Judge: Maurice A. Leiter, Case: 23STCV20241, Date: 2023-10-16 Tentative Ruling

Case Number: 23STCV20241    Hearing Date: October 16, 2023    Dept: 54

Hearing Date: October 16, 2023

Department 54, Judge Maurice A. Leiter

Demurrer to Complaint

Moving Party: Defendants Project Metals, Power Fasteners and Patrick Harrington

Responding Party: Plaintiff 5850 Avalon LLC

T/R:      DEFENDANTS’ DEMURRER IS SUSTAINED WITH LEAVE TO AMEND.

PLAINTIFF TO FILE AND SERVE A FIRST AMENDED COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING. DEFENDANTS TO FILE AND SERVE A RESPONSE WITHIN 30 DAYS THEREAFTER.

DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On August 23, 2023, Plaintiff 5850 Avalon LLC filed a commercial unlawful detainer complaint against Defendants Project Metals, Power Fasteners, and Patrick Harrington.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

Defendants demur to the complaint on the ground that Plaintiff failed to provide legally adequate notice of the 3-day Notice to Pay Rent or Quit. Defendants assert that the notice itself and the notice and complaint contain conflicting rental amounts purportedly due.

CCP § 1161(2) provides in pertinent part, “When the tenant continues in possession, in person or by subtenant, without the permission of the landlord, or the successor in estate of the landlord, if applicable, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days' notice, excluding Saturdays and Sundays and other judicial holidays, in writing, requiring its payment, stating the amount that is due, the name, telephone number, and address of the person to whom the rent payment shall be made...”

The notice states that past due rent amounts to $112,500.00 in the body of the notice and $105,000.00 in the itemization. In opposition, Plaintiff asserts this does not conflict because Defendants “knew” the true amount due is $112,500.00 and the discrepancy is explained by Defendants’ partial payment of rent before the notice was served. These facts are not alleged in the complaint. It is immaterial what Defendants purportedly “knew” regarding the amount of rent due as it relates to the contents of the notice pay or quit. Plaintiff has failed to allege proper notice.

Defendants’ demurrer is SUSTAINED with leave to amend.