Judge: Melvin D. Sandvig, Case: 22CHCV01132, Date: 2023-03-07 Tentative Ruling

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Case Number: 22CHCV01132    Hearing Date: March 7, 2023    Dept: F47

Dept. F47

Date: 3/7/23

Case #22CHCV01132

DEMURRER TO THE FIRST AMENDED COMPLAINT

Demurrer filed on 2/14/23. 

MOVING PARTY: Defendant Cynthia R. Bosak

RESPONDING PARTY: Plaintiff Wilbur Parthenia, LLC

Demurrer is to the entire First Amended Complaint for unlawful detainer. 

RULING: The demurrer is overruled.  Answer is due within 5 days. 

This is a commercial unlawful detainer action filed by Plaintiff Wilbur Parthenia, LLC (Plaintiff) against Defendant Cynthia R. Bosak (Defendant) regarding premises located at 8626 Wilbur Avenue, Unit B, Northridge, California 91324.  (See FAC, p.1 ¶3.a and Ex.1, p.1 ¶1 attached thereto).

On 2/14/23, Defendant filed the instant demurrer to the First Amended Complaint on the grounds of: (1) failure to state a cause of action (CCP 430.10(e)) and (2) uncertainty (CCP 430.10(f)).  Plaintiff has opposed the demurrer and Defendant has filed a reply to the opposition. 

Defendant contends that the First Amended Complaint fails to allege sufficient facts to state a claim for unlawful detainer and is uncertain because there is an issue with regard to the amount of rent due and/or whether Defendant paid the amount actually due and owing on the commercial lease.  Additionally, Defendant argues that insufficient facts are alleged to establish that the 3-day notice to pay or quit was properly served.  Defendant also contends that the lack of such facts renders the allegations in the First Amended Complaint uncertain.     

To state a claim for unlawful detainer, a complaint must (1) be verified; (2) allege the facts on which the plaintiff seeks to recover, (3) describe the premises with reasonable particularity; (4) state the amount of rent in default; and (5) state the manner in which the defendant served the notice.  See CCP 1166(a)(1)-(5).  The verified First Amended Judicial Council Form Complaint meets the foregoing pleading requirements.  (See FAC, p.1, No.3, p.2, Nos.6, 9, 10, 12, 13, p.4, verification and FAC generally).

The demurrer is improperly based on facts outside the pleading.  See Blank (1985) 39 C3d 311, 318; Ion Equipment Corp. (1980) 110 CA3d 868, 881.  At the pleading stage, the Court must accept all properly pled facts as true.  See Del E. Webb Corp. (1981) 123 CA3d 593, 604.  For example, the amount of rent due and owing and/or whether or not Defendant paid the amount of rent due and owing is a question of fact which cannot be resolved on demurrer. 

Based on the foregoing, the demurrer is overruled.  Answer is due within 5 days.