Judge: Michael E. Whitaker, Case: 24SMCV03532, Date: 2024-12-03 Tentative Ruling

Case Number: 24SMCV03532    Hearing Date: December 3, 2024    Dept: 207

TENTATIVE RULING

MOTIONS

On July 23, 2024, Plaintiff Sandra Aronberg (“Plaintiff”) filed an unlawful detainer complaint against Defendants Yossie Kohanim (“Yossie”), Ronit Kohanim (“Ronit”) and all unauthorized occupants.

On August 12, 2024, Yossie demurred to the complaint for failure to state facts sufficient to constitute a cause of action, because the complaint fails to allege specific facts that there exists a lease or that Plaintiff is a landlord.   On August 14, 2024, Ronit filed an identical demurrer on the same grounds.

On August 14, 2024, Claimant Ron Adams (“Claimant” or “Adams”) filed a Prejudgment Claim of Right to Possession of the premises.  On August 22, Claimant filed an identical demurrer on the same grounds as Yossie and Ronit.

On September 3, 2024, Plaintiff filed a combined opposition to the demurrers.

On October 9, 2024, Yossie answered the complaint, and on October 10, 2024, Claimant Adams answered. 

On October 10, 2024, Ronit filed a Motion to Quash Service of Summons.  The Motion to Quash is unopposed.

ANALYSIS

1.     DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A.    FAILURE TO STATE A CAUSE OF ACTION

Although a party may file a demurrer and answer at the same time (Code Civ. Proc., § 430.30, subd. (c)), a subsequently-filed answer moots the pending demurrer (See JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477 [“[A]n amendatory pleading supersedes the original one, which ceases to perform any function as a pleading”].)

Thus, it appears that Yossie and Adams have mooted their own pending demurrers by virtue of the answers they subsequently filed.

Regarding Ronit’s still-pending demurrer, paragraph four of the complaint indicates Plaintiff is the owner of the premises, and paragraph six of the complaint provides the terms of the lease at issue.  Therefore, Plaintiff’s unlawful detainer claim does not fail for lack of facts that Plaintiff has standing to bring it or for lack of facts regarding the underlying lease.

2.     MOTION TO QUASH

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.”  (Code Civ. Proc., § 418.10, subd. (a)(1).) 

“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.”  (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440; accord Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160 [“It was incumbent upon plaintiff, after the filing of defendant's motion to quash, to present evidence discharging her burden to establish the requisites of valid service on defendant”]; Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 [“when a defendant challenges the court's personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service’ ”].)   A declaration of service by a registered process server establishes a presumption that the facts stated in the declaration are true. (Evid. Code, § 647; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.)

            “In order to obtain in personam jurisdiction through any form of constructive service there must be strict compliance with the requisite statutory procedures.  (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1417, quoting Stamps v. Superior Court (1971) 14 Cal.App.3d 108, 110.) 

For service on persons within California, generally, service of summons and complaint must be done by personal service.  (Code Civ. Proc., § 415.10.)  However, “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served,” a plaintiff may serve an individual defendant “by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address . . . , in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address . . . , at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.”  (Code Civ. Proc., § 415.20, subd. (b).)   Further, “A summons in an action for unlawful detainer of real property may be served by posting if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in any manner specified in this article other than publication . . . .”  (Code Civ. Proc., § 415.45, subd. (a).)

A court may also exercise jurisdiction over an individual who consents to such jurisdiction.  (Nobel Floral, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 658.)  “Express consent to a court's jurisdiction will occur by generally appearing in an action or by a valid forum-selection clause designating a particular forum for dispute resolution regardless of residence.”  (Ibid. [cleaned up].)  “A defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396b, moves for reclassification pursuant to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant.”  (Code Civ. Proc., § 1014, emphasis added; see also Global Financial Distributors Inc. v. Superior Court (2019) 35 Cal.App.5th 179, 193 [“Filing a demurrer, however, is a general appearance”].) 

Here, Ronit made a general appearance in this action by filing a demurrer to the complaint on August 14, 2024, nearly two months before Ronit filed the motion to quash on October 10, 2024. 

Consequently, the Court finds that Ronit, by making the general appearance, consented to the jurisdiction of this Court and waived any challenge to the proper service of the summons.  Therefore, the Court denies Ronit’s motion to quash as procedurally defective.

CONCLUSION AND ORDER

For the reasons stated, the Court overrules Yossie’s and Adams’ demurrers as moot and substantively overrules Ronit’s demurrer, finding Plaintiff adequately alleged ownership of the subject premises and the terms of the lease at issue. 

The Court also denies Ronit’s motion to quash service, having found that Ronit consented to jurisdiction by making a general appearance through the demurrer filed on August 14, 2024.

Further, the Court orders Ronit to file an Answer to the Complaint on or before December 9, 2024.

Plaintiff shall provide notice of the Court’s ruling and file the notice with a proof of service. 

DATED:  December 3, 2024                                                  ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court