Judge: Michael E. Whitaker, Case: 24SMCV04604, Date: 2025-01-23 Tentative Ruling

Case Number: 24SMCV04604    Hearing Date: January 23, 2025    Dept: 207

TENTATIVE RULING - NO. 1

MOTIONS

On September 20, 2024, Plaintiff Wilshire House Association (“Plaintiff”) filed the unlawful detainer complaint in this action against Defendants Moussa Moradieh Kashani (“Moussa”); Daniela Sheridan (“Sheridan”) and Nick Kashani (“Nick”) (collectively,  “Defendants”). 

Moussa demurs to the complaint on the grounds that it fails to state facts sufficient to constitute a cause of action and uncertainty, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f), respectively.  Moussa also moves to strike the request for attorneys’ fees from the complaint. 

Plaintiff opposes the demurrer but has filed a non-opposition to the motion to strike. 

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.    UNCERTAINTY

“[D]emurrers for uncertainty are disfavored.”  (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)  A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her.  (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)  Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers.  (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.) 

Although Moussa raises the demur in part on the grounds that the complaint is uncertain, pursuant to Code of Civil Procedure section 430.10, subdivision (f), Moussa does not demonstrate that any portions of the Complaint are so bad that Moussa cannot reasonably determine what issues must be admitted or denied, or what claims are directed against Moussa. 

The Court thus declines to sustain Moussa’s demurrer on the basis of uncertainty. 

B.    FAILURE TO STATE A CAUSE OF ACTION

Where a property has been sold pursuant to a writ of sale, upon the foreclosure and the perfecting of title, a person who holds over and continues in possession thereof may be removed therefrom after a three-day written notice to quit the property has been served upon the person, and if there is a subtenant in actual occupation of the premises, also upon such subtenant, as prescribed in Code of Civil Procedure section 1162.  (Code Civ. Proc., § 1161a, subd. (b)(2).) 

Here, Plaintiff has alleged as follows:

6. Prior to November 1, 2021, Defendant Kashani was in arrears on amounts owed o Plaintiff which had been assessed in accordance with the Third Amended and Restated Declaration of Covenants, Conditions and Restrictions for the Wilshire House Association.

7. Witkin & Neal, Inc. was the duly appointed trustee, under the Notice of Delinquent Assessment Lien recorded on November 1, 2021 as Instrument No. 2021-1632261, as amended by Instrument No. 2022-0125341, recorded February 1, 2022, authorized to sell the Property. A true and correct copy of the Notice of Delinquent Assessment Lien and the amendment are attached hereto as Exhibits 2 and 3 and incorporated herein by reference. The levying officer/non-judicial foreclosure trustee was Witkin & Neal, Inc.

8. Thereafter, a Notice of Default and Election to Sell Under Notice of Delinquent Assessment and Claim of Lien was duly recorded. A true and correct copy of the Notice of Default and Election to Sell is attached hereto and incorporated herein by reference as Exhibit 4.

9. Thereafter, a Notice of Sale was duly recorded. A true and correct copy of the Notice of Sale is attached hereto and incorporated herein by reference as Exhibit 5.

10. Thereafter, pursuant to the authority granted to Plaintiff and in the manner provided by law, the Property was duly sold and Plaintiff purchased the Property.

11. The creditor of the foreclosure sale was Plaintiff. The debtor was Defendant Kashani. The sale was advertised and conducted according to the applicable provisions of the California Civil Code and the Code of Civil Procedure. The foreclosure sale took place on May 16, 2024. The successful bidder was Plaintiff. The Property was sold to Plaintiff subject to Defendant Kashani’s right of redemption pursuant to Code of Civil Procedure, Section 729.035. 12. On May 24, 2024, a Certificate of Sale was recorded with the Los Angeles County Recorder as Instrument No. 2024-0340752. A true and correct copy of the Certificate of Sale is attached hereto as Exhibit 6 incorporated herein by reference.

13. The Property was not redeemed by the date of redemption.

14. Title to the Property was perfected in Plaintiff on August 21, 2024, as confirmed by the Trustee's Deed Upon Sale, which is attached hereto as Exhibit 1 and incorporated herein by reference.

15. Plaintiff served Defendants pursuant to Code of Civil Procedure, Section 1161a, with a three day notice (the “Notice”) to vacate the Property within three days (excluding Saturdays, Sundays and other judicial holidays) of the service of the Notice.

16. Plaintiff notified Defendants that if they failed to vacate and deliver the Property to Plaintiff within such three days (exclusive of Saturdays, Sundays and other judicial holidays) of the service of the Notice, the Plaintiff would commence these legal proceedings to: (1) recover possession of the Property, (2) recover damages for each day that Defendants occupy the Property after the period covered by the Notice, and (3) other appropriate relief. A true and correct copy of the Notice is attached hereto as Exhibit 7 and incorporated herein by reference.

17. On September 2, 2024, the Notice was served on Defendants by posting and mailing. A true and correct copy of the Proof of Service of the Notice is attached hereto as Exhibit 8 and incorporated herein by reference.

18. More than three days (exclusive of Saturdays, Sundays and judicial holidays) have expired since the expiration of time and service of the Notice. Defendants have failed and refuse to vacate the Property.

19. By reason of the perfection of title in Plaintiff, Plaintiff is entitled to possession of the Property.

20. The failure of Defendants to vacate the Property is causing Plaintiff damages in the amount of at least $ 333 per day, being the fair market value of the rental of the Property based upon a fair market rental value of $10,000 per month.

(Complaint ¶¶ 6-20.)

Moussa demurs on the ground that the allegations only state that one of the Defendants was the prior owner, and therefore, the other tenants must be given 30-90 days’ notice to pay or quit, pursuant to Code of Civil Procedure sections 1161a and 1161b, which is not alleged.

Here, the Complaint alleges that Moussa was the prior owner (Complaint ¶ 3.)  Thus, the 30- or 90-day notice periods that apply to subtenants do not apply to Moussa.  As such, this is not a proper ground to sustain a demurrer as to Moussa.

2.     MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) 

Moussa moves to strike Plaintiff’s request for attorneys’ fees and Plaintiff has filed a non-opposition to the motion to strike.  Therefore, the Court grants Moussa’s motion to strike attorneys’ fees from the Complaint.

3.     LEAVE TO AMEND

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v. Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiff has filed a non-opposition to Moussa’s motion to strike, and has not requested leave to amend the requested attorney’s fees or presented the Court with any additional facts in support thereof.    

CONCLUSION AND ORDER

For the reasons stated, the Court overrules Moussa’s Demurrer.

Further, the Court grants Moussa’s unopposed Motion to Strike in its entirety, and orders the identified requests for attorneys’ fees stricken from the Complaint without leave to amend. 

Further, the Court orders Moussa to file an Answer to the Complaint on or before January 28, 2025. 

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

DATED:  January 23, 2025                                                    ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court

TENTATIVE RULING - NO. 2

MOTIONS

On September 20, 2024, Plaintiff Wilshire House Association (“Plaintiff”) filed the unlawful detainer complaint against Defendants Moussa Moradieh Kashani (“Moussa”); Daniela Sheridan (“Sheridan”) and Nick Kashani (“Nick”) (collectively “Defendants”). 

Sheridan and Nick (“Moving Defendants”) demur to the complaint on the grounds that it fails to state facts sufficient to constitute a cause of action and uncertainty pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f), respectively.  Moving Defendants also move to strike the request for attorneys’ fees from the complaint. 

Plaintiff opposes the demurrer but has filed a non-opposition to the motion to strike. 

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.    UNCERTAINTY

“[D]emurrers for uncertainty are disfavored.”  (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)  A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her.  (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)  Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers.  (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.) 

Although Moving Defendants raise the demur in part on the grounds that the complaint is uncertain, pursuant to Code of Civil Procedure section 430.10, subdivision (f), they do not demonstrate that any portions of the Complaint are so bad that they cannot reasonably determine what issues must be admitted or denied, or what claims are directed against them. 

The Court thus declines to sustain the demurrer on the basis of uncertainty. 

B.    FAILURE TO STATE A CAUSE OF ACTION

Where a property has been sold pursuant to a writ of sale, upon the foreclosure and the perfecting of title, a person who holds over and continues in possession thereof may be removed therefrom after a three-day written notice to quit the property has been served upon the person, and if there is a subtenant in actual occupation of the premises, also upon such subtenant, as prescribed in Code of Civil Procedure section 1162.  (Code Civ. Proc., § 1161a, subd. (b)(2).) 

However, a tenant or subtenant in possession of a rental housing unit which has been so sold, “who rents or leases the rental housing unit either on a periodic basis from week to week, month to month, or other interval, or for a fixed period of time, shall be given written notice to quit pursuant to Section 1162, at least as long as the term of the hiring itself but not exceeding 30 days, before the tenant or subtenant may be removed therefrom as prescribed in this chapter.”  (Code Civ. Proc., § 1161a, subd. (c).)

Further, “Notwithstanding Section 1161a, a tenant or subtenant in possession of a rental housing unit under a month-to-month lease or periodic tenancy at the time the property is sold in foreclosure shall be given 90 days’ written notice to quit pursuant to Section 1162 before the tenant or subtenant may be removed from the property as prescribed in this chapter.”  (Code Civ. Proc., § 1161b, subd. (a).)

Here, Plaintiff alleges:

6. Prior to November 1, 2021, Defendant Kashani was in arrears on amounts owed o Plaintiff which had been assessed in accordance with the Third Amended and Restated Declaration of Covenants, Conditions and Restrictions for the Wilshire House Association.

7. Witkin & Neal, Inc. was the duly appointed trustee, under the Notice of Delinquent Assessment Lien recorded on November 1, 2021 as Instrument No. 2021-1632261, as amended by Instrument No. 2022-0125341, recorded February 1, 2022, authorized to sell the Property. A true and correct copy of the Notice of Delinquent Assessment Lien and the amendment are attached hereto as Exhibits 2 and 3 and incorporated herein by reference. The levying officer/non-judicial foreclosure trustee was Witkin & Neal, Inc.

8. Thereafter, a Notice of Default and Election to Sell Under Notice of Delinquent Assessment and Claim of Lien was duly recorded. A true and correct copy of the Notice of Default and Election to Sell is attached hereto and incorporated herein by reference as Exhibit 4.

9. Thereafter, a Notice of Sale was duly recorded. A true and correct copy of the Notice of Sale is attached hereto and incorporated herein by reference as Exhibit 5.

10. Thereafter, pursuant to the authority granted to Plaintiff and in the manner provided by law, the Property was duly sold and Plaintiff purchased the Property.

11. The creditor of the foreclosure sale was Plaintiff. The debtor was Defendant Kashani. The sale was advertised and conducted according to the applicable provisions of the California Civil Code and the Code of Civil Procedure. The foreclosure sale took place on May 16, 2024. The successful bidder was Plaintiff. The Property was sold to Plaintiff subject to Defendant Kashani’s right of redemption pursuant to Code of Civil Procedure, Section 729.035. 12. On May 24, 2024, a Certificate of Sale was recorded with the Los Angeles County Recorder as Instrument No. 2024-0340752. A true and correct copy of the Certificate of Sale is attached hereto as Exhibit 6 incorporated herein by reference.

13. The Property was not redeemed by the date of redemption.

14. Title to the Property was perfected in Plaintiff on August 21, 2024, as confirmed by the Trustee's Deed Upon Sale, which is attached hereto as Exhibit 1 and incorporated herein by reference.

15. Plaintiff served Defendants pursuant to Code of Civil Procedure, Section 1161a, with a three day notice (the “Notice”) to vacate the Property within three days (excluding Saturdays, Sundays and other judicial holidays) of the service of the Notice.

16. Plaintiff notified Defendants that if they failed to vacate and deliver the Property to Plaintiff within such three days (exclusive of Saturdays, Sundays and other judicial holidays) of the service of the Notice, the Plaintiff would commence these legal proceedings to: (1) recover possession of the Property, (2) recover damages for each day that Defendants occupy the Property after the period covered by the Notice, and (3) other appropriate relief. A true and correct copy of the Notice is attached hereto as Exhibit 7 and incorporated herein by reference.

17. On September 2, 2024, the Notice was served on Defendants by posting and mailing. A true and correct copy of the Proof of Service of the Notice is attached hereto as Exhibit 8 and incorporated herein by reference.

18. More than three days (exclusive of Saturdays, Sundays and judicial holidays) have expired since the expiration of time and service of the Notice. Defendants have failed and refuse to vacate the Property.

19. By reason of the perfection of title in Plaintiff, Plaintiff is entitled to possession of the Property.

20. The failure of Defendants to vacate the Property is causing Plaintiff damages in the amount of at least $ 333 per day, being the fair market value of the rental of the Property based upon a fair market rental value of $10,000 per month.

(Complaint ¶¶ 6-20.)

Moving Defendants demur on the ground that the allegations only state that Moussa was the prior owner, and therefore, the other tenants must be given 30-90 days’ notice to pay or quit, pursuant to Code of Civil Procedure sections 1161a and 1161b, which is not alleged.

In opposition, Plaintiff argues that whether Moving Defendants were provided with adequate notice is an affirmative defense not appropriate to raise on demurrer.  Plaintiff also presents argument that Moving Defendants are Moussa’s girlfriend and son, not subtenants to whom a 30- or 90-day notice to pay or quit must be presented.

The Court disagrees that Moving Defendants’ argument is an affirmative defense.  Providing the requisite quit notice is an element of Plaintiff’s unlawful detainer claim.  As such, Plaintiff must allege facts that all Defendants have been provided with requisite quit notices under the applicable statutes.  Here, Plaintiff has not alleged facts sufficient to demonstrate that the 3-day quit notice was adequate as to Moving Defendants.

Therefore, the Court sustains Moving Defendants’ demurrer.

2.     MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) 

Moving Defendants move to strike Plaintiff’s request for attorneys’ fees and Plaintiff has filed a non-opposition to the motion to strike.  Therefore, the Court grants Moving Defendants’ motion to strike attorneys’ fees from the Complaint.

3.     LEAVE TO AMEND

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v. Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, with respect to the demurrer, Plaintiff has presented argument that the Moving Defendants were not formal tenants or subtenants to whom the 30- and/or 90- day notice periods apply.  As such, the Court grants Plaintiff leave to amend the unlawful detainer cause of action as to Moving Defendants.

With respect to the motion to strike, Plaintiff has filed a non-opposition to the motion to strike, and has not requested leave to amend the requested attorneys fees or presented the Court with any additional facts in support thereof.  As such, the Court does not grant Plaintiff leave to amend the request for attorneys’ fees.

CONCLUSION AND ORDER

For the reasons stated, the Court sustains Moussa’s Demurrer with leave to amend.

Further, the Court grants Moving Defendants’ unopposed Motion to Strike in its entirety, and orders the identified requests for attorneys’ fees stricken from the Complaint without leave to amend. 

Plaintiff shall file and serve a First Amended Complaint in conformance with this order on or before January 28, 2025.

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

DATED:  January 23, 2025                                                    ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court