Judge: Michael P. Linfield, Case: 22STCV36299, Date: 2023-01-06 Tentative Ruling
Case Number: 22STCV36299 Hearing Date: January 6, 2023 Dept: 34
SUBJECT: Demurrer
Moving Party: Defendant
Alexandra Williams
Resp. Party: None
The Demurrer is SUSTAINED.
PRELIMINARY
COMMENT:
This demurrer is unopposed, yet plaintiff has not indicated that it is
planning on filing an amended complaint.
The Court finds such silence to be troubling. If plaintiff believed that the demurrer
should be overruled, it should have filed an opposition. If plaintiff agreed that the complaint needed
to be amended, it should have agreed when meeting-and-conferring with
defendants to amend the complaint or file a first amended complaint. Had it done so, the court and its staff would
not have had to spend the time analyzing a demurrer to a complaint that even
plaintiff agrees must be amended.
BACKGROUND:
On November 29, 2022,
Defendant filed their Demurrer. Defendant concurrently filed their Request for
Judicial Notice.
Plaintiff
has not filed an opposition or other response to the Demurrer.
ANALYSIS:
I.
Request for Judicial Notice
Plaintiff requests judicial notice of: (1)
City of Los Angeles Ordinance No. 186585, dated March 27, 2020; and (2) City of
Los Angeles Ordinance No. 186606, dated May 6, 2020.
The Court GRANTS judicial notice of these two
items.
II.
Legal Standard
A demurrer is a pleading used to test the legal sufficiency of other
pleadings. It raises issues of law, not fact, regarding the form or content of
the opposing party’s pleading. It is not the function of the demurrer to
challenge the truthfulness of the complaint; and for the purpose of the ruling
on the demurrer, all facts pleaded in the complaint are assumed to be true,
however improbable they may be. (Code Civ. Proc., §§ 422.10, 589.)
A demurrer can be used only to challenge defects that appear on the
face of the pleading under attack; or from matters outside the pleading that
are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No
other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A
demurrer is brought under Code of Civil Procedure section 430.10 (grounds),
section 430.30 (as to any matter on its face or from which judicial notice may
be taken), and section 430.50(a) (can be taken to the entire complaint or any
cause of action within).
A demurrer may be brought under Code of Civil Procedure section 430.10,
subdivision (e) if insufficient facts are stated to support the cause of action
asserted. A demurrer for uncertainty (Code of Civil Procedure section 430.10,
subdivision (f)), is disfavored and will only be sustained where the pleading
is so bad that defendant cannot reasonably respond—i.e., cannot reasonably
determine what issues must be admitted or denied, or what counts or claims are
directed against him/her. (Khoury v. Maly's of Calif., Inc. (1993) 14
Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague,
“ambiguities can be clarified under modern discovery procedures.” (Id.)
III.
Discussion
Defendant demurs as to the entire
Complaint, arguing: (1) that the Complaints for Unlawful Detainer fails to
state a cause of action because of the executive orders and ordinances enacted
during the COVID-19 pandemic; (2) that the Complaint for Unlawful Detainer is
not properly verified by Plaintiff but rather improperly verified by
Plaintiff’s Counsel; and (3) that Plaintiff lacks standing. (Demurrer, pp.
2:17–26, 3:1–22, 3:23–25, 4:1–2, 4:22.)
Plaintiff has not filed an
opposition or otherwise responded to the Demurrer.
the Court agrees with Defendant that
Plaintiff has not sufficiently explained why it would be statutorily-compliant
for Plaintiff’s Counsel to verify the Complaint on behalf of Plaintiff. (Code
Civ. Proc., § 1166, subd. (a)(1); DeCamp v. First Kensington Corp. (1978)
83 Cal.App.3d 268, 275.) The verification,
which is signed by Plaintiff’s counsel, states, “The Plaintiff is
absent from the County of Orange, California, where I have my office and I make
this verification for and on behalf of the party for that reason. I have read
the attached Complaint for Unlawful Detainer and know its contents. I am
informed and believe, and on that ground allege, that the matters stated in it
are true.” (Verification to Complaint, executed
10/31/22, and filed
11/14/2022.) This is insufficient. There
is no indication why Plaintiff is absent from Orange County, how long Plaintiff
has been absent, or when Plaintiff will return.
There is no foundation given for how counsel knows that Plaintiff is absent. Counsel’s statements that she “believes” the matters
stated in the complaint are true are most likely based on hearsay.
The pleadings are insufficiently
verified and thus do not comply with the statutory requirements for a Complaint
for Unlawful Detainer.
The Supreme Court recently noted
that “a defendant [in an unlawful detainer case] may object to a complaint that
does not adhere to the pleading requirements of section 1166 by demurrer.” (Stancil
v. Super. Ct. (2021) 11 Cal.5th 381, n. 4.) Further, unlawful detainers
proceedings “are limited in scope and demand strict adherence to the statutes’
procedural requirements.” (Id. at 390.)
The Court SUSTAINS the Demurrer on
the basis that Plaintiff has not properly verified the Complaint for Unlawful
Detainer.
IV. Conclusion
The Demurrer is SUSTAINED.