Judge: Michael Shultz, Case: 22CMCV00677, Date: 2023-02-02 Tentative Ruling
Case Number: 22CMCV00677 Hearing Date: February 2, 2023 Dept: A
22CMCV00677
Omninet Hamilton, LP v. Center for Autism and Related Disorders, LLC
[TENTATIVE] ORDER
I.
BACKGROUND
This unlawful detainer action was
filed on December 13, 2022 and arises from Defendant’s alleged failure to pay
rent pursuant to a written commercial lease agreement.
II.
ARGUMENTS
Defendant filed its demurrer on December
23, 2022, contending that the three-day notice to pay rent or quit did not
state that weekends and holidays were excluded. The notice did not inform when
rent was due or when the notice period expired. Therefore, the complaint fails
to state a claim for unlawful detainer.
Plaintiff filed its opposition on January
20, 2023, arguing that the three-day notice to pay rent or quit notice complies
with statutory requirements. The notice is not required that state that the
notice period excludes weekends and holidays. There is no confusion about the
notice period which is described as “three business days.” The notice indicates when rent is due.
Plaintiff is not required to
attach the lease agreement or proof of service of the three-day notice to pay
rent or quit notice.
The Court’s file does not reflect
that Defendant filed a reply brief.
III.
LEGAL STANDARDS
The bases for demurrer are limited
by statute and may be sustained in pertinent part on grounds of lack of
jurisdiction or failure to state facts sufficient to state a cause of action.
Code Civ. Proc., § 430.10. A demurrer
“tests the sufficiency of a complaint as a matter of law and raises only
questions of law.” Schmidt v. Foundation Health
(1995) 35 Cal.App.4th 1702, 1706. In testing the sufficiency of the complaint,
the court must assume the truth of (1) the properly pleaded factual
allegations; (2) facts that can be reasonably inferred from those expressly pleaded;
and (3) judicially noticed matters. Blank v. Kirwan (1985) 39
Cal.3d 311, 318. The court may not consider contentions, deductions, or
conclusions of fact or law. Moore v. Conliffe (1994) 7
Cal.4th 634, 638. Because a demurrer tests the legal sufficiency of a pleading,
the plaintiff must show that the pleading alleges facts sufficient to establish
every element of each cause of action. Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.
The court accepts “as true both
facts alleged in the text of the complaint and facts appearing in exhibits
attached to it. If the facts appearing in the attached exhibit contradict those
expressly pleaded, those in the exhibit are given precedence.” Mead v. Sanwa Bank California
(1998) 61 Cal. App. 4th 561, 567-568.
IV.
DISCUSSION
A tenant is guilty of unlawful
detainer if the tenant continues in possession after default in the payment of
rent pursuant to the lease agreement and the tenant is served with three days’
notice requiring payment, among other particulars. Code Civ. Proc., § 1161, subd. (2). A lessor must allege and prove proper service of the required
notice. Liebovich v. Shahrokhkhany (1997) 56 Cal.App.4th 511, 513.
Contrary to Defendant’s argument,
the statute does not require that the notice include language stating that
weekends and holidays are excluded in calculating the notice period. Rather, the
notice is required to state: “the amount that is due, the name, telephone
number, and address of the person to whom the rent payment shall be made, and,
if payment may be made personally, the usual days and hours that person will be
available to receive the payment." Code Civ. Proc., § 1161 subd. (2).
The notice meets all of the foregoing requirements.
The notice requires compliance
“within THREE (3) business days” of service. Complaint, Ex. 2. Therefore, the due
date for compliance is not uncertain. Additionally, a copy of the notice of
termination and lease agreement is required for residential property. Code Civ. Proc., § 1166 subd. (d). The
complaint alleges that the Defendant signed a commercial lease agreement.
Complaint, ¶ 7.a.
The complaint is also required to "(5)
State specifically the method used to serve the defendant with the notice or
notices of termination upon which the complaint is based. This requirement may
be satisfied by using and completing all items relating to service of the
notice or notices in an appropriate Judicial Council form complaint, or by
attaching a proof of service of the notice or notices of termination served on
the defendant." Code Civ. Proc., § 1166 subd. (a)(5).
Here, the complaint alleges that the notice was served on the Defendant “in the
manner specified in a written commercial lease agreement.” Complaint, ¶ 10. (5).
V.
CONCLUSION
Based on the foregoing, the
demurrer is OVERRULED. Defendant is ordered to file an answer within five days.