Judge: Michael Shultz, Case: 22CMCV00759, Date: 2023-02-09 Tentative Ruling

Case Number: 22CMCV00759    Hearing Date: February 9, 2023    Dept: A

22CMCV00759 Olga Azocar v. Pamela Goff

Thursday, February 9, 2023 at 8:30 a.m.

[TENTATIVE] ORDER SUSTAINING DEMURRER TO COMPLAINT WITH FIVE DAYS LEAVE TO AMEND

I.            BACKGROUND

This unlawful detainer action was filed on December 30, 2022, and arises from Defendant’s alleged failure to pay rent pursuant to a written residential lease agreement.

II.            ARGUMENTS

Defendant argues that the complaint is defective in that the three-day notice to pay rent or quit allegedly served was not attached to the complaint. There is no indication the notice was in fact served. Therefore, the complaint fails to state a cause of action for unlawful detainer.

Plaintiff argues the notice and lease are not required to be attached to the complaint where the action is commenced solely for Defendant’s failure to pay rent. The scheduled date for hearing on demurrer is beyond the required 20 days of filing the demurrer as required by statute.

The Court’s file does not reflect that Defendant filed a reply brief.

III.            DISCUSSION

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.

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.  

Service of the three-day notice to pay rent or quit is required where the tenant continues in possession without permission after default in the payment of rent, pursuant to the lease agreement. Code Civ. Proc., § 1161 subd. (2). As this action concerns residential property, Plaintiff is required to attach a copy of the notice of termination served on the Defendant. Code Civ. Proc., § 1166 subd. (d)(1)(A). The lease agreement need not be attached if the action is based solely on the tenant’s default in the payment of rent as it is in this case. Code Civ. Proc., § 1166 subd. (d)(1)(B)(iii).

Contrary to Plaintiff’s argument, the complaint is defective because Plaintiff did not attach the three-day notice to pay rent or quit. Code Civ. Proc., § 1166, subd. (d)(1)(A). Accordingly, the court grants five days leave to amend to include the attachments. Code Civ. Proc., § 1166 subd. (d)(2).

A demurrer must be set for hearing not more than 35 days after it is filed or on the first available date thereafter. Cal. Rules of Ct. 3.1320 subd. (d). The rule does not provide for a shortened notice period. While trial shall be held no later than the 20th day following the request to set the time for trial once the Defendant appears, Defendant has the right to demur, and Plaintiff did not move for an order to set an earlier hearing date. Id. Code Civ. Proc., § 1170.

IV.            CONCLUSION

     Based on the foregoing, demurrer is SUSTAINED with five days leave to amend for Plaintiff to attach the three-day notice to pay rent or quit. Code Civ. Proc., § 1166, subd. (d)(1)(A).