Judge: Michael Shultz, Case: 22CMUD00702, Date: 2022-10-19 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.
2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and
3. Serve notice of the Court's ruling on all parties entitled to receive service.
If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
TENTATIVE RULINGS -- http://www.lacourt.org/tentativeRulingNet/u
Case Number: 22CMUD00702 Hearing Date: October 19, 2022 Dept: A
22CMUD00702
Weiss Investment Properties, LP v. Jay Anthony Eaton
[TENTATIVE] ORDER
DENYING
I.
BACKGROUND FACTS
This is an unlawful detainer
action involving residential real property pursuant to a written lease
agreement. Plaintiff served on Defendant a three-day notice to pay rent or
quit. Plaintiff sues for past-due rent and damages. Plaintiff filed the First
Amended Complaint (“FAC”) on August 30, 2022. Defendant, Jay Anthony Eaton,
filed his answer on September 30, 2022.
Defendant filed this Motion for
Judgment on the Pleading on September 30, 2022, after the court sustained Defendant’s
demurrer to Plaintiff’s Complaint on August 29, 2022, with leave to amend.
II.
ARGUMENTS
Defendant argues that the FAC is
improperly verified. Additionally, Rochelle Handy, who attempts to verify the
FAC states legal conclusions, not evidentiary facts. The declaration lacks personal
knowledge and is based on hearsay. Defendant contends that the FAC does not
include proof of proper service of the three-day notice to pay rent or quit.
Plaintiff filed its opposition on
October 5, 2022, arguing that the motion is procedurally defective in that
Defendant did not provide proper notice. Contrary to Defendant’s contention,
the FAC is properly verified. Regardless, Defendant’s remedy was to move to
strike the pleading. Therefore, Defendant has waived that purported defect.
Plaintiff also argues that it is
not required to attach the proof of service of the three-day notice since the
face of the pleading alleges the method of service. The FAC otherwise alleges
facts to support the elements of an unlawful detainer claim.
Defendant’s reply, filed on
October 10, 2022, argues that Plaintiff failed to post and mail the three-day
notice which is a requirement prior to taking possession of the subject
property. Defendant contends he served
the motion by overnight mail. In the alternative, Defendant asks that the court
set the hearing of this motion on the date of trial.
III.
LEGAL STANDARDS
The two statutory grounds for
a defendant’s motion for judgment on the pleadings is either that the court
does not have jurisdiction of the subject of the cause of action, or the
complaint does not state facts sufficient to constitute a cause of action against
that defendant. Code Civ. Proc., § 438
subd. (c)(B).
A motion for judgment on the pleadings
performs the same function as a general demurrer and attacks only defects
disclosed on the face of the pleadings or by matters subject to judicial
notice. Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064. Accordingly, all
properly alleged material facts are deemed true as well as all facts that may
be implied or inferred from those expressly alleged. Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.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 complaint, the plaintiff must show that the complaint alleges
facts sufficient to establish every element of each cause of action. Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.
IV.
DISCUSSION
The proof of service attached to
the motion is defective in two respects. It purports to serve Defendant’s
answer, not this motion. Additionally, Defendant untimely served the motion by
mail on September 30, 2022. Defendant was required to serve Plaintiff by
September 22, 2022, to give Plaintiff 16 court days of notice increased by five
calendar days for service by mail. Code Civ. Proc., § 1005 subd. (b).
However, under certain circumstances, a party may be
deemed to have waived any irregularity in the notice by opposing the motion, appearing
at the hearing, not asking for a continuance, and not demonstrating any
prejudice resulting from the shortened notice.
The general rule holds “that one who has been notified to
attend a certain proceeding and does do so, cannot be heard to complain of
alleged insufficiency of the notice; it has in such instance served its
purpose. This rule applies to one who appears in a lawsuit after defective
service of process upon him [citation], to one who responds to a notice of
motion without adequate notice [citation].”Carlton v. Quint (2000) 77 Cal.App.4th 690, 697. Plaintiff was able to file a written
opposition which the court has considered. Accordingly, Plaintiff has not
suffered any prejudice from defective notice.
A challenge to a complaint for lack of verification is properly
addressed by way of a motion to strike. Perlman
v. Municipal Court (1979) 99 Cal.App.3d 568, 575 [“…
the proper objection where a party fails to verify a pleading is a motion to
strike."]. Moreover, any defect in verification is not fatal as it is
easily cured by amendment. Board
of Trustees v. Superior Court (2007) 149 Cal.App.4th 1154,
1163-1164 [“to verify a pleading, where the verification is required by
statute, ‘is a mere defect curable by amendment.’”].
Regardless, the FAC is properly verified. The verification
may be made by a party or his or her attorney. The affidavit of the party shall
state that “… the same is true of his own knowledge, except as to the matters
which are therein stated on his or her information or belief, and as to those
matters that he or she believes it to be true … .” Code
Civ. Proc., § 446 subd. (a). A verification is sufficient if
it “appears to be made by a person authorized by law to do so and complies in
form and substance with the statutory provisions.” French
v. Smith Booth Usher Co. (1942) 56 Cal.App.2d 23, 29.
The FAC is verified by Rochelle Handy, a partner for
Weiss Investment Properties, LP, Plaintiff herein. FAC, .pdf page 7. Therefore,
it is properly verified by a party and contains the affirmation required by
statute.
The FAC properly alleges service of the three-day notice
to pay rent or quit. The Plaintiff has the option of stating “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.
The FAC is made on a Judicial Council Form complaint and
alleges that Plaintiff served a three-day notice on Defendant on June 15, 2022,
which is also attached as Exhibit 2 to the FAC. FAC, ¶9.b. Plaintiff alleges
the notice was served by posting a copy on the premises on June 10, 2022 and by
mailing a copy to defendant at the premises on the same date because no person
of suitable age or discretion could be found as permitted by statute. FAC, ¶ 10.a.(3),
Code
Civ. Proc., § 1162, subd.(a)(3). Service of the three-day
notice is properly alleged.
V.
CONCLUSION
Based on the foregoing, Defendant’s Motion for Judgment
on the Pleading is DENIED.