Judge: Michael Shultz, Case: 23CMCV00347, Date: 2023-04-18 Tentative Ruling
Case Number: 23CMCV00347 Hearing Date: April 18, 2023 Dept: A
23CMCV00347
Compton Commercial Development Renaissance Plaza, LLC v. So Cal Compton, LLC
etc.
[TENTATIVE] ORDER
I.
BACKGROUND
The
complaint for unlawful detainer alleges that Defendant breached an agreement to
pay rent for commercial real property. Plaintiff served a five-day notice to
pay rent or quit, which Defendant did not cure. Defendant remains in possession
of the premises.
II.
ARGUMENTS
Defendant
argues that the five-day notice was served at the wrong address and does not
satisfy statutory or contractual notice requirements. Plaintiff argues that the
demurrer improperly argues the merits of the case and relies on documents
outside the complaint. Defendant improperly imposes notice requirements not
rooted in the law.
III.
LEGAL STANDARDS
The bases for demurrer
are limited by statute and may be sustained for 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). 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).
IV.
DISCUSSION
To
state a claim for unlawful detainer based on nonpayment of rent, Plaintiff must
allege facts showing that “(1) the
tenant is in possession of the premises; (2) that possession is without
permission; (3) the tenant is in default for nonpayment of rent; (4) the tenant
has been properly served with a written three-day notice; and (5) the default
continues after the three-day notice period has elapsed." (Borsuk v. Appellate Division of Superior Court (2015)
242 Cal.App.4th 607, 613.)
Plaintiff
alleges that Defendant remains in possession without permission, is in default
for non-payment of rent, that Plaintiff served Defendant with a 5-day notice stating
the reasonable amount of rent due, and that Defendant did not tender the amount
demanded after the 5-day period elapsed. (Complaint, ¶¶10-13). Whether Plaintiff
properly served the notice to pay rent or quit according to applicable statutes
or the provisions of the parties’ lease agreement is a matter of proof to be
resolved at trial. (Lacrabere v. Wise (1904) 141 Cal. 554, 556 [“It is equally essential to allege the service of such
demand in the complaint, and, if controverted, prove it on the trial.”].)
The
demurrer is also defective in that Defendant asks the Court to consider and
construe the provisions of the parties’ lease agreement, which is extrinsic to the
complaint, and Defendant did not assert a basis for the Court to take judicial
notice of it. The Court considers only the face of the pleading and matters
properly subject to judicial notice. (Saunders v. Superior Court
(1994) 27 Cal.App.4th 832, 838.)
V.
CONCLUSION
Accordingly,
demurrer to the complaint is OVERRULED. Defendant is ordered to answer within
five calendar days. (Cal. Rules of Court, rule 3.1320 (g)).