Judge Michelle Williams Court, Case 22STCV03331 2022-08-25 Tentative Ruling

Judge: Michelle Williams Court, Case: 22STCV03331, Date: 2022-08-25 Tentative Ruling

Case Number: 22STCV03331 Hearing Date: August 25, 2022 Dept: 74

22STCV03331 812 PARTNERS, LP vs DIEGO GONZALEZ

Defendant Diego Gonzalez’s Demurrer to Complaint – Unlawful Detainer

TENTATIVE RULING: The demurrer is OVERRULED. Defendant shall file an answer within 15 days.

Background

On January 24, 2022, Plaintiff 812 Partners, LLC filed this unlawful detainer action against Defendant Diego Gonzalez related to a commercial property located at 6675 Hollywood Blvd. Los Angeles, CA 90028.

On June 28, 2022, the Court denied Defendant’s motion to quash service of summons.

Demurrer

On June 23, 2022, Defendant Diego Gonzalez filed the instant demurrer arguing the complaint is supported by defective notices and the allegations in the complaint are contradicted by exhibits.

Opposition

In opposition, Plaintiff contends the notices were properly served, Defendant failed to comply with the requirements of the lease, the alleged damages are sufficient, and Section 1179.10 does not apply.

Reply

In reply, Defendant argues Plaintiff failed to adequately address his original arguments.

Judicial Notice

Plaintiff requests the Court take judicial notice of its ruling on the motion to quash. This request is DENIED as it is not relevant to whether the complaint adequately states a cause of action. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 n.2 (“any matter to be judicially noticed must be relevant to a material issue.”).)

Discussion

Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A complaint need not allege evidentiary facts noting plaintiff’s proof. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)

A special demurrer to a complaint is appropriate when the grounds of the pleading are uncertain, ambiguous, or unintelligible. (Code Civ. Proc. § 430.10(f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191.) Courts typically disfavor demurrers based on uncertainty, which the court strictly construes even when the pleading is uncertain in some respects. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Code of Civil Procedure Section 1179.10 Does Not Apply

Defendant contends the 3-day notice does not comply with Code of Civil Procedure section 1179.10(a)(2). (Dem. at 11:13-12:12.) This statute, passed as part of the Covid-19 Rental Housing Recovery Act, requires specific text to be included in “a notice for a residential rental property that demands payment of COVID-19 recovery period rental debt and that is served pursuant to subdivision (e) of Section 798.56 of the Civil Code or paragraph (2) or (3) of Section 1161” before April 1, 2022.

The complaint alleges the property at issue was not a residential property, (Compl. ¶ 7(a)), and therefore this statute does not apply. Accordingly, the demurrer cannot be sustained on this basis.

The Three-Day Notice Was Sufficient to Sustain a Portion of this Action

Defendant also argues the complaint does not allege sufficient facts to demonstrate he was provided sufficient notice to cure the defects in the lease. (Dem. at 12:13-13:5.)

The lease defines a default for failure to pay rent as: “[t]he failure of Lessee to make any payment of Rent . . . required to be made by Lessee hereunder, whether to lessor or to a third party, when due, . . . where such failure continues for a period of 3 business days following written notice to lessee.” (Compl. Ex. 1 § 13.1(b). The lease defines a default for a non-monetary breach as: “[a] Default by lessee as to the terms, covenants, conditions or provisions of this lease, or of the rules adopted under Paragraph 40 hereof, other than those described in subparagraphs 13.l(a), (b), (c) or (d), above, where such Default continues for a period of 30 days after written notice; provided. however, that if the nature of lessee's Default is such that more than 30 days are reasonably required for its cure, then it shall not be deemed to be a Breach if lessee commences such cure within said 30 day period and thereafter diligently prosecutes such cure to completion.” (Id. § 13.1(e).)

Plaintiff contends, without citation to authority, that “[t]he time for cure provided in the 3-Day Notices is as set forth in CODE CIV. PROC. §1161(2) and (3) which is all that must be pled and proven to maintain an action for unlawful detainer for Commercial properties under California law. In fact, as the evidence at trial will show, Gonzalez was given repeated notices of breach pursuant to the Lease of both payment of rent and the unapproved major alternation of the Premises (removal of a second-floor mezzanine).” (Opp. at 2:17-22.) “The parties could lawfully agree to notice requirements different from and superseding those contained in section 1161 because the lease was commercial rather than residential.” (Folberg v. Clara G. R. Kinney Co. (1980) 104 Cal.App.3d 136, 140. See also Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 313 (“the agreement defines breach as the failure to perform any obligation after receipt of written notice of breach and failure to cure within 30 days after receipt of the notice.”).)

The Court agrees that the action is premature as to the non-monetary breach. (Compl. ¶ 9(a)(5).) As to the alterations of the premises, Plaintiff only provided three days notice on January 5, 2018, instead of the 30 days required by the lease. (Compl. Ex. 2.) Additionally, Plaintiff filed this action on January 24, 2022, less than 30 days from service of the notice. (See Hsieh v. Pederson (2018) 23 Cal.App.5th Supp. 1 (“A complaint which is filed prior to expiration of the full notice period can be dismissed as premature.”).)

However, the complaint is based upon a monetary breach as well. (Compl.¶ 9(a)(5).) Accordingly, the complaint may state a claim for relief even if it includes one improper request for relief. (See Saberi v. Bakhtiari (1985) 169 Cal.App.3d 509, 517 (“there is no question but that the portion of the complaint which sought possession of the premises based upon the service of a 30-day notice to quit stated a proper claim for recovery. We do not deem that the inclusion of the improper request for pre-termination rent rendered the entire complaint invalid.”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 (“[A] demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.”).)

Defendant contends the notice was required to state Defendant had three business days, rather than “three days,” to cure the payment breach. Defendant filed this action well after the expiration of three business days and this deviation is not fatal. Accordingly, Defendant substantially complied with the notice requirements. (Schulman v. Vera (1980) 108 Cal.App.3d 552, 563-564 (“The second argument is that the June 2 notice gave lessees only three days to cure the defaults, whereas under the lease they were entitled to five days in which to cure defaults in the payment of rent. . . . Lessees' argument that the notice was jurisdictionally defective because the lease provided for five days' notice of default in payment of rent is without merit. . . . Lessors did not file the instant unlawful detainer action until June 13, eleven days after the June 2 notice. Lessees made no attempt to comply with the June 2 notice at any time within that eleven-day period. Thus, lessees had the notice contemplated by the lease, and the June 2 notice complied with the statute.”).)

The demurrer cannot be sustained based upon the length of notice stated in the notice to pay or quit.

The Complaint Does Not Reveal an Improper Manner of Service for the Notices

Defendant contends the two notices were not properly served because Plaintiff “admits the Three Day Notice to Pay was not served personally on Defendant, and the failure to allege the proper method of service necessarily means Plaintiff has not alleged a required element for its sole cause of action. [Citations] The same applies to service of the Three Day Notice to Perform.” (Dem. at 13:6-14:12.). In opposition, Plaintiff contends, without authority, “[t]here is no requirement that the 3-Day Notice must be served as provided in the Lease or is invalid as a matter of law if it is not.” (Opp. at 2:12-13.) Plaintiff is not correct as to the requirements of California law. (Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc. (2010) 185 Cal.App.4th 744, 750 (“if the [commercial] lease contains service requirements for the notice to quit at variance with the requirements in the unlawful detainer statutes, the lease provisions control.”).)

The lease provides “[a]ll notices required . . . by . . . applicable law shall be in writing and may be delivered in person (by hand or by courier) or may be sent by regular . . . mail . . . and shall be deemed sufficiently given if served in a manner specified in this Paragraph 23. . . . upon Lesee’s taking possession of the Premises, the Premises shall constitute the Lessee’s address for notice.” (Compl. Ex. 1, § 23.1.) Defendant admits “[t]he Three Day Notice to Pay, . . . was left at the Premises with someone other than Defendant on January 5, and mailed the same day.” (Reply at 6:26-28.) Defendant notes paragraph 10.a.(2) alleges the mailing was to Defendant’s residence. (Reply at 7:8-11.) However, Exhibit 3 to the complaint demonstrates the notices were served by mail to Defendant at the premises and the exhibit controls. (Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 (“to the extent the factual allegations conflict with the content of the exhibits to the complaint, we rely on and accept as true the contents of the exhibits.”).) Accordingly, the complaint demonstrates proper service under the lease and the demurrer cannot be sustained on this basis.

The Complaint is Not Fatally Uncertain

Defendant also contends the complaint is uncertain as to the damages claimed as the complaint seeks $707,897 in damages, the fair rental value of the premises at $1,398.00 per day, and that the Notice to Pay indicated $167,724 was due. (Dem. at 14:13-26; Reply at 7:16-8:3.) Defendant does not cite any authority that a demurrer for uncertainty may be sustained on this basis. Moreover, the allegations are not fatally uncertain. Plaintiff seeks to recover holdover damages of $1,398.00 per day and the 3-day notice only included rental periods between October 1, 2021 and January 31, 2022. That Plaintiff did not allege “how $707,897 claimed as owed . . . is calculated” does not render the complaint uncertain. (Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599, 605 (“a demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading.”).) Additionally, Defendant’s other alleged ambiguities or uncertainties involve immaterial allegations related to the inapplicable Covid-19 relief statutes. (Mot. at 15:1-14; Reply at 8:4-18.) “Demurrer for uncertainty does not lie as to immaterial matter.” (Dumm v. Pacific Valves (1956) 146 Cal.App.2d 792, 799.) The Court does not find the complaint fatally uncertain and the demurrer shall not sustained on this basis.