Judge: Olivia Rosales, Case: 22NWCV00661, Date: 2022-08-31 Tentative Ruling

Case Number: 22NWCV00661    Hearing Date: August 31, 2022    Dept: SEC

CAM INVESTMENT 354, LLC v. EXXTRA EXPRESS, LLC

CASE NO.:  22NWCV00661

HEARING:  8/31/22 @ 1:30 PM

JUDGE:  OLIVIA ROSALES

#Add-On 2

TENTATIVE RULING

Defendant Exxtra Express LLC’s demurrer to complaint for unlawful detainer is OVERRULED.  Defendant is ORDERED to file and serve its Answer within 2 days.

Plaintiff to give NOTICE.

Defendant Exxtra Express LLC (“Exxtra”) demurs to the Complaint on the grounds that it fails to state facts sufficient to constitute a cause of action and is uncertain.

Plaintiff Cam Investment 354, LLC (“Cam”)’s Complaint, filed August 2, 2022, asserts a single cause of action for Unlawful Detainer.

Defendant contends that the Complaint is defective because the Three-Day Notice to Pay Rent or Quit (attached to the Complaint as Ex. 2) is internally inconsistent as to the time period for which rent is due. The first page states that rent is due for the months of March, April, May, June, and July 2022.  However, the table labeled as Exhibit A to the Three-Day Notice states that rent is unpaid for the months of July, August and September 2022.  

The court finds no internal inconsistency.  The Notice explicitly states that Defendant failed to pay “Rent and Other Charges” for March, April, May, June, and July 2022.  The Lease at ¶ 13.4 provides that Late Charges become due and payable quarterly in advance in the event that a late charge is payable for three consecutive base rents.  late charges have been payable for (more than) 3 consecutive installments of Base Rent: March 2022 ($1,349.01), April 2022 ($5,227.40), May 2022 ($5,227.40), June 2022 ($5,227.40), and July 2022 ($16,152.60). Therefore, the July 2022 past due rent amount accurately reflects all Rents and Other Charges due and payable for Quarter Three (July, August, September 2022), in accordance with the Lease.

Alternatively, Defendant contends that the Complaint is inconsistent with the Three-Day Notice in that the Complaint alleges that Plaintiff seeks “past-due” rent of $281,119.95 (Complaint, ¶ 19c) for the month of September 2022, which was not “past-due” at the time of service of the Complaint.  However, the first page of the Three-Day Notice explicitly states that it was issued for past-due rent and other charges for March, April, May, June, and July 2022.  The Table reflects Quarter Three rent in advance based on Defendant’s numerous defaults.  Defendant had fallen behind for three consecutive installments of Base Rent, and pursuant to the Lease, Defendant is required to pay Rent quarterly in advance.

The court finds no inconsistency or uncertainty.  Demurrer is OVERRULED.  Defendant is ORDERED to file and serve its Answer within 2 days.