Judge Peter A. Hernandez, Case 22PSCV00364 2022-09-06 Tentative Ruling

This is an unlawful detainer action involving the premises located at 13519 Foster Ave., Apt. # Unit B in Baldwin Park, CA 91706 (“subject premises”).

On April 12, 2022, Plaintiff filed a complaint for Unlawful Detainer against Dennis King (“D. King”), Princess King and Does 1-10.

At the outset, the proof of service accompanying the demurrer is deficient, for the reasons set forth in footnote one. Accordingly, the following analysis is contingent upon defendant filing a corrected proof of service reflecting compliance with Code of Civil Procedure § 1013a on or before the time of the hearing.

D. King references Code of Civil Procedure § 430.10, subdivision (c) (i.e., “[t]he party against whom a complaint . . . has been filed may object, by demurrer . . ., to the pleading on any one or more of the following grounds: . . .(c) There is another action pending between the same parties on the same cause of action”) as the basis for his demurrer; however, he fails to identify this other action.

D. King further appears to argue that the complaint has not been properly verified, as required by Code of Civil Procedure § 1166; more specifically, D. King appears to claim that the complaint was improperly verified by Plaintiff’s counsel (which, incidentally, is incorrect)[2][3]. This argument would appear more appropriate in the context of a motion to strike, rather than a demurrer. Accordingly, D. King’s demurrer is overruled as procedurally improper.

The court, however, will strike out Plaintiff’s complaint on its own motion pursuant to Code of Civil Procedure § 436, on the basis that the directions for the verification set forth on page 4 plainly advise Plaintiff to “[u]se a different verification form if the verification is by an attorney or for a corporation or partnership.” (Emphasis added.) Plaintiff is a corporation. Plaintiff is given five calendar days leave to file an amended complaint, which must include any attachments specified by Code of Civil Procedure § 1166.

[1] The demurrer was filed on April 27, 2022 (mail-served on April 25, 2022) and set for hearing on June 20, 2022. The proof of service accompanying the demurrer fails to comply with Code of Civil Procedure § 1013a(1) (i.e., “[a]n affidavit setting forth the exact title of the document served and filed in the cause, showing the name and residence or business address of the person making the service, showing that he or she is a resident of or employed in the county where the mailing occurs, that he or she is over the age of 18 years and not a party to the cause, and showing the date and place of deposit in the mail, the name and address of the person served as shown on the envelope, and also showing that the envelope was sealed and deposited in the mail with the postage thereon fully prepaid” [emphasis added].) On May 2, 2022, a “Notice Re: Continuance of Hearing and Order” was filed, wherein the court continued the June 20, 2022 hearing scheduled for the demurrer to August 24, 2022; notice was given to Plaintiff’s counsel and to demurring defendant (self-represented). On May 3, 2022, Plaintiff attempted to obtain entry of default against demurring defendant, along with Princess King and Unknown Occupants, which suggests that Plaintiff’s counsel did not receive the demurrer. However, on May 13, 2022, the court sent Plaintiff’s counsel a “Notice of Rejection Default/Clerk’s Judgment,” advising therein, inter alia, of demurring defendant’s demurrer having been filed on April 27, 2022. On August 24, 2022, the hearing was continued to September 6, 2002; the court gave notice. The August 24, 2022 minute order reflects that Plaintiff’s counsel made an appearance on that date.

[2] D. King claims, on page 6, that the complaint was verified by an attorney named “Ratha Kea” at “Fullerton City, California.” This information is nowhere contained in Plaintiff’s complaint.

[3] D. King also states, without more, that the “3 day notice to quit is invalid, and no 30 or 60 notice has been given.” The foregoing sentence appears to have been included as an error.