Judge: Ralph C. Hofer, Case: 24NNCV03936, Date: 2024-10-25 Tentative Ruling
Case Number: 24NNCV03936 Hearing Date: October 25, 2024 Dept: D
TENTATIVE RULING
Calendar: 5
Date: 10/25/2024
Case No: 24 NNCV03936 Trial Date: None Set
Case Name: Dai, et al. v. Vasquez, et al.
DEMURRER
Moving Party: Defendants Luiz Vasquez aka Luis Vasquez and Carla Jo Bailiey
Responding Party: Plaintiffs Xia Dai and Qi Lu
RELIEF REQUESTED:
Sustain demurrer to complaint
CAUSES OF ACTION: from (Form) Complaint
1) Unlawful Detainer
SUMMARY OF FACTS:
Plaintiffs Xia Dai and Qi Xu allege that they agreed to rent premises to defendants Luiz Vasquez aka Luis Vasquez and Carla Jo Bailey pursuant to a written lease agreement. Plaintiffs allege that defendants were served with a 3-day notice to pay rent or quit, and failed to comply with the requirements of the notice.
ANALYSIS:
Defendants argue that the three-day notice alleged in the complaint overstates the amount of rent due, and so is fatally defective and will not support an unlawful detainer action. Defendants also demur on the ground that rent has been accepted by plaintiffs, as well as paid attorney fees.
Plaintiffs in opposition argue that defendants improperly challenge the truthfulness of the allegations in the pleading, which is not the function of a demurrer.
Under CCP § 430.30(a), an objection to a pleading may be taken by a demurrer "[w]hen any ground for objection to a complaint...appears on the face thereof, or from any matter of which the court is required to or may take judicial notice…"
There is nothing from the face of the pleading which would suggest that the rent due is not properly stated or that the landlord has accepted rent and attorney’s fees. Plaintiffs have not filed a request for judicial notice, or pointed to any judicially noticeable matter.
With respect to the amount of rent, CCP Section 1166 specifies the requirements of an unlawful detainer complaint.
“(a) The complaint shall:
(1) Be verified and include the typed or printed name of the person verifying the complaint.
(2) Set forth the facts on which the plaintiff seeks to recover.
(3) Describe the premises with reasonable certainty.
(4) If the action is based on paragraph (2) of Section 1161, state the amount of rent in default.
(5) State 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.”
(Emphasis added).
The complaint includes all the required information, and specifically alleges at paragraph 12 that the amount of rent due was $78,000.00. [Para. 12]. This sum matches the amount stated in the three-day notice attached to the complaint, and the calculations in that notice. [Three-Day Notice, para. 1]. Any problem with the correctness of this figure is not apparent from the complaint. The demurrer therefore is overruled.
The opposition requests that plaintiffs be allowed to recover fees and costs incurred in opposing the demurrer. There is no legal authority cited under which such relief may be appropriately granted by the court. The request is denied.
RULING:
Demurrer to Unlawful Detainer Action is OVERRULED.
Request in opposition for fees and costs is DENIED.
Five days to answer.
DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE
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