Judge: Robert S. Draper, Case: 22STCV21919, Date: 2022-08-18 Tentative Ruling

Case Number: 22STCV21919    Hearing Date: August 18, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Unnamed Defendant Rebecca Nunez’s Demurrer to the Complaint is OVERRULED.

FACTUAL BACKGROUND   

This is an action for unlawful detainer of a commercial property. The Complaint alleges as follows. Defendant Abraham Mercado dba Las Vegas Stero Shop (“Mercado”) agreed to rent a commercial property at 532 Gallardo St., Los Angeles, CA 90033 (the “Subject Property”) from Plaintiff Bravo Wholesale Inc. (“Plaintiff”). (Compl. at p. 2.) Mercado has not paid rent since February 1, 2022. (Compl. Ex. 2.) Plaintiff served Mercado with the 3-Day Notice to Pay Rent or Quit on June 20, 2022. (Compl. at p. 3; Compl. Ex. 3.)

PROCEDURAL HISTORY 

On July 7, 2022, Plaintiff filed the Complaint against Mercado and Does 1 to X asserting a single cause of action for Unlawful Detainer.

On July 14, 2022, the Court entered Plaintiff’s Request for Default as to Mercado.

On July 28, 2022, unnamed Defendant Rebecca Nunez (“Nunez”) filed a Prejudgment Claim of Right to Possession stating that she was an occupant of the Subject Property[1].  

Also on July 28, 2022, Nunez filed a Demurrer to the Complaint.

On August 5, 2022, Plaintiff filed an Opposition.

On August 12, 2022, Nunez filed a Notice of Submission Without Appearance.

No Reply has been filed.

DISCUSSION 

                         I.          DEMURRER

Nunez demurs to the Complaint for Unlawful Detainer.

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) As is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“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. [Citation.]”)  

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) 

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.) 

Here, Nunez contends that Plaintiff failed to serve her with a Three-Day Notice to Pay Rent or Quit (the “Notice”). (Demurrer at p. 3.) However, as Plaintiff notes in its Opposition, a copy of the Notice is attached to the Complaint (Compl. Ex. 2) as well as a copy of the Proof of Service. (Compl. Ex. 3.)

While Nunez may dispute the validity of the notice or the effectiveness of the service, this argument is not proper on Demurrer, where the Court accepts all allegations contained on the face of the Complaint as true. Here, the Complaint alleges that Plaintiff served the Notice, and attaches a copy of the Notice to the Complaint. As such, the Court accepts the allegation as true.

Accordingly, Nunez’s Demurrer to the Complaint is OVERRULED.

DATED: August 18, 2022 

____________________________

Hon. Robert S. Draper 

Judge of the Superior Court