Judge: Ronald F. Frank, Case: 22IWUD01845, Date: 2022-10-25 Tentative Ruling

Case Number: 22IWUD01845    Hearing Date: October 25, 2022    Dept: 8

Tentative Ruling

HEARING DATE:    Tuesday, October 25, 2022                             JUDGE /DEPT:        Frank/8 

CASE NAME:           David Holstein vs Danielle Reed, Ivern Haywood, et al..

CASE NUMBER:     22IWUD01845                                              COMPL. FILED:     09/26/22            

PROCEEDINGS:     MOTION TO SET ASIDE JUDGMENT

MOVING PARTY:   Defendants Danielle Reed and Ivern Haywood

RESP. PARTY:         Plaintiff David Holstein  

MOTION TO STRIKE COMPLAINT IN ITS ENTIRETY 

TENTATIVE RULING:   Deny motion and order Defendants to Answer only within 5 days

OPPOSITION:          Yes,  filed October 11, 2022              

REPLY:                     None filed as of October 24, 2022                 

I.          INTRODUCTION 

This action arises out of a residential eviction or unlawful detainer (UD) case based on non-payment of rent. On September 26, 2022, Plaintiff filed a Complaint against Defendants.  On October 7, 2022, Defendants filed this motion to strike Plaintiff’s Complaint in its entirety, indicating a hearing date of November 9, 2022. On October 11, 2022, Plaintiff filed an ex parte application to advance the hearing on the motion to strike from November 9 to the earliest date available on the Court’s calendar.  The Court granted that ex parte application and re-scheduled the hearing on the motion to strike for October 25, 2022. 

II.        BACKGROUND  

According to Plaintiff’s opposition to Defendants’ motion to strike, Defendants have a long history of not paying rent. Per Plaintiff, Defendants applied for, and were granted, rent relief from the “Housing Is Key” program for rent accruing both during the “Recovery Period” between October 1, 2021 and March 31, 2022, as well as a couple of months prior to October 1, 2021. The Complaint alleges that Defendant failed to pay rent for each month between October 1, 2021 and March 31, 2022. One of the two 3-day notices attached tot eh Complaint pertains to that time period.  A second notice 3-day notice attached to the Complaint is for September 2022 rent. The Opposition alleges numerous other facts not contained in the four corners of the Complaint and its attachments, so they will not be repeated here. 

The subject motion to strike is the initial responsive pleading filed by Defendants.  It places a number of factual matters in issue, some of which are alleged in the Complaint or tis two 3-day notices attached thereto, some of which are outside the four corners of the Complaint and its attachments. 

III.       ANALYSIS 

            As a preliminary matter, Defendant’s motion to strike raises numerous evidentiary matters outside the four corners of the Complaint, perhaps inducing Defendant to do the same in its Opposition papers.   For example, the Motion claims that the 3-day notice was not served by a registered process server or sheriff or marshal (Motion at p. 4, lines 5-6), but there is no such requirement for serving a notice to pay or quit.  The Complaint at paragraph 10.a.3 alleges the notice to pay or quit was served by posting an mailing, which the law allows in Code of Civil Procedure §1162(a)(3).   Some of the language in the Motion to Strike sounds more akin to a motion to quash service of process, since the Motion references a claimed failure to acquire jurisdiction over the Defendant and improper “service of process.”  Perhaps Defendant is confusing service of the pre-litigation notice, which is not “service of process,” with service of the Summons and Complaint, which is “service of process.”

While a demurrer or motion to strike might correctly raise the issue of a defective 3-day notice where the defect appears on the face of the notice (which is what the heading to Section IV of the Motion states), the body of the Motion states otherwise.  It argues: “there is doubt on whether plaintiff complied to [sic] service of process . . . as to services [sic] of the three-day notice to quit.”  (Motion at p. 6, line 22.)  Such an argument is a potential defense to a UD, but requires an evidentiary hearing such as a trial or motion for summary judgment for the Court to rule on such an argument and resolve the “doubt.”  It is not the proper subject of a motion to strike.   Section III of the Motion has a heading that asserts that the Complaint and its attachments do not allege or show compliance with “service of process,” but the body of that section of the Motion merely states that the three-day notice must be attached to the Complaint (which it is) and then in conclusory fashion argues that the notice is “defective” without stating why or without citation to any specific provision of the law that the notice failed to conform with.  Section II of the Motion argues that “plaintiff is in violation of statutory requirements,” and that “defendant has proof that Real party in Interest [sic] failed such compliance,” but the Motion fails to state in what way there is non-compliance or what that proof is. 

Similarly, Section I of the Motion states that Plaintiff failed to serve a tenant notification of inability to pay rent due to COVID-19, but the Motion fails to provide any reference to the provision of law that would make the failure to serve such a notice during the “recovery period” of October 1, 2021 through March 30, 2022.  The four corners of the Complaint do not allege that Plaintiff did or did not provide a blank form declaration of financial distress, which would have been required if the Complaint were based on the failure to pay rent prior to October 1, 2021, but that period is not what the Complaint or its attached notice to pay or quit allege. 

            Defendants also assert that Plaintiff has accepted rent from April 1, 2022 through August 1, 2022. Defendants assert, without citing any authority, that if plaintiff is demanding past due rent the dates are not correct because plaintiff must apply the rent to the past months.  If a landlord accepts a rent payment after expiration of the three-day notice period, that may raise an affirmative defense to a UD case.  But that again is an evidentiary hearing matter, not something the Court can resolve on a motion to strike. 

            Plaintiff acknowledges the two rent notices. In opposition, Plaintiff notes that the first notice is for rent unpaid between October 1, 2021 and March 31, 2022. Notices for rent due during that period are not subject to the requirements of Code of Civil Procedure § 1179.03 such as the requirement to provide a blank declaration of Covid-related financial distress. Instead, notices for rent due during that period are subject to the requirements of Code of Civil Procedure § 1179.10. There is no requirement under § 1179.10 for service of a blank declaration of Covid related financial distress, which is one of the arguments upon which the Defendants apparently move to strike the Complaint.

            The motion to strike raises a host of issues, but either fails to provide a citation to statutory authority or a factual allegation in the Complaint or its attached 3-day notices to bolster its arguments.  Further, many of the Motion’s arguments pertain to factual matters the Court cannot address or resolve at the motion to strike stage, but such issues may be raised at a late stage of the case where each side can present and challenge each other’s evidence. 

VII.     CONCLUSION 

The Court DENIES Defendants’ Motion to Strike the entire Complaint, and Defendants are ordered to file an Answer only (i.e., not another pleading motion) to the Complaint within five days.

Plaintiff to give notice.