Judge: Ronald F. Frank, Case: 24IWUD01885, Date: 2025-02-04 Tentative Ruling
Case Number: 24IWUD01885 Hearing Date: February 4, 2025 Dept: 8
Tentative Ruling
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HEARING DATE: February 4, 2025
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CASE NUMBER: 24IWUD01885
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CASE NAME: George
N. Burkhardt, Jr., as successor Trustee of the Burkhardt Living Trust, dated
June 11, 2008 v. Anthony Claverie, et al.
MOVING PARTY: Plaintiff,
George N. Burkhardt, Jr., as successor
Trustee of the Burkhardt Living Trust, dated June 11, 2008
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RESPONDING PARTY: Defendant, Anthony Claverie, Brooke Claverie, and Al
Claverie, in pro per.
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TRIAL DATE: Not Set.
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MOTION:¿ (1) Defendants’ Demurrer
(2) Plaintiffs’ Motion to Deem Requests for Admission Admitted
(3) Request for Monetary
Sanctions.
(4) Trial Setting Conference
Tentative Rulings: (1) OVERRULED. Defendants shall file an Answer within 5 days.
(2) Denied, but Defendants are ordered to admit, deny or state inability
to admit or deny in verified responses within 5 days.
(3) $980.71 in monetary sanctions
are GRANTED, payable by Defendant Anthony Claverie to Plaintiff’s counsel on or
before February 21, 2025.
(4) TSC:
Court will set the case for trial.
Because the Defendant has appeared, pursuant to CCP § 1170.5 the Court
will set the case for trial within 20 days of a request to set the case for
trial.
I. BACKGROUND¿
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A. Factual¿
On September 17, 2024, Plaintiff, George
N. Burkhardt, Jr., as successor Trustee of the Burkhardt Living Trust, dated
June 11, 2008 v. Anthony Claverie, et al. filed a complaint for unlawful
detainer against Defendants, Anthony Claverie, Brooke Claverie, and Al Claverie
(collectively, “Defendants”), and DOES 1 through 10. Defendants filed motions to quash on October
1, 2024, which were scheduled for November 6 but advanced by ex parte
application and heard on October 9, 2024 as discussed more fully below.
On November 21, 2024,
Defendants filed a demurrer to Plaintiff’s complaint. The demurrer is made on
the grounds that Defendants argue the complaint fails to state a cause of
action on the grounds that: (1) substituted service was not authorized; (2)
Plaintiff failed to allege compliance with Inglewood Municipal Code requiring
just cause to evict in Paragraph 16 of the complaint; and (3) Plaintiff failed
to allege compliance with the Tenant Protection Act.
On October 28, 2024,
Plaintiff served Defendant Anthony Claverie its Requests for Admission, Set One.
Plaintiff submits that his RFA set contained a total of seventeen (17)
admission requests, and that Defendant’s responses were due on or before
November 7, 2024. However, as of the date of Plaintiff’s filing of the December
5, 2024 Motion to Deem Requests for Admission as admitted, Plaintiff states that
Claverie failed to respond.
B. Procedural
On November 21, 2024, Defendants
filed their demurrer. On November 25, 2024, Plaintiff filed a notice of ex
parte application for an order denying or advancing the hearing date or
shortening time for the hearing on Defendants’ demurrer. On November 26, 2024,
Plaintiff’s ex parte application was granted, and Defendants’ demurrer was
advanced and overruled by Judge Pro Tem Mark Park. However, the demurring
Defendants had stated in the demurrer that they would not stipulate to a
temporary judge, which was not discovered by Ms. Park before she issued her
ruling. When Defendants received the ruling, they filed a writ with the
Appellate Division, which issued a Palma notice on January 8, 2025
because of the non-stipulation, noting the temporary judge acted without
authority. On January 9, Ms. Park reviewed the Palma notice and vacated
her earlier ruling on the Demurrer. The
hearing on the Demurrer was then re-scheduled for February 4, 2025 before Judge
Frank, given an earlier peremptory challenge to Judge Hall who regularly sits
in the UD Department in Inglewood. As
such, this Court provides the tentative rulings below.
Further, on December 5, 2024, Plaintiff filed a Motion to Deem
the Truth of the Matters Specified in that Requests for Admission Admitted. On
December 31, 2024, Defendant, Anthony Claverie filed an opposition brief. To
date, no reply brief has been filed.
¿II.
ANALYSIS
A.
Demurrer
i.
Legal
Standard
A demurrer can be used
only to challenge defects that appear on the face of the pleading under attack
or from matters outside the pleading that are judicially noticeable. (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint
need only allege facts sufficient to state a cause of action; each evidentiary
fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart
Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of
testing the sufficiency of the cause of action, the demurrer admits the truth
of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist.
(1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions,
deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co.
(1967) 67 Cal.2d 695, 713.)¿¿¿¿
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A pleading is uncertain
if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A
demurrer for uncertainty may lie if the failure to label the parties and claims
renders the complaint so confusing defendant cannot tell what he or she is
supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986)
185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is
strictly construed, even where a complaint is in some respects uncertain,
because ambiguities can be clarified under modern discovery procedures.” (Khoury
v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)
ii.
Discussion
Demurring Defendants argue that the complaint fails to state a cause of
action on the grounds that: (a)
substituted service was not authorized because of a lack of diligent efforts to
serve in person; (b) Plaintiff failed to allege compliance with Inglewood
Municipal Code requiring just cause to evict in Paragraph 16 of the complaint;
and (c) Plaintiff failed to allege compliance with the Tenant Protection Act. The
necessary elements for an unlawful detainer cause of action are: (1) that the
tenant is in possession of the premises; (2) that the tenant’s continued
possession is without the landlord’s permission; (3) that the tenant is in
default for nonpayment of rent; (4) that the tenant was properly served with
the 3-day notice; and (5) that the default continues after the notice period
has elapsed. (Code Civ. Proc., §1161 (2); Borsuk
v. Appellate Division of Superior Court (2015) 242 Cal.App.4th 607, 613.)
Here, the complaint alleges that Plaintiff is the owner of the premises
at issue (Complaint, p. 1); that Defendants are in possession of the premises
(Complaint, p. 1, ¶ 3(a)); that the Defendants are in default for nonpayment of
rent (Complaint, p. 2, ¶ 6); that the tenant was properly served with a 60-day
notice (Complaint, p. 2, ¶ 9); and that the default continues. (Complaint, p.
4, ¶ 19.) As such, Plaintiff has alleged the requisite elements for an unlawful
detainer cause of action.
Demurring Defendants argue that Plaintiff fails to state a cause of
action for unlawful detainer because under Code of Civil Procedure section
1162, substituted service was not authorized, citing to The Bank of New York
Mellon v. Preciado (2013) 224 Cal.App.4th Supp. 1 (“Preciado”).
However, this is not what Preciado or Section 1162 state. Looking
plainly at the statute, Code of Civil Procedure section 1162, subdivision
(a)(3) states “[i]f…a person of suitable age or discretion there cannot be
found, then by affixing a copy in a conspicuous place on the property, and also
delivering a copy to a person there residing, if such person can be found; and
also sending a copy through the mail addressed to the tenant at the place where
the property is situated.” (Code Civ. Proc., § 1162, subd. (a)(3).) Here, the
complaint states that the notice was served by positing a copy on the premises
on June 21, 2024 and by mailing a copy to Defendant at the premises on June 21,
2024, because no person of suitable age or discretion could be found there at
the time of attempted service. (Complaint, p. 3, ¶ 10(a)(3).) As such, the
demurrer will not be sustained on these grounds. Service by posting and mailing is thus legally
permissible on the minimal allegation that a person of suitable age and
discretion could not be found at the premises at the time of attempted
service. No further allegation of due
diligence is required.
Next, Demurring Defendants assert that the complaint fails to allege
sufficient facts to state a cause of action for unlawful detainer on the
grounds that Plaintiff failed to allege compliance with Inglewood Municipal
Code requiring just cause to evict in Paragraph 16 of the complaint. Compliance
with a rent control ordinance is a potential defense, not an affirmative
allegation that Plaintiff is required to make.
Plaintiff’s complaint includes the allegation that the property was not
subject to the Tenant Protection Act of 2019 (Complaint, p. 2, ¶ 7). Whether that allegation is true or not may
depend on proof at trial, but a UD Complaint need not allege facts of all
potential affirmative defenses. As such,
the demurrer will not be sustained on these grounds.
Lastly, Demurring Defendants assert the complaint fails to allege
sufficient facts to state a cause of action for unlawful detainer on the
grounds that Plaintiff failed to allege compliance with the Tenant Protection
Act. However, as explained above, the complaint alleges the property was not
subject to the Tenant Protection Act of 2019. Further, as noted in Plaintiff’s
opposition, an allegation requiring a 3-day notice to quit in compliance with
Civil Code section 1946.2 applies when there is a curable lease violation.
Plaintiff states that this is not the case here as a 60-day notice to quit was
served, not one to pay rent or quit.
The Court OVERRULES the entirety of the demurrer based on the above. Defendants shall file an Answer within 5 days.
B.
Motion
to Deem Requests for Admission as Admitted
i.
Legal Standard
Pursuant to Code of Civil
Procedure section 2033.280, “[i]f a party to whom requests for admission are
directed fails to serve a timely response,” the court shall make the order
deeming the truth of the matters admitted unless the responding party serves
before the hearing a proposed response to the requests for admission that is in
substantial compliance with Code Civil Procedure § 2033.220. Code of Civil
Procedure § 2033.220 requires that each answer either admits, denies or
specifies that the responding party lacks sufficient information or knowledge.
As stated in Demyer v. Costa Mesa Mobile Home Estates, the moving party
is not required to meet and confer before bringing this action. (Demyer v.
Costa Mesa Mobile Home Estates, 36 Cal.App.4th 393, 395.)¿¿ Section 2033.290 permits a party to make a
motion for an order compelling a further response to RFAs.
Code of Civil Procedure
section 2023.030, subdivision (a) provides, in pertinent part, that the court
may impose a monetary sanction on a party engaging in the misuse of the
discovery process to pay the reasonable expenses, including attorney’s fees,
incurred by anyone as a result of that conduct. A misuse of the discovery
process includes failing to respond or submit to an authorized method of
discovery. (Code Civ. Proc., § 2023.010, subd. (d).)¿¿
ii.
Discussion
Here,
Defendant Anthony Claverie argues that Plaintiff should have been prevented
from serving full discovery with a motion to quash pending.
On October 1, 2024, Defendant
Anthony Claverie filed a Motion to Quash Service of Summons, which was denied
on October 9, 2024. Judge Hall advanced the hearing on Defendants’ motion to
quash and denied it. Unfortunately, the ruling
mistakenly required defendants to file an answer only. “[F]ollowing the denial of
a motion to quash, a court cannot order a defendant to file only an answer.
Such an order is improper because the statutes do not limit the defendant's
responsive pleading to an answer, and a demurrer is an acceptable responsive pleading. (Butenschoen v. Flaker (2017) 16
Cal.App.5th Supp. 10, 15.) On October 15, 2024, Defendant Anthony Claverie filed a
Notice of filing of a Petition for Writ of Mandate. Pursuant to Code of Civil
Procedure §418.10(c), “when a trial court denies a motion to quash
service of summons, a defendant can file a petition for writ of mandate in the
reviewing court, which effectively stays the action and extends the defendant's
time to respond until after the reviewing court rules on the petition, thereby
granting the defendant additional time to remain in their residence. (Stancil v. Superior Court (2021) 11
Cal.5th 381, 393.)
The
Appellate Division acted promptly on the Claverie writ petition, issuing the first
of two Palma notices in this case suggesting that the October 9 ruling
had gone too far. Thus, on November 14,
2024, Judge Hall issued a minute order stating: “The restriction of an Answer
responsive pleading only is vacated; Defendants are ordered to file and serve a
responsive pleading within five days of this order.” The Appellate Division did not alter the
denial of the motion to quash. While the
matter was pending on writ review, Plaintiff served discovery including the request
for admission that are the subject of this motion.
Defendant Anthony Claverie contends Plaintiff’s
merits discovery was in violation of the principle that while a motion to quash
is pending, only jurisdictional discovery may be sought. Claverie cites to two
cases for his reasoning –1880 Corp. v. Superior Court of City
and County of San Francisco (1962) 57 Cal.2d 840, 843 and Mihlon v.
Superior Court, (1985) 169 Cal.App.3d at p. 710. However, both of these
cases discuss a plaintiff’s general right to propound discovery with regard to
a jurisdictional issue before the trial court rules on a motion to quash
service of summons for lack of personal jurisdiction.
Here, the motion to quash was denied
by Judge Hall on October 9, 2024. Plaintiff did not propound the Requests for
Admission until October 28, 2024, but the writ challenging the ruling on the motion
to quash was still pending. Under the Stancil
case quoted above, Defendants had a reasonable argument that merits discovery should
have been stayed until the Appellate Division ruled on the writ petition. However,
Defendants did not obtain a stay from either the trial court nor appellate court
while the writ was pending. Further, the
writ seeking correction of the ruling on the motion to quash was decided on or
about November 14, 2024, which per Code of Civil Procedure §418.10(c) extended Defendant’s
time to file a responsive pleading until 10 days after service of notice of the
final decision in the writ of mandate proceeding. Defendants do not explain why they did not
respond to the RFAs at the same time as their demurrer, which was filed on
November 21, 2024. If Defendants attend
oral argument, the Court will invite an explanation as to why now two months
later, Defendants still have not responded to the RFAs.
The Court elects to treat the motion
to deem RFAs admitted as a Motion for further responses to the RFAs, with objections
waived. Because Defendant does not choose
to attend oral argument, the Court expects to have no answer from Defendants at
the hearing as to why he has failed to serve any response to the RFAs at issue
despite the prolonged period of time the RFAs have been pending. The Court will require Defendants to admit,
deny, or verify inability to admit or deny within 5 days of service of notice
of the ruling on the Motion to deem the RFAs admitted. The Court finds that Defendants have waived their
right to object to the RFAs by failing for over two months to respond to the
RFAs. The Court will not impose the
drastic measure of deeming the RFAs admitted, but will require Defendants to
serve their verified responses to the RFAs within the expedited 5-day window
for responding to discovery in a UD case, commencing with the date Plaintiffs
serve notice of this ruling.
C. Sanctions
Code of Civil
Procedure § 2023.030(a) provides, in pertinent part, that the court may impose
a monetary sanction on a party engaging in the misuse of the discovery process
to pay the reasonable expenses, including attorney’s fees, incurred by anyone
because of that conduct. Misuse of discovery includes “failing to respond
or submit to an authorized method of discovery.” (Code Civ. Proc.
§¿2023.010(d)).
Plaintiff states that he has incurred attorney’s fees and
costs in the amount of $980.71 as is evidenced in the declaration of Eva B.
Kobi. Given the Court’s determination to allow Defendants to admit or deny
rather than suffer the deeming of the RFAs to be admitted, the Court grants the
monetary sanctions requested. The
$980.71 in monetary sanctions are payable by Defendant Anthony Claverie to
Plaintiff’s counsel on or before February 21, 2025.
III. CONCLUSION
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For the foregoing reasons,
Demurring Defendants’ Demurrer is OVERRULED. An Answer only must be filed within 5 days of service
of the notice of ruling.
Plaintiff’s Motion to Deem Requests for
Admission is denied but the lesser included remedy of requiring admissions,
denials, or statements of inability to admit or deny will be the Court’s equitable
ruling. Plaintiff’s request for attorney’s
fees is GRANTED. The $980.71 in sanctions are payable
on or before February 21, 2025
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Plaintiff is ordered to give
notice.