Judge: Serena R. Murillo, Case: 23STCV13574, Date: 2023-09-08 Tentative Ruling
Case Number: 23STCV13574 Hearing Date: October 17, 2023 Dept: 31
TENTATIVE
Defendant’s demurrer is OVERRULED.
Request for Judicial Notice
Defendants
requests the Court to take judicial notice of (1) the verified complaint for
unlawful detainer in La Park La Brea A, LLC v. Bhasin (22STCV28517); (2)
judgment for Monika Bhashin in La Park La Brea A, LLC v. Bhasin
(22STCV28517); and (3) the verified complaint for unlawful detainer in this
case.
The
request is GRANTED pursuant to Evidence Code section 452(d).
Legal Standard
A demurrer for sufficiency tests
whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
When considering demurrers, courts read the allegations liberally and in
context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216,
1228.) The court “treat[s] the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions or conclusions of fact or law
….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) In a demurrer
proceeding, the defects must be apparent on the face of the pleading or via
proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994).)
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. (Code Civ. Proc., §§ 430.30, 430.70.) The
only issue involved in a demurrer hearing is whether the complaint, as it
stands, unconnected with extraneous matters, states a cause of action. (Hahn,
supra, 147 Cal.App.4th at 747.)
Discussion
Meet and Confer
Before
filing a demurrer, the demurring party shall meet and confer in person or by
telephone with the party who filed the pleading that is subject to demurrer for
the purpose of determining whether an agreement can be reached that would resolve
the objections to be raised in the demurrer. (Code Civ. Proc. §
430.41(a).)
While
Defendant has not filed the required meet and confer declaration, this is not
grounds to overrule the demurrer. The Court will thus turn to the merits but
admonishes Defendant that she needs to file this declaration in the future.
Merits
Defendant
demurs to the complaint, arguing it fails to state sufficient facts to
constitute a cause of action. Defendant argues that to plead a cause of action
for unlawful detainer for nonpayment of rent, a complaint must allege facts
demonstrating that under a lease/rental agreement, a tenant was required
to pay the amount demanded in the notice to pay rent or quit. (CCP § 1161(2).) Defendant argues, by electing to declare a
forfeiture, the landlord cuts off its ability to collect “rent” under the
forfeited lease agreement.
CCP § 1161(2)
provides that a tenant is guilty of unlawful detainer:
When he or she continues in possession, in
person or by subtenant, without the permission of his or her landlord, or the
successor in estate of his or her landlord, if applicable, after default in the
payment of rent, pursuant to the lease or agreement under which the property is
held, and three days' notice, excluding Saturdays and Sundays and other
judicial holidays, in writing, requiring its payment, stating the amount which
is due, the name, telephone number, and address of the person to whom the rent
payment shall be made, and, if payment may be made personally, the usual days
and hours that person will be available to receive the payment (provided that,
if the address does not allow for personal delivery, then it shall be
conclusively presumed that upon the mailing of any rent or notice to the owner
by the tenant to the name and address provided, the notice or rent is deemed
received by the owner on the date posted, if the tenant can show proof of
mailing to the name and address provided by the owner), or the number of an
account in a financial institution into which the rental payment may be made,
and the name and street address of the institution (provided that the
institution is located within five miles of the rental property), or if an
electronic funds transfer procedure has been previously established, that
payment may be made pursuant to that procedure, or possession of the property,
shall have been served upon him or her and if there is a subtenant in actual
occupation of the premises, also upon the subtenant.
The notice may be
served at any time within one year after the rent becomes due…
Consequently, the
basic elements of unlawful detainer for nonpayment of rent contained in CCP
1161(2) are “(1) the tenant is in possession of the premises; (2) that
possession is without permission; (3) the tenant is in default for nonpayment
of rent; (4) the tenant has been properly served with a written three-day
notice; and (5) the default continues after the three-day notice period has
elapsed.” (Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10,
16.)
A
tenancy is terminable by the landlord’s giving proper three-day notice in the
event the tenant breaches a covenant or condition of the rental
agreement. (CCP § 1161(2)-(4).) “Whether a particular breach will
give plaintiff landlord the right to declare a forfeiture is based on whether
the breach is material . . . not every breach justifies treating the contract
as terminated . . . California courts allow termination only if the breach can
be classified as ‘material,’ ‘substantial,’ or ‘total.’” (NIVO 1 LLC
v. Antunez (2013) 217 Cal.App.4th Supp. 1, 5.)
In
addition, equitable principles apply where a forfeiture is sought in an action
in an unlawful detainer, and thus, requires ‘a full examination of all of the
equities involved to the end that exact justice be done.’” (Strom v.
Union Oil Co. (1948) 88 Cal.App.2d 78, 83.)
Forfeitures
are disfavored by courts, and contractual provisions “ ‘must be strictly
interpreted against the party for whose benefit it is created.’ ” [Citation
omitted.]” (Bawa, 33 Cal.App.5th Supp. 1, 244 Cal. Rptr. 3d at
860.)
“Forfeitures
are odious in law, and are enforced only where there is the clearest evidence
that that was what was meant by the stipulations of the parties. There must be
no cast of management or trickery to entrap the party into a forfeiture.
(citation)” (Strom v. Union Oil Co. (1948) 88 Cal.App.2d 78, 82.)
Code of Civil Procedure §1174 provides that the judgment
shall declare the forfeiture of the lease or agreement only if the notice
states the election of the landlord to declare the forfeiture.
Here, Defendant argues that
Plaintiff elected to forfeit the lease agreement in August 2022, thus Plaintiff
fails to state a cause of action for unlawful detainer because it fails to
allege facts demonstrating that after the August 2022 forfeiture, the parties
reinstated the lease agreement or agreed to waive the prior forfeiture.
Therefore, she argues, the rental periods in the operative notice for August
2022 and beyond were not demands for rent owed pursuant to a lease or agreement
under which the property is held.
It appears that Defendant is
premising her conclusion that there was a forfeiture of the lease agreement on
the notice to quit where Plaintiff declared a forfeiture and on the complaint
in the prior action, where Plaintiff prayed for forfeiture of the complaint.
(RJN, Exh. 1.) However, judgment was not entered in Plaintiff’s favor in that
action. (RJN, Exh. 2.) As such, there is no judgment or order declaring the
forfeiture of the lease agreement. Defendant has cited to no authority for her
implication that a forfeiture of a lease agreement is self-executing.
Conclusion
Based on the foregoing,
Defendant’s demurrer is OVERRULED.
Moving party is ordered to give
notice.