Judge: Stephen I. Goorvitch, Case: 23STCV24740, Date: 2023-11-06 Tentative Ruling

Case Number: 23STCV24740    Hearing Date: November 6, 2023    Dept: 39

Think Big Investments, LLC v. Krash Collision, LLC, et al.
Case No. 23STCV24740

Motion to Quash

Demurrer

Case Management Order

            Plaintiff filed this unlawful detainer case, following which Defendant Robert Casillas filed a motion to quash, and Defendants John Osorio and Kelly Mendoza filed a demurrer.  The Court posts this tentative order in advance of the hearing on Monday, November 6, 2023, at 8:30 a.m.  The Court provides notice: Any defendant who does not appear, either remotely or in-person, shall waive the right to be heard and shall submit to entry of this order denying Defendants’ motion to quash and overruling Defendants’ demurrer. 

            A.        Motion to Quash

            The Court denies Defendant Robert Casillas’s motion to quash for two independent reasons.  First, because this is an unlawful detainer case, Defendant was required to notice his motion for hearing between three and seven days after filing.  (Code. Civ. Proc., § 1167.4, subd. (a).)  Defendant failed to do so, and the motion is therefore denied on procedural grounds.  In the alternative, the motion is denied on the merits.  Plaintiff filed a proof of service indicating that Defendant was served via substituted service.  Defendant admits that he received a copy of the summons and complaint.  Therefore, the motion to quash is denied.

            B.        Demurrer

            The Court overrules Defendants John Osorio and Kelly Mendoza’s demurrer.  Defendants contend that Plaintiff’s demand for surrender of the premises was improper.  An unlawful detainer complaint is subject to demurrer where the plaintiff filed the complaint before the demand for surrender expired.  (See Lamanna v. Vognar (1993) 17 Cal.App.4th Supp. 4, 6-8.)  Here, however, Defendants argue that the demand for surrender overstates the amount of rent due, and that the demand includes rent not yet due.  (See Demurrer to Complaint, p. 6.)  That is an evidentiary issue, which the Court cannot resolve on demurrer.   (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  Accordingly, the demurrer is overruled. 

            C.        Conclusion and Order

            Based upon the foregoing, the Court orders as follows:

            1.         The Court denies Defendant Robert Casillas’s motion to quash.

            2.         The Court overrules Defendants John Osorio and Kelly Mendoza’s demurrer.  

            3.         The Court orders Defendants to file answers within five (5) days. 

            4.         The Court sets the following dates:

                        Final Status Conference:

                        Trial:

            5.         The Court orders Plaintiff’s counsel to submit a joint witness list and joint exhibit list, as well as a copy of the exhibit book, on or before ________.

            6.         Plaintiff’s counsel shall provide notice and file proof of such with the Court.