Judge: Stephen P. Pfahler, Case: 22CHCV00289, Date: 2023-01-19 Tentative Ruling

Case Number: 22CHCV00289    Hearing Date: January 19, 2023    Dept: F49

Dept. F-49

Date: 1-19-23 (specially set via 1-5-23 ex parte order)

Case # 22CHCV00289

Trial Date: 2-6-23 (bench trial)

DEMURRER & MOTION TO STRIKE

MOVING PARTY: Defendant, Charles Johnson

RESPONDING PARTY: Plaintiff, Dunn Investment Properties, Inc.

RELIEF REQUESTED

Demurrer to the Second Amended Verified Complaint for Unlawful Detainer

Motion to Strike the Second Amended Complaint

SUMMARY OF ACTION

On May 10, 2022, Plaintiff Dunn Investment Properties, Inc. filed a complaint for Unlawful Detainer against Charles and Sheila Johnson. Plaintiff alleges rent increased from $7,411 to $20,000/month as of January 1, 2022. Defendant failed to make the lease payments due in March and April 2022, with an outstanding balance of $39,112 as of the complaint filing date.

On June 30, 2022, the court sustained the demurrer to the complaint. Plaintiff filed a first amended complaint for unlawful detainer on July 6, 2022. On August 2, 2022, the court denied the motion to bifurcate the action. On September 16, 2022, the court sustained the demurrer to the first amended complaint. On September 26, 2022, Plaintiff filed a verified second amended complaint.

On November 30, 2022, the court denied the motion to quash.

RULING

Demurrer: Off-Calendar

Defendant Charles Johnson challenges the second amended complaint on grounds of a lack of a default on the rent at the time of the three day notice to pay rent or quit.

The demurrer is untimely. The court summarizes the standard following an unsuccessful motion to quash: 

"[A] defendant may properly use a motion to quash to challenge personal jurisdiction in an unlawful detainer case. Section 418.10 authorizes a motion to quash only where the summons is improper, or the service of process is defective … Our holding does not foreclose a defendant from consenting to the court's jurisdiction and responding to the five-day summons using a different procedural tool, like a demurrer or answer (§§ 430.10, 430.30). Nor does it stop a defendant from simultaneously challenging personal jurisdiction and the sufficiency of the complaint by filing a motion to quash as well as a demurrer, answer, or motion to strike (§ 418.10, subd. (e))."
 

(Stancil v. Superior Court (2021) 11 Cal.5th 381, 400–401.)

"(e) A defendant or cross-defendant may make a motion under this section and simultaneously answer, demur, or move to strike the complaint or cross-complaint. 

(1) Notwithstanding Section 1014, no act by a party who makes a motion under this section, including filing an answer, demurrer, or motion to strike constitutes an appearance, unless the court denies the motion made under this section. If the court denies the motion made under this section, the defendant or cross-defendant is not deemed to have generally appeared until entry of the order denying the motion. 

(2) If the motion made under this section is denied and the defendant or cross-defendant petitions for a writ of mandate pursuant to subdivision (c), the defendant or cross-defendant is not deemed to have generally appeared until the proceedings on the writ petition have finally concluded. 

(3) Failure to make a motion under this section at the time of filing a demurrer or motion to strike constitutes a waiver of the issues of lack of personal jurisdiction, inadequacy of process, inadequacy of service of process, inconvenient forum, and delay in prosecution."

Code Civ. Proc., § 418.10 

"(b) The service and filing of a notice of motion under subdivision (a) shall extend the defendant's time to plead until five days after service upon him of the written notice of entry of an order denying his motion, except that for good cause shown the court may extend the defendant's time to plead for an additional period not exceeding 15 days."

Code Civ. Proc., § 1167.4 

Following the November 30, 2022 hearing, the court mailed notice denying the motion to quash on the same day. Defendant had five (5) days to file a responsive pleading, plus five (5) days for mail service. (Code Civ. Proc., §§ 418.10, 1013.) The cutoff for the filing of any and all responsive pleadings was Monday December 12, 2022. (Butenschoen v. Flaker (2017) 16 Cal.App.5th Supp. 10, 15.) The demurrer was not filed until January 4, 2023, which is 35 days. The unlimited court jurisdiction rules for a demurrer are not applicable on a summary unlawful detainer action.

The denied motion to quash constituted an appearance in the action. (See Code Civ. Proc., § 1170.) The demurrer is untimely and therefore taken off-calendar.

Motion to Strike: Granted.

Defendant Charles Johnson challenges the second amended complaint on grounds of a lack of a valid verification. Plaintiff in opposition argues the motion to strike the verification itself as improper subject matter of a motion to strike, and, regardless, the verification was properly executed by counsel. The court electronic filing system shows no reply at the time of tentative ruling publication cutoff.

The motion to strike was filed on December 8, 2022. For the reasons addressed above, the motion to strike is timely.

On the verification, Johnson challenges the Judicial Council form drafted verification on grounds that attorney Adam Apollo insufficiently makes a showing of unavailability of the client, thereby allowing counsel to execute the verification.

“(a) Every pleading shall be subscribed by the party or his or her attorney. When the state, any county thereof, city, school district, district, public agency, or public … In all cases of a verification of a pleading, the affidavit of the party shall state that the same is true of his own knowledge, except as to the matters which are therein stated on his or her information or belief, and as to those matters that he or she believes it to be true; and where a pleading is verified, it shall be by the affidavit of a party, unless the parties are absent from the county where the attorney has his or her office, or from some cause unable to verify it, or the facts are within the knowledge of his or her attorney or other person verifying the same. When the pleading is verified by the attorney, or any other person except one of the parties, he or she shall set forth in the affidavit the reasons why it is not made by one of the parties.

“When a corporation is a party, the verification may be made by any officer thereof. …

“When the verification is made by the attorney for the reason that the parties are absent from the county where he or she has his or her office, or from some other cause are unable to verify it, or when the verification is made on behalf of a corporation or public agency by any officer thereof, the attorney's or officer's affidavit shall state that he or she has read the pleading and that he or she is informed and believes the matters therein to be true and on that ground alleges that the matters stated therein are true. However, in those cases the pleadings shall not otherwise be considered as an affidavit or declaration establishing the facts therein alleged. …”

(Code Civ. Proc., § 446.)

The form verification lacks any explanation for the lack of a signature from a corporate officer of Plaintiff. (Silcox v. Lang (1889) 78 Cal. 118, 122; League of Women Voters v. Eu (1992) 7 Cal.App.4th 649, 656; DeCamp v. First Kensington Corp. (1978) 83 Cal.App.3d 268, 275.) The explanation in the opposition was not provided at the time of filing the operative complaint.

The court declines to consider the January 17, 2022 filed “verification” as it is not properly filed with the operative complaint. The court therefore grants the motion to strike. Plaintiff is granted five (5) days leave to amend. Failure to timely file a third amended complaint may lead to dismissal of the action. All responsive pleading deadlines are now reset under the unlawful detainer time guidelines.

Defendant to give notice.