Judge: Stephen P. Pfahler, Case: 22CHCV00289, Date: 2023-03-20 Tentative Ruling

Case Number: 22CHCV00289    Hearing Date: March 20, 2023    Dept: F49

Dept. F-49

Date: 3-20-23 (a/f 5-11-23 via 2-15-23 order)

Case # 22CHCV00289

Trial Date: Not Set

DEMURRER & MOTION TO STRIKE

MOVING PARTY: Defendant, Charles Johnson

RESPONDING PARTY: Plaintiff, Dunn Investment Properties, Inc.

RELIEF REQUESTED

Demurrer and Motion to Strike the Third 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 January 19, 2023, the court granted the motion to strike the second amended complaint. On January 26, 2023, Plaintiff filed the third amended complaint. On February 15, 2023, the court denied the motion to quash.

RULING: Overruled as to the Demurrer/Denied as to the Motion to Strike

Defendant Charles Johnson submits a demurrer and moves to strike the third amended complaint on grounds of ambiguity, uncertainty and “missing relevant information.” Plaintiff in “consolidated” opposition maintains the third amended complaint is property pled. Plaintiff in opposition contends Defendant presents a piecemeal or successive demurrer in that the issues raised in the instant demurrer with paragraph 7, 12 and 19, were not previously addressed in the earlier demurrers and motions to strike. Plaintiff maintains no allegations changed from the prior iterations of the complaint. Plaintiff additionally defends the propriety of the allegations in the complaint regarding the past due rent and Tenant Protection Act.

The court electronic filing system shows no reply on file at the time of the tentative ruling publication cutoff.

Defendant specifically challenges the lack of a checkmark on sections 7 and 12 regarding the tenant protection act, and amount of rent due upon service of the 3-Day/30-Day Notice to Pay Rent or Quit (Defendant utilizes both terms in the motion, and both are attached to the operative complaint). According to Defendant, the omission renders the operative complaint uncertain as to the basis of the unlawful detainer.

Defendant also challenges the operative complaint in that the request improperly states the amount of damages and/or seeks excessive rent damages referenced in section 19. Defendant maintains Plaintiff cannot recover damages past April 1, 2022, and the request for damages to April 11, 2022, constitutes an improper amount.

Plaintiff incorporates a 3-Day Notice to Pay or Quit and 30 Day Notice to Quit. Defendant offers no challenge to the notices themselves, and the court finds the notices conform to the requirements.

“When the tenant continues in possession, in person or by subtenant, without the permission of the landlord, or the successor in estate of the 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 that 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 the tenant 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…”

(Code Civ. Proc., 1161(2).)

The notice must be included in the complaint, among the requirements.

“(a) The complaint shall: (1) Be verified and include the typed or printed name of the person verifying the complaint. (2) Set forth the facts on which the plaintiff seeks to recover. (3) Describe the premises with reasonable certainty. (4) If the action is based on paragraph (2) of Section 1161, state the amount of rent in default. (5) State specifically the method used to serve the defendant with the notice or notices of termination upon which the complaint is based. This requirement may be satisfied by using and completing all items relating to service of the notice or notices in an appropriate Judicial Council form complaint, or by attaching a proof of service of the notice or notices of termination served on the defendant.”

(Cal. Code Civ. Proc. § 1166, subd (a).)

“When the proceeding is for an unlawful detainer after default in the payment of rent, and the lease or agreement under which the rent is payable has not by its terms expired, and the notice required by Section 1161 has not stated the election of the landlord to declare the forfeiture thereof, the court may, and, if the lease or agreement is in writing, is for a term of more than one year, and does not contain a forfeiture clause, shall order that a writ shall not be issued to enforce the judgment until the expiration of five days after the entry of the judgment, within which time the tenant, or any subtenant, or any mortgagee of the term, or any other party interested in its continuance, may pay into the court, for the landlord, the amount found due as rent, with interest thereon, and the amount of the damages found by the jury or the court for the unlawful detainer, and the costs of the proceedings, and thereupon the judgment shall be satisfied and the tenant be restored to the tenant's estate. If payment as provided in this subdivision is not made within five days, the judgment may be enforced for its full amount and for the possession of the premises. In all other cases the judgment may be enforced immediately.”

(Code Civ. Proc. § 1174, subd. (c).)

While Plaintiff failed to actually check the box in section 7.a. regarding the exclusion from the tenant protection act, Plaintiff interlineates the exclusion due to commercial premises. The motion lacks any legal support for the impropriety of the note instead of additionally checking the box.

As for sections 12 and 19, the operative complaint specifically alleges a rental value of $657.53, which is NOT challenged in section 13, total outstanding rent of $39,112, which conforms to the 3 day notice to pay rent or quit. The date of April 1, 2022, is listed, which follows the 30 day notice to quit, but mismatches with the 3 day notice. The dates also conflict with Section 9.b., which lists the expiration dates as March 16, 2022, and April 11, 2022.

While the amount remains the same as the notice, Defendant correctly argues that the operative complaint improperly lists the notice to quit expiration date thereby creating a disparity. While the amount of the damages remains unchallenged, the dates when read in context of the notice to pay rent or quit render the complaint subject to a demurrer and/or motion to strike. Landlord cannot overstate the amount of rent due. The notice to quit cannot be amended, but the complaint can be amended.

Nevertheless, a review of all four (4) versions of the complaint lists the exact same dates and amounts. The first demurrer to the complaint filed on May 10, 2022, and heard on June 30, 2022, raised no such argument. The second demurrer filed on July 12, 2022, to the first amended complaint, and heard on September 16, 2022, also failed to raise the arguments of the current demurrer and motion to strike. The December 8, 2022, filed motion to strike the second amended complaint only challenged the verification to the operative pleading.

Plaintiff correctly argues the rule against piecemeal or successive demurrers and motions to strike. “A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer.” (Code Civ. Proc. § 430.41, subd. (b).) “A party moving to strike a pleading that has been amended after a motion to strike an earlier version of the pleading was granted shall not move to strike any portion of the pleadings on grounds that could have been raised by a motion to strike as to the earlier version of the pleading.” (Code Civ. Proc. § 435.5, subd. (b).)

The demurrer is overruled and motion to strike denied. Defendant to answer the third amended complaint within 5 days of this hearing. 

 Motion for Summary Adjudication set for March 21, 2023, has been continued to May 24, 2023.

Defendant to give notice.