Judge: Stephen P. Pfahler, Case: 22CHCV00394, Date: 2022-09-22 Tentative Ruling

Case Number: 22CHCV00394    Hearing Date: September 22, 2022    Dept: F49

Dept. F-49

Date: 9-22-22 c/f 9-19-22

Case # 22CHCV00394

Trial Date: Not Set

DEMURRER TO THE COMPLAINT

MOVING PARTY: Defendant, A-Z Communications, Inc.

RESPONDING PARTY: Plaintiff, Napa Industries, LLC

RELIEF REQUESTED

Demurrer to the Complaint for Unlawful Detainer

SUMMARY OF ACTION

On June 1, 2022, plaintiff Napa Industries, LLC filed a complaint for unlawful detainer against defendant A-Z Communications, Inc. based on the failure to pay rent on the commercial premises.

RULING: Overruled.

Defendant A-Z Communications, Inc. challenges complaint on grounds that the operative pleading lacks allegations of proper service of the notice pay rent or quit. The demurrer comes after Defendant filed the demurrer, then 17 days later filed a 170.6 challenge to Department 47, which was accepted. The court will consider the demurrer notwithstanding the untimely and improperly filed peremptory challenge following Defendant’s appearance in the action. (Code Civ. Proc., 170.6, subd. (a)(2).)

Plaintiff in opposition contends the challenges in no way undermine the propriety of the complaint. Proper service was performed.

Defendant in reply emphasizes the failure to check the substituted service box in the form complaint, and lack of substantive opposition, requires the court to sustain the demurrer.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) 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 applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

Sections 9 and 10 of the complaint specifically indicate service of a 3-Day Notice to Pay Rent or Quit via personal service and posting on April 6, 2022. A copy of the 3-Day Notice to Pay Rent or Quit is attached as Exhibit 2 of the complaint, with a proof of service as Exhibit 3. The court finds no facial defect in the allegations or proof of service. (Code Civ. Proc., § 1166, subd. (a)(5).)

The demurrer is overruled. Defendant to answer the complaint within five (5) days.

Defendant to give notice.