Judge Stephen P. Pfahler, Case Number: 23CHCV02188, Date: 2023-10-12 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 23CHCV02188, Date: 2023-10-12 Tentative Ruling

Case Number: 23CHCV02188 Hearing Date: October 12, 2023 Dept: F49

Dept. F-49

Date: 10-12-23

Case # 23CHCV02188

Trial Date: Not Set

DEMURRER TO THE COMPLAINT

MOVING PARTY: Defendant, Willie Ellis, pro per

RESPONDING PARTY: Plaintiff, Northwestern Mutual Life Insurance Company

RELIEF REQUESTED

Demurrer to the Complaint for Unlawful Detainer

SUMMARY OF ACTION

On July 24, 2023, plaintiff Northwestern Mutual Life Insurance Company filed a complaint for Unlawful Detainer against Willie Ellis. Plaintiff alleges nonpayment of rent on 9400 Corbin Ave., Unit 302, with an outstanding balance in excess of $34,000 as of the date of the complaint.

RULING: Overruled.

Defendant Willie Ellis, in pro per, challenges the complaint for unlawful detainer on grounds that the operative pleading relies on an improper 3-Day Notice to Pay Rent or Quit in that the notice lacks an option to “cure the breach.” Defendant relies on the lease agreement itself lacking any language of a basis for termination of the termination of the lease term due to non-payment of rent. Defendant contends that “the lack of opportunity to perform” thereby renders the unlawful detainer invalid. Defendant also references an alleged claim of nuisance not referenced in the 3-Day Notice. The court electronic filing system shows no opposition or reply on file prior to the tentative ruling publication deadline. Because of the shortened deadlines, including the option for oral opposition, the court reserves the option to consider any filed or oral opposition and take the matter under submission.

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.)

Code of Civil Procedure section 1946.2 provides in relevant part: “Before an owner of residential real property issues a notice to terminate a tenancy for just cause that is a curable lease violation, the owner shall first give notice of the violation to the tenant with an opportunity to cure the violation pursuant to paragraph (3) of Section 1161 of the Code of Civil Procedure. If the violation is not cured within the time period set forth in the notice, a three-day notice to quit without an opportunity to cure may thereafter be served to terminate the tenancy.” (Code Civ. Proc., 1946.2, subd. (c).)

“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).)

Neither the complaint nor demurrer incorporate a copy of the lease. The complaint itself alleges a one-year lease term, which Plaintiff also references. The 3-Day Notice to Pay Rent or Quit alleges rent owed from July 2022 through June 2023, which encompasses a one year term. Under the language of Code of Civil Procedure section 1174, subdivision (c), landlord may seek termination of the lease upon expiration of the term. The 3-Day Notice properly states the deficiency and basis for termination based on past nonpayment of rent following expiration of the lease term. Nothing in the demurrer establishes an improperly pled claim and therefore an invalid claim. (Code Civ. Proc., § 1161(3); Delta Imports, Inc v. Municipal Court (1983) 146 Cal.App.3d 1033, 1036.)

The complaint otherwise lacks any reference to a “nuisance” based unlawful detainer action. The court therefore declines to consider any arguments regarding the unpled “nuisance.”

The court overrules the demurer. Ellis to answer within five (5) days.

Defendant to give notice.