Superior Court of California

County of Los Angeles

Department 50

KB SLAUSON, LLC,

Plaintiff,

vs.

RICH HONEY, INC., et al.,

Defendants.

Case No.:

24STCV15682

Hearing Date:

July 17, 2024

Hearing Time: 10:00 a.m.

[TENTATIVE] ORDER RE:

DEMURRER TO COMPLAINT

Background

On June 21, 2024 Plaintiff KB Slauson, LLC (“Plaintiff”) filed this action against Defendant Rich Honey, Inc. (“Defendant”). The Complaint alleges one cause of action for unlawful detainer.

In the Complaint, Plaintiff alleges that it is the owner of the property commonly known as 919 East Slauson Avenue, Los Angeles, CA 90011 (the “Realty”). (Compl., ¶ 1(b).) “On or about September 29, 2014, Plaintiff and Defendant entered into a written lease (Lease), whereby, inter alia, the Defendant leased the Realty…” (Compl., ¶ 7.) Plaintiff alleges that “Defendant has breached the Lease in that Defendant failed to pay when due [certain] Rent payments due under the Lease…” (Compl., ¶ 9.)

Plaintiff further alleges that “[o]n June 14, 2024, Plaintiff caused to be served upon Defendants, and each of them, by substitute service (by post and mail at the Realty), a written notice stating the reasonably estimated amount of rent due (pursuant to Code of Civil Procedure § 1161.1) and requiring Defendants to pay the whole thereof or deliver up possession of the Realty and forfeit the Lease within three (3) business days after service of said notice.” (Compl., ¶ 10.) Plaintiff alleges that “[m]ore than three (3) days have elapsed since the service of said Rent Notice. Defendants have not tendered the amount demanded in the Rent Notice. Accordingly, Plaintiff is entitled to possession of said Realty.” (Compl., ¶ 11.) Plaintiff seeks, inter alia, “restitution of the Realty,” “forfeiture of the LEASE,” “rent in the sum of $103,181.05,” and “damages in the sum of $265.16 per day from July 1, 2024 through the date of entry of judgment…” (Compl., p. 6.)

Defendant now demurs to the Complaint. Plaintiff opposes.

Discussion

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. ((Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” ((C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. ((Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” ((Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

In the demurrer, Defendant cites to Code of Civil Procedure section 1161, subdivision (2). This provision provides that “[a] tenant of real property, for a term less than life, or the executor or administrator of the tenant’s estate heretofore qualified and now acting or hereafter to be qualified and act, is guilty of unlawful detainer:

2. 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. In all cases of tenancy upon agricultural lands, if the tenant has held over and retained possession for more than 60 days after the expiration of the term without any demand of possession or notice to quit by the landlord or the successor in estate of the landlord, if applicable, the tenant shall be deemed to be holding by permission of the landlord or successor in estate of the landlord, if applicable, and shall be entitled to hold under the terms of the lease for another full year, and shall not be guilty of an unlawful detainer during that year, and the holding over for that period shall be taken and construed as a consent on the part of a tenant to hold for another year.

An unlawful detainer action under this paragraph shall be subject to the COVID-19 Tenant Relief Act of 2020 (Chapter 5 (commencing with Section 1179.01)) if the default in the payment of rent is based upon the COVID-19 rental debt.” (Code Civ. Proc., § 1161, subd. (2).)

Defendant asserts that “[i]n this case, the three-day notice served by Plaintiff demanded not only rent but also other charges. Such a demand exceeds the statutory requirements and is therefore defective. Because the notice is defective, Plaintiff cannot maintain an unlawful detainer action based on it.” (Demurrer at p. 4:3-6.) The Court notes that Defendant does not cite to legal authority to support this proposition.

In addition, in the opposition, Plaintiff asserts that “[t]he Complaint alleges that all of the amounts set forth in the Notice are rent.” (Opp’n at p. 4:9-10.) Indeed, the Complaint attaches as Exhibit “A” a “Three Business Days Notice to Pay Rent or Quit.” (Compl., ¶ 10, Ex. A.) This document alleges that “[t]he Lease defines all monetary obligations due under the Lease as rent. You have breached this obligation by failing to pay monthly rent as follows…” (Ibid.) As noted by Defendant, “[i]t is well settled that a general demurrer admits the truth of all material factual allegations in the complaint and that the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof, does not concern the reviewing court.” ((Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1267.)

Next, Defendant asserts that “[a] complaint based on a written contract, such as a lease agreement, must include a copy of the contract or set forth its terms verbatim. Plaintiff’s failure to attach the lease agreement or to adequately allege its essential terms renders the Complaint fatally defective.” (Demurrer at p. 4:8-10.) Defendant does not cite any legal authority to support this argument. The Court notes that in McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489, the Court of Appeal noted that “[a] cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom. A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. In order to plead a contract by its legal effect, plaintiff must allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.” (Internal quotations and citations omitted.)

In the opposition, Plaintiff asserts that “[h]ere, the Landlord has quoted the actual language of the Lease or plead its legal effect thereby identifying the basis of its claims for breach of lease.” (Opp’n at p. 3:17-18.) In the first cause of action, Plaintiff alleges, inter alia, that “[o]n or about September 29, 2014, Plaintiff and Defendant entered into a written lease (Lease), whereby, inter alia, the Defendant leased the Realty upon the following terms: a. The term of the Original Lease was five (5) years (‘Lease Term’). b. Pursuant to Section 1.5 of the Basic Lease Provision, Paragraphs 4 of the Lease, and Section 2.02 of the Lease Addendum, Defendant agreed, inter alia, to pay Plaintiff base monthly rent in the sum of $5,564.44, with yearly increases. In addition, the Defendant agreed to pay as ‘additional rent’ certain expenses associated with Common Area Maintenance (‘CAM’) charges, Fire Monitoring, and Property Insurance property.” (Compl., ¶ 7.) Plaintiff further alleges that “[a]ll relevant times, the monthly rent had increased by terms of the Lease to $6,262.82.” (Compl., ¶ 8.)

Defendant did not file any reply in support of the demurrer, and thus does not dispute Plaintiff’s assertion that it properly pled the legal effect of the subject lease.

In light of the foregoing, the Court overrules Defendant’s demurrer.

Conclusion

Based on the foregoing, Defendant’s demurrer to the Complaint is overruled. Defendant is ordered to file and serve its answer to the Complaint within 10 days of the date of this Order.¿

Plaintiff is ordered to give notice of this Order.¿

DATED: July 17, 2024 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court