Judge: Theresa M. Traber, Case: 23STCV27886, Date: 2024-06-05 Tentative Ruling

Case Number: 23STCV27886    Hearing Date: June 5, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     June 5, 2024               TRIAL DATE: NOT SET

CASE:                         1200 Management LLC v. Liron Shvartz

CASE NO.:                 23STCV27886           

DEMURRER TO COMPLAINT; MOTION TO STRIKE COMPLAINT

MOVING PARTY:               Defendant Liron Shvartz

RESPONDING PARTY(S): No response on eCourt as of 05/31/24

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for unlawful detainer for nonpayment of rent that was filed on November 14, 2023.

Defendant demurs to the Complaint and moves to strike the Complaint.

TENTATIVE RULING:

Defendant’s Demurrer to the Complaint is SUSTAINED without leave to amend.

Defendant’s Motion to Strike is MOOT.

Dismissal is entered this date with prejudice.

DISCUSSION:

Demurrer to Complaint

            Defendant demurs to the Complaint in its entirety.

Request for Judicial Notice

            Defendant requests that the Court take judicial notice of various documents. As none of these exhibits are material to the Court’s ruling, which turns solely on the defective 3-Day Notice, Defendant’s request is DENIED. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].) 

Defective Notice

            Defendant demurs to the Complaint for failure to state facts sufficient to constitute a cause of action because Plaintiff did not comply with the notice requirements for unlawful detainer.

“The established rule is that, where the right to a forfeiture is created by contract or by law, ‘it has always been considered that it was necessary to restrain it to the most technical limits of the terms and conditions upon which the right is to be exercised.’” (Downing v. Cutting Packing Co. (1920) 183 Cal. 91, 95.) Put differently, unlawful detainer statutes are strictly construed, and “every intendment and presumption is against the person seeking to enforce the forfeiture.” (Horton-Howard v. Payton (1919) 44 Cal.App. 108, 112.) “Because of the summary nature of an unlawful detainer action, a notice is valid only if the lessor strictly complies with the statutorily mandated notice requirements.” (Bevill v. Zoura (1994) 27 Cal.App.4th 694, 697 [internal citations omitted].) Valid notice is a prerequisite to an unlawful detainer action. (See Kwok v. Bergren (1982) 130 Cal. App. 3d 596, 599-600 [citing Lawrence Barker, Inc. v. Briggs (1952) 39 Cal.2d 654, 661].)

            Here, the Complaint alleges that the 3-Day Notice to Pay Rent or Quit was served exclusively by posting. Pursuant to Code of Civil Procedure section 1162, a notice must be served by either personal service (Code Civ. Proc. § 1162(a)(1); (b)(1)), by substituted service upon a person of suitable age and discretion and thereafter mailing a copy, (Id. subd. (a)(2); (b)(2)), or by “affixing a copy in a conspicuous place on the property, and also sending a copy through the mail addressed to the tenant at the place where the property is situated.” (Code Civ. Proc. § 1162 (a)(3), (b)(3) [emphasis added].) No proof of service is attached to the Complaint, and the Complaint does not allege service by mail. This defect is fatal to the Complaint.

            As the Complaint contains a fatal defect in service of the underlying 3-Day Notice, the Court does not reach Defendant’s arguments regarding the proper owner of the premises or uncertainty in the pleadings.

Leave to Amend

            When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318).  When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Accordingly, California law imposes the burden on the plaintiffs to demonstrate the manner in which they can amend their pleadings to state their claims against a defendant.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment.  [Citation.]  Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

            Here, the deficiency in the Complaint arises from an express allegation that admits to improper service of the 3-Day Notice to Pay Rent or Quit. Amending the Complaint to allege a different form of service would implicate the sham pleading doctrine because “[a] plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradicts facts pleaded in the original complaint, or by suppressing facts which prove the pleaded facts false.” (Cantu v. Resolution Trust Corporation (1992) 4 Cal.App.4th 857, 877-878.) Leave to amend is therefore not proper in this instance.

Conclusion

            Accordingly, Defendant’s Demurrer to the Complaint is SUSTAINED without leave to amend.

Motion to Strike Complaint

            Defendant’s Motion to Strike is MOOT for the reasons stated above.

CONCLUSION:

Accordingly, Defendant’s Demurrer to the Complaint is SUSTAINED without leave to amend.

Defendant’s Motion to Strike is MOOT.

Dismissal is entered this date with prejudice.

Moving Party to give notice.

IT IS SO ORDERED.

Dated:  June 5, 2024                           ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.