Judge: Theresa M. Traber, Case: 25STCV05015, Date: 2025-05-28 Tentative Ruling
Case Number: 25STCV05015 Hearing Date: May 28, 2025 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: May 28, 2025 TRIAL DATE: NOT
SET
CASE: 5850 South Avalon Blvd LLC v. Project
Metals, et al.
CASE NO.: 25STCV05015 
DEMURRER
TO COMPLAINT
MOVING PARTY: Defendants Project Metals, Power Fasteners, and
Patrick Harrington
RESPONDING PARTY(S): Plaintiff 5850
South Avalon Blvd LLC.
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an unlawful detainer action for nonpayment of rent that was filed
on February 21, 2025.
Defendants demur to the Complaint
in its entirety.
TENTATIVE RULING:
Defendants’ Demurrer to the
Complaint is SUSTAINED without leave to amend.
DISCUSSION:
Defendants demur to the Complaint
in its entirety.
Legal Standard
A demurrer tests whether the
complaint states a cause of action. (Hahn v. Mirda (2007) 147
Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations
liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and
Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the
defects must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) “A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters. Therefore, it lies only where the defects appear on the face
of the pleading or are judicially noticed.” (SKF Farms v. Superior Court
(1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing
is whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The
ultimate facts alleged in the complaint must be deemed true, as well as all
facts that may be implied or inferred from those expressly alleged. (Marshall
v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields
v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n
demurrer, pleadings are read liberally and allegations contained therein are
assumed to be true”].) “This rule of liberal construction means that the
reviewing court draws inferences favorable to the plaintiff, not the
defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th
1228, 1238.) There is no meet and confer requirement for a demurrer in an
action for unlawful detainer. (Code Civ. Proc. § 430.41(d).)
Analysis
Defendants’
primary challenge to the Complaint is that it fails to state facts sufficient
to constitute a cause of action because of a defect in the 3-Day Notice to Pay
Rent or Quit on which the Complaint is premised.
“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].)
Code of Civil Procedure section
1161 subdivision (2) expressly requires that, before an unlawful detainer
action is commenced for nonpayment of rent, the landlord provide the tenant
“three days’ notice, excluding Saturdays and Sundays and other judicial
holidays, in writing[.]” (Code Civ. Proc. § 1161(2).) Here, however, the
3-Day Notice attached to the Complaint only states that the tenant has “three
(3) days” to pay the outstanding rent, without stating that the calculation
excludes Saturdays, Sundays, and other judicial holidays. (See Complaint Exh.
2.) Plaintiff argues that the notice is sufficient because the statute does not
require the notice to specify the proper time to pay rent. This contention is
wholly contrary to the plain language of the statute. Plaintiff purports to
offer two cases which supposedly find such defective notice to be valid.
However, one of those cases, Kwok v. Bergren (1982) 130 Cal.App.3d 596,
states nothing of the sort, addressing only the defective method of service, and
the other, supposedly titled Culver Center Partners
East #1 L.P. v. Baja Fresh Westlake Village Inc. (2002) 101 Cal.App.4th
1181, does not actually exist. If Plaintiff intended to rely on Culver
Center Partners East #1 L.P. v. Baja Fresh Westlake Village Inc. (2010) 185
Cal. App. 4th 744 – a case with the same name but a different citation – it
provides no support for Plaintiff’s improperly phrased notice, because that
case analyzed the manner of service used in a commercial unlawful detainer and
found it wanting. The Court is therefore
unmoved by Plaintiff’s unsupported arguments which conflict with the plain
language of section 1161(2). The 3-Day Notice to Pay Rent or Quit is defective
on its face.
In the alternative, Plaintiff
argues that, even if the Notice is erroneous, the defect is harmless because
Defendants were allowed the full three court days before the action was
commenced. This contention is immaterial. Strict compliance with the notice
provisions is the rule for an unlawful detainer action. (Bevill v. Zoura
(1994) 27 Cal.App.4th 694, 697.) The Notice to Pay Rent or Quit is defective,
and the Complaint therefore fails to state facts sufficient to constitute a
cause of action.
As the Notice on which the action
is premised is defective, the Court declines to address the remaining arguments
raised on this demurrer.
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.)
As the
deficiency in the Complaint arises from a defect in the Notice to Pay Rent or
Quit that is the prerequisite to an unlawful detainer action, it is not
possible to cure the Complaint by amendment. Leave to amend is not proper in
this instance.
CONCLUSION:
Accordingly,
Defendants’ Demurrer to the Complaint is SUSTAINED without leave
to amend.
Moving
Parties to give notice.
//
IT IS SO ORDERED.
Dated: May 28, 2025 ___________________________________
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.