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SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

SHERMAN SEPULVEDA LAND COMPANY SHOPPING CENTER, LLC,

Plaintiff,

vs.

CHRIS KIM, et al.

Defendants.

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CASE NO: 22VECV01199

TENTATIVE ORDER RE: DEFENDANT CHRIS KIM’S DEMURRER

Dept. U

8:30 a.m.

December 14, 2022

I. BACKGROUND

On August 19, 2022, Plaintiff Sherman Sepulveda Land Company Shopping Center (Plaintiff) filed a Complaint for unlawful detainer against Defendants Chris Kim, all Unknown Occupants, and Does 1-10.

On August 30, 2022, Defendant Chris Kim (Defendant) filed this demurrer. On October 7, 2022, Plaintiff filed an opposition. No reply to Plaintiff’s opposition has been filed.

II. REQUEST FOR JUDICIAL NOTICE

Plaintiff asks the Court to take judicial notice of three filings in this case. Judicial notice may be taken of records of any court of this state. See Evid. Code § 452(d). Accordingly, Plaintiff’s request is GRANTED.

III. LEGAL STANDARD

With respect to unlawful detainer actions, “[o]n or before the day fixed for his appearance, the defendant may appear and answer or demur.” Code Civ. Proc. § 1170.

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As a general matter, 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 pleading alone, and not the evidence or facts alleged.” E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315. As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. Ibid. The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.

IV. DISCUSSION

Here, Defendant argues that the Court should sustain his demurrer because the three-day notice to quit was not properly served on Defendant. In support, Defendant cites to Hinman v. Wagnon, (1959) 172 Cal.App.2d 24.

Hinman does not apply here. In Hinman, the court sustained a demurrer to an unlawful detainer complaint because the three-day notice was defective on its face. Id. at 28. Specifically, the three-day notice in that case did not comply with Code of Civil Procedure section 1161 as written in 1959 because it only told the defendant to surrender the premises and did not provide the defendant with the alternative option of paying rent. Ibid. Whether a three-day notice is defective on its face is a question of law, and thus the Hinman Court could properly sustain the demurrer in that case.

Here, there is nothing to indicate that Plaintiff’s three-day notice is defective on its face. The three-day notice in this case provided Defendant with the options of either paying the $39,326.64 in rent that was due or vacating and surrendering the premises to Plaintiff. Complaint, Ex. 2.

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Defendant does not appear to argue that the three-day notice is defective on its face. Rather, Defendant argues his demurrer should be sustained because he never received the notice prior to Plaintiff filing its complaint. However, this is a question of fact, and at the demurrer stage the Court assumes the truth of a complaint’s factual allegations. See E-Fab, Inc., 153 Cal.App.4th at 1315. Plaintiff’s complaint pleads that Defendant was properly served with the three-day notice by attaching proof of service. Complaint, Ex. 3.

Plaintiff has properly pled its cause of action, and therefore Defendant’s demurrer is overruled.

V. CONCLUSION

Defendant Chris Kim’s demurrer is OVERRULED.

Defendant is given 10 days leave to file an answer.

Plaintiff is ORDERED to give notice.

DATED: December 14, 2022

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Valerie Salkin

Judge of the Superior Court