Judge: Virginia Keeny, Case: 23VECV01035, Date: 2023-04-28 Tentative Ruling

Case Number: 23VECV01035    Hearing Date: April 28, 2023    Dept: W

SHARON ZALEWSKI v. CHRISTOPHER OLIVER

demurrer to the complaint

Date of Hearing:        April 28, 2023                                     Trial Date:       None set.

Department:              W                                                        Case No.:        23VECV01035

Moving Party:            Defendant Christopher Oliver

Responding Party:     No opposition

BACKGROUND

This is an unlawful detainer action. Plaintiff Sharon Zalewski alleged they served a 3-Day Notice to Quit on Defendant Christopher Oliver.

[Tentative] Ruling

Defendant Christopher Oliver’s Demurrer to the Complaint is OVERRULED.

DISCUSSION

Defendant Christopher Oliver demurs to the unlawful detainer complaint on the grounds the unlawful detainer complaint fails to state facts sufficient to constitute a cause of action because the “3 Day notice is improper” and the Plaintiff accepted a $3,000.00 Cashier's check.

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.)  No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). 

Defendant Oliver first demurs to the complaint on the grounds the 3-Day Notice to Pay Rent or Quit does not provide the phone number of the entity to whom rent is to be paid, as required by Code of Civil Procedure section 1161(2). The 3-Day Notice, which is attached to the complaint, includes Plaintiff’s information.

Defendant also demurs to the complaint on the grounds Plaintiff lacks standing. However, the complaint states Plaintiff is the owner of the property. As is well known, in a demurrer, all facts alleged in the complaint are assumed to be true, so Defendants contention that Plaintiff lacks standing without more is not enough to sustain a demurrer. Defendant did not seek judicial notice of the official County records Defendant refers to or the purported payment of rent.

Accordingly, Defendant’s demurrer is OVERRULED.