Judge: William A. Crowfoot, Case: 22AHCV00756, Date: 2023-01-20 Tentative Ruling
Case Number: 22AHCV00756 Hearing Date: January 20, 2023 Dept: 3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
I. INTRODUCTION
On September 9, 2022, plaintiff Concord Property Management, Inc. (“Plaintiff”) filed this unlawful detainer action against defendants Qiao Liu, an individual doing business as Noodle Bistro (“Defendant”), and Does 1 through 20, inclusive.
On December 12, 2022, Defendant filed this instant demurrer to Plaintiff’s Complaint on the grounds that it does not state facts sufficient to state a claim against Defendant.
On January 9, 2023, Plaintiff filed an opposition.
On January 17, 2023, Defendant filed a reply.
Although the opposition and reply papers were untimely filed, the Court will consider them because there is no showing of prejudice.
II. FACTUAL BACKGROUND
Plaintiff alleges that on April 1, 2018, it entered into a written AIR Standard Industrial/Commercial Multi-Tenant Lease – Net (“AIR Lease”) with Defendant concerning the commercial premises commonly known as 9461 Las Tunas Drive, Temple City, CA 91780 (“the Premises”). (Compl. ¶ 8, Exhib. A.) On July 12, 2019, the parties entered into an amendment to the AIR Lease (AIR Lease and amendment collectively referred to as “Lease”). (Compl. ¶ 9, Exhib. B.) Plaintiff alleges that Defendant breached the provisions of the Lease by failing to pay rent. (Compl. ¶ 11.) Plaintiff served a Three Business Day Notice to Pay Rent or Quit on Defendant and all others in possession. (Compl. ¶ 13.)
III. LEGAL STANDARDS
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.)
IV. DISCUSSION
Motion to Strike
Defendant moves to strike Plaintiff’s complaint on the grounds that it is improper and does not conform to California law because he is not a proper defendant in this action. Defendant claims that the “Assignment and Assumption of Lease and Consent of Lessor” dated July 2019 shows that, after his assignment of the lease, he has not been in possession of the Premises.
In opposition, Plaintiff argues that Defendant remains liable under the Lease, and that his assignment of the Lease did not release him from liability such that he is a proper defendant in this action.
The Court DENIES Defendant’s motion to strike because the Complaint alleges sufficient facts which show that Defendant may still be liable under the Lease, making him a proper defendant in this action.
Demurrer
First, Defendant argues that Plaintiff fails to state a cause of action against Defendant because Plaintiff did not abide by the proper statutory procedures that regulate unlawful detainers. Defendant claims that a plaintiff must state the correct amount due in a three-day notice as a prerequisite to an unlawful detainer action. Defendant cites to Ernst Enter., Inc. v Sun Valley Gasoline, Inc. (1983) 139 Cal.App.3d 355, 359, which held that a notice to pay rent or quit which overstates the rent due is ineffective and will not support an action for unlawful detainer. Here, Plaintiff’s three-day notice includes an Unpaid CAM Charge of $399.60 in addition to the Unpaid Base Rent of $2,579.78. Defendant argues that the inclusion of the unpaid CAM charge renders the three-day notice defective on its face.
In opposition, Plaintiff argues that Defendant’s obligations are intact under the Lease because the terms of the Lease state: “Regardless of Lessor’s consent, no assignment or subletting shall … (ii) release Lessee of any obligations hereunder, or (iii) alter the primary liability of Lessee for the payment of Rent or for the performance of any other obligations to be performed by lessee.” Plaintiff points to this language to claim that Defendant remains a proper Defendant in this action. Additionally, Plaintiff argues that it did not fail to comply with the statutory requirements for the three day notice by including the CAM charges because section 4 of the Lease defines “Rent” as “[a]ll monetary obligations of Lessee to Lessor under the terms of the Lease (except for the Security Deposit).” Plaintiff claims that the monetary obligations include the base rent of $2,352.64, increased by amendment to $2,570.58, and CAM charges at $399.60.
In reply, Defendant argues that Plaintiff unlawfully occupied the premises, making the rental agreements, amendments, and assignments void. Defendant points to Plaintiff’s responses to form interrogatories sent by Defendant. Additionally, Defendant argues that he is not a proper defendant in this action because he is not and has not been in possession of the rental premises.
The Court finds Defendant improperly cites to extrinsic evidence in the form of discovery responses, which the Court may not consider at the demurrer stage. Plaintiff provides sufficient evidence to show that there are facts to maintain an unlawful detainer action against Defendant given the provisions in the Lease which did not release Defendant from liability and the definition of “Rent” which may include the CAM charge.
Second, Defendant argues that the complaint fails to state a claim against Defendant because Defendant is not listed as a proper party. Here, the complaint names defendant Qiao Liu, an individual doing business as Noodle Bistro, but Defendant claims that he closed his restaurant, O Young Rock Pot and vacated the Premises after assigning the lease to an assignee whose restaurant is Noodle Bistro. Defendant states that this constitutes a misjoinder of parties as he has no relationship with nor financial interest in Noodle Bistro.
Plaintiff does not provide any opposing arguments regarding Defendant’s misjoinder claim.
The Court finds that although Defendant is not an individual doing business as “Noodle Bistro,” the Complaint properly identifies Defendant by name and indicates that he is being sued on his capacity as an individual. Additionally, Defendant does not cite any case authority which would support sustaining the demurrer on such grounds. Thus, Plaintiff’s misidentification of Defendant as an individual doing business as “Noodle Bistro” is not a ground to sustain the instant demurrer.
The demurrer is OVERRULED. However, the Court notes that the demurrer may be moot considering the Court’s decision on Defendant’s motion to quash service of summons.
V. CONCLUSION
In light of the foregoing, the Court OVERRULES the demurrer.
Moving party to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.
SUPERIOR
COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF
LOS ANGELES - CENTRAL DISTRICT
I. INTRODUCTION
On
September 9, 2022, plaintiff Concord Property Management, Inc. (“Plaintiff”)
filed this unlawful detainer action against defendants Qiao Liu, an individual
doing business as Noodle Bistro (“Defendant”), and Does 1 through 20, inclusive.
Defendant moves this Court to quash
service of summons and set aside default/default judgment on the grounds.
On
December 12, 2022, Plaintiff filed an opposition.
On
December 28, 2022, Defendant filed a reply.
II. FACTUAL BACKGROUND
On
April 1, 2018, Plaintiff alleges that it entered into a written AIR Standard
Industrial/Commercial Multi-Tenant Lease – Net (“AIR Lease”) with Defendant
concerning the commercial premises commonly known as 9461 Las Tunas Drive,
Temple City, CA 91780 (“the Premises”). (Compl.
¶ 8, Exhib. A.) On July 12, 2019, the
parties entered into an amendment to the AIR Lease (AIR Lease and amendment
collectively referred to as “Lease”). (Compl.
¶ 9, Exhib. B.) Plaintiff alleges that
Defendant breached the provisions of the Lease by failing to pay rent. (Compl. ¶ 11.) Plaintiff served a Three Business Day Notice
to Pay Rent or Quit on Defendant and all others in possession. (Compl. ¶ 13.)
III. LEGAL STANDARDS
Code
of Civil Procedure section 418.10, subdivision (a)(1), provides that a defendant
may file a motion to quash “service of summons on the ground of lack of
jurisdiction of the court over him or her.”
“[A]
party waives any objection to the court’s exercise of personal jurisdiction
when the party makes a general appearance in the action.” (Air Machine Com SRL v. Superior Court (2010)
186 Cal.App.4th 414, 419-420 (Air Machine), citing Roy v. Superior
Court (2005) 127 Cal.App.4th 337, 341, 25 Cal.Rptr.3d 488 (Roy); see
also Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52, 12 Cal.Rptr.3d
711 [“ ‘ “A general appearance operates as a consent to jurisdiction of the
person....” [Citation.]’ ”) ].) “A
defendant appears in an action when the defendant answers, demurs, files a
notice of motion to strike, files a notice of motion to transfer pursuant to
Section 396b, moves for reclassification pursuant to Section 403.040, gives the
plaintiff written notice of appearance, or when an attorney gives notice of
appearance for the defendant....” (Code
Civ. Proc., § 1014.)
“Subdivision
(e) was added to section 418.10 in 2002. (Roy, supra, 127 Cal.App.4th at
p. 341, 25 Cal.Rptr.3d 488.) Subdivision
(e) provides: ‘A defendant or cross-defendant may make a motion under this
section and simultaneously answer, demur, or move to strike the complaint or
cross-complaint.’ Subdivision (e)(1) of
section 418.10 provides: ‘Notwithstanding Section 1014, no act by a party who
makes a motion under this section, including filing an answer, demurrer, or
motion to strike constitutes an appearance, unless the court denies the motion
made under this section. If the court
denies the motion made under this section, the defendant or cross-defendant is
not deemed to have generally appeared until entry of the order denying the
motion.’ (Air Machine, supra,
186 Cal.App.4th at 420.) In Air
Machine, the court held that the defendants’ act of serving a statutory 998
offer of settlement on the plaintiff did not constitute a general appearance
because the defendants served their 998 offer after filing their motion to
quash service of summons. (Id. at
p. 417.)
IV. DISCUSSION
Defendant’s
motion to quash service of summons is brought pursuant to Code of Civil
Procedure section 418.10. Defendant
argues that he was never personally served with the summons and complaint as
alleged on the proof of service. The
proof of service alleges that Defendant was personally served with the summons
and complaint on October 5, 2022, at 3:00 p.m. on the Premises. Defendant claims that he closed his
restaurant “O Young’s Rock Pot” on August 2019 and has not returned to the
Premises. (Q Liu Decl. ¶ 4.) Defendant also claims that at the time of the
alleged personal service, he was in Fresno, California on a business trip. (Q Liu Decl. ¶ 6, Exhibs. 2-3; Yuan Liu Decl.
¶¶ 2-4; Liu Liu Decl. ¶¶ 2-4.)
In
opposition, Plaintiff argues that Defendant’s motion should be denied on the
grounds that he made a general appearance by filing and serving a demurrer
prior to the hearing date for the instant motion to quash.
In
reply, Defendant argues that he did not make a general appearance because he
filed the motion to quash first.
Defendant also requests that the Court disregard Plaintiff’s motion as
untimely.
The
Court finds that personal service was defective because the proof of service
states that the process server personally served Defendant, but Defendant
provides sufficient evidence to show otherwise.
The facts show that Defendant is not the owner of Noodle Bistro since he
closed his business and assigned the lease to Xiaoli Herris, the owner of
Noodle Bistro. Defendant also provides
declarations stating that he was not on the Premises at the time he was
allegedly served because he was in Fresno, California, on a business trip. Plaintiff has not provided any evidence to
controvert Defendant’s assertions. Code
of Civil Procedure section 418.10 (e) allows a defendant to make a motion to
quash and simultaneously demur.
The
Court will consider Plaintiff’s opposition because Defendant has filed a reply,
addressing the issues on the merits.
Additionally, there is no evidence of prejudice.
As
to Plaintiff’s argument that Defendant made a general appearance, the Court
finds that he did not. Defendant made
this instant motion to quash prior to filing his demurrer which is permissible
under Code of Civil Procedure section 418.10 (e). Additionally, like in Air Machine,
where the defendants made a 998 settlement offer after filing their motion to
quash service of summons, here, Defendant also filed his demurrer on December
12, 2022, after filing this instant motion to quash on December 6, 2022. Air Machine shows that the sequence of
the filing dates governs whether a defendant’s act constitutes a general
appearance. Thus, it is immaterial that
Defendant filed his demurrer prior to the hearing for the motion to quash.
Therefore,
the Court finds that Defendant is entitled to an order quashing service of
summons.
VI. CONCLUSION
In light of the foregoing, the Court GRANTS Defendant’s
motion to quash service of summons.
Moving
party to give notice.
Parties who intend to submit on this tentative must send
an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit
on the tentative as directed by the instructions provided on the court’s
website at www.lacourt.org. Please be
advised that if you submit on the tentative and elect not to appear at the
hearing, the opposing party may nevertheless appear at the hearing and argue
the matter. Unless you receive a
submission from all other parties in the matter, you should assume that others
might appear at the hearing to argue. If
the Court does not receive emails from the parties indicating submission on
this tentative ruling and there are no appearances at the hearing, the Court
may, at its discretion, adopt the tentative as the final order or place the
motion off calendar.