Demurrer

Cal. Super. - 4th Dist.November 19, 2019

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RANDALL HOOK 6924 ADAMS AVE. LA MESA, CA 91942 Defendant, In Pro Per SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO DANIEL CORONA ) Case No. 37-2019-00061337-CU-UD-CTL ) Plaintiff(s), : ) NOTICE OF DEMURRER AND Vs. ) DEMURRER TO COMPLAINT; ) MEMORANDUM OF POINTS AND RANDALL HOOK and Does 1 to 10, AUTHORTLIES Inclusive ) ) Date: Match 20", 2020 Defendants(s) ) Time: 11:00 A.M. ) Dept: 69 ) ) ) ) TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on the date and time mention above or as soon as the matter can be heard, in the above entitled court, located at 330 W. Broadway, San Diego, CA 92101. Defendant, RANDALL HOOK will and here by moves the Court for an order sustaining a general, Demurrer to the Unlawful Detainer Complaint filed by Plaintiff without leave to amend. This Demurrer is made pursuant to Code of Civil Procedure §1170 and §430.10 on the grounds that Plaintiff does not have the legal capacity to sue, Plaintiff’s Complaint is uncertain and fails to state a cause of action in the Unlawful Detainer Complaint as Plaintiff must strictly comply with the notice a — NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 requirements in accordance with Code of Civil Procedure §1162 thus the Complaint is fatally defective and will not support an unlawful detainer action. Dated: December 18, 2019 RANDALL HOOK, In Pro Per a NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMURRER TO PLAINTIFF’S COMPLAINT Defendant, RANDALL HOOK pursuant to Code of Civil Procedure §1170 hereby generally demurs to the Unlawful Detainer Complaint filed by DANIEL CORONA (“Plaintiff”) on the following grounds; FIRST GROUND FOR DEMURRER Defendant generally demurrers to the Unlawful Detainer Complaint filed by Plaintiff on the] grounds that the Plaintiff does not have legal capacity to sue, Code of Civil Procedure § 430.10 (b). Defendant established a tenant-landlord relationship with the landlord and property owner TIM MARLOW. Defendant established this relationship due to the fact that Defendant paid and had constant contact with TIM MARLOW. Furthermore, Defendant’s sublease agreement with Plaintiff expired in| October of 2019. SECOND GROUND FOR DEMURRER Defendant generally demurrers to the Unlawful Detainer Complaint filed by Plaintiff on the] grounds that the pleading is uncertain. As used in Code of Civil Procedure § 430.10 (f), “uncertain” includes ambiguous and unintelligible. The Complaint fails to clarify the facts on which Plaintiff seeks to recover possession of the premises, due to the fact that the Complaint is based on an improper notice of termination of tenancy and consists of multiple errors on the face of the pleading, Code of Civil Procedure §1166 (2). THIRD GROUND FOR DEMURRER Defendants generally demur to the Unlawful Detainer Complaint filed by Plaintiff on the grounds that the thirty-day notice alleged in the Complaint was never served upon Defendant, as stated on Plaintiff’s Complaint, thus violating Code of Civil Procedure § 1162. Defendant’s last = 3 w= NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 known notice served to them by Plaintiff is a Notice of Termination of Tenancy served by Plaintiff via text message on September 6%, 2019. Dated: December 18, 2019 RANDALL HOOK, In Pro Per = f= NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER I. PRILIMINARY STATEMENT On 10/24/2018 Defendant RANDALL HOOK entered a written sublease agreement with] Plaintiff. A few days later Defendant was introduced to the property owner and landlord TIM MARLOW and was instructed to continue making the rent payments directly to TIM MARLOW. The property owner and landlord also told Defendant that he was ok with Defendant living at the premises and continued having communication with Defendant, thus nullifying the sublease with Plaintiff and| establishing a tenant-landlord relationship, further more Defendant’s sublease with Plaintiff expired in| October of 2019. Defendant was notified via text message On September 6, 2019 by Plaintiff that TIM MARLOW was no longer going to allow Defendant to continue renting the property. Defendant asked] TIM MARLOW if this was correct and TIM MARLOW denied such claim and continued accepting rent from Defendant. Thus, Plaintiff lacks the legal capacity to sue and Plaintiff’s Complaint is ambiguous, uncertain, and unintelligible. Furthermore, the Complaint incorporates by reference of aj thirty-day notice to quit that was never properly served on Defendant and the notice is improper as if falsely claims the property owner and landlord is terminating the tenancy, thus it is fatally defective] and will not support an unlawful detainer action. II. DEFENDANT’S DEMURRER IS PROPERLY BEFORE THE COURT California Code of Civil Procedure § 1170 states that a Defendant in an Unlawful Detainer action may Answer or Demur. Although dicta in Delta Imports v Municipal Court, 146 Cal. App.3d.1033 (1983) suggests that a motion to quash is the remedy where a Complaint fails to state a cause of action in an| Unlawful Detainer, Delta did not overrule prior cases. See Hinman v. Wagnon, 172 Cal. App. 2d 24 = 5 = NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (1959), where the court held that a demurrer was proper where the Complaint was defective on its face. The court sustained a dismissal following sustaining the demurer without leave to amend. The period for noticing the hearing on a Demurrer is not set forth in the Unlawful Detainer statutes, Sections 1159 through 1179a. However, Section 1177 provides that all provisions of law, contained in Part 2 of the Code of Civil Procedure (the ones applicable to regular civil actions) are otherwise generally applicable to Unlawful Detainer actions, unless other procedures are specified in the Unlawful Detainer statutes, Since the Unlawful Detainer statutes do not provide for the timing of a hearing on a Demurrer, the timing for Demurrers is governed by Code of Civil Procedure § 1005, which requires 16 Court days’ notice of the hearing on the demurrer, plus five calendar days for notice by mailing. Thus, this demurrer is properly before the Court and notice is proper. III. DEMURRER IS PROPER IN THIS CASE BECAUSE PLAINTIFF LACKS THE LEGAL CAPACITY TO SUE. Code of Civil Procedure § 430.10 provides, in pertinent part: “The party against whom a complaint or cross-complaint has been filed may object by demurrer . . . on any of the following grounds: (b) the person who filed the pleading does not have the legal capacity to sue. In this case, Plaintiff lacks standing to assert any claims against Defendant due to Plaintiff not being “the real party in interest” as stated in Code of Civil Procedure § 367, “Every action must be prosecuted in the name of the real party in interest.” "Interest" within the meaning of the rules means material interest, an interest in issue and to be affected by the decree as distinguished from mere interest in the question involved, or a mere incidental interest. A real party in interest is one who has a legal right. The action must be brought by the person who, by substantive law, possesses the right sought to be enforced. In an action for unlawful detainer, the real party in interest is the landlord, vendor, vendee or other person against whom the possession of any land or building is unlawfully withheld after the expiration] or termination of his right to hold possession, by virtue of a contract, express or implied. Plaintiff is not the legal owner of the property and is not receiving rent from Defendant, furthermore Plaintiff’s = 6B = NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sublease with defendant is expired. Thus, Plaintiff failed to present sufficient evidence showing that they are the landlords of the leased premises or its successors-in-interest or are authorized to institute the ejectment suit in the name of the real party in interest. IV. DEFENDANT’S DEMURRER IS PROPER BEFORE THE COURT DUE TO A DEFECTIVE THIRTY-DAY NOTICE, ATTACHED TO AND INCORPORATED AND ALLEGED IN AN UNLAWFUL DETAINER COMPLAINT RENDERS THE COMPLAINT GENERALLY DEMURRABLE Because the thirty-day notice alleged in the Complaint is defective, the Complaint is subject to a general demurrer on that basis. Code of Civil Procedure section 1170 allows a defendant appearing in an unlawful detainer action to either "answer or demur." The California Court of Appeal in Borsuk v. Appellate Division of Superior Court (2015) 242 Cal.App.4th 607, 617, fn. 7, made this point clear, indicating "[a] tenant may attack the legal sufficiency of an unlawful detainer complaint by demurrer or motion to strike, “depending on the defect attacked. [Citation.]" The period for noticing the hearing on a demurrer is not set forth in the unlawful detainer statutes, Sections 1159 through 1179a. However, Section 1177 provides that all provisions of law contained in Part 2 of the Code of Civil Procedure (the ones applicable to regular civil actions) are otherwise generally applicable to unlawful detainer actions, unless other procedures are specified in the unlawful detainer statutes. Since the unlawful detainer statutes do not provide for the timing of a hearing on a demurrer, the timing for demurrers is governed by Code of Civil Procedure § 1005, which requires 16 court days’ notice of the hearing on the demurrer, plus five calendar days for notice by mailing. Thus, this demurrer is properly before the Court and notice is proper. The information which states the reason for the notice is incorrect. Code of Civil Procedure section 1161, subdivision (1) states in pertinent part “in case of a tenancy at will, it must first be = T= NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 terminated by notice, as prescribed in the Civil Code”. Code of Civil Procedure section 1161 subdivision (3) clearly states after a neglect or failure to perform other conditions or covenants of the lease or agreement under which the property is held, including any covenant not to assign or sublet, the notice is required to have in writing the performance of such conditions or covenants. In this case Plaintiff is alleging TIM MARLOW is requesting Defendant to vacate, even though this claim is untrue, and Defendant not served a Notice to Quit by Plaintiff. Furthermore Plaintiff lacks the legal capacity to bring forward this action. V. THE COURT IS AUTHORIZED TO GRANT THIS DEMURRER ON THE GROUNDS THAT THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION FOR UNLAWFUL DETAINER IN THAT PLAINTIFF FAILED TO SERVE THE PURPORTED 30 DAY NOTICE IN COMPLIANCE WITH CIVIL CODE §§ 1946 and 1946.1. Defendant contends that the complaint fails to state a cause of action for unlawful detainer in that the complaint fails to allege that the purported 30 day notice was served in accordance with the provisions of Civil Code §§ 1946 and 1946.1 The notice herein required shall be given in the manner prescribed in Section 1162 of the Code of Civil Procedure or by sending a copy by certified or registered mail addressed to the other party. (Emphasis added).Civil Code § 1946.1(f) states that, “The notices required by this section shall be given in the manner prescribed in Section 1162 of the Code of Civil Procedure or by sending a copy by certified or registered mail.” Code of Civil Procedure § 1162 states in pertinent part that, “(a) Except as provided in subdivision (b), the notices required by Sections 1161 and 1161a may be served by any of the following methods: = 8 = NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (1) By delivering a copy to the tenant personally. (2) If he or she is absent from his or her place of residence, and from his or her usual place of business, by leaving a copy with some person of suitable age and discretion at either place, and sending a copy through the mail addressed to the tenant at his or her place of residence. (3) If such place of residence and business cannot be ascertained, or a person of suitable age or discretion there cannot be found, then by affixing a copy in a conspicuous place on the property, and also delivering a copy to a person there residing, if such person can be found; and also sending a copy through the mail addressed to the tenant at the place where the property is situated. Service upon a subtenant may be made in the same manner.” The complaint fails to allege that Plaintiff served the purported 30-day notice on Defendant in compliance with California law. The complaint contains no allegations or exhibits that state that Defendant was served with the purported 30 day notice by personal service or any method specified in Code of Civil Procedure § 1162. Therefore the complaint is deficient on its face. As a prerequisite to filing an unlawful detainer action, a tenant must be served with either a three, 30, or 90 days' notice, depending on the individual's status as a tenant. (Code Civ. Proc., §§ 1161, 1161a, 1161b.) Code of Civil Procedure section 1162[2] provides three methods of serving these notices: (1) by personal delivery to the tenant (personal service); (2) if the tenant is absent from his residence and usual place of business, by leaving a copy with a person of suitable age and discretion at either place, and sending a copy through the mail to the tenant's residence (substituted service); or (3) if a place of residence and usual place of business cannot be ascertained or a person of] suitable age or discretion cannot be found there, then by affixing a copy in a conspicuous place on the property and delivering a copy to a person residing there, if such a person can be found, and also sending a copy through the mail addressed to the tenant at the place where the property is situated = Go NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (post and mail service). A notice is valid and enforceable only if the lessor has strictly complied with these statutorily mandated requirements for service. The Bank of New York Mellon v. Preciado, (2013) 224 Cal. App. 4th Supp. 1, 6-7 (internal citations omitted). VI. THE COURT IS AUTHORIZED TO GRANT THIS DEMURRER ON THE GROUNDS THAT THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION FOR UNLAWFUL DETAINER IN THAT THE COMPLAINT IS UNCERTAIN. AS USED IN CODE OF CIVIL PROCEDURE § 430.10, “UNCERTAIN” INCLUDES AMBIGUOUS AND UNINTELLIGIBLE. Under Code of Civil Procedure § 430.10 a defendant in an unlawful detainer proceeding may answer or demur if pleading is uncertain. As used in Code of Civil Procedure § 430.10, “uncertain” includes ambiguous and unintelligible. The law in California is clear that if the breach alleged is nonperformance of conditions or covenants, the plaintiff must allege in the complaint the particular conditions or covenants, neglect or failure to perform, service of a 3-day notice requiring performance or possession, failure to perform within 3 days, and continued possession. See Code of Civil Procedure § 1161(3), see also McCarty v. Raso (1951) 102 Cal. App. 2d 909, 910. "A valid three-day pay rent or quit notice is a prerequisite to an unlawful detainer action. "strict compliance with the specifically prescribed notice conditions is a prerequisite to invoking the summary procedures of unlawful detainer." Parsons v. Superior Court (2007) 149 Cal.App.4th Supp. 1, 6. [Citations.] 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. = 1@ = NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [Citation.]" Bevill v. Zora, supra, 27 Cal. App.4th at p. 697. Plaintiff did not provide a valid notice to Defendant. Defendant contends that the complaint fails to state a cause of action for unlawful detainer in that the complaint fails to allege with clarity the particular conditions or covenants alleged to have been violated and is unclear who the actual person is legally allowed to bring forth this action. The failure of the pleading to state a cause of action results from the fact that the complaint appears deficient on the face of the pleading or from judicially noticed matter. Hall vs. Chamberlin, (1948) 31 Cal.2d 673, 679-680. If a defendant negates any essential element of a particular cause of action, a judge should sustain the demurrer as to that cause of action. See Cantu v. Resolution Trust Corp. (1992) 4 Cal. App. 4th 857, 880. Thus, the Court is authorized to grant this demurrer. The fact that plaintiff used a Judicial Council form complaint does not preclude moving defendant from filing a demurrer as a defendant may demur to a Judicial Council form complaint on the same grounds as any other complaint. To be “demurrer-proof,” a form complaint must state all facts essential to a cause of action under existing statutes or case law. See People ex rel Dep't of Transp. v. Superior Court (1992) 5 Cal. App. 4th 1480, 1484-1486. See also California Judges Benchguides: (Benchguide 31, 2015), Landlord-Tenant Litigation: Unlawful Detainer, §31.49, pg. 31-53. VII. BECAUSE UNLAWFUL DETAINERS ARE SUMMARY PROCEEDINGS SEEKING FORFEITURE, STRICT COMPLIANCE WITH ALL STATUTORY REQUIREMENTS MUST BE SHOWN = 171 = NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The rule of liberal construction of pleadings provided by Code of Civil Procedure §452 is not applicable in unlawful detainer actions. Because unlawful detainer is an action seeking forfeiture and is a summary proceeding in which the Defendant’s normal procedural rights are limited, the courts strictly construe the statutory procedures that regulate unlawful detainers and require strict compliance with all statutory requirements. See Civil Code §1442; see also Liebovich v. Shahrokhkany (1997) 56 Cal.App.4th 511, 513. Stating the required statutory information on the three-day notice is a prerequisite to an action in unlawful detainer. Because the thirty-day notice attached to the Complaint is clearly defective, this Court should sustain the demurrer. VIII. DEFENDANT’S DEMURRER SHOULD BE SUSTAINED WITHOUT LEAVE TO AMEND Defendant contends that the Court should sustain their general demurrer without leave to amend because of Plaintiff’s lack of standing in bringing forward an Unlawful Detainer action against Defendant, furthermore the 30-day notice is improper and it cannot be presumed that a new and proper notice will be served and that Defendant would fail to comply with a new notice. See Hinman v. Wagnon (1959) 172 Cal. App 2d 24, 27. When a demurrer is granted for a defect in required notice to terminate, the Complaint cannot be cured by amendment. Instead, the landlord must file a new Complaint, after giving the tenant new notice. . . This simply applies the general rule that a demurrer should be sustained without leave to amend ‘where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law.” Rutter Group Cal. Prac. Guide Landlord-Tenant Ch. 8-C, 8:238 (quoting Lawrence v. Bank of America (1985) 163 Cal. App. 3d 431, 436). = 12 = NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Also a new cause of action for unlawful detainer on the basis of a new notice would result in a new cause of action that arose after the Complaint was filed, this is not proper in an Amended Complaint, only a Supplemental Complaint. Generally, a Plaintiff “may be allowed, on motion, to make a supplemental Complaint . . . alleging facts material to the case occurring after the former Complaint.” See Code of Civil Procedure § 464. “Matters which occur after the filing of a Complaint may not be alleged by amendment to the Complaint, but must be brought into the action by means of a supplemental Complaint.” Hebert v. Los Angeles Raiders, Ltd. (1991) 23 Cal.App.4th 414, 426. A Plaintiff seeking to avoid the sustaining of a demurrer without leave to amend to a Complaint for a defect in pleading must show in what manner he can amend his Complaint and how that amendment will change the effect of his pleading. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; see also Hendy v. Losse (1991) 54 Cal.3d 723, 742. The Plaintiff has the burden of proving that an amendment would cure the defect. Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081. The burden of proving such reasonable possibility is squarely on the Plaintiff." Maxton v. Western States Metals (2012) 203 Cal. App.4th 81, 95. To satisfy this burden, "a Plaintiff "must show in what manner he can amend his Complaint and how that amendment will change the legal mn effect of his pleading" by clearly stating not only the legal basis for the amendment, but also the factual allegations to sufficiently state a cause of action. (Ibid.) CONCLUSION = 18 = NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Based on the foregoing facts, arguments, and points of law, the Court is urged to sustain Defendant’s general demurrer to the Unlawful Detainer Complaint filed by Plaintiff without leave to amend, and that Defendant obtains Judgment against Plaintiff for costs, and if applicable, attorney fees. Dated: December 18, 2019 ~ RANDALL HOOK, In Pro Per - 14 - NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am over the age of 18 and not a party to this action. I am a resident of or employed in the county where the mailing occurred; my business/residence address is: 4486 F St., San Diego, CA 92102. On December 18, 2019, I served the foregoing document(s) described as: NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES to the following parties: DANIEL CORONA 6924 ADAMS AVE. LA MESA, CA 91942 [x] (By U.S. Mail) I deposited such envelope in the mail at San Diego, California with postage thereon fully prepaid. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [] (By Personal Service) I caused such envelope to be delivered by hand via messenger service to the address above; [] (By Facsimile) I served a true and correct copy by facsimile during regular business hours to the number(s) listed above. Said transmission was reported complete and without error. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. DATED: 12/18/2019 KASSANDRA BERKLEY = 15 = NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT