Demurrer (Judge Randolph Rogers)


Case Number: 16UA0515??? Hearing Date: April 28, 2016??? Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES ? NORTH DISTRICT

SFR 2012-1 U.S. WEST, LLC, )
) Case Number 16UA0515
Plaintiff, )
) ORDER AFTER HEARING
V )
) Date of Hearing:
ARDELLA BERRY, et al., ) April 28, 2016
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

The demurrer of Defendant Ardella Berry came on for hearing on April 28, 2016. Plaintiff SFR 2012-1 U.S. West LLC, appeared through its counsel of record, ________________. Defendant Ardella Berry appeared through her counsel of record, ________________.

The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, hereby ORDERS:

The demurrer of Defendant is OVERRULED as frivolous. Defendant Ardella Berry is ordered to file her Answer only on or before May 6, 2016.

SO ORDERED this the _____ day of April, 2016.

______________________
RANDOLPH ROGERS,
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES ? NORTH DISTRICT

SFR 2012-1 U.S. WEST, LLC, )
) Case Number 16UA0515
Plaintiff, )
) STATEMENT OF DECISION
V )
) Date of Hearing:
ARDELLA BERRY, et al., ) April 28, 2016
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. The present case arises out of an unlawful detainer action filed by Plaintiff SFR 2012-1 US West LLC (?Plaintiff?) against Defendants Ardella Berry (?Ardella?), Terrance Berry (?Terrance?), and Jonathan Berry (?Jonathan?). Plaintiff and Defendants entered into a residential lease on August 1, 2015. Defendants failed to pay rent for the month of March, 2016, prompting Plaintiff to serve a 3-day notice to pay rent or quit on March 7, 2016. Defendants failed to do either, causing Plaintiff to file suit for unlawful detainer on March 22, 2016.

2. On April 5, 2016, Ardella sought and obtained a fee waiver, waiving, among other things, Ardella?s first appearance fee and permitting her to file a demurrer set for hearing on April 28, 2016. Ardella asserts in her demurrer that the Complaint fails because the 3-day notice served on her failed to provide in the alternative that she could pay the delinquent rent to avoid eviction.

3. On April 21, 2016, Plaintiff untimely filed its Opposition to the demurrer. Due to Plaintiff?s failure to comply with CCP ?1005(b), the Opposition is not considered.

4. Discussion ? The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. Cal. Code Civ. Proc. ? 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action ? i.e., if the complaint pleads facts that would entitle the plaintiff to relief. Limandri v. Judkins (1997) 52 Cal.App.4th 326, 339.

5. A general demurrer admits the truth of all factual, material allegations properly pleaded in the challenged pleading, regardless of possible difficulties of proof. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Thus, no matter how unlikely or improbable, plaintiff?s allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709. A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.

6. Pursuant to Cal. Code Civ. Proc. ?? 430.10(e) and (f), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. Schifando v. City of Los Angeles (2001) 31 Cal.4th 1074, 1082. The burden is on the plaintiff to demonstrate how the complaint can be amended to state a valid cause of action. Id.

7. Ardella?s contention that the 3-day notice served on her failed to provide her with an alternative for stopping legal proceedings fails on its face. The 3-day notice attached to the Complaint plainly states that it is a notice to ?PAY RENT OR QUIT.? Complaint, Exhibit 2 (emphasis added). The body of the notice further requires her to ?pay the delinquent rent . . . or . . . deliver up possession? within three days. Id. As such, the face of the notice manifestly informed Ardella of her alternatives as required under CCP ?1161(2).

8. Accordingly, Defendant Ardella Berry?s demurrer is OVERRULED as frivolous. Defendant is ordered to file her Answer only on or before May 6, 2016.

SO ORDERED AND ADJUDGED this the ______ day of April, 2016.

_____________________________
RANDOLPH A. ROGERS, JUDGE