Case Number: EC064624??? Hearing Date: April 29, 2016??? Dept: A
Bischop v Bischop
DEMURRER
Calendar: 11
Case No: EC064624
Date: 4/26/16
MP: Defendants, Frank Bishop and Jeannette Fack
RP: Plaintiffs, Cindy Bishop and Marilyn Bingeli
ALLEGATIONS IN COMPLAINT:
The Defendant is unlawfully detaining the Plaintiffs? property because the Defendant has failed to pay rent or quit the premises after the Plaintiffs served a notice to pay rent or quit.
CAUSES OF ACTION IN COMPLAINT:
1) Unlawful Detainer
RELIEF REQUESTED:
Demurrer to Complaint.
DISCUSSION:
This hearing concerns the demurrer of the Defendants, Frank Bischop and Jeannette Fack to the Complaint.
This is Frank Bischop?s second demurrer to the original Complaint. The Court overruled his first demurrer on March 4, 2016. Since this is Frank Bischop?s second motion for the same relief, he was required to comply with CCP section 1008(b), which identifies the procedures for filing successive matter to obtain the same relief, e.g., the motion to renew the prior motion must be accompanied by facts identifying a new fact, statute of law. Frank Bischop?s demurrer does not comply with these requirements. This is the first ground to overrule his second demurrer to the original Complaint.
Further, the Defendants did not file a proof of service with their demurrer, as required by CRC rule 3.1300. Since all moving papers must be served and filed in accordance with CCP section 1005(b), i.e., the Defendants were required to provide at least 16 Court day notice of this hearing and his motion to the Plaintiffs, the Defendants has not provided evidence to show that they complied with this requirement. The lack of evidence that the Defendants provided notice of this hearing and motion to the Plaintiff is the second ground to overrule the demurrer.
Further, the Defendants? memorandum does not identify any grounds for a demurrer. For the purposes of ruling on a demurrer the Plaintiff’s allegations are assumed true and the Plaintiff’s ability to prove the allegation is of no concern for the purposes of ruling on the demurrer. Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.
The Defendants argue that the Complaint was not verified. A review of the Complaint reveals that it was verified by both Plaintiffs. Accordingly, this is not grounds for a demurrer.
The Defendants argue that the Plaintiffs? three-day notice does not identify the amount due. A review of the Complaint reveals that it alleges in paragraphs 16 and 17 that the three-day notice is in untabbed exhibit B. A review of the three-day notice reveals that it states that the rent due is $27,600. This is the third ground to overrule the demurrer.
Therefore, the Court will overrule the Defendants? demurrer.
RULING:
Overrule demurrer.