Case Number: BC695255 Hearing Date: March 28, 2018 Dept: 53

farmand property, llc vs. mindset box llc , et al.; BC695255, March 28, 2018

[Tentative] Order RE: DEFENDANT MINDSET BOX LLC’S DEMURRER TO THE COMPLAINT

Defendant MINDSET BOX LLC’s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

BACKGROUND

Plaintiff Farmand Property LLC (“Plaintiff”) filed this unlawful detainer action on February 23, 2018 against Defendant Mindset Box LLC (“Defendant”). In Plaintiff’s verified complaint, Plaintiff alleges that Defendant breached a written lease agreement by failing to pay rent when due (“Complaint”).

Section 21-2 of the lease agreement states that “[n]o act by Landlord other than giving Notice to Tenant shall terminate this Lease.” (Compl., Ex. 1.) Section 20-2 of the lease agreement provides the manner in which notice of default must be given: “Notices given under this Article 20 shall specify the alleged default and the applicable Lease provisions, and shall demand that Tenant perform the provisions of this Lease within the applicable period of time, or quit the Premises.” (Compl., Ex. 1.)

Plaintiff alleges that the notice attached as Exhibit 2 to the Complaint is the notice of default that was provided to Defendant to initiate the eviction process. (Compl., ¶ 7(e).) The 3-Day Notice to Pay Rent or Quit attached as Exhibit 2 to the Complaint provides that “…pursuant to the Standard Form Shopping Center Lease dated December 4, 2014, between Farmand Property LLC (“Landlord”), on the one hand, and Mindset Box LLC (“Tenant”), on the other hand (“the Lease”) … there is now due, unpaid, and delinquent minimum rent.” (“Compl., Ex. 2.)

Defendant now demurs to the Complaint on the grounds that the notice of default fails to comply with the notice provisions set forth in the lease agreement. Plaintiff opposes.

DISCUSSION

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.)

Defendant contends that the notice of default does not comply with Section 20-2 of the lease agreement because it only specifies the alleged default (failure to pay rent) but does not specify the “applicable Lease provisions.” The notice of default merely references the Lease generally. Plaintiff argues, in opposition, that the notice of default provides that “minimum rent” is due, and because Article 4 of the lease agreement is entitled “Minimum Rent,” it is “explicitly clear” that the notice of default is referencing that provision. (Opp’n, p. 4: 10-16.)

Plaintiff further argues that strict compliance with the notice provisions of the lease agreement is an issue of fact that should not be decided on demurrer. The Court disagrees. In order to survive a demurrer, Plaintiff’s Complaint needs to allege facts sufficient to state a cause of action. An unlawful detainer cause of action requires pleading (and eventually proving) that notice of default was properly served. (See Code Civ. Proc., §§ 1161, 1162.) “In commercial leases the landlord and commercial tenant may lawfully agree to notice procedures that differ from those provided in the statutory provisions governing unlawful detainer.” (Culver Center Partners East No. 1, L.P. v. Baja Fresh Westlake Village, Inc. (2010) 185 Cal.App.4th 744, 750.) When the notice procedures are not in strict compliance with the parties’ agreement, access to the summary remedy of unlawful detainer is precluded. (See ibid. at p. 752.) Therefore, because the notice of default is not in strict compliance with the lease agreement (i.e., the notice of default does not specify the applicable lease provisions), the demurrer is sustained.

WITH OR WITHOUT LEAVE TO AMEND

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) Here, the Court does not find a reasonable possibility of successful amendment, as the defect with the notice of default cannot be cured retroactively. Therefore, leave to amend is denied.

CONCLUSION

Based on the foregoing, Defendant’s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendant is ordered to provide notice of this ruling.

DATED: March 28, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court