18-UDL-00904 CHARLENE FIETTA, ET AL. VS. DAVID GEHRE, ET AL.

CHARLENE FIETTA DAVID GEHRE
MICHAEL BITONDO WILLIAM E. GILG

DEMURRER TO UNLAWFUL DETAINER COMPLAINT BY DAVID GEHRE AND ROBERTA GEHRE TENTATIVE RULING:

The Demurrer is sustained with leave to amend.

A. Plaintiff Dito Fails to Allege Standing.

Plaintiff Jenny Dito argues that she may bring this action in her own name as agent for landlord Charlene Fietta as “a person with whom, or in whose name, a contract is made for the benefit of another.” (Code of Civ. Proc. §369, subd. (a)(4).) Plaintiff Dito did not enter into the lease on the landlord’s behalf. The lease was entered into by Charlene Fietta. (See Lease, Exhibit 1 to Complaint (identifying “Charlene Fietta” as “landlord” and the contracting party. See also Lease at p.6, ¶49 (signature of Charlene Fietta).) Since Fietta entered into the lease in her own name, Section 369(a)(4) does not allow Fietta’s agent to bring an unlawful detainer action in the agent’s name. Further, the Complaint contains no allegation that Fietta assigned the right to possession or the cause of action to Dito. The Court notes that the Complaint ambiguously identifies Plaintiffs as: “Charlene Fietta, Jenny Dito, Agent.” (Complaint ¶1.) Charlene Fietta is properly identified as Plaintiff. However, the Complaint was filed “in pro per,” but signed only by Jenny Dito, who is not an attorney. Therefore, to the extent that Charlene Fietta claims to be a plaintiff, the Complaint fails to comply with Code of Civil Procedure §128.7, subdivision (a), which requires a complaint to be signed by an attorney of record or, if none, the party.

The Court strikes the Complaint to the extent it is brought on behalf of Charlene Fietta. (See Code of Civ. Proc. §436, subd. (b) (court may strike any pleading “not . . . filed in conformity with the laws of this state”).

B. The 3-Day Notice Is Not Deficient.

The 3-Day Notice contains all of the information that is required of a 3-day Notice for residential property pursuant to statute: default in payment of rent; notice requiring payment of rent; the amount due; the name, phone number and address of the person to whom rent shall be paid; and the usual days and hours that person will be available to receive payment. (Code of Civ. Proc. §1161(2).)

The reference to §1161.1 (commercial property) is inapplicable and therefore without legal effect. Despite erroneously citing §1161.1, the Notice does not contain any demands or requirements of §1161.1 that might be inconsistent with a 3-day notice for residential property. The 3-Day Notice is not deficient.

C. Conclusion.

The Court strikes the Complaint to the extent it is brought in the name of Charlene Fietta.

Demurrer to the Complaint of Jenny Dito is SUSTAINED.

The Court grants leave of Court until November 7, 2018 for Plaintiff Dito or Plaintiff Fietta to file and serve a first amended complaint.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10. If the tentative ruling is uncontested, DEMURRING PARTY is directed to prepare, circulate and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312. The proposed order is to be submitted directly to Judge Susan L. Greenberg, Department 3.