18-UDL-00657 DAVID CLINTON THORNTON VS. RACHELLE IMUS, ET AL

DAVID CLINTON THORNTON RACHELLE IMUS
MICHELLE LEU ZACCONE

HEARING ON DEMURRER TENTATIVE RULING:

The demurrer is OVERRULED. Defendant shall file an answer to the complaint by August 20, 2018.

CCP §1160(2) states that every person is guilty of forcible detainer who, in the night-time, or during the absence of the occupant of any real lands, unlawfully enters upon real property and who, after demand made for the surrender thereof, for the period of five days, refused to surrender the same to such former occupant. CCP §1172 further states that on the trial of any proceeding for any forcible detainer, the plaintiff shall only be required to show, in addition to the forcible detainer complained of, that he was peaceably in actual possession at the time of the forcible entry or was entitled to possession at the time of the forcible detainer.

Here, the complaint alleges the following: 1) the shed is not a legal dwelling 2) defendants entry and possession of the shed was without plaintiff’s permission or consent 3) defendants gained access through plaintiff’s tenant who had permission to use it for storage only 4) plaintiff demand that defendants cease occupying the shed as a dwelling and that they surrender possession, to no avail 5) defendants were served with a written five-day notice to quit on June 27, 2018 and 6) the period in the notice expired on July 2, 2018 and defendants remain in possession of the shed. These facts are sufficient to state a valid cause of action against defendants. None of the grounds stated by defendants in the demurrer establishes that the complaint fails to state a claim for forcible detainer. Defendants also incorrectly assert that the complaint is not verified and that plaintiff cannot initiate this action by use of a five-day notice. The complaint is verified and CCP §1160(2) requires a fiveday notice. Use of a five-day summons is also proper. CCP §1167.