Rancho Las Cruces LLC vs Robert Allen Ramirez
Case No: 17CV05747
Hearing Date: Fri May 25, 2018 9:30

Nature of Proceedings: Demurrer and Motion to Quash

Tentative Ruling: The court grants defendant Robert Allen Ramirez’s motion to quash service of the five-day summons and sustains defendant’s demurrer to plaintiff Rancho Las Cruces, LLC’s first amended complaint for forcible entry, without leave to amend. This action is without prejudice to commencing a new action with a 30-day summons.

Background: On December 20, 2017, plaintiff Rancho Las Cruces, LLC, filed a complaint in unlawful detainer. Defendant Robert Allen Ramirez filed a demurrer and motion to quash service of summons. The court sustained the demurrer with leave to amend.

On April 2, 2018, plaintiff filed its Verified First Amended Complaint for Forcible Entry (“FAC”) alleging: On April 20, 2017, plaintiff was entitled to possession of real property described as APN 081-080-021 at Gaviota in Santa Barbara County (“the real property”). [FAC ¶1] On April 20, 2017, defendant entered and took possession of the real property; he has by force moved his personal property onto the real property so as to exclude plaintiff from ownership and control of the property; and he destroyed the dwelling house on the real property, including the breaking of doors, windows, and other portions of the dwelling house, in violation of zoning laws and without a required permit. [FAC ¶2]

On November 7, 2017, plaintiff made demand on defendant to surrender possession of the real property. Defendant refused and continues to refuse to surrender possession. [FAC ¶2]

Defendant damaged and devalued the real property because of the demolition of the dwelling unit. Defendant acted in a malicious and calculated manner to seek to extort a right to occupancy from plaintiff without any legal claim or right to commit waste. Plaintiff seeks treble damages for waste. Defendant’s acts were not done in good faith belief that he had any present possessory interest in the premises or right to occupancy, legal control, or use of the real property. The removal of the dwelling, now reduced to debris, from the premises is a violation of CCP § 1159(1) by breaking up the house and hauling it away for disposal as refuse. [FAC ¶3]

Plaintiff prays for restitution of the real property; damages; treble damages for waste; removal of defendant’s personal property; and costs of suit.

Motion/Demurrer: Defendant moves to quash service of summons and demurs to the FAC. Plaintiff opposes the motion/demurrer.

In this case, defendant received a summons giving notice of five days to file a responsive pleading. “A summons must contain a direction that the defendant file a responsive pleading within 30 days unless some specific statute modifies the time for response.” (Greene v. Mun. Court, 51 Cal.App.3d 446, 451 (1975); CCP § 412.20(a)(3).) Otherwise the summons is fatally defective. (Id.) CCP § 1167 authorizes a five-day summons. The issue defendant raises in the motion/demurrer is whether the five-day summons was authorized, i.e., whether plaintiff states a cause of action for forcible entry under CCP § 1159.

The court discussed this issue at some length in granting the motion and sustaining the demurrer to the original complaint. CCP § 1159 reads, in pertinent part: “Every person is guilty of a forcible entry who either: 1. By breaking open doors, windows, or other parts of a house, or by any kind of violence or circumstance of terror enters upon or into any real property; or, 2. Who, after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession.”

Plaintiff alleges that defendant entered and took possession of the property; has kept and still holds possession unlawfully; and “has by force moved his personal property onto the real property so as to occupy said premises and exclude Plaintiff from the ownership and control of the real property.” [FAC ¶2, p. 2:1-9] Plaintiff then adds: “Defendant’s wrongful acts include the breaking of doors, windows, and other portions of the dwelling house by use of heavy equipment and the removal of the prior legal non-conforming dwelling house constructed in the 1940’s in violation of Santa Barbara County Code and Inland Zoning Ordinance Article III of Chapter §35-313.2 for Zoning Clearance, and §35-314.2 for Land Use Permits.” [FAC ¶2, p. 2:1-9]

While plaintiff alleges that defendant broke doors, windows, and other parts of a dwelling after gaining entry to the real property, plaintiff does not allege the defendant thereby entered upon the real property. By destroying the entire residence, defendant necessarily did not gain entry thereto. Where the entry is not accompanied by any kind of violence or circumstance of terror, there is no forcible entry. Edwards v. Bodkin, 43 Cal.App. 405, 406 (1919).

Under the second subdivision of CCP § 1159, “a forcible entry is completed if, after a peaceable entry, the occupant is excluded from possession by force or threats of violence.” Jordan v. Talbot, 55 Cal. 2d 597, 607 (1961). Despite being given a second chance to do so, plaintiff has not alleged that it was excluded from possession, only “ownership and control.” And Plaintiff does not allege exclusion from possession, ownership, or control by force or threat of violence.

Plaintiff has not stated a cause of action for forcible entry. Plaintiff may well have an action for trespass, ejectment, quiet title, or waste. But those are not summary proceedings that support a five-day summons.

The court grants defendant Robert Allen Ramirez’s motion to quash service of the five-day summons and sustains defendant’s demurrer to plaintiff Rancho Las Cruces, LLC’s first amended complaint for forcible entry, without leave to amend. This action is without prejudice to commencing a new action with a 30-day summons.

On May 10, 2018, plaintiff filed a “Separate Request for Ruling Based on Allegation of Ownership in a Pending Probate Case as a Threshold Matter Under California Rules of Court 3.300(i).” The ruling above renders that request moot.