Case Number: 17CMUD01024 Hearing Date: March 23, 2018 Dept: A

# 12. Vera Saville v. Raul Saville

Case No.: 17CMUD01024

Matter on calendar for: Hearing on demurer to First Amended Complaint

Tentative ruling:

I. Background

In this Unlawful Detainer case, self-represented Defendant Raul Saville demurs to Plaintiff Vera Saville’s First Amended Complaint (“FAC”). (Technically, Raul demurs to the “Complaint,” but the substance of the demurrer elucidates that Defendant demurs to the FAC.) The demurrer is unopposed.

The First Amended Complaint states:

· Vera is the owner of the premises;

· Raul is in possession of the premises via tenancy at will;

· There is no written lease agreement;

· Raul’s tenancy “began when Plaintiff allowed Defendant to reside at the premises for an indefinite period of time…”

· Vera caused a 30-Day Notice to be served on Raul on October 20, 2017;

· The Notice included an election of forfeiture;

· Raul failed to comply with the Notice on November 20, 2017;

· Raul continues in possession of the premises without permission or consent; and

· The fair daily rental value of the premises is $90.

(FAC, ¶¶ 7-15.)

The Court sustained Raul’s demurrer to the original Complaint with leave to amend because:

The Complaint is uncertain because it fails to specify the nature and terms of the parties’ rental agreement. How was the alleged tenancy at will created? What were its terms? A demurrer may be based on CCP § 430.10, which states: “In an action founded upon a contract, it cannot be ascertained whether the contract is written, is oral, or is implied by conduct.” Even a tenancy at will is contractual in nature. Further: CCP § 1166(a)(2) obligates a UD Complaint to “set forth the facts on which the plaintiff seeks to recover.” Vera must set forth facts demonstrating the nature and terms of the parties’ rental agreement. Merely alleging that the fair daily rental value of the premises is $90 is insufficient.

(January 19, 2018 Minute Order.)

II. Standard

Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (CCP § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) In ruling on a demurrer, the Court shall accept all material allegations in the Complaint as true. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) A plaintiff must allege the “essential facts… with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) The Court makes no factual findings on demurrer. (Id.)

III. Analysis

Raul argues the Complaint is uncertain because (1) Vera fails to allege when Raul’s tenancy began; (2) the 30-Day Notice names Raul a “tenant” while the FAC alleges he was a tenant at will; (3) the 30-Day Notice “has language complying with Civil Code § 1946.1;” and (4) Plaintiff fails to request forfeiture of the agreement.

Not only is the demurrer unopposed, but Vera’s counsel’s failed ex parte application to be relieved as counsel included her counsel’s declaration, signed under penalty of perjury, stating that Vera wrote counsel “a letter… stating she no longer wants our office to take further action…” (March 16, 2018 Ex Parte Application, Silverstein Decl., ¶ 3.) The Court will inquire whether Vera has abandoned this case.

Regardless, the FAC remains uncertain. CCP § 1166(a)(2) obligates a UD Complaint to “set forth the facts on which the plaintiff seeks to recover.” On January 19, 2018, the Court asked: “How was the alleged tenancy at will created? What were its terms? … Vera must set forth facts demonstrating the nature and terms of the parties’ rental agreement.” (January 19, 2018 Minute Order.) These questions remain unanswered. Adding that “[t]here is no written lease agreement” along with “[Raul’s] tenancy [at will] began when Plaintiff allowed Defendant to reside at the Premises for an indefinite period” does not establish the nature and terms of the parties’ rental agreement, if any. “Defendant is in possession… by reason of a tenancy at will” is a legal conclusion, not a fact. (FAC, ¶ 10.)

The Court sustains the demurrer with five days’ leave to amend. The Court affords Vera one more chance to present a viable pleading.