Joseph T Jasinski, III et al vs Ryan D Perry et al
Case No: 19CV04375
Hearing Date: Fri Sep 27, 2019 9:30
Nature of Proceedings: Demurrer to Complaint
TENTATIVE RULING:
For the reasons set forth herein, the demurrer of defendant Ryan D. Perry to the complaint is overruled. Perry shall file and serve his answer to the complaint on or before October 2, 2019.
Background:
On August 19, 2019, plaintiffs Joseph T. Jasinski, III, Michael Maclear, and Licia L. Maclear filed their complaint asserting one cause of action for unlawful detainer against defendant Ryan D. Perry.
Plaintiffs allege that Perry entered into a written rental agreement for a month-to-month tenancy commencing January 1, 2019, for real property located at 636 West De La Guerra Street, Santa Barbara (the Premises). (Complaint, ¶¶ 1, 5 & exhibit A.) Under the terms of the agreement, Perry would pay $2,295.00 per month payable in advance on the first day of each calendar month, with a $100 discount for rent if paid on the first day of the month. (Complaint, ¶ 7.) Perry did not pay rental installments due for August 2019 ($2,195.00) and there is a balance of $132.00 due for July 2019. (Complaint, ¶ 8.) Plaintiffs served on Perry a three-day notice stating these amounts due. (Complaint ¶ 9 & exhibit B.) More than three days elapsed and the amounts remained unpaid with Perry still in possession of the Premises. (Complaint, ¶¶ 10-12.)
Perry now demurs to the complaint. Perry argues that the three-day notice is defective because it overstates the amount due by improperly including uncertain bank fees and late fees and does not include a partial payment. The three-day notice was served after Jasinski refused to accept August’s rent payment.
The demurrer is opposed by plaintiffs.
Analysis:
“ ‘The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’ ” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370, internal quotation marks and citations omitted.)
Perry argues that the three-day notice is defective because it overstates the amount due. Perry bases this argument on exhibits attached to the demurrer. However, the court cannot consider evidence in ruling on a demurrer. “A demurrer tests the pleading alone, and not the evidence or the facts alleged. Thus, a demurrer will be sustained only where the pleading is defective on its face.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) The three-day notice is clear in demanding payment of specific amounts for specific periods of time. Thus, the three-day notice is not defective on its face. In order to show that the three-day notice is defective, the court would have to consider evidence from Perry and from plaintiffs in order to determine whether the amount alleged as due and asserted in the three-day notice is correct. The court cannot weigh evidence on demurrer.
Accordingly, the demurrer to the complaint will be overruled. Whether the three-day notice is or is not actually defective is an issue that may be determined at trial.