GOVIND VAGHASHIA, ET AL. VS RAKESH KOTHARI

Tentative Rulings

Case Number: *******0872 Hearing Date: December 10, 2021 Dept: A

Motion to Strike

ALLEGATIONS:

Plaintiffs Vaghashia Family Limited Partnership and Govind Vaghashia ("Plaintiffs") filed an unlawful detainer action against Defendant Rakesh Kothari ("Defendant") on September 28, 2021 on the basis of a 60-day notice to quit.

PRESENTATION:

The Court received the Motion to Strike filed by Defendant on November 22, 2021; the opposition field by Plaintiffs on December 06, 2021; and the reply filed by Defendant on December 08, 2021.

RELIEF REQUESTED:

Defendant moves to strike the operative Complaint.

DISCUSSION:

Standard of Review – Motion to Strike – Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See Code Civ. Proc., ;; 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (Code Civ. Proc., ; 436, subd. (a).) In granting a motion to strike made under CCP ; 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., ; 436, subd. (a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (Code Civ. Proc., ; 431.10.) The court may also “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., ; 436, subd. (b).)

Merits – Defendant argues that Plaintiffs failed to serve the 60 Days\' Notice to Quit in compliance with Civil Code ; 1946.1(h). In opposition, Plaintiffs argue that Defendant fails to demonstrate any merits; that Civil Code ; 1946.1 applies only to leases of unspecified term; and that Plaintiffs were not required to give notice prior to initiating unlawful detainer proceedings pursuant to CCP ; 1161(1) (mistakenly cited as Civil Code ; 1161(1).

Civil Code ; 1946.1 provides in pertinent part:

(a) Notwithstanding Section 1946, a hiring of residential real property for a term not specified by the parties, is deemed to be renewed as stated in Section 1945, at the end of the term implied by law unless one of the parties gives written notice to the other of his or her intention to terminate the tenancy, as provided in this section.

. . .

(h) Any notice given by an owner pursuant to this section shall contain, in substantially the same form, the following:

“State law permits former tenants to reclaim abandoned personal property left at the former address of the tenant, subject to certain conditions. You may or may not be able to reclaim property without incurring additional costs, depending on the cost of storing the property and the length of time before it is reclaimed. In general, these costs will be lower the sooner you contact your former landlord after being notified that property belonging to you was left behind after you moved out.”

(Civ. Code, ; 1946.1.)

Upon review of the Complaint, the Court cannot locate any allegation that the alleged oral agreement between the parties was made on a fixed term. The Complaint only alleges that the tenancy was rented out as compensation, that Defendant was terminated on March 08, 2018, and that Defendant has been holding the property over since that date. (Complaint, ¶¶ 6(a)(1), 6(b), 6(d).) On the basis of these allegations, the Court can only conclude that the agreement was made on an unspecified term. Plaintiffs were thus required to serve Defendant with a 60-day Notice to Quit in compliance with Civil Code ; 1946.1(h). A review of Exhibit 2, attached to the Complaint, and represented as the operative 60-day Notice to Quit, shows that the notice is not in compliance as it does not contain the mandatory language. The failure to include this language thus affects the validity of the notice to terminate. The Court will not address Plaintiffs\' citation to CCP ; 1161(1), as the statute was repealed.

The Court will thus grant the motion to strike. There can be no leave to amend as the notice is defective.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Rakesh Kothari\'s Motion to Strike came on regularly for hearing on December 10, 2021, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO STRIKE IS GRANTED.

DATE: _______________ _______________________________

JUDGE