CLAUDIO S. NICOLOSI VS. CHRISTINA NICOLOSI, ET AL

07/02/2026 – Law and Motion Calendar Judge Mark A. McCannon – Department 2 Page 22 of 25

2:00 PM LINE: 1 26-UDL-00477 CLAUDIO S. NICOLOSI VS. CHRISTINA NICOLOSI, ET AL

CLAUDIO S. NICOLOSI STEVEN T. NAUMCHIK CHRISTINA NICOLOSI PRO SE

DEFENDANT CHRISTINA NICOLOSI'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

TENTATIVE RULING:

Defendant Christina Nicolosi’s demurrer to Plaintiff Claudio S. Nicolosi’s First Amended Complaint (“FAC”) is OVERRULED. Defendant’s motion to strike is DENIED.

BACKGROUND

This is an unlawful detainer action involving the real property located at 708 Prescott Lane, Foster City, California 94404, San Mateo County (the “subject property”). Plaintiff alleges that he owns the subject property. (FAC, ¶ II.)

Plaintiff alleges that, on September 1, 2016, he gave Defendants permission to occupy the subject property. Plaintiff further alleges that, on February 13, 2026, he served Defendants with written notice terminating their tenancy and/or permission to occupy the subject property and requiring Defendants to deliver possession on or before April 14, 2026. (FAC, ¶ V, Ex. A.) Defendants did not vacate, and this action followed.

Defendant demurs under Code of Civil Procedure section 430.10, subdivisions (e) and (f), contending the FAC does not allege facts sufficient to state an unlawful detainer claim and is uncertain. Defendant also moves to strike the FAC, contending it is a sham pleading, is improperly verified, and improperly seeks daily holdover damages. Plaintiff opposes, contending the FAC adequately pleads unlawful detainer, is not uncertain, was properly amended and verified, and sufficiently alleges fair market rental value and damages.

LEGAL STANDARD

A demurrer tests the legal sufficiency of the pleading, not the truth of the pleaded facts or the plaintiff’s ability to prove them. The Court considers only defects appearing on the face of the pleading or from matters that may be judicially noticed. (Code Civ. Proc., §§ 430.10, subd. (e), 430.30, 430.70.) A general demurrer admits the truth of all material factual allegations properly pleaded, but the Court does not assume the truth of contentions, deductions, or conclusions of law. (John’s Grill, Inc. v. The Hartford Financial Services Group, Inc. (2024) 16 Cal.5th 1003, 1013; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

A special demurrer for uncertainty is disfavored and is strictly construed, even where a pleading is uncertain in some respects, because ambiguities can generally be clarified through discovery. A demurrer for uncertainty is properly sustained only when the pleading is so unintelligible that the responding party cannot reasonably determine what must be admitted or denied. (Code Civ. Proc., § 430.10, subd. (f); Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

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An unlawful detainer complaint must be verified, set forth the facts on which the plaintiff seeks to recover, describe the premises with reasonable certainty, and state the method used to serve the notice of termination on which the complaint is based. (Code Civ. Proc., § 1166, subd. (a)(1)-(3), (5).) In a residential unlawful detainer action, the plaintiff must attach the notice or notices of termination on which the complaint is based and any written lease or rental agreement, unless a statutory exception applies. (Id., subd. (d)(1).)

A tenant of real property for a term less than life is guilty of unlawful detainer when the tenant continues in possession after expiration of the term for which the property is let, without the landlord’s permission, after the tenancy has been terminated as required by law. (Code Civ. Proc., § 1161, subd. 1.)

On a motion to strike, the Court may strike any irrelevant, false, or improper matter inserted in a pleading, or any pleading not drawn or filed in conformity with California law, a court rule, or an order of the Court. (Code Civ. Proc., § 436, subds. (a), (b).) A motion to strike may also reach an improper demand for relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b)(3).)

DISCUSSION

The demurrer is OVERRULED. The FAC identifies the subject property, alleges Plaintiff’s ownership and right to possession, alleges that Defendants were permitted to occupy the subject property, alleges service of a written termination notice on February 13, 2026, attaches the notice, alleges Defendants failed to deliver possession after the notice period expired, and alleges resulting damages. (FAC, ¶¶ II, V, VII-VIII, Ex. A.) Those allegations are sufficient at the pleading stage to state the basis for an unlawful detainer claim under Code of Civil Procedure sections 1161 and 1166.

The FAC also is not fatally uncertain. Defendant argues that the FAC changed the original complaint’s reference to an oral month-to-month tenancy to “permission for defendant to occupy,” and that this change makes the pleading uncertain or internally inconsistent. The Court is not persuaded. At the pleading stage, the alleged permission to occupy is not so inconsistent with a tenancy, license, or other occupancy relationship terminable by notice that Defendant cannot reasonably respond. The pleading gives Defendant adequate notice of the property, the alleged basis for possession, the notice served, the alleged termination date, and the relief sought.

The Court also does not find a basis to apply the sham pleading doctrine. The sham pleading doctrine permits a court to disregard allegations in an amended pleading that are inconsistent with prior allegations when the amendment appears designed to avoid defects in the prior pleading and no satisfactory explanation is given. The doctrine is not applied mechanically and is not intended to prevent a party from correcting ambiguous or erroneous allegations. (Hendy v. Losse (1991) 54 Cal.3d 723, 742-743; Dones v.

Life Insurance Company of North America (2020) 55 Cal.App.5th 665, 688.) Here, the change from “oral agreement” or “month-to-month tenancy” to “permission to occupy” does not create an irreconcilable factual contradiction on the face of the FAC. Nor does it show, on the face of the pleadings, that no unlawful detainer claim can be stated truthfully. Defendant may challenge the factual and legal effect of Plaintiff’s alleged occupancy arrangement at the appropriate later stage, but the alleged wording change does not support sustaining the demurrer or striking the FAC.

Defendant also challenges the notice attached to the FAC, arguing it is facially void or internally inconsistent because it references Civil Code section 827, rent-limit and just-cause exemptions, and a just-cause ground for termination. The Court does not decide on demurrer whether Plaintiff ultimately can prove compliance with all statutory notice, justcause, exemption, or withdrawal-from-market requirements. The issue at this stage is whether the FAC and attached notice are so defective on their face that the claim cannot proceed. They are not. The notice identifies the property, the occupants, the termination date, and the stated basis for termination, and the FAC alleges service and continued possession after expiration of the notice period. Those allegations are sufficient to withstand demurrer.

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Defendant’s verification argument also does not defeat the FAC at this stage. Code of Civil Procedure section 1166, subdivision (a)(1), requires an unlawful detainer complaint to be verified. Code of Civil Procedure section 446 permits attorney verification when the party is absent from the county where the attorney has his or her office, when the party is otherwise unable to verify, or when the facts are within the attorney’s knowledge. The FAC contains an attorney verification. Defendant’s argument that Plaintiff personally signed a different Judicial Council form on the same day raises a factual issue that does not establish, on the face of the FAC, that the verification is invalid or that the pleading should be stricken.

The motion to strike the daily rental damages allegation is denied. Plaintiff alleges a daily fair market rental value of $183.33. (FAC, ¶ VIII.) In an unlawful detainer action, the plaintiff may seek damages for the reasonable rental value of the premises during the period of unlawful detention. (See Code Civ. Proc., § 1174, subd. (b); Superior Motels, Inc. v. Rinn Motor Hotels, Inc. (1987) 195 Cal.App.3d 1032, 1068.) Defendant’s disagreement with the alleged daily value does not make the allegation irrelevant, false, or improper on the face of the pleading. The amount and evidentiary support for any reasonable rental value are issues for proof, not grounds to strike the damages allegation at the pleading stage.

Accordingly, Defendant Christina Nicolosi’s demurrer to the FAC is OVERRULED. Defendant’s motion to strike is DENIED. Defendant shall file and serve an answer to the FAC within five calendar days after service of notice of entry of the order, unless the Court orders otherwise. (Cal. Rules of Court, rule 3.1320(g).)

Any party who intends to contest the tentative ruling must email Department 2 at Dept2@sanmateocourt.org, with a copy to all other parties, by 4:00 p.m., stating without argument the portion or portions of the tentative ruling that the party contests.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order repeating verbatim the tentative ruling for the Court’s signature pursuant to California Rules of Court, rule 3.1312, and shall provide written notice of the ruling to all parties who have appeared in the action, as required by law. The Court alerts the parties to revised Local Rule 3.403(b)(iv), amended effective January 1, 2024, regarding the wording of proposed orders.

07/02/2026 – Law and Motion Calendar Judge Mark A. McCannon – Department 2 Page 25 of 25

2:00 PM LINE: 2 26-UDL-00477 CLAUDIO S. NICOLOSI VS. CHRISTINA NICOLOSI, ET AL

CLAUDIO S. NICOLOSI STEVEN T. NAUMCHIK CHRISTINA NICOLOSI PRO SE

DEFENDANT CHRIISTINA NICOLOSI’S MOTION TO STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT

TENTATIVE RULING:

Per the Court’s ruling on the demurrer to the FAC, Defendant’s Motion to Strike is DENIED.

Posted: 3:00 P.M.