Kenmore 3450, LLC v. KBI Food Ventures LLC

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STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES KENMORE 3450, LLC, a California limited liability company, Plaintiff, vs. KBI FOOD VENTURES LLC, a California limited liability company, D/B/A AYCE KOREAN BBQ, Defendants. |))))))))))) | CASE NO.: 26STCV17976 [TENTATIVE] ORDER RE: DEFENDANT'S DEMURRER TO COMPLAINT Dept. 733 8:30 a.m. August 19, 2026 | I. INTRODUCTION On June 8, 2026, Plaintiff Kenmore 3450, LLC ("Plaintiff") filed an Unlawful Detainer complaint against Defendant KBI Food Ventures LLC dba AYCE Korean BBQ ("Defendant"). On July 20, 2026, Defendant filed the instant demurrer. On August 6, 2026, Plaintiff filed an opposition. No reply was filed. II.

LEGAL STANDARD A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., Sec. 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading "by raising questions of law." (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) "In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ.

Proc., Sec. 452.) The court "'treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . ..'" (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) When a demurrer is sustained, leave to amend must be al lowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v.

YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) III. DISCUSSION Defendant demurs to the complaint on the ground that its filing was premature, as the effectuation of Plaintiff's Three-Day Notice, a prerequisite to the Unlawful Detainer action, was performed on June 3, 2026, and Complaint was filed on June 8, 2026, before the notice expired. Code of Civil Procedure section 1161(2) provides in relevant part that a tenant is guilty of unlawful detainer: [w]hen he or she continues in possession, in person or by subtenant, without the permission of his or her landlord, or the successor in estate of his or her landlord, if applicable, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days' notice, excluding Saturdays and Sundays and other judicial holidays, in writing, requiring its payment, stating the amount which is due, the name, telephone number, and address of the person to whom the rent payment shall be made, and, if payment may be made personally, the usual days and hours that person will be available to receive the payment (provided that, if the address does not allow for personal delivery, then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed received by the owner on the date posted, if the tenant can show proof of mailing to the name and address provided by the owner), or the number of an account in a financial institution into which the rental payment may be made, and the name and street address of the institution (provided that the institution is located within five miles of the rental property), or if an electronic funds transfer procedure has been previously established, that payment may be made pursuant to that procedure, or possession of the property, shall have been served upon him or her and if there is a subtenant in actual occupation of the premises, also upon

the subtenant. The notice may be served at any time within one year after the rent becomes due. . . . Accordingly, the basic elements of unlawful detainer for nonpayment of rent contained in section 1161(2) are "(1) the tenant is in possession of the premises; (2) that possession is without permission; (3) the tenant is in default for nonpayment of rent; (4) the tenant has been properly served with a written notice; and (5) the default continues after the three-day notice period has elapsed." (Kruger v.

Reyes (2014) 232 Cal.App.4th Supp. 10, 16.) "Due to the summary nature of such an action, a [notice to pay rent or quit] is valid only if the landlord strictly complies with the provisions of section 1161, subdivision 2." (Levitz Furniture Co. v. Wingtip Communications, Inc. (2001) 86 Cal.App.4th 1035, 1038.) Here, Plaintiff alleges that the Three-Day Notice to Pay Rent or Quit was served on June 2, 2026 by leaving a copy and then on June 3, 2026 by substituted service and mailing pursuant to Code of Civil Procedure section 1162. (Compl., P. 10(a)(2).)

However, Defendant asserts that while Plaintiff alleges that the notice expired on June 5, 2026 (id. P. 9(b)(1)), the notice actually did not expire until June 8, 2026. As stated above, Plaintiff alleges that the Three-Day Notice was delivered on June 2, 2026 via substituted service by leaving the notice with "John Doe, Floor Manager, Occupant." (Compl., P. 10(a)(2).) But Plaintiff then alleges that the notice was then mailed on June 3, 2026. (Ibid.) Code of Civil Procedure section 1162(b)(2) explicitly states that service pursuant to that subdivision requires both "leaving a copy with some person of suitable age and discretion at the property, and sending a copy through the mail addressed to the tenant at the address where the property is situated." (Code Civ.

Proc., Sec. 1162(b)(2) (emphasis added).) Thus, service was not perfected until both actions occurred. According to the complaint, the notice was mailed on June 3, 2026, and therefore proper service was completed on this date. June 3, 2026 was a Wednesday. Three days later was June 6, 2026, a Saturday. Given that section 1161 expressly provides that the tenant must receive three days, excluding Saturdays, Sundays, and judicial holidays, the notice did not expire until June 8, 2026, which was that following Monday.

Because Plaintiff's action commenced before the expiration of the statutory notice period, Plaintiff's cause of action for Unlawful Detainer had not yet accrued. The complaint was filed prematurely, which is a fundamental defect as strict compliance with the unlawful detainer statutes is necessary. (Liebovich v. Shahrokhkhany (1997) 56 Cal.App.4th 511, 513 ["A lessor must strictly comply with the statutorily mandated requirements for service of a three-day notice to pay rent or quit. [Citations.]"]; Borsuk v.

App. Div. of Superior Ct. (2015) 242 Cal. App. 4th 607, 612-13 ["service of the three-day notice is merely an element of an unlawful detainer cause of action that must be alleged and proven for the landlord to acquire possession."]; see also Cal. Landlord-Tenant Practice (Cont.Ed.Bar 2d ed. 2015) Sec. 10.12 ["A complaint that

fails to allege facts essential to an unlawful detainer cause of action may ... be attacked by a demurrer."].) Defendant's demurrer is sustained without leave to amend. IV. CONCLUSION Based on the foregoing, Defendant's demurrer is SUSTAINED in its entirety without leave to amend. Dated this 19th day of August 2026 | | | Hon. Gary D. Roberts Judge of the Superior Court | | Home -->)" -->