Judge Alison Mackenzie, Case Number: 21STCV01409, Date: 2024-02-27 Tentative Ruling

Judge: Alison Mackenzie, Case: 21STCV01409, Date: 2024-02-27 Tentative Ruling

Case Number: 21STCV01409 Hearing Date: April 9, 2024 Dept: 55

NATURE OF PROCEEDINGS: Motion Of Defendant Broadway Exchange Building, LP For Summary Judgment Or, Alternatively, Summary Adjudication.

BACKGROUND

Plaintiff Vianey Elizabeth Sanderson (“Plaintiff”) brings this case against Defendant Broadway Exchange Building, LP (“Defendant”), alleging that defendants took forcible possession of a leased commercial premises at 221 W. 7th Street, Los Angeles, without legal process. The causes of action are: 1. Forcible Entry; and 2. Forcible Detainer.

Defendant has filed a motion requesting summary judgment against Plaintiff, or summary adjudication of the Affirmative Defense of Abandonment. Plaintiff opposes the motion.

LEGAL STANDARD

In moving for summary judgment or summary adjudication, a “defendant . . . has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” Code Civ. Proc. § 437c(p)(2).

The burden then shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. Code Civ. Proc. § 437c(p)(2). “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (as modified (July 11, 2001).

ANALYSIS

Plaintiff alleges claims against Defendant for forcible detainer and forcible entry. The elements of a claim for forcible detainer are:

Plaintiff was an occupant of the premises;
in peaceable possession;
Defendant unlawfully held and kept possession of the real property;
by force or by menaces and threats of violence; and
the possession was acquired peaceably or otherwise.

Providence Baptist Ass'n v. Los Angeles Hompa Honowanji Buddhist Temple (1947) 79 Cal.App.2d 734, 737. See also Code Civ. Proc., § 1160. Similarly, forcible entry requires proof that the defendant used force, threats, or menacing conduct to turn out the plaintiff from property the plaintiff was renting. Code Civ. Proc., § 1159.

Defendant has filed a motion requesting summary judgment against Plaintiff, or summary adjudication of the Affirmative Defense of Abandonment, on the following grounds: 1) Plaintiff’s obligation to pay rent to Defendant between April 2020 and November 2020 was not excused due to the COVID-19 pandemic and resulting government orders; 2) Defendant had a reasonable belief that Plaintiff abandoned the premises on 11/25/20 (Civ. Code §1951.2); and 3) Plaintiff’s fixed-term lease for the premises expired on 12/31/20, such that entry afterwards was not wrongful. In response, Plaintiff contends that: 1) Pandemic law delayed the due date for rent payments; 2) the circumstances could not have given Defendant a reasonable belief of tenant abandonment; and 3) the lease did not expire since Plaintiff exercised an option to extend it.

1. Whether Plaintiff’s Obligation to Pay Rent Between April 2020 and November 2020 was Excused Due to the COVID-19 Pandemic and Resulting Government Orders.

Defendant contends that the pandemic lockdown did not frustrate the purpose of the subject lease or excuse the payment of rent owed. As narrowly phrased by Defendant, this issue is correct as a matter of law. Commercial tenants remain obligated to pay rent pursuant to the lease while in possession of the premises. SVAP III Poway Crossings, LLC v. Fitness Int'l, LLC (2023) 287 Cal. App. 5th 882, 896. But such law fails to take into consideration another material issue of whether Plaintiff’s payment of rent was excused until after the expiration of the Moratorium. “The Moratorium also provided tenants with a year-long forbearance period after the Moratorium ends to pay overdue rent.” Iten v. Los Angeles (9^th Cir. 2023) 81 F.4th 979, 982. The Moratorium applied to commercial tenants having nine or fewer employees. See Los Angeles County COVID-19 Eviction Moratorium (Exec. Order of the Chair of the Los Angeles County Board of Supervisors, § III(e) (9/1/20)). Plaintiff’s obligation to pay rent therefore has been delayed but not excused.

The Court determines that Plaintiff raised triable issues of material fact as to whether Plaintiff’s obligation to pay rent was delayed until after the expiration of the Moratorium. (Vianey Elizabeth Sanderson (Sanderson) Decl., ¶ 6 (“Pursuant to the City of Los Angeles Los Angeles Tenant Protection Act (the "LATPA"), I was not required to pay my rent from April 2020 through the date I was locked out until 3 months after the City of Los Angeles lifted the local state of emergency. The LATPA did not mean that I did not owe or have to pay the rent that accrued….”).)

Thus, Defendant’s issue is granted as worded, with the caveat that it fails to be fully dispositive of the affirmative defense of abandonment on the issue of nonpayment of rent.

2. Whether Plaintiff Abandoned the Premises on 11/25/20.

The Court determines that Defendant shifted the burden of proof, based on evidence that Plaintiff permanently vacated the subject property, and Defendant did not enter it until after the lease term expired. (Sep. Stmnt., pp. 4-5, fact numbers 10-17, and proof referenced thereat). As for triable issues of material fact, there are disputes as to whether there was forcible entry or lease abandonment and expiration. Specifically, Plaintiff’s declaration and exhibits reasonably infer that Plaintiff intended to stay an occupant of the subject premises, given communications with the Defendant. Under the circumstances evidenced by Plaintiff, it was not reasonable for Defendant to believe that Plaintiff had vacated the premises, when Plaintiff left personal property on the premises worth approximately $150,000, Defendant and the Plaintiff continuingly discussed plans to reopen the business, and Plaintiff continued to pay the utility bills. (Sanderson Decl., ¶¶ 7-16.) Plaintiff’s deposition testimony did not unequivocally state an intent to go out of business, but instead to close just a few weeks, to hire new staff. (Lisamarie McDermott Decl., Ex. H, 101:13 (“So we closed down for a couple of weeks to restaff.”).) Tacit or ambiguous deposition admissions may be contradicted by declarations. Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 861-62.

Therefore, the motion is denied as to this issue.

3. Whether Plaintiff’s Fixed-Term Lease for the Premises Expired on 12/31/20 Such That Entry Afterwards Was Not Wrongful.

Regarding the initial burden, Defendant’s declaration provides evidence that Plaintiff never exercised the option to extend the lease, such that Plaintiff permanently vacated the subject property, and Defendant did not enter until after the lease term expired. (Boris Mayzels Decl., ¶ 14 (“Plaintiff Sanderson did not give me notice of her exercise of an option to extend the term of the Lease.”).) In contrast, Plaintiff’s declaration shows exercising the option with a reference to an addendum to the lease. (Sanderson Decl., ¶ 4 (“I exercised the Option extending the Lease to December 31, 2025. Defendant Broadway Exchange LP's Property Manager Boris Mayzels accepted my exercise of the Option. A true and correct copy of the Option is attached hereto as Exhibit 1.”).) Even assuming Plaintiff did not timely exercise the lease option and in writing as provided in the lease addendum, the elements of the claim for forcible detainer (set forth above) only require occupancy in peaceable possession.

Hence, the motion is denied as to this issue.

CONCLUSION

In view of the parties’ respective evidentiary showings that support triable issues of material fact, the Court denies the motion for summary judgment and alternative motion for summary adjudication.