Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant Garrett Bellrios 

 

RESPONDING PARTY: Plaintiff Xenon Investment Corp. 

 

BACKGROUND 

This action stems from a landlord-tenant dispute.  Plaintiff Xenon Investment Corp. entered into a written lease with Defendant Garrett Bellrios, LLC (“LLC”) for commercial property located at 1106 N. La Cienega Boulevard, #206, West Hollywood, California (the “Property”).  The lease was personally guaranteed by Defendant Garrett Bellrios (“Bellrios”).   

The lease contains another entity as co-lessee, Katrina Spears Babcock D.O. Corporation.  But the lease provides that each co-lessee signatory shall be jointly and severally liable for all obligations under the lease.   

LLC has been in arrears on its rental payments since April 1, 2020.  LLC has also sublet a portion of its interest in the Property without Plaintiff’s consent after Plaintiff’s determination that the sublessee was not financially suitable.      

This hearing is on Bellrios’ demurrer to the complaint.  Bellrios argues that the various city, county and state lockdown orders during the COVID pandemic frustrated the purpose of the lease and was a force majeure excusing his performance.  Bellrios also argues that the complaint fails to include indispensable parties in this matter, specifically the co-lessee, Katrina Spearks Babcock DO, Inc., and its guarantor Katrina Babcock.     

REQUEST FOR JUDICIAL NOTICE 

Defendant seek judicial notice of a “stay-at-home” order issued by Governor Gavin Newsom during the COVID pandemic.  The request is unopposed.  The Court grants the request for judicial notice pursuant to Cal. Evid. Code §§ 452 and 453. 

MEET AND CONFER¿ 

Code Civ. Proc. §430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 430.41(a).)¿ The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).)¿ Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP § 430.41(a)(3).)¿ Bellrios submits the declaration of Arash Shirdel attesting that counsel only sent a meet and confer letter to Plaintiff’s counsel, without any effort to meet and confer in person or by phone.  This does not satisfy the meet and confer requirements, and the Court cautions the parties that any future failures to meet and confer will result in the continuance of the hearing.   

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

A demurrer to a complaint may be general or special.  A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)  A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc., § 430.10, subd. (f).)  The term uncertain includes the issue of whether the pleading is “ambiguous and unintelligible.”  (Id.)  A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

DISCUSSION 

Force Majeure 

All contracts entered in California carry a force majeure provision, even if not spelled out in the contract.  Cal. Civ. Code section 1151(e) states in pertinent part: “the want of performance of an obligation or of an offer of performance in whole or in part or any delay therein is excused by the following causes to the extent to which they operate: (1) when such performance or offer is prevented or delayed … by the operation of law, even though there may have been a stipulation that this shall not be an excuse …; (2) when it is prevented or delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States.” 

Here, even assuming the stay-at-home order was an “irresistible, superhuman cause”, Defendants (who were operating a medical office) were exempt from the order, and therefore, they cannot assert that the order rendered their performance impossible or impracticable.   

Frustration of Purpose 

Frustration of purpose is a defense that arises when performance of the contract is actually possible, but the anticipated value of the performance to the party asserting the defense has been destroyed by an unexpected event causing an actual—although not literal—failure of consideration.¿(Lloyd v. Murphy¿(1944) 25 Cal.2d 48, 53). 

Mere difficulty or unusual or unexpected expense of performance does not give rise to the defense.¿(Mineral Park Land Co. v. Howard¿(1916) 172 Cal. 289, 293;¿Glens Falls Indemnity Co. v. Perscallo¿(1950) 96 Cal.App.2d 799, 802.) 

“[L]aws or other governmental acts that make performance unprofitable or more difficult or expensive do not excuse the duty to perform a contractual obligation.”¿(Lloyd, 25 Cal.2d at 55¿(making this holding in the context of a frustration of purpose defense, which the court noted is “akin to the doctrine of impossibility”);¿see also¿Glens Falls, 96 Cal. App. 2d at 802¿(“Mere difficulty, or unusual or unexpected expense does not establish frustration or impossibility of performance of a contract.”);¿Waegemann v. Montgomery Ward & Co.¿(9th Cir. 1983) 713 F.2d 452, 455¿(“The excuse of frustration serves to mitigate the costs of disaster, not to provide a means of escape from a contract less profitable than anticipated.”).)   

Here, the stay-at-home order did not frustrate the purpose of the lease.  Bellrios was operating a medical office which was expressly exempt from the stay-at-home order.  Neither allegations in the Complaint nor judicially noticeable facts show Defendants could not operate the office and did not have the ability to pay amounts required to be paid under the lease.   

Indispensable Parties 

Bellrios argues that his co-lessee and co-guarantor are indispensable parties.  But Defendants are severally liable under the Lease.   

“Parties to a joint and several contract are [] bound jointly, so that they are liable for the entire obligation and severally so that each may be sued separately for the entire loss.  The change to joint and several liability allowed individual promisors to be sued for enforcement of a contract without joining all co-promisors.”  DRN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 820.  “It has long been settled that contracting parties who are severally liable, or subject to joint and several liability, may be sued in the same action or in separate actions at the plaintiff’s option.”  (Id. (emphasis in original).)   

Accordingly, Plaintiff was not obligated to join the co-lessee and the co-guarantor, and their absence cannot support a demurrer.      

CONCLUSION 

Based on the foregoing, the Court OVERRULES the demurrer.   

 

IT IS SO ORDERED. 

 

DATED: April 28, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court