Judge: Elaine W. Mandel, Case: 22SMCV00828, Date: 2022-09-09 Tentative Ruling

Case Number: 22SMCV00828    Hearing Date: September 9, 2022    Dept: P

Tentative Ruling
Rittersbacher Sunset, LLC v. Osik Media, LLC et al., Case No. 22SMCV00828
Hearing Date September 9, 2022
Defendant Osik Media, LLC’s Demurrer to Complaint and Motion to Strike

Plaintiff Rittersbacher alleges defendant Osik wrongfully operated a billboard on Rittersbacher’s property without permission or paying rent. Rittersbacher argues Osik’s continued use of the property interfered with sale of the property. Osik demurs, arguing it has a right to use the billboard under a sublease that is still in effect, despite termination of the master lease.

Voluntary termination of a master lease does not generally terminate a sublease unless the primary tenant “incurred a forfeiture” by breaching the master lease, resulting in the service of a three-day notice to pay rent, or quit. E.g., Fifth and Broadway Partnership v. Kimny (1980) 102 Cal.App.3d 195, 203.

Extrinsic evidence cannot be used as the basis for a demurrer unless the evidence is judicially noticeable. Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881; Gould v. Maryland Sound Indus., Inc. (1995) 31 Cal.App.4th 1137, 1145. The existence and contents of a written agreement may be properly judicially noticed if there is no factual dispute that the document is genuine and accurate. Chacon v. Union Pacific Railroad (2020) 56 Cal.App.5th 565, 572.

The demurrer is based on alleged forfeiture of the master lease. As Rittersbacher does not dispute existence of the master lease or its terms, it is subject to judicial notice under Chacon.

Osik argues Rittersbacher fails to adequately allege forfeiture of the master lease such that its termination would result in termination of the sublease. Osik also argues plaintiff did not allege service of a three-day notice to pay rent or quit.

Rittersbacher argues the court should not entertain this argument because it is based on the terms and existence of the master lease. As Rittersbacher admits the lease exists, judicial notice is proper. The complaint alleges the ground lease was terminated after the master tenant informed Rittersbacher it would be unable to pay rent. Complaint ¶¶10-11. This sufficiently alleges involuntary “forfeiture” for purposes of pleading. This forfeiture, if proven, would result in termination of the sublease. The argument that the complaint does not adequately allege termination of the sublease fails.

Osik’s argument that the complaint must allege a three-day notice was served seeks more specificity than is required on demurrer. Osik’s argument that Rittersbacher lacks standing to enforce the sublease is unavailing, since its claim arises out of termination of the master lease, to which the sublease is subordinate. There is no dispute that Rittersbacher was a party to the master lease, so there is standing to make claims based on its termination. OVERRULED

Motion to Strike
Osik seeks to strike claims for punitive and statutory damages for lack of allegations of fraud, malice, or oppression. Cal. Civ. Code §3294. The complaint alleges Osik knowingly and intentionally retained possession of the property to thwart Rittersbacher’s sale. Complaint ¶15. If proven, this constitutes malice sufficient to support a claim for punitive damages. The motion to strike the claim for statutory damages is based on the same arguments as the demurrer and fails for the same reasons. DENIED.