Judge: Frank M. Tavelman, Case: 22PDUD02396, Date: 2023-01-04 Tentative Ruling

Case Number: 22PDUD02396    Hearing Date: January 4, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER

MP:  Shawn and Debra Kaye (Defendants)

RP:  El Pegasus, LLC (Plaintiffs)

Requested Relief:

MP/Defendants Demurrer to the complaint on three grounds: “(1) Matters of which this Court may take judicial notice demonstrate an affirmative defense on the face of the Complaint that bars the stated action. [Code of Civil Procedure §430.30(a)]; (2) The cause of action for unlawful detainer fails to state facts sufficient to constitute a cause of action against defendants. [Code of Civil Procedure § 430.10(e)] (3) The cause of action for unlawful detainer is uncertain. [Code of Civil Procedure § 430.10(f).]”

Brief Case History:

On September 22, 2022, RP/Plaintiff filed an unlawful detainer against MP/Defendant who has demurred.  Plaintiff alleges that they are the property owner, and that Defendants have a month-to-month tenancy with monthly rent of $2,400.  Defendants were served a three-day notice to pay rent or quit on September 7, 2022, and Defendants failed to pay the delinquent rent.  Rental arrears at the time of filing the Complaint were $4,800 for July and August of 2022 (Compl. Exh 2).  Also included in the Complaint was the City of Los Angeles Covid-19 Renter Protections Fact Sheet (Compl. Exh 2) and proof of service of the 3-day notice to pay rent or quit and the Covid-19 Renter Protection Fact Sheet (Compl. Exh 3)

Defendant timely filed a Demurrer, Plaintiff an opposition and Defendant a reply. 

Objections:

MP objects and seeks to strike the following from Plaintiff’s opposition:

1.     Page 2, line 13 through page 3, line 9 (assertions of unauthenticated purported facts outside the four-corners of the Complaint, and repeated reference to unauthenticated documents for which no request for judicial notice was made);

2.     Page 5, lines 17 through 22 (hearsay, and assertions outside the four-corners of the Complaint);

3.     Page 5, line 27 through Page 6, line 6 22 (hearsay, and assertions outside the four-corners of the Complaint);

4.     The declaration of Sharon Fleck, submitted in support of the opposition (does not authenticate documents and is not incorporated or referenced in the opposition at all);

5.     Exhibits 1 through 7 (none of the documents are authenticated and Plaintiff made no request for judicial notice).

The objection as to numbers 4 and four are granted.   As to numbers 1, 2 and 3 the Court is not able to ascertain exactly what portions the MP seek to strike.   For example, page six does not have text through line 22, which include a signature line and page two lines 13 through the end of the page is blank.   As such, the Court cannot rule on those objections; however, to the extent the material is extrinsic to the Complaint and attachments thereto, the Court will disregard the information.

Analysis and Law:

The Court notes the meet and confer requirements of CCP § 430.41(a) do not apply to unlawful detainer actions.  (CCP §430.41(d)(2).)

MP request the Court take judicial notice of Los Angeles Municipal Code (“LAMC”) 49.99 et seq. The Court grants the request pursuant to Evidence Code §451(a).

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  (CCP § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) But this does not include contentions, deductions, conclusions of fact or law alleged in the complaint, facts impossible in law, or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to CCP §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).)

The MP Demurrers arguing that the complaint is uncertain; however, the MP fails to identify the ambiguity or uncertainty in the complaint.  In reviewing the complaint, the Court finds that the RP has met its obligation in this regard.   As such, the Demurrer will not be sustained for uncertainty.

Next the Court addresses whether the judicially noticeable facts would bar recovery.  The Court has judicially noticed LAMC 49.99 et seq. which states:

A.     During the Local Emergency Period and for 12 months after its expiration, no Owner shall endeavor to evict or evict a residential tenant for non-payment of rent during the Local Emergency Period if the tenant is unable to pay rent due to circumstances related to the COVID-19 pandemic. These circumstances include loss of income due to a COVID-19 related workplace closure, child care expenditures due to school closures, health-care expenses related to being ill with COVID-19 or caring for a member of the tenant's household or family who is ill with COVID-19, or reasonable expenditures that stem from government-ordered emergency measures. Tenants shall have up to 12 months following the expiration of the Local Emergency Period to repay any rent deferred during the Local Emergency Period. Nothing in this article eliminates any obligation to pay lawfully charged rent. However, the tenant and Owner may, prior to the expiration of the Local Emergency Period or within 90 days of the first missed rent payment, whichever comes first, mutually agree to a plan for repayment of unpaid rent selected from options promulgated by the Los Angeles Housing Department ("LAHD") for that purpose. (Amended by Ord. No. 187,122, Eff. 8/8/21.)

The Court also expressly takes Judicial Notice of LAMC §49.99.6 which states: “Tenants may use the protections afforded in this article as an affirmative defense in an unlawful detainer action.”   The language of the ordinance is not a pleading requirement for a plaintiff, but rather an affirmative defense that may or may not have been triggered but is not apparent from the complaint or judicially noticeable facts.   RP’s position is that MP does not qualify for relief under the ordinance, which MP disputes. A demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense (e.g., statute of limitations). (Silva v. Langford (2022) 79 Cal.App.5th 710, 710).  In this instance, the face of the complaint does not disclose the action is necessarily barred.

Similarly, Los Angeles County Resolution contains similar language as Los Angeles City’s Ordinance and is not a basis for a Demurrer.

Conclusion

The Demurrer is overruled.  The Defendant has five days to file an answer pursuant to Code of Civil Procedure §1167.3.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendants / Moving Party’s Demurrer came on regularly for hearing on January 4, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRER IS OVERRULED.

PLAINTIFF / RESPONDING PARTY TO GIVE NOTICE.

IT IS SO ORDERED.

DATE:  January 4, 2023                                  _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

                                                                        County of Los Angeles