Judge: George F. Bird, Jr., Case: 22CMUD00757, Date: 2023-01-10 Tentative Ruling

“INSTRUCTIONS:
If the parties wish to submit on the tentative ruling and avoid a court
appearance on the matter, the moving party must:

1. Contact the opposing party and all other
parties who have appeared in the action and confirm that each will submit on the
tentative ruling.

2. No later than 4:00 p.m. on the court day
before the hearing, call the Courtroom (310-761-4302) advising that all parties
will submit on the tentative ruling and waive hearing; and

3. Serve notice of the Court's ruling on all
parties entitled to receive service.

If this procedure is followed, when the case is
called the Court will enter its ruling on the motion in accordance with its
tentative ruling. If any party declines to submit on the tentative ruling, then
no telephone call is necessary, and all parties should appear at the hearing.
If there is neither a telephone call nor an appearance, then the matter may
either be taken off calendar or ruled on. 

Case Number: 22CMUD00757    Hearing Date: January 10, 2023    Dept: B

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.       BACKGROUND  

            This unlawful detainer action was commenced on June 29, 2022. Plaintiff Alejandro Sanchez (“Plaintiff”) alleges they are the Landlord-Owner of a property located at 342 W. ALMOND ST, COMPTON, CA 90220 (the “Property”). (Complaint (“Compl.”), ¶¶ 3, 4.) Plaintiff alleges that on or about November 1, 2019, Defendant Brianna Butler (“Defendant”) entered into a written agreement with Plaintiff for a month-to-month tenancy at the Property at a rental rate of $1,800.00 per month. (Compl. ¶ 6.) On June 15, 2022, Plaintiff alleges they served Defendant with a 3-day notice to pay rent or quit by personally handing them the notice. (Compl. ¶¶ 9(a), 9(b)(1), 10(a)(1).) Plaintiff seeks past due rent, attorney fees, forfeiture of the agreement, and damages. (Compl. ¶ 19.)

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II.    MOTION FOR SUMMARY JUDGMENT

A.    Defendant filed a Motion for Summary Judgment on December 7, 2022.

            Defendant alleges that Plaintiff’s claim is fatally defective because Plaintiff served a three-day notice to pay rent or quit while the U.S. Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) requires Plaintiff to provide 30 days’ notice when requiring the tenant to vacate. In an unlawful detainer action, a summary judgment motion may be made at any time after the answer is filed upon giving five days notice. (Code Civ. Proc., § 1170.7.) This Motion for Summary Judgment is timely.

B.     Plaintiff filed an opposition on December 27, 2022.

            Plaintiff’s opposition argues that Defendant has not met their initial burden of proof because the documents are not subject to judicial notice. (Opposition, pg. 1-2:22-5.) Additionally, Plaintiff argues that the CARES Act protections have expired. (Opposition, pg. 5:1.)

III.  LEGAL STANDARDS

            Code of Civil Procedure, section 1170.7 states that a motion for summary judgment in an unlawful detainer action is evaluated as a typical summary judgment motion under Code of Civil Procedure, section 437c.

            The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

            “On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment “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 . . . cannot be established.”  (Code Civ. Proc., § 437c(p)(2).)  “Once the defendant . . . has met that burden, the burden 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.”  (Id.)  “If the plaintiff cannot do so, summary judgment should be granted.”  (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

            “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

IV.  DEFENDANT’S REQUEST FOR JUDICIAL NOTICE

            Defendant requests that the court take judicial notice of two documents: (1) A printout obtained at https://www.knowyouroptions.com/rentersresourcefinder which allegedly allows renters to determine if a property is financed by the Federal National Mortgage Association, Fannie Mae, (“Exhibit A”); and (2) A printout of the results of a search on https://www.knowyouroptions.com/rentersresourcefinder when Defense Counsel searched the address of the Property (“Exhibit B”).

            Defendant states they bring this request for judicial notice under Code of Civil Procedure, section 452, subdivision (h) which allows a court to take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Code of Civil Procedure, section 453 states that “[t]he trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.”

             The Court of Appeal has clarified, “[w]hile we may take judicial notice of the existence of the audit report, Web sites, and blogs, we may not accept their contents as true. (Unruh–Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 364, 76 Cal.Rptr.3d 146.) ‘When judicial notice is taken of a document, however, the truthfulness and proper interpretation of the document are disputable. [Citation.]’ (StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9, 84 Cal.Rptr.2d 843, 976 P.2d 214.)” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193 [147 Cal.Rptr.3d 41, 52].) This Court takes judicial notice of the existence of https://www.knowyouroptions.com/rentersresourcefinder, but judicial notice does not extend to any of the content presented in Exhibit A or Exhibit B.

V.    PLAINTIFF’S EVIDENTIARY OBJECTIONS

            Plaintiff brings evidentiary objections against both documents Defendant presents for judicial notice.

            Plaintiff argues that Exhibit B is not the document identified in the body of the request for judicial notice. This objection is overruled. The body of the Request for Judicial Notice states that Exhibit B is “[a] printout generated from of the results from Defense Counsel’s entry, on December 7, 2022, of the following address into the Renters Resource Finder’s search bars: ‘342 W. Almond Street, Compton, CA 90220….’” (Request for Judicial Notice, ¶ 1(b).) The declaration of Amy Tannenbaum declares, under penalty of perjury, “On December 7, 2022, I visited Fannie Mae’s online Renters Resource Finder, available at https://www.knowyouroptions.com/rentersresourcefinder. A true and correct copy of the

search page is attached hereto as Exhibit A. I entered the address ‘342 W. Almond Street, Compton, CA 90220’ in the search bars. A true and correct copy of the results from the search are attached hereto as Exhibit B.” (Decl. of Amy Tannenbaum, ¶¶ 2,3.)

            Upon reviewing Exhibit B, the header of the document states that it is from “Fannie Mae Know Your Options” and the page on the website is titled “Renters Resource Finder Results.” (Request for Judicial Notice, Exhibit B.) The address that was entered is listed as “342 W. Almond Street, Compton, CA 90220.” (Ibid.) The Court finds that the page presented as Exhibit B matches the allegations made in the Request for Judicial Notice and the declaration of Amy Tannenbaum. Evidence Code, section 1552, subdivision (a) also provides that “[a] printed representation of computer information or a computer program is presumed to be an accurate representation of the computer information or computer program that it purports to represent.” There is a presumption that Exhibit B is an accurate representation of a search of the Property address at https://www.knowyouroptions.com/rentersresourcefinder.

            Plaintiff also argues that Exhibit A is irrelevant. The objection is overruled. Both Exhibit A and Exhibit B are relevant to Defendant’s argument that the Property is subject to the CARES Act protections. Exhibit B is alleged to be the result of a search on https://www.knowyouroptions.com/rentersresourcefinder, which is the website demonstrated by Exhibit A.

            Finally, Plaintiff alleges that both Exhibit A and Exhibit B are not actually attached to the Request for Judicial Notice. This objection is overruled. The Exhibits are within the same document as the body of the Request for Judicial Notice. The declaration of Amy Tannenbaum appearing between the body and the exhibits does not prejudice Plaintiff in any way. In the absence of any additional objections, the Court will admit Exhibit A and Exhibit B as evidence to consider while evaluating this Motion for Summary Judgment.

VI. DISCUSSION

A.    The CARES Act

            The CARES Act is federal legislation that provides a temporary moratorium on qualifying evictions and extended notice requirements for evictions of covered dwellings. The CARES Act applies to any ‘covered dwelling’ which is defined as “… a dwelling that- (A) is occupied by a tenant- (i) pursuant to a residential lease; or (ii) without a lease or with a lease terminable under State law; and (B) is on or in a covered property.” (15 U.S.C. § 9058(a)(1).) A ‘covered property’ is further defined as “… any property that- (A) participates in- (i) a covered housing program (as defined in section 12491(a) of title 34); or (ii) the rural housing voucher program under section 1490r of title 42; or (B) has a- (i) Federally backed mortgage loan; or (ii) Federally backed multifamily mortgage loan.” (15 U.S.C. § 9058(a)(2).)

            “The term ‘Federally backed multifamily mortgage loan’ includes any loan (other than temporary financing such as a construction loan) that- (A) is secured by a first or subordinate lien on residential multifamily real property designed principally for the occupancy of 5 or more families, including any such secured loan, the proceeds of which are used to prepay or pay off an existing loan secured by the same property; and (B) is made in whole or in part, or insured, guaranteed, supplemented, or assisted in any way, by any officer or agency of the Federal Government or under or in connection with a housing or urban development program administered by the Secretary of Housing and Urban Development or a housing or related program administered by any other such officer or agency, or is purchased or securitized by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association.” (15 U.S.C. §9058(a)(5).)

            If a property falls under the CARES Act, there are two categories of protections provided: eviction moratorium and notice. The eviction moratorium has a statutory expiration after “… the 120-day period beginning on March 27, 2020…,” so the moratorium expired on July 25, 2020. The notice protections in 15 U.S.C. §9058(c) do not have an explicit timeframe. 15 U.S.C. §9058(c) states in full, “The lessor of a covered dwelling unit- (1) may not require the tenant to vacate the covered dwelling unit before the date that is 30 days after the date on which the lessor provides the tenant with a notice to vacate; and (2) may not issue a notice to vacate under paragraph (1) until after the expiration of the period described in subsection (b).”

B.     Defendant’s notice argument

            There is no dispute between the parties that Plaintiff provided Defendant a three-day notice to pay rent or vacate the Property. Defendant argues that the notice is improper because the Property falls under the CARES Act protections which require a 30-day notice.

            The CARES Act applies to a ‘covered dwelling’ which is a dwelling occupied by a tenant with a residential lease that is on or in a covered property. (15 U.S.C. § 9058(a)(1).) A ‘covered property’ includes a property that has a “Federally backed multifamily mortgage loan.” (15 U.S.C. § 9058(a)(2)(B)(ii).) A federally backed multifamily mortgage loan is further defined to include any loan that is  “… purchased or securitized by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association.” (15 U.S.C. §9058(a)(5).)  Defendant alleges that there is a federally backed multifamily mortgage loan financed by the Federal National Mortgage Association on the Property and that Defendant is a tenant with a residential lease which would bring the Property under the CARES Act protections.

            Defendant presents two exhibits in support of their argument that the loan on the Property is financed by the Federal National Mortgage Association. Exhibit A is declared by Amy Tannenbaum to be a printout of the “Fannie Mae’s online Renters Resource Finder, available at https://www.knowyouroptions.com/rentersresourcefinder.” (Decl. of Amy Tannenbaum attached to the Request for Judicial Notice, ¶ 2.) Exhibit B is alleged to be the result of entering the Property address into the search bar at https://www.knowyouroptions.com/rentersresourcefinder. (Decl. of Amy Tannenbaum attached to the Request for Judicial Notice, ¶ 3.)

            Upon reviewing Exhibit B, the evidence states, “Our records indicate the rental property at the address you provided below is financed by Fannie Mae…” and the address searched is listed as “342 W. Almond Street, Compton, CA 90220” which is the address for the Property at issue here. This evidence allows the court to draw a reasonable inference that the Property is financed by the Federal National Mortgage Association, known as Fannie Mae.

C.     The CARES Act notice requirement is still in effect

            Defendant also argues that the 30-day notice provision is still in full effect. The moratorium provision of the CARES act states; “During the 120-day period beginning on March 27, 2020, ….” (15 U.S.C. § 9058 (b).) Defendant argues that the 120-day restriction does not extend to the notice provision.

            The pending legislation regarding 15 U.S.C. §9058(c) indicates that the 30-day notice requirement is still in effect. A bill was introduced in the House of Representatives in September of 2022 (2022 H.R. 9062) titled the “Respect State Housing Laws Act.” It reads in full: “Section 4024 of the CARES Act (15 U.S.C. 9058) is amended by striking subsection (c).” (117th CONGRESS, 2nd Session.) The legislation has not been enacted yet, but the need for a bill to strike the notice section indicates that 15 U.S.C. §9058(c) is still in effect and was not impacted by the expiration of the moratorium protections.

            Smallwood v. Willow Way, LLC (N.D.Tex. Apr. 19, 2021, Civil Action No. 3:20-CV-02989-S-BH) 2021 U.S.Dist.LEXIS 120814, at *20–21 offers further support that the notice requirement is still in effect. The court in the Northern District of Texas interpreted 15 U.S.C. § 9058 as follows: “Section 4024 prohibits landlords of a ‘covered dwelling’ from filing eviction proceedings against tenants for nonpayment of rent, fees, or charges during the 120-day period beginning on March 27, 2020. See 15 U.S.C. § 9058(b)(1). It also prohibits them from charging fees, penalties, or other charges for such nonpayment. Id. § 9058(b)(2). Additionally, a landlord may not issue a notice to vacate until after the eviction moratorium has expired, and it may not require the tenant to vacate within 30 days of receiving the notice to vacate. Id. § 9058(c). A ‘covered dwelling’ includes property occupied by a tenant that either participates in a covered housing program or the rural housing voucher program, or has a Federally backed mortgage loan or multifamily mortgage loan. See id. § 9058(a)(1)-(2). The eviction moratorium expired on July 24, 2020.” (Italics added for emphasis.)

            The interpretation presented provides that the notice requirements must outlast the eviction moratorium because a landlord was prevented from issuing any notice to vacate until after the moratorium expired. Only once the moratorium expired were landlords then allowed to provide a 30-day notice to vacate a covered dwelling.

            Defendant presents Watson v. Vici Cmty. Dev. Corp., Case No. CIV-20-1011-F (W.D. Okla. Apr. 12, 2021) 2022 WL 910155, to demonstrate that the 30-day notice requirement is still in effect. In that case, the plaintiff alleged that the defendants failed to comply with the 30-day notice requirement prior to commencing an eviction action on August 25, 2020. (Id. at *9.) The defendants did not contest that a 30-day notice was not provided but instead asserted that the notice requirement did not apply to actions not based on the nonpayment of rent. (Id. at *10.) “The court concludes the issue as to defendants’ reason for commencing the August 25, 2020 eviction proceeding and whether they violated the CARES Act is for one trial.” (Ibid.) The question of if the 30-day notice requirement was still in force was not directly before the court in Watson and any questions about the applicability of the 30-day notice were left for a jury to decide.

            Defendant also points to the Judicial Counsel of California form UD-105, which was updated on April 14, 2022, that allows a defendant to assert that “[t]he property is covered by the federal CARES Act and the plaintiff did not provide 30 days' notice to vacate.” (UD-105, Item 3r.) The Court does not interpret UD-105 to be persuasive authority that the 30-day notice requirement is still in effect. The 30-day notice requirement would be applicable to evictions that occurred within the 120 days following March 27, 2020, and the form provides a place for a defendant to assert that defense. It is simply an option that a defendant may elect to assert in defense and then the burden is on the defendant to prove the defense is applicable to their scenario.  

            Finally, Defendant presents the portion of Exhibit B which states, “Residents in Fannie-Mae financed apartments may also be eligible for certain COVID-19-related tenant protections. If your landlord or property owner has received payment relief on the financing we provided (this is known as forbearance), these protections could include:

• Protection from eviction solely for failure to pay your rent

• At least a 30-day notice to vacate your rental unit ….” (Request for Judicial Notice, Exhibit B.)

            Exhibit B is not persuasive because the list of protections is directly followed by the statement, “Please reach out to your landlord or property manager to determine if these protections are applicable to you.” The evidence does not assert that the protections still apply to the Property or that the 30-day notice requirement is still in effect for all covered properties.

            Defendant presents ample evidence and legal authority that the Property is covered by the CARES Act. The legislative history and the statutory interpretation presented by the court of the Northern District of Texas are persuasive. Thus, the Court finds that the 30-day notice requirement applied to the Property during the time period in question.

            Because Defendant has met their burden, Plaintiff must now demonstrate a triable issue of material fact to avoid summary judgment in favor of Defendant.

D.    Plaintiff’s opposition

            Plaintiff challenges that the Property is financed by the Federal National Mortgage Association, known as Fannie Mae. Plaintiff argues that Exhibit A and Exhibit B presented by Defendant do not demonstrate the contention that the Property is financed through Fannie Mae. Plaintiff gives a declaration in opposition which states, “The mortgage was refinanced in 2019 through a broker, and we make our payments to PNC Bank. I recently called PNC Bank with my daughter-in-law to see if the bank knew if the loan had been securitized or purchased by the Federal National Mortgage Association. They informed us that because they just refinanced the loan they could not see that information, so I cannot definitely determine the answer to this issue.”

            Exhibit B presented by Defendant states, “Our records indicate the rental property at the address you provided below is financed by Fannie Mae.… Address: 342 W. Almond Street, Compton, CA 90220.” Plaintiff being unable to confirm if the loan is purchased by the Federal National Mortgage Association does not create a triable issue of material fact when Defendant has presented evidence to the contrary.

            Plaintiff also argues that the CARES Act provisions have expired as of December 27, 2021. Plaintiff only presents authority that the CARES Act amendments to the Bankruptcy code sections have expired. Plaintiff does not present any case law or other legal authority that the notice requirement under 15 U.S.C. § 9058(c) has expired. The pending 2022 H.R. 9062 bill attempting to strike the notice requirement for evictions indicate that the code section is still in effect.

            Plaintiff has failed to demonstrate a triable issue of material fact in this action. Because Plaintiff failed to satisfy their burden, this Motion for Summary Judgment is GRANTED in favor of Defendant.

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VII.          CONCLUSION

             This Motion for Summary Judgment is GRANTED.

Dated: January 10, 2023                                             __________________________________

                                                                                                Judge of the Superior Court