Judge: H. Jay Ford, III, Case: 22SMCV00438, Date: 2022-12-13 Tentative Ruling

Case Number: 22SMCV00438    Hearing Date: December 13, 2022    Dept: O

  Case Name:  De Pacific 233, LLC v. Boesch, et al.

SUBJECT:                MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendants/Cross-Complainants Philip W. Boesch, Jr, APC and Philip W. Boesch, Jr.

RESP. PARTY:         Plaintiff De Pacific 233, LLC

TENTATIVE RULING

            Defendants/Cross-Complainants Philip W. Boesch, Jr, APC and Philip W. Boesch, Jr.’s Motion for Summary Judgment is DENIED.  Defendants’ Requests for Judicial notice (RJN) (2) are GRANTED. Plaintiff’s RJN is GRANTED.   Defendant’s objections to the declaration of Gina Lomeli are OVERRULED.

            Defendants move for summary judgment of Plaintiffs’ causes of action for breach of lease agreement and breach guaranty.  Defendants’ motion is based on the affirmative defense set forth in Section XI(C) of the January 25, 2022 Resolution of the LA County Board of Supervisors.  Defendants claim Plaintiff violated the Harassment and Retaliation Protections set forth in the January 25, 2022 Resolution by posting a Notice to Pay Rent or Quit in December 2020.  As moving party, Defendants have the burden to show that undisputed facts support each element of the affirmative defense.  See Sumner v. Simpson University (2018) 27 Cal.App.5th 577, 580 (defendants established each element of ministerial exception as a complete defense to tort claims but exception did not foreclose contract claims). 

            Pursuant to Section XI(C) of the January 25, 2022 Resolution, “Effective March 4, 2020, any Protections, including the Protection pertaining to Personal Guarantees for commercial rental debt, provided under this Resolution shall constitute an affirmative defense for a Tenant in any unlawful detainer action brought pursuant to California Code of Civil Procedure section 1161, as amended, and any other civil action seeking repayment of rental debt.  Said affirmative defenses shall survive the termination or expiration of these Protections.” 

            The January 25, 2022 Resolution creates several categories of “Protection,” including eviction protections and harassment and retaliation protections.  According to Defendants, Plaintiff posted a Notice to Pay Rent or Quit in December 2020.  See Defendants’ SSUMF No. 9. 

            Interpretation of a statute is a question of law for the court.  See Boshernitsan v. Bach (2021) 61 Cal.App.5^th 883, 889-890 (reviewing trail court order sustaining demurrer based on interpretation of San Francisco rent ordinance de novo).  This rule applies equally to local ordinances.  Id. 

            The Court finds Section IX(C) cannot reasonably be interpreted to create an affirmative defense to causes of action that do not violate any of the “Protections” set forth in the January 25, 2022 Resolution and do not rely upon a violation of the enumerated Protections to establish an essential element.  Defendants’ interpretation would effectively grant tenants a defense in perpetuity against any action to collect rent.  This would be an unreasonable windfall for tenants and an appropriation of the landlords’ right to the rent. 

            Plaintiff’s complaint is not an unlawful detainer action based on the December 2020 notice.  Defendants fail to establish that the December 2020 Notice satisfies any element of Plaintiff’s causes of action.  Defendants fail to establish that Section XI(C) of the January 25, 2022 Resolution is a complete defense to the Plaintiff’s claims for breach of lease and breach of guaranty. 

            In addition, interpreting Section IX(C) of the January 25, 2022 Resolution in the manner suggested by Defendants would conflict with Section VI, “Eviction Protection.”  Section VI(C) of the January 25, 2022 Resolution states that “unpaid rent incurred during the Protections Period shall be repaid pursuant to the following…”  See Defendants’ RJN, Ex. 13, p. 16, Section VI(C).  The County Guidelines also expressly stated that the “Moratorium does not cancel a Tenant’s obligations to pay rent.”  See Plaintiff’s RJN, Ex. 2, Section 8.1.   

            Also, the January 25, 2022 Resolution was not in effect when Defendants posted the notice to pay rent or quit in December 2020.  Section XI(C) was not in effect at that time.  Nothing in the January 25, 2022 Resolution indicates that the affirmative defense thereunder applies to “Protection” violations that occurred before the January 25, 2022 Resolution was adopted.  The November 10, 2020 Resolution in effect when Plaintiff posted the December 2020 Notice only created an affirmative defense limited to UD actions initiated in violation of the November 10, 2020 Resolution.

            Finally, Plaintiff raises a triable issue of fact as to whether the December 2020 Notice violated the Harassment and Retaliation Protections under the January 25, 2022 Resolution.  Under Section IX(I), harassing, intimidating or retaliatory acts by Landlords include, “Taking action to terminate any tenancy including service of any notice to quit or notice to bring any action to recover possession of a rental unit based upon facts which the Landlord has no reasonable cause to believe to be true or upon a legal theory which is untenable under the facts known to the Landlord.”  See Defendants’ RJN, Ex. 13, Section IX(I), p. 19. 

            Plaintiff submits evidence establishing that it had reasonable cause to believe that Defendants were in default on rent as of December 2020, and they had a legal theory upon which they could tenably demand the payment of rent.  Plaintiff establishes that Defendants ceased paying rent and unilaterally terminated the lease agreement on June 2020.  See Plaintiff’s Response to Defendants’ Separate Statement and Additional Material Facts, AMF Nos. 24-32.  Plaintiff also submits evidence that Defendants did not complete the necessary paperwork to obtain relief from the rental obligations under the County Guidelines.  Id. at AMF Nos. 21-30. 

            Plaintiff also submits copies of the applicable City of Santa Monica’s COVID Moratorium Guidelines adopted on Jun 17, 2020.  Under the City of Santa Monica’s guidelines, Defendants were not entitled to any rent moratorium based on their status as a “Commercial Tenant 2” entity.  Id. at AMF Nos. 34-37.  Under the City’s June 17, 2020 Guidelines, Plaintiff was not precluded from endeavoring to evict a Commercial Tenant 2 from the rental premises based on rent due from March 18, 2020 to July 31, 2020.  See Plaintiff’s RJN, Ex. 4, ¶13, p. 17. 

            Based on Plaintiff’s evidence,  triable issues of fact remain as to whether Plaintiff’s claims are barred by Section IX(C) of the January 25, 2022 LA County Resolution.  Defendants’ Motion for Summary Judgment is DENIED.