Judge: Helen Zukin, Case: 22SMCV01417, Date: 2022-12-07 Tentative Ruling

Case Number: 22SMCV01417    Hearing Date: December 7, 2022    Dept: 207

Background

Plaintiff Douglas Emmet 1997, LLC (“Plaintiff”) brings this unlawful detainer action against Defendant Ruttenberg IP Law (“Defendant”) concerning commercial real estate owned by Plaintiff and located at 1801 Century Park East, Suite 1920, Los Angeles, California 90067. Plaintiff alleges Defendant originally leased the subject property pursuant to a fixed term lease, which the parties subsequently agreed to extend pursuant to several written amendments. Plaintiff claims the lease term eventually expired and pursuant to the term of the parties’ agreement, the lease converted to a month-to-month tenancy terminable at will upon notice by either party. Plaintiff claims it gave Defendant the requisite notice to terminate the agreement and Defendant has improperly refused to surrender possession.

Defendant brings this demurrer to Plaintiff’s Complaint pursuant to Code Civ. Proc. §  430.10(e), arguing Plaintiff’s action is barred by an eviction moratorium promulgated by the County of Los Angeles.

Request for Judicial Notice

Defendant requests the Court take judicial notice of the January 25, 2022, Resolution of the Board of Supervisors of the County of Los Angeles Further Amending and Restating the County of Los Angeles Covid-19 Tenant Protections Resolution. Plaintiff requests the Court take judicial notice of two executive orders promulgated by the Office of the Governor of the State of California and an information bulletin issued by the City of San Francisco. Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable. (StorMedia Inc. v. Superior Court (1999) 20 Cal. 4th 449, 457, fn. 9.) Taking judicial notice of a document is not, therefore, the same as the court accepting the truth of the document’s contents or accepting a particular interpretation of its meaning. (See Middlebrook-Anderson Co. v. Southwest Sav. & Loan Assn. (1971) 18 Cal. App. 3d 1023, 1038.) Subject to these limitations, the parties’ requests for judicial notice are GRANTED

Demurrer Standard

When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)

Analysis

Defendant’s demurrer is based entirely on the applicability of The Los Angeles County Eviction Moratorium as amended and restated by the January 25, 2022, Resolution of the Los Angeles County Board of Supervisors (“LACEM”). Defendant contends Plaintiff’s unlawful detainer action against it is barred by section VI.A.2 of the LACEM which prohibits no-fault evictions:

No-Fault Termination of Tenancy or Occupancy. A Tenant shall not be evicted where grounds for terminating the tenancy or occupancy is not based on any alleged fault by the Tenant, including, but not limited to, those stated in Code of Civil Procedure section 1161 et seq., Civil Code section 1946.2 et seq., and Chapters 8.52 and 8.57 of the County Code. No-Fault termination of tenancy or occupancy also includes the intent to demolish or to substantially remodel the real property.

(Ex. A to Defendant’s RJN at § VI.A.2 [underline in original].) Defendant argues this unlawful detainer action “is a no-fault eviction of a commercial tenant” which is “premised on the no-fault termination of a month-to-month tenancy.” (Demurrer at 2.)

Plaintiff argues the moratorium on no-fault evictions set forth in the LACEM expired as to commercial tenants on January 31, 2022, citing language in the LACEM stating “FOR COMMERCIAL TENANTS, THERE SHALL BE NO FURTHER EVICTION PROTECTIONS AFTER JANUARY 31, 2022. (Ex. A to Defendant’s RJN at § VI.A.1.) However, as Defendant points out in its reply, this language appears only the section of the LACEM concerning evictions for nonpayment of rent. (Id.) As such, this language does not limit the applicability of section VI.A.2 concerning no-fault evictions.

However, the Court finds section VI.A.2 does not apply to Plaintiff’s action by its own express terms. As set forth above, the LACEM specifically defines no-fault evictions as those which are not based on any alleged fault by a tenant such as those contained in Code Civ. Proc. § 1161. Code Civ. Proc. § 1161(1) provides for the eviction of a tenant who “continues in possession, in person or by subtenant, of the property, or any part thereof, after the expiration of the term for which it is let to the tenant.”

Plaintiff’s Complaint alleges the parties had a fixed term lease for the property, which converted to a month-to-month lease subject to termination by Plaintiff upon 60 days’ notice. (Complaint at ¶8-13.) Plaintiff states it provided Defendant with the requisite 60 days’ notice to terminate the month-to-month lease and Plaintiff has refused to relinquish possession of the property as required by the parties’ agreement. Such claims have been held to arise under Code Civ. Proc. § 1161(1). In Palmer v. Zeis (1944) 65 Cal.App.2d Supp. 859, plaintiff leased a property to the defendant pursuant to a month-to-month tenancy. The Court held plaintiff’s notice of termination of the tenancy, followed by the defendant’s refusal to relinquish possession, triggered the application of section 1161(1):

By the giving of the notice pleaded here, therefore, the defendants' tenancy of the property was terminated. Their continuance in possession after the termination date fixed in the notice was “after the expiration of the term for which it is let to him,” within the meaning of subdivision 1 of section 1161 of the Code of Civil Procedure, and plaintiff can maintain an unlawful detainer proceeding under that subdivision,

(Id. at 862.)

Plaintiff’s action is based on Defendant’s alleged refusal to relinquish possession following Plaintiff’s service of notice terminating the month-to-month tenancy. Under Palmer, such actions arise under Code Civ. Proc. § 1161(1). As section VI.A.2 of the LACEM expressly defines “no-fault” evictions to exclude those based on grounds set forth in Code Civ. Proc. § 1161 et seq., Plaintiff’s action falls outside the scope of the moratorium set forth in section VI.A.2 of the LACEM.

As the Court has determined the LACEM does not bar Plaintiff’s claim, it need not address Plaintiff’s argument that the LACEM is preempted by state law and declines to do so.

Defendant has put forth no other grounds for demurrer. Accordingly, as the Court has determined the LACEM does not bar Plaintiff’s action, Defendant’s demurrer is OVERRULED.

Conclusion

Defendant’s demurrer is OVERRULED.