Judge: Helen Zukin, Case: 22SMCV01417, Date: 2023-02-17 Tentative Ruling
Case Number: 22SMCV01417 Hearing Date: February 17, 2023 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 moves for
judgment on the pleadings pursuant to Code Civ. Proc. § 438, 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. Defendant’s request
is unopposed and is GRANTED.
Legal Standard
A defendant may move for judgment on the pleadings on the grounds
that (1) the court has no jurisdiction of the cause of action alleged in the complaint,
or (2) the complaint does not state facts sufficient to constitute a cause of action
against that defendant. (C.C.P. § 438(c)(1)(B).) The grounds for a motion for judgment
on the pleadings shall appear on the face of the challenged pleading or from any
matter which the court has judicially noticed. (C.C.P. §¿438(d).) A motion may be
made even though the movant has already demurred to the complaint or answer, on
the same ground as is the basis for the motion for judgment on the pleadings, and
the demurrer has been overruled, “provided that there has been a material change
in applicable case law or statute since the ruling on the demurrer.” (C.C.P. § 438(g)(1).)
In reviewing a motion for judgment on the pleadings, the court
“must accept as true all material facts properly pleaded,” but “does not consider
conclusions of law or fact, opinions, speculation, or allegations contrary to law
or facts that are judicially noticed.” (Stevenson Real Estate Services, Inc.
v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215,
1219-1220.)
Analysis
Plaintiff argues Defendant’s
motion is procedurally improper. The Court agrees. Code Civ. Proc. § 438(g)
provides:
(g) The motion provided for in this section may be made
even though either of the following conditions exist:
(1) The moving party has already demurred to the complaint
or answer, as the case may be, on the same grounds as is the basis for the
motion provided for in this section and the demurrer has been overruled,
provided that there has been a material change in applicable case law or
statute since the ruling on the demurrer.
(2) The moving party did not demur to the complaint or
answer, as the case may be, on the same grounds as is the basis for the motion
provided for in this section.
Defendant here previously demurred
to the Complaint on the ground that Plaintiff’s eviction was barred by 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”). As
in its demurrer, Defendant’s motion here expressly contends Plaintiff’s
unlawful detainer action against it is barred by section VI.A.2 of the LACEM
which prohibits no-fault evictions.
Defendant does not contend there
has been a material change in applicable case law or statute since the Court’s
December 7, 2022, order overruling Defendant’s demurrer. Indeed, the only
material change apparent in Defendant’s motion is the recognition that the
LACEM protections expired on December 31, 2022. Defendant’s motion is thus barred
by the express terms of section 438(g)(1).
Code Civ. Proc. § 438 was enacted
by the Legislature in 1993, effective January 1, 1994. (1993 Cal ALS 456, 1993 Cal AB 58, 1993 Cal Stats. ch. 456.) Defendant’s
reliance on Board of Regents v. Davis
(1975) 14 Cal.3d 33 and Ion Equipment Corp. v. Nelson (1980) 110
Cal.App.3d 868 is thus misplaced as those cases were decided before section
438(g)(1) was in existence. As the Court explained in In re Alberto:
Formerly, an exception to the general rule that one trial judge
may not reverse a decision of another trial judge existed in the situation where
a motion for judgment on the pleadings followed the overruling of a demurrer. It
was, and in some courts still is, frequently the case that a judge presiding in
the law and motion department would be assigned the demurrer, whereas the motion
for judgment on the pleadings would typically be made before the judge assigned
for trial. The former rule permitting the trial judge to enter judgment on the pleadings
even though the law and motion judge had overruled a demurrer was premised on the
notion that a trial should be avoided if as a matter of law the complaint was legally
without merit. (See Ser-Bye Corp. v. C. P. & G. Markets (1947) 78 Cal.
App. 2d 915, 918 [179 P.2d 342]; see generally 6 Witkin, Cal. Procedure (4th ed.
1997) Proceedings Without Trial, § 172, pp. 586-587.)
By statute, a motion for judgment on the pleadings now may be
made only when “there has been a material change in applicable case law or statute
since the ruling on the demurrer.” (Code Civ. Proc., § 438, subd. (g)(1).)
(In re Alberto (2002) 102 Cal.App.4th
421, 430, fn. 4.) The express language of section 438(g)(1) thus supersedes any
contrary holdings in Board of Regents or Ion Equipment.
Plaintiff’s
reliance on Carlton v. Dr. Pepper Snapple Group, Inc. (2014) 228
Cal.App.4th 1200 is also misplaced. Carlton concerned whether a
defendant could bring a demurrer to an amended complaint on the same grounds as
a prior demurrer to the previous version of the complaint. The Court in Carlton
held where a party demurred to a cause of action for breach of contract asserted
in a First Amended Complaint and was overruled, that party was not prohibited
from bringing a demurrer to the same cause of action asserted in the Second
Amended Complaint. The question there was one of successive demurrers, which
there is no statutory prohibition against. Carlton offered no opinion as
to whether a party was free to ignore the plain and express language of Code
Civ. Proc. § 438(g)(1) and bring a motion for judgment on the pleadings on the
same grounds as asserted in a previously overruled demurrer without showing a material change in applicable case law or statute.
Defendant’s motion for judgment on
the pleadings is thus barred by Code Civ. Proc. § 438 and is DENIED.
Conclusion
Defendant’s motion for judgment on the pleadings is DENIED.