Judge: John J. Kralik, Case: 24BBCV00437, Date: 2024-05-17 Tentative Ruling
Case Number: 24BBCV00437 Hearing Date: May 17, 2024 Dept: NCB
North
Central District
|
avb studio city
III-a, lp, Plaintiff, v. svetlana
ausheva, Defendant. |
Case No.: 24BBCV00437 Hearing Date: May 17, 2024 [TENTATIVE]
order RE: demurrer |
BACKGROUND
A.
Allegations
On February 22,
2024, Plaintiff AVB Studio City III-A, LP (“Plaintiff”) filed an unlawful
detainer complaint against Defendant Svetlana Ausheva (“Defendant”). The property at issue is located at 10945
Bluffside Drive #428, Studio City, CCA 91604.
Plaintiff is alleged to be the owner of the premises. Plaintiff alleges that on August 16, 2020, it
entered into a written agreement for an 11-month tenancy with Defendant. Plaintiff alleges that Defendant was served
with a 3-day notice to pay rent or quit on February 12, 2024 and the period for
Defendant to comply expired on February 15, 2024. Plaintiff seeks possession of the premises,
costs incurred in this proceeding, past due rent of $39,972.00, reasonable
attorney’s fees, forfeiture of the agreement, and damages at the rate of $111.03
per day from March 1, 2024.
B. Motion
on Calendar
On
April 16, 2024, Defendant filed a demurrer to the sole cause of action in the
complaint.
On May 8, 2024,
Plaintiff filed an opposition brief.
REQUEST FOR JUDICIAL NOTICE
With
the motion papers, Defendant requests judicial notice of: (A) the 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,
dated January 24, 2023 (hereinafter, “Resolution”); and (B) About Los Angeles
County’s COVID-19 Protections Resolution – Los Angeles County Consumer and
Business Affairs document. The request
is granted pursuant to Evidence Code, § 452(g)-(h).
DISCUSSION
CCP § 1161 defines
“unlawful detainer” in relevant part as follows:
2.
When the tenant continues
in possession, in person or by subtenant, without the permission of the landlord,
or the successor in estate of the landlord, if applicable, after default in
the payment of rent, pursuant to the lease or agreement under which the
property is held, and three days' notice, excluding Saturdays and Sundays and
other judicial holidays, in writing, requiring its payment, stating the
amount that is
due, the name, telephone number, and address of the person to whom the rent
payment shall be made, and, if payment may be made personally, the usual days
and hours that person will be available to receive the payment (provided that,
if the address does not allow for personal delivery, then it shall be
conclusively presumed that upon the mailing of any rent or notice to the owner
by the tenant to the name and address provided, the notice or rent is deemed
received by the owner on the date posted, if the tenant can show proof of
mailing to the name and address provided by the owner), or the number of an
account in a financial institution into which the rental payment may be made,
and the name and street address of the institution (provided that the
institution is located within five miles of the rental property), or if an
electronic funds transfer procedure has been previously established, that
payment may be made pursuant to that procedure, or possession of the property,
shall have been served upon the tenant and if there is a subtenant in actual
occupation of the premises, also upon the subtenant.
(CCP
§ 1161(2).) More simply: “The standard elements of an unlawful detainer action for nonpayment of rent
are (1) the tenant is in possession of the premises, (2) the tenant is in
default for nonpayment of rent, (3) the tenant has been properly served with
written notice to pay rent or quit of no less than three days, and (4) the
tenant's default continues after the three-day notice period has elapsed.” (Frazier v. Superior Court of
Los Angeles County (2022) 86 Cal.App.5th Supp. 1.)
Defendant demurs
to the sole cause of action for unlawful detainer, arguing that the complaint
and its exhibits fail to state sufficient facts and are uncertain. Defendant argues that pursuant to the LA
County Tenant Protections Resolution Post-Protections Resolution and the
extension of the resolution, Plaintiff was required to serve a 30-day notice on
Defendant to seek back rent incurred prior to March 31, 2023. Defendant argues that on February 12, 2024,
Plaintiff only served a 3-day notice for non-payment of rent for periods
beginning prior to March 31, 2023. Defendant
argues that the 3-day notice “reserves the right to seek back rent incurred
prior to March 31, 2023 at a later date.”
(Dem. at p.2.)
The complaint at
Exhibit 2 includes the Notice to Pay Rent or Quit. It seeks rent in the amount of $39,972.00
from the periods of March 1, 2023 to February 1, 2024. The Notice states: “Landlord reserves the
right to pursue any amounts not included in this notice in accordance with the
law.” (Notice at p.1.) The Notice seeks rent that was due in the
month of March 2023.
The Resolution
states at Section V, General Applicability of Resolution, states that the
Resolution regarding eviction notices, unlawful detainer actions, and actions
for repayment of rental debt accrued on or after March 4, 2020 shall expire on
March 31, 2023, but that tenant protections relating to nonpayment of rent following
the expiration of the Resolution shall survive the expiration of the
Resolution. (Resolution, § V(A)(1),
(3).) Section VI, Eviction Protections,
states that a tenant may assert an affirmative defense to a UD action for
nonpayment of rent if the tenant demonstrates an inability to pay rent due to
Financial Impacts Related to COVID-19 and the tenant has provided notice to the
landlord within 7 days after the date that rent was due, unless extenuating circumstances
exist that the tenant is unable to pay. (Resolution, § VI(A)(1), (a).) Following expiration of the Resolution, if
the landlord seeks to evict a residential tenant for rent incurred from
July 1, 2022 through March 31, 2023, the landlord must first serve on the
residential tenant a 30-day notice to cure or quit prior to initiating the UD
action. (Id., §
VI(A)(1)(c).) Residential tenants
seeking protection under the Resolution must provide a self-certification of
inability to pay rent within the timeframe (effective July 1, 2022 through
March 31, 2023, for a residential tenant whose household income is at 80% Area
Median Income or below). (Id, §
VI(B)(1).) For a residential tenant
whose household income is at 80% Area Median Income and was unable to pay rent
from July 1, 2022 through March 31, 2023, shall have up to 12 months thereafter
to repay such rental debt. (Id.,
§ VI(C)(1)(c).)
Defendant argues
that she submitted a self-certification to the landlord of COVID-19 crisis
financial hardship during February and March 2023, which is within the
Extension Protections Period, but that Plaintiff nevertheless served a 3-day
Notice to Pay or Quit, allegedly seeking the right to February 2023 and March
2023 back rents. Thus, it argues that
Plaintiff’s complaint filed on February 22, 2024 is improper as it does not
account for Defendant’s self-certification that extends the deadline to pay rent
and Plaintiff did not serve a 30-day notice.
Here, Defendant
raises extrinsic facts that were not included in the complaint. The complaint does not allege facts that
Defendant timely submitted a self-certification for the month of March 2023. (Dem.
at p.8.) Based on the allegations of the
complaint, the complaint’s exhibits, and the judicially noticeable documents,
the facts before the Court allege that Plaintiff is seeking rent from Defendant
for the periods of March 1, 2023 to February 1, 2024 and that a 3-day Notice
was provided to Defendant. As the Court
does not have any allegations in the complaint, exhibits to the complaint, or
judicially noticeable documents regarding whether Defendant timely submitted a
self-certification, the facts currently before the Court show that Plaintiff
has adequately alleged a UD action against Defendant based on a 3-day Notice;
there is nothing to indicate in the face of the complaint that COVID-19
protections or the Resolution apply. At
the pleading stage, the Court takes the allegations of the complaint as
true. The Court cannot, at the pleading
stage, consider Defendant’s extrinsic arguments that she submitted a
self-certification. Rather, Defendant
should raise such arguments as an affirmative defense or at the summary
judgment or trial stage when the Court can consider evidence outside the
pleadings.
Thus,
the demurrer to the complaint is overruled.
CONCLUSION AND ORDER
Defendant
Svetlana Ausheva’s demurrer to the complaint is overruled. Defendant is ordered to answer.
Defendant shall give notice of
this order.
DATED: May 17,
2024 ___________________________
John
Kralik
Judge
of the Superior Court