Judge: Malcolm Mackey, Case: 22STCV14252, Date: 2022-12-13 Tentative Ruling

Case Number: 22STCV14252    Hearing Date: December 13, 2022    Dept: 55

YMCA ASSOC. OF METRO. L. A. v. 6600 SELMA AVE., LLC          22STCV14252

Hearing Date:  12/13/22,  Dept. 55

#6:   DEMURRER TO COMPLAINT.  

 

Notice:  Okay

Opposition

 

MP:  Defendant 6600 SELMA AVE., LLC.

RP:  Plaintiff

 

 

Summary

 

On 4/28/22, Plaintiff YMCA ASSOC. OF METRO. L. A. filed a Complaint alleging that defendants, including the lessor and guarantors, are liable for unpaid rent as to a commercial premises.

 

 

MP Positions

 

Moving party requests an order sustaining the demurrer to the Complaint, on grounds including the following:

·         Plaintiff is seeking damages for unpaid rent for during, before and after the pandemic moratorium period.

·         County of Los Angeles’ COVID-19 Resolution 1.25.2022  (1) bars commencement and litigation of a commercial unlawful detainer action until January 31, 2023, and (2) bars all actions on commercial lease guarantees until the same time. Also, the Resolution bars contract actions for nonpayment of rent accruing between March 4, 2020, through January 31, 2022. Per Resolution section VI, subsection C, a commercial tenant has until January 31, 2023 to pay unpaid rent that accrues between March 4, 2020, through January 31, 2022.

·         Allowing the lawsuit to proceed in a piecemeal manner, as to rent due before and after the Protection Period may result in multiple and inconsistent judgments, violating the one-judgment rule.

 

 

RP Positions

 

Opposing party advocates overruling, or leave to amend, for reasons including the following:

 

·         County Resolution only protects commercial tenants’ rent from March 4, 2020 through January 31, 2022 that went unpaid “due to Financial Impacts Related to COVID-19.”  But the Court is not authorized to take judicial notice of: “The fact that the sole managing member of Defendant 6600 Selma Ave., LLC gave notice to Plaintiff of the LLC’s inability to pay rent due to Covid-19.”

·         The County Resolution’s repayment protections do not prevent suit from being filed; at most, in certain circumstances, they can provide an affirmative defense to actions seeking to recover back rent.

·         Complainants have no obligation to plead around affirmative defenses.

 

 

Tentative Ruling

 

The demurrer is overruled. 

Defendant shall file an Answer not later than February 1, 2023 (i.e., a date after County of Los Angeles’ COVID-19 Resolution 1.25.2022, and the one-judgment rule, will become moot).

There can be only one final judgment given a policy to avoid piecemeal dispositions of actions.  Walton v. Mueller (2009) 180 Cal. App. 4th 161, 172.

The demurrer is not even close to being meritorious.  The affirmative defense is not shown by the Complaint or legitimate judicial notice.

Modernly, a demurrer based upon a defense lies only where it was revealed on the face of the complaint or by judicial notice. E.g.,  Union Carbide Corp. v. Sup. Ct. (1984) 36 Cal. 3d 15, 25.

The Court denies the defense request to judicially notice the factual assertion that Defendant gave notice of its inability to pay rent due to Covid-19.

Judicial notice does not require acceptance of the truth of factual matters that might be deduced therefrom.  Cruz v. County of Los Angeles (1985) 173 Cal. App. 3d 1131, 1134. 

Even assuming, arguendo, that judicial notice is appropriate, the affirmative defense does not negate all date periods of rent owed, and thus fails to dispose of an entire claim.

“‘[A] demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense.’”  McKenney v. Purepac Pharmaceutical Co.  (2008) 167 Cal.App.4th 72, 78-79.  An entire cause of action must be barred by the defense.  Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 274.  Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged.  Poizner v. Fremont General Corp.  (2007) 148 Cal.App.4th 97, 119 (“A demurrer must dispose of an entire cause of action to be sustained.”);  Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046;  Caliber Bodyworks, Inc. v. Sup. Ct.  (2005) 134 Cal.App.4th 365, 384-85,  disapproved on other grounds by  ZB, N.A. v. Sup.Ct. (2019) 8 Cal. 5th 175, 196 n. 8.

Finally, Plaintiff has no obligation to anticipate and address an affirmative defense, or the Resolution, in the Complaint.

Plaintiffs are not required to address and anticipate affirmative defenses in their pleadings, unless already revealed.  E.g., Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 825.