Judge: Malcolm Mackey, Case: 22STCV19834, Date: 2022-09-28 Tentative Ruling
Case Number: 22STCV19834 Hearing Date: September 28, 2022 Dept: 55
HANCOCK
S-REIT LA CORP. v. CITY CENTURY, LLC 22STCV19834
Hearing Date: 9/28/22,
Dept. 55
#7: DEMURRER TO UNLAWFUL DETAINER COMPLAINT.
Notice: Okay
Opposition
MP:
Defendant
RP:
Plaintiff
Summary
On 6/17/22, Plaintiff HANCOCK S-REIT LA CORP. filed a
Complaint for Unlawful Detainer, alleging that a commercial tenant is in breach
of a written lease, due to failures to pay rent beginning in
December 2021, and that the lessor, in an abundance of caution, had waited
until the Covid-related eviction moratorium
ended.
MP
Positions
Moving party requests an order sustaining the demurrer
to the Complaint, on grounds including the following:
·
Plaintiff
is inappropriately seeking to collect Rent, as defined in the Lease, in
violation of Section 49.99.3 of the City of Los Angeles Ordinance No. 186606,
entitled Prohibition on Commercial Evictions, which states, “[d]uring the Local
Emergency Period and for three months thereafter, no Owner shall endeavor to
evict or evict a tenant of Commercial Real Property for non-payment of rent
during the Local Emergency Period…”
·
The Local Emergency Period is in effect. The Eviction Moratorium Ordinance provides
that “Tenants shall have up to three months following the expiration of Local
Emergency Period to repay any rent deferred ruing the Local Emergency Period.”
·
The unlawful detainer action is improper
and premature until the City Council of Los Angeles, or the Mayor lifts the
Local State of Emergency.
·
Pursuant to Section 49.99.1 of the
Eviction Moratorium Ordinance, “Endeavor to Evict” is defined as conduct where
an Owner lacks a good faith basis to believe that a tenant does not enjoy the
benefits of the article.
·
Defendant provided Plaintiff with written
notice that Tenant could not pay rent for Covid-19 reasons (judicial notice,
ex. 2).
·
Legislative intent, as stated by Mr.
Feuer, City Attorney, and David Michaelson, Chief Assistant City Attorney, is
that owners initiate the eviction process against tenants protected by the
City’s new law.
·
In a tentative ruling in the case
Northwestern Engineering Company v. Alai, No. 21SMCV01573, by Hon. Judge Elaine
W. Mandel, the tenant prevailed in a motion for summary judgment in a
commercial unlawful detainer case. Defendant cited the January 25, 2022
Resolution for COVID-19 protections under the City Ordinance.
RP
Positions
Opposing party advocates overruling, for reasons
including the following:
·
Defendant has the burden to address the
affirmative defense, not Plaintiff.
·
"Commercial Real Property" is
defined to include, "any parcel of real property that is developed and
used either in part or in whole for commercial purposes. This does not include
commercial real property leased by a multi-national company, a publicly traded
company, or a company that employs more than 500 employees." LAMC Sec.
49.99.1(A). Defendant is not the kind of small, domestic commercial tenant who
may invoke the protections of the City Ordinance for actions based on rent they
were unable to pay during the pandemic. Defendant holds itself out to be the
affiliate of the international Chinese real estate developer, Shenglong Group.
Defendant advertises that is has $1.5 billion dollars of development in its
pipeline and is currently developing a billion dollar project in downtown Los
Angeles.
·
Defendant will not be able to prove an
inability to pay rent. The City
Moratorium applies to commercial tenants that are "unable to pay rent due
to circumstances related to the COVID-19 pandemic…" Sec. 49.99.3.
Tentative
Ruling
The demurrer is overruled.
All requests for judicial notice are denied.
The affirmative defense of Covid-19 immunity from
eviction is not fully and necessarily revealed by the Complaint, or legitimate
judicial notice, as required in order to sustain the demurrer. For examples, missing defense elements are
(1) tenant service of a declaration of inability to pay rent due to Covid, (2) the
actual inability to pay rent, and (3) the nature of the business as to size.
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. “‘[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.
Both sides unjustifiably have gone far beyond the
limits of judicial notice. 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. “‘[J]udicial
notice of matters upon demurrer will be dispositive only in those instances
where there is not or cannot be a factual dispute concerning that which is
sought to be judicially noticed.’” Unruh-Haxton
v. Regents of Univ. of Cal. (2008) 162 Cal.App.4th 343, 365.
"'When judicial notice is taken of a document ...
the truthfulness and proper interpretation of the document are
disputable." Aquila, Inc. v.
Sup. Ct. (2007) 148 Cal.App.4th 556, 569.
A court cannot take judicial notice of self-serving hearsay
allegations. Childs v. State of
California (1993) 144 Cal.App.3d
155, 163. “The activities of a private corporation, like
those of a natural person, are not among the facts of which courts take judicial
notice….” Oakland v. Darbee
(1951) 102 Cal. App. 2d 493, 501. “[I]f
the information on the Web site is reasonably disputed by the parties, it is
not subject to judicial notice.” Scott
v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 761. Courts may not take judicial notice of the
contents of Internet sites and blogs, but may as to their existence. Ragland v. U.S. Bank National Assn.
(2012) 209 Cal.App.4th 182, 194. Letters
are not properly the subject of judicial notice, where the contents do not fall
within the lists in Evidence Code sections 451 and 452, or authorizing case
law. Tenet Healthsystem Desert, Inc.
v. Blue Cross of Cal. (2016) 245 Cal.App.4th 821, 836. A Court declined to take judicial notice of a
letter, as not falling within any categories listed in Evidence Code Sections
451 and 452. Ross v. Creel Printing
& Publishing Co., Inc. (2002) 100 Cal. App. 4th 736, 744. The truth of the contents of a news article
is not judicially noticeable. Ragland
v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194; Walgreen Co. v. City and County of San
Francisco (2010) 185 Cal.App.4th 424, 443;
In re Noreen G. (2010) 181
Cal.App.4th 1359, 1390 n.13. While
courts may take judicial notice of official acts and public records, that does
not include the truth of the matters asserted in the documents. Arce ex rel. Arce v. Kaiser Found. Health
Plan, Inc. (2010) 181 Cal.App.4th 471, 482;
Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th
556, 569; Mangini v. R.J. Reynolds Tobacco Co.
(1994) 7 Cal.4th 1057, 1063, overruled on
other grounds by In re Tobacco
Cases II (2007) 41 Cal.4th 1257; Ragland
v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193 (declining to take judicial notice of
contents of audit report of Office of the Inspector General of the U.S. Dept.
of the Treasury). Judicial notice
requests may be denied based upon lack of relevance. Kashian v. Harriman (2002) 98
Cal.App.4th 892, 901 n.3; Ragland
v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194; Barratt Amer., Inc. v. City of San Diego
(2004) 117 Cal. App. 4th 809, 812 n. 2 (court denied judicial notice of city
resolutions as being irrelevant to question involved in demurrer). Judges can take judicial notice of the
existence of judicial opinions and verdicts from other cases, but not of the
truth of hearsay statements from them. Johnson
& Johnson v. Sup. Ct. (2011) 192 Cal.App.4th 757, 768.