Judge: Melvin D. Sandvig, Case: 22CHCV00262, Date: 2022-09-22 Tentative Ruling

Case Number: 22CHCV00262    Hearing Date: September 22, 2022    Dept: F47

Dept. F47

Date: 9/22/22

Case #22CHCV00262

DEMURRER TO THE ORIGINAL COMPLAINT

Demurrer filed on 6/15/22.

MOVING PARTY: Defendant Saliya De Silva

RESPONDING PARTY: Plaintiff Dennis Tuch as Trustee of the D&S Tuch Trust and Carol Lee Tuch as Trustee of the CLT Trust

NOTICE: ok

Demurrer is to the entire Complaint:

            1.  Unlawful Detainer

RULING: The demurrer is overruled.  Answer is due within 5 days.

On 4/18/22, Plaintiff Dennis Tuch as Trustee of the D&S Tuch Trust and Carol Lee Tuch as Trustee of the CLT Trust (Plaintiff) filed this commercial unlawful detainer action based on failure to pay rent against Defendant Saliya De Silva (Defendant). 

On 6/15/22, Defendant filed and served the instant demurrer to the complaint.  Plaintiff has opposed the demurrer.  No reply to the opposition has been filed by Defendant. 

Defendant’s and Plaintiff’s Requests for Judicial Notice (RJN) are granted.

The demurrer is based on the argument that the complaint fails to state a claim for unlawful detainer because rent is not yet due pursuant to Los Angeles Ordinance Number 186606 Section 49.99.3 which provides:

During 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 if the tenant is unable to pay rent due to circumstances related to the COVID-19 pandemic. These circumstances include loss of business income due to a COVID-19 related workplace closure, child care expenditures due to school closures, health care expenses related to being ill with COVID-19 or caring for a member of the tenant's household or family who is ill with COVID-19, or reasonable expenditures that stem from government-ordered emergency measures. Tenants shall have up to three months following the expiration of the Local Emergency Period to repay any rent deferred during the Local Emergency Period. Nothing in this article eliminates any obligation to pay lawfully charged rent. No Owner shall charge interest or a late fee on rent not paid under the provisions of this article.  (emphasis added)

(See Defendant’s RJN, Ex.A; Plaintiff’s RJN, Ex.C)

Plaintiff seems to admit that he owes due and unpaid rent to Plaintiff as Defendant states that he “does not dispute that, under the wording of the Ordinance, it will owe Plaintiff rent when the state of emergency concludes.”  (See Demurrer, p.6:10-11).  Defendant has failed to establish that Los Angeles Ordinance Number 186606 Section 49.99.3 provides a complete bar to Plaintiff filing a claim for unlawful detainer.

Rather, based on the plain wording of the ordinance, an owner is only prohibited from endeavoring to evict or evicting a commercial tenant for non-payment of rent during the Local Emergency Period, “if the tenant is unable to pay rent due to circumstances related to the COVID-19 pandemic.”  (See Los Angeles Ordinance Number 186606 Section 49.99.3 - Defendant’s RJN, Ex.A; Plaintiff’s RJN, Ex.C).  The ordinance goes on to state that “[n]othing in this article eliminates any obligation to pay lawfully charged rent.” 

As such, whether or not Defendant was/is unable to pay rent due to circumstances related to the COVID-19 pandemic which excuses the obligation to pay rent for the time being creates a question of fact which cannot be resolved on demurrer.