Judge: Michael Shultz, Case: 22CMCV00256, Date: 2022-10-13 Tentative Ruling
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Case Number: 22CMCV00256 Hearing Date: October 13, 2022 Dept: A
22CMCV00256
300 West Artesia, L.P., v. B&O Express, Inc., et al.
[TENTATIVE] ORDER
I.
BACKGROUND
This is an unlawful detainer action
filed on August 3, 2022, arising from Defendants’ alleged breach of a written
commercial lease signed on March 7, 2019 for a term of five years. Plaintiff
alleges that Defendants failed to pay rent and common area expenses for the
month of June. Plaintiff served Defendants with a three-day notice to pay rent
or quit. Defendants did not comply with the notice and remain in possession.
II.
ARGUMENTS
A. Demurrer filed September 13, 2022.
Defendants demur to the complaint
on grounds the multiple three-day notices to pay rent or quit are defective
because they improperly include common area maintenance (“CAM”) and late
charges, which do not constitute rent. Alternatively, Defendants ask for an to
quash service of the summons and complaint and dismissing the action.
Defendants also
argue that at the time the Plaintiff served the three-day notices in July 19,
2022, the COVID-19 moratorium was still in effect and required Plaintiff to
provide commercial tenants with notice of their rights under the Los Angeles
County COVID-19 Tenant Protections Resolution (“Resolution”).
B. Opposition filed September 30,
2022.
Plaintiff argues that a Delta
Motion to Quash is improper since Defendants are not challenging the
sufficiency of the allegations. CAM
charges were properly included since the lease agreement defines “rent” as “all
monetary obligations.” Additionally, COVID eviction protections previously
extended to commercial tenants expired on January 31, 2022. Plaintiff served
its three-day notices in July 2022. Defendants never asserted they were unable
to pay rent due to the effects of COVID-19.
C. Reply filed October 16, 2022.
Defendants argue that the
moratorium applied, and Plaintiff did not comply with its requirements.
Landlords are still required to provide commercial tenants with nine employees
or fewer with the required notices of rights through the end of this year.
Plaintiff did not comply with all elements necessary to support an unlawful
detainer.
III.
LEGAL STANDARDS
The bases for demurrer are limited
by statute and may be sustained in pertinent part on grounds of lack of
jurisdiction or failure to state facts sufficient to state a cause of action.
Code Civ. Proc., § 430.10. A demurrer “tests
the sufficiency of a complaint as a matter of law and raises only questions of
law.” Schmidt v. Foundation Health
(1995) 35 Cal.App.4th 1702, 1706. In testing the sufficiency of the complaint,
the court must assume the truth of (1) the properly pleaded factual
allegations; (2) facts that can be reasonably inferred from those expressly
pleaded; and (3) judicially noticed matters. Blank v. Kirwan (1985) 39
Cal.3d 311, 318. The court may not consider contentions, deductions, or
conclusions of fact or law. Moore v. Conliffe (1994) 7
Cal.4th 634, 638. Because a demurrer tests the legal sufficiency of a pleading,
the plaintiff must show that the pleading alleges facts sufficient to establish
every element of each cause of action. Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.
The court accepts “as true both
facts alleged in the text of the complaint and facts appearing in exhibits
attached to it. If the facts appearing in the attached exhibit contradict those
expressly pleaded, those in the exhibit are given precedence.” Mead v. Sanwa Bank California
(1998) 61 Cal. App. 4th 561, 567-568.
IV.
DISCUSSION
The court grants Defendants’
Request for Judicial Notice (“RJN”) of the operative County of Los Angeles
COVID-19 Tenant Protections Resolution of January 25, 2022. Evid. Code, § 452 subd. (c)
[permitting judicial notice of official acts of the legislative, executive and
judicial departments].
The Resolution provides that effective June
22, 2021, landlords were required to give commercial tenants with nine (9) employees or fewer “notice of their rights under the
Protections; (2) expand affirmative defenses to include protection from
enforcement of personal guarantees against any natural person for commercial
rental debt accrued during the Protections Period for commercial tenants with
nine (9) employees or fewer; and (3) specify that holdover and month-to-month
commercial tenants, unless otherwise exempted, are protected.” Resolution, page 5, ¶
4.
The “protections period” was
generally extended for all tenants through December 31, 2022. Resolution, page
6, ¶ III. Arguably, landlords were obligated to give tenants, commercial or
otherwise, notice of protections under the Resolution through the end of the year.
In a separate part of the Resolution applicable to “eviction protections,” the
Resolution provided that for commercial tenants, there would be no protections
from eviction after January 31, 2022. Resolution, page 10,
Part VI, subd. A.1.
The County’s Eviction Moratorium
Guidelines (“Guidelines”) are
instructive. In the section applicable to required notices, the Guidelines
expressly require that “through December 31, 2022, a Landlord is required to
provide notice to commercial Tenants with nine (9) or fewer employees of their
rights under these Protections within ten (10) days of serving an initial
notice of nonpayment.” Guidelines, page 8,
section 5.4 subd. C.1. Fairly read, while commercial tenants were no longer
protected from eviction after January 31, 2022, they were still entitled to
notice of their rights under the Resolution through the end of the year. This
construction is supported by the language providing that “a commercial tenant
with nine (9) employees or fewer, ‘may’ provide, and Landlords must accept, a
self-certification of inability to pay rent, and are required to provide notice
to the Landlord to this effect within the specified timeframe. Resolution, page 15, ¶
B, subd. 2.a. Without notice, commercial tenants would not be aware of their
right to provide self-certification of their inability to pay rent.
However, whether or not Defendants
were entitled to the County Resolution’s notices requires a factual
determination that Defendants have nine or fewer employees, which is not a fact
alleged on the face of the Complaint and cannot be resolved by demurrer. Defendants
submit the Declaration of Billy Lai, who attests that he has less than 10
employees. While the court may take judicial notice in connection with a
demurrer, “it may not judicially notice the truth of assertions in declarations
or affidavits filed in court proceedings." Bach v. McNelis (1989) 207 Cal.App.3d 852, 864–865
Notwithstanding the foregoing, Defendants
have not established Plaintiff is required to allege compliance with the County
Resolution to state a claim for unlawful detainer. A tenant is guilty of
unlawful detainer if the tenant continues in possession after default in the
payment of rent pursuant to the lease agreement and the tenant is served with
three days’ notice requiring payment, among other particulars. Code Civ. Proc., § 1161, subd. (2). A lessor must allege and prove proper service of the required
notice. Liebovich v. Shahrokhkhany (1997) 56 Cal.App.4th 511, 513.
The alleged facts must support the
following elements: (1) the tenant is in possession of the premises; (2)
possession is without permission; (3) the tenant is in default for nonpayment
of rent; (4) the tenant has been properly served with a written three-day
notice; and (5) the default continues after the three-day notice has elapsed. Borsuk v. Appellate Division of Superior Court (2015) 242
Cal.App.4th 607, 613. The verified complaint adequately
alleges facts supporting these elements. Complaint, ¶ 12 (tenant in possession
without permission) ¶ 10 (Defendants failed to pay rent), ¶ 11 (Plaintiff
served a three-day notice to pay rent or quit), ¶ 12 (Defendants remain in
default after the period expired); Exs. B - F. Additionally, the protections set forth in the
County’s Resolution “shall constitute an affirmative defense for a tenant in
any unlawful detainer action which shall survive the termination or expiration
of the Protections.” Resolution, “Remedies,”
page 20, Part XI, subd. C.
Defendants have not established
that inclusion of CAM charges in the three-day notices render the notices
defective. Defendants do not cite any authority that the notice can only demand
“rent.” Section 1161 of the Code of Civil Procedure requires that the three-day
notice to pay rent or quit "state the amount that is due.” Code Civ. Proc., § 1161, subd. (2). However, the term “amount” has been broadly construed to
“encompass any sums due under the lease or agreement under which the property
is held.” Canal-Randolph Anaheim, Inc. v. Wilkoski (1978) 78 Cal.App.3d
477, 492 [“We do not agree that a proper
notice may not include anything other than technical rent.”].
The lease agreement attached to
the Complaint reflects that the amount of rent due is the “base rent” to be
adjusted by a percentage of the common area operating expenses. Complaint, Exhibit
A, ¶ 1.5-1.6. Accordingly, the lease agreement encompasses CAM charges as part
of the amount due.
Defendants’ alternative motion to
quash is DENIED because Defendants are not attacking the pleading for want of
jurisdiction. The California Supreme Court stated that in the context of an
unlawful detainer action, “the motion to quash remains a limited procedural
tool appropriate where the court lacks personal jurisdiction because the
statutory requirements for service of process are not fulfilled, or the summons
is defective. (§§ 410.50, 412.20; Honda Motor Co., supra, 10 Cal.App.4th at p.
1048, 12 Cal.Rptr.2d 861.) A defendant may not use a motion to quash service of
summons under section 418.10, subdivision (a)(1) to contest any conceivable
defect or the merits of the allegations contained in an unlawful detainer
complaint. A defendant may instead make use of other motions: a demurrer,
motion to strike, or answer.” Stancil v. Superior Court (2021) 11 Cal.5th 381, 396.
V.
CONCLUSION
Based on the foregoing,
Defendants’ Demurrer to Complaint, or Alternatively, “Delta” Motion to Quash
Service of the Summons and Complaint is DENIED. Defendant is ordered to file an
answer within five days. Cal Rules of Court, Rule 3.1320.