Judge Ronald F. Frank, Case 21TRCV00689 2023-03-01 Tentative Ruling

Judge: Ronald F. Frank, Case: 21TRCV00689, Date: 2023-03-01 Tentative Ruling

Case Number: 21TRCV00689 Hearing Date: March 1, 2023 Dept: 8

Tentative Ruling¿

¿¿

HEARING DATE: March 1, 2023¿¿

¿¿

CASE NUMBER: 21TRCV00689

¿¿

CASE NAME: Emma Liz Properties LLC, et al v. Starline Tours of Hollywood¿¿¿

¿¿

MOVING PARTY: Defendant, Starline Tours of Hollywood, Inc.

¿¿

RESPONDING PARTY: Plaintiff, Emma Liz Properties, LLC

¿¿

TRIAL DATE: None set¿

¿¿

MOTION:¿ (1) Demurrer¿ to Second Amended Complaint is sustained with leave to amend

(2) Motion to Strike

Tentative Rulings: (1) SUSTAINED with 20 days leave to amend.

(2) The Motion to Strike is mooted by the Court’s ruling on the Demurrer

¿¿

I. BACKGROUND¿¿

¿¿

A. Factual¿¿

Plaintiff filed the Complaint on September 22, 2021. The First Amended Complaint was filed on December 20, 2021. On May 31, 2022, the Court sustained a demurrer to Plaintiff’s First Amended Complaint with leave to amend. On May 31, 2022, Plaintiff filed a Second Amended Complaint (“SAC”) alleging causes of action for: (1) Breach of Written Contract; and (2) Breach of Written Guaranty. The SAC is based on the following facts: Plaintiff is the lessor of premises located at 5260 W. 104th Street, Los Angeles, California. The lessees are Defendant Starline Tours of Hollywood, Inc. and Defendant Professional Fleet Services, Inc. (“PFS”). The premises is a commercial property that the parties agreed would be used for parking, repair, and maintenance of the lessees’ businesses. Defendants allegedly breached the lease and guaranty by failing to make the required payments.

Defendant now demurrers to the SAC and has filed a Motion to Strike.

B. Procedural¿¿

On August 1, 2022, Defendant, Starline Tours of Hollywood, Inc., filed a demurrer and motion to strike. On February 14, 2023, Plaintiff filed an opposition to both motions. On February 22, 2023, Defendant filed reply briefs to both oppositions.

¿II. GROUNDS FOR MOTION

Defendant demurs to the entire SAC claiming that it fails to state a claim and is uncertain. Defendant also demurs to the first cause of action in the SAC fails to state a claim and is uncertain. Defendant also moves to strike the entire SAC because it claims that it is a disguised supplemental complaint and Plaintiff never sought leave of court before filing.

III. REQUEST FOR JUDICIAL NOTICE

Defendant requested that this Court take judicial notice of the following:

1. Plaintiff's original Complaint filed in this action September 22, 2021. Attached hereto as Exhibit A is a true and correct copy of Plaintiff's Complaint filed September 22, 2021 in the above-entitled action.

2. Plaintiff's First Amended Complaint filed in this action on December 20, 2021. Attached hereto as Exhibit B is a true and correct copy of Plaintiff's First Amended Complaint filed December 20, 2021 in the above-entitled action.

3. Notice of Ruling on Defendant Starline Tours of Hollywood, Inc.'s Demurrer to Plaintiff's First Amended Complaint dated May 1 7, 2021. Attached hereto as Exhibit C is a true and correct copy of Notice of Ruling on Defendant Starline Tours of Hollywood, Inc.'s Demurrer to Plaintiff's First Amended Complaint dated May 17, 2021.

The Court grants Defendant’s request and takes judicial notice of the above.

IV. ANALYSIS¿

Here, Plaintiff’s SAC alleges that on or about February 2, 2019, Plaintiff, as lessor, and Starline and PFS, as lessees, entered into a written lease (the “Lease”) concerning those certain premises commonly known as 5260 W. 104^th Street, Los Angeles, California (the “Subject Property”). (SAC, ¶ 8.) Plaintiff further alleges that during the period of February 1, 2020 through December 1, 2021, defendants were obligated by the Lease to pay plaintiff monthly base rent in the following amounts: $18,540 per month for the period of February 1, 2022 to January 31, 2021 and $19,096 per month for the period of February 1, 2021 to December 31, 2021. (SAC, ¶ 9.) Plaintiff contends that Defendants breached the Lease by failing to pay plaintiff $198,536 of base rent that was due during the period of February 1, 2020 through December 1, 2021. (SAC, ¶ 10.) Plaintiff attached the base rent arrearages in an itemized ledger and attached a copy to the complaint as Exhibit 2. (SAC, ¶ 10.) Plaintiff also asserts that damages have occurred as a result of the breach.

In its demurrer, Defendant alleges that the SAC fails to state when the alleged breach or breaches occurred. Defendant contends that instead, the SAC confusingly alleges contradicting dates when breaches might have occurred. Specifically, Defendant points to how the SAC alleges that Defendants "failed to pay ... rent that was due during the period of February 1, 2020 through December 1, 2021..." (SAC, ¶ 10.) But Exhibits 2 and 4, referenced to support this allegation, reflects payments in full through April 2020. (SAC, ¶ 10, 28, Exhibits 2 and 4.) Furthermore, Defendant notes that the spreadsheet attached as Plaintiff s Exhibits 2 and included in Exhibit 4, refers to payments that were made by Defendants on June 23, 2020, July 2, 2020 and August 18, 2020. (SAC, Exhibits 2 and 4.) Complicating the matter further, Plaintiff alleges that the amounts set forth in that spreadsheet, attached to Plaintiff’s Three-Day Notice, became due three days after the same was served on May 23,2022. (SAC, ¶¶ 28, 29.)

Additionally, as Judge Tanaka previously pointed out, the First Amended Complaint altered and contradicted the original Complaint. The original Complaint alleged that Defendants failed to make full rent payments that were owed from December 1, 2019 to August 1, 2021, and that the amount owed was $132,278.00. (Complaint, ¶¶ 9, 10, 13.) However, in the First Amended Complaint, Plaintiff alleged that Plaintiff is entitled to payment from December 1, 2019 to December 1, 2021, and that the amount owed just for rent payments is now $243,536.00. (First Amended Complaint, ¶¶ 9, 10, 25.)

Defendant notes, as does the Court, that Plaintiff has attempted to clear up said confusion in the SAC. However, Defendant argues that while Plaintiff attempted to explain the variance between the amount alleged owed in the original Complaint of $132,278 the explanation only added to the confusion instead of resolving it. Plaintiff’s explanation is that the amount did not include rent increases, which is now alleged to be an increase of $540 per month from February 2020 to December 2020 ($5,940), and an increase of $1,096 for every month in 2021($13,152). Therefore, the alleged rent increase that was not previously accounted for, assuming this is the period of time for which Plaintiff is alleging a breach occurred, is $19,092. Plaintiff alleges that additional amounts for increased property taxes ($1,899.72), for increased insurance payments ($83) and a bank charge of $12 should have been added as well. However, if these amounts are added to the original number, the total becomes $153,364.72 and not the new amount allegedly owed of $200,518.72. This explanation is even more problematic since it does not seem to account for the additional $45,000 in payments Plaintiff now concedes were made also.

In opposition, Plaintiff claims that the difference between the Complaint alleged damages, the FAC alleged damages, and the SAC alleged damages are because each were for a different period of time and that such errors should not affect the merit of the case.

RULING:

The Court will sustain the Demurrer and grant leave to amend. In allowing Plaintiff to amend -- hopefully for the last time --the Court grants leave to fix the allegation of how much is owed, for which time period or periods, and when the breach or breaches occurred. Plaintiff should consider a chart to be included in the allegations or attached as an exhibit in a form suitable for presenting to the trier of fact. The chart would list in one column each item of claimed category of a failure to pay an item required by the contract, i.e., rent, taxes, insurance, Common Area Maintenance charges, etc. The columnar headings should specify the time periods involved, and the cells of the chart should contain the dollar amount claimed for the differing time periods, such as when a contractual rent increase kicked in to change the amount owed for monthly rent as of a specified date. The amended pleading should expressly account for payments received in reaching the total amount sought to be awarded, perhaps in its own row after a subtotal and before the final total. To the extent that a supplemental pleading might arguably be the proper method to address the “repairs” to the allegations, the Court hereby grants leave to include both amending and supplementing terms in a single third amended complaint.