Judge Ronald F. Frank, Case Number: 23IWUD01852, Date: 2023-11-28 Tentative Ruling

Judge: Ronald F. Frank, Case: 23IWUD01852, Date: 2023-11-28 Tentative Ruling

Case Number: 23IWUD01852 Hearing Date: November 28, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: November 28, 2023¿¿

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CASE NUMBER: 23IWUD01852

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CASE NAME: John Lee v. Brian McCutcheon, et al

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MOVING PARTY: Defendants, Brian McCutcheon and Artemisa McCutcheon

RESPONDING PARTY: Plaintiff, John Lee

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TRIAL DATE: November 28, 2023

MOTION:¿ (1) Motion for Judgment on the Pleadings

Tentative Rulings: (1) DENIED

I. BACKGROUND¿¿

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A. Factual¿¿

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On August 18, 2023, Plaintiff, John Lee (“Plaintiff”) filed an unlawful detainer complaint against Defendants, Brian McCutcheon, Artemisa McCutcheon, and DOES 1 through 10. The Complaint alleges that Defendants failed to pay the rent for the month of August 2023. At the time of the rental obligation becoming due, Plaintiff asserts that the rent had been increased to $3,575 per month, an increase from the previous $3,250 per month. The instant motion asserts that a Three-Day Notice was served upon the Defendants claiming past rent due for the month of August 2023, in the sum of $3,575.

Previously, Defendants filed a demurrer against the Complaint, which was overruled by Judge Reinert in his October 16, 2023 minute order.

Defendants now file a Motion for Judgment on the Pleading.

B. Procedural¿¿

On October 24, 2023, Defendant filed a Motion for Judgment on the Pleadings. On October 30, 2023, Plaintiff filed an opposition. To date, no reply brief has been filed.

II. REQUEST FOR JUDICIAL NOTICE

Defendants, concurrently with their moving papers, requested this Court take judicial notice of the following document:

1. Notice to Increase Rent during Los Angeles County Eviction Moratorium Phase 2 (Exhibit 1)

2. Declaration of Notice of Service Pursuant to CCP 2015.5(a) (Exhibit 2).

The court GRANTS this request and takes judicial notice of the above.

III. ANALYSIS

A. Legal Standard

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.) The motion may not be supported by extrinsic evidence. (Barker v. Hull (1987) 191 Cal.App.3d 221, 236.)

When the moving party is a defendant, he must demonstrate either of the following exist:

(i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint.

(ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c)(a)(B)(i)-(ii).)

Additionally, a motion for judgment on the pleadings must be accompanied by a meet and confer declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed. (Code Civ. Proc., § 439.)

Pursuant to Los Angeles Municipal Code section 49.99.2A, “Until January 31, 2023, no Owner shall endeavor to evict or evict a residential tenant for non-payment of rent if the tenant is unable to pay rent due to circumstances related to the COVID-19 pandemic.” That end of the County Moratorium was passed by the Board of Supervisors effective January 27, 2023, and was the version of the Moratorium in effect on the date alleged in the Complaint to be the date the 3-day notice to pay rent or quit was served in this case. Service of a notice to pay rent or quit was defined in the Municipal Code as one of the acts by which a landlord or owner might “endeavor to evict” a residential tenant.

Defendants’ Motion for Judgment on the Pleading is made on the following grounds: (1) Defendants claim the Complaint as a whole states facts insufficient to constitute a cause of action; (2) the defective declaration of notice of service as to the 3-day notice violates Code of Civil Procedure § 2015.5(a) alleged to be served on Defendants and attached to the complaint and thereby fails to state facts sufficient to constitute any cause of action; (3) Plaintiff’s email demanding rent be increased from $3,250 to $3,579 was served during the Los Angeles County Eviction Moratorium and during a rent freeze, and Plaintiff has collected a $325 per month rent increase for 16 months; and (4) Plaintiff’s complaint at paragraph 6 admits the rent was increased, admits Defendants were subject to the Tenant Protection Act in paragraph 7, and thus fails to state a cause of action.

The Complaint as a Whole

First, Defendants argue that the complaint as a whole fails to state facts sufficient for a cause of action for unlawful detainer. As Judge Reinert found in the hearing on the demurrer, this is not so. The necessary elements for an unlawful detainer cause of action are: (1) that the tenant is in possession of the premises; (2) that the tenant’s continued possession is without the landlord’s permission; (3) that the tenant is in default for nonpayment of rent; (4) that the tenant was properly served with the 3-day notice; and (5) that the default continues after the notice period has elapsed. (Code Civ. Proc., §1161 (2); Borsuk v. Appellate Division of Superior Court (2015) 242 Cal.App.4th 607, 613.) Each of these elements is present in Plaintiff’s Complaint. As such, the Motion for Judgment on the Pleadings is DENIED as to this issue.

Service of the Three-Day Notice

Defendants argue that the Three-Day notice violations Code of Civil Procedure § 2015.5(a), and has a defective declaration of notice of service. Code of Civil Procedure § 2015.5(a) requires the certification or declaration attached to the proof of service to be in substantially the following form: “(a) If executed within this state: ‘I certify (or declare) under penalty of perjury that the foregoing is true and correct’: ____________(Date and Place) (Signature).” Here, such a verification is present, as evidenced by Plaintiff’s Exhibit 3 to the Complaint, signed by Guillermo Verjan. That proof of service indicates service by posting and mailing as permitted by Code of Civil Procedure section 1162. As such, on these grounds, Defendants’ Motion for Judgement on the Pleadings is DENIED.

Moratorium

Next, Defendant argues that Plaintiff’s increase in rent during the County Moratorium constitutes a failure of Plaintiff to state a claim for unlawful detainer. Per the Moratorium, an alleged violation of its provisions is an affirmative defense to a UD, so the Defendant must both plead and prove the violation. (LA County Moratorium ¶ XI.C.) Here, the Court does not understand Defendants’ argument about the 16 months of increased rent, and Defendants’ moving papers do not explain their argument. It appears that Plaintiff’s action is only in reference to a failed payment for August 2023, which occurred after the expiration of Los Angeles County’s Moratorium. Had the 3-day notice sought to evict Defendants for the 16 months dating back to 2022 when the County moratorium was still in effect, then the increase in 2022 might give Defendants a basis for this motion. But the Complaint and its attached 3-day notice only seek to evict Defendants for a failure to pay a single month of rent in August 2023, after the moratorium as to failure to pay rent grounds for an eviction had expired. As such, the Motion for Judgment on the Pleadings is DENIED as to this issue.

Rental Increase Generally

The Court does not fully understand how or why Defendant is arguing that Plaintiff admitting the rental increase in his Complaint somehow renders the complaint devoid of facts to constitute a cause of action for unlawful detainer. The Court interprets Defendants’ argument to be an assertion that the $325 monthly increase occurred in 2022, when the moratorium on rental increases may have been in effect, and that the increase 16 months ago was void at the time. Although the Court understands that Defendants are moving in pro per, the purpose of a Motion for Judgment on the Pleadings is very similar to that of the demurrer and tests the sufficiency of the Complaint on its face. Here, Plaintiff has successfully pleaded a claim for unlawful detainer. As such, the motion is DENIED.