Judge Stephen P. Pfahler, Case 22VEUD00174 2022-09-20 Tentative Ruling

On February 24, 2022, Plaintiff 5975-5999 Topanga Canyon Blvd. filed a complaint for unlawful detainer against Defendant, Woodland Hills Medical Clinic II, Inc. A notice of related cases was filed with 21STCV37556. On March 17, 2022, the court deemed 22VEUD00174 and 21STCV37556 related, thereby leading to the assignment of all cases to Department 47. On March 21, 2022, Plaintiff filed a peremptory challenge, thereby leading to the reassignment of the case to Department 49 on March 22, 2022.

On March 28, 2022, the court specially set the motion for reconsideration challenging the 170.6 challenge of Judge Sandvig in Department 47. The motion for reconsideration was denied on June 2, 2022, and the action therefore remains assigned to Department 49.

On June 9, 2022, the court sustained the demurrer to the complaint with 15 days leave to amend. Plaintiff filed a first amended complaint on June 23, 2022.

The court takes notice of the orders and notice, but not the content of any orders or notice for purposes of ruling on the subject demurrer. The court declines to take judicial notice of any waiver, screen shots, websites, and all other guidelines.

Defendant, Woodland Hills Medical Clinic II, Inc. submits the subject demurrer to the unlawful detainer complaint on grounds that Plaintiff fails to allege and articulate a viable theory of relief. Plaintiff in opposition contends the demurrer improperly relies on extrinsic reference and the operative complaint properly states a claim for relief based on violations of the Americans with Disabilities Act (ADA), the Unruh Act, and other statutes. In reply, Defendant asserts Plaintiff has ignored Defendant’s arguments and reiterates that Plaintiff has failed to plead a claim for relief.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

The court acknowledges the extensive history of the parties dispute, which at least in part originates from the positions of the ex-spouses in the subject action: Ahang Mirshojae, manager of 5975-5999 Topanga Canyon Blvd., and Dr. Hamid Mirshojae, operator of Woodland Hills Medical Clinic II, Inc.^{^[2]} The complaint itself seeks unlawful detainer based on alleged breach of the lease terms regarding use of the premises; no claim for failure to pay rent applies. The court therefore need not consider any moratorium restrictions.

Like the prior demurrer, the notice to quit again incorporates portions of paragraphs seven and eight from the lease. Paragraph seven, Restrictions on Use, provides in part: “Tenant shall not use the Premises in any manner that will increase risks covered by insurance on the Premises and result in an increase in the rate of insurance or a cancellation of any insurance policy, even if such use may be in furtherance of Tenant’s business purposes.” Paragraph eight, Waste, Nuisance, or Unlawful Activity states in relevant part: “Tenant shall not allow any waste or nuisance on the demised premises, or use or allow the demised premise to be used for any unlawful purposes.” Attachment 17 to the complaint articulates said breach(es) based on the alleged performance of “outdoor services on the sidewalks or parking areas of the” premises, “without required permits, authorizations or compliance with California Department of Public Health or other agency requirements,” certain “Los Angeles County Code Chapters…, ” without a “valid Covid-19 business permit,” and/or approval from “the Department of Regional Planning.” Said operations “especially” impacted the “handicapped parking spot,” due to the placement of “shades over an entire handicapped parking space” thereby violating the Americans with Disabilities Act, as well as the Unruh Act. The outdoor area is admittedly used as an outdoor Covid-19 testing clinic. [Attachment 17, ¶ 17.3(1-5), (7).]

The request for judicial notice also provides guidelines regarding Covid-19 testing guidelines and suggested protocols. The court declines to consider the propriety of the clinic operations, and will limit the demurrer as to the validity of the unlawful detainer complaint relative to the lease terms.^{^[3]}

Fundamentally, Defendant challenges the core basis of unlawful detainer complaint: whether the alleged violations of the ADA, Unruh Act, and allegedly unpermitted operations, violates the two lease terms cited in the notice to quit. Given Plaintiff frames the issues as exactly arising from said two provisions, the court strictly reviews the operative complaint relative said lease terms.

Preliminarily, the court finds no support for any finding of increased insurance risks. Plaintiff has now twice failed to include allegations supporting this claim or support in the opposition. The demurrer is therefore sustained on this ground. The court finds no basis for leave to amend.

As for the waste claim, while the first amended complaint lacks a specific statutory basis on the waste claim, the court finds the language of Code of Civil Procedure section 1161 instructive.

Any tenant, subtenant, or executor or administrator of that person’s estate heretofore qualified and now acting, or hereafter to be qualified and act, assigning or subletting or committing waste upon the demised premises, contrary to the conditions or covenants of the lease, … or using the premises for an unlawful purpose, thereby terminates the lease, and the landlord, or the landlord’s successor in estate, shall upon service of three days’ notice to quit upon the person or persons in possession, be entitled to restitution of possession of the demised premises under this chapter...

For purposes of the demurrer, the court accepts the veracity of the allegations regarding the improper utilization of spaces set aside for mobility impaired invitees, as well as the alleged provision of services for the provision of medical services. Nevertheless, the lease incorporated into the operative complaint specifically allows for the operation of a medical clinic, which may reasonably include the performance of diagnostic testing.

“An action for damages resulting from waste can only be proved ‘by evidence of acts which injuriously affect the market value of the property.” (Citations.) Such evidence must show that the market value is substantially or permanently diminished or depreciated. (Citation.) Accordingly, a similar showing is required to sustain an action for unlawful detainer based specifically on allegations of waste.” (Rowe v. Wells Fargo Realty Services, Inc. (1985) 166 Cal.App.3d 310, 319 [internal quotation marks omitted].)

The court finds insufficient allegations supporting any underlying finding of waste based on the placement of “shade” tents in an outdoor parking lot, thereby impacting certain ADA designated spaces and/or interfering with customer access. The court also finds no showing of waste based on alleged code or unpermitted activity violations. Even if waste were properly alleged based on ADA and/or the code and unpermitted activity violations, nothing in the allegations supports proceeding with the forfeiture claim.

Unless the lease specifically limits the use of the property to a particular purpose, or that restriction is necessarily inferred from the language which is employed, the lease may not be forfeited on account of the mere use of the property for another purpose even though that be an illegal use prohibited by statute, for the reason that forfeitures of leases are not favored by the law. But under such circumstances the lessor will be compelled to resort to a suit for damages or for injunctive relief to compensate him or to prevent a continued unauthorized use of the premises.

The court therefore finds Plaintiff cannot allege a basis for forfeiture due to the waste claims based on the allegations in the operative complaint. The court additionally finds Plaintiff cannot allege new or different claims to allege a claim based on waste.

The court refers the parties to the court operated website for any and all future motion hearing dates, and will no longer list any future dates to cases involving these parties.

^{^[1]}The court declined to consolidate the cases on August 11, 2022.

^{^[2]}The lead case, Hamid Mirshojae v. Ahang Mirshojae, et al. filed on October 12, 2021 alleges breach of settlement agreement, implied contractual indemnity, and breach of lease. Dr. Mirshojae contends the lead case also involves efforts by Ahang to terminate the lease, as well as other improper conduct not pertinent to the subject hearing. A portion of the more than 125 pages of documents presented in the request for judicial notice contain prior court orders involving the parties’ litigation in other parts of Los Angeles County, which Defendant submits in support of accusations of misconduct in prior actions.

^{^[3]}The court also declines to consider the alleged retaliatory conduct motivating the subject action and/or alleged “misconduct” for purposes of ruling on the demurrer.