Judge Thomas D. Long, Case Number: 23STCV18452, Date: 2024-04-23 Tentative Ruling

On August 3, 2023, Plaintiff Bre Silver MF Roosevelt CA LLC filed this action against Defendant 727 West Seventh LLC. The Complaint alleges breach of lease and account stated.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.” (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.)

Defendant argues that the Complaint improperly alleges “Unpaid late charges, and other expenses, charges, and costs” because landlords could not add these charges during the COVID-19 Local Emergency Period, and other charges and expenses cannot be ascertained on the face of the Complaint. (Demurrer at p. 2.) Plaintiff seeks damages “according to proof”; it need not allege the exact amount of damages at this stage. (See Complaint at p. 8.) Moreover, Plaintiff does allege an unpaid balance of $228,189.21 as of July 18, 2023, which is a specific amount as of a specific date, and that date includes time after the February 1, 2023 expiration of the COVID-19 Local Emergency Period. (Complaint ¶¶ 22, 26, 31.)

Defendant argues that the rent ledger in Exhibit A of the Complaint includes a $300 flat charge for water, but the amendment in Exhibit E states that the landlord shall submit a bill to the tenant for which such amount is not to “exceed $300” or not to exceed the amount the utility company would have charged the tenant. (Demurrer at p. 2.) Defendant faults Plaintiff for not attaching any bills. (Ibid.) Plaintiff need not include evidence at the pleading stage, and the attached ledger’s $300 charge is not inconsistent with the provision that the amount is not to “exceed $300.”

Defendant argues that the amendment in Exhibit E provides that Plaintiff was in the process of having the water and sewage separately sub-metered for the Premises, but the rent ledger reflects billing from Plaintiff to Defendant. (Demurrer at p. 3.) According to Defendant, “that would suggest on the face of the complaint, the Plaintiff never fulfilled its agreement to submeter the property. This failure to perform in accordance with Paragraph 5 of the 4th Amendment is inconsistent with the allegation in Paragraph 27 on page 7 of the Complaint where the Plaintiff asserts that he has ‘duly performed all the terms.’” (Ibid.) If Defendant contends that Plaintiff did not fully perform its duties, that is a defense that Defendant can assert, not grounds for demurrer.

Finally, Defendant argues that Plaintiff inconsistently alleges that Defendant owed $243,789.45 and $228,189.21. (Demurrer at p. 3.) Plaintiff’s allegations are not inconsistent. The Complaint alleges, “As of July 7, 2023, Defendants owed the sum of $243,789.45 to Plaintiff under the Lease.” (Complaint ¶ 18.) Later, the Complaint alleges, “As of July 18, 2023, rent and charges in the sum of $228,189.21 were still due, owing, and unpaid from Defendants to Plaintiff.” (Complaint ¶ 22.) These different amounts are alleged as of different dates.

The demurrer is OVERRULED. Defendant is ordered to file an answer within 10 days. (California Rules of Court, rule 3.1320(j)(1).)

On March 21, 2024, Plaintiff’s counsel filed a Notice of Unavailability of Counsel designating April 4, 2024 through April 9, 2024 as a period of time during which counsel demands that no one will take any actions in the case and threatening sanctions if anyone does so.

The Court, on its own motion, strikes the Notice of Unavailability of Counsel under Code of Civil Procedure section 436, subdivision (b).

“It has apparently become common practice in the trial courts for litigants to file a ‘notice of unavailability’ under the guise of Tenderloin Housing Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299, 10 Cal.Rptr.2d 371. The notice purports to advise the other parties to the action—as well as the court—that the deliverer will not be available for a prescribed period of time and that no action may be taken during that period which adversely affects the unavailable party. To the extent this practice attempts to put control of the court’s calendar in the hands of counsel—as opposed to the judiciary—it is an impermissible infringement of the court’s inherent powers.” (Carl v. Superior Court (2007) 157 Cal.App.4th 73, 74-75.)

As the Carl court explained, “[n]othing in Tenderloin, however, expressly condones the practice that has grown up around its name. It has simply been made up.” (Id. at 76.)

On December 7, 2023, the Court ordered Plaintiff’s prior Notice of Unavailability of Counsel (filed November 7, 2023) stricken. Accordingly, Plaintiff’s counsel was on notice about the impropriety of filing a Notice of Unavailability of Counsel and should not have filed one yet again.

Counsel for Plaintiff is ordered to cease and desist from filing Notices of Unavailability in cases pending in Department 48 of the Stanley Mosk Courthouse.

An Order to Show Cause re: Sanctions of Up to $500.00 Under CCP 177.5 Against Attorney Ronald K. Brown, Jr. is scheduled for May 24, 2024 at 8:30 a.m.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court