Judge: Yolanda Orozco, Case: 22STCV24889, Date: 2023-02-23 Tentative Ruling

Case Number: 22STCV24889    Hearing Date: February 23, 2023    Dept: 31

MOTION FOR JUDGMENT ON THE PLEADINGS  

TENTATIVE RULING 

Defendant’s Motion for Judgment on the Pleadings is GRANTED IN PART. 

Background 

On August 01, 2022, Plaintiff Gateway Triangle Development filed an Unlawful Detainer action against Defendant Noreen Bethan Williams. 

On December 09, 2022, Defendant filed a Motion for Judgment on the Pleadings. 

Plaintiff filed opposing papers on February 06, 2023. 

Defendant filed a reply on February 09, 2023. 

MEET AND CONFER 

Code of Civil Procedure section 439 requires the moving party to meet and confer in person or by telephone before filing a motion for judgment on the pleadings. (Code Civ. Proc., § 439 subd. (a).) 

Defense Counsel asserts he met and conferred with Plaintiff’s counsel by telephone at least five days before filing this motion. (See Starre Decl.) Thus the meet and confer requirement is met. 

Legal Standard 

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) “In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) When considering demurrers and judgment on the pleadings, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) A motion for judgment on the pleadings does not lie as to a portion of a cause of action. (Id.) “In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action.” (Gami v. Mullikin Medical Ctr. (1993) 18 Cal.App.4th 870, 876.) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.)¿ 

Request for Judicial Notice 

Evidence Code, section 452 allows the court to take judicial notice of “[r]ecords of (1) any court of this state …” and “[r]egulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.” (Evid. Code, § 452, subds. (b) and (d).) While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein. (Love v. Wolf (1964) 226 Cal.App.2d 378, 403.) “When judicial notice is taken of a document, ... the truthfulness and proper interpretation of the document are disputable.” (StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9.) 

Defendant requests Judicial Notice of the following: 

A.    Complaint, with Exhibit 1 (Lease), Exhibit 2 (Notice to Quit); 

B.    Answer to Complaint; 

C.    Declaration of COVID19 Distress; 

D.    Los Angeles Municipal Ordinance 186606. 

Defendant’s request for Judicial Notice is GRANTED. 

Discussion 

Defendant Noreen Bethan Williams filed this Motion on the basis that the Complaint must be dismissed as a matter of law because it violates the Los Angeles City Eviction Moratorium. 

City of Los Angeles County Code of Ordinance No. 186585, section 49.99.3 states, “No Owner shall evict a tenant of Commercial Real Property during the Local Emergency Period if the tenant is unable to pay rent due to circumstances related to the COVID-19 pandemic.” (LAMC, § 49.99.3.) Ordinance No. 186606 amends section 49.99.3 to state, “During the Local Emergency Period and for three months thereafter, no Owner shall endeavor to evict or evict a tenant of Commercial Real Property for non-payment of rent during the Local Emergency Period if the tenant is unable to pay rent due to circumstances related to the COVID-19 pandemic.” (LAMC, § 49.99.3; see also RJN Ex. D.) 

On January 24, 2023, the Los Angles County Board of Supervisors signed a Resolution on Further Amending and Restating the County of Los Angeles COVID-19 Tenant Protections that extended certain tenant protections for residential tenants but declined to extend the tenant protections to commercial tenants, such as Defendant. Accordingly, the Local Emergency Period for commercial tenants ended on January 31, 2023. “[F]or three months thereafter” Plaintiff cannot “endeavor to evict or evict a tenant of Commercial Real Property for non-payment of rent.” (See LAMC, § 49.99.3.) “Tenants may use the protections afforded in this article as an affirmative defense in an unlawful detainer action.” (LAMC, § 44.99.63)  

Defendant asserts that Plaintiff’s Complaint for Unlawful Detainer should be dismissed because it was filed in violation of section 49.99.3 of the Los Angeles Municipal Code (LAMC). 

To the extent that Plaintiff asserts that Defendant does not meet the circumstances under section 49.99.3, Plaintiff is required to plead around the defense. “‘Where the complaint's allegations or judicially noticeable facts reveal the existence of an affirmative defense, the “plaintiff must ‘plead around’ the defense, by alleging specific facts that would avoid the apparent defense. Absent such allegations, the complaint is subject to demurrer for failure to state a cause of action ….’ [Citation.]” (Esparza v. County of Los Angeles (2014) 224 Cal.App.4th 452, 459 citing Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 824.) 

Here, the Complaint consists of a UD-100 form that states that Defendant was served with a 3-day notice to pay rent or quit and a 10-day notice to perform certain covenants or quit. No other facts are provided. Plaintiff’s opposing papers are ripe with allegations as to why Defendant does not qualify for the tenant protections under LAMC section 49.99.3, but none of those facts are presented in the Complaint. A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.)¿¿¿ 

The Court finds that Plaintiff has failed to plead around Defendant’s affirmative defense that this instant action is barred in part by LAMC section 49.99.3 to the extent the action is based on Defendant’s failure to pay rent. 

Plaintiff also argues that Defendant’s self-certification that Defendant experienced the loss of business income due to COVID-19 violates Plaintiff’s due process rights and should be disregarded by the Court. The argument is without merit because the declaration of COVID-19-related financial distress was filed with the Court pursuant to the Code of Civil Procedure section 1179.03 subdivision (h) and the affirmative defense was included in Defendant’s Answer. A copy of the Declaration was also included in Defendant’s moving papers. (See RJN Ex. C.) Accordingly, Plaintiff has proper notice of Defendant’s affirmative defense and notice of COVID-19-related distress. 

Whether or not Defendant experienced COVID-19-related financial distress that excused Defendant from paying rent presents a question of fact and is not subject to demurrer. (See Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 422 [finding an issue of fact is not properly resolved on a demurrer.].) More importantly, Plaintiff’s Unlawful Detainer action is also based on the fact that Defendant failed to abide by or perform certain covenants in the lease that resulted in a 10-day notice to quit. Defendant failed to address this in her moving papers and on reply asserts that the notices were ineffective because they did not state what needed to be done to comply. (See Reply at 3:9-17.) Whether Defendant failed to abide by the agreed-upon covenants in the lease or if the notices were ineffective also present questions of fact not subject to demurrer. 

Accordingly, Defendant’s motion for judgment on the pleadings is GRANTED IN PART as to allegations that Defendant failed to Pay Rent and violated the10-Day Notice to Quit due to Plaintiff’s failure to pay the late fees associated with rent. “No Owner shall charge interest or a late fee on rent not paid under the provisions of this article.” (LAMC, § 49.99.3.) 

Defendant’s Motion is DENIED as to allegations in the Complaint that Defendant failed to abide by the 10-Day Notice to Quit due to failure to perform other covenants as required by the Lease Agreement and outlined in Exhibit 2 of the Complaint, including violations of section 12.8 and 12.9 related to Tenant’s Insurance, failure to provide Financial Statement/Reporting in violation of section 44, and violation the Operating Covenant as outlined in section 6.7. 

Conclusion 

Defendant’s Motion for Judgment on the Pleadings is GRANTED IN PART as described above.

Moving party to give notice.