DENNIS DVORIN VS JAMSHID BARMAAN, ET AL.

Tentative Rulings

Case Number: *******0864 Hearing Date: January 27, 2023 Dept: 37

HEARING DATE: January 27, 2023

CASE NUMBER: *******0864

CASE NAME: Dennis Dvorin. v. Jamshid Barmaan, et al.

MOVING PARTY: Defendant Jamshid Barmaan

RESPONDING PARTY: Plaintiff, Dennis Dvorin

TRIAL DATE: None

PROOF OF SERVICE: OK

MOTION: Defendant’s Demurrer to Complaint

OPPOSITION: December 9, 2022—Untimely Filed. Opposition was due December 6, 2022. (C.C.P., 1005)

REPLY: December 12, 2022

TENTATIVE: Barmaan’s demurrer is sustained. Plaintiff is granted 20 days leave to amend. Defendant Barmaan is to give notice.

Background

This landlord tenant action arises in connection with the lease by Dennis Dvorin (“Plaintiff”) of Defendant Jamshid Barmaan’s (“Barmaan”) separate dwelling unit on Barmaan’s property located at 2040 Linnington Ave, Los Angeles California 90025 on December 3, 2017 (“Lease”). On December 1, 2018, Plaintiff and Barmaan renewed the Lease with a rent increase. On October 15, 2019, Barmaan served notice on Plaintiff of a second rental increase effective December 1, 2019. On May 13, 2022, Defendant served notice on Plaintiff with an increase to the original security deposit. Plaintiff failed to pay the increased security deposit and, on June 23, 2022, Barmaan served a three-day notice to perform.

On July 29, 2022, Barmaan filed an unlawful detainer complaint against Plaintiff based on Plaintiff’s failure to pay the increased security deposit. (Case No. 22SMUD00999 in the West District of the Los Angeles Superior Court).

Plaintiff alleges he was served eviction papers on August 14, 2022 and suffered emotional distress and anxiety as a result.

Plaintiffs’ Complaint now seeks damages pursuant to Los Angeles City 7 Ordinance No. 186606 amending Article 14.6 of Chapter IV of the Los Angeles Municipal 8 Code to add Article 14.6 entitled Temporary Protection of Tenants during Covid-19 Pandemic.

Barmaan now demurs to the Complaint. Plaintiff opposes the motion.

Plaintiff’s opposition was initially untimely, as a timely opposition was due December 6, 2022. (CCP 1005(b), 1013(c).) The court has the discretion to disregard this opposition in making its ruling. (Cal. Rules of Court, Rule 3.1300(d).) However, as the hearing regarding this motion was continued, and in light of the changed circumstances and equites as a result, the court exercises its discretion in considering the opposition.

Discussion[1]

I. Legal Standard

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. (CCP 430.30(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.) 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 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.” (CCP 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

II. Analysis

A. First Cause of Action: Violation of Eviction Moratorium

Los Angeles Municipal Code (“LAMC”) 49.99 et seq. provided pandemic protections to renters in Los Angeles (“Eviction Moratorium”). LAMC 49.99.2 states, in relevant part:

“A. During the Local Emergency Period and for 12 months after its expiration, no Owner shall endeavor to evict or evict a residential tenant 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. These circumstances include loss of income due to a COVID-19 related workplace closure, child care expenditures due to school closures, health-care expenses related to being ill with COVID-19 or caring for a member of the tenant's household or family who is ill with COVID-19, or reasonable expenditures that stem from government-ordered emergency measures. Tenants shall have up to 12 months following the expiration of the Local Emergency Period to repay any rent deferred during the Local Emergency Period. Nothing in this article eliminates any obligation to pay lawfully charged rent. However, the tenant and Owner may, prior to the expiration of the Local Emergency Period or within 90 days of the first missed rent payment, whichever comes first, mutually agree to a plan for repayment of unpaid rent selected from options promulgated by the Los Angeles Housing Department ("LAHD") for that purpose. (Amended by Ord. No. 187,122, Eff. 8/8/21.)

B. No Owner shall endeavor to evict or evict a residential tenant for a no-fault reason during the Local Emergency Period.

...

D. No Owner shall charge interest or a late fee on rent not paid under the provisions of this article.

E. An Owner shall: (i) provide written notice to each residential tenant of the protections afforded by this article ("Protections Notice") within 15 days of the effective date of this ordinance; and (ii) provide the Protections Notice during the Local Emergency Period and for 12 months after its termination each time the Owner serves a notice to pay or quit, a notice to terminate a residential tenancy, a notice to perform covenant or quit, or any eviction notice, including any notice required under California Code of Civil Procedure Section 1161 and California Civil Code Section 1946.1. LAHD shall make available the form of the Protections Notice, which must be used, without modification of content or format, by the Owner to comply with this subparagraph. LAHD will produce the form of the Protections Notice in the most commonly used languages in the City, and an Owner must provide the Protections Notice in English and the language predominantly used by each tenant. (Amended by Ord. No. 187,122, Eff. 8/8/21.)

F. No Owner shall influence or attempt to influence, through fraud, intimidation or coercion, a residential tenant to transfer or pay to the Owner any sum received by the tenant as part of any governmental relief program.

G. Except as otherwise specified in this article, nothing in this section shall prohibit an Owner from seeking to evict a residential tenant for a lawful purpose and through lawful means.” (Id.)

Barmaan contends Plaintiff’s cause of action for violation of LAMC 49.99, et seq. is insufficiently pled as “Plaintiff’s Complaint fails to establish that Plaintiff was being evicted for a ‘no-fault’ reason” since “Defendant brought forth an eviction because [they] believed Plaintiff was in violation of a material term of the lease.” (Demurrer, 3-4.) Defendant further contends their conduct does not meet the definition of “Endeavor to Evict” as defined by LAMC 49.99.1 and “the eviction was not based upon non-payment of rent.” (Dem., 4.) Further, Barmaan contends the Complaint includes no factual allegations to establish that the alleged increase in security deposit was “illegal” as alleged. (Dem. 4; Complaint 9.)

In opposition, Plaintiff cites LAMC 49.99.1 to define a “no-fault eviction.” (Opp., 1-2.) LAMC 49.99.1 states in relevant part:

“D. No-fault Reason. "No-fault reason" is any no-fault reason under California Civil Code Section 1946.2(b) or any no-fault reason under the Rent Stabilization Ordinance.” (LAMC 49.99.1(D).)

“(b) For purposes of this section, "just cause" includes either of the following:(1) At-fault just cause, which is any of the following:(A) Default in the payment of rent.(B) A breach of a material term of the lease, as described in paragraph (3) of Section 1161 of the Code of Civil Procedure, including, but not limited to, violation of a provision of the lease after being issued a written notice to correct the violation.” (Civ. Code 1946.2(b)

Plaintiff further contends the underlying unlawful detainer complaint was based on Plaintiff’s failure to pay an increase in the security deposit; that the dwelling was under the Rent Stabilization Ordinance; that Barmaan’s rent increases were in violation of the Ordinance and agreed upon terms. (Opp., 2-3.)

Plaintiff cites the Complaint, 9, to show the increased security deposit was in violation of Civil Code 1950.5(c)(1). (Opp., 3.) Paragraph 9 states in relevant part:

“On May 13, 2022 defendant landlord served plaintiff with a Notice of Change of 26 Terms of Tenancy, increasing the security from the original security deposit of $2,500.00 to $2,720.00, a sum of money in excess of the legal limit of increase of security deposit in violation of Civil Code section 1950.5(c)(l).” (Complaint 9.)

Plaintiff fails to explain, or point to allegations in the Complaint, to show why the increase of $220.00 in security deposit was illegal pursuant to section 1950.5.

In reply, Barmaan contends Plaintiff must also show Defendant “endeavored to evict” Plaintiff, which the Complaint fails to establish. (Reply, 1-2.) Further, both parties request judicial notice of the underlying unlawful detainer action, but fail to file a separate request to do so. Therefore, the court denies the improperly filed request of both parties. Requests for judicial notice must be made in a separate document. (Cal. Rules of Court, rule 3.1113(l).)

Barmaan also contends Plaintiff has failed to sufficiently allege facts to show the eviction was “no-fault” and further, “as a result of a voluntary dismissal of the Unlawful Detainer action 22SMUD00999, it was never established with certainty that the unlawful detainer was brought for a ‘no-fault’ reason.” (Reply, 2.) The court agrees.

The court finds the first cause of action insufficiently pled. Specifically, the court agrees with Barmaan that the Complaint includes scarce factual allegations to show an endeavor to evict on the part of Barmaan, that such alleged eviction was “no-fault” as defined by LAMC 49.99, et seq., and therefore, a violation of section 49.99, et seq.

For these reasons, Barmaan’s demurrer is sustained as to the first cause of action.

Conclusion

Barmaan’s demurrer is sustained. Plaintiff is granted 20 days leave to amend. Defendant Barmaan is to give notice.