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Bornstein Law Janelle Barbier
Attn: Bornstein, Daniel 1204 66th Street
507 Polk Street Emeryville, CA 94608
Suite 310
San Francisco, CA 94102-3396
Superior Court of California, County of Alameda
Rene C. Davidson Alameda County Courthouse
Lee No. RG20079393
Plaintiff/Petitioner(s)
Order
VS.
Demurrer to Complaint
Barbier Overruled
Defendant/Respondent(s)
(Abbreviated Title)
The Demurrer to Complaint was set for hearing on 02/22/2021 at 03:00 PM in Department 19 before
the Honorable Stephen Kaus. The Tentative Ruling was published and has not been contested.
IT IS HEREBY ORDERED THAT:
The tentative ruling is affirmed as follows: Defendant Janelle Barbier's ("Defendant" or Tenant")
Demurrer to plaintiff John H. Lee's ("Plaintiff or "Landlord") Complaint is OVERRULED. However,
the Court ORDERS the proceedings in this action STAYED until July 1, 2021, pursuant to CCP §
871.10.
Defendant may serve and file an Answer to Plaintiff's Complaint no later than Friday, July 16, 2021.
IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m.
on Friday, 2/19/2021, contesting party must email dept.19@alameda.courts.ca.gov and provide notice
to all counsel of the intent to contest the tentative order.
Any requested hearing will most likely be conducted using the Blue Jeans Network, password #
5102676935. Ifa hearing is requested, the Court will advise the parties of the manner in which the
hearing will be conducted in advance of the hearing.
If not timely contested, and the tentative ruling will become the final order of the Court.
The present action is a landlord-tenant dispute regarding Tenant's failure to pay "Covid-19 rental debt"
within the meaning of CCP §§ 1179.02(a) and (c). The Complaint alleges causes of action for breach
of contract and breach of the implied covenant of good faith and fair dealing.
LAW RE: DEMURRERS
"A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader
Joe's Co. (2018) 20 Cal. App. 5th 989, 996.) "As a general rule in testing a pleading against a
demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be,"
unless the "complaint contains allegations of fact inconsistent with attached documents, or allegations
contrary to facts which are judicially noticed." (Del E. Webb Corp. v. Structural Materials Co. (1981)
123 Cal. App. 3d 593, 604.) Courts "construe the complaint ‘liberally ... with a view to substantial
justice between the parties[.|"" (Goncharov v. Uber Techs., Inc. (2018) 19 Cal. App. 5th 1157, 1165.)
A plaintiff need only plead such facts as are necessary "to acquaint a defendant with the nature, source
Order
and extent of his claims" so as to provide defendant with "notice of the issues sufficient to enable
preparation of a defense." (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-550.)
"{I|f a plaintiff pleads a claim that fails to state a cause of action, a demurrer is properly sustained].|"
(Boxer v. City of Beverly Hills (2016) 246 Cal. App. 4th 1212, 1225.) "Where the complaint is
defective, ... great liberality should be exercised in permitting a plaintiff to amend [the] complaint.
(Redfearn, 20 Cal. App. 5th at 996.) "[L]eave to amend should not be granted where ... amendment
would be futile." (Id. at 997.)
RELEVANT ALLEGATIONS OF FAC
The Complaint filed on 10/27/2020 alleges that Landlord is the owner of 1204 66th Street, Oakland,
CA (the "Property"), a residential rental property that since 7/15/2016 has been rented to Tenant
pursuant to a written lease agreement (the "Lease"). (Complaint at §{ 1, 6 and Exh. 1.) The Complaint
further alleges that Tenant failed to pay monthly rent of $3,850 for the eight-month period from April
2020 through October 2020. (Id. at 8.) The Complaint seeks money damages and an award of
attorneys’ fees pursuant to the terms of the Lease.
ANALYSIS OF DEMURRER
Defendant contends that the filing of this action in this Court is barred by the plain language of the
California Tenant, Homeowner, and Small Landlord Relief and Stabilization Act of 2020, as
subsequently amended (the "Act").
CCP § 116.223 in its current form states:
"(a) The Legislature hereby finds and declares as follows:
(1) There is anticipated to be an unprecedented number of claims arising out of nonpayment of
residential rent that occurred between March 1, 2020, and June 30, 2021, related to the COVID-19
pandemic.
(2) These disputes are of special importance to the parties and of significant social and economic
consequence collectively as the people of the State of California grapple with the health, economic, and
social impacts of the COVID-19 pandemic.
(3) It is essential that the parties have access to a judicial forum to resolve these disputes expeditiously,
inexpensively, and fairly.
(4) It is the intent of the Legislature that landlords of residential real property and their tenants have the
option to litigate disputes regarding rent which is unpaid for the time period between March 1, 2020,
and June 30, 2021, in the small claims court. It is the intent of the Legislature that the jurisdictional
limits of the small claims court not apply to these disputes over COVID-19 rental debt.
(b)(1) Notwithstanding paragraph (1) of subdivision (a) Section 116.220, Section 116.221, or any other
law, the small claims court has jurisdiction in any action for recovery of COVID-19 rental debt, as
defined in Section 1179.02, and any defenses thereto, regardless of the amount demanded.
(2) In an action described in paragraph (1), the court shall reduce the damages awarded for any amount
of COVID-19 rental debt sought by payments made to the landlord to satisfy the COVID-19 rental debt,
including payments by the tenant, rental assistance programs, or another third party pursuant to
paragraph (3) of subdivision (a) of Section 1947.3 of the Civil Code.
(3) An action to recover COVID-19 rental debt, as defined in Section 1179.02, brought pursuant to this
subdivision shall not be commenced before August 1, 2021.
(c) Any claim for recovery of COVID-19 rental debt, as defined in Section 1179.02, shall not be subject
to Section 116.231, notwithstanding the fact that a landlord of residential rental property may have
brought two or more small claims actions in which the amount demanded exceeded two thousand five
hundred dollars ($2,500) in any calendar year.
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(d) This section shall remain in effect until July 1, 2025, and as of that date is repealed."
CCP § 1179.02(c) provides: " 'COVID-19 rental debt' means unpaid rent or any other unpaid financial
obligation of a tenant under the tenancy that came due during the covered time period." § 1170.02(a)
defines "covered time period" as "the time period between March 1, 2020, and June 30, 2021." As so
defined, all unpaid rent alleged in the Complaint is Covid-19 rental debt. The Complaint does not allege
that Tenant is a "high-income tenant" within the meaning of CCP § 1179.03(a)(1)(A).
Landlord contends that CCP § 116.223 does not require him to bring a small claims action after
8/1/2021, because § 116.223 merely gives landlords an "option" to pursue relief for unpaid "COVID-19
rental debt" in small claims court and that where, as here, the amount of the "COVID-19 rental debt"
alleged in the Complaint is greater than the $25,000 jurisdictional minimum, Landlord may bring a
general civil action pursuant to CCP § 89.
Landlord is correct that he may bring this action as an unlimited civil action. However, newly enacted
CCP § 871.10 provides in relevant part:
"(d) An action to recover COVID-19 rental debt, as defined in Section 1179.02, that is subject to this
section shall not be commenced before July 1, 2021.
(e) This section shall not apply to an action to recover COVID-19 rental debt, as that term is defined in
Section 1179.02, pending before the court as of the operative date of this section.
(f) Except as otherwise provided in this section, any action to recover COVID-19 rental debt, as defined
in Section 1179.02, that is subject to this section and is pending before the court as of the operative date
of this section shall be stayed until July 1, 2021.
(g) This section shall not apply to any unlawful detainer action to recover possession pursuant to
Section 1161.
(h) Actions for breach of contract to recover rental debt that were filed before October 1, 2020, shall not
be stayed and may proceed, except that this subdivision shall not apply to actions filed against any
person who would have qualified under the rental assistance funding provided through the Secretary of
the Treasury pursuant to Section 501 of Subtitle A of Title V of Division N of the federal Consolidated
Appropriations Act, 2021 (Public Law 116-260) and where the person's household income is at or
below 80 percent of the area median income for the 2020 calendar year."
Per Westlaw, § 871.10 became effective on 1/29/2021. As stated above, the Complaint was filed on
10/27/2020. Thus, pursuant to §§ 871.10(d)-(h), this lawsuit is not barred by § 871.10(d), but must be
stayed until July 1, 2021.
Wherefore, the Court OVERRULES Defendant's Demurrer and ORDERS the proceedings in this action
STAYED until July 1, 2021 pursuant to CCP § 871.10.
As a final matter, the Court notes that to the extent Plaintiff elected to bring this action as a general civil
action because there is an attorneys’ fees clause at § 39 of the Lease, CCP § 871.11 sets limits on the
amount of attorneys’ fees that may be recovered in an action to recover "COVID-19 rental debt."
Dated: 02/22/2021
At Maus. Facsimile
Judge Stephen Kaus
Order
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Bornstein Law Janelle Barbier Attn: Bornstein, Daniel 1204 66th Street 507 Polk Street Emeryville, CA 94608 Suite 310 San Francisco, CA 94102-3396 Superior Court of California, County of Alameda Rene C. Davidson Alameda County Courthouse Lee No. RG20079393 Plaintiff/Petitioner(s) Order VS. Demurrer to Complaint Barbier Overruled Defendant/Respondent(s) (Abbreviated Title) The Demurrer to Complaint was set for hearing on 02/22/2021 at 03:00 PM in Department 19 before the Honorable Stephen Kaus. The Tentative Ruling was published and has not been contested. IT IS HEREBY ORDERED THAT: The tentative ruling is affirmed as follows: Defendant Janelle Barbier's ("Defendant" or Tenant") Demurrer to plaintiff John H. Lee's ("Plaintiff or "Landlord") Complaint is OVERRULED. However, the Court ORDERS the proceedings in this action STAYED until July 1, 2021, pursuant to CCP § 871.10. Defendant may serve and file an Answer to Plaintiff's Complaint no later than Friday, July 16, 2021. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Friday, 2/19/2021, contesting party must email dept.19@alameda.courts.ca.gov and provide notice to all counsel of the intent to contest the tentative order. Any requested hearing will most likely be conducted using the Blue Jeans Network, password # 5102676935. Ifa hearing is requested, the Court will advise the parties of the manner in which the hearing will be conducted in advance of the hearing. If not timely contested, and the tentative ruling will become the final order of the Court. The present action is a landlord-tenant dispute regarding Tenant's failure to pay "Covid-19 rental debt" within the meaning of CCP §§ 1179.02(a) and (c). The Complaint alleges causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing. LAW RE: DEMURRERS "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 996.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be," unless the "complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) Courts "construe the complaint ‘liberally ... with a view to substantial justice between the parties[.|"" (Goncharov v. Uber Techs., Inc. (2018) 19 Cal. App. 5th 1157, 1165.) A plaintiff need only plead such facts as are necessary "to acquaint a defendant with the nature, source Order and extent of his claims" so as to provide defendant with "notice of the issues sufficient to enable preparation of a defense." (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-550.) "{I|f a plaintiff pleads a claim that fails to state a cause of action, a demurrer is properly sustained].|" (Boxer v. City of Beverly Hills (2016) 246 Cal. App. 4th 1212, 1225.) "Where the complaint is defective, ... great liberality should be exercised in permitting a plaintiff to amend [the] complaint. (Redfearn, 20 Cal. App. 5th at 996.) "[L]eave to amend should not be granted where ... amendment would be futile." (Id. at 997.) RELEVANT ALLEGATIONS OF FAC The Complaint filed on 10/27/2020 alleges that Landlord is the owner of 1204 66th Street, Oakland, CA (the "Property"), a residential rental property that since 7/15/2016 has been rented to Tenant pursuant to a written lease agreement (the "Lease"). (Complaint at §{ 1, 6 and Exh. 1.) The Complaint further alleges that Tenant failed to pay monthly rent of $3,850 for the eight-month period from April 2020 through October 2020. (Id. at 8.) The Complaint seeks money damages and an award of attorneys’ fees pursuant to the terms of the Lease. ANALYSIS OF DEMURRER Defendant contends that the filing of this action in this Court is barred by the plain language of the California Tenant, Homeowner, and Small Landlord Relief and Stabilization Act of 2020, as subsequently amended (the "Act"). CCP § 116.223 in its current form states: "(a) The Legislature hereby finds and declares as follows: (1) There is anticipated to be an unprecedented number of claims arising out of nonpayment of residential rent that occurred between March 1, 2020, and June 30, 2021, related to the COVID-19 pandemic. (2) These disputes are of special importance to the parties and of significant social and economic consequence collectively as the people of the State of California grapple with the health, economic, and social impacts of the COVID-19 pandemic. (3) It is essential that the parties have access to a judicial forum to resolve these disputes expeditiously, inexpensively, and fairly. (4) It is the intent of the Legislature that landlords of residential real property and their tenants have the option to litigate disputes regarding rent which is unpaid for the time period between March 1, 2020, and June 30, 2021, in the small claims court. It is the intent of the Legislature that the jurisdictional limits of the small claims court not apply to these disputes over COVID-19 rental debt. (b)(1) Notwithstanding paragraph (1) of subdivision (a) Section 116.220, Section 116.221, or any other law, the small claims court has jurisdiction in any action for recovery of COVID-19 rental debt, as defined in Section 1179.02, and any defenses thereto, regardless of the amount demanded. (2) In an action described in paragraph (1), the court shall reduce the damages awarded for any amount of COVID-19 rental debt sought by payments made to the landlord to satisfy the COVID-19 rental debt, including payments by the tenant, rental assistance programs, or another third party pursuant to paragraph (3) of subdivision (a) of Section 1947.3 of the Civil Code. (3) An action to recover COVID-19 rental debt, as defined in Section 1179.02, brought pursuant to this subdivision shall not be commenced before August 1, 2021. (c) Any claim for recovery of COVID-19 rental debt, as defined in Section 1179.02, shall not be subject to Section 116.231, notwithstanding the fact that a landlord of residential rental property may have brought two or more small claims actions in which the amount demanded exceeded two thousand five hundred dollars ($2,500) in any calendar year. Order (d) This section shall remain in effect until July 1, 2025, and as of that date is repealed." CCP § 1179.02(c) provides: " 'COVID-19 rental debt' means unpaid rent or any other unpaid financial obligation of a tenant under the tenancy that came due during the covered time period." § 1170.02(a) defines "covered time period" as "the time period between March 1, 2020, and June 30, 2021." As so defined, all unpaid rent alleged in the Complaint is Covid-19 rental debt. The Complaint does not allege that Tenant is a "high-income tenant" within the meaning of CCP § 1179.03(a)(1)(A). Landlord contends that CCP § 116.223 does not require him to bring a small claims action after 8/1/2021, because § 116.223 merely gives landlords an "option" to pursue relief for unpaid "COVID-19 rental debt" in small claims court and that where, as here, the amount of the "COVID-19 rental debt" alleged in the Complaint is greater than the $25,000 jurisdictional minimum, Landlord may bring a general civil action pursuant to CCP § 89. Landlord is correct that he may bring this action as an unlimited civil action. However, newly enacted CCP § 871.10 provides in relevant part: "(d) An action to recover COVID-19 rental debt, as defined in Section 1179.02, that is subject to this section shall not be commenced before July 1, 2021. (e) This section shall not apply to an action to recover COVID-19 rental debt, as that term is defined in Section 1179.02, pending before the court as of the operative date of this section. (f) Except as otherwise provided in this section, any action to recover COVID-19 rental debt, as defined in Section 1179.02, that is subject to this section and is pending before the court as of the operative date of this section shall be stayed until July 1, 2021. (g) This section shall not apply to any unlawful detainer action to recover possession pursuant to Section 1161. (h) Actions for breach of contract to recover rental debt that were filed before October 1, 2020, shall not be stayed and may proceed, except that this subdivision shall not apply to actions filed against any person who would have qualified under the rental assistance funding provided through the Secretary of the Treasury pursuant to Section 501 of Subtitle A of Title V of Division N of the federal Consolidated Appropriations Act, 2021 (Public Law 116-260) and where the person's household income is at or below 80 percent of the area median income for the 2020 calendar year." Per Westlaw, § 871.10 became effective on 1/29/2021. As stated above, the Complaint was filed on 10/27/2020. Thus, pursuant to §§ 871.10(d)-(h), this lawsuit is not barred by § 871.10(d), but must be stayed until July 1, 2021. Wherefore, the Court OVERRULES Defendant's Demurrer and ORDERS the proceedings in this action STAYED until July 1, 2021 pursuant to CCP § 871.10. As a final matter, the Court notes that to the extent Plaintiff elected to bring this action as a general civil action because there is an attorneys’ fees clause at § 39 of the Lease, CCP § 871.11 sets limits on the amount of attorneys’ fees that may be recovered in an action to recover "COVID-19 rental debt." Dated: 02/22/2021 At Maus. Facsimile Judge Stephen Kaus Order