Judge Alison Mackenzie, Case 23SMCV00266 2023-05-15 Tentative Ruling

Judge: Alison Mackenzie, Case: 23SMCV00266, Date: 2023-05-15 Tentative Ruling

Case Number: 23SMCV00266 Hearing Date: May 15, 2023 Dept: 207

Background

Plaintiff Von Fersen Properties LLC (“Plaintiff”) brings this unlawful detainer action against Onizuka LA LLC (“Defendant”) concerning a commercial property located at 514 North La Cienega Boulevard in West Hollywood, California. Plaintiff now moves for summary judgment or, in the alternative, summary adjudication. A party may oppose motion for summary judgment filed in an unlawful detainer action orally at the hearing or with a written opposition filed and served before or at the hearing. (Cal. Rules of Court, rule 3.1351(b)-(c).) “If a party seeks to have a written opposition considered in advance of the hearing, the written opposition must be filed and served on or before the court day before the hearing.” (Id., rule 3.1351(c).) At the time this tentative ruling was prepared by the Court, Defendant had not filed a written opposition to Plaintiff’s motion.

Request for Judicial Notice

Plaintiff requests the Court take judicial notice of a grant deed recovered in the Los Angeles County Recorder’s office. The Court GRANTS this request. Plaintiff also requests the Court take judicial notice of an online article appearing on the website https://la.eater.com. This request is DENIED as this article does not fall within any of the categories enumerated by Evidence Code sections 451 or 452 cited by Plaintiff. The article is not a court record, nor is it a fact or proposition of common knowledge that cannot reasonably be the subject of dispute, nor are the matters asserted therein capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.

Legal Standard

Code Civ. Proc. § 1170.7 provides “A motion for summary judgment may be made at any time after the answer is filed upon giving five days’ notice. Summary judgment shall be granted or denied on the same basis as a motion under Section 437c.” “Any opposition to the motion and any reply to an opposition may be made orally at the time of hearing or in writing as set forth in (c).”¿ (CRC 3.1351(b).)¿ “If a party seeks to have a written opposition considered in advance of the hearing, the written opposition must be filed and served on or before the court day before the hearing. Service must be by personal delivery, facsimile transmission, express mail, or other means consistent with Code of Civil Procedure sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties no later than the close of business on the court day before the hearing. The court, in its discretion, may consider written opposition filed later.”¿ (CRC 3.1351(c).)

A motion for summary judgment shall be granted if all the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (C.C.P. § 437c(c).) The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code Civ. Proc. § 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

On a plaintiff’s motion for summary judgment, the plaintiff bears the burden of persuasion that each element of the cause of action in question has been proved, and that there is no defense thereto. (Code Civ. Proc., § 437c, subd. (o)(1); Aguilar v. Atlantic Richfield Company, et al. (2001) 25 Cal. 4th 826, 850.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto . . . . A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

When moving for summary judgment or adjudication on a defendant’s affirmative defenses, “A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).)

Analysis

The basic elements of unlawful detainer are: (1) tenant is in possession, (2) tenant is in possession without permission, (3) tenant is in default for nonpayment of rent or for failure to perform the conditions or covenants of the¿lease¿or agreement under which the property is held (4) tenant has been served with a written three-day notice, and (5) the default continued after the three-day period elapsed. (C.C.P. §§ 1161(2), 1174(a); Kruger v. Reyes (2014) 232 Cal.App.4th Supp 10, 16; Saberi v. Bakhtiari¿(1985) 169 Cal.App.3d 509, 515.)

The Court finds Plaintiff has carried its initial burden as to each of these elements. On June 1, 2021, Plaintiff and Defendant entered into a lease agreement for the subject property. (Ex. 1 to Hoffman Decl.) Pursuant to the lease, Defendant was obligated to pay $19,055 per month in base rent and $3,000 per month in common area maintenance (“CAM”) charges. (Hoffman Decl. at ¶4.) The lease further provides for a ten percent late charge if Defendant fails to pay these amounts by the fifth of each month. (Id.) Defendant did not make monthly payments for December 2022 or January 2023. (Id. at ¶5.) Factoring in base rent, CAM charges, and late fees, Defendant is in default for failing to pay $48,521 due under the lease. (Id. at ¶¶4-5.) On January 8, 2023, Defendant was served with a three-day notice to quit. (Sanders Decl. at ¶2.) Defendant did not cure its default or vacate the premises within three days of its receipt of this notice. (Hoffman Decl. at ¶6.) Defendant remains in possession of the property and has not made any rent payments following the service of the notice to quit. (Id.)

Plaintiff has also put forth evidence of its damages in the form of back rent and holdover damages. As set forth above, Plaintiff has shown it is owed $48,521 for rent, CAM charges, and late fees for the months of December 2022 and January 2023. Plaintiff has also put forth evidence of its holdover damages following Defendant’s failure to surrender possession within three-days of receipt of the notice to quit. “‘If a tenant unlawfully detains possession after the termination of a lease, the landlord is entitled to recover as damages the reasonable value of the use of the premises during the time of such unlawful detainer. He is not entitled to recover rent for the premises because the leasehold interest has ended.’ [¶] The amount agreed between the parties as rent is evidence of the rental value of the property. But, ‘[since] the action is not upon contract, but for recovery of possession and, incidentally, for the damages occasioned by the unlawful detainer, such rental value may be greater or less than the rent provided for in the lease.’” (Lehr v. Crosby (1981) 123 Cal.App.3d Supp. 1, 9 [internal citations and footnote omitted].)

Under section 26 of the lease, Defendant agreed that damages during any holdover period would be computed at the amount of normally due except base rent would be calculated at 150% of the base rent due during the last full month prior to termination of the lease. (Hoffman Decl. at ¶7.) Such provisions are enforceable in commercial leases. “The lease clause in this case specified rent would increase after the lease expired. The case law refers to such a clause as a holdover rent provision or as ‘a graduated rental.’ [Citation.] Commercial provisions of this sort are enforceable even if the increased rent is much greater than the base rent.” (Constellation-F, LLC v. World Trading 23, Inc. (2020) 45 Cal.App.5th 22, 26.) As of December 2022, the base rent was $19,055. (Hoffman Decl. at ¶4.) Applying section 26 to this base amount results in a calculation of $28,582.50 per month in holdover damages, or $939.70 per day from the expiration of the three-day notice to quit until entry of judgment. As of the date of the hearing on this motion, such holdover damages total $115,583.10 ($939.70 per day x 123 days).

The Court thus finds Plaintiff has carried its initial burden in showing it is entitled to summary judgment on its cause of action for unlawful detainer. Absent a showing by Defendant that a triable issue of material fact exists, the Court will grant Plaintiff’s motion.

Conclusion

Plaintiff has carried its initial burden in moving for summary judgment on its claim for unlawful detainer. The Court will determine at the hearing whether Defendant can establish the existence of a triable issue of material fact in connection with Plaintiff’s claim.