Judge: Armen Tamzarian, Case: 24STCV24572, Date: 2024-11-13 Tentative Ruling
Case Number: 24STCV24572 Hearing Date: November 13, 2024 Dept: 52
Plaintiff
GKT-Wilshire-CA, LLC’s Motion for Summary Judgment
Plaintiff
GKT-Wilshire-CA, LLC moves for summary judgment of this action for unlawful
detainer against defendant Wilko USA, Inc.
Evidentiary
Objections
Defendant makes one objection to
plaintiff’s evidence. The objection is overruled.
Legal
Standard for Summary Judgment
A
plaintiff moving for summary judgment must prove each element of each cause of
action; once the plaintiff does so, the burden shifts to the defendant to show
a triable issue of at least one material fact.
(Code Civ. Proc., § 437c, subds. (c) & (p)(1); Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)
Action
for Unlawful Detainer
Plaintiff meets its initial burden
of proving each element of its sole cause of action for unlawful detainer. “[A] tenant
is guilty of unlawful detainer when he or she remains in possession of the
premises, without the permission of the landlord, after defaulting in the
payment of rent under the rental agreement, and fails to pay the rent due after
being served with a written three-day notice stating such amount and the place
at which payment is to be made.” (North
7th Street Associates v. Constante (2016) 7 Cal.App.5th Supp. 1, 4.)
First,
defendant failed to pay rent due under the lease agreement. In 2019, the parties entered an agreement
titled “assignment and assumption and first amendment to standard
industrial/commercial multi-tenant lease – net.” (Vasquez Decl., ¶ 6, Ex. A.) Defendant assumed a commercial lease for
premises at 3800 Wilshire Boulevard, Suite 110-F, Los Angeles, California. (Id., Ex. A, p. 1.) The lease provides for monthly base rent of
$8,258.25, escalating annually since 2015.
(Id., Ex. A-A, ¶ 1.5.) As
of June 2024, the monthly rent was $13,314.38 plus CAM of $3,753.75. (Vasquez Decl., ¶ 12.) Susana Vasquez, an assistant property manager
at the company that manages the property for plaintiff (id., ¶¶ 2-4) testifies,
“Commencing on June 1, 2024 and continuing to the present, Defendant has failed
to pay monthly rent as required under the Lease Agreement.” (Id., ¶ 7.)
Second, on August 15, 2024, plaintiff served defendant
with a three-day notice stating the amount of rent due and identifying the
place to pay. (Vasquez Decl., ¶ 8, Ex.
B.)
Third, defendant has not paid any rent after
receiving the three-day notice. Vasquez
testifies that when the notice to pay or quit expired, “Defendant failed to
comply and continues to fail to comply with the requirements stated
therein. No money has been received nor
accepted after the notice expired.” (Vasquez
Decl., ¶ 10.)
Finally, defendant remains in possession of the
property. Vasquez testifies, “Defendant
continues to occupy possession of the Subject Property as of October 21,
2024.” (Vasquez Decl., ¶ 12.)
Defendant filed an opposition but does not attempt
to dispute any of the above elements of unlawful detainer.
Amount of Damages
Plaintiff meets its initial burden of showing the
amount of damages. As of August 15,
2024, defendant owed past due rent of $50,816.50. (Vasquez Decl., ¶¶ 8, 10, Ex. B.) Plaintiff also presents evidence that, based
on the prorated monthly rent, the property’s fair rental value is $550.58 per
day. (Id., ¶ 11.) Plaintiff’s property manager testifies, “I
calculate the holdover damages from September 1, 2024, to November 13, 2024
which is the date of the hearing on Plaintiff’s motion for Summary Judgment as
follows: 73 days x $550.58 = $40,192.73.”
(Id., ¶ 13.) The damages
therefore total $91,008.94. (Id.,
¶ 14.)
Defendant presents evidence establishing a genuine
dispute of triable fact on the fair market value. The value of real property may be shown by
someone who owns an interest in the property or who possesses it. (Evid. Code, § 813.) Byung J. Lee, an officer of defendant Wilko
USA, Inc. (Lee Decl., ¶ 1) testifies: “The fair rental value of the Subject
Property cannot be $550.58 per day. The
parking is very inconvenient for the customers to use. The parking lot is inside the high-rise
building but the customers have to use stairs from the parking lot to enter the
Subject Property. The elevator for the
handicapped was almost always out of order. The landlord does not allow placing of a
banner showing the exact location of the restaurant. Some customers had a hard time finding the
location and while stopping on Wilshire Blvd to find the exact location., they
got traffic citations. Due to these
conditions, the fair rental value cannot be such as the amount claimed by
plaintiff.” (Id., ¶ 3.)
Lee’s testimony, based on his personal knowledge of
the property, suffices to create a triable issue of material fact on the
property’s value. The court therefore
cannot determine plaintiff’s damages on summary judgment. That does not, however, preclude the court
from granting judgment for possession of the premises.
A plaintiff in an unlawful detainer action can
recover damages, but damages are not an element of the action, per se. “Recovery of damages and rent due under Code
of Civil Procedure section 1174 is incidental to the action to recover
possession of the premises.” (Briggs
v. Electronic Memories & Magnetics Corp. (1975) 53 Cal.App.3d 900, 906.) In an unlawful detainer action, the plaintiff
may obtain an interlocutory judgment for possession of the property. (See Superior Motels, Inc. v. Rinn Motor
Hotels, Inc. (1987) 195 Cal.App.3d 1032, 1047, fn. 8; First Western
Development Corp. v. Superior Court (1989) 212 Cal.App.3d 860, 863; Code
Civ. Proc., § 1169.) The court will therefore
enter an interlocutory judgment for possession of the property.
Disposition
Plaintiff GKT-Wilshire-CA, LLC’s
motion for summary judgment of this action against defendant Wilko USA, Inc. is
granted as to possession of the property.
Plaintiff
shall submit a proposed interlocutory judgment for possession of the property for
the court’s signature forthwith.
The
court does not decide the issues of damages or attorney fees.