Judge: Ashfaq G. Chowdhury, Case: 25NNCV02428, Date: 2025-05-23 Tentative Ruling
Case Number: 25NNCV02428 Hearing Date: May 23, 2025 Dept: E
Hearing Date: 05/23/2025 – 8:30am
Case No:
25NNCV02428
Trial Date: UNSET
Case Name: HEITMAN CREDIT ACQUISITION v. FUTRONICS
(NA) CORPORATION
[PLAINTIFF’S
MSJ/MSA]
RELIEF REQUESTED
“Plaintiff Heitman CREDIT Acquisition X, LLC, a
Delaware limited liability company (“Plaintiff”) will and hereby does move this
Court for an Order Granting Summary Judgment to Plaintiff against defendant
Futronics (NA) Corporation, a Delaware corporation (“Defendant”) in this case
for possession of the property located at 225 South Lake Ave., Suite 800,
Pasadena, CA 91101 (the “Premises”), for past due Rent in the amount of
$434,788.40, and for damages in the amount of $45,426.84 (23 days at $1,975.08
per day for each day that Defendant remains at the Premises from April 1, 2025
until judgment) for a total of $480,215.24. In the alternative, Plaintiff
requests Summary Adjudication of the following issues:
Issue 1: The
undisputed facts demonstrate that Plaintiff is entitled to an order summarily
adjudicating their Cause of Action for Unlawful Detainer and granting it
possession of the Premises because: the Lease requires that Defendant pay Rent
on a monthly basis; Defendant failed to pay Rent as required by the Lease;
Plaintiff served the requisite Notice to Pay or Quit; Defendant failed to pay
Rent; and Defendant failed to vacate the Premises.
The Motion is
based on this Notice, the attached Memorandum of Points and Authorities, the
Declaration of Angela Leavitt, all pleadings and other documents filed in this
case, and any other oral or documentary evidence that may be presented at the
hearing hereof.”
(Pl. Mot. p.
1-2.)
PROCEDURAL
Moving Party: Plaintiff,
Heitman Credit Acquisition X, LLC, a Delaware limited liability company
(Plaintiff or Heitman)
Responding Party: No Opposition by Defendant, Futronics
(NA) Corporation, a Delaware corporation
Moving Papers: Notice/Motion; Proposed Order; Proposed
Judgment
Opposition Papers: No Opposition by Defendant
Reply Papers: No Reply
BACKGROUND
The instant Complaint was filed on 4/9/2025.
Plaintiff, Heitman Credit Acquisition X, LLC, a Delaware
limited liability company, alleges one cause of action for unlawful detainer
against Defendant, Futronics (NA) Corporation, a Delaware corporation.
Plaintiff’s proof of service (filed on 4/20/2025) alleges
service of the Complaint and Summons via substituted service on 4/16/2025.
Plaintiff’s Complaint alleges that on or about November 18,
2019, its predecessor-in-interest, as landlord, and Defendant’s
predecessor-in-interest, as tenant, entered into a written lease whereby
Defendant leased the premises located at 225 South Lake Ave., Suite 800,
Pasadena, CA 911101. (Compl. ¶ 5.)
Plaintiff alleges it currently is the owner of the premises
and holds all of the right, title, and interest of the landlord under the
lease. (Compl. ¶ 6.)
Plaintiff alleges that Defendant failed and refused to make
all payments of rent due under the lease. (Compl. ¶ 10.)
Plaintiff alleges that on April 2, 2025, it duly and
lawfully served a Three (3) Business Day Notice to Pay Rent or Surrender
Possession (Notice) on Defendant. (Compl. ¶ 11.)
Plaintiff alleges that more than three (3) business days elapsed
since the service of the Notice and there was no lawful tender of the amount
set forth in the Notice. (Compl. ¶ 12.)
Plaintiff alleges
that the Notice required Defendant to pay the sum of $434,788.40, the amount of
rent outstanding under the lease through April 30, 2025 for the past year, or
quit the premises within three (3) business days after service of the Notice.
(Compl. ¶ 11.)
Defendant, Futronics (NA) Corporation, filed an Answer on
4/25/2025.
Defendant’s Answer indicates that Defendant “admits that
all the statements of the complaint and of Mandatory Cover Sheet and
Supplemental Allegations – Unlawful Detainer (form UD-101) are true EXCEPT: The
plaintiff did not mitigate the damages in accordance with the California Code,
Civil Code - CIV § 1951.2.” (See Answer, p. 1 & 3.)
Plaintiff now moves for summary judgment against Defendant
for past due rent in the amount of $434,788.40 and for damages in the amount of
$45,426.84 (23 days at $1,975.08 per day for each day that Defendant remains at
the premises from April 1, 2025 until judgment) for a total of $480,215.24.
(Pl. Mot. p. 1-2.)
PROCEDURAL ANALYSIS
Correct Address (CCP §§ 1013, 1013a, 1013b): Ok – Plaintiff’s
counsel served the moving papers to Defendant’s counsel via email. The email
address that Plaintiff’s counsel served matches the email address listed on
eCourt for Defendant’s counsel.
Further, under CRC Rule 3.1351(a), “In an unlawful
detainer action or other action brought under chapter 4 of title 3 of part 3 of
the Code of Civil Procedure (commencing with section 1159), notice of a motion
for summary judgment must be given in compliance with Code of Civil Procedure
sections 1010.6 or 1013 and 1170.7.” (CRC, Rule 3.1351(a).)
Since no
Opposition has been submitted, the Court would like Plaintiff to explain how it
complied with CRC, Rule 3.1351(a). Further, since no opposition has been
submitted, the Court would like Plaintiff to explain why it can serve Defendant
electronically.
Timeliness
“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.” (CCP § 1170.7.)
Here, the Court
would like Plaintiff to explain how it is compliant with CCP § 1170.7.
[The Court notes
that the Answer was filed on 4/25/2025, and that the notice/motion for summary
judgment was filed and served on 4/30/2025.]
LEGAL STANDARD – MSJ/MSA
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.)
The motion shall be granted if all
the papers submitted 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.
(Code Civ. Proc., § 437c(c).) In determining if the papers show that there
is no triable issue as to any material fact, the court shall consider all of
the evidence set forth in the papers, except the evidence to which objections
have been made and sustained by the court, and all inferences reasonably
deducible from the evidence, except summary judgment shall not be granted by
the court based on inferences reasonably deducible from the evidence if
contradicted by other inferences or evidence that raise a triable issue as to
any material fact. (Id.)
Further, under CCP § 437c(f)(1):
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 the party contends that the cause of action has no merit, that there
is no affirmative defense to the cause of action, that there is no merit to an
affirmative defense as to any cause of action, that there is no merit to a
claim for damages, as specified in Section 3294 of the Civil Code, or that one
or more defendants either owed or did not owe a duty to the plaintiff or
plaintiffs. 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.
(CCP § 437c(f)(1).)
Further, under CCP § 437c(f)(2):
A motion for summary adjudication
may be made by itself or as an alternative to a motion for summary judgment and
shall proceed in all procedural respects as a motion for summary judgment. A
party shall not move for summary judgment based on issues asserted in a prior
motion for summary adjudication and denied by the court unless that party
establishes, to the satisfaction of the court, newly discovered facts or
circumstances or a change of law supporting the issues reasserted in the
summary judgment motion.
(CCP §437c(f)(2).
Additionally, for purposes of motions for summary judgment
and summary adjudication:
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.
(CCP § 437c(p)(1).)
LEGAL STANDARD – CCP § 1161(2)
Under CCP § 1161(2):
A tenant
of real property, for a term less than life, or the executor or administrator
of the tenant’s estate heretofore qualified and now acting or hereafter to be
qualified and act, is guilty of unlawful detainer:
2. When
the tenant continues in possession, in person or by subtenant, without the
permission of the landlord, or the successor in estate of the landlord, if
applicable, after default in the payment of rent, pursuant to the lease or
agreement under which the property is held, and three days’ notice, excluding
Saturdays and Sundays and other judicial holidays, in writing, requiring its
payment, stating the amount that is due, the name, telephone number, and
address of the person to whom the rent payment shall be made, and, if payment
may be made personally, the usual days and hours that person will be available
to receive the payment (provided that, if the address does not allow for
personal delivery, then it shall be conclusively presumed that upon the mailing
of any rent or notice to the owner by the tenant to the name and address
provided, the notice or rent is deemed received by the owner on the date
posted, if the tenant can show proof of mailing to the name and address
provided by the owner), or the number of an account in a financial institution
into which the rental payment may be made, and the name and street address of
the institution (provided that the institution is located within five miles of
the rental property), or if an electronic funds transfer procedure has been
previously established, that payment may be made pursuant to that procedure, or
possession of the property, shall have been served upon the tenant and if there
is a subtenant in actual occupation of the premises, also upon the subtenant.
The notice
may be served at any time within one year after the rent becomes due. In all
cases of tenancy upon agricultural lands, if the tenant has held over and
retained possession for more than 60 days after the expiration of the term
without any demand of possession or notice to quit by the landlord or the
successor in estate of the landlord, if applicable, the tenant shall be deemed
to be holding by permission of the landlord or successor in estate of the
landlord, if applicable, and shall be entitled to hold under the terms of the
lease for another full year, and shall not be guilty of an unlawful detainer
during that year, and the holding over for that period shall be taken and
construed as a consent on the part of a tenant to hold for another year.
An
unlawful detainer action under this paragraph shall be subject to the COVID-19
Tenant Relief Act of 2020 (Chapter 5 (commencing with Section 1179.01)) if the
default in the payment of rent is based upon the COVID-19 rental debt.
(CCP § 1161(2).)
ANALYSIS
Plaintiff moves for
summary judgment based on CCP § 1161(2). Plaintiff submits the Leavitt
Declaration to establish that Defendant is in default with respect to monthly
obligations. Plaintiff also states that it served the Notice upon Defendant which
demanded the amount of rent due under the lease for the prior one year in the
total amount of $434,788.40.
Unlawful
Detainer Cause of Action
As a preliminary
matter, Plaintiff submits the declaration of Angela Leavitt, who is Property
Manager for Avison Young, agent for Plaintiff, Heitman Credit Acquisition X,
LLC. (Leavitt Decl. ¶ 1.) Leavitt states that Plaintiff is the current owner
and landlord of the property located at 225 South Lake Ave., Suite 800,
Pasadena CA 91101 (premises). (Id.)
Leavitt explains that
Plaintiff’s predecessor-in-interest, CVFI – S Lake Avenue, LP, as landlord, and
Defendant’s predecessor-in-interest, UBTECH ROBOTICS CORP., as tenant, entered
into a written lease agreement. (Leavitt Decl. ¶ 3.) In Exhibit A to the
Leavitt Declaration, Leavitt attaches the lease agreement between CVFI – S Lake
Avenue, LP and UBTECH ROBOTICS CORP. Further, within Exhibit A is the
assignment of the lease from UBTECH ROBOTICS CORP to Defendant, FUTRONICS (NA)
CORPORATION.
Additionally, attached
as Exhibit B is the Trustee’s Deed wherein the premises was transferred to
Plaintiff pursuant to a Trustee’s Deed. (Leavitt Decl. ¶ 4, Ex. B.)
“The basic elements of
unlawful detainer for nonpayment of rent contained in Code of Civil
Procedure section 1161, subdivision (2), are (1) the tenant is in possession of
the premises; (2) that possession is without permission; (3) the tenant is in default
for nonpayment of rent; (4) the tenant has been properly served with a written
three-day notice; and (5) the default continues after the three-day notice
period has elapsed.” (Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10,
16 citing Davidson v. Quinn (1982) 138 Cal.App.3d Supp 9, 11.)
1 – Tenant
is in possession of the premises
“Defendant is still in
possession of the Premises.” (Leavitt Decl. ¶ 7.)
2 –
Possession is without permission
Although the Leavitt
declaration does not explicitly state that “possession is without permission,”
this can be implied based on paragraphs 5-7 of the Leavitt declaration, which
explains that Defendant has not paid its rent balance owed despite Defendant being
served the Three (3) Business Day Notice to Pay Rent or Surrender Possession.
3 – Tenant
is in default for nonpayment of rent
Leavitt explains as
follows:
The
current Rent under the Lease is $60,075.45 per month, and consists of Base of
$54,415.40, utilities of $291.58, property tax charge of $1,530.37, insurance
of $3,450.53 and CAM charge of $387.57. The last time Defendant had a zero
balance was August 5, 2024. Thereafter, other than a single payment made in
November 2024, Defendant has paid nothing. There were promises of payment, but
Defendant never followed through. A true and correct copy of Defendant’s ledger
under the Lease as of April 2025 is attached hereto as Exhibit C and is
incorporated herein by this reference. Exhibit C accurately reflects
Defendant’s full account since Avison Young took over as manager for Plaintiff.
(Leavitt Decl. ¶ 5.)
4 – Tenant
has been properly served with a written three-day notice
In relevant part, the
Leavitt declaration states:
Thus, on
April 2, 2025, I drafted a Three (3) Business Day Notice to Pay Rent or
Surrender Possession (the “Notice”) and served it on Defendant in accordance
with the provisions of the Lease and California Code of Civil Procedure
Sections 1161, 1161.1 and 1162 by delivery to the Premises, and posting it in a
conspicuous place, there being no one there of suitable age and discretion to
receive it. (The door was locked and no one answered.) I also mailed a copy of
the Notice to the Premises via US Mail, First Class postage prepaid that same
day. A copy was sent by FedEx to the Lease notice address as well, but FedEx
returned the document indicating the address was bad. The Notice required
Defendant to pay the sum of $434,788.40, the amount of Rent outstanding under
the Lease through April 30, 2025 for the past year, or quit the Premises within
three (3) business days after service of the Notice. The Notice further set
forth Plaintiff’s election to declare a forfeiture of the Lease. A true and
correct copy of the Notice is attached hereto as Exhibit D and is incorporated
herein by this reference.
(Leavitt Decl. ¶ 6.)
5 –
Default continues after the three-day notice period has elapsed
In relevant part, the
Leavitt declaration states:
More than
three (3) business days elapsed since the service of the Notice and there was
no payment of the amount set forth in the Notice or any amount at all.
Defendant is still in possession of the Premises.
(Leavitt Decl. ¶ 7.)
TENATIVE
RULING
The Court will hear argument.
Generally speaking,
Plaintiff appears to have satisfied each element of its cause of action for
unlawful detainer.
However, as the Court
previously discussed in its “Procedural Analysis” section, Plaintiff is to address:
how it complied with CRC, Rule 3.1351(a); what authority allows Plaintiff to
serve this motion electronically; and how Plaintiff complied with CCP § 1170.7.
Separate
Statement
The Court notes that
Plaintiff’s Proposed Order indicated that a separate statement was submitted
with the moving papers. However, the Court notes that Plaintiff did not submit
a separate statement.
The Court to hear
argument as to whether it should deny this motion for Plaintiff failing to include
a separate statement.
“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.” (CCP § 1170.7.)
“The supporting papers
shall include a separate statement setting forth plainly and concisely all
material facts that the moving party contends are undisputed. Each of the
material facts stated shall be followed by a reference to the supporting
evidence. The failure to comply with this requirement of a separate statement
may in the court’s discretion constitute a sufficient ground for denying the
motion.” (CCP § 437c(b)(1).)
“Except as provided in
Code of Civil Procedure section 437c(r) and rule 3.1351, the motion must
contain and be support by the following documents: (2) Separate statement of
undisputed material facts in support of [moving party’s] motion for
summary judgment or summary adjudication or both[.]” (CRC, Rule 3.1350(c)(1).)
Damages
In addition to the
rent that Plaintiff demands ($434,788.40), Plaintiff argues it is also entitled
to damages in the amount of $1,975.08 per day from May 1, 2025 for each day
that Defendant continues in possession of the premises up to the time of
judgment for a total of $45,426.84.
The Court to hear
argument about damages; Plaintiff to explain the legal basis for requesting
damages.
Plaintiff cites to CCP
§ 1174(b) which provides:
The jury
or the court, if the proceedings be tried without a jury, shall also assess the
damages occasioned to the plaintiff by any forcible entry, or by any forcible
or unlawful detainer, alleged in the complaint and proved on the trial, and
find the amount of any rent due, if the alleged unlawful detainer be after
default in the payment of rent. If the defendant is found guilty of forcible
entry, or forcible or unlawful detainer, and malice is shown, the plaintiff may
be awarded statutory damages of up to six hundred dollars ($600), in addition
to actual damages, including rent found due. The trier of fact shall determine
whether actual damages, statutory damages, or both, shall be awarded, and
judgment shall be entered accordingly.
(CCP § 1174(b).)
Plaintiff also cites
to Evidence Code § 817:
(a) Subject
to subdivision (b), when relevant to the determination of the value of
property, a witness may take into account as a basis for an opinion the rent
reserved and other terms and circumstances of any lease which included the
property or property interest being valued or any part thereof which was in
effect within a reasonable time before or after the date of valuation, except
that in an eminent domain proceeding where the lease includes only the property
or property interest being taken or a part thereof, such lease may not be taken
into account in the determination of the value of property if it is entered
into after the filing of the lis pendens.
(b) A
witness may take into account a lease providing for a rental fixed by a
percentage or other measurable portion of gross sales or gross income from a
business conducted on the leased property only for the purpose of arriving at
an opinion as to the reasonable net rental value attributable to the property
or property interest being valued as provided in Section 819 or determining the
value of a leasehold interest.
(Evid. Code §
817(a)-(b).)
Plaintiff also cites
to Lehr v. Crosby (1981) 123 Cal.App.3d Supp. 1, 9.
In relevant part of Lehr:
Although
at common law breach of covenant to pay rent did not effect a forfeiture of a
lease, that rule has be modified by California's unlawful detainer statutes
which permit the lessor, on compliance with statutory notice requirements, to
declare a forfeiture and terminate the lease for nonpayment of rent. ( Sexton
v. Nelson (1964) 228 Cal.App.2d 248, 256 [39 Cal.Rptr407].) Upon
his service of a notice, in accordance with section 1161 of the Code of
Civil Procedure, to pay rent or quit and to effect a forfeiture of the lease
for the tenant's non-compliance within the stated period, the tenancy is
forfeited as of the end of the period. ( Downing v. Cutting Packing Co.
(1920) 183 Cal. 91, 95-96 [190 P.55].)
Section
1174 of the Code of Civil Procedure provides that if findings favorable to
the lessor are made, based upon default in the payment of rent, judgment shall
be entered for restitution of the premises“ and shall also declare the
forfeiture of the lease ”if the notice required by Section 1161 of
the code states the election of the landlord to declare the forfeiture thereof
...5 (4b)(See fn. 6.)In addition, the
court *9 “shall also assess the damages occasioned to the plaintiff
by any ... unlawful detainer, alleged in the complaint and proved on the trial,
and find the amount of any rent due,6 the alleged unlawful
detainer be after default in the payment of rent.” (Code Civ. Proc., § 1174,
subd. (b).)
“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 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.” Glouberman
v. Coffey (1956) 38 Cal.App.2d Supp. 906, 907 [292 P.2d
681]; see also Samuels v. Singer (1934) Cal.App.2d 545,
553 [36 P.2d 1098, 37 P.2d 1050] [holding that recovery for “the
value of the use of the property for the time of such occupation” or either a
tort theory or a theory of implied in law contract]; Stockton Morris
Plan Co. v. Carpenter, supra., 18 Cal.App.2d at pp. 213-214.)
The amount
agreed between the parties as rent is evidence of the rental value of the
property. ( Harris v. Bissell (1921) 54 Cal.App. 307, 312
[202.2d 453].)7 But, “[s]ince the action is not upon contract
[citation ] 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.” ( Harris v. Bissell, supra.,
54 Cal.App. at pp. 312-313 [holding that the evidence compelled a finding
of a value less than that provided in the rental agreement]; cf. Haig
v. Hogan, supra., 82 Cal.App.2d at pp. 877-878 [holding
the reasonable rental value of $1,000 per month properly awarded despite a
federal rent control ceiling of $300 per month].)
(Lehr v. Crosby (1981)
123 Cal.App.3d Supp. 1, 8-9. Fn. 5, “
If the notice does not state the landlord's election to declare a forfeiture,
no forfeiture is declared in the judgment but the tenant or any subtenant has
five days in which to pay the delinquent rent, with interest and damages, “and
thereupon the judgment shall be satisfied and the tenant be restored to his
estate.” (Code Civ. Proc., § 1174, subd.c).) We have reviewed plaintiff's
notice in this case. It adequately states plaintiff's intent to declare a
forfeiture upon noncompliance with the notice. Cf. A.H. Busch Co. v.
Strauss (1930) 103 Cal.App. 647, 649 [284 P. 966]; Neuhaus
v. Norgard (1934) 140 Cal.App. 735 [35 P.2d 10] [and cases
collected at pp. 738-742].))” Fn. 6, “
The amount of rent due is specifically found by the trial judge in the present
case to be $410.56.0.” Fn. 7, “Since commonly the only evidence before the
trial court of the rental value is the amount specified in the terminated lease
agreement, as a practical matter trial judges often simply calculate the number
of days between the last payment of rent and the judgment and multiply that
number by the monthly rental averaged as a daily rate and by that method
compute both accrued rents and damages.”)
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AC