Judge: Daniel M. Crowley, Case: 22SMCV01417, Date: 2023-03-28 Tentative Ruling
Case Number: 22SMCV01417 Hearing Date: March 28, 2023 Dept: 207
Background
Plaintiff Douglas Emmet 1997, LLC (“Plaintiff”) brings this
unlawful detainer action against Defendant Ruttenberg IP Law (“Defendant”)
concerning commercial real estate owned by Plaintiff and located at 1801
Century Park East, Suite 1920, Los Angeles, California 90067. Plaintiff alleges
Defendant originally leased the subject property pursuant to a fixed term
lease, which the parties subsequently agreed to extend pursuant to several
written amendments. Plaintiff claims the lease term eventually expired and
pursuant to the term of the parties’ agreement, the lease converted to a
month-to-month tenancy terminable at will upon notice by either party.
Plaintiff claims it gave Defendant the requisite notice to terminate the
agreement and Defendant has improperly refused to surrender possession.
Defendant now moves for summary judgment on Plaintiff’s
unlawful detainer claim.
Request for Judicial Notice
Defendant requests the Court take judicial notice of the
January 25, 2022, Resolution of the Board of Supervisors of the County of Los
Angeles Further Amending and Restating the County of Los Angeles Covid-19
Tenant Protections Resolution. Defendant’s request is GRANTED.
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.)
As to each claim as framed by the complaint, the defendant moving
for summary judgment must satisfy the initial burden of proof by presenting
facts to negate an essential element, or to establish a defense. (CCP §
437c(p)(2); Scalf v. D. B. Log Homes,
Inc. (2005) 128 Cal.App.4th 1510, 1520.) Once the defendant has met this
burden, the burden shifts to the plaintiff to show a triable issue of one or
more material facts exists as to the cause of action or a defense thereto. To
establish a triable issue of material fact, the party opposing the motion must
produce substantial responsive evidence. (CCP § 437c(p)(2); Sangster v. Paetkau (1998) 68
Cal.App.4th 151, 166.) Courts “liberally construe the evidence in support of
the party opposing summary judgment and resolve doubts concerning the evidence
in favor of that party.” (Dore v. Arnold
Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)
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.)
Plaintiff’s action is premised on
Defendant’s failure to relinquish possession of the property following
Plaintiff’s service of a notice of termination of tenancy on Defendant.
Defendant argues Plaintiff failed to properly serve this notice as required by
the parties’ lease.
Paragraph 16.1 of the Lease
provides:
Any notice,
consent, approval, agreement, certification, request, bill, demand, statement,
acceptance or other communication hereunder (a "notice") shall be in
writing and shall be considered duly given or furnished when:
a) delivered
personally or by messenger or overnight delivery service, with signature
evidencing such delivery;
b) upon the
date of delivery, after being mailed in a postpaid envelope, sent certified
mail, when addressed to Landlord as set forth in the Basic Lease Information
and to Tenant at the Premises and any other address for Tenant specified in the
Basic Lease Information; or to such other address or addressee as either party
may designate by a written notice given pursuant hereto; or
c) upon
confirmation of good transmission if sent via facsimile machine to such phone
number as shall have been provided in writing by Landlord or Tenant, one to the
other.
(Ex. A to Complaint at ¶16.1.)
Plaintiff’s Complaint alleges it
served a written notice on Defendant on June 7, 2022, which terminated the
tenancy. (Complaint at ¶14.) The Complaint states this notice “was served on
Defendant Ruttenberg by personal delivery on June 7, 2022.” (Id.) Defendant
propounded written discovery on Plaintiff consisting of interrogatories and
requests for production which called for Plaintiff to identify and produce all
documents evidencing this personal service on June 7, 2022. (Exs. A-D to
Woocher Decl.) Defendant claims Plaintiff has produced no evidence indicating a
signature was ever provided by Defendant evidencing the alleged personal
service. (Woocher Decl. at ¶6.) Defendant also produces evidence indicating it
never provided such a signature. (Ruttenberg Decl. at ¶¶2-3.) Defendant thus
argues Plaintiff’s notice to terminate is invalid as it was not served via
personal service with signature evidencing delivery as required by paragraph
16.1 of the lease.
“In commercial leases the landlord
and commercial tenant may lawfully agree to notice procedures that differ from
those provided in the statutory provisions governing unlawful detainer.” (Culver
Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc. (2010)
185 Cal.App.4th 744, 750 [citing Folberg v. Clara G.R. Kinney Co. (1980)
104 Cal.App.3d 136, 141; 250 L.L.C. v. Photopoint Corp. (2005) 131
Cal.App.4th 703, 718].) “Thus, if the lease contains service requirements for
the notice to quit at variance with the requirements in the unlawful detainer statutes,
the lease provisions control.” (Id.)
Culver Center is squarely on point. There, a provision of a commercial
lease provided for service of notices under the lease by mail, electronic
service, or personal delivery. (Id. at 746-747.) Regardless of the
method of service utilized, the Lease also required such notice be “addressed
to or delivered to the appropriate party” at a specified mailing address. (Id.)
The landlord electronically served the notice to quit on tenant but failed to
deliver the notice to the address specified by the lease. (Id. at 750.)
The Culver Center Court found the notice provisions of the lease
controlled and landlord had failed to serve the notice to quit as required by
the lease. (Id. at 750-751.) The landlord argued strict compliance with
the notice provisions of the lease was not required as the tenant had
admittedly received the notice to quit. The Court rejected this argument,
stating “even if some policy rationale might support such a waiver/forfeiture
rule in the residential lease context, there is no basis to apply it in the
commercial context where matters of service and waiver are prescribed in the
lease itself.” (Id. at 752.) The Court noted:
Nothing in the parties’ lease suggests actual receipt of a
notice to quit results in the waiver or forfeiture of Baja Fresh's right to
service accomplished in the manner prescribed. To the contrary, the lease
specifically provides, “No covenant, term or condition, or breach” of the lease
“shall be deemed waived except if expressly waived in a written instrument
executed by the waiving party.” Although Larson acted on the notice to quit by
attempting to deliver the rent check, neither her fortuitous receipt of the
notice nor her actions in response to it constitutes an express waiver of the
notice provisions in the lease.
(Id.) The Court thus
affirmed the trial court’s grant of summary judgment in favor of the tenant,
holding “[landlord] failed to comply with the lease's provisions for service of
a notice to quit. Because there is no evidence [tenant] expressly waived the
notice provisions in the lease, [tenant]’s improper service of the notice
precludes its access to the summary remedy of unlawful detainer.” (Id.)
On the evidence before it, the
Court finds the same result must follow here. Defendant has presented evidence
indicating Plaintiff failed to comply with the service requirements imposed by
the parties’ lease agreement in serving the notice of termination which forms
the basis of this unlawful detainer action. Under Culver Center,
Plaintiff’s failure to provide notice as required by the lease precludes its
access to the summary unlawful detainer procedures. Defendant’s motion for
summary judgment is GRANTED.
As the Court has found this is a
sufficient basis on which to grant Defendant’s motion, it need not consider
Defendant’s alternative grounds for summary judgment and declines to do so.
Conclusion
Defendant’s motion for summary judgment is GRANTED.