Judge David A. Rosen, Case Number: 23GDCV00481, Date: 2023-05-19 Tentative Ruling

Judge: David A. Rosen, Case: 23GDCV00481, Date: 2023-05-19 Tentative Ruling

Case Number: 23GDCV00481 Hearing Date: August 11, 2023 Dept: E

Hearing Date: 08/11/2023 – 2:00pm

Case No: 23GDCV00481
Trial Date: UNSET

Case Name: LOMA VISTA INVESTMENT, LLC, a California Limited Liability Company v. CJ PRIME INVESTMENT, LLC, a California Limited Liability company; MARVIN C. HUR, an individual; CONNIE KIM HUR, an individual; JONATHAN HUR, an individual; JENNIFER HUR, an individual; and DOES 1-10 in Occupancy

TENTATIVE RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Moving Party: Defendants, CJ Prime Investments LLC, Connie Hur, Marvin Hur, Jonathan Hur, and Jennifer Hur

Responding Party: As of 8/9/2023 No Opposition submitted

Proof of service timely filed (CRC 3.1300(c)): Ok

Correct Address (CCP §§ 1013, 1013(a)): Ok

Moving Papers: Motion; Jonathan Hur Declaration; Request for Judicial Notice; Separate Statement; Proposed Order

The Court notes that the Proposed Order was not listed in the proof of service, and thus the proposed order does not appear as if it was served on the Plaintiff.

Opposition: Opposition timely submitted 8/9/2023 in this UD case.

Reply: No Reply as of 8/10/2023

RELIEF REQUESTED
Defendants, CJ Prime Investments LLC, Connie Hur, Marvin Hur, Jonathan Hur, and Jennifer Hur move summary judgment, or in the alternative summary adjudication, on the basis that the cause of action for unlawful detainer cannot be supported because Plaintiff failed to name in the 30 day notice to quit the owner of the foreclosed property at stake, AA Premium Inc. Plaintiffs failed to serve said notice on AA Premium Inc. As a further grounds, Plaintiff failed to name and serve the notice of Trustee’s sale and notice of default on the owner of the property, AA Premium Inc.

BACKGROUND
Plaintiff filed the instant unlawful detainer action on 03/09/2023. Plaintiff alleges that it purchased the Subject Property by being the successful bidder at a public sale held on December 15, 2022, by the Trustee under a Deed of Trust. (Compl. ¶11.) Plaintiff alleges a Trustee’s Deed Upon Sale was issued in Plaintiff’s name on January 5, 2023 and was duly recorded with the County of Los Angeles on January 10, 2023. (Compl. ¶12.) Plaintiff attached as Exhibit 1 to its Complaint a copy of the Trustee’s Deed Upon Sale. (Compl. ¶12, Ex. 1.) Plaintiff alleges that on January 26, 2023, it caused a Notice in writing to be served upon Defendants, and/or any other persons who are in possession and/or occupy the Subject Property, to quit and surrender possession of the above-described premises to Plaintiff at the expiration of 30 days after service of said Notice. (Compl. ¶14.) Plaintiff attached as Exhibit 2 to the Complaint, a photograph of the Notice to Quit. Plaintiff alleges that more than 30 days has elapsed since the service of the Notice to Quit, but Defendants have failed to quit possession. (Compl. ¶15.)

This case is related to case 22GDCV00586. There is also a status conference on consolidation to the related case on 08/11/2023.

PROCEDURAL
5 Days

“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, Defendants filed and served their answer on 06/13/2023. Further, the instant motion was served on 7/6/2023 and the instant hearing is for 8/11/2023. Thus, this motion is timely.

LEGAL STANDARD

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 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.)

Code of Civil Procedure section 437c, subdivision (a) provides that “a party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” 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.)

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.) 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.)

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant 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)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

ANALYSIS
Defendants’ moving papers are extremely confusing, and therefore not persuasive. Several times throughout Defendants’ motion, Defendants’ counsel makes conclusory statements without any legal support. Further, the moving papers don’t explain how Plaintiff’s alleged failure to comply with the code sections upon which Defendants base their arguments is grounds supporting an MSJ.

Preliminarily, as noted, this is an unlawful detainer action, but moving Defendant does not state what the elements are for an unlawful detainer action, nor does Defendant state how Plaintiff cannot establish one of the elements of an unlawful detainer action.

Defendants’ Motion includes a section titled “Introduction and Statement of Facts.” In summary, Defendants allege in this section that: (1) In 2020, CJ Prime Investment LLC transferred all right title and interest in the subject real property to AA PREMIUM, INC. (see EXHIBIT A of the request for judicial notice of the Grant Deed). (2) AA Premium Inc. is a company owned by Jonathan Hur (see EXHIBIT B of the request for judicial notice of AA Premium Inc. Articles of Incorporation filed with the California Secretary of State). (3) All of which is public knowledge and public record. Indeed, as pointed out by LOMA in its own demurrer to the unlimited civil case, “the existence of AAP as record title holder for the Subject Property is a matter of public record” and indeed, both LOMA and Albert Ahdoot had actual, or at least constructive notice of the existence of AA Premium Inc. (4) Notwithstanding, LOMA and Albert Ahdoot, failed to provide a notice of default and a notice of Trustee's sale to the current owner AA Premium Inc. (5) On December 15, 2022, the property was sold. Plaintiff was the successful bidder at the public sale that was improperly held on December 15, 2022, under the Deed of Trust. A Trustee’s deed upon sale was issued in Plaintiff's LOMA VISTA INVESTMENT LLC’s name on January 5, 2023, and then recorded on January 10, 2023. (6) On or about January 26, 2023, Plaintiff served Defendant with a 30 days’ notice to quit (see EHXIBIT C of the request for judicial notice of the 30-day notice). This notice to quit does not name AA Premium Inc., although Plaintiff knew and was aware of it being an occupant of the premises. In fact, the family restaurant was owned and operated by AA Premium Inc. on such premises, and not by CP Prime Investments LLC. AA Premium was the foreclosed owner of the premises and should have been included in the notice along with the other known occupants, but it was not. On March 9, 2023, Plaintiff filed this unlawful detainer action, but again failed at first to add and serve AA Premium Inc. as Defendant, although its identity was known to LOMA. (Def. Mot. p. 3-4.)

Then, Defendants argue on pages 5-8 how Plaintiff didn’t comply with several sections of the CCP and the Civil Code. Particularly, Defendants argue how AA Premium, which Defendants argue is the owner of the property, was never named in the notice to quit and never served with said notice. Defendants thus argue summary judgment should be granted in their favor.

The Court also notes that Plaintiff here filed another UD case vs. essentially the same defendants as in this matter on 7/20/2023 (23GDCV01538). Query whether the newer UD case should result in the dismissal without prejudice of this case.

AA Premium is now a party to this case and is also named as a Defendant in 23GDCV01538. Further, in another arguably related case (22GDCV00586—wherein Defendants here have sued Plaintiff here for fraud, wrongful foreclosure, etc.), the Defendants here, aka the Plaintiffs in the other case, did name AA Premium as a Plaintiff. Moreover, AA Premium has a motion for leave to intervene pending in the 00586 case though they are a named Plaintiff therein. Query whether and, if so, how Alfred Ahdoot, a named Defendant in the 00586 case, is related to AA Premium.

Again, moving Defendants cite various code sections throughout this motion but they fail to make at all clear how or why those code sections apply. For example, Defendants say a 3-day notice and not a 30-day notice should have been served but cite no legal support for this assertion. Further, some of the cases that Defendants cite do appear to support the proposition that proper service of a notice to quit is essential to a judgment, but it is unclear whether those cases apply to the circumstances of this matter.

Plaintiff’s Opposition is also less than completely clear, but, notably, provides a Separate Statement, citing evidence which establishes the existence of multiple triable issues of disputed material fact in this matter. In this regard, the Court GRANTS Plaintiff’s Request for Judicial Notice (RJN) of three documents per CA Evid. Code, sec’s. 452, 453.

Similarly, the Court GRANTS Defendants’ RJN as to their Exhibits A, B, and C, but denies Defendants’ RJN for their Exhibit D.

TENTATIVE RULING

The Motion for Summary Judgment is DENIED, as opposing Plaintiff has established the existence of triable issues of disputed material fact in its Separate Statement accompanying the Opposition.