Judge: Edward B. Moreton, Jr., Case: 22SMCV00600, Date: 2022-12-12 Tentative Ruling

Case Number: 22SMCV00600    Hearing Date: December 12, 2022    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

MOVING PARTY:                    Defendant 8250 Sunset Blvd, Inc.

RESPONDING PARTY:         Plaintiff 8250 Sunset Holdings, LLC

BACKGROUND

This is an unlawful detainer action.  The property is located at 8250 Sunset Blvd, West Hollywood (the “Premises”).  Defendant 8250 Sunset Blvd, Inc. (“Tenant”) has been leasing the Property since 1996.  Tenant operates a strip club, the Body Shop, at the Premises.  The Premises was recently sold to Plaintiff 8250 Sunset Holdings, LLC (“Landlord”). 

Landlord filed an unlawful detainer action, alleging that Tenant failed to “maintain and repair the roof, exterior and parking lot of the [Premises]”, and to “account and pay to Plaintiff 15% of the net profits” of Tenant.  (Compl. ¶17.)  The 3 Day Notice to Perform Covenants or Quit alleges two additional failures to “pay the current property taxes for the [Premises],” and “pay and keep in force fire and liability insurance for the Premises.” (3 Day Notice to Perform Covenants or Quit.)    

This hearing is on Tenant’s motion for summary judgment.  Tenant argues that (1) the 3 day notice is invalid as a matter of law because it fails to state the amount of rent due, (2) Tenant was not obligated to maintain and repair the roof, exterior and parking lot of the Premises under the terms of the Lease, (3) the 3 days notice is fatally defective to the extent it demands performance of duties other than the payment of rent, in that the Lease requires 30 days (not 3 days) notice of a failure to perform.

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 Ritchfield 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. Minor 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). 

As to each claim as framed by the complaint, the party 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.)

Once the moving party has met that burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that 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.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

DISCUSSION

“It has long been recognized that the unlawful detainer statutes are to be strictly construed and the relief not statutorily authorized may not be given due to the summary nature of the proceedings.”  (WDT-Winchester v. Nilsson (1994) 27 Cal.App.4^th 516, 526.)  The statutory requirements in such proceedings “must be followed strictly, otherwise a landlord’s remedy is an ordinary suit for breach of contract with all the delays that remedy normally involves and without restitution of the demised property.”  (Id. (citations omitted).)  Thus, a landlord who invokes the summary procedures of unlawful detainer must “strictly comply with the notice requirements of the statute under which he/she elects to proceed.”  (Id. (citations omitted).) 

Here, all the failures alleged in the Complaint and the 3-Day Notice do not involve a failure to pay rent.  If the default is other than for failure to pay rent, the Lease provides that a default does not occur until 30 days notice of the alleged default is given to Tenant.  (Ex. A to Almudarris Decl., Section 15.)  The provisions of the Lease govern.  In commercial leases, the landlord and tenant may “lawfully agree to notice procedures that differ from those provided in the statutory provisions governing unlawful detainer.”  (Folberg v. Clara G.R. Kinney Co. (1980) 104 Cal.App.3d 136, 140-141.)  If the lease contains notice requirements at variance with the requirements in the unlawful detainer statutes, the lease provisions control.  (Folberg, 104 Cal.App.3d at 141; Culver Center Partners East No. 1, L.P. v. Baja Fresh Westlake Village, Inc. (2010) 185 Cal.App.4^th 744, 750.)  Here, contrary to the terms of the Lease, Landlord only gave 3 days notice for each of the alleged failures. Accordingly, the 3 days notice was invalid and cannot support an unlawful detainer.      

Landlord argues that the Lease does not modify the statutory requirements for a 3-Day Notice under Code Civ. Proc. §1161 et seq.  Landlord argues that the 30 day notice requirements under the Lease only relate to notices of breach under the Lease, not notices to quit.  But the notice provisions do not have to reference the statute in order to modify the notice requirements of a notice to quit.  In Culver City Partners East No. 1, L.P. v. Baja Fresh Westlake Village Inc., the lease provided: “All notices, consents, approvals or demands required under this Lease shall be in writing and shall be deemed delivered when either (a) deposited in the United States mail, certified or registered, postage prepaid, (b) transmitted by telegraphic or electronic means, with proof of service provided, or (c) delivered in person, in any event addressed to or delivered to the appropriate party at [address omitted].”  Id. at 747.  The Court of Appeal held that the 3-Day notice supporting the unlawful detainer failed to comply with these requirements and affirmed a summary judgment for the tenant.  Id. at 749-751.  Culver City confirms that notice provisions in a commercial lease apply to 3-Day notices, even if the lease does not specifically reference Section 1161 or a notice to quit.     

Landlord next argues that the Lease has no notice requirements for a forfeiture.  Paragraph 15(b) of the Lease states that “Landlord can, at its option, terminate Tenant’s right of possession at any time.”  This section, however, must be read in conjunction with other provisions of the Lease.  While the Landlord may terminate the Lease at its option, it must do so in compliance with the notice provisions in the Lease, otherwise those provisions are rendered superfluous.  (Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1507 (“when interpreting a  contract, we strive to interpret the parties' agreement to give effect to all of a contract's terms, and to avoid interpretations that render any portion superfluous, void or inexplicable”).)

Landlord also argues that it has “substantially complied” with the requirements of the Lease because it sent an email dated July 2, 2021 to Tenant and it filed the Complaint in April 2022, which provides the required 30 days notice of default.  The Lease provides that: “Notices given under this paragraph shall specify the alleged default and the applicable lease provisions, and shall demand that Tenant perform the provision of this Lease or pay the rent that is in arrears as the case may be, within the applicable period of time.  No such notice shall be deemed a forfeiture or a termination of this Lease unless Landlord so elects in the notice.”  The July 2, 2021 email does not meet the requirements of the foregoing notice provision.  It does not state that each of the alleged failures in the 3 days notice constitute a default; identify the applicable lease provisions that were allegedly violated; demand that Tenant perform the provisions of the lease within “the applicable period of time,” or state that the Landlord is terminating the Lease or forfeiting the Premises.  In an unlawful detainer, a summary proceeding, Landlord must strictly comply with the notice requirements in the Lease.  (Culver City, 185 Cal.App.4^th at 752 (even actual notice does not cure failure to serve in accordance with notice provisions in the lease).)  Nor can the filing of the Complaint constitute the required notice.  The Lease clearly contemplates that a notice must be provided before a lawsuit is filed.  Otherwise, the notice provision is entirely void.       

CONCLUSION

Based on the foregoing, the Court GRANTS Defendant’s motion for summary judgment.

IT IS SO ORDERED.

DATED: December 12, 2022                                              ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court