Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Plaintiff DSC-America Inc. 

RESPONDING PARTY: Defendant Dung T. Nguyen 

 

BACKGROUND 

This is an unlawful detainer action.   The leased premises at issue is located at 9178 W. Olympic Blvd, Beverly Hills, California (the “Premises”).  Plaintiff DSC-America Inc. is the current owner of the Premises (the “Landlord”), and Defendant Dung T. Nguyen is the current lessee (the “Tenant”).  Landlord’s predecessor-in-interest entered into a written Lease with Tenant’s predecessor-in-interest (the “Lease”).  (Sachse Decl. ¶ 3; Ex. A to Sasche Decl.)  

Section 4.A of the Lease provides that Tenant agrees to pay to Landlord “Minimum Rent.”  (Sachse Decl. ¶ 5; Ex. A to Sachse Decl.)   Tenant has failed to pay the Minimum Rent for the months of February 2022 to January 2023, in the total amount of $28,489.12.  (Sachse Decl. ¶ 5.)   

Section 7.B(I) of the Lease provides that in addition to Minimum Rent, Tenant shall pay to Landlord additional rent, which includes among other things real estate taxes and insurance premiums.  (Sachse Decl. ¶¶ 7-8; Ex. A to Sachse Decl.)  Tenant has failed to pay additional rent for the months of February 2022 to January 2023 in the total amount of $16,995.  (Sachse Decl. ¶ 9.) 

The daily damages for the Premises equal $135.94 per day.  This amount is calculated by multiplying the monthly rent for January 2023 of $4,134.92 by twelve months (equaling $49,519.04) and dividing that product by 365 days which equals $135.94.  (Sachse Decl. ¶ 16.) 

On or about January 11, 2023, Landlord duly served a 3-Day Notice to pay rent or quit for the then current amount of rent due, $45,484.12 (the “3-Day Notice”).  (Sachse Decl. ¶ 11.)  The 3-Day Notice requested Tenant to either pay the full outstanding rent, within three days, or vacate the Premises.  (Sachse Decl. ¶ 12.)  Further, the 3-Day Notice informed Tenant that failure to either pay the outstanding rent or vacate the Premises would result in a forfeiture of the Lease and Plaintiff’s filing of the present action to recover possession of the Premises, unpaid rent and attorneys’ fees and costs.  (Sachse Decl. ¶ 13.)  More than 3 days have elapsed since the service of the 3-Day Notice and Tenant continues to refuse to vacate the Premises and has failed to pay the entire amount of rent set forth in the 3-Day Notice.  (Sachse Decl. ¶ 14.) 

As Defendant failed to vacate the premises, Plaintiff filed the instant action for unlawful detainer upon expiration of the 3-Day Notice.  (Sachse Decl. ¶ 15.)  Defendant is still in possession of the Premises.  (Sachse Decl. ¶ 19.)            

Section 33(xv) of the Lease contains an attorneys’ fees provision.  (Ex. A to Sachse Decl.)  The provision states that “should it be necessary for Landlord to employ legal counsel to enforce any of the provisions herein contained, Tenant agrees to pay all attorneys’ fees and court costs reasonably incurred.”  (Sachse Decl. ¶ 20; Ex. A to Sachse Decl.)  

This hearing is on Landlord’s motion for summary judgment on its sole cause of action for unlawful detainer.  Landlord contends it has established each element of the claim, and Tenant cannot produce any admissible evidence to negate an element of the claim or establish a defense. 

LEGAL STANDARD  

The provisions of Code Civ. Proc. § 437c concerning the time of making and hearing a motion for summary judgment do not apply to an unlawful detainer action.  A motion for summary judgment on an unlawful detainer action may be made on five days’ notice after an answer is filed.  (Code Civ. Proc. § 1170.7.)  Moreover, there is no requirement for a separate statement.  (Code Civ. Proc. § 437c(r).)  Notwithstanding, summary judgment in an unlawful detainer action should be granted on the same basis as a motion for summary judgment in any other civil action.  (Code Civ. Proc. §1170.7, Cal. Rules of Court, rule 3.1351(a).)   

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, a plaintiff moving for summary judgment must satisfy the initial burden of proof by presenting facts to establish each essential element.  (Code Civ. Proc. §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 plaintiff moving for summary judgment is not required to disprove any defenses asserted by a defendant.  All that a plaintiff needs to do is to prove each element of its cause of action.  (Aguilar, 25 Cal.4th at 849; Certain Underwriters at Lloyd's of London v. Superior Court (1997) 56 Cal.App.4th 952, 957, fn. 4.) 

Once plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  (Id.)  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.) 

REQUEST FOR JUDICIAL NOTICE 

Landlord seeks judicial notice of (1) the 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, dated January 25, 2022, and (2) California State Assembly Bill No. 1482, an act to add and repeal Sections 1946.2, 1947.12, and 1947.13 of the Civil Code, dated October 8, 2019.  The Court grants the request for judicial notice pursuant to Evid. Code §§ 452(b), 452(h).   

DISCUSSION 

The Complaint alleges a single cause of action for unlawful detainer.  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 (internal citations omitted).)   

Here, Landlord’s summary judgment motion is unopposed as of the time of the posting of this tentative ruling.  Plaintiff provides undisputed evidence that (1) the tenant is in possession of the premises (Sachse Decl. ¶19); (2) that possession is without permission (Sachse Decl. ¶14); (3) the tenant is in default for nonpayment of rent (Sasche Decl. ¶10); (4) the tenant has been properly served with a written three-day notice (Sasche Decl. ¶¶11-13); and (5) the default continues after the three-day notice period has elapsed (Sasche Decl. ¶14).  (Kruger, 232 Cal.App.4th Supp. at 16.)   

The Court does not need to consider Tenant’s affirmative defenses unless Tenant opposes the motion for summary judgment so there is no evidence of the affirmative defenses.  (Roman Catholic Archbishop of L.A. v. Hollister, 2017 Cal. Super. LEXIS 8996 at *54 (in opposing summary judgment defendant bears the burden of showing a triable issue on its affirmative defenses).) 

As to the amount of damages, “[t]he amount of back-due rent is generally limited to that demanded in the three-day notice.  A landlord proceeding by way of a three-day notice for nonpayment of rent may also recover damages for rental losses occurring after the period covered by the three-day notice expires.”  (Hong Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 491–492 (internal citations omitted).)   

Here, the amount of back rent demanded in the 3 Day Notice is $45,484.12.  In addition to back rent, Landlord seeks daily damages in the amount of $135.94 from January 16, 2023 to the date of judgment.  These amounts are unopposed.   

CONCLUSION 

For the foregoing reasons, the Court grants Landlord’s motion for summary judgment on Landlord’s cause of action for unlawful detainer and restores to Plaintiff exclusive possession of the Premises.  Defendants must pay Plaintiff past-due rent in the amount of $45,484.12 and daily damages from January 16, 2023 to the date of Judgment in the amount of $135.94 per day. Pursuant to the Lease, Landlord is also entitled to its attorneys’ fees and costs to be awarded by way of a separate motion. 

 

IT IS SO ORDERED. 

 

DATED: March 21, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court