Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is an unlawful detainer case.  Plaintiffs Benjamin Schick and Sylvia K. Patton, Trustee for Living Trust own the property located at 1202 Abbott Kinney Blvd., Venice, California (the “Premises”).  (Schick Decl. ¶ 4.)  Plaintiffs entered into a commercial lease with Defendant Loco Venice, LLC (Ex. 1 to Schick Decl.), which operates a fast food restaurant at the Premises.   

The term of the Lease is ten years.  (Schick Decl. ¶6.)  The initial monthly base rent was $18,000.  The current monthly base rent is $20,500.  On or about October 9, 2023, the parties agreed that ½ of Defendant’s monthly rent would be paid on the 1st and 15th of each month.  (Schick Decl. ¶¶ 7-8, 10, Ex. 1 p. 45.)  Defendant failed to pay rent starting February 2024, but continue in possession of the Premises.  (Schick Decl. ¶¶ 12, 16, 17.)   

Plaintiffs served a Five Business Days’ Notice to Pay Estimated Rent or Quit Pursuant to Code of Civil Procedure 1161.1 (the “Notice”).  (Id. ¶12.)  The notice states the amount that is due and the name, telephone number and address of the person to whom the rent shall be made.  (Ex. 2.)  The notice was served by posting and mailing.  (Ex. 3.)   

This hearing is on Plaintiffs’ motion for summary judgment or in the alternative for summary adjudication.  Plaintiffs seek summary judgment for possession only.  They intend to seek recovery of past due rent and damages in a separate action.  They argue there is no disputed issue that Defendant failed to pay rent.  In the event summary judgment is not granted, they seek summary adjudication against Defendant’s affirmative defenses.  There was no opposition filed as of the posting of this tentative ruling.   

LEGAL STANDARD  

A¿plaintiff, in order to prevail on a¿motion for summary judgment, must establish the elements of all of his claims.  Pursuant to¿Code of Civil Procedure § 437(p)(1), 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. (Code Civ. Proc. § 437(p)(1).)  

In evaluating a motion for summary judgment or summary adjudication, the court engages in a three-step process.  First, the Court identifies the issues framed by the pleadings.  The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima¿(1991) 231 Cal.App.3d 367, 381-382).  The Court cannot consider an unpleaded issue in ruling on motion for summary judgment or adjudication.¿ (Roth v. Rhodes¿(1994) 25 Cal.App.4th 530, 541.)   

Second, the Court is required to determine whether the moving party has met its burden.  A¿plaintiff¿moving for summary judgment must establish all elements of a cause of action but is¿not required¿to disprove any¿affirmative defense¿asserted by the defendant.¿(WRI Opportunity Loans II, LLC v. Cooper (2007) 154¿Cal.App.4th¿525, 532.) 

However, when a plaintiff moves for summary adjudication on an affirmative defense, the court shall grant the motion only if it “completely disposes of” the affirmative defense. (Code Civ. Proc. § 437c(f)(1).)  When a plaintiff moves for summary adjudication on an affirmative defense, the plaintiff bears the initial burden to show there is no triable issue of material fact as to the affirmative defense and that he or she is entitled to judgment on the affirmative defense as a matter of law.  (Code Civ. Proc., § 437c(f);¿See's¿Candy Shops, Inc. v. Superior Court¿(2012) 210 Cal.App.4th 889, 900.)  In so doing, the plaintiff must negate an essential element of the affirmative defense, or establish the defendant does not possess and cannot reasonably obtain evidence needed to support the defense. (Code Civ. Proc., § 437c(f);¿See’s¿Candy Shops, Inc.,¿210 Cal.App.4th at 900.)   

If the plaintiff does not make this showing, it is unnecessary to examine the defendant's opposing evidence and the motion must be denied.  However, if the moving papers establish a prima facie showing that justifies a ruling in the plaintiff’s favor, the burden then shifts to the defendant to make a prima facie showing of the existence of a triable material factual issue.  (Code Civ. Proc., § 437c(f);¿See's¿Candy Shops, Inc.,¿210 Cal.App.4th at 900.) 

Third, once the moving party has met its burden, the¿burden shifts to the opposing party to show that a material factual issue exists as to the affirmative defense alleged or a defense to it. (Code Civ. Proc., § 437c(p)(1).)  In ruling on the motion, the court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 843.) 

DISCUSSION 

A cause of action¿for unlawful detainer is a summary proceeding designed to provide an expeditious remedy to recover possession of real property.¿(Coyne v. De Leo¿(2018) 26 Cal.App.5th 801, 805.)  The standard¿elements¿of an¿unlawful detainer¿action for nonpayment of rent are (1) the tenant is in possession of the premises, (2) the tenant is in default for nonpayment of rent, (3) the tenant has been properly served with written notice to pay rent or quit of no less than three days, and (4) the tenant’s default continues after the three-day notice period has elapsed.  (Code Civ. Proc., § 1161, subd. (2);¿Bawa v. Terhune¿(2019) 33 Cal.App.5th Supp. 1, 5–6.)  Due to the summary nature of the proceeding, strict compliance with the statutory requirements is a prerequisite to a landlord’s recovery of possession. (Dr. Leevil, LLC v. Westlake Health Care Center¿(2018) 6 Cal.5th 474, 480.) 

All of the factual elements supporting Plaintiffs’ right to possession are undisputed.  First, Defendant, as the tenant, has continued in possession without Plaintiffs’ permission. (Schick Decl. ¶ 16.)  Second, Defendant has defaulted in the payment of rent.  (Id. ¶17.)  Third, five days’ written notice consistent with the statute stating the amount that is due was properly served upon Defendant. (Exs. 2 and 3; Schick Decl. ¶¶ 12, 14).  Fourth, Defendant’s default continued after the five day notice period elapsed.  (Schick Decl. ¶¶ 16, 17.)   

Plaintiffs’ evidence proves without dispute that the Notice was properly served.  The Notice was served in three different manners to assure service. (Ex. 3).  Paragraph 23 of the Lease (Ex. 1, page 17) provides that:  

“All notices required or permitted by this Lease or applicable law shall be in writing and may be delivered in person (by hand or courier) or may be sent by regular, certified or registered mail or US Postal Service Express Mail, with postage prepaid, or by facsimile transmission, and shall be deemed sufficiently given if served in a manner specified in this Paragraph 23. The addresses noted adjacent to a Party's signature on this Lease shall be that Party's address for delivery of mailing of notices.”  

Plaintiffs served the Notice by U.S. mail in accordance with the Lease on April 24, 2024 to: Loco Venice, LLC, 157 East 64th St., Fl 3, New York, NY 10065 (Lorman Dec., ¶ 5, Ex. 3) 

Plaintiffs also served the Notice by mailing on April 24, 2024 to the address in the Lease as follows: Max Alcobi Loco Venice, LLC 4545 San Blas Ave. Woodland Hills, CA 91364 (Lorman Dec., ¶ 6, Ex. 2.)  Additionally, Plaintiffs served the Notice by posting and mailing on May 8, 2024 to the rental Premises as follows: Loco Venice, LLC 1202 Abbott Kinney Blvd. Venice, CA 90291 (Lorman Dec., ¶ 7, Ex. 2.)   

The proofs of service of the notice prove they were properly served by a registered process server.  The return of a process server “establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.”  (Evid. Code, § 647.) 

Defendant’s Answer denied paragraphs 9 and 10 of the Complaint relating to the contents of the Notice and its service.  However, Defendant has no facts supporting such denial that would rebut the statutory presumption of proper service.  Plaintiffs’ Special Interrogatory No. 4 required Defendant to set forth facts supporting any claim about the alleged improper service of the Notice.  Defendant admitted it has no such facts.   

Plaintiffs’ Special Interrogatory No. 4 required that the following information be provided: “DESCRIBE all of the facts which support YOUR affirmative defense that the NOTICE (the term “NOTICE” refers to that Notice to Quit alleged in the COMPLAINT [the term “COMPLAINT” refers to the Complaint filed by PLAINTIFFS in this action] and attached to the COMPLAINT as Exhibit 2) was improperly served.”  

Defendant admitted in its response that it has no facts supporting this alleged denial of proper service: “4. Responding party objects on the grounds that as phrased, the interrogatory is vague, ambiguous, compound, overbroad, harassing, calls for a legal conclusion and violates attorney work product. Subject to said objections and without waiving same, responding party asserted said defense to preserve its rights and, at present, has no facts supporting said defense.”  

Thus, Defendant has admitted in discovery that Defendant has no facts essential to support its denial of allegation that the Notices were properly served. Thus, this denial does not raise any triable issue of fact.  

CONCLUSION 

For the foregoing reasons, the Court GRANTS Plaintiffs’ motion for summary judgment.   

 

IT IS SO ORDERED. 

 

DATED: September 12, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court