Judge: Frank M. Tavelman, Case: 21BBCV00526, Date: 2023-09-01 Tentative Ruling

Case Number: 21BBCV00526    Hearing Date: September 1, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTIONS FOR SUMMARY JUDGMENT

ALLEGATIONS: 

On September 22, 2022, El Pegasus, LLC (“Plaintiff” or “Cross-Defendant”) filed an unlawful detainer action against Debra and Shawn Kaye (collectively the “Kayes”) (case number 22PDUD02396). Plaintiff alleges that Defendants had a month-to-month tenancy for $2,400 a month with a fair market rental value of $80 a day. At the time of the statutory notice to pay rent or quit, unpaid rent requested was $4,800, and additional damages are requested from September 1, 2022.

On June 7, 2021, the Kayes filed suit against El Pegasus, LLC and Marvin Blum alleging, in a Second-Amended Complaint, violations of Los Angeles Municipal Code §49.99 et seq. (Los Angeles City Eviction Moratorium). Cross-Complainants assert that Cross-Defendants issued multiple defective statutory notices to pay rent or quit. The two matters were consolidated, and the parties waiving jury.

The Court held a non-jury trial on April 24, 25 and 26th of 2023. On June 28, 2023, judgment was entered against the Kayes in the unlawful detainer matter, and they were ordered to vacate the premises. On July 31, 2023, Edith Azer (“Defendant”) filed a prejudgment claim of right to possession. Defendant is the mother of Debra Kaye and claims to have lived on the property for a year prior to the unlawful detainer action.

Plaintiff now moves for summary judgement as against Defendant’s claim of right to possession. Defendant cross-moves for summary judgment, arguing Plaintiff’s unlawful detainer claim has no merit.

ANALYSIS: 

I.                LEGAL STANDARD 

A motion for summary judgment may be made in an unlawful detainer action at any time after the answer is filed on giving five days’ notice. Summary judgment must be granted or denied on the same basis as a motion for summary judgment in any other civil action under C.C.P. § 437c. (C.C.P. § 1170.7.)

In an unlawful detainer action, the requirements differ from non-unlawful detainer summary judgment motions as follows: a separate statement need not be filed in support of or in opposition to a motion for summary judgment in an unlawful detainer action C.C.P. § 437c(b), (s), the provisions of C.C.P. § 437c(a)-(b) concerning the time for making and hearing the motion do not apply to unlawful detainer actions C.C.P. § 437c(s), and the provisions for summary judgment set forth in C.C.P. § 437c do not extend the period for trial in an unlawful detainer action specified in C.C.P. § 1170.5. (C.C.P. §437c(r).)

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (C.C.P. § 437c (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord C.C.P. § 437c(p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangsterv. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Where the plaintiff is the moving party, “the plaintiff’s burden of proof on such a motion is defined by subdivision (p)(1) of Code of Civil Procedure, section 437c; the plaintiff must ‘prove each element of the cause of action entitling the party to judgment on that cause of action.’” (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 241.)

II.              MERITS

Defendant’s primary argument in her motion is that she is a tenant at will by virtue of the plaintiff’s implied consent to reside at the property. Defendant quotes the following from Covina Manor, Inc. v. Hatch (1955) 133 Cal.App.2d Supp. 790:

A tenancy at will is an estate which simply confers a right to the possession of premises leased for such indefinite period as both parties shall determine such possession shall continue. The tenant at will is in possession by right with the consent of the landlord either express or implied, and he does not begin to hold unlawfully until the termination of his tenancy. His estate is a leasehold and he holds in subordination to the title of the landlord. A permissive occupation of real estate, where no rent is reserved or paid and no time agreed on to limit the occupation, is a tenancy at will.

(Covina Manor supra, 133 Cal.App.2d Supp. 790 at 793 [internal quotation marks and citations omitted])

It appears to the Court that the determining factor in whether Defendant is a tenant at will is whether she resided on the property with the “implied consent” of Plaintiff. Defendant argues Plaintiff’s consent to reside on the premises is implied by its failure to request her removal in the year that Defendant lived there and their failure to include a limitation on subleasing and assignment in their oral agreement with the Kaye’s. Plaintiff argues in turn that the undisputed material facts indicate Defendant and Plaintiff had no relationship and that Plaintiff was entirely unaware that Defendant resided at the property until after the lawsuit was initiated. (Poindexter Decl. Exh 1, Fleck Decl. ¶ 2, Azer Decl. ¶ 5.)

The Court finds Defendant’s legal theory as to a tenancy at will to be unconvincing. Typically, implied consent to tenancy is established by the acceptance of rent. (See Cobb v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2002) 98 Cal.App.4th 345.)  Plaintiff cites to no legal authority that a landlord’s failure to strictly prohibit sublease/assignment constitutes implied consent.  Defendant’s opposition goes on at length about how Plaintiff could have restricted these rights at any time in the Kayes eleven-year residence but does not present a single case or statute stating this creates implied consent. Defendant only cites to the California Eviction Defense Manual, which is not controlling authority. Further, the cases relied upon by the section Defendant cites specifically contemplate the creation of a tenancy with the consent of the landlord. (See Covinas Manor supra; Hull v Laugharn (1934) 3 Cal.App.2d 310, 314.) Covinas Manor even explicitly states that where not rent is paid a permissive occupation is a tenancy at will. Covinas Manor supra, at 793.)  Defendant presents no facts which indicate that Plaintiff ever gave her permission to occupy the premises.  

Further, Defendant advances no facts to support that Plaintiff was aware of her presence during her residency. Defendant only offers the declaration of Azer herself, which states:

On information and belief, Plaintiff has been aware of my presence and tenancy since before the filing of the above-captioned matter, but at least since early 2023, when my daughter Debra Kaye gave deposition testimony in the above-captioned matter identifying the fact that I am a tenant at the Subject Premises and that the beginning of my tenancy predated the filing of the Summons and Complaint in the above-captioned matter. I will lodge a copy of the relevant portion of her deposition testimony once I obtain a copy.

Defendant’s statement comes in two parts. First, Defendant states that “upon information and belief” Plaintiff was aware of her presence prior to filing the action. Defendant offers no factual basis on which to base this part of her statement.  Defendant does not state she was present at the deposition, and the Court can only infer that this information would be hearsay and without any foundation.  In other words, it was not based on Defendant’s personal knowledge.  Second, Defendant states Plaintiff was at least aware of her residence when her daughter Debra Kaye testified as such at a deposition in early 2023. However, Defendant fails to set forth the exact testimony or attach copies of the testimony. (Azer Decl. ¶ 6.)   Furthermore, the even if true, such a fact would not be determinative.

The Court finds Azer’s declaration is insufficient to raise a triable issue of fact as to Plaintiff’s knowledge of her residence prior to filing the action. (See Lopez v. University Partners (1997) 54 Cal.App.4th 1117 at 1124 [“Declarations based on information and belief are insufficient to satisfy the burden of either the moving or opposing party on a motion for summary judgment or adjudication.”]

The Court also finds Defendant has advanced no evidence regarding the deposition of Debra Kaye. Further, such evidence would likely be irrelevant to establishing implied consent. Plaintiff’s awareness of Defendant’s residence would have come long after Plaintiff initiated its action for unlawful detainer. It stands to reason that if Plaintiff had initiated an action for unlawful detainer against the tenants of the property, it was not impliedly consenting to Defendant’s residence there. Plaintiff’s every action in the matter indicates no consent was given to continue residing at the property after Plaintiff discovered Defendant’s residence.

The Court finds two cases helpful in analyzing Defendant’s tenant at will argument. First is Miller & Desatnik Management Co. v. Bullock (1990) 221 Cal.App.3d Supp. 13. In Miller, plaintiff brought an unlawful detainer agreement against the mother a former tenant. The former tenant resided in the apartment pursuant to a month-to-month lease until she passed away. (Id. at 16.)  The former tenants mother then assumed the rent payments for a period of four years without informing the landlord that the tenant had passed away. (Id.) Although the mother visited the apartment frequently, she never resided there. (Id.) Eventually the landlord discovered the tenants death, refused to accept further rent payments, and initiated an action for unlawful detainer. (Id.) The trial court granted judgment in the mother’s favor finding the rental agreement and tenancy survived the former tenants death and that the mother was a tenant entitled to retain possession. (Id.) The Appellate Court reversed, finding that a month-to-month tenancy terminates upon death. (Id. at 17.) The court further held that notice under the rent control statue was not required in this instance. (Id at 19.) The court ultimately held that the mother was not a tenant, subtenant, or lessee under the rental agreement. (Id.)

In its holding the Miller court contrasted its fact pattern with that in Parkmerced Co. v. San Francisco Rent Stabilization & Arbitration Bd. (1989) 215 Cal.App.3d 490. In Parkmerced the Appellate court found the sister of a previous tenant was herself a tenant and entitled to rent stabilization, despite not having executed the initial lease. (Parkmerced supra, 215 Cal.App.3d 490 at 492.) The sister in Parkmerced was living with the tenant on the lease for several years in open knowledge of the landlord. (Id.) The sister’s name was included in the lease renewal each year and the brother informed the landlord that the sister would be staying after the lease expired. (Id.) Plaintiff also repeatedly accepted checks issued by the sister in satisfaction of rent. (Id. at 494.) Considering all of the above, the Appellate Court determined the sister was a tenant in a month-to-month agreement until such time as she filed a formal lease. (Id.)

In analyzing these cases and applying their holdings to the facts here, Defendant is not a tenant at will. Plaintiff was unaware of Defendant’s existence and Defendant never availed herself of Plaintiff in any way by paying rent or giving notice of occupancy. Defendant has provided no authority which would show that she can establish a tenancy at will simply because Plaintiff did not explicitly limit the Kaye’s ability to sublet.

In her opposition to Plaintiff’s motion, Defendant advances an alternative theory of tenancy derived from her interpretation of Civil Code §§ 1940, 1940.1, and 1943. Defendant argues that because Civil Code § 1940 defines persons “who hire dwelling units” in such a way that payment of rent is not required. The Court finds Defendant’s application of these statutes to be misguided. Defendants interpretation of the statue completely ignores Civil Code § 1925 which defines hiring as “a contract by which one gives another the temporary possession and use of property, other than money owed, for reward, and the latter agrees to return the same to the former at a future time.” Defendant and Plaintiff have no contract, Defendant explicitly admits this fact. Defendant has shown no agreement between herself and Plaintiff to temporarily use the property in exchange for reward, expressly or impliedly. Defendant, by plain reading of the statute, has not “hired” this property and is not a “hirer” for purposes of Civil Code § 1940.

There exists a case in which it has been held that a person who does not pay rent may be a hirer. In Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, the California Sixth District Appellate Court found a triable issue of fact as to whether a person not paying rent was a hirer of property. The plaintiff in Spinks resided on the property after the termination of her employment which explicitly granted her the dwelling as compensation. (Spinks supra, 171 Cal.App.4th 1004 at 1036.) In addition, defendants were aware of the fact that plaintiff was granted the apartment as compensation for her job. As such the court found a triable issue of fact as to whether plaintiff hired the property. Here, in contrast to the plaintiff in Spinks, there is no contract, there is no agreement of compensation, and there is no knowledge of the defendant. None of the requisite factual findings are present which would make Defendant a hirer of Plaintiffs property. 

However, Plaintiff also seeks to hold Defendant liable for unpaid rent jointly and severally with the Kayes. Plaintiff’s argument on this matter is scant and contains no citation to authority. The Court agrees that if Defendant were determined to be a tenant at will, Plaintiff could seek to hold her liable for the unpaid rent. However, in the absence of Defendant’s status as a tenant, the Court is aware of no authority which allows her to be held liable.

III.            CONCLUSION

Accordingly, Plaintiff’s motion for summary judgment is GRANTED. The Court finds that Plaintiff is entitled to possession of the premises, however Defendant is not liable for the $25,840.00 in outstanding rent, as she is a non-tenant. The Court does not opine as to damages that may accrue if Defendant wrongfully retains possession of the property.

Conversely, Defendant’s cross motion for summary judgment is DENIED. Defendant does not present a triable issue of material fact as to whether she has a legal right to remain on the premises.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

El Pegasus, LLC’s Motion for Summary Judgment came on regularly for hearing on September 1, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IS GRANTED.

DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT IS DENIED.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF TO GIVE NOTICE. 

IT IS SO ORDERED. 

DATE:  September 1, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles