Judge: George F. Bird, Jr., Case: 22CMUD01194, Date: 2023-02-10 Tentative Ruling

Case Number: 22CMUD01194    Hearing Date: February 10, 2023    Dept: B

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.       BACKGROUND

             Plaintiff Franklyn Harris, as trustee of the Jeffrey Harris Trust (“Plaintiff”), filed the Complaint for unlawful detainer on September 21, 2022, alleging that Defendant Lonnie Walker and Plaintiff entered into a written lease agreement for a month-to-month tenancy at a property owned by Plaintiff located at 1919 E. 122^nd Street, Unit #5, Compton, CA 90222 (the “Property”). (Complaint (“Compl.”), ¶¶ 3(a), 6.) Plaintiff alleges that a Notice to Perform Conditions and Covenants or Quit was served on August 18, 2022, because an unauthorized male was allegedly occupying the Property in violation of the lease. (Compl., ¶ 9, Exhibit 4.) Subsequently, a Three Day Notice to Quit was served on September 1, 2022. (Compl., ¶ 9; Exhibit 3.) Plaintiff seeks forfeiture of the agreement, attorney’s fees, and holdover damages. (Compl., ¶ 19.) On September 28, 2022, Claimant Willie Lee James, Jr. filed a Prejudgment Claim of Right to Possession of the Property. Default was entered against Defendant Lonnie Walker on November 18, 2022.

II.       MOTION FOR SUMMARY JUDGMENT

A.    Plaintiff filed this Motion for Summary Judgment on January 26, 2022.

            Plaintiff brings this Motion for Summary Judgment as to Defendant Lonnie Walker. (Plaintiff’s Motion for Summary Judgment, p. 3:4-7.) Plaintiff argues that, because the court has ordered several requests for admissions as admitted as to Claimant Willie Lee James, Jr., there are no material facts in dispute and Plaintiff is now entitled to summary judgment.

B.     Defendant Lonnie Walker has not filed an opposition.

            Because default has been entered against Defendant Lonnie Walker, he has no right to participate in proceedings and his right to appear has been cut off. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385 [202 Cal.Rptr. 204, 207].)

III.       LEGAL STANDARDS

            A summary judgment motion in an unlawful detainer case “shall be granted or denied on the same basis as a motion under Section 437c.” (Code Civ. Proc., § 1170.7.) Code of Civil Procedure section 473c allows a party to file a summary judgment motion “… if it is contended that the action has no merit or that there is no defense to the action or proceeding… ” and 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 a judgment as a matter of law.” (Code Civ. Proc., § 437c.)

            Because Plaintiff is bringing this Motion for Summary Judgment, they have the initial burden of proof to show “that there is no defense to a cause of action” by “prov[ing] each element of the cause of action entitling the party to judgment on the cause of action. Once the 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 the cause of action or a defense thereto. The defendant ... 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.” (Code Civ. Proc., § 437c, subd. (p)(1).)   

IV.       DISCUSSION

            In Plaintiff’s Motion for Summary Judgment, the Defendant is identified as “Defendant Walker.” (Plaintiff’s Motion for Summary Judgment, p. 3:7-8.) Plaintiff then mischaracterizes the Court’s ruling on January 20, 2023. On January 20, 2023, the Honorable Judge Victor M. Acevedo ordered that the requests for admissions were deemed admitted against Claimant Willie Lee James, Jr., not Defendant Lonnie Walker. “ … [A]ny admission made by a party under this section is binding only on that party and is made for the purpose of the pending action only.” (Italics added for emphasis.) (Code Civ. Proc., § 2033.410, subd. (b).) Plaintiff must demonstrate each element of a cause of action for unlawful detainer without reference to the requests for admission deemed admitted against Claimant Willie Lee James, Jr.. Because default has been entered against Defendant Lonnie Walker, the factual allegations in the complaint are deemed admitted. (Vasey v. California Dance Co. (1977) 70 Cal.App.3d 742, 749 [139 Cal.Rptr. 72, 76].)

            “Before an owner of residential real property issues a notice to terminate a tenancy for just cause that is a curable lease violation, the owner shall first give notice of the violation to the tenant with an opportunity to cure the violation pursuant to paragraph (3) of Section 1161 of the Code of Civil Procedure. If the violation is not cured within the time period set forth in the notice, a three-day notice to quit without an opportunity to cure may thereafter be served to terminate the tenancy.” (Civ. Code, § 1946.2, subd. (c).) “A tenant of real property, for a term less than life … is guilty of unlawful detainer: … When the tenant continues in possession, in person or by subtenant, after a neglect or failure to perform other conditions or covenants of the lease or agreement under which the property is held … and three days' notice, excluding Saturdays and Sundays and other judicial holidays, in writing, requiring the performance of those conditions or covenants….” (Code Civ. Proc., § 1161, subd. (3).)

            Plaintiff alleges that they served a Notice to Perform Conditions and Covenants or Quit on August 18, 2022, by posting the notice on the Property and mailing the notice to “LONNIE WALKER AND ALL OTHERS IN POSSESSION 1919 E, 122ND STREET, UNIT #5 COMPTON, CA 90222.” (Compl., ¶ (9)(a)(6), Exhibit 4, Exhibit 5.) The notice states that the lease is violated by having an unauthorized male person occupying the Premises. (Compl., Exhibit 4.) The lease attached to the Complaint states “Occupancy of the dwellingunit shall be limited to those persons listed upon the approved application for assistance with the PHA, which is 1 adult(s) and 0 minor(s). Any changes in the Tenant Family composition must be approved by the PHA.” (Compl., Exhibit 1.)

            A notice may be served “If such place of residence and business cannot be ascertained, or a person of suitable age or discretion there can not be found, then by affixing a copy in a conspicuous place on the property, and also delivering a copy to a person there residing, if such person can be found; and also sending a copy through the mail addressed to the tenant at the place where the property is situated.” (Code Civ. Proc., § 1162, subd. (a)(3).) The declaration of the process server with the proof of service demonstrates that nobody of suitable age or discretion was present at any know residence or place of business of the tenant. (Compl., Exhibit 5.) Plaintiff has demonstrated that Defendant Lonnie Walker was adequately notified and given an opportunity to cure the violation.

            Plaintiff alleges that a Three Day Notice to Quit was served on September 1, 2022, because Defendant Lonnie Walker failed to cure the violation, by posting the notice on the Property and mailing the notice to “LONNIE WALKER AND ALL OTHERS IN POSSESSION 1919 E. 122ND STREET, UNIT #5 COMPTON, CA 90222.” (Compl., ¶ (9)(a)(6), Exhibit 2, Exhibit 3.) Again, the declaration of the process server with the proof of service demonstrates that nobody of suitable age or discretion was present at any know residence or place of business of the tenant. (Compl., Exhibit 3.) Because the three day notice does not include Saturday, Sunday, or the judicial holiday of Labor Day on September 5, 2022, the three day notice expired at the end of day on September 7, 2022. (Code Civ. Proc., § 1162, subd. (a)(3).) Plaintiff has demonstrated that the Three Day Notice to Quit was properly served on Defendant Lonnie Walker and that the notice has now expired. Plaintiff alleges that Defendant Lonnie Walker was in possession of the Property after the Three Day Notice to Quit expired. (Compl., ¶ (3)(a).)

            Because Plaintiff has demonstrated a prima facie showing of every element of the cause of action for unlawful detainer, the burden shifts to Defendant Lonnie Walker to demonstrate a triable issue of material fact. Because default was entered against Defendant Lonnie Walker, it is unlikely he will be able to vacate the default and present a triable issue of material fact.

V.    CONCLUSION

             Based on the foregoing, this Motion for Summary Judgment is GRANTED as to Defendant Lonnie Walker. The lease agreement between Plaintiff and Defendant Lonnie Walker is forfeited. Plaintiff is entitled to reasonable attorney fees as provided in the written agreement between the parties. (Motion for Summary Judgment, Exhibit 1 ¶ 22(H).) Plaintiff is entitled to holdover damages in the daily amount of $32.80 from September 8, 2022, the day after the Three Day Notice to Quit expired, through February 9, 2023, the day of this judgment, which is 154 days totaling $5,051.20 in holdover damages.

Dated: February 9, 2023                                                     _________________________

                                                                                                Judge of the Superior Court