Judge: H. Jay Ford, III, Case: 22SMCV00267, Date: 2022-10-17 Tentative Ruling

Case Number: 22SMCV00267    Hearing Date: October 17, 2022    Dept: O

  Case Name:  1448 Second Street, LLC v. Blankspaces, LLC, et al.

SUBJECT:               MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:  Plaintiff 1448 Second Street, LLC

RESP. PARTY:        Defendant Blankspaces, LLC

TENTATIVE RULING

            Plaintiff 1448 Second Street, LLC’s Motion for Summary Judgment is DENIED. 

            “A tenant of real property, for a term less than life, or the executor or administrator of the tenant's estate heretofore qualified and now acting or hereafter to be qualified and act, is guilty of unlawful detainer:…2. When the tenant continues in possession…without the permission of the landlord… after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days' notice…”  CCP §1161(2).

            The elements of a claim for termination of a lease for failure to pay rent are (1) plaintiff owns the property; (2) plaintiff leased the property to defendant; (3) that under the lease, defendant was required to pay rent in a specific amount per period; (4) that plaintiff properly gave three days’ written notice to pay the rent or vacate the property; (5) that as of the date of the three day notice, as least the amount stated in the 3-day notice was due; (6) that defendant did not pay the amount stated in the notice within 3 days after service/receipt of the notice; and (7) that defendant is still occupying the property.  CACI 4302.

            Plaintiff establishes ownership of the property.  See SSUMF No. 1, Dec. of M. Ayala, ¶5.  Plaintiff establishes that it leased the property to Defendant.  See SSUMF No. 2; Dec. of M. Ayala, ¶¶7-8; Addendum 2 to Lease.  Plaintiff establishes that Defendant is liable to Plaintiff for minimum monthly rent in the amount of $28,500 until 4-30-21, and $37,500 commencing 5-1-21, plus $1,002 per month in additional rent.  See Declaration of Molly Ayala, 9; Lease Addendum; FMR Rent Determination Letter (Exhibit "E" to Declaration of Catherine Weinberg); Request for Admission no. 11 and admission response (Exhibits "C" and "D" to Declaration of Catherine Weinberg).  Plaintiff establishes that Defendant breached the Lease by failing to pay amounts due under the lease as of 2-22-22 in the amount of $38,502.  See Plaintiff’s SSUMF No. 4, Dec. of M. Ayala, ¶11.  Plaintiff also served Defendant with a 3-day notice to pay rent or quit setting forth an amount due and payable in the amount of $38,502.  See Plaintiff’s SSUMF No. 5; Dec. of C. Weinberg, ¶¶8-9.  Plaintiff establishes that Defendant has not paid the rent due under the 3-day notice.  See Plaintiff’s SSUMF No. 6; Dec. of C. Weinberg, ¶10; Defendant’s Response to RFAs Nos. 1-5.  Plaintiff establishes Defendant is still in possession of the premises.  See Plaintiff’s SSUMF No. 7; Dec. of C. Weinberg, ¶10. 

            However, Plaintiff’s separate statement is completely silent on the element of damages.  Plaintiff’s UMF Nos. 4 and 5 establish that on 2-22-22 the sum due and owing under the lease was $38,502.  None of the UMFs set forth the amount of damages Plaintiff seeks to recover.   In her declaration, Molly Ayala attests to damages in the amount of $313,641.  See Dec. of M. Ayala, ¶14.  Ayala does not specify how she arrived at this damages figure, only stating that the monthly damages increased to $39,627 beginning on 5-1-22.  Plaintiff is not seeking judgment for possession only.  Plaintiff is seeking judgment for possession, rent and holdover damages.  Plaintiff fails to satisfy its burden on the element of damages.

            In addition, Defendant objects to the proofs of service (POS) of the 3-day notice as lacking in foundation.  Defendant’s objection is sustained.  The process server’s POS declarations only attest to posting copies of a 3-day notice to pay or quit.  The declarations do not attach the 3-day notice to pay rent or quit that was supposedly posted and mailed, nor do they reference any identifying feature of the 3-day notice.  See Dec. of C. Weinberg, Ex. F.  Weinberg lacks personal knowledge to testify to whether the 3-day notice attached to her declaration was the 3-day notice served by the process server. 

            Moreover, Defendant submits competent evidence the three-day notice was not served. See, Declarations of Jerome Chang. para. 11 and Nabila Tamariyani.  Therefore, even assuming the POS declaration met the requirements to satisfy the statutory presumption of proper service under Evidence Code §647, that presumption has been rebutted and has no effect. See, Farr v. County of Nevada (2010) 187 Cal.App.4th 669, 680–681 (“[I]f a presumption affecting the burden of producing evidence ‘applies to a proposition, the proponent of the proposition need not prove it unless the opposing party produces evidence undermining it, in which case the presumption is disregarded and the trier of fact must decide the question without regard to it.’”)  Defendant therefore raises a triable issue of material fact regarding service of the required 3-day Notice to Pay Rent or quit. 

            Defendant argues there is an issue of fact regarding the holdover damages requested by Plaintiff.  The basis for the calculation of Plaintiff’s holdover damages is unclear.  As noted by Defendant in fn 4 of the Opposition, Plaintiff’s claim for holdover damages is likely based on the automatic rent increase under the lease beginning on May 1, 2021.  As Defendant notes, the automatic rent increase under the Lease does not explain the holdover damages from January 1, 2021 to May 31, 2021.  Defendant also submits the declaration of Jerome Chang, its principal, that the holdover rental rate is less than $1,283.40 per day.  See Opposition, Dec. of J. Change, ¶¶12-16.  Defendant argues the holdover rental rate is $566.66 per day based in part to the constantly recurring roof leaks and malfunctioning HVAC system and the state of the rental market after COVID.  Id.  Defendant therefore raises an issue of fact regarding the amount of holdover damages owed to Plaintiff.