Judge: H. Jay Ford, III, Case: 22SMCV01722, Date: 2023-06-22 Tentative Ruling

Case Number: 22SMCV01722    Hearing Date: August 31, 2023    Dept: O

Case Name:  5916 S. Village Dr LLC v. Flying Tigers, Inc.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT  

MOVING PARTY:   Plaintiff 5916 S. Village Dr LLC

RESP. PARTY:         Defendant Flying Tigers, Inc.

TENTATIVE RULING

            Plaintiff 5916 S. Village Dr LLC’s Motion for Summary Judgment is GRANTED. Plaintiff is to submit the proposed order and judgment for possession only.  

            “A plaintiff ...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. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP §437c(p)(1).  

            “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’ [Citation.]” (Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1463; see also Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1153–1154.) “A plaintiff moving for summary judgment establishes the absence of a defense to a cause of action by proving ‘each element of the cause of action entitling the party to judgment on that cause of action.’ [Citation.] The plaintiff need not, however, disprove any affirmative defenses alleged by the defendant. [Citation.] Once the plaintiff's burden is met, the burden of proof 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.’ [Citation.] In meeting this burden, the defendant must present ‘specific facts showing’ the existence of the triable issue of material fact.” (City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1081.)  “The court's assessment of whether the moving party has carried its burden—and therefore caused a shift—occurs before the court's evaluation of the opposing party's papers.  Therefore, the burden on the motion does not initially shift as a result of what is, or is not, contained in the opposing papers.” Mosley v. Pacific Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434–435 (landlord’s failure to address issue of whether they were aware of their tenant’s marijuana growing operation was not grounds to grant summary judgment where moving party failed to satisfy its initial burden as to the issue); Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 (court cannot grant summary judgment based merely on lack of opposition; court must first determine if the moving party has satisfied its burden).  

            “In general, the opposing party may not rely on the opposing party's own pleadings (even if verified) to oppose the motion. CCP § 437c(p); Roman v BRE Props., Inc. (2015) 237 CA4th 1040, 1054, 188 CR3d 537 (plaintiff must show “specific facts” to defeat defendant's summary judgment motion and may not rely on allegations of complaint). A plaintiff may rely on the plaintiff's pleadings to resist a summary judgment motion if the defendant's motion is based on the legal insufficiency of the plaintiff's claims as alleged. Hand v Farmers Ins. Exch. (1994) 23 CA4th 1847, 1853, 29 CR2d 258.” Cal. Judges Benchbook Civ. Proc. Before Trial § 13.24 (2023).

            I.  Plaintiff has met its burden to show it is entitled to a judgment for unlawful detainer under CCP §1161, subd (2) based on the Defendant’s failure to comply with a valid notice to pay rent or quit.

            In the complaint, Plaintiff’s claim for unlawful detainer is brought under CCP §1161, subdivisions 2 and 3, in that plaintiff alleges, Defendant defaulted in the payment of rent and has not complied with other covenants of the lease. There are no allegations in the complaint that even remotely suggest Plaintiff seeks recovery under the remaining provisions of section 1161.

            To establish its claim for unlawful detainer under CCP §1161 subd.(2) for non-payment of rent, Plaintiff must prove:

            1. That Plaintiff owns the property;

            2. That Plaintiff rented the property to Defendant;

            3. That under the lease agreement, Defendant was required to pay rent in the amount of $20,000 per month;

            4. That Plaintiff properly gave Defendant three days’ written notice to pay the rent or vacate the property;

            5. That as of the date of the three-day notice, at least the amount stated in the three-day notice was due;

            6. That Defendant did not pay the amount stated in the notice within three days after service of the notice; and

            7. That Defendant is still occupying the property.

[CCP §§ 1161 subd. (2), See Judicial Counsel Advisory Committee on Jury Instructions (CACI) Jury Instruction no. 4302]

            To prove Plaintiff gave Defendant the required proper notice to pay rent or quit, Plaintiff must prove:

            1. That the notice informed Defendant in writing that it must pay the amount due within three days or vacate the property;

            2. That the notice stated the amount due, and the name, telephone number, and address of the person to whom the amount should be paid, and the usual days and hours that the person would be available to receive the payment;

            3. That the notice was given to Defendant at least three days before the complaint was filed, namely 10-22-1923.

[CCP 1162, CACI, supra, Jury Instruction 4303.]

            “Due to the summary nature of such an action, a three-day notice is valid only if the landlord strictly complies with the provisions of section 1161, subdivision 2 (section 1161(2)). [Citation.]” (Levitz Furniture Co. v. Wingtip Communications (2001) 86 Cal.App.4th 1035, 1038, 103 Cal.Rptr.2d 656.) “Unlawful detainer is a highly specialized form of litigation. Highly summary in nature, the code requirements must be followed strictly, otherwise a landlord's remedy is an ordinary suit for breach of contract with all the delays that remedy normally involves and without restitution of the demised property.” (Cal–American Income Property Fund IV v. Ho (1984) 161 Cal.App.3d 583, 585, 207 Cal.Rptr. 532.)

The declaration of Plaintiff’s owner, Mohamed Shaaban, established:

            1. Plaintiff owns the property (Shaaban Decl, ¶. 4, Exs. 2, 4);

            2. That Plaintiff rented the property to Defendant (Id.);

            3. That under the lease agreement, Defendant was required to pay rent in the amount of $20,000 per month (Id.);

            4. That Plaintiff gave Defendant three days’ written “Notice to Cure” that demanded Defendant pay past due rent of $120,000 and thereafter served Defendant with a “Notice to Quit.” (Id. ¶¶ 4, 6, 15, exs. 11-12 (Notice to Cure re rent and proof of service), 13-14 (Notice to Quit and proof of service),

            5. That as of the date of the three-day notice, at least the amount stated in the three-day notice was due (id. ¶15);

            6. That Defendant did not pay the amount stated in the notice within three days after service of the notice (id. ¶16) ; and

            7. That Defendant is still occupying the property (id. 16, 17.)

            The only issue is whether the terms of the “Notice to Cure” and “Notice to Quit” served by Plaintiff satisfied the requirements of CCP §1161 subd. 2. Generally, a notice required under CCP 1161, subdivision 2 will demand that the tenant alternatively pay rent or to quit the premises within three days. (CCP 1161, subd. 2 (three-day notice for default in payment of rent “requiring its payment...or possession of the property.”); 12 Witkin, Summary of California Law, Real Property, §756 (2023); See, e.g. California Practice Guide, Landlord Tennant, ¶7-146, FORM 7:B.1 pg 7-269.)

            Here, Plaintiff “notice to cure” properly demanded Defendant pay rent within three days, and alternatively gave Defendant notice of Plaintiff’s intent to thereafter demand Defendant quit the premises:

“If you fail either to pay the amount of rent demanded in this notice Village will demand that you quit and vacate the Property within three days thereafter. Should you fail to quit and vacate the Property, Village will commence a legal proceeding to recover possession of the premises, recover the rent demanded herein, due for the periods covered by this notice, and recover damages for each day that you occupy the premises after the periods covered by this notice (plus statutory damages) and costs of suit.

“Further, if you fail to timely pay the amount demanded by this notice, the undersigned declares the forfeiture of the Lease under which you hold possession of the premises.” (Ex.11 also attached to complaint as ex 3.1.)  

After Defendant’s failed to pay rent, Plaintiff served the Defendant with the “Notice to Quit” which stated, in pertinent part:

“PLEASE TAKE NOTICE that having been previously served with three-day notices to cure on September 20, 2022 and having failed to cure breaches identified therein by September 26, 2022...including, failing to pay rent,... Pursuant to Civil Code section 1946.2(c), you are hereby requested to quit, and deliver to the undersigned the possession of the Property now held and occupied by you, being the Property located at the address stated above, at the expiration of three days, commencing on the September 27, 2022 and ending on September 30, 2022, or three days (excluding Saturdays, Sundays, and other judicial holidays) after service of this notice upon you, whichever date is later....”

            Prior to terminating a tenancy for failure to pay rent, a tenant must be given notice and opportunity to pay past due rent. The failure to do so renders a notice to quit under CCP §1161 subd (2) ineffective to support a judgment for unlawful detainer. Hinman v. Wagnon (1959) 172 Cal.App.2d 24 (holding that plaintiff failed to state an unlawful detainer cause of action where the notice to quit for failure to pay rent failed to give the tenant the alternative to pay rent.)  As the Court in Hinman explained:

“In order to sustain an action for unlawful detainer, section 1161 of the Code of Civil Procedure clearly requires that a notice first be given to the delinquent tenant, which notice shall prescribe specifically the amount of rent due or the covenant that has not been performed, and a further notice that in the event of the failure of the tenant to make payment of delinquent rent, or to perform the defaulted covenant, the plaintiff will exercise his right under the law to regain possession of the premises.” Hinman v. Wagnon (1959) 172 Cal.App.2d 24, 28. (Emphasis added.)

            Unlike Hinman, in this case the Notice to Cure demanded payment of rent within three days and further put the Defendant on notice that if they failed to pay the rent within three days, the Plaintiff would demand the Defendant quit the premises in a subsequent notice to quit. While unusual, this two-step notice process is consistent with the holding of Hinman and is expressly contemplated in actions arising from a tenant’s violation of curable covenants. See Civil Code 1946.2 (c) (“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.” (Emphasis added.)

            The Court finds the Notice to Cure met the requirements of CCP §1161, subd. 2 to put Defendant on notice of its opportunity to cure its default in payment of rent before its right to continued possession would be terminated and forfeited. In all respects, Plaintiff has met it burden to prove it is entitled to a judgment for possession of the property under CCP §1161, subd. 2.

            Given the Court’s findings regarding Plaitniff’s claim under CCP §1161 subd. (2), the Court need not address the sufficiency of Plaintiff’s claims under CCP §1161 subd. (3).

II  Defendant has failed to meet its burden to show a triable issue of material fact exists precluding a judgment for unlawful detainer in favor of Plaintiff.

            Defendant did not submit any evidence in opposition to Plaintiff’s motion. Defendant’s reliance on the denials in its answer is misplaced. Nor did Plaintiff submit a sufficient affidavit under CCP §437c sub. (h) seeking a continuance to obtain such evidence. Defendant’s counsels request it the opposition to continue the matter so he can get a declaration from his client is denied.