Judge: H. Jay Ford, III, Case: 22SMCV02890, Date: 2023-04-13 Tentative Ruling

Case Number: 22SMCV02890    Hearing Date: April 13, 2023    Dept: O

Case Name:  GMB Ventures, LLC v. MKC Food Future LLC, et al.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Plaintiff GMB Ventures, LLC

RESP. PARTY:         Defendants MKC Food Future, LLC, New Food Management, Inc. and MK Cuisine Global, LLC

TENTATIVE RULING

            Plaintiff’s Motion for Summary Judgment is GRANTED.  Plaintiff is to submit the proposed judgment.

            An essential element of an unlawful detainer claim based on nonpayment of rent is service of a 3-day notice to pay rent or quit.  See CCP §1161(2).  Plaintiff submits evidence that it served a 3-day notice to pay rent or quit by substituted service on Alex Mojado, manager of “Restaurant.”  See Motion, Dec. of G. Mitchell, ¶8, Ex. C.  Plaintiff also submits evidence that Defendant did not pay the unpaid rent identified in the notice, nor did they quit the premises.  Id. at ¶9.  Plaintiff submits admissible evidence supporting damages in the amount of $41,360.23 for one month of unpaid rent and holdover damages of $1,378.67 per day from 12-13-22.  Id. at ¶¶7, 10 and Exs. A-C. 

Plaintiff establishes the essential elements of unlawful detainer.  The burden therefore shifts to Defendants to raise a triable issue of fact as to one of these elements or an affirmative defense.

Defendants fail to submit admissible evidence raising a triable issue of fact.  Defendants submit the declaration of Matthew Kenney, Defendants’ CEO.  Kenney’s declaration fails to negate proper service of the 3-day Notice to Quit.  Plaintiff served Alex Mojado and there is no testimony from Mojado regarding the 3-Day Notice to Quit.  See RJN, Ex. 1, Dec. of M. Kenney ISO of Defendants’ Ex Parte Application to Vacate Default Judgment, ¶6.  Kenney’s testimony that he did not receive the Notice is admissible, but his testimony that none of Defendants’ other officers, employees or personnel is inadmissible as hearsay and because it lacks foundation.  Id. at ¶6. 

Defendants admit that they received copies of the complaint and notice on or after 12-15-22, but claim the attached copy of the complaint is illegible.  Regardless of the formatting errors on pages 3-4 of the apparent service copy of the complaint, it is sufficiently legible to put the defendant on notice of this action.  The original complaint filed with the court is fully legible and does fully allege a claim for unlawful detainer. Defendants fail to cite any authority that receipt of a partially legible service copy of the complaint is a defense to the substantive UD claim.  Defendants answered the complaint without first moving to quash, waiving any defects in service of the complaint and summons.  See 3-14-23 Amended Answer.  Filing of an answer without first filing a motion to quash is a general appearance that waives any objection based on personal jurisdiction.  See Fireman's Fund Ins. Co. v. Sparks Const., Inc. (2004) 114 Cal.App.4th 1135, 1145 (by making general appearance, defendant forfeits any objection to defective service even if unaware such objection was available).

            Defendants also fail to establish the existence of an affirmative defense to the UD claim.  Plaintiff was not required to negate Defendants’ affirmative defenses to satisfy its burden on summary judgment.  Based on the undisputed evidence, Plaintiff is entitled to summary judgment of the unlawful detainer complaint.  Plaintiff’s Motion for Summary Judgment is GRANTED.