Judge Helen Zukin, Case 22SMCV00569 2022-10-21 Tentative Ruling

Judge: Helen Zukin, Case: 22SMCV00569, Date: 2022-10-21 Tentative Ruling

Case Number: 22SMCV00569 Hearing Date: October 21, 2022 Dept: 207

Background

This is an unlawful detainer action brought by Plaintiff Sunset Equity Partners, LLC (“Plaintiff”) against Defendant Filemon Garcia (“Defendant”) concerning the commercial property located at 1323 Venice Boulevard, Los Angeles, California. When Defendant did not make an appearance in this action, default was entered against him on May 10, 2022, followed by the entry of a default judgment against him on May 19, 2022. On July 25, 2022, the Court granted Defendant’s motion to set aside the entry of default and default judgment.

Plaintiff now moves for summary judgment or, in the alternative, summary adjudication. A party may oppose a motion for summary judgment filed in an unlawful detainer action orally at the hearing or with a written opposition filed and served before or at the hearing. (Cal. Rules of Court, rule 3.1351(b)-(c).) “If a party seeks to have a written opposition considered in advance of the hearing, the written opposition must be filed and served on or before the court day before the hearing.” (Id., rule 3.1351(c).) At the time this tentative ruling was prepared by the Court, Defendant had not filed a written opposition to Plaintiff’s motion.

Summary Judgment Standard

Code Civ. Proc. § 1170.7 provides “A motion for summary judgment may be made at any time after the answer is filed upon giving five days’ notice. Summary judgment shall be granted or denied on the same basis as a motion under Section 437c.” “Any opposition to the motion and any reply to an opposition may be made orally at the time of hearing or in writing as set forth in (c).”¿ (CRC 3.1351(b).)¿ “If a party seeks to have a written opposition considered in advance of the hearing, the written opposition must be filed and served on or before the court day before the hearing. Service must be by personal delivery, facsimile transmission, express mail, or other means consistent with Code of Civil Procedure sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties no later than the close of business on the court day before the hearing. The court, in its discretion, may consider written opposition filed later.”¿ (CRC 3.1351(c).)

A motion for summary judgment shall be granted if all the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (C.C.P. § 437c(c).) The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code Civ. Proc. § 437c(c) “requires the trial judge to grant summary judgment if 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

On a plaintiff’s motion for summary judgment, the plaintiff bears the burden of persuasion that each element of the cause of action in question has been proved, and that there is no defense thereto. (Code Civ. Proc., § 437c, subd. (o)(1); Aguilar v. Atlantic Richfield Company, et al. (2001) 25 Cal. 4th 826, 850.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto . . . . A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

When moving for summary judgment or adjudication on a defendant’s affirmative defenses, “A plaintiff or cross-complainant 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. The defendant or cross-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).)

Analysis

Plaintiff brings this motion seeking summary judgment on its Complaint against Defendant. Plaintiff’s Complaint asserts one cause of action against Defendant for unlawful detainer. Plaintiff alternatively moves “for an order granting adjudication in favor of Plaintiff and against Defendant FILEMON GARCIA, as to each and every cause of action and defenses for which Defendant FILEMON GARCIA has failed to establish that there are any triable issues of material fact.” (Motion at 2.) The Court notes Plaintiff’s alternative request for summary adjudication does not comply with California Rules of Court, rule 3.1350. Under rule 3.1350(b), “the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” Plaintiff here has not identified any specific causes of action or affirmative defenses it is moving for summary adjudication on beyond the one cause of action for unlawful detainer which is the subject of the motion for summary judgment. The separate statement Plaintiff filed with its motion similarly runs afoul of rule 3.1350(d), which requires Plaintiff to specifically identify “Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion” in the separate statement itself. This is not merely a technical violation, as Plaintiff’s motion offers no evidence or argument as to any affirmative defense raised in Defendant’s answer and as a result the Court cannot determine which defenses Plaintiff is seeking summary adjudication of. Accordingly, the Court DENIES Plaintiff’s alternative request for summary adjudication and will turn to the merits of Plaintiff’s motion for summary judgment.

The basic elements of unlawful detainer based upon expiration of a fixed term tenancy are: (i) plaintiff owns the property; (ii) plaintiff leased the property to defendant until the lease expiration date; (iii) plaintiff did not give defendant permission to continue occupying the property after the lease agreement ended; and (iv) defendant is still occupying the property. (Camp v. Matich (1948) 87 Cal.App.2d 660, 665-666; Ryland v. Appelbaum (1924) 70 Cal.App. 268, 270; CACI 4301.)

The Court finds Plaintiff has carried its initial burden as to each of these elements, as follows:

Plaintiff purchased the subject property on or about April 13, 2021. (UMF No. 1.) At the time of the purchase, Defendant was leasing the property from a prior owner. (UMF No. 4.) “After a property is sold or transferred, the transferee takes subject to the existing lease; this new owner steps into the landlord’s shoes and becomes the successor landlord, assuming the terms and conditions of the lease the tenant had with the prior owner… The same is true when the property is sold through foreclosure….” (DLI Properties, LLC v. Hill (2018) 29 Cal.App.5th Supp. 1, 8.) Thus, Plaintiff assumed the terms and conditions of Defendant’s lease.

The lease in question was for a fixed term, and by its own terms “commence[d] on January 1st 2017 and expire[d] at Midnight on January 1st 2022.” (Ex. B to Donel Decl.) The lease contained a renewal option which Defendant did not utilize, and thus the lease expired at midnight on January 1, 2022. (Donel Decl. at ¶¶ 13-14.) Defendant remains in possession of the property. (UMF Nos. 5, 9.)

Under the terms of the lease, rent for the property was set at $6,800 per month. (Ex. B to Donel Decl.) Defendant did not pay rent to Plaintiff after the expiration of the lease. (UMF Nos. 8, 10.) Plaintiff alleges it was damaged by Defendant’s continued possession of the subject property in the amount of $57,346.58, calculated at $6,800 for the months February 2022 through September 2022, plus $2,946.58 as the pro-rated share of rent through the October 13 hearing on Plaintiff’s motion. (Motion at 6; UMF No. 12.) The Court finds Plaintiff has carried its initial burden in establishing its damages, except that Court disagrees with Plaintiff’s calculation of rent at $226.66 per day. The daily rent is properly calculated at $223.56 ($6,800 x 12 months = $81,600; $81,600/365 days = $223.56 per day).

The Court thus finds Plaintiff has carried its initial burden in showing it is entitled to summary judgment on its cause of action for unlawful detainer. The burden thus shifts to Defendant to show a triable issue of material fact exists as to Plaintiff’s claim for unlawful detainer.

Defendant’s opposition devotes the majority of his opposition arguing a material fact exists concerning the service of a 3-day Notice to Quit or 90-day Notice to Quit on Defendant. However, where, as here, an action is brought under Code Civ. Proc. § 1161(1) for the expiration of a fixed term lease, no written notice to quit or pay rent is required to be served on the defendant as a prerequisite to initiating unlawful detainer proceedings. (C.C.P. § 1161(1); Castle Park No. 5 v. Katherine (1979) 91 Cal.App.3d Supp. 6, 10, fn.4; Buck v. Morrossis (1952) 114 Cal.App.2d 461, 466; Ware v. Stafford (1957) 148 Cal.App.2d 840, 844; Moon v. Marker (1938) 26 Cal.App.2d 33, 37 Earl Orchard Co. v. Fava (1902) 138 Cal. 76; Lee Chuck v. Quan Wo Chong & Co. (1891), 91 Cal. 593.)

Defendant claims “Plaintiff captions this action as ‘Complaint for Unlawful Detainer After Foreclosure’….” (Opp. at 6.) Not so. Plaintiff’s Complaint is captioned as “Complaint for Unlawful Detainer of Commercial Property – Expiration of Term Unlimited Civil Case.” (Complaint at p. 1.) Indeed, the caption of the Complaint expressly states it is an “Action based on, inter alia, Expiration of Fixed Term California Civil Code §§ 793 and 1933; Commercial Property.” (Id [emphasis in original].) Defendant also cites to paragraph 2 of the Complaint, arguing Plaintiff “clearly alleges that it is ‘an action for Unlawful Detainer after Foreclosure’ in the body of the Complaint.” (Opp. at 6.) This quotation of paragraph 2 is incomplete, as it states the action “is also based up[on] California Civil Code §1933, the expiration of a fixed term.” (Complaint at ¶ 2 [emphasis in original].)

Defendant does not dispute the subject lease is a fixed term lease which has expired, nor does Defendant argue notice is required to initiate an unlawful detainer action based on the expiration of a fixed term lease. Accordingly, the Court does not find any triable issue of material fact exists regarding the question of service of a 3-day or 90-day notice on Defendant.

Defendant also argues this action is barred by eviction moratoriums enacted by the County and City of Los Angeles. However, Defendant himself acknowledges these protections for commercial tenants expired on January 31, 2022. (Opp. at 8 [“the Los Angeles County Board of Supervisors, extended the Los Angeles County eviction moratorium for commercial tenants through January 31, 2022”]; Opp. at 9 [“The Ordinance adopted by the City of Los Angeles as a result of the COVID-19 pandemic, is also currently in effect through January 31, 2022”].) Plaintiff filed this action on April 22, 2022, after the expiration of the city and county moratoria, and Plaintiff is only seeking unpaid rent for the months February 2022 to October 2022, following the expiration of the lease term on January 1, 2022. Defendant has thus not demonstrated how this action could be barred by the moratoria which expired on January 31, 2022.

Defendant points out Plaintiff’s motion fails to comply with the California Rules of Court regarding the formatting of Defendant’s separate statement. Specifically, Defendant argues under rule 3.1350(d)(3), Plaintiff was required to state its undisputed facts and supporting evidence in a single column, whereas the separate statement filed by Plaintiff sets out the disputed facts in one column and the supporting evidence in a separate column. The Court agrees Plaintiff’s separate statement is not in compliance with rule 3.1350(d)(3). Defendant states “Plaintiff’s motion must be denied” because of this deficiency in the separate statement. (Opp. at 8.) Defendant cites to no authority which compels such denial of a motion for summary judgment where the separate statement has not been formatted in accordance with rule 3.1350. Rather, “A court has discretion to deny the motion for failure to comply with the separate statement requirement.” (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 523.)

The Court in its discretion does not find Plaintiff’s failure to include its undisputed facts and supporting evidence in a single column merits the denial of Plaintiff’s motion. The Court found above Plaintiff’s failure to follow rule 3.1350 merited the denial of Plaintiff’s motion for summary adjudication because in that respect Plaintiff’s failure was more than a technical violation as it prevented the Court from determining which defenses Plaintiff is seeking summary adjudication of. By contrast the Court here finds Plaintiff’s use of a second column to set forth its supporting evidence is a mere technical violation. The only prejudice claimed by Defendant as a result of this formatting error is the inability to prepare its own separate statement in compliance with the California Rules of Court. Defendant instead set forth his response to Plaintiff’s separate statement at pages 3-4 of his opposition, which have been considered by the Court in ruling on this motion as if it was presented in a proper formatting pursuant to rule 3.1350. The Court also notes rule 3.1350(i) provides opposing parties with a procedure to obtain electronic, editable versions of a separate statement from the moving party, which minimizes any claimed prejudice by Defendant. Accordingly, the Court in its discretion declines to deny Plaintiff’s motion for summary judgment based on Plaintiff’s use of a second column in its separate statement.

For the reasons set forth above, the Court finds Defendant has failed to carry the burden shifted to it by Plaintiff to demonstrate the existence of a trial issue of material fact as to Plaintiff’s claim for unlawful detainer. Accordingly, the Court GRANTS Plaintiff’s motion for summary judgment.

Conclusion

Plaintiff’s motion for summary judgment is GRANTED.