Judge: John J. Kralik, Case: 22BBCV01212, Date: 2023-10-20 Tentative Ruling

Case Number: 22BBCV01212    Hearing Date: October 20, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Rediger Investment Corporation (“Plaintiff”) filed an unlawful detainer complaint against Defendant Vickie Stark, MD (“Defendant”).  The property at issue is located at 500 E. Olive Ave., #101 and 103, Burbank, CA 91501.  Plaintiff is alleged to be the owner of the property.

On December 1, 2001, Defendant entered into a written, fixed term lease with Plaintiff for the property.  Plaintiff alleges that on December 12, 2022, Defendant was served with a 3-day notice to pay rent or quit.  Plaintiff seeks possession of the premises, costs incurred in the proceeding, past due rent of $75,117, reasonable attorney’s fees, forfeiture of the agreement, and damages at the rate of $246.30 per day from January 1, 2023. 

B.     Motion on Calendar

On October 4, 2023, Plaintiff filed a motion for summary judgment in its favor against Defendant for forfeiture of the commercial lease and possession of the subject premises. 

The Court is not in receipt of an opposition brief.

DISCUSSION

CCP § 1161 defines “unlawful detainer” in relevant part as follows:

2. When the tenant continues in possession, in person or by subtenant, without the permission of the landlord, or the successor in estate of the landlord, if applicable, after default in the payment of rent, pursuant to 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 its payment, stating the amount that is due, the name, telephone number, and address of the person to whom the rent payment shall be made, and, if payment may be made personally, the usual days and hours that person will be available to receive the payment (provided that, if the address does not allow for personal delivery, then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed received by the owner on the date posted, if the tenant can show proof of mailing to the name and address provided by the owner), or the number of an account in a financial institution into which the rental payment may be made, and the name and street address of the institution (provided that the institution is located within five miles of the rental property), or if an electronic funds transfer procedure has been previously established, that payment may be made pursuant to that procedure, or possession of the property, shall have been served upon the tenant and if there is a subtenant in actual occupation of the premises, also upon the subtenant.

(CCP § 1161(2).)  More simply: “The standard elements of an unlawful detainer action for nonpayment of rent are (1) the tenant is in possession of the premises, (2) the tenant is in default for nonpayment of rent, (3) the tenant has been properly served with written notice to pay rent or quit of no less than three days, and (4) the tenant's default continues after the three-day notice period has elapsed.”  (Frazier v. Superior Court of Los Angeles County (2022) 86 Cal.App.5th Supp. 1.)

Plaintiff moves for summary judgment in its favor against Defendant.

In support of its motion, Plaintiff provides the declaration of Duane Rediger, the president of Plaintiff.  (Rediger Decl., ¶1.)  Mr. Rediger states that Plaintiff is the lessor to Defendant as lessee under a commercial AIR Standard Office Lease – Gross (“Lease”) for the subject premises.  (Id., ¶3, Ex. 1 [Lease].)  The Lease was amended once and assigned before Defendant became the current lessee, by way of the Lease Amendment dated September 28, 2020 (“Stark Amendment”).  (Id., ¶4.)  He states that although the Stark Amendment refers to Unit 103, the premises have always consisted of both Units 101 and 103, such that Defendant (and her predecessors) have used the units for their business of providing magnetic resonance imaging, CT scanning, and related services.  (Id.)  Mr. Rediger states that the Stark Amendment requires Defendant to pay rent of $6,956 a month starting November 2020 with 3% annual increases on December 1 of each year through the end of the Lease on November 30, 2024.  (Id., ¶5.)  In addition, Defendant’s machinery required significant electrical output, which she was required to pay, such that a submeter was installed in the building to measure electrical usage by a magnetic resonance imaging machine in accordance with the Lease § 11.2.  (Id.)  The utility company billed Plaintiff, who in turn charged Defendant.  (Id.)  Mr. Rediger also states that section 2.2 included a parking charge and section 21 stated that all monetary obligations of lessee to lessor would be deemed rent.  (Id.) 

Mr. Rediger states that Plaintiff keeps track of amounts owed and paid under the Lease through the Yardi program.  (Rediger Decl., ¶6, Ex. 2 [Tenant Ledger].)  According to the Ledger, by the end of the first year to November 1, 2021, Defendant had an overdue balance of $31,041 and the outstanding balance increased to $75,117 by December 2022.  (Id., ¶7.)  He states that he caused Defendant to be served with a Notice to Pay Rent or Quit.  (Id., ¶7, Ex. 3 [Notice].)  He states that Defendant thereafter filed a Chapter 13 Bankruptcy in Nevada, which delayed the UD action while Defendant remained in possession of the premises without pay rent and other charges.  (Id., ¶8.)  The bankruptcy case was converted to a Chapter 7 and Plaintiff obtained relief from stay to proceed with this action.  (Id.)[1]

Plaintiff also provides the declarations of Miguel Balbuena and Kristin Monahan.  Mr. Balbuna, a registered process server, states that on December 7, 2022, he served the Notice at the subject premises and mailed the documents thereafter.  (Balbuena decl., ¶¶2-5.)  Ms. Monahan, legal assistant to Plaintiff’s counsel, states that she mailed a copy of the Notice on Defendant at the subject premises on December 6, 2022 and has proof that the Notice was delivered.  (Monahan Decl., ¶¶2-3, Ex. 6 [Envelope with Certified Mail Receipt]; Ex. 7 [USPS tracking showing that the mail was delivered].) 

Here, Plaintiff has established its burden establishing that Defendant failed to make rental payments (and other payment of costs) as agreed in the Lease and Stark Amendment and failed to cure the default after receipt of the Notice.  Plaintiff has established the elements of an unlawful detainer claim for the real property at issue. 

As such, the burden shifts to Defendant to raise a triable issue of material fact.  Pursuant to CRC Rule 3.1351, Defendant may present an oral opposition at the time of the hearing or file a written opposition one day before the hearing.  At this time, the Court is not in receipt of a written opposition brief, such that Defendant has not raised triable issues of material fact.  Accordingly, the motion for summary judgment is granted.  If a written opposition is filed the day before the hearing or oral opposition arguments are made at the time the hearing, the Court will consider Defendant’s arguments at that time.

CONCLUSION AND ORDER  

            Plaintiff Rediger Investment Corporation’s motion for summary judgment is granted.  Plaintiff is ordered to lodge with the Court and serve on Defendant a proposed judgment within ten (10) days and to provide notice of this order.

            Plaintiff shall provide notice of this order.

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