Judge: Kenneth J. Medel, Case: 37-2023-00005195-CU-OR-CTL, Date: 2024-01-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - January 03, 2024

01/05/2024  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Other Real Property Motion Hearing (Civil) 37-2023-00005195-CU-OR-CTL AGAMIRZOYAN VS ESCHBACH [IMAGED CAUSAL DOCUMENT/DATE FILED: Ex

Parte Application - Other and Supporting Documents, 10/25/2023 With Respect to the Order on Consolidation and Disposition of Rents, the Court intends to sign the order prepared by plaintiff. [ROA 79] First, the resolution of the payment of rent is not required for the Court to stay the UD action or consolidate the UD with the civil case. Rent would be damages that could recovered in the future.

Further, as discussed by plaintiff sellers, Defendant Eschach issued NOTICE OF TERMINATION OF TENANCY (C.A.R. Form TTT) ('Notice') Exhibit 8 on or about April 14, 2023 on the stated basis of: 'Your tenancy, if any, in the Premises is terminated 60 days from the service of this Notice, or on June 18, 2023 (whichever is later), for the following reason: Owner intends to withdraw the Premises from the rental market.' Notably, the Notice was not issued in the form of a 'Pay Rent or Quit' (C.A.R. form PRQ) or 'Notice to Cure or Perform Covenant or Quit' (C.A.R. form PCQ). In other words, at no point has Defendant Eschabach issued a demand that Plaintiff 'pay rent' and/or 'bring rents current.' In this sense, this issue is not even ripe.

However, the parties are willing to stipulate to a payment of rents and the equities of staying the UD case would include payment of rent. The question is how to structure the payment. Having submitted this question for the Court's determination, the Court finds that after examining at the agreements in place, in light of the history of this transaction, the parties agreed that rent would be paid through the release of the Earnest Money Deposit. This was the way it was set up at least for the first $14,000 payment. Paragraph 3.D of the Lease Agreement, Addendum No.1 of the Lease Agreement states that '3. ... In the event the outstanding items have not been completed in 90 days, the terms of the lease shall be extended on a month-to-month basis.' The question is whether the rent should continue to be paid through the EMD once the lease extends to month-to-month. The payment of rent through the EMD was the intent of the parties. Exhibit 3, Addendum No. 1.: (1) rent was to be paid via early release of Earnest Money Deposit; (2) the Earnest Money Deposit would be non-refundable; and (3) that any Earnest Money Deposit utilized for the payment of monthly rent would apply towards the Buyer's down payment on the purchase of the Subject Property. In other words, the rental payments were credits for the purchase price.

Paragraph 3.D. on 'Payment' states payment of rent is to be 'Other: Great Pacific Escrow through Earnest Money Deposit.' Here, there are multiple boxes to select – personal check, money order, cashier's check, wire transfer – however, the parties selected 'Other' and specified 'through Earnest Money Deposit.' In sum, the Lease Agreement signed in direct connection with the purchase of the Subject Property intended that in the event of an extended close of escrow, the Earnest Money Deposit held by Great Pacific Escrow would apply and offset the rent owed by the Plaintiff.

Calendar No.: Event ID:  TENTATIVE RULINGS

3045279