Judge: Lee W. Tsao, Case: 23NWCV00552, Date: 2023-09-12 Tentative Ruling

Case Number: 23NWCV00552    Hearing Date: September 12, 2023    Dept: C

ASSOCIATED AMERICANA PROPERTIES v. CHUNG

CASE NO.:  23NWCV00552

HEARING: 9/12/23

 

#7

TENTATIVE RULING

 

Plaintiff Associated Americana Properties, LLC’s motion for summary adjudication is DENIED as to the 7th and 8th Affirmative Defenses.  The court is inclined to grant summary adjudication of the 1st – 6th Affirmative Defenses, but the court will hear from defendant.

 

Moving Party to give NOTICE.

 

 

Plaintiff Associated Americana Properties, LLC (“Associated”) moves for summary judgment, or alternatively, summary adjudication as to Defendant’s Affirmative Defenses 1 through 8. 

 

As a preliminary matter, the court notes that Plaintiff’s motion incorrectly lists the order of Defendant’s affirmative defenses.  The court will discuss Defendant’s affirmative defenses in the order listed in the Answer.

 

As in ordinary civil cases, either party to an unlawful detainer action may file a motion for summary judgment when the complaint or answer as a whole has no merit as a matter of law.  (CCP §§ 437c(a), 1170.7.) The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Thus, a plaintiff moving for summary judgment bears the burden of persuasion that each element of the cause of action in question has been “proved,” and hence that there is no defense thereto. (Ibid.) Conversely, the party opposing the motion bears the burden of setting forth specific facts showing a triable issue of material fact as to plaintiff's claim or a defense thereto. (Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 1076, 1092.)

 

Unlawful detainer is a summary procedure designed principally to enable the landlord to gain speedy possession of the property. (Northrop Corp. v. Chaparral Energy, Inc. (1985) 168 Cal.App.3d 725, 729–730.)  “A tenant of real property… is guilty of unlawful detainer [w]hen the tenant continues in possession, in person or by subtenant, of the property, or any part thereof, after the expiration of the term for which it is let to the tenant; provided the expiration is of a nondefault nature however brought about without the permission of the landlord, or the successor in estate of the landlord, if applicable; including the case where the person to be removed became the occupant of the premises as a servant, employee, agent, or licensee and the relation of master and servant, or employer and employee, or principal and agent, or licensor and licensee, has been lawfully terminated or the time fixed for occupancy by the agreement between the parties has expired; but nothing in this subdivision shall be construed as preventing the removal of the occupant in any other lawful manner; but in case of a tenancy at will, it shall first be terminated by notice, as prescribed in the Civil Code.”   (CCP § 1161(1).)

 

The present action involves a commercial unlawful detainer filed by Plaintiff Associated Americana Properties, LLC against Defendant Kevin Chung, individually and doing business as Colorsmith Graphics (Tenant) for a commercial lease. 

 

Plaintiff contends that there are no triable issues as to the 1st – 7th affirmative defenses.   Plaintiff seeks possession, forfeiture of the lease, rent due from October 1, 2022 – January 31, 2023 in the sum of $24,202.19, per diem damages at the rate of $186.17 from February 1, 2023 through the date of judgment, costs in the sum of $1,416.25, and attorney’s fees.

 

Plaintiff submits the following evidence:

 

·        Plaintiff is the successor in interest to Commerce Center Santa Fe Springs, LLC (“Commerce Center”).  On or about October 4, 2001, Commerce Center and Defendant entered into a lease ("Lease") whereby Commerce Center leased to Defendant and Defendant leased from Commerce Center, the Premises.  (Benesch Decl., Ex. A.)

·        The lease was amended multiple times, the last of which occurred on February 27, 2018, extending the term of the lease through February 29, 2020.  The base rent was $3,259.50 for March 1, 2018 through February 28, 2019, and the base rent was $3,378.75 for March 1, 2019 through February 29, 2020.

·        After the expiration of the lease term of February 29, 2020, no additional amendments were executed between Plaintiff and Defendant. As such, Defendant became a holdover tenant pursuant to the terms of paragraph 26 of the Lease whereby base rent increased to 150% of the base rent immediately payable during the last month of the term or extended term. As such, Plaintiff was entitled to increase the base rent from $3,378.75 to $5,068.13 a month effective March 1, 2020.

·        Commencing October 1, 2022 and continuing thereafter, Defendant failed to pay to Plaintiff the monthly rent in the sum of $24,202.19 all of which is designated as "rent" under the terms of the Lease.

·        On or about January 5, 2023, Plaintiff caused a written "Three Business (3) Day Notice to Pay Estimated Rent or Quit" (hereinafter referred to as the "Notice") to be served upon Defendants and each of them.  (Benesch Decl., Ex. L.)

·        The Notice stated that a default in the rental payments due in the sum of $24,202.19 for the time period of October 1, 2022 through and including January 31, 2023.

·        Defendant did not pay to Plaintiff all of the sums required by and within the time permitted by the Notice.  Defendant also failed to quit the Premises within the permissible time limits after service of the Notice upon them. Defendant is still in possession of the Premises.

 

1st and 2nd Affirmative Defenses

 

Defendant contends that he never skipped rents during the lease, nor during the COVID 19 Pandemic Lockdown order; and the "lockdown order" made it impossible for Defendant to pay the rent due for the lease of the subject premises.

 

Plaintiff contends that the rent that is the basis for this action is for the time period of October 1, 2022 through and including January 31, 2023, which was not a period under lockdown.  (Benesch Decl., ¶ 43.)

 

Defendant contends that he “never had skipped rents during (More than 22 years), nor had him paid untimely even during Covid 19 Pandemic Lockdown order.”  (Opposition, 6:10-14.)  This contention, however, is not supported by any declaration under oath.  Since this matter is a UD action, the court will accept Plaintiff’s testimony at the hearing.

 

3rd Affirmative Defense

 

Defendant contends that Plaintiff suddenly and dramatically increased rents to $5,277.00 from August 1, 2022 which "had nonetheless been timely paid."

 

According to Plaintiff, there was a base increase to $3,259.50 and $3,378.75, pursuant to the Tenth Amendment.  (Benesch Decl., Ex. K.)  Due to Defendant being in holdover status, pursuant to paragraph 26 of the Lease, base rent increased effective March 1, 2021 to $5,068.13 (150% of $3,378.75). (Benesch Decl., ¶ 45 and Ex. K.)

 

Defendant contends that he “accepted it and timely paid $5,217.00.”  (Opposition, 7:6-9.)  However, even if Defendant timely paid the August 1, 2022, rent, the unpaid rent that is the subject of this action is from October 1, 2022 – January 31, 2023.

 

The court is therefore inclined to grant summary adjudication.  However, since this matter is a UD action, the court will accept Plaintiff’s testimony at the hearing. 

 

4th Affirmative Defense

 

Defendant contends that the Increased Rent of $5,217.00 Is Illegal under Tenancy Law.

 

According to Plaintiff, due to Defendant being in holdover status, pursuant to paragraph 26 of the Lease, base rent increased effective March 1, 2021 to $5,068.13 (150% of $3,378.75). (Benesch Decl., ¶ 45 and Ex. K.) 

 

Defendant fails to cite any legal authority for why the increased rent is illegal when the contract allows for increased rent based on Defendant’s holdover status.

 

The court is therefore inclined to grant summary adjudication.  However, since this matter is a UD action, the court will accept Plaintiff’s testimony at the hearing. 

 

5th Affirmative Defense

 

Defendant contends that Plaintiff groundlessly and additionally demanded $7,792.00 without explanation.

 

Plaintiff presents evidence that there was a payment made by the Defendant of $7,792.00 for which credit was given to Defendant on August 6, 2022 against the balance then due. (Benesch Decl., Ex. M.) 

 

Defendant does not present any evidence of the demand for $7,792.00.  Additionally, Defendant contends that “he had not [sic] any option but to pay.  (Exhibit I.)”  (Opposition, 7:25.) 

 

The court is therefore inclined to grant summary adjudication.  However, since this matter is a UD action, the court will accept Plaintiff’s testimony at the hearing. 

 

6th Affirmative Defense

 

Defendant contends that “continuously thereafter" the Plaintiff demanded "regular rent of $7,219.00 ($2000.00 more to $5,219.00)

 

Defendant contends that “As soon as additional amount of $7,792.00 was paid, the landlord unilaterally and unconscionably notified new rent amount of $7,219.00, which is increased from $5,219.00 to $7,219.00 ($2,000.00 more). In this situation, the defendant (tenant) demanded discount (i.e., $1,000.00 less) to $6,217.00. The landlord accepted it and deposited $6,217.00 as new rent. (i.e., Implied Contract by Conduct) (EXHIBIT I – Proof of Rents Paid, 9-2-22).” 

 

Whether and how much rent was paid in September 2022 is not at issue in this case.  The rent that is the subject of this action is from October 1, 2022 – January 31, 2023.  The court is therefore inclined to grant summary adjudication.  However, since this matter is a UD action, the court will accept Plaintiff’s testimony at the hearing. 

 

7th Affirmative Defense

 

Defendant’s 7th Affirmative Defense is, “After deposit of new rent $6,217.00, the landlord launched Civil Action praying for the damage groundlessly $108,562.48.” 

 

Although Plaintiff’s motion refers to a seventh affirmative defense, it incorrectly addresses the substance of the 6th Affirmative Defense.  Defendant does not address the substance of the 7th Affirmative Defense.  As such, summary adjudication of the 7th Affirmative Defense is DENIED.

 

8th Affirmative Defense

 

Defendant contends Plaintiff Is Precluded from Proceeding With this Unlawful Detainer Action to Recover Possession Due to the Filing of a Breach of Contract Action Against Defendant.

 

According to Defendant, Plaintiff has filed a duplicative case (Case No. 22NWCV00841) raising the same issue against the same party. 

 

However, Plaintiff explains that this action is for possession, while Case No. 22NWCV00841 is not.  (Benesch Decl., ¶ 42.) 

 

The court finds that triable issues exist.  Although Plaintiff contends that it is seeking possession only, its motion specifically seeks rent due, per diem damages, costs, and attorney’s fees.  Summary adjudication of the 8th Affirmative Defense is DENIED.