Judge Lisa K. Sepe-Wiesenfeld, Case Number: 24SMCV00625, Date: 2024-07-10 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 24SMCV00625, Date: 2024-07-10 Tentative Ruling

Plaintiff HOF REO 1 LLC (“Plaintiff”) requests judicial notice of the Deed of Trust recorded November 6, 2019, in the Los Angeles County Recorder’s Office as Document No. 20191198681; the Assignment of Deed of Trust recorded February 12, 2021, in the Los Angeles County Recorder’s Office as Document No. 20210247143; and the Trustee’s Deed Upon Sale recorded March 3, 2021, in the Los Angeles County Recorder’s Office as Document No. 20210348502. Plaintiff’s request is GRANTED pursuant to Evidence Code section 452, subdivision (c).

Plaintiff moves the Court for an order granting summary judgment or adjudication in its favor on the grounds that Defendants Eliyahu Marciano and Anthony Marciano (“Defendants”) have not paid any rent to Plaintiff since the time Plaintiff acquired and perfected its title to the property; the Tenant Protection Act of 2019 does not apply to this action or the tenancy because the more restrictive local ordinance applies instead, and Plaintiff has complied with all provisions of the local ordinance; and any contention that service of the complaint was defective is inapposite where Defendants appeared in the action and filed an answer.

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“Code of Civil Procedure section 437c, subdivision (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.) “[T]he court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection) . . . in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

In the complaint, Plaintiff alleges that it owns the premises at 1352 and 1354 Palms Boulevard in Venice, and Defendants entered into a written fixed-term lease with Palms Blvd. Venice Beach, LLC for the period of November 30, 2020 to May 31, 2022 with monthly rent at $4,500, payable on the seventh day of each calendar month. (Compl. ¶¶ 1-8.) Plaintiff acquired title and ownership of the property following a nonjudicial foreclosure sale, and title was perfected on March 3, 2021. (Compl. ¶¶ 10-11.) Defendants failed to pay any rent after Plaintiff acquired title to the property, and Defendants comply with the 3-Day Notice to Pay Rent or Quit, which expired on January 26, 2024, a 30-Day Notice to Pay Rent or Quit, a second 30-Day Notice to Pay Rent or Quit, or a 5-Day Notice to Pay Rent or Quit. Plaintiff seeks past-due rent of $162,000 under four notices, holdover damages, and forfeiture of the agreement. (Compl. ¶¶ 13-19.) “The basic elements of unlawful detainer for nonpayment of rent contained in Code of Civil Procedure section 1161, subdivision (2), are (1) the tenant is in possession of the premises; (2) that possession is without permission; (3) the tenant is in default for nonpayment of rent; (4) the tenant has been properly served with a written three-day notice; and (5) the default continues after the three-day notice period has elapsed.” (Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10, 16.)

Plaintiff provides evidence that it acquired title to the subject real property at 1352 and 1354 Palms Boulevard, Venice, California 90291 following a foreclosure sale that went forward on February 4, 2021, and Plaintiff perfected its title to the property by recording a Trustee’s Deed Upon Sale on March 21, 2021. (Mot., Holliday Decl. ¶¶ 4-5.) The property consists of a five-bedroom main residence with an additional guesthouse containing two additional bedrooms. (Mot., Holliday Decl. ¶ 3.)

Shortly after acquiring the property, on April 7, 2021, Defendants presented Plaintiff with a copy of a residential lease purportedly entered into by Defendants and the prior owner, Palms Blvd Venice Beach, LLC (“Palms, LLC”). (Mot., Holliday Decl. ¶ 6.) Plaintiff states it was unaware, prior to April 7, 2021, that any lease existed for any tenants or occupants of the property. (Mot., Holliday Decl. ¶ 7.) The lease reflects that, on November 30, 2020, Defendants entered into a residential lease for the property with Palms, LLC, providing that Defendants were to pay $4,500.00 per month, beginning on November 30, 2020, payable on the seventh day of each month, for a term expiring on May 31, 2022. (Mot., Holliday Decl. ¶ 8.) Plaintiff has not received any rent from Defendants since acquiring title to the property on or about February 4, 2021. (Mot., Holliday Decl. ¶ 9.)

On April 30, 2021, Plaintiff proceeded with a civil lawsuit against Defendants, Los Angeles Superior Court Case No. 21STCV16332 (HOF REO 1 LLC v. Marciano) to ascertain the validity of the lease, but Plaintiff ultimately dismissed the civil suit and concedes here that the lease is a bona fide lease between Defendants and the prior owner, Palms, LLC. (Mot., Holliday Decl. ¶ 10.) However, Plaintiff contends there was never any agreement between Plaintiff and Defendants directly to occupy the property, whether in writing, oral, or otherwise. (Mot., Holliday Decl. ¶ 11.)

Plaintiff served a total of four separate notices to pay rent to quit as follows: (1) On December 22, 2023, Plaintiff served a 30-Day Notice to Pay Rent or Quit for rent owing beginning March 7, 2021, through September 7, 2021, totaling $31,500.00. (Mot., Labarre Decl. ¶ 3, Ex. A.) (2) On December 22, 2023, Plaintiff served a 30-Day Notice to Pay Rent or Quit for rent owing beginning October 7, 2021, through January 7, 2023, totaling $76,500.00. (Mot., Labarre Decl. ¶ 4, Ex. B.) (3) On December 22, 2023, Plaintiff served a 5-Day Notice to Pay Rent or Quit for rent owing beginning February 7, 2023, through November 7, 2023, totaling $45,000.00. (Mot., Labarre Decl. ¶ 5, Ex. C.) (4) On January 23, 2024, Plaintiff served a 3-Day Notice to Pay Rent or Quit for rent owing beginning January 7, 2024, through February 7, 2024, totaling $9,000.00. (Mot., Labarre Decl. ¶ 6, Ex. D.) The time for Defendants to cure under each of the notices expired, and no payment was received, nor was there any attempt to make payment. (Mot., Holliday Decl. ¶ 12; Labarre Decl. ¶ 7.)

Plaintiff also provides evidence that it has complied with Los Angeles Municipal Code section 151.09, which applies in place of Civil Code section 1946.2 because the local ordinance is more protective (see Civ. Code, § 1946.2, subd. (g)(1)(B; Mot., Labarre Decl. ¶¶ 3-8, Exs. A-E), and Defendants answered the complaint on March 8, 2024, thereby waiving any argument that service of the complaint was incomplete (see Code Civ. Proc., § 1014 [“A defendant appears in an action when the defendant answers”].)

The lease agreement provided with the motion shows that Defendants entered into the lease with the prior owner, Palms, LLC, which Plaintiff does not dipsute. (Mot., Holliday Decl. ¶ 6; Ex. 5.) The lease agreement includes information on how to pay rent; specifically, lease payments must be made at the landlord’s address stated in the notices provision of the lease in paragraph 46. (Ibid.) Notably, Plaintiff provided no evidence with its initial motion that it informed Defendants of the name, telephone number, and address of the person or entity to whom rent payment must be made after Plaintiff became owner of the property, which is required under Civil Code section 1962, subdivision (c). The statute states that an owner shall not serve a notice to pay rent or quit or otherwise evict a tenant for nonpayment of rent that accrued during a period of noncompliance with Civil Code section 1962 (ibid.), and merely making contact with Defendants is insufficient to show compliance with the statute.

The Court continued the hearing on the motion, despite Defendants’ nonappearance at the hearing, and required Plaintiff to show compliance with the statute. In its supplemental filing, Plaintiff provides evidence that on November 22, 2023, it served a “Notice Regarding Residential Lease,” which provided Defendants with Plaintiff’s name, a copy of the Trustee’s Deed Upon Sale through which Plaintiff acquired title, provided contact information for Plaintiff’s agents, included information for service of process, provided the name and address for payments to be made, and included a copy of the lease agreement. (Labarre Supplemental Decl. ¶ 2, Ex. F.)

While compliance with Civil Code section 1962, subdivision (c), makes it such that Defendants may be liable for unpaid rent during the earlier noncompliance period, it is axiomatic that there is a one-year ceiling on a rent demand, i.e., a three-day notice can only demand rent accrued within one year prior to its service. (Code Civ. Proc., § 1161, subd. (2).) Plaintiff states that the first notice was served on December 22, 2023, seeking rent owing from March 7, 2021, through September 7, 2021, which clearly exceeds the one-year limit, and the second notice, served on the same day, sought rent owing from October 7, 2021, through January 7, 2023, also exceeding the one-year limit. While Code of Civil Procedure section 1179.05 tolled the one-year limitations period if the landlord was prohibited by COVID-19 related authority from demanding payment of rent, Plaintiff has not alleged any such tolling under this statute or any other statute. Thus, Plaintiff has not clearly established its claim for unlawful detainer as to the first two notices, and Plaintiff has moved only for summary judgment, not adjudication. Thus, the burden does not shift to Defendants to create a triable issue of material fact. For these reasons, Plaintiff HOF REO 1 LLC’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication is DENIED.