TENTATIVE RULING

Plaintiff Kapa Investment’s Motion for Summary Judgment, or, in the Alternative, Summary Adjudication is DENIED.

Plaintiff Kapa Investment to give notice. 

REASONING

Request for Judicial Notice

Plaintiff Kapa Investment (“Plaintiff”) requests judicial notice of Defendants Collision Craft, Inc. (“Collision Craft”) and Richard Jay Rogers (“Rogers”) (collectively “Defendants”)’s answers in this action. Plaintiff’s request is GRANTED pursuant to Evidence Code section 452, subdivision (d).

Analysis

Plaintiff moves for summary judgment or adjudication on the ground that the lease at issue requires Defendants to pay rent on a monthly basis, Defendants failed to pay rent as required, Plaintiff served the requisite 3-Day Notice to Pay Rent or Quit, Defendants failed to pay rent within three days, and Defendants failed to vacate the premises. Plaintiff also contends there is no triable issue of material fact regarding Rogers’ failure to pay under the guaranty.

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 allleges it entered into an agreement with Collision Craft to lease the premises at 2001 South La Cienega Boulevard pursuant to a written agreement, and in January 2019, the parties entered into a written extension of the lease for another 60-month term. (Compl. ¶ 6.) The current base rent for the premises is $44,000.00 per month, and Collision Craft is responsible for property tax payments, with the February 2024 property tax payment for the premises being $1,309.60. (Compl. ¶ 7.) Plaintiff alleges Collision Craft failed to make the February 2024 rent payment, and on February 5, 2024, Plaintiff served a 3-day notice to pay rent or quit. (Compl. ¶¶ 8-10, Ex. C.) Collision Craft made a rent payment of $30,000.00 on February 20, 2024, but the balance of the lease on that date was $287,123.16, such that the payment was not applied to the February rent payment. (Compl. ¶ 11.) Plaintiff seeks unpaid rent of $45,309.60 for February 2024 and daily damages of $1,489.63 per day after March 1, 2024. (Compl., p. 4.)

“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 is the owner of the real property located at 2001 South La Cienega Boulevard, and on May 27, 2014, Collision Craft entered into the Standard Industrial/Commercial Single-Tenant-Lease-Net for the Premises, while Rogers, Collision Craft’s president, guaranteed performance of the lease on behalf of Collision Craft. (Pl.’s UMF Nos. 1-3.) In January 2019, Plaintiff and Collision Craft agreed to extend the term of the lease 60 months to June 30, 2024. (Pl.’s UMF No. 4.) Under section 1.5 of the lease, rent is due on the first day of the month, and under the 2019 amendment, the current base rent for the premises of $44,000.00 per month. (Pl.’s UMF Nos. 5-6.) Plaintiff points to the lease and states that Collision Craft is also responsible for property tax payments, and the property tax payment for February 2024 was $1,309.60. (Pl.’s UMF Nos. 7-8.)

Collision Craft and Rogers failed to make the February 2024 rent payment of $45,309.60, and Plaintiff’s president Kami Pahlavan served a 3-Day Notice to Pay Rent or Quit on Collision Craft by email on February 5, 2024, pursuant to section 23.1 of the lease. (Pl.’s UMF Nos. 9-10.) Pahlavan sent the notice to Rogers’ email address for notice, as Rogers had instructed Plaintiff to use this email for notices under the lease and had previously used this email to communicate with Pahlavan. (Pl.’s UMF Nos. 11-12.) Defendants failed to pay the amount stated in the notice within three days, but on February 20, 2024, Defendants made a payment of $30,000.00 to Plaintiff. (Pl.’s UMF Nos. 14-15.) As of January 31, 2024, the balance owed under the lease was $237,282.60, such that the payment was not applied to the February rent payment because section 4.2 of the lease provides that payments under the lease “will be applied first to accrued late charges and attorney’s fees, second to accrued interest, then to Base Rent, Insurance and Real Property Taxes, and any remaining amount to any other outstanding charges or costs.” (Pl.’s UMF Nos. 16-17.) Defendants have failed to pay the full amount due in the notice, and Defendants remain in possession of the premises. (Nos. 19-20.) The daily rental value of the premises if $1,489.63.) (Pl.’s UMF No. 21.)

In opposition, Collision Craft argues that Plaintiff has failed to provide sufficient evidence that Collision Craft owed $1,309.60 in property taxes for February 2024. The declaration of Kami Pahlavan states only that From January 1, 2024 to June 30, 2024, Collision Craft’s property tax payments are $1,309.60 per month (Mot., Pahlavan Decl. ¶ 4), but there is no provision in the lease allowing Plaintiff to charge for “property taxes,” as paragraph 10.2 allows for payment of a Real Property Installment Tax, and paragraph 10.4 allows for payment of Personal Property Taxes, and the notice does not indicate whether the “property taxes” are real property taxes or personal property taxes.

Paragraph 10.2 of the lease, relating to Payment of Taxes, states in relevant part as follows:

In addition to Base Rent, Lessee shall pay to Lessor an amount equal to the Real Property Installment Tax installment due at least 20 days prior to the applicable delinquency date. . . . ln the event Lessee incurs a late charge on any Rent payment, Lessor may estimate the current Real Property Taxes, require and that such taxes be paid in advance with the payment of Base Rent. Such monthly payments shall be an amount equal to the amount of the estimated installment of taxes divided by the months remaining before the month in which said installment becomes delinquent. When the actual amount of the applicable tax bill is known, the amount of such equal monthly advance payments shall be adjusted as required to provide needed to pay the applicable taxes.

(Mot., Pahlavan Decl. ¶ 2, Ex. 1.)

The Personal Property Taxes provision at paragraph 10.4 provides as follows:

Lessee shall pay prior to delinquency, all taxes assessed and levied by Lessee Owned Alterations, Utility Installations, Trade Fixtures, furnishings, equipment and all personal property of Lessee. When possible, Lessee shall cause its Lessee Owned Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all other personal property to be assessed and billed separately from the real property of Lessor. If any of Lessee’s said property shall be assessed with Lessor’s real property, Lessee shall pay Lessor the taxes attributable to Lessee’s property within 10 days after receipt of a written statement setting forth the taxes applicable to the Lessee’s property.

(Mot., Pahlavan Decl. ¶ 2, Ex. 1.)

Notably, neither provision defines either real property taxes or personal property taxes as rent. Paragraph 4.1 of the lease states that “[a]ll monetary obligations of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are deemed to be rent (“Rent”)” (Mot., Pahlavan Decl. ¶ 2, Ex. 1), but this contradicts the provisions relating to the taxes, which contemplates that the taxes are owed in addition to rent.

It is well established that a defective notice is fatal to an unlawful detainer complaint. (Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1117.) “A valid three-day pay rent or quit notice is a prerequisite to an unlawful detainer action,” and “[a] notice which demands rent in excess of the amount due does not satisfy [the] requirement” that the notice contain “the amount which is due.” (Bevill v. Zoura (1994) 27 Cal.App.4th 694, 697; see also Code Civ. Proc., § 1161, subd. 2.) Code of Civil Procedure section 1161, subdivision 2, requires notice of rent due only, and Plaintiff included what may be considered non-rent charges in the notice. Plaintiff did not state that the notice constituted an estimate of rent owed, and a notice based on nonpayment of rent is invalid where the notice included non-rent property taxes. (See WDT-Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526-531 [inclusion of property taxes in notice rendered notice invalid].) Given the contradictions in the lease itself, the Court requires the submission of additional evidence to determine whether the parties contemplated either Payment of Taxes or Personal Property Taxes to constitute rent, i.e., Plaintiff has not established its claim for unlawful detainer. For this reason, Plaintiff Kapa Investment’s Motion for Summary Judgment, or, in the Alternative, Summary Adjudication is DENIED.