Judge Lynette Gridiron Winston, Case Number: 22PSCV01124, Date: 2024-04-10 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 22PSCV01124, Date: 2024-04-10 Tentative Ruling

Case Number: 22PSCV01124 Hearing Date: April 10, 2024 Dept: 6

CASE NAME: Great New World Equity LLC v. Zhou’s Investment & Management, Inc., dba The Noodle

Plaintiff Great New World Equity LLC’s Motion for Summary Judgment

TENTATIVE RULING

The Court GRANTS Plaintiff’s motion for summary judgment, subject to Defendant providing evidence of the existence of a triable issue of material fact.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is an unlawful detainer action. On September 29, 2022, plaintiff Great New World Equity LLC (Plaintiff) filed this action against defendant Zhou’s Investment & Management, Inc., dba The Noodle (Defendant), alleging the sole cause of action for unlawful detainer.

On March 11, 2024, Plaintiff filed a motion for summary judgment. On March 27, 2024, Defendant opposed Plaintiff’s discovery motions. Defendant has not opposed the motion for summary judgment as of the time this tentative ruling was prepared, but the Court will still consider any opposition Defendant may file before or may make orally at the hearing. (Cal. Rules of Court, rule 3.1351, subd. (b).)

LEGAL STANDARD – Summary Judgment

Motions for summary judgment may be made in unlawful detainer actions upon five days’ notice, and are to otherwise be decided according to Code of Civil Procedure section 437c. (Code Civ. Proc., § 1170.7.) 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. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “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, italics in original and quoting Code Civ. Proc., § 437c, subd. (c).) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.)

“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 plaintiff moving for summary judgment or summary adjudication “has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff ... has met that burden, the burden shifts to the defendant ... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant … shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).) “[A] plaintiff 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.” (Aguilar, supra, 25 Cal.4th at p. 850, citing Code Civ. Proc., § 437c, subd. (o)(1).)”

Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

DISCUSSION – Motion for Summary Judgment

Summary of Material Facts

In December 2011, Plaintiff’s predecessor-in-interest entered into a written commercial lease agreement (the Lease) for the subject property located at 19755 E. Colima Road, Unit C, Rowland Heights, CA 91748 (the Premises) for 240 months. (SSF 1.) The currently monthly rent is $13,996.08. (SSF 3.) In 2015, Plaintiff acquired title to the Premises. (SSF 4.) In 2018, Defendant executed a tenant estoppel certificate confirming that Plaintiff and Defendant were not in default performing under the Lease, and there were no disputes concerning the Lease, the Premises or any improvements. (SSF 5.)

In June 2021, Defendant submitted a letter to Plaintiff asking for $90,190.97 for reimbursement in the form of offset rent regarding tenant improvements dating back to 2012. (SSF 6.) Plaintiff rejected the request, and Defendant stopped paying rent for several months before resuming payments in October 2021. (SSF 7-8.) Defendant still failed to pay the outstanding balance of unpaid rent from March through September 2022, and owes $90,190.97 as a result. (SSF 11.)

On September 23, 2022, Plaintiff served a three-day notice to pay rent or quit (the 3-Day Notice) for the $90,190.97 in past due rent. (SSF 12-13.) Defendant has not paid the past due rent. (SSF 14.) There is no written contract between the parties that provides for Plaintiff agreeing to reimburse Defendant for tenant improvement costs incurred in 2012, and the Lease does not provide for tenant improvement allowance. (SSF 15, 17.) Defendant is still occupying the Premises. (SSF 16.)

Analysis

“’The basic elements of unlawful detainer for nonpayment of rent ... 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.’ [Citation.]” (KB Salt Lake III, LLC v. Fitness Int'l, LLC (2023) 95 Cal.App.5th 1032, 1045.)

Plaintiff contends the undisputed evidence shows that: (1) Plaintiff owns and leases the Premises, (SSF 1, 4); (2) Plaintiff leased the Premises to Defendant, (SSF 1); (3) Defendant was obligated under the Lease to pay monthly rent, which is currently $13,996.08, (SSF 2, 3); (4) Plaintiff properly gave Defendant three days’ written notice to pay the rent or vacate the Premises, (SSF 12); (5) as of September 23, 2022, Defendant owed at least $90,190.97 as stated in the three-day notice, (SSF 12); (6) Defendant did not pay, (SSF 14); and (7) Defendant is still occupying the Premises, (SS 16).

Plaintiff contends Defendant has an independent covenant to pay rent, and cannot use any purported setoff from tenant improvements as an affirmative defense or justification for nonpayment of rent, and that the issue of offset should be addressed in the related action. Plaintiff also contends the Lease provides no contractual obligations for Plaintiff to reimburse Defendant’s tenant improvement costs, which is affirmed by the 2018 tenant estoppel certificate Defendant executed. Plaintiff further contends no verbal agreement regarding reimbursement would be enforceable per the statute of frauds.

The Court finds Plaintiff has established the absence of a defense to the unlawful detainer claim. Plaintiff has provided evidence of the Lease, its ownership of the Premises, Defendant’s failure to pay past due rent following receipt of the three-day notice, and Defendant’s continued possession of the Premises. (SSF 1-4, 12, 14, 16; KB Salt Lake III, LLC, supra, 95 Cal.App.5th at p. 1045.) The law also clearly states that the tenant cannot use an unrelated debt of the landlord to the tenant to setoff past due rent. (Nork v. Pacific Coast Medical Enterprises, Inc. (1977) 73 Cal.App.3d 410, 415 [“A tenant may not claim an earlier unrelated debt owed by the landlord as a setoff for past due rent.”]) There also does not appear to be anything in the Lease that provides Defendant with the right to be reimbursed for tenant improvements. (Compendium of Evidence, Ex. 2.) Additionally, Defendant executed the 2018 tenant estoppel certificate, which indicates that there are no disputes between the parties concerning the Lease, the Premises, or any improvements thereon. (Id., Ex. 7.)

The Court therefore finds Plaintiff has met its moving burden. The burden now shifts to Defendant to establish the existence of a triable issue of material fact. The Court will consider any opposition Defendant may file before the hearing or may make orally at the hearing before reaching its final decision herein. (Cal. Rules of Court, rule 3.1351, subd. (b).)

Based on the foregoing, the Court GRANTS Plaintiff’s motion for summary judgment, subject to Defendant providing evidence of the existence of a triable issue of material fact.

CONCLUSION

The Court GRANTS Plaintiff’s motion for summary judgment, subject to Defendant providing evidence of the existence of a triable issue of material fact.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.

CASE NAME: Great New World Equity LLC v. Zhou’s Investment & Management, Inc., dba The Noodle

1. Great New World Equity LLC’s Motion to Compel Responses to Form Interrogatories (Set One); and

2. Great New World Equity LLC’s Motion to Deem Requests for Admission (Set One) Admitted.

TENTATIVE RULING

If no verified responses were served prior to the hearing, the Court will GRANT Plaintiff’s motion to compel responses to Form Interrogatories (Set One) and motion to deem Requests for Admission (Set One) admitted. The truth of the matters specified in Requests for Admission (Set One) will be deemed admitted and conclusively established as to Defendant. Defendant will also be ordered to serve complete and verified responses, without objection, to Form Interrogatories (Set One) within 5 days of the Court’s order.

The Court DENIES Plaintiff’s requests for monetary sanctions.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.

The Court notes that the granting of Plaintiff’s motion for summary judgment will render these discovery motions moot.

BACKGROUND

On March 11, 2024, Plaintiff filed a motion to compel responses to Form Interrogatories (Set One) and motion to deem Requests for Admission (Set One) admitted. On March 27, 2024, Defendant opposed these motions. Plaintiff did not reply.

LEGAL STANDARD – Discovery Motions

When a party fails to serve a timely response to interrogatories, the party propounding the interrogatories may move for an order compelling a response. (Code Civ. Proc., § 2030.290, subd. (b).) A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (Id., § 2030.290, subd. (a).) “The court shall impose a monetary sanction… against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Id., § 2030.290, subd. (c).)

When a party fails to serve a timely response to a request for admission, the party propounding the request for admission may move for an order to deem the genuineness of any documents and the truth of any matters specified in the requests admitted. (Code Civ. Proc., §¿2033.280, subd. (b).) A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (Id., § 2033.280, subd. (a).) “The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. It is mandatory that the court impose a monetary sanction… on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Id., § 2033.280, subd. (c).)

DISCUSSION

Plaintiff served Form Interrogatories (Set One) and Requests for Admission (Set One) on Defendant on January 3, 2024. (Wu Decls., ¶ 2.) Plaintiff granted Defendant an extension until February 23, 2024, to respond to this written discovery, but Defendant failed to respond. (Id., ¶¶ 5-8.) Defendant acknowledges in its opposition that it has not responded yet, but indicates that it will respond, at least as to the Requests for Admission, by the hearing date. (Opp., 2:1-7.)

The Court finds Plaintiff’s motions to be well taken and will GRANT them unless Defendant has served verified responses prior to the hearing. The Court will deem the truth of the matters specified in Requests for Admission (Set One) admitted and conclusively established as to Defendant. The Court will further order Defendant to provide complete and verified responses, without objection, to Plaintiff’s Form Interrogatories (Set One) within 5 days of the Court’s order.

As for the requests for monetary sanctions, the Court DENIES them. Plaintiff’s requests for monetary sanctions do not comply with Code of Civil Procedure section 2023.040, which requires the persons, parties, or attorneys against whom sanctions are sought to be identified in the notice of the motion. (Code Civ. Proc., § 2023.040.) Plaintiff’s notices do not identify the parties against whom the sanctions are sought, nor do they even specify the amounts they seek. (Notices, pp 1-2.) In fact, nowhere in the notices does Plaintiff even indicate that it is requesting monetary sanctions. (Id.) Although Plaintiff addresses the foregoing at various pages of their Memorandum of Points and Authorities (pp. 3:5-6, 6:10-12, 6:15-17), this is insufficient to provide Defendant with adequate notice of the monetary sanctions Plaintiff seeks against Defendant. Again, all pertinent information supporting Plaintiff’s monetary sanctions request must be included in the notice of motion, not elsewhere in the moving papers. (Code Civ. Proc., § 2023.040.) Consequently, Plaintiff’s request for monetary sanctions is denied.

Based on the foregoing, the Court will GRANT Plaintiff’s discovery motions, but DENY the requests for monetary sanctions.

CONCLUSION

The Court DENIES Plaintiff’s requests for monetary sanctions.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.

The Court notes that the granting of Plaintiff’s motion for summary judgment will render these discovery motions moot.