Judge: Mark A. Young, Case: 23SMCV01560, Date: 2023-10-31 Tentative Ruling
Case Number: 23SMCV01560 Hearing Date: January 23, 2024 Dept: M
CASE NAME: WW Westwood LP,
v. Nikjoo
CASE NO.: 23SMCV01560
MOTION: Motion
for Summary Judgment/Adjudication
HEARING DATE: 1/23/2024
Legal
Standard
A party may move for summary
judgment in any action or proceeding if it is contended the action has no merit
or that there is no defense to the action or proceeding. (CCP, § 437c(a).) “The
purpose of the law of summary judgment 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.)
“A party may move for summary adjudication as
to one or more causes of action within an action, one or more affirmative
defenses, one or more claims for damages, or one or more issues of duty, if the
party contends that the cause of action has no merit, that there is no
affirmative defense to the cause of action, that there is no merit to an
affirmative defense as to any cause of action, that there is no merit to a
claim for damages, as specified in Section 3294 of the Civil Code, or that
one or more defendants either owed or did not owe a duty to the plaintiff or
plaintiffs.” (CCP, § 437c(f)(1).) If a party seeks summary
adjudication as an alternative to a request for summary judgment, the request
must be clearly made in the notice of the motion. (Gonzales v. Superior
Court (1987) 189 Cal.App.3d 1542, 1544.) “[A] party may move for
summary adjudication of a legal issue or a claim for damages other than
punitive damages that does not completely dispose of a cause of action,
affirmative defense, or issue of duty pursuant to” subdivision (t).
(CCP, § 437c(t).)
To
prevail, the evidence submitted must show there is no triable issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law. (CCP, § 437c(c).) The motion cannot succeed unless the
evidence leaves no room for conflicting inferences as to material facts; the
court has no power to weigh one inference against another or against other
evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th
833, 841.) In determining whether the facts give rise to a triable issue of
material fact, “[a]ll doubts as to whether any material, triable, issues of
fact exist are to be resolved in favor of the party opposing summary judgment…”
(Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other
words, the facts alleged in the evidence of the party opposing summary judgment
and the reasonable inferences there from must be accepted as true.” (Jackson
v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if
adjudication is otherwise proper the motion “may not be denied on grounds of
credibility,” except when a material fact is the witness’s state of
mind and “that fact is sought to be established solely by the [witness’s]
affirmation thereof.” (CCP, § 437c(e).)
Once
the moving party has met their burden, the burden shifts to the opposing party
“to show that a triable issue of one or more material facts exists as to that
cause of action or a defense thereto.” (CCP § 437c(p)(1).) “[T]here is no obligation on the opposing party... to establish
anything by affidavit unless and until the moving party has by affidavit stated
facts establishing every element... necessary to sustain a judgment in his
favor.” (Consumer Cause, Inc. v. SmileCare (2001) 91
Cal.App.4th 454, 468.)
“The pleadings play a key role in a summary
judgment motion. The function of the pleadings in a motion for summary judgment
is to delimit the scope of the issues and to frame the outer measure
of materiality in a summary judgment proceeding.” (Hutton v. Fidelity
National Title Co. (2013) 213 Cal.App.4th 486, 493, quotations
and citations omitted.) “Accordingly, the burden of a defendant moving for
summary judgment only requires that he or she negate plaintiff's theories of
liability as alleged in the complaint; that is, a moving party need
not refute liability on some theoretical possibility not included in the
pleadings.” (Ibid.)
EVIDENTIARY ISSUES
Defendant’s objections are OVERRULED.
Analysis
Plaintiff WW Westwood LP moves for
summary judgment on its sole cause of action for unlawful detainer against
Defendant Nikjoo. Alternatively, Plaintiff requests adjudication of the issue
of possession.
As an initial matter, Defendant
requests a continuance of this matter because of ongoing discovery. (Opp., p. 5.)
“If it appears from the affidavits submitted in opposition to a motion
for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot,
for reasons stated, be presented, the court shall deny the motion [for summary
judgment or adjudication], order a continuance to permit affidavits to be
obtained or discovery to be had, or make any other order as may be just . . ..”
(Code Civ. Proc., § 437c(h).) Defendant must demonstrate:
“(1) the facts to be obtained are essential to opposing the motion, (2) there
is reason to believe such facts may exist, and (3) the reasons why additional
time is needed to obtain these facts.” (Chavez v. 24 Hour Fitness USA, Inc.
(2015) 238 Cal.App.4th 632, 643.) Here,
Defendant has not met his burden of
establishing that additional facts exist that are essential to justify this
opposition, but cannot be presented.
(See Nikjoo Decl., ¶ 16.)
As to the motion for summary judgment,
Plaintiff failed to meet its initial burden of persuasion to show entitlement
to the back rent and accruing holdover damages claimed in the Complaint and in
the motion. Plaintiff presents evidence that it has already recovered these
sums in a separate unlimited action. On October 12, 2023, Plaintiff prevailed
in a related breach of contract action (21SMCV00176). The Court entered
judgment in favor of Plaintiff and against Defendant for rent under the lease
from April 2020, through August 2023. In this action and motion, Plaintiff, necessarily
seeks the same sums already recovered in the breach of contract action. If the
Court were to grant summary judgment, including the $52,517.51 plus holdover
damages, the Court would grant an impermissible double recovery to Plaintiff.
Plaintiff presents no authority that it would somehow be entitled to a second
judgment containing previously adjudicated damages. Therefore, the motion for
summary judgment is DENIED.
Plaintiff also noticed summary
adjudication on the issue of possession only. A landlord may obtain possession
of leased premises from a tenant who continues in possession without the
landlord’s permission after a tenant’s default on its obligation to pay rent pursuant
to a lease and after the landlord has duly served on the tenant a three day
notice to pay rent or quit. (Code Civ. Proc. § 1161(2); see Northrop Corp.
v. Chaparral Energy, Inc. (1985) 168 Cal.App.3d 725, 729-730 [summary
adjudication will lie where there is no dispute about the right to
possession—where the moving papers establish proper service, grounds and
expiration of the applicable notice period]; see also Ernst Enterprises,
Inc. v. Sun Valley Gasoline, Inc. (1983) 139 Cal.App.3d 355, 358 [adjudication
improper where a genuine issue exists as cause to terminate the tenancy,
whether the notice to terminate stated the precise amount of rent due, or whether
the landlord acted with an retaliatory motive].)
Plaintiff sets forth sufficient
evidence to meet its burden to demonstrate entitlement to possession of the Premises.
It is undisputed that Plaintiff is the owner of the Premises. (Martin Decl., ¶
3; Exs. 1-2.) Plaintiff entered into the subject Lease with Defendant for the
rental of the Premises pursuant to its terms. (Id., ¶¶ 5-7, Exs. 3-5, 20.) Defendant
was therefore required to pay monthly rent pursuant to the terms of the Lease.
(Id.) It is further undisputed that Defendant did not pay rent beginning April
2020 and continuing through the present, and is in default under the Lease.
(Id. ¶¶ 11-20, Ex. 11.) Plaintiff served a valid Three-Day Notice requiring
Tenant to pay rent for the twelve-month period prior to the date of the notice,
which is approximately $52,517.51. This approximation is proper based on the
commercial nature of the lease, and the terms of the lease. Tenant did not pay
the amount stated in the Three-Day Notice within three days following receipt
of the notice, and has continued in his failure to pay rent when due. (¶¶
18-20, Ex. 11.) Tenant remains in possession. (¶ 21.) The Court previously
found that the notice facially met the statutory requirements of section 1161(2)
or 1161.1.
Defendant opposes the motion,
arguing that there are disputes of facts regarding the amount of rent owed. Defendant
fails to demonstrate, however, that he cured the default within the required
period. Defendant asserts, without evidentiary support, that Defendant
specified on each rent check how he intended the rent to be applied, and
Plaintiff cannot therefore seek to carry the rent forward per Civil Code § 1479.
Defendant only provides his conclusory, non-substantive declaration that it was
“Plaintiff’s own refusal to accept rent following its initiation of this
improper action that led to its claims in this case,” without specific evidence
regarding his purported payments. (Nikjoo Decl., ¶ 8.) This evidence does
nothing but imply that Plaintiff failed to give credit to payments made
but does not evidence any payments made.
Likewise, defendant submits no
substantive evidence disputing service of the notice. Defendant only provides
the conclusory statements that defendant and his assistant were not served with
the notice, and that the notice was not posted on the premises. (See Millan
Decl., ¶ 4; Nikjoo Decl., ¶ 4.) Such evidence is not specific and substantial
evidence that will support a dispute of material fact on summary judgment.
Defendant also presents no evidence
that would contest the approximate due rent on the Three Day Notice. Defendant
also purports to “dispute” the accounting, but provides no affirmative evidence,
such as an issue with the CAM fees. Thus, Defendant fails to present a dispute
of material fact regarding entitlement to possession.
For these reasons, the alternative
motion for summary adjudication for the issue of possession is GRANTED.