Judge: Mark A. Young, Case: 24SMCV01892, Date: 2024-08-13 Tentative Ruling

Case Number: 24SMCV01892    Hearing Date: August 13, 2024    Dept: M

CASE NAME:           Mahgerefteh v. Nehorayan, et al.

CASE NO.:                24SMCV01892

MOTION:                  Motion for Summary Judgment

HEARING DATE:   8/13/2024

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.)¿ 

In an unlawful detainer action, notice of a motion for summary judgment must be given in compliance with Code of Civil Procedure sections 1013 and 1170.7.  (CRC 3.1351(a).)  CCP §¿1170.7 provides that a motion for summary judgment may be made at any time after the answer is filed upon giving five days’ notice. Summary judgment shall be granted or denied on the same basis as a motion under Section 437c. (CCP, §¿1170.7.) Any opposition to the motion and any reply to an opposition may be made orally at the time of hearing. (CRC 3.1351(b).) If a party seeks to have a written opposition considered in advance of the hearing, the written opposition must be filed and served on or before the court day before the hearing. (CRC 3.1351(c).)  Service must be by personal delivery, facsimile transmission, express mail, or other means consistent with CCP §§¿1010-1013, and reasonably calculated to ensure delivery to the other party or parties no later than the close of business on the court day before the hearing. (Id.) The court, in its discretion, may consider written opposition filed later. (Id.)

Analysis

Plaintiff Daniel Mahgerefteh moves for summary judgment against Defendants Alex and Marjan Nehorayan on his unlawful detainer complaint.

The basic elements of unlawful detainer are “(1) the tenant is in possession of the premises; (2) that possession is without permission; (3) the tenant is in default[]; (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.) A three-day written notice to “perform or quit” is proper to evict tenants who have violated any other material covenant of their rental agreement. (CCP § 1161(3); see Civ. Code § 1946.2(c).) The sole issue before the court in an unlawful detainer action is the right to possession. (Briggs v. Electronic Memories & Magnetics Corp. (1975) 53 Cal.App.3d 900, 906.) Proving proper service on lessees of a valid three-day notice to pay or quit is essential to declaring lessor’s judgment for possession under Code of Civil Procedure section 1161. (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1425.)

Plaintiff owns the residential real property located at 719 North Bedford Drive; Beverly Hills, CA 90210. (UMF 1.) Defendants occupy the Premises pursuant to a written rental agreement (the “Lease”) and are the only named tenants on the Lease. (UMF 2; Mahgerefteh Decl., Ex. 1.) The Lease provides the following relevant provisions:

1. PROPERTY:

The Premises are for the sole use as a personal residence by the following named person(s) only: Alex Nehorayan and Marjan Nehorayan. Any person in the Premises, other than those listed in this paragraph are considered guests. Guests are not permitted to stay more than 14 days written consent.

[…]

17. ALTERATIONS; REPAIRS:

Unless otherwise specified by law or paragraph 25C, without Housing Provider's prior written consent, (i) Tenant shall not make any repairs, alterations or improvements in or about the Premises including: painting, wallpapering, adding or changing locks, installing antenna or satellite dish(es), placing signs, displays or exhibits, or using screws, fastening devices, large nails or adhesive materials.

[…]

27. TEMPORARY RELOCATION:

Subject to local law, Tenant agrees, upon demand of Housing Provider, to temporarily vacate Premises for a reasonable period, to allow for fumigation (or other methods) to control wood destroying pests or organisms, or other repairs to Premises. Tenant agrees to comply with all instructions and requirements necessary to prepare Premises to accommodate pest control, fumigation or other work, including bagging or storage of food and medicine, and removal of perishables and valuables. Tenant shall only be entitled to a credit of Rent equal to the per diem Rent for the period of time Tenant is required to vacate Premises.

(UMF 3; Mahgerefteh Decl., Ex. 1.)

Plaintiff presents evidence that Defendants committed three material breaches of the Lease as to the above provisions, which provided the basis for their notice to quit. First, there are additional occupants residing at the Premises that are not listed as tenants in the Lease. (UMF 4.) Second, an unpermitted closet was built upstairs. (UMF 5.) Third, Defendants failed to comply with Plaintiff’s request to temporarily vacate the Premises for “repairs” as required by the Lease. On March 13, 2024, Plaintiff sent Defendants a letter demanding Defendants temporarily vacate the Premises for unspecified repairs in accordance with paragraph 27 of the Lease and provided alternative housing options. (UMF 6.) The purpose of the “repairs” is not clear from the UMFs or from the attached demand letter. (Mahgerefteh Decl., Exs. 2-3.) The only potential repair mentioned is Plaintiff’s demand that the closet be removed and brought back to its original condition. (Id.) Defendants failed to vacate or provide their preferred alternative housing. (UMF 6.)

On April 8, 2024, Plaintiff served Defendants with a Notice to Cure or Quit (First Notice) at the Premises. (UMF 7.) Defendants failed to comply with the first notice. (UMF 8.) On April 12, 2024, Plaintiff served Defendants with a second Notice to Quit at the Premises. (UMF 9.) Defendants failed to comply with the second Notice. (UMF 10.)

Additional Occupants

Strictly construed, Plaintiff does not demonstrate a breach of paragraph 1 of the Lease. This paragraph states that “The Premises are for the sole use as a personal residence by the following named person(s) only: Alex Nehorayan and Marjan Nehorayan. Any person in the Premises, other than those listed in this paragraph are considered guests. Guests are not permitted to stay more than 14 days without Housing Provider’s written consent.” (Ex. 1, ¶ 1, emphasis added.) Plaintiff presents no evidence that the unauthorized co-occupants have stayed more than 14 days. With all reasonable inferences made in favor of the non-moving party, the Court must conclude that they are not “unauthorized co-occupants” but permitted guests as defined under the Lease.

Furthermore, as to the co-occupants, Defendants submit evidence that the allegedly unauthorized co-occupants, Jonah Neborayan and Kayla Nehorayan, are their adult children who reside at the 5-bedroom premises “with full knowledge” of Plaintiff. (A. Nehorayan Decl., ¶¶ 4-6.) Defendants attach letters and texts messages from Plaintiff, acknowledging the existence of other occupants including their children during May 2023. (A. Nehorayan Decl., Ex. 1.) This creates a dispute of material fact as to Defendants’ permission to have their adult children living with them.

Unpermitted Closet

Plaintiff shows a breach of paragraph 17. Plaintiff presents evidence that Defendants added a closet to the premises, which could be considered as “repairs, alterations or improvements” to the premises. Plaintiff also argues that section 9-1-107 of the City of Beverly Hills municipal code would require a permit. Plaintiff does not furnish this section or provide sufficient argument legal argument on this point. Instead, Plaintiff proffers the declaration of counsel, who states that he talked to someone at the City of Beverly Hills, and they confirmed that a closet is a “structure” and would require a permit. Further, this additional basis for default is unstated in the Notices to Quit. Thus, the Court would limit the basis of the default to the breach of paragraph 17.

With the above evidence, Plaintiff demonstrates that Defendants remain in default due to the unpermitted alteration of the Premises, to wit, the closet. Therefore, Plaintiff meets his burden to show a prima facie case of unlawful detainer on this basis.

Defendants demonstrate a dispute of fact as to their breach and default regarding the closet. Defendants argue that Plaintiff waived the specific breaches in question. “Waiver is the intentional relinquishment of a known right after knowledge of the facts.” (Roesch v. De Mota (1944) 24 Cal.2d 563, 572.) A waiver of a contract provision may be express, based on the waiving party’s words, or implied, based on conduct. (Lynch v. California Coastal Commission (2017) 3 Cal.5th 470, 475-476.) For example, waiver may apply where a party acts in manner inconsistent with intent to enforce a right. (Colony Ins. Co. v. Crusader Ins. Co. (2010) 188 Cal. App.4th 743, 753.)

In the unlawful detainer context, it has long been held that a landlord's acceptance of rent with knowledge of breach of condition precludes forfeiture of the lease. (Kern Sunset Oil Co. v. Good Roads Oil Co., (1931) 214 Cal. 435, 440; see Salton Community Services Dist. v. Southard (1967) 256 Cal.App.2d 526 [waiver supported where sublessor accepted rent despite knowing for years about continued camping on premises].) “The mere breach of a covenant in a lease does not effect its termination. [Citation.] On the happening of such a breach the lessor may elect to disregard it and continue the lease in effect, or rely upon it and declare a forfeiture. [Citation.] Conduct of the lessor, with knowledge of a breach, consistent with the continued existence of the lease and inconsistent with its termination by forfeiture supports an inference the lessor has waived the breach. [Citations.] Acceptance of benefits under the lease is such conduct. [Citation.]” (Id. at 533.) It has also been repeatedly held that waiver of a particular breach of a continuing covenant does not waive subsequent similar breaches. (Budaef v. Huber (1961) 194 Cal. App. 2d 12, 20; citing Extension Oil Co. v. Richfield Oil Corp., (1944) 52 Cal.App.2d 105, 108-109 [explaining the nature of continuing covenants].)

Defendants submit evidence that they constructed/repaired the complained-of closet with Plaintiff’s permission. Mr. Nehorayan states that they had “full permission to reinstate the closet to it’s previous use.” (A. Nehorayan Decl., ¶ 7.) Mr. Nehorayan also cites a statement made by Itzhak Bokobza, who explains that in May 2023, he and Mahgerefteh inspected the Premises, and Mahgerefteh made several positive comments about the closet. (Id., Ex. 2.) This contradicts Mahgerefteh’s statement that he “discovered” the closet in November 2023. Accordingly, there is a dispute of fact as to whether Plaintiff waived Defendants’ breach of paragraph 17 by constructing a closet without written permission.

Temporary Relocation

There would also be a dispute of fact as to the default on the temporary relocation request and paragraph 27. The Lease only requires that tenants agree upon demand to temporarily vacate the Premises “for a reasonable period” to allow for “other repairs to Premises” and that they would follow “all instructions and requirements necessary” for such work. Plaintiff does not show the need for the repairs or that the proposed length of time (31 days) was reasonable. Therefore, Plaintiff has not demonstrated that Defendants were obliged to relocate for a “reasonable” period of time for “necessary” work/repairs.

Also, Plaintiff is not clear on what repairs or work was needed which required 31 days of temporary relocation. If Plaintiff desired to repair the closet back to its former state, then Defendants’ default would depend on whether Plaintiff permitted the closet. In other words, if Plaintiff waived his objection to the closet, then he would have necessarily waived his right to force Defendants to vacate the property for Plaintiff to remove the closet. Therefore, because there is a dispute of fact as to Plaintiff’s authorization of the closet, there is also a dispute of fact as to the temporary relocation request.

Plaintiff argues that he could not have waived these provisions because there is an anti-waiver provision in the Lease, stating at paragraph 31: “The waiver of any breach shall not be construed as a continuing waiver of the same or any subsequent breach.” However, Plaintiff presents no authority that a party cannot waive a particular breach in light of such a provision. Instead, Plaintiff’s cited authority suggests that this provision would only operate to limit their waiver from applying to subsequent similar breaches. (Budaef, supra, 194 Cal. App. 2d at 20.)

Accordingly, the motion is DENIED.