Judge: Mark C. Kim, Case: 22LBCV00135, Date: 2022-07-28 Tentative Ruling

Case Number: 22LBCV00135    Hearing Date: July 28, 2022    Dept: S27

1.     Complaint

Plaintiff, The Fort Inn, Inc. filed this action against Defendant, 1715 W. Anaheim, Inc. for unlawful detainer.  Plaintiff’s complaint alleges Defendant has refused to vacate the subject property despite being served with a three-day notice to pay rent or quit and a three-day notice to perform covenants or quit.  The three-day notices are attached to the complaint as exhibits.  The three-day notice to pay rent or quit demands Defendant pay past-due rent from 11/01/18 to 3/01/22 in the total amount of $227,099.98.  The three-day notice to perform or quit demands Defendant remove all weed and debris, repair and replace all broken wall coverings, repair and replace all windows, replace the defective and deteriorating roof covering, and remove all graffiti. 

2.     Motion for Summary Judgment/Adjudication

a.     Relief Sought

Defendant moves for summary judgment on the complaint.  It contends neither three-day notice was served in compliance with the law and/or the parties’ duties under the lease, and therefore neither can form the basis of an unlawful detainer action.  Alternatively, it moves for summary adjudication of each of the two three-day notices that form the basis of the complaint.

b.     Opposition

Plaintiff contends inclusion of the full amount of rent due in the three-day notice to pay or quit does not invalidate the notice.  It contends there are triable issues of material fact concerning whether Defendant performed the covenants at issue in connection with the three-day notice to perform or quit.

c.     Three-Day Notice to Pay Rent or Quit

As noted above, Plaintiff’s three-day notice to pay rent or quit demands Defendant pay rent from November of 2018 to the present.  Defendant argues a three-day notice in the commercial context cannot seek more than one year’s worth of rent, and any additional rent must be sought by way of a breach of contract action only.  The parties discuss the case of Levitz Furniture Co. v. Wingtip Communications, Inc. (2001) 86 Cal.App.4^th 1035, 1038 in connection with this issue. 

In Levitz, the Court of Appeals noted, “A notice that seeks rent in excess of the amount due is invalid and will not support an unlawful detainer action,” and also, “If the landlord waits over a year to sue for unpaid rent, he or she is limited to collecting such rent in a standard breach of contract action.”    The landlord in Levitz sought, by way of its three-day notice, rent due for the thirteen months prior to service of the notice.  The landlord included a statement that the amount due was an estimate.  The trial court entered judgment in favor of the tenant, finding that the three-day notice improperly included an amount in excess of the past year’s rent due.  The Court of Appeals reversed, finding that including one extra month was not fatal where the three-day notice made clear that it was an estimate. 

The Court of Appeals went on to explain the purpose behind the two different provisions of CCP §1161.1 and §1161(2).  §1161.1 permits a commercial landlord to provide an estimate of the amount due because rents due in the commercial contest are often complicated, including percentages of gross profits, property taxes, etc., in their calculation.  §1161(2) prohibits a landlord from filing an unlawful detainer based on rents due more than a year prior, so that a landlord cannot sit on his rights and then use this summary proceeding at a later date.  The Levitz Court stated, “However, we see no reason why a three-day notice that demands payment of rents due within one year of the notice is automatically invalidated because it also sets out (or demands) rent due more than a year before the notice.  Such invalidation is not mandated by the policy underlying the section provision of section 1161(2), preventing a landlord from using long overdue rent – but no rent unpaid within one year – to effect an eviction.”

Defendant herein argues Levitz is distinguishable because, instead of including rent due for one extra month, Plaintiff included rent due for multiple years.  However, the policy behind Levitz remains the same: the three-day notice includes the rent due from the past year, such that the policy precluding “sitting on one’s hands” is not implicated. 

Absent subsequent or contrary authority making clear that including larger amounts of past due rent is improper, the Court denies the motion for summary judgment/adjudication on this ground.

d.     Three-Day Notice to Perform or Quit

Defendant also seeks summary adjudication of the three-day notice to perform or quit.  The complaint, however, sets forth a single cause of action for unlawful detainer.  Defendant fails to show that summary adjudication of one component of the single cause of action is appropriate under CCP §437c(f), which only permits adjudication of a cause of action, affirmative defense, claim for damage, or issue of duty.  Additionally, the Court has reviewed the opposition in this regard and finds there are triable issues of material fact concerning performance.  The Court therefore declines to rule on this separate motion for summary adjudication, but would be inclined to deny it if it were properly before the Court. 

Defendant is ordered to give notice. 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.