Judge: Mark E. Windham, Case: 23STLC05679, Date: 2024-07-09 Tentative Ruling
Case Number: 23STLC05679 Hearing Date: July 9, 2024 Dept: 26
Faliero, et al. v. Karakhanian, et al.
SUMMARY
JUDGMENT
(CCP § 437c)
TENTATIVE RULING:
Plaintiffs/Cross-Defendants
Kenneth C. Faliero and Megan A. Faliero’s Motion for Summary Judgment as to the
Complaint and Cross-Complaint is DENIED.
ANALYSIS:
Plaintiffs Kenneth
C. Faliero and Megan A. Faliero (“Plaintiffs”) filed the instant action for
breach of contract, and violation of Civil Code section 1950.5, subdivisions
(b), (e), (f), (g), and (l) against Defendant Armen Karakhanian (“Defendant”)
on September 1, 2023. On October 16, 2023, Defendant filed a Cross-Complaint
for breach of lease agreement against Plaintiffs.
Plaintiffs filed
the instant Motion for Summary Judgment on April 5, 2024. Defendant filed an
opposition on April 29, 2024 and Plaintiffs replied on May 31, 2024.
Discussion
Factual Allegations in the Complaint and Cross-Complaint
Plaintiffs allege they entered
into a residential lease agreement with Defendant to rent the premises at 1801
Cielito Drive, Glendale, California (“the Premises”) starting on June 1, 2021,
for one year. (Compl., ¶8 and Exh. A.) The lease would terminate on June 1,
2022 unless Defendant continued to accept rent, which would create a
month-to-month tenancy. (Id. at ¶10.) Either party could terminate the
month-to-month tenancy with a 60-day written notice of termination. (Ibid.)
Plaintiffs paid Defendant a $6,000.00 security deposit pursuant to the lease
agreement. (Id. at ¶11.) Plaintiffs remained at the Premises after June
1, 2022 pursuant to a month-to-month tenancy. (Id. at ¶14.) On April 14,
2023, Plaintiffs sent Defendant a written request for a shorter termination
period than the 60 days provided for in the lease. (Id. at ¶15 and Exh.
B.) On May 7, 2023, Plaintiffs texted Defendant that they could vacate the
Premises on May 16, 2023, to which Defendant agreed. (Id. at ¶18.) On
May 17, 2023, Defendant picked up the keys to the Premises on May 17, 2023. (Id.
at ¶20.) On June 7, 2023, Plaintiffs asked Defendant about the security deposit
to which he responded that he was unable to secure a new tenant so they were
responsible for rent until June 14, 2023. (Id. at ¶21.) On June 18,
2023, Defendant sent Plaintiffs an email stating he was deducting $2,613.00 in
rent for May 16, 2023 to June 14, 2023, $750.00 for damage to shelves in the
pantry room and office, and $700.00 to clean the living room floor. (Id.
at ¶22 and Exh. C.)
In the Cross-Complaint, Defendant
makes the same initial factual allegations regarding execution of the lease
agreement but goes on to allege that the lease provides tenants shall not make
any alterations to the Premises without the landlord’s prior written consent.
(Cross-Compl., ¶ 14.) The lease also provides that if the lease is terminated
prior to completion of the original term of the agreement, Plaintiffs would be
responsible for remaining/lost rent, rental commissions, advertising expenses
and costs necessary to ready Premises for re-rental. (Id. at ¶17.) On
April 14, 2023, Plaintiffs asked Defendant for a shorter termination period
than the 60 days provided for in the lease agreement. (Id. at ¶18 and
Exh. D.) Defendant responded with “60 days” per the lease agreement. (Ibid.)
On April 17, 2023, Plaintiffs sent Defendant a 60-day notice to vacate, which
was backdated to April 14, 2023 and indicated a move-out date of June 13, 2023.
(Id. at ¶19 and Exh. E.) The move-out date should have been June 17,
2024 based on the date of the letter. (Ibid.) On April 18, 2023, the
parties had a phone call in which they agreed Plaintiffs would be responsible
for rent through June 17, 2023 but Defendant would prorate the lease payments
if a new tenant leased the Premises prior to that date. (Id. at ¶21.) On
May 7, 2023, Plaintiffs texted that they would vacate the Premises on May 16,
2023 and the parties thereafter arranged to meet on May 17, 2023 at 10 am. (Id.
at ¶23-24 and Exh. D.) The purpose of the meeting on May 17, 2023 was to hand
over the keys to Defendant and complete the move-out inspection. (Id. at
¶24 and Exh. D.) Plaintiffs, however, were not at the Premises for the move-out
inspection and instead were in Malibu at their store. (Id. at ¶¶25-26.)
Defendant was forced to drive to Oxnard to get the keys and to reschedule a
meeting with a potential renter at 11 am. (Id. at ¶26.) When Plaintiffs
inquired about the security deposit on June 7, 2023, Defendant responded that
no new tenant had been found so Plaintiffs were still responsible for the rent
until June 14, 2023. (Id. at ¶27.)
Request for Judicial Notice
The parties request the Court
take judicial notice of the pleadings in this action. The request is granted
pursuant to Evidence Code section 452, subdivision (d) with respect to the
filing of those documents, but not as to the truth of their contents. (See Adams
v. Bank of America, N.A. (2020) 51 Cal.App.5th 666, 673 [citing Sosinsky
v. Grant (1992) 6 Cal.App.4th 1548, 1569–1570].)
Plaintiffs’ Initial Burden of
Proof -- Complaint
Plaintiffs move for summary judgment on the Complaint
pursuant to Code of Civil Procedure section 437c. On a motion for summary judgment
or adjudication of a particular cause of action, a moving plaintiff must show that
there is no defense by proving each element of the cause of action entitling
the party to judgment on that cause of action. (Code Civ. Proc., § 437c, subd.
(p)(1).) Then the burden shifts to the defendant to show that a triable issue
of one or more material facts exists as to that cause of action or a defense. (Code
Civ. Proc., § 437c, subd. (p)(1).) Additionally, in ruling on the Motion, the
Court must view the “evidence [citations] and such inferences [citations], in
the light most favorable to the opposing party.” (Intrieri v. Superior Court
(2004) 117 Cal.App.4th 72, 81 [citing Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 843].)
An action for breach of contract
must demonstrate the following elements: (1) the existence of the contract, (2)
the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s
breach; and (4) the resulting damages to the plaintiff. (D’Arrigo Bros. of
California v. United Farmworkers of America (2014) 224 Cal.App.4th 790,
800.)
Plaintiffs present evidence that
the lease is a valid contract between the parties. (Motion, Separate Statement,
Fact No. 16; Faliero Decl., Exh. A at pp. 8-9.) They also demonstrate that Defendant
breached section 4 of the lease agreement by failing to provide a written
statement of deductions from the security deposit and return the security
deposit within 21 days of vacating the Premises. (Compl., ¶¶28-29.) Section 4
of the lease agreement states “Within 21 days of TENANT vacating the Premises,
LANDLORD shall furnish TENANT with a written statement indicating any amounts
deducted from the security deposit and shall return the balance of the deposit
to TENANT.” (Motion, Separate Statement, Fact No. 17; Faliero Decl., Exh. A at
¶4.) Plaintiffs vacated the Premises on May 16, 2023. (Motion, Separate
Statement, Fact Nos. 9-10; Faliero Decl., Exh. B, pp. 20-23; RJN, Exh. 2 at
¶¶18-19.) Plaintiffs gave Defendant the keys to the Premises on May 17, 2023.
(Motion, Separate Statement, Fact No. 11; Faliero Decl., ¶11; RJN, Exh. 2 at
¶20.) Defendant did not send an itemization of the security deposit deductions
until June 18, 2023, which was 33 days later. (Motion, Separate Statement, Fact
Nos. 11-13; Faliero Decl., ¶¶11-13 and Exh. D; RJN, Exh. 2 at ¶¶20-22.) Nor has
Defendant returned the security deposit. (Motion, Separate Statement, Fact No.
19; Faliero Decl., ¶19; RJN, Exh. 2 at ¶31.)
Regarding the second element—Plaintiffs’
performance of their obligations under the lease agreement—they contend they
did not breach section 15 regarding alterations to the Premises. Section 15 of
the lease states: “Without LANDLORD’S prior written consent TENANT shall not
make any repairs, alterations or improvements in or about 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.” (Motion, Separate
Statement, Fact No. 21; Faliero Decl., Exh. A at ¶15.) Plaintiffs argue that
because the lease sets forth a list of conduct that constitutes repairs,
alterations or improvements, any other conduct—such as removing shelves from
the pantry room—cannot constitute a repair, alteration, or improvement. This
reading of the lease does not comport with the plain meaning of the word
“including.” Plaintiffs’ argument changes the meaning of the word “including”
to “exclusively” such that only “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” falls within the definition of “repairs, alterations or
improvements.” However, there is no basis to change the meaning of “including”
in this way. (Hayter Trucking, Inc. v. Shell Western E&P, Inc.
(1993) 18 Cal.App.4th 1, 15 [“Generally speaking, words in a contract are to be
construed according to their plain, ordinary, popular or legal meaning, as the
case may be.”].) The ordinary meaning of the verb “include” is “to comprise or
contain as part of a whole.” The specifically listed conduct, therefore, is
just part of a larger category of conduct. Plaintiffs have not shown that they did
not remove the pantry shelves, nor that they obtained prior written permission
to removing the pantry shelves.
Therefore, Plaintiffs have not
carried their initial burden of proof with respect to the first cause of action
for breach of contract. Plaintiffs’ Motion for Summary Judgment with respect to
the Complaint is denied.
Plaintiffs’ Initial Burden of
Proof – Cross-Complaint
A [cross] defendant seeking summary judgment must show either (1) that one or more elements
of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action.
(Code Civ. Proc., § 437c, subd. (p)(2).) A cross-complainant is under no
evidentiary burden to produce rebuttal evidence until the cross-defendant meets
its initial moving burden. (Binder v. Aetna Life Insurance Company
(1999) 75 Cal.App.4th 832, 839-840.)
Defendant’s cross-complaint
alleges that Plaintiffs breached the lease agreement by making alterations to
the Premises without obtaining prior written permission. As discussed above,
Plaintiffs have not carried their initial burden of proof to demonstrate that
they did not breach the lease agreement in this way. Therefore, the Motion for
Summary Judgment is also denied with respect to the Cross-Complaint.
Conclusion
Plaintiffs/Cross-Defendants
Kenneth C. Faliero and Megan A. Faliero’s Motion for Summary Judgment as to the
Complaint and Cross-Complaint is DENIED.
Court clerk to give notice.