Judge: Matthew C. Braner, Case: 37-2023-00050212-CU-UD-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 29, 2024

03/29/2024  02:31:00 PM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Unlawful Detainer - Commercial Summary Judgment (UD) 37-2023-00050212-CU-UD-CTL VISTA CAMPANIA PARTNERS LLC VS DARU RESTAURANT GROUP LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiffs Vista Campania Partners, LLC, 77 Danbe Partners, LLC, Beachwood Manor Exchange, LLC, Rosecrans Partners, LLC, and Panorama Deux, LLC's motion for summary judgment is GRANTED.

The elements Plaintiffs must prove to succeed on an unlawful detainer cause of action under Code of Civil Procedure section 1161(2), based on nonpayment of rent, are: - Standing to bring the action; - A landlord-tenant relationship; - Default on the payment of rent; - Service of a three-day notice to pay rent or quit; - Non-compliance with the three-day notice to pay rent or quit; and - Continued possession by the defaulting tenant.

Plaintiff has met its burden to establish each of these elements. The following facts are undisputed: 1) Plaintiffs own the premises located at 9430 Scranton Rd., Suite 101/102 (the 'Property'); 2) in connection with the Property, Plaintiffs entered a written commercial lease with Defendant Daru Restaurant Group, LLC in February 2020; 3) Defendant was required by the lease to begin making rent payments no later than 150 days after October 18, 2021 (the 'Turn Over date') or the date Defendant opens for business; 4) Defendant opened for business on November 15, 2022, and has continued to operate its business from that date to the present; 5) Defendant has not paid any rent whatsoever since it opened for business; 6) Plaintiffs served a Three-Day Notice to Pay Rent or Quit on Defendant on November 8, 2023, using the notice procedure outlined in section 33.xviii of the lease, and demanding $143,528.63 in unpaid rent accrued since Defendant opened for business to the date of the notice; 7) Defendant did not pay the outstanding rent, and remains in possession of the Property.

The above undisputed facts are sufficient for Plaintiffs to meet their moving burden to show they have met all the elements under Code of Civil Procedure section 1161(2).

In opposition, Defendant primarily contends the disputes of fact exist concerning the calculation of rent and whether certain provisions of the lease were violated. However, these arguments are irrelevant to the issue of possession. Defendants only two arguments concerning possession are without merit.

First, Plaintiffs have presented sufficient evidence to show that each of the entities are real parties in interest, and each are businesses qualified to do business in California.

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3098849  59 CASE NUMBER: CASE TITLE:  VISTA CAMPANIA PARTNERS LLC VS DARU RESTAURANT GROUP  37-2023-00050212-CU-UD-CTL Second, Defendant cannot rely on the notice provisions of Code of Civil Procedure section 1162(b) to dispute the appropriateness of Plaintiffs' manner of serving the 3-day Notice to Pay Rent or Quit. Unlike with residential leases, parties to a commercial lease, as here, can agree to notice provisions that differ from the statutory notice provisions. (See, e.g., Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc. 185 Cal.App.4th 744, 750 ['In commercial leases the landlord and commercial tenant may lawfully agree to notice procedures that differ from those provided in the statutory provisions governing unlawful detainer.']; Folberg v. Clara G. R. Kinney Co. (1980) 104 Cal.App.3d 136, 140 ['The parties could lawfully agree to notice requirements different from and superseding those contained in section 1161 because the lease was commercial rather than residential.'].) Here, Plaintiffs served the notice by Federal Express, an authorized method under the lease, and sent the notice to the addresses specified in the lease, and sent a copy to Defendant's counsel pursuant to the lease.

Accordingly, Plaintiffs' motion for summary judgment is granted.

Plaintiffs are to file a Judgment for Possession in conformance with this order.

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