Judge: Mel Red Recana, Case: 23STCV09467, Date: 2024-04-26 Tentative Ruling
Case Number: 23STCV09467 Hearing Date: April 26, 2024 Dept: 45
Hearing date: April 26, 2024
Moving Party: Plaintiff David H. Kim
Responding Party: None as of April 23, 2024
Motion for Summary Judgment/Adjudication
The Court considered the moving papers. There was no opposition filed. Plaintiff filed an unauthorized supplemental brief in support of the Motion for Summary Judgment/Adjudication. The Court does not consider Plaintiff’s unauthorized supplement brief, which contains new evidence.
Plaintiff’s Motion for Summary Judgment is GRANTED.
Background
Plaintiff leased commercial property to Defendant DZLA, LLC. Plaintiff served Defendant with three 10-day Notices to Cure or Quit pursuant to CCP §1161(3) and on 30-day Notice to Cure or Quit for violations under Lease §13.1(d) and (e). Plaintiff served three of the notices on March 17, 2023 in accordance with CCP §1162, posting them at the property and mailing them to Defendant’s address for service in the Lease Agreement. Plaintiff served the fourth notice on April 26, 2023, personally serving the occupants at the premises and mailing the notice the Defendants. Defendant did not cure the defaults set forth in the four notices within the time to cure.
On April 28, 2023, Plaintiff filed the instant action for unlawful detainer. On May 23, 2023, Plaintiff filed the operative First Amended Complaint alleging unlawful detainer pursuant to CCP §1161(3).
Legal Standard
“A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (CCP §437c(p)(1).)
“A party is entitled to summary judgment only if it meets its initial burden of showing there are no triable issues of fact and the moving party is entitled to judgment as a matter of law. This is true even if the opposing party fails to file any opposition. The court's assessment of whether the moving party has carried its burden—and therefore caused a shift—occurs before the court's evaluation of the opposing party's papers. Therefore, the burden on the motion does not initially shift as a result of what is, or is not, contained in the opposing papers.” (Mosley v. Pacific Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434–435 (landlord’s failure to address issue of whether they were aware of their tenant’s marijuana growing operation was not grounds to grant summary judgment where moving party failed to satisfy its initial burden as to the issue); Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 (court cannot grant summary judgment based merely on lack of opposition; court must first determine if the moving party has satisfied its burden).)
In addition, the evidence and affidavits of the moving party are construed strictly, while those of the opponent are liberally read. (Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 100.) “All doubts as to the propriety of granting the motion (whether there is any issue of material fact [Code of Civil Procedure] § 437c) are to be resolved in favor of the party opposing the motion (i.e., a denial of summary judgment).” (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)
Discussion
Plaintiff moves for summary judgment based on one of the four Notices to Cure or Quit upon which he bases his First Amended Complaint for Unlawful Detainer. Plaintiff served Defendant with four separate notices detailing four separate breaches of the Lease Agreement under CCP §1161(3). Three of the Notices to Cure or Quit set forth breaches of the §§6.3, 7.3(b) and 13.1(d) of the Lease Agreement requiring that Defendant (1) comply with all applicable building codes, laws, CC&Rs, regulation, and ordinances and (2) refrain from making any alterations or utility installations to the premises without Plaintiff’s consent. (FAC, Exs. 2, 3 and 5.) One of the Notices to Cure or Quit sets forth breach of §8.5 of the Lease Agreement, which required Defendant to provide Plaintiff with copies of required of endorsements evidencing the existence and amounts of insurance mandated under §8.5 of the Lease Agreement. (FAC, Ex. 4.) Plaintiff moves for summary judgment based solely on the 10-day Notice to Cure or Quit based on Defendant’s failure to provide proof of insurance prior to the Start Date under the Lease Agreement. (FAC, Ex. 4.)
Plaintiff satisfies its burden as moving party
“A tenant of real property, for a term less than life, or the executor or administrator of the tenant's estate heretofore qualified and now acting or hereafter to be qualified and act, is guilty of unlawful detainer:…3. When the tenant continues in possession, in person or by subtenant, after a neglect or failure to perform other conditions or covenants of the lease or agreement under which the property is held, including any covenant not to assign or sublet, than the one for the payment of rent, and three days' notice, excluding Saturdays and Sundays and other judicial holidays, in writing, requiring the performance of those conditions or covenants, or the possession of the property, shall have been served upon the tenant, and if there is a subtenant in actual occupation of the premises, also, upon the subtenant.” (CCP §1161(3).)
Plaintiff establishes that Defendant and Plaintiff entered into a lease agreement that required Defendant to provide certain insurance documents to Plaintiff: “Lessee shall, prior to the Start Date, deliver to Lessor certified copies of policies of such insurance or certificates with copies of the required endorsements evidencing the existence and amounts of the required insurance.” (Kim Dec. ISO Motion for Summary Judgment, Ex. G, Lease Agreement, p. 6, §8.5.)
Plaintiff submits evidence that Defendant took possession of the premises on March 1, 2022, the Start Date under the Lease Agreement. (Kim Dec., ¶11, Ex. G, Lease Agreement, ¶¶1 and 2.2.) Plaintiff submits evidence that Defendant failed to provide certified copies of the required insurance policies or certificates with copies of the required endorsements prior to the Start Date or after expiration of the 10-day Notice to Cure or Quit. (Id. at ¶¶11, 12.)
The Notice to Cure or Quit was served personally on Defendant’s “owner” on April 26, 2023 with 10-days notice to cure, as required under §13.1(d) of the Lease Agreement. (Kim Dec., ¶20.) Defendant was required to submit proof that it was maintaining the following types of insurance: liability insurance carried by tenant, property damage insurance, business interruption insurance, and worker’s compensation insurance. (Kim Dec., ¶12.) Plaintiff establishes that Defendant had until May 10, 2023 to respond to the Notice of Default and provide the requisite proof of insurance under §8.5 of the Lease Agreement. (Id.)
Plaintiff submits evidence that he has never received the required proof of insurance. Plaintiff submits evidence that he has never received a Certificate and Endorsement that show that DZLA, LLC was covered for General Liability Insurance. (Kim Dec., ¶12.) Plaintiff submits evidence that he has only received (1) a Certificate of Liability Insurance dated May 3, 2023 but no Endorsement; (2) a General Liability Endorsement with the named insured being David Zwirner, Inc., who is not Defendant; and (3) a Certificate of Liability Insurance identical to the one dated May 3, 2023 but with the new date of August 29, 2023. (Kim Dec., Exs. H and I.)
Plaintiff submits evidence that, on October 11, 2023, Defendant submitted a Certificate of Commercial General Liability Insurance and an Endorsement listing Defendant as an insured. (Kim Dec., ¶19, Ex. J.) However, there were no certificates of insurance and endorsements establishing the existence of any of the other required types of insurance—Worker’s Compensation, Property Damage and Business Interruption. (Kim Dec., ¶19.) The Certificate of Commercial General Liability Insurance and Endorsement were also submitted after expiration of the 10-day Notice period to cure quit. (Id.) Despite failing to cure Defendant’s breach of §8.5, Defendant remains in possession of the premises (Id. at ¶25.)
Based on this evidence, Plaintiff establishes (1) the existence of a lease agreement with Defendant; (2) Defendant’s obligation under §§8.2 and 8.4 of the lease agreement to maintain commercial general liability insurance, property damage insurance, business interruption insurance and worker’s compensation insurance; (3) Defendant’s obligation under §8.5 of the Lease to provide Plaintiff with copies of the policies or Certificates of Insurance with Endorsements as to each type of required insurance “prior to the Start Date [March 1, 2022]; (4) Defendant failed to comply with §8.5 of the Lease when it did not provide the requisite proofs of insurance; (5) Plaintiff served Defendant with a 10-day Notice to Cure or Quit Defendant’s breach of §8.5 on April 26, 2023; (6) Defendant did not cure the breach by May 10, 2023, the date on which the 10-day period expired; (7) Defendant has still not fully complied with its obligations under §8.5; and (8) Defendant remains in possession of the premises.
Plaintiff’s evidence establishes Defendant’s unlawful detainer of the rental premises pursuant to CCP §1161(3). Plaintiff satisfies its burden as moving party. The burden therefore shifts to Defendant to raise a triable issue of material fact with admissible evidence.
Defendant fails to raise a triable issue of material fact
Pursuant to CRC Rule 3.1351(b), any opposition or reply made be made orally at the hearing. Pursuant to CRC Rule 3.1351(c), 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.
As of April 24, 2024 at 9:00 a.m, Defendant has not filed any opposition to the motion for summary judgment. As such, Defendant failed to raise a triable issue of material fact. Plaintiff’s motion for summary judgment is therefore granted.
Plaintiff’s Supplemental Brief and Evidence
Plaintiff filed a “Supplemental Brief in Support of Motion for Summary Judgment/Adjudication” and a “Supplemental Declaration of Sandy Kim in Support of Plaintiff’s Motion for Summary Judgment/Adjudication.” Pursuant to CCP §437c, Plaintiff was not entitled to file such supplemental briefing and evidence. Plaintiff was only entitled to file a “Reply” to any opposition. (CCP §437c(b)(4).) New evidence is generally not allowed on reply. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) However, a court has discretion to consider new evidence in reply papers in ruling on a summary judgment motion, provided the other party had notice and an opportunity to respond. (Plenger v. Alza Corp. (1992) 11 CA4th 349, 362, 13 CR2d 811, 819, fn. 8; Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 CA5th 438, 449-450.)
Plaintiff indicates in the supplemental brief that it is based on facts discovered after the motion for summary judgment was filed. Plaintiff maintains Defendant’s breach of its obligation to maintain Worker’s Compensation insurance and to provide proof thereof under §§8.4 and 8.5 of the Lease is definitely established by new evidence that Defendant did not obtain Worker’s Compensation Insurance Waiver of Subrogation Endorsement until January 26, 2024, almost a full year after expiration of the 10-day period to cure the breach on May 10, 2023.
Plaintiff’s supplemental brief and evidence raises an entirely new issue that was not presented in the original motion. As such, the Court will not consider the Supplemental Brief or the Supplemental Declaration by Kim.
Conclusion
Plaintiff’s Motion for Summary Judgment is GRANTED.
It is so ordered.
Dated: April 26, 2024
_______________________
Rolf M. Treu
Judge of the Superior Court
Hearing date: April 26, 2024
Moving Party: Plaintiff David H. Kim
Responding Party: None as of April 23, 2024
(1) Motion to Compel Further Responses to Form Interrogatories (Set One)
(2) Motion to Compel Further Responses to Form Interrogatories-Unlawful Detainer (Set One)
(3) Motion to Compel Further Responses to Requests for Production (Set One)
(4) Motion to Compel Further Responses to Form Interrogatories-General (Set Two)
(5) Motion to Compel Attendance and Testimony of David Zwirner
[Plaintiff’s (1) Motion to Compel Further Responses to Form Interrogatories (Set One); (2) Motion to Compel Further Responses to Form Interrogatories-Unlawful Detainer (Set One); (3) Motion to Compel Further Responses to Requests for Production (Set One); (4) Motion to Compel Further Responses to Form Interrogatories-General (Set Two); and (5) Motion to Compel Attendance and Testimony of David Zwirner are MOOT in light of the Court’s ruling granting Plaintiff’s Motion for Summary Judgment.
Hearing
date: April
26, 2024
Moving
Party: Plaintiff
David H. Kim
Responding
Party: None
as of April 23, 2024
Motion
for Judgment on the Pleadings
“Plaintiff’s Motion for Judgment on the
Pleadings is MOOT in light of the Court’s ruling granting Plaintiff’s Motion
for Summary Judgement
It
is so ordered.
Dated:
April 26, 2024
_______________________
Rolf M. Treu
Judge of the
Superior Court
It is so ordered.
Dated: April 26, 2024
_______________________
Rolf M. Treu
Judge of the Superior Court