I. BACKGROUND 

On April 15, 2024, plaintiff Weingarten Nostat, LLC (“Plaintiff”) filed this unlawful detainer action against defendants Angela Song (“Defendant”) and Does 1 to 10 for possession of commercial property located at 8000 Sunset Blvd., Suite A120, Los Angeles, CA, 90046 (the “Subject Property”) pursuant to a written lease agreement (“Lease”). 

On May 3, 2024, Defendant filed her Answer to the complaint. 

On July 26, 2024, Plaintiff filed the instant motion summary judgment on its commercial unlawful detainer action, or in the alternative, for summary adjudication on Defendant’s affirmative defenses.  

On August 9, 2024, Defendant filed an opposition to the motion. No reply has been filed to date. 

II. LEGAL STANDARD 

In an unlawful detainer proceeding, 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."¿(Code Civ. Proc., § 1170.7.) 

The purpose of a motion for 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 (Aguilar); Code Civ. Proc., § 437c (c).)¿ A plaintiff reaches its burden on summary judgment by showing prima facie evidence for each element of its cause of action.¿ Code Civ. Proc, § 437c (p); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519 (Scalf).¿ The burden will then shift to the defendant to show the existence of a triable issue of material fact for at least one element of the cause of action at issue.¿(Ibid.) 

Courts “liberally construe the evidence in support of the party opposing summary judgment or summary adjudication and resolve doubts concerning the evidence in favor of that party.”¿(Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)¿However, if all inferences reasonably deducible from the submitted evidence are uncontradicted by other inferences and there is no triable issue as to any material fact, the moving party is entitled to summary adjudication as a matter of law.¿(Code Civ. Proc., § 437c (c); Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) 

III. EVIDENTIARY OBJECTIONS 

Defendant submits objections to the declaration of Matthew Johnson. Defendant’s objections to paragraphs 2, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25 of the declaration are OVERRULED.   

IV. DISCUSSION 

Plaintiff moves for summary judgment on its commercial unlawful detainer action against Defendant due to non-payment of rent pursuant to a written lease agreement. Plaintiff argues there is no triable issue of material fact that Defendant owes Plaintiff past due rent, that Defendant continues to occupy the premises, and that Plaintiff served a three-day notice to pay rent or quit and surrender the premises.  

“The basic elements of unlawful detainer for nonpayment of rent contained in Code of Civil Procedure section 1161, subdivision (2), are (1) the tenant is in possession of the premises; (2) that possession is without permission; (3) the tenant is in default for nonpayment of rent; (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 (internal citations omitted).) “The failure of the tenant to pay rent does not ipso facto work a forfeiture of the leasehold; it merely gives the lessor the right to terminate the lease in the manner provided by law...[.]’ The essential element, therefore, is the notice and whether or not it comports with the fundamental requirements of the law.” (Ibid.)¿ 

Plaintiff avers that Kimco Realty Corporation (“Kimco”) is its property manager and that it provides property management services for the Subject Property. Matthew Johnson (“Johnson”), a Senior Regional Director of Property Management at Kimco, declares that Plaintiff is the owner of the Subject Property, which is a commercial shopping center. (Decl. Johnson ¶¶1-2.) Johnson’s responsibilities as property manager include administration of the written lease between Plaintiff as landlord and Defendant as the tenant, in which Defendant operates a restaurant on the premises. (Id. ¶ 3.) Johnson has reviewed Plaintiff’s books and records pertaining to Defendant’s tenancy, including the tenant ledger reflecting all amounts due by Defendant to Plaintiff pursuant to the lease, and whether the amounts had been paid. (Id. ¶ 4.) On September 4, 2020, Weingarten Nostat, Inc., a predecessor to Plaintiff Weingarten Nostat, LLC, entered into a 10-year term Lease with George Jamil Shalhoub and Suhad Shalhoub (“Prior Tenants”) for the leased premises of 800 Sunset Blvd., Suite A120, Los Angeles, CA 90046 (the “Premises”), to expire on February 1, 2031. (Id.¶¶5, 10; Exh. 1.) On October 19, 2020, Weingarten Nostat, Inc. and the Prior Tenants executed a First Amendment to the Lease. (Id ¶ 6, Exh. 2.) On December 30, 2022, the Prior Tenants assigned the Lease, as amended, to Defendant pursuant to the Assignment, Assumption and Second Amendment of Lease (the “Assignment”). (Id. ¶ 7; Exh. 3.) Plaintiff has been in possession of the Premises since the time of the Assignment. (Id. ¶ 8.) In March 2023, Weingarten Nostat, Inc. converted to a limited liability company. (Id. ¶ 9; Exhs. 4-5.)  

Pursuant to the Lease, Defendant was required to pay Minimum Rent of $11,971.78 per month for Lease Year 3 (i.e., February 2023 through January 2024), and $12,330.03 per month for Lease Year 4 (i.e., February 2024 through January 2025). (Id. ¶ 11.) Additionally, Defendant was required to pay Additional Charges” consisting of a “Common Area Payment” ($2,980.22 per month); an “Insurance Payment” ($244.25 per month); and a “Tax Payment” ($1,662.58 per month). (Id. ¶ 12.) Pursuant to Article IV, Section 4.03 of the Lease, the amounts owed under the Lease, including Minimum Rent, Additional Charges and any other amounts owed, are defined as “Rent”. (Id. ¶ 13.) Defendant has not paid any Rent with available funds for any month from September 2023 to the present. (Id. ¶ 14.) Defendant’s checks to Plaintiff for “Rent” for the months of September, October, November and December 2023 were returned for non-sufficient funds. (Ibid.) On November 22, 2024, Plaintiff served a Notice of Default on Defendant requesting amounts due under the Lease. (Id. ¶ 19; Exh. 6.) On February 20, 2024, Plaintiff served a second Notice of Default on Defendant. (Id. ¶ 20; Exh. 7.) After having not paid Rent following two Notices of Default, Plaintiff’s counsel served Defendant a Three Day Notice to Pay Notice to Pay Rent or Quit and Surrender Possession of Premises. (Id. ¶ 21; Peterson Decl. ¶¶ 2-3; Exhs. 1-4.) The ledger reflects an outstanding Rent balance of $168,501.19 from September 2023 to July 2024. (Johnson Decl. ¶¶ 17-18.) 

Plaintiff has met its prima facie burden that Defendant is in possession of the Premises, that she is in default for nonpayment of rent, that she has been properly served with a written three-day notice, and that she has continued to remain in default after the three-day notice period elapsed. (Code Civ. Proc., § 1166.) Further, the Court finds that Plaintiff has met its burden proving the amount of rent in default. (Code Civ. Proc., §§ 1166, 1161 (2).) The burden therefore shifts to Defendant to raise a triable issue of material fact as to Plaintiff’s evidence supporting each element of the action. 

In opposition, Defendant first argues that Plaintiff has not met its prima facie burden because Johnson’s declaration and the evidence provided lacks foundation. Defendant’s objections on these grounds were overruled, as provided above. Defendant’s second argument is that Plaintiff has not met its burden that the three-day notice was reasonably estimated within the range of 20% accuracy. Here, the Three Day Notice stated that Plaintiff owed $82,665.93 in Rent to Plaintiff as of March 7, 2024, which Plaintiff asserts is within 20% of the $82,411.29 that was due between September 2023 through February 2024. (Peterson Decl., Exh. 1.) It is therefore Defendant’s burden to rebut the presumption that the amount due was not reasonably estimated. (DT-Winchester v. Nilsson (1994) 27 Cal. App. 4th 516, 531.) "[T]here is a presumption affecting the burden of proof that the amount of rent claimed or tendered is reasonably estimated if, in relation to the amount determined to be due upon the trial or other judicial determination of that issue, the amount claimed or tendered was no more than 20 percent more or less than the amount determined to be due.” (Levitz Furniture Co. v. Wingtip Commc'ns, Inc. (2001) 86 Cal. App. 4th 1035, 1039.) Defendant has not rebutted the presumption that the amount was reasonably estimated. Aside from attacking Johnson’s foundation and making general arguments as to why Defendant was entitled to not pay rent, Defendant otherwise does not dispute the amount of Rent in default as calculated by Plaintiff.  

Plaintiff argues Defendant’s affirmative defenses of 1) breach of implied duty of quiet enjoyment, (2) defective notice to quit for an inaccurate amount stated in the three-day notice or setoff, and (3) retaliatory eviction, lack legal and evidentiary support, and that there are no triable issues of fact as to the defenses. 

Unlawful detainer actions are summary in nature and ordinarily only address the issue of immediate possession of property. (Borsuk v. Appellate Division of Superior Court (2015) 242 Cal.App.4th 607, 609, fn. 1; Culver Center Partners East # 1, L.P. v. Baja Fresh Westlake Village, Inc. (2010) 185 Cal.App.4th 744, 749.) Thus, in unlawful detainer actions, “tenants generally may assert legal or equitable defenses that ‘directly relate to the issue of possession and which, if established, would result in the tenant's retention of the premises.’” (Drouet v. Superior Court (2003) 31 Cal.4th 583, 587.) Cross-complaints, counter-claims, and affirmative defenses generally are not permitted, unless success on the claim would preclude removal of the tenant. (Vella v. Hudgins (1977) 20 Cal.3d 251, 255; Green v. Superior Court of San Francisco (1974) 10 Cal.3d 616, 634, fn. 19.) 

“Thus purpose of the unlawful detainer statutes is to provide the landlord with a summary, expeditious way of getting back his property when a tenant fails to pay the rent or refuses to vacate the premises at the end of his tenancy. If a defendant were allowed to assert affirmative defenses or cross-claims which were irrelevant to the right of immediate possession, the summary character of the proceedings would be lost. A defense which ‘arises out of the subject matter’ of the original suit, and, thus, is permitted in the usual case, is normally excluded in an unlawful detainer if the defense is extrinsic to the issue of possession [Citation]. This does not mean the defendant may not present any defense; rather, he may only assert those defenses which, if proven, would either preserve his possession as a tenant or preclude the landlord from recovering possession [Citation].” (Nork v. Pacific Coast Medical Enterprises, Inc. (1977) 73 Cal.App.3d 410, 413.) 

An assigned lease carries with it, even in absence of special covenant for quiet enjoyment, an implied covenant binding upon lessors during the continuation of the term, and this covenant means that a tenant shall not be wrongfully disturbed in his possession by the lessor. (Pierce v. Nash (1954) 126 Cal. App. 2d 606, 612.) However, “the covenant of quiet enjoyment can be modified or waived by the tenant in a commercial lease setting.” (Lee v. Placer Title Co. (1994) 28 Cal. App. 4th 503, 513.) 

 Plaintiff argues this affirmative defense cannot be maintained, because it is only available if the defendant is no longer in possession of the property and that the defense is not available under the Lease. Plaintiff asserts the Lease provides that Defendant may quietly enjoy the Premises provided she pay Rent without abatement or offset. 

Indeed, “the covenant of quiet enjoyment is not broken until there has been an actual or constructive eviction [Citations]; an actual eviction takes place when the tenant is physically dispossessed of the property; a constructive eviction occurs when the act of molestation merely affects the beneficial use of the property, causing the tenant to vacate the premises.” (Petroleum Collections Inc. v. Swords (1975) 48 Cal. App. 3d 841, 847.) Defendant does not dispute that she remains in possession of the Premises. Rather, Defendant argues that vacating the Premises is not required, in reliance upon Guntert v. City of Stockton (1975) 55 Cal.App.3d 131. In Guntert, plaintiff Guntert did not surrender possession of the leased premises, and instead sued for damages for breach of quiet enjoyment. The analysis and subsequent case law cited in Guntert pertain to upholding a tenant’s claim for recovery of damages for breach of the covenant of quiet possession against the landlord. Here, at issue is Plaintiff’s unlawful detainer action against Defendant and related affirmative defenses that may affect Plaintiff’s right to immediate possession of the property, not Defendant’s right to stand upon the Lease and separately sue Plaintiff for damages. Whether Defendant separately may obtain money damages against Plaintiff for wrongful eviction or for breach of contract, as in Guntert, is not the issue at hand. 

Additionally, Defendant does not address Plaintiff’s contention that Section 3.04 of the Lease provides that “Landlord covenants that Tenant, upon paying All Minimum Rent and other charges due Under this Lease….shall peacefully and quietly have, hold, and enjoy the Leased Premises and the appurtenances thereto throughout the Lease Term without hindrance, ejection or molestation by Landlord.” (Johnson Decl.; Exh. 1.) Defendant argues generally that there were false fire alarms and interruptions that caused the gas to turn off, which negatively impacted Defendant’s fried chicken business. In support thereof, Defendant relies on a declaration entitled “Declaration of Angela Song.” The Court notes that although it is titled “Declaration of Angela Song” and signed by Defendant, the declaration states that “Kevin Song” is the declarant. (Decl. Song, p.2, line 1.) There is no explanation as to who “Kevin Song” is, and his relation to this action. The Court will not consider a defective declaration made by “Kevin Song” but signed by “Angela Song”.  

Secondly, the Court notes that Defendant generally refers to Exhibits contained in the Song Declaration, which amount to a little over 500 pages of documents; the failure to specify which particular facts or portions are material, combined with the sheer amount of “evidence” provided, overly burdens this Court to hunt for information. “Courts are entitled to assistance from counsel, and an invitation to search without guidance is no more useful than a litigant's request to a district court at the summary judgment stage to paw through the assembled discovery material. “Judges are not like pigs, hunting for truffles buried in” the record. [Citation]." (Albrechtsen v. Bd. of Regents of Univ. of Wisconsin Sys. (2002) 309 F.3d 433, 436.) The Court will not search for any unhighlighted facts and evidence to support or supplement Defendant’s general factual assertions made in the opposing brief. 

Accordingly, there is no triable issue of material fact as to the affirmative defense for breach of the implied duty of quiet enjoyment. 

According to Defendant’s responses to written discovery, it is Defendant’s contention that the amount stated in the Three Day Notice was inaccurate because the Rent owed was not reduced by Defendant’s claimed damages in the civil action. Defendant alleges that the false alarm issues interrupted her business and caused a loss of income of over $700,000, business reputation of about $500,00, and business value of about $1,000,000. (Peterson Decl.; Exhs. 7-8.) Plaintiff contends Defendant cannot offset her alleged damages against the amount of past-due rent under the lease, and that her obligation to pay rent is independent of the landlord’s obligations. Defendant fails to address this argument regarding offset in her opposition. For arguments concerning defective notice based on the amount, the Court refers to the analysis above. A citation to “Exhibits 3, 5, 8, 10, and 11,” without any further analysis or description, is not helpful to the Court.  

Accordingly, Defendant has not demonstrated a triable issue of material fact in this regard. 

Retaliatory eviction occurs ““When a landlord exercises his legal right to terminate a residential tenancy in an authorized manner, but with the motive of retaliating against a tenant who is not in default but has exercised his legal right to obtain compliance with requirements of habitability. . . .”” (Four Seas Inv. Corp. v. Int'l Hotel Tenants' Assn. (1978) 81 Cal. App. 3d 604, 610, citing to 3 Witkin, Summary of Cal. Law (8th ed. 1973).) “[M]otive is ordinarily a factual issue to be resolved by the trier of fact, but such an issue cannot be submitted to the jury unless substantial evidence appears in the record to support it.” (Ibid.)