TENTATIVE RULING

Calendar: 7

Date: 8/26/22

Case Number: 22 GDCV00310 Trial date: None Set  

Case Name: Glendale I Mall Associates, LP v. Golden Canyon, Inc.    

MOTION FOR SUMMARY JUDGMENT

Moving Party: Plaintiff Glendale I Mall Associates, LP    

Responding Party: Defendants Christopher Y. Kim, Gina S. Park and Eva Cheong (No Opposition) 

Relief Requested:

Summary judgment on plaintiff Glendale I Mall Associates, LP’s verified complaint for unlawful detainer.    

Causes of Action from Complaint 

1)  Unlawful Detainer 

2)  Unlawful Detainer 

SUMMARY OF COMPLAINT:

This is an unlawful detainer action brought by plaintiff Glendale I Mall Associates, LP, alleging that it is the landlord under a lease of certain real commercial property which is part of the Glendale Galleria.

The complaint alleges that in October of 2017, plaintiff conveyed to tenant, defendant Golden Canyon, Inc. doing business as “Street Corner,” a leasehold interest in the subject premises with a term of approximately eight years.   Plaintiff alleges that tenant has breached the lease by failing to pay rent and has failed to bring its rent current despite being notified in writing that it had defaulted.  The complaint alleges that plaintiff has served tenant with a statutory Ten-Day Notice to Pay Rent or Quit for rent that was unpaid after February 1, 2022, but tenant failed to comply with the required notice by the designated date and is unlawfully detaining the premises.  

Plaintiff brings a second cause of action for unlawful detainer for rent unpaid from June 2021 through January 2022, based on defendant’s failure to timely comply with a separate statutory Ten Day Notice to Pay Rent or Quit.  

The complaint seeks possession of the premises, cost and attorney’s fees, rent in the sum of $41,027.889 (sic) that came due on and after February 1, 2022, rent in the sum of $89,225.53 for rent that came due on and after June 1, 2021 through January 2022, damages at the rate of $342 per day for each day tenant continues to occupy the premises after June 6, 2022 until the date of judgment, and forfeiture of the lease.

The file shows that three individuals who were not named as defendants, Christopher Y. Kim, Gina S. Park and Eva Cheong, have each filed a Prejudgment Claim of Right to Possession, claiming that they occupied the premises on the date the complaint was filed and stating that they understand that by making the claim for possession, they will be added as defendants to the unlawful detainer action.  The three defendants also each filed an answer to the complaint.   

On July 11, 2022, plaintiff filed a Request for Entry of Default of the named defendant, tenant Golden Canyon, Inc., and default was entered as requested the same date. 

On July 28, 2022, the court granted plaintiff’s ex parte application to advance the hearing on its motion for summary judgment and set the matter for hearing this date.  

ANALYSIS:

Procedural

Opposition

This is an unlawful detainer action.  Under CCP section 1170.7, in such an action:

“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.” 

Under CRC Rule 3.1351, governing motions for summary judgment in unlawful detainer actions, “Any opposition to the motion and any reply to an opposition may be made orally at the time of the hearing or in writing as set forth in (c).”  

Under subdivision (c) where 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.”  

No opposition has yet been filed with the court.  

Default

As noted above, the file shows, and the motion concedes, that defendant tenant Golden Canyon has defaulted.  The default was entered on July 11, 2022, before this motion was filed.  The moving papers nevertheless request that summary judgment be entered against the tenant for possession of the property, for rent in the sums sought in the complaint, damages for each day tenant continues to occupy the premises, and forfeiture of the lease. 

Entry of defendant’s default cuts off its right to appear in the action, and it has no right to participate in proceedings until its default is set aside, or judgment is entered, in which case, it may appeal.  Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 386-387.  Entry of default is held to oust the court of jurisdiction to consider any motion other than a motion for relief from default.   W.A. Rose Co. v. Municipal Court (1959) 176 Cal.App. 2d 67, 71.

The default has not been set aside.  As set forth above, CRC Rule 3.1351, governing motions for summary judgment in unlawful detainer actions expressly permits opposition to be made to the motion, either orally at the hearing or in writing.  Since defendant is in default, it would be deprived of the opportunity to oppose the entry of summary judgment.  The court under the circumstances, cannot consider the motion as to the defaulted defendant Golden Canyon, Inc.  Plaintiff may proceed to pursue a default judgment against this defendant.  

Substantive

Under CCP § 437(o) a plaintiff “has met his...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 that cause of action.  Once the plaintiff... has met that burden, the burden shifts to the defendant... to show that a triable issue of one or more material facts exist as to that cause of action or a defense thereto.”

The motion seeks summary judgment against the individual defendants, which plaintiff refers to as the Unknown Occupants, for possession of the premises, costs and attorney’s fees, damages at the rate of $342 per day for each day the Unknown Occupants continue to occupy the premises after June 6, 2022, until the date of Judgment, and forfeiture of the lease.   The motion seeks summary judgment against all occupants, known or unknown, for possession of the premises. 

CCP Section 1161 defines unlawful detainer to include the following:

“A tenant of real property, for a term less than life, or the executor or

administrator of his or her estate heretofore qualified and now acting or

hereafter to be qualified and act, is guilty of unlawful detainer:...

“2. When he or she continues in possession, in person or by subtenant, without the permission of his or her landlord, or the successor in estate of his or her landlord, if applicable, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days' notice, in writing, requiring its payment, stating the amount which is due, the name, telephone number, and address of the person to whom the rent payment shall be made, and, if payment may be made personally, the usual days and hours that person will be available to receive the payment (provided that, if the address does not allow for personal delivery, then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed received by the owner on the date posted, if the tenant can show proof of mailing to the name and address provided by the owner), or the number of an account in a financial institution into which the rental payment may be made, and the name and street address of the institution (provided that the institution is located within five miles of the rental property), or if an electronic funds transfer procedure has been previously established, that payment may be made pursuant to that procedure, or possession of the property, shall have been served upon him or her and if there is a subtenant in actual occupation of the premises, also upon the subtenant.”

The moving papers argue that the Unknown Occupants are not parties to the lease, but filed Prejudgment Claims of Right to Possession, so are now defendants.  [Byrne Decl., para. 2, Ex. B].  Plaintiff indicates that its management has never heard of any of these individuals.  [Byrne Decl., para. 2].  

Plaintiff argues that each of these defendants has filed a verified answer to the verified complaint, admitting every allegation in the verified complaint.  [Byrne Decl., para. 2, Exs. A, D, E, and F].  Each of the Prejudgment Claims state, under penalty of perjury, that the individual declarant, “occupied the premises on the date the complaint was filed.  I have continued to occupy the premises ever since.”  [Prejudgment Claims, paras. 5].  The date designated as the date of filing of complaint is “6/13/2022.”  [Prejudgment Claims, paras. 4].   

Each of the Answers is submitted on the “Answer—Unlawful Detainer” form, and check the box, “Specific Denials,” which states, “Defendant admits that all of the statements of the complaint…are true EXCEPT:” [Answers, paras. 2(b)].  No statements are designated as being false.  [Id.]

Plaintiff argues that these answers accordingly admit every allegation in the verified complaint, and that such admissions are binding. See Valerio v. Andrew Youngquist Construction (2002)103 Cal.App.4th 1264, 1271 (“When allegations in a complaint are admitted by the answer (a) no evidence need be offered in their support; (b) evidence is not admissible to prove their untruth; (c) no finding thereon is necessary; (d) a finding contrary thereto is error.” (quotation omitted)).  

It would appear from the admissions and the complaint, that the Unknown Occupant defendants have accordingly conclusively admitted that the tenant failed to provide the necessary notices to invoke Covid-19 protections, defaulted in the payment of rent, was served with appropriate notices, failed to comply with the notices within the times permitted, and that plaintiff is entitled to possession of the premises.  [See Complaint, paras. 2-13, 15-29, 31-40].  This showing appears sufficient to shift the burden on the issue of unlawful detainer and plaintiff’s right to possession to defendants to raise triable issues of material fact, or to establish a defense.  Defendants have failed to oppose the motion, so have failed to meet that burden.  

However, as noted above, plaintiff also seeks damages for the days the Unknown Occupant defendants have remained in possession, and forfeiture of the lease. 

The moving papers seek “Damages at the rate of $342 per day for each day the Unknown Occupants continue to occupy the Premises after June 6, 2022, until the date of Judgment.”   [Motion, p. 10:14-16].  There is no showing offered by plaintiff concerning why the date of June 6, 2022 triggers the damages, and nothing in the verified complaint concerning such a date which is admitted by the Answers.  

Damages are evidently sought pursuant to CCP § 1174(b), which provides, in connection with unlawful detainer judgments:

“(b) The jury or the court, if the proceedings be tried without a jury, shall also assess the damages occasioned to the plaintiff by any forcible entry, or by any forcible or unlawful detainer, alleged in the complaint and proved on the trial, and find the amount of any rent due, if the alleged unlawful detainer be after default in the payment of rent. If the defendant is found guilty of forcible entry, or forcible or unlawful detainer, and malice is shown, the plaintiff may be awarded statutory damages of up to six hundred dollars ($600), in addition to actual damages, including rent found due. The trier of fact shall determine whether actual damages, statutory damages, or both, shall be awarded, and judgment shall be entered accordingly.”

While the Unknown Occupants have indicated in their Prejudgment Claims that they occupied the premises from June 13, 2022, there is no admission concerning the period from June 6, 2022 to June 12, 2022.  Without any evidence supporting the prayer by plaintiff for these damages in the entire sum sought, triable issues of fact remain, the court will not grant summary judgment in favor of plaintiff for these damages against the Unknown Occupants.  

Similarly, the moving papers seek forfeiture of the lease, but plaintiff has argued that the Unknown Occupants are not parties to the Lease.   The Lease does not mention any tenant or party other than plaintiff and defendant Golden Canyon.  [Complaint, Ex. A].  Plaintiff has made no argument explaining how these non-parties to the Lease would have standing to admit a forfeiture of a Lease.   The court accordinglydoes not grant summary judgment in favor of plaintiff for forfeiture of the lease against these defendants.   

The court will hear legal argument with respect to whether plaintiff is inclined to withdraw its requests for relief against these defendants other than summary judgment for possession of the premises. 

With respect to the request for costs and fees, those will not be summarily awarded, but are to be recovered by memorandum of costs and noticed motion, if appropriate. 

TENTATIVE RULING:

CCP 437c(g):  Material facts which do or do not create a triable issue of controversy:

[No Opposition]

Plaintiff’s Motion for Summary Judgment is NOT CONSIDERED BY THE COURT to the extent it seeks summary judgment against defendant Golden Canyon, Inc., which is in default.    

Plaintiff’s Motion for Summary Judgment is DENIED as to the Unknown Occupant Defendants, as plaintiff has failed to submit sufficient evidence supporting its claim for damages and forfeiture of the lease as to these defendants.  

Or, ONLY if plaintiff is inclined to withdraw request for summary judgment against the Unknown Occupant Defendants for damages and forfeiture of the lease.

UNOPPOSED Motion for Summary Judgment is GRANTED only as to defendants Christopher Y. Kim, Gina S. Park and Eva Cheong, and only as to the issue of restitution and possession of the premises.  Plaintiff has met its burden of establishing each element of its Unlawful Detainer action sufficient to shift the burden to defendants to raise triable issues.  [Byrne Decl., paras. 1, 2, Exs. A-F; Prejudgment Claims, paras. 4, 5; Answers, paras. 2(b); Verified Complaint, paras. paras. 2-13, 15-29, 31-40]. 

Defendants have failed to raise triable issues.   Summary judgment is granted in favor of plaintiff Glendale I Mall Associates, LP and against defendants Christopher Y. Kim, Gina S. Park and Eva Cheong for restitution and possession of the subject premises. 

Costs are to be sought through a properly filed and served memorandum of costs and any attorney’s fees are to be pursued by noticed motion.

GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.