Judge Stephen P. Pfahler, Case 22CHCV00005 2022-07-25 Tentative Ruling

On
January 4, 2022, Plaintiff Macaria Beltran, trustee of the MCB Trust, filed a
complaint for unlawful detainer based on an alleged breach of a month to month
residential lease agreement in November 2021.

The
court takes judicial notice of the recorded item, but not the content of the
item for purposes of establishing the truth of the matter asserted.

Defendant, Patrick Graham moves for summary judgment on the
unlawful detainer action based on violations of the Tenant Protection Act of
2019. Specifically, Defendant challenges the claimed exemption from Code of
Civil Procedure section 1946.2, subdivision (e)(8). Defendant maintains because
the lease commenced on December 15, 2020, Plaintiff was required to the
specific statutory notice provisions regarding both a notice to cure or quit,
and a subsequent notice to quit without opportunity to cure. Defendant
maintains the flaw in service constitutes a complete defense thereby preventing
unlawful detainer and/or estopping Plaintiff from asserting any right to claim
breach of the lease agreement. Defendant
also challenges Plaintiff’s standing to sue for unlawful detainer.

The court shows no opposition filed prior to the tentative
ruling publication cutoff for the courtroom. Under unlawful detainer rules, the
court reserves the right to consider any filed or oral opposition presented to
the court, and take the matter under submission, if deemed necessary.

The propriety
of granting a motion for summary is subject to the same standards a motion in a
general civil action brought pursuant to Code of Civil Procedure section 437c.
(Code Civ. Proc., § 1170.7.) The law of summary judgment provides courts
“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).) In reviewing a motion for summary judgment,
courts employ a three-step analysis: “(1) identify the issues framed by the
pleadings; (2) determine whether the moving party has negated the opponent’s
claims; and (3) determine whether the opposition has demonstrated the existence
of a triable, material factual issue.” (Hinesley
v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

The pleadings frame
the issues for motions, “since it is those allegations to which the
motion must respond. (Citation.)”
(Scolinos v. Kolts (1995) 37
Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD., v. Cineplex Odeon Corp. (1994) 29
Cal.App.4th 1459, 1472.) “On a motion for summary judgment, the initial
burden is always on the moving party to make a prima facie showing that there
are no triable issues of material fact.” (Scalf
v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant
moving for summary judgment “has met his or her burden of showing that a cause
of action has no merit if the party has shown that one or more elements of the
cause of action . . . cannot be established.”
(Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has
met that burden, the burden shifts to the plaintiff . . . to show that a
triable issue of one or more material facts exists as to the cause of action or
a defense thereto.” (Ibid.)

“When deciding whether to grant summary judgment, the court
must consider all of the evidence set forth in the papers (except evidence to
which the court has sustained an objection), as well as all reasonable
inference that may be drawn form that evidence, in the light most favorable to
the party opposing summary judgment.” (Avivi,
159 Cal.App.4th at 467; see also Code Civ. Proc., § 437c, subd. (c).) “An issue
of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture,
imagination or guesswork.” (Lyons v.
Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation
omitted).)

The action originates from the November 16, 2021 dated
Notice to Perform Conditions and Covenants or Quit, which lists three reasons
for the notice: 1) The operation of a business on the premises in the form of
hosting large gatherings of people on Saturday nights, whereby live and/or loud
music is played and guests are charged admission; 2) Failure to restore and/or
altercation of the gazebo and gate operating system; and, 3) Failure to switch
over utility services to tenants name, thereby leading to charges against the
landlord of $6,462.92. Because the unlawful detainer in no way involves the
non-payment of rent, the court need not consider any potentially applicable
moratorium within the jurisdiction.

The Covid-19 Tenant Relief Act is codified in Code of Civil
Procedure section 1946.2, and provides in relevant part as follows:

(a) Notwithstanding
any other law, after a tenant has continuously and lawfully occupied a
residential real property for 12 months, the owner of the residential real
property shall not terminate the tenancy without just cause, which shall be
stated in the written notice to terminate tenancy. …

(b) For
purposes of this section, “just cause” includes either of the following:

(B) A
breach of a material term of the lease, as described in paragraph (3) of
Section 1161 of the Code of Civil Procedure, including, but not limited to,
violation of a provision of the lease after being issued a written notice to
correct the violation.

(C) Maintaining,
committing, or permitting the maintenance or commission of a nuisance as
described in paragraph (4) of Section 1161 of the Code of Civil Procedure.

(D) Committing
waste as described in paragraph (4) of Section 1161 of the Code of Civil
Procedure.

(c) Before
an owner of residential real property issues a notice to terminate a tenancy
for just cause that is a curable lease violation, the owner shall first give
notice of the violation to the tenant with an opportunity to cure the violation
pursuant to paragraph (3) of Section 1161 of the Code of Civil Procedure. If
the violation is not cured within the time period set forth in the notice, a
three-day notice to quit without an opportunity to cure may thereafter be
served to terminate the tenancy.

(e) This
section shall not apply to the following types of residential real properties
or residential circumstances:

(8) Residential
real property … that is alienable separate from the title to any other dwelling
unit, provided that both of the following apply:

(i) A
real estate investment trust, as defined in Section 856 of the Internal Revenue
Code.

(iii) A
limited liability company in which at least one member is a corporation.

(B) (i) The
tenants have been provided written notice that the residential property is
exempt from this section using the following statement:

“This property is not subject to the rent limits imposed by Section 1947.12 of
the Civil Code and is not subject to the just cause requirements of Section
1946.2 of the Civil Code. This property meets the requirements of Sections
1947.12 (d)(5) and 1946.2 (e)(8) of the Civil Code and the owner is not any of
the following: (1) a real estate investment trust, as defined by Section 856 of
the Internal Revenue Code; (2) a corporation; or (3) a limited liability
company in which at least one member is a corporation.”

…

(ii) (I) Except as provided in subclause (II), for a tenancy
existing before July 1, 2020, the notice required under clause (i) may, but is
not required to, be provided in the rental agreement.

(iii) (I) Except
as provided in subclause (II), for any tenancy commenced or renewed on or after
July 1, 2020, the notice required under clause (i) must be provided in the
rental agreement.

Defendant challenges the claimed exemption based on the
precise language in subdivision (e)(8)(B)(iii). Because the lease was commenced
in December 2020, Defendant contends failed to both comply with the two-step
notice to cure requirement, and the Notice to Cure or Quit lacks a statement
regarding a material breach of a lease term.

It remains undisputed that the lease commenced after the
latest operative period of July 1, 2020 under subdivision (e)(8)(B)(iii). To
the extent the issue of exemption to Code of Civil Procedure 1946.2 determines
whether a landlord must comply with the two step process for the notice to cure
or not, the court first considers the existence of any exception. The Notice to
Perform Conditions and Covenants or Quit both identifies specific sections of
the lease regarding the alleged violations—Paragraph 1B, Paragraph 9, and
Paragraph 18—and provides the required disclosure under subdivision
(e)(8)(B)(i). The lease indicates landlord is Macaria Beltran, Trustee. Nothing
in said description in any way indicates Beltran operates as a real estate
trust, corporation, or limited liability company. The court therefore finds the
exemption language applies on this basis. The court therefore denies the motion
for summary judgment on the basis of the failure to improperly comply with the
two step notice to cure requirement under Code of Civil Procedure 1946.2, due
to compliance with the applicable exemption and proper identification of the
breach violations specifically incorporated into the lease.[1]

Defendant next challenges standing of Plaintiff, due to an
alleged quitclaim deed whereby title was transferred from an entity identified
as MCB Trust to Macaria Beltran. Preliminary, the court declines to take
judicial notice of the content of the quitclaim deed for purposes of
establishing the truth of the matter asserted in the deed. (Poseidon Development, Inc. v.
Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) Defendant could
have sought to introduce the trust deed via evidentiary admission, but instead
elected to move for judicial notice. The motion is therefore denied on the
basis of insufficient evidentiary support.

Even considering the content of the quitclaim deed, nothing
in the points and authorities in any way supports the argument that the
transfer of the property from the trust to Macaria Beltran, an individual, in
anyway renders the owner the property without standing to evict a tenant in
violation of a lease term. The court declines to consider unsupported
arguments, and denies the motion for summary judgment on this basis as well.

Because the court finds that Defendant fails to present a
complete defense, the court denies the motion on the argument for waiver and/or
estoppel.

Furthermore, nothing in the habitability complaints
presented in the declaration, or supplemental declaration, of Patrick Graham in
any way excuses the breach of the lease for purposes of proceeding with the
unlawful detainer action. Habitability is in no way at issue in the subject
motion. Plaintiff is not seeking unlawful detainer on the basis of rent, and nothing
in the motion establishes that habitability is a complete defense to the breach
of lease claims.[2]

The motion for summary judgment is therefore denied in its
entirety. The trial remains set for August 8, 2022. Defendant may raise any and
all habitability issues at trial in response to the arguments for rental
deficiency, but not possession.

[1]The
discovery exchanged and attached to the declaration of Sitora Reznikov
reaffirms the articulated claims of the breached lease terms.

[2]The court
declines to consider the unmarked exhibits attached to the motion, including
utility bills, mobile phone text messages, and e-mail.