Judge: Virginia Keeny, Case: 22VECV00777, Date: 2022-09-02 Tentative Ruling
Case Number: 22VECV00777 Hearing Date: September 2, 2022 Dept: W
VEDRES FAMILY
INvestment partnership, lp v. Payam marouni md., Inc.
pLAINTIFF VERDRES
FAMILY INVESTMENT PARTNERSHIP, LP’s MOTION FOR SUMMARY JUDGMENT
Date of Hearing: September
2, 2022 Trial
Date: September 6, 2022
Department: W Case
No.: 22VECV00777
Moving Party: Plaintiff
Verdres Family Investment Partnership, LP.
Responding Party:
BACKGROUND
This
is an unlawful detainer action of the property located at 13750 Victory Blvd., Van Nuys, CA 91401, Los Angeles County,
owned by Plaintiff. The Complaint alleges in relevant part that Defendant
entered into a lease with Plaintiff to rent the subject property. Defendant
breached the lease by failing to pay rent and had remained in possession of the
premises after the expiration of Defendant’s Lease Agreement.
Plaintiff filed a Complaint
on June 8, 2022, alleging a cause of action for:
1. Unlawful Detainer
Plaintiff
Verdres Family Investment, LP now moves for summary judgment against Defendant
Payam Marouni, M.D., Inc. This motion is made on the ground that there are no
triable issues of material fact, and that the plaintiff is entitled to judgment
as a matter of law. No opposition has been filed.
[Tentative] Ruling
1. Plaintiff Vedres Family Investment Partnership, LP’s Motion
for Summary Judgment is DENIED.
ANALYSIS
This
instant motion is brought on the grounds that there exists no material issue of
fact as to the unlawful detainer cause of action as there are issues of
possession of the premises and the issue of monetary damages.
Code of Civil Procedure section 1170.7 governs motions
for summary judgment in unlawful detainer cases and provides that such a motion
“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.”
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. Atl. Richfield Co. (2001) 25
Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c),
requires the trial judge to grant summary judgment if all the evidence
submitted, and ‘all inferences reasonably deducible from the evidence’ and
uncontradicted by other inferences or evidence, show that there is no triable
issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.)
“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.) “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 inferences that may be drawn from that evidence, in the light
most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th
463, 467; see also CCP § 437c(c).)
“If it appears from the affidavits
submitted in opposition to a motion for summary judgment or summary
adjudication, or both, that facts essential to justify opposition may exist but
cannot, for reasons stated, be present, the court shall deny the motion, order
a continuance to permit affidavits to be obtained or discovery to be had, or
make any other order as may be just.”
(CCP § 437c(h).)
Discussion
Unlawful
Detainer
Plaintiff specifically argues that
there exists no material issue of fact as Plaintiff must have a right to seek
possession of the subject premises. Plaintiff argues that there exists a fixed
term written commercial lease, and the fixed term lease period has expired, and
Defendant remains in possession of the subject premises. Plaintiff argues that
Defendant’s Answer does not contest or challenge with any facts the lease, the
lease terms, the amendment, nor the expiration term on August 31, 2021.
“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.” (Id.)
The Plaintiff establishes
through evidence, the following. The declaration of Jock Ebner and Plaintiff’s
Separate Statement of Undisputed Facts established the same evidence. Plaintiff
presents the declaration of Jock Ebner, the property management agent for the
subject property located at 13750 Victory Blvd., Van Nuys, CA 91401. Ebner attests that the Premises were rented
by Plaintiff's predecessor in interest, T &R Properties, to Defendant,
PAYAM MAROUNI MD, INC., a California corporation, pursuant to a written standard
Industrial/Commercial Single-Tenant Lease - Gross dated May 7, 2012. (Id. ¶ 2.)
The initial lease term was for six (6) years and three (3) 6 months commencing June
1, 2012, and ending on August 31, 2018. (Ebner Decl. ¶ 2.) In June 2017,
Plaintiff and Defendant, PAYAM MAROON MD, INC., a California corporation,
entered into and executed a document entitled SECOND AMENDMENT TO LEASE /
OPTION TO EXTEND. (Id. ¶ 3.) Said Second Amendment To Lease, stated that PAYAM
MAROUN! MD, INC., a California corporation, exercised its option and the lease term was extended
through August 31, 2021 (Id. ¶ 3.) Ebner
attests that the fixed term of the commercial lease August 31, 2021, and there
has been no written extension of the lease beyond that date. (Id. ¶ 5.) Defendant Payam Marouni, M.D. Inc. failed to
vacate the subject premises and remains in possession of the subject premises
as of this date. (Id. ¶ 5.) Ebner
attests that no rent has been accepted by Plaintiff after August 31, 2021, and
Defendant has paid no rent after August 31, 2021. (Id. ¶ 6.) The monthly rent (as defined in
the lease) on 8/31/2021 was $7,950.00. The daily rental value of the premis.es
is $265.00/day and is calculated by taking the monthly lease rent and dividing
by 30 days. (Id. ¶ 7.)
Here, as set forth above,
Plaintiff has provided evidence that (1) Defendant is in possession of the
Property, (2) Defendant is in possession without permission as there was no
written extension of the lease term beyond August 31, 2021, (3) Defendant is in default for failure to perform
pursuant to the terms of the lease and (5) Defendant has failed to vacate
subject premises and remains in possession of the subject premises as of this
date.
The Court finds, however, that
Plaintiff has failed to discuss whether it provided Defendant with a three-day notice
and whether after Defendant received that notice, Defendant continued to occupy
the subject property. Plaintiff provides in its undisputed material facts that
the lease was amended by a Second Amendment Lease, which extended the lease
term through August 31, 2021, however, Plaintiff fails to show that Defendant
was provided with a three-day notice or a notice of any sort. Furthermore,
Plaintiff attaches the Standard Industrial/Commercial Sing-Tenant Lease,
however, Plaintiff arguments are silent as to what action can be taken after a tenant
has breached its duties under the agreement to determine whether sufficient
notice was proper.
The
relevant part, Section 13.1(b), of the Lease Agreement provides:
“The failure of Lessee to make any
payment of Rent or any Security Deposit required to be made by Lessee
hereunder, whether to Lessor or to a third party, when due, to provide reasonable
evidence of insurance or surety bond, or to fulfill any obligation under this
Lease which endangers or threatens life or property, where such failure
continues for a period of 3 business days following written notice to Lessee.
THE ACCEPTANCE BY LESSOR OF A PARTIAL PAYMENT OF RENT OR SECURITY DEPOSIT SHALL
NOT CONSTITUTE A WAIVER OF ANY OF LESSOR'S RIGHTS, INCLUDING LESSOR'S RIGHT TO RECOVER
POSSESSION OF THE PREMISES.”
Given that the Lease Agreement
provides that a notice must be given, and Plaintiff has failed to provide
evidence that any notice was given, the elements of unlawful detainer has not
been proven. Since there
are triable issues as to whether Plaintiff gave defendant a three-day notice
pursuant to Code of Civil Procedure 1174 or notice of any sort, aside from the
lease agreement, the Plaintiff has failed to shift the
burden to Defendant to establish a there is not triable issue of fact as to the
unlawful detainer cause of action.
The Motion for Summary Judgment is
DENIED.
CONCLUSION
Plaintiff
Vedres Family Investment Partnership, LP’s Motion for Summary Judgment is
DENIED.