Judge William A. Crowfoot, Case Number: 23AHCV00647, Date: 2023-09-15 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV00647, Date: 2023-09-15 Tentative Ruling

This is an unlawful detainer action concerning the property at 399 E. Green St., Pasadena, California (the “Property”), and located on the shopping center commonly known as 280 East Colorado Blvd., Pasadena, California (the “Shopping Center”). Plaintiff Onni Paseo LLC (“Onni Paseo”) alleges that defendant Paseo Pasadena Hotel Investment, LLC (“Tenant”) is improperly in possession of the premises. On August 31, 2023, Onni Paseo filed this motion for summary judgment.

A “motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (C.C.P., § 437c(c).) Once the moving party has met its burden of demonstrating that there is no triable issue as to any material fact, the opposing party cannot rest upon the mere allegations of the pleadings but must present admissible evidence showing that there is a genuine issue for trial. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 844.) “In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom… and must view such evidence… in the light most favorable to the opposing party.” (Id. at 844-845; C.C.P., § 437c(p)(2).)

A moving plaintiff meets their burden on summary judgment by proving each element entitling the party to judgment on that cause of action. (Code Civ. Proc., § 437c, subd. (p)(1).) The burden then shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or defense thereto.

The basic elements of unlawful detainer for nonpayment of rent 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.) The sole issue before the court in an unlawful detainer action is the right to possession. (See Briggs v. Electronic Memories & Magnetics Corp. (1975) 53 Cal.App.3d 900, 906 [“[T]he purpose of an unlawful detainer action is to recover possession of the premises for the landlord.”].)

Daniel Bell, the Vice President of Acquisitions for Onni Properties, LLC, declares that he is familiar with the Onni Paseo’s business records and authenticates a copy of the Lease (Exhibit 1), the grant deed showing Onni Paseo’s acquisition of the Property, effective October 21, 2022 (Exhibit 2), the Parking Operation and Maintenance Agreement (“POMA”) with the City of Pasadena (“City”) for an easement to use the City’s parking garage and the amended version (Exhibits 3 and 4). Bell declares Tenant is in possession of the hotel on the Property and such possession is without permission because Onni Paseo has served notices of default for failure to pay rent and tenant has refused to vacate the hotel while refusing to pay the amount of rent demanded. (Bell Decl., ¶¶ 6, 11, 12.) Bell states that starting in January 2020, Tenant has failed to pay the full monthly rent owed, and has continued to fail to pay a portion of the rent due every month after. (Bell Decl., Ex. 1 [Lease, Section 2.02(B); Ex. 5.) Bell authenticates a “current aging receivables report”, attached to his declaration as Exhibit 5, which shows that Tenant owes a total amount of $839,931.05, consisting of $279,931.05 in Base Rental, $10,000 for CAM, and $550,000 in parking income.

Onni Paseo argues that Tenant is in default for nonpayment of rent because Tenant admitted that it received a written Notice of Default and Reservation of Rights dated March 8, 2023. (Waggoner Decl., Ex. 10, RFA No. 7) and failed to pay the full amount demanded within 5 business days (RFA No. 9.) However, Tenant also disputes the amount owed, therefore, the admission that Tenant failed to pay the amount demanded is not dispositive of whether it is in default for nonpayment of rent.

Onni Paseo also cites to Tenant’s responses to Special Interrogatories as “admissions:” that Tenant has failed to pay all rent due. However, in these discovery responses, Tenant stated that it has paid all Base Rental and CAM fees due and owing through May 2023, and offset the parking fees it has paid to City from the Minimum Parking Fee owed to Onni Paseo. (Waggoner Decl., Ex. 11, SROG No. 2.) Tenant also claims that Onni Paseo is required to pay the fees owed under POMA to the City based on section 3.03 of the Lease. (Id., SROG No. 5.)

Next, Onni Paseo contends that the Lease requires Tenant to pay rent “without offset or deduction”. Sections 2.02(B) and (C) of the Lease state:

(B) Base Rental shall be payable in equal monthly installments in advance commencing on the Rent Commencement Date and on the first (1st) day of each month of the Term of this Lease thereafter at such place as Landlord shall designate in writing, without offset or deduction. Rent for any partial month at the end of the Lease Term shall be prorated. The obligation to pay rents and charges hereunder are independent covenants of Tenant. All amounts payable under this Lease by Tenant shall be deemed to be rent. Base Rental shall be prorated for any period less than a month.”

(C) It is the purpose and intent of Landlord and Tenant that the Base Rental herein provided to be paid to Landlord by Tenant be absolutely net to Landlord so that this Lease shall yield net to Landlord without abatement, set-off or deduction therefrom, the Base Rental as hereinabove provided, to be paid during the term of this Lease or any extensions hereof, and that as between Landlord and Tenant all costs, expenses, obligations, assessments, or impositions of every kind or nature whatsoever relating to the Premises or the construction of any improvements thereon which may arise or become due during the Term of this Lease or any extensions hereof be paid by Tenant, including, without limitation, real estate taxes and assessments, insurance and maintenance, and Landlord be indemnified and saved harmless by Tenant from and against the same.

(Bell, Ex. 1.) These terms of the Lease address “Base Rental” and are separate from section 3.03, which addresses the parking garage and the annual payment for parking spaces (“Minimum Parking Fee”). (Id.) Although all amounts due under the Lease are “rent”, the prohibition on offsets only pertain specifically to the Base Rental, which does not include the Minimum Parking Fee.

Last, Onni Paseo argues that although it is entitled to an award of damages, it will “conditionally withdraw its claim for damages if the sum of damages owed creates a triable issue of fact” and litigate that issue in a separate civil action. However, the Court does not need to determine this issue because triable issues of fact remain regarding whether Tenant is in default.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.