Case Number: EC065785??? Hearing Date: April 10, 2017??? Dept: NCB
TENTATIVE RULING
April 10, 2017
DEPARTMENT B
EC065785
GREEN STREET PLAZA, LLC v RANDY MENDOZA
Motions for Summary Judgment
The First Amended Complaint is for unlawful detainer and alleges as follows: The Plaintiff leased commercial property to the Defendant. The Plaintiff then discovered that the Defendant was operating an illegal marijuana business on the premises. The Plaintiff notified the Defendant that he had violated the lease agreement and informed the Defendant that all payments would be returned if the Defendant would immediately vacate the premises.
The Defendant refused to vacate the premises. The Plaintiff changed the locks to protect the safety of other tenants. The Plaintiff then discovered the Defendant?s agent drilling through the locks. The police were called and the agent was instructed to leave the premises.
The Defendant then obtained a construction crew and began installing metal doors, new locks, and modifications to the walls without consent. The police were called and they demanded that the Defendant provide a key for the new locks. The police also removed the tenants and advised them to stay off the premises until the matter had been resolved.
However, the Defendant then obtained a new construction crew and returned to the premises to perform further construction. This included changing the locks, installing high security locks and security cameras, and an armed security guard. All of this was done without consent.
The Defendant was conducting an illegal business at the premises in which he sells large amounts of marijuana in violation of the lease agreement and Pasadena City Codes. The Plaintiff served a 3-day notice to quit based on the breach of the lease by engaging in unlawful activity on the lease. The Plaintiff then commenced this legal action when the Defendant failed to vacate the premises.
This hearing concerns the motions for summary judgment filed by the Plaintiff and the Defendant. In an action for unlawful detainer, CCP section 1170.7 permits a motion for summary judgment to be made at any time after the answer is filed upon giving five days? notice. The Defendant filed his answer on March 29, 2017. Both sides then filed their motions for summary judgment on March 30, 2017 and a hearing was set for April 10, 2017, which was eleven days after the motion was filed. Accordingly, both motions are timely because the parties filed their motions after the Defendant filed his answer and the parties provided five days? notice of the hearing on their motion.
The Plaintiff?s sole cause of action in its complaint is for unlawful detainer based on the Defendant’s failure to quit.
1. Defendant?s Motion for Summary Judgment
Under CCP Section 437c, the Defendant?s burden of proof is to provide evidence demonstrating that an essential element cannot be established or that an affirmative defense bars the claim.
The Defendant argues that the undisputed facts establish its affirmative defense that the Plaintiff waived, changed, or canceled the notice to quit. The Plaintiff served a notice to quit on September 21, 2016 on the ground that the Defendant had breached the lease by engaging in an unlawful activity. The Plaintiff then served a notice to quit or pay rent on February 17, 2017 to demand that the Defendant pay $7,280 in rent. The Defendant argues that the second notice to quit or pay rent waived or canceled the first notice.
The Defendant offers no legal authority holding that a notice to pay rent or quit cancels a prior notice to quit based on an election of forfeiture. Further, the Defendant offers no legal authority holding that once a landlord has brought an unlawful detainer action, the landlord is barred from serving a second 3-day notice to seek rent during the pendency of an unlawful detainer action. This would prejudice a landlord?s right to seek the rent and to prepare a second action, in case the first action is unsuccessful.
Further, the essence of the Defendant?s claimed defense is that the Plaintiff waived the first notice to quit by serving the second notice to quit. Waiver is a question of fact and not of law; therefore, the intention to commit a waiver must be clearly expressed. Moss v. Minor Properties, Inc. (1968) 262 Cal.App.2d 847, 857. There are no grounds to find that the Plaintiff?s service of a second notice to pay rent or quit was a waiver of the first notice to quit on the ground that the Defendant had forfeited the lease by engaging in unlawful activity.
In addition, the Plaintiff included in its opposition papers a declaration from Omar Taylor, who is an officer of the Plaintiff. Mr. Taylor states that the Plaintiff?s intent has always been to evict the Defendant and that the acceptance of rent during the pendency of this lawsuit was not a waiver of the breach. Mr. Taylor states that this unlawful detainer case has continued for a lengthy period of time and that the Defendant has caused damage to the building. These facts create a question of fact whether the Plaintiff waived the notice to quit based on the Defendant?s forfeiture of the lease by engaging in unlawful activity.
Therefore, the Court denies the Defendant?s motion for summary judgment because the Defendant has not met his burden and because there is a dispute of fact concerning a waiver of the notice to quit based on the forfeiture.
2. Plaintiff?s Motion for Summary Judgment
The Plaintiff seeks summary judgment on the ground that there is no dispute that the Defendant has forfeited the lease by engaging in an unlawful business on the premises. In its First Amended Complaint, the Plaintiff pleads that the parties entered into a written agreement and that the Plaintiff is entitled to possession because the Defendant failed to quit after receiving a notice of election of forfeiture.
A copy of the notice to quit is in exhibit 2 to the First Amended Complaint. The notice to quit states that the Defendant is in breach of the lease because he is using the premises in an unlawful manner by operating a medical marijuana business in violation of the Pasadena City Code, section 8.77.020, and that his continued use is a public nuisance. The Plaintiff states that it has elected to declare a forfeiture of the agreement.
The Plaintiff provides a copy of the lease agreement in exhibit 1 to the First Amended Complaint. Under paragraph 6.1, the lessee shall use and occupy the premises for the agreed use or any other legal use. Paragraph 6.1 also states that the lessee shall not use or permit the use of the premises in a manner that is unlawful. The lease states that the premises is located at 1224 E. Green Street in the City of Pasadena. Section 13.2 states that in the event of a breach, the lessor may terminate the lessee?s right to possession of the premises in which case the lease shall terminate and the lessee shall immediately surrender possession to the lessor.
The Plaintiff provides a copy of Chapter 8.77 of the Pasadena Code of Ordinances in exhibit 4 to its request for judicial notice. Section 8.77.020 states that marijuana cultivation, marijuana possessing, marijuana delivery, and marijuana dispensaries shall be prohibited activities in the city and that no person shall establish or conduct such activities in the city. Rule 8.77.030 states that any such use is a public nuisance. These sections of the Pasadena City Code demonstrate that the use of a premises in Pasadena for the purpose of a marijuana dispensary or for the purposes of marijuana cultivation, processing, or delivery is unlawful.
The Plaintiff provides the declaration of Omar Taylor, who states that he is the manager of the Plaintiff. Mr. Taylor states that on August 16, 2016, he discovered that the Defendant was operating a marijuana business at the premises. Mr. Taylor states that, based on the smell of marijuana and various jars of marijuana in display cabinets, which he saw on the premises leased by the Defendant, the Defendant is operating a marijuana dispensary. Mr. Taylor states that he informed the tenant that the lease was void on the basis of the unlawful use. These facts demonstrate that the Defendant is using the premises for a marijuana dispensary or for the purposes of marijuana cultivation, processing, or delivery. Since this is unlawful activity within the City of Pasadena under Rule 8.77.020 of the Pasadena City Code, these facts demonstrate that the Defendant is engaged in an unlawful use of the premises.
These facts demonstrate that the Defendant breached the lease by engaging in an unlawful use of the premises, that the Plaintiff terminated the Defendant?s right to possession, and that the Plaintiff has the right to immediate possession of the premises. Further, these facts demonstrate that the Plaintiff served a three-day notice to quit based on this breach and made an election of forfeiture of the lease. As a result, the Plaintiff has met its burden of proof with the facts demonstrating that the Plaintiff has the right to immediate possession of the premises. This shifts the burden to Defendant to establish issues of fact.
The Defendant did not file any opposition papers. Since the Plaintiff?s facts are undisputed, the Plaintiff is entitled to summary judgment.
Therefore, the Court grants the Plaintiff?s motion for summary adjudication.