Case Number: TC027536??? Hearing Date: September 13, 2016??? Dept: S27
Cross-Defendant Taco Bell Corporation (?Taco Bell?) moves for Summary Judgment on the cross-complaint of Compton Commercial Development Renaissance Plaza, LLC (?Compton?). After a demurrer was sustained, the only remaining claim in the cross-complaint is for Ejectment.
Taco Bell was a lessee of Compton, operating a Taco Bell restaurant on Compton?s property.
In 1998 Taco Bell purported to assign its leasehold to Plaintiff and Cross-Defendant Palo Verde, Inc., which has operated the restaurant as a franchisee. Compton disputes the efficacy of the assignment because its written consent was required under the terms of the lease and only verbal assent to the assignment is claimed. But it is undisputed that Taco Bell recorded a Memorandum of Assignment and Assumption of Lease on April 27, 1998.
Taco Bell?s separate statement contains three facts:
1. Taco Bell was not in possession of the premises when the First Amended Cross-Complaint was filed on May 14, 2015 and has not been in possession at any time since;
2. Taco Bell has disclaimed any present or future right to possession of the premises; and
3. Taco Bell and Palo Verde never entered into a sub-lease agreement for the property.
The Court finds that all three facts are supported by admissible evidence and they are sufficient to satisfy Taco Bell?s initial burden.
Compton?s argument is not well taken that just three facts are insufficient. A separate statement need only contain the facts which are material to a party?s entitlement to judgment as a matter of law. There is only one cause of action at issue, and Taco Bell has supplied the only facts necessary to negate an essential element of a claim for Ejectment ? the lack of possession and a disclaimer of any right to possession in the future. Contrary to Compton?s argument, ?underlying facts? are not necessary to meet the burden.
The Court incorporates its written rulings on Compton?s evidentiary objections by reference. They are all overruled.
Ejectment is an alternative to a claim for Unlawful Detainer. A defendant?s possession of the property is an essential element:
?The possession of the land by the defendant at the time when the action is commenced is a necessary element of the plaintiff?s right to recover in an action of this nature?This action, being only for the recovery of the possession of certain real property, cannot, in a case where the defendant is not in possession, be substituted for an action to determine whether the plaintiff or the defendant has the title to the land. The gravamen of the action is the withholding of the possession from the plaintiff, and the very essence of the plaintiff?s cause of action is lacking, if the defendant is not shown to be in such possession. Accordingly, it has been invariably held that if plaintiff fails to show that the defendant was in possession of the land sued for at the commencement of the action, he is not entitled to judgment.?
Frazier v. Lynch (1893) 97 Cal. 370, 371-372
Although Compton disputes the assignment (and the Court has identified this issue as a triable issue in prior Summary Judgment motion between Compton and Palo Verde, the purported assignee), there is no evidence showing that Taco Bell has actual possession of the premises as of the date the pleading was filed. A future right to possession under the lease is insufficient to maintain a claim for Ejectment. Although Palo Verde may or may not be a tenant under an assignment of the lease, the fact of its actual possession is not effectively disputed.
The motion is granted. Taco Bell is to lodge and serve a proposed judgment.