SM 10000 PROPERTY, LLC VS MANSOUR ZAKHOR

Tentative Rulings

Case Number: *******1055    Hearing Date: August 11, 2020    Dept: P

Ruling

SM 10000 Property, LLC v. Mansour Zakhor, Case No. *******1055

Hearing Date August 11, 2020

Plaintiff’s Ex Parte Motion to Issue Summons in Unlawful Detainer Action

Plaintiff seeks to evict residential tenant defendant Zakhor for breach of lease for refusing to allow plaintiff’s contractors and/or agents to access his unit to repair water damage. Pursuant to Judicial Counsel Emergency Rule 1(b), because of the ongoing COVID-19 pandemic, “[a] court may not issue a summons on a complaint for unlawful detainer unless the court finds, in its discretion and on the record, that the action is necessary to protect public health and safety.”

Plaintiff argues the public health and safety exception applies and provides the declaration of its attorney, Thomas Olsen, who states “Dr. Zakhor’s refusal to allow access to perform repairs to prevent further damage to the walls, to prevent mold growth and to ensure that the unit remains a safe environment for Dr. Zakhor, and neighboring residents, guests, and employees, has forced Plaintiff to file this Unlawful Detainer action.” Olson declaration ¶12.

This is insufficient. The basis of Olson’s personal knowledge of the alleged threat to public health is unstated, as is Olson’s background and knowledge regarding leaks and mold. Nor does the declaration provide detail as to the scope and nature of the leak. Without more, the court cannot find that this unlawful detainer action is necessary to protect public health and safety. DENIED without prejudice.

DUE TO THE ONGOING COVID-19 PANDEMIC, PARTIES AND COUNSEL ARE STRONGLY ENCOURAGED TO AVOID IN-PERSON APPEARANCES AND TO APPEAR REMOTELY. LA COURT CONNECT IS NOW AVAILABLE.

Case Number: *******1055 Hearing Date: February 8, 2022 Dept: P

Tentative Ruling

SM 1000 Property, LLC v. Zakhor, Case No. *******1055

Hearing Date February 8, 2022

Plaintiff SM 1000 Property’s Motion for Summary Judgment

Plaintiff alleges defendant failed to pay rent and utilities due under his rental lease agreement. Plaintiff argues defendant owes more than $150,000, and there are no triable issues of fact as to his breach and obligation to pay.

Evidentiary Objections

Plaintiff’s Objections: All OVERRULED.

No Objections from Defendant.

Motion for Summary Judgment

A plaintiff moving for summary judgment must establish all elements of a cause of action but is not required to disprove any affirmative defense asserted by the defendant. WRI Opportunity Loans II, LLC v. Cooper (2007) 154 Cal.App.4th 525, 532. Lease agreements are governed by ordinary rules of contract interpretation. Golden W. Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 21.

Plaintiff provides evidence that the parties formed a lease agreement, defendant stopped making regular monthly rental payments between March 2020 and October 2021 and has continued living in the property. Plaintiff’s separate statement (PSS) 14-17. This is sufficient to establish the elements of breach of contract, fulfilling plaintiff’s initial summary judgment burden.

Defendant argues plaintiff has not addressed his affirmative defenses. A plaintiff is not required to refute every affirmative defense to meet its initial summary judgment burden. Defendant presents evidence that he may be entitled to an offset, because many amenities included in his lease were discontinued during the period of nonpayment. Defendants’ opposition to plaintiff’s separate statement 17.

In reply, defendant argues plaintiff is not entitled to an offset due to Cal. Civ. Code 1942.9, which states that “a landlord who temporarily reduces or makes unavailable a service or amenity as the result of compliance with federal, state, or local public health orders or guidelines shall not be considered to have violated the rental or lease agreement, nor to have provided different terms or conditions of tenancy or reduced services[.]” Plaintiff failed to provide evidence that these reductions in services were necessary to comply with public health orders. There is a triable issue of fact as to defendant’s offset defense.

Defendant alleges the action violates the CA tenant relief act and various local COVID-19 tenant protection rules. Plaintiff notes the tenant relief act of 2020 -- Cal. Code of Civ. Proc. 1179.03 and 1179.03.5 – applies only to unlawful detainer actions for eviction, not actions only seeking to recover rental debt like this. Plaintiff cites Cal. Code of Civ. Proc. 871.10(g)(1), which states that actions for rental debt brought before October 1, 2020 “shall not be stayed and may proceed,” refuting defendant’s argument that this action was not brought prematurely.

Plaintiff established all elements of breach of contract. Defendant showed was a triable issue of fact as to his offset defense, and plaintiff failed to clearly establish that the defense is barred under Cal. Civ. Code 1942.9. DENIED.

DUE TO THE ONGOING COVID-19 PANDEMIC PARTIES AND COUNSEL ARE ENCOURAGED TO APPEAR BY MICROSOFT OFFICE TEAMS.