Filed 1/14/20 6492 Florin Perkins Road LLC v. Galletta CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

6492 FLORIN PERKINS ROAD LLC et al.,

Plaintiffs and Appellants,

v.

BRIAN GALLETTA,

Defendant and Respondent.

C088019

(Super. Ct. No. 34201800233771CUUDGDS)

This case involves a dispute between owners of real property on which a licensed cannabis retail store operates over access to the store. Plaintiffs 6492 Florin Perkins Road LLC, Miguel Rodriguez, Alicia Darrow, David Kang, and Michael Christian Gard appeal from the trial court’s entry of judgment in favor of defendant Brian Galletta following his motion for summary judgment. After Galletta met his initial burden to demonstrate that each of Plaintiffs’ causes of action could not be established, Plaintiffs failed to demonstrate a triable issue of fact as to any of their causes of action. We will therefore affirm the judgment.

I. BACKGROUND

The complaint alleges Plaintiffs are the owners of real property located at 6492 Florin Perkins Road in Sacramento. More specifically, they allege the deed for the premises is held in the name of 6492 Florin Perkins Road LLC, and the operation agreement for 6492 Florin Perkins Road LLC designates the individual plaintiffs 50 percent owners of the premises and Galletta the owner of the other 50 percent. The complaint further alleges Darrow and Galletta are the two managing members of 6492 Florin Perkins Road LLC. Plaintiffs allege they operate a licensed cannabis retail store on the premises, and that they were in the possession of the premises jointly with Galletta from November 2016 until May 14, 2018, when he changed the locks, instructed security personnel hired by him not to allow Plaintiffs access, and notified Plaintiffs in writing they would not be permitted to enter. The complaint alleges three causes of action based on these allegations: (1) forcible entry under Code of Civil Procedure section 1159(1), (2) forcible entry under section 1159(2), and (3) forcible detainer under section 1160(2).

Galletta moved for summary judgment. He submitted a separate statement of undisputed material facts in support of his motion. He also submitted evidence that Metro Health Systems (Metro Health) leased the premises and that, as the President and Chief Executive Officer of Metro Health, he had unrestricted access to the premises and regularly appeared there. Further, Galletta declared that, on May 14, 2018, he entered by unlocking the door with his keys, opening the door, and walking inside while no one else was present. Galletta argued that, as the owner and not the occupant of the premises, 6492 Florin Perkins Road LLC could not bring an action for forcible entry or detainer. Galletta also argued essential elements unique to each cause of action were not met. As relevant to this appeal, Galletta argued: (1) no violation of section 1159(1) occurred because Plaintiffs consented to his entry, (2) none of the Plaintiffs met the statutory definition of a “party in possession” under section 1159(2), and (3) none of the plaintiffs served a demand prior to filing suit as required under section 1160(2).

In response to his motion, Plaintiffs submitted an opposition brief with few citations to their evidence and a response to Galletta’s separate statement that did not always clearly identify whether they disputed Galletta’s alleged undisputed material facts. With respect to the third cause of action, Plaintiffs argued “who issued the notice is not relevant.”

The court granted Galletta’s motion.

As to the first cause of action for forcible entry under section 1159(1), the court explained that because Galletta tendered evidence he entered the premises with Plaintiffs’ consent, the burden shifted to Plaintiffs to produce evidence demonstrating their consent involved a triable issue. Plaintiffs failed to meet this burden. Accordingly, Galletta demonstrated a defense to the first cause of action as a matter of law.

As to the second cause of action for forcible entry, the court concluded that because it was undisputed that Metro Health was the lessee and not Plaintiffs, there was no triable issue of fact. Metro Health was the only hirer of the premises, and therefore the only “party in possession” with standing to bring an action under section 1159(2).

As to the third cause of action for forcible detainer, the court was not persuaded by Plaintiffs’ argument that it was irrelevant whether they made a demand. Further, Galletta tendered evidence Plaintiffs never made the requisite demand for his surrender of the property prior to filing suit and that a demand was served by a different entity. Plaintiffs, in turn, did not produce evidence supporting an inference they served the demand. Thus, Plaintiffs could not advance a claim under section 1160(2).

The trial court entered judgment in favor of Galletta, and Plaintiffs filed a timely appeal.

II. DISCUSSION

A. Standard of Review

We begin by summarizing several principles that govern the grant and review of summary judgment motions under section 437c.

“The purpose of the law of 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. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A defendant moving for summary judgment “bears the burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto.” (Id. at p. 850; see also § 437c, subd. (p)(2).) The defendant “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar v. Atlantic Richfield Co., supra, at p. 850.) Once the defendant meets its initial burden, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of material fact. (Id. at pp. 849-850.) “The plaintiff . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (§ 437c, subd. (p)(2).) “The 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.” (§ 437c, subd. (c).) The court may disregard evidence not called to its attention by either party. (Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1134.)

“On appeal, we review the record de novo to determine whether the moving party met its burden of proof.” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.) Nonetheless, we too are not obligated “to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant’s responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed.” (Ibid.)

Plaintiffs’ briefing is conspicuous for its shortage of citations to evidence in the record to support its factual assertions. The appellant must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C), italics added.) That relevant record citations may have been provided to support some references in Plaintiffs’ briefs does not cure a failure to support other references with citations to the record. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16.) This is particularly true here where Plaintiffs’ factual background provides general citations to declarations they submitted in opposition to summary judgment before summarizing the contents of those declarations. To the extent Plaintiffs may repeat some of these factual assertions again in support of their various legal arguments, the earlier citations do not fulfill “the purpose of the citation requirement, which is to enable appellate justices and staff attorneys to locate relevant portions of the record expeditiously without thumbing through and rereading earlier portions of a brief.” (Ibid.) “ ‘The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment.’ [Citations.] It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant’s contentions on appeal. [Citation.] If no citation ‘is furnished on a particular point, the court may treat it as waived.’ ” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) With these principles in mind, we now turn to the issues before us.

B. Section 1159(1)

At the time of the trial court proceedings, section 1159 provided:

“Every person is guilty of a forcible entry who either:

“1. By breaking open doors, windows, or other parts of a house, or by any kind of violence or circumstance of terror enters upon or into any real property; or,

“2. Who, after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession.

“The ‘party in possession’ means any person who hires real property and includes a boarder or lodger, except those persons whose occupancy is described in subdivision (b) of Section 1940 of the Civil Code.” (Stats. 1976, ch. 712, § 2, p. 1728.)

With respect to section 1159(1), our Supreme Court held in Jordan v. Talbot (1961) 55 Cal.2d 597, 605 that the “[d]efendant violated this section when he unlocked plaintiff’s apartment without her consent and entered with the storage company employees to remove her furniture, even though there was no physical damage to the premises or actual violence.” (Italics added.) As our Supreme Court explained, courts “have implied force in an entry made upon land in the possession of another without his consent, despite the absence of either violence or physical damage.” (Id. at p. 606, italics added.) Thus, as the trial court concluded, with respect to the first cause of action, consent is a defense to the assertion that Galletta’s entry with his own key was forcible.

In moving for summary judgment, Galletta argued no violation of section 1159(1) occurred because Plaintiffs consented to his entry and that, as the President and Chief Executive Officer of the tenant, Metro Health, he had unrestricted access to the premises. In his separate statement of undisputed material facts, Galletta made the following assertions supported by his own declaration: (1) he was a director, the President, and the Chief Executive Officer of Metro Health at all relevant times; (2) he was physically present on the premises in the five days preceding his entry on May 14, 2018, and Plaintiffs were aware of and consented to his presence; and (3) he gained entry by unlocking the front door with his own keys, opening the door, and walking inside. In response, Plaintiffs did not clearly state whether they disputed these statements, but indicated that, after they filed their lawsuit, Galletta was removed as a director of Metro Health and they had taken steps to dissolve 6492 Florin Perkins Road LLC. Plaintiffs also quoted various passages from declarations, including some explaining for what purposes Galletta would enter the store and that on only one other occasion did he enter the store after business hours. In their opposition brief, Plaintiffs argued without citation to the record that “Galletta had a limited license to enter the premises during business hours exclusively to review the businesses earnings and pick up payments, he did not have unfettered permission to go and come otherwise.” Plaintiffs’ statement of facts included the assertion that “Galletta . . . had only limited rights of possession; by agreement he could merely enter the premises during business hours to review financial information pertaining to the store’s earnings, consult with plaintiff Miguel Rodriguez and pick up his payments from plaintiffs for the purchase price of the store and its business.” (Italics added.) This statement was also unsupported by a citation to the record. Nor was it referenced in Plaintiffs’ actual arguments pertaining to consent.

The trial court found the evidence produced by Galletta barred the reasonable inference that his entry was nonconsensual, and the burden had shifted to Plaintiffs to produce evidence demonstrating a triable issue as to consent. The court concluded Plaintiffs did not do so: “Plaintiffs tender evidence that they typically saw Galletta on the premises during business hours, and that the entry supporting their causes of action occurred at nighttime. But this evidence does not support an inference there were limits upon any consent they provided.”

Plaintiffs argue summary judgment was improper because Galletta failed to show he was given consent to enter and lock them out. This was not his burden. The relevant question as to the first cause of action is whether Galletta had consent to enter. (See Karp v. Margolis (1958) 159 Cal.App.2d 69, 74 [“The evidence supports the findings that there was . . . no consent to the entry and that all necessary elements to establish a forcible entry and detainer were present”].) Galletta met his burden in this regard. Section 1159(1) is directed at the entry itself and section 1159(2) is directed at the defendant’s activity after entry. Thus, Jordan v. Talbot, supra, 55 Cal.2d 597 explained, “[e]ven if we were to interpret the first subdivision of section 1159 as being inapplicable unless a door or window was physically damaged or threats of violence actually occurred, the evidence in the instant case would nevertheless support a finding of forcible entry as defined by subdivision 2 of section 1159. Under that subdivision a forcible entry is completed if, after a peaceable entry, the occupant is excluded from possession by force or threats of violence.” (Jordan v. Talbot, supra, at p. 607, italics added.) “It has long been settled that there is a forcible entry under subdivision 2 if a show of force is made that causes the occupant to refrain from reentering.” (Ibid.) Plaintiffs’ arguments pertaining to Galletta’s alleged attempts to prevent them from reentering are relevant to their second and third causes of action, if at all.

On appeal, Plaintiffs argue the trial court erred in ruling there was no factual dispute as to the scope of consent given to Galletta to enter the premises because Darrow declared that Plaintiffs agreed to buy 55 percent of Metro Health and 50 percent of the property at 6492 Florin Perkins Road, and when they did so, “it was understood, and part of the agreement, that [Galletta] would never access the premises except during business hours for the limited purpose of selling his personal cannabis to the dispensary under consignment, to pick up cash payments, and to discuss financial issues with Michael Rodriguez.”

Because Plaintiffs did not bring this evidence to the trial court’s attention, it is not a basis for reversing summary judgment. (Sheeler v. Greystone Homes, Inc. (2003) 113 Cal.App.4th 908, 920, fn. 7; see also Food Safety Net Services v. Eco Safe Systems USA, Inc., supra, 209 Cal.App.4th at p. 1134.) “[W]here evidence is not referenced, is hidden in voluminous papers, and is not called to the attention of the court at all, a summary judgment should not be reversed on grounds the court should have considered such evidence. Appellate courts need not address theories that were not advanced in the trial court.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) While the evidence here may not have been hidden in “voluminous papers,” it was not incumbent upon the court to see it. The fact that it could have been found in the filed documents is of no value because it improperly imposes the burden on the trial court to determine the existence and significance of facts which counsel failed to bring out. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 31.) In sum, the trial court did not err in concluding Plaintiffs did not demonstrate a triable issue of fact as to their first cause of action.

C. Section 1159(2)

As set forth above, section 1159(2) provided that a person is guilty of forcible entry “[w]ho, after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession.” In 1976, section 1159 was amended to add: “The ‘party in possession’ means any person who hires real property and includes a boarder or lodger, except those persons whose occupancy is described in subdivision (b) of Section 1940 of the Civil Code.” (Stats. 1976, ch. 712, § 2, p. 1728, italics added.)

In moving for summary judgment on Plaintiffs’ second cause of action, Galletta argued none of the plaintiffs met the statutory definition of a “party in possession.” In their opposition brief, Plaintiffs argued without citation to the evidence that there were triable issues over whether the premises were hired from Galletta: “Given the financial arrangement between [Galletta] and plaintiffs and the consideration [Galleta] received, plaintiffs hired the property.” In his separate statement of undisputed material facts, Galletta asserted Plaintiffs are neither tenants nor operators of any business at the premises, and Metro Health is. Plaintiffs responded that they operate the business at the property, but did not dispute tenancy.

The trial court determined Metro Health, as the lessee, is the only hirer and thus the only party with standing to proceed under section 1159(2). The court concluded Plaintiffs did not present a triable issue of material fact on the question of whether any of them was a “party in possession.” We agree.

Plaintiffs argue the trial court improperly narrowed the definition of “party in possession” by applying Civil Code section 1925, which provides: “Hiring is a contract by which one gives to another the temporary possession and use of property, other than money, for reward, and the latter agrees to return the same to the former at a future time.” We are not persuaded. Spinks v. Equity Residential Briarwood Apartments, supra, 171 Cal.App.4th 1004—which is the only case cited by Plaintiffs that was decided after the 1976 amendment of section 1159 and thus that has any bearing on this question—cites Civil Code section 1925 during the only portion of the opinion that mentions the concept of “the party in possession. (See Spinks, supra, at p. 1037 [“The forcible entry statute protects a ‘party in possession.’ [Citation.] ‘The “party in possession” refers to any person who “hires” real property.’ ([Citation]; see Civ. Code, §§ 1925, 1940.)”].) The only contract for the possession and use of the property before us makes Metro Health the hirer of the premises within the meaning of Civil Code section 1925 and “the party in possession” under section 1159(2). Even without Civil Code section 1925, there appears to be no factual basis for Plaintiffs’ claim that a trier of fact could have found they hired the premises. The only evidence Plaintiffs cite in support of this argument appears to demonstrate that they had a role in Metro Health making rent payments to 6492 Florin Perkins Road LLC and that Galletta’s name is on the mortgage that has been paid from Metro Health’s income or the individual plaintiffs’ personal funds. This is all consistent with Plaintiffs’ allegations that they and Galletta own the property, and Galletta’s evidence that Metro Health is the party that hired the premises. The trial court did not err in concluding there was no triable issue of fact as to Plaintiffs’ second cause of action.

D. Section 1160(2)

At the time of the trial court proceedings, section 1160(2) provided in relevant part: “Every person is guilty of a forcible detainer who . . . [¶] . . . [¶] in the night-time, or during the absence of the occupant of any lands, unlawfully enters upon real property, and who, after demand made for the surrender thereof, for the period of five days, refuses to surrender the same to such former occupant.” In moving for summary judgment, Galletta argued there was no demand served by any of the plaintiffs, and the demand attached to the complaint was served by Baystone Holdings, Inc. In response to his separate statement of undisputed facts, Plaintiffs argued they made a demand but only cited the same exhibits to the complaint that indicate a demand was made on behalf of Baystone Holdings, Inc. In their opposition brief, Plaintiffs argued “who issued the notice is not relevant.” The court concluded Plaintiffs did not produce evidence supporting an inference they had served the demand.

On appeal, Plaintiffs contend their verified complaint alleged the requisite notice had been given by them to Galletta and that he admitted he had received the notice as alleged. The complaint was not so specific. The relevant paragraph of the complaint alleges: “On or about May 14, 2018, while plaintiffs were absent from the premises defendants forcibly and unlawfully entered the premises without the plaintiff’s [sic] consent and not pursuant to legal process, by changing the locks of the exterior doors of the premises and thereafter threatening violence in the form of posting security personnel that would use force and violence should plaintiffs attempt to enter or regain possession of the premises and now defendants [have] exclusively occupied that land that plaintiffs were previously in actual possession of by virtue of their partial ownership of the premises and now defendants refuse to return possession to plaintiffs after having been requested to.” In his answer, Galletta denied he had taken possession from Plaintiffs, but did not specifically deny he was ever requested to return possession to them. Regardless, the complaint does not allege the requisite demand under section 1160(2). It alleges a request for the return of possession, but does not allege when or even how such a request was made. Further, it does not allege who made the demand. Section 1160(2) does not apply unless the defendant who entered the property, “after demand made for the surrender thereof, for the period of five days, refuses to surrender the same to such former occupant.” (Italics added.) When read as a whole, the statute requires that the demand for the surrender of the property to a former occupant be made by that former occupant. Our Supreme Court appears to have has adopted this construction. (See Tivnen v. Monahan (1888) 76 Cal. 131, 132-133 [no forcible detainer where trier of fact found “that defendant did not at any time receive any written or other notice or demand from plaintiff to deliver up to him the possession of the said premises, but did receive a notice to remove from and deliver up to plaintiff the possession of the said building, which he refused to do”].) Thus, who made the demand was relevant and the trial court properly concluded there was no triable issue of fact as to the third cause of action.

III. DISPOSITION

The judgment is affirmed. Respondent Brian Galletta shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/S/

RENNER, J.

We concur:

/S/

RAYE, P. J.

/S/

HULL, J.