Case Number: 14UA0793 Hearing Date: May 01, 2014 Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

DALLIN, LLC )
) Case Number 14UA0793
Plaintiffs, )
) ORDER AFTER HEARING
V )
) Date of Hearing:
DARRELL FLOYD, et al. ) May 1, 2014
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

The motion of Defendants Darrell Floyd, Damon Bruce, Jannel Bruce, and Dijon Bruce for summary judgment came on for hearing on May 1, 2014. Plaintiff Dallin, LLC appeared through its counsel of record, _________________________. Defendants Darrell Floyd, Damon Bruce, Jannel Bruce, and Dijon Bruce appeared through their counsel of record, ___________________________. The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, it is hereby ORDERED:

The motion of Defendants Darrell Floyd, Damon Bruce, Jannel Bruce, and Dijon Bruce for summary judgment is DENIED.

SO ORDERED this the _____ day of May, 2014.

______________________
RANDOLPH A. ROGERS,
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

DALLIN, LLC )
) Case Number 14UA0793
Plaintiffs, )
) ORDER AFTER HEARING
V )
) Date of Hearing:
DARRELL FLOYD, et al. ) May 1, 2014
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. The present case arises out of a rental dispute for property located at 45535 3rd street east, Lancaster, CA 93535.

2. Three day notice to quit was given on March 25, 2014. Plaintiff filed its Complaint on April 3, 2014. Defendants filed their answer on April 8, 2014.

3. On April 28, 2014, the Defendants filed their motion for summary judgment, alleging that the notice to pay rent or quit is overstated, there is a violation of Civil Code §1479 for applying rent payments to other debts, there is a violation of CCP §1161(2) for failing to name a natural person, and a violation of CCP §446(a) because the Complaint is not verified.

4. Plaintiff filed its opposition on April 30, 2014.

5. Standard for summary judgment – A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. Cal. Code Civ. Proc. § 437c(a). To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Cal. Code Civ. Proc. § 437c(c). In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute. “For purposes of motions for summary judgment and summary adjudication: [¶] (1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden 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 a defense thereto. The defendant or cross-defendant may not rely upon the mere 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 that cause of action or a defense thereto.” Cal. Code Civ. Proc. § 437c(p)(1).

6. “[H]ow the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial. Again, in Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 208 Cal.Rptr. 137, 690 P.2d 610, we held to the effect that the placement and quantum of the burden of proof at trial were crucial for purposes of summary judgment. [Citation.] . . . Thus, if a plaintiff who would bear the burden of proof by a preponderance of evidence at trial moves for summary judgment, he must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not –otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851. “Summary judgment law in this state no longer requires a plaintiff moving for summary judgment to disprove any defense asserted by the defendant as well as prove each element of his own cause of action . . . . All that the plaintiff need do is to ‘prove[ ] each element of the cause of action[.]’” Id. at p. 841.

7. The burden of persuasion remains with the party moving for summary judgment. Aguilar, supra, 25 Cal.4th 826, at pp. 850, 861. When defendant moves for summary judgment in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must accomplish at least one of two things. First, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true. Id. at p. 851. In the alternative, the defendant must demonstrate that an element of the claim cannot be established, by presenting evidence that the plaintiff does not possess and cannot reasonably obtain needed evidence. Id. To obtain summary judgment, a defendant may conclusively negate an essential element of plaintiff’s causes of action. Nevertheless, a defendant is not required to do so. Aguilar, supra, 25 Cal.4th at p. 853. As the Court of Appeals has observed, “Summary judgment in favor of the defendant will be upheld when the evidentiary submissions conclusively negate a necessary element of the plaintiff’s cause of action or show that under no hypothesis is there a material issue of fact requiring the process of a trial.” Biscotti v. Yuba City Unified School Dist. (2007) 158 Cal.App.4th 554, 557-58.

8. When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841. In determining whether the facts give rise to a triable issue of material fact, “‘[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment . . . .’” Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99. “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.

9. Defendants argue that they are entitled to summary judgment based on three facts, the establishment of any of which would entitle Defendants to prevail on the merits in the present suit. First, Defendants argue that the 3-day notice to quit is defective because it overstates what is actually due because Plaintiff impermissibly applied rent paid intended for base rent towards the satisfaction of pet rent. Second, the 3-day notice to quit is defective because it does not comply with CCP §1161(2) by failing to list a specific natural person to receive payment. Finally, the Complaint as a whole is defective because it is not properly verified.

10. Notice to pay rent is overstated – Code of Civil Procedure §1161(2) requires that a three day notice to quit in an unlawful detainer case state “the amount which is due, the name, telephone number, and address of the person to whom the rent payment shall be made.” The three day notice sent “must contain a demand for ‘the precise sum’ of rent due.” Valov v. Tank (1985) 168 Cal.App.3d 867, 871. “[A] notice which contains a demand for rent in excess of the amount provided in the lease is defective.” Id. at 872.

11. Defendants contend here that because the checks sent to Plaintiff were for “rent” of a specified month, the excess of $31 per month over the base rent of $1,209 was improperly applied to “pet rent.” Motion at 4:26-7. As such, the 3-day notice for the months of January, February, and March of 2014 necessarily overstated the amount of rent due, and therefore is defective.

12. However, as Plaintiff points out, the terms of the lease specifically state that “rent” is defined as “all monetary obligations of Resident to Owner under the terms of this Lease.” Opposition, Exhibit 1, article 4. As such, each payment by Defendant was treated as payment of both base rent and pet rent, as well as rental credit to the Defendants.

13. These facts establish that there is a triable issue of fact involved. Moreover, this fact goes directly to Defendants’ affirmative defense of defective notice. Therefore, Defendants are not entitled to summary judgment as to this fact.

14. Failure to name a natural person to receive payment – Defendants argue that Plaintiff’s failure to name a natural person on the 3-day notice constitutes a failure to observe the strictures of CCP §1161(2). The text of the statute in question states that the three days’ notice must be “in writing, . . . stating the amount which is due, the name, telephone number, and address of the person to whom the rent payment shall be made, and, if payment may be made personally, the usual days and hours that person will be available to receive the payment.) CCP §1161(2) (emphasis added).

15. From this text, Defendants urge an interpretation of the statute to mean that the person in the statute must be a natural person, arguing that interpreting otherwise would “be at odds with the concept of making the payment personally by the tenant” and, in light of the statute’s use of the word landlord, “render the statutory language surplus and of no use.” Motion at 6:4-5 and 6:11-12. Therefore, because the notice does not name a natural person to whom payment must be made, it is defective for failure to comply with the statutory requirements.

16. Defendants’ interpretation of the statute is unavailing. First, Defendants take significant issue with the phrase “available to receive the rent,” contending that the statute requires the specification of such an available person. Specifically, Defendants argue that “the plain language indicates that the notice must specify a person being available to receive the rent.” Motion at 6:3-4. However, the “available to receive the payment” language is only in reference to situations where payment is made personally. The language does not apply to the entire subsection. Indeed, it would distort the statute if the specified language dealing exclusively with personal payments were to be applied to the entire section, considering that the statute explicitly contemplates mailing of payment.

17. Defendants then argue that the use of the word “landlord” in the statute should imply that a natural person must be named because “it must be presumed that the Legislature in this regard meant to distinguish the ‘person’ to be named from the landlord itself.” Motion 6:7-8. However, accepting this contention does not naturally follow that the legislature intended “person” to refer only to natural persons. While it is true that in this case the landlord is a corporate entity, a landlord in general is not restricted to only a corporation. The mere distinction of a landlord, who may be a person or an entity, from the person to whom payment must be made does not naturally give rise to an inference that the “person” can only be a natural person. Rather, it is far more plausible that the legislature merely intended to acknowledge the situations where a landlord accepted payment through agents, such as through a professional management company or through friends or acquaintances who manage the property on their behalf.

18. This proposition finds support in Defendants’ citation of the legislative history of §1161. Defendants argue that the amendment to §1161 is intended “to avoid unlawful detainers entirely by specifying an individual or individuals to whom and where payment can be made.” Motion at 7:23-24. However, the quoted legislative history stands more for the proposition that an unlawful detainer notice to quit must on its face provide sufficient information that the tenant will not be subject to suit due to confusing and unclear information as to whom rent is due. It would hardly defeat the purpose of the amendment if legal persons may be named because there is still no confusion as to whom the tenant is to pay and where he might make such payment.

19. Finally, CCP §17(a) states that “the word ‘person’ includes a corporation as well as a natural person.” Defendants argue that this definition is not absolute, but subject to the proper interpretation of the statute. It thereafter cites Boy Scouts of America Nat. Foundation v. Superior Court (2012) 206 Cal.App.4th 428 and Diamond View Limited v. Herz (1986) 180 Cal.App.3d 612, two cases where Defendants argue the court found the word person to not include entities. Both cases are distinguishable.

20. In Boy Scouts, the statute in question explicitly distinguished and differentiated between a person and an entity. CCP §340.1(a)(2) (“An action for liability against any person or entity). In reaching its decision, the Court noted that “[p]laintiffs’ interpretation would . . . require us to ignore the word ‘entity’ in subdivisions (a)(2) and (a)(3) of section 340.1.” Boy Scouts, supra, 206 Cal.App.4th at 446. The interpretation there urged would have required the court to interpret the statute to have the same word interpreted two different ways within the same section. Such an interpretation would obviously obviate the necessity of certain words within the statute and naturally causes conflict.

21. Similarly, in Diamond View, the Court of Appeals found Code of Civil Procedure §527.6 to apply to natural person because the enacting states “expressly declares that the Legislature intends by this act to protect the individual’s right to pursue safety, happiness and privacy as guaranteed by the California Constitution.” Diamond View, supra, 180 Cal.App.3d at 618. The express legislative intent “strongly suggests that the Legislature intended that the victim of harassment be an individual human being rather than an artificial legal entity.” Id. Moreover, the statute defined harassment in terms of “emotional states exhibited by natural persons, not by legal fictions.” Id. These indications led the court to conclude that “the purpose of section 527.6 is to provide remedy only to natural persons.” Id. at 619.

22. Unlike in either Boy Scouts or Diamond View, there are no express indications in the text which would suggest that CCP §17’s definition of a person has been superseded, or was intended to be superseded. Further, the legislative history is not inconsistent with interpreting “person” in §1161(2) to include entities as well as natural persons.

23. Accordingly, Defendants have not established that the notice to quit was defective as a matter of law. Therefore, they are not entitled to summary judgment in their favor as to the 3-day notice.

24. Verification – Plaintiff argues that the verification of the Complaint was improper because Code of Civil Procedure §446 requires that verification by a corporate party must be done by an officer of the corporation. Plaintiff contends that the statute “leaves no room for ‘agents’ or ‘property supervisors’.”

25. As noted in Bittleston Law & Collection Agency v. Howard (1916), “the clause in section 446, providing for verification of a pleading by an officer when [a] corporation is a party, is not exclusive. It is permissive only, and does not exclude an attorney or other person from making the verification in a proper case.” Id. at 362. The verification in question here is by the attorney for the Plaintiff, which CCP §446 expressly provides for so long as (1) the party is absent from the county where the attorney has his office, and (2) the affidavit states the attorney has read the pleading and that he is informed and believes the matters therein to be true.

26. There is nothing in the pleadings or the evidence submitted by the parties in the motion to indicate that Plaintiff Dallin, LLC is located in Los Angeles county. The affidavit by Plaintiff’s attorney further states that “Plaintiff is absent from the County of Los Angles, California, where [counsel has its] office.” Complaint, verification. Moreover, the affidavit states that Ms. Hernandez has “read the attached Complaint for Unlawful Detainer and know its contents. [She is] informed and believe[s], and on that ground allege[s], that the matters stated in it are true.” Id.

27. Accordingly, it cannot be said that the Complaint’s verification is defective or fails to conform to statutory requirements. Defendants are therefore not entitled to summary judgment on this fact.

28. Based on the foregoing, the motion of Defendants Darrell Floyd, Damon Bruce, Jannel Bruce, and Dijon Bruce for summary judgment is DENIED.

SO ORDERED AND ADJUDGED this the ______ day of May, 2014.

_____________________________
RANDOLPH A. ROGERS, JUDGE