Memorandum Points and Authorities

Cal. Super. - 6th Dist.January 30, 2020

Phillip G. Vermont, SBN 132035 Dominique Jacques, SBN 290036 RANDICK O'DEA TOOLIATOS VERMONT 4Ik SARGENT, LLP 5000 Hopyard Road, Suite 225 Pleasanton, California 94588 Telephone: (925) 460-3700 Facsimile: (925) 460-0969 Attorneys for Plaintiff, First Point Oakmead LLC, a Delaware limited liability company, 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 11 12 13 14 15 16 17 18 19 First Point Oakmead LLC, a Delaware limited liability company, Plaintiff, vs. MiaSole, a California corporation, MiaSole Hi-Tech Corp., a California corporation, and DOES 1 to 25, Defendants. Case No.: 20CV362450 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [UNLAWFUL DETAINER- COMMERCIAL] Date: August 6, 2020 Time: 9:15 a.m. Dept: 11 Trial Date: August 6, 2020 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Plaintiff, First Point Oakmead LLC, a Delaware limited liability company ("Plaintiff' hereby moves for summary judgment of this commercial Unlawful Detainer action. This action is based upon the service of a 5-Day Notice to Pay Estimated Rent or Surrender Premises on or about December 12, 2019 (the "Notice"). It is undis'puted that the Notice was served upon defendant MiaSole Hi-Tech Corp., a California corporation ("Defendant") by mailing the Notice to Defendant at 435 Oakmead Way, Ste. 100, Sunnyvale, CA 94085 (the "Premises") by an overnight delivery service, GSO MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - CASE NO. 20CV362450 474171.444* Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/6/2020 11:18 AM Reviewed By: Y. Chavez Case #20CV362450 Envelope: 4552151 20CV362450 Santa Clara - Civil Y. Chavez 1 Overnight, on December 10, 2019, in conformance with the Lease notice provisions. Based on 2 the Lease, the Notice was deemed given once it was delivered to the Premises on December 12, 3 2019. (Lease art. XVI, Complaint, Exh. 3.) 4 It is also undisputed that Defendant has not paid any of the amounts due, as stated in the 5 Notice, and has not surrendered the Premises. 6 II. STATEMENT OF FACTS 7 In this Unlawful Detainer, Plaintiff seeks summary judgment against Defendant based on 8 the service of the Notice, and the failure of Defendant to pay the estimated rent or surrender the 9 Premises by the Notice deadline. 10 Defendant took possession of the Premises as successor-in-interest to the Lease, pursuant 11 to Consent to Assignment dated July 14, 2014. On or about November 11, 2014, Defendant and 12 Plaintiff s predecessor-in-interest and property manager, The Irvine Company LLC, a Delaware 13 limited liability company ("Irvine") entered into a First Amendment to Lease to extend the 14 Lease. On June 13, 2019, Defendant and Irvine entered into a Second Amendment to Lease to 15 extend the Lease and document base rent increases. 16 Following the default of Defendant in payment of rent, on October 9, 2019, Defendant 17 and Irvine entered into a Third Amendment to Lease documenting that an outstanding balance of 18 $689,560.06 was owed at that time and arranging a payment schedule for the outstanding 19 balance. Payments were due under the Third Amendment to Lease by October 15, 2019. 20 Defendant has failed to pay any amount due under the Lease and Third Amendment to Lease 21 since prior to October 2019. 22 Defendant's predecessor-in-interest, MiaSole, has had its default entered, 23 On December 10, 2019, Plaintiff sent Defendant the Notice by overnight carrier, 24 notifying Plaintiff of the outstanding balance due as of September 2019, the alleged procedure 25 for notice to Defendant under the Lease terms. Defendant has not paid any amounts to reduce 26 this balance and has not paid anything toward rent or holdover damages incurred by Plaintiff 27 since then, despite continued possession of the Premises. 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - CASE NO. 20CU362450 454171 do 1 It is undisputed that the Notice was served and Defendant failed to pay rent or surrender 2 the Premises before the Notice deadline. III. LAW 4 A. SUMMARY JUDGMENT MAY BK MADE IN AN UNLAWFUL DETAINER 5 ACTION. 6 California Code of Civil Procedure (hereinafter, C.C.P., unless specified otherwise) 7 section 1170.7 states as follows: "A Motion for Summary Judgment may be made at any time after the answer is filed upon giving five days'otice. Summary 9 judgment shall be granted or denied on the same basis as a motion under section 437c." 10 California Rules of Court, Rule 3.1351 specifies that for summary judgment in proceedings involving possession of real property, the opposition to the motion and any reply to the 13 opposition may be made orally at the time of the hearing. Any opposition must be filed and served on or before the court day before the hearing. Service must be by personal delivery, facsimile, express mail, or other method reasonably calculated to ensure delivery to the other party or parties no later than the close of business on the court day before the hearing. B. THE COURT MUST APPLY THE STATUTORY PRESUMPTION THAT DEFENDANT RECEIVED THK NOTICE. 19 The Notice was separately provided to GSO Overnight, as stated in the proof of service 20 of Sue Betti, signed under penalty ofperjury, to be provided to Defendant at the Premises. Evidence of the shipping and service of the Notice to Defendant at the Premises, including the shipping label, is attached as Exhibit 3 to the Complaint, and was provided from GSO Overnight. 23 Evidence Code section 641 states that a letter correctly addressed and properly mailed is 24 presumed to have been received in the ordinary course of mail. Defendant has not rebutted this presumption. Therefore, this Court must accept as fact that the Notice sent through GSO Overnight was received by Defendant. 27 Further, in Defendant's Memorandum in Support of Demurrer [to First Amended 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - CASE NO. 20CV362450 Complaint] filed in Santa Clara Superior Court case number 19CV357025, the action preceding this instant action involving prior attempts to evict Defendant from the Premises ("Prior Action"), Defendant admitted to receipt of the Notice. Therefore, service of the Notice on Defendant is undisputed. 5 C. PROPER NOTICE WAS PROVIDED. It is undisputed that the Notice was served on December 12, 2019 by the overnight delivery of the Notice to Defendant and the Premises. Article XVI of the Lease states, in pertinent part, "Any notice....to be given....may be delivered...by courier or overnight delivery service to the other party...at the Premises (whether or not Tenant has departed therefrom, 10 abandoned or vacated the Premises)." Plaintiffprovided to GSO Overnight„an overnight carrier, the Notice to be sent to Defendant at the Premises. GSO Overnight's records show that the 12 Notice was shipped on December 10, 2019 and was delivered, after a few attempts, on 13 December 12, 2019. The signed declaration of Sue Betti under penalty of perjury as to the 14 depositing of the Notice with GSO Overnight, GSO Overnight's label for service, and GSO 15 Overnight's email confirmation of delivery are attached as Exhibit 3 to the Complaint. In Defendant's Memorandum in Support of Demurrer in the Prior Action, Defendant 17 admitted that service of a 5-Day Notice to Pay Estimated Rent or Quit by overnight delivery to 18 Defendant at the Premises was proper. As a result, the Notice was properly given pursuant to the 19 Lease, and there are no issues or material facts to be determined at trial. 20 D. DEFENDANT HAS NOT DISPUTED THE ALLEGATIONS OF THE 21 COMPLAINT OR ALLEGED ANY DEFENSES. 22 Defendant does not contend that it has paid rent or otherwise vacated the Premises, or 23 that such statements in the Complaint are untrue. Instead, Defendant's Answer alleges that it has 24 no information or belief as to any of the statements in the Complaint, except that the agreement 25 between the parties allows for reasonable attorney fees. Defendant has not alleged any defenses 26 to the Complaint. 27 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - CASE NO. 20CV362450 414171 4 Notably, Defendant's alleged lack of information and belief is contrary to its admissions in the Prior Action, in which Defendant alleged that it is the tenant of the Premises. Defendant also filed a demurrer in the Prior Action admitting to being the current tenant of the Premises and alleging that the proper service of the Notice should be by overnight carrier, Through the Prior Action, Defendant has admitted that it is in possession of the Premises pursuant to the Lease attached to the current Complaint. That matter has been dismissed without prejudice and refiled as the demurrer in that matter had been continued by the Court for a new judge to hear it and Plaintiff determined that dismissing and refiling would result in a qtucker trial date. 9 E. DEFENDANT HAS NOT PAID RENT OR VACATED THE PREMISES. 10 12 13 Defendant has not disputed that it has made payments toward rent, or has any defense to its failure to pay rent, or that it has vacated the Premises, Defendant is, in fact, still in possession of the Premises and has not made any payments since the issuance of the Notice to comply with the Notice prior to the Notice deadline. 14 IV. CONCLUSION 15 16 17 18 19 20 21 22 The facts necessary for granting of a motion for summary judgment in this Unlawful Detainer action are undisputed. Plaintiff served Notice on Defendant pursuant to the terms of the Lease, It is also undisputed that Defendant has not paid rent or surrendered the Premises as of the Notice deadline. The Complaint was filed on January 30, 2020, and duly served on all parties. All of the defendants except for Defendant have been defaulted as of March 2, 2020. Defendant continues to occupy the commercial Premises and there are no defenses available to Defendant. For the reasons stated above, summary judgment should be granted as against Defendant. 23 24 Date: June 8, 2020 RAN VERM 25 26 27 By: ~iflii'G Vermont MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - CASE NO. 20CV362460 e417 l.docx PROOF OF SERVICE I, Sue Betti, declare: I am employed in Alameda County, State of California, am over the age of eighteen years, and not a party to the within action. My business address is 5000 Hopyard Road, Suite 225, Pleasanton, California 94588. I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service and/or other overnight delivery. Under overnight delivery practice, all mailings are deposited in an authorized area for pick-up by an authorized express service courier the same day it is collected and processed in the ordinary course of business. On the date set forth below, I served the within: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S 7 MOTION FOR SUMMARY JUDGMENT on the parties in this action by placing a true copy thereof in a sealed envelope, and each envelope addressed as follows: 10 Gary Sullivan, Esq. 1565 The Alameda, Suite 100 San Jose, CA 95126 Email: uwsullivanlawQumail.corn 12 Attorneyfor Defendant MiaSole Hi-Tech Corp. 13 14 15 16 17 [x] (By U.S. Mail) I caused each such envelope to be served by depositing same, with postage thereon fully prepaid, to be placed in the United States Postal Service in the ordinary course of business at Pleasanton, California. (By Facsimile) The above-referenced document(s) was transmitted by facsimile transmission to the number(s) shown and the transmission was reported as complete and without error. I caused the transmitting facsimile machine to issue properly a transmission report, a copy of which is attached to this Declaration. 18 19 20 21 22 23 24 25 [ ] (By Overnight Delivery) I caused each such envelope to be served by depositing same in an authorized area for pick-up by an authorized express service courier (UPS Overnight) the same day it is collected and processed in the ordinary course ofbusiness . [ ] (By Personal Service) I caused each such envelope to be delivered by hand to the persons named above. [x ] (By Electronic Service) The above-referenced document was served by electronically mailing a true and correct copy through Randick O'Dea & Tooliatos LLP's electronic mail system, to the email addresses set forth as listed above, and in accordance with Federal Rules of Civil Procedure, Rule 5(b). I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on July 6, 2020, at Pleasanton, California. 27 28 Sue Betti PROOF OF SERVICE 414171 4