Response Reply

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

Phillip G. Vermont, SBN 132035 Dominique Jacques, SBN 290036 RANDICK O'DEA TOOLIATOS VERMONT 4 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 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. Date: Time: Dept.: August 6, 2020 9:15 a.m. 11 Trial Date: August 6, 2020 Case No.: 20CV362450 REPLY TO OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [UNLAWFUL DETAINER- COMMERCIAL] 19 20 22 23 25 26 27 28 I. INTRODUCTION Plaintiff First Point Oakmead LLC, a Delaware limited liability company ("Plaintiff ') has submitted its Motion for Summary Judgment against MiaSole Hi-Tech Corp., a California corporation ("Defendant"). Defendant has only opposed Plaintiff s Motion on the basis that "PLAINTIFFS [sic] DAILY RENTAL VALUE CLAIM FOR DAMAGES SHOULD ONLY BE IN THE [sic] OF $ 1,247,198.70". (Opposition to Motion for Summary Judgment 1:19-20.) Defendant appears to agree with the calculation for the daily rental value claimed by Plaintiff, but only for the accumulation of it through the March 13, 2020, date on which it was calculated in total by Tamra Gaspar in her declaration. Defendant does not clarify why it believes daily REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT - CASE NO. 20CV362450 ne51 doc Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/30/2020 10:04 AM Reviewed By: M Vu Case #20CV362450 Envelope: 4683949 20CV362450 Santa Clara - Civil M Vu 1 rental value should be so limited, or provide any facts or supporting case law to support such 2 claim. 3 II. STATEMENT OF FACTS 4 For the sake of brevity, Plaintiff hereby incorporates the Statement of Facts alleged in 5 Plaintiff s Motion for Summary Judgment. The following facts are additionally relevant to this 6 Reply. 7 In its Complaint, Plaintiff seeks past-due rent of $689,560.06, forfeiture of the agreement, 8 reasonable attorney fees, and holdover damages at the rate of $7,558.78 per day, from October 1, 9 2019 for each day that defendants remain in possession through entry of judgment. (Complaint 10 $17.) 11 In the Declaration of Tamra Gaspar ("Gaspar Dec."), the senior manager of operations 12 for the property manager of Plaintiff, Ms. Gaspar, calculated the fair daily rental value for the 13 Premises at $7,558.78 per day. (Gaspar Dec. f17.) Ms. Gaspar stated that the holdover damages 14 from October 1, 2019, through March 13, 2020, were $ 1,247,198.70, which covered a total of 15 165 days. (Gaspar Dec. $17, In. 1.) 16 Plaintiff has attempted to file its Motion for Summary Judgment on multiple occasions 17 since the March 19, 2020, trial date was first continued. The court was not accepting filings for a 18 significant period of time. On April 6, 2020, when Plaintiff learned the court was accepting 19 certain filings, Plaintiff attempted to submit its Motion to the Court but the filing was rejected on 20 the basis that no pleadings in unlawful detainer matters were being allowed. Plaintiff again 21 attempted to submit the Motion to the court on June 10, 2020, based on the various ordinances 22 then in place. Plaintiff included in its Separate Statement of Facts the additional holdover 23 damages incurred through June 10, 2020, an additional 89 days since the date of Ms, Gaspar's 24 last calculation, based on Ms. Gaspar's calculated daily rental value. However, Motion was 25 again rejected, "Per Emergency Rule re: UD issued by Judicial Council." On June 26, 2020, 26 Plaintiff filed an Ex Parte Application to have its Motion heard, which was granted, and Plaintiff 27 was permitted to file this Motion on July 6, 2020, though the matter could not be heard until 28 REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT - CASE NO. 20CV362450 469691 doc* August 6, 2020. III. LAW The essential elements of a claim for unlawful detainer based on failure to pay rent are: 1. that Plaintiff owns the property; 2, that Plaintiff rented the property to Defendant; 3. that under the Lease, Defendant was required to pay rent in a certain amount; 4. that Plaintiff provided proper notice to Defendant to pay rent or vacate the property; 5. that as of the date of the notice, at least the amount stated in the notice was due; 6. that Defendant did not pay the amount stated in the notice during the period of the notice; and 7. that Defendant is still occupying the property. (CACI 4302.) Proving the amount ofholdover damages owed is not an element of an unlawful 10 detainer action. Defendant has not contested any of these elements and Plaintiff is entitled to have its Motion for Summary Judgment granted. A. HOLDOVER DAMAGES 13 Further, it is well established that "a landlord is entitled to recover as damages the 14 reasonable value of the use of the premises during the time of the unlawful detainer..." (Adler v. 15 16 17 Elphick (1986) 184 Cal.App.3d 642, 649-650.) The amount of damages is the reasonable rental value of the premises during the time that the defendant occupied the property. (Cal. Code of Civ. Proc. $ 1174(b); CACI 4340.) 18 19 Judicial notice may be taken of facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of 20 21 22 reasonable indisputable accuracy. (Evid. Code )452(h).) By way of example, a court may take judicial notice of the day of the week which a certain date fell upon. (Espinoza v. Jlossini (1966) 247 Cal.App.2d 40.) 23 24 25 26 27 Here, Plaintiff has requested in its Complaint holdover damages from October 1, 2019, through the date that possession is returned. Ms. Gaspar calculated in her declaration filed with Plaintiff s Motion that the daily rental value for the real property as $7,558. 78 per day. Defendant appears to consent to the damages claimed in Ms. Gaspar's Declaration of holdover damages of $ 1,247,198.70 through March 13, 2020, based on the daily rental value calculated by REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT - CASE NO. 20CV362460 449551 docc 10 Ms. Gaspar, but not thereafter without explanation. Pursuant to statute and case law, Plaintiff is entitled to holdover damages of $ 7,558.78 through the date that possession is returned, which has not yet occurred. Defendant does not claim otherwise in its Opposition. This court may take judicial notice of the amount of days that have passed during which Plaintiff is entitled to holdover damages. There is no case law that requires Plaintiff to accurately predict the exact date that Defendant will vacate the premises in order to be awarded holdover damages. Plaintiff has provided a declaration, without opposition, that the daily rental value of the real property is $7,558.78. This Court is capable of the calculations thereafter itself. To assist the Court with its calculations, Plaintiff calculates the days during which holdover damages are owed through the date of the hearing on this Motion, August 6, 2020, as follows: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 October 1-31, 2019: 31 days November 1-30, 2019: 30 days December 1-31, 2019: 31 days January 1-31, 2020: 31 days February 1-29, 2020: 29 days March 1-31, 2020: 31 days April 1-30, 2020: 30 days May 1-31, 2020: 31 days June 1-30, 2020: 30 days July 1-31, 2020: 31 days August 1-6, 2020: 6 days Total: 311 days Plaintiff asserts that Defendant has and intends to remain in possession of the real property at issue through at least the date of the hearing on this Motion. Based on the daily rental value calculated by Ms. Gaspar, Plaintiff asserts that $2,350,780.58 in holdover damages will be due as of August 6, 2020. 'owever, Plaintiff defers to the judicial notice of this Court for the dates upon which holdover damages are owed to Plaintiff. 26 27 28 '11 days x 57,558.78 = 52,350,780.58 REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT - CASE NO. 20CV362450 469551 docx 1 IV. CONCLUSION Defendant has presented no argument disputing the elements of Plaintiff's unlawful detainer claim and Plaintiff s Motion should be granted. Defendant only, assumedly, alleges that the daily rental value should not be owed past March 13, 2020, without support. Defendant does not appear to contest the amount claimed in the notice, the daily rental value calculated by Plaintiff, or claim that Defendant has vacated the property. This Court may take judicial notice of the days during which Plaintiff is entitled to holdover damages and determine the damages owed itself, after the Motion is granted. Plaintiff is due holdover damages through the date that possession is returned to Plaintiff under statute and c w, which has not yet occurred. 10 11 Date: July 30, 2020 VE 'DE TOOLIATOS ENT, LLP 12 13 14 lip%'. ermont 15 16 17 18 19 20 21 22 23 24 25 26 28 REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT - CASE NO. 20CV362450 dddddl.de 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: REPLY TO OPPOSITION TO PLAINTIFF'S 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 13 14 15 16 17 18 Attorneyfor Defendant Miasole Hi-Tech Corp. [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 ofbusiness at Pleasanton, California. [x] (By Electronic Service) The above-referenced document was served by electronically mailing a true and correct copy through Randick O'Dea Tooliatos Vermont 4, Sargent, 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 30, 2020, at Pleasanton, California. 19 20 Sue Betti 21 22 23 24 25 26 27 PROOF OF SERVICE 469551.don