26520 Keissel Rd., LLC v. Tammi Wilkerson

Points and Authorities.

After issuing a tentative ruling and holding a hearing on the motion, the Court now issues

its final ruling.

II. EVIDENTIARY OBJECTIONS

Along with its second supplemental brief, Plaintiff files an objection to the declaration of

the Defendant filed in support of her Opposition as the declaration fails to comply with section

2015.5 of the Code of Civil Procedure and Kulshrestha v. First Union Commercial Corp. (2004)

33 Cal.4th 601. Plaintiff requests the court strike Defendant’s Opposition and treat the Motion as

unopposed.

While Plaintiff’s objection under Code of Civil Procedure section 2015.5 is well taken,

the Court OVERRULES the objection as moot. First, Defendant submitted a Code-compliant

declaration with her supplemental brief. While new evidence is generally not allowed in reply

papers for summary judgment motions under section 437c, subdivision (a)(4) of the Code of

Civil Procedure, subdivisions (a) and (b) do not apply to unlawful detainer actions. (Code Civ.

Proc., § 437c, subd. (s).) Moreover, the matter is moot. As set forth below, Plaintiff fails to meet

its initial burden, and it is unnecessary for the court to consider the opposition. (Swanson v.

Morongo Unif. Sch. Dist. (2014) 232 Cal.App.4th 954, 963.)

III. LAW APPLICABLE TO MOTIONS FOR SUMMARY JUDGMENT In an unlawful detainer action, a motion for summary judgment may be made any time

after the answer is filed and on as little as five days’ notice. (Code Civ. Proc., § 1170.7.)

However, the notice period is extended where service is by mail, express mail, or fax. (Code Civ.

Proc., § 1013; Rule of Court, Rule 3.1351, subd. (a).) Code of Civil Procedure section 437c,

subdivisions (a) and (b) do not apply to unlawful detainer actions. (Code Civ. Proc., § 437c,

subd. (s).) Thus, a separate statement is not required. In addition, any opposition or reply may be

made orally at the hearing or in writing. (Rules of Court, Rule 3.1351 subd. (b).)

In an unlawful detainer action, the “...only ‘triable’ issue is the right to possession and

incidental damages resulting from the unlawful detention.” (Cal. Prac. Guide: Landlord-Tenant

§ 8:4, citing Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 385.) The only damages

recoverable in an unlawful detainer action are those directly related to the unlawful detention.

(Cal. Prac. Guide: Landlord-Tenant § 8:6, citing Vasey v. Cal. Dance Co., Inc. (1977) 70

Cal.App.3d 742, 748.)

IV. WHY THE COURT IS DENYING SUMMARY JUDGMENT

Plaintiff moves for summary judgment pursuant to sections 437c and 1170.7 of the Code

of Civil Procedure, arguing it is entitled to a judgment as a matter of law as it has established all

the elements for a right to possession. The Court denies Plaintiff’s Motion in its entirety.1

“The basic elements of unlawful detainer for nonpayment of rent...are (1) the tenant is in

possession of the premises; (2) that possession is without permission; (3) the tenant is in default

for nonpayment of rent; (4) the tenant has been properly served with a written three-day notice;

and (5) the default continues after the three-day notice period has elapsed.” (KB Salt Lake III,

LLC v. Fitness Internat., LLC (2023) 95 Cal.App.5th 1032, 1045.)

Plaintiff fails to meet its initial burden of proving an unlawful detainer against the

Defendant. There must be an existing landlord-tenant relationship or other unlawful detainer

relationship between the parties for an unlawful detainer action to proceed. (Taylor v. Nu Digital

Marketing, Inc. (2016) 245 Cal.App.4th 283, 289; see also Cal. Prac. Guide: Landlord-Tenant

§ 8:47.) In support of its Motion, Plaintiff submits three declarations from Coffelt. In her initial

declaration, Coffelt states, “On January 1, 2024, Defendant Tammi Wilkerson entered into a

rental agreement with Plaintiff for rental of the RV space. Defendant agreed to pay monthly rent

of $650 due on the first day of each month.” In her first supplemental declaration, Coffelt

declares, “According to my rent ledger, defendant rented the space occupied by her RV in May

2024 and moved on it [sic] in June 2024.” In her second supplemental declaration, Coffelt now

states:

Defendant Tammi Wilkerson executed a space rental agreement for recreational vehicle (the rental agreement) with plaintiff on May 26, 2024. She agreed to pay $650.00 as rent every month on the 1 day [sic] of each month and a late fee of $100 if rent is not paid by the 5th of each month. The tenancy commenced on 1 As a preliminary matter, the Court finds Plaintiff waived any defect regarding filing and service of Defendant’s Opposition by arguing on the merits in its second supplemental brief. (Clark v. Stabond Corp. (1987) 197 Cal.App.3d 50, 58-59.)

June 1, 2024. A true and correct copy of the rental agreement signed by the defendant is attached and marked as exhibit “1”.

The rental agreement attached as exhibit 1 to Coffelt’s second supplemental declaration,

however, is purportedly between Defendant and “Olive Dell RV Resort.” Coffelt’s declaration is

silent as to the relationship between Plaintiff and “Olive Dell RV Resort.” Further, Coffelt’s

statements offer different facts as to when the alleged agreement was made, the terms of the

agreement, whether the agreement was oral or written and who the parties to the agreement were.

Based on the foregoing, the Court finds Plaintiff has not satisfied its initial burden of

proving each element of Plaintiff’s cause of action for unlawful detainer. Specifically, Plaintiff

has not proved that a landlord-tenant relationship or other unlawful detainer relationship between

the parties exists.

V. CONCLUSION

Plaintiff’s Motion for Judgment is respectfully DENIED.

IT IS SO ORDERED.

Dated: [TENTATIVE – NOT FINAL] Hon. Joseph B. Widman Judge of the Superior Court

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN BERNARDINO

JOSE ESQUIVEL, Case No.: CIVSB2436488 Plaintiff, [TENTATIVE] ORDER DENYING WITHOUT PREJUDICE MOTIONS v. TO COMPEL FILED BY PLAINTIFF JOSE ESQUIVEL DONALD BISHOP, ET AL., Defendants.

VI. INTRODUCTION

This is a breach of contract action. On December 6, 2024, Plaintiff Jose Esquivel filed his

initial Complaint against Defendants Donald Bishop, Adman Bishop, and Stacey Bishop. The

operative First Amended Complaint (FAC) alleges causes of action for: (1) breach of contract;

(2) breach of implied covenant of good faith and fair dealing; (3) conspiracy to commit fraud; (4)

fraud; and (5) unjust enrichment. Defendants answered.

The FAC alleges that since 2006 and until 2024, Defendants engaged in fraudulent

conduct and enriched themselves by making fraudulent promises to Plaintiff of ownership to The