BALCO PROPERTIES LTD., LLC vs RMT LANDSCAPE CONTRACTORS, INC.

26CV188697: BALCO PROPERTIES LTD., LLC vs RMT LANDSCAPE CONTRACTORS, INC. 08/20/2026 Hearing on Motion for Summary Judgment filed by BALCO PROPERTIES LTD., LLC (Plaintiff) CRS# 480864120561 in Department 511

Tentative Ruling - 08/19/2026 Lupe Garcia

The Motion for Summary Judgment/Adjudication filed by BALCO PROPERTIES LTD., LLC on 08/03/2026 is Denied.

NOTICE: All attorneys and unrepresented parties who contest the tentative ruling and request an opportunity to present their arguments at the hearing must notify all other parties of their intention to appear by telephone or in person no later than the day before the hearing, by 4:00 p.m. PT. Parties and attorneys must also formally indicate their objection on eCourt and by sending an email message to the Department 511 clerk at Dept511@alameda.courts.ca.gov. The parties and attorneys must clearly indicate in their email messages the name of the case and the case number. The tentative ruling will become the ruling of the Court if the Court has not directed oral argument by its tentative ruling and notice of a party’s intent to appear is not received by the deadline. See California Rule of Court 3.1308(a)(1) and Alameda County Superior Court Local Rule 3.30(d).

The motion of Plaintiff Balco Properties Ltd., LLC for summary judgment against Defendant RMT Landscape Contractors, Inc. for possession and damages in the sum of $93,804.40, pursuant to CCP §§ 437c(p)(1) and 1170.7, is DENIED.

Plaintiff filed its Complaint against Defendant for commercial unlawful detainer, pursuant to CCP § 1161(2), on May 20, 2026. The address of the rental property is 2337 American Avenue, in Hayward. Plaintiff attached a copy of the Three-Day Notice to Pay Rent or Quit to the Complaint. See CCP § 1166(d)(1)(A). Plaintiff alleges in the Complaint that the Three-Day Notice was served on or about May 11, 2026, and that Defendant had until May 19, 2026, “at the latest,” to comply with the notice by paying the amount demanded or relinquishing possession of the property.

Plaintiff filed its motion for summary judgment, including the separate statement, the memorandum of points and authorities, and the declarations of attorney Kevin P. Montee and Graham Westphal, on August 3, 2026. Plaintiff’s proof of service indicates that the motion papers were served on Defendant’s attorney by electronic mail on August 3, 2026. The Court finds that Plaintiff gave Defendant more than ample notice of the hearing. See CCP § 1170.7.

Plaintiff is required to present evidence that would require a reasonable jury to find any underlying material fact supporting its unlawful detainer more likely than not to prevail on the motion for summary judgment. See LLP Mortgage v. Bizar (2005) 126 Cal.App.4th 773, 776. Plaintiff must meet its burden by submitting admissible evidence. See CCP § 437c(d); and Rincon v. Burbank Unified School Dist. (1986) 178 Cal.App.3d 949, 955 (moving party’s obligation to submit admissible evidence exists even if the opposing party also fails to present 26CV188697: BALCO PROPERTIES LTD., LLC vs RMT LANDSCAPE CONTRACTORS, INC. 08/20/2026 Hearing on Motion for Summary Judgment filed by BALCO PROPERTIES LTD., LLC (Plaintiff) CRS# 480864120561 in Department 511 admissible evidence).

Plaintiff, however, is not required to submit evidence to negate the affirmative defenses plead in the Answer as part of its initial burden. See Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App.4th 554, 565. If Plaintiff satisfies its initial burden of production, then Defendant must present admissible evidence in its opposition to demonstrate that triable issues of material fact exist and that a trial is necessary to resolve the factual dispute. See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.

The Court has reviewed the parties’ written submissions and their pleadings. The pleadings define the scope of relevant issues for summary judgment motions. See Hutton v. Fidelity Nat’l Title Co. (2013) 213 Cal.App.4th 486, 493; and Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258. Based on its review of the Complaint, the Court finds that Plaintiff did not state a cause of action against Defendant pursuant to CCP § 1161(2), because its Three-Day Notice to Pay Rent or Quit is facially invalid.

See CCP § 1166(a)(5) (service of a valid notice is a required element of plaintiff’s unlawful detainer cause of action); 2710 Sutter Ventures, LLC v. Millis (2022) 82 Cal.App.5th 842, 860-861 (lessor must show strict compliance with notice requirements); Kwok v. Bergren (1982) 130 Cal.App.3d 596, 599-600 (same). The Court is authorized to review the Three-Day Notice without a request for such review by the parties because it is an exhibit to the Complaint. See Moran v. Prime Healthcare Mgmt., Inc. (2016) 3 Cal.App.5th 1131, 1145-1146.

In this case, Plaintiff’s Three-Day Notice to Pay Rent or Quit to Defendant is dated May 11, 2026, but a proof of service of the notice is not attached. If Plaintiff does not attach a proof of service, the Court may review the allegations in the Complaint regarding service. See CCP § 1166(a)(5). In paragraph 14 of the Complaint, Plaintiff alleges that the Three-Day Notice was served on Defendant “on or about May 11, 2026,” by posting and mail pursuant to CCP § 1162(b)(3). Plaintiff also alleges in paragraph 14 that Defendant had until May 19, 2026, at the latest, to comply with the Three-Day Notice by paying the amount demanded or vacating the premises.

Plaintiff’s Three-Day Notice is invalid because it does not state when it was served and when the three-day period begins and ends. See Eshagian v. Cepeda (2025) 112 Cal.App.5th 433, 459 (three-day notice dated December 19, 2022 is invalid because plaintiff did not attach a proof of service and plaintiff alleges in the complaint that it was served on or about December 20, 2026). The Legislature imposed strict requirements on landlords in CCP § 1161(2), because tenants must determine when they need to comply almost immediately.

Id. In this case, if the Three-Day Notice was served on May 11, 2026, Defendant would have had until May 14, 2026 to take action to comply. Plaintiff’s Complaint, however, states that Defendant could have complied by May 19, 2026, at the latest. If that allegation is accurate, Plaintiff could have served the Three-Day Notice as late as May 14, 2026.

Plaintiff’s motion is also denied because it did not submit admissible evidence to support its claim that Defendant failed to pay its base rent, property taxes, additional rent, and late charges in the aggregate sum of $45,184.73 for the period from March 2026 to May 2026. Plaintiff’s demand in the Three-Day Notice for $35,138.60 is based on Defendant’s partial payments made during the March 2026 to May 2026 period. The Court’s determination is based on its finding that Plaintiff’s President, Graham Westphal, did not provide sufficient testimony regarding the

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV188697: BALCO PROPERTIES LTD., LLC vs RMT LANDSCAPE CONTRACTORS, INC. 08/20/2026 Hearing on Motion for Summary Judgment filed by BALCO PROPERTIES LTD., LLC (Plaintiff) CRS# 480864120561 in Department 511 accuracy of the payment record in the Tenant Ledger attached to his declaration as Exhibit D. The information regarding Plaintiff’s transmission of invoices to Defendant and Defendant’s partial payments is summarized in paragraph 12 of the declaration but Exhibit D is not referenced in his declaration. The admissibility of the facts set forth in Plaintiff’s Exhibit D is critical because they are presented in support of Plaintiff’s claim that Defendant did not pay its rent and additional rent.

Mr. Westphal’s statement that he is the President of Plaintiff and the “custodian” of Balco Properties’ business records is not enough to allow the Court to consider the payment history set forth in the Tenant Ledger. See Evidence Code § 1271. The Court is permitted to take notice of an “act, condition, or event,” recorded in a business record if Plaintiff provides the necessary foundation. Mr. Westphal did not provide any information in his supporting declaration regarding the timing of Plaintiff’s recording of the invoice and payment information reflected in the Tenant Ledger.

See Evidence Code § 1271(b); and Ramirez v. Avon Products, Inc. (2023) 87 Cal.App.5th 939, 952 (recording must occur at or near the time the act, condition, or event occurs). Mr. Westphal also did not provide testimony regarding the identity of the business record and its mode of preparation. See Evidence Code § 1271(c). Finally, Mr. Westphal did not state in his declaration the source or sources of the information recorded by Plaintiff’s employees, nor did he describe the “method and time of preparation were such as to indicate its trustworthiness.” See Evidence Code § 1271(d); Grail Semiconductor, Inc. v.

Mitsubishi Elec. & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 797-798 (testimony of non-custodian was sufficient to establish the foundation under section 1271); and County of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439, 1448-1450 (custodian of records may not be the individual who observed or recorded the act or event).

Defendant’s Objections to Plaintiff’s Evidence

1. Defendant’s motion to strike the entire declaration of Graham Westphal is DENIED. Defendant has not shown that Mr. Westphal did not review the declaration prior to signing it on July 28, 2026.

2. Defendant’s objection to the statements made by Mr. Westphal regarding service of mailing of the Three-Day Notice to Pay Rent or Quit is OVERRULED.

3. Defendant’s objection to the preparation of the accounting records attached to the declaration of Mr. Westphal as Exhibit C is SUSTAINED.

4. Defendant’s objection to the content of Plaintiff’s Tenant Ledger is SUSTAINED.

5. Defendant’s objections to the unspecified “legal conclusions” and the “blank fee/cost fields” of the declaration are OVERRULED. Defendant did not properly identify the specific content referenced in its objections.

Defendant’s request that the Court continue the hearing on Plaintiff’s motion for summary judgment so that it can propound discovery requests is DENIED.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV188697: BALCO PROPERTIES LTD., LLC vs RMT LANDSCAPE CONTRACTORS, INC. 08/20/2026 Hearing on Motion for Summary Judgment filed by BALCO PROPERTIES LTD., LLC (Plaintiff) CRS# 480864120561 in Department 511 The Court will prepare the order. The court clerk will deliver a copy of the order to the parties. Defendant shall file and serve the notice of entry of order no later than August 26, 2026.