Nicole Beck v. 24 Hour Fitness USA, LLC

without Plaintiff's permission or consent. (Pl.'s UMF No. 16.) The reasonable rental value of the premises is $1,062.14 per day, and Plaintiff continues to incur damages at that rate for each day Defendant remains in possession. (Pl.'s UMF No. 17.) This evidence allows Plaintiff to meet its burden of showing there is no triable issue of material fact as to its unlawful detainer claim. In opposition, Defendant points to section 1.11 of the lease stating that the tenant may host private events and utilize up to thirty percent of the total dining area for private dining rooms (Def.'s UMF No. 3), and the second floor of the premises has been consistently operated since Tommy's Beverly Hills closed in October 2022 (Def.'s UMF No. 9.)

Defendant specifically provides evidence that the premises was originally designed as an integrated, two-level restaurant venue, and both floors rely on shared infrastructure located on the upper level, including centralized kitchen facilities, such that operation of the lower level necessarily requires use of the upper level. (Ibid.) Defendant argues that use of the first floor constitutes, as a practical and operational matter, use of the premises as a whole, and since commencing operations in 2022, Defendant has made continuous, good-faith efforts to operate a viable restaurant at the premises, initially opening Tommy's Beverly Hills (2022), followed by evolving concepts, including Sur Le Vert (2023), Pink Moon (2023-2025), and Hi-Bake café (2025- 2026), while also hosting over 100 private events consistent with the lease. (Def.'s UMF No. 9.)

Defendant also represents that the "Shambhala" restaurant concept is mischaracterized and was in development only, never actually implemented or constructed (Def.'s UMF No. 10), the notices did not identify valid or enforceable defaults (Def.'s UMF No. 15), and the rate of daily value is not supported by evidence (Def.'s UMF No. 17). Moreover, Defendant points to section 8.2 of the lease as providing that closures beyond Defendant's control are permitted under the lease. (Def.'s UMF No. 5.) The Court finds that there remains a triable issue of material fact as to whether Defendant violated the lease.

Defendant's evidence shows that the lease allows Defendant to host private events, it has implemented various concepts at the property since closing the original restaurant, the closures may have been the result of circumstances beyond Defendant's control, and Defendant did not convert the property into a private club prohibited under the lease. It is for the trier of fact to determine whether Plaintiff has proven its unlawful detainer claim. Accordingly, Plaintiff The Parking Authority of the City of Beverly Hills's Motion for Summary Judgment is DENIED.

Evidentiary Objections Defendant objects to certain statements within the declaration of Logan Phillippo. Defendant's objections are OVERRULED.

Defendant 24 Hour Fitness USA, LLC's Motion to Quash Service of Summons for Lack of Proper Service is GRANTED. Defendant 24 Hour Fitness USA, LLC to give notice. REASONING Request for Judicial Notice Defendant 24 Hour Fitness USA, LLC ("Defendant") requests judicial notice of records from the California Secretary of State website relating to 24 Hour Fitness Corporation and 24 Hour Fitness USA, LLC. Defendant's request is GRANTED pursuant to Evidence Code section 452, subdivision (c).

Analysis

Code of Civil Procedure section 418.10, subdivision (a)(1), provides that a defendant may move to quash service of summons on the ground of lack of jurisdiction of the court over it. Defendant moves to quash service of the summons and complaint upon it on the ground that Plaintiff Nicole Beck ("Plaintiff") failed to serve Defendant in a code-complaint manner. Plaintiff has not filed an opposition to the present motion. While the moving party generally bears the initial burden of proof on its motion, and lack of opposition will not automatically entitle the moving party to prevail on its motion, a party's failure to file an opposition can be considered a concession that the motion is meritorious. (See Sexton v.

Superior Court (1997) 58 Cal.App.4th 1403, 1410.) Moreover, "[w]hen a defendant challenges the court's personal jurisdiction on the ground of improper service of process," as Defendant does here, "the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the

facts requisite to an effective service." (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413, quotation marks omitted.) No proof of service has been filed with the Court, nor does Defendant provide evidence of any proof of service. Nonetheless, Defendant represents that documents including the summons and complaint in this action were "left at a club location in Fullerton, California." (Mot., Wong Decl. P. 2.) As to serving a corporate entity like Defendant, Code of Civil Procedure section 416.10, subdivisions (a) and (b), state that "[a] summons may be served on a corporation by delivering a copy of the summons and the complaint . . . [t]o the person designated as agent for service of a process" or "[t]o the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process."

As to substituted service upon a corporation, Code of Civil Procedure section 415.20, subdivision (a), provides as follows: In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in [Code of Civil Procedure section 416.10, et seq.], a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.

When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing. Code of Civil Procedure section 416.90 also provides that "[a] summons may be served on a person not otherwise specified in this article by delivering a copy of the summons and of the complaint to such person or to a person authorized by him to receive service of process."

Merely leaving papers at a business location, especially where the purported entity who was served is inactive and suspended, is not proper service, and there is no evidence that proper service has occurred here. Accordingly, Defendant 24 Hour Fitness USA, LLC's Motion to Quash Service of Summons for Lack of Proper Service is GRANTED. | Home -->)" -->