APPEAL from a judgment of the Superior Court of Los Angeles County. Kenneth R. Freeman, Judge. (Los Angeles County Super. Ct. No. BC360360)
The opinion of the court was delivered by: Doi Todd, Acting P. J.
CERTIFIED FOR PUBLICATION
Plaintiff and appellant Palm Property Investments, LLC, appeals from a
judgment entered in favor of defendants and respondents Fereydoon
(Fred), Simin, Sara, Jacob and Saghar Yadegar (sometimes collectively
the Yadegars) in an unlawful detainer action. The trial court ruled
that appellant failed to meet its burden to show it satisfied the
service requirements of Code of Civil Procedure section 1162.*fn1
Appellant contends that the judgment must be reversed
because the trial court should not have excluded the proof of service
as hearsay and should have considered the effect of the Yadegars'
admission that they were served with a three-day notice to pay rent or
We agree with appellant's first contention and reverse. Because the three-day notice was served by a registered process server, the proof of service should not have been excluded and Evidence Code section 647 applied to establish a presumption of the facts set forth therein.
FACTUAL AND PROCEDURAL BACKGROUND
Since 2002, the Yadegars have leased a penthouse apartment in a seven-unit building located at 408 North Palm Drive in Beverly Hills (Property). On August 12, 2002, the Yadegars entered into a lease agreement (Lease) with the Teitler Family Trust (Trust), then the owner of the Property. The first two pages of the Lease were a standard form lease drafted by the Trust's representative, Tracy P. Pieper (Pieper), and the third was a one-page addendum drafted by Fred Yadegar (Fred). The standard form portion of the Lease indicated a lease term of one year and a rental amount of $3,500 per month. The one-page addendum modified those terms, extending the lease term to three years and increasing the rent to $3,600 per month in the second year and $3,700 per month in the third year.
On March 30, 2003, Pieper and Fred entered into a second addendum to the Lease, which modified the rent amount according to a sliding scale that corresponded to the number of months in advance rent was paid. On June 23, 2003, Pieper and Yadegar entered into a third addendum, which provided that rent would be reduced to $32,000 annually in exchange for a 12-month advance rent payment, with the Yadegars receiving credit for a previous $18,000 prepayment. The third addendum also provided that there would be no rent increases during the term of the Lease and extended the lease term for five years to November 30, 2010, with one option to extend the Lease for an additional five years to November 30, 2015.
In December 2003, Enpalm, LLC, and Pico 26, LLC (collectively Enpalm), acquired the Property from the Trust. Alleging that it was unaware of the Yadegars' long-term lease at the time it purchased the Property, Enpalm filed its first action against the Trust and the Yadegars in August 2004. The trial court granted the Trust's and the Yadegars' motion for judgment in June 2006.
Enpalm then filed an unlawful detainer action against the Yadegars, which challenged the authenticity of the Lease. In a statement of decision following a bench trial, the trial court ruled that the third addendum to the Lease was enforceable against Enpalm. Accordingly, it found that neither a three-day nor a 30-day notice to quit was appropriate, because the Yadegars were not in violation of the Lease and were operating under a Lease that did not expire until 2010. Judgment was entered in June 2007. In January 2008, the trial court ordered Enpalm to pay the Yadegars $109,062.50 in attorney fees and $1,993 in costs.
In an unpublished opinion, we affirmed, rejecting Enpalm's argument that the term of the Yadegars' tenancy had been litigated in the first action and determined to be month-to-month. (Enpalm v. Yadegar, case No. B201175, filed December 30, 2008.) In April 2009 the trial court entered an award of attorney fees and costs on appeal, ordering Enpalm to pay the Yadegars $70,770 in attorney fees and $552.25 in costs.
While the appeal was pending, the Yadegars learned that the Property was in foreclosure and advised the deed of trust holders of their intention to withhold their rent as an offset to the amounts due them under the judgments. Beginning in March 2009, the Yadegars stopped ...