Manhattan Guam, Inc. v. MFJD, LLC

Opinion

IN THE SUPERIOR COURT OF GUAM

2 MANHATTAN GUAM, INC., ) CIVIL CASE NO. CVl165-12 3 ) Plaintiffs, ) DECISION AND ORDER ) Defendant. ) 6 ) 7 )

9 th This case came before the Court on October 29 on the Plaintiffs Verified Complaint for Unlawful Detainer. The parties appeared by counsel and by their agents. The Defendant filed a Verified 10 Answer to Unlawful Detainer on the same day. The Defendant contended that the Complaint should be 11 dismissed for lack of jurisdiction because the Complaint is not verified, and because it overstates the amount of rent due. Concerning the amount due, the Plaintiff stated that the claim is for rent and 12 common area fee for each of the twelve months of nonpayment.

13 To assist the Court on the issue of overstating amount owed, the Plaintiff filed its Opposition to Motion st th 14 to Dismiss for lack of Jurisdiction on October 31 ; the Defendant filed a Reply on November 5 •

15 This action unlawful detainer is governed by 21 G.C.A. 11 21103(b). The plaintiff served a 10 day notice to pay rent or quit on the Defendant on September 27, 2012, asserting $90,000 rent then due an 16 An attached of $90,000 reflects that the monthly rent being claimed combines and a common area fee of 1,500. This is the basis of Defendant's contention that the complaint overstates amount of rent due. The Plaintiff responds by citing California cases 18 approving including the fee with the rent. Bevill v. Zoua, 27 Cal. App. 4th 694, (Cal. Ct. App. 1994) and Canal-Randolph Anaheim, Inc. v. Wilkoski (1978) 78 Cal. App. 3d 477, 492 [144 Cal.Rptr. 474). 19

20 After these words in 11 21103, tenant real property, for a term less than life, is guilty of unlawful detainer:" subsection (b) follows, "When he continues in possession, ... after default in the payment 0 21 rent, pursuant to the lease or agreement under which the property is held, and five (5) days' notice in writing, requiring its payment, stating the amount which is due, or possession of the property, shall have 22 been served upon him, (emphasis added) (It is undisputed that the Defendant remains in section to of rent"; "its payment," which follows, read in context} 23 refers to rent; and "the amount which is due" read in context, refers again to the "payment of rent". 24 There is no ambiguity in the amount of rent: as stated above, Plaintiffs breakdown says it is $7,500 25 monthly, and the lease Agreement, attached to the complaint, says $7,500. In both documents rent is separate from the common area fee. Referring to California cases to assist in deciding whether "rent" 26 includes the common area fee is unwarranted. The parties have clearly stated that the rent does not 27 include the common area fee. See Wasson v. Berg 2007 Guam 161117.

28 The complaint alleges the same $90,000 as the notice to quit had. Section 21108 requires, "In the case the unlawful detainer charged is after default in the payment of rent, the complaint must state the 2 amount of such rent." As described above, the $90,000 is not, according to the lease, the rent for the premises; it is the rent plus common area fee. 3 If[B]ecause an unlawful detention action if a summary remedy, the unlawful detention statute must be 4 complied with strictly." Archbisho p v. G.F.G. Corporation, 1997 Guam 12 If! 10. The notice is defective in that it does not state the rent due; the complaint also fails to state the amount of the rent in default. 5

6 IT IS ORDERED that the motion is granted and the Complaint dismissed without prejudice.

8 SO ORDERED this 16th day of November, 2012 9

10 RICHARD H. BENSON 11 Judge, pro tempore 12