Judge: Andrew E. Cooper, Case: 24CHCV02567, Date: 2025-04-29 Tentative Ruling

Case Number: 24CHCV02567    Hearing Date: April 29, 2025    Dept: F51

Dept. F-51¿¿ 

Date: 4/29/25

Case #24CHCV02567

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

MOTION FOR SUMMARY JUDGMENT

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Motion Filed: 1/14/25

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MOVING PARTY: Plaintiff/Cross-Defendant Gershman Properties, LLC (“Plaintiff”)

RESPONDING PARTY: Defendants/Cross-Complainants Harutyun Arto Bicakci; and Arlet Bicakci (collectively, “Defendants”)

NOTICE: OK¿ 

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RELIEF REQUESTED: An order granting summary judgment in favor of Plaintiff and against Defendants on Plaintiff’s complaint and Defendants’ cross-complaint.

TENTATIVE RULING: The motion for summary judgment is granted.

BACKGROUND

This is a contract action, wherein Plaintiff, the owner of a retail shopping center located at 27655 Bouquet Canyon Road, Suite C3, Saugus, California 91350, alleges that Defendants, as lessees, breached their lease agreement and owe Plaintiff a total of $225,273.80 in rental payments, remediation costs, and CAM charges. (Compl. ¶¶ 7–34.) On 7/15/24, Plaintiff filed its complaint, alleging against Defendants a sole cause of action for Breach of Written Contract.

On 8/16/24, Defendants filed their answer. On 8/21/24, Defendants filed a cross-complaint, alleging against Plaintiff the following causes of action: (1) Breach of Contract; and (2) Breach of Covenant of Good Faith and Fair Dealing.

On 1/14/25, Plaintiff filed the instant motion for summary judgment, or, in the alternative, summary adjudication. On 4/8/25, Defendants filed their opposition. On 4/15/25, Plaintiff filed its reply.

ANALYSIS

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 65, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381–382.) 

A.    Plaintiff’s Complaint

As to each claim as framed by the complaint, a plaintiff moving for summary judgment has met its “burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc. § 437c, subd. (p)(1).) Once the plaintiff has met that burden, the burden shifts to the defendant “to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Id.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿

Here, Plaintiff’s sole cause of action alleges Breach of Contract against Defendants. To state a cause of action for breach of contract, a plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Here, it is undisputed that under the lease agreement entered into between Defendants and Plaintiff’s predecessor-in-interest, dated 11/22/04, and the subsequent amendments thereto, Defendants agreed to pay monthly rent, CAM charges, taxes, and insurance, with the lease term set to expire on 11/30/24. (MSJ 6:12–8:28.) Plaintiff asserts that “DEFENDANTS failed to pay rent amounts due and owing under the Lease and, on or about September 20, 2023, DEFENDANTS were evicted from the Premises pursuant to a Writ of Possession issued by the Los Angeles County Superior Court.” (Id. at 9:14–16; Defs.’ Opp. 4:23–27.) Based on the foregoing, and the judgment for Plaintiff in the underlying unlawful detainer action, the Court finds that Plaintiff has met its burden to prove each element of its cause of action for Breach of Contract against Defendants. The burden thus shifts to Defendants to show that a triable issue exists or that there is a defense to Plaintiff’s action.

In opposition, Defendants argue that a triable issue exists as to Plaintiff’s claimed damages because “the commercial landlord is required to mitigate these damages by making a good faith attempt to re-let the property.” (Defs.’ Opp. 7:19–20, citing Civ. Code § 1951.2.) However, the Court notes that the statue does not require a commercial landlord to mitigate damages stemming from a breach of the lease agreement, but merely allows for the recovery of mitigated damages among other measures of damages. (Civ. Code § 1951.2, subd. (a)(2).)

Additionally, as Plaintiff observes, “in their responses to Plaintiff’s contention paragraphs number 13 through 16, DEFENDANTS mention discovery responses and letters but fail to attach them as exhibits to either of the declarations. There is therefore no evidentiary support for the Opposition.” (Pl.’s Reply 4:13–15.) Based on the foregoing, the Court finds that Defendants have failed to meet their responsive burden to show that a triable issue exists as to Plaintiff’s Breach of Contract cause of action. Accordingly, the motion is granted as to Plaintiff’s complaint.

B.     Defendant’s Cross-Complaint

As to each claim as framed by the cross-complaint, the cross-defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519–1520.) Once the cross-defendant has met that burden, the burden shifts to the cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.)

Here, Defendants’ cross-complaint alleges Breach of Contract and Breach of the Covenant of Good Faith and Fair Dealing against Plaintiff. Therein, Defendants allege that “in and around 2021 and continuing thereon, there were extensive water leaks on the ceiling of Bouquet Cleaners due to the damaged roof of the commercial building.” (Cross-Compl. ¶ 8.) “From 2021 and thereafter, BICAKCI notified DONAHUE representatives of the leaky ceiling, water dripping onto the equipment and floors apparently caused by the damaged roof.” (Id. at ¶ 9.) “During discussions with DONAHUE representatives, BICAKCI received assurances that BICAKCI would be receive credit due to the leaky roof, which led to damages to debtor’s laundry equipment and floors. Additionally, BICAKCI was informed by Donahue’s representatives that they would get six (6) months free rent as DONAHUE was marketing the property and did not want to have vacancies which would discourage potential buyers.” (Id. at ¶ 10.) Ultimately, Defendants allege that “BICAKCI never received the credit due nor the (6) months free rent from GERSHMAN.” (Id. at ¶ 12.)

Plaintiff argues that “DEFENDANTS contend that in 2021 they negotiated with the prior landlord, Donahue Schreiber Realty Group, L.P. (‘DONAHUE’) a credit due to purported roof leaks, as well as six (6) months free rent. However, DEFENDANTS admitted in their discovery responses that PLAINTIFF was the owner of the shopping center of which the Premises is a part as of March [1]7, 2020. Therefore, any purported negotiations in 2021 with DONAHUE would be of no force or effect, as DONAHUE was no longer the owner of the shopping center.” (MSJ 14:8–14.)

In support of its argument, Plaintiff proffers the 5/17/20 letter, sent to Defendants, notifying them of the change in ownership of the subject property. (Ex. H to Decl. of Heather Butterfield.) Plaintiff further argues that Defendants’ cross-claims are barred by the relevant statues of limitation because “any claims relating to this purported oral contract between DEFENDANT’s and DONAHUE must have been raised no later than 2023. DEFENDANTS Cross-Complaint was filed on August 21, 2024, well past the running of the Statute of Limitations with respect to the alleged oral contract.” (MSJ 17:14–17.)

Based on the foregoing, the Court finds that Plaintiff has met its initial burden to present a defense to Defendants’ cross-complaint. The evidentiary burden thus shifts to Defendants to produce substantial responsive evidence to show that a triable issue of material fact remains.

As Plaintiff observes, “DEFENDANTS provide no evidence that they have been relieved of any obligations to pay amounts due, or releasing them of any obligation to comply with all of the terms and conditions of the Lease through the expiration of the Lease term.” (MSJ 16:1–3.) Additionally, the Court agrees with Plaintiff that “the sworn statements in these documents [the Cross-Complaint and the opposition to the instant motion] make the exact same claims and statements, but the Second Bicakci Dec moves everything back an additional two (2) years (presumably to a date barred by the statute of limitations for claims). The two declarations are fatally contradictory.” (Pl.’s Reply 4:1–4.)

Based on the foregoing, the Court finds that Defendants have failed to meet their responsive burden to show that a triable issue exists as to their causes of action for Breach of Contract and Breach of Covenant of Good Faith and Fair Dealing. Accordingly, the motion is granted as to Defendants’ cross-complaint.

C.    Further Discovery

“If it appears from the affidavits submitted in opposition to a motion for summary judgment … that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” (Code Civ. Proc. § 437c, subd. (h).) “A declaration in support of a request for continuance under section 437c, subdivision (h) must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts.” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 [internal quotations omitted].)

Here, Defendants contend that a continuance should be granted because “discovery could raise disputed facts that are material. Discovery could also raises facts showing other issues such as whether GERSHMAN failed to mitigate its damages after Plaintiff vacated in October 2023.” (Defs.’ Opp. 8:12–15.) Defendants’ counsel further represents that discovery was not propounded earlier in the case because of Defendants’ financial constraints, but that her office is now propounding discovery requests “which I believe would assist in obtaining factual evidence supporting my client’s case prior to a trial.” (Decl. of Aurora Talavera ¶ 6.)

As the Court explains above, Plaintiff is not required to mitigate its damages in order to recover under Civil Code section 1951.2. Therefore, Court finds that Defendants’ counsel’s declaration fails to specify what essential facts are to be obtained through further discovery. Accordingly, the Court denies Defendants’ Code of Civil Procedure section 437c, subdivision (h) request for a continuance of the instant motion.

CONCLUSION

The motion for summary judgment is granted.  Defendant to file proposed judgment within ten days.