Judge Daniel M. Crowley, Case Number: 22STCV39819, Date: 2024-01-23 Tentative Ruling

Defendants HDR Washington, LLC’s, Creative Properties, LLC’s, and Bob Halavi’s motion for summary judgment is granted.

Defendants HDR Washington, LLC (“HDR”), Creative Properties, LLC (“Creative”), and Bob Halavi (“Halavi”) (collectively, “Defendants”) move for summary judgment against Plaintiffs Alfa Enterprise, Inc. dba Van’s Liquor (“Alfa”) and Manjit Singh (“Singh”) (collectively, “Plaintiffs”) on their first amended complaint (“FAC”) on the grounds there are no triable issues of material fact and Defendants are entitled to judgment as a matter of law. (Notice of Motion, pg. 2; C.C.P. §437c.)

In the alternative, Defendants move for summary adjudication on the 1st (breach of quiet enjoyment) [Issue 1], 2nd (breach of contract) [Issue 2], 3rd (breach of implied covenant of good faith and fair dealing) [Issue 3], 4th (fraud and deceit- intentional misrepresentation) [Issues 4, 5, & 11], 5th (fraud and deceit- concealment) [Issues 6 & 11], 6th (negligent misrepresentation) [Issues 7, 8, & 11], 7th (preliminary injunction and permanent injunction) [Issue 9], and 10th (declaratory judgment) [Issue 10] causes of action. (Notice of Motion, pgs. 1-3.)

Defendants’ 1/18/24 evidentiary objections to the Declaration of Singh are overruled as to Nos. 2, 3, 5, 6, 7, 8, 9, and 10, and sustained as to Nos. 1 and 4 (as to “I was so advised by both the previous Landlord and the Seller of the Business.”).

On December 22, 2022, Plaintiffs filed their initial complaint in the instant action against Defendants. On July 31, 2023, Plaintiffs filed the operative FAC against Defendants alleging eight causes of action for (1) breach of quiet enjoyment; (2) breach of contract; (3) breach of implied covenant of good faith and fair dealing; (4) fraud and deceit- intentional misrepresentation; (5) fraud and deceit- concealment; (6) negligent misrepresentation; (7) preliminary injunction and permanent injunction; and (8) declaratory relief. (See FAC.)

On November 9, 2023, Defendants filed the instant motion for summary judgment, or alternatively summary adjudication of issues. (Notice of Motion, pgs. 1-3.) Plaintiffs filed their opposition on January 9, 2024. Defendants filed their reply on January 18, 2024.

Plaintiffs allege this complaint arises from the malicious actions of Defendants concerning the lease of commercial real property located at 12707 Washington Place, Los Angeles 90066 with APN: 4236-020-021 (“Premises”), wherein Plaintiffs’ business is located. (FAC ¶11.) Plaintiffs allege in or about October 2018, Plaintiffs purchased Van’s Liquor, a small retail convenience business from the previous tenant at the Premises and has been operating the business up to this date. (FAC ¶12.)

Plaintiffs allege at the time of the purchase of the business, Plaintiffs obtained an assignment of the certain written Lease Agreement, which was entered into and made by and between Daryl Curtis, Successor Trustee of the Sheltered Trust created under the Glen and Eva Curtis Revocable Family Trust dated May 21, 1998, as landlord (“Original Landlord”) and Mario Kassis and Marsil Kassis, as Tenants (“Original Tenants”), dated 11/1/2015 (“Lease”). (FAC ¶13.) Plaintiffs allege on or about October 19, 2018, the Original Tenants assigned the Lease to Plaintiffs with the written consent of the Original Landlord. (FAC ¶14.)

Plaintiffs allege the original initial lease term was for the period of seven (7) years two (2) months, commencing 11/1/2015 and expiring 12/31/2022, with one (1) option to renew the Lease for the period of additional five (5) years, commencing 1/1/2023 and expiring 12/31/2027. (FAC ¶15.) Plaintiffs allege according to the terms of the Lease, at the “Addendum One to Standard Commercial-Single Tenant Lease-Gross,” it expressly and specifically states in Section 51, in regard to monthly rent as follows:

Section 51. Adjustments to Base Rent During Lease Term: The Base Rent to be paid by Lessee to Lessor during the term shall be as set forth below:

Plaintiffs allege according to the terms of the Lease, especially at the “Addendum One to Standard Commercial-Single Tenant Lease-Gross” as stated above, there shall be no other additional rent, notwithstanding any additional property taxes, at all. (FAC ¶17.) Plaintiff alleges Caldwell admitted that these issues are the result of years of neglect. (FAC ¶17.)

Plaintiffs allege on or about March 5, 2019, Defendants, Creative and HDR purchased the Premises and became a successor-in-interest to the Original Landlord for the Lease, and there exists a privity of contract between Plaintiffs as Current Tenant and Defendants Creative and HDR as Current Landlord of the Premises. (FAC ¶18.) Plaintiffs allege during the entire period of Lease Term, there had never been any demand for additional rent or property taxes by the original landlord of the Premises. (FAC ¶19.)

Plaintiffs allege at all relevant times herein, even after Defendants Creative and HDR became a landlord as a successor in interest to the Original Landlord of the Premises on or about 3/5/2019, they did not demand Plaintiff pay any additional rent or property taxes at all, since the Monthly Rent was based on Single Tenant Lease-Gross, as stated above. (FAC ¶20.) Plaintiffs allege in or about March 2022, for the first time, Defendants Creative and HDR, by and through Defendant Halavi, sent a letter demanding to pay for the property taxes for the period of between: (1) 7/2018 and 6/2019 in the sum of $4,452.36; (2) 7/2019 and 6/2020 in the sum of $13,669.54; (3) 7/2020 and 6/2021 in the sum of $10,357.36; and (4) 7/2021 to 12/2022 in the sum of $4,959.96, alleging that the aggregate total in the sum of $33,439.23 is past due as of 3/29/2022, which Plaintiffs expressly disputed. (FAC ¶21.)

Plaintiffs allege it is quite a surprise to Plaintiffs to receive such notice from the landlord, since the monthly rent is based on the Gross monthly rent, especially according to the Addendum of the Lease, at Section 51, and there have never been any notice or demand about the additional property taxes at all by the landlord over the last 7 years, including the Defendants. (FAC ¶22.)

Plaintiffs allege Since March 29, 2022 and thereafter, Defendants, each of them, and by their agent Aspen Management, threatened Plaintiffs that they would not consent to the Exercise of Option to Extend the Lease and/or terminate the Lease unless Plaintiffs agreed to pay the aforesaid Property taxes in the sum of $33,439.23, even though there is no legal basis to charge the additional property taxes to the Plaintiffs. (FAC ¶23.) Plaintiffs allege it became obvious now that Defendants Creative Properties and HDR, by and through Defendant Halavi, sent such a notice with an ulterior motive to increase the monthly rent and/or to charge the additional property taxes, and/or prevent or interfere with the Plaintiffs’ right to “Option to Extend the Lease” and/or to threaten to terminate the Lease before the expiration date of the Lease in December 2027. (FAC ¶24.)

Plaintiffs allege due to the threatening of Defendants, each of them, and under extreme duress, Plaintiff Singh, without waiving any rights, agreed to pay for the alleged property taxes between the period from 7/2018 to 12/2022, in the aggregate sum of $33,439.23 and summarized in writing as follows:

(1) That Tenant agrees to pay $33,439.23 as an additional property tax in 24 equal amount installment payments over 24 months.

(2) That the installment payment is in the sum of $1,394.00 per month, commencing June 1, 2022, until paid in full.

(3) That these installment payments will be sent in a separate check to maintain proper documentation of the balance paid and balance remaining.

(4) That upon tenant’s agreement to pay property taxes, the landlord will consent and accept the Tenant’s Exercise of Option to Extend the Lease until 12/31/2027.

Plaintiffs allege under duress and relying on Defendants promises and representation as stated above, on or about June 3, 2022, Plaintiff Singh sent the first installment payment for property taxes in the sum of $1,394.00 together with the letter summarizing the agreement as above and the monthly rent in the sum of $4,275.00, all of which was received and accepted and deposited by Defendants. (FAC ¶26.)

Plaintiffs allege on or about 6/3/2022, pursuant to terms of the lease, at Section 39 and Section 52, “Option to Extend,” Plaintiffs have properly exercised the Option to extend the lease for additional five (5) years commencing January 1, 2023, until December 31, 2028, by giving a written notice to the Landlord. (FAC ¶27.)

Plaintiffs allege according to the terms of the Lease, the Option to Extend the Lease should be exercised by giving a written notice to the landlord no earlier than nine (9) months but no later than six (6) months prior to the expiration of the Lease, of which the lease term is between 11/1/2015 and 12/31/2022, therefore, the tenant is required to give a written notice of Exercising the Option to Extend the Lease between 4/1/2022 and 6/30/2022. (FAC ¶28.)

Plaintiffs allege they have performed any and all obligations under the Lease, including but not limited to, the payment of rent and installment of property taxes as promised and agreed on or about 5/23/2022. (FAC ¶29.) Plaintiffs allege on or about 6/3/2022, pursuant to terms of the lease, at Section 39 and Section 52, “Option to Extend,” Plaintiffs have properly exercised the Option to extend the lease for additional five (5) years commencing January 1, 2023, until December 31, 2028, by giving a written notice to the Landlord. (FAC ¶30.) Plaintiffs allege pursuant to terms of the lease at Section 39 and Section 52, “Option to Extend”, and proper written notice of exercise of the Option to the landlord, the Lease term was extended commencing 1/1/2023 until 12/31/2027. (FAC ¶31.)

Plaintiffs allege on or about June 20, 2022, after they received the Plaintiff’s agreement to pay for the property taxes as additional payment for the last 3 years, and received the first installment payment for property taxes, Defendants, each of them, by and through Halavi, and in conspiracy with each other, sent Plaintiffs a letter, requesting the full payment of the property taxes in lump sum or to agree on early termination of the Lease, and unilaterally changing the material terms of the lease, without any legal basis, in breach of the Lease and Oral Agreement. (FAC ¶32.) Plaintiffs allege further that Defendants threatened to evict the Plaintiffs, alleging that the Lease term would terminate on 12/31/2022, and that Plaintiff must vacate the Premises. (FAC ¶33.)

Plaintiffs allege on or about 6/27/2022, Plaintiffs, by and through their counsel, sent a responsive letter stating that the Option to Extend the Lease has already been exercised and the Lease term has been extended until 12/31/2027, and that the installment payment in the sum of $1,394.00 per month has been received and accepted by the Defendants pursuant to the agreement which had been summarized in writing on or about 6/3/2022, and therefore, it may not be rescinded or revoked unilaterally. (FAC ¶34.)

Plaintiffs allege commencing July 2022 and continuing thereafter, Defendants, each of them, and by and through their agent Aspen Management, alleged that the Lease will be terminated because the Option to Extend the Lease was not exercised, and demanded that the total amount of property taxes be paid immediately. (FAC ¶35.) Plaintiffs allege it became obvious that Defendants, each of them, sent such a notice with an ulterior motive to increase the monthly rent and/or to charge the additional property taxes, and/or to prevent or interfere with the Plaintiffs’ right to “Option to Extend the Lease” and/or to threaten to terminate the lease before the expiration date of the Option in December 2027, in breach of the Covenant of Quiet Enjoyment of the Lease, and in breach of the Covenant of Good Faith and Fair Dealing, and in Breach of Oral Agreement. (FAC ¶36.)

Plaintiffs allege Defendants, each of them and in conspiracy with other Defendants, repeatedly harassed Singh by threatening eviction or termination of lease without any legal basis, and also unreasonably trespassed Plaintiffs’ leased Premises without proper notice in advance, with ulterior motives to harass Plaintiffs in breach of the Lease. (FAC ¶38.) Plaintiffs allege since 2018 and up to this date, the Premises was leaking on the roof during the rainy season, and each time it was reported to Defendants, but it continued leaking, and caused the loss of use of the leased premises, and nuisance to Plaintiffs, notwithstanding the business sales loss. (FAC ¶39.)

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (C.C.P. §437c(c).)

A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (C.C.P. §437c(f)(2).) A party may move for summary adjudication as to one or more causes of action within an action if that party contends that the cause of action has no merit. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (C.C.P. §437c(f)(1).)

In the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises. (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588, citing Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841, 846, and Guntert v. City of Stockton (1976) 55 Cal.App.3d 131, 138.) The covenant of quiet enjoyment insulates the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenant’s right to use and enjoy the premises for the purposes contemplated by the tenancy. (Id., internal citations omitted.)

The implied covenant of quiet enjoyment is partially codified in Civil Code §1927, which provides: “An agreement to let upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons lawfully claiming the same.” (Civ. Code §1927.) The statutory covenant “guarantees the tenant against rightful assertion of a paramount title.” (Guntert, 55 Cal.App.3d at pg. 138.) Beyond the statutory covenant, the landlord is bound to refrain from action which interrupts the tenant’s beneficial enjoyment. (Id.)

The implied covenant of quiet enjoyment is breached when there is an eviction, actual or constructive, of the tenant. (Marchese v. Standard Realty & Development Co. (1977) 74 Cal.App.3d 142, 148.) Actual eviction occurs when there is an expulsion or ouster of the tenant by the landlord. (Giraud v. Milovich (1938) 29 Cal.App.2d 543.) Constructive eviction occurs when there is a substantial and material interference with the tenant’s beneficial use and enjoyment of the premises, causing the tenant to vacate. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903.) An interference by the landlord amounts to a constructive eviction if the tenant so elects and surrenders possession, and the tenant will not be liable for rentals following his eviction. Upon surrendering possession of the premises, the tenant is relieved of the obligation to pay rent and may sue for damages or may plead damages by way of offset in an action brought by the landlord to recover any unpaid rent that accrued prior to surrender. (Andrews, 125 Cal.App.4th at pg. 590.)

Alternatively, a tenant may elect to stand upon the lease, remain in possession and sue for breach of contract damages as well as for injunctive relief. (Id.) Minor inconveniences and annoyances are not actionable. (Id. at pgs. 589-590.)

Plaintiffs allege at the time of the Purchase of the business, Plaintiffs obtained an assignment of the certain written Lease Agreement, which was entered into and made by and between Original Landlord and Original Tenants, dated 11/1/2015. (FAC ¶44.) Plaintiffs allege on or about October 19, 2018, the Original Tenants assigned the Lease to Plaintiffs with the written consent of the Original Landlord. (FAC ¶45.) Plaintiffs allege the original initial lease term was for the period of seven (7) years two (2) months, commencing 11/1/2015 and expiring 12/31/2022, with one (1) option to renew the Lease for the period of additional five (5) years, commencing 1/1/2023 and expiring 12/31/2027. (FAC ¶46.)

Plaintiffs allege according to the terms of the Lease, at the “Addendum One to Standard Commercial-Single Tenant Lease-Gross,” it expressly and specifically states in Section 51, in regard to monthly rent as follows:

Section 51. Adjustments to Base Rent During Lease Term: The Base Rent to be paid by Lessee to Lessor during the term shall be as set forth below:

(FAC ¶47.) Plaintiffs allege according to the terms of the Lease, especially at the “Addendum One to Standard Commercial-Single Tenant Lease-Gross,” there shall be no other additional rent, notwithstanding any additional property taxes, at all.” (FAC ¶48.)

and HDR purchased the subject Premises and became a successor-in-interest to the Original Landlord for the subject Lease, and there exists a privity of contract between Plaintiffs as Current Tenant and Defendants Creative and HDR as Current Landlord of the subject Premises. (FAC ¶49.)

Plaintiffs allege Defendants each of them, and in conspiracy with other, breached the covenant of quiet enjoyment of the Lease, by unilaterally attempting to change the material terms of the Lease, and by demanding to pay additional property taxes without any legal basis, further by repeatedly harassing Plaintiffs by

threatening eviction or termination of lease without any legal basis, and also by unreasonably trespassing Plaintiffs’ leased Premises without proper notice in advance, with ulterior motives to harass Plaintiffs in breach of quiet enjoyment of Lease. (FAC ¶72.)

Plaintiffs allege Halavi, as an individual and as officer and agents of Creative and HDR, in concert and conspiracy with each other and with DOE Defendants, have conducted such conducts and fraudulent activities, such that activities of one are attributable to all other defendants. Plaintiffs are informed and believe, and thereon allege, that each corporate defendant agreed to, approved, authorized and ratified the conduct alleged herein. (FAC ¶74.)

Defendants argue there is no triable issue of material fact as to this cause of action because §10.2(a) the Lease states, “lessee shall pay to Lessor the amount, if any, by which real property taxes applicable to the premises increase

over the fiscal year during which the commencement date occurs.” (Defendants’ Disputed Separate Statement of Material Fact [“D-DSSF”] 5; D-COE Exh. D at §10.2; Exh. B at 44:4-10, 53:10-54:6.) Defendants argue Plaintiffs’ allegation that the parties entered into an agreement to pay the taxes in monthly installments is without merit or supporting evidence as Singh admitted in his deposition that Sean Rehbar told him that he needed to confer with his partner to agree on installment payments and later notified Singh that they did not agree to the installment payment plan. (D-DSSF 12-13, 20; D-COE Exh. B at 32:17-21, 34:14-23, 76:8-25, 78:12-17, 82:16-83:2, 94:17-95:1; 109:23-111:12.)

Defendants argue they did not accept Plaintiffs’ attempt to make installment payments and per §39.4(a) of the Lease, Plaintiffs were in default and lost the right to exercise the Option. (Defendants’ Undisputed Separate Statement of Fact [“D-USSF”] 7) (D-DSSF 16-18; D-COE Exh. D at §39.4; Exh. I; Exh. B at 84:19-85:16, 96:7-13, 98:3-14, 106:5-11, 105:24-106:4, 109:9-22.)

Even if there had been such an agreement, the agreement was required to be in writing per Civil Code §1624(a)(1), as it was not to be performed within one year and would, therefore, be invalid.

Further, Plaintiffs have admitted that it has been business as usual and that there has been no disruption to their business or income by Defendants or because of their disagreement relating to property tax or exercise of the option. (D-DSSF 19; D-COE Exh. B at 112:12-114:5.) Defendants met their burden to demonstrate there is no issue of material fact as to the 1st cause of action, shifting the burden to Plaintiffs to raise a triable issue of material issue.

Plaintiffs fail to meet their burden to raise a triable issue of material fact. A party may not create a triable issue of fact to defeat summary judgment merely by means of a self-serving declaration that contradicts his own deposition testimony. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22.) “Where there is a clear and unequivocal admission by a plaintiff, himself in a deposition and the plaintiff contradicts that admission in a subsequent declaration, the court is forced to conclude there is no substantial evidence of the existence of a triable issue of fact.” (Id.)

Here, Plaintiffs’ evidence proffered in support of their separate statement in opposition is a declaration by Singh and exhibits in support that contradict his earlier deposition testimony. (See Plaintiff’s Disputed Separate Statement [“P-DSSF”] 5, 12; Decl. of Singh ¶¶3-4, 8-17, Exhs. 2, 5, 6.) Singh’s earlier deposition testimony contradicts his declaration, and therefore cannot serve as evidence of a triable issue of material fact.

Accordingly, Defendants’ motion for summary adjudication of the 1st cause of action is granted.

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) plaintiff’s performance of the contract or excuse for nonperformance, (3) defendant’s breach, and (4) resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

“When a party’s failure to perform a contractual obligation constitutes a material breach of the contract, the other party may be discharged from its duty to perform under the contract. Normally the question of whether a breach of an obligation is a material breach excusing performance by the other party is a question of fact. Whether a partial breach of a contract is material depends on ‘the importance or seriousness thereof and the probability of the injured party getting substantial performance.’ ‘A material breach of one aspect of a contract generally constitutes a material breach of the whole contract.’” (Brown v. Grimes (2011) 192 Cal.App.4th at pgs. 277-278, internal citations omitted.)

Defendants argue Plaintiffs not only failed to perform the obligations required under the lease, but by the default gave up their right to exercise the option to extend the lease.

Defendants submitted evidence, as stated with regard to the 1st cause of action, that in §10.2(a) of the Lease Agreement, Plaintiffs were obligated to “pay the Real Property Taxes applicable to the Premises provided, however, that lessee shall pay to Lessor the amount, if any, by which real property taxes applicable to the premises increase over the fiscal year during which the commencement date occurs (“Tax Increase”). (D-DSSF 5.) Defendants submitted evidence that the Lease states payment of any such Tax Increase shall be made by Lessee to Lessor within 30 days after receipt of Lessor’s written statement setting forth the amount due and computation thereof.” (D-DSSF 5.)

Defendants submitted evidence that Plaintiffs did not pay the amount requested and were in default thirty days after the written statement and computation were delivered to Plaintiffs. (D-USSF 9) (D-DSSF 18; D-COE Exh. B at 105:24-106:4, 109:9-22.) Defendants submitted evidence that Singh testified in his deposition that Sean Rehbar would have to check with his partner before agreeing to accept installment payments. (D-DSSF 12; D-COE Exh. B at 32:17-21, 34:14-23, 76:8-25, 78:12-17, 82:16-83:2, 94:17-95:1.) Defendants submitted evidence that Sean later informed Plaintiffs that his partner did not agree to accept installment payments. (D-DSSF 13; D-COE Exh. B at 32:17-33:4, 34:14-35:6, 78:18-24, 82:16-83:2.) Defendants met their burden to demonstrate there is no issue of material fact as to the 2nd cause of action, shifting the burden to Plaintiffs to raise a triable issue of material fact.

Plaintiffs fail to meet their burden to raise a triable issue of material fact. First, Plaintiffs’ opposition admits that the agreement regarding installment payments was oral. (See Opposition, pg. 7.) A written modification is required, or this type of agreement is invalid. (See Civ. Code §1624(a).) Second, Singh’s sworn deposition testimony admits that he was informed by Defendants that they did not agree to any installment payments for outstanding property taxes and that they would not accept Plaintiffs’ attempted option to extend the lease term until their account was current. (See D-DSSF 16-18.) Further, Plaintiffs fail to dispute by any competent, admissible evidence that all monies sent by Plaintiffs as attempted installment payments for property tax were not accepted by Defendants. Therefore, Plaintiffs’ argument that Defendants waived enforcement of the written modification of the Lease by receiving a check for installment payment of property taxes in unavailing.

Accordingly, Defendants’ motion for summary adjudication of Issue 2 of the 2nd cause of action is granted.

Breach of the Implied Covenant of Good Faith and Fair Dealing (3rd COA) [Against Creative and HDR]

“The implied covenant of good faith and fair dealing rests upon the existence of some specific contractual obligation. ‘The covenant of good faith is read into contracts in order to protect the express covenants or promises of the contract, not to protect some general public policy interest not directly tied to the contract’s purpose.’ . . . ‘In essence, the covenant is implied as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party’s rights to the benefits of the contract.’” (Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031-1032, internal citations omitted.)

Plaintiffs allege that the Option to Extend the Lease had been duly exercised. (FAC ¶105.) However, Plaintiffs were in default of the Lease by failing to pay their allocated share of the increase in property taxes. (D-DSSF 5, 16-18) (D-USSF 7.) By failing to pay such amount within 30 days of being presented with the amount and computation, Plaintiffs were in default, and pursuant to the Lease, had lost the right to exercise the Option. Defendants met their burden to demonstrate there is no issue of material fact as to the 3rd cause of action, shifting the burden to Plaintiffs to raise a triable issue of material fact.

Plaintiffs fail to meet their burden to raise a triable issue of material fact for the same reasons stated regarding the 2nd cause of action.

Accordingly, Defendants’ motion for summary adjudication of Issue 3 of the 3rd cause of action is granted.

“The elements of fraud that will give rise to a tort action for deceit are: ‘(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974, internal quotation marks omitted.) “[A] cause of action for misrepresentation requires an affirmative statement, not an implied assertion.” (RSB Vineyards, LLC v. Orsi (2017) 15 Cal.App.5th 1089, 1102.)

Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Fraud must be pleaded with specificity rather than with general and conclusory allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)

Plaintiffs allege on or about 5/23/2022, Defendants Creative and HDR, by and through Halavi, told Plaintiff Singh as follows:

(1) that the additional Property taxes in the sum of $33,439.23 for the period from 7/2018 until 12/2022 is past due;

(3) that they would not consent to the Exercise of Option to Extend the Lease and terminate the Lease, unless Plaintiffs agree to pay the additional Property taxes in the sum of $33,439.23;

(4) that they would accept the additional property taxes in the aggregate sum of $33,439.23 in 24 installment payment over 24 months;

(5) that the installment payment is in the sum of $1,394.00 per month, commencing June 1, 2022, until paid in full.

(6) That these installment payments will be sent in a separate check to maintain proper documentation of the balance paid and balance remaining.

(7) That upon tenant’s agreement to pay property taxes, the landlord will consent and accept the Tenant’s Exercise of Option to Extend the Lease until 12/31/2027.

Plaintiffs allege thereafter, under duress and relying on Defendants’ promises and representation as stated above, on or about June 3, 2022, Singh sent the first installment payment for property taxes in the sum of $1,394.00 together with the letter summarizing the agreement as above and the monthly rent in the sum of $4,275.00, all of which was received and accepted and deposited by Defendants. (FAC ¶114.)

Plaintiffs allege these representations by Creative and HDR, by and through Halavi, were false, and made with the intent to induce the Plaintiffs to rely on them and to act in reliance to agree to pay for the additional property taxes, and to pay the installment payment in the sum of $1,394.00, Plaintiffs reasonably relied upon

Plaintiffs allege the representations by Creative and HDR, by and through Halavi, were false in that:

(1) that the additional Property taxes in the sum of $33,439.23 for the period from 7/2018 until 12/2022 is NOT past due;

(3) that they did NOT have any intention to consent to the Exercise of Option to Extend the Lease and would terminate the Lease, even though Plaintiffs agree to pay the additional Property taxes in the sum of $33,439.23;

(4) that they would NOT accept the additional property taxes in the aggregate sum of $33,439.23 in 24 installment payment over 24 months;

(5) That upon tenant’s agreement to pay property taxes, the landlord will NOT consent and NOT accept the Tenant’s Exercise of Option to Extend the Lease until 12/31/2027.

Plaintiffs allege Defendants made these promises without any intention to perform from the beginning with the intent to induce the Plaintiffs to rely on them and to act in reliance by agreeing to pay for the additional property taxes in the sum of $33,439.23 in 24 installment payment over 24 months, even though plaintiff is not responsible for the additional property taxes. (FAC ¶117.)

Plaintiffs allege at the time Defendants made these representations, they knew them to be false and not true, and Plaintiffs had no reasonable grounds for not believing them to be true. (FAC ¶118.)

Plaintiffs allege relying on these representations and promises of Defendants, on or about 5/23/2022, Plaintiffs entered into an agreement to pay for the additional property taxes in the sum of $33,439.23 in 24 installment payment over 24 months, and in fact sent the first installment payment in the sum of $1,394.00 on 6/3/2022. (FAC ¶119.)

Plaintiffs allege as a proximate result of Defendants’ fraudulent conduct, Plaintiffs have been damaged in excess of $33,439.23 according to proof at the time of trial. (FAC ¶120.)

Defendants submitted evidence that Singh testified in his deposition that he never spoke or communicated with Halavi and he did not know who he was. (D-DSSF 22; D-COE Exh. B at 30:11-12, 31:14-32:2, 35:13-22, 69:14-18, 115:19-24, 121:4-21; Exh. J.) Defendants submitted evidence that no agreement on an installment payment was reached per Singh’s deposition testimony. (D-DSSF 12, 13, 20; D-COE Exh. B at 32:17-33:4, 34:14-35:6, 60:10-61:3, 76:8-25, 78:12-24, 82:16-83:2, 94:17-95:1, 109:23-111:12.) Defendants submitted evidence that they did not misrepresent any material facts to Plaintiffs regarding the real property taxes or the exercise of the option pursuant to the Lease. (D-DSSF 23, 24; D-COE Exh. D; Exh. E at Addendum One ¶52; Exh. F; Exh. B at 31:19-32:2, 35:13-22, 69:14-18, 115:19-24, 70:5-13, 72:5- 12, 91:15-92:2, 73:16-22, 74:12-22, 77:25- 78:11, 93:8-13, 121:22-25, 32:17-21, 34:14-23, 76:8-25, 78:12-17, 82:16-83:2, 94:17-95:1, 32:17-33:4, 34:14-35:6, 78:18-24, 82:16-83:2, 84:19-85:16, 96:7-13, 98:3-14, 106:5-11, 109:23-111:12, 116:13-117:19.) Defendants met their burden to demonstrate there is no issue of material fact as to the 4th cause of action, shifting the burden to Plaintiffs to raise a triable issue of material fact.

Plaintiffs fail to meet their burden to raise a triable issue of material fact. A party may not create a triable issue of fact to defeat summary judgment merely by means of a self-serving declaration that contradicts his own deposition testimony. (D’Amico, 11 Cal.3d at pgs. 21-22.) Here, Plaintiffs’ evidence proffered in support of their separate statement in opposition is a declaration by Singh and exhibits in support that contradict his earlier deposition testimony. Singh’s earlier deposition testimony contradicts his declaration, and therefore cannot serve as evidence of a triable issue of material fact.

Accordingly, Defendants’ motion for summary adjudication of the 4th cause of action is granted.

“[T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.)

Defendants submitted the same evidence as presented in the 4th cause of action, thereby meeting their burden, and shifted their burden to Plaintiffs to raise a triable issue of material fact as to the 5th cause of action. For the same reasons stated with regard to the 4th cause of action, Plaintiffs fail to meet their burden to demonstrate a triable issue of material fact as to the 5th cause of action.

Accordingly, Defendants’ motion for summary adjudication of 5th cause of action is granted.

“Negligent misrepresentation requires an assertion of fact, falsity of that assertion, and the tortfeasor’s lack of reasonable grounds for believing the assertion to be true. It also requires the tortfeasor’s intent to induce reliance, justifiable reliance by the person to whom the false assertion of fact was made, and damages to that person. An implied assertion of fact is ‘not enough’ to support liability.” (SI 59 LLC v. Variel Warner Ventures, LLC (2018) 29 Cal.App.5th 146, 154, internal citation omitted.)

Defendants submitted the same evidence as presented in the 4th cause of action, thereby meeting their burden, and shifted their burden to Plaintiffs to raise a triable issue of material fact as to the 6th cause of action. For the same reasons stated with regard to the 4th cause of action, Plaintiffs fail to meet their burden to demonstrate a triable issue of material fact as to the 6th cause of action.

Accordingly, Defendants’ motion for summary adjudication of 6th cause of action is granted.

“[A] ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty.” A “cause of action” must be distinguished from the remedy sought: “‘The violation of one primary right constitutes a single cause of action, though it may entitle the injured party to many forms of relief, and the relief is not to be confounded with the cause of action, one not being determinative of the other.’” An injunction is a remedy, not a cause of action. (Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 162, internal citations omitted.)

There is not a cognizable cause of action for preliminary injunction and permanent injunction. (See id.) Further, Plaintiffs’ causes of action based on breach of contract, fraud and deceit, and negligent misrepresentation all fail as a matter of law. Therefore, there is no basis on which injunctive relief can be granted as a remedy.

Accordingly, Defendants’ motion for summary adjudication as the 7th cause of action is granted.

Any person claiming rights with respect to property, a contract, or a written instrument (other than a will or trust) may bring an action for a declaration of the party’s rights or duties with respect to another. The action may be brought before any breach occurs of the obligation regarding which the declaration of rights is sought. (C.C.P. §1060; Market Lofts Community Association v. 9th Street Market Lofts, LLC (2014) 222 Cal.App.4th 924, 931.) However, such declaratory relief requires the existence of an actual, present controversy between the parties over a proper subject. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79; Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 513-514.)

Plaintiffs allege an actual, legal controversy exists between Plaintiffs and Defendants concerning the exercise of the Option and the terms of the Lease.

(FAC ¶149.) Plaintiffs allege they seek a Declaration as follows: (1) that Plaintiffs properly exercised the Option to Extend the Lease with the agreement and acceptance by Defendants, for five (5) more years from 1/1/2023 until 12/31/2027, and (2) That Defendant is not entitled to charge the property taxes in the sum of

$33,429.22, as an additional rent to the tenant pursuant to terms of the Lease. (FAC ¶148.)

Defendants met their burden to demonstrate no present controversy exists based on the Lease, which states, in §10.2(a), “Lessor shall pay the Real Property Taxes applicable to the Premises provided, however, that lessee shall pay to Lessor the amount, if any, by which real property taxes applicable to the premises increase over the fiscal year during which the commencement date occurs (“Tax Increase”). Payment of any such Tax Increase shall be made by Lessee to Lessor within 30

days after receipt of Lessor’s written statement setting forth the amount due and

computation thereof,” and in §39.4(a), “Lessee shall have no right to exercise an Option: . . . (ii) during the period of time any Rent is unpaid (without regard to whether notice thereof is given to Lessee).” (D-USSF 4, 6, 7) (D-DSSF 5, 20). Defendants met their burden to demonstrate there is no triable issue of material fact, shifting the burden to Plaintiffs to demonstrate a triable issue of material fact.

Plaintiffs failed to meet their burden to demonstrate a triable issue of material fact by failing to present admissible evidence.

Accordingly, Defendants’ motion for summary adjudication of the 7th cause of action is granted.

Hon. Daniel M. Crowley

Judge of the Superior Court