Judge: Deirdre Hill, Case: 21TRCV00396, Date: 2023-03-28 Tentative Ruling

Case Number: 21TRCV00396    Hearing Date: March 28, 2023    Dept: M

Hearing Date:                         March 28, 2023

Moving Parties:                      Plaintiff/cross-defendant Stern Realty 1, LP

Responding Party:                  Defendant/cross-complainant Lodi Realty, L.P.

Motion for (1) Partial Summary Judgment on its Claims for Damages and (2) Summary Judgment on its Claim for Declaratory Relief and All Claims in FACC

            The court considered the moving, opposition, and reply papers.

RULING

            The motion is DENIED in its entirety.

BACKGROUND

On May 25, 2021, plaintiff Stern Realty 1, LP d/b/a 2955 Columbia Street Associates filed a complaint against Lodi Realty, L.P. for (1) continuing trespass, (2) continuing nuisance, (3) declaratory relief, and (4) unjust enrichment.

On July 8, 2021, Lodi Realty, L.P. filed a cross-complaint against Stern Realty 1, LP d/b/a 2955 Columbia Street Associates and Baker Bearing Co. for (1) breach of written agreement, (2) declaratory relief, and (3) interference with contractual relationship.

On March 30, 2022, Baker Bearing was dismissed pursuant to stipulation and order.

On November 8, 2022, the court granted Lodi Realty’s motion for leave to amend cross-complaint.

On November 29, 2022, Lodi Realty filed a FACC for (1) breach of oral modification to written agreement, (2) breach of written modification to written agreement, (3) declaratory relief, and (4) interference with contractual relationship.

LEGAL AUTHORITY

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  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.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.  “A plaintiff or cross-complainant has met his or her 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.  Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.  The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”  CCP § 437c(p)(1).

DISCUSSION

            Plaintiff/cross-defendant Stern Realty 1, LP requests (1) “partial summary judgment on its claims for damages” and (2) “summary judgment” on its claim for declaratory relief and all claims in the FACC.

            The complaint alleges that plaintiff is the owner of commercial property located at 2955 Columbia Street, Torrance, consisting of an industrial building and surrounding parking.  Complaint, ¶5.  Defendant is the owner of certain adjacent parcels of commercial real property located at 2925-2935 and 2945 Columbia Street, Torrance, consisting of two industrial buildings and surrounding parking.  Id., ¶6.  On December 24, 1996, Jeffrey Stern and Dixon Harwin, representatives of the prior owners of the subject properties, entered into an agreement to address certain parking lot usage issues between the three buildings (“Agreement”).  Id., ¶7.  The Agreement, sometimes informally referred to as a lease by the parties, contemplated that a fence owned by defendant and located between the 2925-2935 building and the 2955 building which encroached on the 2955 property would be removed upo the expiration of the then-existing lease for the 2945 Columbia Street property.  Specifically, the Agreement provided:  The existing fence south of northerly 2955 Columbia Street property line shall be removed upon expiration or other termination of the current lease for 2945 Columbia Street.  Id., ¶8.  The then-lessee of the 2945 Columbia Street building was Heritage Transfer & Storage.  Id., ¶9.  That lease—the “current lease”—referenced in the Agreement—has since expired.  Id., ¶10. 

            The complaint further alleges that when Heritage Transfer & Storage stopped leasing the 2945 Columbia Street property, the fence owned by and benefiting defendant should have been removed; it was not.  Id., ¶11.  Quality Service Trucking Co. presently conducts business at 2945 Columbia Street.  Id., ¶12.  The fence between the properties has always been an easily removable, chain link fence with a rolling gate.  At some point, and without plaintiff’s permission or prior consent, defendant replaced the original fence and rolling gate with a different chain link fence and gate.  Id., ¶13.  On multiple occasions, plaintiff tried to resolve this issue with defendant, but defendant refused to execute a mutually acceptable arrangement to address the parking situation.  Id., ¶14.  Plaintiff made multiple proposals for a new arrangement that defendant neither accepted nor signed.  Id., ¶15.  Plaintiff’s proposals either expired by their terms or were withdrawn by plaintiff when defendant did not accept in writing.  Id., ¶16.  On February 28, 2021, plaintiff’s counsel sent a formal notice to defense counsel demanding the removal of the fence on or before March 31, 2021.  Id., ¶17.  Plaintiff renewed its demand for removal of the fence on May 19, 2021.  Id., ¶18.  Defendant has failed and refused to remove the fencing located on plaintiff’s property, and  the fence remains on the property as of the date of this filing.  Id., ¶19.  Defendant continues its unauthorized usage of plaintiff’s property, including for storage and parking.  Id., ¶20.  Plaintiff brings this action to obtain restoration of its property rights and to recover its damages.  Id., ¶21.

            Plaintiff is asserting causes of action for continuing trespass, continuing nuisance, declaratory relief, unjust enrichment,

            “Partial summary judgment on its claims for damages”

            The court finds that the notice is defective.  “A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.”  Cal. Rules of Court, Rule 3.1110(a).  See also CCP ¶1010 (“notice of a motion . . . must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.”).  “If summary adjudication is sought, whether separately or as an alternative for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”  Cal. Rules of Court, Rule 3.1350(b).  The notice does not state the ground (there is no mention of CCP §437c) upon which it seeks relief.  Further, the notice refers to “partial summary judgment,” which is improper.  In the reply, plaintiff attempts to equate “partial summary judgment” to summary adjudication.  But the memorandum only refers to CCP 437c(c) [summary judgment], and not to CCP 437c(f) [summary adjudication].  Even if the court were to construe the “partial summary judgment” as summary adjudication, the notice does not identify any specific cause of action upon which summary adjudication can be made.  “In the case of a motion for summary adjudication, the motion must at least identify the specific issues or subissues to be adjudicated.”  Homestead Sav. v. Superior Court (1986) 179 Cal. App. 3d 494, 499.  The notice also requests “summary judgment” as to a cause of action for “declaratory relief,” which is also improper. 

The court finds that the separate statement is fatally defective.  Under CCP §437c(b)(1), “The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.  Each of the material facts stated shall be followed by a reference to the supporting evidence.”  “If summary adjudication is sought, whether separately or as an alternative for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be . . . repeated, verbatim, in the separate statement of undisputed material facts.”  Cal. Rules of Court, Rule 3.1350(b).  “The Separate Statement of Undisputed Material Facts in support of a motion must separately identify:  (A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and (B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.”  Rule 3.1350(d)(1).  Here, the separate statement does not separately identify or repeat verbatim from the notice each cause of action or affirmative defense that is the subject of the motion or the supporting material fact claimed to be without dispute with respect to the cause of action or affirmative defense.  Also, the separate statement fails to comply with Rule 3.1350(d)(3), which states, “[t]he separate statement must be in the two-column format specified in (h).  The statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column.  Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.”  The separate statement is not in a two-column format.  The defects are not “minor” as plaintiff asserts in the reply.  “The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion.”  CCP §437c(b)(1).  The deficiencies are substantive; thus, the court exercises its discretion in denying the motion on this ground.

Even if the court were to construe the motion as one for “summary adjudication” of the causes of action in the complaint, under CCP §437c(f)(1), “[a] party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.  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.” 

Plaintiff improperly seeks “partial summary judgment on all liability elements of” plaintiff’s claims for trespass and nuisance.  “Liability” does not fall under either a cause of action, an affirmative defense, a claim for punitive damages, or an issue of duty.  Also, plaintiff is not seeking to dispose entirely of a cause of action; rather, it “reserves for trial the amount of damages.”

“Summary judgment” of declaratory relief cause of action

Under this cause of action, plaintiff alleges that plaintiff is entitled to a declaratory judgment and a speedy hearing of an action for declaratory judgment.  Complaint, ¶39.  An actual controversy has arisen and now exists between the parties regarding the rights, title, and interests in the parking lot area between the parties’ buildings described above.  Id., ¶40.  Specifically, plaintiff petitions that this court declare that (1) the December 24, 1996 Agreement is expired and of no further force and effect, (2) defendant’s fence is encroaching upon plaintiff’s property rights and must be removed by defendant and/or may be removed by plaintiff, and (3) defendant cease any and all unauthorized access or use of plaintiff’s property.  Id., ¶42.

As stated above, the separate statement is defective, and plaintiff did not properly notice summary adjudication of this cause of action.  Accordingly, the court declines to address the substantive issues.

“Summary judgment” of the FACC

In the FACC, cross-complainant Lodi Realty alleges that on December 24, 1996, Stern and Dixon Harwin, on behalf of their respective owners, entered into a written agreement concerning the 2955 Property, the 2945 Property, and the 2925-2935 Property (“Written Agreement”).  FACC, ¶5.  Stern and Lodi subsequently entered into an oral modification to the Written Agreement.  The modification was made orally between Jeffrey Stern on behalf of Stern and Gay L. Harwin on behalf of Lodi and was also confirmed in writing through emails exchanged between the parties including, the email dated October 16, 2018 from Stern to Harwin and the email dated October 28, 2018 from Harwin to Stern (“Oral Modification”).  The Oral Modification provided that Stern allow Lodi and its 2945 Property tenants to continue the exclusive use of the fenced yard area on the 2955 Property and, in exchange, Lodi agreed to allow Stern and its 2955 Property tenants to concurrently use, on an exclusive basis, five designated parking spaces on the 2925-2935 Property.  Id., ¶6.  Thereafter, over the next 2 ½ years, Harwin and Stern exchanged numerous emails and prepared several draft written agreements to reflect the terms upon which they agreed.  The intent was to reduce these terms and conditions into a formal writing which never happened.  Nevertheless, during the entire time, the terms of the original Written Agreement remained in place.  Id., ¶7.  Through the years, Stern and Lodi acknowledged and abided by the Oral Modification and performed thereunder for over the past 15 years.  During this time, Stern made no demands to terminate the Written Agreement until it first sent a formal notice to Lodi demanding the removal of the fence on February 28, 2021.  Such conduct and performance confirms the terms of the Oral Modification, and estops Stern from disputing its terms.  Id., ¶8.  Lodi detrimentally relied on the Oral Modification in leasing the 2945 Property to tenants including its current tenant, Quality Service Trucking, Inc.  The lease between Lodi and QST is scheduled to expire on September 14, 2023.  Id., ¶9.

The FACC asserts causes of action for breach of oral modification to written agreement, breach of written modification to written agreement, declaratory relief, and intentional interference with contractual relationship.

As stated above, the separate statement is fatally defective, and thus, the court declines to address the substantive issues.  Further, the notice did not properly notice summary judgment of the FACC.

            Evidentiary objections

            The court declines to rule on defendant’s evidentiary objections.  See §CCP 437c(q).

            Accordingly, the motion is DENIED in its entirety.

            Defendant is ordered to give notice of ruling.