Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant Mike Rafipoor 

RESPONDING PARTY: Plaintiff 9601 Santa Monica, LLC 

BACKGROUND 

This action arises from breach of a commercial lease.  On January 16, 2006, Plaintiff 9601 Santa Monica, LLC (“Landlord”) entered into a lease with Defendant Rodeo Investment, Inc. (“Tenant”) for property located at 9601 N. Santa Monica Blvd, Beverly Hills, California (“Property”).  (Unidsputed Material Facts (“UMF”) No. 1.)  The initial term of the lease was ten years, commencing on May 19, 2006 and ending on May 18, 2016 (the “Original Lease”).  (UMF No. 1.)  As a condition of the Original Lease, Defendant Mike Rafipoor executed a personal guaranty (the “Guaranty”).  (UMF No. 1.)   

On April 20, 2016, Landlord and Tenant entered into a written First Amendment to the Original Lease, whereby Tenant exercised its option to extend the lease by 5 years, commencing on May 19, 2016 and expiring on May 18, 2021.  (UMF No. 2.)  The First Amendment to the Lease states the Original Lease “remains in full force and effect and unmodified, except as modified or amended by this First Amendment.”  (UMF No. 3.)  Rafipoor executed a “Reaffirmation of Guaranty”.  (UMF No. 4.)  The Reaffirmation of Guaranty stated: “Nevertheless for avoidance of doubt and for good and valuable consideration, Guarantor hereby reaffirms the Guaranty of the Original Lease, as amended by the First Amendment.”  (UMF No. 5.)   

In between the Original Lease and the First Amendment, on April 20, 2010, Rafipoor filed a no-asset bankruptcy petition under Chapter 7 of the Bankruptcy Code.  (UMF No. 7.)  Rafipoor failed to schedule the Guaranty in his Chapter 7 bankruptcy schedules.  The Bankruptcy Case was closed, and Rafipoor received his Chapter 7 discharge in July 2013.  (UMF No. 13.)  There was no motion for reaffirmation or an application in front of the Bankruptcy Court to reaffirm the Guaranty.  (UMF No. 6.)   

On August 21, 2020, Plaintiff filed a complaint against Defendants alleging (1) breach of lease, (2) breach of security agreement, (3) breach of guaranty, (4) negligence, (5) waste, (6) nuisance, (7) fraud and (8) negligent misrepresentation.  The third to eighth causes of action are alleged against Rafipoor.   

After the Complaint was filed, Rafipoor moved to reopen his Chapter 7 Bankruptcy which the Bankruptcy Court granted.  (UMF No. 16.)  Rafipoor filed a motion for order to show cause why Plaintiff should not be held in contempt for violation of the bankruptcy discharge.  (UMF No. 17.)  The Bankruptcy Court denied the motion without prejudice.  (UMF No. 18.)   

This hearing is on Rafipoor’s motion for summary judgment or in the alternative for summary adjudication.  Rafipoor argues that (1) Plaintiff’s complaint is barred pursuant to 11 U.S.C. §524(a) because Rafipoor’s discharge in bankruptcy precludes Plaintiff from suing him in this state court action; (2) the reaffirmation of the guaranty after discharge was improper and does not revive the guaranty; (3) all causes of action arise strictly out of the guaranty and hence fail, and (4) any claims of alter ego against Rafipoor also fail because Plaintiff has not alleged a unity of interest and ownership between Rafipoor and Tenant or that there will be an inequitable result if the acts in question are treated as those of the Tenant alone.   

REQUEST FOR JUDICIAL NOTICE  

Rafipoor requests judicial notice of (1) a voluntary petition for relief under Chapter 7 filed in the bankruptcy court, (2) a discharge order issued by the bankruptcy court, (3) a motion to reopen Chapter 7 case, (4) a motion for an order to show cause why Landlord should not be held in contempt for violating the discharge injunction, (5) transcripts of an October 25, 2022 hearing on the contempt motion, and (6) the Ninth Circuit’s decision in Beezley v. California Land Title Co. (9th Cir. 1993) 994 F.2d 1433.  The Court grants the request for judicial notice pursuant to Cal. Evid. Code §§ 425(d), 425(h), and 453.   

Plaintiff requests judicial notice of (1) Defendant’s answer in this action and (2) the Bankruptcy Court’s order dated November 9, 2022, denying Rafipoor’s motion for a contempt order against Plaintiff.  The Court grants the request for judicial notice pursuant to Cal. Evid. Code §§ 425(d), 425(h), and 453.   

EVIDENTIARY OBJECTIONS 

The Court sustains Objection Nos. 1-4 to the Declaration of Mike Rafipoor.   

LEGAL STANDARD  

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 Ritchfield Co. (2001) 25 Cal.4th 826, 843.)  Code Civ. Proc. §437c(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. Minor 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, 67).   

As to each claim as framed by the complaint, a defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element of the claim(s) or by establishing an affirmative defense.  (Code Civ. Proc. §437c(p)(2); Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)  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.)  

Once the defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  (Id.)  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, 166.) 

DISCUSSION 

Rafipoor argues that Landlord’s claims against him are barred pursuant to 11 U.S.C. §524(a) because his discharge in bankruptcy operates to bar any suit against him based on the Reaffirmation of Guaranty.  Landlord argues Rafipoor never alleged his bankruptcy discharge as an affirmative defense in his answer, and therefore, cannot move for summary judgment on the basis of a new, unalleged defense.  (Defendants’ Facts (“DF”) No. 96.)  The Court agrees with Landlord.   

The notice for a motion for summary judgment or adjudication must specify the specific affirmative defense sought to be adjudicated.  CRC Rule 3.1350(b).  In addition, an unalleged affirmative defense cannot support a motion for summary judgment or adjudication.  (Kendall v. Walker (2009) 181 Cal.App.4th 584, 598 (2009) (“(S]ummary judgment cannot be denied on a ground not raised by the pleadings.  In particular, as relevant here, [a] party claiming the right to use water by adverse possession for the statutory time must set up the same as a defense in his answer. Thus, defendants were precluded from raising claims of adverse possession and prescriptive rights when they did not raise these issues in their answer or cross complaint.”) (citations and quotations omitted); California Concrete Co. v. Beverly Hills Sav. & Loan Ass’n (1989) 215 Cal.App.3d 260, 273 (failure to allege a defense in answer precluded summary judgment).) 

In California Concrete, the defendant litigated the action for two years without alleging an affirmative defense based on 12 U.S.C. §1823, a federal statute that protects a bank that acquires assets of an insolvent institution from its liabilities.  The defendant then moved for summary judgment based on the federal statute.  The court held that the defendant waived its statutory defense by failing to raise the defense “at the earliest possible time,” which prejudiced the plaintiff by forcing it to incur significant expense to litigate the merits.  (215 Cal.App.3d at 272-273.) 

Here, Rafipoor seeks summary judgment based on his bankruptcy discharge.  However, Rafipoor failed to allege either his discharge or Section 524 in his answer.  (DF No. 96.)  Moreover, Rafipoor elected to litigate this action on the merits for one-and-a-half years, without seeking leave to amend his answer.  Plaintiff has been severely prejudiced by having to expend significant time and expense to litigate the merits of the case while Rafipoor delayed raising his discharge as a defense.  (DF No. 97.)  As a result, the Court concludes Rafipoor waived his defense.  (See also Forman v. Scott (1964) 231 Cal. App. 2d 340, 343 (a discharge in bankruptcy is a defense which may be waived by the debtor); Davison v. Anderson (1954) 125 Cal. App. 2d Supp. 908, 911-12 (“We think that any bankrupt debtor who actually appears in an action on a debt claimed by him to be discharged in bankruptcy must plead that defense in the action, and if he fails to do so, he waives his right to claim relief under Code of Civil Procedure, section 675b.  Any other rule would allow the bankrupt debtor to lure his creditors into the expenditure of needless time, effort and money, to trifle with the court, and to needlessly take up time of all concerned only to have him defeat the claim by the identical defense that he could have raised long before in the very same proceeding.  This, we believe, would be a travesty on justice, and common sense dictates that it should not be permitted.”).)        

CONCLUSION 

For the foregoing reasons, the Court DENIES Defendant Michael Rafipoor’s motion for summary judgment or in the alternative for summary adjudication. 

 

IT IS SO ORDERED. 

 

DATED: June 20, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court