Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Plaintiff/Cross-Defendant One Westside, LLC  

RESPONDING PARTY: Defendant/Cross-Complainant Silver Cinemas Acquisition Co. 

 

BACKGROUND 

This action arises from a landlord-tenant dispute.  Plaintiff and Cross-Defendant One Westside LLC (“Landlord”) is the owner of 10850 W. Pico Boulevard, Los Angeles, California (the “Premises”).  Defendant and Cross-Complainant Silver Cinemas Acquisition Co. (“Tenant”) entered into a lease with Landlord’s predecessor-in-interest for the Premises (the “Lease”).  (Landlord’s Statement of Facts (“SOF”) No. 1.)  The Lease was assigned to Landlord.  (SOF No. 2.)   

Tenant defaulted under the Lease by failing to pay rent.  (SOF No. 10.)  Landlord served a notice of default demanding Tenant pay the past due Rent, but Tenant still failed to cure its default.  (SOF Nos. 9-10.)  Tenant then vacated the Premises before the expiration of the Lease.  (SOF No. 11.)     

Landlord claims it has performed all conditions of the Lease except those conditions which Landlord’s performance or non-performance was excused or justified.  (SOF No. 12.)  Tenant disputes this fact, claiming Landlord breached the Lease by failing to keep an elevator and escalator in good order and by making changes to the common areas that adversely affected Tenant’s business including using a ramp that caused noise and vibration in Tenant’s auditoriums, rendering them unusable whenever traffic was directed over the ramps.  (Tenant’s Response to Landlord’s Statement of Facts (“RSOF”) Nos. 15-18.)   

Landlord claims that pursuant to Article 5.1 of the Lease, Tenant’s rent obligations are not subject to offset or deduction based on any purported disputes with Landlord’s performance under the Lease.  (SOF No. 12.)  Tenant disputes this fact, claiming Article 17.6 of the Lease provides that Tenant could equitably abate the rent owing during any period when Tenant’s business in the Premises shall be “materially interfered with as the result of any work which is performed or other action taken by Landlord[.]”  (RSOF No. 14.) 

Landlord seeks damages in the amount of $3,269,266.50 (comprised of $3,100,268.80 in unpaid rent plus prejudgment interest of $168,897.70).  (SOF No. 13.)  Tenant disputes the amount of damages, claiming it is entitled to a rent abatement.  (RSOF No. 13.) 

This hearing is on Landlord’s motion for summary judgment on its breach of contract claim.  Landlord contends it has established each element of the claim, and Tenant has failed to present any admissible evidence to negate an element of the claim or establish a defense. 

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, the party moving for summary judgment must satisfy the initial burden of proof by presenting facts to establish an essential element or to negate a 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 moving party has met that burden, the burden shifts to the non-moving party 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, 166.) 

REQUEST FOR JUDICIAL NOTICE 

Landlord seeks judicial notice of Ordinance 186606, the Court’s ruling on Landlord’s demurrer of Tenant’s cross-complaint, objections to the declaration of Michael Fant filed in a separate action and an order sustaining those objections.  The Court grants the request for judicial notice pursuant to Evid. Code §§ 451(a), 452(a), (b), (c), (d) and (h) and 453.   

Tenant seeks judicial notice of three declarations filed in a separate unlawful detainer case.  The Court grants the request for judicial notice pursuant to Evid. Code § 452(d), in so far as it takes judicial notice of the existence of the declarations but the Court cannot consider the truth of the matters asserted therein.  (Sosinsky v. Grant (1992) 6 Cal.App.1548, 1564.)     

EVIDENTIARY OJBECTIONS 

The Court sustains the objections to the declarations of Charles Delagrange and Michael Fant and all exhibits attached thereto as inadmissible hearsay.  (Cf. Weber v. Asbestos, 2008 Cal. Super. LEXIS 403 at *4 (deposition transcript in another action constituted inadmissible hearsay).) 

DISCUSSION 

To establish a cause of action for breach of contract, the plaintiff must prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damages to the plaintiff.  (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)             

Landlord has met its initial burden to show there is no disputed issue as to each element of its breach of contract claim.  There is no dispute as to the existence of the contract.  Tenant entered into a Lease with Landlord’s predecessor in interest, and Landlord is the assignee of the Lease.  (SOF Nos. 1-2.)  Landlord has performed all conditions of the Lease.  (SOF No. 12.)  Tenant breached the Lease by failing to pay all rent due and vacating the Premises before the expiration of the Lease.  (SOF No. 11.)  Landlord sustained damages.  (SOF No. 13.)  In support of each of these elements, Landlord filed a declaration from Ashely McGovern, which evidence was not objected to by Tenant.   

Once Landlord established each of the elements of its breach of contract claim, the burden shifts to Tenant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  Tenant has failed to meet its shifted burden. 

Tenant attempts to create a triable issue that Landlord breached the Lease by failing to keep an elevator and escalator in good order and using a ramp that caused noise and vibration rendering Tenant’s auditoriums unusable, thereby entitling Tenant to rent abatement under Article 17.6 of the Lease.  (TSOF Nos. 17-18.)  But it relies on three declarations filed in another action which constitute inadmissible hearsay.   

In Sosinsky, the Court of Appeal affirmed the trial court’s refusal to take judicial notice of factual assertions appearing in court documents from another action which the opposing parties presented in opposition to a motion for summary judgment.  Because moving parties presented evidence which entitled them to judgment in their favor, and because the court would not take judicial notice of documents from the other action, opposing parties in essence presented no evidence in opposition, and the granting of the motion was upheld.  The Court of Appeal reasoned that taking judicial notice of court records does not mean “taking judicial notice of the existence of facts asserted in every document of a court file, including pleadings and affidavits. A court cannot take judicial notice of hearsay allegations as being true, just because they are part of a court record or file.  A court may take judicial notice of each document in a court file but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law and judgment.”  6 Cal.App. 4th at 1564. 

As in Sosinky, the only opposing evidence are records in a separate action, the substance of which the Court cannot take judicial notice.  Because an issue of fact can only be created by a conflict of evidence, and Tenant has not presented admissible evidence to contradict Landlord’s evidence, the Court concludes there is no triable issue on Landlord’s claim for breach of contract.  

CONCLUSION 

Based on the foregoing, the Court GRANTS Landlord’s motion for summary judgment of its complaint.   

 

DATED: March 16, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court