Judge: Edward B. Moreton, Jr., Case: 20SMCV01938, Date: 2023-01-23 Tentative Ruling

Case Number: 20SMCV01938    Hearing Date: January 23, 2023    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

MOVING PARTY:                Plaintiff American Commercial Equities Three, LLC

RESPONDING PARTY:       Defendant Marjan Sarshar

BACKGROUND

This case arises from a landlord guarantor dispute.  Plaintiff American Commercial Equities Three, LLC (“Landlord”) owns real property located at 8910 Santa Monica Blvd, West Hollywood, California (the “Premises”).  (UMF No. 1.)  Landlord and Kreation WEHO, LLC (“Tenant”) entered into a written lease agreement (“Lease”) for the Premises.  (UMF No. 2.)  The Lease provided that rent was due and payable in advance on the first day of each month at the rate of $10,250 per month, subject to annual increases.  (UMF No. 4.)  At the time the action was filed, the base rent was $11,536.47 per month.  (UMF No. 5.)  The Lease also obligated Tenant to pay, as additional rent, its pro rata share of common area maintenance expenses, late fees and other Lease charges.  (UMF No. 6.) 

Concurrently with Tenant’s execution of the lease, Defendant Marjan Sarshar (“Guarantor”) executed a written guaranty (“Guaranty”) of the Lease.  (UMF No. 8.)  By way of the Guaranty, Guarantor guaranteed the full performance of the Lease obligations of Tenant.  (UMF No. 9.)  Section 1 of the Guaranty states “Guarantor hereby irrevocably, unconditionally, jointly and severally guarantees the full, timely and complete (a) payment of all rent and other sums payable by Tenant to Landlord under the Lease[.]”  (UMF No. 16.)  Section 3 of the Guaranty states: “This Guaranty is a guaranty of payment and performance, and not of collection.  Upon any breach or default by Tenant under the Lease, Landlord may proceed immediately against … Guarantor[.]”  (UMF No. 17.)  Section 4 of the Guaranty states that “Guarantor hereby waives … any right to require Landlord to enforce its rights or remedies against Tenant under the Lease[.]”  (UMF No. 18.)  Section 5 of the Guaranty states: “Guarantor acknowledges and agrees that such Guarantor’s obligations to Landlord under this Guaranty are separate and distinct from Tenant’s obligations to Landlord under the Lease.”  (UMF No. 19.)

Tenant failed to pay rent that has come due since February 2020 other than for partial payments made in September 2020 and October 2020.  (UMF No. 10.)  As of December 31, 2020, Tenant owed Plaintiff $90,962.55 for unpaid charges due under the terms of the Lease.  (UMF No. 11.)  Pursuant to the Guaranty, because of the material breach of the lease by Tenant, Guarantor is liable for Tenant’s obligations under the Lease.  (UMF No. 12.)  Guarantor owes and has not paid $90,962.55 for unpaid charges due under the terms of the Lease.  (UMF No. 14.) 

Paragraph 9.5 of the Lease provides that any monetary payment due Landlord that is not received when due shall bear interest from the date when due at the rate of 10% per annum or the “maximum interest rate allowed under applicable Laws, whichever is greater.”  (UMF No. 20.)  The amount of $90,962.55 became fixed and ascertainable as of December 1, 2020, so through November 23, 2022, Plaintiff would be entitled to prejudgment interest at 10% per annum in the sum of $18,739.84.  (UMF No. 21.)    

 Paragraph 28 of the Lease provides that the prevailing party in any litigation relating to any provisions of the Lease or any default under the Lease may recover its reasonable attorneys’ fees.  Paragraph 1 of the Guaranty incorporates the provisions of the Lease into the Guaranty.  (UMF No. 22.)

This hearing is on Landlord’s motion for summary adjudication.  Landlord seeks summary adjudication of its first cause of action for breach of guaranty based on matters deemed admitted when Guarantor failed to respond to requests for admissions, including that Guarantor entered into the Guaranty, Tenant owed Landlord $90,962.55, and Guarantor has failed to pay Landlord $90,962.55.  Guarantor has not filed an opposition.     

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 Richfield 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 negate an essential element or to establish 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 its burden, the burden shifts to the opposing 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.)

ANALYSIS

            A party is entitled to judgment on a breach of guaranty claim based upon undisputed evidence that (1) there is a valid guaranty, (2) a party has defaulted, and (3) the guarantor failed to perform under the guaranty.  (Gray1 CPB LLC v. Kolokotronis (2011) 202 Cal.App.4^th 480, 486.)  Landlord has established each of these elements.  Guarantor has been deemed to admit that it entered into a written Guaranty of the Lease for the Premises.  (Plaintiff’s Exs. 5-6.)  Pursuant to the Guaranty, Guarantor is personally liable for Tenant’s obligations under the Lease.  (UMF No. 12.)  Tenant has defaulted and owes Landlord $90,962.55 for unpaid charges due under the Lease.  (UMF Nos. 10-11; Plaintiffs’ Exs. 5-6)  Guarantor has failed to perform under the Guaranty by failing to pay Landlord $90,962.55.  (UMF No. 14; Plaintiffs’ Exs. 5-6.)  Accordingly, the Court will grant the motion for summary adjudication against Guarantor, and Plaintiff is entitled to $90,962.55 in unpaid charges, plus prejudgment interest of $18,739.84 and attorneys’ fees.

CONCLUSION

Based on the foregoing, the Court GRANTS Defendant’s motion for summary adjudication of the first cause of action for breach of guaranty.   Plaintiff shall file a motion for attorneys’ fees within 20 days of this Order. 

DATED: January 23, 2023                                                   ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court