Judge: Gail Killefer, Case: 20STCV47017, Date: 2022-08-26 Tentative Ruling
Case Number: 20STCV47017 Hearing Date: August 26, 2022 Dept: 37
HEARING DATE: August 26, 2022
CASE NUMBER: 20STCV47017
CASE NAME: Pico
Rivera Capital, LLC, et al. v. Fitness International, LLC, et al.
MOVING PARTIES: Plaintiffs, Pico Rivera Capital,
LLC, et al.;
OPPOSING PARTIES: Defendants, Fitness International, LLC
TRIAL DATE: November 1, 2022
PROOF OF SERVICE: OK
PROCEEDING: Plaintiffs’ Renewed Motion
for Summary Judgment, or Alternatively, Summary Adjudication.
OPPOSITION: August 12, 2022
REPLY: August
19, 2022
TENTATIVE: The Plaintiffs’ motion
for summary judgment is denied. Defendant is to give notice.
This is a breach of contract action arising in connection
with commercial property located at 8909 Washington Boulevard, Pico Rivera,
California 90660 (the “Premises”). Pico
Rivera Capital, LLC, a California limited liability company; Pico Rivera
Holdings LVT, LLC, a California limited liability company; Pico Rivera Holdings
PH, LLC, a California limited liability company; Pico Rivera Holdings H&K,
LLC, a California limited liability company, as tenants in common dba Pico
Rivera Marketplace (collectively “Pico Plaintiffs”) allege that they own the
Premises.
According to the Complaint, Pico Plaintiffs’ predecessor in
interest, Pico Rivera Plaza Co., L.P. (“PRP”) entered into a written lease with
Defendant Fitness International, LLC (“Fitness International”) on January 13,
2006 for the Premises. On May 1, 2007, PRP and Fitness International entered
into the “Amended and Restated First Amendment to Retail Lease” and on June 12,
2020, Pico Defendants and Fitness International entered into the “Second
Amendment to Lease.” The Complaint alleges that Fitness International is in
arrears in its rental payments in the amount of $416,078.59 which remains due
and owing.
On February 4, 2021, Fitness International filed its
Cross-Complaint against Pico Defendants. According to the Cross-Complaint,
Fitness International has been prohibited from using the Premises during
government-mandated closures due to COVID-19, which frustrated the essential
purposes of the parties’ lease. As of the filing of the Cross-Complaint,
Fitness International alleges that the government-mandated closures for indoor
gyms remain in effect. Fitness International alleges that the
government-mandated closures constitute a Force Majeure Event during which rent
is not due under the lease, and that as such, rent paid during any
government-mandated closures is to be returned and any rent not paid is not due
pursuant to the terms of the lease. Fitness International’s Cross Complaint
alleges the following causes of action: (1) breach of written contract, (2)
common count – monies had and received, (3) common count – monies paid by
mistake, (4) declaratory relief.
On March 12, 2021, Fitness International dismissed the
Cross-Complaint’s first cause of action as to all cross-defendants.
On November 19 2021, the court denied Plaintiffs’ first Motion
for Summary Judgment as to Defendant’s Answer to the Complaint and Defendant’s
Cross-Complaint. (“November 19 Order”)
Plaintiffs now move for a renewed summary judgment, or, in
the alternative, summary adjudication as follows:
1. Plaintiffs
are entitled to judgment against Fitness in the requested principal amount; or
2. In
the alternative, Plaintiffs are entitled to summary adjudication as to the
first cause of action for Breach of Contract.
Plaintiffs’
notice of motion does not comply with CCP § 437c(f)(1), which provides: “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.” Plaintiffs’ noticed issues either
address multiple causes of action within one issue, or one cause of action is
addressed across multiple issues. Further, as Plaintiffs’ entire Complaint
alleges only one cause of action for breach of contract, Plaintiffs ask this
court to twice consider the same issue. Also, the court does note that
Plaintiffs’ notice is fully insufficient as it does not expressly state the two
issues, but instead asks this court to parse through surplusage to find the
relevant issues. Thus, the court will address the motion pertaining to the only
cause of action and the entire complaint together.
Plaintiffs request judicial notice of the following in
support of their motion:
1.
Exhibit 1: Fitness Int'l, LLC v. DDRM Hill
Top Plaza L.P. (C.D.Cal. Oct. 20, 202 1, No. SACV 21 -00142CJC(ADSx)) 2021
U.S. Dist. LEXIS 202670
2.
Exhibit 2: Store SPE LA Fitness, et al. v.
Fitness Int'l, LLC et al., 202 1 U.S. Dist. LEXIS 141913 (2021 ), United
States District Court for the Central District of California.
3.
Exhibit 3: In re CEC Entm't, Inc.,
625 B.R. 344 (U.S. Bk Southern Dist. Texas, Houston Div., 2020).
Plaintiffs’
request is granted. The court has already granted judicial notice of these
exhibits in Plaintiffs’ prior motion for summary judgment. (November 19 Order,
3.)
The
existence and legal significance of this document is a proper matter for
judicial notice. (Evidence Code § 452(h).) However, the court may not take
judicial notice of the truth of the contents of the documents. (Herrera
v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366,
1375.) Documents are only judicially noticeable to show their existence and
what orders were made. The truth of the facts and findings within the
documents are not judicially noticeable. (Lockley v. Law Office of
Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875,
885.)
Defendant
also requests judicial notice of the following in support of its opposition:
4.
Exhibit 4: The March 4,
2020 Proclamation Of A State Of Emergency made by California Governor Gavin
Newsom.
5.
Exhibit 5: World Health
Organization Director-General’s Opening Remarks At The Media Briefing On COVID-10
– 11 March 2020 as kept by the World Health Organization at the website: https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-themedia-briefing-on-covid-19---11-march-2020.
6.
Exhibit 6: The March 12,
2020 Executive Order N-25-20 made by California Governor Gavin Newsom.
7.
Exhibit 7: March 13, 2020
Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus
Disease (COVID-19) Outbreak.
8.
Exhibit 8: March 19, 2020
Executive Order N-33-20 made by California Governor Gavin Newsom.
9.
Exhibit 9: March 16, 2020
Health Officer Order For The Control Of COVID-19 of the County of Los Angeles
Department of Public Health.
10. Exhibit 10: March 21, 2020 Safer At Home Order For Control Of
COVID-19 of the County of Los Angeles Department of Public Health.
11. Exhibit 11: April 10, 2020 Safer At Home Order For Control Of
COVID-19 of the County of Los Angeles Department of Public Health.
12. Exhibit 12: May 13, 2020 Safer At Home Order For Control Of
COVID-19 of the County of Los Angeles Department of Public Health.
13. Exhibit 13: May 26, 2020 Reopening Safer At Work And In The
Community For Control Of COVID-19 Order of the Health Officer of the County of
Los Angeles Department of Public Health.
14. Exhibit 14: June 10, 2020 County of Los Angeles Department of
Public Health – Order Of the Health Officer - Reopening Protocol for Gyms and
Fitness Establishments: Appendix L.
15. Exhibit 15: July 13, 2020 Statewide Public Health Officer Order
issued by the California Department of Public Health.
16. Exhibit 16: July 17, 2020 County of Los Angeles Department of
Public Health – Order Of the Health Officer - Reopening Protocol for Gyms and
Fitness Establishments: Appendix L.
17. Exhibit 17: March 12, 2021 County of Los Angeles Department of
Public Health – Order Of the Health Officer - Reopening Protocol for Gyms and
Fitness Establishments: Appendix L.
18. Exhibit 18: April 2, 2021 Order of the Health Officer of the
County of Los Angeles - Department of Public Health – Reopening Protocol for
Gyms and Fitness Establishments: Appendix L.
19. Exhibit 19: May 5, 2021 Order of the Health Officer of the County
of Los Angeles - Department of Public Health – Reopening Protocol for Gyms and
Fitness Establishments: Appendix L.
20. Exhibit
20: June 11, 2021 Executive Order N-07-21 made by California Governor Gavin
Newsom.
21. Exhibit
21: Complaint filed by plaintiffs/cross-defendants Pico Rivera Capital, LLC;
Pico Rivera Holdings LVT, LLC; Pico Rivera Holdings PH, LLC; and Pico Rivera
Holdings H&K, LLC; as tenants in common doing business as Pico Rivera
Marketplace (together, “Landlord”) in the Los Angeles Superior Court civil
action given case number 20STCV47017.
22. Exhibit
22: April 6, 2022 Opinion and Order filed in the civil action titled BAI
Century LLC v. Fitness International, LLC in the Circuit Court of Cook
County, Illinois as Case No. 2021-L-1322.
23. Exhibit
23: June 8, 2022 Order On Plaintiff’s Motion For Summary Judgment And
Defendant’s Motion For Summary Judgment For Damages filed in the civil action
titled Fitness International, LLC v. Vereit Real Estate, L.P. in the
Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County,
Florida as Case No. 2020-027207-CA-01.
24. Exhibit
24: June 27, 2022 Final Judgment entered in the civil action titled Vereit
Real Estate, L.P., et. al v. Fitness International, LLC in the 14th
Judicial District of the District Court of Dallas County, Texas, as Cause No.
DC-20-18444.
25. Exhibit
25: October 8, 2021 Order Granting Defendant’s Motion For Partial Summary
Judgment in the Superior County of the State of Washington in and for Pierce
County Case No. 21-2-04531-8, ROIC Four Corner Square, LLC v. Fitness
International, LLC.
26. Exhibit
26: June 21, 2022 Minute Order entered in the civil action titled Fitness
International, LLC v. 5900 Wilshire Owner, LLC in the Superior Court of
California, County of Los Angeles, as Case No. 20STCV45181.
27. Exhibit
27: March 18, 2022 Order Denying Plaintiff/Counter Defendant’s [sic] Motion For
Reconsideration filed in the civil action titled National Retail Properties,
LP v. Fitness International, LLC in the Circuit Court for the County of
Wayne, State of Michigan as Case No. 20-014449-CB.
28. Exhibit
28: The Limited Liability Company Articles of Organization and Limited
Liability Company Certificate of Amendment of L.A. Fitness International, LLC
and Fitness International, LLC.
29. Exhibit
29: This Court’s Minute Order dated November 19, 2021 denying Landlord’s prior
Motion for Summary Judgment.
Defendant’s request
is also granted. The existence and legal significance
of this document is a proper matter for judicial notice. (Evidence Code § 452(h).)
However, the court may not take judicial notice of the truth of the contents of
the documents. (Herrera v. Deutsche Bank National Trust Co. (2011)
196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to
show their existence and what orders were made. The truth of the facts
and findings within the documents are not judicially noticeable. (Lockley
v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91
Cal.App.4th 875, 885.)
Defendant’s Objections to Declaration of K. Joseph
Shabani
Objection 1: sustained, hearsay and lack of personal
knowledge. (Evid. Code, §§ 702(a), 1200.) Further, document has not been
authentication and is not self-authenticating.
“The
purpose of the law of summary judgment 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.)¿ CCP § 437c(a)
provides:¿
A party may move for
summary judgment in any action or proceeding if it is contended that the action
has no merit or that there is no defense to the action or proceeding.¿ The
motion may be made at any time after 60 days have elapsed since the general
appearance in the action or proceeding of each party against whom the motion is
directed or at any earlier time after the general appearance that the court,
with or without notice and upon good cause shown, may direct….¿ The motion
shall be heard no later than 30 days before the date of trial, unless the court
for good cause orders otherwise.¿ The filing of the motion shall not extend the
time within which a party must otherwise file a responsive pleading.¿
“The
motion shall be supported by affidavits, declarations, admissions, answers to
interrogatories, depositions, and matters of which judicial notice shall or may
be taken.¿ 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.¿ The failure to comply with this
requirement of a separate statement may in the court’s discretion constitute a
sufficient ground for denial of the motion.”¿ (CCP § 437c(b)(1);¿see also¿Cal.
Rules of Court, rule 3.1350(c)(2) & (d).)¿¿¿
In
analyzing motions for summary judgment, courts must apply a three-step
analysis: “(1) identify the issues framed by the pleadings; (2) determine
whether the moving party has negated the opponent's claims; and (3) determine
whether the opposition has demonstrated the existence of a triable, material factual
issue.”¿ (Hinesley¿v.¿Oakshade¿Town Center¿(2005) 135 Cal.App.4th 289,
294 (Hinsley).)¿ Pursuant to CCP § 437c(p)(1):¿
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).)¿ The court must “view the evidence in the light most favorable
to the opposing party and accept all inferences reasonably drawn therefrom.”¿ (Hinesley,¿135
Cal.App.4th at p. 294;¿Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th
384, 389 [Courts “liberally construe the evidence in support of the party
opposing summary judgment and resolve doubts concerning the evidence in favor
of that party.”].)¿ A motion for summary judgment must be denied where the
moving party’s evidence does not prove all material facts, even in the absence
of any opposition (Leyva v. Sup. Ct.¿(1985) 164 Cal.App.3d 462,
475).¿
In general, a party who asks a court to act in his
or her favor also bears the burden of persuasion (Evid. Code, § 500). Thus,
“from commencement to conclusion, the party moving for summary judgment bears
the burden of persuasion that there is no triable issue of
material fact and that he is entitled to judgment as a matter of law.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850
(emphasis added).)Plaintiffs moving for summary judgment bear the burden
of persuasion that each element of the cause of action in
question has been “proved,” and hence that there is no defense thereto.
Defendants moving for summary judgment bear the burden of persuasion that
one or more elements of the cause of action in question “cannot be
established,” or that “there is a complete defense”
thereto. (CCP § 437c(p)(2); Aguilar, supra, 25 Cal.4th at
850.)
Where plaintiff has the burden of proof at trial by
a preponderance of evidence, defendant “must present
evidence that would require a reasonable trier of fact not to find any
underlying material fact more likely than not—otherwise, he [defendant] would
not be entitled to judgment as a matter of law but would have to present his
evidence to a trier of fact.” (Aguilar, supra, 25 Cal.4th
at 851.) The result is that summary judgment lies only where the opponent
has no case at all (not merely a weak case). (24 Hour Fitness, Inc. v.
Superior Court (1998) 66 Cal.App.4th 1199, 1215, fn. 12—summary judgment
appropriate where defendants establish an affirmative defense as to all claims
against them.)
I.
Analysis
I.
Renewed Motion for Summary
Judgment
C.C.P. § 1008 is the exclusive means for seeking
reconsideration of an order or renewing a motion. (Kerns v. CSE Ins. Group
(2003) 106 Cal.App.4th 368, 384.) “When a motion has been denied in whole or in
part, the moving party may apply again for the same relief at a later time only
on the following conditions: [1)] The motion must be based on “new or different
facts, circumstances or law;” [and] [2)] The motion must be supported by
declaration showing the previous order, by which judge it was made, and what
new or different facts, circumstances or law are claimed to exist.” (C.C.P. §
1008(b); see Graham v. Hansen (1982) 128 Cal.App.3d 965, 969–970.)
“Unlike a motion for reconsideration, there is no time limit under § 1008 for
the renewal of a previous motion.” (See CCP § 1008(b),(e); Stephen v.
Enterprise Rent–A–Car of San Francisco (1991) 235 Cal.App.3d 806,
816.)
First, the Court notes that Plaintiffs have failed to
provide the Court with a declaration showing the Court’s previous order
regarding Defendant’s original Motion for Summary Judgment. ( See C.C.P. §
1008(b).)
Additionally, Plaintiffs’
motion is not based on any new or different facts that weren’t previously
alleged in the first motion. Here, Plaintiffs argue that the renewed
motion has its basis in the final and reconciled number of expenses which were
presented as “estimated,” in Plaintiffs’ first motion for summary judgment
(“First MSJ”). (Reply, 2.) As Defendant
correctly notes, “The Renewed Motion offers no
explanation as to why it could not present evidence of supposed damages
incurred between March 1, 2020 and April 15, 2021 in its Original Motion filed
on September 22, 2021.” (Opp., 3-4.) Further, while Plaintiffs do emphasize the
change from estimated damages to finalized and reconciled damages, Plaintiffs
do not present any evidence to address the entirety of this court’s rulings in
the November 19 Order. Namely, Plaintiffs do not address how this renewed
motion addresses the court’s findings that:
“Here, Plaintiffs argued that when
Defendant agreed to and accepted the benefits of the SAL/Pandemic Amendment,
Defendant clearly contemplated that its business could be the subject of future
shutdown governmental orders. Moreover, Plaintiffs argue that the Lease
retained value for Defendant in that the SAL/Pandemic Amendment afforded
FITNESS the opportunity to improve the property when shutdown, or, in the
alternative, to take several months’ worth of rent abatement. (Shabani Dec. p.
4, Ex. 3; Plaintiffs’ Motion, pp. 6:18–8:20.) While the SAL does not mention
the Pandemic, the facts surrounding its negotiation and execution strongly
suggest that the Pandemic issues were part of the bargain. Accordingly, there
is a triable issue of fact whether the SAL represents a partial or complete
accord and satisfaction to excuse the payment of some or all of the unpaid
rent, and if so, how much. That issue is sufficient to preclude summary
judgment for either party.” (November 19 Order, 15.)
Further, this court ruled that triable issues of material
fact existed as to Plaintiffs’ claimed damages as well:
“Plaintiffs argue that they sustained
damages in the principal of $729,309.05 (exclusive of prejudgment interest,
attorney fees and costs.) As of the date of this motion, Defendant is purported
to be owe past rental payments to Plaintiffs in the amount of $729,309.05.
(Shabani Dec. p. 5-6, Ex. 4.) Plaintiffs have submitted a ledger showing
certain mounts charged to Fitness. Here, the Plaintiffs evidence, the ledger
purported to reflect past-due Rent from Defendant, does not meet Plaintiffs’
their burden of proof under CCP section 437c, because the evidence does not
establish by a preponderance of the evidence the amount of damages claimed by
Plaintiffs.
The ledger provided by Landlord as its
Exhibit 4 shows that certain amounts charged to Fitness are estimates (i.e.
“Estimated Insurance, Estimated Property Tax). The proffered evidence does
provide the actual amounts supposedly owed by Defendant. Nor does the proffered
evidence show how they could be calculated. Plaintiffs’ estimates as to what
the amounts owed under the Lease are not enough to support a fact identifying a
specific dollar amount owed. The proffered fact is not supported by
admissible evidence. (See Objection to Plaintiffs’ Evidence, ¶ 2.)” (Id.)(emphasis
added)
In Plaintiffs’ first motion, they address: (1) the Breach
of Contract claim; (2) Anticipated Defenses regarding the amendments to the
Agreement; (3) the Force Majeure Provision; (4) Other decisions against or
involving the Fitness Force Majeure Provision; (5) Affirmative Defenses of
Impossibility and Frustration of Purpose. (First MSJ, 6-11; First Plaintiffs’
Reply, 6-17.)
Despite the emphasis on the now finalized and
reconciled ledger of damages, Plaintiffs use
essentially the same argument, in that they use nearly identical
separate statements, cite identical caselaw for judicial notice, rely on the
same legal contentions, and argue for this court to make the substantially same
conclusion. (First MSJ, Separate Statement, and Reply; compare
Second Separate Statement filed on April 8, 2022, Second MSJ, and Second
Reply filed on August 19, 2022.) In Plaintiffs’ Renewed
motion reply, Plaintiffs make a distinct contention in that in their reply
papers, Plaintiffs ask this court to adjudicate as to Defendant’s
Cross-Complaint as well, without ever addressing such an issue in their Renewed
motion. (Reply, 4.) Of course, the court will not address new evidence or
contentions in Plaintiffs’ reply papers. A party moving for summary
judgment may not rely on new evidence filed with its reply papers. (San
Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th
308, 316.)
Plaintiffs use the same law, citing in both motions prior
rulings as judicially noticed exhibits. (RJN 1-3.) Plaintiffs also use
identical supporting authorities, precedents, and substantially same evidence
to support both motions. (See First Declaration of K. Joseph Shabani filed on
September 23, 2021, and Renewed Declaration of K. Joseph Shabani filed on April
8, 2022.)
Plaintiffs’ reliance on allegedly finalized and reconciled
ledgers does not constitute ‘new or different facts’ as the provision did not
arise after the Court’s ruling on the original motion, the ledger of damages
was presented several months after the relevant time period had ended. (See
Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1194–1201
[trial court acted in excess of jurisdiction in granting motion for
reconsideration of attorney fees award where party moving for reconsideration
failed to present any new or different law that could not have been cited in
the original motion.].)
Conclusion
Thus,
the court denies Plaintiffs’ Renewed Motion for Summary Judgment for failure to
comply with C.C.P. § 1008(b) which required Defendant to file a declaration
which showed the previous order and the new or different facts on which
Defendant based his renewed motion upon.