Judge: Gail Killefer, Case: 22STCV24656, Date: 2023-11-17 Tentative Ruling
Case Number: 22STCV24656 Hearing Date: December 6, 2023 Dept: 37
HEARING DATE: Wednesday, December 06, 2023
CASE NUMBER: 22STCV24656
CASE NAME: Tim Quick v. Nancy Veits, et al.
MOVING PARTY: Defendants Nancy Veits, in her
individual capacity, and Nancy Viets, as Managing Partner of Westchester
Triangle 8
OPPOSING PARTY: None
TRIAL DATE: 19 December 2023
PROOF OF SERVICE: OK
PROCEEDING: Motion for Summary
Judgment or Summary Adjudication
OPPOSITION: 30 September 2023
REPLY: 5
December 2023
TENTATIVE: Defendants’ Motion for Summary Judgment is
denied. The court grants summary adjudication as to the first cause of action
for Breach of Contract, and denies summary adjudication as to the second cause
of action for Negligent Interference with Prospective Economic Advantage.
Background
On August 1, 2023, Tim Quick
(“Plaintiff”), in pro se, filed a Complaint against Nancy Veits; Westchester
Triangle 8, John Condon; Chris Belatto; and Does 1 to 10. The operative
Complaint alleges two causes of action: (1) Breach of Contract, and (2)
Negligent Interference with Prospective Economic Advantage.
On
January 31, 2023, Plaintiff dismissed John Condon as a defendant.
On
August 31, 2023, Nancy Veits, in her individual capacity, and Nancy Viets, as
Managing Partner of Westchester Triangle 8 (collectively “Defendants”), moved
for summary judgment, or summary adjudication in the alternative. On November 9,
2023, Defendants filed a Notice of Non-Opposition to their Motion for Summary
Judgment, or summary adjudication in the alternative.
On
November 17, 2023, pursuant to Plaintiff’s Ex Parte Application, the court
granted Plaintiff’s request for a continuance and gave him the opportunity to file
opposing papers. The court also allowed Defendants to file a reply.
The
matter is now before the court.
I. Legal Standard
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. Atl. 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.) Summary adjudication may be granted as to one or more
causes of action within an action, or one or more claims for damages. (CCP, §
437c(f).)¿¿¿¿¿¿¿¿
¿¿¿
A defendant moving for summary judgment bears two burdens:
(1) the burden of production – presenting admissible evidence, through material
facts, sufficient to satisfy a directed verdict standard; and (2) the burden of
persuasion – the material facts presented must persuade the court that the
plaintiff cannot establish one or more elements of a cause of action, or a
complete defense vitiates the cause of action. (CCP § 437c(p)(2);¿Aguilar,¿25
Cal.4th at p. 850-851.) A defendant may satisfy this burden by showing that the
claim “cannot be established” because of the lack of evidence on some essential
element of the claim.¿¿(Union Bank v. Superior Court (1995) 31
Cal.App.4th 574, 590.)¿¿Once the defendant meets this 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 defense thereto.”¿(Id.)¿¿¿¿¿¿¿
¿¿¿
“On ruling on a motion for summary judgment, the court is to
‘liberally construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of that party.’” (Cheal
v. El Camino Hospital¿(2014) 223 Cal.App.4th 736, 760.) On a summary
judgment motion, the court must therefore consider what inferences favoring the
opposing party a factfinder could reasonably draw from the evidence. While
viewing the evidence in this manner, the court must bear in mind that its
primary function is to identify issues rather than to determine issues.
[Citation.]” (Binder v. Aetna Life Ins. Co.¿(1999) 75
Cal.App.4th¿832, 839.)¿¿¿¿
¿¿¿
Defeating summary judgment requires only a single disputed
material fact. (See CCP, § 437c(c) [a motion for summary judgment “shall be
granted if all the papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law.”] [emphasis added].) Thus, any disputed material fact means the
court must deny the motion – the court has no discretion to grant summary
judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana
v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)¿¿¿¿¿
II. Discussion
Plaintiff entered a Commercial Triple Net
(NNN) Lease Agreement (the “Lease Agreement”) with Defendants for a property
located at 6239 W. 87th Street, Los Angeles, CA 90045 (the “Premises”). (Veits
Decl. Ex. A.) Plaintiff’s Complaint alleges that he signed the Lease Agreement
on or about June 1, 2021, but that on or about July 16, 2021, the City of Los
Angeles left a red tag on the Premises informing Plaintiff that he could not
open for business because the unit was not up to code. (Compl. ¶ 29-31, 49, Ex.
A, B.)
The Complaint states that Plaintiff
believed Defendants were working to fix the problems and bring the unit up to
code. Instead, he learned that
Defendants planned to sell the building. (Compl. ¶¶ 45, 46.) Defendants admit
that on or about February 4, 2022, Defendant Westchester Triangle 8 entered
into an agreement with One Cole Group, LLC to purchase the building that
contained the premises. (Veits Decl. ¶ 8.)
Plaintiff filed this action on August 1,
2022, alleging claims against Defendants for Breach of Contract and Negligent
Interference with Prospective Economic Advantage. Defendants now move for
summary judgment.
A. Improper
Service of Plaintiff’s Opposition
Defendants argue that Plaintiff’s
opposition should be disregarded by the court because Plaintiff served the
papers himself, rather than by a person “not a party to the cause,” in
violation of CCP § 1013a (1).
Despite Plaintiff’s failure to properly
serve Defendants, Defendants do not allege that they were prejudiced or that
they did not receive notice of Plaintiff’s opposition. (See Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1289 [“In
order to obtain a reversal based upon such a procedural flaw, the appellant
must demonstrate not only that the notice was defective, but that he or she was
prejudiced”] [italics original].) Accordingly,
the court considers Plaintiff’s opposition.
B. First
Cause of Action – Breach of Contract
The elements of a claim for breach of
contract are: “(1) the existence of the contract, (2) plaintiff’s performance
or excuse for nonperformance, (3) defendant's breach, and (4) the resulting
damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51
Cal. 4th 811, 821.) In addition, the complaint
must demonstrate damages proximately caused by the breach. (St. Paul Ins. v.
American Dynasty (2002) 101 Cal.App.4th 1038, 1060.)
Defendants present
evidence that about a year after signing the Lease Agreement, Plaintiff signed
an Estoppel Certificate on April 4, 2022, acknowledging “There are no disputes between Lessor
and Lessee concerning the Lease, the Premises or the improvements therein or
thereon.” (Veits Decl. ¶ 10, Ex. B at ¶ 8.) In the Estoppel Certificate, under additional items, Plaintiff states “Attached are proof of payments & Bid for
signature for Work to be done in order to open.” (Id. at ¶ 15.)
The Estoppel Certificate also acknowledged that “By oral
agreement between Lessor and Lessee, monthly rent has been suspended until such
time that the City conveys the electric, plumbing and other improvements are
required in order to receive a permit. Lessee had paid one-month deposit of
$2,615 plus $2,615 for June and July 2021. Monthly rent has been suspended.
(Veits Decl. Ex. B at ¶
1.)
Defendants also point
out that in the Lease Agreement, in Paragraph 23, it states:
APPLICATION OF LAW.
Tenant
shall comply with all law, ordinances, regulations and other legal requirements
affecting the Premises and the use thereof, and Tenant shall indemnify, defend
and hold Landlord harmless from expenses or damage resulting from failure to do
so.
(Veits Decl. ¶¶, 3, 4(b); Ex. A.)
Paragraph 19 of the Lease Agreements
states, in the relevant part:
CONDITIONS OF PREMISES.
Tenant acknowledges that it has inspected the
Premises and accepts the Premises in its current condition.
(Veits Decl. ¶¶, 3, 4(a); Ex. A.)
Paragraph 36 of the Lease Agreement,
contains the integration clause stating, in relevant part:
ENTIRE AGREEMENT
This
Agreement contains the entire agreement between the parties, and no
modification of this Agreement shall be binding upon the parties unless
evidenced by an agreement in writing signed by Landlord and Tenant after the
date hereof.
(Veits Decl. ¶¶, 3, 4(e); Ex. A.)
Defendants assert that whatever
representations were made about the suitability of the premises, the
integration clause in the Lease Agreement reducing the parties' agreement in
writing supersedes any prior representations made. Defendants also assert that
they did attempt to assist Plaintiff by waiving rent for a period and paying
for some repairs. (Veits Decl. ¶ 7.)
On or about February 4, 2022, Defendants
had already entered into an agreement to sell the building that contained the
Premises. Plaintiff subsequently agreed
to, signed, and executed an Estoppel Certificate on or about April 4, 2022.
(Veits Decl. ¶ 10.) The escrow closed on April 11, 2022, and ownership of the
building and Premises was transferred to One Cole Group, LLC. (Id. ¶
11.)
Defendants present evidence that pursuant
to the Estoppel Certificate, Plaintiff admitted he had “no knowledge of any
uncured defaults by Lessor or Lessee under the Lease” and that “[t]here are no
disputes between Lessor and Lessee concerning the Lease, the Premises or the
improvements therein[.]” (Veits Decl. Ex. B at ¶¶ 7,8.) With this language, Defendants have presented
sufficient evidence that Plaintiff was aware of the conditions of the Premises,
he agreed to indemnity Defendants for any failure to comply with “all laws,
ordinances, regulation, or other legal requirements affecting the Premises,” he
had “no knowledge of any uncured defaults” by Defendants, and that no dispute
existed between the parties concerning the Lease, the Premises, or the
improvements at the time the Estoppel Agreement was signed. (Veits Decl. ¶¶ 4,
10.) “[U]nder [CCP] section 622, when a tenant signs and delivers an estoppel
certificate, as required under the commercial lease agreement, that tenant is
bound to the recitations of fact contained therein.” (Plaza Freeway Ltd. Partnership v. First Mountain Bank
(2000) 81 Cal.App.4th 616, 629.)
The burden shifts to the Plaintiff to
show that a material issue of fact exists regarding Defendants’ alleged breach
of the Lease Agreement.
C. Plaintiff’s Opposition to the First Cause of Action
Plaintiff filed an opposition that references
three Exhibits and makes no statement as to what conclusions Plaintiff wants
the court to draw from the evidence:
Exhibit
A: “emails detailing the hasty occupancy, tenant improvement work conducted,
code violation notice, contractor’s estimate outlining the necessary building
upgrades to meet code, previous and current pictures of the units after
being bought up to code by new owners
and responses from Triangle 8.”
Exhibit
B: “copy of the customer-based work orders/receipts prior to relocating to the
building in question.”
Exhibit
C: “email stating I would be in violation my lease agreement if I didn’t sign
the estoppel certificate, a copy of estoppel certificate with additional notes,
and agreements that I would still be able commence doing business from Nancy
Veits, [sic] [.]”
The court finds that Plaintiff has waived
the right to enforce any agreements or rely on any representations Defendants
may have made that occurred prior to Plaintiff signing the Estoppel
Certificate on or about April 4, 2022, because Plaintiff is bound by
representations made in the Estoppel Agreement. (Veits Decl. ¶ 10, Ex. B.) As
stated above, the representations include that Plaintiff did not know of any
uncured defaults by Defendants, that there were no disputes between Plaintiff
and Defendants, and that Plaintiff agreed to indemnify Defendants for any
failure to comply with all laws, ordinances, regulations, or other legal
requirements affecting the Premises.” (Veits Decl. ¶¶ 4,7, 8, 10, Ex. B.)
The court also finds that Plaintiff has
failed to present evidence that he was unlawfully induced into signing the
Estoppel Certificate. On March 31, 2022, Nancy Veits emailed Plaintiff and stated
in relevant part:
You
have not signed estoppel, have not provided a design plan and costs for the
remodel, and have violated your lease. Besides that you have not paid rent.
(Plaintiff’s Compendium of Evidence
(“PCOE”) Ex. C.) Nothing in the above email supports the inference that Nancy
Veits, or any other Defendant, told Plaintiff he would be in violation of the
lease agreement if he did not sign the Estoppel Certificate.
On March 3, 2022, a day before Plaintiff signed
the Estoppel Certificate, John Condon informed Plaintiff that:
[T]he
property is in escrow to be so’d [sic] and the buyers have shared that they
think you are living in the unit and intentionally delaying the permit process.
When they learned that you have not paid rent since July, they were very upset
and suggested that upon closing, they will work to get you out.
I don’t have experience dealing with the
City’s approvals process but I hope you have been acting in good faith and want
to proceed as fast as possible so that you can open for business and resume
paying rent . . .
From
what I’ve heard, the buyers are experienced, long-term investors who have
purchased a similar building on the west side of LA and spent many years
improving it. For this reason, I think you and they can have a good future
together. . .if we can get past the present issue.
(PCOE Ex. C.)
Plaintiff fails to explain how this email
is an agreement or shows that an agreement existed wherein Defendants agreed
Plaintiff would be able to continue doing business on the premises after the
sale of the building. The March 3, 2022, email supports the inference that
Plaintiff knew the building was being sold and the new owners were acquiring
the building.
The next day, on March 4, 2023, Plaintiff
responded by stating “I have attached the estoppel certificate as requested.” Neither
Nancy Veits nor John Codon’s email present evidence that Defendants unlawfully
induced Plaintiff into signing the Estoppel Certificate. “[A] person with
capacity of reading and understanding an instrument signs it, he may not, in
the absence of fraud, imposition or excusable
neglect, avoid its terms on the ground he failed to read it before signing it.”
(Bauer v. Jackson (1971) 15 Cal.App.3d 358, 370.)
Plaintiff is bound by representations made in the Estoppel Certificate. He has failed to present evidence or any
legal arguments as to why he should not be bound to those representations. Moreover,
the fact he crossed out “NONE” on item 15 of the Estoppel Certificate, does not
negate the representations made in the proceeding paragraphs of the Estoppel
Certificate regarding the fact that no dispute exists between the parties. (Veits Decl. ¶¶ 4,7, 8, 10, Ex. B.)
As Plaintiff has failed to show that a
triable issue of material fact exists, Defendant’s motion for summary
adjudication is granted as to the first cause of action for breach of contract.
D. Second
Cause of Action - Negligent Interference with Prospective Economic Advantage
(NIPEA)
To state a claim for the tort of negligent interference with
prospective economic advantage (NIPEA), the plaintiff must allege that: (1) an
economic relationship existed between the plaintiff and a third party which
contained a reasonably probable future economic benefit or advantage to
plaintiff; (2) the defendant knew of the existence of the relationship and was
aware or should have been aware that if it did not act with due care its
actions would interfere with this relationship and cause plaintiff to lose in
whole or in part the probable future economic benefit or advantage of the
relationship; (3) the defendant was negligent; and (4) such negligence caused
damage to plaintiff in that the relationship was actually interfered with or
disrupted and plaintiff lost in whole or in part the economic benefit or
advantage reasonably expected from the relationship. (North American
Chemical Co. v. Sup. Ct. (1997) 59 Cal.App.4th 764, 788.)
For a NIPEA claim the interference must be
wrongful by some legal measure other than the fact of the interference itself.
(Della Penna v. Toyota Motor Sales, U.S.A. (1995) 11 Cal.4th 376, 378. “[A]n
act is independently wrongful if it is unlawful, that is, if it is proscribed
by some constitutional, statutory, regulatory, common law, or other
determinable legal standard.” (Korea Supply Co. v. Lockheed Martin
Corp. (2003) 29 Cal.4th 1134, 1159.)
Defendants assert that Plaintiff’s second cause of action fails
because Plaintiff fails to identify a third party with which Defendants
interfered. Defendants also assert they were unaware of any third party that
Plaintiff has a contract with. (Veits Decl. ¶ 13.)
As Defendants have shown that Plaintiff fails to meet the first
element for a NIPEA claim, that an economic relationship exists between
Plaintiff and a third party, the burden shifts to Plaintiff to show the
existence of such a relationship. Plaintiff’s Exhibit B shows a list of work
orders from clients for computer repairs. With this Exhibit, Plaintiff has
shown that an economic relationship existed between Plaintiff and his clients
that contained a reasonably probable future economic benefit or advantage to Plaintiff.
On reply, Defendants failed to negate Plaintiff’s evidence or
otherwise present evidence that Plaintiff did not have a prospective economic
relationship with his clients. Instead, Defendants argue once again that
Plaintiff failed to name a third party. It is not the role of the court to
develop the party’s argument nor search the record for supporting evidence. (Meridian
Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684.)
Defendants do not allege that the second cause of action is void due to
representations made in the Estoppel Certificate or the indemnification clause
found in Paragraph 23 of the Lease Agreement. Therefore, the court may “treat
arguments not developed or supported by adequate citations to the record as
waived.” (Ibid.)
The court finds a triable issue of fact exists as to whether
Defendants’ failure to lease the premises in a habitable condition interfered
with Plaintiff’s prospective economic relationship with his clients and denies summary
adjudication as to the second cause of action.
Defendants’ Motion for Summary Judgment is denied.
Conclusion
Defendants’ Motion for Summary
Judgment is denied. The court grants summary adjudication as to the first cause
of action for Breach of Contract and denies summary adjudication as to the
second cause of action for Negligent Interference with Prospective Economic
Advantage.
Defendants to give notice.