Judge: Gregory Keosian, Case: 20STCV23940, Date: 2022-08-09 Tentative Ruling

Case Number: 20STCV23940    Hearing Date: August 9, 2022    Dept: 61

Plaintiff Elite-TRC Alhambra Community LLC’s Motion for Summary Judgment is GRANTED.

I.      MOTION FOR SUMMARY JUDGEMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment.  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc. § 437c, subd. (f)(2).)  

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) Plaintiffs moving for summary judgment may meet their initial burden by “prov[ing] each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc. § 437c(p)(1).)

Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  (Code Civ. Proc. § 437c(p)(1).)  The defendant may not rely upon the mere 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 that cause of action or a defense thereto.  (Code Civ. Proc. § 437c(p)(1).)  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.)

A.    BREACH OF CONTRACT

“[T]he elements of a cause of action 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, 820.)

Plaintiff has shown the absence of triable issues of fact as to the elements of a breach of contract claim. Plaintiff has shown the existence of an agreement, as evidenced by Defendant’s testimony to and admission to same. (Flores Decl. Exh. 2; Alek Decl. ¶ 3.) Plaintiff’s admissions also establish a breach of the agreement constituting a failure to pay rent and related charges thereunder for the months of January through July 2020. (Flores Decl. Exh. 2.) The declaration of Kevin Houser, property manager for the property at issue, establishes Plaintiff’s performance of its own obligations under the agreement and the amount of damages involved, amounting to a total principal obligation (in base rent and additional rent) of $263,913.15, plus $40,233.45 in prejudgment interested, assessed as to each individual monthly rent obligation. (Houser Decl. ¶¶ 9–12.) Thus Plaintiff has carried its initial burden as to each element of the claim.

Defendant’s arguments in opposition are unpersuasive. Defendant argues that paragraph 20 of the lease includes a “force majeure” clause that excuses obligations rendered impossible by acts of god or government beyond the parties’ control. (Opposition at p. 5; Houser Decl. Exh. 1, ¶ 20.) But Defendant neglects that the very next clause exempts the payment of rent from the ambit of this clause. (Houser Decl., Exh. 1, ¶ 20.1.) So the payment of rent was not excused.

Defendant also argues that Plaintiff has not shown what was done to rent the premises and mitigate damages after Defendant vacated the property. (Opposition at pp. 6–7.) But this argument neglects the declaration of Kevin Houser, who testifies to Plaintiff’s efforts to lease the property, culminating in a new lease executed as of March 23, 2022. (Houser Decl. ¶ 7.) It also neglects that it is Defendant’s burden to prove that Plaintiff failed to mitigate damages, not Plaintiff’s burden to prove that mitigation efforts were taken. (See Agam v. Gavra (2015) 236 Cal.App.4th 91, 111; see also Civ. Code § 1951.2, subd. (a)(2), (3) [allowing damages up to the amount “that the lessee proves could have been reasonably avoided”], italics added.) It also, finally, overlooks that Defendant has specifically abandoned the failure-to-mitigate affirmative defense as provided in a stipulation executed on March 2, 2021. This argument therefore furnishes no basis to deny the motion.

Defendant also argues, briefly, that she is not individually liable under the lease, but rather that it is her company, Premier Insurance Group, Inc., that is the true tenant. (Opposition at pp. 3, 5.) But no substantial evidence supports this claim. Defendant has previously admitted in discovery that she is personally liable under the lease for unpaid rent. (Flores Decl., Exh. 4.) The lease itself also plainly identifies Defendant, “an individual,” as the tenant and signing party. (Houser Decl. Exh. 1 at pp. 1, 3, S-1.) This argument too thus lacks merit.

Defendant finally argues that pursuant to the Los Angeles County Business Affairs Eviction Moratorium Guidelines, she has until January 31, 2023, to repay any rent obligations owed to Plaintiff. (Opposition at p. 8.) But this argument too has several defects. For one, although this argument is in the nature of an affirmative defense (see LA County Revised Guidelines to Aid in the Implementation of the Los Angeles County COVID-19 Tenant Protections (Guidelines) §§ 6.9, 11), Defendant has not pleaded the defense in her answer, and has given no prior notice to Plaintiff of the argument’s application. (See Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74 [“It is well established that the pleadings determine the scope of relevant issues on a summary judgment motion.”].) Finally, Defendant has not shown entitlement to relief under this affirmative defense, as the deferral of rent obligations that she cites applies only during a “protected time period,” which according to the guidelines means a set range of dates during which the tenant “was unable to pay rent due to Financial Impacts related to COVID-19.” (Guidelines §§ 4.23 [defining protected time period], 8.3(A) [outlining commercial rent protections].) Plaintiff’s failure to pay rent began before the onset of the COVID-19 pandemic, and Plaintiff has presented no evidence to show that the commercial tenant protections apply here.

The motion is therefore GRANTED.