Judge: H. Jay Ford, III, Case: 22SMCV02725, Date: 2024-09-12 Tentative Ruling

Case Number: 22SMCV02725    Hearing Date: September 12, 2024    Dept: O

  Case Name:  Walsh Enterprises III, L.P., v. Los Angeles SMSA LP; Airtouch Cellular Inc.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT  

MOVING PARTY:   Plaintiff Walsh Enterprises III, L.P.

RESP. PARTY:         Defendants Los Angeles SMSA Limited Partnership and Airtouch Cellular, Inc.

TENTATIVE RULING

             Plaintiff Walsh Enterprises III, L.P. Motion for Summary Judgment is DENIED. Plaintiff fails to meet their burden to show there is no triable issue of material fact as the amount of damages Plaintiff claims under its cause of action for breach of contract.

            Plaintiff’s RJN (Court’s order deeming admissions admitted) is GRANTED.

            Defendant’s objections to the declaration of “Plaintiff Wash Enterprises III, L.P” (Ryan Morehead) nos. 10, 11, 12, and 13 are SUSTAINED.  Objection nos. 7 and 8 are OVERRULED.

REASONING

            “[T]he 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.’ [Citation.]” (Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1463; see also Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1153–1154.) “A plaintiff moving for summary judgment establishes the absence of a defense to a cause of action by proving ‘each element of the cause of action entitling the party to judgment on that cause of action.’ [Citation.] The plaintiff need not, however, disprove any affirmative defenses alleged by the defendant. [Citation.] Once the plaintiff's burden is met, the burden of proof 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.’ [Citation.] In meeting this burden, the defendant must present ‘specific facts showing’ the existence of the triable issue of material fact.” (City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1081.)  “The court's assessment of whether the moving party has carried its burden—and therefore caused a shift—occurs before the court's evaluation of the opposing party's papers.  Therefore, the burden on the motion does not initially shift as a result of what is, or is not, contained in the opposing papers.” (Mosley v. Pacific Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434–435 [landlord’s failure to address issue of whether they were aware of their tenant’s marijuana growing operation was not grounds to grant summary judgment where moving party failed to satisfy its initial burden as to the issue); Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 [court cannot grant summary judgment based merely on lack of opposition; court must first determine if the moving party has satisfied its burden].)  

            In addition, the evidence and affidavits of the moving party are construed strictly, while those of the opponent are liberally read. (Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 100. “All doubts as to the propriety of granting the motion (whether there is any issue of material fact [Code of Civil Procedure] § 437c) are to be resolved in favor of the party opposing the motion (i.e., a denial of summary judgment).” (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)

            “A plaintiff ...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.” (Code Civ. Proc. § 437c, subd. (p)(1).)  

A moving Plaintiff or Cross-Complainant does not bear the burden of disproving a defendant’s affirmative defenses or cross-claims to succeed on a motion for summary judgment. (See Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App. 4th 554, 564 [“Plaintiffs initial burden of proof in moving for summary judgment, however, did not include disproving any affirmative defenses asserted by defendants”].)

I.      Plaintiff fails to meet their burden to show there are no triable issues of fact as to the breach of contract claim

            The essential elements of 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." (D'Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.)

            “No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin.” (Copenbarger v. Morris Cerullo World Evangelism, Inc. (2018) 29 Cal.App.5th 1, 11, citing Civ. Code § 3301.) “Damages which are remote, contingent, or merely possible cannot serve as a legal basis for recovery.” (Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 531.) The plaintiff in a breach of contract action has the burden of proving nonspeculative damages with reasonable certainty. (See Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186, 169 Cal.Rptr.3d 475; Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 662, 124 Cal.Rptr.3d 664.)

            Plaintiff Walsh Enterprises III, L.P. (“Plaintiff”) argues Defendant breached their contractual duty to “maintain the Premises in a reasonable condition throughout the term,” due to Defendants lack of roof repair after notice of leak. (See SSUF, ¶¶ 3–7; Kalter Decl., ¶¶ 3, 4 Ex. 1 [RFAs No. 1–6 Deemed Admitted].  Plaintiff  shows the existence of a contract between the Plaintiff and Defendants Los Angeles SMSA Limited Partnership and Airtouch Cellular, Inc (“Defendants”). (See SSUF, ¶ 2; Kalter Decl., ¶ 4, Ex. 2.)  Plaintiff submits evidence Defendants admit they had notice of water damage to the roof, did not respond to Plaintiff’s demands to repair the roof, and did not make any repairs to the roof. Plaintiff submits evidence of “poor condition” with 13 leak locations “in close proximity or directly under cell tower equipment”  “due to waster standing on the roof due to the sagging g cause by the cell tower equipment.”     

 (See SSUF, 7; Carman Decl., ¶¶ 3, 4.)

            Plaintiff provides two declarations to show proof of the $62,900.00 damages request. (SSUF, ¶ 8; Carman Decl., ¶ 7; Morehead Decl., ¶¶ 8–14.) The Damages allegedly comprise of $10,600.00 (coat and seal around the cell tower equipment], $17,800.00 (roof estimate), $10,000.00 (drywall and ceiling damage repair), $500.00 (multiple roof inspections), and $24,000.00 (loss of use damages due to Plaintiff not being able to use portions of the subject property). (Ibid.) 

            Plaintiff submits an estimate of the cost to repair the roof of $17,800.00 (Carman Decl., ¶¶ 1, 7.)  Plaintiff provides evidence of an invoice for the partial repair cost of $10,600.00. (Morehead Decl., ¶ 9; Ex. C.)

            In addition, Plaintiff claims and additional $10,000 was incurred to “fix drywall, the ceiling, and painting.” (Morehead Decl., ¶ 11.) Plaintiff claims damages of $24,000 for “loss of use” of portions of the property. (Id. ¶13)  Plaintiff does not provide any foundation or competent evidence to support the claimed amount of damage for loss of use. Additionally, Plaintiff claims, it incurred $500.00 “for costs of having multiple roof inspections,” again without any foundation or competent evidence. As the moving party, Plaintiff’s evidence is strictly construed, and even though damages can be proven to a reasonable certainty and do not need to be exact, they cannot be speculative or unsupported by admissible evidence.  Plaintiff did not provide any admissible evidence for the claimed damages of $10,000.00, $500.00, and $24,000.00.  Thus, Plaintiff has not met its burden to show there is no triable issues of material fact as the amount of Plaintiff’s claim for damages of $62,900 of damages caused by Defendant’s breach of contract claim.

            Even if Plaintiffs were to meet their burden, Defendants met their burden to show there are triable issues of material fact as to the multiple elements of the claim.  Defendants show there is a dispute as to Plaintiff’s claim of Defendants’ responsibility for roof maintenance. (See Additional Disputed Facts (“ADF”) ¶ 1; Kalter Decl., ¶ 4, Ex. 2 [Lease Agreement ¶ 5].) Defendants cite to the relevant portion of the lease agreement which states:

Landlord warrants and agrees that Landlord’s Property, and all improvements comply and during the terms of this Lease shall continue to comply with all building, life/safety disability and other laws, codes, and regulations of any governmental or quasi-governmental authority. All such compliance shall be accomplished at Landlord’s sole cost and expense.

            (Kalter Decl., ¶ 4, Ex. 2 [Lease Agreement ¶ 5].)

Defendants argue and show that the roof flashing and parapets were out of compliance with the California Building Codes § 1503.3.1 and 1503.3.2 since both were cracked and weathered. (ADF, ¶ 4; Bowles Decl., ¶¶ 7, 10–11, Ex. A–AG.) Defendants argue and show that the lease requires the Plaintiff to maintain the roof in compliance with all applicable codes, and thus there is a dispute of material fact as to the breach element of the claim, or who is in fact responsible for the roof repair under the lease agreement.

Defendants further show there is a disputed material fact as to whether Plaintiff’s failed to mitigate its damages. (SSUF, ¶ 7, 8.) Defendant shows that Plaintiff knew of the substantial damage to the roof and water intrusions since at least 2022, and in the interim between 2022 and now Plaintiff has incurred substantial damage, as Plaintiff shows through declaration. (Ibid.) Defendant’s show Plaintiff has not properly mitigated their damages, and have not provided evidence to show actual repair amounts to prove any mitigation.

            Thus, Plaintiff’s Motion for Summary Judgment is DENIED.