Judge Holly J. Fujie, Case 21STCV06334 2023-04-11 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

MOVING PARTIES: Plaintiff/Cross-Defendant 6759 Hollywood Associates, LLC (“HA” or “Plaintiff”) and Cross-Defendant Denley Investment & Management Company, Inc. (“Denley”)

RESPONDING PARTY: Defendants/Cross-Complainants Museum of Selfies, Inc. (“MOS”) and Azariy Lapidus (“Lapidus”) (collectively, “Defendants”)

This case arises out of a commercial landlord/tenant relationship. Plaintiff’s Complaint (the “Complaint”) alleges: (1) breach of commercial lease; and (2) breach of guaranty. Defendants’ currently operative second amended cross-complaint (the “SAXC”) alleges: (1) breach of contract; and (2) declaratory relief.

In relevant part, the Complaint alleges: Plaintiff owns a commercial building on Hollywood Boulevard (the “Property”). (Complaint ¶ 7.) On or about July 3, 2018, Plaintiff and MOS entered into a retail lease agreement (the “Lease Agreement”) for a term of five years and three months beginning on July 3, 2018 and ending on September 30, 2023. (Complaint ¶ 8, Exhibit 1.) The Lease Agreement did not contain a provision providing for the early termination by either Plaintiff or MOS aside from situations involving condemnation or physical destruction of the premises. (See Complaint ¶ 10.) Lapidus served as the guarantor of the Lease Agreement. (Complaint ¶ 11.)

On April 1, 2020, MOS stopped making its monthly rent and common area maintenance payments. (Complaint ¶ 12.) Thereafter, MOS and Plaintiff attempted to amend the Lease Agreement in acknowledgement of the COVID-19 pandemic. (See Complaint ¶¶ 14-21.) MOS and Plaintiff were ultimately unsuccessful in their attempts to amend the Lease Agreement. (Complaint ¶ 21.) Plaintiff received a letter from MOS’s counsel dated November 5, 2020, stating MOS’s intention to terminate the lease. (Complaint ¶ 27.) MOS continued to occupy the Property until December 18, 2020. (Complaint ¶ 28.) After MOS vacated the Property, Plaintiff inspected the premises and found that MOS failed to restore the space to its original condition in violation of the Lease Agreement. (Complaint ¶ 30.) Plaintiff has not been able to attempt to relet the Property because it has not yet been restored to its original condition. (Complaint ¶ 31.)

In relevant part, the SAXC alleges: Moving Cross-Defendant repeatedly failed to make repairs to the Premises, including to the roof, elevator, and fire alarm system, despite repeated requests from Cross-Complainants and Moving Cross-Defendant’s repeated assurances that it would address these problems. (See SAXC ¶¶ 8-20.)

This order concerns two motions: (1) Plaintiff filed a motion for summary judgment to the Complaint (the “CMSJ”) on the grounds that there are no triable issues of material fact that Defendants breached the Lease Agreements and Guaranty; and (2) Plaintiff and Denley jointly filed a motion for summary judgment/adjudication to the SAXC (the “XMSJ”) on the grounds that there are no triable issues of material fact that Plaintiff and Denley performed under the Lease Agreement and Defendants are not entitled to damages.

Defendants’ objections to the Declaration of Amir Amini (“Amini Decl.”) are OVERRULED.

Plaintiff’s objections to the Declaration of Ruslan Balashov (“Balashov Decl.”) numbers 2, 4, 6-10, 12, and 14-15 are SUSTAINED. Objections to the Balashov Declaration numbers 1,3, 5, 11, and 13 are OVERRULED.

Plaintiff’s objections to the Declaration of Karen Sunday (“Sunday Decl.”) number 1 is OVERRULED. Objections to the Sunday Declaration numbers 2-6 are SUSTAINED.

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.) California Code of Civil Procedure (“CCP”) section 437c, subdivision (c) requires the 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.)

A plaintiff moving for summary judgment or summary adjudication meets the burden of showing that there is no defense to a cause of action if the plaintiff has proved each element of the cause of action entitling them to judgment on that cause of action. (CCP § 437c, subd. (p)(1).) 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.)

Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of the opposing party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) The Court cannot weigh the credibility of witnesses or weigh other evidence, and where there is a conflict in declarations presented by the parties on material issues of fact or a conflict in the inferences to be drawn from that evidence, the Court must deny the motion. (Binder v. Aetna Life. Ins. Co. (1999) 75 Cal.App.4th 832, 840.)

On April 15, 2022, the Court denied a previous motion for summary judgment to the Complaint (the “2022 MSJ”) that Plaintiff filed on the ground that the supporting evidence did not meet the moving party’s burden to show that Plaintiff performed the terms of the Lease Agreement. The current CMSJ presents additional evidence that Plaintiff did not rely on in its 2022 MSJ that responds to arguments that Defendants raised for the first time in their opposition to the 2022 MSJ. Moreover, this is the first summary judgment motion filed by Plaintiff and Denley regarding the claims in the SAXC. The Court thus finds it appropriate under the circumstances to consider the Motions on its merits. (See Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 71-73.)

In support of the CMSJ Motion, Plaintiff presents evidence that: On or about July 3, 2018, Plaintiff and MOS entered into the Lease Agreement for MOS to use the Property for retail admissions to museum exhibits and retail sales of merchandise, food and beverages. (Separate Statement of Undisputed Material Facts (“UMF”) 2; Amini Decl. ¶ 2, Exhibit 1.) The Lease Agreement provided for a term of five years and three months, beginning on July 3, 2018, and ending on September 30, 2023. (Amini Decl., Exhibit 1 at Exhibit A ¶ 4.) Under the Lease, MOS was responsible for paying the full amount of monthly rent and CAM costs “without off-set or deduction.” (Amini Decl., Exhibit 1 ¶ 3.)

Paragraph 14 of the Lease Agreement, entitled “Maintenance of Lessor,” sets forth Plaintiff’s maintenance responsibilities during the term of the lease. (Amini Decl., Exhibit 1 at ¶ 14.) Paragraph 14 provides that Plaintiff would not be liable for damages to MOS resulting from its failure to make repairs. (Id.) Paragraph 22 of the Lease Agreement detailed conduct that would constitute a breach by MOS, including abandonment of the Property before the expiration of the term of the Lease and failure to pay rent or CAM charges when due. (Amini Del., Exhibit 1 ¶ 22.) The Lease Agreement additionally required that MOS surrender and deliver the Property to Plaintiff in the same condition as it existed at the date of the Lease’s execution, excluding reasonable wear and tear, upon the expiration or early termination of the lease. (UMF 11.)

Paragraph 27 of the Lease Agreement, entitled “Destruction,” required Plaintiff to conduct repairs and restore the Property to its original condition if the Property became damaged or destroyed during the tenancy. (Amini Decl., Exhibit 1 at ¶ 27(c).) MOS could lawfully terminate its tenancy if such repairs took over 180 days to complete. (Id.) In addition, MOS could terminate its tenancy if Plaintiff failed to begin making repairs, restoration or rebuilding of the Property if it became damaged or destroyed within 120 of the damage or if repairs were not completed within 120 days of commencing, if it terminated the tenancy within 10 days of the expiration of Plaintiff’s time period to begin repairs. (Amini Decl., Exhibit 1 ¶ 27(a).)

Paragraph 27 also provided that if MOS’s business operations were rendered impossible during the period of any repairs, rebuilding or restoration of the Property and MOS’s business did in fact stop operating, rent and all other charges would be abated during the period of closure. (Amini Decl., Exhibit 1 ¶ 27(c).)

The Lease Agreement listed failure to pay rent when due and early abandonment of the Property as conduct that would constitute a breach by MOS. (See UMF 9-10.) In addition, the Lease Agreement required MOS to promptly surrender the Property in its original condition upon termination or abandonment of the tenancy. (UMF 11.)

Paragraph 23 provided for Plaintiff’s remedies in the event of MOS’s breach or default. (See Amini Decl., Exhibit 1 ¶ 23.) Paragraph 23 authorized Plaintiff to continue the lease by not terminating MOS’s right to possession and enforce its rights as the rents and obligations became due. Paragraph 23 alternatively authorized Plaintiff to terminate the lease and all rights of MOS and recover: (1) the worth at the time of the award of the unpaid rent that had been earned at the time of termination of the lease; (2) the worth at the time of the award of the amount by which the unpaid rent that would have been earned after termination of the lease until the time of award exceeds the amount of rental loss that MOS proves could have reasonably been avoided; (3) the worth at the time of the award of the amount by which the unpaid rent for the balance of the term of the lease after the time of award exceeds the amount of rental loss that MOS proved could be reasonably avoided; and (4) any other amount necessary to compensate Plaintiff for all detriment proximately caused by MOS’s breach. (Id.)

Lapidus personally guaranteed the Lease. (UMF 115.) The Guaranty provided that Lapidus unconditionally and irrevocably guaranteed the prompt payment by MOS of all rentals and other sums payable under the Lease. (UMF 116.) The Guaranty further provided that upon a breach of the Lease by MOS, Plaintiff had the right to immediately pursue its remedies from MOS and Lapidus. (UMF 117.)

MOS opened its business to the public on November 16, 2018. (UMF 29.) MOS did not have a certificate of occupancy from the Los Angeles Department of Building and Safety (“LADBS”) when it opened. (UMF 25.)

Pursuant to Exhibit B of the Lease Agreement, rent was abated for a few months after the tenancy, and at some point in the fall of 2018, MOS and Plaintiff agreed to abate rent while it made certain repairs, including to the fire system and elevator. (See UMF 20-21.) In June 2019, MOS agreed that it would resume paying rent in July 2019, and MOS did not cite to any concerns about the elevator, fire safety system, or other needed repairs. (See UMF 22-23, Amini Decl., Exhibit 7.)

On May 22, 2019, the Los Angeles Department of Building and Safety (“LADBS”) issued a permit for the installation of a new fire alarm system. (UMF 33.) At Plaintiff’s direction, installation of a new fire alarm device began that same day and the final permit approval was issued on October 23, 2019. (UMF 34-35.) The heating and ventilation were fixed by 2020. (UMF 78.) MOS did not apply for a certificate of occupancy after October 2019. (UMF 37.) MOS understood that it was responsible for obtaining necessary permits and certificates. (See UMF 26.) MOS did not apply for a certificate of occupancy during its occupancy of the Property. (See UMF 27.)

Beginning in June 2018 and during the period that MOS’s rent was abated, Plaintiff engaged Trasom Fire Protection Systems, Inc. (“Trasom”) to service and update the fire alarm system. (See UMF 28-33.) The fire alarm was fully permitted by the Los Angeles Fire Department and LADBS on September 27, 2019. (UMF 36.) Beginning in February 2019, Plaintiff also engaged Specialized Elevator Services, LLC (“Specialized”) to service the Property’s elevator. (See UMF 40.) Specialized maintained service records for the Property until January 2021. (See UMF 44-45.) Specialized’s records provide that between February 2019 and January 2021, the elevator was non-operational on four days, all of which were in August 2019 and October 2019. (UMF 43.) On each of these occasions, the elevator was returned to service on the same day. (Id.)

MOS remained open to the public throughout the period of its rent abatement. (See UMF 48.) Between November 16, 2018 and March 2020, MOS was continuously open to the public aside from unscheduled closures that did not exceed five days. (See UMF 47.) Between March 2020 and December 2020, MOS did not request Plaintiff to make any repairs to the Property. (UMF 93.)

On March 15, 2020, the City of Los Angeles issued a public order which placed restrictions on businesses in response to the COVID-19 pandemic. (UMF 49.) On March 16, 2020, MOS closed its business. (UMF 54.) MOS stopped paying rent on April 1, 2020. (UMF 55.) Thereafter, Plaintiff and MOS engaged in ultimately unsuccessful discussions regarding rent relief and amending the Lease. (UMF 56.) MOS did not cite repair issues as a basis for amending the Terms of the Lease Agreement during these negotiations or in its November 5, 2020 letter to MOS in which it stated that it was terminating its tenancy. (See UMF 55-58, 68.)

On December 18, 2020, MOS abandoned the Property. (UMF 69.) MOS did not restore the Property to its original condition and on January 11, 2021, Plaintiff provided written notice of the damage to the Property and gave MOS an opportunity to cure the breach pursuant to Paragraph 22(b) of the Lease Agreement. (UMF 73; see Amini Decl., Exhibit 5.) MOS did not respond to this notice. (Id.)

Plaintiff hired a third-party broker and listed the Property, but it has not been able to re-let the Property after MOS vacated the premises. (See UMF 74-75.) MOS’s outstanding rent obligations total $2,010,723. (UMF 76.) Plaintiff received an estimate to restore the Property to its condition before MOS’s occupancy that totals $21,920.88. (UMF 77.)

The elements of a claim for breach of contract are: (1) the contract; (2) the plaintiff’s performance or excuse for nonperformance; (3) the defendant’s breach; and (4) resulting damages. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.) The elements of a breach of guaranty claim are: (1) a valid guaranty; (2) the borrower has defaulted; and (3) the guarantor failed to perform under the guaranty. (Gray CPB LLC v. Kolokotronis (2011) 202 Cal.App.4th 480, 486.)

Plaintiff has met its initial burden to show the existence of all the requisite elements of a breach of contract claim.

Defendants make numerous arguments in their opposition (the “COPP”) to dispute Plaintiff’s arguments. Notably, Defendants do not present evidence that MOS was unable to operate its business at any point between July 2019, when it began paying rent, through its November 2020 abandonment of the Property, due to repairs that needed to be made to the Property. Defendants recite the underlying history of problems with the elevator and fire alarm systems that occurred before July 2019; however, the Court observes that Plaintiff does not seek damages for this period of rent abatement. Furthermore, Defendants’ recitation of facts confirms that they did not terminate or attempt to terminate the Lease Agreement during the period of rent abatement and that they remained open to the public until March 2020.

Defendants argue that the Lease Agreement is unenforceable due to illegality because it does not contain a provision concerning whether the Property had been inspected by a Certified Access Specialist (“CASp”), as required under Civil Code section 1938.

Civil Code section 1938 requires commercial lease agreements entered into after 2017 to make certain disclosures regarding the rental property’s CASp inspection status and requires that a rental contract for a property that has not undergone CASp inspection include a disclosure with specific language. (See Civ. Code section 1938, subd. (e).) Civil Code section 1938 does not contain any language that addresses the consequences of failing to include the necessary disclosures.

As stated by the Court of Appeal in Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 622 (citations omitted):

Generally, an illegal contract may not serve as the basis for an action, either in law or equity. By refusing to entertain the enforcement of illegal contracts, courts maintain their integrity while at the same time deterring the formation of such contracts. Such a rule also prevents the guilty party from reaping the benefit of his wrongful conduct, and protects the public from the future consequences of an illegal contract

The general rule that courts will not enforce illegal contracts is not absolute. Rather, the fundamental purpose of the rule must always be kept in mind, and the realities of the situation must be considered. Courts should not apply the general rule when: (1) the public cannot be protected because the transaction has been completed; (2) no serious moral turpitude is involved; (3) the defendant is the one guilty of the greatest moral fault; and (4) to apply the rule will permit the defendant to be unjustly enriched at the expense of the plaintiff. In such circumstances, equitable solutions have been fashioned to avoid unjust enrichment to a defendant and a disproportionately harsh penalty upon the plaintiff.

Defendants argue that the entirety of the Lease Agreement is illegal because it does not contain a CASp provision, and that Plaintiff should thus be foreclosed from attempting to enforce it and recover damages. Defendants do not make a specific argument as to why the one missing provision is sufficient to invalidate the entire Lease Agreement. None of the authority cited in the COPP addresses Civil Code section 1938. Defendants’ authority is largely based on cases addressing residential leases, which raise different policy concerns than commercial leases. (See Espinoza v. Calva (2008) 169 Cal.App.4th 1393, 1400.)

Defendants’ argument regarding illegality is infused with their overarching arguments regarding their position that Plaintiff breached the Lease Agreement by failing to make necessary repairs, which prevented them from being able to obtain the necessary elevator and fire safety permits and certificates of occupancy to operate their business legally. Defendants’ argument conflates an obligation to obtain certificates of occupancy and permits with Plaintiff’s duty under the Lease Agreement to furnish a working elevator and fire alarm system. Civil Code section 1938 does not require landlords to obtain any permits or certificates, and Defendants provide no evidence that Plaintiff assumed the responsibility for obtaining the necessary approvals. Nor do Defendants provide evidence that they applied for any permits or certificates and were denied. The Court therefore finds that the Lease Agreement is not unenforceable due to illegality.

Defendants additionally argue that government restrictions imposed on businesses that were issued of the COVID-19 pandemic rendered performance of the Lease Agreement impossible and/or frustrated.

Civil Code, section 1511, provides in part: the want of performance of an obligation, or of an offer of performance, in whole or in part, or any delay therein, is excused by the following causes, to the extent to which they operate: (1) when such performance or offer is prevented or delayed by the act of the creditor, or by the operation of law, even though there may have been a stipulation that this shall not be an excuse; or (2) when it is prevented or delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States, unless the parties have expressly agreed to the contrary. (Civ. Code § 1511(1)-(2).) Impossibility is a defense to contract enforcement. (See Mineral Park Land Co. v. Howard (1916) 172 Cal. 289, 459-60.) The impossibility which will excuse the performance of a contract must consist in the nature of the thing to be done and not in the inability of the obligor to do it. (Caron v. Andrew (1955) 133 Cal.App.2d 402, 407.) Strict impossibility, however, is not required to excuse performance; rather, performance may also be excused under circumstances showing impracticability because of extreme and unreasonable difficulty, expense, injury, or loss involved. (Oosten v. Hay Haulers Dairy Emp. & Helpers Union (1955) 45 Cal.2d 784, 794.) For performance to be excused, however, it must be objectively, not subjectively, impossible or impracticable. (See Hensler v. Los Angeles (1964) 124 Cal.App.2d 71, 83.)

The doctrine of frustration of purpose excuses contractual obligations where performance remains entirely possible, but the whole value of the performance to one of the parties at least, and the basic reason recognized as such by both parties, for entering into the contract has been destroyed by a supervening and unforeseen event. (SVAP III Poway Crossings, LLC v. Fitness International, LLC (2023) 87 Cal.App.5th 882, 895.) A party seeking to escape the obligations of its lease under the doctrine of frustration must show: (1) the purpose of the contract that has been frustrated was contemplated by both parties in entering the contract; (2) the risk of the event was not reasonably foreseeable and the party claiming frustration did not assume the risk under the contract; and (3) the value of counter-performance is totally or nearly totally destroyed. (Id.) Governmental acts that merely make performance unprofitable or more difficult or expensive do not suffice to excuse a contractual obligation. (Id.)

Defendants have not raised a triable issue of fact that COVID-19 pandemic related ordinances and restrictions made performance excusable due to impossibility or frustration of purpose. The only provision of the Lease Agreement that Defendants cite to support their claim that the circumstances of the COVID-19 pandemic made the performance of their tenancy a basis for termination is Paragraph 27, the provision that concerns rent abatement during periods of necessary closure due to required repairs. In addition, the Court notes that Defendants remained in possession of the Property until November 2020 and the evidence shows that before they terminated the Lease Agreement, they did not argue that performance was frustrated or impossible. Liability continues as long as the lessee continues in possession. (See SVAP III Poway Crossings, LLC v. Fitness International, LLC (2023) 87 Cal.App.5th 882, 896 (addressing COVID-19 impossibility and frustration of purpose defenses).)

A lessor's obligation to limit damages on the breach of a lease arises under Civil Code section 1951.2, which in part provides for the recovery of damages to the extent that the unpaid rent exceeds the amount of such rental loss that the lessee proves could have been reasonably avoided. (Sebastian International, Inc. v. Peck (1987) 195 Cal.App.3d 803, 810.) As the statutory language provides, the defendant bears the burden of establishing the amount of the loss that could have been reasonably avoided. (Id.) On a motion for summary judgment, such evidence should at least raise a factual question of whether the plaintiff made any effort whatsoever to mitigate or whether the effort made was reasonable under the circumstances. (Id.) The fact that reasonable measures other than the one taken would have avoided damage is not, in and of itself, proof of the fact that the one taken, though unsuccessful, was unreasonable. (Id.) The standard by which the reasonableness of the injured party's efforts is to be measured is not as high as the standard required in other areas of law. (Id.) It is sufficient if he acts reasonably and with due diligence, in good faith. (Id.)

Defendants have failed to present admissible evidence to refute the evidence set forth in the CMSJ aside from evidence that the Property did not display signage indicating that it was for lease when it was photographed on March 20, 2023. (See Balashov Decl., Exhibit K.) Plaintiff presents evidence that signage occasionally falls down due to weather or vandalism and that the signs get replaced regularly. (See Supp. Declaration of Matt Ellis ¶ 6.) Defendants’ evidence is insufficient to raise a triable issue of fact that Plaintiff has acted unreasonably in mitigating its damages.

Based on the foregoing, the Court finds that Defendants have failed to raise a triable issue of material fact regarding the claims in the Complaint and therefore GRANTS the CMSJ. The Court notes that the CMSJ includes evidence of attorney’s fees incurred, which should be requested separately by noticed motion.

The XMSJ concerns largely the same facts as the CMSJ, but with a greater focus on the alleged issues with the Property during the time that Defendants’ rent was abated. The XMSJ has met its burden to show that Plaintiff and Denley did not breach the Lease Agreement.[1] As with the CMSJ, Defendants have not presented sufficient evidence to show a triable issue of fact as to the breach of contract claim. They have presented no evidence of repairs that required them to close to the public after they began paying rent in July 2019. They have likewise not presented evidence that disputes that they agreed to resume paying rent in July 2019 or that they ever attempted to terminate the Lease Agreement based on repair-related issues at any point during their tenancy. The Court therefore GRANTS the XMSJ to the breach of contract claim in the SAXC.

The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject. (Otay Land Co. v. Royal Indemnity Co. (2008) 19 Cal.App.4th 556, 562.) In order to state a proper claim for declaratory relief, the plaintiff must assert some recognized or cognizable legal theories that are related to subjects and requests for relief that are properly before the court. (Id. at 563.) Declaratory relief operates prospectively, serving to set controversies at rest before obligations are repudiated, rights are invaded, or wrongs are committed. (Doan v. State Farm General Ins. Co. (2011) 195 Cal.App.4th 1082, 1096.) Hence, where there is an accrued cause of action for an actual breach of contract or other wrongful act, declaratory relief may be denied. (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366.)

The declaratory relief claim concerns the illegality and enforceability of the Lease Agreement. (See SAXC ¶ 39.) The claim concerns past wrongs claims for relief that are otherwise encompassed by the remainder of the claims in the Complaint and SAXC. In addition, based on the Court’s discussion of illegality with respect to the CMSJ, the Court finds that the Lease Agreement is not unenforceable despite not having a CASp provision. The Court therefore GRANTS the XMSJ to the second cause of action.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] In addition, Denley is not a party to the Lease Agreement.