Judge Kerry Bensinger, Case Number: 23STCV10802, Date: 2024-04-29 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

CUSTOM DESIGN FUR CORPORATION DBA LAAPARTMENTS.BIZ’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AGAINST LELAND REGENT PROPERTIES AND WILSHIRE ESCROW COMPANY [7548]

CROSS-DEFENDANT LELAND REGENT PROPERTIES’ MOTION FOR SUMMARY JUDGMENT AS TO CDF’S CROSS-COMPLAINT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION [7400]

Leland Regent Properties (“Leland”) is the owner of the real property commonly known as 6731 Leland Way, Los Angeles, California, 90028 (the “Property”). On or about March 8, 2023, Leland entered into a written Purchase Agreement with Custom Design Fur Corporation dba LAApartments.Biz (“CDF”) for the Property. Pursuant to the Purchase Agreement, CDF, by way of an advance made on its behalf by its sister company LA Brea AP, LLC, deposited money into escrow to be applied to the purchase price. Wilshire Escrow Company (“Wilshire Escrow”) was the escrow holder. However, the sale was not completed. CDF did not approve certain contingency items under the Purchase Agreement within the specified time. Leland did not approve the return of CDF’s deposit which is still being held by Wilshire Escrow.

On May 12, 2023, Leland filed its Complaint against CDF (erroneously sued as La Brea AP, LLC) for Breach of Contract.

On June 14, 2023, CDF filed its Cross-Complaint against Leland and Wilshire Escrow for Breach of Contract and Damages to Recover Monies Held in Escrow.

Before the court are three motions for summary judgment or summary adjudication.

On January 29, 2024, CDF filed its Motion for Summary Judgment or, In the Alternative, Summary Adjudication Against Leland and Wilshire Escrow.

On February 13, 2024, Leland filed two motions: (1) Motion for Summary Judgment As To Its Complaint, and (2) Motion for Summary Judgment As To CDF’s Cross-Complaint.

The motions are fully briefed. The issue central to these motions raises a pure question of law. The court addresses the motions together and rules as follows.

When reviewing a motion for summary judgment or summary adjudication, 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.)¿¿A motion for summary judgment must 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.” (Code Civ. Proc., § 437c, subd. (c).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”¿ (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519 (Scalf).)¿ A defendant seeking 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 (Aguilar).) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”¿ (Code Civ. Proc., § 437c, subd. (p)(2).)¿ A moving defendant need not conclusively negate an element of plaintiff’s cause of action.¿ (Aguilar, supra, 25 Cal.4th at p. 854.)¿¿

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿ (Aguilar, supra, 25 Cal.4th at p. 854.)¿ It is insufficient for the defendant to merely point out the absence of evidence.¿ (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891 (Gaggero).)¿ The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿ (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿ (Aguilar, supra, 25 Cal.4th at p. 855.)¿¿

“Once the defendant … has met that burden, the burden shifts to the plaintiff … 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)(2).) ¿The plaintiff may not merely rely on 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.” ¿(Ibid.)¿ A plaintiff opposing summary judgment defeats the motion by showing one or more triable issues of material fact exist as to the challenged element. (Aguilar, supra, 25 Cal.4th at p. 849.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)¿¿

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.”¿ (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.)¿ “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.]¿ Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿ “Put another way, have defendants conclusively negated a necessary element of the [plaintiff’s] case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial?”¿ (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860, internal citation omitted.) ¿Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿ [Citation.]¿ Nor may the trial court grant summary judgment based on the court’s evaluation of credibility.¿ [Citation.]” ¿(Id. at p. 840; see also Weiss v. People ex rel.¿Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)¿¿

CDF, in support of its Motion for Summary Judgment, requests judicial notice of the following documents:

1. A certified copy of the Fictitious Business Name Statement filed by CDF with the Los Angeles County Recorder’s Office on March 10, 2022 (Request for Judicial Notice (RJN) 1);

CDF’s request as to RJN 1 and 4 is GRANTED. (Evid. Code, § 452, subd. (c), (d)(1).) As the court does not rely on Leland’s Complaint or CDF’s Cross-Complaint in ruling on CDF’s Motion for Summary Judgment, the court declines to rule on the requests for judicial notice as to those documents.

Leland, in support of its Motions for Summary Judgment and its opposition to CDF’s Motion for Summary Judgment, requests judicial notice of the following four articles published on the Internet on March 10, 2023:

1. CNBC (https://www.cnbc.com/2023/03/10/silicon-valley-bank-is-shut-down-byregulators-fdic-to-protect-insured-deposits.html);

3. Reuters (https://www.reuters.com/business/finance/california-regulator-shuts-siliconvalley-bank-2023-03-10/);

4. The New York Times (https://www.nytimes.com/2023/03/10/technology/siliconvalley-bank-fallout.html).

As the court does not rely on any of these documents, the court declines to rule on Leland’s requests.

Leland asserts fourteen (14) objections to the Declaration of Avi Schlanger and one (1) objection to CDF’s requests for judicial notice of its Cross-Complaint.

Objection No. 15 to CDF’s Request for Judicial Notice is Moot. (See discussion re CDF’s Request for Judicial Notice.)

CDF asserts sixteen (16) objections to Leland’s evidence supporting Leland’s Motion for Summary Judgment.

Objection Nos. 13-16: Moot. (See discussion re Leland’s Request for Judicial Notice.)

The property at the center of this dispute is 6731 Leland Way, Los Angeles California 90028. (CDF’s Separate Statement of Undisputed Material Facts (UMF) 1.) Leland was the owner of the Property at the relevant time period. (UMF 3.) On March 8, 2023, Leland and CDF entered into a written Purchase Agreement in which CDF agreed to buy and Leland agreed to sell the Property. (UMF 4.) On the same day, Leland made a counteroffer to CDF which was signed and incorporated into the Purchase Agreement. (UMF 5.) CDF does business under a fictitious name as LAApartments.Biz. CDF used this fictitious name in the Purchase Agreement and the Counter Offer. (UMF 6.) The Purchase Agreement and Counter Offer are the governing documents in this action. (UMF 7.) Pursuant to the Purchase Agreement, CDF caused its sister company, La Brea AP, LLC, to deposit $330,000 with Wilshire Escrow. (UMF 8.) The Purchase Agreement sets forth contingencies at Sections 5, 8.1, 8.2, and 8.3. (UMF 9.) The parties simultaneously executed a Counter Offer which states, “Buyer shall remove all contingencies by 5:00 PM EST, Friday, March 10, 2023.” (UMF 13.) The Counter Offer also states “The foregoing terms and conditions supersede and replace any inconsistent provisions in the referenced Purchase Agreement. All other terms and conditions of said Purchase Agreement (including all terms and conditions related to Agent’s commission) shall remain in full force and effect.” (UMF 14.) CDF did not remove the contingencies. (UMF 15.)

CDF argues that Section 4 merely shortened the time in which CDF was required to remove the contingencies. The decision not to remove the contingencies rendered the Purchase Agreement and Counter Offer null and void as provided in Sections 8.1, 8.2, and 8.3 of the Purchase Agreement. Because the Purchase Agreement and Counter Offer are null and void, Leland was required to return CDF’s deposit of $330,000. Leland breached the Purchase Agreement and Counter Offer by failing to authorize the return of CDF’s deposit.

Leland, on the other hand, argues that Section 4 required CDF to remove contingencies by a date and time certain. CDF’s failure to remove the contingencies triggered an automatic removal of the contingencies, thus requiring CDF to increase the deposit to $700,000 as provided by Section 2 of the Counter Pffer. However, because CDF did not increase the deposit, CDF defaulted on the Purchase Agreement thereby entitling Leland to keep CDF’s deposit of $330,000 as liquidated damages.

“The rules governing the role of the court in interpreting a written instrument are well established. The interpretation of a contract is a judicial function. In engaging in this function, the trial court gives effect to the mutual intention of the parties as it existed at the time the contract was executed. Ordinarily, the objective intent of the contracting parties is a legal question determined solely by reference to the contract’s terms.” (Brown v. Goldstein (2019) 34 Cal.App.5th 418, 432 (Brown) (cleaned up); accord, State of California v. Continental Ins. Co. (2012) 55 Cal.4th 186, 195; Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1125-1126 (Wolf).) “Extrinsic evidence is admissible, however, to interpret an agreement when a material term is ambiguous.” (Brown, at p. 432; accord, Wolf, at p. 1126.) Parol evidence is not admissible when the contract is clear or unambiguous, and it cannot be used to create an ambiguity. (Bernard v. State Farm Mutual Automobile Ins. Co. (2007) 158 Cal.App.4th 304, 308–309.)

Here, the parties agree the language of the Counter Offer is not ambiguous. The court likewise agrees the language is not ambiguous and therefore does not consider any extrinsic evidence to interpret the contract. Nonetheless, the parties advance conflicting interpretations of the Purchase Agreement and Counter Offer. The court is called upon to interpret the terms of the Purchase Agreement and Counter Offer. To resolve the dispute, the court begins by setting forth the contractual language at issue.

LELAND REGENT PROPERTIES, a California limited Partnership shall be hereafter referred to as “Seller”.

Buyer shall deliver to Escrow Holder as defined in Paragraph 3 or to Marcus & Millichap Real Estate Investment Services (“Agent”), as agent for Seller, the sum of three hundred thirty thousand dollars ($330,000) in the form of wire transfer. This sum is a deposit (“Deposit”) to be applied to the purchase price of that certain real property (referred to as the “Property”) located in the City of Los Angeles, County of Los Angeles, State of California, and more particularly described as follows:

5. TITLE: Within three (3) calendar days after the Effective Date of this Agreement, Seller shall procure and cause to be delivered to Buyer a preliminary title report with copies of all exceptions issued by Old Republic Title Company (the “Title Company”) on the Property. Within seven (7) calendar days following the Effective Date, Buyer shall either approve in writing the exceptions contained in said title report or specify in writing any exceptions to which Buyer reasonably objects. If Buyer objects to any exceptions, Seller shall, within nine (9) calendar days following the Effective Date, deliver to Buyer written notice that either (i) Seller will, at Seller’s expense, remove the exception(s) to which Buyer has objected before the Closing Date or (ii) Seller is unwilling or unable to eliminate said exception(s). If Seller fails to so notify Buyer or is unwilling or unable to remove any such exception by the Closing Date, Buyer shall elect in writing, within eleven (11) calendar days from the Effective Date to either terminate this Agreement and receive back the entire Deposit (in which event Buyer and Seller shall have no further obligations under this Agreement); or to purchase the Property subject to such exception(s). Seller shall convey by grant deed to Buyer (or to such other person or entity as Buyer may specify) marketable fee title subject only to the exceptions approved by Buyer in accordance with this Agreement. Title shall be insured by a standard California Land Title Association owner's policy of title insurance issued by the Title Company in the amount of the purchase price with premium paid by Seller.

8.1) BOOKS AND RECORDS: Seller agrees to provide Buyer with items a, b, d, e, f, g, h, i, j, k listed below within three (3) calendar days following the Effective Date:[2]

Buyer shall acknowledge receipt of these items in writing. Buyer shall have seven (7) calendar days following the Effective Date to review and approve in writing each of these items. If Buyer fails to approve these items within the specified time, this Agreement shall be rendered null and void, Buyer’s entire deposit shall be returned, and Buyer and Seller shall have no further obligations hereunder.

8.2) PHYSICAL INSPECTION: Buyer shall have seven (7) calendar days following the Effective Date to inspect the physical condition of the Property, including, but not limited to the soil conditions and the presence or absence of lead-based paint, mold and other hazardous materials on or about the Property, and to notify the Seller in writing that Buyer approves same. If Buyer fails to approve the physical condition of the Property within the specified time, this Agreement shall be null and void and Escrow Holder is hereby authorized to return Buyer's entire deposit. Buyer and Seller shall have no further obligations hereunder.

8.3) STATE AND LOCAL LAWS: Buyer shall have seven ( 7 ) calendar days following the Effective Date to investigate State and local laws to determine whether the Property must be brought into compliance with minimum energy conservation or safety standards or similar retrofit requirements as a condition of sale or transfer and the cost thereof, and to notify Seller that Buyer approves same. If Buyer fails to approve these requirements, if any, within the specified time, this Agreement shall be rendered null and void, Buyer’s entire Deposit shall be returned, and Buyer and Seller shall have no further obligations hereunder.

10) DEPOSIT TRANSFER: Buyer’s Deposit shall remain in escrow, until removal of the inspection contingencies set forth in paragraph(s) 5, 8.1, 8.2, 8.3 hereof. Upon removal of said contingencies, Buyer’s Deposit shall be delivered to escrow by Agent (it same has been held in trust by Agent); a grant deed duly executed by Seller, sufficient to convey title to Buyer, shall be delivered to escrow by Seller; and the Escrow Holder shall release immediately from escrow and deliver to Seller Buyer’s entire Deposit (including increases, if any). Seller shall hold Buyer’s Deposit subject to the remaining terms and conditions of this Agreement. Buyer acknowledges and agrees that, in the event Buyer defaults on this Agreement after removal of contingencies, Buyer’s Deposit is non-refundable and is forfeited to Seller. If the Property is made unmarketable by Seller or Seller defaults on this Agreement, the Deposit must immediately be returned to Buyer and the deed shall be returned to Seller.[3]

The undersigned Seller, LELAND REGENT PROPERTIES, a California limited partnership, makes the following Counter Offer to the offer contained in the Purchase Agreement executed by LAApartments.biz and/or Assignee as buyer on February 28, 2023, relating to that certain real property (the “Property”) located at 6731 Leland Way, Los Angeles, CA 90028.

Seller agrees to sell the Property to Buyer on the terms and conditions set forth in the aforementioned Purchase Agreement (including addenda, if any) with the following exceptions, additions and modifications:

1. Purchase Price to be eleven million two hundred thousand dollars ($11,200,000).

2. DEPOSIT INCREASE: Upon removal of the inspection contingencies set forth in paragraph(s) 5, 8.1, 8.2, 8.3 hereof, Buyer shall deposit in Escrow sufficient funds to increase the Deposit to seven hundred thousand dollars ($700,000). The entire Deposit shall be credited to the purchase price at the close of escrow unless otherwise provided herein.

3. Seller makes no representations nor warranties with regards to the Property. Buyer shall conduct Buyer’s own due diligence.

4. Buyer shall remove all contingencies by 5:00 PM EST, Friday, March 10, 2023.

5. Escrow Company shall be Wilshire Escrow (Eric Shewfelt). Title Company shall be Provident Title (Steve Poss).

6. There shall be no Arbitration Clause. Paragraph 32 of the Purchase Agreement is hereby deleted.

The foregoing terms and conditions supersede and replace any inconsistent provisions in the referenced Purchase Agreement. All other terms and conditions of said Purchase Agreement (including all terms and conditions related to Agent’s commission) shall remain in full force and effect. The Purchase Agreement (including any previous Counter Offers or Amendments) and this Counter Offer, taken together, shall constitute the entire agreement of the parties. If this Counter Offer is not accepted in writing by Buyer and an executed copy delivered to Seller, or Rick Raymundo/Matthew Maun, Seller’s authorized agent, on or before Wednesday, March 8, 2023, this Counter Offer shall be null and void, Buyer’s entire deposit shall be returned, and neither Seller nor Buyer shall have any further rights or obligations hereunder. The date on which Buyer accepts this Counter Offer in writing shall be the “effective date” of the Purchase Agreement between Seller and Buyer. Seller hereby acknowledges receipt of an executed copy of this Counter Offer.

The dispute boils down to the meaning of Section 4 of the Counter Offer. After reviewing the language in the Purchase Agreement and Counter Offer, the court agrees with CDF’s interpretation of the contract. The Purchase Agreement originally set the deadline for CDF to remove all contingencies (Sections 5, 8.1, 8.2, and 8.3) within seven calendar days of the effective date of the Purchase Agreement. Section 4 of the Counter Offer shortened that deadline to two days. CDF’s decision not to remove the contingencies in the specified time rendered the Purchase Agreement and Counter Offer null and void. In relevant part, Sections 8.1, 8.2, and 8.3 of the Purchase Agreement each provide, “If Buyer [CDF] fails to approve these requirements, if any, within the specified time, this Agreement shall be rendered null and void, Buyer’s entire Deposit shall be returned, and Buyer and Seller shall have no further obligations hereunder.” There is no provision in the Counter Offer which indicates the “null and void” language in Sections 8.1, 8.2 and 8.3 was superseded or replaced.

Leland argues the “null and void” clauses are inconsistent with Counter Offer. Focusing on the term “shall” in Section 4 of the Counter Offer, Leland argues that Section 4 mandated CDF to actively remove the contingencies, and CDF’s failure to do so triggered an automatic removal of the contingencies.[4] Such an interpretation, however, is foreclosed by the terms of the Counter Offer itself. First off, the Counter Offer does not include “automatic” removal language in the event CDF did not actively remove the contingencies in the specified time. Moreover, Section 2 of the Counter Offer contemplates an affirmative act of removal. The parties agree that CDF did not remove the contingencies. Given the absence of language in the Counter Offer indicating what would occur if CDF did not remove the contingencies, the court finds that the “null and void” language in Sections 8.1, 8.2, and 8.3 are valid and apply. The Purchase Agreement and Counter Offer were rendered null and void. CDF (and Leland) were thus released from their obligations under the agreements. Because the Purchase Agreement and Counter Offer are null and void, CDF could not have defaulted on the Purchase Agreement by failing to increase the deposit to the $700,000, among other things. CDF is entitled to the return of its deposit of $330,000.

Having found CDF is entitled to a return of the deposit as a matter of law, the court further finds CDF has carried its burden of showing there are no triable issues of material fact as to its breach of contract cause of action against Leland. “The elements of a breach of contract claim are that a contract was formed; that the plaintiff did everything required by the contract; that the defendant did not do something required by the contract; and that the plaintiff was harmed as a result.” (CSAA Ins. Exch. v. Hodroj (2021) 72 Cal.App.5th 272, 276; CACI No. 303.) Here, there is no dispute that CDF and Leland entered into a contract. And, as discussed, CDF did everything required by the contract and is thus entitled to a return of its deposit. It is also undisputed that Leland has not authorized the return of CDF’s deposit. CDF has incurred damages in the amount of the deposit ($330,000), plus costs, fees, and expenses associated with this action. (Shlanger Decl., ¶ 21.)

CDF pursues a second cause of action for Damages to Recover Monies Held in Escrow. CDF’s second cause of action is brought against Wilshire Escrow alone. Leland argues CDF’s motion should be denied as to the second cause of action because it is derivative of the first cause of action for breach of contract. CDF argues it is enforcing a right codified at Civil Code section 3380.

The court finds CDF’s second cause of action is not wholly derivative of its breach of contract claim. Although admittedly intertwined, the second cause of action is asserted against Wilshire Escrow only. And with good reason. Civil Code section 3380 states, “Any person having the possession or control of a particular article of personal property, of which he is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession.” Here, Wilshire Escrow, as the escrow holder, holds CDF’s deposit. Wilshire Escrow, and not Leland, may be compelled specifically to return the deposit.

The court notes, however, that CDF’s motion as to the second cause of action may be moot. On October 3, 2023, the parties entered into a stipulation which, in relevant part, provides as follows:

“Despite allegations contained in the Complaint and the CDF Cross-Complaint, the parties collectively acknowledge that Wilshire Escrow's involvement in the underlying dispute is that of an impartial party who has received conflicting instructions from Leland and CDF. Wilshire Escrow is indifferent as to who is entitled to the Disputed Funds.

Leland and CDF agree that: (i) except as expressly provided herein, neither Leland nor CDF will seek any affirmative relief from Wilshire Escrow other than relief concerning Wilshire Escrow’s failure to comply with that Order entered pursuant to this Stipulation; and (ii) that Wilshire Escrow need not participate in the Action but consents to the jurisdiction of the Court and agrees to distribute the Disputed Funds in accordance with any final order or judgment entered in the Action or mutual written agreement between Leland and CDF.”

(Stipulation Re Wilshire Escrow Company’s Involvement in Litigation, ¶¶ G and H.)

Based on the Stipulation, the court is inclined to deny the motion as moot because the issue has been resolved by stipulation. The court will hear from the parties.

Based on the foregoing, the court GRANTS CDF’s Motion for Summary Judgment, or in the alternative Summary Adjudication as to CDF’s breach of contract claim. The court DENIES Leland’s Motions for Summary Judgment.

The court will hear from the parties regarding CDF’s second cause of action given the parties’ Stipulation entered on October 3, 2023.

Kerry Bensinger

Judge of the Superior Court

[1] Bold and Italics added.

[2] The Purchase Agreement was signed by the parties on March 8, 2023, which is the Effective Date.

[3] Force majeure clause omitted.

[4] If the court were to consider extrinsic evidence, Leland’s submission does not help its cause. In support of its “automatic removal” interpretation, Leland submits an email from its counsel Aaron Iskowtiz (“Iskowtiz”) and counsel at Marcus & Millichap who negotiated the Purchase Agreement and Counter Offer with CDF. In an email sent from Iskowitz to Leland’s counsel, Iskowitz states, “Let’s add to the counter that they must accept by 5pm pacific today and open escrow tomorrow as a condition with no contingencies.” (Iskowitz Decl., Ex. C.) Contrary to Leland’s position, however, this evidence does not support their interpretation of Section 4. There is no language in this email that states the contingencies are automatically removed if CDF did not affirmatively do so.