Judge: Lee W. Tsao, Case: 21STCV34647, Date: 2024-03-20 Tentative Ruling

Case Number: 21STCV34647    Hearing Date: March 20, 2024    Dept: C

ALONDRA & PIONEER PROPERTY, LLC v. H MART NORWALK LLC

CASE NO.: 21STCV34647

HEARING:  03/20/24

#7

Defendant/Cross-Complainant H MART NORWALK LLC’S Motion for Summary Adjudication is DENIED.

Opposing Party to give notice.

This is a breach of lease action between a commercial lessor and lessee. Plaintiff/Cross-Defendant Alondra & Pioneer Property, LLC leased the building to H Mart Norwalk, LLC on August 22, 1989. On October 8, 2019, a fire ignited at the subject property. Plaintiff/Cross-Defendant seeks compensation for the resulting property damage and loss of rental income. Defendant/Cross-Complainant seeks compensation for abatement of rent on the grounds that Plaintiff/Cross-Defendant did not repair the subject property following the fire.

Defendant/Cross-Complainant seeks summary adjudication of the breach of lease and constructive trust causes of action in its cross-complaint.

Requests for Judicial Notice

Defendant/Cross-Complaint seeks judicial notice of Los Angeles County Department of Public Health Official Inspection Report dated October 8, 2019 under Evidence Code sections 452 and 453. However, Defendant/Cross-Complaint does not specify which grounds it seeks judicial notice. A legal proposition asserted without apposite authority fails. (People v. Taylor (2004) 119 Cal.App.4th 628, 643.) Thus, the Court denies the request.

Even if the Court were asked to take judicial notice of the inspection report under Evidence Code 452, subdivision (c ) (official acts of any state of the United States), the Court cannot accept the truth of factual matters which might be deducted from the report. (Ragland v. U.S. Bank Nat’l Ass’n (2012) 209 Cal.App.4th 182, 193-194.)  Judicial notice is limited to the existence of the report, not its contents. (Ibid.)

Plaintiff/Cross-Defendant seeks judicial notice of Declaration of Craig McKenna filed in Los Angeles Superior Court Case No. 20NWCV000588 under Evidence Code section 452, subdivision (d). The Court grants the request.

Evidentiary Objections

Plaintiff/Cross-Defendant objects to statements in the Declaration of Jason Joo Park. The Court rules as follows:  

1.    Overruled

2.    Overruled

3.    Overruled

4.    Sustained

5.    Overruled

6.    Overruled

7.    Overruled

8.    Sustained

9.    Sustained

10.  Overruled

11.  Sustained

12.  Sustained

Legal Standard

“[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.”  (Code of Civ. Proc., § 437c, subd. (c).)  The moving party bears the initial burden of production to make a prima facie showing no triable material fact issues.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  If the moving party meets this burden, the burden shifts to the opposing party to make a converse prima facie showing that a triable issue of material fact exists. (Ibid.) 

Plaintiffs may shift the burden of proof by submitting evidence as to every element of the cause of action. (Code Civ. Pro., §437c, subd. (p)(1); WRI Opportunity Loans II, LLC v. Cooper (2007) 154 Cal.App.4^th 525, 532.)

Implied Warranty of Habitability

Defendant/Cross-Complainant asserts that it can seek retroactive reimbursement for the period in which the rented premises was in an unfit condition for use. However, Defendant/Cross-Defendant did not plead breach of implied warranty of habitability in the cross-complaint. The pleadings serve as the “outer measure of materiality” in a summary judgment motion, and the motion may not be granted or denied on issues not raised by the pleadings. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258.) Thus, the Court does not adjudicate this issue.

Breach of Lease

The Court denies summary adjudication as to this cause of action because Defendant/Cross-Complainant has not pleaded excuse of performance or proven material breach.

Defendant/Cross-Complainant asserts that the express terms of the lease require abatement of rent and “make clear” that Plaintiff/Cross-Defendant was responsible for the repairs. Defendant/Cross-Complaint also asserts that Alondra's failure to repair the fire damage rendered the property unusable; thus, it had no right to collect rent from October 2019 through January 2021. Nonetheless, Defendant/Cross-Complaint states that it paid no less than $408,961.29 of rent during this period.

To prevail on a cause of action for breach of lease, the plaintiff must prove the following: (1) the contract, (2) the plaintiff’s performance of the lease or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff. (See Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

Defendant/Cross-Complainant submits the lease as evidence. (UMF #1.) The Court finds Defendant/Cross-Complainant met its burden of proof as to the first element.

The Court adjudicates the second and third elements together because Defendant/Cross-Complaint asserts that Plaintiff/Cross-Defendant’s failure to repair the fire damage rendered the property unusable, and it had no right to collect rent from October 2019 through January 2021. However, because Defendant/Cross-Complainant may not rely on the contents of the inspection report, the record contains no admissible evidence regarding the extent of the fire damage or any support for Defendant/Cross-Complainant’s assertion that the store was unusable.  Whether a breach of an obligation is a material breach to excuse performance by the other party is a question of fact. (Brown v. Grimes (2011) 192 Cal.App.4th 265, 277.)  The Court determines that Defendant/Cross-Complainant has failed to demonstrate, on this record, that Plaintiff/Cross-Defendant’s failure to repair the fire damage was a material breach of the lease.  Defendant/Cross-Complainant has not met its burden of proof as to the second and third elements. 

Further, the pleading of excuse or waiver of performance of conditions precedent requires specific, not general allegations. (Careau & Co. v. Sec. Pac. Bus. Credit (1990) 222 Cal.App.3d 1371, 1391.) Here, Defendant/Cross-Complaint has not pleaded specific allegations about excuse or waiver of performance of conditions precedent. It states, “Cross-Complainant performed all conditions, covenants, and obligations on its part to be performed pursuant to the Lease except where excused, released, or waived by Cross-Defendant.” (Cross-Complaint, ¶ 8.) These general allegations are not adequate. (See, e.g. Careau & Co. v. Sec. Pac. Bus. Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390.) The issues framed by the pleadings are the only issues a motion for summary judgment must address. (Physicians Comm. For Responsible Medicine v. McDonald’s Corp. (2010) 187 Cal.App.4th 554, 568.)

Thus, on two separate grounds, Defendant/Cross-Complaint has not met its burden on the second and third elements.

The Court will not adjudicate the fourth element of damages.

Thus, Defendant/Cross-Complaint has not met its burden to prove that no triable issue of material facts exists that breach of lease occurred.

The Court denies summary adjudication as to the breach of lease cause of action.

Constructive Trust

Defendant/Cross-Complaint asserts that Plaintiff/Cross-Defendant obtained the rent during the abatement period due to mistake and that Plaintiff/Cross-Defendant continues to detain that money today.

In an action for constructive trust, Plaintiff must prove the following: 1) a wrongful act (underlying claim incorporated into the cause of action), 2) specific, identifiable property or property interest, or excuse for inability to describe it, 3) plaintiff’s right to the property; and 4) defendant’s title to the property or property interest. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 76.) Plaintiff need only show that the acquisition of the property was wrongful and that the keeping of the property by the defendant would constitute unjust enrichment. (Calistoga Civic Club v. Calistoga (1983) 143 Cal.App.3d 111,116.)

The premise of Defendant/Cross-Complainant’s argument seems to be that Plaintiff/Cross-Defendant’s failure to repair the fire damage rendered the property unusable, and it had no right to collect rent from October 2019 through January 2021. As discussed above, Defendant/Cross-Complainant has not proven that a breach of the obligation to repair is a material breach that excuses performance by the other party. Thus, on this ground, Defendant/Cross-Complainant has not met its burden for summary adjudication as to constructive trust.

Further, Defendant/Cross-Complaint pleads, “Cross-Defendant, has not returned to Cross-Complainant the over payments of rent or consideration for the Release.” (Cross-Complaint, ¶ 29.) However, Defendant/Cross-Complainant does not argue consideration of the release.

Defendant/Cross-Complainant also pleads, “Cross-Defendant obtained this money due and owing to Cross-Complainant as a result of improper receipt, delivery, or possession of such sums.” (Cross-Complaint, ¶ 30.) However, Defendant/Cross-Complainant does not plead mistake. As discussed above, the issues framed by the pleadings are the only issues a motion for summary judgment must address. (Physicians Comm. For Responsible Medicine v. McDonald’s Corp., supra, 187 Cal.App.4th 554, 568.)

Thus, Defendant/Cross-Complaint has not met its burden to prove that no triable issue of material facts exist that a constructive trust formed.

Hence, the Court denies the motion for summary adjudication as to the constructive trust cause of action.

For the foregoing reasons, the Court DENIES Defendant/Cross-Complainant H MART NORWALK LLC’S Motion for Summary Adjudication.