Judge Lynne M. Hobbs, Case Number: 22STCV33738, Date: 2024-07-09 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV33738, Date: 2024-07-09 Tentative Ruling

Case Number: 22STCV33738 Hearing Date: July 9, 2024 Dept: 61

ADMIRE 3377 FAMILY LIMITED PARTNERSHIP vs KI JONG OH, et al.

TENTATIVE

Plaintiff Admire 3377 Family Limited Partnership’s Motion for Summary Judgment against Defendant Ki Jong Oh is GRANTED.

Plaintiff to give notice.

DISCUSSION

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.)

Plaintiff Admire 3377 Family Limited Partnership (Plaintiff) moves for summary judgment on their sole cause of action for breach of lease against Defendant Ki Jong Oh (Defendant).

“[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 presents Defendant’s responses to requests for admission, admitting the existence of the lease agreement in this action, admitting that Defendant vacated the premises in September 2022, admitting that Defendant at the time of vacating had failed to pay contract rent through the lease term, and that the record of payments attached to the requests for admission are an accurate reflection of the payments. (Robison Exh. 2.) Plaintiff’s property manager testifies that Defendant vacated the premises with $976,085.96 due in unpaid rent, which after application of the security deposition, yields $940,805.96 due in unpaid rent. (Kim Decl. ¶¶ 5–7.)

Plaintiff has satisfied its initial burden to show the absence of triable issues as to each element of its breach of lease claim. The burden now shifts to Defendant show triable issues exist as to that cause of action or a defense thereto.

Defendant in opposition argues that Plaintiff has failed to address any of the affirmative defenses raised in his answer. (Opposition at pp. 6, 10–11.) But a plaintiff moving for summary judgment on their claims has “no burden to disprove the listed defenses” in the defendant’s answer to satisfy their initial burden. (Los Angeles Unified School District v. Torres Construction Corp. (2020) 57 Cal.App.5th 480, 508.) These defenses furnish no basis to deny the motion except insofar as Defendant presents admissible evidence to show triable issues of fact exist as to his defenses.

Defendant relies upon the defenses of contractual impossibility and Civil Code § 1511 as defenses to the present motion. (Opposition at p. 12.) Specifically, Defendant argues that the government-ordered closure of the premises during the COVID-19 pandemic constituted an irresistible superhuman cause excusing performance of the lease. (Opposition at pp. 12–17.) Defendant also argues that performance was excused by the defense of frustration of purpose. (Ibid.)

The doctrine of frustration 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.

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. Governmental acts that merely make performance unprofitable or more difficult or expensive do not suffice to excuse a contractual obligation.

(SVAP III Poway Crossings, LLC v. Fitness International, LLC (2023) 87 Cal.App.5th 882, 895, internal quotation marks, citations, and alterations omitted.)

“[W]here commercial frustration does apply, the “legal effect ... is the immediate termination of the contract. . . . [T]he application of the doctrine of frustration under California law compels the termination of the contract, the law does not recognize the ‘temporary’ frustration defense.” (Id. at p. 896.)

Simultaneously, Civil Code § 1511 states that performance of an obligation is excused “[w]hen such performance or offer is prevented or delayed by the act of the creditor, or by the operation of law,” and “[w]hen 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, sudb. (1), (2).)

As an initial matter, it should be noted that Defendant submits no evidence in support of its affirmative defenses. Defendant provides links to a March 2020 Los Angeles County order in its separate statement directing the pandemic closure of “[g]yms and fitness centers.” (Defendant’s Separate Statement No. 2.) Another entry on the separate statement states that Defendant’s “business was negatively affected not as a result of its own actions, but because of the supervening causes of the Pandemic and applicable regulations,” citing for this purpose on Defendant’s unverified answer. (Defendant’s Separate Statement No. 4.) Defendant thus presents no actual evidence of negative effects resulting from the pandemic or closure orders.

But assuming the truth of these assertions, Defendant’s affirmative defenses remain unsupported. The defense of impossibility under Civil Code § 1511 does not apply, because the doctrine of impossibility or impracticability applies to the party’s obligations under the contract — in this case to pay rent. (See SVAP III Poway Crossings, LLC, supra, 87 Cal.App.5th at p. 893.) As such, impossibility does not apply, because “[t]he government closure orders did not make it illegal for [Defendant] to pay rent.” (Ibid.)

Nor is there any basis for application of the doctrine of frustration of purpose, although this doctrine might excuse the performance of a rental contract based on the government-ordered closure of a business. This is because the effect of frustration of purpose is the “immediate termination of the contract.” (Id. at p. 896.) There is no such thing as “temporary” frustration of purpose in California. (Ibid.)

Here, it is undisputed that Defendant remained in possession of the premises for the full duration of the lease term, even as the closure orders went into effect. (Robinson Decl. Exh. 2.) The frustration of purpose doctrine therefore “did not excuse [Defendant] from its obligation to pay rent (even if the lease was an “installment contract”) because [Defendant] did not attempt to rescind the lease and instead remained in possession of the premises.” (KB Salt Lake III, LLC v. Fitness Intern., LLC (2023) 95 Cal.App.5th 1032, 1057.)

There are therefore no triable issues as to the elements of Plaintiff’s claims, or Defendant’s affirmative defenses. The motion is therefore GRANTED.