Judge: Mark C. Kim, Case: 22LBCV00097, Date: 2022-08-02 Tentative Ruling
Case Number: 22LBCV00097 Hearing Date: August 2, 2022 Dept: S27
Plaintiff, Broadway & Pine, LLC
filed this action against Defendants, Mark Mirzenmacher, Collin Mitzenmacher,
and Shoreline Cellars, Inc. for commercial properly unlawful detainer. Plaintiff filed the action on 3/07/22, and
the case is set for non-jury trial on 9/02/22.
a. Relief
Sought
Plaintiff seeks summary judgment on
the complaint, contending the undisputed facts show Defendants are in breach of
the parties’ commercial tenancy agreement, have been given proper notice of the
breaches, and have failed to timely cure the breaches.
b. Opposition
As of the drafting of this
tentative ruling, the Court has not received opposition to the motion. Defendants may file written opposition up to
8/01/22, and may present oral opposition to the motion at the time of the hearing,
with or without written opposition. CRC
3.1351(b), (c). The Court will consider
whether any written and/or oral opposition raises triable issues of material
fact at the time of the hearing.
c. Burdens
on Summary Judgment
Summary judgment is proper “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 judgment as a matter of law.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or
adjudication, he must show that either “one or more elements of the cause of
action, even if not separately pleaded, cannot be established, or that there is
a complete defense to that cause of action.”
(Id. at §437c(o)(2).) A defendant may satisfy this burden by
showing that the claim “cannot be established” because of the lack of evidence
on some essential element of the claim.
(Union Bank v. Superior Court (1995)
31 Cal.App.4th 574, 590.) Once the
defendant meets this burden, the burden shifts to the plaintiff to show that a “triable
issue of one or more material facts exists as to that cause of action or
defense thereto.” (Ibid.)
The moving party bears the initial
burden of production to make a prima facie showing that there are no triable issues
of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must
show either (1) that one or more elements of the cause of action cannot be
established or (2) that there is a complete defense to that cause of
action. (Id. at §437c(p).) A
defendant may discharge this burden by furnishing either (1) affirmative
evidence of the required facts or (2) discovery responses conceding that the
plaintiff lacks evidence to establish an essential element of the plaintiff's
case.
[A] defendant may simply show the
plaintiff cannot establish an essential element of the cause of action “by
showing that the plaintiff does not possess, and cannot reasonably obtain,
needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or
negating an element (e.g., causation), a defendant moving for summary judgment
has the option of presenting evidence reflecting the plaintiff does not possess
evidence to prove that element. “The defendant may, but need not, present
evidence that conclusively negates an element of the plaintiff's cause of
action. The defendant may also present evidence that the plaintiff does not
possess, and cannot reasonably obtain, needed evidence—as through admissions by
the plaintiff following extensive discovery to the effect that he has
discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial
evidentiary showing may “consist of the deposition testimony of the plaintiff's
witnesses, the plaintiff's factually devoid discovery responses, or admissions
by the plaintiff in deposition or in response to requests for admission that he
or she has not discovered anything that supports an essential element of the
cause of action.” (Lona v. Citibank, N.A.,
supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the
plaintiff does not possess evidence to support an element of the cause of
action by means of presenting the plaintiff's factually devoid discovery
responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co.
(1999) 69 Cal.App.4th 64, 83.)
Thus, a moving defendant has two means
by which to shift the burden of proof under the summary judgment statute: “The
defendant may rely upon factually insufficient discovery responses by the
plaintiff to show that the plaintiff cannot establish an essential element of
the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant
may utilize the tried and true technique of negating (‘disproving’) an
essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)
Leyva v. Garcia (2018) 231 Cal.Rptr.3d.
814, 819-820.
Until the moving defendant has
discharged its burden of proof, the opposing plaintiff has no burden to come
forward with any evidence. Once the moving defendant has discharged its burden
as to a particular cause of action, however, the plaintiff may defeat the
motion by producing evidence showing that a triable issue of one or more material
facts exists as to that cause of action.
(Id. at §437c(p)(2).) On a motion for summary judgment, the moving
party's supporting documents are strictly construed and those of his opponent
liberally construed, and doubts as to the propriety of summary judgment should
be resolved against granting the motion.
(D’Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1, 21.)
d. Moving
Burden
Plaintiff, through its moving
papers and evidence, met its moving burden to establish Defendants breached the
parties’ agreement in four ways, that Plaintiff gave notice of each breach, and
that Defendants failed to cure the breaches.
Plaintiff first provides evidence
that Defendants were required to maintain insurance naming Plaintiff as an
additional insured; they were given notice of their obligation to do so, but
failed to respond. They were served with
a three-day notice to perform or quit, but again failed to perform.
Plaintiff next provides evidence
that Defendants were required to maintain the HVAC system at the property and have
a maintenance contract in place. Plaintiff
gave Defendants notice of their obligation to perform, and they failed to do
so. Plaintiff served Defendants with a
three-day notice to perform or quit, and they again failed to perform.
Plaintiff also provides evidence
that the individual defendants, who were guarantors on the parties’ rental
agreement, were obligated to provide their own financial information on an
annual basis, but failed to do so despite a request and subsequent three-day
notice to perform or quit.
Finally, Plaintiff provides
evidence that Defendants have not paid the required rent per the parties’
agreement since 3/01/21, despite a request to do so and a three-day notice to
pay rent or quit. Defendants are in
arrears on their rent in the amount of $92,990.10 as of 2/01/22, with additional
rental obligations accruing on a monthly basis.
The foregoing is sufficient to meet
the moving burden to show Plaintiff is entitled to judgment as a matter of law
on the complaint. Unless Defendants
appear and present evidence sufficient to raise a triable issue of material
fact on each of the above issues, the motion will be granted.
Plaintiff is ordered to give notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at www.lacourt.org. If the department
does not receive an email indicating the parties are submitting on the tentative
and there are no appearances at the hearing, the motion may be placed off calendar.
If a party submits on the tentative, the
party’s email must include the case number and must identify the party submitting
on the tentative. If any party does not submit on the tentative, the party should
make arrangements to appear remotely at the hearing on this matter.