Judge Mark E. Windham, Case Number: 23STLC06629, Date: 2024-07-15 Tentative Ruling

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Defendant West LA Academy of Dance, LLC’s Motion for Summary Judgment is GRANTED. DEFENDANT IS TO FILE AND SERVE A PROPOSED JUDGMENT WITHIN 20 DAYS OF THIS ORDER.

Plaintiff Dance Studio No. 1, Inc. (“Plaintiff”) filed the instant action for breach of contract, open book account, and account stated against Defendant West LA Academy of Dance, LLC (erroneously sued as “Defendant West LA Academy of Dance, LLC aka West Los Angeles Academy of Dance”) on October 16, 2023. Defendant filed its answer on January 17, 2024.

Defendant filed the instant Motion for Summary Judgment on April 29, 2024. Plaintiff filed an opposition on June 28, 2024 and Defendant replied on July 8, 2024.

The parties entered into a subletting agreement on October 20, 2021. (Compl., ¶5.) Pursuant to the terms of the agreement, Defendant purchased the “Student Register” and rented studio space from Plaintiff at the Dance Studio No. 1 (“DS1”) located at 1212 Pico Blvd. in Santa Monica, California (“Premises”) for $120,000. (Ibid.) Defendant promised to pay Plaintiff $10,000.00 per month to rent the Premises, the right to use Plaintiff’s programs, Plaintiff’s help with the transition, evaluations, and ISTD exams in March. (Ibid.) Defendant breached the agreement on September 14, 2022 by failing to make final payments to Plaintiff in the amount of $20,000.00. (Id. at ¶6.) Plaintiff suffered damages of $20,000.00 plus interest of ten (10) percent per annum from September 14, 2022. (Id. at ¶8.) These allegations support causes of action for breach of contract, open book account, and account stated.

Defendant requests the Court take judicial notice of (1) the contract between Plaintiff, Dance Studio No. 1, Inc., and Defendant, West LA Academy of Dance LLC, dated December 20, 2021; and (2) the transcript of Deposition of Elizabeth Banke, Person Most Knowledgeable at Dance Studio No. 1, Inc. dated March 5, 2024. The request is broadly brought pursuant to Evidence Code sections 452 and 453, without citation to specific statutory language or subdivisions. (RJN, p. 2:1.) Plaintiff objects to the request on the grounds that the documents are not authenticated or verified, nor documents of which the Court can or may take judicial notice. In reply, Defendant argues that courts routinely take judicial notice of documents referenced in the pleadings, citing

Zakk v. Diesel (2019) 33 Cal.App.5th 431, in support of this proposition. Zakk, however, is not a case that discusses the legal standard for taking judicial notice of a contract attached to a complaint. It merely refers to the fact that in the trial court proceeding, the trial court judge took judicial notice of the parties’ agreement. (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 444.) The Court of Appeals did not address the plaintiff’s objections to the request for judicial notice. (Id. at 446.) Nor has Defendant shown that judicial notice of a deposition transcript is proper. No specific authority is cited for this request. Therefore, Defendant’s request for judicial notice is denied.

Plaintiff objects to admission of the transcript of Deposition of Elizabeth Banke, Person Most Knowledgeable at Dance Studio No. 1, Inc. dated March 5, 2024 as evidence on the grounds that the document was not authenticated. In reply, Defendant correctly argues that a deposition transcript can be authenticated by including the court reporter’s signed certification page. (Citing Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 523.) As the copy of the deposition transcript includes the signed certification page, it is properly authenticated. (Motion, Exh. 2, p. 82.) The objection to the deposition transcript is overruled.

A defendant seeking 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. (Code Civ. Proc., § 437c, subd. (p)(2).) Plaintiff is under no evidentiary burden to produce rebuttal evidence until Defendant meets its initial moving burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 839-840.)

An action for breach of contract must demonstrate the following elements: (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach; and (4) the resulting damages to the plaintiff. (D’Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.) Defendant moves for summary judgment on the grounds that Plaintiff cannot prove the elements of breach and/or damages.

Regarding breach of the contract terms, Defendant argues it paid $20,000.00 on January 1, 2022 for the student registry in accordance with the contract terms. (Motion, Separate Statement, Fact No. 5; Exh. 5 “Banke Depo.”, p. 50:1; Exh. 3 “MacFarlan Decl.”, p. 2:6.) The contract thereafter provides that Plaintiff will pay $10,000.00 per month due on the first of every month, with the first payment due January 10, 2022, to rent the studio, the right to use Plaintiff’s programs, help with the transition, evaluations, and ISTD exams in March. (Motion, Separate Statement, Fact No. 7; Exh. 1.) Defendant paid $10,000.0 every month from January 2022 to August 2022 pur. (Motion, Separate Statement, Fact No. 6; No. 6; Exh. 6 “Banke Depo.”, p. 49:6-11; MacFarlane Decl., p. 1:6; Exh. 4 “Kalantaryan Decl.”, p. 1:13.) Defendant contends that January 2022 through August 2022 was the duration of the agreement because Defendant’s landlord terminated its lease effective August 24, 2022. (Motion, Separate Statement, Fact No. 6; Exh 1, p. 2; MacFarlane Decl., ¶¶5-6.) The agreement states that Defendant would be required to continue paying Plaintiff $10,000.00 a month, up to $120,000.00, if Defendant (1) contracts directly with Plaintiff’s landlord; and (2) Defendant wishes to purchase the inventories from Plaintiff. (Motion, Separate Statement, Fact No. 7; Exh 1, p. 2; MacFarlane Decl., ¶6.) Defendant never contracted directly with Plaintiff’s landlord. ((Motion, Separate Statement, Fact No. 8; MacFarlane Decl., ¶¶6-7.)

This evidence carries Defendant’s initial burden of proof to demonstrate that it did not breach the terms of the parties’ agreement. Defendant made payments as required by the agreement until the termination of Plaintiff’s lease agreement by the landlord. This also demonstrates that Plaintiff was not damaged in the amount of $20,000.00, as there was no agreement between the parties for Defendant to pay that amount to Plaintiff. Likewise, for the open book account and account stated causes of action, for which it is alleged Defendant owes Plaintiff a balance of $20,000.00, Defendant has carried its initial burden of proof that the undisputed facts show no such balance due. (See Compl., ¶¶8, 12, 15.)

The burden now shifts to Plaintiff to demonstrate the existence of a triable issue of material fact regarding Defendant’s breach of the agreement and damages incurred by Plaintiff.

Plaintiff’s Burden to Demonstrate the Existence of a Triable Issue of Material Fact

In opposition, Plaintiff argues that Defendant misstates the terms of the agreement. Specifically, in addition to requiring payment of $20,000.00 for Plaintiff’s student registry, the agreement required Defendant to pay other amounts if it wanted to purchase Plaintiff’s assets and to make monthly payments to sublease Plaintiff’s studio. (Opp., Separate Statement, Fact Nos. 5-7; Banke Decl., ¶7; Exh. 1 at ¶¶3-5, 7; Exh. 2 “Banke Depo.” pp. 43:4-14; 49:12-50:1; 60:15-61:1.) The separate statement cites “the third, fourth, fifth and seventh un- numbered paragraphs”; paragraph 7 sets forth the conditions for additional payment: “If Mariah at a later date gets a contract directly with the landlord and wishes to purchase the inventories from DS1, Mariah will keep paying $10,000 per month up to the agreed sum of $120,000.” (Opp., Separate Statement, Fact No. 5; Banke Decl., Exh. 1 at ¶¶3-5, 7.) As noted above, there are two conditions for the additional payment: Defendant contracts directly with Plaintiff’s landlord and wishes to purchase Plaintiff’s inventories. While Plaintiff presents evidence that Defendant did purchase its inventories it does not show that Defendant entered into a direct contract with the landlord. (Opp., Separate Statement, Fact Nos. 7-8; Banke Decl., ¶7; Exh. 1 at ¶¶3-5, 7; Exh. 2 “Banke Depo.” pp. 43:4-14; 49:12-50:1; 60:15-61:1.) In fact, Plaintiff admits that it lacks evidence regarding any direct agreement Defendant made with the landlord. (Opp., Separate Statement, Fact No. 8.) Therefore, Plaintiff has not demonstrated the existence of a triable issue of material fact regarding the lack of any breach of the terms of the agreement or any resulting damages.

The Court additionally notes that Plaintiff confusingly argues in its opposition memorandum that “there is a genuine dispute over the terms of the contract regarding whether or not the Defendant was required to make additional payments for the material assets of Plaintiff’s dance studio.” The opposition, however, does not explain why the Court should find is such a dispute over the terms exists, other than that Plaintiff believes there is a dispute. The opposition does not explain why Plaintiff’s belief overrides the terms of the parties’ written agreement or otherwise creates a balance due and owing.

Therefore, Defendant West LA Academy of Dance, LLC’s Motion for Summary Judgment is GRANTED. DEFENDANT IS TO FILE AND SERVE A PROPOSED JUDGMENT WITHIN 20 DAYS OF THIS ORDER.