Judge: Nick A. Dourbetas, Case: 2019-01117321, Date: 2022-09-02 Tentative Ruling

1. Motion for Summary Judgment and/or Adjudication

2. Motion for Summary Judgment and/or Adjudication

Motion for summary judgment / adjudication by defendants AHNS, Waki, Moore, Quilligan:

Defendants Associated Head & Neck Surgeons of Greater Orange County, Inc., Eric Waki, H. Christopher Moore, and Christopher Quilligan’s motion for summary judgment, or alternatively, summary adjudication, is DENIED.  (Code Civ. Proc., § 437c [authorizing motion].) 

Summary adjudication is denied because moving parties’ notice of motion and separate statement do not comply with Cal. Rules of Court, Rule. 3.1350, subds. (b) and (d).  (Cadlo v. Owens–Illinois, Inc. (2004) 125 Cal.App.4th 513, 523 [court’s discretion to deny summary judgment / adjudication based on failure to comply with rule].)

Summary judgment is denied because moving parties have not met their initial burden of presenting evidence showing that plaintiff cannot establish an essential element, or that there is a complete defense.  (Code Civ. Proc., § 437c, subd. (p)(1) [burden]; Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements of breach of contract].)  Moving parties have not presented admissible evidence showing that plaintiff failed to deliver possession of the subject premises in accordance with the lease terms within 60 days of the “Commencement Date,” which is an undisputed condition precedent to moving parties’ right to cancel.  (Moving Parties’ Separate Statement, Fact No. 28.)  The lease (Waki Decl., Ex. A) does not require the premises to be delivered in a condition “suitable” for use as a medical office, as moving parties contend, and the requirement that the premises be delivered in “turnkey condition” (Id., Ex. A thereto) has additional conditions which moving parties have not shown were unsatisfied. 

Further, moving parties’ evidence does not necessarily show that plaintiff never tendered possession of the premises, nor does it show that moving parties never took possession of the premises, prior to moving parties’ notice of cancellation; the evidence is equally consistent with defendants taking possession of the premises sometime after 12-27-17, as is alleged in the Complaint, and subsequently vacating the premises in connection with their purported cancellation.  (Complaint, ¶¶ 11-14; see also Moving Parties’ Ex. 7 [plaintiff’s response to Special Interrogatory No. 29].)

Plaintiff Yorba Linda McCormack Business Park Partnership shall give notice.

Motion for summary judgment / adjudication by defendant Kim:

Defendant Jason Kim’s motion for summary judgment, or alternatively, summary adjudication, is DENIED.  (Code Civ. Proc., § 437c [authorizing motion].) 

Summary adjudication is denied because moving party’s notice of motion and separate statement do not comply with Cal. Rules of Court, Rule. 3.1350, subds. (b) and (d).  (Cadlo v. Owens–Illinois, Inc. (2004) 125 Cal.App.4th 513, 523 [court’s discretion to deny summary judgment / adjudication based on failure to comply with rule].)

Summary judgment is denied because moving party has not met his initial burden of presenting evidence showing that plaintiff cannot establish an essential element, or that there is a complete defense.  (Code Civ. Proc., § 437c, subd. (p)(1) [burden]; Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements of breach of contract].)  As is the case with the motion by the remaining defendants, discussed above, moving party here has not presented admissible evidence showing that plaintiff failed to deliver possession of the subject premises in accordance with the lease terms within 60 days of the “Commencement Date,” which is an undisputed condition precedent to moving parties’ right to cancel.  (Moving Party’s Separate Statement, Fact No. 28.) 

As also discussed above in connection with co-defendant’s motion, moving party’s evidence here does not necessarily show that plaintiff never tendered possession of the premises, nor does it show that defendants never took possession of the premises, prior to defendants’ notice of cancellation; the evidence is equally consistent with defendants taking possession of the premises sometime after 12-27-17, as is alleged in the Complaint, and subsequently vacating the premises in connection with their purported cancellation. 

Plaintiff Yorba Linda McCormack Business Park Partnership shall give notice.