Judge: Randy Rhodes, Case: 21CHCV00637, Date: 2022-12-21 Tentative Ruling
Case Number: 21CHCV00637 Hearing Date: December 21, 2022 Dept: F51
Dept. F-51
Date: 12/21/22
Case #21CHCV00637
SUMMARY JUDGMENT
Motion filed on 8/19/22.
MOVING PARTY: Defendant/Cross-Complainant Devonshire
Reseda, LLC (“Defendant”)
RESPONDING PARTY: Plaintiff/Cross-Defendant Fitness
International, LLC (“Plaintiff”)
NOTICE: ok
RELIEF REQUESTED: An order granting summary judgment
in favor of Defendant/Cross-Complainant Devonshire Reseda, LLC, and against Plaintiff/Cross-Defendant
Fitness International LLC.
TENTATIVE RULING: Defendant’s motion for summary
judgment is granted.
REQUEST FOR
JUDICIAL NOTICE
Defendant’s Request for Judicial Notice (RJN) is granted as
to Exhibits 1–13. Defendant’s RJN is denied as to Exhibits 14–15.
Plaintiff’s RJN is granted as to Exhibits 1–42 and 47, and
denied as to Exhibits 43–44 and 48–51. Defendant’s objections to Plaintiff’s
RJN Exhibits 43–44 and 48–51are sustained. Defendant’s objection to Plaintiff’s
RJN Exhibit 47 is overruled.
EVIDENTIARY
OBJECTIONS
Plaintiff’s evidentiary objections, numbers 4–5, to the
declaration of Brent Sherman are sustained.
Plaintiff’s evidentiary objections, numbers 27–28, to the
declaration of Holly Tartaglino are sustained.
Defendant’s evidentiary objections, numbers 4–6 and 11, to
the declaration of Greg Gill are sustained.
Defendant’s evidentiary objections, numbers 6–21, 26, 30,
32–33, and 37–40, to the declaration of Diann D. Alexander are sustained.
BACKGROUND
Plaintiff leases certain real property
from Defendant for the operation of a fitness center located at 18679
Devonshire St., Northridge. On 3/12/20, Governor Newsom issued the “Safer at
Home” order, thereby preventing the operation of businesses, such as Plaintiff,
from allowing paying members to utilize the facilities. Notwithstanding a brief
reopening period from 6/12/20 to 7/13/20, the facility was barred from allowing
customers into the facility until 3/15/21, with limited entrance beginning on
that date, until full access restoration on 6/15/21.
Plaintiff did not pay the rent due
under its lease for the months of April, May, and June 2020, and on 6/12/20 the
parties amended the lease to defer a portion of the rent due, on the condition
that Plaintiff not commit any further monetary defaults. Plaintiff paid
Defendant pursuant to the amended agreement. After the facility was closed
again in July 2020, Plaintiff did not resume its payment of rent until
reopening in March 2021. With this action, Plaintiff seeks to recover the rent
it paid for the months that the facility was closed and declare those rent
payments as excused given the impacts to operations due to the government
shutdown orders.
On 8/20/21, Plaintiff filed its
complaint, alleging against Defendant the following causes of action: (1)
Breach of Written Contract (Lease) – Force Majeure; (2) Breach of Written
Contract (Lease) – Representations, Warranties & Covenants; (3) Common
Count – Monies Had and Received; (4) Common Count – Monies Paid By Mistake; (5)
Common Count – Monies Paid and Expended; (6) Declaratory Relief – Closure
Period; and (7) Declaratory Relief – Ongoing Restrictions.
On 10/4/21, Defendant filed its
cross-complaint against Plaintiff for Breach of Contract.
On 8/19/22, Defendant filed the
instant motion for summary judgment (“MSJ”) and RJN. On 10/19/22, Plaintiff
filed its opposition, evidentiary objections, and RJN. On 11/4/22, Defendant
filed its reply and evidentiary objections.
LEGAL STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT
The function of a motion for
summary judgment or adjudication is to allow a determination as to whether an
opposing party cannot show evidentiary support for a pleading or claim and to
enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c)
“requires the trial judge to grant summary judgment if 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.” (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.) “The function
of the pleadings in a motion for summary judgment is to delimit the scope of
the issues; the function of the affidavits or declarations is to disclose
whether there is any triable issue of fact within the issues delimited by the
pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 65, citing FPI Development, Inc. v. Nakashima
(1991) 231 Cal.App.3d 367, 381–382.)
As to each claim as framed by the
complaint, the defendant moving for summary judgment must satisfy the initial
burden of proof by presenting facts to negate an essential element, or to
establish a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005)
128 Cal.App.4th 1510, 1519–1520.)
Once the defendant has met that
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 a defense thereto.
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, 163.) Courts “liberally construe the evidence in support of
the party opposing summary judgment and resolve doubts concerning the evidence
in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006)
39 Cal.4th 384, 389.)
ANALYSIS
I.
Breach of Contract
Plaintiff’s first and second causes
of action allege breach of contract. In a cause
of action for breach of contract, a plaintiff must be able to establish “(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,
821.)
Here,
the parties entered the original lease agreement on 8/3/99. (Def.’s MSJ,
9:18–20.) As amended, the lease expires in 2032 with options to
extend to 2042. (Id., 9:26–27.) The parties do not dispute that the
6/12/20 amended lease is valid and enforceable. Rather, the parties dispute
whether Plaintiff’s nonpayment of rent was excused, and whether Defendant
breached the lease agreement.
A.
Plaintiff’s Excuses for Nonperformance
Defendant argues that
the pandemic restrictions on Plaintiff’s business operations never relieved
Plaintiff of its obligation to pay rents or seek an abatement of rents.
Defendant also cites to other actions where various California courts denied
relief to Plaintiff on similar or duplicate arguments.
Plaintiff argues that
rent was abated under the lease because the property was rendered untenantable.
Plaintiff further argues that the government shutdown constitutes an excused
event, thereby relieving Plaintiff of its rent payment obligation during the
impacted period under the force majeure provision of the lease agreement.
Plaintiff also reiterates its sought after relief on the basis of equitable
doctrine—frustration of purpose, impossibility, and impracticability. Finally,
Plaintiff argues that its performance obligations were excused under Civil Code
1511.
Abatement
Plaintiff argues that its obligation
to pay rent was excused and abated under section 15.4 of the lease agreement.
Section 15.4 states, in relevant part:
15.4 ABATEMENT OF
RENT. If the Premises or any part thereof is
rendered untenantable and neither party terminates this Lease pursuant to
foregoing provisions of this Article XV, then Tenant's obligation for the
payment of Minimum Rent and Additional Rent shall be abated from the date of
the casualty in the ratio that the Floor Area of the portion of the Premises
which is rendered untenantable bears to the total Floor Area of the Premises.
(Def.’s App.
of Exhibits “AOE”, Ex. A [emphasis in original].)
Plaintiff argues that
the shutdown restrictions rendered the premises “untenantable,” and thus rent
is abated during the affected months. (Pl.’s Opp., 10:5–7.) However, as
Defendant observes, Section 15.4 falls under Article XV of the lease agreement,
entitled “Damage and Destruction.” (Def.’s Reply, 5:28–6:1; Ex. A to AOE, p. 30.)
The condition of untenantability within the context of this Article is triggered
by a “casualty” resulting in some sort of physical damage or destruction to the
property which would necessitate repairs. (Ex. 1 to AOE, § 15.1.)
Here, Plaintiff does
not argue that any such casualty has rendered the property “untenantable,” but
instead argues that the government orders prohibited it from opening its doors
for business. The Court rejects this interpretation of Section 15.4 of the
lease, and finds that the government orders did not render the property
“untenantable” under its intended meaning. Therefore, Section 15.4 is
inapplicable in this action, and Plaintiff was not entitled to abatement of
rent thereunder.
Accordingly,
Defendant has met its initial burden to show that there is no triable issue of
material fact as to abatement under Section 15.4 of the lease agreement.
Plaintiff has not met its responsive burden to proffer evidence to show a
triable issue.
Force Majeure
Generally, a party
establishes the defense of force majeure where that party can demonstrate that
“under the particular circumstances there was such an insuperable interference
occurring without the parties’ intervention as could not have been prevented by
prudence, diligence and care.” (Horsemen’s Benevolent & Protective Assn.
v. Valley Racing Assn. (1992) 4 Cal.App.4th 1538, 1564.) “A force majeure
clause is not intended to buffer a party against the normal risks of a contract
… A force majeure clause interpreted to excuse the buyer from the risk he
expressly assumed would nullify a central term of the contract.” (Id. at
1565.) Therefore, “where the ‘terms were specifically bargained for by both
parties…the ‘doctrine’ of force majeure should not supersede the specific terms
bargained for in the contract.” (Sun Pac. Mtkg. Coop. v. Dimare Fresh, Inc. (E.D.
Cal. 2010) 2010 U.S. Dist. LEXIS 83176, citing Perlman v. Pioneer Limited
Partnership (1990) 918 F.2d 1244, 1248.)
The force majeure
provision of the lease agreement at issue reads, in pertinent part, as follows:
22.3 FORCE MAJEURE.
If either party is delayed or hindered in or prevented from the performance of
any act required hereunder because of strikes, lockouts, inability to procure
labor or materials, failure of power, restrictive Laws, riots, insurrection,
war, fire or other casualty or other reason of a similar or dissimilar nature
beyond the reasonable control of the party delayed, financial inability
excepted (any "Force Majeure Event"), performance of such act shall
be excused for the period of the Force Majeure Event, and the period for the
performance of such act shall be extended for an equivalent period. Delays or
failures to perform resulting from lack of funds or which can be cured by the
payment of money shall not be Force Majeure Events. The provisions of this
Section 22.3 shall not
apply to Landlord or
Tenant's obligations pursuant to the Work Letter attached hereto as Exhibit C
and shall not extend the Rent Commencement Date or any date or occurrence based
on which the Rent Commencement Date is calculated or determined.
(Ex. A to AOE
[emphasis in original].)
Defendant argues that
the shutdown orders causing the closure of the property did not constitute a
force majeure event as defined under Section 22.3 because the orders did not
affect Plaintiff’s ability to perform its obligation under the lease
agreement, which was to pay rent. (Def.’s MSJ, 18:8–13.) The language of the
lease unambiguously states that “[d]elays or failures to perform resulting from
lack of funds or which can be cured by the payment of money shall not be Force
Majeure Events.” (Ex. A to AOE.) Defendant also cites to several cases under
California law which reject the application of the same force majeure provision
to Plaintiff’s obligation to pay rent, of which the Court takes judicial
notice. (Def.’s MSJ, 19:5–20:23.) In addition, it is undisputed by the parties
that Plaintiff had the ability to pay rent at all times relevant to this
action. Accordingly, Defendant met its initial burden to show that no triable
issue of material fact exists as to the applicability of Section 22.3 to the
instant action.
Plaintiff contends
the government closure orders specifically barred Plaintiff from operating its business
as intended—a health and fitness facility. (Pl.’s Opp., 12:1–3.) According to
Plaintiff, said force majeure event prevented Plaintiff from receiving its
benefit of the bargain, thereby rendering payment of the rent impossible and impractical
and excusing Plaintiff’s non-payment. (Id., 15:3–5.) The payment of
money would not cure the force majeure event in that Plaintiff cannot pay the
State of California in order to resume health club operations. (Id.,
13:9–10.)
Here, the Plaintiff
appears to misunderstand its performance obligation under the “central” terms
of the lease agreement, which is to pay rent in exchange for Defendant’s
provision of the premises for Plaintiff’s possession, use, and quiet enjoyment
without hindrance and interruption. (Horsemen, 4 Cal.App.4th at 1565; Ex.
A to AOE.) As Defendant observes, it “had no obligation to ensure that [Plaintiff]
would be free [from] acts of a third party, including from government closure
orders.” (Def.’s Reply, 9:18–20.)
While a supervening
government ordered banned the public from utilizing the facilities, for
purposes of the subject motion only, the Court declines to find as a matter of
law that the moratorium was a force majeure event. The force majeure clause
requires a scenario actually impacting the fundamental elements of the contract
itself—an event impacting the actual provision of the facilities rendering the
premises unsafe or completely inaccessible due to fault in the facility itself.
(Horsemen, 4 Cal.App.4th at 1565; Ex. A to AOE.) Such a scenario is not
presented. The Court finds the plain language of the negotiated lease will not
support this interpretation under governing California law.
A commercial tenant’s obligation to
pay rent is independent from the landlord’s obligations under the lease. (Arnold
v. Krigbaum (1915) 169 Cal. 143, 145–146.) Plaintiff’s inability to operate
a fitness club due to restrictive COVID-19 laws and closure orders does not
excuse its failure to pay rent. Nothing in the lease states that Plaintiff is
excused from its obligation to pay rent if it is prevented from using the premises
as a fitness club.
Even if the closure orders were
considered a force majeure event, Plaintiff has not shown that its failure to
pay rent was proximately caused by such orders or other causes as described in
the agreement. (Exhibit A to AOE, § 22.3). Here, Plaintiff has not alleged that
the government closure orders caused it not to pay rent or otherwise affected
its ability to do so.
The Court finds that Section 22.3
of the lease agreement is inapplicable to the instant action, because the
government closure orders did not affect Plaintiff’s ability to perform its
essential obligation under the agreement, which was to pay rent. Accordingly,
Plaintiff has not met its responsive burden of show a triable issue of material
fact as to this issue.
Frustration of Purpose
Plaintiff alternatively argues that
its nonpayment of rent was excused by the doctrine of frustration of purpose. “The
elements of [the frustration of purpose] doctrine are as follows: Performance
remains possible, but the fundamental reason of both parties for entering into
the contract has been frustrated by an unanticipated supervening circumstance,
thus destroying substantially the value of performance by the party standing on
the contract.” (Cutter Laboratories, Inc. v. Twining (1963) 221 Cal.App.2d
302, 314–315.) “Even more clearly with respect to leases than in regard to
ordinary contracts the applicability of the doctrine of frustration depends on
the total or nearly total destruction of the purpose for which, in the
contemplation of both parties, the transaction was entered into.” (Lloyd v.
Murphy (1944) 25 Cal.2d 48, 53.) “With respect to frustration of purpose,
the doctrine applies when performance is possible but a supervening, fortuitous
event has virtually destroyed the value of the consideration to be rendered.” (Glendale
Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66
Cal.App.3d 101, 154.) “It is settled that if the parties have contracted with
reference (to the frustrating event) or have contemplated the risks arising
from it, they may not invoke the doctrine of frustration to escape their
obligations.” (Glenn R. Sewell Sheet Metal, Inc. v. Loverde (1969) 70
Cal.2d 666, 676.)
Here, Defendant argues that the
frustration of purpose doctrine should apply only where the entire value of the
contract has been destroyed. (Def.’s MSJ, 21:1–3.) Defendant notes that here, a
temporary shutdown order is insufficient to frustrate a multi-year lease ending
in 2032. (Id., 21:9–12.) Plaintiff argues that temporary frustration of
purpose is recognized under California law, which temporarily “suspends the
obligor’s duty to perform while the frustration exists but does not discharge
his duty.” (Pl.’s Opp. 16:1–6, quoting Maudlin v. Pac. Decision Sciences
Corp. (2006) 137 Cal.App.4th 1001, 1017–1018.)
As Defendants observe, this action
is distinguished from Maudlin because the Maudlin court applied
the doctrine of temporary frustration of purpose to potentially suspend a
corporation’s obligation to pay a retiree monies owed, on remand, due to the
corporation’s lack of financial ability. (137 Cal.App.4th at 1017–1018.) Here,
as previously mentioned, it is undisputed by the parties that
Plaintiff had the ability to pay rent at all times relevant to this action. Therefore,
the doctrine of temporary frustration of purpose is inapplicable to the instant
case. Accordingly, Defendant has met its initial burden of showing no
triable issue of material fact exists as to frustration of purpose excusing
Plaintiff’s nonperformance under the lease agreement.
Plaintiff disputes the purpose of
the lease agreement, and argues that it only entered into the agreement for the
express purpose of operating a health and fitness facility, and made
significant investments pursuant to its intended use of the premises. (Pl.’s
Opp., 16:23–17:8.) Contrary to Plaintiff’s contentions, the explicit purpose
of the lease itself is for Plaintiff to pay rent in exchange for Defendant’s
provision of defined space free from latent or patent defects, including local
municipal fees, utility provisions, and other required operational items. (Ex.
A to AOE, §§ 2.1–2.2.)
As Defendant observes, it made no
guarantee to Plaintiff of its right to operate its business as a gym throughout
the duration of the lease term. (Def.’s MSJ, 21:20–21.) In fact, the lease
explicitly permits Plaintiff to use the premises “for any alternate lawful use”
after the initial 10 years of the lease term. (Ex. A to AOE, § 8.2.) Moreover,
the agreement specifically mentions that restrictive laws would not excuse the
nonpayment of rent, as set forth in the above section discussing force majeure.
(Id., § 22.3.)
The purpose of the lease agreement
between the parties required Defendant to provide Plaintiff with the premises
in exchange for the payment of rent. As such, the Court finds that this purpose
was not frustrated by the government shutdown orders. Plaintiff has not met its
responsive burden to show a triable issue of material fact exists as to its
frustration of purpose defense.
Impossibility/Impracticability
“‘Impossibility’ is defined by
section 454 of the Restatement of Contracts, not only as strict impossibility
but as impracticability because of extreme and unreasonable difficulty,
expense, injury, or loss involved. Temporary impossibility of the character
which, if it should become permanent, would discharge a promisor's entire
contractual duty, operates as a permanent discharge if performance after the
impossibility ceases would impose a substantially greater burden upon the
promisor; otherwise the duty is suspended while the impossibility exists. … The
trial court's judgment indicates that the controversy was resolved upon the
theory of temporary impossibility and suspension due to military service.” (Autry
v. Republic Productions (1947) 30 Cal.2d 144, 148–149.) “A thing is
impossible in legal contemplation when it is not practicable; and a thing is
impracticable when it can only be done at an excessive and unreasonable cost.”
(Mineral Park Land Co. v. Howard (1916) 172 Cal. 289, 293.)
As set forth above, Plaintiff’s
performance obligation under the terms of the lease agreement was to pay rent
in exchange for the lease of the premises. “The government closure orders did
not render [Plaintiff’s] payment obligation impossible or impracticable.”
(Def.’s MSJ, 23:7–8.) In fact, one of the orders explicitly stated that
“nothing in this Order shall relieve a tenant of the obligation to pay rent.”
(Ex. 1 to Def.’s RJN.) Furthermore, as previously mentioned, there is no
dispute as to whether Plaintiff lacked the funds to pay the rent during the
relevant time period.
While the restrictions certainly
interfered with revenue generation, the obligations of the lease itself were not
rendered impossible due to any changed obligations in the payment of the rent. The
facilities were provided for full use, as required by the lease. (Ex. A to AOE,
§ 2.2.) The payment of rent is not dependent on the ability of the tenant to
operate a business without extrinsic government restrictions. The lease
provides the space for operation without consideration of the revenue source.
Nothing otherwise prevented Plaintiff from paying the rent from other sources
of revenue, as opposed to a business decision to decide on rent payment based
on the operation of a single unit, rather than the portfolio of locations
operated by Plaintiff. As such, Defendant has met its initial burden of showing
that there is no triable issue of material fact as to Plaintiff’s impossibility
and impracticability defenses to performance.
In opposition, Plaintiff proffers
evidence to argue that “the entire purpose of the Lease was to operate a health
club and fitness facility, which purpose was rendered illegal and impracticable
by government orders.” (Pl.’s Opp., fn. 12.) As set forth above, the Court
rejects Plaintiff’s interpretation of the objective purpose of the lease
agreement, thus rendering this responsive showing irrelevant and insufficient
to meet its responsive burden to show a triable issue of material fact.
Civil Code 1511
“The want of performance of an
obligation, or of an offer of performance, in whole or in part, or any delay
therein, is excused by the following causes, to the extent to which they
operate: (1) When such performance or offer is prevented or delayed … by the operation
of law, even though there may have been a stipulation that this shall not be an
excuse; … (2) When it is prevented or delayed by an irresistible, superhuman
cause, … unless the parties have expressly agreed to the contrary.” (Civ. Code
§ 1151.)
Pursuant to the above analyses
regarding force majeure, frustration of purpose, and impossibility, the Court
finds that the government restrictions did not impact Plaintiff’s ability to
perform its obligation under the lease agreement, which was to pay rent in
exchange for its possession and use of the property. The orders and pandemic
may have made Plaintiff’s business less profitable and made it more difficult
for Plaintiff to afford rent. However, “laws or other governmental acts that
make performance unprofitable or more difficult or expensive do not excuse the
duty to perform a contractual obligation.” (Aristocrat Highway Displays,
Inc. v. Stricklen (1945) 68 Cal.App.2d 788, 790.)
Accordingly, the Court finds that
Defendant has met its initial burden to negate the applicability of Civil Code
section 1511, and Plaintiff has failed to meet its responsive burden to produce
evidence showing a triable issue of material fact thereto.
B.
Defendant’s Breach
Defendant further argues that
Plaintiff is unable to establish that Defendant breached its obligations to
Plaintiff under the lease agreement. As discussed above, Plaintiff ceased its
business operations due to the government orders, not any action by Defendant,
nor does Plaintiff allege that Defendant is in any way responsible for the government
acts. (Def.’s MSJ, 16:16–20.)
To the extent that Plaintiff
alleges that Defendant breached the force majeure provisions in Section 22.3 of
the lease agreement, its argument lacks merit as the Court has found the
section inapplicable to the instant facts. To the extent that Plaintiff alleges
that Defendant breached the warranty of quiet enjoyment in Section 22.1 of the
lease agreement, its argument lacks merit as Plaintiff fails to attribute the
alleged breach to any conduct by Defendant. (Id., 17:14–19.)
Consideration
Plaintiff asserts “failure of
consideration” as a defense for its nonpayment of rent. “Failure of
consideration is the failure to execute a promise, the performance of which has
been exchanged for performance by the other party. The failure may arise from
the wilful breach of the promise.” (Taliaferro v. Davis (1963) 216
Cal.App.2d 398, 410–411.)
As set forth above, the lease
agreement requires Plaintiff to pay rent, and in exchange, Defendant is
required to deliver Plaintiff defined space free from latent or patent defects,
including local municipal fees, utility provisions, and other required
operational items. (Ex. A to AOE, § 2.2.) Contrary to Plaintiff’s arguments, “the
Lease does not create any ongoing obligation [on Defendant] to guarantee [Plaintiff’s]
ability to legally operate as a fitness center throughout its term.” (Def.’s
MSJ, 25:23–24.) Defendant essentially argues that because it provided Plaintiff
possession of the property throughout the relevant time period, “any argument
that it received no consideration in exchange for the payment of rent is
factually inaccurate.” (Def.’s Reply, 13:18–19.) The Court finds that Defendant
has met its initial burden of showing no triable issue of material fact with
respect to Plaintiff’s failure of consideration argument.
Plaintiff argues in opposition that
the government closure orders deprived Plaintiff of access to and occupancy of
the property, thereby constituting a “total failure of consideration.” (Pl.’s
Opp., 19:2–9.) The Court rejects Plaintiff’s argument, noting that notwithstanding
the government orders, Plaintiff nevertheless decided to remain in possession
of the property, and made no attempt to abandon it or return possession to
Defendant. Defendant performed its obligations under the lease, including the
provision of the premises for Plaintiff’s exclusive possession, maintenance of
the common areas, and payment of property taxes.
Accordingly, the Court finds that
Plaintiff has not made a sufficient responsive showing that a triable issue of
material fact exists regarding this issue.
As set forth above, Defendant has
met its initial burden of negating essential elements of (1) Plaintiff’s
excused nonperformance and (2) Defendant’s breach in Plaintiff’s Breach of
Contract causes of action. Plaintiff has not met its responsive burden to show
a triable issue of material fact, and the Court therefore grants Defendant’s
motion as to Plaintiff’s first and second causes of action.
II.
Common Count
Plaintiff’s third, fourth, and
fifth causes of action are for Common Count. The elements of a common count
claim are “(1) the statement of indebtedness in a certain sum, (2) the
consideration, i.e., goods sold, work done, etc., and (3) nonpayment. A cause
of action for money had and received is stated if it is alleged the defendant
is indebted to the plaintiff in a certain sum for money had and received by the
defendant for the use of the plaintiff.” (Farmers
Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.)
Plaintiff’s Common Count causes of
action seek the recovery of rent paid for the months during which the
government closure orders were in effect. Because the Court finds that there
exists no triable issue of material fact regarding Defendant’s alleged breach
the lease agreement, as set forth above, Defendant is not indebted to
Plaintiff. Accordingly, Defendant has met its initial burden of negating an
essential element of Plaintiff’s Common Count causes of action. Plaintiff has
made no responsive showing, and as such, the Court grants Defendant’s motion as
to Plaintiff’s third, fourth, and fifth causes of action.
III.
Declaratory Relief
Plaintiff’s sixth and seventh
causes of action are for Declaratory Relief pursuant to its arguments as
discussed above. Because the Court finds that there is no triable issue of
material fact as to any of the aforementioned causes of action, there is
similarly no triable issue as to Plaintiff’s entitlement to declaratory relief.
Defendant has met its initial burden of negating essential elements of
Plaintiff’s above causes of action. Plaintiff has made no responsive showing as
to the issue of declaratory relief, and as such, the Court grants Defendant’s
motion as to Plaintiff’s sixth and seventh causes of action.