12/28/2023: The escrow company provides Avsharian with a report of the lien  

search on the Restaurant, which was forwarded to the parties. (Id., ¶ 9, Exh 12, p. 97:6-12.) This report indicated that there were multiple liens and encumbrances on the Restaurant. (Corban Decl., Exh. 7.)  

1/8/2024: Corban sends an email to the escrow company stating that he  

wanted to cancel escrow. (Shatila Decl., ¶ 14, Exh. 5.) 

1/10/2024: Avsharian sends an email to the escrow company requesting a  

cancellation of escrow. (Corban Decl., ¶ 21, Exh. 8.) The parties jointly  

cancel escrow in a signed writing. (Galliver Decl., Exh. 9, at No. 50.) 

6/6/2024: Corban and Corban Group (collectively “Buyers”) file the Complaint. On 8/13/2024, the operative First Amended Complaint (“FAC”) is filed, alleging causes of action for:  

7/15/2024: Shatila and the Restaurant (collectively “Sellers”) file a Cross-Complaint (“XC”) against Buyers, alleging causes of action for: 

3/20/2025: Buyers file this Motion for Summary Judgment/Adjudication of the XC and two causes of action in the FAC, followed by the Opposition (4/29/2025) and Reply (5/8/2025). 

TENTATIVE RULING: MOTION FOR SUMMARY JUDGMENT OF THE CROSS-COMPLAINT OF PLAINTIFFS/CROSS-DEFENDANTS ZIAD CORBAN AND CORBAN GROUP, INC. is GRANTED. 

MOTION FOR SUMMARY ADJUDICATION OF THE FAC’s 5TH AND 6TH CAUSES OF ACTION OF PLAINTIFFS/CROSS-DEFENDANTS ZIAD CORBAN AND CORBAN GROUP, INC. is GRANTED. 

No triable issues of material fact exist as to Sellers’ first breach of contract2 claim. Sellers’ 1st cause of action alleges Buyers breached the Purchase Agreement by cancelling escrow on January 8, 2024. (XC, ¶ 29.) It is undisputed that the parties executed a valid Purchase Agreement on November 28, 2023. (Corban Decl., ¶¶ 9-10, Exh. 1; Shatila Decl., ¶ 8, Exh. 1.) However, in this Motion, Buyers argue Sellers cannot establish the 2nd and 3rd elements of their breach of contract claim and that Sellers anticipatorily breached the contract. 

Buyers argue Sellers cannot establish that they performed their own obligations under the Purchase Agreement. “Before any party to an obligation can require another party to perform any act under it, he must fulfill all conditions precedent thereto imposed upon himself; and must be able and offer to fulfill all conditions concurrent so imposed upon him on the like fulfillment by the other party, except as provided by the next section.” (Civ. Code, § 1439.) Here, Buyers contend that Sellers failed to disclose to Buyers the outstanding liens on the Restaurant and to promptly discharge said liens. (Corban Decl., ¶¶ 18-19.)   

Buyers submit a copy of the Purchase Agreement, which provides the following relevant provisions. First, Article 5 states, in relevant part: “It is understood between the Parties that, except as otherwise expressly provided in this Agreement, Buyer is not assuming any of Seller’s liabilities or obligations, and Seller agrees to pay and discharge all of its liabilities and obligations promptly as due and in due course.” (Corban Decl., Exh. 1, p. 2, emphasis added.) Second, Article 6 states, in relevant part: “It is further understood between Buyer and Seller escrow holder shall conduct searches on the State and County level for financing statements and liens and/or judgments and that Buyer shall not assume any of such liabilities, if any.” (Id., p. 2, emphasis added.) Third, Article 9 (“Seller’s Representations, Warranties, and Covenants”), Section 9.5 states: “Seller represents, warrants, and covenants to Buyer as follows: […] Seller does not know, or have reason to know, of any matters, occurrences, or other information that has not been disclosed to Buyer and that would materially and adversely affect the assets purchased by Buyer or their value or its conduct of the business involving such assets.” (Id., p. 4, emphasis added.)3 Notably, Avsharian (the attorney who drafted the Agreements) testified that the purpose of this section was “for the buyer’s protection” and “in case there was some liens or obligations or encumbrances on the Restaurant.” (Galliver Decl., Exh. 12, p. 68:1-69:2, 69:15-70:6.)  

Collectively, the plain language of the Purchase Agreement supports a reasonable inference that the parties intended that Sellers would disclose and discharge any outstanding liens on the Restaurant prior to the completion of Buyers’ performance. (Colaco v. Cavotec SA (2018) 25 Cal.App.5th 1172, 1183 (in determining whether one parties’ obligation is a condition precedent to the other parties’ performance, “the contract's plain language and the parties’ intent” governs.)) Both legally and logically, if Sellers failed to discharge the Restaurant’s debts before the closing date, Buyers would necessarily be operating a business bound by Seller’s liabilities in contravention to the express provisions of the Purchase Agreement. (Corban Decl., Exh. 1, p. 1, 3-4.) 

Despite Sellers’ representations and warranties, Buyers contend there were multiple undisclosed liens on the Restaurant at the time the Purchase Agreement was executed. On December 28, 2023 (two weeks before the closing date) the escrow company provided Avsharian with a copy of a lien report on the Restaurant, which was forwarded to the parties. (Galliver Decl., ¶ 9, Exh 12, p. 97:6-12; Corban Decl., ¶ 17.) Buyers submit a copy of this report, which reflects various liens on the Restaurant. (Id., Exh., 7.) For example, the Lien Search Certificate for the Restaurant indicates both a “Financing Statement” secured by the SBA and a “Judgment Lien” secured by Norgard Insurance Co., c/o Gaba Guerrini Law. (Id., p. 4.) Additionally, the Certificate of Tax Liens reflect multiple tax liens on the Restaurant. (Id., p. 14-15.) Kassabian (the parties’ accountant) also confirmed under oath that the Restaurant had an outstanding SBA loan. (Galliver Decl., Exh. 11, p. 55:14-52:8.) 

Buyers also set forth evidence that Sellers knew of these liens on or before the execution of the Purchase Agreement, but failed to ensure they were disclosed to Buyers, in contravention of Sellers’ representations and warranties. For example, Shatila admits in his discovery responses that he knew about a California Board of Equalization lien against Sellers as of November 28, 2023. (Id., Exh. 9, at No. 29.) Shatila also admits that he was making payments on the Norguard judgment and the SBA loan, demonstrating his knowledge of such liens. (Id., at No. 23-28, Exh. 10, at No. 17.1.) Kassabian also testified that Shatila had asked him to assist with the Board of Equalization liens “many years” prior to the attempted Restaurant sale, and that Kassabian had been working with Shatila to “deal with” the liens, which date back to the 1990s. (Id., Exh. 11, p. 39:25-40:14, 43:21-44:8, 46:14-18.) Meanwhile, Corban declares that prior to receiving the escrow report, he did not know about any liens or encumbrances on the Restaurant, and denies that Shatila disclosed to him any of those liens or judgments. (Corban Decl., ¶ 18.) Kassabian also testified that Corban “wasn’t aware” of the Franchise Tax Board lien or the CDTFA liens, and admitted he “did not get involved in the details of the transaction” when asked if he had ever informed Corban of the liens. (Galliver Decl., Exh. 11, p. 68:2-12, 69:13-16, 70:12-16, 73:24-75:1.) 

Finally, Buyers contend Sellers failed to comply with their duty “to pay and discharge all of its liabilities and obligations promptly as due and in due course.” (Corban Decl., Exh. 1, p. 2, emphasis added.) Corban declares that when he discovered the outstanding liens, he confronted Shatila, who informed him that Buyers “would have to pay” the liens “because [Shatila] would not.” (Id., ¶ 19.) Corban further declares that Shatila agreed to cancel escrow because “he would not pay the liens.” (Id., ¶ 20.) Not only does this evidence suggest Sellers had still not discharged the outstanding liens on the Restaurant with only two weeks left until the closing date, but also that Shatila was unwilling to promptly do so, despite Sellers’ contractual obligations. Taken together, this evidence is sufficient to overcome Buyers’ initial evidentiary burden of showing that Sellers failed to perform their obligations under the Purchase Agreement. Thus, the burden shifts to Sellers to raise a triable issue of material fact as to this issue. 

In their Opposition, Sellers generally contend that the outstanding liens did not impact the Purchase Agreement. (Opp., at 7.) First, Sellers assert that Buyers were aware of the Board of Equalization lien. Sellers mischaracterize Kassabian’s testimony as stating that he had repeated discussions with Corban about this lien before the execution of the Purchase Agreement. (Chelico Decl., Exh. 1, p. 43:2-4, 48:12-49:1.) In fact, when Kassabian was asked if he had any discussions with the parties from “October 2023 until January, February 2024,” Kassabian merely responded: “multiple conversations, yes.” (Id., 48:12-49:1.) However, Kassabian suggested that he could not recall any specific conversations or provide any specific dates. (Id., p. 43:2-4, 48:12-49:1.) Thus, Kassabian’s testimony merely suggests that he may have told Corban about the Board of Equalization lien before November 28, 2023, but he could not definitively confirm whether this occurred before or after the Purchase Agreement was executed. Even if such conversations occurred in October and early November 2023, this evidence only pertains to one lien. Kassabian’s limited testimony makes no indication that Corban had knowledge of the Restaurant’s other liens. Most critically, Sellers ignore Kassabian’s broader testimony clarifying that he had only discussed the liens with Corban after the Purchase Agreement was signed. Specifically, Kassabian testified that Corban did not know about the CDTFA liens before January 2024. (Galliver Decl., Exh. 11, p. 73:24-74:1, 74:21-24.) Likewise, Kassabian explicitly denied advising Corban as his CPA regarding the Restaurant purchase and denied disclosing the liens to Corban during the parties’ negotiations. (Id., p. 75:12-20.) 

In the Court’s view, this testimony undermines Shatila’s declaration that he “did not withhold information about liens from Corban,” as the declaration is based on an incorrect and speculative assumption that Kassabian had disclosed the Restaurant’s financial information to Corban. (Shatila Decl., ¶ 17.) While Shatila declares he “did not withhold” information about liens from Corban and did not instruct Kassabian not to disclose such information, Shatila does not declare that he made efforts to ensure all liens had been disclosed to Buyers. (Ibid.) Under Section 9.5 of the Purchase Agreement, Sellers warranted that “Seller does not know, or have reason to know, of any matters, occurrences, or other information that has not been disclosed to Buyer…” (Corban Decl., Exh. 1, p. 4.) In the Court’s view, this provision imposes not merely an obligation to “not withhold” information, but an affirmative duty to ascertain Buyers’ knowledge regarding matters “that would materially and adversely affect the assets purchased by Buyer or their value…,” which reasonably includes all outstanding liens. (Ibid.) Thus, even if Shatila did not “withhold information” from Buyers, Shatila’s declaration is insufficient to raise a triable dispute as to Buyers’ knowledge of the liens, and Sellers set forth no evidence of their efforts to discharge their duty to ascertain Buyers’ knowledge.4  

Next, while Sellers admit to making payments on at least two of the liens at the time the Purchase Agreement was executed, Sellers characterize these payments as “essentially business operating expenses” which did not impact the sale. (Opp., at 7; Shatila Decl., ¶ 18.) The Court disagrees. Shatila submits a copy of the bank statements reflecting his payments on these liabilities both before November 28, 2023 and throughout 2024 (i.e. after the closing date). (Id., Exh. 6.) Not only does Shatila’s declaration confirm that he knew about these liens as of November 28, 2023, but the payments throughout 2024 also suggest that Sellers failed to discharge these liabilities by the date of closing (January 15, 2024). These payment records are insufficient to raise a triable factual dispute, as they merely reconfirm Buyers’ evidence that Sellers knew of information that materially and adversely affected the Restaurant’s value, yet failed to promptly discharge the liabilities. (Corban Decl., Exh. 1, p. 1, 4.)5  

In sum, Sellers fail to raise a material factual dispute as to whether they performed or were excused from performing their lien-related obligations under the Purchase Agreement. Accordingly, Sellers cannot establish the second element of their breach of contract claim as a matter of law. 

Buyers next argue that Sellers cannot establish that Buyers breached the Purchase Agreement. Specifically, Buyers contend that the cancellation of escrow did not constitute a breach because both parties consented. (Id., ¶¶ 20-21, Ex. 8; Galliver Ex. 9, No. 50.) Indeed, where one party attempts to cancel escrow, the other party has the option to treat this as an offer to rescind the contract, which can be accepted, resulting in mutual rescission¿(rather than a breach). (Gelber v. Cappeller (1958) 161 Cal.App.2d 113, 120.) 

Here, Corban declares that at some point before the escrow closing date, the parties discussed cancelling escrow because Shatila would not pay the Restaurant’s outstanding liens. (Corban Decl., ¶ 20.) Avsharian testified that on January 8, 2024, he was cc’d on an email from Corban to the escrow company requesting to cancel escrow. (Galliver Decl., Exh. 12, p. 76:17-77:4, 78:8-11.) Avsharian confirmed that he spoke with Corban on the telephone after receiving this email. (Id., p. 78:11-15.) Avsharian explained that he got the impression that Corban had asked Shatila about cancelling escrow, and that Shatila agreed, although Avsharian subsequently called Shatila to confirm this directly. (Id., p. 80:24-81:3.) When Avsharian “inquired with Shatila”, Shatila confirmed “in the affirmative” that he also wanted to cancel escrow. (Id., p. 78:11-15, 85:17-86:4.) Avsharian denies that Shatila ever communicated to him anything to the effect that he was being “coerced” into cancelling escrow. (Id., p.  86:5:9.) Thereafter, Avsharian emailed the escrow company requesting to cancel escrow. (Id., p. 78:16-18, 80:1-5.) Buyers submit a copy of this email, sent on January 10, 2024. (Corban Decl., Exh. 8.) The same day, the parties jointly cancelled escrow by signing the escrow Cancellation Instructions. (Id., ¶ 21, Exh. 8; Galliver Decl., ¶¶ 3, 10, Exh. 9, at No. 50.) Taken together, this affirmative evidence is sufficient to overcome Buyers’ initial evidentiary burden of showing that Buyers did not unilaterally cancel escrow. Thus, the burden shifts to Sellers to raise a triable issue of material fact. 

In their Opposition, Sellers do not submit admissible evidence to dispute that Shatila agreed to cancel escrow. Rather, Sellers argue Buyers cancelled escrow for an ulterior motive, namely that Corban was unable to obtain a beer and wine license (an “ABC license”) for the Restaurant. Shatila declares that during escrow, Corban “started to express doubts” to Shatila about Corban’s ability to continue with the purchase of the Restaurant because “he was not able to get the beer and wine license.” (Shatila Decl., ¶ 12.) Sellers also submit a copy of an email in which Corban inquired with a licensing consultant regarding the steps necessary to obtain an ABC license. (Chelico Decl., Exh. 4.) In addition, Sellers incorrectly assert that Avsharian testified that the ABC license was the “main reason” that Corban wanted to cancel escrow. (Opp., at 8.) In fact, Avsharian merely testified that Buyers’ inability to get an ABC license was one of multiple reasons that Corban wanted to cancel escrow, along with the Restaurant’s outstanding liens. (Galliver Decl., Exh. 12, p. 76:17-25, 116:2-6.) Nevertheless, none of the admissible evidence set forth by Sellers demonstrates that Corban actually applied for and was denied an ABC license. Even if true, Corban’s inability to obtain an ABC license is irrelevant, as the parties jointly agreed to cancel escrow. Any dispute regarding the ABC license is immaterial to issue of whether the cancellation of escrow constituted a breach of the Agreement.  

At most, Sellers submit evidence suggesting that Corban initiated the first email request to cancel escrow on January 8, 2024 “on his own.” (Shatila Decl., ¶ 14, Exh. 5; Chelico Decl., Exh. 3, p. 111:5-17.) Even so, Corban’s initial email on does not negate the undisputed fact that both parties ultimately signed the written escrow cancellation instrument just two days later. Once again, where both parties agree to cancel escrow, there is no breach as a matter of law. (Gelber, supra, 161 Cal.App.2d at 120.) Accordingly, Sellers cannot demonstrate that Corban’s initiation of the escrow cancellation process constituted a breach of the Purchase Agreement as a matter of law. 

Third, Buyers contend that Sellers’ “refusal” to timely discharge the Restaurant’s liens constituted an “anticipatory breach” of the Purchase Agreement. “An anticipatory breach of contract occurs on the part of one of the parties to the instrument when he positively repudiates the contract by acts or statements indicating that he will not or cannot substantially perform essential terms thereof…” (Crane v. East Side Canal & Irr. Co. (1935) 6 Cal.App.2d 361, 367.) When this occurs, the non-repudiating party is excused from performance. (Civ. Code, § 1440.) Here, Corban declares that when he confronted Shatila regarding the Restaurant’s liens, Shatila communicated that he “would not” pay them off, and instead that Buyers would have to be responsible. (Corban Decl., ¶ 19.) By expressly indicating to Corban that Shatila would not perform his contractual obligation to promptly discharge the Restaurant’s liabilities, Buyers argue that Sellers repudiated the contract prior to closing.  

In response, while Shatila declares that he “had no intention to cancel” the sale transaction and was “ready and prepared to perform the agreements,” Sellers do not explicitly deny that Shatila told Buyers that he would not be paying the liens and do not set forth evidence refuting that such a conversation ever occurred with Corban. (Shatila Decl., ¶¶ 13, 19.) Sellers also fail to submit evidence suggesting that the outstanding liens were timely discharged, or that Shatila was planning to discharge the Restaurant’s liens by the escrow closing date. Even if Shatila’s subjective intent was to timely perform his obligations to pay off the liens, the undisputed evidence demonstrates that Shatila stated to Corban that he would not perform, thus repudiating his contractual obligations. This affirmative statement constitutes an anticipatory breach of contract, thus excusing Buyers’ performance under the Purchase Agreement even before escrow was cancelled. (Crane, supra, 6 Cal.App.2d at 367.) 

Based on the above analysis, Sellers’ failure to raise any triable issue of material fact as to their first breach of contract claim indicates that their 1st cause of action must fail. As discussed below, since the XC’s remaining causes of action rely on the validity of this claim, Sellers’ remaining claims so too must fail. 

No triable issues of material fact exist as to Sellers’ second breach of contract claim, which alleges Corban breached the Purchase Guaranty by cancelling escrow on January 8, 2024. (XC, ¶¶ 32-33.) It is undisputed that the parties executed a valid Purchase Guaranty on November 28, 2023. (Corban Decl., ¶¶ 9, 11, Exh. 2; Shatila Decl., ¶ 9, Exh. 2.) However, in this Motion, Buyers argue that Corban cannot be held liable under the Purchase Guaranty if Corban Group is not liable for breaching the underlying Purchase Agreement. Indeed, “[b]y statute the liability of a guarantor is commensurate with that of the principal. [Citation.] ‘Where the principal is not liable on the obligation, neither is the guarantor.’” (San Diego County v. Viloria (1969) 276 Cal.App.2d 350, 357.) 

Here, the plain language of the Purchase Guaranty indicates that Corban only guaranteed Corban Group’s duties under the Purchase Agreement. The first sentence of the Guaranty states that the Personal Guaranty is made by Corban in favor of Sellers for the purchase of the Restaurant by Corban Group. (Corban Decl., Exh. 2, p.1.) Additionally, Paragraph 1 indisputably provides, “Guarantor unconditionally and irrevocably guarantees, as a primary obligor and not as a surety, and promises to perform and be liable for any and all obligations and liabilities under the terms of the [Purchase Agreement].” (Ibid.) Avsharian’s testimony confirms that the under the Guaranty, Corban only agreed to guarantee what was stated in the Purchase Agreement. (Galliver Decl., Exh. 2, p. 54:16-21.) Further, Paragraph 2 states, “Guarantor guarantees and promises to perform all the obligations of Buyer under the Agreement as so amended, compromised, released, or altered.” (Corban Decl., Exh. 2, p.1, emphasis added.) In no uncertain terms, Corban personally guaranteed the purchase of the Restaurant by Corban Group. Accordingly, Sellers’ inference that Corban guaranteed Sellers’ obligations under the Purchase Agreement contravenes the plain language of the Guaranty. Thus, the burden shifts to Sellers to raise a triable dispute as to the source of Corban’s liability under the Guaranty. 

In their Opposition, while Sellers admit Corban agreed to personally guarantee the Purchase Agreement (See Shatila Decl., ¶ 9), Sellers continue to argue that Corban’s Guaranty constitutes an agreement to be liable for Sellers’ liabilities. Sellers contend that Paragraph 1 of the Guaranty “shows that Corban agreed to be personally liable for obligations and liabilities which would include any purported liens.” (Opp., at 10.) Not so. Contractual terms must be interpreted within the context of the contract as a whole. Sellers’ argument completely ignores the unambiguous language from the Guaranty, discussed above. By focusing solely on Paragraph 1 to conclude that Corban agreed to be liable for “all” obligations in the sale transaction, Sellers miss the mark.6 In fact, Sellers’ own evidence weighs against their incorrect conclusion. For example, Avsharian testified that under the Purchase Guaranty, Corban agreed to personally guarantee the purchase price in the Purchase Agreement. (Chelico Decl., Exh. 3, p. 63:6-15.) As Sellers fail to set forth admissible evidence reasonably disputing the plain language of the Purchase Guaranty, Sellers fail to overcome their evidentiary burden as to Corban’s liability under the Guaranty. Accordingly, Sellers’ 2nd cause of action for breach of the Purchase Guaranty must fail. 

No triable issues of material fact exist as to Sellers’ third breach of contract claim. Sellers allege Buyers breached the Employment Agreement by failing to employ Shatila. (XC, ¶ 38.) It is undisputed that the parties executed a valid Employment Agreement on November 28, 2023. (Corban Decl., ¶¶ 9, 12, Exh. 3; Shatila Decl., ¶ 10, Exh. 3.) However, in this Motion, Buyers argue that the occurrence of the sale transaction was a condition precedent to Corban Group’s performance under the Employment Agreement and it would be impossible to perform otherwise. Where a contractual condition is impossible to fulfill, the contract is void and the promisor is generally excused from performing. (Civ. Code § § 1441, 1511(2).) 
 

Here, Buyers set forth evidence demonstrating that the purpose of the Employment Agreement was for Corban Group to employ Shatila at the Restaurant premises after the sale occurred. The Employment Agreement states, “Employee [Shatila] desires to become employed by Employer [Corban Group]...” (Corban Decl., Exh. 3, p. 1.) Section 2 (“Place of Employment”) of the Employment Agreement states, in relevant part, “Employee [Shatila] shall perform the services he is required to perform under this [Employment] Agreement at Employer’s offices, located at 11009 Burbank Blvd., Unit 117, North Hollywood, CA, 91601…” (i.e. the Restaurant’s address). (Ibid.; Id., Exh. 1.) Even further, Avsharian testified that the Employment Agreement was ancillary to the Purchase Agreement and was intended to reflect that Corban Group would be employing Shatila at the Restaurant. (Galliver Decl., Exh. 12, p. 41:11-19, 89:23-90:1.) Avsharian further testified that it was presumed that Corban Group would be operating the Restaurant in order to employ Shatila, and thus, if the sale of the Restaurant never went through, Corban Group would not be obligated to employ Shatila. (Id., p. 90:2-10.) 

Next, Buyers set forth evidence demonstrating that the Restaurant sale never occurred and that Corban Group never operated a business at Restaurant premises. While the Restaurant’s address is described as Corban Group’s “office” in the Employment Agreement, Corban declares that Corban Group has never had an “office” at that address. (Corban Decl., ¶ 25.) Buyers also submit the Restaurant’s Statement of Information with the California Secretary of State (filed October 9, 2024), which confirms that 11009 Burbank Blvd., Unit 117 is the Restaurant’s address, and that the Restaurant is still operated by Shatila. (Galliver Decl., ¶ 11, Exh. 13.) Shatila admitted to the same in his discovery responses. (Id., Exh. 10, at No. 2.6.) Collectively, this evidence supports an inference that the Employment Agreement was premised on the assumption that the sale transaction in the underlying Purchase Agreement would occur and that Corban Group own and operate the Restaurant as of February 1, 2024 (Shatila’s intended start date). (Corban Decl., Exh. 3, p. 1.) 

Nevertheless, as the parties mutually consented to cancel the escrow, the sale transaction never occurred. Since the underlying transaction failed to occur, Corban Group never owned the Restaurant and never had possession or control over the premises. Corban also declares that Sellers have not transferred either the Restaurant or its assets to Buyers. (Id., ¶ 24.) Based on the above evidence, the Court is satisfied that Buyers have made a prima facie showing that it was impossible for Corban Group to perform under the Employment Agreement— or at minimum, that the Employment Agreement’s purpose had been frustrated. Thus, the burden shifts to Sellers to raise a triable issue of material fact as to whether Corban Group could have performed their contractual obligations. 

In their Opposition, Sellers suggest that Buyers have read a condition precedent to Buyers’ performance into the Employment Agreement where none exists. (Opp., at 12.) Sellers invoke the Employment Agreement’s Integration clause, arguing that Buyers cannot cite anything within the four corners of the Agreement to conclude that Shatila’s employment by Corban Group was conditional on the Purchase Agreement.7 This argument discounts the fact that Shatila’s “Place of Employment” is defined as the Restaurant’s address on the face of the Employment Agreement itself. That the Employment Agreement never expressly states that the close of escrow under the Purchase Agreement was a “condition precedent” to Corban Group’s performance under the Employment Agreement is thus irrelevant. 

Next, Sellers challenge the assumption that the Employment Agreement contemplated Shatila’s employment at the Restaurant only. Sellers highlight that Section 2, under which Corban Group agreed to employ Shatila at the Restaurant’s premises, also states: “provided, however, that Employer may from time to time require Employee to travel temporarily to other locations on Employer’s business.” (Shatila Decl., Exh. 3, p. 1.) Sellers contend that because Corban Group may ask Shatila to go to other locations for business purposes, Buyers cannot show that it was “impossible” to employ Shatila at another business location. (Opp., at 13.) However, once again, Sellers ignore the Employment Agreement’s language indicating that Shatila’s primary place of employment was to be the Restaurant’s premises. Any exceptions to this condition would only require Shatila to “temporarily” travel to other locations for purposes of Corban Group’s business. (Corban Decl., Exh. 3, p. 1.) That Shatila may have periodically been required to travel for business purposes does not support an inference that the parties intended that Shatila could perform his employment duties at another business premises.8 In sum, as the undisputed evidence demonstrates that Corban Group could not have employed Shatila at a business that Corban Group did not own and did not have the right to operate, Sellers cannot refute the impossibility of Buyers’ performance. Thus, Sellers’ 3rd cause of action for breach of the Employment Agreement must fail. 

No triable issues of material fact exist as to Sellers’ fourth breach of contract claim. Sellers allege Buyers breached the Employment Guaranty by failing to perform under the Employment Agreement. (XC, ¶ 43.) It is undisputed that the parties executed a valid Employment Guaranty on November 28, 2023. (Corban Decl., ¶¶ 9, 13, Exh. 4; Shatila Decl., ¶ 11, Exh. 4.) As explained above, a guarantor cannot be liable where the principal is not liable on the obligation. (Viloria, supra, 276 Cal.App.2d at 357.) Here, the Employment Guaranty contains identical provisions to the Purchase Guaranty, in which Corban personally guaranteed Corban Group’s contractual obligations under the Employment Agreement. (Corban Decl., Exh. 4, p. 1.) It is undisputed that Corban’s Guaranty applies only to the obligations under the Employment Agreement. (Ibid.) As established above, the Employment Agreement required Corban Group to employ Shatila at the Restaurant premises for a two-year duration. (Id., Exh. 3, p. 1.) As Sellers fail to establish Corban Group’s breach of the Employment Agreement, Corban cannot be found liable under the Guaranty. 

Thus, the 4th cause of action for breach of the Employment Guaranty must fail. 

As cause of action in the XC fails as a matter of law, Buyers argue they are entitled to an award of their attorneys’ fees in connection with their defense of the XC. “In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.” (Civ. Code, § 1717(a).) Here, the Employment Agreement and both Guaranty Agreements provide for an award of attorneys’ fees to the prevailing party.9 In their Opposition, Sellers admit that the prevailing party is entitled to recover reasonable attorneys’ fees pursuant to these Agreements. (Opp., at 16.) Given that Buyers are the prevailing parties as to each cause of action alleged in the XC, summary judgment of the entire XC in favor of Buyers is proper. Accordingly, the undisputed attorneys’ fees provisions in the Agreements entitle Buyers to reasonable attorneys’ fees and costs incurred in defending the XC. 

No triable issues of material fact exist as to Buyers’ unjust enrichment10 and money had and received11 claims. These causes of action are each based on Buyers’ allegations that Shatila was benefitted by Corban’s $100,000 payment toward the Restaurant’s purchase price, but has failed to return that payment despite the sale transaction being cancelled. (FAC, ¶ ¶ 92-94, 98-101.) A party moving for summary adjudication of their own claims may shift the burden of proof to the opposition by submitting evidence as to every element of the cause of action. (Code Civ. Proc., § 437c(p)(1); WRI Opportunity Loans II, LLC v. Cooper (2007) 154 Cal.App.4th 525, 532.) 

Here, Buyers submit evidence that Sellers received a benefit from Buyers in the amount of $100,000, paid in connection to the Purchase Agreement. Corban declares that prior to executing the Agreements, Shatila requested an additional $100,000 outside of escrow toward the purchase price of the Restaurant, to which Corban agreed. (Corban Decl., ¶ 7.) Indeed, Corban declares that he paid two $50,000 checks to Shatila to satisfy the additional payment request. (Id., ¶ 15, Exh. 5.) In his discovery responses, Shatila admits that these checks were tendered and were deposited into his bank account. (Galliver Decl., Exh. 9, at Nos. 42-45.) In addition, Avsharian also testified that he too understood Corban’s additional $100,000 payment to Shatila to be part of the purchase price. (Id., Exh. 12, p. 74:21-25.)  

Nevertheless, Buyers submit evidence that Sellers failed to return this payment, even though the parties mutually cancelled escrow. Corban declares that Shatila neither returned the $100,000, nor any other form of compensation, despite Corban’s requests. (Corban Decl., ¶¶ 15, 23.) Sellers have also not transferred the Restaurant or any of its assets to Buyers. (Id., ¶ 24.) Thus, Buyers have received nothing in exchange for the $100,000 payment. (Id., ¶¶ 23-24.) Further, Corban declares he did not consent to Sellers keeping the $100,000 paid if the sale of the Restaurant was not completed. (Id., ¶ 23.) As Buyers have demonstrated that Sellers received and unjustly retained a portion of the purchase price for a sale transaction that never occurred, Buyers’ evidence is sufficient to make a prima facie showing as to each element of their 5th and 6th causes of action. Thus, the burden shifts to Sellers to raise a triable dispute as to whether Sellers indeed failed to return Buyers’ money or whether Sellers have an excuse to retain the $100,000 payment. 

In their Opposition, while Sellers object (unsuccessfully) to the above evidence, Sellers fail to set forth any evidence to contradict the above facts. Sellers do, however, dispute Buyers’ contention that none of the Agreements authorized Sellers to retain Buyers’ payments if the sale was not completed. (Id., ¶¶ 9-13, Exhs. 1-4.) Specifically, Sellers invoke Paragraph 4 of the Purchase Guaranty, which limits Corban’s “right to subrogation against Seller by reason of any payments” until Buyers’ obligations under the Purchase Agreement are fully performed. (Shatila Decl., ¶ 9, Exh. 2, p. 2.) Even so, as the overwhelming evidence reflects Buyers were excused from performance, it is not clear how this Guaranty provision precludes Buyers’ right to recover payments for which they received no consideration. 

At most, Sellers argue that Buyers’ own evidence of the two checks paid to Shatila undermine Buyers’ assertion that the money was intended to be part of the Restaurant’s purchase price. Specifically, the checks themselves include a notation indicating that they were a “personal loan” to Shatila. (Corban Decl., Exh. 5.) Even so, when considered among the evidentiary record as a whole, the mere fact that Corban labeled the two checks as “personal loans” is insufficient to overcome the undisputed and uncontradicted evidence that the checks were intended to be payments toward the purchase price of the Restaurant. Once again, Shatila submits no affirmative evidence to raise a competing inference as to whether the checks were part of Buyers’ purchase price. For example, Shatila never states under oath that the checks he admittedly received and deposited were not intended as consideration for the Restaurant. Likewise, Shatila never disputes Corban’s declaration that submitted the checks when the parties executed their Agreements, suggesting that the payments were connected to the sale. (Corban Decl., ¶ 15.) Even if Corban’s checks were “personal loans,” Sellers still fail to set forth evidence demonstrating why Sellers are entitled to keep that money.12 In sum, as Sellers cannot refute that it would be patently unjust for Sellers to keep the $100,000 payment, which in equity should be returned to Buyers, summary adjudication of the 5th and 6th causes of action in the FAC is proper. 

Therefore, Buyers’ Motion for Summary Judgment and/or Adjudication is GRANTED. 

Sellers object to the Declarations of Ziad Corban (No. 1-7) and James R. Galliver (No. 8). The following evidentiary objections are OVERRULED: Nos. 1-8. 

Buyers object to the Declarations of Hassan Shatila (No. 1-4) and Nabil Chelico (No. 5-7). The following evidentiary objections are SUSTAINED: 1, in part (p. 3:4-5) (secondary evidence rule); 2 (speculation, legal conclusion); 3 (speculation); 4, in part (p. 4:1-2) (speculation); and 5 (lacks foundation, speculation). The following are OVERRULED: 1, in part (p. 3:5-6); 4, in part (p. 3:28-4:1); 6; and 7. 

Cross-Defendants Ziad Corban and Corban Group, Inc. to serve notice of ruling. This tentative ruling (“TR”) shall be the order of the Court unless changed at the hearing and shall by this reference be incorporated into the Minute Order.  

TR emailed to counsel on 5/19/25 at 8:30 a.m.