Judge Robert B. Broadbelt, Case 20STCV46465 2023-03-23 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 20STCV46465, Date: 2023-03-23 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 20STCV46465 Hearing Date: March 23, 2023 Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

fitness international, llc ; Plaintiff, vs. wedge office, llc , et al.; Defendants.	Case No.:	20STCV46465

	Hearing Date:	March 23, 2023

	Time:	10:00 a.m.

	[Tentative] Order RE: motion for summary judgment or, in the alternative, summary adjudication

MOVING PARTY: Defendant Wedge Office, LLC

RESPONDING PARTY: Plaintiff Fitness International, LLC

Motion for Summary Judgment or, in the Alternative, Summary Adjudication

The court considered the moving, opposition, and reply papers filed in connection with this motion.

EVIDENTIARY OBJECTIONS

The court notes that plaintiff Fitness International, LLC (“Plaintiff”) has filed various objections to the evidence filed by defendant Wedge Office, LLC (“Defendant”), and in some instances, has not numbered the objections as required by California Rules of Court, rule 3.13542, subdivision (b). The court exercises its discretion to rule on the objections notwithstanding this procedural defect. The court rules on the objections in numerical order.

The court rules on Plaintiff’s evidentiary objections to Defendant’s Request for Judicial Notice, filed on January 18, 2023, as follows:

The court overrules Objection No. 1.

The court sustains Objection Nos. 2-30.

The court rules on Plaintiff’s evidentiary objections to the declaration of Matthew A. Montgomery, filed on January 18, 2023, as follows:

The court sustains Objection No. 6.

The court overrules Objections Nos. 1-5 and 7-19.

The court rules on Plaintiff’s evidentiary objections to Defendant’s Compendium of Exhibits, filed on January 18, 2023, as follows:

The court sustains Objections Nos. 5-6.

The court overrules Objections Nos. 1-4

The court declines to rule on the remaining objections because they are directed to evidence that is not material to the court’s disposition of this motion. (Code Civ. Proc., § 437c, subd. (q).)

The court rules on Plaintiff’s evidentiary objections to the declaration of Fred L. Wilks, filed on January 18, 2023, as follows:

The court sustains Objections Nos. 4-5.

The court overrules Objections Nos. 1-3 and 6.

The court declines to rule on the remaining objections because they are directed to evidence that is not material to the court’s disposition of this motion. (Code Civ. Proc., § 437c, subd. (q).)

The court rules on Defendant’s evidentiary objections to the declaration of Diann D. Alexander, filed on January 27, 2023, as follows:

The court sustains Objections Nos. 2 and 3.

The court overrules Objections Nos. 1, 4, 9-10, and 17-18.

The court declines to rule on the remaining objections because they are directed to evidence that is not material to the court’s disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)

JUDICIAL NOTICE

The court grants Defendant’s request for judicial notice as to Exhibit 1. (Evid. Code, § 452, subd. (c).) The court denies Defendant’s request for judicial notice as to Exhibits 2 through 30 because they are not relevant to material issues presented by this motion. (Malek Media Group, LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 825 [“Any matter to be judicially noticed must be relevant to a material issue”].)

The court grants Plaintiff’s request for judicial notice, filed on January 18, 2023, as to Exhibits 20, 23-35, 39, 40, and 41. (Evid. Code, § 452, subd. (c).) The court denies Plaintiff’s request for judicial notice as to Exhibits 21-22 and 36-38. The court denies Plaintiff’s request for judicial notice as to Exhibits 42-48 because they are not relevant to material issues presented by this motion. (Malek Media Group, LLC, supra, 58 Cal.App.5th at p. 825.)

The court denies Defendant’s supplemental request for judicial notice, filed on January 27, 2023, because it is an improper attempt to submit new evidence in reply. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.)

The court notes that, even though the court has denied some of the parties’ requests for judicial notice as to the exhibits specified above, the court may still consider them as evidence in ruling on this motion, except as to the exhibits to which the court has sustained objections. (Code Civ. Proc., § 437c, subd. (c) [“the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court] [emphasis added].)

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant or cross-defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

Defendant moves for an order granting its motion for summary judgment, or, in the alternative, summary adjudication as to each cause of action alleged by Plaintiff in its Complaint. The parties have addressed the relief requested in Plaintiff’s sixth cause of action for declaratory judgment first. The court therefore rules on Defendant’s motion as to the sixth cause of action for declaratory judgment first, and addresses the remaining causes of action in numerical order.

1. Sixth Cause of Action for Declaratory Judgment

Any person interested under a written instrument or under a contract, or who desires a declaration of his rights or duties with respect to another, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action for a declaration of rights and duties, and the court may make a binding declaration of these rights or duties. (Code Civ. Proc., § 1060.) “‘The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject.’” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.)

Plaintiff requests the following judicial declarations: (1) Plaintiff has no obligation to pay rent to Defendant during the closure period; (2) Defendant is required to excuse Plaintiff’s performance under the parties’ lease during the closure period by operation of California law, including Civil Code section 1511; (3) Defendant is required to excuse Plaintiff’s performance under the lease because the parties’ intent in entering the lease is frustrated during the closure period; (4) Defendant is required to excuse Plaintiff’s performance under the lease because performance is temporarily impossible during the closure period; (5) Defendant is required to excuse Plaintiff’s performance under the lease because performance is impracticable during the closure period; (6) Defendant is required to return to Plaintiff all monies paid by Plaintiff to Defendant during the closure period; (7) rent during the period of the time Plaintiff is subject to the ongoing restrictions is proportionately abated; (8) Plaintiff may recover its reasonable costs and attorney’s fees; and (9) Plaintiff may recover any other such relief deemed just and reasonable. (Compl., ¶ 101.)

A. Excusal of Performance under Civil Code section 1511

Plaintiff seeks a judicial declaration that “Defendant is required to excuse Plaintiff’s performance under the Lease during the Closure Period by operation of California law, including, without limitation, California Civil Code [section] 1511 [subdivision] (1)[.]” (Compl., ¶ 101, subd. (b).)

Performance of an obligation is excused “[w]hen such performance or offer is prevented or delayed … by the operation of law….” (Civ. Code, § 1511, subd. (1); SVAP III Poway Crossings, LLC v. Fitness International, LLC (2023) 87 Cal.App.5th 882, 873 (“SVAP III”) [“Section 1511(1) provides that a party’s performance of its contractual obligation is excused where the operation of law prevents or delays the performance”].)

The court finds that Defendant has met its burden of showing that Plaintiff cannot establish that its performance under the parties’ lease was excused pursuant to Civil Code section 1511 since Defendant has shown that an element of the defense (the prevention or delay of performance by operation of law) cannot be established.

Defendant submits a copy of the parties’ “Water’s Edge Retail Lease” dated May 25, 2012 (the “Lease”). (Def. Compendium of Evidence (“Def. COE”) Ex. A, Lease; Undisputed Material Fact (“UMF”) No. 1 [undisputed as to fact that Plaintiff and Defendant are parties to the Lease for the subject premises].)

Pursuant to the Lease, Plaintiff is obligated to pay to Defendant the amount of rent specified in the agreement each month, “without any setoff or deduction whatsoever except as otherwise expressly provided” by the terms of the Lease. (Def. COE Ex. A, Lease, § 6.1.) Defendant contends that Plaintiff’s performance of this obligation was not prevented or delayed by operation of law, and specifically, was not prevented or delayed by the government orders enacted in response to COVID-19.

Defendant presents (1) Executive Order N-28-20, issued by Governor Newsom on March 16, 2020, which ordered that (i) any cause of action that could be used to evict a residential or commercial tenant is suspended as set forth in the order, but (ii) its terms did not “relieve a tenant of the obligation to pay rent[;]” (2) an ordinance adding Article 14.6 to the Los Angeles Municipal Code to temporarily prohibit residential and commercial evictions due to COVID-19, which states that its terms do not eliminate any obligation to pay lawfully charged rent; (3) Plaintiff’s further supplemental responses to Defendant’s requests for admission, in which Plaintiff admitted that no government body prohibited Plaintiff from paying rent due under the lease from January 1, 2020, through the present; and (4) the deposition testimony of Diann Alexander, Plaintiff’s person most qualified, who stated that she was unaware of any law that made it illegal to pay rent and confirmed that Plaintiff paid all rent owed to Defendant. (RJN Ex. 1, ¶ 2; Def. COE Ex. G, § 49.99.3; Def. COE Ex. X, Response to Requests for Admission, pp. 2:9-10, 3:1-7; Def. COE Ex. R, Alexander Dep., pp. 67:24-68:17.) The parties do not dispute that Plaintiff has paid all rent and other charges due and owing under the Lease. (UMF No. 49.)

The court finds that Defendant has met its burden of producing evidence showing that (1) Plaintiff’s obligation under the Lease is to pay rent to Defendant, and (2) Plaintiff was not prevented or delayed from the performance of this obligation by the operation of law, because (i) the executive order and ordinances did not discharge the obligation to pay rent, (ii) Plaintiff has admitted that there was no law that made performance of this obligation illegal, and (iii) Plaintiff actually performed this obligation by paying all rent specified in the lease. (Def. COE Ex. A, Lease, § 6.1; RJN Ex. 1; Def. COE Ex. R, Alexander Dep., pp. 67:24-68:9; UMF No. 49.)

The court finds that Plaintiff has not met its burden to show that a triable issue of material fact exists as to the element of the prevention or delay of Plaintiff’s performance by operation of law.

In opposition and in its Complaint, Plaintiff contends that the closure orders prevented Plaintiff from using the premises during the closure periods and therefore excused Plaintiff’s obligation to pay rent. Plaintiff appears to base this argument on the contention that the purpose of the Lease was for Plaintiff to operate a health club and fitness facility; therefore, Plaintiff argues, because Plaintiff was prevented from operating its health club and fitness facility, it was excused from its obligation to pay rent.

Plaintiff relies on two provisions in the Lease in support of this argument. First, section 1.11 of the Lease, entitled “Permitted Use,” provides as follows: “Operation of a health club and fitness facility initially under the Trade Name reference in Section 1.4 above and in accordance with this Lease . . ., which shall include [various equipment and lessons] (collectively, the ‘Primary Permitted Use(s)’). The Premises shall be used principally for the Primary Permitted Use.” (Def. COE Ex. A, Lease, § 1.11.) Certain other uses, to the extent ancillary to the Primary Permitted Use, are permitted (defined as the “Ancillary Permitted Use(s)” in the Lease). (Ibid.) Second, section 4.1, subdivision (a) of the Lease states the following: “Tenant shall use the Premises solely for the Permitted Use (as defined in Section 1.11) and Tenant shall not use or permit the Premises to be used for any other purpose or purposes whatsoever without the prior written consent of Landlord, which consent Landlord shall not unreasonably withhold provided Tenant continues to operate for Tenant’s Primary Permitted Use.” (Def. COE Ex. A, Lease, § 4.1, subd. (a).)

The court acknowledges that sections 1.11 and 4.1 restrict Plaintiff’s use of the premises to a particular use (i.e., the operation of a health club and fitness facility with certain designated ancillary uses). However, Plaintiff has not pointed to any language in the Lease which requires Plaintiff to perform by using the premises in the specified manner. Although the Lease limits Plaintiff’s use of the premises for a particular purpose, the Lease does not impose an affirmative obligation on Plaintiff to use the premises in that manner no matter the circumstance. For example, it appears that there would be no breach of the Lease if Plaintiff had chosen to continue paying rent while opting to leave the premises vacant and declining to operate a health club and fitness facility on the premises. Thus, the language of the Lease does not affirmatively obligate Plaintiff to perform by operating a health club and fitness facility.

Even if the court were to find that the Lease required Plaintiff to perform by operating a health club and fitness facility, Plaintiff does not request a declaration that it was excused from performance of that obligation.

Plaintiff does not appear to dispute that it was required to pay rent pursuant to the terms of the Lease, and the court has found that Plaintiff was so obligated. (Def. COE Ex. A, Lease, § 6.1 [“Tenant shall pay, without notice or demand except as otherwise expressly provided herein . . . base rent”].) It is performance of this obligation from which Plaintiff seeks to be excused. Specifically, Plaintiff has alleged the following: Plaintiff’s obligations under the Lease, including the payment of rent, were legally excused; the purpose of the Lease was frustrated since Plaintiff was prohibited from using the premises; performance was impossible because Plaintiff was prohibited from using the premises; and performance was impracticable because Plaintiff was prohibited from using the premises and was not generating revenue from membership fees and dues. (Compl., ¶¶ 34-38.) In its Complaint, Plaintiff has generally asserted that Defendant’s demand that Plaintiff pay rent in full was improper and seeks reimbursement of rent paid during the relevant time periods. (Compl., ¶¶ 5, 46-52.)

The court finds that, because Plaintiff seeks to be excused from performing its obligation to pay rent, that is the obligation to be evaluated. Thus, the determinative issue is whether Plaintiff has submitted evidence sufficient to show that a triable issue of material fact exists as to whether its performance of this obligation was “prevented or delayed . . . by the operation of law . . . .” (Civ. Code, § 1511, subd. (1).)

The court finds that Plaintiff has not met that burden. Plaintiff has not submitted any evidence showing that the subject government orders prevented Plaintiff from paying rent to Defendant. Instead, Plaintiff has generally presented evidence showing that it was unable to operate its fitness facility (1) from March 16, 2020 to June 11, 2020, and (2) from July 13, 2020 through March 14, 2021. (Pl. Compendium of Evidence (“Pl. COE”) Ex. 24, ¶ 7 [March 15, 2020 Public Order closing gyms and fitness centers to the public], Ex. 25, Ex. 26A, ¶ 3, subd. (h)(ii) [April 10, 2020 Stay at Home Order mandating the continued closure of gyms and fitness centers], Ex. 33, ¶ 3, subd. (a) [ordering certain counties to close all indoor operations of gyms and fitness centers]; Alexander Decl., ¶¶ 30, 33 [“Since March 15, 2021, [Plaintiff] has remained open in the Premises, operating its health club and fitness facility”].) The court finds that this evidence is insufficient to show a triable issue of material fact exists as to whether the government orders prevented or delayed Plaintiff from fulfilling its obligations under the Lease to pay rent to Defendant.

B. Excusal of Performance under Doctrine of Frustration of Purpose

Plaintiff seeks a judicial declaration that “Defendant is required to excuse Plaintiff’s performance under the Lease because the parties’ intent and purpose in entering the Lease is frustrated during the Closure Period[.]” (Compl., ¶ 101, subd. (c).)

Application of the doctrine of frustration of purpose discharges the promisor from the duty of performing their promise. (20th Century Lites, Inc. v. Goodman (1944) 64 Cal.App.2d Supp. 938, 945.) “[A] promisor seeking to excuse himself from performance of his obligations [is required] to prove that the risk of the frustrating event was not reasonably foreseeable and that the value of counterperformance is totally or nearly totally destroyed, for frustration is no defense if it was foreseeable or controllable by the promisor, or if counterperformance remains valuable.” (Lloyd v. Murphy (1944) 25 Cal.2d 48, 54.) “[L]aws or other governmental acts that make performance unprofitable or more difficult or expensive do not excuse the duty to perform a contractual obligation [citations].” (Id. at p. 55.)

The court finds that Defendant has met its burden to show that Plaintiff cannot establish its entitlement to a declaratory judgment that its performance under the lease is excused under the doctrine of frustration of purpose because Defendant has shown that an element of the doctrine (the value of the counter performance is totally or nearly totally destroyed) cannot be established.

As to the remaining tenancy under the Lease, Defendant presents evidence showing that (1) the Lease includes an initial term of 15 years, with two options to extend for five years each; (2) the term of the Lease commenced on September 4, 2013; and (3) therefore the initial term of the Lease expires on September 3, 2028, with the option to renew the lease for another 10 years, or until September 3, 2038. (Def. COE Ex. A, Lease, §§ 1.7, 5.4, subd. (a); Def. COE Ex. B, Memorandum of Lease Commencement, §§ 2-3.) Defendant also submits evidence showing that (1) Plaintiff did not terminate the Lease, and instead continued to store equipment, furniture, and other infrastructure on the property; (2) Plaintiff did not surrender possession of the premises to Defendant; and (3) Plaintiff had access to the premises. (UMF Nos. 41-42 [Plaintiff has not terminated the Lease or surrendered the premises]; Def. COE Ex. R, Alexander Dep., pp. 101:10-13 [Defendant did not remove Plaintiff’s equipment from premises], 60:6-19 [Plaintiff’s employee checked on the premises during the closure orders], 61:3-10 [employees checked on premises, on average, once a week or once every other week], 61:19-24 [Defendant did not restrict Plaintiff’s access to premises].) Finally, Defendant asserts that the Lease provides Plaintiff with the ability to change the use of the premises with Defendant’s consent but did not do so. (Def. COE Ex. A, Lease, § 4.1, subd. (a) [providing that Plaintiff shall use the premises solely for the permitted use and shall not use the premises for any other purpose “without the prior written consent of [Defendant], which consent [Defendant] shall not unreasonably withhold” provided that Plaintiff continue to operate for its permitted use].)

The court finds that this evidence is sufficient to show that any interference with Plaintiff’s ability to operate its business under the subject governmental orders did not totally destroy the value of the Lease, therefore precluding application of the doctrine of frustration of purpose. “‘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 purpose for which, in the contemplation of both parties, the transaction was entered into.’” (Lloyd, supra, 25 Cal.2d at p. 53.) Defendant has presented evidence showing that any temporary interruption caused by the government closure orders did not result in “the total or nearly total destruction of purpose” of the parties’ lease, which provides for up to an initial tenancy of 15 years, and the possibility of a 25-year tenancy. (Ibid; SVAP III, supra, 87 Cal.App.5th at p. 895.)

The court finds that Plaintiff has not met its burden to show that a triable issue of material fact exists as to the element of the total or near total destruction of the value of counter performance. In its opposition, Plaintiff contends that the doctrine of frustration applies and excuses its performance under the Lease because (1) the parties’ purpose in entering into the Lease was for Plaintiff to operate a health club and fitness facility on the Lease, which was frustrated during the closure periods, and (2) the concept of temporary frustration is recognized in California and applies to the circumstances presented here.

First, Plaintiff has not submitted evidence showing that the total value of the Lease was destroyed. As set forth above, Plaintiff has submitted evidence showing that (1) it was unable to operate its business pursuant to government orders (i) from March 16, 2020 to June 11, 2020, and (ii) from July 13, 2020 to March 14, 2021, and (2) Plaintiff reopened on March 15, 2021 and has remained open since that date. (Alexander Decl., ¶¶ 30, 32-33.) Thus, at best, Plaintiff has shown that it was unable to operate its fitness facility for approximately 11 months.

Even if the court concluded—as Plaintiff argues—that the purpose of the Lease was for Plaintiff to operate a health club and fitness facility, “[t]he temporary government closure of a fitness facility for a period of months when the premises have been leased for more than [six years]—and the lease term spans more than [15 years for the initial term, with two options to extend the term for five years each]—does not amount to the kind of complete frustration required for the doctrine to apply.” (SVAP III, supra, 87 Cal.App.5th at p. 895; Def. COE Ex. B, Memorandum of Lease Commencement [term of Lease commenced on September 4, 2013]; Def. COE Ex. A, Lease, § 1.7 [defining term].)

Second, although Plaintiff argues that temporary frustration excused its performance under Maudlin v. Pac. Decision Sciences (2006) 137 Cal.App.4th 1001, the court disagrees. As noted by the Court of Appeal in the recent SVAP III decision, “that case involved temporary impossibility.” (SVAP, III, supra, 87 Cal.App.5th at p. 896; Maudlin, supra, 137 Cal.App.4th at p. 1017 [“California law on temporary impossibility mirrors the Restatement Second of Contracts, section 269”].)

The court therefore finds that Plaintiff has failed to meet its burden of producing evidence sufficient to show that a triable issue of material fact exists as to the total or near total destruction of the Lease and therefore has not shown that a triable issue of material fact exists as to the application of the doctrine of frustration of purpose to excuse Plaintiff’s performance under the Lease.

C. Excusal of Performance under Doctrine of Impossibility

Plaintiff seeks a judicial declaration that “Defendant is required to excuse Plaintiff’s performance under the Lease because performance is temporarily impossible during the Closure Period[.]” (Compl., ¶ 101, subd. (d).)

Impossibility is defined “as not only strict impossibility but as impracticability because of extreme and unreasonable difficulty, expense, injury or loss involved.” (Oosten v. Hay Haulers Dairy Emp. & Helpers Union (1955) 45 Cal.2d 784, 788.) “The defense of impossibility may apply where . . . a government order makes it unlawful for a party to perform its contractual obligations.” (SVAP III, supra, 87 Cal.App.5th at p. 893.) In assessing the application of the defense of impossibility, “the question to be decided is whether the party asserting the defense has demonstrated that it was impossible to perform its own contractual obligations to the other contracting party such that it may avoid liability for its non-performance.” (Ibid.)

The court finds that Defendant has met its burden to show that Plaintiff cannot establish its entitlement to a declaratory judgment that its performance under the lease is excused under the doctrine of impossibility because Defendant has shown that it was not impossible for Plaintiff to perform its contractual obligations to pay rent.

As set forth above, the court has concluded that, because Plaintiff seeks to be excused from performance of its obligation to pay rent, that is the contractual obligation that must be evaluated in the context of each of the doctrines under which Plaintiff alleges it is entitled to relief. The court finds that Defendant has met its burden of showing that the relevant contractual obligation to pay rent was not unlawful or impossible. First, Defendant presents Plaintiff’s discovery response in which it admitted that no government body prohibited Plaintiff “from paying rent due under the [Lease] at any time during the period from January 1, 2020 through the present.” (Def. COE Ex. X, pp. 2:8-10, 3:1-2.) Second, it is undisputed that Plaintiff has paid all rent and other charges under the Lease. (UMF No. 49.) Thus, the court finds that Defendant has produced evidence showing that the government orders did not prevent or make it impossible for Plaintiff to perform its own contractual obligations (i.e., to pay rent) to Defendant.

The court finds that Plaintiff has not met its burden to show that a triable issue of material fact exists as to the element of the impossibility to perform Plaintiff’s own contractual obligations to Defendant.

Plaintiff argues that the government orders “made performance of the object of the Lease impossible and impracticable—that is, [Plaintiff] could not operate a health club and fitness facility, as the Lease required it to do.” (Opp., p. 25:12-14.) As above, Plaintiff bases this contention on the ground that the purpose in entering the Lease was for Plaintiff to operate a health club and fitness facility on the premises. However, the court has found that (1) the Lease did not impose an affirmative obligation on Plaintiff to use the premises in this manner, and instead only limited the permitted use of the premises to the ones specified therein, and (2) even if Plaintiff had shown that it was obligated to perform under the Lease by, at all times and during the relevant closure periods, operating a health club and fitness facility, Plaintiff has not sought to be excused from performing that obligation.

Thus, the court finds that the relevant obligation to evaluate—and question to be decided—is whether Plaintiff “has demonstrated that it was impossible to perform its own contractual obligation” to pay rent to Defendant, “such that it may avoid liability for its non-performance.” (SVAP III, supra, 87 Cal.App.5th at p. 893.) Plaintiff has not presented any evidence or sufficient argument showing that payment of rent to Defendant was impossible or unlawful due to the government closure orders. The court therefore finds that Plaintiff has not met its burden to show that a triable issue of material fact exists as to whether performance of its obligation to pay rent under the Lease was rendered impossible due to the subject government mandates. (Ibid. [“Nothing about the pandemic or resulting closure orders has made Fitness’s performance of its obligation to SVAP—paying rent—impossible”].)

D. Excusal of Performance under Doctrine of Impracticability

Plaintiff seeks a judicial declaration that “Defendant is required to excuse Plaintiff’s performance under the Lease because performance is impracticable during the Closure Period[.]” (Compl., ¶ 101, subd. (e).)

“‘[A] thing is impracticable when it can only be done at an excessive and unreasonable cost.’” (Mineral Land Co. v. Howard (1916) 172 Cal.289, 293; SVAP III, supra, 87 Cal.App.5th at p. 893 [quoting Mineral Land Co., supra, 172 Cal. at p. 293].) “This does not mean that a party can avoid performance simply because it is more costly than anticipated or results in a loss. [Citation.] Impracticability does not require literal impossibility but applies when performance would require excessive and unreasonable expense.” (Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1336 [internal citation omitted].)

The court finds that Defendant has met its burden to show that Plaintiff cannot establish its entitlement to a declaratory judgment that its performance under the Lease is excused under the doctrine of impracticability because Defendant has shown that Plaintiff’s performance could have only been done “at an excessive and unreasonable cost.” (Mineral Land Co., supra, 172 Cal. at p. 293.)

Defendant submits evidence showing that the government restrictions put in place due to COVID-19 “did not increase the rental rate or the amount of rent [Defendant] claimed was due under the Lease.” (UMF No. 56 [undisputed in part on the ground that there is no claim that the rent was increased]; Montgomery Decl., ¶ 10.) Thus, the court finds that Defendant has submitted evidence sufficient to show that Plaintiff’s performance under the Lease could not have been done at an excessive or unreasonable cost.

The court finds that Plaintiff has not met its burden to show that a triable issue of material fact exists as to the element of an excessive and unreasonable cost of its performance.

As argued in connection with the doctrine of impossibility, Plaintiff contends that its performance under the Lease was impracticable because Plaintiff could not operate a health club and fitness facility. (Opp., p. 25:12-14.) However, as set forth above, Plaintiff seeks not to be excused from its performance of its operation of its fitness facility, but instead seeks to be relieved from its obligation to pay rent, thus requiring the court to evaluate the impracticability of the performance of that obligation.

Plaintiff has not presented any evidence showing that paying rent to Defendant pursuant to the terms of the Lease could have “only be done at an excessive and unreasonable cost.” (Mineral Land Co., supra, 172 Cal. at p. 293.) Although the court recognizes that Plaintiff argues that it was forced to bear the loss of nearly all revenue from its facility due to the government orders, Plaintiff has not presented evidence showing that performing its obligation to pay rent to Defendant, at the same rate as before the government closure orders, could only have been done at an excessive and unreasonable cost.

E. Obligation to Pay Rent

Plaintiff requests a judicial declaration that “Plaintiff has no obligation to pay Rent to Defendant during the Closure Period[.]” (Compl., ¶ 101, subd. (a).)

The court finds that Defendant has met its burden to show that Plaintiff cannot establish its entitlement to a declaratory judgment that Plaintiff has no obligation to pay rent to Defendant during the closure period because, as set forth above, Defendant has shown that Plaintiff’s performance under the Lease was not excused pursuant to the doctrines of frustration of purpose, impossibility, impracticability, or under Civil Code section 1511.

The court finds that Plaintiff has not met its burden to show that a triable issue of material fact exists as to whether Plaintiff had an obligation to pay rent to Defendant during the closure periods because, as set forth above, Plaintiff did not produce evidence showing that its obligation to pay rent was excused or otherwise not required during that time period.

F. Return of Monies Paid to Plaintiff

Plaintiff requests a judicial declaration that “Defendant is required to return to Plaintiff all monies paid by Plaintiff to Defendant during the Closure Period[.]” (Compl., ¶ 101, subd. (f).)

The court finds that Defendant has met its burden to show that Plaintiff cannot establish its entitlement to a declaratory judgment that Defendant is required to return to Plaintiff all money paid during the closure period because, as set forth above, Defendant has shown that Plaintiff’s performance was not excused and therefore has shown that Defendant is not “required to return to Plaintiff all monies paid” during the relevant time period.

The court finds that Plaintiff has not met its burden to show that a triable issue of material fact exists as to the element of the requirement to return to Plaintiff all money paid during the closure period because, as set forth above, Plaintiff has not met its burden of producing evidence to show that (1) Plaintiff was not required to pay rent to Defendant during the closure periods, and therefore (2) Defendant improperly collected money from Plaintiff that must be returned.

G. Abatement of Rent

Plaintiff requests a judicial declaration that “Rent during the period of time [Plaintiff] is subject to the On-Going Restrictions is proportionately abated (e.g., if 10% capacity, Rent is reduced to 10%)[.]” (Compl., ¶ 101, subd. (g).)

The court finds that Defendant has met its burden to show that Plaintiff cannot establish its entitlement to a declaratory judgment that rent during the relevant time period is proportionately abated because Defendant has shown that the provisions providing for abatement of rent do not apply to the circumstances presented by the government closure and restriction orders.

The Lease includes the following relevant provisions concerning the abatement of rent or offset of costs: (1) Plaintiff was not obligated to pay the base rent for the second through fifth months of the initial term, provided Plaintiff was not in default; (2) if Defendant fails to timely reimburse Plaintiff for self-help work costs, Plaintiff is entitled to offset all self-help work costs through rental offset, provided that amount is not more than 50 percent of the base rent, per month; (3) in the event that damage to or destruction of the premises is caused by fire or other casualty renders the premises untenable and prevents feasible operation of business from all or part of the premises, Plaintiff’s obligation to pay rent shall be abated proportionally; (4) in the event that the premises is taken by any lawful power or authority by exercise of the right of eminent domain, or sold to prevent that taking, rent shall be abated in proportion to the time during which, and to the part of the premise of which, Plaintiff is deprived of on account of the taking; and (5) except in the event of damage, if the premises is rendered untenable and is not used by Plaintiff for a period of at least five business days or 10 business days in any 12 month period as a result of (i) a failure of the building systems or lack of reasonable access to the premises, or (ii) interruption in utility services solely or primarily because of Defendant’s failure to supply utilities as required under the lease, rent shall be reduced and abated. (Def. COE Ex. A, Lease, §§ 6.2, 17.3, subd. (a)(4), 20.1, 21.1, 30.)

Defendant has presented evidence showing that the Lease does not require Defendant to abate rent based on the government closure orders. As noted by Defendant, Plaintiff’s Complaint does not allege that Defendant failed to abate rent under the Lease (1) for the second through fifth months of the initial term; (2) to reimburse Plaintiff for self-help work costs; (3) to compensate Plaintiff for untenable premises due to damage to or destruction of the premises by fire or other casualty; or (4) due to the exercise of eminent domain. (Compl., ¶¶ 65-71.)

In opposition, Plaintiff contends that Defendant was required to abate rent pursuant to section 30 of the Lease. Section 30 provides for the abatement of rent, as follows: “Except in the event of Damage (which is separately addressed in Article 20 above), if the Premises or any portion thereof is rendered untenantable and is not used by Tenant for a period of at least five (5) consecutive business days or ten (10) business days in any twelve (12) month period (each five (5) consecutive day or ten (10) day in twelve (12) months, as applicable, the ‘Eligibility Period’) as a result of (a) failure of the Building Systems, or lack of reasonable access to the Premises within the Project, or (b) interruption in utility services solely or primarily because of the failure by Landlord to supply utilities to the Premises to the extent, if any, that Landlord is specifically obligated under this Lease to supply the same, then Minimum Annual Rental and (subject to the balance of this Article 30) Additional Rent shall be reduced and abated after the expiration of the Eligibility Period for such time as the Premises or such portion thereof remain untenantable and are not used by Tenant, in the proportion that the rentable area of the portion of the Premises rendered untenantable and not used by Tenant bears to the total rentable area of the Premises.” (Def. COE Ex. A, Lease, § 30.)

Defendant has presented evidence showing that it did not prohibit Plaintiff’s access to the premises, which would otherwise constitute a circumstance for abatement under this section. (Def. COE Ex. A, Lease, § 30; Def. COE Ex. R, Alexander Dep., pp. 60:6-19 [during the closure orders, employees of Plaintiff checked on premises], 61:3-10 [employees conducted these checks once a week or every other week, on average], 61:19-24 [Defendant did not restrict Plaintiff’s access to the premises].)

Further, Defendant has presented evidence and argument to show that the force majeure clause does not require the abatement of rent. The force majeure clause states as follows: “Neither [Defendant] nor [Plaintiff] shall be liable for any failure to comply or delay in complying with its obligations hereunder if such failure or delay is due to acts of God, inability to obtain labor, strikes, lockouts, lack of materials, governmental restrictions, enemy actions, war, terrorism, bioterrorism, civil commotion, fire, earthquake, unavoidable casualty or other similar causes beyond the reasonable control of the party obligated for performance (all of which events are herein referred to as force majeure events). . . . . In no event shall failure to pay rent or other sums due hereunder from one party to the other be excused as a result of any force majeure event.” (Def. COE Ex. A, Lease, § 40.9 [emphasis added].) This clause expressly provides that, to the extent that the government closure orders constituted a force majeure event, Plaintiff’s obligation to pay rent shall not be excused. (Ibid.) Thus, even if the government orders issued in response to COVID-19 could be considered a force majeure event under the Lease, the language of the parties’ agreement (1) does not obligate Defendant to abate the rent in any amount, and (2) does not excuse Plaintiff from its obligations to pay rent.

The court finds that Plaintiff has not met its burden to show that a triable issue of material fact exists as to whether Defendant was required to abate rent under the Lease.

As set forth above, section 30 provides that rent shall be reduced and abated if the premises are rendered untenable and not used by Plaintiff for the period of five consecutive business days or 10 days in a 12-month period as a result of “lack of reasonable access to the Premises….” (Def. COE Ex. A, Lease, § 30.) Plaintiff contends that this section requires the abatement of rent because (1) Plaintiff was denied “reasonable access” to the Premises since its employees and customers could not access the property pursuant to the government orders; (2) Plaintiff had no access to the premises from at least March 16, 2020 through April 10, 2020; and (3) Defendant denied access to the premises on at least once occasion.

The court finds that this evidence is insufficient to show the existence of a triable issue of material fact as to whether Defendant was required to abate the rent due under the Lease based on lack of reasonable acess to the premises.

First, the court finds that Plaintiff has not met its burden to show that the government mandates that its employees and customers stay at home constituted a denial of reasonable access to the premises. In its moving and reply papers, Defendant cites to authority defining “access” to mean physical access to, or ingress and egress to, property. (Council of San Benito County Governments v. Hollister Inn, Inc. (2012) 209 Cal.App.4th 473, 489 [stating that, as to Code of Civil Procedure section 1240.350, “‘Access may refer to ‘a way by which a thing or place may be approached or reached’”]; Bacich v. Board of Control of California (1943) 23 Cal.2d 343, 349-350 [defining property right of access of an owner of property abutting upon a public street “as an easement of ingress and egress to and from his property”].) Plaintiff cites to various executive orders which mandated the closure of gyms and fitness centers to the public or requiring individuals to stay home except to access essential businesses. (Pl. COE, Ex. 24, ¶ 7 [ordering gyms and fitness centers to be closed to the public], Ex. 26A, ¶ 3, subd. (h)(ii) [ordering continued closure of gyms and fitness centers].) However, the evidence cited by Plaintiff did not prevent access to its premises, specifically, and instead only generally precluded the operation of gyms and fitness centers. Thus, Plaintiff has not shown that it was denied reasonable access to the premises based on these orders.

Second, the court finds that Plaintiff has not met its burden to show that its inability to operate its business under the government orders during the period of time between March 16, 2020 through April 10, 2020 constitutes a denial of access to the premises for the same reasons set forth above.

Third, the court finds that Plaintiff has not met its burden to show that Defendant denied Plaintiff reasonable access to the property. Plaintiff submits evidence establishing that on April 7, 2020, Defendant’s security personnel denied access to an employee who was attempting to check on the premises for Plaintiff. (Alexander Decl., ¶ 52; Pl. COE Ex. 15 [April 7, 2020 email from Alexander to Matt Montgomery advising that security would not let Plaintiff’s “VP” in].) However, section 30 provides for the abatement of rent if the premises were not used by Plaintiff “for a period of at least five (5) consecutive business days or ten (10) business days in any twelve (12) month period” as a result of the lack of reasonable access to the premises. (Def. COE Ex. A, Lease, § 30.) Plaintiff has provided evidence showing that Defendant denied access to the premises on only one occasion. However, pursuant to section 30, the denial of reasonable access to the premises on one day or for any period of time less than five consecutive business days or ten business days in a 12-month period does not require the proportional abatement of rent. Thus, this evidence is insufficient to show a triable issue of material fact exists as to whether Plaintiff was denied reasonable access to the premises such that Plaintiff would be entitled to abatement of rent under section 30 of the Lease.

H. Conclusion

Finally, Plaintiff requests judicial declarations that it may recover its reasonable attorney’s fees and costs and may recover other relief deemed just and reasonable. (Compl., ¶ 101, subds. (h), (i).) However, these requests do not concern proper subjects for declaratory relief.

The court has found, as set forth above, that Plaintiff has not met its burden of showing that there exists a triable issue of material fact as to the declarations requested in its sixth cause of action for declaratory judgment.

The court therefore grants Defendant’s motion for summary adjudication as to Plaintiff’s sixth cause of action for declaratory judgment.

2. First Cause of Action for Breach of Lease—Breach of Landlord’s Representations

“[T]he elements of a cause of action for breach of contract are (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.) Plaintiff alleges that Defendant “is in breach of the representations, warranties, and covenants” set forth in the Lease, and specifically, the provisions that provide that (1) Plaintiff shall have the right throughout the term of the Lease to use the premises, or any portion thereof, and operate its business from the premises; (2) Plaintiff shall quietly enjoy and possess the premises; and (3) Plaintiff’s use of the premises shall be free and clear of any conditions or restrictions which might prevent or adversely affect its use of the premises. (Compl., ¶ 60.)

The court finds that Defendant has met its burden of showing that the first cause of action for breach of lease—breach of landlord’s representations has no merit because Defendant has shown that an element of the cause of action (Defendant’s breach of the Lease) cannot be established.

First, Defendant has met its burden of showing that it did not breach the provisions of the Lease entitling Plaintiff (1) to use the premises and operate its business there, and (2) to quietly enjoy and possess the premises.

The Lease provides as follows: “[Defendant] agrees that [Plaintiff], upon paying the rent and performing each of the covenants, agreements and conditions of this Lease required to be performed by [Plaintiff], shall lawfully and quietly hold, occupy, and enjoy the Premises during the Term without hindrance or molestation of anyone lawfully claiming by, through or under [Defendant], subject, however, to the provisions set forth in this Lease.” (Def. COE Ex. A, Lease, § 15.) Defendant presents evidence showing that (1) Defendant did not, after the government authorities issued restrictions in response to COVID-19, take any action to restrict Plaintiff’s access to the premises, including by erecting barriers to entry, changing the locks, or restricting Plaintiff’s ability to enter the premises; (2) Defendant has not interfered with Plaintiff’s business operations, including by attempting to remove Plaintiff’s equipment, furniture, or other property located on the premises; and (3) Plaintiff’s employees have not stated that Defendant “had ever done anything to restrict [Plaintiff’s] access to the premises[.]” (Montgomery Decl., ¶¶ 17-18; Def. COE Ex. R, Alexander Dep., pp. 60:6-10, 61:19-24.) Moreover, Plaintiff has alleged that it ceased its operations in response to the closure orders issued by the government, and not Defendant. (Compl., ¶¶ 26, 29-32.)

Second, Defendant has met its burden of showing that it did not breach the provision of the Lease warranting that the premises are clear of all restrictions which may prevent or affect the use of the premises by Plaintiff.

The Lease provides that Defendant warrants to Plaintiff that it “has good and insurable title to the Project and Premises in fee simple, free and clear of all tenancies, covenants, conditions, restrictions, liens, encumbrances and easements which may prevent or materially adversely affect the improvement and use of the Premises…by [Plaintiff] for the Permitted Use….” (Def. COE Ex. A, § 36.1, subd. (b).) Defendant presents evidence establishing that no third party “has made any type of property right claim adverse to [Defendant’s] ownership of the Premises” and no documents have been recorded that would affect its title. (Montgomery Decl., ¶ 19.) Further, Plaintiff has not notified Defendant of any defect in Defendant’s title other than in relation to COVID-19. (Ibid.)

The court finds that Plaintiff has not met its burden to show that a triable issue of material fact exists as to the element of Defendant’s breach of the contract.

Plaintiff does not separately address this cause of action in its memorandum of points and authorities in opposition to Defendant’s motion. Instead, Plaintiff has generally set forth arguments regarding whether its performance under the Lease (i.e., the obligation to pay rent) was excused or requires the abatement of rent. In the separate statement, Plaintiff appears to argue that Defendant breached the provisions set forth above based on (1) Defendant’s denial of access to Plaintiff on one occasion, and (2) the argument that Defendant did not have title and ownership to the premises that was free and clear of all restrictions throughout the closure period. (Response to Def. Material Fact Nos. 4-5.)

First, the court finds that the evidence showing that Defendant’s security personnel denied access to Plaintiff on one occasion is insufficient to show a triable issue of material fact as to whether Defendant hindered Plaintiff’s use and enjoyment of the property. As set forth above, Plaintiff has presented evidence showing that, on April 7, 2020, one of Plaintiff’s employees “attempted to check on the premises, but [Defendant’s] security personnel would not permit access.” (Alexander Decl., ¶ 52.) Plaintiff does not submit evidence (1) explaining whether its subsequent email requesting assistance to Defendant went unanswered, (2) establishing that this employee was not permitted to access the premises upon speaking with Defendant, or (3) establishing that Defendant had, at any other time, prevented Plaintiff from using the premises. Instead, Plaintiff has only shown that there was one instance in which a security guard did not permit an employee inside. “[I]n order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material act on the merits of the defendant’s showing.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.) The court finds that Plaintiff has not met its burden to “produce substantial responsive evidence” as to whether Defendant breached the Lease by hindering Plaintiff’s use of the premises.

Second, Plaintiff has not presented meaningful argument, nor pointed to any authority, showing that the restriction on its operations pursuant to the government closure orders clouded Defendant’s title or otherwise impacted Defendant’s title within the meaning of section 36.1 of the Lease.

The court therefore grants Defendant’s motion for summary adjudication as to the first cause of action for breach of lease—breach of landlord’s representations, warranties, and covenants.

3. Second Cause of Action for Breach of Lease—Failure to Provide Credit

“[T]he elements of a cause of action for breach of contract are (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, supra, 51 Cal.4th at p. 821.) In connection with this cause of action, Plaintiff alleges that (1) “Defendant is in breach of the Lease for failing to provide a credit to [Plaintiff] for Rent paid during the Closure Period[,]” (2) it is entitled to a credit for rent “paid during the Closure Period in accordance with the Lease including, without limitation, Civil Code [section] 1511(1), and under the circumstances,” and (3) Plaintiff has been damaged due to Defendant’s “failure to allow Plaintiff a credit for Rent paid during the Closure Period, and to proportionately abate Rent….” (Compl., ¶¶ 66, 69, 70.)

The court finds that Defendant has met its burden of showing that the second cause of action for breach of lease—failure to provide no credit has no merit because Defendant has shown that an element of the cause of action (Defendant’s breach of the Lease) cannot be established.

First, to the extent that Plaintiff bases this cause of action on the ground that its performance was excused pursuant to Civil Code section 1511, Defendant has met its burden to show that such a theory is without merit because, as set forth above, Defendant has produced evidence showing that this statute is inapplicable and does not excuse Plaintiff’s performance of its obligation to pay rent. Second, Defendant has shown, for the reasons set forth above, that the other asserted doctrines of frustration of purpose, impossibility, and impracticability do not excuse Plaintiff from its obligation to pay rent to Defendant and therefore has shown that Plaintiff is not entitled to a credit for rent paid during the closure periods. Third, Defendant has presented evidence showing that the Lease does not require Defendant to abate rent based on the government closure orders. (Compl., ¶ 70 [Defendant damaged Plaintiff by (1) failing to allow Plaintiff a credit, and (2) failing to proportionately abate Rent].) Specifically, Defendant has presented evidence showing that it did not prohibit Plaintiff’s access to the premises, which would otherwise constitute a circumstance for abatement under section 30 of the Lease, as set forth more fully in connection with the discussion on the sixth cause of action. (Def. COE Ex. A, Lease, § 30; Def. COE Ex. R, Alexander Dep., pp. 101:10-13, 60:6-19, 61:3-10, 61:19-24.)

The court finds that Plaintiff has not met its burden to show that a triable issue of material fact exists as to the element of Defendant’s breach of the contract because, as set forth above, Plaintiff has not met its burden to show that a triable issue of material fact exists as to (1) the applicability of Civil Code section 1511 so as to require the abatement of rent, or (2) whether the Lease requires the abatement of rent due to the government closure orders pursuant to the doctrines of impossibility, impracticability, and frustration of purpose.

The court therefore grants Defendant’s motion for summary adjudication as to the second cause of action for breach of lease—failure to provide credit.

4. Third Cause of Action for Breach of Lease—Failure to Excuse Rent

The court finds that Defendant has met its burden of showing that the third cause of action for breach of lease—failure to excuse rent has no merit because Defendant has shown that an element of the cause of action (Defendant’s breach of the Lease) cannot be established. As set forth in connection with the second cause of action for failure to provide credit, Defendant has presented evidence showing that (1) the Lease set forth specific, defined circumstances in which abatement was required, and (2) none of those expressly defined conditions occurred and required Defendant to abate Plaintiff’s rent.

The court finds that Plaintiff has not met its burden to show that a triable issue of material fact exists as to the element of Defendant’s breach of the contract because Plaintiff has not met its burden of producing evidence to show a triable issue of material fact exists as to whether (1) Civil Code section 1511 excused its obligation to pay rent or Defendant was required to excuse payment of rent under other circumstances, or (2) Defendant was required to proportionately abate rent.

The court therefore grants Defendant’s motion for summary adjudication as to the third cause of action for breach of lease—failure to excuse rent.

5. Fourth Cause of Action for Common Count—Monies Had and Received

A cause of action for money had and received “is viable wherever one person has received money which belongs to another, and which in equity and good conscience should be paid over to the latter.” (Avidor v. Sutter’s Place, Inc. (2013) 212 Cal.App.4th 1439, 1454 [internal quotations omitted].) “[T]he plaintiff must prove that the defendant received money intended to be used for the benefit of [the plaintiff], that the money was not used for the plaintiff’s benefit, and that the defendant has not given the money to the plaintiff.” (Ibid. [internal quotations omitted].) Plaintiff alleges that Defendant became indebted to and received money that belongs to Plaintiff by (1) improperly charging and receiving rent during the closure period, (2) refusing to provide a credit to Plaintiff for rent paid during the closure period, and (3) refusing to prorate rent during the time period in which the ongoing restrictions were in place. (Compl., ¶ 81.)

The court finds that Defendant has met its burden of showing that the fourth cause of action for common count—monies had and received has no merit because Defendant has shown that an element of the cause of action (Defendant’s receipt of money that belongs to Plaintiff) cannot be established. As set forth above, Defendant has produced evidence showing that Plaintiff was not excused from its obligation to pay Defendant rent, and therefore Defendant (1) did not improperly charge or receive rent, (2) was not required to provide a credit to Plaintiff for rent paid during the closure period, and (3) was not required to prorate or abate rent during that time period.

The court finds that Plaintiff has not met its burden to show that a triable issue of material fact exists as to the element of Defendant’s receipt of money that belongs to Plaintiff. As set forth above, Plaintiff has not met its burden to show that Defendant (1) improperly charged and received rent, (2) improperly refused to provide Plaintiff a credit for rent paid, or (3) improperly refused to prorate rent.

The court therefore grants Defendant’s motion for summary adjudication as to the fourth cause of action for common count—monies had and received.

6. Fifth Cause of Action for Common Count—Monies Paid by Mistake

“[M]oney paid under a mistake of fact may be recovered back, however negligent the party paying may have been in making the mistake, unless the payment has caused such a change in the position of the other party that it would be unjust to require him to refund.” (Doyle v. Matheron (1957) 148 Cal.App.2d 521, 522-523.)

The court finds that Defendant has met its burden of showing that the fifth cause of action for common count—monies paid by mistake has no merit because Defendant has shown that an element of the cause of action (Plaintiff’s payment of money to Defendant by mistake) cannot be established. Defendant has produced evidence showing that Plaintiff paid rent and other charges owing under the Lease “under protest.” First, Plaintiff’s person most qualified testified that Plaintiff paid all rent under the Lease, “a portion of which was paid under protest with full reservation of rights because it was not owed.” (Def. COE Ex. R, Alexander Dep., p. 68:10-17.) Second, in its discovery responses, Plaintiff stated that Plaintiff “paid rent, under protest, reserving all rights.” (Def. COE Ex. X, pp. 2:8-10, 3:6-7.) The court therefore finds that Defendant has met its burden to produce evidence showing that the money paid by Plaintiff was not “under a mistake of fact” since Plaintiff had always maintained that the amounts paid were not due. (Doyle, supra, 148 Cal.App.2d at p. 522-523.)

The court finds that Plaintiff has not met its burden to show that a triable issue of material fact exists as to the element of Plaintiff’s payment of money to Defendant under a mistake of fact because Plaintiff has confirmed that it paid all rent to Defendant with the belief that its payment of rent was not required. In its separate statement, Plaintiff expressly states that it “paid all rent and other charges under protest, reserving all rights.” (Pl. Response to Def. Material Fact No. 31.) Moreover, Plaintiff’s Director of Lease Administration, Vice President, and Senior Real Estate Counsel has stated that Plaintiff paid the rent demanded by Defendant “under protest” and “with a full reservation of rights….” (Alexander Decl., ¶¶ 38, 40-46, 48.)

The court therefore grants Defendant’s motion for summary adjudication as to the fifth cause of action for common counts—monies paid by mistake.

7. Conclusion

Because the court has granted summary adjudication on each cause of action alleged by Plaintiff in its Complaint, the court finds that all of the papers submitted show that there is no triable issue as to any material fact and that Defendant is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The court therefore grants Defendant’s motion for summary judgment on Plaintiff’s Complaint.

ORDER

The court grants defendant Wedge Office, LLC’s motion for summary judgment on plaintiff Fitness International, LLC’s Complaint.

The court orders defendant Wedge Office, LLC to prepare, serve, and lodge a proposed judgment no later than 10 days from the date of service of this order.

The court sets an Order to Show Cause re entry of judgment for hearing on _________, 2023, at 11:00 a.m., in Department 53.

The court orders defendant Wedge Office, LLC to give notice of this ruling.

IT IS SO ORDERED.

DATED: March 23, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court