Judge Serena R. Murillo, Case Number: 22STCV06116, Date: 2023-05-24 Tentative Ruling

Judge: Serena R. Murillo, Case: 22STCV06116, Date: 2023-05-24 Tentative Ruling

Case Number: 22STCV06116 Hearing Date: May 24, 2023 Dept: 31

TENTATIVE

Plaintiff’s Motion for Summary Judgment, or Summary Adjudication is GRANTED and DENIED IN PART.

The Court GRANTS Plaintiff’s request for Summary Adjudication as to Issues Nos. 1, 2, 3, 5, 7, 8, 10, 11, and 12 and DENIES Summary Adjudication as to Issues Nos. 4, 6, and 9.

Background

On February 17, 2022, Plaintiff Winstress Limited filed a Complaint against Defendants Yolanda E. Wilber (“Wilber”); Alejandro Jose Guerrero (“Guerrero”); and Does 1 to 30 for Breach of Lease.

On January 05, 2023, Plaintiff filed a Motion for Summary Judgment, or Summary Adjudication in the Alternative.

Defendant Guerrero’s counsel’s request for relief as Counsel was granted on May 05, 2023.

On May 04, 2023, Defendant Wilber filed opposing papers to Plaintiffs’ Motion for Summary Judgment. Defendant Guerrero filed a Declaration in Opposition to Plaintiffs’ Motion.

Plaintiff filed a reply on May 12, 2022.

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. Atl. 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.) The moving party is entitled to summary judgment if they can show that there is no triable issue of material fact or if they have a complete defense thereto. (Aguilar, supra, 25 Cal. 4th at 843.)¿ Summary adjudication may be granted as to one or more causes of action within an action, or one or more claims for damages. (Cal. Code of Civ. Proc. §437c(f).)¿¿¿¿¿¿

A defendant moving for summary judgment bears two burdens: (1) the burden of production – presenting admissible evidence, through material facts, sufficient to satisfy a directed verdict standard; and (2) the burden of persuasion – the material facts presented must persuade the court that the plaintiff cannot establish one or more elements of a cause of action, or a complete defense vitiates the cause of action. (Code Civ. Proc., § 437c(p)(2);¿Aguilar,¿supra, 25 Cal.4th at p. 850-851.) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.¿¿(Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)¿¿Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.”¿(Id.)¿“On ruling on a motion for summary judgment, the court is to ‘liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.’” (Cheal v. El Camino Hospital¿(2014) 223 Cal.App.4th 736, 760.)¿¿¿

On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” (Binder v. Aetna Life Ins. Co.¿(1999) 75 Cal.App.4th¿832, 839.)¿¿

Defeating summary judgment requires only a single disputed material fact. (See CCP § 437c(c) [a motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”] [emphasis added].) Thus, any disputed material fact means the court must deny the motion – the court has no discretion to grant summary judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)¿¿¿

REQUEST FOR JUDICIAL NOTICE

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).) “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

Plaintiff requests judicial notice of the following:

Exhibit 1: A true and correct copy of the Resolution of the Board of Supervisors of the County of Los Angeles Further Amending and Restating the County of Los Angeles Covid-19 Tenant Protections Resolution Adopted January 25, 2022.

The Court GRANTS Plaintiff’s request for Judicial Notice as to this request.

On reply, Plaintiff requested judicial notice of the following:

Exhibit 1: A true and correct copy of an image from Google Maps depicting the Premises, located at 1186 S. Crocker Street, Los Angeles California 90012, in March 2020, is attached hereto as Exhibit 1. This document can be found at Google Maps, by searching “1186 Crocker Street, Los Angeles California 90012” in the search bar, clicking on the picture of the street to get the street view, clicking “See more dates,” and clicking “March 2020.”

Exhibit 2: A true and correct copy of an image from Google Maps depicting the Premises, located at 1186 S. Crocker Street, Los Angeles California 90012, in February 2021, is attached hereto as Exhibit 2. This document can be found at Google Maps, by searching “1186 Crocker Street, Los Angeles California 90012” in the search bar, clicking on the picture of the street to get the street view, clicking “See more dates,” and clicking “February 2021.”

Plaintiff presents evidence that Google Map images have been accepted as facts and proposition not reasonable subject to dispute. (See Pahls v. Thomas (10th Cir. 2013) 718 F.3d 1210, 1216, fn. 1 [taking judicial notice of a Google map and satellite image as a source whose accuracy cannot reasonably be questioned]; U.S. v. Perea-Rey (9th Cir. 2012) 680 F.3d 1179, 1182, fn. 1 [same]; Hernandez v. Caliber Bodyworks LLC (N.D. Cal. Apr.4, 2022) No. 21-cv-5836, 2022 WL 1002450, at *4 [taking judicial notice of Google Maps Street View images of property where relevant events occurred]; United States v. Nettles (E.D. Mo. June 7, 2021) No. 18 CR 1007, 2021 WL 3131658, at *5 n.9 [“The undersigned may take judicial notice of historical map information located in Google Maps”].)

While the Court is inclined to accept Exhibits 1 and 2 as suitable for judicial notice. However, the Court DENIES this specific request on the basis that Plaintiff presented this evidence on reply and fails to provide a reason why the evidence was not presented earlier.

EVIDENTIARY OBJECTIONS

A. Defendant Yolanda E. Wilber Submits Evidentiary Objection to the Evidence Presented in the Declaration of Daniel Soroudi.

Objections Nos. 1, 3, 7, 8, 9, 10, 11, and 12 are OVERRULED.

Objections Nos. 2, 4, 5, 6, and 13 are SUSTAINED.

B. Plaintiff Submitted Evidentiary Objection to the portions of Defendant Wilber’s Declaration.

All objections are OVERRULED.

C. Plaintiff Submitted Evidentiary Objection to the portion of Defendant Guerrero’s Declaration.

Objections Nos. 5 and 6 are SUSTAINED and all other objections are OVERRULED.

Discussion

Plaintiff Winstress Limited moves for an Order granting Summary Judgment in its favor against Defendants Yolanda E. Wilber (“Wilber”) and Alejandro Jose Guerrero (“Guerrero”) as to the following issues:

Issue 1: As a matter of law, Plaintiff’s First Cause of Action of Breach of Lease in

Plaintiff’s Complaint, Plaintiff leased the Premises to Defendant.

Issue 2: As a matter of law, Plaintiff’s First Cause of Action of Breach of Lease in

Plaintiff’s Complaint, Plaintiff performed all of its obligations.

Issue 3: As a matter of law, Plaintiff’s First Cause of Action of Breach of Lease in Plaintiff’s Complaint, Tenant breached the Lease by, among other things, failing to deliver all of the Rent due under the Lease.

Issue 4: As a matter of law, Plaintiff’s First Cause of Action of Breach of Lease in Plaintiff’s Complaint, Tenant owes to Plaintiff pursuant to the Lease $279,363.00 in unpaid Rent.

Issue 5: As matter of law, Defendant Wilber’s Fourth Affirmative Defense of Breach of Contract by Plaintiff on the grounds that Plaintiff breached the implied warranty of good faith and fair dealing by acting unreasonably is without merit because the undisputed facts establish that Plaintiff performed all of its contractual obligations.

Issue 6: As matter of law, Defendant Wilber’s Fifth Affirmative Defense of Failure to Mitigate Damages on the grounds that Plaintiff refused to accept a reasonable settlement offered by Defendant, unreasonably delayed in filing the lawsuit and failed to exercise reasonable diligence in failing to re-rent the subject property lacks merit because the undisputed facts establish that Defendants breached the Lease and are still in possession of the property.

Issue 7: As matter of law, Defendant Wilber’s Seventh Affirmative Defense of Waiver on the grounds that “Plaintiff has through representations or actions waived its right to sue” lacks merit because the undisputed facts establish that Plaintiff did not waive their right to recover unpaid Rent based on Defendants’ breach of the Lease.

Issue 8: As matter of law, Defendant Wilber’s Tenth Affirmative Defense of Prevention of Performance on the grounds that “Plaintiff prevented Defendant from performing under the contact as defined under Civil Code 1511, due to the Covid pandemic” lacks merit because the undisputed facts establish that Plaintiff did not prevent Defendant from performing its obligations under the Lease.

Issue 9: As matter of law, Defendant Wilber’s Fifteenth Affirmative Defense of No Damage to Plaintiff on the grounds that “Plaintiff did not suffer any damages (economic loss)” lacks merit because the undisputed facts show that Plaintiff is owed $279,363.00 in unpaid Rent (as defined below)

Issue 10: As matter of law, Defendant Wilber’s Eighteenth Affirmative Defense of Frustration of Purpose on the grounds that an unexpected event or occurrence happened which prevented Defendant from receiving use of the property lacks merit because the undisputed facts establish that no event prevented Defendant from using the property and performing his contractual obligations.

Issue 11: As matter of law, Defendant Guerrero’s Third Affirmative Defense of Failure to State a Claim Upon Which Relief Can be Granted on the grounds that Plaintiff’s demand for payment of rent failed to comply with the County of Los Angeles’s COVID-19 Tenant Protection Resolutions lacks merit because the undisputed facts establish that Defendant was not protected under the County of Los Angeles’s COVID-19 Tenant Protection Resolutions.

Issue 12: As matter of law, Defendant Guerrero’s Fourth Affirmative Defense of Failure to State a Claim Upon Which Relief Can be Granted on the grounds that Plaintiff seeks relief in contravention of the County of Los Angeles’s COVID-19 Tenant Protection Resolutions by, including, seeking relief personally against Mr. Guerrero lacks merit because the undisputed facts establish that Defendant was not protected under the County of Los Angeles’s COVID-19 Tenant Protection Resolutions.

I. Statement of Facts

Plaintiff as Landlord entered into a Commercial Lease Agreement (the “Lease”) for the subject premises located at 1186 S. Crocker Street, Los Angeles. (Compl. ¶ 6 and Ex. A of Complaint [Lease].) Defendant Guerrero does not deny signing the Lease. (Guerrero Decl. ¶ 2.) Defendant Wilber does not deny that she co-signed the Lease but asserts she believes she was mentally incapacitated at the time of signing. (Wilber Decl. ¶ 4.) Plaintiff asserts that on or about January 07, 2022, Plaintiff served Defendants with a Demand for Payment of Rent pursuant to the Lease. (Recor Decl. ¶ 2.) Defendant Guerrero failed to pay rent and Plaintiff filed this Complaint for Breach of Lease on or about February 17, 2022.

II. The Legal Standard for Breach of Lease

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) As explained below, triable issues of fact exist as to the amount of damages owed in terms of rent and whether Plaintiff was obligated to mitigate its damages.

III. Defendant Wilber Failed to Present Evidence that she Lacked the Mental Capacity to Sign the Lease

In opposition to this Motion, Defendant Wilber submitted a declaration asserting that she is 72 years old, has serious health issues, and for several years has taking medication that has affected her ability to concentrate or understand. (Wilber Decl. ¶ 2.) Defendant Wilber is a resident of Florida and has never traveled to California to sign the Lease. (Id. ¶¶ 1, 4.) Defendant Wilber does not dispute that her signature appears on the Lease but asserts that she was “acting under the pressure of Mr. Guerrero” when she signed the Lease she “was likely mentally incapacitated at the time.” (Id. ¶ 4.)

Plaintiff correctly asserts that the burden is on Defendant Wilber to show that she was mentally incapacitated at the time she signed the Lease. Mental incapacity is an affirmative defense that Defendant Wilber raised as her Twelfth Affirmative Defense. (See Gomez v. Smith (2020) 54 Cal.App.5th 1016, 1040.)

Here, Defendant Wilber was required to prove mental incapacity by a preponderance of the evidence. (See Conservatorship of O.B. (2020) 9 Cal.5th 989, 998 [“The default standard of proof in civil cases is the preponderance of the evidence.”]; People v. Neidinger (2006) 40 Cal.4th 67, 72 [“it is constitutionally permissible to place on the defendant the burden of proving affirmative defenses by a preponderance of the evidence, as long as the defendant is not required to negate an element of the offense.”].) Defendant Wilber failed to meet her burden because she asserts that she was “likely” incapacitated but does not state that she was in fact incapacitated and thus unable to understand the nature of the contract or appreciated its probable consequences. (See Hellman Commercial Trust & Savings Bank v. Alden (1929) 206 Cal. 592, 603; In re Darilek's Estate (1957) 151 Cal.App.2d 322, 326 [“Proof of extreme feebleness, sickness, old age, etc., does not prove mental incapacity nor shift the burden of proof on the proponent.”].)

Therefore, it is undisputed that Defendant Wilber had the capacity to sign the Lease Agreement and is thus liable for the Lease to the same extent as Defendant Guerrero. (Soroudi Decl. Ex. A [Lease].)

IV. Base Rent Due

Defendants assert that on January 25, 2022, the County of Los Angeles ended the COVID-19 Tenant Protections and all rent previously owed is now immediately due. (D’s RJN Ex. 1.) For Commercial Tenants, the Los Angeles Tenant Protections (“LATP”) at Section VI(B)(C)(2) provides in part:

“a. Commercial Tenants with nine (9) or employees or fewer shall have until January 31, 2023 to repay unpaid rent incurred during the Protected Time Period.

b. Commercial Tenants with ten (10) or more, but fewer than 100, employees, shall have until July 31, 2022 to repaid unpaid rent incurred during the Protected Time Period, in equal installments, unless the commercial Tenant and Landlord agree to an alternate payment arrangement.”

For commercial tenants, the Protected Time Period means “March 4, 2020, through January 31, 2022, during which a commercial Tenant was unable to pay rent due to Financial Impacts Related to COVID-19.” (LATP § IV(J)(2) It is undisputed that pursuant to Paragraph 1.5 of the Lease, rent was $,5,600.00 beginning May 01, 2019, and rent would be increased by five percent (5%) to $,5880.00 beginning April 2020 pursuant to paragraph 63 of the Lease, titled “Rent Adjustments. (UMF 3, 4, 5.) Therefore, even if Defendants were protected by the COVID-19 Tenant Protections, Plaintiff has presented evidence that the rent owed is now due as the protection period has now ended. (LATP § VI(B)(C)(2).)

The Court finds that Plaintiff has presented evidence that Defendants owe Base Rent in the amount of $22,803.00 for the months of December 2020 to March 2021. (UMF 6, 38, 46, 52, 64, 78, 96.)

The burden shifts to Defendants to show that rent is not due or shows that triable issues of fact exist as to the rent requested for the months of December 2020 to March 2021. Defendants fail to meet this burden. Defendants cannot that the COVID-19 Tenant Protections stopped the accumulation of rent owed or canceled the rent owed.

V. Additional Rent

Paragraph 4.2 of the Lease states: “Lessee shall pay to Lessor during the term of the hereof, in addition to the Base Rent, Lessee’s Share (as specified in Paragraph 1.6(b)) of all Common Area Operating Expense…” (UMF 12, 41.) Similarly, Paragraph 61 of the Addendum to the Lease provides:

“Lessor's estimate of Lessee's Share of Common Area Operating Expenses (the "Estimated Operating Expenses"), which Lessee agrees to pay Lessor in monthly installments as additional rent (as described in Section 4.2 (d) of the body of the Lease), is initially set at Four Hundred Dollars ($400.00) per month. In the event that Lessor in any given year elects not to give Lessee any annual statement showing Lessee's Share of the actual Common Area Operating Expenses for the preceding Lease year (as described in Section 4.2 (d) of the body of the Lease), then the amount of the Estimated Operating Expenses for said preceding year shall be deemed to be Lessee's Share of the actual amounts of Common Area Operating Expenses owed for said preceding Lease year, and there shall be no credit or debit between Lessor and Lessee for any overpayment or deficiency from the Estimated Operating Expenses.”

(UMF 13.)

Plaintiff in their Motion assert that the Defendants failed to pay additional rent for the months of January 2021 to December 2022 in the amount of $9,600.00. (Mot. at 3:26-27.) Undisputed Material Fact (“UMF”) Nos. 42 and 48 state that Defendants failed to pay additional Rent for the same amount for the months of January 2021 to January 2022. (UMF 42, 48.) UMF Nos. 54, 66, 80, and 98 conversely state that Defendants failed to pay additional rent from January 2021 to December 2022. (UMF 54, 66, 89, 98.)

Therefore, it is unclear to the Court, for how long Defendants are alleged to have defaulted and what the amount Defendants owed in Additional Rent. Defendants argue that the Lease was from April 1, 2010, through March 21, 2021, but otherwise makes no statement as to whether additional rent is owed. (Soroudi Decl. Ex. A.) Nevertheless, the burden remains with Plaintiff to show that it is entitled to additional rent and that no triable issues of fact exist as to the additional rent owed. Due to the conflicting dates on when the additional rent was due, triable issues of fact exist as to the issue of additional rent due.

VI. Material Issues of Fact Exist as to Whether Defendants Owe Holdover Rent and/or Are in Possession of the Lease.

It is undisputed that Paragraph 26 of the Lease provides for holdover rent in case Defendants retain possession of the Lease after the Lease Expires. (UMF 7, 39.) Plaintiff asserts that Defendants owe holdover rent in the amount of $246,960.00 for the months of April 2021 to December 2022. (Soroudi Decl. ¶ 13, Ex. A.) In its Motion, Plaintiff asserted that Defendants retain possession of the subject premise and as evidence cite Exhibit A, which is a true and correct copy of the Lease. (See UMF 1 [Soroudi Decl. ¶ 3, Ex. A].) No other evidence is cited. California Rules of Court, rule 3.1350 subdivision (d) states that in the separate statement, each undisputed material fact must be followed by evidence that establishes the undisputed fact. Here, Plaintiff’s Motion and Separate Statement both fail to present or cite evidence that shows Defendants retained possession of the premises after the Lease term ended.

In its reply, for the first time, Plaintiff presents evidence that Defendants retained possession of the subject premises by way of two Google Maps images purporting to show Defendant Guerrero’s mannequins inside the store. (D’s RJN No. 2, Ex. 1, 2.) Defendant Guerrero does not dispute that he left some mannequins and some clothes at the subject premise, that he still has the keys to the premises, and that he removed the mannequins and clothes shortly after the Plaintiff’s Motion was filed. (Guerrero Decl. ¶ 4.) Defendant asserts that he tried to return the keys to Plaintiff in 2021 and 2022 and that he was willing and able to move his things but Plaintiff failed to provide instructions to him. (Id.) Furthermore, Defendant Guerrero admits that he did try to run a business at the subject premises until sometime in 2022. (Id.)

The general rule is that new evidence is not permitted on reply unless good cause exists, and the other party is given the opportunity to respond. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) Here, Plaintiff fails to explain why it did not present evidence that Defendants’ had possession of the premise in its initial motion. Furthermore, the Court may ignore evidence not disclosed in the moving party’s separate statement, even if the evidence is referenced within the memorandum. (See Martine v. Heavenly Valley Limited Partnership (2018) 27 Cal.App.5th 715, 725.) Plaintiff’s separate statement is devoid of reference to evidence that Defendants had possession of the subject premise.

Lastly, the fact that Defendant Guerrero tried to run a business until sometime in 2022, leaves questions as to how long Defendant Guerrero is alleged to have been a holdover tenant. Moreover, Defendant Wilber’s counsel presents evidence that Plaintiff’s counsel represented to Defendant Wilber that the subject premises had already been returned on January 13, 2022, by email. (Recor Decl. ¶ 4. Ex. B [“With regard to possession, it has already been returned.”].) Therefore, Plaintiff may be estopped from asserting that Defendants continue to retain possession of the premises based on representations made by Plaintiff’s counsel to Defendants. Moreover, nothing in Plaintiff’s January 07, 2022, Demand Letter states that Plaintiff seeks holdover rent or repossession of the subject premises. (Shakouri Decl. Ex. B.) Lastly, Plaintiff fails to address Defendant Wilber’s assertion that representations were made that the subject property had already been returned.

Here, the burden was on Plaintiff to prove that Defendants maintained possession of the subject premises for a specific period of time or continue to retain possession of the subject premises, never relinquished possession, and that a month-to-month tenancy was created and continues to exist between the parties. Plaintiff has failed to meet this burden.

VII. Defendants Fail to Present Evidence that Plaintiff Failed to Perform its Obligation Under the Lease

Paragraph 13.5 of the Lease requires Defendants to Plaintiff with written notice of an obligation to perform but failure to perform within a reasonable time is deemed a breach of the Lease. (Soroudi Decl. ¶ 27, Ex. A.) Plaintiff asserts that it has performed all obligations required under the Lease.

The burden is on Defendants to show that Plaintiff has breached the Lease by failing to perform an obligation that is required by the Lease. Defendant Guerrero asserts that Plaintiff did not perform all of its obligations under the Lease prior to December 2020 because Plaintiff failed to fix the air conditioning or repair the front door after more than 30 days. (Guerrero Decl. ¶ 11.) Defendant Guerrero does not provide evidence that he sent Plaintiff a written notice or that the obligations to make such repairs were required by the Lease. (See Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166 [to create a triable issue of material fact, the opposing party must present substantial responsive evidence].) Therefore, Defendants have failed to show that triable issues of fact exist as to whether Plaintiff performed all obligations under the Lease.

VIII. Other Affirmative Defenses

As to Defendant Wilber’s fifth affirmative defense, Defendant Wilber asserts that Plaintiff cannot present evidence that it mitigated damages because Plaintiff failed to mitigate damages by refusing to accept a reasonable settlement offer, delaying in filing this action in order to increase costs, failing to exercise reasonable diligence in re-renting the subject premises, falling to use the property or remove any holdover tenants.

Plaintiff does not dispute this but asserts that it has no obligation to mitigate damages because Defendants remain in possession of the property. Plaintiff fails to cite any legal authority in support of this proposition. Moreover, triable issues of fact exist as to whether Defendants are in possession of the premises, for how long Defendants had possession, and if Defendants continue to retain possession of the premises.

As to Defendant Wilber’s other affirmative defenses, Defendant Wilber filed to show by a preponderance of the evidence that triable issues of fact exist as to her fourth, seventh, tenth, fifteenth, and eighteenth affirmative defenses. Moreover, Defendant Guerrero has failed to oppose this Motion and therefore cannot show by a preponderance of the evidence that triable issues of fact exist as to his third and fourth affirmative defense.

XI. Final Adjudication of Plaintiffs’ Claims

The Court finds the following to be undisputed:

Issue 1: As a matter of law, Plaintiff’s First Cause of Action of Breach of Lease in Plaintiff’s Complaint, Plaintiff leased the Premises to Defendant.

Issue 2: As a matter of law, Plaintiff’s First Cause of Action of Breach of Lease in Plaintiff’s Complaint, Plaintiff performed all of its obligations.

The Court finds the following to be disputed:

Issue 4: As a matter of law, Plaintiff’s First Cause of Action of Breach of Lease in Plaintiff’s Complaint, Tenant owes to Plaintiff pursuant to the Lease $279,363.00 in unpaid Rent.

Conclusion

Plaintiff’s Motion for Summary Judgment, or Summary Adjudication is GRANTED and DENIED IN PART.

The Court GRANTS Plaintiff’s request for Summary Adjudication as to Issues Nos. 1, 2, 3, 5, 7, 8, 10, 11, and 12 and DENIES Summary Adjudication as to Issues Nos. 4, 6, and 9.

Moving party is ordered to give notice.