Judge: Stephen I. Goorvitch, Case: 23STCV04659, Date: 2024-02-26 Tentative Ruling

Case Number: 23STCV04659    Hearing Date: March 13, 2024    Dept: 39

Demesne Corporation v. Walgreen Company

Case No. 23STCV04659

Motion for Summary Judgment

            Plaintiff Demesne Corporation (“Plaintiff”) filed this action for declaratory relief against Defendant Walgreen Company (“Defendant”).  Plaintiff alleges as follows:

            On or about April 14, 2017, Defendant entered into a ground lease to rent the property at issue for a term of 30 years, from January 1, 1998, to December 31, 2027.  (Complaint, ¶ 6.)  On or about May 4, 2004, Defendant entered into a sublease with Plaintiff whereby Plaintiff leased the property.  (Id., ¶ 7.)  Plaintiff alleges that the term of the lease was 10 years, from August 1, 2004, through July 31, 2014.  (Id., ¶ 7.)  The sublease provided three options for Plaintiff to extend the lease.  (Id., ¶ 9.)  Each option was for a five-year extension, meaning that the total lease term could be 25 years.  (Ibid.)  Plaintiff alleges that there was an error in the lease, because it erroneously states that the term would end on July 31, 2013, which is nine years after execution.  (Ibid.)

            Plaintiff attached the lease to the complaint.  (See Complaint, Exh. A.)  The lease has rent listed in 12 month increments for ten periods, suggesting that the lease was intended to be 10 years.  (See id., Exh. A, ¶ 2(a)(ix).)  However, the provision for the final year’s rent is written to state that the term ends on July 31, 2013, not July 31, 2014.  (See id., Exh. A, ¶ 2(a)(x).)

Defendant moves for summary judgment.  “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

            The Court grants Defendant’s motion, finding waiver by Plaintiff.  Generally, waiver is the voluntary relinquishment of a known right.  (See Zamora v. Lehman (2010) 186 Cal.App.4th 1, 12.)  Defendant advances the deposition testimony of James Green (“Green”), who testified that Plaintiff identified the alleged error in the sublease in May 2021.  However, when Plaintiff exercised its third option to extend the sublease term, Plaintiff indicated that the sublease term would expire on July 31, 2028.  (Declaration of Shanon J. McGinnis, Exhibit A, pp. 58, 99-100, 103.)  Although Plaintiff believed the date was inaccurate, it did not object to the inaccuracy and agreed that the end of the lease would be July 31, 2028.  (Ibid.)  This evidence satisfies Defendant’s burden, shifting the burden to Plaintiff to advance sufficient evidence to give rise to a triable issue.

            Plaintiff fails to do so.  Plaintiff relies on the declaration of James Green.  Green states that he “understood that the sublease was off by one year” when he exercised the option on behalf of Plaintiff.  (Declaration of James Green, ¶ 21.)  Green states that “when [he] wrote letters exercising options [he] used the years set forth in the sublease, including the final option to 2028.”  (Ibid.)  Green never objected or made any correction, even though he had identified the issue.  (Ibid.)  This does not give rise to a triable issue because he waived the right to challenge the expiration date of the final option. 

            Based upon the foregoing, the Court orders as follows:

            1.         The Court grants Defendant’s motion for summary judgment and finds that the lease ends on July 31, 2028, not July 31, 2029.

            2.         The Court advances and vacates all dates, having granted summary judgment to Defendant.

            3.         Defendant may lodge a proposed judgment if necessary.

            4.         Defendant’s counsel shall provide notice and file proof of such with the Court.