Judge Steven A. Ellis, Case Number: 23STCV05320, Date: 2025-01-21 Tentative Ruling

Judge: Steven A. Ellis, Case: 23STCV05320, Date: 2025-01-21 Tentative Ruling

Case Number: 23STCV05320 Hearing Date: January 21, 2025 Dept: 29

The Nuts, LLC v. 350 South Los Angeles Street Partnership
23STCV05320
Defendant’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues

Tentative

Defendant’s motion for summary judgment is granted.

Background

On March 9, 2023, Plaintiff The Nuts, LLC (“Plaintiff”) filed a complaint against Defendant 350 South Los Angeles Street Partnership, L.P. (“Defendant”) and Does 1 through 50, asserting causes of action for negligence, premises liability, private nuisance, breach of contract, bad faith retention of security, and conversion, all arising out of a lease between the parties and property damage alleged sustained by Plaintiff as a result of a fire on January 28, 2022.

Defendant filed an answer on May 16, 2023.

On May 15, 2024, Defendant filed this motion for summary judgment or, in the alternative, for summary adjudication. The motion was set for hearing on January 13, 2025.

The Court continued the hearing to January 21, 2025.

No opposition has been filed.

Legal Standard

“The purpose of the law of summary judgment 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.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.)

As to each cause of action as framed by the complaint, a defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “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); see also Aguilar, supra, 25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851.)

A plaintiff or cross-complainant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff or cross-complainant has met that burden, the burden shift to the defendant or cross-defendant to show that a “triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

The party opposing a motion for summary judgment or summary adjudication may not simply “rely upon the allegations or denials of its pleadings” but must instead “set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2). To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Discussion

This case arises out of a fire that damaged property on commercial premises leased by Defendant to Plaintiff. In November 21, 2021, the parties entered into a commercial lease. (Defendant’s Statement of Undisputed Material Facts [“DSUMF”], No. 2; Defendant’s Exhibits, Exh. B.) The written lease agreement (the “Lease”) describes the leased premises as 212 East Boyd Street in Los Angeles. (DSUMF, No. 2; Exh. B, ¶ 2.) The leased premises are located next to 212-B East Boyd Street, which was leased to Millenium Masters, Inc. (“Millenium”). (DSUMF, No. 3.)

The fire at issue occurred on January 28, 2022, and started in an alley that is adjacent to the premises leased by Millenium at 212-B East Boyd Street. (DSUMF, Nos. 5-6.) Defendant does not own the alley. (DSUMF, No. 7.) Plaintiff did not complain in writing to Defendant about the conditions of the leased premises or the alley prior to the firm. (DSUMF, No. 8.) Defendant contracted for trash removal from the alley three times per week; the trash containers were for the tenants and were located in the alley. (DSUMF, No. 9.) Defendant did not dispose of any trash or debris in the alley. (DSUMF, No. 12.) Defendant was not aware of prior fires in the alley before January 28, 2022. (DSUMF, No. 11.)

The Lease contains a number of provisions that are relevant (or at least potentially relevant) to this matter.

Paragraph 6.2 of the Lease is entitled “Compliance with Law” and states:

“(a) Lessor warrants to Lessee that the Premises, in its state existing on the date that the Lease term commences, but without regard to the use for which Lessee will use the Premises, does not violate any covenants or restrictions of record, or any applicable building code regulation or ordinance in effect on such Lease term commencement date. In the event it is determined that this warranty has been violated, then shall be the obligation of the Lessor, after written notice from Lessee, to promptly, at Lessor's sole cost and expense, rectify any such violation. In the event Lessee does not give to Lessor written notice of the violation of this warranty within six months from the date that the Lease term commences, the correction of same shall be the obligation of the Lessee at Lessee's sole cost. The warranty contained in this paragraph 6.2(a) shall be of no force or effect if, prior to the date of this Lease, Lessee was the owner or occupant of the Premises, and, in such event, Lessee shall correct any such violation at Lessee's sole cost.

(b) Except as provided in paragraph 6.2(a), Lessee shall, at Lessee's expense, comply promptly with all applicable statutes, ordinances, rules, regulations, orders, covenants and restrictions of record, and requirements in effect during the term or any part of the term hereof, regulating the use by Lessee of the Premises. Lessee shall not use nor permit the use of the Premises in any manner that will tend to create waste or a nuisance or, if there shall be more than one tenant in the building containing the Premises, shall tend to disturb such other tenants.”

Plaintiff never gave notice to Defendant of any violation of Paragraph 6.2(a) by Defendant. (DSUMF, No. 14.)

Paragraph 7.1 of the Lease states:

“Lessee’s Obligations. Lessee shall keep in good order, condition and repair the premises, and every part thereof structural and nonstructural (whether or not such portion of the premises requiring repair, or the means of repairing the same are reasonably readily accessible to Lessee, and whether or not the need for such repairs occurs as a result of lessee’s use, any prior use, the elements or age of such portion of the premises), including, without limiting the generality of the foregoing, all plumbing, heating, air-conditioning, (Lessee procure and maintain at Lessee’s expense, an air-conditioning system maintenance contract,) ventilating, electrical, lighting facilities, and equipment within the Premises, fixtures, walls (interior and exterior), foundation, ceilings, interior and exterior floors, windows, doors, plate glass, and skylights located within the Premises and all landscaping, driveways, parking, lots, fences, and signs located on the premises, and sidewalk and parkways adjacent to the Premises.”

Paragraph 7.4. of the Lease states:

“Lessor’s Obligations. Except for the obligations of Lessor under Paragraph 6.2(a) and 6.3(a) (relating to Lessor's warranty), Paragraph 9 (relating to destruction of the Premises) and under Paragraph 14 (relating to condemnation of the Premises), it is intended by the parties hereto that Lessor have no obligation, in any manner whatsoever, to repair and maintain the Premises nor the building located thereon nor the equipment therein, whether structural or non structural, all of which obligations are intended to be that of the Lessee under Paragraph 7.1 hereof[.] Lessee expressly waives the benefit of any statute now or hereinafter in effect which would otherwise afford Lessee the right to make repairs at Lessor's expense or to terminate this Lease because of Lessor’s failure to keep the premises in good order, condition and repair.”

Paragraph 8.6 of the Lease states:

“Indemnity. Lessee shall indemnify and hold harmless Lessor from and against any and all claims arising from Lessee's use of the Premises, or from the conduct of Lessee's business or from any activity, work or things done, permitted or suffered by Lessee in or about the Premises or elsewhere and shall further indemnify and hold harmless Lessor from and against any and all claims arising from any breach or default in the performance of any obligation on Lessee's part to be performed under the terms of this Lease, or arising from any negligence of the Lessee, or any of Lessee's agents, contractors, or employees, and from and against all costs, attorney's fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon; and in case any action or proceeding be brought against Lessor by reason of any such claim, Lessee upon notice from Lessor shall defend the same at Lessee's expense by counsel satisfactory to Lessor, as a material part of the consideration to Lessor, hereby assumes all risk of damage to property or injury to persons, in, upon or about the Premises arising from any cause and Lessee hereby waives all claims in respect thereof against Lessor.”

Paragraph 8.7 of the Lease is entitled “Exemption of Lessor from Liability and states:

“Lessee hereby agrees that Lessor shall not be liable for injury to Lessee's business or any loss of income therefrom or for damage to the goods, wares, merchandise or other property of Lessee, Lessee's employees, invitees, customers, or any other person in or about the Premises, nor shall Lessor be liable for injury to the person of Lessee, Lessee's employees, agents or contractors, whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain, or form the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures, or from any other cause, whether the said damage or injury results from conditions arising upon the Premises or upon other portions of the building of which the Premises are a part, or from other sources or places and regardless of whether the cause of such damage or injury or the means of repairing the same is inaccessible to Lessee, Lessor shall not be liable for any damages arising from any act or neglect of any other tenant, if any, of the building in which the Premises are located.”

(Emphasis added.)

Paragraph 9.1 of the Lease provides that if the premises “are damaged or destroyed, partially or totally form any cause whatsoever … then Lessee. shall repair, restore and rebuild the Premises to its condition existing immediately prior to such damage or destruction and this Lease shall remain in full force and effect.” Paragraph 9.4 provides that there will be “no abatement of rent or of any other obligation of Lessee” even if the premises are partially or totally destroyed. And in Paragraph 9.6 Plaintiff waived the provision of any statute relating “to termination of leases when the thing leased is destroyed” and agreed that “such event shall be governed by the terms of this Lease.”

In Paragraph 13.1, the Lease defines as a “default” any vacating or abandonment of the premises, any failure to pay rent, and any other failure of Plaintiff to perform the obligations set forth in the Lease (subject to notice and cure provisions). In the event of a material breach by Plaintiff, Defendant is given the right in Paragraph 13.2 to terminate the lease and in Paragraph 5 to retain “all or any portion” of Plaintiff’s security deposit.

Following the fire, Plaintiff failed to pay rent and abandoned the premises. (DSUMF, No. 21.)

In its complaint, Plaintiff asserts six causes of action against Defendant: (1) negligence; (2) premises liability; (3) private nuisance; (4) breach of contract; (5) bad faith retention of security deposit in violation of Civil Code section 1950; and (6) conversion. Defendant now moves for summary judgment or, in the alternative, for summary adjudication as to each of the six causes of action in the complaint and as to Plaintiff’s prayer for punitive damages.

First, Second, and Third Causes of Action (Negligence, Premises Liability, and Private Nuisance).

The basic elements of a cause of action for negligence and for premises liability are the same: (1) the existence of a legal duty; (2) breach of that duty; (3) causation; and (4) resulting damages. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213; Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158; Romero v. Los Angeles Rams (2023) 91 Cal.App.5th 562, 567; Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)

“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714, subd. (a).) This establishes what the California Supreme Court has described as the “default rule” that every person has a legal duty “to exercise, in his or her activities, reasonable care for the safety of others.” (Brown, supra, 11 Cal.5th at p. 214.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

The elements of a cause of action for private nuisance are: (1) that defendant has interfered with plaintiff’s use and enjoyment of property; (2) that the interference causes plaintiff to suffer substantial actual damage; and (3) that the inference is of such a nature, duration, or amount as to be unreasonable. (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263.)

Defendant argues (among other things) that these causes of action are barred by Paragraph 8.7 of the Lease. In Paragraph 8.7, Plaintiff agreed that Defendant would not be liable for property damage caused by fire (among other things) “arising upon the Premises or upon other portions of the building of which the Premises are a part, or from other sources or places.” Even though the fire started outside the leased premises, and then spread to the premises and caused damage to Plaintiff’s property inside the leased premises, the exculpatory provision of Paragraph 8.7 applies.

The law regarding the validity of exculpatory clauses is, at least at a general level, reasonably clear: a party may, in advance, waive claims for ordinary negligence but not claims for gross negligence, recklessness, or intentional torts. (See Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 554; Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35, 52-53; Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1484; Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356.)

Gross negligence is not a tort separate from ordinary negligence. A cause of action for negligence in a pleading is sufficient to cover claims for either ordinary negligence, gross negligence, or both. Gross negligence falls short of a reckless disregard of consequences and differs from ordinary negligence only in degree, and not in kind. (Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184,197.) Mere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty amounts to ordinary negligence. (Frittelli, supra, 202 Cal.App.4th at p. 48.) Gross negligence, in contrast to ordinary negligence, is defined as either “want of even scant care or an extreme departure from the ordinary standard of conduct.” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753–754.) “Gross negligence connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results ....” (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640.) Gross negligence is generally a question of fact. (Ibid.)

On these three causes of action, Defendant, as the party moving for summary judgment, has met its initial burden of presenting facts to show “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).) Specifically, Defendant has shown that the exculpatory clause in Paragraph 8.7 of the Lease provides a complete defense to each of these three causes of action. Even viewing the evidence in the light most favorable to the nonmoving party, and drawing all inferences in its favor, the application of Paragraph 8.7 is clear. Moreover, on this record, it is undisputed that Defendant did not own the alley, that Plaintiff did not complain about the conditions in the alley, that Defendant contracted for trash removal from the alley three times per week, that Defendant did not dispose of any trash in the alley, and that Defendant was not aware of any prior files in the alley. (DSUMF, Nos. 7-12.) There is nothing in this record that would support a reasonable inference of gross negligence, recklessness, or intentional conduct by Defendant.

On summary judgment, the burden now shifts to Plaintiff to show that there are triable issues of material fact on these causes of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Plaintiff has not filed any opposition to the motion or otherwise presented any evidence that creates a triable issue of material fact.

Accordingly, Defendant has shown that it is entitled to judgment as a matter of law on these three causes of action.

Fourth Cause of Action (Breach of Contract)

In its complaint, Plaintiff alleges that Defendant breached the Lease by failing to provide usable premises and by interfering with Plaintiff’s use of the premises. (Complaint, ¶ 67.) But, as set forth above, the Lease places the burden on Plaintiff, not Defendant, of maintaining the leased premises. (E.g., Lease, ¶¶ 7.1, 7.4.) Moreover, Paragraph 9.1 of the Lease specifically provides that if the premises are “damaged or destroyed, partially or totally form any cause whatsoever” Plaintiff – not Defendant – has the obligation to “repair, restore and rebuild the Premises to its condition existing immediately prior to such damage or destruction.”

On this cause of action, Defendant, as the party moving for summary judgment, has met its initial burden of presenting facts to show “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).) Specifically, Defendant has shown that it had no contractual duty to perform the very duties that Plaintiff alleges it failed to perform. Even viewing the evidence in the light most favorable to the nonmoving party, and drawing all inferences in its favor, there was no breach here.

On summary judgment, the burden now shifts to Plaintiff to show that there are triable issues of material fact on this cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Plaintiff has not filed any opposition to the motion or otherwise presented any evidence that creates a triable issue of material fact.

Accordingly, Defendant has shown that it is entitled to judgment as a matter of law on this cause of action.

Fifth Cause of Action (Bad Faith Retention of Security Deposit under Civil Code § 1950.5)

In its Complaint, Plaintiff alleges that Defendant retained its security deposition in bad faith and in violation of Civil Code section 1950.5. As a threshold matter, the undisputed facts in the record establish that this was a commercial lease, not a residential lease. (DSUMF, No. 2; Lease, ¶ 6.1.) Section 1950.5 applies only to residential leases. (Civ. Code, § 1950.5, subd. (a).)

Moreover, the undisputed facts in the record establish that there was no improper retention of the security deposit. As noted above, Paragraph 9.1 of the Lease obligates Plaintiff to repair any damage to or destruction of the premises, in whole or in part. And Paragraph 9.4 expressly provides that there is no rent abatement if the premises are damaged or destroyed. Plaintiff materially breached the Lease, and defaulted on its obligation, by failing to pay rent and abandoning the premises after the fire. (DSUMF, No. 21; Lease, ¶ 13.1.) This material breach gave Defendant the right to retain Plaintiff’s security deposit. (Lease, ¶¶ 5, 13.2.)

On this cause of action, Defendant, as the party moving for summary judgment, has met its initial burden of presenting facts to show “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).) Even viewing the evidence in the light most favorable to the nonmoving party, and drawing all inferences in its favor, the undisputed evidence demonstrates that Defendant did not improperly retain the security deposit and that Civil Code section 1950.5 does not apply.

Accordingly, Defendant has shown that it is entitled to judgment as a matter of law on this cause of action.

Sixth Cause of Action (Conversion)

The Sixth Cause of Action in the Complaint is for conversion. “Conversion is the wrongful exercise of dominion over the property of another. The elements … are the plaintiff's ownership or right to possession of the property at the time of the conversion; the defendant’s conversion by a wrongful act or disposition of property rights; and damages. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use. ” (Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539, 543–44.)

Although the Complaint is not clear, it appears that Plaintiff is alleging that the conversion at issue is Defendant’s failure to return the security deposit, Defendant’s taking possession of the leased premises, or perhaps both. (Complaint, ¶¶ 78-79.) But here, as set forth above, Defendant has presented undisputed evidence that shows that it had a right to retain the security deposit following Plaintiff’s breach, and that Plaintiff abandoned the leased premises.

On this cause of action, Defendant, as the party moving for summary judgment, has met its initial burden of presenting facts to show “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).) Even viewing the evidence in the light most favorable to the nonmoving party, and drawing all inferences in its favor, the undisputed evidence demonstrates that there was no conversion.

Accordingly, Defendant has shown that it is entitled to judgment as a matter of law on this cause of action.

In sum, Court concludes that Defendant has shown that it is entitled to judgment as a matter of law on each cause of action in the Complaint. The motion for summary judgment is granted.

In light of the above, the Court need not reach, and does not reach, Defendant’s request for summary adjudication as to Plaintiff’s prayer for punitive damages.

Conclusion

The Court GRANTS Defendant’s motion for summary judgment.

Moving party is ordered to give notice.