Judge William Y. Wood, Case Number: 37-2023-00010611-CU-BC-NC, Date: 2024-05-24 Tentative Ruling

Judge: William Y. Wood, Case: 37-2023-00010611-CU-BC-NC, Date: 2024-05-24 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - May 23, 2024

05/24/2024 01:30:00 PM N-29 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:William Y Wood

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Civil - Unlimited Breach of Contract/Warranty Summary Judgment / Summary Adjudication (Civil) 37-2023-00010611-CU-BC-NC RAINE VS. POPOFF [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 03/05/2024

Defendants/Cross-complainants Jack Popoff, Investors Property Management Group, Inc., Jonathan Peacher and Cross-Complainant, Jack Popoff, as Trustee of the Popoff Family Trust's motion for summary judgment/summary adjudication (ROA # 46) is granted in part and denied in part.

Defendants/Cross-complainants' request for judicial notice (ROA # 53) is granted.

As a preliminary matter, the Court chooses to exercise its discretion and consider the late filed opposition brief. ROA # 63.

On March 14, 2023, Plaintiff/Cross-defendant David Raine filed a complaint asserting causes of action for declaratory relief, disgorgement of rents and monetary damages. ROA # 1. On April 17, 2023, Defendant/Cross-complainant Jack Popoff filed a cross-complaint asserting claims for breach of contract, unpaid rent and unjust enrichment. ROA # 15.

Defendants/Cross-complainants move for summary judgment/summary adjudication of the causes of action asserted in the complaint and waiver defense. Defendant/Cross-complainant Jack Popoff moves for summary judgment/summary adjudication of the causes of action in the cross-complaint. ROA # 46.

The Court has numbered the issues to be adjudicated as issues numbered 1-5 for ease of reference (issues 1-3 pertain to the three causes of action in the complaint, issue 4 pertains to the waiver defense and issue 5 pertains to the cross-complaint).

In analyzing motions for summary judgment/summary adjudication, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing party demonstrated the existence of a triable, material issue of fact. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83.

In ruling on a summary judgment motion/ summary adjudication, the court must 'liberally construe' the opposing party's evidence and 'strictly scrutinize' the moving party's evidence, and 'resolve any evidentiary doubts or ambiguities' in favor of the opposing party. McDonald v. Antelope Valley Community College District (2008) 45 Cal.4th 88, 96 – 97. Similarly, 'any doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion.' Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535.

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3110526 CASE NUMBER: CASE TITLE: RAINE VS. POPOFF [IMAGED] 37-2023-00010611-CU-BC-NC Issues 1-3 (Complaint) Plaintiff/Cross-defendant alleges that Defendants/Cross-complainants: (1) leased commercial property to the Plaintiff for the purpose of conducting his business of designing and building hand-crafted custom cabinetry and furniture; (2) the property was illegal in that it did not comply with building codes, laws and ordinances; (3) Defendants failed to make the necessary repairs to remedy the noncompliance; (4) the property was illegal in that the City never provided a Certificate of Occupancy prior to Defendants' leasing of the property to the Plaintiff; (5) Defendants made intentional or negligent misrepresentations to the Plaintiff to induce him into entering into the Lease; and (6) Plaintiff has been denied full use of the Premises since June 1, 2019. Complaint, ROA # 1.

Defendants/Cross-complainants have produced evidence establishing that the Premises leased to the Plaintiff was to be used for storage. SSUMF (ROA # 48), Nos. 1-2 (citing as evidence to the Lease, declarations of Jack Popoff and Jonathan Preacher and Plaintiff/Cross-defendant's deposition).

Defendants/Cross-complainants also establish that City never told Plaintiff/Cross-defendant that he could not operate his business from the Premises. Id. at Nos. 6-7 (Plaintiff/Cross-defendant's deposition). Finally, there is no evidence that Plaintiff/Cross-defendant was ever told that the Premises failed to comply with any building codes, laws or ordinances. Id. at No. 8 (Declarations of Popoff and Preacher). As such, there is no evidence that Defendants/Cross-complainants breached their Lease with the Plaintiff/Cross-defendant or that Defendants/Cross-complainants made any misrepresentations regarding the condition of the Premises.

The burden shifts to the Plaintiff/Cross-defendant. Plaintiff/Cross-defendant has provided no evidence to contradict Defendants/Cross-complainants' evidence. Plaintiff/Cross-defendant argues that '...there are triable issues of material fact as to (1) the falsity of the of the representation made in the limited warranty contained within the lease that stated according to Defendant Popoff's knowledge the Premises was not in violation of any law, (2) Defendants obligation after a fire broke out in the ceiling due to faulty building electrical wiring in May 2020, to make any repairs to the Leased Unit, including but not limited to the structural, electrical, plumbing, fire sprinklers or for ADA compliance, (3) whether the non-existence of various permits, including the lack of any original building permit for the Leased Unit, and Defendants failure to make repairs to the building as required by the City of San Marcos, including but not limited to the structural, electrical, plumbing, fire sprinklers and modifications to the parking area to achieve ADA compliance renders Plaintiff's leased space an illegal unit which could not lawfully have been leased, used or occupied for any purpose, and (4) Plaintiff's awareness of Defendants building having been non-compliant with various applicable codes at the time he signed the two-year lease extension.' Oppo.

(ROA # 63), 5:3-18.

Plaintiff/Cross-defendant has not produced any evidence to support these arguments. Arguments in legal briefs do not constitute evidence. Beagle v. Vasold (1966) 65 Cal. 2d 166, 176. Moreover, Plaintiff/Cross-defendant has failed to comply with CRC Rule 3.1350 by failing to file an opposition to the separate statement and evidence to support his opposition papers.

Therefore, the Court grants Defendants/Cross-complainants' motion for summary adjudication of issues numbered 1, 2 and 3.

Issue Number 4 (Waiver Defense to Complaint) Turning to the waiver defense, Defendants/Cross-Complainants argue that Plaintiff/Cross-Defendant waived any right to assert these claims when he entered into a signed two-year lease extension on February 8, 2021. Separate Statement of Undisputed Material Fact (SSUMF), No. 30 (citing to the First Amendment to Lease and the declarations of Jack Popoff and Jonathan Peacher).

Defendants/Cross-Complainants agreed to extend the lease for two years without increasing the rent and with abatement of one month's rent in exchange for Plaintiff/Cross-Defendant to get the property up to Code and fully permitted. Id. at Nos. 32-33 (citing to the First Amendment to Lease and the declaration of Jonathan Peacher). The Amendment expressly provided that '[a]ll matters concerning the Calendar No.: Event ID: TENTATIVE RULINGS

3110526 CASE NUMBER: CASE TITLE: RAINE VS. POPOFF [IMAGED] 37-2023-00010611-CU-BC-NC Premises including, but not limited to any report or information supplied by Lessor shall be independently verified by Lessee.' Id. at No. 34.

The burden shifts to the Plaintiff/Cross-defendant to demonstrate a triable issue of material fact regarding the waiver defense. Plaintiff/Cross-defendant has not presented any evidence contradicting the evidence presented by the Defendants/Cross-complainants.

Thus, the motion for summary adjudication of issue number 4 is granted.

Issue Number 5 – Cross-Complaint Defendant/Cross-complainant Jack Popoff seeks summary adjudication of whether Defendant/Cross-complainant is entitled to judgment on the first (breach of contract) and second (unjust enrichment) causes of action because Plaintiff/Cross-defendant failed to pay rent required by the lease for many months, and he failed to vacate the premises even after the lease term had expired, requiring lessor to incur the expense of preparing an action for eviction and unjustly enriching Plaintiff/Cross-defendant at Defendant/Cross-complainant's expense.

The SSUMF contains thirteen facts relating to these two causes of action. SSUMF, Nos. 35-47. These facts do not demonstrate that Defendant/Cross-complainant Jack Popoff is entitled to judgment because they are silent as to the amount of damages relating to unpaid rent, holdover rent and damages to the commercial space. Id. The Court notes that the declaration of Jonathan Peacher identifies the amount of unpaid and holdover rent to be $28,322. See Peacher Decl. (ROA # 51), ¶ 17. However, '[f]acts stated elsewhere [than in the separate statement] need not be considered by the court [citation]....' San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [whether to consider evidence not in separate statement is within sound discretion of court].

Even if the Court were to consider the declaration of Mr. Peacher to establish the amount of unpaid and holdover rent, there is no evidence that the Court was able to locate, establishing the amount of damages to the commercial space.

Thus, the burden never shifts to the Plaintiff/Cross-defendant and the motion for summary adjudication of issue number 5 is denied.

Conclusion Defendants/Cross-complainants' motion for summary judgment is denied.

Defendants/Cross-complainants' motion for summary adjudication of issues numbered 1-4 is granted.

Defendants/Cross-complainants may submit a proposed judgment relating to the complaint.

Defendants/Cross-complainants' motion for summary adjudication of issue number 5 is denied.

This minute order constitutes the Court's order. No party is required to submit a proposed order after hearing.

This is the tentative ruling for an appearance hearing (in person or remote) at 1:30 p.m. on Friday, May 24, 2024. If no party appears at the hearing, this tentative ruling will become the order of the Court as of May 24, 2024. If the parties are satisfied with the Court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the Court and each other of their intention not to appear, though this notice is not required.

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