Judge Yolanda Orozco, Case 21STCV44977 2023-04-20 Tentative Ruling

Judge: Yolanda Orozco, Case: 21STCV44977, Date: 2023-04-20 Tentative Ruling

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: 21STCV44977 Hearing Date: April 20, 2023 Dept: 31

PROCEEDINGS: MOTION FOR SUMMARY JUDGMENT

MOVING PARTY: Plaintiff/Cross-Defendant Azusa Rowland, LLC

RESP. PARTY: Defendants/Cross-Complainants Fitness International, LLC and Fitness & Sports Clubs, LLC

MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING

Plaintiff’s Motion for Summary Judgment is CONTINUED.

The Court CONTINUES the hearing and orders Defendants/Cross-Complainants Fitness International, LLC and Fitness & Sports Clubs, LLC to file a separate statement in compliance with California Rules of Court, rule 3.1350 subdivision (e).

Background

This action arises out of a breach of a commercial lease.

On December 09, 2021, Plaintiff Azusa Rowland, LLC filed a Complaint against Fitness Sports Clubs, LLC; Fitness International, LLC (collectively “Defendant” or “Fitness”) and Does 1 to 10.

The operative First Amended Complaint (FAC) alleges causes of action for:

(1) Breach of Lease; and

(2) Declaratory Relief.

On January 24, 2022, Defendant filed a Cross-Complaint against Plaintiff. The operative First Amended Cross-Compliant (FACC) alleges causes of action for:

(1) Breach of Contract,

(2) Declaratory Relief

On January 27, 2023, Plaintiff moved for summary judgment.

Defendant Fitness filed opposing papers on April 06, 2023.

Plaintiff filed a reply on April 14, 2023.

Legal Standard

California Rules of Court, rule 3.1350 subdivision (e) lays out the requirements of a separate statement filed in opposition to a motion for summary judgment or summary adjudication:

“(1) Each material fact claimed by the moving party to be undisputed must be set out verbatim on the left side of the page, below which must be set out the evidence said by the moving party to establish that fact, complete with the moving party's references to exhibits.

(2) On the right side of the page, directly opposite the recitation of the moving party's statement of material facts and supporting evidence, the response must unequivocally state whether that fact is “disputed” or “undisputed.” An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.

(3) If the opposing party contends that additional material facts are pertinent to the disposition of the motion, those facts must be set forth in the separate statement. The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion. Each fact must be followed by the evidence that establishes the fact. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.”

Code of Civil Procedure section 437c subdivision (b)(1) states, in part:

“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.”

DISCUSSION

Defendant’s Failure to Comply California Rules of Court, rule 3.1350 subdivision (e)

California Rules of Court, rule 3.1350 subdivision (e)(3) states: “If the opposing party contends that additional material facts are pertinent to the disposition of the motion, those facts must be set forth in the separate statement.”

Here, Defendant Fitness included additional material facts numbered 1 to 46 in the same separate statement as Plaintiff’s undisputed material facts. Rather than maintaining Plaintiff’s original numbering on the separate statement, Defendant Fitness renumbered Plaintiff’s separate statement starting at number 47. This makes it confusing for the Court to know which material fact is being referenced. Moreover, Plaintiff did not respond to Defendant Fitness’ additional material facts.

In Collins v. Hertz Corp.¿(2006) 144 Cal.App.4th 64, the Appeal Court found it that the trial court did not abuse its discretion in striking portions of the plaintiff’s separate statement on a motion for summary judgment because the separate statement failed to comply with statutory and procedural requirements. (Id. at 72.) The court has the discretion to “refuse to proceed with a summary judgment motion in the absence of an adequate separate statement from the opposing party. … [T]he proper response in most instances, if the trial court is not prepared to address the merits of the motion in light of the deficient separate statement, is to give the opposing party an opportunity to file a proper separate statement.” (Id. at 74.)

The Court CONTINUES the hearing and orders that Defendant Fitness submit a separate statement in compliance with rule 3.1350(e).

Defendant’s Request for a Continuance under Code of Civil Procedure § 437c(h)

The Court also notes Defendant requests a continuance of this motion under section 437c(h) of the Code of Civil Procedure. The Court finds that Defendant Fitness has failed to show that discovery sought is relevant, material, and essential to opposing the motion. “A party seeking continuance or denial of a motion under [Code of Civil Procedure] section 437c, subdivision (h) must show that the facts to be obtained are essential to opposing the motion, that there is reason to believe such facts may exist, and that additional time is needed to obtain these facts.” (501 East 51st Street, Long Beach-10 LLC v. Kookmin Best Insurance Co., Ltd. (2020) 47 Cal.App.5th 924, 939.)

Defendant fails to explain why Plaintiff was required to bring an inverse condemnation claim or why such an action is relevant to this Motion. Defendant also fails to explain why Plaintiff not declaring Fitness in default of the lease much sooner, is material to this action. Plaintiff also represents that Defendant was not diligent in seeking to depose Plaintiff because it was not until March 07, 2023, after Plaintiff had already filed this Motion, that Defendant emailed Plaintiff’s counsel to schedule a deposition date. (Peterson Supp. Decl. ¶ 5.) “At no time did [Defense counsel] request or state that Defendants needed to depose Plaintiff on a date before the deadline for Defendants to file an opposition to the Motion.” (Id.)

Therefore, since Defendant Fitness has failed to articulate that a deposition is needed to establish essential facts in opposition to this Motion, the Court is not inclined to grant any other request for continuance of this Motion unless Defendant can articulate why the facts it seeks to obtain from a deposing Plaintiff’s PMK is essential to opposing this Motion.

The hearing is CONTINUED for compliance with CRC3.1350(e).

Conclusion

Plaintiff’s Motion for Summary Judgment is continued to 5-25-2023, 8:30 am.i

Post Mediation Status Conference is continued to 6-21-2023, 9am.

FSC is continued to 7-19-2023, 9am.

Trial is continued to 7-31-2023 10am

Plaintiff to give notice.