Case Number: TC027536??? Hearing Date: September 01, 2016??? Dept: S27
NOTICE DEFICIENCY
Plaintiff Palo Verde, Inc. (?Palo Verde?) moves for Summary Adjudication on its First Cause of Action for Declaratory Relief and Third Cause of Action for Breach of Contract against Defendant Compton Commercial Development Renaissance Plaza, LLC (?Compton?).
Compton raises a preliminary issue that the motion is improperly noticed. The motion is entitled ?Motion for Partial Summary Judgment? as opposed to the statutory language ?Motion for Summary Adjudication.? The notice of the motion, however, refers to neither of these titles and expressly asks for ?summary judgment.? Defendant is correct that where summary judgment is noticed summary adjudication cannot be granted. The Court denies the motion on this ground, but it will nonetheless address the separate, substantial reasons for denial of the motion.
DEFENDANT?S OBJECTIONS
Defendant?s objections to the moving evidence do not comport with the format requirements of CRC 3.1354(b) in that the objectionable matter is not quoted or otherwise ?set forth.? For this reason, the objections are overruled.
ANALYSIS AND RULING
Plaintiff operates a Taco Bell restaurant on the property owned by Defendant. It is one of several tenants. Plaintiff purports to be the assignee of a lease executed by its predecessor Taco Bell Corporation. The gravamen of every cause of action is that Defendant landlord has overcharged Plaintiff for its share of property taxes and CAM charges.
The motion purports to set forth the correct formula as found in the lease and seeks damages for breach of contract and a declaration that the current method of calculation does not comply with the lease.
The motion fails for multiple reasons:
1. Plaintiff?s separate statement never expressly states a precise amount of damages. This precludes adjudication of the contract claim;
2. The declarations of Danny Joseph Bakewell and Robert H. McNeill, Jr. create triable issues as to whether Plaintiff is an assignee of the lease. There is no doubt that Plaintiff is a tenant, but it may not be entitled to rely on the provisions of the assigned lease. The evidence creates triable issues for both breach of contract and declaratory relief;
3. The evidence cited in dispute of Plaintiff?s facts Four and Five in the separate statement creates triable issues of the affirmative defense of waiver and estoppel.
The motion is denied.