Case Number:?EC066262????Hearing Date:?February 09, 2018????Dept:?A
Lucky Montebello Shopping Center v 5 Star Body & Foot?
MOTION FOR SUMMARY JUDGMENT
Calendar:?????????????????????5
Case:???????????????????????????EC066262
Date:???????????????????????????2/9/18
MP:?????????????????????????????Plaintiff, Lucky Montebello, LLC
RP:??????????????????????????????Defendant, Ming He
RELIEF REQUESTED:
Summary Judgment of Complaint.
SUMMARY OF COMPLAINT:
????????????The Defendants obtained commercial property from the Plaintiff under a written lease.??The Defendants breached the lease agreement by failing to pay rent.
CAUSES OF ACTION FROM COMPLAINT:
1) Open Book Account
2) Account Stated
3) Reasonable Value
4) Breach of Contract
DISCUSSION:
????????????Trial is set for March 19, 2018.
????????????This hearing concerns the Plaintiff?s motion for summary judgment.??Under CCP section 437c, a plaintiff may move for summary judgment if that party contends that there is no defense to the plaintiff?s causes of action or that an affirmative defense has no merit.
The Plaintiff?s Complaint contains three common counts, i.e., open book account, account stated, and reasonable value, plus a cause of action for breach of contract.??Since the Plaintiff argues that there is no defense to its causes of action, the Plaintiff?s burden of proof is to prove each element of its common counts and breach of contract claim.
????????????The Plaintiff?s first, second, and third causes of action seek to recover the damages on the theory of common counts.??The cause of action in common count has the following elements:
????????????1) the statement of indebtedness in a certain sum,
????????????2) the consideration, i.e., goods sold, work done, money loaned, and
????????????3) nonpayment.
????????????Allen v. Powell?(1967) 248 Cal. App. 2d 502, 510.
????????????The Plaintiff provides the following evidence to meet its its burden in its Separate Statement of Facts (?SSF?):
????????????1) the Defendant has a balance due of $73,385.40 in unpaid rent (SSF 5);
????????????2) the consideration was the possession of the Plaintiff?s premises that was provided to the Defendants (SSF 2); and
????????????3) the Defendant has not paid the amounts due (SSF 5).
????????????The amount due of $73,385.40 is based on the Defendant?s failure to pay rent on the entire term of the lease.??The lease agreement had a term from January 1, 2014 to December 31, 2016 and the rent was $2,031.75 per month (see copy of lease in exhibit 2 to Tun decl.).??The parties agreed that there would be annual adjustments to the rent of 4% per year.
The Plaintiff provides evidence that the Defendant breached the lease agreement by failing to pay rent due on October 1, 2014 and on any subsequent date and that the Defendant attempted to terminate the lease agreement by surrendering possession of the premises (Tun decl., paragraph 11 to 12).??The Plaintiff provides evidence that it attempted to mitigate the damages by showing the premises to prospective tenants and it includes applications from prospective tenants (see applications in exhibit 6 to Tun decl.).??The Plaintiff states it was unable to find a suitable tenant until January 2017 (Tun decl., 14).
The Plaintiff provides an accounting of the $73,385.40 amounts (see document in exhibit 5 to Tun decl.).??This accounting identifies the amounts due from October 2014 through December 2016 based on the rent, CAM charges, and late fees.
????????????Accordingly, a review of the Plaintiff?s motion reveals that the Plaintiff has provided evidence that establishes each element of the common counts.
????????????The Plaintiff?s fourth cause of action for breach of contract contains the following elements:
????????????1) the contract,
????????????2) plaintiff’s performance or excuse for nonperformance,
????????????3) defendant’s breach, and
????????????4) the resulting damages to plaintiff.
????????????Reichert v. General Ins. Co. (1968) 68 Cal. 2d 822, 830.
????????????The Plaintiff provides the following evidence to establish each of the elements in the causes of action:
????????????1) the Defendant entered into a written lease agreement with the Plaintiff (SSF 15);
????????????2) the Plaintiff performed all obligations under the lease agreement (SSF 17);
????????????3) the Defendant breached the agreement by failing to pay rent due (SSF 18); and
4) the resulting damages to the Plaintiff are $73,385.40 (SSF 19).
Accordingly, a review of the Plaintiff?s motion reveals that the Plaintiff has provided evidence that establishes each element of its breach of contract claim.
Under CCP section 437c, the Plaintiff has met its burden of proof and the burden is shifted to the Defendant to provide evidence that demonstrates that a question of fact exists with regards to any of the elements in the first cause of action.
????????????The Defendant filed opposition papers.??The Defendant does not deny that she did not pay the $73,385.40 amount due.??Instead, the Defendant argues that she is relying on her first affirmative defense for failure to mitigate damages, the sixth affirmative defense for fraud, mistake, and undue influence, the ninth affirmative defense for waiver, and the tenth affirmative defense for Plaintiff?s prior breach.??The Defendant makes no effort to proceed through these affirmative defenses and identify the evidence that shows that any of these affirmative defenses apply or bar the Plaintiff?s claim.??There is no attempt to show fraud, mistake, undue influence, waiver, or a prior breach by the Plaintiff.
Further, the Defendant?s attorney, Paul Ness, offered, without explanation, photographs of the outside of the premises, including the parking lot, in exhibit 1 to this declaration.??It is unclear how these photographs apply to the pending motion for summary judgment.
Further, Mr. Ness offered, without explanation or effort to organize, various documents in exhibit 2 to this declaration.??These varied documents include, for example, copies of driver licenses, copies of card indicating the Defendant and other individuals are certified massage therapist, copies of checks, more photographs of the premises, and a credit history.??It is unknown how there are any facts in this miscellany of documents that would meet the Defendant?s burden.
In her opposition, the Defendant offered the following arguments.??First, the Defendant argues that the Plaintiff?s accounting for the $73,385.40 amount has discrepancies of ?not less than $5,000?.??The Defendant did not offer any evidence that identifies these discrepancies in the accounting in order to show that there is a dispute of fact regarding the $73,385.40 amount.??The Defendant did not analyze the accounting provided by the Plaintiff or make any effort to identify a discrepancy in the accounting.
As a result, the Defendant has failed to offer evidence that there is any dispute of fact with regards to the $73,385.40 amount due.
Second, the Defendant argues that the Plaintiff accepted a requested assignment of the lease and that this reduces the amount of damages.??Under paragraph 13 of the lease agreement, the written consent of the landlord was required for any assignment of the lease.?The Defendant offers no evidence in her papers that the Plaintiff provided written consent to any assignment of the lease under which the Defendant no longer had an obligation to pay the rent.??Instead, the Defendant, Ming He, provides facts in her declaration that there was a meeting at which the parties discussed Lijun Ghumm and Yuang Su would occupy the premises, that the Defendant would pay the rent, and that Lijun Ghumm and Yuang Su would then compensate the Defendant .??Not only is there no evidence of a written consent to the assignment, but these facts show that the Defendant continued to have the duty to pay the rent to the Plaintiff and that she would then seek compensation from Lujun Ghumm and Yuang Su.
As a result, the Defendant has not offered evidence of an assignment of the lease.
Third, the Defendant argues that the Plaintiff failed to mitigate damages.??As noted above, the Plaintiff offered evidence that it attempted to mitigate the damages by showing the premises to prospective tenants and that it was unable to find a suitable tenant until January 2017.??The Defendant offers no evidence in her papers that the Plaintiff failed to mitigate.??Instead, the Defendant offers bare argument in her opposition that ?to all appearances?, the Plaintiff solely put up a ?for lease? sign and accepted applications.??The Defendant offers no evidence to show that the Plaintiff did not make reasonable efforts to mitigate.
As a result of the Defendant?s failure to offer evidence of a failure to mitigate, the Defendant has not shown that a dispute of fact.
Therefore, the Court will grant the Plaintiff?s motion for summary judgment because the undisputed facts demonstrate that the Plaintiff is entitled to a summary judgment on its Complaint.
????????????Finally, the Plaintiff?s motion requests attorney?s fees and Court costs.??The Plaintiff may recover these fees costs by filing a memorandum of costs and a motion for attorney?s fees, as required by CRC rules 3.1700 and 3.1702.
RULING:
Grant motion for summary judgment.