17-CIV-05278 ROXANE I. BEEMAN VS. ART MCADAMS, ET AL.

ROXANE I. BEEMAN ART MCADAMS
TODD A. ROBERTS JOSHUA G. WILSON

MOTION FOR JUDGMENT TENTATIVE RULING:

Defendant Art McAdams’ Motion for Judgment on the Pleadings, directed to Plaintiff Roxane Beeman’s 11-16-17 Complaint, is DENIED as to all asserted claims, for the reasons set forth below.

As an initial matter, the Court finds the motion was timely-filed. Defense counsel initially sought to notice the motion for a 9-24-18 hearing date, which, per defense counsel’s declaration, appeared available on the Court’s website. But when filing the motion, the Court clerk informed Defendant only 10-1-18 was available for a hearing. While the motion generally should be noticed for and heard 30 days prior to the initial trial date, Defendant made a genuine attempt to set the hearing prior to 10-1-18, but could not do so due to the Court’s calendar. Plaintiff has had ample opportunity to oppose the motion, and has done so. There is no prejudice. Under these circumstances, the Court finds the motion was timely-filed, with a proper hearing date.

However, the Court finds that all asserted causes of action are properly plead. Defendant points to the distinction in the Lease (Ex. A to the Complaint) differentiating between the initial 20-year term (the “primary” term) and any additional term after the expiration of the initial 20 years. See Lease (the term is “20 years from and after the date hereof and so long thereafter as Lessee shall conduct development … or producing operations on the leased land without cessation for more than 90 consecutive days.”). Defendant notes that the “90 consecutive days” language applies only after expiration of the 20-year primary term, and thus that language cannot serve as a basis for any alleged breach during the primary term. Although Defendant appears correct on that point, that alone does not mean Defendant cannot breach the Lease during the 20-year term. Paragraphs 1-13 set forth a number of requirements/obligations that apply during the primary term, the breach of which gives Plaintiff the express right to terminate the Lease, assuming Defendant is given proper notice of the breach(es) and the opportunity to cure. See, e.g. the Lease language immediately following the 20-year term language: “In consideration of the promises, the parties hereby agree as follows: On or before March 15, 2005, Lessee shall commence operations on the lease land and thereafter continue its operations with reasonable diligence …”. Thus, by its terms, while the Lease may not require actual oil production during the initial term, it also does not grant Defendant carte blanche to simply do nothing at all. Thus, while the “90 consecutive day” language may not apply during the primary term, the Complaint here does adequately alleged breach(es) during the initial term. See ¶¶11-12, 14-16, 20-22, 24.

October 1, 2018 Law and Motion Calendar PAGE 10 Judge: HONORABLE SUSAN GREENBERG, Department 3 ________________________________________________________________________ Contrary to the argument in Defendant’s Reply brief, the Court also finds that the Complaint adequately alleges notice of breach and an opportunity to cure. Defendant argues that as a factual matter, Plaintiff merely sent two “Notice[s] of Termination of Lease” to Defendant without providing a 90-day opportunity to cure the alleged breach(es), as the Lease requires. See Lease, ¶11. The referenced Notices, however, are external to the pleadings and cannot be considered on this motion. The Complaint sufficiently alleges notice to Defendant and the opportunity to cure. See, e.g., ¶¶16-17, 21, 28-29, 47. The Court assumes all factual allegations are true. Whether Plaintiff will ultimately be able to prove the alleged breach(es), and that a sufficient notice of breach and an opportunity to cure was given to Defendant, is an evidentiary issue that cannot be resolved based on the pleadings.