30-12-596407
Plaintiff’s UNOPPOSED Motion for Summary Judgment

Plaintiff Landlord HFOP City Plaza LLC moves for summary judgment against Defendant Tenant, the law firm of Brady, Vorwerck, Ryder & Caspino (BVRC). Although Defendant has filed no Opposition, the court DENIES Plaintiff’s motion because it is both procedurally and substantively defective in at least 6 main respects.

The Plaintiff’s notice of motion states that the Plaintiff moves for summary judgment on the ground that “undisputed facts establish that Plaintiff HFOP owes no contractual obligations to Defendant BVRC under the lease agreement between the parties.”

A. Notice Does Not Identify Operative Pleading

First, the notice of motion is defective because it does not specify the operative pleading and the date when it was filed. Where, as here, Plaintiff has filed multiple pleadings, such notice is helpful to avoid confusion and for the convenience of the parties. The court presumes that Plaintiff is addressing the Second Amended Complaint (SAC) filed on 12/12/13.

B. Notice Too General and Incorrect on Its Face

Second, the notice of motion is defective because it is too general. It fails to properly identify all of the issues to be decided with adequate specificity. In fact, the notice of motion is worded so generally that it is clearly incorrect on its face, so the motion is summarily denied on that basis.

Both the Landlord and the Tenant admit that they signed a lease agreement. So the Landlord clearly owes the Tenant many contractual duties under the lease. The question is which specific duties is the Landlord challenging? Here, the notice of motion gives Defendant and the court absolutely no clue of what those contested issues might be.

C. Summary Adjudication Not Properly Noticed

Third, the notice of motion is defective because the motion is not a true motion for summary judgment, but rather a motion for summary adjudication. Plaintiff seeks to adjudicate some, but not all of the issues alleged in the SAC.

On a motion for summary judgment, the issues are framed by the pleadings. The pleadings determine which issues are material, so the moving party’s evidence must be directed to the claims and defenses raised by the pleadings. (Weil & Brown, Civil Procedure Before Trial (The Rutter Group 1997 ed. & 2002 Supp.) Summary Judgment, ¶ 10:230, p. 10-75.)

At pages 7-8, the SAC prays for a declaration from the court as to five issues under the lease agreement:

1. that HFOP is not required to perform a safety risk assessment,

2. that HFOP is not required to hire a third party to perform a safety risk assessment,

3. that HFOP is not required to provide additional security than it already provides,

4. that HFOP is not required to more thoroughly police people who smoke around the building, and

5. that HFOP is not required to police the attire and demeanor of tenants to prevent them from giving dirty looks, discussing unprofessional subjects, or looking disheveled.

In the SAC, Plaintiff sought declaratory relief on the ground that it owed no duty under Articles 13(b) and 22(h) of the lease agreement. (SAC at ¶¶ 21-22.)

However, the separate statement fails to address any of these issues of duty or legal theories for relief. Instead, the separate statement appears to raise a sixth issue and a new legal theory that was never alleged in the SAC — that HFOP sold the building to a new landlord on 7/12/13 and owes no contractual duty AFTER that date. Therefore, Plaintiff cannot properly seek summary judgment or summary adjudication on that new issue or new theory, because they are alleged nowhere in the SAC.

D. Separate Statement Defective

Fourth, the separate statement is defective because it does not properly address all of the issues and theories raised in the first cause of action of the SAC, which would be necessary to obtain summary judgment.

Even assuming this were a motion for summary adjudication, it was not properly noticed as such and the separate statement is defective for failure to properly identify each claim and issue of duty being raised. (CCP 437c (f)(1); CRC 3.1350 (d).) Furthermore, Plaintiff cannot win summary adjudication as to the first cause of action, because it would not completely dispose of a claim or an issue of duty. (CCP 437c (f)(1).)

E. Triable Issues of Fact Remain

Fifth, the facts alleged in the separate statement fail to establish as a matter of law that the Tenant’s complaints were inaccurate or invalid, and fail to establish as a matter of law that the Landlord owed no duty to honor the Tenant’s right of quiet enjoyment.

Triable issues of fact remain as to whether the Tenant’s complaints were valid and accurate and whether the insults and injuries complained of were legitimate, whether they were so serious and frequent as to interfere with the Tenant’s right of quiet enjoyment, and whether the Landlord breached the lease agreement by failing to take reasonable measures to investigate and assess the security risk, if any, to provide additional security if necessary, and to police the alleged misconduct of other tenants. (Plaintiff’s Separate Statement at Facts 4-17, 24-28, 30.)

F. Prior Landlord v. New Landlord: Standing to Seek Declaratory Relief

Sixth, it appears that the prior Landlord lacks standing to seek declaratory relief going forward. If so, the prior Landlord is not entitled to seek summary judgment on its own behalf.

The prior Landlord now argues that it is entitled to summary judgment on the ground that after it sold the building, it was no longer the Landlord and no longer owed Tenant any duty under the lease agreement. This argument is not only irrelevant, it also undercuts Plaintiff’s motion for two reasons.

First, this was not the gravamen of Plaintiff’s claims in any of its three pleadings. In each pleading, the Landlord alleged that it was a party to the lease agreement, but that it owed no existing duty under the plain language of the existing lease. This is a completely different legal issue than the issue of whether the Landlord is no longer a party to the lease agreement.

Second, even if the parties agree that the prior Landlord owes no duty going forward, that does not resolve the dispute as to whether the prior Landlord owed a duty prior to 7/12/13; nor does it resolve the potential dispute as to whether the new landlord, stepping into the prior landlord’s shoes, owes the disputed duties.

The court notes that it was the prior Landlord who initiated this lawsuit and not Defendant. So if the prior Landlord believes the issues of duty prior to 7/12/13 are now moot, then the prior Landlord may voluntarily dismiss the action or may ask the new landlord to substitute in as real party in interest.

Or about 2/14/14, in its demurrer, Defendant Law Firm argued that HFOP lacked standing to sue because HFOP had sold its interest in the property and was no longer the Landlord. Defendant Law Firm asked the court to take judicial notice of a 7/12/13 letter that HFOP had sent to all of its tenants announcing the change of ownership.

However, at the demurrer stage, the court declined to take judicial notice of this evidence because it was not alleged in the Complaint and remained reasonably subject to dispute.

The court also overruled the demurrer because the court believed that the lawsuit remained viable, because in theory the new landlord might elect to substitute in as the real party in interest. Where plaintiffs lack or have lost standing, the courts must liberally allow them to amend their complaints to substitute in as plaintiffs the “true” real parties in interest. (CashCall Inc. v. Superior Court (2008) 159 Cal.App.4th 273, 287-288.) However, despite ample time to do so, the new landlord has failed to substitute in.

If the prior Landlord admits that the 7/12/13 letter was genuine and extinguished its rights and duties under the lease agreement, then how can the prior Landlord claim standing to sue for declaratory relief as to the parties’ rights and duties under the contract?