2012-00123059-CU-BC

Goodwill Industries of Sacramento vs. KRC Elverta Crossing

Nature of Proceeding:  Motion for Summary Judgment and/or Adjudication

Filed By: Law, Matthew A.

Defendant KRC Elverta Crossing L.P.’s (“KRC”) Motion for Summary
Judgment/Summary Adjudication is denied.

Goodwill’s First Amended Complaint seeks to recover amounts incurred to repair
vandalism damage to a heating and air conditioning system (“HVAC”) and amounts
that KRC allegedly over-billed Goodwill for its “common area” trash disposal. There are
four stated causes of action: Breach of written contract, Declaratory relief; Breach of
the implied covenant of good faith and fair dealing, and Quantum meruit. The FAC
alleges this case originates out of the written agreement entitled “Elverta Crossing
Shopping Center Retail Shop Lease” between Pan Pacific Retail Properties, Inc. (“Pan
Pacific”) and Goodwill (hereinafter the “Lease”). (para. 7 FAC) ). Goodwill is an anchor
tenant at the Shopping Center. (AUMF No. 44.) On or about October 11, 2004,
Goodwill entered into the Lease with Pan Pacific to lease a portion of the Elverta
Crossing Shopping Center, located at 8031 Watt Avenue, Antelope,CA. (para. 8)  In or
around October of 2010, unknown suspect(s) gained access to the roof of the
Premises, vandalizing the heating and air conditioning system located on the roof of
the building. The acts of vandalism caused significant damage to the heating and air
conditioning system. Among other things, the suspects vandalized eleven gas
compressor pack units. (para. 11)

As for the HVAC repair, Goodwill contends that the lease requires KRC to repair
damage to the HVAC unit caused by vandalism.   Goodwill also contends that the
lease exempts anchor tenants such as Goodwill from any obligation to pay any pro-
rata share of the common area trash disposal charges. Goodwill further contends that
even if it was required to pay a pro-rata share, KRC charged Goodwill  for more than
its pro rata share.  KRC contends that the lease requires Goodwill to pay for the HVAC
repairs as “maintenance” and that  Goodwill is obligated to pay its pro rata share of
trash removal.

Any party may move for summary judgment in any action or proceeding if the party
contends that (1) the action or proceeding has no merit or (2) there is no defense to
the action or proceeding. CCP 437c(a). A cause of action has no merit if one or more
of the elements of the cause of action cannot be separately established, even if that
element is separately pleaded, or a defendant establishes an affirmative defense to
that cause of action. CCP §437c(o). In addressing the motion, the Court first identifies
the issues framed by the pleadings. The pleadings define the scope of the issues on a
motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima
(1991) 231 Cal. App. 3d 367, 381-382.)

The Court must grant a motion for summary judgment if all the papers submitted show
that there is no triable issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law. (CCP §437c(c); Mann v. Cracchiolo (1985) 38 Cal.
3d 18, 35). Section 437c(c) imposes affirmative duty on a Court to grant summary
judgment motion in appropriate case. ( Preach v. Moister Rainbow (1993) 12 Cal. App.
4th 1441, 1450). The Court must decide if a triable issue of fact exists; if none does,  and the sole remaining issue is one of law, the Court has a duty to determine it. (
Pittelman v. Pearce (1992) 6 Cal. App. 4th 1436, 1441; see also  Seibert Sec. Servs.,
Inc. v. Superior Court (1993) 18 Cal. App. 4th 394, 404).

Summary judgment is properly granted only if the moving party’s evidence establishes
that there is no issue of material fact to be tried. (Lipson v. Superior Court (1982) 31
Cal 3d 362, 374; Huynh v. Ingersoll-Rand (1993) 16 Cal. App. 4th 825, 830). A judge
may not grant summary judgment when any material factual issue is disputed.

To prevail on summary judgment, the movant must “conclusively negate” all disputes
as to any triable issues of material fact. (Code of Civ. Proc. § 437c(c);  Varni Bros.
Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886.) In reviewing the evidence,
the court must resolve all doubts of whether any disputed, material, or triable issues of
fact exist in favor of the party opposing summary judgment. (Podolsky v. First
Healthcare Corp. (1996) 50 Cal.App.4th 632, 642.) Moreover, a fact is “undisputed”
only where there is no evidence contradicting it. (Hanson v. Grode (1999) 76
Cal.App.4th 601, 604.) Applying these standards, where the opposing party can show
“there is a triable issue as to one or more material facts,” the court must deny the
motion for summary judgment. (Code of Civ. Proc. § 437c(g).)

Moreover, it is well-established that in ruling on the motion, the moving party’s papers
are to be strictly construed, while the opposing party’s papers are liberally construed. (
Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1465.) Therefore,
all evidence submitted to the Court on the motion shall be viewed in the light most
favorable to Goodwill and all facts alleged in the declarations supporting Goodwill’s
Opposition must be accepted as true. (Zeilman v. County of Kern (1985) 168
Cal.App.3d 1174, 1179 at fn. 3.) The Court, additionally, must consider not only all the
evidence Goodwill has produced in opposition to the motion, but also “all inferences
reasonably deducible from the evidence.” (Code Civ. Proc. § 437c(c).)

Defendant KRC seeks summary judgment or alternatively summary adjudication of the
following issues:

(1) Defendant had no duty to replace or repair the HVAC Units, nor to reimburse
Plaintiff for repairs it [Goodwill] made to the HVAC units.
(2)Plaintiff had a duty to Reimburse defendant for the Trash Removal Expenses
Incurred by Defendant.
(3) Plaintiff’s First Cause of action Breach of Contract has no merit
(4) Plaintiff’s Second Cause of action Declaratory Relief has no merit
(5) Plaintiff’s Third cause of action Breach of the Implied Covenant has no merit
(6) Plaintiff’s Fourth Cause Quantum Meruit of action has no merit.

In support of the motion as to every issue sought to be adjudicated, KRC contends that
Goodwill’s HVAC unit was damaged in both October of 2010 and January of 2011
when vandals accessed the roof and stripped the units of their copper and aluminum
components.  (UMF 4 and 8)   KRC contends that it provided security for the premises
(UMF 11)  KRC contends Goodwill has no evidence as to how the other persons who
perpetrated the HVAC incident accessed the roof and damaged the HVAC units.
(UMF 13)  KRC also contends that prior to the HVAC incident, Goodwill had no
concerns about security of the HVAC units and the Goodwill had not expressed any
concerns. (UMF 15, 16) .  KRC contends Goodwill has no evidence that additional
security would have prevented the HVAC incident. (UMF 18) In opposition, Goodwill submits evidence to raise a triable issue on UMFs 11, 13, 15,
16, and 18.  According to John Sweet, Goodwill’s Director of Operations, there was no
night-time security until after the vandalism incidents. Sweet also stated at his
deposition that Goodwill had evidence as to how the perpetrators accessed the roof,
via ladder.  (See Webber Decl. para. 5, Depo of John Sweet pages 47-51)  John
Sweet also stated that Goodwill had raised the issue of security with KRC before the
HVAC incident. (Ex O to Webber Decl, John Sweet Depo. pages 41-42, 51-56).  Sweet
also proferred evidence that Goodwill has evidence that additional security would have
prevented the incidents, because in April of 2011 after night time security was hired,
they foiled yet another attempt to access the roof.  (Sweet Depo. page 95-97, 100-102,
1050109.)

Issues 2 – 6 all specifically incorporate and rely on the earlier UMFs 11, 13, 15, 16, and
18.   Defendant’s separate statement contains a total of 34 Undisputed Material Facts
(UMF) , the first 21 of which support each of the issues sought to be adjudicated.  If
there is any issue of fact as to any of UMFs 1-21, the motion must be denied.  As
th
noted in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4   243, 252, a party moving
for summary judgment concedes the materiality of each fact enumerated in its
separate statement and, as a consequence, cannot argue that the motion should be
granted because one or more of these facts are not truly material.  As the Nazir court
noted, the facts enumerated in a moving separate statement have a due-process
dimension in that they define for the opposing party the facts which, if disputed with
th
admissible evidence, result in the motion being denied.  (178 Cal.App.4   at 2521
[citation omitted].)  In reliance on the universe of facts in the moving separate
statement, a party opposing a summary judgment motion is entitled to stop working on
the opposition once (s)he has produced admissible evidence demonstrating that a
single fact presents a triable issue.  Thus, the Fourth Appellate District Court of Appeal
observed:

“Where a remedy as drastic as summary judgment is involved, due
process requires a party be fully advised of the issues to be addressed
and be given adequate notice of what facts it must rebut in order to
prevail.”

(Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 849 [citation omitted].) Further, the
moving party’s evidence is strictly construed and the opposing party’s evidence is
liberally construed, resolving any doubts as to the propriety of granting the motion in
th
favor of the opposing party. Kulesa v. Castleberry (1996) 47 Cal.App.4   103, 112.

The Court finds that there are triable issues of material fact to UMFs
11, 13, 15,16, and 18.  Therefore, the motion for summary adjudication is denied as to
each issue sought to be adjudicated.  The motion for summary judgment is denied.

Because the court has found triable issues of material fact as to the above facts that
KRC deemed relevant to each of the issues sought to be adjudicated, the court need
not reach the parties various disputes as to the meanings of various lease provisions.
Moreover, KRC did not set forth any of the pertinent lease provisions that they relied
on as material facts in their separate statement.  Indeed, at times it appeared that
issues that were in the points and authorities were not addressed in the separate
statement. CRC Rule 3.1350(b) requires that where summary adjudication is sought,
the “specific cause of action, affirmative defense, claims for damages, or issues of duty               must be stated specifically in the notice of motion.”

The prevailing party is directed to prepare a formal order complying with C.C.P. §437c
(g) and C.R.C. Rule 3.1312.