This case was last updated from Los Angeles County Superior Courts on 05/07/2019 at 13:55:51 (UTC).

SAINT LUKES PASADENA, LLC VS. JASON K. BOUTROS, MD, INC.

Case Summary

On 06/15/2016 SAINT LUKES PASADENA, LLC filed a Contract - Other Contract lawsuit against JASON K BOUTROS, MD, INC. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judge overseeing this case is RALPH C. HOFER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5298

  • Filing Date:

    06/15/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RALPH C. HOFER

 

Party Details

Plaintiffs

SAINT LUKES'S PASADENA LLC

SAINT LUKES PASADENA LLC

Defendants

JASON BOUTROS MD INC.

JASON BOUTROS M.D. AND ASSOCIATES

JASON K. BOUTROS MD INC.

Others

SARKISSIAN AREG A.

BAKER RYAN G.

Attorney/Law Firm Details

Plaintiff Attorneys

BAKER RYAN G.

SALEM NABIL R

WENDY W. HUANG

DENLEY INVESTMENT & MANAGEMENT CO. INC.

Defendant Attorneys

NABIL SALEM

MOTAZ M. GERGES

VIP BHOLA ESQ.

KEREKES STEVEN WILLIAM

GERGES MOTAZ M

BHOLA VIPAN KANT

 

Court Documents

Notice

6/15/2016: Notice

Minute Order

11/14/2016: Minute Order

Request for Judicial Notice

4/10/2017: Request for Judicial Notice

Unknown

4/10/2017: Unknown

Unknown

5/26/2017: Unknown

Unknown

5/26/2017: Unknown

Unknown

6/2/2017: Unknown

Minute Order

6/9/2017: Minute Order

Unknown

12/7/2017: Unknown

Minute Order

2/6/2018: Minute Order

Notice of Ruling

3/12/2018: Notice of Ruling

Minute Order

5/8/2018: Minute Order

Substitution of Attorney

5/18/2018: Substitution of Attorney

Unknown

6/7/2018: Unknown

Minute Order

7/18/2018: Minute Order

Minute Order

8/14/2018: Minute Order

Notice

9/28/2018: Notice

Stipulation and Order

4/12/2019: Stipulation and Order

67 More Documents Available

 

Docket Entries

  • 04/12/2019
  • Stipulation and Order (JOINT STIPULATION FOR BENCH TRIAL; AND [PROPOSED ORDER]); Filed by SAINT LUKES PASADENA, LLC (Plaintiff)

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  • 04/10/2019
  • at 08:30 AM in Department D; Order to Show Cause Re: (Mandatory Settlement Conference) - Held - Continued

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  • 04/10/2019
  • Minute Order ( (Order to Show Cause Re: Mandatory Settlement Conference)); Filed by Clerk

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  • 04/09/2019
  • at 08:30 AM in Department D; Non-Appearance Case Review (NON-APPEARANCE CASE MANAGEMENT ORDER CONTINUING CASE SET ON A DARK DATE') - Held

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  • 04/09/2019
  • at 4:15 PM in Department D; Nunc Pro Tunc Order (Minute Order of 4/09/2019 for Department D) - Held

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  • 04/09/2019
  • Certificate of Mailing for (Minute Order (Non-Appearance Case Review - Case Management Order Continuing...) of 04/09/2019); Filed by Clerk

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  • 04/09/2019
  • Minute Order ( (Nunc Pro Tunc Order Minute Order of 4/09/2019 for Department D)); Filed by Clerk

    Read MoreRead Less
  • 04/09/2019
  • Minute Order ( (Non-Appearance Case Review - Case Management Order Continuing...)); Filed by Clerk

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  • 04/04/2019
  • Response (TO OSC RE: MANDATORY SETTLEMENT CONFERENCE); Filed by SAINT LUKES PASADENA, LLC (Plaintiff)

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  • 02/25/2019
  • Substitution of Attorney; Filed by JASON K. BOUTROS, MD INC. (Defendant)

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160 More Docket Entries
  • 07/13/2016
  • Proof-Service/Summons; Filed by Attorney for Plaintiff

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  • 07/13/2016
  • Proof-Service/Summons; Filed by SAINT LUKES'S PASADENA, LLC (Plaintiff); SAINT LUKES PASADENA, LLC (Plaintiff)

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  • 06/15/2016
  • Notice (of Order to Show Cause Re Failure to Comply with Trial Court Delay Reduction Act); Filed by Clerk

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  • 06/15/2016
  • Complaint filed-Summons Issued; Filed by null

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  • 06/15/2016
  • Complaint filed-Summons Issued

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  • 06/15/2016
  • Summons Filed

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  • 06/15/2016
  • Civil Case Cover Sheet (Civil Case Cover Sheet Addendum and Statement of Location); Filed by Clerk

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  • 06/15/2016
  • Notice (of Assignment); Filed by Clerk

    Read MoreRead Less
  • 06/15/2016
  • Notice (of Case Management Conference); Filed by Clerk

    Read MoreRead Less
  • 06/15/2016
  • Summons; Filed by null

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Tentative Rulings

Case Number: EC065298    Hearing Date: July 31, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 16

Date: 7/31/20

Case No: EC 065298

Case Name: Saint Lukes Pasadena, LLC v. Boutros, et al.

MOTION FOR ATTORNEY’S FEES

[CCP §1033.5(c) (5), Civil Code § 1717]

Moving Party: Defendants Jason K. Boutros, M.D. and Jason K. Boutros as managing member of Jason K. Boutros, M.D., Inc.

Responding Party: Plaintiff Saint Lukes Pasadena, LLC

RELIEF REQUESTED:

Order determining that defendant is prevailing party and for award of reasonable attorney’s fees as costs against plaintiff in the amount of $155,249.50.

SUMMARY OF FACTS:

Plaintiff Saint Lukes Pasadena, LLC alleges that in March of 2000, plaintiff’s predecessor in interest, as the owner of a medical office building in Pasadena, entered into a Lease Agreement with defendants Jason K. Boutros, M.D., Inc., Dr. Boutros and his dbas as tenants. Plaintiff purchased the real property that contains the leased premises, and in May of 2003 Dr. Boutros acknowledged the validity of the Lease and its essential terms, and the parties attempted to negotiate the terms of a new lease, which ultimately proved unsuccessful. Plaintiff alleges that defendants have fallen significantly behind on rent payments under the Lease, and owe plaintiff base rent under the Lease, CAM charges and holdover rent. The complaint alleges causes of action for breach of contract, breach of covenant of good faith and fair dealing, and declaratory relief.

Defendant has filed a cross-complaint against plaintiff as well as against cross-defendant California Institute of Technology, which is alleged to have purchased the subject premises prior to plaintiff’s purchase. The cross-complaint alleges causes of action for implied indemnity, declaratory relief, and contribution.

On November 1, 2019, the court heard motions for summary judgment and/or adjudication brought by defendant Jason Boutros M.D., Inc. and by plaintiff Saint Lukes Pasadena, LLC. The court granted the motion brought by defendant and considered the motion brought by plaintiff mooted by the ruling on defendant’s motion. Judgment was entered on December 6, 2019 in favor of defendant and against plaintiff as to each cause of action in the complaint.

On February 4, 2020, a Notice of Filing of Notice of Appeal was filed, indicating that a notice of appeal in the matter was filed on February 3, 2020, by Ryan G. Baker, counsel for plaintiff.

ANALYSIS:

In general, under CCP § 1021

“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties...”

Under CCP §1032(b), “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Section 1033.5 (a) provides that an allowable cost under §1032 includes attorney’s fees, when authorized by contract, statute or law. CCP § 1033.5 (a)(10).

Where there is an agreement for attorney’s fees, Civil Code §1717 provides:

“(a) In an action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs. ...Reasonable attorney’s fees shall be fixed by the court and shall be an element of the costs of suit.”

CCP § 1032 defines “prevailing party”:

“(4) “Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the “prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides...”

Here, since defendant is a party against whom no relief was recovered, defendant is the prevailing party in this action. The opposition does not dispute that defendant is the prevailing party in this action.

The Lease Agreement under which the action arose provides, in pertinent part:

“In the event of any legal or equitable action arising out of this Lease, the prevailing party shall be entitled to recover all fees, costs and expenses, together with reasonable attorneys’ fees incurred in connection with such action. The fees, costs and expenses (including attorneys’ fees) so recovered shall include those incurred in prosecuting or defending any appeal and shall be awarded for any supplemental proceedings until final judgment is satisfied in full. The prevailing party shall also be entitled to reasonable attorneys’ fees incurred to collect or enforce the judgment obtained.”

[Boutros Decl., ¶ 3, Ex. A, para. 26].

Under this broad provision, it is clear that defendant as prevailing party is entitled to reasonable attorneys’ fees under the Lease. The opposition does not dispute this issue, but argues that defendant is entitled only to “reasonable” fees.

Court’s Determination of Reasonableness of Fees

The California Supreme Court in PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084 established the standard for evaluating the appropriate amount of attorney’s fees to be awarded:

“[T]he fee setting inquiry in California ordinarily begins with the "lodestar," i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. "California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award." Margolin v. Regional Planning Com. (1982) 134 Cal. App. 3d 999, 1004-1005 [185 Cal. Rptr. 145].) The reasonable hourly rate is that prevailing in the community for similar work. Id. at p. 1004; Shaffer v. Superior Court (1995) 33 Cal. App. 4th 993, 1002 [39 Cal. Rptr. 2d 506].) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Serrano v. Priest, supra, 20 Cal. 3d at p. 49.) Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary. (Id. at p. 48, fn. 23.)

...After the trial court has performed the calculations of the lodestar, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure

"It is well established that the determination of what constitutes

reasonable attorney fees is committed to the discretion of the trial court . . .

[Citations.] The value of legal services performed in a case is a

matter in which the trial court has its own expertise. [Citation.] The trial

court may make its own determination of the value of the services contrary to,

or without the necessity for, expert testimony. [Citations.] The trial court makes its determination after consideration of a number of factors, including

the nature of the litigation, its difficulty, the amount involved, the

skill required in its handling, the skill employed, the attention given, the

success or failure, and other circumstances in the case." (Melnyk v.

Robledo (1976) 64 Cal. App. 3d 618, 623-624 [134 Cal. Rptr. 602].)

PLCM, at 1095. (emphasis added).

The Court also held that the standard of review with respect to this determination is abuse of discretion:

“The ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong’-- meaning that it abused its discretion.”

PLCM at 1094, quoting Serrano v. Priest (1977) 20 Cal.3d 25, 49.

The file shows that this matter has been fairly heavily litigated, requiring a motion to set aside an initial default, several discovery motions, trial continuances and a motion by defendant to set aside any waiver of jury trial in the matter.

The declaration of counsel indicates that the legal services required also included preparing an answer and protective cross-complaint for indemnity and declaratory relief, completing case management questionnaires and attending case management and status conferences, participating in extensive written discovery and conducting or defending and attending three depositions, preparing for the first scheduled trial, which included retaining, meeting with, and disclosing expert witnesses, filing a writ of mandate with respect to the order denying the motion to set aside the waiver of jury trial, which was granted, making a motion to continue trial, and preparing the motion for summary judgment and responding to plaintiff’s motion. [Kerekes Decl. ¶ 6]. Fees were incurred by two law firms, and the billings are attached as Exhibits B and C.

Defendant seeks $95,209.50 for the services of former counsel, at an hourly rate of $350 per hour. An additional $56,840 is sought by current counsel, at an hourly rate of $400 per hour.

The motion also seeks 8 hours at $400 per hour to prepare this motion for fees (5 hours preparing motion, 3 hours drafting reply), for an additional $3,200. This brings the total sought to $155,249.50.

This Court’s review of the billings reveals the following irregularities which should be deducted from the total sought:

1. Law Offices of Vip Bhola & Associates claims two $200 charges for copies and postage. These would ordinarily not be recoverable costs. CCP §1033.5(b) specifies that certain items are not allowable as costs unless expressly authorized by law, including: “(3) Postage, telephone and photocopying charges, except for exhibits.” The copying would not appear to be for exhibits used in connection with the summary judgment motion, which was prepared by successor counsel. A total of $400 is accordingly deducted from the total.

2. Law Offices of Vip Bhola & Associates bills for $2,500 in “Court Ordered Sanctions re: Discovery.” These should not be charged against another party. An additional $2,500 is deducted from the total sought.

3. As argued in the opposition, some of the attorney time was originally charged by current counsel to get up to speed on this matter, when it does not appear appropriate to charge plaintiff for the duplication generated by the choice of defendant to switch to new counsel. It would appear that an initial 5.5 hours was spent reviewing the file, and another approximate 6 hours were spend reviewing a previous deposition, and its exhibits. The court finds these efforts duplicative of services billed by the original attorney, and deducts 11.5 hours at $400 per hour, for a total of $4,600, from the total sought.

4. The opposition argues, and this court further finds that defendant’s attorneys’ fees for the Court of Appeal Writ of Mandamus proceedings whereby the Court of Appeal granted defendant’s writ, and the defendant obtained an order overturning the trial court’s ruling denying defendant’s Motion for Relief from Jury Waiver, are not recoverable. The defendant ultimately opted for a court trial, and the defendant ignored and never brought to the Court of Appeal’s attention or this Court’s attention the existence of a jury trial waiver clause in the lease. Consequently, although defendant prevailed on the writ, it was ill-considered and disingenuous for failing to point out the jury trial waiver clauses. Hence, the Court is deducting attorneys’ fees of $4,232.00 on the 02/16/2018 billing statement and attorneys’ fees of $16,465.25 on the 05/30/2018 billing statement for a total deduction of $20,697.25.

5. The opposition also argues that the fees incurred by original counsel Bhola to file a motion to be relieved as counsel appear unnecessary, as the client’s consent should usually suffice. Defendant does not explain why these charges were reasonable and how the cost to resolve an apparent disagreement between attorney and client should be shifted to plaintiff. The fees charged in connection with that motion appear from the billings to consist time charged to by Bhola to appear via Court Call at the Motion to be Relieved as Counsel hearing and a trial setting conference claimed at 3.75 hours at $350 per hour, for a total of $1,312.50. [See Boutros Decl., para. 5; Ex. B, p. 017]. The Court will deduct this sum from the fees sought.

This results in an award of reasonable fees in the sum of $155,249.50 sought, less $400, less $2,500, less $4,600, less $20,697.25, less $1,321.50, for a total reduced award of $125,730.75.

The opposition argues that the evidence submitted with the moving papers concerning the work performed by original counsel is not competent, so that the fees charged by that counsel should be disallowed. The Court finds that the billings are properly before the Court based on the declaration of the client, and that counsel Kerekes is competent to testify regarding the reasonableness of the billing rate charged and hours spent, and the Court also has sufficient experience in this regard. [See Boutros Decl., para. 5; Kerekes Decl., paras. 12-14]. The Court will not disallow fees on this ground. The Court also notes that a declaration of former counsel is submitted with the reply papers, directly responding to this argument, which the Court will not find improperly submitted with the reply, and finds was not necessary to consider in any case. The Court also notes that in any event plaintiff has filed an unauthorized sur-reply addressing this new evidence, so would not have been prejudiced by any irregularity, had there been one.

The opposition also additionally argues briefly that the fees to set aside the default originally taken in this case should not be allowed, as defendant’s first attorney allowed the default to be taken. The file shows that the parties ultimately stipulated to have the default set aside. [See Stipulation to Set Aside Default and Default Judgment, filed 12/14/16]. The reply submits evidence showing that the default was entered despite an agreement between then counsel to extend time to respond to the lawsuit while amended pleadings were prepared, and the parties explored changing venue. [See Bhola Decl., para. 15; Exs. H, I]. The Court finds that under the circumstances, the fees incurred in preparation to seek a Court order setting aside the default were reasonably incurred.

RULING:

Motion of Defendant Jason K. Boutros, M.D., Inc. for an award of attorney’s fees in the amount of $155,249.50 Against Plaintiff Saint Lukes Pasadena, LLC is GRANTED. The court finds that defendant Jason K. Boutros, M.D., Inc. was a prevailing party in the action, and that the matter arose out of a written Lease Agreement between the parties which provides that the prevailing party shall be entitled to reasonable attorneys’ fees. The court finds that reasonable attorney’s fees are $125,730.75 [$155,249.50 sought], which are to be awarded to defendant Jason K. Boutros, M.D., Inc. against plaintiff Saint Lukes Pasadena, LLC.

Plaintiff’s Objections to New Evidence Offered for the First Time on Reply are OVERRULED. The Court notes the objections include objections to evidence submitted with the moving papers, which objections are also OVERRULED.

The Court notes that it has received a Plaintiff’s unauthorized Sur-Reply and Motion to Strike as well as an unauthorized Opposition to Plaintiff’s Motion to Strike Evidence, and an unauthorized Defendant’s Response to Plaintiff’s Objections. The Court does not ordinarily consider such unauthorized filings beyond the reply papers without an advance court order permitting such filings. The Court has nevertheless considered these papers in the interest of judicial economy only to avoid any claimed prejudice to the parties with respect to the submission of evidence with the reply papers. Any motion to strike is MOOT in light of the Court’s order overruling objections.

GIVEN THE RECENT CORONAVIRUS CRISIS, UNTIL FURTHER ORDERED, DEPARTMENT D WILL ALLOW APPEARANCES ONLY BY COURTCALL.

Please make such arrangements in advance if you wish to appear via CourtCall at (888) 882-6878 (or www.courtcall.com). Counsel and parties (including self-represented litigants) are not to personally appear, absent a compelling emergency reason. If none of the litigants on a matter set up a CourtCall appearance, then the Court will assume the parties are submitting on the tentative.

Case Number: EC065298    Hearing Date: November 01, 2019    Dept: NCD

tentative ruling

Calendar: 21

Case Number: EC 065298

Date: 11/1/19 Trial date: December 2, 2019

Case Name: Saint Lukes Pasadena, LLC v. Jason K. Boutros, M.D., Inc.

MOTIONS FOR SUMMARY JUDGMENT (2)

(OR, in the Alternative, Summary Adjudication)

[CCP § 437c; CRC 3.1350 et seq.]

Relief Requested:

Summary judgment in favor of defendant Jason Boutros M.D., Inc.

In the alternative, summary adjudication of issues/ each remaining cause of action

Summary judgment in favor of plaintiff Saint Lukes Pasadena, LLC

In the alternative, summary adjudication of each cause of action of the complaint

Moving Party: Defendant Jason Boutros M.D., Inc.

Plaintiff Saint Lukes Pasadena, LLC

Responding Party: Plaintiff Saint Lukes Pasadena, LLC

Defendant Jason Boutros M.D., Inc.

Causes of Action from Complaint

  1. Breach of Contract

  2. Breach of Covenant of Good Faith and Fair Dealing

  3. Declaratory Relief

    SUMMARY OF COMPLAINT:

    Plaintiff Saint Lukes Pasadena, LLC alleges that in March of 2000, plaintiff’s predecessor in interest, as the owner of a medical office building in Pasadena, entered into a Lease Agreement with defendants Jason K. Boutros, M.D., Inc., Dr. Boutros and his dbas as tenants. Plaintiff purchased the real property that contains the leased premises, and in May of 2003 Dr. Boutros acknowledged the validity of the Lease and its essential terms, and the parties attempted to negotiate the terms of a new lease, which ultimately proved unsuccessful. Plaintiff alleges that defendants have fallen significantly behind on rent payments under the Lease, and owe plaintiff base rent under the Lease, CAM charges and holdover rent. The complaint alleges causes of action for breach of contract, breach of covenant of good faith and fair dealing, and declaratory relief.

    Defendant has filed a cross-complaint against plaintiff as well as against cross-defendant California Institute of Technology, which is alleged to have purchased the subject premises prior to plaintiff’s purchase. The cross-complaint alleges causes of action for implied indemnity, declaratory relief, and contribution.

    TENTATIVE RULING:

    CCP 437c(g): Material facts which do or do not create a triable issue of controversy:

    Motion of Defendant Jason Boutros M.D., Inc. for Summary Judgment, or, in the Alternative, Summary Adjudication is GRANTED.

    Defendant Boutros has established that plaintiff will be unable to establish an essential element of its causes of action, in effect, that the contract upon which plaintiff relies remains enforceable between the parties, and that defendant has established the existence of affirmative defenses to plaintiff’s claims.

    Specifically, the language of the Lease Agreement of March 27, 2000 expressly states that it is to expire after a term of five years. [UMF No. 1, and evidence cited; Undisputed; Ex. A. ¶ d]. There is no dispute here that the Lease Agreement expired according to its own terms after five years, and that the parties did not enter into a renewal of the Lease Agreement or a new agreement for the lease of the premises. [UMF Nos. 3-5, 12, and evidence cited; Boutros Decl. ¶ 7; Ex A. ¶ d; ]. The Lease itself does not include a provision by which the Lease could be modified or amended. [See Ex. A].

    Accordingly, after the expiration of the Lease Agreement, the Lease expired on its own terms, and defendant did not become a holdover tenant, but became a month-to-month tenant pursuant to a periodic tenancy, which could be terminated at the end of a period by notice. A tenancy at sufferance, which is what plaintiff argues was created here, results when a tenant holds over after expiration of a fixed term without the consent of the landlord. See Civil Code § 3335 (willful holding over actionable after termination of an estate, “without the consent of the party immediately entitled after such termination…”); see also Miller & Starr, § 19:32, p. 91. The possession is accordingly considered wrongful, and the landlord may elect to treat the possession as an unlawful detainer and evict the tenant. Id. However, where the landlord elects to accept rent from the tenant, the possession is not wrongful or without consent, but such election converts the tenancy to a periodic tenancy. See Civil Code § 1945 (“If a lessee of real property remains in possession thereof after the expiration of the hiring, and the lessee accepts rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding one month when the rent is payable monthly…”); Peter Kiewit & Sons’ Co. v. Richmond Redevelopment Agency (1986) 178 Cal.App.3d 435, 445 (“If…the owner accepts rent from a tenant at sufferance he accepts the tenant’s possession as rightful and the tenancy is converted into a periodic one.”). The tenancy here at all times was continued with the consent of the lessor. This situation resulted in the creation of a periodic tenancy. Defendant accordingly continued to occupy the premises on a month-to- month tenancy, not as a holdover tenant. Defendant has established it was never in an unlawful detainer position, but paid all that was owed to plaintiff according to the month-to-month tenancy by which it lawfully occupied the premises.

Accordingly, because the Lease Agreement expired by its own terms, paragraph 34 of the Lease Agreement was never invoked. The tenancy remained a month-to-month tenancy, which was terminated only after the giving of thirty days’ notice to terminate. The moving papers establish that the agreed upon monthly rent under the month-to-month tenancy was timely tendered on June 1, 2016, and defendant owes no further rent under the month-to-month tenancy. [UMF Nos. 15, 35, and evidence cited].

The court also finds that even if the Lease remains in place, the Lease provision upon which plaintiff relies, paragraph 34, was never invoked, as defendant was never in an unlawful detainer status, or treated as such by plaintiff. Specifically, that paragraph provides:

“In the event Tenant, or any party claiming under Tenant, retains possession of the Premises after the expiration or earlier termination of this Lease, such possession shall be an unlawful detainer, and not tenancy or interest shall result from such possession. Such occupants shall be subject to immediate eviction and removal, and Landlord, in addition to all other remedies available to it hereunder, shall have the right to receive as liquidated damages for all the time Tenant shall so retain possession of the Premises or any part thereof, an amount equal to twice the Base Rent specified in this Lease, as applied to such period, together with all other payments required hereunder as Additional Rent, provided that Tenant shall nonetheless be a tenant at sufferance.”

[Ex. A ¶ 34].

Again, defendant did not occupy the premises without the consent of the landlord, so no holdover tenancy was created. The court further finds that the Estoppel Certificate relied upon by plaintiff, which states the lease is in effect, is irrelevant, as the Lease does not include a provision for amendment or modification. [See Ex. A].

The court further finds that defendant has established that plaintiff and its predecessors waived the entitlement to enforce any holdover provision in the Lease, and its rights to enforce the terms of the Lease, including the double rent provision and the collection of CAM charges. Defendant has established that after the five year lease was over, defendant remained on the property with the consent of the owner and continued to pay rent at the same rate as before, and no eviction was ever commenced by plaintiff or its predecessor. [UMF Nos. 15, 16, and evidence cited].

Defendant has also established that any attempt by plaintiff by this action to collect double rent is improper as the clause is an improper liquidated damages clause which constitutes a penalty, as bearing no reasonable relationship to the range of actual damages the parties could have anticipated would flow from a breach. Specifically, defendant established that defendant determined in 2013, during lease negotiations with plaintiff, that the fair market value of prime office medical space in the area was $2.25 per square foot, resulting in a monthly rent of $7,020 for the premises, which is what the parties agreed upon as the interim amount to be paid pending negotiation of a new lease. [UMF Nos. 19-21, and evidence cited]. It would appear that a liquidated damage clause which simply doubles the rent has no relationship to the actual damages it would have been anticipated to have flowed from a breach. The authorities relied upon by defendant question the validity of doubling of rent in a commercial lease setting. See Harbor Island Holdings v. Kim (2003) 107 Cal.App.4th 790, 796-799. Defendant has in fact submitted deposition testimony from a representative of plaintiff referring to the double rent provision as a “penalty” against defendant. [UMF No. 23, and evidence cited]. This is sufficient to shift the burden to plaintiff to establish that the liquidated damage clause bears a reasonable relationship to the range of actual damages the parties could have anticipated would flow from a breach. Plaintiff in opposition has merely argues that there is no evidentiary support for the conclusion that the holdover provision has no bearing to actual damages. However, defendant’s evidence includes figures of fair market rental value based on consultation with a local commercial leasing agent at NAI Capital, which value was accepted by plaintiff. [See Ex. H]. Plaintiff does not submit any further evidence on this issue, but states broadly that “Section 34 of the Lease Agreement speaks for itself.” [See Response to UMF No. 22, and evidence cited]. This assertion alone is insufficient to raise triable issues of material fact on this issue.

The moving papers also establish that even if the Lease survived its termination by its own terms, the Lease was subsequently terminated by the 2010 foreclosure sale. Specifically, defendant establishes that in 2010, a trust deed which had been recorded against the property was foreclosed upon. [UMF No. 24, and evidence cited, Undisputed]. There is no dispute that there was never any recordation of the Lease Agreement or any Memorandum of Lease by defendant or the plaintiff’s predecessor in interest. [UMF No. 25, and evidence cited, Undisputed]. See Hohn v. Riverside County Flood Control and Water Conservation Dist. (1964) 228 Cal. App. 2d 605, 613; Dover Mobile Estates v. Fiber Form Products, Inc. (1990) 220 Cal.App.3d 1494, 1497-1498 (“we conclude that the trustee’s sale extinguished the lease so that Fiber Form became a month-to-month tenant, thereby allowing Fiber Form to terminate on 30 days’ notice.”).

Defendant has accordingly established on several theories that plaintiff will be unable to establish its claim for breach of contract. Accordingly, summary judgment is also appropriate as to the causes of action for breach of covenant of good faith and fair dealing with respect to the subject Lease Agreement, as well as the cause of action for declaratory relief, which seeks to establish the same rights and obligations between the parties based on the leasing relationship. See, Careau & Co. v. Security Pacific Business Credit, Inc. (2nd Dist. 1990) 222 Cal.App.3d 1371, 1395; UMF Nos. 36, 37, 39, and evidence cited.

Defendant to submit an appropriate form of judgment.

Plaintiff Saint Lukes Pasadena, LLC Motion for Summary Judgment, or, In the Alternative, Motion for Summary Adjudication is MOOT in light of the ruling on defendant’s motion, above.