This case was last updated from Los Angeles County Superior Courts on 10/22/2020 at 04:19:59 (UTC).

GEP ADMINISTRATIVE SERVICES INC VS BURBANK TENANT PLAZA LLC

Case Summary

On 05/04/2018 GEP ADMINISTRATIVE SERVICES INC filed a Contract - Other Contract lawsuit against BURBANK TENANT PLAZA LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are CAROLYN B. KUHL, ERNEST HIROSHIGE, ELIZABETH ALLEN WHITE, ERNEST M. HIROSHIGE and LAURA A. SEIGLE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5057

  • Filing Date:

    05/04/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

CAROLYN B. KUHL

ERNEST HIROSHIGE

ELIZABETH ALLEN WHITE

ERNEST M. HIROSHIGE

LAURA A. SEIGLE

 

Party Details

Plaintiffs, Petitioners, Cross Defendants and Not Classified By Court

GEP ADMINISTRATIVE SERVICES INC.

ENTERTAINMENT PARTNERS LLC

ENTERTAINMENT PARTNERS (DBA)

ENTERTAINMENT PARTNERS DBA

GEP ADMINISTRATIVE SERVICES INC. DBA ENTERTAINMENT PARTNERS A DELAWARE CORPORATION

GEP ADMINISTRATIVE SERVICES INC. DBA ENTERTAINMENT PARTNERS DBA ENTERTAINMENT PARTNERS LLC

Defendants, Respondents and Cross Plaintiffs

DOES 1 TO 10

BURBANK TENANT PLAZA LLC

ENTERTAINMENT PARTNERS

BURBANK PLAZA OWNER LLC

BURBANK PLAZA OWNER LLC FKA BURBANK PLAZA TENANT LLC A DELAWARE LIMITED LIABILITY COMPANY

Attorney/Law Firm Details

Defendant, Plaintiff and Cross Plaintiff Attorneys

JOHNSON EDWARD

LABAT GERMAIN D.

LABAT GERMAIN D

JOHNSON EDWARD E.

Plaintiff, Petitioner and Cross Defendant Attorneys

LABAT GERMAIN D.

LABAT GERMAIN D

Defendant, Respondent and Cross Plaintiff Attorneys

EDWARD JOHNSON

JOHNSON EDWARD

JOHNSON EDWARD E.

Defendant and Respondent Attorney

EDWARD JOHNSON

 

Court Documents

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE (ALICIA RENEE DESMOND, CSR #13037)

8/10/2020: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE (ALICIA RENEE DESMOND, CSR #13037)

Notice - NOTICE OF CHANGE OF HEARING TIME OF PLAINTIFFS MOTION FOR SUMMARY ADJUDICATION

7/29/2020: Notice - NOTICE OF CHANGE OF HEARING TIME OF PLAINTIFFS MOTION FOR SUMMARY ADJUDICATION

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT BY PLAINTIFF/CROSS-DEF...)

8/10/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT BY PLAINTIFF/CROSS-DEF...)

Notice - NOTICE OF ORDER DENYING MOTION FOR RECONSIDERATION

7/22/2020: Notice - NOTICE OF ORDER DENYING MOTION FOR RECONSIDERATION

Notice - NOTICE OF CHANGE OF HEARING TIME OF PLAINTIFFS MOTION FOR RECONSIDERATION

7/7/2020: Notice - NOTICE OF CHANGE OF HEARING TIME OF PLAINTIFFS MOTION FOR RECONSIDERATION

Declaration - DECLARATION OF DARREN SEIDEL

2/13/2020: Declaration - DECLARATION OF DARREN SEIDEL

Separate Statement

2/13/2020: Separate Statement

Notice of Lodging - NOTICE OF LODGING MOTION FOR SUMMARY ADJUDICATION

2/13/2020: Notice of Lodging - NOTICE OF LODGING MOTION FOR SUMMARY ADJUDICATION

Order - RULING: MOTION TO COMPEL DEPOSITION AND PRODUCTION OF RECORDS

11/21/2019: Order - RULING: MOTION TO COMPEL DEPOSITION AND PRODUCTION OF RECORDS

Minute Order - MINUTE ORDER (HEARING ON DEFENDANT AND CROSS-COMPLAINANT BURBANK PLAZA OWNE...)

12/2/2019: Minute Order - MINUTE ORDER (HEARING ON DEFENDANT AND CROSS-COMPLAINANT BURBANK PLAZA OWNE...)

Declaration - DECLARATION OF MARK GOLDSTEIN IN SUPPORT OF PLAINTIFFS' OPPOSITION TO BURBANK PLAZA OWNER LLC'S MOTION FOR SUMMARY JUDGMENT

11/18/2019: Declaration - DECLARATION OF MARK GOLDSTEIN IN SUPPORT OF PLAINTIFFS' OPPOSITION TO BURBANK PLAZA OWNER LLC'S MOTION FOR SUMMARY JUDGMENT

Ex Parte Application - EX PARTE APPLICATION UNDER CCP 437C(H) TO CONTINUE HEARING ON BURBANK PLAZA OWNERS MOTION FOR SUMMARY JUDGMENT AND TO CONSOLIDATE WITH PLAINTIFFS HEARING DATE ON ITS SEPARATE MO

11/4/2019: Ex Parte Application - EX PARTE APPLICATION UNDER CCP 437C(H) TO CONTINUE HEARING ON BURBANK PLAZA OWNERS MOTION FOR SUMMARY JUDGMENT AND TO CONSOLIDATE WITH PLAINTIFFS HEARING DATE ON ITS SEPARATE MO

Notice - NOTICE OF ERRATA RE: BURBANK PLAZA OWNER LLC'S SEPARATE STATEMENT IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL BURBANK PLAZA OWNER LLC TO PRODUCE ITS CUSTODIAN OF RECORDS FOR ORAL DEPOSITION

11/7/2019: Notice - NOTICE OF ERRATA RE: BURBANK PLAZA OWNER LLC'S SEPARATE STATEMENT IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL BURBANK PLAZA OWNER LLC TO PRODUCE ITS CUSTODIAN OF RECORDS FOR ORAL DEPOSITION

Substitution of Attorney

4/8/2019: Substitution of Attorney

Answer

10/22/2018: Answer

Memorandum of Points & Authorities - Memorandum of Points & Authorities in Support of Entertainment Partners' Ex Parte Application for Temporary Restraining Order and Order to Show Cause re: Prelimina

11/20/2018: Memorandum of Points & Authorities - Memorandum of Points & Authorities in Support of Entertainment Partners' Ex Parte Application for Temporary Restraining Order and Order to Show Cause re: Prelimina

DEFENDANT AND CROSS-COMPLAINANT BURBANK PLAZA OWNER LLC'S OPPOSITION TO ENTERTAINMENT PARTNERS' DEMURRER TO CROSS-COMPLAINT

9/14/2018: DEFENDANT AND CROSS-COMPLAINANT BURBANK PLAZA OWNER LLC'S OPPOSITION TO ENTERTAINMENT PARTNERS' DEMURRER TO CROSS-COMPLAINT

Minute Order -

6/10/2018: Minute Order -

177 More Documents Available

 

Docket Entries

  • 04/05/2021
  • Hearing04/05/2021 at 10:00 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 03/22/2021
  • Hearing03/22/2021 at 08:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 10/19/2020
  • Docketat 09:30 AM in Department 48, Laura A. Seigle, Presiding; Jury Trial ((estimate10 days)) - Not Held - Continued - Court's Motion

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  • 10/14/2020
  • Docketat 08:30 AM in Department 48, Laura A. Seigle, Presiding; Final Status Conference - Not Held - Continued - Court's Motion

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  • 08/31/2020
  • DocketNotice (of order denying motion for summary adjudication); Filed by Burbank Plaza Owner, LLC (Defendant)

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  • 08/10/2020
  • Docketat 2:00 PM in Department 48, Laura A. Seigle, Presiding; Hearing on Motion for Summary Judgment (by Plaintiff/Cross-Deft GEP Administrative Services, Inc. d/b/a Entertainment Partners and Entertainment Partners LLC as to Burbank Plaza Owner LLC [110180416252]) - Not Held - Rescheduled by Court

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  • 08/10/2020
  • Docketat 2:00 PM in Department 48, Laura A. Seigle, Presiding; Hearing on Motion for Reconsideration (by Plaintiff as to Court?s January 6, 2020 Ruling Granting Defendants? Motion For Summary Adjudication of Plaintiffs? Sixth Cause Of Action and Denied Plaintiffs? Request For A Continuance Under CCP437C(H) [708995096997]) - Not Held - Advanced and Continued - by Court

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  • 08/10/2020
  • Docketat 1:30 PM in Department 48, Laura A. Seigle, Presiding; Hearing on Motion for Summary Judgment (by Plaintiff/Cross-Deft GEP Administrative Services, Inc. d/b/a Entertainment Partners and Entertainment Partners LLC as to Burbank Plaza Owner LLC [110180416252]) - Held - Motion Denied

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  • 08/10/2020
  • DocketMinute Order ( (Hearing on Motion for Summary Judgment by Plaintiff/Cross-Def...)); Filed by Clerk

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  • 08/10/2020
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore ((Alicia Renee Desmond, CSR #13037)); Filed by Burbank Plaza Owner, LLC (Cross-Complainant); Burbank Plaza Owner, LLC (Cross-Complainant)

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265 More Docket Entries
  • 06/10/2018
  • DocketMinute order entered: 2018-06-10 00:00:00; Filed by Clerk

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  • 06/10/2018
  • DocketMinute Order

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  • 06/06/2018
  • DocketProof-Service/Summons; Filed by GEP Administrative Services, Inc. (Plaintiff)

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  • 06/06/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 05/29/2018
  • DocketAMENDED SUMMONS

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  • 05/29/2018
  • DocketSummons; Filed by GEP Administrative Services, Inc. (Plaintiff)

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  • 05/24/2018
  • DocketAmendment to Complaint; Filed by GEP Administrative Services, Inc. (Plaintiff)

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  • 05/24/2018
  • DocketAmendment to Complaint (Fictitious Name)

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  • 05/04/2018
  • DocketComplaint; Filed by null

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  • 05/04/2018
  • DocketComplaint

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Tentative Rulings

Case Number: BC705057    Hearing Date: August 10, 2020    Dept: 48

[TENTATIVE] ORDER RE: PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION

On November 20, 2018, Plaintiffs GEP Administrative Services, Inc. and Entertainment Partners, LLC (collectively, “Plaintiffs”) filed a first amended complaint (“FAC”) against Burbank Plaza Owner LLC (“Defendant”) arising from Plaintiffs’ lease of space in Defendant’s building. On February 13, 2020, Plaintiffs moved for summary adjudication of the first, second, and sixth causes of action.

EVIDENTIARY OBJECTIONS

The Court does not rule on Defendant’s Objections because the Court did not rely on the evidence that is the subject of the objections.

FACTUAL BACKGROUND

Plaintiffs contend that Defendant intentionally misrepresented the rentable square footage (“RSF”) in the parties’ lease in order to secure favorable financing on the property, which resulted in Plaintiffs paying increased rent.

On or around March 3, 2016, Plaintiffs and Defendant entered into a letter of intent regarding Plaintiffs’ potential leasing of space in Defendant’s building. (Undisputed Material Facts “UMF” 1.) Over the next five months, Plaintiffs and Defendant engaged in extensive discussions and exchanged several draft leases. (UMF 2.) The rentable square footage figures in the first draft of the lease reflected the rentable square footage figures in the existing tenants’ leases. (UMF 14.) During the negotiations, Plaintiffs believed the RSF numbers in the drafts were based on actual measurements. (UMF 4-10.) Defendant never told them the RSF figures were a contract term subject to negotiation and were not based on actual measurements. (Ibid.)

Plaintiffs and Defendant executed the lease on September 27, 2016. (UMF 11.) The executed lease stated that the building’s RSF was 162,551 and Plaintiff’s RSF was 132,727. (Lease at p. iv.)

In July 2017, Plaintiffs retained Stevenson Systems to measure the building. They calculated that the building’s RSF was 154,488.63 and Plaintiff’s RSF was 125,156.40. (UMF 12.) Plaintiffs hired PACE Compumetrics to measure the building, and they calculated that the RSF of the building was 154,287.50 and Plaintiffs’ RSF was 124,731.90. (UMF 13.) According to the Certificate of Occupancy, issued by the City of Burbank, the gross wall-to-wall floor space for the building is 158,939 square feet. (UMF 16.)

LEGAL STANDARD

For each claim in the complaint, a plaintiff moving for summary adjudication must satisfy the initial burden of proof by proving each element of the cause of action. (Code Civ. Proc., § 437c, subd. (p)(1).) Then the burden shifts to the defendant to show that a triable issue of material fact exists as to the cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.)

DISCUSSION

First and Second Causes of Action – Fraudulent and Negligent Misrepresentation

Plaintiffs’ first cause of action alleges that Defendant made several false representations related to the rentable square footage. To prove a cause of action for fraudulent misrepresentation, a plaintiff must show “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.)

A cause of action for negligent misrepresentation requires assertion of an untrue fact that is believed by the defendant to be true, lack of reasonable ground for the belief, defendant’s intent to induce plaintiff’s reliance upon the representation, plaintiff’s justifiable reliance upon the representation, and resulting damage. (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 781; Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.)

Plaintiffs contend the lease falsely stated that the RSF of the building was 162,551 and the RSF of Plaintiffs’ space was 132,727. (Motion at p. 11; Seidel Decl., Ex. J at p. iv.) Plaintiffs contend that Defendant lacked an honest belief that the RSF figures in the lease were true because the building’s Certificate of Occupancy and Defendant’s asset summary page of a Financing Offering Memorandum sent to lenders both state that the building’s square footage is 158,939. (Motion at p. 12; UMF 25.)

Additionally, Plaintiffs contend that Defendant’s concurrent attempts to secure financing illustrates that Defendant intended to defraud Plaintiffs because Defendant was able to obtain an additional $1 million and better pricing by inflating the square footage in the lease. (Motion at p. 13.) To prove Defendant’s intent to defraud Plaintiffs, Plaintiffs point to Defendant’s admission in a deposition that Defendant did not like the loan terms being offered, that the loan to value test for the building was too high, and that Defendant would obtain better loan pricing if the value of the building increased. (UMF 26-28)

Plaintiffs also submit an expert declaration from Kelly L. Melle, a partner at an economics, statistics, forensic accounting, and economic damages consulting firm. (See UMF 31-32.) Melle calculated that the alleged overstated square footage increased the value of Defendant’s building by approximately $3.3 million. (Melle Decl. ¶ 6 & Ex. 3.) He opines that the increase in value provided by the alleged overstated square footage positively influenced the Defendants’ financing terms. (Id. at ¶¶ 11-13.)

Assuming this evidence is sufficient to establish a prima facie case of intent to defraud, Defendant has submitted sufficient evidence to establish a disputed material fact. Defendant submits the declaration of Teresa Tsai explaining that when Defendant was exploring financing, it became clear that the loan terms would not be attractive without the certainty of a signed lease for the space Plaintiffs intended to occupy. (Defendant’s Undisputed Additional Material Facts (“AMF”) 33-34.) Therefore, Defendant decided to postpone the financing until after the lease was signed. (AMF 35.) A jury could conclude from Defendant’s evidence that Plaintiffs were not intending to deceive Defendant in order to increase the value of the building, but rather were waiting to reengage in loan discussions until after Plaintiffs had committed to leasing the bulk of the building because a signed lease would itself increase the value of the building.

Because the evidence could allow either inference, the Court cannot conclude as a matter of law that Defendant intended to fraudulently deceive Plaintiffs.

The last element of these two causes of action is resulting damages. Plaintiffs argue they were damaged “in the amount of as much as $7.5 million (through the term of the lease and the renewal periods).” (Motion, p. 14.) They cite to the Melle Declaration, who states “Plaintiff’s out of pocket rent costs are overstated by as much as $7.5 million (through the term of the lease and the renewal periods).” (Melle Decl., ¶ 14.) In a footnote, he gives the precise number of $7,457,054. (Id. at n.12.) The precise number is based on Exhibit 4 to the Melle Declaration, which shows Melle’s calculations of the overstated rent payments through 2039, assuming two renewals periods and assuming an annual rent increase of 3% in the renewal terms.

The $7,457,054 number is based on unproven assumptions and speculation about what might occur many years in the future. The two main assumptions are that Plaintiffs will renew the lease twice through 2039, and that the parties will agree to a 3% annual rent increase. The lease states the tenant has the right, but not the obligation, to extend the terms of the lease twice for a total of ten years, so long as various conditions are satisfied. The lease does not state that the rent in the renewal terms will be at set a 3% annual increase. Instead, the lease sets forth procedures for the parties to attempt to agree to the rental rate in the renewal terms. (Lease at pp. 71-72.)

The Court cannot conclude as a matter of law that Plaintiffs will satisfy the conditions to have the right to renew twice, that Plaintiffs will in fact renew the lease twice in the future, that Plaintiffs will continue to rent the space through 2039, and that the parties will agree in the future to the rent rates assumed by Melle in his calculations. Therefore, Plaintiffs have not established the amount of resulting damages for these two causes of action. For this reason, Plaintiffs have not satisfied their initial burden.

Sixth Cause of Action – Breach of Contract

The sixth cause of action alleges breach of contract due to Defendant’s failure to pay tenant improvement reimbursements. On January 6, 2020, the Court granted Defendant’s motion for summary adjudication on this claim. On July 20, 2020, the Court denied Plaintiffs’ motion for reconsideration. Therefore, this cause of action has already been adjudicated.

Accordingly, the motion for summary adjudication is DENIED.

APPLICATION TO SEAL

On February 13, 2020, Plaintiffs filed an application to seal Exhibits A, B, and E through P to the Declaration of Germain D. Labat and certain references to those exhibits in the Separate Statement and Memorandum of Points and Authorities. On March 2, 2020, Plaintiffs filed an application to seal Exhibits 1 and 3 to Plaintiff’s Notice of Errata. Defendant did not file anything in connection with the applications.

Plaintiffs’ applications state that Defendant produced Exhibits E through P and designated them confidential under a protective order, and that the depositions in Exhibits A, B, and 3 were designated as confidential. Exhibit 1 is a copy of Plaintiffs’ Separate Statement with descriptive references to the exhibits related to the February 13, 2020 sealing application.

However, neither Plaintiffs nor Defendant made any showing about the factors for sealing set out in California Rule of Court, rule 2.500(d)(3). Therefore, the Court has no evidence upon which to conclude that those factors have been satisfied. The applications to seal are DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC705057    Hearing Date: July 14, 2020    Dept: 48

[TENTATIVE] ORDER RE: MOTION FOR RECONSIDERATION; APPLICATION TO SEAL

On November 20, 2018, Plaintiff GEP Administrative Services, Inc. (“Plaintiff”) filed its first amended complaint (“FAC”) against Defendant Burbank Plaza Owner LLC, formerly known as Burbank Plaza Tenant LLC (“Defendant”) arising from a lease between the parties. On September 18, 2019, Defendant moved for summary judgment, or alternatively for summary adjudication. On January 6, 2020, the Court denied summary judgment but granted summary adjudication on some causes of action (“Order”).

Relevant here, the Court granted summary adjudication on Plaintiff’s sixth cause of action for breach of contract based on a failure to pay Tenant Improvement reimbursement. (Order at pp. 6-7.) The lease between the parties provided that “all notices[ and] requests . . . to the other party under this Lease shall only be deemed to have been given, made and delivered, when made or given in writing and deposited in the United States mail . . . and addressed to the parties as follows: . . . if to [Defendant], at the address(es) specified for [Defendant] . . . .” Plaintiff delivered its reimbursement request to Defendant’s property manager and did not deliver a copy to the address listed in the lease provision for giving notice to Defendant. Plaintiff did not dispute this fact. Also undisputed were the facts that Plaintiff had previously delivered an earlier request for reimbursement to the property manager, and Defendant had paid that request. The Court granted summary adjudication on the ground that Plaintiff had not raised a triable issue of material fact as to whether it complied with the notice provision. The Court rejected Plaintiff’s argument that Defendant had waived the lease’s notice requirement by paying the previous request delivered to the property manager.

On February 5, 2020, Plaintiff filed a motion for reconsideration of the Court’s order on the sixth cause of action for breach of contract based on failure to pay the reimbursement. Alternatively, Plaintiff seeks reconsideration of the Court’s denial of its request to continue the hearing on Defendant’s motion for summary judgment.

LEGAL STANDARD

A party moving for reconsideration of an order must present new facts, circumstances, or law in order to grant a motion for reconsideration. (Code Civ. Proc., § 1008, subd. (a); see also Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.) The moving party shall state by affidavit what application was made before, what order or decisions were made, and what new or different facts or circumstances are claimed to be shown. (Code Civ. Proc., § 1008, subd .(a).) “[T]he party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.) The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)

When the judge who decided the original motion is no longer available, a different judge may decide the motion for reconsideration. (Marriage of Oliverez (2015) 238 Cal.App.4th 1242, 1248 (“Oliverez”.) “‘For one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court.’ [Citation.] ” (Ibid.) Thus, “‘[m]ere disagreement . . . with the prior trial judge’s ruling . . . is not enough to overturn that ruling.’ [Citation.]” (Id. at p. 1249.) Here, the judge who decided the summary judgment motion is no longer available.

DISCUSSION

Plaintiff moves for reconsideration of the grant of summary adjudication on the sixth cause of action on the grounds of new facts. Plaintiff’s counsel declares that in September 2019, Plaintiff served a Notice of Deposition of Person Most Knowledgeable and a Notice of Deposition and document request to Landlord’s Custodian of Records for depositions in October 2019. (Labat Decl. ¶ 5.) The parties met and conferred about deposition dates and document production, with the result that Plaintiff moved to compel the production of documents on October 22, 2019. (Id. at ¶¶ 6-7.) The Court granted the motion to compel, and Defendant produced almost 7,000 pages of documents on December 23, 2019. (Id. at ¶¶ 8, 10.) Defendant allowed Plaintiff to review the documents before taking the depositions. (Id. ¶ 10.) Plaintiff’s review of these documents was not complete before the January 6, 2020 hearing on Defendant’s motion for summary judgment, and the depositions had not occurred. (Id. at ¶ 12.)

One of the produced documents was a copy of the property management agreement between Defendant and its property manager. (Id. at ¶ 11.) Plaintiff deposed Defendant’s representative on January 22, 2020. (Id. at ¶ 3 & Ex. B; Motion at p. 6.) According to Plaintiff, the property management agreement and deposition testimony constitute new facts for reconsideration of the Court’s Order. (Motion at pp. 3-4.)

Plaintiff contends that the property management agreement shows that delivering the notice to the property manager was equivalent to delivering it to Defendant because the property management agreement required the property manager to supervise tenant improvements and other construction projects. (Labat Decl., Ex. G; see Opposition at p. 9 fn. 2.) Plaintiff cites to University of Southern Cal. v. Weiss (1962) 208 Cal.App.2d 759 (Weiss) to support this argument. In that case, the property was leased to several co-tenants who were all parties to the lease. The court held that notice to one of the co-tenants was notice to all of the co-tenants because the co-tenants were like “copartners,” and a notice to one copartner binds the partnership, or they were like tenants holding the properly jointly or in common such that notice to one was notice to all. (Weiss, supra, 208 Cal.App.2d at pp. 769-770.) However partners and joint tenants have legal obligations to each other that two contracting parties do not have simply by virtue of being parties to a contract. The fact that Defendant and its property manager had entered a contract does not alone make them akin to partners or joint tenants like in Weiss. Otherwise every contract would create duties beyond those set forth in the contract. And Plaintiff does not point to any term in the property management agreement stating that notice to the manager is deemed notice to Plaintiff.

Moreover, the fact that Defendant had hired a property manager is not a new fact. Plaintiff sent the first and second reimbursement requests to the property manager, thereby indicating that Plaintiff knew about the property manager and knew the property manager had some kind of responsibility for managing the property and tenants.

Plaintiff also contends that admissions by Defendant’s representative during her deposition establish a course of performance that waives, modifies, or aids in the interpretation of the lease’s notice provision. (Motion at p. 13.) Specifically, Plaintiff argues that Defendant’s representative testified that Defendant accepted the first reimbursement request delivered to the property manager and did not tell Plaintiff that it was invalid, and that Defendant received the second request by January 2018 and did not tell Plaintiff that it had been sent to the wrong address and was therefore invalid. But these are not new facts. Plaintiff raised Defendant’s prior acceptance of the first reimbursement request delivered to the property manager in connection with the original motion. (Opposition to Motion for Summary Judgment at pp. 7, 19-20.) In opposition to the original motion, Plaintiff stated Defendant did not raise any questions about the first request being sent to the property manager. (Seidel Decl. in support of Opposition to Motion for Summary Judgment ¶ 14.) It was undisputed that Defendant received the second request. (Id. at p. 7.) The fact that Defendant did not complain to Plaintiff about the second request being sent to the wrong address is not a fact that Plaintiff first learned in the deposition of Defendant’s representative. As the recipient of any complaint or objection to the delivery method, Plaintiff knew that Defendant did not complain or object to Plaintiff. In connection with its opposition to the summary judgment motion, Plaintiff could have submitted a declaration stating Plaintiff never received any such complaint or objection to the second request.

In the alternative, Plaintiff asks the Court to reconsider its denial of a continuance of the hearing on the motion for summary judgment. (Motion at p. 14.) Plaintiff’s request for a continuance contended that Defendant was withholding documents related to square footage numbers and was openly hostile to the discovery process. (Opposition to Motion for Summary Judgment at p. 21.) The Court denied Plaintiff’s request because the evidence that Plaintiff sought went to issues on which the Court denied summary adjudication. (Order at p. 13.) Plaintiff’s new arguments do not support reconsideration of that ruling.

While the current judge may have reached a different decision in deciding the original summary judgment motion, disagreement with the prior trial judge’s analysis and ruling is not grounds to grant a motion for reconsideration. (Oliverez, supra, 238 Cal.App.4th at p. 1249.)

Accordingly, the motion for reconsideration is DENIED.

APPLICATION TO SEAL

On February 5, 2020, Plaintiff filed an application to seal Exhibits B and G and certain references to those exhibits in the motion for reconsideration. Defendant did not file anything in connection with the application.

Plaintiff’s application states that Defendant produced Exhibit G as confidential under a protective order and that the deposition in Exhibit B was designated as confidential. However, neither Plaintiff nor Defendant made any showing about the factors for sealing set out in California Rule of Court, rule 2.500(d)(3). Therefore, the Court has no evidence upon which to conclude that those factors have been satisfied. The application to seal is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC705057    Hearing Date: January 06, 2020    Dept: 48

(1) & (2) APPLICATIONS TO SEAL (x2)

(3) MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION

MOVING PARTY: (1) Plaintiff/Cross-Defendants GEP Administrative Services, Inc., d/b/a Entertainment Partners and Entertainment Partners LLC;

(2) Defendant/Cross-Complainant Burbank Plaza Owner LLC

(3) Defendant/Cross-Complainant Burbank Plaza Owner LLC

RESPONDING PARTY(S): (1) No opposition;

(2) No opposition;

(3) Plaintiff/Cross-Defendants GEP Administrative Services, Inc., d/b/a Entertainment Partners and Entertainment Partners LLC

PROOF OF SERVICE:

“Rentable Square Footage” or “RSF,” as used in the Lease and consistent with industry practice for commercial office leases, is the basis upon which the rental payments due from the tenant are calculated. It is not the same as the “actual” measurable number of square feet in a space, which is typically referred to in the industry as the “usable square footage” or “USF”. The RSF of a commercial office space is always greater than the USF, because the RSF takes into account that the tenant will use, and should bear some share of the expenses relating to, the common areas of the building, including areas that contain building systems maintained for the benefit of all tenants. There is no single, “accurate” RSF of any building or space. The RSF of a space in any given office lease may be determined in a variety of ways— for example, it may reflect historical RSF figures used in leases with prior tenants for the same premises, market considerations, or reference one of various standards, but it is always the product of negotiation and agreement between the parties to the lease. In short, the RSF (unlike USF) in a commercial office lease is not a concrete number— it is a negotiated term, stipulated to or otherwise determined on whatever basis the parties agree.

Defendant cites the article Dennis L. Greenwald, The Practical Real Estate Lawyer, Prac. Real Est. Law., July 2000 at 9, 10 (Ps & As, Page 14:11-15), but does not even submit this article. As such, the Greenwald article does not support Defendant’s position as to the calculation of RSF.

The only evidence presented to support Defendant’s position as to the meaning of RSF if the Declaration of Prinakya Garg—the Senior Vice President of Defendant Burbank Plaza Owner LLC. Garg stating:

In the commercial real estate industry, Rentable Square Footage, or RSF, is not the same as the “actual” measurable number of square feet in a given space, which is typically referred to as the “usable square footage,” or USF. Because RSF is not a concrete number susceptible of physical measurement, it is a negotiated term in a commercial office lease.

The Court finds that the Garg Declaration fails to provide a reasoned explanation as to why the RSF is not a concrete number susceptible of physical measurement.

[A]n opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment. As the court observed in Griffith v. County of Los Angeles, supra, 267 Cal. App. 2d 837, an expert opinion is worth no more than the reasons upon which it rests.

Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524.

Accordingly, Defendant has not demonstrated that the RSF is not susceptible to being misrepresented as a statement of fact.

Nor has Defendant demonstrated that Plaintiff did not justifiably rely on an alleged misrepresentation. The fact that the Lease provided “TENANT TO SATISFY ITSELF RE: RENTABLE AREA PRIOR TO LEASE EXECUTION” (UF No. 6; Garg Decl., ¶ 8; Exh. C at 193-194) and EP agreed that EP was “[a]ssuming the obligation to measure the rentable area of the Premises” (Garg Decl., ¶ 9) does not necessary insulate Defendant from liability for fraud. It is a factor for the jury to consider in deciding whether Plaintiff reasonably relied upon Defendant’s allege misrepresentation. McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784, 794-98.

Moreover, whether or not Defendant had an intent to defraud and had scienter are triable issues of material fact.

Defendant has not met its initial burden of demonstrating that no triable issue of material fact exists. The burden does not shift to Plaintiff to raise a triable issue of material fact.

The motion for summary adjudication as to Issue No. 1 re: the first cause of action is DENIED.

2. Issue No. 2: “Burbank Is Entitled To Summary Adjudication of the Second Cause of Action In the FAC For Negligent Misrepresentation.”

The elements of negligent misrepresentation are ‘(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.’ (Citation omitted.)” National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal. App.4th 35, 50.

For the reasons set forth re: Issue No. 1, the motion for summary adjudication as to Issue No. 2 re: the second cause of action is likewise DENIED.

3. Issue No. 3: “Burbank Is Entitled To Summary Adjudication of the Third Cause of Action In the FAC For Reformation of Contract.”

Here, one of the bases for Plaintiff’s reformation cause of action is fraud. 1AC, ¶ 112. For the reasons discussed above, Plaintiff’s fraud theory remains viable as a basis for reformation.

The motion for summary adjudication as to Issue No. 3 re: the third cause of action is DENIED.

4. Issue No. 4: “Burbank Is Entitled To Summary Adjudication of the Fifth Cause of Action in the FAC for Violation of Business and Professions Code § 17200.”

Defendant argues that, because the fraud and negligent misrepresentation causes of action fail, this claim must also fail as derivative of those claims. For the reasons discussed above, this argument is no persuasive.

The motion for summary adjudication as to Issue No. 4 re: the fifth cause of action is DENIED.

5. Issue No. 5: “Burbank Is Entitled to Summary Adjudication of EP’s Claim That Burbank Did Not Deliver the Premises to EP as Required under the Parties’ Lease, Contained within the Sixth Cause of Action in the FAC for Breach of Contract.”

This breach of contract theory is based on the allegation that Landlord breached the Lease by failing to deliver the Premises specified in the Lease, because the Lease states that the rentable area of the building and of the premises is approximately 8,000 square feet more than what was actually delivered. 1AC, ¶ 130. For the reasons discussed above, triable issues of material fact exist as to this theory.

The motion for summary adjudication as to Issue No. 5 re: the sixth cause of action is DENIED.

6. Issue No. 6: “Burbank Is Entitled to Summary Adjudication of EP’s Claim that Burbank Did Not Pay Tenant Improvement Reimbursements Required under the Parties’ Lease, Contained within the Sixth Cause of Action in the FAC for Breach of Contract.”

Where Plaintiffs plead their case by combining causes of action, the Defendant may present a summary adjudication motion that disposes of allegations which would have constituted a separate and distinct wrongful act if properly pleaded. Exxon Corp. v. Superior Court (1997) 51 Cal.App.4th 1672, 1688 n.11. Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-55.

¶ 132 alleges that Defendant Landlord breached the Lease by failing to pay the remaining reimbursements of $4,499,450.10 due and owing to Plaintiff for tenant improvements.

Article 38 of the Lease provides:

Except as otherwise expressly set forth herein, all notices, requests, consents, approvals, payments in connection with this Lease, or communications that either party desires or is required or permitted to give or make to the other party under this Lease shall only be deemed to have been given, made and delivered, when made or given in writing and deposited in the United States mail, certified or registered mail, postage prepaid, by hand-delivery, by a recognized overnight air courier service and addressed to the parties as follows: . . . if to Landlord, at the address(es) specified for Landlord in provision (aa) of the Fundamental Lease Provisions[1] or to such other address(es) as Landlord may from time to time designate in a notice to Tenant given in the manner set forth in this Article. All such notices and communications shall be deemed to have been duly given: (1) when delivered by hand, if personally delivered; or (ii) on the day of delivery if sent by a recognized overnight air courier service.

(Bold emphasis and underlining added.)

Such notice provisions in commercial leases are enforced, even when contrary to statutory unlawful detainer provisions, and even actual notice does not defeat the contractual right to receive notice in the manner prescribed. Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc. (2010) 185 Cal.App.4th 744, 750.

Plaintiff delivered its request for Tenant Improvement reimbursement to an employee of Stream Realty Partners on November 27, 2017. UF Nos. 31, 32. Burbank’s notice address is to Burbank Plaza Tenant LLC, with a copy to counsel. UF N0. 33; Lease, Article 38 and “Fundamental Lease Provisions.” Plaintiff did not deliver a request for the Tenant Improvement reimbursement to the address set forth in the notice provision in the Lease. UF No. 34.

In the opposing separate statement, Plaintiff does not dispute that the notice was not delivered to the address set forth in the notice provisions of the Lease and that the request was delivered to an employee of Stream Realty Partners. Opp. Fact Nos. 32 – 34. Plaintiff argues that Landlord previously accepted notices to be sent to its management company. Opp Fact Nos 33, 34. However, this does not mean that the Landlord waived the right to insist of compliance with the notice provision. Article 27 of the Lease provides in pertinent part:

Accordingly, because Plaintiff has not cited evidence sufficient to raise a triable issue of material fact as to whether it complied with the notice provision, Defendant’s reimbursement obligation was not triggered under the Lease because the Landlord s not deemed to have received the reimbursement request.

The motion for summary adjudication as to Issue No. 6 is GRANTED as to the sixth cause of action for breach of contract based upon a failure to pay Tenant Improvement reimbursement.

7. Issue No 7: “Burbank Is Entitled to Summary Adjudication of EP’s Claim That Burbank Breached the Right of First Offer Provision in the Parties’ Lease, Contained within the Sixth Cause of Action in the FAC for Breach of Contract.”

¶ 130 of the 1AC alleges that Landlord breached the Lease by failing to abide by Section 32.1, including by refusing to honor Entertainment Partners’ right of first offer for the Offer Space.

The Lease gives Plaintiff a limited “Right of First Offer,” (“ROFO”) under which, prior to offering available space in the Building to a new tenant, Burbank must offer the space to Plaintiff on terms Burbank is willing to accept. If Plaintiff does not accept the offer within ten days, Burbank is free to lease the space to anyone else, whenever it wants, so long as the terms are “substantially similar” being within 95% or better of the net effective rental rate) to the terms it offered Plaintiff. If Burbank subsequently wishes to lease the space on terms that are not substantially similar, it must re-offer the space to Plaintiff on such different terms. UF No. 46; Lease, Article 32, § 32.1.

In 2018, another tenant, Starbucks Corporation, chose not to exercise its renewal option to extend its lease on the space it occupies in the Building (the “Offer Space”). UF No. 48.

Burbank sent notice to Plaintiff on September 6, 2018 that it intended to market the Offer Space, along with the terms on which Burbank was willing to lease the space. Burbank later clarified that it was willing to lease the Offer Space to Plaintiff on those terms. UF No. 49.

Plaintiff declined the offer to lease the Office Space on the terms in the September 6, 2018 notice. UF No. 50.

Starbucks ultimately signed an amended lease to stay in the Offer Space. The economic terms of Starbucks’ lease are “substantially similar” to the terms in the September 6, 2018 Notice, i.e., Starbucks pays net effective rent ($3.03/PSF) which is greater than 95% of the net effective rent offered to Plaintiff ($3.07/PSF) . UF No. 51; Garg Decl. ¶ 20.

Defendant has met its initial burden of demonstrating that it complied with its obligation to give Plaintiff a ROFO. The burden shifts to Plaintiff to raise a triable issue of material fact.

In the opposing separate statement, Plaintiff does not cite evidence sufficient to raise a triable issue of material fact. Although Plaintiff disputes UF No. 51, citing the Seidel Decl., ¶ 20 and Exh. P, Plaintiff does not specify how that evidence raises a triable issue of material fact. Indeed, the Seidel Decl., ¶ 20 only states: “On September 21, 2018, Landlord wrote to EP and indicated that it would amend the lease to add Starbucks’ offer space, but at rates that were clearly above-market.”

Accordingly, the motion for summary adjudication as to Issue No. 7 is GRANTED as to the sixth cause of action for breach of contract based upon a failure to honor Plaintiff’s Right of First Offer.

8. Issue No. 8: “Burbank Is Entitled To Summary Adjudication of the Fourth Cause of Action In the FAC For Breach of the Covenant of Good Faith and Fair Dealing.”

Among the acts pled as having breached the implied covenant of good faith and fair dealing, ¶ 117 alleges that Defendant Landlord breached the covenant of good faith and fair dealing by (a) failing to cooperate with Entertainment Partners in the performance of the contract, including but not limited to . . . refusing to accept the 2018 Estoppel Certificate executed by Entertainment Partners.

Article 31 of the Lease provides in pertinent part:

Tenant shall, at any time and from time to time upon request of Landlord (but not more than once in any twelve (12) month consecutive period except in the event of a refinancing or sale of the Project or any portion thereof or interest therein), within ten (10) days following notice of such request from Landlord, execute, acknowledge and deliver to Landlord in recordable form, a certificate (“Estoppel Certificate”) in form and substance as Landlord or any of its lenders, prospective purchasers, lienholders or assignees may deem reasonably appropriate. . . .

(Bold emphasis and underlining added.)

The Landlord’s requirement as to the form and substance of the Estoppel Certificate must be “reasonably” appropriate. Such reasonableness is a question of fact, where, as here, the Landlord is requiring the Tenant to waive the right to dispute the correct rent amount in this litigation:

When, as here, a contract provides that the satisfaction of one of the parties is a condition precedent to that party's performance, two different  [*59]  tests are recognized: (1) the party may make a purely subjective decision but it must be made in good faith; or (2) the party must make the decision in accordance with an objective standard of reasonableness. ( Mattei v. Hopper (1958) 51 Cal. 2d 119, 123 [330 P.2d 625] (Mattei); Tiffany v. Pacific Sewer Pipe Co. (1919) 180 Cal. 700, 702 [182 P. 428]; Guntert v. City of Stockton (1974) 43 Cal. App. 3d 203, 209 [117 Cal. Rptr. 601] (Guntert); Kadner v. Shields (1971) 20 Cal. App. 3d 251, 259 [97 Cal. Rptr. 742] (Kadner).) In this context, reasonableness and good faith are distinct concepts. A decision is unreasonable when it is arbitrary, capricious, or lacking in evidentiary support. A lack of good faith, on the other hand, suggests a moral quality, such as dishonesty, deceit, or unfaithfulness to duty. ( Guntert, supra, at pp. 210-211.) When the promisor has the power to make a purely subjective decision, that decision must be made in good faith, but the courts will not examine its reasonableness. ( Hall v. Webb (1924) 66 Cal. App. 416, 422-424 [226 P. 403] [as long as riparian owners honestly determined their water supply was lessened, it was immaterial whether that determination was illogical or incorrect]; see also Locke v. Warner Bros., Inc. (1997) 57 Cal. App. 4th 354, 363 [66 Cal. Rptr. 2d 921] (Locke); Schuyler v. Pantages (1921) 54 Cal. App. 83, 86-87 [201 P. 137] (Schuyler).) Conversely, when the promisor's satisfaction is evaluated under the objective test, the validity of the promisor's decision of satisfaction or dissatisfaction rests only on the reasonableness of the decision; the courts will not examine good faith. ( Guntert, supra, at p. 211.)  . . .

The choice of objective or subjective test to evaluate a promisor's satisfaction depends upon the intent of the parties, as expressed in the language of the contract. In the absence of a specific expression in the contract or one implied from the subject matter, the preference of the law is for the less arbitrary reasonable person standard. ( [*60]  Guntert, supra, 43 Cal. App. 3d at pp. 209-213; Kadner, supra, 20 Cal. App. 3d at pp. 262-263.) The reasonableness test is especially preferable when factors of commercial value or financial concern are involved, as distinct from matters of personal taste. ( Kadner, supra, at pp. 264-267; see also Mattei, supra, 51 Cal. 2d at p. 123.) Here, of course, the contract was a commercial transaction involving the lending of money. The decision to be made by Citicorp  as to whether the project budget was in balance was a matter entirely of financial concern and had no implications for aesthetics or other aspects of personal taste. 

Storek & Storek, Inc. v. Citicorp Real Estate, Inc. (2002) 100 Cal.App.4th 44, 58-60 (bold emphasis added).

A triable issue of material fact exists as to the BICGFFD cause of action, which precludes summary adjudication.

The motion for summary adjudication as to Issue No. 8 re: the fourth cause of action is DENIED.

9. Issue No. 9: “Burbank Is Entitled To Summary Adjudication of the Eighth Cause of Action In the FAC For Promissory Estoppel.”

[T]he purpose of the doctrine of promissory estoppel is “‘to make a promise binding, under certain circumstances, without consideration in the usual sense of something bargained for and given in exchange. If the promisee's performance was requested at the time the promisor made his [or her] promise and that performance was bargained for, the doctrine is inapplicable.’ [Citation.] Accordingly, a plaintiff cannot state a claim for promissory estoppel when the promise was given in return for proper consideration. The claim instead must be pleaded as one for breach of the bargained-for contract.” (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 275 [129 Cal. Rptr. 3d 467].)

San Diego City Firefighters, Local 145 v. Bd. of Admin. of San Diego City Emples. Ret. Sys. (2012) 206 Cal.App.4th 594, 619.

Here, the eighth cause of action is based upon negotiated the Lease term of the ROFO. 1AC, ¶¶ 142 – 145. Accordingly, promissory estoppel is not available to Plaintiff.

The motion for summary adjudication as to Issue No. 9 re: the eighth cause of action is GRANTED.

10. Issue No. 10: “Burbank Is Entitled To Summary Adjudication of the Seventh Cause of Action In the FAC For Declaratory Relief That the RSF Numbers Are Not As Stated in the Parties’ Lease, That Burbank Is Required To Pay Tenant Improvement Reimbursements, and that Burbank Did Not Deliver the Entire Premises To EP.”

For the reasons set forth above, Defendant is not entitled to declaratory relief to the entire Issue No. 10 as presented.

The motion for summary adjudication as to Issue No. 10 re: the seventh cause of action is DENIED.

11. Issue No. 11: “Burbank Is Entitled to Summary Adjudication of the First Cause of Action in Its Cross-Complaint, For a Declaration That the Parties’ Lease is Valid and In Full Force and Effect and the RSF of the Premises Building Are as Set Forth in the Lease.”

This should have been brought as a separate motion for summary adjudication as to the first cause of action as to the cross-complaint, with a separate hearing reserved and separate $500 filing fee paid. In any event, for the reasons set forth above, Defendant is not entitled to summary adjudication as to the first cause of action in its Cross-Complaint.

The motion for summary adjudication as to Issue No. 11 as to the first cause of action in the Cross-Complaint is DENIED.

12. Issue No. 12: “Burbank Is Entitled To Summary Adjudication of the Second Cause of Action In Its Cross-Complaint, For A Declaration That Burbank Is Not Required To Pay Tenant Improvement Reimbursements.”

This should have been brought as a separate motion for summary adjudication as to the first cause of action as to the cross-complaint, with a separate hearing reserved and separate $500 filing fee paid. Moreover, the second cause of action seeks a declaration that Burbank Plaza is not required to reimburse EP for tenant improvements until EP provides a clean estoppel certificate. Cross-Complaint, ¶ 32. As discussed above, a triable issue of material fact exists as to whether Burbank’s demand is reasonable per Article 31 of the Lease.

The motion for summary adjudication as to Issue No. 12 as to the second cause of action in the Cross-Complaint is DENIED.

13. Issue No. 13: “Burbank Is Entitled To Summary Adjudication of the Ninth Cause of Action In the FAC For Indemnification.”

The ninth cause of action seeks indemnification against Defendant Landlord for alleged torts and breaches of contract vis-à-vis Plaintiff. 1AC, ¶ 148. Pursuant to Article 14.2 of the Lease, Plaintiff seeks indemnification of Plaintiff’s attorneys’ fees incurred in this suit and damages from Landlord for Landlord’s conduct against Plaintiff.

Article 14.2 of the Lease states:

14.2. Landlord Indemnity. Landlord, to the fullest extent permitted by Law, but subject to the waiver of subrogation expressly set forth in Article 15, shall indemnify, defend and hold Tenant, its managing agent and their respective parent companies and/or corporations, their respective controlled, associated, affiliated and subsidiary companies and/or corporations and their respective representatives, shareholders, members, officers, directors, partners, agents, trustees, consultants, servants, employees, successors and assigns (collectively, the “Tenant lndemnitees”) harmless from and against all legal actions, damages, losses, liabilities, penalties, fees and other expenses, including, without limitation, reasonable legal fees and disbursements to the extent arising from the negligence or willful misconduct of Landlord or any of the Landlord Indemnitees including in connection with its management of the common areas and the structural portions of the Building and/or the Project. The foregoing indemnity shall not apply to any claim to the extent arising out of the gross negligence or willful misconduct of the Tenant Indemnitees.

(Bold emphasis and underlining added.)

This indemnity clause applies to claims brought against Tenant by third parties, not a lawsuit by Tenant against Landlord. Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 600-01, 606.

Accordingly, Plaintiff is not entitled to indemnity pursuant to Article 14.2.

The motion for summary adjudication as to Issue No. 13 as to the ninth cause of action for indemnity is GRANTED.

14. Issue No. 14: “Because Burbank Is Entitled To Summary Adjudication of Each of the Causes of Action In the FAC and Cross-Complaint, Burbank Is Entitled To Summary Judgment.”

For the reasons discussed above, Defendant is not entitled to prevail as to Issue No. 14. The motion for summary adjudication as to Issue No. 14 as to all causes of action is DENIED.

Plaintiff’s Request for Continuance

Plaintiff’s request for a continuance is DENIED. The evidence sought in discovery go to issues as to which summary adjudication was denied, not those as to which summary adjudication was granted.


[1] (aa) of the Fundamental Lease Provisions (Lease at Page ix) indicates that the Landlord’s Address for Notices is:

Burbank Plaza Tenant LLC c/o Treeview Real Estate Advisors LP

28 Liberty Street, Suite 3040

New York, New York 10005

Attention: Ms. Teresa Tsai

With a copy to:

Younkins & Schecter LLP

420 Lexington Avenue, Suite 2050

New York New York 10170

Attention: Mardi J. Schecter, Esq.

Case Number: BC705057    Hearing Date: December 02, 2019    Dept: 48

(1) APPLICATION TO SEAL;

(3) MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION

MOVING PARTY: (1) Plaintiff/Cross-Defendants GEP Administrative Services, Inc., d/b/a Entertainment Partners and Entertainment Partners LLC;

(2) Defendant/Cross-Complainant Burbank Plaza Owner LLC

RESPONDING PARTY(S): (1) No opposition;

(2) Plaintiff/Cross-Defendants GEP Administrative Services, Inc., d/b/a Entertainment Partners and Entertainment Partners LLC

PROOF OF SERVICE:

. . .

(b)Motion or application to seal a record

(1)Motion or application required a party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.

. . .

(6)Return of lodged record if the court denies the motion or application to seal, the moving party may notify the court that the lodged record is to be filed unsealed. This notification must be received within 10 days of the order denying the motion or application to seal, unless otherwise ordered by the court. On receipt of this notification, the clerk must unseal and file the record. If the moving party does not notify the court within 10 days of the order, the clerk must (1) return the lodged record to the moving party if it is in paper form or (2) permanently delete the lodged record if it is in electronic form.

(Bold emphasis added.)

CRC Rule 2.550(d) provides:

(d)Express factual findings required to seal records the court may order that a record be filed under seal only if it expressly finds facts that establish:

(1)  There exists an overriding interest that overcomes the right of public access to the record;

(2)  The overriding interest supports sealing the record;

(3)  A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4)  The proposed sealing is narrowly tailored; and

(5)  No less restrictive means exist to achieve the overriding interest.

Here, the application to seal was not accompanied by a memorandum of points and authorities or a declaration containing facts sufficient to justify the sealing in light of the factors set froth in CRC Rule 2.550(d).

Moreover, the application does not specify the portions of the opposition relating to Exhibit A which the applicant moves to seal.

Accordingly, the application to seal is DENIED. Pursuant to CRC Rule 2.551(b)(6), applicant is to notify the Court whether the lodged records are to be filed unsealed. If not such notice is received within 10 days of this order, the clerk shall return all documents lodged conditionally under seal. Applicant will then be given an opportunity to publicly file documents which omit reference to sensitive matters.

The hearing on the motion for summary judgment/summary adjudication is CONTINUED to January 9, 2020.

Case Number: BC705057    Hearing Date: November 21, 2019    Dept: 48

MOTION TO COMPEL DEPOSITION AND PRODUCTION OF RECORDS

MOVING PARTY: Plaintiff/Cross-Defendants GEP Administrative Services, Inc., d/b/a Entertainment Partners and Entertainment Partners LLC

RESPONDING PARTY(S): Defendant/Cross-Complainant Burbank Plaza Owner LLC

PROOF OF SERVICE: