This case was last updated from Los Angeles County Superior Courts on 03/18/2021 at 03:54:25 (UTC).

MICHAEL LESLIE PRODUCTIONS INC ET AL VS DEPT OF REC & PARKS

Case Summary

On 02/08/2018 MICHAEL LESLIE PRODUCTIONS INC filed an Other - Writ Of Mandamus lawsuit against DEPT OF REC PARKS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are JAMES C. CHALFANT, AMY D. HOGUE, MALCOLM MACKEY and GREGORY KEOSIAN. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2432

  • Filing Date:

    02/08/2018

  • Case Status:

    Other

  • Case Type:

    Other - Writ Of Mandamus

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

JAMES C. CHALFANT

AMY D. HOGUE

MALCOLM MACKEY

GREGORY KEOSIAN

 

Party Details

Plaintiffs, Petitioners and Cross Defendants

MICHAEL LESLIE PRODUCTIONS INC

READY GOLF CENTERS

MICHAEL LESLIE PRODUCTIONS INC DBA READY GOLF CENTERS

BERNBACK MICHAEL L.

Defendants, Respondents and Cross Plaintiffs

BOARD OF RECREATION AND PARK COMMISSIONER

LOS ANGELES CITY OF

DEPARTMENT OF RECREATION AND PARKS

DOES 1 TO 25

SHULL MICHAEL

KO AGNES

THE CITY OF LOS ANGELES A MUNICIPAL CORPORATION

Attorney/Law Firm Details

Plaintiff, Petitioner and Cross Defendant Attorney

POMERANCE DREW E. ESQ.

Defendant and Respondent Attorneys

KWON RUTH M. ESQ.

KWON RUTH MUSICK

GOSS JEFFREY LEE

FAUBLE STREFAN ESQ.

Cross Plaintiff Attorney

FEUER MICHAEL NELSON

 

Court Documents

Informal Discovery Conference - INFORMAL DISCOVERY CONFERENCE PLAINTIFF AND CROSS - DEFENDANTS SEPARATE STATEMENT RE: INFORMAL DISCOVERY CONFERENCE

9/23/2020: Informal Discovery Conference - INFORMAL DISCOVERY CONFERENCE PLAINTIFF AND CROSS - DEFENDANTS SEPARATE STATEMENT RE: INFORMAL DISCOVERY CONFERENCE

Declaration - DECLARATION OF JEFFREY GOSS ISO CITY MOTION FOR SUMMARY JUDGMENT

12/29/2020: Declaration - DECLARATION OF JEFFREY GOSS ISO CITY MOTION FOR SUMMARY JUDGMENT

Request for Judicial Notice

12/29/2020: Request for Judicial Notice

Reply - REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MICHAEL LESLIE PRODUCTIONS, INC.S MOTION FOR SUMMARY ADJUDICATION OF ISSUES

1/7/2021: Reply - REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MICHAEL LESLIE PRODUCTIONS, INC.S MOTION FOR SUMMARY ADJUDICATION OF ISSUES

Objection - OBJECTION TO EVIDENCE PROFFERED BY CITY OF LOS ANGELES IN OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION

1/7/2021: Objection - OBJECTION TO EVIDENCE PROFFERED BY CITY OF LOS ANGELES IN OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION

VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR: 1. DECLARATORY RELIEF; ETC

2/7/2018: VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR: 1. DECLARATORY RELIEF; ETC

DEFENDANT CITY OF LOS ANGELES'S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER TO ENJOIN EVICTION; DECLARATION OF RUT

3/23/2018: DEFENDANT CITY OF LOS ANGELES'S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER TO ENJOIN EVICTION; DECLARATION OF RUT

Request for Judicial Notice

9/10/2019: Request for Judicial Notice

Declaration - DECLARATION OF DEMURRING PARTY REGARDING MEET AND CONFER

8/27/2019: Declaration - DECLARATION OF DEMURRING PARTY REGARDING MEET AND CONFER

Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

5/29/2019: Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

5/9/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Declaration - Declaration of Ryan Salsig in Support of Michael Leslie Production Inc., dba Ready Golf Centers and Michael Bernback's Demurrer to the City of Los Angeles' Cross-Complaint

2/1/2019: Declaration - Declaration of Ryan Salsig in Support of Michael Leslie Production Inc., dba Ready Golf Centers and Michael Bernback's Demurrer to the City of Los Angeles' Cross-Complaint

Certificate of Mailing for - Certificate of Mailing for Minute Order (Court Order) of 02/08/2019

2/8/2019: Certificate of Mailing for - Certificate of Mailing for Minute Order (Court Order) of 02/08/2019

DECLARATION OF ROBERT DAVIS IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

6/26/2018: DECLARATION OF ROBERT DAVIS IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

MICHAEL LESLIE PRODUCTIONS INC., DBA READY GOLF CENTERS' REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION TO PREVENT TERMINATION OF SEPULVEDA GOLF CONCESSION

7/3/2018: MICHAEL LESLIE PRODUCTIONS INC., DBA READY GOLF CENTERS' REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION TO PREVENT TERMINATION OF SEPULVEDA GOLF CONCESSION

205 More Documents Available

 

Docket Entries

  • 03/16/2021
  • Docketat 10:00 AM in Department 61, Gregory Keosian, Presiding; Hearing on Motion for Summary Judgment - Not Held - Continued - Court's Motion

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  • 03/16/2021
  • Docketat 09:00 AM in Department 61, Gregory Keosian, Presiding; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by Court

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  • 03/09/2021
  • DocketRequest for Dismissal; Filed by Michael Leslie Productions Inc (Plaintiff); The City of Los Angeles, a Municipal Corporation (Defendant)

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  • 02/11/2021
  • Docketat 09:00 AM in Department 61, Gregory Keosian, Presiding; Post-Mediation Status Conference - Held

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  • 02/11/2021
  • DocketMinute Order ( (Post-Mediation Status Conference)); Filed by Clerk

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  • 01/25/2021
  • DocketNotice of Ruling (DENYING PLAINTIFF/CROSS-DEFENDANT MICHAEL LESLIE PRODUCTIONS, INC.?S MOTION FOR SUMMARY ADJUDICATION); Filed by The City of Los Angeles, a Municipal Corporation (Defendant)

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  • 01/14/2021
  • Docketat 2:47 PM in Department 61, Gregory Keosian, Presiding; Ruling on Submitted Matter

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  • 01/14/2021
  • DocketMinute Order ( (Ruling on Submitted Matter)); Filed by Clerk

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  • 01/14/2021
  • DocketNotice of Ruling (Ruling Re Plaintiff and Cross-Defendant Michael Leslie Productions, Inc.'s Motion for Summary Adjudication of the First Amended Cross-Complaint); Filed by Clerk

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  • 01/14/2021
  • DocketCertificate of Mailing for ((Ruling on Submitted Matter) of 01/14/2021); Filed by Clerk

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259 More Docket Entries
  • 02/20/2018
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 02/20/2018
  • DocketProof-Service/Summons

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  • 02/20/2018
  • DocketProof-Service/Summons

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  • 02/20/2018
  • DocketProof-Service/Summons

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  • 02/14/2018
  • DocketNotice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 02/14/2018
  • DocketNOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON

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  • 02/08/2018
  • DocketPetition; Filed by null

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  • 02/07/2018
  • DocketSUMMONS

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  • 02/07/2018
  • DocketVERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR: 1. DECLARATORY RELIEF; ETC

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  • 02/07/2018
  • DocketNotice of Related Cases

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Tentative Rulings

Case Number: BS172432    Hearing Date: January 12, 2021    Dept: 61

  1. OBJECTIONS

    City’s Objections

    The court SUSTAINS City’s Objection No. 11, which relates to Michael J. Bernback’s opinion as to City’s motivation for its actions. Objections No. 1–8 are OVERRULED.

    City’s Objections No. 9–10 and 12–19 relate to Plaintiffs’ introduction of correspondence with Deputy City Attorney Michael Fauble, which City contends are settlement communications under Evidence Code § 1152, which states:

    Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or any part of it.

    (Evid. Code § 1152, subd. (a).) City contends that the representations made in Fauble’s communications to the effect that the City agreed that certain obligations in the purported 2009 amendments were binding upon it, were made in the context of ongoing correspondence attempting to resolve the parties’ mutual claims to contractual breach, and are therefore inadmissible.

    Plaintiffs respond that the correspondence at issue has less in common with settlement negotiations than with position and demand letters. (Reply at pp. 4–5; see Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481, 1493–94 [“A statement by a claimant concerning the extent of his injuries or disease, or concerning the amount of damages he or she claims to have suffered, if not connected with an offer of compromise, may well constitute an admissible admission.”].) Yet while the letters do state the parties’ respective positions and assert purported breaches by the other, there is substantial basis in the correspondence at issue, particularly that from Fauble himself, that suggests the context of settlement negotiations and accompanying offers to compromise. Fauble’s letters repeatedly express a desire not “to incur the time and expense of litigating this matter” in response to Plaintiffs’ demands, and it is after these assertions that Fauble makes the statements concerning the amendments that Plaintiffs rely upon. (Fauble Decl. Exh. B, D.) The letter that states Plaintiffs may pay 20% of gross proceeds as rent instead of 25% expressly states that the reduction is offered “in the spirit of cooperation” and conditioned on Board and Army Corps of Engineers Approval. (Fauble Decl. Exhs. B, D.) Fauble himself characterizes the communications as intended to settle the dispute; his later letters included offers to adopt a “redlined” version of the O&M Agreement incorporating the amendments to which the City (or at least Fauble) was once agreeable. (Fauble Decl. ¶¶ 3–6, Exh. D.)

    Plaintiffs further argue that, even if construed as settlement communications, the letters are admissible because Plaintiffs seek to use them to show contract formation, not the liability of City for any loss or damage sustained by Plaintiffs. (Reply at p. 4.) But the authority that Plaintiffs rely on does not quite stand for their point. In Hawran v. Hixon (2012) 209 Cal.App.4th 256, 296–97, the court held that statements made during settlement negotiations of a wrongful termination claim were admissible, not to prove liability on the wrongful termination claim that was negotiated, “but to establish a binding agreement had been reached regarding the terms of [plaintiff]s resignation for purposes of a different, subsequent, breach of contract claim..” (Id. at p. 297.) Here, Plaintiffs’ efforts at proving contract formation through these letters is an effort to establish liability on the very same disputes that the parties were negotiating to resolve. (Id. at pp. 296­­–97 [“Evidence Code section 1152 only prohibits the introduction into evidence of an offer to compromise a claim for the purpose of proving liability for that claim.”], italics in original.)

    A more analogous case is Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285. There, a construction contractor sued City for violating its contractual warranties and concealing hazards on a construction site that the contractor was hired to improve. (Id. at p. 290.) When the contractor requested a change order to allow a more expensive construction method to account for the concealed hazards (and to accordingly increase the price paid for the work), the City denied that any change order was necessary and directed the contractor to continue at the agreed price. (Ibid.) At trial, the contractor introduced a letter it sent to the city requesting the change order, as well as a responsive letter from the City stating that no change order would be issued. (Id. at p. 296.) The contractor submitted another letter requesting that their preferred method be used at an additional cost of $12,000; the City sent a response “authorizing use” of the requested method “and stating that the city would assume the additional cost.” (Ibid.) The city then sent another communication confirming that it would undertake the additional cost and issue a change order. (Ibid.) Yet when the contractor sent another communication showing that the cost would be substantially higher than previously indicated — $34,400 as opposed to $12,000 — it was at that point the city rejected the contractor’s offer. (Ibid.) The court held that it was error to allow the admission of these communications under Evidence Code § 1152, and that it was no answer to say that they were admitted “to show the contemporaneous and practical construction of the contract,” because such communications are only useful to establish practical construction “before any dispute has arisen.” (Id. at p. 296.) By the time the communications were sent, the parties “had reached a stage of clear disagreement on the crucial question whether plaintiff was entitled to a change order,” and “[a]nything said in negotiations after that date . . . remained subject to exclusion under Evidence Code § 1152.” (Id. at p. 297.) Fauble’s communications

    City’s objections No. 9–10 and 12–19 are therefore SUSTAINED under Evidence Code § 1152. But it is ultimately unnecessary to resolve the motion on this basis. Even considering the communications at issue, triable issues of fact remain that preclude the grant of Plaintiffs’ requested relief, as will be explained below.[1]

    Plaintiffs’ Objections

    The court SUSTAINS Plaintiffs’ Objection No. 16 to the Fauble Declaration, which concerns Fauble’s opinion as to Pomerance’s intent to mislead the court. Plaintiffs’ Objections No. 1–43 to the Rudnick Declaration, No. 1–15 and 17–31 to the Fauble Declaration, Exhibits A–E to the Arrivillaga Declaration, and Reqeusts for Judicial Notice are OVERRULED.

  2. MOTION FOR SUMMARY JUDGEMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) Plaintiffs moving for summary judgment may meet their initial burden by “prov[ing] each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc. § 437c(p)(1).)

Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Code Civ. Proc. § 437c(p)(1).) The defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Code Civ. Proc. § 437c(p)(1).) 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, 166.)

Plaintiff moves for summary adjudication of the first through fifth causes of action in Defendant’s FAXC, which are all for different alleged breaches of contract. The breaches that the City alleges are as follows:

  1. The failure to invest in capital improvements to the Sepulveda Golf Complex within 24 months of the O&M agreement’s execution (FAXC ¶¶ 63–65);

  2. The failure to keep the driving range shop open from 30 minutes before the first tee time to 10:00 p.m. (FAXC ¶¶ 70–71);

  3. The failure to pay 25% of gross receipts of the driving range business and instead paying only 20% (FAXC ¶¶ 76–78);

  4. The failure to maintain the putting green or driving range premises (FAXC ¶¶ 81–83); and

  5. The failure to allow customers to pay for goods and services by credit and debit card. (FAXC ¶¶ 89–90.)

Plaintiff argues that each of these claims is without merit.

  1. CAPITAL IMPROVEMENTS

As to the first claim for failure to invest capital improvements, Plaintiff argues that a 2009 Capital Improvement Letter amended the O&M agreement to reduce Plaintiff’s capital improvement obligations to either the installation of synthetic turf or sod on the driving range, with no time specified for performance of that obligation. (Motion at pp. 15–16.) Alternately, Plaintiff argues that any obligation to perform this capital improvement was excused by the City’s failure to maintain the driving range per the terms of its letter agreement. (Motion at pp. 16–18.)

The background of this dispute is as follows. City alleges that Plaintiff breached the Operations and Management Agreement (O&M Agreement) by failing to invest $1.3 million in various capital improvements, including renovation of the driving range landing area. (FAXC ¶ 37.) The parties agree that the O&M Agreement was the product of a Request for Proposal (RFP) issued by City in April 2007 and a Proposal that Plaintiff submitted in July 2007, both of which were incorporated into the O&M Agreement, although the precise extent of this incorporation is disputed. (Defendant’s Separate Statement of Undisputed Material Facts (DUMF) No. 9; Arrivillaga Decl. Exh. A, § 38.) Although the City Council approved the O&M Agreement on December 11, 2009, the parties awaited final approval by the Army Corps of Engineers (DUMF No. 10), which did not come until August 2011, by which point a dispute over utility payments had arisen between the parties that prevented execution of the agreement. (Bernback Decl. ¶ 9.) The parties did not execute the agreement until February 9, 2016, after a suit brought by Plaintiff terminated in its favor. (Arrivillaga Decl. Exh. A; DUMF No. 22–23.)

A wrinkle in this story is the introduction of amendments sent to Plaintiff by letter from Robert N. Morales, Senior Management Analyst II for the City, on December 10, 2009, the day before the City Council approved the O&M agreement. One such letter purported to abrogate section 11 (detailing concession improvements) and replace it with the single requirement that Plaintiff install sod on the driving range. (Bernback Decl. Exh. F.)

Triable issues of fact exist as to whether these amendments form part of the O&M Agreement that the parties executed, since these amendments are not mentioned in or incorporated into the final O&M Agreement, and since the O&M Agreement contains an integration clause disclaiming terms outside of it. (Arrivillaga Decl. Exh. A, § 35.) Plaintiff contends that the agreement was modified by correspondence between counsel for the parties, which was exchanged in and after August 2016. (Motion at pp. 10–11.) Specifically, Plaintiffs point to letters sent by deputy city attorney Michael Fauble, in which he stated that City “agrees” on the fact that “Mr. Morales’s letter of December 10, 2009 . . . relieved Ready Golf of many of the capital improvements required under the Agreement.” (Motion at pp. 10–11; Pomerance Decl. ¶¶ 6–9.) Another later letter reiterated this assertion of the City’s position. (Pomerance Decl. Exhs. 1, 2, 5.) Yet this too is a matter of dispute, as the O&M Agreement by its terms may only be modified “by formal, written amendment fully executed by both CITY and CONCESSIONAIRE.” (Arrivillaga Decl. Exh. A, § 35.) And Michael Fauble presents a declaration including a broader scope of the correspondence to which Plaintiff refers, indicating that the language on which Plaintiff relies is not a “formal, written agreement” but one more step in a settlement negotiation which continued long after the letter containing the language at issue was sent. (Fauble Decl. ¶¶ 4–11, Exhs. A–F.) Thus triable issues remain as to whether the agreement was modified.

But Plaintiff contends that City is equitably estopped as a matter of law from disclaiming the applicability of the amendments, by virtue of its conduct subsequent to the execution of the agreement. (Motion at pp. 12–14.) “The requisite elements for equitable estoppel against a private party are: (1) the party to be estopped was apprised of the facts, (2) the party to be estopped intended by conduct to induce reliance by the other party, or acted so as to cause the other party reasonably to believe reliance was intended, (3) the party asserting estoppel was ignorant of the facts, and (4) the party asserting estoppel suffered injury in reliance on the conduct.” (Emma Corp. v. Inglewood Unified School Dist. (2004) 114 Cal.App.4th 1018, 1030.) The doctrine of equitable estoppel may be applied against a government where justice requires, but “will not be applied against the government if to do so would effectively nullify a strong rule of policy, adopted for the benefit of the public.” (Ibid.)

Triable issues remain on this point. Construing the Fauble letters as the City’s acknowledgement of the obligations conceded therein, such that Plaintiff could have reasonably relied upon them to its detriment, the letters maintained Plaintiff’s obligation to perform at least one remaining improvement — to install sod on the driving range — and specifically reiterated the City’s position that Plaintiff needed to complete the improvement within 24 months, according to the original agreement. (Pomerance Decl. Exh. 1.) Although Plaintiff contends that its performance of this improvement was excused by City’s failure to maintain the driving range, as promised under the purported amendments, there has been no estoppel as to the City’s position re: maintenance, as Fauble sets forth in the same correspondence: “[T]he Department is not responsible for maintenance of the driving range landing area. Ready Golf is responsible, as it was during the Interim Permit.” (Pomerance Decl. Exh. 5.) Although Plaintiff contends that City has always been responsible for maintenance, this fact was disputed by Plaintiff’s own counsel in communications with City: “[Y]ou should know that the Department has barely managed the driving range maintenance all these years and has done NO maintenance at all on the range landing area over the past 9 months,” i.e. since the execution of the O&M Agreement. (Pomerance Decl. Exh. 2.) Triable issues thus exist as to whether City engaged in conduct to induce reliance on the part of Plaintiffs.

Accordingly, the motion for summary adjudication is DENIED as to the first cause of action.

  1. RETAIL SHOP

Plaintiff further argues that the allegations related to the running of a retail shop are infirm because the agreement does not require the running of any such shop. (Motion at p. 19.) The FAXC alleges that Plaintiff was obliged “to operate the driving range shop and keep the driving range shop open in conjunction with driving range hours of operation, which are 30 minutes before tee time to 10:00 p.m.” (FAXC ¶ 70.) Plaintiff notes that the O&M Agreement prescribes hours for the “Golf Professional Shop” and the “Golf Driving Range,” but no such hours are prescribed for the driving range shop. (Bernbeck Decl. Exh. I, § 8.) Plaintiff also notes that the O&M Agreement contains separate definitions of the “Pro shop” — which includes a retail display area, offices, a storage room, and an employee restroom — and a “Driving Range Shop,” which “includes a ball vending machine area and work/storage rooms,” with an open storage area behind the shop open for use by Plaintiff. (Bernbeck Decl. Exh. I, § 3.) Thus Plaintiff argues that the agreement did not contemplate a driving range “shop” in the customary meaning of that word, but merely a space for ball vending machines and storage. (Motion at p. 19.)

But triable issues exist as to this issue. City in opposition presents Plaintiff’s 2007 proposal, submitted in response to City’s RFP, differentiating between the Pro Shop and Range Shop, and stating that the range shop was a “viable satellite golf shop” that “sells all products that the golf shop has with few exceptions.” (Arrivillaga Decl. Exh. A at pp. 185–86.) That same section states that the range shop’s hours are “in conjunction with the range hours,” generally from 6 a.m. to 10 or 11 p.m., depending on the season. (Id. at p. 186.) Plaintiff’s proposal was incorporated into the O&M Agreement. (Arrivillaga Decl. Exh. A at p. 49.)

Plaintiff argues in reply that its proposal was not incorporated into the O&M Agreement to the extent that City suggests. (Reply at pp. 1–4.) Plaintiff notes that the City’s request for proposals, to which its own proposal responded, stated only that “portions” of the RFP and proposal might become contractual obligations in an ultimate agreement. (Bernback Decl. Exh. B at p. 70.) Plaintiff also contends that the incorporated proposal, as well as other documents, are only intended to be referenced in the event the terms of the O&M Agreement itself are in contradiction. (Reply at p. 2.) Finally, Plaintiff points out that when City’s person most knowledgeable was questioned regarding whether other specific tenets of Plaintiff’s proposal were incorporated into the agreement, he stated that he did not know. (Reply at p. 3; Supp. Pomerance Decl. Exh. 1.)

The court cannot conclude from this showing that Plaintiff’s interpretation of the incorporation of its proposal is correct as a matter of law. Whether contractual parties incorporated the terms of another document into their contract “depends on the parties’ intent as it existed at the time of contracting,” and resolution of this matter “is a question of fact.” (Versaci v. Superior Court (2005) 127 Cal.App.4th 805, 814–15.) Plaintiff’s argument that the exhibits, including the proposal, were merely incorporated to resolve contradictions in the main body of the O&M Agreement is not a necessary reading of the language. The O&M Agreement merely states that the exhibits may be referred to “[i]n the event of any inconsistency between any of the provisions of this Agreement and/or appendix attached hereto,” not that the exhibits may only be referenced for this purpose. (Arrivillaga Decl. Exh. A, § 38.) Conversely, the same section expressly states, “The following Exhibits are to be attached to and made part of this AGREEMENT by reference,” before listing, among other documents, the proposal. (Ibid.) In the same vein, the statement in the City’s RFP to the effect that “portions” of the proposal and RFP could become part of the ultimate agreement does not militate in favor of Plaintiff’s conclusion, as there is no language indicating either document could not be incorporated wholesale as the City contends they were.

Because triable issues exist as to whether the O&M Agreement prescribed hours of operation for the range shop by the incorporated proposal, the motion is DENIED as to second cause of action.

  1. RENT

Plaintiff argues that the allegation regarding failure to pay 25% of gross receipts in rent was altered by the letter agreement reducing rent to 20%. (Motion at p. 20.) Plaintiff once more refers to the Morales letters, which stated that Plaintiff’s rent was to be reduced from 25% of gross receipts to 20%. Plaintiff contends that the 20% figure was not contested by City until the present lawsuit. (Motion at p. 20.)

As with the capital improvements, there are triable issues as to whether the amendments were made part of the O&M Agreement either in 2009 or after execution in 2016, and summary adjudication cannot be had on this ground.

Nor may Plaintiff rely upon equitable estoppel to satisfy the present motion, as the very communications (from Michael Fauble) that constitute the basis for Plaintiff’s argument expressly argues that Plaintiff is obligated to pay 25% in rent, and offers a 20% rate as a means of avoiding litigation and contingent on approval by the board and by the Amry Corps of Engineers. (Pomerance Decl. Exh. A.) Indeed, the original communication that prompted Fauble’s letters was a missive from Plaintiff’s attorney objecting to City’s insistence that rent be calculated at 25%. (Fauble Decl. Exh. A..)

Accordingly, the motion is DENIED as to the third cause of action.

  1. MAINTENANCE

Plaintiff argues that the claim that it was obligated to maintain the landscaping of the premises is belied by the agreement between the parties, which does not apportion landscaping responsibility in the text, and by the concurrent agreements and practices of the parties, where the City acknowledged its responsibility for landscaping. (Motion at pp. 20–22.) Plaintiff points to section 10 of the O&M Agreement, which states that Plaintiff “shall be responsible for all necessary janitorial duties and damage/maintenance repair,” and responsible for the maintenance of the interior of the properties, “includ[ing] all sweeping, washing, servicing, repairing, replacing, cleaning, and interior painting.” (Arrivillaga Decl. Exh. A at p. 23.) City, meanwhile, is given responsibility to “maintain the exterior of all buildings.” (Ibid.) Plaintiff contends that this indicates that Plaintiff was not to be given responsibility for exterior landscaping, such as the putting green or driving range. (Motion at p. 21.) Plaintiff further relies upon another 2009 amendment apportioning responsibility for landscaping to the City, stating that the City “shall continue” the maintenance of the range area. (Burnback Decl. Exh. F.)

The motion cannot be granted on this basis. First, although the main body of the O&M Agreement is silent as to apportionment of landscaping responsibility, Plaintiff’s proposal provided a detailed maintenance schedule, including an assurance that that Plaintiff would perform a variety of landscaping tasks, including “mowing” and “fertilization and soil amendments,” “should it be required between the range tee line and the range shop.” (Arravillaga Decl. Exh. A at p. 168.) Additionally, the very amendment that Plaintiff relies upon does not automatically confer landscape maintenance authority upon City, but rather conditions it “[u]pon the installation of sod grass on the landing area,” which the parties agree was not performed. (Bernback Decl. Exh. F.) Thus this amendment cannot furnish a basis to absolve Plaintiffs of this claim.

Accordingly, the motion is DENIED as to the fourth cause of action.

  1. DEBIT AND CREDIT CARDS

Plaintiff finally argues that it never breached its obligation to accept debit and credit cards, and continuously did so in accordance with the agreement. (Motion at pp. 22–23.) Plaintiff argues that all the O&M Agreement requires is that Plaintiff “have the ability to accept Visa, Mastercard, American Express, and debit card payments from patrons (customers).” (Bernback Decl. Exh. I, § 9.U.1.) Plaintiff presents the declaration of its CEO Michael Bernback, who testifies that customers could always pay with credit or debit cards at the Pro Shop. (Bernback Decl. ¶ 43.) Plaintiff contends that the only place it did not accept credit or debit cards was at its ball vending machines, which the agreement does not mention with respect to the debit and credit obligations. (Motion at pp. 22–23.)

City responds that the clause must include the ball vending machines. It points to the declaration of Matthew Rudnick, a Chief Managmeent Analyst with the City’s Department of Recreation and Parks, who testifies that Plaintiff’s revenue summary indicates that its driving range revenue accounted for 77% of revenue from February 2016 to May 2018. (Rudnick Decl. ¶ 30.) Rudnick testifies that the City’s reasons for requiring debit and credit access for patrons is “as an audit on revenue received by the Department’s vendors.” (Rudnick Decl. ¶ 31.) Rudnick claims that allowance for a cash-only revenue stream, such as the vending machines, is at an increased risk of fraud and under-reported revenue. (Rudnick Decl. ¶ 31.) Thus City’s argument is that it is unreasonable for Plaintiffs to interpret the contract to exclude a substantial portion of their revenue stream from the obligation to accept debit and credit cards.

The court concludes that the Rudnick declaration creates a triable issue of fact as to the interpretation of the credit/debit card clause. If the ball vending machines amounted to as significant a portion of Plaintiff’s business as Rudnick’s declaration suggests, than a reasonable interpretation of the clause could include the vending machines, in order to further the City’s policy behind the inclusion of such clauses. Accordingly, the motion is properly DENIED as to the Fifth Cause of Action.


[1] The parties do not address one potential distinction on the section 1152 issue: that between the offensive use of the communications to establish City’s liability on the 2009 amendments, and their defensive use to establish Plaintiffs’ absence of liability on the original contract. Plaintiffs’ present motion is defensive rather than offensive in posture, designed to adjudicate the cross-claims that City brings against them. It is possible — though not argued and therefore not a position presently embraced by this court — that Fauble’s communications may be admitted under section 1152 to estop City from arguing that Plaintiffs breached the obligations that City disclaimed therein, even if Plaintiffs’ could not then use the same communications to establish City’s own liability. But as discussed below, Plaintiffs’ motion must be denied even if the communications are admitted and considered.

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