Not Classified By Court
Contract - Other Contract
DALILA CORRAL LYONS
DAVID J. COWAN
NF PLANT ENTERPRISES L.P. A CALIFORNIA LIMITED PARTNERSHIP
2-WAY WIRELESS INC. A CALIFORNIA CORPORATION
MARKS KENNETH MICHAEL
5/4/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 05/04/2020
5/4/2020: Judgment - JUDGMENT BY COURT AFTER DEFAULT
5/4/2020: Minute Order - MINUTE ORDER (COURT ORDER)
5/4/2020: Notice - NOTICE OF ENTRY OF JUDGMENT
4/29/2020: Request for Entry of Default / Judgment
4/29/2020: Declaration - DECLARATION SUPPLEMENTAL, OF MARK J. ROSENBAUM IN SUPPORT OF COURT JUDGMENT AFTER DEFAULT
4/23/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER REGARDING DEFAULT JUDGMENT PACKAGE) OF 04/23/2020
4/23/2020: Minute Order - MINUTE ORDER (COURT ORDER REGARDING DEFAULT JUDGMENT PACKAGE)
3/30/2020: Reply - REPLY TO OBJECTION TO PROPOSED ORDER GRANTING SUMMARY ADJUDICATION
4/3/2020: Order - ORDER GRANTING SUMMARY ADJUDICATION
4/3/2020: Clerks Certificate of Service By Electronic Service
4/3/2020: Minute Order - MINUTE ORDER (COURT ORDER)
4/6/2020: Notice - NOTICE OF ENTRY OF ORDER
3/16/2020: Summary of the Case
3/16/2020: Request for Dismissal
3/16/2020: Request for Entry of Default / Judgment
3/23/2020: Objection - OBJECTION TO PLAINTIFF'S PROPOSED ORDER GRANTING SUMMARY ADJUDICATION
3/13/2020: Order - RULING: MARCH 12, 2020
DocketNotice (of Entry of Judgment); Filed by NF PLANT ENTERPRISES, L.P., a California limited partnership (Plaintiff)Read MoreRead Less
DocketCertificate of Mailing for ((Court Order) of 05/04/2020); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Court Order)); Filed by ClerkRead MoreRead Less
DocketJudgment (by Court After Default); Filed by NF PLANT ENTERPRISES, L.P., a California limited partnership (Plaintiff)Read MoreRead Less
DocketRequest for Entry of Default / Judgment; Filed by NF PLANT ENTERPRISES, L.P., a California limited partnership (Plaintiff)Read MoreRead Less
DocketDeclaration (Supplemental, of Mark J. Rosenbaum in Support of Court Judgment After Default); Filed by NF PLANT ENTERPRISES, L.P., a California limited partnership (Plaintiff)Read MoreRead Less
Docketat 10:24 AM in Department 20, David J. Cowan, Presiding; Court OrderRead MoreRead Less
DocketCertificate of Mailing for ((Court Order Regarding Default Judgment Package) of 04/23/2020); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Court Order Regarding Default Judgment Package)); Filed by ClerkRead MoreRead Less
Docketat 08:30 AM in Department 20, David J. Cowan, Presiding; Case Management Conference - Not Held - Advanced and VacatedRead MoreRead Less
DocketNotice ( of Continuance of Case Management Conference); Filed by NF PLANT ENTERPRISES, L.P., a California limited partnership (Plaintiff)Read MoreRead Less
DocketNotice Re: Continuance of Hearing and Order; Filed by ClerkRead MoreRead Less
DocketCase Management Statement; Filed by NF PLANT ENTERPRISES, L.P., a California limited partnership (Plaintiff)Read MoreRead Less
DocketProof of Service by Substituted Service; Filed by NF PLANT ENTERPRISES, L.P., a California limited partnership (Plaintiff)Read MoreRead Less
DocketProof of Service by Substituted Service; Filed by NF PLANT ENTERPRISES, L.P., a California limited partnership (Plaintiff)Read MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by ClerkRead MoreRead Less
DocketCivil Case Cover Sheet; Filed by NF PLANT ENTERPRISES, L.P., a California limited partnership (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by NF PLANT ENTERPRISES, L.P., a California limited partnership (Plaintiff)Read MoreRead Less
DocketSummons (on Complaint); Filed by NF PLANT ENTERPRISES, L.P., a California limited partnership (Plaintiff)Read MoreRead Less
Case Number: *******0152 Hearing Date: March 13, 2020 Dept: 20
Judge David J. Cowan
Hearing Date: Wednesday, March 12, 2020
Case Name: NF Plant Enterprises, L.P. v. 2-Way Wireless, Inc. et al.
Case No.: *******0152
Motion: Summary Adjudication
Moving Party: Plaintiff NF Plant Enterprises
Responding Party: Defendant Raj Saini
Ruling: Plaintiff’s Motion for Summary Adjudication is GRANTED as to the fourth cause of action for breach of guaranty against Defendant Raj Saini.
Plaintiff’s Motion is DENIED WITHOUT PREJUDICE as to the first, second, and third causes of action against Defendant 2-Way Wireless, Inc.
The Court sets an OSC re: default judgment for May 13, 2020 at 8:30 am in Dept. 20. in this Department.
Plaintiff is ordered to file a default judgment package in compliance with CRC Rule 3.300 and CCP ; 585 et seq. within 15 days of this ruling.
Moving party to give notice.
On August 28, 2017, Plaintiff NF Plant Enterprise, L.P. (“NFP”) entered into a lease agreement (the “Lease”) with Defendant 2-Way Wireless, Inc. (“2-Way”) providing for 2-Way to lease commercial space in NFP’s shopping complex. Additionally, Defendant Raj Saini (“Saini”) entered into a written guaranty of the Lease on behalf of 2-Way.
On January 1, 2018, 2-Way opened for business in NFP’s shopping complex.
On January 1, 2019, 2-Way ceased paying rent to NFP.
Sometime in March, 2019, 2-Way vacated the property.
On March 25, 2019, NFP filed a Complaint against 2-Way and Saini. The Complaint stated causes of action against 2-Way for breach of written contract, money had and received, and account stated. The Complaint stated a breach of guaranty claim against Saini.
On August 20, 2019, default was entered against 2-Way.
On December 6, 2019, NFP filed a Motion for Summary Adjudication of all causes of action against 2-Way and Saini. NFP requested default judgment against 2-Way.
On February 28, 2020, Saini filed an Opposition to the Motion for Summary Adjudication.
On March 5, 2020, NFP filed its Reply and evidentiary objections to Saini’s declaration in support of the Opposition.
NFP has made eighteen evidentiary objections to the Declaration of Raj Saini in support of his Opposition. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” (CCP ; 437c(q))
Objections SUSTAINED: 1, 2, 4, 7, 8, 12, 13, 14, 15, 16, 17, 18
Objections OVERRULED: 3, 5, 6, 9, 10, 11.
The Court SUSTAINS Objections 1 and 2. The alleged conversation with Siobhan Byrne is hearsay; the allegation that this conversation was a “major inducement” for the lease and guaranty lacks foundation because the underlying conversation is hearsay.
The Court SUSTAINS Objection 4. The allegation that the laundromat’s proximity was a “significant motivating factor” for the lease and guaranty lacks foundation because there is no allegation that the laundromat was ever discussed in negotiating the lease or guaranty. Additionally, there is no allegation that NFP knew the laundromat planned to move out before 2-Way moved in.
The Court SUSTAINS Objection 7. The alleged conversation with Jimena Prieto is hearsay.
The Court SUSTAINS Objection 8. The allegation that the Property was in fact “less than 1,350 square feet” lacks foundation because Saini does not claim anyone actually re-measured the property. Additionally, Saini claims he “became informed” of this fact “some time after 2-Way moved in,” but does not indicate who informed him; this is hearsay.
The Court SUSTAINS Objection 12. The allegation that NFP’s breaches and misrepresentations forced 2-Way to move out states a legal conclusion. (Evid. Code 800)
The Court SUSTAINS Objection 13. It is irrelevant that 2-Way did not continue to receive monthly statements after vacating.
The Court SUSTAINS Objections 14, 15, 16, 17, and 18. The Sprint Lease Rider is legally irrelevant to NFP’s duty to mitigate. Saini alleges he supplied the Sprint Lease Rider to NFP on September 25, 2017 “to help Plaintiff mitigate its damages” arising from the breach, but 2-Way’s lease period did not begin until January 1, 2018, and 2-Way’s alleged breach did not occur until January 1, 2019—fifteen months after Saini supplied the Rider. There is no obligation to preemptively mitigate damages before any breach.
The function of a motion for summary judgment or adjudication is to determine whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843) In analyzing such motions, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center) (2005) 135 Cal.App.4th 289, 294) Thus, summary judgment or summary adjudication is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. (CCP ; 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741)
As to each claim as framed by the complaint, the party moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to negate or establish an essential element. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389) Once the moving party has met the burden, the burden shifts to the opposing party to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. (CCP ; 437c(o)(2)) When a party cannot establish an essential element or defense, a court must grant a motion for summary adjudication. (CCP ; 437c(o)(1)-(2))
Initially, the Court notes default has been entered against Defendant 2-Way, and that default has not been vacated at this time. There is no basis to grant summary judgment against a defaulted party—accordingly, the Motion is denied without prejudice as to the First, Second, and Third causes of action, which name only 2-Way as a defendant. The Court sets an OSC re: default judgment for May 13, 2020 at 8:30 am. NFP is ordered to file a default judgment package in compliance with CRC Rule 3.300 and CCP ; 585 et seq. within 15 days.
Breach of Guaranty
The elements of a cause of action for breach of guaranty are: (1) a guarantor guaranteed payment of indebtedness of a primary obligor; (2) the primary obligor defaulted; (3) notification was given to the guarantor as to the primary obligor's default; (4) there was nonpayment of the debt by the guarantor; and (5) such breach resulted in damages. (Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 819)
Saini does not dispute that he signed the Guaranty; that he was notified of 2-Way’s purported default; that he has not paid the debt NFP claims is owed under the Guaranty; or that his nonpayment, if he was required to pay, resulted in damages. Accordingly, elements 1, 3, 4, and 5 are undisputed. However, Saini argues there are triable issues of fact as to whether the primary obligor, 2-Way, actually defaulted in light of NFP’s alleged breaches and misrepresentations. Specifically, Saini argues there are triable issues of fact as to whether these breaches excused 2-Way’s performance under the Lease. Thus, the sole issue is whether 2-Way has defaulted, i.e., whether 2-Way’s performance was excused. The Court concludes 2-Way’s performance was not excused because there is no evidence NFP breached any obligation under the Lease.
NFP’s Alleged Breaches
“When a party's failure to perform a contractual obligation constitutes a material breach of the contract, the other party may be discharged from its duty to perform under the contract.” (Brown v. Grimes (2011) 192 Cal.App.4th 265, 277) “Ordinarily the issue of materiality is a mixed question of law and fact, involving the application of a legal standard to a particular set of facts. However, if reasonable minds cannot differ on the issue of materiality, the issue may be resolved as a matter of law.” (Insurance Underwriters Clearing House, Inc. v. Natomas Co. (1986) 184 Cal.App.3d 1520, 1526–1527)
Saini identifies four purported breaches and/or misrepresentations. Saini alleges NFP’s agent, Siobhan Byrne, told him that no other entity in the mall other than Game Stop would be allowed to sell cell phones. Saini alleges NFP failed to tell him that the next-door laundromat planned on closing shortly after 2-Way moved in, and alleges 2-Way was robbed through the abandoned laundromat thereafter. Saini alleges NFP’s agent, Jimena Prieto, misrepresented the amount and quality of signage 2-Way would be able to use. Finally, Saini alleges NFP misrepresented the square footage of 2-Way’s leased property. Saini also argues NFP failed to adequately mitigate damages after 2-Way vacated.
The Court has sustained hearsay objections to Saini’s allegations of conversations with NFP’s agents, and to the extent these allegations are offered to create additional obligations under the Lease (e.g., obligations to renovate signage or to restrict other tenants’ property use) or contradict any terms of the Lease, these are barred by the parol evidence rule. (CCP ; 1856(a)-(b)) Article 30(a) provides the Lease “constitute[s] the entire agreement between the parties . . . and no prior agreement or understanding . . . shall be effective for any purpose.” Therefore, the Lease is a fully integrated agreement within the scope of CCP ; 1856(a), and Saini cannot attempt to supplement or contradict the terms of the Lease by extrinsic evidence.
Saini’s “exclusive use” argument is inconsistent with Article 7(a), which provides: “It is expressly understood and agreed by the parties hereto that, nothing contained in this Lease, or in any manner expressed or implied, is to be construed as in any way prohibiting, restricting or limiting Landlord's right to use, rent or lease any portion, or all, of the Project . . . for any. purpose, or use, whether or not such purpose or use be in competition, direct or otherwise, with the use for which the Premises herein are to be operated by Tenant.” The integrated Lease thus provides that there are no exclusive use provisions applicable to 2-Way’s lease. Saini’s allegations to the contrary are barred by CCP ; 1856(a). Thus, Saini fails to show NFP breached the Lease by allowing Spectrum to move in.
Saini’s laundromat argument fails to demonstrate any breach of the contract. Saini does not allege any conversation with NFP or its agents as to the laundromat—even if Saini’s attempt to introduce a supplemental obligation were not barred by CCP ; 1856(b)—which it is—Saini fails to show any agreement between the parties regarding the laundromat, and so no duty or obligation to disclose that it would vacate. The Lease does not require any disclosure that tenants will be closing. Thus, NFP’s alleged failure to disclose was not a breach of the Lease.
Saini’s signage argument is unsupported by the Lease and the supporting allegations are hearsay. The Lease does not say anything about renovation of the monument signage. CCP ; 1856(b) bars Saini’s attempt to introduce a supplemental obligation to renovate the monument signage based on hearsay conversations with NFP’s agent. Thus, Saini fails to show NFP’s failure to renovate was a breach of the Lease.
Saini’s property measurement argument is inconsistent with the terms of the Lease and unsupported by any evidence. Saini has no evidence he ever measured 2-Way’s leased property, alleging only that he was “informed” of its true size by someone at some point. Moreover, Saini’s own evidence reveals NFP’s agent told him he could “request to have the space re-measure[d,] if it turns out that the space measurement is accurate you will be responsible for the fees to coordinate and time for the space planner to remeasure.” (Saini Decl., Ex. A) Saini does not allege he ever requested to remeasure the space or independently remeasured it; therefore, there is no basis to claim the property was not, in fact, 1,412 square feet.
Significantly, Article 2(a) of the Lease provides: “Landlord and Tenant hereby stipulate that the Premises contains the number of square feet specified in Article 1.B. of the Basic Lease Provisions, except that the rentable and usable square feet of the Premises and the Project are subject to verification from time to time by Landlord's architect/space planner. In the event that Landlord's architect/space planner determines that the amounts thereof shall be different from those set forth in this Lease, all amounts, percentages and figures appearing or referred to in this Lease based upon such incorrect amount (including, without limitation, the amount of the Basic Rental and Tenant's Proportionate Share) shall be modified in accordance with such determination. If such determination is made, it will be confirmed in writing by Landlord to Tenant.” The Lease provided Saini a remedy for incorrect property measurements. When he complained to NFP’s agent, the agent indicated he could request remeasurement as provided by this provision. Saini did not do so. Saini cannot claim NFP breached the Lease because of his own failure to seek remeasurement. Thus, even if the property is actually less than 1,412 square feet, NFP has not breached the Lease.
Saini further argues that NFP “fails to proffer sufficient evidence that it mitigated its damages.” This improperly reverses the burden. “The burden of proving that losses could have been avoided by reasonable effort and expense must always be borne by the party who has broken the contract.” (Brandon & Tipps v. George Kevorkian Accountancy Corp. (1990) 226 Cal.App.3d 442, 460) Saini claims he “tried to help Plaintiff mitigate its damages by executing an emailing a Sprint rider lease to NFP’s agent in September of 2017.” This does not make sense; 2-Way’s lease period did not begin until January 1, 2018 and 2-Way’s alleged breach did not occur until January 1, 2019. Saini cannot logically claim he offered the Rider to “help Plaintiff mitigate its damages” before any breach occurred, much less before 2-Way even moved in. Thus, Saini’s claim that the lease rider was offered “to help NFP mitigate its damages” is not at all credible.
Finally, there is a serious defect in Saini’s core argument that NFP’s breaches excused 2-Way’s performance. Under Article 20(h), 2-Way explicitly “waive[d] . . . the right to terminate this Lease on account of any Landlord default.” Additionally, under Article 20(g), 2-Way agreed that “Landlord shall not be in default under this Lease unless Landlord fails to perform obligations required of Landlord within sixty (60) days after written notice is delivered by Tenant to Landlord.” The Lease, at Article 30(l), further requires that any written notice of default “shall be addressed to Landlord at the notice address(es) for Landlord,” and that “[n]o notice by Tenant shall be valid unless and until such notice is delivered to all three Landlord representatives.” Saini fails to allege any written notice in compliance with these conditions, and so NFP was not in default under the terms of the Lease; but even if NFP was in default, 2-Way had no right to terminate the Lease. Thus, it is not at all clear that NFP’s alleged breaches, if they were breaches, would excuse performance.
Thus, as there is no evidence NFP breached its contractual obligations under the Lease, 2-Way’s performance was not excused. 2-Way’s nonpayment of rent was a default under the Lease. Thus, there is no triable issue of material fact as to the breach of guaranty claim. The Court GRANTS the motion for summary adjudication against Saini on the fourth cause of action for breach of guaranty.
NFP’s Motion for Summary Adjudication is GRANTED as to the fourth cause of action for breach of guaranty against Defendant Raj Saini.
NFP’s Motion is DENIED WITHOUT PREJUDICE as to the first, second, and third causes of action against Defendant 2-Way Wireless, Inc.
The Court sets an OSC re: default judgment for May 13, 2020 at 8:30 am in Dept. 20.
NFP is ordered to file a default judgment package in compliance with CRC Rule 3.300 and CCP ; 585 et seq. within 15 days of this ruling.
Moving party to give notice.
 NFP argues Saini cannot assert a defense on behalf of 2-Way due to its default. However, Saini’s liability for breach of guaranty depends on whether 2-Way actually defaulted, so Saini’s defense requires him to defend 2-Way’s conduct. Thus, Saini’s arguments are permissible.
 Saini also argues NFP breached the implied covenant of good faith and fair dealing. However, Saini cites no authority that a breach of the implied covenant excuses performance. Indeed, the implied covenant “cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 349) Rather, the covenant “exists merely to prevent one contracting party from unfairly frustrating the other party's right to receive the benefits of the agreement actually made.” (Id. at 350 (emphasis original)) It does not impose additional substantive obligations that the parties did not put in writing—particularly where the contract at issue is integrated, as it is here.
 Saini’s allegations of theft by a third party are not a breach under the Lease. Article 14(a) expressly indemnifies the landlord for theft on the premises.
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