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Frittelli, Inc v. 350 North Canon Drive

December 20, 2011


APPEAL from a judgment of the Superior Court of Los Angeles County, Cesar C. Sarmiento, Judge. Affirmed. (Los Angeles County Super. Ct. Nos. SC102583 c/w SC102702)

The opinion of the court was delivered by: Manella, J.


In the underlying action, appellant Frittelli, Inc. (Frittelli) asserted claims for breach of a lease, breach of the implied covenant of quiet enjoyment, negligence, and rescission, alleging that respondents' renovation of a shopping center destroyed Frittelli's business within the center. The trial court granted summary judgment in favor of respondents on Frittelli's claims, concluding that they failed in light of exemptions for lessor liability within Frittelli's lease. We affirm.


There are no material disputes regarding the following facts: In April 2006, respondents Laurel Karabian and Cynthia D. Norian, as owners of a shopping center in Beverly Hills, entered into a commercial lease with Frittelli, which established a "gourmet doughnut shop" within the center. Alison Winston executed the lease on behalf of Frittelli. Shortly afterward, respondent 350 North Canon Drive, L.P. (350 North Canon), became the owner of the shopping center. Throughout the underlying events, respondent Personalized Property Management (PPM) managed the shopping center.

The lease consisted of a standard form agreement entitled "Standard Retail/Multi-Tenant Lease -- Net," together with several addenda containing supplemental provisions. Pertinent here are several provisions in the form agreement. Although paragraph 38 guaranteed Frittelli quiet enjoyment of its premises provided Frittelli complied with its lease obligations, paragraph 2.12 granted the lessor authority to remodel the shopping center. The remodeling authorization contained a limitation of the lessor's liability for damages due to the renovations, but provided for an abatement of Frittelli's rent in proportion to the degree that Frittelli's use of the premises was impaired.

Paragraph 8 of the lease contained provisions obliging the parties to maintain insurance and exempting the lessor from liability for damages. Paragraph 8.8 provided that "[n]otwithstanding the negligence or breach of th[e] lease by Lessor or its agents," the lessor was exempt from liability for certain types of injury and damage, including damages from "conditions arising upon the Premises or upon other portions of the building of which the Premises are a part," and "injury to Lessee's business or for any loss of income or profit therefrom." Paragraph 8.8 stated: "[I]t is intended that Lessee's sole recourse in the event of such damages or injury [shall] be to file a claim on the insurance policy(ies) that Lessee is required to maintain pursuant to the provisions of paragraph 8."

In September 2008, 350 North Canon hired McCormick, Inc., d.b.a. McCormick Construction Company (McCormick), to make renovations to the shopping center. Karabian and Nourian, together with Peggy Kahn of PPM, met with the tenants to discuss the planned renovation project. After construction on the shopping center began, scaffolding was placed along the center's facade. 350 North Canon arranged for temporary signs to identify each of the tenants; in addition, McCormick moved the awnings naming the stores from the center's facade to the top of the scaffolding. When Winston complained that there was excess dust and dirt in Frittelli's commercial space, 350 North Canon directed its cleaning service to clean each tenant's space every day. 350 North Canon also offered rent concessions to the tenants, including Frittelli.

In April 2009, 350 North Canon began an unlawful detainer action against Frittelli (Los Angeles County Superior Court Case No. SC 102583). Frittelli, in turn, initiated an action for breach of the lease and negligence against respondents (Los Angeles County Superior Court Case No. SC 102702). Frittelli's original complaint alleged that the shopping center renovation made it impossible for Frittelli to operate its business in the leased premises. After the actions were consolidated, Frittelli amended its complaint to assert four claims against respondents, namely, breach of the lease, breach of the implied covenant of quiet enjoyment (Civ. Code, § 1927), negligence, and rescission.

Respondents filed a motion for summary judgment, contending that Frittelli's claims failed in view of the general exemption for lessor liability in paragraph 8.8, as well as the limitations on the recovery of damages in paragraph 2.12. The trial court granted the motion and entered judgment in respondents' favor.


Frittelli contends that summary judgment was improperly granted. For the reasons explained below, we disagree.

A. Standard of Review

"A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail. [Citation.]" (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) In moving for summary judgment, "all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action -- for example, that the plaintiff cannot prove element X." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) Alternatively, the defendant may show the existence of a "'complete defense.'" (Id. at p. 850, quoting Code of Civ. Proc., § 473, subd. (o)(2).)

Although we independently review the grant of summary judgment to determine the existence of triable issues of fact (Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819), our inquiry is subject to two constraints. First, we assess the propriety of summary judgment in light of the contentions raised in Frittelli's opening brief. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125-126). Second, to determine whether there is a triable issue, we review the evidence submitted in connection with summary judgment, with the exception of evidence to which objections have been appropriately sustained. (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 711; Code Civ. Proc., § 437c, subd. (c).) Here, respondents raised numerous evidentiary objections to Frittelli's showing, which the trial court sustained in part and overruled in part. Because Frittelli does not attack the rulings on appeal, it has forfeited any contentions of error regarding them. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1181.)*fn1

B. Frittelli's Claims

In assessing the propriety of summary judgment, we look first to Frittelli's allegations in the operative complaint, which frame the issues pertinent to a motion for summary judgment.*fn2 (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662 ["'"[I]t is [the complaint's] allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading. [Citation.]"'"].) Here, the operative complaint alleged that Frittelli's business within the shopping center was successful until September 2008, when respondents initiated the remodeling project, which they said would be quickly completed. According to the complaint, the project required scaffolding along the center's facade that impeded customers from seeing and visiting Frittelli's shop; noise and dirt entered the shop; and delays prevented the project's completion until September 2009. The complaint further asserted that the project "completely destroyed [Frittelli's] business."

In connection with Frittelli's claim for breach of the lease, the operative complaint alleged that respondents, through their failure to exercise reasonable care in remodeling the shopping center, contravened the express covenant of quiet enjoyment within the lease and the implied covenant of good faith and fair dealing; furthermore, the complaint alleged that this misconduct was "grossly negligent and/or negligent."*fn3 Similar allegations supported Frittelli's claims for breach of the implied covenant of quiet enjoyment (Civ. Code, § 1927) and negligence.*fn4 Regarding the claim for rescission, the complaint alleged that respondents' breach of the lease was "so material and complete" that Frittelli was entitled to rescind the lease and recover its lease payments and "all damages . . . proximately caused by [respondents'] breach of the lease."

C. Analysis

The principal questions before us concern whether there are triable issues regarding Frittelli's entitlement to damages under the theories alleged in its complaint, in light of the exemption for lessor liability in paragraph 8.8, and other provisions of the lease. In granting summary judgment, the trial court concluded that the exemption shielded respondents from liability for damages for breach of the lease and ordinary negligence, and barred Frittelli's claim for rescission, which was predicated on the lessor's liability for injury and damages from a breach of the lease. Furthermore, to the extent Frittelli asserted a claim for gross negligence, which potentially fell ...

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