A A A 
Loading
Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Stephen Beck vs 1260 BB Property LLC et al

Case No: 1371485
Hearing Date: Mon Jan 27, 2014 9:30

Nature of Proceedings: Motion for Summary Judgment/Adjudication

Case: Stephen Forrest Beck v. 1260 BB Property, LLC, et al., Case No. 1371485 Hearing Date: January 27, 2014 Motion: Motion of Defendants for Summary Judgment or, Alternatively, for Summary Adjudication Tentative Ruling: As set forth herein, the motion of defendants for summary adjudication of the first cause of action, and for summary judgment, is denied because of the existence of triable issues of fact. The motion of defendants for summary adjudication of the second cause of action is denied as moot. Discussion: Plaintiff Stephen Forrest Beck (sometimes referred to herein as plaintiff or Beck) is the son of Col. John Nelson Beck and Katherine Beck (Col. and Mrs. Beck). (Beck decl., ¶ 2.) Col. and Mrs. Beck were members of the Coral Casino Beach and Cabana Club (Coral Casino), a non-equity private club, since prior to 1980. (Beck decl., ¶ 2; Speer decl., ¶ 4 & exhibit B, § 1.2.) Among the amenities of the Coral Casino are a number of poolside cabanas. (Beck decl., ¶ 3.) The Beck family has for many years leased cabana no. 16 (the Cabana) on a month-to-month basis. (Beck decl., ¶ 4, 13.) Col. Beck did not have a written membership agreement granting him the right of exclusive use of the Cabana. (Speer decl., ¶ 6.) (Note: Although plaintiff disputes the nature of Col. Beck’s rights to the Cabana, plaintiff presents no evidence of a written agreement with Col. Beck as to those rights.) In or about July 2003, Col. and Mrs. Beck contacted Kevin Speer, the manager of the Coral Casino, to request that plaintiff replace Col. Beck as a member of the Coral Casino. (Beck decl., ¶ 7.) In May 2005, plaintiff became an individual member of the Coral Casino as part of the Legacy Membership Program. (Plaintiff’s Opposition Separate Statement [PSS], undisputed fact 27.) In becoming a member, plaintiff executed an individual membership agreement. (PSS, undisputed fact 30.) The individual membership agreement does not provide for plaintiff to have any rights to exclusive use of the Cabana. (PSS, undisputed fact 31.) In August 2005, Col. Beck resigned from the Coral Casino. (PSS, undisputed fact 23.) Col. Beck’s resignation letter stated, in part: “I hereby cancel my reservation and use of any lockers, dressing rooms, and cabanas at the Club for periods following the Resignation Date.” (PSS, undisputed fact 24.) The Coral Casino Rules and Regulations in effect in 2005, when plaintiff became a member, state in capital letters: “Memberships are not assignable or transferable, and confer no right, title or proprietary right, title interest whatsoever in the assets or properties of neither the Coral Casino nor any voice in its management or affairs.” (PSS, fact 26; Speer decl., ¶ 8 & exhibit B, § 2.1.) (Note: The text as quoted in the PSS is slightly different than the text set forth in the exhibit. The exhibit text is quoted here without alteration except for the capitalization.) The Coral Casino Rules and Regulations in effect in 2005 also provide in section 8.3, entitled “Cabanas”: “Members that rent cabanas on a monthly basis are allowed two complimentary guests daily on summer weekends and holidays, and four guests on weekdays.” (Speer decl., exhibit B, § 8.3.) According to Speer, Speer never promised plaintiff that plaintiff would have exclusive use rights to the Cabana. (Speer decl., ¶ 5.) According to plaintiff, Speer agreed that plaintiff would continue to lease the Cabana on a monthly basis and be entitled to the exclusive use of the Cabana thereafter for so long as plaintiff maintained his membership in good standing. (Beck decl., ¶ 10.) According to Speer, Speer lacked authority to promise exclusive use rights to the Cabana. (Speer decl., ¶ 5.) According to plaintiff, Speer had at least ostensible authority to do so. (Speer decl., ¶ 2; Beck decl., ¶ 6.) Defendant 1260 BB Property, LLC (BB Property), is the owner of the Coral Casino. (Speer decl., ¶ 2.) On September 3, 2010, plaintiff filed his original complaint in this action. The operative complaint, the second amended complaint (SAC), asserts two causes of action: (1) breach of contract (specific performance); and (2) interference with contractual relationship. The first cause of action is asserted only against defendant BB Property. The second cause of action is asserted only against defendants Greg Rice and Karen Earp. Defendants filed this motion for summary judgment or alternatively for summary adjudication on June 1, 2011. The motion seeks summary adjudication of each cause of action in addition to summary judgment. The motion was originally set for hearing on August 15, 2011. The parties entered into a long series of stipulations to continue this motion, accounting for the multi-year delay in having the motion heard. On February 14, 2012, plaintiff requested, and the Clerk of the Court entered, dismissal of this action, with prejudice, against defendants Rice and Earp. This dismissal renders moot that part of defendants’ motion for summary adjudication or summary judgment as to the second cause of action and defendants Rice and Earp. The only remaining claim in the SAC is the first cause of action for breach of contract against BB Property. Plaintiff opposes the motion asserting that triable issues of fact exist precluding summary adjudication or summary judgment. Analysis: “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) There is no obligation on the opposing party to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element necessary to sustain a judgment in his favor. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468.) “But other principles guide us as well, including that ‘[w]e accept as true the facts … in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.’ [Citation.] And we must ‘“view the evidence in the light most favorable to plaintiff[] …’ and “liberally construe plaintiff['s] evidentiary submissions and strictly scrutinize defendant['s] own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff['s] favor.”’ [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254.) “‘A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.’ [Citation.]” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1367, emphasis omitted.) A moving party may meet its initial burden on summary judgment by negating an essential element of plaintiff’s cause of action. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.) Here, defendants argue that they have conclusively negated the element of the existence of a contract. (Notice of Motion, p. 1.) Defendants argue that no contract exists because (1) Col. Beck did not have contract rights to the Cabana to pass on to plaintiff and (2) Speer did not, and could not, enter into a contract with plaintiff for exclusive use of the Cabana. In opposition to the motion, plaintiff points out that “No part of the Breach of Contract claim at issue in this motion involves any contention that Col. Beck had any right to transfer the use of Cabana No. 16, or that Col. Beck in fact attempted to make such a transfer.” (Opposition, at p. 5.) The court will accept that as a concession for purposes of this motion that plaintiff does not claim any contract rights by assignment or otherwise derivative of the contract rights of Col. and Mrs. Beck. Instead, plaintiff asserts that his core claim is based upon a contract directly between plaintiff and BB Property, through its agent Speer, as to the rights to use the Cabana. In reply, defendants assert that plaintiff’s argument based upon a direct contract is contrary to the allegations in the SAC. “The complaint limits the issues to be addressed at the motion for summary judgment. The rationale is clear: It is the allegations in the complaint to which the summary judgment motion must respond.” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258.) However, plaintiff’s contract theory asserted in opposition to this motion is within the scope of the allegations of the SAC. The SAC alleges a contract “whereby Plaintiff became a member of the [Coral] Casino Club with exclusive use rights to Cabana No. 16, to continue for so long as Plaintiff maintained his membership and paid the appropriate dues/ charges for his general membership, as well as the additional extra monthly fees for the exclusive use of Cabana No. 16, as billed.” (SAC, ¶ 13.) Thus, the contract alleged is the same as the contract asserted in opposition. (Beck decl., ¶ 10.) The formation of this contract is alleged alternatively in the SAC as derivative of the contract rights (i.e., membership) of Col. Beck (SAC, ¶ 5) and as being created individually by a separate agreement between plaintiff and BB Property (SAC, ¶ 6). Defendants present no evidence, such as contention discovery, that plaintiff has limited the contract upon which plaintiff bases his breach of contract action to the contract rights derivative of the rights of Col. Beck. Because the separate contract theory is asserted by plaintiff in the SAC, plaintiff may properly assert the existence of triable issues of fact as to that theory in opposition to this motion. The evidence presented by defendants relating to the rights of members of the Coral Casino does not negate the existence of the contract asserted by Beck. The Rules and Regulations, despite their ungrammatical passages, are clear that a member does not have any right to use or to rent the Cabana, or any cabana, by virtue of membership. This is not disputed by Beck. The fact that a member, solely by virtue of membership, has no such right, however, does not imply that the member could not acquire such a right by a separate contract. The Rules and Regulations expressly refer to “members that rent cabanas on a monthly basis.” Rental of cabanas on a monthly basis presupposes the existence of a legal relationship by which a member rents a cabana from the party with superior rights to use of the facilities at the Coral Casino, namely, BB Property. The Rules and Regulations do not provide any constraints on the terms of such rental. The documentary evidence presented by defendants does not establish that the use agreement alleged by Beck could not exist. On the other hand, Speer denies having made an agreement with Beck for the use of the Cabana. (Speer decl., ¶ 5.) This evidence negates the existence of the contract alleged by Beck and meets defendants’ initial burden on summary judgment. “Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff … 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, subd. (p)(2).) In opposition to the motion, Beck disputes Speer’s categorical denial, and declares that Speer made the alleged promises. (Beck decl., ¶ 10.) This dispute as to whether Speer ever made the promises constitutes a triable issue of fact precluding the granting of summary adjudication or summary judgment. (See Code Civ. Proc., § 437c, subd. (c).) There is also a triable issue of fact of the related issue of Speer’s authority to make a contract. Speer declares that he was not authorized to make the contract alleged by Beck. (Speer decl., ¶ 5.) On the other hand, Speer also declares that he is the manager of the Coral Casino and an agent of BB Property. (Ibid.) Beck declares that Speer was the manager of the Coral Casino who told Beck that, as manager, he had complete authority over the rentals of cabanas. (Beck decl., ¶ 6.) There is thus a factual dispute over whether Speer had actual authority to enter into the contract alleged by Beck. (See Garlock Sealing Technologies, LLC v. NAK Sealing Technologies Corp. (2007) 148 Cal.App.4th 937, 965 [“existence of an agency relationship is a factual question for the trier of fact”].) Alternatively, Beck has provided sufficient evidence to create a triable issue of fact as to whether Speer had ostensible authority to enter into the contract, regardless of his actual authority. (See Walker v. Signal Companies, Inc. (1978) 84 Cal.App.3d 982, 999 [existence of ostensible agency is a question of fact that may be implied from the circumstances].) In reply, defendants make a number of legal arguments why the oral contract asserted by plaintiff is insufficient to support his claim for specific performance, including, lack of consideration, lack of specificity, termination rights of an indefinite rental, violation of the statute of frauds, and lack of equity. In defendants’ notice of motion, defendants state their grounds for summary adjudication of the first cause of action as: “Issue 1—The first cause of action for specific performance fails because there is no contract between 1260 BB and Plaintiff Beck granting Beck exclusive use rights to Cabana No. 16. [¶] Plaintiff Stephen Beck sues 1260 BB alleging there is a contract granting Plaintiff exclusive use rights of Cabana No. 16 at the [Coral Casino]. In fact, no such contract exists. There is no triable issue of fact. Consequently, summary adjudication on the first cause of action should be granted as a matter of law.” (Notice, at p. 1, capitalization and emphasis altered.) Thus, the only issue raised in the notice of motion as to the first cause of action is the existence of the contract. “A motion for summary adjudication tenders only those issues or causes of action specified in the notice of motion, and may only be granted as to the matters thus specified. The movant must ‘state[] specifically in the notice of motion and … repeat[], verbatim, in the separate statement of undisputed material facts,’ ‘the specific cause of action, affirmative defense, claims for damages, or issues of duty’ as to which summary adjudication is sought. [Citations.] The motion must be denied if the movant fails to establish an entitlement to summary adjudication of the matters thus specified; the court cannot summarily adjudicate other issues or claims, even if a basis to do so appears from the papers.” (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 743-744.) Because the arguments raised in reply address issues and defenses other than the existence of the contract and were not raised in the notice of motion, these reply arguments cannot be used as a basis for summary adjudication in this motion. Moreover, the existence of the contract is set forth as a separate statement fact supporting defendants’ motion: “There was no cabana right that was offered or transferred to Mr. Beck.” (Defendants’ Separate Statement, fact 32.) “‘[T]he separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!’” (Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at p. 252, quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 10:95.1, p. 10-35 (rev. # 1, 2009).) As discussed above, a triable issue of fact is raised as to this separate statement of fact. The existence of these, and other, triable issues of fact preclude summary judgment or summary adjudication. Accordingly, the court will deny defendants’ motion for summary adjudication as to the first cause of action and for summary judgment. As noted earlier, all defendants against whom the second cause of action had been asserted have been dismissed with prejudice. Defendants’ motion for summary adjudication as to the second cause of action will be denied as moot. In various locations in plaintiff’s opposition papers, plaintiff appears to make objections to defendants’ evidence. Plaintiff has not complied with Rules of Court, rule 3.1354(b), by failing to present these objections in the proper form. The court therefore does not rule on plaintiff’s objections. Defendants have filed evidentiary objections which the court rules upon as follows: Objections 5, 7, and 13 are sustained. Objections 2, 3, 4, 6, 8, 9, 10, 11, 12, 14, and 15 are overruled. Objection 1 is sustained as to the first sentence (“As with all ….”) and is overruled as to the second sentence (“I have never seen ….”).