Tsemetzin v. Coast Federal Savings & Loan Assn.
| Citation | 57 Cal.App.4th 1334,67 Cal.Rptr.2d 726 |
| Decision Date | 25 September 1997 |
| Docket Number | No. B097482,B097482 |
| Court | California Court of Appeals |
| Parties | , 97 Cal. Daily Op. Serv. 7682, 97 Daily Journal D.A.R. 12,311 Steve TSEMETZIN, Plaintiff and Appellant, v. COAST FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant and Respondent. |
Murphy and Gold, Howard Gold and Michael Anatole, Calabasas, for Plaintiff and Appellant.
Dickson, Carlson & Campillo, Aaron M. Peck, Santa Monica, LaFollette, Johnson, DeHaas, Fesler & Ames, Steven J. Joffe, Los Angeles, for Defendant and Respondent.
In this case the plaintiff, Steven Tsemetzin, appeals from a summary judgment entered in favor of the defendant Coast Federal Savings and Loan Association (hereafter, "Coast Federal"). Plaintiff seeks to recover disputed and unpaid rental arrearages allegedly due under a written lease agreement back to 1982. Coast Federal claims that the statute of limitations has long since run on all of plaintiff's claims and that a repudiation and termination of the lease obligations of Coast Federal's assignee by the Resolution Trust Corporation ("RTC") also extinguished its liability.
While we agree that plaintiff cannot expand the limitations period by characterizing Coast Federal's lease obligations as "open book" items, we do conclude that plaintiff is at least entitled to seek recovery of the unpaid arrearage for the four years preceding the filing of the complaint. We also conclude that the termination of the lease obligations of Coast Federal's assignee by the RTC can have no legal impact on Coast Federal's continuing lease obligations which were expressly assumed under the terms of both the lease and the assignment. We therefore reverse and remand with directions.
On or about March 28, 1980, plaintiff entered into a written lease agreement with Coast Federal whereby plaintiff leased to Coast Federal certain real property in Escondido, California, together with a building to be constructed thereon of approximately 11,000 square feet. Under the terms of the lease, Coast Federal was required to pay to plaintiff a ground lease rental plus, upon completion of the building, an additional rental on the building. The lease did not provide for a specific amount of rental, but rather set out a formula for calculating it which included: (1) ground rental adjustments based upon the actual square footage of the land, (2) building rental calculations which depended upon the amount of the actual cost of construction and a 13% return which plaintiff was to realize upon the costs of construction of the building and (3) provisions for rental adjustments every five years based upon changes in the consumer price index ("CPI").
By 1982, a dispute had arisen between plaintiff and Coast Federal over the amount of rent which was required to be paid. Plaintiff contended that calculation of the ground lease rental was to be based upon a total land area (65,567 square feet) which was different than that claimed by Coast Federal 49,278 square feet). In addition, the parties disagreed as to the commencement date for the five-year CPI rent escalations. This dispute resulted in the assertion by plaintiff that Coast Federal was in breach of the lease because it had failed to pay the full amount of rental due. Plaintiff first asserted such claim in 1982 and he pressed it continuously thereafter in repeated oral and written demands to Coast Federal.
Although it is not entirely clear, the record appears to reflect that Coast Federal acknowledged some of plaintiff's rent calculations by making partial payments, from time to time, on the claimed arrearages. For reasons which are not reflected in the record, plaintiff did not file this action to recover the unpaid rental until April 21, 1993. 2
In January 1989, Coast Federal, with plaintiff's written consent, assigned the lease to Home Federal Savings and Loan Association (hereafter, "Home Federal"). The original lease, as it was amended in 1981, stated: (Italics added.)
Although the terms of the lease do not appear to have required it, plaintiff also executed a separate specific written consent to the assignment of the lease on January 21, 1989. By the terms of that assignment Coast Federal also agreed to the following provision: "This Assignment shall not act as a release of the Assignor (i.e., Coast Federal) from liability for the continued performance of the terms and provisions of the LEASE; therefore, Assignor shall remain fully liable for performance of all of the obligations of Lessee under said LEASE." (Italics added.)
On July 6, 1992, the Office of Thrift Supervision determined that Home Federal had become insolvent, ordered it to close and placed it into receivership with the RTC as receiver. On October 2, 1992, the RTC, acting under the authority granted to it under 12 U.S.C. § 1821(e)(1), 3 repudiated, disaffirmed and terminated the lease and all amendments and supplements thereto, effective as of January 31, 1993. 4
As already noted, plaintiff commenced this action on April 21, 1993. After some discovery, Coast Federal filed a motion for summary judgment on July 21, 1995. Based on the factual circumstances summarized above, which plaintiff did not dispute, Coast Federal contended, in effect, that (1) plaintiff's claim for the escalated rental payments accruing on or before January 31, 1993, was barred by the applicable statute of limitations since plaintiff had known of Coast Federal's alleged breach (at least in part) for eleven years before bringing suit and (2) plaintiff's claim for rent accruing after January 31, 1993, was barred by virtue of the RTC's repudiation and termination of the lease.
Plaintiff opposed the motion, arguing the statute of limitations had not run on his claim for rental arrearages. Plaintiff also argued that since Coast Federal had made some partial payments on the claimed arrearage and had exchanged correspondence with plaintiff acknowledging that a dispute existed as to the amount of "unpaid" rentals due, an "open book" account had been established between them 5 and thus the statute of limitations did not commence to run until the date of the last item. With respect to rentals accruing after January 31, 1993, plaintiff argued that Coast Federal had agreed to be responsible for performance of the lease and therefore its liability was unaffected by the RTC's repudiation of the lease. Plaintiff argued such action affected only the liability of Home Federal.
After hearing and considering argument on the issues raised, the trial court, on October 12, 1995, granted Coast Federal's motion and entered judgment in its favor. Plaintiff has prosecuted this timely appeal.
In their briefs, the parties essentially argue two issues:
(1) Can plaintiff, although he did not plead such a cause of action, successfully claim that he has raised an issue of fact as to whether (2) Did the repudiation of the lease by the RTC, based upon its discretionary determination that (a) the lease was burdensome to Home Federal and (b) its repudiation would promote the orderly administration of Home Federal's affairs, also work a termination of the continuing lease obligations undertaken by Coast Federal?
an "open book" account existed between plaintiff and Coast Federal which would postpone the commencement of the statute of limitations?
There is a third issue which we believe is also raised by this record, but which was not originally argued by the parties: 6 Are the periodic rental payments due under the lease severable contract obligations, thus allowing plaintiff to recover for unpaid rentals accruing within the four year limitation period immediately preceding the filing of his complaint?
Summary judgment is granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Villa v. McFerren (1995) 35 Cal.App.4th 733, 741, 41 Cal.Rptr.2d 719.) After examining documents supporting a summary judgment motion in the trial court, this court independently determines their effect as a matter of law. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579, 37 Cal.Rptr.2d 653.) The moving party bears the burden of establishing, by declarations and evidence, a complete defense to plaintiff's action or the absence of an essential element of plaintiff's case. (Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858, 62 Cal.Rptr.2d 16, Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1726-1727, 22 Cal.Rptr.2d 781; Code Civ. Proc., § 473c, subd. (o).) The moving party must demonstrate that under no hypothesis is there a material factual issue requiring a trial. (Flowmaster, Inc. v. Superior Court (1993) 16 Cal.App.4th 1019, 1026, 20 Cal.Rptr.2d 666, clarified in Romero v. American President Lines, Ltd. (1995) 38 Cal.App.4th 1199, 1202-1203, 45 Cal.Rptr.2d 421.)
When the moving party makes that...
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