Park v. Beverly OB & GYN Medical Center CA2/8

Filed 5/24/23 Park v. Beverly OB & GYN Medical Center CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
GYOUNG JAE PARK AND YOON B316758
HEE CHOE LIFE ESTATE
TRUST, BY FELIPA R. Los Angeles County
RICHLAND AS ATTORNEY IN Super. Ct. No.
FACT FOR TRUSTEES HANNAH 20STCV24733
PARK AND DAVID PARK,
Plaintiff and Respondent,
v.
BEVERLY OB & GYN MEDICAL
CENTER, INC.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Yolanda Orozco, Judge. Affirmed.
David S. Kim & Associates, David S. Kim, Todd A. Fuson;
The Milner Firm and Timothy V. Milner for Defendant and
Appellant.
Haney & Shah, Steven H. Haney, Kenneth W. Baisch;
Richland Associates and Felipa R. Richland for Plaintiff and
Respondent.
____________________
A landlord-tenant dispute culminated in summary
judgment for the landlord on its sole claim for declaratory relief.
The landlord asked the trial court to declare a commercial lease
amendment invalid. The tenant failed to raise a triable issue of
material fact as to the amendment’s validity. We affirm.
Statutory citations are to the Code of Civil Procedure.
The tenant is Beverly OB & GYN Medical Center, Inc.,
which is owned by Dr. Edward Ahn and which we call Tenant.
Ahn used to own the building through another company.
He leased space in the building for his medical practice under a
2011 lease. This lease had a term of five years and provided for
three five-year options to extend the lease.
Ahn then sold the building to Sang Kim (through Kim’s
company) and continued to lease space in the building.
Ahn and Kim amended the lease twice. The first
amendment, among other things, reduced the extension options
from three to one. Having just one option was Kim’s focus—the
“most important thing”—in negotiating this amendment.
The second lease amendment is the crux of this case. We
return to it shortly.
Kim sold the building in 2013. Eventually it was
transferred to a trust, Gyoung Jae Park and Yoon Hee Choe Life
Estate Trust, which is the current Landlord.
According to Landlord’s complaint, Tenant claimed the
second lease amendment afforded it two five-year options to
extend the lease, which allowed it to stay in the building until
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2028. Landlord maintains this version of the amendment—which
the parties refer to as Exhibit A—is forged and fraudulent and
the real second amendment provides just one option, ending in
2023. The complaint says Landlord notified Tenant of the
expiration date and its intent not to renew the lease, but Tenant
sought to extend the lease through 2028. Landlord accordingly
sued, seeking a declaration that Tenant’s version of the second
amendment (Exhibit A) is invalid.
Landlord moved for summary judgment on this issue,
backed by Kim’s testimony. Kim maintained the second
amendment he signed had just one five-year option, and his
intent was to grant Ahn only one option. He denied the signature
on Exhibit A was his, confirmed “I know for sure that this
[signature] is not mine” and testified he did not sign a document
with two options. He would not have agreed to give Ahn two
options unless he were crazy, and he was not crazy, he testified.
Landlord also supplied the testimony of a “court qualified
Certified Forensic Document Examiner.” This expert had studied
the lease amendments and drafts, including the documents from
Kim’s file for the property. She opined Exhibit A was an altered
document; it was a compilation of various drafts of the second
amendment; and it included an image of Kim’s signature from a
different document. The expert concluded Kim had not signed
Exhibit A.
Ahn supplied a declaration opposing Landlord’s motion, in
which he states: “I believe the true, operative Second
Amendment is the one presented as Plaintiff’s Exhibit A, with
two renewal terms.” Ahn further declared he is “unlikely to even
want to extend [the] Lease past the termination date in 2023.”
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Ahn devotes much of his declaration to describing the ways in
which Landlord has oppressed him.
The trial court granted Landlord’s motion and later entered
judgment in Landlord’s favor.
We independently review the summary judgment decision
and apply the familiar standard. (See Bacoka v. Best Buy Stores,
L.P. (2021) 71 Cal.App.5th 126, 132.) Our independent review
shows summary judgment was proper.
Tenant offers three reasons why this result is wrong:
1) there were triable issues of material fact regarding Exhibit A’s
validity, 2) Landlord failed to negate all of Tenant’s affirmative
defenses, and 3) there was no actual controversy. Each argument
is misguided.
First, the testimony of Kim and Landlord’s expert
established Exhibit A was invalid. Kim further established the
operative second amendment was another exhibit, Exhibit E-5.
Ahn did not dispute anything these two witnesses said. Nor did
Ahn even say he signed Exhibit A. Instead, he simply offered his
belief this exhibit was the “true” amendment. But a belief is
insufficient to ward off summary judgment. (King v. United
Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 [litigant’s
subjective beliefs do not create a genuine issue of fact]; see also
Mackey v. Board of Trustees of Cal. State University (2019) 31
Cal.App.5th 640, 656 [“Although a trial court does not ‘try’ the
case or weigh the evidence at summary judgment, it does
consider the competency of evidence presented.”]; id. at p. 657
[declarations must not include opinion].) Tenant thus failed to
raise a triable issue of fact regarding the validity of its preferred
lease amendment.
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Second, Landlord did not have to negate the affirmative
defenses Tenant raised in its answer. (Oldcastle Precast, Inc. v.
Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554,
564–565.) Under section 437c, subdivision (p)(1), a plaintiff
moving for summary judgment has the burden of establishing its
cause of action, which Landlord did first by showing competing
amendments with different options and then by establishing
Exhibit A was a fake and Exhibit E-5 was the operative
amendment. (See § 1060 [outlining the right of action for
declaratory relief].) This shifted the burden to Tenant, who had
to raise a triable issue of material fact as to the cause of action or
a defense. (See § 437c, subd. (p)(1).)
Tenant failed to raise a triable issue, as explained above.
Tenant argues it established Landlord’s unclean hands by
outlining its bad acts as a landlord. But the defense of unclean
hands requires misconduct directly related to the transaction
giving rise to the lawsuit. (Salas v. Sierra Chemical Co. (2014)
59 Cal.4th 407, 432; see also DD Hair Lounge, LLC v. State Farm
General Insurance Co. (2018) 20 Cal.App.5th 1238, 1246
[misconduct must relate directly to the “cause at issue”].) The
relevant transaction here concerned the second amendment
negotiated between Tenant and Kim. Landlord’s acts came later
and are irrelevant to that negotiation and the resulting lease
amendment.
Tenant offered no argument on any other defense but
pointed to some of the 29 affirmative defenses raised in its
answer. A litigant cannot rely on its unverified pleadings to
overcome summary judgment, however. (§ 437c, subd. (p)(1).)
Nor was it proper for Tenant to discuss new developments
between the parties that lack record support.
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Third and finally, Ahn’s own declaration establishes there
was an actual controversy over the operative lease amendment
and the parties’ rights under the agreement. This was a proper
subject for declaratory relief. (See § 1060; see also Leonard
Carder, LLP v. Patten, Faith & Sandford (2010) 189 Cal.App.4th
92, 98–99 [party need not have instituted a legal claim under an
agreement for an actual controversy to exist].)
The controversy was real. Ahn maintained Exhibit A was
the right amendment and he had two renewal options under it,
which meant he could stay in the building until 2028. Landlord’s
lawsuit maintained the real amendment had just one option, so it
could cut ties with Tenant in 2023. Ahn refused to say he would
leave willingly in 2023. His declaration did not dispel the
controversy. (See Babb v. Superior Court (1971) 3 Cal.3d 841,
848 [declaratory relief operates prospectively, in the interests of
preventive justice, to set controversies at rest before they lead to
invasions of rights or commissions of wrongs].)
DISPOSITION
We affirm the judgment and award costs to the respondent.
WILEY, J.
We concur:
GRIMES, Acting P. J.
VIRAMONTES, J.
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