Pismo’s of Fresno, LLC v. Villagio Shopping Center, LLC, et al.

(20) Tentative Ruling

Re: Pismo's of Fresno, LLC v. Villagio Shopping Center, LLC, et al. Superior Court Case No. 25CECG04448

Hearing Date: September 10, 2026 (Dept. 403)

Motion: By Villagio Shopping Center, LLC, to Disqualify Counsel

Tentative Ruling:

Demurrer: To sustain the demurrer to the fifth cause of action without leave to amend. To overrule demurrers to all other causes of action. (Code Civ. Proc., § 430.10, subd. (e), (f).)

Motion to Strike: To grant in part and strike FAC ¶ 47 and Prayer for Relief item 5 (punitive damages allegations), but to otherwise deny. (Code Civ. Proc., § 436.)

Explanation:

This is a contract dispute between Villagio Shopping Center, LLC (“Villagio”) and Pismo's of Fresno, LLC (“Pismo’s”) concerning the terms of the parties' commercial real estate lease. Pismo’s alleges that Villagio violated Pismo’s lease by leasing property to Tsukihi Ayce Fresno, Inc. (“TAF”), a sushi restaurant, in violation of section 2.06(b) of the lease:

For so long during the Term of this Lease as Tenant is not in breach of any of its representations, warranties, covenants or obligations set forth herein, but only if and for so long as Tenant’s primary business in the Premises is and continues to be the sale of seafood, steaks and food items flavored primarily with barbecue sauce (the “Exclusive Items”) as its primary use, Landlord shall not enter into a new lease for premises within the Shopping Center in which the tenant thereunder would be permitted to sell or offer for sale, the Exclusive Items as its primary business . . .

The Incidental Sale (as hereinafter defined) of the Exclusive Item in connection with the overall business of another tenant or operator shall not be deemed a violation of this Paragraph 2.06(b). As used herein, “Incidental Sale” shall mean the sale of the Exclusive Item constituting not more than twenty percent (20%) of the gross sales at such tenant’s or operator’s premises.

“Seafood” is an “Exclusive Item.”

Demurrer

First, Second, Fourth, Ninth, and Tenth Cause of Action

The elements of a cause of action for breach of contract are: 1) Plaintiff and Defendant entered into contract; (2) Plaintiff did all, or substantially all of the significant things that the contract required; (3) Defendant failed to do something that the contract 3

required it to do; (4) Plaintiff was harmed; (5) Defendant's breach of contract was a substantial factor in causing Plaintiff's harm. (CACI 303.)

The first cause of action alleges that Villagio breached the Pismo's Lease by allowing TAF to operate a business within the Shopping Center wherein its primary business is for the sale of seafood. (FAC ¶ 21.)

The demurrer relies on FAC ¶ 13, where Pismo’s alleges “that TAF’s lease with VSC contains a notification of the PISMO’S exclusive right to sell seafood as a primary business.” Villagio contends in conclusory fashion that entering into the TAF lease as described in paragraph 13 “is not a breach of the Pismo's Lease,” without elaboration or citation to relevant authorities (a common theme in Villagio’s points and authorities).

However, the FAC alleges that TAF’s primary business is selling sushi, and that Villagio leased space to TAF. That certainly appears to be a breach of section 2.06(b) of the Pismo’s lease, even if Villagio notified TAF of Pismo’s exclusivity provision. In fact, with knowledge of TAF’s sale of sushi, Villagio worked with TAF to change its name so as to not bring attention to the sushi sales, and requested that Pismo’s amend its lease to acknowledge that the sale of sushi would not violate the lease. (FAC ¶¶ 14-16.) The allegations indicate that Villagio was aware that TAF sold sushi as its primary business.

Villagio also argues that Pismo's claim for specific performance is defective. Specific performance of a contract may be decreed whenever: (1) its terms are sufficiently definite; (2) consideration is adequate; (3) there is substantial similarity of the requested performance to the contractual terms; (4) there is mutuality of remedies; and (5) plaintiffs legal remedy is inadequate. (Civ. Code, § 3390, subd. 5 [court may not specifically enforce '[a]n agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable]; Tamarind Lithography Workshop, Inc. v. Sanders (1983) 143 Cal.App.3d 571, 575 [193 Cal. Rptr. 409])" (Blackburn v. Charnley (2004) 117 Cal.App.4th 758, 766.)

Villagio argues that with regard to the phrase "sale of seafood," the terms of the Pismo's Lease are not sufficiently definite, claiming that the meaning of the term “seafood” is up for debate and disputed. However, Villagio articulates no basis for any such debate or dispute.

Villagio goes on to argue that specific performance is not available because the Pismo's Lease itself proscribes an adequate legal remedy to Pismo's. Section 2.06 (b) of the Pismo's Lease states:

If Landlord is in breach of its obligations under Paragraph 2.06(b) for more than thirty (30) days after it receives written notice from Tenant of such breach, for so long as such breach thereafter is continuing Minimum Annual Rent shall abate and Tenant shall pay in lieu of Minimum Annual Rent an amount equal to four percent (4%) of Net Sales...and, if such abatement should continue uninterrupted for a period in excess of thirty (30) days, Tenant thereafter (but only while such breach is continuing) may give written notice to Landlord of Tenant's intention to cancel and terminate this Lease pursuant to this Paragraph 2.06(b), in which even this Lease shall 4

terminate as of the date that is thirty (30) days after Landlord shall have received such written notice unless Landlord shall have cured such breach prior to the date on which this Lease would terminate. (FAC Exh. 1, § 2.06(b).)

Pismo’s correctly points out that this argument is refuted by section 22.11 of the Lease, which provides: “No remedy or election hereunder shall be deemed exclusive but shall, whenever possible, be cumulative with all other remedies at law or in equity.” (FAC Exh. 1, § 22.11.) The contract must be read as a whole, and this provision does provide for remedies other than those specifically provided for elsewhere in the Lease. Additionally, when remedies are pled in the alternative, a demurrer should not be sustained as to one over the other. (See Rogers v. Davis (1994) 28 Cal.App.4th 1215, 1218, fn. 2 [“performance and damages are simply alternative remedies for breach of contract.”])

The court intends to overrule the demurrer to the first cause of action. With regards to the Second, Fourth, Ninth, and Tenth causes of action Villagio references the above arguments without further elaboration or discussion. The demurrers to those causes of action are therefore overruled for the same reasons.

Fifth Cause of Action

Pismo’s opposition states that it has dismissed this cause of action as to Villagio only. No such dismissal has been filed. Accordingly, the court intends to sustain the demurrer without leave to amend for the reasons stated in the moving papers.

Sixth Cause of Action

The demurrer to the cause of action for injunctive relief is brought on the ground that it “fails to state the type of injunctive relief that Pismo's seeks,” rendering the cause of action uncertain. To the contrary, the FAC alleges that “VSC should be ordered to comply with Lease ¶ 2.06(b).” (FAC ¶ 49.)

Villagio points out contradictory allegations in that Pismo's alleges that it has no adequate remedy at law, yet it claims to be entitled to lost profits. (FAC ¶ 52.)

As the opposition points out, California’s general pleading standards allows for pleading in the alternative. (See Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402 [“the modern practice allows that party to plead in the alternative and make inconsistent allegations.”].) A damages award does not preclude additional relief in the form of injunctive relief when a legal remedy cannot adequately address prospective, hard to quantify future harm, which Pismo’s claims to be the case here. (See Grail Semiconductor, Inc. v.

Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 800 [the adequacy of the legal remedy not the mere existence of a damages award is controlling].) Whether this is the case is not something not properly resolved at the pleadings stage. Pismo’s may be required to elect its remedy at a future point, but for now the cause of action may stand.

Additionally, Villagio contends that Section 2.06(b) of the Pismo's Lease provides Pismo's sole remedy in the event there is an actual breach for the sale of the Exclusive Items within the Pismo's Lease. (FAC, Exhibit l, Pismo's Lease, Section 2.06(b). Again, the demurrer ignores the cumulative remedies provision of section 22.11. The court intends to overrule the demurrer.

Motion to Strike

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading, (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.)

Apparently conceding the merits of the motion with regards to the punitive damages allegations, Pismo’s does not address the issue in its opposition. The motion to strike punitive damages allegations is granted for the reasons set forth in the moving papers.

Villagio also moves to strike the prayer for jury trial, as under section 22.29 of the Lease, both Villagio and Pismo's waived their right to a jury trial. (FAC Exh. l, § 22.29.) Once again Villagio cites to no authority whatsoever in support of this part of the motion to strike.

Pismo’s contends that the waiver is unenforceable. Article I, § 16 of the California Constitution holds, “Trial by jury is an inviolate right and shall be secured to all ... In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.” (Emphasis added.) A predispute agreement that any lawsuit between parties would be adjudicated in a court trial, and not by jury trial, is unenforceable. (See Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 951–956.) Villagio’s reply does not address the issue. This part of the motion should be denied.

Villagio next argues that the request for injunctive relief must be stricken for the same reason stated in the demurrer. The motion to strike should be denied for the same reasons as noted above.

The Court notes some frustration that both parties abandoned positions set forth in the moving papers, opposition, and reply. While motion practice may serve to refine the parties’ positions, the law (and the Court) prefers that such refinement occur during the meet-and-confer process, thereby narrowing the issues presented for resolution and promoting judicial economy.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order

adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: SMC on September 9, 2026. (Judge’s initials) (Date)

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