Aisle 3 Concepts, LLC vs. BMS Scolop, Inc.

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 11/06/2025 Hearing on Motion for Summary Judgment in Department 53

(1) defendant BMS breached the lease agreement by terminating early and failing to pay rent and (2) defendants Brian and Maryann Simmons breached their guaranty by failing to pay the sums owed by defendant BMS under the lease.

As support for summary adjudication of the first cause of action against defendant BMS for breach of the lease agreement, plaintiff A3C relies on Undisputed Material Fact (“UMF”) Nos. 1-44 and as support for summary adjudication of the second cause of action against defendants Brian and Maryann Simmons for breach of their guaranty, plaintiff A3C offers UMF Nos. 45-96. The Court notes that a number of plaintiff’s UMFs advanced in connection with the first cause of action do little more than quote various provisions of the lease agreement (UMF Nos. 1-13); others purport to summarize the parties’ dispute over the presence of mold at the leased premises and plaintiff’s subsequent attempts at resolution of same (UMF Nos. 15-27); a handful describe plaintiff A3C’s efforts to re-let the premises (UMF Nos. 30-37); and the remainder essentially relate to plaintiff’s claimed damages after accounting for the past and project lease payments from the new tenant and certain costs associated this new lease (UMF Nos. 38-44).

The Court finds no single UMF which purports to provide the net total of plaintiff A3C’s damages but according to the moving points & authorities, the net total of damages is $127,318.40 exclusive of interest at the contractual rate of 10% per year. (Mov. MPA, p.5:2-5; p.6:25-26.) The UMFs offered in support of summary adjudication of the cause of action for breach of the guaranty appear to be the same but also include a recitation of several of the guaranty’s provisions (UMF Nos. 45-51).

Opposition. The Court finds no timely opposition or other objection from defendants to the present motion by plaintiff A3C. However, on 10/24/2025, defendants did file a document entitled “Request for Relief to File Late Opposition to Motion for Summary Adjudication Pursuant to California Rules of Court Rule 3.1590(m),” in which it is argued that “Defendants’ counsel’s senior paralegal misapplied the calendaring event in their calendaring program inadvertently” and subsequent “email exchanges with Plaintiff’s counsel noted [Defendants’ counsel] was working under the wrong assumption on the filing deadline” but “Plaintiff’s counsel remained silent.” Accordingly, “Defendants now seek relief under California Rules of Court, Rule 3.1590(m) to file their Opposition late due to this excusable neglect to the Motion for Summary Adjudication.” However, defendants do not appear to have filed (or even reserved a hearing date for) any noticed motion seeking relief for the failure of defendants to file an opposition (or ex parte application seeking to shorten time on such a motion) based upon any provision of law relative to the present motion for summary adjudication.

Additionally, on 11/3/2025 and just two (2) days before the tentative ruling on this matter is to be posted, defendants filed several additional documents labeled as their opposition to the present motion for summary adjudication. These purported opposition papers were not filed and served in conformity with Code of Civil Procedure

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 11/06/2025 Hearing on Motion for Summary Judgment in Department 53

§437c(b)(2)’s deadline for opposition papers (i.e., 20 days prior to the hearing date) nor did defendants seek or obtain a determination of “good cause” for a different opposition deadline. Moreover, because defendants’ purported opposition papers were filed and served so late as to be well after §437c(b)(4)’s deadline for reply papers (i.e., 11 days prior to the hearing date) as to deprive plaintiff of a meaningful opportunity to prepare a reply and likewise to deny this Court a reasonable opportunity to prepare a meaningful tentative ruling on this matter, the Court declines to consider here the purported opposition papers filed on 11/3/2025.

Standards for Summary Judgment/Adjudication

In ruling on a motion for summary judgment/adjudication, the Court engages in a threestep process. First, the issues framed by the pleadings must be identified since the pleadings themselves define the scope of what may be addressed via a motion for summary judgment/adjudication (FPI Development Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382) and the evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment/adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to such a motion may not create triable issues beyond the scope of the pleadings, nor are they a substitute for filing amended pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)

Next, the Court must determine whether the moving party has met its initial burden of production. Code of Civil Procedure §437c(p)(1) explains that a plaintiff moving for summary judgment/adjudication meets its “burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” This same statutory provision further specifies that only when the moving party has met this initial burden does the burden of production shift to the opposing defendant to “set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” In other words, a party opposing summary judgment/adjudication has no evidentiary burden unless the moving party has first met its initial burden of production. (Binder v.

Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840; see also Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1151-1152; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1085-1086.)

Only where the moving party makes the requisite initial showing does a court need to examine the opposition papers to determine if the latter demonstrate the existence of a triable issue of material fact which precludes summary judgment/adjudication. (Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376; Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) The opposing party must present admissible

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 11/06/2025 Hearing on Motion for Summary Judgment in Department 53

evidence and may not rely upon the allegations or denials of its pleading. (Id.) As noted above, Code of Civil Procedure §437c(p)(1) clarifies that the opposing party must “set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” Additionally, in ruling on the motion, a court must construe the evidence of the opposing party liberally and that of the moving party strictly, resolving any doubts in the opposing party’s favor. (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874; Cortez v. Vogt (1997) 52 Cal.App.4th 917, 925-926; see also, Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376; Brown v. FSR Brokerage, Inc. (1998) 62 Cal.App.4th 766, 773.)

While a summary adjudication motion is treated largely the same as one for summary judgment, there are a few important differences. One of these differences is found in CRC Rule 3.1350(b), which mandates that issues presented for summary adjudication be stated in the notice of motion and repeated verbatim in the separate statement. Another difference is that summary adjudication cannot be granted unless it “completely disposes” of a cause of action, affirmative defense, claim for punitive damages, or question of duty. Code of Civil Procedure §437c(f)(1) provides in its entirety:

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for [punitive] damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for [punitive] damages, or an issue of duty. (Underline added for emphasis.)

Finally, before turning to the specific issues raised by this motion, the Court reminds the parties of the “Golden Rule” of summary judgment/adjudication: “If it is not set forth in the separate statement, it does not exist.” (See, Zimmerman, Rosenfeld v. Larson (2005) 131 Cal.App.4th 1466, 1477 (italics in original).) Moreover, according to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, a moving party’s inclusion of facts in its separate statement effectively concedes each fact’s “materiality,” whether intended or not, and if there is a triable dispute relating to any one of these facts, the motion must be denied. (Nazir, at 252 (citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1).)

That said, the Court now turns to the specific contentions advanced in connection with this motion for summary adjudication.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 11/06/2025 Hearing on Motion for Summary Judgment in Department 53

Request for Judicial Notice

Plaintiff A3C’s request for judicial notice of its own complaint and defendants’ answer to complaint is granted but only for the limited purposes appropriate for judicial notice. (See, Evid. Code §451(a); §452(b)-(d); see also, Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 768 [court may take judicial notice of the existence of court documents but not to the truth of any statements contained therein]; Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145-148; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1569-70.)

Objections to Evidence

The Court finds no written objections to evidence on file.

Discussion

Plaintiff Met Its Initial Burden of Production. The threshold question here is whether the moving papers here are sufficient to satisfy plaintiff A3C’s initial burden of production under Code of Civil Procedure §437c(p)(1) with respect to each cause of action on which summary adjudication is sought. As both causes of action are fundamentally claims for breach of contract, plaintiff is obligated to establish the following elements:

1. The existence of a contract with defendants; 2. Plaintiff’s performance of its contractual obligations and/or an excuse for failing to perform; 3. Defendants failed to perform their material contractual obligations or otherwise acted in violation of the contract’s terms; and 4. Defendants’ conduct proximately caused plaintiff to incur damages. (See, e.g., 1 CACI 303 and authorities cited therein)

The Court finds the moving papers are sufficient to meet plaintiff’s initial burden of production with respect to the first element relative to each cause of action, that is the existence of a contract with defendant BMS along with a second contract with defendants Brian and Maryann Simmons. (See, UMF Nos. 1-14; 45-51.) Whether the moving papers also satisfy plaintiff’s initial burden of production with respect to the second and third elements for each cause of action (i.e., plaintiff’s own performance and/or excuse for not performing; defendants’ failure to perform) is a closer question insofar as UMF Nos. 15-23 and 66-74 effectively admit that initial testing in July 2022 revealed the presence of fungal spores in the leased premises and subsequent testing in August 2022 after plaintiff’s initial efforts at remediation by its contractor still found

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 11/06/2025 Hearing on Motion for Summary Judgment in Department 53

some elevated levels of mold in certain areas. However, given that (1) UMF Nos. 23 and 27 (along with their duplicates at UMF Nos. 74 and 78) indicate that plaintiff agreed to proceed with additional remediation efforts and offered to waive the rent payment due for September 2022 and (2) UMF Nos. 9 and 60 in essence show that the lease agreement provided plaintiff with 90 days to “commence, in a substantial and meaningful way, such repair or restoration,” this Court finds that plaintiff has successfully met its initial burden of establishing the performance of its own contractual obligations. Moreover, while UMF Nos. 9 and 60 concede the lease afforded defendant BMS as the tenant the right to terminate the lease 60 days after providing plaintiff with written notice of such election, the moving papers demonstrate the following:

Defendant BMS stated in a letter dated 8/31/2022 the lease was terminated the lease (UMF Nos. 24 and 75); Defendant BMS reiterated by letter dated 9/22/2022 that the lease was terminated and BMS was “immediately surrendering possession of the Premises” (UMF Nos. 28 and 80); and Defendant BMS never made the payment due in October 2022 or any month thereafter nor made any other payments to plaintiff after vacating the premises in September 2022 (UMF Nos. 29, 44, 81 and 96).

These assertions are in this Court’s view sufficient to satisfy plaintiff A3C’s initial burden of production relative to the third element for a breach of contract claim (i.e., defendants’ failure to perform their material contractual obligations).

The final question relates to the causation of damages claimed by plaintiff as a result of defendants’ breach of their respective contractual obligations under the lease agreement and the guaranty. The Court finds that UMF Nos. 29-42 and 81-95 adequately establish the element of causation, leaving only the specific amount of damages. As noted above, there appears to be no single UMF which purports to provide the net total of plaintiff A3C’s claimed damages but the moving points & authorities assert that net total of damages, after applicable adjustments, is $127,318.40 exclusive of interest at the contractual rate of 10% per year. (Mov.

MPA, p.5:2-5; p.6:25-26.) Still, because this is a motion for summary adjudication, the real issue here is the amount of damages that is actually established by the UMF included in the moving separate statement. (See, e.g., Zimmerman, Rosenfeld v. Larson, supra, 131 Cal.App.4th at 1477 [citing the “Golden Rule” of summary judgment/adjudication: “If it is not set forth in the separate statement, it does not exist.” (italics in original)].)

According to UMF Nos. 37-38, the difference in rent payments plaintiff is to receive from its new tenant in the subject premises through the end of the five-year term to which defendant BMS had agreed in April 2022 is $119,084.58. UMF Nos. 39-42 describe various expenses plaintiff A3C incurred in connection with re-letting the premises to the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 11/06/2025 Hearing on Motion for Summary Judgment in Department 53

new tenant, all of which amount to $11,510 (i.e., $6,250+$1,500+$290+$3,500), while UMF 43 confirms that plaintiff has retained defendant BMS’ security deposit of $3,306.18. Utilizing these figures, the Court calculates plaintiff A3C’s damages resulting from defendants’ breach of their respective contracts as $127,318.40 (i.e., $119,084.58 rent differential + $11,510 in re-letting expenses - $3,306.18 credit for BMS’ security deposit) exclusive of interest pursuant to the lease agreement. In short, while not essential to the disposition of this motion, plaintiff’s UMFs bear out the claim in the moving points & authorities that the principal amount of damages recoverable from defendants for their breach of the lease agreement and related guaranty (exclusive of interest) is $127,318.40. (See, Mov. MPA, p.5:2-5; p.6:25-26.)

For the above-cited reasons, the Court holds that the moving papers here are indded sufficient to satisfy plaintiff A3C’s initial burden of production under Code of Civil Procedure §437c(p)(1) with respect to each cause of action on which summary adjudication is sought and thus, plaintiff has successfully shifted the burden of production to defendants.

Defendants Failed to Satisfy Their Burden of Production. Because the moving papers have been determined sufficient to meet plaintiff A3C’s initial burden of production under Code of Civil Procedure §437c(p)(1), defendants became obligated to produce competent, admissible evidence which shows the existence of at least one triable issue of material fact which precludes summary adjudication in favor of plaintiff A3C on each cause of action alleged in the complaint. As previously indicated, the Court finds no timely opposition or other objection to the present motion and for the reasons explained above, the Court has declined to consider the purported opposition papers which were untimely filed and served on 11/3/2025, just three (3) days prior to the hearing date on this motion and well after the deadline for reply papers.

Thus, the Court finds that defendants have failed to carry their burden of showing with admissible evidence the existence of at least on triable issue of material fact which precludes summary adjudication on either of plaintiff’s two causes of action for breach of the lease agreement with defendant BMS and for breach of the guaranty executed by defendants Brian and Maryann Simmons. Consequently, the Court concludes defendants have failed to meet their burden of production.

Lastly, the Court provides some additional comments regarding the late filing that defendants made on 10/24/2025 in response to this motion, which was entitled, “Request for Relief to File Late Opposition to Motion for Summary Adjudication Pursuant to California Rules of Court Rule 3.1590(m),” First, the Rule of Court that defendants rely upon, Rule 3.1590, has nothing to do with motions for summary judgment/adjudication, the timing for oppositions thereto, or relief to file a late opposition. Rather, as specifically indicated therein, Rule 3.1590 pertains to preparation of a “Statement of Decision.” Statements of Decision are never required in relation to a

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 11/06/2025 Hearing on Motion for Summary Judgment in Department 53

motion for summary judgment/adjudication because such statements are only required “[o]n the trial of a question of fact by the court,” which by definition, is impermissible in the context of ruling upon a motion for summary judgment/adjudication. (See CRC Rule 3.1590(a).) Also, the specific subdivision which defendants cite (i.e., subd. (m)) provides as follows: “The court may, by written order, extend any of the times prescribed by this rule and at any time before the entry of judgment may, for good cause shown and on such terms as may be just, excuse a noncompliance with the time limits prescribed for doing any act required by this rule.” (CRC Rule 3.1590(m) [emphasis added].)

As stated, the extensions authorized under subdivision (m) apply only to extending the deadlines set forth relating to Statements of Decision in that rule, meaning Rule 3.1590. Second, where a party seeks relief due to “mistake, inadvertence, surprise, or excusable neglect” under Code of Civil Procedure section 473(b) (which defendants appear to be alluding to but do not mention specifically), such relief must be sought affirmatively (e.g., by noticed motion) but defendants have not done so. (See, Code Civ.

Proc. § 472(b).) Further, such motion for relief must be “accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.” (Id.) Again, defendants have not complied with this statutory requirement either. Thus, it abundantly clear that under no circumstances may defendants obtain relief pursuant to section 473(b) simply by filing a document requesting to file a late opposition in lieu of filing a timely opposition to the present motion.

Therefore, defendants’ 10/24/2025 filing provides the Court with no basis on which to rule other than as set forth above.

Disposition

For the reasons explained above, plaintiff A3C’s motion for summary adjudication is GRANTED as to both causes of action alleged in the complaint filed on 4/8/2023 against defendants BMS and Brian and Maryann Simmons.

The Court adds that this ruling is without prejudice to defendants seeking any potentially available and appropriate relief pursuant Code of Civil Procedure section 473(b) or other applicable provision of law relative to the present motion for summary adjudication.

Pursuant to CRC Rule 3.1312, plaintiff to prepare a formal order consistent with the foregoing.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)