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

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 05/26/2026 Hearing on Motion for Summary Adjudication in Department 16D

a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

*** NOTICE: EFFECTIVE APRIL 13, 2026, THIS DEPARTMENT HAS MOVED TO THE TANI G. CANTIL-SAKAUYE COURTHOUSE LOCATED AT 500 G STREET IN SACRAMENTO, CA. ALL MOTIONS NOTICED FOR DEPARTMENT 53 WILL BE HEARD IN DEPARTMENT 16D OF THE NEW COURTHOUSE. ALL PAPERS FOR THIS DEPARTMENT MUST BE FILED AT THIS NEW LOCATION AND WILL NOT BE ACCEPTED AT THE HALL OF JUSTICE. ALL HEARINGS WILL TAKE PLACE AT THIS NEW LOCATION. PARTIES MAY CONTINUE TO APPEAR REMOTELY IN DEPARTMENT 16D UNLESS SPECIFICALLY ORDERED OTHERWISE. ***

Plaintiff Aisle 3 Concepts, LLC’s (“A3C”) motion for summary adjudication as against defendants BMS Scolcop, Inc. (“BMS”), Brian Simmons and Maryann Simmons is ruled upon as follows.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of moving plaintiff’s 96 Undisputed Material Facts and/or which of moving plaintiff’s written objections to evidence will be addressed at the hearing. The parties should be prepared to point to specific admissible evidence already in the record which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Opposing counsel failed to comply with CRC Rule 3.1350(g), requiring a single volume of evidence (including declarations) with a table of contents when the evidence exceeds 25 pages.

Opposing counsel failed to comply with CRC Rule 3.1354, requiring objections to evidence to be set forth in a separate document and to quote or set forth the objectionable material (so the Court need not expend its finite resources searching for the material to which the objections are directed to in order to rule on such objections).

Factual Background

This action arises from a commercial lease agreement which plaintiff A3C and defendant BMS entered into in April 2022 for a five-year term. Defendant BMS’ performance of this lease was concurrently guaranteed by defendants Brian and

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 05/26/2026 Hearing on Motion for Summary Adjudication in Department 16D

Maryann Simmons. According to the complaint filed on 4/8/2023, defendant BMS claimed in an August 2022 letter to plaintiff A3C that the latter had ‘failed to deliver possession’ of the leased premises and defendant BMS subsequently provided written notice of its intent to ‘release possession’ of the premises in September 2022. (Compl., ¶12.) In its 2023 complaint, plaintiff A3C alleges a cause of action against defendant BMS for breach of the lease agreement and another against defendants Brian and Maryann Simmons for breach of the guaranty they executed, seeking damages in the principal amount of $164,500. According to the moving papers, plaintiff A3C did ultimately re-let the premises to a third party in August 2025 and has incurred additional costs in connection therewith.

Defendants filed their answer to complaint on 7/13/2023. They also filed a crosscomplaint against A3C for breach of contract, negligence, fraudulent inducement, and constructive eviction but this cross-complaint is not implicated by the moving papers. In any event, defendants dismissed their cross-complaint without prejudice in November 2025, thereafter filing a separate lawsuit against plaintiff A3C and others on 2/13/2026.

Trial was set for 12/15/2025 but has been vacated, with no new trial date currently scheduled.

Moving Papers. Plaintiff A3C now moves for summary adjudication on its two causes of action against defendants on the grounds there are no triable issues of material fact and plaintiff is entitled to judgment as a matter of law on each cause of action because (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 projected 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%

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 05/26/2026 Hearing on Motion for Summary Adjudication in Department 16D

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. Defendants oppose, claiming the present motion for summary adjudication “should be denied because triable issues of material fact exist regarding Plaintiff’s lack of performance [and] whether Defendants were justified in terminating the lease due to Plaintiff’s failure to adequately remediate dangerous mold conditions that rendered the premises uninhabitable.” (Opp., p.1:9-14.) The opposition adds that defendants’ current counsel associated into this case on 4/28/2025 and “[n]o discovery has been completed by either side,” such that defendants now request a continuance pursuant to Code of Civil Procedure §437c(h) “[i]f the Court is inclined to grant Plaintiff’s Motion for Summary Adjudication.” (Id., at p.1:8-9; p.9:3-4.)

In particular, defendants propose to “[d]epose Plaintiff’s mold remediation contractor regarding the scope and adequacy of the remediation work and clarification of how the contractor determined and issued its Certification of Clearance provided to Plaintiff’s determining that the space was safe to occupy;” “[t]o obtain additional expert testimony regarding the health hazards posed by the mold conditions present after the Plaintiff’s notified Defendants that the space was habitable to the elderly Mr. and Mrs.

Simmons;” and to [c]omplete discovery regarding Plaintiff’s knowledge of pre-existing mold issues in the building,” “mitigation of losses and whether the lease space was ever leased or remains contaminated,” claimed to be “essential to Defendants’ opposition.” (Id., at p.9:24- p.10:7.)

According to the separate statement in opposition, all but five (5) of plaintiff A3C’s proffered 96 UMFs are characterized as “disputed” at least in part (see, Defs.’ Resp. to UMF Nos. 15, 20-24) and given that UMF Nos. 52-96 (offered in support of summary adjudication on the second cause of action) are identical to UMF Nos. 1-44 (cited in connection with the first cause of action), defendants’ responses to UMF Nos. 52-96 are likewise duplicative of their responses to UMF Nos. 1-44. Curiously, defendants even “dispute” those UMFs which merely recite verbatim certain provisions of the subject lease agreement and guaranty agreement at issue in this lawsuit (see, Defs.’ Resp. to UMF Nos. 1-13, 45-51), although these responses fail to cite any actual evidence claimed to show any differing contractual language.

Regardless, as discussed further below, defendants’ own characterization of the purported “disputes” over the vast majority of the 96 UMFs fails to establish the existence of any triable issue of material fact which effectively precludes summary adjudication in favor of plaintiff A3C. The Court notes that defendants’ separate statement in opposition offers no Additional Material Facts which are claimed to preclude summary adjudication here.

Standards for Summary Judgment/Adjudication

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 05/26/2026 Hearing on Motion for Summary Adjudication in Department 16D

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 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

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 05/26/2026 Hearing on Motion for Summary Adjudication in Department 16D

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); see also, Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506.)

That said, the Court now turns to the specific contentions advanced in support of and opposition to this motion for summary adjudication.

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.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 05/26/2026 Hearing on Motion for Summary Adjudication in Department 16D

Defendants did not file any request for judicial notice.

Objections to Evidence

Defendants did not file any written objections to evidence in conformity with CRC Rule 3.1354.

To the extent defendants’ separate statement in opposition purports to assert objections to evidence (see, e.g., Defs.’ Resp. to UMF Nos. 25-27, 30-43), such purported objections to evidence are overruled because they fail to comply with CRC Rule 3.1354, requiring objections to evidence to be set forth in a separate document and also to quote or set forth the objectionable material (so the Court need not expend its finite resources searching for the material to which the objections are directed in order to rule on such objections).

Plaintiff A3C filed 38 pages of written objections to the evidence cited in opposition. Pursuant to Code of Civil Procedure §437c(q), the Court does not rule on these objections since they concern evidence deemed immaterial to the determination of this motion.

Discussion

Plaintiff Met Its Initial Burden of Production. The threshold question here is whether the moving papers 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 (as well as the amount of such damages). (See, e.g., Civ. Code § 1549; Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

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

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 05/26/2026 Hearing on Motion for Summary Adjudication in Department 16D

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) requires greater analysis 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 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 that the lease was terminated (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., defendant BMS’ failure to perform its 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, along with the amount of such damages. 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,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 05/26/2026 Hearing on Motion for Summary Adjudication in Department 16D

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 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 indeed 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 are obliged to produce competent, admissible evidence sufficient to show 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.

A. Defendants’ Contention that Plaintiff A3C Breached the Lease. As indicated previously, the opposition’s primary contention is that “triable issues of material fact exist regarding Plaintiff’s lack of performance [and] whether Defendants were justified in terminating the lease due to Plaintiff’s failure to adequately remediate dangerous mold conditions that rendered the premises uninhabitable.” (Opp., p.1:9-14.) Defendants’ points & authorities insist that there are triable issues of material fact relating to plaintiff A3C’s own breach of the lease and as a result, defendants were “justified in terminating the lease due to uninhabitable conditions.” (Id., at pp.3-6.) However, these contentions that plaintiff A3C itself breached the lease agreement by failing to provide a mold-free premises falls short in light of the lease’s express and

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 05/26/2026 Hearing on Motion for Summary Adjudication in Department 16D

undisputed provisions discussed below.

First, defendants’ arguments that the existence of mold constituted a breach of plaintiff’s implied warranty of habitability found in Civil Code §1942 are unavailing insofar as California law has long held that this implied warranty of habitability does not apply to a commercial lease such as the one at issue in this case. (See, e.g., Civ. Code §1940 [“this chapter shall apply to all persons who hire dwelling units ” (underline added for emphasis)]; Muro v. Superior Court (1986) 184 Cal.App.3d 1089, 1098 [“commercial tenant cannot raise an implied warranty of habitability defense ” (underline added for emphasis)]; Glenn R. Sewell Sheet Metal, Inc. v. Loverde (1969) 70 Cal.2d 666, 671; Strecker v. Barnard (1952) 109 Cal.App.2d 149, 152 [landlord generally owes no duty to prepare non-residential premises for the use of the tenant or to make repairs].)

Second, Section 2.2 of the subject lease agreement warrants that the subject property does not contain any “hazardous levels of any mold or fungi as of the Start Date” in April 2022 and the opposition includes no actual evidence to the contrary, but rather only that mold was subsequently found in July 2022. (See, UMF Nos. 1, 6, 15 and Defs.’ Resp.) Even assuming arguendo that mold existed as of the April 2022 “Start Date” for the lease, plaintiff A3C’s only obligation under Section 2.2 was to “rectify” such noncompliance “promptly after receipt of written notice from Lessee ” (See, UMF 6.) Section 9.6(b) of the subject lease agreement provides in pertinent part:

If lessor is obligated to repair or restore the Premises and does not commence, in a substantial and meaningful way, such repair or restoration within 90 days after such obligation shall accrue, lessee may, at any time prior to the commencement of such repair or restoration, give written notice to lessor of Lessee’s election to terminate this Lease on a date not less than 60 days following the giving of such notice. If Lessee gives such notice and such repair or restoration is not commenced within 30 days thereafter, this lease shall terminate as of the date specified in said notice.

If the repair or restoration is commenced within such 30 days, this Lease shall continue in full force and effect. ‘Commence’ shall mean either the unconditional authorization of the preparation of the required plans, or the beginning of the actual work on the Premises, whichever first occurs. (UMF No. 9 (underline added for emphasis).)

Notably, the opposition admits it is undisputed that defendants first notified plaintiff A3C on 7/9/2022 that mold had been found (see, UMF No. 15 and Defs.’ Resp), thereby triggering the latter’s duty commence repairs/remediation under the above-cited provision within 90 days, or by 10/7/2022. Plaintiff promptly took action and obtained a report indicating the mold had been remediated as of 8/5/2022, well before the expiration of the 90-day window on 10/7/2022. (See, UMF No. 18.) While defendants

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 05/26/2026 Hearing on Motion for Summary Adjudication in Department 16D

subsequently notified plaintiff on 8/23/2022 that mold was again found to be present and plaintiff’s own testing on 8/30/2022 confirmed this finding, plaintiff again promptly agreed not only to conduct further remediation work which was scheduled to begin the following week but also to waive one-month’s rent as an accommodation. (See, UMF Nos. 20-23, 25; Decl. of B. Simmons, Ex. C.) Thus, plaintiff again complied with its express obligations under Section 9.6(b) of the lease and defendants, in turn, had at that time no valid ground on which to terminate the lease agreement based on the presence of mold and/or plaintiff’s failure to fulfill its contractual duty to commence repairs/remediation within 90 days of written notice from defendants.

Third, even if plaintiff A3C had done nothing in response to defendants’ 7/9/2022 notice about the presence of mold, defendants were not entitled to elect to terminate the lease under Section 9.6(b) prior to the end of the 90-day window expiring on 10/7/2022. Under Section 9.6(b), if plaintiff did not “commence” any repairs/remediation prior to 10/7/2022, defendants were authorized to provide written notice of their election to terminate the lease “on a date not less than 60 days following the giving of such notice” but the lease would actually be deemed terminated on such future date only if plaintiff did not “commence” repairs/remediation within 30 days of defendants’ written notice of their election to terminate the lease.

However, if such repairs/remediation are “commenced” within this 30-day window, then Section 9.6(b) explicitly states that the lease “shall continue in full force and effect.” (See, UMF No. 9 (underline added for emphasis).) Based on this undisputed contractual language, defendants were not permitted to elect to terminate the subject lease agreement until 10/7/2022 and even if they had, the termination date could be no earlier than 60 days thereafter, or 12/6/2022. Still, the subject lease would necessarily “continue in full force and effect” unless plaintiff A3C failed to commence such repairs/remediation by 11/6/2022 and thus, defendants’ purported “surrender” of the subject property on 9/22/2022 based on their alleged termination of the lease (see, UMF Nos. 24, 28-29 and Defs.’ Resp. thereto) amounts to a violation of the lease agreement’s express provisions as alleged in the complaint’s first cause of action.

Finally, according to UMF No. 13, Section 13.6 of the lease agreement defines what constitutes a “breach by lessor” and in particular, Section 13.6(a) provides in its entirety:

Notice of Breach. Lessor shall not be deemed in breach of this Lease unless Lessor fails within a reasonable time to perform an obligation required to be performed by Lessor. For purposes of this Paragraph, a reasonable time shall in no event be less than 30 days after receipt by Lessor, and any Lender whose name and address shall have been furnished to Lessee in writing for such purpose, of written notice specifying wherein such obligation of Lessor has not been performed; provided, however, that if the nature of Lessor’s obligation is such that more than 30 days are reasonably required for its performance, then

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 05/26/2026 Hearing on Motion for Summary Adjudication in Department 16D

Lessor shall not be in breach if performance is commenced within such 30 day period and thereafter diligently pursued to completion. (UMF No. 13 (underline added for emphasis).)

Thus, notwithstanding the fact that defendants notified plaintiff A3C on 8/23/2022 that mold was again found to be present, plaintiff was still not in breach of the lease agreement insofar as plaintiff agreed (following its own testing on 8/30/2022) to conduct further remediation work and this work was scheduled to begin the following week (as well as plaintiff’s waiver of one-month’s rent as an accommodation). (See, UMF Nos. 20-23, 25; Decl. of B. Simmons, Ex. C.) Because plaintiff proceeded within a reasonable time of no more than 30 days to perform an obligation under the lease, plaintiff was not under Section 13.6(a) in breach of its contractual duties and defendants, in turn, had at that time no valid basis on which to assert in the 9/22/2022 letter from their attorney either that the lease was terminated or that they had no further obligation to make rent payments on account of the presence of mold.

For these reasons, this Court finds that defendants have failed to carry their burden of showing with admissible evidence the existence of at least one triable issue of material fact which precludes summary adjudication on plaintiff A3C’s first cause of action for breach of the lease agreement with defendant BMS.

B. Defendants’ Contention that They Were Constructively Evicted. Defendants further assert that they were “constructively evicted” by virtue of the mold conditions which plaintiff failed to address and which substantially interfered with their use and enjoyment of the leased premises. (Opp., p.6:25-p.7:6.) First, the opposition’s failure to meaningfully develop this assertion and to discuss any specific facts or evidence claimed to support it may be construed as a waiver of this particular contention. (See, e.g., Trinity Risk Management, LLC v.

Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1008 [“failure to offer reasoned analysis of the issue constitutes a waiver”]; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [when party fails to support assertion with reasoned argument and citations to authority, point is treated as waived].) Second, the Court finds defendants’ assertion to be in substance duplicative of their primary argument discussed above: Plaintiff A3C itself breached of the terms of the lease by failing to provide defendants with a property free of mold, thereby permitting defendants to elect termination of the lease due to uninhabitable conditions. (Id., at pp.3-6.)

Thus, the Court’s analysis immediately above need not be repeated here and because the opposition has failed to proffer evidence sufficient to establish any actual breach of the lease agreement by plaintiff A3C, defendants’ suggestion of constructive eviction cannot withstand scrutiny.

C. Defendants’ Contention that Plaintiff A3C Failed to Deliver Possession as Warranted. Defendants’ remaining claims that plaintiff A3C failed to deliver the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 05/26/2026 Hearing on Motion for Summary Adjudication in Department 16D

leased premises in “broom clean” and good operable condition with complete plumbing connections, free of unsafe electrical issues, and compliance with the Americans with Disabilities Act (“ADA”), fares no better. (Opp., p.1:23-p.2:12; p.4:12-15.) As referenced above, Section 2.2 of the lease generally specifies the condition in which the property will be delivered to defendants at the inception of the lease but then expressly states that “[i]f a non-compliance with such warranty exists as of the Start Date,” plaintiff A3C’s only obligation thereunder was to “rectify” such non-compliance “promptly after receipt of written notice from Lessee ” (See, UMF 6 (underline added for emphasis).)

The opposition, however, is devoid of any evidence indicating that defendants provided at any time any written notice to plaintiff A3C about the premises being delivered with incomplete plumbing connections, unsafe electrical issues, and/or non-compliance with the ADA and as such, these alleged defects are effectively deemed waived by virtue of the following language from Section 2.2:

If Lessee does not give Lessor the required notice within the appropriate warranty period, correction of any such non-compliance, malfunction or failure shall be the obligation of Lessee at Lessee’s sole cost and expense (UMF No. 6 (underline added for emphasis).)

Although the opposition does include some evidence indicating that defendants did provide written notice to plaintiff A3C about the premises not being delivered in “broom clean” condition, “free of debris on the Commencement [sic] Date” (see, UMF No. 24; Pl. Ex. 6 (8/31/2022 Ltr. from Atty. Young)), this written notice is dated 8/31/2022 and pursuant to Section 9.6(b) cited above, plaintiff A3C thereafter had a 90-day window within which to commence efforts to rectify, repair or restore the premises to a “broom clean” condition “free of debris.

However, defendants instead purported on 8/31/2022 to terminate the lease and later provided on 9/22/2022 written notice they were surrendering the premises as of that date, well before the expiration of the 90-day period on 11/29/2022. Consequently, the opposition’s suggestion that plaintiff A3C failed to deliver the premises in the condition warranted in Section 2.2 of the lease agreement does not constitute a triable issue of fact which precludes summary adjudication of the first cause of action in favor of plaintiff.

D. Guaranty Agreement. Defendants’ final contention is that guarantors Brian and Maryann Simmons cannot be liable under the guaranty if defendant BMS’ “principal obligation” under the lease agreement is “invalid.” (Opp., p.7:7-14.) In short, the opposition contends that because it was plaintiff A3C and not defendant BMS who breached the lease agreement by failing to “adequately remediate dangerous mold conditions that rendered the premises uninhabitable” (Id., at p.1:9-14), plaintiff A3C is not entitled to summary adjudication on the second cause of action (Id., at p.7:16- p.8:6.) Because the Court has already determined that defendants failed to carry their burden of producing evidence sufficient to create a triable issue of material fact

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 05/26/2026 Hearing on Motion for Summary Adjudication in Department 16D

precluding summary adjudication of the first cause of action for breach of the lease agreement, it necessarily follows that they have likewise failed to satisfy their burden of producing evidence showing a triable issue of fact mandating denial of summary adjudication on the second cause of action for breach of the guaranty executed by the two individual defendants.

Defendants’ Request for Continuance. As noted above, defendants’ opposition also requests a continuance on the hearing on this motion pursuant to Code of Civil Procedure §437c(h) “[i]f the Court is inclined to grant Plaintiff’s Motion for Summary Adjudication.” (Opp., p.9:3-4.) In particular, defendants propose to “[d]epose Plaintiff’s mold remediation contractor regarding the scope and adequacy of the remediation work and clarification of how the contractor determined and issued its Certification of Clearance provided to Plaintiff’s determining that the space was safe to occupy;” “[t]o obtain additional expert testimony regarding the health hazards posed by the mold conditions present after the Plaintiff’s notified Defendants that the space was habitable to the elderly Mr. and Mrs.

Simmons;” and to [c]omplete discovery regarding Plaintiff’s knowledge of pre-existing mold issues in the building,” claimed to be “essential to Defendants’ opposition.” (Id., at p.9:24-p.10:7.) Defendants’ request for a continuance shall be denied on several separate and distinct grounds.

First, as the opposition concedes, a request for continuance under Code of Civil Procedure §437c(h) must be support by an affidavit or declaration which establishes that “facts essential to justify opposition may exist but cannot, for reasons stated, be presented.” Although the opposition includes declarations by defendants Brian and Maryann Simmons and by Heidi Naghibi, a Certified Mold Inspector, none of these declarations appear to include any attestation that facts essential to defendants’ opposition may exist but cannot, for some specified reason(s), be included with the opposition papers on file.

Notably, the opposition papers do not include any declaration from defendants’ current (or former) counsel setting forth any fact or information claimed to be essential for defendants’ opposition to this motion or the reasons why such fact or information cannot currently be presented to the Court. The requirement of a declaration supporting a request for continuance is clear under current California law. (See, e.g., Code Civ. Proc. §437c(h); Frazee v. Seely (2002) 95 Cal.App.4th 627, 634 [affiant need not show evidence does exist, only that it may exist]; Bahl v.

Bank of America (2001) 89 Cal.App.4th 389, 397-398 [affidavit required to show facts essential to justify opposition]; Nazar v. Rodeffer (1986) 184 Cal.App.3d 546, 556 [§437c(h) authorizes continuance upon a good faith showing by affidavit].) Therefore, defendants’ failure to provide such a declaration/affidavit is fatal to their request for a continuance and tthe Court denies defendants’ request for a continuance on this ground.

Second, while the Court need not proceed further, it notes that some Courts of Appeal have held that a party seeking continuance of a motion for summary

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 05/26/2026 Hearing on Motion for Summary Adjudication in Department 16D

judgment/adjudication in order to conduct additional discovery must demonstrates its own diligence. For example, in FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 76, the Court of Appeal upheld the denial of a continuance in part because “more than adequate time existed in order to secure discovery responses” and “there was no justification for the failure to have commenced the use of appropriate discovery tools at an earlier date.” (See also, Wachs v. Curry (1992) 13 Cal.App.4th 616, 624 [affidavit not showing that evidence to oppose motion exists or why it could not have been obtained sooner held insufficient to support continuance]; O'Laskey v.

Sortino (1990) 224 Cal.App.3d 241, 251 [declaration of attorney insufficient to justify continuance when it failed to state why information sought could not have been obtained earlier] [disapproved on other grounds in Flanagan v. Flanagan (2002) 27 Cal.4th 766, 776, fn. 4.) Similarly, in A&B Painting and Drywall, Inc. v. Superior Court (1994) 25 Cal.App.4th 349, 356-357, the First District Court of Appeal held that a continuance for the purpose of taking depositions was not warranted when the declaration submitted in support of the continuance did not “explain what efforts were made to take the necessary depositions or why they could not have been taken earlier.” (Id., at 357.)

The Sixth District Court of Appeal has also held that some showing of diligence in pursuit discovery is required by a party seeking relief under §437c(h). (See, Desaigoudar v. Meyercord (2003) 108 Cal.App.4th 173, 191; see also, Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769, 804 [where Third District Court of Appeal stated, “[t]he circumstances of this case do not suggest that appellants were dilatory in conducting discovery”].) To the extent these principles apply here, the Court notes that defendants have not and cannot establish they exercised reasonable diligence in pursuit of discovery in this case.

While the opposition asserts that defendants’ current counsel did not begin participating in this case until 4/28/2025, defendants’ opposition admits “[n]o discovery has been completed by either side.” (Opp., p.1:8-9.) Such admission fails to establish that defendants’ current counsel has within the last 12 months pursued with any diligence the discovery of any fact or information claimed to be essential for opposing the present motion. While the Court need not rely upon the above-referenced line of cases to deny defendants’ request for continuance here, these authorities only bolster the denial in this case.

Third, as another independent basis for denial of defendants’ request for a continuance in order to complete additional discovery in the present case, discovery (both expert and non-expert) closed by operation of law in advance of the 12/15/2025 trial date and remains closed as of this date. Furthermore, defendants have not filed any motion to re-open discovery, much less obtain an order granting such a motion. In fact, defendants have not even reserved a hearing date for any motion to reopen discovery. Given that the present motion for summary adjudication was originally noticed for hearing on 11/6/2025 and that no discovery can in any event be conducted under the status of this case, this Court finds that such circumstances militate against a continuance pursuant to Code of Civil Procedure §437c(h).

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 05/26/2026 Hearing on Motion for Summary Adjudication in Department 16D

Finally, as yet another independent basis to deny defendants’ request for a continuance, this Court is not persuaded that the discovery which defendants now desire to pursue -- i.e., to “[d]epose Plaintiff’s mold remediation contractor regarding the scope and adequacy of the remediation work and clarification of how the contractor determined and issued its Certification of Clearance provided to Plaintiff’s determining that the space was safe to occupy;” “[t]o obtain additional expert testimony regarding the health hazards posed by the mold conditions present after the Plaintiff’s notified Defendants that the space was habitable to the elderly Mr. and Mrs. Simmons;” and to [c]omplete discovery regarding Plaintiff’s knowledge of pre-existing mold issues in the building,” “mitigation of losses and whether the lease space was ever leased or remains contaminated” (Opp., p.9:24-p.10:7) -- would, in light of the specific lease provisions discussed above (i.e., §§2.2, 9.6, 13.6) and defendants’ lack of a valid basis on which to claim in the 8/31/2022 and 9/22/2022 letters from their attorney that the subject lease was terminated and they thereafter had no further obligation to make rent payments, be reasonably likely to alter the outcome of this motion for summary adjudication.

Disposition

Because the moving papers are sufficient to satisfy plaintiff A3C’s initial burden of production under Code of Civil Procedure §437c(p)(1) with respect to both causes of action alleged in the complaint and because defendants failed to meet their burden of producing evidence shows the existence of at least one triable issue of material fact which precludes summary adjudication in favor of plaintiff A3C on either cause of action, plaintiff A3C’s present motion for summary adjudication is GRANTED as to both causes of action alleged in the complaint.

Pursuant to CRC Rule 3.1312, plaintiff A3C to prepare for the Court’s consideration a proposed judgment on the pending complaint.

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