OPT Parkhill LLC vs. Televin Subs LLC

OPT failed to meet its initial burden to show no triable issue of material fact exists, and it is entitled to summary judgment as a matter of law. The language of the EUP is the only evidence in the separate statement. (UMF No. 1.) The plain language of the EUP is ambiguous as to the phrases “competitive franchises” and “like-minded sandwich restaurant.” Triable issues of

202100557174CUBC: OPT Parkhill LLC vs. Televin Subs LLC

material fact exist as to whether the EUP prohibited OPT from leasing space to PeeBee & Jay’s. It follows that OPT failed to meet its initial burden in support of the motion.

Since OPT did not meet the initial burden, Televin need not proffer any evidence in opposition, and the motion must be denied. (See CCP, § 437c, subd. (p)(2); see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468; see also Noe v. Superior Court (2015) 237 Cal.App.4th 316, 326.)

OPT’s motion for summary judgment is DENIED.

Background: This action arises from a dispute regarding a lease. In the cross-complaint, Defendant/Cross-Complainant Televin Subs LLC (“Defendant,” “Cross-Defendant,” or “Televin”) asserts causes of action against Plaintiff/Cross-Defendant OPT Parkhill LLC (“Plaintiff,” “Cross-Defendant,” or “OPT”) for (1) breach of contract, and (2) breach of implied covenant of good faith and fair dealing.

On August 16, 2021, OPT Parkhill originally sued Televin Subs and its principal, John Carta (“Mr. Carta”) (collectively, “Defendants”) for Breach of Lease and Breach of Guaranty, based on an alleged early and unexcused termination of the lease for a commercial space. Televin leased the premises to operate a Jimmy Johns sandwich shop. Before the Lease expired, Defendants claimed they were entitled to terminate it because OPT Parkhill allegedly violated the Lease’s “Exclusive Use Provision” (the “EUP”) by leasing space in the shopping center to another restaurant, PeeBee & Jays, which also sold sandwiches. OPT Parkhill denies that the lease to PeeBee & Jays violated the EUP, and its complaint (later amended) seeks damages for unpaid past and future rent due under the Lease.

The EUP states:

3. EXCLUSIVE USE: (a) Throughout the Term, provided Tenant is not in default, and so long as Tenant is open for business as a Jimmy John’s gourmet sandwich shop, Landlord will not lease space within Parcels 4 and 5 of the Shopping Center to any tenant whose authorized use clause describes its business as any of the following competitive franchises: Subway, Jersey Mikes, Firehouse Subs, Blimpies, Quiznos, TOGO’s, Schlotzky’s Deli, Sub-Contractor, Which Wich, Corner Bakery, Pot Belly Sandwich Works, or any other like-minded sandwich restaurant. The foregoing shall not apply to restaurants whose principal product offering is comprised of any or all of the following: hamburgers, calzones, hot dogs, burritos, banh mi, tortilla or lettuce wraps or breakfast sandwiches.”

On September 17, 2025, Televin filed a cross-complaint against OPT Parkhill for breach of contract and breach of the implied covenant of good faith and fair dealing.

The cross-complaint alleges the following regarding the lease: On October 26, 2015, Televin Subs entered into a 10-year written commercial lease with OPT Parkhill to operate a Jimmy John’s Sandwiches restaurant at 520 N. Ventu Park Rd, Unit #180, in Thousand Oaks, California. Concurrently with the lease, the parties signed a Second Addendum containing an “Exclusive Use Provision” (Section 3(a)). This provision restricted the landlord from leasing space within Parcels 4 and 5 of the shopping center to any competitive sandwich franchises (e.g.,

202100557174CUBC: OPT Parkhill LLC vs. Televin Subs LLC

Subway, Jersey Mike's, Firehouse Subs, etc.) or “any other likeminded sandwich restaurant.” Section 3(b) stipulated that if the landlord violated the exclusive use restriction for over 90 days after receiving written notice, the tenant had the right to reduce its minimum rent by 50% for up to 9 months. If the violation persisted past those 9 months, the tenant held a one-time right to terminate the lease.

The cross-complaint alleges the following with respect to the breach: On August 31, 2018, OPT Parkhill entered into a lease with a restaurant named "PeeBee & Jay’s" to operate a quick-service sandwich and salad shop. PeeBee & Jay's opened on August 17, 2020, just one storefront away from Jimmy John’s. Televin Subs alleges that OPT Parkhill knew it was breaching the lease. Internal discussions from as early as September 2016 show that the landlord anticipated the Jimmy John's operator would “raise a fuss” and explicitly suggested trying to get PeeBee & Jay's to alter its concept slightly to “de-emphasize the sandwich offering” to give the landlord “some cover.” Upon PeeBee & Jay's opening, Televin Subs gave formal written notice of the violation.

When OPT Parkhill failed to cure the breach, Televin Subs exercised its right to reduce rent and eventually vacated the premises due to the landlord's refusal to resolve the matter.

Pursuant to CCP 437c, OPT moves for summary judgment against Televin on the cross-complaint on the grounds that there are no triable issues of material fact and that OPT Parkhill is entitled to judgment as a matter of law on Televin’s cross-complaint because the EUP in the commercial lease agreement between OPT Parkhill and Televin is not reasonably susceptible to the interpretation on which Televin’s claims are based.

Discussion:

I. Request for Judicial Notice

OPT requests judicial notice of two relevant court records, i.e. the cross-complaint and the motion for summary judgment on the complaint. These items are subject to permissive judicial notice. (See Evid. Code, § 452, subd. (d); see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422.)

Televin argues that the Court cannot take judicial notice of factual assertions contained there. This is correct. Judicial notice may be taken of the existence of documents in the court’s file, but not hearsay statements set forth therein; rather, judicial notice may only be taken of the existence of the records, the fact that they contain certain statements, the truth of the Court’s factual findings (that are the result of an adversarial hearing) and rulings, and the dates when the records were filed. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) The Court will take judicial notice of these records, subject to this limitation.

Therefore, OPT’s request for judicial notice is GRANTED.

II. Evidentiary Objections

Televin’s evidentiary objection has been rendered moot by the Court’s analysis of the request for judicial notice.

202100557174CUBC: OPT Parkhill LLC vs. Televin Subs LLC

In any event, the Court need not rule on these objections. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (CCP, § 437c, subd. (q).)

Here, any evidentiary objections are not material to the disposition of the motion, including all of Televin’s objections to the request for judicial notice and OPT’s other evidence. As explained below, even when considering all of OPT’s evidence, OPT fails to meet its initial burden. Since OPT did not meet its initial burden, Televin’s evidence need not be considered.

Therefore, the Court declines to rule on the evidentiary objections.

III.

Analysis

Televin asserts causes of action for breach of contract and breach of the implied covenant. The parties agree that both causes of action require evidence of the contract language, and evidence to show the parties’ intent. OPT, on the one hand, must present undisputed evidence to show that the parties intended to allow restaurants such as PeeBee & Jay’s to lease commercial space. On the other hand, Televin must raise a triable issue of material fact as to whether the EUP is less restrictive, as OPT suggests, or whether it would bar OPT from leasing to restaurants such as PeeBee & Jay’s.

A. OPT’s Initial Burden

1. Separate Statement

To begin, Televin’s opposition correctly states that OPT’s memorandum of points and authorities cites evidence that is not included in the separate statement. Televin argues that the evidence should be disregarded. The question presented is whether the Court should consider evidence that is not cited in the separate statement.

Some courts have held that a trial court may properly refuse to consider facts and evidence that are not set forth in the supporting separate statement. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 473 [“[t]his is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist”].) In contrast, other courts have held that the decision as to “[w]hether to consider evidence not referenced in the moving party’s separate statement rests with the sound discretion of the trial court” that is subject to appellate review under an abuse of discretion standard. (See San Diego Watercrafts, Inc. v.

Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) Under this analysis, a court properly considers evidence that is not set forth in the separate statement when the facts presented are relatively simple, and the evidence at issue was clearly called to the attention of the court and the opposing party. (Ibid.)

Here, the facts and evidence are not relatively simple. OPT has submitted hundreds of pages of evidence, including a request for judicial notice, multiple declarations, and 13 exhibits. Despite this volume of evidence, the separate statement—which contains only a single UMF—only cites to EUP.

202100557174CUBC: OPT Parkhill LLC vs. Televin Subs LLC

Under these circumstances, the Court will apply the Golden Rule. Only facts and evidence cited in the separate statement will be considered.

2.

Analysis

The only issue presented for summary judgment is whether the EUP is reasonably susceptible to Televin’s alleged interpretation.

We begin by noting the oft-stated rule that parol evidence is properly admitted to construe a written instrument when its language is ambiguous. The test of whether parol evidence is admissible to construe an ambiguity is not whether the language appears to the court to be unambiguous, but whether the evidence presented is relevant to prove a meaning to which the language is “reasonably susceptible.” (Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 37 [69 Cal.Rptr. 561, 442 P.2d 641, 40 A.L.R.3d 1373].)

The decision whether to admit parol evidence involves a two-step process. First, the court provisionally receives (without actually admitting) all credible evidence concerning the parties' intentions to determine “ambiguity,” i.e., whether the language is “reasonably susceptible” to the interpretation urged by a party. If in light of the extrinsic evidence the court decides the language is “reasonably susceptible” to the interpretation urged, the extrinsic evidence is then admitted to aid in the second step—interpreting the contract. (Blumenfeld v. R. H. Macy & Co. (1979) 92 Cal.App.3d 38, 45 [154 Cal.Rptr. 652].)

Different standards of appellate review may be applicable to each of these two steps, depending upon the context in which an issue arises. The trial court's ruling on the threshold determination of “ambiguity” (i.e., whether the proffered evidence is relevant to prove a meaning to which the language is reasonably susceptible) is a question of law, not of fact. (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 598 [250 Cal.Rptr. 299].) Thus the threshold determination of ambiguity is subject to independent review. (Equitable Life Assurance Society v. Berry (1989) 212 Cal.App.3d 832, 840 [260 Cal.Rptr. 819].)

The second step—the ultimate construction placed upon the ambiguous language—may call for differing standards of review, depending upon the parol evidence used to construe the contract. When the competent parol evidence is in conflict, and thus requires resolution of credibility issues, any reasonable construction will be upheld as long as it is supported by substantial evidence. (Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071, 1084 [258 Cal.Rptr. 721].) However, when no parol evidence is introduced (requiring construction of the instrument solely based on its own language) or when the competent parol evidence is not conflicting, construction of the instrument is a question of law, and the appellate court will independently construe the writing. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [44 Cal.Rptr. 767, 402 P.2d 839].)

202100557174CUBC: OPT Parkhill LLC vs. Televin Subs LLC

(Winet v. Price (1992) 4 Cal.App.4th 1159, 1165–1166.)

OPT argues that the EUP is not reasonably susceptible to Televin’s alleged interpretation (that the EUP barred OPT from leasing space to any sandwich shop, such as PeeBee & Jay’s).

The only fact and evidence submitted in OPT’s separate statement is UMF No. 1, which states:

The Second Addendum to Standard Lease Agreement between OPT Parkhill and Televin Subs, LLC contains the following provision: “3. EXCLUSIVE USE: (a) Throughout the Term, provided Tenant is not in default, and so long as Tenant is open for business as a Jimmy John’s gourmet sandwich shop, Landlord will not lease space within Parcels 4 and 5 of the Shopping Center to any tenant whose authorized use clause describes its business as any of the following competitive franchises: Subway, Jersey Mikes, Firehouse Subs, Blimpies, Quiznos, TOGO’s, Schlotzky’s Deli, Sub-Contractor, Which Wich, Corner Bakery, Pot Belly Sandwich Works, or any other like-minded sandwich restaurant.

The foregoing shall not apply to restaurants whose principal product offering is comprised of any or all of the following: hamburgers, calzones, hot dogs, burritos, banh mi, tortilla or lettuce wraps or breakfast sandwiches.”

Evidence: Exhibit A, p. 104 to “Evidence in Support of Cross-Defendant OPT Parkhill, LLC’s Motion for Summary Judgment.”

(UMF No. 1.)

The plain language of the EUP is ambiguous to the extent it refers to “competitive franchises” and “like-minded sandwich restaurant.” It follows that the contract language presents a triable issue of material fact as to the parties’ intent, and whether a sandwich and salad restaurant such as PeeBee & Jay’s would be prohibited under the EUP.

Since OPT did not include any parol evidence in the separate statement, there is a triable issue of material fact as to the interpretation of the contract language and parties’ intent. Even if the Court were to consider OPT’s other evidence, its evidence is insufficient to show that no triable issue of material fact exists, and it is entitled to judgment in its favor. The parties’ negotiations raise questions as to their intent.

B. Televin’s Burden in Opposition

Since OPT failed to meet its initial burden, Televin need not proffer any evidence in opposition, and the motion must be denied. (See CCP, § 437c, subd. (p)(2); see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468; see also Noe v. Superior Court (2015) 237 Cal.App.4th 316, 326.)

C.

Conclusion

OPT failed to meet its initial burden. Therefore, its motion for summary judgment is DENIED.

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