Regency Centers v. Ivener CA2/6

Filed 8/26/13 Regency Centers v. Ivener CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

REGENCY CENTERS, L.P., 2d Civil No. B247703 (Super. Ct. No. 56-2012-421791-CU-BC- Plaintiff and Appellant, VTA) (Ventura County) v.

HELEN IVENER et al.,

Defendants and Respondents.

Regency Centers, L.P. appeals from a judgment of dismissal entered in favor of defendants Helen Ivener and Robert Ivener after the trial court sustained, without leave to amend, a demurrer to appellant's complaint for breach of a shopping center lease. The trial court sustained the demurrer on the ground that the action was time barred. (Code Civ. Proc., § 337.2.) We affirm. Facts & Procedural History This is an action to collect rent from Helen Ivener and Robert Ivener after a successor tenant, Soung Black Na, defaulted on a shopping center lease and vacated the premises. The lease dates back to 1991 and was modified and assigned as follows: In 1991, Denis Dutton and Judith Dutton dba TCBY (The Country's Best Yogurt) entered into a written contract to lease the property from January 1, 1992 to January 1, 1997. Dutton exercised an option to extend the lease another five years (from January 1, 1997 to January 1, 2002) and assigned the lease to Ivener in 1999.

On March 14, 2001, appellant and Ivener modified the lease ("Third Modification To Lease Agreement"), extending the lease term from January 1, 2002 to December 31, 2007. Paragraph 2 of the modified lease stated, "[t]here are no options to extend remaining." Paragraph 4 of the modified lease states: "Tenant shall have the option(s) to extend the Lease Term for one (1) additional period of five (5) years" providing "Tenant has not assigned or sublet the Premises . . . ." In order to exercise the option, Ivener had to give appellant written notice within 180 days of the lease expiration date and appellant had to give written notice of the proposed "Minimum Guaranteed Rental paid by Tenant during the calendar month immediately preceding the commencement of the Option Period." Paragraph 4 provides that the option is not exercised until Ivener accepts in writing the proposed Minimum Guaranteed Rental rate, at which time "the parties shall immediately execute an amendment to this Lease setting forth the new Minimum Guaranteed Rental rate for the Option Period." Ivener did not exercise the option but did assign the lease to a new tenant. On February 14, 2002, appellant consented to Ivener's assignment of the modified lease to Hyunsuk Cha. On November 25, 2004, Cha assigned the modified lease to Soung Back Na. After Na filed a bankruptcy petition, appellant sued Ivener and Cha for 1 $300,000 rent and damages. The complaint alleged that Na exercised an option to extend the lease in May 2006, and defaulted on the rent and vacated the premises on some unspecified date.