Sunshine West Body Shop v. Lukic CA2/8

Filed 5/6/14 Sunshine West Body Shop v. Lukic CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

SUNSHINE WEST BODY SHOP, INC., B248781

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. SC115191) v.

MILENKO LUKIC et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County. Norman P. Tarle, Judge. Affirmed.

Law Offices of John J. Jackman, John J. Jackman; David M. Shaby & Associates and Timothy R. Vrastil, for Plaintiff and Appellant.

Law Offices of Harold J. Light, Harold J. Light and Bruce A. Gilbert for Defendants and Respondents.

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Sunshine West Body Shop, Inc. appeals from summary judgment for its former commercial landlord, Milenko and Mirjana Lukic (the landlord). Because Sunshine West tries for the first time on appeal to create triable issues of fact from matters that it did not discuss in its opposition to the landlord’s motion for summary judgment, we affirm.

FACTS AND PROCEEDINGS

Landlord owns the buildings at 1653 and 1665 11th Street in Santa Monica. In May 2006, Tom Holmes and his business, Holmes Body Shop, Inc. – who are not parties to this appeal – entered into a five-year lease for the properties. In 2007, the landlord consented to a sublease of both properties to appellant, an enterprise related to, but separate from, the Holmes entities. The five-year lease contained an option to renew for five years. Unless renewed, the lease would expire on April 30, 2011. Appellant contends it timely exercised the option to renew in January 2011. Claiming, however, that appellant’s attempted renewal was ineffective, the landlord entered into a new lease with a new tenant (Santa Monica Body Craft Center, LLC) to go into effect on May 1, 2011, upon expiration of the lease’s original five-year term. Based on the landlord’s refusal to renew appellant’s sublease, appellant vacated the premises upon the new tenant’s arrival and removed its auto body shop business equipment over several days in late April and early May 2011. In December 2011, appellant filed a complaint against the landlord. The complaint alleged causes of action for breach of contract, wrongful eviction, and breach of the covenant of quiet enjoyment. The complaint alleged appellant’s damages exceeded $500,000 from its loss of its body shop business due to its wrongful ejection from the properties. The landlord moved for summary judgment or adjudication. Its motion urged multiple grounds for summary judgment, among them an exculpatory provision in the lease (which the sublease incorporated) that barred interruption-of-business damages sought by appellant. Paragraph 8.8 of the lease, which appellant had attached as an exhibit to its complaint, stated: