Stanley Y Mar et al vs Restaurant Sato Inc et al

Case Number

24CV03258

Case Type

Hearing Date / Time

Fri, 03/28/2025 - 10:00

Nature of Proceedings

Motion for Summary Judgment

Tentative Ruling

For all reasons discussed herein, the motion of plaintiffs for summary judgment is granted. Plaintiffs shall submit a proposed order in accordance with this ruling, and give notice of the Court’s ruling herein.

Background:

On June 11, 2024, plaintiffs Stanley Y. Mar (Stanley) and Pui L. Mar (Pui) (collectively, plaintiffs) filed their original complaint in this action against defendants Restaurant Sato, Inc. (Restaurant Sato), Kazumoto Sato (Kazumoto), and Virginia Sato (Virginia) (collectively, defendants), alleging two causes of action: (1) breach of contract (against Restaurant Sato); and (2) breach of guaranty (against Kazumoto and Virginia). (Note: To avoid confusion due to common surnames, the Court will refer to the individual parties by their first names. No disrespect is intended.)

On June 18, 2024, without any response to the complaint having been filed, plaintiffs filed a first amended complaint (the FAC), reclassifying the action from limited to unlimited, and alleging the same two causes of action described above.

On October 22, 2024, defendants filed an answer to the FAC, generally denying its allegations and asserting twenty-four affirmative defenses.

On October 28, 2024, the Court entered an order, pursuant to a stipulation by the parties, granting plaintiffs leave to file and serve a second amended complaint (the SAC). (Oct. 28, 2024, Order.) The Court further ordered that defendants’ answer to the FAC shall be deemed to be defendants’ answer to the SAC. (Ibid.)

On November 1, 2024, plaintiffs filed the SAC, which is the operative pleading. In the SAC, plaintiffs allege the same two causes of action described above which arise from an alleged failure by Restaurant Sato to pay monthly rent due pursuant to a lease for premises owned by plaintiffs and located at 738 State Street in Santa Barbara, California, which plaintiffs allege was assigned to Restaurant Sato. (SAC, ¶¶ 10-12 & Exhs. 1-2.) Plaintiffs further allege that Virginia and Kazumoto (collectively, the Satos) are guarantors of the assigned lease, including its subsequent amendments and agreements. (Id. at ¶¶ 12-17 & Exhs. 2-7.) As further alleged in the SAC, Restaurant Sato abandoned the subject premises on July 18, 2024. (Id. at ¶ 19.)

On December 31, 2024, plaintiffs filed a motion for an order granting summary judgment in their favor on the causes of action alleged in the SAC, on the grounds that there exist no triable issues of material fact and that plaintiffs are entitled to judgment as a matter of law.

Defendants have not filed an opposition to plaintiffs’ motion for summary judgment.

For present purposes, it is undisputed that plaintiffs are the owners of premises located at 738 State Street in Santa Barbara, California (the Premises). (Sep. Stmt., UMF No. 1 & evidence cited therein.) On October 1, 1993, plaintiffs entered into a “Lease” with JR Santa Barbara, Inc., for the Premises. (Sep. Stmt., UMF No. 2 & evidence cited therein.)

On September 1, 1999, Restaurant Sato and plaintiffs entered into an “Agreement Amending Lease” (the First Amendment), under which the Lease was assigned from JR Santa Barbara, Inc., to Restaurant Sato. (Sep. Stmt., UMF No. 3 & evidence cited therein.) The First Amendment provides that the Satos would be guarantors of the Lease. (Sep. Stmt., UMF No. 3 & evidence cited therein.)

In connection with the First Amendment, the Satos executed an August 30, 1999, Guaranty of Lease (the Guaranty). (Sep. Stmt., UMF No. 4 & evidence cited therein.) By signing the Guaranty, the Satos agreed, jointly and severally, to unconditionally perform all obligations owed to plaintiffs by Restaurant Sato under the Lease, and to make payment of all amounts due under the Lease as amended. (Sep. Stmt., UMF No. 4 & evidence cited therein.)

On April 28, 2004, plaintiffs and defendants entered into an “Agreement Exercising Option to Extend Term of Lease” (the 2004 Agreement). (Sep. Stmt., UMF No. 5 & evidence cited therein.)

On February 23, 2011, plaintiffs and defendants entered into an “Agreement Regarding Lease Term and Rent” (the 2011 Agreement) whereby defendants agreed to extend the term expiration date to February 28, 2015. (Sep. Stmt., UMF No. 6 & evidence cited therein.)

On February 4, 2015, plaintiffs and defendants entered into an “Agreement regarding Lease Term, Rent And Option” (the 2015 Agreement). (Sep. Stmt., UMF No. 7 & evidence cited therein.)

On March 1, 2019, plaintiffs and defendants entered into an “Agreement Exercising Option To Extend Term Of Lease And Regarding Lease Term, Rent And Option” (the 2019 Agreement). (Sep. Stmt., UMF No. 8 & evidence cited therein.) The Satos executed the 2019 Agreement acknowledging that the Guaranty continued to apply to that agreement. (Sep. Stmt., UMF No. 8 & evidence cited therein.)

Under the 2019 Agreement, the rent for the premises increased annually at a rate of $500 per month and the Lease would expire on February 28, 2025. (Sep. Stmt., UMF No. 9 & evidence cited therein.) Under the terms of the 2019 Agreement, Restaurant Sato owed monthly rent for the premises in the amount of $10,500 as of March 1, 2023. (Sep. Stmt., UMF No. 9 & evidence cited therein.) On March 1, 2024, the monthly rent for the premises increased to $11,000, which was due on the first day of the month. (Sep. Stmt., UMF No. 9 & evidence cited therein.)  

From March 2023 through July 1, 2024, defendants failed and refused to pay monthly rent for the premises. (Sep. Stmt., UMF No. 10 & evidence cited therein.) Plaintiffs’ counsel mailed numerous notifications to defendants regarding their failure to pay rent, but the rent remained unpaid. (Sep. Stmt., UMF No. 11 & evidence cited therein.) No payment has been received for any amounts that became due on or after March 1, 2023. (Sep. Stmt., UMF No. 12 & evidence cited therein.)

On July 12, 2024, Restaurant Sato signed a Notice of Abandonment of Premises (the Notice of Abandonment). (Sep. Stmt., UMF No. 13 & evidence cited therein.) On July 18, 2024, which is the “Date of Abandonment”, defendants’ counsel, Michael Fox, and plaintiffs’ counsel met and plaintiffs’ counsel received possession of the Premises. (Sep. Stmt., UMF No. 13 & evidence cited therein.) Pursuant to the signed Notice of Abandonment, the Premises were deemed abandoned on July 18, 2024. (Sep. Stmt., UMF No. 13 & evidence cited therein.)

Defendants delivered possession of the Premises prior to the end of the term of the Lease. (Sep. Stmt., UMF No. 13 & evidence cited therein.) As of July 18, 2024, when the Premises was abandoned, the total monthly rent due and owing to plaintiffs was $171,000, exclusive of interest and late fees. (Sep. Stmt., UMF No. 13 & evidence cited therein.) The total amount of rent that would be due and owing to plaintiffs from July 18, 2024, to the lease expiration date on February 28, 2025, is $77,000. (Sep. Stmt., UMF No. 13 & evidence cited therein.)

Plaintiffs performed and completed all conditions, covenants, and promises to be performed under the Lease, except as excused, hindered, or prevented by defendants. (Sep. Stmt., UMF No. 15 & evidence cited therein.) After defendants delivered possession of the Premises, plaintiffs used their commercially reasonable best efforts to mitigate its damages by hiring a market firm to rent the vacant Premises. (Sep. Stmt., UMF No. 14 & evidence cited therein.) A new tenant has not yet been found to fill the vacant Premises. (Sep. Stmt., UMF No. 14 & evidence cited therein.)

The Lease entitles Plaintiffs to recover their attorneys’ fees and costs in the event they commence an action to enforce its provisions. (Sep. Stmt., UMF No. 16 & evidence cited therein.) Plaintiffs have suffered: (a) past due rent from March 1, 2023, to July 1, 2024 (the month defendants abandoned the Premises) in the amount of $171,000; (b) unpaid rent from August 1, 2024, to February 28, 2025 (the expiration date of the Lease) in the amount of $77,000; (c) interest on the unpaid rent from March 1, 2023, to February 28, 2025, in the amount of $24,418.38; and (d) late fees from March 1, 2023, to July 1, 2024, in the amount of $9,660. (Sep. Stmt., UMF No. 17 & evidence cited therein.)

Analysis:

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) The party moving for summary judgment “bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” (Id. at p. 845.) “Initially, the moving party bears a burden of production to make a prima facie showing of the nonexistence of any genuine issue of material fact. If he carries his burden of production, he causes a shift: the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a genuine issue of material fact.” (Ibid.)

A plaintiff moving for summary judgment 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.” (Code Civ. Proc., § 437c, subd. (p)(1).) To the extent a plaintiff bears the burden of proof by a preponderance of the evidence at trial, a plaintiff meets its burden on summary judgment by presenting evidence “that would require a reasonable trier of fact to find any underlying material fact more likely than not—otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1304, original italics).

For all reasons discussed herein, plaintiffs have met their burden to show that there exist no genuine issues of material fact and that they are entitled to judgment as a matter of law as to each cause of action alleged in the SAC. Therefore, and for all reasons further discussed below, the Court will grant the motion and direct plaintiffs to submit a proposed order reflecting the Court’s ruling herein.

The first cause of action for breach of contract:

The pleadings determine the issues to be addressed in a summary judgment motion. (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.)

The first cause of action for breach of contract alleged in the SAC is directed to Restaurant Sato only, and arises from an alleged breach of the Lease which caused plaintiffs to suffer damages. (SAC, ¶¶ 22-23 & 26.) “[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

As to the first element of the cause of action for breach of contract, plaintiffs present evidence showing that on October 1, 1993, plaintiffs, as the lessors of the Premises, entered into the Lease, which, giving effect to the plain and ordinary meaning of the language of the First Amendment, was assigned to Restaurant Sato who became the lessee of the Premises. (Pui Decl., ¶¶ 4-5 & Exhs. 1-2; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 524 (Lockyer).) The First Amendment was signed on August 20, 1999, by plaintiffs and ostensibly by Kazumoto as the President of Restaurant Sato. (Pui Decl., Exh. 1, pdf p. 24.)

The evidence also shows that plaintiffs and Restaurant Sato entered into the 2004 Agreement, the 2011 Agreement, the 2015 Agreement, and the 2019 Agreement, and that under the plain language appearing in each of these agreements, plaintiffs and Restaurant Sato agreed to, among other things, extend the term of the Lease and adjust the amount of monthly rent to be paid for the Premises. (Pui Decl., ¶¶ 7-11 & Exhs. 4-7.) The 2004 Agreement, the 2011 Agreement, the 2015 Agreement, and the 2019 Agreement are each signed by plaintiffs and ostensibly signed by Kazumoto as the President of Restaurant Sato. (Ibid.)

For all reasons discussed above, the evidence presented by plaintiffs is sufficient to show the existence of a contract between plaintiffs and Restaurant Sato, consisting of the Lease and each of the agreements described above.

As to the second element, the terms of the Lease effectively require that plaintiffs, “for and in consideration of the rents, covenants and conditions” contained in the Lease, deliver possession of the Premises. (Pui Decl., Exh. 1 at pdf p. 9.) The evidence presented by plaintiffs shows, or gives rise to an inference, that possession of the Premises was delivered by plaintiffs to Restaurant Sato pursuant to the Lease and the First Amendment, and that Restaurant Sato remained in possession of the Premises under the 2004 Agreement, the 2011 Agreement, the 2015 Agreement, and the 2019 Agreement, until Restaurant Sato redelivered possession as further discussed below.

Additional evidence appearing in the record, including in the declaration of plaintiffs’ counsel, Kevin R. Nimmons (Nimmons), reflects that on July 18, 2024, Restaurant Sato vacated and redelivered possession of the Premises to plaintiffs’ counsel, that plaintiffs accepted Restaurant Sato’s surrender of the Premises, and that plaintiffs thereafter took possession of the Premises. (Pui Decl., ¶ 15; Nimmons Decl., ¶ 9 & Exh. 12.) This evidence, including inferences reasonably deducible therefrom, is sufficient to show that, as of July 18, 2024, plaintiffs were excused from performing any obligations owed under the Lease, the 2004 Agreement, the 2011 Agreement, the 2015 Agreement, or the 2019 Agreement described above. (Civ. Code, § 1951.2, subd. (a); Rognier v. Harnett (1941) 45 Cal.App.2d 570, 573-575; see also Brown v. Grimes (2011) 192 Cal.App.4th 265, 277–278 [general discussion].) For these and all reasons further discussed above, plaintiffs have presented evidence sufficient to establish the element of performance or an excuse for nonperformance.

The evidence also shows that, under the 2019 Agreement, plaintiffs and Restaurant Sato agreed to extend the term of the Lease to February 28, 2025, that the monthly rent for the premises was $9,000 as of March 1, 2020, and that the monthly rent would thereafter increase annually at a rate of $500 per month. (Pui Decl., ¶ 11 & Exh. 7 at pdf p. 35.) The evidence further shows that, as of March 1, 2023, the monthly rent for the Premises was $10,500, and that the monthly rent for the Premises increased to $11,000 on March 1, 2024. (Ibid.)

The record further reflects that from March 2023 through July 2024, Restaurant Sato failed to pay monthly rent for the Premises pursuant to the terms of the Lease and the 2019 Agreement. (Pui Decl., ¶ 14.) The evidence also shows that on July 18, September 12, and October 19, 2023, and on May 15, 2024, plaintiffs’ counsel sent written communications to Restaurant Sato itemizing the unpaid rent due for the Premises under the Lease, and demanding that Restaurant Sato remit payment for, among other things, the unpaid rent and late fees. (Ibid.; Nimmons Decl., ¶¶ 4-7 & Exhs. 8-11.) A reasonable trier of fact could infer from the evidence presented by plaintiffs that Restaurant Sato did not respond to, and did not remit payment for the unpaid rent itemized in, these communications. (Nimmons Decl., ¶¶ 5 & 8 & Exhs. 8-11.)

The evidence and information described above is sufficient to show that Restaurant Sato defaulted in the payment of monthly rent due for the Premises under the Lease and the 2019 Agreement. For these reasons, the Court finds that plaintiffs have met their burden to show a breach of the Lease and the 2019 Agreement by Restaurant Sato.

The existence of a contract gives rise to a duty to perform, and “damages generally flow from the breach of that duty….” (Piedmont Capital Management, L.L.C. v. McElfish (2023) 94 Cal.App.5th 961.) Plaintiffs submit evidence showing that, as a result of Restaurant Sato’s default in the payment of rent due under the Lease and the 2019 Agreement, plaintiffs suffered damages in the amount of $248,000 for past-due and unpaid rent from March 2023, through February 28, 2025, the date on which the term of the Lease expired, exclusive of amounts ostensibly paid by Restaurant Sato in March 2023. (Pui Decl., ¶ 14; Nimmons Decl., ¶¶ 13 & 16.)

Evidence in the record also shows that, after Restaurant Sato signed the Notice of Abandonment, and re-delivered possession of the Premise to plaintiffs, plaintiffs hired a local commercial broker and real estate agent to market the Premises for lease, and have been unable to rent out the vacant Premises despite plaintiffs’ best attempts. (Pui Decl., ¶ 16.)

For all reasons discussed above, the Court finds that plaintiffs have, for present purposes, made a sufficient showing of a right to recover damages for unpaid rent in the amount of $248,000, as a result of Restaurant Sato’s default in the payment of rent due under the Lease and 2019 Agreement, and that plaintiffs acted reasonably to mitigate these damages. (Civ. Code, §§ 1951, 1951.2; 1951.4, 3300 & 3301; Lu v. Grewal (2005) 130 Cal.App.4th 841, 848-850.)

Plaintiffs also contend that, under the terms of the Lease, they are entitled to recover late fees in the amount of $9,660, and interest on the unpaid rent described above at 10 percent per annum under Civil Code section 3302, in the total amount of $24,418.38. (See Memo. at p. 8; Nimmons Decl., ¶¶ 14-16.)

The Lease expressly provides that if “LESSOR does not receive any rent payment within five (5) days after it is due, LESSEE shall pay LESSOR a late charge of Twenty Dollars ($20.00) per day; payment of such late charge shall not excuse or cure a default by LESSEE under this lease. Rent not paid when due shall bear interest from the date due until paid at the maximum rate an individual is permitted by law to charge.” (Pui Decl., ¶ 4 & Exh. 1 at p. 3.) The First Amendment and the 2019 Agreement each include provisions under which the terms of the Lease would “continue in full force and effect.” (Pui Decl., Exhs. 2 & 7.)

The evidence described above is sufficient to show that plaintiffs are entitled to recover late fees in the amount of $9,660, and interest on the unpaid rent described above in the amount of $24,418.38, pursuant to the terms of the Lease, the First Amendment, and the 2019 Agreement. (Civ. Code, §§ 1951.2, subd. (a)(4), 3300, 3302 & 3289 [unless otherwise stipulated, a contract obligation “shall bear interest at a rate of 10 percent per annum after a breach]; see also Lewis Jorge Construction Management, Inc. v. Pomona Unified School Dist. (2004) 34 Cal.4th 960, 968-969 [general discussion].)

Plaintiffs also assert that, under the terms of the Lease, they are entitled to recover attorney’s fees and costs which plaintiffs will address in a future memorandum of costs and motion. The Court will determine this issue upon the filing and service of an appropriate noticed motion.

For all reasons discussed above, plaintiffs have met their burden of presenting evidence sufficient to show that they are entitled to judgment as a matter of law as to the first cause of action for breach of contract alleged in the SAC. The burden now shifts to Restaurant Sato “to show that a triable issue of one or more material facts exists” as to that cause of action. (Code Civ. Proc., § 437c(p)(1); Aguilar, supra, 25 Cal.4th at p. 853.)

Noted above, Restaurant Sato has not filed any opposition to the motion of plaintiff. For these reasons, Restaurant Sato has failed to show the existence of any triable issues of fact as to any of the elements of the first cause of action for breach of contract alleged in the SAC, or as to any defense to that cause of action asserted by Restaurant Sato.

The second cause of action for breach of guaranty:

The second cause of action for breach of guaranty alleged in the SAC is directed to the Satos, and arises from what plaintiffs allege is a failure by the Satos to pay to plaintiffs the amounts owed by Restaurant Sato for monthly rent, interest, and late charges, which plaintiffs allege is a breach of the Guaranty by the Satos. (SAC, ¶ 29.)

Under Civil Code section 2787, a guarantor is defined as “one who promises to answer for the debt, default, or miscarriage of another….” (Civ. Code, § 2787.) The evidence presented by plaintiffs shows that the Guaranty was ostensibly signed by Kazumoto and Virginia on August 30, 1999. (Pui Decl., Exh. 3 at p. 2.) The signatures of the Satos were witnessed by Leslee Collunga who is identified as a Notary Public in and for the County of Santa Barbara and State of California. (Ibid.) Plaintiffs also submit undisputed evidence which is sufficient to show that the terms of the Guaranty were confirmed and continued under the 2004 Agreement, the 2011 Agreement, the 2015 Agreement, and the 2019 Agreement. (Id. at Exhs. 4-7.)

The Guaranty expressly references the Lease, and provides: that the Satos have received and read a copy of the Lease; that the Satos, “as a material inducement to and in consideration of [plaintiffs] consenting to a written ASSIGNMENT OF LEASE … between PRESTO PASTA-1, LTD., … and [Restaurant Sato] … UNCONDITIONALLY GUARANTEE and promise to and for the benefit of [plaintiffs] that [Restaurant Sato] shall perform the provisions of the [Lease] that [Restaurant Sato] is to perform”; that the Satos’ obligations under the Guaranty are “joint and several and are independent of” Restaurant Sato’s obligations” under the Lease; and that a “separate action may be brought or prosecuted against” either Kazumoto or Virginia. (Pui Decl., Exh. 3 at p. 1.)

The Guaranty further provides that, upon a default of Restaurant Sato under the Lease, plaintiffs “can proceed immediately against” the Satos, and that plaintiffs can enforce against the Satos “any rights that [they have] under the [Lease], or pursuant to applicable laws.” (Pui Decl., Exh. 3 at p. 1.) The Guaranty also includes provisions that the Lease “may be changed by agreement” between plaintiffs and Restaurant Sato without the consent of or notice to the Satos, and that the Guaranty shall “guarantee performance” of the Lease as changed. (Ibid.)

In addition, the terms of the Guaranty state that, to the extent plaintiffs have any rights they can enforce against Restaurant Sato upon a termination of the Lease, plaintiffs may enforce those rights against the Satos without notice or prior demand. (Pui Decl., Exh. 3 at p. 1.) Under the terms of the Guaranty, the Satos waived, among other things, the right to require plaintiffs to proceed against Restaurant Sato or to pursue other remedies, waived any defense based on a termination of Restaurant Sato’s liability, and waived any right to enforce any remedy that plaintiffs have or may acquire against Restaurant Sato. (Ibid.)

The “distinction between guarantors and sureties was abolished” by amendment to Civil Code section 2787. (Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 566, fn. 1.) Generally, a purported guaranty “is interpreted by the same rules as other contracts. [Citation.] That is, we seek to discover the intent of the parties, primarily by examining the words the parties have chosen [citation] giving effect to the ordinary meaning of those words.” (Corby v. Gulf Ins. Co. (2004) 114 Cal.App.4th 1371, 1375.) The terms of the guaranty “and the circumstances under which it was made determine the character and extent of the undertaking.” (Everts v. Matteson (1942) 21 Cal.2d 437, 449; see also Home Federal Savings & Loan Assn. v. Ramos (1991) 229 Cal.App.3d 1609, 1613 [a document purporting to be a guaranty by an individual must be interpreted “consistent with the expressed intent of the parties under an objective standard”] [original italics].)

Giving effect to the ordinary meaning of the language used by plaintiffs and the Satos in the Guaranty and described above, and considering the evidence presented by plaintiffs as to the circumstances under which the Guaranty was made, a reasonable trier of fact could find that the terms of the Guaranty are reasonably susceptible to the interpretation offered by plaintiffs, and that, pursuant to the Guaranty, the Satos promised to answer for any default of or debt owed by Restaurant Sato under the Lease and the 2019 Agreement, including with respect to any default by Restaurant Sato in the payment of monthly rent for the Premises. (Lockyer, supra, 107 Cal.App.4th at pp. 524-525.)

In addition, and for all reasons further detailed above, plaintiffs have met their burden to show that, from March 2023 through February 2025, Restaurant Sato defaulted in the payment of monthly rent due for the Premises under the Lease and the 2019 Agreement. The evidence presented by plaintiffs also shows that plaintiffs’ counsel notified the Satos of Restaurant Sato’s default in the payment of rent due under the Lease and 2019 Agreement, and that the Satos did not remit any payment for the unpaid rent owed by Restaurant Sato to plaintiffs. (See Pui Decl., ¶ 14; Nimmons Decl., ¶¶ 4-8, 11, & Exhs. 8-11.)

For all reasons discussed above, plaintiffs have met their burden of presenting evidence sufficient to establish the material elements of the second cause of action for breach of guaranty by the Satos alleged in the SAC, and to support a judgment in plaintiffs’ favor as to that cause of action. (Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 819.)

As the Satos also have not filed any opposition to the present motion, the same analysis and reasoning apply. For all reasons further discussed above, the Satos have failed to meet their burden to show the existence of any triable issues of fact as to any of the elements of the second cause of action alleged in the SAC, or as to any defense to that cause of action.