Sphear Investments LLC vs MOD Super Fast Pizza California LLC et al

Case Number

24CV05699

Case Type

Hearing Date / Time

Fri, 06/27/2025 - 10:00

Nature of Proceedings

CMC; (2) Motions to Compel; Motion for Summary Judgment

Tentative Ruling

(1) For all reasons discussed herein, the motion of plaintiff for summary judgment is granted.

(2) For all reasons discussed herein, the motion of plaintiff to compel defendant MOD Super Fast Pizza (California), LLC, dba MOD Super Fast Pizza to respond to plaintiff’s set one form interrogatories, requests for admission, and requests for production of documents is granted, in part. Except as otherwise herein granted, the motion is denied.

(3) For all reasons discussed herein, the motion of plaintiff to compel defendant MOD Super Fast Pizza, LLC, to respond to plaintiff’s set two form interrogatories, set one requests for admission, and set one requests for production of documents is granted, in part. Except as otherwise herein granted, the motion is denied.

(4) For all reasons discussed herein, the court awards sanctions in favor of plaintiff Sphear Investments, LLC, and against defendant MOD Super Fast Pizza (California), LLC, dba MOD Super Fast Pizza, in the amount of $1,540, payable to plaintiff’s counsel. Payment of sanctions is due by July 27, 2025.

(5) For all reasons discussed herein, the court awards sanctions in favor of plaintiff Sphear Investments, LLC, and against defendant MOD Super Fast Pizza, LLC, in the amount of $1,540, payable to plaintiff’s counsel. Payment of sanctions is due by July 27, 2025.

Background:

On October 14, 2024, plaintiff Sphear Investments, LLC, filed a complaint against defendants MOD Super Fast Pizza (California), LLC, dba MOD Super Fast Pizza (MOD California) and MOD Super Fast Pizza, LLC (MOD Pizza), alleging two causes of action: (1) breach of contract [lease] (against MOD California only), and (2) breach of contract [guaranty] (against MOD Pizza only).

The causes of action alleged in the complaint arise from a purported failure by MOD California to pay rent and other amounts due under a lease for premises owned by plaintiff and located within a shopping center known as the Village at Newbury Park I (the Shopping Center) in Thousand Oaks, California. (Compl., ¶¶ 8-10, 13-16, 17-22 & Exh. 1.) Plaintiff alleges that the subject lease includes a personal guaranty executed by MOD Pizza, which MOD Pizza purportedly breached by failing to ensure MOD California’s compliance with the terms of the subject lease. (Id. at ¶¶ 11-12, 15, 24-29 & Exh. 1 [Exh. E].)

On November 22, 2024, MOD California and MOD Pizza (collectively, the MOD Defendants) filed an answer to the complaint, generally denying its allegations and asserting twenty-one affirmative defenses.

On January 31, 2025, plaintiff filed a motion for an order granting summary judgment in its favor as to the causes of action alleged in the complaint, on the grounds that there exist no triable issues of material fact and that plaintiffs are entitled to judgment as a matter of law.

Court records reflect that the MOD Defendants did not, jointly or separately, timely file any opposition to plaintiff’s motion for summary judgment.

On February 21, 2025, plaintiff filed a motion for an order (the MOD California MTC) compelling MOD California to respond to plaintiff’s set one form interrogatories and request for production of documents, and deeming the truth of matters and the genuineness of documents specified in plaintiff’s set one requests for admission admitted by MOD California.

Also on February 21, 2025, plaintiff separately filed a motion for an order (the MOD Pizza MTC) compelling MOD Pizza to respond to plaintiff’s set one request for production of documents and set two form interrogatories, and deeming the genuineness of documents and the truth of the matters specified in plaintiff’s set one requests for admission admitted by MOD Pizza.

The MOD California MTC and the MOD Pizza MTC each include separate requests for an award of sanctions against MOD California and MOD Pizza.

Court records reflect that MOD California did not file a timely opposition to the MOD California MTC, and that MOD Pizza did not file a timely opposition to the MOD Pizza MTC.

On May 9, 2025, the court entered a Minute Order (the Minute Order) noting that attorney James Till appeared at the hearing on the motions described above, and that attorney Till informed the court that counsel was in the process of substituting into this case and requested an opportunity to oppose the motions. Pursuant to the Minute Order, the court made the following ruling:

“Plaintiff’s motion for summary judgment, motion to compel defendant MOD Super Fast Pizza (California), LLC, dba MOD Super Fast Pizza to provide responses to plaintiff’s set one form interrogatories, requests for admission, and requests for production of documents, and motion to compel defendant MOD Super Fast Pizza, LLC, to provide responses to plaintiff’s set two form interrogatories, set one requests for admission, and set one requests for production of documents, are each continued to June 27, 2025. Defendants shall, on or before May 22, 2025, file and electronically serve an appropriate motion for relief from defendants’ failure to timely file oppositions to plaintiff’s motions described above. Any motion for relief from a failure to timely file oppositions to plaintiff’s motions that may be filed by defendants shall be set for hearing on June 27, 2025. Plaintiff shall file and serve any opposition to any motion for relief that may be filed by defendants within the time prescribed in Code of Civil Procedure section 1005, which shall also govern defendants’ time to reply to plaintiff’s opposition.” (May 9, 2025, Minute Order.)

On May 22, 2025, MOD California and MOD Pizza separately filed substitutions of attorney notifying the court and all parties that the MOD Defendants’ new legal representative is James Till of the Till Law Group. Concurrently with these substitutions of attorney, the MOD Defendants filed a notice (the Notice) stating:

“Current counsel for Defendants (who is in the process of substituting into this matter) has reached out to Plaintiff’s counsel and offered a resolution with respect to the pending discovery motions, pursuant to which Defendants would withdraw all objections to the discovery requests (other than the attorney-client privilege and work product doctrine, to the extent applicable), and provide supplemental responses and documents within a reasonable time period (to the extent that any documents or responses were withheld due to objections asserted in the written responses). In addition, counsel for Defendants expressed interest in continuing settlement discussions with Plaintiff, and will engage in such discussions in the coming days leading up to the hearing in this matter. Due to extreme financial distress (Defendants are facing dozens of similar lawsuits for unpaid rent and damages arising from shuttered locations across the country), Defendants have decided not to substantively oppose the summary judgment motion, and will not challenge the merits of Plaintiff’s damage claim for unpaid rent, late fees, and interest (Defendants request that Plaintiff make an evidentiary showing regarding the amounts actually incurred for legal fees and costs before such amount is included in a judgment).” (May 22, 2025, Notice of Response, p. 1, l. 26 – p. 2, l. 11.)

On June 11, 2025, plaintiff filed a response to the Notice requesting that the court grant the motion for summary judgment, and award to plaintiff discovery sanctions requested in the MOD California MTC and MOD Pizza MTC. (June 11, 2025, Response to Notice at p. 1, ll. 26-27 & p. 2, ll. 4-9.)

Plaintiff’s motion for summary judgment:

In support of the motion for summary judgment, plaintiff submits a separate statement setting forth material facts, with references to supporting evidence, which plaintiff contends are undisputed. Noted above, the MOD Defendants have not submitted a separate statement responding to each of these material facts and have not asserted any objections to the evidence and information presented by plaintiff.

It is undisputed that on April 8, 2014, MOD California and plaintiff entered into a written lease (the Lease) for premises located at 1015 Broadbeck Drive, Suite G (the premises), in Thousand Oaks, California. (Sep. Stmt., UMF No. 1 & evidence cited therein.) The term of the Lease commenced on September 5, 2014, and expired on September 30, 2024. (Ibid.)

On the same date (April 8, 2014), MOD Pizza signed exhibit E (the Guaranty of Lease) to the Lease. (Sep. Stmt., UMF No. 2 & evidence cited therein.) By signing the Guaranty of Lease, MOD Pizza agreed to absolutely and unconditionally guarantee the full and faithful performance of all the terms of the Lease by MOD California. (Ibid.)

Pursuant to a “First Amendment”, the Lease was amended on July 20, 2020, to include a brief rent deferral period as a result of the Covid-19 pandemic. (Sep. Stmt., UMF No. 3 & evidence cited therein.) The First Amendment, which was signed on July 20, 2020, includes a joinder by MOD Pizza. (Ibid.)

From March 1 through the expiration of the term of the Lease on September 30, 2024, MOD California stopped paying rent and other amounts due under the Lease. (Sep. Stmt., UMF Nos. 4-5 & evidence cited therein.) As of the expiration of the Lease, MOD California owed to plaintiff past due minimum rent in the amount of $100,463.18. (Id. at UMF No. 6 & evidence cited therein.) No payment has been received by plaintiff from MOD California or MOD Pizza for any amounts that became due under the Lease on or after March 1, 2024. (Id. at UMF No. 7 & evidence cited therein.)

Plaintiff has complied with all of its obligations under the Lease. (Sep. Stmt., UMF No. 8 & evidence cited therein.) As a result of MOD California’s breach of the Lease, plaintiff has been damaged in the amount of $114,244.35, which includes: (a) past due rent from March through September 2024 in the amount of $100,463.18; (b) late charges from March through September 2024 in the amount of $4,018.53; and (c) interest on unpaid rent and late charges from March through September 2024 in the amount of $9,762.65. (Id. at UMF No. 9 & evidence cited therein.)

The supporting evidence referenced in plaintiff’s separate statement includes a declaration of Tyler Hansen (Hansen). In that declaration, Hansen states that Investec Management Corporation (Investec), manages the Shopping Center for plaintiff. (Hansen Decl., ¶ 2.) Hansen has been an employee of Investec since 2007 and has been Investec’s Commercial Property Supervisor since August 2017. (Ibid.) Hansen is responsible for carrying out plaintiff’s obligations under its leases with tenants at the Shopping Center, ensuring that all tenants comply with the terms of their respective leases, and monitoring the payment of rent and other obligations by tenants of the properties managed by Investec. (Id. at ¶¶ 2 & 11.)

Attached to the Hansen declaration as exhibit 1 is a copy of the Lease, which Hansen has reviewed and is familiar with. (Hansen Decl., ¶ 3 & Exh. 1.) Hansen asserts that on April 8, 2014, Newbury Park Village, LLC, (Newbury Park), who is plaintiff’s predecessor-in-interest, entered into the Lease with MOD California. (Id. at ¶ 3 & Exh. 1.) According to Hansen, the “Rent Commencement Date” under the Lease was September 5, 2014, as reflected in a letter dated September 29, 2014, from Newbury Park to “Adrienne Kirkland” at MOD Pizza. (Id. at ¶¶ 3, 5 & Exh. 2 [Sept. 29, 2014, Letter].)

Hansen sets forth the relevant terms of the Lease as to: the monthly rent due from MOD California; MOD California’s obligation to pay a pro rata share of property taxes for the Shopping Center and the manner in which that pro rata share is calculated; MOD California’s obligation to pay a pro rata share of plaintiff’s insurance costs and other expenses and the manner in which that pro rata share is calculated; and MOD California’s obligation to pay a pro rata share of “common area expenses” and the manner in which that pro rata share is calculated. (Hansen Decl., ¶¶ 4-8, 14-16 & Exh. 1, ¶¶ 2.1, 5.1, 5.6-5.9, 19.2, 30.10, & 30.13.)

Information appearing in the Hansen declaration also shows that the Guaranty of Lease is attached as exhibit E to the Lease and sets forth MOD Pizza’s obligations as to the payment of rent and the performance of MOD California’s obligations under the Lease. (Hansen Decl., ¶ 9.)

A copy of the First Amendment described above is also attached to the Hansen declaration. (Hansen Decl., ¶ 10 & Exh. 3.)

Hansen declares that, in the regular course of its business, Investec keeps and maintains tenant ledgers in to monitor tenant payment activity, and that he is familiar with this practice in his role as Commercial Property Supervisor. (Hansen Decl., ¶ 11.) Hansen further declares that he monitored the payments MOD California had agreed to make under the Lease. (Ibid.)

Hansen submits a copy of a “Tenant Ledger” which, according to Hansen, states the amounts owed and payments made by MOD California from September 2022 through September 2024. (Hansen Decl., ¶ 11 & Exh. 4.) Hansen explains that this Tenant Ledger is an “electronic record made by a computer accounting system, maintained by Investec’s bookkeepers … prepared in the regular course of its business.” (Id. at ¶ 11.) Hansen also describes the manner in which the ledger is prepared by Investec’s bookkeepers upon receipt of rent payments from tenants. (Ibid.)

Hansen sets forth a description and calculation of plaintiff’s damages through May 2, 2025, which is based on information appearing in the Tenant Ledger with respect to the amounts due and owing from MOD California under the Lease from March through September 30, 2024, inclusive of credits applied by plaintiff to reduce the rent owed by MOD California in March 2024. (Hansen Decl., ¶ 12-17 & 19-23.)

Hansen states that plaintiff “performed and completed all conditions, covenants, and promises to be performed under the Lease, except as excused, hindered, or prevented by” the MOD Defendants. (Hansen Decl., ¶ 18.)

The above summary is not intended to be exhaustive, and the court has considered all admissible evidence submitted in support of plaintiff’s motion.

The MOD California MTC:

In support of the MOD California MTC, plaintiff submits the declaration of its counsel, Kevin R. Nimmons (Nimmons), who states that on December 10, 2024, plaintiff electronically served on MOD California its set one form interrogatories, requests for admission, and requests for production of documents. (Nimmons Decl., ¶ 3 & Exhs. 1-3.) According to Nimmons, responses to each of these discovery requests were due from MOD California on January 13, 2025. (Ibid.) MOD California has not objected or responded to the discovery requests at issue, and did not request an extension of time to provide responses. (Id. at ¶ 4.)

Nimmons further states that on January 30, 2025, he spoke to MOD California’s then counsel Julie Glazer by telephone, and that Glazer acknowledged that MOD California had not responded to any of the discovery requests at issue in the MOD California MTC. (Nimmons Decl., ¶ 5.) According to Nimmons, Glazer agreed that MOD California would serve responses, without objection by February 7, 2025. (Ibid.) Glazer also explained that she was in the process of changing law firms. (Ibid.)

Nimmons did not receive MOD California’s responses to the discovery requests described above on February 7, 2025. (Nimmons Decl., ¶ 5.) On that date, Nimmons sent an email to Glazer stating that if responses were not received by the end of the day, MOD California would file a motion to compel and seek sanctions. (Nimmons Decl., ¶ 6.) Plaintiff did not receive any responses to the discovery requests at issue. (Ibid.)

The MOD Pizza MTC:

The separate Nimmons declaration submitted by plaintiff in support of the MOD Pizza MTC includes the same information described above as to the set two form interrogatories, set one requests for admission, and set one requests for production of documents electronically served by plaintiff on MOD Pizza on December 10, 2024. (See Nimmons Decl. [MOD Pizza MTC], ¶¶ 3-7.)

Analysis:

(1) Plaintiff’s Motion for Summary Judgment

“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).) “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.” (Id. at p. 845.)

Relevant here, a plaintiff moving for summary judgment can meet its burden “of showing that there is no defense to a cause of action if that [plaintiff] 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).) The plaintiff must present 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, plaintiff has met its burden to show that there exist no genuine issues of material fact and that plaintiff is entitled to judgment as a matter of law as to each cause of action alleged in the complaint. Therefore, under the totality of the circumstances present here and for all reasons further discussed below, the court will grant the motion of plaintiff for summary judgment.

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 is alleged against MOD California only and arises from MOD California’s purported breach of the Lease as further described above. “[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 which requires plaintiff to show the existence of a contract, plaintiff has presented evidence showing that plaintiff and MOD California are parties to the Lease, and that the Lease was ostensibly signed by MOD California and Newbury Park on April 8, 2014. (Hansen Decl., ¶ 3 & Exh. 1.) The evidence also shows that plaintiff and MOD California entered into the First Amendment on July 20, 2020. This evidence is sufficient to show the existence of a written contract between plaintiff and MOD California.

As to the second element which requires plaintiff to show that it performed, or was excused from performing, the contract, the available information and evidence shows that the Lease imposes an obligation on plaintiff to deliver the premises in “as is” condition, and includes obligations relating to tenant allowances, options to extend, and insurance, among other things. (Hansen Decl., Exh. 1 at p. 2 & ¶¶ 3.2, 4.2, 9.6.)

Though the information offered in the Hansen declaration is conclusory as to plaintiff’s performance of its obligations under the Lease and whether plaintiff was excused from performing these obligations, absent any objection to the evidence offered by plaintiff or information and evidence sufficient to dispute whether plaintiff performed or was excused from performing its obligations under the Lease, the present record is sufficient to show, expressly and by inference, that possession of the premises was delivered to MOD California, and that MOD California’s purported breaches of the Lease excused plaintiff from performing its obligations under the Lease. (Brown v. Grimes (2011) 192 Cal.App.4th 265, 277-278 [general discussion].)

The evidence offered by plaintiff also reflects that, pursuant to the Lease, MOD California agreed to pay minimum rent for the premises, beginning on September 5, 2014, in the amount of $8,475 for months 1 through 60 of the Lease term, in the amount of $9,534.38 for months 61 through 120 of the Lease term, and a pro rata share of property taxes, insurance costs, and common area expenses for the Shopping Center. (Hansen Decl., ¶ 4-8 & Exh. 1 at p. 1 & ¶¶ 5.6-5.8 & 19.2.) The Lease further provides that rent for the premises was due on the first day of each month. (Id. at ¶ 12 & Exh. 1, ¶¶ 5.1 & 5.9.)

The record also reflects that plaintiff did not receive rent payments from MOD California from March 1 through the date the Lease expired on September 30, 2024. (Hansen Decl., ¶ 12.)

The evidence and information offered by plaintiff and described above is sufficient to show a failure by MOD California to perform its obligations under the Lease. Absent evidence or information showing that MOD California’s failure to pay rent and other payments due under the Lease was justified, the evidence presented by plaintiff is sufficient to establish that MOD California breached the terms of the Lease. (Central Valley General Hospital v. Smith (2008) 162 Cal.App.4th 501, 514.)

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.) Plaintiff contends that the damages it incurred as a result of MOD California’s failure to pay rent due under the Lease, inclusive of late charges and interest, total $114,244.36. (Hansen Decl., ¶¶ 19-20.)

The evidence submitted by plaintiff shows that, pursuant to the terms of the Lease, the amount that MOD California was required to pay from March 1 through September 30, 2024, as minimum rent for the premises and a pro rata share of taxes, insurance costs, and common area costs further described above, totals $100,463.18. (Hansen Decl., ¶¶ 11, 13, 20-23.)

The Lease also provides that, to the extent a payment due from MOD California is not received by plaintiff, plaintiff may impose a late charge equal to $250 or 4 percent of the amount due and unpaid, whichever is higher. (Hansen Decl., ¶ 16 & Exh. 1, ¶ 30.10.) Available evidence and information shows that, as a result of MOD California’s failure to pay the amounts due under the Lease from March 1 through September 30, 2024, MOD California incurred late charges authorized under the Lease, which total $4,018.53. (Id. at ¶¶ 20 & 22-23.)

The Lease further provides that, to the extent MOD California fails to pay rent or other amounts due under the Lease, these amounts will bear interest at the rate set forth in the Lease. (Hansen Decl., ¶¶ 14-15 & Exh. 1, ¶¶ 5.9 & 30.13.) Hansen explains that, because the interest rate set forth in the Lease exceeds 11 percent, plaintiff has applied a post judgment interest rate of 10 percent to the amounts due from and unpaid by MOD California. (Id. at ¶ 22.) Absent any objection, the evidence and information presented in the Hansen declaration is sufficient to show that plaintiff may recover interest pursuant to the terms of the Lease on amounts due from MOD California between March 1 through September 30, 2024, which totals $9,762.65. (Id. at ¶¶ 20 & 22-23; see also Civ. Code, § 3289.)

For all reasons discussed above, plaintiff has made a sufficient evidentiary showing of a right to recover damages in the amount of $114,244.36, as a result of MOD California’s default in the payment of rent and other sums due under the Lease. (Civ. Code, §§ 1951, 3300-3302, 3289; see also Lewis Jorge Construction Management, Inc. v. Pomona Unified School Dist. (2004) 34 Cal.4th 960, 968-969 [general discussion].)

Plaintiff also appears to contend that, under the terms of the Lease, it may recover attorney’s fees and costs which plaintiff will ostensibly address in a future memorandum of costs and noticed motion. The court will determine whether or to what extent plaintiff may recover attorney’s fees in this action upon the filing and service of an appropriate noticed motion.

For all reasons discussed above, plaintiff has met its burden to present evidence sufficient to show that plaintiff is entitled to judgment as a matter of law as to the first cause of action for breach of contract alleged in the complaint. The burden now shifts to MOD California “to show that a triable issue of one or more material facts exists” as to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(1); Aguilar, supra, 25 Cal.4th at p. 853.)

Noted above, MOD California has not submitted a separate statement in response to the separate statement filed by plaintiff. “The separate statement is required, not discretionary, on the part of each party, and the statutory language makes the failure to comply with this requirement sufficient grounds to grant the motion.” (Whitehead v. Habig (2008) 163 Cal.App.4th 896, 902.) “When the opposing party fails to file a separate responsive statement the trial court is presented with two choices. It can grant the motion for summary judgment based on the absence of the separate statement or it can continue the motion or otherwise permit the filing of a proper separate statement. [Citation.] Whichever choice the court makes must be based on the circumstances before the court.” (Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, 94.)

For all reasons discussed above, MOD California has failed to show the existence of any triable issues of fact as to the elements of the first cause of action for breach of contract alleged in the complaint, or as to any defense to that cause of action.

In addition, and as further discussed above, the court continued the hearing on plaintiff’s motion to permit MOD California to file an appropriate motion for relief from its failure to present opposition. Notwithstanding the court’s granting of a continuance for this purpose, MOD California states in the Notice that it does not intend to substantively oppose plaintiff’s motion for summary judgment.

The second cause of action for breach of guaranty:

As further discussed above, the second cause of action for breach of guaranty alleged in the complaint is directed to MOD Pizza and arises from what an alleged failure by MOD Pizza to satisfy MOD California’s obligations under the Lease.

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 and information described above shows that the Guaranty of Lease identifies MOD Pizza as the guarantor, and was ostensibly signed on April 8, 2014, by Greta Pass, who is identified as the “VP of Real Estate” for Mod Pizza. (Hansen Decl., Exh. 1 [Exh. E, pp. 1 & 4.])

Under the express terms of the Guaranty of Lease, MOD Pizza “absolutely and unconditionally guarantees the full and faithful performance of each and all of the terms, covenants and conditions of the Lease to be kept and performed by [MOD California], within the time and in accordance with the terms of the Lease, including without limitation the payment of all sums of money required to be paid by [MOD California] under the terms of the Lease (including, without limitation, Minimum Rent, Real Property Taxes and common area expenses (each, as defined in the Lease), regardless of any law, regulation or order now or hereafter in effect (collectively, the ‘Tenant Obligations’).” (Hansen Decl., Exh. 1 [Exh. E, ¶ 1].)

The Guaranty of Lease further provides that it is a “continuing guaranty and, by this instrument, [MOD Pizza] guarantees the prompt payment of any and all Tenant Obligations which may now or hereafter exist or accrue from [MOD California] to Landlord under the Lease. Without limiting the foregoing, this Guaranty shall continue in favor of Landlord notwithstanding any extension, holdover, modification, or alteration of the Lease (or any security for Tenant’s Obligations held by Landlord), by and between the parties thereto, or their successors or assigns, and notwithstanding any assignment of the Lease, with or without the consent of Landlord, and no extension, holdover, modification, alteration or assignment thereof shall in any manner release or discharge Guarantor, and Guarantor hereby consents thereto.” (Hansen Decl., Exh. 1 [Exh. E, ¶ 2].)

In addition, under the Guaranty of Lease, the liability of MOD Pizza is “primary; and in any right of action which shall accrue to Landlord under the Lease, Landlord may, at its option, proceed against [MOD Pizza] without having commenced any action, or having obtained any judgment, against [MOD California].” (Hansen Decl., Exh. 1 [Exh. E, ¶ 3].) The Guaranty of Lease also sets forth the defenses expressly waived by MOD Pizza under its terms. (Hansen Decl., Exh. 1 [Exh. E, ¶ 6].)

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 a 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 set forth in the Guaranty of Lease and described above, and considering that the evidence offered by plaintiff shows that the Guaranty of Lease expressly references and was executed concurrently with the Lease, a reasonable trier of fact could find that the Guaranty of Lease is reasonably susceptible to the interpretation offered by plaintiff, and that under its terms, MOD Pizza promised to answer for any default of MOD California under the Lease, including with respect to the payment of monthly rent and other amounts due from MOD California under the Lease. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 524-525.)

For all reasons discussed above, plaintiff has met its burden to show that, from March 1 through September 30, 2024, MOD California defaulted in the payment of monthly rent and other sums due under the Lease. The evidence presented by plaintiff is also sufficient to show that MOD Pizza did not render payment for any amounts due from and unpaid by MOD California under the Lease. (Hansen Decl., ¶ 12.) Therefore, and 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 the Guaranty of Lease by MOD Pizza alleged in plaintiff’s complaint, and to support a judgment in plaintiffs’ favor as to this cause of action. (Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 819.)

MOD Pizza has not filed a separate statement in response to plaintiff’s separate statement and has also stated in the Notice its intention not to oppose the present motion. The same analysis and reasoning apply. For all reasons further discussed above, MOD Pizza has failed to meet its burden to show the existence of a triable issues of material fact as to the second cause of action alleged in the complaint, or any defense to that cause of action.

(2) The MOD California MTC and the MOD Pizza MTC

As the court will, for all reasons further discussed above, grant plaintiff’s motion for summary judgment, the MOD California MTC and the MOD Pizza MTC are moot. Though these motions are mooted by the court’s ruling above, plaintiff requests an award of sanctions against MOD California and MOD Pizza. Under the circumstances present here, the court will narrow the scope of the MOD California MTC and the MOD Pizza MTC to the issue of sanctions. (Cal. Rules of Court, rule 3.1348(a); see also Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409 [general discussion of the court’s discretion to determine a moot motion].)

In the notices of the MOD California MTC and the MOD Pizza MTC, plaintiff requests the imposition of monetary sanctions against MOD California and MOD Pizza only, and not the MOD Defendants’ counsel. (Notice of MOD California MTC at p. 2, l. 9; Notice of MOD Pizza MTC at p. 2, ll. 9-10; see also Code Civ. Proc., § 2023.040 [a request for sanction must identify, in the notice of motion, “every person, party, and attorney against whom the sanction is sought”].)

The court “shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel” a response to interrogatories or an inspection demand, “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §§ 2030.290, subd. (c); 2031.300, subd. (c).) A party requesting admissions may also move for monetary sanctions. (Code Civ. Proc., § 2033.280, subd. (b).)

The MOD Defendants have not filed any opposition to the MOD California MTC or the MOD Pizza MTC. Further, in the Notice, the MOD Defendants offer no reasoned argument sufficient to demonstrate any justification for their ostensible failure to provide responses to the discovery requests at issue in the MOD California MTC or the MOD Pizza MTC. As there is insufficient evidence or information otherwise demonstrating why the imposition of sanctions would be unjust, an award of sanctions in favor of plaintiff and against MOD California and MOD Pizza is warranted under the circumstances present here.

In the Nimmons declaration submitted in support of the MOD California MTC and further described above, Nimmons declares that he and attorney Timothy J. Trager (Trager) expended, respectively, 1 hour and 3.6 hours to prepare the MOD California MTC. (Nimmons Decl., ¶ 10.) The hourly rate charged by Nimmons is $500, and the hourly rate charged by Trager is $475. (Ibid.)

There is no information to suggest that the time spent by counsel to prepare the MOD California MTC is unreasonable. Further, based on the court’s own knowledge and familiarity with the legal market, the court finds that the hourly rates charged by Nimmons and Trager are reasonable. (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.)

In the Nimmons declaration submitted in support of the MOD Pizza MTC, Nimmons states that he and attorney Trager also expended, respectively, 1 hour and 3.6 hours to prepare the MOD Pizza MTC at the same hourly rates described above. (Nimmons Decl., ¶ 10.)

In the Nimmons declarations submitted in support of the MOD California MTC and the MOD Pizza MTC, Nimmons states that he estimates expending an hour to prepare a reply to MOD California’s opposition to the MOD California MTC, an hour to prepare a reply to MOD Pizza’s opposition to the MOD Pizza MTC, and 2 hours to attend the hearing on each of these motions. (Nimmons Decls., ¶¶ 12.)

“The principle of reasonableness means a trial court has discretion to reduce the amount of fees and costs requested as a discovery sanction in order to reach a reasonable award.” (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771, 791.) The amount of the monetary sanctions awarded in each case needs to reflect the reasonable expenses incurred as a result of a party’s misuse of the discovery process.

While the court agrees that counsel for plaintiff necessarily spent time to prepare the MOD California MTC and the MOD Pizza MTC prior to the date the MOD Defendants filed the substitutions of attorney and Notice described above, and that the hourly rates charged by counsel are reasonable, the motions at issue are nearly if not wholly identical. Therefore, time expended by plaintiff’s counsel to prepare one of these motions necessarily includes time spent to prepare the other. For this reason, the sanctions requested by plaintiff in the MOD California MTC and the MOD Pizza MTC reflect duplicative efforts which are not reasonable or subject to compensation. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

Moreover, as neither of the MOD Defendants have filed and ostensibly do not intend to file oppositions to either the MOD California MTC or the MOD Pizza MTC, plaintiff’s counsel will not expend time to review any opposition or prepare a reply. To the extent appearances at the hearing on these motions is necessary, plaintiff’s counsel fails to sufficiently explain why counsel will be required to expend two hours of time to attend the hearing on these relatively uncomplicated motions.

For all reasons further discussed above, and under the circumstances present here including the court’s experience with attorney fee issues, the court finds that 4 hours of attorney Trager’s time at the reasonable hourly rate of $475, and 2 hours of attorney Nimmons’ time at the reasonable hourly rate of $500, for a total of $2,900, constitutes the reasonable amount of attorney’s fees incurred by plaintiff as a result of preparing the nearly identical MOD California MTC and the MOD Pizza MTC, and the MOD Defendants’ misuse of the discovery process, for which monetary sanctions are appropriately awardable.

The court will also award filing fees incurred by plaintiff in the amount of $90 for the MOD California MTC and $90 for the MOD Pizza MTC. (Nimmons Decls., ¶¶ 10.)

For all reasons discussed above, the court will grant the MOD California MTC, in part, and award sanctions in favor of plaintiff and against MOD California in the amount of $1,540. Further, and for all reasons discussed above, the court will grant the MOD Pizza MTC, in part, and award sanctions in favor of plaintiff and against MOD Pizza in the amount of $1,540.