Filed 10/16/14 Plowden v. Swami International CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


SARA PLOWDEN,                                                        B248613

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. YC061732)
         v.

SWAMI INTERNATIONAL, INC.,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Laura C.
Ellison, Judge. Affirmed.
         Sara Plowden, in pro. per., for Plaintiff and Appellant.
         Citron & Citron, Joel F. Citron, Thomas H. Citron, Katherine A. Tatikian, for
Defendant and Respondent.
                                    INTRODUCTION
       Plaintiff and appellant Sara Plowden leased two properties—13992 and 13994
Crenshaw Boulevard in Gardena, California—from defendant and respondent Swami
International, Inc. (Swami). Plowden brought an action for fraud and breach of contract
against Swami concerning the condition of the properties. Swami moved for summary
judgment or, alternatively, summary adjudication (summary judgment motion) against
Plowden’s third amended complaint. Plowden did not file an opposition to the summary
judgment motion. The trial court granted Swami’s summary judgment motion, and
Plowden appeals. We affirm.


                                    BACKGROUND
       On October 1, 2006, Plowden leased the commercial property at 13992 Crenshaw
Boulevard (13992 Commercial Lease) from Swami. The lease term was for one year
from October 1, 2006, to September 30, 2007. Rent was $1,075 per month. At the end of
the lease term, Plowden had the option to renew the lease for an additional 36-month
term at a negotiated rent provided that she was not in default on the lease.
       The 13992 Commercial Lease included a “Care and Maintenance of Premises”
clause that stated, “Lessee acknowledges that the premises are in good order and repair,
unless otherwise indicated herein. Lessee shall, at his own expense and at all times,
maintain the premises in good and safe condition, including plate glass, electrical wiring,
plumbing and heating installations and any other system or equipment upon the premises
and shall surrender the same, at termination hereof, in as good condition as received,
normal wear and tear excepted. Lessee shall be responsible for all repairs required,
excepting the roof, exterior walls, structural foundations and: ______________ [w]hich
shall be maintained by Lessor. . . .” The lease also included an integration clause, which
provided that the lease was the entire agreement between Plowden and Swami and could
not be modified except by a writing signed by both parties.
       On April 1, 2007, Plowden leased the commercial property at 13994 Crenshaw
Boulevard (13994 Commercial Lease) from Swami. The 13994 Commercial Lease

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contained the same terms as the 13992 Commercial Lease set forth above except that the
one-year term of the 13994 Commercial Lease was from April 1, 2007, through March
31, 2008, the rental rate was $1,480 per month, and the renewal option was for a 12-
month term.
        On February 19, 2010, Plowden brought an action against Swami that ultimately
became the third amended complaint. In her third amended complaint, Plowden asserted
causes of action for fraud and breach of contract and sought recovery of compensatory
and punitive damages. Plowden’s fraud cause of action sought $130,000 in
compensatory damages and punitive damages as determined by a jury or the trial court.
Plowden alleged that Swami defrauded her on or about December 31, 2009. She based
her fraud cause of action on three theories: intentional or negligent misrepresentation,
concealment, and making a promise without the intent to perform.
        In support of her intentional or negligent misrepresentation theory, Plowden
alleged that she and Swami entered leases that contained the representation that she
would not be responsible for repairing the roof, that the roof had a leak that pre-existed
the lease, and that the leaking roof caused damage inside the premises. She further
alleged that neither of the units she leased was in good order or repair and that Swami
and its employees knew or should have known of the condition of the premises. Plowden
alleged that Swami knew the representations were false when made and that the
representations were made with the intent to defraud her and cause her to rent the two
units. Plowden did not know the representations were false and justifiably relied on
them.
        In support of her concealment theory, Plowden alleged that Swami concealed the
fact that the electrical wiring and “apparatuses,” the roof, and the heating and air
conditioning units were not in good repair. Swami concealed those facts with the intent
to defraud her and cause her to rent the two units. Plowden was unaware of the
concealed or suppressed facts and would not have rented the two units if she had known
of the concealed or suppressed facts.



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       In support of her making a promise without the intent to perform theory, Plowden
alleged that Swami, through its employees, stated that it would repair the leaking roof and
the electrical wiring and control panels, but only made feeble attempts to do so. Swami
made the promise without any intention of performing and with the intent to defraud and
induce Plowden to rely on it and rent the two units. Plowden was unaware of Swami’s
intention not to perform the promise and acted in reliance on the promise.
       Plowden testified at her deposition that she spoke with Swami employee Pat
Mitchell about leasing the commercial property at 13992 Crenshaw Boulevard. Mitchell
did not say anything to Plowden “about the building, about the property.” Plowden
testified that she knew the roof at 13992 Crenshaw Boulevard leaked before she signed
the lease. Asked why she moved in if she thought the roof leaked, Plowden responded,
“Because they fixed it. They fixed it.” Plowden testified that she signed the lease
acknowledging that the premises were in good order and repair because “they” repaired
the leaks before she signed the lease. She testified that she did not have the lease
amended to extend the term after October 2007.
       As for the 13994 Commercial Lease, Plowden was asked at her deposition, “It
says that the terms of the lease shall be for a period of one year, commencing on the 1st
day of April, 2007, and it extends . . . through March 31st, 2008. Did you ever expand
the lease terms to that?” She replied, “No, they just—just the implied—the lease
implied.”
       In her breach of contract cause of action, Plowden alleged that under the leases she
“would be responsible for repair to premises believed to be ‘in good order’ when
originally rented, and [Swami] would be responsible for roofs, exterior walls, and
structural foundations” at 13992 and 13994 Crenshaw Boulevard. The agreements were
written and oral and began with a written agreement on April 1, 2007. Plowden alleged
that Swami breached the leases on or about December 31, 2009, “[b]y intentionally and
fraudulently concealing repairs that were needed to roofs, heating and air conditioning
ujits [sic], as well as electrical wiring and apparatuses that it never fixed over a five year
period, or in the case of the heating and air conditioning units, only when it was too late

                                               4
for it to do [Plowden] any good for the purposes of conducting [a] ‘Production and music
industry’ business, resulting in a loss of business and clients because of the poorly
maintained facilities.” Plowden alleged that she performed all obligations under the
leases except those she was prevented or excused from performing. Plowden sought
$130,000 in damages and “[r]ecovery of possession of premises, and each of them, in
total and good repair, including 100% functioning electrical wiring and apparatuses,
permanent repair of leaking roofs, as well as heating and air conditioning units.”
       Plowden testified at her deposition that she did not pay rent for 13994 Crenshaw
Boulevard in 2009. She admitted that she was a combined four or five months behind in
rent for 13992 and 13994 Crenshaw Boulevard. According to Plowden, “they”—
presumably Swami—filed an unlawful detainer action with respect to 13994 Crenshaw
Boulevard in January or February 2009, after she first “messed up”—apparently when
she failed to pay rent the first time. By that time, she had already moved out of 13992
Crenshaw Boulevard.
       Swami moved for summary judgment. Plowden did not file any response. The
trial court granted the motion, ruling that Plowden could not establish the essential
elements of her fraud and breach of contract causes of action or her punitive damages
claim. It further ruled that Plowden’s causes of action and punitive damages claim were
barred by the litigation privilege in Civil Code section 47, subdivision (b) and by
collateral estoppel, and that her present action was an impermissible challenge to a prior
unlawful detainer judgment against her and thus was barred by Code of Civil Procedure
section 1908.


                                      DISCUSSION
I.     Standard of Review
       “We review the grant of summary judgment de novo. (Szadolci v. Hollywood
Park Operating Co. (1993) 14 Cal.App.4th 16, 19 [17 Cal.Rptr.2d 356].) We make ‘an
independent assessment of the correctness of the trial court’s ruling, applying the same
legal standard as the trial court in determining whether there are any genuine issues of

                                             5
material fact or whether the moving party is entitled to judgment as a matter of law.’
(Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222 [38 Cal.Rptr.2d
35].) A defendant moving for summary judgment meets its burden of showing that there
is no merit to a cause of action by showing that one or more elements of the cause of
action cannot be established or that there is a complete defense to that cause of action.
(Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has made such a showing,
the burden shifts back to the plaintiff to show that a triable issue of one or more material
facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853 [107 Cal.Rptr.2d 841, 24 P.3d
493].)” (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1216-1217.) We must consider
all of the evidence and all of the inferences reasonably drawn therefrom, and must view
such evidence and such inferences in the light most favorable to the party opposing
summary judgment. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.)


II.    Application of Relevant Principles
       Plowden contends that the trial court erred in granting Swami’s summary
judgment motion as to her fraud and breach of contract causes of action and her claim for
punitive damages. The trial court did not err.1


       A.     Plowden’s Fraud Cause of Action
       “The elements of fraud are (a) a misrepresentation (false representation,
concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to

1       Because we hold that Swami demonstrated that Plowden cannot establish one or
more elements of her fraud and breach of contract causes of action, we need not reach
Swami’s alternative arguments that Plowden’s causes of action were barred by the
litigation privilege in Civil Code section 47, subdivision (b) and collateral estoppel, that
Code of Civil Procedure section 1908 barred her present action because it was an
impermissible challenge to a prior unlawful detainer judgment against her, or that the
summary judgment should be affirmed because Plowden did not file an opposition to the
summary judgment motion. Because Swami prevails as to Plowden’s fraud cause of
action, we also do not need to reach Plowden’s punitive damages claim.

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induce reliance; (d) justifiable reliance; and (e) resulting damage. [Citations.]” (Hinesley
v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) Swami’s summary
judgment motion demonstrated that Plowden could not establish one or more elements of
her fraud cause of action. In the excerpts from Plowden’s deposition transcript that were
submitted with Swami’s summary judgment motion and are in the record on appeal,
Plowden did not identify any fraud by Swami.
       Plowden alleged in support of her misrepresentation theory of fraud that Swami
made the following false representations of material fact in the leases: “Defendant
represented in written contracts through and/or by employees Pat Mitchell, signer, and
Ram Mittal (signer), written on April 1, 2007 and reinforced and amend in [_____], 2009,
‘Lessee shal [sic] be responsible for all repairs required, excepting the roof, exterior
walls, structural foundations. Defendant Lessor also represented that the premises in
question located at 13392 [sic] and 13994 Crenshaw Blvd., Gardena, CA 90249 were in
‘good order and repair, unless otherwise indicated herein.’ See contract item No. 3[.]”
       The first representation concerned which party to the leases would be responsible
for making certain repairs to the premises. Under that representation, the only repair at
issue for which Swami was responsible was the leaking roof. Plowden testified that
Swami repaired the leaking roof before she signed the lease for, and before she moved
into, 13992 Crenshaw Boulevard. Because Plowden’s testimony demonstrated both that
Swami took responsibility for repairing the leaking roof as required by the 13992
Commercial Lease and that Swami repaired the leak before Plowden signed the 13992
Commercial Lease or moved into the property, Plowden could not demonstrate either that
the representation that Swami was responsible for repairs to the roof was false or that she
relied on any false representation to enter the lease.
       Swami’s alleged second representation—“that the premises are in good order and
repair, unless otherwise indicated herein”—was taken from a part of the “Care and
Maintenance of Premises” clause in the 13992 and 13994 Commercial Leases. The
complete referenced sentence stated, “Lessee acknowledges that the premises are in good
order and repair, unless otherwise indicated herein.” Under the leases, Plowden was the

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lessee. Because Plowden acknowledged, and Swami did not represent, that the premises
were in good order and repair, Plowden failed to allege a misrepresentation by Swami.
Thus, Swami’s summary judgment motion demonstrated that Plowden could not prevail
on her misrepresentation theory of fraud.
       Plowden alleged in support of her concealment theory of fraud that Swami
concealed the fact that the electrical wiring and apparatuses, the roof, and the heating and
air conditioning units were not in good repair. As stated above, however, Plowden
expressly acknowledged when she signed the leases that “the premises are in good order
and repair” and she did not present any evidence in opposition to Swami’s summary
judgment motion that showed that Swami concealed any information about the claimed
deficiencies in the condition of the premises. Therefore, Swami’s summary judgment
motion demonstrated that Plowden could not prevail on her concealment theory of fraud.
       Plowden alleged in support of her making a promise without the intent to perform
theory of fraud that Swami, through its employees, stated that it would repair the leaking
roof and the electrical wiring and control panels, but only made feeble attempts to do so.
Under the “Care and Maintenance of Premises” clause in the leases, Swami was
responsible for repairs to the roof, exterior walls, and structural foundations, and Plowden
was responsible for maintaining in “good and safe condition” the “electrical wiring” and
“any other system or equipment upon the premises.” Each lease contained an integration
clause that provided the lease was the entire agreement between Plowden and Swami and
could not be modified except by a writing signed by both parties. It is true that the parol
evidence rule does not preclude evidence of fraud that is inconsistent with the terms of
the agreement. (Riverisland Cold Storage, Inc. v. Fresno–Madera Production Credit
Assn. (2013) 55 Cal.4th 1169.) But that does not mean that contractual terms do not
preclude a claim of fraud absent evidence of the fraud. (Cf. Series AGI West Linn of
Appian Group Investors DE, LLC v. Eves (2013) 217 Cal.App.4th 156, 162, fn. 6.)
Plowden did not present any evidence in opposition to Swami’s summary judgment
motion that showed that any Swami employee made a promise, false or otherwise,
concerning the repairs at issue. (See Tarmann v. State Farm Mut. Auto. Inc. Co. (1991) 2

                                             8
Cal.App.4th 153, 157-158 [in a fraud cause of action against a corporation, the plaintiff
must “allege the names of the persons who made the allegedly fraudulent representations,
their authority to speak, to whom they spoke, what they said or wrote, and when it was
said or written. [Citations.]”].) Swami’s prima facie defense that the contractual terms
governed is unrebutted. Accordingly, Swami’s summary judgment motion demonstrated
that Plowden did not have any evidence countering Swami’s showing she could not
prevail on her making a promise without the intent to perform theory of fraud.


        B.     Plowden’s Breach of Contract Cause of Action
        “A cause of action for damages for breach of contract is comprised of the
following elements: (1) the contract, (2) plaintiff’s performance or excuse for
nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.
(Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830 [69 Cal.Rptr. 321, 442 P.2d
377].)” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d
1371, 1388.) Swami’s summary judgment motion demonstrated that Plowden could not
establish that there was a contractual relationship between herself and Swami at the time
of the alleged breach or that Swami breached the 13992 and 13994 Commercial Leases.
        Plowden alleged in her breach of contract cause of action that on or about
December 31, 2009, Swami breached the leases “[b]y intentionally and fraudulently
concealing repairs that were needed to roofs, heating and air conditioning ujits [sic], as
well as electrical wiring and apparatuses that it never fixed over a five year period, or in
the case of the heating and air conditioning units, only when it was too late for it to do
[Plowden] any good for the purposes of conducting [a] ‘Production and music industry’
business, resulting in a loss of business and clients because of the poorly maintained
facilities.”
        The lease term for 13992 Crenshaw Boulevard terminated on September 30, 2007.
Plowden did not exercise the option to renew the 13992 Commercial Lease. The lease
term for 13994 Crenshaw Boulevard terminated on March 31, 2008. Plowden likewise
did not exercise the option to renew the 13994 Commercial Lease. Plowden testified at

                                              9
her deposition that she did not pay rent for 13994 Crenshaw Boulevard in 2009, and that
she was a combined four or five months behind in rent for 13992 and 13994 Crenshaw
Boulevard. Swami filed an unlawful detainer action in January or February 2009 with
respect to 13994 Crenshaw Boulevard. By that time, Plowden had moved out of 13992
Crenshaw Boulevard. Plowden alleged that Swami breached the leases on or about
December 31, 2009. Plowden was not in possession of 13992 Crenshaw Boulevard in
December 2009, so there was no existing contract that Swami could have breached.
Because Plowden possessed 13994 Crenshaw Boulevard in 2009 as a holdover tenant,
she did not have a contractual relationship with Swami in December 2009 with respect to
that property that Swami could have breached. (Peter Kiewit Sons’ Co. v. Richmond
Redevelopment Agency (1986) 178 Cal.App.3d 435, 445 [“When the term of a lease
expires but the lessee holds over without the owner’s consent, he becomes a tenant at
sufferance. [Citation.]”]; Aviel v. Ng (2008) 161 Cal.App.4th 809, 820 [“There is no
contractual relationship between a holdover tenant and the landlord; the tenant has but
‘“naked possession.”’ [Citations.]”.) Accordingly, Swami’s summary judgment motion
demonstrated that there was no contractual relationship between Swami and Plowden at
the time of the alleged breach.
       Swami was responsible for repairs to the roofs, exterior walls, and structural
foundations under the “Care and Maintenance of Premises” clause in the leases. Plowden
was responsible for maintaining in “good and safe condition” the “electrical wiring” and
“any other system or equipment upon the premises” under the “Care and Maintenance of
Premises” clause in the leases. Each lease contained an integration clause which
provided that the lease was the entire agreement between Plowden and Swami and could
not be modified except by a writing signed by both parties. Plowden testified at her
deposition that Swami repaired the leaking roof before she moved into 13992 Crenshaw
Boulevard. Under the leases, Plowden, and not Swami, was responsible for maintaining
in good and safe condition the heating and air conditioning units and the electrical wiring




                                            10
and apparatuses. Plowden did not present any evidence in opposition to Swami’s
summary judgment motion that showed that Swami “intentionally and fraudulently”
concealed repairs that were needed for the roofs and heating and air conditioning units or
that it failed to repair electrical wiring and apparatuses or to timely repair heating and air
conditioning units. Therefore, Swami’s summary judgment motion demonstrated that
Swami did not breach the 13992 Commercial Lease or the 13994 Commercial Lease.


                                      DISPOSITION
       The judgment is affirmed. Swami is awarded its costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                   MOSK, J.


We concur:



              TURNER, P. J.



              GOODMAN, J.




       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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