"Everyone is Entitled to Our Opinion"

-- Parker, Milliken, Clark, O'Hara & Samuelian

Parker, Milliken, Clark, O'Hara & Samuelian strikes (out) again.  Having learned nothing from his prior $2,000 hissy-fit, the same attorney at that firm decided to bring a motion for summary judgment because, in his opinion, the facts were so clearly in the favor of his clients that the matter did not even require a trial.

A motion for summary judgment is a procedure that allows a party to "test the pleadings" prior to trial. If there is no "triable issue of material fact" on an issue, that issue can be decided as a matter of law without the need for a trial. For example, we recently handled a matter where a plaintiff was suing a corporation and its officers. We brought a motion for summary judgment on the basis that there was no legal basis to hold the officers liable for the alleged wrongdoing by the corporation. We won the motion because the plaintiff could not offer any evidence (or legal basis) to establish personal liability of the officers. The crucial point to remember is that in a motion for summary judgment, the court cannot weigh the evidence. If there is any evidence to the contrary of what the moving party is claiming, there is by definition a triable issue of fact and the motion must be denied.

In the case at hand, we represented a company seeking to enforce a commercial lease. The company had timely exercised a five year extension, but the lessor had claimed that it was not entitled to the extension because our client was purportedly in breach of the lease. The real story was that the lessor had made improvements to the property, and was seeking higher rent payments and did not want our client to be able to renew the lease for the same rent.

To claim that our client was in breach of the lease, the opposition came up with a comical laundry list of alleged violations. One was a claim that our client did not keep the area around the property clean enough. They actually brought the motion for summary judgment claiming that the issue of whether the property was "clean enough" could be decided as a matter of law. Consider that for a moment. Whether something is "clean enough" is by any measure simply an opinion. No matter how many declarations opposing counsel provided attesting to the fact that the property was not clean enough, the statements would remain opinions. As such, they would not even need to be refuted, but in any event could be refuted by a single declaration from our client stating that the property was properly maintained.

Opposing counsel for defendants had another problem. Even if the way the property was maintained could be construed as a breach of the lease, the lease specifically provided that before the lessor could claim that there was a breach of the lease, it had to notify our client in writing of the alleged breach. That had never been done.

Opposing counsel was undeterred. They prepared and filed a massive motion for summary judgment/summary adjudication that probably took some 40 hours to prepare. We prepared and filed an opposition and the motion was denied out of hand. In its order denying the motion, the court ruled that the defendants had failed to establish a single issue.

This is another example of a large firm failing to see the big picture. It should have been obvious that the court could not decide the case by way of summary judgment based only on the opinions of defendants' witnesses. But even assuming for sake of argument that the issue of whether the property was "clean enough" could be determined as a matter of law, and that counsel could have found a way to overcome the fatal problem that our client had never been given notification of the alleged breach, it should also have been obvious that no reasonable judge would participate in the lessor's transparent attempt to refuse to extend the lease in order to charge a new tenant a higher rent.

To learn the great result we got for our client in this case, go to "Parker, Milliken, Clark, O'Hara & Samuelian Rethinks its Position".

If you find yourself involved in an action with P
arker, Milliken, Clark, O'Hara & Samuelian, contact Morris & Stone at (714) 954-0700.


Aaron P. Morris is a Partner with the law firm of Morris & Stone, LLP, located in Santa Ana, California. He can be reached at (714) 954-0700, or amorris@toplawfirm.com.  The practice areas of Morris & Stone include employment law (wrongful termination, sexual harassment, wage/overtime claims), business litigation (breach of contract, trade secret, partnership dissolution, unfair business practices, etc.), real estate and construction disputes, first amendment law, Internet law, discrimination claims, defamation suits, and legal malpractice.


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