Filed 5/30/06  Savanna Jazz v. Fillmore Properties CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

            Plaintiff Savanna Jazz, L.L.C. (Savanna) appeals from an adverse summary judgment entered on its fraud claims arising out of failed negotiations to lease space in a commercial building owned and operated by defendant Fillmore Properties, L.L.C. and related entities[1] (Fillmore).  We conclude that defendants presented sufficient evidence in support of the motion to shift the burden to Savanna to demonstrate a triable issue of material fact, and that Savanna failed to adduce sufficient evidence to meet that burden. Hence, we shall affirm.

BACKGROUND

            Viewing all evidence and inferences in the light most favorable to Savanna as the party opposing summary judgment (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142), the undisputed facts are as follows.  In February 2002, Savanna contacted Fillmore to inquire about leasing space in the Fillmore Center in San Francisco for the purpose of operating a jazz club.  On May 3, 2002, Savanna's managing partner, Pascal Thiam, and the general manager of Fillmore Center, Steven Boyack, met for the first time to discuss the terms of a lease.  Extended negotiations between Thiam and various Fillmore representatives took place over the ensuing months, with both parties making numerous proposals and counter-proposals.  At no time did the parties agree on all terms or sign a written agreement.  During the course of negotiations, in July 2002, Fillmore's attorney Jim Reuben told Thiam that Fillmore would lease the space to Savanna.  Thereafter, Savanna hired architects and incurred other expenses to provide Fillmore with necessary drawings and financial information.  Savanna also applied for liquor and entertainment licenses for the premises, which Fillmore assisted in procuring.  Boyack told Thiam repeatedly that a lease was being prepared, though the parties had never agreed to all of its terms, and they continued to exchange counter-proposals through a final exchange on March 3 and 4, 2003.  Thiam's declaration states that he then advised Boyack that they were â€