Filed 9/30/26 Wilshire West Medical Tower v. Karimi CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
WILSHIRE WEST MEDICAL B347841
TOWER, LLC,
(Los Angeles County
Plaintiff, Cross-defendant Super. Ct. No. 22STCV09549)
and Appellant,
v.
KIAN KARIMI MD, INC., et al.,
Defendants, Cross-complainants
and Respondents.
WILSHIRE WEST MEDICAL B350305
TOWER, LLC, et al.,
(Los Angeles County
Plaintiffs, Cross-defendants Super. Ct. No. 22STCV09549)
and Appellants,
v.
KIAN KARIMI MD, INC., et al.,
Defendants, Cross-complainants,
and Respondents.
APPEALS from a judgment of the Superior Court of
Los Angeles County, Joseph M. Lipner, Judge. Affirmed in part
and reversed in part with directions.
Nussbaum and Lane M. Nussbaum for Plaintiffs, Cross-
defendants and Appellants Wilshire West Medical Tower, LLC,
and Boulevard Investment Group, Inc.
Call & Jensen, Mark L. Eisenhut, Chris C. Scheithauer,
Melinda Evans; Solve & Win and Suzanne Raina Natbony for
Defendants, Cross-complainants and Respondents Kian Karimi
MD, Inc., and Kian Karimi.
________________________________
Plaintiff Wilshire Medical Tower, LLC (Wilshire) entered
into a commercial lease agreement with defendant Karimi MD, Inc.
(Karimi MD) that was guaranteed by defendant Dr. Kian Karimi.
(Karimi MD and Dr. Kian Karimi are collectively the Karimi
parties). Wilshire’s property manager was Boulevard Investment
Group, Inc. (Boulevard). Wilshire agreed to lease premises to
Karimi MD for use as a medical facility.
Wilshire filed a complaint for breach of contract against
the Karimi parties, alleging Karimi MD breached the lease by
abandoning the premises and Karimi breached the guaranty
agreement. The Karimi parties moved for summary judgment,
contending the lease was terminated and no breach occurred. The
trial court granted summary judgment, finding no triable issue
of fact supported Wilshire’s claims. We agree with the trial court:
The record presents no triable issue of fact supporting that Karimi
MD breached the lease.
The Karimi parties filed a cross-complaint against Wilshire
and Boulevard, alleging breach of contract and several torts and
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seeking a declaration of their rights under the lease and guaranty
agreement. More than a year after the court granted summary
judgment on Wilshire’s complaint, it granted the Karimi parties’
motion for judgment on the pleadings on their cross-complaint’s
declaratory relief claim against Wilshire. We reverse this ruling
because after the court granted summary judgment on Wilshire’s
complaint, no present controversy existed between Wilshire and
Karimi.
In postjudgment proceedings, the court awarded attorney
fees to the Karimi parties and denied Wilshire and Boulevard’s
motions for attorney fees. Wilshire and Boulevard appeal this
ruling separately. We hold that the court correctly found Boulevard
was not entitled to fees, but given our reversal of the order granting
judgment on the pleadings, the trial court must reconsider its
attorney fees award relating to Wilshire. We therefore affirm the
judgment in part and reverse in part with instructions.
BACKGROUND
On appeal from an order granting summary judgment, we
take the facts from the record that were before the trial court when
it made the order. (Bailey v. San Francisco Dist. Attorney’s Office
(2024) 16 Cal.5th 611, 620 (Bailey).) A trial court properly grants
summary judgment if no triable issue exists as to any material
fact and the defendant is entitled to judgment as a matter of law.
(Code Civ. Proc., § 437c, subd. (c).) “ ‘The moving party bears the
burden of showing the court that the plaintiff “has not established,
and cannot reasonably expect to establish, a prima facie case.” ’ ”
(Bailey, supra, at p. 620, citing Miller v. Department of Corrections
(2005) 36 Cal.4th 446, 460 (Miller).) We examine the record
de novo, viewing the evidence in the light most favorable to the
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plaintiff as the losing party and resolving any evidentiary doubts
or ambiguities in plaintiff ’s favor. (Bailey, supra, at p. 620.)
A. The Lease
On May 1, 2021, Wilshire entered a lease agreement with
Karimi MD for premises located at 11645 Wilshire Blvd, Suite 1100,
Los Angeles, CA 90025 (the premises or property). Dr. Kian Karimi
guaranteed the obligations of the lessee.
Karimi MD intended to operate an ambulatory surgery center
at the property. Substantial construction work was necessary to
attain this function.
The lease included a work agreement under which Wilshire
was obligated to construct improvements to the property at a cost
of up to $299,355.00 (the tenant improvement allowance).
The work agreement provided that Wilshire’s architect
would submit a preliminary space plan (sometimes “the plan”) that
would itemize the work to be done by each party and estimate the
cost of work that Wilshire would conduct in excess of the tenant
improvement allowance.
The lease provided that “within ten (10) business days
following receipt” of the preliminary space plan, Karimi MD had
the right to “reject the preliminary space plan either partially or
totally,” and if the plan could not “in good faith be modified within
ten (10) business days after such rejection to be acceptable to
landlord and tenant, the lease shall terminate and neither party
shall thereafter be obligated to the other party for any reason
whatsoever having to do with this lease.” (Capitalization &
underscoring omitted.)
The lease provided that it contained the entire agreement
of the parties, superseded any previous negotiations, and could be
modified only in a writing signed by the parties.
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The lease provided for attorney fees incurred in any action
arising out of the lease “between any of the parties” to it.
B. Contractor Bid and Construction Contract
Construction was planned to be carried out in two phases,
phase 1 and phase 2. Karimi requested in an email that the scope
of the preliminary space plan be limited to only phase 1 so that
Karimi MD could occupy the property more quickly and begin
treating patients sooner.
On December 8, 2021, Wilshire provided drawings, a
construction contract and a contractor bid in which the price of
construction was estimated to be $585,207.05 (the December 8
documents). The bid stated that the construction contract was
“cancelable for 72 hours following [the] date of acceptance by” the
buyer. (Capitalization omitted.)
On December 8, 2021, Karimi accepted the contractor bid.
C. Cancellation
Two days later, on December 10, 2021, Karimi sent an email
to Edward Hudson and Cody Powers, individuals associated with
Wilshire, stating that due to the unexpectedly high cost, he “decided
not to approve the bids for the buildout of [the property]” and
stating that “the bids and the plans are not approved.”
On December 11, 2021, Karimi sent an email to Martha
Garcia, Wilshire’s manager of the property, with copies to Powers
and Borsuk, stating his intent “to PAUSE everything for now” and
asking Garcia to “please disregard the signed bids and plans . . .
Karimi sent.”
On February 1, 2022, the Karimi parties sent Wilshire a
formal “rejection, cancellation and notice of termination,” stating
that the lease had been terminated. (Capitalization omitted.)
Karimi MD never moved into the premises or paid rent.
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D. Complaint
Wilshire filed a complaint against the Karimi parties
on March 18, 2022, stating claims for (1) breach of contract;
(2) abandonment of the premises; and (3) breach of guaranty
agreement. Wilshire demanded that Karimi prospectively “rescind
the attempted termination” and “proceed with the obligations under
the lease.”
E. Cross-Complaint
On November 7, 2023, the Karimi parties cross-complained
against Wilshire and Boulevard, alleging breach of contract and
several torts and seeking declaratory relief as to the Karimi parties’
obligations under the lease and guaranty agreement.
The Karimi parties alleged Boulevard, a nonsignatory to
the lease, owed them fiduciary duties and misrepresented the cost
and feasibility of developing the premises and the suitability of the
premises for the contemplated surgical center. All causes of action
against Boulevard were ultimately dismissed.
F. Summary Judgment
The Karimi parties moved for summary judgment, contending
Wilshire never provided a complete preliminary space plan, as the
December 8 documents concerned only phase 1 of the proposed
construction, and in any event Karimi MD timely rejected the
December 8 documents, which led to termination of the lease.
Wilshire opposed the motion, arguing that the December 8
documents constituted a complete preliminary space plan under the
lease, and that after accepting the plan, Karimi MD had no right to
reject it.
On December 28, 2023, the court found no triable
issue supported that the December 8 documents constituted a
preliminary space plan because they concerned only phase 1 of
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the construction. The court also found no triable issue supported
Wilshire’s claim that even if the December 8 documents constituted
a preliminary space plan, Karimi MD failed to reject the plan.
Therefore, the court concluded, no triable issue supported that
Karimi MD breached the lease by failing to take possession of the
property and pay rent. As a consequence, the court found no triable
issue supported Wilshire’s cause of action for abandonment of the
property or its claim that Karimi breached the guaranty agreement.
The court granted summary judgment against Wilshire,
leaving only the Karimi parties’ cross-complaint at issue.
G. Judgment on the Pleadings
More than a year later, on January 7, 2025, the Karimi
parties moved for judgment on the pleadings on their declaratory
relief claim against Wilshire.1 Wilshire opposed the motion on the
ground that after the court granted the Karimi parties’ motion for
summary judgment on Wilshire’s complaint, no present controversy
existed between the parties regarding Wilshire’s contractual claims.
On February 26, 2025, the court found that “[n]o party
contends that the lease is still in force.” (Capitalization omitted.)
The court nevertheless found that it made “practical and legal
sense to resolve the [declaratory relief] matter” by judgment on
the pleadings. The court therefore “reissued” its order granting
summary judgment as an order granting judgment on the pleadings
and declared that undisputed facts showed that the December 8
documents did not constitute a preliminary space plan as required
1 The Karimi parties’ cross-complaint asserted five causes of
action. Two were removed by the court before the Karimi parties
moved for judgment on the pleadings and two were dismissed
afterward. Only the declaratory relief claim is at issue in this
appeal.
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by the work agreement; and even if they did, the Karimi parties
properly rejected them, thus terminating the lease.
The court entered judgment accordingly.
Wilshire appealed.
H. Attorney Fees
In later proceedings, the court awarded the Karimi parties
attorney fees against Wilshire that were incurred up to the
December 28, 2023 order granting summary judgment. The court
denied fees incurred thereafter on the ground that summary
judgment mooted the Karimi parties’ claim for declaratory relief.
By continuing to pursue the claim, the court found, the Karimi
parties “wasted the court’s time and resources, as well as the time
and resources of the parties.” (Capitalization omitted.) The court
denied Boulevard fees against the Karimi parties on the ground
that their dismissed tort claims against Boulevard did not arise
out of the lease.
The court amended the judgment to add the fees award.
Wilshire and Boulevard separately appealed from the
amended judgment.
We consolidated the two appeals.
DISCUSSION
A. Summary Judgment
To state a cause of action for breach of contract, a plaintiff
must establish “(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.)
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The work agreement provided that Karimi MD had 10 days
to reject the preliminary space plan. If it did so, the parties would
have 10 days to modify the plan or the lease would terminate.
Wilshire provided the preliminary space plan to Karimi
MD on December 8, 2021, in the form of a contractor bid and
construction contract. The bid stated that once accepted, the
construction contract could be canceled within 72 hours.
The undisputed facts show that although Karimi MD
accepted the contractor bid on December 8, 2021, it canceled
the construction contract on December 10 and 11, 2021. Both
cancellations were within the 72-hour window established by
the contractor bid and were also within the 10 days established
by the work agreement.
When the parties failed to modify the preliminary space plan
within 10 days after either of these rejections, the lease terminated,
after which Karimi MD had no obligation to occupy the premises
or pay rent and Karimi had no obligations as guarantor. The trial
court therefore properly granted summary judgment for the Karimi
parties.
Wilshire argues that because the lease and work agreement
contained no provision affirmatively authorizing Karimi MD to
reject the preliminary space plan after having first accepted it,
the rejections on December 10 and 11, 2021 were ineffective. We
disagree. The lease gave Karimi MD 10 days to reject the plan.
Nothing divested Karimi MD of this right even if it first accepted
the plan.
Even if Karimi MD was barred from rejecting the preliminary
space plan after first approving it, Karimi MD never approved
the plan. The plan relied on a contractor bid which provided
a three-day cooling off period. Because Karimi MD rejected the
construction contract within three days, it never went into effect.
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Without a construction contract, there was no preliminary space
plan. Summary judgment was therefore proper.
Given this result, we do not reach the parties’ dispute
about whether the December 8 documents constituted a complete
preliminary space plan as required by the work agreement.
B. Judgment on the Pleadings
Wilshire argues judgment on the pleadings in favor of the
Karimi parties was improper because by the time it was issued,
more than a year after the court granted Wilshire’s motion for
summary judgment, there was no present controversy between
the parties regarding Wilshire’s guaranty claim. We agree.
Declaratory relief is authorized by Code of Civil Procedure
section 1060, which provides: “Any person interested . . . under
a contract, . . . may, in cases of actual controversy relating to the
legal rights and duties of the respective parties, bring an original
action . . . in the superior court for a declaration of his or her
rights . . . [.] [T]he court may make a binding declaration of
these rights . . . [.] [T]he declaration shall have the force of a final
judgment.”2
“ ‘ “ ‘ “The fundamental basis of declaratory relief is
the existence of an actual, present controversy over a proper
subject.” ’ ” ’ ” (Artus v. Gramercy Towers Condominium
Assn. (2018) 19 Cal.App.5th 923, 934.) Declaratory relief is not
appropriate where a controversy is “conjectural, anticipated to occur
in the future, or an attempt to obtain an advisory opinion from the
court.” (Brownfield v. Daniel Freeman Marina Hospital (1989) 208
Cal.App.3d 405, 410.) Courts will decline to adjudicate a dispute
if the abstract posture of the proceeding results in a “contrived
2Undesignated statutory references are to the Code of Civil
Procedure.
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inquiry” in which the court is asked to speculate on the validity of
a hypothetical act. (Pacific Legal Foundation v. California Coastal
Com. (1982) 33 Cal.3d 158, 172.)
We review an order granting judgment on the pleadings de
novo. (Center for Environmental Health v. Perrigo Co. (2023) 89
Cal.App.5th 1, 16.)
Here, Wilshire’s complaint alleged that the Karimi parties
breached the lease and guaranty agreement. After the court
granted summary judgment in 2023, no dispute on the lease
remained. Accordingly, the proper course was not to reissue the
order granting summary judgment as an order granting judgment
on the pleadings but to dismiss the declaratory relief claim for
lack of a present controversy. (See Travers v. Louden (1967) 254
Cal.App.2d 926, 932.) We will therefore reverse the order granting
judgment on the pleadings.
The Karimi parties argue there was a risk that Wilshire
could obtain reversal of summary judgment on appeal, then
dismiss the complaint without prejudice and wait years to refile it,
all while rent accrued under Wilshire’s theory of the lease. Under
that scenario, they argue, Karimi would be subjected to ongoing
uncertainty regarding potentially substantial liability, which would
impair his ability to make financial decisions and operate other
ventures. But mere conjecture that at some time in the future an
appellate court will reverse summary judgment, and thus give rise
to a controversy, is not sufficient for declaratory relief. (See City
of Carmel-by-the-Sea v. Young (1970) 2 Cal.3d 259, 276 [“mere
conjecture that at some time in the future a controversy might
arise is not sufficient”].)
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C. Attorney Fees
Wilshire and Boulevard appeal from the court’s post-
judgment fee determinations. Wilshire contends the court
erred in awarding attorney fees to the Karimi parties because no
party prevailed on the lease. This is so, Wilshire argues, because
although the Karimi parties prevailed on summary judgment,
Wilshire should have prevailed on the Karimi parties’ motion
for judgment on the pleadings.
Given our reversal of the grant of judgment on the pleadings,
we will remand the matter for a reconsideration of the attorney fee
award against Wilshire, a matter on which we express no opinion.
Boulevard, a nonsignatory, sought attorney fees under the
lease for successfully defending against the Karimi parties’ tort
claims in their cross-complaint.
Attorney fees can ordinarily be awarded only when the
lawsuit involves a claim covered by a contractual attorney fee
clause. (Meininger v. Larwin-Northern California, Inc. (1976)
63 Cal.App.3d 82, 84.) To be entitled to attorney fees, the party
seeking must be a party to that contract. (Canal-Randolph
Anaheim, Inc. v. Wilkoski (1978) 78 Cal.App.3d 477, 485,
superseded by statute on another ground, as stated in WDT-
Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526.)
Here, the lease provided for fees in an action “between any
of the parties” to the lease. Boulevard was not a party to the lease.
Therefore, it was not entitled to an award of attorney fees.
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DISPOSITION
The judgment is affirmed as to the court’s order granting
summary judgment and reversed as to the order granting judgment
on the pleadings. The matter is remanded for a reconsideration of
the attorney fees. All parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
M. KIM, J.
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