WINDSOR WEST VENTURES, LLC v. Nevada Urban Indians, Inc.

Filing 38

ORDER denying 17 , 23 , 36 Motion for Summary Judgment. Signed by Judge Howard D. McKibben on 2/4/16. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WINDSOR WEST VENTURES, LLC,

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Plaintiff,
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vs.
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NEVADA URBAN INDIANS, INC.,
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Defendant.
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_________________________________ )

3:14-cv-00539-HDM-VPC
ORDER

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Before the court is the plaintiff Windsor West Ventures, LLC’s
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(“plaintiff”) motion for summary judgment and two supplements
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thereto.

(#17, #23 & #36).

Defendant Nevada Urban Indians, Inc.

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(“defendant”) has opposed (#20), and plaintiff has replied (#22).
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On June 27, 2013, defendant as tenant and plaintiff as
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landlord entered into a commercial lease agreement.

The lease term

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was to commence September 1, 2013, or as soon as improvements
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requested by the defendant were completed, and run through August
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31, 2020.

Defendant began occupying the leased premises in January

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2014.

Shortly thereafter, plaintiff asserts, defendant began

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complaining about the condition of the property and expressed an
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intent to vacate.

In response, plaintiff filed this suit for

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anticipatory breach of contract and declaratory relief.

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answered and counterclaimed for breach of the lease.

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moves for entry of summary judgment on its claims, both on

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liability and damages, as well as defendant’s counterclaims.1

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Defendant

Plaintiff now

Summary judgment shall be granted “if the movant shows that

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there is no genuine issue as to any material fact and the movant is

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entitled to judgment as a matter of law.”

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The burden of demonstrating the absence of a genuine issue of

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material fact lies with the moving party, and for this purpose, the

Fed. R. Civ. P. 56(a).

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material lodged by the moving party must be viewed in the light

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most favorable to the nonmoving party.

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Co., 398 U.S. 144, 157 (1970); Martinez v. City of Los Angeles, 141

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F.3d 1373, 1378 (9th Cir. 1998).

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that affects the outcome of the litigation and requires a trial to

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resolve the differing versions of the truth.

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Workers Int’l Ass’n, 804 F.2d 1472, 1483 (9th Cir. 1986); S.E.C. v.

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Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982).

Adickes v. S.H. Kress &

A material issue of fact is one

Lynn v. Sheet Metal

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Once the moving party presents evidence that would call for

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judgment as a matter of law at trial if left uncontroverted, the

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respondent must show by specific facts the existence of a genuine

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issue for trial.

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250 (1986).

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sufficient evidence favoring the nonmoving party for a jury to

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return a verdict for that party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

“[T]here is no issue for trial unless there is

If the evidence is merely

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Subsequent to the plaintiff’s filing of its motion, defendant gave
notice that it intended to vacate by September 30, 2015. Plaintiff asserts
that the defendant stopped paying rent on September 30, 2015. At a hearing
on that date before this court, defendant represented that it had paid rent
through October. Plaintiff did not contest defendant’s representation.

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colorable, or is not significantly probative, summary judgment may

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be granted.”

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of evidence will not do, for a jury is permitted to draw only those

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inferences of which the evidence is reasonably susceptible; it may

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not resort to speculation.”

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F.2d 946, 952 (9th Cir. 1978).

Id. at 249-50 (citations omitted).

“A mere scintilla

British Airways Bd. v. Boeing Co., 585

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Plaintiff seeks judgment on its breach of contract claim.

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However, as defendant has vacated the property, Nevada Revised

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Statutes § 118.175 requires plaintiff to take reasonable steps to

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mitigate its damages.

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to satisfy this obligation is a question of fact that must be

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resolved at trial.

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Whether plaintiff has taken sufficient steps

Further, plaintiff seeks judgment on its claim for declaratory

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relief, which seeks a declaration that defendant has not been

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constructively evicted.

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defendant must prove that: (1) plaintiff either acted or failed to

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act; (2) plaintiff’s action or inaction rendered “the whole or a

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substantial part of the premises ... unfit for occupancy for the

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purpose for which it was leased”; (3) defendant vacated the

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premises within a reasonable time; and (4) defendant provided

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plaintiff notice of and a reasonable opportunity to cure the

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defect.

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335 P.3d 211, 214-15 (Nev. 2014).

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thin, there is evidence of circumstances that, taken together,

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could have rendered the premises unfit for the purpose for which it

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was leased, including but not limited to: failure to complete one

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of the exam rooms as agreed, multiple nonfunctioning electrical

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outlets, holes in the wall, damage to items in the office

To prove constructive eviction, the

Mason-McDuffie Real Estate, Inc. v. Villa Fiore Dev., LLC,
Although the evidence is quite

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overnight, as well as doors left unlocked after hours, and a public

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bathroom – which defendant’s clients used – kept in an unsanitary

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or unusable condition.

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28-30, 35, 40, 48-49, 52, 53-57 ,66 & 69)).

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vacated the premises in a reasonable period of time and gave

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plaintiff sufficient notice as required by the law are also

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questions of fact for the trier of fact.

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issues of material fact preclude summary judgment on the

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constructive eviction claim.

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(See Pl. Mot. Ex. 2 (Reeves Dep. at 22-23,
Whether defendant

Accordingly, genuine

For similar reasons, triable issues of fact exist as to the

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defendant’s counterclaim for breach of the lease agreement.

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particularly, the lease required plaintiff to “install sinks with

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lower cabinets in two (2) exam rooms. . . .”

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1)).

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completed and specifically did not contain a sink in accordance

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with the lease agreement.

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35 & 69)).

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the defendant’s counterclaim, as well.

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Most

(Mot. Summ. J. Ex.

Reeves testified that one of the exam rooms had not been

Id. Ex. 2 (Reeves Dep. at 22-23, 28-30,

There is therefore a genuine issue of material fact on

Because of the nature of the alleged breaches, the court is

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not persuaded by plaintiff’s argument that an expert witness is

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required to a prove that it breached its duties or the lease.

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Accordingly, the plaintiff’s motion for summary judgment (#17,

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#23, #36) is hereby DENIED.

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IT IS SO ORDERED.

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DATED: This 4th day of February, 2016.

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____________________________
UNITED STATES DISTRICT JUDGE

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