Opinion
G052053 C/w G052740
11-27-2017
SURF CITY CORPORATION, Plaintiff and Appellant, v. MITSUBISHI MOTORS NORTH AMERICA, INC., Defendant and Respondent.
Law Office of David C. Codell and David C. Codell; Samini Scheinberg, Bobby Samini, John Whelan, Laura Booth, Matthew Hoesly and Tadeusz McMahon for Plaintiff and Appellant. Seyfarth Shaw, William N. Berkowitz, Dean A. Martoccia and Daniel P. Wierzba for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2013-00695323) OPINION Appeal from a judgment of the Superior Court of Orange County, Frederick Paul Horn, Judge. Affirmed. Request for judicial notice. Granted. Law Office of David C. Codell and David C. Codell; Samini Scheinberg, Bobby Samini, John Whelan, Laura Booth, Matthew Hoesly and Tadeusz McMahon for Plaintiff and Appellant. Seyfarth Shaw, William N. Berkowitz, Dean A. Martoccia and Daniel P. Wierzba for Defendant and Respondent.
* * *
INTRODUCTION
Plaintiff Surf City Corporation (Surf City) filed a complaint against defendant Mitsubishi Motors North America, Inc. (MMNA) containing multiple causes of action arising out of MMNA's sale of property, upon which Surf City had operated a Mitsubishi car dealership, to a third party. Surf City appealed from the judgment entered after the trial court granted MMNA's motion for summary judgment and denied Surf City's motion seeking leave to file an amended complaint. Surf City filed a second appeal in this matter after the trial court amended the judgment to award MMNA prevailing party attorney fees and costs. We consolidated Surf City's appeals.
Surf City argues on appeal that the trial court erred by granting summary judgment because triable issues of material fact exist as to its causes of action for breach of its dealership agreement with MMNA and for breach of the implied covenant of good faith and fair dealing. Surf City also argues the trial court erred by failing to grant it leave to file an amended complaint. Surf City's appellate briefs do not include any challenge to the court's award of attorney fees and costs in favor of MMNA.
We affirm. For the reasons we explain, Surf City has failed to show a triable issue of material fact exists as to either its cause of action for breach of contract or its cause of action for breach of the implied covenant of good faith and fair dealing. The trial court did not abuse its discretion by denying Surf City's motion for leave to amend the complaint as Surf City failed to explain its delay in making such a motion and further failed to show how its proposed amendments enable its breach of contract and breach of the implied covenant claims to survive summary judgment.
SUMMARY OF FACTS
Our summary of facts is limited to those facts relevant to Surf City's breach of contract and breach of the implied covenant of good faith and fair dealing claims, which are at issue in this appeal.
In December 2006, Gholam Abbas Baahmadi entered into an agreement to purchase the assets of "MMIP Dealer Corp. II d/b/a Huntington Beach Mitsubishi," an entity that was in the business of operating a Mitsubishi automobile dealership located on Beach Boulevard in Huntington Beach (the property), and had filed for bankruptcy. Baahmadi is a sophisticated businessperson with considerable experience in the motor vehicle industry since 1994. In January 2007, he assigned his rights under the asset purchase agreement to his newly formed corporation, Surf City.
Baahmadi has an estimated net worth of $15 million to $20 million. At the time the motion for summary judgment was filed, Baahmadi owned and operated four Mitsubishi dealerships, including the dealership at the property.
In March 2007, Surf City and MMNA entered into a Dealer Sales and Service Agreement (the 2007 Dealer Agreement) which gave Surf City the right to sell and service Mitsubishi motor vehicles and related parts for a period of three years, or until March 28, 2010, unless the agreement was terminated earlier by MMNA or Surf City. The 2007 Dealer Agreement did not contain terms precluding MMNA from selling the property and did not give Surf City the right or option to purchase the property. MMNA and Surf City also entered into a separate lease agreement for the property that became effective in April 2007.
Baahmadi signed a personal guarantee in connection with the parties' lease agreement that provided MMNA could sell the property at any time with or without notice to Surf City. The personal guarantee also stated MMNA was free to assign the lease agreement in connection with the sale of the property to a third party.
When the 2007 Dealer Agreement expired by its terms on March 28, 2010, MMNA and Surf City did not renew the agreement or immediately enter into a new agreement in its stead.
In February 2012, Surf City's chief operating officer informed MMNA that Surf City wanted to purchase the property. MMNA responded to the communication by informing Surf City it had no interest in selling the property. In July 2012, MMNA and Surf City entered into a new three-year Dealer Sales and Service Agreement (the 2012 Dealer Agreement). The 2012 Dealer Agreement expressly replaced the 2007 Dealer Agreement and otherwise terminated and superseded all prior written or oral agreements and understandings between MMNA and Surf City except with regard to (1) any agreements expressly referred to and incorporated into the 2012 Dealer Agreement, (2) any indebtedness which might be owing by either MMNA or Surf City to the other, and (3) any of Surf City's unfilled orders with MMNA pursuant to the provisions of any prior sales agreement terminated or superseded by the 2012 Dealer Agreement. It also stated that Surf City released MMNA from any claims arising out of any prior agreements, business transactions, course of dealing, or discussions or negotiations between the parties before the effective date of the 2012 Dealer Agreement. Like the 2007 Dealer Agreement, the 2012 Dealer Agreement did not contain any restriction on MMNA's ability to sell the property and did not provide Surf City with any right or option to purchase the property.
Both the 2007 Dealer Agreement and the 2012 Dealer Agreement provided that MMNA would only ship to Surf City vehicles that had been ordered by Surf City. Pursuant to MMNA's policies, dealers had complete discretion over the number of vehicles they ordered, subject only to the availability of various models at the time. Dealers, for example, could decide not to order any vehicles during a given month if they determined their existing inventory was sufficient to meet customer demand; there was no minimum order requirement. MMNA never shipped to Surf City any vehicles that Surf City did not order. There were times Surf City complained to MMNA about the timing or date of deliveries; there was, however, no written delivery schedule between Surf City and MMNA.
In March 2012, MMNA and Surf City agreed to an amended lease agreement which provided for the continuation of Surf City's base rent at the then existing amount of $27,500 per month, and provided for a final expiration date of the lease on December 21, 2015. The 2012 lease agreement did not preclude MMNA's sale of the property or provide Surf City with any right or option to purchase the property.
In February 2013, MMNA received an unsolicited letter of intent from a real estate developer to purchase the property for $7.33 million—an amount that was nearly double the most recently appraised value of the property. In subsequent discussions between MMNA and the developer, the developer increased the proposed purchase price to $8.6 million.
In April 2013, MMNA entered into an agreement for the sale of the property to the real estate developer, subject to Surf City's rights under the parties' lease agreement. In May 2013, MMNA representatives met with Baahmadi and another Surf City executive and advised them of MMNA's intent to sell the property. The sale of the property closed on October 8, 2013.
After MMNA sold the property, Surf City continued to operate as a Mitsubishi dealership on the property. During the nine-month period beginning on the date of the sale of the property, Surf City maintained an average monthly sales rate higher than it had during the nine months preceding the sale. Surf City's new vehicle department's gross profit was higher in 2014 than in any year since Surf City purchased the dealership in 2007.
BACKGROUND
I.
THE COMPLAINT
In December 2013, Surf City filed a complaint against MMNA containing claims for breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, negligent misrepresentation, unfair business practices, intentional interference with economic advantage, negligent interference with economic advantage, unjust enrichment, breach of fiduciary duty, breach of the covenant of quiet enjoyment, and constructive eviction.
In its general allegations section, the complaint alleged that shortly after Surf City and MMNA entered into the 2007 Dealer Agreement, "certain executives of MMNA required [Surf City] to carry excess inventory beyond [Surf City]'s sales capacity with knowledge that MMCA could and would thereby collect additional finance charges from [Surf City]. Such requirements by MMNA for the benefit of itself and MMCA continue to present day." The complaint further alleged that beginning in 2008, Surf City made requests to MMNA to purchase the property, but those requests were ignored or denied; Surf City suspected MMNA was not interested in selling the property to Surf City because MMNA believed Surf City "lacked the financial wherewithal" to purchase the property, but MMNA would entertain selling the property to a third party. The complaint also alleged that in May 2013, Surf City learned about the sale of the property to a real estate developer "which would effectively terminate the Dealer Agreement" and was thereafter informed by the purchaser that "there will be no extension of leasing beyond its current term."
MMCA refers to Mitsubishi Motors Credit of America, Inc., which agreed to provide a line of credit to Surf City for the purchase of new vehicles; it is not a party to this lawsuit. --------
In support of the first cause of action for breach of contract, in addition to incorporating by reference its general allegations, the complaint alleged: (1) Surf City "entered into the Dealer Agreement on or about 2007"; (2) "[p]ursuant to the Agreement, MMNA is obligated to allow [Surf City] to operate the Dealership"; (3) "MMNA breached the Dealer Agreement by constructively terminating the Dealer Agreement in contravention of the termination provision by selling the Property to a third party real estate developer"; (4) Surf City "performed all the conditions, obligations, and covenants to be performed by it under the Dealer Agreement"; and (5) Surf City was damaged as a result of MMNA's breach.
In support of the second cause of action (for breach of the implied covenant of good faith and fair dealing), the complaint incorporated by reference all preceding allegations, and added MMNA "willfully breached [its] implied covenant of good faith and fair dealing" with Surf City by: (1) "Constructively terminat[ing] the Dealer Agreement by agreeing to sell the property to a third party real estate developer;" (2) "Reap[ing] benefits and profits at the expense of the services actually performed by [Surf City];" and (3) "Requir[ing] [Surf City] to carry excess inventory beyond [Surf City]'s sales capacity with knowledge that MMCA could and would thereby collect additional finance charges from [Surf City]."
Surf City's complaint did not contain claims asserting Surf City breached the 2012 Dealer Agreement or the implied covenant of good faith and fair dealing as to that agreement.
II.
MMNA MOVES FOR SUMMARY JUDGMENT; SURF CITY MOVES FOR LEAVE TO FILE AN
AMENDED COMPLAINT AND FILES AN OPPOSITION TO THE MOTION FOR SUMMARY
JUDGMENT.
In January 2015, MMNA filed a motion for summary judgment, or, in the alternative, for summary adjudication. With regard to the first cause of action, MMNA argued: Surf City's "first cause of action for breach of contract fails as a matter of law because MMNA did not breach the 2007 Dealer Agreement or any other contractual obligation. The cause of action also fails because the 2007 Dealer Agreement was superseded by the 2012 Dealer Agreement in which [Surf City] released any and all claims under the 2007 Dealer Agreement. It further fails because the 2007 Dealer Agreement expired long before the sale of the subject property, which is the action that [Surf City] claims constitutes the breach. To the extent that [Surf City] now claims a breach of the 2012 Dealer Agreement, that claim fails as a matter of law because [Surf City]'s Complaint contains no such allegation. In any event, MMNA complied with its contractual obligations under that agreement."
MMNA argued the second cause of action for breach of the implied covenant of good faith and fair dealing "fails as a matter of law because the implied covenant is limited to assuring compliance with the express terms of a contract, and cannot be extended to create obligations not contemplated in the contract. Here, MMNA complied with its contractual obligations."
In March 2015, Surf City applied ex parte for an order shortening time on a hearing for a motion for leave to file a first amended complaint. The court granted the ex parte request to shorten time on the hearing for the motion.
Surf City also filed an opposition to MMNA's motion for summary judgment. Surf City filed objections to evidence submitted by MMNA in support of the motion for summary judgment.
III.
THE TRIAL COURT DENIES SURF CITY'S MOTION FOR LEAVE TO FILE AN AMENDED
COMPLAINT AND GRANTS MMNA'S MOTION FOR SUMMARY JUDGMENT; SURF CITY
APPEALS.
The trial court denied Surf City's motion for leave to file a first amended complaint because Surf City had unreasonably delayed in seeking relief. The trial court granted MMNA's motion for summary judgment on the ground that MMNA met its burden of showing that each cause of action lacked merit because Surf City could not show the required elements of each cause of action and failed to show that a triable issue of one or more material facts existed as to any cause of action. As to the two causes of action at issue in this appeal, the trial court's minute order explained the court's ruling as follows:
"First Cause of Action for Breach of Contract: This cause of action alleged that MMNA breached the 2007 Dealer Agreement by selling the real property to a third party real estate developer. The 2007 Dealer Agreement expired within three years. It was superseded by the 2012 Dealer Agreement.
"The First Cause of Action did not allege excess finance charges or timing problems with deliveries. Plaintiff [Surf City] failed to show any unauthorized deliveries of vehicles. There was no breach of an existing agreement.
"Second Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealing: [Surf City] alleged that MMNA constructively terminated the agreement by selling the real property, reaped benefits and profits at the expense of service performed by [Surf City] and required [Surf City] to carry excess inventory. 'If there exists a contractual relationship between the parties, as was the case here, the implied covenant is limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated in the contract.' [Citation.] [Surf City]'s allegation[s] are beyond the scope of the written agreements." The trial court also overruled all of Surf City's evidentiary objections.
Judgment was entered in favor of MMNA. Surf City appealed.
IV.
POSTJUDGMENT PROCEDURE.
MMNA filed a motion for prevailing party attorney fees and costs. The trial court granted MMNA's motion for attorney fees and awarded it attorney fees in the amount of $50,000. It also awarded MMNA costs in the amount of $22,280.57. The judgment was amended to include the attorney fees and costs awards. Surf City filed a notice of appeal from the amended judgment. We consolidated Surf City's two appeals for purposes of briefing, oral argument, and decision on appeal.
REQUEST FOR JUDICIAL NOTICE
MMNA filed a request for judicial notice in this court under California Rules of Court, rule 8.252(a) and Evidence Code sections 452, subdivisions (c) and (d), 453, and 459. MMNA requests that this court take judicial notice of pleadings filed by entities owned by Baahmadi against MMNA in other proceedings in the Superior Courts of Los Angeles County, Orange County, and San Bernardino County. Surf City did not file an opposition to the request. We grant MMNA's request for judicial notice under Evidence Code section 452, subdivision (d) (judicial notice may be taken of records of any court of this state).
DISCUSSION
I.
THE TRIAL COURT DID NOT ERR BY GRANTING MMNA'S SUMMARY JUDGMENT MOTION
BECAUSE NO TRIABLE ISSUE OF MATERIAL FACT EXISTS AS TO SURF CITY'S CAUSES OF
ACTION FOR BREACH OF CONTRACT AND BREACH OF THE IMPLIED COVENANT OF GOOD
FAITH AND FAIR DEALING.
A.
Standard of Review and Burdens of Proof
"We review orders granting summary judgment or summary adjudication de novo. [Citations.] A motion for summary judgment or summary adjudication is properly granted if the moving papers establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. [Citations.]" (Mooney v. County of Orange (2013) 212 Cal.App.4th 865, 872.) "'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 . . . ." [Citation.]' [Citation.] '[O]nce a moving defendant has "shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established," the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff "may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . ." [Citations.]' [Citation.]" (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274.) We "'"liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party."'" (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.)
Although summary judgment was granted on the entire complaint, Surf City's appeal challenges the summary judgment with regard to only two of its causes of action, namely, for breach of contract and breach of the implied covenant of good faith and fair dealing.
B.
No Triable Issue of Material Facts Exists as to the Breach of Contract Claim.
The complaint alleges Surf City breached the 2007 Dealer Agreement by selling the property to a real estate developer. The undisputed facts show the 2007 Dealer Agreement expired in March 2010—over three years before the property was sold in October 2013. Furthermore, nothing in the 2007 Dealer Agreement restricted MMNA's ability to sell the property to a third party. Therefore, Surf City's claim for breach of the 2007 Dealer Agreement fails as a matter of law.
Surf City argues that a fair reading of the complaint reflects Surf City's intent that its breach of contract claim be based on a breach of the 2012 Dealer Agreement, which superseded the 2007 Dealer Agreement. Even if the complaint might be properly read to allege a breach of the 2012 Dealer Agreement, nothing in that agreement precludes MMNA from selling the property to a third party, either. No evidence shows that Surf City was unable to continue to operate the dealership at the property until the natural expiration of the three-year term of the 2012 Dealer Agreement. The trial court thus properly concluded there was no breach of an "existing agreement."
Surf City also argues the trial court erroneously held that the complaint did not allege finance charges or timing problems with deliveries in support of its breach of contract claim and that Surf City demonstrated the existence of triable issues of material fact with regard to those issues. As to Surf City's argument there were "timing problems with deliveries," the complaint does not contain any such allegation. (See Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 176 [a plaintiff may not defeat a motion for summary judgment by "present[ing] a 'moving target' unbounded by the pleadings"].) In any event, Surf City acknowledges in its opening brief, "[n]o agreements between Surf City and MMNA included any schedule of delivery, nor was any schedule regularly followed in actuality because of unpredictable production and shipment delays." Consequently, Surf City has failed to show how alleged problems with regard to the delivery of vehicles would constitute a breach of contract with MMNA.
In its general allegations section, which was incorporated into the first cause of action, the complaint alleged "certain executives of MMNA required [Surf City] to carry excess inventory beyond [Surf City]'s sales capacity with knowledge that MMCA could and would thereby collect additional finance charges from [Surf City]. Such requirements by MMNA for the benefit of itself and MMCA continue to present day." The complaint did not allege that any such requirement constituted a breach of the 2007 Dealer Agreement, or the 2012 Dealer Agreement for that matter.
"Under settled summary judgment standards, we are limited to assessing those theories alleged in the [complaint]. [Citations.] '"The burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint. A 'moving party need not ". . . refute liability on some theoretical possibility not included in the pleadings." [Citation.]' . . . '"[A] motion for summary judgment must be directed to the issues raised by the pleadings. The [papers] filed in response to a defendant's motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings."'"'" (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1275.)
Even if the complaint were construed to base the breach of contract action on MMNA's alleged requirement that Surf City carry excess inventory beyond its capacity, as noted by the trial court, the undisputed evidence shows MMNA never delivered a single vehicle that Surf City had not itself ordered. Therefore, it is undisputed that MMNA did not require Surf City to carry excess inventory, and thus did not cause it to incur finance charges. The trial court was correct to grant summary judgment on the breach of contract claim.
C.
No Triable Issue of Material Fact Exists as to the Breach of the Implied Covenant of
Good Faith and Fair Dealing Claim.
"The implied covenant of good faith and fair dealing is a contractual relationship and does not give rise to an independent duty of care. Rather, '"[t]he implied covenant of good faith and fair dealing is limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated by the contract."'" (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 206.)
Surf City's claim for breach of the implied covenant of good faith and fair dealing was based on allegations MMNA constructively terminated "the Dealer Agreement" by agreeing to sell the property to a third party, "[r]eaped benefits and profits at the expense of the services actually performed by [Surf City]," and required Surf City to carry excess inventory beyond its sales capacity with knowledge that Surf City would incur finance charges.
The trial court granted summary judgment as to the breach of the implied covenant claim on the ground that Surf City's allegations "are beyond the scope of the written agreements." The trial court properly granted summary judgment as to this claim. As discussed ante, neither the 2007 Dealer Agreement nor the 2012 Dealer Agreement precluded MMNA's sale of the property to a third party.
It is unclear what Surf City meant in alleging MMNA "[r]eaped benefits and profits at the expense of the services actually performed by [Surf City]" in support of its claim for breach of the implied covenant. That MMNA financially benefited from its contractual relationship with Surf City does not constitute a breach of the implied covenant. Surf City did not allege MMNA retained profits or otherwise gained financially in breach of a provision of the parties' agreement. Finally, as discussed ante, the undisputed facts show Surf City was never required to carry excess inventory as it had sole discretion regarding when and how many vehicles it wished to order, with no minimum requirement. Summary judgment was therefore properly granted as to this claim as well.
II.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING SURF CITY'S REQUEST
FOR LEAVE TO AMEND THE COMPLAINT.
Surf City argues the trial court abused its discretion by denying the motion for leave to file an amended complaint. In that motion, which it filed after MMNA filed its motion for summary judgment, Surf City sought to add: (1) allegations to support its breach of contract and breach of the implied covenant claims; (2) new claims for breach of contract, breach of the implied covenant, fraud, and negligent misrepresentation against MMCA; (3) a new cause of action alleging violations of the Vehicle Code against MMNA; and (4) restitution for unjust enrichment to its prayer for relief.
"A trial court has wide discretion to allow the amendment of pleadings, and generally courts will liberally allow amendments at any stage of the proceeding. [Citation.] On a motion for summary judgment '"[w]here the complaint is challenged and the facts indicate that a plaintiff has a good cause of action which is imperfectly pleaded, the trial court should give the plaintiff an opportunity to amend."' [Citation.] But if the proposed amendment fails to state a cause of action, it is proper to deny leave to amend. [Citation.] [¶] Further, unwarranted delay in seeking leave to amend may be considered by the trial court when ruling on a motion for leave to amend [citation], and appellate courts are less likely to find an abuse of discretion where, for example, the proposed amendment is '"offered after long unexplained delay . . . or where there is a lack of diligence"' [citation]. Thus, when a plaintiff seeks leave to amend his or her complaint only after the defendant has mounted a summary judgment motion directed at the allegations of the unamended complaint, even though the plaintiff has been aware of the facts upon which the amendment is based, '[i]t would be patently unfair to allow plaintiffs to defeat [the] summary judgment motion by allowing them to present a "moving target" unbounded by the pleadings.'" (Falcon v. Long Beach Genetics, Inc., supra, 224 Cal.App.4th at p. 1280.)
The trial court's April 9, 2015 minute order explained its reasons for denying the motion for leave to amend as follows:
"On its own motion, the court takes judicial notice of South Coast Mitsubishi v. Mitsubishi Motors, 30-2014-00697990, which was filed on 1/13/14 and was assigned to Judge Chaffee. Mitsubishi Motors North America (MMNA) and [Mitsubishi Motors] Credit of America (MMCA) were original defendants. On 11/17/14, Plaintiff filed its First Amended Complaint adding a Sixth Cause of Action for Violation of the Vehicle Code.
"Although courts are generally liberal in granting leave to amend, this Motion is DENIED. [Surf City] failed to show a reasonable reason for delay in filing this motion to amend the pleadings. In South Coast Mitsubishi v. Mitsubishi Motors, [Surf City] sued [Mitsubishi Motors] Credit of America (MMCA), the new party and alleged the Violation of the Vehicle Code Cause of Action.
"'[U]nwarranted delay in seeking leave to amend may be considered by the trial court when ruling on a motion for leave to amend. . . . Thus, when a plaintiff seeks leave to amend his or her complaint only after the defendant has mounted a summary judgment motion directed at the allegations of the unamended complaint, even though the plaintiff has been aware of the facts upon which the amendment is based, "[i]t would be patently unfair to allow plaintiffs to defeat [the] summary judgment motion by allowing them to present a "moving target" unbounded by the pleadings."' [Citation.]
"The court has tentatively granted the summary judgment motion in favor of [Mitsubishi Motors] North America (MMNA). The denial of this motion for leave to amend does not prohibit [Surf City] from filing an independent action against [Mitsubishi Motors] Credit of America (MMCA) or filing new causes of action against [Mitsubishi Motors] North America (MMNA)."
Surf City has not shown the trial court abused its discretion by denying its motion for leave to amend. Surf City has not addressed the trial court's finding that Surf City unreasonably delayed in filing its motion seeking leave to amend the complaint. Surf City was fully aware of the facts underlying its proposed new and amended claims, based on the separate lawsuit in which it asserted some of those claims more than one year before filing its motion for leave to amend, but waited to file its motion until after MMNA filed its motion for summary judgment.
Surf City challenges the denial of its motion for leave to amend by arguing that the evidence discussed in its opening brief regarding summary judgment as to the breach of contract claim "illustrates the degree to which MMNA's breaches of the 2012 Dealer Agreement and the timing of deliveries and resulting excess finance charges were part of this case as actively litigated in discovery and motions. In seeking leave to amend its Complaint for various purposes, Surf City expressly requested leave to amend its First Cause of Action for Breach of Contract by pleading breach of the 2012 Dealer Agreement and by attaching it as an exhibit . . . and by including the allegations that 'MMNA required [Surf City] to carry excess inventory beyond its sales capacity with knowledge that MMCA could and would collect additional finance charges from [Surf City]' and that '[t]he excess finance charges imposed on [Surf City] continue to this day'. . . ."
Surf City does not provide any further analysis regarding the merits of its motion seeking leave to amend the complaint—with regard to its claims for breach of contract and breach of the implied covenant of good faith and fair dealing against MMNA or otherwise. (Surf City did not file an appellate reply brief.) We have explained that the trial court considered whether a triable issue of material fact existed regarding whether MMNA breached the 2012 Dealer Agreement and properly concluded none existed. We also have explained the undisputed evidence showed MMNA did not require Surf City to carry an excess inventory. We find no error.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
FYBEL, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.