Isolate Innovations v. Lisenko CA4/1

Opinion

Filed 8/19/26 Isolate Innovations v. Lisenko CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ISOLATE INNOVATIONS, LLC, D086411

Plaintiff and Appellant, v. (Super. Ct. No. 37-2022- 00022792-CU-IC-CTL) ANTHONY LISENKO, Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Carolyn M. Caietti, Judge. Affirmed. Demergian Law and David K. Demergian for Plaintiff and Appellant. G10 Law, Georgia Z. Schneider and Jared M. Salvati, for Defendant and Respondent. Isolate Innovations, LLC appeals the judgment entered against it after the trial court granted Anthony Lisenko’s motion for summary judgment on statute of limitations grounds. Resolving this matter by memorandum opinion (see generally People v. Garcia (2002) 97 Cal.App.4th 847), we affirm. I. A. Lisenko, Mauricio Calvi, George Panagiotou, and Costa Legal Center, APC entered a lease to rent office space from a corporation that has since assigned its relevant rights to Isolate. Kevin Tucker is the managing member of Isolate and was the president of the corporation that leased the office space to Lisenko and the other tenants. The lease began in August 2016 and was set to last through July 2021. Under the lease, if the tenants “fail[] to pay any Rent . . . and such failure continues for five (5) days after such payment is due and payable,” that nonpayment “shall constitute a default and breach of this Lease.” It is undisputed that Lisenko vacated the rental property and “no longer made or contributed to rent payments” under the lease as of January 2017. In deposition, Tucker testified that Lisenko was “the only one that [he] could rely on to pay the rent” because the other tenants “were, for lack of a better word, flakes.” He understood Lisenko, Calvi, and Panagiotou were business partners and Lisenko “was putting up the financial backing for the company, but they were partners.” When asked “when they stopped paying rent,” Tucker testified, “[w]ithin the first 12 months.” According to Tucker, after Lisenko left, Calvi “made one or two [rent] payments.” He explained how he served “some three-day notices” of past-due rent on Calvi and filed an unlawful detainer action “at some point in time,” in response to which Calvi “would come up with money for one month or something.” Tucker retook possession of the property in July 2018.

2 B. On June 13, 2022, Isolate sued Lisenko and the other tenants for allegedly breaching the lease. In the operative complaint, Isolate asserted claims for breach of contract, open book account, and account stated. Isolate claimed damages that include “past due rent from February 1, 2018[,] through July 31, 2018.” Lisenko moved for summary judgment. He argued, among other things, that “Isolate’s lawsuit and claims are barred by the statute of limitations” because he stopped paying rent more than four years before Isolate filed this lawsuit. Isolate opposed, arguing in part that “triable issues of material fact exist as to the date of breach of the Lease by all parties thereto and, therefore, when the applicable statute of limitations began.” (Italics omitted.) In support, Tucker submitted a declaration in which he attested that “[t]he other signatories to the Lease continued to occupy the Premises and pay Rent . . . after [Lisenko] claims to have moved.” He also attested that “the other co-signers of the Lease continued to occupy the Premises and pay Rent.” The trial court granted the motion and entered judgment in Lisenko’s favor and against Isolate after concluding “each cause of action is time- barred.” It found that, even if the tenants were jointly and severally liable, Tucker’s declaration about the other tenants paying rent “contradicts Tucker’s deposition testimony . . . of how the other tenants stopped paying rent within the first 12 months,” by August 2017, which is more than four years before the June 2022 filing of the lawsuit. II. Isolate contends triable issues of fact exist as to when the lease was breached, and thus when the statute of limitations began to run. Lisenko 3 argues Isolate forfeited this argument by not advancing it before the trial court and, in any event, no triable issue exists as to when the breach occurred. We address the merits without regard to forfeiture because we conclude summary judgment was proper on statute of limitation grounds. Summary judgment serves to “cut through the parties’ pleadings” to “determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A court should grant summary judgment if no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c(c).) We review summary judgment de novo, “considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained” and liberally construing the evidence in the light most favorable to the losing party. (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 717 [cleaned up].) Isolate’s contract and account claims are subject to a four-year statute of limitations. (Code Civ. Proc., § 337, subds. (a) & (b).) “A cause of action for breach of contract accrues at the time of breach, which then starts the limitations period running.” (Cochran v. Cochran (1997) 56 Cal.App.4th 1115, 1120.) Because Isolate filed this lawsuit in mid-June 2022, any breach occurring more than four years earlier, before mid-June 2018, would make its claims untimely. The lease defines breach to include nonpayment of rent. Although Lisenko stopped paying rent in January 2017, Isolate contends he and the other tenants are jointly and severally liable under the lease based on Civil Code section 1659, which presumes that parties “who unite in a promise [to] receive some benefit from the consideration” have 4 made a joint and several promise. Assuming joint and several liability, Isolate highlights evidence that Isolate appears to argue shows other tenants continued to pay rent through June 2018, as would be required for its claims to be timely. Based on a notice Tucker sent the tenants to demand payment of “the delinquent rent” for February 2018 through May 2018, Isolate contends we can infer “that rent was current through January 2018.” Viewing that evidence in the light most favorable to Isolate as the losing party, we agree. But that inference alone cannot save Isolate from summary judgment, as January 2018 still falls outside the four-year statute of limitations for the claims Isolate filed in June 2022. Isolate then points to Tucker’s testimony that Calvi (1) “made one or two payments” of rent after Lisenko left and (2) “would come up with money for one month or something” when an unlawful detainer was filed to argue that “payment would be forthcoming” on the past-due rent identified in the notice. Even construed liberally in Isolate’s favor, however, this evidence can at best be viewed to indicate two additional months of rent were paid following the notice. And those two additional months, which might make rent paid through March 2018, would not bring Isolate’s claims within the statute of limitations. To the extent Isolate suggests all delinquent rent in the notice was paid, on this record that claim veers into speculation. And “evidence that gives rise to no more than mere speculation cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Although Tucker later attested that the other tenants continued paying rent, to the extent Isolate wishes us to read that declaration to mean rent was paid through June 2018, “uncorroborated and self-serving declarations”

5 do not create a genuine issue of material fact. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) At best, the evidence Isolate identifies can be construed to show rent may have been paid through March 2018. And notably, Isolate fails to mention, let alone address, Tucker’s deposition testimony that the tenants stopped paying rent “[w]ithin the first 12 months.” “Where a declaration submitted in opposition to a motion for summary judgment motion clearly contradicts the declarant’s earlier deposition testimony or discovery responses, the trial court may fairly disregard the declaration and conclude there is no substantial evidence of the existence of a triable issue of fact.” (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087 [cleaned up].) The trial court did not err in doing so here. Because Isolate has not identified any evidence showing rent was paid through June 2018, it has failed to prove a triable issue of material fact as to when the statute of limitations began to run. Consequently, Isolate’s claims were untimely as a matter of law and summary judgment was thus proper.

6 III. We affirm. Lisenko is entitled to recover his appellate costs. (Cal. Rules of Court, rule 8.278(a).)

CASTILLO, Acting P. J.

WE CONCUR:

RUBIN, J.

BERMÚDEZ, J.