Filed 10/25/23 Fitness International v. Cole LA Riverside CA CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

FITNESS INTERNATIONAL, LLC,

 Plaintiff and Appellant,

v.

COLE LA RIVERSIDE CA, LP,

 Defendant and Respondent.

 G062740

 (Super. Ct. No. CVRI2101805)

 O P I N I O N

Appeal from a judgment of the Superior Court of Riverside County, Carol 

A. Greene, Judge. Affirmed. Requests for judicial notice. Granted.

Dorsey & Whitney, Bryan M. McGarry, Lynnda A. McGlinn, Jill A. 

Gutierrez and Jessica M. Leano; Ellenoff Grossman & Schole and Bryan M. McGarry for 

Plaintiff and Appellant.

Buchalter, Artin Betpera, Robert M. Dato, Robert S. McWhorter and Jarrett 

Osborne-Revis for Defendant and Respondent.
2

This case involves a commercial lease dispute between appellant Fitness 

International, LLC (Fitness) and respondent Cole LA Riverside CA, LP (Cole) arising out 

of the COVID-19 pandemic. Fitness appeals summary judgment entered in favor of Cole 

on Fitness’s complaint which sought, inter alia, to recoup rent payments made under 

protest for periods during which government orders prevented Fitness from operating its 

indoor health and fitness facility. According to Fitness, the trial court overlooked 

evidence which created a triable issue of fact as to a variety of its contentions, including 

breach of contract, impossibility, impracticability and frustration of purpose. On the 

record before us, we conclude otherwise and affirm the judgment.

FACTS

Fitness is an operator of indoor health club and fitness facilities throughout 

the United States. In 2008, Fitness and Cole’s predecessor in interest entered into a 15-

year real property lease agreement (the lease) concerning an approximately 50,000 square 

foot commercial space (the premises). Fitness agreed to pay monthly rent.

Pursuant to the lease terms, Fitness was required to open and operate a 

health club and fitness facility for one day. Thereafter, it could continue such operations, 

pivot to a different use not prohibited by the lease or in conflict with the landlord’s 

relevant exclusive use agreements, or cease operations entirely. 

After the completion of various improvements to the premises, Fitness

opened its health club and fitness facility in 2010. It continued the same use until events 

leading to the parties’ present dispute took place.

In March 2020, California Governor Gavin Newsom proclaimed a State of 

Emergency in California due to the threat of COVID-19. In the following weeks,

Governor Newsom issued multiple related executive orders. One limited residential and 

commercial evictions for non-payment of rent, while expressly not relieving a tenant of 

the obligation to pay rent or restricting a landlord’s ability to recover rent due. Another 

directed all California residents to stay home or at their place of residence, with certain 
3

exceptions, and directed all non-essential businesses to immediately stop operating. Nonessential businesses included gyms and fitness centers.

With operation of its health club and fitness facility temporarily illegal, 

Fitness ceased operations at the premises. Over the course of the following year, as the 

global pandemic unfolded, Fitness was periodically allowed to reopen its doors to the 

public for brief periods of time and at limited capacity. It was eventually able to return to 

normal operations.

The parties communicated concerning the pandemic’s impact on Fitness’s 

rent payments. Fitness believed certain contract provisions and legal doctrines excused 

rent during the mandatory closure periods. Cole disagreed. Ultimately, Fitness paid

under protest the full amount of rent due, reserving all rights and remedies with respect 

thereto. 

Fitness sued Cole to recover rent paid for all periods during which Fitness 

was legally prevented from operating its health club and fitness facility. Among other 

things, the first amended complaint alleged breach of contract, frustration of purpose, 

impossibility, and impracticability. It also relied on Civil Code section 1511, 

subdivisions (1) and (2)1, as grounds for the requested return of monies paid.

Cole moved for summary judgment on the complaint. It argued each of 

Fitness’s causes of action failed as a matter of law. Fitness opposed the motion, asserting 

alternative interpretations of the relevant lease language and contending there were 

triable issues of fact as to whether it was excused from paying rent during the closure 

periods under section 1511 and the alleged equitable doctrines.

The trial court agreed with Cole and entered judgment in its favor. Fitness 

timely appealed following entry of judgment.

1 All further statutory references are to the Civil Code, unless otherwise 

indicated. 
4

DISCUSSION

Fitness contends the trial court erred in concluding there is no triable issue 

of material fact as to any of its causes of action. It claims there are factual disputes to 

resolve concerning whether it was excused from paying rent during the COVID-19 

closure periods based on lease provisions, equitable doctrines and codified common law 

doctrines. We disagree. On the record before us, each of Fitness’s claims fails as a 

matter of law.

I. Summary Judgment Principles and Standard of Review

“The purpose of the law of summary judgment is to provide courts with a 

mechanism to cut through the parties’ pleadings in order to determine whether, despite 

their allegations, trial is in fact necessary to resolve their dispute. [Citation.]” (Aguilar v. 

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A summary judgment motion must 

be granted “‘if all the papers submitted show’ that ‘there is no triable issue as to any 

material fact’ . . . and that the ‘moving party is entitled to a judgment as a matter of 

law.’” (Ibid., citations omitted.) 

“[T]he trial court’s stated reasons for granting summary judgment ‘are not 

binding on us because we review its ruling, not its rationale.’” (Johnson v. Open Door 

Community Health Centers (2017) 15 Cal.App.5th 153, 157.) “‘We review the entire 

record, ‘considering all the evidence set forth in the moving and opposition papers except 

that to which objections have been made and sustained.’ [Citation.] Evidence presented 

in opposition to summary judgment is liberally construed, with any doubts about the 

evidence resolved in favor of the party opposing the motion. [Citation.]” (Regents of 

University of California v. Superior Court (2018) 4 Cal.5th 607, 618.) Credibility 

determinations, the weighing of evidence, and resolving factual disputes are not proper 

matters. (Calemine v. Samuelson (2009) 171 Cal.App.4th 153, 161; Kids’ Universe v. 

In2Labs (2002) 95 Cal.App.4th 870, 880; AARTS Productions, Inc. v. Crocker National 
5

Bank (1986) 179 Cal.App.3d 1061, 1065.) We affirm the summary judgment if correct 

on any of the grounds asserted in the moving party’s motion. (American Meat Institute v. 

Leeman (2009) 180 Cal.App.4th 728, 747-748.)

II. Breach of Contract

Fitness contends summary judgment on its breach of contract claim was 

error because the trial court misinterpreted the lease’s force majeure provision, failed to 

account for extrinsic evidence offered by Fitness which created a triable issue of material 

fact concerning the force majeure provision, and incorrectly concluded Cole did not 

breach a purported warranty made in the lease. We disagree with each of these claims.

We begin with force majeure. Section 22.3 of the lease provides: “If either 

party is delayed or hindered in or prevented from the performance of any act required 

hereunder because of strikes, lockouts, inability to procure labor or materials, retraction, 

after receipt of documentary approval, by the governing authorities of the Building 

Permit or any of the Required Project Entitlements, failure of power, riots, terrorism, 

insurrection, war, fire, inclement weather or other casualty (except casualty attributable to 

the party claiming the same shall not constitute a Force Majeure Event) or other reason of 

a similar or dissimilar nature beyond the reasonable control of the party delayed, financial 

inability excepted (each, a ‘Force Majeure Event’), subject to any limitations expressly 

set forth elsewhere in this Lease, performance of such act shall be excused for the period 

of delay caused by the Force Majeure Event and the period for the performance of such 

act shall be extended for an equivalent period (including delays caused by damage and 

destruction caused by such Force Majeure Event). Delays or failures to perform resulting 

from lack of funds or which can be cured by the payment of money shall not be Force 

Majeure Events.”

Fitness asserts the force majeure provision should be read to excuse both 

parties’ performance of lease obligations during the COVID-19 closure time periods. So 
6

its argument goes, the entire purpose of the lease was “for Fitness to have the right to 

operate the [p]remises as an indoor gym.” The COVID-19 pandemic, along with the 

resulting closures and restrictions, constituted a force majeure event which temporarily 

hindered or prevented the fulfillment of that fundamental purpose. Accordingly, the 

obligations of both parties were excused during the closures.

While there is little doubt the COVID-19 pandemic significantly impacted 

the business and personal lives of those in the United States and around the world, we are 

obligated to focus on the negotiated language of the parties memorialized in the lease. 

(See Healy Tibbitts Constr. Co. v. Employers’ Surplus Lines Ins. Co. (1977) 72 

Cal.App.3d 741, 748 [paramount rule governing contract interpretation is to give effect to 

mutual intent of parties, which is derived in first instance from language of contract].) 

The plain terms of the lease reveal the weaknesses of Fitness’s argument. 

The force majeure provision temporarily excuses performance of a required 

act which is hindered, delayed or prevented by a qualifying event. Here, Fitness is trying 

to claim its rent obligation was excused. However, it does not argue the COVID-19 

pandemic and the resulting closures impacted its ability to fulfill that obligation. The 

evidence demonstrates the opposite. Fitness was able to pay, and in fact paid, all rent due 

for the disputed time periods. (See Fitness International, LLC v. KB Salt Lake III, LLC

(Sept. 26, 2023, B320562) __ Cal.App.5th __ [p. 24](KB Salt Lake) [rejecting application 

of similar force majeure provision because tenant had funds to pay rent despite COVID19 closure orders]; West Pueblo Partners, LLC v. Stone Brewing Co., LLC (2023) 90 

Cal.App.5th 1179, 1188 [rejecting application of similar force majeure provision because 

no evidence tenant’s ability to pay rent was delayed, interrupted or prevented by COVID19].)

Contrary to Fitness’s assertion, nothing in the lease requires Fitness to 

operate an indoor gym throughout the lease’s term. Although it required Fitness to 

initially open for business as a health club and fitness facility, that requirement only 
7

applied for one day. Thereafter, Fitness could continue with the same use, cease its 

operations, or engage in any other use permitted by the lease.

Even assuming, arguendo, Fitness was required to operate an indoor gym 

on the premises and the COVID-19 closures impacted its ability to do so, it does not 

follow that the force majeure provision would excuse payment of rent. Based on the 

provision’s plain language, the act delayed or prevented by the qualifying event is the act 

temporarily excused. Thus, under this hypothetical, the force majeure provision would 

have only excused Fitness from operating its gym.

Fitness cites to what it calls “extrinsic evidence,” claiming it demonstrates 

the force majeure provision is reasonably susceptible to its urged interpretation. There 

are three types of offered evidence: (1) a lease agreement for a different premises to 

which Fitness is party; (2) court decisions from other states interpreting force majeure 

provisions in other contracts2; and (3) Fitness’s communications to Cole and payment of 

rent in protest following the closure orders. We are not persuaded.

“Extrinsic evidence is admissible to prove a meaning to which the contract 

is reasonably susceptible. . . . [¶] The threshold issue of whether to admit the extrinsic 

evidence—that is, whether the contract is reasonably susceptible to the interpretation 

urged—is a question of law subject to de novo review.” (Founding Members of the 

Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 

Cal.App.4th 944, 955 (Founding Members).)

Our charge in interpreting the lease is to determine the objective mutual 

intent of the parties at the time of contracting. (§ 1636; Bank of the West v. Superior 

2 Fitness requests we take judicial notice of various orders and judgments 

issued by courts in other states, as well as a document filed by Fitness in one of the cases. 

We grant the request, with the understanding we take judicial notice of the existence of 

the documents, not the truth of the matters contained therein. (Evid. Code, §§ 452, subd. 

(d)(2), 459; O’Neill v. Novartis Consumer Health, Inc. (2007) 147 Cal.App.4th 1388, 

1405.)
8

Court (1992) 2 Cal.4th 1254, 1264; Founding Members, supra, 109 Cal.App.4th at pp. 

955-956.) The language of a force majeure provision in a different lease to which Cole

and its predecessor-in-interest are not parties sheds no light on the parties’ intentions in 

this case. The same is true for Fitness’s actions after the closures occurred. Those 

actions are not the typical objective “course of conduct” actions which possibly aid in 

interpreting a contract; rather, they are subjective actions taken in the face of an 

inevitable and pending controversy. (See Crawford v. Continental Cas. Co. (1968) 261 

Cal.App.2d 98, 103 [“The parties are less liable to have been mistaken as to the intention 

of their contract during the period while harmonious and practical construction reflected 

that intention than they are when subsequent differences have impelled them to resort to 

law and one of them seeks a construction at variance with the practical construction they 

once placed on it” (internal quotations omitted)].)

Regarding decisions from courts of other states, Fitness provides no support 

for its claim that those decisions can constitute extrinsic evidence capable of revealing an 

ambiguity in the lease language. (Cf. KB Salt Lake, supra, __ Cal.App.5th __ [p. 26, fn. 

8] [rejecting use of other court holdings interpreting different contracts as extrinsic 

evidence to resolve claimed ambiguity in language of relevant contract].) Instead, as 

both Cole and Fitness elsewhere recognize, the decisions are only relevant to the extent 

we find them persuasive. (Lebrilla v. Farmers Group, Inc. (2004) 119 Cal.App.4th 1070, 

1077 [“Decisions of the courts of other states are only regarded as 

‘persuasive . . . depending on the point involved’”].) And we are not persuaded. The 

focus of the plain language of the force majeure provision is the required act that is 

delayed or prevented by the qualifying event. The undisputed evidence demonstrated 

Fitness’s rent obligation simply was not delayed or prevented by the COVID-19 

pandemic or the related closures.

Fitness next argues there is a triable issue of material fact concerning 

whether Cole was required to, but failed to, indemnify Fitness pursuant to a purported 
9

warranty in the lease. It relies on two lease provisions. Section 1.9 of the lease provides, 

in relevant part: “The ‘Initial Uses’ of the Premises shall be for the operation of a health 

and fitness facility . . . . Tenant shall have the right throughout the Term to operate the 

Premises, or any portion thereof, for uses permitted under this Lease.” Section 2.2 of the 

lease provides, in relevant part: “Landlord shall indemnify, defend and hold harmless 

Tenant from and against any and all losses, demands, claims, liabilities. damages, costs 

and expenses (including, without limitation, reasonable attorneys’ fees and expenses) 

arising as a result of any inaccuracy or breach of any representation, warranty or 

covenant of Landlord set forth in this Lease.” According to Fitness, Cole warranted 

Fitness would have the right to operate the premises as an indoor gym, that became 

inaccurate when COVID-19 restrictions forced Fitness to cease its gym operations, and 

the inaccuracy triggered the indemnification provision.

The lease evidences the identified statements in section 1.9 are neither 

warranties nor covenants nor representations, as those terms were used by the parties. 

Throughout the lease there are many locations where “Landlord warrants” or “Landlord 

represents” or “Landlord covenants” something, including elsewhere in section 1.9. No 

such language is used in the provisions identified by Fitness. In these circumstances, the 

absence indicates the parties did not intend the indemnification obligation to run to the 

specified portions of section 1.9, and Fitness offers no evidence of an intended different 

meaning.

For the first time in its reply brief, Fitness appears to argue the right to 

operate conferred in section 1.9 is a bargained for right which, in breach of the lease

irrespective of the indemnification provision, it did not receive during the closure periods. 

“‘Fairness militates against allowing an appellant to raise an issue for the first time in a 

reply brief . . . .’” (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 

142, 158.)
10

Even if we were to consider the argument, it is without merit. The lease 

specified Fitness “shall have the right throughout the Term to operate the 

Premises . . . for uses permitted under this Lease.” Elsewhere in the lease, Fitness 

provided a covenant to Cole it would “not use . . . the Premises . . . for any illegal 

purposes[.]” The closure orders temporarily made operation of Fitness’s gym unlawful, 

meaning such use was not permitted by the lease during the closure periods. 

Accordingly, Fitness was not deprived of its right to operate the premises for permitted 

uses during those times.

III. Frustration of Purpose, Impossibility, and Impracticability

Fitness contends there are triable issues of material fact regarding whether 

its obligation to pay rent during the closure periods was excused by the doctrines of 

frustration of purpose, impossibility and impracticability. We disagree. Under the facts 

presented, resort to these equitable doctrines is of no avail, as a matter of law.

Though historically separate doctrines, impossibility, impracticability and 

commercial frustration have similarities and overlap. “‘“A thing is impossible in legal 

contemplation when it is not practicable; and a thing is impracticable when it can only be 

done at an excessive and unreasonable cost.” [Citation.]’ [Citation.] This does not mean 

that a party can avoid performance simply because it is more costly than anticipated or 

results in a loss. [Citation.] Impracticability does not require literal impossibility but 

applies when performance would require excessive and unreasonable expense. 

[Citation.] Similarly, where performance remains possible, but the reason the parties 

entered the agreement has been frustrated by a supervening circumstance that was not 

anticipated, such that the value of performance by the party standing on the contract is 

substantially destroyed, the doctrine of commercial frustration applies to excuse 

performance.” (Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 

Cal.App.4th 1306, 1336.)
11

When the impossibility or impracticability are temporary, as opposed to 

permanent, the impact on performance is likewise temporary. Specifically, the duty to 

perform is only suspended while the temporary circumstances exist; it is not discharged 

or excused. (Maudlin v. Pacific Decision Sciences Corp. (2006) 137 Cal.App.4th 1001, 

1017 (Maudlin).)

Here, there is no evidence of impossibility or impracticability as to 

Fitness’s obligation to pay rent. Fitness has never argued the supervening COVID-19 

pandemic closure orders made it such that payment of rent could only be done at an 

excessive and unreasonable cost. Tellingly, Fitness paid all the required rent. Thus, 

impossibility and impracticability do not apply. (See SVAP III Poway Crossings, LLC v. 

Fitness Internat., LLC (2023) 87 Cal.App.5th 882, 893-894 (SVAP) [rejecting 

impossibility and impracticability arguments because no evidence pandemic and related 

closures made it impossible to pay rent].)

As for commercial frustration, recent cases call into question whether 

temporary frustration is recognized by California law. (KB Salt Lake, supra, __ 

Cal.App.5th __ [p. 34]; SVAP, supra, 87 Cal.App.5th at p. 896.) We need not decide the 

issue because even assuming it is, Fitness has not met its burden of demonstrating a 

triable issue of fact under the circumstances.

Frustration, whether temporary or permanent, requires a showing that the 

value of the lease to the party claiming the frustration is totally destroyed or nearly totally 

destroyed. (Lloyd v. Murphy (1944) 25 Cal.2d 48, 53 (Lloyd); SVAP, supra, 87 

Cal.App.5th at p. 896.) In exchange for payment of rent, a tenant in a leasehold generally 

receives the benefit of “the use, possession and enjoyment of the demised premises[,]”

along with any other promises made or rights granted in the specific lease at issue. 

(Santa Monica Rent Control Bd. v. Bluvshtein (1991) 230 Cal.App.3d 308, 317; see 

Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 322 [lease is the granting of “possession 

and use of (land, buildings, rooms, movable property, etc.) to another in return for rent or 
12

other consideration”].) Thus, in the lease context, a tenant claiming frustration must 

demonstrate, inter alia, the circumstances have prevented the tenant from engaging in all 

allowable uses of the premises. (Lloyd, supra, at pp. 53-54; Grace v. Croninger (1937) 

12 Cal.App.2d 603, 606-607; Davidson v. Goldstein (1943) 58 Cal.App.2d Supp. 909, 

911-912 (Davidson).)

Here, the lease did not limit Fitness to using the premises as an indoor 

health and fitness club. Without seeking approval from Cole, Fitness could engage in a 

variety of ancillary uses including weight loss and nutritional advising, food and 

beverage service (e.g., juice bar, healthy or natural foods), and the sale of apparel, 

exercise or health related electronic media, vitamin and nutritional supplements, and

other fitness related items. And subject to Cole’s option to terminate the lease, Fitness 

could pivot to a different primary use not excluded by the lease terms. There is no 

evidence COVID-19 or the closures precluded Fitness from engaging in these alternative 

uses.

Fitness argues there is a triable issue of fact as to whether Fitness 

reasonably could have engaged in a different use at the premises. It cites evidence it has 

only ever operated indoor health and fitness facilities during its 37-year existence, its 

employees are hired and trained for such an operation, its expertise lies in the indoor 

fitness industry, it has never changed the primary use of a leased premises, it would have 

lost the benefit of the $6 million it invested in improvements to the premises for indoor 

gym purposes, and it would have needed to invest additional time and money to make the 

premises suitable for an alternative use. It also notes, pursuant to its membership 

agreement with customers, it could not have charged for fitness classes offered remotely 

via the internet or some other electronic means.

These facts, even if true, would not support a finding of commercial 

frustration. “[L]aws or other governmental acts that make performance unprofitable or 

more difficult or expensive do not excuse the duty to perform a contractual obligation.” 
13

(Lloyd, supra, 25 Cal.2d at p. 55; see, e.g., Davidson, supra, 58 Cal.App.2d Supp. at p. 

911 [rejecting frustration argument where government regulations did not impact portion 

of tenant’s business even though continuing with business would probably be 

unprofitable].)

Fitness also received the benefit of possession of the premises during the 

closure periods. Such possession was valuable in at least two ways. One, Fitness was 

able to keep all its equipment and other personal property on-site, thereby avoiding the 

cost of moving and storing such property elsewhere. Two, Fitness was able to reopen its 

doors immediately when government orders were modified in a way that made its indoor 

gym operation allowable. “[F]rustration is no defense if . . . counterperformance remains 

valuable.” (Lloyd, supra, 25 Cal.2d at p. 54.)

Finally, even assuming there was evidence of a total destruction or near 

total destruction of the value of the lease, a temporary frustration would at most suspend, 

but not discharge, a performance obligation. (Maudlin, supra, 137 Cal.App.4th at p. 

1017, quoting Rest.2d, Contracts, § 269 [temporary impracticability or frustration].) 

Thus, once the circumstances giving rise to the temporary frustration ceased to exist, 

Fitness would have been obligated to pay the rent owed for the closure periods. 

(Maudlin, supra, at pp. 1017-1018.)

IV. Civil Code Section 1511

Fitness’s final argument is its obligation to pay rent during the closure 

periods was excused by sections 1511(1) and 1511(2). These sections, which codify 

certain common law principles, do not excuse performance under the circumstances for 

reasons similar to those discussed above.

Section 1511(1) excuses a party’s contractual obligation to perform if 

“performance . . . is prevented or delayed . . . by the operation of law.” Section 1511(2) 

excuses a party’s contractual obligation to perform if performance “is prevented or 
14

delayed by an irresistible, superhuman cause.” Here, however, there is no evidence 

COVID-19 (the claimed superhuman cause) or the related government orders (the law) 

prevented or delayed Fitness’s payment of rent. The trial court correctly concluded 

Fitness’s allegations relying on these statutory provisions failed as a matter of law. (See

KB Salt Lake, supra, __ Cal.App.5th __ [pp. 40-41] [reaching same conclusion based on 

same facts]; SVAP, supra, 87 Cal.App.5th at p. 894 [same].)

DISPOSITION

The judgement is affirmed. Cole is entitled to its costs on appeal.

DELANEY, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOTOIKE, J.