Filed 2/16/24 Fitness International v. Andrews Rancho Del Sur CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE

FITNESS INTERNATIONAL, LLC, 

Plaintiff and Appellant,

v.

ANDREWS RANCHO DEL SUR,

Defendant and Respondent.

B325595

Los Angeles County

Super. Ct. No. 

20STCV43366

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Timothy Patrick Dillon, Judge. Affirmed.

Klehr Harrison Harvey Branzburg, A. Grant Phelan, Mary 

Ellen O’Laughlin; Freeman, Freeman & Smiley, Saul Ewing

and Dawn B. Eyerly for Plaintiff and Appellant.

Ferruzzo & Ferruzzo, Gregory J. Ferruzzo and Sean E. 

Morrissey for Defendant and Respondent.

_________________________
2

Plaintiff Fitness International, LLC (Fitness) appeals 

a summary judgment in favor of defendant Andrews Rancho 

Del Sur (Andrews) on Fitness’s complaint to recover rent 

payments made under protest during the months when state 

and local closure orders responding to the COVID-19 pandemic 

prevented Fitness from operating its indoor health club. Fitness 

contends the orders excused its obligation to pay rent under both

the terms of the parties’ lease and the frustration of purpose

doctrine. We conclude otherwise and affirm.

BACKGROUND

Fitness operates indoor health clubs nationwide in 

properties leased from commercial landlords, such as Andrews. 

Andrews owns a shopping center located in Downey.

In December 1999, Fitness entered into an agreement with 

Andrews to lease an approximately 41,000 square foot building 

in the shopping center. The lease required Fitness to construct 

the building and outfit it for use as a health club. In 2005, the 

parties executed an amendment to the lease, authorizing Fitness 

to add another 11,800 square feet of space to the building. The 

lease provides for a 15-and-a-half-year term plus three five-year 

extension options.

In March 2001, the city of Downey issued Fitness a 

certificate of occupancy permitting it to use the premises as 

a health club and fitness facility. Since then, Fitness has used 

the leased premises solely for this purpose.

In March 2020, the Governor proclaimed a state of 

emergency in California and issued a set of related executive 

orders to address the public health threat posed by COVID-19. 

One order instituted a moratorium on residential and commercial 

evictions for nonpayment of rent, while expressly declaring that 
3

“[n]othing” in the order “shall relieve a tenant of the obligation 

to pay rent, nor restrict a landlord’s ability to recover rent due.” 

Another order directed all California residents to stay home, 

with certain exceptions, and directed all non-essential businesses 

to stop operating immediately.

Consistent with the Governor’s executive order, on 

March 16, 2020, the County of Los Angeles Department of 

Public Health issued an order requiring the closure of “Gyms 

and Fitness Centers” within Los Angeles County, including 

Fitness’s health club. The next day Fitness ceased all health club 

operations at the leased premises and froze membership dues.

Over the course of the following year, Fitness was 

periodically allowed to reopen its doors to the public for brief 

periods of time and at limited capacity. On June 15, 2021, it was 

finally able to return to normal operations.

Fitness did not vacate or surrender possession of the 

leased premises during the closure period. Nor did it attempt 

to terminate the lease. Instead, Fitness exercised an option to 

extend the lease for five years, effective September 2020. It also 

kept its equipment on the premises during the closure period 

and requested permission to install three electric car charging 

stations in the parking area.

During the closure period, Andrews sent Fitness eight 

default notices for nonpayment of rent. Fitness paid the rent

under protest, reserving all rights and remedies with respect to 

the payments.

Fitness sued Andrews to recover the rent paid under 

protest. Among other things, the complaint asserted causes 

of action for breach of contract and a common count for money 

had and received.
4

Andrews moved for summary judgment. It argued the 

lease unambiguously obligated Fitness to pay rent in exchange 

for Andrews leasing the premises to Fitness. Fitness opposed 

the motion, arguing Andrews had guaranteed Fitness the right 

to use the premises as a health club and its obligation to pay 

rent was therefore excused during the period that Andrews was 

in breach of this guarantee. Fitness also argued the doctrines 

of impossibility and impracticability excused its performance.

The trial court agreed with Andrews and entered judgment 

in its favor. Fitness timely appealed.

DISCUSSION

1. 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.” (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.)

In an appeal from a summary judgment, “[w]e 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.” (Regents of University of California v. Superior

Court (2018) 4 Cal.5th 607, 618.) We will affirm a summary 

judgment if it is correct on any of the grounds asserted in the 
5

moving party’s motion. (American Meat Institute v. Leeman

(2009) 180 Cal.App.4th 728, 747–748.)

2. The Lease Does Not Excuse Fitness from Paying Rent 

During the Government-Ordered Closure Period

Fitness contends its “obligation to pay rent was conditioned 

on [Andrews’s] constant, repetitive, and repeatable obligation 

to Fitness that Fitness could use and enjoy the Premises for 

a health club and fitness facility every month, throughout the 

term of the Lease.” It argues Andrews “breached” this obligation 

during the COVID-19 closure periods, when Fitness was

temporarily prohibited from legally operating as a health club. 

While this purported breach persisted, Fitness maintains its 

obligation to pay rent under the lease was abated. We disagree.

Section 2.2 of the lease sets forth Andrews’s 

representations and warranties as landlord. Those include 

representations about Andrews’s authority to conduct business, 

its title to the premises, its compliance with “applicable laws . . . 

in effect as of the Commencement Date” of the lease, and its 

obligation to deliver the premises to Fitness free of latent or 

patent defects. None of these representations or warranties 

makes any mention of Fitness’s health club operations or of 

the parties’ obligations to comply with applicable laws after 

the lease’s commencement date. 

Fitness nonetheless contends Andrews’s purported 

obligation to ensure the premises could be legally used as a 

health club throughout the lease term is set forth in section 1.9 

of the lease, titled “Initial Uses,” which provides: 

“The ‘Initial Uses’ of the Building shall be 

for the operation of a health club and fitness 

facility . . . . As part of the health club and 
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fitness facility operated on the Premises, 

Tenant may use portions of the Premises 

for uses ancillary to a health club and fitness 

facility . . . . So long as Tenant (or its successor 

or assigns) is operating as a health club and 

fitness facility, Tenant (or its successor or 

assigns) shall have the right throughout the 

Term and all Option Terms to operate for uses 

expressly permitted under this Lease and 

Landlord will not allow any other fitness 

related operation . . . to operate in the 

Shopping Center.”

Although the word “guarantee” is nowhere to be found 

in the provision, Fitness nonetheless argues the reference to its 

“right ‘to operate’ ” in section 1.9 constitutes “a guarantee . . . 

that its purpose for entering into the Lease—the right to operate 

a health club and fitness facility—would at all times be fulfilled.” 

Because there plainly is no express guarantee of this sort in 

section 1.9 or anywhere else in the lease, Fitness necessarily asks 

us to imply one. There is no basis to do so. As we will explain, 

because the lease states the parties’ obligations completely—

specifically with respect to compliance with legal regulations 

and restrictions—we cannot imply a covenant making Andrews 

liable for regulations that temporarily rendered Fitness’s use 

of the premises illegal.

Implied covenants generally are not favored because courts 

recognize we “cannot make better agreements for parties than 

they themselves have been satisfied to enter into.” (Walnut Creek 

Pipe Distributors, Inc. v. Gates Rubber Co. Sales Division (1964) 

228 Cal.App.2d 810, 815 (Walnut Creek Pipe); Cousins Inv. Co. v. 
7

Hastings Clothing Co. (1941) 45 Cal.App.2d 141, 143.) Judicial 

authority to insert implied covenants is therefore subject to 

many strict rules of construction, including that “ ‘there can 

be no implied covenant where the subject is completely covered 

by the contract.’ ” (Lippman v. Sears Roebuck & Co. (1955) 

44 Cal.2d 136, 142 [listing rules governing implied covenants].) 

Nor may an implied covenant be drawn from the mere recital 

of facts that do not express a promise or agreement. On the 

contrary, the law requires some clear statement in the contract 

from which the court may reasonably infer the party to be 

charged with an implied obligation intended to assume liability

for it. (See O’Sullivan v. Griffith (1908) 153 Cal. 502, 506; 

see, e.g., McArthur v. Goodwin (1916) 173 Cal. 499, 505.) 

Under these rules, we cannot imply a covenant making 

Andrews liable for government orders that temporarily rendered 

Fitness’s use of the premises illegal, because Fitness expressly 

covenanted that it would ensure its uses of the premises were 

lawful. Section 8.3 of the lease provides: “Tenant [Fitness] 

hereby covenants to Landlord [Andrews] that, during the Term 

of the Lease and for so long thereafter as Tenant occupies the 

Premises, Tenant shall . . . (e) not use or allow the Premises to 

be used for any illegal purposes.” Consistent with that covenant, 

section 8.1 states: “If any governmental license(s) or permit(s) 

shall be required for the proper and lawful conduct of Tenant’s 

business or other activity carried on in the Premises, or if a 

failure to procure such a license or permit might or would in 

any way adversely affect Landlord or the Premises, then Tenant, 

at Tenant’s expense, shall duly procure and thereafter maintain 

such license(s) or permit(s) and submit the same for inspection by 

Landlord.” (Italics added.) In view of Fitness’s express covenants 
8

that it would not use the premises for an illegal purpose and that 

it would take measures necessary to ensure it could conduct its 

business in a “proper and lawful” manner during the lease term, 

we cannot imply a covenant making Andrews liable for the 

temporary illegality of Fitness’s operation. (See, e.g., SVAP III 

Poway Crossings, LLC v. Fitness International, LLC (2023) 

87 Cal.App.5th 882, 891 (Poway Crossings) [landlord’s express 

covenant and warranty that, “ ‘as of the Effective Date, Tenant’s 

Initial Uses of the Premises will not violate any applicable rule, 

regulation, requirement or other law of any governmental agency 

. . . applicable as of the date hereof’ ” precluded implied covenant 

requiring landlord “to make that guarantee throughout the 

term of the lease” (italics added)].)

Fitness suggests its express covenants have no bearing

on its rights or obligations under the lease because, with or 

without the covenants, “[n]o one is privileged to use any property 

for unlawful purposes.” We are not persuaded. As Fitness 

itself emphasizes, a fundamental rule of contract interpretation 

directs that, to the extent practicable, a contract must be read 

as a whole, with individual clauses helping to interpret others, 

so as to give effect to all provisions and to avoid rendering some 

meaningless. (Zalkind v. Ceradyne, Inc. (2011) 194 Cal.App.4th 

1010, 1027, citing Civ. Code, § 1641; accord Poway Crossings, 

supra, 87 Cal.App.5th at p. 891.) Consistent with this principle, 

Fitness’s “right . . . to operate for uses expressly permitted” under 

the lease must be read together with its express covenants, which 

necessarily limit the scope of this “right” to only lawful uses. 

(Italics added.) More to the point, the broad reference to 

Fitness’s “right” to operate in section 1.9 cannot be read 

to impose an implied obligation on Andrews to bear the risk 
9

that Fitness’s operations could be rendered illegal, because

the express covenants in sections 8.1 and 8.3 unambiguously

allocate the relevant obligations and attendant risks of illegality 

to Fitness.

Fitness insists that, in entering the lease and making

substantial improvements to the property, it plainly intended to 

operate a health club on the premises throughout the lease term.1 

That may be true, but neither that purpose nor the possibility 

that Fitness’s investment might lose value is sufficient to imply 

a covenant making Andrews the guarantor of those operations. 

“It is not enough to say that without the proposed implied 

covenant, the contract would be improvident or unwise or 

would operate unjustly. Parties have the right to make such 

agreements. The law refuses to read into contracts anything 

by way of implication except upon grounds of obvious necessity.” 

(Walnut Creek Pipe, supra, 228 Cal.App.2d at p. 815.) As 

discussed, the lease expressly assigns to Fitness the obligation 

1 As Andrews points out, the express terms of the lease 

give reason to doubt Fitness’s claim that it intended to use the 

premises only as a fitness facility throughout the lease term. 

Specifically, section 1.9 provides that Fitness’s “ ‘Initial Uses’ ” 

of the premises “shall be for the operation of a health club and 

fitness facility,” while section 8.1 requires Fitness to open for 

business on the premises for only “one (1) day for the Initial 

Uses set forth in Section 1.9.” Section 8.2 in turn provides that, 

“[f]ollowing such initial opening for business . . . , [Fitness] shall 

have the right to change the use of the Premises to any alternate 

lawful use which is not otherwise prohibited.” The fact that 

Fitness bargained for this right casts doubt on its contention 

that it never anticipated changing its use of the premises, 

as circumstances might demand. 
10

to ensure it uses the premises for only lawful operations, and 

this obligation necessarily carries with it the attendant risk that 

those operations could be rendered illegal during the lease term.

There is no obvious necessity for the covenant that Fitness asks 

us to imply here.

Rejecting this implied covenant does not render section 1.9 

illusory or meaningless. At its core, the fundamental bargain 

embodied in the lease is Andrews’s promise to grant Fitness 

possession of the premises in exchange for Fitness’s promise 

to pay rent to Andrews.2 Consistent with that bargain, we can 

reasonably infer that, in recognizing Fitness “shall have the 

right throughout [the lease term] to operate for uses expressly 

permitted,” Andrews implicitly covenanted not to interfere with 

Fitness’s permitted uses of the premises. As the trial court 

recognized, this implied covenant is consistent with Andrews’s

central promise to grant Fitness possession of the premises and 

accords with Andrews’s express covenant in the last clause of 

section 1.9 “not [to] allow any other fitness related operation . . . 

to operate in the Shopping Center,” “[s]o long as [Fitness] is

operating as a health club and fitness facility.” There is no 

evidence that Andrews interfered with Fitness’s possession or 

2 These mutual promises are plainly set forth in section 2.1, 

which reads: “In consideration of the rents agree[d] to be paid 

and of the covenants and agreements made by the respective 

parties hereto, Landlord hereby demises and leases to Tenant 

and Tenant hereby leases from Landlord the Premises, upon 

the terms, conditions and provision set forth in this Lease.” 

Critically, nothing in this section or any other provision of 

the lease expressly ties Fitness’s obligation to pay rent to the

operation of a fitness center or any other particular type of

operation on the premises. 
11

use of the premises. The trial court did not err in concluding 

Fitness had an obligation to pay rent under the lease, 

notwithstanding the disruption to its operations occasioned 

by the COVID-19 closure orders.

3. Fitness’s Obligation to Pay Rent Was Not Excused 

Due to a Temporary Frustration of Purpose

Fitness contends the frustration of purpose doctrine 

temporarily excused its obligation to pay rent during the closure 

periods. We disagree. As our colleagues in Division Seven 

recently explained, the frustration of purpose doctrine does 

not excuse Fitness from its obligation to pay rent because 

Fitness did not attempt to rescind the lease but instead remained 

in possession of the premises. (KB Salt Lake III, LLC v. Fitness 

International, LLC (2023) 95 Cal.App.5th 1032, 1057 (Salt Lake).)

“The doctrine of frustration excuses contractual obligations 

where ‘ “[p]erformance remains entirely possible, but the whole 

value of the performance to one of the parties at least, and the 

basic reason recognized as such by both parties, for entering into 

the contract has been destroyed by a supervening and unforeseen 

event.” ’ [Citation.] A party seeking to escape the obligations 

of its lease under the doctrine of frustration must show: 

(1) the purpose of the contract that has been frustrated was 

contemplated by both parties in entering the contract; (2) the 

risk of the event was not reasonably foreseeable and the party 

claiming frustration did not assume the risk under the contract; 

and (3) the value of counterperformance is totally or nearly 

totally destroyed. [Citations.] Governmental acts that merely 

make performance unprofitable or more difficult or expensive do 

not suffice to excuse a contractual obligation.” (Poway Crossings, 

supra, 87 Cal.App.5th at p. 895; Salt Lake, supra, 95 Cal.App.5th 
12

at p. 1056; see Lloyd v. Murphy (1944) 25 Cal.2d 48, 55; Dorn v. 

Goetz (1948) 85 Cal.App.2d 407, 410–413.) Where the doctrine 

applies, “the ‘legal effect . . . is the immediate termination of the 

contract.’ ” (Poway Crossings, at p. 896; Salt Lake, at p. 1056; see 

Johnson v. Atkins (1942) 53 Cal.App.2d 430, 434–435; see also 

20th Century Lites v. Goodman (1944) 64 Cal.App.2d Supp. 938, 

945 [“ ‘frustration brings the contract to an end forthwith’ ”].)

“At least two courts have held California law does not 

recognize ‘temporary’ frustration of purpose, which ostensibly 

excuses a party’s performance under a contract temporarily 

until the cause of the frustration abates.” (Salt Lake, supra,

95 Cal.App.5th at p. 1056, citing Poway Crossings, supra, 87 

Cal.App.5th at p. 896; 20th Century Lites v. Goodman, supra,

64 Cal.App.2d Supp. at p. 945.) As the Salt Lake court explained, 

“[t]his conclusion follows from the legal effect of the frustration 

doctrine, which terminates the contract.” (Salt Lake, at p. 1056; 

Poway Crossings, at p. 896; 20th Century Lites, at p. 945.)3

3 Fitness cites Maudlin v. Pacific Decision Sciences Corp.

(2006) 137 Cal.App.4th 1001 and Bergin v. van der Steen (1951) 

107 Cal.App.2d 8 for the proposition that California law does 

recognize temporary frustration of purpose. As the Salt Lake 

court explained, Maudlin does not support the proposition 

because the case addressed the doctrine of temporary 

impossibility or impracticability—not temporary frustration 

of purpose. (See Maudlin, at p. 1017; Salt Lake, supra,

95 Cal.App.5th at p. 1056.) Similarly, in Bergin, although 

the reviewing court used the term “temporary frustration,” 

it is clear from the facts of the case that the court addressed 

what amounted to a temporary impossibility. (Bergin, at p. 16.) 

The contract in Bergin required one party to pay the equivalent 

of two-and-a-half percent of its gross sales from a concession 

at a racetrack to the other party as a commission. (Id. at p. 10.) 
13

Ultimately, the Salt Lake court found no need to decide 

the issue because, regardless of whether our state law embraces

the temporary frustration of purpose doctrine, it would not 

excuse Fitness from its obligation to pay rent as Fitness “did not 

attempt to rescind the lease and instead remained in possession 

of the premises.” (Salt Lake, supra, 95 Cal.App.5th at p. 1057.) 

We reach the same conclusion for the same reason. As the court 

in Grace v. Croninger (1936) 12 Cal.App.2d 603 explained, “even 

where the sole business to which premises are restricted by the 

terms of a lease becomes unlawful, the lease is not terminated 

merely by the enactment of the law declaring such business 

unlawful, but liability under the lease continues as long as 

the lessee continues in possession.” (Id. at p. 606.) The Grace 

court relied on the Supreme Court’s reasoning in Industrial 

Development & Land Co. v. Goldschmidt (1922) 56 Cal.App. 507, 

where, in denying rehearing, our high court stated a lessee 

could not “continue to hold possession of the premises after 

the prescribed business became unlawful, and escape payment 

of the rent on the ground of such illegality, without surrendering 

to the lessor.” (Id. at p. 512; see Grace, at p. 606; Salt Lake, 

at pp. 1057–1058.) 

Here, the undisputed facts show Fitness remained in 

possession of the premises, storing its equipment in the building

and requesting permission to install three electric car charging 

However, in 1942 to 1944, wartime government regulations 

forbade race meets, which rendered it impossible for the 

concession to make any sales at the racetrack and, thus, 

impossible to pay the commission. (Id. at p. 13.) That plainly 

is not the case here, as the undisputed facts show Fitness 

was able to pay rent under its lease with Andrews during 

the closure period, albeit under protest.
14

stations in the parking area, in anticipation of the closure orders 

being lifted. Thus, even if California law recognized temporary 

frustration of purpose, Fitness was still obligated to make rent 

payments under the lease for the time it remained in possession 

of the premises. (See Salt Lake, supra, 95 Cal.App.5th at 

p. 1058.)

DISPOSITION

The judgment is affirmed. Defendant Andrews Rancho 

Del Sur is entitled to costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

ADAMS, J.