Filed 2/29/24 Culver City Mall v. Shanghai No. 1 Seafood Village CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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This opinion has not been certified for publication or ordered published for purposes of 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

SECOND APPELLATE DISTRICT

DIVISION ONE

CULVER CITY MALL LLC et al.,

Plaintiffs and Respondents,

v.

SHANGHAI NO. 1 SEAFOOD 

VILLAGE, INC., et al.,

Defendants and Appellants.

 B322183

 (Los Angeles County

 Super. Ct. No. 21STCV16837)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Michael L. Stern, Judge. Affirmed.

_______________

P&N Law Firm, Ruben R. Newell and Pooja Patel for 

Defendants and Appellants.

Ballard Spahr, Brian D. Huben and Nahal Zarnighian for 

Plaintiffs and Respondents.
2

Shanghai No. 1 Seafood Village, Inc. (Shanghai) and 

Eric Qian (Qian) appeal from a judgment against them in a 

breach of lease and guarantee lawsuit by Shanghai’s former 

landlords, Culver City Mall LLC (Culver City Mall) and Valencia 

Town Center Venture, L.P. (Valencia Mall) (collectively, the Malls). 

At trial, Shanghai and Qian argued that governmental restrictions 

on dine-in restaurants during the COVID-19 pandemic excused 

their obligations to pay rent. Their only challenge is to the 

sufficiency of the evidence to support the trial court’s findings in

rejecting the pandemic-related affirmative defenses. As discussed 

below, we conclude that regardless of governmental restrictions or 

the challenged factual findings, the leases obligated the restaurants 

to pay rent. We affirm.

FACTUAL BACKGROUND

Shanghai entered into two virtually identical leases

(collectively, the leases) with the Malls. Qian personally 

guaranteed the lease with Valencia Mall. The leases required 

that Shanghai use the leased spaces solely for “the operation of 

an Azabu Sabo [the trade name for the restaurant listed in the 

agreements] Japanese restaurant.”

The leases contain force majeure clauses addressing the 

possibility that either party is “delayed in the performance of its

initial construction, or maintenance and/or repair obligations, by

reasons of[, inter alia,] . . . Acts of God . . . restrictive governmental 

laws or controls; [or] judicial orders.” These clauses permit such 

delayed performance to “be excused for the period of the delay . . . 

provided, however, that the time for performance shall in no 

event be extended due to[, inter alia,] financial or economic 

problems of either party.” The force majeure clauses impose 

notice requirements as “a condition of [Shanghai]’s right to claim 
3

an extension of time as a result [of a force majeure event].” These

clauses further provide: “Notwithstanding anything to the contrary, 

the occurrence of any of the events of force majeure herein described 

shall not excuse [Shanghai]’s obligations to pay minimum annual 

rental, percentage rental and additional rent[

1] . . . or excuse such 

obligations as this lease may otherwise impose on the party to obey,

remedy or avoid such event.” (Capitalization omitted & italics 

added.)

Beginning in January 2020, Shanghai failed to pay any rent

and Qian paid nothing to Valencia Mall under the guaranty. The 

Malls filed a breach of lease and breach of guaranty complaint 

against Shanghai and Qian.

Following a bench trial, the court issued a judgment in 

favor of the Malls. In its written judgment, the trial court rejected 

Shanghai and Qian’s affirmative “defenses of frustration of purpose, 

excuse of performance, impossibility or force majeure based on 

their inability to operate restaurants and pay rent . . . due to the 

shutdowns of their business locations due to the Covid pandemic.”

As to frustration of purpose, the judgment provided that the “value 

of [the] lease” had not been “destroyed by a governmental order.”

The court noted Shanghai’s restaurants “had some ‘inside’ dining 

capacity, but were take-out or take-and-carry food establishments 

where customers would order and take their food with them while 

shopping at the mall locations.” The court acknowledged the

possibility that Shanghai “could no longer sell food to the public due 

to mall inaccessibility or foot trade restrictions due to governmental 

1 The leases include exceptions to this provision for situations 

involving the partial or total destruction of the premises or a taking 

of the premises under the power of eminent domain. Shanghai and 

Qian do not argue that these exceptions apply.
4

Covid regulations followed by [the Malls] that limited access 

to customers.” It noted, however, that Shanghai and Qian had 

“presented no evidence that they contacted [the Malls], at any 

level, or made attempts or requests for permission to modify their 

business practices to allow continued and adapted food sales or 

sought to negotiate rent modifications or abatements.” Nor had 

they presented any evidence “showing that it was more likely

than not that they attempted to operate a functioning business.”

As to impossibility, the court further noted that the leases’ 

force majeure clauses contemplate situations in which performance 

becomes either impossible or valueless, and that Shanghai and 

Qian had not established any right to relief under the terms of 

those clauses.

This appeal followed.

DISCUSSION

On appeal, Shanghai and Qian argue that the trial court 

erred in rejecting their affirmative defenses, because the court 

premised this rejection on a finding that is not supported by 

substantial evidence: namely, that Shanghai’s restaurants “were 

take-out or take-and-carry food establishments” and thus capable 

of operating despite pandemic-related governmental restrictions. 

They describe Shanghai’s restaurants as “serving hot pot, Japanese 

food known as Shabu-Shabu,” which is necessarily a dine-in 

experience in that “the food is served uncooked at the table and 

the patrons put the food into a bowl of hot broth to let it cook at

the table.” They point to uncontradicted testimony, including 

testimony from the Malls’ witnesses, that the express purpose of the 

leases was to operate dine-in Shabu-Shabu restaurants. Their sole 

argument on appeal is that, because of the court’s unsupported 
5

factual finding about the nature of the restaurants, the court 

reversibly erred in rejecting their COVID-19 affirmative defenses.

Whether or not the court correctly found that Shanghai could 

offer take out at the leased spaces, and whether or not the purpose 

of the leases was to operate exclusively dine-in restaurants, 

Shanghai and Qian still have not established reversible error. We 

briefly analyze each defense below, and for the purposes of these 

analyses, we assume that the restaurants were dine-in only and 

that the purpose of the leases was to operate such dine-in only 

restaurants.

2

As to impossibility, Shanghai and Qian argue COVID-19 

pandemic government closure orders made it illegal for Shanghai to 

operate a dine-in restaurant. But Shanghai’s obligation under the 

lease was to pay rent, and government closure orders did not make 

it illegal for Shanghai to pay rent.

2 As to whether the lease permitted Shanghai to operate

a take-out restaurant at the leased spaces, we note that the 

“permitted use[s]” (capitalization omitted) section of the leases 

provides that Shanghai “shall use the premises only for the purpose 

of conducting the business specifically set forth in the data sheet 

and for no other purpose.” (Capitalization omitted.) The portion 

of the leases titled “data sheet” provides that the “premises shall 

be used for the operation of an Azabu Sabo [the trade name for the 

restaurant listed in the agreements] Japanese restaurant preparing 

and serving the following traditional Japanese menu items as its

primary offerings: Katsu dishes (pork) and curry dishes, Japanese 

noodle dishes such as ramen, and udon and similar dishes, 

Japanese confections and deserts plus a variety of coffee and tea 

drinks . . . prepared and served on [the] premises. . . . The premises 

shall be used solely for the use stated above and for no other use 

or purpose.” (Capitalization omitted.)
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As to the affirmative defense of excused nonperformance, 

Shanghai and Qian cite Civil Code section 1151, which can excuse

“[t]he want of performance of an obligation . . . [¶] . . . [¶] . . . [w]hen 

it is prevented or delayed by an irresistible, superhuman cause.” 

Even if the pandemic had prevented Shanghai from fulfilling its

obligations to pay rent under the leases, Civil Code section 1151 

expressly states it does not excuse performance when, as here, “the 

parties have expressly agreed to the contrary.” (Civ. Code, § 1511, 

subd. (2).) Specifically, the parties agreed that “the occurrence 

of any of the events of force majeure herein described”—including 

“restrictive governmental laws or controls [or] judicial orders” or 

“Acts of God”—“shall not excuse [Shanghai]’s obligations to pay 

[rent due under the leases].”

Shanghai and Qian argue that this language cannot 

prevent their frustration of purpose defense, because it appears 

in a force majeure clause that “only applied to initial construction 

[obligations].” (Boldface omitted.) Specifically, they point to the 

first clause in the first sentence of that provision: “In the event 

either party . . . shall be delayed in the performance of its initial 

construction, or maintenance and/or repair obligations, by reasons 

of [various force majeure events] . . . then performance of such 

act shall be excused for the period of the delay.” (Italics added.) 

Shanghai and Qian contend, with no further analysis, that this 

“ ‘plain language’ ” shows the inapplicability of the force majeure 

clause because initial construction on both locations had concluded 

before the pandemic began. They fail, however, to read this first 

clause in the context of the entire force majeure provision.

The first clause of the force majeure provision excuses 

delays in performing initial construction, maintenance and/or 

repair obligations—it does not speak to the obligation to pay rent 

under the lease. Another portion of the force majeure clause does 
7

speak to the payment of rent, however, and provides—without 

limitation—that it will never be excused by an act of force majeure: 

“Notwithstanding anything to the contrary, the occurrence of any 

of the events of force majeure herein described shall not excuse 

[Shanghai]’s obligations to pay minimum annual rental, percentage 

rental and additional rent . . . or excuse such obligations as this 

lease may otherwise impose on the party to obey, remedy or avoid 

such event.” (Capitalization omitted.) Thus, although some terms 

of the force majeure clause address only situations involving certain 

construction, repair, and maintenance obligations, those terms are 

inapplicable here. The term in the clause that is applicable—the 

term addressing the payment of rent—reflects an agreement that 

Shanghai would continue to pay rent, even in the face of force 

majeure events. 

The force majeure clauses likewise preclude the frustration 

of purpose affirmative defense. 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.’ ” (Dorn v. Goetz (1948) 85 

Cal.App.2d 407, 410.) However, “ ‘[i]t is settled that if the parties 

have contracted with reference [to the frustrating event] or have 

contemplated the risks arising from it, they may not invoke the 

doctrine of frustration to escape their obligations.’ [Citations.]” 

(Glenn R. Sewell Sheet Metal, Inc. v. Loverde (1969) 70 Cal.2d 

666, 676.) Here, the leases expressly address a situation where 

“restrictive governmental laws or controls” or “Acts of God” prevent 

or delay performance and provide that such events do not relieve 

Shanghai of its obligation to pay rent.
8

Thus, regardless of whether or not substantial evidence 

supports the court’s finding regarding the nature of the restaurant 

Shanghai planned to or was permitted to operate on the leased 

premises, and regardless of whether or not the purpose of the lease 

was to operate an exclusively dine-in restaurant, the court did not 

err in rejecting their COVID-19 pandemic-related affirmative 

defenses. 

DISPOSITION

We affirm the judgment. Respondents are awarded their 

costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

BENDIX, J.

WEINGART, J.