Flagship West, LLC v. Excel Realty Partners, L.P.

MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFFS’ MOTION FOR INTERPRETATION OF LEASE (Doc. 500) AND DENYING DEFENDANT’S MOTION TO STRIKE AND/OR FOR LEAVE TO FILE SUR-REPLY BRIEF (Doc. 508)

This case is before the Court after remand by the Ninth Circuit Court of Appeal. The Ninth Circuit reversed the Court’s granting of Flagship West, LLC’s and Marvin and Kathleen Reiche’s (“Flagship”) election of rescission of its lease with Excel Realty Partners, L.P. (“Excel”) after a jury found that Excel materially violated an “exclusive use” provision of the lease. The trial court ruling that judicial estoppel precluded Excel from asserting that § 4.5 of the lease bars rescission, was not warranted and the limited remand was “so that the district court may determine in the first instance whether the contract, in its entirety, allows for rescission and whether California law would give effect to the lease’s limitations on remedies in these circumstances.” Specifically:

A supplemental scheduling conference was held. The Supplemental Scheduling Conference Order filed on August 14, 2009 (Doc. 499), states: “Plaintiff shall not raise any new matter in the reply memorandum of law.”

Flagship…