Flagship West, LLC v. Excel Realty Partners LP

MEMORANDUM *

Excel Realty Partners LP (“Excel”) appeals the district court’s order granting Excel’s tenant, Flagship West, LLC (“Flagship”), rescission of its lease based on a determination that Excel materially violated an “exclusive use” provision of that lease. The district court invoked judicial estoppel to prevent Excel from asserting that § 4.5 of the lease bars rescission. Because we find judicial estoppel was not warranted here, we remand for the district court to determine whether rescission is an available remedy under California law and the terms of the contract.

Determining whether judicial estoppel should be invoked is informed by several factors: (1) whether a party adopts a position clearly inconsistent with its earlier position; (2) whether the court accepted the party’s earlier position; and (3) whether the party would gain an unfair advantage or impose an unfair detriment on the opposing party if not estopped. New Hampshire v. Maine, 532 U.S. 742, 750-51 , 121 S.Ct. 1808 , 149 L.Ed.2d 968 (2001). These factors do not weigh in favor of judicial estoppel in the present case.

First, Excel’s litigation positions were not clearly inconsistent. There is no evidence…