Delta Zee Solutions LLC v. Britannia Tucson LLC et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Delta Zee Solutions LLC,
Plaintiff,
v.
Britannia Tucson LLC, et al.,
Defendants.
No. CV-25-00414-TUC-AMM (MSA)
REPORT AND
RECOMMENDATION
Before the Court is Plaintiff Delta Zee Solutions’ motion for declaratory judgment,
which the Court will construe as a motion for judgment on the pleadings. So construed, the
motion is suitable for decision without oral argument. The Court will recommend that the
motion be denied.
Background1
Defendant Britannia Tucson LLC owns commercial property in Tucson, Arizona.
(Doc. 14, ¶¶ 13–16; Doc. 16, ¶¶ 13–16.) In August 2024, Defendant and Plaintiff entered
into an agreement for Plaintiff to lease the property (the Lease). (Doc. 18, ¶ 10.) The Lease
includes a standard form agreement (Paragraphs 1 through 49) and an addendum drafted
by the parties (Paragraphs 50 through 61). (Doc. 18, ¶ 11; Doc. 14-1.) Relevant here,
Paragraph 2.2 required that Defendant “deliver” possession of the “Premises” to Plaintiff
1 For purposes of a motion for judgment on the pleadings, “the allegations of the non-
moving party must be accepted as true, while the allegations of the moving party which
have been denied are assumed to be false.” Hal Roach Studios, Inc. v. Richard Feiner &
Co., 896 F.2d 1542, 1550 (9th Cir. 1989) (citing Doleman v. Meiji Mut. Life Ins., 727 F.2d
1480, 1482 (9th Cir. 1984)).
Case 4:25-cv-00414-AMM-MSA Document 43 Filed 01/09/26 Page 1 of 13

- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
“on the Commencement Date or the Early Possession Date, whichever first occurs (‘Start
Date’).” (Doc. 14-1, ¶ 2.2) Paragraph 1.3 defines “Commencement Date” as “January 1,
2025.” (Id. ¶ 1.3.) Paragraph 51 provided that the “start date of the lease” would “be
adjusted to reflect the true date of commencement” if there were delays in construction.
(Id. ¶ 51.) Finally, Paragraph 3.3 provided that, if Defendant failed to deliver possession
within 120 days after the Commencement Date, the “Lease shall terminate unless other
agreements are reached . . . in writing.” (Id. ¶ 3.3.)
In commercial leasing, the landlord ordinarily performs its improvement work on
the premises before turning the premises over to the tenant; and upon receipt of possession,
the tenant then performs its improvement work. (Doc. 18, ¶ 25.) Here, at Plaintiff’s request,
Defendant agreed to perform the landlord and tenant work simultaneously. (Id. ¶¶ 26–27.)
After executing the Lease, Defendant immediately retained an architect. (Id. ¶ 28.) The
architect repeatedly asked Plaintiff about its requirements for the Premises, but Plaintiff
failed to timely respond. (Id. ¶¶ 33–34.) Plaintiff also repeatedly changed its specifications
for the Premises. (Id. ¶ 35.) Plaintiff’s conduct resulted in months of delay. (Id. ¶¶ 34–60.)
The City of Tucson issued building permits on April 23, 2025. (Id. ¶ 61.) Thereafter,
Defendant called Plaintiff to discuss cost allocation for the tenant improvements. (Id. ¶ 62.)
On May 1, Plaintiff’s officer responded that he wanted to wait for the final plans before
allocating costs. (Id. ¶ 64.) On May 6, Plaintiff’s officer told Defendant that Plaintiff was
not responsible for any HVAC costs, as the system had been overengineered and had too
many units. (Id. ¶ 65.) On May 8, Defendant sent an email about the HVAC work, and
Plaintiff’s officer answered that he would respond “as soon as possible.” (Id. ¶¶ 68–70.)
Plaintiff did not respond further regarding the HVAC system. (Id. ¶¶ 70–74.) Plaintiff did,
however, move personal property into, and installed equipment on, the Premises during
May and June 2025. (Id. ¶¶ 92–93.)
Notwithstanding the foregoing, on June 12, Plaintiff sent a letter to Defendant,
asserting for the first time that the Lease had terminated automatically on May 1. (Id. ¶ 83.)
Specifically, Plaintiff asserted that Paragraph 3.3’s automatic termination provision was
Case 4:25-cv-00414-AMM-MSA Document 43 Filed 01/09/26 Page 2 of 13

- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
triggered when Defendant failed to deliver possession of the Premises within 120 days of
the Commencement Date of January 1, as defined in Paragraph 1.3. (Id. ¶¶ 84–85.)
Defendant, believing that the Commencement Date had “adjusted” under Paragraph 51 due
to delays in construction, replied by sending Plaintiff a notice of default. (Id. ¶¶ 86, 94.)
When Plaintiff failed to cure its default, Defendant followed up with a notice that it had
elected to terminate the Lease. (Id. ¶¶ 95–99.)
In this lawsuit, each party sues the other for breach of contract (among other things),
and each seeks a declaratory judgment concerning the effect of the automatic termination
provision in Paragraph 3.3. (Doc. 14, ¶¶ 118–21; Doc. 18, ¶¶ 107–12.) Plaintiff filed the
currently pending motion for declaratory judgment, requesting that the Court interpret the
Lease expeditiously so as to narrow and streamline discovery. (Docs. 30, 31.)
Discussion
I. The motion will be construed as a motion for judgment on the pleadings.
There are two threshold procedural disputes. First, Defendant argues that there is no
such thing as a motion for declaratory judgment. Plaintiff responds that it “does not waive,
and expressly reserves, any future argument that its Motion for Declaratory Judgment does
not require an underlying procedural basis and may proceed independently.” (Doc. 36, ¶ 4.)
Nevertheless, Plaintiff agrees that the Court may treat the motion as one for judgment on
the pleadings under Federal Rule of Civil Procedure 12(c). (Id. ¶¶ 2–3.)
Defendant is correct that “a party may not make a motion for declaratory relief”
because “such a motion is inconsistent with the Federal Rules.” Kam-Ko Bio-Pharm
Trading Co. v. Mayne Pharma (USA) Inc., 560 F.3d 935, 943 (9th Cir. 2009) (quoting Int’l
Bhd. of Teamsters v. E. Conf. of Teamsters, 160 F.R.D. 452, 456 (S.D.N.Y. 1995)). So, the
Court will follow Plaintiff’s suggestion to construe the motion as one for judgment on the
pleadings under Rule 12(c). See id. (“The district court thus properly construed Kam-Ko’s
‘motion’ for declaratory judgment as a motion for summary judgment on Kam-Ko’s
‘action’ for declaratory judgment.”).
Second, Defendant argues that Plaintiff’s Rule 12(c) motion is improper because it
Case 4:25-cv-00414-AMM-MSA Document 43 Filed 01/09/26 Page 3 of 13

- 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
seeks to resolve less than an entire claim. (Def.’s Resp. 4–5.) Defendant argues further that
Plaintiff’s “claim” of declaratory relief is not a claim at all; it is a remedy tied to Plaintiff’s
claim of breach of contract and thus not suited for decision under Rule 12(c). (Id. at 5.)
Plaintiff responds that a standalone claim for declaratory relief is appropriate under
28 U.S.C. § 2201, and that its motion properly seeks to resolve the entirety of its claim for
such relief. (Pl.’s Reply 8–9.) Nonbinding caselaw suggests that it is proper to decide a
“claim” for declaratory relief under Rule 12(c). See Marks v. UMG Recordings, Inc.,
No. 24-1756, 2025 WL 1121645, at *1 (9th Cir. Apr. 16, 2025) (affirming the district
court’s grant of judgment on the pleadings on a party’s “claim for declaratory relief”). For
that reason, and because Plaintiff is not entitled to judgment at this point anyway, the Court
will proceed to the merits of the motion.
As a final matter, Plaintiff says that its motion is not a “conventional Rule 12(c)
motion challenging the sufficiency of the pleadings independent of the request for
declaratory relief.” (Pl.’s Reply 2.) Plaintiff requests leave to amend its motion “[t]o the
extent the Court were to conclude that any procedural adjustment or clarification is
required.” (Id. at 3.) It is not clear what Plaintiff means in stating that its motion is not a
“conventional Rule 12(c) motion.” The motion is being construed as a Rule 12(c) motion,
so the Rule 12(c) standard applies. See Kam-Ko, 560 F.3d at 943 (construing the motion
for declaratory relief as a motion for summary judgment and thus applying the summary-
judgment standard). As explained below, under the Rule 12(c) standard, there is a factual
dispute regarding the parties’ contractual intent that precludes judgment on the pleadings.
II. Plaintiff is not entitled to judgment on the pleadings.
A Rule 12(c) motion is subject to a similar standard as a Rule 12(b)(6) motion to
dismiss for failure to state a claim. United States ex rel. Cafasso v. Gen. Dynamics C4 Sys.,
Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011) (quoting Dworkin v. Hustler Mag. Inc.,
867 F.2d 1188, 1192 (9th Cir. 1989)). This standard requires that “the allegations of the
non-moving party . . . be accepted as true,” and that “the allegations of the moving party
which have been denied [be treated as] false.” Hal Roach Studios, Inc. v. Richard Feiner
Case 4:25-cv-00414-AMM-MSA Document 43 Filed 01/09/26 Page 4 of 13

- 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
& Co., 896 F.2d 1542, 1550 (9th Cir. 1989) (citing Doleman v. Meiji Mut. Life Ins.,
727 F.2d 1480, 1482 (9th Cir. 1984)). It further requires that the facts be “construed in the
light most favorable to [the nonmoving] party.” Unite Here Local 30 v. Sycuan Band of the
Kumeyaay Nation, 35 F.4th 695, 700 (9th Cir. 2022) (quoting Gen. Conf. Corp. of Seventh-
Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230
(9th Cir. 1989)). “Judgment on the pleadings is properly granted when there is no issue of
material fact in dispute, and the moving party is entitled to judgment as a matter of law.”
Health Freedom Def. Fund, Inc. v. Carvalho, 148 F.4th 1020, 1026 (9th Cir. 2025) (en
banc) (quoting Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009)).
Here, Plaintiff’s motion for judgment on the pleadings seeks an interpretation of the
Lease. The Lease is governed by the law of the state in which the Premises are located, so
Arizona law applies. (Doc. 14-1, ¶ 29.) In Arizona, “[t]he purpose of contract interpretation
is to determine the parties’ intent and enforce that intent.” Roe v. Austin, 433 P.3d 569, 574
(Ariz. Ct. App. 2018) (quoting Grosvenor Holdings, L.C. v. Figueroa, 218 P.3d 1045, 1050
(Ariz. Ct. App. 2009)). In determining contractual intent, the court generally starts with
“the plain meaning of the words in the context of the contract as a whole.” Worldwide Jet
Charter, Inc. v. Toulatos, 523 P.3d 398, 401 (Ariz. Ct. App. 2022) (quoting Grosvenor,
218 P.3d at 1050). But the court may also “consider surrounding circumstances, including
negotiation, prior understandings, and subsequent conduct.” Taylor v. State Farm Mut.
Auto Ins., 854 P.2d 1134, 1139 (Ariz. 1993) (citing Darner Motor Sales, Inc. v. Universal
Underwriters Ins., 682 P.2d 388, 398 (Ariz. 1984)). The court may consider extrinsic
evidence of the parties’ intent when the “contractual language is reasonably susceptible to
the interpretation asserted by the proponent of the evidence.” Starr Pass Resort Devs., LLC
v. Pima County, 550 P.3d 1111, 1120 (Ariz. Ct. App. 2024). This is true even when the
contractual language seems unambiguous. Taylor, 854 P.2d at 1140 (“The meaning that
appears plain and unambiguous on the first reading of a document may not appear nearly so
plain once the judge considers the [extrinsic] evidence.”). When a contract is “susceptible
to more than one interpretation,” the issue of contractual intent “should be submitted to the
Case 4:25-cv-00414-AMM-MSA Document 43 Filed 01/09/26 Page 5 of 13

- 6 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
jury.” State v. Mabery Ranch, Co., 165 P.3d 211, 219 (Ariz. Ct. App. 2007) (citing Taylor,
854 P.2d at 1145).
Under these standards, Plaintiff’s motion must be denied if there is a material factual
dispute concerning the parties’ contractual intent. See Unite Here Local 30, 35 F.4th at 700
(stating that judgment is proper only when “there is no issue of material fact” (citing
Fleming, 581 F.3d at 925)); Taylor, 854 P.2d at 159 (holding that the parties’ contractual
intent was an issue of fact for the jury). As explained below, Defendant has shown the
existence of such a dispute by offering a competing interpretation to which the Lease is
reasonably susceptible, and which is supported by the surrounding circumstances.
The parties’ disagreement centers on Paragraphs 1.3 and 3.3 of the form contract
and Paragraph 51 of the addendum. Paragraph 1.3, titled “Term,” defines “Commencement
Date” as “January 1, 2025,” and further directs the reader to “*see P 51.” (Doc. 14-1, ¶ 1.3)
Paragraph 51 provides:
51. Paragraph 1.3 Term, continued. If the substantial completion of
construction, as outlined in Paragraph 57 below, is not complete by
December 31, 2024 and [Plaintiff] is not able to move into the Premises, then
the start date of the lease shall be adjusted to reflect the true date of
commencement. In such case, the parties shall execute an Addendum to the
Lease regarding the new commencement date and the related changes to the
Base Rent schedule as shown in paragraph 53, below.
(Id. ¶ 51.)
Paragraph 3.3 provides, in relevant part:
3.3 Delay In Possession. [Defendant] agrees to use commercially reasonable
efforts to deliver exclusive possession of the Premises to [Plaintiff] by the
Commencement Date. . . . If possession is not delivered within 60 days after
the Commencement Date, as the same may be extended under the terms of
any Work Letter executed by Parties, [Plaintiff] may, at its option, by notice
in writing within 10 days after the end of such 60 day period, cancel this
Lease, in which event the Parties shall be discharged from all obligations
hereunder. If such written notice is not received by [Defendant] within said
10 day period, [Plaintiff’s] right to cancel shall terminate. If possession of
the Premises is not delivered within 120 days after the Commencement Date,
this Lease shall terminate unless other agreements are reached between
[Defendant] and [Plaintiff], in writing.
Case 4:25-cv-00414-AMM-MSA Document 43 Filed 01/09/26 Page 6 of 13

- 7 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(Id. ¶ 3.3.)
According to Plaintiff, Paragraph 1.3 fixed the Commencement Date on January 1,
2025, and Paragraph 3.3 set an outside deadline of 120 days from that date (May 1, 2025)
for Defendant to deliver possession. (Pl.’s Mot. 7.) Plaintiff says that Paragraph 51 has no
effect on this scheme; rather, it allows the parties “to adjust the rent-commencement date
and the start of the Lease term if construction delays the date of exclusive possession.”
(Id. at 9.) Stated differently, Plaintiff asserts that “Paragraph 51 governs rent and term
calculation—not delivery deadlines.” (Id.) If this is correct, then the Lease automatically
terminated on May 1, when Defendant failed to deliver possession. (Id. at 11.)
Defendant offers a different interpretation. Defendant says that Paragraph 1.3 set
the Commencement Date on January 1, 2025, unless the improvements to the Premises
were not completed and Plaintiff could not take possession. (Def.’s Resp. 7.) In that case,
Defendant says, Paragraph 51 provided that the Commencement Date would be “adjusted
to reflect the true date of commencement,” and the 120-day deadline set in Paragraph 3.3
would necessarily adjust as well. (Id.)
To start, the Lease is reasonably susceptible to Defendant’s interpretation. Indeed,
in a comparison with Plaintiff’s, Defendant’s is the more natural reading. Paragraph 1.3,
titled “Term,” defines “Commencement Date.” Paragraph 51, titled “Paragraph 1.3 Term,
continued” provides that “the start date of the lease shall be adjusted to reflect the true date
of commencement.” Because Paragraph 51 is an express continuation of the subject matter
of Paragraph 1.3, the most natural reading is that Paragraph 51 provides for adjustment of
what is defined in Paragraph 1.3. Further, Paragraph 3.3 fits easily into this straightforward
reading: the 120-day deadline is measured from the Commencement Date, whether as
originally defined in Paragraph 1.3 or as adjusted under Paragraph 51.
In addition, since the Lease is reasonably susceptible to Defendant’s interpretation,
extrinsic evidence supporting that interpretation would be admissible. While there is no
evidence in the record to consider, Defendant’s factual allegations are the equivalent of
evidence given that the Court is bound to accept them as true. Defendant alleges that, after
Case 4:25-cv-00414-AMM-MSA Document 43 Filed 01/09/26 Page 7 of 13

- 8 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
May 1, Plaintiff discussed construction costs with Defendant, moved personal property
onto the Premises, and installed equipment on the Premises. (Doc. 18, ¶¶ 64–65, 92–93.)
Such conduct suggests that Plaintiff understood that January 1 was not set in stone as the
Commencement Date. Thus, the surrounding circumstances support Defendant’s assertion
that the parties intended Paragraph 51 to adjust the Commencement Date from January 1
for all purposes, including delivery of possession. See Taylor, 854 P.2d at 1143 (“State
Farm’s subsequent conduct may shed light on its understanding of what was covered by
the agreement.”).
Defendant’s interpretation is supported by the contractual language and surrounding
circumstances. Thus, assuming that the Lease is also reasonably susceptible to Plaintiff’s
interpretation, there is a material dispute as to the parties’ contractual intent. This precludes
judgment on the pleadings. See Mabery Ranch, Co., 165 P.3d at 224 (“Where interpretation
of a contract is needed because its terms are reasonably susceptible to different meanings,
the matter should be submitted to the jury.” (citing Taylor, 854 P.2d at 1145)).
Plaintiff challenges Defendant’s reading on several grounds, but none is persuasive.
Plaintiff first argues that Defendant’s interpretation “nullifies” and “erases” Paragraph 3.3.
(Pl.’s Mot. 8–9.) That is, according to Plaintiff, Defendant could move the Commencement
Date “indefinitely” until it “elects to deliver possession,” such that “the 120-day outside
deadline in Paragraph 3.3 never begins.” (Id. at 8.) But this is not a realistic concern. The
landlord’s benefit from a rental agreement is rent (obviously). Here, rent would not be paid
until two months after Plaintiff took possession. (Doc. 14-1, ¶¶ 1.5, 53.) Plaintiff does not
explain, nor is it apparent to the Court, why Defendant would ever choose to intentionally
delay its receipt of rent. In any event, the Lease requires performance within a reasonable
time. (Id. ¶¶ 3.3, 13.6(a).) In addition, as Defendant explains, state law implies a duty to
perform within a reasonable time, and the covenant of good faith and fair dealing requires
that discretion not be exercised in a way that deprives the other party of its reasonable
expectations. (Def.’s Resp. 11–12.) In short, Defendant was required and incentivized to
bring about the Commencement Date within a reasonable time. As that would start the 120-
Case 4:25-cv-00414-AMM-MSA Document 43 Filed 01/09/26 Page 8 of 13

- 9 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
day deadline in Paragraph 3.3, it simply is not true that Defendant’s reading “nullifies” and
“erases” that deadline.
Plaintiff next argues that Defendant’s interpretation “produces an incoherent and
commercially unreasonable result” because it effectively changes the Lease to read “[i]f
possession is not delivered within 120 days after the date the Lessor decides the Lessee
may take possession, this Lease shall terminate.” (Pl.’s Mot. 9.) This is the same argument
discussed above. It is not persuasive. Plaintiff adds that its own interpretation “preserves
commercial predictability,” and that it “bargained for a space it needs to conduct its
business, not the uncertainty that [Defendant] alleges is created by Addendum paragraph
51.” (Id. at 7, 9.) “Arizona law does not adopt interpretations that allow one party to
unilaterally delay its performance indefinitely or that produce absurd or commercially
unreasonable results,” Plaintiff says. (Id. at 9.)
Plaintiff’s point about commercial workability and predictability would hold more
weight had the parties not deviated from commercial practice in a material way. The
customary practice is for the landlord and tenant work to be completed in series, not at the
same time. (Doc. 18, ¶ 25.) That is, the landlord completes its work; the landlord then turns
over possession to the tenant; and the tenant then completes its work. (Id.) In that scenario,
it makes perfect sense to hold the landlord to a 120-day deadline; after all, the tenant can do
nothing but wait for the landlord to complete its work and deliver possession. Here, though,
Defendant agreed to Plaintiff’s request that the landlord and tenant work be performed at
the same time. (Id. ¶¶ 26–27.) Defendant’s interpretation of Paragraph 51 is logical in this
context. Plaintiff’s work surely would have some effect on Defendant’s ability to complete
its work. So, it makes sense that the parties would reach an agreement that would not leave
Defendant exposed in the event that Plaintiff was dilatory or otherwise obstructive. As read
by Defendant, Paragraph 51 does just that by adjusting the Commencement Date based on
the progress of the landlord and tenant work and Plaintiff’s resultant ability to move into
the Premises. (Def.’s Resp. 7–8.)
Plaintiff argues next that its interpretation is supported by the fact that Paragraph 51
Case 4:25-cv-00414-AMM-MSA Document 43 Filed 01/09/26 Page 9 of 13

- 10 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
does not mention “termination, outside deadlines, or delivery of possession.” (Pl.’s Mot. 9.)
But why should it? Those topics are addressed in Paragraph 3.3. As previously explained,
Paragraph 1.3 defines the start point of the Lease term. Paragraph 51 is a continuation of
Paragraph 1.3, providing that the start point would be adjusted under certain circumstances.
These linked provisions determine the “termination, outside deadlines, [and] delivery of
possession” issues within the meaning of Paragraph 3.3. Read this way, the provisions are
in harmony. Plaintiff’s assertions to the contrary are not persuasive. (See id. at 9–10 (stating
that Defendant’s reading makes Paragraph 51 “override” Paragraph 3.3 and “subordinates”
Paragraph 3.3 to Paragraph 51).)
Plaintiff highlights that Paragraph 1.3 defines the term “Commencement Date”
(capitalized), while Paragraph 51 uses the terms “date of commencement” and “new
commencement date” (uncapitalized). (Pl.’s Reply 5.) Plaintiff argues that this distinction
shows that Paragraph 51 does not “redefine the capitalized term ‘Commencement Date.’”
(Id.) And since Paragraph 3.3 does use the capitalized term, Plaintiff argues that the Court
must apply the capitalized definition set forth in Paragraph 1.3 (“January 1, 2025”). (Id.)
It is true that parties can use capitalization to alter the meaning of a word, and that
use of the same word in lowercase can signal a different meaning. See Horton v. Mitchell,
29 P.3d 870, 874 (Ariz. Ct. App. 2001) (quoting Chandler Med. Bldg. Partners v. Chandler
Dental Grp., 855 P.2d 787, 791 (Ariz. Ct. App. 1993)). However, this rule is not absolute,
and there is good reason here to think that Paragraph 51 does not refer to a commencement
date separate from the one defined in Paragraph 1.3: the addendum, which was drafted by
the parties, is brimming with capitalization and other drafting inconsistencies. For instance,
while the form contract defines the capitalized term “Lease,” that word appears in the
addendum capitalized and in lowercase—with both versions appearing in Paragraph 51.
(See Doc. 14-1, ¶ 51 (“the lease” and “the Lease”).) While the form contract defines the
122-month lease period as the “Original Term,” the addendum refers to that period as the
“original Lease Term” and “lease term.” (Id. ¶¶ 1.3, 56, 60.) Similarly, the addendum gives
Plaintiff an option to extend the Original Term for an “additional consecutive period of
Case 4:25-cv-00414-AMM-MSA Document 43 Filed 01/09/26 Page 10 of 13

- 11 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
five (5) years” and defines that period as the “Option Term”—and then immediately
ignores that defined term, referring to the five-year period as the “Option period.”
(Id. ¶ 56.)2 In this ocean of scrivener carelessness and oversight, Plaintiff has not convinced
the Court that Paragraph 51’s use of lowercase words is meaningful.
Plaintiff next argues that Defendant errs in focusing on Paragraph 51, because that
“provision is by it[s] express terms a continuation of Paragraph 1.3, not Paragraph 3.3.”
(Pl.’s Reply 4.) Plaintiff places significance on the fact that nothing “show[s] that
Paragraph 3.3 was ever continued or amended.” (Id.) But why does that matter? The Lease
must be read as a whole. Toulatos, 523 P.3d at 401 (quoting Grosvenor, 218 P.3d at 1050).
Paragraph 3.3 creates obligations tied to to the “Commencement Date,” and the meaning
of “Commencement Date” is determined under Paragraph 1.3 and Paragraph 51. As has
already been stated, these provisions can be read in harmony.
Next, Plaintiff says that Defendant’s reading “turns the Lease inside out” because it
“treat[s] substantial completion of construction as the trigger for the Lease term and rent
schedule under Paragraph 51, while treating delivery of exclusive possession as a separate
obligation that may occur later—so long as it occurs sometime within 120 days after
substantial completion.” (Pl.’s Reply 4.) Plaintiff argues that it cannot be that the Lease
“allow[s] the tenant’s core benefit—exclusive possession—to float independently.” (Id.)
This argument is difficult to understand. Even under Plaintiff’s interpretation, “delivery of
exclusive possession [is] a separate obligation that may occur [after the Commencement
Date].” The clock would start on January 1, but Defendant could deliver possession at any
point thereafter before May 1. Thus, under both sides’ interpretations, exclusive possession
“float[s] independently.” As phrased, Plaintiff’s point is not clear.
Plaintiff finally argues that “if ‘Commencement Date’ is redefined to mean the
2 More: the addendum is inconsistent in its use of the defined term “Base Rent.” (See
Doc. 14-1, ¶ 53 (“Base rent”), ¶ 56 (“base rent”).) The form contract uniformly capitalizes
“Paragraph” when referencing other provisions, but the addendum uses it capitalized and
in lowercase. (See id. ¶ 51 (“Paragraph 57 below” and “paragraph 53, below”).) And while
the form contract defines Plaintiff as “Lessee,” the addendum uses “Lessee,” “the Lessee,”
“Delta Zee Solutions,” “Tenant,” and “tenant”—frequently switching between terms in the
same paragraph. (See id. ¶¶ 55–56, 58.)
Case 4:25-cv-00414-AMM-MSA Document 43 Filed 01/09/26 Page 11 of 13

- 12 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
eventual date [Plaintiff] can move in (or substantial completion plus move-in), then
Paragraph 3.3 measures ‘delay’ by reference to its own endpoint. The 60-day option and
120-day termination clause cease to be meaningful protections because the clock never
starts until possession is delivered.” (Pl.’s Reply 6.) This argument misstates Defendant’s
position. As noted, the Commencement Date could occur before delivery of possession. In
that case, the deadlines would operate as intended.
One last matter: Defendant raises three arguments not addressed above as to why
Plaintiff is not entitled to declaratory relief. These arguments are easily dispensed with.
First, Defendant argues that to the extent Paragraph 3.3 and Paragraph 51 conflict, the
Court should apply the canon favoring written terms over form terms. (Def.’s Resp. 10.)
As explained above, the Court agrees with Defendant that those provisions can be read in
harmony. Second, Defendant argues that even if Plaintiff is correct “that the
Commencement Date is fixed at January 1, 2025, the automatic termination provision in
Paragraph 3.3 applies ‘unless other agreements are reached,’” and the parties here “reached
another agreement—the Addendum.” (Id.) On this, Plaintiff is correct. The addendum is
not an “other agreement”; it is part of the Lease itself. (Pl.’s Reply 7; Doc. 14-1, ¶ 1.12.)
Third, Defendant argues that its defense of tenant-caused delay precludes Plaintiff from
obtaining declaratory relief. (Def.’s Resp. 14–15.) Here again, Plaintiff is correct. Plaintiff
seeks an interpretation of the Lease, not a declaration that the Lease in fact terminated on
May 1. (Pl.’s Reply 9–10.) So, Defendant could prevail on its defense even if Plaintiff were
granted declaratory relief.
* * *
Plaintiff repeatedly asserts that interpretation of the Lease is a question of pure law,
but Defendant has shown that there is a material factual dispute as to the parties’ contractual
intent. Judgment on the pleadings is therefore inappropriate.
Conclusion
The Court recommends that Plaintiff’s motion for declaratory judgment, which the
Court construes as a motion for judgment on the pleadings (Doc. 30), be denied.
Case 4:25-cv-00414-AMM-MSA Document 43 Filed 01/09/26 Page 12 of 13

- 13 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
This recommendation is not immediately appealable to the United States Court of
Appeals for the Ninth Circuit. The parties have 14 days to file specific written objections
with the district court. Fed. R. Civ. P. 72(b)(2). The parties have 14 days to file responses
to objections. Id. The parties may not file replies on objections absent the district court’s
permission. A failure to file timely objections may result in the waiver of de novo review.
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Dated this 9th day of January, 2026.
Case 4:25-cv-00414-AMM-MSA Document 43 Filed 01/09/26 Page 13 of 13