Art and Architecture Books of the 21st Century and 400 S. La Brea, LLC, a California limited liabilit

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UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
LOS ANGELES DIVISION
In re
ART AND ARCHITECTURE BOOKS
OF THE 21ST CENTURY,
Debtor.
Case No. 2:13-bk-14135-RK
Chapter 11
ORDER RULING ON COMPETING
FORMS OF JUDGMENT ON DEBTOR’S
REQUEST FOR RELIEF FROM
FORFEITURE AND MOTION TO
ASSUME LEASE AND RESETTING
STATUS CONFERENCE AND HEARING
ON MOTION OF GRANTING AERC
DESMOND’S TOWER, LLC FOR
IMMEDIATE PAYMENTS PURSUANT TO
11 U.S.C. § 365(d)(3)
CURRENT DATE:October 29, 2014
NEW DATE: November 12, 2014
TIME: 11:30 a.m.
PLACE: Courtroom 1675
255 E. Temple St.
Los Angeles, CA 90012
Pending before the court are competing forms of order and judgment on the
request of Debtor Art and Architecture Books of the 21st Century (“Debtor”) and its motion
to assume lease submitted by the parties after the court issued its memorandum decision
on September 18, 2014, indicating that the court will deny the request for relief from
FILED & ENTERED
OCT 27 2014
CLERK U.S. BANKRUPTCY COURT
Central District of California
BY DEPUTY CLERK	gae
Case 2:13-bk-14135-RK Doc 702 Filed 10/27/14 Entered 10/27/14 16:39:53 Desc
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forfeiture and motion to assume lease (ECF 664). On September 23, 2014, AERC
Desmond’s Tower, LLC (“Landlord”) lodged a proposed order and judgment with respect
to Debtor’s request for relief from forfeiture and motion to assume lease (ECF 670).
Debtor filed an objection to Landlord’s proposed judgment with an alternative proposed
order and judgment on September 24, 2014 (ECF 672 and 673). The Official Committee
of Unsecured Creditors (“Creditors’ Committee”) filed a joinder to the Debtor’s objection
on September 24, 2014 (ECF 674).
The court conducted a hearing on the competing forms of order and judgment on
October 14, 2014. After considering the briefing and oral arguments made by the parties
at the October 14, 2014, hearing, the court adopts the form of order and judgment
proposed by Landlord. The court does so for the following reasons. The court
determines that “expired” and “terminated” are not synonymous and agrees with the
interpretation and analysis of those statutory terms found in 11 U.S.C. § 365 by the court
in In re Morgan, 181 B.R. 579, 583-584 (Bankr. N.D. Ala. 1994)(although interpreting
lease governed by Alabama law, the analysis of the terms “expired” and “terminated” in
the lease and the statute, 11 U.S.C. § 365 is based on plain meaning of the words as
defined in general reference works, including Black’s Law Dictionary and Webster’s II
New Riverside University Dictionary). Thus, the lease will be deemed rejected upon
entry of the order denying Debtor’s motion to assume the lease based on the Ninth
Circuit’s opinion in In re Cukierman, 265 F.3d 846, 848 (9th Cir. 2001)(stating that denial
of a bankruptcy debtor’s motion to assume a lease “amounted to a rejection of the
lease”). Moreover, the court determines that Landlord’s right to immediate surrender of
the property accrues upon the deemed rejection of Debtor’s motion to assume the lease
based on the Ninth Circuit’s opinion in In re Elm Inn, Inc., 942 F.2d 630, 633-634 and n. 3
(9th Cir. 1991)(stating that “the lessor’s right to immediate surrender of the property
simultaneously accrued” when the lease was deemed rejected under 11 U.S.C. §
365(d)(4)).
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The court also continues the Chapter 11 case management and status conference
in this bankruptcy case and the further hearing on Landlord’s Motion to Compel
Immediate Payments, currently set for October 29, 2014, at 11:00 a.m. and 11:30 a.m.,
because the court is further deliberating on the immediate payments motion in that it is
still working on its written decision on the motion. These hearings are therefore
continued to November 12, 2014 at 11:30 a.m.
The proposed form of order and judgment submitted by Landlord will be approved
as that of the court.
IT IS SO ORDERED.
###
Date: October 27, 2014
Case 2:13-bk-14135-RK Doc 702 Filed 10/27/14 Entered 10/27/14 16:39:53 Desc
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