Santa Monica Property Investors Llc Vs Ong

WAGNER VS. LLOYD Case Number: CVCV21-0198602 This matter is on calendar for review regarding status of counsel. At the last hearing on May 20, 2024, both parties represented that they were trying to obtain counsel. There was also a question of whether Plaintiff was acting in her capacity as a Trustee. An appearance by both parties is required on today’s calendar. Plaintiff should be prepared to address whether the property is held by a trust or as individuals.

Case Number: 23STCV23457 Hearing Date: July 15, 2024 Dept: 61 NEIL ANENBERG vs ANTONETTE ISHAM, et al. (Commercial) TENTATIVE Plaintiff Neil Anenbergs Motion to Compel Responses to Interrogatories and Requests for Production from Defendants Scott Spicer and Antonette Isham are GRANTED. Defendant is ordered to provide responses, without objections, within 20 days of this Order. Sanctions are awarded against Defendant in the amount of $1,902.50. Plaintiff to give notice. DISCUSSION A propounding party may demand a responding party to produce documents that are in their possession, custody or control. (Code Civ. Proc., § 2031.010.) A party may likewise conduct discovery by propounding interrogatories to another party to be answered under oath. (Code Civ. Proc. § 2030.010, subd. (a).) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., § 2031.210.) The responding party must respond to the interrogatories by answering or objecting. (Code Civ. Proc. § 2030.210, subd. (a).) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., §§ 2030.290, 2031.300.) A party who fails to serve a timely response to interrogatories or a demand for inspection waives any objection to the demand. (Code Civ. Proc., §§ 2030.290, 2031.300.) Plaintiff Neil Anenberg (Plaintiff) served Form Interrogatories General, Form Interrogatories Unlawful Detainer, Special Interrogatories, and Requests for Production on Antonette Isham and Scott Spicer on March 31, 2024. (Nussbaum Decl. Exh. A.) Because this is an unlawful detainer action, responses were due within five days. (Code Civ. Proc. § 2030.260, subd. (b); 2031.260, subd. (b).) No responses were served, however, by April 29, 2024. (Nussbaum Decl. ¶¶ 23.) No opposition to the motions has been filed. Plaintiff has shown hat requests and interrogatories were served on March 31, 2024, and no responses have been timely received. The motions are GRANTED. The prevailing party on a motion to compel is generally entitled to monetary sanctions, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. §§ 2030.290, 2031.300.) Sanctions are also mandatory against a party whose failure to serve responses to requests for admission makes the motion necessary. (Code Civ. Proc. § 2033.280, subd. (c).) Plaintiff seeks $2,197.50 for each motion, representing 3.5 hours of attorney work at $475 per hour, plus a $60 filing fee (Nussbaum Decl. ¶ 4.) This appears to be a miscalculation, however, as the hours indicated multiplied by the hourly fee yield a per-motion total of $1,722.50 (3.5 hours x $475 plus a $60 filing fee). Due to the simplicity of the motions and their duplicative nature, the Court finds $1902.50 to be reasonable (3.5 hours x $475 plus $60 x4 filing fees). Sanctions are awarded against Defendants in the amount of $1,902.50.

Case Number: 20SMCV01023 Hearing Date: July 10, 2024 Dept: M CASE NAME: Klenk v. Behringer Harvard Redwood LLC, et al. CASE NO.: 20SMCV01023 MOTION: Motion for Attorneys Fees Motion to Tax Costs HEARING DATE: 7/10/2024 Legal Standard Attorneys Fees With respect to attorney fees and costs, unless they are specifically provided for by statute (e.g., CCP §§ 1032, et seq.), the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties.¿(CCP § 1021.) The prevailing party on a contract, which specifically provides for attorney fees and costs incurred to enforce the agreement, is entitled to reasonable attorney fees in addition to other costs.¿(Civ. Code § 1717(a); CCP §§ 1032, 1033.5(a)(10)(A).)¿The court, upon notice and motion by a party, shall determine the prevailing party and shall fix, as an element of the costs of suit, the reasonable attorney fees.¿(Civ. Code § 1717(a), (b).)¿Any notice of motion to claim attorney fees as an element of costs under shall be served and filed before or at the same time the memorandum of costs is served and filed; if only attorney fees are claimed as costs, the notice of motion shall be served and filed within the time specified in CRC 3.1700 for filing a memorandum of costs.¿(CRC 3.1702; Gunlock Corp. v. Walk on Water, Inc. (1993) 15 Cal.App.4th 1301, 1303, fn. 1.) It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion. [Citation.] ( Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623 624.) The fee setting inquiry in California ordinarily begins with the lodestar [method], i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. ( Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) [A] computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys fee award. ( Margolin v. Regl Planning Commn (1982) 134 Cal.App.3d 999, 1004.) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (See Serrano v. Priest (1977) 20 Cal.3d 25, 49 [discussing factors relevant to proper attorneys fees award].) Such an approach anchors the trial courts analysis to an objective determination of the value of the attorneys services, ensuring that the amount awarded is not arbitrary. ( Id . at 48, fn. 23.) The factors considered in determining the modification of the lodestar include (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. ( Mountjoy v. Bank of Am. (2016) 245 Cal.App.4th 266, 271.) In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence.¿( Premier Medical Management Systems, Inc. v. California Ins. Guaranty Assoc. (2008) 163 Cal.App.4th 550, 564.)¿General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice. ( Ibid .) Costs The prevailing party is entitled as a matter of right to recover costs for suit in any action or proceeding. (CCP § 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Prevailing party includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. (CCP § 1032 (a)(4).) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (CCP § 1033.5(c)(2).) If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. ( Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 774.) On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ibid.) Analysis Defendants GS Redwood Property LLC and Greystar California Inc. (Defendants) move for an award of attorneys fees pursuant to Civil Code section 1942.4 and Rule of Court, rule 3.1702. Defendants seek attorneys fees in the amount of at least $169,139.20, and an award of costs in the amount of $63,749.55. Defendants also move to tax Plaintiff Wendy Klenks verified memorandum of costs, filed January 31, 2024. Defendants Costs Defendants claim $63,749.55 in costs. However, Defendants failed to file a memorandum of costs as required by California Rules of Court (CRC), rule 3.1700. A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment[.] (CRC Rule 3.1700(a).) Judgment was entered on December 20, 2023. Notice was filed on January 11, 2024. Plaintiff timely filed a memorandum of costs as the prevailing party at trial on January 31, 2024. Defendants did not file or serve any memorandum of costs. The instant motion for fees and costs was not filed until February 20, 2024. Thus, the request for costs is untimely. Defendants contend that a memorandum of costs is not required for attorneys fees pursuant to CRC Rule 3.1702. Indeed, no memorandum of costs is required for attorneys fees unless such fees are fixed without the necessity of a court determination. (CRC Rule. 3.1702(e).) However, the instant request concerns costs outside of attorneys fees. Notably, Rule 3.1702 does not refer to such costs at all. Thus, Defendants were not excused from CRC Rule 3.1700s requirement that a memorandum of costs be filed within 15 days of service of notice of judgment to recover costs as a prevailing party. Since Defendants failed to comply with this mandatory provision, costs cannot be awarded. Furthermore, the Court would disallow the costs claimed for inspection and testing. (Ward Decl., Ex. E.) Such costs are not expressly allowed by statute. (CCP § 1033.5(b)(1)-(2), (c)(2).) If considered on the merits, the Court would strike the request for $23,916.40 and for $8,635.00 related to testing/inspection of the property. Accordingly, the motion is DENIED as to the cost request. Attorneys Fees Section 194 2.4(b)(2) provides for recovery of reasonable attorneys fees to the prevailing party in a suit between landlord and tenant regarding untenable conditions. The trial court has discretion to determine which party, if any, is the prevailing party on a practical level. ( Galan v. Wolfriver Holding Corp. , (2000) 80 Cal. App. 4th 1124, 1128.) A prevailing defendant may recover only reasonable attorney fees incurred in [its] defense of the action by [the plaintiff]. ( Hill v. Affirmed Housing Group (2014) 226 Cal.App.4th 1192, 1197.) To the extent [a prevailing defendants] shared counsel engaged in litigation activity on behalf of [a codefendant] for which fees are not recoverable, the [trial] court has broad discretion to apportion fees. ( Id .) A court may apportion fees even where the issues are connected, related or intertwined. ( Id .) And although time-keeping and billing procedures may make a requested segregation difficult, they do not, without more, make it impossible. ( Id .) Attorneys fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed. ( Dane-Elec Corp., USA v. Bodokh (2019) 35 Cal.App.5th 761, 771.) Thus, [a]pportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorneys time into compensable and noncompensable units. ( Id . at 771-72.) Defendants prevailed on the section 194 2.4 claim and other related habitability issues. On November 28, 2023, the Court granted Defendants motion for judgment of nonsuit on the section 1942.4 claim. The Court found that Plaintiff failed to submit any evidence on the elements related to an inspection, notice of abatement, and delay without good cause. (See Civ. Code §1942.4(a)(2), (3).) Later, on November 30, 2023, the jury returned its verdict in favor of Defendants on the habitability claim, the quiet enjoyment claim, and the nuisance claim, and in favor of Plaintiff on the negligence claim. While the statutory claim was not presented to the jury, the jury considered and rejected the related common law habitability claims. Plaintiff decidedly lost on the habitability issues, including the statutory claim which would have entitled her to attorneys fees. Despite losing on the majority of her claims, and recovering only a small percentage of damages actually requested, Plaintiff did prevail at trial with a recovery of $58,000.00 on her negligence claim. However, on a practical level, Defendants are the prevailing party as to the habitability claims, and Defendants may recover their attorneys fees. In their opposition, Plaintiff argued that all the claims are intertwined and that all of counsels work related to all of the claims. As such, Plaintiff argues that apportionment of fees between the claims is appropriate. Plaintiff requests that the Court reduce the fee award by 50%. Here, Defendants submitted detailed time records for the legal work performed. Defendants attorneys billed 810.4 hours at $237 per hour for a total of $169,139.20. (Ward Decl., Ex. D, G.) The Court finds the reduced hourly rate reasonable in light of counsels experience, education and expertise. The Court will apportion the fees to reflect the mixed success of the Defendants and the interrelated nature of the causes of action. In light of the entirety of the record, and using the lodestar method, the Court finds that a reasonable fee in this instance would be $111,631.87, which represents 534.86 hours of attorney time at the approved rate. Accordingly, the motion is GRANTED in the amount of $111,631.87. Motion to Tax Plaintiffs Costs Defendants move to tax Plaintiff Wendy Klenks verified memorandum of costs, filed on January 31, 2024. While Defendants prevailed on the habitability claim, Plaintiff should still be considered the prevailing party at trial. On December 20, 2023, the Court entered judgment against Defendants Greystar California, Inc. and GS Redwood Properties, LLC, jointly and severally, in the sum of $58,000, in favor of Plaintiff. Thus, Plaintiff is entitled to allowable costs under Code of Civil Procedure section 1033.5. Defendants request the Court tax from Plaintiffs Memorandum of Costs the following items: Item 1 - Filing and motions fees of $696.54 Item 4 - Deposition costs $3,567.45 Item 5 - Service of process $142 Item 11 - Court reporter fees $3,387.50 As to each item, Defendants argue that the verified costs are unreasonable because Plaintiff does not provide any detail for the Court to determine if Plaintiff is seeking proper costs. However, the cited costs are expressly allowed by statute. (CCP § 1033.5(a)(1), (3), (4), (11).) Plaintiff provided a verified memorandum of costs, confirming that the sought costs are correct and were necessarily incurred in the case. Therefore, th e burden is on Defendants to demonstrate that such costs were not reasonable or necessary. Defendants do not meet this burden by merely suggesting that Plaintiff must present further details beyond the verified memorandum. Accordingly, the motion is DENIED.

Case Number: 21CHCV00247 Hearing Date: July 12, 2024 Dept: F47 Dept. F47 Date: 7/12/24 Case #21CHCV00247 MOTION FOR ATTORNEY FEES Motion filed on 3/13/24. MOVING PARTY: Plaintiff Jeffrey Harris and Austin Harris, Co-Trustees of the Harris Family Trust RESPONDING PARTY: Defendants Helene Stahl and Extensions Plus, Inc. NOTICE: ok RELIEF REQUESTED : An order awarding Plaintiff attorneys fees and costs in the total amount of $73,118.75 comprised of $63,643.75 in attorney fees, $7,575.00 in expert fees and $1,900 in fees for the instant motion. RULING : The motion is granted, in part, and denied, in part, as set forth below. SUMMARY OF FACTS & PROCEDURAL HISTORY This action arose out of the alleged breach of a commercial lease and guaranty of the lease. Plaintiff Jeffrey Harris and Austin Harris, Co-Trustees of the Harris Family Trust (Plaintiff) were the landlord and Defendant Extensions Plus (Extensions Plus) was the tenant and Defendant Helene Stahl (Stahl) was the guarantor (collectively, Defendants). Possession of the premises was not at issue as the tenant no longer occupied the premises. Plaintiffs contended that the commercial tenant made unpermitted alterations causing substantial damages to the property and then abandoned the premises with past due rent owing to set up their business in a new location. On 3/30/21, Plaintiffs filed this action for: (1) Breach of Contract, (2) Breach of Implied Covenant of Good Faith and Fair Dealing and (3) Common Count. On 10/22/21, Defendants filed answers to the complaint. After a court trial, on 1/30/24, the Court entered judgment in favor of Plaintiff and against Defendants on Plaintiffs complaint. ( See 1/30/24 Judgment). Plaintiff was awarded damages in the amount of $203,387.50, prejudgment interest in the amount of $50,036.50 for a total award of $253,424.00. Id . On 3/13/24, Plaintiff filed and served the instant motion seeking an order awarding Plaintiff attorneys fees and costs in the total amount of $73,118.75 comprised of $63,643.75 in attorney fees, $7,575.00 in expert fees and $1,900 in fees for the instant motion. Defendants have opposed the motion and Plaintiff has filed a reply to the opposition. ANALYSIS Attorneys fees are recoverable as an item of costs when authorized by contract, statute or law. See CCP 1033.5(a)(10). Civil Code 1717 provides, in relevant part: (a) In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract , whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. Where a contract provides for attorney's fees, as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract. Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit. Attorney's fees provided for by this section shall not be subject to waiver by the parties to any contract which is entered into after the effective date of this section. Any provision in any such contract which provides for a waiver of attorney's fees is void. (b)(1) The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section , whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section . The lease agreement/contract which provided the basis for this action contained the following attorney fee provision: Attorney's Fees . If any Party or Broker brings an action or proceeding involving the Premises whether founded in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys' fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding is pursued to decision or judgment. The term, "Prevailing Party" shall include, without limitation, a Party or Broker who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the other Party or Broker of its claim or defense. The attorneys' fees award shall not be computed in accordance with any court fee schedule but shall be such as to fully reimburse all attorneys' fees reasonably incurred. In addition, Lessor shall be entitled to reasonable attorneys' fees, costs and expenses incurred in the preparation and service of notices of Default and consultations in connection therewith, whether or not a legal action is subsequently commenced in connection with such Default or resulting Breach ($200 is a reasonable minimum per occurrence for such services and consultation). ( See Complaint, Ex.A; Cordero-Sacks Decl., Ex.1). Similarly, the Guaranty provides: In the event any action be brought by said Lessor against Guarantors hereunder to enforce the obligation of Guarantors hereunder, the unsuccessful party in such action shall pay to the prevailing party therein a reasonable attorneys fee. The attorneys fee award shall not be computed in accordance with any court fee schedule, but shall be such as to full reimburse all attorneys fees reasonably incurred. Id . Based on the 1/30/24 Judgment, Plaintiff is the prevailing party in this action. As such, Plaintiff is entitled to recover its reasonable attorneys fees, not unlimited legal fees as claimed in the motion. ( See Motion, p.2:4). The amount of attorneys fees to be awarded is left to the sound discretion of the trial court. PLCM Group (2000) 22 C4th 1084, 1095-1096, internal citations omitted. Further, it has been held that experienced trial judges are the best judge of the value of professional services rendered in their courts and their judgment will only be disturbed on appeal if it is clearly wrong and an abuse of discretion. Id . A trial court may make its own determination of the value of the services without expert testimony. Id . In calculating a reasonably attorney fee award, the trial court begins with the lodestar (the number of hours reasonably spent multiplied by the reasonable hourly rate). Id . The reasonable hourly rate is the rate prevailing in the community for similar work. Id . Here, the Court finds that the hourly rates ranging from $375/hour for associate work and $375-$475/hour for principal work to be reasonable. However, the Court finds that the amount of time claimed to have been spent is excessive. The billing entries are extremely vague. ( See Cordero-Sacks Decl., Ex.2). For example, many of the entries are merely titled Draft without any indication of what was being drafted. Id . Other examples of vague billing entries are those titled Reduced Hourly without any indication of what task was performed at the reduced rate. Id . As such, the Court finds that a 25% reduction of the attorneys fees requested is warranted. The Court finds that Plaintiff has failed to support its request for an award of expert fees. In the motion, Plaintiff merely argues that Plaintiff is entitled to recover reasonable attorneys fees and costs as provided for in the Commercial Lease and Guaranty, which includes expert witness fees. (emphasis in original) ( See Motion, p.5:28-p.6:3). An award of contractual attorneys fees may not include expenses expressly denominated by statute as nonrecoverable cost items, such as expert fees not ordered by the court, postage, telephone and copying charges. See Carwash of America-PO LLC (2002) 97 CA4th 540, 544; Hsu (2005) 126 CA4th 1330, 1340-1342 (disapproving Bussey (1990) 225 CA3d 1162, 1166); Jones (2005) 127 CA4th 542, 550-551. It has been held by some courts that a contract provision which allows the prevailing party to recover all necessary expenses, or similar broad language, may permit an award of expert fees not ordered by the court. Here, it cannot be argued that the attorneys fee provisions in the lease and/or guaranty are so broad as to cover expert fees. ( See Complaint, Ex.A; Cordero-Sacks Decl., Ex.1). The only reference to recovering costs and expenses in the attorneys fee provision contained in the lease relates to costs and expenses incurred in the preparation and service of notices of Default and consultations in connection therewith, whether or not a legal action is subsequently commenced in connection with such Default or resulting Breach ($200 is a reasonable minimum per occurrence for such services and consultation). CONCLUSION Based on the foregoing, Plaintiff is awarded $49,157.81 in attorneys fees (($63,643.75 + $1,900.00) = $65,543.75 25% ($16,385.94) = $49,157.81). Plaintiffs request for expert fees is denied.

Case Number: 24STCV10041 Hearing Date: July 12, 2024 Dept: 54 Superior Court of California County of Los Angeles Spring Towers, LLC, Plaintiff, Case No.: 24STCV10041 vs. Tentative Ruling Jacob Carlson, Defendant. Hearing Date: July 12, 2024 Department 54, Judge Maurice Leiter Motion to Quash Service of Summons Moving Party : Defendant Jacob Carlson Responding Party : Plaintiff Spring Towers, LLC T/R : THE MOTION IS DENIED. PLAINTIFF TO GIVE NOTICE. DEFENDANT TO FILE AN ANSWER WITHIN 5 DAYS. If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. The Court considers the moving papers and opposition. BACKGROUND Plaintiff Spring Towers, LLC filed this unlawful detainer action against Defendant Jacob Carlson on April 22, 2024. On May 28, 2024, the Court granted Plaintiffs application to serve the summons and complaint by posting it at the subject premises and mailing it to the same address. Plaintiff later attested that it effected service by posting on June 5, 2024. On June 18, 2024, Defendant filed a motion to quash service, claiming Plaintiff failed to serve the summons and complaint in the manner required by the Code of Civil Procedure. ANALYSIS A court lacks jurisdiction over a party if there has not been proper service of process. ( Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.) Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction. ( Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) The filing of a proof of service creates a rebuttable presumption that the service was proper, but only if the proof of service satisfies relevant statutory requirements. ( Id. , at 1441-1442.) A summons in an action for unlawful detainer of real property may be served by posting if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served ... other than [by] publication and that certain other requirements are satisfied. (Code Civ. Proc., § 415.45(a).) The Court granted Plaintiffs application to serve by posting. The Court found that Plaintiff had shown reasonable diligence in attempting to serve Defendant by other means. If publication is ordered, [t]he court shall order the summons to be posted on the premises in a manner most likely to give actual notice to the party to be served and direct that a copy of the summons and of the complaint be forthwith mailed by certified mail to such party at his last known address. ( Id. , subd. (b).) Defendant concedes he received the summons and complaint in the mail, but he argues Plaintiff did not post it on the premises as required. Defendant declares: I never found a copy of the summons and complaint at the premises. No[ ]one has appeared at my home in an attempt to serve me with anything. (Carlson Decl., 1:11-13.) Plaintiffs proof of service, accompanied by the declaration of a registered process server, establishes a presumption that service was properly effected. (Evid. Code § 647; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.) Defendant cannot rebut this presumption by denying knowledge of service; he must offer some affirmative evidence that service did not take place in the manner Plaintiff claims. (See Louis & Diederich, Inc. v. Cambridge European Imports, Inc. (1987) 189 Cal. App. 3d 1574, 1591 [no finding can be predicated on the absence of evidence].) Defendant has not rebutted the sworn statement by Plaintiffs process server in the proof of service. Defendants motion is denied.

Case Number: BC722308 Hearing Date: July 12, 2024 Dept: 61 NIKE USA INC VS 5860 WEST JEFFERSON LLC ET AL TENTATIVE Plaintiff Nike USA, Inc.s Motion for New Trial is DENIED. Defendants to provide notice. DISCUSSION The authority of a trial court to grant a new trial is established and circumscribed by statute. Section 657 sets out seven grounds for such a motion: (1) [i]rregularity in the proceedings; (2) [m]isconduct of the jury; (3) [a]ccident or surprise; (4) [n]ewly discovered evidence; (5) [e]xcessive or inadequate damages; (6) [i]nsufficiency of the evidence; and (7) [e]rror in law. [Citation.] (Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1227.) When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated. (Code Civ. Proc., § 657.) Plaintiff, Cross-Defendant, and Cross-Complainant Nike USA, Inc. (Nike) moves for a new trial on three of the above grounds: irregularity in the proceedings, insufficiency of the evidence, and errors of law. Nikes argument based on procedural irregularity is based on the courts purported lack of consideration of its objections to its statement of decision. (Motion at pp. 1213.) Nike argues for insufficiency of the evidence, based on purportedly contradictory findings that neither Nike nor Defendants and Cross-Complainants 5860 West Jefferson, LLC, 5860 West Jefferson I, LLC, and Samitaur Constructs (Defendants) had prevailed on their respective claims for damages based on construction delay, and on other issues. (Motion at pp. 1320.) Nike finally argues that the statement of decision contains errors of law in the application of the burden of proof under the lease agreement, and fails to adequately set forth any declaration of the parties rights under the lease. (Motion at pp. 2025.) Defendants in opposition argue that the present motion exceeds the page limit articulated in California Rules of Court (CRC) Rule 3.1113. (Opposition at p. 9.) They further contend that the present motions memorandum, declaration, and supporting evidence were filed and served tardily. (Opposition at pp. 89.) Defendant argues that Nikes objections to the statement of decision were late, and that the court in any event had notice of Nikes objections from its earlier-filed Request for Statement of Decision. (Opposition at pp. 1011.) Defendants argue that the courts statement of decision was based on substantial evidence and contains no errors of law. (Opposition at pp. 1118.) Plaintiffs memorandum exceeds the page limits prescribed by CRC Rule 3.1113. That rule states that no opening or responding memorandum except in summary judgment motions may exceed 15 pages, excluding the caption page, the notice of motion and motion, exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service. (CRC Rule 3.1113, subd. (d).) Excluding these last matters, Plaintiffs memorandum here extends to 21 pages. A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper. (CRC Rule 3.1113, subd. (g).) The memorandum and supporting materials are also actually late. Nikes notice of intent to move for new trial was filed on May 28, 2024. Per Code of Civil Procedure § 659a, the party seeking new trial shall serve upon all other parties and file any brief and accompanying documents, including affidavits in support of the motion within 10 days of filing the notice [of intention to move for a new trial]. (Code Civ. Proc. § 659a.) Although Nike filed the memorandum and supporting declaration by the June 7, 2024 deadline, it did not serve them until June 8 (Evans Decl. ¶ 8), and did not file or serve the supporting evidence until June 10. These timelines are not jurisdictional in the fundamental sense (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 342), and the statute provides courts the power, for good cause shown by affidavit or by written stipulation of the parties to extend the period for filing and serving materials for an additional period not to exceed 10 days. (Code Civ. Proc. § 659a.) A court may retroactively extend the deadline for filing to the full 30-day period even if the party did not seek an extension in advance. (Kabran, supra, 2 Cal.5th at p. 342.) Here, in the absence of prejudice shown by Defendants arising from the tardiness of service of the memorandum and supporting evidence, the court will exercise its discretion to assess the motion on its merits. Nike argues that the entry of judgment on the statement of decision evidenced irregularity in the proceedings, because the court entered judgment on May 14, 2024, in the erroneous belief that Nikes objections had not been timely filed, when in fact Nike had until May 16, 2024, to file such objections. Nikes argument as to the timing of the objections is persuasive. The proposed statement of decision not captioned proposed, but identified as such in its opening paragraph was filed and served on April 26, 2024. Per CRC Rule 3.1590, subd. (g), [a]ny party may, within 15 days after the proposed statement of decision and judgment have been served, serve and file objections to the proposed statement of decision or judgment. 15 days after service of the statement of decision would have been May 11, a Saturday, rendering the deadline for filing objections Monday, May 13, 2024. Yet because the statement of decision was served by mail, the time for filing of objections was extended by five calendar days, as provided in Code of Civil Procedure § 1013, subd. (a). Thus the deadline by which to serve objections was May 16, 2024. Nikes objections were served on May 14, 2024, the same day the court entered judgment on the proposed statement of decision in the belief that no objections had been timely filed. (See 5/14/2024 Minute Order.) However, Nike has suffered no prejudice resulting from the claimed irregularity. In granting a new trial based on judicial error, [p]rejudice is required . . . and there is no discretion to grant a new trial for harmless error. (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1161.) Before Nike filed its objections to the statement of decision, it filed on May 8, 2024, a Request for Statement of Decision, taking issue with what Nike termed procedural ambiguities in the statement of decision and itemizing 87 issues, questions, and arguments for the court to consider. The court considered these issues in its order dated May 14, 2024, and found that its proposed statement of decision sufficiently addresses the evidence and legal and factual issues raised by Nike. (5/14/2024 Minute Order.) The issues raised in Nikes request for statement of decision parallel the objections it later offered, and were considered by the court. This is thus unlike the case in Raville v. Singh (1994) 25 Cal.App.4th 1127, 1130, cited by Nike, in which a different judge signed off on a statement of decision after the judge who had authored the tentative version had died. The same judge here held trial, prepared a proposed statement of decision, reviewed Nikes arguments, and entered judgment. As to insufficiency of the evidence, Nike contends that the courts decision does not support its conclusion that the premises were substantially complete on July 28, 2018. (Motion at pp. 1415.) However, the statement of decision notes that the City issued a temporary certificate of occupancy on July 28, 2018. (Statement of Decision (SOD) at p. 6.) The court noted that it was necessary to determine whether the BSC [base shell and core] or tenant improvements were completed to the extent that only punchlist items remained and whether any remaining uncompleted items adversely affected Nikes use of the property. (Ibid.) The court cited the myriad photos of the construction, and determined no items remained to be addressed which adversely affected Nikes occupancy. (Ibid.) The courts finding was supported by substantial evidence, as noted by Defendants in opposition. (Opposition at p.13.) Nike argues that this courts findings that neither Nike nor Defendants prevailed on their breach of contract claims as to who caused the delay are inherently contradictory, because one party must have caused the delay. (Motion at p. 16.) Yet this argument fails to reckon with the applicable burden of proof. The parties each bore the burden to prove their claims by a preponderance of the evidence, i.e. to present evidence, which when weighed with contrary evidence, has more convincing force and the greater probability of truth. (City of Long Beach v. Workers' Comp. Appeals Bd. (2005) 126 Cal.App.4th 298, 314 .) But if two parties make conflicting showings of culpability for the same event, and both showings are equally persuasive, then neither has shown that theirs has the greater probability of truth, and neither has met their burden. The courts statement of decision on the causes of the delay addresses all material disputes and is supported by substantial evidence. Although Nike argues that the court was required to make findings as to the cause of each period of delay, it presents no authority holding that such detail is required. (Motion at pp. 1618.) The applicable authority suggests otherwise: A trial court rendering a statement of decision under Code of Civil Procedure section 632 is required only to state ultimate rather than evidentiary facts. A trial court is not required to make findings with regard to detailed evidentiary facts or to make minute findings as to individual items of evidence. Only where a trial court fails to make findings as to a material issue which would fairly disclose the determination by the trial court would reversible error result. Even though a court fails to make a finding on a particular matter, if the judgment is otherwise supported, the omission is harmless error unless the evidence is sufficient to sustain a finding in favor of the complaining party which would have the effect of countervailing or destroying other findings. A failure to find on an immaterial issue is not error. [Citation.] In issuing a statement of decision, the trial court need not address each question listed in a party's request. All that is required is an explanation of the factual and legal basis for the court's decision regarding such principal controverted issues at trial as are listed in the request. (Ribakoff v. City of Long Beach (2018) 27 Cal.App.5th 150, 163.) The statement of decision meets this standard. Nike further argues that the courts finding as to the tardiness of its request to rent parking spaces under the lease was erroneous. This argument is as follows: The lease provides that Nike could exercise an option to certain parking spaces by the commencement of the eighteenth (18th) month of the Lease term following the Commencement Date. (Motion Exh. 81, Addendum ¶ 54.1.) Nike cites evidence that it provided notice of its intent to rent 123 monthly parking passes in an email dated January 23, 2020. (Motion Exh. T.) And because Nike had 18 months to request the parking until February 1, 2020, given a commencement date of July 28, 2018 Nike argues that no substantial evidence supports the courts finding that Nikes request was untimely. (Motion at pp. 1819.) The lease, however, did not give Nike until the end of the eighteenth (18th) month of the Lease term following the Commencement Date to seek the parking spaces. The lease instead set the deadline at the commencement of the eighteenth month i.e., until January 1, 2020. Nike thus did not have until February 1, 2020,to rent the parking spaces, and by this reckoning, Nikes January 23, 2020 request was untimely, and the courts reasoning stands. Nikes argument as to the breach of warranty claim is also unpersuasive, as the courts findings as to the condition of the roof was supported by substantial evidence. The court found that the parties were aware of the susceptibility of the roof to leaks, yet requested the type of roof at issue anyway. (SOD at p. 7.) The court found no evidence of structural defects, and that the Defendants had maintained and addressed the leaks that Nike identified. (Ibid.) Nikes arguments as to errors of law, meanwhile, are similarly unavailing. Nike argues that the court misapplied the burden of proof, because under the lease, any delay was attributed to Defendants unless proven to be caused by Nike. (Motion at pp. 2025.) Yet Nike identifies no provision of the lease attributing delayed substantial completion to Defendants by default. It identifies a provision of an attached work letter stating that the date of substantial completion shall be deemed to be . . . the date on which the Tenant Improvements would have been Substantially completed if no such a . . . Delay had occurred, provided that the delay was caused by the lessee (Nike). (Motion at pp. 2021, citing Motion Exh. 81, at pp. 6465.) This provision does not purport to create a presumption of either partys default for the cause of delay, or to affect the ordinary burden of proof applicable to a breach of contract action. Nike further identifies provisions indicating that time was of the essence, and setting a date for completion of construction, but once more, these provisions do not purport to assign a presumption of fault for the delay to Defendants. (Motion at p. 22, citing Motion Exh. 81 at p. 65.) Finally, Nike argues that the statement of decision rendered judgment in favor of Defendants on their declaratory relief cause of action, without offering the actual declaration of rights requested, or a contrary declaration to what Nike requested in its Complaint. (Motion at p. 25.) Nike relies on the case Kroff v. Kroff (1954) 127 Cal.App.2d 404, in which the court stated: A dispute existed as to the meaning of a document and the plaintiff was entitled to a judicial declaration of her rights. It was the duty of the court to set forth the meaning and effect of the clause in question. Here the court merely adjudged that plaintiff take nothing by her said cause of action, and that defendant have judgment against plaintiff. (Id. at p. 405.) The present case is distinguishable, as the court here did not merely adjudge that plaintiff take nothing and defendants prevail, but offered a statement of decision explaining the facts of the case and its reasoning. Nike sought a declaration that the property was not substantially complete as of the date of the complaint, that its obligation to pay rent had not begun, that Plaintiff was entitled to immediate correction and completion of all incomplete or defective aspects of the property, and it is entitled to free rent for a number of days determined by the court. (FAC ¶ 57.) Yet these prayers for relief were addressed by the courts determination that the property was substantially complete as of July 28, 2018. (SOD at p. 6.) The motion is therefore DENIED.

Case Number: 24NNCV01081 Hearing Date: July 10, 2024 Dept: NCB Superior Court of California County of Los Angeles North Central District Department B 330 north brand, inc. , Plaintiff, v. johnhart corp ., Defendant. Case No.: 24NNCV01081 Hearing Date: July 10, 2024 (cont. from July 5, 2024) [ TENTATIVE] order RE: motion for summary judgment or, in the alternative, summary adjudication of issues BACKGROUND A. Allegations Plaintiff 330 North Brand, Inc. (Plaintiff) filed an unlawful detainer complaint against Defendant JohnHart Corp. (Defendant). The property at issue is located at 330 North Brand Blvd., Suite 130, Glendale, CA 91203. Plaintiff is the owner of the premises. On December 19, 2011, Plaintiff as landlord and Defendant as tenant entered into a written Office Lease (as amended by a First Amendment to Office Lease dated January 3, 2017, a Second Amendment to Office Lease dated May 31, 2017, a Third Amendment to Office Lease dated February 15, 2018, and a Fourth Amendment to Office Lease dated August 18, 2020; hereinafter, Lease) whereby Defendant leased the premises. Plaintiff alleges that additional space within the building containing the premises was also leased by Defendant under the Lease, but possession of such space has been resolved and is not at issue in this matter. Plaintiff alleges that the Lease expired on December 31, 2020 and that all times thereafter, Defendant remained in possession pursuant to Article 15 of the Lease (the holdover provision), except that the parties agreed that Defendant would not pay 200% of the rent as (a) the time period was in the midst of Covid and (b) the parties were attempting to negotiate an extension of the Lease. Plaintiff alleges that the Lease expired on December 31, 2020 and the Lease became a month-to-month holdover tenancy. Plaintiff alleges that on October 8, 2023, Plaintiff served a 30-Day Notice To Terminate Tenancy (the Notice) on Defendant in accordance with the provisions of the Lease by forwarding same according to the notice provisions of the Lease to Defendant at the Premises via FedEx. FedEx confirmed delivery as of October 11, 2023. Plaintiff alleges that the Notice required Defendant to quit the premises within 30 days after service of the Notice and also set forth Plaintiff's election to declare a forfeiture of the Lease. Plaintiff alleges that Defendant is still in possession of the premises despite more than 30 days passing since service of the Notice (the expiration of the 30-day period was November 10, 2023). On May 23, 2024, the default of all unnamed occupants in possession was entered. B. Motion on Calendar On May 23, 2024, Plaintiff filed a motion for summary judgment in its favor against Defendant in this case for possession of the premises and for damages in the amount of $61,090.70 (190 days at $321.53 per day for each day that Defendant remains at the premises from January 12, 2024 until judgment). Alternatively, Plaintiff seeks summary adjudication on the following issue: · Issue 1: The undisputed facts demonstrate that Plaintiff is entitled to an order summarily adjudicating the cause of action for unlawful detainer and granting possession of the premises because Defendants occupancy of the premises has been month-to-month for years. Plaintiff has served a 30-day notice to terminate the lease and Defendant failed to vacate the property. On July 3, 2024, Defendant filed an opposition brief. The Court held a hearing on the matter on July 5, 2024. The Court was informed that an opposition was filed and continued the hearing to July 10, 2024 in order to give Plaintiff an opportunity to file a reply brief by July 8, 2024. On July 8, 2024, Plaintiff filed a reply brief. DISCUSSION CCP § 1161 defines unlawful detainer in relevant part as follows: 1. When the tenant continues in possession, in person or by subtenant, of the property, or any part thereof, after the expiration of the term for which it is let to the tenant; provided the expiration is of a nondefault nature however brought about without the permission of the landlord, or the successor in estate of the landlord, if applicable; including the case where the person to be removed became the occupant of the premises as a servant, employee, agent, or licensee and the relation of master and servant, or employer and employee, or principal and agent, or licensor and licensee, has been lawfully terminated or the time fixed for occupancy by the agreement between the parties has expired; but nothing in this subdivision shall be construed as preventing the removal of the occupant in any other lawful manner; but in case of a tenancy at will, it shall first be terminated by notice, as prescribed in the Civil Code. (CCP § 1161(1).) Plaintiff moves for summary judgment in its favor against Defendant. In support of its motion, Plaintiff provides the declaration of Spencer Wilson, the Vice President of Transwestern, the agent and property manager for Plaintiff. (Wilson Decl., ¶1.) Mr. Wilson states that on December 19, 2011, Plaintiff and Defendant entered into a written Office Lease for the premises, which was subsequently amended 4 times (Lease). ( Id. , ¶3, Ex. A [Lease].) He states that all relevant times, Plaintiff has owned the premises. ( Id. , ¶4.) He states that Defendant has been month-to-month since the Lease term expired on December 31, 2020 as shown in paragraph 4 of the last amendment to the Lease. ( Id. , ¶5.) He states that because the parties were unable to agree upon the terms of a new lease or for an extension of the Lease, Plaintiff sought to take back the space after entering into a new lease for the premises with a new tenant and that new lease provides for a rental amount of $9,796.00 per month. ( Id. , ¶6.) Mr. Wilson states that after letters were sent back and forth with Defendant concerning the need for the return of the premises, it became clear that Defendant was not going to vacate as requested. ( Id. , ¶7.) He states that on December 8, 2023, he served a 30-Day Notice to Terminate Tenancy (Notice) on Defendant in accordance with the provisions of the Lease by forwarding the same according to the notice provision of the Lease to Defendant at the premises via FedEx (delivery confirmed as of December 11, 2023). ( Id .) He states that the Notice required Defendant to quit the premises within 30 days after service of the Notice. ( Id. , Ex. B [Notice with FedEx confirmation].) Mr. Wilson states that the action was not filed sooner than April 2024 because Plaintiff was trying to find a different space for the new tenant so that Defendant could possibly remain in the premises if the parties could reach an agreement on the terms; however, that did not happen. ( Id. , ¶8.) He states that while the parties have been negotiating an extension, they never reached an agreement on terms, there is no writing signed by the parties extending the Lease and no new lease between the parties for the premises. ( Id. , ¶10.) He states that Defendant has simply claimed to have some sort of agreement without any approval from Plaintiff. ( Id. ) Mr. Wilson states that Defendant is still in possession of the premises despite more than 30 days passing since service of the Notice and Plaintiff has not accepted any rent for the premises since the Notice was served. ( Id. , ¶9.) Mr. Wilson states that the rent called for in the new lease ($9,796.00 per month) is the reasonable rental value of the premises, as that is the most recent arms-length transaction for this exact space and based upon that monthly rent, the daily value of the premises is $322.06 (calculated by taking the monthly rent of $9,796.00 and multiplying it by 12 months and then dividing that by 365 days). ( Id. ) Mr. Wilson states, however, because Plaintiff asked for $321.53 in the complaint, Plaintiff will use that lower amount. ( Id. ) Here, Plaintiff has established its burden establishing that Defendant has continued in possession of the premises after the Lease expired. Paragraph 4 of the Fourth Amendment of the Lease states that the term respecting Suite 130 shall expire on December 31, 2020. After the tenancy became a holdover month-to-month tenancy, Plaintiff served the Notice on December 8, 2023 (confirmed delivery by FedEx on December 11, 2023). However, as stated by Mr. Wilson in his declaration, Defendant did not vacate the premises within 30 days and the parties were unable to agree upon a Lease extension or a new lease. Thus, Plaintiff has established the elements of an unlawful detainer claim for the real property at issue. As such, the burden shifts to Defendant to raise a triable issue of material fact. Defendant argues that Plaintiff is not entitled to summary judgment solely because the Lease expired. Defendant argues that it has partially performed the terms of a fully negotiated and agreed-to Fifth Amendment. ( Schubert v. Lowe (1924) 193 Cal. 291, 295 [While the defendant was not entitled to a judgment in the present proceedings decreeing specific performance of the agreement to execute the lease, nevertheless the part performance of such an agreement can be interposed as an equitable defense to the plaintiff's attempt to wrest from him the possession of the premises by the summary proceedings in unlawful detainer.]; Pearsall v. Henry (1908) 153 Cal. 314, 318 [The question whether there has been a part performance of the oral agreement is necessarily one of fact to be determined by the trial court.].) [1] In support of the opposition, Defendant provides the declaration of Harout Keuroghlian, the owner of Defendant, and a copy of the unexecuted Fifth Amendment. Mr. Keuroghlian states that as of September 2021, Defendant was responsible for leasing: (a) Suite 130 (lease expired December 31, 2020), which was approximately 2,930 square feet; (b) Suite 660 (lease expired January 31, 2022), which was approximately 1,662 square feet; and (c) Suite 701 (lease to expire on August 31, 2023), which was approximately 2,241 square feet. (Keuroghlian Decl., ¶5.) He states that in September 2021, Anneke Greco, the Executive Vice President of Jones Lang LaSalle, the authorized agent of Plaintiff, proposed that Defendant surrender Suites 660 and 701 early as a part of negotiations for an extension of Suite 130. ( Id. , ¶6.) He states that in reliance on the terms being negotiated, Defendant voluntarily and prematurely surrendered possession of the Giveback Premises (Suites 660 and 701, set to expire 4 months and 2 years later, respectively) and Defendant ceased paying rent for those spaces. ( Id., ¶7.) Mr. Keuroghlian states that on March 22, 2022, Ms. Greco sent Defendant a proposed Fifth Amendment to the Lease back dated to January 2022, honoring most of the mutually agreeable terms during the previous Suite 130 negotiations. ( Id. , ¶8.) On October 24, 2022, Ms. Greco sent a revised Fifth Amendment, which contained all of the terms needed for the Lease but had one mistake; Mr. Keuroghlian stated that he informed Ms. Greco that he was willing to execute the extension. ( Id. , ¶9, Ex. 1 [Fifth Amendment].) He states that in November and December 2022, Defendant continuously attempted to contact Plaintiff to finalize execution of the new Lease for Suite 130 and that Ms. Greco responded on December 21, 2022, stating that she needed an accounting reconciliation. ( Id. , ¶¶10-11.) He states that he attempted to contact Plaintiff until July 2023 and continued to pay monthly base rent which Plaintiff routinely accepted, believing that he was performing under the Fifth Amendment. ( Id. , ¶11.) Mr. Keuroghlian states that on July 21, 2023 (nearly a year later), Ms. Grecos associate responded to Defendants July 28, 2022 correspondence regarding reconciliations. ( Id. , ¶12.) On July 25, 2023, Defendant sent correspondent to Ms. Greco requesting an update on the Lease execution. ( Id. , ¶13.) He states that Ms. Greco responded on July 26, 2023, stating that Plaintiff leased Suite 130 to another tenant who agreed to a longer-term period. ( Id. , ¶14.) On September 12, 2023, Defendant received a Notice of Termination; on November 29, 2023, Plaintiff filed the complaint; and on December 14, 2023, Plaintiff issued the December 8, 2023 Notice. ( Id. , ¶¶15-17.) While Defendant argues that Plaintiff is not entitled to summary judgment because Defendant partially performed under the Fifth Amendment by surrendering the Give Back Space and paying rent, Defendant has failed to present evidence in support of its burden in opposition. At most, Defendant provides Mr. Keuroghlians declaration and the unsigned Fifth Amendment, but Defendant fails to provide any documentary evidence of the parties communications (emails, letters, etc.) and fails to state what amount of rent was paidwhether it was the rent under the last lease amendment or the Fifth Amendmentor provide documentary evidence through canceled checks or bank statements of the rental amounts paid. It is Defendants shifted burden to provide opposing evidence of a triable issue of material fact and Defendant has failed to do so here. In addition, as pointed out by Plaintiff in the reply brief, Defendant cannot rely on an oral modification, as the Lease at section 30.8 states that the terms cannot be modified orally. ( Conley v. Matthes (1997) 56 Cal.App.4th 1453, 1465 [ Oral modifications of written agreements are precluded only if the written agreement provides for written modification.]; Mot., Ex. A [December 19, 2011 Office Lease at § 30.8].) [2] Plaintiff preemptively raised this in the motion papers on page 5 and again raised this in the reply brief, but Defendant did not address the integrated nature of the Lease (and its subsequent amendments) in the opposition brief. The cases cited by Defendant also fail to include a factually similar situation as this case. As such, the Court finds that Defendant has not raised a triable issue of material fact in its shifted burden on this motion for summary judgment. As such, Plaintiffs motion for summary judgment is granted. CONCLUSION AND ORDER Plaintiff 330 North Brand, Inc.s motion for summary judgment is granted. Plaintiff is ordered to lodge with the Court and serve on Defendant a proposed judgment within ten (10) days and to provide notice of this order. Plaintiff shall provide notice of this order. DATED: July 10, 2024 ___________________________ John Kralik Judge of the Superior Court [1] Defendant cites to various cases regarding partial performance of unexecuted agreements or oral agreements to argue that it has sufficiently raised a triable issue of material fact. However, the cases cited are factually distinguishable. For example, Schubert v. Lowe (1924) 193 Cal. 291 involved an oral agreement whereby the plaintiff agreed to execute a written lease. Unlike this case, Schubert did not involve an underlying written and executed agreement that required all subsequent amendments and modifications to be in writing. [2] Section 30.8, entitled Entire Agreement; Merger; Severability states that no provision of the Lease may be modified, waived or discharged except by an instrument in writing signed by the party against which enforcement of such modification, waiver or discharge is sought.

U.S. BANK TRUST, N.A. VS. SELLS Case Number: 22CV-0200669 Tentative Ruling on Order to Show Cause Re Dismissal: An Order to Show Cause Re Dismissal (hereinafter “OSC”) issued May 31, 2024, to Plaintiff’s Counsel for failure to submit a proposed judgment as ordered on September 25, 2023. Counsel has submitted a response to the OSC Re: Dismissal, and a Request to Vacate an Order of Sanctions that was made by Judge Boeckman on May 28, 2024. The Court declines to vacate its May 31, 2024 Order imposing sanctions. That issue is not properly before the Court. That order was issued by another judge and Counsel failed to appear at the hearing on that matter. A proposed judgment was lodged with the Court on June 24, 2024. However, the Court notes that the proposed judgment identifies two street addresses for the subject property, each of which are different from the street address identified in the Request for Court Judgment by Default. The Court needs further clarification as to the correct address. The ‘correctness’ of the judgment is not at issue in the instant OSC. Only the failure to timely provide the Court with a proposed judgment is at issue in this hearing. Having reviewed counsel’s declaration, the Court finds good cause to vacate the instant OSCThe Court confirms today’s review hearing set for 9:00 a.m. ****************************************************************************** 9:00 a.m. Review Hearings ******************************************************************************