Preview
1 AKAY LAW
DOUGLAS N. AKAY, SBN 131011
2 Email: dnakay@akaylaw.com
ELSA BERRY, SBN 262363
3 Email: eberry@akaylaw.com
90 New Montgomery Street, Ninth Floor
4 San Francisco, California 94105
Telephone: (415) 362-2580
5 Facsimile: (415) 434-0882
6 Attorneys for Plaintiffs 524 UNION STREET
and BEVERLY A. SMUCHA
7
SUPERIOR COURT OF CALIFORNIA
8
IN AND FOR THE COUNTY OF SAN MATEO
9
10 524 UNION STREET, a California General Case No.: 18-CIV-00533
Partnership, and BEVERLY A. SMUCHA, an
11 individual, ELSA BERRY’S DECLARATION IN
SUPPORT OF PLAINTIFFS 524 UNION
12 Plaintiffs, STREET’S AND BEVERLY A.
SMUCHA’S MEMORANDUM OF
13 v. POINTS AND AUTHORITY IN SUPPORT
OF PLAINTIFFS’ MOTION TO COMPEL
14 JAMES S. KNOPF, individually and dba Law COMPLIANCE WITH THE MARCH 28,
Offices of JAMES S. KNOPF, and DOES 1 2022 AGREEMENT TO PRODUCE
15 through 10, inclusive, NATIVE FORMAT AND THE
JANURARY 11, 2022 AGREEMENT TO
16 Defendants. PRODUCE DOCUMENTS AND FOR
PROTECTIVE ORDER
17
DATE: June 22, 20022
18 AND RELATED CROSS-ACTION. TIME: 2:00 P. M.
DEPT: Law & Motion
19 JUDGE: Hon. Marie S. Weiner
20 Accompanying Pleadings:
1. Notice of Motion and Motion to Compel
21 Compliance and for Protective Order
2. Memorandum of Points and Authorities
22 ISO Motion to Compel Compliance and
for Protective Order
23
24
I, Elsa Berry, declare as follows:
25
26
27 1
28 CASE NO.: 18-CIV-00533
BERRY DECLARATION ISO PLAINTIFFS’ MOT. TO COMPEL COMPLIANCE AND FOR PROTECTIVE ORDER
1 1. I am an attorney at law, duly admitted to practice before all courts of the State of
2 California and an associate as Akay Law, the attorneys of record herein for Plaintiffs 524 Union
3 Street and Beverly A. Smucha. I have personal knowledge of the matters set forth in this declaration
4 and could and would competently testify regarding these matters if called upon to do so.
5 2. This declaration is being submitted in support of Plaintiffs’ Motion to Compel
6 Compliance With Written Agreement and for Protective Order.
7 3. Defendant produced 48,936 documents. A third of Defendant’s production of
8 documents, bearing bates numbers JSK031731 trough JSK048936 (17,205 documents) is corrupted
9 because imbedded with characters that made them illegible. As an illustration, document bates
10 number JSK031958, randomly pulled out from Defendant’s corrupted files, reads:
11 <= font class="Apple-style-span" face="'bookman old style', 'new
york', ti= mes, serif" size="2">Realtor SFR Certified.
12
13 Similar illegible embedded characters are found consistently throughout the 17, 205 documents, bates
14 numbers JSK031731 trough JSK048936. A true and correct copy of Defendant’s Production, bearing
15 Bates Numbers documents bates numbers JSK032023 through JSK03203 and JSK031958, are
16 attached hereto as Exhibit A.
4. On March 22, 2022, I informed Adrian Sacharski, counsel for Defendant, that
17
documents bates numbers JSK031731 trough JSK048936 were corrupted and illegible and I
18
requested that Defendants produces those documents in native format. Defendant’s counsel did not
19
respond. A true and correct copy of my email to Defendant’s counsel, dated March 22, 2022 is
20
attached hereto as Exhibit B.
21
5. On March 25, 2022, I sent another email to Adrian Sacharski, inquiring whether
22
Defendant’s counsel would be agreeable to produce the native format of such documents by March
23
30, 2022. A true and correct copy of my email to Defendant’s counsel, dated March 25, 2022, is
24
attached hereto as Exhibit C (page 3, at the bottom).
25
6. I needed to review those documents prior to responding to Defendants’ Requests and
26
Interrogatories, which were due on April 14, 2022.
27
2
28
CASE NO.: 18-CIV-00533
BERRY DECLARATION ISO PLAINTIFFS’ MOT. TO COMPEL COMPLIANCE AND FOR PROTECTIVE ORDER
1 7. Adrian Sacharski, replied on March 28, 2022, stating in relevant part:
2 I will review our production and attempt to remedy the issue.
However, I will not be able to do so by March 30, 2022, as I will be
3 in depositions until this Thursday. I will review our production and
underlying client file and let you know if there is anything that can be
4
done about the production set by next week, April 8, 2022.
5 Please let me know if this is acceptable to you.
6 A true and correct copy of my email to Defendant’s counsel’s email, dated March 28, 2022, is
7 attached hereto as Exhibit C (page 3, at the top).
8 8. The same day, March 28, 2022, I replied, in the following terms:
9 If you cannot provide the native format of bates No. JSK031731-
JSK048936 by March 30, 2022, then we request that your extent our
10 deadline to respond to discovery until 15 days after the date
you will re-produce those documents in native format . . ..
11 Please confirm that you are agreeable to such an extension, so our
clients are not affected by your client’s defective production.
12
13 A true and correct copy of my reply dated March 28, 2022, is attached hereto as Exhibit C (page 1
14 and 2).
15 9. On March 28, 2022, Defendant’s counsel materialized the terms of our agreement,
16 stating:
17 We agree to the below terms. I completely understand your needing
to review documents in advance of responding to discovery.
18 To that end, we agree that your client will have 15 days to respond to
our discovery starting on the date which you receive the subject
19 document production, presuming that our deadline to file a motion to
compel is equally extended.
20 I will get to this as soon as I am done with depositions this Thursday
21 and will hopefully have the documents sent to you by this Friday or
early next week . . ..
22
23 A true and correct copy of Defendant’s counsel email, dated March 28, 2022, is attached hereto as
24 Exhibit C (page 1).
25 10. On April 7, 2022, Defendant’s counsel wrote:
26 we have no obligation to produce native versions of the previously
produced documents identified in your email . . .
27
3
28
CASE NO.: 18-CIV-00533
BERRY DECLARATION ISO PLAINTIFFS’ MOT. TO COMPEL COMPLIANCE AND FOR PROTECTIVE ORDER
1
You will need a conversion software or outside vendor to convert
2 them for you. The software that we used to convert them into the
format which they were previously produced is called “Aid 4 Mail.”
3
However, you should try to find an alternative software as a
4 conversion by Aid 4 Mail would result in the same errors . . .
5 If you disagree, please send me a formal meet and confer letter
discussing the legal basis for your position.
6
A true and correct copy of Defendant’s counsel email, dated April 7, 2022, is attached hereto as
7
Exhibit D.
8
11. Defendant’s counsel’s new requirements that Plaintiffs’ counsel convert Defendants’
9
Production to access Defendant’s document were inconsistent with the terms of the March 28, 2022.
10
See Exhibit C (page 1).
11
12. In a good faith attempt to resolve this matter without this Court’s intervention, I sent
12
a meet and confer letter to Defendant’s counsel, on April 14, 2022, stating the legal grounds for
13
Plaintiffs’ Requests that Defendant abide by the terms of the March 28, 2022 Agreement. I also
14
identified Defendant’s statutory violations in Defendant’s Production and Responses to Plaintiffs’
15
Requests for Production of Documents. A true and correct copy of my meet and confer letter to
16
Defendants’ counsel, dated April 14, 2022, is attached hereto as Exhibit E.
17
13. Although I could not access the documents upon clicking on the link provided by
18
Defendant’s counsel, the latter insisted that the 15-day extension commences as of the reception of
19
his April 7, 2022 email, and demanded, on April 15, 2022, that Plaintiffs’ respond to Defendant’s
20
discovery requests and interrogatories, by April 22, 2022 even though Plaintiffs still did not have
21
access to Defendant’s documents bates numbered JSK031731 trough JSK048936. A true and correct
22
copy of Defendant’s counsel email, dated April 15, 2022, is attached hereto as Exhibits F (pages 2-
23
3)
24
14. Again, on April 18, 2022, Plaintiffs’ counsel reiterated her efforts to resolve the
25
matter amicably, reminding Defendant’s counsel’ unjustified underlying threat of motion to compel
26
were improper in the context of a good faith meet and confer, especially because such threats was
27
4
28
CASE NO.: 18-CIV-00533
BERRY DECLARATION ISO PLAINTIFFS’ MOT. TO COMPEL COMPLIANCE AND FOR PROTECTIVE ORDER
1 not warranted considering that there is no case management discovery deadlines and the trial date
2 has not been set yet. A true and correct copy of my April 18, 2022 email to Defendant’s counsel, is
3 attached hereto as Exhibits G (pages 1-2).
4 15. In his meet and confer reply of March 21, 2022, Defendant’s counsel requires that
5 Plaintiffs’ counsel acquire an Apple computer to upload, Defendants’ documents. If furthers claims
6 that his original production of documents bates numbered JSK031731 trough JSK048936 was not
7 corrupted, stating in relevant part:
8 Plaintiffs were subsequently informed that the MBOX files may
easily be accessed by uploading them to an Apple computer. To that
9 end, the documents produced were not “corrupted” so as to warrant
their being reproduced in a different format.
10
11 A true and correct copy of Defendant’s counsel letter of April 21, 2022, is attached hereto as Exhibit
12 H.
13 16. Our firm is only equipped with a PC computer system.
14 17. Defendant continues to claim that they are not obligated to produce Documents bates
15 numbered JSK031731 trough JSK048936 in any other format that a PDF format. Yet, Defendant
16 still has not reproduced the foregoing documents in an uncorrupted and legible PDF format, to allow
17 Plaintiffs to at least read the contents of such documents pending production of their native format,
18 and fully respond to Defendant’s requests and interrogatories.
19 18. On January 11, 2022, Defendant agreed to produce emails in the Underlying Case,
20 in PDF format.
21 I declare under penalty of perjury under the laws of the State of California that the foregoing
22 is true and correct and that this declaration was executed on April 22, 2021, at San Francisco,
23 California.
24
25
26
Elsa Berry
27
5
28
CASE NO.: 18-CIV-00533
BERRY DECLARATION ISO PLAINTIFFS’ MOT. TO COMPEL COMPLIANCE AND FOR PROTECTIVE ORDER
EXHIBIT A
EXHIBIT A
From:
Date: Wed, 4 Nov 2015 18:51:54 +0000 (UTC)
To: James Knopf
Subject: Fw: 524 Union
Attachments: image003.png
----- Forwar= ded Message -----
From: "soval@att.net"
To: Maggie Bourque ; "= James Bourque (james@5-fifths.com)" ; Prentiss Ha= ll
Sent: Wednesday, November 4, 2015 10:49 AM
Subject: Re: Business Account funds
=
Maggie = & Prentiss,
This will confirm that you have completed vacating the premises at 524= Union under your Lease termination, and are ready to
surrender possession. In = order to accommodate your preference; we will be able to meet you at the building tod= ay at 6:00 pm. so
you can personally return all keys and possession of the premises.&= nbsp;
We expect to start a preliminary walk thru today af= ter we have possession. We cannot proceed with our inspection if you remain on =
the property.
I am in receipt of your wiring inst= ructions for funds we are holding.
Bev Smucha
524 Union
Direct:
415-699-09= 41
E.fax:
415-593-7679
Email: soval@att.net
<= b>From: Maggie Bourque
To: "soval@att.net" ; "James Bour= que (james@5-fifths.com)"
Sent: Wednesday, November 4, = 2015 8:28 AM
Subjec= t: FW: Business Account funds
=
Bev = – Attached wiring instructions, please confirm if we can schedule a= time to deliver keys and conduct walk through.
=;
Thank = you,
=;
Maggie Bourque LEED® GA
Senior Operations Manager – Americas
Cushman & Wakefield
As Managing Agent for Symantec Corporation
Direct: +1 650-527-5108
Mobile: +1 408-348-9971
Maggie.Bourque@cushwake.com
=;
= From: Campbell, Juliann [mailt= o:juliann.campbell@ml.com]
Sent: Wednesday, November 04, 2015 5:37 AM
To: Maggie Bourque
Cc: 'prentiss.hall@gmail.com'; Lovell, Charles C - ELKINS PAR PA
Subject: RE: Business Account funds
Good m= orning,
=;
I have= attached the wire instructions for the business account. Please let = me know if you need anything else.
=;
Julian= n
=;
=;
Julian= n Campbell
Client= Associate
Merril= l Lynch Wealth Management
=;
8380 O= ld York Road, Suite 400
Elkins= Park, PA. 19027
JSK032023
EXHIBIT A
Direct= : 215-517-2213
Fax: 2= 15-253-5462
=;
The information contained in this communication is confidential, may be pri= vileged and is intended for the exclusive use of the above named
addressee(= s). If you are not the intended recipient(s), you are expressly prohibited = from copying, distributing, disseminating, or in any other way
using any in= formation contained within this communication. If you have received this co= mmunication in error please contact the sender by
telephone or by response = via mail.
We have taken precautions to minimize the risk of transmitting software vir= uses, but we advise you to carry out your own virus checks on any
attachmen= t to this message. We cannot accept liability for any loss or damage caused= by software viruses.
image003.png
JSK032024
EXHIBIT A
HIBIT A
From:
Date: Wed, 4 Nov 2015 19:47:23 +0000 (UTC)
To: James Knopf
Subject: Fw: 524 Union
Attachments: image001[1].png; image002.png
Now it= s a meeting.
----- Forwarded Message ----= -
From: Maggie Bourque &l= t;Maggie.Bourque@cushwake.com>
To: "soval@att.net" ; "James Bourque (jame= s@5-fifths.com)" ; Prentiss Hall
Sent:= Wednesday, November 4, 2015 11:41 AM
Subject: RE: Business Account funds
= Also, we are confirming the meeting today at 6PM.
Thank you,
Maggie Bourque LEED® GA
Senior Operations Manager – Ame= ricas
Cushman & Wakefield
As M= anaging Agent for Symantec Corporation
&n= bsp;
Dir= ect: +1 650-527-5108
Mob= ile: +1 408-348-9971
Maggie.Bo= urque@cushwake.com
&n= bsp;
= From: Maggie Bourque
Sent: Wednesday, November 04, 2015 11:32 AM
To: 'soval@att.net'; James Bourque (james@5-fifths.com); Prentiss Ha= ll
Subject: RE: Business Account funds
Bev= – As mentioned before we have been out of the premises since Octob= er 31st.
&n= bsp;
Tha= nk you,
&n= bsp;
Maggie Bourque LEED® GA
Sen= ior Operations Manager – Americas
Cush= man & Wakefield
As M= anaging Agent for Symantec Corporation
&n= bsp;
Dir= ect: +1 650-527-5108
Mob= ile: +1 408-348-9971
Maggie.Bo= urque@cushwake.com
&n= bsp;
= From: soval@att.net [mailto:soval@att.net]
Sent: Wednesday, November 04, 2015 10:49 AM
To: Maggie Bourque; James Bourque (james@5-fifths.com); Prentiss Hall
Subject: Re: Business Account funds
Maggie & Prentiss,
This will confirm that you have completed vaca= ting the premises at 524 Union under your Lease termination, and are ready = to surrender
possession. In order to accommodate your preference; we will be able= to meet you at the building today at 6:00 pm. so you can personally return=
all keys and possession of the premises.
We expect to start a preliminary walk thru tod= ay after we have possession. We cannot proceed with our inspection if= you remain on the property.
I am in receipt of your wiring instructions fo= r funds we are holding.
JSK032026
EXHIBIT A
Bev Smucha
524 Union
Direct:415-699-0941 &nbs= p; E.fax:
415-593-7679
Email: soval@att.net
From: Maggie Bourque
To: "soval@att.net" <= ;soval@att.net>; "James Bou= rque (james@5-fifths.com= )"
Sent: Wednesday, November 4, 2015 8:28 AM
Subject: FW: Business Account funds
Bev – Attached wiring instructions, please confirm if we ca= n schedule a time to deliver keys and conduct walk through.
Thank you,
Maggie Bourque LEED® GA
Senior Operations Manager – Americas
Cushman & Wakefield
As Managing Agent for Symantec Corporation
Direct: +1 = 650-527-5108
Mobile: +1 = 408-348-9971
Maggie.Bourque@cushwake.com<= /span>
From: Campbell, Juliann [mailto:juliann.campbell@ml.com]
Sent: Wednesday, November 04, 2015 5:37 AM
To: Maggie Bourque
Cc: 'prentiss.hall@gmail.com'; Lovell, Charles C - ELKINS PAR PA
Subject: RE: Business Account funds
Good morning,
I have attached the wire instructions for the business account.&nbs= p; Please let me know if you need anything else.
Juliann
Juliann Campbell
Client Associate
Merrill Lynch Wealth Management
8380 Old York Road, Suite 400
=
Elkins Park, PA. 19027
Direct: 215-517-2213
Fax: 215-253-5462
The information contained in this communication is confidential, ma= y be privileged and is intended for the exclusive use of the above named ad=
dressee(s). If you are not the intended recipient(s), you are expressly prohibited fro= m copying, distributing, disseminating, or in any other way using
any infor= mation contained within this communication. If you have received this commu= nication in error please contact the sender by telephone or
by response via mail.
We have taken precautions to minimize the risk= of transmitting software viruses, but we advise you to carry out your own = virus checks on any
attachment to this message. We cannot accept liability for a= ny loss or damage caused by software viruses.
image001.png
JSK032027
EXHIBIT A
image002.png
JSK032028
EXHIBIT A
HIBIT A
HIBIT A
From:
Date: Thu, 5 Nov 2015 06:41:59 +0000 (UTC)
To: James Knopf
Subject: Fw: Surrender of premises 524 Union
Hi Jim,
See her letter below. We took possession, I act= ually phoned her regarding the damages, and suggested her son (one of the p= artners) may want to
come back to
the space. He didn't.
I nee= d to get my contractor down their and figure out whats going on.
All= I know is Last Wed. I was down at the building
with two of my contractors = and their were no leaks or water damage. There is water damages to th= e antique oak cooler, and leaking.
I am not responding. I expect she will= file, and most likely contact Natasha to join in.
We can take tomorrow.
=
----- Forwarded Message -----
From: Maggie Bourque
To: "soval@att.net" ; "'pr= entiss.hall@gmail.com'" ; "James Bourque (ja= mes@5-fifths.com)"
Cc: "'maggieluqueb@aol.com'"
Sent: Wednesday, November 4, 2015 9:24 PM
= Subject:<= /span> Surrender of premises
Bev:
<= /div>
It was very disappointing to see how = Soval Realty handled the surren= der of premises and conclusion of lease termination process today at
52= 4 Union.
<= span style="font-size:10.0pt;">your failure to
We have acted in good faith with your company and you as a landlor= d throughout this process despite
disclose that 524 Union had lost i= ts Full Service Restaurant zoning, or of your impending lawsuit for misrepresentation/fraud due to the same misrepresentation of
perm= itted use to your previous lessor. It seems this is now a trend for Sov= al.
It was an agonizing decision for us to terminate this lease as we = thought and were encouraged by you that this was an excellent location for = our “dream” Full Service
Restaurant. But at the end of the day, we did not see a way to overcome th= e zoning issue easily, timely and without great expense. Given the circumstances, we
unfortunately determined to terminate and provided you notice= per the lease agreement.
We cleaned the restaurant on the day we gave notice and took pictu= res of the entire restaurant the way we left it.
We arrived on time to the location as you requested today to hand over = the keys and to do a walk through with you for final inspection.
You did not allow us to enter the prem= ises and conduct a joint walk through. How can that be a “good faith” gesture?
=
Shortly thereafter, we were contacted that there was "significa= nt damage".&n= bsp; We were in no way responsib= le for any damage. Any condition you speak of
would have been pre-existing.
The space was left in “better” condition than when provided to us “as is”. We did not
be= gin any alterations, and had not started any construction,
had not star= ted any renovation, no painting, no cleaning with any = chemicals of any kind…We had only gone as far as to organize the= existing FFE, and have the
equipment inspected for possible maintenance an= d repair.
We offered to settle this amicably in our notice letter and withou= t any further escalation of process. You apparently want to test that appro= ach.
Per our previous communications, we require an immediate return= of our funds in the total amount of $45,250 by Friday, November 6, 2015 or= sooner. In doing so,
we hope our companies amicably part ways without requirement for further a= ction or communication, up to and including legal representation and arbitr= ation.
Sincerely,
Maggie & Prenti= ss
The information contained in this communication is confidential, may be pri= vileged and is intended for the exclusive use of the above named
addressee(= s). If you are not the intended recipient(s), you are expressly prohibited = from copying, distributing, disseminating, or in any other way
using any in= formation contained within this communication. If you have received this co= mmunication in error please contact the sender by
telephone or by response = via mail.
We have taken precautions to minimize the risk of transmitting software vir= uses, but we advise you to carry out your own virus checks on any
attachmen= t to this message. We cannot accept liability for any loss or damage caused= by software viruses.
=
JSK032031
EXHIBIT A
From:
Date: Thu, 5 Nov 2015 19:47:10 +0000 (UTC)
To: James Knopf
Subject: Fw: decided to repond copy
----- Forwarded Message -----
From: "soval@att.net"
To: Maggie Bourque ; "'prentiss.hall@gmail.com'" = ; "James Bourque (james@5-
fifths.com)"
Cc: "'maggieluqueb@aol.com'" &l= t;maggieluqueb@aol.com>
Sent:= Thursday, November 5, 2015 11:45 AM
Subject: Re: Surrender of premises
Maggie & Prentiss,
This will acknowledge that we received possession of the premises at 524 Union St., yesterday evening on the 4th of November.
As you are awar=
e this is a large space, with two electrical panels, two bars, two dining rooms, and a fully equipped commercial restaurant kitchen, with cookware,
dishes, stemware, restaurant furnishings, and a finished basement. = We are unable to determine the condition of the premises including the equipment
or source of any damages without having our Contractors inspect t= he premises; this is not a quick walk thru.
As = a courtesy, I did advise you of some damages, shortly after receiving keys,= and suggested you may want to come back to the space. =
=
Please be assured that we will make every effort to get our Contractors or other professionals into the space; since some of the issues require
immediate attention, along with our intent of cl= osing the Lease account and sending back funds being held.
Best Regards,
Bev Smucha
524 Union,
a gener= al partnership
<= font class="yiv7975826793" id="yiv7975826793yui_3_16_0_1_1446741863501_= 12145" face="'bookman old style', 'new york', times, serif"
size="2">Direct:
415-699-0941E.fax: &nbs= p; 415-593-7679
<= span>
<= font id="yiv7975826793yui_3_16_0_1_1446750851934_20892" face="Arial" si= ze="2"> From: Maggie Bour= que
To: "soval@att.net" = ; "'prentiss.hall@gmail.com'" ; "James Bourq= ue (james@5-fifths.com)"
<= span style="font-weight:bold;">Cc: "'maggieluqueb@aol.com'" &l= t;maggieluqueb@aol.com>
Sent: Wednesday, November 4, 2015 9:24 PM
Subject: Surrender of= premises
Bev:
It was very disappointing to see how Soval Realty handled the surrender of premises and conclusion of lease = termination process today at 524 Union.
<= span style="font-size:10.0pt;">your failure to
We have acted in good faith with your company and you as a landlor= d throughout this process despite
disclose that 524 Union had lost i= ts Full Service Restaurant zoning, or of your impending lawsuit for misrepresentation/fraud due to the same misrepresentation of
perm= itted use to your previous lessor. It seems this is now a trend for Sov= al.
It was an agonizing decision for us to terminate this lease as we = thought and were encouraged by you that this was an excellent location for = our “dream” Full Service
Restaurant. But at the end of the day, we did not see a way to overcome th= e zoning issue easily, timely and without great expense. Given the circumstances, we
unfortunately determined to terminate and provided you notice= per the lease agreement.
We cleaned the restaurant on the day we gave notice and took pictu= res of the entire restaurant the way we left it.
We arrived on time to the location as you requested today to hand over = the keys and to do a walk through with you for final inspection.
JSK032032
EXHIBIT A
You did not allow us to enter the prem= ises and conduct a joint walk through. How can that be a “good faith” gesture?
=
Shortly thereafter, we were contacted that there was "significa= nt damage".&n= bsp; We were in no way responsib= le for any damage. Any condition you speak of
would have been pre-existing.
The space was left in “better” condition than when provided to us “as is”. We did not
be= gin any alterations, and had not started any construction,
had not star= ted any renovation, no painting, no cleaning with any = chemicals of any kind…We had only gone as far as to organize the= existing FFE, and have the
equipment inspected for possible maintenance an= d repair.
We offered to settle this amicably in our notice letter and withou= t any further escalation of process. You apparently want to test that appro= ach.
=
Per our previous communications, we require an immediate return= of our funds in the total amount of $45,250 by Friday, November 6, 2015 or= sooner. In doing so,
we hope our companies amicably part ways without requirement for further a= ction or communication, up to and including legal representation and arbitr= ation.
Sincerely,
Maggie & Prenti= ss
The information contained in this communication is confidential, may be pri= vileged and is intended for the exclusive use of the above named
addressee(= s). If you are not the intended recipient(s), you are expressly prohibited = from copying, distributing, disseminating, or in any other way
using any in= formation contained within this communication. If you have received this co= mmunication in error please contact the sender by
telephone or by response = via mail.
We have taken precautions to minimize the risk of transmitting software vir= uses, but we advise you to carry out your own virus checks on any
attachmen= t to this message. We cannot accept liability for any loss or damage caused= by software viruses.
=
JSK032033
EXHIBIT A
From:
Date: Tue, 10 Nov 2015 02:52:25 +0000 (UTC)
To: James Knopf
Subject: 524 Union
Attachments: closing statement borque 1copy.pdf
Hi Jim,<= /div>
Can I get your opinion.&nb= sp; I can just refund the full amount without submitting a closing invoice = or send the invoice.
These were freshly
refinished floors after= Natasha.
How it looks if they join in with= Natasha.
Thanks.
&= nbsp;
Bev Smucha
Soval Realty
Broker
Realtor SFR = Certified
DRE Lic #00855950
Office: 415-565-4498 Direct: 415-585-0343
Cell:415-699-0941Fax: 415-= 239-7004
E.fax:415-593-7679
Email: soval@att.ne<= font class="Apple-style-span" face="'bookman old style', 'new york', ti= mes, serif">t
closing statement borque 1copy.pdf
JSK032034
EXHIBIT A
! !
524 UNION STREET
a General Partnership !
76 Brentwood Ave.
San Francisco, CA.94127
Optimist Prime Enterprises Inc. CA
Margot Bourque
Prentiss J. Hall
DBA MENU ON UNION
! ! ! ! INVOICE CLOSING STATEMENT
______________________________________________________________________
DATE DESCRIPTION CHARGES CREDIT BALANCE
Lease 10/13/14 to 11/4/15
10/31/15 Lease Termination by Lessee
11/04/15 Premises Surrendered
10/13/15 First Month’s Rent $ 8000.00 $ 8000.-
Received
10/13/15 Six Month’s NNN $ 5250.00 $ 5250.-
Received
10/13/15 Security Deposit $30,000.00 $30,000.-
Received
Administration Fee $ 2,500.00
Waived
P.G.E.
10/13/15 to 10/31/15 ! $ 220.35
NNN Charges Pro-rata!
Water Service 10/13 -
10/26: !! $ 61.36
Water Fire line $ 30.02
Sprinkler phone lines ! $ 49.45
Sprinkler monitoring TRI ! $ 13.34
Insurance $ 163.42
Taxes $ 322.23
Total Due: $ 860.17
Note: Premises left in poor condition/unauthorized exploratory work,
! alterations & damages, improper cleaning products on finished wood & floors
! excessive wear & tear.
11/9/15 $45,250.-
JSK032035
EXHIBIT A
From:
Date: Tue, 10 Nov 2015 21:26:00 +0000 (UTC)
To: James Knopf
Subject: Fw: Lease Termination 524 Union
= ----- Forwarded Message -----
From: Maggie bourque
To: "&= lt;soval@att.net>"
Sent: Tuesday, November 10, 2015 1:16 PM
Subject: Re: Lease Termination
Thank you, it's appr= eciated.
On Nov 10, 2015, at 12:20 PM, <= soval@att.net> wrote:
Dear Maggie & Prentiss,
Reference is = made to your notice of early Lease Termination at the premises at
524 Union= Street. In an effort to resolve this matter in it's entirety, = we
are refunding the full amount of funds without the deductions, fees or c= osts as
provided in the Lease.
Best Regards,
=
Bev Smucha
524 Union
Direct:415-699-0941E.fax:
415-593-7679
Email: soval@att.net
JSK032036
EXHIBIT A
From:
Date: Thu, 29 Oct 2015 00:15:13 +0000 (UTC)
To: James Knopf
Subject: 524 Union
Hi Jim= ,
At least the sump= pump wasn't removed; I guess the wood enclosure was just removed. &nb= sp; Still no service.
<= font id="yui_3_16_0_1_1446077643552_2888" class="Apple-style-span" face= ="'bookman old style', 'new york', times, serif">Bev Smucha=
Soval R
Preview
1 AKAY LAW DOUGLAS N. AKAY, SBN 131011 2 Email: dnakay@akaylaw.com ELSA BERRY, SBN 262363 3 Email: eberry@akaylaw.com 90 New Montgomery Street, Ninth Floor 4 San Francisco, California 94105 Telephone: (415) 362-2580 5 Facsimile: (415) 434-0882 6 Attorneys for Plaintiffs 524 UNION STREET and BEVERLY A. SMUCHA 7 SUPERIOR COURT OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SAN MATEO 9 10 524 UNION STREET, a California General Case No.: 18-CIV-00533 Partnership, and BEVERLY A. SMUCHA, an 11 individual, ELSA BERRY’S DECLARATION IN SUPPORT OF PLAINTIFFS 524 UNION 12 Plaintiffs, STREET’S AND BEVERLY A. SMUCHA’S MEMORANDUM OF 13 v. POINTS AND AUTHORITY IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL 14 JAMES S. KNOPF, individually and dba Law COMPLIANCE WITH THE MARCH 28, Offices of JAMES S. KNOPF, and DOES 1 2022 AGREEMENT TO PRODUCE 15 through 10, inclusive, NATIVE FORMAT AND THE JANURARY 11, 2022 AGREEMENT TO 16 Defendants. PRODUCE DOCUMENTS AND FOR PROTECTIVE ORDER 17 DATE: June 22, 20022 18 AND RELATED CROSS-ACTION. TIME: 2:00 P. M. DEPT: Law & Motion 19 JUDGE: Hon. Marie S. Weiner 20 Accompanying Pleadings: 1. Notice of Motion and Motion to Compel 21 Compliance and for Protective Order 2. Memorandum of Points and Authorities 22 ISO Motion to Compel Compliance and for Protective Order 23 24 I, Elsa Berry, declare as follows: 25 26 27 1 28 CASE NO.: 18-CIV-00533 BERRY DECLARATION ISO PLAINTIFFS’ MOT. TO COMPEL COMPLIANCE AND FOR PROTECTIVE ORDER 1 1. I am an attorney at law, duly admitted to practice before all courts of the State of 2 California and an associate as Akay Law, the attorneys of record herein for Plaintiffs 524 Union 3 Street and Beverly A. Smucha. I have personal knowledge of the matters set forth in this declaration 4 and could and would competently testify regarding these matters if called upon to do so. 5 2. This declaration is being submitted in support of Plaintiffs’ Motion to Compel 6 Compliance With Written Agreement and for Protective Order. 7 3. Defendant produced 48,936 documents. A third of Defendant’s production of 8 documents, bearing bates numbers JSK031731 trough JSK048936 (17,205 documents) is corrupted 9 because imbedded with characters that made them illegible. As an illustration, document bates 10 number JSK031958, randomly pulled out from Defendant’s corrupted files, reads: 11 <= font class="Apple-style-span" face="'bookman old style', 'new york', ti= mes, serif" size="2">Realtor SFR Certified. 12 13 Similar illegible embedded characters are found consistently throughout the 17, 205 documents, bates 14 numbers JSK031731 trough JSK048936. A true and correct copy of Defendant’s Production, bearing 15 Bates Numbers documents bates numbers JSK032023 through JSK03203 and JSK031958, are 16 attached hereto as Exhibit A. 4. On March 22, 2022, I informed Adrian Sacharski, counsel for Defendant, that 17 documents bates numbers JSK031731 trough JSK048936 were corrupted and illegible and I 18 requested that Defendants produces those documents in native format. Defendant’s counsel did not 19 respond. A true and correct copy of my email to Defendant’s counsel, dated March 22, 2022 is 20 attached hereto as Exhibit B. 21 5. On March 25, 2022, I sent another email to Adrian Sacharski, inquiring whether 22 Defendant’s counsel would be agreeable to produce the native format of such documents by March 23 30, 2022. A true and correct copy of my email to Defendant’s counsel, dated March 25, 2022, is 24 attached hereto as Exhibit C (page 3, at the bottom). 25 6. I needed to review those documents prior to responding to Defendants’ Requests and 26 Interrogatories, which were due on April 14, 2022. 27 2 28 CASE NO.: 18-CIV-00533 BERRY DECLARATION ISO PLAINTIFFS’ MOT. TO COMPEL COMPLIANCE AND FOR PROTECTIVE ORDER 1 7. Adrian Sacharski, replied on March 28, 2022, stating in relevant part: 2 I will review our production and attempt to remedy the issue. However, I will not be able to do so by March 30, 2022, as I will be 3 in depositions until this Thursday. I will review our production and underlying client file and let you know if there is anything that can be 4 done about the production set by next week, April 8, 2022. 5 Please let me know if this is acceptable to you. 6 A true and correct copy of my email to Defendant’s counsel’s email, dated March 28, 2022, is 7 attached hereto as Exhibit C (page 3, at the top). 8 8. The same day, March 28, 2022, I replied, in the following terms: 9 If you cannot provide the native format of bates No. JSK031731- JSK048936 by March 30, 2022, then we request that your extent our 10 deadline to respond to discovery until 15 days after the date you will re-produce those documents in native format . . .. 11 Please confirm that you are agreeable to such an extension, so our clients are not affected by your client’s defective production. 12 13 A true and correct copy of my reply dated March 28, 2022, is attached hereto as Exhibit C (page 1 14 and 2). 15 9. On March 28, 2022, Defendant’s counsel materialized the terms of our agreement, 16 stating: 17 We agree to the below terms. I completely understand your needing to review documents in advance of responding to discovery. 18 To that end, we agree that your client will have 15 days to respond to our discovery starting on the date which you receive the subject 19 document production, presuming that our deadline to file a motion to compel is equally extended. 20 I will get to this as soon as I am done with depositions this Thursday 21 and will hopefully have the documents sent to you by this Friday or early next week . . .. 22 23 A true and correct copy of Defendant’s counsel email, dated March 28, 2022, is attached hereto as 24 Exhibit C (page 1). 25 10. On April 7, 2022, Defendant’s counsel wrote: 26 we have no obligation to produce native versions of the previously produced documents identified in your email . . . 27 3 28 CASE NO.: 18-CIV-00533 BERRY DECLARATION ISO PLAINTIFFS’ MOT. TO COMPEL COMPLIANCE AND FOR PROTECTIVE ORDER 1 You will need a conversion software or outside vendor to convert 2 them for you. The software that we used to convert them into the format which they were previously produced is called “Aid 4 Mail.” 3 However, you should try to find an alternative software as a 4 conversion by Aid 4 Mail would result in the same errors . . . 5 If you disagree, please send me a formal meet and confer letter discussing the legal basis for your position. 6 A true and correct copy of Defendant’s counsel email, dated April 7, 2022, is attached hereto as 7 Exhibit D. 8 11. Defendant’s counsel’s new requirements that Plaintiffs’ counsel convert Defendants’ 9 Production to access Defendant’s document were inconsistent with the terms of the March 28, 2022. 10 See Exhibit C (page 1). 11 12. In a good faith attempt to resolve this matter without this Court’s intervention, I sent 12 a meet and confer letter to Defendant’s counsel, on April 14, 2022, stating the legal grounds for 13 Plaintiffs’ Requests that Defendant abide by the terms of the March 28, 2022 Agreement. I also 14 identified Defendant’s statutory violations in Defendant’s Production and Responses to Plaintiffs’ 15 Requests for Production of Documents. A true and correct copy of my meet and confer letter to 16 Defendants’ counsel, dated April 14, 2022, is attached hereto as Exhibit E. 17 13. Although I could not access the documents upon clicking on the link provided by 18 Defendant’s counsel, the latter insisted that the 15-day extension commences as of the reception of 19 his April 7, 2022 email, and demanded, on April 15, 2022, that Plaintiffs’ respond to Defendant’s 20 discovery requests and interrogatories, by April 22, 2022 even though Plaintiffs still did not have 21 access to Defendant’s documents bates numbered JSK031731 trough JSK048936. A true and correct 22 copy of Defendant’s counsel email, dated April 15, 2022, is attached hereto as Exhibits F (pages 2- 23 3) 24 14. Again, on April 18, 2022, Plaintiffs’ counsel reiterated her efforts to resolve the 25 matter amicably, reminding Defendant’s counsel’ unjustified underlying threat of motion to compel 26 were improper in the context of a good faith meet and confer, especially because such threats was 27 4 28 CASE NO.: 18-CIV-00533 BERRY DECLARATION ISO PLAINTIFFS’ MOT. TO COMPEL COMPLIANCE AND FOR PROTECTIVE ORDER 1 not warranted considering that there is no case management discovery deadlines and the trial date 2 has not been set yet. A true and correct copy of my April 18, 2022 email to Defendant’s counsel, is 3 attached hereto as Exhibits G (pages 1-2). 4 15. In his meet and confer reply of March 21, 2022, Defendant’s counsel requires that 5 Plaintiffs’ counsel acquire an Apple computer to upload, Defendants’ documents. If furthers claims 6 that his original production of documents bates numbered JSK031731 trough JSK048936 was not 7 corrupted, stating in relevant part: 8 Plaintiffs were subsequently informed that the MBOX files may easily be accessed by uploading them to an Apple computer. To that 9 end, the documents produced were not “corrupted” so as to warrant their being reproduced in a different format. 10 11 A true and correct copy of Defendant’s counsel letter of April 21, 2022, is attached hereto as Exhibit 12 H. 13 16. Our firm is only equipped with a PC computer system. 14 17. Defendant continues to claim that they are not obligated to produce Documents bates 15 numbered JSK031731 trough JSK048936 in any other format that a PDF format. Yet, Defendant 16 still has not reproduced the foregoing documents in an uncorrupted and legible PDF format, to allow 17 Plaintiffs to at least read the contents of such documents pending production of their native format, 18 and fully respond to Defendant’s requests and interrogatories. 19 18. On January 11, 2022, Defendant agreed to produce emails in the Underlying Case, 20 in PDF format. 21 I declare under penalty of perjury under the laws of the State of California that the foregoing 22 is true and correct and that this declaration was executed on April 22, 2021, at San Francisco, 23 California. 24 25 26 Elsa Berry 27 5 28 CASE NO.: 18-CIV-00533 BERRY DECLARATION ISO PLAINTIFFS’ MOT. TO COMPEL COMPLIANCE AND FOR PROTECTIVE ORDER EXHIBIT A EXHIBIT A From: Date: Wed, 4 Nov 2015 18:51:54 +0000 (UTC) To: James Knopf Subject: Fw: 524 Union Attachments: image003.png ----- Forwar= ded Message ----- From: "soval@att.net" To: Maggie Bourque ; "= James Bourque (james@5-fifths.com)" ; Prentiss Ha= ll Sent: Wednesday, November 4, 2015 10:49 AM Subject: Re: Business Account funds = Maggie = & Prentiss, This will confirm that you have completed vacating the premises at 524= Union under your Lease termination, and are ready to surrender possession. In = order to accommodate your preference; we will be able to meet you at the building tod= ay at 6:00 pm. so you can personally return all keys and possession of the premises.&= nbsp; We expect to start a preliminary walk thru today af= ter we have possession. We cannot proceed with our inspection if you remain on = the property. I am in receipt of your wiring inst= ructions for funds we are holding. Bev Smucha 524 Union Direct: 415-699-09= 41 E.fax: 415-593-7679 Email: soval@att.net <= b>From: Maggie Bourque To: "soval@att.net" ; "James Bour= que (james@5-fifths.com)" Sent: Wednesday, November 4, = 2015 8:28 AM Subjec= t: FW: Business Account funds = Bev = – Attached wiring instructions, please confirm if we can schedule a= time to deliver keys and conduct walk through. =; Thank = you, =; Maggie Bourque LEED® GA Senior Operations Manager – Americas Cushman & Wakefield As Managing Agent for Symantec Corporation Direct: +1 650-527-5108 Mobile: +1 408-348-9971 Maggie.Bourque@cushwake.com =; = From: Campbell, Juliann [mailt= o:juliann.campbell@ml.com] Sent: Wednesday, November 04, 2015 5:37 AM To: Maggie Bourque Cc: 'prentiss.hall@gmail.com'; Lovell, Charles C - ELKINS PAR PA Subject: RE: Business Account funds Good m= orning, =; I have= attached the wire instructions for the business account. Please let = me know if you need anything else. =; Julian= n =; =; Julian= n Campbell Client= Associate Merril= l Lynch Wealth Management =; 8380 O= ld York Road, Suite 400 Elkins= Park, PA. 19027 JSK032023 EXHIBIT A Direct= : 215-517-2213 Fax: 2= 15-253-5462 =; The information contained in this communication is confidential, may be pri= vileged and is intended for the exclusive use of the above named addressee(= s). If you are not the intended recipient(s), you are expressly prohibited = from copying, distributing, disseminating, or in any other way using any in= formation contained within this communication. If you have received this co= mmunication in error please contact the sender by telephone or by response = via mail. We have taken precautions to minimize the risk of transmitting software vir= uses, but we advise you to carry out your own virus checks on any attachmen= t to this message. We cannot accept liability for any loss or damage caused= by software viruses. image003.png JSK032024 EXHIBIT A HIBIT A From: Date: Wed, 4 Nov 2015 19:47:23 +0000 (UTC) To: James Knopf Subject: Fw: 524 Union Attachments: image001[1].png; image002.png Now it= s a meeting. ----- Forwarded Message ----= - From: Maggie Bourque &l= t;Maggie.Bourque@cushwake.com> To: "soval@att.net" ; "James Bourque (jame= s@5-fifths.com)" ; Prentiss Hall Sent:= Wednesday, November 4, 2015 11:41 AM Subject: RE: Business Account funds = Also, we are confirming the meeting today at 6PM. Thank you, Maggie Bourque LEED® GA Senior Operations Manager – Ame= ricas Cushman & Wakefield As M= anaging Agent for Symantec Corporation &n= bsp; Dir= ect: +1 650-527-5108 Mob= ile: +1 408-348-9971 Maggie.Bo= urque@cushwake.com &n= bsp; = From: Maggie Bourque Sent: Wednesday, November 04, 2015 11:32 AM To: 'soval@att.net'; James Bourque (james@5-fifths.com); Prentiss Ha= ll Subject: RE: Business Account funds Bev= – As mentioned before we have been out of the premises since Octob= er 31st. &n= bsp; Tha= nk you, &n= bsp; Maggie Bourque LEED® GA Sen= ior Operations Manager – Americas Cush= man & Wakefield As M= anaging Agent for Symantec Corporation &n= bsp; Dir= ect: +1 650-527-5108 Mob= ile: +1 408-348-9971 Maggie.Bo= urque@cushwake.com &n= bsp; = From: soval@att.net [mailto:soval@att.net] Sent: Wednesday, November 04, 2015 10:49 AM To: Maggie Bourque; James Bourque (james@5-fifths.com); Prentiss Hall Subject: Re: Business Account funds Maggie & Prentiss, This will confirm that you have completed vaca= ting the premises at 524 Union under your Lease termination, and are ready = to surrender possession. In order to accommodate your preference; we will be able= to meet you at the building today at 6:00 pm. so you can personally return= all keys and possession of the premises. We expect to start a preliminary walk thru tod= ay after we have possession. We cannot proceed with our inspection if= you remain on the property. I am in receipt of your wiring instructions fo= r funds we are holding. JSK032026 EXHIBIT A Bev Smucha 524 Union Direct:415-699-0941 &nbs= p; E.fax: 415-593-7679 Email: soval@att.net From: Maggie Bourque To: "soval@att.net" <= ;soval@att.net>; "James Bou= rque (james@5-fifths.com= )" Sent: Wednesday, November 4, 2015 8:28 AM Subject: FW: Business Account funds Bev – Attached wiring instructions, please confirm if we ca= n schedule a time to deliver keys and conduct walk through. Thank you, Maggie Bourque LEED® GA Senior Operations Manager – Americas Cushman & Wakefield As Managing Agent for Symantec Corporation Direct: +1 = 650-527-5108 Mobile: +1 = 408-348-9971 Maggie.Bourque@cushwake.com<= /span> From: Campbell, Juliann [mailto:juliann.campbell@ml.com] Sent: Wednesday, November 04, 2015 5:37 AM To: Maggie Bourque Cc: 'prentiss.hall@gmail.com'; Lovell, Charles C - ELKINS PAR PA Subject: RE: Business Account funds Good morning, I have attached the wire instructions for the business account.&nbs= p; Please let me know if you need anything else. Juliann Juliann Campbell Client Associate Merrill Lynch Wealth Management 8380 Old York Road, Suite 400 = Elkins Park, PA. 19027 Direct: 215-517-2213 Fax: 215-253-5462 The information contained in this communication is confidential, ma= y be privileged and is intended for the exclusive use of the above named ad= dressee(s). If you are not the intended recipient(s), you are expressly prohibited fro= m copying, distributing, disseminating, or in any other way using any infor= mation contained within this communication. If you have received this commu= nication in error please contact the sender by telephone or by response via mail. We have taken precautions to minimize the risk= of transmitting software viruses, but we advise you to carry out your own = virus checks on any attachment to this message. We cannot accept liability for a= ny loss or damage caused by software viruses. image001.png JSK032027 EXHIBIT A image002.png JSK032028 EXHIBIT A HIBIT A HIBIT A From: Date: Thu, 5 Nov 2015 06:41:59 +0000 (UTC) To: James Knopf Subject: Fw: Surrender of premises 524 Union Hi Jim, See her letter below. We took possession, I act= ually phoned her regarding the damages, and suggested her son (one of the p= artners) may want to come back to the space. He didn't. I nee= d to get my contractor down their and figure out whats going on. All= I know is Last Wed. I was down at the building with two of my contractors = and their were no leaks or water damage. There is water damages to th= e antique oak cooler, and leaking. I am not responding. I expect she will= file, and most likely contact Natasha to join in. We can take tomorrow. = ----- Forwarded Message ----- From: Maggie Bourque To: "soval@att.net" ; "'pr= entiss.hall@gmail.com'" ; "James Bourque (ja= mes@5-fifths.com)" Cc: "'maggieluqueb@aol.com'" Sent: Wednesday, November 4, 2015 9:24 PM = Subject:<= /span> Surrender of premises Bev: <= /div> It was very disappointing to see how = Soval Realty handled the surren= der of premises and conclusion of lease termination process today at 52= 4 Union. <= span style="font-size:10.0pt;">your failure to We have acted in good faith with your company and you as a landlor= d throughout this process despite disclose that 524 Union had lost i= ts Full Service Restaurant zoning, or of your impending lawsuit for misrepresentation/fraud due to the same misrepresentation of perm= itted use to your previous lessor. It seems this is now a trend for Sov= al. It was an agonizing decision for us to terminate this lease as we = thought and were encouraged by you that this was an excellent location for = our “dream” Full Service Restaurant. But at the end of the day, we did not see a way to overcome th= e zoning issue easily, timely and without great expense. Given the circumstances, we unfortunately determined to terminate and provided you notice= per the lease agreement. We cleaned the restaurant on the day we gave notice and took pictu= res of the entire restaurant the way we left it. We arrived on time to the location as you requested today to hand over = the keys and to do a walk through with you for final inspection. You did not allow us to enter the prem= ises and conduct a joint walk through. How can that be a “good faith” gesture? = Shortly thereafter, we were contacted that there was "significa= nt damage".&n= bsp; We were in no way responsib= le for any damage. Any condition you speak of would have been pre-existing. The space was left in “better” condition than when provided to us “as is”. We did not be= gin any alterations, and had not started any construction, had not star= ted any renovation, no painting, no cleaning with any = chemicals of any kind…We had only gone as far as to organize the= existing FFE, and have the equipment inspected for possible maintenance an= d repair. We offered to settle this amicably in our notice letter and withou= t any further escalation of process. You apparently want to test that appro= ach. Per our previous communications, we require an immediate return= of our funds in the total amount of $45,250 by Friday, November 6, 2015 or= sooner. In doing so, we hope our companies amicably part ways without requirement for further a= ction or communication, up to and including legal representation and arbitr= ation. Sincerely, Maggie & Prenti= ss The information contained in this communication is confidential, may be pri= vileged and is intended for the exclusive use of the above named addressee(= s). If you are not the intended recipient(s), you are expressly prohibited = from copying, distributing, disseminating, or in any other way using any in= formation contained within this communication. If you have received this co= mmunication in error please contact the sender by telephone or by response = via mail. We have taken precautions to minimize the risk of transmitting software vir= uses, but we advise you to carry out your own virus checks on any attachmen= t to this message. We cannot accept liability for any loss or damage caused= by software viruses. = JSK032031 EXHIBIT A From: Date: Thu, 5 Nov 2015 19:47:10 +0000 (UTC) To: James Knopf Subject: Fw: decided to repond copy ----- Forwarded Message ----- From: "soval@att.net" To: Maggie Bourque ; "'prentiss.hall@gmail.com'" = ; "James Bourque (james@5- fifths.com)" Cc: "'maggieluqueb@aol.com'" &l= t;maggieluqueb@aol.com> Sent:= Thursday, November 5, 2015 11:45 AM Subject: Re: Surrender of premises Maggie & Prentiss, This will acknowledge that we received possession of the premises at 524 Union St., yesterday evening on the 4th of November. As you are awar= e this is a large space, with two electrical panels, two bars, two dining rooms, and a fully equipped commercial restaurant kitchen, with cookware, dishes, stemware, restaurant furnishings, and a finished basement. = We are unable to determine the condition of the premises including the equipment or source of any damages without having our Contractors inspect t= he premises; this is not a quick walk thru. As = a courtesy, I did advise you of some damages, shortly after receiving keys,= and suggested you may want to come back to the space. = = Please be assured that we will make every effort to get our Contractors or other professionals into the space; since some of the issues require immediate attention, along with our intent of cl= osing the Lease account and sending back funds being held. Best Regards, Bev Smucha 524 Union, a gener= al partnership <= font class="yiv7975826793" id="yiv7975826793yui_3_16_0_1_1446741863501_= 12145" face="'bookman old style', 'new york', times, serif" size="2">Direct: 415-699-0941E.fax: &nbs= p; 415-593-7679 <= span> <= font id="yiv7975826793yui_3_16_0_1_1446750851934_20892" face="Arial" si= ze="2"> From: Maggie Bour= que To: "soval@att.net" = ; "'prentiss.hall@gmail.com'" ; "James Bourq= ue (james@5-fifths.com)" <= span style="font-weight:bold;">Cc: "'maggieluqueb@aol.com'" &l= t;maggieluqueb@aol.com> Sent: Wednesday, November 4, 2015 9:24 PM Subject: Surrender of= premises Bev: It was very disappointing to see how Soval Realty handled the surrender of premises and conclusion of lease = termination process today at 524 Union. <= span style="font-size:10.0pt;">your failure to We have acted in good faith with your company and you as a landlor= d throughout this process despite disclose that 524 Union had lost i= ts Full Service Restaurant zoning, or of your impending lawsuit for misrepresentation/fraud due to the same misrepresentation of perm= itted use to your previous lessor. It seems this is now a trend for Sov= al. It was an agonizing decision for us to terminate this lease as we = thought and were encouraged by you that this was an excellent location for = our “dream” Full Service Restaurant. But at the end of the day, we did not see a way to overcome th= e zoning issue easily, timely and without great expense. Given the circumstances, we unfortunately determined to terminate and provided you notice= per the lease agreement. We cleaned the restaurant on the day we gave notice and took pictu= res of the entire restaurant the way we left it. We arrived on time to the location as you requested today to hand over = the keys and to do a walk through with you for final inspection. JSK032032 EXHIBIT A You did not allow us to enter the prem= ises and conduct a joint walk through. How can that be a “good faith” gesture? = Shortly thereafter, we were contacted that there was "significa= nt damage".&n= bsp; We were in no way responsib= le for any damage. Any condition you speak of would have been pre-existing. The space was left in “better” condition than when provided to us “as is”. We did not be= gin any alterations, and had not started any construction, had not star= ted any renovation, no painting, no cleaning with any = chemicals of any kind…We had only gone as far as to organize the= existing FFE, and have the equipment inspected for possible maintenance an= d repair. We offered to settle this amicably in our notice letter and withou= t any further escalation of process. You apparently want to test that appro= ach. = Per our previous communications, we require an immediate return= of our funds in the total amount of $45,250 by Friday, November 6, 2015 or= sooner. In doing so, we hope our companies amicably part ways without requirement for further a= ction or communication, up to and including legal representation and arbitr= ation. Sincerely, Maggie & Prenti= ss The information contained in this communication is confidential, may be pri= vileged and is intended for the exclusive use of the above named addressee(= s). If you are not the intended recipient(s), you are expressly prohibited = from copying, distributing, disseminating, or in any other way using any in= formation contained within this communication. If you have received this co= mmunication in error please contact the sender by telephone or by response = via mail. We have taken precautions to minimize the risk of transmitting software vir= uses, but we advise you to carry out your own virus checks on any attachmen= t to this message. We cannot accept liability for any loss or damage caused= by software viruses. = JSK032033 EXHIBIT A From: Date: Tue, 10 Nov 2015 02:52:25 +0000 (UTC) To: James Knopf Subject: 524 Union Attachments: closing statement borque 1copy.pdf Hi Jim,<= /div> Can I get your opinion.&nb= sp; I can just refund the full amount without submitting a closing invoice = or send the invoice. These were freshly refinished floors after= Natasha. How it looks if they join in with= Natasha. Thanks. &= nbsp; Bev Smucha Soval Realty Broker Realtor SFR = Certified DRE Lic #00855950 Office: 415-565-4498 Direct: 415-585-0343 Cell:415-699-0941Fax: 415-= 239-7004 E.fax:415-593-7679 Email: soval@att.ne<= font class="Apple-style-span" face="'bookman old style', 'new york', ti= mes, serif">t closing statement borque 1copy.pdf JSK032034 EXHIBIT A ! ! 524 UNION STREET a General Partnership ! 76 Brentwood Ave. San Francisco, CA.94127 Optimist Prime Enterprises Inc. CA Margot Bourque Prentiss J. Hall DBA MENU ON UNION ! ! ! ! INVOICE CLOSING STATEMENT ______________________________________________________________________ DATE DESCRIPTION CHARGES CREDIT BALANCE Lease 10/13/14 to 11/4/15 10/31/15 Lease Termination by Lessee 11/04/15 Premises Surrendered 10/13/15 First Month’s Rent $ 8000.00 $ 8000.- Received 10/13/15 Six Month’s NNN $ 5250.00 $ 5250.- Received 10/13/15 Security Deposit $30,000.00 $30,000.- Received Administration Fee $ 2,500.00 Waived P.G.E. 10/13/15 to 10/31/15 ! $ 220.35 NNN Charges Pro-rata! Water Service 10/13 - 10/26: !! $ 61.36 Water Fire line $ 30.02 Sprinkler phone lines ! $ 49.45 Sprinkler monitoring TRI ! $ 13.34 Insurance $ 163.42 Taxes $ 322.23 Total Due: $ 860.17 Note: Premises left in poor condition/unauthorized exploratory work, ! alterations & damages, improper cleaning products on finished wood & floors ! excessive wear & tear. 11/9/15 $45,250.- JSK032035 EXHIBIT A From: Date: Tue, 10 Nov 2015 21:26:00 +0000 (UTC) To: James Knopf Subject: Fw: Lease Termination 524 Union = ----- Forwarded Message ----- From: Maggie bourque To: "&= lt;soval@att.net>" Sent: Tuesday, November 10, 2015 1:16 PM Subject: Re: Lease Termination Thank you, it's appr= eciated. On Nov 10, 2015, at 12:20 PM, <= soval@att.net> wrote: Dear Maggie & Prentiss, Reference is = made to your notice of early Lease Termination at the premises at 524 Union= Street. In an effort to resolve this matter in it's entirety, = we are refunding the full amount of funds without the deductions, fees or c= osts as provided in the Lease. Best Regards, = Bev Smucha 524 Union Direct:415-699-0941E.fax: 415-593-7679 Email: soval@att.net JSK032036 EXHIBIT A From: Date: Thu, 29 Oct 2015 00:15:13 +0000 (UTC) To: James Knopf Subject: 524 Union Hi Jim= , At least the sump= pump wasn't removed; I guess the wood enclosure was just removed. &nb= sp; Still no service. <= font id="yui_3_16_0_1_1446077643552_2888" class="Apple-style-span" face= ="'bookman old style', 'new york', times, serif">Bev Smucha= Soval R