Preview
1 MATTHEW J. GLUCK (221571)
FRANCES S. CHEEVER (287585)
2 MEGAN C. AMARIS (336283) ELECTRONICALLY
GLUCK DANIEL LLP
3 201 Mission Street, Suite 1330 F I L E D
Superior Court of California,
San Francisco, CA 94105 County of San Francisco
4 Telephone 415-510-2114
Facsimile 415-510-2208 06/18/2021
5 Clerk of the Court
Email litigation@gluckdaniel.com BY: SANDRA SCHIRO
Deputy Clerk
6 Attorneys for Defendant and Cross-Complainant
WATCHFUL, INC.
7
8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10 UNLIMITED JURISDICTION
11
281 ELLIS STREET, LLC, a California Case No. CGC-20-586340
12 limited liability company,
NOTICE OF MOTION AND MOTION FOR
13 Plaintiff, SUMMARY JUDGMENT, OR, IN THE
ALTERNATIVE, SUMMARY
14 v. ADJUDICATION
15 WATCHFUL, INC., a Delaware corporation, Date: September 3, 2021
and DOES 1-10, Time: 9:30 a.m.
16 Dept.: 501
Defendants. Hon. Charles F. Haines
17
Complaint filed: September 1, 2020
18 Trial date: October 4, 2021
19 AND RELATED CROSS-ACTION.
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NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AND FOR SUMMARY
ADJUDICATION
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE THAT on September 3, 2021, at 9:30 a.m., or as soon thereafter
3 as the matter may be heard, Defendant and Cross-Claimant Watchful, Inc. (“Watchful”) will and
4 hereby does move this Court for an order pursuant to Civil Code Procedure section 437c(c)
5 granting summary judgment, or, in the alternative, for summary adjudication in its favor on all
6 causes of action alleged in the complaint by Plaintiff and Cross-Defendant 281 Ellis Street, LLC
7 (“Landlord”).
8 PLEASE TAKE FURTHER NOTICE that on the abovementioned date and time Watchful
9 will and hereby does move this Court for an order pursuant to Civil Code Procedure section
10 437c(c) granting summary adjudication in its favor on all Landlord’s fourth, fifth, and sixth
11 affirmative defenses in its answer to Watchful’s cross-complaint.
12 PLEASE TAKE FURTHER NOTICE that on the abovementioned date and time Watchful
13 will and hereby does move this Court for an order pursuant to Civil Code Procedure section
14 437c(c) granting summary adjudication in its favor on Watchful’s first cause of action for breach
15 of contract pleaded in Watchful’s cross-complaint.
16 1. Summary Judgment/Adjudication as to the claims in Landlord’s complaint:
17 a. First Cause of Action – Breach of Contract. Watchful seeks summary
18 adjudication as to the Landlord’s first cause of action for breach of contract based on any or all of
19 the following bases: (a) Landlord breached the lease between Landlord and Watchful by
20 authorizing its property manager to live in the basement at 281-285 Ellis Street, San Francisco, in
21 violation of the express terms of the lease, and failed to cure the breach after written notice,
22 relieving Watchful of its obligations under the lease; (b) Landlord breached the lease between
23 Landlord and Watchful by authorizing its property manager to lock Watchful out of the basement
24 of the building at 281-285 Ellis Street, San Francisco, which basement included portions of
25 Watchful’s leased Premises, in violation of the express terms of the lease and the implied
26 covenants of quiet possession and quiet enjoyment, and failed to cure the breach after written
27 notice, relieving Watchful of its obligations under the lease; (c) Landlord breached the lease
28 between Landlord and Watchful by authorizing its property manager to use the bathroom, shower,
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NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AND FOR SUMMARY
ADJUDICATION
1 and kitchenette amenities in the basement of the building at 281-285 Ellis Street, San Francisco,
2 which amenities were part of Watchful’s leased Premises, in violation of the express terms of the
3 lease and the implied covenants of quiet possession and quiet enjoyment, and failed to cure the
4 breach after written notice, relieving Watchful of its obligations under the lease.
5 b. Second Cause of Action – Common Count – Open Book Account.
6 Watchful seeks summary adjudication as to the Landlord’s second cause of action for an open
7 book account based on any or all of the following bases: (a) The obligations asserted by Landlord
8 as having been breached by Watchful in its second cause of action arise from the written lease
9 agreement between Watchful and Landlord, and since there is no contrary agreement, such an
10 obligations cannot as a matter of law form the basis for an open book account claim; (b) Landlord
11 breached the lease between Landlord and Watchful by authorizing its property manager to live in
12 the basement at 281-285 Ellis Street, San Francisco, in violation of the express terms of the lease,
13 and failed to cure the breach after written notice, relieving Watchful of its obligations under the
14 lease; (c) Landlord breached the lease between Landlord and Watchful by authorizing its property
15 manager to lock Watchful out of the basement of the building at 281-285 Ellis Street, San
16 Francisco, which basement included portions of Watchful’s leased Premises, in violation of the
17 express terms of the lease and the implied covenants of quiet possession and quiet enjoyment, and
18 failed to cure the breach after written notice, relieving Watchful of its obligations under the lease;
19 (d) Landlord breached the lease between Landlord and Watchful by authorizing its property
20 manager to use the bathroom, shower, and kitchenette amenities in the basement of the building at
21 281-285 Ellis Street, San Francisco, which amenities were part of Watchful’s leased Premises, in
22 violation of the express terms of the lease and the implied covenants of quiet possession and quiet
23 enjoyment, and failed to cure the breach after written notice, relieving Watchful of its obligations
24 under the lease.
25 2. Summary Adjudication as to the Landlord’s fourth, fifth and sixth affirmative
26 defenses in its Answer to Watchful’s Cross-Complaint:
27 a. Fourth Affirmative Defense – Failure to Give Notice of Alleged Breach.
28 Watchful seeks summary adjudication as to the Landlord’s fourth affirmative defense to
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NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AND FOR SUMMARY
ADJUDICATION
1 Watchful’s cross complaint based on an alleged failure to comply with contractual notice
2 requirements, and/or give Cross-Defendant reasonable notice of and opportunity to cure the breach
3 alleged in the Cross-Complaint, based on the following: (a) Landlord breached the lease between
4 Landlord and Watchful by (i) authorizing its property manager to live in the basement at 281-285
5 Ellis Street, San Francisco, in violation of the express terms of the lease; (ii) by authorizing its
6 property manager to lock Watchful out of the basement of the building at 281-285 Ellis Street,
7 San Francisco, which basement included portions of Watchful’s leased Premises, in violation of
8 the express terms of the lease and the implied covenants of quiet possession and quiet enjoyment,
9 and (ii) by authorizing its property manager to use the bathroom, shower, and kitchenette amenities
10 in the basement of the building at 281-285 Ellis Street, San Francisco, which amenities were part
11 of Watchful’s leased Premises, in violation of the express terms of the lease and the implied
12 covenants of quiet possession and quiet enjoyment; (b) Watchful gave written notice of the
13 Landlord’s breaches on January 27, 2020, which notice complied with the requirements of the
14 lease; and (c) the Landlord failed to cure any of the breaches of the lease within the 30-day cure
15 period specified in the lease, or at all, excusing Watchful’s further performance of its obligations
16 under the lease.
17 b. Fifth Affirmative Defense – Failure to Fulfill Condition Precedent.
18 Watchful seeks summary adjudication as to the Landlord’s fifth affirmative defense to Watchful’s
19 cross complaint based on an alleged failure to fulfill contractual conditions precedent to Cross-
20 Defendant’s alleged obligations under the lease, based on the following: (a) Watchful paid all rent
21 and other charges properly assessed by Landlord under the lease, and fulfilled all other of
22 Watchful’s obligations arising under the lease; (b) Landlord breached the lease between Landlord
23 and Watchful by (i) authorizing its property manager to live in the basement at 281-285 Ellis
24 Street, San Francisco, in violation of the express terms of the lease; (ii) by authorizing its property
25 manager to lock Watchful out of the basement of the building at 281-285 Ellis Street, San
26 Francisco, which basement included portions of Watchful’s leased Premises, in violation of the
27 express terms of the lease and the implied covenants of quiet possession and quiet enjoyment, and
28 (ii) by authorizing its property manager to use the bathroom, shower, and kitchenette amenities in
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NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AND FOR SUMMARY
ADJUDICATION
1 the basement of the building at 281-285 Ellis Street, San Francisco, which amenities were part of
2 Watchful’s leased Premises, in violation of the express terms of the lease and the implied
3 covenants of quiet possession and quiet enjoyment; (c) Watchful gave written notice of the
4 Landlord’s breaches on January 27, 2020, which notice complied with the requirements of the
5 lease; and (d) the Landlord failed to cure any of the breaches of the lease within the 30-day cure
6 period specified in the lease, or at all, excusing Watchful’s further performance of its obligations
7 under the lease.
8 c. Sixth Affirmative Defense – Breach of Contract. Watchful seeks
9 summary adjudication as to the Landlord’s sixth affirmative defense to Watchful’s cross complaint
10 based on an alleged failure by Watchful to comply with the terms of the lease between the parties,
11 based on the following: (a) Watchful paid all rent and other charges properly assessed by Landlord
12 under the lease, and fulfilled all other of Watchful’s obligations arising under the lease; (b)
13 Landlord breached the lease between Landlord and Watchful by (i) authorizing its property
14 manager to live in the basement at 281-285 Ellis Street, San Francisco, in violation of the express
15 terms of the lease; (ii) by authorizing its property manager to lock Watchful out of the basement of
16 the building at 281-285 Ellis Street, San Francisco, which basement included portions of
17 Watchful’s leased Premises, in violation of the express terms of the lease and the implied
18 covenants of quiet possession and quiet enjoyment, and (ii) by authorizing its property manager to
19 use the bathroom, shower, and kitchenette amenities in the basement of the building at 281-285
20 Ellis Street, San Francisco, which amenities were part of Watchful’s leased Premises, in violation
21 of the express terms of the lease and the implied covenants of quiet possession and quiet
22 enjoyment; (c) Watchful gave written notice of the Landlord’s breaches on January 27, 2020,
23 which notice complied with the requirements of the lease; and (d) the Landlord failed to cure any
24 of the breaches of the lease within the 30-day cure period specified in the lease, or at all, excusing
25 Watchful’s further performance of its obligations under the lease.
26 3. Summary Adjudication as to Watchful’s first cause of action for breach of
27 contract in its Cross-Complaint: Watchful seeks summary adjudication as to its first cause of
28 action in its Watchful’s cross complaint for breach of contract based on the following: (a)
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NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AND FOR SUMMARY
ADJUDICATION
1 Watchful paid all rent and other charges properly assessed by Landlord under the lease, and
2 fulfilled all other of Watchful’s obligations arising under the lease; (b) Landlord breached the lease
3 between Landlord and Watchful by (i) authorizing its property manager to live in the basement at
4 281-285 Ellis Street, San Francisco, in violation of the express terms of the lease; (ii) by
5 authorizing its property manager to lock Watchful out of the basement of the building at 281-285
6 Ellis Street, San Francisco, which basement included portions of Watchful’s leased Premises, in
7 violation of the express terms of the lease and the implied covenants of quiet possession and quiet
8 enjoyment, and (ii) by authorizing its property manager to use the bathroom, shower, and
9 kitchenette amenities in the basement of the building at 281-285 Ellis Street, San Francisco, which
10 amenities were part of Watchful’s leased Premises, in violation of the express terms of the lease
11 and the implied covenants of quiet possession and quiet enjoyment; (c) Watchful gave written
12 notice of the Landlord’s breaches on January 27, 2020, which notice complied with the
13 requirements of the lease; (d) the Landlord failed to cure any of the breaches of the lease within the
14 30-day cure period specified in the lease, or at all, excusing Watchful’s further performance of its
15 obligations under the lease; (e) Watchful gave valid notice of termination on July 21, 2020,
16 surrendered the premises to landlord, and made a written demand for its security deposit, which is
17 in the amount of $98,400; (f) Landlord has failed and refused to refund Watchful’s security
18 deposit. Watchful also seeks reimbursement of its $7,957.82 payment made on August 12, 2020,
19 which payment is not due under the Lease.
20 This Motion is based upon this Notice, the Memorandum of Points and Authorities, the
21 Separate Statement of Material Undisputed Facts, the Declarations of John Singleton, Charlie
22 Cutler, and Matthew J. Gluck, the files and records in the case, and the arguments of counsel that
23 shall be presented at the hearing on this Motion.
24 Dated: June 18, 2021 GLUCK DANIEL LLP
25
26 Matthew J. Gluck
Attorneys for Defendant and Cross-
27 Complainant WATCHFUL, INC.
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NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AND FOR SUMMARY
ADJUDICATION
1 PROOF OF SERVICE
2 I, Brenda Martinez-Eby, declare as follows: I am a citizen of the United States, over the age of
eighteen years and not a party to the within entitled action. My business address is Gluck Daniel LLP, 201
3 Mission Street, Suite 1330, San Francisco, California 94105. On the date below, I served the attached paper
identified below on the interested parties in said action, by placing a true copy thereof in sealed envelope(s)
4 addressed as indicated and served the named document in the manner indicated below.
5 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE
ALTERNATIVE, SUMMARY ADJUDICATION
6
7
Service upon:
8
Marco Quazzo, Esq.
9 Kimiko Lani Akiya, Esq.
BARTKO, ZANKEL, BUNZEL &
10 MILLER
One Embarcadero Center, Suite 800
11 San Francisco, CA 94111
Tel: 415-956-1900
12 Fax: 415-956-1152
Email: mquazzo@bzbm.com
13 kakiya@bzbm.com
14 Assistant: Barbara Sage
BSAGE@bzbm.com
15
Attorney for Plaintiff 281 ELLIS STREET, LLC
16
BY EMAIL: I caused true and correct copies of the above document(s) to be sent via email to the
17 addressee(s) on this date.I did not receive a notice indicating delivery failure.
BY E-SERVICE: I caused true and correct copies of the above document(s) to be sent via electronic
18 transmission through the Court’s E-service vendor in conformity with San Francisco Superior Court Local
Rule 2.10.
19
BY HAND DELIVERY: I caused true and correct copies of the above document(s) to be placed within
20 a sealed envelope or other package suitable for handling by a messenger or courier service and then caused
the package to be hand-delivered by a same-day messenger service to the addressee(s) on this date.
21
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I declare under penalty of perjury under the laws of the State of California that the foregoing
23 is true and correct. Executed June 18, 2021, at San Francisco, California.
24
25
Brenda Martinez-Eby
26
27
28
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PROOF OF SERVICE
Preview
1 MATTHEW J. GLUCK (221571) FRANCES S. CHEEVER (287585) 2 MEGAN C. AMARIS (336283) ELECTRONICALLY GLUCK DANIEL LLP 3 201 Mission Street, Suite 1330 F I L E D Superior Court of California, San Francisco, CA 94105 County of San Francisco 4 Telephone 415-510-2114 Facsimile 415-510-2208 06/18/2021 5 Clerk of the Court Email litigation@gluckdaniel.com BY: SANDRA SCHIRO Deputy Clerk 6 Attorneys for Defendant and Cross-Complainant WATCHFUL, INC. 7 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 UNLIMITED JURISDICTION 11 281 ELLIS STREET, LLC, a California Case No. CGC-20-586340 12 limited liability company, NOTICE OF MOTION AND MOTION FOR 13 Plaintiff, SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY 14 v. ADJUDICATION 15 WATCHFUL, INC., a Delaware corporation, Date: September 3, 2021 and DOES 1-10, Time: 9:30 a.m. 16 Dept.: 501 Defendants. Hon. Charles F. Haines 17 Complaint filed: September 1, 2020 18 Trial date: October 4, 2021 19 AND RELATED CROSS-ACTION. 20 21 22 23 24 25 26 27 28 -1- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AND FOR SUMMARY ADJUDICATION 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE THAT on September 3, 2021, at 9:30 a.m., or as soon thereafter 3 as the matter may be heard, Defendant and Cross-Claimant Watchful, Inc. (“Watchful”) will and 4 hereby does move this Court for an order pursuant to Civil Code Procedure section 437c(c) 5 granting summary judgment, or, in the alternative, for summary adjudication in its favor on all 6 causes of action alleged in the complaint by Plaintiff and Cross-Defendant 281 Ellis Street, LLC 7 (“Landlord”). 8 PLEASE TAKE FURTHER NOTICE that on the abovementioned date and time Watchful 9 will and hereby does move this Court for an order pursuant to Civil Code Procedure section 10 437c(c) granting summary adjudication in its favor on all Landlord’s fourth, fifth, and sixth 11 affirmative defenses in its answer to Watchful’s cross-complaint. 12 PLEASE TAKE FURTHER NOTICE that on the abovementioned date and time Watchful 13 will and hereby does move this Court for an order pursuant to Civil Code Procedure section 14 437c(c) granting summary adjudication in its favor on Watchful’s first cause of action for breach 15 of contract pleaded in Watchful’s cross-complaint. 16 1. Summary Judgment/Adjudication as to the claims in Landlord’s complaint: 17 a. First Cause of Action – Breach of Contract. Watchful seeks summary 18 adjudication as to the Landlord’s first cause of action for breach of contract based on any or all of 19 the following bases: (a) Landlord breached the lease between Landlord and Watchful by 20 authorizing its property manager to live in the basement at 281-285 Ellis Street, San Francisco, in 21 violation of the express terms of the lease, and failed to cure the breach after written notice, 22 relieving Watchful of its obligations under the lease; (b) Landlord breached the lease between 23 Landlord and Watchful by authorizing its property manager to lock Watchful out of the basement 24 of the building at 281-285 Ellis Street, San Francisco, which basement included portions of 25 Watchful’s leased Premises, in violation of the express terms of the lease and the implied 26 covenants of quiet possession and quiet enjoyment, and failed to cure the breach after written 27 notice, relieving Watchful of its obligations under the lease; (c) Landlord breached the lease 28 between Landlord and Watchful by authorizing its property manager to use the bathroom, shower, -2- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AND FOR SUMMARY ADJUDICATION 1 and kitchenette amenities in the basement of the building at 281-285 Ellis Street, San Francisco, 2 which amenities were part of Watchful’s leased Premises, in violation of the express terms of the 3 lease and the implied covenants of quiet possession and quiet enjoyment, and failed to cure the 4 breach after written notice, relieving Watchful of its obligations under the lease. 5 b. Second Cause of Action – Common Count – Open Book Account. 6 Watchful seeks summary adjudication as to the Landlord’s second cause of action for an open 7 book account based on any or all of the following bases: (a) The obligations asserted by Landlord 8 as having been breached by Watchful in its second cause of action arise from the written lease 9 agreement between Watchful and Landlord, and since there is no contrary agreement, such an 10 obligations cannot as a matter of law form the basis for an open book account claim; (b) Landlord 11 breached the lease between Landlord and Watchful by authorizing its property manager to live in 12 the basement at 281-285 Ellis Street, San Francisco, in violation of the express terms of the lease, 13 and failed to cure the breach after written notice, relieving Watchful of its obligations under the 14 lease; (c) Landlord breached the lease between Landlord and Watchful by authorizing its property 15 manager to lock Watchful out of the basement of the building at 281-285 Ellis Street, San 16 Francisco, which basement included portions of Watchful’s leased Premises, in violation of the 17 express terms of the lease and the implied covenants of quiet possession and quiet enjoyment, and 18 failed to cure the breach after written notice, relieving Watchful of its obligations under the lease; 19 (d) Landlord breached the lease between Landlord and Watchful by authorizing its property 20 manager to use the bathroom, shower, and kitchenette amenities in the basement of the building at 21 281-285 Ellis Street, San Francisco, which amenities were part of Watchful’s leased Premises, in 22 violation of the express terms of the lease and the implied covenants of quiet possession and quiet 23 enjoyment, and failed to cure the breach after written notice, relieving Watchful of its obligations 24 under the lease. 25 2. Summary Adjudication as to the Landlord’s fourth, fifth and sixth affirmative 26 defenses in its Answer to Watchful’s Cross-Complaint: 27 a. Fourth Affirmative Defense – Failure to Give Notice of Alleged Breach. 28 Watchful seeks summary adjudication as to the Landlord’s fourth affirmative defense to -3- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AND FOR SUMMARY ADJUDICATION 1 Watchful’s cross complaint based on an alleged failure to comply with contractual notice 2 requirements, and/or give Cross-Defendant reasonable notice of and opportunity to cure the breach 3 alleged in the Cross-Complaint, based on the following: (a) Landlord breached the lease between 4 Landlord and Watchful by (i) authorizing its property manager to live in the basement at 281-285 5 Ellis Street, San Francisco, in violation of the express terms of the lease; (ii) by authorizing its 6 property manager to lock Watchful out of the basement of the building at 281-285 Ellis Street, 7 San Francisco, which basement included portions of Watchful’s leased Premises, in violation of 8 the express terms of the lease and the implied covenants of quiet possession and quiet enjoyment, 9 and (ii) by authorizing its property manager to use the bathroom, shower, and kitchenette amenities 10 in the basement of the building at 281-285 Ellis Street, San Francisco, which amenities were part 11 of Watchful’s leased Premises, in violation of the express terms of the lease and the implied 12 covenants of quiet possession and quiet enjoyment; (b) Watchful gave written notice of the 13 Landlord’s breaches on January 27, 2020, which notice complied with the requirements of the 14 lease; and (c) the Landlord failed to cure any of the breaches of the lease within the 30-day cure 15 period specified in the lease, or at all, excusing Watchful’s further performance of its obligations 16 under the lease. 17 b. Fifth Affirmative Defense – Failure to Fulfill Condition Precedent. 18 Watchful seeks summary adjudication as to the Landlord’s fifth affirmative defense to Watchful’s 19 cross complaint based on an alleged failure to fulfill contractual conditions precedent to Cross- 20 Defendant’s alleged obligations under the lease, based on the following: (a) Watchful paid all rent 21 and other charges properly assessed by Landlord under the lease, and fulfilled all other of 22 Watchful’s obligations arising under the lease; (b) Landlord breached the lease between Landlord 23 and Watchful by (i) authorizing its property manager to live in the basement at 281-285 Ellis 24 Street, San Francisco, in violation of the express terms of the lease; (ii) by authorizing its property 25 manager to lock Watchful out of the basement of the building at 281-285 Ellis Street, San 26 Francisco, which basement included portions of Watchful’s leased Premises, in violation of the 27 express terms of the lease and the implied covenants of quiet possession and quiet enjoyment, and 28 (ii) by authorizing its property manager to use the bathroom, shower, and kitchenette amenities in -4- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AND FOR SUMMARY ADJUDICATION 1 the basement of the building at 281-285 Ellis Street, San Francisco, which amenities were part of 2 Watchful’s leased Premises, in violation of the express terms of the lease and the implied 3 covenants of quiet possession and quiet enjoyment; (c) Watchful gave written notice of the 4 Landlord’s breaches on January 27, 2020, which notice complied with the requirements of the 5 lease; and (d) the Landlord failed to cure any of the breaches of the lease within the 30-day cure 6 period specified in the lease, or at all, excusing Watchful’s further performance of its obligations 7 under the lease. 8 c. Sixth Affirmative Defense – Breach of Contract. Watchful seeks 9 summary adjudication as to the Landlord’s sixth affirmative defense to Watchful’s cross complaint 10 based on an alleged failure by Watchful to comply with the terms of the lease between the parties, 11 based on the following: (a) Watchful paid all rent and other charges properly assessed by Landlord 12 under the lease, and fulfilled all other of Watchful’s obligations arising under the lease; (b) 13 Landlord breached the lease between Landlord and Watchful by (i) authorizing its property 14 manager to live in the basement at 281-285 Ellis Street, San Francisco, in violation of the express 15 terms of the lease; (ii) by authorizing its property manager to lock Watchful out of the basement of 16 the building at 281-285 Ellis Street, San Francisco, which basement included portions of 17 Watchful’s leased Premises, in violation of the express terms of the lease and the implied 18 covenants of quiet possession and quiet enjoyment, and (ii) by authorizing its property manager to 19 use the bathroom, shower, and kitchenette amenities in the basement of the building at 281-285 20 Ellis Street, San Francisco, which amenities were part of Watchful’s leased Premises, in violation 21 of the express terms of the lease and the implied covenants of quiet possession and quiet 22 enjoyment; (c) Watchful gave written notice of the Landlord’s breaches on January 27, 2020, 23 which notice complied with the requirements of the lease; and (d) the Landlord failed to cure any 24 of the breaches of the lease within the 30-day cure period specified in the lease, or at all, excusing 25 Watchful’s further performance of its obligations under the lease. 26 3. Summary Adjudication as to Watchful’s first cause of action for breach of 27 contract in its Cross-Complaint: Watchful seeks summary adjudication as to its first cause of 28 action in its Watchful’s cross complaint for breach of contract based on the following: (a) -5- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AND FOR SUMMARY ADJUDICATION 1 Watchful paid all rent and other charges properly assessed by Landlord under the lease, and 2 fulfilled all other of Watchful’s obligations arising under the lease; (b) Landlord breached the lease 3 between Landlord and Watchful by (i) authorizing its property manager to live in the basement at 4 281-285 Ellis Street, San Francisco, in violation of the express terms of the lease; (ii) by 5 authorizing its property manager to lock Watchful out of the basement of the building at 281-285 6 Ellis Street, San Francisco, which basement included portions of Watchful’s leased Premises, in 7 violation of the express terms of the lease and the implied covenants of quiet possession and quiet 8 enjoyment, and (ii) by authorizing its property manager to use the bathroom, shower, and 9 kitchenette amenities in the basement of the building at 281-285 Ellis Street, San Francisco, which 10 amenities were part of Watchful’s leased Premises, in violation of the express terms of the lease 11 and the implied covenants of quiet possession and quiet enjoyment; (c) Watchful gave written 12 notice of the Landlord’s breaches on January 27, 2020, which notice complied with the 13 requirements of the lease; (d) the Landlord failed to cure any of the breaches of the lease within the 14 30-day cure period specified in the lease, or at all, excusing Watchful’s further performance of its 15 obligations under the lease; (e) Watchful gave valid notice of termination on July 21, 2020, 16 surrendered the premises to landlord, and made a written demand for its security deposit, which is 17 in the amount of $98,400; (f) Landlord has failed and refused to refund Watchful’s security 18 deposit. Watchful also seeks reimbursement of its $7,957.82 payment made on August 12, 2020, 19 which payment is not due under the Lease. 20 This Motion is based upon this Notice, the Memorandum of Points and Authorities, the 21 Separate Statement of Material Undisputed Facts, the Declarations of John Singleton, Charlie 22 Cutler, and Matthew J. Gluck, the files and records in the case, and the arguments of counsel that 23 shall be presented at the hearing on this Motion. 24 Dated: June 18, 2021 GLUCK DANIEL LLP 25 26 Matthew J. Gluck Attorneys for Defendant and Cross- 27 Complainant WATCHFUL, INC. 28 -6- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AND FOR SUMMARY ADJUDICATION 1 PROOF OF SERVICE 2 I, Brenda Martinez-Eby, declare as follows: I am a citizen of the United States, over the age of eighteen years and not a party to the within entitled action. My business address is Gluck Daniel LLP, 201 3 Mission Street, Suite 1330, San Francisco, California 94105. On the date below, I served the attached paper identified below on the interested parties in said action, by placing a true copy thereof in sealed envelope(s) 4 addressed as indicated and served the named document in the manner indicated below. 5 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 6 7 Service upon: 8 Marco Quazzo, Esq. 9 Kimiko Lani Akiya, Esq. BARTKO, ZANKEL, BUNZEL & 10 MILLER One Embarcadero Center, Suite 800 11 San Francisco, CA 94111 Tel: 415-956-1900 12 Fax: 415-956-1152 Email: mquazzo@bzbm.com 13 kakiya@bzbm.com 14 Assistant: Barbara Sage BSAGE@bzbm.com 15 Attorney for Plaintiff 281 ELLIS STREET, LLC 16 BY EMAIL: I caused true and correct copies of the above document(s) to be sent via email to the 17 addressee(s) on this date.I did not receive a notice indicating delivery failure. BY E-SERVICE: I caused true and correct copies of the above document(s) to be sent via electronic 18 transmission through the Court’s E-service vendor in conformity with San Francisco Superior Court Local Rule 2.10. 19 BY HAND DELIVERY: I caused true and correct copies of the above document(s) to be placed within 20 a sealed envelope or other package suitable for handling by a messenger or courier service and then caused the package to be hand-delivered by a same-day messenger service to the addressee(s) on this date. 21 22 I declare under penalty of perjury under the laws of the State of California that the foregoing 23 is true and correct. Executed June 18, 2021, at San Francisco, California. 24 25 Brenda Martinez-Eby 26 27 28 -1- PROOF OF SERVICE