Preview
1 MARCO QUAZZO (SBN 142182)
mquazzo@bzbm.com
2 P. CASEY MATHEWS (SBN 311838) ELECTRONICALLY
cmathews@bzbm.com
3 BARTKO ZANKEL BUNZEL & MILLER F I L E D
A Professional Law Corporation Superior Court of California,
County of San Francisco
4 One Embarcadero Center, Suite 800
San Francisco, California 94111 05/21/2021
Clerk of the Court
5 Telephone: (415) 956-1900 BY: SANDRA SCHIRO
Facsimile: (415) 956-1152 Deputy Clerk
6
Attorneys for Plaintiff and Cross-Defendant
7 281 ELLIS STREET, LLC
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN FRANCISCO
11
12 281 ELLIS STREET, LLC, a California Case No. CGC-20-586340
Limited Liability Company,
13 281 ELLIS STREET, LLC’S SEPARATE
Plaintiff, STATEMENT OF UNDISPUTED
14 MATERIAL FACTS IN SUPPORT OF
v. MOTION FOR SUMMARY JUDGMENT
15 OR, IN THE ALTERNATIVE, SUMMARY
WATCHFUL, INC., a Delaware corporation; ADJUDICATION AS TO WATCHFUL,
16 and DOES 1 to 10, INC.’S CROSS-COMPLAINT AND FOR
SUMMARY ADJUDICATION AS TO
17 Defendants. WATCHFUL, INC.’S SECOND
AFFIRMATIVE DEFENSE
18
WATCHFUL, INC., a Delaware corporation,
19 Date: August 5, 2021
Cross-Complainant, Time: 9:30 a.m.
20 Dept. 501
v.
21 Action Filed: September 1, 2020
281 ELLIS STREET, LLC, a California Trial Date: October 4, 2021
22 Limited Liability Company; and ROES 1 to
20,
23
Cross-Defendants.
24
25
26
27
28
2828.000/1614365.5 1 Case No. CGC-20-586340
281 ELLIS STREET, LLC’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION
1 Pursuant to Code of Civil Procedure section 437c(b) and California Rules of Court,
2 Rule 3.1350, Plaintiff and Cross-Defendant 281 Ellis Street, LLC (“281 Ellis” or “Lessor”) hereby
3 submits the following Separate Statement of Undisputed Material Facts in support of its Motion
4 for Summary Judgment and/or Summary Adjudication as to the Cross-Complaint filed by
5 Defendant and Cross-Complainant Watchful, Inc. (“Watchful” or “Lessee”) and for Summary
6 Adjudication as to Watchful’s Second Affirmative Defense.
7 I. FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT IN THE CROSS-
COMPLAINT
8
9 281 Ellis Street, LLC’s Undisputed Watchful’s Response and Evidence
Material Facts and Alleged Supporting
10
Evidence
11 1. On or about January 1, 2019, 281 Ellis
and Watchful entered into a written lease
12 (“Lease”) for the premises located at 281 Ellis
13 Street, San Francisco, California. (Declaration
of Scott Wentz (“Wentz Decl.”), Ex. 1, § 1.1;
14 Declaration of P. Casey Mathews (“Mathews
15 Decl.”) Ex. 5 (Singleton Depo. Ex. 7
(Lease)).)
16
2. The Lease provides for a term of more
17
than three years that expires January 31, 2022.
18 (Wentz Decl., Ex. 1, § 1.3; Mathews Decl.
Ex. 5 (Singleton Depo. Ex. 7 (Lease)).)
19
20 3. The leased premises includes
“[a]pproximately 2,325 square feet of ground
21 floor office space and approximately 1,500
22 square feet of basement storage” space.
(Wentz Decl., Ex. 1, § 1.2(a); Mathews Decl.
23 Ex. 5 (Singleton Depo, Ex. 7 (Lease)).)
24
4. The Lessee acknowledged and agreed
25 in the Lease that “the basement portion of the
Premises shall only be used for storage.”
26
(Wentz Decl., Ex. 1, § 6.1; Mathews Decl.
27 Ex. 5 (Singleton Depo. Ex. 7 (Lease)).)
28
2828.000/1614365.5 2 Case No. CGC-20-586340
281 ELLIS STREET, LLC’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION
1 281 Ellis Street, LLC’s Undisputed Watchful’s Response and Evidence
Material Facts and Alleged Supporting
2 Evidence
3 5. The Lease requires that Lessee provide
“written notice” to Lessor of any breach by
4 Lessor. (Wentz Decl., Ex. 1, § 13.6; Mathews
Decl. Ex. 5 (Singleton Depo. Ex. 7 (Lease)).)
5
6 6. The Lease requires that Lessee’s
“written notice” of breach to Lessor specify
7
the obligation of Lessor that has not been
8 performed. (Wentz Decl., Ex. 1, § 13.6;
Mathews Decl. Ex. 5 (Singleton Depo. Ex. 7
9 (Lease)).)
10
7. The Lease provides that Lessor shall
11 have no less than 30 days to perform any
obligation of Lessor that has not been
12
performed after Lessor’s receipt of Lessee’s
13 “written notice” of breach. (Wentz Decl.,
Ex. 1, § 13.6; Mathews Decl. Ex. 5 (Singleton
14
Depo. Ex. 7 (Lease)).)
15
8. The Lease provides that Lessor “shall
16 not be deemed in breach of this Lease” unless
17 Lessor fails to perform, in no less than 30 days
after Lessor’s receipt of Lessee’s “written
18 notice,” an obligation required to be performed
19 by Lessor. (Wentz Decl., Ex. 1, § 13.6;
Mathews Decl. Ex. 5 (Singleton Depo. Ex. 7
20 (Lease)).)
21
9. The Lease requires that all notices to
22 Lessor shall be in writing and delivered to the
Lessor’s address adjacent to its signature on
23
the Lease, which is “scott@montage-
24 services.com.” (Wentz Decl., Ex. 1, § 23.1 &
p. 17; Mathews Decl. Ex. 5 (Singleton Depo.
25
Ex. 7 (Lease)).)
26
27
28
2828.000/1614365.5 3 Case No. CGC-20-586340
281 ELLIS STREET, LLC’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION
1 281 Ellis Street, LLC’s Undisputed Watchful’s Response and Evidence
Material Facts and Alleged Supporting
2 Evidence
3 10. On Friday evening, January 10, 2020,
Lessee’s Shayan Mohanty attempted to enter
4 the basement portion of the leased premises
and found the door to the basement had been
5
latched or dead bolted internally. (Mathews
6 Decl. Exs. 4 & 7 (Singleton Depo. pp. 141,
Ex. 25).)
7
8 11. On January 27, 2020, Lessor received
an email from Lessee’s John Singleton that
9 advised Lessor that Shayan Mohanty had
10 “found that the downstairs [basement door]
had been latched/deadbolted internally” the
11 other day after work on a Friday. (Wentz
12 Decl., Ex. 2; Mathews Decl., Ex. 6 (Singleton
Depo. Ex. 13).)
13
12. The next day, on January 28, 2020,
14
Raina Yee on behalf of Lessor sent to John
15 Singleton a response email, which proposed
that Lessor and Lessee agree on a time for the
16
basement door to remain unlocked, such as 8
17 a.m. to 10 p.m. daily. (Wentz Decl., Ex. 2;
Mathews Decl., Ex. 6 (Singleton Depo.
18
Ex. 13).)
19
13. Lessee never responded to the Lessor’s
20 email of January 28, 2020. (Mathews Decl.
21 Ex. 4 at 146:23-150:17 (Singleton Depo. Tr.).)
22 14. After January 27, 2020, neither John
Singleton nor the Lessee ever notified Lessor
23
of any other occasions in which the basement
24 door was latched or dead bolted internally.
(Mathews Decl. Ex. 4 at 53:15-54:9 (Singleton
25
Depo. Tr.); Wentz Decl. ¶ 7.)
26
27
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2828.000/1614365.5 4 Case No. CGC-20-586340
281 ELLIS STREET, LLC’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION
1 281 Ellis Street, LLC’s Undisputed Watchful’s Response and Evidence
Material Facts and Alleged Supporting
2 Evidence
3 15. After January 27, 2020, Lessor
arranged for the basement door to remain
4 unlocked from 8 a.m. to 10 p.m. daily. (Wentz
Decl. ¶ 8.)
5
6 16. Except for the email that Lessor
received from John Singleton on January 27,
7
2020, Lessor received no written notice from
8 Lessee of any breach by Lessor, or any
obligation that Lessor had failed to perform.
9 (Wentz Decl. ¶ 9.)
10
17. In March 2020, Lessee ceased using
11 the leased premises because of the COVID-19
pandemic. (Mathews Decl. Ex. 4 at 33:9-
12
34:14 (Singleton Depo. Tr.).)
13
18. On April 3, 2020, the Lessee’s John
14 Singleton notified Lessor that Lessee wanted
15 to renegotiate its lease including the rent
payable under the Lease. (Mathews Decl.
16 Exs. 4 & 8 (Singleton Depo. Tr. pp. 41-44,
17 159 and Ex. 27); Wentz Decl., Ex. 3.)
18 19. On July 21, 2020, Lessor received a
letter from Lessee’s attorney purporting to
19
terminate the Lease. (Wentz Decl., Ex. 4.)
20
20. On July 27, 2020, Lessor notified
21 Lessee that Lessor would not agree to
22 terminate the Lease. (Wentz Decl., Ex. 5.)
23 21. The Lease provides that in the event of
a breach of the Lease by Lessee, Lessor may
24
“[c]ontinue the Lease and Lessee’s right to
25 possession and recover the Rent as it becomes
due.” (Mathews Decl. Ex. 5 § 13.2(b)
26
(Singleton Depo. Ex. 7 (Lease)); Wentz Decl.,
27 Ex. 1.)
28
2828.000/1614365.5 5 Case No. CGC-20-586340
281 ELLIS STREET, LLC’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION
1 281 Ellis Street, LLC’s Undisputed Watchful’s Response and Evidence
Material Facts and Alleged Supporting
2 Evidence
3 22. On January 4, 2021, Lessor notified
Lessee that the Lease remained in full force
4 and effect. (Wentz Decl., Ex. 6.)
5
6
II. SECOND CAUSE OF ACTION FOR COMMON COUNTS IN THE CROSS-
7 COMPLAINT
8 Plaintiff’s Undisputed Material Facts and Watchful’s Response and Evidence
Alleged Supporting Evidence
9
23. On or about January 1, 2019, 281 Ellis
10 Street, LLC (“Lessor” or “281 Ellis”) and
Watchful, Inc. (“Lessee”) entered into a
11
written lease (“Lease”) for the premises
12 located at 281 Ellis Street, San Francisco,
California. (Wentz Decl. Ex. 1, § 1.1;
13
Mathews Decl. Ex. 5 (Singleton Depo. Ex. 7
14 (Lease)).)
15 24. Watchful’s Cross-Claim for common
16 counts is expressly based on the Lease.
(Mathews Decl. Ex. 2 (Cross-Complaint)
17 ¶ CC-1(b)(6).)
18
25. Watchful’s Cross-Complaint seeks the
19 return of the security deposit that Watchful
paid as a condition of the Lease. (Mathews
20
Decl. Ex. 2 (Cross-Complaint) ¶¶ CC-1(b)(6)
21 and CC-2.)
22 ///
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
2828.000/1614365.5 6 Case No. CGC-20-586340
281 ELLIS STREET, LLC’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION
1 III. SECOND AFFIRMATIVE DEFENSE FOR MATERIAL BREACH IN THE
ANSWER
2
281 Ellis Street, LLC’s Undisputed Watchful’s Response and Evidence
3
Material Facts and Alleged Supporting
4 Evidence
26. Watchful asserts as its second
5 affirmative defense that 281 Ellis “is not
6 entitled to the relief requested because [281
Ellis] has materially breached the terms of any
7 valid and enforceable agreement(s) between
8 Defendant and Plaintiff.” (Mathews Decl. Ex.
3 (Answer).)
9
27. On or about January 1, 2019, 281 Ellis
10
and Watchful entered into a written lease for
11 the premises located at 281 Ellis Street, San
Francisco, California. (Declaration of Scott
12
Wentz (“Wentz Decl.”), Ex. 1, § 1.1;
13 Declaration of P. Casey Mathews (“Mathews
Decl.”) Ex. 5 (Singleton Depo. Ex. 7
14
(Lease)).)
15
28. The Lease requires that Lessee provide
16 “written notice” to Lessor of any breach by
17 Lessor. (Wentz Decl., Ex. 1, § 13.6; Mathews
Decl. Ex. 5 (Singleton Depo. Ex. 7 (Lease)).)
18
29. The Lease requires that Lessee’s
19
“written notice” of breach to Lessor specify
20 the obligation of Lessor that has not been
performed. (Wentz Decl., Ex. 1, § 13.6;
21
Mathews Decl. Ex. 5 (Singleton Depo. Ex. 7
22 (Lease)).)
23 30. The Lease provides that Lessor shall
24 have no less than 30 days to perform any
obligation of Lessor that has not been
25 performed after Lessor’s receipt of Lessee’s
“written notice” of breach. (Wentz Decl.,
26
Ex. 1, § 13.6; Mathews Decl. Ex. 5 (Singleton
27 Depo. Ex. 7 (Lease)).)
28
2828.000/1614365.5 7 Case No. CGC-20-586340
281 ELLIS STREET, LLC’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION
1 281 Ellis Street, LLC’s Undisputed Watchful’s Response and Evidence
Material Facts and Alleged Supporting
2 Evidence
3 31. The Lease provides that Lessor “shall
not be deemed in breach of this Lease” unless
4 Lessor fails to perform, in no less than 30 days
after Lessor’s receipt of Lessee’s “written
5
notice,” an obligation required to be performed
6 by Lessor. (Wentz Decl., Ex. 1, § 13.6;
Mathews Decl. Ex. 5 (Singleton Depo. Ex. 7
7
(Lease)).)
8
32. On January 27, 2020, Lessor received
9 an email from Lessee’s John Singleton that
10 advised Lessor that Shayan Mohanty had
“found that the downstairs [basement door]
11 had been latched/deadbolted internally” the
12 other day after work on a Friday. (Wentz
Decl., Ex. 2; Mathews Decl., Ex. 6 (Singleton
13 Depo. Ex. 13).)
14
33. The next day, on January 28, 2020,
15 Raina Yee on behalf of Lessor sent to John
Singleton a response email, which proposed
16
that Lessor and Lessee agree on a time for the
17 basement door to remain unlocked, such as 8
a.m. to 10 p.m. daily. (Wentz Decl., Ex. 2;
18
Mathews Decl., Ex. 6 (Singleton Depo.
19 Ex. 13).)
20 34. Lessee never responded to the Lessor’s
21 email of January 28, 2020. (Mathews Decl.
Ex. 4 at 146:23-150:17 (Singleton Depo. Tr.).)
22
35. After January 27, 2020, neither John
23
Singleton nor the Lessee ever notified Lessor
24 of any other occasions in which the basement
door was latched or dead bolted internally.
25
(Mathews Decl. Ex. 4 at 53:15-54:9 (Singleton
26 Depo. Tr.); Wentz Decl. ¶ 7.)
27
28
2828.000/1614365.5 8 Case No. CGC-20-586340
281 ELLIS STREET, LLC’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION
1 281 Ellis Street, LLC’s Undisputed Watchful’s Response and Evidence
Material Facts and Alleged Supporting
2 Evidence
3 36. After January 27, 2020, Lessor
arranged for the basement door to remain
4 unlocked from 8 a.m. to 10 p.m. daily. (Wentz
Decl. ¶ 8.)
5
6 37. Except for the email that Lessor
received from John Singleton on January 27,
7
2020, Lessor received no written notice from
8 Lessee of any breach by Lessor, or any
obligation that Lessor had failed to perform.
9 (Wentz Decl. ¶ 9.)
10
11 DATED: May 21, 2021 BARTKO ZANKEL BUNZEL & MILLER
A Professional Law Corporation
12
13
14 By: /s/ Marco Quazzo
Marco Quazzo
15 Attorneys for Plaintiff and Cross-Defendant
281 ELLIS STREET, LLC
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2828.000/1614365.5 9 Case No. CGC-20-586340
281 ELLIS STREET, LLC’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION
Preview
1 MARCO QUAZZO (SBN 142182) mquazzo@bzbm.com 2 P. CASEY MATHEWS (SBN 311838) ELECTRONICALLY cmathews@bzbm.com 3 BARTKO ZANKEL BUNZEL & MILLER F I L E D A Professional Law Corporation Superior Court of California, County of San Francisco 4 One Embarcadero Center, Suite 800 San Francisco, California 94111 05/21/2021 Clerk of the Court 5 Telephone: (415) 956-1900 BY: SANDRA SCHIRO Facsimile: (415) 956-1152 Deputy Clerk 6 Attorneys for Plaintiff and Cross-Defendant 7 281 ELLIS STREET, LLC 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 12 281 ELLIS STREET, LLC, a California Case No. CGC-20-586340 Limited Liability Company, 13 281 ELLIS STREET, LLC’S SEPARATE Plaintiff, STATEMENT OF UNDISPUTED 14 MATERIAL FACTS IN SUPPORT OF v. MOTION FOR SUMMARY JUDGMENT 15 OR, IN THE ALTERNATIVE, SUMMARY WATCHFUL, INC., a Delaware corporation; ADJUDICATION AS TO WATCHFUL, 16 and DOES 1 to 10, INC.’S CROSS-COMPLAINT AND FOR SUMMARY ADJUDICATION AS TO 17 Defendants. WATCHFUL, INC.’S SECOND AFFIRMATIVE DEFENSE 18 WATCHFUL, INC., a Delaware corporation, 19 Date: August 5, 2021 Cross-Complainant, Time: 9:30 a.m. 20 Dept. 501 v. 21 Action Filed: September 1, 2020 281 ELLIS STREET, LLC, a California Trial Date: October 4, 2021 22 Limited Liability Company; and ROES 1 to 20, 23 Cross-Defendants. 24 25 26 27 28 2828.000/1614365.5 1 Case No. CGC-20-586340 281 ELLIS STREET, LLC’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION 1 Pursuant to Code of Civil Procedure section 437c(b) and California Rules of Court, 2 Rule 3.1350, Plaintiff and Cross-Defendant 281 Ellis Street, LLC (“281 Ellis” or “Lessor”) hereby 3 submits the following Separate Statement of Undisputed Material Facts in support of its Motion 4 for Summary Judgment and/or Summary Adjudication as to the Cross-Complaint filed by 5 Defendant and Cross-Complainant Watchful, Inc. (“Watchful” or “Lessee”) and for Summary 6 Adjudication as to Watchful’s Second Affirmative Defense. 7 I. FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT IN THE CROSS- COMPLAINT 8 9 281 Ellis Street, LLC’s Undisputed Watchful’s Response and Evidence Material Facts and Alleged Supporting 10 Evidence 11 1. On or about January 1, 2019, 281 Ellis and Watchful entered into a written lease 12 (“Lease”) for the premises located at 281 Ellis 13 Street, San Francisco, California. (Declaration of Scott Wentz (“Wentz Decl.”), Ex. 1, § 1.1; 14 Declaration of P. Casey Mathews (“Mathews 15 Decl.”) Ex. 5 (Singleton Depo. Ex. 7 (Lease)).) 16 2. The Lease provides for a term of more 17 than three years that expires January 31, 2022. 18 (Wentz Decl., Ex. 1, § 1.3; Mathews Decl. Ex. 5 (Singleton Depo. Ex. 7 (Lease)).) 19 20 3. The leased premises includes “[a]pproximately 2,325 square feet of ground 21 floor office space and approximately 1,500 22 square feet of basement storage” space. (Wentz Decl., Ex. 1, § 1.2(a); Mathews Decl. 23 Ex. 5 (Singleton Depo, Ex. 7 (Lease)).) 24 4. The Lessee acknowledged and agreed 25 in the Lease that “the basement portion of the Premises shall only be used for storage.” 26 (Wentz Decl., Ex. 1, § 6.1; Mathews Decl. 27 Ex. 5 (Singleton Depo. Ex. 7 (Lease)).) 28 2828.000/1614365.5 2 Case No. CGC-20-586340 281 ELLIS STREET, LLC’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION 1 281 Ellis Street, LLC’s Undisputed Watchful’s Response and Evidence Material Facts and Alleged Supporting 2 Evidence 3 5. The Lease requires that Lessee provide “written notice” to Lessor of any breach by 4 Lessor. (Wentz Decl., Ex. 1, § 13.6; Mathews Decl. Ex. 5 (Singleton Depo. Ex. 7 (Lease)).) 5 6 6. The Lease requires that Lessee’s “written notice” of breach to Lessor specify 7 the obligation of Lessor that has not been 8 performed. (Wentz Decl., Ex. 1, § 13.6; Mathews Decl. Ex. 5 (Singleton Depo. Ex. 7 9 (Lease)).) 10 7. The Lease provides that Lessor shall 11 have no less than 30 days to perform any obligation of Lessor that has not been 12 performed after Lessor’s receipt of Lessee’s 13 “written notice” of breach. (Wentz Decl., Ex. 1, § 13.6; Mathews Decl. Ex. 5 (Singleton 14 Depo. Ex. 7 (Lease)).) 15 8. The Lease provides that Lessor “shall 16 not be deemed in breach of this Lease” unless 17 Lessor fails to perform, in no less than 30 days after Lessor’s receipt of Lessee’s “written 18 notice,” an obligation required to be performed 19 by Lessor. (Wentz Decl., Ex. 1, § 13.6; Mathews Decl. Ex. 5 (Singleton Depo. Ex. 7 20 (Lease)).) 21 9. The Lease requires that all notices to 22 Lessor shall be in writing and delivered to the Lessor’s address adjacent to its signature on 23 the Lease, which is “scott@montage- 24 services.com.” (Wentz Decl., Ex. 1, § 23.1 & p. 17; Mathews Decl. Ex. 5 (Singleton Depo. 25 Ex. 7 (Lease)).) 26 27 28 2828.000/1614365.5 3 Case No. CGC-20-586340 281 ELLIS STREET, LLC’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION 1 281 Ellis Street, LLC’s Undisputed Watchful’s Response and Evidence Material Facts and Alleged Supporting 2 Evidence 3 10. On Friday evening, January 10, 2020, Lessee’s Shayan Mohanty attempted to enter 4 the basement portion of the leased premises and found the door to the basement had been 5 latched or dead bolted internally. (Mathews 6 Decl. Exs. 4 & 7 (Singleton Depo. pp. 141, Ex. 25).) 7 8 11. On January 27, 2020, Lessor received an email from Lessee’s John Singleton that 9 advised Lessor that Shayan Mohanty had 10 “found that the downstairs [basement door] had been latched/deadbolted internally” the 11 other day after work on a Friday. (Wentz 12 Decl., Ex. 2; Mathews Decl., Ex. 6 (Singleton Depo. Ex. 13).) 13 12. The next day, on January 28, 2020, 14 Raina Yee on behalf of Lessor sent to John 15 Singleton a response email, which proposed that Lessor and Lessee agree on a time for the 16 basement door to remain unlocked, such as 8 17 a.m. to 10 p.m. daily. (Wentz Decl., Ex. 2; Mathews Decl., Ex. 6 (Singleton Depo. 18 Ex. 13).) 19 13. Lessee never responded to the Lessor’s 20 email of January 28, 2020. (Mathews Decl. 21 Ex. 4 at 146:23-150:17 (Singleton Depo. Tr.).) 22 14. After January 27, 2020, neither John Singleton nor the Lessee ever notified Lessor 23 of any other occasions in which the basement 24 door was latched or dead bolted internally. (Mathews Decl. Ex. 4 at 53:15-54:9 (Singleton 25 Depo. Tr.); Wentz Decl. ¶ 7.) 26 27 28 2828.000/1614365.5 4 Case No. CGC-20-586340 281 ELLIS STREET, LLC’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION 1 281 Ellis Street, LLC’s Undisputed Watchful’s Response and Evidence Material Facts and Alleged Supporting 2 Evidence 3 15. After January 27, 2020, Lessor arranged for the basement door to remain 4 unlocked from 8 a.m. to 10 p.m. daily. (Wentz Decl. ¶ 8.) 5 6 16. Except for the email that Lessor received from John Singleton on January 27, 7 2020, Lessor received no written notice from 8 Lessee of any breach by Lessor, or any obligation that Lessor had failed to perform. 9 (Wentz Decl. ¶ 9.) 10 17. In March 2020, Lessee ceased using 11 the leased premises because of the COVID-19 pandemic. (Mathews Decl. Ex. 4 at 33:9- 12 34:14 (Singleton Depo. Tr.).) 13 18. On April 3, 2020, the Lessee’s John 14 Singleton notified Lessor that Lessee wanted 15 to renegotiate its lease including the rent payable under the Lease. (Mathews Decl. 16 Exs. 4 & 8 (Singleton Depo. Tr. pp. 41-44, 17 159 and Ex. 27); Wentz Decl., Ex. 3.) 18 19. On July 21, 2020, Lessor received a letter from Lessee’s attorney purporting to 19 terminate the Lease. (Wentz Decl., Ex. 4.) 20 20. On July 27, 2020, Lessor notified 21 Lessee that Lessor would not agree to 22 terminate the Lease. (Wentz Decl., Ex. 5.) 23 21. The Lease provides that in the event of a breach of the Lease by Lessee, Lessor may 24 “[c]ontinue the Lease and Lessee’s right to 25 possession and recover the Rent as it becomes due.” (Mathews Decl. Ex. 5 § 13.2(b) 26 (Singleton Depo. Ex. 7 (Lease)); Wentz Decl., 27 Ex. 1.) 28 2828.000/1614365.5 5 Case No. CGC-20-586340 281 ELLIS STREET, LLC’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION 1 281 Ellis Street, LLC’s Undisputed Watchful’s Response and Evidence Material Facts and Alleged Supporting 2 Evidence 3 22. On January 4, 2021, Lessor notified Lessee that the Lease remained in full force 4 and effect. (Wentz Decl., Ex. 6.) 5 6 II. SECOND CAUSE OF ACTION FOR COMMON COUNTS IN THE CROSS- 7 COMPLAINT 8 Plaintiff’s Undisputed Material Facts and Watchful’s Response and Evidence Alleged Supporting Evidence 9 23. On or about January 1, 2019, 281 Ellis 10 Street, LLC (“Lessor” or “281 Ellis”) and Watchful, Inc. (“Lessee”) entered into a 11 written lease (“Lease”) for the premises 12 located at 281 Ellis Street, San Francisco, California. (Wentz Decl. Ex. 1, § 1.1; 13 Mathews Decl. Ex. 5 (Singleton Depo. Ex. 7 14 (Lease)).) 15 24. Watchful’s Cross-Claim for common 16 counts is expressly based on the Lease. (Mathews Decl. Ex. 2 (Cross-Complaint) 17 ¶ CC-1(b)(6).) 18 25. Watchful’s Cross-Complaint seeks the 19 return of the security deposit that Watchful paid as a condition of the Lease. (Mathews 20 Decl. Ex. 2 (Cross-Complaint) ¶¶ CC-1(b)(6) 21 and CC-2.) 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 2828.000/1614365.5 6 Case No. CGC-20-586340 281 ELLIS STREET, LLC’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION 1 III. SECOND AFFIRMATIVE DEFENSE FOR MATERIAL BREACH IN THE ANSWER 2 281 Ellis Street, LLC’s Undisputed Watchful’s Response and Evidence 3 Material Facts and Alleged Supporting 4 Evidence 26. Watchful asserts as its second 5 affirmative defense that 281 Ellis “is not 6 entitled to the relief requested because [281 Ellis] has materially breached the terms of any 7 valid and enforceable agreement(s) between 8 Defendant and Plaintiff.” (Mathews Decl. Ex. 3 (Answer).) 9 27. On or about January 1, 2019, 281 Ellis 10 and Watchful entered into a written lease for 11 the premises located at 281 Ellis Street, San Francisco, California. (Declaration of Scott 12 Wentz (“Wentz Decl.”), Ex. 1, § 1.1; 13 Declaration of P. Casey Mathews (“Mathews Decl.”) Ex. 5 (Singleton Depo. Ex. 7 14 (Lease)).) 15 28. The Lease requires that Lessee provide 16 “written notice” to Lessor of any breach by 17 Lessor. (Wentz Decl., Ex. 1, § 13.6; Mathews Decl. Ex. 5 (Singleton Depo. Ex. 7 (Lease)).) 18 29. The Lease requires that Lessee’s 19 “written notice” of breach to Lessor specify 20 the obligation of Lessor that has not been performed. (Wentz Decl., Ex. 1, § 13.6; 21 Mathews Decl. Ex. 5 (Singleton Depo. Ex. 7 22 (Lease)).) 23 30. The Lease provides that Lessor shall 24 have no less than 30 days to perform any obligation of Lessor that has not been 25 performed after Lessor’s receipt of Lessee’s “written notice” of breach. (Wentz Decl., 26 Ex. 1, § 13.6; Mathews Decl. Ex. 5 (Singleton 27 Depo. Ex. 7 (Lease)).) 28 2828.000/1614365.5 7 Case No. CGC-20-586340 281 ELLIS STREET, LLC’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION 1 281 Ellis Street, LLC’s Undisputed Watchful’s Response and Evidence Material Facts and Alleged Supporting 2 Evidence 3 31. The Lease provides that Lessor “shall not be deemed in breach of this Lease” unless 4 Lessor fails to perform, in no less than 30 days after Lessor’s receipt of Lessee’s “written 5 notice,” an obligation required to be performed 6 by Lessor. (Wentz Decl., Ex. 1, § 13.6; Mathews Decl. Ex. 5 (Singleton Depo. Ex. 7 7 (Lease)).) 8 32. On January 27, 2020, Lessor received 9 an email from Lessee’s John Singleton that 10 advised Lessor that Shayan Mohanty had “found that the downstairs [basement door] 11 had been latched/deadbolted internally” the 12 other day after work on a Friday. (Wentz Decl., Ex. 2; Mathews Decl., Ex. 6 (Singleton 13 Depo. Ex. 13).) 14 33. The next day, on January 28, 2020, 15 Raina Yee on behalf of Lessor sent to John Singleton a response email, which proposed 16 that Lessor and Lessee agree on a time for the 17 basement door to remain unlocked, such as 8 a.m. to 10 p.m. daily. (Wentz Decl., Ex. 2; 18 Mathews Decl., Ex. 6 (Singleton Depo. 19 Ex. 13).) 20 34. Lessee never responded to the Lessor’s 21 email of January 28, 2020. (Mathews Decl. Ex. 4 at 146:23-150:17 (Singleton Depo. Tr.).) 22 35. After January 27, 2020, neither John 23 Singleton nor the Lessee ever notified Lessor 24 of any other occasions in which the basement door was latched or dead bolted internally. 25 (Mathews Decl. Ex. 4 at 53:15-54:9 (Singleton 26 Depo. Tr.); Wentz Decl. ¶ 7.) 27 28 2828.000/1614365.5 8 Case No. CGC-20-586340 281 ELLIS STREET, LLC’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION 1 281 Ellis Street, LLC’s Undisputed Watchful’s Response and Evidence Material Facts and Alleged Supporting 2 Evidence 3 36. After January 27, 2020, Lessor arranged for the basement door to remain 4 unlocked from 8 a.m. to 10 p.m. daily. (Wentz Decl. ¶ 8.) 5 6 37. Except for the email that Lessor received from John Singleton on January 27, 7 2020, Lessor received no written notice from 8 Lessee of any breach by Lessor, or any obligation that Lessor had failed to perform. 9 (Wentz Decl. ¶ 9.) 10 11 DATED: May 21, 2021 BARTKO ZANKEL BUNZEL & MILLER A Professional Law Corporation 12 13 14 By: /s/ Marco Quazzo Marco Quazzo 15 Attorneys for Plaintiff and Cross-Defendant 281 ELLIS STREET, LLC 16 17 18 19 20 21 22 23 24 25 26 27 28 2828.000/1614365.5 9 Case No. CGC-20-586340 281 ELLIS STREET, LLC’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION