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  • ELDA AGAVE, LLC VS. DICK MAK ET AL CONTRACT/WARRANTY document preview
  • ELDA AGAVE, LLC VS. DICK MAK ET AL CONTRACT/WARRANTY document preview
  • ELDA AGAVE, LLC VS. DICK MAK ET AL CONTRACT/WARRANTY document preview
  • ELDA AGAVE, LLC VS. DICK MAK ET AL CONTRACT/WARRANTY document preview
  • ELDA AGAVE, LLC VS. DICK MAK ET AL CONTRACT/WARRANTY document preview
  • ELDA AGAVE, LLC VS. DICK MAK ET AL CONTRACT/WARRANTY document preview
  • ELDA AGAVE, LLC VS. DICK MAK ET AL CONTRACT/WARRANTY document preview
  • ELDA AGAVE, LLC VS. DICK MAK ET AL CONTRACT/WARRANTY document preview
						
                                

Preview

1 DAVID B. TILLOTSON (State Bar # 148162) Dtillotson@lpslaw.com 2 RAVI D. SAHAE (State Bar # 276113) Rsahae@lpslaw.com ELECTRONICALLY 3 LELAND. PARACHINI, STEINBERG, MATZGER & MELNICK, LLP F I L E D Superior Court of California, 4 199 Fremont Street - 21st Floor County of San Francisco San Francisco, California 94105 5 Telephone: (415) 957-1800 01/07/2020 Clerk of the Court Facsimile: (415) 974-1520 BY: EDNALEEN ALEGRE 6 Deputy Clerk Attorneys for ELDA AGAVE, EEC 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 ELDA AGAVE, LLC, Case No. CGC-19-579238 12 Plaintiff, -DISCOVERY- 13 vs. DECLARATION OF RAVI D. SAHAE IN 14 DICK and JESAMINE MAK, et aE, SUPPORT OF MOTION TO COMPEL, FOR DEEMED ADMISSIONS, AND FOR 15 Defendants. SANCTIONS 16 Date: January 30, 2020 Time: 9:00 a.m. 17 Dept: 302 18 Action Filed: September 12, 2019 19 Trial Date: None Set 20 I, Ravi D. Sahae, declare: 21 1. I am an attorney licensed to practice law in the State of California, and an associate of 22 Leland Parachini et ah, attorneys of record for plaintiff Elda Agave, LLC ("Plaintiff) in this 23 action. The following facts and circumstances are known personally to me, and if called upon to 24 do so, I could and would testify competently thereto. 25 2. Attached hereto as Exhibit A is a true and correct copy of Plaintiffs Requests for 26 Admission to Defendant Dick Mak, Set One. 27 3. Attached hereto as Exhibit B is a true and correct copy of Plaintiffs Requests for 28 {ELDAAG/0001/PLDMO/01530941 .DOCX} DECLARATION OF RAVI D. SAHAE IN SUPPORT OF MOTION TO COMPEL, FOR DEEMED ADMISSIONS, AND FOR SANCTIONS Page 1 1 Admission to Defendant Jesamine Mak, Set One. 2 4. Attached hereto as Exhibit C is a true and correct copy of Plaintiffs Form Interrogatories 3 - General to Defendant Dick Mak, Set One. 4 5. Attached hereto as Exhibit D is a true and correct copy of Plaintiff s Form Interrogatories 5 - General to Defendant Jesamine Mak, Set One. 6 6. Attached hereto as Exhibit E is a true and correct copy of Plaintiffs Special 7 Interrogatories to Defendant Dick Mak, Set One. 8 7. Attached hereto as Exhibit F is a true and correct copy of Plaintiffs Special Interrogatories 9 to Defendant Jesamine Mak, Set One. 10 8. Attached hereto as Exhibit G is a true and correct copy of Plaintiffs Requests for 11 Production of Documents to Defendant Dick Mak, Set One. 12 9. Attached hereto as Exhibit H is a true and correct copy of Plaintiff s Requests for 13 Production of Documents to Defendant Jesamine Mak, Set One. 14 10. Attached hereto as Exhibit I is a true and correct copy of the Declaration of Ravi D. Sahae 15 re Additional Discovery (Requests for Admission) served with respect to the RFAs to Defendant 16 Dick Mak. 17 11. Attached hereto as Exhibit J is a true and correct copy of the Declaration of Ravi D. Sahae 18 re Additional Discovery (Requests for Admission) served with respect to the RFAs to Defendant 19 Jesamine Mak. 20 12. We served the above discovery and associated declarations by personal delivery on 21 November 13, 2019. Attached hereto as Exhibit K is a true and correct copy of the proof of such 22 service. 23 13. Attached hereto as Exhibit L is a true and correct copy of the email correspondence 24 between myself and Mr. Chow, counsel for Defendants, between December 15, 2019 and 25 December 16, 2019. 26 14. Attached hereto as Exhibit M is a true and correct copy of the email correspondence 27 between myself and Mr. Chow, between December 28, 2019 and December 30, 2019. 28 15. We did not receive responses to any of the above discovery by January 3, 2020, nor have {ELDAAG/0001/PLDMO/01530941.DOCX) 2 DECLARATION OF RAVI D. SAHAE IN SUPPORT OF MOTION TO COMPEL, FOR DEEMED ADMISSIONS, AND FOR SANCTIONS Page 2 1 we received any responses as of the date of this filing. 2 16. In preparing this motion and the supporting papers, I spent four hours. I further expect to 3 spend an additional 3 hours reviewing any opposition, preparing a reply, and appearing at the 4 hearing. My rate on this matter is $320 per hour. Accordingly, I request $2,240 in sanctions. 5 6 I certify the foregoing is true under penalty of perjury under the laws of the State of 7 California. Executed January 7, 2020. 8 9 10 Ravi D. Sahae 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 {ELD AAG/000 l/PLDMO/01530941 .DOCX} 3 DECLARATION OF RAVI D. SAHAE IN SUPPORT OF MOTION TO COMPEL, FOR DEEMED ADMISSIONS, AND FOR SANCTIONS Page 3 LAW OFFICES OF LELAND, PARACHINI, STEINBERG, MATZGER & MELNICK, LLP 199 FREMONT STREET - 21st FLOOR SAN FRANCISCO, CALIFORNIA 94105 TEL (415) 957-1800• FAX (41 5) 974-1520 N> to to to to to to to 00 -4 ON -t*- LO to o NO 00 ON Ul CO to NO 00 ON w HO • cr Page 4 1 DAVID B. TILLOTSON (State Bar # 148162) Dtillotson@lpslaw.com 2 RAVI D. SAHAE (State Bar # 276113) Rsahae@lpslaw.com 3 LELAND. PARACHINI, STEINBERG, MATZGER & MELNICK, LLP 4 199 Fremont Street - 21st Floor San Francisco, California 94105 5 Telephone: (415) 957-1800 Facsimile: (415) 974-1520 6 Attorneys for ELDA AGAVE, LLC 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 ELDA AGAVE, LLC, Case No. CGC-19-579238 12 Plaintiff, PLAINTIFF'S REQUESTS FOR ADMISSION TO DEFENDANT DICK 13 vs. MAK, SET ONE 14 DICK and JESAMINE MAK, et ah. Action Filed: September 12, 2019 15 Defendants. Trial Date: None Set 16 17 PROPOUNDING PARTY: ELDA AGAVE, LLC 18 RESPONDING PARTY: DICK MAK 19 SET NUMBER: ONE 20 Pursuant to Code of Civil Procedure § 2033.010 et seq., Plaintiff ELDA AGAVE, LLC 21 ("Propounding Party" or "Elda") requests that Defendant DICK MAK ("Responding Party") 22 answer the following requests for admission, within 30 days. 23 In answering these requests, Responding Party is required to not just answer based on his 24 own personal knowledge, but to investigate and consult all sources of information reasonably 25 available to him. {Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 751-52; Grace v. 26 Mansourian (2015) 240 Cal.App.4th 523, 529-32).) 27 DEFINITIONS 28 1. YOU, YOUR, and YOURSELF, mean and refer to Responding Party, and includes { ELDAAG/0001 /DISC/01517017. DOCX} PLAINTIFF'S REQUESTS FOR ADMISSION TO DEFENDANT DICK MAK, SET ONE _ Page 5 1 his agents, representatives, and any other person or entity acting on his behalf. 2 2. ALL means any, all, and/or every. 3 3. CONCERNING means referring to, alluding to, responding to, connected 4 with, commenting on, relating to, in respect of, about, regarding, discussing, involving, showing, 5 describing, reflecting, recording, analyzing, evaluating, or constituting. 6 4. DOCUMENT or DOCUMENTS means and refers to the original and any non­ 7 identical copy of every kind of written, printed, typed, recorded or graphic matter, however 8 produced or reproduced, including without limitation: (1) ALL correspondence, letters, 9 facsimiles, electronic communications, memoranda, instructions, and communications and (2) 10 ALL records, schedules, reports, surveys, calculations, transcriptions, notes, appointment books, 11 calendars, specifications, contracts, accounting records, billing records, invoices, statements, bills, 12 checks, vouchers, ledgers, accounts, data compilations from which information can be obtained or 13 translated through detection devices into reasonably usable form, electronic or magnetic media 14 (including disks and tapes), computer input or output, or any other tangible things and (3) ALL 15 “Writings” as that term is defined in Evidence Code Section 250, which reads as follows: 16 “Writing” means handwriting, typewriting, printing, photostating, photographing, photocopying, 17 transmitting by electronic mail or facsimile, and every other means of recording upon any tangible 18 thing, any form of communication or representation, including letters, words, pictures, sounds, or 19 symbols, or combinations thereof, and any record thereby created, regardless of the manner in 20 which the record has been stored.” DOCUMENTS or “Writings” (as so defined) shall include 21 ALL drafts of documents or writings defined above, including any with handwritten or other 22 markings or notations of any kind and any copy of a document or writing that renders it non­ 23 identical. 24 5. COMMUNICATION or COMMUNICATIONS means and refers to the act or fact 25 of communicating between or among any persons or entities, including telephone conversations, 26 letters, memoranda, notes, summaries, photographs, audio tapes, video tapes, emails, or other 27 materials or memorials of communication, meetings, or any occasion of joint or mutual presence, 28 as well as the transfer of any DOCUMENT from one person or entity to another person or entity. {ELDAAG/0001/DlSC/01517017.DOCX} 2 PLAINTIFF'S REQUESTS FOR ADMISSION TO DEFENDANT DICK MAK, SET ONE Page 6 1 6. ASSIGNMENT means the Assignment and Assumption of Lease attached hereto 2 as Exhibit A. 3 7. BUILDING means the building located at the corner of 16th Street and Guerrero 4 Street in San Francisco, CA (which is known as both 3198 16th Street, San Francisco, CA, and 389 5 Guerrero Street, San Francisco, CA). 6 8. ELBA means Elda Agave, LLC. In the context of acts performed by, with, or 7 against Elda Agave, LLC, or in the context of communications to or from Elda Agave, LLC, the 8 term ELDA includes Elda Agave, LLC's managers, members, agents, representatives, attorneys, 9 and anyone else acting on its behalf. 10 9. FEBRUARY LETTER means the February 27, 2019 letter by David B. Tillotson, 11 attached hereto as Exhibit B. 12 10. FIRST OPTION EXERCISE means the February 1, 2019 email by Jay De Natale 13 attached hereto as Exhibit C. 14 11. LEASE means the Lease Agreement attached hereto as Exhibit D. 15 12. MARCH LETTER means the March 22, 2019 letter by David B. Tillotson, 16 attached hereto as Exhibit E. 17 13. OPTION means the option stated in Section 2.02 of the LEASE. 18 14. ORDINANCE means Chapter 4D of the San Francisco Existing Building Code, 19 titled Mandatory Earthquake Retrofit of Wood-Frame Buildings, and includes all previous 20 codifications of said chapter. 21 15. PREMISES means the first floor and mezzanine of the building located in the 22 BUILDING. 23 16. RETROFIT means the furnishing of materials or performance of labor 24 CONCERNING the BUILDING, performed or contemplated for the purpose of complying with 25 the ORDINANCE. 26 17. RONEN LETTER means the letter by Hillary Ronen dated November 4, 2019 and 27 attached hereto as Exhibit F. 28 18. SECOND OPTION EXERCISE means the letter from Jay De Natale attached {ELDAAG/0001/DISC/01517017.DOCX} 3 PLAINTIFF'S REQUESTS FOR ADMISSION TO DEFENDANT DICK MAK, SET ONE Page 7 1 hereto as Exhibit G. 2 REQUESTS FOR ADMISSION 3 Elda Agave, LLC 4 REQUEST FOR ADMISSION NO. 1: 5 Admit that YOU want ELDA to continue to possess the PREMISES for the next five 6 years. 7 REQUEST FOR ADMISSION NO. 2: 8 Admit that YOU want ELDA to be successful in the PREMISES for the next five years. 9 REQUES T FOR ADMISSION NO. 3: 10 Admit that in October or November of 2019 YOU told Rafael Mandelman (or someone 11 representing him) that YOU want ELDA to continue to possess the PREMISES for the next five 12 years. 13 REQUEST FOR ADMISSION NO. 4: 14 Admit that in October or November of 2019 YOU told Rafael Mandelman (or someone 15 representing him) that YOU want ELDA to be successful in the PREMISES for the next five 16 years. 17 REQUEST FOR ADMISSION NO. 5: 18 Admit that YOU received the RONEN LETTER. 19 REQUEST FOR ADMISSION NO. 6: 20 Admit that prior to YOU executing the ASSIGNMENT, YOU understood that ELDA 21 intended to exercise the OPTION 22 REQUEST FOR ADMISSION NO. 7: 23 Admit that YOU met with ELDA on July 2, 2018. 24 REQUEST FOR ADMISSION NO. 8: 25 Admit that at YOUR July 2, 2018 meeting with ELDA, ELDA provided you with 26 renderings of its planned tenant improvements. 27 REQUEST FOR ADMISSION NO, 9: 28 Admit that at YOUR July 2, 2018 meeting with ELDA, ELDA provided you with {ELDAAG/0001/DISC/01517017.DOCX} 4 PLAINTIFF'S REQUESTS FOR ADMISSION TO DEFENDANT DICK MAK, SET ONE Page 8 1 information about its business plan. 2 REQUEST FOR ADMISSION NO. 10: 3 Admit that at YOUR July 2, 2018 meeting with ELBA, YOU told ELBA you were 4 impressed and excited by the planned tenant improvements. 5 REQUEST FOR ADMISSION NO. 11: 6 Admit that at YOUR July 2, 2018 meeting with ELBA, YOU told ELBA you were 7 committed to seeing ELBA be successful. 8 REQUEST FOR ADMISSION NO. 12: 9 Admit that as of July 2, 2018, YOU understood that ELBA would be investing hundreds of 10 thousands of dollars to improve the PREMISES. 11 REQUEST FOR ADMISSION NO. 13: 12 Admit that as of July 2, 2018, YOU understood that the purpose of ELBA assuming the 13 LEASE and improving the PREMISES was to exercise the OPTION and continue to possess the 14 PREMISES for at least five years. 15 Seismic Retrofit Ordinance 16 REQUEST FOR ADMISSION NO. 14: 17 Admit that Jaynry Mak and Jesamine Mak do not have an attorney-client relationship 18 CONCERNING the BUILBING. 19 REQUEST FOR ADMISSION NO. F5: 20 Admit that Jaynry Mak and Bick Mak do not have an attorney-client relationship 21 CONCERNING the BUILBING. 22 REQUEST FOR ADMISSION NO. 16: 23 Admit that the ORDINANCE requires seismic retrofit work to be performed on the 24 BUILBING. 25 REQUEST FOR ADMISSION NO. 17; 26 Admit that prior to YOU executing the ASSIGNMENT, YOU did not inform ELBA that 27 the ORBINANCE requires seismic retrofit work to be performed on the BUILBING. 28 {ELDAAG/000 l/DISC/01517017.DOCX} 5 PLAINTIFF'S REQUESTS FOR ADMISSION TO DEFENDANT DICK MAK, SET ONE Page 9 1 REQUEST FOR ADMISSION NO. 18: 2 Admit that prior to ELDA taking possession of the PREMISES, YOU did not inform 3 ELBA that the ORDINANCE requires seismic retrofit work to be performed on the BUILDING. 4 REQUEST FOR ADMISSION NO. 19: 5 Admit that as of December 1, 2018, YOU had not complied with the ORDINANCE with 6 respect to the BUILDING. 7 REQUEST FOR ADMISSION NO. 20: 8 Admit that prior to YOU executing the ASSIGNMENT, YOU did not inform ELDA that 9 YOU had not yet complied with the ORDINANCE with respect to the BUILDING. 10 REQUEST FOR ADMISSION NO. 21: 11 Admit that prior to ELDA taking possession of the PREMISES, YOU did not inform 12 ELDA that YOU had not complied with the ORDINANCE with respect to the BUILDING. 13 REQUEST FOR ADMISSION NO. 22: 14 Admit that the ORDINANCE requires seismic retrofit work on the BUILDING to be IS completed by no later than October 1, 2020. 16 REQUEST FOR ADMISSION NO. 23: 17 Admit that YOU intend not to comply with the ORDINANCE with respect to the 18 BUILDING by October 1, 2020. 19 REQUEST FOR ADMISSION NO. 24: 20 Admit that YOU do not have the capability to comply with the ORDINANCE by October 21 1,2020. 22 REQUEST FOR ADMISSION NO. 25: 23 Admit that on February 19, 2019, YOU acknowledged to ELDA that the planned 24 RETROFIT would disrupt ELDA's business. 25 REQUEST FOR ADMISSION NO. 26: 26 Admit that on February 19, 2019, YOU and ELDA discussed changes to the planned 27 RETROFIT with the goal of minimizing disruption to ELDA's business. 28 {ELDAAG/0001/DIS C/01517017.DOCX} g PLAINTIFFS REQUESTS FOR ADMISSION TO DEFENDANT DICK MAK, SET ONE Page 10 X REQUEST FOR ADMISSION NO. 27; 2 Admit that on February 19, 2019, in order to minimize disruption to ELDA's business 3 YOU agreed that the frame on the building corner of 16th and Guerrero would be tucked, out of 4 view in the comer behind an existing wooden pillar. 5 REQUEST FOR ADMISSION NO. 28: 6 Admit that on February 19, 2019, in order to minimize disruption to ELDA's business 7 YOU agreed that a frame on the front of the PREMISES would be installed in the stairwell going 8 to the basement on 16th street so the frame itself would not be “inside” the PREMISES. 9 REQUEST FOR ADMISSION NO. 29: 10 Admit that on February 19, 2019, in order to minimize disruption to ELDA's business 11 YOU agreed that the frame in the rear of the building on Guerrero would be tucked in the comer 12 of the space where the mezzanine stairway wall and the Guerrero St. stair well meet. 13 REQUEST FOR ADMISSION NO. 30: 14 Admit that on Febmary 19, 2019, in order to minimize disruption to ELDA's business 15 YOU agreed that a frame in the front of the PREMISES would be tucked on the opposite wall 16 behind the kitchen door and tucked away as best as possible. 17 REQUEST FOR ADMISSION NO. 31: 18 Admit that on Febmary 25, 2019 Jesamine Mak spoke with Jay De Natale at the 19 PREMISES, with Hannah Collins and Eric Ochoa both present. 20 REQUEST FOR ADMISSION NO, 32: 21 Admit that on February 25, 2019, Jesamine Mak told Jay De Natale that ELDA would not 22 have to pay rent during the delay caused by the RETROFIT. 23 REQUEST FOR ADMISSION NO. 33: 24 Admit that on February 25, 2019, Jesamine Mak told Jay De Natale that ELDA that she 25 wanted ELDA to be successful. 26 REQUEST FOR ADMISSION NO. 34: 27 Admit that on March 11, 2019, YOU informed ELDA that YOU intended not to perform 28 the RETROFIT. {ELDAAG/D0O1/DISC/0I517017 DOCX) 7 PLAINTIFF'S REQUESTS FOR ADMISSION TO DEFENDANT DICK MAK, SET ONE Page 11 1 REQUEST FOR ADMISSION NO. 35: 2 Admit that on March 21, 2019, Dick Mak told Eric Ochoa that the RETROFIT would be 3 performed in two to five years, and Dick Mak would pay the resulting fines in the interim. 4 Rent 5 REQUEST FOR ADMISSION NO. 36: 6 Admit that ELDA did not have to commence paying rent until January 1, 2019. 7 REQUEST FOR ADMISSION NO, 37: 8 Admit that ELDA timely paid all rent due for January 2019 and February 2019. 9 REQUEST FOR ADMISSION NO. 38: 10 Admit that YOU did not, until August 16, 2019, mention anything to ELDA anything 11 about the rent being unpaid for March 2019. 12 REQUEST FOR ADMISSION NO. 39: 13 Admit that YOU did not, until August 16, 2019, mention anything to ELDA about the rent 14 being unpaid for April 2019. 15 REQUEST FOR ADMISSION NO. 40: 16 Admit that YOU did not, until August 16, 2019, mention anything to ELDA about the rent 17 being unpaid for May 2019. 18 REQUEST FOR ADMISSION NO. 41: 19 Admit that YOU did not, until August 16 2019, mention anything to ELDA about the 20 following words on page 3 of the FEBRUARY LETTER: "Rent abatement until the retrofit work 21 is completed". 22 REQUEST FOR ADMISSION NO. 42: 23 Admit that YOU did not, until August 16 2019, mention anything to ELDA about the 24 following words on page 4 of the MARCH LETTER: "Elda's rent shall continue to be abated until 25 the work is complete". 26 REQUEST FOR ADMISSION NO. 43: 27 Admit that on August 16, 2019 YOU asked about the March, April, and May 2019 rent 28 payments but not the June 2019 rent payment. {ELDAAG/0001/D1SC/01517017.DOCX} g PLAINTIFF'S REQUESTS FOR ADMISSION TO DEFENDANT DICK MAK, SET ONE Page 12 1 Lease Option 2 REQUEST FOR ADMISSION NO. 44: 3 Admit that YOU received the FIRST OPTION EXERCISE in February 2019. 4 REQUEST FOR ADMISSION NO. 45: 5 Admit that at the time YOU received the FIRST OPTION EXERCISE, it was a valid and 6 effective exercise of the OPTION. 7 REQUEST FOR ADMISSION NO. 46: 8 Admit that at the time YOU received the FIRST OPTION EXERCISE, the OPTION had 9 not yet been declared null or void. 10 REQUEST FOR ADMISSION NO. 47: 11 Admit that YOU received the SECOND OPTION EXERCISE in May 2019. 12 REQUEST FOR ADMISSION NO. 48: 13 Admit that at the time YOU received the SECOND OPTION EXERCISE, it was a valid 14 and effective exercise of the OPTION. 15 REQUEST FOR ADMISSION NO. 49: 16 Admit that at the time YOU received the SECOND OPTION EXERCISE, the OPTION 17 had not yet been declared null or void. 18 REQUEST FOR ADMISSION NO. 50: 19 Admit that under Sections 2.02 and 3.02 of the LEASE, YOU were required to give notice 20 to ELDA if the rent was unpaid more than five days. 21 REQUEST FOR ADMISSION NO. 51: 22 Admit that under Sections 2.02 and 3.02 of the LEASE it is a condition precedent, to the 23 OPTION being deemed null and void, that YOU give notice to ELDA if the rent was unpaid more 24 than five days. 25 REQUEST FOR ADMISSION NO. 52: 26 Admit that ELDA will suffer "great" "injury", according to what YOU contend to be the 27 meaning of the quoted words in Cal. Code Civ. Pro. § 526(a)(2), if evicted from the PREMISES in 28 2019. {ELDAAG/0001/D1SC/01517017 DOCX} 9 PLAINTIFF'S REQUESTS FOR ADMISSION TO DEFENDANT DICK MAK, SET ONE Page 13 1 REQUEST FOR ADMISSION NO. 53: 2 Admit that ELBA will suffer "irreparable'' "injury", according to what YOU contend to be 3 the meaning of the quoted words in Cal. Code Civ. Pro. § 526(a)(2), if evicted from the 4 PREMISES in 2019. 5 REQUEST FOR ADMISSION NO. 54: 6 Admit that it would be "extremely difficult to ascertain the amount of compensation" due 7 to ELBA, according to what YOU contend to be the meaning of the quoted words in Cal. Code 8 Civ. Pro. § 526(a)(5), if ELBA is evicted from the PREMISES in 2019. 9 10 11 LELANB, PARACHINI, STEINBERG, N ICK, LLP 12 13 14 By: Bavid B. Tillotson IS Ravi B. Sahae Attorneys for ELBA AGAVE, LLC 16 17 18 19 20 21 22 23 24 25 26 27 28 {ELDAAG/000 l®lSC/01517017.DOCX) 10 PLAINTIFFS REQUESTS FOR ADMISSION TO DEFENDANT DICK MAK, SET ONE Page 14 EXHIBIT A Page 15 ASSIGNMENT AND ASSUMPTION OF LEASE This ASSIGNMENT AND ASSUMPTION OF LEASE (this “Agreement”) is made __________ , 2018, by and between Joseph Hargrave md Chino-Amcricano, LLC, a California limited liability company (collectively the “Assignor”), and Elda Agave, LLC, a California limited liability company, EWn-Agove-thnl Jay de Natale,an individual/md Eric Ochoa^an ir.dividual^'As- signec”). 30 $0 Recitals WHEREAS Dick and Jesaraiae Mak, as Lessor, and Assignor as Lessee, executed that certain Lease dated October 15,2013 (the “Lease”); and WHEREAS by the terms of the Lease, a copy of which, is attached to this assignment as Exhibit A and incorporated herein, the property commonly known as the ground floor of the Building located at 3198 16'1' Street, San Fran-isoo, Califomiu, including the dining room, first floor office and at­ tached first floor mezzanine and the closet at the base of the stairs in the adjacent alleyway (exclud­ ing the building’s basement except a portion allocated to the water heater of the leased premises) (the “Premises") was leased to Assignor as Lessee for a tem of five (5) year's and ten (10) months commending on January 1,2014 and terminating October 31,2019, subject to extension pursuant to two (2) consecutive five (5) year* optiops to renew; and WHEREAS Assignor now desires to assign the Lease to Assignee, and Assignee desires to accept the assignment of the Lease, effective as of the Effective Date (as defined hereinbelow); NOW THEREFORE, Assignor and Assignee agree as follows: Assignment For value received in connection with the purchase of the assets of Assignor's restaurant and bar' located on the Premises by Assignee (tlic “Asset Purchase”), Assignor assigns and transfers to As­ signee, effective as of the Effective Date, ell of Assignor's right, title, and interest in and to the Lease, and Assignee agrees to and does accept tire assignment. Except as amended by the terms of this Assignment, effective as of the Effective Date, Assignee expressly assumes and agrees to keep, perform, and fulfill all the terms, covenants, conditions, and obligations, required to be kept, per­ formed, and fulfilled by Assignor as Lessee under the Lease, including the making of all payments duo to or payable on behalf of Lessor under' the Lease when due and payable, Amended Term/s of the Lease The parties hereto hereby agree to amend Ural certain section of tire lease identified as Article 6,01 Repair, Maintenance and Alterations to provide that Assignee shell forthwith be responsible and financiaily liable for any damage to the roof caused by Assignee and/or its HVAC equipment and appurtenances. Page i of 3 i Page 16 . I Effusive Date The Aaslgnmenl elmll become effective at of tho riatooflltc closing of that certain escrow for the Ascei 1'urclmco, lieltl by Llndn Chrlstmin, Fidelity National Tlllo, <150 Primrose Rcl„ Du/llngmna, ('.'A 94010. Escrow No. PSMO-0101800160 (the "Uffective Date"). In the event llml the nbove ijescribed escrow folle to close, Ihiit Agnscmenl nnd Ota Astlgontcnl ooniainat tlicitin ahall become Ineffective and be deemed mill mid void. Ttiltt dncumeiu may be signed In cmmier-parts without affecting the validity licceof. Executed at Son Frtmclgco, Cnllfomfa, on die day and year Em above written. ASSIGNOR. Joseph Hargrove Individually and on behalf of Chino -Americano, EEC os the CEO of Its Managin', Taeollclaus Management, Ind, ASSIGNEE • Brie Oehon. inrfiv'CUtsally Subject: 3198 16th Lease Option #1 Date: February 1,2019 at 3:20:21 PM PST To: Jaynry Mak Hi Jaynry, I'm writing to inform you of our intention (Elda Agave LLC, Jonathan "Jay" De Natale & Eric Ochoa) to exercise the first option in the lease (section 2.02). We intend to extend the term of the lease until 10/31 /2024. Jay De Natale 602-738-8621 Page 24 EXHIBIT D Page 25 u as;: agreement This lease agreement ("Lease") is made this K -h day of OcLW/_________, 2013, by and between Dick and Jcsaminc Mul; as "Lessor",and Jne Haramve. Chinn-Americano. LLC .and/or its Peimitted Transferee (as set forth in section 10.03 below) as "Lessee". The parties do hereby agree as follows: ARTICLE 1. LEASE OF PREMISES I.flL Premises. The Lessor owns a building situated in the City and County of San Francisco, State of California,and located at 3198-16th Street (@ Guerrero Street)(the "Building"). The Building consists of two above ground floors as well as a basement located below the two above ground floors. Lessor leases to Lessee and Lessee hires from Lessor the following described premises (the"Premises") within the Building: the crmiml llanr of ihe Buildiuc includin'-’ the diiiiuu mom. iIk- i'rsi floor office, the attached firs:floor mex./.unne and the closet m the Iwso ol ihe stairs in ihc alley wav (which closei v.'iH he used for drv storage fnlvl The Premises docs not include the Building's basement nor does il mcliKk- the stairway and nllcvwnv I incline, to the BuiUlim;'s basement. 1 lowevcr, noiwitlislnriding the foretiuine.ihe nonioii of the basement where the I.esseeN water lienlcr is located fan area in :lic fomi cfo square oranproNiinatelv two feet bv twe tecil is pan of the Premises.Lessee shall have absolutely no use of the stairway to the basement or the basement itself for storage of any items except for Lessee's water heater including, but not limited to grease, furniture, produce, meatsand trash. Lessee's use of the stairway to the basement or the basement itself is for ingress, egress, and for the storageof Lessee's water heater only. Lessee shall have no use of the alleyway except for 1) as needed access to and use of appropriate trash receptacles belonging to Lessee including the consolidation of recyclable items such as cardboard boxes which are outside the confines of the appropriate trash receptacles and 2) access to and the temporary storage of deliveries to and pick up from the restaurant including but not limited to laundry, foodstuffs, wine, beer, and liquor. ARTICLE 2. TERM OF LEASE 2.01. Term. The initialterm of the Lease ("Term") shall be for a period of five years andH) months, commencing on January 1, 2M14 and terminating on ”)ctobcr 31. 2019. unless extended by Lessee exercising the Options described below. 2.02. Option. Lessee is granted the option to extend the Term of this Lease fortwo (2) consecutive five (5) year periods (each an "Option") by giving written notice of exercise o