On October 26, 2022 a
Motion,Ex Parte
was filed
involving a dispute between
Broussard, Shirley,
Yeshua And Sweets Bakery,
and
Kerner, Jay,
Lake Arrowhead Village Retail Owner, L.P.,
for Business Tort/Unfair Business Practice Unlimited
in the District Court of San Bernardino County.
Preview
Dana M. Andreoli (State Bar No. 262068)
K. Cohoe (State Bar N0. 296844)
Jill
STEYER LOWENTHAL BOODROOKAS
ALVAREZ & SMITH LLP
AWN 235 Pine Street, 15th Floor
San Francisco, California 94104
Telephone: (41 5) 421-3400
Facsimile: (415) 421-2234
E-mail: dandreoli@steyerlaw.com
Jcoh0e@steyer1aw.c0m
KOOONO‘NU}
Wm
Attorneys for Defendants Lake Arrowhead Village Retail
_.;-;j;i~ggflf
g.
$74; k. :54;
3‘s". wt. bsiw
e93
qu
x3?!
DWI. 'Tv
Owner, L.P. and Jay Kerner
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN BERNARDINO - CIVIL DIVISION
10
11
YESHUA AND SWEETS BAKERY; and Case No. CIVSB2216786
12 SHIRLEY BROUSSARD, Assigned for all purposes t0: Hon. David E.
Driscoll
13 Plaintiffs,
DEFENDANTS’ OPPOSITION TO
14 V. PLAINTIFF’S
MOTION FOR INJUNCTIVE
RELIEF
15 LAKE ARROWHEAD VILLAGE
RETAIL OWNER, L.P.; and JAY Date: March 29, 2023
16 KERNER, Time: 8:30 am.
Dept: $22 — SBJC
17 Defendants.
18 Action Filed: October 26, 2022
Trial Date: Not set
19
20
21
22
23
24
25
26
27
28
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR
INJUNCTIVE RELIEF
V \a
Defendants Lake Arrowhead Village Retail Owner, L.P. (“Landlord”) and
Jay Kerner
hereby submit this memorandum in opposition to plaintiff Shirley Broussard’s (“Broussard”)l
motion for inj unctive relief.
I. INTRODUCTION
Broussard’s motion seeking the extraordinary remedy 0f an
injunction allowing her t0
remain in possession of leased commercial premises beyond the expiration
0fthe lease term, despite
her failure to comply with the terms of the lease, including
refusing to pay rent for the premises,
must be denied. Broussard does not submit any admissible evidence in support 0f her motion, and
therefore completely fails to meet her burden establishing a likelihood of prevailing on the merits
10 or irreparable harm. People v. Pacific Land Research C0. (1977) 20 Cal. 3d 10, 21 (“To secure a
11 preliminary injunction the [moving party is] required t0 show, by evidence which would be
12 admissible in open court. . . .”).
13 Moreover, the Court lacks authority to issue a mandatory injunction
that “compel[s] a
14 landowner over objection t0 rent his property 0r t0 refrain in perpetuity from terminating a tenancy”
15 (Yee v. City ofEscondido, Cal. (1 992) 503 U.S. 5 1 9, 528), or that increases the obligations ofparties
16 t0 a contract beyond express terms (Textile
its v. Coleman (1954) 122 Cal.App.2d 756, 760 (“n0
17 court has authority to. .write into a lease material terms
.
which. .would greatly broaden a lessee’s
.
18 rights”)); Cf Cal. Civ. Code §1954.31(c)(1) (public entity may not require a landlord 0r tenant t0
19 extend the term of a lease without their mutual, written
consent). Broussard’s right to possession
20 ofthe leased premises terminated at the expiration ofthe term ofthe lease as she agreed in the lease,
21 and Landlord is entitled to exclusive possession now that the lease has expired. Cal. Civ. Code §793
22 (action for possession of real property may be made at any time and without notice after the right
23 to re-enter has accrued). Consequently, under no theory is Broussard entitled to retain possession
24 0f the Premises following the expiration 0f the lease.
25 In the unlikely event that the Court is inclined to issue an order permitting Broussard to
26 remain in possession of the leased premises despite the expiration
of the lease, Broussard should
27
I
Purported plaintiff “Yeshua and Sweets Bakery” is a dba and is
28 not a legal entity authorized t0 d0
business 0r file suits in the State of California, and is not a
party t0 the subject commercial lease.
2
DEFENDANTS’ OPPOSITION TO PLATNTIFF’S MOTION FOR INJUNCTIVE RELIEF
Document Filed Date
March 16, 2023
Case Filing Date
October 26, 2022
Category
Business Tort/Unfair Business Practice Unlimited
For full print and download access, please subscribe at https://www.trellis.law/.
Preview
Dana M. Andreoli (State Bar No. 262068) K. Cohoe (State Bar N0. 296844) Jill STEYER LOWENTHAL BOODROOKAS ALVAREZ & SMITH LLP AWN 235 Pine Street, 15th Floor San Francisco, California 94104 Telephone: (41 5) 421-3400 Facsimile: (415) 421-2234 E-mail: dandreoli@steyerlaw.com Jcoh0e@steyer1aw.c0m KOOONO‘NU} Wm Attorneys for Defendants Lake Arrowhead Village Retail _.;-;j;i~ggflf g. $74; k. :54; 3‘s". wt. bsiw e93 qu x3?! DWI. 'Tv Owner, L.P. and Jay Kerner SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN BERNARDINO - CIVIL DIVISION 10 11 YESHUA AND SWEETS BAKERY; and Case No. CIVSB2216786 12 SHIRLEY BROUSSARD, Assigned for all purposes t0: Hon. David E. Driscoll 13 Plaintiffs, DEFENDANTS’ OPPOSITION TO 14 V. PLAINTIFF’S MOTION FOR INJUNCTIVE RELIEF 15 LAKE ARROWHEAD VILLAGE RETAIL OWNER, L.P.; and JAY Date: March 29, 2023 16 KERNER, Time: 8:30 am. Dept: $22 — SBJC 17 Defendants. 18 Action Filed: October 26, 2022 Trial Date: Not set 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR INJUNCTIVE RELIEF V \a Defendants Lake Arrowhead Village Retail Owner, L.P. (“Landlord”) and Jay Kerner hereby submit this memorandum in opposition to plaintiff Shirley Broussard’s (“Broussard”)l motion for inj unctive relief. I. INTRODUCTION Broussard’s motion seeking the extraordinary remedy 0f an injunction allowing her t0 remain in possession of leased commercial premises beyond the expiration 0fthe lease term, despite her failure to comply with the terms of the lease, including refusing to pay rent for the premises, must be denied. Broussard does not submit any admissible evidence in support 0f her motion, and therefore completely fails to meet her burden establishing a likelihood of prevailing on the merits 10 or irreparable harm. People v. Pacific Land Research C0. (1977) 20 Cal. 3d 10, 21 (“To secure a 11 preliminary injunction the [moving party is] required t0 show, by evidence which would be 12 admissible in open court. . . .”). 13 Moreover, the Court lacks authority to issue a mandatory injunction that “compel[s] a 14 landowner over objection t0 rent his property 0r t0 refrain in perpetuity from terminating a tenancy” 15 (Yee v. City ofEscondido, Cal. (1 992) 503 U.S. 5 1 9, 528), or that increases the obligations ofparties 16 t0 a contract beyond express terms (Textile its v. Coleman (1954) 122 Cal.App.2d 756, 760 (“n0 17 court has authority to. .write into a lease material terms . which. .would greatly broaden a lessee’s . 18 rights”)); Cf Cal. Civ. Code §1954.31(c)(1) (public entity may not require a landlord 0r tenant t0 19 extend the term of a lease without their mutual, written consent). Broussard’s right to possession 20 ofthe leased premises terminated at the expiration ofthe term ofthe lease as she agreed in the lease, 21 and Landlord is entitled to exclusive possession now that the lease has expired. Cal. Civ. Code §793 22 (action for possession of real property may be made at any time and without notice after the right 23 to re-enter has accrued). Consequently, under no theory is Broussard entitled to retain possession 24 0f the Premises following the expiration 0f the lease. 25 In the unlikely event that the Court is inclined to issue an order permitting Broussard to 26 remain in possession of the leased premises despite the expiration of the lease, Broussard should 27 I Purported plaintiff “Yeshua and Sweets Bakery” is a dba and is 28 not a legal entity authorized t0 d0 business 0r file suits in the State of California, and is not a party t0 the subject commercial lease. 2 DEFENDANTS’ OPPOSITION TO PLATNTIFF’S MOTION FOR INJUNCTIVE RELIEF