Motion-Secondary: Novalk, LLC -v- Cirit et al Print

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     ANDREW RAUCH, APC,
     A Professional Law Corporation                                                              SCANNED
     Andrew K. Rauch,       Esq.   (SBN 137657)
     110 West   C   Street, Suite    2200                                         F   l   L E   D
                                                                          SUPERIOR COURT 0F CA u:
     San Diego,     CA 92101                                               COUNTY o: SAN BERNknoonsgm
                                                                            SAN BERNAWNO DISTRICT
     Telephone: (619) 515-1 140
     Facsimile: (619) 235-9100
                                                                                 NOV 2    4‘ 7.021


     Attorneys for Plaintiff,
     NOVALK, LLC
                                                                             SANDRA PORTILLO, DEPUTY




                           SUPERIOR COURT OF THE STATE OF CALIFORNIA

                   COUNTY OF SAN BERNARDINO — SAN BERNARDINO DISTRICT
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      NOVALK, LLC,                                                 Case No.      CIVSB 2122277
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                                                                   REPLY BRIEF OF PLAINTIFF,
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                                                                   NOVALK, LLC IN SUPPORT OF
                        Plaintiff,                                 APPLICATION FOR PRELIMINARY
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                                                                   INJUNCTION

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                                                                   [IMAGED]
                                                                                                                             I
                                                                   General Jurisdiction — Civil                                        II:
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      SEMIH        FATMA HANDAN CIRIT;
                CIRIT;                                             Jury Trial Requested 0n all Issues so Triable
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      DENIS BARAN CIRIT; SARINA BERNA                                                                                        l'I—IHI




      SARGENT; C-TECH, INC.; NC QUEEN,                             Judge: Honorable Wilfred          J.   Schneider,   Jr.
                                                                                                                                       u:
      INC.; YUN KYUNG; and, DOES 1-100,                            Dept: S32
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      inclusive~    »                                              Date: December 2, 2021
                                                                   Time: 9:00 a.m.
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                        Defendants.
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                                                                                                                                       v:
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                                                                                                                             X
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             Plaintiff provides this reply brief in         suppon of it motion       for a preliminary injunction.
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     Defendant’s     new   supplemental opposition filed yet before the             last   hearing provides a resolution
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     that can satisfy the needs      of all   parties.   Defendants have    now revealed that they are using one-
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     third of the   pylon signs t0 promote a prohibited use          (a   gym)   at the   Shopping Center. As shown
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     below, the Court can enjoin that prohibited use and allow the Plaintiff’s tenant to use that space
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     as previously authorized        by the City of San Bemardino during the pendency of this                 action.
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                              REPLY BRIEF OF PLAINTIFF, NOVALK, LLC IN SUPPORT OF
                                  APPLICATION FOR PRELIMINARY INJUNCTION
             In this fashion, the Court can create a                        “win-win” solution that             is   supported by the record

     created, in part,       by the defendants themselves. This solution                           is   more   fully explained below.


             TWO SIGNS ARE THE SUBJECT OF THIS MOTION
             Some      representations                   by defendants and/or        their counsel       have created unnecessary

     confusion Which this reply brief seeks to clarify the facts to fashion this preferred solution.

             The present motion                        relates to   two pylon    signs.    Both pylon signs contain 3 signage

     positions   which advertise businesses                         at the subject   shopping center. AS‘noted              in prior briefing,


     the shopping center           is   comprised 0f multiple separate fee parcels. There                            is   one pylon sign on

     Stirling physically located                      on a property now owned by one 0f the                Cirit Defendants.          The other

10   sign (the Highland sign)                    is   located near Highland        which     is   physically located on the property

11   owned by NC Queen,                 Inc.


12           Defendants have attempted to confuse the Court that the sign permit obtained by the

13   Plaintiffs tenant, BioLife,                      was   for the sign   on   Plaintiff’s property only.           However,    as clearly


14   shown   in the exhibits to the declaration                       0f Mr. White, the permits obtained from the City 0f San

15   Bernardino included permits for the use 0f a space 0n the pylon signs.

16           When these            signs             were originally    erected,   most 0f the shopping center was owned by a

17   single entity, Highland Plaza Partners (“Plaza”) as                             shown on Exhibit          G to the Cirit Declaration 0f
18   November     13,      2021    (“Cirit Declaration”).                The pylon signs were placed on the                  properties   When

19   they were both         owned by                 Plaza. Also,    shown 0n Exhibit        G to the Cirit Declaration,             in Section   20

20   thereof, the restrictions recorded against the                        Shopping Center were covenants running with the

21   land which   “.               bind every person having any
                       .   .will                                                   fee, leasehold, 0r other interest in              any portion

22   0f the Shopping Center.                 .   .   .and (5) will inure to the benefit 0f the parties and their respective

23   successors and assigns.             .   .
                                                 ..” (Id.)



24           The ownership              later          changed as the Plaza parcels were sub-divided,                     yet, the   common
25   obligations remained.              The           signs currently provide advertisements for a grocery store (Cardenas

26   Market) and a         gym     (Planet Fitness). Neither of these                     two businesses       are located     on a fee   interest


27   owned by the          defendants. There                 is   no evidence    in the   record that either of these two businesses

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                                    REPLY BRIEF OF PLAINTIFF, NOVALK, LLC IN SUPPORT OF
                                        APPLICATION FOR PRELIMINARY INJUNCTION