Complaint,Petition: ROBERT M. SNUKAL VS 926 BROADWAY, LLC

On December 28, 2023 a Complaint,Petition was filed involving a dispute between Snukal Robert M., and 926 Broadway Llc, for Other Non-Personal Injury/Property Damage tort (General Jurisdiction) in the District Court of Los Angeles County.

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1 NORTON ROSE FULBRIGHT US, LLP
JAMES H. TURKEN (SBN 89618)
2 james.turken@nortonrosefulbright.com
NEIL P. THAKOR (SBN 308743)
3 neil.thakor@nortonrosefulbright.com
555 South Flower Street, Forty-First Floor
4 Los Angeles, California 90071
Telephone: (213) 892-9200
5 Facsimile: (213) 892-9494

6 NORTON ROSE FULBRIGHT US, LLP
KATHERINE G. CONNOLLY (SBN 313640)
7 katie.connolly@nortonrosefulbright.com
555 California Street, Suite 3300
8 San Francisco, California 94104
Telephone: (628) 231-6800
9 Facsimile: (628) 231-6799

10 Attorneys for Plaintiff ROBERT M. SNUKAL

11 SUPERIOR COURT OF THE STATE OF CALIFORNIA

12 FOR THE COUNTY OF LOS ANGELES – WEST DISTRICT

13
ROBERT M. SNUKAL, an individual; Case No. _____________
14
Plaintiff, COMPLAINT FOR:
15
vs. (1) Breach of Contract
16 (2) Wrongful Retention of Security
926 BROADWAY, LLC, a California limited Deposit in Violation of California
17 liability company; Civil Code Section 1950.7
(3) Money Had and Received
18 Defendant.
19

COMPLAINT
1
Plaintiff Robert M. Snukal (“Plaintiff” or “Tenant”) hereby complains of Defendant 926
2
Broadway, LLC (“Defendant” or “Landlord”) and alleges as follows:
3
JURISDICTION AND VENUE
4
1. This Court has jurisdiction over this action pursuant to California Code of Civil
5
Procedure section 410.10 on the basis that the wrongful acts complained of herein occurred within
6
California. Further, the amount in controversy exceeds the jurisdictional minimum of this Court.
7
2. Venue is proper in this Court pursuant to Code of Civil Procedure section 395 on the
8
basis that the wrongful acts and injuries complained of in this Complaint occurred within Los Angeles
9
County, and specifically, in Santa Monica, California.
10
THE PARTIES
11
3. Plaintiff Robert M. Snukal is a local businessman and entrepreneur residing in Palm
12
Desert, California.
13
4. Defendant 926 Broadway, LLC is a California limited liability company with its
14
principal place of business in Santa Monica, California.
15
FACTS RELEVANT TO ALL CAUSES OF ACTION
16
5. On or about January 31, 2017, Robert Snukal, along with his son and his son’s business
17
partner (collectively, “Tenants”), entered into a ten (10) year lease with Landlord (the “Lease
18
Agreement”) for purposes of relocating his son’s Mexican restaurant named Tacos Punta Cabras, to
19
930B/930C Broadway Avenue (“930 Broadway”) in Santa Monica, California. A true and correct
20
copy of the Lease Agreement is attached hereto as Exhibit A.
21
6. In early 2017, Plaintiff, his son, and Mr. Mittleman negotiated the terms of the lease
22
with Landlord, represented by its agent Fortuna Asset Management. Under the materials terms of the
23
Lease Agreement, 930 Broadway was leased with a monthly base rent of $12,960.00. The parties
24
agreed to a security deposit in excess of one month’s rent on the basis that there would be only one
25
personal guarantor. The security deposit was set at $200,000.
26
7. Paragraph 5 of the Lease Agreement states:
27
Security Deposit. Lessee shall deposit with Lessor upon execution hereof
28 the Security Deposit as security for Lessee's faithful performance of its

1
COMPLAINT
1 obligations under this Lease. If Lessee fails to pay Rent, or otherwise
Defaults under this Lease, Lessor may use, apply or retain all or any portion
2 of said Security Deposit for the payment of any amount already due Lessor,
3 for Rents which will be due in the future, and/ or to reimburse or
compensate Lessor for any liability, expense, loss or damage which Lessor
4 may suffer or incur by reason thereof. If Lessor uses or applies all or any
portion of the Security Deposit, Lessee shall within 10 days after written
5 request therefor deposit monies with Lessor sufficient to restore said
Security Deposit to the full amount required by this Lease. If the Base Rent
6 increases during the term of this Lease, Lessee shall, upon written request
7 from Lessor, deposit additional monies with Lessor so that the total amount
of the Security Deposit shall at all times bear the same proportion to the
8 increased Base Rent as the initial Security Deposit bore to the initial Base
Rent. Should the Agreed Use be amended to accommodate a material
9 change in the business of Lessee or to accommodate a sublessee or
assignee, Lessor shall have the right to increase the Security Deposit to the
10
extent necessary, in Lessor's reasonable judgment, to account for any
11 increased wear and tear that the Premises may suffer as a result thereof. If
a change in control of Lessee occurs during this Lease and following such
12 change the financial condition of Lessee is, in Lessor's reasonable
judgment, significantly reduced, Lessee shall deposit such additional
13 monies with Lessor as shall be sufficient to cause the Security Deposit to be
at a commercially reasonable level based on such change in financial
14
condition. Lessor shall not be required to keep the Security Deposit
15 separate from its general accounts. Within 90 days after the expiration or
termination of this Lease, Lessor shall return that portion of the Security
16 Deposit not used or applied by Lessor. No part of the Security Deposit shall
be considered to be held in trust, to bear interest or to be prepayment for
17 any monies to be paid by Lessee under this Lease.
18 8. Paragraph 9.8 of the Lease Agreement provides: “Upon termination of this Lease
19 pursuant to Paragraph 6.2(g) or Paragraph 9, … Lessor shall, in addition, return to Lessee so much of
20 Lessee’s Security Deposit as has not been, or is not then required to be, used by Lessor.”
21 9. On or about February 23, 2017, Plaintiff paid the $200,000 security deposit via wire
22 transfer to Landlord. Landlord confirmed receipt of the monies.
23 10. On March 28, 2019, the Tenants and TCP II, LLC brought suit against Landlord and
24 Fortuna Asset Management for Breach of Contract, Fraudulent Inducement, Breach of the Implied
25 Covenant of Good Faith and Fair Dealing; Reformation; Constructive Eviction; and Unlawful
26 Business Practices alleging that Landlord and Fortuna Asset Management schemed to induce Robert
27 Snukal, Daniel Snukal, Mark Mittleman and TCP II, LLC into a long-term commercial lease in a unit
28 rife with structural (and non-structural) problems known to Landlord and Fortuna Asset Management

2
COMPLAINT
1
and undisclosed to the Tenants.
2
11. Landlord cross-complained for Breach of Written Contract alleging that it had
3
sustained lost profits, lost rents, repair costs, and other incidental damages of no less than $500,000.
4
12. After an eight-day jury trial, a jury rendered a special verdict awarding Robert and the
5
others $1.5 million in compensatory damages. The jury found that:
6
• The plaintiffs in that action did all or substantially all of the significant things the
7
Lease Agreement required of them.
8
• Landlord and Fortuna Asset Management breached the Lease Agreement, and did
9
so either intentionally or by gross negligence.
10
• Landlord and Fortuna Asset Management failed to disclose facts to the plaintiffs
11
and intended to deceive them by concealing facts.
12
• The plaintiffs informed Landlord and Fortuna Asset Management of the problems
13
with the Premises, Landlord and Fortuna Asset Management failed to resolve the
14
problems, and the plaintiffs had to leave out of necessity after providing Landlord
15
and Fortuna Asset Management a reasonable time to remedy.
16
• Landlord and Fortuna Asset Management acted with malice, oppression or fraud.
17
13. The jury found for Robert and the others on all four claims before them: Breach of
18
Contract, Fraudulent Inducement, Breach of the Implied Covenant of Good Faith and Fair Dealing,
19
and Constructive Eviction.
20
14. The jury found against Landlord on its claim for Breach of Written Contract finding
21
that Landlord did not do all, or substantially all, of the significant things the contract required it to do.
22
The jury awarded Landlord no damages.
23
15. The entry of judgment in Case No. 19SMCV00603 is attached as Exhibit B. Landlord
24
moved the Court for post-judgment relief, which was denied as to the merits of the claims described
25
above. Attached as Exhibit C hereto is the notice of ruling on the post-judgment motions in Case No.
26
19SMCV00603.
27
16. On or about October 17, 2023, more than 90 days after the entry of the judgment on
28

3
COMPLAINT
1
July 10, 2023, Plaintiff demanded that Landlord return to him the $200,000 security deposit on that
2
basis that there had been a determination that Landlord had no basis for withholding any portion of
3
the security deposit.
4
17. Shortly thereafter, Landlord stated that it would not return the security deposit.
5
18. The security deposit was not a subject of the Complaint or Cross-Complaint and no
6
evidence of it was presented at trial.
7
FIRST CAUSE OF ACTION
8
Breach of Contract
9
(By Plaintiff Against Defendant)
10
19. Plaintiff realleges and incorporates by reference each allegation contained in
11
paragraphs 1 through 18 above as though set forth fully herein.
12
20. On or about January 31, 2017, Plaintiff entered into a ten (10) year lease agreement
13
with Defendant.
14
21. Plaintiff paid the $200,000 security deposit as required under the terms of the Lease
15
Agreement.
16
22. The Lease Agreement has been terminated and Plaintiff has vacated the Premises.
17
23. As determined by a jury, at all relevant times, Plaintiff performed its obligations under
18
the Lease Agreement.
19
24. More than 90 says after entry of the judgment on the basis of the jury’s verdict
20
determining that Plaintiff had performed its obligations under the Lease Agreement, Plaintiff requested
21
the return of the security deposit from Defendant.
22
25. Defendant refused to return the security deposit.
23
26. Plaintiff is informed and believes, and on that basis alleges, that Landlord materially
24
breached its contractual obligations under the Lease Agreement by failing to return any portion of the
25
security deposit to Plaintiff.
26
27. As a direct, proximate, and foreseeable result of Landlord’s breach of the Lease
27
Agreement, Plaintiff has suffered damages in the full amount of the security deposit.
28

4
COMPLAINT
1
28. The Lease Agreement also contains an attorneys’ fees provision at Paragraph 31, which
2
entitles the “Prevailing Party” to fees in “an action or proceeding involving the Premises whether
3
founded in tort, contract or equity, or to declare rights hereunder.”
4
SECOND CAUSE OF ACTION
5
Wrongful Retention of Security Deposit in Violation of California Civil Code Section 1950.7
6
(By Plaintiff Against Defendant)
7
29. Plaintiff realleges and incorporates by reference each allegation contained in
8
paragraphs 1 through 28 above as though set forth fully herein.
9
30. Plaintiff is informed and believes, and on that basis alleges, that at all relevant times,
10
California Civil Code section 1950.7, et seq. was in full force and effect, governing the terms and
11
conditions of the Lease Agreement, and binding upon Landlord.
12
31. California Civil Code section 1950.7, subdivision (c), provides as follows:
13
(c) The landlord may claim of the payment or deposit only those amounts
14 as are reasonably necessary to remedy tenant defaults in the payment of
rent, to repair damages to the premises caused by the tenant, or to clean
15 the premises upon termination of the tenancy, if the payment or deposit is
made for any or all of those specific purposes.
16
…
17 (2) If the claim of the landlord upon the payment or deposit is only for
defaults in the payment of rent and the security deposit exceeds the
18 amount of one month’s rent plus a deposit amount clearly described as the
payment of the last month’s rent, then any remaining portion of the
19
payment or deposit in excess of an amount equal to one month’s rent shall
20 be returned to the tenant no later than two weeks after the date the landlord
receives possession of the premises, with the remainder to be returned or
21 accounted for within 30 days from the date the landlord receives
possession of the premises.
22
32. Defendant has possession of the Premises.
23
33. Plaintiff requested the return of the security deposit from Defendant.
24
34. Defendant refused to return the security deposit.
25
35. There is no basis on which Defendant may retain any portion of the security deposit.
26
36. Defendant has failed to provide an accounting.
27
37. California Civil Code section 1950.7, subdivision (f), provides that “[t]he bad faith
28

5
COMPLAINT
1
retention by a landlord or transferee of a payment or deposit or any portion thereof, in violation of this
2
section, may subject the landlord or the transferee to damages not to exceed two hundred dollars
3
($200), in addition to any actual damages.”
4
38. Plaintiff is informed and believes, and on that basis alleges, that Landlord’s refusal to
5
return the security deposit or provide any accounting to Plaintiff, is a violation of California Civil
6
Code section 1950.7.
7
39. As a result of Landlord’s unlawful retention of Plaintiff’s security deposit in violation
8
of California Civil Code section 1950.7, Plaintiff has suffered damages in the full amount of the
9
security deposit, the $200 statutory penalty pursuant to California Civil Code section 1950.7,
10
subdivision (f), and all damages and civil penalties as authorized by law.
11
THIRD CAUSE OF ACTION
12
Money Had and Received
13
(By Plaintiff Against Defendant)
14
40. Plaintiff realleges and incorporates by reference each allegation contained in
15
paragraphs 1 through 39 above as though set forth fully herein.
16
41. Plaintiff is informed and believes, and on that basis alleges, that on or about February
17
23, 2017, Defendant received monies in the form of a security deposit and one month’s rent that was
18
intended to be used for the benefit of Plaintiff in accordance with the Lease Agreement and California
19
Civil Code section 1950.7.
20
42. Plaintiff is informed and, on that basis alleges, that the security deposit paid to
21
Defendant was not used for the benefit of Plaintiff.
22
43. To date, none of the security deposit monies paid by Plaintiff to Defendant has been
23
returned to Plaintiff.
24
//
25
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26
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27
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28

6
COMPLAINT
1
WHEREFORE, Plaintiff demands judgment against Defendant for the following:
2
1. For return of the $200,000 security deposit, in full;
3
2. The $200 penalty authorized by California Civil Code § 1950.7, subdivision (f);
4
3. For an award of attorneys’ fees according to proof;
5
4. For pre- and post-judgment interest as allowed by law;
6
5. For costs of suit incurred herein; and
7
6. For such other and further relief as the Court deems just and proper.
8

9
NORTON ROSE FULBRIGHT US LLP
10 DATED: December 14, 2023

11
By:
12 James H. Turken
james.turken@nortonrosefulbright.com
13 555 South Flower Street, Forty-First Floor
Los Angeles, California 90071
14 Telephone: (213) 892-9200
Facsimile: (213) 892-9494
15
Attorney for Plaintiff
16

7
COMPLAINT
EXHIBIT A
AIR COMMERCIAL REAL ESTATE ASSOCIATION

STANDARD MULTI-TENANT SHOPPING CENTER LEASE - NET
1. Basic Provisions ("Basic Provisions").
1.1 Parties: This Lease ("Lease"), dated for reference purposes only _J_a_n_u_a_r_y~_3_0~,_2_0_1_7_ _ _ _ _ _ _ _ _ _ __
is made by and between 9 2 6 BROADWAY, LLC

- - - ~ - - - - - ~ ~ - - ~ ~ ~ - - - ~ ~ - - ~ - ~ - - - ~ ~ - - - ~ ~ - - - - ~ - - - ~ ~ - ("Lessor')
and Robert M. Snukal, Daniel J. Snukal and Mark D. Mittleman, jointly and severally, d/b/a
Tacos Punta Cabras
("Lessee")
(collectively the "Parties", or individually a "Party").
1.2 Premises: That certain portion of the Shopping Center (as defined below), including all improvements therein or to be provided by
Lessor under the terms of this Lease, commonly known by the street address of 93 OB/ 93 0C Broadway Ave
located in the City of Santa Monica , County of Los Angeles , State of
California , with zip code 90401 , as o"tliAes oA Exhibit attaches hereto ("Premises")
and generally described as (describe briefly the nature of the Premises): approximately 3,456 rentable square feet of
s ace

In addition to Lessee's rights to use and occupy the Premises as hereinafter specified, Lessee shall have non-exclusive rights to the Common Areas
(as defined in Paragraph 2.7 below) as hereinafter specified, but shall not have any rights to the roof, exterior walls or utility raceways of the building
containing the Premises ("Building") or to any other buildings in the Shopping Center. The Premises and the Building are situated within the Shopping
Center known as Broadwa Plaza The Premises, the Building,
the Common Areas and all other buildings and improvements within said Shopping Center, together with the land upon which they are located, are
herein collectively referred to as the "Shopping Center." (See also Paragraph 2). The Project contains approximately 20,B56 square feet of commercial
rentable area,
1.3 Term: 10 years and 0 months ("Original Term")
commencing March 1, 2 0 1 7
-------------- ("Commencement Date") and ending February 28, 2027
("Expiration Date"). (See also Paragraph 3)
1.4 Early PessessieA: If the Promises are a•,ailablo Lessee may have A0A oxsl"si>Ss<>sA1AlfSs-lL"3s,;ssSess,ss,g,rr''-!sHB~rr-J,•al of any slorago lank iastallod by or for 6ossoe. 60sso0 shall also remeve frnm IRe Premises any and all
lala~ardeus Substaases breught anta tho Premises by ar for 6ossoo, or any thirel party (0J1sopt lala~arelous SsbstaaseG whish wero elopositeel Yia
unelorgrnunel migratiea from aroas outsiele of the Promises) to the lo,.el spesifieel in /\pplisablo Roquirmeats. Trade f'ixtures sRall remain tho prnperty of
bosseo and shall be remo,.ed by 60sso0. Any porssaal preporty of 6essoo aol remevod ea er bofore IRo expiraliea Qate er any oa~ier lormiaatiea sale
shall be doemod lo ha,•o bo0a allaaeoaod by 6oss00 and may be dispesed of or retained by 60sser as 60ssor may Elosire. The failure by Lessee to
timely vacate the Premises pursuant to this Paragraph 7.4(c) without the express written consent of Lessor shall constitute a holdover under the
provisions of Paragraph 26 below.
8. Insurance; Indemnity.
8.1 Payment of Premiums. The cost of the premiums for the insurance policies required to be carried by Lessor, pursuant to
Paragraphs 8.2(b), 8.3(a) and 8,3(b), shall be a Common Area Operating Expense. Premiums for policy periods commencing prior to, or extending
beyond, the term of this Lease shall be prorated to coincide with the corresponding Start Date or Expiration Date.
8.2 Liability Insurance.
(a) Carried by Lessee. Lessee shall obtain and keep in force a Commercial General Liability policy of insurance protecting
Lessee and Lessor as an additional insured against claims for bodily injury, personal injury and property damage based upon or arising out of the
ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be on an occurrence basis
providing single limit coverage in an amount not less than $1,000,000 per occurrence with an annual aggregate of not less than $2,000,000. Lessee
shall add Lessor as an additional insured by means of an endorsement at least as broad as the Insurance Service Organization's "Additional
Insured-Managers or Lessors of Premises" Endorsement. The policy shall not contain any intra-insured exclusions as between insured persons or
organizations, but shall include coverage for liability assumed under this Lease as an "insured contract" for the performance of Lessee's indemnity
obligations under this Lease. The limits of said insurance shall not, however, limit the liability of Lessee nor relieve Lessee of any obligation hereunder.
Lessee shall provide an endorsement on its liability policy(ies) which provides that its insurance shall be primary to and not contributory with any similar
insurance carried by Lessor, whose insurance shall be considered excess insurance only.
(b) Carried by Lessor. Lessor shall maintain liability insurance as described in Paragraph 8,2(a), in addition to, and not in
lieu of, the insurance required to be maintained by Lessee. Lessee shall not be named as an additional insured therein.
8.3 Property Insurance - Building, Improvements and Rental Value.
(a) Building and Improvements. Lessor shall obtain and keep in force a policy or policies of insurance in the name of
Lessor, with loss payable to Lessor, any ground-lessor, and to any Lender insuring loss or damage to the Premises. The amount of such insurance
shall be equal to the full insurable replacement cost of the Premises, as the same shall exist from time to time, or the amount required by any Lender,
but in no event more than the commercially reasonable and available insurable value thereof. Lessee Owned Alterations and Utility Installations, Trade
Fixtures, and Lessee's personal property shall be insured by Lessee not by Lessor. If the coverage is available and commercially appropriate, such
policy or policies shall insure against all risks of direct physical loss or damage (except the perils of flood and/or earthquake unless required by a
Lender), including coverage for debris removal and the enforcement of any Applicable Requirements requiring the upgrading, demolition, reconstruction
or replacement of any portion of the Premises as the result of a covered loss. Said policy or policies shall also contain an agreed valuation provision in
lieu of any coinsurance clause, waiver of subrogation, and inflation guard protection causing an increase in the annual property insurance coverage
amount by a factor of not less than the adjusted U.S. Department of Labor Consumer Price Index for All Urban Consumers for the city nearest to where
the Premises are located. If such insurance coverage has a deductible clause, the deductible amount shall not exceed $5,000 per occurrence.
(b) Rental Value. Lessor shall also obtain and keep in force a policy or policies in the name of Lessor with loss payable to
Lessor and any Lender, insuring the loss of the full Rent for one year with an extended period of indemnity for an additional 180 days ("Rental Value
Insurance"). Said insurance shall contain an agreed valuation provision in lieu of any coinsurance clause, and the amount of coverage shall be
adjusted annually to reflect the projected Rent otherwise payable by Lessee, for the next 12 month period.
(c) Adjacent Premises. Lessee shall pay for any increase in the premiums for the property insurance of the Building and for
the Common Areas or other buildings in the Shopping Center if said increase is caused by Lessee's acts, omissions, use or occupancy of the
Premises.
(d) Lessee's Improvements. Since Lessor is the Insuring Party, Lessor shall not be required to insure Lessee Owned
Alterations and Utility Installations unless the item in question has become the property of Lessor under the terms of this Lease.
8.4 Lessee's Property; Business Interruption Insurance; Worker's Compensation Insurance.
(a) Property Damage. Lessee shall obtain and maintain insurance coverage on all of Lessee's personal property, Trade
Fixtures, and Lessee Owned Alterations and Utility Installations. Such insurance shall be full replacement cost coverage with a deductible of not to
exceed $1,000 per occurrence. The proceeds from any such insurance shall be used by Lessee for the replacement of personal property, Trade
Fixtures and Lessee Owned Alterations and Utility Installations.
(b) 8usiRoss IAleFruptieR bes see shall obtain and maiRlaia lass ef iasomo aael 0,<'e otiligations to both tl'le bessor and the bessoe: {a) I\ fidysia,y eYty of
wtA1ost Gare, integFity, hoaesty ane loyalty in the eealings with eithe, basso, o, the bessee. (b) Otha, duties to the Lessa, ane the bessee as states
atio>'e in suapa,ag,aphs (i) or (ii). In ,ep,esenting lloth basso, aae Lessee, the agent A1ay not .. ;thowt the 0l'flF8GS peAA1ission of the ,espeGti•,•e Party,
eisslose to the othe, Party that the basso, y;II aGGept rent in an aA10Ynt less than that ineisatee in the listiag or that the bessee is .. ;lling to pay a highs,
rent than tl'lat olfe,ee. The above eYties of the agent iA a ,eal estate t,ansaGtion eo not ,elie•,e a bes so, e, bessee frnA1 tl'le ,esponsibility to prntest ll'lei,
o•w1 interests. bosso, and Lessee sl'lould Ga'flFSss thei, unee,staneing of the t,ansaGtion. -
A ,eal estate agent is a pe,son ~ualifiee to ae·,ise alloyt ,eal estate. If legal or tax ae•,•iGe is eesirnd, Gonsult a GeA1petent prnlessional.
(b) B,0I,ers have no ,esponsibility ·'4th respeGt to any eefewlt o, ti,eash hereof t,y eithe, Party. The Parties agree that no lau1suit or
othe, legal pFOGeeeing invol•;ing any ti,eaeh of eYty, effor or 0A1ission ,elating to this bease A1ay tie arnwght against lilFOke, A10Fe than one year afte, the
Start Date ane tl'lat the liatiility (inGlweing G0Yrt Gests ane attorneys' fees), of any BFOke, >'Sth ,espoGt to any suGh lawswit aae'oF legal prnGeeding shall
not ex,;eed the lee FeGei>

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Lisa K Sepe-Wiesenfeld Track Judge’s New Case

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Document Filed Date

December 28, 2023

Case Filing Date

December 28, 2023

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Complaint,Petition: ROBERT M. SNUKAL VS 926 BROADWAY, LLC

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