Preview
FILED: QUEENS COUNTY CLERK 01/23/2024 08:22 PM INDEX NO. 724451/2023
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 01/23/2024
. 7/04
STANDARD FORM OF STORE
LEASE
The Real Estate Board of New York, Inc,
greciticitt a f Krase,
25-37 STEINWAY
madeas of this
LLC
day þ the year 2017 , between
party of the Firstpart, hereinafterreferredto as OWNER, and
OUZO CAFE INC,
party of thesecond part, hereinalter referredto as TENANT,
Klitat esset7 Owner herebyleasesto Tenantand Tenantherebyhires from Owner
FIRST FLOOR STOREFRONT and BASEMENT (Except Boiler Room)
in the building known as 25-37 STEINWAY STREET ASTORIA, NY 11103
in theBorough of , City of New York, for the term of
QUEENS TEN(10) YEARS
(or until suchterm shall soonerceaseandexpire as hereinafter provided) to commenceon the
1st day of FEBRUARY in the year 2017 , and to endon the
31st day of JANUARY in the year 2027 ' ""d
both datesinclusive, agthe tinnual rental rateof ". SEE ANNEXED RIDER "
which Tenantagreesto pay in lawful money of gheUnited Stateswhich sitall be legal tender in paymentof all debtsanddues.
public and private, at the lime of payment,in equal monthly installmeitis in advanceon the first day of eachmonth during
said term, at the ollice of Owner or suchother placeasOwner may designate,without any setoff or deduction whatsoever,
exceptilial Teniantsliall pay the first rnonthly installinent(s)on theexecution hereof (unlesstitis leasebe a renewal).
In the event that, at the commencemetitof the termof this lease,or thereafter,Tenantsliall be in default in the
paymentof rent to Owner pursuantto the termsof anollier leasewitIt Owner or with Owner's predecessorin interest,Owner
may at Owner's option and witltout notice to Tenantadd theamountof sucharrearsto any montlily installmentof rent
payablehereunderand the sarneshall be payableto Owner as additional rent.
their heirs,distributes,executors,administrators,legal representative,successors
Tlie parties hereto, for 11iemselves,
and assistis, herebycovenantas follows:
Rent: I. Tenant
shallpaytherentasaboveandashencinaller provided
Occupancy: 2, Tenant
shalluseandoccupythedemised for
premises
CAFE ONLY
andfornootherpurpose. mahighgradeandseputable
Tenantshallalall timesconductitsbusiness shallnotviolateArticle37hereof,
maimer, and
shallkeepshowwmdowsandsignsin aneatandcleancomlition
Alterations: 1 Tenantshallmakenochanges in or to the thefixturesandappu:1enances therem.andthesidewalks afgacentthereto,
demised premises of anynature withoutOwner's andatitssolecostandexpense, makeallnon-stmetural repairsthereto as
pnorwrmenconsent.Suby:ct tothepriorwrittenconsent of Owrier,and andwhenneeded topreserve themingoodworkingorderandcondnton.
totheprovisions of thisarnele,Tenant, atTenant's expense, snaymake reasonable wearandtear,obsolescence anddamage fromtheelements,
aliciations.installations, additNnsor improvements whichare non- fireor othercasually, exceptedIf lhedemised premises beor become
structuralandwhichdo not affectutility servicesor plumbingand mfested withvennin,Tenant shallutTenant's expense, cause thesame to
electricalhnes,in or gotheinteriorof thedemised premises by using beexterminated fiomtimetotimetoIhesalisraenson ofOwner,Except as
camtractorsormechanies firstapproved ineachinstance byOwnerTenant specifeally provided in Anicle9orelsewhere in thislease,thereslallhe
shall, hefore making any allerations,additions.mstallationsor noallowance to theTeamat for thediminulionof rentalvalueandno
improvements, atstsexpense, olnamallpennits, approvals andcenificates liabilityonthegunof Ownerby reason of inconvemence, annoyance or
uequired by anygovemmental or quasi-govemnwnial bodiesand(upon injury tobusiness arisms from Owner, Tenant orothens, makmg or failing
completson) certaticates of linal approvalthereof,mul shalldeliver to makeanyrepairs, altemlions, additions or improvements in orto any
p omptlydupheates of all suchpermits,approvals andcernineates to portionof thetmilding,includingtheerection or operaigon oranycrmie.
Owne:, andTenant agrees toentry,andwillcause Tenant's contractors and derrickorsidewalk shed,or mortothedemised premises or Ihefixtures,
sub-contractoss tocarry,suchworker'scompensation, commercial general aspurtenances or equipment the1eof
on' It is specilically agieed thatTemuit
habilny,personal and.propedydamage insurance asOwnermayreqmre. ull benotentitledto anyset or aednesen of rentby reason of any
If anmechanic's lienisliledagainst thedemised premises, orIkebuilding failureofOwnes to complywithghecovenants ofthisoranyotheranticle
of w1uch thesameformsa , forworkclaimed tohavebeendonefor, of thisleaseTennan agreesilus Tenant's soleremedyat lawm such
or matenals fumishedto, 'enarn, whether asnoldonepursuant to this instance will bebywayof anactionfordamages forbreach ofconnact
article,Ihesameslall bedaselurged by Tenant withm30daystherealler, 'Iheprovisions of lhisAnticle"l withrespect tothemakmg ofrepairs shall
atTenani's expense, bypayment or lilmgalmndaspermitted by law.All notapplyin thecaseof lire or othe casually, wincharedealtwnhm
fixtures,mdallpaneling. partitions,railingsandlikemstallations, mstalled Anticle9hereof
in thedesmsed premises at anytime,eitherby Tenantor by Owneron
Tenant's behalf,shall,uponinslallation, become t hepmperty Owner
of window 5, Tenaniwill notcleannorrequire,permit,
andshallremainuponandbesurrendered with thedemised premises Cleaning: sufferor nilow any windowin the demised
unless Owner,by reticetoTenani nolaterthan twentydayspnertotir premisesto be cleanedfrom the outsidem
datefixedasthelermination of thislease, clectsto relinquish Osmer's violationof Section202of theNewYorkStateLalmrlawor anyolher
nghtsthencto amito lure themremoved by Tenant, m wluchevent,the applicablelaworof theRulesofthe11:mrd ofSlamlardsandAppeals.
of
same shallberemoved fromthedemised premises byTenant priortothe of anyotherlioardor bodyhavingor asserting
jurisdiction
expiration orthelease, atTenang's expense. Nothinginthisarticleslullhe
construed togiveOwnerittleto,or topreveng Tenant's removal of, trade Requirements 6- Pnorlothecommencemeng oftliclease term,
lixtures.moveable oflicefumitureandequipment, butugenremoval of of Law,Fire if Temmiis thenin possession, andatall times
samefromthedemised premises or uponremoval ofotherinstallations as Insurance: therealler,Tenant.at Teaman's solecostand
may berequired byOwner, Termnt simll immediately andatitsexpense, expense, shallpromptlycomplywithall present
repairandrestore thedemised premises tothecondition existingpriorto andAnurelaws.ordersandregulations muincipal
ofall state,federal, and
anysuchinstallations, andrepairanydamage tothedemised premises or local govemments, departments, commissions and hoardsand any
thebuikhng duetosuchremoval. All property permitted orrequired totw directionof anypubheoilicerpursuant to law,andallorders. rulesand
removed by Tenant a t theendof thetenn remaming m thedemised regulations oftheNewYork11oard of FireUndenwriters ortheInsurance
premises alterTenant's removalshallbedeemed abandoned andmay,al Services Ollice,or anysimilarbodywhichshallimgmsc anyviolatmns,
theelectionof Owner,cinherberetained asOwner'sproperty or maybe orderor dulyuponOwnerorTenant withrespect tothedemised premises,
renmved fromthedemised premises byOwneranTenant sexpense andwithrespect to theportmnof thesidewalkadjacent to tir demised
premises, if thedemised premises areonthestreellevel,whether ornot
Repairs: 4, Ownershallmaintainanduepairthepubhe arisingoutofTeminfsuseormanner of useilwreof,orwithrespeeg tothe
portionsof the building,both exteriorand buildms,if arisingoutof Tenant's useor manner of useof thedemised
exce;nthatif OwnerallowsTenant
mterior, toerectontheoutside of the premises or the bmiding(includmgtheuse permittedu nder t he lease)
huildinga signor signs.or a hoist,lin or sidewalkelevatorfor the lixceptasprovidedin Anticle29 hereof,nothingheremshallrensive
exclusiveuseof Tenam, Tenantslall mainlainsuchexterio:installations Tenamto makestruegural unlessTenant
repairsor alterations hasby its
in goodappearance, shallenuse
thesameto beoperated in agoodand manner of useof thedemised premises or methodof operation therein,
workmanlike manner.shallmakeall repairstheretonecessary to keep violatedany such laws, ordmances, orders,rules,regulations or
sameingoodorderandcondition, atTenant's owncostandexpense, und reqmrements withrespect therego.Tenant shallnotdoorpermitanyactor
shalleausethesame tobecovered bytheinsurance provided f orhercaner thmg tobedone inortothedemised premises whichis contrary tolaw, or
mArticle8. Tenantshall,throughout takegoodcare
slictermofthelease. whichwill mvahdate or bein conflictwithpubhehability,lireor other
ofthedemised premises(includms,wnhoutlimitation.thestorefmm) and pokeies ofmsurance atsw timecarriedbyorforthehenefn ofOwner, or
FILED: QUEENS COUNTY CLERK 01/23/2024 08:22 PM INDEX NO. 724451/2023
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 01/23/2024
iInecessary beto Rider
added
other
or toilets, stairs, elevators, corridors, doorways, doors, passageways,
entrances, public location and/or the
arrangement changeto other
er fire from ordamage as
arcsult exist maythat habihty frorn Tenant
therefore, of occupancy.
Tenantto hability incurring withoutand eviction an constituting relieve shall hereinabove contained Noghing(e) Tenant's
same the without time, anyat right the haveshall Owner hereunder. for ready substantially
are premises the that Owner notice
demised .
ligations Tenant's
or lease this on ect no have shallact and written after days (5) five resume lity
forrent lia Tenant's pro
on, cornanyfor Tenant to liability rent, such abatementotherand furniture, eqmpment, shall
· * or of possible, reasonably movable and invent sal
or limitaten without premises demised the redecorate
or renovate s Tenantof all as promptly
as ises from
aher, emer, immediately
may Owner therefrom, propertyTenant's by
removirp restoration Owner's cooperate
control. with shall Tenant elaims, casual
of all ly suor all removedhaveshall Temmi term the of month such any After Owner's beyond cases and troubles labor
lastthe duri affected.
be hereimder obligations
the shal insurance to due delays to subject expedition reasonable
if therefore, Tenant
of of hereof, adjustmeng
event any
m nor li itsor oumerrender
agents not shall en all with (c) and (b)ofherein, conditions
the under restorations
and repairs
property, Tenam's to is cme reasonable the make Owner for as notice termination
a serve
such forcibly, exercised
permissible, provided shall Tenant. provided
and or key master or necessary
be may entry shall OwnerUnless to beI
retumed datesuch to su
such whenever same the enter may egents s Owneror Owner premises, period any of on were whichTenant madesent
account of
demisedthe into entiyan permit and open to present not is Tenant anyanddatesuch to up paid be shall owing rent anyand terminatioit
moleslagion. without thereon remainto to pnor effect provisions
If e", or permit shall Tenantnotices such in however,lease the underTenantagaimt remedies
which od, and IAt""to notice mual the premises the
demised and rights Owner's to quit, prejudice without premises demised
upon nee monthssix sad dming may, tenants, prospective the vacate sunender
and and forthwith shall knamand lease thisof
to same the showing
of purposethefor term the of months six lastthe semaination
thefor above forthset date thewere ifsuchdate
as completely
uilding, or
mortgagees purchasers prospective
to same fullyas expire lease t)iis term the notice in
and , of and shall
notice, of such specified
the of thefor hours reasonable at premises the
demised datethe upon and lease, ofsuch gmng the afterdays eo thanmore be not
emerto the haveshall Ownerhereof term the otherwise.Throughout
shall date which ofthe expiration thefor date a sooner,specifying
is
or business casualty,
of progress,interruption or loss of reasonby damages whicheveror fire such for immanceorthe after
adjustment
anyto nor in is work suchwhilerent of anyto
abatement 30days
or casualty
or fire suchaAer withingrvenTenam to notice
be Tenant the nor eviction,
an constituting
same the without written
by lease this terminate
to elect Ownerevents,
emitted I such any
premisessaidirgo eqmand mat may, necessay
all take practicable.
premises, in then, it, toor it
rebuild to decide shall Owner
in
demised work of walls, any the during so be shall buildingthe if in or le in damaged are ines
wherever or
ceili floorspipes, the within concealed are provided demised thenotor or unmable whol are
rendered premises
therem,conduits ducts, new erect to and premises the the ded. as same the torestore to
and demised demised If (d) not elect
through
and in conduits
and pipes replace
and maintain
and use to Owner rigin Owner's
to subjeeg msubsecton as
provided apportuned
permit Tenam ties. directions
other be rent then nant the pet in sooner(or Owner
govemmental
of and shall reoccupied
ulations with ying com of pmpose theforor lease, tlus under by restored
and repaired beenhaveshall premises demisedthe when
perform
to obliis Tenant which any perfonn or perform, repatramake date the until cease shall and casualty
thenceforth ofthetime thetoup pad
to failure Tenant'sfollowmg demisedthein to elect proportionately
be shall provided expressly as rent addittonal
may Owner whichor buildmg
theof portan any to desirablereasonably of items other rentthe then casually, other
or fire unusable wholly
necessay deem may Owner as improvements replacements or totally
are premises the usable.
is
and rendered demised If (c)
repaisuchmake to and same the to times, reasonable
examine other whi · demised ofthe partthe to casualty
the following
at and, time, any at emergency
any in pmmses the from
rent,
be shall
apportioned
ed, com substantially
be shall
the enter
demised to be not shall(but
obligated) Premises: r suchuntil of items
additionai other rentthe Ownerof
riginthe haveshall agentsOwner's or Owner 13, to Access expense
theat and repairedby
be shall the other
or fueby unusable patially or
rendered are premises
satainmay Tenant loss, forth.
which expenses or damages any the
demised If (b) set hereinafter
as
for Tenant, to respons
ore · 1eOwner make way no in shall service effect and force fullin continue shalllease this Casualty:
ofelectric character
theof time at change The building. the
of tenants and to thereof notice immediate giveshall Other and
etherby usereasonableexercised,
thereof the with or installations
such overload Tenam other
or by be
damaged shall Fire,
iort which, equipment 9. Destruction,
I i
installation, clectrical thereofany or demised Ifthe (a)
usenot may Tenant and or risers theor building d.
theto feedersexisting of capacity
the exceed not shall currentelectrio wi unreasonably
beto not approval
writing,
of useiss times allat that agrees and covenants such in by a
I,
by
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or action
in d or res Tenant' Owner em notice
to in conditions 12. Electric er adion any case subtenam. invitee employce,
respect and Rates contractor,
agent, In any of
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or
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andaces to
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writing coment obtaining contractors, agents,
's Tenant, theof conduct · or
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or invitees, agent, Tenant's knma,
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father
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in Queens County
Ruling
CORNELIUS MURPHY ET AL VS. 3M COMPANY ET AL
Jul 16, 2024 |
CGC23277169
On Asbestos Law and Motion Calendar for Tuesday, July 16, 2024, in Department 301, Line 5. Plaintiff's Motion to Set a Preferential Trial Date Pursuant to C.C.P. Section 36(a) is DENIED without prejudice. Opposition filed. The Court does not find that Plaintiff's health is such that preference is necessary to avoid prejudicing her interest in the litigation. Specifically, the moving papers and counsel's declaration do not include a medical diagnosis and prognosis. Plaintiff may re-file their motion should circumstances change. The moving party shall lodge with the clerk in Department 301 by the time set for this hearing a proposed order repeating verbatim the substantive portion of the tentative ruling. Any party wishing to contest the tentative ruling must email contestasbestostr@sftc.org by 4:00 p.m. on the day before the hearing and state their intention to contest. If a hearing is requested, it will be on July 16, 2024 at 9:30 a.m. Attorneys may appear in person or remotely via zoom: Meeting ID 160 757 8308; Passcode: 485029. Face coverings are optional. The Court no longer provides a court reporter in the Law and Motion department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: Their name, CSR and telephone number, and their individual work email address. There will be only one official record. If the parties cannot agree, the Court will designate a qualified court reporter to provide the official transcript for the matter, and the party or parties will bear the cost. =(301/RCE)
Ruling
Nicole Trippie vs. Misty Leone
Jul 15, 2024 |
C23-01955
C23-01955
CASE NAME: NICOLE TRIPPIE VS. MISTY LEONE
*HEARING ON MOTION IN RE: TO ENFORCE STIPULATION AND ORDER
FILED BY: LEONE, MISTY
*TENTATIVE RULING:*
Appearance required.
Ruling
Hall, Chantelle vs. City of Chico et al
Jul 17, 2024 |
21CV03075
21CV03075 Hall, Chantelle v. City of Chico et al.
EVENT: Plaintiff’s Motion for “Partial” Summary Judgment
Plaintiff’s Motion for Partial Summary Judgment is DENIED as to both Defendants City of
Chico and Defendant Reed Francis.
Plaintiff’s Request for Judicial Notice is GRANTED. However, the Court is not assuming
the truth of the information contained in the documents.
On summary judgment, we construe the moving parties’ evidence narrowly and the non-
moving parties’ evidence broadly. (See Monte Vista Dev. Corp. v. Superior Court, (1991)
226 Cal. App. 3d 1681,1684)
Defendant Reed Francis
Preliminarily, the Court notes Plaintiff’s reply attempts to introduce new evidence which
was not introduced with the moving papers. The Court has discretion whether to accept
new evidence with the reply papers (see Alliant Ins. Services, Inc. v. Gaddy, (2008) 159
Cal. App. 4th 1292, 1308). The Court is declining to consider the new evidence.
The parties agree an element of a Title III cause of action requires the defendant own,
lease, or operate a place of public accommodation. (See Molski v. M.J. Cable, Inc., (2007)
481 F.3d 724, 730) Plaintiff has not met her initial burden demonstrating no triable issue
of fact exists. Plaintiffs’ UMF 15 states the City owned the sidewalk, and UMF 5 states
Plaintiff tripped over the sidewalk. This contradicts Plaintiff’s assertion in UMF 15 that
Defendant Francis owned the property where the incident occurred. Construing Plaintiff’s
evidence narrowly, as we are required in this instance, Plaintiff has failed to meet her
initial burden.
Further, as Defendant Francis noted, an apartment complex is not a place of public
accommodation for purposes of Title III. As a result, the motion is denied as to the Title
III cause of action and Defendant Reed Francis. Consequently, the motion is necessarily
denied as to the California Disabled Persons Act cause of action pertaining to Defendant
Francis.
Defendant City of Chico
The parties agree the elements of a Title II violation are:
(1) she is a "qualified individual with a disability";
(2) she was either excluded from participation in or denied the benefits of a public
entity's services, programs or activities, or was otherwise discriminated against
by the public entity;
1
and
(3) such exclusion, denial of benefits, or discrimination was by reason of his
disability.
Weinreich v. Los Angeles County Metro. Transp. Auth., (1997) 114 F.3d 976, 978
A triable issue of fact exists as to element #2. The City has provided evidence that the
subject sidewalk is not an existing facility for purposes of the ADA. (City’s UMF 3) As it
pertains to existing facilities, 28 CFR 35.150 requires the City to provide a sidewalk that
“when viewed in its entirety, is readily accessible to and usable by individuals with
disabilities.”
Plaintiff has presented no evidence demonstrating that the subject sidewalk is not, when
viewed in the entirety, readily accessible. A triable issue of fact exists on the issue.
Further, Plaintiff has submitted no evidence indicating the sidewalk was “altered” for
purposes of the statute.
§ 35.151 New construction and alterations.
(b) Alterations.
(1) Each facility or part of a facility altered by, on behalf of, or for the use
of a public entity in a manner that affects or could affect the usability of the
facility or part of the facility shall, to the maximum extent feasible, be
altered in such manner that the altered portion of the facility is readily
accessible to and usable by individuals with disabilities, if the alteration
was commenced after January 26, 1992.
[Emphasis Added]
The plain language of the statute indicates “altered” means affirmative conduct on behalf
of the City. A tree root originating from private property is not an alteration for purposes
of the ADA as it pertains to the City.
The Court declines addressing the issue of deliberate indifference at this time.
In light of the Court’s ruling on the Title II cause of action, the motion is necessarily denied
as to the California Disabled Persons Act cause of action.
Defendant Reed Francis shall prepare and submit a form of order consistent with this
ruling within 2 weeks.
2|Page
||2. 22CV02886 V.B. v. DOE 1 et al.
EVENT: DOE 1’s Motion for Terminating, Issue, Or Evidence Sanctions Against Plaintiff for
Failure to Comply With Discovery Orders; and Request for Monetary Sanctions in the Amount
of $4,357.00
DOE 1’s Motion for Terminating, Issue, Or Evidence Sanctions Against Plaintiff for Failure
to Comply With Discovery Orders; and Request for Monetary Sanctions in the Amount of
$4,357.00 is GRANTED in PART. The request for terminating sanctions is denied without
prejudice. Plaintiff is ordered to provide complete responses without objection to DOE 1’s
outstanding discovery requests within 20 days of this order. If plaintiff fails to comply, the
court word consider a motion for terminating sanctions at that time.
Evidentiary sanctions are hereby imposed against plaintiff for his willful violation of the
Court’s previous order. Plaintiff is prohibited from introducing the following matters into
evidence:
- Any evidence, including witness testimony and documents, relating to DOE
1’s ownership, control, management, oversight, direction, or operation of
the church where DOE 3 allegedly met and sexually assaulted Plaintiff;
- Any evidence, including witness testimony and documents, that DOE 3 was
an agent or employee of DOE 1;
- Any evidence, including witness testimony and documents, that DOE 1 is
legally responsible for any acts or omissions of DOE 2;
- Any evidence, including witness testimony and documents, that DOE 1 was
a successor-in-interest and/or alter ego of any other defendant;
- Any evidence, including witness testimony and documents, relating to DOE
1’s care, operation, ownership, supervision, and control of the programs and
school that Plaintiff participated in, including the premises where they were
located;
- Any evidence, including witness testimony and documents, that DOE 3
sexually assaulted or abused Plaintiff;
3|Page
- Any evidence, including witness testimony and documents, that DOE 1’s
pastors, ministers, agents, or employees knew or had any reason to know
that DOE 3 sexually assaulted and abused Plaintiff;
- Any evidence, including witness testimony and documents, that Plaintiff
reported any abuse by DOE 3 to any of DOE 1’s pastors, ministers, agents,
or employees;
- Any evidence, including witness testimony and documents, that DOE 1’s
pastors, ministers, agents, or employees knew or had any reason to know
of DOE 3’s abuse of any minor children;
- Any evidence, including witness testimony and documents, that Plaintiff’s
mother reported that she believed DOE 3 was sexually assaulting and/or
molesting Plaintiff to DOE 1;
- Any evidence, including witness testimony and documents, that DOE 1
attempted to cover up DOE 3’s sexual assault, abuse, and molestation of
Plaintiff, including by forcing Plaintiff’s mother to sign an agreement not to
sue or press charges;
- Any evidence, including witness testimony and documents, that DOE 1
knew or had any reason to know that DOE 3 was not fit to be in a position
where he would necessarily come in contact with minors;
- Any evidence, including witness testimony and documents, that DOE 1
knew or had any reason to know that DOE 3 solicited, sexually assaulted,
molested, or abused any minor children, including Plaintiff;
- Any evidence, including witness testimony and documents, relating to
Plaintiff’s general damages; and
- Any evidence, including witness testimony and documents, relating to
Plaintiff’s special damages.
Further monetary sanctions are imposed against Plaintiff in the amount of $2,600.00.
4|Page
Defendant DOE shall prepare and submit a form of order consistent with this ruling
within 2 weeks.
3-||4. 22CV03060 DN v. Doe 1 et al.
EVENT: (1) Defendant County of Butte’s Demurrer to Plaintiff D.N.’s Complaint, Or, In the
Alternative, Motion to Stay Action
(2) Defendant County of Butte’s Motion to Strike Portions of Plaintiff D.N.’s Complaint
The demurrer and motion to strike is continued one last time to October 16, 2024 at
9:00am. The Court intends to rule on the motions at that time, regardless of whether an
appellate decision has issued.
5-||6. 23CV03298 Penna, Maurice v. Neher, Wyatt J et al.
EVENT: (1) Application for Writ of Possession and for Temporary Restraining Order
(2) Application for Temporary Restraining Order
The Court will hear from counsel. The Court is in receipt of the affidavit of publication.
However, unless and until the moving papers are served, it appears the Court does not
have jurisdiction over these motions.
Ruling
RAOUL RENFROE, ET AL. VS GOLDEN MOTEL, ET AL.
Jul 17, 2024 |
20STCV13591
Case Number:
20STCV13591
Hearing Date:
July 17, 2024
Dept:
3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT
RAOUL RENFROE, et al.
,
Plaintiff(s),
vs.
GOLDEN MOTEL, et al.
,
Defendant(s).
)
)
)
)
)
)
)
)
)
)
)
CASE NO.:
20STCV13591
[TENTATIVE] ORDER RE:
MOTION TO ENFORCE
SANCTIONS AGAINST PLAINTIFF ANNORA RENFROE AND COUNSEL
Dept. 3
8:30 a.m.
July 17
, 2024
)
This is the second of two motions filed by defendant Wangs Golden Enterprises, Inc. dba Golden Motel (Defendant) asking the Court to enforce monetary sanctions of $1,120 previously imposed against plaintiff Annora Renfroe (Plaintiff) in a minute order dated January 26, 2024 issued by the Honorable Lisa R. Jaskol (January 26 Order). Although the January 26 Order did not impose sanctions against Plaintiffs counsel, Defendant argues that Plaintiff and Plaintiffs counsel should be jointly liable for $5,000 due to their failure to comply with the January 26 Order.
The motion is DENIED because no additional court order is necessary to enforce an order imposing sanctions. (
Newland v. Superior Court
(1995) 40 Cal.App.4th 608, 615 [monetary sanctions orders have the force and effect of a money judgment, and are immediately enforceable through execution, except to the extent the trial court may order a stay of the sanction.])
Moving party to give notice.
Dated this
17th
day of
July
, 2024
William A. Crowfoot
Judge of the Superior Court
Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.
Ruling
Correy Baker vs Haven Investment Corp.
Jul 18, 2024 |
23CV01051
23CV01051
BAKER v. HAVEN INVESTMENT CORP.
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Defendant Haven Investment Corp. dba Garden Haven Nursery’s motion for summary
judgment is granted. Summary judgment is appropriate since plaintiff failed to dispute any
material facts and failed to produce evidence that the Privette doctrine either does not apply or
that an exception to it applies. No triable issues of material fact are presented by any party.
This is an action for damages related to injuries plaintiff sustained on a jobsite following
a propane tank explosion. Plaintiff’s independent plumbing contracting company was hired by
defendant to install a gas stove, new faucets, and a new water heater on defendant’s property. He
alleges defendant’s employees negligently turned on a gas line he had shut off to install the stove
resulting in an explosion and his severe burn injuries. This case turns exclusively on the legal
issue of whether the Privette doctrine applies.
Plaintiff’s form complaint, filed 5/8/23, seeks personal injury damages for one count of
negligence.
I. DEFENDANT’S MOTION
Defendant moves for summary judgment on the grounds that as a hirer, it is not liable for
the industrial injury of a contractor. (Privette v. Superior Court (1993) 5 Cal.4th 689
(“Privette”).) The facts it presents, which are not disputed, are that plaintiff, a licensed plumbing
contractor operating his own business since 2008, was hired by defendant to install a gas stove,
new faucets, and a new water heater in a building owned by defendant. Plaintiff’s company was
hired based on a verbal bid of $2,400, and defendant’s owner was out of state at the time he was
to perform the work. (Statement of Undisputed Material Facts (“UDF”) 1-4.) The new stove
required connection to a propane tank on site and defendant told him to discuss the gas line with
its employee Mario Cervantes. (UDF 5-6.)
Plaintiff understands basic safety practices and procedures related to gas lines, including
verifying that they are turned off before and during the work. When plaintiff shut off the gas line
from the propane tank, he saw a Hispanic male whom he presumed was working on site, but it
was not Mr. Cervantes. Plaintiff spoke to him in Spanish and advised him not to turn the gas line
Page 1 of 9
on and to make sure others did not. He understood that the man responded affirmatively to those
instructions. (UDF 7-15.)
Plaintiff then closed the propane tank valve before commencing work, confirmed it was
shut off, and while connecting the stove, realized that he needed an additional part (a flared
fitting for the stub-out in order to attach the proper length flex line). (UDF 16-23.) Plaintiff then
left the job site to retrieve the parts at his storage unit, which was 25 minutes away. Before he
left, he replaced the cap with a plug to close the stub-out, which was a safety precaution to close
the gas line and prevent gas from coming out in the event someone turned the gas line back on.
(UDF 24-26.) Plaintiff drove to and from his storage unit, returned to the job site, and did not see
any other persons in the immediate vicinity of the site. He did not visually check or otherwise
verify that the gas line valve remained off, he did not smell gas, removed the plug closing the
stub-out, heard hissing and realized the gas line was live. He tried unsuccessfully to put the plug
back in but the gas escaped, ignited within a second and severely burned him. (UDF 27-34.)
Plaintiff opposes the motion on the grounds that two exceptions to the Privette doctrine
apply and that his case may proceed to trial. He claims there were at least four employees of
defendant on site that day and that one of defendant’s agents reactivated the gas line during his
brief absence from the job site. (Plaintiff’s Separate Statement, fact no. 11.)1 He contends that
someone reactivated the gas line while he was away and that amounts to either retained control
which affirmatively contributed to the injuries or a concealed hazard, negating the presumption
of no liability under Privette.
Defendant argues on reply that neither of the Privette exceptions are applicable here.
Plaintiff was an independent contractor with extensive experience, it retained no control over any
part of his work, that plaintiff failed to speak to the person defendant told him was in charge of
the site, that plaintiff failed to take basic safety measures when returning to the site, and the
hazards were known, readily apparent and not concealed.
Plaintiff failed to oppose defendant’s Separate Statement and responded “undisputed” to
all 35 facts.2 Similarly, defendant failed to oppose any of plaintiff’s separate undisputed facts,
instead relying on the legal framework of the Privette doctrine.
1
As evidence of his own separate fact no. 11, plaintiff only offers his complaint, ¶ GN-1. Parties cannot
rely upon their own pleadings to support separate statements. (College Hosp., Inc. v. Superior Court
(Crowell) (1994) 8 Cal.4th 704, 720; CCP § 437c(p)(2).)
2
The single fact “disputed” by plaintiff fails to offer any supporting evidence (UDF 12). “Without a
separate statement with references to supporting evidence … it is impossible … to demonstrate the
Page 2 of 9
II. SUMMARY JUDGMENT STANDARD
In a summary judgment motion, the court must determine from the evidence presented
that “there is no triable issue as to any material fact and that the moving party is entitled to
judgment as a matter of law…” (CCP §437c(c).) In making this determination, the court may
rely on “affidavits, declarations… and matters of which judicial notice shall or may be taken.”
(CCP §437c(b).) “The court’s sole function on a motion for summary judgment is issue-finding,
not issue determination. The judge must simply determine whether there is a triable issue as to
any material fact… To be material, the fact must relate to some claim or defense in issue under
the pleadings and be in some way essential to the judgment; if proved, it could change the
outcome of the case. There is a triable issue of material fact if, and only if, the evidence would
allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof…If there is a single such issue, the
motion must be denied. (Weil & Brown, Civil Procedure Before Trial (The Rutter Group 2023)
§§10:270-271.)
"A party may move for summary judgment in an action or proceeding if it is contended
that the action has no merit or that there is no defense to the action or proceeding." (CCP §
437c(a)(l).) "[T]he party moving for summary judgment bears the burden of persuasion that there
is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar
v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 850.) "That is because of the general principle that a
party who seeks a court's action in his favor bears the burden of persuasion thereon." (Ibid.)
Further, "the party moving for summary judgment bears an initial burden of production to make
a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his
burden of production, he causes a shift, and the opposing party is then subjected to a burden of
production of his own to make a prima facie showing of the existence of a triable issue of
material fact." (Ibid.) "[T]he opposing party is then subjected to a burden of production of his
own to make a prima facie showing of the existence of a triable issue of material fact." (Ibid.)
"There is a triable issue of material fact if, and only if, the evidence would allow a reasonable
trier of fact to find the underlying fact in favor of the party opposing the motion in accordance
with the applicable standard of proof." (Ibid.)
Each material fact must have a citation to supporting evidence. (CCP 437c(b)(1).) “If a
triable issue is raised as to any of the facts contained in the separate statement, the motion may
be denied.” (Weil & Brown, Civil Procedure Before Trial, at §10:95.1, citing Nazir v. United
Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) Opposition declarations are to be liberally
existence of disputed facts.” (CCP §437c(b)(3); Lewis v. County of Sacramento (2001) 93 Cal.App.4th
107, 115 (disapproved on other grounds by Kaufman & Broad Communities, Inc. v. Performance
Plastering (2005) 133 Cal.App.4th 26, 41-42; Blackman v. Burrows (1987) 193 Cal.App.3d 889, 895.)
Page 3 of 9
construed while the moving party’s evidence is strictly scrutinized. (Id. at §10:124.7.) The court
need only rule on material objections, i.e., those that the Court relies on in making its
determination. Evidentiary objections not ruled on are presumed overruled and preserved for
appellate review. (Id. at §9:63.1.)
III. PRIVETTE DOCTRINE
Generally, a non-negligent party cannot be liable for tort to its independent contractor's
employees. (Privette v. Superior Court (1993) 5 Cal.4th 689, 702.) Privette “renders the hirer of
an independent contractor immune from liability to the independent contractor's employee even
when the basis for liability was that the hirer failed to provide in the contract that the contractor
must take special precautions to avert the risks of work. [Citation.] Privette also bars liability
when the injured employee's theory is that the hirer negligently hired the independent
contractor. [Citation.] Finally, Privette applies when the injured employee's cause of action
against the hirer of the independent contractor is based on the hirer's failure to comply with
statutory or regulatory workplace safety requirements. [Citation.]” (Johnson v. Raytheon
Company, Inc. (2019) 33 Cal.App.5th 617, 628.)
“By hiring an independent contractor, the hirer implicitly delegates to the contractor any
tort duty it owes to the contractor's employees to ensure the safety of the specific workplace that
is the subject of the contract. That implicit delegation includes any tort law duty the hirer owes to
the contractor’s employees to comply with applicable statutory or regulatory requirements.”
(SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594.) The California Supreme
Court has held that the duty to ensure a safe workplace may be delegated, based largely on the
policy rationale that because workers’ compensation limits the liability of an independent
contractor to its employees, “it would be unfair to permit the injured employee to obtain full tort
damages from the hirer of the independent contractor—damages that would be unavailable to
employees who did not happen to work for a hired contractor. This inequity would be even
greater when, as is true here, the independent contractor had sole control over the means of
performing the work.” (Id. at 603.)
There are two exceptions to the Privette general rule of nonliability. The first is where a
hirer of an independent contractor retained control over safety conditions and the exercise of
retained control affirmatively contributed to the employee's injuries. (Hooker v. Department of
Transportation (2002) 27 Cal.4th 198, 202.) “Affirmative contribution” to the plaintiff's injuries
sufficient to support liability against the hirer encompasses a situation where a hirer promises to
undertake a particular safety measure but negligently fails to do so if that failure affirmatively
contributed to an employee's injury. (Id. at 212.) An “affirmative contribution” may also take the
form of actively directing a contractor or an employee about the manner or performance of the
Page 4 of 9
work, and that direction causes injury. (Tverberg v. Fillner Constr. (2012) 202 Cal.App.4th
1439, 1446.)
The second is where a landowner knew, or should have known, of a latent or concealed
preexisting hazardous condition on its property, the contractor did not know and could not have
reasonably discovered this hazardous condition, and the landowner failed to warn the contractor
about this condition (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 664; Gonzalez v. Mathis
(2018) 20 Cal.App.5th 257, 267 ["In subsequent cases, the Court established two exceptions to
the “Privette doctrine”].) But even where the defendant's property lacked certain safety guards as
required by applicable regulations, courts have held that it was the responsibility of the
independent contractor to identify the absence of the safety guards and to take reasonable steps
to address the hazard. (SeaBright Ins. Co., supra, 52 Cal.4th at 594.)
On summary judgment where defendant can establish it hired plaintiff to perform work
and that plaintiff was injured while performing that work, defendant is entitled to a rebuttable
presumption of nonliability. (Alvarez v. Seaside Transportation Servs. LLC (2017) 13
Cal.App.5th 635, 664.)
IV. MATERIAL FACTS ARE NOT IN DISPUTE AND NO EXCEPTION TO
PRIVETTE IS ESTABLISHED
As stated, the facts presented establish that plaintiff, a very experienced plumbing
contractor, failed to take adequate safety measures when he returned from retrieving parts by
failing to ensure the gas line was off. Notably, plaintiff left the job site for nearly an hour and
when he returned, failed to visibly confirm the gas remained off. Based upon defendant’s
undisputed facts, it is entitled to a rebuttable presumption that the Privette doctrine applies and it
is not liable. Defendant has offered uncontroverted evidence that it hired plaintiff, a licensed
plumbing contractor, to perform work and plaintiff was injured while doing that work.
Plaintiff argues both exceptions to Privette apply here – that defendant retained control
over the gas line, that circumstantial evidence suggests that one of the four employees of
defendant on site turned the gas line back on, and that the reactivated gas line constitutes a
known but concealed hazard. However, plaintiff offers no evidence to support either exception.
All he offers in his own Separate Statement, fact nos. 7-11, that he turned off the gas line, that
there were four other defendant’s employees on site, that he informed a person he was working
on the gas line, that no one was to touch it, and that person acknowledged his instructions.
This undisputed evidence does not support either retained control or a concealed hazard.
First, defendant delegated to plaintiff the entirety of the job – to install the gas stove – and did
Page 5 of 9
not direct or offer any of its employees to assist or control aspects of plaintiff’s work. (UDF 3-6,
28.) Defendant neither promised to undertake a particular safety measure and negligently failed
to do so, or actively directed plaintiff about the manner or performance of the work, resulting in
injury. (Hooker v. Department of Transportation, supra, 27 Cal.4th at 212; Tverberg v. Fillner
Constr., supra, 202 Cal.App.4th at 1446.) Second, the hazard posed by an active gas line is not
concealed and could have easily been discovered had plaintiff used basic safety measures upon
his return to the site. (UDF 1, 7, 16-18, 21-22, 26, 29, 33, 35.) (Kinsman v. Unocal Corp., supra,
37 Cal.4th at 664; SeaBright Ins. Co., supra, 52 Cal.4th at 594.)
Since Plaintiff has failed to meet his burden of producing evidence to support either
exception to the Privette doctrine, summary judgment is appropriate. No triable issues of
material fact are presented and defendant is presumed not liable.
V. PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE
Plaintiff’s request for judicial notice of defendant’s Answer in this action is denied. The
court need not take judicial notice of its own records in the action.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Ruling
OLGA OCHOA VS FIRST BARGAIN, INC., A CORPORATION
Jul 17, 2024 |
21STCV17364
Case Number:
21STCV17364
Hearing Date:
July 17, 2024
Dept:
32
PLEASE NOTE
:
Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.
If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at
sscdept32@lacourt.org
indicating that partys intention to submit.
The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling.
If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.
If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.
Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.
TENTATIVE RULING
DEPT
:
32
HEARING DATE
:
July 17, 2024
CASE NUMBER
:
21STCV17364
MOTIONS
:
(1) Compel Plaintiffs Answer to Demand for Production of Documents
(2) Compel Plaintiffs Answer to Form Interrogatories
(3) Compel Plaintiffs Answer to Special Interrogatories
MOVING PARTY:
Defendants Angie Enterprises, Inc. and First Bargain, Inc.
OPPOSING PARTY:
None
BACKGROUND
Defendants Angie Enterprises, Inc. and First Bargain, Inc. (Defendants) move to compel Plaintiff Olga Ochoa (Plaintiff) to serve verified responses, without objections, to Demand for Production of Documents, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One. Defendants seek monetary sanctions. No opposition has been filed.
LEGAL STANDARD
Interrogatories
If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses. (Code Civ. Proc. § 2030.290 (b).) Failure to timely respond waives all objections, including privilege and work product, unless [t]he party has subsequently served a response that is in substantial compliance and [t]he partys failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2030.290 (a)(1), (a)(2).) The statute contains no time limit for a motion to compel where no responses have been served and no meet and confer is required when a party does not respond to discovery requests. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)
If a motion to compel responses is filed, the Court shall impose a monetary sanction against the losing party unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., §§ 2030.290 (c).) Further, [t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348(a).)
Requests for Production
Under Code of Civil Procedure Section 2031.300, if a party fails to serve a timely response to a demand for inspection, the party making the demand may move for an order compelling response to the demand. (Code Civ. Pro § 2031.300 (b).) The party who fails to serve a timely response to a demand for inspection waives any objection to the demand unless the court finds that the party has subsequently served a response that is in substantial compliance or partys failure was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc. § 2031.300 (a)(1)- (2).)
Courts shall impose a monetary sanction against any party who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection unless the party acted with substantial justification or other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2031.300 (c).) Further, [t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348(a).)
DISCUSSION
Here, Defendants served Demand for Production of Documents, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One, on Plaintiff on January 18, 2023. (Gates Decl. ¶ 3, Exh. A.) Plaintiff served responses without a verification on June 1, 2023.
[1]
(
Id.
¶ 4, Exh. B.) The responses contain objections and substantive responses. Defendants contend that Plaintiff has not served verifications for the discovery. It appears that extensions were unilaterally provided until April 3, 2024. (
Id.
, Exh. C.)
When hybrid responses (objections and responses) have been served, the responses that contain only objections do not require a verification (See
Food 4 Less Supermarkets, Inc. v. Superior Court
(1995) 40 Cal.App.4th 651, 657.) As to the substantive responses, [t]he omission of the verification in the portion of the response containing fact-specific responses . . . renders that portion of the response untimely and therefore only creates a right to move for orders and sanctions . . . as to those responses but does not result in a waiver of the objections made. (
Food 4 Less Supermarkets, Inc.
,
supra
,
40 Cal.App.4th at 65758.)
Unverified discovery responses are tantamount to no response at all, and are subject to a motion to compel responses (rather than a motion to compel further responses).¿ (
Appleton v. Superior Court
(1988) 206 Cal. App. 3d 632, 635-36.)¿
Therefore, because verifications to the responses have not been served, they are tantamount to no response at all. Moreover, as to the responses that are only objections, it appears those objections were untimely and therefore waived. Accordingly, the motions to compel are granted.
Defendants also requests $720 in monetary sanctions for each of the three motions, against Plaintiff and counsel of record. This represents an hourly rate of $165 and the $60 filing fee. (Gates Decl. ¶ 9.) The Court finds sanctions are warranted because Plaintiff has failed to respond. However, the amount requested is excessive given the type of motion, lack of opposition, and the fact counsel can appear at the hearing remotely.
Therefore, the Court awards sanctions in the total amount of $922.50 (1.5 hour of attorney time, plus the filing fee, for each motion).
CONCLUSION AND ORDER
Accordingly, Defendants Motions to Compel Demand for Production of Documents, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One are GRANTED. Plaintiff Olga Ochoa shall provide verified responses, without objection, within 15 days.
The Court further GRANTS Defendants request for monetary sanctions against Plaintiff and Plaintiffs counsel, jointly and severally, in the reduced amount of
$922.50
. Said monetary sanctions are to be paid to counsel for Defendants within 30 days of the date of this order.
Defendants shall provide notice of the Courts order and file a proof of service of such.
PLEASE NOTE
:
Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.
If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at
sscdept32@lacourt.org
indicating that partys intention to submit.
The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling.
If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.
If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.
Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court
.
TENTATIVE RULING
DEPT
:
32
HEARING DATE
:
July 17, 2024
CASE NUMBER
:
21STCV17364
MOTIONS
:
Motion to be Relieved as Counsel
MOVING PARTY:
Plaintiff Olga Ochoas Counsel
OPPOSING PARTY:
None
BACKGROUND
Plaintiff Olga Ochoas
(Plaintiff) counsel of record, Bradley S. Wallace, Esq. and The Wallace Firm, PC (Counsel), moves to be relieved as counsel for Plaintiff. Counsel contends relief is necessary because there has been a breakdown in the attorney-client relationship.
No opposition has been filed for this motion.
LEGAL STANDARD
To be granted relief as counsel, counsel must comply with California Rules of Court (CRC) 3.1362. Even where grounds for termination exist, attorneys seeking to withdraw must comply with the procedures set forth in California Rule of Professional Conduct (CRPC) 3.700 and are subject to discipline for failure to do so. CRPC 3.700(B) lists various grounds for mandatory withdrawal.
An attorney's right to terminate the attorney-client relationship and withdraw from a case is not absolute. (See
Vann v. Shilleh
(1975) 54 Cal.App.3d 192, 197;
People v. Prince
(1968) 268 Cal.App.2d 398.) The decision whether to grant or deny an application for withdrawal is within the court's discretion, and it does not abuse that discretion by denying the application on the ground that the attorney's withdrawal would work injustice upon a third party. (
Hodcarriers, Bldg. and Common Laborers Local Union No. 89
v. Miller
(1966) 243 Cal.App.2d 391.)
The rules have been liberally construed to protect clients. (
Vann v. Shilleh
, supra, 54 Cal.App.3d 192.) An attorney, either with client's consent or court's approval, may withdraw from a case when withdrawal can be accomplished without undue prejudice to client's interests; however, an attorney shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules. (CRPC 3.700(A)(2).) A lawyer violates his or her ethical mandate by abandoning a client (
Pineda v. State Bar
(1989) 49 Cal.3d 753, 758 759), or by withdrawing at a critical point and thereby prejudicing the clients case. (CRPC 3.700(A)(2);
Vann v. Shilleh
, supra.)
DISCUSSION
Counsel has filed forms MC-051 and MC-052 and has lodged with the Court a copy of the proposed order on form MC-053 as required.
(Cal Rules of Court, rule 3.1362.)
Counsel states the instant motion is filed for the following reason: Attorney and client have a conflict of interest that precludes further representation of client. There has been a break down in the attorney client relationship that precludes further representation. Attorney is unable to represent client as a result of this breakdown and conflict. Due to the nature of the breakdown and conflict, attorney is precluded from disclosing the exact nature of the breakdown and conflict in this Declaration [California Rules of Professional Conduct 3-1700[a] - attorney withdrawal must not prejudice client] but will discuss the nature of the conflict with the court in camera if so required.
(MC-052.) The Court finds this is a valid reason for withdrawal. (See CRPC 1.16.)
Counsel has provided information for all future proceedings in this case and served notice to all parties in the matter. However, the Court notes that the final status conference is set for July 17, 2024, and trial is set for August 1, 2024. The Court notes that a motion to continue was filed by Defendants on May 31, 2024 and is set for July 23, 2024.
[2]
No opposition has been filed. Without a continuance of the trial date, the Court finds that relieving counsel will result in prejudice to Plaintiff.
Accordingly, given the lack of opposition to the motion to continue trial, the Court advances and vacates the hearing date on the motion and grants a continuance. In light of the new trial date, the Court grants the motion to be relieved.
CONCLUSION AND ORDER
Accordingly, the Court GRANTS the motion to relieve counsel.
Counsel must file an amended proposed order with the new dates within 5 days and serve Plaintiff. Counsel must also file a proof of service of the signed amended proposed order within 10 days. Counsel will remain as counsel of record until the proof of service is filed.
The Court GRANTS the motion to continue trial. The hearing on the motion to continue trial is advanced and vacated.
Trial is continued to January 23, 2025 at 8:30 a.m. in Department 32 of the Spring Street Courthouse.
The Final Status Conference is continued to January 9, 2025 at 10:00 a.m. in Department 32 of the Spring Street Courthouse.
Counsel shall provide notice of the Courts ruling and file proofs of service of such.
[1]
Though this motion asserts that Defendants served discovery responses, only responses to Defendant First Bargain, Inc. are shown in the exhibits.
[2]
The motion requests a 6 month continuance on the basis that counsel was reassigned the file as of May 24, 2024 and various motions to compel discovery are set to be heard.
Ruling
HERNAN VICENTE, ET AL. VS CITY OF LOS ANGELES
Jul 17, 2024 |
21STCV04307
Case Number:
21STCV04307
Hearing Date:
July 17, 2024
Dept:
28
Having considered the petitioning papers, the Court rules as follows.
BACKGROUND
On February 3, 2021, July 29, 2022, Plaintiffs Hernan Vicente, Ani Piliposian, and Nicholas Vicente filed this action against Defendants City of Los Angeles (Defendant) and Does 1-50 for motor vehicle tort.
Also on February 3, 2021, the Court appointed Ani Piliposian to serve as Plaintiff Nicolas Vicentes guardian ad litem.
On May 3, 2021, Plaintiffs Hernan Vicente, Ani Piliposian, and Nicholas Vicente, a minor by and through his guardian ad litem, filed a first amended complaint against Defendant and Does 1-50 for negligencemotor vehicle (Government Code section 815.2, subdivision (a)).
On May 24, 2021, Defendant filed an answer.
On January 9, 2024, Plaintiffs filed a notice of settlement.
On June 20, 2024, Petitioner Ani Piliposian (Petitioner) filed a petition for expedited approval of the compromise of minor Plaintiff
Nicholas Vicente
s claims.
PETITIONERS REQUESTS
Petitioner asks the Court for expedited approval of the compromise of the action of minor Plaintiff Nicholas Vicente ("Plaintiff").
DISCUSSION
In Section 8 of the petition, Petitioner states that Plaintiff received treatment at Childrens Hospital Los Angeles.
However, the petition does not include medical expenses for this treatment (see Section 13a) or provide medical or billing records from Childrens Hospital Los Angeles.
The Department of Health Care Services February 5, 2024 letter does not state that Medi-Cal paid for Childrens Hospital Los Angeles treatment.
Petitioner should explain whether Plaintiff incurred medical expenses for treatment at Childrens Hospital Los Angeles, the amount of those expenses, and whether those expenses will be paid or reimbursed from the settlement proceeds.
The Court cannot approve the petition unless it shows that the minors compromise will reimburse all of Plaintiffs medical expenses that have not been reduced or waived.
The non-medical expenses include $100.02 for Administrative/Misc. fee.
(Section 14b.)
The Court will not award this amount without evidence that it qualifies as an allowable cost under Code of Civil Procedure section 1033.5., subdivision (a), or is allowable as a cost expressly authorized by law (see Code Civ. Proc., § 1033.5, subd. (b)).
Section 19b(2) of the petition states that Petitioner will provide the name, address, and branch of the depository in Attachment 19b(2).
The petition does not include an Attachment 19b(2).
The Court denies the petition.
CONCLUSION
The Court DENIES without prejudice the petition to approve the compromise of minor Plaintiff Nicolas Vicentes action filed by Petitioner Ani Piliposian on June 20, 2024.
Petitioner is ordered to give notice of this ruling.
Petitioner is ordered to file the proof of service of this ruling with the Court within five days.
Ruling
Joshua Laine vs Elizabeth Hunter et al.
Jul 16, 2024 |
STK-CV-UPI-2024-0004888
TENTATIVE RULING NOTICE Tentative rulings for Law and Motion will be posted electronically by 1:30 p.m. the day before the hearing. Any party wishing to contest or argue the tentative ruling must email the court at civilcourtclerks@sjcourts.org. that they intend to appear remotely no later than 4:00 PM on the day before the scheduled hearing. The Department and Case Number must be in the header of the email. The email must include the Department, Case number, Case Name, Motion, party’s name and email, date and time of the hearing, issues they plan to argue, and that they have informed the opposing party. The party must also notify affected counsel, or unrepresented parties, that they intend to appear, no later than 4:00 PM on the day before the scheduled hearing. Unless the Court and opposing counsel have been notified, the tentative ruling shall become the ruling of the Court without oral argument. To attend the remote hearing with Judge Kronlund in Dept. 10-D: Call into (209) 992-5590, then follow the prompts and use the Bridge # and Pin # as follows: Bridge # 6940 Pin # 3782 Tentative Ruling Plaintiff's motion for Preliminary Injunction is Denied. CCP Section 527. Plaintiff's motion is untimely as he did not provide at least 16 court days' service of the motion as required. CCP Section 1005(b). Nor did Plaintiff file the Reply at least 5 court days prior to the hearing, assuming he had timely filed his motion. Id. The form of the notice of the motion to Defense was improper by way of a sentence at the bottom of an e-mail. CRC 3.1300(b). The Plaintiff appears to seek a Writ of Mandate from this Court, which is improper as this Court is of the same level, trial court level, as the two courts which issued the DVRO and the CPO against Plaintiff. Only a higher court has authority to review a trial court's Orders- not another trial court. To stay or vacate the DVRO and CPO, Plaintiff needs to seek relief at the proper Appellate Court. That would be by filing a timely Writ or Appeal, as the case may be. Even if all of the above fatal problems didn't exist, there are more problems with Plaintiff's motion. Plaintiff fails to demonstrate a likelihood of success on the merits, as it is extremely unlikely he will prevail on the merits of his case. This is because two separate courts, Criminal and Family, have already found the facts and circumstances underlying the restraining orders to have been proven by a preponderance of the evidence. This necessarily means, Plaintiff isn't able to prevail as he can't meet his burden of proof. Additionally, Plaintiff can't prove he will suffer greater interim harm compared to the Defendants if the injunction is denied, under these circumstances where Plaintiff was charged with a criminal case against one of the Defendants, and two restraining orders in two different courts were issued against Plaintiff, based on the underlying conduct which is the basis of Plaintiff's complaint. Multiple police reports were generated with at least two different law enforcement agencies, with allegations by Defendants against Plaintiff, of which one or more resulted in criminal charges being filed and two restraining orders in two different courts being granted. This shows that the balance of harm favors Defendants in this case. The Defendants exercised their Constitutional rights and litigation rights by generating police reports and seeking redress through the courts in which they obtained valid restraining orders. Finally, Plaintiff is not being prevented from pursuing his litigation by the denial of this injunction. Barbara A. Kronlund
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FILED: QUEENS COUNTY CLERK 01/23/2024 08:22 PM INDEX NO. 724451/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 01/23/2024 . 7/04 STANDARD FORM OF STORE LEASE The Real Estate Board of New York, Inc, greciticitt a f Krase, 25-37 STEINWAY madeas of this LLC day þ the year 2017 , between party of the Firstpart, hereinafterreferredto as OWNER, and OUZO CAFE INC, party of thesecond part, hereinalter referredto as TENANT, Klitat esset7 Owner herebyleasesto Tenantand Tenantherebyhires from Owner FIRST FLOOR STOREFRONT and BASEMENT (Except Boiler Room) in the building known as 25-37 STEINWAY STREET ASTORIA, NY 11103 in theBorough of , City of New York, for the term of QUEENS TEN(10) YEARS (or until suchterm shall soonerceaseandexpire as hereinafter provided) to commenceon the 1st day of FEBRUARY in the year 2017 , and to endon the 31st day of JANUARY in the year 2027 ' ""d both datesinclusive, agthe tinnual rental rateof ". SEE ANNEXED RIDER " which Tenantagreesto pay in lawful money of gheUnited Stateswhich sitall be legal tender in paymentof all debtsanddues. public and private, at the lime of payment,in equal monthly installmeitis in advanceon the first day of eachmonth during said term, at the ollice of Owner or suchother placeasOwner may designate,without any setoff or deduction whatsoever, exceptilial Teniantsliall pay the first rnonthly installinent(s)on theexecution hereof (unlesstitis leasebe a renewal). In the event that, at the commencemetitof the termof this lease,or thereafter,Tenantsliall be in default in the paymentof rent to Owner pursuantto the termsof anollier leasewitIt Owner or with Owner's predecessorin interest,Owner may at Owner's option and witltout notice to Tenantadd theamountof sucharrearsto any montlily installmentof rent payablehereunderand the sarneshall be payableto Owner as additional rent. their heirs,distributes,executors,administrators,legal representative,successors Tlie parties hereto, for 11iemselves, and assistis, herebycovenantas follows: Rent: I. Tenant shallpaytherentasaboveandashencinaller provided Occupancy: 2, Tenant shalluseandoccupythedemised for premises CAFE ONLY andfornootherpurpose. mahighgradeandseputable Tenantshallalall timesconductitsbusiness shallnotviolateArticle37hereof, maimer, and shallkeepshowwmdowsandsignsin aneatandcleancomlition Alterations: 1 Tenantshallmakenochanges in or to the thefixturesandappu:1enances therem.andthesidewalks afgacentthereto, demised premises of anynature withoutOwner's andatitssolecostandexpense, makeallnon-stmetural repairsthereto as pnorwrmenconsent.Suby:ct tothepriorwrittenconsent of Owrier,and andwhenneeded topreserve themingoodworkingorderandcondnton. totheprovisions of thisarnele,Tenant, atTenant's expense, snaymake reasonable wearandtear,obsolescence anddamage fromtheelements, aliciations.installations, additNnsor improvements whichare non- fireor othercasually, exceptedIf lhedemised premises beor become structuralandwhichdo not affectutility servicesor plumbingand mfested withvennin,Tenant shallutTenant's expense, cause thesame to electricalhnes,in or gotheinteriorof thedemised premises by using beexterminated fiomtimetotimetoIhesalisraenson ofOwner,Except as camtractorsormechanies firstapproved ineachinstance byOwnerTenant specifeally provided in Anicle9orelsewhere in thislease,thereslallhe shall, hefore making any allerations,additions.mstallationsor noallowance to theTeamat for thediminulionof rentalvalueandno improvements, atstsexpense, olnamallpennits, approvals andcenificates liabilityonthegunof Ownerby reason of inconvemence, annoyance or uequired by anygovemmental or quasi-govemnwnial bodiesand(upon injury tobusiness arisms from Owner, Tenant orothens, makmg or failing completson) certaticates of linal approvalthereof,mul shalldeliver to makeanyrepairs, altemlions, additions or improvements in orto any p omptlydupheates of all suchpermits,approvals andcernineates to portionof thetmilding,includingtheerection or operaigon oranycrmie. Owne:, andTenant agrees toentry,andwillcause Tenant's contractors and derrickorsidewalk shed,or mortothedemised premises or Ihefixtures, sub-contractoss tocarry,suchworker'scompensation, commercial general aspurtenances or equipment the1eof on' It is specilically agieed thatTemuit habilny,personal and.propedydamage insurance asOwnermayreqmre. ull benotentitledto anyset or aednesen of rentby reason of any If anmechanic's lienisliledagainst thedemised premises, orIkebuilding failureofOwnes to complywithghecovenants ofthisoranyotheranticle of w1uch thesameformsa , forworkclaimed tohavebeendonefor, of thisleaseTennan agreesilus Tenant's soleremedyat lawm such or matenals fumishedto, 'enarn, whether asnoldonepursuant to this instance will bebywayof anactionfordamages forbreach ofconnact article,Ihesameslall bedaselurged by Tenant withm30daystherealler, 'Iheprovisions of lhisAnticle"l withrespect tothemakmg ofrepairs shall atTenani's expense, bypayment or lilmgalmndaspermitted by law.All notapplyin thecaseof lire or othe casually, wincharedealtwnhm fixtures,mdallpaneling. partitions,railingsandlikemstallations, mstalled Anticle9hereof in thedesmsed premises at anytime,eitherby Tenantor by Owneron Tenant's behalf,shall,uponinslallation, become t hepmperty Owner of window 5, Tenaniwill notcleannorrequire,permit, andshallremainuponandbesurrendered with thedemised premises Cleaning: sufferor nilow any windowin the demised unless Owner,by reticetoTenani nolaterthan twentydayspnertotir premisesto be cleanedfrom the outsidem datefixedasthelermination of thislease, clectsto relinquish Osmer's violationof Section202of theNewYorkStateLalmrlawor anyolher nghtsthencto amito lure themremoved by Tenant, m wluchevent,the applicablelaworof theRulesofthe11:mrd ofSlamlardsandAppeals. of same shallberemoved fromthedemised premises byTenant priortothe of anyotherlioardor bodyhavingor asserting jurisdiction expiration orthelease, atTenang's expense. Nothinginthisarticleslullhe construed togiveOwnerittleto,or topreveng Tenant's removal of, trade Requirements 6- Pnorlothecommencemeng oftliclease term, lixtures.moveable oflicefumitureandequipment, butugenremoval of of Law,Fire if Temmiis thenin possession, andatall times samefromthedemised premises or uponremoval ofotherinstallations as Insurance: therealler,Tenant.at Teaman's solecostand may berequired byOwner, Termnt simll immediately andatitsexpense, expense, shallpromptlycomplywithall present repairandrestore thedemised premises tothecondition existingpriorto andAnurelaws.ordersandregulations muincipal ofall state,federal, and anysuchinstallations, andrepairanydamage tothedemised premises or local govemments, departments, commissions and hoardsand any thebuikhng duetosuchremoval. All property permitted orrequired totw directionof anypubheoilicerpursuant to law,andallorders. rulesand removed by Tenant a t theendof thetenn remaming m thedemised regulations oftheNewYork11oard of FireUndenwriters ortheInsurance premises alterTenant's removalshallbedeemed abandoned andmay,al Services Ollice,or anysimilarbodywhichshallimgmsc anyviolatmns, theelectionof Owner,cinherberetained asOwner'sproperty or maybe orderor dulyuponOwnerorTenant withrespect tothedemised premises, renmved fromthedemised premises byOwneranTenant sexpense andwithrespect to theportmnof thesidewalkadjacent to tir demised premises, if thedemised premises areonthestreellevel,whether ornot Repairs: 4, Ownershallmaintainanduepairthepubhe arisingoutofTeminfsuseormanner of useilwreof,orwithrespeeg tothe portionsof the building,both exteriorand buildms,if arisingoutof Tenant's useor manner of useof thedemised exce;nthatif OwnerallowsTenant mterior, toerectontheoutside of the premises or the bmiding(includmgtheuse permittedu nder t he lease) huildinga signor signs.or a hoist,lin or sidewalkelevatorfor the lixceptasprovidedin Anticle29 hereof,nothingheremshallrensive exclusiveuseof Tenam, Tenantslall mainlainsuchexterio:installations Tenamto makestruegural unlessTenant repairsor alterations hasby its in goodappearance, shallenuse thesameto beoperated in agoodand manner of useof thedemised premises or methodof operation therein, workmanlike manner.shallmakeall repairstheretonecessary to keep violatedany such laws, ordmances, orders,rules,regulations or sameingoodorderandcondition, atTenant's owncostandexpense, und reqmrements withrespect therego.Tenant shallnotdoorpermitanyactor shalleausethesame tobecovered bytheinsurance provided f orhercaner thmg tobedone inortothedemised premises whichis contrary tolaw, or mArticle8. Tenantshall,throughout takegoodcare slictermofthelease. whichwill mvahdate or bein conflictwithpubhehability,lireor other ofthedemised premises(includms,wnhoutlimitation.thestorefmm) and pokeies ofmsurance atsw timecarriedbyorforthehenefn ofOwner, or FILED: QUEENS COUNTY CLERK 01/23/2024 08:22 PM INDEX NO. 724451/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 01/23/2024 iInecessary beto Rider added other or toilets, stairs, elevators, corridors, doorways, doors, passageways, entrances, public location and/or the arrangement changeto other er fire from ordamage as arcsult exist maythat habihty frorn Tenant therefore, of occupancy. Tenantto hability incurring withoutand eviction an constituting relieve shall hereinabove contained Noghing(e) Tenant's same the without time, anyat right the haveshall Owner hereunder. for ready substantially are premises the that Owner notice demised . ligations Tenant's or lease this on ect no have shallact and written after days (5) five resume lity forrent lia Tenant's pro on, cornanyfor Tenant to liability rent, such abatementotherand furniture, eqmpment, shall · * or of possible, reasonably movable and invent sal or limitaten without premises demised the redecorate or renovate s Tenantof all as promptly as ises from aher, emer, immediately may Owner therefrom, propertyTenant's by removirp restoration Owner's cooperate control. with shall Tenant elaims, casual of all ly suor all removedhaveshall Temmi term the of month such any After Owner's beyond cases and troubles labor lastthe duri affected. be hereimder obligations the shal insurance to due delays to subject expedition reasonable if therefore, Tenant of of hereof, adjustmeng event any m nor li itsor oumerrender agents not shall en all with (c) and (b)ofherein, conditions the under restorations and repairs property, Tenam's to is cme reasonable the make Owner for as notice termination a serve such forcibly, exercised permissible, provided shall Tenant. provided and or key master or necessary be may entry shall OwnerUnless to beI retumed datesuch to su such whenever same the enter may egents s Owneror Owner premises, period any of on were whichTenant madesent account of demisedthe into entiyan permit and open to present not is Tenant anyanddatesuch to up paid be shall owing rent anyand terminatioit moleslagion. without thereon remainto to pnor effect provisions If e", or permit shall Tenantnotices such in however,lease the underTenantagaimt remedies which od, and IAt""to notice mual the premises the demised and rights Owner's to quit, prejudice without premises demised upon nee monthssix sad dming may, tenants, prospective the vacate sunender and and forthwith shall knamand lease thisof to same the showing of purposethefor term the of months six lastthe semaination thefor above forthset date thewere ifsuchdate as completely uilding, or mortgagees purchasers prospective to same fullyas expire lease t)iis term the notice in and , of and shall notice, of such specified the of thefor hours reasonable at premises the demised datethe upon and lease, ofsuch gmng the afterdays eo thanmore be not emerto the haveshall Ownerhereof term the otherwise.Throughout shall date which ofthe expiration thefor date a sooner,specifying is or business casualty, of progress,interruption or loss of reasonby damages whicheveror fire such for immanceorthe after adjustment anyto nor in is work suchwhilerent of anyto abatement 30days or casualty or fire suchaAer withingrvenTenam to notice be Tenant the nor eviction, an constituting same the without written by lease this terminate to elect Ownerevents, emitted I such any premisessaidirgo eqmand mat may, necessay all take practicable. premises, in then, it, toor it rebuild to decide shall Owner in demised work of walls, any the during so be shall buildingthe if in or le in damaged are ines wherever or ceili floorspipes, the within concealed are provided demised thenotor or unmable whol are rendered premises therem,conduits ducts, new erect to and premises the the ded. as same the torestore to and demised demised If (d) not elect through and in conduits and pipes replace and maintain and use to Owner rigin Owner's to subjeeg msubsecton as provided apportuned permit Tenam ties. directions other be rent then nant the pet in sooner(or Owner govemmental of and shall reoccupied ulations with ying com of pmpose theforor lease, tlus under by restored and repaired beenhaveshall premises demisedthe when perform to obliis Tenant which any perfonn or perform, repatramake date the until cease shall and casualty thenceforth ofthetime thetoup pad to failure Tenant'sfollowmg demisedthein to elect proportionately be shall provided expressly as rent addittonal may Owner whichor buildmg theof portan any to desirablereasonably of items other rentthe then casually, other or fire unusable wholly necessay deem may Owner as improvements replacements or totally are premises the usable. is and rendered demised If (c) repaisuchmake to and same the to times, reasonable examine other whi · demised ofthe partthe to casualty the following at and, time, any at emergency any in pmmses the from rent, be shall apportioned ed, com substantially be shall the enter demised to be not shall(but obligated) Premises: r suchuntil of items additionai other rentthe Ownerof riginthe haveshall agentsOwner's or Owner 13, to Access expense theat and repairedby be shall the other or fueby unusable patially or rendered are premises satainmay Tenant loss, forth. which expenses or damages any the demised If (b) set hereinafter as for Tenant, to respons ore · 1eOwner make way no in shall service effect and force fullin continue shalllease this Casualty: ofelectric character theof time at change The building. the of tenants and to thereof notice immediate giveshall Other and etherby usereasonableexercised, thereof the with or installations such overload Tenam other or by be damaged shall Fire, iort which, equipment 9. Destruction, I i installation, clectrical thereofany or demised Ifthe (a) usenot may Tenant and or risers theor building d. theto feedersexisting of capacity the exceed not shall currentelectrio wi unreasonably beto not approval writing, of useiss times allat that agrees and covenants such in by a I, by counsel proceeding or action in d or res Tenant' Owner em notice to in conditions 12. Electric er adion any case subtenam. invitee employce, respect and Rates contractor, agent, In any of subgenant, licensee or anyand any of omissions andaces to ng. or assigmnem extends lease this under liabilityTenant'slicensees. or invitees father anyto Owner m writing coment obtaining contractors, agents, 's Tenant, theof conduct · or of from %nant sclieve to be way anyin not construed shall contained. underletti negligencecarelessness, or lease this condition of centractors, on any covenant or anso Owner assignmeng by conseraThe hereinTenang licensees, or invitees, agent, Tenant's knma, of of paid,fees, puttheon ofemenants by Tenant performance the from ofTenamby father