Preview
1 Paul V. Samoni (SBN 240184)
LAW OFFICES OF JOHN A. BIARD
2 P.O. Box 64093
St. Paul, Minnesota 55164-0093
3 Physical Address:
401 Lennon Lane, Suite 125
4 Walnut Creek, California 94598
Telephone: (925) 746-3957
5 Facsimile: (855) 668-5559
E-Mail: psamoni@travelers.com
6
Attorneys for Defendants DOG CLUB POOL, LLC., LIAV LESHEM, INBAL LESHEM, MICHAL
7 REZNIZKI and ORI ZALTZMAN
8 Dean C. Rossi (SBN 188844)
ROSSI DOMINGUE LLP
9 1570 The Alameda, Suite 316
San Jose, CA 95126
10 Telephone: (408) 495-3900
Facsimile: (408) 495-3901
11 E-Mail: dean@rdlaw.net
greg@rdlaw.net
12
Attorneys for Cross-Complainants DOG CLUB POOL, LLC., LIAV LESHEM, INBAL LESHEM,
13 MICHAL REZNIZKI and ORI ZALTZMAN
14 SUPERIOR COURT OF THE STATE OF CALIFORNIA
15 IN AND FOR THE COUNTY OF SAN MATEO
16
17 DEL SARTO 1997 FAMILY LIMITED Case No.: 21-CIV-04985
PARTNERSHIP, ROLLEN H. STEELE and
18 ANGELA PIETRO STEELE, Trustees of the EVIDENCE IN SUPPORT OF DEFENDANTS
Steele Family 2014 Trust dated March 26, 2014, LIAV LESHEM’S, INBAL LESHEM’S,
19 MICHAL REZNIZKI’S, AND ORI
Plaintiffs, ZALTZMAN’S MOTION FOR SUMMARY
20 JUDGMENT
vs.
21 Date: July 18, 2024
DOG CLUB POOL, LLC, a California limited Time: 2:00 p.m.
22 liability company, LIAV LESHEM, INBAL Department: 3 (Courtroom 2B)
LESHEM, MICHAL REZNIZKI, ORI
23 ZALTZMAN and DOES 1 through 20, inclusive, The Honorable Susan L. Greenberg
24 Defendants.
25
AND ALL RELATED CROSS-ACTIONS.
26
27
28
-1-
EVIDENCE IN SUPPORT OF DEFENDANTS LIAV LESHEM’S, INBAL LESHEM’S, MICHAL REZNIZKI’S, AND ORI
ZALTZMAN’S MOTION FOR SUMMARY JUDGMENT
1 Pursuant to California Rules of Court, Rule 3.1350(g), defendants Liav Leshem, Inbal Leshem,
2 Michal Reznizki, and Ori Zaltzman hereby submit the following evidence in support of their motion for
3 summary judgment:
4
5 Exhibit Document
6
A Plaintiffs’ Complaint
7
8 B June 15, 2018 Lease for 1129 Old County Road, San Carlos
9
C Guaranty (Exhibit B) to June 15, 2018 Lease of 1129 Old County Road, San Carlos
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11 D Deposition excerpts from the January 31, 2024 deposition of Thomas Del Sarto
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E Declaration of Liav Leshem in Support of Defendants’ Motion for Summary Judgment
13
14 F Declaration of Inbal Leshem in Support of Defendants’ Motion for Summary Judgment
15
G Declaration of Michal Reznizki in Support of Defendants’ Motion for Summary Judgment
16
17 H Declaration of Ori Zaltzman in Support of Defendants’ Motion for Summary Judgment
18
I Declaration of Paul V. Samoni in Support of Defendants’ Motion for Summary Judgment
19
20
21 Dated: April 19, 2024 LAW OFFICES OF JOHN A. BIARD
22
23 Paul V. Samoni
Attorneys for Defendants DOG CLUB POOL, LLC.,
24 LIAV LESHEM, INBAL LESHEM, MICHAL
REZNIZKI and ORI ZALTZMAN
25
26
27
28
-2-
EVIDENCE IN SUPPORT OF DEFENDANTS LIAV LESHEM’S, INBAL LESHEM’S, MICHAL REZNIZKI’S, AND ORI
ZALTZMAN’S MOTION FOR SUMMARY JUDGMENT
EXHIBIT A
Electronically
FILED
1
by Superior Court of California, County of San Mateo
P. Kurt Peterson (SBN 067123) ON 9/15/2021
Karl J.F. Runft (SBN 262163)
2 Peterson Martin & Reynolds, LLP By /s/ Anthony Berini
Deputy Clerk
985 Moraga Road, Suite 210
3 Lafayette, CA 94549
Telephone: 415-399-2900
4 Facsimile: 415-399-2930
5 Attorneys for Plaintiffs
The Del Sarto 1997 Family Limited Partnership, and
6 Rollen H. Steele and Angela Pietro Steele, Trustees of
the Steele Family 2014 Trust dated March 26, 2014
7
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
985 MOR AGA R OAD, SUI TE 210, LAFAYETTE, CALI FOR NI A 94549
10
11
LLP
DEL SARTO 1997 FAMILY LIMITED CASE NO. 21-CIV-04985
415-399-2900 FAX 415-399-2930
12 PARTNERSHIP, ROLLEN H. STEELE
PETERSON MARTIN REYNOLDS
and ANGELA PIETRO STEELE, Trustees COMPLAINT FOR BREACH OF LEASE
13 of the Steele Family 2014 Trust dated AND DAMAGES
L AW O F F ICE S
March 26, 2014,
14
Plaintiffs,
15
vs.
16
DOG CLUB POOL, LLC, a California
17 limited liability company, LIAV LESHEM,
INBAL LESHEM, MICHAL REZNIZKI,
18 ORI ZALTZMAN and DOES 1 through 20,
19 Defendants.
20
Plaintiffs the DEL SARTO 1997 FAMILY LIMITED PARTNERSHIP and ROLLEN H.
21
STEELE and ANGELA PIETRO STEELE, Trustees of the Steele Family 2014 Trust dated
22
March 26, 2014 (hereinafter collectively “Plaintiffs”), complain and allege as follows:
23
1. Plaintiff DEL SARTO 1997 FAMILY LIMITED PARTNERSHIP is a California
24
limited partnership with its principal place of business in Menlo Park, California.
25
2. Plaintiffs ROLLEN H. STEELE and ANGELA PIETRO STEELE are residents of
26
Emerald Hills, California and are trustees of the Steele Family 2014 Trust dated March 26, 2014.
27
28
COMPLAINT FOR BREACH OF 1
LEASE AND DAMAGES
1 3. Defendant DOG CLUB POOL, LLC (hereinafter “DCP”), is a California limited
2 liability company with its principal place of business located in San Carlos, CA.
3 4. Defendants LIAV LESHEM and INBAL LESHEM are residents of Sunnyvale,
4 California and are manager/members of DCP.
5 5. Defendants MICHAL REZNIZKI and ORI ZALTZMAN are residents of Menlo
6 Park, California and are manager/members of DCP
7 6. Defendants DOES 1 through 20, inclusive, are sued herein under fictitious names.
8 Their true names and capacities are unknown to Plaintiffs. When the true names and capacities
9 are ascertained, Plaintiffs will amend this complaint and insert their true names and capacities
985 MOR AGA R OAD, SUI TE 210, LAFAYETTE, CALI FOR NI A 94549
10 herein.
11 7. Plaintiffs are informed and believe and thereon allege that each of the Defendants
LLP
415-399-2900 FAX 415-399-2930
12 herein, including the fictitiously named Defendants, were at all times herein mentioned the agents
PETERSON MARTIN REYNOLDS
13 and/or employees of the other Defendants and acting within the course and scope of that agency
L AW O F F ICE S
14 or employment, and/or are the assignees, successors and/or predecessors of the other Defendants.
15 GENERAL ALLEGATIONS
16 8. Plaintiffs reallege and incorporate herein by this reference each and every
17 allegation contained in paragraphs 1 through 7 of this Complaint as though fully set forth herein.
18 9. Plaintiffs are the owners and lessors of certain commercial real property located in
19 San Mateo County, State of California, with a street address of 1129 Old County Road, San
20 Carlos, CA 94070, and consisting of an approximately 5,300 square foot building on an
21 approximately 28,924 square foot parcel of land (together, the “Premises”).
22 10. On or about June 15, 2018, DCP entered into a lease (the “Lease”) to rent the
23 Premises for the purpose of operating a dog grooming, dog exercise (including in above ground
24 pools), dog daycare and pet product sales business (the “Dog Pool business”). The Lease is
25 attached as Exhibit A to this Complaint and its terms and conditions are incorporated in full
26 herein.
27 11. As an inducement to Plaintiffs to enter into the Lease, Defendants Liav Leshem,
28 Inbal Leshem, Michal Reznizki and Ori Zaltzman each entered into a guaranty (the “Guarantee”)
COMPLAINT FOR BREACH OF 2
LEASE AND DAMAGES
1 to personally, jointly and severally guaranty the full and faithful performance of Defendant
2 DCP’s covenants and obligations under the Lease.
3 12. The term of the Lease was five years and three months.
4 13. Sometime after June 15, 2018, DCP entered into possession of the Premises,
5 started paying rent and also constructed tenant improvements, alterations and additions in order to
6 operate its Dog Pool business, which included two water containment facilities (large dog
7 swimming pools) as well as other structures. Once completed, DCP commenced operations.
8 14. Plaintiffs exercised their right under Section 22 of the Lease to have their agents
9 inspect the Premises, first, on February 10, 2021, and then again on March 8, 2021.
985 MOR AGA R OAD, SUI TE 210, LAFAYETTE, CALI FOR NI A 94549
10 15. Upon inspection, Plaintiffs’ inspection consultant discovered numerous
11 maintenance and repair issues at the Premises caused by DCP’s failure to properly maintain the
LLP
415-399-2900 FAX 415-399-2930
12 Premises, including water/moisture damage to the Premises from DCP’s dog swimming pool
PETERSON MARTIN REYNOLDS
13 operations. The maintenance and repair issues Plaintiffs’ inspection consultant identified
L AW O F F ICE S
14 included, but were not limited to, damage to dry wall and wall insulation throughout the walls of
15 the Premises from water intrusion, the presence of mold throughout the wall cavities from water
16 intrusion, rusted and corroded door frames and other metal components throughout the Premises
17 from water intrusion, damage to the aluminum storefront frame from efflorescence and/or
18 corrosion, damage to the storefront glass requiring heavy de-scaling and cleaning, damage to the
19 concrete floor slab from exposure to chlorine chemicals used in the operation of the dog
20 swimming pool, and corrosion of the HVAC ducting and vents resulting from exposure to
21 moisture and chlorine chemicals.
22 16. On or about May 24, 2021, Plaintiffs, through its agent, delivered notice to repair
23 to DCP regarding the outstanding repair and maintenance items above, notifying DCP that it was
24 required to make the necessary repairs to the damage and defects within 30 days of the notice.
25 17. On or about June 16, 2021, DCP gave notice to Plaintiffs that DCP was “electing
26 to terminate the lease,” stating DCP would vacate the premises as of June 30, 2021.
27 18. DCP’s “election to terminate the lease” was without contractual basis in the Lease
28 and of no effect.
COMPLAINT FOR BREACH OF 3
LEASE AND DAMAGES
1 19. Thereafter, on or about June 18, 2021, DCP ceased its Dog Pool business
2 operations at the Premises, and vacated and abandoned the Premises. In vacating and abandoning
3 the Premises, DCP failed to make the necessary repairs to the damage and defects noted in the
4 May 24, 2021 notice of repair and default, failed altogether to repair and restore the Premises, and
5 failed to leave the Premises in broom clean and good condition with all fixtures, personal
6 property and equipment removed.
7 20. DCP failed to pay rent for the month of July, 2021 and made no further rent
8 payments thereafter.
9 21. On or about July 3, 2021, Plaintiffs’ counsel delivered notice to DCP that DCP
985 MOR AGA R OAD, SUI TE 210, LAFAYETTE, CALI FOR NI A 94549
10 was in default of the Lease for failure to pay rent, notifying DCP that it was required to cure the
11 rent default within 10 days of notice, and that DCP also was in default for abandonment of the
LLP
415-399-2900 FAX 415-399-2930
12 Premises and for failing to fulfill DCP’s repair and maintenance obligations as detailed in its
PETERSON MARTIN REYNOLDS
13 previous May 24, 2021 notice.
L AW O F F ICE S
14 22. DCP failed and refused to timely cure or remedy its defaults under the Lease and
15 Plaintiffs terminated the Lease pursuant to Section 30(b).
16 23. Guarantors have breached their guaranty obligations under the Guaranty and under
17 the terms of the Lease by failing to perform any and all obligations and liabilities of DCP under
18 the terms of the Lease.
19 FIRST CAUSE OF ACTION
(Breach of Lease for Failure to Pay Rent)
20
24. Plaintiffs reallege and incorporate herein by this reference each and every
21
allegation contained in paragraphs 1 through 23 of this Complaint as though fully set forth herein.
22
25. DCP was obligated under Sections 2 and 3 of the Lease to make monthly
23
payments of Base Rent (as defined in the Lease) and Additional Rent (as defined in the Lease),
24
which was as of July of 2021, $18,858.28 per month. The Base Rent and Additional Rent
25
payments were subject to scheduled annual increases as set forth in the Lease.
26
26. Plaintiffs have performed all conditions, covenants and promises under the Lease
27
required on their part to be performed. Although demand was made for DCP to honor and
28
COMPLAINT FOR BREACH OF 4
LEASE AND DAMAGES
1 perform its obligations under the terms of the Lease regarding payment of rent, DCP failed to do
2 so.
3 27. By failing to make to make it’s rent payment for July, 2021, and for all months
4 thereafter, DCP has defaulted and breached the Lease agreement, entitling Plaintiffs to damages
5 in the amount the past and prospective lost rent to until the expiration of the Lease on or about
6 September 15, 2023, which Plaintiffs estimate, subject to proof at trial, to be in excess of
7 $500,000.
8 28. Under Section 30(b)(i)(D), Plaintiffs are also entitled to “any other amount
9 necessary to compensate Landlord for the detriment proximately caused by Tenant's failure to
985 MOR AGA R OAD, SUI TE 210, LAFAYETTE, CALI FOR NI A 94549
10 perform Tenant's obligations under this Lease,” which includes, but is not limited to, the
11 commission paid by Plaintiffs to secure DCP as a tenant as well as utilities and other maintenance
LLP
415-399-2900 FAX 415-399-2930
12 and inspection costs at the Premises, which Plaintiffs estimate, subject to proof at trial, to be in
PETERSON MARTIN REYNOLDS
13 excess of $60,000.
L AW O F F ICE S
14 29. As the proximate, and foreseeable result of DCP’s breach, Plaintiffs have been
15 damaged in an amount which exceeds the jurisdictional amount of this court, and are entitled to
16 damages against DCP, in the form of lost rent and other related damages in an amount in excess
17 of $560,000, plus interest at the rate of 10% per annum as provided in the Lease.
18 30. The Lease contains an attorney fees clause providing that in any dispute between
19 Plaintiff and DCP in any way related to the Lease, and whether involving contract and/or tort
20 claims, the non-prevailing party shall pay to the prevailing party all reasonable attorney fees and
21 costs, and in accordance with said Lease clause, Plaintiff herein is entitled to an award of
22 reasonable attorney fees and costs in bringing this action against DCP.
23 WHEREFORE, PLAINTIFFS pray for judgment as hereinafter set forth.
24 SECOND CAUSE OF ACTION
(Breach of Lease for Failure to Repair and Maintain Premises)
25
31. Plaintiffs reallege and incorporate herein by this reference each and every
26
allegation contained in paragraphs 1 through 23 of this Complaint as though fully set forth herein.
27
28
COMPLAINT FOR BREACH OF 5
LEASE AND DAMAGES
1 32. Section 33 of the Lease required DCP to, at DCP’s “sole cost and expense and at
2 all times, keep the Premises and every part thereof in good order, condition and repair ordinary
3 wear and tear excepted…”.
4 33. During the term of its tenancy from before March, 2021 and thereafter, DCP
5 breached its obligations under Section 33 of the Lease by failing to keep the Premises in good
6 order, condition and repair and caused damage beyond ordinary wear and tear at the Premises,
7 including, but not limited to, damage to dry wall and wall insulation throughout the walls of the
8 Premises from water intrusion, the presence of mold throughout the wall cavities from water
9 intrusion, rusted and corroded door frames and other metal components throughout the Premises
985 MOR AGA R OAD, SUI TE 210, LAFAYETTE, CALI FOR NI A 94549
10 from water intrusion, damage to the aluminum storefront frame from efflorescence and/or
11 corrosion, damage to the storefront glass requiring heavy de-scaling and cleaning, damage to the
LLP
415-399-2900 FAX 415-399-2930
12 concrete floor slab from exposure to chlorine chemicals used in the operation of the dog
PETERSON MARTIN REYNOLDS
13 swimming pool, and corrosion of the HVAC ducting and vents resulting from exposure to
L AW O F F ICE S
14 moisture and chlorine chemicals.
15 34. DCP failed to perform the necessary work to remedy and restore the repair and
16 maintenance problems, even after notice from Plaintiffs to do, and thereby breached the Lease.
17 35. Plaintiffs have sustained damages resulting from DCP’s failure to maintain, repair
18 and restore the Premises in an amount subject to proof at trial but estimated to be in excess of
19 $150,000.
20 36. As the proximate, and foreseeable result of DCP’s breach, Plaintiffs have been
21 damaged in an amount which exceeds the jurisdictional amount of this court, and are entitled to
22 damages against DCP, in the form of lost rent and other related damages in an amount in excess
23 of $150,000, plus interest at the rate of 10% per annum as provided in the Lease.
24 37. The Lease contains an attorney fees clause providing that in any dispute between
25 Plaintiff and DCP in any way related to the Lease, and whether involving contract and/or tort
26 claims, the non-prevailing party shall pay to the prevailing party all reasonable attorney fees and
27 costs, and in accordance with said Lease clause, Plaintiff herein is entitled to an award of
28 reasonable attorney fees and costs in bringing this action against DCP.
COMPLAINT FOR BREACH OF 6
LEASE AND DAMAGES
1 WHEREFORE, PLAINTIFFS pray for judgment as hereinafter set forth.
2 THIRD CAUSE OF ACTION
(Breach of Lease for Failure to Restore Premises)
3
38. Plaintiffs reallege and incorporate herein by this reference each and every
4
allegation contained in paragraphs 1 through 23 and 31 through 37 of this Complaint as though
5
fully set forth herein.
6
39. Under Section 8(d)(ii) of the Lease, DCP agreed to restore the Premises at
7
expiration or earlier termination of the Lease to its original condition, to remove the alterations
8
and improvements made by DCP, and to repair all damage caused to the Premises by such
9
installation or removal, including, but not limited to, the two above ground pools, the decking
985 MOR AGA R OAD, SUI TE 210, LAFAYETTE, CALI FOR NI A 94549
10
around the pools, the outside logo signs, ventilation fans, and the retail mounts on walls.
11
LLP
40. DCP breached the Lease by failing to restore, remove and repair its alterations and
415-399-2900 FAX 415-399-2930
12
PETERSON MARTIN REYNOLDS
improvements, including, but not limited to, the two above ground pools, the decking around the
13
L AW O F F ICE S
pools, the outside logo signs, ventilation fans, and the retail mounts on walls, as required by the
14
lease upon expiration or earlier termination of the Lease.
15
41. Plaintiffs have and will sustain damages in the form of costs to remove DCP’s
16
alterations and improvements from the Premises, and to repair and restore the Premises, which
17
Plaintiffs estimate, subject to proof at trial, to be in excess of $30,000.
18
42. As the proximate, and foreseeable result of DCP’s breach, Plaintiffs have been
19
damaged in an amount which exceeds the jurisdictional amount of this court, and are entitled to
20
damages against DCP, in the form of lost rent and other related damages in an amount in excess
21
of $30,000, plus interest at the rate of 10% per annum as provided in the Lease.
22
43. The Lease contains an attorney fees clause providing that in any dispute between
23
Plaintiff and DCP in any way related to the Lease, and whether involving contract and/or tort
24
claims, the non-prevailing party shall pay to the prevailing party all reasonable attorney fees and
25
costs, and in accordance with said Lease clause, Plaintiff herein is entitled to an award of
26
reasonable attorney fees and costs in bringing this action against DCP.
27
WHEREFORE, PLAINTIFFS pray for judgment as hereinafter set forth.
28
COMPLAINT FOR BREACH OF 7
LEASE AND DAMAGES
1 FOURTH CAUSE OF ACTION
(Breach of Guaranty)
2
44. Plaintiffs reallege and incorporate herein by this reference each and every
3
allegation contained in paragraphs 1 through 45 of this Complaint as though fully set forth herein.
4
45. As an inducement to Plaintiffs to enter into the Lease, Defendants Liav Leshem,
5
Inbal Leshem, Michal Reznizki and Ori Zaltzman each entered into the Guaranty to personally,
6
jointly and severally guaranty the full and faithful performance of Defendant DCP’s covenants
7
and obligations under the Lease.
8
46. Further, the Defendants Liav Leshem, Inbal Leshem, Michal Reznizki and Ori
9
Zaltzman signed the Guaranty as co-primary obligors on the Lease and not secondary obligors,
985 MOR AGA R OAD, SUI TE 210, LAFAYETTE, CALI FOR NI A 94549
10
such that Plaintiffs may directly seek against them any and all damages or debts caused or accrued
11
LLP
by DCP under the Lease as if they were principals on the Lease.
415-399-2900 FAX 415-399-2930
12
PETERSON MARTIN REYNOLDS
47. On or about May 24, 2021, Plaintiffs, through its agent, delivered a notice to repair
13
L AW O F F ICE S
to DCP regarding outstanding repair and maintenance items that DCP had failed to correct,
14
notifying DCP that it was required to make the necessary repairs to the damage and defects within
15
30 days of the notice or DCP would be in default of the Lease per Section 30(a)(vii) thereof.
16
48. On or about July 3, 2021, Plaintiffs’ counsel delivered notice to DCP that DCP had
17
failed to pay rent for that month, notifying DCP that it was required to cure the rent deficiency
18
within 10 days of the notice or DCP would be in default of Lease per Section 30(a)(i) thereof.
19
49. DCP neither commenced repairs per the May 24, 2021 notice nor paid any further
20
rent under the Lease per the July 3, 2021 notice, and DCP defaulted on the Lease.
21
Preview
1 Paul V. Samoni (SBN 240184) LAW OFFICES OF JOHN A. BIARD 2 P.O. Box 64093 St. Paul, Minnesota 55164-0093 3 Physical Address: 401 Lennon Lane, Suite 125 4 Walnut Creek, California 94598 Telephone: (925) 746-3957 5 Facsimile: (855) 668-5559 E-Mail: psamoni@travelers.com 6 Attorneys for Defendants DOG CLUB POOL, LLC., LIAV LESHEM, INBAL LESHEM, MICHAL 7 REZNIZKI and ORI ZALTZMAN 8 Dean C. Rossi (SBN 188844) ROSSI DOMINGUE LLP 9 1570 The Alameda, Suite 316 San Jose, CA 95126 10 Telephone: (408) 495-3900 Facsimile: (408) 495-3901 11 E-Mail: dean@rdlaw.net greg@rdlaw.net 12 Attorneys for Cross-Complainants DOG CLUB POOL, LLC., LIAV LESHEM, INBAL LESHEM, 13 MICHAL REZNIZKI and ORI ZALTZMAN 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 IN AND FOR THE COUNTY OF SAN MATEO 16 17 DEL SARTO 1997 FAMILY LIMITED Case No.: 21-CIV-04985 PARTNERSHIP, ROLLEN H. STEELE and 18 ANGELA PIETRO STEELE, Trustees of the EVIDENCE IN SUPPORT OF DEFENDANTS Steele Family 2014 Trust dated March 26, 2014, LIAV LESHEM’S, INBAL LESHEM’S, 19 MICHAL REZNIZKI’S, AND ORI Plaintiffs, ZALTZMAN’S MOTION FOR SUMMARY 20 JUDGMENT vs. 21 Date: July 18, 2024 DOG CLUB POOL, LLC, a California limited Time: 2:00 p.m. 22 liability company, LIAV LESHEM, INBAL Department: 3 (Courtroom 2B) LESHEM, MICHAL REZNIZKI, ORI 23 ZALTZMAN and DOES 1 through 20, inclusive, The Honorable Susan L. Greenberg 24 Defendants. 25 AND ALL RELATED CROSS-ACTIONS. 26 27 28 -1- EVIDENCE IN SUPPORT OF DEFENDANTS LIAV LESHEM’S, INBAL LESHEM’S, MICHAL REZNIZKI’S, AND ORI ZALTZMAN’S MOTION FOR SUMMARY JUDGMENT 1 Pursuant to California Rules of Court, Rule 3.1350(g), defendants Liav Leshem, Inbal Leshem, 2 Michal Reznizki, and Ori Zaltzman hereby submit the following evidence in support of their motion for 3 summary judgment: 4 5 Exhibit Document 6 A Plaintiffs’ Complaint 7 8 B June 15, 2018 Lease for 1129 Old County Road, San Carlos 9 C Guaranty (Exhibit B) to June 15, 2018 Lease of 1129 Old County Road, San Carlos 10 11 D Deposition excerpts from the January 31, 2024 deposition of Thomas Del Sarto 12 E Declaration of Liav Leshem in Support of Defendants’ Motion for Summary Judgment 13 14 F Declaration of Inbal Leshem in Support of Defendants’ Motion for Summary Judgment 15 G Declaration of Michal Reznizki in Support of Defendants’ Motion for Summary Judgment 16 17 H Declaration of Ori Zaltzman in Support of Defendants’ Motion for Summary Judgment 18 I Declaration of Paul V. Samoni in Support of Defendants’ Motion for Summary Judgment 19 20 21 Dated: April 19, 2024 LAW OFFICES OF JOHN A. BIARD 22 23 Paul V. Samoni Attorneys for Defendants DOG CLUB POOL, LLC., 24 LIAV LESHEM, INBAL LESHEM, MICHAL REZNIZKI and ORI ZALTZMAN 25 26 27 28 -2- EVIDENCE IN SUPPORT OF DEFENDANTS LIAV LESHEM’S, INBAL LESHEM’S, MICHAL REZNIZKI’S, AND ORI ZALTZMAN’S MOTION FOR SUMMARY JUDGMENT EXHIBIT A Electronically FILED 1 by Superior Court of California, County of San Mateo P. Kurt Peterson (SBN 067123) ON 9/15/2021 Karl J.F. Runft (SBN 262163) 2 Peterson Martin & Reynolds, LLP By /s/ Anthony Berini Deputy Clerk 985 Moraga Road, Suite 210 3 Lafayette, CA 94549 Telephone: 415-399-2900 4 Facsimile: 415-399-2930 5 Attorneys for Plaintiffs The Del Sarto 1997 Family Limited Partnership, and 6 Rollen H. Steele and Angela Pietro Steele, Trustees of the Steele Family 2014 Trust dated March 26, 2014 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 985 MOR AGA R OAD, SUI TE 210, LAFAYETTE, CALI FOR NI A 94549 10 11 LLP DEL SARTO 1997 FAMILY LIMITED CASE NO. 21-CIV-04985 415-399-2900 FAX 415-399-2930 12 PARTNERSHIP, ROLLEN H. STEELE PETERSON MARTIN REYNOLDS and ANGELA PIETRO STEELE, Trustees COMPLAINT FOR BREACH OF LEASE 13 of the Steele Family 2014 Trust dated AND DAMAGES L AW O F F ICE S March 26, 2014, 14 Plaintiffs, 15 vs. 16 DOG CLUB POOL, LLC, a California 17 limited liability company, LIAV LESHEM, INBAL LESHEM, MICHAL REZNIZKI, 18 ORI ZALTZMAN and DOES 1 through 20, 19 Defendants. 20 Plaintiffs the DEL SARTO 1997 FAMILY LIMITED PARTNERSHIP and ROLLEN H. 21 STEELE and ANGELA PIETRO STEELE, Trustees of the Steele Family 2014 Trust dated 22 March 26, 2014 (hereinafter collectively “Plaintiffs”), complain and allege as follows: 23 1. Plaintiff DEL SARTO 1997 FAMILY LIMITED PARTNERSHIP is a California 24 limited partnership with its principal place of business in Menlo Park, California. 25 2. Plaintiffs ROLLEN H. STEELE and ANGELA PIETRO STEELE are residents of 26 Emerald Hills, California and are trustees of the Steele Family 2014 Trust dated March 26, 2014. 27 28 COMPLAINT FOR BREACH OF 1 LEASE AND DAMAGES 1 3. Defendant DOG CLUB POOL, LLC (hereinafter “DCP”), is a California limited 2 liability company with its principal place of business located in San Carlos, CA. 3 4. Defendants LIAV LESHEM and INBAL LESHEM are residents of Sunnyvale, 4 California and are manager/members of DCP. 5 5. Defendants MICHAL REZNIZKI and ORI ZALTZMAN are residents of Menlo 6 Park, California and are manager/members of DCP 7 6. Defendants DOES 1 through 20, inclusive, are sued herein under fictitious names. 8 Their true names and capacities are unknown to Plaintiffs. When the true names and capacities 9 are ascertained, Plaintiffs will amend this complaint and insert their true names and capacities 985 MOR AGA R OAD, SUI TE 210, LAFAYETTE, CALI FOR NI A 94549 10 herein. 11 7. Plaintiffs are informed and believe and thereon allege that each of the Defendants LLP 415-399-2900 FAX 415-399-2930 12 herein, including the fictitiously named Defendants, were at all times herein mentioned the agents PETERSON MARTIN REYNOLDS 13 and/or employees of the other Defendants and acting within the course and scope of that agency L AW O F F ICE S 14 or employment, and/or are the assignees, successors and/or predecessors of the other Defendants. 15 GENERAL ALLEGATIONS 16 8. Plaintiffs reallege and incorporate herein by this reference each and every 17 allegation contained in paragraphs 1 through 7 of this Complaint as though fully set forth herein. 18 9. Plaintiffs are the owners and lessors of certain commercial real property located in 19 San Mateo County, State of California, with a street address of 1129 Old County Road, San 20 Carlos, CA 94070, and consisting of an approximately 5,300 square foot building on an 21 approximately 28,924 square foot parcel of land (together, the “Premises”). 22 10. On or about June 15, 2018, DCP entered into a lease (the “Lease”) to rent the 23 Premises for the purpose of operating a dog grooming, dog exercise (including in above ground 24 pools), dog daycare and pet product sales business (the “Dog Pool business”). The Lease is 25 attached as Exhibit A to this Complaint and its terms and conditions are incorporated in full 26 herein. 27 11. As an inducement to Plaintiffs to enter into the Lease, Defendants Liav Leshem, 28 Inbal Leshem, Michal Reznizki and Ori Zaltzman each entered into a guaranty (the “Guarantee”) COMPLAINT FOR BREACH OF 2 LEASE AND DAMAGES 1 to personally, jointly and severally guaranty the full and faithful performance of Defendant 2 DCP’s covenants and obligations under the Lease. 3 12. The term of the Lease was five years and three months. 4 13. Sometime after June 15, 2018, DCP entered into possession of the Premises, 5 started paying rent and also constructed tenant improvements, alterations and additions in order to 6 operate its Dog Pool business, which included two water containment facilities (large dog 7 swimming pools) as well as other structures. Once completed, DCP commenced operations. 8 14. Plaintiffs exercised their right under Section 22 of the Lease to have their agents 9 inspect the Premises, first, on February 10, 2021, and then again on March 8, 2021. 985 MOR AGA R OAD, SUI TE 210, LAFAYETTE, CALI FOR NI A 94549 10 15. Upon inspection, Plaintiffs’ inspection consultant discovered numerous 11 maintenance and repair issues at the Premises caused by DCP’s failure to properly maintain the LLP 415-399-2900 FAX 415-399-2930 12 Premises, including water/moisture damage to the Premises from DCP’s dog swimming pool PETERSON MARTIN REYNOLDS 13 operations. The maintenance and repair issues Plaintiffs’ inspection consultant identified L AW O F F ICE S 14 included, but were not limited to, damage to dry wall and wall insulation throughout the walls of 15 the Premises from water intrusion, the presence of mold throughout the wall cavities from water 16 intrusion, rusted and corroded door frames and other metal components throughout the Premises 17 from water intrusion, damage to the aluminum storefront frame from efflorescence and/or 18 corrosion, damage to the storefront glass requiring heavy de-scaling and cleaning, damage to the 19 concrete floor slab from exposure to chlorine chemicals used in the operation of the dog 20 swimming pool, and corrosion of the HVAC ducting and vents resulting from exposure to 21 moisture and chlorine chemicals. 22 16. On or about May 24, 2021, Plaintiffs, through its agent, delivered notice to repair 23 to DCP regarding the outstanding repair and maintenance items above, notifying DCP that it was 24 required to make the necessary repairs to the damage and defects within 30 days of the notice. 25 17. On or about June 16, 2021, DCP gave notice to Plaintiffs that DCP was “electing 26 to terminate the lease,” stating DCP would vacate the premises as of June 30, 2021. 27 18. DCP’s “election to terminate the lease” was without contractual basis in the Lease 28 and of no effect. COMPLAINT FOR BREACH OF 3 LEASE AND DAMAGES 1 19. Thereafter, on or about June 18, 2021, DCP ceased its Dog Pool business 2 operations at the Premises, and vacated and abandoned the Premises. In vacating and abandoning 3 the Premises, DCP failed to make the necessary repairs to the damage and defects noted in the 4 May 24, 2021 notice of repair and default, failed altogether to repair and restore the Premises, and 5 failed to leave the Premises in broom clean and good condition with all fixtures, personal 6 property and equipment removed. 7 20. DCP failed to pay rent for the month of July, 2021 and made no further rent 8 payments thereafter. 9 21. On or about July 3, 2021, Plaintiffs’ counsel delivered notice to DCP that DCP 985 MOR AGA R OAD, SUI TE 210, LAFAYETTE, CALI FOR NI A 94549 10 was in default of the Lease for failure to pay rent, notifying DCP that it was required to cure the 11 rent default within 10 days of notice, and that DCP also was in default for abandonment of the LLP 415-399-2900 FAX 415-399-2930 12 Premises and for failing to fulfill DCP’s repair and maintenance obligations as detailed in its PETERSON MARTIN REYNOLDS 13 previous May 24, 2021 notice. L AW O F F ICE S 14 22. DCP failed and refused to timely cure or remedy its defaults under the Lease and 15 Plaintiffs terminated the Lease pursuant to Section 30(b). 16 23. Guarantors have breached their guaranty obligations under the Guaranty and under 17 the terms of the Lease by failing to perform any and all obligations and liabilities of DCP under 18 the terms of the Lease. 19 FIRST CAUSE OF ACTION (Breach of Lease for Failure to Pay Rent) 20 24. Plaintiffs reallege and incorporate herein by this reference each and every 21 allegation contained in paragraphs 1 through 23 of this Complaint as though fully set forth herein. 22 25. DCP was obligated under Sections 2 and 3 of the Lease to make monthly 23 payments of Base Rent (as defined in the Lease) and Additional Rent (as defined in the Lease), 24 which was as of July of 2021, $18,858.28 per month. The Base Rent and Additional Rent 25 payments were subject to scheduled annual increases as set forth in the Lease. 26 26. Plaintiffs have performed all conditions, covenants and promises under the Lease 27 required on their part to be performed. Although demand was made for DCP to honor and 28 COMPLAINT FOR BREACH OF 4 LEASE AND DAMAGES 1 perform its obligations under the terms of the Lease regarding payment of rent, DCP failed to do 2 so. 3 27. By failing to make to make it’s rent payment for July, 2021, and for all months 4 thereafter, DCP has defaulted and breached the Lease agreement, entitling Plaintiffs to damages 5 in the amount the past and prospective lost rent to until the expiration of the Lease on or about 6 September 15, 2023, which Plaintiffs estimate, subject to proof at trial, to be in excess of 7 $500,000. 8 28. Under Section 30(b)(i)(D), Plaintiffs are also entitled to “any other amount 9 necessary to compensate Landlord for the detriment proximately caused by Tenant's failure to 985 MOR AGA R OAD, SUI TE 210, LAFAYETTE, CALI FOR NI A 94549 10 perform Tenant's obligations under this Lease,” which includes, but is not limited to, the 11 commission paid by Plaintiffs to secure DCP as a tenant as well as utilities and other maintenance LLP 415-399-2900 FAX 415-399-2930 12 and inspection costs at the Premises, which Plaintiffs estimate, subject to proof at trial, to be in PETERSON MARTIN REYNOLDS 13 excess of $60,000. L AW O F F ICE S 14 29. As the proximate, and foreseeable result of DCP’s breach, Plaintiffs have been 15 damaged in an amount which exceeds the jurisdictional amount of this court, and are entitled to 16 damages against DCP, in the form of lost rent and other related damages in an amount in excess 17 of $560,000, plus interest at the rate of 10% per annum as provided in the Lease. 18 30. The Lease contains an attorney fees clause providing that in any dispute between 19 Plaintiff and DCP in any way related to the Lease, and whether involving contract and/or tort 20 claims, the non-prevailing party shall pay to the prevailing party all reasonable attorney fees and 21 costs, and in accordance with said Lease clause, Plaintiff herein is entitled to an award of 22 reasonable attorney fees and costs in bringing this action against DCP. 23 WHEREFORE, PLAINTIFFS pray for judgment as hereinafter set forth. 24 SECOND CAUSE OF ACTION (Breach of Lease for Failure to Repair and Maintain Premises) 25 31. Plaintiffs reallege and incorporate herein by this reference each and every 26 allegation contained in paragraphs 1 through 23 of this Complaint as though fully set forth herein. 27 28 COMPLAINT FOR BREACH OF 5 LEASE AND DAMAGES 1 32. Section 33 of the Lease required DCP to, at DCP’s “sole cost and expense and at 2 all times, keep the Premises and every part thereof in good order, condition and repair ordinary 3 wear and tear excepted…”. 4 33. During the term of its tenancy from before March, 2021 and thereafter, DCP 5 breached its obligations under Section 33 of the Lease by failing to keep the Premises in good 6 order, condition and repair and caused damage beyond ordinary wear and tear at the Premises, 7 including, but not limited to, damage to dry wall and wall insulation throughout the walls of the 8 Premises from water intrusion, the presence of mold throughout the wall cavities from water 9 intrusion, rusted and corroded door frames and other metal components throughout the Premises 985 MOR AGA R OAD, SUI TE 210, LAFAYETTE, CALI FOR NI A 94549 10 from water intrusion, damage to the aluminum storefront frame from efflorescence and/or 11 corrosion, damage to the storefront glass requiring heavy de-scaling and cleaning, damage to the LLP 415-399-2900 FAX 415-399-2930 12 concrete floor slab from exposure to chlorine chemicals used in the operation of the dog PETERSON MARTIN REYNOLDS 13 swimming pool, and corrosion of the HVAC ducting and vents resulting from exposure to L AW O F F ICE S 14 moisture and chlorine chemicals. 15 34. DCP failed to perform the necessary work to remedy and restore the repair and 16 maintenance problems, even after notice from Plaintiffs to do, and thereby breached the Lease. 17 35. Plaintiffs have sustained damages resulting from DCP’s failure to maintain, repair 18 and restore the Premises in an amount subject to proof at trial but estimated to be in excess of 19 $150,000. 20 36. As the proximate, and foreseeable result of DCP’s breach, Plaintiffs have been 21 damaged in an amount which exceeds the jurisdictional amount of this court, and are entitled to 22 damages against DCP, in the form of lost rent and other related damages in an amount in excess 23 of $150,000, plus interest at the rate of 10% per annum as provided in the Lease. 24 37. The Lease contains an attorney fees clause providing that in any dispute between 25 Plaintiff and DCP in any way related to the Lease, and whether involving contract and/or tort 26 claims, the non-prevailing party shall pay to the prevailing party all reasonable attorney fees and 27 costs, and in accordance with said Lease clause, Plaintiff herein is entitled to an award of 28 reasonable attorney fees and costs in bringing this action against DCP. COMPLAINT FOR BREACH OF 6 LEASE AND DAMAGES 1 WHEREFORE, PLAINTIFFS pray for judgment as hereinafter set forth. 2 THIRD CAUSE OF ACTION (Breach of Lease for Failure to Restore Premises) 3 38. Plaintiffs reallege and incorporate herein by this reference each and every 4 allegation contained in paragraphs 1 through 23 and 31 through 37 of this Complaint as though 5 fully set forth herein. 6 39. Under Section 8(d)(ii) of the Lease, DCP agreed to restore the Premises at 7 expiration or earlier termination of the Lease to its original condition, to remove the alterations 8 and improvements made by DCP, and to repair all damage caused to the Premises by such 9 installation or removal, including, but not limited to, the two above ground pools, the decking 985 MOR AGA R OAD, SUI TE 210, LAFAYETTE, CALI FOR NI A 94549 10 around the pools, the outside logo signs, ventilation fans, and the retail mounts on walls. 11 LLP 40. DCP breached the Lease by failing to restore, remove and repair its alterations and 415-399-2900 FAX 415-399-2930 12 PETERSON MARTIN REYNOLDS improvements, including, but not limited to, the two above ground pools, the decking around the 13 L AW O F F ICE S pools, the outside logo signs, ventilation fans, and the retail mounts on walls, as required by the 14 lease upon expiration or earlier termination of the Lease. 15 41. Plaintiffs have and will sustain damages in the form of costs to remove DCP’s 16 alterations and improvements from the Premises, and to repair and restore the Premises, which 17 Plaintiffs estimate, subject to proof at trial, to be in excess of $30,000. 18 42. As the proximate, and foreseeable result of DCP’s breach, Plaintiffs have been 19 damaged in an amount which exceeds the jurisdictional amount of this court, and are entitled to 20 damages against DCP, in the form of lost rent and other related damages in an amount in excess 21 of $30,000, plus interest at the rate of 10% per annum as provided in the Lease. 22 43. The Lease contains an attorney fees clause providing that in any dispute between 23 Plaintiff and DCP in any way related to the Lease, and whether involving contract and/or tort 24 claims, the non-prevailing party shall pay to the prevailing party all reasonable attorney fees and 25 costs, and in accordance with said Lease clause, Plaintiff herein is entitled to an award of 26 reasonable attorney fees and costs in bringing this action against DCP. 27 WHEREFORE, PLAINTIFFS pray for judgment as hereinafter set forth. 28 COMPLAINT FOR BREACH OF 7 LEASE AND DAMAGES 1 FOURTH CAUSE OF ACTION (Breach of Guaranty) 2 44. Plaintiffs reallege and incorporate herein by this reference each and every 3 allegation contained in paragraphs 1 through 45 of this Complaint as though fully set forth herein. 4 45. As an inducement to Plaintiffs to enter into the Lease, Defendants Liav Leshem, 5 Inbal Leshem, Michal Reznizki and Ori Zaltzman each entered into the Guaranty to personally, 6 jointly and severally guaranty the full and faithful performance of Defendant DCP’s covenants 7 and obligations under the Lease. 8 46. Further, the Defendants Liav Leshem, Inbal Leshem, Michal Reznizki and Ori 9 Zaltzman signed the Guaranty as co-primary obligors on the Lease and not secondary obligors, 985 MOR AGA R OAD, SUI TE 210, LAFAYETTE, CALI FOR NI A 94549 10 such that Plaintiffs may directly seek against them any and all damages or debts caused or accrued 11 LLP by DCP under the Lease as if they were principals on the Lease. 415-399-2900 FAX 415-399-2930 12 PETERSON MARTIN REYNOLDS 47. On or about May 24, 2021, Plaintiffs, through its agent, delivered a notice to repair 13 L AW O F F ICE S to DCP regarding outstanding repair and maintenance items that DCP had failed to correct, 14 notifying DCP that it was required to make the necessary repairs to the damage and defects within 15 30 days of the notice or DCP would be in default of the Lease per Section 30(a)(vii) thereof. 16 48. On or about July 3, 2021, Plaintiffs’ counsel delivered notice to DCP that DCP had 17 failed to pay rent for that month, notifying DCP that it was required to cure the rent deficiency 18 within 10 days of the notice or DCP would be in default of Lease per Section 30(a)(i) thereof. 19 49. DCP neither commenced repairs per the May 24, 2021 notice nor paid any further 20 rent under the Lease per the July 3, 2021 notice, and DCP defaulted on the Lease. 21