Preview
20STCV05585
Electronically FILED by Superior Assigneddlvoalpaqnoges' ta1sStapitys Mosk Careatioa se) Audlithal Officer eeasa.Beaodebr/Clerk of Court, by D. Johnson,Deputy Clerk
1 David M. Cohen, Esq. (SBN: 160535)
david@davidcohen-law.com
2 DAVID M. COHEN, A Professional Law Corporation
5950 Canoga Ave., Suite 605
3 Woodland Hills, California 91367
Telephone: (818) 466-3700
4] Facsimile: (818) 855-5915
5 Attorneys for Plaintiff
CRM Properties, Inc., a California corporation
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF LOS ANGELES
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11 CRM Properties, Inc., a California corporation, ) Case No. 20ST C¥O5585
12 Plaintiff, ) VERIFIED COMPLAINT FOR
) UNLAWFUL DETAINER
13 VS.
[Unlimited Jurisdiction]
14 | Beautycon Media, Inc., a Delaware corporation; )
and DOES 1 through 10, inclusive,
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Defendant.
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18 CRM Properties, Inc., a California corporation (“Plaintiff”) alleges as follows:
19 CAUSE OF ACTION FOR UNLAWFUL DETAINER
20 (Against All Defendants)
21 A The Parties.
22 1 At all times mentioned herein, Plaintiff was and now is a California corporation
23 lawfully doing business in the State of California, County of Los Angeles.
24 2 Plaintiff is informed and believes that, at all times mentioned herein, defendant
25 Beautycon Media, Inc. (collectively with the below described DOE defendants, “Defendants”) is
26 and was a Delaware corporation doing business in the State of California, County of Los Angeles.
27 3 The true names and capacities, whether individual, corporate, associate or otherwise,
28 of Defendants named herein as Does 1 through 10, inclusive, are unknown to Plaintiff, who
Case No.
‘VERIFIED COMPLAINT FOR UNLAWFUL DETAINER
6013.088
therefore sues such Defendants by such fictitious names. Plaintiff alleges, on information and
belief, that defendants Does 1 through 10, inclusive, are in some manner in possession of the
Premises set forth herein and/or responsible and/or liable for the damages and/or action alleged
herein. Plaintiff will amend this Complaint to show and/or add the true names and capacities of
such fictitiously named defendants when the same has been ascertained.
4. Plaintiff alleges on information and belief that at all times mentioned herein, each of
the Defendants was and now is the agent, servant, employee, representative and/or alter ego of each
of the other Defendants, and in doing the things hereinafter mentioned, was acting within the scope
of his/her authority as such agent, servant, employee, representative and/or alter ego, with the
10 permission and consent of the remaining defendants.
11 B. The Lease.
12 5. On or about August 30, 2018, Plaintiff, as Landlord, and Defendants, as Tenant,
13 entered into a written License Agreement (as amended in writing on February 20, 2019, the
14 “Lease”) whereby Defendants leased the premises located at 333 South La Cienega Blvd., Space
15 101, Los Angeles, CA 90048 (the “Premises”). A true and correct copy of the Lease is attached
16 hereto as Exhibit “A” and is incorporated herein by this reference.
17 6. Plaintiff currently is the owner of the Premises and holds all of the right, title and
18 interest of the Landlord under the Lease.
19 7. The Lease provides that the prevailing party in any litigation under the Lease shall
20 be entitled to recover its attorneys’ fees and court costs from the losing party.
21 8. Plaintiff has retained the firm of David M. Cohen, A Professional Law Corporation
22 to protect its rights under the Lease, and has incurred and will continue to incur an unascertained
23 amount of reasonable attorneys’ fees and costs. Plaintiff will seek those amounts at the time of
24 trial.
25 Cc Non-Payment of Rent/Termination of Lease.
26 9. As more fully set forth in the Lease, Defendants are required during the term of the
27 Lease to pay monthly Rent. The amounts due on a monthly basis are herein after referred to as
28 “Rent” and currently total $32,500.00.
Case No.
‘VERIFIED COMPLAINT FOR UNLAWFUL DETAINER
6013.088
10. Notwithstanding the requirements of the Lease, Defendants failed and refused to
make all the payments of rent due under the Lease.
11. On January 27, 2020, Plaintiff duly and lawfully served a Ten (10) Day Notice to
Pay Rent or Surrender Possession (the “Notice”) on Defendants in accordance with the provisions
of the Lease and California Code of Civil Procedure Sections 1161, 1161.1 and 1162 by sending
such Notice to Tenant’s notice address under the Lease via FedEx, accepted on January 28, 2020.
The Notice required Defendants to pay the sum of $130,000.00, the amount of Rent outstanding
under the Lease through January 31, 2020 for the past year, or quit the Premises within ten (10)
days after service of the Notice. The Notice further set forth Plaintiff's election to declare a
10 forfeiture of the Lease. A true and correct copy of the Notice is attached hereto as Exhibit “B” and
11 incorporated herein by this reference.
12 12. More than ten (10) days have elapsed since the service of the Notice and there was
13 no lawful tender of the full amount set forth in the Notice. Defendants are still in possession of the
14 Premises.
15 13. Plaintiff is informed and believes that the daily rental value of the Premises totals
16 $1,068.49 per day.
17 WHEREFORE, Plaintiff prays for judgment against the Defendants as follows:
18 1 For immediate restitution and possession of the Premises;
19 2 For an order that the Lease is forfeited and terminated;
20 3. For an order that Defendants' right to possession of the Premises has been
21 terminated;
22 4 For past due Rent totaling $130,000.00 and damages according to proof but in no
23 case less than $1,068.49 per day for each day Defendants continue in possession of the Premises
24 from February 1, 2020 up to the time of Judgment;
25 5. For attorneys’ fees and costs of suit incurred herein; and
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Case No.
‘VERIFIED COMPLAINT FOR UNLAWFUL DETAINER
6013.088
6. For such other and further relief as the Court deems just and proper.
Dated: February 12, 2020 DAVID M. COHEN, A Professional Law Corporation
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David M. Cohen
Attorneys for Plaintiff
CRM Properties, Inc., a California
corporation
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Case No.
‘VERIFIED COMPLAINT FOR UNLAWFUL DETAINER
6013.088
VERIFICATION
Ihave read the foregoing VERIFIED COMPLAINT FOR UNLAWFUL DETAINER
and know its contents. The matters stated in it are true to the best of my own knowledge except as
to those matters which are stated on information and belief, and as to those matters I believe them
to be true,
(Check applicable paragraph)
Iam a party to this action.
lam the Chief Business Officer of Caruso Management Company, Ltd., managing agent of
CRM Properties, Inc., a California corporation, a party to this action, and am authorized to
make this verification for and on its behalf, and ] make this verification for that reason.
10 lam one of the attorneys for plaintiff, a party to this action. Such party is absent from the
county of aforesaid where such attorneys have their office, and 1 make this verification for
11 and on its behalf, and I make this verification for that reason.
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13 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
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Executed on February 12, 2020, at Los Angeles, California
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Case No.
VERIFIED COMPLAINT FOR UNLAWFUL DETAINER
6013.088
EXHIBITA
DocuSign Envelope ID: 67956445-462E-47CD-B97A-73CEEFE3E1D8
LICENSE AGREEMENT.
BEAUTYCON MEDIA
This License Agreement (this “Agreement”) is made as of August 30, 2018, by and
between Caruso Management Company, Ltd. as agent for CRM Properties, Inc. (“Licensor”), and
BeautyCon Media, Inc. (“Licensee”), with respect to the following facts:
A. Licensor owns and operates the premises located at 333 South La Cienega Boulevard
located in Los Angeles, California, 90048 (the “Premises”.
B. Licensee desires to enter onto the Premises for the purpose of conducting business
from the Licensed Area (as defined below); and
C. Licensor is willing to grant Licensee a temporary license to operate in the Licensed
Area an experiential activation space, subject to the terms and provisions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, Licensor and
Licensee hereby agree as follows:
1 Basic Terms. The following terms shall have the following meanings throughout this
Agreement:
A. PREMISES: 333 South La Cienega Boulevard
Los Angeles, California 90048
B. LICENSOR: Caruso Management Company, Ltd., a California
limited partnership, as agent for CRM Properties,
Inc., a California corporation
101 The Grove Drive
Los Angeles, California 90036
Licensor’s Notice Address: 101 The Grove Dr., Los Angeles, CA, 90036
Management Contact: Bret Nielsen, Senior Vice President, Leasing & Asset
Management
Phone Number: (323) 900-8100
C. LICENSEE:
Licensee Notice Address: Beautycon Media, Inc., a Delaware Corporation
1161 Vine St
Los Angeles, California 90038
Licensee Contact: Tripp Mahan, Executive Vice President, Business
Operations
Phone Number: (323) 807-6272 (O)
D. LICENSEE’S TRADE NAME: Beautycon
DocuSign Envelope ID: 67956445-462E-47CD-B97A-73CEEFE3E1D8
E. LICENSED AREA: Space 101 at the Premises, which space consists of
approximately 20,000 square feet and is designated
on the site plan attached hereto as Exhibit “A” and
incorporated herein by this reference.
F, TERM: The term (“Term”) of this Agreement shall be for the
period commencing on October 15, 2018 (the
“Commencement Date”) and expiring through and
including February 15, 2019 (the “Expiration
Date”) subject to Licensor’s early termination rights
as provided herein, and as the Term may be extended
by mutual written agreement pursuant to Paragraph
3 below.
G. PERMITTED USE: The Licensed Area shall be used solely for the
operation of an experiential activation, a space for
guests to have an immersive experience with beauty
products, including highly photographable exhibits
on display (and which may include, without
limitation, a shop, salon, masterclasses or influencer
programming (i.e. panels or parties)), as well as other
related uses upon Licensor’s approval, not to be
reasonably withheld. It is anticipated that the tickets
to attend the activation will be sold for $35.00 per
person, and there will be up to 1,000 guests per day.
H. BASE LICENSE FEE: Fifty-Five Thousand Dollars ($55,000.00) for each
of months One (1) and 4 (4) (October 15 — November
14 2018 and January 15 — February 15 2019);
Seventy Thousand Dollars ($70,000.00) per month
for months Two (2) and Three (3) (November 15th
through January 14 2018) of the Term; Seventy
Thousand Dollars ($70,000.00) per month for any
extended term. Payment of Fifty-five Thousand
Dollars ($55,000.00) for the first month is due upon
execution of this Agreement. Licensee shall pay
holdover rent in the amount of One hundred Ten
Thousand Dollars ($110,000.00) per month, pro-
rated daily, for any period of time after the Term
during which Licensee continues to occupy the
License Area. During the Term, Licensee also
guarantees a minimum of Forty-five Thousand
Dollars ($45,000.00) in investment in media with the
Licensor on terms no less favorable to Licensee than
offered by Licensor to any other tenants or licensees.
I UTILITY CHARGE: Licensee to pay the cost for all actual, out of pocket,
third party utilities costs per month for Licensee’s
actual usage of the Licensed Area during the Term
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DocuSign Envelope ID: 67956445-462E-47CD-B97A-73CEEFE3E1D8
and Licensor shall promptly provide Licensee true,
complete and correct verification of the same as
Licensee may request. To the extent to which actual
usage of the Licensed Area is not submetered,
Licensee shall pay for the prorata share of the utility
costs for the meter, which shall be determined
reasonably and in good faith by calculating
Licensee’s square foot percentage as a percentage of
the applicable property’s total leasable area.
Notwithstanding anything in this Agreement to the
contrary, Licensor to pay Five Thousand Dollars
($5,000) each month during the Term to cover the
initial Five Thousand Dollars ($5,000) of the cost for
all actual, out of pocket, third party utilities costs for
such month for Licensee’s actual usage of the
Licensed Area during the Term.
J SECURITY DEPOSIT: Sixty-Five Thousand Dollars ($65,000.00) due upon
execution of this Agreement.
K. CODE REQUIREMENTS: All applicable local, state and federal statutes,
regulations, rules, codes and permitting, including
building codes, ordinances and other requirements of
governmental authorities now or hereafter in effect,
applicable to the Premises and laws and regulations
relating to seismic conditions, health, life-safety
systems and the accessibility or usability of the
Premises by disabled persons.
2. Grant of License; Licensed Area. Licensor hereby grants to Licensee and Licensee
hereby accepts from Licensor a license to use the Licensed Area for the Permitted Use during the
Term upon the terms and subject to the conditions set forth in this Agreement subject to Licensor’s
providing that the Premises (including, without limitation, Common Areas) will be free from any
known (or that which with reasonable diligence should be known) defects, dangerous/hazardous
conditions, impairments, or other issues that might inhibit Licensee’s use thereof for its intended
purpose in any manner (the “License”); provided that in the event Licensor fails to so provide the
Premises at any time, Licensee may elect to receive a pro rata License Fee credit for such issues
(as mutually determined by the parties reasonably and in good faith) or to terminate this License
without further obligation to Licensor or to receive a License Fee free extension of the Term for a
reasonable period of time for such time that the Premises were not so provided. All references to
the Licensed Area herein shall be deemed to include, without limitation, any and all common areas
and facilities designated by Licensor from time to time for the nonexclusive use of Licensee in
common with other authorized users, as such areas and facilities are set forth on Exhibit A
(collectively, “Common Area”). Notwithstanding the foregoing or any other provision of this
Agreement to the contrary, it is understood and agreed that the Common Area shall not in any
event be deemed to be a portion of or included with the Licensed Area licensed to Licensee
hereunder. Such Common Area shall be subject to the exclusive management and control of
Licensor. Licensor shall have the right from time to time to designate, relocate and limit the use
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DocuSign Envelope 1D: 67956445-462E-47CD-B97A-73CEEFE3E1D8
of particular areas or portions of the Common Area and to establish, propagate and enforce the
tules and regulations concerning the Common Area. Licensor agrees that the Premises shall at all
times during the Term be fit, usable, and habitable in all respects for Licensee’s intended purpose,
including, without limitation, all Common Areas and areas permitting access to the Premises shall
at all times during the Term be unobstructed such that there will be no material interference (e.g.,
anything preventing or inhibiting foot traffic around/to or access to) with the unfettered access of
Licensee or anyone permitted onto the Premises for or on behalf of Licensee; provided that
Licensor shall not be deemed to be in breach of this sentence where an applicable municipality
(e.g., personnel directly employed by the city, county, etc.) is the sole cause of any such event that
would otherwise be a breach by Licensor.
3. Extension Periods; Required Notice of Termination. At the end of the Term, the
License and this Agreement may be extended for successive one-month periods, each ending on
the last day of the applicable calendar month as provided in this Paragraph 3. Licensee shall notify
Licensor in writing at least thirty (30) days’ prior to the Expiration Date stating whether Licensee
will extend the Term for an additional one-month period pursuant to this Paragraph 3 (an
“Extension Period”) or vacate the Licensed Area on the Expiration Date or the end of the then-
current Extension Period, as applicable. If Licensee shall elect an Extension Period, Licensor shall
have the right to accept or reject such election in Licensor’s sole and absolute discretion by
delivering written notice to Licensee within five (5) business days of receipt of Licensee’s written
notice electing an Extension Period, provided that if Licensor shall fail to accept or reject the
Extension Period in writing within such time, Licensor shall be automatically deemed to have
accepted the Extension Period. Licensor shall also have the right, in its sole and absolute
discretion, to adjust the License Fees due under this Agreement for any Extension Period, provided
that Licensor shall give Licensee written notice of such adjustment at least thirty (30) days prior
to such adjustment taking effect, and Licensee shall have ten (10) days to either accept such
adjustment to the License Fees or to withdraw its election of an Extension Period. If Licensee
should vacate the Licensed Area less than thirty (30) days after delivery of written notice of its
intent to vacate the Licensed Area, then Licensee shall be liable for all License Fees due hereunder
until the earlier of the date that the Licensed Area is actually occupied by a replacement licensee
or lessee (approved by Licensor in its sole discretion) who is paying license fees or rent (as
applicable) or the expiration of the thirty (30) day period following notice of Licensee’s intent to
vacate the Licensed Area.
4. Use/Trade Name. Licensee shall use the Licensed Area only for the Permitted Use
and for no other uses whatsoever. Licensee shall operate its business at the Licensed Area under
Licensee’s Trade Name as set forth in Paragraph 1.D above.
5. License Fees. Licensee shall pay to Licensor the Base License Fee, the Utility Charge
and the other charges otherwise required to be paid under this Agreement (all such amounts
collectively referred to herein as “License Fees”). Licensee shall make payment of all License
Fees at the address set forth in Paragraph 1.B (Attn: Management Office) or as such other address
as Licensor may designate from time to time. All payments of License Fees shall be made without
set-off or counterclaim unless Licensor is in breach of this Agreement. Payments of all License
Fees for partial months shall be prorated accordingly. With respect to any License Fees payable
monthly, Licensee shall pay such License Fees on or before the first day of each month provided
that License Fees for the first month of the Term be paid upon mutual execution of this Agreement.
6. Percentage License Fee. Intentionally deleted.
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DocuSign Envelope |D: 67956445-462E-47CD-B97A-73CEEFE3E1D8
7. Audit. Intentionally deleted.
8. Interest and Late Charge. Licensee acknowledges that late payment by Licensee to
Licensor of License Fees during the Term will cause Licensor to incur costs not contemplated by
this Agreement, the exact amount of such costs being extremely difficult and impracticable to fix.
Such costs include, without limitation, processing and accounting charges. Therefore, if Licensee
shall fail to make any payment of License Fees to Licensor when due during the Term and then
such failure continues for longer than ten (10) days following Licensee’s receipt from Licensor of
written notice of such failure, interest on said late payment shall accrue at the rate of one and one-
half percent (1% %) per month, or the highest rate permitted by applicable law, whichever is less,
from the date said payment was due, and said interest shall become due and payable on the first
day of the month following the month in which said payment was due.
9. Security Deposit. Licensee shall deposit with Licensor a Security Deposit in the
amount set forth in Paragraph 1.K above to secure Licensee’s performance of each and every
covenant and agreement to be performed by Licensee hereunder. Licensor shall have the right, at
its option, to apply reasonably and in good faith all or part of the Security Deposit toward the
payment of the amounts required to remedy any default of Licensee in the payment of License
Fees and/or in the performance of any other covenant or agreement contained herein, provided
however, the existence of the Security Deposit shall not affect the rights of the Licensor in the
event of any such nonpayment or failure to perform, nor shall the same in any way limit Licensee’s
responsibility therefore, and shall not preclude or extinguish any other right or remedy to which
Licensor may be entitled. If Licensor applies all or part of the Security Deposit, Licensee shall,
upon notice from Licensor, pay to Licensor an amount sufficient to restore the Security Deposit to
the original full amount. Upon termination of this Agreement, Licensor shall promptly reimburse
Licensee for the amount of any unused portion of the Security Deposit and in no event shall any
interest be due and owing thereon.
10. Work at Licensed Area. Licensor agrees that it will, at its sole cost and expense,
commence the construction of the Licensed Area and pursue the completion (with the exception
of delays or conditions beyond Licensor’s control) to make the Licensed Area suitable for
Licensee’s operations in accordance with Licensee’s and Licensor’s design and plans (“Licensor’s
Work”), which construction shall include the terms generally described in the Landlord Work
Letter attached hereto as Exhibit “B”. Licensor anticipates delivering possession of the Licensed
Area to Licensee on October 15, 2018 with Licensor’s Work completed.
Any Licensee improvement and other work which is not specified on Exhibit “B” as Licensor’s
Work is referred to herein as “Licensee’s Work” and shall be performed by Licensee, at
Licensee’s own cost. Any equipment, work, fees and permits other than those specifically
enumerated as Licensor’s Work in Exhibit “B” which Licensor elects to install or construct in the
Licensed Area or pay, on Licensee’s behalf, and in each case solely at Licensee’s request, shall be
paid by Licensee. By taking possession of the Licensed Area, Licensee shall be deemed to have
accepted the Licensed Area, to have acknowledged that the Licensed Area is in the condition called
for hereunder, except for punch list items identified in writing by Licensee to Licensor, which
items Licensor agrees Licensor shall have fully remedied within five (5) days following the
Commencement Date, and except for the completion of any such punch list items, Licensee to
have agreed that as of that time, all obligations of Licensor imposed under this License have been
fully performed. Licensor shall make, and hereby is deemed to have made, a non-exclusive
assignment to the joint and several benefit of Licensor and Licensee of any and all warranties set
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DocuSign Envelope ID: 67956445-462E-47CD-B97A-73CEEFE3E1D8
forth in the specifications for Licensor’s Work which relate solely to Licensee’s repair or
maintenance obligations hereunder.
Any work performed by Licensee or Licensor on the Licensed Area shall be performed in a good
and workmanlike manner. Licensee and Licensor shall secure any and all necessary permits,
authorizations and approvals which may be required in connection with their work, and Licensee
shall at all times comply with all government rules and regulations, ordinances, statutes and laws
now or hereinafter in force pertaining to the Premises and Licensee’s use thereof, and shall provide
Licensor with copies of same.
Licensee shall not make any alterations or improvements to the Licensed Area without Licensor’s
advance written consent, to be given or withheld in Licensor’s sole and reasonable good faith
discretion. Between the hours of 7:00pm and 7:00am, Monday through Sunday, Licensee shall
not conduct, or permit to be conducted, any construction activity at the Licensed Area without
Licensor’s prior written approval. Licensee shall pay all taxes based on any property of Licensee,
real or personal, which shall at any time be in the Licensed Areas or any other part of the Premises,
including Licensee’s installations, additions, improvements, fixtures or personal property.
Licensee shall not suffer any mechanic’s lien to be filed against the Licensed Area or any other
part of the Premises, by reason of any work, labor, services, or materials performed at or furnished
to the Licensed Area for Licensee or anyone holding the Licensed Area through or under Licensee;
provided, however, that Licensor shall be responsible for any of the foregoing as a result of
Licensor’s Work. If a mechanic’s lien as a result of Licensor’s Work or Licensor’s alterations or
improvements to the Licensed Area shall be filed, Licensor shall promptly remove it at Licensor’s
sole cost and expense, and Licensor shall indemnify, defend and hold harmless Licensee from any
claims, causes of action, damages or other losses arising out of a mechanic’s lien placed upon the
Licensed Area or the Premises as a result thereof.
11. Utilities. During the Term of this Agreement, Licensee shall either: (i) within thirty
(30) days following receipt of an invoice from Licensor, reimburse Licensor if Licensor has paid
the applicable Utility Charge bill; or (ii) pay directly to the vendor and/or utility company, before
delinquency, at its sole cost, all actual reasonable third party charges for trash removal, alarm
monitoring, water, gas, heat, electricity, telephone service, fiber optics, any and all usage, service,
hook-up, connection, availability and/or standby fees, sewer service and sewer rental, charged or
attributable to the Licensed Area, and all other services or utilities used in connection with the
Licensed Area. At Licensee’s expense, gas and electrical service will be separately metered to the
Licensed Area. Licensor may install, at Licensee’s expense and at Licensee’s request therefor, a
separate meter or submeter for water and/or power serving the Licensed Area. With regard to any
utilities which are not separately metered, Licensor shall allocate the cost thereof in an equitable
good faith, reasonable manner, based on any submeter or, if there is not a submeter, then based on
Licensor’s reasonable good faith judgment of Licensee’s respective utilization, and Licensee will
pay a monthly charge based on such estimate. Nothing contained in this Agreement shall limit
Licensor in any way from granting or using easements on, across, over and under the Premises for
the purpose of providing utility services provided that none of the same materially interfere with
Licensee’s use of the Licensed Area. Notwithstanding anything in this Agreement to the contrary,
Licensor to pay Five Thousand Dollars ($5,000) each month during the Term to cover the initial
Five Thousand Dollars ($5,000) of the cost for all actual, out of pocket, third party utilities costs
for such month for Licensee’s actual usage of the Licensed Area during the Term.
DocuSign Envelope ID: 67956445-462E-47CD-B97A-73CEEFE3E1D8
12. Maintenance of the Licensed Area. Licensor shall, at Licensor’s sole cost and
expense, maintain the Licensed Area and Licensor’s property and equipment, including, but not
limited to, heating, ventilation, and air conditioning (HVAC) equipment, in first class condition
and repair and in compliance with all applicable laws and insurance requirements, and in good,
clean, sanitary and safe order, free of debris. Licensee shall, at Licensee’s sole cost and expense,
maintain Licensee’s property and equipment brought into the Licensed Area in first class condition
and repair and in compliance with all applicable laws and insurance requirements, and in good,
clean, sanitary and safe order, free of debris, reasonable wear and tear excepted. All repairs and
replacements to any property or equipment shall be of a quality equal to new or like-new. If
Licensor refuses or neglects to maintain and/or make repairs to the Licensed Area, or any part
thereof, in a manner reasonably satisfactory to Licensee, Licensee shall have the right, but not the
obligation, on giving Licensor reasonable advance written notice of its election to do so (but not
less than three (3) business days’ notice), to make such repairs or replacement, or perform such
maintenance on behalf of and for the account of Licensor. Licensor shall within thirty (30) days
after written request, reimburse Licensee for such costs incurred by Licensee.
13. Licensor’s Obligations. Except for repairs specifically required to be made by
Licensee pursuant to this Agreement, Licensor covenants and agrees, at its sole cost and expense
and without reimbursement or contribution by Licensee, from and after the Commencement Date
and until the end of the Term, to keep and maintain in good condition and repair, and replace, as
and when necessary, (i) the electric, gas, water, sanitary sewer, and other public utility lines serving
the Licensed Area, to the point of connection to the Licensed Area and all utilities located within
or below the floor slab of the Licensed Area; (ii) all electric, gas, water, sanitary sewer, and other
public utility lines and ducts in or passing through the Licensed Area which do not exclusively
serve the Licensed Area; (iii) the structural elements of the Licensed Area, which shall be deemed
to include, without limitation, the roof joists, columns, footings, foundation, exterior walls
(including repainting, but excluding plate glass, storefront windows, doors, door closure devices,
window and door frames, molding, locks and hardware, and painting or other treatment of interior
walls), floor (excluding floor coverings, unless the same is damaged as a result of a floor defect or
settling), and the structural elements of any building of which the Licensed Area may be a part;
(iv) the roof, gutters, flashings, downspouts and scuppers; and (v) the existing and/or replacement
cooling tower serving the HVAC units in the Licensed Area as well as the heating, ventilation, and
air conditioning (HVAC) equipment in, on and/or servicing the Licensed Area. Additionally,
Licensor shall be responsible for any repairs to the Licensed Area of any nature whatsoever if
occasioned by any act or omission of Licensor, its agents, contractors, licensees, guests, customers,
patrons, or employees, or any government mandated alteration required as a result of Licensee’s
use (and not included in Licensor’s Work) post Commencement Date. Licensor shall, at
Licensor’s sole cost and expense, maintain the Licensed Area, and Licensor’s property and
equipment, in first class condition and repair and in compliance with all applicable laws and
insurance requirements, and in good, clean, sanitary and safe order, free of debris. If Licensor
refuses or neglects to maintain and/or make repairs to the Licensed Area which are Licensor’s
obligation, or any part thereof, in a manner reasonably satisfactory to Licensee, Licensee shall
have the right, but not the obligation, on giving Licensor reasonable advance written notice of its
election to do so (but not less than three (3) business days’ notice), to make such repairs or perform
such maintenance on behalf of and for the account of Licensor. Licensor shall within thirty (30)
days after written request, reimburse Licensee for such costs incurred by Licensee. Licensee shall,
at Licensee’s sole cost and expense (other than the items referred to above in this Section, which
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DocuSign Envelope ID: 67956445-462E-47CD-B97A-73CEEFE3E1D8
shall be Licensor’s responsibility and cost), maintain the Licensed Area, and Licensee’s property
and equipment, in first class condition and repair and in compliance with all applicable laws and
insurance requirements, and in good, clean, sanitary and safe order, free of debris, reasonable wear
and tear excepted. If Licensee refuses or neglects to maintain and/or make repairs to the Licensed
Area which are Licensee’s obligation, or any part thereof, in a manner reasonably satisfactory to
Licensor, Licensor shall have the right, but not the obligation, on giving Licensee reasonable
advance written notice of its election to do so (but not less than three (3) business days’ notice), to
make such repairs or perform such maintenance on behalf of and for the account of Licensee.
Licensee shall within thirty (30) days after written request, reimburse Licensor for such costs
incurred by Licensor.
14. Parking. Subject to the taking of vehicle parking spaces by condemnation or other
events beyond the control of Licensor, Licensor shall maintain not less than that number of vehicle
parking spaces which are prescribed by Code Requirements. Licensee has personally inspected
the Premises, or plans therefor, and has satisfied itself that parking is adequate for Licensee’s
purposes. Licensor shall have the right, but not the obligation, to: (i) designate from time to time
which part(s) of the Premises shall be used for vehicle parking by Licensee and Licensee's
customers, sublessees, concessionaires, and invitees; (ii) require that Licensee and Licensee’s
employees park their vehicles in designated parking areas, including Easement Areas;
(iii) establish restricted and exclusive parking zones; (iv) institute fee and/or validated parking
controls with variable fees; and (v) designate a location where Lyft, Uber and/or any other car
service may drop off and pick up passengers. Notwithstanding anything in this Agreement to the
contrary, Licensor shall provide and designate five (5) parking spaces, in locations to be mutually
approved by Licensor and Licensee, for the exclusive use of Licensee during the Term.
15. Employee Parking. Licensee and its employees shall park their vehicles only in areas
as are from time to time reasonably designated for that purpose by Licensor, and Licensor may
change such designated areas at any time upon written notice to Licensee. Licensee and Licensee’s
employee parking shall be located on the 3" floor of the parking garage, just below Eli’s. Licensee
and Licensee’s employees shall not park on surrounding residential streets. Licensor shall make
available for purchase twenty-five (25) monthly employee parking spaces to Licensee during the
duration of the Term at the rate of $100.00 per month. Licensee shall furnish Licensor with a list
of its and its employees’ vehicle license numbers within fifteen (15) days after taking possession
of the Licensed Area and Licensee shall thereafter notify Licensor of any change in such list within
five (5) days after such change occurs. Licensee and its employees shall use any vehicle entry
system employed at the Premises (such as a card key, the reasonable cost of such keys being paid
for by Licensee) and attach to their vehicles any identification stickers required by Licensor. In
the event that any of Licensee’s employees do not abide by the vehicle entry system established
by Licensor for the vehicle parking areas, Licensor shall be entitled to charge such employees the
then prevailing maximum daily vehicle parking fee. Licensee acknowledges that Licensor may
tow away, at the vehicle owner’s expense, from the Premises vehicles belonging to Licensee or
Licensee’s employees parked in violation of these provisions, and/or to attach violation stickers or
notices to such vehicles. Licensee agrees to assume responsibility for compliance by its employees
with, and payment by such employees of all charges arising under the parking provisions contained
herein. Notwithstanding anything in this Agreement to the contrary, Licensor shall provide and
designate five (5) parking spaces, in locations to be mutually approved by Licensor and Licensee,
for the exclusive use of Licensee during the Term.
DocuSign Envelope ID: 67956445-462E-47CD-B97A-73CEEFE3E1D8
16. Validation System. Licensor shall establish a parking validation system providing
free parking with validation for the first onc (1) hour, four dollars ($4.00) for the second (2") hour,
five dollars ($5.00) for the third (3) hour, and one dollar ($1.00) for cach fifteen (15) minutes
thereafter, for a maximum daily charge of twenty-four dollars ($24.00) for customers of Licensee.
Inno event shall Licensee or Licensee's customers be charged for the cost of validation stamps of
Licensee's customers.
17. Deliveries and ABC Licensed Events.
17.1 Licensee shall: (i) cause the loading or unloading of trucks or similar
delivery vehicles in the Premises to be done only in the loading and service areas which shall be
reasonably designated by Licensor and, to the extent feasible, such deliveries shall be made during
off-peak traffic periods; (ii) not obstruct the sidewalks, adjoining street or Common Areas of the
Premises; and (iii) perform or cause to be performed the loading and unloading of trucks, delivery
and service vehicles in conformance with all Code Requirements, and only during such hours and
days and in accordance with procedures that are reasonably established by Licensor from time to
time and communicated to License. Licensor shall not (and shall not permit any other person
or party it invites on, permits or grants
Related Content
in Los Angeles County
Ruling
YOUNG CHOW DAI VS PAUL P. CHENG & ASSOCIATES, ET AL.
Jul 30, 2024 |
Echo Dawn Ryan |
18STCV10177
Case Number:
18STCV10177
Hearing Date:
July 30, 2024
Dept:
26
Dai v. Paul P. Cheng & Associates, et al.
MOTION FOR LEAVE
TENTATIVE RULING:
Plaintiff Young Chow Dais Motion for Leave is DENIED.
ANALYSIS:
On December 31, 2018, Plaintiff Young Chow Dai (Plaintiff) filed the instant action against Defendants Paul P. Cheng & Associates and Marsha S. Mao. Plaintiff filed the operative Second Amended Complaint (SAC) on October 4, 2019 against Defendants Paul P. Cheng (Defendant Cheng), Marsha S. Mao (Defendant Mao), and Law Offices of Paul P. Cheng & Associates (Defendant Cheng & Associates). The SAC, which arises from alleged wrongful actions in connection with a settlement agreement, alleges causes of action for: (1) accounting; and (2) fraud.
On February 7, 2023, Defendant Cheng filed a motion for summary judgment (MSJ). On March 1, 2023, Defendant Cheng filed a motion to deem the truth of the matters in Defendants Requests for Admission, Set One, served on Plaintiff, admitted and for monetary sanctions. On April 12, 2023, Plaintiff filed a motion to transfer venue to the Santa Monica Courthouse.
On July 24, 2023, after hearing and oral argument, the Court: (1) granted the MSJ filed by Defendant Cheng; (2) granted Defendant Chengs motion to deem the truth of the matters in Defendants Requests for Admission, Set One, as admitted and awarded Defendant monetary sanctions; and (3) denied Plaintiffs motion to transfer and change venue. (Minute Order, 07/24/23.) On August 4, 2023, Defendant Cheng filed and served Notice of Entry of Judgment or Order as to the Courts July 24, 2023 order.
On August 7, 2023, Plaintiff filed a
Motion to Vacate Judgment and Enter a New and Different Judgment
. On August 8, 2023, the Court entered judgment in favor of Defendant Cheng and against Plaintiff. The Courts order for entry of summary judgment provides that Plaintiffs case against Defendant Paul P. Cheng is therefore dismissed with prejudice. (Minute Order, 08/08/23, p. 3:1-4.) Plaintiff filed an Amended Motion to Vacate Judgment and Enter a New and Different Judgment on August 11, 2023. Plaintiff filed similar motions to vacate on August 25, 2023 and September 29, 2023.
In a ruling considering all three Motions to Vacate, the Court denied the request to vacate the judgment on January 17, 2024. (Minute Order, 01/17/24.) Plaintiff then filed a Motion for Reconsideration on January 23, 2024. The Motion for Reconsideration was denied on March 26, 2024. (Minute Order, 03/26/24.) On April 16, 2024, the Court granted Defendants Motion to Deem Plaintiff a Vexatious Litigant. (Minute Order, 04/16/24.) Plaintiff sought to challenge that ruling via a motion in Department 1, which was denied on June 27, 2024. (Minute Order, 06/27/24.)
The instant Motion for Leave was filed by Plaintiff on May 2, 2024. The Motion was originally set for hearing on July 3, 2024 and then continued to July 30, 2024. Defendant filed an opposition on July 24, 2024.
The instant Motion does not explain what relief is sought or on what basis.
The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced. (Cal. Rules of Court, Rule 3.1113(b).) Indeed, Plaintiffs failure to provide a memorandum as required by the Rule is an admission that the [request] is without merit and cause for its denial. (Cal. Rules of Court, Rule 3.1113(a), (b);
In re Marriage of Falcone & Fyke
(2012) 203 Cal.App.4th 964, 976.) As the Court cannot discern what relief Plaintiff seeks or the legal basis for any relief, the Motion for Leave is denied.
Conclusion
Plaintiff Young Chow Dais Motion for Leave is DENIED.
Court clerk to give notice.
Ruling
THE MANIJEH SHAMS TRUST, ET AL. VS FARIBA JAVAHERPOUR
Jul 26, 2024 |
22BBCV00226
Case Number:
22BBCV00226
Hearing Date:
July 26, 2024
Dept:
A LOS ANGELES SUPERIOR COURT
NORTH CENTRAL DISTRICT - BURBANK
DEPARTMENT A
TENTATIVE RULING
JANUARY 25, 2024
MOTION TO ENFORCE SETTLEMENT AGREEMENT
Los Angeles Superior Court Case # 22BBCV00226
MP:
THE MANIJUE SHAMS TRUST AND MANIJEH SHAMS (Plaintiff)
RP:
FARIBA JAVAHEROUR, ET AL (Defendant)
All parties are requested to appear either in person or via LA Court Connect to address the tentative ruling.
Brief Summary of Requested Relief
The Court has read and considered Plaintiffs Motion to Enforce Settlement, Defendants opposition, as well as Defendants Further Opposition to the Motion.
The parties entered into a settlement as set forth in Plaintiffs moving papers, which included a CCP §664.6 provision.
Defendant has declined to sign the written settlement agreement until Plaintiff amends her trust to reflect that the settlement of $60,000 will inure to the benefit of the Plaintiffs grandchildren, specifically the children of Plaintiffs deceased son, Massoud Bahmanyar.
The parties appear to be at an impasse.
Ruling on Motion to Enforce Settlement
Pursuant to CCP §664.6, a Court has continuing jurisdiction to enforce a settlement agreement.
As such, the Court exercises its authority under CCP §664.6 and orders the following be completed within the next 30 days:
1.
Plaintiff Manijeh Shams is to create a new irrevocable trust: The Manijeh Shams Irrevocable Grandchild Trust in which she is the primary beneficiary, and the children of Massoud Bahmanyar are the contingent beneficiaries.
Manijeh Shams shall be the initial trustee, with a successor trustee to be named by Ms. Shams in the trust.
2.
The terms of the trust will include that the $60,000 settlement, as well as any earnings, may be used for the direct support of the settlor, and upon settlors death will inure to the benefit of Massoud Bahmanyars children in equal parts
per stirpes
. In the event that any grandchild predeceases the settlor, that grandchilds share shall inure to the grandchilds children
per stirpes.
In the event that a deceased grandchild has no children, the share shall be divided equally among the remaining living grandchildren.
3.
Defendant Fariba Javaherpour shall deposit the total sum of $60,000 into the newly established trust within ten days of being informed that the new irrevocable trust has been established and a bank account in the name of the new trust is set up.
4.
The Manijeh Shams Irrevocable Grandchild Trust shall be subject to Part 4, Chapter 1 of the California Probate Code, beginning at §16060 et seq., including but not limited, to §§16062 and 16063.
Upon request from any contingent beneficiary, the contingent beneficiaries shall have a right directly, or through their representative if minors, to have an accounting no more than annually.
The accounting may be informal, and the cost of the accounting shall be incurred by the trust.
Any contingent beneficiary has the right to petition the court for a formal accounting if there is a prima facie basis to believe that the informal accounting does not properly reflect the trust distributions and expenses.
5.
The individual trustee shall not be entitled to compensation for administration of the trust, nor shall any bond be required of any individual trustee.
A professional or commercial trustee shall be entitled to compensation as permitted by law.
Manijeh Shams may propose specific language to the Court if necessary, with objections and alternative language being proposed by Defendant Fariba Javaherpour.
The Court sets a Status Conference Re: Settlement Agreement compliance for August 8, 2024 at 10:00 AM.
ORDER
The Plaintiffs Motion to Enforce the Settlement Agreement c
ame on for hearing on July 25, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:
THE MOTION TO ENFORCE THE SETTLEMENT AGREEMENT IS GRANTED.
PLAINTIFF TO CREATE NEW IRREVOCABLE TRUST CONSISTENT WITH THE TERMS OF THE SETTLEMENT AGREEMENT MEMORIALIZED IN THE COURTS PRIOR MINUTE ORDER.
NEW IRREVOCABLE TRUST SHALL CONTAIN THE TERMS SET FORTH IN THIS RULING.
DEFENDANT IS TO FUND THE TRUST WITHIN 10 DAYS OF BEING NOTIFIED OF THE NEW TRUSTS CREATION AND BEING PROVIDED BANKING INFORMATION IN THE NAME OF THE NEW TRUST.
STATUS CONFERENCE RE: SETTLEMENT AGREEMENT COMPLIANCE IS AUGUST 8, 2024 AT 10:00 AM.
UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF TO GIVE NOTICE.
IT IS SO ORDERED.
DATE: July 26, 2024
_______________________________
F.M. TAVELMAN, Judge
Superior Court of California
County of Los Angeles
Ruling
MARIA PADILLA, ET AL. VS JOSEPH HEFFESSE, ET AL.
Jul 29, 2024 |
23STCV15942
Case Number:
23STCV15942
Hearing Date:
July 29, 2024
Dept:
53
Superior Court of California
County of Los Angeles Central District
Department 53
maria padilla
, et al.;
Plaintiffs
,
vs.
joseph heffesse,
as trustee of the Coldwater Canyon Trust
, et al.;
Defendants
.
Case No.:
23STCV15942
Hearing Date:
July 29, 2024
Time:
10:00 a.m.
[tentative] Order
RE:
petition for approval of compromise of claim for minor claimant anthony jayden diaz
MOVING PARTY:
Petitioner Jeanette Oliveros
RESPONDING PARTY:
Unopposed
Petition for Approval of Compromise of Claim for Minor Claimant Anthony Jayden Diaz
The court considered the moving papers filed in connection with this petition.
No opposition papers were filed.
DISCUSSION
Plaintiff and petitioner Jeanette Oliveros (Petitioner) seeks court approval of the settlement made on behalf of minor claimant Anthony Jayden Diaz (Minor Claimant) in this action.
The compromise of a minors disputed claim for damages is valid only after it has been approved, upon the filing of a petition, by the court.¿ (Prob. Code, § 3500.)¿ The petition must be verified by the petitioner, must contain a full disclosure of all information that has any bearing upon the reasonableness of the compromise, and must be prepared on Judicial Council form MC-350.¿ (Cal. Rules of Court, rule 7.950.)¿
Defendants Joseph Heffesse, as trustee of the Coldwater Canyon Trust, Sandra B. Sternberg Heffesse, and LA Properties Heffesse LLC have agreed to pay a total of $175,000 to settle this action, of which $5,000 will be separately allocated to Minor Claimant.
(MC-350, ¶¶ 10-11.)
Of the $5,000 allocated to Minor Claimant, $1,250 will be paid to counsel for attorneys fees and $134.35 will be paid to counsel for legal costs.
(MC-350, ¶¶ 13, 16.)
The remaining $3,615.65 will be paid or delivered to the parent of Minor Claimant, i.e., Petitioner, without bond, on the terms and under the conditions specified in Probate Code sections 3401-3402.
(MC-350, ¶ 18, subd. (b)(5); MC-350, Attachment 18b(5), Oliveros Decl., ¶¶ 1-2, 6; Prob. Code, §§ 3401, 3402.)
The court has reviewed the petition and finds the settlement to be fair and reasonable, and in the best interest of Minor Claimant.
The court further finds that the declaration of Rachel Fishenfeld is sufficient to support the request for attorneys fees in the amount of $1,250 (representing 25 percent of the $5,000 settlement).
(Fishenfeld Decl., ¶¶ 2-3, 6-11; Cal. Rules of Ct., rule 7.955.)
The court therefore grants Petitioners petition.
ORDER
The court grants petitioner Jeanette Oliveross petition for approval of compromise of claim on behalf of minor claimant Anthony Jayden Diaz.
The court orders that the $3,615.65 settlement on behalf of minor claimant Anthony Jayden Diaz may be paid to plaintiff and petitioner Jeanette Oliveros pursuant to Probate Code sections 3401 and 3402.
The court orders petitioner Jeanette Oliveros to give notice of this ruling.
IT IS SO ORDERED.
DATED:
July 29, 2024
_____________________________
Robert B. Broadbelt III
Judge of the Superior Court
Ruling
IRENE YOUNG, ET AL. VS PACIFIC PLAZA ELITE - ALHAMBRA HOMEOWNERS ASSOCIATION, A CALIFORNIA CORPORATION; AND DOES 1-20;
Jul 31, 2024 |
22STCV08879
Case Number:
22STCV08879
Hearing Date:
July 31, 2024
Dept:
20
Tentative Ruling
Judge Kevin C. Brazile
Department 20
Hearing Date:
July 31, 2024
Case Name:
Young, et al. v. Pacific Plaza Elite-Alhambra Homeowners Association, et
al.
Case No.:
22STCV08879
Matter:
Motions to Compel Further Responses (4x)
Moving Party:
Plaintiffs Irene Young and Jesse Chang
Responding Party:
Defendant Pacific Plaza Elite-Alhambra Homeowners Association
Notice:
OK
Ruling:
The Motion as to Requests for Production is granted in part.
The Motions as to Form Interrogatories and Request for Admission
are granted.
Moving parties to give notice.
If counsel do not submit on the tentative, they are strongly
encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Plaintiffs Irene Young and Jesse Chang seek to compel further responses from Defendant Pacific Plaza Elite-Alhambra Homeowners Association as to their requests for production, set two, form interrogatories, set two, request for admission no. 15.
Request for Admission
Request for Admission no. 15 states, Admit that YOU have not repaired the defects that were the subject of the CONSTRUCTION DEFECT DISPUTE.
Previously, Defendant responded: After a reasonable inquiry concerning the matter contained in this request, admit in part and deny in part. The Court compelled a further response because there was no specificity as to what was admitted and denied.
Defendant then served the following amended response that is the subject of the current Motion: After a reasonable inquiry concerning the matter contained in this request, to the best of Responding Partys knowledge, the Developer has completed the repairs to Plaintiffs property and therefore responds: Deny.
Plaintiffs argue that this is evasive because the request did not relate to the Developer, who is never identified in the response anyway. They also contend that it is unclear whether the phrase Plaintiffs property relates to Plaintiffs unit or the entire condominium building that was the subject of the CONSTRUCTION DEFECT DISPUTE.
The Motion to Compel is granted. A further response should be provided in 10 days that (a) admits that Defendant itself did not do the repairs at issue, but (b) denies that the repairs were never done, because the developer, Pacific Plaza Investments, LLC, addressed them. This would seem to better embody a response that complies with CCP § 2033.220. The Court declines to award sanctions.
Form Interrogatories (2x)
The next Motions pertain to form interrogatory no. 17.1 as it relates to requests for admission nos. 7 and 15.
Given that the Court has required a further response for RFA no. 15, a further accompanying response should also be provided for FI no. 17.1.
With respect to request no. 7, the response for form interrogatory no. 17.1 is deficient. No facts or documents are specifically identified and no contact information is provided for Partners Community Management.
Thus, the Motions to Compel are grantedfurther responses are required within 30 days. The Court awards reduced sanctions to Plaintiffs in the amount of $750.
Requests for Production
With respect to the requests for production, Defendant contends that supplemental documents were served such that the Motion is moot. Defendant, however, never addresses its actual responses. The Motion is granted as to request nos. 1-7, 9-12, 15-22 because the non-privilege objections lack merit and Defendant should provide updated responses in which documents are identified with Bates numbers. For its privilege log, Defendant should indicate recipients and authors.
With respect to request nos. 8, 13, 14, 24, and 25, Defendant should provide a response that complies with Code Civ. Proc. § 2031.230. The Motion is denied without prejudice as to request no. 23, which seems to target predominantly privileged matters. Further responses are to be provided within 30 days. The Court awards Plaintiffs reduced sanctions in the amount of $750.
Moving parties to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Ruling
FLOSSIE C PARUNGAO VS RONAL B. BIBONIA, AS AN INDIVIDUAL AND AS CO-TRUSTEE OF THE THE RONALD B. BIBONIA AND WILFRED T. CO REVOCABLE TRUST DATED NOV
Jul 30, 2024 |
23PSCV02165
Case Number:
23PSCV02165
Hearing Date:
July 30, 2024
Dept:
K
Defendant Ronald B. Bibonias Demurrer to Complaint is SUSTAINED without leave to amend. Defendant Bibonia is ordered to file an Answer within 10 days.
Wilfred T. Cos Demurrer to Complaint is SUSTAINED in part (i.e., as to the first through fourth, sixth and seventh, and ninth causes of action). The court will inquire of the parties whether leave to amend should be granted.
Background
Plaintiff Flossie C. Parungao (Plaintiff) alleges as follows: Plaintiff and Wilfred T. Co aka Winnifredo T. Co (Co) are siblings. In June 2004, Plaintiff located and negotiated the purchase of the property located at 302 S. Loraine Ave., Glendora, California 91741 (Property) to serve as her residence. Co offered to assist Plaintiff with the purchase of the subject property. Plaintiff and Co agreed that (1) Co would co-sign the purchase financing documents and take record title to the subject property, (2) Plaintiff would provide all of the funds needed for the down payment and closing costs, (3) Plaintiff would thereafter directly pay or provide funds for payment of the loan, property taxes, insurance and other subject property related-expenses, and that (4) upon request from Plaintiff, Co would execute such documents and take such other actions as might be needed to evidence he had no interest in the subject property other than the bare record title he would be relinquishing (Contract). Plaintiff did all things required of her under the Contract.
In 2023, Plaintiff asked Co to sign over record title to her; Co refused. Plaintiffs ensuing investigation revealed that Co transferred the subject property into the Ronald B. Bibonia and Wilfred T. Co Revocable Trust dated November 24, 2020 (Trust).
On July 18, 2023, Plaintiff filed a complaint, asserting causes of action against Co, individually and as Co-Trustee of the Trust, Ronald Bibonia (Bibonia), individually and as Co-Trustee of the Trust (collectively Defendants), and Does 1-50 for:
1.
Specific Performance of Oral Contract
2.
Breach of Oral Contract
3.
Fraud [Promise Without Intent to Perform]
4.
Intentional Misrepresentation
5.
Breach of Fiduciary Duty
6.
Conversion
7.
Violation of Penal Code § 496
8.
Quiet Title
9.
Accounting
10.
Imposition of Constructive Trust
On April 26, 2024, the court sustained with leave to amend the demurrer as to the first through fourth, and sixth and seventh causes of action. It also overruled the demurrer as to fifth and eighth causes of action. On May 16, 2024, the Plaintiff filed a First Amended Complaint against Co, individually and as Co-Trustee of the Trust, Bibonia, individually and as Co-Trustee of the Trust (collectively Defendants), and Does 1-50 for:
1.
Specific Performance of Oral Contract
2.
Breach of Oral Contract
3.
Fraud [Promise Without Intent to Perform]
4.
Intentional Misrepresentation
5.
Breach of Fiduciary Duty
6.
Conversion
7.
Violation of Penal Code § 496
8.
Quiet Title
9.
Accounting
10.
Imposition of Constructive Trust
A Case Management Conference is set for July 30, 2024.
Legal Standard
A demurrer may be made on the grounds that the pleading,
inter alia
, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (
Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (
SKF Farms v. Superior Court
(1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (
Semole v. Sansoucie
(1972) 28 Cal. App. 3d 714, 721.) [A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge. (
S. Shore Land Co. v. Petersen
(1964) 226 Cal.App.2d 725, 732 [citations omitted].)
Discussion
Defendants demur, pursuant to Code of Civil Procedure § 430.10, subdivisions (e) and (f), to the first through ninth causes of action in Plaintiffs complaint, on the basis that they each fail to state facts sufficient to constitute causes of action and are uncertain.
[1]
Request for Judicial Notice
The court rules on Defendants Request for Judicial Notice (RJN) as follows: Granted as to Exhibit A (i.e., deed of trust recorded April 11, 2007).
Merits
As to Bibonia
Bibonia contends that the demurrer should be summarily sustained as it pertains to him, on the basis that the FAC is again completely devoid of factual allegations against him. (Dem., 18:9). A review of the FAC demonstrates that Bibonia was not contractually bound based on the alleged oral contract but merely listed on the Propertys title. Plaintiffs contention that Bibonia is a beneficiary to the property is insufficient to allege his involvement in the alleged oral agreement. Nevertheless, Bibonias name on the Propertys title is sufficient to include him on the eighth cause of action for quiet title. As a result, Bibonias demurrer is sustained on this basis as to causes of action one through seven, and nine without leave to amend.
As to Co
First and Second Causes of Action (i.e., Specific Performance of Oral Contract and Breach of Oral Contract, Respectively)
[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendants breach, and (4) the resulting damages to the plaintiff. (
Oasis West Realty, LLC v. Goldman
(2011) 51 Cal.4th 811, 821.) Plaintiff has alleged that in June 2004, she located and negotiated the purchase of the Property to serve as her residence and that [a]t the time, . . . [her brother] Co offered to assist [her] with the purchase of the Property (FAC, ¶¶ 7 and 8); that she and Co agreed that (1) Co would assist [her] by co-signing the purchase financing documents and taking record title to the Property, (2) [she] would provide all of the funds needed for the down payment and closing costs, (3) [she] would thereafter directly pay or provide funds for the payment of the loan, property taxes, insurance and other Property related expenses, and (4) upon request from [her, Co would execute such documents and take such other actions as might be needed to evidence he had no interest in the Property other than the bare record title he would be relinquishing (Contract) (
Id.
). Co first argues that the alleged oral contract is barred by the Statute of Frauds. (See Civil Code § 1624, subd. (a)(3) [The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the parts agent: . . . (3) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein . . .]
On April 26, 2024, the court overruled the demurrer on statute of frauds grounds.
As a result, the court will not consider the Statute of Frauds argument. Co next argues that the alleged oral contract fails for lack of consideration. (See Civ. Code § 1550 [It is essential to the existence of a contract that there should be: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration].) Plaintiffs only response is that making substantial payments over an extended period of time constitutes consideration. (See Opposition at 14.) Plaintiff relies on
Flojo International, Inc. v. Lassleben
(1992) 4 Cal.App.4th 713, 719, in support of her contention. However,
Flojo
does not support her contention. In
Flojo
, a former distributor of products for a company obtained ownership of the company, extinguished the debts the company owned to the distributor, and provided the former owner royalty rights for future sale of goods. (
Id
. at 719-20.) The court reversed an order granting summary judgment and held that consideration to the companys prior owner in extinguishing debt was sufficient reason or consideration to bind the company. (
Id
. at 720.) Here, Plaintiff again fails to articulate the consideration that Co received. Her contention that other family members benefited by making the Property available as a residence for a sibling demonstrates a sibling promissory estoppel cause of action more so than an oral agreement. Moreover, it appears this alleged consideration was not alleged as part of the original oral agreement. The demurrer is sustained.
Third and Fourth Causes of Action (i.e., Fraud [Promise Without Intent to Perform and
Intentional Misrepresentation, Respectively)
The essential allegations of an action for fraud are a misrepresentation, knowledge of its falsity, intent to defraud, justifiable reliance, and resulting damage. (
Roberts v. Ball, Hunt, Hart, Brown & Baerwitz
(1976) 57 Cal.App.3d 104, 109.)
Promissory fraud is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. (
Lazar v. Superior Court
(1996) 12 Cal.4th 631, 638.) Co asserts that there is no actionable misrepresentation because, [Plaintiff] herself failed to perform her own obligations under the alleged agreement, including (1) failure to co-sign for the loan and (2) failure to pay off the mortgage as agreed. (Dem., 13:15-17). Plaintiff alleges that Co promised beginning in 2004 that he would execute documents and take such [] actions as might be needed to evidence he had no interest in the Property other than the bare record title he would be relinquishing (Promise). (FAC ¶ 23.) However, there is no specificity as to the specific false statements made by Co. (
Tarmann v. State Farm Mut. Auto. Ins. Co.
(1991) 2 Cal.App.4th 153, 157.) In fact, it is unclear what actionable statements are alleged in the FAC except for that found in paragraph 30 in the FAC (I will do that.). (
People ex rel. Allstate Ins. Co. v. Discovery Radiology Physicians, P.C.
(2023) 94 Cal.App.5th 521, 549.) Because the consideration (i.e. as to Co) under the alleged oral agreement is ambiguous, the statement in paragraph 30 does not provide the necessary sufficiency to support a claim because the extent of the agreement has not been fully described. Cos demurrer to the third and fourth causes of action is sustained.
Sixth Cause of Action (i.e., Conversion)
The elements of a conversion claim are: (1) the plaintiffs ownership or right to possession of the property; (2) the defendants conversion by a wrongful act or disposition of property rights; and (3) damages. (
Los Angeles Federal Credit Union v. Madatyan
(2012) 209 Cal.App.4th 1383, 1387
[quotations and citation omitted].) Further, [t]he tort of conversion applies to personal property, not real property. (
Salma v. Capon
(2008) 161 Cal.App.4th 1275, 1295.)
Plaintiff has alleged that Defendant Co has repudiated his agreement to replace himself with Plaintiff as record title holder of the Property, denied Plaintiffs interest as owner of the Property. In doing so, Defendants have effectively converted and taken for their own use and benefit all of the monies expended by Plaintiff in connection acquisition [sic] and ownership of the Property. (FAC, ¶ 43).
[2]
Co asserts that Plaintiffs cause of action fails because the Property cannot be the subject of a claim for conversion. Plaintiff, in turn, argues that [w]hat was taken was not real property, but instead a specific corpus of personal propertymoney. . . (Opp., 12:14-15). Plaintiff, however, has not alleged that the monies expended by Plaintiff to live in the property ever went to Co, as opposed to the lender. Cos demurrer to this cause of action is sustained.
Seventh Cause of Action (i.e., Violation of Penal Code § 496)
Penal Code § 496, subdivision (a) provides, in relevant part, that [e]very person who
buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170.
While Co does not provide any authority for his position that Penal Code § 496 does not apply to real property, Plaintiffs allegation portend to allow a lower threshold or burden to obtain more than compensatory damages. As stated before, without greater foundation and briefing, the court will not allow this cause of action to proceed at this time. Cos demurrer to this cause of action is sustained.
Ninth Cause of Action (i.e., Accounting)
A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting. (
Teselle v. McLoughlin
(2009) 173 Cal.App.4th 156, 179.) Plaintiff has alleged that she is entitled to an accounting of all loans and other transactions secured by or relating in any way to the Property from 2004 to the present, an accounting of any charges or liens against the Property resulting from the conduct and activities of Defendant, as well as an accounting of all property and other assets obtained or derived by Defendants with funds borrowed against or otherwise obtained with respect to the Property. (FAC, ¶ 55). As the court held before, Plaintiff has not alleged that Co ever received any monies for the Property from Plaintiff or anyone else in connection with the Property at any time. Further, Plaintiff has not alleged that Co encumbered the Property at any time. Cos demurrer to this cause of action is sustained.
[1]
The court previously overruled the demurrer as to the fifth and eighth causes of action. (See Order, April 26, 2024.) As a result, the court will consider only the demurrer as to the first through fourth, sixth and seventh, and ninth causes of action.
[2]
It appears Plaintiff failed to edit the FAC as the same grammatical mistakes are repeated in both versions.
Ruling
MAIN CO., LLC VS JANNA SIMON LEWIS
Jul 29, 2024 |
24STCV08420
Case Number:
24STCV08420
Hearing Date:
July 29, 2024
Dept:
47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE:
July 29, 2024
TRIAL DATE:
None Set
CASE:
Main Co. LLC v. Janna Simon Lewis
CASE NO.:
24STCV08420
MOTION FOR RECONSIDERATION
MOVING PARTY
: Plaintiff Main Co., LLC
RESPONDING PARTY(S)
: Defendant Janna Simon Lewis
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an unlawful detainer action for nonpayment of rent that was filed on April 3, 2024.
Plaintiff moves for
reconsideration of the Courts June 11, 2024 order granting Defendant Janna Simon Lewiss motion for summary judgment.
TENTATIVE RULING:
Plaintiffs Motion for Reconsideration is DENIED.
DISCUSSION:
Plaintiff moves for reconsideration of the Courts June 11, 2024 order granting Defendant Janna Simon Lewiss motion for summary judgment.
Legal Standard
Code of Civil Procedure section 1008 provides, in relevant part:
a)
When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and
based upon new or different facts
,
circumstances, or law
, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application
shall state by
affidavit
what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown
.
* * *
(c) If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.
(d)
A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7. In addition, an order made contrary to this section may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending.
(e)
This section specifies the courts jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.
(Code Civ. Proc. § 1008(a), (c)-(e) (bold emphasis added).)
Timeliness
A motion for reconsideration must be made within 10 days after service upon the moving party of written notice of entry of the order. (Code Civ. Proc. § 1008(a).) Here, the Court Clerk served notice of the Courts June 11, 2024 ruling granting the Motion for Summary Judgment on June 11, 2024. (April 29, 2024 Notice of Ruling.) This motion followed on June 20, 2024, less than ten days later. (See Proof of Service.) The Court therefore finds that this motion is timely made.
Analysis
Plaintiff seeks reconsideration of the Courts June 11, 2024 order granting Defendant Janna Simon Lewiss motion for summary judgment based on what Plaintiff characterizes as evidence and/or facts and law which were not available or considered at the time of the hearing. The evidence offered consists of a Los Angeles Certificate of Occupancy showing a change in use of the premises to an artist in residence unit on November 29, 1993 and two Document Reports with the same date referring to the same CHG OF USE apparently concerning the same unit. (Declaration of Yousef Monadjemi, ¶¶ 3-5, Exh. D-F.) The motion for reconsideration must be rejected for several reasons.
First, Plaintiff has offered no explanation, much less any evidence, showing why the evidence belatedly presented was not submitted for the Courts consideration in connection with its ruling on Defendants motion for summary judgment. A party moving for reconsideration must show something more than that the new evidence was not previously presented. Instead, reconsideration may only be granted where there is proof that the moving party could not, with reasonable diligence, have discovered or produced the evidence in opposition to the original motion. (
New York Times Co. v. Superior Court
(2005) 135 Cal.App.4th 206, 212-213.) Here, Plaintiff has failed to demonstrate any valid reason for not presenting the new evidence in opposition to Defendants original motion. (
Gilberd v. AC Transit
(1995) 32 Cal.App.4th 1494, 1500.) As the documents presented are all dated November 29, 1993, the Courts assumption is that they were available to Plaintiff during the pendency of the summary judgment motion, if Plaintiff had sought to secure them for submission to the Court.
Second, the documents recently submitted to the Court are not relevant to the unlawful detainer action before the Court. Plaintiffs complaint alleges: The building in which the premises is located is under L.A.M.C. 150.000 et seq. (1979) as amended, but that defendants unit is exempt from LARSO, because it is an Artist-in-Residence unit. (Complaint, p. 3 & Attachment 17.) As is proper for any motion for summary judgment, Defendants motion was predicated on these allegations of the Complaint and necessarily limited by those allegations. (
Juge v. County of Sacramento
(1993) 12 Cal.App.4th 59, 67 [The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues].) Defendants summary judgment motion did not contest the exemption now being advanced by Plaintiff, and given the narrow scope of the Complaint, such an exemption could not have been challenged in such a motion. As a result, the motion Plaintiff asserts is not one that calls for reconsideration of the prior motion but rather for a ruling on a separate question that falls outside the scope of this lawsuit.
Finally, the recently submitted evidence does not support the conclusion Plaintiff urges. The exemption relied on excludes housing accommodations from regulation under LARSO if the units are located in a structure for which the first Certificate of Occupancy was issued after October 1, 1978 (L.A.M.C. § 151.02, Rental Units, exemption 6), but the records offered say nothing about when the first Certificate of Occupancy was issued for the structure. The records suggest, however, that there may have been such a certificate previously issued because the documents recognize the building as an existing structure that was used as a Retail/Sro Hotel/Dance Hall building. (Exh. D-F.) Even if considered, therefore, Plaintiffs new evidence does not raise a triable issue of fact that would preclude entry of summary judgment in Defendants favor.
CONCLUSION
:
For the reasons explained above,
Plaintiffs Motion for Reconsideration is DENIED.
Moving Party to give notice.
IT IS SO ORDERED.
Dated: July 29, 2024 ___________________________________
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at
Smcdept47@lacourt.org
by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
Ruling
HAMID REZA MIRSHOJAE, ET AL. VS 5975-5999 TOPANGA CANYON BLVD LLC, ET AL.
Jul 26, 2024 |
21STCV37556
Case Number:
21STCV37556
Hearing Date:
July 26, 2024
Dept:
F43 Dept. F43
Date: 7-26-24
Case #21STCV37556,
Hamid Reza Mirshojae, et al. vs. 5975-5999 Topanga Canyon Blvd LLC, et al.
Trial Date: N/A
MOTION FOR ATTORNEY FEES
MOVING PARTY: Plaintiffs Hamid Reza Mirshojae and Woodland Hills Medical Clinic II, Inc.
RESPONDING PARTY: Defendants 5975-5999 Topanga Canyon Blvd, LLC and Ahang Mirshojae
RELIEF REQUESTED
Plaintiffs are requesting attorney fees in the amount of $
619,675
, plus $17,036.01 in costs, from Defendants.
RULING
: Motion for attorney fees is granted at a reduced amount. No costs will be awarded at this time.
SUMMARY OF ACTION
Plaintiff Hamid Reza Mirshojae (Hamid) and Defendant Ahang Zarin Mirshojae (Ahang) were formerly married and were engaged in extensive litigation against each other prior to 2017. The assets in dispute were in excess of $20 million. At mediation, Hamid and Ahang entered a complex settlement agreement. Immediately after, Hamid alleges that Ahang breached the settlement agreement, and he was forced to incur attorney fees to enforce various terms of the agreement. Eventually, Hamid filed the current suit to enforce the settlement agreement on October 12, 2021.
Ahang accused Hamid and his counsel of inducing her to sign the settlement agreement and sued him for $7 million in damages. This Court eventually struck Ahangs complaint based on Plaintiffs anti-SLAPP motion and determined that Ahang was a vexatious litigant. After this ruling, Ahang attempted to disqualify Hamids lead counsel, though that motion was rejected. Hamid alleges that he has incurred significant legal fees over the course of this litigation.
Finally, after two years of litigation, the parties settled via a 998 Offer on November 17, 2023. The 998 Offer required Defendants to pay Plaintiffs $270,000 and reasonable fees and costs as determined by the Court. Plaintiffs are requesting attorney fees pursuant to the part of the 998 Offer that allows for reasonable fees to be paid.
Plaintiffs are requesting $619,675 in attorney fees from Defendants. Plaintiffs argue in their motion that the attorney fees and hourly rates are reasonable. Plaintiffs evidence in support of their request for attorney fees included a declaration from their attorney, Christopher Beatty, and billing statements (with some redactions) that show which attorney worked on a task, what the task was, and how much time was spent on the task. (Beatty Decl., Ex. H.) The Beatty Declaration also includes a table which shows the hourly rates of the attorneys who worked on the case and their hourly rates at different times. (Beatty Decl., ¶ 35.)
Christopher Beattys hourly rates were $950 (for 2.5 hours in 2021), $975 (for 19.2 hours in 2022), and $1,300 (for 1.5 hours in 2022 and 71.6 hours in 2023). Tami K. Sims hourly rate was $1,115 (for 83.4 hours in 2023). Trevor T. Garneys hourly rate was $955 (for 87.8 hours in 2023). Arron J. Paks hourly rate was $705 (for 277.3 hours in 2023). Minh-Van Dos hourly rates were $795 (for 0.5 hours in 2021) and $840 (for 76.1 hours in 2022). Benjamin Mandels hourly rate was $595 (for 89.6 hours in 2022). Finally, Scarlet Speakmores hourly rate was $350 (for 38.8 hours in 2022).
The total lodestar was calculated by multiplying each of these attorneys hourly rate by their hours worked then adding them all together. The total hours worked for the attorneys totaled 748.3. The total lodestar amount, as previously noted, is $619,675.
Plaintiffs have also requested costs in the amount $17,036.01. However, costs are awarded pursuant to California Rules of Court, Rule 3.1700. If Plaintiffs wish to request costs, Plaintiffs should file a memorandum of costs at the appropriate time.
Defendants Evidentiary Objections to the Declaration of Keith M. Maziarek:
Sustained: Entire Declaration (irrelevant), Paragraph 11
Overruled: None
Plaintiffs Evidentiary Objections to the Declaration of June D. Coleman and the Declaration of Raffi Kassabian: The individual evidentiary objections presented by Plaintiffs to these two declarations are not consecutively numbered. Typically, when written objections to evidence are filed, the written objection must be number consecutively. (See Cal. Rules of Court Rule 3.1354 (applies to written objections to evidence for summary judgment motions).) While Plaintiffs listed them by paragraph number from the declarations, this is not necessarily effective, because in some instances Plaintiffs objected to different sentences from the same paragraph and listed them separately with the same paragraph number. The Court will not rule on the individual evidentiary objections based on this procedural deficiency. Plaintiffs have objected to the entire Coleman Declaration on the basis that it is improper expert testimony because Coleman has not shown any special knowledge, skill, etc., related to billing for these types of cases pursuant to Evidence Code § 720. The Court has determined that Coleman has sufficiently demonstrated her special knowledge as a fee expert with this declaration and her recently submitted supplemental declaration. Plaintiffs objection to the entire Coleman Declaration is overruled.
On April 9, 2024, a hearing was held on Plaintiffs motion for attorney fees. That same day, the Court issued a ruling on the submitted matter requesting that the parties submit additional briefing and that Plaintiffs submit invoices that do not redact the lawyers hourly rates or the amounts billed, along with supplemental points and authorities supporting their fee requests in light of that information.
On May 24, 2024, Plaintiffs submitted their supplemental brief. In their brief, Plaintiffs argue that the Court should award standard hourly rates and that the fees sought for all tasks are reasonable. Plaintiffs submitted new billing records that still contain some redactions, but they do not redact the lawyers hourly rates or the amounts billed.
On June 25, 2024, Defendants submitted their supplemental opposition brief. Defendants argue that the Court should significantly reduce the fees requested by Plaintiffs. Defendants also argue that the Court should consider Defendants expert declaration. Defendants also acknowledge that Plaintiffs conceded that the actual hourly rates and amounts billed are not privileged.
ANALYSIS
A prevailing party is entitled to recover its attorneys fees when authorized by contract, statute, or law. (See CCP § 1033.5(a)(10); Cal. Civ. Code § 1717(a).) A successful party means a prevailing party, and [a party] may be considered prevailing parties for attorneys fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit. (
Bowman v. City of Berkeley
(2005) 131 Cal.App.4th 173, 178.)
Plaintiffs are the prevailing party by virtue of the fact that the parties settled in Plaintiffs favor via the 998 Offer. Plaintiffs have requested a total of $619,675 in attorney fees.
Defendants previously opposed Plaintiffs motion on the basis that Plaintiffs agreed only to recover fees actually incurred and according to proof in the 998 Offer, and Defendants argued that Plaintiffs have not provided this proof. However, this argument was resolved with Plaintiffs supplemental brief, as Plaintiffs have now provided unredacted hourly rates and amounts billed.
Plaintiffs attorney Christopher D. Beatty acknowledges in his supplemental declaration that the actual amount charged to the client was $543,156. (Beatty Supp. Decl., ¶ 5.) Defendants argue in their supplemental opposition that this should be the baseline from which any reductions in the requested amount should be made. Defendants argue that Plaintiffs should only be able to recover fees actually incurred because that is what the 998 Offer between the parties allowed. (See
San Dieguito Pship, L.P. v. San Dieguito River Valley Regl Open Spake Park Joint Powers Auth.
(1998) 61 Cal.App.4th 910, disapproved on other grounds by
PLCM Group v. Drexler
(2000) 22 Cal.4th 1084.) The Court agrees. Plaintiffs should only recover the fees actually incurred, which in this case is, at a maximum, $543,156.
Next, Defendants contest the reasonableness of the fees incurred by Plaintiffs.
In determining the reasonableness of fees, courts look to the factors from
Church of Scientology v. Wollersheim
(1996) 42 Cal.App.4th 628, disapproved on other grounds by
Equilon Enters. v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 68 n.5. The factors from
Wollersheim
are (1) the amount of money involved in the litigation; (2) the nature of the litigation and its difficulty and the intricacies and importance of the litigation; (3) the skill required and employed in handling the litigation, the necessity for skilled legal training and ability in trying the case, and counsels education and experience in the particular type of work involved; (4) the attention given to the case; (5) the success of the attorneys efforts; and (6) the time consumed by the litigation. (
Id.
)
Plaintiffs argued in the initial motion that they met all of these factors. First, Plaintiffs argue that large amounts of money were involved in this litigation because of Ahangs cross-complaint for $7 million and the fact that the original settlement agreement divided the parties assets that were valued in excess of $20 million. Next, for the second factor, Plaintiffs argue that the nature of this case was an emotional case between two ex-spouses and business partners with significant assets at issue, and Ahang had been determined by the Court to have engaged in fraud. For the third factor, Plaintiffs argued that this was a complex case that required an experienced legal team to handle it, and Beattys team were the logical ones to handle it because Beatty had handled the cases that led to the settlement agreement. For the fourth factor, Plaintiffs argued that their counsel had to devote significant attention to this case. For the fifth factor, Plaintiffs argued that their counsel had success throughout the case in prevailing on the anti-SLAPP motion and defeating the attempt to disqualify Beatty, as well as being the prevailing party for the 998 Offer. Finally, for the sixth factor, Plaintiffs argued that this case consumed considerable time and went on for two years and would have gone on much longer if Hamid had not accepted the 998 Offer.
Defendants argue that the attorney fee award should be reduced as the hours billed are excessively unreasonable. A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. (
Chavez v. City of Los Angeles
(2010) 47 Cal.4th 970, 990-991(citing
Serrano v. Unruh
(1982) 32 Cal.3d 621, 635).)
This Court previously acknowledged in its tentative ruling the apparent excessive billing for several of Plaintiffs motions: the Anti-SLAPP Motion (160.5 hours), Opposition to Motion to Disqualify (96.5 hours), Demurrer (90.2 hours), Motion for Attorney fees re Anti-SLAPP Motion (49 hours), and Motion to Quash Summons (38.6 hours). This Court also suggested reducing the time spent on those motions by 25%. Defendants argue that they should be reduced by at least 60% because they are beyond excessive.
Other specific tasks that Defendants argue were excessively billed were the 4.0 hours for a half-page notice of continuance; 12.1 hours for a subpoena with 8 document requests; 14.7 hours spent on two identical subpoenas with 6 document requests; 22.3 hours spent on 3 page ex parte application and 2 page declaration to advance a hearing date; 18.3 hours preparing for and drafting a mediation brief; and 10.3 hours on generic case analysis over 48 entries. Defendants argue that the Court should also take into account all of these minor issues in awarding the attorney fees.
Defendants also argue that the at least 209.5 hours spent in relation to the Anti-SLAPP motion was beyond excessive and should be reduced by more than 25%. Defendants cite a case where the Court of Appeal affirmed a reduction in attorney fees and costs related to an Anti-SLAPP motion from $112,288.63 to just $23,000, with the Court of Appeal stating that claiming 200 hours of work & seems excessive and that such a motion should not have been such a monumental undertaking. (
Maughan v. Google Technology, Inc.
(2006) 143 Cal.App.4th 1242, 1248-1252.) Defendant
Finally, Defendants argue that the Court should consider Defendants expert declaration because it would be admissible because the experts declaration included descriptions of her experience as a fee expert. (See Coleman Decl., ¶¶ 3-10, 14, and 15.) The Court previously sustained Plaintiffs objections to the Coleman Declaration, but in light of Defendants arguments and Colemans supplemental declaration, the Court will consider Colemans declaration.
In light of all of the foregoing, the Court believes that some reduction of the requested fees is necessary. Both the previously indicated major issues and the minor issues that Defendants have brought to the attention of the Court should be reduced.
The amount that the Court will start with is $543,156 in fees actually incurred. The Court previously considered reducing certain fees by 25%. Defendants request an across the board reduction of 60%, which would be $217,262 in fees awarded. Alternatively, Defendants request that the Court do an across the board reduction of 25%, since that percentage is what the Court previously found was appropriate. Based on both the major and minor issues with the billing records, the Court agrees that an across the board reduction is appropriate. The Court also finds that an across the board reduction of 25% is reasonable. That would make the fee award $407,367.
The Court will award this amount. Plaintiffs have demonstrated that their attorneys hourly rates are rates are reasonable. Furthermore, this was a complex class requiring a lot of motion practice, particularly where the Anti-SLAPP motion is concerned. Plaintiffs have provided proof of the amount of time spent on the case through the now-unredacted billing statements.
CONCLUSION
Plaintiffs motion for attorney fees is granted in the amount of $407,367.00. Costs should be requested in a memorandum of costs.
Moving party to give notice.
Ruling
805 WOOSTER, LLC., A CALIFORNIA LIMITED LIABILITY COMPANY VS BRETT HYMAN, AN INDIVIDUAL
Jul 26, 2024 |
23STCV27912
Case Number:
23STCV27912
Hearing Date:
July 26, 2024
Dept:
50
Superior Court of California
County of Los Angeles
Department 50
805 WOOSTER, LLC
,
Plaintiff,
vs.
BRETT HYMAN
,
et al
.,
Defendants.
Case No.:
23STCV27912
Hearing Date:
July 26, 2024
Hearing Time:
10:00 a.m.
[TENTATIVE] ORDER RE:
MOTION TO BE RELIEVED AS COUNSEL
Carlos A. LLoreda, Jr. of The Law Office of Carlos A. LLoreda, Jr.
(Counsel) moves to be relieved as counsel of record for Defendant
Brett Hyman.
While Counsel has provided sufficient reason for withdrawal, Items 5, 6, and 7 of the proposed order
(Form MC-053)
are blank.
If Counsel provides the Court with a revised order prior to the hearing, the Court will grant the motion.¿
Counsel is ordered to give notice of this order.¿
DATED:
July 26, 2024
________________________________
Hon. Teresa A. Beaudet
Judge, Los Angeles Superior Court
Document
TONI HULL VS MANVEL CHAPKINYAN
Dec 20, 2023 |
Valerie Salkin
|
Breach of Rental/Lease Contract (not unlawful detainer or wrongful eviction) (General Jurisdiction) |
Breach of Rental/Lease Contract (not unlawful detainer or wrongful eviction) (General Jurisdiction) |
23VECV05619
Document
TONI HULL VS MANVEL CHAPKINYAN
Dec 20, 2023 |
Valerie Salkin
|
Breach of Rental/Lease Contract (not unlawful detainer or wrongful eviction) (General Jurisdiction) |
Breach of Rental/Lease Contract (not unlawful detainer or wrongful eviction) (General Jurisdiction) |
23VECV05619
Preview
20STCV05585 Electronically FILED by Superior Assigneddlvoalpaqnoges' ta1sStapitys Mosk Careatioa se) Audlithal Officer eeasa.Beaodebr/Clerk of Court, by D. Johnson,Deputy Clerk 1 David M. Cohen, Esq. (SBN: 160535) david@davidcohen-law.com 2 DAVID M. COHEN, A Professional Law Corporation 5950 Canoga Ave., Suite 605 3 Woodland Hills, California 91367 Telephone: (818) 466-3700 4] Facsimile: (818) 855-5915 5 Attorneys for Plaintiff CRM Properties, Inc., a California corporation 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF LOS ANGELES 10 11 CRM Properties, Inc., a California corporation, ) Case No. 20ST C¥O5585 12 Plaintiff, ) VERIFIED COMPLAINT FOR ) UNLAWFUL DETAINER 13 VS. [Unlimited Jurisdiction] 14 | Beautycon Media, Inc., a Delaware corporation; ) and DOES 1 through 10, inclusive, 15 Defendant. 16 17 18 CRM Properties, Inc., a California corporation (“Plaintiff”) alleges as follows: 19 CAUSE OF ACTION FOR UNLAWFUL DETAINER 20 (Against All Defendants) 21 A The Parties. 22 1 At all times mentioned herein, Plaintiff was and now is a California corporation 23 lawfully doing business in the State of California, County of Los Angeles. 24 2 Plaintiff is informed and believes that, at all times mentioned herein, defendant 25 Beautycon Media, Inc. (collectively with the below described DOE defendants, “Defendants”) is 26 and was a Delaware corporation doing business in the State of California, County of Los Angeles. 27 3 The true names and capacities, whether individual, corporate, associate or otherwise, 28 of Defendants named herein as Does 1 through 10, inclusive, are unknown to Plaintiff, who Case No. ‘VERIFIED COMPLAINT FOR UNLAWFUL DETAINER 6013.088 therefore sues such Defendants by such fictitious names. Plaintiff alleges, on information and belief, that defendants Does 1 through 10, inclusive, are in some manner in possession of the Premises set forth herein and/or responsible and/or liable for the damages and/or action alleged herein. Plaintiff will amend this Complaint to show and/or add the true names and capacities of such fictitiously named defendants when the same has been ascertained. 4. Plaintiff alleges on information and belief that at all times mentioned herein, each of the Defendants was and now is the agent, servant, employee, representative and/or alter ego of each of the other Defendants, and in doing the things hereinafter mentioned, was acting within the scope of his/her authority as such agent, servant, employee, representative and/or alter ego, with the 10 permission and consent of the remaining defendants. 11 B. The Lease. 12 5. On or about August 30, 2018, Plaintiff, as Landlord, and Defendants, as Tenant, 13 entered into a written License Agreement (as amended in writing on February 20, 2019, the 14 “Lease”) whereby Defendants leased the premises located at 333 South La Cienega Blvd., Space 15 101, Los Angeles, CA 90048 (the “Premises”). A true and correct copy of the Lease is attached 16 hereto as Exhibit “A” and is incorporated herein by this reference. 17 6. Plaintiff currently is the owner of the Premises and holds all of the right, title and 18 interest of the Landlord under the Lease. 19 7. The Lease provides that the prevailing party in any litigation under the Lease shall 20 be entitled to recover its attorneys’ fees and court costs from the losing party. 21 8. Plaintiff has retained the firm of David M. Cohen, A Professional Law Corporation 22 to protect its rights under the Lease, and has incurred and will continue to incur an unascertained 23 amount of reasonable attorneys’ fees and costs. Plaintiff will seek those amounts at the time of 24 trial. 25 Cc Non-Payment of Rent/Termination of Lease. 26 9. As more fully set forth in the Lease, Defendants are required during the term of the 27 Lease to pay monthly Rent. The amounts due on a monthly basis are herein after referred to as 28 “Rent” and currently total $32,500.00. Case No. ‘VERIFIED COMPLAINT FOR UNLAWFUL DETAINER 6013.088 10. Notwithstanding the requirements of the Lease, Defendants failed and refused to make all the payments of rent due under the Lease. 11. On January 27, 2020, Plaintiff duly and lawfully served a Ten (10) Day Notice to Pay Rent or Surrender Possession (the “Notice”) on Defendants in accordance with the provisions of the Lease and California Code of Civil Procedure Sections 1161, 1161.1 and 1162 by sending such Notice to Tenant’s notice address under the Lease via FedEx, accepted on January 28, 2020. The Notice required Defendants to pay the sum of $130,000.00, the amount of Rent outstanding under the Lease through January 31, 2020 for the past year, or quit the Premises within ten (10) days after service of the Notice. The Notice further set forth Plaintiff's election to declare a 10 forfeiture of the Lease. A true and correct copy of the Notice is attached hereto as Exhibit “B” and 11 incorporated herein by this reference. 12 12. More than ten (10) days have elapsed since the service of the Notice and there was 13 no lawful tender of the full amount set forth in the Notice. Defendants are still in possession of the 14 Premises. 15 13. Plaintiff is informed and believes that the daily rental value of the Premises totals 16 $1,068.49 per day. 17 WHEREFORE, Plaintiff prays for judgment against the Defendants as follows: 18 1 For immediate restitution and possession of the Premises; 19 2 For an order that the Lease is forfeited and terminated; 20 3. For an order that Defendants' right to possession of the Premises has been 21 terminated; 22 4 For past due Rent totaling $130,000.00 and damages according to proof but in no 23 case less than $1,068.49 per day for each day Defendants continue in possession of the Premises 24 from February 1, 2020 up to the time of Judgment; 25 5. For attorneys’ fees and costs of suit incurred herein; and 26 27 28 Case No. ‘VERIFIED COMPLAINT FOR UNLAWFUL DETAINER 6013.088 6. For such other and further relief as the Court deems just and proper. Dated: February 12, 2020 DAVID M. COHEN, A Professional Law Corporation - David M. Cohen Attorneys for Plaintiff CRM Properties, Inc., a California corporation 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. ‘VERIFIED COMPLAINT FOR UNLAWFUL DETAINER 6013.088 VERIFICATION Ihave read the foregoing VERIFIED COMPLAINT FOR UNLAWFUL DETAINER and know its contents. The matters stated in it are true to the best of my own knowledge except as to those matters which are stated on information and belief, and as to those matters I believe them to be true, (Check applicable paragraph) Iam a party to this action. lam the Chief Business Officer of Caruso Management Company, Ltd., managing agent of CRM Properties, Inc., a California corporation, a party to this action, and am authorized to make this verification for and on its behalf, and ] make this verification for that reason. 10 lam one of the attorneys for plaintiff, a party to this action. Such party is absent from the county of aforesaid where such attorneys have their office, and 1 make this verification for 11 and on its behalf, and I make this verification for that reason. 12 13 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 14 Executed on February 12, 2020, at Los Angeles, California 15 16 Oo anne 17 “eVy 18 19 20 21 22 23 24 25 26 27 28 Case No. VERIFIED COMPLAINT FOR UNLAWFUL DETAINER 6013.088 EXHIBITA DocuSign Envelope ID: 67956445-462E-47CD-B97A-73CEEFE3E1D8 LICENSE AGREEMENT. BEAUTYCON MEDIA This License Agreement (this “Agreement”) is made as of August 30, 2018, by and between Caruso Management Company, Ltd. as agent for CRM Properties, Inc. (“Licensor”), and BeautyCon Media, Inc. (“Licensee”), with respect to the following facts: A. Licensor owns and operates the premises located at 333 South La Cienega Boulevard located in Los Angeles, California, 90048 (the “Premises”. B. Licensee desires to enter onto the Premises for the purpose of conducting business from the Licensed Area (as defined below); and C. Licensor is willing to grant Licensee a temporary license to operate in the Licensed Area an experiential activation space, subject to the terms and provisions of this Agreement. NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Licensor and Licensee hereby agree as follows: 1 Basic Terms. The following terms shall have the following meanings throughout this Agreement: A. PREMISES: 333 South La Cienega Boulevard Los Angeles, California 90048 B. LICENSOR: Caruso Management Company, Ltd., a California limited partnership, as agent for CRM Properties, Inc., a California corporation 101 The Grove Drive Los Angeles, California 90036 Licensor’s Notice Address: 101 The Grove Dr., Los Angeles, CA, 90036 Management Contact: Bret Nielsen, Senior Vice President, Leasing & Asset Management Phone Number: (323) 900-8100 C. LICENSEE: Licensee Notice Address: Beautycon Media, Inc., a Delaware Corporation 1161 Vine St Los Angeles, California 90038 Licensee Contact: Tripp Mahan, Executive Vice President, Business Operations Phone Number: (323) 807-6272 (O) D. LICENSEE’S TRADE NAME: Beautycon DocuSign Envelope ID: 67956445-462E-47CD-B97A-73CEEFE3E1D8 E. LICENSED AREA: Space 101 at the Premises, which space consists of approximately 20,000 square feet and is designated on the site plan attached hereto as Exhibit “A” and incorporated herein by this reference. F, TERM: The term (“Term”) of this Agreement shall be for the period commencing on October 15, 2018 (the “Commencement Date”) and expiring through and including February 15, 2019 (the “Expiration Date”) subject to Licensor’s early termination rights as provided herein, and as the Term may be extended by mutual written agreement pursuant to Paragraph 3 below. G. PERMITTED USE: The Licensed Area shall be used solely for the operation of an experiential activation, a space for guests to have an immersive experience with beauty products, including highly photographable exhibits on display (and which may include, without limitation, a shop, salon, masterclasses or influencer programming (i.e. panels or parties)), as well as other related uses upon Licensor’s approval, not to be reasonably withheld. It is anticipated that the tickets to attend the activation will be sold for $35.00 per person, and there will be up to 1,000 guests per day. H. BASE LICENSE FEE: Fifty-Five Thousand Dollars ($55,000.00) for each of months One (1) and 4 (4) (October 15 — November 14 2018 and January 15 — February 15 2019); Seventy Thousand Dollars ($70,000.00) per month for months Two (2) and Three (3) (November 15th through January 14 2018) of the Term; Seventy Thousand Dollars ($70,000.00) per month for any extended term. Payment of Fifty-five Thousand Dollars ($55,000.00) for the first month is due upon execution of this Agreement. Licensee shall pay holdover rent in the amount of One hundred Ten Thousand Dollars ($110,000.00) per month, pro- rated daily, for any period of time after the Term during which Licensee continues to occupy the License Area. During the Term, Licensee also guarantees a minimum of Forty-five Thousand Dollars ($45,000.00) in investment in media with the Licensor on terms no less favorable to Licensee than offered by Licensor to any other tenants or licensees. I UTILITY CHARGE: Licensee to pay the cost for all actual, out of pocket, third party utilities costs per month for Licensee’s actual usage of the Licensed Area during the Term 2 DocuSign Envelope ID: 67956445-462E-47CD-B97A-73CEEFE3E1D8 and Licensor shall promptly provide Licensee true, complete and correct verification of the same as Licensee may request. To the extent to which actual usage of the Licensed Area is not submetered, Licensee shall pay for the prorata share of the utility costs for the meter, which shall be determined reasonably and in good faith by calculating Licensee’s square foot percentage as a percentage of the applicable property’s total leasable area. Notwithstanding anything in this Agreement to the contrary, Licensor to pay Five Thousand Dollars ($5,000) each month during the Term to cover the initial Five Thousand Dollars ($5,000) of the cost for all actual, out of pocket, third party utilities costs for such month for Licensee’s actual usage of the Licensed Area during the Term. J SECURITY DEPOSIT: Sixty-Five Thousand Dollars ($65,000.00) due upon execution of this Agreement. K. CODE REQUIREMENTS: All applicable local, state and federal statutes, regulations, rules, codes and permitting, including building codes, ordinances and other requirements of governmental authorities now or hereafter in effect, applicable to the Premises and laws and regulations relating to seismic conditions, health, life-safety systems and the accessibility or usability of the Premises by disabled persons. 2. Grant of License; Licensed Area. Licensor hereby grants to Licensee and Licensee hereby accepts from Licensor a license to use the Licensed Area for the Permitted Use during the Term upon the terms and subject to the conditions set forth in this Agreement subject to Licensor’s providing that the Premises (including, without limitation, Common Areas) will be free from any known (or that which with reasonable diligence should be known) defects, dangerous/hazardous conditions, impairments, or other issues that might inhibit Licensee’s use thereof for its intended purpose in any manner (the “License”); provided that in the event Licensor fails to so provide the Premises at any time, Licensee may elect to receive a pro rata License Fee credit for such issues (as mutually determined by the parties reasonably and in good faith) or to terminate this License without further obligation to Licensor or to receive a License Fee free extension of the Term for a reasonable period of time for such time that the Premises were not so provided. All references to the Licensed Area herein shall be deemed to include, without limitation, any and all common areas and facilities designated by Licensor from time to time for the nonexclusive use of Licensee in common with other authorized users, as such areas and facilities are set forth on Exhibit A (collectively, “Common Area”). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, it is understood and agreed that the Common Area shall not in any event be deemed to be a portion of or included with the Licensed Area licensed to Licensee hereunder. Such Common Area shall be subject to the exclusive management and control of Licensor. Licensor shall have the right from time to time to designate, relocate and limit the use 3 DocuSign Envelope 1D: 67956445-462E-47CD-B97A-73CEEFE3E1D8 of particular areas or portions of the Common Area and to establish, propagate and enforce the tules and regulations concerning the Common Area. Licensor agrees that the Premises shall at all times during the Term be fit, usable, and habitable in all respects for Licensee’s intended purpose, including, without limitation, all Common Areas and areas permitting access to the Premises shall at all times during the Term be unobstructed such that there will be no material interference (e.g., anything preventing or inhibiting foot traffic around/to or access to) with the unfettered access of Licensee or anyone permitted onto the Premises for or on behalf of Licensee; provided that Licensor shall not be deemed to be in breach of this sentence where an applicable municipality (e.g., personnel directly employed by the city, county, etc.) is the sole cause of any such event that would otherwise be a breach by Licensor. 3. Extension Periods; Required Notice of Termination. At the end of the Term, the License and this Agreement may be extended for successive one-month periods, each ending on the last day of the applicable calendar month as provided in this Paragraph 3. Licensee shall notify Licensor in writing at least thirty (30) days’ prior to the Expiration Date stating whether Licensee will extend the Term for an additional one-month period pursuant to this Paragraph 3 (an “Extension Period”) or vacate the Licensed Area on the Expiration Date or the end of the then- current Extension Period, as applicable. If Licensee shall elect an Extension Period, Licensor shall have the right to accept or reject such election in Licensor’s sole and absolute discretion by delivering written notice to Licensee within five (5) business days of receipt of Licensee’s written notice electing an Extension Period, provided that if Licensor shall fail to accept or reject the Extension Period in writing within such time, Licensor shall be automatically deemed to have accepted the Extension Period. Licensor shall also have the right, in its sole and absolute discretion, to adjust the License Fees due under this Agreement for any Extension Period, provided that Licensor shall give Licensee written notice of such adjustment at least thirty (30) days prior to such adjustment taking effect, and Licensee shall have ten (10) days to either accept such adjustment to the License Fees or to withdraw its election of an Extension Period. If Licensee should vacate the Licensed Area less than thirty (30) days after delivery of written notice of its intent to vacate the Licensed Area, then Licensee shall be liable for all License Fees due hereunder until the earlier of the date that the Licensed Area is actually occupied by a replacement licensee or lessee (approved by Licensor in its sole discretion) who is paying license fees or rent (as applicable) or the expiration of the thirty (30) day period following notice of Licensee’s intent to vacate the Licensed Area. 4. Use/Trade Name. Licensee shall use the Licensed Area only for the Permitted Use and for no other uses whatsoever. Licensee shall operate its business at the Licensed Area under Licensee’s Trade Name as set forth in Paragraph 1.D above. 5. License Fees. Licensee shall pay to Licensor the Base License Fee, the Utility Charge and the other charges otherwise required to be paid under this Agreement (all such amounts collectively referred to herein as “License Fees”). Licensee shall make payment of all License Fees at the address set forth in Paragraph 1.B (Attn: Management Office) or as such other address as Licensor may designate from time to time. All payments of License Fees shall be made without set-off or counterclaim unless Licensor is in breach of this Agreement. Payments of all License Fees for partial months shall be prorated accordingly. With respect to any License Fees payable monthly, Licensee shall pay such License Fees on or before the first day of each month provided that License Fees for the first month of the Term be paid upon mutual execution of this Agreement. 6. Percentage License Fee. Intentionally deleted. 4 DocuSign Envelope |D: 67956445-462E-47CD-B97A-73CEEFE3E1D8 7. Audit. Intentionally deleted. 8. Interest and Late Charge. Licensee acknowledges that late payment by Licensee to Licensor of License Fees during the Term will cause Licensor to incur costs not contemplated by this Agreement, the exact amount of such costs being extremely difficult and impracticable to fix. Such costs include, without limitation, processing and accounting charges. Therefore, if Licensee shall fail to make any payment of License Fees to Licensor when due during the Term and then such failure continues for longer than ten (10) days following Licensee’s receipt from Licensor of written notice of such failure, interest on said late payment shall accrue at the rate of one and one- half percent (1% %) per month, or the highest rate permitted by applicable law, whichever is less, from the date said payment was due, and said interest shall become due and payable on the first day of the month following the month in which said payment was due. 9. Security Deposit. Licensee shall deposit with Licensor a Security Deposit in the amount set forth in Paragraph 1.K above to secure Licensee’s performance of each and every covenant and agreement to be performed by Licensee hereunder. Licensor shall have the right, at its option, to apply reasonably and in good faith all or part of the Security Deposit toward the payment of the amounts required to remedy any default of Licensee in the payment of License Fees and/or in the performance of any other covenant or agreement contained herein, provided however, the existence of the Security Deposit shall not affect the rights of the Licensor in the event of any such nonpayment or failure to perform, nor shall the same in any way limit Licensee’s responsibility therefore, and shall not preclude or extinguish any other right or remedy to which Licensor may be entitled. If Licensor applies all or part of the Security Deposit, Licensee shall, upon notice from Licensor, pay to Licensor an amount sufficient to restore the Security Deposit to the original full amount. Upon termination of this Agreement, Licensor shall promptly reimburse Licensee for the amount of any unused portion of the Security Deposit and in no event shall any interest be due and owing thereon. 10. Work at Licensed Area. Licensor agrees that it will, at its sole cost and expense, commence the construction of the Licensed Area and pursue the completion (with the exception of delays or conditions beyond Licensor’s control) to make the Licensed Area suitable for Licensee’s operations in accordance with Licensee’s and Licensor’s design and plans (“Licensor’s Work”), which construction shall include the terms generally described in the Landlord Work Letter attached hereto as Exhibit “B”. Licensor anticipates delivering possession of the Licensed Area to Licensee on October 15, 2018 with Licensor’s Work completed. Any Licensee improvement and other work which is not specified on Exhibit “B” as Licensor’s Work is referred to herein as “Licensee’s Work” and shall be performed by Licensee, at Licensee’s own cost. Any equipment, work, fees and permits other than those specifically enumerated as Licensor’s Work in Exhibit “B” which Licensor elects to install or construct in the Licensed Area or pay, on Licensee’s behalf, and in each case solely at Licensee’s request, shall be paid by Licensee. By taking possession of the Licensed Area, Licensee shall be deemed to have accepted the Licensed Area, to have acknowledged that the Licensed Area is in the condition called for hereunder, except for punch list items identified in writing by Licensee to Licensor, which items Licensor agrees Licensor shall have fully remedied within five (5) days following the Commencement Date, and except for the completion of any such punch list items, Licensee to have agreed that as of that time, all obligations of Licensor imposed under this License have been fully performed. Licensor shall make, and hereby is deemed to have made, a non-exclusive assignment to the joint and several benefit of Licensor and Licensee of any and all warranties set 5 DocuSign Envelope ID: 67956445-462E-47CD-B97A-73CEEFE3E1D8 forth in the specifications for Licensor’s Work which relate solely to Licensee’s repair or maintenance obligations hereunder. Any work performed by Licensee or Licensor on the Licensed Area shall be performed in a good and workmanlike manner. Licensee and Licensor shall secure any and all necessary permits, authorizations and approvals which may be required in connection with their work, and Licensee shall at all times comply with all government rules and regulations, ordinances, statutes and laws now or hereinafter in force pertaining to the Premises and Licensee’s use thereof, and shall provide Licensor with copies of same. Licensee shall not make any alterations or improvements to the Licensed Area without Licensor’s advance written consent, to be given or withheld in Licensor’s sole and reasonable good faith discretion. Between the hours of 7:00pm and 7:00am, Monday through Sunday, Licensee shall not conduct, or permit to be conducted, any construction activity at the Licensed Area without Licensor’s prior written approval. Licensee shall pay all taxes based on any property of Licensee, real or personal, which shall at any time be in the Licensed Areas or any other part of the Premises, including Licensee’s installations, additions, improvements, fixtures or personal property. Licensee shall not suffer any mechanic’s lien to be filed against the Licensed Area or any other part of the Premises, by reason of any work, labor, services, or materials performed at or furnished to the Licensed Area for Licensee or anyone holding the Licensed Area through or under Licensee; provided, however, that Licensor shall be responsible for any of the foregoing as a result of Licensor’s Work. If a mechanic’s lien as a result of Licensor’s Work or Licensor’s alterations or improvements to the Licensed Area shall be filed, Licensor shall promptly remove it at Licensor’s sole cost and expense, and Licensor shall indemnify, defend and hold harmless Licensee from any claims, causes of action, damages or other losses arising out of a mechanic’s lien placed upon the Licensed Area or the Premises as a result thereof. 11. Utilities. During the Term of this Agreement, Licensee shall either: (i) within thirty (30) days following receipt of an invoice from Licensor, reimburse Licensor if Licensor has paid the applicable Utility Charge bill; or (ii) pay directly to the vendor and/or utility company, before delinquency, at its sole cost, all actual reasonable third party charges for trash removal, alarm monitoring, water, gas, heat, electricity, telephone service, fiber optics, any and all usage, service, hook-up, connection, availability and/or standby fees, sewer service and sewer rental, charged or attributable to the Licensed Area, and all other services or utilities used in connection with the Licensed Area. At Licensee’s expense, gas and electrical service will be separately metered to the Licensed Area. Licensor may install, at Licensee’s expense and at Licensee’s request therefor, a separate meter or submeter for water and/or power serving the Licensed Area. With regard to any utilities which are not separately metered, Licensor shall allocate the cost thereof in an equitable good faith, reasonable manner, based on any submeter or, if there is not a submeter, then based on Licensor’s reasonable good faith judgment of Licensee’s respective utilization, and Licensee will pay a monthly charge based on such estimate. Nothing contained in this Agreement shall limit Licensor in any way from granting or using easements on, across, over and under the Premises for the purpose of providing utility services provided that none of the same materially interfere with Licensee’s use of the Licensed Area. Notwithstanding anything in this Agreement to the contrary, Licensor to pay Five Thousand Dollars ($5,000) each month during the Term to cover the initial Five Thousand Dollars ($5,000) of the cost for all actual, out of pocket, third party utilities costs for such month for Licensee’s actual usage of the Licensed Area during the Term. DocuSign Envelope ID: 67956445-462E-47CD-B97A-73CEEFE3E1D8 12. Maintenance of the Licensed Area. Licensor shall, at Licensor’s sole cost and expense, maintain the Licensed Area and Licensor’s property and equipment, including, but not limited to, heating, ventilation, and air conditioning (HVAC) equipment, in first class condition and repair and in compliance with all applicable laws and insurance requirements, and in good, clean, sanitary and safe order, free of debris. Licensee shall, at Licensee’s sole cost and expense, maintain Licensee’s property and equipment brought into the Licensed Area in first class condition and repair and in compliance with all applicable laws and insurance requirements, and in good, clean, sanitary and safe order, free of debris, reasonable wear and tear excepted. All repairs and replacements to any property or equipment shall be of a quality equal to new or like-new. If Licensor refuses or neglects to maintain and/or make repairs to the Licensed Area, or any part thereof, in a manner reasonably satisfactory to Licensee, Licensee shall have the right, but not the obligation, on giving Licensor reasonable advance written notice of its election to do so (but not less than three (3) business days’ notice), to make such repairs or replacement, or perform such maintenance on behalf of and for the account of Licensor. Licensor shall within thirty (30) days after written request, reimburse Licensee for such costs incurred by Licensee. 13. Licensor’s Obligations. Except for repairs specifically required to be made by Licensee pursuant to this Agreement, Licensor covenants and agrees, at its sole cost and expense and without reimbursement or contribution by Licensee, from and after the Commencement Date and until the end of the Term, to keep and maintain in good condition and repair, and replace, as and when necessary, (i) the electric, gas, water, sanitary sewer, and other public utility lines serving the Licensed Area, to the point of connection to the Licensed Area and all utilities located within or below the floor slab of the Licensed Area; (ii) all electric, gas, water, sanitary sewer, and other public utility lines and ducts in or passing through the Licensed Area which do not exclusively serve the Licensed Area; (iii) the structural elements of the Licensed Area, which shall be deemed to include, without limitation, the roof joists, columns, footings, foundation, exterior walls (including repainting, but excluding plate glass, storefront windows, doors, door closure devices, window and door frames, molding, locks and hardware, and painting or other treatment of interior walls), floor (excluding floor coverings, unless the same is damaged as a result of a floor defect or settling), and the structural elements of any building of which the Licensed Area may be a part; (iv) the roof, gutters, flashings, downspouts and scuppers; and (v) the existing and/or replacement cooling tower serving the HVAC units in the Licensed Area as well as the heating, ventilation, and air conditioning (HVAC) equipment in, on and/or servicing the Licensed Area. Additionally, Licensor shall be responsible for any repairs to the Licensed Area of any nature whatsoever if occasioned by any act or omission of Licensor, its agents, contractors, licensees, guests, customers, patrons, or employees, or any government mandated alteration required as a result of Licensee’s use (and not included in Licensor’s Work) post Commencement Date. Licensor shall, at Licensor’s sole cost and expense, maintain the Licensed Area, and Licensor’s property and equipment, in first class condition and repair and in compliance with all applicable laws and insurance requirements, and in good, clean, sanitary and safe order, free of debris. If Licensor refuses or neglects to maintain and/or make repairs to the Licensed Area which are Licensor’s obligation, or any part thereof, in a manner reasonably satisfactory to Licensee, Licensee shall have the right, but not the obligation, on giving Licensor reasonable advance written notice of its election to do so (but not less than three (3) business days’ notice), to make such repairs or perform such maintenance on behalf of and for the account of Licensor. Licensor shall within thirty (30) days after written request, reimburse Licensee for such costs incurred by Licensee. Licensee shall, at Licensee’s sole cost and expense (other than the items referred to above in this Section, which 7 DocuSign Envelope ID: 67956445-462E-47CD-B97A-73CEEFE3E1D8 shall be Licensor’s responsibility and cost), maintain the Licensed Area, and Licensee’s property and equipment, in first class condition and repair and in compliance with all applicable laws and insurance requirements, and in good, clean, sanitary and safe order, free of debris, reasonable wear and tear excepted. If Licensee refuses or neglects to maintain and/or make repairs to the Licensed Area which are Licensee’s obligation, or any part thereof, in a manner reasonably satisfactory to Licensor, Licensor shall have the right, but not the obligation, on giving Licensee reasonable advance written notice of its election to do so (but not less than three (3) business days’ notice), to make such repairs or perform such maintenance on behalf of and for the account of Licensee. Licensee shall within thirty (30) days after written request, reimburse Licensor for such costs incurred by Licensor. 14. Parking. Subject to the taking of vehicle parking spaces by condemnation or other events beyond the control of Licensor, Licensor shall maintain not less than that number of vehicle parking spaces which are prescribed by Code Requirements. Licensee has personally inspected the Premises, or plans therefor, and has satisfied itself that parking is adequate for Licensee’s purposes. Licensor shall have the right, but not the obligation, to: (i) designate from time to time which part(s) of the Premises shall be used for vehicle parking by Licensee and Licensee's customers, sublessees, concessionaires, and invitees; (ii) require that Licensee and Licensee’s employees park their vehicles in designated parking areas, including Easement Areas; (iii) establish restricted and exclusive parking zones; (iv) institute fee and/or validated parking controls with variable fees; and (v) designate a location where Lyft, Uber and/or any other car service may drop off and pick up passengers. Notwithstanding anything in this Agreement to the contrary, Licensor shall provide and designate five (5) parking spaces, in locations to be mutually approved by Licensor and Licensee, for the exclusive use of Licensee during the Term. 15. Employee Parking. Licensee and its employees shall park their vehicles only in areas as are from time to time reasonably designated for that purpose by Licensor, and Licensor may change such designated areas at any time upon written notice to Licensee. Licensee and Licensee’s employee parking shall be located on the 3" floor of the parking garage, just below Eli’s. Licensee and Licensee’s employees shall not park on surrounding residential streets. Licensor shall make available for purchase twenty-five (25) monthly employee parking spaces to Licensee during the duration of the Term at the rate of $100.00 per month. Licensee shall furnish Licensor with a list of its and its employees’ vehicle license numbers within fifteen (15) days after taking possession of the Licensed Area and Licensee shall thereafter notify Licensor of any change in such list within five (5) days after such change occurs. Licensee and its employees shall use any vehicle entry system employed at the Premises (such as a card key, the reasonable cost of such keys being paid for by Licensee) and attach to their vehicles any identification stickers required by Licensor. In the event that any of Licensee’s employees do not abide by the vehicle entry system established by Licensor for the vehicle parking areas, Licensor shall be entitled to charge such employees the then prevailing maximum daily vehicle parking fee. Licensee acknowledges that Licensor may tow away, at the vehicle owner’s expense, from the Premises vehicles belonging to Licensee or Licensee’s employees parked in violation of these provisions, and/or to attach violation stickers or notices to such vehicles. Licensee agrees to assume responsibility for compliance by its employees with, and payment by such employees of all charges arising under the parking provisions contained herein. Notwithstanding anything in this Agreement to the contrary, Licensor shall provide and designate five (5) parking spaces, in locations to be mutually approved by Licensor and Licensee, for the exclusive use of Licensee during the Term. DocuSign Envelope ID: 67956445-462E-47CD-B97A-73CEEFE3E1D8 16. Validation System. Licensor shall establish a parking validation system providing free parking with validation for the first onc (1) hour, four dollars ($4.00) for the second (2") hour, five dollars ($5.00) for the third (3) hour, and one dollar ($1.00) for cach fifteen (15) minutes thereafter, for a maximum daily charge of twenty-four dollars ($24.00) for customers of Licensee. Inno event shall Licensee or Licensee's customers be charged for the cost of validation stamps of Licensee's customers. 17. Deliveries and ABC Licensed Events. 17.1 Licensee shall: (i) cause the loading or unloading of trucks or similar delivery vehicles in the Premises to be done only in the loading and service areas which shall be reasonably designated by Licensor and, to the extent feasible, such deliveries shall be made during off-peak traffic periods; (ii) not obstruct the sidewalks, adjoining street or Common Areas of the Premises; and (iii) perform or cause to be performed the loading and unloading of trucks, delivery and service vehicles in conformance with all Code Requirements, and only during such hours and days and in accordance with procedures that are reasonably established by Licensor from time to time and communicated to License. Licensor shall not (and shall not permit any other person or party it invites on, permits or grants