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IN THE COUNTY COURT IN AND FOR
DADE COUNTY, FLORIDA CIVIL DIVISION
Case No 4130 2 5GE05
CARDINAL PLAZA CORP
C08)
Plaintiff (s) Flor. °°
Vs ( SSL COMPLAINT FOR EVICTION
Elizabeth Gomez
Defendant(s)
Plaintiff, CARDINAL PLAZA CORP t Elizabeth Gomez
sues Defendan
and alleges -o
1 This is an action to evict a tenant from real property| in
2220 NE 2nd Ave, Unit 0820
Miami County, Florida nh
Plaintiff owns the following described real property in said County
2220 NE 2nd Ave, Unit 0820 Miami, Florida. 33137
Defendant has possession of the property under a/an (oral/written) agreement to pay rent of
$ 2,725.00 Payable MONTHLY
A copy of the written agreement, if any, is attached as exhibit “A’
Defendant failed to pay the rent due June 1st 20 24
Plaintiff served Defendant with a notice on June 7th 20 24 to pay the Rent or
deliver possession but Defendant refuses to do either.
A copy of the notice is attached as Exhibit “B
WHEREFORE, Plaintiff demands judgment for possession of the property a; inst Defendant.
[ban jlew dry Olle
COPY OF THE COMPLAIN pre ol
AND SUMMO
OF THE
iS WAS MALBD Signature
CARDINAL PLAZA CORP
05 208SD
JUL a Landlord
425 NE 22nd St Ste 301, Miami, FL 33137
aur
wD fr and paca Address
By (Vy (305) 4381290
Telephone Number
NOTICE TO TENANT-RENT UNPAID
SEC, 83 56 (3) F.S.
Three (3) day Notice to Pay Rent
OR DELIVER POSSESSION
Date; 06/07/2024
To Elizabeth Gomez, and all others in possession of:
Bedrooms Bathrooms, Retail Space Unit No 0820
AppRESS: 22260. NE 2" Ave Miami, FL 33137
Located in MIAMI County, Florida, Tenant.
You are hereby notified that you are indebted to me in the sum of $ $2,750.00 for rent and use
of premises above described, now occupied by you.| Your rental agreement is from week to week
or month to month.
at $ per week, due on the day|of each week, or
1 day of each month.
at $ $2,725.00 per month, due on the
I demand payment of the said rent or possession of said premises within three days (excluding
date of service, Saturdays, Sundays and legal holidays) from the date of delivery of this notice, to
will on or before the__11__ day of _ June __ 2024
: This notice is given you pursuant to Florida States Sec. 83.56 (3). Govern yourself accordingly.
LANDLORD:
PROOF OF SERVICE CARDINAL PLAZA CORP
(5 This notice was served upon the person owing the rent
AUTHORIZED AGENT:
g The person owing the rent was absent from his last usual SARA OQUENDO
place of residence, and this Notice was left at said residence by Property Manager
posting
ADDRESS:
By: SARA OQUENDO 425 NE 22" St, Ste 301,
MANAGER Miami, FL, 33137
06/07/2024 06/11/2024
DATE DUE DATE PHONE: 305-438-1290
LEASE AGREEMENT
This LEASE (the "lease", "Lease", or "Rental Agreement" or any variation thereof), made this z day
of ugos , 2023 (the “Effective Date”) by and between:
LANDLORD CARDINAL PLAZA CORP, a Florida Corporation,
TENANT(S) CLizabcth QGomtez-
WITNESSETH
The LANDLORD, in consideration of] the terms, conditions and covenants set forth
hereinafter, hereby leases unto the TENANT Apartment No } in the building located at
2220 NE 2"! Ave. Miami, FL 33137, which apartment is to be used and occupied only as a private
residence by the TENANT and the immediate members of TENANT family which consists of a maximum
of 6 people for 3 bedrooms, 4 people for 2 bedrooms and 2 people for | bedroom or studio apartments.
This Lease shall commence on ate doeost 2023
31 2024
.
(the "Rent Commencement Date") and terminate on Yu
("Expiration Date"). The rent payable by TENANT fo LANDLORD is the sum of
$ ajo = = per month which shall be payable in advance on the first day of each
and every month during the term of the Lease. All rent shall be deemed earned when paid and if the
Lease is terminated, the TENANT shall not be entitled to the return of any part of the rent paid. All rent
shall be paid by the TENANT to the LANDLORD at sich office of the LANDLORD as it may specify
in writing and shall remain so until is changed by written notice to the TENANT.
In addition to the first monthly rental payment the TENANT shall deposit with
the LANDLORD the sum of $ 514 50 as Security to the
-ANDLORD for the performance by the TENANT offall the terms, condition and agreements in this
Lease required to be performed by the TENANT Security Deposits are held in a non- interest bearing
account. SECURITY DEPOSIT SHALL NOT BE CONSIDERED RENT. TENANT MUST PAY ALL
RENTAL PAYMENTS THROUGHOUT THE TERM |OF THE LEASE.
The parties agree to be bound by the provisions of this LEASE, including the
covenants and conditions hereinafter set forth.
Initial Eq Initia
1) SECURITY DEPOSIT: If this Lease be terminated as a result of the TENANT, then the
Security Deposit referred to above shall become the unconditional property of the LANDLORD,
not as a penalty but on account of damages, the parties agreeing that the damages to the
LANDLORD would not be less than the amount of the Security Deposit. If the TENANT shall
not be in default upon the expiration of the Lease, and if the demised premises shall be returned
and surrendered to the LANDLORD in the same good order and condition as when it was received
the deposit shall be returned, less the sum of $500, which is Non-Refundable in all the cases as
an Administrative Fee.
The following is Florida Statute 83.49(2), which we are required to provide to you:
YOUR LEASE REQUIRES PAYMENT OF CERTAIN
DEPOSITS. THE LANDLORD MAY TRANSFER ADVANCE
RENTS TO THE LANDLORD’S ACCOUNT AS THEY ARE
DUE AND WITHOUT NOTICE. WHEN YOU MOVE OUT,
YOU MUST GIVE THE LANDLORD YOUR NEW ADDRESS
SO THAT THE LANDLORD CAN|SEND YOU NOTICES
REGARDING YOUR DEPOSIT. THE LANDLORD MUST
MAIL YOU NOTICE, WITHIN 30 AYS AFTER YOU MOVE
OUT, OF THE LANDLORD’S INTENT TO IMPOSE A CLAIM
AGAINST THE DEPOSIT. IF YOU DO NOT REPLY TO THE
LANDLORD STATING YOUR OBJECTION TO THE CLAIM
WITHIN 15 DAYS AFTER RECEIPT OF THE LANDLORD’S
NOTICE, THE LANDLORD WILL COLLECT THE CLAIM
AND MUST MAIL YOU THE REMAINING DEPOSIT, IF ANY.
IF THE LANDLORD FAILS TO TIMELY MAIL YOU NOTICE,
THE LANDLORD MUST RETURN THE DEPOSIT BUT MAY
LATER FILE A LAWSUIT AGAINST YOU FOR DAMAGES.
IF YOU FAIL TO TIMELY OBJECT TO A CLAIM, THE
LANDLORD MAY COLLECT FROM THE DEPOSIT, BUT
YOU MAY LATER FILE A LAW jer CLAIMING A
REFUND.
|
YOU SHOULD ATTEMPT TO INFORMALLY RESOLVE ANY
DISPUTE BEFORE FILING A LAWSUIT. GENERALLY, THE
PARTY IN WHOSE FAVOR A JUDGMENT IS RENDERED
WILL BE AWARDED COSTS AND ATTORNEY FEES
PAYABLE BY THE LOSING PA ry.
THIS DISCLOSURE IS BASIC. PLEASE REFER TO PART Il OF
'
CHAPTER 83. FLORIDA STATUTES, TO DETERMINE YOUR
LEGAL. RIGHTS AND OBLIGATIONS.
2) OCCUPANCY AND USE OF PREMISES: T NANT shall occupy and use the premises in
accordance with and abide by and comply with all rules and regulations now existing and from
a
2 Initial Eq initial
time to time established by the LANDLORD with respect to said premises, as well as comply
with all ordinances and laws governmental bodies having jurisdiction over the same. The
TENANT covenants and agrees to use the demised premises in a quiet and peaceful manner.
Only those persons whose names appear on this leas¢ may occupy the apartment. No other persons
may occupy the apartment for more than three (3) days per month without prior written consent
of the LANDLORD or its Agent. Such consent may be withheld for any reason or for no reason.
There will be a charge of an additional $500.00 (FI (E HUNDRED) per month per person in rent
for occupancy of other persons not on this lease. |
3) TENANT'S WAIVER OF LIABILITY AND ACCEPTANCE OF PREMISES:
TENANT acknowledges that taking of possession by the TENANT shall be conclusive evidence
that the premises and building are in satisfactory| condition and acceptable to the TENANT.
TENANT acknowledges that he/she has inspected the premises, that it is in good order, that he/she
accepts the same, and agrees to maintain said premises in the same condition, order and repair.
TENANT releases LANDLORD from any and all claims arising from any defect in the condition
of the building or premises, or for any defect in equipment, it being understood that LANDLORD
shall have no liability for damage or injury to the TENANT or his property by reason of the
condition of the premises or failure of the LANDLORD to keep same in repair. The LANDLORD
shall not be liable for any damage or injury to the TENANT, his family or guests, or loss of
personal property arising out of the use, occupancy or condition of the leased premises or
for damage or loss occasioned by fire, windstorm or other casualty, nor shall the LANDLORD
be liable for any damage or injury by reason of water, rain, gas of any kind, pollution or
electricity which may leak into, issue or flow from any part of the building of which the demised
premises are a part, or from pipes or plumbing works of the same, or from any place or quarter,
provided the LANDLORD shall make necessar: repairs to prevent further damages with
reasonable diligence after notice given to it, and the TENANT shall give to the LANDLORD or
plumbing, heating, cooling, or warming apparatu:
provisions of Florida Statutes Section 83.51(2).
1
its agent prompt written notice of any accident o defect in the water pipes, electricity or any
The TENANT further hereby waives the
|
4) VISITATION BY LANDLORD: The TENANT hereby consents to the LANDLORD'S
entering any dwelling unit from time to time|in order to inspect the premises, make
necessary or agreed repairs, decoration, alteration, or improvements; supply agreed
services; or exhibit any dwelling unit to prospective or actual purchasers, mortgagees,
tenants, workmen or contractors. Specifically, though without limitation, the LANDLORD
may exercise such right of entry even though in order to exercise it the LANDLORD may be
compelled to utilize a pass key or to remove or break a lock which the TENANT may have
installed in doors contained in or affording ingress/egress to the apartment.
5) CHANGE OR ALTERATIONS: The TENANT shall not make any changes,
alterations or additions in or upon the demised premises of any kind or nature, including
installation of exterior radio or television antennas, or individual room air conditioners without
the written consent of the LANDLORD. Moreover, in the event the TENANT violates any
condition or stipulation in this paragraph, LANDLORD may remove or change any addition or
alteration made by TENANT with the TENANT to bear the costs thereof, which sum shall be
paid immediately upon demand and shall be regarded as additional rent: or the LANDLORD may
allow the addition or alteration to remain. in which event said addition or alteration shall become
the property of the LANDLORD. ||
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6) ASSIGNMENT: The TENANT shall not assign or transfer this lease, nor sublet the premises
or any part thereof without the written consent of the LANDLORD. This includes any sublet,
assignment, transfer, occupancy by any person not/on this lease, or rental through any service,
including Airbnb, Craiglist, VRBO and other. Any assignment, transfer, occupancy by a person
not on this lease or subletting, whether voluntary or involuntary or by cooperation of law, shall be
void; and if such unlawful assignment, transfer, | occupancy or subletting is attempted, the
LANDLORD may, at its option cancel and terminate this lease, whereupon the TENANT shall be
liable for the balance of the rental due hereunder. ny TENANT who violates this provision of
the lease will be liable for one month’s rent as an administrative fee for each violation, which
shall be paid immediately upon demand and shall be regarded as additional rent.
7) MAINTENANCE OF PREMISES: TENANT agrees to maintain the demised premises in a
good and clean condition and in a state of good repair at all times, and shall use and maintain all
mechanical equipment, including kitchen appliances, plumbing fixtures and air conditioning
equipment strictly in accordance with the suggestions and regulations that may from time to
time be promulgated by the LANDLORD. Tenant shall not smoke or vape inside the building.
This building is a DRUG-FREE environment. ENANT shall be responsible for all repairs
and any damage occasioned to the demised premises and the common areas or any of said
mechanical installations by the abuse or neglect of NANT or the failure of TENANT to comply
with such suggestions or requirements. TENANT rees not to tamper with any of the wiring or
plumbing in the premises. TENANT shall keep the entrances of the demised premises in a
state of good repair, clean and free of debris, and shall not place anything upon the exterior ofthe
premises or the entrances to the same, nor shall the TENANT hang anything from the windows.
Upon the termination of this lease, the TENAN shall return the premises and all personal
property demised to the LANDLORD in the s e condition as of the date of taking or
possession. The TENANT shall not cause or pe! it any waste, misuse or neglect in the use of
electricity or water. If TENANT fails or refuses to carry out the provisions in this
paragraph, the LANDLORD may enter the demised premises to carry out said provisions in this
lease, and upon completion of said performance, the TENANT to bear the costs thereof, which
sum shall be paid immediately upon demand and s! all be regarded as additional rent.
8) SERVICES OF LANDLORD: It is expressly greed that if the operation of the elevators,
the furnishing of heat and air conditioning or ny other service, shall cease by reason of
accident, strike, repairs, cleaning out boilers, alt ations or improvements to be made or done
to any part of the apparatus or appurtenances belonging thereto, or for any cause beyond the
control of the LANDLORD, the obligations of the TENANT under the terms of this lease shall
not be affected thereby, nor shal! any claim accrue|to the TENANT by reason thereof.
9) HOUSE RULES: Attached hereto and made parts hereof are the LANDLORD'S House Rules
and Regulations. In the event there be any conflict between the provisions thereof and the terms
and conditions of this lease, the specific House Rules and Regulations will apply. LANDLORD
may change said House Rules at any time and TENANT shall be bound thereby, fifteen
(15) days after said changes have been posted.
10) NOTICE: Any notices from us to you shall bg deemed delivered when deposited at the post
office. to your apartment. postage prepaid, regular|or certified mail. personally handed to you or
anyone in your apartment or left at your apartment by posting or any other form. Any notice from
you to us shall be deemed delivered when deposited at the post office, addressed to our office.
postage prepaid, certified mail. return receipt requested.
Tnitiat EG ‘{ tat
11) SUBORDINATION: This lease is hereby expressly made subject and subordinate to all
mortgages and leases upon the real property placed|by the LANDLORD, and to any renewals,
modifications, consolidations, replacements and extensions thereof; and the TENANT agrees that
such subordination is and shall remain self-operating without the execution by the TENANT of
any instrument other than the execution of this lease. In the event a written instrument is
required of the TENANT to effectuate further the urposes of this paragraph, the TENANT
does hereby constitute and appoint the LANDLORD irrevocably, as the TENANT'S
attorney-in-fact to execute any Certificate(s) for or n behalf of the TENANT.
12) LANDLORD’S OPTION: Tenant(s) irrevocably give(s) an option to Landlord to terminate this
lease at Landlord’s discretion for the purposes of remodeling or renovating the subject property.
Landlord may exercise this option by giving 120 days|notice to Tenant(s).
13) DEFAULTS: In the event the TENANT shall (i) vacate or abandon the demised premises at
a time when rent is due and unpaid, (ii) fail to pay rent or any other sums as herein provided, (iii)
breach any of the provisions, stipulations, and covenants of this lease, or (iv) file bankruptcy,
become insolvent, make an assignment for the benefit of creditors or fail to exist in good standing
in Florida, the TENANT'S right of possession of the demised premises shall automatically
terminate upon the occurrence of any such event (without the need for notice of any kind from
Landlord) and the retention of possession thereafter by the TENANT shall constitute an unlawful
possession of the demised premises rendering the NANT a tenant at sufferance. In such
event, LANDLORD may elect to declare the entire rent for the balance of the term, or any
part hereof, due and payable forthwith and may proceed to collect the same, or LANDLORD
may, in its sole discretion, take possession of the premises and rent the same for the account of
the TENANT. The LANDLORD shall have lien for rent, as provided under Florida statutes, upon
all of the property of the TENANT brought upon the demised premises and the TENANT shall
be obligated and liable to the LANDLORD for all court costs and reasonable attorney's fees
incurred by the LANDLORD in the enforcement of|this lease; in any respect and the provisions
hereof, including reasonable attorney's fees at any appeal level. In addition to the foregoing,
the LANDLORD shall have the right to rely upon) the provisions of this lease relating to the
Security Deposit. The subject landlord lien shall e enforceable by temporary injunction or
alternatively by writ of distress; however, at|no time shall a bond be required of
LANDLORD.
14) TERMINATION: Upon the expiration or any other termination of the term of this lease, the
TENANT shall forthwith and immediately quit the demised premises and surrender to the
LANDLORD the demised premises in good order and condition, including return of all keys.
However, the TENANT'S obligation to observe or perform his covenants shall survive the
expiration or any other termination of the term of this lease.
15) RENEWAL: This agreement shall automatically terminate as of the expiration date set forth
above, without notice from Lessor. If any monies aré due at time of termination of this lease, and
a new lease is signed. it is hereby agreed that all onies due shall be due to owner as rent or
additional rent, and will be collected as same.
teat Qo tes: —
16) GENERAL COVENANTS: |
|
(a) The sidewalks, entry, passages, hallways, elevators, doors and stairways shall
not be obstructed by the TENANT, nor used by TENANT for any other purpose
than ingress/egress to and from his/her respective apartment.
(b) When radios and televisions are turned jon by TENANT, the volume shall be
kept low and in a manner not to disturb the TENANT'S neighbors; and TENANT
shall not permit any disturbance, noise, or annoyance whatsoever detrimental to the
premises or to the comfort of the other TENANTS of said premises.
|
(c) No sweepings, rubbish, rags or other substances shall be thrown in the toilet
bowls, and any damages thereto or to the plumbing system caused thereby shall be
paid by the TENANT.
(d) The leased premises shall be kept by
r ¢ TENANT in a sanitary condition;
neither clothing, curtains, rugs nor other articles shall be shaken or cleaned in any
of the halls, or from any of the window, doors or landings, nor shall anything be
placed or thrown outside or on the windows, the window sills, walkways and
balconies except balcony furniture. |
(e) All outdoor balcony furniture is to be kept neat, orderly and in good condition
and no screen or any other enclosures shall be placed on balconies and terraces.
Under no circumstances whatsoever shall ENANT or his agents have access to
the roof of the building of which the demised premises is a part of for any other
reason. |
(f) PETS: NO PETS MAY BE KEPT IN THE APARTMENT OR THE PREMISES
WITHOUT LANDLORD'S PRIOR WRITTEN CONSENT, AND UNLESS
RESIDENT HAS EXECUTED A PET AGREEMENT AND PAID ALL PET
FEES AND PET DEPOSITS. RESIDENT AGREES TO PAY TO THE
LANDLORD A PET DEPOSIT OF $500.00 PER PET. THE PET DEPOSIT IS IN
ADDITION TO THE APARTMENT SECURITY DEPOSIT AND A MONTHLY
PET FEE OF $35 PER PET. THE PET FEE AND PET DEPOSIT(S) MUST BE
PAID PRIOR TO THE PET LIVING IN THE APARTMENT. THE PET FEE/PET
DEPOSITS WILL BE CONSIDERED AS RENT AND COLLECTED RENT.
(g) The TENANT shall not, without the Iritten consent of the LANDLORD, in
any way change or add any additional lock to the locks as constituted when the
TENANT takes possession of the leased premises.
(h) Waterbeds or airbeds shall not be placed in the apartment by the TENANT.
(i) Refrigerator water filters: in all the cases a tee of $50.00 will be deduct from
tenants security deposit at the end of tenan¢y.
wwe ; iihat
17) PEST INFESTATIONS: Rental units have been maintained and are pest free. In the event
resident finds, at time of possession, any type of pest in the unit, including but not limited to bed
bugs, ants, cockroaches, fleas, weevils or others pest infestations, resident must notify the landlord
immediately. Resident’s failure to notify landlord or landlord's representatives within 24 hours of
possession of any type of pest, including bed bugs, ants, cockroaches, fleas, weevils or others pest
infestations will be deemed resident’s acknowledgement that apartment was free from any pest
infestation, when possession was given to the resident. Landlord will not be responsible for any
pest infestations, including bed bugs, ants, cockroaches, fleas, weevils or others pest infestations
caused by the resident. It is resident’s responsibility to immediately address said pest problem
Any pest extermination, including the eradication of bed bugs, ants, cockroaches, fleas, weevils
or others pest infestations after 24 hours of possession, will be at resident’s expense. In the event
resident fails to address a bed bug or other pest infestation problem, the landlord may take
measures to eradicate the pest at the resident’s expense. Said pest eradication costs will be deemed
additional rent and collected as same.
18) FIRE SAFETY SPRINKLERS: Touching or tampering with the fire safety sprinklers in the
building, hallways, apartment, or anywhere on the premises is strictly prohibited. The sprinklers
if touched or tampered with, will cause severe flooding resulting in significant property damage.
If resident’s negligence causes said damages, resident will be held liable for all costs associated
with the repairs of same. This includes activation of fire sprinklers by smoke caused by TENANT.
Property damage will be deemed additional rent and|collected as same.
19) FIRE ALARM/SMOKE DETECTORS: The use of fogger machines and/or any other device
that may cause the building’s fire alarms to falsely sound are prohibited. Resident agrees to pay a
fine of $503.50 and all costs associated with a false fire alarm citation given to the landlord by
fire officials as a result of resident, resident’s guests|or invitee’s actions, as additional rent.
20) SWIMMING POOL and GYM: A swimming pool and gym will be provided by the
LANDLORD. The TENANT shall have access said swimming pool and gym at TENANT'S own
risk must abide by other rules and regulations that will be prescribed or required by LANDLORD
in connection with the use of said swimming pool and gym. The LANDLORD specifically
reserves the right to determine when and during what hours the swimming pool and gym may be
used and to PROHIBIT its use with respect to any guests, relatives or invitees of the TENANT
and otherwise promulgate general rules and regulations. Children under 18 years old will not
be able to enter in the fitness center. Children under 16 years old must be supervised by and
adult in the swimming pool.
21) ENTIRE AGREEMENT: This lease contains the entire agreement between the parties and
any agreement hereafter made that changes, modifies or dissolves the Lease shall be ineffective
and invalid unless the same is in writing and executed by both parties hereto. No agreements
to accept a surrender of the demised premises, unle: s in writing and signed by the LANDLORD
shall be valid. This lease shall be governed by the laws of the State of Florida. Venue for any
matter under this lease shall be Miami-Dade County. Florida.
:
22) If a court of competent jurisdiction shall adjud, to invalidate or rule unconscionable any
clause sentence, paragraph or any part of this leas) such judgment or decree shall not effect,
impair invalidate or nullify the reminder of this le: age, but the effect thereof shall be confined to
the clause. sentence, paragraph or part of this lease go adjudged be invalid or unconscionable
1 EQ:
23) Any TENANT shall subject to eviction whet Landlord's or its management reasonably
determines that the TENANT poses an imminent threat or danger to other tenants or to Landlord's
or its management's employees, or otherwise constitutes a nuisance to residents or employees of
such entities. Landlord or its management will provide said TENANT with fourteen (14) days
advance written notice notifying them the date which dwelling must be vacated. Landlord or its
management will return any unused rents that were paid in advance, subject to the lease terms
governing security deposits and the default provisions of this lease.
24) HOLDOVER: In the event Tenant remains in ssession of the Premises after the expiration
of the Term, TENANT shall be deemed to be a holdover tenant, and TENANT agrees to pay
“double rent” (200% percent of the monthly installment of Rent in effect during the last month of
the expired term).
25) If Tenant is default under this lease, and Landlord takes any action to enforce its terms,
whether suit be brought or not, Landlord shall recaver from Tenant, upon demand, all costs and
fees incurred by Landlord including, but not necessarily limited to, a $750.00 administrative fee
which includes preparation of and service of three day notice, seven day notice, notice of
termination, if and as applicable, Court filing fees, service of process fees, processing of Court
default package including Writ of Possession and any charges for sheriff expedited fees shall be
an additional charge (including rush execution of Writ of Possession). Any attorney’s fees
incurred by Landlord beyond those described abov: ' Tenant also agrees to pay. All fees described
in this paragraph shall be deemed Additional Rent.
26) We shall not be liable for any damage, loss or injury to persons or property occurring within
your apartment or upon the premises whether due to our action or inactions or from any other
cause whatsoever. We make no representation of any kind to protect you or anyone else, your
property or anyone else's property from the negligent or criminal acts of others. You are
responsible for all liability insurance coverage on your apartment and, with respect to your
family, licensees or invitees, and agree to save and hold us harmless and indemnify us from any
liability. WE STRONGLY RECOMMEND THAT YOU SECURE YOUR OWN INSURANCE
TO PROTECT YOURSELF FROM ALL SUCH ‘CURRENCES. Landlord is not responsible
for any damage that may result from any acts of G
27) WAIVER OF TRIAL BY JURY: The parties hereto specifically agree to waive trial by jury
in any action, proceeding or counterclaim brought by either of the parties hereto against the
other pertaining to any matter whatsoever arising out of or in any way connected with this lease
or tenant’s use of or occupancy of said premises including any claim for personal injury or
property damage.
‘| wt EQ pstiat
BY SIGNING TH R AL AGREEMENT, THE TENANT AGRI THAT UPON SURRENDER
OR ABANDONME . AS DEFINED BY THE FLORIDA STATUTES, THE LANDLORD SHALI
NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE ’ T NANT'S
PERSONAL PROPERTY
TENANT(S): LANDLORD:
= ance
me a BY:
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CASE NO.: 231STCV25326
[TENTATIVE] ORDER RE:
DEMURRER TO COMPLAINT
Date: July 30, 2024
Time: 8:30 a.m.
Dept. 56
MOVING PARTY: Defendant Carey Hellman dba Hellman Associates (Hellman)
RESPONDING PARTY: Plaintiffs
The Court has considered the moving, opposition and reply papers.
BACKGROUND
This action was filed on October 17, 2023 and arises out of construction work performed by Defendant Hellman on Plaintiffs duplex (the Project).
The proposal for the Project was presented by Hellman to Plaintiffs on December 10, 2022. (Complaint, para. 6.)
Hellman performed work on the Project from January 6 to April, 2023.
(Complaint, para. 12.)
Plaintiffs allege that After some of [the allegedly deficient work] came to light, [Plaintiffs] learned that Hellmans contractors license with the Contractors State License Board (CSLB) was inactive or had lapsed.
They further discovered that some of the subcontractors Hellman hired for the work were also not licensed.
(Complaint, para. 16.)
The Complaint alleges causes of action for Breach of Implied-In-Fact Contract; 2) Negligence; 3) Breach of Implied Warranty; 4) Disgorgement Per Bus. & Prof. Code (B&PC) §7031; 5) Unfair Business Practices Per B&PC § 17200,
et seq.
; and 6) Fraud.
All of these causes of action rely, among other things, on Plaintiffs allegation that Hellman was an unlicensed contractor at the time he performed work on the Project.
On December 22, 2023, Defendant Hellman filed his demurrer to the Fourth, Fifth and Sixth Causes of Action of the Complaint.
REQUEST FOR JUDICIAL NOTICE
Defendants Request for Judicial Notice of a copy of a Contractors License naming Hellman and dated January 1982 is DENIED.
This is not an official record of the status of Hellmans license at the time of his work on the Project.
The Court does, however, accept the Declaration of Christopher L. Mass, Esq. in Support of Opposition to Demurrer (Mass Decl.), which provides the foundation for the record of the status of Hellmans contractors license since November 1, 2009.
This document evidences that Defendants license was not active during the period of time that Defendant was working on the Project.
DISCUSSION
Legal Standard
Legal Standard for Demurrer
[A] demurrer tests the legal sufficiency of the allegations in a complaint. (
Lewis v. Safeway, Inc.
(2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See
Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (
Aubry v. Tri-City Hosp. Dist.
(1992) 2 Cal.4th 962, 967.)
Analysis for Demurrer
Fourth Cause of Action
Defendant alleges that Plaintiffs Fifth Cause of Action for Disgorgement is not a valid cause of action because it is based on the allegation that Defendant was not licensed while working on the Project, whereas Defendant possessed a contractors license during the entire construction project.
Defendants purported evidence of his initial licensure in 1983 does not, however, support his contention that he was actively licensed when he worked on the Project.
[1]
The evidence supplied by the Mass Declaration shows that Defendant was not actively licensed during his work on the Project.
Defendants Demurrer to the Fourth Cause of Action of the Complaint is therefore OVERRULED.
Fifth Cause of Action
Defendants Demurrer to the Fifth Cause of Action for violation of the B&PC Section 17200 for Unfair Business Practices depends upon his position that he was not in violation of the CSLB rules for contractor licensing at the time he performed work on the Project.
As indicated above, the Court does not accept Defendants position that he was licensed throughout his work on the Project.
Even if he were so licensed, which apparently he was not, the allegation that his subcontractors were also not licensed would provide all necessary support for an Unfair Business Practices claim. (Complaint, para. 16.)
Defendants Demurrer to the Fifth Cause of Action of the Complaint is therefore OVERRULED.
Sixth Cause of Action
Defendants Demurrer to the Sixth Cause of Action for Fraud is also based upon the premise that Defendant was properly licensed throughout the time he worked on the Project.
Defendant has not established that this is the case and, for that reason, the Demurrer to the Sixth Cause of Action is OVERRULED.
Moving party is ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.
If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 30th day of July 2024
Hon. Holly J. Fujie
Judge of the Superior Court
[1]
Although the Demurrer makes a reference to the one year statute of limitations for claims under B&PC Section 7031, Defendant worked on the Project from January through April of 2023 and this action was filed on October 17, 2023 well within any one year statute of limitations.
Ruling
YAEL MAGUIRE ET AL VS. EASTWOOD DEVELOPMENT INC. ET AL
Jul 23, 2024 |
CGC23607922
Real Property/Housing Court Law and Motion Calendar for July 23, 2024 line 3. DEFENDANT EASTWOOD DEVELOPMENT INC., LUCAS EASTWOOD, 4028 25TH STREET, LLC DEMURRER TO 1ST AMENDED COMPLAINT is continued to August 23, 2024 on Court's own motion. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.
Ruling
Ford vs GreenHorn Golf, LLC, a California Limited Liability Company
Jul 26, 2024 |
23CV47102
23CV47102
PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Plaintiff’s motion for preliminary injunction is on calendar for July 26, 2024. Defendant
has requested a continuance of thirty days to obtain and analyze the relevant Parcel
Map to determine if Plaintiff’s claims in the Reply are correct. The court finds there is
good cause for Defendant’s request and grants the same. Accordingly, the matter is
continued to August 30, 2024, at 9:00 am in Department 2.
PG&E v DKM, LLC
Ruling
ONE STEUART LANE 603 LLC VS. BERNARDO MENDIA ALCARAZ ET AL
Jul 26, 2024 |
CUD24674790
Real Property/Housing Court Law and Motion Calendar for July 26, 2024 line 5. PLAINTIFF ONE STEUART LANE 603 LLC MOTION FOR TERMINATING SANCTIONS AND FOR MONETARY SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES DENIED. Opposition filed. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.
Ruling
DAVID ODAY, ET AL. VS 118 WADSWORTH AVENUE HOMEOWNERS ASSOCIATION, ET AL.
Jul 29, 2024 |
23STCV24766
Case Number:
23STCV24766
Hearing Date:
July 29, 2024
Dept:
47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE:
July 29, 2024
TRIAL DATE:
NOT SET
CASE:
David Oday, et al. v. 118 Wadsworth Avenue Homeowners Association, et al.
CASE NO.:
23STCV24766
MOTION TO DISSOLVE PRELIMINARY INJUNCTION
MOVING PARTY
: Defendant 118 Wadsworth Avenue Homeowners Association
RESPONDING PARTY(S)
: Plaintiffs David Oday and Lakota Patrick Ford
CASE HISTORY
:
·
10/11/23: Complaint filed.
·
01/10/24: First Amended Complaint filed.
·
03/01/24: Cross-Complaint filed.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is a breach of contract and habitability defect action. Plaintiffs allege that Defendants refused to replace the roof of Plaintiffs condominium, causing extensive water damage and mold throughout the unit. Plaintiffs allege that Defendants improperly issued special assessments in violation of the operative covenants, conditions, and restrictions on the property, and retaliated against Plaintiffs for raising these issues.
Defendant 118 Wadsworth Avenue Homeowners Association moves to dissolve the preliminary injunction entered on February 22, 2024 because of Plaintiffs failure to post the bond required.
TENTATIVE RULING:
Defendants Motion to Dissolve Preliminary Injunction is DENIED, as Plaintiff David Oday has served and filed an agreement authorizing the deposit to be applied to enforce the liability of the principal, pursuant to Code of Civil Procedure section 995.710(c).
DISCUSSION:
Defendant 118 Wadsworth Avenue Homeowners Association moves to dissolve the preliminary injunction entered on February 22, 2024 because of Plaintiffs failure to post the bond required.
Legal Standard
Code of Civil Procedure section 533 states:
In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.
(Code Civ. Proc. § 533.) Modification of a preliminary injunction rests in the sound discretion of the trial court upon a consideration of all the particular circumstances of each individual case. (
Union Interchange, Inc. v. Savage
(1959) 52 Cal.2d 601, 606.) The party seeking modification has the burden of proving that the request is justified. (See
Loeffler v. Medina
(2009) 174 Cal.App.4th 1495, 1504.)
Analysis
Defendant 118 Wadsworth Avenue Homeowners Association moves to dissolve the preliminary injunction entered on February 22, 2024 on the grounds that Plaintiffs failed to post the undertaking of $70,416.09 ordered by the Court. (See February 22, 2024 Minute Order.)
Plaintiffs, in opposition, state that payment in the amount specified by the Courts order was deposited with the Court on June 26, 2024, with notice given to Defendant the next day. (Declaration of Scott J. Kalter ISO Opp. Exhs. 1-2.) In reply, Defendant contends that Plaintiffs deposit of the funds to the Court is effective as a posting of a bond under Code of Civil Procedure section 995.710, but only if the deposit is accompanied by an agreement executed by the principal authorizing the officer to collect, sell, or otherwise apply the deposit to enforce the liability of the principal on the deposit. (Code Civ. Proc. § 995.710(c).) Defendant contends that Plaintiffs have not executed such an agreement, and, therefore, that the injunction should be dissolved.
The Court concurs with Defendant that an authorization to dispose of the funds to satisfy liability is required for Plaintiffs deposit to be considered posting of the bond under section 995.710. In response to the Courts prior tentative ruling, Plaintiff David Patrick Oday has submitted an agreement authorizing the deposit to be applied to enforce the liability of the principal, pursuant to Code of Civil Procedure section 995.710(c). Accordingly, the Court will deny the motion to dissolve the preliminary injunction.
CONCLUSION
:
Accordingly, Defendants Motion to Dissolve Preliminary Injunction is DENIED given that Plaintiff David Patrick Oday has served and filed an agreement authorizing the deposit to be applied to enforce the liability of the principal, pursuant to Code of Civil Procedure section 995.710(c).
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
WILMINGTON TRUST, NATIONAL ASSOCIATION, AS TRUSTEE ON BEHALF OF THE HOLDERS OF GCT COMMERCIAL MORTGAGE TRUST 2021-GCT, COMMER VS MAGUIRE PROPERTIES ? 350 S. FIGUEROA, LLC, ET AL.
Jul 26, 2024 |
23STCV08125
Case Number:
23STCV08125
Hearing Date:
July 26, 2024
Dept:
82
Wilmington Trust, N.A.,
Case No. 23STCV08125
v.
Hearing: July 26, 2024
Location: Stanley Mosk Courthouse
Maguire Properties
Department: 82
350 S. Figueroa, LLC
Judge: Stephen I. Goorvitch
[Tentative] Order Denying Motion for Leave to Intervene
INTRODUCTION
Proposed Intervening Defendant Nonghyup Bank, as Trustee of Meritz Private Real Estate Fund 27, c/o Meritz Alternative Investment Management (Meritz or the Proposed Intervenor) seeks leave to intervene in this action as a defendant.
Meritz moves for mandatory intervention pursuant to Code of Civil Procedure section 387(d)(1)(B), or, in the alternative, permissive intervention pursuant to section 387(d)(2).
Plaintiff Wilmington Trust National Association, as Trustee on behalf of the Holders of GCT Commercial Mortgage Trust 2021-GCT, Commercial Mortgage Passthrough Certificates, Series 2021-GCT (Plaintiff) opposes the motion.
This action arises from the $465 million debt financing of properties known as the Gas Company Tower and World Trade Center Parking Garage located at 555 W. Fifth Street and 350 S. Figueroa Street in Los Angeles, CA (the property).
The $465 million loan facility for the property was split into three tranches: (1) the $350 million senior mortgage loan; (2) a $65 million Mezzanine A loan; and (3) a $50 million
Mezzanine B loan.
Only the senior loan is secured by a deed of trust on the property.
Plaintiff, as assignee of the senior lender, seeks specific performance of the rents, issues, and profits clause of the deed of trust securing the $350 million senior loan for the Property.
A receiver has been appointed to manage the property, collect rents, and market the property for sale.
Meritz, an assignee of a mezzanine lender and potential bidder, now contends that it has a direct interest in the property and the outcome of this action.
The court concludes that Meritzs asserted interest is, at most, indirect and consequential.
Accordingly, the motion is denied.
BACKGROUND
On or about February 5, 2021, Citi Real Estate Funding Inc. and Morgan Stanley Bank, N.A. (the Original Senior Lenders) originated a $350 million mortgage loan (Senior Loan), which was securitized into a commercial mortgage-backed security (CMBS) facility that is currently administered by Plaintiff.
The Senior Loan is secured by a deed of trust that encumbers the Property.
(Allegrette Decl. ¶¶ 2-5, Exh. 1.)
Simultaneously with origination of the Senior Loan, Citigroup Global Markets Realty Corp. and Morgan Stanley Mortgage Capital Holdings LLC (Original Mezz A Lenders) originated a $65 million Mezzanine A loan, as evidenced by, among other documents, a Mezzanine A Loan Agreement (Mezz A Loan).
Meritz submits evidence that it acquired ownership of the Mezz A Loan on or about March 4, 2021, having purchased the loan from the Original Mezz A Lenders.
(Id. ¶¶ 3, 9, Exh. 5-1 and 5-2.)
According to Meritzs principal and co-founder, Russ Allegrette, the Mezz A Loan is secured by a pledge of 100% membership interests in the owners of the Property, Defendants Maguire Properties 350 S. Figueroa, LLC, and Maguire Properties 555 W. Fifth, LLC.
(Id. ¶¶ 3, 9; see also Suppl. Allegrette Decl. ¶ 2.)
As stated succinctly by Plaintiff, Meritz holds only a pledge of membership interests in the Defendant property owners.
(Amended and Replacement Memorandum in Opposition to Application to Intervene [Oppo.] 10:28.)
[1]
On April 12, 2023, Plaintiff filed its verified complaint seeking specific performance of the terms and provisions of the deed of trust and appointment of a receiver.
On April 19, 2023, the court (Beckloff, J.) appointed Gregg Williams as receiver (the receiver) to manage and market the property, collect rents, and review and evaluate offers from third parties with respect to the sale of the property.
On May 24, 2023, the court entered an order confirming the appointment.
Meritz has expressed interest in bidding on the property and contacted the receiver directly in March 2024 seeking a tour of the Property.
(Receiver Decl. ¶¶ 3-6.)
In March 2024, Meritz, as a non-party, filed an opposition to the receivers
ex parte
application for authorization to enter a lease with the City of Los Angeles for certain premises in the property.
The receiver later withdrew that motion.
On May 3, 2024, the receiver filed an
ex parte
application for approval of an exclusive listing agreement in order to sell the property.
Meritz filed an opposition.
The court granted the ex parte application.
(See courts minute order, dated May 13, 2024.)
LEGAL STANDARD
A.
Mandatory Intervention
Under Code of Civil Procedure section 387(d)(1)(B), a non-party may intervene as a matter of right if that non-party claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties.
The moving party must make a timely application and submit a proposed pleading.
(See Code Civ. Proc. § 387(c) and (d)(1).) Section 387 should be liberally construed in favor of intervention.
(
Simpson Redwood Co. v. State of California
(1987) 196 Cal.App.3d 1192, 1200.)
B.
Permissive Intervention
Under Code of Civil Procedure section 387, the trial court has discretion to permit a nonparty to intervene where the following factors are met: (1) the proper procedures have been followed; (2) the nonparty has a direct and immediate interest in the action; (3) the intervention will not enlarge the issues in the litigation; and (4) the reasons for the intervention outweigh any opposition by the parties presently in the action.
(
Siena Court Homeowners Ass'n, supra,
164 Cal.App.4th at 1428.)
DISCUSSION
A.
Mandatory Intervention
1.
Meritz does not demonstrate a sufficient interest in the transaction
For mandatory intervention, Meritz must show that the interest relating to the property or
transaction which is the subject of the action & is a significantly protectable interest.
(
Siena Court Homeowners Assn v. Green Valley Corp.
(2008) 164 Cal.App.4th 1416, 1423-1424.)
To demonstrate a significant protectable interest, an applicant must establish that the interest is protectable under some law and that there is a relationship between the legally protected interest and the claims at issue.
(
Citizens for Balanced Use v. Mont. Wilderness Assn
(9th Cir. 2011) 647 F.3d 893, 897.)
Meritz argues that it should be granted mandatory intervention given [its] position as the mezzanine lender, its interests in the Property, the subject matter of this action, and the outcome of this action.
(Application to Intervene (Appl.) 13:7-9.)
The court disagrees.
Meritz does not claim an interest in the property that is the subject of this action.
The complaint includes a single cause of action for specific performance of the deed of trust that secures the Property.
(Compl. ¶¶ 16-24.)
Only the Senior Loan is secured by the deed of trust on the Property.
The Mezz A Loan, which was assigned to Meritz, does not hold a security interest in the Property.
(See Allegrette Decl. ¶¶ 2-11, Exh. 1-5.)
This is clear from the Intercreditor Agreement (ICA), in which Meritzs predecessor acknowledged that the Mezz A Loan does not constitute or impose & a lien or encumbrance upon, or security interest in any portion of the Premises or any other collateral securing the Senior Loan or any assets of Borrower&.
(
Id
. Exh. 6 at p. 27, ¶ 2(a).)
Nor does Meritz claim an interest in the transaction that is the subject of this action.
In the complaint, Plaintiff alleges that the borrower has defaulted on the Senior Loan by failing to make payments due and that Plaintiff is entitled to specific performance of terms and conditions of the deed of trust, which encumbers the Property.
(Compl. ¶¶ 16-24.)
The claim does not involve any default on the Mezz A Loan or any contractual dispute related to the Mezz A Loan, the ICA, or the interrelationship between the senior and mezzanine lenders.
(See generally
California Physicians Service v. Superior Court
(1980) 102 Cal.App.3d 91, 96 [health insurers contract claim was not the transaction at issue in the subscribers tort action].)
Meritz suggests that it has an interest in the property or transaction at issue in the complaint because Mezz A Borrower pledged one hundred percent (100%) of its membership interests in the Defendants to Original Mezz A Lenders to secure the Mezz A Loan.
(Appl. 5:19-20.)
As phrased in the reply, Meritz contends that
if
it were to exercise remedies as contemplated under the Pledge Agreement, Meritz would
own and control the Receivership Defendants
.
(Reply 3:19-21.)
This argument is not persuasive.
If Meritz exercised its purported remedies, it would own and control the receivership defendants and therefore would not need to intervene.
Rather, Meritz seeks to intervene on its own behalf as a mezzanine lender.
Further, Meritz concedes that there is an event of default under the Senior Loan and that Defendants would not have access to such sums to make payments to Mezz A Lender.
(Appl. 4:21-23.)
Meritz does not present any evidence suggesting that, if it exercised rights to assume membership interests in the Defendants, it would have any greater interest in the Property than it does now as a mezzanine lender.
Under such circumstances, Meritz does not show that a lien on membership interests of the Defendants confers a protectable interest in the Property or in the transaction at issue in the complaint.
(See Corp. Code § 17701.04(a) [A limited liability company is an entity distinct from its members.]; § 17703.04(a) [debts, obligations, and liabilities of an LLC do not become the debts, obligations, or other liabilities of a member or manager solely by reason of the member acting as a member or manager].)
Citing various provisions of the loan documents, Meritz contends that the action could
indirectly
impact its interests as a mezzanine lender.
(See Appl. 4-10.)
As an example, Meritz states that the Senior Loan Agreement also makes extensive reference to the existence of the Mezzanine A Loan and Mezzanine B Loan, including: (i) stating in Section 1.1 that the lien and security interests created by each Mezzanine Loan Agreement, the Other Mezzanine Loan Documents and any loan documents entered into with respect to a Replacement Mezzanine Loan are Permitted Encumbrances on the Property.
(Appl. 4:3-7.)
Meritz cites section 8.5 of the Senior Loan Agreement, which pertains to the remittance of debt service payments under the Mezz A Loan from Property cash flow.
(Appl. 4:12-16.)
As Meritz concedes, these provisions are conditioned so long as no Event of Default had occurred.
(Appl. 4:10.)
Later, Meritz cites to provisions of the ICA that, according to Meritz, authorize payments to mezzanine lenders following repayment of the Senior Loan.
(Appl. 7:23.)
Since it is undisputed that an event of default has occurred and the Senior Loan has not been repaid, Meritzs interest in excess proceeds is indirect and consequential.
(See
Continental Vinyl Products Corp. v. Mead Corp.
(1972) 27 Cal.App.3d 543, 550 [a
n unsecured creditor of a defendant who will be rendered unable to pay the debt if he loses a lawsuit is held to have only a consequential interest not justifying intervention in the litigation]; see also Id. at
553 [a shareholder has a consequential but not direct interest in the outcome of litigation involving the corporation].)
Meritz also asserts that the ICA reflects additional agreements between the Original Senior Lender and the Mezzanine Lenders in respect of matters such as removal and replacement of the property manager for the Properties, budget approval and requests for disbursement of sums held in reserve.
(Appl. 7:25-28, citing Allegrette Decl. ¶ 14.)
Relatedly, Meritz asserts that section 15(a) of the ICA requires written consent of the mezzanine lenders in certain circumstances.
(Appl. 8.)
Meritzs briefs and the Allegrette declarations do not analyze the specific contract terms upon which Meritz relies or explain how they are relevant to this action, including the courts appointment of a receiver.
Accordingly, the arguments are forfeited for purposes of this application.
(
Nelson v. Avondale HOA
(2009) 172 Cal.App.4th 857, 862-863 [When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived].)
Moreover, in its proposed answer, Meritz does not allege any defense based on breach of the ICA or other loan document.
This action concerns Defendants default and the specific performance of the deed of trust, and Meritz does not show that any contract dispute related to the ICA is directly at issue in this action.
The court has considered Meritzs remaining contentions, including about the complexity of the capital stack utilized in this transaction by the Original Senior Lenders.
(See Appl. 2:7-8.) None convinces the court that Meritz claims an interest relating to the property or transaction that is the subject of the action.
(Code Civ. Proc. § 387(d)(1)(B).)
Accordingly, Meritz is not entitled to mandatory intervention.
2.
Meritzs interests are adequately represented
The court also concludes that Meritzs interests as a mezzanine lender, including its interests in any excess proceeds from the Property, are adequately represented by the courts appointment of a receiver and the courts review and approval of any offer to purchase the property.
A receiver is an agent and officer of the court, and is under the control and supervision of the court&. The receiver is also a fiduciary who must act for the benefit of all parties interested in the property.
(
City of Chula Vista v.
Gutierrez
(2012) 207 Cal.App.4th 681, 685.)
Meritz does not argue or present evidence that the Receiver has acted in bad faith or has taken any actions inconsistent with an intention to maximize the value of the Property.
Nor does Meritz develop any argument that Plaintiff, acting for the Senior Lender, has acted in bad faith or taken actions inconsistent with maximizing the value of the Property.
(See
Continental Vinyl Products Corp. v. Mead Corp.
(1972) 27 Cal.App.3d 543, 553 [denying major shareholders request to intervene because there was no allegation of bad faith on the part of the trustee or implication that he intends to abandon prosecution of the litigation to the fullest extent possible].)
Finally, the receiver has given Meritz notice of the
ex parte
applications he has filed in this action; Meritz does not claim a lack of notice of any proceeding; and the court has considered Meritzs oppositions to applications filed by the Receiver.
(See Receivers Statement 2; see also Cal. Rules of Court, Rule 3.1184(c) [notice for receivers final report].)
Therefore, Meritzs motion for mandatory intervention is denied.
B.
Permissive Intervention
The court denies permissive intervention for several reasons.
As discussed, Meritz does not have a direct and immediate interest in this action.
Moreover, intervention will greatly enlarge the issues in the litigation.
Finally, the purported reasons for intervention do not outweigh the opposing parties concerns.
Indeed, the court has genuine concerns that Meritz is pursuing intervention merely to obtain a strategic advantage in purchasing the building.
Previously, Meritz opposed the receivers efforts to retain a broker to market and sell the property.
Some of Meritzs arguments were factually incorrect.
For example:
Counsel for the Bank argued that the listing agreement favors a sale to the City of Los Angeles. To the contrary, the listing agreement caps the commission for a sale to the City of Los Angeles and provides the same or higher commissions for a sale to purchasers other than the City or County of Los Angeles. Regardless, the court will review and approve any sale, which will include a review of all credible offers, so the listing agent cannot sell the property to the City of Los Angeles if there is a better offer.
(Courts Minute Order, dated May 13, 2024, at 2.)
More important, Meritz had no valid reason to oppose retention of a real estate broker to list the property for sale.
(See
ibid
.)
Meritzs opposition appears to have been nothing more than an attempt to delay the real estate listing to a time when there would be fewer prospective buyers and more comparable buildings, which would benefit Meritzs efforts to purchase the building:
At the hearing, counsel for Nonghyup expressed concern that the Receiver is seeking appointment of a receiver on an ex parte basis and seeks to list the property in mid-June. The court finds no basis to delay appointment of a listing agent, as counsel for Nonghyup raises no valid objections to the listing agreement. Nor did counsel raise any concerns that suggest the court would benefit from further briefing. To the contrary, the court finds good cause to handle this matter on an expedited basis: (1) There are identified potential buyers for the Property that may not be available three months from now, including both the City and County of Los Angeles; (2) Any delay works against the markets perceived value of the Property; (3) Spring is the ideal time to list a commercial real estate investment property in Southern California; and (4) It is prudent to sell the property before the uncertainty of the election. (See Declaration of Jeffrey Bramson, ¶¶ 16-21.) The court also relies on the representation of Gregg Williams that he is aware of four comparable properties in receivership that will be marketed later this year, which may make it difficult to sell the property,
i.e
., based upon the competition, especially given the declining market for office real estate.
(
Ibid
.)
The receiverwho is a neutral party in this disputeraises a legitimate concern that Meritz will use intervention to obstruct any actions by the receiver that are inconsistent with Meritzs interests as a bidder on the property.
Meritz previously did so in attempting to delay the receivers efforts to list the building for sale.
Simply, Meritz has a conflict of interest.
Meritz cannot seek intervention to protect its alleged security interest while seeking to purchase the building.
Such an outcome would permit Meritz to attempt to sabotage any effort to sell the property to a purchaser other than Meritz.
Therefore, the motion for permissive intervention is denied.
CONCLUSION AND ORDER
Based upon the foregoing, the Proposed Intervenors motion is denied.
Counsel for the receiver shall provide notice and file proof of service with the court.
IT IS SO ORDERED.
Dated: July 26, 2024
______________________
Stephen I. Goorvitch
Superior Court Judge
[1]
A $50 million Mezzanine B loan (Mezz B Loan) was also originated as part of the debt facility related to the Property.
In its motion, Meritz has not claimed an interest in the Mezz B Loan.
(See Allegrette Decl. and Suppl. Allegrette Decl. generally.)