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BOWMAN AND BROOKE LLP
Anthony Parascandola (SBN 140217) Electronically FILED by
Michael Chung (SBN 243204) Superior Court of California,
970 West 190th Street, Suite 700 County of Los Angeles
Torrance, CA 90502 7/03/2024 12:36
Phone: (310) 768-3068 David W. Slayton,
Executive Officer/Clerk of Court,
Fax: (310) 719-1019 By A. Ilieva, Deputy Clerk
Attorneys for Plaintiff
SUBWAY REAL ESTATE, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES — SANTA MONICA COURTHOUSE
10
11 SUBWAY REAL ESTATE, LLC., a CASE NO. 245M CYO3S236
Delaware limited liability company,
12 Hon.
Plaintiff, Dept.
13
vs.
14 COMPLAINT FOR UNLAWFUL
AMRITA MULTANI, an individual dba DETAINER
15 SUBWAY, SURJIT MULTANI, an
individual dba SUBWAY, and DOES 1
16 through 10, inclusive,
17 Defendants.
18
19 Plaintiff Subway Real Estate, LLC, a Delaware limited liability company (“Plaintiff”),
20 alleges as follows:
21 1 Plaintiff is and at all times herein mentioned was, a Delaware limited liability
22 company, duly organized and existing under the laws of the State of Connecticut. Plaintiff
23 has recorded, filed, and published all statements required by California law.
24 2 Plaintiff alleges that at all times herein mentioned Amrita Multani and Surjit
25 Multani (“Defendants”) is and was doing business in the County of Los Angeles, State of
26 California as a Subway franchisee.
27 3 The true names and capacities, whether individual, corporate, associate, or
28 otherwise, of Defendants Does 1 through 10, inclusive, are unknown to Plaintiff who
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COMPLAINT FOR UNLAWFUL DETAINER
therefore sues said Defendants by such fictitious names. Plaintiff will amend this
Complaint to show the true names and capacities of Defendants after the same have
been ascertained.
4 Plaintiff is informed and believes and thereon alleges that at all times herein
mentioned each Defendant was the agent and employee of each Defendant and was
acting within the scope and authority of such agency and employment.
5 Plaintiff is informed and believes and thereon alleges that Defendant did
agree to perform the acts hereafter described and that Defendant performed and
continued to perform such acts pursuant to the agreement or agreements.
10 6 The real property, possession of which is sought in this action, is situated
11 at 2601 South La Brea Avenue, Unit C, Los Angeles, California 90067 (“Premises").
12 7 On or about September 4, 2012, Plaintiff leased the Premises from
13 Jacko | LLC (“Landlord”) pursuant to a written lease (the "Master Lease"). A true and
14 correct copy of the Master Lease is attached hereto as Exhibit A.
15 8 The Master Lease was subsequently extended to cover the relevant period
16 of this Complaint.
17 9 On or about December 28, 2012, Plaintiff (as Sublessor), on the one hand,
18 and Defendants (Subtenants), on the other hand, executed a written sublease for the
19 Premises (the "Sublease"). A true and correct copy of the Sublease is attached as
20 Exhibit B.
21 10. Paragraph 3 of the Sublease provides that Subtenants agree to sublease
22 the Premises at the rental called for in the Master Lease, including all charges relating to
23 the Premises such as common area charges, maintenance, insurance, tax, and rental
24 escalations.
25 11. Paragraph 4 of the Sublease also provides that Subtenants agree to
26 perform and observe all of the obligations of the Sublessor under the Master Lease and
27 to make all rental payments directly to the Master Landlord in the manner set forth in the
28 Master Lease.
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COMPLAINT FOR UNLAWFUL DETAINER
1 12. The Master Lease provides that the tenant shall pay monthly rent and
additional sums.
13. Defendants entered into possession of the Premises under the sublease
and continues to occupy the Premises.
14. Defendants have failed to pay rent and other charges in the amount of at
least $40,179.04 to the current Landlord of the Premises as required by the Sublease and
Master Lease.
15. On March 19, 2024, Plaintiff, caused to be served upon Defendants a ten-
day written notice to pay or quit (“Ten-Day Notice”) setting forth the nature of Defendants’
10 default and requiring Defendants to cure same or to deliver possession of the Premises
11 within ten (10) days thereafter. The amount stated in the notice for past due rent and
12 other charges was in the amount of $40,179.04. A true and correct copy of the Ten-Day
13 Notice is attached hereto as Exhibit C.
14 16. Defendants were not excused from paying the full amount owed.
15 18. Defendants have not cured the default or vacated the Premises to date.
16 Based on current information and belief, the current outstanding past due rent and other
17 charges owed to Plaintiff by Defendants is approximately $40,179.04, with penalties
18 accruing daily.
19 19. Except as excused by law or the conduct of Defendants, Plaintiff has
20 performed all the terms, covenants, and conditions as required by the Sublease.
21 20. Plaintiff is now entitled to possession of the Premises.
22 21. Defendants continue to be in possession of the Premises without Plaintiff's
23 permission and consent and contrary to the terms of the Master Lease and Sublease.
24 Such detention is willful, intentional, deliberate, and obstinate.
25 22. Damages have accrued and will continue to accrue so long as Defendants
26 remain in possession of the Premises.
27 23. Section 8.1.5 of the Sublease provides that “If Subtenant fails to pay
28 Sublandlord any installment of the Rent or Additional Charges when it becomes due and
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COMPLAINT FOR UNLAWFUL DETAINER
payable and fails to make such payment within ten (10) days after written notice thereof
by Sublandlord to Subtenant” is a default of the Sublease. As noted above, Plaintiff has
served Defendant written notice, providing Defendant the ten (10) day period to cure.
24. Paragraph 6 of the Sublease provides that “The Sublease agrees to pay to
the Sublessor upon demand, as additional rent, any fees, costs or charges, including
attorneys’ fees and legal costs, incurred by the Sublessor in enforcing any of the terms
or provision of this Sublease.”
WHEREFORE, Plaintiff prays for judgment as follows:
1 For forfeiture of the Sublease and immediate possession of the Premises;
10 2 For past due rent of $40,179.04 and other charges, and statutory damages
11 pursuant to CCP Section 1174;
12 For damages at the daily rate according to proof;
13 For reasonable attorneys’ fees incurred herein;
14 For costs of suit incurred herein; and,
15 For such other and further relief as is just and proper.
16 Dated: July 2, 2024 BOWMAN AND BROOKE LLP
17
yf 7 sn
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By: “
19 Anthony J. Parascandola
Michael Chung
20 Attorneys for Plaintiff
SUBWAY REAL ESTATE, LLC
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29902768v1 4
COMPLAINT FOR UNLAWFUL DETAINER
EXHIBIT "A"
SAUS|
— PAN Id
Peenrerrrs
gale
Leave
Beretsanned
AIR COMMERCIAL REAL ESTATE ASSOCIATION
STANDARD RETAIL/MULTI-TENANT LEASE - NET
1 Basic Provisions ("Basic Provisions").
1 Parties: This Lease ("Lease"), dated for reference purposes only September 4, 2012 4
is made by and between Jacko I LLC, a California limited liability company
("Lessor")
and Subway Real Estate, LLC
("Lessee")
(colictively the "Partios*, or naivdually a "Party".
1.2 Premises: That certain portion of the Shopping Center (as defined below), including all improvements therein or to be provided by
Lessor under the terms of this Lease, commonly known by the street address of 2601 S. La Brea Avenue, Unit C
located in the City of Los_Angéles , County of Los Angeles , State of
California , with zip code 90016 , 48 outlined on Exhibit A attached hereto ("Premises")
and generally described as (describe briefly the nature of the Premises): an inline space consisting of 1230 SF as and
where shown as Retail Space 1 on the site plan attached hereto as Exhibit A
In addition to Lessee’s rights to use and occupy the Premises as hereinafter specified, Lessee shall have non-exclusive rights to the Common Areas
(as defined in Paragraph 2.7 below) as hereinafter specified, but shall not have any rights to the roof, exterior walls or utility raceways of the building
containing the Premises ("Building") or to any other buildings in the Shopping Center. The Premises and the Building are situated within the Shopping
Center known as TBD The Premises, the Building,
the Common Areas and all other buildings and improvements within said Shopping Center, together with the land upon which they are located, are
herein collectively referred to as the "Shopping Center." (See also Paragraph 2)
1.3 Term: years and zero months ("Original Term")
commencing see Addendum (‘Commencement Date") and ending see Addendum
(Expiration Date"). (See also Paragraph 3)
14 Early Possession: N/A (‘Early Possession Date"). (See also Paragraphs 3.2 and 3.3)
15 Base Rent: $2,952.00 per month ("Base Rent"), payable on the 1st
day of each month commencing
on the Commencement Date
. (See also Paragraph 4)
1 If this box is checked, there are provisions in this Lease for the Base Rent to be adjusted.
1.6 Percentage Rent Rate: N/A percent ( %) of Gross Sales. Percentage
Rent shall be due and payable in accordance with the provisions of the Percentage Rent Addendum, if any, attached hereto and made a part hereof,
and Paragraph 4 hereof.
17 Lessee’s Share of Common Area Operating Expenses: twenty-one and 10/100ths percent (21.10%)
("Lessee’s Share").
18 Merchants’ Association Annual Dues: $ N/A. year ("Merchants’ Association Dues’).
Lessee shall pay Merchants’ Association Dues and/or become a member of the Merchants’ Association in accordance with the provisions of the
Merchants’ Association Addendum, if any, attached hereto.
1.9 Base Rent and Other Monies Paid Upon Execution:
@ Base Rent: $2, 952.00 for the period of first months rent
(b) Common
Area Operating Expenses: $615.00 for the periodof first months rent
(c) Security Deposit: $3,567.00 (‘Security Deposit"). (See also Paragraph 5)
(a) Merchants’ Association Du 8 for the period
(e) Other: $ for
@ Total Due Upon Execution
of this Lease: $7, 134.00
1.10 Agreed Use: Exclusive right to sell hot and cold submarine style sandwiches.
Landlord shall not lease a space in the center to Jersey Mikes, Quiznos, Togos, Blimpies,
or_any other restaurant who main business is sandwiches.* (See Addendum
Paragraph 1 or additional terms regarding Agreed Use). (See also Paragraph 6)
1.11 Agreed Trade Name: Subway {See also Paragraph 6)
1.12 Insuring Party. Lessor is the “Insuring Party". (See also Paragraph 8)
4 1.13 Real Estate Brokers: (See also Paragraph 15)
Representation: The following real estate brokers (the Brokers") and brokerage relationships exist in this transaction
(check applicable boxes):
Mpatrick Ortiz, NAI Capital represents Lessor exclusively ("Lessor’s Broker");
a represents Lessee exclusively ("Lessee’s Broker"); or
a represents both Lessor and Lessee ("Dual Agency’).
(b) Payment to Brokers: Upon execution and delivery of this Lease by both Parties, Lessor shall pay to the Brokers the
brokerage fee agreed to in a separate written agreement (or if there is no such agreement, the sum of or 5 % of the
total Base Rent) for the brokerage services rendered by the Brokers.
1.14 Guarantor. The obligations of the Lessee under this Lease are to be guaranteed by none
(Guaranto (See also Paragraph 37)
1.15 Attachments. Attached hereto are the following, all of which constitute a part of this Lease:
an addendum consisting of Paragraphs through
0 asite plan marked Exhibit » depicting the Premises;
a site plan marked Exhibit A , depicting the Shopping Center;
\
O acurrent set of Rules and Regulations for the Shopping Center;
C acurent set of the Sign Criteria for the Shopping Center;
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a
* Landlord shall not lease to another space in the building to a marijuana dispensary.
Oa work letter;
a other (specify): Rider to Lease,
Option Rent Addendum, Rent Increase Addendum, Arbitration Addendum
2. Premises.
21 Letting. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Premises, for the term, at the rental, and
upon all of the terms, covenants and conditions set forth in this Lease. Unless otherwise provided herein, any statement of size set forth in this Lease,
or that may have been used in calculating Rent, is an approximation which the Parties agree is reasonable and any payments based thereon are not
‘subject to revision whether or not the actual size is more or less, NOTE: Lessee Is advised to verify the actual size prior to executing this Lease.
22 Condition. Lessor shall deliver the Premises to Lessee broom clean and free of debris on the Commencement Date or the Early
Possession Date, whichever first occurs ("Start Date"), and, so long as the required service contracts described in Paragraph 7.1(b) below are obtained
by Lessee and in effect within 30 days following the Start Date, warrants that the existing electrical, plumbing, fire sprinkler, lighting, heating, ventilating
and air conditioning systems ("HVAC"), loading doors, if any, and all other such elements in the Premises, other than those constructed by Lessee,
shall be in good operating condition on said date and that the structural elements of the roof, bearing walls and foundation of the Premises shall be free
of material defects, and that the Premises do not contain hazardous levels of any mold or fungi defined as toxic under applicable state or federal law. If
a non-compliance with such warranty exists as of the Start Date, or if one of such systems or elements should matfunction or fail within the appropriate
warranty period, Lessor shall, as Lessor's sole obligation with respect to such matter, except as otherwise provided in this Lease, promptly after receipt
of written notice from Lessee setting forth with specificity the nature and extent of such non-compliance, malfunction or failure, rectify same at Lessor’s
expense. The warranty periods shall be as follows: (i) 6 months as to the HVAC systems, and (ji) 30 days as to the remaining systems and other
elements of the Premises. If Lessee does not give Lessor the required notice within the appropriate warranty period, correction of any such
non-compliance, malfunction or failure shall be the obligation of Lessee at Lessee’s sole cost and expense (except for the repairs to the fire sprinkler
systems, roof, foundations, and/or bearing walls).
23 Compliance. Lessor warrants that to the best of its knowledge the improvements on the Premises and the Common Areas comply
with the building codes that were in effect at the time that each such improvement, or portion thereof, was constructed, and also with all applicable laws,
covenants or restrictions of record, regulations, and ordinances in effect on the Start Date ("Applicable Requirements"). Said warranty does not apply
to the use to which Lessee will put the Premises, modifications which may be required by the Americans with Disabilities Act or any similar laws as a
result of Lessee's use (see Paragraph 50), or to any Alterations or Utility Installations (as defined in Paragraph 7.3(a)) made or to be made by Lessee.
NOTE: Lessee is responsible for determining whether or not the Applicable Requirements, and especially the zoning, are appropriate for
Lessee’s intended use, and acknowledges that past uses of the Premises may no longer be allowed. If the Premises do not comply with said
warranty, Lessor shall, except as otherwise provided, promptly after receipt of written notice from Lessee setting forth with specificity the nature and
extent of such non-compliance, rectify the same at Lessor’s expense. If Lessee does not give Lessor written notice of a non-compliance with this
warranty within 6 months following the Start Date, correction of that non-compliance shall be the obligation of Lessee at Lessee’s sole cost and
expense. If the Applicable Requirements are hereafter changed so as to require during the term of this Lease the construction of an addition to or an
alteration of the Premises and/or Building, the remediation of any Hazardous Substance, or ‘the reinforcement or other physical modification of the
Premises. and/or Building ("Capital Expenditure"), Lessor and Lessee shall allocate the cost of such work as follows:
fa) Subject to Paragraph 2.3(c) below, if such Capital Expenditures are required as a result of the specific and unique use of
the Premises by Lessee as compared with uses by tenants in general, Lessee shall be fully responsible for the cost thereof, provided, however that if
such Capital Expenditure is required during the last 2 years of this Lease and the cost thereof exceeds 6 months’ Base Rent, Lessee may instead
terminate this Lease unless Lessor notifies Lessee, in writing, within 10 days after receipt of Lessee’s termination notice that Lessor has elected to pay
the difference between the actual cost thereof and the amount equal to 6 months’ Base Rent. If Lessee elects termination, Lessee shall immediately
cease the use of the Premises which requires such Capital Expenditure and deliver to Lessor written notice specifying a termination date at least 90
days thereafter. Such termination date shall, however, in no event be earlier than the last day that Lessee could legally utilize the Premises without
commencing such Capital Expenditure.
(b) If such Capital Expenditure is not the result of the specific and unique use of the Premises by Lessee (such as,
governmentally mandated seismic modifications), then Lessor shall pay for such Capital Expenditure and Lessee shall only be obligated to pay, each
month during the remainder of the term of this Lease, on the date that on which the Base Rent is due, an amount equal to 144th of the portion of such
costs reasonably attributable to the Premises. Lessee shall pay Interest on the balance but may pi its obligation at any time. If, however, such
Capital Expenditure is required during the last 2 years of this Lease or if Lessor reasonably determines that it is not economically feasible to pay its
share thereof, Lessor shall have the option to terminate this Lease upon 90 days prior written notice to Lessee unless Lessee notifies Lessor, in writing,
within 10 days after receipt of Lessor's termination notice that Lessee will pay for such Capital Expenditure. If Lessor does not elect to terminate, and
fails to tender its share of any such Capital Expenditure, Lessee may advance such funds and deduct same, with Interest, from Rent until Lessor's
‘share of such costs have been fully paid. If Lessee is unable to finance Lessor's share, or if the balance of the Rent due and payable for the remainder
of this Lease is not sufficient to fully reimburse Lessee on an offset basis, Lessee shall have the right to terminate this Lease upon 30 days written
notice to Lessor.
(c) Notwithstanding the above, the provisions concerning Capital Expenditures are intended to apply only to non-voluntary,
unexpected, and new Applicable’ Requirements. If the Capital Expenditures are instead triggered by Lessee as a result of an actual or proposed
change in use, change in intensity of use, or modification tothe Premises then, and in that event, Lessee shall either: (i) immediately cease such
changed use or intensity of use and/or take such other steps as may be necessary to eliminate the requirement for such Capital Expenditure, or (ii)
complete such Capital Expenditure at its own expense. Lessee shall not have any right to terminate this Lease.
24 Acknowledgements. Lessee acknowledges that: (a) it has been advised by Lessor and/or Brokers to satisfy itself with respect to
the condition of the Premises (including but not limited to the electrical, HVAC and fire sprinkler systems, security, environmental aspects, and
compliance with Applicable Requirements and the Americans with Disabilities Act), and their suitability for Lessee’s intended use, (b) Lessee has made
‘such investigation as it deems necessary with reference to such matters and assumes all responsibility therefor as the same relate to its occupancy of
the Premises, and (c) neither Lessor, Lessor’s agents, nor Brokers have made any oral or written representations or warranties with respect to said
matters other than as set forth in this Lease. In addition, Lessor acknowledges that: (i) Brokers have made no representations, promises or warranties
concerning Lessee's ability to honor the Lease or suitability to occupy the Premises, and (ii) it is Lessor’s sole responsibility to investigate the financial
capability and/or suitability of all proposed tenants.
pror-to-the-Stan-Date-Lessee-was_the-owner- 1paF e-fo
26 Vehicle Parking. Lessee shall not use and shall not permit its employees to use any parking spaces in the Shopping Center
except for parking by vehicles that are no larger than full-size passenger automobiles or pick-up trucks, herein called "Permitted Size Vehicles.
Lessee shall permit its employees to only occupy those parking spaces, if any, as depicted as employee ‘spaces on the Shopping Center site
plan. Lessor may regulate the loading and unloading of vehicles by adopting Rules and Regulations as provided in Paragraph 2.9. No vehicles other
than Permitted Size vericies may be parked in the Common Area without the prior written permission of Lessor. In addition:
Lessee shall not permit or allow any vehicles that belong to or are controlled by Lessee or Lessee’s employees,
suppliers, shippers, Contractors or invitees to be loaded, unloaded, or parked in areas other than those designated by Lessor for such activities.
Lessee shall not service or store any vehicles in the Common Areas.
(c) tf Lessee permits or allows any of the prohibited activities described in this Paragraph 2.6, then Lessor shall have the
right, without notice, in addition to such other rights and remedies that it may have, to remove or tow away the vehicle involved and charge the cost to
Lessee, which cost shall be immediately payable upon demand by Lessor.
27 Common Areas - Definition. The term "Common Areas" is defined as all areas and facilities outside the Premises and within the
exterior boundary line of the Shopping Center and interior utility raceways and installations within the Premises that are provided and designated by the
Lessor from time to time for the general non-exclusive use of Lessor, Lessee and other tenants of the Shopping Center and their respective employees,
suppliers, shippers, customers, contractors and invitees, including parking areas, loading and unloading areas, trash areas, roadways, .
driveways and landscaped areas.
28 Common Areas- Lessee's Rights. Lessor grants to Lessee, for the benefit of Lessee and its employees, suppliers, shippers,
contractors, customers and invitees, during the term of this Lease, the non-exclusive right to use, in common with others entitled to such use, the
Comm reas as they exist from time to time, subject to any rights, powers, and privileges reserved by Lessor under the terms hereof or under the
“ht \ of/any rules and regulations or restrictions governing the use of the Shopping Center. Under no circumstances shall the right herein granted to
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use the Common Areas be deemed to include the right to store any property, temporarily or permanently, in the Common Areas, nor the right to display
merchandise or conduct sales in the Common Areas. Any such storage, display or sales shall be permitted only by the prior written consent of Lessor
or Lessor’s designated agent, as exercised in Lessor's sole discretion, which consent may be revoked at any time. In the event that any unauthorized
‘storage or displays shall occur then Lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove
the property and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lessor.
29 Common Areas - Rules and Regulations. Lessor or such other person(s) as Lessor may appoint shall have the exclusive control
and management of the Common Areas and shall have the right, from time to time, to establish, modify, amend and enforce reasonable rules and
regulations ("Rules and Regulations") for the management, safety, care, and cleanliness of the grounds, the parking and unloading of vehicles and the
preservation of good order, as well as for the convenience of other occupants or tenants of the Building and the Shopping Center and their invitees.
Lessee agrees to abide by and conform to all such Rules and Regulations, and shall use its best efforts to cause its employees, suppliers, shippers,
customers, contractors and invitees to so abide and conform. Lessor shall not be responsible to Lessee for the non-compliance with said Rules and
Regulations by other tenants of the Project.
2.10 Common Areas - Changes. Lessor shall have the right, in Lessor's sole discretion, from time to time:
(a) To make changes or additions to the Common Areas, including, without limitation, changes in the location, size, shape
and number of driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, elevations,
landscaped areas, signage, walkways and utility raceways;
To use and close temporarily any of the Common Areas for the purpose of maintaining, repairing and altering the
Shopping Center, so long as reasonable access to the Premises remains available, and to close temporarily any of the Common Areas to whatever
extent is required in the opinion of Lessor’s counsel to prevent a dedication of or the accrual of any rights of any persons or of the public to any of the
Common Areas;
To designate other land outside the boundaries of the Shopping Center to be a part of the Common Areas or to be
entitled to use the Common Areas on a reciprocal basis;
(a) To add additional buildings and improvements to the Common Areas; and
(e) To do and perform such other acts and make such other changes in, to or with respect to the Common Areas and
Shopping Center as Lessor may, in the exercise of sound business judgment, deem to be appropriate.
2.11 Common Areas - Promotional Events; Sidewalk Sales. Lessor reserves the right, from time to time, in Lessor’s sole discretion,
to utilize portions of the Common Areas for promotional events, which may include but shall not be limited to entertainment. Lessor further reserves the
tight, in Lessor’s sole discretion, to permit any one or more tenants of the Shopping Center to conduct the display and/or sale of merchandise from the
sidewalks immediately adjacent to such tenants’ respective premises.
212 Common Areas - Remodeling. At any time during the Term, Lessor may remodel or expand, in any manner, the existing
Shopping Center, which work may include, without limitation, the addition of shops and/or new buildings to the Shopping Center (collectively,
"Remodeled Center"). {f Lessor deems it necessary for construction personnel to enter the Premises in order to construct the Remodeled Center,
Lessor shall give Lessee no less than 60 days prior notice and Lessee shail allow such entry. Lessor shall use reasonable efforts to complete any work
affecting the Premises in an efficient manner so as not to interfere unreasonably with Lessee’s business. Lessee shall not be entitled to any damages
for any inconvenience or any disruption to Lessee’s business caused by such work; provided, however, the Base Rent paid by Lessee for the period of
the inconvenience shall be abated in proportion to the degree that Lessee’s use of the Premises is impaired. Lessor shall have the right to use portions
of the Premises to accommodate any structures required for the Remodeled Center, provided that if as a result thereof there is a permanent decrease
in the floor area of the Premises of 3% or more, there shall be a proportionate downward adjustment of Base Rent and Lessee’s Share.
3. Term.
31 Term. The Commencement Date, Expiration Date and Original Term of this Lease are as specified in Paragraph 1.3.
3.2 Early Possession. If an Early Possession Date has been specified in Paragraph 1.4, the Parties intend that Lessee shall have
access to the Premises as of the Early Possession Date for purposes of preparing and fixturizing the Premises for the conduct of Lessee’s business. If
Lessee totally or partially occupies the Premises prior to the Commencement Date for any reason (and for purposes hereof, “occupancy” shall include,
without limitation, Lessee’s entry onto the Premises for purposes of preparing and fixturizing the Premises for business), the obligation to pay Base
Rent and Percentage Rent shall be abated for the period of such early possession. All other terms of this Lease (including but not limited to Lessee's
obligations to carry insurance and to maintain the Premises) shall be in effect during such period, except that Lessee's obligation to pay Lessee’s Share
of Common Area Operating Expenses, Real Property Taxes and insurance premiums shall only be in effect prior to the Commencement Date if Lessee
has opened for business in the Premises prior to the Commencement Date. Any such early ossession stshall not affect the Expiration Date.
its-best. orp
agreed,
34 Lessee Compliance. Lessor shall not be required to tender possession of the Premises to Lessee until Lessee complies with its
obligation to provide evidence of insurance (Paragraph 8.5). Pending delivery of such evidence, Lessee shall be required to perform all of its
obligations under this Lease from and after the Start Date, including the payment of Rent, notwithstanding Lessor’s election to withhold possession
pending receipt of such evidence of insurance. Further, if Lessee is required to perform any other conditions prior to or concurrent with the Start Date,
the Start Date shall occur but Lessor may elect to withhold possession until such conditions are satisfied.
4. Rent.
44 Rent Defined. All monetary obligations of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are
deemed to be rent ("Rent”).
42 Common Area Operating Expenses. Lessee shall pay to Lessor during the term hereof, in addition to the Base Rent and, if
applicable, Percentage Rent, Lessee’s Share (as specified in Paragraph 1.7) of all Common Area Operating Expenses, as hereinafter defined, during
each calendar year of the term of this Lease, in accordance with the following provisions:
(a) “Common Area Operating Expenses" are defined, for Purposes of this Lease, as all costs incurred by Lessor relating to
the ownership and operation of ihe Shopping Center, including, but not limited to, the followi
The operation, repair and maintenance, in neat, clean, good order and condition, and replacement as
reasonably necessary, of the Growing:
(aa) The Common Areas and Common Area improvements, including parking areas, loading and
unloading areas, trash areas, roadways, parkways, walkways, driveways, landscaped areas, parking lot striping, bumpers, irrigation systems, Common
Area lighting facilities, fences and gates, elevators, roofs, and roof drainage systems.
(bb) Exterior signs and any tenant directories.
(cc) Any fire detection and/or sprinkler systems.
(ad) Common electrical, plumbing and other utilities servicing any building in the Shopping Center and/or
the Common Areas.
il) The cost of water, gas, electricity and telephone to service the Common Areas and any utilities not separately
metered.
i The cost of trash disposal, pest control services, property management (including, but not be limited to,
Property management fee to Lessor equal to 5% of Base Rent and Percentage Rent, security services, and the costs of any environmental inspections.
Reserves set aside for equipment, maintenance, repair and replacement of Common Areas.
(v) Real Property Taxes (as defined in Paragraph 10).
(vi) The cost of the premiums for the insurance maintained by Lessor pursuant to Paragraph 8.
Any deductible portion of an insured loss concerning the Building or the Common Areas.
(vill) Auditors’, accountants’ and attorneys’ fees and costs related to the operation of the Shopping Center.
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(x) The cost of any capital improvement to the Building or the Shopping Center not covered under the provisions of
Paragraph 2.3; provided, however, that Lessor shall allocate the cost of any such capital improvement over a 12 year period and Lessee shall not be
required to pay more than Lessee’s Share of 1/144th of the cost of such capital improvement in any given month.
(x) The cost of any other services to be provided by Lessor that are stated elsewhere in this Lease to be a
Common Area Operating Expense.
(b) if Lessor determines that the method of proration of any item included within Common Area Operating Expenses is
inequitable, Lessor may prorate such item on the basis of usage or other equitable considerations. Any Common Area Operating Expenses and Real
Property Taxes that are specifically attributable to the Premises, the Building or to any other premises or building in the Shopping Center or to the
operation, repair and maintenance thereof shall be allocated entirely to such premises or building. However, any Common Area Operating Expenses
and Real Property Taxes that are not specifically attributable to any premises or building or to the operation, repair and maintenance thereof shall be
equitably allocated by Lessor to all buildings in the Shopping Center.
(c) The inclusion of the improvements, facilities and services set forth in Subparagraph 4.2(a) shall not be deemed to impose.
an obligation upon Lessor to either have said improvements or facilities or to provide those services unless the Shopping Center already has the same,
Lessor already provides the services, or Lessor has agreed elsewhere in this Lease to provide the same or some of them.
(d) Lessee’s Share of Common Area Operating Expenses is payable monthly on the same day as the Base Rent is due
hereunder. The amount of such payments shall be based on Lessor's estimate of the annual Common Area Operating Expenses. Within 60 days after
written request (but not more than once each year) Lessor shall deliver to Lessee a reasonably detailed statement showing Lessee's Share of the
actual Common Area Operating Expenses incurred during the preceding year. If Lessee's payments during such year exceed Lessee's Share, Lessor
shall credit the amount of such over-payment against Lessee's future payments. If Lessee's payments during such year were less than Lessee's
Share, Lessee shall pay to Lessor the amount of the deficiency within 10 days after delivery by Lessor to Lessee of the statement.
(e) If there are one or more Major Tenants (as hereinafter defined) within the Shopping Center, then at Lessor's sole option,
the amount to be reimbursed by such Major Tenants to Lessor for all or a portion of the Common Area Operating Expenses may be determined by
alternative equitable methods (e.g., a Major Tenant may pay directly for its own security), and the actual amount paid by such Major Tenants shall be
credited against the Common Area Operating Expenses allocated to other tenants of the Shopping Center; provided, however, that in such event the
rentable area of the buildings leased to such Major Tenants shall be excluded from the rentable area of the Shopping Center for purposes of
determining Lessee's Share of Common Area Operating Expenses for those specific items, notwithstanding the percentage set forth in Paragraph 1.7.
As used herein, the term "Major Tenant’ shall mean a tenant leasing at least 15,000 square feet of rentable area within the Shopping Center.
(f) Common Area Operating Expenses shall not include any expenses paid by any tenant directly to third parties, or as to
which Lessor is otherwise reimbursed by any third party, other tenant, or insurance proceeds.
Payment. Lessee shall cause payment of Rent to be received by Lessor in lawful money of the United States, without offset or
deduction (except as specifically permitted in this Lease), on or before the day on which it is due. All monetary amounts shall be rounded to the nearest
whole dollar. In the event that any invoice prepared by Lessor is inaccurate such inaccuracy shall not constitute a waiver and Lessee shall be obligated
to pay the amount set forth in this Lease. Rent for any period during the term hereof which is for less than one full calendar month shall be prorated
based upon the actual number of days of said month. Payment of Rent shall be made to Lessor at its address stated herein or to such other persons or
place as Lessor may from time to time designate in writing. Acceptance of a payment which is less than the amount then due shall not be a waiver of
Lessor's rights to the balance of such Rent, regardless of Lessor's endorsement of any check so stating. In the event that any check, draft, or other
instrument of payment given by Lessee to Lessor is dishonored for any reason, Lessee agrees to pay to Lessor the sum of $25 in addition to any Late
Charge and Lessor, at its option, may require all future Rent be paid by cashier's check. Payments will be applied first to accrued late charges and
attorney's fees, second to accrued interest, then to Base Rent and Common Area Operating Expenses, and any remaining amount to any other
outstanding charges or costs.
5. Security Deposit. Lessee shall deposit with Lessor upon execution hereof the Security Deposit as security for Lessee's faithful performance
of its obli igations under this Lease. If Lessee fails to pay Rent, or otherwise Defaults under this Lease, Lessor may use, apply or retain all or any portion
of said Security Deposit for the payment of any amount due already due Lessor, for Rents which will be due in the future, and/ oF to reimburse or
compensate Lessor for any liability, expense, loss or damage which Lessor may suffer or incur by reason thereof. If Lessor uses or applies all or any
portion of the Security Deposit, Lessee shall within 10 days after written request therefor deposit monies with Lessor sufficient to restore said Security
Deposit to the full amount required by this Lease. If the Base Rent increases during the term of this Lease, Lessee shall, upon written request from
Lessor, deposit additional monies with Lessor so that the total amount of the Security Deposit shall at all times bear the same proportion to the
increased Base Rent as the initial Security Deposit bore to the initial Base Rent. Should the Agreed Use be amended to accommodate a material
change in the business of Lessee or to accommodate a sublessee or assignee, Lessor shall have the right to increase the Security Deposit to the
extent necessary, in Lessor's reasonable judgment, to account for any increased wear and tear that the Premises may suffer as a result thereof. If a
change in control of Lessee occurs during this Lease and following such change the financial condition of Lessee is, in Lessor's reasonable judgment,
significantly reduced, Lessee shall deposit such additional monies with Lessor as shall be sufficient to cause the Security Deposit to be at a
commercially reasonable level based on such change in financial condition. Lessor shall not be required to keep the Security Deposit separate from its
general accounts. Within 90 days after the expiration or termination of this Lease, Lessor shall return that portion of the Security Deposit not used or
applied by Lessor. No part of the Security Deposit shall be considered to be hel
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
BOWMAN AND BROOKE LLP Anthony Parascandola (SBN 140217) Electronically FILED by Michael Chung (SBN 243204) Superior Court of California, 970 West 190th Street, Suite 700 County of Los Angeles Torrance, CA 90502 7/03/2024 12:36 Phone: (310) 768-3068 David W. Slayton, Executive Officer/Clerk of Court, Fax: (310) 719-1019 By A. Ilieva, Deputy Clerk Attorneys for Plaintiff SUBWAY REAL ESTATE, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES — SANTA MONICA COURTHOUSE 10 11 SUBWAY REAL ESTATE, LLC., a CASE NO. 245M CYO3S236 Delaware limited liability company, 12 Hon. Plaintiff, Dept. 13 vs. 14 COMPLAINT FOR UNLAWFUL AMRITA MULTANI, an individual dba DETAINER 15 SUBWAY, SURJIT MULTANI, an individual dba SUBWAY, and DOES 1 16 through 10, inclusive, 17 Defendants. 18 19 Plaintiff Subway Real Estate, LLC, a Delaware limited liability company (“Plaintiff”), 20 alleges as follows: 21 1 Plaintiff is and at all times herein mentioned was, a Delaware limited liability 22 company, duly organized and existing under the laws of the State of Connecticut. Plaintiff 23 has recorded, filed, and published all statements required by California law. 24 2 Plaintiff alleges that at all times herein mentioned Amrita Multani and Surjit 25 Multani (“Defendants”) is and was doing business in the County of Los Angeles, State of 26 California as a Subway franchisee. 27 3 The true names and capacities, whether individual, corporate, associate, or 28 otherwise, of Defendants Does 1 through 10, inclusive, are unknown to Plaintiff who 29902768v1 1 COMPLAINT FOR UNLAWFUL DETAINER therefore sues said Defendants by such fictitious names. Plaintiff will amend this Complaint to show the true names and capacities of Defendants after the same have been ascertained. 4 Plaintiff is informed and believes and thereon alleges that at all times herein mentioned each Defendant was the agent and employee of each Defendant and was acting within the scope and authority of such agency and employment. 5 Plaintiff is informed and believes and thereon alleges that Defendant did agree to perform the acts hereafter described and that Defendant performed and continued to perform such acts pursuant to the agreement or agreements. 10 6 The real property, possession of which is sought in this action, is situated 11 at 2601 South La Brea Avenue, Unit C, Los Angeles, California 90067 (“Premises"). 12 7 On or about September 4, 2012, Plaintiff leased the Premises from 13 Jacko | LLC (“Landlord”) pursuant to a written lease (the "Master Lease"). A true and 14 correct copy of the Master Lease is attached hereto as Exhibit A. 15 8 The Master Lease was subsequently extended to cover the relevant period 16 of this Complaint. 17 9 On or about December 28, 2012, Plaintiff (as Sublessor), on the one hand, 18 and Defendants (Subtenants), on the other hand, executed a written sublease for the 19 Premises (the "Sublease"). A true and correct copy of the Sublease is attached as 20 Exhibit B. 21 10. Paragraph 3 of the Sublease provides that Subtenants agree to sublease 22 the Premises at the rental called for in the Master Lease, including all charges relating to 23 the Premises such as common area charges, maintenance, insurance, tax, and rental 24 escalations. 25 11. Paragraph 4 of the Sublease also provides that Subtenants agree to 26 perform and observe all of the obligations of the Sublessor under the Master Lease and 27 to make all rental payments directly to the Master Landlord in the manner set forth in the 28 Master Lease. 29902768v1 2 COMPLAINT FOR UNLAWFUL DETAINER 1 12. The Master Lease provides that the tenant shall pay monthly rent and additional sums. 13. Defendants entered into possession of the Premises under the sublease and continues to occupy the Premises. 14. Defendants have failed to pay rent and other charges in the amount of at least $40,179.04 to the current Landlord of the Premises as required by the Sublease and Master Lease. 15. On March 19, 2024, Plaintiff, caused to be served upon Defendants a ten- day written notice to pay or quit (“Ten-Day Notice”) setting forth the nature of Defendants’ 10 default and requiring Defendants to cure same or to deliver possession of the Premises 11 within ten (10) days thereafter. The amount stated in the notice for past due rent and 12 other charges was in the amount of $40,179.04. A true and correct copy of the Ten-Day 13 Notice is attached hereto as Exhibit C. 14 16. Defendants were not excused from paying the full amount owed. 15 18. Defendants have not cured the default or vacated the Premises to date. 16 Based on current information and belief, the current outstanding past due rent and other 17 charges owed to Plaintiff by Defendants is approximately $40,179.04, with penalties 18 accruing daily. 19 19. Except as excused by law or the conduct of Defendants, Plaintiff has 20 performed all the terms, covenants, and conditions as required by the Sublease. 21 20. Plaintiff is now entitled to possession of the Premises. 22 21. Defendants continue to be in possession of the Premises without Plaintiff's 23 permission and consent and contrary to the terms of the Master Lease and Sublease. 24 Such detention is willful, intentional, deliberate, and obstinate. 25 22. Damages have accrued and will continue to accrue so long as Defendants 26 remain in possession of the Premises. 27 23. Section 8.1.5 of the Sublease provides that “If Subtenant fails to pay 28 Sublandlord any installment of the Rent or Additional Charges when it becomes due and 29902768v1 3 COMPLAINT FOR UNLAWFUL DETAINER payable and fails to make such payment within ten (10) days after written notice thereof by Sublandlord to Subtenant” is a default of the Sublease. As noted above, Plaintiff has served Defendant written notice, providing Defendant the ten (10) day period to cure. 24. Paragraph 6 of the Sublease provides that “The Sublease agrees to pay to the Sublessor upon demand, as additional rent, any fees, costs or charges, including attorneys’ fees and legal costs, incurred by the Sublessor in enforcing any of the terms or provision of this Sublease.” WHEREFORE, Plaintiff prays for judgment as follows: 1 For forfeiture of the Sublease and immediate possession of the Premises; 10 2 For past due rent of $40,179.04 and other charges, and statutory damages 11 pursuant to CCP Section 1174; 12 For damages at the daily rate according to proof; 13 For reasonable attorneys’ fees incurred herein; 14 For costs of suit incurred herein; and, 15 For such other and further relief as is just and proper. 16 Dated: July 2, 2024 BOWMAN AND BROOKE LLP 17 yf 7 sn 18 By: “ 19 Anthony J. Parascandola Michael Chung 20 Attorneys for Plaintiff SUBWAY REAL ESTATE, LLC 21 22 23 24 25 26 27 28 29902768v1 4 COMPLAINT FOR UNLAWFUL DETAINER EXHIBIT "A" SAUS| — PAN Id Peenrerrrs gale Leave Beretsanned AIR COMMERCIAL REAL ESTATE ASSOCIATION STANDARD RETAIL/MULTI-TENANT LEASE - NET 1 Basic Provisions ("Basic Provisions"). 1 Parties: This Lease ("Lease"), dated for reference purposes only September 4, 2012 4 is made by and between Jacko I LLC, a California limited liability company ("Lessor") and Subway Real Estate, LLC ("Lessee") (colictively the "Partios*, or naivdually a "Party". 1.2 Premises: That certain portion of the Shopping Center (as defined below), including all improvements therein or to be provided by Lessor under the terms of this Lease, commonly known by the street address of 2601 S. La Brea Avenue, Unit C located in the City of Los_Angéles , County of Los Angeles , State of California , with zip code 90016 , 48 outlined on Exhibit A attached hereto ("Premises") and generally described as (describe briefly the nature of the Premises): an inline space consisting of 1230 SF as and where shown as Retail Space 1 on the site plan attached hereto as Exhibit A In addition to Lessee’s rights to use and occupy the Premises as hereinafter specified, Lessee shall have non-exclusive rights to the Common Areas (as defined in Paragraph 2.7 below) as hereinafter specified, but shall not have any rights to the roof, exterior walls or utility raceways of the building containing the Premises ("Building") or to any other buildings in the Shopping Center. The Premises and the Building are situated within the Shopping Center known as TBD The Premises, the Building, the Common Areas and all other buildings and improvements within said Shopping Center, together with the land upon which they are located, are herein collectively referred to as the "Shopping Center." (See also Paragraph 2) 1.3 Term: years and zero months ("Original Term") commencing see Addendum (‘Commencement Date") and ending see Addendum (Expiration Date"). (See also Paragraph 3) 14 Early Possession: N/A (‘Early Possession Date"). (See also Paragraphs 3.2 and 3.3) 15 Base Rent: $2,952.00 per month ("Base Rent"), payable on the 1st day of each month commencing on the Commencement Date . (See also Paragraph 4) 1 If this box is checked, there are provisions in this Lease for the Base Rent to be adjusted. 1.6 Percentage Rent Rate: N/A percent ( %) of Gross Sales. Percentage Rent shall be due and payable in accordance with the provisions of the Percentage Rent Addendum, if any, attached hereto and made a part hereof, and Paragraph 4 hereof. 17 Lessee’s Share of Common Area Operating Expenses: twenty-one and 10/100ths percent (21.10%) ("Lessee’s Share"). 18 Merchants’ Association Annual Dues: $ N/A. year ("Merchants’ Association Dues’). Lessee shall pay Merchants’ Association Dues and/or become a member of the Merchants’ Association in accordance with the provisions of the Merchants’ Association Addendum, if any, attached hereto. 1.9 Base Rent and Other Monies Paid Upon Execution: @ Base Rent: $2, 952.00 for the period of first months rent (b) Common Area Operating Expenses: $615.00 for the periodof first months rent (c) Security Deposit: $3,567.00 (‘Security Deposit"). (See also Paragraph 5) (a) Merchants’ Association Du 8 for the period (e) Other: $ for @ Total Due Upon Execution of this Lease: $7, 134.00 1.10 Agreed Use: Exclusive right to sell hot and cold submarine style sandwiches. Landlord shall not lease a space in the center to Jersey Mikes, Quiznos, Togos, Blimpies, or_any other restaurant who main business is sandwiches.* (See Addendum Paragraph 1 or additional terms regarding Agreed Use). (See also Paragraph 6) 1.11 Agreed Trade Name: Subway {See also Paragraph 6) 1.12 Insuring Party. Lessor is the “Insuring Party". (See also Paragraph 8) 4 1.13 Real Estate Brokers: (See also Paragraph 15) Representation: The following real estate brokers (the Brokers") and brokerage relationships exist in this transaction (check applicable boxes): Mpatrick Ortiz, NAI Capital represents Lessor exclusively ("Lessor’s Broker"); a represents Lessee exclusively ("Lessee’s Broker"); or a represents both Lessor and Lessee ("Dual Agency’). (b) Payment to Brokers: Upon execution and delivery of this Lease by both Parties, Lessor shall pay to the Brokers the brokerage fee agreed to in a separate written agreement (or if there is no such agreement, the sum of or 5 % of the total Base Rent) for the brokerage services rendered by the Brokers. 1.14 Guarantor. The obligations of the Lessee under this Lease are to be guaranteed by none (Guaranto (See also Paragraph 37) 1.15 Attachments. Attached hereto are the following, all of which constitute a part of this Lease: an addendum consisting of Paragraphs through 0 asite plan marked Exhibit » depicting the Premises; a site plan marked Exhibit A , depicting the Shopping Center; \ O acurrent set of Rules and Regulations for the Shopping Center; C acurent set of the Sign Criteria for the Shopping Center; PAGE1 OF 15 Ww INTHALS: INITIALS ©2003 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM RMTN-3-6/07E a * Landlord shall not lease to another space in the building to a marijuana dispensary. Oa work letter; a other (specify): Rider to Lease, Option Rent Addendum, Rent Increase Addendum, Arbitration Addendum 2. Premises. 21 Letting. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Premises, for the term, at the rental, and upon all of the terms, covenants and conditions set forth in this Lease. Unless otherwise provided herein, any statement of size set forth in this Lease, or that may have been used in calculating Rent, is an approximation which the Parties agree is reasonable and any payments based thereon are not ‘subject to revision whether or not the actual size is more or less, NOTE: Lessee Is advised to verify the actual size prior to executing this Lease. 22 Condition. Lessor shall deliver the Premises to Lessee broom clean and free of debris on the Commencement Date or the Early Possession Date, whichever first occurs ("Start Date"), and, so long as the required service contracts described in Paragraph 7.1(b) below are obtained by Lessee and in effect within 30 days following the Start Date, warrants that the existing electrical, plumbing, fire sprinkler, lighting, heating, ventilating and air conditioning systems ("HVAC"), loading doors, if any, and all other such elements in the Premises, other than those constructed by Lessee, shall be in good operating condition on said date and that the structural elements of the roof, bearing walls and foundation of the Premises shall be free of material defects, and that the Premises do not contain hazardous levels of any mold or fungi defined as toxic under applicable state or federal law. If a non-compliance with such warranty exists as of the Start Date, or if one of such systems or elements should matfunction or fail within the appropriate warranty period, Lessor shall, as Lessor's sole obligation with respect to such matter, except as otherwise provided in this Lease, promptly after receipt of written notice from Lessee setting forth with specificity the nature and extent of such non-compliance, malfunction or failure, rectify same at Lessor’s expense. The warranty periods shall be as follows: (i) 6 months as to the HVAC systems, and (ji) 30 days as to the remaining systems and other elements of the Premises. If Lessee does not give Lessor the required notice within the appropriate warranty period, correction of any such non-compliance, malfunction or failure shall be the obligation of Lessee at Lessee’s sole cost and expense (except for the repairs to the fire sprinkler systems, roof, foundations, and/or bearing walls). 23 Compliance. Lessor warrants that to the best of its knowledge the improvements on the Premises and the Common Areas comply with the building codes that were in effect at the time that each such improvement, or portion thereof, was constructed, and also with all applicable laws, covenants or restrictions of record, regulations, and ordinances in effect on the Start Date ("Applicable Requirements"). Said warranty does not apply to the use to which Lessee will put the Premises, modifications which may be required by the Americans with Disabilities Act or any similar laws as a result of Lessee's use (see Paragraph 50), or to any Alterations or Utility Installations (as defined in Paragraph 7.3(a)) made or to be made by Lessee. NOTE: Lessee is responsible for determining whether or not the Applicable Requirements, and especially the zoning, are appropriate for Lessee’s intended use, and acknowledges that past uses of the Premises may no longer be allowed. If the Premises do not comply with said warranty, Lessor shall, except as otherwise provided, promptly after receipt of written notice from Lessee setting forth with specificity the nature and extent of such non-compliance, rectify the same at Lessor’s expense. If Lessee does not give Lessor written notice of a non-compliance with this warranty within 6 months following the Start Date, correction of that non-compliance shall be the obligation of Lessee at Lessee’s sole cost and expense. If the Applicable Requirements are hereafter changed so as to require during the term of this Lease the construction of an addition to or an alteration of the Premises and/or Building, the remediation of any Hazardous Substance, or ‘the reinforcement or other physical modification of the Premises. and/or Building ("Capital Expenditure"), Lessor and Lessee shall allocate the cost of such work as follows: fa) Subject to Paragraph 2.3(c) below, if such Capital Expenditures are required as a result of the specific and unique use of the Premises by Lessee as compared with uses by tenants in general, Lessee shall be fully responsible for the cost thereof, provided, however that if such Capital Expenditure is required during the last 2 years of this Lease and the cost thereof exceeds 6 months’ Base Rent, Lessee may instead terminate this Lease unless Lessor notifies Lessee, in writing, within 10 days after receipt of Lessee’s termination notice that Lessor has elected to pay the difference between the actual cost thereof and the amount equal to 6 months’ Base Rent. If Lessee elects termination, Lessee shall immediately cease the use of the Premises which requires such Capital Expenditure and deliver to Lessor written notice specifying a termination date at least 90 days thereafter. Such termination date shall, however, in no event be earlier than the last day that Lessee could legally utilize the Premises without commencing such Capital Expenditure. (b) If such Capital Expenditure is not the result of the specific and unique use of the Premises by Lessee (such as, governmentally mandated seismic modifications), then Lessor shall pay for such Capital Expenditure and Lessee shall only be obligated to pay, each month during the remainder of the term of this Lease, on the date that on which the Base Rent is due, an amount equal to 144th of the portion of such costs reasonably attributable to the Premises. Lessee shall pay Interest on the balance but may pi its obligation at any time. If, however, such Capital Expenditure is required during the last 2 years of this Lease or if Lessor reasonably determines that it is not economically feasible to pay its share thereof, Lessor shall have the option to terminate this Lease upon 90 days prior written notice to Lessee unless Lessee notifies Lessor, in writing, within 10 days after receipt of Lessor's termination notice that Lessee will pay for such Capital Expenditure. If Lessor does not elect to terminate, and fails to tender its share of any such Capital Expenditure, Lessee may advance such funds and deduct same, with Interest, from Rent until Lessor's ‘share of such costs have been fully paid. If Lessee is unable to finance Lessor's share, or if the balance of the Rent due and payable for the remainder of this Lease is not sufficient to fully reimburse Lessee on an offset basis, Lessee shall have the right to terminate this Lease upon 30 days written notice to Lessor. (c) Notwithstanding the above, the provisions concerning Capital Expenditures are intended to apply only to non-voluntary, unexpected, and new Applicable’ Requirements. If the Capital Expenditures are instead triggered by Lessee as a result of an actual or proposed change in use, change in intensity of use, or modification tothe Premises then, and in that event, Lessee shall either: (i) immediately cease such changed use or intensity of use and/or take such other steps as may be necessary to eliminate the requirement for such Capital Expenditure, or (ii) complete such Capital Expenditure at its own expense. Lessee shall not have any right to terminate this Lease. 24 Acknowledgements. Lessee acknowledges that: (a) it has been advised by Lessor and/or Brokers to satisfy itself with respect to the condition of the Premises (including but not limited to the electrical, HVAC and fire sprinkler systems, security, environmental aspects, and compliance with Applicable Requirements and the Americans with Disabilities Act), and their suitability for Lessee’s intended use, (b) Lessee has made ‘such investigation as it deems necessary with reference to such matters and assumes all responsibility therefor as the same relate to its occupancy of the Premises, and (c) neither Lessor, Lessor’s agents, nor Brokers have made any oral or written representations or warranties with respect to said matters other than as set forth in this Lease. In addition, Lessor acknowledges that: (i) Brokers have made no representations, promises or warranties concerning Lessee's ability to honor the Lease or suitability to occupy the Premises, and (ii) it is Lessor’s sole responsibility to investigate the financial capability and/or suitability of all proposed tenants. pror-to-the-Stan-Date-Lessee-was_the-owner- 1paF e-fo 26 Vehicle Parking. Lessee shall not use and shall not permit its employees to use any parking spaces in the Shopping Center except for parking by vehicles that are no larger than full-size passenger automobiles or pick-up trucks, herein called "Permitted Size Vehicles. Lessee shall permit its employees to only occupy those parking spaces, if any, as depicted as employee ‘spaces on the Shopping Center site plan. Lessor may regulate the loading and unloading of vehicles by adopting Rules and Regulations as provided in Paragraph 2.9. No vehicles other than Permitted Size vericies may be parked in the Common Area without the prior written permission of Lessor. In addition: Lessee shall not permit or allow any vehicles that belong to or are controlled by Lessee or Lessee’s employees, suppliers, shippers, Contractors or invitees to be loaded, unloaded, or parked in areas other than those designated by Lessor for such activities. Lessee shall not service or store any vehicles in the Common Areas. (c) tf Lessee permits or allows any of the prohibited activities described in this Paragraph 2.6, then Lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove or tow away the vehicle involved and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lessor. 27 Common Areas - Definition. The term "Common Areas" is defined as all areas and facilities outside the Premises and within the exterior boundary line of the Shopping Center and interior utility raceways and installations within the Premises that are provided and designated by the Lessor from time to time for the general non-exclusive use of Lessor, Lessee and other tenants of the Shopping Center and their respective employees, suppliers, shippers, customers, contractors and invitees, including parking areas, loading and unloading areas, trash areas, roadways, . driveways and landscaped areas. 28 Common Areas- Lessee's Rights. Lessor grants to Lessee, for the benefit of Lessee and its employees, suppliers, shippers, contractors, customers and invitees, during the term of this Lease, the non-exclusive right to use, in common with others entitled to such use, the Comm reas as they exist from time to time, subject to any rights, powers, and privileges reserved by Lessor under the terms hereof or under the “ht \ of/any rules and regulations or restrictions governing the use of the Shopping Center. Under no circumstances shall the right herein granted to PAGE 2 OF 15 INIT INITIALS. ©2003 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM RMTN-3-6/07E use the Common Areas be deemed to include the right to store any property, temporarily or permanently, in the Common Areas, nor the right to display merchandise or conduct sales in the Common Areas. Any such storage, display or sales shall be permitted only by the prior written consent of Lessor or Lessor’s designated agent, as exercised in Lessor's sole discretion, which consent may be revoked at any time. In the event that any unauthorized ‘storage or displays shall occur then Lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lessor. 29 Common Areas - Rules and Regulations. Lessor or such other person(s) as Lessor may appoint shall have the exclusive control and management of the Common Areas and shall have the right, from time to time, to establish, modify, amend and enforce reasonable rules and regulations ("Rules and Regulations") for the management, safety, care, and cleanliness of the grounds, the parking and unloading of vehicles and the preservation of good order, as well as for the convenience of other occupants or tenants of the Building and the Shopping Center and their invitees. Lessee agrees to abide by and conform to all such Rules and Regulations, and shall use its best efforts to cause its employees, suppliers, shippers, customers, contractors and invitees to so abide and conform. Lessor shall not be responsible to Lessee for the non-compliance with said Rules and Regulations by other tenants of the Project. 2.10 Common Areas - Changes. Lessor shall have the right, in Lessor's sole discretion, from time to time: (a) To make changes or additions to the Common Areas, including, without limitation, changes in the location, size, shape and number of driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, elevations, landscaped areas, signage, walkways and utility raceways; To use and close temporarily any of the Common Areas for the purpose of maintaining, repairing and altering the Shopping Center, so long as reasonable access to the Premises remains available, and to close temporarily any of the Common Areas to whatever extent is required in the opinion of Lessor’s counsel to prevent a dedication of or the accrual of any rights of any persons or of the public to any of the Common Areas; To designate other land outside the boundaries of the Shopping Center to be a part of the Common Areas or to be entitled to use the Common Areas on a reciprocal basis; (a) To add additional buildings and improvements to the Common Areas; and (e) To do and perform such other acts and make such other changes in, to or with respect to the Common Areas and Shopping Center as Lessor may, in the exercise of sound business judgment, deem to be appropriate. 2.11 Common Areas - Promotional Events; Sidewalk Sales. Lessor reserves the right, from time to time, in Lessor’s sole discretion, to utilize portions of the Common Areas for promotional events, which may include but shall not be limited to entertainment. Lessor further reserves the tight, in Lessor’s sole discretion, to permit any one or more tenants of the Shopping Center to conduct the display and/or sale of merchandise from the sidewalks immediately adjacent to such tenants’ respective premises. 212 Common Areas - Remodeling. At any time during the Term, Lessor may remodel or expand, in any manner, the existing Shopping Center, which work may include, without limitation, the addition of shops and/or new buildings to the Shopping Center (collectively, "Remodeled Center"). {f Lessor deems it necessary for construction personnel to enter the Premises in order to construct the Remodeled Center, Lessor shall give Lessee no less than 60 days prior notice and Lessee shail allow such entry. Lessor shall use reasonable efforts to complete any work affecting the Premises in an efficient manner so as not to interfere unreasonably with Lessee’s business. Lessee shall not be entitled to any damages for any inconvenience or any disruption to Lessee’s business caused by such work; provided, however, the Base Rent paid by Lessee for the period of the inconvenience shall be abated in proportion to the degree that Lessee’s use of the Premises is impaired. Lessor shall have the right to use portions of the Premises to accommodate any structures required for the Remodeled Center, provided that if as a result thereof there is a permanent decrease in the floor area of the Premises of 3% or more, there shall be a proportionate downward adjustment of Base Rent and Lessee’s Share. 3. Term. 31 Term. The Commencement Date, Expiration Date and Original Term of this Lease are as specified in Paragraph 1.3. 3.2 Early Possession. If an Early Possession Date has been specified in Paragraph 1.4, the Parties intend that Lessee shall have access to the Premises as of the Early Possession Date for purposes of preparing and fixturizing the Premises for the conduct of Lessee’s business. If Lessee totally or partially occupies the Premises prior to the Commencement Date for any reason (and for purposes hereof, “occupancy” shall include, without limitation, Lessee’s entry onto the Premises for purposes of preparing and fixturizing the Premises for business), the obligation to pay Base Rent and Percentage Rent shall be abated for the period of such early possession. All other terms of this Lease (including but not limited to Lessee's obligations to carry insurance and to maintain the Premises) shall be in effect during such period, except that Lessee's obligation to pay Lessee’s Share of Common Area Operating Expenses, Real Property Taxes and insurance premiums shall only be in effect prior to the Commencement Date if Lessee has opened for business in the Premises prior to the Commencement Date. Any such early ossession stshall not affect the Expiration Date. its-best. orp agreed, 34 Lessee Compliance. Lessor shall not be required to tender possession of the Premises to Lessee until Lessee complies with its obligation to provide evidence of insurance (Paragraph 8.5). Pending delivery of such evidence, Lessee shall be required to perform all of its obligations under this Lease from and after the Start Date, including the payment of Rent, notwithstanding Lessor’s election to withhold possession pending receipt of such evidence of insurance. Further, if Lessee is required to perform any other conditions prior to or concurrent with the Start Date, the Start Date shall occur but Lessor may elect to withhold possession until such conditions are satisfied. 4. Rent. 44 Rent Defined. All monetary obligations of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are deemed to be rent ("Rent”). 42 Common Area Operating Expenses. Lessee shall pay to Lessor during the term hereof, in addition to the Base Rent and, if applicable, Percentage Rent, Lessee’s Share (as specified in Paragraph 1.7) of all Common Area Operating Expenses, as hereinafter defined, during each calendar year of the term of this Lease, in accordance with the following provisions: (a) “Common Area Operating Expenses" are defined, for Purposes of this Lease, as all costs incurred by Lessor relating to the ownership and operation of ihe Shopping Center, including, but not limited to, the followi The operation, repair and maintenance, in neat, clean, good order and condition, and replacement as reasonably necessary, of the Growing: (aa) The Common Areas and Common Area improvements, including parking areas, loading and unloading areas, trash areas, roadways, parkways, walkways, driveways, landscaped areas, parking lot striping, bumpers, irrigation systems, Common Area lighting facilities, fences and gates, elevators, roofs, and roof drainage systems. (bb) Exterior signs and any tenant directories. (cc) Any fire detection and/or sprinkler systems. (ad) Common electrical, plumbing and other utilities servicing any building in the Shopping Center and/or the Common Areas. il) The cost of water, gas, electricity and telephone to service the Common Areas and any utilities not separately metered. i The cost of trash disposal, pest control services, property management (including, but not be limited to, Property management fee to Lessor equal to 5% of Base Rent and Percentage Rent, security services, and the costs of any environmental inspections. Reserves set aside for equipment, maintenance, repair and replacement of Common Areas. (v) Real Property Taxes (as defined in Paragraph 10). (vi) The cost of the premiums for the insurance maintained by Lessor pursuant to Paragraph 8. Any deductible portion of an insured loss concerning the Building or the Common Areas. (vill) Auditors’, accountants’ and attorneys’ fees and costs related to the operation of the Shopping Center. \‘| PAGE 3 OF 15 Ww INI INITIALS ©2003 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM RMTN-3-6/07E (x) The cost of any capital improvement to the Building or the Shopping Center not covered under the provisions of Paragraph 2.3; provided, however, that Lessor shall allocate the cost of any such capital improvement over a 12 year period and Lessee shall not be required to pay more than Lessee’s Share of 1/144th of the cost of such capital improvement in any given month. (x) The cost of any other services to be provided by Lessor that are stated elsewhere in this Lease to be a Common Area Operating Expense. (b) if Lessor determines that the method of proration of any item included within Common Area Operating Expenses is inequitable, Lessor may prorate such item on the basis of usage or other equitable considerations. Any Common Area Operating Expenses and Real Property Taxes that are specifically attributable to the Premises, the Building or to any other premises or building in the Shopping Center or to the operation, repair and maintenance thereof shall be allocated entirely to such premises or building. However, any Common Area Operating Expenses and Real Property Taxes that are not specifically attributable to any premises or building or to the operation, repair and maintenance thereof shall be equitably allocated by Lessor to all buildings in the Shopping Center. (c) The inclusion of the improvements, facilities and services set forth in Subparagraph 4.2(a) shall not be deemed to impose. an obligation upon Lessor to either have said improvements or facilities or to provide those services unless the Shopping Center already has the same, Lessor already provides the services, or Lessor has agreed elsewhere in this Lease to provide the same or some of them. (d) Lessee’s Share of Common Area Operating Expenses is payable monthly on the same day as the Base Rent is due hereunder. The amount of such payments shall be based on Lessor's estimate of the annual Common Area Operating Expenses. Within 60 days after written request (but not more than once each year) Lessor shall deliver to Lessee a reasonably detailed statement showing Lessee's Share of the actual Common Area Operating Expenses incurred during the preceding year. If Lessee's payments during such year exceed Lessee's Share, Lessor shall credit the amount of such over-payment against Lessee's future payments. If Lessee's payments during such year were less than Lessee's Share, Lessee shall pay to Lessor the amount of the deficiency within 10 days after delivery by Lessor to Lessee of the statement. (e) If there are one or more Major Tenants (as hereinafter defined) within the Shopping Center, then at Lessor's sole option, the amount to be reimbursed by such Major Tenants to Lessor for all or a portion of the Common Area Operating Expenses may be determined by alternative equitable methods (e.g., a Major Tenant may pay directly for its own security), and the actual amount paid by such Major Tenants shall be credited against the Common Area Operating Expenses allocated to other tenants of the Shopping Center; provided, however, that in such event the rentable area of the buildings leased to such Major Tenants shall be excluded from the rentable area of the Shopping Center for purposes of determining Lessee's Share of Common Area Operating Expenses for those specific items, notwithstanding the percentage set forth in Paragraph 1.7. As used herein, the term "Major Tenant’ shall mean a tenant leasing at least 15,000 square feet of rentable area within the Shopping Center. (f) Common Area Operating Expenses shall not include any expenses paid by any tenant directly to third parties, or as to which Lessor is otherwise reimbursed by any third party, other tenant, or insurance proceeds. Payment. Lessee shall cause payment of Rent to be received by Lessor in lawful money of the United States, without offset or deduction (except as specifically permitted in this Lease), on or before the day on which it is due. All monetary amounts shall be rounded to the nearest whole dollar. In the event that any invoice prepared by Lessor is inaccurate such inaccuracy shall not constitute a waiver and Lessee shall be obligated to pay the amount set forth in this Lease. Rent for any period during the term hereof which is for less than one full calendar month shall be prorated based upon the actual number of days of said month. Payment of Rent shall be made to Lessor at its address stated herein or to such other persons or place as Lessor may from time to time designate in writing. Acceptance of a payment which is less than the amount then due shall not be a waiver of Lessor's rights to the balance of such Rent, regardless of Lessor's endorsement of any check so stating. In the event that any check, draft, or other instrument of payment given by Lessee to Lessor is dishonored for any reason, Lessee agrees to pay to Lessor the sum of $25 in addition to any Late Charge and Lessor, at its option, may require all future Rent be paid by cashier's check. Payments will be applied first to accrued late charges and attorney's fees, second to accrued interest, then to Base Rent and Common Area Operating Expenses, and any remaining amount to any other outstanding charges or costs. 5. Security Deposit. Lessee shall deposit with Lessor upon execution hereof the Security Deposit as security for Lessee's faithful performance of its obli igations under this Lease. If Lessee fails to pay Rent, or otherwise Defaults under this Lease, Lessor may use, apply or retain all or any portion of said Security Deposit for the payment of any amount due already due Lessor, for Rents which will be due in the future, and/ oF to reimburse or compensate Lessor for any liability, expense, loss or damage which Lessor may suffer or incur by reason thereof. If Lessor uses or applies all or any portion of the Security Deposit, Lessee shall within 10 days after written request therefor deposit monies with Lessor sufficient to restore said Security Deposit to the full amount required by this Lease. If the Base Rent increases during the term of this Lease, Lessee shall, upon written request from Lessor, deposit additional monies with Lessor so that the total amount of the Security Deposit shall at all times bear the same proportion to the increased Base Rent as the initial Security Deposit bore to the initial Base Rent. Should the Agreed Use be amended to accommodate a material change in the business of Lessee or to accommodate a sublessee or assignee, Lessor shall have the right to increase the Security Deposit to the extent necessary, in Lessor's reasonable judgment, to account for any increased wear and tear that the Premises may suffer as a result thereof. If a change in control of Lessee occurs during this Lease and following such change the financial condition of Lessee is, in Lessor's reasonable judgment, significantly reduced, Lessee shall deposit such additional monies with Lessor as shall be sufficient to cause the Security Deposit to be at a commercially reasonable level based on such change in financial condition. Lessor shall not be required to keep the Security Deposit separate from its general accounts. Within 90 days after the expiration or termination of this Lease, Lessor shall return that portion of the Security Deposit not used or applied by Lessor. No part of the Security Deposit shall be considered to be hel