Preview
20SMCV00235
Assigned for all purposes to: Santa Monica Courthouse, Judicial Officer: Elaine Mandel
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SHORELINE
Electronically FILED by Superior Court of California, County of Los Angeles on 02/13/2020 12:00 AM Sherri R. Carter, Executive Officer/Clerk of Court, by B. McClendon,Deputy Clerk
1 SH RELINE, A Law rporation
ANDREW .I . HALEY SBN 202 00)
2 1299 Ocean Avenue, Suite 400
Santa Monica, California 90401-1007
3 Tel phone: (310) 451-8001
Fae imile: (310) 395-5961
4 ahaley@shoreline-law.com
5 Attorneys for Plaintiff
RCP HOLDINGS II, LLC
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF LOS ANGELES - WEST DISTRICT
10 SANTA MONICA COURTHOUSE
11
12
RCP HOLDINGS II, LLC, a Delaware Case No.
13 limited liability company
COMPLAINT FOR DAMAGES FOR:
14 Plaintiffs,
1. BREACH OF WRITTEN LEASE;
15 v. and
2. BREACH OF GUARANTY OF
16 HARVARD TUTORS OF BRENTWOOD, LEASE
LLC, a California limited liability company;
17 EID IA SANTA MONICA STUDIO 0001
LLC, a California limited liability company;
18 ALEXANDER AND ARISTOTLE
BRENTWOOD STUDIO 001 LLC, a
19 alilornia limited liability compan ;
MARGARET JIANG an indi 1dual, and
20 DOES 1-20, inclusive,
21 Defendants.
22
Plaintiff RCP Holdings II, LLC ("RCP") makes the following allegations for its
24 Complaint against defendants.
25 THE PARTIES
26 1. RCP is a Delaware limited liability company and is the owner of an office
27 building located at 240 26 th Street, Santa Monica, California 90402 (the "Building").
28 2. Defendant Harvard Tutors of Brentwood, LLC ("Tenant") is a California
COMPLAINT
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1 limited liability ompany doing business in lhc County of Los Angeles, Stat' of Cal ifornia .
2 /\s alle > d forth ~r b low, Tenant lea ed premis from RCP c nsisting r I. 'i82 r ·ntabk
3 quan.: re ·L n the cc nd floor flh Building and I nown a: SuiL · 2 (lhe "Premise·").
4 3. cfondant Alexander And ArislotJ Brcntwo d Studio )0 I LL (' /\l xandcr"·)
5 is a ~aUfornia l.imit ·d liability company and is believed to be cl ing busine ·s in lhe C mnl
6 o[ Lo · Angeles Stat of Califi rnia. RCP i informed and belie es and based lher on al leg ·s
7 tln.l Alexander i' the alter-ego of Tenant.
8 4. o,f.,ndant Eidia anla Monica tudio 0001 L --Eidi a '), is a alil' m,ia
9 limited li ahilit compan and is b-licved t be doing busin~ss in th Count ol'Los /\n°cl~s.
10 , tall! of alifomia. R [-> is inform ·d and belie i.:s and ba ·cd lber on alleges that L.: idia is the
11 aJt r-eg of T nant.
12 5. Defendant Margaret Jiang 'Guarantor' ) i an individual d ing busin ·ss in and
13 b lieved to be r siding in the aunty o[ Los Angel ~s State of alifornia . RCP is i.nfwrn d
14 and belie cs and based U1 reon allege that Guarantor is a memb >r >f' Tenant. As alleged
15 below. Guarun tor signed a wrilt -n Guarant of L ~as .
16 6. Defendant designated as Does 1 to 20 are unknown to R P wh therefore ucs
17 tho c defendants by uch fictitious names. R P will ·eek leave to amend U1is omphint to s t
18
forth their true names and capacitie wh -n tl1ey have b en ascertained. RCP is informed und
19 beli that at all times p rtinent Doe 1-5 hav1;; been U1e alter-eg of' ·r ·nant b cause: a Lher •
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has · xisted uch a unit of intere t and own rship between them· (b) Tenant is a sh -ll entity that
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is cnnlrolled dominat d and used by D cs 1-5 r r th onduct or ils business s lei as a d ·vice
l a id pers nal liability; (c) Tenant do 'S not operate scparal ' iy from the business condu Led
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by Docs 1-5; d) the scparatenes · of Tenant and Does 1-5 did not exi t during the leasing Lhul is
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U,c subject of this action; (e) Tenant has not observed or followed coqmrat--- frm11alitics; (f)
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assets of Tenant nre (or were) commingled with those of Docs 1-5; and/or (g) Tenant was and is
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undcrcapitaliz d. Any indi idualily and separateness betwe n Tenant and Docs 1-5 has ccas cl
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and each f lh "ID is th all reg of the ther. Adherence l the fiction of separat e, isten · · or
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Tenant and Doe· 1-5 ,,vould permit an abu ·e of an privi lege afforded trul separate pcrs ns
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1 and entities and would sanction fraud and promote injustice in that Does 1-5 may seek to
1 immunize themselves from liability for certain of Tenant's actions, which caused the damages
_ sustained by RCP.
4 THE LEASE
5 7. In or about December 2018, RCP and Tenant entered into a written Lease
0 Agreement (the "Lease") for the Premises. A true copy of the Lease is attached as Exhibit l.
7 8. On or about December 21, 2018, Guarantor executed a written Guaranty of the
s Lease (the "Guaranty"). A true copy of the Guaranty is attached as Exhibit 2.
9 9. The Lease commenced on June 21, 2019 for a term of 62 months. A true copy
1o of the Commencement Letter is attached as Exhibit 3.
11 10. Public records show that on or about August 30, 2019, Margaret Jiang (the
12 Guarantor), formed two new limited liability companies: defendants Alexander and Eidia. In
13 the Articles of Organization for Alexander, Ms. Jiang listed the business address for
111 Alexander as being the subject Premises that had been leased by Tenant. Ms. Jiang listed the
15 mailing address for Alexander as being 2425 Olympic Blvd, Suite 4000W #23, Santa
16 Monica, California - which is the same mailing address as listed in the Articles of
17 Organization for Eidia. Ms. Jiang's husband, Anthony Mendez, is further listed on Harvard
1s Alumni networking rosters as being the Managing Director for Eidia.
19 11. Four days before filing of the above referenced Articles of Organization,
:rn Anthony Mendez sent an email to RCP's representatives bearing a subject line reading
21 "Introduction to our new company." The email stated in part: "I'd like to introduce you to
22 our new company: Alexander and Aristotle. Harvard Tutors of Brentwood LLC will no
JJ longer be active or used for any matters, and the new brand will be the one we will interact
24 with you through." Mr. Mendes even requested that "On existing exterior signage containing
25 'Harvard Tutors' could you please change to the new company ... "
26 12. A web search for Harvard Tutors shows that there is an affiliated entity called
27 Harvard Tutors of Naples, which apparently was the original company founded out of
28 Florida. The web search redirects the searcher to the web page for Eidia, where the home
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1 page states: "New Name, Same Commitment to Results." The home page further states that
2 Harvard Tutors is "proud to continue ... now under the banner and resources of a national
3 leader in college admissions and academic tutoring, Eidia."
4 BREACHES OF THE LEASE AND GUARANTY
5 13. Base rent is payable on the first of each month. Tenant breached the Lease by
6 failing to pay monthly base rent of $14,633.50 for the Premises commencing in August 1,
7 2019 1 and continuing thereafter.
8 14. Additional unpaid operating expenses and late fees are due for the months
9 commencing on and after June 1, 2019.
15. Guarantor breached her Guaranty by failing and refusing to pay the amounts
11 owed by Tenant to RCP which were guaranteed by her.
12 16. On or about January 17, 2020, RCP served a Five-Day Notice to Pay or Quit
13 on Tenant.
14 17. In response, on or about January 21, 2020, Tenant vacated the Premises and
15 returned possession of the Premises to RCP.
16 18. As of January 31, 2020, Tenant owes to RCP damages for, among other things:
17 unpaid base rent, operating expenses, late fees, parking and leasing commissions. RCP's
18 damages are in excess of $219,212.00 and continue to accrue each month; plus interest. The
19 foregoing amount includes the unamortized amount of Abated Rent, which damage remedy
20 is provided for in Section 4.E. of the Lease.
21 FIRST CAUSE OF ACTION
22 (Breach of Written Lease against Tenant, Eidia, Alexander and Does 1-10)
23 19. RCP realleges and incorporates by reference each and every allegation set forth
24
25 1 The Lease called for abatement of base rent for the second and third months of the Lease
(which were July and August 2019 . However, Tenant did not pay base rent for the first
26 rn o nLh of the Lease (whi ch was Jun 2019). Pursuant to an email exchange between Tenant
and R P, RCP agre d to apply the abatem nt earlier (i.e., towards the June 2019 base rent),
27 sm.: h (hat Tenant s base rent abatement would be for the first and second months rather than
the second and third months of the Lease. Accordingly, Tenant was required to commence
28 paying base rent on _A ugust 1, 2019.
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hereinabove.
2 20. RCP performed all obligations on its part to be performed under the Lease.
3 21. The consideration for the Lease is adequate and the terms of the Lease are just
4 and reasonable.
5 22. Tenant and Does 1-10 breached the Lease by failing to pay to RCP the base
6 rent and other monetary amounts due under the Lease (collectively, the "Rent") as alleged
7 above.
8 23. The Lease provides at Section 19 .B that RCP shall recover damages equal to
9 the sum of the following: "(a) all Rent accrued through the end of the month in which the
Io termination becomes effective; (b) interest on all unpaid Rent from the date due at a rate
11 equal to the lesser of 12% per annum or the highest interest rate permitted by applicable
12 Law; (c) all expenses reasonably incurred by Landlord in enforcing its rights and remedies
13 under this Lease, including all reasonable legal expenses; (d) Costs of Reletting; and (e) all
14 Landlord's Rental Damages. In the event that Landlord relets the Premises for an amount
15 greater than the Rent due during the Term, Tenant shall not receive a credit for any such
16 excess."
17 24. As a proximate result of the breach of the Lease by Tenant and Does 1-10,
18 RCP has suffered damages in excess of$219,212.00 through January 31, 2020; plus interest;
19 plus damages that continue to accrue each month, all according to proof.
20 25. The Lease contains a prevailing party attorneys' fees provision at Section 25.
21 Due to Tenant's breach of the Lease, RCP has been forced to retain attorneys to represent it
22 and has incurred, and will continue to incur, attorneys' fees and costs. Accordingly, RCP
23 also seeks an award of its attorneys' fees and costs.
24 26. RCP is informed and believes and based thereon alleges that Tenant, Eidia and
25 Alexander are alter-egos of each other, and, accordingly, Eidia and Alexander are liable to
26 the full extent of the liability of Tenant on the obligations under the Lease.
27
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SECOND CAUSE OF ACTION
2 (Breach of Written Guaranty against Guarantor and Does 11-20)
3 27. RCP realleges and incorporates by reference each and every allegation set forth
4 hereinabove.
5 28. RCP performed all obligations on its part to be performed under the Lease and
6 Guaranty.
7 29. The consideration for the Lease and Guaranty are adequate and the terms are
8 just and reasonable.
9 30. Guarantor and Does 11-20 breached the Guaranty by failing to pay to RCP the
1o Rent and all other sums due under the Lease that are guaranteed by the Guaranty as alleged
11 above.
12 31. As a proximate result of the breach of the Guaranty by Guarantor and Does 11-
13 20, RCP has suffered damages in excess of $219,212.00 through January 31, 2020; plus
14 interest; plus damages that continue to accrue each month, all according to proof.
15 32. The Guaranty contains a prevailing party attorney's fees provision. RCP thus
16 seeks an award of its attorney's fees incurred in enforcing the Guaranty.
17 WHEREFORE, RCP prays for judgment against Defendants, joint and severally, as
18 follows:
19 1. For general and special damages in excess of the minimum jurisdiction of this
20 Court according to proof;
21 2. For attorneys' fees and costs, as allowed by contract against Defendants;
22 3. For interest and late fees pursuant to the terms of the contract; and,
23 4. For all other relief that this Court deems just and appropriate.
24 DATED: February 11, 2020 SHORELINE, A Law Corporal.ion
25
26 By: -------1-------"----..,.-::=:.---+---- -------'--- -- -
27
/\tl rn ·
RCP HOL II, LLC
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EXHIBIT 1
DocuSign Envelope ID: 4F1A4224-82F6-43A7-A309-0A574F7A35FE
LEASE AGREEMENT
BETWEEN
RCP HOLDINGS II, LLC,
a Delaware limited liability company
("LANDLORD")
and
HARV ARD TUTORS OF BRENTWOOD, LLC,
a California limited liability company
("TENANT")
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LEASE AGREEMENT
This Lease Agreement (this "Lease") is entered into between RCP HOLDINGS II, LLC,
a Delaware limited liability company ("Landlord''), and HARVARD TUTORS OF
BRENTWOOD, LLC, a California limited liability company ("Tenant"), effective as of the date
set forth below Land lord's signature (the "Effective Date").
1. Basic Lease Information. Key business terms used in this Lease are defined as follows:
A. "Building": The building commonly known as 240 26 th Street, Santa Monica,
California 90402, and more particularly described on Exhibit B.
B. "Rentable Square Footage of the Building" is 6,006 rentable square feet, subject to
Landlord's right to re-measure pursuant to Section 2.A below.
C. "Premises": The area shown on Exhibit A to this Lease, located on the second (2 nd)
floor of the Building and known as suite number 2. The "Rentable Square Footage of the
Premises" is 1,582 rentable square feet of space.
D. "Base Rent":
Monthly Rate Monthly
.Months of Term Per Rentablc Square Foot Base Rent
1-12 $9.25 $14,633.50
13-24 $9.53 $] 5,076.46
25-36 $9.81 $15,519.42
37-48 $10.11 $15,994.02
49-60 $10 .41 $16,468.62
61-62 $10 .72 $16,959.04
* Subject to the provisions of Section 4.E. below.
E. "Tenant's Pro Rata Share": Twenty-six and thirty-four one-hundredths percent
(26.34%). Tenant acknowledges that for internal accounting purposes, Landlord may designate a
different Rentable Square Footage of the Premises from time to time, but during the initial Term
only, Tenant shall be deemed to have a 26.34% Tenant's Pro Rata Share for the Premises based on
the Premises being deemed to contain a total of 1,582 rentable square feet.
F. "Term": The period of five (5) years and two (2) full calendar months starting on the
Commencement Date and ending on the Expiration Date, subject to the provisions of Section 2.A.
The first "month" of the Term shall commence on the Commencement Date and end on the last day
of the first full calendar month occurring after the Commencement Date (i.e., the calendar month in
which the Commencement Date occurs if the Commencement Date is the first day of a calendar
month and otherwise the period between the Commencement Date and the last day of the first full
calendar month following the calendar month in which the Commencement Date occurs).
G. "Commencement Date": The date that is 120 days from the Delivery Date (as defined
in Section 2).
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H. "Expiration Date": The last day of the sixty-second (62 11 d) full calendar month
following the Commencement Date, provided, however, to the extent the Commencement Date
occurs on a day other than the first day of a calendar month, then the Expiration Date shall be the
last day of the calendar month in which the sixty-second (62 nd ) anniversary of the Commencement
Date occurs.
I. "Permitted Use": Tenant shall use the Premises solely as a retail office providing
tutoring services and lawfully permitted uses incidental thereto. consistent with a first class mixed
use project.
J. "Security Deposit": $33,918.08.
K. "Parking Pass(es)": Tenant shall have the obligation to lease two (2) unreserved,
undesignated parking passes.
L. "Notice Ad,lresses":
Landlord: Tenant (vrior to Commencement Date):
RCP HOLDINGS II, LLC Harvard Tutors of Brentwood, LLC
c/o Redcar Properties Ltd. 17 I 9 Franklin St., Santa Monica, CA 90404
PO Box 531847 Attn: Anthony Mendez
Los Angeles 90053 Phone#: (239) 315-2539
Attn: Asset Manager Email: contaclus@ harvanltulorsofilaples.com
Phone#: (310) 395-5151
Email: jm(lti,redcarltd. om Tenant (after Comme11cem•nt Date):
At the Premises
Attn: Anthony Mendez
Phone#: (239) 3 I 5-2539
Email: contactl(s«.zharvardtutorsufhaples.com
M. Rent is payable to the order of RCP Holdings II, LLC, as set forth m Section 4.A.
below.
N. "Guarantor": Margaret Jiang, a married woman. Concurrently with Tenant's execution
and delivery of this Lease, and as a condition to the effectiveness hereof, Tenant shall deliver to
Landlord a Guaranty executed by the Guarantor in the form of Exhibit I attached hereto.
In addition to the terms defined above, all capitalized terms used in this Lease shall have the
meanings set forth on Exhibit G or as otherwise expressly set forth in this Lease.
2. Lease Grant. Landlord leases the Premises to Tenant and Tenant leases the Premises from
Landlord, together with the right in common with others to use the Common Areas. Tenant shall
have access to the Premises at all times. 24 hours per day, every day of the year, subject to an
emergency, a requirement by Laws or a specific provision of this Lease. Tenant's use of the
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Common Areas shall be subject to all applicable Law and Regulations and any reasonable, non-
discriminatory rules or regulations affecting other portions of the Project.
A. Rentablc Square Feet. The "rentable square feet" of the Premises and the Building
shall be deemed as set forth in Sections 1.C and 1.B, respectively, above. The rentable square feet
of the Premises and the Building are subject to verification from time to time by Landlord's space
planner/architect and such verification shall be made in accordance with the provisions of this
Section 2.A, provided, however, absent a physical increase or decrease in the size of the Premises,
the Building or the Project, the Rent payable by Tenant shall not change. The determination of
Landlord's space planner/architect shall be conclusive and binding upon the patties. Landlord shall
confirm any such modifications in writing to Tenant.
3. Term; Accepta nce of Premises; Ea1·l y E 11 t1y.
A. Term. The Term of this Lease shall commence on the Commencement Date, and shall
terminate on the Expiration Date, as set forth in Section 1.G, above, unless this Lease is sooner
terminated or extended as hereinafter provided. Landlord will use commercially reasonable efforts
to deliver the Premises to Tenant in the Delivery Date Condition (as defined in Section 3.B) on or
before February 1, 2019 (the "Estimated Delivery Date"). The actual date of delivery of the
Premises to Tenant in the Delivery Date Condition, whether such occurs before or after the
Estimated Delivery Date, shall be referred to herein as the "Delivery Date". If the actual Delivery
Date is delayed beyond the Estimated Delivery Date, such delay shall not be a default by Landlord,
render this Lease void or voidable, or otherwise render Landlord liable for damages and Tenant's
sole and exclusive remedy for any such delay shall be a resulting day for day postponement of the
Delivery Date (and a corresponding day for day postponement of the Commencement Date, i.e., an
increase in the number of days between the Delivery Date and the Commencement Date). If
requested by Landlord within ninety (90) days after the Commencement Date, Tenant shall execute,
within 10 business days of Tenant's receipt, a commencement letter agreement substantially in the
form attached as E xhibit D, failing which Tenant shall be deemed to have agreed with the matters
set forth therein.
B. Acceptance of Premises; Delivery Date Condition . The Premises are accepted by
Tenant in "as is" condition and configuration, subject to the terms and conditions set forth herein.
Tenant agrees that Tenant has approved the condition of the · Premises and the systems and
equipment located in and/or serving the Premises and that the Premises are in good order and
satisfactory condition and that neither Landlord nor Landlord's agents has made any representations
or warranties of any kind, express or implied, regarding the Premises, the Building or the Project
except as specifically set forth in this Lease. Notwithstanding the foregoing, Landlord hereby
represents and warrants to Tenant that as of the Delivery Date, the Premises shall be in the
following condition (the "Delivery Date Condition"): (i) the Premises shall be broom clean, and
(ii) free from any building code violations which would prevent Tenant from commencing the
Tenant Work (as defined in Ex hibit ) or from operating a general retail business from the
Premises.
C. Early Entry. Tenant shall be permitted access to the Premises during the period from
and after the Delivery Date until the Commencement Date ("Early Entry"), subject to the terms and
conditions of this Lease, for the purpose of performing the Tenant Work described in the Work
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Letter, installing furniture, equipment or other personal property. Tenant's access to the Premises
during the period of Early Entry shall be subject to the terms and conditions of this Lease, except
that Tenant shall not be required to pay Base Rent or Tenant's Pro Rata Share of Operating
Expenses during any such days, provided however, Tenant shall pay for parking charges, separately
metered utilities to the Premises, if any, and the cost of any other Building services requested by
Tenant. Prior to any such Early Entry, Tenant shall provide Landlord with certificates of insurance
or other evidence reasonably acceptable to Landlord evidencing Tenant's compliance with its
insurance obligations, and Tenant shall have delivered to Landlord the Security Deposit (as defined
below).
D. Option to Extend. Landlord agrees that so long as Tenant is not in default under the
Lease beyond any applicable notice and cure periods at the time Tenant exercises its option, Tenant
shall have the option to renew the Term of this Lease for the entire Premises for one (I) period of
five (5) years ("Renewal Term"), such Renewal Term shall commence at the expiration of the
initial Term. Tenant shall, if at all, exercise its option to renew (the "Renewal Option") the Term
of the Lease by delivering written notice ("Tenant's Renewal Notice") of such election not earlier
than fifteen ( 15) nor later than twelve ( 12) months prior to the expiration of the Term.
(l) Any renewal of the Lease pursuant to this Section 3.D shall be upon the
same terms and conditions of the Lease, except (i) Tenant shall have no further right to renew this
Lease beyond the Renewal Term, (ii) the Base Rent during the Renewal Term shall be calculated on
the then-current Rentable Square Footage of the Premises and shall be equal to the Market Base
Rental Rate (as defined below) as of the date the Renewal Term commences; provided, however, in
no event shall the Base Rent during the Renewal Term be less than the monthly Base Rent payable
during the last month of the initial Term (as determined on a per square foot basis), and (iii) the
Premises shall be provided in their then-existing condition (on an "as-is" basis) at the time the
Renewal Term commences, without any obligation on the part of Landlord to furnish, install or
modify any leasehold improvements or to provide any allowance or credit therefor.
(2) Landlord shall give Tenant written notice of its good faith determination of
the Market Base Rental Rate for the Renewal Term not later than thi1ty (30) days after Landlord's
receipt of Tenant's Renewal Notice. In the event Tenant disagrees with Landlord's determination
of the Market Base Rental Rate, Landlord and Tenant shall endeavor on a diligent and good-faith
basis to agree upon the Market Base Rental Rate for the Renewal Term within thirty (30) days after
Tenant's receipt of Landlord's written notice. If Landlord and Tenant fail to agree upon the Market
Base Rental Rate by the expiration of such thirty (30) day period (the "Negotiation Periotf'), then
the Market Base Rental Rate shall be determined by arbitration in accordance with this Section
3.D.2. Each of Tenant and Landlord shall, within five (5) business days following the expiration of
the Negotiation Period, appoint a commercial real estate broker, licensed in California and with no
less than ten (I 0) years' experience in leasing retail space in Comparable Buildings (each a
"Qualified Broker"), and provide written notice to the other party specifying the name and address
of the Qualified Broker so chosen. No Qualified Broker may be a former or current employee of
Tenant or Landlord. The two Qualified Brokers shall meet within five (5) business days after the
second Qualified Broker is appointed and together appoint a third neutral Qualified Broker (who
shall not have been retained by Landlord or Tenant or their respective affiliates in the previous ten
(10) years) whose name and address shall be given to Landlord and Tenant. If the two Qualified
Brokers cannot agree on the third Qualified Broker within five (5) business days, then either party,
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by written notice to the other, may request such appointment by JAMS/Endispute. The three
Qualified Brokers shall meet to determine the Market Base Rental Rate within ten (I 0) days after
the third Qualified Broker is appointed. The Qualified Brokers shall, by majority vote, select either
Landlord's determination of Market Base Rental Rate or Tenant's determination of Market Base
Rental Rate, whichever determination the Qualified Brokers decide most closely resembles the
Market Base Rental Rate at the time of such determination. Jn no event shall the Qualified Brokers
have authority to make an independent determination of Market Base Rental Rate. Upon final
determination of the Market Base Rental Rate for the Renewal Term (whether by mutual agreement
of Landlord and Tenant or by determination of the Qualified Brokers, as set forth above), Tenant
and Landlord shall execute a written agreement or acknowledgement confirming such Market Base
Rental Rate; provided, however, notwithstanding any such detennination of the Market Base Rental
Rate, in no event shall the Base Rent during the Renewal Term be less than the monthly Base Rent
payable during the last month of the initial Term. Landlord and Tenant shall each bear all costs and
expenses incurred in connection with their own Qualified Brokers, and Landlord and Tenant shall
each pay fifty percent (50%) of the fees incurred in connection with the third Qualified Broker.
(3) The term "Market Base Rental Rate" shall mean the renewal rental rate then
being charged to tenants for space of comparable size, locations and quality in Comparable
Buildings, fmther taking into consideration the following: the location, quality, and condition of the
Building; the location, size and floor level(s) of the space in question; the definition of "rentable
area"; the extent of leasehold improvements (other than those already installed by Tenant in the
Premises); leasehold improvement allowances; abatements (including, with respect to base rental,
operating expenses and real estate taxes, and parking charges); the inclusion of parking charges in
rental; lease takeovers/assumptions; relocation/moving allowances; space planning/interior
architecture and engineering allowances; refurbishment and repainting allowances; club
memberships; other concessions or inducements; extent of services provided or to be provided;
distinction between "gross," "modified gross" and "net" lease; base year or dollar amount for
escalation purposes (both operating expenses and ad valorem/real estate taxes); any other
adjustments (including by way of indexes) to base rental; credit standing and financial stature of the
tenant; term or length of lease; the time the particular rental rate under consideration was agreed
upon and became or is to become effective; the payment of a leasing commission and/or bonus fees
in lieu thereof, whether to Landlord, any person or entity affiliated with Landlord, or otherwise; and
any other relevant term(s) or condition(s) in making such Market Base Rental Rate determination.
If the Market Base Rental Rate is determined to be lower than the Base Rent for the last month of
the initial Term, then the Base Rent for the last month of the initial Term shall be deemed to be the
Market Base Rental Rate.
(4) Notwithstanding anything to the contrary herein or in this Lease, at
Landlord's option, and in addition to all of Landlord's remedies under this Lease, at law or in
equity, the option to extend the Tenn hereinabove granted to Tenant shall not be deemed to be
properly exercised if, as of the date of Tenant's delivery of the Tenant's Renewal Notice, Tenant is
in default under the Lease beyond any applicable notice and cure period. Jn addition, Tenant's right
to extend the Term is personal to the original Tenant executing this Lease ("Original Tenant") and
any assignee who is an Affiliate or Permitted Successor, and may not be assigned or exercised,
voluntarily or involuntarily, by or to, any other person or entity, and shall only be available to and
exercisable by the Original Tenant (or such Affiliate or Permitted Successor assignee) when the
Original Tenant (or such Affiliate or Permitted Successor assignee) occupies the entire Premises.
-5-
2585239 1 - 22008.0 I 7
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A. Paymcu ts . Base Rent and Landlord's estimate of Tenant's Pro Rata Share of Operating
Expenses shall be due and payable in advance on the first day of each calendar month without
notice, demand or setoff except as otherwise expressly provided herein, provided that the
installment of Base Rent for the first full calendar month of the Term shall be payable upon the
execution of this Lease by Tenant. All other items of Rent shall be due and payable by Tenant on
or before 30 days after billing. Base Rent and Tenant's Pro Rata Share of any Operating Expenses
for a partial month shall be prorated on a daily basis. Tenant's covenant to pay Rent is independent
of every other covenant in this Lease. Until notice of some other designation or electronic wiring
instructions is given to Tenant in accordance with the provisions of Section 26 of this Lease, Base
Rent and all other charges shall be paid by remittance to or for the order of RCP Holdings Tl, LLC
by electronic wire or ACH transfer in accordance with the following electronic wiring instructions
to be provided to Tenant prior to the Commencement Date.
B. Operating Ex penses . On or about January 1 of each calendar year, Landlord shall
provide Tenant with a good faith estimate of Tenant's Pro Rata Share of Operating Expenses for the
coming calendar year. If Landlord determines that its estimate of Tenant's Pro Rata Share of
Operating Expenses was incorrect, Landlord may provide Tenant with a revised estimate, but not
more often than twice per calendar year. Thereafter, Tenant's monthly payments shall be based
upon the revised estimate. If Landlord does not provide such estimate by January I of a calendar
year, Tenant shall pay monthly installments based on the most recent estimate delivered until
Landlord provides Tenant with the new estimate. Landlord shall have the right, from time to time,
to equitably allocate some or all of the Operating Expenses between or among different tenants of
the Project (the "Cost Pools"). Such Cost Pools may include, without limitation, the office space
and/or retail space tenants of the Project. Such Cost Pools may also include an equitable allocation
of certain Operating Expenses within or under covenants, conditions and restrictions affecting the
Project. In addition, Landlord shall have the right from time to time, in its reasonable discretion, to
include or exclude (acting equitably) existing or future square footage or buildings in the Project for
purposes of determining Operating Expenses and/or the provision of various services and amenities
thereto in any such Cost Pools.
(1) Allocation of Ope rati ng F.-xpcnscs to Building. The parties acknowledge
that the Building is part of a multi-building commercial project consisting of the Building and the
Other Buildings and such other buildings in the Project as Landlord may elect to construct and
include as part of the Project from time to time (to be included within the definition of "Other
Buildings" once constructed) and that certain of the costs and expenses incurred in connection with
the Project (i.e. the Operating Expenses) as reasonably determined by Landlord shall be shared
among the Building and such Other Buildings, while certain other costs and expenses which are
solely attributable to the Building or any such Other Buildings, as applicable, shall be allocated
directly to the Building or any such Other Buildings, respectively. Accordingly, as set forth in
Section 4(B), above, some Operating Expenses shall be determined annually for the Project as a
whole (with the Building being allocated its percentage share of such expenses), with a portion of
such Operating Expenses to be allocated to the Building as determined by Landlord on an equitable
basis and some of the Operating Expenses, which portion shall be determined by Landlord on an
equitable basis, shall be allocated only to the Building (as opposed to being allocated collectively to
the Building and the Other Buildings) and all such po11ions so allocated to the Building shall be the
-6-
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amount of Operating Expenses payable with respect to the Building upon which Tenant's Pro Rata
Share shall be calculated.
C. Reconciliation of Operating E. penses. As soon as practicable after the end of each
calendar year, Landlord shall furnish Tenant with a statement of the actual Operating Expenses for
such calendar year. If the estimated Tenant's Pro Rata Share of Operating Expenses allocated to the
Building or Project, as the case may be, pursuant to Section 4(B), above, paid by Tenant are less
than the actual Tenant's Pro Rata Share of Operating Expenses for such calendar year, Tenant shall
pay the difference to Landlord within 30 days after demand, and if such estimated Operating
Expenses are more than actual, Tenant shall receive a credit for the difference against Rent next
due, or, if no further Rent is due, refund such overage within 30 days following Landlord's
determination thereof. Notwithstanding the immediately preceding sentence, Tenant shall not be
responsible for Tenant's Pro Rata Share of any Operating Expenses attributable to any calendar year
which are first billed to Tenant more than two (2) calendar years after the earlier of the expiration of
the applicable calendar year or the Expiration Date, provided that in any event Tenant shall be
responsible for Tenant's Pro Rata Share of Operating Expenses levied by any governmental
authority or by any public utility companies at any time, including following the Expiration Date,
which are attributable to any calendar year (provided that Landlord delivers Tenant a bill for such
amounts within two (2) years following Landlord's receipt of the bill therefor).
D. Adjustment. If the Building is not I 00% occupied during any full or partial calendar
year or if Landlord is not supplying services to 100% of the total Rentable Square Footage of the
Building during a full or partial calendar year, Operating Expenses for such calendar year shall be
determined as if the Building had been 100% occupied and Landlord had been supplying services to
100% of the Rentable Square Footage of the Building during that period.
E. Abatement of Base Rent. Notwithstanding anything to the contrary contained herein,
provided Tenant is not in default under the Lease beyond any applicable notice and cure period,
Landlord hereby agrees to abate Tenant's obligation to pay monthly Base Rent for the Premises for
the second (2 nd ) and third (3 rd ) full calendar months of the Tenn (collectively, the "Abated Rent").
During such abatement period, Tenant shall remain responsible for the payment of all of its other
monetary obligations under this Lease, including without limitation, Tenant's Pro Rata Share of
Operating Expenses, parking charges and any other Building services requested by Tenant (e.g.
utilities, janitorial, HVAC). Jn the event Landlord terminates this Lease due to default by Tenant
under the terms of this Lease beyond any applicable notice and cure period, then as a part of the
recovery set forth in Section 19 of this Lease, Landlord shall be entitled to recover the unamortized
amount of the Abated Rent (amortized over the Original Term).
F. Landlord's Right to Purchase the Abated Rent. Upon notice to Tenant, Landlord
may deliver to Tenant the value of any Abated Rent which Tenant has not yet enjoyed ("Abated
Rent Purchase Price") by paying such amount to Tenant in cash or by check. Upon such payment
of the Abated Rent Purchase Price by Landlord., the provisions of Section 4.E of this Lease shall be
deleted and of no further force or effect.
G. Audit Righ
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
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20SMCV00235 Assigned for all purposes to: Santa Monica Courthouse, Judicial Officer: Elaine Mandel ~ SHORELINE Electronically FILED by Superior Court of California, County of Los Angeles on 02/13/2020 12:00 AM Sherri R. Carter, Executive Officer/Clerk of Court, by B. McClendon,Deputy Clerk 1 SH RELINE, A Law rporation ANDREW .I . HALEY SBN 202 00) 2 1299 Ocean Avenue, Suite 400 Santa Monica, California 90401-1007 3 Tel phone: (310) 451-8001 Fae imile: (310) 395-5961 4 ahaley@shoreline-law.com 5 Attorneys for Plaintiff RCP HOLDINGS II, LLC 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF LOS ANGELES - WEST DISTRICT 10 SANTA MONICA COURTHOUSE 11 12 RCP HOLDINGS II, LLC, a Delaware Case No. 13 limited liability company COMPLAINT FOR DAMAGES FOR: 14 Plaintiffs, 1. BREACH OF WRITTEN LEASE; 15 v. and 2. BREACH OF GUARANTY OF 16 HARVARD TUTORS OF BRENTWOOD, LEASE LLC, a California limited liability company; 17 EID IA SANTA MONICA STUDIO 0001 LLC, a California limited liability company; 18 ALEXANDER AND ARISTOTLE BRENTWOOD STUDIO 001 LLC, a 19 alilornia limited liability compan ; MARGARET JIANG an indi 1dual, and 20 DOES 1-20, inclusive, 21 Defendants. 22 Plaintiff RCP Holdings II, LLC ("RCP") makes the following allegations for its 24 Complaint against defendants. 25 THE PARTIES 26 1. RCP is a Delaware limited liability company and is the owner of an office 27 building located at 240 26 th Street, Santa Monica, California 90402 (the "Building"). 28 2. Defendant Harvard Tutors of Brentwood, LLC ("Tenant") is a California COMPLAINT 2843539 I - 22008.097 .. SHORELINE 1 limited liability ompany doing business in lhc County of Los Angeles, Stat' of Cal ifornia . 2 /\s alle > d forth ~r b low, Tenant lea ed premis from RCP c nsisting r I. 'i82 r ·ntabk 3 quan.: re ·L n the cc nd floor flh Building and I nown a: SuiL · 2 (lhe "Premise·"). 4 3. cfondant Alexander And ArislotJ Brcntwo d Studio )0 I LL (' /\l xandcr"·) 5 is a ~aUfornia l.imit ·d liability company and is believed to be cl ing busine ·s in lhe C mnl 6 o[ Lo · Angeles Stat of Califi rnia. RCP i informed and belie es and based lher on al leg ·s 7 tln.l Alexander i' the alter-ego of Tenant. 8 4. o,f.,ndant Eidia anla Monica tudio 0001 L --Eidi a '), is a alil' m,ia 9 limited li ahilit compan and is b-licved t be doing busin~ss in th Count ol'Los /\n°cl~s. 10 , tall! of alifomia. R [-> is inform ·d and belie i.:s and ba ·cd lber on alleges that L.: idia is the 11 aJt r-eg of T nant. 12 5. Defendant Margaret Jiang 'Guarantor' ) i an individual d ing busin ·ss in and 13 b lieved to be r siding in the aunty o[ Los Angel ~s State of alifornia . RCP is i.nfwrn d 14 and belie cs and based U1 reon allege that Guarantor is a memb >r >f' Tenant. As alleged 15 below. Guarun tor signed a wrilt -n Guarant of L ~as . 16 6. Defendant designated as Does 1 to 20 are unknown to R P wh therefore ucs 17 tho c defendants by uch fictitious names. R P will ·eek leave to amend U1is omphint to s t 18 forth their true names and capacitie wh -n tl1ey have b en ascertained. RCP is informed und 19 beli that at all times p rtinent Doe 1-5 hav1;; been U1e alter-eg of' ·r ·nant b cause: a Lher • 20 has · xisted uch a unit of intere t and own rship between them· (b) Tenant is a sh -ll entity that 21 is cnnlrolled dominat d and used by D cs 1-5 r r th onduct or ils business s lei as a d ·vice l a id pers nal liability; (c) Tenant do 'S not operate scparal ' iy from the business condu Led 22 by Docs 1-5; d) the scparatenes · of Tenant and Does 1-5 did not exi t during the leasing Lhul is 23 U,c subject of this action; (e) Tenant has not observed or followed coqmrat--- frm11alitics; (f) 24 assets of Tenant nre (or were) commingled with those of Docs 1-5; and/or (g) Tenant was and is 25 undcrcapitaliz d. Any indi idualily and separateness betwe n Tenant and Docs 1-5 has ccas cl 26 and each f lh "ID is th all reg of the ther. Adherence l the fiction of separat e, isten · · or 27 Tenant and Doe· 1-5 ,,vould permit an abu ·e of an privi lege afforded trul separate pcrs ns 28 2 COMPLAINT 2843539.1 - 22008.097 .. SHORELINE 1 and entities and would sanction fraud and promote injustice in that Does 1-5 may seek to 1 immunize themselves from liability for certain of Tenant's actions, which caused the damages _ sustained by RCP. 4 THE LEASE 5 7. In or about December 2018, RCP and Tenant entered into a written Lease 0 Agreement (the "Lease") for the Premises. A true copy of the Lease is attached as Exhibit l. 7 8. On or about December 21, 2018, Guarantor executed a written Guaranty of the s Lease (the "Guaranty"). A true copy of the Guaranty is attached as Exhibit 2. 9 9. The Lease commenced on June 21, 2019 for a term of 62 months. A true copy 1o of the Commencement Letter is attached as Exhibit 3. 11 10. Public records show that on or about August 30, 2019, Margaret Jiang (the 12 Guarantor), formed two new limited liability companies: defendants Alexander and Eidia. In 13 the Articles of Organization for Alexander, Ms. Jiang listed the business address for 111 Alexander as being the subject Premises that had been leased by Tenant. Ms. Jiang listed the 15 mailing address for Alexander as being 2425 Olympic Blvd, Suite 4000W #23, Santa 16 Monica, California - which is the same mailing address as listed in the Articles of 17 Organization for Eidia. Ms. Jiang's husband, Anthony Mendez, is further listed on Harvard 1s Alumni networking rosters as being the Managing Director for Eidia. 19 11. Four days before filing of the above referenced Articles of Organization, :rn Anthony Mendez sent an email to RCP's representatives bearing a subject line reading 21 "Introduction to our new company." The email stated in part: "I'd like to introduce you to 22 our new company: Alexander and Aristotle. Harvard Tutors of Brentwood LLC will no JJ longer be active or used for any matters, and the new brand will be the one we will interact 24 with you through." Mr. Mendes even requested that "On existing exterior signage containing 25 'Harvard Tutors' could you please change to the new company ... " 26 12. A web search for Harvard Tutors shows that there is an affiliated entity called 27 Harvard Tutors of Naples, which apparently was the original company founded out of 28 Florida. The web search redirects the searcher to the web page for Eidia, where the home 3 COMPLAINT 2843539. I - 22008 097 ~ SHORELINE 1 page states: "New Name, Same Commitment to Results." The home page further states that 2 Harvard Tutors is "proud to continue ... now under the banner and resources of a national 3 leader in college admissions and academic tutoring, Eidia." 4 BREACHES OF THE LEASE AND GUARANTY 5 13. Base rent is payable on the first of each month. Tenant breached the Lease by 6 failing to pay monthly base rent of $14,633.50 for the Premises commencing in August 1, 7 2019 1 and continuing thereafter. 8 14. Additional unpaid operating expenses and late fees are due for the months 9 commencing on and after June 1, 2019. 15. Guarantor breached her Guaranty by failing and refusing to pay the amounts 11 owed by Tenant to RCP which were guaranteed by her. 12 16. On or about January 17, 2020, RCP served a Five-Day Notice to Pay or Quit 13 on Tenant. 14 17. In response, on or about January 21, 2020, Tenant vacated the Premises and 15 returned possession of the Premises to RCP. 16 18. As of January 31, 2020, Tenant owes to RCP damages for, among other things: 17 unpaid base rent, operating expenses, late fees, parking and leasing commissions. RCP's 18 damages are in excess of $219,212.00 and continue to accrue each month; plus interest. The 19 foregoing amount includes the unamortized amount of Abated Rent, which damage remedy 20 is provided for in Section 4.E. of the Lease. 21 FIRST CAUSE OF ACTION 22 (Breach of Written Lease against Tenant, Eidia, Alexander and Does 1-10) 23 19. RCP realleges and incorporates by reference each and every allegation set forth 24 25 1 The Lease called for abatement of base rent for the second and third months of the Lease (which were July and August 2019 . However, Tenant did not pay base rent for the first 26 rn o nLh of the Lease (whi ch was Jun 2019). Pursuant to an email exchange between Tenant and R P, RCP agre d to apply the abatem nt earlier (i.e., towards the June 2019 base rent), 27 sm.: h (hat Tenant s base rent abatement would be for the first and second months rather than the second and third months of the Lease. Accordingly, Tenant was required to commence 28 paying base rent on _A ugust 1, 2019. 4 COMPLAINT 2843539. 1 - 22008.097 ~ SHORELINE hereinabove. 2 20. RCP performed all obligations on its part to be performed under the Lease. 3 21. The consideration for the Lease is adequate and the terms of the Lease are just 4 and reasonable. 5 22. Tenant and Does 1-10 breached the Lease by failing to pay to RCP the base 6 rent and other monetary amounts due under the Lease (collectively, the "Rent") as alleged 7 above. 8 23. The Lease provides at Section 19 .B that RCP shall recover damages equal to 9 the sum of the following: "(a) all Rent accrued through the end of the month in which the Io termination becomes effective; (b) interest on all unpaid Rent from the date due at a rate 11 equal to the lesser of 12% per annum or the highest interest rate permitted by applicable 12 Law; (c) all expenses reasonably incurred by Landlord in enforcing its rights and remedies 13 under this Lease, including all reasonable legal expenses; (d) Costs of Reletting; and (e) all 14 Landlord's Rental Damages. In the event that Landlord relets the Premises for an amount 15 greater than the Rent due during the Term, Tenant shall not receive a credit for any such 16 excess." 17 24. As a proximate result of the breach of the Lease by Tenant and Does 1-10, 18 RCP has suffered damages in excess of$219,212.00 through January 31, 2020; plus interest; 19 plus damages that continue to accrue each month, all according to proof. 20 25. The Lease contains a prevailing party attorneys' fees provision at Section 25. 21 Due to Tenant's breach of the Lease, RCP has been forced to retain attorneys to represent it 22 and has incurred, and will continue to incur, attorneys' fees and costs. Accordingly, RCP 23 also seeks an award of its attorneys' fees and costs. 24 26. RCP is informed and believes and based thereon alleges that Tenant, Eidia and 25 Alexander are alter-egos of each other, and, accordingly, Eidia and Alexander are liable to 26 the full extent of the liability of Tenant on the obligations under the Lease. 27 28 5 COMPLAINT 2843539. 1 - 22008 .097 .._ SHORELINE SECOND CAUSE OF ACTION 2 (Breach of Written Guaranty against Guarantor and Does 11-20) 3 27. RCP realleges and incorporates by reference each and every allegation set forth 4 hereinabove. 5 28. RCP performed all obligations on its part to be performed under the Lease and 6 Guaranty. 7 29. The consideration for the Lease and Guaranty are adequate and the terms are 8 just and reasonable. 9 30. Guarantor and Does 11-20 breached the Guaranty by failing to pay to RCP the 1o Rent and all other sums due under the Lease that are guaranteed by the Guaranty as alleged 11 above. 12 31. As a proximate result of the breach of the Guaranty by Guarantor and Does 11- 13 20, RCP has suffered damages in excess of $219,212.00 through January 31, 2020; plus 14 interest; plus damages that continue to accrue each month, all according to proof. 15 32. The Guaranty contains a prevailing party attorney's fees provision. RCP thus 16 seeks an award of its attorney's fees incurred in enforcing the Guaranty. 17 WHEREFORE, RCP prays for judgment against Defendants, joint and severally, as 18 follows: 19 1. For general and special damages in excess of the minimum jurisdiction of this 20 Court according to proof; 21 2. For attorneys' fees and costs, as allowed by contract against Defendants; 22 3. For interest and late fees pursuant to the terms of the contract; and, 23 4. For all other relief that this Court deems just and appropriate. 24 DATED: February 11, 2020 SHORELINE, A Law Corporal.ion 25 26 By: -------1-------"----..,.-::=:.---+---- -------'--- -- - 27 /\tl rn · RCP HOL II, LLC 28 6 COMPLAINT 2843539.1 - 22008 097 EXHIBIT 1 DocuSign Envelope ID: 4F1A4224-82F6-43A7-A309-0A574F7A35FE LEASE AGREEMENT BETWEEN RCP HOLDINGS II, LLC, a Delaware limited liability company ("LANDLORD") and HARV ARD TUTORS OF BRENTWOOD, LLC, a California limited liability company ("TENANT") 2585239 I - 22008017 DocuSign Envelope ID: 4F1A4224-82F6-43A7-A309-0A574F7A35FE LEASE AGREEMENT This Lease Agreement (this "Lease") is entered into between RCP HOLDINGS II, LLC, a Delaware limited liability company ("Landlord''), and HARVARD TUTORS OF BRENTWOOD, LLC, a California limited liability company ("Tenant"), effective as of the date set forth below Land lord's signature (the "Effective Date"). 1. Basic Lease Information. Key business terms used in this Lease are defined as follows: A. "Building": The building commonly known as 240 26 th Street, Santa Monica, California 90402, and more particularly described on Exhibit B. B. "Rentable Square Footage of the Building" is 6,006 rentable square feet, subject to Landlord's right to re-measure pursuant to Section 2.A below. C. "Premises": The area shown on Exhibit A to this Lease, located on the second (2 nd) floor of the Building and known as suite number 2. The "Rentable Square Footage of the Premises" is 1,582 rentable square feet of space. D. "Base Rent": Monthly Rate Monthly .Months of Term Per Rentablc Square Foot Base Rent 1-12 $9.25 $14,633.50 13-24 $9.53 $] 5,076.46 25-36 $9.81 $15,519.42 37-48 $10.11 $15,994.02 49-60 $10 .41 $16,468.62 61-62 $10 .72 $16,959.04 * Subject to the provisions of Section 4.E. below. E. "Tenant's Pro Rata Share": Twenty-six and thirty-four one-hundredths percent (26.34%). Tenant acknowledges that for internal accounting purposes, Landlord may designate a different Rentable Square Footage of the Premises from time to time, but during the initial Term only, Tenant shall be deemed to have a 26.34% Tenant's Pro Rata Share for the Premises based on the Premises being deemed to contain a total of 1,582 rentable square feet. F. "Term": The period of five (5) years and two (2) full calendar months starting on the Commencement Date and ending on the Expiration Date, subject to the provisions of Section 2.A. The first "month" of the Term shall commence on the Commencement Date and end on the last day of the first full calendar month occurring after the Commencement Date (i.e., the calendar month in which the Commencement Date occurs if the Commencement Date is the first day of a calendar month and otherwise the period between the Commencement Date and the last day of the first full calendar month following the calendar month in which the Commencement Date occurs). G. "Commencement Date": The date that is 120 days from the Delivery Date (as defined in Section 2). - 1- 2585239 1 - 22008017 DocuSign Envelope ID: 4F1A4224-82F6-43A7-A309-0A574F7A35FE H. "Expiration Date": The last day of the sixty-second (62 11 d) full calendar month following the Commencement Date, provided, however, to the extent the Commencement Date occurs on a day other than the first day of a calendar month, then the Expiration Date shall be the last day of the calendar month in which the sixty-second (62 nd ) anniversary of the Commencement Date occurs. I. "Permitted Use": Tenant shall use the Premises solely as a retail office providing tutoring services and lawfully permitted uses incidental thereto. consistent with a first class mixed use project. J. "Security Deposit": $33,918.08. K. "Parking Pass(es)": Tenant shall have the obligation to lease two (2) unreserved, undesignated parking passes. L. "Notice Ad,lresses": Landlord: Tenant (vrior to Commencement Date): RCP HOLDINGS II, LLC Harvard Tutors of Brentwood, LLC c/o Redcar Properties Ltd. 17 I 9 Franklin St., Santa Monica, CA 90404 PO Box 531847 Attn: Anthony Mendez Los Angeles 90053 Phone#: (239) 315-2539 Attn: Asset Manager Email: contaclus@ harvanltulorsofilaples.com Phone#: (310) 395-5151 Email: jm(lti,redcarltd. om Tenant (after Comme11cem•nt Date): At the Premises Attn: Anthony Mendez Phone#: (239) 3 I 5-2539 Email: contactl(s«.zharvardtutorsufhaples.com M. Rent is payable to the order of RCP Holdings II, LLC, as set forth m Section 4.A. below. N. "Guarantor": Margaret Jiang, a married woman. Concurrently with Tenant's execution and delivery of this Lease, and as a condition to the effectiveness hereof, Tenant shall deliver to Landlord a Guaranty executed by the Guarantor in the form of Exhibit I attached hereto. In addition to the terms defined above, all capitalized terms used in this Lease shall have the meanings set forth on Exhibit G or as otherwise expressly set forth in this Lease. 2. Lease Grant. Landlord leases the Premises to Tenant and Tenant leases the Premises from Landlord, together with the right in common with others to use the Common Areas. Tenant shall have access to the Premises at all times. 24 hours per day, every day of the year, subject to an emergency, a requirement by Laws or a specific provision of this Lease. Tenant's use of the -2- 2585239 I - 22008017 DocuSign Envelope ID: 4F1A4224-82F6-43A7-A309-0A574F7A35FE Common Areas shall be subject to all applicable Law and Regulations and any reasonable, non- discriminatory rules or regulations affecting other portions of the Project. A. Rentablc Square Feet. The "rentable square feet" of the Premises and the Building shall be deemed as set forth in Sections 1.C and 1.B, respectively, above. The rentable square feet of the Premises and the Building are subject to verification from time to time by Landlord's space planner/architect and such verification shall be made in accordance with the provisions of this Section 2.A, provided, however, absent a physical increase or decrease in the size of the Premises, the Building or the Project, the Rent payable by Tenant shall not change. The determination of Landlord's space planner/architect shall be conclusive and binding upon the patties. Landlord shall confirm any such modifications in writing to Tenant. 3. Term; Accepta nce of Premises; Ea1·l y E 11 t1y. A. Term. The Term of this Lease shall commence on the Commencement Date, and shall terminate on the Expiration Date, as set forth in Section 1.G, above, unless this Lease is sooner terminated or extended as hereinafter provided. Landlord will use commercially reasonable efforts to deliver the Premises to Tenant in the Delivery Date Condition (as defined in Section 3.B) on or before February 1, 2019 (the "Estimated Delivery Date"). The actual date of delivery of the Premises to Tenant in the Delivery Date Condition, whether such occurs before or after the Estimated Delivery Date, shall be referred to herein as the "Delivery Date". If the actual Delivery Date is delayed beyond the Estimated Delivery Date, such delay shall not be a default by Landlord, render this Lease void or voidable, or otherwise render Landlord liable for damages and Tenant's sole and exclusive remedy for any such delay shall be a resulting day for day postponement of the Delivery Date (and a corresponding day for day postponement of the Commencement Date, i.e., an increase in the number of days between the Delivery Date and the Commencement Date). If requested by Landlord within ninety (90) days after the Commencement Date, Tenant shall execute, within 10 business days of Tenant's receipt, a commencement letter agreement substantially in the form attached as E xhibit D, failing which Tenant shall be deemed to have agreed with the matters set forth therein. B. Acceptance of Premises; Delivery Date Condition . The Premises are accepted by Tenant in "as is" condition and configuration, subject to the terms and conditions set forth herein. Tenant agrees that Tenant has approved the condition of the · Premises and the systems and equipment located in and/or serving the Premises and that the Premises are in good order and satisfactory condition and that neither Landlord nor Landlord's agents has made any representations or warranties of any kind, express or implied, regarding the Premises, the Building or the Project except as specifically set forth in this Lease. Notwithstanding the foregoing, Landlord hereby represents and warrants to Tenant that as of the Delivery Date, the Premises shall be in the following condition (the "Delivery Date Condition"): (i) the Premises shall be broom clean, and (ii) free from any building code violations which would prevent Tenant from commencing the Tenant Work (as defined in Ex hibit ) or from operating a general retail business from the Premises. C. Early Entry. Tenant shall be permitted access to the Premises during the period from and after the Delivery Date until the Commencement Date ("Early Entry"), subject to the terms and conditions of this Lease, for the purpose of performing the Tenant Work described in the Work -3- 2585239 , 1 - 22008 ,017 DocuSign Envelope ID: 4F1A4224-82F6-43A7-A309-0A574F7A35FE Letter, installing furniture, equipment or other personal property. Tenant's access to the Premises during the period of Early Entry shall be subject to the terms and conditions of this Lease, except that Tenant shall not be required to pay Base Rent or Tenant's Pro Rata Share of Operating Expenses during any such days, provided however, Tenant shall pay for parking charges, separately metered utilities to the Premises, if any, and the cost of any other Building services requested by Tenant. Prior to any such Early Entry, Tenant shall provide Landlord with certificates of insurance or other evidence reasonably acceptable to Landlord evidencing Tenant's compliance with its insurance obligations, and Tenant shall have delivered to Landlord the Security Deposit (as defined below). D. Option to Extend. Landlord agrees that so long as Tenant is not in default under the Lease beyond any applicable notice and cure periods at the time Tenant exercises its option, Tenant shall have the option to renew the Term of this Lease for the entire Premises for one (I) period of five (5) years ("Renewal Term"), such Renewal Term shall commence at the expiration of the initial Term. Tenant shall, if at all, exercise its option to renew (the "Renewal Option") the Term of the Lease by delivering written notice ("Tenant's Renewal Notice") of such election not earlier than fifteen ( 15) nor later than twelve ( 12) months prior to the expiration of the Term. (l) Any renewal of the Lease pursuant to this Section 3.D shall be upon the same terms and conditions of the Lease, except (i) Tenant shall have no further right to renew this Lease beyond the Renewal Term, (ii) the Base Rent during the Renewal Term shall be calculated on the then-current Rentable Square Footage of the Premises and shall be equal to the Market Base Rental Rate (as defined below) as of the date the Renewal Term commences; provided, however, in no event shall the Base Rent during the Renewal Term be less than the monthly Base Rent payable during the last month of the initial Term (as determined on a per square foot basis), and (iii) the Premises shall be provided in their then-existing condition (on an "as-is" basis) at the time the Renewal Term commences, without any obligation on the part of Landlord to furnish, install or modify any leasehold improvements or to provide any allowance or credit therefor. (2) Landlord shall give Tenant written notice of its good faith determination of the Market Base Rental Rate for the Renewal Term not later than thi1ty (30) days after Landlord's receipt of Tenant's Renewal Notice. In the event Tenant disagrees with Landlord's determination of the Market Base Rental Rate, Landlord and Tenant shall endeavor on a diligent and good-faith basis to agree upon the Market Base Rental Rate for the Renewal Term within thirty (30) days after Tenant's receipt of Landlord's written notice. If Landlord and Tenant fail to agree upon the Market Base Rental Rate by the expiration of such thirty (30) day period (the "Negotiation Periotf'), then the Market Base Rental Rate shall be determined by arbitration in accordance with this Section 3.D.2. Each of Tenant and Landlord shall, within five (5) business days following the expiration of the Negotiation Period, appoint a commercial real estate broker, licensed in California and with no less than ten (I 0) years' experience in leasing retail space in Comparable Buildings (each a "Qualified Broker"), and provide written notice to the other party specifying the name and address of the Qualified Broker so chosen. No Qualified Broker may be a former or current employee of Tenant or Landlord. The two Qualified Brokers shall meet within five (5) business days after the second Qualified Broker is appointed and together appoint a third neutral Qualified Broker (who shall not have been retained by Landlord or Tenant or their respective affiliates in the previous ten (10) years) whose name and address shall be given to Landlord and Tenant. If the two Qualified Brokers cannot agree on the third Qualified Broker within five (5) business days, then either party, -4- 2585239 l - 22008 Ol 7 DocuSign Envelope ID: 4F1A4224-82F6-43A7-A309-0A574F7A35FE by written notice to the other, may request such appointment by JAMS/Endispute. The three Qualified Brokers shall meet to determine the Market Base Rental Rate within ten (I 0) days after the third Qualified Broker is appointed. The Qualified Brokers shall, by majority vote, select either Landlord's determination of Market Base Rental Rate or Tenant's determination of Market Base Rental Rate, whichever determination the Qualified Brokers decide most closely resembles the Market Base Rental Rate at the time of such determination. Jn no event shall the Qualified Brokers have authority to make an independent determination of Market Base Rental Rate. Upon final determination of the Market Base Rental Rate for the Renewal Term (whether by mutual agreement of Landlord and Tenant or by determination of the Qualified Brokers, as set forth above), Tenant and Landlord shall execute a written agreement or acknowledgement confirming such Market Base Rental Rate; provided, however, notwithstanding any such detennination of the Market Base Rental Rate, in no event shall the Base Rent during the Renewal Term be less than the monthly Base Rent payable during the last month of the initial Term. Landlord and Tenant shall each bear all costs and expenses incurred in connection with their own Qualified Brokers, and Landlord and Tenant shall each pay fifty percent (50%) of the fees incurred in connection with the third Qualified Broker. (3) The term "Market Base Rental Rate" shall mean the renewal rental rate then being charged to tenants for space of comparable size, locations and quality in Comparable Buildings, fmther taking into consideration the following: the location, quality, and condition of the Building; the location, size and floor level(s) of the space in question; the definition of "rentable area"; the extent of leasehold improvements (other than those already installed by Tenant in the Premises); leasehold improvement allowances; abatements (including, with respect to base rental, operating expenses and real estate taxes, and parking charges); the inclusion of parking charges in rental; lease takeovers/assumptions; relocation/moving allowances; space planning/interior architecture and engineering allowances; refurbishment and repainting allowances; club memberships; other concessions or inducements; extent of services provided or to be provided; distinction between "gross," "modified gross" and "net" lease; base year or dollar amount for escalation purposes (both operating expenses and ad valorem/real estate taxes); any other adjustments (including by way of indexes) to base rental; credit standing and financial stature of the tenant; term or length of lease; the time the particular rental rate under consideration was agreed upon and became or is to become effective; the payment of a leasing commission and/or bonus fees in lieu thereof, whether to Landlord, any person or entity affiliated with Landlord, or otherwise; and any other relevant term(s) or condition(s) in making such Market Base Rental Rate determination. If the Market Base Rental Rate is determined to be lower than the Base Rent for the last month of the initial Term, then the Base Rent for the last month of the initial Term shall be deemed to be the Market Base Rental Rate. (4) Notwithstanding anything to the contrary herein or in this Lease, at Landlord's option, and in addition to all of Landlord's remedies under this Lease, at law or in equity, the option to extend the Tenn hereinabove granted to Tenant shall not be deemed to be properly exercised if, as of the date of Tenant's delivery of the Tenant's Renewal Notice, Tenant is in default under the Lease beyond any applicable notice and cure period. Jn addition, Tenant's right to extend the Term is personal to the original Tenant executing this Lease ("Original Tenant") and any assignee who is an Affiliate or Permitted Successor, and may not be assigned or exercised, voluntarily or involuntarily, by or to, any other person or entity, and shall only be available to and exercisable by the Original Tenant (or such Affiliate or Permitted Successor assignee) when the Original Tenant (or such Affiliate or Permitted Successor assignee) occupies the entire Premises. -5- 2585239 1 - 22008.0 I 7 DocuSign Envelope ID: 4F1A4224-82F6-43A7-A309-0A574F7A35FE A. Paymcu ts . Base Rent and Landlord's estimate of Tenant's Pro Rata Share of Operating Expenses shall be due and payable in advance on the first day of each calendar month without notice, demand or setoff except as otherwise expressly provided herein, provided that the installment of Base Rent for the first full calendar month of the Term shall be payable upon the execution of this Lease by Tenant. All other items of Rent shall be due and payable by Tenant on or before 30 days after billing. Base Rent and Tenant's Pro Rata Share of any Operating Expenses for a partial month shall be prorated on a daily basis. Tenant's covenant to pay Rent is independent of every other covenant in this Lease. Until notice of some other designation or electronic wiring instructions is given to Tenant in accordance with the provisions of Section 26 of this Lease, Base Rent and all other charges shall be paid by remittance to or for the order of RCP Holdings Tl, LLC by electronic wire or ACH transfer in accordance with the following electronic wiring instructions to be provided to Tenant prior to the Commencement Date. B. Operating Ex penses . On or about January 1 of each calendar year, Landlord shall provide Tenant with a good faith estimate of Tenant's Pro Rata Share of Operating Expenses for the coming calendar year. If Landlord determines that its estimate of Tenant's Pro Rata Share of Operating Expenses was incorrect, Landlord may provide Tenant with a revised estimate, but not more often than twice per calendar year. Thereafter, Tenant's monthly payments shall be based upon the revised estimate. If Landlord does not provide such estimate by January I of a calendar year, Tenant shall pay monthly installments based on the most recent estimate delivered until Landlord provides Tenant with the new estimate. Landlord shall have the right, from time to time, to equitably allocate some or all of the Operating Expenses between or among different tenants of the Project (the "Cost Pools"). Such Cost Pools may include, without limitation, the office space and/or retail space tenants of the Project. Such Cost Pools may also include an equitable allocation of certain Operating Expenses within or under covenants, conditions and restrictions affecting the Project. In addition, Landlord shall have the right from time to time, in its reasonable discretion, to include or exclude (acting equitably) existing or future square footage or buildings in the Project for purposes of determining Operating Expenses and/or the provision of various services and amenities thereto in any such Cost Pools. (1) Allocation of Ope rati ng F.-xpcnscs to Building. The parties acknowledge that the Building is part of a multi-building commercial project consisting of the Building and the Other Buildings and such other buildings in the Project as Landlord may elect to construct and include as part of the Project from time to time (to be included within the definition of "Other Buildings" once constructed) and that certain of the costs and expenses incurred in connection with the Project (i.e. the Operating Expenses) as reasonably determined by Landlord shall be shared among the Building and such Other Buildings, while certain other costs and expenses which are solely attributable to the Building or any such Other Buildings, as applicable, shall be allocated directly to the Building or any such Other Buildings, respectively. Accordingly, as set forth in Section 4(B), above, some Operating Expenses shall be determined annually for the Project as a whole (with the Building being allocated its percentage share of such expenses), with a portion of such Operating Expenses to be allocated to the Building as determined by Landlord on an equitable basis and some of the Operating Expenses, which portion shall be determined by Landlord on an equitable basis, shall be allocated only to the Building (as opposed to being allocated collectively to the Building and the Other Buildings) and all such po11ions so allocated to the Building shall be the -6- 2585239 1 - 22008 0 I 7 DocuSign Envelope ID: 4F1A4224-82F6-43A7-A309-0A574F7A35FE amount of Operating Expenses payable with respect to the Building upon which Tenant's Pro Rata Share shall be calculated. C. Reconciliation of Operating E. penses. As soon as practicable after the end of each calendar year, Landlord shall furnish Tenant with a statement of the actual Operating Expenses for such calendar year. If the estimated Tenant's Pro Rata Share of Operating Expenses allocated to the Building or Project, as the case may be, pursuant to Section 4(B), above, paid by Tenant are less than the actual Tenant's Pro Rata Share of Operating Expenses for such calendar year, Tenant shall pay the difference to Landlord within 30 days after demand, and if such estimated Operating Expenses are more than actual, Tenant shall receive a credit for the difference against Rent next due, or, if no further Rent is due, refund such overage within 30 days following Landlord's determination thereof. Notwithstanding the immediately preceding sentence, Tenant shall not be responsible for Tenant's Pro Rata Share of any Operating Expenses attributable to any calendar year which are first billed to Tenant more than two (2) calendar years after the earlier of the expiration of the applicable calendar year or the Expiration Date, provided that in any event Tenant shall be responsible for Tenant's Pro Rata Share of Operating Expenses levied by any governmental authority or by any public utility companies at any time, including following the Expiration Date, which are attributable to any calendar year (provided that Landlord delivers Tenant a bill for such amounts within two (2) years following Landlord's receipt of the bill therefor). D. Adjustment. If the Building is not I 00% occupied during any full or partial calendar year or if Landlord is not supplying services to 100% of the total Rentable Square Footage of the Building during a full or partial calendar year, Operating Expenses for such calendar year shall be determined as if the Building had been 100% occupied and Landlord had been supplying services to 100% of the Rentable Square Footage of the Building during that period. E. Abatement of Base Rent. Notwithstanding anything to the contrary contained herein, provided Tenant is not in default under the Lease beyond any applicable notice and cure period, Landlord hereby agrees to abate Tenant's obligation to pay monthly Base Rent for the Premises for the second (2 nd ) and third (3 rd ) full calendar months of the Tenn (collectively, the "Abated Rent"). During such abatement period, Tenant shall remain responsible for the payment of all of its other monetary obligations under this Lease, including without limitation, Tenant's Pro Rata Share of Operating Expenses, parking charges and any other Building services requested by Tenant (e.g. utilities, janitorial, HVAC). Jn the event Landlord terminates this Lease due to default by Tenant under the terms of this Lease beyond any applicable notice and cure period, then as a part of the recovery set forth in Section 19 of this Lease, Landlord shall be entitled to recover the unamortized amount of the Abated Rent (amortized over the Original Term). F. Landlord's Right to Purchase the Abated Rent. Upon notice to Tenant, Landlord may deliver to Tenant the value of any Abated Rent which Tenant has not yet enjoyed ("Abated Rent Purchase Price") by paying such amount to Tenant in cash or by check. Upon such payment of the Abated Rent Purchase Price by Landlord., the provisions of Section 4.E of this Lease shall be deleted and of no further force or effect. G. Audit Righ