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1506 Hamilton Avenue
San Jose, CA 95125-4539
Telephone: 408.512.3022
VENTURA HERSEY & MULLER, LLP
DAVID I, KORNBLUH, ESQ., SBN 162310
dkornbluh@venturahersey.com
VENTURA HERSEY & MULLER, LLP
1506 Hamilton Avenue
San Jose, CA 95125-4539
Telephone: 408-512-3022
Facsimile: 408-512-3023
Attorneys for Plaintiffs
Judit Van Caenegem and SweetSuite, LLC dba Dollars
Market
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
JUDIT VAN CAENEGEM and Case No. 17CV321225
SWEETSUITE, LLC dba DOLLARS
MARKET, SECOND AMENDED COMPLAINT FOR
BREACH OF CONTRACT AND
Plaintiffs, NEGLIGENCE
vs. [Unlimited Civil Action — Amount in
Controversy Exceeds $25,000]
DENNIS B. K. FONG, DPJW GROUP II, LP;
and DPJW MANAGEMENT, LLC; and Trial Date: None Set
DOES 1 through 10, inclusive,
Defendants.
Plaintiffs, Judit Van Caenegem and SweetSuite, LLC dba Dollars Market (“Plaintiffs”),
bring this action for breach of contract and negligence, and allege as follows;
GENERAL ALLEGATIONS
1. Plaintiff Judit Van Caenegem is, and at all times herein mentioned was, an
individual and was a tenant of landlord Dennis B.K. Fong, at the premises located at 1690 Story
Road, Unit 117, San Jose, Santa Clara County, California (the “Premises”).
2. Plaintiff SweetSuite, LLC dba Dollars Market, at all times herein mentioned was
a limited liability company and a tenant at the Premises.
3. Defendant Dennis B.K. Fong is, and at all times herein mentioned was, an
individual, and is the landlord and owner of the Premises.
1
SECOND AMENDED COMPLAINT FOR BREACH OF CONTRACT AND NEGLIGENCEVENTURA HERSEY & MULLER, LLP
1506 Hamilton Avenue
San Jose, CA 95125-4539
Telephone: 408.512.3022
4, Plaintiffs are informed and believe, and thereon allege, that Defendant DPJW
Group II, LP, at all times mentioned in this Second Amended Complaint, was a limited
partnership.
5. Plaintiffs are informed and believe and thereon allege, Defendant DPJ W
Management, LLC is, and at all times herein mentioned was, a limited liability company
organized and existing under the laws of the State of California; and that DPJW Management,
LLC was the General Partner of DPJW Group II, LP.
6. Plaintiffs are informed and believe, and thereon allege, that DPJW Group II, LP
and DPJW Management, LLC are the management companies responsible for the maintenance
and repairs at the Premises.
7. Plaintiffs are ignorant of the true names and capacities of Defendants sued herein
as DOES 1 through 10, inclusive and therefore sue these Defendants by such fictitious names.
Plaintiffs pray leave to amend this Second Amended Complaint to allege their true names and
capacities when the same have been ascertained.
8. Plaintiffs are informed and believe, and thereon allege that each of the
Defendants sued herein is responsible in some manner for the occurrences herein alleged, and
that Plaintiffs’ damages, as herein alleged, were proximately caused by such Defendants.
9. Plaintiffs are informed and believe, and thereon allege that at all times herein
mentioned each of the Defendants sued herein was the agent or employee of each of the
remaining Defendants, and was, at all times, acting within the purpose and scope of such agency
or employment.
SECOND CAUSE OF ACTION
[Breach of Contract Against All Defendants]
10. Plaintiffs hereby reallege and incorporate herein by this reference each and every
allegation contained in Paragraphs 1 through 9, inclusive, of their Second Amended Complaint,
as though fully set forth herein.
11. Plaintiffs were the tenants of the Premises pursuant to a written commercial lease
(the “Lease”). A copy of the commercial lease is attached hereto as Exhibit “A”.
2
SECOND AMENDED COMPLAINT FOR BREACH OF CONTRACT AND NEGLIGENCEVENTURA HERSEY & MULLER, LLP
1606 Hamilton Avenue
San Jose, CA 95125-4539
Telephone: 408.512.3022
12. On or about January 3, 2016, the property situated at 1690 Story Road, San Jose,
California (the “Property”) was flooded and the Premises experienced water damage due to a
broken pipe.
13. Section 7.01 of the Lease provides that the landlord is responsible to keep in
first-class order, condition and repair, the foundation, exterior walls, plate glass, and showcase
and downspouts, gutters and roof of the Premises.
14. Defendants failed to properly maintain the water pipes connecting the Property to
the City water supply.
15. Asadirect and legal result of landlord’s failure to properly maintain the
Premises, Plaintiffs have been damaged in an amount to be proven at trial.
16. — Section 13.06 of the Lease provides that the prevailing party, in connection with
any dispute, be entitled to recover reasonable attorneys’ fees.
WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of them, as
hereinafter set forth.
SECOND CAUSE OF ACTION
[Negligence Against All Defendants]
17. Plaintiffs hereby reallege and incorporate herein by this reference each and every
allegation contained in Paragraphs 1 through 16, inclusive, of their Second Amended
Complaint, as though fully set forth herein.
18. Defendants were responsible to properly maintain the water pipes connected to
the Property.
19. | Oninformation and belief, Plaintiffs allege that Defendants failed to properly
maintain, and were negligent in the maintenance of water pipes connected to the Property.
20. Asa direct and legal result of Defendants’ negligence, Plaintiffs have been
damaged by the property damaged as a result of flood and lost income due to the closure of the
business, in an amount to be proven at trial.
WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of them, as
set forth below:
3
SECOND AMENDED COMPLAINT FOR BREACH OF CONTRACT AND NEGLIGENCE5
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PRAYER
1. For property damage in an amount to be proven at trial;
For lost profits in an amount to be proven at trial;
For reasonable attorneys’ fees and costs; and
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For such other and further relief as the Court deems just and proper.
Respectfully submitted,
Dated: April 17, 2019 VENTURA HERSEY & MULLER, LLP
Qe
AVID I. KORNBLUH
Attorneys for Plaintiffs
Judit Van Caenegem and
SweetSuite, LLC dba Dollars Market
4
SECOND AMENDED COMPLAINT FOR BREACH OF CONTRACT AND NEGLIGENCEco Oo QD AW FF WN HE
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PROOF OF SERVICE
Re: Judit Van Caenegem, SweetSuite, LLC dba Dollars Market v. Dennis B.K. Fong,
DPJW Group II, LP; and DPJW Management, LLC; et al.
Santa Clara County Superior Court Case No. 17CV321225
I, Jill M. Huffman, declare I am now and at all times herein mentioned have been over the
age of 18 years, a citizen of the United States, employed in Santa Clara County, California, and
not a party to the within action or cause; my business address is 1506 Hamilton Avenue, San Jose,
California 95125, I am readily familiar with Ventura Hersey & Muller LLP practice for collection
and processing of documents for delivery by way of the service indicated below.
On the date below, I served the following document(s):
SECOND AMENDED COMPLAINT
on the interested party(ies) in this action as follows:
Cherie J. Edson Attorneys for Defendants
Lewis Brisbois Bisgaard & Smith, LLP Dennis B.K. Fong,
333 Bush Street, Suite 1100 DPJW Group II, LP; and
San Francisco, CA 94104-2872 DPJW Management, LLC
Tel. 415-438-5918, Fax: 415-434-0882
cherie.edson@lewisbrisbois.com
BY ELECTRONIC SERVICE on the party(ies) and electronic service addresses above.
X | BY MAIL on the following party(ies) in said action, in accordance with Code of Civil
Procedure, section 1013 subdivision a, by placing a true copy thereof enclosed in a sealed
envelope addressed as shown below. I caused such envelope(s) with postage thereon fully
prepaid to be placed in the United States mail at San Jose, California. I am readily familiar
with the firm's practice of collection and processing correspondence for mailing. It is
deposited with the U.S. Postal Service on the same day in the ordinary course of business.
Tam aware that on motion of party served, service is presumed invalid if postal
cancellation date or postage meter date is more than one day after date of deposit for
mailing in affidavit.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on April 17, 2019, at San Jose, California.
Y
“Vill M. Huffman
PROOF OF SERVICERe: Judit Van Caenegem and SweetSuite, LLC dba Dollars Market v. Dennis B.K. Fong,
DPJW Group I, LP; and DPJW Management, LLC; et.al.
Santa Clara County Superior Court Case No, 17CV321225
SECOND AMENDED COMPLAINT
EXHIBIT A
Re: — Judit Van Caenegem and SweetSuite, LLC dba Dollars Market v. Dennis B.K. Fong,
DPJW Group I, LP; and DPJW Management, LLC; et al.
Santa Clara County Superior Court Case No. 17CV321225
SECOND AMENDED COMPLAINT
EXHIBIT APage tof 18
COMMERCIAL LEASE AGREEMENT
This Lease is made as of the First _( Ist )doyof January _, 2012 _, by and between
Dennis B, K. Fong . Landlord") ond
Sudit Van Cacnegom - - : ("Tenant") collectively,
BREE TTT -
PREMISES:
Description, '
“Landlord hereby leases to Tenant and Tenant hereby hires from Landlord those eectain premises
consisting of approximately 4000 +/-_square fect (the "Premises") at 1690 Stor Unit #117
inthe city of __ San Jose, County of Santa Clara, Stato of California and
more particularly described in Exhibit "A" attached hereto, for the term, at the rental, arid upon all of the
. conditions and agreements set forth herein; reserving to Landlord, however, the use of the exterior walls and
roof and the right to install, mintain, use, repair and replace pipes, ducts, condults, and wires through the
Premises in locations which will not materially Interfere with Tenant's use thereof. Tho square footnge is
approximate; any difference in actual mensurement shall in no way reduce or Increase the minimum rent set
forth in Seotion 3.01 herein, Landlord further reserves the right, prior to the commencement of Tenant's work
in the Premisé’, to make changes in the lease lines shown in Exhibit "A" or to relocate the Premises not more
than one hundred (100) feet in either direotion so long os such changes of relocation do not materially change
the size or utility of the Premises,
For the purpose of any prorations such as taxes and common area maintenance described
batt cared tthe roses expos Ton & 61/100 _percent( 10.61 1) ofthe
building on the date‘hereof,
ARTICLE tt
TERM
‘The terms of this Lease shall be for_Ton__ (_10___) year(s) commencing on the
‘Commencement Date as bereinafter defined. /
2,02 Commencement Date,
The term of this Lease shall commence onthe catliest of the following dates: (3) the date by which
Tenant Is required to complete work in the Premises pursuant to Seotion 17.03; (2) the date whichis thirty
(30) days ofter Landlord; or Landlord's agent or architect, notifies Tenant that the Premises are ready for
‘occupancy; ot (3) the date on which Tenunt opens for business tn the Premises, Such date shall be the
Commencement Date,
‘The Commencement Date is January 1, 2012 ,
2.03 Option, .
On or before one hundred eighty (180) days prior to the termination ofthis Lease, ‘Tenastt shall
notify Landlord in,swriting oF election to exeroise nny option(s) to extend the Lease for, One additional
period(s) of __‘Tem year(s), if Tenant so desires. Upon such notlco, Londord ond Tonant shal! have
thirty (30) days to agreo to a new rental for the extended pertod; and (fthey ore unable to come to an
fagreemont, partes huve the option to retain up to threo third party opprafser to determilue the anarket rent,
‘This Lease shall expiro under its toms ifpartes cannot reaoh agevemtent after the opprtsal,
2 :
Nowland Te foreyoing, Landlord may at higher option cancel and tena this Lease
without lability (o either party inthe event thal Tensint shall ot have provided the plans required by section
17.02 or have commenced work on the Premises pursuant to tho plans and specifications described in Article
XVII by no later than thirty (30) days after tho receipt by enént of written notice that Landlord's work in the
Premises has beea substantially completed or shall havo fatled, aftar demtand, to proseuute such work
diligently to completion.
Inittals: p dve -
Landlord “TenantPage 2 of 18
ARTICLE IIL
RENT
fonthly Re
Tet shall pny to Laridlord as minimum monthly rentol for the Prematses tho sum oft
OVOINZ To 12/31/12 Thirteen thousand five hundred & 00/100. ($ 13,500.00 ) dollars.
Thirteen thousand five hundred plus three percent $13,500.00 + 3% annual
01/01/13 To 12/31/21, annual Cost of Living Adjustment ($ COLA dollsrs,
Te - es _____aotlars.
To 6 ) dollars,
‘This Js an absolute net, net, net rental agreement, Payment by Tenant of its Pro Rata
Share of charges for common arca’ maintenance (CAM), management, building and
center wide advertising expenses, property tax, insurance and other amounts
pursuant to Sections herein are in addition to monthly minimum monthly rent,
Above rent shall be paid in advance on the first day of each calendar suonth throughout the Term of
this Leave, Said reatal shall commence an the Commencement Date as set forth in Section 2.02 hereaf wit
proration rentals for any partial calendar month of the term hereof, Alt rental to be.pald by Tenant to
Landlord shall be int tawful money of the United States of America and shall be paid without deduation or
offset, prior notice or demand, and al such place or places us may be designated from tine to time by
Landlord, If rent is unpaid after the fifth day of the month, Tenaitt shall pay a late charge of ten percent
(10%) of the minimum monthly rent, The amount of the Inte charge shall be added to the delinquent rent.
Any dishonored cheok shall be treated ay unpaid rent and shall be subject to late charges in addition to tweuty
five dollars ($25) in return check charge,
102__Cost of Living Increases,
‘The minimum monthly rental provided in Section 3.01 sholl be subject to edjustment at the
commencement of the second Lease Year of the term aftd at tho commencement of each Lease Year thereafter
(the “adjustment date") os follows:
“The base for computing the adjustment is the Unlted States Department of Labor, Bureau of Labor
Statistlos Consumer Price Index, Subgroup ("Ali Items") entitled Consumer Price Index, San Pranclseo-
‘Oakland Metropolitan Area Average, (1982-84 equals 100), ("Index"), whtal is published for the month
mearest the date of (he commencement of the tenn ("Beginning Index”), If the index published nearest tho -”
‘adjustment date (“Extension Index") has increased over the Beginning Index, the minimum monthly rental for
the following year, until the next rent adjustment, shall be set by multiplying the minfmum monthly rental set
forth in Scotion 3.01 by a fraction, the numerator-of which Is the Extedision Index and the denominator of
which ts the Boginning Indox, Innto caso shall the minimum monthly rental be less than the minimum
monthly rental set forth in Section 3,01 on adjustment of the minimum monthly rental as provided in this
Lease, landlord shall give Teaant written notice ta the effect indicating how the new ‘monthly suinimum rental
{was computed,
Ifthe index is chonged so thet te base year differs from that used ofthe month Immedistely
preceding the month In which the term commences, the Index shall be converted in accordance with the
conversion factor published by the United States Department of lator, Bureau of Labor Statistios, Ifthe
Index is discounted or revised during the (erm, such other governmént index or computation with which it is
* replaced shall be used in order to obtain substantially the same result as would be oblained if the Index had
not been discontinued or revised,
age soe
Tn addition to the minfmwn monthly rental heroin above agreed to be poid by Tenant, Tenant shall
und! will pay to the fandlord atthe time and in Ute mariner herein speoified an weditional rental in an amount
equalto, None, percent (,_=0- _%) of the amount of Tenant's gross Sales
(os defined in Section 3.06 of this Lense) made in, upon or from the Premises during each Lease Year, 08
defined in Section 3.05 of this Lease, less the ageregate amount of the minimum monthly rental previously.
pold by Tenant for soid Lease Year, Provided, however, that Tenants gross sales for any period during which
‘Tenant does not continuously and uninterruptedly conduct business ns required by Seotton 6.01 shall be
deemed (9 be the rete of Tenants grote or) sth ped or th enespenng peed af he
proceding year,
3.04__Lease Year,
The term "I.ease Year” as usod in this Lease means as follows:
(2) Th fist Leas Yea shall be te perlad from the Commencement Dat othe lst day ofthe
calondar month which is ons year after the Commencement Date,
(b) Bach succeed Leuwo Yee el be w fill yor conumouvng on the day following theft Lease
Year or any anniversary thereof, and running to the next succeeding qnaiversary of such day.
Wo suc
Anlttats: .
Landlord TenantPage 3 of [8
ARTICLE IV
ARTICLE IV HAS BEEN DELETED IN ITS ENTIRETY.
ARTICLE V
TAXES
‘en
‘Tenant shall pay to Landlord as additional rent his/her pro rata share of all real property taxes
_—-—— ~— applioable-te-the-premises-within thiny (30) days after receipt of ewritten statement from Landlord sotttig “
forth the nmount of stich taxes and showing in reasonable detail the manner in which it has been computed,
e :
"Tho term "real property toxes” as used Herein shall include all taxes, general or special assessments
and governmental charges levied upon or with respect fo the lond and improvements within the shopping
centér of which the premises are a part: any tax.or exclse on rents or ather tax, however described, including,
without Imitation, any so-called valuc-addod tax, levied against Landlord on account of the rent reserved.
hereunder or on the business of renting spaces in the shopping center; and any tax or charge levied or
‘assessed upon, or by reason of, the public parking made available at the shopping center as provided in.
Section 14,06; provided, however, that the term “real property taxes” shall not inolude any franchise, estate,
inheritance, succession, capital levy, net inedme or excess profits {axes imposed upon Landlord except that in
the event that real property taxed are withdrawn in whale or in part and any substitute tax is made therefor,
such tax shall in any event for the purpose of this Lease be considered a real property tax regardless of how
denominated or the source from which itis collected. ‘The term "real property tax" shall also include all
expenses reasonably Incurred by Landlord in seeking reduction by the taxing authorities of real property toxes
applicable to the shopping center, . a
$03 Pro Rate Share,
‘The Tenant's "pro rata sharo” as thal term is used herein, of real property taxes shall be that
proportion of the real property taxes levied or assessed agalust the entire shopping center af which the
Piomises are a port tht the gross floor area of the Premises bears (o the gross floor area of all improvements
contained within the shopping center, ‘The term "gross floor area” shall have the meaning given in Section
16.04. Provided, however, that should the shopping center at any time bo split info two (2) or more assessor's
parcels, Tenant’ pro rata share shall be as defined above, but as a propartion caleulated upon the gross floor
‘aren of the buildings located in that assescor's parcel embracing the Premises.
tlonment
For the purpose of this Article, real property taxes which are levied an a fiscal year basis shall be
deemed to apply one-twelfth to each calendar month in such fiscal year,
5.05. ‘ax on Leasohold or Personalty, .
“Tenant shall be responsible for and shall pay before delinquency all municipal, county orstate taxes,
levies and fees of every kind and nature inoluding but not limited to genoral or special assessments assessed
during the term of ths lease against any leasehold Interest or personal property of any kind, owned by or
placed fa, upon or about the Premises by Tenant, Tennt agrees to pay the amount of all taxes levied upon o
measured by the cent payable hereunder, whethor as a'so-ealled sales tax, transection privilege tax, excise tax,
or otherwise, but Tenant shall not be required to pay any municipal, eounty, stato or federal income tax of
Landlord. On demand by Landlord, Tenant shall furnish Landlord with sasfactory evidence of these
payments, IP any taxes on Tenants personal property are levied against Landlord or Landlord's property, or if
the assessed value of the building and other improvements in which the Premises are located ts Increased by
the inclusion ofa value placed on Tenant's personal property, and if Landlord pays the taxes on any of these
iterns or the tax is based on the increased assessment of these items, Tenant, on demand, shall immediately
relmburse Landlord forthe sum of the faxes levied agelnst Landlord, or the portion of the taxes resulting from
tho increase in Landlord's assessment. Landlord shall have the right to pay these taxes regardless of the
validity of the levy.
Initials: i oe dvc.
Tandtord : ‘TenantPage 4 of 18
ARTICLE VI
CONDUCT OF BUSINESS BY TENANT
LU remises. * ’
Tenant shall use the Promises for the pusposo of seles of Discotint Market with .
0 earage as curren! ‘ovided. There be no jewelry. No additon:
ile oducts 2 ices offered by current tenants in La Placita and for
a+ + fo.other purposes without the prloravritten consent of Landlord, -Fenant shall devote the-entire-Premises:to— =» —--—- ——— —
such use except for areas reasonably required for office or storage space, Tenant shall continuously and
unibterruptedly during the term hereof conduct his/her business activiy in the Premises during all business
hhours usual for Tenants type of business, but in any event during those hours established by Landlord, uoless ~
Tenant is prevented from doing so by slrike, fie or other causo beyortd Tenants reasonable control. and
cexoept during reasonable periods for repairing, cleanings, and deoorating the Premises, Tenant shall tall
times carry a full and completo stoak of mnerchandise offered for gale ot competitive prices and shall maintain
an adequate staff for the servicos of isfher customers, Tenant shall employ higher best Judgment, eftorts end
abilities to operaty the business conducted by hinvhet Inthe Premises In such renner ns to produ the
maximum profiteble volun of sales reasonably obtainable and (o enhance the repalatlon and attractiveness
of the shopping center, Tenant shall not do, bring, or keep anything fn or about the Premises that will vuse a
‘cancellation of any insurance covering the shopping center in which tho Premises are located, If the rate of
any insurance carried by Landlord is increased as result of Tenants use, Tenant shall pay Landlord within
ten (10) doys before the dato Landlord is obtigated to fay o premium on the lasurance, or within ten (10) days
after Landlord delivers to Tenant a certified statement froma Landlord's insurance carrer stating thot the rate
Increase was caused solely by an actlvity of Tenant on tho Preralses as penltted in this Lease, whlchaver dato
is later, a sum equal (othe difference between the original premlvm and the Increased premium,
lance § A
Tenant shall comply promptly, at tenant's expense. with all applicable statutes, ordinances, rules,
regulations, orders and requirements regulating the condition, uso or aceupancy of the Premises by Tenant,
including, without Limltation, any statute, ordinance, rule regulation order or requirement requiring that
Tenaat olter,niaintaln, or festore the Preitises in compliance and conformity with all laws relating to the
condition, use or accupancy of the Premises during ths term, including without limitation, the Americans
Disabilities Act of 1992, and eny statutes or ordinances yovéming the storage, use or disposal of hazardous
materiuls, Tenant shall not use or permit the use of the Premises in any manner thac will tend (o create a
nuisance, constitute waste, ot tend to disturb other texts or occupants of the shopping center or tend fo
{injure the ceputation of the shopping center.
6,03 Forbidden Uses,
No ouetion, fire sale, bankruptoy sales, sidewalk sales, going out of business sale or continuous
discount operation may be conducted in the Premises without the wrltten consont of Landlord, which dy be
withteld at Landlord's sole discretion. :
- Tenant shall use his/her best efforts to complete or cause to be completed, all deliveries, loading.
tuntonding, rubbish removal and other services to the Premises priot to 10:00 A.M, of ench day. Landlord
reserves the right to further regulate the activities of Tenant in regard tc deliveries and servicing of the
Premises, and Tenant agrees to abide by such further nondisoriminatory regulations of Landtord,
6.05 __ Other Rutes and Regulations
“Tenant sholl comply at all times with the Rules and Regulations attached to this Lease ond such
amgndments and modifications tiercof and additions thereto as Landlord may from time to tinte reasonably
adopt for the sattly, care and cleanliness of the shopping center or the presecvation of good order therein,
Landlord shall not be liable to Tenant or othor person fo comply with such Rules and Regulations,
ARTICLE Vit
MAINTENANCE, REPAIRS AND ALTERATIONS
2.01 Landlord's Responsibility, .
Subject to the provistons of Article TX hereof, Landlord shall, during the term of this Lease, keop in
First class order, condition and repair the foundatlons and exterior walls (excluding the interior surface of
exterior walls and excluding all windows, doors, plato glass and showcase and down spouts, gultens ond roo!)
of tke Premises, except for any damage thereto caused by ony negligent act or omission of Tenant orhishher
agents, employees or invitees, and except for reasonable wear and tear: provided, however, that Landlord
shall have no obligation to repatr until a reasonable time after the recolpt by Landlord of written notice of the
need for repairs, Tenant walves tho provistons of Civil Code Sections 1941 and 1942 with respect to
Landlord's obligations for tenantabllity of the Premises and Tenant's rights to make repalrs and deduct the
expenses of such repairs from rent,
Initials Ave.
Tandidte TenantPage 5 of 18
ment by .
‘Tenant ‘half reimburse andlor, ns additional rent, for Tenant's proportionate sbare (as herein
defined) ofall coats and oxpensés incurred by Landlord for the foregoing maintenance and repair. Such costs
shull exeludo partial or complete restoration necessitated by casualty, bul inolude Landlord's cost of insuring
the Premises as provided ia Section 8,03 hereof,
‘Tenant's proportionate share of such costs will bo that proportion thereof which the gross floor area
of the Promises benrs fo the gross floor area of all improveinents contajned within the shopping center, The
term "gross floor urea” shall have the ® meaning given it in Section 16.04,
2.03 ___‘Tenint’s Responsibility,
By entry hereunder, Tenant acknowledges that the Premises and appurtenances are th good, clean
and sanitary ordorand sepair Except os expressly set forth-tiereln;-Tenanty-at-his/her-sole expense shall
‘maintain in good order and repair, including necessary replacements, all portions of the interior aud exterior
of the Promises ond appurtenances, including, without linltation, floor structures, pipes and condults, utility
installations, alr conditioning and heating equipment, glazing and doors, Tenant, nt hisher solo expense,
shalt keep and maintain the Premises and appurtenances clean and sanitary. ‘Tenants obligatlons shall
include, without fimilation, Keeping portions of sewers und drains provided for thé exclusiva benefit of
Tenant open and clear and keeping tho sidewalk adjacent to this Premises olean, Tenant shall not allow refuse
+ or other waste raaterials o accumulate outside tho Premises except on the day of scheduled scavenger pick-up
service and then only in covered containers in areas approved for [hat purpose by Landlord. ‘Tenant shall
point, varnish, wallpaper, or otherwise redecorate or renovate the interldr of the Premises and Tenants trade
fixtures at least once during every four-year period during the term of this Lease, Any and all repairs of any
nature whatsoever shall be at the sole expense of Tenant, except such as may be caused by negligence or
willful misconduct of Landlord, hissher agents or employees, Tenant, at hier sole expense shall procure
and maintain in effect at all times during tho (erm of this Lease, a preventive maintenance agreement with »
qualified mechanleat coutractor covering any eating or air conditioning equipment provided by Landlord
‘ond upon request shall provido Landlord with a copy thereof,
2.04 __Condiilon Upon Sumender,
: ‘On the fast day of tho torm hereof, Tenant will remove his/her siyns and trade fixtures from the
leased Premises und will surrender the leased Premises and appurtenances to Lendlord in a sate of good
repale, reasonable wear and tear, obsolescence and damage hy fie, uct of God or elements, or damage which
Landlord is required to repair hereunder excepted.
IC Tenant falls to perform higher obligation uader Section 7.03 and Scetion 7.04 herein, Landlord
may at hither option, after five (5) doys' writen notice fo Tenant, enter upon the Premises and put the samne
in good order, condition and ropait and the cost thereof shall become due and payable o8 additional rent by
Tenant to Landtord tipon demand,
2 improve .
(a) Tenant shall not, without prior written consent of Landlord, which consent shall not unreasonably
be withheld, make any alteratfons, Improvements, remodeling or additions (o elther the inferlor or exterior of
the Premises or to fixtures installed therein in accordance with approved fixture plans, or mark, paint, drill or
in any way deface any portion of the Premises, All alteratlons, improvements, remodeling or dons shall
be subject to the provisions of Article XVII and at feast five (5) working days prior to undertaking any
construction pursuant hereto, Tenant shall servo written notice upon Landlord setting forth the date vrkisto
commence, Landlord shail have the right at all reasonable times (o post and keep posted on the Premises
such notices of nonresporsibility es Landlord may deem necessary for the protection of Landlord and the fee
from mechanio's and materialman's Lens,
, (b) All alterations, improvements, remodeling, additions or fixtures, other than trade fixtures not
permaviently affixed to the Promises, which may be made or installed In the Premises and which are attached
{o the floor, wall or ceiling of the Premises, ond any floor covering whlch }s cemented or otherwise aflixed to
the floor of the Premises, shall at the termination of this Lease become the property of Landlord and remain
upon and bo surrendered with tho Premises, provided, however, that Landlord can elect within ten (10) days
‘bufore the expiration of the term, or within five (5)days after terntination of the term, to require Tenant to
remove any alterations that Tenant has made to the Premises, If Landlord so clects Tenant-at his/her cost
shall restate the Premises to the condition designated by Landlord in his/her clection, before the last day of
the (orm, or within five (S) days after notice of eleatian ts given, whichever is lator,
2.06
itis
“Tenant chal Keep tho’Premises toll times Jn neat, lean ond sanitary condition, shalt nother
commit nor pert any waste 6r nulsonce ttereon, and shall Joep the wolks and corridors adjacont thereto free
from Tenants wast debe
Antelads: 1x five
Vandlord . TeonntPage 6 of 18 .
ARTICLE VILL
INSURANCE} INDEMNITY
8.01 __Tenant to Maintain, . .
Tenant shall at all times during the term hereof and at Tenant's sole cost and expense, molntain in
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1506 Hamilton Avenue San Jose, CA 95125-4539 Telephone: 408.512.3022 VENTURA HERSEY & MULLER, LLP DAVID I, KORNBLUH, ESQ., SBN 162310 dkornbluh@venturahersey.com VENTURA HERSEY & MULLER, LLP 1506 Hamilton Avenue San Jose, CA 95125-4539 Telephone: 408-512-3022 Facsimile: 408-512-3023 Attorneys for Plaintiffs Judit Van Caenegem and SweetSuite, LLC dba Dollars Market SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA JUDIT VAN CAENEGEM and Case No. 17CV321225 SWEETSUITE, LLC dba DOLLARS MARKET, SECOND AMENDED COMPLAINT FOR BREACH OF CONTRACT AND Plaintiffs, NEGLIGENCE vs. [Unlimited Civil Action — Amount in Controversy Exceeds $25,000] DENNIS B. K. FONG, DPJW GROUP II, LP; and DPJW MANAGEMENT, LLC; and Trial Date: None Set DOES 1 through 10, inclusive, Defendants. Plaintiffs, Judit Van Caenegem and SweetSuite, LLC dba Dollars Market (“Plaintiffs”), bring this action for breach of contract and negligence, and allege as follows; GENERAL ALLEGATIONS 1. Plaintiff Judit Van Caenegem is, and at all times herein mentioned was, an individual and was a tenant of landlord Dennis B.K. Fong, at the premises located at 1690 Story Road, Unit 117, San Jose, Santa Clara County, California (the “Premises”). 2. Plaintiff SweetSuite, LLC dba Dollars Market, at all times herein mentioned was a limited liability company and a tenant at the Premises. 3. Defendant Dennis B.K. Fong is, and at all times herein mentioned was, an individual, and is the landlord and owner of the Premises. 1 SECOND AMENDED COMPLAINT FOR BREACH OF CONTRACT AND NEGLIGENCEVENTURA HERSEY & MULLER, LLP 1506 Hamilton Avenue San Jose, CA 95125-4539 Telephone: 408.512.3022 4, Plaintiffs are informed and believe, and thereon allege, that Defendant DPJW Group II, LP, at all times mentioned in this Second Amended Complaint, was a limited partnership. 5. Plaintiffs are informed and believe and thereon allege, Defendant DPJ W Management, LLC is, and at all times herein mentioned was, a limited liability company organized and existing under the laws of the State of California; and that DPJW Management, LLC was the General Partner of DPJW Group II, LP. 6. Plaintiffs are informed and believe, and thereon allege, that DPJW Group II, LP and DPJW Management, LLC are the management companies responsible for the maintenance and repairs at the Premises. 7. Plaintiffs are ignorant of the true names and capacities of Defendants sued herein as DOES 1 through 10, inclusive and therefore sue these Defendants by such fictitious names. Plaintiffs pray leave to amend this Second Amended Complaint to allege their true names and capacities when the same have been ascertained. 8. Plaintiffs are informed and believe, and thereon allege that each of the Defendants sued herein is responsible in some manner for the occurrences herein alleged, and that Plaintiffs’ damages, as herein alleged, were proximately caused by such Defendants. 9. Plaintiffs are informed and believe, and thereon allege that at all times herein mentioned each of the Defendants sued herein was the agent or employee of each of the remaining Defendants, and was, at all times, acting within the purpose and scope of such agency or employment. SECOND CAUSE OF ACTION [Breach of Contract Against All Defendants] 10. Plaintiffs hereby reallege and incorporate herein by this reference each and every allegation contained in Paragraphs 1 through 9, inclusive, of their Second Amended Complaint, as though fully set forth herein. 11. Plaintiffs were the tenants of the Premises pursuant to a written commercial lease (the “Lease”). A copy of the commercial lease is attached hereto as Exhibit “A”. 2 SECOND AMENDED COMPLAINT FOR BREACH OF CONTRACT AND NEGLIGENCEVENTURA HERSEY & MULLER, LLP 1606 Hamilton Avenue San Jose, CA 95125-4539 Telephone: 408.512.3022 12. On or about January 3, 2016, the property situated at 1690 Story Road, San Jose, California (the “Property”) was flooded and the Premises experienced water damage due to a broken pipe. 13. Section 7.01 of the Lease provides that the landlord is responsible to keep in first-class order, condition and repair, the foundation, exterior walls, plate glass, and showcase and downspouts, gutters and roof of the Premises. 14. Defendants failed to properly maintain the water pipes connecting the Property to the City water supply. 15. Asadirect and legal result of landlord’s failure to properly maintain the Premises, Plaintiffs have been damaged in an amount to be proven at trial. 16. — Section 13.06 of the Lease provides that the prevailing party, in connection with any dispute, be entitled to recover reasonable attorneys’ fees. WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of them, as hereinafter set forth. SECOND CAUSE OF ACTION [Negligence Against All Defendants] 17. Plaintiffs hereby reallege and incorporate herein by this reference each and every allegation contained in Paragraphs 1 through 16, inclusive, of their Second Amended Complaint, as though fully set forth herein. 18. Defendants were responsible to properly maintain the water pipes connected to the Property. 19. | Oninformation and belief, Plaintiffs allege that Defendants failed to properly maintain, and were negligent in the maintenance of water pipes connected to the Property. 20. Asa direct and legal result of Defendants’ negligence, Plaintiffs have been damaged by the property damaged as a result of flood and lost income due to the closure of the business, in an amount to be proven at trial. WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of them, as set forth below: 3 SECOND AMENDED COMPLAINT FOR BREACH OF CONTRACT AND NEGLIGENCE5 eo 4 oBN Heya BEG 2285 ges, wrgs zeee e253 p oF g PRAYER 1. For property damage in an amount to be proven at trial; For lost profits in an amount to be proven at trial; For reasonable attorneys’ fees and costs; and - YN For such other and further relief as the Court deems just and proper. Respectfully submitted, Dated: April 17, 2019 VENTURA HERSEY & MULLER, LLP Qe AVID I. KORNBLUH Attorneys for Plaintiffs Judit Van Caenegem and SweetSuite, LLC dba Dollars Market 4 SECOND AMENDED COMPLAINT FOR BREACH OF CONTRACT AND NEGLIGENCEco Oo QD AW FF WN HE NO NY NY NY NY N NY BD DO RR a a co] DA HW KR YW NHN FP SO we IW DH BF WN SF OS PROOF OF SERVICE Re: Judit Van Caenegem, SweetSuite, LLC dba Dollars Market v. Dennis B.K. Fong, DPJW Group II, LP; and DPJW Management, LLC; et al. Santa Clara County Superior Court Case No. 17CV321225 I, Jill M. Huffman, declare I am now and at all times herein mentioned have been over the age of 18 years, a citizen of the United States, employed in Santa Clara County, California, and not a party to the within action or cause; my business address is 1506 Hamilton Avenue, San Jose, California 95125, I am readily familiar with Ventura Hersey & Muller LLP practice for collection and processing of documents for delivery by way of the service indicated below. On the date below, I served the following document(s): SECOND AMENDED COMPLAINT on the interested party(ies) in this action as follows: Cherie J. Edson Attorneys for Defendants Lewis Brisbois Bisgaard & Smith, LLP Dennis B.K. Fong, 333 Bush Street, Suite 1100 DPJW Group II, LP; and San Francisco, CA 94104-2872 DPJW Management, LLC Tel. 415-438-5918, Fax: 415-434-0882 cherie.edson@lewisbrisbois.com BY ELECTRONIC SERVICE on the party(ies) and electronic service addresses above. X | BY MAIL on the following party(ies) in said action, in accordance with Code of Civil Procedure, section 1013 subdivision a, by placing a true copy thereof enclosed in a sealed envelope addressed as shown below. I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail at San Jose, California. I am readily familiar with the firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on the same day in the ordinary course of business. Tam aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on April 17, 2019, at San Jose, California. Y “Vill M. Huffman PROOF OF SERVICERe: Judit Van Caenegem and SweetSuite, LLC dba Dollars Market v. Dennis B.K. Fong, DPJW Group I, LP; and DPJW Management, LLC; et.al. Santa Clara County Superior Court Case No, 17CV321225 SECOND AMENDED COMPLAINT EXHIBIT A Re: — Judit Van Caenegem and SweetSuite, LLC dba Dollars Market v. Dennis B.K. Fong, DPJW Group I, LP; and DPJW Management, LLC; et al. Santa Clara County Superior Court Case No. 17CV321225 SECOND AMENDED COMPLAINT EXHIBIT APage tof 18 COMMERCIAL LEASE AGREEMENT This Lease is made as of the First _( Ist )doyof January _, 2012 _, by and between Dennis B, K. Fong . Landlord") ond Sudit Van Cacnegom - - : ("Tenant") collectively, BREE TTT - PREMISES: Description, ' “Landlord hereby leases to Tenant and Tenant hereby hires from Landlord those eectain premises consisting of approximately 4000 +/-_square fect (the "Premises") at 1690 Stor Unit #117 inthe city of __ San Jose, County of Santa Clara, Stato of California and more particularly described in Exhibit "A" attached hereto, for the term, at the rental, arid upon all of the . conditions and agreements set forth herein; reserving to Landlord, however, the use of the exterior walls and roof and the right to install, mintain, use, repair and replace pipes, ducts, condults, and wires through the Premises in locations which will not materially Interfere with Tenant's use thereof. Tho square footnge is approximate; any difference in actual mensurement shall in no way reduce or Increase the minimum rent set forth in Seotion 3.01 herein, Landlord further reserves the right, prior to the commencement of Tenant's work in the Premisé’, to make changes in the lease lines shown in Exhibit "A" or to relocate the Premises not more than one hundred (100) feet in either direotion so long os such changes of relocation do not materially change the size or utility of the Premises, For the purpose of any prorations such as taxes and common area maintenance described batt cared tthe roses expos Ton & 61/100 _percent( 10.61 1) ofthe building on the date‘hereof, ARTICLE tt TERM ‘The terms of this Lease shall be for_Ton__ (_10___) year(s) commencing on the ‘Commencement Date as bereinafter defined. / 2,02 Commencement Date, The term of this Lease shall commence onthe catliest of the following dates: (3) the date by which Tenant Is required to complete work in the Premises pursuant to Seotion 17.03; (2) the date whichis thirty (30) days ofter Landlord; or Landlord's agent or architect, notifies Tenant that the Premises are ready for ‘occupancy; ot (3) the date on which Tenunt opens for business tn the Premises, Such date shall be the Commencement Date, ‘The Commencement Date is January 1, 2012 , 2.03 Option, . On or before one hundred eighty (180) days prior to the termination ofthis Lease, ‘Tenastt shall notify Landlord in,swriting oF election to exeroise nny option(s) to extend the Lease for, One additional period(s) of __‘Tem year(s), if Tenant so desires. Upon such notlco, Londord ond Tonant shal! have thirty (30) days to agreo to a new rental for the extended pertod; and (fthey ore unable to come to an fagreemont, partes huve the option to retain up to threo third party opprafser to determilue the anarket rent, ‘This Lease shall expiro under its toms ifpartes cannot reaoh agevemtent after the opprtsal, 2 : Nowland Te foreyoing, Landlord may at higher option cancel and tena this Lease without lability (o either party inthe event thal Tensint shall ot have provided the plans required by section 17.02 or have commenced work on the Premises pursuant to tho plans and specifications described in Article XVII by no later than thirty (30) days after tho receipt by enént of written notice that Landlord's work in the Premises has beea substantially completed or shall havo fatled, aftar demtand, to proseuute such work diligently to completion. Inittals: p dve - Landlord “TenantPage 2 of 18 ARTICLE IIL RENT fonthly Re Tet shall pny to Laridlord as minimum monthly rentol for the Prematses tho sum oft OVOINZ To 12/31/12 Thirteen thousand five hundred & 00/100. ($ 13,500.00 ) dollars. Thirteen thousand five hundred plus three percent $13,500.00 + 3% annual 01/01/13 To 12/31/21, annual Cost of Living Adjustment ($ COLA dollsrs, Te - es _____aotlars. To 6 ) dollars, ‘This Js an absolute net, net, net rental agreement, Payment by Tenant of its Pro Rata Share of charges for common arca’ maintenance (CAM), management, building and center wide advertising expenses, property tax, insurance and other amounts pursuant to Sections herein are in addition to monthly minimum monthly rent, Above rent shall be paid in advance on the first day of each calendar suonth throughout the Term of this Leave, Said reatal shall commence an the Commencement Date as set forth in Section 2.02 hereaf wit proration rentals for any partial calendar month of the term hereof, Alt rental to be.pald by Tenant to Landlord shall be int tawful money of the United States of America and shall be paid without deduation or offset, prior notice or demand, and al such place or places us may be designated from tine to time by Landlord, If rent is unpaid after the fifth day of the month, Tenaitt shall pay a late charge of ten percent (10%) of the minimum monthly rent, The amount of the Inte charge shall be added to the delinquent rent. Any dishonored cheok shall be treated ay unpaid rent and shall be subject to late charges in addition to tweuty five dollars ($25) in return check charge, 102__Cost of Living Increases, ‘The minimum monthly rental provided in Section 3.01 sholl be subject to edjustment at the commencement of the second Lease Year of the term aftd at tho commencement of each Lease Year thereafter (the “adjustment date") os follows: “The base for computing the adjustment is the Unlted States Department of Labor, Bureau of Labor Statistlos Consumer Price Index, Subgroup ("Ali Items") entitled Consumer Price Index, San Pranclseo- ‘Oakland Metropolitan Area Average, (1982-84 equals 100), ("Index"), whtal is published for the month mearest the date of (he commencement of the tenn ("Beginning Index”), If the index published nearest tho -” ‘adjustment date (“Extension Index") has increased over the Beginning Index, the minimum monthly rental for the following year, until the next rent adjustment, shall be set by multiplying the minfmum monthly rental set forth in Scotion 3.01 by a fraction, the numerator-of which Is the Extedision Index and the denominator of which ts the Boginning Indox, Innto caso shall the minimum monthly rental be less than the minimum monthly rental set forth in Section 3,01 on adjustment of the minimum monthly rental as provided in this Lease, landlord shall give Teaant written notice ta the effect indicating how the new ‘monthly suinimum rental {was computed, Ifthe index is chonged so thet te base year differs from that used ofthe month Immedistely preceding the month In which the term commences, the Index shall be converted in accordance with the conversion factor published by the United States Department of lator, Bureau of Labor Statistios, Ifthe Index is discounted or revised during the (erm, such other governmént index or computation with which it is * replaced shall be used in order to obtain substantially the same result as would be oblained if the Index had not been discontinued or revised, age soe Tn addition to the minfmwn monthly rental heroin above agreed to be poid by Tenant, Tenant shall und! will pay to the fandlord atthe time and in Ute mariner herein speoified an weditional rental in an amount equalto, None, percent (,_=0- _%) of the amount of Tenant's gross Sales (os defined in Section 3.06 of this Lense) made in, upon or from the Premises during each Lease Year, 08 defined in Section 3.05 of this Lease, less the ageregate amount of the minimum monthly rental previously. pold by Tenant for soid Lease Year, Provided, however, that Tenants gross sales for any period during which ‘Tenant does not continuously and uninterruptedly conduct business ns required by Seotton 6.01 shall be deemed (9 be the rete of Tenants grote or) sth ped or th enespenng peed af he proceding year, 3.04__Lease Year, The term "I.ease Year” as usod in this Lease means as follows: (2) Th fist Leas Yea shall be te perlad from the Commencement Dat othe lst day ofthe calondar month which is ons year after the Commencement Date, (b) Bach succeed Leuwo Yee el be w fill yor conumouvng on the day following theft Lease Year or any anniversary thereof, and running to the next succeeding qnaiversary of such day. Wo suc Anlttats: . Landlord TenantPage 3 of [8 ARTICLE IV ARTICLE IV HAS BEEN DELETED IN ITS ENTIRETY. ARTICLE V TAXES ‘en ‘Tenant shall pay to Landlord as additional rent his/her pro rata share of all real property taxes _—-—— ~— applioable-te-the-premises-within thiny (30) days after receipt of ewritten statement from Landlord sotttig “ forth the nmount of stich taxes and showing in reasonable detail the manner in which it has been computed, e : "Tho term "real property toxes” as used Herein shall include all taxes, general or special assessments and governmental charges levied upon or with respect fo the lond and improvements within the shopping centér of which the premises are a part: any tax.or exclse on rents or ather tax, however described, including, without Imitation, any so-called valuc-addod tax, levied against Landlord on account of the rent reserved. hereunder or on the business of renting spaces in the shopping center; and any tax or charge levied or ‘assessed upon, or by reason of, the public parking made available at the shopping center as provided in. Section 14,06; provided, however, that the term “real property taxes” shall not inolude any franchise, estate, inheritance, succession, capital levy, net inedme or excess profits {axes imposed upon Landlord except that in the event that real property taxed are withdrawn in whale or in part and any substitute tax is made therefor, such tax shall in any event for the purpose of this Lease be considered a real property tax regardless of how denominated or the source from which itis collected. ‘The term "real property tax" shall also include all expenses reasonably Incurred by Landlord in seeking reduction by the taxing authorities of real property toxes applicable to the shopping center, . a $03 Pro Rate Share, ‘The Tenant's "pro rata sharo” as thal term is used herein, of real property taxes shall be that proportion of the real property taxes levied or assessed agalust the entire shopping center af which the Piomises are a port tht the gross floor area of the Premises bears (o the gross floor area of all improvements contained within the shopping center, ‘The term "gross floor area” shall have the meaning given in Section 16.04. Provided, however, that should the shopping center at any time bo split info two (2) or more assessor's parcels, Tenant’ pro rata share shall be as defined above, but as a propartion caleulated upon the gross floor ‘aren of the buildings located in that assescor's parcel embracing the Premises. tlonment For the purpose of this Article, real property taxes which are levied an a fiscal year basis shall be deemed to apply one-twelfth to each calendar month in such fiscal year, 5.05. ‘ax on Leasohold or Personalty, . “Tenant shall be responsible for and shall pay before delinquency all municipal, county orstate taxes, levies and fees of every kind and nature inoluding but not limited to genoral or special assessments assessed during the term of ths lease against any leasehold Interest or personal property of any kind, owned by or placed fa, upon or about the Premises by Tenant, Tennt agrees to pay the amount of all taxes levied upon o measured by the cent payable hereunder, whethor as a'so-ealled sales tax, transection privilege tax, excise tax, or otherwise, but Tenant shall not be required to pay any municipal, eounty, stato or federal income tax of Landlord. On demand by Landlord, Tenant shall furnish Landlord with sasfactory evidence of these payments, IP any taxes on Tenants personal property are levied against Landlord or Landlord's property, or if the assessed value of the building and other improvements in which the Premises are located ts Increased by the inclusion ofa value placed on Tenant's personal property, and if Landlord pays the taxes on any of these iterns or the tax is based on the increased assessment of these items, Tenant, on demand, shall immediately relmburse Landlord forthe sum of the faxes levied agelnst Landlord, or the portion of the taxes resulting from tho increase in Landlord's assessment. Landlord shall have the right to pay these taxes regardless of the validity of the levy. Initials: i oe dvc. Tandtord : ‘TenantPage 4 of 18 ARTICLE VI CONDUCT OF BUSINESS BY TENANT LU remises. * ’ Tenant shall use the Promises for the pusposo of seles of Discotint Market with . 0 earage as curren! ‘ovided. There be no jewelry. No additon: ile oducts 2 ices offered by current tenants in La Placita and for a+ + fo.other purposes without the prloravritten consent of Landlord, -Fenant shall devote the-entire-Premises:to— =» —--—- ——— — such use except for areas reasonably required for office or storage space, Tenant shall continuously and unibterruptedly during the term hereof conduct his/her business activiy in the Premises during all business hhours usual for Tenants type of business, but in any event during those hours established by Landlord, uoless ~ Tenant is prevented from doing so by slrike, fie or other causo beyortd Tenants reasonable control. and cexoept during reasonable periods for repairing, cleanings, and deoorating the Premises, Tenant shall tall times carry a full and completo stoak of mnerchandise offered for gale ot competitive prices and shall maintain an adequate staff for the servicos of isfher customers, Tenant shall employ higher best Judgment, eftorts end abilities to operaty the business conducted by hinvhet Inthe Premises In such renner ns to produ the maximum profiteble volun of sales reasonably obtainable and (o enhance the repalatlon and attractiveness of the shopping center, Tenant shall not do, bring, or keep anything fn or about the Premises that will vuse a ‘cancellation of any insurance covering the shopping center in which tho Premises are located, If the rate of any insurance carried by Landlord is increased as result of Tenants use, Tenant shall pay Landlord within ten (10) doys before the dato Landlord is obtigated to fay o premium on the lasurance, or within ten (10) days after Landlord delivers to Tenant a certified statement froma Landlord's insurance carrer stating thot the rate Increase was caused solely by an actlvity of Tenant on tho Preralses as penltted in this Lease, whlchaver dato is later, a sum equal (othe difference between the original premlvm and the Increased premium, lance § A Tenant shall comply promptly, at tenant's expense. with all applicable statutes, ordinances, rules, regulations, orders and requirements regulating the condition, uso or aceupancy of the Premises by Tenant, including, without Limltation, any statute, ordinance, rule regulation order or requirement requiring that Tenaat olter,niaintaln, or festore the Preitises in compliance and conformity with all laws relating to the condition, use or accupancy of the Premises during ths term, including without limitation, the Americans Disabilities Act of 1992, and eny statutes or ordinances yovéming the storage, use or disposal of hazardous materiuls, Tenant shall not use or permit the use of the Premises in any manner thac will tend (o create a nuisance, constitute waste, ot tend to disturb other texts or occupants of the shopping center or tend fo {injure the ceputation of the shopping center. 6,03 Forbidden Uses, No ouetion, fire sale, bankruptoy sales, sidewalk sales, going out of business sale or continuous discount operation may be conducted in the Premises without the wrltten consont of Landlord, which dy be withteld at Landlord's sole discretion. : - Tenant shall use his/her best efforts to complete or cause to be completed, all deliveries, loading. tuntonding, rubbish removal and other services to the Premises priot to 10:00 A.M, of ench day. Landlord reserves the right to further regulate the activities of Tenant in regard tc deliveries and servicing of the Premises, and Tenant agrees to abide by such further nondisoriminatory regulations of Landtord, 6.05 __ Other Rutes and Regulations “Tenant sholl comply at all times with the Rules and Regulations attached to this Lease ond such amgndments and modifications tiercof and additions thereto as Landlord may from time to tinte reasonably adopt for the sattly, care and cleanliness of the shopping center or the presecvation of good order therein, Landlord shall not be liable to Tenant or othor person fo comply with such Rules and Regulations, ARTICLE Vit MAINTENANCE, REPAIRS AND ALTERATIONS 2.01 Landlord's Responsibility, . Subject to the provistons of Article TX hereof, Landlord shall, during the term of this Lease, keop in First class order, condition and repair the foundatlons and exterior walls (excluding the interior surface of exterior walls and excluding all windows, doors, plato glass and showcase and down spouts, gultens ond roo!) of tke Premises, except for any damage thereto caused by ony negligent act or omission of Tenant orhishher agents, employees or invitees, and except for reasonable wear and tear: provided, however, that Landlord shall have no obligation to repatr until a reasonable time after the recolpt by Landlord of written notice of the need for repairs, Tenant walves tho provistons of Civil Code Sections 1941 and 1942 with respect to Landlord's obligations for tenantabllity of the Premises and Tenant's rights to make repalrs and deduct the expenses of such repairs from rent, Initials Ave. Tandidte TenantPage 5 of 18 ment by . ‘Tenant ‘half reimburse andlor, ns additional rent, for Tenant's proportionate sbare (as herein defined) ofall coats and oxpensés incurred by Landlord for the foregoing maintenance and repair. Such costs shull exeludo partial or complete restoration necessitated by casualty, bul inolude Landlord's cost of insuring the Premises as provided ia Section 8,03 hereof, ‘Tenant's proportionate share of such costs will bo that proportion thereof which the gross floor area of the Promises benrs fo the gross floor area of all improveinents contajned within the shopping center, The term "gross floor urea” shall have the ® meaning given it in Section 16.04, 2.03 ___‘Tenint’s Responsibility, By entry hereunder, Tenant acknowledges that the Premises and appurtenances are th good, clean and sanitary ordorand sepair Except os expressly set forth-tiereln;-Tenanty-at-his/her-sole expense shall ‘maintain in good order and repair, including necessary replacements, all portions of the interior aud exterior of the Promises ond appurtenances, including, without linltation, floor structures, pipes and condults, utility installations, alr conditioning and heating equipment, glazing and doors, Tenant, nt hisher solo expense, shalt keep and maintain the Premises and appurtenances clean and sanitary. ‘Tenants obligatlons shall include, without fimilation, Keeping portions of sewers und drains provided for thé exclusiva benefit of Tenant open and clear and keeping tho sidewalk adjacent to this Premises olean, Tenant shall not allow refuse + or other waste raaterials o accumulate outside tho Premises except on the day of scheduled scavenger pick-up service and then only in covered containers in areas approved for [hat purpose by Landlord. ‘Tenant shall point, varnish, wallpaper, or otherwise redecorate or renovate the interldr of the Premises and Tenants trade fixtures at least once during every four-year period during the term of this Lease, Any and all repairs of any nature whatsoever shall be at the sole expense of Tenant, except such as may be caused by negligence or willful misconduct of Landlord, hissher agents or employees, Tenant, at hier sole expense shall procure and maintain in effect at all times during tho (erm of this Lease, a preventive maintenance agreement with » qualified mechanleat coutractor covering any eating or air conditioning equipment provided by Landlord ‘ond upon request shall provido Landlord with a copy thereof, 2.04 __Condiilon Upon Sumender, : ‘On the fast day of tho torm hereof, Tenant will remove his/her siyns and trade fixtures from the leased Premises und will surrender the leased Premises and appurtenances to Lendlord in a sate of good repale, reasonable wear and tear, obsolescence and damage hy fie, uct of God or elements, or damage which Landlord is required to repair hereunder excepted. IC Tenant falls to perform higher obligation uader Section 7.03 and Scetion 7.04 herein, Landlord may at hither option, after five (5) doys' writen notice fo Tenant, enter upon the Premises and put the samne in good order, condition and ropait and the cost thereof shall become due and payable o8 additional rent by Tenant to Landtord tipon demand, 2 improve . (a) Tenant shall not, without prior written consent of Landlord, which consent shall not unreasonably be withheld, make any alteratfons, Improvements, remodeling or additions (o elther the inferlor or exterior of the Premises or to fixtures installed therein in accordance with approved fixture plans, or mark, paint, drill or in any way deface any portion of the Premises, All alteratlons, improvements, remodeling or dons shall be subject to the provisions of Article XVII and at feast five (5) working days prior to undertaking any construction pursuant hereto, Tenant shall servo written notice upon Landlord setting forth the date vrkisto commence, Landlord shail have the right at all reasonable times (o post and keep posted on the Premises such notices of nonresporsibility es Landlord may deem necessary for the protection of Landlord and the fee from mechanio's and materialman's Lens, , (b) All alterations, improvements, remodeling, additions or fixtures, other than trade fixtures not permaviently affixed to the Promises, which may be made or installed In the Premises and which are attached {o the floor, wall or ceiling of the Premises, ond any floor covering whlch }s cemented or otherwise aflixed to the floor of the Premises, shall at the termination of this Lease become the property of Landlord and remain upon and bo surrendered with tho Premises, provided, however, that Landlord can elect within ten (10) days ‘bufore the expiration of the term, or within five (5)days after terntination of the term, to require Tenant to remove any alterations that Tenant has made to the Premises, If Landlord so clects Tenant-at his/her cost shall restate the Premises to the condition designated by Landlord in his/her clection, before the last day of the (orm, or within five (S) days after notice of eleatian ts given, whichever is lator, 2.06 itis “Tenant chal Keep tho’Premises toll times Jn neat, lean ond sanitary condition, shalt nother commit nor pert any waste 6r nulsonce ttereon, and shall Joep the wolks and corridors adjacont thereto free from Tenants wast debe Antelads: 1x five Vandlord . TeonntPage 6 of 18 . ARTICLE VILL INSURANCE} INDEMNITY 8.01 __Tenant to Maintain, . . Tenant shall at all times during the term hereof and at Tenant's sole cost and expense, molntain in