Preview
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF PLACER
WKN
Superior
LED
Court of Cali
ounty of Placer ra
PB
DU
ON
©
JMK GOLF, LLC, a California limited Case No.: SCV0043612
ONAnMWRONPEFODOANAURANEO
liability company,
STATEMENT OF DECISION;
V. PROPOSED JUDGMENT
BFN BB Be
BETSEY ALESSI aka BETSEY M.
BP
ALESSI aka BETSEY MARIE ALESSI,
NNNNNNNN
et al.
KF BP FP
INTRODUCTION
The gravamen of this dispute centers on what, if any, damages have been suffered
from the breach of a commercial lease for a premises utilized for a restaurant
operation located within a piece of property!. A contract pertaining to the property
is at issue. Based upon a stipulation between the parties, there is no dispute as to
the validity of the contract between the parties.
Eureka Road Suite100, Roseville,California,95661 inPlacer County. The
1 The “Premises” islocated at 1465
within abuilding within ashopping center known asStone Point.
“Premises” are situated
Page - 1 -
Plaintiff is represented by Richard H. Gray of the Law Office of Richard H. Gray.
The defendant is represented by Eric O. Jeppson of Jeppson & Griffin, LLP.
NY
W
For reasons stated herein, plaintiff is awarded total damages of $80,440.00 plus
KR
attorney fees to be determined after a properly filed motion.
DH
FINDINGS
AN
Jury trial was waived by both parties and the case proceeded as a less than 2 hour
oO
trial before the court. At the conclusion of the plaintiff's oral argument, a
O
Statement of Decision was requested. However, plaintiff failed to specify those
Be
KH
controverted issues as to which itwas requesting a statement of decision. Several
BPWNH
ee
days subsequent to the submission of the matter by the parties to the court, a
voicemail message seeking to withdraw the request for a statement of decision was
Be
left by plaintiff's counsel for the court clerk of the undersigned. This message was
DU
deemed an ex parte communication. The court sent a Notice of Ex Parte
BP
Communication to all parties. No subsequent action has been taken by the parties
WAN
BPP
as to a request for a Statement of Decision.
BFP
Ow
However, Plaintiff filed Objections to the Proposed Statement of Decision.
NNN
Initially, the court did not receive any further response from Defendant as to the
BWNHH
Proposed Statement of Decision or as to the Objections of Plaintiff. The court now
recognizes the DEfendant did indeed file Objections to those of the Plaintiff. That
NY
filed document was timely although it was lost in the vacuum of hundreds of filed
NN
documents that have not made their way to the court files in various matters. Such
An
was the situation with Defendant’s Objections. The court has reviewed and
the court
NNN
considered the Objections of each party. As to the Plaintiff's Objections,
ON
upon those in a separate ruling. As to Defendant’s Objections they were
ruled
Page - 2 -
addressed in the aforementioned ruling on Plaintiff's Objections with the exception
of attorney fees. That issue was addressed in the Introduction of the Proposed
NY
Statement of Decision and is clarified herein.
BFW
1. Statement of Decision Requirements
NH
BD
Pursuant to Code of Civil Procedure Section (CCP) 632 and California Rules of
Court (CRC) 3.1590 and 3.1591, this Statement of Decision is intended to explain
DAN
the legal and factual basis as to the controverted issues at the trial.
Oo
The purpose of a statement of decision is to provide an explanation of the factual
OO
and legal basis for a decision upon the trial of a question of fact by the court.
KH
ee
(Onofrio v. Rice (1997) 55 Cal.App.4™ 413, 424-425.) “A statement of decision
PWN
by the parties. Instead, it
Be
need not address all the legal and factual issues raised
need do no more than state the grounds upon which the judgment rests, without
BB
necessarily specifying the particular evidence considered by the trial court in
DU
of Emeryville (2000) 79 Cal.App.4
HP
reaching its decision.” (Muzquiz v. City
1106, 1124-1125.)
DWN
BPP
all facts which support the trial
WO
Thus, a statement of decision need not include
KP
CO
court’s decision. A statement of decision need only include ultimate facts, not
NNN
evidentiary facts. It is also not necessary for a statement of decision to contain a
WNHH
detailed evidentiary analysis, since the court is not required to make findings with
regard to detailed evidentiary facts or make minute findings as to individual items
NNN
KR
of evidence.
An
The court is not required to address how it resolves intermediate evidentiary
NNN
conflicts, or respond point by point to the various issues posed in a party’s request
ON
a statement of decision. (Muzquiz v. City of Emeryville, supra, at p. 1126.)
for
Page - 3 -
The court may not be subjected to an unreasonable interrogation as to detailed
BH
evidentiary facts. (Muzquiz v. City of Emeryville, supra, 79 Cal.App.4" at 1124.)
NBO
A trial court is not required to subject itself to an inquisition under the guise of a
W
request for statement of decision. (Casa Blanca, supra, 159 Cal.App.3d at 525.)
HR
OT
A careful review of all briefings, exhibits, and finder of fact confidential trial notes
WD
of the trial testimony as well as the various pleadings has been conducted in an
AN
effort not to have overlooked anything that might bear upon the decision in this
Oo
case.
HE
OC
2. Credibility of Witnesses/Parties
Be
KF
ee
Whom does the court believe — and why? There is no law on judging credibility.
WN
Guidelines and elementary observations in the form of stock jury instructions and
ee
HP
the Evidence Code were utilized and referred to by this Court. The demeanor,
Be
and
UN
attitude, and character of a witness while testifying are observed, evaluated
DBD
Be
provided proper weight in a court trial just the same as in a jury trial.
BY
WBN
the whole truth to the end that he or she does not
BP
One who speaks must speak
stated; one who is asked for or
HO
conceal any facts which materially qualify those
KF
TODO
must be truthful, and the telling of a half-truth calculated to
NN
volunteers information
Pogue, (2004) 121 Cal.App. 4h
FP
deceive is fraud. Vega v. Jones, Day, Reavis &
NY
282, 292; Cicone v. URS Corp., (1986) 183 Cal. App. 3" 194, 201; Shafer v.
N
BRWN
& Gladstone, (2003) 107 Cal. App. 4th
NY
Berger, Khan, Shafton, Moss, Figler, Simon
amount to a lie if it is understood to be the whole.
NY
54, 72. Half of the truth may
Whiteley v. Philip Morris Inc., (2004) 117 Cal. App. 4% 635, 675.
NN
nu
N
N
CO
N
Page - 4 -
It is often stated if one tells the truth, then one doesn’t have to remember a “story”.
Be
For most witnesses and parties, testifying is an unusual experience and they can be
WH
expected to be on edge. As stated in part, CACI Jury Instruction 107 reads, “... You
may believe all, part, or none of a witness’s testimony....if you decide that a
BP
witness has deliberately testified untruthfully about something important, you may
DMN
choose not to believe anything that witness said...” Evidence Code section 780 has
also been considered and the various factors have been given great weight as to the
ON
testimony of the parties.
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10 The decision in this case turns on the credibility of the witnesses and the weight to
be given the proffered evidence (both testimonial and documentary exhibits). The
12 court has given great weight to the lack of credibility of the parties and witnesses
13 including their actions during the events giving rise to the case coupled with their
14 court presented testimony.
15
16 3. Events found true by the Court
17 Simply stated, the parties executed a written Standard Form Shopping Center
18 Lease for the Premises on or about June 1, 2018. A written First Amendment to the
19 Lease was executed on or about December 19, 2018. Defendant’s husband was
20 also a signator to the leases.
21
22 Before commencing restaurant operations, defendant’s husband was diagnosed
23 with a recurrence of terminal cancer. Plaintiff was notified in April of 2019 of the
24 cancerous condition and that it would be too difficult for defendants to continue the
25 restaurant operation. On July 4, 2019, defendant’s husband succumbed to his
26 terminal cancer.
27
28
Page - 5 -
Plaintiff did not procure a replacement tenant and lease until on or about October
KB
24, 2019. However, the replacement lease (Q1227 Lease) did not commence until
HB
January 1, 2020. Defendant presented evidence that operations under the Q1227
W
Lease actually commenced much earlier than the Q1227
PR
Lease terms.
HT
Based upon the testimony of the witnesses and parties, the exhibits, and
BD
the
stipulations (of damages being the sole issue), and further based upon the causes of]
ON
action and the good faith duty to mitigate, this Court determines the following facts
Oo
are found to be true:
10
a. Unpaid rent as of June 2019 equals $36,723.00.
12 b. Rent and triple-net from July to December equals $24, 912.00.”
c. Deferred rent equals 449.00.°
13
d. Pro-rata share of commission of Q1227 Lease equals $18, 326.00.4
14
e. Attorney’s fees are to be determined by way of post-verdict motion.
Ls f. The total of damages without attorney’s fees is $80,440.00.
16
17
//
//
18
/
19 //
20 //
21 //
//
22
//
23
24
2 The rateof $12,160.00 per month for 3 months isused fora totalof $36,480.00, lessthe security deposit by
25 defendant of $11,568.00 forthe total of$24,912.00.
26 3Deferred rent of$17,576.29 less creditfrom the Q1227 Lease while factoring in both the increased rentand
triple-netcharges under the Q1227 Lease totals$17,127.36 for adifference of $448.93 rounded to $449.00.
27
4 70% of $26,052.00 isundisputed given the evidence. The Court finds is
Plaintiff not entitled to commissions
28
already paid forthe lease of defendant.
Page - 6 -
DECISION
HB
NY
Plaintiff has met its burden of proof and it is entitled to damages and judgment.
W
The total damages without attorney’s fees and legal interest
BP
is $80,440.00.
Attorney fees will be determined after a properly filed motion by Plaintiff.
DH
Plaintiff is directed to prepare the proposed judgment and to submit it to the parties
for approval as to form before submitting it to the court.
ON
It is so ORDERED.
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Dated: 4, /0 0 Lf, iL k. /-
ee
FF
Honofablé Mic pel W. J
ee
HB
Judge of the i cer Sup¢rior Court
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BR
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BP
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BP
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//
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NY NY
//
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DUM
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//
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ON
Page - 7 -
SUPERIOR COURT OF CALIFORNIA
Cc
wntyor BF f
IN AND FOR THE COUNTY OF PLACER SEp “4
NY
CLERK’S CERTIFICATE OF MAILING (C.C.P. §1013a@4)
W
Case No.: SCV-0043612
BR
Case Name: JMK Gold LLC vs. Alessi
|,the undersigned, certify that | am the clerk of the Superior Court of California, § y of
DN
Placer, and |am not a party to this case.
AN
|mailed copies of the documents(s) indicated below: statement of decision, proposed
judgment.
Oo
Oo
True copies of the documents were mailed following standard court practices in a sealed
ee
HF
envelope with postage fully prepaid, addressed as follows:
ee
HB
Richard Gray, Esq. Eric Jeppson, Esq.
Re
W
Law Office of Richard Gray Jeppson & Griffin LLP
1500 River Park Drive, Suite 115-B 1478 Stone Point Drive, Suite 100
HR
Sacramento, CA 95815-4607 Roseville, CA 95661
Bee
WN
Re
WD
|am readily familiar with the court’s business practices for collecting and processing
correspondence for mailing; pursuant to those practices, these documents are delivered to
RB
WAN
a
BB
[X] the US Postal Service: mailing September 11, 2020~
oO
[_] Other:
OO
NO
FP
On September 11, 2020 in Placer County, California.
DN
NY
BPWNYN
JAKE CHATTERS
NY
NY
Dated: September 11, 2020 by:
K. Harging, Devt Clerk
NY
DU
NY
NN
ON
Page - 8 -
Preview
SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF PLACER WKN Superior LED Court of Cali ounty of Placer ra PB DU ON © JMK GOLF, LLC, a California limited Case No.: SCV0043612 ONAnMWRONPEFODOANAURANEO liability company, STATEMENT OF DECISION; V. PROPOSED JUDGMENT BFN BB Be BETSEY ALESSI aka BETSEY M. BP ALESSI aka BETSEY MARIE ALESSI, NNNNNNNN et al. KF BP FP INTRODUCTION The gravamen of this dispute centers on what, if any, damages have been suffered from the breach of a commercial lease for a premises utilized for a restaurant operation located within a piece of property!. A contract pertaining to the property is at issue. Based upon a stipulation between the parties, there is no dispute as to the validity of the contract between the parties. Eureka Road Suite100, Roseville,California,95661 inPlacer County. The 1 The “Premises” islocated at 1465 within abuilding within ashopping center known asStone Point. “Premises” are situated Page - 1 - Plaintiff is represented by Richard H. Gray of the Law Office of Richard H. Gray. The defendant is represented by Eric O. Jeppson of Jeppson & Griffin, LLP. NY W For reasons stated herein, plaintiff is awarded total damages of $80,440.00 plus KR attorney fees to be determined after a properly filed motion. DH FINDINGS AN Jury trial was waived by both parties and the case proceeded as a less than 2 hour oO trial before the court. At the conclusion of the plaintiff's oral argument, a O Statement of Decision was requested. However, plaintiff failed to specify those Be KH controverted issues as to which itwas requesting a statement of decision. Several BPWNH ee days subsequent to the submission of the matter by the parties to the court, a voicemail message seeking to withdraw the request for a statement of decision was Be left by plaintiff's counsel for the court clerk of the undersigned. This message was DU deemed an ex parte communication. The court sent a Notice of Ex Parte BP Communication to all parties. No subsequent action has been taken by the parties WAN BPP as to a request for a Statement of Decision. BFP Ow However, Plaintiff filed Objections to the Proposed Statement of Decision. NNN Initially, the court did not receive any further response from Defendant as to the BWNHH Proposed Statement of Decision or as to the Objections of Plaintiff. The court now recognizes the DEfendant did indeed file Objections to those of the Plaintiff. That NY filed document was timely although it was lost in the vacuum of hundreds of filed NN documents that have not made their way to the court files in various matters. Such An was the situation with Defendant’s Objections. The court has reviewed and the court NNN considered the Objections of each party. As to the Plaintiff's Objections, ON upon those in a separate ruling. As to Defendant’s Objections they were ruled Page - 2 - addressed in the aforementioned ruling on Plaintiff's Objections with the exception of attorney fees. That issue was addressed in the Introduction of the Proposed NY Statement of Decision and is clarified herein. BFW 1. Statement of Decision Requirements NH BD Pursuant to Code of Civil Procedure Section (CCP) 632 and California Rules of Court (CRC) 3.1590 and 3.1591, this Statement of Decision is intended to explain DAN the legal and factual basis as to the controverted issues at the trial. Oo The purpose of a statement of decision is to provide an explanation of the factual OO and legal basis for a decision upon the trial of a question of fact by the court. KH ee (Onofrio v. Rice (1997) 55 Cal.App.4™ 413, 424-425.) “A statement of decision PWN by the parties. Instead, it Be need not address all the legal and factual issues raised need do no more than state the grounds upon which the judgment rests, without BB necessarily specifying the particular evidence considered by the trial court in DU of Emeryville (2000) 79 Cal.App.4 HP reaching its decision.” (Muzquiz v. City 1106, 1124-1125.) DWN BPP all facts which support the trial WO Thus, a statement of decision need not include KP CO court’s decision. A statement of decision need only include ultimate facts, not NNN evidentiary facts. It is also not necessary for a statement of decision to contain a WNHH detailed evidentiary analysis, since the court is not required to make findings with regard to detailed evidentiary facts or make minute findings as to individual items NNN KR of evidence. An The court is not required to address how it resolves intermediate evidentiary NNN conflicts, or respond point by point to the various issues posed in a party’s request ON a statement of decision. (Muzquiz v. City of Emeryville, supra, at p. 1126.) for Page - 3 - The court may not be subjected to an unreasonable interrogation as to detailed BH evidentiary facts. (Muzquiz v. City of Emeryville, supra, 79 Cal.App.4" at 1124.) NBO A trial court is not required to subject itself to an inquisition under the guise of a W request for statement of decision. (Casa Blanca, supra, 159 Cal.App.3d at 525.) HR OT A careful review of all briefings, exhibits, and finder of fact confidential trial notes WD of the trial testimony as well as the various pleadings has been conducted in an AN effort not to have overlooked anything that might bear upon the decision in this Oo case. HE OC 2. Credibility of Witnesses/Parties Be KF ee Whom does the court believe — and why? There is no law on judging credibility. WN Guidelines and elementary observations in the form of stock jury instructions and ee HP the Evidence Code were utilized and referred to by this Court. The demeanor, Be and UN attitude, and character of a witness while testifying are observed, evaluated DBD Be provided proper weight in a court trial just the same as in a jury trial. BY WBN the whole truth to the end that he or she does not BP One who speaks must speak stated; one who is asked for or HO conceal any facts which materially qualify those KF TODO must be truthful, and the telling of a half-truth calculated to NN volunteers information Pogue, (2004) 121 Cal.App. 4h FP deceive is fraud. Vega v. Jones, Day, Reavis & NY 282, 292; Cicone v. URS Corp., (1986) 183 Cal. App. 3" 194, 201; Shafer v. N BRWN & Gladstone, (2003) 107 Cal. App. 4th NY Berger, Khan, Shafton, Moss, Figler, Simon amount to a lie if it is understood to be the whole. NY 54, 72. Half of the truth may Whiteley v. Philip Morris Inc., (2004) 117 Cal. App. 4% 635, 675. NN nu N N CO N Page - 4 - It is often stated if one tells the truth, then one doesn’t have to remember a “story”. Be For most witnesses and parties, testifying is an unusual experience and they can be WH expected to be on edge. As stated in part, CACI Jury Instruction 107 reads, “... You may believe all, part, or none of a witness’s testimony....if you decide that a BP witness has deliberately testified untruthfully about something important, you may DMN choose not to believe anything that witness said...” Evidence Code section 780 has also been considered and the various factors have been given great weight as to the ON testimony of the parties. © 10 The decision in this case turns on the credibility of the witnesses and the weight to be given the proffered evidence (both testimonial and documentary exhibits). The 12 court has given great weight to the lack of credibility of the parties and witnesses 13 including their actions during the events giving rise to the case coupled with their 14 court presented testimony. 15 16 3. Events found true by the Court 17 Simply stated, the parties executed a written Standard Form Shopping Center 18 Lease for the Premises on or about June 1, 2018. A written First Amendment to the 19 Lease was executed on or about December 19, 2018. Defendant’s husband was 20 also a signator to the leases. 21 22 Before commencing restaurant operations, defendant’s husband was diagnosed 23 with a recurrence of terminal cancer. Plaintiff was notified in April of 2019 of the 24 cancerous condition and that it would be too difficult for defendants to continue the 25 restaurant operation. On July 4, 2019, defendant’s husband succumbed to his 26 terminal cancer. 27 28 Page - 5 - Plaintiff did not procure a replacement tenant and lease until on or about October KB 24, 2019. However, the replacement lease (Q1227 Lease) did not commence until HB January 1, 2020. Defendant presented evidence that operations under the Q1227 W Lease actually commenced much earlier than the Q1227 PR Lease terms. HT Based upon the testimony of the witnesses and parties, the exhibits, and BD the stipulations (of damages being the sole issue), and further based upon the causes of] ON action and the good faith duty to mitigate, this Court determines the following facts Oo are found to be true: 10 a. Unpaid rent as of June 2019 equals $36,723.00. 12 b. Rent and triple-net from July to December equals $24, 912.00.” c. Deferred rent equals 449.00.° 13 d. Pro-rata share of commission of Q1227 Lease equals $18, 326.00.4 14 e. Attorney’s fees are to be determined by way of post-verdict motion. Ls f. The total of damages without attorney’s fees is $80,440.00. 16 17 // // 18 / 19 // 20 // 21 // // 22 // 23 24 2 The rateof $12,160.00 per month for 3 months isused fora totalof $36,480.00, lessthe security deposit by 25 defendant of $11,568.00 forthe total of$24,912.00. 26 3Deferred rent of$17,576.29 less creditfrom the Q1227 Lease while factoring in both the increased rentand triple-netcharges under the Q1227 Lease totals$17,127.36 for adifference of $448.93 rounded to $449.00. 27 4 70% of $26,052.00 isundisputed given the evidence. The Court finds is Plaintiff not entitled to commissions 28 already paid forthe lease of defendant. Page - 6 - DECISION HB NY Plaintiff has met its burden of proof and it is entitled to damages and judgment. W The total damages without attorney’s fees and legal interest BP is $80,440.00. Attorney fees will be determined after a properly filed motion by Plaintiff. DH Plaintiff is directed to prepare the proposed judgment and to submit it to the parties for approval as to form before submitting it to the court. ON It is so ORDERED. oO Re OO Dated: 4, /0 0 Lf, iL k. /- ee FF Honofablé Mic pel W. J ee HB Judge of the i cer Sup¢rior Court ee W // / | BR Re // / Be HN BP DW // BP WON // RP // KP HO ODO NO // FP NY // NY NY NY // KRW NY // DUM NN // NN ON Page - 7 - SUPERIOR COURT OF CALIFORNIA Cc wntyor BF f IN AND FOR THE COUNTY OF PLACER SEp “4 NY CLERK’S CERTIFICATE OF MAILING (C.C.P. §1013a@4) W Case No.: SCV-0043612 BR Case Name: JMK Gold LLC vs. Alessi |,the undersigned, certify that | am the clerk of the Superior Court of California, § y of DN Placer, and |am not a party to this case. AN |mailed copies of the documents(s) indicated below: statement of decision, proposed judgment. Oo Oo True copies of the documents were mailed following standard court practices in a sealed ee HF envelope with postage fully prepaid, addressed as follows: ee HB Richard Gray, Esq. Eric Jeppson, Esq. Re W Law Office of Richard Gray Jeppson & Griffin LLP 1500 River Park Drive, Suite 115-B 1478 Stone Point Drive, Suite 100 HR Sacramento, CA 95815-4607 Roseville, CA 95661 Bee WN Re WD |am readily familiar with the court’s business practices for collecting and processing correspondence for mailing; pursuant to those practices, these documents are delivered to RB WAN a BB [X] the US Postal Service: mailing September 11, 2020~ oO [_] Other: OO NO FP On September 11, 2020 in Placer County, California. DN NY BPWNYN JAKE CHATTERS NY NY Dated: September 11, 2020 by: K. Harging, Devt Clerk NY DU NY NN ON Page - 8 -