Complaint Unlimited Fee AppliesCal. Super. - 6th Dist.September 10, 2019Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVID B. TILLOTSON (State Bar # 148162) Dtillotson@lpslaw.com RAVI D. SAHAE (State Bar # 276113) Rsahae@lpslaw.com LELAND, PARACHINI, STEINBERG, MATZGER & MELNICK, LLP 199 Fremont Street - 21st Floor San Francisco, California 94105 Telephone: (415) 957-1800 Facsimile: (415) 974-1520 Attorneys for Plaintiff Degerli Restaurant Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED CIVIL DEGERLI RESTAURANT, INC., \ Plaintiff, vs. KHOE V TRAN, an individual, NGHIEM THANH TRUONG, an individual, and DOES 1-50, Case No._________________ COMPLAINT FOR BAD FAITH RETENTION OF SECURITY DEPOSIT [CIVIL CODE §1950.7] Defendants. PRELIMINARY ALLEGATIONS 1. Plaintiff Degerli Restaurant, Inc. ("Plaintiff) is, and at all relevant times was, a i California Corporation with its principal place of business in Santa Clara County. 2. Upon information and belief, defendant Khoe V Tran is, and at all relevant times was, an individual and resident of Santa Clara County. 3. Upon information and belief, defendant Nghiem Thanh Truong is, and at all relevant times was, an individual and resident of Santa Clara County. 4. Defendants DOES 1 through 50, inclusive, are sued here under fictitious names. Their true names and capacities are unknown to Plaintiff. When their true names and capacities are ascertained, Plaintiff will amend this complaint by inserting their true names and capacities herein. {FINLMI/0001/PLD/01490343 DOCX} j COMPLAINT FOR BAD FAITH RETENTION OF SECURITY DEPOSIT E-FILED 9/10/2019 4:22 PM Clerk of Court Superior Court of CA, County of Santa Clara 19CV354838 Reviewed By: S. Uy 19CV354838 Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. Upon information and belief, at all times herein mentioned, each defendant individually or fictitiously named herein acted in his, her or its right and also was or is the agent, employee or servant of each of the other defendants, as to each of the matters set forth herein, and each such defendant, whether individually or fictitiously named, was at all times acting within the scope and purpose of such agency, employment or service; or alternatively, if the acts of each such defendant were not authorized at the time, such acts were subsequently ratified by the appropriate principal. GENERAL ALLEGATIONS 6. Plaintiff was the tenant, and Defendants (collectively) were the landlord, under the Commercial Lease dated August 17, 2008, attached hereto as Exhibit A and incorporated by reference (the "Lease"). 7. Pursuant to the Lease, Plaintiff rented the premises located at 383 Castro Street, Mountain View, CA (the "Premises") from Defendants. 8. At the Premises, Plaintiff operated a beer garden and restaurant business under the name "Bierhaus." Bierhaus was a wildly successful, popular mainstay in Mountain View with a long-established customer base. As reported in the Mountain View Voice on January 5, 2018: On a weekday night on Castro Street, it's hard to find a more popular spot than Bierhaus. After 4:30 p.m. or so, the downtown beer garden's patio is packed with patrons, and you can hear the sounds of clinking mugs and chatter echoing down the block.... [AJnyone passing by, or waiting in the long line for a pint, might safely assume that business is going gangbusters. 9. Indeed, the success, vitality and value of the Premises was a direct result of Plaintiffs revitalization efforts and expense over the years. At the inception of the Lease, the Premises was occupied by an unsuccessful Wienerschnitzel fast-food stand. Plaintiff, under different management, attempted a number of different ventures - a sports bar, a seafood diner, a California fusion cafe, a Turkish diner, and a fast-casual burger joint - all without success. 10. Following organizational changes, in 2013, Plaintiff instituted the Bierhaus concept at substantial investment, effort, and expense. It became tremendously successful and remained successful throughout its tenancy. For example, some of the most recent Yelp reviews contained customer feedback such as: {FINLMI/0001/PLD/01490343 DOCX} 2 COMPLAINT FOR BAD FAITH RETENTION OF SECURITY DEPOSIT Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "This place is lively and has a great atmosphere for drinking and hanging out with friends!" (July 21, 2018, four stars) "It's a true Bierhaus, it's awesome Burgers, great Beers and really good atmosphere . . . the ingredients all melded together perfectly ... the staff are very friendly. I'll be back here for sure." (July 14, 2018, five stars) "Busy busy busy! Good food though. Good wine, reasonably priced. . . as we ate, it became more crowded ... I recommend this place for a late afternoon meal and beer." (July 7, 2018, four stars) "There's always people here, and this place is packed from Thursday on to the weekends. . . . I'll definitely be back again .. ." (July 2, 2018, four stars) "Great place to grab a cold one .... my boyfriend loves their burgers." (June 24, 2018, four stars) 11. Despite Plaintiffs success in revitalizing the Premises at its expense, Defendants chose not to renew the Lease, and the Lease terminated as of September 30, 2018. FIRST CAUSE OF ACTION BAD FAITH RETENTION OF SECURITY DEPOSIT [CIVIL CODE §1950.7] Against all Defendants 12. Plaintiff incorporates by reference the allegations of paragraphs 1-11, above. 13. Plaintiff performed all obligations required of it under the Lease, save those obligations which were waived or excused. 14. Pursuant to the terms of the Lease, Plaintiff provided the sum of Thirty Thousand Dollars ($30,000.00) to Defendant as and for a security deposit. 15. On September 30, 2018, Plaintiff vacated the Premises at the expiration of the Lease agreement. 16. Defendants failed to return any portion of the security deposit within thirty (30) days of the Lease's termination, as required by Civil Code §1950.7. 17. On November 8, 2018, Plaintiffs attorney sent a demand letter to Defendants' counsel, Maria S. Bellafronto, Esq, of the law firm of Hopkins Carley ("Hopkins Carley") in San Jose, California, requesting immediate return of the security deposit to Plaintiff. 18. On November 16, 2018, Hopkins Carley replied to Plaintiffs demand letter, contending that Defendants' repair costs exceeded the amount of the security deposit. Defendants failed to provide to Plaintiff or its attorneys any supporting documentation that evidence the {FINLMI/0001/PLD/01490343.DOCX} 3 COMPLAINT FOR BAD FAITH RETENTION OF SECURITY DEPOSIT Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 alleged repair costs for the Premises or estimates for same. 19. To date, Plaintiff has yet to receive any payment whatsoever towards any portion of the security deposit. To date, Plaintiff has likewise received no supporting documentation that evidence Defendants' alleged repair costs or estimates for same. This failure on Defendants' part evidences Defendants' bad faith in retaining Plaintiffs security deposit. 20. Pursuant to Civil Code §1950.7, because Defendants have failed to make a good- faith justification to withhold any portion of Plaintiffs security deposit, Plaintiff is rightfully owed the full security deposit amount of Thirty Thousand Dollars ($30,000.00), plus interest at Ten Percent (10%) [or the maximum legal allowance], and penalties of Two Hundred Dollars ($200.00) pursuant to the bad-faith provisions under §1950.7(1). 21. Asa direct, proximate, and foreseeable result of Defendants' failure to return the Lease's security deposit, Plaintiff has suffered harm by being deprived of monies rightfully due to Plaintiff. PRAYER FOR RELIEF WHEREFORE, Plaintiffs prays as follows: 1. Defendants shall immediately return Plaintiffs security deposit of Thirty Thousand Dollars ($30,000.00) to Plaintiff or its attorneys; 2. Defendants shall pay an additional Two Hundred Dollar ($200.00) in damages pursuant to Civil Code §1950.7(f) as Defendants' retention of Plaintiffs security deposit was made in bad faith. 3. For other compensatory and special damages according to proof; 4. For attorney fees and costs of suit; 5. For prejudgment and postjudgment interest; and 6. For such other relief as the Court may deem proper. {FINLMI/0001/PLD/01490343 .DOCX} COMPLAINT FOR BAD FAITH RETENTION OF SECURITY DEPOSIT Page 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: September [& , 2019 {FINLMI/000 l/PLD/01490343 .DOCX} LELAND, PARACHINI, STEINBERG, MATZGER & MELNICK, LLP Ravi D. Sahae Attorneys for Plaintiff Degerli Restaurant Inc. COMPLAINT FOR BAD FAITH RETENTION OF SECURITY DEPOSIT Page 6 EXHIBIT AHI I ‘ Page 7 COMMERCIAL LEASE This lease is made between Khoc V Tran &. Nghietn Thanh Truong, herein called Lessor, and Dcgcrli Restaurant Inc, Dba Bodrom herein called Lesscc. Lesscc hereby offers to lease from Lessor the premises and associated equipment described in Hxhibit A attached hereto, situated in the City of Mountain View. County of Santa Clara, State of California, described as 383 Castro Street, Mountain View, 94041 upon the following TLRMS and CONDITIONS. Address for Notice: Khoc V Tran & Nghiem Thanh Truong 4953 Shiloh Place. San Jose, Ca 95138 1. I cmi and Rem. Lessor demises the abo\c premises for a term of 5 years, commencing on August 18, 2(HIX. the first payment due on October l*1, 2008 and terminating on September 30th, 2013. or sooner as provided herein at the annual rental of One hundred and Forty four thousand Dollars tS 144,000.00) payable in equal S12,000 installments in advance on the first day of each month for that month's rental, during the term of this lease. All rental payments shall be made to Lessor, in person or by mail Hie rent is agreed by Lessor and Lessee it) increase after the Second year by 3%. 2. Use. I .csscc shall use and occupy the premise for the purpose of a Restaurant. The premises shall be used for no other purpose. Lessor represents that the premises may lawfully be used for such purpose. 3. Care and Maintenance of Premises. Lessee acknowledges that the premises are in good order and repair, unless otherwise indicated herein. Lessee shall, at his own expense and at all times, maintain the premises in good and safe condition, including plate glass, electrical wiring, plumbing and heating installations and any oilier system or equipment upon the premises, and shall surrender the same at termination hereof, in as good condition as received, normal wear and tear excepted. Lessee shall be responsible for all repairs required, excepting the roof, extenor walls, stmctural foundations, and: 4. Alterations. Lessee shall not without first obtaining the written consent of Lessor, make any alterations, additions, or improvements, in. to or about the premises. 5. Ordinances and Statutes. Lessee shall comply with all statutes, ordinances and requirements of all municipal, slate and federal authorities now in force or which may hereafter be in force, pertaining to the premises, occasioned by or afTecling the use thereof by Lessee. 6. Assignment and Subletting. Lessee shall not assign this lease or sublet any portion of the premises without prior written consent of the Lessor, which shall not be unreasonably w ithheld. Any such assignment or subletting without consent shall be void and. at the >. Page 8 option of the Lessor, may terminate this lease. 7. Utilities. All applications and connections for necessary utility services on the demised premises shall be made in the name of Lessee only, and Lessee shall be solely liable for utility charges as they become due. including those for sewer, water, and gas. electricity, and telephone services. 8. Entry and Inspection. lessee shall permit Lessor or Lessor's agents to enter upon the premises at reasonable limes and upon reasonable notice, for the purposes of inspecting the same, and will permit Lessor at any time within sixty (60) days prior to the expiration of this lease, to place upon the premises any usual "To Let" or "For I .ease" signs, and permit persons desiring to lease the same to inspect the premises thereafter. 9. Possession. If Lessor is unable to deliver to deliver possession of the premises at the commencement hereof. Lessor shall not be liable for any rent until possession is delivered, lessee may terminated this lease if possession is not delivered within 7 days of the commencement of the term hereof. 10. Indemnification of Lessor. Lessor shall not be liable for any damage or injury to Lessee, or any other person, or to any property, occurring on the demised premises or any pan thereof, and Lessee agrees to hold Lessor harmless from any claim for damages, no matter how caused. 11. Insurance. Lessees, at his expense, shall maintain plate glass and public liability insurance including bodily injury and property damage insuring Lessee and Lessor with minimum coverage as follows: Lessee shall provide Lessor with a Certificate of Insurance show ing Lessor as additional insured. The Certificate shall provide for a ten-day written notice to Lessor in the event of cancellation or material change of coverage. To the maximum extent permitted by insurance policies which may be owned by Lessor or Lessee, Lessee and lessor, for the benefit of each other, waive any and all rights of subrogation which might otherwise exist. 12 Eminent Domain. If the premises or any part thereof or any estate therein, or any other part of the building materially affecting Lessee's use of the premise, shall be taken by eminent domain, this lease shall terminate on the dale when title vests pursuani to such taking. The rent, and any additional rent, shall be apportioned os of the termination date, and any rent paid for and period beyond that date shall be repaid to Lessee. Lessee shall not be entitled to any part of the award for such taking or any payment in lieu thereof, but lessee may file a claim for any taking of fixtures and improvements owned by Lessee, and for moving expenses. 13. Destruction of Premises. In the event of a partial destruction of the premises during the term hereof, from any cause. Lessor shall forthwith repair the same, pres ided that such repairs can be made within sixty (60) days under existing governmental laws and Page 9 regulations, hut such partial destruction shall not terminate this lease, except that Lessee shall he entitled to a proportionate reduction of rent while suclt repairs are bcittp, made, based upon the extent to which making the repairs cannot be made within sixty tfiO) days. Lessor, at his option, may make the same within a reasonable time, this lease continuing in effect with the rent proportionately abated as afnrcsujJ, and in the event that l essor shall not elect to make such repairs which cannot be made within sixty (60) days, this lease may be terminated at the option of either party. In the event that the building in which the demised premises may be situated is destroyed to an extent of not less than one-third of the replacement cost. Lessor may elect to terminate this lease whether the demised premises be injured or not A total destruction of the building in which the premises may be situated shall terminate this lease. 13 a. la the event Lessor builds a new building. Lessee and Lessor will negotiate a new contract and fair market price. lessee will be given first consideration in negotiations of restaurant 14. Lessor's Remedies on Default. If Lessee defaults in the payment of rent, or any additional rent, or defaults in the performance of any of the other covenants or conditions hereof. Lessor may give Lessee notice of such default and if Lessee does not cure any such default within 30 days, after the giving of such notice (or if such other default is of such nature that it cannot he completely cured w ithin such period, if Lessee docs not commence such curing within such 5 days and thereafter proceed with reasonable diligence and in good faith to cure such default), then Lessor may terminate this lease on not less than 30 days’ notice to Lessee. On the date specified in such notice the term of this lease shall terminate, and Lessee shall then quit and surrender the premises to Lessor, hut I-essce shall remain liable as hereinafter provided. If this lease shall have been so terminated by Lessor. Lessor may at any lime thereafter resume possession of the premises by any lawful means and remove Lessee or other occupants and their effects. No failure to enforce any term shall be deemed a waiver. 15. Security Deposit Lessee shall deposit with I essor on the signing of this lease the sum of t hirty Thousand Dollars (S 30,000.00 ) as security deposit for the performance of Lessee's obligations under this tense, including without limitation the surrender of possession of the premises to Lessor as herein provided. If I -cssor applies any pan of the deposit to cure any default of Lessee. Lessee shall on demand deposit with Lessor the amount so applied so that Ijessor shall have the full deposit on hand at all rimes during the lemi of this lease. 16. Tax Increase. In the event there is any increase during any y ear of the term of this lease in the City, County or State real estate taxes over and above the amount Of SUCh taxes assessed for the tax y ear during which the term of this lease commences, whether because of increased rate or valuation. I .essee shall pay to Lesser upon presentation of paid tax hills an amount equal to 0% of the increase in taxes upon the land and building in which the leased premises are situated. In the event that such taxes are assessed for a -i - Page 10 lax year extending beyond the term of the lease, the obligation of Lessee shall be proportionate to the portion of the lease term included in such year. 17. Common Area I'.xpcnscs. In the event the demised premises are situated in a shopping center or in a commercial building in which there are common areas. Lessee agrees to pay his pro-rale share of maintenance, taxes, and insurance for the common area. 18. Attorney’s Fees. In case suit should be brought for recovery of the premises or for any sum due hereunder, or because of any act which may arise out of the possession of the premises, by either party, the prevailing party shall be entitled to all costs incurred in connection with such action, including reasonable attorney’s fee. 19. Notices. Any notice which wither party may. or is required to give, shall be given mailing same, postage prepaid, to Lessee at the premises, or Lessor at the address shown below, or at such other places as may be designated by die parties from time to time. 20.1 leirs, Assigns, Successors. This lease is binding upon and inures to the benefit of the heirs, successors in interest to the parties. 21. Option to renew. Provided that I .esscc is not in default in the performance of this lease, 1 .esscc shall have the option to renew the lease for an additional term of 60 months commencing at the expiration of the initial lease term. All ol'thc terms and conditions of the lease shall apply during the renewal term. Ihe option shall be exercised by written notice given to Lessor not less than 120 days prior to the expiration of the initial lease term. If notice is not given in the manner provided herein within the time specified, this option shall expire. 22. luitiru Agreement. The foregoing constitutes the entire agreement between the parlies and may be modified in a formal writing signed by bo ill parties. F.xccution hereof: Signed this day of A-.-,/ i } , 20 . Lessor:__ ______j /_______ Iaisscc:^ __ _ ' / • Kdioc Van Tran Mehmet Degcrli Lessor ________ _____________ Lessee:______ ______________ Nghiem ITianh Truong Gtiler, Salih Note: Lessee make partial payment of security deposit in the amount of Ten thousand Dollars ($10,000) and the remainder of security deposit Twenty thousand Dollars ($20,000) will be paid at close of ARC escrow. First month and advance last month rent equal to Twenty four thousand Dollars ($24,000) will he pay on October Is', 2008. 4 - Page 11 San Jose, 09/(Ki/2008 l.ease Addendum This addendum is subject to the contract was signed on August 17th, 2008 between Tenants and Landlords of the premise locate at 383 Castro St, Mountain View Ca, 94041. 1) The ABC Beer and Wine License (Type 41) is belong to the premise Tenants must transfer immediately to the new tenant without charge if tenants move out or con tract is terminated. Each day of delay license transfer or any documents related to prevent the transfer above premise will be charged as daily rent and will apply to tenant security deposit. 2) Physical inventory must be signed off by both parties. Landlord: Khoe V. I ran Tenant: „'/^ ^ < ; Mefamet Degerli “ Landlord:______________ Nghicm T. Truong Tenant: Guler, Shalih
