Response ReplyCal. Super. - 6th Dist.January 30, 2020Phillip G. Vermont, SBN 132035 'Dominique M. Jacques, SBN 290036 RANDICK O'DEA TOOLIATOS VERMONT & SARGENT) LLP 5000 Hopyard Road, Suite 225 Pleasanton, California 94588 Telephone: (925) 460-3700 Facsimile: (925) 460-0969 Attorneys for Plaintiff, Stephens & Stephens (Welsh) LLC, a California limited liability company SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 10 ll 12 13 14 15 16 17 Stephens & Stephens (Walsh) LLC, a California limited liability company, Plaintiff, vs. MiaSole, Inc., a California corporation, MiaSole Hi-Tech Corp., a California corporation, Hanergy Holdings America LLC, Hanergy Holding Group, LTD, and DOES I to 25, Defendants. Case No.: 20CV362433 REPLY TO OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [UNLAWFUL DETAINER- COMMERCIAL] Date: August 6, 2020 Time: 9:15 a.m. Dept: 11 Trial Date: August 7, 2020 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Plaintiff Stephens & Stephens (Walsh) LLC ("Plaintiff") has submitted its Motion for Summary Judgment against MiaSole Hi-Tech Corp., a California corporation ("Defendant"), pursuant to the commercial Lease. Defendant has only opposed Plaintiff s Motion on the basis that "THE COURT SHOULD NOT AWARD PLAINTIFF DAMAGES FOR LATE CHARGES AND INTEREST AS THEY WERE NOT PRAYED FOR IN THE COMPLAINT AND ARE NOT PROPER DAMAGES IN AN UNLAWFUL DETAINER ACTION". (Opposition to Motion for Summary Judgment I:20-21.) Defendant appears to agree that all other amounts claimed in the Motion are owed. Defendant also does not contest how the late charge and interest REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT - CASE NO. 20CV362433 o9730 docx Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/31/2020 10:12 AM Reviewed By: M Vu Case #20CV362433 Envelope: 4691498 are calculated, only that they are not "proper damages". Defendant does not clarify why it believes Plaintiff should not be awarded late charges and interest, or provide any facts or supporting case law to support such claim. 4 II. STATEMENT OF FACTS For the sake of brevity, Plaintiff hereby incorporates the Statement of Facts alleged in Plaintiff s Motion for Summary Judgment. The following facts are additionally relevant to this Reply. The Lease between the parties states: "The term "Rent" as used in this Lease shall refer to Base Rent, Prepaid Base Rent, Real 10 Property Taxes, Operating Expenses, Insurance Costs, repair and maintenance costs, utilities, late charues and other similar charues oavable bv Tenant uursuant to this Lease..." (Emphasis added; 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 Lease $4(e).) "Tenant acknowledges that late payment by Tenant to Landlord of any Rent will cause Landlord to incur costs not contemplated by this Lease, the exact amount of such cost being extremely difficult and impracticable to ascertain... Therefor, if any Rent is not received by Landlord within five (5) days of its due date, Tenant shall pay Landlord a late charge equal to six percent (6'/47) of such overdue payment. Landlord and Tenant hereby agree that such late charge represents a fair and reasonable estimate of the costs that Landlord will incur by reason of any such late payment and that the late charge is in addition to any and all remedies available to the Landlord and that the assessment and/or collection of the late charge shall not be deemed a waiver of any other default. Additionally, all such delinquent Rent or other sums, plus this late charge, shall bear interest from the due date thereof at the lesser of ten percent (1099) per annum or the maximum legal interest rate permitted by law..." (Lease tt 4(c).) Therefore, the amount sought is all "rent" as agreed between the parties. Plaintiff only seeks "rent" as defined in the Lease. In his Declaration submitted with Plaintiff s Motion for Summary Judgment, Plaintiff s manager, Nick Kapranos, calculated the monthly interest and late charges ("rent*') through June 10, 2020, to be $819,007.92 and $ 120,787.97, respectively. (Declaration ofNick Kapranos ("Kapranos Dec.") Exhs. D, E.) Though the Lease states that interest upon default would be at REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT - CASE NO. 20CV362433 469779.69 the lesser rate of 18 percent per annum or the maximum legal interest rate, a lower rate of ten percent (10%) per annum was used. (Kapranos Dec. Exh. E.) III. LAW A. INTKRKST Pursuant to Civil Code section 3287, subd. (a), "A person who is entitled to recover damages certain,... and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day...*'Any legal rate of interest stipulated by a contract remains chargeable after a breach thereof... If a contract... does not stipulate a legal rate of interest, the obligation shall bear interest at the rate of 10 percent per annum after a 10 breach," (Civ. Code )3289.) Further, the detriment caused by the breach of an obligation to pay 12 13 money only, is deemed to be the amount due by the terms of the obligation, with interest thereon. (Civ. Code $3302.) In Chambers v. Security Commercial &k Sav. Bank (1920) 46 Cal.App. 32, 33-34, the court awarded interest on an action to recover possession of real property (Unlawful 14 15 Detainer) after nonpayment of rent, even though the plaintiff did not specifically pray for interest in his complaint. See also, Canal-Randolph Anaheim, Inc. v. Wilkoski (1978) 78 Cal.App.3d 16 477, 492. 17 Plaintiff is entitled to interest in this action, as stated above, even if interest was not 18 19 specifically prayed for in the Complaint. Pursuant to the Lease, Plaintiff could seek an interest rate of 18 percent (18%) per annum after Defendant defaulted on payment of rent. (Lease 20 21 1[21(b).) However, Plaintiff sought the lesser rate of ten percent (10%) per annum, the same rate as the default rate prescribed in Civil Code section 3289. Further, the interest rate described in the Lease is considered "Rent" under theLas.'3 Courts have permitted the collection of "Additional Rent" pursuant to a lease, within an 25 Unlawful Detainer action. (Schulman v. Vera (1980) 108 Cal.App.3d 552, 563 [property taxesj; Folberg v. Clara G.R. Kinney Co. (1980) 104 Cal.App.3d 136, 144 [government assessments].) 26 27 28 'he Lease describes the interest as "Rent" payable by Tenant pursuant to the Lease. (Lease $4(c).) "Rent" is described as including "other similar charges payable by Tenant pursuant to this Lease." (Lease $4(e).) 3 REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT - CASE NO. 20CV362433 46m 0 d The Lease provides notice to Defendant that an interest rate would be owed upon default as "Rent". 3 B. LATE CHARGES Like the interest rate, late charges for late or nonpayment of rent are deemed "Rent" under the Lease. (Lease tt4(c).) Defendant specifically agreed with these charges within the Lease. Therefore, the late charges may be claimed as "Rent" under the Lease. "Late Charges", when classified as "Rent" or "Additional Rent", may be claimed in an Unlawful Detainer case. Canal-Randolph Anaheim, Inc., supra, at 492 [CCP )1161(2) defines default as "payment of rent, pursuant to the lease or agreement under which the property is held.] 10 C. HOLDOVER DAMAGES It is well established that "a landlord is entitled to recover as damages the reasonable 12 13 14 value of the use of the premises during the time of the unlawful detainer..." (Adler v, Elphi ck (1986) 184 Cal.App.3d 642, 649-650.) The amount of damages is the reasonable rental value of the premises during the time that the defendant occupied the property. (Cal. Code of Civ. Proc. 15 16 $ 1174(b); CACI 4340.) The agreed upon "rent" in the Lease is evidence of the reasonable rental value. (Iehr v. Crosby (1981) 123 Cal.App.3d Supp. 1 at 9.) 17 18 Judicial notice may be taken of facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of 19 20 reasonable indisputable accuracy. (Evid. Code $452(h).) By way of example, a court may take judicial notice of the day of the week which a certain date fell upon. (Espinoza v. Rossini (1966) 21 22 23 247 Cal.App.2d 40.) Defendant appears to consent to the damages claimed in Mr. Kapranos'eclaration of holdover damages of $ 1,827,516.22 through June 10, 2020, based on the daily rental value 24 calculated by Mr. Kapranos. Pursuant to statute and case law, Plaintiff is entitled to holdover 25 26 damages of $8,195.14 through at least the date of judgment. Defendant does not claim otherwise in its Opposition, 27 To assist the Court with the holdover rent calculations, Plaintiffprovides the days during 28 REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT - CASE NO. 20CV362433 469730.doux which holdover damages are owed through the date of the hearing on this Motion, August 6, 2020, as follows: 10 11 12 November 1-30, 2019; 30 days December 1-31, 2019: 31 days January 1-31, 2020: 31 days February 1-29, 2020; 29 days March 1-31, 2020: 31 days April 1-30, 2020: 30 days May 1-31, 2020: 31 days June 1-30, 2020: 30 days July 1-31, 2020: 31 days August 1-6, 2020: 6 days Total: 280 days Plaintiff asserts that Defendant has and intends to remain in possession of the real property at issue through at least the date of the hearing on this Motion. Based on the daily rental value calculated by Mr. Kapranos, Plaintiff asserts that $2,294,639.20 in holdover damages will 13 be due as of August 6, 2020. However, Plaintiff defers to the judicial notice of this Court for the2 14 15 16 17 18 19 20 21 22 23 dates upon which holdover damages are owed to Plaintiff. IV. CONCLUSION Interest and late charges are properly demanded in this action, reasonable under the circumstances, and permitted pursuant to the terms of the Lease, as they are classified or defined in the Lease Agreement as "Rent". Further, Plaintiff s holdover damages are not limited to the date through which the supporting declarations calculated such damages. In the event that this Court finds that either interest or late charges are not permissible damages in this action, for any reason, Plaintiff agrees to waive such damages in furtherance of the grant of PlaintifFs Motion. Date: July 31, 2020 RA VE 24 25 26 By: i hp G. rmont 27 280 days x $8,195.14 = $2,294,639.20 28 REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT - CASE NO. 20CV362433 469730 doox PROOF OF SERVICE I, Sue Betti, declare: I am employed in Alameda County, State of California, am over the age of eighteen years, and not a party to the within action. My business address is 5000 Hopyard Road, Suite 225, Pleasanton, California 94588, I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service and/or other overnight delivery. Under overnight delivery practice, all mailings are deposited in an authorized area for pick-up by an authorized express service courier the same day it is collected and processed in the ordinary course of business. On the date set forth below, I served the within: 9 10 11 12 REPLY TO OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT on the parties in this action by placing a true copy thereof in a sealed envelope, and each envelope addressed as follows: Gary Sullivan, Esq. 1565 The Alameda, Suite 100 San Jose, CA 95126 Email: awsullivanlaw&email.corn Attorneyfor MiaSole Hi-Tech Corp. 13 14 [x] (By U.S. Mail) I caused each such envelope to be served by depositing same, with postage thereon fully prepaid, to be placed in the United States Postal Service in the ordinary course of business at Pleasanton, California. 15 16 17 [x ] (By Electronic Service) The above-referenced document was served by electronically mailing a true and correct copy through Randick O'Dea Tooliatos Vermont Bc Sargent, LLP's electronic mail system, to the email addresses set forth as listed above, and in accordance with Federal Rules of Civil Procedure, Rule 5(b). 19 20 21 22 I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on July 31, 2020, at Pleasanton, California. Spetti 23 24 25 26 27 28 PROOF OF SERVICE d 6973 0 docx