20GDCV00569
Assigned for all purposes to: Glendale Courthouse, Judicial Officer: Curtis Kin
Electronically FILED by Superior Court of California, County of Los Angeles on 07/13/2020 12:00 AM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Wong,Deputy Clerk
3
Jeffrey B. Endler, Esq. (SBN 177265)
ENDLER LAW, APLC
14450 Ventura Blvd., Suite 3
Sherman Oaks, CA 91423
Tel: (818) 986-7607
Fax: (866) 308-3843
4
Attorneys for Plaintiff, ARA ESKENIAN
1
2
5
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
7
FOR THE COUNTY OF LOS ANGELES
8
UNLIMITED JURISDICTION
9
10
11
12
13
14
15
16
17
18
19
20
ARA ESKENIAN, an individual dba )
LA CAÑADA SMOG BRAKE &
)
LAMP,
)
)
Plaintiff,
)
)
vs.
)
)
LA CAÑADA UNION, INC., a
)
California corporation, and DOES 1 )
to 10, inclusive,
)
)
Defendants.
)
)
)
)
)
______________________________ )
Case No.:
COMPLAINT FOR DAMAGES FOR:
1) DECLARATORY RELIEF;
2) PRELIMINARY INJUNCTION
AGAINST SUBLESSOR’S
TERMINATION OF TENANCY AND
SUBLESSOR’S REMOVAL OF
PERSONAL PROPERTY FROM THE
COMMERCIAL PREMISES;
3) BREACH OF CONTRACT;
4) RETALIATION (VIOLATION OF
CIVIL CODE SECTION 1942.5(d));
5) BREACH OF THE COVENANT OF
GOOD FAITH AND FAIR DEALING
Plaintiff ARA ESKENIAN, an individual dba LA CAÑADA SMOG BRAKE
21 & LAMP hereby alleges as follows:
PRELIMINARY ALLEGATIONS
22
23
1.
Plaintiff ARA ESKENIAN, AN INDIVIDUAL DBA LA CAÑADA
24
SMOG BRAKE & LAMP (“Plaintiff”) is, and at all times herein mentioned was,
25
operating a certified smog inspection business, and subletting his commercial space
26
from the Master Tenant (i.e., Defendant, La Cañada Union, Inc.) at the business
27
address of 1540 Foothill Blvd. (One Bay), La Cañada, CA 91011 (“the Premises”) in
28
Los Angeles County, California.
-1COMPLAINT FOR DECLARATORY RELIEF, ETC.
1
2.
The Premises are located within the City of La Cañada Flintridge and the
2
County of Los Angeles, and this commercial tenancy is subject to any and all
3
ordinances passed by the Los Angeles County Board of Supervisors. The relevant
4
“ordinance” at issue here are a set of guidelines, named “Revised Guidelines to Aid in
5
the Implementation of the Los Angeles County Eviction Moratorium During the
6
COVID-19 Eviction Moratorium” dated June 3, 2020 (“Revised Guidelines”), which
7
was created through the Executive Order Board resolutions, and amendments to the
8
Los Angeles County Temporary Rent Control Ordinance and Eviction Moratorium,
9
that are at issue in this case.
10
3.
Defendant LA CAÑADA UNION, INC., a California corporation
11
(“Defendant”) is a Master Tenant of the Premises who operates a Union 76 gas station
12
offering car repair services, who has been given the authority from the Owner of the
13
Premises to sublet the one bay, which subtenant, Plaintiff ESKENIAN currently
14
occupies.
15
that business.
16
4.
Defendant’s CEO/President Charbel Kamar (“Kamar”) is the owner of
The true names and capacities, whether individual, corporate, associate, or
17
otherwise, of defendants sued herein as DOES 1 to 10, inclusive, are unknown to
18
Plaintiff, who therefore sue said defendants by such fictitious names. Plaintiff will
19
amend this complaint to show such true names and capacities when the same are
20
ascertained. Plaintiff is informed and believes and thereon alleges that said
21
defendants, and each of them, is responsible in some manner for Plaintiff’s damages
22
herein alleged.
23
5.
Plaintiff is informed and believes and thereon alleges that, at all times
24
herein mentioned, DOES 1 to 10, inclusive, were the agents and legal representatives
25
of defendants and in doing the things hereinafter alleged, were acting within the
26
course and scope of such agency.
27
28
6.
On or about November 8, 2017, the parties negotiated in good faith a 4
year sublease of the Premises to begin on March 1, 2018 (“the Sublease”); however,
-2COMPLAINT FOR DECLARATORY RELIEF, ETC.
1
the way it was written was a 2 year sublease, in addition to 2 one-year options to
2
extend the Sublease. A true and accurate copy of the Sublease is attached hereto as
3
Exhibit 1 and incorporated by reference as though set forth in full. The option
4
paragraph at Paragraph 16 of the Sublease contains one inherent contradiction which
5
necessitates the filing of this lawsuit. At Paragraph 16, the Sublessor grants the
6
Sublessee the two Options contingent on not being in default. However, also at
7
Paragraph 16, the Sublessor retains the right to not honor the Option, at his sole
8
discretion.
9
7.
In early January 2020, Plaintiff ESKENIAN informed Defendant’s
10
principal, Mr. Kamar, that Plaintiff was exercising the first of its 2 options to extend
11
the Sublease contained in Paragraph 16. A true and accurate copy of ESKENIAN’s
12
exercising option letter is attached hereto as Exhibit 2 and incorporated by reference as
13
though set forth in full.
14
8.
On or about January 22, 2020, Defendant responded in writing to
15
Plaintiff’s exercise of the first option, and wrote “After careful consideration of your
16
request, we are unable to extend your current Sublease for another year.” But
17
Defendant was willing to continue renting month-to-month, and specifically stated that
18
“All other terms and provisions of your Sublease dated September 22, 2017 will
19
remain the same.” Defendant at that point raised the rent by $75.00 per month, to be
20
effective March 1, 2020.
21
January 22, 2020 is attached hereto as Exhibit 3 and incorporated by reference as
22
though set forth in full.
23
9.
A true and accurate copy of Defendant’s letter dated
As the Court is well aware, officially the Governor and the Mayor of Los
24
Angeles and the Los Angeles City Council and the L.A. County Board of Supervisors,
25
respectively, declared eviction moratoriums and rent freezes in effect due to the
26
enormity of the COVID-19 Pandemic, and each jurisdiction has declared as of today’s
27
date that the moratorium is in effect from March 4, 2020 thru at least July 31, 2020.
28
According to the L.A. County Board of Supervisors Revised Guidelines instituted on
-3COMPLAINT FOR DECLARATORY RELIEF, ETC.
1
June 3, 2020, at Paragraph 5.1, it reads “the Moratorium is effective as of March 4,
2
2020 and shall continue in full force and effect through July 31, 2020, unless further
3
extended or repealed by the Board of Supervisors.” And at Paragraph 5.2 of the
4
Revised Guidelines, it reads “the Moratorium applies to the unincorporated areas of
5
the County and in all cities located within the County, except in a city that has adopted
6
an eviction moratorium which remains in full force and effect and is applicable to
7
residential and commercial Tenancies, including but not limited to mobilehome space
8
renters, within the entirety of the city’s jurisdictional boundary, in which case the
9
city’s moratorium shall apply. If a city’s moratorium does not address one or more of
10
these categories of Tenants, the County’s Moratorium shall apply in that city to those
11
categories of Tenants.”
12
10. The Governor’s Eviction Moratorium and the L.A. County Board of
13
Supervisors’ Eviction Moratorium both protect commercial tenants with the exact
14
same protections granted residential tenants. In the case of L.A. County, small
15
businesses with 9 or less employees (here, Plaintiff ESKENIAN’s business has less
16
than 9 employees) have 12 months’ time to repay any delinquent rents that occurred
17
during the local emergency period caused by COVID-19.
18
11. According to Paragraph 6.1 of the Revised Guidelines, all Landlords have
19
been ordered not to “serve a notice to evict on or otherwise attempt to evict a Tenant
20
subject to the Moratorium” including “for any reason not based on any alleged fault by
21
the Tenant, including but not limited to the reasons set forth in California Code of
22
Civil Procedure Sections 1161 et seq., California Civil Code 798.56, and Los Angeles
23
County Code Chapters 8.52.090, unless the eviction is reasonably necessary to protect
24
the health and safety of the occupants or those who live and work nearby.”
25
12. Despite the fact California law vis a vis the Executive Order of Gov.
26
Gavin Newsom, and the California Rules of Court, and the aforesaid L.A. County
27
Board of Supervisors’ Guidelines re: Eviction Moratorium, on or about June 6, 2020,
28
Defendant served Plaintiff with a Thirty-Day Notice of Termination of Tenancy, in
-4COMPLAINT FOR DECLARATORY RELIEF, ETC.
1
direct violation of Los Angeles County’s moratorium on evictions. A true and
2
accurate copy of Defendant’s Thirty-Day Notice of Termination of Tenancy is
3
attached hereto as Exhibit 4 and incorporated by reference as though set forth in full.
4
13. The Guidelines state at Paragraph 10 that all Landlords must not harass or
5
seek to intimidate a Tenant protected by this Moratorium. The Guidelines define
6
harassment and acts of intimidation to include “threatening termination of the lease
7
and/or eviction, threatening to serve and/or serving a notice of termination and/or
8
eviction, demanding payment for rent which
9
is not yet due pursuant to the Moratorium, shutting off utilities, locking a Tenant out
10
11
of a unit, or verbally or physically threatening a Tenant.”
14. As a direct result of Defendant/Landlord’s threat to terminate the lease,
12
which was delivered in writing on or about June 6, 2020, Plaintiff ESKENIAN
13
retained an attorney to persuade the Landlord that his Thirty Day Notice of
14
Termination of Tenancy (Exhibit 4) was not enforceable. In part, that letter read, “. . .
15
it is an entirely different subject that we must discuss, about your misunderstanding, of
16
the new L.A. County laws relating to the Eviction Moratorium and Rent Freeze. If
17
you attempt to file any eviction based on that improper Thirty Day Notice to Quit, or if
18
you file an eviction based on non-payment of rent during May and/or June 2020
19
and/or July 2020, or if you attempt to collect a rent raise after March 1, 2020, you will
20
be violating the new L.A. County laws passed by the Los Angeles County Board of
21
Supervisors as of March 4, 2020, and updated as recently as June 23, 2020.” A true
22
and correct copy of Plaintiff’s counsel’s letter dated June 25, 2020 is attached hereto
23
as Exhibit 5.
24
15. Despite the fact the Guidelines prevent the threatening of termination of
25
any lease, Defendant engaged the services of an attorney to argue the validity of the
26
Thirty Day Notice of Termination of Tenancy (Exhibit 4), and the
27
Defendant/Landlord’s right to terminate the tenancy during the local emergency
28
period. That letter, in part, read, “It is my hope that after you review this letter, after
-5COMPLAINT FOR DECLARATORY RELIEF, ETC.
1
you call me, and after you speak to your client, your client will abide by the terms of
2
his month-to-month lease and, pursuant to the June 6, 2020 Notice of Termination of
3
Tenancy, will vacate the property by July 10, 2020. My clients are ready, willing and
4
able to work with your client to have his personal property and personal equipment
5
removed from the property on or before July 10, 2020.” A true and correct copy of
6
Defense counsel’s letter dated July 2, 2020 demanding that Plaintiff vacate during the
7
Moratorium period of time (i.e., on July 10, 2020) is attached hereto as Exhibit 6.
8
9
16. As a direct result of Defendant’s service of the Thirty Day Notice of
Termination of Tenancy on June 6, 2020 and Defense counsel’s July 2, 2020 letter
10
demanding that Plaintiff permanently vacate his commercial tenancy at latest on July
11
10, 2020, Plaintiff ESKENIAN has good cause to believe that Defendant plans on
12
violating local law and California law by disrespecting and/or ignoring the Eviction
13
Moratorium, and/or by resorting to self-help or some other coercive method to end the
14
tenancy, in spite of local laws and California law. Because all California courts are
15
not issuing Summons on commercial evictions, except for ones that are necessary to
16
protect public health and safety, there is very little reason to believe that Defendant
17
plans on utilizing the civil unlawful detainer court system in a proper way.
18
19
17. Accordingly, the parties are engaged in a controversy that can only be
adjudicated by a Court of competent jurisdiction.
20
FIRST CAUSE OF ACTION
21
DECLARATORY RELIEF
22
(Against all Defendants)
23
18. Plaintiff repeats, realleges and incorporates by reference, as though set
24
forth in full herein, the foregoing Paragraphs 1 through 17, inclusive, of this
25
complaint.
26
19.
Pursuant to CCP section 1060, Plaintiff claims that an actual
27
controversy has arisen between the parties as to their respective rights, duties and
28
obligations with respect to their Sublease, inclusive of the Options Paragraph,
-6COMPLAINT FOR DECLARATORY RELIEF, ETC.
1
especially as interpreted in accordance with L.A. County Board of Supervisors
2
Revised Guidelines instituted on June 3, 2020, as well as California and L.A. County’s
3
Eviction Moratorium; therefore, Plaintiff seeks a declaration from this Court with
4
respect to the Parties’ rights, duties and obligations with respect to their Sublease.
5
20. An actual controversy has arisen and now exists between Plaintiff
6
(Sublessee) and Defendant (Sublessor) about many issues involving Plaintiff’s tenancy
7
at the Premises, including but not limited to the following:
8
9
10
11
12
13
14
a) the legitimacy and/or validity of Plaintiff’s exercise of the first option to
extend the Sublease by 1 year from March 1, 2020 thru February 28, 2021;
b) the correct amount of monthly rent beginning March 1, 2020, due to the
exercise of the first option;
c) the unenforceability of Defendant’s Thirty Day Notice of Termination of
Tenancy dated June 6, 2020;
d) the unenforceability of one inherently contradictory sentence contained in
15
Paragraph 16 of the Sublease (i.e., the Option Paragraph) where it reads “Option to
16
extend shall be at the sole discretion of the Sublessor and Master Lessor”;
17
e) the legitimacy and/or validity of Plaintiff’s right to exercise the second
18
option to extend the Sublease by 1 year from March 1, 2021 thru February 28, 2022;
19
f) Plaintiff’s entitlement to pay deferred rent pursuant to the Revised
20
21
22
23
Guidelines, and California law pursuant to the Governor’s Executive Order; and
g) Plaintiff’s entitlement to not be evicted pursuant to the L.A. County
Eviction Moratorium and the Revised Guidelines.
21. Plaintiff ESKENIAN requests that this Court’s assistance, and Plaintiff
24
specifically requests that this Court determine each controversy, as enumerated above,
25
by interpreting how the L.A. County Eviction Moratorium and the Revised Guidelines
26
affect Defendant’s alleged entitlement to terminate this tenancy at this point in time, as
27
well as determine whether Defendant is honoring the intent of the parties’ Sublease
28
with respect to the duration of the Sublease, and the monthly rent during the possible 4
-7COMPLAINT FOR DECLARATORY RELIEF, ETC.
1
2
year period.
22. Plaintiff further alleges that Defendant is in breach of the covenant of
3
good faith and fair dealing, and is intentionally denying the existence or validity of the
4
Los Angeles County Eviction Moratorium, the existence or validity of the Revised
5
Guidelines, and the existence or validity of the Governor’s Executive Orders with
6
respect to commercial tenants’ rights to defer rent, and those tenants’ entitlement to
7
not be evicted during the protected period.
8
9
23. Pursuant to CCP section 1060, Plaintiff is pursuing a declaration of his
and his company’s rights to continue working and utilizing the commercial Premises
10
during the pendency of this action, and is also pursuing a declaration of his rights
11
under the Sublease and his entitlement to the Options to extend said Sublease.
24. Pursuant to CCP section 1060, Plaintiff is further pursuing a declaration of
12
13
the Parties’ rights with respect to the lack of service of notice upon them in
14
combination with payment of the mandatory relocation assistance per LAMC Section
15
151.09.
16
SECOND CAUSE OF ACTION
17
PRELIMINARY INJUNCTION AGAINST SUBLESSOR’S
18
TERMINATION OF TENANCY OR SUBLESSOR’S REMOVAL
19
OF PERSONAL PROPERTY FROM THE COMMERCIAL PREMISES
20
(Against all Defendants)
21
25. Plaintiff repeats, realleges and incorporates by reference, as though set
22
forth in full herein, the foregoing Paragraphs 1 through 24, inclusive, of this
23
complaint.
24
26. According to the Revised Guidelines at Paragraph 6.1, “a Landlord shall
25
not serve a notice to evict on or otherwise attempt to evict a Tenant subject to the
26
Moratorium . . . For any reason not based on any alleged fault by the Tenant, including
27
but not limited to the reasons set forth in California Code of Civil Procedure Sections
28
1161 et seq., California Civil Code 798.56, and Los Angeles County Code Chapters
-8COMPLAINT FOR DECLARATORY RELIEF, ETC.
1
8.52.090, unless the eviction is reasonably necessary to protect the health and safety of
2
the occupants or those who live and work nearby.”
3
27. However, in violation of those enforceable regulations of Los Angeles
4
County, Defendant did in fact serve a notice to evict Plaintiff, twice (once on June 6,
5
2020, and once on July 2, 2020).
6
28. Defendant served a formal written document to evict Plaintiff from the
7
commercial Premises by serving a Thirty-Day Notice of Termination of Tenancy, on
8
or about June 6, 2020, during the protected period of time covered by the existing
9
Revised Guidelines and the L.A. County Eviction Moratorium. That Notice of
10
Termination of Tenancy dated June 6, 2020 literally contains the language, “. . . your
11
tenancy of the premises is terminated effective at the end of a thirty (30) day period
12
after service on you of this notice, or July 10, 2020, whichever is later. . . . If you fail
13
to quit and deliver possession, legal proceedings will be instituted against you to
14
obtain possession. . . “ (See Exhibit 4)
15
29. On July 2, 2020, Defendant also caused to be served through his attorney,
16
another letter repeating the assertion that the Thirty Day Notice of Termination of
17
Tenancy is effective, where the letter reads, “It is my hope that after you review this
18
letter, after you call me, and after you speak to your client, your client will abide by
19
the terms of his month-to-month lease and, pursuant to the June 6, 2020 Notice of
20
Termination of Tenancy, will vacate the property by July 10, 2020.
21
ready, willing and able to work with your client to have his personal property and
22
personal equipment removed from the property on or before July 10, 2020.”
23
My clients are
30. Plaintiff is entitled, like all Los Angeles businesses during the COVID-19
24
Pandemic, to not be evicted or threatened with eviction, unless such eviction is
25
necessary to protect public health and safety. At present, this eviction is based only
26
on a claim of terminating a month-to-month tenancy. At present, there is a case and
27
controversy where Plaintiff claims that any current eviction is improper because the
28
tenancy has been extended to February 28, 2021, and is not a month-to-month
-9COMPLAINT FOR DECLARATORY RELIEF, ETC.
1
tenancy. At present, there is also a case and controversy where Plaintiff claims he is
2
being harassed and intimidated to waive his rights to continue in his business and
3
commercial tenancy at the subletted Premises.
4
31. After service of this Complaint, Plaintiff shall file a formal motion
5
seeking a Preliminary Injunction enjoining Defendant from filing and serving further
6
Notices of Termination of Tenancy during the pendency of this action, unless such
7
notices and/or unlawful detainers are authorized by this Honorable Court as in
8
compliance with the L.A. County Eviction Moratorium and Revised Guidelines, as
9
well as the California Eviction Moratorium.
10
THIRD CAUSE OF ACTION
11
BREACH OF CONTRACT
12
(Against all Defendants)
13
32. Plaintiff repeats, realleges and incorporates by reference, as though set
14
forth in full herein, the foregoing Paragraphs 1 through 31, inclusive, of this
15
complaint.
16
33. On or about November 8, 2017, Plaintiff and Defendant entered into a
17
Sublease, which contained Paragraph 16, an Option paragraph that states the Sublessor
18
(Defendant) grants Sublessee (Plaintiff) two 1-year options to extend the Sublease,
19
effectively making the 2 year Sublease into a 4 year Sublease, if Plaintiff exercises his
20
entitlement to those options.
21
34. Even prior to the commencement of Plaintiff taking possession of the
22
sublet Premises, Defendant began reneging on the existence of the Option by forcing
23
Plaintiff to sign a different Addendum to the Sublease that allegedly erased the
24
existence of an entire Addendum to the Lease, which included the existence of the two
25
1-year options to extend the Sublease.
26
35. As indicated above, instead of giving a reason why the first Option to
27
extend would not be honored, Defendant wrote Plaintiff that instead of honoring the
28
extension, on March 1, 2020, not only would the Sublease be converted into a month-10COMPLAINT FOR DECLARATORY RELIEF, ETC.
1
to-month tenancy and that the rent would be increased by $75.00 per month beginning
2
on March 1, 2020 (i.e., said rent increase actually is what was expected and written
3
into the original Sublease and Addendum at Paragraph 16). (See Exhibit 3)
4
36. As of January 1, 2020, Plaintiff had performed all of their obligations
5
pursuant to the Sublease, except as to those obligations that may have been excused,
6
waived, or with respect to which the Defendant prevented him from completing, and
7
as to those, Defendant is estopped from asserting. After March 4, 2020, due to the
8
sizeable impact COVID-19 Pandemic had on all commercial business operations,
9
Plaintiff’s business volume was reduced by 50%. Accordingly, starting May 1, 2020,
10
Plaintiff informed Defendant that Plaintiff would pay $1,000 of $1,575.00 monthly
11
rent, and like to defer payment of the remaining $575.00. Although Defendant
12
accepted the partial payment in May 2020, Defendant in bad faith rejected the partial
13
payment in June 2020, and immediately on June 6, 2020, served Plaintiff with the
14
Thirty Day Notice of Termination of Tenancy (Exhibit 4).
37. In January 2020 and at all times thereafter, Defendant’s denial of the
15
16
existence of Paragraph 16 and Plaintiff’s entitlement to exercise the Option in the first
17
place, is and was a material breach of contract.
38. After March 1, 2020, Defendant’s continued denial of the applicability of
18
19
the L.A. County Eviction Moratorium and the California Eviction Moratorium and the
20
Revised Guidelines to the existing subtenancy, is and was a material breach of
21
contract.
22
23
39. As a direct and proximate result of the breach of contract, Plaintiff did not
receive the benefit of his bargain, i.e., the full 4 year sublease.
24
40. But for Defendant’s continued and persistent claims that Plaintiff is not
25
entitled to continue his Sublease, pursuant to Paragraph 16 and pursuant to the
26
County’s and State’s restrictions and moratorium on evictions, this litigation would
27
not have been necessary.
28
///
-11COMPLAINT FOR DECLARATORY RELIEF, ETC.
1
41. As a further direct and proximate result of the breach of contract, Plaintiff
2
has been damaged in an amount to be determined at the time of trial, including
3
attorney’s fees, together with interest thereon at the legal rate.
4
FOURTH CAUSE OF ACTION
5
RETALIATION (VIOLATION OF CIVIL CODE SECTION 1942.5(d))
6
(Against all Defendants)
7
42. Plaintiff repeats, realleges and incorporates by reference, as though set
8
forth in full herein, the foregoing Paragraphs 1 through 41, inclusive, of this
9
complaint.
10
43. Pursuant to Civil Code section 1942.5(d), a Landlord shall not cause a
11
Tenant “to quit involuntarily, bring an action to recover possession, or threaten to do
12
any of those acts, for the purpose of retaliating against the [tenant] because he or she .
13
. . has lawfully and peaceably exercised any rights under the law.”
44. As indicated above, Plaintiff informed Defendant, as was Plaintiff’s right
14
15
under state law and the L.A. County Eviction Moratorium and the Revised Guidelines,
16
that Plaintiff would be deferring partial rent beginning May 1, 2020.
45. Defendant’s reaction to deferring partial rent in June 2020 was to reject
17
18
the entirety of Plaintiff’s payment of $1,000.00 partial rent for the month of June
19
2020, and not just to reject the rent, but to terminate the tenancy pursuant to an
20
unlawful Termination of Tenancy (Exhibit 4).
21
22
46. Presumptively, Defendant’s reaction of terminating the tenancy was
unlawful retaliation for Plaintiff’s exercise of his lawful rights to defer the rent.
23
47.
As a direct and proximate result of Defendant’s retaliation, Plaintiff has
24
incurred damages, including but not limited to fear and anxiety associated with
25
continued use of the Sublease, as well as the attorney’s fees and court costs associated
26
with this action to enforce Plaintiff’s continue use and operation of his business at the
27
sublet Premises.
28
///
-12COMPLAINT FOR DECLARATORY RELIEF, ETC.
1
48. Pursuant to Civil Code section 1942.5(h)(2), Defendant’s retaliatory acts
2
in terminating the subtenancy makes Defendant liable to Plaintiff for punitive
3
damages, for Defendant’s oppressive acts, in an amount of not less than $6,000.00.
4
5
49. Pursuant to Civil Code section 1942.5(i), Plaintiff is entitled to an award
of reasonable attorney’s fees.
6
FIFTH CAUSE OF ACTION
7
BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING
8
(Against all Defendants)
9
50. Plaintiff repeats, realleges and incorporates by reference, as though set
10
forth in full herein, the foregoing Paragraphs 1 through 49, inclusive, of this
11
complaint.
12
51. In every contract or agreement there is an implied covenant of good faith
13
and fair dealing. This covenant ensures that each party will not do anything unfairly to
14
interfere with the right of the other party to receive the benefits of the contract;
15
however, the implied promise of good faith and fair dealing cannot create obligations
16
that are inconsistent with the terms of the contract.
17
52. Plaintiff claims that Defendant violated its inherent duty to act fairly and
18
in good faith, each time Defendant, during the Pandemic period, threatened to
19
terminate Plaintiff’s subtenancy.
20
53. In addition, Plaintiff claims that Defendant violated its inherent duty to act
21
fairly and in good faith, each time Defendant denied the original intent of the Parties,
22
which was that at signing of the Sublease in November 2017, Defendant granted
23
Plaintiff two 1-year options to extend the Sublease.
24
54. In addition, Plaintiff claims that at all times in 2020, Defendant has denied
25
that this subtenancy is governed by all the regulations, ordinances, executive orders of
26
Los Angeles County, the L.A. Board of Supervisors, and the State of California, and
27
based on that denial, has harassed and intimidated Plaintiff in direct violation of all
28
those regulations, ordinances and orders, in a bad faith attempt to terminate the
-13COMPLAINT FOR DECLARATORY RELIEF, ETC.
1
subtenancy, and evict Plaintiff and Plaintiff’s business from the commercial Premises.
2
55. In addition, Plaintiff claims that at all times in 2020, Defendant has denied
3
that Plaintiff is entitled to defer rent payments pursuant to the Revised Guidelines.
4
56. Defendant’s denial that the L.A. County Eviction Moratorium applies to
5
this subtenancy, as well as his other actions taken to terminate the Sublease in 2020,
6
leads one to conclude that Defendant never intended to honor the Sublease inclusive of
7
the two 1-year options to extend the Sublease, and that these actions appear to be
8
exercised in bad faith.
9
57. Plaintiff has performed all of their obligations pursuant to the Sublease,
10
except as to those obligations that may have been excused, waived, or with respect to
11
which the Defendant prevented him from completing, and as to those, Defendant is
12
estopped from asserting.
13
58. As a direct and proximate result of Defendant’s breaches of the implied
14
covenant of good faith and fair dealing, Plaintiff has been damaged in an amount to be
15
determined at the time of trial, together with interest thereon at the legal rate.
16
59. As a further direct and proximate result of Defendant’s breaches of the
17
implied covenant of good faith and fair dealing, Plaintiff has been forced to retain
18
legal representation just to enforce his contractual rights as well as his statutory rights.
19
WHEREFORE, Plaintiff prays for judgment against Defendants as follows:
20
1.
For declaratory relief, specifically a declaration from this Court with
21
respect to the Parties’ rights, duties and obligations with respect to their
22
Sublease;
23
2.
For a preliminary injunction, enjoining Defendant from pursuing
24
further notices of termination of tenancy or unlawful detainer, unless
25
based on necessity to protect public health and safety, pending the
26
outcome of this litigation;
27
3.
For general damages, in an amount according to proof;
28
4.
For special damages, in an amount according to proof;
-14COMPLAINT FOR DECLARATORY RELIEF, ETC.
1
5.
For reasonable attorney’s fees, pursuant to contract;
2
6.
For reasonable attorney’s fees, based on statute;
3
7.
For an award of punitive damages, in an amount according to proof;
4
8.
For pre-judgment interest;
5
9.
For costs of suit incurred herein; and
6
10.
For such other and further relief as the court may deem proper.
7
8
DATED:
July 11, 2020
Respectfully submitted,
ENDLER LAW, APLC
9
10
11
12
13
By:________________________________________
Jeffrey B. Endler, Esq., Attorney for Plaintiff,
ARA ESKENIAN, an individual dba
LA CAÑADA SMOG BRAKE & LAMP
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-15COMPLAINT FOR DECLARATORY RELIEF, ETC.
EXHIBIT 1
STANDARD SUBLEASE
MULTl-TENANT
AIR COMMERCIAL REAL ESTATE ASSOCIATION
1.
Basic Provisions ("Basic Provisions").
1.1
Parties: This Sublease ("Sublease"), dated for reference purposes onlyx September 22, 2017
is made by and betweenx
_ _________ ________________�-----------
La Canada Union, Inc., a California Corporation
("Sublessor") and
Ara Eskenian, dba OMV Smog Brake & Lamp
X
("Sublessee"), (collectively the "Parties", or individually a "Party").
1.2(a) Premises: That certain portion of the Project (as defined below), known asx one service bay area
located in the repair shop of thegas station - see attached site plan
consisting of approximatelyx 400 sq.ft.
square feet ("Premises"). The Premises are located atx
1540 Foothill Boulevard
_ _n=ge_ le
in the City of x
_ _____L_o_sA
_ g=-_ e_ ______ , County of x
_ d__ a_Fli_ n_ tr_ id
_ _s ______
_ ____
La_ C
_ _ a _ na
California
. In addition to Sublessee's rights to use
, with zip codex 91011
State ofx
---------
and occupy the Premises as hereinafter specified, Sublessee shall have nonexclusive rights to the Common Areas (as defined below)
as hereinafter specified, but shall not have any rights to the roof, the exterior walls, or the utility raceways of the building containing the
Premises ("Building") or to any other buildings in the Project. The Premises, the Building, the Common Areas, the land upon which
they are located, along with all other buildings and improvements thereon, are herein collectively referred to as the "Project."
unreserved andx
O
reserved vehicle parking spaces.
1.2(b) Parking:x one (1)
(0)
(2)
zero
months commencingx January 1, 2018
years andx
1.3
Term:x two
December 31, 2019
("Commencement Date") and ending x
("Expiration Date").
Early Possession: If the Premises are available Sublessee may have non-exclusive possession of the Premises
1.4
- N/A ("Early Possession Date").
commencing
day of
per month ("Base Rent)", payable on the first (1st)
Base Rent: $
1,500.00
1. 5
each month commencing __;J::..:a=-:nc.:..u
1.;::.
1.,_, =2-=0...:.
8 ___________________________
'--'=-r=-y
=-a
_
IZ] If this box is checked, there are provisions in this Sublease for the Base Rent to be adjusted.
1.6
Sublessee's Share of Operating Expenses: 0
percent (_0_%) ("Sublessee's Share"). In
the event that that size of the Premises and/or the Project are modified during the term of this Lease, Lessor shall recalculate Lessee's
Share to reflect such modification.
1.7
Base Rent and Other Monies Paid Upon Execution:
(a)
Base Rent: $
1,500.00
for the period
(b)
(c)
first month's rent
("Security Deposit").
Security Deposit:$----'----------$1,500.00
N/A
N/A
for
0ther: $
----------------
(d)
Total Due Upon Execution of this Lease:$ 3,000.00
1. 8
Agreed Use: The Premises shall be used and occupied only for -: -:
Smog Check, Brake& Lamp inspection, Uber inspectionand DMV Reg�i s t-rat�io_n_S_e
rv�i
_ce.....
fo_ ______
r
_
automobiles/vehicles.
and for no other purposes.
1.9
Real Estate Brokers:
(aj
Represe11tati011. Tl,e follo.vi11g ,eal estate b,oke,s ( tl,e 1181oke1s11 j a11d b,okerage 1elatio11sl1ips exist in
this-transactio,, (el ,eek applicable boxest
-NIAreprese11ts 9t!t,lesso, exclt:1sioely ("Sttblesso, 1s Broke1").
-NIArep,ese11ts OubleSSee exclusively (11Sttblessee's Broker"j, 01
□
□
□ _____-_NI_A_-
_________________ 1ep, ese,its botl, Sublesso, aI1d Gublessee ("Bttal Age11cy''j.
Pa9111e11t to Broke1s. Upo11 execution a11d delioeryof tl1is Sublease by botli Pa1ties, Sublesso1 sl,all pay to
tl1e D1oke1s fo1 tl1e brokerage se1vices re11de1ed by tl1e D1oke1sthe fee ag1eed to i11 tl1e attached sepa1ate-vvritte11 ag1ee111e11t 01 if rto
LI J
I fl
I 11 I ;f
di
% of tl,e total Dase Re11t pa9able ful tl,e origi11al tern, oHh-e Stiblease, tire
ti,,
EXHIBIT 2
From:
January 4, 2020
La Canada Smog Brake & Lamp
Ara Eskenian
1540 Foothill Blvd
La Canada 91011
To:
La Canada Union 76
Charbel Kamar
1540 Foothill Blvd
La Canada 91011
Dear Mr. Kamar
This letter ls regarding my upcoming lease renewal in March of 2020, I would like
to extend my lease with current terms as indicated in original lease contract to be
able to extend to March of 2021.
I would like to ask that we have the option to continue the tenancy lease contact
to an additional four more years.
Thank you for your time, and consideration in this matter. Please let me know if
you have any questions or concerns you would like to discuss.
EXHIBIT 3
EXHIBIT 4
THIRTY-DAY NOTICE OF TERMINATION OF TENANCY
Notice Date: June 6, 2020
TO: Mr. Ara Eskenian, dba La Canada Smog Brake & Lamp
of the leased premises located
at: 1540 Foothill Boulevard, La Canada,
California · 91011
specifically referencing: the Sublease dated September 22, 2011 made by and between La canada
Union, Inc. a California Corporation ("Sublessor") and Ara Eskenian. dba DMV smog Brake & Lamp,
aka La Canada Smog Brake & Lamp ("Sublessee") for that certain portion o f the Proiect, known as
"one service bay area consisting of approximately 400 sguare feet."
,
PLEASE T A�E NOTICE that your tenancy of the premises is terminated effective at the end of a thirty
(30) day penod after service on you of this notice. or July
2020 whichever is later.
,o.
You must peaceably vacate the premises and remove all of your personal property on or before the
date indicated above. If you fail to quit and deliver possession, legal proceedings will be instituted
against you to obtain possession and such proceedings could result in a judgment against you which
may include attorneys• fees and court costs as allowed by law, plus the Owner/Agent may recover an
additional punitive award of six hundred dollars ($600) in accordance with California law for such
unlawful detention. This legal action will also result in forfeiture of the sublease rental agreement.
This Notice of Termination of Tenancy does not relieve you of payment of any financial obligation for
rent owed until the actual date of termination of tenancy.
If you fail to fuHill the terms of your credit obligations, a negative credit report reflecting on your credit
history may be submitted to a credit reporting agency.
o
Effective July 1 2020 your tenancy shall end and your Sublease agreement shall be considered
terminated and no longer valid and this Notice constitutes a NOTICE OF FORFEITURE of your
Sublease.
June§ 2020
Date
___..,.,.,tp·
llr. Ala Elbnlln, dlll La Cmldl Smog Brau a Lamp
1MJFooNIBW.,LaClnada,CA 11011
("11U.S.CenliedMd)
(ancO
llr.An&lt1■11n
_,,..,_A.,...
■111• HIii, CA t1Sf5
(VIIU.S.CertlledMd)
,_,,
Owner: La canada Union, Inc.
EXHIBIT 5
ENDLER LAW, APLC
JEFFREY B. ENDLER
14450 VENTURA BOULEVARD, SUITE 3
ATTORNEY AT LAW
(818) 986-7607
(866) 308-3843 FAX
SHERMAN OAKS, CALIFORNIA 91423
June 25, 2020
Via e-mail (lcunion76@gmail.com) and U.S. Mail
Mr. Charbel Kamar, Owner
La Cañada Union, Inc.
1540 Foothill Blvd.
La Cañada, CA 91011
Re:
Your Subtenant:
Premises Address:
Subject:
Ara Eskenian dba La Cañada Smog Brake & Lamp
1540 Foothill Blvd. (One Bay), La Cañada, CA 91011
Your Improper 30 Day Notice to Quit
Dear Sir:
PLEASE TAKE NOTICE that this law office now represents Ara Eskenian dba La Cañada
Smog Brake & Lamp, and its vested interest in its Sublease, and related Options, at the abovereferenced commercial premises located at 1540 Foothill Blvd., La Cañada, CA 91011. Please
direct all your future correspondence to me. I am very interested in speaking with you, sooner
than later, in order for us to avoid court and litigation.
PLEASE TAKE NOTICE that, in my professional opinion, your subtenant Ara Eskenian dba
La Cañada Smog Brake & Lamp properly exercised the first of his two available 1-year
options. That Option was intended to extend the two year lease by one more year, i.e., March
1, 2020 thru February 28, 2021. To be clear, there is no such thing as a waivable option. You
seem to believe that a landlord is allowed to cancel an option, or not honor an option to extend
a lease, after it has already been exercised. There is no such thing. Here, the option described
at Paragraph 16 of the Sublease Addendum is designed to allow the tenant to continue their
lease.
So this letter is to give you notice that Mr. Eskenian has every intent on continuing his business
operations at this location for the full 4 years that was promised him. And I have been retained
as a landlord-tenant attorney to make sure he gets the benefit of his bargain.
It is for that reason that your Thirty Day Notice to Quit dated June 6, 2020 has no merit. I
urge you to recognize that your negative attitude toward Mr. Eskenian has not and will not
result in him waiving his legal rights. So please cease and desist from your efforts to evict him
improperly.
Mr. Charbel Kamar
Re: Ara Eskenian / Your Proposed Termination of the Sublease
June 25, 2020
Page 2 of 3
Obviously, it is your right to agree to disagree with me about my interpretation of the Sublease
and the Sublease Addendum, and your right to retain counsel. But your disagreement on that
subject only concerns the interpretation of the lease. On the other hand, it is an entirely
different subject that we must discuss, about your misunderstanding of the new L.A. County
laws relating to the Eviction Moratorium and Rent Freeze. If you attempt to file any eviction
based on that improper Thirty Day Notice to Quit, or if you file an eviction based on nonpayment of rent during May and/or June 2020 and/or July 2020, or if you attempt to collect a
rent raise after March 1, 2020, you will be violating the new L.A. County laws passed by the
Los Angeles County Board of Supervisors as of March 4, 2020, and updated as recently as
June 23, 2020.
For your convenience and for your reference, please see the enclosed “LA County Eviction
Moratorium/Tenant Bill of Rights”. If you were not aware, all tenants in California were
immediately granted this “rent” reprieve on March 4, 2020 due to the enormity of the COVID19 Pandemic, and its large-scale effects to the California economy.
My client paid all his rents, in full, thru April 30th. As for May 2020 rent, he paid you $1,000
of the $1,575 owed. And for June 2020 rent, you refused to accept the offered $1,000 of
$1,575 owed for that month. Because you have no earthly reason to reject partial payment of
June 2020 rent, I recommend that you accept his re-offer of June 2020 partial payment of rent
in the sum of $1,000.
Your May 16, 2020 letter, explaining your understanding of the rent “deferral” program, is
plain wrong. There is literally not one law, statute, regulation or explanation of the new rules
relating to deferral of rent that intimates that the only businesses entitled to relief are
businesses that were forced to actually close their doors. In fact, the LA County Resolution
which encompasses the Rent Freeze and Eviction Moratorium was extended thru July 31, 2020
by vote of the LA County Board of Supervisors, on June 23, 2020. Stated as simply as
possible, your Thirty Day Notice to Quit dated June 6, 2020 has no merit.
According to Section III(g) of the LA County Resolution, “Landlords, and those acting on their
behalf, are prohibited from harassing or intimidating Tenants for acts or omissions by Tenants
permitted under this Moratorium.” Your Thirty Day Notice, itself, could be deemed as both
harassing and intimidating.
I understand that I am the attorney, and here, I am the opposing party’s attorney. But I still
implore you to speak to any attorney relating to the vast COVID-19 rent protections that have
Mr. Charbel Kamar
Re: Ara Eskenian / Your Proposed Termination of the Sublease
June 25, 2020
Page 3 of 3
been granted to all commercial and residential tenants in California, whether by their
individual cities (such as Glendale and South Pasadena) or by a Mayor and City Council of the
entire City of Los Angeles, or by the County Board of Supervisors for the County of Los
Angeles, or by the Governor himself.
As an example, one of the paragraphs contained on the enclosed “Resolution” form used by
LA County officials relating to COVID-19 rent disputes is the following: “I certify that all the
information that I have given is true, correct and complete to the best of my knowledge. I wish
to resolve this dispute through the Los Angeles County Department of Consumer and Business
Affairs. I understand that DCBA will follow the terms set forth by the Tenant Eviction
Moratorium guidelines and adhere to the terms of the Eviction Moratorium when attempting to
resolve a dispute. I understand that neither I nor the other party are required to enter into an
agreement, resolving the dispute, and that, under the Tenant Eviction Moratorium,
residential tenants or commercial tenants with 9 or fewer employees have up to twelve (12)
months following the end of the moratorium period to pay back any unpaid rent.
Commercial tenants with 10 or more but less than 100 employees have up to six (6) months
following the end of the moratorium period to pay back any unpaid rent.”
I hope you will reassess your desire to go to Court, in order to litigate your attempted
termination of the Sublease. I assure you my client, the subtenant, is in good standing under
that same Sublease, and deserves to remain in his tenancy thru at least February 28, 2022.
Like I stated earlier, I welcome your phone call or letter.
Thank you for your attention to this matter.
Very truly yours,
Jeffrey B. Endler, Esq.
Attorney for Subtenant, Ara Eskenian dba La Cañada Smog Brake & Lamp
Enclosures:
1) LA County Eviction Moratorium/Tenant Bill of Rights
2) LA County Rent Resolution Form
LA COUNTY EVICTION
MORATORIUM
TENANT BILL OF RIGHTS
LA County Board of Supervisors enacted a temporary eviction moratorium for LA County.
These protections went into effect March 4, 2020 and will continue until July 31, 2020, and
may be extended upon review of the Board on a month-to-month basis. As a residential or
commercial tenant in LA County, you have the following rights:
THE RIGHT TO DELAY PAYING
YOUR RENT IF YOU HAVE BEEN
FINANCIALLY IMPACTED BY
COVID-19 OR PAY PARTIAL
RENT, WITHOUT FEAR OF BEING
EVICTED
THE RIGHT TO A 12-MONTH
DEFERMENT PERIOD AFTER THE
MORATORIUM ENDS TO PAY
BACK ANY RENT OWED Tenants are
required to pay any current rent due once
the moratorium ends. NOTE: commercial
tenants with 10 or more employees will have six (6)
months to pay back any unpaid rent in equal
payments, unless other agreements were made with
the property owner.
THE RIGHT TO NOT BE CHARGED
LATE FEES OR INTEREST ON
UNPAID RENT DURING THE
MORATORIUM PERIOD Landlords
are prohibited from charging late fees and
interest for any rent unpaid during the
moratorium period OR evict for
nonpayment of these charges after the
THE RIGHT TO PROVIDE A
moratorium period ends.
SELF-CERTIFICATION TO YOUR
LANDLORD AS PROOF OF
YOUR INABILITY TO PAY RENT
DUE TO COVID-19 Landlords are
required to accept a self-certification.
Your notice does not need to be in
writing, however, DCBA recommends
you do so and retain a copy for your
records. NOTE: Commercial tenants with more
THE RIGHT TO NO RENT
INCREASES DURING THE
MORATORIUM PERIOD if you live in
than 9 employees must also provide written
documentation to support their claim.
unincorporated Los Angeles County and
are subject to the Rent Stabilization
Ordinance or Mobilehome Rent
Stabilization Ordinance, you are protected
from rent increases during the
moratorium period.
THE RIGHT TO BE FREE FROM
HARASSMENT OR RETALIATION
for exercising your rights as a tenant,
regardless of your immigration status.
THE RIGHT TO ASSISTANCE if you
believe that your rights have been
violated, you can contact DCBA.
IF YOU HAVE ADDITIONAL QUESTIONS CONTACT US AT:
(833) 223-7368 or by email at rent@dcba.lacounty.gov
Message us @LACountyDCBA on Twitter, Facebook, and Instagram
LEARN MORE AT RENT.LACOUNTY.GOV
CLEAR
RENT RESOLUTION
(COVID-19 /MORATORIUM)
Complete and return this form to:
COUNTY OF LOS ANGELES DEPARTMENT OF
CONSUMER AND BUSINESS AFFAIRS
Email: Rent@dcba.lacounty.gov
Telephone: (833) 223-RENT (7368)
INSTRUCTIONS: Fill out this form completely. Please type or write clearly in ink. Attach copies of documents (don’t
include originals) that support your request, such as contracts, receipts, notices, etc.
PARTY REQUESTING RENT RESOLUTION
Name:
Name
Address:
MY DISPUTE IS WITH:
Name
Address:
Address
City, State, Zip Code:
Name:
City, State, Zip Code
Telephone:
Alternate Telephone:
E-mail:
Fax:
Email
Rental Property Address:
Fax
Address
City, State, Zip Code:
City, State, Zip Code
Telephone:
Alternate Telephone:
E-mail:
Fax:
Email
Rental Address
Rental Address
Residential

Fax
 Commercial
Court Case #
Court Case Filed?  No  Yes (Court Date:)
Referred By: (check appropriate boxes)
 DCBA Website
 Government/Public Entity
 County Bar Association/Attorney
 Courts
 Non-Profit Agency
 Unknown/Decline to State
 Other:
Check the following:
A
PRIMARY LANGUAGE
PARTICIPANT DESCRIPTION
 Armenian
 Russian
 Tenant
 Cambodian
 Spanish
 Landlord
 Chinese
 Tagalog
 Mobilehome Owner
 English
 Farsi
 Vietnamese
 Mobilehome Park Owner
 Decline to State
 Property Management Company
 Korean
 Attorney
 Other:
 Other:
Please summarize your request for the other party. The information on this page may be shared with
the other party in the dispute. Please type or print information legibly.
What would you like to propose, or the other party to consider?
What do you consider to be a fair and reasonable settlement of this dispute?

Payment Plan

Other:

Rent Reduction

Lease/Rental Agreement Cancellation
Describe what you consider to be fair
Please read the following statements carefully before signing below:
I certify that all the information that I have given is true, correct and complete to the best of my
knowledge. I wish to resolve this dispute through the Los Angeles County Department of Consumer
and Business Affairs.
Initials I understand that DCBA will follow the terms set forth by the Tenant Eviction Moratorium guidelines
______ and adhere to the terms of the Eviction Moratorium when attempting to resolve a dispute.
Initials
I understand that neither I nor the other party are required to enter into an agreement, resolving the
Initials
______
dispute, and that, under the Tenant Eviction Moratorium, residential tenants or commercial tenants
with 9 or fewer employees have up to twelve (12) months following the end of the moratorium period
to pay back any unpaid rent. Commercial tenants with 10 or more but less than 100 employees have
up to six (6) months following the end of the moratorium period to pay back any unpaid rent.
Initials
______ I understand that this process is not confidential and may be disclosed subsequently.
Signature: Signature
Signature of party requesting rent resolution
Date:
Date
EXHIBIT 6