Hovsepian v. Apple, Inc.

Filing 1501

Download PDF
Hovsepian v. Apple, Inc. Doc. 1501 1 2 3 MICHAEL J. COFFINO (State Bar No. 88109) DAVID T. V ANALEK (State Bar No. 197810) STEEFEL, LEVITT & WEISS A Professional Corporation One Embarcadero Center, 30th Floor San Francisco, CA 94111-3719 Telephone: (415) 788-0900 Facsimile: (415) 788-2019 4 5 E-mail: mcoffno(steefe1.com;dvanalek(steefe1.com 6 7 "" Attorneys for Defendants AMERICAN GREETINGS CORPORATION and EGREETINGS NETWORK, INe. UNITED STATES DISTRICT COURT 8 . ". '? u-"" 0"' u~ '" ' Cf - 00 C. uz~ . f g: rTi .. Ll .. ~.. ,; z ': ~.. ~ ~ ,5 .. .. .. .. "" .. 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRACISCO DIVISION 11 12 13 BLICKMAN TURUS, L.P., dba BT COMMERCIAL REAL ESTATE, a California limited partnership, CASE NO. C 05-1091 MJJ ~ Q~~ DECLARTION OF COLLEEN WILLIAMS IN SUPPORT OF DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT Date: September 13, 2005 r-~2'~ -: r o" ;: ~,. . ~ z~a .. i. a co ~ 80~ 14 15 Plaintiff, v. i- ~ cr .. 0", 00 i ~:: ; rTl~~~ .. ~ . tii . ~ 16 17 18 rTi E- .. ~ .. ..EU .. z~ Cf 01 o Q) '- . i: r- U '" ~ '" "" . EGREETINGS NETWORK, INC., aka Egreetings, a Delaware corporation, and AMERICAN GREETINGS CORPORATION, an Ohio corporation, Defendants. Time: 9:30 a.m. Location: Courtroom 11, 19th Floor Judge: Hon. Martin J. Jenkins ~ .o . r :; 19 o . . Z 20 21 I, Colleen Wiliams, declare as follows: 1. Durng the period February 2002 and August 2004, on behalf of Egreetings property located at 149 New 22 Network, Inc., I had varous responsibilities regarding the leasing of 23 Montgomery, San Francisco, California for Egreetings Network, Inc., a defendant in this action. These included the master lease, agreements for subletting the leased premises at 149 New 24 25 Montgomery, and agreements with brokers to sublet the property. As such, I am familiar with the various documents that the parties signed in connection with the lease of the property located at 26 27 28 149 New Montgomery. In addition, I was responsible for the day-to-day communications Declaration of Wiliams In Support Of Defendants' Motion For Partial Summary Judgment (No.C 05-1091 MJJ) 19030:423I .1 Dockets.Justia.com 1 regarding leasing and subleasing issues that arose in connection with property located at 149 New 2 3 Montgomery, including sublease proposals and agreements. As a result, the facts set forth in this declaration are based upon my personal knowledge, and if called upon to testify as to the truth of those facts, I could and would competently do so. 2. On or about April 4 5 13, 1999, Egreetings Network, Inc. ("EGN"), as Tenant, 6 7 "" and Jonathan Parker, Thomas M. Monahan, Harold Parker Properties, L.P., and Harold A. Parker, Trustee, and Gertrud V. Parker, Trustee, of the Harold A. Parker Company Trust dated May 11, lease concerning certain portions of 8 1988, as Landlord, entered into a 10-year commercial the .. " '? .. .. .. .. "" .. u-"" 0"' 9 10 11 offce building located at 149 New Montgomery Street in San Francisco, California ("Master Lease"). Attached to this declaration as Exhibit A is a tre and correct copy ofthe Master Lease. 3. u~ '" ' Cf - 00 In October 1999 and March 2000, the Landlord and EGN amended the C. uz~ . f g: rTi ~.. .. ~ Ll 12 13 Master Lease to add more space to the leased premises. Attached to this declaration as Exhibits B and C, respectively, are true and correct copies of those amendments to the Master Lease. 4. ~ S!~c. ~ Z Z '" ~.. ~ ~.5 r-~~ .. 80~ ;: ~,. . ~ z~a i-.. ~~q i. 0 00 r- '" 0 '" 14 15 On or about March 19,2001, EGN and Blickman Turkus, which is also i S!:: ; known as BT Commercial Real Estate Services, the Plaintiff in this action, entered into an i-~.r: ~ ~~~ i 0", 00 ii . ~ '- . i: r- U '" ~ E-.. ~ z,, 16 17 18 Exclusive Subleasing Agreement ("Subleasing Agreement"). The Subleasing Agreement had an original expiration date of October 1, 2001. Attached to this declaration as Exhibit D is a true and correct copy of Cf 0.. ~ p. U . '" oE~ 1 ~ ~ ro :; the Subleasing Agreement. 5. In October 2001, the paries entered into an Extension of 19 the Exclusive . . z o 20 21 Subleasing Agreement, which changed the expiration date of the Subleasing Agreement to March 31, 2002 ("First Extension"). Attached to this declaration as Exhibit E is a true and correct copy of the First Extension of the Subleasing Agreement. 6. 22 23 On or about April 18, 2002, EGN and Plaintiff signed a second Extension 24 25 of the Subleasing Agreement, which moved the expiration date to December 31, 2002 ("Second Extension"). The parties also amended paragraph 6 regarding commissions and the Schedule of Sublease Commissions. Attached to this declaration as Exhibit F is a true and correct copy of 26 27 28 the Second Extension of the Subleasing Agreement. 7. Near the end of December 2002, EGN and Plaintiff signed a final Defendants' Motion For Partial Summy Judgment (No.C 05-1091 2 Declaration of Wiliams In Support Of MJJ) 19030:4231 . i 1 Extension of the Subleasing Agreement ("Final Extension"), which changed the expiration date to 2 3 September 30,2003. The Final Extension also amended paragraph 6 regarding commissions and the Schedule of Sublease Commissions. Attached to this declaration as Exhibit G is a true and correct copy of the Final Extension of the Subleasing Agreement. 8. In March 2003, Plaintiff 4 5 presented and EGN accepted a sublease proposal 6 7 "" for Howard S. Wright Construction Company ("Wright Construction Sublease"). Thereafter, EGN never entered into another sublease agreement with a subtenant at the property. Attached to this declaration as Exhibit H is a true and correct copy of 8 the Wright Construction Sublease. presented to me .. " '? .. .. .. .. "" 9 10 11 9. On or about July 31,2003 and August 7, 2003, Plaintiff u, "" 0"' u~ '" ' Cf - 00 rTi ~ Ll .. ~.. ~ sublease proposals from two cooperating brokers: one from Transwestern Commercial Services on behalf of the proposed subtenant Godfrey Q & Partners and one from MSB Parters on behalf of C. uz~ . f g: 12 13 proposed subtenant Woodberry Events. Attached to this declaration as Exhibits I and J, these sublease proposals. ~ O~c. ~.. ~ Z Z '" r-~2'~ -: r o" ~ 80~ ;: ~,. . ~ z~a . i ~:: ; respectively, are true and correct copies of ~ ~.5 14 15 10. In late August 2003, I asked Plaintiff to temporarily suspend marketing i- ~E-q .. i. 000 efforts for the leased premises. 11. ..~C:l2 ~ ~~~ ii . ~ rTi . .. 16 17 18 At no time did I ever receive an abandonment notice regarding the Master ~ .. ~ ~ ro :; .. z~ Cf 01 o Q) '- . i: r- U '" Lease and leased premises from the Landlord. 12. At no time did I receive a written acceptance of any surrender of ~ '" p. . ~. U the leased 19 premises from the Landlord. 13. . . Z o 20 21 At no time prior to December 29,2003 did I become aware ofthe Landlord's taking any action to take away or limit EGN's exclusive possession of the premises. 22 23 14. On or about September 14, 2004, and again on October 22,2004, Plaintiff sent a letter and invoice concerning a purported unpaid commission in the amount of 24 25 $127,209.78. Attached to this declaration as Exhibits K and L, respectively, are true and correct copies of the letter and invoice. II II II Declaration of Wiliams In Support Of 26 27 28 Defendants' Motion For Partial Summary Judgment (No.C 05-1091 3 MJJ) 19030:4231 .1 1 I detlare under penalty of perjur under the laws of the state of California and 2 3 under the laws ofthe United States of America that the foregoing is true and eOlTect and that I executed ths declaration this K day of August 2005, in Cleveland, Ohio. 4 5 ,- 6 BYl~n Willams ~-"Co lee 7 8 2 i,: '7 r. ,' .. .. "" -o u 0- 9 10 11 ~ .. ~I; i: "'u "" 00 - g~ 12 13 ;s "Z"" i. .. .~n ~ 11 f- :i . 'ii l- Boff E- ~ r::; 14 15 16 17 18 19 i--h :x ! ~ i-. ;; ;~i,Iw .8 :. i .J,:R~ i: i- ~ rr '" in ~ ~I"~ p:;2,: ~ntJ ~ e o1! ~ -1' ii Q. ii.II ! Q ..r" ~ II 0 Z 20 21 22 23 24 25 26 27 28 Declaraton ofWiliams Tn Support OfDefeiidams' Motion For Partial Summary Judgment (No.C 05.( 091 MJ, i 9030:646 i 793.4 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?