Hovsepian v. Apple, Inc.

Filing 1501

Hovsepian v. Apple, Inc.

Doc. 1501

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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: [phone] Facsimile: [phone]

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E-mail: mcoffno(êsteefe1.com;dvanalek(êsteefe1.com

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Attorneys for Defendants AMERICAN GREETINGS CORPORATION and EGREETINGS NETWORK, INe.
UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRACISCO DIVISION
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BLICKMAN TURUS, L.P., dba BT COMMERCIAL REAL ESTATE, a
California limited partnership,

CASE NO. C 05-1091 MJJ

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DECLARTION OF COLLEEN
WILLIAMS IN SUPPORT OF DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Date: September 13, 2005

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Plaintiff,
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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

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I, Colleen Wiliams, declare as follows:
1.
Durng the period February 2002 and August 2004, on behalf of

Egreetings
property located at 149 New

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Network, Inc., I had varous responsibilities regarding the leasing of

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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

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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

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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:ó4ó23I ó.1

Dockets.Justia.com

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regarding leasing and subleasing issues that arose in connection with property located at 149 New

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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

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13, 1999, Egreetings Network, Inc. ("EGN"), as Tenant,

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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

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1988, as Landlord, entered into a 10-year commercial

the

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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.

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In October 1999 and March 2000, the Landlord and EGN amended the

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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.

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On or about March 19,2001, EGN and Blickman Turkus, which is also

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known as BT Commercial Real Estate Services, the Plaintiff in this action, entered into an

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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

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the Subleasing Agreement.
5.
In October 2001, the paries entered into an Extension of

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the Exclusive

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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.

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On or about April 18, 2002, EGN and Plaintiff signed a second Extension

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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

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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
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Declaration of

Wiliams In Support Of

MJJ)
19030:ó4ó231 Ó. i

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Extension of the Subleasing Agreement ("Final Extension"), which changed the expiration date to

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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

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presented and EGN accepted a sublease proposal

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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

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the Wright Construction Sublease.
presented to me

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9.

On or about July 31,2003 and August 7, 2003, Plaintiff

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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

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proposed subtenant Woodberry Events. Attached to this declaration as Exhibits I and J,
these sublease proposals.

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respectively, are true and correct copies of

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10.

In late August 2003, I asked Plaintiff

to temporarily suspend marketing

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efforts for the leased premises.
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At no time did I ever receive an abandonment notice regarding the Master

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Lease and leased premises from the Landlord.
12.
At no time did I receive a written acceptance of any surrender of

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the leased

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premises from the Landlord.
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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.

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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

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$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

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Defendants' Motion For Partial Summary Judgment (No.C 05-1091
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MJJ)
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I detlare under penalty of perjur under the laws of

the state of California and

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under the laws ofthe United States of America that the foregoing is true and eOlTect and that I

executed thís declaration this K day of August 2005, in Cleveland, Ohio.

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BYl~n Willams ~-¿"Co lee

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Declaratíon ofWiliams Tn Support OfDefeiidams' Motion For Partial Summary Judgment (No.C 05.( 091

MJ,
i 9030:646 i 793.4

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