250 L.L.C. v. Photopoint Corp.
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Filed 8/29/05 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR 250 L.L.C., A105231 Plaintiff and Appellant, v. (San Francisco County Super. Ct. No. 324137) PHOTOPOINT CORP. (USA), Defendant, SHERWOOD PARTNERS, INC., Intervener and Appellant. SHERWOOD PARTNERS, INC., (San Francisco County Super. Ct. No. 401396) Plaintiff and Appellant, v. ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] 250 L.L.C., Defendant and Appellant. THE COURT: It is ordered that the opinion filed herein on July 28, 2005, be modified as follows: 1. After the last full paragraph on page 14, a new paragraph, including a new footnote, which will require renumbering of all subsequent footnotes is added. The new text reads as follows: In view of our holding that tenants can agree to waive section 1950.7, there is no substance to the suggestion in 250 s petition for rehearing that our decision will hurt start up companies. 6 250 reasons that landlords will be less likely to rent to new businesses without the protection large security deposits can provide against defaults in the payment of rent, and apparently presumes that our decision will 1 preclude that protection. However, parties can plan around section 1950.7 should they desire to do so. The question is whether that planning occurred here. _________________ 6 Other arguments in the petition for rehearing are either improperly advanced for the first time in the petition (Gentis v. Safeguard Business Systems, Inc. (1998) 60 Cal.App.4th 1294, 1308) or adequately addressed in the discussion. The principal new argument is that section 1950.7 is preempted by the current Bankruptcy Code. While we need not and do not reach this belated contention, we note that the petition does not identify precisely how much of the field of tenant security deposit law Congress has allegedly intended to occupy, and that the argument rests on the unsupported assumption that section 1950.7 would not be applied in a bankruptcy a proposition no reported case has considered, and at least one commentary has rejected (St. James, supra, 26 Cal. Bankr. J. at pp. 50-51). 2. The first full paragraph on page 22 is modified to read as follows: Accordingly, there was no waiver of section 1950.7 in the lease. Indeed, the parties agreed to an extension of the time specified in the statute within which the security deposit had to be returned. There is no change in the judgment. The petition for rehearing is denied. DATED: ___________________ ______________________ Kay, P.J. 2 Trial Court: San Francisco County Superior Court Trial Judge: Honorable Perker Meeks Counsel for Plaintiff and Appellant and for Defendant and Appellant 250 L.L.C.: Law Offices of Janet Brayer Janet Brayer Counsel for Intervener and Appellant and Plaintiff and Appellant Sherwood Partners, Inc.: Sulmeyer Kupetz Dean G. Rallis Jr. Diane C. Stanfield 3
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