Judge: Kenneth J. Medel, Case: 37-2022-00022866-CU-OR-CTL, Date: 2023-09-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 31, 2023

09/01/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Other Real Property Discovery Hearing 37-2022-00022866-CU-OR-CTL THE BIBBEY REVOCABLE FAMILY TRUST VS VERIZON WIRELESS VAW LLC CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 03/22/2023

Special Interrogatories: No. 19 and No. 20. The Special Interrogatories at issue seek information regarding what Verizon was paying other cell tower lessor's in the area.

Plaintiff contends that the information is relevant to the measure of damages. This matter arises out of and relates to Verizon's ongoing and wrongful occupation of Plaintiff's real property and previous breaches of the Lease Agreement between the parties. Per California Civil Code Section 3334: 'The detriment caused by the wrongful occupation of real property... is deemed to include the 'value of the use' of the property for the time of that wrongful occupation.' The 'value of the use' of the property is the 'greater of the reasonable rental value of that property or the benefits obtained by the person wrongfully occupying the property by reason of that wrongful occupation.

Plaintiff seeks the value of other leases in the area to determine the reasonable rental value.

Verizon first argues that the other leases are irrelevant because the parties negotiated the amount of the rent in the 'hold over' clause in the lease. A holdover rent clause applies when the lease term ends, and the tenant stays after that date and refuses to pay the addition rent. By its terms. the clause applies when the lessee 'holds over' in violation of Paragraph 13. Verizon is not a hold over tenant. In this case, Plaintiff terminated the lease for alleged non-payment of rent. It is not a situation where Verizon held over after the lease had expired on its term. The holdover provision explicitly and only applies after the lease term ends as stated in paragraph 14 of the Lease. If the termination was proper this would not be a holdover situation but a wrongly occupancy after a valid termination.

Verizon also argues that the information, even if relevant, involves trade secret information that should be protected from disclosure, particularly to plaintiff's expert. According to Verizon, Verizon carefully guards such information is because its widespread disclosure could result in serious and potentially irreparable competitive harm to Verizon, including through landlords demanding additional rent on learning that neighboring landlords – whether similarly situated or not – get paid more. (Kimpang Decl., ¶ 14.) Despite Verizon's efforts at nondisclosure, such landlord demands are not uncommon (landlords talk), and when they occur, it often results in substantial burden and expense to the company in the form of staff, in-house counsel, and outside counsel time and fees to address the demands, which are often accompanied by threats of eviction and litigation. (Id.) No aggregations of the confidential lease information demanded by Landlord exist anywhere outside of Verizon. (Id. at ¶ 15.) If such an aggregation was publicly disseminated or fell into the wrong hands, it could result in enormous and irreparable harm to Verizon, the likes of which could cost millions of dollars and many years of time to recover from. (Id.) The risk of harm is especially acute here given Landlord's known retention of a telecom consultant, Nick Foster of Airwave Advisors, in regard to the Premises and the lawsuit.

However, even if the information is commercially sensitive, the Court finds that the need for the discovery outweighs Verizon's interests, particularly when there is a protective order in place. Plaintiff agreed to and signed the protective order and plaintiff's expert is also agreeing to be bound by its terms.

Calendar No.: Event ID:  TENTATIVE RULINGS

2953655  42 CASE NUMBER: CASE TITLE:  THE BIBBEY REVOCABLE FAMILY TRUST VS VERIZON WIRELESS  37-2022-00022866-CU-OR-CTL The protective order provides for sanctions upon any violation of its terms.

Sanctions The Court finds that sanctions are required pursuant to CCP § 2023.010 et seq., and CCP § 2030.300, et seq. Verizon has not provided substantial justification for its failure to respond to the interrogatories, particularly after the parties negotiated the protective order. The Court will hear as to the amount of sanctions to be awarded.

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2953655  42