200 Kansas Owner v. Keenwawa CA1/3

Filed 9/28/23 200 Kansas Owner v. Keenwawa CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

200 KANSAS OWNER, LLC, Plaintiff and Respondent, A166470 v. KEENWAWA, INC. (San Francisco City & County Defendant and Appellant. Super. Ct. No. CPF-22-517812)

Keenwawa, Inc., doing business as Brightloom (tenant) appeals from a judgment confirming a final arbitration award in favor of 200 Kansas Owner, LLC (landlord). We affirm.1 BACKGROUND In June 2015, tenant leased space in landlord’s office building on Kansas Street in San Francisco. Section 29.20.2 of the lease — entitled “waiver of trial by jury” — stated the parties waived their right to a jury trial

1 We deny tenant’s request for judicial notice of, among other things,

the JAMS Comprehensive Arbitration Rules & Procedures, as these documents are unnecessary to our decision. (Najarro v. Superior Court (2021) 70 Cal.App.5th 871, 885, fn. 7.) In violation of California Rules of Court, rule 8.124(b), tenant’s appellant’s appendix omits numerous essential documents, including landlord’s arbitration demand and declarations landlord offered in support of its petition to confirm the award. Landlord has provided a respondent’s appendix supplying the missing documents. We recite only those facts necessary to resolve the dispositive issues. 1

in any litigation arising out of, or connected to, the lease. (Capitalization omitted.) Section 29.20.2 also provided that if the jury waiver is not enforceable, “the following provisions shall apply. . . . [A]ny action, proceeding or counterclaim brought by either party hereto against the other . . . on any matters arising out of or in any way connected with this Lease, Tenant’s use or occupancy of the Premises and/or any claim of injury or damage . . . shall be heard and resolved by a referee under the provisions of the California Code of Civil Procedure, Sections 638 – 645.1[.]”2 (Capitalization omitted.) Additionally, the provision stated that pursuant to section 644, “[a]ny decision of the referee and/or judgment or other order entered thereon shall be appealable to the same extent and in the same manner that such decision, judgment, or order would be appealable if rendered by a judge of the superior court in which venue is proper.” Tenant stopped paying rent in April 2020. Not long after, it decided to “go ‘permanent remote,’ ” and it paid rent intermittently or not at all. In late December, the parties entered into a “Surrender and Lease Termination Agreement” (agreement). Under the agreement, tenant vacated the space; the parties terminated the lease, and they acknowledged the existence of a dispute over tenant’s nonpayment of rent and landlord’s entitlement to damages (rent dispute). The parties also agreed the rent dispute would “be resolved in accordance with the alternative dispute resolution mechanism set forth in Section 29.20.2 of the Lease, as clarified and amended by the terms and conditions” of the agreement. Section 7 of the agreement — entitled “Agreement to Alternative Dispute Resolution” — provided that “[n]otwithstanding anything in the Lease to the contrary, the Parties