Hrg 2/7/19 Motion For Judgment On The PleadingsMotionCal. Super. - 6th Dist.December 14, 2016A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOSSAMAN LLP BRENDAN F. MACAULAY (SBN 162313) bmacaulay@nossaman.com 50 California Street, 34th Floor San Francisco, CA 94111 Telephone: 415.398.3600 Facsimile: 415.398.2438 Attorneys for Cross-Defendants COCO’S RESTAURANTS, LLC, CATALINA RESTAURANT GROUP INC. and Cross- Complainant FOOD MANAGEMENT PARTNERS SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA LEGACY GOLDEN STATE, LLC, Case No: 16-CV-303987 Plaintiff, Assigned for all purposes to: Sunil R. Kulkarni Vs. CROSS-DEFENDANTS COCO’S COCO’S RESTAURANTS, INC., a California RESTAURANTS, LLC AND CATALINA corporation; FOOD MANAGEMENT RESTAURANT GROUP INC. NOTICE PARTNERS,a Texas corporation; MIZU OF MOTION AND MOTION FOR SUSHI BAR & GRILL, INC., a California JUDGMENT ON THE PLEADINGS corporation, and DOES 1 through 15, [C.C.P. 438]; DECLARATION OF BRENDAN F. MACAULAY IN SUPPORT Defendants. THEREOF Date: February 7, 2019 Time: 9:00 a.m. Dept.: 8 Date Action Filed: December 14, 2016 Trial Date: February 11, 2019 AND RELATED CROSS-ACTIONS. CROSS-DEFENDANTS’ MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS [C.C.P. 438]56701656.v4 A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO LEGACY GOLDEN STATE, LLC AND TO ITS ATTORNEY OF RECORD: PLEASE TAKE NOTICEthat on February 7, 2019 at 9:00 a.m., or as soon thereafter as the matter can be heard in Department 9 of the above-named court, located at 191 N. First Street, San Jose, California 95113, Cross-Defendants Coco’s Restaurants, LLC ("Coco's”) and Catalina Restaurant Group Inc. (collectively “Cross-Defendants”) will move and do move for judgment on the pleadings pursuant Code of Civil Procedure § 438(c)(1) and (3) as to each cause of action in the Cross-Complaint of Mizu Sushi Bar & Grill, Inc. (“Mizu”). Cross-Defendants hereby request judgment on the pleadings as follows: 1. As to the First Cause of Action For Breach of Contract, the claim fails under C.C.P. §438(c)(1)(B)(i1) because there is no obligation under the Assignment for Coco's to obtain the Landlord’s consentto the assignment (the only claimed breach of contract). 2. As to the Second Cause of Action For Negligent Misrepresentation, the claim fails under C.C.P. §438 (c)(1)(B)(i1) because the only claimed misrepresentation is that Coco's misrepresented that it had performed a contractual obligation to obtain the landlord’s consent to the assignment. One cannot sue in tort for failing to perform a contractual obligation. 3. As to the Third Cause of Action for Unjust Enrichment / Restitution, the claim fails under C.C.P. §438 (c)(1)(B)(i1) because there is no cause of action in California for Unjust Enrichment or Restitution. The motion will be based upon this notice, the Motion for Judgment on the Pleadings, the Memorandum of Points and Authorities in Support Thereof, the Declaration of Brendan F. Macaulay in support of the motion, the Request for Judicial Notice, the records on file with the court in this action, and upon such additional information and evidence as the court deems necessary. Dated: December 5, 2018 NOSSAMAN LLP By: /s/ Brendan F. Macaulay Brendan F. Macaulay Attorneys for Cross-Defendants COCO’S RESTAURANTS, LLC, CATALINA RESTAURANT GROUP INC. and Cross- Complainant FOOD MANAGEMENT PARTNERS 2. CROSS-DEFENDANTS’ MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS [C.C.P. 438]56701656.v4 A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Mizu Sushi Bar & Grill, Inc. (“Mizu”) alleges three causes of action against Cross- Defendants Coco's, which fail for the reasons described: I. Mizu’s breach of contract claim fails because it is premised on a duty (to obtain the landlord’s consent) that does not exist in the contract (the assignment). The lack of such a duty is readily ascertainable form the contract attached to the Cross-Complaint. 2. Mizu’s negligent misrepresentation claim fails because it improperly creates tort duties for an alleged contractual duty. Mizu claims that Cross-Defendants negligently misrepresented that they had performed a contractual duty (to obtain landlord’s consent). California law does not permit a tort claim in that circumstance. 3. Mizu’s restitution/unjust enrichment “claim”fails because it is not a recognized cause of action in California. Mizu’s claimsfail to establish viable causes of action as a matter of law. Because the parties’ efforts to meet and confer did not resolve the issue, Cross-Defendants request that this Court enter judgment on the pleadings in their favor. II. ARGUMENT A. Standards for Ruling on a Statutory Motion for Judgment on the Pleadings. Where the pleadings are defective, "the defect may be raised by demurrer or motion to strike, or by motion forjudgment on the pleadings." Coyne v. Krempels, (1950) 36 Cal. 2d 257, 262. C.C.P. § 438(b)(1). A motion for judgment on the pleadings presents the same question posed on a general demurrer: whether the allegations in the complaint raise an issue that can be resolved as a matter of law. Smiley v. Citibank (1995) 11 Cal.4th 138, 146. In evaluating a motion for judgment on the pleadings, the court must determine whether the complaint states a cause of action regardless of the existence oftriable issues of fact. Brownell v. Los Angeles Unified School Dist. (1992) 4 Cal.App.4th 787, 793. A motion for judgment on the pleadings may be filed, even if the moving party did not demur to the complaint or answer on the grounds alleged in the motion. C.C.P. §438(g)(2). -3- CROSS-DEFENDANTS’ MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS [C.C.P. 438]56701656.v4 A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Plaintiff’s Claim for Breach of Contract Fails as a Matter of Law. Mizu’s First Cause of Action for Breach of Contract is very simple. Mizu alleges: 32. On December 4, 2015 Coco's and Mizu entered into the Assignment under which Coco's was required to assign to Mizu “all or its right, title, obligations and interest as tenant” under the Lease Agreement. 34. Coco's breached the Assignment by failing to obtain the requisite consent from Legacy required for Coco's to assign to Mizu all of ‘Coco's right,title, obligations, and interest as tenant’ under the Lease Agreement. Complaint, 32, 34. However, these allegations do not accurately reflect the actual terms of the Assignment.! In fact, the only relevant obligation of Coco’s/Assignorin the Assignmentis: As of January 1, 2016 (the “Effective Date”), Assignor hereby assigns to Assignee all of Assignor’s right, title, obligations and interest in, to and under the Lease, subjectto all of the terms and provisions of the Lease. Request for Judicial Notice, Exhibit 1, Exh. A thereto, p. 1, {1(a). Nothing in that Assignment requires Assignor/Coco's to obtain the consent of the Landlord. And of course, the terms of a contract attached to the complaint trump any allegations about the contract. In other words, Mizu’s allegations about what the contract says have no legal moment: the contract language is all that matters. Barnett v. Fireman's Fund Ins. Co., 90 Cal.App.4th 500. 505 (2001) (“we rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”); accord George v. Automobile Club of Southern California, 201 Cal.App.4th 1112, 1130 (2011). Because the Assignment does not require Coco's to obtain the landlord’s consent, Cross-Defendants cannot be liable in contract for allegedly failing to obtain that consent. Finally, Cross-Defendants observe that the interpretation of the contract and its duties is a purely legal issue for the Court. It is not a jury question. Thus, it is appropriate for the Court to decide this question in advance oftrial, as raised in this Motion. I" I" The Assignment is considered part of the pleadings becauseit is attached to the Cross- Complaint as Exhibit A. Frantz. v. Blackwell, 189 Cal.App.3d 94, 94 (1989). -4- CROSS-DEFENDANTS’ MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS [C.C.P. 438]56701656.v4 A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Mizu’s Claim for Negligent Misrepresentation Is An Improper Attempt to Create A Tort Theory from a Claimed Breach of Contract. As indicated above, Mizu alleges that Coco's breached the contract by not getting the landlord’s consent to the assignment. Complaint, {34. However, Mizu tries to allege a tort claim based on Coco's allegedly negligent misrepresentation that Coco's had performed that contract provision by getting the landlord’s consent. Complaint, { 37 (“Coco's represented to Mizu that Coco's had obtained Legacy's consent and that Coco's and Mizu could validly enter into the Assignment.”). Essentially, Mizu alleges that Coco's negligently misrepresented thatit had performed a contractual obligation to obtain the landlord’s consent. “A person may not ordinarily recover in tort for the breach of duties that merely restate contractual obligations. Instead, courts will generally enforce the breach of a contractual promise through contract law, except when the actions that constitute the breach violate a social policy that merits the imposition of tort remedies.” (Stop Loss Ins. Brokers, Inc. v. Brown & Toland Med. Grp. (2006) 143 Cal. App. 4th 1036, 1041 (internal quotation and citation omitted).) “[CJonduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law. An omission to perform a contract obligation is nevera tort, unless that omission is also an omission of a legal duty.” (Erlich v. Menezes (1999) 21 Cal. 4th 543, 551.) Underthe rule, "[a] person may not ordinarily recover in tort for the breach of duties that merely restate contractual obligations. Instead, '[c]ourts will generally enforce the breach of a contractual promise through contract law, except when the actions that constitute the breach violate a social policy that merits the imposition of tort remedies." Aas v. Superior Court, 24 Cal. 4th 627, 643 (2000). Such violation of social policy could include a breach of an insurer’s special relationship to an insured, or intentional fraud or conversion. Id. No such special circumstances are alleged in this case, which involves a standard commercial lease. Absent the assignment, Mizu does not allege any connection, special relationship or duties between Mizu and Cross-Defendants. Simply put, one cannot alleged that “Defendant breached the contract by failing to do X” and then include a tort by claiming “Defendant negligently represented that it did X.” “In short, -5- CROSS-DEFENDANTS’ MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS [C.C.P. 438]56701656.v4 A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [t]his 1s an improper attempt to recast a breach of contract cause of action as a tort claim. Nor is there any social policy that would demand resort to tort remedies.” (Stop Loss Ins. Brokers, supra, 143 Cal. App. 4th at pp. 1041-42 (internal quotations and citations omitted).) If every negligent breach of a contract givesrise to tort damages the limitation would be meaningless, as would the statutory distinction between tort and contract remedies.” Robinson Helicopter Co., Inc. v. Dana Corp., 34 Cal. 4th 979, 990 (2004). Apart from the general concept that breach of contract cannot be a tort, California law holds that a promise made without the intent to perform cannot form the basis for a claim of negligent misrepresentation. In Tarmann v. State Farm, 2 Cal.App.4th 153 (1991), plaintiff sued an insurer for negligently or intentionally misrepresenting that it would pay for repairs to her car. Thetrial court dismissed the negligent misrepresentation claim without leave to amend. The Court of Appeal held: To maintain an action for deceit based on a false promise, one must specifically allege and prove, among other things, that the promisor did not intend to perform at the time he or she made the promise and that it was intended to deceive or induce the promisee to do or not do a particular thing. [Citations omitted]. Given this requirement, an action based on a false promise is simply a type of intentional misrepresentation, i.e., actual fraud. The specific intent requirement also precludes pleading a false promise claim as a negligent misrepresentation, i.e., 'the assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true." (Civil Code Section 1710, subd. (2).) Simply put, making a promise with an honest but unreasonable intent to perform is wholly different from making one with no intent to perform and, therefore, does not constitute a false promise. Moreover, we decline to establish a new type of actionable deceit: the negligent false promise. In light of our discussion, the trial court properly sustained the demurrer to [Plaintiff’s] cause of action for negligent misrepresentation. Id., at 159. Following Tarmann, the Court in Stockton Mortgage, Inc. v. Tope, 233 Cal. App. 4th 437 (2014) rejected a ploy similar to that attempted by Mizu here. The plaintiff sued a title company for breaching a contract to obtain a release of a certain title defect. The plaintiff also sued the title company for negligently misrepresenting that it would obtain that release. The Court of Appeal upheld the dismissal of the negligent misrepresentation claim, holding, “[a]lthough a false promise to perform in the future can support an intentional misrepresentation claim, it does not support a claim for negligent misrepresentation.” Id., at 458. -6- CROSS-DEFENDANTS’ MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS [C.C.P. 438]56701656.v4 A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mizu cannot sue Cross-Defendants for allegedly negligently misrepresenting that the landlord’s consentto the Assignment had been obtained. That conduct cannot be both a breach of contract and a tort. If the contract required Coco's to obtain the landlord’s consent, no negligent misrepresentation claim can exist. If the contract did not require it, then no breach of contract can exist. D. Plaintiff’s Claim for Unjust Enrichment Fails as a Matter of Law Because There Is No Allegation of Unfair Benefit to Defendant. Mizu’s cross-complaint contains a cause of action called “Unjust Enrichment/ Restitution.” This claim is not a stand-alone cause of action in California. As the Court explained in Levine v. Blue Shield of California (2011) 189 Cal. App. 4th 1117: Although some California courts have suggested the existence of a separate cause of action for unjust enrichment (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593, [...] [listing elements]), this court has recently held that " '[t]here is no cause of action in California for unjust enrichment." [Citations.] Unjust enrichment is synonymous with restitution. [Citation.]" (Durell, supra, 183 Cal.App.4th at p. 1370 [...]) Thus, the Levines' unjust enrichment claim does not properly state a cause of action. Id. at 1138. Similarly, in Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, the Court reiterated: “[T]here is no cause of action in California for unjust enrichment.” (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779,793 [...]; see McKell v. Washington Mutual, Inc., supra, 142 Cal.App.4th 1457, 1490.) Unjust enrichment is synonymous with restitution. (Dinosaur Development, Inc. v. White (1989) 216 Cal.App.3d 1310, 1314 [...].) Id. at 1370. See also, McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th 1457, 1490 (“there is no cause of action for unjust enrichment. Rather, unjust enrichment is a basis for obtaining restitution based on quasi-contract or imposition of a constructive trust.”). Moreover, “[t]here is no freestanding cause of action for ‘restitution’ in California,” as held in Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 661, citing, Melchior v. New Line _7- CROSS-DEFENDANTS’ MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS [C.C.P. 438]56701656.v4 A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Productions, Inc. (2003) 106 Cal.App.4th 779, 793.2 In any event, whether styled as a claim for unjust enrichment and/or restitution, such quasi-contract claims cannot exist alongside a claim for breach of contract where, as here, Mizu has pled the existence of a valid contract that Mizu is trying to enforce. See, e.g., Klein v. Chevron U.S.A. Inc., 202 Cal. App. 4th 1342, 1388 (2012). Mizu’s “Unjust Enrichment / Restitution” claim must be dismissed. III. CONCLUSION For the foregoing reasons, Cross-Defendants request that this Court grant its motion for judgment on the pleadings and dismiss each of the causes of action in Mizu’s Cross-Complaint. Dated: December 5, 2018 NOSSAMAN LLP By: /s/ Brendan F. Macaulay Brendan F. Macaulay Attorneys for Cross-Defendants COCO’S RESTAURANTS, LLC, CATALINA RESTAURANT GROUP INC. and Cross- Complainant FOOD MANAGEMENT PARTNERS 2 Cross-Complainants’ counsel met and conferred with Mizu’s counsel before filing this Motion on all issues. Macaulay Decl., {{ 3-6. As relates to restitution/unjust enrichment, Cross- Complainants provided authority that those are not causes of action, but Mizu claimed there is a split of authority in California on this issue. But the two cases Mizu relied upon actually support the notion that unjust enrichment is merely a remedy, and not a cause of action. See Dunkin v. Boskey (2000) 82 Cal.App.4th 171, 195-198 and Hernandez v. Lopez (2009) 180 Cal.App.4th 932, 938-939. Cross-Complainants will address these cases in greater detail in Reply if Mizu continues to rely on them. -8- CROSS-DEFENDANTS’ MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS [C.C.P. 438] 56701656.v4 A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF BRENDAN F. MACAULAY I. I am an attorney at law licensed to practice and admitted to appear before all courts in the state of California. I am a partner with Nossaman, LLP, counsel of record for Cross-Complainants Coco’s Restaurants, LLC (Coco's) and Catalina Restaurant Group Inc. (collectively “Cross-Complainants”). I have personal knowledge of the following facts and, if called and sworn as a witness, could and would testify competently thereto. 2. Attached hereto as Exhibit A is a true and correct copy of the Cross-Complaint filed Mizu Sushi Bar & Grill, Inc. (“Mizu”). This Cross-Complaint is attached for the Court’s ease of reference. I reviewed the allegations of the complaint and determined that the claims were defective. I therefore determined to prepare a motion for judgment on the pleadings. 3. In accordance with California Code of Civil Procedure §439(a), I spoke with Mizu attorney, Michael Cheng, by telephone on November 8, 2018. I shared with him my concerns about the deficiencies in the Cross-Complaint as relates to the unjust enrichment and breach of contract claims. On August 1 and 2, 2018, Mr. Cheng and I met and conferred with each other about the unjust enrichment / restitution claim. Those emails included legal authorities. 4, After our call, I wrote to Mr. Cheng on November 8, 2018 about that telephonic meet and confer effort, as well as other topics unrelated to this Motion. The next day, November 9, 2018, I again wrote to Mr. Cheng about Mizu’s Negligent Misrepresentation Claim: This email is to supplement the meet and confer we have had about our contemplated motion for judgment on the pleadings. When I asked how Coco's breached the assignment, you said that Coco's failed to get the consent of the landlord. Thatis consistent with Mizu’s allegation in the Cross-Complaint at Para. 34 that “Coco's breached the Assignment by failing to obtain the requisite consent from Legacy required for Coco's to assign to Mizu all of ‘Coco's right, title, obligations, and interest as tenant” under the Lease Agreement.” However, Mizu has also included a tort claim for negligent misrepresentation because, as alleged in Para. 37, “Coco's represented to Mizu that Coco's had obtained Legacy's consent and that Coco's and Mizu could validly enter into the Assignment.” Essentially, Mizu alleges that Coco's negligently misrepresented that it performed a contractual obligation to obtain the landlord’s consent. Respectfully, this cause of action is impermissibly trying to create a tort out of a breach of contract. Stop Loss Ins. Brokers, Inc. v. Brown & Toland Med. Grp. (2006) 143 Cal. App. 4th 1036, 1041 (“A person may not ordinarily recover in tort for the breach of duties that merely restate contractual obligations. Instead, 9. CROSS-DEFENDANTS’ MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS [C.C.P. 438]56701656.v4 A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 courts will generally enforce the breach of a contractual promise through contract law, except when the actions that constitute the breach violate a social policy that merits the imposition of tort remedies.”). Accordingly, we ask that Mizu dismiss its negligent misrepresentation claim. Please let me know if you will do so by noon on November 13, 2018. Attached hereto as Exhibit B is a copy of my November 8 and 9 emails with Mizu’s counsel. Mr. Cheng never responded. 5. On November15, 2018, I again called Mr. Cheng to meet and confer about a possible motion for judgment on the pleadings. He had not read the authorities I provided on November 9. I therefore sent him the following email, which included links to the Stop Loss case, as well as other legal authority. I wrote: Confirming our call just now, I request that you consider the email below to determine if you will change your mind relating to the dismissal of the negligent misrepresentation claim. To assist you in that analysis, here is a link to the case I cited, Stop Loss Ins. Brokers, Inc. v. Brown & Toland Med. Grp. (2006) 143 Cal. App. 4th 1036, 1041. I would also invite you to read Tarmann v. State Farm, 2 Cal.App.4th 153 (1991), also linked. Ilook forward to continuing this discussion tomorrow at 11:00 a.m. My November 15 email is included as part of Exhibit B. 6. On November 26, 2018, I again met and conferred with Mr. Cheng. He had since read the authorities and the emails I sent regarding Mizu’s causes of action. I explained our position, and he explained Mizu’s. Ultimately, however, he did not agree to dismiss any cause of action. This motion became necessary. I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct. Executed this on December 5, 2018 at San Francisco, California. /s/ Brendan F. Macaulay Brendan F. Macaulay -10 - CROSS-DEFENDANTS’ MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS [C.C.P. 438]56701656.v4 EXHIBIT A 838-3891-3088v1 {CHENG\20930003 O O 0 N N N N n n A W N = N N N N N N N N N = e e e m e m e m e e e m e e e e C 0 N N O N L L A W N = O D O N N Y N R W N D = O .- - CHRISTIAN E. PICONE, CA STATE BAR NO. 218275 MICHAEL J. CHENG, CA STATE BAR No. 244414 BERLINER COHEN, LLP TEN ALMADEN BOULEVARD ELEVENTH FLOOR SAN JOSE, CALIFORNIA 95113-2233 TELEPHONE: (408) 286-5800 FACSIMILE: (408) 998-5388 christian.picone@berliner.com michael.cheng@berliner.com ATTORNEYS FOR DEFENDANTAND CROSS- COMPLAINANT MIZU SUSHI BAR& GRILL, INC. Fm mee NTT SY ETN, ' Lorie ve, 07 f3-8 P 302 CQ - Ta Vrog vow % SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA LEGACY GOLDEN STATE, LLC, CASE NO. 16-CV-303987 Plaintiff, MIZU SUSHI BAR & GRILL, INC.’S Vv. COCO’S RESTAURANTS, INC, A CALIFORNIA CORPORATION; FOOD MANAGEMENT PARTNERS, A TEXAS CORPORATION; MIZU SUSHI BAR & GRILL, INC., A CALIFORNIA CORPORATION, AND DOES1-15, Defendants. MIZU SUSHI BAR & GRILL, INC., A CALIFORNIA CORPORATION, Cross-Complainant, v. COCO’S RESTAURANTS, INC, A CALIFORNIA CORPORATION; CATALINA RESTAURANT GROUP INC,, A DELAWARE CORPORATION; FOOD MANAGEMENT PARTNERS, A TEXAS CORPORATION, AND ROES1-10, Cross-Defendants. -1- CROSS-COMPLAINT FOR: 1. Breach of Contract 2. Negligent Misrepresentation 3. Unjust Enrichment / Restitution MIZU SUSHI BAR & GRILL, INC.’S CROSS-COMPLAINT 838-3891-3088v1 1CHENG\20930003 O O 0 N N O N w n A W D N N N N N N N N N = m m e m e m e t e e p m b m 0 J O N W n b h W N = O 0 N N S N B R A W N = O Defendant and Cross-Complainant MIZU SUSHI BAR & GRILL, INC. (“Mizu”) alleges as follows: 1. Mizu is a California corporation that operates numerous restaurants throughout Northern and Southern California. 2. Plaintiff is informed and believes and thereon alleges that Defendant and Cross- Defendant COCO’S RESTAURNTS, INC. (“Coco’s”) is a California corporation. 3. Plaintiff is informed and believes and thereon alleges that Cross-Defendant CATALINA RESTAURANT GROUP INC. (“Catalina”) is a Delaware corporation and the parent company of Coco’s. 4. Plaintiff is informed and believes and thereon alleges that Defendant and Cross- Defendant FOOD MANAGEMENT PARTNERS, INC. (“FMP”) is a Texas corporation. 5. Plaintiff is informed and believes and thereon alleges that Cross-Defendants are each alter-egos of one another, that Cross-Defendants were each acting as the employee, agent, principal, officer, partner, joint venture, director, alter-ego, or other representative of one another and, in committing the acts and/or omissions alleged herein, were acting within the scope and course of such employment, agency, partnership, joint venture, alter-ego, or other relationship, and with the knowledge and consent ofthe remaining Cross-Defendants. 6. The true names and capacities, whether individual, corporate, associate or otherwise, of the Cross-Defendants named and sued herein as Roes 1 through 10, inclusive,are unknown to Mizu who therefore sues said Cross-Defendants by such fictitious names. Mizu will amend its Cross-Complaint to show their true names and capacities when the same have been ascertained. Mizu is informed and believes, and now alleges, that each of the fictitiously named Cross-Defendants is in some way responsible for the events, transactions, omissions, and occurrences referred to herein and that Mizu’s damages as herein alleged were proximately caused by those events, transactions, omissions and occurrences. 7. Venueis proper in the County of Santa Clara becauseit is where the written contract in question was entered into as well as where the acts giving rise to all other causes of action contained in this Cross-Complaint occurred. 2- MIZU SUSHI BAR & GRILL, INC.’S CROSS-COMPLAINT 838-3891-3088v1 1CHENG\20930003 O O 0 N N O N w n A W N = N N N N N N N N N O N m m e m e m e m p m e m e m e e e e 0 N N A W n R A W N = O O V O N N N R A W N - ~ O 8. The relief soughtis greater than $25,000, and thus this matter is properly designated as a case of Unlimited Jurisdiction. ALTER EGO ALLEGATIONS 9. Mizu is informed and believes and thereon alleges that there is a unity of ownership and interest by and among Coco’s, Catalina, and FMP, such that any separateness among them has never properly existed. 10. Mizu is informed and believes and thereon alleges that there exists such a unity of ownership and interest among Coco’s, Catalina, and FMP that the requisite individuality and separateness among them have ceased to exist. The business affairs of Coco’s, Catalina, and FMP are, and at all times relevant herein were, so mixed and intermingled that Coco’s, Catalina, and FMP cannot reasonably be segregated, and the same are in inextricable confusion. Coco’sis, and at all times relevant was, used by Catalina and by FMP as a mere shell and conduit for the conduct ofcertain ofaffairs. 11. The recognition of the separate existence of Coco’s, Catalina, and FMP would not promote justice in that it would permit Catalina and FMP to insulate themselves from liability. 12. Accordingly, Coco’s, Catalina, and FMP constitute the alter-egos of each other and thefiction oftheir separate existence must be disregarded. GENERAL ALLEGATIONS 13. On March 15, 1978 WRG Associates Six and Far Western Services, Inc. entered into a lease agreement which included the real property described therein as 1209 Oakmead Parkway, Sunnyvale, California 94085 (the “Property”). 14. On June 1, 2002, Western Properties Three, LLC (as successor to WRG Associates Six) and Coco’s (as successor to Far West Services, Inc.) entered into an Amendment to Lease Agreement(the “Amendment”). The aforementioned lease agreement and the Amendment are hereinafter collectively referred to as the “Lease Agreement”. 15. Plaintiff LEGACY GOLDEN STATE, LLC (“Legacy”) thereafter purchased the Property from WRG Associates Six and assumed the rights and responsibilities as successor to the Lease Agreement. -3- MIZU SUSHI BAR & GRILL, INC.’S CROSS-COMPLAINT 838-3891-3088v1 1CHENG\20930003 O O R X N N n m Bs , W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16. Mizu has desired to open a Korean barbeque restaurant in Silicon Valley and in furtherance of such desire spentits time and resources to find suitable locations. 17. In 2015 Coco’s and Mizu engaged in discussions for Coco’s to assign its rights and obligations as the tenant under the Lease Agreement to Mizu so that Mizu could openits Korean barbeque restaurant at the Property. During these discussions Coco’s made certain representations to Mizu, including a representation that Coco’s had obtained Legacy’s consent as required by the Lease Agreement for such assignment to Mizu. 18. In reliance upon Coco’s representations, Mizu ceased all other searches for suitable locations for its Korean barbeque restaurant. 19. Coco’s thereafter prepared a written Assignment and Assumption of Lease (the “Assignment”) and presented it to Mizu, who in reliance upon Coco’s representations that Coco’s had secured Legacy’s consent, signed the Assignment on December 4, 2015. A true and correct copy of the Assignment is attached hereto as Exhibit A. 20. Pursuant to the Assignment, Mizu timely paid the $350,000.00 Assignment Fee to Coco’s, which was thereafter deposited in Catalina’s bank account. 21. Mizu obtained the necessary insurance coverage as required by the Lease Agreement. 22. In or around January 2016 Mizu took possession ofthe Property. 23. Unbeknownst to Mizu at the time it took possession of the Property, Coco’s failed to obtain consent from Legacy or provide Legacy with a copy of the Assignment. 24. Upon taking possession of the Property in January 2016, Mizu commenced certain renovations to the Property in accordance with the terms and conditions of the Lease Agreement. None of these renovations included any alterations to the Property’s exterior walls, nor were there any structural repairs or alterations to the Property that exceeded $200,000.00. 25. In March 2016 Legacy informed Mizu that Legacy had not givenits consent to the Assignment and thereafter issued a 30 Day Notice to Quit. 26. Mizu thereafter engaged Coco’s to discuss Legacy’s claim that consent had not been given, and in response Coco’s represented that Legacy had provided the consent and also -4- MIZU SUSHI BAR& GRILL, INC.’S CROSS-COMPLAINT 838-3891-3088v1 {CHENG\20930003 OO 0 ~~ & th A» W O N N N N N N N N N N m e e e e m e m p d e d he m e e 0 J O N n n H A W N = O o 0 0 N N N B R A W N = O that even if it did not provide said consent Legacy had given up its rights for approval of the assignment. 27. In reliance upon Coco’s representations, including the representations that Legacy had provided its consent to the Assignment and even ifit hadn’t Legacy had given up those consentrights, Mizu did not vacate the Property after receiving Legacy’s 30 Day Notice to Quit. 28. In April 2016 Legacy brought its lawsuit against Coco’s and Mizu in an Unlawful Detainer action in Santa Clara County, Case No. 16-CV-294425 (the “UD Action”), and in reliance upon Coco’s prior representations, including the representation that Legacy provided its consent to the Assignment, Mizu incurred substantial attorneys’ fees in defending against the UD Action. 29. In August 2016 the Court determined that the Lease Agreement had been breached by virtue of the invalid assignment from Coco’s to Mizu, and accordingly awarded possession ofthe Property to Legacy. 30. On December 14, 2016 Legacyfiled its Complaint for Damagesin this current action,alleging in part that Mizu has committed waste and trespassed on the Property. FIRST CAUSE OF ACTION (Breach of Contract) 31. Mizu hereby incorporates by reference Paragraphs 1 through 30 of this Cross- Complaint as though fully set forth herein. 32. On December 4, 2015 Coco’s and Mizu entered into the Assignment under which Coco’s was required to assign to Mizu “all ofits right, title, obligations, and interest as tenant” under the Lease Agreement. 33. Mizu has performed all its obligations as required under the Assignment, including payment of the $350,000.00 Assignment Fee that was accepted by Coco’s. 34. Coco’s breached the Assignment by failing to obtain the requisite consent from Legacy required for Coco’s to assign to Mizu all of Coco’s “right, title, obligations, and interest as tenant” under the Lease Agreement. -5- MIZU SUSHI BAR& GRILL, INC.’S CROSS-COMPLAINT O O 0 N N O N n n s w N O N O N O N N N N N N m e m e m e e e e e e e e e s 0 N A L i A W N O V N N R W N N = O 838-3891-3088v1 ACHENG\20930003 35. Asaresult of Coco’s breach Mizu has suffered damages in an amount to be proven at trial. SECOND CAUSE OF ACTION (Negligent Misrepresentation) 36. Mizu hereby incorporates by reference Paragraphs 1 through 35 ofthis Cross- Complaint as though fully set forth herein. 37. Coco’s represented to Mizu that Coco’s had obtained Legacy’s consent and that Coco’s and Mizu could validly enter into the Assignment. 38. Unbeknownst to Mizu at the timeit entered into the Assignment, Coco’s representation that it had obtained Legacy’s consent was untrue and unwarranted by the information Coco’s had at the time it made said representation to Mizu. 39. Coco’s made such representation with the intent to induce Mizu to enter into the Assignment. 40. Mizujustifiably relied upon Coco’s representation that Coco’s had obtained Legacy’s consent, and based on such reliance accordingly ceased all other searches for suitable locations for its Korean barbeque restaurant, entered into the Assignment, obtained the requisite insurance coverage, commenced renovations to the Property, and defended against the UD Action. 41. Due to its reliance upon Coco’s representation, Mizu has suffered damages in an amount to be proven at trial. THIRD CAUSE OF ACTION (Unjust Enrichment / Restitution) 42. Mizu hereby incorporates by reference Paragraphs 1 through 41 ofthis Cross- Complaint as though fully set forth herein. 43, Mizu paid the $350,000.00 Assignment Fee to Coco’s pursuant to the Assignment. 44. As aresult of Coco’s failure to obtain Legacy’s consent regarding the Assignment Mizu has been forced to surrender possession of the Property. -6- MIZU SUSHI BAR& GRILL, INC.’S CROSS-COMPLAINT 838-3891-3088v1 1CHENG\20930003 O O 0 9 O N n n B s W N N O N N N O N O N O N N N m e m m e d h m em t m d e t pe t p e d 0 N N n n b h W N = O V N N N N R E W N - = O o 45. Notwithstanding the invalid assignment ofall of Coco’s “right, title, obligations, and interest as tenant” under the Lease Agreement to Mizu, Coco’s has retained the $350,000.00 Assignment Fee at the expense of Mizu. 46. Coco’s has been unjustly enriched by retaining the $350,000.00 Assignment Fee. PRAYER FOR RELIEF WHEREFORE, Defendant and Cross-Complainant MIZU SUSHI BAR & GRILL, INC. prays forjudgment against Defendants and Cross-Defendants COCO’S RESTAURNTS, INC. and FOOD MANAGEMENT PARTNERS, INC. and Cross-Defendant CATALINA RESTAURANT GROUP INC.as follows: 1. For compensatory damages in an amount to be proven at trial, including but not limited to the damages Mizu has sustained in obtaining insurance coverage for the Property, renovating the Property, defending against the UD Action, defending itself in this action, and lost profits in a sum according to proof; 2. Forrestitution ofthe $350,000.00 Mizu paid to Coco’s pursuant to the Assignment; 3 For prejudgment interest in an amount according to proof; 4. For an award ofcosts ofsuit incurred herein; and 5 For such other and furtherrelief as the Court deems just and proper. DATED: FEBRUARY 7,2017 BERLINER COHEN, LLP Ml CHRISTIAN E. PICONE MICHAEL J. CHENG ATTORNEYS FORDEFENDANTAND CROSS- COMPLAINANT MIZU SUSHI BAR& GRILL, INC. -7- MIZU SUSHI BAR & GRILL, INC.’S CROSS-COMPLAINT EXHIBIT A N n T n n V O 0 O&O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ASSIGNMENTAND ASSUMPTION OF LEASE THIS ASSIGNMENT AND ASSUMPTION OF LEASE (“Assignment™) is made as of oRmiLL 2015, by and between Coco’s Restaurants, Inc., a California corporation -(“Assignor”),=Mizu Sushi Bar,&Grill,2California corporation (“Assignee”). A. Assignor, as the successor-in-interest to Far West Services, Inc., a California corporation,as the tenant (the “Tenant™), and Legacy Sunnyvale Partners, LP, a California limited liability company, as the successor-in-interests to Western Properties Three, LLC, a New Jersey limited liability company, who succeeded to the interests ofWRG Associates Six, a New Jersey partnership, as the landlord (the “Landlord”), are parties to that certain Lease Agreement dated March 15, 1978 (the “Original Lease™), as amended by that certain Amendment to Lease With Respect To Property Located at 1209 Oakmead Parkway, Sunnyvale, California datedJune 1, 2002 {the “First Amendment”, and together with the Original Lease, collectively the “Lease”), with respect to certain premises located at 1209 Oakimead Parkway, Sunnyvale, California (the “Premises” aka “Leased Property Number 1” as defined in the Original Lease). A copy of the Lease is attached hereto as Exhibit “A” and incorporated herein. B. Assignor has agreed to assign to Assignee all of its right, title, obligations, and interest as tenant under the Lease, and Assignee has agreed to accept such assignment from Assignor and assume all of Assignor’srights, duties and obligations arising under the Lease to be performed as ofthe Effective Date (as defined below). NOW, THEREFORE, in consideration of the foregoing and the mutual covenants hereinafter set forth, Assignor and Assignee agree as follows: I. Assigoment. a, As ofJanuary 1, 2016 (the “Bffective Date”), Assignor hereby assigns to Assignee all of Assignor’s right, title, obligations, and interest in, to and under the Lease, subject to all of the terms and provisions ofthe Lease. b. Assignee hereby accepts the foregoing assignment and hereby assumes and agrees to be bound by and perform the terms, covenants and conditions ofthe Lease to be performed by the tenant under the Lease. Assignee further agrees to provide Landlord with its financial statements and/or reports which may reasonably requested by Landlord. 2, Assignment Fee and Rent Abatement. Assignee agrees to pay Assignor an assignment fee in the amount of$350,000.00 (the “Assignment Fee”). The Assignment Fee shall be paid by Assignee to Assignor on or before December 7, 2015. Subject to the full payment of the Assignment Fee by Assignee, Assignor hereby agrees to pay the rent payments for Assignee for a period of ninety (90) days starting from theEffective Date (the “Rent Abatement™). It is agreed and acknowledged by both parties that Assignor shall be responsible only for the rent obligations under the Lease during the Rent Abatement period. 3. Contingency. The effectiveness of this Assignment is contingent on the full payment of the Assignment Fee (the “Contingency™). If Assignee fails to make the payment of the Assignment Fee on time, this Agreement shall be null and void. US.66999257.02 4, Notice. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt), (b) when sent, if sent by facsimile or email, provided that confirmation ofthe email transmission is received from the recipient (that is not automaticallygenerated); (b) one business day followingsending by a nationally recognized... ... "overnight courier (receiptrequested); or (c) on the third day after the date mailed, by certified or registered mail, retarn receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 4): Assignor Coco's Restaurants, Inc. 120 Chula Vista San Antonio, Texas 78232 Attention: Real Estate Department Assignee Mizu Sushi Bar & Grill 10655 Gascoigne Drive Cupertino, California 95014 Attention: Kwang H. Lee 5. This Assignment may be executed in counterparts and this Assignment shall be effective when each Party shall have executed at least one counterpart thereof. 6. This Assignment shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective successors, transferees and assigns. [Remainder ofthispage is intentionally left blank.} US.66998257,02 IN WITNESS WHEREOF, the undersigned have executed this Assignment as of the Effective US.66398257.02 ASSIGNOR Coco's Restaurants, Inc. 7) By: JA we AeDsJ ASSIGNEE Mizu Sushi Bar & Grill -AY Jame: DavidLee / Title: President/CEO US.66998257.02 EXHIBIT “A” (attach copy of Lease and all amendments) 841-8792-8898v1 JAE\20930003 O O 0 3 O o n n h r W N N O O N N N R N N N D = e m e e s e e e m e e ® 9 6 8 t h B A L O N = © V v ® N n A W N = O LEGACY GOLDEN STATE V. COCO’S RESTAURANTS Case No. 16-CV-303987 PROOF OF SERVICE ~ N ! ™ Sh Ty I, Debra Troy,declare under penalty ofperjury underthe lawsofthe State of CaliforniathétJT the following facts are true and correct: 1 I am a citizen of the United States, over the age of eighteen years, and not a party to Re 3 within action. Iam an employee ofBerliner Cohen, LLP, and my business addregs is‘TenAlmaden Boulevard, Eleventh Floor, San Jose, California 95113-2233. On February 8, i.Iserved the!’ following document(s): SUMMONS ON CROSS-COMPLAINT AND MIZU S 1 BAR &, GRILL, INC.’S CROSS-COMPLAINT FOR: 1. BREACH OF CONTRACT 2. N GLIGENT) A MISREPRESENTATION 3. UNJUST ENRICHMENT/RESTITUTION T e d d in the following manner: [] by transmitting via facsimile the document(s) listed above to the fax number(s)set forth below, or as stated on the attached service list. The transmission wasreported as complete and without error by the machine. Pursuantto California Rules ofCourt, Rule 2008(e)(4), I caused the machine to printa transmission record ofthe transmission, a copy of whichis attached to the original ofthis declaration. The transmission report was properly issued by the transmitting facsimile machine. by placing the document(s)listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Jose, California addressed as set forth below. by overnight mail by placing the document(s) listed above in a sealed overnight mail envelope with postage thereon fully prepaid, addressed as set forth below. by personally delivering the document(s)listed above to the person(s) at the address(es) set forth below. by e-mail or electronic transmission. Based on a court order or an agreement ofthe parties to accept service by e-mail or electronic transmission,I cause the documents to be sent to the personsat the e- mail addresseslisted below. 1did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. ATTORNEY FOR PLAINTIFF LEGACY GOLDEN STATE, LLC: ROBERT A. BAILEY ANGLIN FLEWELLING RASMUSSEN CAMPBELL & TRYTTEN, LLP 301 NORTH LAKE AVENUE, SUITE 1100 PASADENA, CA 91101-4158 TELEPHONE: 626-535-1900 FACSIMILE: 626-577-7764 I am readily familiar with my firm’s practicefor collection and processing ofcorrespondence for mailing with the United States Postal Service/Express Mail, Federal Express and other overnight mail services, to wit, that correspondence will be deposited with the United States Postal Service/overnight mail service this same day in the ordinary course of business. Executed on February 8, 2017, at San Jose, California. Dowson I“ DEBRA TROY J < EXHIBIT B Macaulay, Brendan From: Macaulay, Brendan Sent: Thursday, November 15, 2018 11:59 AM To: ‘Cheng, Mike’ Cc: 'Picone, Christian E.' Subject: RE: Coco's v. Mizu - Judgment on the pleadings,atty. fee bills, GFS, Stipulated Facts Mike, Confirming our call just now, | request that you consider the email below to determine if you will change your mind relating to the dismissal of the negligent misrepresentation claim. To assist you in that analysis, here is a link to the case | cited, Stop Loss Ins. Brokers, Inc. v. Brown & Toland Med. Grp. (2006) 143 Cal. App. 4th 1036, 1041. | would also invite you to read Tarmann v. State Farm, 2 Cal.App.4th 153 (1991), also linked. | look forward to continuing this discussion tomorrow at 11:00 a.m. Brendan From: Macaulay, Brendan Sent: Friday, November 09, 2018 4:36 PM To: 'Cheng, Mike' Cc: 'Picone, Christian E.' Subject: RE: Coco's v. Mizu - Judgment on the pleadings, atty. fee bills, GFS, Stipulated Facts Mike, This email is to supplement the meet and confer we have had about our contemplated motion for judgment on the pleadings. When | asked how Coco's breached the assignment, you said that Coco's failed to get the consent of the landlord. That is consistent with Mizu’s allegation in the Cross-Complaint at Para. 34 that “Coco's breached the Assignment by failing to obtain the requisite consent from Legacy required for Coco's to assign to Mizu all of ‘Coco's right, title, obligations, and interest as tenant’ under the Lease Agreement.” However, Mizu has also included a tort claim for negligent misrepresentation because, as alleged in Para. 37, “Coco's represented to Mizu that Coco's had obtained Legacy's consent and that 8 Coco's and Mizu could validly enter into the Assignment.” Essentially, Mizu alleges that Coco's negligently misrepresented that it performed a contractual obligation to obtain the landlord’s consent. Respectfully, this cause of action is impermissibly trying to create a tort out of a breach of contract. Stop Loss Ins. Brokers, Inc. v. Brown & Toland Med. Grp. (2006) 143 Cal. App. 4th 1036, 1041 (“A person may not ordinarily recover in tort for the breach of duties that merely restate contractual obligations. Instead, courts will generally enforce the breach of a contractual promise through contract law, except when the actions that constitute the breach violate a social policy that merits the imposition of tort remedies.”). Accordingly, we ask that Mizu dismiss its negligent misrepresentation claim. Please let me know if you will do so by noon on November 13, 2018. Thank you very much, Brendan From: Macaulay, Brendan Sent: Thursday, November 08, 2018 12:19 PM To: 'Cheng, Mike' Cc: Picone, Christian E. Subject: RE: Coco's v. Mizu - Judgment on the pleadings, atty. fee bills, GFS, Stipulated Facts Gentlemen, Was the $13,000 issue ever raised as a claim in this case? Mizu had no cross-complaint, or even an offset claim, against Plaintiff in this case. | don’t recall Mizu raising that issue in the prior lawsuit either. Nor was that claim mentioned in the settlement between Mizu and Plaintiff. Thus, | really don’t see how that can be considered as “value” provided by Mizu in settlement. If that issue was raised anywhere in any pleading, discovery or anywhere else, please let me know. Thank you for providing the attorney bills. When we redacted Coco's bills, we limited our redactions to actual communications with the client, or research topics that were not revealed when a particular brief was thereafter filed. There may have been some other minor redactions, but they were pretty limited. | would encourage you to take a similarly limited approach to redaction. Can you please provide those invoices within 10 days? Please let me know if you will make Mr. Lee available for deposition on the bills that were previously withheld from us, and which you instructed him not to answer questions about. As for the Stipulated Facts, | do not recall ever getting a substantive response. And given that Mr. Picone has only emailed me 5 timesin this case, it was easy to verify my recollection (as | did just now). Thanks, Brendan From: Cheng, Mike [mailto:Mike.Cheng@berliner.com] Sent: Thursday, November 08, 2018 12:05 PM To: Macaulay, Brendan Cc: Picone, Christian E. Subject: RE: Coco's v. Mizu - Judgment on the pleadings, atty. fee bills, GFS, Stipulated Facts Brendan, You neglected to mention that you'd speak with Coco’s to find out whether or not they will be appearing for deposition (and as we previously discussed reimbursing Mizu for the costs associated with not showing up the first time). I'm currently available November 26, 27, and 29, as well as December 10-12, and 14. We will be providing redacted copies of Mizu’s attorneys’ feesbills. Regarding good faith settlement, Mizu will only stipulate that Coco’s settlement with Legacy qualifies as good faith if Coco's stipulates that Mizu’s settlement for $2,000 (plus the approximate $13,000 rent previously paid in error) also qualifies. Please let me know. As to the Stipulated Facts issue, I'll discuss with Christian (please remember to copy him on your emails) but | recall that he did provide a substantive response. Please double check and let me know. Mike From: Macaulay, Brendan Sent: Thursday, November 08, 2018 11:47 AM To: Cheng, Mike Subject: Coco's v. Mizu - Judgment on the pleadings, atty. fee bills, GFS, Stipulated Facts 2 Mike, | write to follow up on a number of items we discussed in our call today: 1. Motion for Judgment on the Pleadings: a. Unjust Enrichment. We previously met and conferred in connection with Coco's Motion in Limine #1 (attached) as to whether unjust enrichment is actually a cause of action in California. | think it is not, but you disagree. Although already raised as a MIL, the parties would probably benefit from an earlier resolution ofthis issue than the first day of trial. Because I think it could also be raised as motion for judgment on the pleadings, | plan to do so. b. Breach of Contract. We also met and conferred about whether your client's cause of action for breach of the assignment is valid. We may also bring a motion on that claim also. 2. Mizu’s Attorney Fee Bills. Coco's previously filed its MIL #3 (attached) relating to Mizu’s refusal to provide any evidence regarding the attorneys’ fees claim in this action, and its assertion of privilege relating to those bills or any questions of Mr. Lee regarding the bills. The purpose of this email is to ask you to reconsider that refusal/assertion and to: (a) produce all the invoices; and (b) produce Mr. Lee for a limited deposition related to the claim for attorneys’ fees. 3. Motions for Good Faith Settlement. a. | asked if you would stipulate that Coco's settlement with Plaintiff would qualify as a good faith settlement. In my view, payment of $100,000 in exchange for a dismissal of all of Plaintiff's claims against Coco's and Mizu would certainly qualify. You said “I think so,” but asked me to email you this request. b. You asked me if Coco's would stipulate that Mizu’s settlement with Plaintiff would also qualify as a good faith settlement. |said that a payment of $2,000 would not qualify as a good faith settlement in my view, given that Mizu had alone performed the demolition that lead to the million dollar claim for waste (not to mention all of Plaintiff's other claims). 4, Stipulated Facts. Before our August trial date, | sent you a set of Stipulated Facts that was derived from Mizu’s RFA responses and the 2017 Statement of Decision that is binding on both parties. Your partner, Christian Picone, eventually responded that it had “too many” facts. See his attached 8-7-2018 email. | have never received any meaningful response. Can you please provide one, after checking Mizu’s RFA responses and the Statement of Decision? Finally, with respect to a hearing on the aforementioned items, attached is the Court’s available hearing dates. January 17 is the only day where both a Motion for Judgment on the Pleadings and a Motion for GFS could both be heard. | think that date works for both of us. | look forward to hearing from you, Brendan Brendan F. Macaulay Attorney at Law NOSSAMAN LLP 50 California Street, 34th Floor San Francisco, CA 94111 bmacaulay@nossaman.com T 415.398.3600 F 415.398.2438 D 415.438.7204 Ml NOSSAMAN www.nossaman.com A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE The undersigned declares: I am employed in the County of San Francisco, State of California. Iam over the age of 18 and am not a party to the within action; my business address is c/o Nossaman LLP, 50 California Street, 34th Floor, San Francisco, CA 94111. On December 5, 2018, I served the foregoing CROSS-DEFENDANTS COCO’S RESTAURANTS, LLC AND CATALINA RESTAURANT GROUP INC. NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS [C.C.P. 438]; DECLARATION OF BRENDAN F. MACAULAY IN SUPPORT THEREOF on parties to the within action as follows: [] (By U.S. Mail) On the same date, at my said place of business, Copy enclosed in a sealed envelope, addressed as shown on the attached service list was placed for collection and mailing following the usual business practice of my said employer. I am readily familiar with my said employer's business practice for collection and processing of correspondence for mailing with the United States Postal Service, and, pursuant to that practice, the correspondence would be deposited with the United States Postal Service, with postage thereon fully prepaid, on the same date at San Francisco, California. [] (By Facsimile) I served a true and correct copy by facsimile pursuant to C.C.P. 1013(e), to the number(s) listed on the attached sheet. Said transmission was reported complete and without error. A transmission report was properly issued by the transmitting facsimile machine, which report states the time and date of sending and the telephone number of the sending facsimile machine. A copy of that transmission reportis attached hereto. [] (By Overnight Service) I served a true and correct copy by overnight delivery service for delivery on the next business day. Each copy was enclosed in an envelope or package designated by the express service carrier; deposited in a facility regularly maintained by the express service carrier or delivered to a courier or driver authorized to receive documents on its behalf; with delivery fees paid or provided for; addressed as shown on the accompanying service list. M (By Electronic Service) Pursuant to California Rules of Court, rules 2.251(a)(2) and 2.251(a)(3), by submitting an electronic version of the document(s) to One Legal, through the user interface at www.onelegal.com, I caused the document(s) to be sent to the person(s) listed on the attached service list. [] (By Electronic Service) By emailing true and correct copies to the persons at the electronic notification address(es) shown on the accompanying service list. The document(s) was/were served electronically and the transmission was reported as complete and without error. Executed on December 5, 2018. 1 (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. /s/ Anthony Levintow Anthony Levintow 1 PROOF OF SERVICE47969197.v1 A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Christian E. Picone Michael J. Cheng Debra Troy Donna Olson Nicole Packer BERLINER COHEN, LLP Ten Almaden Boulevard Eleventh Floor San Jose, CA 95113-2233 Tel.: 408-286-5800 Fax: 408-998-5388 christian.picone @berliner.com michael.cheng @berliner.com debra.troy @berliner.com donna.olson@berliner.com nicole.packer@berliner.com Attorneys for Defendant Mizu Sushi Bar & Grill, Inc. SERVICE LIST 2 47969197.v1 PROOF OF SERVICE
