Ex Parte Application

Cal. Super. - 6th Dist.October 21, 2019

OWQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Peter C. Catalanotti (SBN 230743) ww’s- ; peter.catalanotti@wilsonelser.com L E i .Jenny Y. Jin (SBN 296184) ‘ ,, , _' jenny.jin@wilsonelser.com Audrey Tam (SBN 305437) JAN z. .6 2022 audrey.tam@wilsonelser.com WILSON, ELSER, MOSKOWITZ, 9m C(lgflogfl‘the‘Cogurtta ClEDELMAN & DICKER LLP :g (1 u" V :3" 5'5 525 Market Street, 17th Floor BY 'ocm DEPUTY San Francisco, California 94105-2725 Telephone: (415) 433-0990 Facsimile: (415) 434-1370 Attorneys for Defendants Lundy Center Association, Inc., Jose Reynoso, Louella Eischen, Anh Nguyen, Chao-Cheng Yeh, and Tung Nguyen - SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA SHERRY CHEN, ) ) Plaintiff, ) Case No: 19CV356961 ) v. ) , ) A LUNDY CENTER ASSOCIATION, INC, a ) DEFENDANTS’w California mutual benefit corporation; JOSE ) APPLICATION TO DISMISS REYNOSO individually and as a Director; ) PLAINTIFF’S COMPLAINT FOR LOUELLA EISCHEN, individually and as a ) FAILURE TO AMEND Director; ANH NGUYEN, individually and as ) a Director; CHAO-CHENG YEH, individually) and as a Director; TUNG NGUYEN, ) Judge: Hon. Peter H. Kirwan individually and as a Director; and DOES 1 ) Dept: 19 through 25, inclusive, ) Hearing Date: January 26, 2022 ) Hearing Time: 8:15 A.M. Defendants. ) ) Defendants Lundy Center Association, Inc., Jose Reynoso, Louella Eischen, Anh Nguyen, Chao-Cheng Yeh, and Tung Nguyen (collectively, “Defendants”) present the following ex parte application, pursuant to CCP § 581(f)(2), for an Order dismissing Plaintiffs Complaint, with prejudice, as follows. DECLARATION OF PETER C. CATALANOTTI I, Peter C. Catalanotti, declare as follows: 1. I am an attorney duly admitted to practice before this Court. I am an attorney at the law firm of Wilson Elser Moskowitz Edelman & Dicker LLP, counsel of record herein for 1 DEFENDANTS’ Ex PARTE APPLICATION To DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE T0 AMEND 265632428v.1 XVd A8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant Lundy Center Association, Inc. (“Association”), Jose Reynoso, Louella Eischen, Anh Nguyen, Chao-Cheng Yeh, and Tung Nguyen (collectively, “Defendants”). Ihave personal knowledge of the facts set forth herein, except as to those stated on information and belief and, as to those, I am informed and believe them to be true. If called as a witness, I could and would competently testify to the matters stated herein. I make this declaration in support of Defendants’ ex part6 application for an Order dismissing Plaintiff” s Complaint for Failure to Amend. EX PARTE NOTICE - 2. On January 25, 2022 at 9:52 am, Inotified Plaintiff Sherry Chen’s counsel, Michael Bluto, via email of our intent to move ex parte on Wednesday, January 26, 2022 on the- papers pursuant to Santa Clara Local (Civil) Rule 16(c), to dismiss Plaintiff‘s Complaint, with prejudice, for failure to amend. As of the filing of this ex parte application, Mr. Bluto has not responded. Based on Mr. Bluto’s lack of response, I do not expect Plaintiff to oppose the application. Attached hereto as Exhibit A is a true and correct copy ofmy email to Mr. Bluto. RELEVANTBACKGROUND 3. This action arises out of a dispute over assessments imposed on non-party C Cube Investment, LLC (“C Cube”) by Association. C Cube is the owner of four units at the Lundy Professional Center Condominium Unit Project (the “Project”) and a member of the Association. Plaintiff Sherry Chen (“Plaintiff”) is a minority owner of C Cube and responsible for C Cube’s accounting. In mid-201 8, Association sued Plaintiff in an underlying action for injunctive relief, declaratory relief, nuisance, negligence, and money due for Plaintiff’s failure to make payments under the Association’s Covenants, Condition and Restrictions (the “CC&Rs”). Following mediation, Association dis‘missed the underlying action against Plaintiff in 2019. 4. On October 21, 2019, Plaintiff filed this action against Defendants, alleging negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, defamation, and declaratory relief, on the basis that the underlying action created a perception that Plaintiff shamelessly owed money intentionally and damaged Plaintiff’s reputation and credibility. 2 DEFENDANTS’ EX PARTE APPLICATION TO DISMISS PLAINTIFF’S CONIPLAINT FOR FAILURE TO ANIEND 265632428v.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. On June 22, 2021, Defendants filed a Motion for Judgment on the Pleadings (“MJP”) on the basis that all of Plaintiff’s causes of action are barred by the litigation privilege. In response, Plaintiff filed an opposition and a Motion for Leave to File an Amended Complaint (“MFL”). 6. On October 5, 2021, the Court heard oral argument 0n Defendants’ MJP. 7. On December 29, 2021, the Court issued its Order granting Defendants’ MJP in its entirefl. In the same Order, the Court denied Plaintiff‘s MFL, without prejudice to filing a different motion that complies with Rules of Court, Rule 3.1342. The Court ordered Plaintiff to file and serve her renewed motion to amend within 20 days of the Order. Attached hereto as Exhibit B is a true and correct copy of the Court’s Order. Accordingly, Plaintiff’s renewed Motion for Leave to File an Amended Complaint was due at the latest on January 24, 2022. 8. On January 11, 2022, I received a call from Mr. Blutb, advising that he had been engaged by Plaintiff to represent her in this case. 9. On January 19, 2022, Mr. Bluto filed an bx parte application to continue the' hearing date on Defendants’ Motion to Compel Further Discovery Responses from Plaintiff. 10. During these communications, Mr. Bluto did not advise of Plaintiff’s intent, if any, to file a renewed Motion for Leave to File an Amended Complaint. 11. On January 24, 2022, the Court granted Plaintiff’s ex parte application and continued the hearing on Defendants’ Motion to Compel Further Discovery Responses to February 24, 2022 at 9:00 a.m. 12. To date, Plaintiff has not filed a renewed Motion for Leave to File an Amended Complaint that was due to be filed no later than January 24, 2022. GOOD CAUSE FOR EX PARTE ORDER 13. ' CCP § 581(t)(2) states that the court may dismiss the complaint when “after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” Dismissal must be with prejudice. See Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330. 14. CRC 3.1320(h) provides that “[a] motion to dismiss the entire action and for entry 3 DEFENDANTS’ EX PARTE APPLICATION TO DISMISS PLATNTIFF’S COMPLAINT FOR FAILURE TO AMEND 265632428V.1 kl! DJ VO‘x 1o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ofjudgment after expiration of the time to amend following the sustaining and overruling of a demurrer may be made by ex parte application to the court under [CCP §] 581(f)(2).” 15. A motion for judgment on the pleadings has the same function as a general demurrer but is made after the tirhe for demurrer has expired. Except as provided by statute, the rules governing demurrers apply. Cloud v. Northrop Grumman Corp. (1998) 67 Cal. App. 4th 995, 999. 16. Accordingly, CCP § 581(f)(2) and CRC 3.1320(h) should likewise apply to motions for judgment on the pleadings. 17. Here, there is good cause to dismiss the entire action, with prejudice, and enter judgment in favor of Defendants because Plaintiff failed to file her renewed Motion for Leave to File an Amended Complaint within 20 days after the Court’s Order as ordered by the Court. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 25, 2022 at San Francisco, California. //p By' Peter C; Catalanotti 4 DEFENDANTS’ EX PARTE APPLICATION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO AlVIEND 265632428v.1 Exhibit A From: Catalanotti, Peter Sent: Tuesday, January 25, 2022 9:51 AM To: mbluto@cjhapc.com Cc: Tam, Audrey Subject: Chen v. Lundy, et al. (ex parte notice) Mr. Bluto: Please be advised of the following: 1. Defendants intend to move, ex parte, for an order dismissing the lawsuit based upon Chen’s failure to amend the complaint, CCP § 581(f)(2). 2. Date of hearing: 1/26/23 3. Dept. 19 (Judge Kin/vin) ‘ 4. Application will be heard on the papers, per Local (Civil) Rule 16(c), unless the Court orders otherwise. Best, PETE Peter Catalanotti Attorney at Law Wilson Elser Moskowitz Edelman & Dicker LLP 525 Market Street - 17th Floor San Francisco, CA 94105-2725 415.625.9347 (Direct) 415.433.0990 (Main) 415.434.1370 (Fax) petematalanotti@wilsonelser.com pronouns: he, him, his Exhibit B \OOONONMAL'JN 10 11 12 13 14 15 l6 17 l8 l9 20 21 22 23 24 25 ‘26 27 28 SUPERIOR COURT 0F CALIFORNIA COUNTY 0F SANTA CLARA SHERRY CHEN, Case No. 19CV356961 Plaintiff, vs. ORDER RE: MOTION FOR JUDGMENT ON THE PLEADINGS AND MOTION BY PLAINTIFF TO FILE AMENDED LUNDY CENTER ASSOCLATION, INC, et a1. COMPLAINT Defendants. DECISION ON SUBMITTED MATTER The Motion for Judgment on the Pleadings to the Complaint by defendants Lundy Center Association, Inc. (“Association”), Jose Reynoso (“Reynoso”), Louella Eischen (“Eischen”), Anh Nguyen (“Anh"), Chao-Cheng Yeh (“Yeh”), and Tung Nguyen (“Tung”) (collectively “Defendants”) to the complaint of plaintiff Sherry Chen (“Plaintiff’), and Plaintiff‘s motion for leave {o file an amended complaint, came on for hearing before the Honorable Mary E. Arand on October 5, 2021 at 9:00 am. in Department 19. The matter having been submitted, the Court orders as follows: I Factual and Procedural Background This action arises out of a dispute over assessments imposed on non-party C Cube Investment, LLC (“C Cube”) by Association. Association is a non-profit, mutual benefit l Case No. 19CV349792 Order Re: Motion for Judgment to the Complaint; Motion for Leave to Amend ©00\JO\M#WND-' p-b-H N-‘O 14 15 l6 17 18 19 20 21 22 23 24 25 26 27 28 corporation established for the governance of the Lundy Professional Center Condominium Unit Project (the “Project”). (Complaint, 1i 2.) Reynoso, Eischen, Anh, Yeh, and Tung (collectively, “Individual Defendants”) are directors ahd/or officers of Association. (Id. at 1N 4-9.) The Project is an office building consisting of 41 condominium units. (Ibid.) All units within the Project are governed by a Declaration of Covenants, Conditions and Restrictions (the “CC&Rs”) and Bylaws. (Ibid.) C Cube is the owner of four units at the Project and a member of Association. (Id. at 1H] l & 3.) Plaintiff is a minority owner ofC Cube and responsible for C Cube’s accounting. (Id. at 1W l, 13, & 44.) Under the terms of the CC&Rs, membérs of Association are required to pay regular assessments on a monthly basis and special assessments when needed. (Complaint, 1] 12.) Beginning in 201 6, Defendants allegedly adopted unfair and ever-changing methods of calculating assessments owed by Association members in violation of the CC&Rs. (1d. at 1H] 14- 18, 56-60, 62-63, & 83.) C Cube disputed the charges and eventually filed an action in small claims court. (Id. at 1m 14 & 17-19.) Defendants allegedly used different methods of calculating ’assessments to punish C Cube and Plaintiff for complaining about the assessments. (Id. atfl 63- 64, 83-84, & 86.) In mid-201 8, Association sued Plaintiff in an underlying action - Lundy Center Association, Inc. V, Sherry Chen dba C Cube Investment LLC (Santa Clara County Superior Court, Case No. 18-CV-328953) -for injunctive relief, declaratory relief, nuisance, negligence, and money due. (Complaint, 1] 20.) Asséciation claimed that Plaintiff failed to make payments required under the CC&Rs and interfered with other members' rights of quiet of enjoyment and use of their properties at the Project. (Ibid.) Defendants allegedly filed the underlying action against Plaintiff to intimidate and harass her, and in retaliation for complaining about the assessments, even though Defendants knew the action was without merit. (1d. at 1m 29, 34-35, 44-45, 80, & 85.) In addition, Defendants’ initiation of the underlying action violated the terms of the CC&Rs because Defendants did not hold a membership meeting to obtain approval from the majority of Association members to file the lawsuit. (1d. at 1111 20-22, 69-70, & 94.) Case No. 19CV349792 Order Re: Motion for Judgment to the Complaint; Motion for Leave to Amend _..-._ _.--‘~_. .......__._.._._._....-- 10 11 [2 13 14 15 l6 17 l8 19 20 21 22 23 24 25 26 27 28 \OOONQMAUJN Later that year, Plaintiff answered Association’s complaint and filed a cross-complaint, asserting causes of action for breach of contract, breach of fiduciary duty, fraud, unjust enrichment, negligence, injunctive relief, and money due. (Complaint, fl 23-25 & 36.) Plaintiff claimed that she was not a member of the Association as she was not an ow ner of the subject units, and Association violated its obligations under the CC&Rs and the Bylaws. (Ibi d.) Thereafter, Association successfully demurred to the operativ e cross-complaint in the underlying action, arguing that Plaintiff lacked standing to bri ng the cross-complaint. (Complaint, 1H] 37-38.) Following mediation, Association dismissed the underlying a ction against Plaintiff in September 2019. (Complaint, fl 52-55.) Plaintiff alleges Association wrongfully continued to prosecute its underlying action long after Association was aware that its claims against her I lacked merit. (Id. atW 24-27, 29, 32, 34-35, 37-39, 50, 75, &I94.) The underlying lawsuit allegedly “created a perception of [Plaintiff] shamelessly owed money intentionally and damaged [Plaintiff’s] reputation and credibility.” (Id. at 1m 32 & 90-91 .) On October 21, 2019, Plaintiff filed this action against Defendants, allegin g causes of action for: (l) negligence; (2) negligent infliction of e motional distress; (3) intentional infliction of emotional distress; (4) defamation; and (5) declaratory relief. h On June 9, 2020, the Court issued its order on demurrer, overruling the demu rrer based 0n a defect or misjoinder of parties, and sustaining demurrer to th e fourth cause of action for defamation for failure to state a claim. On June 26, 2020, Defendants filed its answer to the remaining causes of action in the complaint. On June 22, 202 I, Defendants filed a motion for judgment on the pleadin gs. In response, Plaintiff filed an opposition, and a motion for leave to file an amend ed complaint. However, Plaintiff failed t0 attach a copy of the proposed pleading to her m otion as required, and the only place in the record that it is found is in the opposition to the motion for leave filed by the Defendants. Case No. 19CV349792 Order Re: Motion for Judgment to the Complaint; Motion for Leave to Amend Lo.) \OOO\IO\MA 10 11 12 13 14 \ 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Discussion I. Legal Standard The function of a demurrer (and a motion forjudgment on the pleading) is to test the legal sufficiency of a pleading. (Trs. OfCapital Wholesale Elec. E tc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 62 l .) Consequently, “ ‘[a] demurrer reaches only to the contents bf the pleading and such matters as may be considered under the doctrin e ofjud‘iéial notice’ [citation].” (Hilltop Properties, Inc. v. State (1965) 233 Ca1.App.2'd 349, 353; see Code Civ. Proc., § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the [ ] allegations [in the challenge d pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. [ ] Thus, [ ] the facts allege d in the pleading are deemed to be true, however improbable they may be.” (Align Technology, Inc. v. Tr an (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.) However, while “[a] demurrer admits all facts properly pleaded, [it does] not [admit] contention s, deductions of conclusions of law or fact.” (George v. Automobile Club ofSouthern California (201 1) 201 Cal.App.4th 1112, 1120.) II. The Prior Demurrer does not prevent a motion for Judgment on the Pleadings. A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. Except as prdvided by sta tute, the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp. (1998) 6 7 Cal.App.4th 995, 999.) "The motion provided for in this section may be made as to ei ther of the following: (A) The entire complaint or cross-cdmplaint or as to any of the causes 0f action stated therein. (B) The entire answer or one or more of the affirmative defenses Set forth in the answer." (CCP§ 438(c)(2).) Defendants’ previously overruled demurrer was based on different grou nds and therefore does not preclude Defendants’ present motion. A motion forjudgment on the pleadings may be made after the court has overruled a demurrer by the moving pafty, if (a) the motion is made on different grounds than those asserted in the demurrer. (CCP§ 438(g). 4 Case No. 19CV349792 Order Re: Motion for Judgment to the Complaint; Motion for Le ave to Amend kooouoxmhww 10 ll 12 l4 15 l6 l7 18 19 20 21 22 23 24 25 26 27 28 III. Litigation Privilege Anabsolute privilege exists for public ations made: (1) in any legislative, judicial or other official proceeding (CC § 47(b)(1)-(3); see Ke nne v. Stemzis (2014) 230 Cal.App. 4th 953, 963- 965 (addressing scope of privilege); o r (2) in any proceeding aut horized by law and reviewable by writ of mandate (CC § 47(b)(4)).) “The litigation privilege is codified in Civil Cod e section 47 ‘[a] privileged publication or broadcast is one made [i]n any judicial proceeding [Citati on.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057 (Rushe en).) “The privilege recogni zed in [that statute] derives from common law principles establishi ng a defense to the tort of defama tion. [Citation.]" abut) ' “Although originally enacted with referen ce to defamation [citation], the privilege is now held applicable to any communication, w hether or not it amounts to a pub lication [citations], and all torts except malicious prosecuti on. [Citations.] [1]] The usual f ormulation is that the privilege applies to any communicatio n (1) made in judicial or qua si-judicial proceedings; (2) by litigants or other participants auth orized by law; (3) to achieve the o bjects of the litigation; and (4) that have some connection or l ogical relation to the action. [Citations.]” [Citation]. Thus, “communications with ‘some relati on’ to judicial proceedings” are “absolutely immune from tort liability” by the litigation privilege [citation] . (Rusheen, supra, 37 Ca1.4th at p. 1057.) _ The pufpose of the privilege is to “a fford litigants free access to the courts without fear o being harassed by later derivative tort ac tions; encOurage open channels o f communication and zealous advocacy; promote complete a nd truthful testimony; give finality to judgments; and avoid unending litigation.” (People v . Persolve, LLC (2013) 218 Cal.App.4th 1267 , 1274.) Here, the sole basis of the remaini ng causes of action is the filing of the underlying lawsuit by Association. (Complaint, 1H} 32 & 90-91.) Specifically, Plaintiff asserts that the allegations in the underlying lawsu it “created a perception of [Plaintiff] shamelessly owed money intentionally and damaged [Plai ntiff‘s] reputation and credibility. ” (Ibid.) A claim for relief filed in court-such as the underlyi ng lawsuit-is “indisputably a statement or writing made before a judicial proceeding.” (Navell ier v. Sletten (2002) 29 Ca1.4th 82 , 90; see also Case No. 19CV349792 Order Re: Motion for Judgment to th e Complaint; Motion for Leave to Amend ‘OmfiOxLfl-lkb-IN 10 11 12 I3 l4 15 16‘ 17 18 19 20 21 22 23 24 25 26 27 28 Briggs v. Eden CouncilforHope & Opportunity (1999) 19 Ca1.4th 1106, 1115.) Fu rthermore, the underlying lawsuit was a statement ma de by a litigant -Association, to achieve the objects of the litigation, and that had some connect ion or logical relation to the und erlying action. Thus, each cause of action is barred by the lit igation privilege. The litigation privilege “applies to any c ommunication made (a) in judicial or quasi- judicial proceedings; (b) by litigants or other participants authorized by law ; (c) to achieve the objects ofthe litigation; and (d) ha ving some connection 0r logical rela tion to the action.” The privilege applies “even though the p ublication is made outside the cour troom and no function of the court or its officers is inv olved.” (Silberg v. Anderson (1990) 5 0 Cal.3d 205, 212; Jacob B. v. County ofShasta (2007) 40 Cal. 4th 948, 955.) The litigation privilege applies to all t ort claims except malicious prosecution. (Silberg v. Anderson, supra, 50 C3d at 215-216. ) No malicious prosecution claim is alle ged in thé present complaint. Courts have applied the defense o f litigation privilege to negligen ce actions (as cited above), negligent infliction of emotional distress claims: (Heller v. Norcal Mut. Ins. C0. (1994) 8 CaI.4th 30, 45; Kemps v. Beshwate (2009) 180 Cal.App.4th 1012, 1019; 5 Witkin, Summary of California Law, Torts §§ 133, 660- 662, 666-674; intentional infli ction ofED claims: Kenne v. Stelmis (2014) 230 Cal.App.4th 953, 971-972-privilege defeated cla im for IIED based on defendant's filing false police reports , and civil harassment petitions; Cox v. Griflin (2019) 34 Cal.App.5th 440, 449.) I Accordingly, all of Plaintif f’s existing claims are barred by the l itigation privilege, and the motion for judgment on the plead ings is GRANTED in its entirety. III. Motion for leave to file amended complaint. As mentioned above, Plaintiff has filed a m otion for leave to file an amend ed complaint. The Court only knows the contents of the proposed pleading because the Defendants attached the proposed amended complaint to their op position, in violation of the R ules of Court. First, Plaintiff s motion does not meet th e requirements ofCRC Rule 3.1324(a) in spe cifying what Case No. 19CV349792 Order Re: Motion for Judgment to the Complaint; Motion for Leave to Amend b) Ko‘ooxlo‘uuA ‘10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 allegations are proposed to be add ed or deleted in the First Amended Co mplaint (“FAC”) and the proposed pleading is not attached to the motion. It also appears that the Profiosed FAC fails to state a claim. The first 53 pages of the propose complaint contains 72 paragraphs of rambling and incoherent allegations such a s loud banging in the unit that s he claims results in a battery, water leaks, and other claims entire ly unrelated to the original Com plaint, and then a host of entirely new claims, including claims now brought by Plaintiff‘s husband, and two claims of battery, two claims for IIED, negl igence, malicious prosecutio n, two claims for private nui sance, etc. This proposed FAC does not address or correct the defects in the prior pleading. Plaintiff must demonstrate how the comp laint might be properly amen ded. (See Buena Vista Mines, Inc. v. Industrial Ind eInnity Co. (2001) 87 Cal.App .4th 482, 48 [the burden is on the plaintiffto demonstrate the manner in which the complaint might be am ended]; see also Goodman v. Kennedy (1976) 18 Cal.3 d 335, 349 [a court may sustain a de murrer without leave to amend if a plaintiff fails to show t here is any reasonable possibility of curing the defect in the pleading through amendment].) A plaintiff bears the burden ofproving an amendm ent would cure the defect iden tified on demurrer. (Schifando v. City ofLos Angeles (2003) 31 Ca1.4th 1074 , 1081; see also Medina v. Safé-Guard Products (2008) 16 4 Cal.App.4th 105, 112 fn. 8 [“As the Rutter'Practice Guide states: ‘It is not up to the judge to figure out how the complaint can be amended to state a cause of action. Rather, the burden is on the plaintiff to show in what manne r he or she can amend the complaint, and how that amendment wi ll change the legal effect of th e pleading.’”]; Drum v. San Fernando Valley Bar Ass ’n. (2010) 182 Cal.App.4th 247, 253 [citing Medinaj.) “[W]h ere the plaintiff requests leave to amend the com plaint, but the record fails to suggest how the plaintiff could cure the complaint's defec ts, ‘the question as to whether or not [the] court abused its discretion [in denying the pl aintiff‘s request]‘is open on appeal .’ (Code Civ. Proc., § 472C, subd. (a).) Absent an effective request for le ave to amend the complaint in sp ecified ways, an abuse of discretion can be found ‘ only if a potentially effective amendme nt were both apparent and consistent with the plaintiff 's theory of the case.” (Jenkins v. JPMorgan Chase Bank, N.A. Case No. 19CV349792 Order Re: Motion for Judgment to the Complaint; Motion for Leave to Amend l 2 n J 4 5 6 7 8 9 10 ll 12 13 14 15 l6 ‘ 17 18 l9 20 21 22 23 24 25 26 27 28 (2013) 216 Cal App 4th 497, 507, internal c itations omitted, emphasis added, disapproved on another ground in Yvanova v. New Century Mortg. Co rp. (2016) 62 Ca1.4th 919, 934, 93 9, fn. 13 (Yvanova).) Plaintiff’s motion for leave to amend is DENIED, without prejudice to filing a di fferent motion that fully complies with Rules of Cou rt, Rule 3. 1342. Plaintiff repeat edly tried to file the proposed FAC without a prior cofirt order, and insist ed that she needed to do that so tha t the Court could review it. The Court explaine d to her that the proposed FAC could only be at tached as an exhibit to her motion to amend, and would not be filed without a court o rder. Plaintiff shall file and serve her renewed motion to amend within 20 days of t his order. This order does not by itself grant the mo tion to amend, only gives her lea ve to file a motion. Datedzoecemberzmom MMZ s .WM Hon. Mary E. Arand Judge of the Superior Court Case No. 19CV349792 Order Re: Motion for Judgment to the Com plaint; Motion for Leave to Amend A flak)! 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2.5 26 27 28 PROOF OF SERVICE Sherry Chen v. Lundy Center Association, Inc. et al., Santa Clara County Superior Court Case No.: 19CV356961 At the time of service I was over 18 years of age and not a party to this action. I am employed by in the County of San Francisco, State of Califorhia. My business address is 525 Market Street, 17th Floor, San Francisco, California 94105. My bUSiness Facsimile number is (415) 434-1370. On this date I served the following document(s): DEFENDANTS’ EX PARTE APPLICATION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO AMEND 0n the person or persons listed below, through their respective attorneys of record in this action, by the following means of service: D: By United States Mail. I placed the envelope(s) for collection and mailing, following our ordinary business practices. I am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course 0f business with the United States Postal Service, in a sealed envelope with postage fully prepaid. D: OVERNIGHT MAIL - As follows: I am “readily familiar” with the firm’s practice of processing correspondence for mailing overnight via Federal Express. Under that practice it would be deposited in a Federal Express drop box, indicating overnight delivery, with delivery fees provided for, on that same day, at San Francisco, California. E: BY E-MAIL - Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, Icaused the documents to be sent to the persons at the e-mail addresses listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. SEE ATTACHED SERVICE LIST I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct to the best ofmy knowledge. EXECUTED on January 25, 2022, at San Francisco, California.fl- Michael' Folger 5 DEFENDANTS’ EX PARTE APPLICATION TO DISMISS PLAINTIFF’S COIVIPLAINT FOR FAILURE TO AMEND 265632428v.1 SERVICE LIST Sherry Chen v. Lundy Center Association, Inc. et al., Santa Clara County Superior Court Case No.2 19CV356961 UI-PWN \OWNQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Attorney for Plaintiff Michael D. Bluto CJH & Associates, P.C. 5901 Christie Ave, Ste 500, Emeryville, CA 94608-1953 Tel: 510-817-0808 Fax: 510-817-0807 Email: mbluto@cjhapc.com DEFENDANTS’ EX PARTE APPLICATION TO DISMISS PLAINTIFF’S COWLAINTI FOR FAILURE TO 265632428v.1 7 ANIEND