Opposition ObjectionsCal. Super. - 6th Dist.October 21, 201910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1QCV356961 Santa Clara - Civil Peter C. Catalanotti (SBN 230743) peter.catalanotti@wilsonelser.com Jenny Y. Jin (SBN 296184) jenny.jin@wilsonelser.com Audrey Tam (SBN 305437) audrey.tam@wilsonelser.com WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 525 Market Street, 17th Floor San Francisco, California 94105-2725 Telephone: (415) 433-0990 Facsimile: (415) 434-1370 Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/22/2021 11:57 AM Reviewed By: L. Nguyen Case #1 9CV356961 Envelope: 7317282 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. ) ) DEFENDANTS’ OPPOSITION TO LUNDY CENTER ASSOCIATION, INC, a ) PLAINTIFF’S MOTION FOR LEAVE TO California mutual benefit corporation; JOSE ) FILE FIRST AMENDED COMPLAINT; REYNOSO individually and as a Director; ) DECLARATION OF COUNSEL LOUELLA EISCHEN, individually and as a ) Director; ANH NGUYEN, individually and as ) a Director; CHAO-CHENG YEH, individually) Date: October 5, 2021 and as a Director; TUNG NGUYEN, ) Time: 9:00 am. individually and as a Director; and DOES 1 ) Dept: 19 through 25, inclusive, ) ) Action Filed: October 21, 2019 Defendants. ) Trial Date: None ) ) 1 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION OF COUNSEL 25 1444997V.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Introduction Defendants Lundy Center Association, Inc. (“HOA”), Jose Reynoso, Louella Eischen, Anh Nguyen, Chao-Cheng Yeh, and Tung Nguyen (collectively, “Defendants”) oppose Plaintiff Sherry Chen’s Motion for Leave (“MFL”) to Amend to File a First Amended Complaint (“FAC”). The proposed FAC seeks to add Plaintiff s husband as a plaintiff, as well as various new allegations and causes of action against Defendants that are entirely different from the allegations made in the underlying Complaint. This Motion was filed shortly after Defendants filed a Motion for Judgment 0n the Pleadings (“MJP”) based on the litigation privilege. In the MFL, Plaintiff attempts to avoid the consequences of the allegations in her original complaint by completely changing the factual allegations in her proposed FAC. Both the MJP and MFL are set to be heard 0n October 5, 2021. The Court should deny Plaintiff s Motion because 1) Plaintiff s Motion does not meet the requirements ofCRC Rule 3.1324(a) in specifying What allegations are proposed t0 be added or deleted in the FAC; and 2) all 0f the proposed causes of action fail t0 state a cause of action 0n the face 0f the proposed pleading. 2. Background a. Parties The parties to this dispute are as follows: Party Role Plaintiff Sherry Chen Minority Owner 0fC Cube Investment, LLC, a member 0f Lundy Center Association, Inc. Defendant Lundy Center Association, Homeowners Association Inc. (“HOA”) Defendants Jose Reynoso; Louella Present and Former HOA Board Members Eischen; Anh Nguyen; Chao-Cheng Yeh; and Tung Nguyen b. Relevant Background i. 2018 Underlying Lawsuit by HOA against Plaintiff In May 2018, the HOA filed a Complaint against Plaintiff to recover unpaid assessments 2 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION OF COUNSEL 25 1444997V.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and costs from Plaintiff. Decl. of Counsel, EX. A. On September 9, 2019, the HOA filed a Request for Dismissal 0f this Complaint without Prejudice. Decl. 0f Counsel, EX. B. The dismissal was entered 0n September 13, 2019. Plaintiff’s proposed FAC alleges that this dismissal was filed based 0n the HOA’s lack 0f standing, as C Cube Investment, LLC (“C Cube”) was the owner of the subject units. Proposed FAC 11 80-83, 279. ii. 2019 Present Lawsuit On October 21, 2019, Plaintiff filed the present lawsuit against Defendants. Decl. 0f Counsel, EX. C. The Complaint alleges causes of action for Defamation (dismissed following a demurrer), Negligence, Negligent Infliction of Emotional Distress, Intentional Infliction of Emotional Distress (“IIED”), and Declaratory Relief. These causes 0f action all stem from allegations that Defendants acted wrongfully in filing the prior 2018 lawsuit against Plaintiff. iii. June 2020 Demurrer On June 10, 2020, this Court sustained Defendants’ Demurrer to the Complaint, in part. The Court sustained the demurrer as t0 the cause of action for defamation, without leave t0 amend. Decl. of Counsel, EX. D. The Court concluded that the litigation privilege barred this cause of action, and commented in footnote 2 of its order that “notably, Plaintiff has not pleaded a cause 0f action for malicious prosecution.” iv. June 2021 MJP On June 22, 2021, Defendants filed a MJP that is set t0 be heard 0n the same day as the subject Motion. The MJP argues that the Complaint is barred by the litigation privilege and that Plaintiff lacks standing t0 sue since she is not the owner 0f record 0f the subject units. Decl. 0f Counsel 11 6. V. July 2021 MFL On July 20, 2021, Plaintiff filed the present Motion and the proposed FAC. Decl. of Counsel, EX. E. The proposed FAC does not identify What allegations it adds 0r removes as compared to the underlying Complaint. The proposed FAC is based almost entirely 0n a new set 0f facts regarding alleged banging noises and water leaks to support the new causes 0f action for Trespass, Battery, and Private Nuisance against Defendants. These new allegations are also now 2 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION OF COUNSEL 25 1444997V.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 being used t0 support Plaintiff” s existing causes 0f action for Negligence and IIED. The proposed FAC attempts to plead around arguments made in Defendants’ MJP based on the litigation privilege. 3. Legal Argument a. The Motion Should be Denied as Plaintiff Did Not Meet The Requirements 0f CRC, Rule 3.1324. A motion t0 amend must state “what allegations in the previous pleadings are proposed t0 be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located” and “state what allegations are proposed to be added to the previous pleading. . .and where, by page, paragraph, and line number, the additional allegations are located.” CRC, Rule 3.1324(a). Here, Plaintiff’s Motion merely states that it intends t0 add a plaintiff and add “addition 0f causes of action for Malicious Prosecution, Trespass t0 Land and Battery. MPA 7:11-16. This is grossly insufficient. Nor does Plaintiff identify in herMgg proposed FAC What allegations she proposes t0 delete and/or add by page, paragraph, and line number. Based on the foregoing, Plaintiff” s Motion should be denied. b. The Proposed FAC Fails t0 State Any Cause 0f Action Against Defendants 0n the Face 0f the Pleadings. A judge has discretion to deny leave to amend Where a proposed amendment fails t0 state valid causes of action. See California Cas. Gen. Ins. C0. v. SupCt. (Gorgei) (1985) 173 Cal.3d 274, 280-281. Such denial is plainly appropriate where the proposed pleading is deficient as a matter of law and the defect cannot be cured by fithher amendment. See Foxborough v. Van Atta (1994) 26 Ca1.4th 217, 230. Indeed, this saves both the Court and parties the additional time and expense in filing and hearing a demurrer. Here, the Motion should be denied as all of the proposed FAC’S causes 0f action fail t0 state a cause 0f action against Defendants, 0n the face 0f the pleadings. Moreover, several 0f the proposed causes of action, including Malicious Prosecution, IIED, and Negligence, are barred by the two-year statute of limitations. As further discussed below, the relation back doctrine does not apply as the proposed FAC is not based 0n the same operative set 0f facts as the underlying 3 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION OF COUNSEL 25 1444997V.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint. i. First Cause 0f Action for Malicious Prosecution 1. The Proposed FAC Fails t0 Meet the Required Elements for Malicious Prosecution. Malicious prosecution requires that the prior proceeding have ended in plaintiff’s favor. See Sheldon Appel C0. v. Albert & Oliker (1989) 47 Cal.3d 863, 881. A termination onfl substantive grounds does not reflect defendant's innocence of the alleged misconduct and is not “favorable” for malicious prosecution purposes. See Casa Herrera, Inc. v. Beydoun (2004) 32 C4th 336, 342. A dismissal based 0n lack 0f standing is not a “favorable” termination. See Hudis v. Crawford (2005) 125 Cal.4th 1586, 1592. Here, the underlying lawsuit by the HOA against Plaintiff was dismissed based upon the HOA’S lack of standing t0 sue the individual (Plaintiff) Sherry Chen since the unit at issue was owned by an entity. See Proposed FAC, 11 279. As Plaintiff alleges, this Court has already ruled that Plaintiff lacks standing as an individual t0 sue the HOA since she is not an owner. Proposed FAC, 1W 80-82. Since the underlying lawsuit upon Which Plaintiffbases her malicious prosecution claim was dismissed for lack of standing, the FAC 0n its face does not meet the required elements for Malicious Prosecution. The prior lawsuit was a two-party case that was filed by the HOA against Plaintiff Sherry Chen only. Even if Plaintiffs cause of action for Malicious Prosecution was somehow allowed, she could not allege them against any party other than the HOA since only the HOA was a party t0 the underlying lawsuit. Therefore, the FAC on its face does not meet the required elements for Malicious Prosecution and Plaintiff’ s MFL should be denied. 2. New Plaintiff CC Chen Has No Standing to Sue for Malicious Prosecution, and This Claim is Time Barred as t0 Him. First, “every action must be prosecuted in the name 0f the real party in interest, except as otherwise provided by statute.” CCP § 367. The prior lawsuit was a two-party case: filed by the HOA against Plaintiff Sherry Chen only. Therefore, Plaintiff’ s proposed new plaintiff (her husband) CC Chen lacks standing t0 bring a cause 0f action for Malicious Prosecution against 4 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION OF COUNSEL 25 1444997V.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants. Second, statute 0f limitations for malicious prosecution is two years. CCP § 335.1. The claim accrues When the prior action terminates favorably t0 the malicious prosecution plaintiff. Where the amendment adds a plaintiff Whose claim is independent of the Claims previously asserted, the amendment does not “relate back” t0 the original complaint. Branick v. Downey Sav. &L0an Ass'n (2006) 39 C4th 235, 243. Here, the HOA’s prior lawsuit was dismissed 0n September 13, 2019. As this new cause of action by new plaintiff CC Chen does not relate back to the date of the original Complaint’s filing, this claim is now time barred as t0 CC Chen. Based 0n the foregoing, this Court should deny the Motion With respect t0 malicious prosecution. ii. Second, Sixth, and Eleventh Cause 0f Action for IIED. 1. The Second Cause 0f Action is Tied t0 Malicious Prosecution. The proposed FAC’S second cause 0f action is tied t0 alleged emotional distress suffered in connection with the first cause of action for Malicious Prosecution. Proposed FAC 1] 287-290. As the cause of action for Malicious Prosecution it not actionable for the reasons discussed above, this cause 0f action must necessarily also fail. 2. The Sixth Cause 0f Action Does Not Relate Back t0 Original Complaint and is Time Barred. The proposed FAC’S sixth cause 0f action relates t0 alleged noise 0r banging that occurred above Plaintiff s unit between December 28, 2018 and January 9, 2019. Proposed FAC fl 91-1 14, 3 17. The noise was allegedly caused by a malfimctioning motor of an AC unit. Proposed FAC fl 101. This proposed cause 0f action is beyond the two-year statute 0f limitations for IIED and does not relate back to the date of the original Complaint, as discussed below. See CCP § 335.1. For “relation back” effect t0 be given to an amended complaint alleging new causes of action, an amended complaint must be based 0n the same operative set of facts and seek recovery for the same injuries as those in the original complaint. See Barrington v. A.H. Robins C0. (1985) 39 Ca1.3d 146, 150-151. Here, Plaintiff’s underlying Complaint was based 0n Defendants’ alleged, improper prior 5 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION OF COUNSEL 25 1444997V.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 lawsuit filed against her. The proposed FAC alleges completely ne_w allegations that Defendants caused Plaintiff damages by allowing a banging noise t0 occur above Plaintiff’s unit that started 0n December 28, 2019 and ended 0n January 9, 2019. Proposed FAC 11 91. Therefore, the sixth cause of action d0 not relate back t0 the date 0f the original Complaint and is now time barred, 0n the face of the pleadings. 3. The Eleventh Cause 0f Action Does Fails t0 State Outrageous Conduct. In order to be actionable, a cause of action for intentional infliction of emotional distress (“IIED”) requires outrageous conduct. The conduct must be so extreme as t0 be beyond all bounds ofdecency tolerated by society. Hughes v. Pair (2009) 46 C4th 1035, 1050-105 1; see Yau v. Santa Margarita Ford, Inc. (2014) 229 CA4th 144, 160-161-t0 avoid demurrer, plaintiff must allege such acts With great specificity. Mere indignities, insults, threats, annoyances, petty oppressions and the like are not enough. Hughes v. Pair (2009) 46 C4th at 105 1. The statute 0f limitations for HED is two years. See CCP § 335.1. The proposed eleventh cause 0f action is based on allegations that Defendants improperly calculated certain utility bills over the years that resulted in an unfair allocation t0 Plaintiff. Proposed FAC 1] 205-272, 354. This does not amount to extreme and outrageous conduct that is required t0 support a cause 0f action for IIED. Based 0n the foregoing, this Court should deny the Motion as t0 the second, sixth, and eleventh causes of action for IIED. iii. Third and Seventh Causes 0f Action for Negligence 1. These Causes 0f Action Are Time Barred. The statute 0f limitations for negligence is two years. See CCP § 335.1. The proposed third and seventh causes of action for Negligence are based 0n allegations that 1) a faulty AC unit caused noise above Plaintiff s unit from between December 28, 2018 and January 9, 2019, and 2) a faulty HVAC system caused water leaks into Plaintiff s units primarily between October 2016 and July 2019. Proposed FAC 1] 94-1 14, 169-189. For the reasons discussed above, the relation back doctrine does not apply as the proposed 6 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION OF COUNSEL 25 1444997V.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FAC is not based 0n the same operative facts and does not seek recovery for the same injuries as those in the underlying Complaint. See Barrington A.H. Robins C0,, supra, 29 Cal.3d at 150-15 1. The underlying Complaint was based 0n Defendants’ prior lawsuit filing, not any alleged noise 0r water leaks. Therefore, these proposed causes of action are now beyond the two-year statute 0f limitations and are untimely. 2. None of the Defendants Owed a Duty t0 Plaintiff. T0 support negligence, a defendant must owe a duty t0 plaintiff. Absent a duty, there is no liability, no matter how easily the injury might have been prevented. See J.L. v. Children’s Institute, Inc. (2009) 177 CA4th 388, 396; Bily v. Arthur Young & C0. (1992) 3 C4th 370, 397- threshold element is existence 0f duty to use due care toward another. Here, the proposed causes of action allege that there was a “special relationship” that “established the affirmative obligation from the individual Defendants t0 the plaintiffs. Proposed FAC 11 295, 326. However, the proposed FAC itself states that C Cube Investment and not Plaintiff was and is the owner of the subject units. Proposed FAC 1] 6, 205. Therefore, any duty owed by Defendants was to the owner 0f the subj ect units, and not to Plaintiff. Based 0n the foregoing, this Court should deny the Motion as to the third and seventh causes 0f action for Negligence. iv. Fourth and Eighth Cause of Action for Private Nuisance 1. Plaintiff Lacks Standing As a Non-Owner. For a cause of action for Private Nuisance, a plaintiff must either have a property 0r possessory interest in the land affected (e.g., as owner or tenant in possession) 0r be the holder of an easement for profit 0r a nonpossessory estate adversely affected by the interference. Rest.2d Torts § 821E. Here, as discussed above, the proposed FAC alleges that Plaintiffwas and is not the owner of the subj ect units. Proposed FAC fl 6, 205. Therefore, Plaintiff lacks standing t0 bring this cause 0f action against defendants. /// /// 7 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION OF COUNSEL 25 1444997V.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. The Proposed FAC Fails t0 Allege that Defendants Created the Nuisance. To be actionable nuisance, a defendant’s conduct must have created or produced the nuisance. See Tint v. Sanborn (1989) 211 CA3d 1225, 1228. Here, the proposed FAC does not allege that Defendants created either the banging noise 0r the water leaks. Instead, the proposed fourth and eighth causes 0f action allege that Defendants “allowed a motor and compressor above the office 0f [Plaintiff] t0 create” noise and that Defendants failed t0 “maintain and repair the HVAC systems and the building roof” that allegedly led to water dripping into Plaintiff’s unit. Proposed FAC 1] 142, 196. It is further alleged that another resident in the building discovered that “the AC unit above [Plaintiff’s] office has a problem with the motor.” Proposed FAC 1] 101. These allegations d0 not support that Defendants in any way created these nuisances. Therefore, on the face of the pleading, the proposed FAC fails to meet the requirements needed for a cause 0f action for Private Nuisance. Based on the above, this Court should deny the Motion as to the fourth and eighth causes 0f action for Private Nuisance. V. The Fifth and Ninth Causes 0f Action for Battery Fail t0 Allege a Cause 0f Action. Battery is an intentional and offensive touching 0f a person Who has not consented t0 the touching. See Conte v. Girard Orthopaedic Surgeons Med. Group, Inc. (2003) 107 Ca1.4th 1260, 1266. Direct body-to-body contact is not required. As the proposed FAC itself quotes at 11 145, “[one] is liable [for battery] if [one] throws a substance, such as water, upon the other. . .” Rest.2d Torts, § 18, com. c, pp. 30-31. Here, the causes of action for Battery is based 0n allegations that Defendants “desired to allow heavy pounding, banging, and shaking t0 continue” from a faulty, upstairs AC unit and “desired to allow the water from the water pan 0f the rooftop AC system t0 continue to pour into Plaintiff s unit. Proposed FAC 1] 3 13, 345. First, noise or Vibrations does not constitute a touching that is required t0 support Battery. Even assuming it did, Defendants’ alleged failure t0 repair a faulty motor in an AC unit does not 8 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION OF COUNSEL 25 1444997V.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 constitute an intentional and offensive touching. Second, Defendants’ alleged failure to maintain a HVAC system that caused water to drip into Plaintiff’ s unit also does not constitute an intentional and offensive touching. As the proposed FAC itself references, one is liable for battery if one throws a substance, such as water, upon another. Here, there are n0 allegations that any defendant threw water onto Plaintiff. On the face of the pleadings, the proposed FAC fails t0 allege battery by any defendant. vi. The Tenth Cause 0f Action for Trespass. 1. The Proposed FAC Fails t0 State a Cause 0fAction for Trespass. The essence 0f trespass is an unauthorized entry onto another’s land that disrupts the right t0 exclusive possession. See Civic Western Corp. v. Zilda Indus., Inc. (1977) 66 Ca1.3d 1, 17-18. Although a defendant need not personally enter upon a plaintiff” s property for actionable trespass, some kind 0f physical intrusion by defendant (such as casting substances 0r objects onto a property) needs t0 be established. See Elton v. Anheuser-Busch Beverage Group, Inc. (1996) (50 Cal.4th 1301, 1306-1307. Here, t0 support trespass, the proposed FAC alleges that “the individual Defendants did not properly or adequately maintain the HVAC systems and roof that cause the water dripping 0r pouring into CC CHEN’S office. . .” Proposed FAC 1] 203, 349. The proposed FAC does not allege that any defendant physically entered into Plaintiff” s unit 0r that any defendant cast 0r threw water into Plaintiff’s unit. The allegation that Defendants, volunteer HOA board members, did not properly maintain the HVAC systems, is insufficient t0 support a cause 0f action for Trespass. 2. Plaintiff Lacks Standing as a Non-Owner. Generally, landowners and tenants have a right to exclude persons from trespassing 0n private property; the right to exclude persons is a fundamental aspect 0f private property ownership.” Ralphs Grocery C0. v. Victor Consultants, Inc. (2017) 17 Cal.App.5th 245, 258 (emphasis added). Here, as discussed above, neither Plaintiff Sherry Chen nor proposed Plaintiff CC Chen were 0r are the owners of the subject units. Therefore, Plaintiff lacks standing t0 bring a cause of action for Trespass against Defendants. 9 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION OF COUNSEL 25 1444997V.1 A QONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Based 0n the foregoing, this Court should deny the Motion as t0 the tenth cause of action for Trespass. 4. Conclusion For the reasons stated above, Defendants respectfully request that this Court deny Plaintiff s Motion for Leave to File the First Amended Complaint. This Motion should be denied because 1) Plaintiff failed to meet the requirements 0fCRC Rule 3. 1324(a) in specifying What allegations are proposed to be added 0r deleted in the proposed FAC; and 2) all of the proposed causes of action fail to state a cause 0f action 0n the face of the pleadings. Respectfully submitted, Dated: September 22, 2021 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP Peter C. Catalanotti Jenny Y. Jin Attorneys for Defendants Lundy Center Association, Inc., Jose Reynoso Louella Eischen, Chao-Cheng Yeh, Anh Nguyen, and Tung Nguyen 10 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION OF COUNSEL 25 1444997v.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF COUNSEL I, Jenny Y. Jin, declare as follows: 1. I am an attorney licensed t0 practice before all 0f the courts in the State 0f California. I am employed by WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, counsel 0f record for Defendants Lundy Center Association, Inc. (“HOA”), Jose Reynoso, Louella Eischen, Chao-Cheng Yeh, Anh Nguyen, and Tung Nguyen (collectively, “Defendants”) in this action. Ihave personal knowledge of the facts set forth in this Declaration and, if called as a witness, could and would testify competently to such facts under oath. 2. Attached as Exhibit A is a true and correct copy of the HOA’s Complaint against Plaintiff that was filed on May 25, 2018. 3. Attached as Exhibit B is a true and correct copy of the HOA’S Dismissal 0f the Complaint against Plaintiff that was filed 0n September 9 2019. This dismissal was entered 0n September 13, 2019. 4. Attached as Exhibit C is a true and correct copy 0f Plaintiff” s underlying Complaint against Defendants that was filed on October 21, 2019. This Complaint is based on allegations that the HOA’s prior lawsuit against Plaintiff was wrongful. 5. Attached as Exhibit D is a true and correct copy 0f this Court’s order that sustained Defendants’ Demurrer t0 the Complaint in part that was filed 0n June 10, 2020. The Court sustained the Demurrer as to the Complaint’s fourth cause of action for Defamation, without leave to amend. 6. On June 22, 2021, my office filed a Motion for Judgment 0n the Pleadings that is set to be heard on October 5, 2021. Our Motion argues that all of Plaintiff’s causes of action in the Complaint is barred by the litigation privilege and that Plaintiff lacks standing t0 sue since she is not the owner 0f record 0f the subject units. 7. Attached as Exhibit E is a true and correct copy of Plaintiffs Proposed First Amended Complaint (“FAC”). Neither Plaintiff’ s subject Motion nor the proposed FAC identify What allegations the proposed FAC adds 0r removes as compared to the underlying Complaint. However, a review 0f the proposed FAC shows that it at least adds new causes of action for 11 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION OF COUNSEL 25 1444997V.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Private Nuisance, Battery, and Trespass against Defendants. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on September 22, 2021 in San Francisco, California.w Jenny Jin, Declarant 12 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION OF COUNSEL 25 1444997v.1 Exhibit A E-FILED 5/25/2018 1:45 PM Clerk of Court Superior Court of CA, County of Santa Clara 18CV328953 Reviewed By: L. Quach-Marcellana 18CV328953 IO II 12 l3 l4 15 l6 l7 20 21 22 23 24 25 26 27 28 WHITE & MacDONALD, LLP Rob D. MacDonald, Esq. #129069 Steven M. White, Esq. #161258 James P. Hillman, Esq. #217946 1530 The Alameda, Suite 21 5 San Jose, CA 95 126 Telephone: 408-345-4000 Facsunile: 408-345-4020 Attorneys for Plaintiff, LUNDY CENTER ASSOCIATION, INC. SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA LUNDY CENTER ASSOCIATION, INC., Case No: Plaintiff, vs_ COMPLAINT FOR INJUNCTION RELIEF/ MANDATORY INJUNCTION, SHERRY CHEN dba c CUBE DECLARATORY RELIEF, NUISANCE, INVESTMENT LLC, NEGLIGENCE, AND MONEY DUE and DOES 1 through 25, Inclusive, Limited Jurisdiction Under $25,000 Defendants. Plaintiff, LUNDY CENTER ASSOCIATION, INC., (“Lundy” or “Association”) alleges as follows: FIRST CAUSE OF ACTION (INJUNCTIVE RELIEF/MANDATORY INJUNCTION) l. PlaintiffLUNDY CENTER ASSOCIATION, INC. (“Association”) is, and at all times herein mentioned was, a non-profit mutual benefit corporation existing under the laws of the State of California, and the owners’ association for the professional common interest development commonly known as the Lundy Center (“Project”). The Association has the right and duty to govern, manage and maintain the Proj ect. 2. Defendant SHERRY CHEN dba C CUBE INVESTMENT LLC (“Chen”) and Does 1 through 25, inclusive, are and at all times mentioned herein, were residents of Santa Clara County, California. Plaintiff does not know the true names of DOES 1 through 25, inclusive. Plaintiff is COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES 1 10 ll 12 13 14 15 l6 17 18 l9 20 21 22 23 24 25 26 27 28 informed and believes and alleges that at all times herein mentioned, each of these Defendants are and were an owner, tenant, resident or the agent, servant, representative, and/or employee of the owners and/or Defendants and were acting within the scope and course of such agency, service, representation and employment. 3. The Lundy Center Proj ect is a commercial common interest development as defined in California Civil Code §§4100, 6531 and 6534. A11 properties within the Project, including individually owned lots, units, condominiums and common areas, are subject to the Declaration of Covenants and Restrictions Establishing a Plan for Condominium Ownership (“CC&Rs”), which were duly recorded in the Office of the County Recorder of Santa Clara County on April 25, 2006, as Document No. 18901781. A First Amendment to the CC&RS was recorded in the Office of the County Recorder of Santa Clara County on July 19, 201 1, as Document No. 21248779 and upon this recording, the First Amendment was incorporated into, and became a part of, the CC&Rs. 4. Defendant Chen is the record owners of four (4) Units at the Project and these Units are commonly known as: 1879 Lundy Avenue, Units 238, 266, 268, 286, San Jose, CA 9513’1 (collectively, the “Units”). The Units located within the Project and subject to the CC&Rs, as well as the Association’s other Governing Documents.1 ‘ 5. The true names and capacities, whether individual, corporate, associate, partner or otherwise, ofDOES 1 through 25, inclusive, are unknown to PlaintiffAssociation, who therefore sues said Defendants by such fictitious names. Association will move to amend this Complaint to show their true names and capacities when the same have been ascertained. 6. The covenants and restrictions contained in the CC&Rs constitute equitable servitudes under Civil Code §§5975 and/or 6856 that inure to the benefit of, and are binding on, all Owners of units within the Proj ect, including the Defendants. 7. The CC&Rs and the Association’s Bylaws create and establish the Association as the governing body for the management, administration and operation of the Project. Per the language 1 As used herein, the term “Governing documents” means the CC&Rs, Bylaws, Operating Rules and the Articles of Incorporation which govern the operation of the Association and Project. Additionally, the term “Governing Documents“ means and refers to Civil Code Sections 4150 and 6552. COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES 2 19 20 21 22 23 24 25 26 27 28 of the CC&Rs, as well as Civil Code §§5975 and/or 6856, the Association is authorized to enforce the CC&Rs as well as the rest of the Governing Documents. 8. Article 1, Section 1.15 of the CC&Rs requires all owners at the Project, including Defendant, to pay their share of“common expenses” in relation to units owned. It provides: "Common Expenses" means the actual and estimated expenses of managing, maintaining, repairing, replacing and operating the Common Area and any reasonable reserve for such purposes as found and determined by the Association (including all costs and expenses incurred under covenants, conditions, easements and restrictions existing and of record prior to the recordation of this Declaration ("Prior Restrictions")) and all sums designated Common Expenses by or pursuant to the Project Documents (defined in Section 1.45). Common Expenses shall also include the actual and estimated expenses of periodic maintenance and testing of any built-in burglary and fire protection devices, water and sewer systems, sprinkler systems, or equipment (including telephone equipment and lines), the costs of water, electricity, gas and other service to the Common Area and the Units. With regard to utility services provided to the Units, Declarant shall have the right to install submeters for each Unit to measure the amount of electricity and gas and any other utility service used in each Unit on a monthly or other periodic basis. The cost of the electricity and gas used in each Unit, if not measured by meters installed by a utility company, will be based on the submeter information and shall be the responsibility of the Owner of such Unit, and such costs shall not be allocated based on such Owner‘ s interest in the Common Area. Although it is the intent of this Declaration to allocate all Common Expenses of the Common Area to each Owner based on its percentage interest in the Common Area, this Declaration acknowledges that in certain instances, certain expenses should be home by only some ofthe Owners (for example, one Owner's excessive use 0f water when compared to other similarly situated Owners or one Owner causing damage to some poxtion of the Common Area, either by neglect or overuse). In such case, the Association shall have the sole discretion to determine (1) when such an event occurs, and (2) the amount to be allocated to one or more Owners in such event. The Association's determination of whether an expense is allocable to all the Owners or to particular Owners shall be conclusive and binding on all Owners absent obvious error. The Association, if it deems feasible, shall have the right to install separate meters or other monitoring devices in case of any dispute as to the responsibility for paying for any particular service, and the Owners involved in the dispute shall pay for the same in proportion to their interests. COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES 3 20 21 22 23 24 25 26 27 28 9. Article l, Section 4.1 of the CC&Rs creates assessment obligations requiring each owner of a unit at the Project, including Defendant by way of her ownership ofthe Units, to promptly make payment of the assessments to the Association: Declarant and each Owner by acceptance ofa deed for a Condominium, whether or not it shall be so expressed in such deed, covenants and agrees: (1) to pay to all Assessments, and (2) to allow the Association to enforce any Assessment Lien established hereunder by nonjudicial proceedings under a power of sale 0r by any other means authorized by law. The Regular Assessments, Special Assessments, and Cost Reimbursement Assessments together with interest, late charges, collection costs and reasonable attorneys' fees, shall be a charge on the Condominium and shall be a continuing lien upon the condominium against which each such Assessment is made, the lien to become effective upon recordation of a Notice of Delinquent Assessment. Each such Assessment, together with interest, late charges, collection costs, and reasonable attorneys' fees, shall also be the personal obligation of the Person who was the Owner of such Condominium at the time when the Assessment fell due. The personal obligation for delinquent Assessments shall not pass to its successors in title unless expressly assumed by them. No Owner shall be exempt from liability for payment of Assessments by waiver of the use or enjoyment of any of the Common Areas or by the abandonment of the Owner's Condominium. 10. When an assessment is payment is not timely made, Article 4, Section 4.10 of the CC&Rs makes Defendant responsible for late penalties and interest charges as follows: Effect of Nonpayment of Assessments. Any Assessment not paid within ten (1 0) days afier the due date shall bear interest at the rate of ten percent (10%) per annum commencing thirty (30) days after the due date until paid and shall incur a late payment penalty in the amount of ten percent (10%) 0f the delinquent Assessment 0r $10, whichever is greater. 11. Article 6, Section 6.1 of the CC&Rs requires Defendant to reimburse the Plaintiff Associatian utility costs as follows: Common Area utilities costs and utilities included on a master meter and billed to the Association shall be included in Assessments and shall be divided as set forth in Section 4.7, unless the Association makes a special allocation of such costs as a Cost Reimbursement Assessment. Ifthe Association believes that an Owner is using an excessive amount of any utility service that is not separately metered to the Units, the Association may assess the Unit Owner for the costs of the amount of such utility service that is greater than the average amount used by the CDMPLAINT' FDR.INJUNCFIVE RELIEF AND DAMAGES 4 10 ll 12 13 l9 20 2| 22 23 24 25 26 27 28 other Unit Owners as a Cost Reimbuxsement Assessment. The Association may install or have installed separate meters or submeters to measure the usage of such utility service, and charge the costs of installation and operation ofany such separate meter or submeter to the Unit which uses excessive amount of such utility service as a Cost Reimbursement Assessment. 12. Article 6, Section 6.4 of the CC&Rs provides as follows: Each Unit shall have a separate meter for its electricity and gas (if any) servicing the Unit, and the Owner shall be responsible for payment of all charges based on said meters. Each Owner shall maintain and repair the Utilities Facilities servicing only its Unit, except for those facilities or portions thereofmaintained by utility companies or the City. Owners shall maintain the heating and air conditioning system (ifany) servicing their respective Units, and all light fixtures and appliances therein, and pay all utility bills metered therefor. 13. Article 7, Section 7.2 prohibits any nuisance activity by owners such as Defendant: No noxious, illegal, or seriously offensive activities shall be carried on upon any Condominium, or in any part of the Property, nor shall anything be done thereon which may be or may become a serious annoyance or a nuisance to or which may in any way interfere with the quiet enjoyment of a Unit, or which shall in any way increase the rate of insurance for the Project, or cause any insurance policy to be cancelled or to cause a refusal to renew the same, or which will impair the structural integrity ofany building, or which will endanger the lives or health of occupants. 14. Article 9, Section 9.9 of the CC&Rs requires all owners, including Defendant, to comply with all covenants, conditions and restrictions of the CC&Rs and it gives the Association certain enforcement authority in order to gain and maintain compliance: Owners' Compliance. Each Owner, tenant or occupant of a Condominium shall comply with the provisions ofthis Declaration, and (to the extent they are not in conflict with the Declaration) the Articles and Bylaws, and the decisions and resolutions of the Association or the Board, as lawfully amended from time to time. Failure to comply with any such provisions, decisions, or resolutions shall be grounds for an action (1) to recover sums due, (2) for damages, (3) for injunctive relief, (4) for costs and attorneys fees, or (5) any combination ofthe foregoing. Generally, Article XIV, Section 14.6 authorizes the Association to recover its attomey’s fees in any action to enforce the provisions of the CC&Rs. Further, The Association’s Governing Documents COMPLAINT FOR TNJUNCTIVE RELIEF AND DAMAGES 5 10 11 12 20 2] 22 23 24 25 26 27 28 permit the Association to fine Lot owners for violations ofthe Governing Documents and to the extent the Defendants were fined, Association has a right to recover those fine amounts. 15. Article 9, Section 9.1 of the CC&Rs provides the Association with enforcement authority and authorizes it to recover its attomeys’ fees in any action to enforce the provisions of the CC&Rs and Governing Documents: Enforcement. The Association, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens, and charges now or hereafter imposed by the provisions of this Declaration, and the Bylaws, and in such action shall be entitled to recover reasonable attorneys’ fees as are ordered by the Court. Failure by the Association or by any Owner to enforce any covenant c-r restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. In addition, Civil Code Section 5975 provides that a prevailing party in an action to enforce the Governing Documents shall be awarded its reasonable attorneys’ fees and costs. l6. Pursuant to the CC&Rs, Defendant Chen is responsible for the payment ofassessments and costs and expenses with respect to each of the Units. Association provides account statement, invoices and demands for payment to all owners and members of the Association on a monthly basis in order to collect monies owed for the assessments and common expenses as described above. Defendant Chen received monthly statements, invoices and demands for payments for her Units on a monthly basis since at least January 2017 through, and including, April 2018. Despite the statements, invoices and demands, Defendant Chen has failed to make payment for all assessments and common expenses incurred in 201 8 in the amount of at least $8,783.24. 17. Contrary to the Association’s request and demand, Defendants, and each of them, refused to make payments as required by the CC&Rs. Despite the Association’s demands under the CC&Rs, Defendants have taken no corrective actions concerning their violations of the CC&Rs and remain delinquent in the payment of assessments and expenses. As a result, Defendants, and each of them, remain in violation 0f the CC&Rs. 18. As a proximate result of Defendants’ breach of the CC&Rs, Plaintiff Association has incurred and will continue to incur attorney’s fees, costs and expenses in connection with the enforcement ofthe CC&Rs and Defendants’ willing violation thereof. Under Article 9 ofthe CC&Rs COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES 6 10 11 12 l3 19 20 2] 22 23 24 25 26 27 28 and Civil Code Section 5975, the Association is entitled to recover attorney’s fees, costs and expenses incurred in enforcing the CC&Rs. l9. By way of the continued violation of the CC&Rs, Defendants have interfered with, and will continue to interfere with, the other members of the Association and their right of quiet enjoyment and use of their properties at the Project. Defendants continued violations of the CC&Rs have interfered with, and will continue to interfere with, Association’s ability to govern, manage and maintain the Project. Defendants’ continued violations of the CC&Rs are annoying, offensive and constitute a nuisance as toward the Association and its members. 20. Continued violation of the CC&Rs by Defendants, and each 0f them, will irreparably harm Plaintiff Association and its members by diminishing the desirability, attractiveness, usefulness, and economic value of the units and common areas located within the Proj ect and by making future enforcement of the CC&Rs with respect t0 similar violations impractical, if not impossible. 21. The violations of the CC&Rs by Defendants described herein are repeated and continuous and would, therefore, require a multiplicity of actions and constitute an undue hardship to Plaintiff Association and its members if permitted to continue unabated. 22. Plaintiff Association has no adequate remedy at law to compel Defendants to comply with the CC&Rs, nor-can the Association be compensated adequately for the injuries by an award of damages, in that it will be impossible for the Association to determine the precise amount ofdamage it will suffer ifDefendants’ conduct is not remained; the usefulness and economic value ofthe Project will be substantially diminished; efforts of other owners to sell or lease their units will be prejudiced; and other owners of units (members of the Association) will be subjected to additional costs and fees so that utility service is not terminated at the Project and so that the Association can manage and maintain the Project because Defendants and their Units, which have been, and remain, in violation of the CC&Rs for failure to pay, and continue to pay, their assessments and expenses. Association requests the Court to direct Defendants to comply with the provisions of the CC&Rs. WHEREFORE, Plaintiff Association prays for judgment against Defendants, and each of them, as hereinafter set forth. /// COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES 7 10 11 12 l3 l4 15 l6 17 18 20 2] 22 23 24 25 26 27 28 SECOND CAUSE 0F ACTION (DECLARATORY RELIEF) 23. Plaintiff Association incorporates herein by reference Paragraphs 1 through 22 of the First Cause of Action as though fully set forth herein at length. 24. An actual controversy has arisen between Plaintiff and Defendants, in that Plaintiff maintains that the CC&Rs require Defendants to make, and continue to make, timely payment oftheir assessments and portion of the common expenses and Defendants have failed, and continue to fail, to make these payments in a timely manner. Defendants, and each ofthem, have refused to acknowledge their payment obligations and have refused to comply with the demand of the Plaintiff Association, as well as the requirements of the Project’s Governing Documents, to make these payments. 25. Plaintiff desires ajudicial determination and declaration of Plaintiff s and Defendants’ respective rights and duties under the CC&Rs. Specifically, Plaintiff requests the determination of whether Plaintiff is entitled to enforce against Defendants, and each of them, the terms of its CC&Rs and to require timely payment of assessments and expenses. Such a declaration is necessary at this time so that Plaintiff can determine its rights under the CC&Rs. Accordingly, Plaintiff requests that this Court adjudicate the controversy, interpret the CC&Rs and issue its declaration of the rights, duties and obligations of the parties under the CC&Rs. WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as hereinafter set forth. THIRD CAUSE 0F ACTION (NUISANCE) 26. Plaintiff re-alleges and incorporates herein by reference each and every allegation contained in Paragraphs 1 through 25 of the First and Second Causes of Action as though fi111y set forth herein at length. 27. For a period of time, continuing through present, Plaintiff has suffered injury to the use and enjoyment of its common area and the Project as a whole as a result of the Defendants, and each of them, and their failure to comply with the CC&Rs and make timely payment of assessments and their share of common expenses. Additionally, Plaintiff‘s members have suffered injury to their COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES 8 10 II 12 l3 l4 15 16 17 18 20 2| 22 23 24 25 26 27 28 use and enjoyment of the common area, the Project and their units as a result of the Defendants’ failure to make payment as alleged herein and this constitutes a nuisance within the meaning of California Law. 28. Plaintiff has given notice to Defendants to the damage caused by the nuisance, and failure to make payment but Defendants have steadfastly refused and continue to refuse to abate the nuisance. 29. As a proximate result of the nuisance created by Defendants, Plaintiff has been damaged, and will be damaged, in an amount as yet unascertained. WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as hereinafier set forth. FOURTH CAUSE 0F ACTION (NEGLIGENCE) 30. Plaintiff Association incorporates herein by reference Paragraphs 1 through 29 of the First, Second and Third Causes of Action as though fully set forth herein at length. 31. Plaintiff is informed and believes and thereon alleges that Defendants, and each of them, were, and are, the owners and/or occupants of the Units. 32. By way of the express terms and conditions set forth in the recorded CC&Rs, Plaintiff is informed and believes and thereon alleges that Defendants, and each of them, knew or should have known that the Units must be in compliance with the Association’s Governing Documents, including the CC&Rs, and that as owners and occupants of the Units, the Defendants had a duty to ensure that compliance. 33. The Defendants, and each of them, were under a duty to exercise ordinary care to comply with the CC&Rs and Governing Documents by making sure all payments of assessments and common expenses were paid pursuant to the CC&Rs, 34. Defendants, and each of them, failed and neglected to comply with the Governing Documents, including the CC&Rs, in refusing to make payment of assessments and expenses as required by the CC&Rs. COMPLAINT FOR [NJUNCTIVE RELIEF AND DAMAGES 9 10 11 12 13 l4 IS 16 17 18 l9 20 21 22 23 24 25 26 27 28 35. That as a direct and proximate result of the foregoing negligence, Plaintiffhas sufl‘ered and will continue to suffer damages in seeking to gain the compliance of defendants, and each of them, with the Governing Documents, including the CC&Rs. WHEREFORE, Plaintiff Association prays for judgment against defendants, and each of them, as hereinafier set forth. FIFTH CAUSE 0F ACTION (MONEY DUE) 36. Plaintiff re-alleges and incorporates herein by reference each and every allegation contained in Paragraphs l through 35 of the First, Second, Third and Founh Causes of Action as though fully set forth herein at length. 37. Within the last year, defendants have become indebted to Plaintiff in the sum of at least $8,783.24 for money owed t0 Plaintiff pursuant to the CC&Rs. 38. Plaintiff has demanded payment from defendants. 39. No payment has been made by defendants to Plaintiff and there is now owing the sum of $8,783.24, an amount that increases on a daily and monthly basis per the CC&Rs. WHEREFORE, Plaintiffdemandsjudgment against Defendants, and each ofthem, as follows: 1. For mandatory injunction directing Defendants to timely pay, and continue to pay, all assessments and common expenses as required by the CC&Rs and enjoining Defendants from failing to make such timely payments in the future; 2 For damages in the amount of at least $8,783.24 recoverable per the CC&Rs; 3. For incidental damages in an amount to be established according to proof at trial; 4 For declaration of the rights, duties, and obligations of the parties under the CC&Rs; 5. For an award of attorney’s fees, costs, fines and expenses per statute and the CC&Rs in accordance with proof; and 6. For such other and further relief as the Court may deem just and proper. /// /// /// COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES [0 10 ll 12 13 l4 15 16 17 18 l9 20 2| 22 23 24 25 26 27 28 DATED: May 24, 201 8 WHITE & MacDONALD, LLP V- IgleS P. HILLMAN, ESQ. BY Attorneys for Plaintiff COMPLAINT FOR TNJUNCTIVE RELIEF AND DAMAGES ] I Exhibit B f ClV-‘I '10 ' Anom'évofi’w wrmoxrrAfloauev(mm. sun annumw. andcumuqames Hmmarrs'fiN 219946/1530 The Alameda Suite 215 San Jose CA 95126 TELEPHONE «0.408.345.4000 FAX N0. (opmm408-3454020 E-MAILamness(W0: moansmn (Name).Lundy Center Association summon coum' OF CALIFORNIA. comm! 0F Santa Clara STREET ADDRESS: l91 North First Street mums mnnsss:l91 North First Street crrvmn zip cooeSan Jose CA 95 l 13 amen«maDowntown Main Superior Court PLAINTIFFIPETITIONeazLundy Center Association, Inc. DEFENDANT/RESPONDENT:Shen-y Chen et al. FOR COURT USE ONLY use NUMBER: l 8CV328953REQUEST FOR DISMISSAL A conformed copy wlll not he returned by tho clerk unless a method of return ls provided with the document. class action. (Cal. Rules of Court. rules 3.760 and 3.770.) This form may not be used for dismissai of a derivative action or a class action or of any party or cause of action In a 1. TO THE CLERK: Please dlsmlss this action as follows: a. (1)D wnh prejudice (2) Without prejudice b. (1) Complaint (2)D Petition (3)D Cross-complaint filed by (name): (4)D Cross~complalnt filed by (name): (5)D Entire action of all parties and all causes of action (6)- Other (spacify):' Parties to bear their ov'vn costs and fees. on (date): on (dale): 2. (Complete In all cases except family law cases.) rt fees and costs for a party in thls case. (This Information may be obtained fromThe court Ddld dld not walve cou the clerk. If court fees and costs were waived, the declaration on the back Date:Septcmber 9. 2019 JWSJE: Emmet!............ . . . . . 5 (TYPE 0R PRINTNAME 0F MTORNBY U PAR‘rY WITHOUT ATTORNeV) only o! specified eaum of swan Niamey or ls form must b9 complete .”meWA (SIGNATURE y without altomey for: 'Il dismissal voquutod ls o! specified perils: , a °"' 5° “a“ “M “mu” ”‘° 9"“- .- PlalnlifflPetilloner D Detendanthespondentonly. or of spanned aoss-eom aln causes of adieu. or aosa-mmp alnls to beydlsmlssod. , , I Cross-Complainant 3. TO THE CLERK: Consent to the above dismissal is hereby given." Dato:Septcmber 9, 2019 ’Q774%James P. Hillman aw:onmm NAME orm AnomsvDmmmomAmmm g / (smmm .- lo. ..__ mm.m¢lnlngnx_ammn IF-mnv Lam .«eblm . nmmmflvn" . AQTDGV 0 'l'f-Wi 0}.“ attorney for: _ _. awfiiseoomlaeétunnmlqumwmcxtfgmflgmgmgaflfi PIainllff/Petltloner D Defendanthespondent °' 0" D Cross-Complalnant (To be completed by clerk) 4.D Dismissal entered as requested on (date): 5 m Dlsmlssal entered on (date): 6.D Dlsmissal not entered as requested for the follawlng reasons (specify): 7. a.D Attorney or party without anomey notified on (date): b.a Attorney or party without attorney not notified. Filing party failed lo provide as to only (name): Ea copy to be conformed D means to retum confonned copy SEP 1 3 ZUI 9 Dale: 3'5"“ by . Deputy . V Pll- 1 d 8 ‘m‘gflmmflw REQUEST FOR msmsSAL mmmfififlféfiff'mm Pm.” -‘waufiSumhm CIV-1 1O {Rem Jan. 1. 2013] CIV-‘I 1O PLAINTIFFIPETITIONER: Lundy Center Association DEFENDANTIRESPONDENT:Shmy Chen ct 3L CASE NUMBER: 18CV328953 COURT'S RECOVERY OF WAIVED COURT FEES AND COSTS If a party whose court fees and costs were initially waived has recovered or wlll recover $10,000 or more in value by way of settlement. compromise. arbitration award. mediation settlement. or other means. the court has a statutory llen on that recovery. The court may refuse to dismiss the case until the lien is satisfied. (Gov. Code. § 68637.) Declaration Concerning Waived Court Fees 1. The court waived court fees and costs In this action for (name): 2. The person named in item 1 ls (check one below}: 8-E not recovering anything of value by thls action. b.E recovering less than 510.000 In value by thls action. c.D recovering $1 0.000 or more in value by this action. (Ifitem 20 is checked, item 3 must be completed.) 3-D All court fees and court costs that were waived In this action have bean paid to the court (check one): D Yes E No I declare under penalty of perjury under the laws of the Slate of California that the Information above is true and correct. Date: y (TYPE 0R PRINT NAME 0FD ATTORNEYD Fm MAKING DECLARATION} ‘S'GNATURQ cmw m-v-mm tml REQUEST FOR DISMISSAL M =m n 12 13 14 15 16 17 as 19 20 2| 22 h‘q#wz? 24 25 26 27 28 STATE 0F CALIFORNIA ) ) ss. COUNTY 0F SANTA CLARA) I am a citizen of the United States and a citizen of the County of Santa Clara; I am over the age of eighteen years and not a party to the within action; my business address is 1530 The Alameda, Suite 215, San Jose, California 95126. On the date set forth below I served the documents described as follows: ' REQUEST FOR DISMISSAL on the following person(s) in this action by placing a true copy thereofenclosed in a sealed envelope addressed as follows: C CUBE INVESTMENTS LLC 1879 Lundy Avenue #266 San Jose, CA 95131 C CUBE INVESTMENTS LLC 362 W. Garvey Avenue Monterev Park. CA 95174 Sherry Chen : 1879 Lundy Avenue #266 San Jose, CA 95131 Ben Schnayerson, Esq. Freeman, Mathis & Gary LLP 44 Montgomery Street, Suite 3580 San Francisco, CA 94104-0709 [WV] (BY MAIL) I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail at San Jose, California. [th} (STATE) 1 declare under penalty ofpeg'ury under the laws ofthe State of California that the foregoing is true and correct. Executed on September 10, 2019 in San Jose California. A __H__ PROOF OF SERVICE Exhibit C 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 2 1 22 23 24 26 27 28 SHERRY CHEN 1879 Lundy Avenue Suite #238 San Jose, California 95131 (408) 935-8969 (408) 941-2022 Fax sherry.lundyhoa@gmail.com SHERRY CI-IEN, VS. (ENDORSED) L OCT 21 201.9 Clerk of the Court Supee.of Court of CA County of Santa Clara n SUPERIOR COURT OF THE STATE OF CALIFORNIA Plaintiff, COUNTY OF SANTA CLARA LUNDY CENTER ASSOCIATION, INC., a California mutual benefit corporation; JOSE REYNOSO individually and as a Director; LOUELLA EISCHEN, individually and as a Director; ANI-I NGUYEN, individually and as ) a Director; CHAO-CHENG YEH, individually ) and as a Director; TUNG NGUYEN, ) individually and as a Director; and DOES 1- 25, )) inclusive, ) ) Defendants. ) ) ) /// Case No.: 19CV356961 COII"PLAINT FOR: 1. NEGLIGENCE 2. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 3. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 4. DEFAMATION 5. DECLARATORY RELIEF Plaintiff, SHERRY CHEN ("CHEN"), alleges as follows: PARTIES •,1 1. Plaintiff, CHEN, is a minority owner of C CUBE INVESTMENT, LLC ("C CUBE"). C CUBE INVESTMENT, LLC is a registeted California Limited Liability Company, located in Santa Clara County. CHEN handles the routine accounting for C CUBE. COMPLAINT, Case No. - I - 10/19/2019 4:43 PM Sherry Chen Vs. Lundy Center Association, Inc., Jose Rcynoso, Louella Eischen, Anh Nguyen, Yeh, Tung Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Defendant LUNDY CENTER ASSOCIATION, INC. ("ASSOCIATION") is a non-profit, mutual benefit corporation company established in 2016 for the governance of the LUNDY PROFESSIONAL CENTER CONDOMINUM UNIT PROJECT ("PROJECT"). This PROJECT is an office building consists of forty-one office condominium units ("UNITs") located in the county of Santa Clara, California. All UNITs within the PROJECT are governed by the legally binding contracts of the recorded Declaration of Covenants, Conditions and Restrictions ("CC&Rs") and Bylaws. 3. C CUBE purchased four UNITs, #238, #266, #268 and #286 ("4-UNITs") of the PROJECT in 2011 and became a Member of the ASSOCIATION automatically. 4. The ASSOCIATION is administrated by the annually elected Directors of the Board to enforce the CC&Rs and Bylaws for the benefits of all UNIT owners, Members of the ASSOCIATION, as defined in the legally binding governing documents. Bylaws, Article 9.01: "Subject to the p;ovisions and limitations of the California Nonprofit Mutual Benefit Corporation Law and any other applicable laws, and subject to ary limitations of the Article of Incorporation or Bylaws regarci:ng actions that require approval of the Members, the Corpora-ion's activities and affairs shall be managed, and all corporate powers shall be exercised, by or under the direction of the Board of Directors." 5. Plaintiff is informed and believes, and thereon alleges that Defendant JOSE REYNOSO ("REYNOSO"), is, and at all times mentioned herein was, an individual residing in the County of Santa Clara, State of California. Plaintiff is further informed and believe and thereon allege that Defendant REYNOSO, at times herein relevant to this action, was a director and President of Defendant ASSOCIATION. Plaintiff brings suit against Defendant REYNOSO as an individual and as a Director for the ASSOCIATION. 6. Plaintiff is informed and believes, and thereon alleges that Defendant LOUELLA EISCHEN ("EISCHEN"), is, and at all times mentioned herein was, an individual residing in the County of Santa Clara, State of California. Plaintiff is further informed and believe and thereon allege that Defendant EISCHEN, at times herein relevant to this action, was a director and officer of Defendant ASSOCIATION. Plaintiff bring suit against Defendant EISCHEN as an individual and as a Director for the ASSOCIATION. COMPLAINT, Case No. - 2 - 10/19/2019 4:43 PM Sherry Chen Vs. Lundy Center Association, Inc., Jose Reynoso, I' ouelIa Eischen, Anh Nguyen, Yeh, Tung Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. Plaintiff is informed and believes, and thereon alleges that Defendant ANH NGUYEN ("ANH"), is, and at all times mentioned ;,erein was, an individual residing in the County of Santa Clara, State of California. Plaintiff is further informed and believe and thereon allege that Defendant ANH, at times herein relevant to this action, was a director and officer of Defendant ASSOCIATION. Plaintiff brings suit against Defendant ANH as an individual and as a Director for the ASSOCIATION. 8. Plaintiff is informed and believes, and , thereon alleges that Defendant CHAO- CHENG YEH ("YEH"), is, and at all times mentioned' herein was, an individual residing in the County of Santa Clara, State of California. Plaintiff is further informed and believe and thereon allege that Defendant YEH, at times herein relevant to this action, was a director of Defendant ASSOCIATION. Plaintiff brings suit against Defendant YEH as an individual and as a Director for the ASSOCIATION. 9. Plaintiff is informed and believes, and thereon alleges that Defendant TUNG NGUYEN ("TUNG"), is, and at all times mentioned herein was, an individual residing in the County of Santa Clara, State of California. Plaintiff is further informed and believe and thereon allege that Defendant TUNG, at times herein relevant to this action, was a director and officer of Defendant ASSOCIATION. Plaintiff brings suit against Defendant TUNG as an individual and as a Director for the ASSOCIATION. 10. Plaintiff is ignorant of the true names and capacities of Defendants sued herein as Does 1 through 25, inclusive and therefore sue these Defendants by such fictitious names. Plaintiff prays leave to amend this Complaint to allege their true names and capacities when the same have been ascertained. 11. Plaintiff is informed and believes, and thereon alleges that each of Defendants sued herein is responsible in some manner for the occurrences herein alleged, and that Plaintiffs' damages, as herein alleged, were proximately caused by such Defendants. /// /// COMPLAINT, Case No. - 3 - 10/19/2019 4:43 PM Sherry Chen Vs. Lundy Center Association, Inc., Jose Reynoso, Louella Eischen, Anh Nguyen, Yeh, Tung Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GENERAL ALLEGATIONS 12. Pursuant to Section 4.3 of the CC&Rs of the ASSOCIATION, C CUBE, a Member of the ASSOCIATION, is required to, pay Regular Assessments and Cost Reimbursement Assessments (utility bills) on a monthly basis, and Special Assessments when needed. These assessments levied by the ASSOCIATION are used to promote the economic interests, health, safety and welfare of all Members and to enable the ASSOCIATION to perform its obligations. 13. Plaintiff CHEN, as a minority owner of C CUBE, is assigned with the responsibility of maintaining C CUBE'S accounting records and preparing checks to pay for the assessments. At the end of December 2014, the accounts for the 4-UNITS of C CUBE, had no outstanding balance. C CUBE has always paid all monthly assessments in full and in time. 14. Around March of 2015, CHEN noticed certain irregularity of the accounts and billing errors of unexplained charges from the ASSOCIATION to the 4-UNITs. CHEN sent emails and letters every month and many certified mails for C CUBE to property managers and Defendants to request copies of invoices and ASSOCIATION records for reasons of the non- recurring charges. C CUBE never received any invoices or explanation for reasons of these charges from property managers or Defendants. 15. According to CC&Rs Exhibit A, Condominium Plan, the 4-UNITs that C CUBE owns, have the same size in a rectangular shape. CC&Rs Exhibit B shows each of the 4-UNITS has a 2.18% Interests of the ASSOCIATION. However, the ASSOCIATION walled off and uses a section of over 10% of the space inside UNIT #286. The Exhibit A, Condominium Plan, clearly specifies the dimensions and identifies the space of UNIT #286 that includes the walled off area. The dimensions of Exhibit A were used to compute the Interest percentage for the Exhibit B of the CC&Rs. 16. The ASSOCIATION apparently has knowledge of the walled off area and calculated the Regular Assessments by the actual space used by UNIT #286 (excluding the walled off area) with an adjusted lower percentage than the percentage listed in Exhibit B of the CC&Rs from 2011 to 2015. However, the Cost Reimbursement Assessment (utility bill) was billed by the percentage of UNIT #286 listed in the Exhibit B of the CC&Rs. COMPLAINT, Case No, - 4 - 10/19/2019 4:43 PM Sherry Chen Vs. Lundy Center Association, Inc., Jose Reynoso, Louella Eischen, Anh Nguyen, Yeh, Tung Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17. In December 2015, Defendants RE'YtvOSO, EISCHEN, ANH decided to bill UNIT #286 by the Interest Percentage on Exhibit 3 of the CC&Rs for both the Regular Assessments and Cost Reimbursement Assessments. Starting from January 2016, C CUBE was forced to pay assessments, under protest, for area in UNIT #286 used by the ASSOCIATION and C CUBE cannot access or use. 18. After repeated requests for resolution without any response from Defendants, CHEN invited Mr. Rob March of The Masters Group ("TMG"), property manager of 2017-2018, to UNIT #286 to see the wall-off area. Mr. March e-mailed Defendants REYNOSO, EISCHEN, ANH, YEH and TUNG ("5-DEFENDANTs") pictures of the wall-off area inside UNIT #286. The 5-DEFENDANTs never replied. C CUBE continues to pay assessments under protest for the #286 SPACE used by the ASSOCIATION. 19. After years of extremely frustrating mid unsuccessful and futile attempts to resolve the assessments and account issues, C CUBE, owner of UNIT #286, filed to the Small Claim Court of Santa Clara County for a claim iii the amount of $1,667, the 2016-2017 assessments that C CUBE paid under protest for UNIT #286 SPACE used by the ASSOCIATION. 20. Instead of resolving the known issue that the ASSOCIATION uses UNIT #286 SPACE, the 5-DEFENDENTs retaliated against CHEN by filing a civil lawsuit (Case No: 18CV328953 ) to the Santa Clara County Superior Court against "SHERRY CHEN dba C CUBE INVESTMENT, LLC" in May 2018 for Injunction Relief/Mandatory Injunction, Declaratory Relief, Nuisance, Negligence and Money Due. The Complaint alleges: "Defendant Chen is the record owners of four (4) Units at the Project" and "Defendant Chen failed to make payment for all assessments and common expenses incurred in 201 G in the amount of at least $8,783.24." CC&Rs, Article 5, Section 0. "Th..!, Board of Directors has authority to file a suit, or file a demai for arbitration, or incur attorney's fees or litigation costs, or :fuer into a contingent fee contract with an attorney, whether prrsuant to Code of Civil Procedure §383, or on behalf of Members only after getting the approval at a duly noticed and properly. held Membership meeting, of a majority vote of the Members." 21. The 5-DEFENDENTs held no such Membership meeting before or after filing the COMPLAINT. Case No. - 5 - 10/19/2019 4:43 PM Sherry Chen Vs. Lundy Center Association, Inc., Jose Reynoso, Louella Eischen, Anh Nguyen, Yeh, Tung Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 lawsuit retaliating against CHEN. The 5-DEFENDENTs did not disclose the lawsuit to the Members of the ASSOCIATION either. 22. In 2017 and 2018, the 5-DEFENDENTs refused to hold the mandatory annual Membership meeting for Election of Directors as defined in the Bylaws for the sole purpose of continuing their exclusive control of the administration of the ASSOCIATION. In 2016, 2017 and 2018, the 5-DEFENDENTs also failed to discloF financial statements, budget, operating expenses, reserve study and reserve fund balance 'land transactions explicitly defined and regulated in the Bylaws and CC&Rs. 23. In June 2018, after being served as the Sole Defendant of Case No: 18CV328953, CHEN talked to a few attorneys for possible representation. All of them explained to CHEN that the cost of defense and representation by attorneys will significantly exceed the relatively very small alleged delinquent amount easily. As a layperson without any good choice, CHEN was forced to represent and defense herself for an unverified claim on a property that CHEN is not the record owner. 24. On June 28, 2018, CHEN (Sole defendant of Case No: 18CV328953) filed the RESPONSE TO COMPLAINT. CHEN asserted that CHEN is not the record owner of the 4- UNITs of the PROJECT. CHEN is not and cannot be a Member of the ASSOCIATION. 25. On August 22, 2018, after the EX PARTE hearing for MOTION to allow CHEN (Sole defendant of Case No: 18CV328953) to file the Is( Amended Cross Complaint, outside the courtroom, CHEN informed Mr. James Hillman, attorney represented the ASSOCIATION, that CHEN is not the record owner of the 4-UNITs. 26. CHEN showed Mr. Hillman the monthly statements from the ASSOCIATION that had been all addressed to "C CUBE INVESTIVENT LLC". The Roster of Owners and Occupants distributed to the 5-DEFENDENTs by the-property manager in March 2015, clearly listed "C CUBE INVESTMENT LLC" is the owner of the 4-UNITs (#238, #266, #268 and #286). The 5-DEFENDENTs knew full well that C CUBE is the owner of the 4-UNITs all the time. 27. CHEN also showed Mr. Hillman the bank statements of C CUBE INVESTMENT LLC from 2015 to June of 2018, listing all of the payments made to the ASSOCIATION on the COMPLAINT, Case No. - 6 - . 10/19/2019 4:43 PM Sherry Chen Vs. Lundy Center Association, Inc., Jose Reynoso, I Luella Eischen, Anh Nguyen, Yeh, Tung Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 monthly basis regularly. From January 1 to April 30 cf 2018, C CUBE paid under protest for a total of $14,419.19 to the ASSOCIATION. CHEN informed Mr. Hillman that the allegation in the Complaint (Case No: 18CV328953) of "Defendant Chen failed to make payment for all assessments and common expenses incurred in 2018" is completely FALSE. 28. Furthermore, California Business and Professionals Code, BPC §17910.5: "No person shall adopt any fictitious business name that includes `Limited Liability Company' or `LLC' or `LC'. SHERRY CHEN cannot and had not dba "C CUBE INVESTMENT LLC". Nonetheless, the ASSOCIATION filed the civil lawguit against SHERRY CHEN as the sole defendant for Case No: 18CV328953 is suing the wrong party. CHEN is not the record owner of the 4-UNITs. CHEN is not a Member of the ASSOCIATION. CHEN is not obligated personally to pay ASSOCIATION any assessments or common expenses at any time. 29. Plaintiff is informed and believes, and thereon alleges that the 5-DEFENDENTs initiated the unauthorized lawsuit (Case No: 18CV37:8953) against CHEN was apparently to intimidate, harass and retaliate against CHEN personcily. CHEN answered the Complaint and provided Mr. Hillman check copies, bank statements, invoices and statements from the ASSOCIATION, County Record Office's property tax bills, etc. While all of the records and documents confirmed that CHEN is not the record owner of the 4-UNITs, the 5-DEFENDENTs continued to pursue the claim against CHEN and further demanded CHEN to pay the attorney fees incurred by Mr. Hillman for the unauthorized lawguit to cause extreme emotional stresses on CHEN. 30. CHEN (Sole Defendant of Case No:. 18CV328953) sent "REQUESTS FOR ADMISSION" and "SPECIAL INTERROGATORIES" requesting for ASSOCIATION records of the alleged delinquent amount of at least $8,783.24. Mr. Hillman produced the "Resident Transaction Report" from the ASSOCIATION. The Report listed all of the account transactions of the 4-UNITs. The Report showed there were 44 charges from the ASSOCIATION and 43 payments by C CUBE between January 1, 2018 and April 30, 2018. The difference between the "Resident Transaction Report" and C CUBE's bank statements was one payment of $354.34. C CUBE paid the charge of $354.34 by check #301: (cashed on January 30, 2018) but the ASSOCIATION did not post the credit to C CUBE's at!.count. 31. CHEN had provided C CUBE's bank satements and payment records to the then COMPLAINT, Case No. - 7 - 10/19/2019 4:43 PM Sherry Chen Vs. Lundy Center Association, Inc., Jose Reynoso, L ouella Eischen, Anh Nguyen, Yeh, Tung Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 property manager TMG for reconciliation with the ASSOCIATION's accounting records. Although the 5-DEFENDANTs rejected the request by TMG to review the records. after the civil lawsuit was filed against CHEN (Case No: 18CV328953), TMG spent its own time to reconcile the records and found many accounting errors. In addition to the cashed payment check #3105 not credited to C CUBE's account, C CUBE's check #1245 in the amount of $465.80 was cashed on December 6, 2017 but was not credited to any of the 4-UNITs. C CUBE's check #1267 in the amount of $354.34 was cashed on November 28, 2017 but was not credited to any of the 4- UNITs. TMG became the property manager in September 2017 so TMG did not have prior year records to investigate or reconcile further. 32. Above all, CHEN could not find accourt balance in any month of any year in the "Resident Transaction Report" that matches or even al roximates the alleged delinquent amount of $8,783.24 claimed in the Complaint (Case No: 18CV328953). When CHEN asked why the ASSOCIATION sued CHEN, one of the Directors stated that he had seen an Excel worksheet showing CHEN owed ASSOCIATION money, so CHEN should be sued. Another Member asked CHEN why she owed ASSOCIATION money and told CHEN that she should pay ASSOCIATION to resolve this legal matter. The laWSuit (Case No: 18CV328953) filed by the 5-DEFENDANTs against CHEN personally created a perception of CHEN shamelessly owed money intentionally and damaged CHEN's reputation and credibility. 33. After corrections of the erroneous posting of C CUBE's checks to other Members, the monthly statements of October 2018 from the ASSOCIATION showed an overpayment credit of $2,342.96 for C CUBE's accounts. TMG's s•-,:vice was subsequently terminated by the Board in October 2018. 34. For all the time, the 5-DEFENDENT,i never requested any information from CHEN or conducted DISCOVERY. On the other hz.nd, CHEN has volunteered all available information to the 5-DEFENDENTs, including bank st -;tements, payment records, and correction of errors, etc. The overpayment credit of $2,342.96 C CUBE's accounts in September 2018 proved again the allegation of "Defendant Chen failed to make payment for all assessments and common expenses incurred in 2018 in the amount of at least $8,783.24" was completely unsubstantiated and never verified. Regardless, the 5-DEFENDENTs continued the lawsuit against CHEN (Case No: 18CV328953) purposefully to torture CHEN for the extremely stressful COMPLAINT, Case No. - 8 - 10/19/2019 4:43 PM Sherry Chen Vs. Lundy Center Association, Inc., Jose Reynoso, Louella Eischen, Anh Nguyen, Yeh, Tung Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 legal process. 35. Plaintiff is informed and believes, and thereon alleges that the 5-DEFENDENTs continued the lawsuit against CHEN personally after the statements from the ASSOCIATION showing a $2,342.96 overpayment credit for C CUBE's accounts, further evidenced the malicious intent of the 5-DEFENDENTs to inflect egnotional stresses on CHEN specifically. Case No: 18CV328953 is a lawsuit filed against an individual who is not the owners of the 4- UNITs and not a Member of the ASSOCIATION. The UNTRUE and FALSE allegation is nothing but malfeasance by the Defendants. 36. CHEN (Sole Defendant of Case No: 18CV328953) filed a 2" AMENDED CROSS-COMPLAINT in December 2018. 37. FREEMAN MATHIS & GARY, LLP is the attorney firm retained by the Insurance Company to represent LUNDY CENTER ASSOCIATION INC for the Cross- Complaint. Ms. Jenny Jin of FREEMAN MATHIS & GARY, LLP filed a NOTICE OF DEMURRER on January 22, 1019, stating SHERRY CHEN is not a real party in interest and lacks standing to bring the Cross Complaint against the ASSOCIATION despite the fact that SHERRY CHEN is the sole defendant in the Complaint of Case No: 18CV328953 then. 38. Since SHERRY CHEN does not dispute the fact that she is not the record owner of the 4-UNITs, the Honorable Judge sustained the DEMURRER on July 24, 2019 on the ground that SHERRY CHEN does not have standing to pursue the Cross Complaint for Case No: 18CV328953. 39. With all the proven facts and court Order, the 5-DEFENDANTs continued the civil lawsuit (Case No: 18CV328953) against SHERRY CHEN. 40. On February 15, 2019, CHEN received an U.S. mail from Mr. Hillman for an "AMENDMENT TO COMPLAINT TO SUBSTITUTE TRUE NAME FOR FICTITIOUS NAME" for Case No: 18CV328953, adding "C CUBE INVESTMENT, LLC" as DOE 1, the r d Defendant. Importantly, "SHERRY CHEN dba C CUBE INVESTMENT, LLC" remains as the Defendant. COMPLAINT, Case No. - 9 - 10/19/2019 4:43 PM Sherry Chen Vs. Lundy Center Association, Inc., Jose Iteynoso, Louella Eischen, Anh Nguyen, Yeh, Tung Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 41. CCP §474 allows a plaintiff who is "ignorant" of Defendant's identity to designate the Defendant as DOE 1, e.g. and to amend the pleading to the true name after the true name is identified. The 5-DEFENDENTs were not ignorant. The 5-DEFENDENTs knew perfectly well the identity and the ownership of the 4-UNITs before filing the lawsuit. All invoices and statements from the ASSOCIATION were addressed to C CUBE INVESTMENT, LLC for years. The purpose of the lawsuit (Case Nol 18CV328953) naming SHERRY CHEN as the sole defendant, evidenced the only intent of the 5-DEFENDENTs to harass, intimate, bully and inflect emotional stresses in SHERRY CHEN. 42. Pursuant to CCP §472, the pleading party may amend its pleading once without leave before an Answer is filed. CHEN had filed the ANSWERS to the Complaint for Case No: 18CV328953 in June 2018. Eight (8) months later, an AMENDMENT to add DOE 1 was filed in February 2019 without leave of court. 43. The Defendants added "C CUBE INVESTMENT, LLC" as Doe 1 when "C CUBE INVESTMENT, LLC" was already listed as dba of CHEN for Case No: 18CV328953. Which "C CUBE INVESTMENT, LLC" is the true Defendant for Case No: 18CV328953? Or did the 5-DEFENDENTs try to sue the same "C CUBE INVESTMENT, LLC" multiple times? 44. CHEN is a Member of "C CUBE INVESTMENT, LLC". She prepares payment checks and keeps accounting records for C CUBE. Naming SHERRY CHEN as the sole defendant for Case No: 18CV328953 is like suing a bookkeeper in the accounting department of a company where she owns a few shares of stocks of the company. Suing SHERRY CHEN dba "C CUBE INVESTMENT, LLC" is not a Misnomer. The 5-DEFENDENTs are suing the wrong party, not simply a wrong name. Suing CHEN personally is purposefully to intimidate, harass and bully CHEN and damage CHEN by the expensive legal fees. 45. Plaintiff is informed and believes, and thereon alleges that the 5-DEFENDENTs filed civil lawsuit against CHEN personally Icnowing .perfectly well that CHEN was the wrong party and continued the lawsuit after the DEMURRER was sustained by the Court to this fact, can only be for the intent to harass, bully, intimidate, and cause emotional stresses and monetary damage on CHEN. Meanwhile, the 5-DEFENDENTs initiating an unauthorized lawsuit and incurring significant legal expenses not only violated the CC&Rs and Bylaws of the ASSOCIATION, but also breached their fiduciary duties as Directors of the Board to act in the COMPLAINT, Case No. - 10 - 10/19/2019 4:43 PM Sherry Chen Vs. Lundy Center Association, Inc., Jose Reynoso, Louella Eischen, Anh Nguyen, Yeh, Tung Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 best interest of all Members of the ASSOCIATION. 46. On November 2, 2018, CHEN being the sole defendant of Case No: 18CV328953 sent REQUEST FOR DEPOSITION to Mr. Hillman. After months of delay, a DEPOSITION of the Person Most Knowledge (PMK) of the ASSOCIATION was finally completed on May 22, 2019. 47. None of the Defendants, REYNOSO, EISCHEN, ANH, TUNG and YEH, who initiated the lawsuit, was provided as the PMK of the ASSOCIATION. Instead, a relative new Member, Mr. Sean M. O'Neill ("ONEILL") showed up as PMK of the ASSOCIATION. Mr. O'Neill became a Member of the ASSOCIATION only since December 2017. Mr. O'Neill was appointed to fill a vacancy in the Board on June 29, 2018 by Defendants, REYNOSO, EISCHEN, ANH and YEH ("4-DEFENDANTs") 48. Mr. O'Neill admitted that he had not attended any Membership meeting and had not seen any minutes. He did not know who is or was the Secretary or Chief Financial Officer of the ASSOCIATION. He did not study the government documents. He never attended any budget meeting. He was not aware of the annual disclosure and reporting requirements explicitly regulated in the CC&Rs and Bylaws. He did not know the balance of the Reserve fund. 49. The only affirmative answer by Mr. O'Neill out of the 30 questions asked in the DEPOSITION of PMK is Mr. O'Neill confirmed that :here was no Membership meeting prior to Defendants filing the civil lawsuit (Case No: 18CV328953) against CHEN personally. 50. It was apparent that the Person Most Knowledge (PMK) for the DEPOSITION was not produced in good faith. The legal process of Case No: 18CV328953 was just to torture, confuse, frustrate and damage CHEN. /// /// Alternative Dispute Resolution ( 4.DR) And Mediation 51. The 5-DEFENDENTs never offered an:: ADR to CHEN or C CUBE when CHEN repeatedly requested for information, records and clar:fication for more than three years. The 5- DEFENDENTs never sent CHEN or C CUBE demand letter with statements or invoices for the COMPLAINT. Case No. - 11 - 10/19/2019 4:43 PM Sherry Chen Vs. Lundy Center Association, Inc., Jose Reynoso, Louella Eischen, Anh Nguyen, "eh, Tung Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 alleged delinquent amount of at least $8,783.24 before or after the 5-DEFENDENTs filed the civil lawsuit in May 2018 against CHEN personally (Ci se No: 18CV328953). CC&Rs, Section 9.12: "Prior to initiating the filing or prosecution of a civil action solely for declaratory relief or injunctive relief to enforce the Project Documents, or for declaratory relief or injunctive relief to enforce the Project Documents in conjunction with a claim for monetary damages not in excess of Fifteen Thousand Dollars ($15,000), the Association and every Owner shall endeavor to submit and resolve the matter to alternative dispute resolution in compliance with the provisions of §§1354(b) (c) and (d) of the Californiil Civil Code" 52. On August 27, 2018, Mr. Hillman, emailed CHEN for possible MEDIATION. CHEN replied on August 29, 2018 that she looked forward to MEDIATION and sought help to understand the delinquent amount of at least $8,783.24 alleged in the Complaint (Case No: 18CV328953). 53. On August 30, 2018, Mr. Hillman told CI-IEN that he did not have statements for the alleged delinquent amount. Further, Mr. Hillman told CHEN that she is liable for "his" attorney fees because the ASSOCIATION will prevail at trial for Case No: 18CV328953. 54. The MEDIATION was finally held one year later at the office of Mr. Nicholas Pastore of Campbell, Warburton, Fitzsimmons, Smith, Mendell & Pastore on August 22, 2019. CHEN and several other Members who also have similar issues and concerns the governance of the ASSOCIATION participated in the MEDIATION. Again, none of Defendants REYNOSO, EISCHEN and ANH, who initiated the lawsuit, or the Person Most Knowledge of the ASSOCIATION, Mr. O'Neill was present. Defendants REYNOSO, EISCHEN and ANH, and ONEILL designated another brand-new member of the Board since May of 2019 and a Member of the ASSOCIATION since April of 2019, Ms. Wei Wong, to attend the MEDIATION. No resolution was reached through the MEDIATION. 55. On September 12, 2019, CHEN received an U.S. Mail from Mr. Hillman with a REQUEST FOR DISMISSAL against both SHERR ! CHEN dba C CUBE INVESTMENT, LLC and C CUBE INVESTMENT, LLC. The REQUEST FOR DISMISSAL was filed to Court on September 10, 2019 for Case No. 18CV328953. COMPLAINT. Case No. - 12 - 10/19/2019 4:43 PM Sherry Chen Vs. Lundy Center Association, Inc., Jose Reynoso, Louella Eischen, Anh Nguyen, Yeh, Tung Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Continuing Harassment and Retaliation During and After the Lawsuit 56. The Cost Reimbursement Assessment is.determined based on the actual usage of the electricity and LIVAC inside each UNIT. Section 6.4 of the CC&Rs specifies that each UNIT shall have a separate meter for its electricity usage inside the UNIT so Cost Reimbursement Assessment for utilities can be divided based on actual usage by the UNIT. CC&Rs, Section 6.4 Each UNIT shall have a separate meter for its electricity and gas (if any) servicing'.the UNIT and the Owner shall be responsible for payment of all charges based on said meters. Each Owner shall maintain and repair the Utilities Facilities servicing only its UNIT, exc3pt for those facilities or portions thereof maintained by utility companies or the City. Owners shall maintain the heating and air conditioning system (if any) servicing their respective UNITs, and all light fixtures and appliances therein, and pay all utility bi'ls metered therefor." 57. After C CUBE purchased the 4-UNITs; in 2011, C CUBE received the monthly statements for both Regular Assessment and Cost Reimbursement Assessments from the property manager then. The monthly statements for Cost Reimbursement Assessments include: (1) copies of PG&E bills for the PROJECT, (2) an *invoice showing the Power meter KW, Cooling KW and Heating Thermos used inside the UNIT and (3) the Common area prorata share. It was transparent, fair and each UNIT pays for what it uses. C CUBE has always paid the assessments on time and in full. At the end of year 2014, there was no delinquent amount of assessments for C CUBE's UNITs #238, #266, #268 and #286. 58. Around June of 2016, the charge of n-Hnthly Cost Reimbursement Assessments (PG&E utility bills) for UNIT #268 (one of the 4-U IITs of C CUBE) suddenly doubled and tripled without any changes in the activities. C1-iEN requested the 5-DEFENDENTs to investigate the issue. The 5-DEFENDENTs never reried to CHEN or C CUBE. C CUBE was forced to make payments of the doubled and tripled utility bills every month under protest. 59. In December of 2016, without disclosure or approval by majority of the Members, the 5-DEFENDENTs changed the calculation of allocation of the Cost Reimbursement Assessments by assigning a fixed percentage to each UNIT that favorited certain 5- COMPLAINT. Case No. - 13 - 10/19/2019 4:43 PM Sherry Chen Vs. Lundy Center Association, Inc., Jose Reynoso, Luella Eischen, Anh Nguyen, Yeh, Tung Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDENTs. The unfair and unjustified fixed percentage to each UNIT was used for allocation of PG&E utility charges to each UNIT in 2'117 and 2018. UNIT #268 was assigned with a fixed percentage at 175% scale of certain 5• DEFENDANTS who decided the fixed percentage for each UNIT. 60. Plaintiff found out after-the-fact that thy`" 5-DEFENDENTs received many similar complaints from several other Members, all having tl:\.e same problem. The 5-DEFENDENTs knew very well the irregularity and erroneous allocations of utility charges to certain UNITs. Instead of investigating the errors and fixing the jiroblems, the 5-DEFENDENTs willfully violated the legally binding governing documents, ASOCIATION's CC&Rs: "Each UNIT ply§. for what it uses and share common expenses." The 5-DEFENDENTs, without approval by majority of the Members, changed the method of allocation of the Cost Reimbursement Assessments (utility bills) by assigning a fixed and perpetual percentage to each UNIT that favorited certain 5-DEFENDENTs. The undisclosed change of the allocation method completely disregarded and violated "Each UNIT pays for what it uses" regulated in the CC&Rs. The undisclosed change of the allocation method allowed :..ertain 5-DEFENDENTs enjoy relatively low and fixed percentage utility bills in perpetuality. 61. In late 2017, CHEN prepared a graphical 3-year Trend Chart to show the significant increase of utility bills for UNIT #268. The 3-year Trend Chart also compared the disproportionally low utility bills for certain S-DEFENDENTs. When the property manager then presented the 3-year Trend Chart in the Board Meeting, the only comments from the 5- DEFENDENTs, according to the property manager then, was "Nice Chart". C CUBE was forced to continue to pay the fixed percentage utility bills at 175% scale of certain 5-DEFENDANTs every month, under protest. 62. In December of 2018, the 4-DEFENDANTs and ONEILL, without disclosure or approval by majority of the Members, changed t1 calculation of allocation of the Cost Reimbursement Assessments again, resulting in even pore unfair assessments. For the PG&E bill of month 12/17/2018 to 1/16/2019, the new method allocated a utility bill assessment of $3,006.51 to C CUBE's 4-UNITs. The 4-UNITs are 172% of the PROJECT. The assessment charged to C CUBE's 4-UNITs is 31.5% of the totc...1 PG&E bill $9,164.55 for the entire 41 UNITs and the Common Area. Again, C CUBE was forced to continue to pay under protest COMPLAINT, Case No. - 14 - 10/19/2019 4:43 PM Sherry Chen Vs. Lundy Center Association, Inc., Jose Reynoso, L puella Eischen, Anh Nguyen, Yeh, Tung Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 whatever amount billed to C CUBE by the Defendan'ts, even unfair and completely without justification. Otherwise, CHEN (Sole defendant of Case No. 18CV328953) will be found guilty for failing to pay assessments, the claim of the still pending trial lawsuit. CHEN further found that certain 5-DEFENDANTs had eye-opening low monthly assessments at a rate of as low as about thirty percent (30%) of the average billing rate of all UNITs. At the same time, C CUBE were assessed outrageously highest utility charges at a rate of as high as nine-hundred-sixty percent (960%) of the average billing rate of all UNITs. The unfair and unjustified charges are absolutely not based on the actual usage as regulated by the CC&Rs. 63. CHEN and several other Members complained and protested to the Defendants for many months, but the ridiculous billing continues. One UNIT of C CUBE in the size of 1,240 square feet was allocated utility bills of $1,929.33, $1.573.39, $1,908.76, $2,262.99, $2,143.37 month after month. At the same time, the UNIT owned by the PRESIDENT, one of the 5- DEFENDANTs, in the size of 2,053 square feet was assessed for $100.90, $338.74, $254.13, $311.30, $181.21 for the corresponding period. By these unreasonable, unrealistic assessments, the 5-DEFENDANTs continue to harass and damage C CUBE and its member CHEN. 64. Plaintiff is informed and believes, and thereon alleges that Defendants adopted the new calculation method to unfairly damage C CUBE and punish CHEN. The Defendants refused to address or remedy such actions and instead, retaliated against CHEN and other Members for raising questions of the governance of the ASSOCIATION. 65. Plaintiff is informed and believes, and thereon alleges that the Defendants hired and fired one new property manager every year since 2015, possibly to create confusion and muddy ASSOCIATION financial records. Each new property manager always started by stating that they did not receive the' financial reports from the :irior manager and could not investigate or correct prior errors, thus creating opportunity for Defei:dants to retain control, benefit themselves and attack and retaliate against CHEN or other Members who complained or questioned Defendants' decisions or actions. /// /// JURISDICTION AND VENUE 66. This Court has jurisdiction over this dispute pursuant to California Code of Civil COMPLAINT. Case No. - 15 - 10/19/2019 4:43 PM Sherry Chen Vs. Lundy Center Association, Inc., Jose Reynoso, Louel la Eischen, Anh Nguyen, Yeh, Tung Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Procedure sections 410.10 and 410.50. 67. Venue is proper in the Superior Court for the County of Santa Clara, State of California, because the incidents, actions and inactions that are the subject of this action occurred in the County of Santa Clara and, on information and belief, Defendants, and each one, are residents of the County of Santa Clara, State of California. /// /// FIRST CAUSE OF ACTION (Negligence) (Against all Defendants) 68. Plaintiff refers to the allegations contained in Paragraphs 1 through 67, and incorporates those allegations herein as though fully set forth. 69. Defendants have a duty to use reasonable care in the management of the ASSOCIATION so as not to cause unreasonable harm to Members in enforcing the CC&Rs, all as set forth hereinabove. The unauthorized litigation (Case No: 18CV328953) against Plaintiff CHEN personally with unsubstantiated allegations not only violated of CC&Rs, Section 5.2, Paragraph 0., but also incurred significant legal fees for all Members. Defendants failed their fiduciary duties and caused financial damages to all Members and their respective constituents, especially the Plaintiff CHEN. 70. Defendants and each of them have breached the CC&Rs by their actions and inactions as described herein. Further, Defendants have chosen to violate the CC&Rs despite obvious requirements and process described in the CC&Rs and Bylaws of the ASSOCIATION. Such breach is unreasonable as it has caused unnecessary harm to the Plaintiff CHEN. 71. Defendants never verified the alleged delinquent amount of at least $8,783.24 with any invoice or statement, before or after filing the civil lawsuit (Case No: 18CV328953) against Plaintiff CHEN. 72. In committing gross negligence as described herein, Defendants, and each of them, are acting with full knowledge of the consequences and damage being caused to Plaintiff CHEN in an amount to be proved in trial. COMPLAINT, Case No. - 16 - 10/19/2019 4:43 PM Sherry Chen Vs. Lundy Center Association, Inc., Jose Reynoso, Louella Eischen, Anh Nguyen, Yeh, Tung Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECOND CAUSE OF ACTION (Negligent Infliction of Erne Tonal Distress) (Against All Defendants) 73. Plaintiff refers to the allegations contained in paragraphs 1 through 72, and incorporates those allegations here as though fully set forth. 74. Plaintiff is informed and believes, and thereon alleges Defendants breached the duty of reasonable care by harassing CHEN through the unauthorized civil lawsuit (No: 18CV328953) against CHEN personally. 75. Defendants had knowledge or should have known their conduct would cause severe emotional damage to Plaintiff personally because CHEN is NOT the record owner of 4- UNITs and is not a Member of the ASSOCIATION. 76. The actions taken by Defendants are the proximate cause of Plaintiff CHEN's emotional damage and injuries. Plaintiff suffered significant emotional stress defending herself, st spent countless hours gathering information and naviga4e through the legal processes. 77. Based on these facts, Plaintiff is entitled to punitive damages as Defendants' actions were willful and malicious in nature, taken place only to punish CHEN personally. THIRD CAUSE OF ACTION (Intentional Infliction of Emotional Distress) (Against all Defendants) 78. Plaintiff refers to the allegations contained in paragraphs 1 through 77, and incorporates those allegations here as though fully set forth. 79. Defendants' conduct and actions as fat forth herein constitute an intentional infliction of emotional distress upon Plaintiff. :1. 80. The civil lawsuit (Case No: 18CV32g 33) filed against CHEN personally was to retaliate against the Small Claim Court case filet- by "C CUBE INVESTMENT LLC". Defendants never requested any information or DISCOVERY regarding their allegations while CHEN continued to volunteer information and records and had been eagerly awaiting resolution COMPLAINT. Case No. - 17 - 10/19/2019 4:43 PM Sherry Chen Vs. Lundy Center Association, Inc., Jose Reynoso, Louella Eischen, Anh Nguyen, Yeh, Tung Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of issues. The obvious intent was to harass, intimidate, bully and silence CHEN. 81. After the civil lawsuit (Case No. 18CV328953) was filed by the Defendants against the Plaintiff in May 2018, CHEN could not find proper legal representation for the claim of alleged delinquent amount $8,783.24. Any reputable attorney, in good conscience, cannot justify the anticipated high legal expenses and attorney fees for the relatively small claim in dispute. Defendants, represented by legal counsel whose attorney fees were paid by all Members of the ASSOCIATION (including C CUBE), probably knew from the start that high legal fees were great tools to torture and damage against CHEN.'` 82. By September of 2018, it was obvious that there was no claim because the alleged delinquent amount could not be verified, the accounting errors of ASSOCIATION were revealed and C CUBE's accounts even show overpayment credits. However, Defendants continued to pursue the litigation to torture CHEN for another year and damaged her for the expensive DEPOSITION and MEDIATION. 83. After the Plaintiff and several other Members pointed out that the unfair, unjustified, unexplained, fixed percentage allocation of utility billing method adopted by the Defendants, the Defendants changed the calculation method few more times. Each new method resulted in even higher assessments to C CUBE and few other Members that complained. Each new method is more ridiculous than the prior method. Different method to calculate Cost Reimbursement Assessments became a convenient tool to punish C CUBE, CHEN and any Members that complained. 84. Plaintiff is informed and believes, and thereon alleges that Defendants outrageous conduct directed at Plaintiffs is intended to cause severe emotional distress and ultimately to force CHEN to surrender to their harassment and bullying. 85. Plaintiff believes that Defendants purposefully filed the unauthorized, relatively small, unsubstantiated claim in the Superior Court, instead of the more efficient Small Claims Court is to punish CHEN from challenging Defendants' malfeasance and to damage CHEN with the expected expensive legal expenses and anxiety caused by the lawsuit (Case No: 18CV328953). 86. Based on the ongoing retaliatory act≥.on and continuous harassment, Plaintiff COMPLAINT. Case No. - 18 - 10/19/2019 4:43 PM Sherry Chen Vs. Lundy Center Association, Inc., Jose Reynoso, I ouella Eischen, Anh Nguyen, Yeh, Tung Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 believes Defendants will continue to harass and aggra-ate CHEN in order to teach her a lesson and set an example for other Members. The possiUity of continuous and baseless, unjust, unexplained, unfair, ever increasing utility bills will rx. doubt continue to damage C CUBE and to cause severe anxiety and stress on the Plaintiff. 87. Defendants' malicious and harmful actions are the proximate cause of Plaintiff's severe emotional distress as it relates to the unauthorized lawsuit (Case No: 18CV328953) against the CHEN personally, the intentional, continuous harassment and burden of legal process even after critical facts were revealed about the unsubstantiated allegation and Plaintiff's lack of standing in the matter. 88. Plaintiff is entitled to punitive damages against Defendants, and each of them, as their willful, oppressive, malicious actions are baseless and carried out for the sole purpose of intimidating, bullying, harassing and retaliating against CHEN. 4. FOURTH CAUSE OF ACTION (Defamation;! (Against all Defendants) 89. Plaintiff CHEN refers to the allegations contained in paragraphs 1 through 88, and incorporates those allegations here as though fully set forth. 90. By filing a civil lawsuit (Case No: 18CV328953) at the Superior Court of Santa Clara against the CHEN, Defendants created a permanent and digital records in the official judicial system. With.today's easy Internet access, social media and extensive search engines capabilities, the allegation of the CHEN owing money has become an easily searchable, retrievable online record by anyone, anytime on the Internet 91. Though the civil case (Case No: 18CV328953) have been dismissed, but the digital footprint of the unsubstantiated allegation i:: extensive and cannot be erased. The Plaintiff's name and reputation have been damaged and will be damaged continuously going forward. It has been extreme depressive for CHEN tc, think about the unwarranted civil lawsuit against her personally, and the fact that the case info oration is available to the public on the Internet forever. COMPLAINT, Case No. - 19 - 10/19/2019 4:43 PM Sherry Chen Vs. Lundy Center Association, Inc., Jose Reynoso, Louella Eischen, Anh Nguyen, Yeh, Tung Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 92. Plaintiff is entitled to punitive damages against Defendants, and each of them, as their willful, malicious actions have damaged her reputation built over many years of hard work and excellent credit. FIFTH CAUSE OF I.CTION (Declaratory Relief) 93. Plaintiff refers to the allegations contained in paragraphs 1 through 92, and incorporates those allegations here as though fully set fOrth. 94. An actual controversy has arisen and now exists between Plaintiff and Defendants as to whether Defendants, and each of them, have failed their fiduciary duties, violated the CC&Rs, filed an unauthorized lawsuit against a wrong party and continue to pursue the litigation after critical facts were uncovered and confirmed. A judicial declaration is necessary and appropriate at this time under the circumstances so that Plaintiff may ascertain her rights. PRAYER WHEREFORE, Plaintiff prays declaratory relief and judgment against Defendants, and each of them, as follows: A. On the First Cause of Action: (1) For a judicial declaration that Defendants have a duty to use reasonable care in the management of the ASSOCIATION so as not to cause unreasonable harm to Members, their constituents and the Plaintiff, in enforcing the CC&Rs and Bylaws of the ASSOCIATION. (2) For a judicial declaration that Defendants, and each of them, breached this duty by mismanaging the ASSOCIATION, initiated litigation without Member approval, against a wrong party, incurring attorney fees with intent to punish Plaintiff personally for her complaints. Such breach is unreasonable as it has caused unnecessary harm to the Plaintiff. B. On the Second Cause of Action: (1) For a judicial declaration that Defendants initiated a litigation without COMPLAINT. Case No. - 20 - 10/19/2019 4:43 PM Sherry Chen Vs. Lundy Center Association, Inc., Jose Reynoso, Louella Eischen, Anh Nguyen, Yeh, Tung Nguyen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Member approval in violation of CC&Rs, without a demand letter or offer of Alternative Dispute Resolution, against Plaintiff CHEN personally in retaliation to Plaintiff's challenges regarding the malfeasance of Defendants constitute negligent infliction of emotional distress specifically to the Plaintiff CHEN. C. On the Third Cause of Action (1) For a judicial declaration that Defendants' numerous actions in harassing Plaintiff CHEN and pursuing the unverified and unsubstantiated allegation, even after critical facts were uncovered regarding the ASSOCIATION accounting errors, Plaintiff CHEN's no- standing in the dispute constitute intentional infliction of emotional distress. D. On All Causes of Action: (1) For general and compensatory dcmages in a sum according to proof; (2) For an award to Plaintiff for prek„idgment and post-judgment interest; (3) For exemplary and punitive damages in a sum according to proof at the time of trial; (4) For costs of suit herein incurred; and (5) For such other and further relief as this Court may deem just and proper. DATED: October 21, 2019 SI-BERRY CHIN, pro se COMPLAINT. Case No. - 21 - 10/19/2019 4:43 PM Sherry Chcn Vs. Lundy Center Association, Inc., Jose Reynoso, Louella Eischen, Anh Nguyen, Yeh, Tung Nguyen Exhibit D 2 3 4 5 6 7 8 9 10 11 12 13 I4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Issued -:gin Submitted Matter Supe BY SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA SHERRY CHEN, Plaintiff, vs. LUNDY CENTER ASSOCIATION, INC., et al., Defendants, FIL ED JUN 1 0 2020 f the Court Santa Ctara DEPUTY or Case No. 19-CV-356961 ORDER RE: DEMURRER The demurrer 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') came on for hearing before the Honorable Thang N. Barrett on June 9, 2020, at 9:00 a.m. in Department 21.1 The matter having been submitted, the Court finds and orders as follows: 1 At times, the Court refers to some of the parties by their first names for purposes of clarity. No disrespect is intended. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.) ORDER RE: DEMURRER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 non-profit, mutual benefit corporation established for the governance of the Lundy Professional Center Condominium Unit Project (the "Project"). (Complaint, ¶ 2.) Reynosa, Eischen, Anh, Yeh, and Tung (collectively, "Individual Defendants") are directors and/or officers of Association. (Id. at'11114-9.) 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 ¶¶ 1 & 3.) Plaintiff is a minority owner of C Cube and responsible for C Cube's accounting. (Id. at ¶¶ 1, 13, & 44.) Under the terms of the CC&Rs, members of Association are required to pay regular assessments on a monthly basis and special assessments when needed. (Complaint, ¶ 12.) Beginning in 2016, Defendants adopted unfair and ever-changing methods of calculating assessments owed by Association members in violation of the CC&Rs. (Id. at 11114-18, 56-60, 62-63, & 83.) C Cube disputed the charges and eventually filed an action in small claims court. (Id. at ¶¶ 14 & 17-19.) Defendants allegedly used different methods of calculating assessments to punish C Cube and Plaintiff for complaining about the assessments. (Id. at ¶¶ 63-64, 83-84, & 86.) In mid-20I 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, ¶ 20.) Association 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. (Id. at ¶¶ 29, 34-35, 2 ORDER RE: DEMURRER I 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. (Id. at ¶¶ 20-22, 69-70, & 94.) 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, ¶¶ 23-25 & 36.) Plaintiff claimed that she was not a member of the Association as she was not an owner of the subject units, and Association violated its obligations under the CC&Rs and the Bylaws. (Ibid.) Thereafter, Association successfully demurred to the operative cross-complaint in the underlying action, arguing that Plaintiff lacked standing to bring the cross-complaint. (Complaint, ¶¶ 37-38.) Following mediation, Association dismissed the underlying action against Plaintiff in September 2019. (Complaint, ¶¶ 52-55.) Plaintiff alleges Association wrongfully continued to prosecute its underlying action long after Association was aware that its claims against her lacked merit. (Id. at ¶¶ 24-27, 29, 32, 34-35, 37-39, 50, 75, & 94.) The underlying lawsuit allegedly "created a perception of [Plaintiff] shamelessly owed money intentionally and damaged [Plaintiffs] reputation and credibility." (Id. at ¶¶ 32 & 90-91.) On October 21, 2019, Plaintiff filed this action against Defendants, alleging causes of action for: (1) negligence; (2) negligent infliction of emotional distress; (3) intentional infliction of emotional distress; (4) defamation; and (5) declaratory relief.2 On December 26, 2019, Defendants filed the instant demurrer. Plaintiff filed an opposition on May 14, 2020. On June 2, 2020, Defendants filed a reply. Discussion Individual Defendants demur to the complaint, as a whole, on the ground that there is a defect or misjoinder of parties. (Ds' Mem. Ps. & As., pp. 1:9-10 & 2:27-3:1; see Code Civ. Proc., § 430.10, subd. (d).) Defendants also demur to the fourth cause of action of the complaint 2 Notably, Plaintiff has not pleaded a cause of action for malicious prosecution. 3 ORDER RE: DEMURRER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 on the ground of failure to allege sufficient facts to constitute a cause of action. (Ds' Mem. Ps. & As., pp. 1:10-15 & 3:21-4:10; see Code Civ. Proc., § 430.10, subd, (e).) L Legal Standard The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, -[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice' [citation]." (Hilltop Properties, Inc. v. State (1965) 233 Cal.App.2d 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 challenged pleading] or the accuracy with which [the plaintiff] describes the defendant's conduct. [ ] Thus, [ ] the facts alleged in the pleading are deemed to be true, however improbable they may be." (Align Technology, Inc. v. Tran (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] contentions, deductions or conclusions of law or fact." (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120.) II. Defect or Misjoinder of Parties Individual Defendants demur to the complaint on the ground that there is a defect or misjoinder of parties, arguing that they are not proper parties because there are no allegations of wrongdoing by them as individuals outside of their capacity as board members.3 (Ds' Mem. Ps. & As., pp. 1:6-10 & 2:27-3:20.) 3 For the first time in reply, Individual Defendants also raise arguments based on the business judgment rule. This additional point should have been made in their moving papers, and the attempt to raise the point for the first time in reply is improper as Plaintiff did not have the opportunity to respond to the new arguments in her opposition. (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [points raised for first time in a reply brief will ordinarily be disregarded because other party is deprived of the opportunity to counter the argument]; see also In re Tiffany Y. (1990) 223 Cal.App.3d 298, 302-303; REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.) Thus, the Court declines to consider this additional point. 4 ORDER RE: DEMURRER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 21 23 24 25 26 27 28 Demurrers on this ground lie only where it appears from the face of the complaint, or matters judicially noticed, that: (1) some third person is a "necessary" or "indispensable" party to the action and, therefore, must be joined before the action may proceed; (2) the plaintiffs lack sufficient unity of interest; or (3) there is no common question of law or fact as to the defendants. (Code Civ. Proc., §§ 378-379 & 389; Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2019) ¶¶ 2:151, 2:207, & 7:78-7:81.) Here, Individual Defendants fail to establish that there is a defect or misjoinder of parties. Individual Defendants do not assert that Plaintiff failed to join a "necessary". or "indispensable" third party to the action. Additionally, Individual Defendants do not contend that the plaintiffs lack sufficient unity of interest; such an argument would not hold as there is only one plaintiff in this case. Lastly, Individual Defendants do not assert that there is no common question of law or fact as to Defendants. Instead, Individual Defendants argue Plaintiff has not alleged facts showing that they engaged in wrongdoing outside of their capacity as directors of Association. This argument is more properly characterized as a failure to state a claim against them rather than a defect or misjoinder of parties. Individual Defendants did not demur to the complaint, as a whole, on the ground of failure to allege sufficient facts to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).) Accordingly, Individual Defendants' demurrer to the complaint, in its entirety, on the ground that there is a defect or misjoinder of parties is OVERRULED. III. Failure to Allege Sufficient Facts to State a Claim Defendants demur to the fourth cause of action for defamation on the ground of failure to allege sufficient facts to constitute a cause of action, arguing that the claim is barred by the litigation privilege. (Ds' Mem. Ps. & As., pp. 1:10-15 & 3:21-4:10.) "The litigation privilege is codified in Civil Code section 47 ...: la] privileged publication or broadcast is one made ... [i]n any ... judicial proceeding ....' [Citation.]" (Rusheen v. Cohen (2006) 37 Ca1.4th 1048, 1057 (Rusheen).) "The privilege recognized in [that statute] derives from common law principles establishing a defense to the tort of defamation. [Citation.]" (Ibid.) 5 ORDER RE: DEMURRER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "Although originally enacted with reference to defamation [citation], the privilege is now held applicable to any communication, whether or not it amounts to a publication [citations], and all torts except malicious prosecution. [Citations.] ... [I] The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]" [Citation.]. Thus, "communications with 'some relation' to judicial proceedings" are "absolutely immune from tort Iiability" by the litigation privilege [citation]. (Rusheen, supra, 37 Ca1.4th at p. 1057.) The purpose of the privilege is to "afford litigants free access to the courts without fear of being harassed by later derivative tort actions; encourage open channels of communication and zealous advocacy; promote complete and 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 fourth cause of action for defamation is the filing of the underlying lawsuit by Association. (Complaint,') 32 & 90-91.) Specifically, Plaintiff asserts that the allegations in the underlying lawsuit "created a perception of [Plaintiff] shamelessly owed money intentionally and damaged [Plaintiffs] reputation and credibility." (Ibid.) A claim for relief filed in court-such as the underlying lawsuit-is "indisputably a statement or writing made before a judicial proceeding." (Navellier v. Sletten (2002) 29 Cal.4th 82, 90; see also Briggs v. Eden Council for Hope & Opportunity (1999) 19 Ca1.4th 1106, 1115.) Furthermore, the underlying lawsuit was a statement made by a litigant-Association- to achieve the objects of the litigation, and that had some connection or logical relation to the underlying action. Thus, the fourth cause of action is barred by the litigation privilege. Accordingly, Defendants' demurrer to the fourth cause of action on the ground of failure to allege sufficient facts to constitute a cause of action is SUSTAINED, without leave to amend. (See Buena Vista Mines, Inc. v. Industrial Indemnity Co. (2001) 87 Cal.App.4th 482, 48 [the burden is on the plaintiff to demonstrate the manner in which the complaint might be amended]; 6 ORDER RE: DEMURRER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 see also Goodman V. Kennedy (1976) 18 Ca1.3d 335, 349 [a court may sustain a demurrer without leave to amend if a plaintiff fails to show there is any reasonable possibility of curing the defect in the pleading through amendment].) June 10, 2020 Wm Mang Pt. ft irrtl Thang N. Barrett Judge of the Superior Court 7 ORDER RE: DEMURRER SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 1911\11:,RTH FIRST STREET SAN JOSE, C.ALIFC RN1A 95113 CIVIL DIVISION Sherry Chen 1879 Lundy Avenue Suite #238 SAN JOSE CA 95131 RE: Sherry Chen vs Lundy Center Association, Inc et al Case Number: 19CV356961 PROOF OF SERVICE Order on Submitted Matter was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the American with Disabilities Act, please contact the Court Administrator's office at (408) 882-2700, or use the Court's TDD line (408) 882-2690 or the VoicefTOD California Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MAIL: I declare that I served this notice by enclosing a true copy in a sealed envelope, addressed to each person whose name is shown below, and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose, CA on June 10, 2020. CLERK OF THE COURT, by Mai Jansson, Deputy cc: Benjamin J Schnayerson Freeman Mathis & Gary LLP 44 Montgomery St Ste 3580 SAN FRANCISCO CA 94104 CW-9027 REV 12/08/16 PROOF OF SERVICE Exhibit E 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHERRY CHEN CHIA-CHIEH CHEN 1879 Lundy Avenue Suite #238 San Jose, California 95 1 31 (408) 935-8969 (408) 941-2022 Fax Sherry.1undyhoa@gmail.com cc.1undyhoa@gmai1.com SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA SHERRY CHEN, CHIA-CHIEH CHEN Plaintiff, VS. LUNDY CENTER ASSOCIATION, INC., a California mutual benefit corporation; JOSE REYNOSO individually and as a Director; LOUELLA EISCHEN, individually and as a Director; ANH NGUYEN, individually and as a Director; CHAO-CHENG YEH, individually and as a Director; TUNG NGUYEN, individually and as a Director; and DOES 1-25, inclusive, Defendants. [\Jr-t 99:55“ r-Ar-A E9990.“ /// /// Case No.: 19CV356961 FIRST AMENDED COMPLAINT MALICIOUS PROSECUTION INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS NEGLIGENCE PRIVATE NUISANCE BATTERY INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS NEGLIGENCE PRIVATE NUISANCE BATTERY TREEPASS TO LAND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Plaintiffs, SHERRY CHEN (“Sherry”) and CHIA-CHIEH CHEN a.k.a. C.C. CHEN (“CC CHEN”), file this First Amended Complaint and alleges as follows: First Amended Complaint, case no. 19CV356961 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION 1. Plaintiffs reside in Santa Clara County, California. 2. C CUBE INVESTMENT, LLC (“C CUBE”) is a registered California Limited Liability Company, located in Santa Clara County. Plaintiffs are minority owners 0fC CUBE. 3. LUNDY PROFESSIONAL CENTER CONDOMINIUM ASSOCIATION, INC. (Corporate Number C28795 10) was established 0n May 15, 2006, t0 manage the Common-Interest-Development project. It was changed to LUNDY CENTER ASSOCIATION, INC. (Corporate Number C3386537) 0n June 17, 201 1. 4. Defendant LUNDY CENTER ASSOCIATION, INC. (“ASSOCIATION” 0r “LCA”) is a non-profit, mutual benefit corporation company established for the governance 0f the LUNDY PROFESSIONAL CENTER CONDOMINUM UNIT PROJECT (“PROJECT”). This PROJECT is a 2-story office building consists 0f forty- one (41) office condominium units (“UNITS”). It is located at 1879 Lundy Ave, San Jose, Santa Clara County, California. 5. A11 UNITS Within the PROJECT are governed by the legally binding contracts of the recorded Declaration 0f Covenants, Conditions and Restrictions (“CC&RS”) and Bylaws. The ASSOCIATION is administrated by the annually elected Directors of the Board. 6. C CUBE purchased four UNITS, #238, #266, #268 and #286 (“4-UNITs”) of the PROJECT in 2011 and thus became a member of the ASSOCIATION automatically. The recorded Condominium Plan, Exhibit A of the CC&Rs shows the dimensions 0f all UNITS. C CUBE’S 4-UNITS are the same size. Each has 25.40’ by 39.09’ inside-suite space in a rectangular shape. CC&Rs, Exhibit B, Common Area Assessment Allocations and Interests in the Common Area, shows 2. 18% for each 0f the 4-UNITs. 7. Sherry and CC CHEN’s offices were inside UNIT-238. Both offices had doors and locks. Sherry and CC CHEN had the exclusive possessory rights to their offices in UNIT-238. Sherry handled the accounting and rental of the 4-UNITS for C CUBE. CC CHEN handled other managerial and operational tasks for C CUBE First Amended Complaint, case no. 19CV356961 2 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 regarding the PROJECT. Because Directors had the power and responsibilities regarding the building, a special relationship was established. The Plaintiffs had n0 choice but t0 comply to andLaw the superior authorities of the Directors for any business matters With the ASSOCIATION. Due t0 the special relationship, individual Defendants had not only a general duty 0f care as reasonable persons, but also the affirmative obligation as a reasonable Director of Board under the similar circumstances. Bvlaws, Article 9.01: “Subject t0 the provisions and limitations 0f the California Nonprofit Mutual Benefit Corporation Law and any other applicable laws, and subject t0 any limitations offhe Article 0f Incorporation 0r Bylaws regarding actions that require approval 0f the Members, the Corporation’s activities and aflairs Shall be managed, and all corporate powers Shall be exercised, by 0r under the direction offhe Board ofDirectors. ” PARTIES 8. Plaintiffs are informed and believe, and thereon allege that Defendant JOSE REYNOSO (“REYNOSO”), is, and at all times mentioned herein was, an individual residing in the County 0f Santa Clara, State 0f California. Plaintiffs are further informed and believe and thereon allege that Defendant REYNOSO, at times herein relevant to this action, was a director and President 0f Defendant ASSOCIATION. Plaintiff brings suit against Defendant REYNOSO as an individual and as a Director for the ASSOCIATION. 9. Plaintiffs are informed and believe, and thereon allege that Defendant LOUELLA EISCHEN (“EISCHEN”), is, and at all times mentioned herein was, an individual residing in the County 0f Santa Clara, State of California. Plaintiffs are further informed and believe and thereon allege that Defendant EISCHEN, at times herein relevant to this action, was a director and officer of Defendant ASSOCIATION. Plaintiff brings suit against Defendant EISCHEN as an individual and as a Director for the ASSOCIATION. 10. Plaintiffs are informed and believe, and thereon allege that Defendant ANH NGUYEN (“ANH”), is, and at all times mentioned herein was, an individual residing in the County of Santa Clara, State of California. Plaintiffs are further informed and believe First Amended Complaint, case no. 19CV356961 3 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and thereon allege that Defendant ANH, at times herein relevant t0 this action, was a director and officer 0f Defendant ASSOCIATION. Plaintiff brings suit against Defendant ANH as an individual and as a Director for the ASSOCIATION. 11. Plaintiffs are informed and believe, and thereon allege that Defendant CHAO-CHENG YEH (“YEH”), is, and at all times mentioned herein was, an individual residing in the County 0f Santa Clara, State of California. Plaintiffs are further informed and believe and thereon allege that Defendant YEH, at times herein relevant to this action, was a director of Defendant ASSOCIATION. Plaintiff brings suit against Defendant YEH as an individual and as a Director for the ASSOCIATION. 12. Plaintiffs are informed and believe, and thereon allege that Defendant TUNG NGUYEN (“TUNG”), is, and at all times mentioned herein was, an individual residing in the County 0f Santa Clara, State 0f California. Plaintiffs are further informed and believe and thereon allege that Defendant TUNG, at times herein relevant t0 this action, was a director and officer of Defendant ASSOCIATION. Plaintiff brings suit against Defendant TUNG as an individual and as a Director for the ASSOCIATION. 13. Plaintiffs are ignorant 0f the true names and capacities 0f Defendants sued herein as Does 1 through 25, inclusive and therefore sue these Defendants by such fictitious names. Plaintiffs pray leave t0 amend this Complaint t0 allege their true names and capacities when the same have been ascertained. 14. Plaintiffs are informed and believe, and thereon allege that each 0f Defendants sued herein is responsible in some manner for the occurrences herein alleged, and that Plaintiffs’ damages, as herein alleged, were proximately caused by such Defendants. FACTUAL ALLEGATIONS I. DEFENDANTS FILED A MERITLESS AND GROUNDLESS LAWSUIT AGAINST PLAINTIFF SHERRY CHEN 15. On May 25, 2018, at the direction of the individual Defendants, the ASSOCIATION filed a civil lawsuit, case no. 18CV328953, Lundy Center Association First Amended Complaint, case no. 19CV356961 4 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Inc. v. Sherry Chen dba C Cube Investment LLC, for Injunction Relief/Mandatory Injunction, Declaratory Relief, Nuisance, Negligence, and Money Due, at Superior Court 0f California, County 0f Santa Clara (“Subject Prior Lawsuit”). The lawsuit alleged: “. .. Defendant Chen has failed t0 make payment for a_ll assessments and common expenses incurred in 2018 in the amount of at least $8,783.24.” (See Compl. 1] 16.) (Exhibit 1) 16. “T0 establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by 0r at the direction of the defendant and was pursued t0 a legal terminationm1 plaintiff’ s, favor; (2) was brought Without probable cause; and (3) was initiated With m.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50 [1 18 Cal.Rptr. 184, 529 P.2d 608], internal citations omitted.) 17. “[M]alice can be inferred When a party continues t0 prosecute an action after becoming aware that the action lacks probable cause.” (Cuevas-Martinez, supra, 35 Cal.App.5th at p. 1122, original italics.) A. Sherrv Chen Was Not the Title Owner 0f the Subiect Propertv 18. C CUBE became a member 0f the ASSOCIATION upon the purchase 0f the 4-UNITs. As a member, C CUBE had the obligation t0 share the common expenses according to the percentage 0n the Exhibit B of the CC&Rs (See fl 6.) The percentage 0n Exhibit B was based on the Condominium Plan, Exhibit A of the CC&Rs. The ASSOICATION sent invoices and statements to C CUBE after it became a member. C CUBE had made payments for each invoice that C CUBE received 0n the monthly basis generally. The ASSOCIATION and the individual Defendants knew With certainty that C CUBE was the legal owner 0f the 4-UNITS and thus C CUBE was a member of the ASSOCIATION. 19. California Business and Professions Code section 17910.5: (b) N0 person shall adopt any fictitious business name that includes “Limited Liability Company” or “LLC” or “LC” unless that person is a limited liability company organized pursuant to the laws 0f this state 0r some other jurisdiction. First Amended Complaint, case no. 19CV356961 5 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20. The individual Defendants knew that Sherry Chenm do-business-as (‘dba”) “C CUBE INVESTMENT LLC” and Sherry Chen was not the legal owner 0f the 4-UNITs. Sherry Chen was one minority member 0f C CUBE, and she handled the invoices and rental 0f the 4-UNITs for C CUBE. To name Sherry Chen as a defendant in this civil complaint was like suing a bookkeeper in the accounting department 0f a company Who happened t0 own a few shares 0f stocks. 21. C CUBE had several disputes With the ASSOCIATION from 2016. C CUBE exhausted all possible efforts t0 try to amicably resolve the disputes in several years. On March 3, 2018, C CUBE filed a lawsuit at the Santa Clara Small Claims Court, case n0: 18$C075839, C Cube Investment LLC v. Lundy Center Association, Inc. The Small Claims case was regarding the ASSOCIATION using C CUBE’s space inside UNIT-286 Without C CUBE’s consent. C CUBE was forced t0 pay the regular and cost reimbursement assessment for the space used by the ASSOCIATION. The issue was still active in the middle 0f the legal process. C CUBE and other 20% members joined together to enforce ASSOCIATION’S Violations of the legally binding CC&RS and Bylaws. This Small Claims case was irrelevant t0 this subject prior lawsuit ofLundy Association Center inc. v. Sherry Chen. However, the Small Claims case explicitly evidenced that the individual Defendants knew with certainty that C CUBE was the legal owner of the 4-UNITs. C CUBE was the member 0f the ASSOCIATION instead 0f Sherry Chen. 22. On August 22, 2018, Sherry presented 4-UNITs’ Secured Property tax bills from Santa Clara County t0 Mr. James Hillman, the attorney represented the ASSOCIATIION for the subject prior lawsuit. County’s original Secured Property tax bills showed C CUBE was the Title Owner of the 4-UNITs. 23. The ASSOCIATION and the individual Defendants insisted 0n continuing the subject prior lawsuit. The individual Defendants not only knew C CUBE was the owner of the 4-UNITs for all this time, but also now were provided With County’s official records. The subject prior lawsuit had no claim against Sherry Chen personally. The individual Defendants’ continue of the meritless lawsuit evidenced their malice. (Id. 1] 17.) First Amended Complaint, case no. 19CV356961 6 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24. On September 4, 2018, the hearing was held for the Small Claims case 18$C075839, C CUBE v. Lundy (See 1] 21.) that the ASSOCIATION used C CUBE UNIT-286 space Without consent. Defendant EISCHIN appeared to court 0n behalf of the ASSOCIATION and CC CHEN appeared t0 court representing C CUBE. Defendant EISCHEN had firsthand knowledge that C CUBE was the owner of the 4-UNITs and only C CUBE had the rights and duties as a member 0f the ASSOCIATION. 25. The individual Defendants did not name CC CHEN or C CUBE as defendant for the subject prior lawsuit for Violations 0fCC&Rs and the alleged delinquent $8,783.24 assessments. The individual Defendants knew With certainty that Sherry Chen was not the owner of the 4-UNITs. However, the individual Defendants intentionally continued the meritless subject prior lawsuit frivolously against Sherry Chen. The act again evidenced the malice 0f the individual Defendants. (Id. 1] 17.) B. Individual Defendants Did Not Permit Propertv manager t0 Investigate the Missing Credits 26. For the many years that C CUBE had been a member 0f the ASSOCIATION, occasionally, there were billing errors. For example, on December 5, 2014, a line charge 0f “HVAC-Johnson C0” 0f $5 11 was billed t0 C CUBE. After Sherry asked for copy ofwork order and clarification in order to forward to tenants, the property manager found it was a work ordered for a different suite not owned by C CUBE. As a result, the property manager simply corrected the administrative error by removing the charge of $511 0n January 20, 2015. Another example, there was a line charge on July 6, 2015 0f “Bill Back” 0f $467.52. The same, Sherry asked for copy 0f invoice and explanation of the charge. Once again, the property manager found the expense was for a different suite not owned by C CUBE and removed the erroneous charge. Generally, Sherry would request for clarification and copy of invoice or work order for the non- recurring or irregular charges. The property manager would correct immediately if errors were found. 27. In July 2015, one suite owner had the duplicate charge issue and seek help. After verified the duplicate charge With the prior property manager, Sherry discussed and First Amended Complaint, case no. 19CV356961 7 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 requested Defendants REYNOSO and EISCHEN t0 approve the correction of error. But the individual Defendants refused t0 correct the duplicate charge error and forced the suite owner to pay during the foreclosure process. The suite owner paid the duplicate charge and then filed a Small Claims case n0. 18$C075772 against Lundy Center Association, Inc. on September 20, 2018. The ASSOCIATION settled the case by paying back the erroneous duplicate charge $4,461 .24 t0 the suite owner before the hearing of the case. 28. Because Sherry challenged and disagreed With the individual Defendants for not correcting the verified duplicate bookkeeping errors, the individual Defendants refused to make any corrections since then for any obvious accounting errors for C CUBE’S 4-UNITs. As a result, Sherry had n0 choice but t0 make payments as demanded. Sherry felt helplessness, frustration, anger, despair and suffered significant and continuous distress month after month. 29. There were 4 items 0f “Bill Back” of $603.53, $564.77, $555.89 and $589.19 in the sum 0f $2,3 13.38 billed to C CUBE’s 4-UNITS Without any invoices t0 explain the charges. Sherry requested the ASSOCIATION and individual Defendants repeatedly 0n the monthly basis begging for the invoices to provide to tenants. The ASSOCIATION never provided copies 0f the invoices 0r any explanations 0f the charges $2,3 1 3 .3 8. 30. On September 2 1 , 2018, Mr. Hillman confirmed that the unknown $2,3 13.38 charges were n_ot Special Assessments in the Responses to Special Interrogatory n0. 4: “Plaintiff understands and believes that there wasQ special assessment levied in 2015” (See Special Interrog. p24 1-2.) 31. The dispute of the unknown “Bill Back” of $2,3 13.38 remained outstanding as 0f today. Because the Defendants had the authority and exclusive control of all ASSOCIATION records, Sherry had n0 alternative but t0m Defendants’ action and control. 32. From 2011 t0 2016, C CUBE received copies of the utility bills for each suite clearly listing the electricity kilowatt usage readings for each category for the specific billing period. Starting from the 2nd half 0f 2016, the ASSOCIATION refused t0 First Amended Complaint, case no. 19CV356961 8 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 provide utility bills With kilowatt usage reading information and simply demanded C CUBE t0 pay for an arbitrary amount Without any explanation. If C CUBE refused t0 pay, according t0 the CC&RS, it would be a Violation for C CUBE as a member and the ASSOCIATION had the rights t0 send C CUBE for collection and/or foreclosure 0f 4- UNITS. 33. An ordinary person would agree it was reasonable that a service provider would provide an invoice, a statement 0f account or a balance statement listing the charges. It was not the standard business practice t0 order the client to pay for an arbitrary amount Without any explanation 0r supportive information. If the client raised questions, then sued the client right away. That was What the ASSOCIATION did against Sherry at the direction 0f the individual Defendants. There was n0 written demand for payment, offer 0f Alternative Dispute Resolution, or even a meet and confer. 34. Sherry must provide invoices t0 C CUBE’S tenants to collect payments. Sherry requested invoices detailing the charges from the ASSOCIATION. After several “Paid Under Protest” payments, the ASSOCIATION sent a letter 0n April 26, 2017 and demanded $15 fee for any request by C CUBE for a copy 0f the utility bill. An ordinary person would agree it was outrageous that a service provider charged his clients fees for a copy 0f the invoice for his service. 35. Desperately and Without alternative, Sherry agreed to pay the $15 fee to get the copy of the invoice for tenants. The ASSOCIATION subsequently billed $15 to C CUBE. However, C CUBE still did not receive the utility bill. Sherry wrote to inquire the utility bill the following month. The ASSOCIATION removed the charge 0f $15 and the property manager returned her letter With a handwritten note: “N0. This is not an error. Board has instructed us t0 charge the owner, but there is no documentation. We had t0 remove the $15 charge for this reason.” 36. The ASSOCIATION never provided copy of utility bills for the 2nd half 0f 2016, 2017 and 2018. Sherry continued to prepare checks “Paid Under Protest” not knowing what the charges were for. 37. On June 9, 2017, Sherry mailed a payment to the ASSOCIATION check n0. 1230 in the amount 0f $1,417.36. The ASSOCIATION received the check and First Amended Complaint, case no. 19CV356961 9 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 posted the payment credit on June 20, 2017. For unknown reason, the payment credit was removed by an item 0f “Payment Adjust” With a note “Check sent t0 owner”. At the same time, the ASSOCIATION cashed the 2nd check no. 1231 in the amount 0f $1,522.35 for the utility charges. Sherry never received the alleged “sent to owner” check n0. 1230 or any explanation of the reason to reject the check. 38. In October 2017, the ASSOCIATION had a new property manager, the Master Group. Mr. Rob March was the owner of the company. Sherry asked Mr. March to 100k for check no. 1230 and provide the reason to rej ect and return the check. Mr. March confirmed he did not have it. Check n0. 1230 simply disappeared forever, and no one knew the reason Why it was rej ected. 39. In December 2017, Sherry could not understand the past due balance was more than the being disputed unknown “bill back” of $2,3 13.38. Sherry provided Mr. March copies ofC CUBE’s bank statements from January 1, 2017, clearly itemized each payment on the bank statements, e.g., January 2017 Assessment, 7/17/17 to 8/16/17 PG&E, etc. 40. The ASSOCIATION had a Board meeting in the end 0f January. Mr. March brought up the issue 0f checks cashed but failed to credit to C CUBE’s account. Mr. March requested permission from the individual Defendants t0 review and reconcile C CUBE’s accounts. The next morning, Mr. March informed Sherry that he was surprised that the individual Defendants refused his request t0 review and reconcile C CUBE’s account. Because the individual Defendants did not permit him to review the accounts, he was sorry that he was unable to help with the missing credit issue. 41. An ordinary person would believe it was the standard business practice and reasonable approach t0 allow the property manager t0 review and reconcile the payments under the similar circumstances. The individual Defendants knew with substantial certainty that there were payment checks cashed but failed to credit to C CUBE’s account. The individual Defendants did not allow the property manager t0 review the accounting record, and at the same time, Defendants filed the subject prior lawsuit against Sherry for a “fabricated” past-due assessment. The intent of Defendants and the purpose 0f the subject prior lawsuit was t0 retaliate and punish Sherry for challenging 0r First Amended Complaint, case no. 19CV356961 10 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 raising questions in Defendants’ decisions “at their discretion”. (See 1H] 27-28.) C. The Alleged Delinquent Amount 0f $8,783.24 Was Fabricated and Never Verified 42. Sherry had n0 choice but t0 rely 0n Defendants t0 provide details 0f the alleged non-payment in the subject prior lawsuit. 43. The subject prior lawsuit alleged that “Chen” failed t0 make payment for a_ll assessments and common expenses incurred in 2018 in the amount 0f at least $8,783.24. (See Compl. 1] 16.) 44. The alleged delinquent amount was never verified by the ASSOCAITION or any of its agents, employees, contractors, officers, members, directors, owners, tenants, attorneys, representatives and all others acting for it and/or 0n its behalf. 45. On August 22, 201 8, outside of the Courthouse, Sherry showed Mr. Hillman, C CUBE’s bank statements from 2015 to June 0f 2018. The bank statements listed a_ll payments made by C CUBE to the ASSOCIATION every month. The bank statements showed that C CUBE paid $14,419.19 to the ASSOCIATION from January 1, 2018, t0 April 30, 201 8, exactly as demanded by the ASSOCIATION. 46. The allegation in the complaint of “failing t0 make payment for a_ll assessments and common expenses incurred in 2018” was false, untrue, and groundless. The subject prior lawsuit was intended t0 shame and discredit Sherry t0 other members that Sherry did not pay “her” share of the assessments and utility bills, and owed money to the ASSOCIATION. 47. On October 5, 2018, as part 0f the Response to the Discovery, Mr. Hillman emailed Sherry four (4) pages 0f “Resident Transaction Report” marked as LCA000145- 148. The Report included columns 0f Date, Description, Charge Amount, Payment/Credit and Balance. The Report showed 44 charges and 43 payments between January 1, 2018, and April 30, 2018, before the subject prior lawsuit was filed against Sherry. Column “Payment/Credit” of the report showed C CUBE paid $14,064.85 from January 1, 2018, to April 30, 2018. 48. The one missing payment was actually paid by Sherry but not credited correctly t0 C CUBE’S account. C CUBE’S bank statements showed C CUBE’s check First Amended Complaint, case no. 19CV356961 1 1 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 n0. 3015 was cashed by the ASSOCIATION on January 30, 201 8 but was not credited to C CUBE’S account. (See W 39-41.) Instead, it was credited t0 another member’s account. 49. An ordinary and reasonable person could easily see from the “Resident Transaction Report” that the alleged delinquent amount of $8,783.24 was false, untrue, and baseless. The allegation was a lie that “Defendant ‘Chen’ failed to make payment for a_ll assessments and common expenses incurred in 2018 ...” (See Compl. 1] 16.) 50. Page LCA000145-148 of the “Resident Transaction Report” provided by Mr. Hillman 0n October 5, 201 8, Column “Balance” showing the balance for all 4 UNITS was $4 526.40 0n April 30, 2018 before Defendants filed the lawsuit against Sherry. The balance included the known disputed “Bill Back” 0f $2,313.38 (See 1] 29.), the known disappeared check n0. 1230 of $1,417.36 (See 1H] 37-38.), and the known payment checks cashed but failed t0 credit t0 C CUBE (See 1H] 39-41 .). 5 1. In addition, the “Resident Transaction Report” also included the current charge 0f $2 526.68 for May 0f 2018 that would not be late until May 30, 2018. 52. The Balance 0n ASSOCIATION’S May 15, 2018 Monthly Statements or the RESPONSE provided by Mr. Hillman simply did not add up to or even approximate the alleged delinquent amount 0f at least $8,783.23 for any month 0f any year. 53. Mr. March, the property manager, confirmed that he provided the same account statements t0 the individual Defendants. The individual Defendants knew With certainty that the accusation 0f alleged delinquent $8,783.23 was false, untrue, and groundless. The intent of the malicious meritless lawsuit was to harass and bully Sherry. The intent was never t0 recover the made-up delinquent $8,783.23 assessments. 54. The ASSOCIATION or the individual Defendants had never produced or provided any ASSOCIATION records, statements, invoices for the alleged delinquent amount at least $8,783.23 before the subject prior lawsuit was filed or during the discovery. 55. After Sherry presented Mr. Hillman C CUBE’s bank statements. Sherry continued t0 request Mr. Hillman to produce records t0 support the claim 0f the alleged delinquent $8,783.23. On August 30, 2018, Mr. Hillman told Sherry that he did not have First Amended Complaint, case no. 19CV356961 12 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 statements 0f the alleged delinquent amount of at least $8,783.24. The individual Defendants had never provided him any statement supporting the alleged delinquent amount of at least $8,783.24. The lawsuit against Sherry was completely baseless. D. C CUBE’s Pavment Checks Were Erroneouslv Posted and Credited t0 Other Members 56. Discussed above (See W 39-41.) Sherry provided copies 0f bank statements t0 Mr. March and requested t0 reconcile C CUBE’s account. Mr. Rob March informed Sherry that in the January Board meeting, the Boardm his request t0 investigate the missing payment credits. 57. Three months after the individual Defendants filed the subject prior lawsuit against Sherry, Mr. Rob March decided to work at his own time and expenses to investigate the issues that he believed a professional property manager should do. On August 29, 2018, Mr. March instructed HOA Accounting Services to examine and reconcile C CUBE’s bank statements to the ASSOCIATION’S accounting records for C CUBE’s 4-UNITs. 58. HOA Accounting Services identified several checks paid by C CUBE that were erroneously posted t0 other member’s accounts in 2017 and 2018. HOA Accounting Services verified the payments and corrected the errors in August and September of 2018. 59. On August 3 1, 2018, HOA Accounting Services corrected the 1“ error 0f C CUBE’S check no. 3015 in the amount 0f $354.34. The check was cashed 0n January 29, 2018 but was posted t0 a suite not owned by C CUBE. 60. On September 7, 2018, HOA Accounting Services corrected the 2nd error of C CUBE’S check n0. 1245 in the amount 0f $465.80. The check was cashed 0n December 6, 2017 but was again posted t0 a suite not owned by C CUBE. 61. On September 11, 2018, HOA Accounting Services corrected the 3rd error of C CUBE’s check no. 1267 in the amount 0f $354.34. The check was cashed 0n November 28, 2017, but was again posted to a suite not owned by C CUBE. 62. HOA Accounting Services made 7 corrections in total. After corrections 0f First Amended Complaint, case no. 19CV356961 l3 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the erroneous postings ofC CUBE’s checks t0 the wrong accounts, the monthly statements 0f October 2018 from the ASSOCIATION showed an overpayment credit 0f $2,342.96. 63. Mr. March informed Sherry that he did not have the records prior t0 October 2017 before he became the property manager of the ASSOCIATION. The Master Group was unable t0 examine or investigate other accounting/bookkeeping issues and utility billing errors. Subsequently, TMG’s service as property manager was terminated by the ASSOCIATION in September 2018. 64. The ASSOCIATION, the individual Defendants and Mr. Hillman, all 0f them knew With certainty by their own accounting records that the accusation in the subject prior lawsuit was meritless and groundless. But, the individual Defendants decided t0 continue the lawsuit With the purpose t0 harm and torture Sherry for another year. E. Defendants Filed the Lawsuit in Violation of CC&Rs 0f the ASSOCIATION 65. The ASSOCIATION’S CC&RS Section 4. 12 explicitly listed the steps that the ASSOCIATION can and should take When an Owner failed t0 pay an Assessment. The ASSOCIATION must send an itemized Statement of Charges by Certified Mail, a Notice 0f Delinquent Assessment, then may place a Property Lien, send the debts to collection and finally exercise the Rights t0 Foreclose. 66. The ASSOCIATION must follow the defined procedures for collection 0f any verified delinquent Assessment through notification, collection agency, lien or even foreclosure, instead 0f initiating a potentially costly civil litigation for the disproportionally small amount in dispute. 67. In fact, the ASSOCIATION previously had sent another member to collection Without litigation. The member had failed t0 pay any assessments for over seven (7) years, owing the ASSOCIATION more than sixty-thousand dollars ($60,000) “past due” assessments and fees. The ASSOCIATION did not file lawsuit against the First Amended Complaint, case no. 19CV356961 14 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OWHCI'. 68. The ASSOCIATION did not comply with CC&Rs Section 4. 12 t0 provide any invoice, statement or itemized list for C CUBE’s accounts for the alleged delinquent amount. The alleged delinquent amount 0f at least $8,783.24 appeared to be completely “made-up” t0 exceed five-thousand dollars ($5,000) t0 justify filing the subject prior lawsuit in the Civil Court instead of the Small Claims court. The subject prior lawsuit was strategically calculated and intended t0 intimidate, shame, harass, bully, and t0 cause emotional distress and financial burdens 0f attorney fees t0 Sherry personally. 69. Furthermore, the ASSOCIATION’S CC&RS, Article 5.2, Section O. stated that the Board 0f Directors 0f the ASSOCIATION had the authority t0 file a lawsuit 0r incur attorney’s fees or litigation costs, etc. “only after” getting the approval at a duly noticed and properly held Membership meeting 0f a maj ority vote 0f tWO-thirds (2/3) 0f the Members. CC&Rs Article 5.2, Section O. Litigation. The Board ofDirectors has authority t0 file a suit, 0r file a demandfor arbitration, 0r incur attorney’s fees 0r litigation costs, 0r enter into a contingentfee contract with an attorney, whether pursuant t0 Code 0f Civil Procedure §383, 0r 0n behalf ofMembers (mly after getting the approval at a duly noticed cmdproperly held Membership meeting, ofa majority vote 0f the Members. Amendment 0f this provision Shall require the vote 0f two-thirds (2/3) 0f the voting power 0f Members other than Declarant. ” 70. Before the Directors acted willfully at their discretion t0 file the subj ect prior lawsuit against Sherry 0n May 25, 2018, the ASSOCIATION did not obtain the approval 0f a maj ority vote 0f the Members at a duly noticed and properly held Membership meeting as explicitly defined in CC&Rs Article 5.2, Section O. 71. At the deposition of the Person Most Knowledgeable (“PMK”) 0n May 22, 2019, Mr. Sean M. O’Neill, a replacement Director after the subject prior lawsuit was filed, answered as the PMK under oath: First Amended Complaint, case no. 19CV356961 15 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BY MS. CHEN: Has there been ever a membership meeting to get the approval of the majority vote 0f the members before filing the litigation in May 0f 2018? (Tr. p. 182221-23.) THE WITNESS: T0 my knowledge, there wasfl member - general membership meeting to vote on Whether to pursue litigation against you (Tr. p. 183 :9-1 1.) 72. The CC&Rs, Section 9. 12 further specifies the requirement and process 0f Alternative Dispute Resolution (ADR). Prior to initiating the filing 0f a civil action With a claim for monetary damages less than fifteen thousand dollars ($15,000), the ASSOCIATION and every owner shall endeavor t0 resolve the matter by Alternative Dispute Resolution. CC&Rs Article 9, Section 9.12 Alternative Dispute Resolution The Association is authorized t0 resolve any civil claim 0r action through alternative dispute resolution proceedings such as mediation, binding arbitration, 0r non-binding arbitration proceedings. Prior t0 initiating thefiling 0r prosecution ofa civil action solely for declaratory relief 0r injunctive relief t0 enforce the Project Documents, 0r for declaratory relief 0r injunctive relief t0 enforce the Project Documents in conjunction with a claim for monetary damages not in excess 0f Fifteen Thousand Dollars ($15,000), the Association and every Owner shall endeavor t0 submit and resolve the matter t0 alternative dispute resolution in compliance with the provisions 0f §§1354(b) (c) and (d) 0f the California Civil Code, as such sections may be amended, revised 0r superseded by subsequent legislation. 73. Before the Defendants willfully decided t0 file the subject prior lawsuit against Sherry on May 25, 201 8, the ASSOCIATIONm offered ADR t0 Sherry 0r C CUBE. 74. The meritless and baseless Civil lawsuit was not only initiated in bad faith and violated CC&RS, but also was not in the best interest of its members. 75. Defendants never requested any discovery 0r deposition for the entire lawsuit from May 25, 2018 to September 9, 2019 when Defendants finally dismissed the First Amended Complaint, case no. 19CV356961 16 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 lawsuit. It was apparent that the alleged delinquency 0f at least $8,783.24 was a ruse. It was an amount “fabricated” t0 exceed the limit for the Small Claims court so Defendants can use ASSOCIATION funds for legal counsel While Sherry had to spend her own money t0 defend herself. F. Judge Dismissed the Second Amended Cross Complaint Without Leave T0 Amend 0n the Ground That Sherrv Chen Was Not the Owner 0f the Propertv and Had N0 Claims 76. In response to the subj ect prior lawsuit, Sherry filed a cross-complaint against the ASSOCIATION. On May 2, 2019, during the Case Management Conference, after Sherry respectfully answered t0 the Honorable Judge Peter Kirwan that she did not do business as LLC. The Honorable Judge Kirwan asked Sherry if she was the owner 0f the property (4-UNITs). Sherry again respectfully answered that she was n_0t the owner 0f the property (4-UNITs). She was a minority owner and one 0f the managers 0f the LLC. She handled the invoices and rental 0f the 4 UNITS. “C CUBE INVESTMENT LLC” was a registered Limited Liability Company in California and C CUBE was the Owner of the property (4-UNITs). Once again, Honorable Judge Kirwan instructed the attorneys of the ASSOCIATION t0 straighten up the ownership issue. 77. Defendants filed a demurrer t0 the cross-complaint. On July 25, 2019, the Honorable Judge Peter Kirwan issued an ORDER - RE: DEMURRER TO THE SECOND AMENDED CROSS-COMPLAINT (Exhibit 2) - Cross-Defendant LUNDY contends CHEN lacks standing as C CUBE INVESTMENT LLC is the real party in interest as it is the owner 0f the four subject units at the Project. (Order p. 3:25- 26.) - In opposition, cross-complainant CHEN does not dispute the standing argument. Instead, CHEN admits that C CUBE INVESTMENT LLC is the title owner of the units and that she is one of the four members of the LLC. (Order p. 4:5-7.) - Accordingly, the demurrer t0 the SAXC is SUSTAINED WITHOUT LEAVE TO AMEND. (Order p. 4: 1 8-19.) First Amended Complaint, case no. 19CV356961 17 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 78. The ORDER issued by the Honorable Judge Peter Kirwan asserted that Sherry does n_0t have standing t0 file the cross-complaint against the ASSOCIATION. A fact both the individual Defendants and ASSOCIATION’S counsel knew With certainty. However, the individual Defendants decided t0 continue the subject prior lawsuit against Sherry. 79. On September 12, 2019, Sherry received an U.S. Mail from Mr. Hillman with a REQUEST FOR DISMISSAL. The REQUEST FOR DISMISSAL was filed to Court 0n September 10, 20 1 9. 80. Since Sherry had n0 standing t0 file the cross-complaint, it was obvious the Defendants filed the lawsuit against a wrong party, Sherry. Although the Dismissal was Without prejudice, the Dismissal is “permanent” and could never be brought up again by Defendants. G. Summarv - Malicious Prosecution 81. “The malicious commencement 0f a civil proceeding is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration ofjustice. The individual is harmed because he is compelled t0 defend against a fabricated claim which not only subjects him t0 the panoply of psychological pressures most civil defendants suffer, but also the additional stress 0f attempting to resist a suit commenced out of spite 0r ill will, often magnified by slanderous allegations in the pleadings.” (Merlet v. Rizzo (1998) 64 Ca1.App.4th 53, 59 [75 Cal.Rptr.2d 83], internal citation omitted.) 82. Discussed above. The ORDER WITHOUT LEAVE TO AMEND from Honorable Kirwin explicitly stated that “. .. CHEN was n_0t the real party in interest and thus lacks standing t0 bring the SAXC. Code 0f Civil Procedure section 367 established the rule that ‘[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.’ A real part in interest is one Who has “an actual and substantial interest in the subject matter 0f the action and Who would be benefitted 0r injured by the judgment in the action.” (Friendly village Community Assn, First Amended Complaint, case no. 19CV356961 18 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Inc. v. Silva & Hill Constr. C0. (1973) 31 Cal.App.3d 220, 225.) 83. The ASSOCIATION dismissed the subject prior lawsuit without prejudice. But the dismissal is “permanent” and “in favor of’ Sherry because Sherry was not the real party in interest. The ASSOCIATON can never sue Sherry personally as a member of the ASSOCIATION for Violations of the CC&Rs and Bylaws. 84. Discussed above. The individual Defendants refused to provide invoices 0r explanations of charges. The individual Defendants refused to permit the property manager to reconcile the account for payments shown 0n C CUBE’s bank statements but failed t0 credit t0 C CUBE’S 4-UNITS. The individual Defendants could not produce 0r provide any information or records for the alleged delinquent $8,783.23. The subj ect prior lawsuit was brought Without probable cause. 85. The individual Defendants filed the subj ect prior lawsuit t0 enforce the Violation 0f the ASSOCIATION’S CC&RS. At the same time, the individual Defendants knowingly and intentionally violated the CC&Rs themselves. The individual Defendants did not follow the explicitly listed procedures t0 send the itemized statements of charge, Certified Mail, and Notice or Delinquency. The individual Defendants did not offer ADR before filing the subject prior lawsuit against Sherry. Above all, the individual Defendants knew With certainty the Sherry was not the Title Owner 0f the 4-UNITS and she was not a member of the ASSOCIATION. N0 reasonable person or a Director of the Board, under the similar or same circumstance, would have filed the lawsuit against Sherry. The subject lawsuit was initiated with malice; and not in good faith or for the best interest of all members of the ASSOCIATION. 86. “The remedy 0f a malicious prosecution action lies t0 recompense the defendant who has suffered out 0f pocket loss in the form 0f attorney fees and costs, as well as emotional distress and injury t0 reputation because 0f groundless allegations made in pleadings which are public records.” (Sagonowsky v. More (1998) 64 Ca1.App.4th 122, 132 [75 Ca1.Rptr.2d 118], internal citations omitted.) 87. On June 8, 2018, When Sherry Chen was served With the Complaint, Sherry contacted a few attorneys. They all explained that the cost 0f defense and representation by attorneys would “significantly” exceed the alleged disputed amount “easily”. As First Amended Complaint, case no. 19CV356961 19 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 professionals practicing laws, it would be unconscionable to accept the representation for this relatively small amount in dispute. 88. CHENs was forced to spend thousands 0f hours, under extreme distress, t0 defend herself for the wrongful and malicious lawsuit. The individual Defendants’ meritless and groundless lawsuit had tortured Sherry for fifteen (15) months when the individual Defendants knew with certainty that Sherry was n_ot the owner 0f the 4-UNITs. The ASSOCIATION had n0 claim to enforce CC&RS and Bylaws the entire period. The intent of the individual Defendants and the purpose 0f the meritless subject prior lawsuit was not t0 recover the groundless alleged delinquent $8,783.23, but t0 retaliate against and damage Sherry personally. 89. CC CHEN was the spouse 0f Sherry. CC CHEN was also a minority owner of C CUBE. Although CC CHEN was not named as defendant in the subject prior lawsuit, the extreme and outrageous conducts of the Directors impacted and damaged CC CHEN emotionally and financially just as much. 90. Both Sherry and CC CHEN were harmed, and the individual Defendant’s conduct was the substantial factor in causing CHENs’ harm. II. OVER 35,000 TIMES OF INTERMITENT HEAVY POUNDING AND BANGING ON THE CEILING OF Sherry BETWEEN DECEMBER 28, 2018, TO JANUARY 9, 2019 91. Lundy Professional Center was a 2-st0ry office building With 41 office suites. The 41 office suites were serviced by five (5) HVAC systems 0n the rooftop. AC- 1, AC-3, AC-4 and AC-S each serviced 8 suites. AC-2 serviced 9 suites. Each system consisted of two 40-ton compressors. The ASSOCIATION was the owner 0f the five (5) HVAC systems. The Directors and the ASSOCIATION had the control and the duty t0 maintain the proper and safe operation of the HVAC systems. 92. The individual Defendants had the exclusive controlling power in making decision for all ASSOCIATION’S business matters. Rooftop was a restricted common area. Access to rooftop was under the exclusive control 0f the individual Defendants. First Amended Complaint, case no. 19CV356961 20 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 93. Plaintiffs were residents/occupants of the building. Plaintiffs had the exclusive possessory rights t0 their offices. Sherry’s office with door and lock was located inside UNIT-238. Her office was 0n the 2nd floor right below the AC-3. Because the individual Defendants had the full control 0f the common area and the HVAC systems, Plaintiffs had n0 alternativem to rely 0n their actions and decision to maintain the HVAC systems. 94. On December 28, 2018, 11:14 AM, Sherry notified the property manager and the individual Defendants that there was intermittent heavy pounding and loud noises shaking the ceiling tiles directly 0n the top 0f her desk. 95. The explosive-like noise, pounding and shaking occurred every 4-5 seconds. It sounded as if something heavy would fall from the roof. The pounding continued for more than four hours while Sherry was in her office on the day. 96. On January 2, 2019, the heavy pounding started from noon and continued t0 7:30 PM when Sherry was working in her office. 97. On January 3, 2019, the heavy pounding started in the morning again. Sherry notified the property manager and the individual Defendants again about the heavy pounding and blasting that had happened “every 5 seconds”. The pounding and shaking were so loud and disruptive such that n0 ordinary person should and would be expected to endure it. 98. Allen Nejah (“ALLEN”), Fay Afrashteh, Yash Dave, Mansoor Dinga and several other residents in the building Visited Sherry’s office, witnessed the unbearable noise and pounding. They all expressed their concerns about the severe and seemingly dangerous condition. 99. Sherry was extremely distressed and upset. She asked for updates about the urgent situation 0f the heavy pounding and banging 0f every 4-5 seconds. 100. On January 4, 2019, the heavy pounding and loud thumping started again in the morning. 101. At noon of January 4, 2019, ALLEN finally went on the roof t0 check. ALLEN found that “... the AC unit above Sherry’s office has a problem With the motor. It comes 0n and off, and every time it comes 0n, it makes big noise and shake the roof First Amended Complaint, case no. 19CV356961 21 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 above her. This should be only one time When it comes 0n, but it keeps going off and on now. . ..” 102. On January 4, 2019, 4:15 PM, Sherry contacted the property manager and the individual Defendants again. The pounding occurred every 4-5 second, 700 t0 900 times each hour, and about 5,000 times during the working hours of a day. 103. The heavy pounding and banging continued for a week, creating significant distress to Sherry. Sherry was extremely upset and suffered for the unbearable headache. In the roughly 30 hours that Sherry worked in her office, Sherry had to ensure the extremely loud noise, pounding, and shaking over her head for more than 20,000 times. This also meant that the motor attempted to jumpstart the compressor for over 20,000 times. An ordinary person would think it was very bad for the motor and the compressor. 104. When a water pipe was broken, an ordinary person would simply shut off the valve to stop the water and call for repairs. An ordinary person would not leave the water running while waiting for the repairman. When a home heating furnace was broken, an ordinary person would just unplug the power and call for repair. An ordinary person would not leave the malfunctioned furnace powered 0n t0 continue t0 jumpstart While waiting for repairman. Each jumpstart would make the heavy thumping noise. 105. When the other member ALLEN went t0 the roof and confirmed that the pounding and shaking was caused by the faulty motor and the compressor in a continuous start and stop, on and off cycle. An ordinary person would simply “unplug” the motor to stop the cycle. ALLEN, CHENS and other members did not have the authority. ALLEN reported to the property manager and the individual Defendants. Sherry had t0 rely on the action of the individual Defendants. 106. The HAVC was an equipment owned by the ASSOICATION under the exclusive control of the individual Defendants. The effort 0f “unplugging” the power t0 stop the harm was minimum while the harm to Sherry and the costly machinery was very high. The ASSOCIATION and the Directors owed a duty of care and the affirmative obligation t0 Sherry as a resident 0f the building that the Defendants controlled. The Defendants were likely negligent. First Amended Complaint, case no. 19CV356961 22 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 107. On January 7, 2019, the heavy pounding and big banging started again in the morning. 108. The property manager and Defendant EISCHEN still demanded proof 0f the heavy pounding and big banging that started 0n December 28, 2018. The effort t0 verify and identify the problem was minimum. It would only take a few minutes t0 walk up t0 Sherry’s office to hear the heavy pounding and banging, and to see and feel the Vibration firsthand. The problem could also be easily verified by going t0 the roof same as What ALLEN did. 109. Defendant EISCHEN stated that she did not hear any noise in her office and no one else had any problem. Defendant EISCHEN’S office was 0n the 1“ floor 0f the end unit 0f the opposite Wing 0f the building. She could not hear it in her office. Therefore, there was no problem. 110. 4:20 PM of January 7, 2019, a technician finally showed up at Sherry’s office. After he experienced the intermittent pounding and shaking in Sherry’s office, he expressed his sympathy. He did not have the code to access to roof. CC CHEN got the code from ALLEN and went t0 the roof With the technician. The technician confirmed the problem With the motor and the compressor. It was the same problem that ALLEN had reported t0 the property manager and the individual Defendants 0n January 4, 2019. The technician left shortly. It was apparent that no one had authorized him t0 d0 anything. Even it was as simple as t0 unplug the power 0f the motor. Nothing was done. 111. After the technician left, the heavy pounding continued every 4-5 seconds to at least 7:30 PM 0n January 7, 2019, When Sherry was working in her office. 112. On January 8, 2019, the 12th day since the problem started, the heavy pounding, and banging continued t0 at least 7:40 PM when Sherry was working in her office. 113. On January 9, 2019, the 13th day, the heavy pounding and banging 0f every 5 seconds started before 9 AM. 114. 11:34 AM 0n January 9, 2019, an unidentified person stood outside UNIT- 238. He did not talk t0 anyone. Around 11:46 AM, the over 35,000 times 0f heavy First Amended Complaint, case no. 19CV356961 23 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pounding and banging finally stopped. It was believed that the person was the HVAC contractor. He simply “unplugged” the power 0f the malfunctioned motor. A. Negligence 115. Negligence is the failure t0 use reasonable care to prevent harm to oneself 0r t0 others. A person can be negligent by acting 0r by failing t0 act. A person is negligent if that person does something that a reasonably careful person would not d0 in the same situation or fails to do something that a reasonably careful person would d0 in the same situation. 116. Duty. California Civil Code states everyone owes a duty of care. Cal CiV Codes §1714(a) “Everyone is responsible, not only for the result 0f his 0r her willful acts, but alsofor an injury occasioned t0 another by his 0r her want ofordinary care 0r skill in the management ofhis 0r her properly 0r person, except so far as the latter has, willfully 0r by want 0f ordinary care, brought the injury upon himselfor herself... ” 117. “The special relationship situations generally involve some kind 0f dependency or reliance... Special relationship, sufficient to hold one liable in tort for failing t0 take affirmation action t0 assist 0r protect another, generally involves some kind of dependency or reliance....” (Melton v. Boustred, 183 Cal. App. 4th 521, 107 Ca1.Rptr. 3d 481 (2010).) 118. ‘Typically, in special relationships, “the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff s welfare. [Citati0n.]” [Citation] A defendant Who is found t0 have a “special relationship” With another may owe an affirmative duty to protect the other person from foreseeable harm, 0r t0 come t0 the aid 0f another in the face 0f ongoing harm or medical emergency.’ (Carlsen, supra, 227 Cal.App.4th at p. 893.) 119. Here, the individual Defendants owed Sherry a general duty of care. The ASSOCIATION owned the rooftop HVAC systems. The individual Defendants had the First Amended Complaint, case no. 19CV356961 24 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 exclusive control and duty in the proper and safe operation 0f the HVAC systems 0n the restricted building roof. 120. Sherry was a resident of the building. Sherry’s office was on the 2nd floor 0f the building. Sherry had n0 choice but t0 depend and rely 0n the action and decision 0f the individual Defendants to provide a healthy and safe environment 0f the building. This dependency and reliance established a special relationship between the individual Defendants and Sherry. Therefore, the individual Defendants not only owed Sherry the standard of care that 0f a reasonable person, but also the affirmative obligation that of a reasonable Director With exclusive controlling power and responsibility. 121. m “Breach is the failure t0 meet the standard of care.” (Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627, 643 [234 Cal.Rptr.3d 330].) 122. Restatement Second 0f Torts, section 282, defines negligence as “conduct Which falls below the standard established by law for the protection 0f others against unreasonable risk 0f harm.” 123. Negligence can be found in the doing 0f an act, as well as in the failure to d0 an act. (Rest.2d Torts, § 284.) 124. Unreasonable Conduct. Sherry reported the heavy pounding, banging, and shaking over her head every 4-5 seconds 0n December 28, 2018. For about two weeks, many concerned residents Visited Sherry’s office to see the severity of the problem. One member, ALLEN went t0 rooftop, confirmed the motor malfunction, and explained the problem to the Individual Defendants. Defendant EISCHEN simply claimed that she could not hear any noise in her office. She refused to even spend a few minutes for a very quick Visit to see the problem firsthand. 125. When ALLEN went to rooftop, the start and stop cycle had already occurred over 20,000 times just during the working hours. Leaving the malfunctioned motor powered on to continue to start and stop every 4-5 seconds served n0 purpose except torturing Sherry and damaging the compressor unit in the process. 126. On the 11th day, January 7, 2019, 4 PM, a technician finally came and again confirmed the same motor problem as reported by ALLEN. First Amended Complaint, case no. 19CV356961 25 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 127. However, after the Visit 0f the technician, the heavy pounding, banging and shaking continued for a couple more days. That caused additional tens 0f thousands 0f more cycles of start and stop of the motor and the compressor. 128. Any ordinary and reasonable person With the controlling power would not allow the damaging cycles to continue for an unreasonable amount 0f time, especially the effort t0 prevent 0r stop the harm was minimum. 129. An ordinary person would think that a prudent and reasonable Director in the similar circumstance would instruct to power off the malfunction motor. It would not only stop the torturing noise and Vibration, but also prevent destroying the $25,000 system and wasting electricity. The Directors acted unreasonably and breached their duty 0f care and the affirmative obligation t0 Sherry and t0 all ASSOCIATION members. 130. Hand Formula. The Hand formula (B < PL) states that when the burden on Defendant to prevent harm is less than the probability 0fharm times the likely seriousness of the harm, then the Defendant has acted unreasonably and breached the duty of care. By this measure, the individual Defendants breached their duty of care. 13 1. Here, ALLEN went t0 the rooftop and confirmed the motor and the compressor problem. The only effort required for the individual Defendants to stop the harm was to “unplug” the power 0f the broken motor. According t0 the Hand Formula, ifPL exceeds B, then the defendant should be liable. In fact, it was exactly what the 2nd repairman did 0n January 9, 2019. Only it was done after almost two weeks’ intermittent, harmful pounding, banging, and shaking. 132. Negligence Per Se. Negligence per se is established by (1) the defendant violated a statute, ordinance, 0r regulation; (2) the Violation was a substantial factor in bring about the harm. 133. California Health and Safety Code, Division 28. Noise Control Act Section 46000. The Legislature hereby finds and declares that: (f) A11 Californians are entitled to a peaceful and quiet environment Without the intrusion 0f noise which may be hazardous to their health or welfare. 134. The California Noise Control Act was established t0 protect exactly this type of harm. A11 Californian are in the protected class 0f the law. The Defendants had First Amended Complaint, case no. 19CV356961 26 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 exclusive controlling power but failed to take timely and adequate action t0 stop the harm. Sherry was deprived of the rights t0 a peaceful and quiet environment. In addition, Sherry suffered significant distress and physical discomfort through the period due t0 the negligent act. 135. Res ipsa loquitur. “In California, the doctrine 0f res ipsa loquitur is defined by statute as ‘a presumption affecting the burden 0f producing evidence.’ The presumption arises When the evidence satisfies three conditions: ‘(1) the accident must be of a kind Which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency 0r instrumentality Within the exclusive control 0f the defendant; (3) it must not have been due to any voluntary action or contribution 0n the part 0f the plaintiff.’ (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826 [15 Cal.Rptr.2d 679, 843 P.2d 624], internal citations omitted.) 136. Here, the harm caused by over 35,000 times non-stop constant heavy pounding and big banging that ordinarily would not have happened unless someone was negligent. The harm was directly caused by an equipment that was owned by the ASSOCIATION and controlled by the individual Defendants. Sherry did not cause 0r contribute t0 the events that harmed her. Therefore, there was no comparative fault of plaintiff. 137. Causation. Actual cause means that the breach of the duty 0f care must be the factual cause 0f the plaintiff s harm. Here,M the individual Defendant’s actions of allowing the malfunction motor to remain powered 0n, the Plaintiff would not have been harmed by the horrible noise torture. Proximate cause means Whether the harm was foreseeable bases 0n the defendant’s actions. Here, the harm t0 the expensive machinery and the mental and physical harm to Sherry by the intermittent pounding, banging and shaking were obvious to anyone once hearing it. Defendant’s negligence was the actual and proximate cause 0f the harm. 138. Sherry suffered damages of severe emotional distress and physical discomfort. Further, the emotional distress t0 Sherry was not just the pounding, banging 0r shaking but the anger and frustration caused by the indifference, negligent 0r reckless inaction of the individual Defendants after the problem was reported. First Amended Complaint, case no. 19CV356961 27 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Private Nuisance 139. “[T]he essence 0f a private nuisance is its interference with the use and enjoyment 0f land. The activity in issue must ‘disturb 0r prevent the comfortable enjoyment of property,’ such as smoke from an asphalt mixing plant, noise and odors from the operation of a refreshment stand, 0r the noise and Vibration of machinery.” (Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 534 [90 Cal.Rptr.2d 491], internal citations omitted.) 140. “A nuisance is an interference with the interest in the private use and enjoyment of the land and does not require interference With the possession.” (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1178 [227 Cal.Rptr.3d 390].) 141. “So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient t0 the normal person, Virtually any disturbance 0f the enjoyment of the property may amount t0 a nuisance; . . . .” (Mendez, supra, 3 Ca1.App.5th at p. 262.) 142. Here, individual Defendants and the ASSOCIATION acted recklessly and unreasonably to allow the malfunctioned motor and compressor above the office of Sherry t0 create and continue pounding, banging, and shaking for at least 35,000 times for 13 days. Sherry did not consent to the heavy pounding and banging, or the shaking over her head every few seconds. It substantially obstructed the use and interfered with the comfortable enjoyment of her office. The harmful and offensive intrusion of noise, pounding and shaking was extreme and outrageous that n0 reasonable person could be expected to endure. C. Battery 143. “A battery is a Violation 0f an individual’s interest in freedom from intentional, unlawful, harmful or offensive unconsented contacts With his 0r her person.” (Rains v. Superior Court (1984) 150 Cal.App.3d 933, 938 [198 Cal.Rptr. 249].) First Amended Complaint, case no. 19CV356961 28 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 144. “The essential elements 0f a cause of action for battery are: (1) defendant touched plaintiff, 0r caused plaintiff t0 be touched, With the intent t0 harm 0r offend plaintiff; (2) plaintiff did not consent t0 the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’ s position would have been offended by the touching.” (S0 v. Shin (2013) 212 Cal.App.4th 652, 669 [151 Cal.Rptr.3d 257] [citing this instruction].) 145. “[T]he tort of battery generally is not limited to direct body-to-body contact. In fact, the commentary to the Restatement Second 0f Torts clearly states that the ‘[m]eaning 0f “contact With another’s person” ’ . . . does not require that one ‘should bring any part 0f his own body in contact With another’s person. . . . [One] is liable [for battery] in this Section if [one] throws a substance, such as water, upon the other . . . .’ ” (Mount Vernon Fire Ins. C0. v. Busby (2013) 219 Ca1.App.4th 876, 881 [162 Cal.Rptr.3d 211]) 146. Battery is a voluntary act that is intended t0 cause harmful or offensive contact to another person and causes such contact. 147. A voluntary act means the person did it under his 0r her own power. Here, the individual Defendants had the exclusive controlling power, chose t0 ignore and not take prompt action for the harm caused t0 Sherry. 148. Intent is a desire for it t0 occur. Sherry was in disputes with individual Defendants that the ASSOCIATION filed the meritless, groundless, and malicious subject prior lawsuit against Sherry at the time. It was not surprised that the individual Defendants decided to ignore the pleading from Sherry regarding the problem. Defendant EISCHEN even declared that she and no one else had the problem. 149. The individual Defendants knew With substantial certainty on January 4, 2019m ALLEN reported several times. The intermittent pounding, banging and shaking had caused harmful and offensive contact t0 Sherry. The individual Defendants ignored ALLEN’s reports that evidenced the Defendants’ intent t0 cause the harm against Sherry. 150. It is a known torture method with sound t0 use noise to break a person psychologically. A prudent and reasonable director would simply “unplug” the First Amended Complaint, case no. 19CV356961 29 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 malfunctioned motor immediatelym the confirmation by ALLEN regarding the faulty motor problem. It would not only stop the harm 0fpounding and shaking, but also protect the $25,000 system. Instead, the individual Defendants willfully allowed the noise to continue for another 25,000 times, intentionally causing harmful and offensive contact by noise t0 harm Sherry that she had no control and she never consented t0 it. 151. The additional tens 0f thousands 0f cycles of pounding, banging, and shaking were mental and physical torture. The pounding and shaking caused significant distress, headache, anger, and frustration t0 Sherry. The negligent inaction by individual Defendants were outrageous. Above all, n0 reasonable person should be expected t0 endure the noise torture. D. Intentional Infliction Of Emotion Distress 152. “A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard 0f the probability 0f causing, emotional distress; (2) the plaintiff” s suffering severe 0r extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ A defendant’s conduct is ‘outrageous’ When it is so ‘extreme as t0 exceed all bounds 0f that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended t0 9” inflict injury or engaged in With the realization that injury Will result. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [95 Ca1.Rptr.3d 636, 209 P.3d 963]) 153. “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, 0r occur in the presence 0f a plaintiff ofwhom the defendant is aware.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903-904 [2 Cal.Rptr.2d 79, 820 P.2d 181].) 154. “Severe emotional distress [is] emotional distress of such substantial quantity or enduring quality that n0 reasonable man in a civilized society should be expected t0 endure it.” (Fletcher v. Western Life Insurance C0. (1970) 10 Cal.App.3d 376, 397 [89 Ca1.Rptr. 78].) First Amended Complaint, case no. 19CV356961 30 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 155. “Emotional distress” includes any “highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, or worry.” (Fletcher, supra, 10 Ca1.App.3d at p. 397.) 156. “With respect t0 the requirement that the plaintiff show severe emotional distress, this court has set a high bar. ‘Severe emotional distress means “emotional distress 0f such substantial quality 0r enduring quality that n0 reasonable [person] in civilized society should be expected t0 endure it.” ’ ” (Hughes v. Pair (2009) 46 Ca1.4th 1035, 1051 [95 Ca1.Rptr.3d 636, 209 P.3d 963].) 157. “‘One Who has wrongfully and intentionally [suffered severe emotional distress] may recover compensatory damages even though he 0r she has suffered no physical injury,’ and ‘the right to compensation exists even though n0 monetary loss has been sustained.”’ (Grimes v. Carter (1966) 241 Cal.App.2d 694, 699 [50 Ca1.Rptr. 808].) 158. Here, the facts above (See 1] 146-150 ) showed that the individual Defendants’ conduct was extreme and outrageous. Defendants ignored and refused t0 spend even a few minutes to investigate the problem. Defendants did not unplug the malfunctioned motorm ALLEN and the ASSOCIATION’S contractor had confirmed the broken motor was the cause of the harm. The conduct or inaction by Defendants were extreme and outrageous. 159. The individual Defendants’ extreme, outrageous, and dismissive conduct t0 the motor problem caused severe headache, anger, frustration and other emotional distress and physical discomfort to Sherry. Sherry could not stay calm, concentrate or focus 0n her work, causing significant drop in her productivity. In summary, Sherry suffered severe emotional distress caused by the extreme and outrageous conducts 0f the Defendants. The individual Defendants’ conduct was the substantial factor in causing Sherry’s severe emotional distress. III. LOUD NOISE AND VIBRATION LIKE TRAIN ROLLING OVER ON TOP OF CELING THROUGH BUILDING First Amended Complaint, case no. 19CV356961 31 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 160. On June 17, 2020, around 6:45 PM, an extremely loud and Vibration started. It was like a high-speed train rolling over above UNIT-238. The noise was so loud that the entire 2nd floor and even the 1“ floor could hear the loud noise and Vibration. Because it was right above Sherry’s office in UNIT-238, several occupants expressed their concerned about Sherry’s safety. 161. On August 11, 2020, right after 4 PM, the extremely loud sound and Vibration like a high-speed train rolling over right above UNIT-238 happened again. 162. On August 25, 2020, Sherry was working in the office by herself. Around 6 PM, the extremely loud noise and Vibration like a high-speed train rolling over 0n the top 0f her office started again. The ceiling was shaking so bad, Sherry grabbed her handbag and cell phone then ran out 0f the office. She saw several residents in the parking lot. Again, the noise and Vibration were right above Sherry’s office in UNIT- 238. Several other occupants in the building asked the situation about Sherry’s office. 163. On March 3, 2021, the high-speed train rolling over noise and Vibration happened and continued for over 2 hours. Again, it was 0n the top of Sherry’s office. Again, the noise was so loud such that the entire 2nd floor and the 1“ floor could hear the noise. 164. On March 22, 2021, the high-speed train rolling over sound happened again. IV. WATER POURING INTO UNIT-238 FROM THE CEILING LIKE HEAVY RAINS 165. Repeated. Rooftop of the building was the restricted common area under the exclusive control of the individual Defendants. The ASSOCIATION had the responsibilities for routine maintenance and repairs 0f the roof. The ASSOCIATION owned the HVAC systems on the rooftop. The ASSOCIATION also had the responsibilities in routine maintenance and repairs 0f the HVAC systems. 166. CC CHEN was a resident/occupant 0f the building since 201 1. CC CHEN’s office was in UNIT-238. CC CHEN had the exclusive possessory rights of his office. First Amended Complaint, case no. 19CV356961 32 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 167. Over the past 5 years, water had leaked into CC CHEN’s office from the dropped ceiling every few months. It was speculated that HVAC system had caused the condensation t0 form and leaked into CC CHEN’S, Sherry’s offices and other areas in UNIT-238 and UNIT-266. The property manager explained that When the water pan 0f the HVAC was full, the water could accumulate and flowed into CC CHEN’s office. However, the reason was unclear and puzzling. The AC was located on top of the roof. There was a crawling space between the roof and the dropped ceiling 0f the office. Condensation 0f water from the rooftop AC should be poured directly to roof drainage pipes When the water pan was full. 168. Water dripping and pouring into CC CHEN’s office and UNIT238 happened so many times in the last 5 years. Large volume 0f water had poured down from the ceiling into CC CHEN’S office and damaged the ceiling tiles, furniture, stereo sets, books, painting and collectible souvenirs, etc. The situation and condition were beyond description. Photos and Video (Exhibit 3) would provide a much adequate understanding 0f severity 0f leaks. A; x“. First Amended Complaint, case no. 19CV356961 33 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 169. Leak no. 1. October 3, 2016, Sherry notified the new property manager that the dropped ceiling tiles 0fCC CHEN’S office were wet since last Friday, September 30, 2016. There was no rain in San Jose for many weeks. Mr. Polk, the then property manager replied: “This type 0f leak is most frequently from an HVAC unit - either the overflow pan or sometimes the ducting gets full of condensation and leaks.” Mr. Polk advised Sherry t0 get a technician to take a 100k”. Sherry replied t0 Mr. Polk that the HVAC system was owned by the ASSOCIATION. They were located on the rooftop. Access to the rooftop was strictly controlled by the individual Defendants. CC CHEN did not have access to the roof. 170. On October 5, 2016, someone stopped by. The person told the CHENS that he could only report his findings t0 the ASSOCIATION. However, the water dripping stopped 0n its own, and only water stain remains on the tiles. 17 1. Leak n0. 2. December 23, 2016, the leak in CC CHEN’S office happened again. Sherry notified Mr. Polk that it was leaking badly right then. Sherry attached photos with the email. Mr. Polk replied that he sent a work order. Their office would be closed for holidays. 172. Leak no. 3. February 21, 2017, before 4 PM, the leak started again. The dropped ceiling tiles in CC CHEN’S office was completely soaked and weighed down by the water accumulated above the ceiling tiles. The water soaked through the tile and dripped on the office carpet. Everything on the cabinet and bookshelf was ruined again. This was the 3rd time since September 2016. Sherry emailed six photos t0 Mr. Polk. 173. The water problem continued and ruined all personal items, documents and records 0n the shelf and the office carpet. The only thing CC CHEN could do was t0 use plastic bag to cover the area and use buckets to collect the water. 174. Once again, the technician refused t0 provide CC CHEN 0r Sherry any updates claiming they could only talk to the ASSOCIATION. 175. Leak no. 4. On August 25, 2017, Sherry notified Mr. Polk that heavy water was pouring into CC CHEN’s office like a small waterfall. First Amended Complaint, case no. 19CV356961 34 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 176. On August 26, 2017, Mr. Polk replied that he was n0 longer the property manager for the ASSOCIATION. The individual Defendants did not notify the members of the ASSOCITION the name 0f the replacement property manager. 177. On August 28, 2017, the 4th day 0f heavy leak, distressed and desperately, Sherry emailed the new property manager, Mr. March. Video (Exhibit. C) was sent to Mr. March. Sherry must empty the buckets and containers frequently because the huge volume 0f water pouring in. 178. On August 29, 2017, 11 AM, the water once again poured in. It appeared that water would accumulate above the dropped ceiling under certain unknown conditions When the AC was running. The water would accumulate on the top of the ceiling tiles, then soaked through the dropped ceiling tiles. When the water soaked through the tiles, it would drip down t0 the carpet. When dripping was not fast enough to relieve the accumulated water, it weighed down on the tiles, bent the tiles and poured down. Because the problem occurred so many times, CC CHEN was even able to capture a Video 0f the eye-opening waterfall in the office. 179. Mr. March stopped by UNIT-238 in the afternoon and saw firsthand the “heavy raining” inside CC CHEN’S office and the open office area. The ceiling tiles could not hold the weight for the volume 0f water and finally buckled the tiles and rained down. The water again created a big mess in CC CHEN’s office. The wall was wet and sticky. The carpet was wet. The entire office smelled “moldy”. Sherry opened the door for UNIT-238 and used big fans t0 try t0 circulate air. Sherry also used portable heater to try to dry the soaking wet carpet. 180. On August 30, 2017, a contractor came. He had absolutely n0 idea 0f the situation of the last 6 days. He told us: “Oh! The only reason the AC will leak is the water pan was full 0r the drainage pipe was clogged. After the water pan is drained out, the leak Will stop”. It was apparent that he was not going t0 do anything t0 fix the problem or stop the leak. 181. This was the 4th time in 12 months. It just did not make any sense to an ordinary person. When the water pan was full, Why the water in the water pan would not drain out through the rooftop draining pipes, but poured into the offices below, UNIT- First Amended Complaint, case no. 19CV356961 35 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 238 and UNIT-266. The water from HVAC’S water pan should not overflow to CC CHEN’s office if the roof drainer was maintained properly t0 work as it should be. Regardless, the HVAC was the equipment owned by the ASSOCIATION. Both HVAC and roof were under the exclusive control 0f the individual Defendants and members 0r residents did not have access without individual Defendants’ permission. 182. Nothing was done. Defendants were waiting for the water leak t0 stop by itself after all the water in the water pan poured into CC CHEN’s office. However, the problem did not stop. The water continued to pour in intermittently. Mr. March confirmed the leak was not fixed, the 6th day 0f leaking. 183. In the evening, the water was leaking through the lighting fixture again. 184. On August 3 1, 2017, all the walls in addition t0 ceiling tiles and carpet were wet. 185. On September 20, 2017, the water dripping had been on and off forM one month since August 25, 2017. Sherry asked Mr. March for updates. The water problem not only seriously affected the working environment, but also created possible health and safety concerns. “MOLD” was observed after the ceiling tiles were removed. It was believed that mold problem could have started by the water 0n structure beams above the dropped ceiling and the soaking tiles since 2016. 186. The contractor Who was sent t0 assess the problem informed Sherry again that he could only talk to the ASSOCIATION because the ASSOCIATION was paying for his service even the ASSOCIATION’S AC leaked t0 CC CHEN’s office. This was the 4th occurrence in 12 months. The water problem was 0n and off for over one month already. Plaintiffs did not know the cause and did not have the authority t0 fix it. 187. Leak n0. 5. July 11, 2019, the leak started again. Photos and Video were sent again. 188. August 1, 2019, Sherry asked When the ASSOCIATION planned to fix the ceiling damage and checked for MOLD. 189. August 2, 2019, the property manager replied to Sherry that the suite owners/occupants were responsible for the “inside” the UNIT when the individual First Amended Complaint, case no. 19CV356961 36 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants knew With certainty the damages were caused by the water from the ASSOCIATION’S HVAC system 0n the rooftop. 190. August 26, 2019, the property manager informed Sherry: “The Board met last week and determined that they Will provide you With the ceiling tiles t0 replace the damaged ones in your unit caused by AC3.” An ordinary person would ask Why CC CHEN must fix the damages caused by the equipment owned by the ASSOCIATION. The ASSOCIATION had never fixed 0r repaired the damages caused by the AC LEAK as 0f now. 191. Leak n0. 6. December 16, 2019, the leak started again. 192. Leak no. 7. October 19, 2020, the leak started again. A. Negligence (Id. 1W 115, 122-123.) 193. M. First, the ASSOCIATION and the individual Defendants owed CC CHEN the general duty of care. Second, the individual Defendants had the exclusive controlling power at their discretion in making decision 0f all ASSOCIATION’S business matters including but not limited to the routine maintenance and repairs 0f the HVAC units and the roof of the building. CC CHEN was a resident and worked in UNIT-238 0f the building. CC CHEN had n0 choice but to m_Lon the action and decision 0f individual Defendants and the ASSOCIATION to provide a healthy and safe environment. The dependence and reliance imposed an affirmative obligation on the individual Defendants t0 prevent harm to all occupants of the office building. 194. m (Id. 1W 121-123.) Here, every few month water problem caused significant harm t0 CC CHEN’S office over several years. Water not only damaged personal properties, files and documents but also caused potential mold, health, and safety concerns. 195. Causation. (Id. 1] 137.) Here, the harm was caused by an equipment or roof leak that was under the exclusive control by the individual Defendants. BLfor the individual Defendant’s actions of failing t0 maintain 0r repair the HVAC systems and “roof”, the plaintiff would not have been harmed 0r damaged by the water problem from First Amended Complaint, case no. 19CV356961 37 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2016 to 2020. When the individual Defendants did not properly maintain or repair the HVAC systems, the harm by the dripping 0r pouring water into CC CHEN’S office and UNIT-238 was known and foreseeable by any reasonable person as a likely result. CC CHEN did not cause 0r contribute t0 the water problem. Therefore, there was n0 comparative negligence by the Plaintiffs. B. Private Nuisance (Id. W 139-142.) 196. Here, individual Defendants and the ASSOCIATION acted recklessly failing to maintain and repair the HVAC systems and the building roof. The individual Defendants’ act caused the water t0 drip 0r pour into CC CHEN’s office at least seven times since September 2016. Each time, the water problem would persist for days, weeks 0r over one month. The water dripping 0r pouring into CC CHEN’S office substantially obstructed the safety and comfort 0f the office. N0 reasonable person should be expected to endure 7 times of leaks 0f days, weeks 0r month. C. Battery. (Id. 1W 143-145.) 197. Intent is a desire for it t0 occur. Here, the individual Defendants knew With certainty about the water problem after the problem was first reported on September 30, 2016. The individual Defendants acted intentionally not to fix the problem and caused the leaks happened every few months. CC CHEN did not cause, consent or contribute to have the water touching him, his office or his belongings. The touching by the unwanted water from the ceiling was offensive and harmful t0 any reasonable and ordinary person. The offensive intrusion by water occurred at least seven times, September 30, 2016, December 23, 2016, February 21, 2017, August 25, 2017, July 11, 2019, December 16, 2019, and October 19, 2020 and each lasted a few days, weeks 0r over one month. D. Trespass t0 Land. First Amended Complaint, case no. 19CV356961 38 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 198. “Generally, landowners and tenants have a right to exclude persons from trespassing 0n private property; the right t0 exclude persons is a fundamental aspect 0f private property ownership.” (Ralphs Grocery C0. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 258 [225 Ca1.Rptr.3d 305].) 199. “‘Trespass is an unlawful interference with possession 0f property.’ The elements of trespass are: (1) the plaintiff’ s ownership 0r control 0f the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack 0f permission for the entry or acts in excess 0f permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm. (See CACI N0. 2000.)” (Ralphs Grocery C0,, supra, 17 Cal.App.5th at pp. 261-262, internal citation omitted.) 200. “The general rule is simply that damages may be recovered for annoyance and distress, including mental anguish, proximately caused by a trespass.” (Armitage v. Decker (1990) 218 Cal.App.3d 887, 905 [267 Cal.Rptr. 399], internal citations omitted.) 201. “Trespass may be ‘by personal intrusion of the wrongdoer 0r by his failure to leave; by throwing 0r placing something on the land; or by causing the entry 0f some other person.’ A trespass may be 0n the surface 0f the land, above it, 0r below it. The migration of pollutants from one property to another may constitute a trespass, a nuisance, 0r both.” (Martin Marietta Corp. v. Insurance C0. ofNorth America (1995) 40 Cal.App.4th 1113, 1132 [47 Ca1.Rptr.2d 670], internal citations omitted.) 202. Repeated. CC CHEN’s office was located inside UNIT-238 with door and lock. CC CHEN had exclusive possessory rights of his office. 203. The individual Defendants did not properly or adequately maintain 0r repair the HVAC systems and roof that caused the water dripping 0r pouring into CC CHEN’S office at least seven times from September 2016 to October 2020. 204. CC CHEN did not give permission for the water t0 drip or pour into his office from equipment of the area that was under the exclusive control of the Defendants. CC CHEN suffered damages. The water intrusion from the AC on the rooftop was the only factor in causing the damages. First Amended Complaint, case no. 19CV356961 39 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. OUTRAGEOUS BEHAVIORS AND CONDUCTS REGARDING UNREASONABLE UTILITY BILLS. 205. Stated above. C CUBE was the legal owner 0f the 4-UNITS and thus C CUBE was a member 0f the ASSOCIATION. The Directors had power and responsibilities t0 enforce CC&Rs and Bylaws including but not limited to collect assessments, and to maintain the common area and the building and equipment. 206. Sherry was a minority member 0fC CUBE. She was responsible for C CUBE’S accounting. Each month Sherry would collect rents from C CUBE’s tenants and make payment for assessment invoices provided by the ASSOCIATION. Sherry had n0 alternative but to work and comply With the demands 0f the Defendants. 207. After C CUBE purchased the 4-UNITs in 201 1, SHERRY Chen received the monthly statements to C CUBE for both Regular Assessment and Cost Reimbursement Assessment (utility bills). The monthly statements for Cost Reimbursement Assessments include: (1) Copies ofPG&E bills for the PROJECT, (2) an invoice showing the Power meter kilowatt (KW), Cooling kilowatt (KW) and Heating Thermos used inside the UNIT and (3) the Common area pro-rata share. It was transparent, fair and each UNIT pays for What it uses. Sherry had always made payments for C CUBE’S assessment invoices 0n time and in full. At the end 0f year 2014, there was n0 delinquent amounts 0f assessments for C CUBE’s 4-UNITs #238, #266, #268 and #286. 208. Around June of 2016, the charge 0f monthly Cost Reimbursement Assessments (utility bills) for UNIT-268 suddenly doubled and tripled Without any changes in the activities by the tenant. Tenant 0fUNIT-268 and Sherry both requested the individual Defendants to investigate the issue. The individual Defendants did not reply 0r explain. Sherry has n0 choice but t0 pay the amounts as demanded every month “under protest”. 209. In December of 2016, Without disclosure 0r approval by majority 0f the Members, the individual Defendants changed the calculations for allocation 0f the Cost Reimbursement Assessments by assigning a fixed percentage t0 each UNIT. The individual Defendants believed that they had superior power “at their discretion” in First Amended Complaint, case no. 19CV356961 40 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 allocations of assessments even “at their discretion” was unreasonable, unfair, and not in the best interest 0f all members. 210. The unfair and unjustified fixed percentage t0 each UNIT was used for utility bills t0 each UNIT for 2017 and 2018 regardless 0f the actual usage. UNIT-268 was assigned with an unreasonably high percentage relative to other comparable UNITS 0r the history 0f prior usages 0f UNIT-268. 21 1. Sherry found out after-the-fact that the individual Defendants received similar complaints from several other Members With the same problem. The individual Defendants knew With certainty about the unfair and unreasonable assessment issue. Instead of investigating the errors and fixing the problems, the individual Defendants willfully violated the CC&RS that required each UNIT “pays for what it uses and shares the common expenses”. The undisclosed change 0f the allocation method t0 a fixed percentage completely disregarded and violated the rules in the CC&Rs and prior practices from 2006 t0 2016. The undisclosed change 0f the allocation method allowed certain individual Defendants to enjoy relatively 10w and fixed percentage utility bills i_n pegpetualig. 212. In late 2017, Sherry prepared a graphical 3-year Trend Chart to show the significant increase 0f utility bills for UNIT-268. When the then property manager presented the 3-year Trend Chart in the Board Meeting, the only comment from the individual Defendants, according to the property manager, was “Nice Chart”. Even after the tenant 0fUNIT #268 moved out and the office was vacant, the high and unreasonable fixed percentage bill continued. The frustration and emotion distress to Sherry was not just caused by the unreasonable bills but the total indifference and refusal 0f Defendants t0 investigate, explain or justify their actions. The continuous feeling of helplessness, despair, anger, and frustration caused significant physical discomfort and sickness essentially every month. 213. Sherry further found that certain individual Defendants had comparably much lower monthly assessments 0f the average for all UNITS. At the same time, C CUBE were assessed at significant higher rate of the average for all UNITS. 214. The unfair and unjustified charges were n_0t based 0n the actual usage as First Amended Complaint, case no. 19CV356961 41 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 explicitly regulated by the CC&Rs. Tenant 0fUNIT-268 refused t0 pay for the ridiculous and unreasonable utility bill and terminated the lease after being a tenant for over 10 years. 215. Each month, Sherry was distressed and depressed before and after receiving the utility bill. The distress was caused not just by the unreasonable bills but also the frustration by the continuous rejection and refusal to provide justification by the individual Defendants. 216. Sherry and several other Members complained and protested to the individual Defendants month after month, but the unreasonable and unjustified billings continued. 217. The individual Defendants hired and fired one new property manager every year from 2015 t0 2018, effectively created confusion and muddy ASSOCIATION financial records. Each new property manager always started by stating that they did not receive the financial reports from the prior managers and could not investigate or correct prior errors, thus allowing individual Defendants t0 retain control, benefit themselves and retaliate against Sherry. 218. In December of 2018, the individual Defendants, Without disclosure 0r approval by maj ority 0f the Members, changed the calculation 0f allocation 0f the Cost Reimbursement Assessmentsw, resulting in even more unfair assessments. 219. The Defendants effectively demonstrated that in the name 0f the CC&Rs they had the unlimited power and authority, and they could d0 anything in any way they want. The conducts by the Defendants were outrageous, extreme, and continuous While Sherry had n0 choice but t0 comply. 220. On February 11, 2019, Sherry received an U.S. mail addressed t0 C CUBE postmarked February 5, 2019. It was the utility bill for period 1217 1 8-01 1619. The utility bill for UNIT-286 was $1,929. 221. The entire PG&E bill for the PROJECT included usages for: (1) the 41 UNITS, (2) 5-HVAC systems and (3) the shared Common Area. For period 0f 1217 1 8- 01 1619, the PG&E bill for the PROJECT wasM. 222. However, the ne_w method allocated a utility bill assessment 0f $3,006 t0 C First Amended Complaint, case no. 19CV356961 42 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CUBE’s 4-UNITs. The 4-UNITs were 8.72% of the PROJECT. The utility assessment charged t0 C CUBE’S 4-UNITS was 3 1 .5% 0f the PG&E bill for the PROJECT. Again, Sherry, extremely frustrated and distressed, had n0 choice but t0 make payments for C CUBE under protest. Again, the emotional distress to Sherry was not just caused by the high utility assessments but the intentional indifference and disregard of the issues raised by Sherry. 223. UNIT-286 tenant was extremely angry for the ridiculous utility bill and refused to pay. Sherry again was extremely distressed and depressed for the monthly unreasonable billings that had continued for years. The injustice and outrageous behavior of the individual Defendants were beyond any reasonable person could endure. Sherry requested the property manager t0 provide information for the $ 1 ,929 utility bill for UNIT-286. 224. On March 4, 2019, the property manager emailed Sherry a report showing the electricity meter readings. The usage report showed: (1) 41-suites all together used 19,127 kWh (kilowatt hour) and among them UNIT-286 used 5,150 kWh; A 2. 14% suite used 27% of electricity 0f all suites together; (2) 5-HVAC systems that each had two 40 tons compressors, all together used 9,547 kWh. AC-l used 985 kWh, AC-2. used 2,362 kWh, AC-3 used 3,653 kWh, AC-4 used 2,546 kWh, but AC-S used 0 kWh. (3) PG&E bill for the period showed a total usage of 45,046 kWh for the entire PROJECT. 225. Mr. John Kwan, tenant ofUNIT-286, was an electrical engineer. He wrote an email t0 the property manager that UNIT-286 was equipped With a lOO-AMP 110V panel. It would take 5 0f these electrical panels to safely consumed 5,150 kWh in a 30- day cycle. It was physically impossible that UNIT-286 used 5,150 kWh. The UNIT and building would be burned already. 226. Further, it was also impossible that AC-S consumed O kWh for the 30-day period. 227. Mr. Kwan refused t0 pay the ridiculous utility bill. His refusal to pay was as expected by any ordinary and reasonable person. C CUBE, as a member of the ASSOCIATON, had no choice but to pay in full as demanded. The Defendants had First Amended Complaint, case no. 19CV356961 43 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen demonstrated their willingness for collection or foreclosure regardless how ridiculous and unreasonable 0f the bills. 228. On March 25, 2019, property manager emailed the utility bill for period 01 1619-021419. The report showed (1) 41-suites all together used 9,981 kWh; UNIT- 286 used 1,539 kWh. (2) 5-HVAC systems all together used 3,089 kWh. Among them, AC-l used 0 kWh; AC- 2 used 925 kWh, AC-3 used 770 kWh; AC-4 used 1,393 kWh; and once again AC-S used 0 kWh. (3) PG&E bill showed the entire PROJECT usage of 45,325 kWh. It meant that something 0r someone used 32,253 kWh. It wasM 0f electricity usage 0f the entire PROJECT. The usage was unidentified and billed t0 everyone. 229. Sherry summarized the errors 0n the reports for the 2 months. Sherry extremely frustrated and depressed, together with several other residents requesting for explanations: (1) It was impossible that AC-l and AC-S consumed O kWh; (2) What caused the dramatic changes in the consecutive months (3) Who and What was using the 32,253.90 kWh 0f the 71% of total electricity. 12/17/18to 01/16/19 01/16/19t0 02/14/19 o Total usage for suites 19,127 kWh 9,981 kWh o Total HVAC usage 9,547 kWh 3,089 kWh o Unknown 16,371 kWh 32,253 kWh Total 0n PG&E bills 45,046 kWh 45,325 kWh 12/17/18t001/16/19 01/16/19t0 02/14/19 AC-l 985 kWh 0 kWh AC-2 2,362 kWh 925 kWh AC-3 3,653 kWh 770 kWh AC-4 2,546 kWh 1,393 kWh AC-S 0 kWh 0 kWh UNIT-286 usage 5,150 kWh 1,539 kWh 230. March 29, 2019 the property manager replied that the report was generated by the newly implemented “Total Control System”. It was a system the ASSOCIATION paid $32,120 for it. This was the 15‘ time it was disclosed to all members. First Amended Complaint, case no. 19CV356961 44 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 1. E ordinary person would believe it was reasonable 0r physically possible that a small office not using any heavy machine 0r high voltage equipment consumed 5,150 kWh. It was 500% out of the capacity 0f the electrical panel. 232. April 9, 2019, the ASSOCIATION arranged 2 electricians on-site t0 test for accuracy 0f meter reading suite by suite. Sherry waited for them. One of the 2 electricians pointed at the electrical breaker telling Sherry: “You know this is 100 Amp breaker. It is impossible t0 use 5,000 kWh not in one month, 2 months or 3 months.” 233. On April 25, 2019, the ASSOCIATION finally released the test result 0f April 9, 2019 by the 2 licensed electricians. Sherry summarized the report upon the request ofUNIT-286 tenant. The certified electrician confirmed that electricity usage by UNIT-286 should be about 63% 0f one 0f the individual Defendants Who controlled the accountings for the ASSOCIATION. If her monthly bill was $127, then UNIT-286’s bill should be about $90. 4/9/2019 Te“ Period 12/17/18-01/16/19 Total Amperage Individual director 16.90 206 kWh $ 127 UNIT-286 10.70 5,150 kWh $ 1,929 234. On June 21, 2019, the property manager emailed the utility bills for 021519-03 1 819. Once again, both AC-l and AC-S consumed 0 kWh. No one knew Who 0r What was using 19,684 kWh electricity that was 47% 0f total electricity 0f the PROJECT. The mysterious electricity consumption was more than the usage by the 41- suites “all together”. UNIT-286 showed usage of 1,900 kWh that again was physically impossible for a lOO-Amp electrical panel. (In kWh) 12/17/18-01/16/19 01/16/19-02/14/19 02/15/19-03/18/19 0 Total 4 1 -suites 19,127 9,981 16,943 0 Total HVAC 9,547 3,089 5,235 o Unknown usage 16,371 32,253 19,684 TOTAL PG&E bills 45,046 45,325 45,863 o UNIT-286 5,150 1,539 1,900 First Amended Complaint, case no. 19CV356961 45 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 235. Sherry was tortured by the ridiculous and unreasonable allocation 0f the utility bills month after month. UNIT-286 tenant refused t0 pay for the impossible 5,000 kWh usage. Sherry must continue to work with the property manager Without alternative but t0 pay in filll. Month after month, the answer was “I have forwarded your email t0 the Board.” Sherry did not receive any reply from the individual Defendants who decided the allocation the PG&E bills “at their discretion” even it was known With certainty that the allocation was unfair, unreasonable, bad faith and unfair dealing. The individual Defendants continued t0 make decision “at their discretion” knowingly violated the CC&RS and abused their power t0 benefit themselves and damage the other residents. 236. The utility bills for March 19, 2019 to April 17, 2019, UNIT-286 usage was 835 kWh that was very similar t0 the equipment that C CUBE installed t0 measure the electricity consumption. However, AC-l and AC-S usage was still O kWh and no one knew who and what was using 21,498 kWh offl 0f the electricity for the entire PROJECT. 237. knew Who and What was using 21,498 kWh (47%), 22,223 kWh (43%) and 29,742 kWh (49%) 0f the electricity for the PROJECT. AC-l was fixed after April 17, 2019. The same problem with the utility bills for the following 3 months. N0 one However, AC-S the meter reading was still O kWh that was also physically impossible. For Period of 051719-061719, UNIT-189’s meter reading was 0 kWh. It was obvious an error too. Period (kWh) PG&E bill 41-Suites 5-HVAC Unknown UNIT-286 AC-l AC-S 03 1919-041719 45,733 16,682 7,553 21,498 47% 835 0 0 041519-051619 51,843 14,067 15,553 22,223 43% 967 3,731 0 051719-061719 60,166 15,138 15,285 29,742 49% 722 4,139 0 238. Sherry and several other residents continued t0 demand for explanation of how the allocation was done. 239. On August 16, 2019, the property manager emailed the utility bill for period 061819-071719 that was prepared by the Total Control System. The bill had 3 sections: (1) Inside suite electricity usage was based on the “actual” meter kWh reading; First Amended Complaint, case no. 19CV356961 46 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen (2) The cost of each AC system was allocated t0 the suites serviced bV that specific AC m; (3) Unknown usage was allocated based 0n the Common Area ownership percentage 0n Exhibit B 0f the CC&RS. 18,749 kWh 0f 3 1% 0f electricity continued t0 be a mystery. 240. After 3 years’ frustrating struggle and protest 0n the utility bills, Sherry was happy that the Total Control System finally came out a reasonable allocation of the AC in-suite electricity bill to have the 8 or 9 UNITS serviced by the AC system t0 share the electricity cost for the associated AC system. It meant that AC-l ’s 8 suites to share the electricity cost 0f AC-l, AC-Z’s 9 suites t0 share the electricity cost 0f AC-2. Period 06/18/19 t0 07/17/2019 - TCS Report of August 16, 2019 In-suite AC was allocated by the Electricity Cost 0f the Associated AC AC-l AC-Z AC-3 AC-4 AC-S 6,648 kWh 7,051 kWh 4,821 kWh 6,004 kWh 3,235 kWh Cost $1,735 Cost $1,840 Cost $1,258 Cost $1,567 Cost $844 UNITS ofAC-l UNITS 0fAC-2 UNITS 0fAC-3 UNITS ofAC-4 UNITS ofAC-S 112 $ 167 212 $ 131 228 $ 242 128 $ 292 163 $ 112 113 $ 213 213 $ 205 233 $ 170 133 $ 138 169 $ 112 118 $ 250 216 $ 155 236 $ 191 136 $ 226 188 $ 109 119 $ 213 218 $ 176 238 $ 128 138 $ 175 189 $ 112 122 $ 150 219 $ 205 239 $ 133 139 $ 167 269 $ 107 123 $ 212 222 $ 176 263 $ 133 166 $ 175 286 $ 103 126 $ 256 223 $ 205 266 $ 128 168 $ 195 288 $ 89 129 $ 271 226 $ 270 268 $ 128 186 $ 195 289 $ 97 229 $ 312 Bill $1,735 Bill $1,840 Bill $1,258 Bill $ 1,567 Bill $ 844 241. As discussed above in paragraph 237 that UNIT-189’s meter reading for Period 05 17 1 9-06 1 7 1 9 was 0 kWh. The individual Defendants agreed it was unreasonable and impossible. The individual Defendants decided t0 use the 6 months average usage 0fUNIT-189 for the missing reading for the period. However, the individual Defendants at their discretion did not think that AC-l and AC-S month after month used O kWh was unreasonable or impossible. The individual Defendants intentionally refused to take the same approach of average usage to correct the errors for First Amended Complaint, case no. 19CV356961 47 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen AC-l and AC-S for the prior 5 months. Again, the individual Defendants “at their discretion” refused t0 correct the erroneous meter readings for UNIT-286 0f 5 150 kWh. UNIT 286 was serviced by AC-S. It was believed the 5,150 kWh included the AC-S kWh usage. 242. Shockingly, the individual Defendants decided to throw out the allocation method used by the Total Control System on August 16, 2019 for period 0618 1 9-0717 1 9. The calculation 0f in-suite AC charge by having the 8 0r 9 suites serviced by the AC to pay for electricity cost of that AC (Id. 1W 239-240.) The individual Defendants invented a new calculation method “at their discretion” to specifically benefit the President and the Vice President 0f the ASSOCIATION. Reasonable or not, fair or not fair, was not the concern 0r consideration 0f the individual Defendants. 243. On October 15, 2019, the property manager emailed the “revised” utility bill for period 06 1 8 1 9-07 1 7 1 9, utility bill for period 07 1 8 1 9-08 1 8 1 9 and period 08 1 9 1 9- 091719. A11 3 bills did not use the calculation that the Total Control System used on August 16, 2019 (Para. 239.) for the associated suites t0 share the electricity cost of that AC. Period 06/1 8/19 t0 07/17/2019 - Defendants invented “at their discretion” AC-l AC-2 AC-3 AC-4 AC-S 6,648 kWh 7,051 kWh 4,821 kWh 6,004 kWh 3,235 kWh Cost $1,735 Cost $1,840 Cost $1,258 Cost $1,567 Bill $844 UNITS 0fAC-l UNITS 0fAC-2 UNITS 0fAC-3 UNITS 0fAC-4 UNITS 0fAC-S 123 $ 267 222 $ 159 263 126 $ 160 223 $ 136 266 129 $ 112 226 $ 52 268 59 166 $ 27 286 $ 341 1,122 168 $ 64 288 $ 39 29 186 $ 39 289 $ 122 112 $ 126 212 $ 21 228 $ 266 128 $ 483 163 $ 325 113 $ 250 213 $ 63 233 $ 186 133 $ 69 169 $ 137 118 $ 233 216 $ 96 236 $ 465 136 $ 182 188 $ 392 119 $ 89 218 $ 26 238 $ 79 138 $ 125 189 $ 448 122 $ 49 219 $ 42 239 $ 140 139 $ 143 269 $ 41 $ $ $ 229 $ 65 Bill $1,290 Bill $ 665 Bill $2,348 Bill $1,136 Bill $1,849 244. The individual Defendants adopted the “revised” method customized to First Amended Complaint, case no. 19CV356961 48 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 benefit the President and the Vice President. The President’s suite was serviced by AC-2 and the Vice President’s suites were serviced by AC-l. Using the new method, the electricity cost for AC-l was $1,735, but the 8 suites serviced by AC-l only need t0 pay $1,290. The electricity cost for AC-2 was $1,840, but the 9 suites serviced by AC-2 only need to pay $665. The electricity cost AC-3 was 1,258, but the 8 suites serviced by AC-3 were forced t0 pay $2,348. The electricity cost for AC-4 was $ 1,567 and the 8 suites serviced by AC-4 only need t0 pay $1,136. Finally, the electricity cost for AC-S was $844 but the 8 suites serviced by AC-S were forced to pay $1,849. 245. Each AC system was installed t0 service the designated suites. AC-l could not service suites associated by AC-2, AC-3, AC-4 0r AC-S. The only purpose of the new method was to benefit the individual Defendants t0 let AC-3 and AC-S 0f C CUBEs UNITS t0 subsidy AC-l, AC-2 and AC-4, the individual Defendants’ suites. 246. The PRESIDENT of the ASSOCIATION benefited the most from the revised “at their discretion” method. Using the method 0f the associated suites to share the electricity cost 0f the AC, UNIT-229 was allocated for a charge ofm. However, using the revised “at their discretion” method, UNIT-229 was allocated for onlyfl for in-suite AC usage. 247. Sherry and many other residents serviced by AC-3 and AC-S were extremely angry, frustrating, and depressed for the unfair and unreasonable allocation. AC-3 and AC-S’s suites were forced t0 pay a maj 0r portion of the electricity costs for AC-l, AC-2 and AC-4. AC-l, AC-2 0r AC-4 did not and could not provide any service to suites associated with AC-3 or AC-S. 248. The explanation from the property manager was that it was the decision 0f the individual Defendants. The individual Defendants had the power to make any decision “at their discretion”. A reasonable person would not agree that “at their discretion” meant the individual Defendants could knowingly Violate the CC&Rs and abuse their power to act unfairly, bad faith and unfair dealing to benefit themselves. 249. On December 4, 2019, despite the protest by many residents, the individual Defendants ordered to recalculated a_ll the utility bills for the entire year from January of 2019 using the “at their discretion” method purposely t0 benefit the individual First Amended Complaint, case no. 19CV356961 49 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants and punished and harassed Sherry or any residents/members Who dared t0 raise questions. 250. Most ironically, When the individual Defendants at their discretion to recalculate the 2019 utility bills, the individual Defendants also ordered t0 correct the meter report for Period 01 1619-021419. The so-called correction did not correct the known errors 0fAC-S 0r AC-l ’s 0 kWh usage. But to change the UNIT-286 usage t0 5 404 kWh. Again, it was out 0f 500% of the capacity of the lOO-Amp panel. Period (kWh) PG&E Bill 41-Suites 5-HVAC Unknown % UNIT-286 121718-01 1619 45,046 28,675 9,547 6,824 15% 5,150 01 1619-021419 45,325 20,351 9,997 14,975 33% 5,404 021519-031819 41,863 16,943 5,235 19,684 47% 1,900 031919-041719 45,733 16,682 7,553 21,498 47% 835 041519-051619 51,843 14,067 15,553 22,223 43% 967 051719-061719 60,166 15,138 15,285 29,742 49% 722 061819-071719 60,639 14,128 27,761 18,749 31% 739 071819-081819 68,540. 13,601 31,269 23,669 35% 714 081919-091719 58,648 14,928 33,099 10,620 18% 752 091819-101619 49,934 13,631 24,755 11,547 23% 736 101719-111519 48,623 15,598 18,855 14,170 29% 767 111619-121619 43,057 14,582 12,307 16,167 38% 669 121719-01 1520 39,943 14,238 10,575 15,128 38% 649 01 1620-021720 48,011 16,417 10,218 21,375 45% 769 021820-031720 44,565 14,690 12,529 17,345 33% 770 031820-041720 38,428 12,482 13,204 12,741 39% 744 251. On December 2, 2019, under the order “at the discretion” of the individual Defendants, the property manager recalculated the utility bills for the entire year using the particular “at the discretion” method t0 have AC-3 and AC-S t0 significantly subsidy AC-l (Vice president’s suites) and AC-2 (President’s suite) AC-l AC-2 AC-3 AC-4 AC-S 061819-071719 Cost $ 1,745 $ 1,851 $ 1,266 $ 1,576 $ 849 Bill $ 1,290 $ 665 $ 2,348 $ 1,136 $ 1,849 071819-081819 Cost $ 1,681 $ 1,872 $ 1,652 $ 1,520 $ 1,654 Bill $ 1,392 $ 763 $ 2,747 $ 1,320 $ 2,157 081919-091719 Cost $ 1,723 $ 2,004 $ 1,662 $ 1,569 $ 1,755 Bill $ 1,549 $ 830 $ 2,743 $ 1,368 $ 2,224 First Amended Complaint, case no. 19CV356961 50 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 091819-101619 Cost $ 1,408 $ 1,557 $ 1,170 $ 1,370 $ 1,463 Bill $ 1,159 $ 774 $ 2,163 $ 1,113 $ 1,759 101719-111519 Cost $ 985 $ 1,150 $ 762 $ 907 $ 905 Bill $ 832 $ 565 $ 1,330 $ 818 $ 1,164 252. “At the discretion” of the individual Defendants, the revised utility bill, for period 061819-071719, AC-2’s electricity cost was $1 85 1, but AC-2’s 9 suites together was billed for $665; AC-3’s electricity cost was $1,266, but AC-3’s 8 suites together was billed to pay $2,348; AC-S’s electricity cost was $869 and AC-S’s 8 suites was ordered to pay $1,849. 253. UNIT-286 in the size 0f 1,240 square feet was allocated With utility bills 0fM andM. At the same time, a larger 2,053 square feet UNIT owned by the President of the Board was assessed form andM for the corresponding periods. 254. Plaintiff was informed and believes, and thereon alleges that individual Defendants adopted the new calculation method to unfairly damage C CUBE and punish, harass, and bully Sherry. The individual Defendants refused t0 address 0r remedy such unreasonable actions. Instead, the individual Defendants retaliated against Sherry for raising questions about the governance of the ASSOCIATION, specifically the allocation of the utility bills. 255. Again and again, the only explanation provided to Sherry and several other members, was the individual Defendants had the unlimited and unrestricted power t0 make decision for ASSOCIATION’S business matters “at their discretion”. Basically, the individual Defendants abused their power by knowingly violated the CC&RS t0 conduct business 0r make decision in bad faith and unfair dealing. 256. As a result of the revision by the “at their discretion” 0f the individual Defendants, C CUBE’S 4-UNITs was billed for additional $8,087 for the year of 2019. In addition t0 the ridiculous bill for 5,150 kWh usage, now added the 2nd ridiculous 5,404 kWh usage. 257. Sherry must endure the torture t0 work With the ASSOCIATION and the individual Defendants month after month for the intentional “extreme and outrages” First Amended Complaint, case no. 19CV356961 51 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 conducts that n0 reasonable person could expected to endure it. The individual Defendants acted in deliberate disregard of the high degree 0f probability 0f causing the emotional distress and depression t0 Sherry. 258. The monthly torture continued. Every month, Sherry would email asking the reason why (1) Period 071819-08 1 819, AC-2’s cost was $1,872, but AC-2’s 9-suites were only billed $763 of41% of the AC-2 electricity cost. AC-3’s cost was $ 1,652, but AC-3’s 8 suites were billed $2,747 of 166% of the AC-3 electricity cost; (2) Period 081919-0917 19, AC-2’s cost was $2,004, but AC-Z’s 9 suites were only billed $830 of 41% 0f AC-2’s electricity cost. AC-3’s cost was $1,662, but AC3’s 8 suites were billed $2,743 0f 165% 0f the AC-3’s electricity cost; (3) Period 091819-101619, AC-2’s cost was $1,557, but AC-2’s 9 suites were only billed $774, and AC-3’s cost was $1,170, but AC-3’s 8 suites were billed $2,163. Month after month, at the discretion of the individual Defendants, AC-3 and AC-S’s suites were ordered to pay for AC-l and AC-2’s suites. 259. Every month, Sherry also emailed asking clarification of the mysterious high percentage 0f electricity 0f 14,975 kWh, 19,684 kWh, 21,498 kWh, 22,223 kWh, 29,742 kWh, 18,749 kWh, 23,669 kWh, etc. 260. The only answer month after month was “I have forwarded your emails t0 the Board. Thank you.” Sherry suffered the outrageous and extreme conducts from the individual Defendants that was intentional to harm Sherry When she must handle the invoices of the ASSOCIATIONS. 261. Tenant ofUNIT-286 decided not to take the nonsense 0f the utility bills any further and terminated the lease same as what tenant 0fUNIT-268 did. 262. July 4, 2020, the last attempt, Sherry emailed the property manager suggested using the 12 months average 0f 722 kWh, 739 kWh, 714kWh, 752kWh, 736kWh, 767 kWh, 669 kWh, 649 kWh, 769 kWh, 770 kWh, 744 kWh, t0 correct the ridiculous and impossible 5,150 kWh, 5,404 kWh and 1,900 kWh monthly usage. (See 1] 250.) The same way used by the individual Defendants to correct UNIT-189’s missing reading. (See 11 241.) 263. Sherry received the same reply that “I have forwarded your email t0 the First Amended Complaint, case no. 19CV356961 52 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Board. Thank you.” It was not that the individual Defendants had never corrected any known error. It was the individual Defendants intentionally and determined not t0 correct any error for C CUBE t0 torture and retaliate against Sherry. 264. July 20, 2020, the property manager suddenly asked Sherry t0 propose a solution. Sherry replied that the ASSOCIATION should use the calculation method that was prepared by the Total Control System on August 16, 2019 for the period 0f 061819- 071819 (Id. fl 239-240.) It had AC-l ’s 8 suites t0 pay for the electricity cost 0fAC-l , AC-2’s 9 suites t0 pay for the electricity cost of AC-2, etc. There was no reasonable justification t0 have AC-3 ’s 8-suites t0 pay for the electricity cost 0fAC-2 when AC3 ’s suites were not and could not be serviced by AC-2. 265. Property manager asked Sherry t0 prepare an Excel template. The template was already created and used by the Total Control System on August 16, 2019. The template the ASSOCIATION paid Total Control System t0 create. In a good faith, Sherry spent time to create the Excel model. Property manager could copy and paste the 41-suite and 5 AC’s kWh usages t0 the model. The program would automatically calculate (1) “at the discretion” version 0f billing (2) August 16, 2019, AC’s suites t0 pay for AC’s cost, and (3) adjustment. Sherry provided the Excel model to the property manager. Once again, Sherry never heard any reply from the individual Defendants. The only answer was still “The directors can make any decision ‘at their discretion.”’ 266. Sherry finally gave up before she had complete nervous breakdown. A. Intentional Infliction 0f Emotion Distress (Id. 1H] 152-157.) 267. “A cause 0f action for intentional infliction of emotional distress exists When there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, 0r reckless disregard 0f the probability 0f causing, emotional distress; (2) the plaintiff” s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ A defendant’s conduct is ‘outrageous’ When it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to First Amended Complaint, case no. 19CV356961 53 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3” inflict injury or engaged in With the realization that injury will result. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [95 Ca1.Rptr.3d 636, 209 P.3d 963]) 268. The individual Defendants’ conduct was extreme and outrageous. The individual Defendants relied 0n “at their discretion” t0 abuse their power for unreasonably, unfairly, in bad faith and unfair dealing to benefit themselves. 269. The individual Defendants knew Sherry handled the assessment invoices and collected the invoices from tenants 0f the 4-UNITs. The individual Defendants knew With certainty that UNIT-286 was physically impossible t0 use 5150 kWh or 5404 kWh in a month. It was confirmed by the electrician dispatched by the ASSOCIATION. The individual Defendants corrected the missing meter reading for UNIT-189, but refused t0 take the same 0r similar approach t0 correct the errors for UNIT-286 0r AC-l and AC-S. 270. The individual Defendants threw out the allocation calculated by the contractor to have the suites serviced by the AC system t0 pay for the electricity cost of that AC system. Instead, the individual Defendants “at their discretion” ill-intentionally forced AC-3 and AC-S t0 pay for significant portion of electricity cost for AC-l and AC- 2 t0 benefit themselves. This was different from the 5,000 kWh usage for UNIT-286. Once the faulty monitoring device was fixed, the reading would be correct. The ridiculous allocation method “at the discretion” 0f the individual defendants having suites serviced by and only by AC-3 and AC-S to pay for the electricity cost 0fAC-l and AC-Z, would g0 0n forever, month after month, year after year. 27 1. The individual Defendants acted intentionally disregard of the probability that Sherry had would suffer emotional distress in handling the ridiculous and unfair utility bills. The individual Defendants intended t0 cause Sherry emotional distress by their extreme and outrageous acts that no reasonable can be expected t0 endure it for “many years”. 272. The individual Defendants’ extreme and outrageous conducts of several years, directly caused Sherry severe depression and distress that would have happened t0 any ordinary person. /// /// First Amended Complaint, case no. 19CV356961 54 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JURISDICTION AND VENUE 273. This Court has jurisdiction over this dispute pursuant to California Code 0f Civil Procedure sections 410.10 and 410.50. 274. Venue is proper in the Superior Court for the County 0f Santa Clara, State of California, because the incidents, actions and inactions that are the subj ect of this action occurred in the County of Santa Clara and, on information and belief, Defendants, and each one, are residents of the County 0f Santa Clara, State of California. /// /// FIRST CAUSE OF ACTION (Malicious Prosecution) (Against all Defendants) 275. Plaintiff refers t0 the allegations contained in Paragraphs 15 through 90, and incorporates those allegations herein as though fully set forth. 276. At the direction of the Defendants, the ASSOCIATION brought the subj ect prior lawsuit against Plaintiff. The Defendants knew With certainty that Sherry Chen was not the Title Owner 0f the subject property, thus lacked the claim against her. The Defendants knew With substantial certainty that there were accounting errors but determined not to permit the property manager to reconcile the accounting records. The Defendants fabricated an alleged delinquent amount without any supportive records for a meritless and groundless lawsuit. 277. Further, at the direction of the Defendants, the ASSOCIATION continued the meritless and groundless lawsuit for 15 months after Plaintiffs produced and provided the official copies 0f County’s secured property tax bills. The tax bills showed Sherry Chen was not the Title Owners of the subject property. 278. The property manager reconciled and corrected the bookkeeping errors that C CUBE’s checks were erroneously credited t0 other UNITS. As a result of the corrections 0f the known errors, C CUBE’S accounts ended with a few thousand dollars First Amended Complaint, case no. 19CV356961 55 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 overpayment credit. But at the direction 0f the Defendants, the ASSOCIATION continued the meritless and groundless lawsuit for another one year. 279. The ASSOCIATION eventually dismissed the subj ect prior lawsuit Without prejudice. However, the dismissal is “permanent” and “in favor 0f” Sherry because Sherry was not the real party in interest. The lack 0f standing was asserted by the ORDER from Honorable Kirwin. The ASSOCIATON can never sue Sherry personally as a member for Violation ofASSOCIATION’S CC&RS and Bylaws. 280. There is no reasonable person in the circumstance would have believed that there were reasonable grounds t0 bring the lawsuit against Sherry Chen. 281. The Defendants brought the subject prior lawsuit against Sherry Chen not t0 seek succeeding 0n the merit 0f the groundless claims. The primary purpose 0f the subject prior lawsuit was intended to intimidate, shame, harass, bully, and to cause emotional distress and financial burdens 0f attorney fees t0 Sherry personally. 282. Plaintiffs were harmed. 283. Defendants’ conduct was the substantial factor in causing Plaintiff s harm. 284. Repeated. “The remedy 0f a malicious prosecution action lies t0 recompense the defendant Who has suffered out of pocket loss in the form of attorney fees and costs, as well as emotional distress and injury t0 reputation because 0f groundless allegations made in pleadings Which are public records.” (Sagonowsky v. More (1998) 64 Cal.App.4th 122, 132 [75 Ca1.Rptr.2d 118], internal citations omitted.) 285. Defendants’ conduct was malicious and oppressive warranting punitive damages. SECOND CAUSE OF ACTION (Intentional Infliction of Emotional Distress) (Against all Defendants) 286. Plaintiff refers to the allegations contained in Paragraphs 15 through 90, and incorporates those allegations herein as though fully set forth. First Amended Complaint, case no. 19CV356961 56 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 287. Repeated. “The malicious commencement of a civil proceeding is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration ofjustice. The individual is harmed because he is compelled t0 defend against a fabricated claim Which not only subjects him t0 the panoply of psychological pressures most civil defendants suffer, but also the additional stress 0f attempting to resist a suit commenced out 0f spite 0rM, often magnified by slanderous allegations in the pleadings.” (Merlet v. Rizzo (1998) 64 Ca1.App.4th 53, 59 [75 Ca1.Rptr.2d 83], internal citation omitted.) 288. Defendants’ conduct was extreme and outrageous. 289. Defendants intended to cause Plaintiffs emotional distress. 290. Plaintiffs suffered severe emotional distress. 291. Defendants’ conduct was the substantial factor in causing Plaintiff s severe emotional distress. 292. Defendants’ conduct was malicious and oppressive warranting punitive damages. THIRD CAUSE OF ACTION (Negligence) (Against Defendants ASSOCIATION, REYNOSO, EISCHEN, A. NGUYEN) 293. Plaintiff refers to the allegations contained in Paragraphs 91 through 138, and incorporates those allegations herein as though fully set forth. 294. The Defendants were negligent as detailed above. 295. The Defendants had the exclusive control of the HVAC systems. The Defendants was responsible for the maintenance and repairs 0f the rooftop HVAC systems. The special relationship established the affirmative obligation from the individual Defendants to the plaintiffs. 296. The individual Defendants acted unreasonably and recklessly to leave the faulty motor powered 0n and allowed the heavy pounding and blasting happened over 35,000 times t0 torture Sherry. First Amended Complaint, case no. 19CV356961 57 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 297. The Plaintiff were harmed. 298. Defendants’ negligence was a direct and proximate cause 0f Plaintiff’ s resulting harm. 299. Defendants’ negligence was a substantial factor in causing Plaintiff’ s harm. 300. Defendants’ conduct was malicious and oppressive warranting punitive damages. FOURTH CAUSE OF ACTION (Private Nuisance) (Against Defendants ASSOCIATION, REYNOSO, EISCHEN, A. NGUYEN) 301. Plaintiff refers to the allegations contained in paragraphs 91 through 114 and paragraphs 139 through 142, and incorporates those allegations here as though fully set forth. 302. Plaintiff had the exclusive possessory rights to her office. 303. Defendants’ failing t0 maintain the HVAC and failing to unplug the power of the malfunction motor permitted the unbearable condition t0 exist and continue. 304. A reasonable person would agree that over 35,000 times heavy pounding and explosive-like banging was harmful to a person’s health. Further, it was not only intrusive and offensive, but also an interfere With the comfortable enjoyment 0f the office. 305. The Defendants’ failing to act was unreasonable, negligent, and reckless. The Defendants permitted the obstruction and interference t0 exist and continue. 306. The condition substantially interfered With Plaintiff” s use and enjoyment of her office. 307. An ordinary person would be annoyed and disturbed by the condition permitted by the Defendants. 308. Plaintiff did not consent to the condition permitted by the Defendants. 309. Plaintiff was harmed. 3 10. Defendant’s conduct was the substantial factor in causing plaintiff s harm. First Amended Complaint, case no. 19CV356961 58 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31 1. Defendants’ conduct was malicious and oppressive warranting punitive damages. FIFTH CAUSE OF ACTION (Battery) (Against Defendants ASSOCIATION, REYNOSO, EISCHEN, A. NGUYEN) 3 12. Plaintiff refers t0 the allegations contained in paragraphs 91 through 114 and paragraphs 143 through 151, and incorporates those allegations here as though fully set forth. 3 13. The Defendants desired t0 allow the heaving pounding, banging, and shaking t0 continuem one member and a technician confirmed the cause. Plaintiff was “touched” and tortured by the over 35,000 times ofpounding and blasting with the intent t0 harm and offend Plaintiff. 3 14. Plaintiff did not consent to the touching. 315. Plaintiff was harmed and offended by the Defendants’ conduct that a reasonable person in the same situation would have been offended by the contact of unbearable noise. 3 16. Defendants’ conduct was malicious and oppressive warranting punitive damages. SIXTH CAUSE OF ACTION (Intentional Infliction 0f Emotion Distress) (Against Defendants ASSOCIATION, REYNOSO, EISCHEN, A. NGUYEN) 3 17. Plaintiff refers to the allegations contained in paragraphs 91 through 114 and paragraphs 152 through 158 , and incorporates those allegations here as though fully set forth. 318. Defendants’ conduct was extreme and outrageous. 3 19. Defendants intended to cause Plaintiffs emotional distress by the non-stop First Amended Complaint, case no. 19CV356961 59 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pounding and blasting noise. 320. Plaintiffs suffered severe emotional distress. 321. Defendants’ conduct was the substantial factor in causing Plaintiff s severe emotional distress. 322. Defendants’ conduct was malicious and oppressive warranting punitive damages. SEVENTH CAUSE OF ACTION (Negligence) (Against All Defendants) 323. Plaintiff refers to the allegations contained in Paragraphs 165 through 195, and incorporates those allegations herein as though fully set forth. 324. The Defendants were negligent as detailed above. 325. The Defendants had the exclusive control of the HVAC systems and roof. The Defendants were responsible for the maintenance and repairs of the rooftop HVAC systems and the building roof. 326. The special relationship established an affirmative obligation by the individual Defendants. 327. Every several months, When the water pan of the rooftop AC system was full, the water would pour into Plaintiff s office causing severe damages. 328. The water leaked for at least 7 times since 2016 for a few days, weeks, or more than one month. 329. The Plaintiff were harmed. 330. Defendants’ negligence and recklessness was a direct and proximate cause of Plaintiff” s resulting harm. 33 1. Defendants’ negligence was a substantial factor in causing Plaintiff’ s harm. 332. Defendants’ conduct was malicious and oppressive warranting punitive damages. First Amended Complaint, case no. 19CV356961 60 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EIGHTH CAUSE OF ACTION (Private Nuisance) (Against Defendants ASSOCIATION, REYNOSO, EISCHEN, A. NGUYEN) 333. Plaintiff refers to the allegations contained in paragraphs 165 through 192 and paragraph 196, and incorporates those allegations here as though fully set forth. 334. Plaintiff had the exclusive possessory rights to his office. 335. When the water pan of the rooftop AC system was full, the water instead 0f draining out through the roof drainage pipes but pouring into Plaintiff” s office like waterfalls. It did not just happen just once, twice. It happened 7 times since 2016 for a few days t0 more than a month. 336. A reasonable person would agree it was unreasonable that the water from roofpoured into the office below. The leaks occurred every few months. It was highly possible that mold could have developed by the water damage and moisture accumulated above the ceiling tiles and below the roof. Any “mold” could be harmful and “dangerous” t0 a person’s health. Further, it was not only intrusive and offensive, but also an interfere With the comfortable enjoyment 0f the office. 337. The Defendants’ failing t0 act was unreasonable, negligent, and reckless. The Defendants permitted the obstruction and interference to exist and continue. 338. The condition substantially interfered With Plaintiff s use and enjoyment of his office. 339. An ordinary person would be offended, annoyed, and disturbed by the condition permitted by the Defendants. 340. Plaintiff did not consent to the condition permitted by the Defendants. 341. Plaintiff was harmed. 342. Defendants’ conduct was the substantial factor in causing plaintiff s harm. 343. Defendants’ conduct was malicious and oppressive warranting punitive damages. First Amended Complaint, case no. 19CV356961 61 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NINTH CAUSE OF ACTION (Battery) (Against All Defendants) 344. Plaintiff refers to the allegations contained in paragraphs 165 through 192 and paragraph 197, and incorporates those allegations here as though fully set forth. 345. The Defendantsm1 to allow the water from the water pan of the rooftop AC system to continue t0 pour into Plaintiff s office. Plaintiff himself, his belongings and his office were “touched” and soaked by the waterfalls With the intent t0 harm and offend Plaintiff. 346. Plaintiff did not consent t0 the touching. Plaintiff was harmed and offended by the Defendants’ conduct that a reasonable person in the same situation would have been offended by the contact 0f the waterfalls from the roof. 347. Defendants’ conduct was malicious and oppressive warranting punitive damages. TENTH CAUSE OF ACTION (Trespass t0 Land) (Against All Defendants) 348. Plaintiff refers to the allegations contained in paragraphs 165 through 192 and paragraphs 198 and 204, and incorporates those allegations here as though fully set forth. 349. The ASSOCIATION owned the rooftop HVAC systems. The Defendants controlled the routine maintenance and repairs 0f the HVAC systems and the roof 0f the building. The roof drainage, HVAC systems and HVAC’s water pan caused the water t0 pour into Plaintiff s office since 2016 every few months. 350. Plaintiff did not give permission for the water entering his office. In fact, Plaintiff not only objected, but also protested against the water pouring into his office from roof. First Amended Complaint, case no. 19CV356961 62 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 351. 352. 353. damages. 354. Plaintiff was harmed and offended. Defendants’ conduct was the substantial factor in causing the harm. Defendants’ conduct was malicious and oppressive warranting punitive ELEVENTH CAUSE OF ACTION (Intentional Infliction 0f Emotion Distress) (Against All Defendants) Plaintiff refers t0 the allegations contained in paragraphs 205 through 272, and incorporates those allegations here as though fully set forth. 355. 356. 357. 358. Defendants’ conduct was extreme and outrageous. Defendants intended t0 cause Plaintiffs emotional distress. Plaintiffs suffered severe emotional distress. Defendants’ conduct was the substantial factor in causing Plaintiff s severe emotional distress. 359. damages. /// /// Defendants’ conduct was malicious and oppressive warranting punitive PRAYER WHEREFORE, Plaintiff prays declaratory relief and judgment against Defendants, and each 0f them, as follows: For an award 0f actual damages for costs associated With water damages and replacement of Plaintiff” s office ceiling tiles, furniture, books, personal belongings, painting, carpet, wall, etc., as shall be established at time of trial; For an award 0f actual damages for costs associated With water damages 0f inspection above ceiling tiles 0f mold-free environment as shall be First Amended Complaint, case no. 19CV356961 63 Chen V. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen H NNNNNNNNNp-Ar-nt-ar-An-Hy-Awp-Av-I OOQQUI-PUJNv-‘OOOONmm-PWNt-‘O \DOOVONUIAUJN established at time 0f trial; 3. For an award of compensatory damages based on lost working hours in such amounts as shall be established at trial; 4. For an award of compensatory damages based on 10st income in such amounts as shall be established at trial; 5. For exemplary and/or punitive damages; 6. For treble damages; 7. Any other relief the Court may deem just and proper. DATED: July 15, 2021 /7’ML SHERRY CHEN, pro se By: O'LJCMCLLLL CLQW CHIA-CHIEH CHEN, pro se First Amended Complaint case no. 19CV356961 64 Chen v. Lundy Center Association, Inc., Reynoso, Eischen, A. Nguyen, Yeh, T. Nguyen Exhibit 1 SUM-1 OD SUMMONS (ClTACION JUDICIAL) NOTICE To DEFENDANT: (Awso AL DEMANDADO): SHERRY CHEN dba C CUBE INVESTMENT LLC. and DOES l through 25 You ARE BEING SUED BY PLAINTIFF: (Lo ESTA DEMANDANDO EL DEMANDANTE): LUNDY CENTER ASSOCIATION. INC. FOR COURT USE ONLY (SOLO PARA USO DE LA CORYE) E-FILED 5/31/2018 1:21 PM Clerk of Court Superior Court of CA, County of Santa Clara 1BCV328953 Reviewed By: E. Fang Envelope: 1575447 below. case. There may be a court form that you can use for your response. You can find these court forms a may be taken without furthet warning from the court. conflnuacidn. Puede encontrar eslos lormulan’os do Ia cone y mas informacién en e! Cenlro do Ayuda de Ias Cortes que Ie dé un formulan'o de exencién de pago de cuolas. Si no presenta su respuesta a lfempo. puede podré quitar su sueldo. dinero y bienes sin mas advertencia. programa de servicios legales sin fines de Iucro. Puedo encontrar estos grupos sin fmos d9 Iucro en e (www.lawhelpcalifornia.org). en e! Centro de Ayuda de Ias Codes de Catifomia. {W.sucortesagov) pagar el gravamen de la cone antes de qua Ia code puoda dosechar cl caso. NOTICEI You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone cat! will not protect you. Your written response must be in proper legal form if you want the court lo hear your Online Self-Help Center (www.courtinfo.ca.gov/selfholp). your county law library. or the courthouse nearest you. If you cannot pay the filing fee. ask the court clerk for a fee waiver form. If you do nol me your response on time. you may lose the case by default. and your wages. money. and property There are olher legal requirements. You may want to call an attorney right away. If you do not know an attorney. you may want to call an attorney reIerral service. ll you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at tho California Legal Services Web site (www.Iawhelpcali!omia.org). the California Courts Online SeIf-Help Center (www.courtinfo.ca.gov/selflnelp). or by contacting your local court or county bar association. NOTE: The court has a stalulory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the courl will dismiss the case. [AVIS0! Lo han demandado. Si no responds dentro de 30 dies. Ia cone puede decidir en su contra sin escuchar su versidn. Lea Ia informacién a Tienc 30 DIAS DE CALENDARIO dospués de qua la entraguen esta cilacio'n y papeles legales para presenter una respuesta por escn’lo en esta cone y hacer que se entregue una copia al demandante. Una cana o una llamada telefénica no Io prolegen. Su respuesta par escn‘lo liene qua eslar on Iormalo legal correcto si desea que procesen su caso on Ia cone. Es posible qua haya un formulario que usted pueda usar para su respuosla. bibliotoca do Ieyes de su condado o en la code quo Ia quode més corca. Si no puodo pager Ia cuota d9 presantacldn, pida al secretario do la carle Hay otros requisilos legalos. Es recomendable qua flame a un abogado inmedialamonto. SI no conoce a un abogado. puode Ilamar a un servicio de remisién a abogados. Si no puede pagar a un abogado. es posible que cumpla con los requisites para obtener servicios legales gratuilos do un colegio de abogados locates. AVISO: Por fey. la cone liens derecho a reclamar Ias cuotas y (as costos exentos por imponer un gravamen sabre cualquier recuperacién de S10.000 O mas de valor recibida mediante un acuerdo o una concesidn de arbitraje en un caso d9 derecho civil. Tcene que nd more intormation at the California Courts de California (mvw.sucorte.ca.gov). en Ia perder e! caso por Incumplfmlento y Ia corle Io Isilio web do California Legal Services. o poniéndose en contacto con Ia corfe o e! The name and address of the court is: ??'seMug? . (El nombre y direccio‘n de Ia cone es): Santa Clara ‘ ""’°’° 1é°"CV328953 191 North First Street. San Jose, California 951 13 The name. address. and telephone number of plaintiff's attorney. or plaintiff without an attorney. is: (El nombre, la direccién y e! namero de teléfono del abogado de! demandante, o de! demandanle que no tiene abogado, es): James P. Hillman, White & MacDonald, LLP, 1530 Thc Alameda, #215, San Jose, CA 95126, 408-345-4000 . DePUtYDATE 5/31/2018121 PM Clerk ofCourt C'erk-bv E.Fang Manta) (Fecha) (Secretario) (For proof of service of this summons, use Proof of Service of Summons (form POS-010).) (Para prueba de entrega de esfa citation use e! formulario Proof of Service of Summons. (POS-010)). E NOTICE TO THE PERSON SERVED: You are served '5 A” "W“ 1.D as an individual defendant. -- . Ir 3,E on behalfof (specify): under:E CCP 416.10 (corporation)E CCP 416.20 (defunct corporation)E CCP 416.40 (association or partnership)E other(specify): 4.E by personal delivery on (date): 2.m as the person sued under the fictitious name of (specify):D'BA Q C DEEmvamwr LLQ CCP 416.60 (minor) E: CCP 41 6.70 (conservatee)D CCP 416.90 (authorized person) Page 1 o! 1 FO'I“ AOOD‘Od 1°! Manda!” U50 Code ol Civil Procoduto §§ 412.20. 465 Judicial Council ol Calitornia SUMMONS www.comfinlacmgov sumaoo [Rom July I. 2009) IO ll 12 l3 l4 15 16 l7 l8 l9 20 2| 24 25 26 27 28 E-FILED WHITE & MacDONALD, LL}: 5/25/201 8 1:45 PM Rob D. MacDonald, Esq. #129069 Clerk 9f Court Steven M. White, Esq. #161258 Superior Court ofCA. James p. Hiuman, Esq. #217946 County of Santa Clara 1530 nxe Alameda, Suite 215 18CY328953 L San Jose, CA 95 125 Rewewed By: L. Quach-Marcel ana Telephone: 408-345-4000 Facsunile: 408-345-4020 Attome s for Plaintifi, LUNDY CENTER ASSO IATION, INC. SUPERIOR COURT OF CALEORNIA, COUNTY 0F SANTA CLARA LUNDY CENTER ASSOCIATION. INC» Case No: 180V328953 Plaintifl‘, vs. COMPLAINT FOR INJUNCTION RELIEF] MANDATORY WJUNCTION, SIERRY CHEN dbaC CUBE DECLARATORY RELIEF, NUISANCE, INVESTNENT LLC, NEGLIGENCE, AND MONEY DUE and DOES 1 through 25, Inclusive, Limited Jurisdiction Under $25,000 Defendants. Plainn'fi‘, LUNDY CENTER ASSOCIATION, INC., C‘Lundy” or “Associaflon”) alleges as follows: FIRST CAUSE OF ACTION (INJUNCTIVE RELIEF/MANDATORY INIUNCTION) 1. PlaintiffLUNDY CENTERASSOCIATION, INC. (“Association”) is, and at all times herein mentioned was, a non-profit mutual benefit corporation existing under the laws ofthe State of California, and the owners’ associafion for the professional common interest development commonly known as the Lundy Center (“Project”). The Associafion has the right and duty to govern, manage and maintain the Project. 2. Defendant Sl-ERRY CHEN dba C CUBE INVESTMENT LLC (“Chen") and Does l through 25, inclusive, are and at all times mentioned herein, were residents of Santa Clara County, California. Plaintifl does not know the true names of DOES l through 25, inclusive. Plaintiff is COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES 1 10 12 l3 l4 15 l6 l7 18 20 2| 22 23 24 25 26 27 28 infomed and believes and alleges that at all times herein mentioned, each of these Defendants are and were an owner, tenant, resident or the agent, servant, reprwentative, and/or employee of the owners and/or Defendants and were acting within the scope and course of such agency, service, representation and employment. 3. The Lundy Center Project is a commercial common interest development as defined in California Civil Code §§4100, 6531 and 6534. All properties within the Project, including individually owned lots, units, condominiums and common areas, are subject to the Declaration of Covenants and Restrictions Establishing a Plan for Condominium Ownership (“CC&Rs”). which were duly recorded in the Ofiice ofthe County Recorder ofSanta Clara County on April 25, 2006, as Document No. 18901781. A First Amendment to the CC&Rs was recorded in the Office of the County Recorder ofSanta Clara County on July l9, 201 l, as Document No. 21248779 and upon this recording, the First Amendment was incorporated into, and became a part of, the CC&Rs. 4. Defendant Chen is the record owners of four (4) Units at the Project and these Units are commonly known as: 1879 Lundy Avenue, Units 238, 266, 268, 286, San Jose, CA 9513'1 (collectively, the “Units"). The Units located within the Project and subject to the CC&R3, as well as the Association’s other Governing Documents.‘ . 5. The true names and capacities, whether individual, corporate. associate, partner or otherwise, ofDOES 1 through 25, inclusive, are unknown to PlaintiffAssociation, who therefore sues said Defendants by such fictitious names. Association will move to amend this Complaint to show their true names and capaciu'es when the same have been ascertained. 6. The covenants and restrictions contained in the CC&Rs constitute equitable servimdes under Civil Code §§5975 and/or 6856 that inure to the benefit of, and are binding on, all Owners of units within the Project, including the Defendants. 7. The CC&Rs and the Association’s Bylaws create and establish the Association as the governing body for the management, adminisuation and operation of the Project. Per the language ' As used herein, the term “Governing documen ” meansWe CC&R3, Bylaws, Operating Rules and the Articles of Incorporation which govern the operation ofthe Association and Project. Additionally, the term “Governing Documents" means and refit: to Civil Code Sections 4150 and 6552. COMPLAINT FOR INJUNCTIVE RELIEFAND DAMAGES 2 IO ll [2 l3 l4 IS l6 l7 18 l9 20 2| 22 23 24 25 26 27 of the CC&Rs, as well as Civil Code §§5975 and/or 6856, the Association is authorized to enforce the CC&Rs as well as the rest ofthe Governing Documents. 8. Article l, Secflon 1.15 of the CC&R3 requires all owners at the Project, including Defendant, to pay their share of“common expenses” in relation to units owned. It provides: "Common Expenses" means the actual and estimated expenses of managing, maintaining, repairing, replacing and operating the Common Area and any reasonable reserve for such purposes as found and determined by the Association (including all costs and expenses incun'ed under covenants, conditions, easements and resn'ictions existing and of record prior to the recordation of this Declaration ("Prior Restricfions")) and all sums designated Common Expenses by or pursuant to the Project Documents (defined in Section 1.45). Common Expenses shall also include the actual and estimated expenses of periodic maintenance and testing of any built-in burglary and fire protection devices, water and sewer systems, sprinkler systems, or equipment (including telephone equipment and lines), the costs of water, elecuicity, gas and other service to the Common Area and the Units. With regard to utility services provided to the Units, Declarant shall have the right to install submeters for each Unit to measure the amount of elecu'icity and gas and any other utility service used in each Unit on a monthly or other periodic basis. The cost of the elecu'icity and gas used in each Unit, if not measured by meters installed by a utility company, will be based on the submeter information and shall be the responsibility of the Owner of such Unit, and such costs shall not be allocated based on such Owner' s interest in the Common Area. Although it is the intent of this Declaration to allocate all Common Expenses ofthe Common Area to each Owner based on its percentage interest in the Common Area, this Declaration acknowledges that in certain instances, certain expenses should be home by only some ofthe Owners (for example, one Owners excessive use of water when compared to other similarly situated Owners or one Owner causing damage to some portion of the Common Area, either by neglect or overuse). In such case, the Association shall have the sole discretion to determine (1) when such an event occurs, and (2) the amount to be allocated to one or more Owners in such event. The Association's detennination ofwhether an expense is allocablc to all the Owners or to particular Owners shall be conclusive and binding on all Owners absent obvious enor. The Association, if it deems feasible, shall have the right to install separate meters or other monitoring devices in case of any dispute as to the responsibility for paying for any particular service, and the Owners involved in the dispute shall pay for the same in proportion to their interests. mMPLMNT FOR NUNCTIVE RELIEF AND DAMAGES 3 l0 12 13 M IS 16 l8 I9 20 2| 22 23 24 25 26 27. 28 9. Article l, Section 4.1 of the CC&Rs creates assessment obligations requiring each owner ofa unit at the Project, including Defendant by way ofher ownership ofthe Units, to promptly make payment ofthe assessments to the Association: Declarant and each Ownerby acceptance ofa deed foraCondominium, whether or not it shall be so expressed in such deed, covenants and agrees: (l) to pay to all Assessments, and (2) to allow the Association to enforce any Assessment Lien established hereunder by nonjudicial proceedings under a power ofsale or by any other means authorized by law. The Regular Assessments, Special Assessments, and Cost Reimbursement Assessments together with interest, late charges, collection costs and reasonable attorneys) fees, shall be a charge on the Condominium and shall be a conflnuing lien upon the condominium against which each such Assessment is made, the lien to become efi'ective upon recordation ofaNotice ofDelinquent Assessment. Each such Assessment, together with interest, late charges, collection costs, and reasonable attomeys' fees, shall also be the personal obligation of the Person who was the Owner ofsuch Condominium at the time when the Assessment fell due. The personal obligation for delinquent Assessments shall not pass to its successors in title unless expressly assumedby them.No Owner shall be exemptfi'om liability forpayment of Assessments by waiver of the use or enjoyment of any of the Common Areas or by the abandonment ofthe Owner's Condominium. 10. When an assessment is payment is not timely made, Axticle 4, Secfion 4.10 of the CC&Rs makes Defendant responsible for late penalties and interest charges as follows: Effect of Nonpayment of Assessments. Any Assessment not paid within ten (1 O) days afler the due date shall bear interest at the rate of tenpercent (10%) perannum commencing thirty (30) days after the due date until paid and shall incur a late payment penalty in the amount of ten percent (10%) of the delinquent Assessment or $10, whichever is greater. ll. Article 6, Section 6.1 of the CC&Rs requires Defendant to reimburse the Plaintiff Association utility costs as follows: Conunon Area utilifim costs and utiliu'es included on a master meter and billed to the Association shall be included in Assessments and shall be divided as set forth in Section 4.7, unless the Associafion makes a special allocation of such costs as a Cost Reimbursement Assessment. Ifthe Association believes that an Owner is using an excessive amount of any utility service that is not separately metered to the Units, the Association may assess the Unit Owner for the costs ofthe amount of such ufility service that is greater than the average amount used by the COMPLAINT FQR-JNJUNCTWB REAR? AND DAMAGES 4 10 ll 12 l3 l4 15 l6 l7 l9 20 2| 23 24 25 26 27 28 other Unit Owners as a Cost Reimbursement Assessment. The Association may install or have installed separate meters or submeters to measure the usage of such utility service, and charge the costs of installation and operation ofany such separate meter or submeter to the Unit which uses excessive amount of such utility service as a Cost Reimbursement Assessment. 12. Article 6, Section 6.4 ofthe CC&Rs provides as follows: Each Unit shall have a separate meter for its elecuicity and gas (if any) servicing the Unit, and the Owner shall be responsible for payment of all charges based on said meters. Each Owner shall maintain and repair the Utilities Facilities servicing only its Unit, except for those facilities or portions thereofmaintained by utility companies or the City. Owners shall maintainthe heating and air conditioning system (ifany) servicing their respective Units, and all light fixtures and appliances therein, and pay all utility bills metered therefor. 13. Article 7, Secfion 7.2 prohibits any nuisance activity by owners such as Defendant: No noxious, illegal, or seriously offensive activities shall be carried on upon any Condominium, or in any part of the Property, nor shall anything be done thereon which may be or may become a serious annoyance or a nuisance to or which may in any way interfere with the quiet enjoyment of a Unit, or which shall in any way increase the rate of insurance for the Project, or cause any insurance policy to be cancelled or to cause a refusal to renew the same, or which will impair the strucmral integrity ofany building, orwhich will endanger the lives or health ofoccupants. 14. Article 9, Section 9.9 of the CC&Rs requires all owners, including Defendant, to comply with all covenants, conditions and restrictions of the CC&Rs and it gives the Association certain enforcement authority in order to gain and maintain compliance: Owners' Compliance. Each Owner, tenant or occupant of a Condominium shall comply with the provisions ofthis Declaration, and (to the extent they are not in conflict with the Declarafion) the Articles and Bylaws, and the decisions and resolutions ofthe Association or the Board, as lawfully amended fi'om time to fime. Failure to comply with any such provisions. decisions, or resolutions shall be younds for an action (l) to recover sums due, (2) for damagw, (3) for injunctive relief. (4) for costs and attorneys fees, or (5) any combination ofthe foregoing. Generally, Article XIV, Section 14.6 authorizes the Associau'on to recover its attorney’s fees in any action to enforce the provisions of the CC&Rs. Further, The Association’s Governing Documents COMPLAINT FOR INJUNCI'IVE RELIEFAND DAMAGES 5 10 ll l2 l3 l4 15 l6 l7 18 l9 20 2] 22 23 24 25 26 27 28 permit the Association to fine Lot owners for violations ofthe Governing Documents and to the extent the Defendants were fined. Association has a right to recover those fine amounts. 15. Article 9, Secfion 9.1 of the CC&Rs provides the Association with enforcement authority and authorizes it to recover its attorneys’ fees in any action to enforce the provisions ofthe CC&Rs and Governing Documents: Enforcement. The Association, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens, and charges now or hereafier imposed by the provisions of this Declarafion, and the Bylaws. and in such action shall be entitled to recover reasonable attorneys' fees as axe ordered by the Court. Failure by the Association or by any Owner to enforce any covenant or resu'iction herein contained shall in no event be deemed a waiver ofthe right to do so thereafier. In addifion, Civil Code Section S975 provides that a prevailing party in an action to enforce the Governing Documents shall be awarded its reasonable attomeys’ fees and costs. 16. Pursuant to the CC&R3, Defendant Chen is responsible for thepayment ofassessments and costs and expenses with respect to each of the Units. Association provides account statement, invoices and demands for payment to all owners and members of the Association on a monthly basis in order to collect monies owed for the assessments and common expenses as described above. Defendant Chen received monthly statements, invoices and demands for payments for her Units on a monthly basis since at least January 2017 through, and including, April 2018. prite the statements, invoices and demands, Defendant Chen has failed to make payment for all assessments and common expenses incurred in 2018 in the amount of at least $8,783.24. 17. Contrary to the Association’s request and demand, Defendants, and each of them, refined to make payments as required by the CC&Rs. Despite the Association’s demands under the CC&Rs, Defendants have taken no corrective actions concerning their violations of the CC&Rs and remain delinquent in the payment ofassessments and expenses. As a result, Defendants, and each of them, remain in violation ofthe CC&Rs. l8. As a proximate result of Defendants’ breach ofthe CC&Rs, Plaintifl Association has incurred and will continue to incur attorney’s fees. costs and expenses in connection with the enforcement ofthe CC&Rs and Defendants’ willing violation thereof. Under Article 9 ofthe CC&Rs COMPLAINT FOR I'NJUNCTWB RELIEF AND DAMAGES 6 10 ll 12 l3 l4 15 l6 l7 18 l9 ‘20 2 l 22 23 24 25 26 27 28 and Civil Code Secu'on 5975, the Association is entitled to recover attorney’s fees, costs and expenses incurred in enforcing the CC&Rs. l9. By way of the continued violation of the CC&Rs, Defendants have interfered with. and will continue to interfere with, the other members of the Association and their right of quiet enjoyment and use of their properties at the Project. Defendants continued violations ofthe CC&Rs have interfered with, and will continue to interfere with, Association’s ability to govern, manage and maintain the Project. Defendants’ continued violafions of the CC&Rs are annoying, ofi‘ensive and constitute a nuisance as toward the Association and its members. 20. Continued violation ofthe CC&Rs by Defendants, and each ofthem, will irreparably harm PlaintifiAssociation and its members by diminishing the desimbility, attractiveness, usefulness, and economic value ofthe units and common areas located within the Project and by making future enforcement ofthe CC&Rs with respect to similar violations impractical, ifnot impossible. 21. The violations of the CC&Rs by Defendants described herein are repeated and continuous and would, therefore, require a multiplicity ofactions and constitute an undue hardship to PlaintiffAssociation and its members ifpermitted to continue unabated. 22. PlaintiffAssociation has no adequate remedy at law to compel Defendants to comply with the CC&Rs, nor-can the Association be compensated adequately for the injuries by an award of damages, in that it will be impossible for the Association to determine the precise amount ofdamage it will suffer ifDefendants’ conduct is not restrained; the usefulness and economic value ofthe Project will be substantially diminished; efi‘orts ofother owners to sell or lease their units will be prejudiced; and other owners ofunits (members ofthe Association) will be subjected to additional costs and fees so that utility service is not tenninated at the Project and so that the Association can manage and maintain the Project because Defendants and their Units, which have been, and remain, in violation of the CC&Rs for failure to pay, and continue to pay, their assessments and expenses. Association requests the Court to direct Defendants to comply with the provisions ofthe CC&Rs. WHEREFORE, Plaintifi' Association prays for judgnent against Defendants, and each of them, as hereinafier set forth. III COMPLAINT FOR INJUNCI'IVB RELEF AND DAMAGES 7 10 ll 12 13 I4 IS 16 l7 18 l9 20 2| 22 24 25 26 27 28 SECOND CAUSE OF ACTIOE (DECLARATORY RELIEF) 23. Plaintiff Association incorporates herein by reference Paragaphs l through 22 ofthe First Cause ofAction as though fully set forth herein at length. 24. An actual contoversy has arisen between Plaintifi‘ and Defendants, in that Plaintiff maintains that the CC&Rs require Defendants to make, and continue to make, timely payment oftheir assessments and portion ofthe common expenses and Defendants have failed, and continue to fail, to make these payments ina timely manner. Defendants, and mch ofthem, have refused to acknowledge their payment obligations and have refused to comply with the demand of the Plaintifi‘ Association, as well as the requirements ofthe Project’s Governing Documents, to make these payments. 25. Plaintiffdesires ajudicial detennination and declaration ofPlaintiff’s and Defendants’ respective rights and duties under the CC&Rs. Specifically, Plaintifi' requests the determination of whether Plaintifi' is entitled to enforce against Defendants. and each ofthem, the terms of its CC&Rs and to require timely payment of assessments and expenses. Such a declaration is necessary at this time so that Plaintifi‘can determine its rights under the CC&Rs. Accordingly, Plainfifi'requests that this Court adjudicate the conuoversy, interpret the CC&Rs and issue its declaration of the rights, duties and obligafions ofthe parties under the CC&Rs. WHEREFORE, Plaintifi‘ prays for judgment against Defendants, and each of them, as here‘mafier set forth. THIRD CAUSE OF ACTION (NUISANCE) 26. Plaintiff re-alleges and incorporates herein by reference each and every allegation contained in Paragraphs l through 25 of the First and Second Causes of Action as though fillly set forth herein at length. 27. For a period of time, continuing through present, Plaintifi‘ has sufi‘ered injury to the use and enjoyment of its common area and the Project as a whole as a result of the Defendants, and each ofthem, arid their failure to comply with the CC&Rs and make timely payment ofassessments and their share ofcommon expenses. Additionally, Plaintifi’s members have sufiered injury to their COMPLAINT FOR INJUNCTIVB RELIEF AND DAMAGES 8 IO ll 12 l3 14 15 l6 l7 18 l9 20 21 24 25 27 28 use and enjoyment of the common area. the Project and their units as a result of the Defendants’ failure to make payment as alleged herein and this constitutes a nuisance within the meaning of California Law. 28. Plaintifl‘ has given notice to Defendants to the damage caused by the nuisance, and failure to make payment but Defendants have steadfastly refused and continue to refuse to abate the nuisance. 29. As a proximate malt of the nuisance created by Defendants, Plaintiff has been damaged, and will be damaged, in an amount as yet unasoertained. WHEREFORE, Plaintifl' prays for judgment against Defendams, and each of them, as hereinafier set forth. FOURT USE OF ACTIO (NEGLIGENCE) 30. Plaintifi' Association incorporates herein by reference Paragraphs 1 through 29 of the First, Second and Third Causes ofAction as though fully set forth herein at length. 31. Plaintifi‘ is informed and believes and thereon alleges that Defendants, and each of them, were, and are, the ownets and/or occupants ofthe Units. 32. By way ofthe express terms and conditions set forth in the recorded CC&Rs, Plaintifl‘ is informed and believes and thereon alleges that Defendants, and each ofthem, knew or should have known that the Units must be in compliance with the Association’s Governing Documents, including the CC&Rs, and that as owners and occupants ofthe Units, the Defendants had a duty to ensure that compliance. 33. The Defendants, and each of them, were under a duty to exercise ordinary care to comply with the CC&Rs and Governing Documents by making sure all payments ofassassments and common expenses were paid pursuant to the CC&Rs. 34. Defendants. and each of them, failed and neglected to comply with the Governing Documents, including the CC&Rs, in refining to make payment of assessments and expenses as required by the CC&R3. COMPLAINT FOR NUNCI'IVB RELIEF AND DAMAGES 9 lO ll l3 l4 IS l6 l7 l8 l9 20 2| 22 23 24 26 27 28 35. That as a direct and proximate result ofthe foregoing negligence, Plainn'fi’has suffered and will continue to suffer damages in seeking to gain the compliance of defendants, and each of them, with the Governing Documents, including the CC&Rs. WHERBFORE, Plaintifl Association prays for judgnent against defendants, and each of xhem, as hereinafier set forth. FIFTH CAUSE OF ACTION (MONEY DUE) 36. Plaintifi‘ re-alleges and incorporates herein by reference each and every allegation contained in Paragraphs 1 through 3S of the Fimt, Second, Third and Fourth Causes of Action as though fully set forth herein at length. 37. Within the last year, defendants have become indebted to Plaintiff in the sum of at least $8,783.24 for money owed to Plaintifi'pursuant to the CC&R3. 38. Plaintifi'has demanded payment fiom defendants. 39. No payment has been made by defendants to Plaintifi and there is now owing the sum of$8,783.24, an amount that increases on a daily and monthly basis per the CC&Rs. WHEREFORE, Plaintiffdemandsjudgment against Defendants, and each ofthem, as follows: l. For mandatory injunction directing Defendants to timely pay, and continue to pay, all assessments and common expenses as required by the CC&Rs and enjoining Defendants fiom failing to make such timely payments in the future; 2 For damages in the amount ofat least $8,783.24 recoverable per the CC&Rs; 3. For incidental damages in an amount to be established according to proofat trial; 4 For declaration ofthe rights, duties, and obligations ofthe parties under the CC&Rs; 5. For an award of attorney’s fees. costs, fines and expenses per statute and the CC&R3 in accordance with proof; and 6. For such other and further relief as the Court may deemjust and proper. /// /// /// COMPLAINT FOR NJUNCI'WB RELIEFMD DAMAGES 10 10 . l3 l4 15 16 l7 18 l9 20 2| 24 26 27 28 . DATED: May 24, 2018 WHITE & MaoDONALD, LLP BY ”PW P. HILLMAN, ESQ. meys for Plaintifi‘ COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES I I Exhibit 2 2 3 4 5 6 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SANTA CLARA 10 1 1 LUNDY CENTER ASSOCIATION, INC, Case No. 201 8-CV-328953 12 Plaintiff, ORDER RE: DEMURRER TO THE 13 SECOND AMENDED CROSS- 1 4 VS. COMPLAINT 1 5 16 SHERRY CHEN dba C CUBE INVESTMENT 17 LLC, 18 Defendant. 19 AND RELATED CRoss-ACTION 20 21 The demurrer to the Second Amended Cross-Complaint by cross-defendant Lundy Center 22 Association, Inc. came on for hearing before the Honorable Peter H. Kirwan 0n July 25, 201 9, at 23 9:00 am. in Department 19. The matter having been submitted, the Court orders as follows: 24 Factual and Procedural Background 25 Plaintifif-LunderntepAssociation,-InC#Lundyiyis-gnon-profipmu-tual-benefitwv~- 26 corporation and the owners’ association for the professional common interest development 27 known as the Lundy Professional Center (“Project”). C Cube Investment LLC is the owner of 28 four units at the Project. (See Second Amended Cross-Complaint (“SAXC”) at {I 3.) Defendant Case No. 20 1 8-CV-328953 1 and cross-complainant Sherry Chen (“Chen”) (self-represented) is a member ofC Cube 2 Investment LLC. (Id. at 11 1.) 3 On May 25, 201 8, Lundy filed a Complaint against Chen alleging causes of action for 4 injunctive relief, declaratory relief, nuisance, negligence, and money due. Lundy claims that 5 defendant Chen failed to make payments required under the CC&Rs and interfered with other 6 members’ rights of quiet of enjoyment and use of their properties at the Project. 7 On December 4, 2018, Chen dba C Cube Investment LLC filed the operative SAXC 8 against Lundy setting forth causes of action for: (1) breach of contract; (2) breach of fiduciary 9 duty; (3) fiaud -intentional misrepresentation; (4) fiaud --unjust self-enrichment; (5) negligence; 10 (6) injunctive relief; (7) injunctive relief; (8) injunctive relief; and (9) money due. Chen alleges 11 that Lundy violated its obligations under the CC&Rs and the Bylaws. (SAXC at 1H] 57, 62, 72, 12 80, 85, 94.) 13 Currently before the Court is the demurrer to the SAXC by cross-defendant Lundy. Chen 14 filed written opposition. Lundy filed reply papers. 15 Demurrer to the SAXC 16 Cross-Defendant Lundy makes the following arguments on demurrer: (1) Cross- 17 Complainant Chen lacks standing to bring the SAXC; (2) C Cube Investment LLC lacks standing 18 to bring the SAXC as it is not represented by counsel in this lawsuit; (3) the third cause of action 19 fails to state a valid claim; and (4) the fourth cause of action fails to state a valid claim. (Code 20 Civ. Proc., § 430.10, subd. (6).) 21 Legal Standard 22 “In reviewing the sufficiency of a complaint against a general demurer, we are guided by 23 long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but 24 not contentions, deductions or conclusions of fact or law. We also consider matters which may 25 be judicially noticed.’” (Blank v. Kinvafl_,(1985) 39 Cal.3d 3 l 1, 318.) “A demurrer tests only 26 the legal sufficienby of the pleading. It admits the truth of all material factual allegations in the 27 complaint; the question of plaintiff’s ability to prove these allegations, 0r the possible difficulty 28 in making such proof does not concern the reviewing court.” (Committee 0n Children ’s Case No. 2018-CV-328953 1 Television, Inc. v. General Foods Corp. (1983) 35 Ca1.3d 197, 213-214 (Committee on 2 Children ’s Television).) 3 “The reviewing court gives the complaint a reasonable interpretation, and treats the 4 demurrer as admitting all material facts properly pleaded. The court does not, however, assume 5 the truth of contentions, deductions or conclusions of law. [I]t is error for a trial court to 6 sustain a demurrer when the plaintiffhas stated a cause of action under any possible legal theory. 7 And it is an abuse of discretion to sustain a demurrer without leave to amend ifthe plaintiff 8 shows there is a reasonable possibility any defect identified by the defendant can be cured by 9 amendmen .” (Gregmy v. Albertson ’s, Inc. (2002) 104 Cal.App.4th 845, 850.) 10 The Demurrer to the Entire, SAXC is SUSTAINED. 11 Cross-Defendant Lundy argues that cross-complainant Chen is not the real party in 12 interest and thus lacks standing to bring the SAXC. 13 “Standing is the threshold element required to state a cause of action and, thus, lack of 1.4 standing may be raised by demurrer.” (Martin v. Bridgeport Community Assn, Inc. (2009) 173 15 Ca1.App.4th 1024, 103 1 .) To have standing to sue, a person, or those whom he properly 16 represents, must “ ‘have a real interest in the ultimate adjudication because [he 0r she] has 17 [either] suffered [or] is about t0 suffer any injury of sufficient magnitude reasonably to assure 18 that all of the relevant facts and issues will be adequately presented.’ [Citation.]” (Schmier v. 19 Supreme Ct. (2000) 78 Ca1.App.4th 703, 707.) Code of Civil Procedure section 367 establishes 20 the rule that “[e]very action must be prosecuted in the name of the real party in interest, except as 21 otherwise provided by statute.” A real party in interest is one who has “an actual and substantial I 22 interest in the subject matter of the action and who would be benefitted or injured by the 23 judgment in the action.” (Friendly Village Community Assn, Inc. v. Silva & Hill Constr. C0. 24 (1973) 31 Ca1.App.3d 220, 225.) 25 Afi_ Cross-Defendant Lundy contends Chen lacks standing as C Cube Investment LLC is the 26 real party in interest as it is the owner ofthe four subject units at the Project. (See SAXC at 11 3.) 27 Thus, to the extent that the SAXC seeks reliefbased on alleged breaches of the CC&Rs and I 28 Bylaws, then C Cube Investment LLC, as the owner of the units, is the real party in interest. U.) Case No. 20 1 8-CV-328953 1 (See Gantman v. United Pacific Ins. C0. (1991) 232 Cal.App.3d 1560, 1566 [Generally, the real 2 party in interest is the person who has the right to sue under the substantive law, and thus is the 3 person who owns or holds title to the claim or property involved].) As Chen is simply a member 4 of C Cube Investment LLC, Lundy argues she does not have standing to pursue this action. 5 In opposition, cross-complainant Chen does not dispute the standing argument. Instead, 6 Chen admits that C Cube Investment LLC is the title owner of the units and that she is one of the 7 four members of the LLC. (See OPP at p. 1.) As Chen concedes this argument, the demurrer is 8 sustainable on this ground. 9 Furthermore, if the Court sustains the demurrer on the standing ground, Chen requests in 10 opposition that the SAXC and CompIaint be dismissed without leave to amend. (See OPP at p. 11 7:21-25.) In doing so, Chen states that issues regarding Lundy’s breach of fiduciary duties and 12 Violation ofCC&Rs and Bylaws will likely be raised by other members. (Id. at p. 7:23-25.) As 13 an initial matter, Chen cannot move to dismiss the Complaint by making such request in her 14 opposition. The Court therefore has no legal basis to dismiss the Complaint at this time. But, 15 given Chen’s request in opposition, the Court will sustain the demurrer to the entire SAXC 16 without further leave to amend. Having done so, the Court declines to address the remaining 17 arguments raised on demurrer. 18 Accordingly, the demurrer to the SAXC is SUSTAINED WITHOUT LEAVE TO 19 AMEND. 20 21 (P ‘ 22 Datedz‘l ‘25’1 1a ._...___. 4.4. \g.-._...__.. Hon. Peter H. Kirwan 23 Judge of the Superior Court 24 25 n 26 27 28 4 Case N0. 20 1 8-CV-328953 Exhibit 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 0f age and not a party t0 this action. I am employed by in the County 0f San Francisco, State 0f California. 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’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION OF COUNSEL on the person or persons listed below, through their respective attorneys of record in this action, by placing true copies thereof in sealed envelopes 0r packages addressed as shown below by the following means 0f service: D: By United States Mail. Iplaced 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. g: OVERNIGHT MAIL - As follows: I am “readily familiar” With the firm’s practice 0f 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, 0n that same day, at San Francisco, California. g: BY E-MAIL - Based on a court order or an agreement 0f the parties to accept service by e-mail 0r electronic transmission, I caused the documents t0 be sent t0 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 0f the State 0f California that the foregoing is true and correct to the best ofmy knowledge. EXECUTED on September 22, 2021, at San Francisco, California.fl, Michael Folger 13 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION OF COUNSEL 25 1444997V.1 SERVICE LIST Sherry Chen v. Lundy Center Association, Inc. et al., Santa Clara County Superior Court Case No.: 19CV356961 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Sherry Chen 1879 Lundy Avenue Suite 238 San Jose, California 95131 Tel: (408) 935-8969 Fax: (408) 941-2022 Sherry.lundyh0a@ gmail.com Service by Email and Overnight Mail 14 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION OF COUNSEL 25 1444997v.1