Request Judicial Notice

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

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1QCV356961 Santa Clara - Civil M. Sc Electronically Filed Peter C. Catalanotti (SBN 230743) by Superior Court of CA, peter.catalanott1@w1lsonelser.com Jenny Y. Jin (SBN 296184) C°unty °f santa C'aras jenny.jin@wilsonelser.com 0n 6/22/2021 4:55 PM Audrey Tam (SBN 305437) Reviewed By: M. Sorum audrey.tam@wilsonelser.com Case #1 9CV356961 WILSON, ELSER, MOSKOWITZ, EnveIope; 6701 34o EDELMAN & DICKER LLP 525 Market Street, 17th Floor San Francisco, California 94105-2725 Telephone: (415) 433-0990 Facsimile: (4 1 5) 434- 1 370 Attorneys for Defendants Lundy Center Association, Inc., Jose Reynoso, Louella Eischen, Anh Nguyen, Chao-Cheng Yeh, Tung Nguyen SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA SHERRY CHEN, ) Case N0. 19CV356961 ) Plaintiff, ) ) DEFENDANTS’ REQUEST FOR V. ) JUDICIAL NOTICE IN SUPPORT OF ) MOTION FOR JUDGMENT ON THE LUNDY CENTER ASSOCIATION, INC., a ) PLEADINGS California mutual benefit corporation; JOSE ) REYNOSO individually and as a Director; ) LOUELLA EISCHEN, individually and as a ) DATE: Director; ANH NGUYEN, individually and as a ) TIME: 9:00 A.M. Director; CHAO-CHENG YEH, individually and ) DEPT.: 19 as a Director; TUNG NGUYEN, individually and ) as a Director; and DOES 1 through 25, inclusive, ) ) Defendants. ) PLEASE TAKE NOTICE that Defendants Lundy Center Association, Inc., Jose Reynoso Louella Eischen, Anh Nguyen, Chao-Cheng Yeh, and Tung Nguyen request the Court, pursuant t0 California Evidence Code §§ 451 to 453, inclusive, take judicial notice 0f the following matters, facts, and documents, in connection with Defendants’ Demurrer to the Second Amended Complaint: 1. Order Sustaining and Overruling the Defendants’ Demurrer, filed in this case 0n June 10, 2020, pursuant to EVid. Code § 452(d) (“Records 0f (1) any court 0f this state”), attached hereto as Exhibit A. /// 1 )rum DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS 2285228V.1 4; \DOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Notice 0f Entry of Judgment in favor of Lundy Center Association, Inc., filed in C Cube Investment LLC v. Lundy Center Association, Inc. (Santa Clara Superior Court Case No. 20$C084270) 0n March 29, 2021, pursuant to Evid. Code § 452(d) (“Records of (1) any court of this state”), attached hereto as Exhibit B. Respectfully Submitted, Dated: June 22, 2021 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP Peter C. Catalanotti Jenny Y. Jin Audrey Tam Attorneys for Defendants, Lundy Center Association, Inc., Jose Reynoso Louella Eischen, Chao-Cheng Yeh, Anh Nguyen, and Tung Nguyen 2 DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS 2285228v.1 Exhibit A 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 B Name and Address of Coun SUPERIOR COURT 0F CALIFORNIA COUNTY OF SANTA CLARA 191 North First Street San José. California 951 13 ?ECEW W APR EZ 2323, 33-130 WILLIS MGMT. GROUP ING. SMALL CLAIMS CASE N0; 2080084270 NOTICE T0 ALL PLAINTIFFS AND DEFENDANTS: Your small claims case has been decided. If you lost the case, and the court ordered you to pay money, your wages, money, and property may be taken without further warning from the court. Read the back of this sheet for important information about your rights. A VISO A TODOS LOS DEMANDANTES YDEMANDADOS: Su caso ha sido resuelto por la corte para reclamos judiciales menores. Si la corte ha decidido en su contra y ha ordenado que usted pague dinero, le pueden quitar su salario, su dinero, y otras cosas de su prbpiedad, sin aviso adicional por parte de esta corte. Lea el reverse de este formulario para obtener informacién de importancia acerca de sus derechos. PLAINTIFF/DEMANDANTE (Name, street address, and telephone number of each): C Cube Investment, LLC 1879 Lundy Avenue #266 SAN JOSE, CA 95131 DEFENDANTIDEMANDADO' (Name, street address, and telephone number of each): Lundy Center Association, Inc. *Serve on Chris Willis Managing Agent 3180 Crow Canybn Place #1 00 SAN RAMON, CA 94583 Name and Address of Court SUPERIOR COURT OF CALIFORNIA COUNTY 0F SANTA CLARA 191 North First Street San José, California 951 13 SC-1 30 SMALL CLAIMS CASE N0; 2080084270 NOTICE T0 ALL PLAINTIFFS AND DEFENDANTS: Your small claims case has been decided. If you lost the case, and the court ordered you to pay money, your wages, money, and property may be taken without further warning from the court. Read the back of this sheet for important information about your rights. AVISO A TODOS LOS DEMANDANTES YDEMANDADOS: Su caso ha sido resuelto por la corte para reclamos judiciales menores. Si Ia corte ha decidido en su contra y ha ordenado que usted pague dinero, le pueden quitar su salario, su dinero, y otras cosas de su propiedad, sin aviso adicional por parte de esta corte. Lea el reverso de este formulario para obtener informacién de importancia acerca de sus derechos. PLAINTIFFIDEMANDANTE (Name, sfreet address, and telephone number of each): C Cube Investment, LLC 1879 Lundy Avenue #266 SAN JOSE, CA 95131 DEFENDANT/DEMANDADO' (Name, street address, and telephone number cf each): Lundy Center Association, Inc. *Serve on Chris Willis Managing Agent 31 80 Crow Canyon Place #1 00 SAN RAMON, CA 94583 D See attached sheet for additional plaintiffs and defendants Dates of Hearing: Nov. 12, 2020; Jan. 14, 2021; Mar.25, 2021 Hearing officer: Commissioner Christine Copeland Judgment was entered as checked below on 03/29/2021 LU E3D ow» BUD DEED NOTICE OF ENTRY OF JUDGMENT ***ORDER ISSUED ON A SUBMITTED MATTER**** Defendant (name, ifmore than one): Lundy Center Association. Inc. shall pay plaintiff (name, ifmore than one): C Cube Investment LLC $ principal and: $ costs on plaintiff‘s claim. Defendant does not owe plaintiff any money on plaintiff's claim. Plaintiff (name, ifmore than one): C Cube Investment LLC shall pay defendant (name, ifmore than one):Lundy Center Association, Inc. $ principal and:$ costs on defendant's claim. Plaintiff does not owe defendant any money on defendant's claim Possession of the following property is awarded to plaintiff (describe property): Payments are to be made at the rate of: $ per (specify period): (specify day): day of each month thereafter until paid in full. balance may become due immediately. Dismissed in court D with prejudice. D without prejudice Attomey-Client Fee Dispute (Attachment to Notice of Entry ofJudgment) (form SC-132) is attached. Other (specify): Commissioner Copeland’s notes attached This judgment results from a motor vehicle accident on a California highway and was caused by the judgment debtor's operation of a motor vehicle. If the judgment is not paid the judgment creditor may apply to have the judgment debtor's driver's license suspended. beginning on (date. and on the If any payment is missed, the entire 11. Enforcement of thejudgment is automatically postponed for 30 days or, if an appeal is filed, until the appeal is decided. 12. D This notice was personally delivered to (insert name and date): . CLERK'S CERTIFICATE OF MAILING-I certify that I am not a party to this action. This Notice of Entry of Judgment was mailed first class, postage prepaid. in a sealed envelope to the parties at the addresses shown above. The mailing and this certification occurred at the place and on the date shown below. Place of mailing: San Jose, California Date of mailing: 04/09/2021 , DeputyClerk, by Sylvia Roman The county provides small claims advisor services free of charge. Read the information sheet on the reverse. Form Adopted for Alternative Mandatory Use Judicial Council of California SC-1 30 [Rev July 1, 2010] Code of Civil Procedures §1 16.61 f) www/oaum'nfo. cagovNOTICE 0F ENTRY 0F JUDGMENT (Small Claims) ., SC-1 30 INFORMATION AFTER JUDGMENT INFORMACION DESPUES DEL FALLO DE LA CORTE Your small ciaims case has been decided; The judgment or decision of the court appears on the front of this sheet. The court may have ordered one party to pay money to the other party. The person (or business) who won the case and who can collect the money is called the judgment creditor. The person (or business) who lost the case and who owes the money is called thejudgment debtor. Enforcement of the judgment is postponed until the time for appeal ends or until the appeal is decided. This means that the judgment creditor cannot collect any money or take any action until this period is over. Generally, both parties may be represented by lawyers after judgment. IF YOU LOST THE CASE . . . 1. If you lost the case on your own claim and the court did not award you any money, the court's decision on your claim is FINAL. You may not appeal your own claim. If you lost the case and the court ordered you to pay money, your money and property may be taken to pay the claim unless you do one of the following things: a. PAY THE JUDGMENT The law requires you to pay the amount of the judgment. You may pay the judgment creditor directly, or pay the judgment to the court for an additional fee. You may also ask the court to order monthly payments you can afford. Ask the clerk for information about these procedures. b. APPEAL If you disagree with the court's decision, you may appeal the decision on the other party’s claim. You may not appeal the decision on your own claim. However, if any party appeals. there will be a new trial on all the claims. If you appeared at the trial, you must begin your appeal by filing a form called a Notice of Appeal (form SC-140) and pay the required fees within 30 days after the date this Notice of Entry of Judgment was mailed or handed to you. Your appeal will be in the superior court. You will have a new trial and you must present your evidence again. You may be represented by a lawyer. c. VACATE OR CANCEL THE JUDGMENT If you did not go to the trial, you may ask the court to vacate or cancel the judgment. To make this request, you must file a Motion to Vacate the Judgment (form 30-135) and pay the required fee within 30 days after the date this Notice of Entry of Judgment was mailed. If your request is denied, you then have 10 days from the date the notice of denial was mailed to file an appeal. The period to file the Motion to Vacate the Judgment is 180 days if you were not properly served with the claim. The 180-day period begins on the date you found out or should have found out about the judgment against you. IF YOU WON THE CASE. . . 1. If you were sued by the other party and you won the case, then the other party may not appeal the court‘s decision. 2. If you won the case and the court awarded you money, here are some steps you may take to collect your money or get possession of your property: a. COLLECTING FEES AND INTEREST Sometimes fees are charged for filing court papers or for sewing the judgment debtor. These extra costs can become part of your original judgment. To claim these fees, ask the clerk for a Memorandum of Costs, b. VOLUNTARY PAYMENT Ask the judgment debtor to pay the money. If your claim was for possession of property, ask the judgment debtor to return the property to you. THE COURT WILL NOT COLLECT THE MONEY OR ENFORCETHE JUDGMENT FOR YOU. c. STATEMENT OF ASSETS lf the judgment debtor does not pay the money. the law requires the debtor to fill out a form called the Judgment Debtor's Statement ofAssets (form 80-133). This form will tell you what property the judgment debtor has that may be available to pay your claim. If the judgment debtor willfully fails to send you the completed form, you may file an Application and Order to Produce Statement of Assets and to Appear for Examination (form 80-134) and ask the court to give you your attorney's fees and expenses and other appropriate relief, after proper notice, under Code of Civil Procedure section 708.170. ORDER 0F EXAMINATION You may also make the debtor come to court to answer questions about income and property. To do this, ask the clerk for an Application and Order for Appearance and Examination (Enforcement of Judgment) (form EJ-125) and pay the required fee. There is a fee if a law officer serves the order on the judgment debtor. You may also obtain the judgment debtors financial records. Ask the clerk for the Smali Claims Subpoena and Declaration (form SC-107) or Civil Subpoena Duces Tecum (form SUBP-OOZ). . WRIT OF EXECUTION After you find out about the judgment debtor's property, you may ask the court for a Wn‘t of Execution (form EJ<130) and pay the required fee. A writ of execution is a court paper that tells a law officer to take property of the judgment debtor to pay your claim. Here are some examples of the kinds of property the officer may be able to take: wages, bank account, automobile, business property, or rental income. For some kinds of property, you may need to file other forms. See the law officer for information. ABSTRACT OF JUDGMENT The'judgment debtor may own land or a house or other buildings. You may want to put a lien on the property so that you will be paid if the property is sold. You can get a lien by filing an Abstract of Judgment (form EJ-001) with the county recorder in the county where the property is located. The recorder will charge a fee for the Abstract of Judgment. NOTICE TO THE PARTY WHO WON: As soon as you have been paid in full, you must fill out the form below and mail it to the court immediately or you will be fined. If an Abstract of Judgment has been recorded, you must use another form; see the clerk for the proper form. SMALL CLAIMS NO.: 2086084270 ACKNOWLEDGEMENT OF SATISFACTION 0F JUDGMENT (Do not use this form if an Abstract ofJudgment has been recorded) To the Clerk of the Court: | am the D judgment creditor D assignee of record. | agree that thejudgment in this action has been paid in full or otherwise satisfied. Date: (TYPE OR PRINT NAME) p (SIGNATURE) SC-1 30 [Rev July 1, 201 0] NOTICE OF ENTRY OF JUDGMENT PageZon lanll (‘laimc\ Case Name: C Cube Investment LLC v. Lundy Center Association Inc. Case Number: 20$C084270 (and related case number 19CV356961) Date of hearing: 3/25/21 Plaintiff is a current and active LLC, and so has standing t0 sue but is limited to a $5000.00 maximum recovery in small claims court. Defendant is a valid corporation and so has standing to defend itself ' Plaintiff’s claim was filed timely, venue is proper, service was proper and Defendant appeared. Prior to this court hearing, Defendant requested that the small claims court transfer this case to civil court, to coordinate with a related case, 19CV356961, filed by one of C Cube’s owners. Parenthetically, it appears that Plaintiff is misnamed as an individual instead of as C Cube in that related civil case. IfC Cube is the proper party in that other case, it must be represented by an attorney in the civil case. In response to Defendant’s prior request, the undersigned instructed Defendant that its CCP section 4032 transfer request needed to be made in the related civil case, and the undersigned suggested that Defendant make such a request at_ the then-upcoming 3/23/21 hearing in Dept. 19. At the small claims hearing, Defendant’s representative was not sure if the request was made, but the minutes suggest Defendant’s attorneys did not raise the issue. Turning to the substantive issues regarding the change in how Defendant assessed its owners/members for utilities, the new billing method seems less transparent than the previous method. Also, one would expect that a newer system would be more cost efficient and provide more accurate readings regarding usage. However, Defendant’s CC&Rs give it leeway to determine how t0 best and reasonably bill owners. Plaintiff lacks sufficient evidence that the particular new billing method employed violates the CC&Rs. Plaintiff suspects that Defendant changed its billing to benefit certain few owners at the expense of others. This Court cannot side with Plaintiffjust because of a hunch. There is insufficient proofthat Defendant’s billing method is outside the scope of the Defendant’s powers given to it by the CC&Rs. Plaintiff will be awarded $0.00 and shall pay its own filing fees and service costs. Plaintiff is owed Defendant is owed Demand $ 0.00 $ Costs $ 0.00 $ Total $ 0.00 $ The clerk shall attach this page to, or include the above informationrin, the Judgment. ,4 4r mumwmw mm" w. Dated: 3/29/21 COMMISSIONER CHRISTINE COPELAND 1 Lundy Professional Center Condo. Association Inc. is a suspended corporation, but unrelated to Defendant in this case so the suspended status is immaterial here. 2 ”Ajudge may, on motion, transfer an action fi-om another court to thatjudge ’s court....” This would give the civil court judge the ability to move the small claims case to civil court. It would not give the small claims court commissioner the ability to transfer the small claims case to the civil court, or move the civil case to small claims court for that matter. 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 of 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’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS on the person or persons listed below, through their respective attorneys 0f record in this action, 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. D: 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 0f perjury under the laws of the State of California that the foregoing is true and correct to the best 0fmy knowledge. EXECUTED on June 22, 2021, at San Francisco, California.fl, Michael Folger 4 DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS 25 1445040V.1 SERVICE LIST Sherry Chen v. Lundy Center Association, Inc. et al., Santa Clara County Superior Court Case No.: 19CV356961 4; \OOONQUI 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 95 1 31 Tel: (408) 935-8969 Fax: (408) 941-2022 Sherrv.lundvhoa@gmail.com Service by Email 5 DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR JUDGMENT ON 25 1445040V.1 THE PLEADINGS