Opposition ObjectionsCal. Super. - 6th Dist.October 21, 2019Phillip G. Vermont, SBN 132035 Dominique M. Jacques, SBN 290036 RANDICK O'DKA TOOLIATOS VERMONT & SARGKNT, LLP 5000 Hopyard Road, Suite 225 Pleasanton, California 94588 Telephone: (925) 460-3700 Facsimile: (925) 460-0969 Attorneys for Plaintiff Stephens & Stephens (Walsh), LLC, a California limited liability company 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 11 12 13 14 15 16 17 Stephens & Stephens (Walsh), LLC, a California limited liability company, Plaintiff, vs. MiaSole, Inc., a California corporation, Hanergy Holdings America LLC, Hanergy Holding Group, LTD and DOES 1 to 25, Defendants. Case No.: 19CV357293 OPPOSITION TO DEMURRER OF MIASOLE HI-TECH CORP. Date: January 3, 2020 Time: 9:15 a.m. Dept: 11 Action Filed: October 21, 2019 Trial Date: December 20, 2019 19 20 21 22 23 24 25 26 27 28 Plaintiff Stephens & Stephens (Walsh), LLC, a California limited liability company, ("Plaintiff') hereby submits its Opposition to the Demurrer of Miasole Hi-Tech Corp. ("Defendant") to its Complaint. I. STATEMENT OF FACTS Plaintiff filed its Complaint on October 21, 2019. Exhibit 2 to the Complaint contained the Three-Day Notice to Pay Estimated Rent or Quit (the "Notice"), which was served at 2590 Walsh Avenue, Santa Clara, CA 95051 (the "Property"). The Notice listed "MiaSole Inc., a California Corporation; Hanergy Holdings America, LLC; Hanergy Holdings Group, Ltd.; and to all tenants. subtenants and occunants of the oremises located at 2590 Walsh Avenue. Santa Clara. CA 95051." (Emphasis added; Request for Judicial Notice ("RJN"), Exhibit C.) OPPOSITION TO DEMURRER OF MIASOLE HI-TECH CORP. - CASE NO. 19CV357293 d4247d.do Electronically Filed by Superior Court of CA, County of Santa Clara, on 12/11/2019 2:26 PM Reviewed By: S. Uy Case #19CV357293 Envelope: 3757897 The Notice was served on "all tenants, subtenants and occupants of the Premises" on October 11, 2019 at 10:19 a.m. by posting a copy on the front door and mailing a copy to such tenants, subtenants and occupants. (RJN, Exh. D.) The proof of service for the Notice states that it was served in the manner prescribed by California Code of Civil Procedure ("CCP") section 1162, subd. (3), as the tenant was absent. The Notice and proof of service were attached to the Complaint as Exhibits 2 and 3. (RJN, Exhs. C-D.) Despite these facts, Defendant now demurs to Plaintiff's Complaint, alleging: 1. The 3-day notice was defective as it did not specifically name Defendant; 2. Defendant was not served width the 3-day notice; and 10 3. The Complaint and the proof of service have different dates for service. II. LEGAL ARGUMENT 12 A. DEMURRER STANDARD 13 In determining whether or not to sustain a demurrer for failure to state facts sufficient to 14 constitute a claim of action, all of the material facts must be regarded as true. (Serrano v. Priest 15 (1971) 5 Cal.3d 584, 591.) A demurrer is not concerned with the likelihood that the plaintiffs 16 17 will prevail, nor even whether they have evidence to support their allegations. (Accardi v. Superior Court (1993) 17 Cal.App.4'" 341, 346.) "All that is necessary against a general 18 demurrer is that, upon a consideration of all the facts stated, it appears that the plaintiff is entitled 19 20 to any relief at the hands of the court against the defendant." (Jd. at p. 591.) Accordingly, a court must deny a demurrer when a party states a cause of action "under any possible legal 21 22 23 theory," regardless of the possible difficulties ofproof. (Aubry v. Tri-CityHospital Dist. (1992) 2 Cal.4th 962, 967.) Even where a "plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail... if the essential facts of some valid cause of action 24 25 are alleged, the complaint is good against a general demurrer." ((Juclimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.) California courts must construe complaints "liberally 26 with a view to substantial justice between the parties." (Cal. Code Civ. Proc. (452.) 27 28 OPPOSITION TO DEMURRER OF MIASOLE HI-TECH CORP. - CASE NO. 19CV357293 442474 doc B. DEFENDANT RECEIVED PROPER NOTICE. The purpose of the statutory requirement of notice in the unlawful detainer statute is to give the tenant or subtenant in actual possession, the opportunity to pay the rent and thereby retain possession. (Fifth 4f Broadway Partnership v. Kimny, Inc. (1980) 102 Cal.App.3d 195, 202.) The purpose of the notice is to require that alleged breaches be specifically pointed out in the required notice so that they may be remedied within the statutory period. (Julien v. Gossner (1951) 103 Cal.App.2d 338, 344.) There is no requirement within CCP sections 1161 or 1162 that the tenant be explicitly and accurately named, only that they are put on notice of their ability to cure the default. CCP section 1161, subd. (2) (the "pay or quit" provision) only requires that 10 the Notice state the amount due and where, when and to whom payment may be made; this is not specific identification requirement other than that which would put the tenant on notice. 12 Here, the Notice stated it was to "all tenants, subtenants and occupants of the premises 13 located at 2590 Walsh Avenue, Santa Clara, CA 95051." (RJN, Exh. C.) The Notice was both 14 posted on the door to the Property and mailed to "all tenants, subtenants and occupants of the 15 Premises". (RJN, Exh. C.) Defendant, as the alleged tenant of the Property, was therefore 16 provided proper notice, even if it was not explicitly named in the Notice. 17 Notably, the Property contains only one 111,585 square foot stand-alone unit, fully rented 18 under the Lease at issue here. (RJN, Exhs. A-B.) The Notice could not have been construed 19 against any other potential tenant. 20 1. The Prejudgment Claim Permits Judgment against Unnamed Tenants and 21 Occupants. 22 California statutes further provide a procedure for enforcement of evictions against 23 unnamed tenants. CCP section 415.46, subd. (e) states that if an owner has obtained service of a 24 prejudgment claim of right to possession in accordance with the statute's provisions, whether or 25 not the occupant is named in the judgment for possession, the occupant may not object to enforcement of the judgment. The Prejudgment Claim of Right to Possession allows unnamed 27 parties to appear in an unlawful detainer action and contest the eviction. However, if the 28 occupant does not appear, judgment will still be enforced if a Prejudgment Claim of Right to 3 OPPOSITION TO DEMURRER OF MIASOLE HI-TECH CORP. - CASE NO. 19CV357293 442476 dcc Possession was served. (CCP Il'415.46(e)(1). California statute supports the position that the exact name of a tenant need not be stated if sufficient notice is provided. Here, Defendant has filed a Prejudgment Claim of Right to Possession', which was served by posting. Defendant has availed itself of the proper procedure in which it has a right to appear in this matter despite being unnamed. C. DEFENDANT WAS PROPERLY SERVED WITH THE NOTICE. CCP section 1162(b)(3) states if, at the time of attempted service, a person of suitable age or discretion is not found at the rental property through the exercise of reasonable diligence, a commercial tenant may be served by affixing a copy of the notice in a conspicuous place on the 10 property, and also sending a copy through the mail addressed to the tenant at the address where the property is situated. 12 As stated in Exhibit 3 of the Complaint (RJN Exh. D), the Notice was served on "All 13 Tenants, Subtenants and Occupants" at the Property on October 11, 2019 at 10:19 a.m. and 14 mailed the same day. The proof of service was signed by process server, Estella Padilla, under 15 16 17 penalty of perjury on October 14, 2019. The proof of service stated that the Notice was served by posting the Notice on the front door of the Property and mailing, as the tenant was absent from the Property. (RJN, Exh. D.) The proof of service was incorporated into the Complaint as 18 19 Exhibit 3. (RJN, Exh. A tt 8(d).) Defendant, as the alleged tenant of the Property, was therefore properly served with the Notice. 20 22 1. The Proof of Service Was Incorporated into the Complaint. Details of service of the three-day notice are sufficiently pleaded by setting forth a copy of the notice in haec verba and alleging that service was made upon each of the defendants. 23 24 25 (Arnold v. Krigbattm (1915) 169 Cal. 143, 147.) Here, the Notice was attached to the Complaint as Exhibit 2 and its proof of service was attached as Exhibit 3. (RJN, Exhs. C-D.) Therefore, the Notice and proof of service were properly pled in the Complaint. 26 27 28 's this matter is masked due to its nature, Plaintiff does not currently have a copy of such Prejudgment Claim but has confirmed its existence in this Court's file on two (2) separate occasions with the court clerk. 4 OPPOSITION TO DEMURRER OF MIASOLE HI-TECH CORP. - CASE NO. 19CV357293 442476 dcc 2. The Lease Provisions Do Not Control Service of the Notice. While commercial leases can alter the notice provisions for an unlawful detainer, no such alteration exists within the Lease. (Cidver Center PartnersEast ill, L.P. v. Baja Fresh JVestlake Village, Enc. (2010) 185 Cal.App.4th 744, 752.) The Lease states, "All notices, demands, or other communications required or contemplated under the Lease,... shall be in writing and shall be deemed to have been duly given 48 hours from the time of mailing if mailed by registered or certified mail,... or 24 hours from the time of shipping by overnight carrier, or the actual time of delivery if delivered by personal service..." (RJN, Exh. B P 28.) The unlawful detainer notices are not contemplated or otherwise required by the Lease. (See generally, RJN, Exh. B.) Further, 10 the notice provision only discusses when notices are deemed to be "duly given," if provided in certain forms. It does not contemplate the exclusive use of those forms for service. {RJN, Exh. B 12 P 28.) Therefore, the Notice was not rendered defective by the Lease, as the Lease notice 13 requirements were limited to notices required or contemplated by the Lease. 14 3. Service Would Have Been Unsuccessful in any Other Form. 15 This Court granted a posting order for service of the Complaint and related documents on 16 all tenants of the Property, including Defendant, after Plaintiff proved that service could not be 17 completed in any other manner. (RJN, Exh. E-F.) Process server Estella Padilla made over 18 eleven (11) attempts to serve the Complaint and other documents at the Property on various dates 19 and times, but found the business closed and the doors locked on each occasion. (RJN, Exh. E.) 20 Therefore, it appears no other form of service could be provided in a manner in which Defendant 21 would receive any document from Plaintiff, except by posting and mailing. 22 4. Defendant Submitted a Prejudgment Claim in Response to the Complaint, 23 Which Was Served in the Same Manner as the Notice, 24 Pursuant to a posting order granted by this Court, Plaintiff further served the Complaint, Summons and Prejudgment Claim of Right to Possession by posting a copy on the front door of 26 the Property and mailing a copy to "All Tenants, Subtenants and Occupants at the Premises" to 27 the Property. A copy of the proof of service on "all tenants'* was filed with this Court on 28 December 3, 2019. (RJN, Exh. G.) Defendant has not contested receipt of the Complaint and 5 OPPOSITION TO DEMURRER OF MIASOLE HI-TECH CORP. - CASE NO. 19CV357293 442476 664 related documents, which were served in an identical manner as the Notice. Defendant has appeared in this action by way of a timely filed Prejudgment Claim of Right to Possession (see fn. I), which was served by posting. It is illogical for Defendant to allege receipt of, and in fact respond to, the Complaint but not the Notice, which was served in the exact same manner. 5 D. THE COMPLAINT IS NOT RENDERED DEFECTIVE BY TYPOS. Defendant alleges that because Paragraph 8(3) of the Complaint incorrectly stated the date ofposting and mailing was October 14, 2019 (the date the proof of service was signed), instead of October 11, 2019 (the prior Friday), and failed to mark the reason for such posting on the Complaint, the Complaint was defective. However, the proof of service, as stated in supra, 10 was attached to the Complaint and incorporated in the Complaint, rendering it properly pled. The actual proof of service clarified any possible ambiguity within the Complaint. 12 1. If the Court Finds the Complaint Conflicts with the Exhibits, the Court Must 13 Rely on the Exhibits. 14 "If the allegations in the complaint conflict with the exhibits, [the court must] rely on and 15 16 accept as true the contents of the exhibits." (SC Manufactured Homes, Inc. v, Liebert (2008) 162 Cal.App.4th 68, 83.) Even if the Court takes issue with the differing dates or the unmarked box, 17 the Court must accept the truth of the proof of service, clearing showing that the Notice was 18 served on October 11, 2019 due to the tenant*s absence. The acceptance of the exhibits as true 19 resolves any possible ambiguity between the proof of service and the Complaint. 20 2. The Date of Service of the Notice is a Non-Issue in this Matter. 21 It should be noted that a complaint can only be filed against a tenant for unlawful detainer 22 after the statutory three-day period following written notice has run. (Lamanna v, Vognar (1993) 23 24 25 17 CaLApp.4th Supp. 4, 6.) A proof of service ensures that the three-day notice was provided and such time has run before the complaint is filed. Here, the Complaint was not filed until October 21, 2019. Under either the October 14, 2019 date (alleged by mistake) or the October 26 11, 2019 date (the date of service), the statutory period for payment of rent or to quit had run and 27 28 OPPOSITION TO DEMURER OF MIASOLE Hl-TECH CORP. - CASE NO. 19CV357293 447476 6 the Complaint was timely filed . While the Complaint is not defective, as the proof of service was properly pled by attachment to the Complaint, incorporated into the Complaint„and contained the accurate date and reason for posted service, additionallv, the different date would not otherwise render the Complaint defective, as the three-day period following written notice had run from either date before filing. IF PLAINTIFF'S COMPLAINT IS DETERMINED TO BE DEFECTIVE, PLAINTIFF REQUESTS LEAVE TO AMEND IN ORDER TO CURE ANY SUCH DEFECTS. 10 12 13 14 Even where a court grants demurrer, justice demands "great liberality" in granting leave to amend. (Scott v. Indian 8"elis (1972) 6 Cal.3d 541, 549.) The Court must grant leave to amend if there is a reasonable possibility the plaintiff could cure defects in their complaint by amending it. (Code Civ. Proc. $472a(c); Schifando v. City ofI.os Angeles (2003) 31 Cal.4th 1074, 1081.) While the typos in the Complaint do not render it defective, they are correctable if this Court grants demurrer in Defendant* s favor. HI. CONCLUSION 15 16 17 Based on the foregoing, Defendant's Demurrer should be overruled in full. In the alternative, Plaintiff requests leave to amend to correct the typos to match the properly pled exhibits. 18 19 Date: December 11, 2019 RANDIC VARMO 20 21 22 By: i ip G. )ermont 23 24 25 26 27 28 'sing the October 11, 2019 date, six (6) court days had passed before filing the Complaint. Using the October 14, 2019 date, five (61 court days had passed before filing the Complaint. 7 OPPOSITION TO DEMURRER OF MIASOLE HI-TECH CORP. - CASE NO. 19CV357293 PROOF OF SERVICE I, Sue Betti, declare: I am employed in Alameda County, State of California, am over the age of eighteen years, and not a party to the within action. My business address is 5000 Hopyard Road, Suite 225, Pleasanton, California 94588. I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service and/or other overnight delivery. Under overnight delivery practice, all mailings are deposited in an authorized area for pick-up by an authorized express service courier the same day it is collected and processed in the ordinary course of business. On the date set forth below„ I served the within: OPPOSITION TO DEMURRER OF MIASOLE HI-TECH CORP. 8 9 10 11 12 13 14 15 (By Facsimile) The above-referenced document(s) was transmitted by facsimile transmission to the number(s) shown and the transmission was reported as complete and without error. I caused the transmitting facsimile machine to issue properly a transmission report, a copy of which is attached to this Declaration. on the parties in this action by placing a true copy thereof in a sealed envelope, and each envelope addressed as follows: Gary Sullivan, Esq. 1565 The Alameda, Suite 100 San Jose, CA 95126 [x] (By U.S. Mail) I caused each such envelope to be served by depositing same, with postage thereon fully prepaid, to be placed in the United States Postal Service in the ordinary course of business at Pleasanton, California. [] 16 17 18 19 20 21 [ ] (By Overnight Delivery) I caused each such envelope to be served by depositing same in an authorized area for pick-up by an authorized express service courier (UPS Overnight) the same day it is collected and processed in the ordinary course of business . [ ] (By Personal Service) I caused each such envelope to be delivered by hand to the persons named above. (By Electronic Service) The above-referenced document was served by electronically mailing a true and correct copy through Randick O'Dea Tooliatos Vermont & Sargent, LLP's electronic mail system, to the email addresses set forth as listed above, and in accordance with Federal Rules of Civil Procedure, Rule 5(b). 22 23 I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on December 11, 2019, at Pleasanton, California. 24 25 26 c AM Sue Betti 27 28 PROOF OF SERVICE 442476 4
