Opposition Objections

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

Phillip G. Vermont, SBN 132035 Dominique M. Jacques, SBN 290036 RANDICK O'DEA TOOLIATOS VERMONT & SARGENT, 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 18 19 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 I to 25, Defendants. Case No.: 19CV357293 OPPOSITION TO DEMURRER OF MIASOLE HI-TECH CORP. TO FIRST AMENDED COMPLAINT Date: January 29, 2020 Time: 9:15 a.m. Dept: 11 Action Filed: Oct. 21, 2019 First Amended Complaint Filed: Dec. 20, 2019 Trial Date: Jan. 24, 2020 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 Demmrer of Miasole Hi-Tech Corp. ("Defendant") to its First Amended 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, Ltdd and to 1 OPPOSITION TO DEMURRER OF MIASOLE HI-TECH CORP. TO FIRST AMENDED COMPLAINT - CASE NO. 19CV357293 Electronically Filed by Superior Court of CA, County of Santa Clara, on 1/13/2020 10:24 AM Reviewed By: S. Uy Case #19CV357293 Envelope: 3877470 all tenants. subtenants and occunants of the nremises located at 2590 Walsh Avenue. Santa Clara. CA 95051." (Emphasis added; Request for Judicial Notice ("RJN"), Exhibit A.) 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. A.) 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. (RJN, Exh. A: Exh. 3.) The Notice and proof of service were attached to the Complaint as Exhibits 2 and 3. (RJN, Exh. A.) At the time of the Notice, Plaintiff is informed and believes that MiaSole Hi-Tech Corp. was an occupant of the Property. 10 MiaSole Hi-Tech Corp. ("Defendant") demurred to the Complaint alleging that Defendant was not properly served with the Notice, as Defendant was not explicitly named. 12 Plaintiff opposed the demurter on the basis that the Notice included "all tenants" of the Property, 13 14 California statutes do not require explicit and accurate naming of the tenant to be effective, Defendant was properly served with notice as required by California law, and Defendant 15 submitted a timely prejudgment claim. (RJN, Exh. B.) 16 17 In the interest ofjudicial economy, Plaintiff served the exact same Three-Day Notice on December 13, 2019 in which it also named MiaSole Hi-Tech Corp., in addition to all previously 18 19 named defendants and all tenants, subtenants and occupants ("Second Notice"). On December 20, 2019, Plaintiff filed a First Amended Complaint ("FAC"). Plaintiff included both the original 20 Notice and the Second Notice in its FAC as well as a thorough explanation of the notices and the 21 service of such notices attached as Attachment gc to the FAC. (RJN, Exh. D.) 22 Plaintiff further submitted a Supplement to Opposition to Demurrer on December 20, 23 2019, stating that while Plaintiff believes that the Notice was properly served on Defendant and 24 opposed the demurrer, Plaintiff has re-served Defendant in the manner alleged by Defendant to 25 be required, though Plaintiff disputes such requirement. (RJN, Exh. C.) 26 27 28 2 OPPOSITION TO DEMURRER OF MIASOLE HI-TECH CORP. TO FIRST AMENDED COMPLAINT - CASE NO. 19CV357293 444797 4 9 I Defendant now demurs to the FAC based on the allegations that: 2 1. Plaintiff should have filed a new complaint instead of the FAC; and 3 2. The FAC is uncertain, as it incorporates both the Notice and Second Notice. 4 II. LEGAL ARGUMENT 5 A. DEMURRER STANDARD 6 In determining whether or not to sustain a demurrer for failure to state facts sufficient to 7 constitute a claim of action, all of the material facts must be regarded as true. (Serrano v. Priest 8 (1971) 5 Cal.3d 584, 591.) A demurrer is not concerned with the likelihood that the plaintiffs 9 will prevail, nor even whether they have evidence to support their allegations. (Accardi v. 10 Sziperior Court (1993) 17 Cal.App.4ia 341, 346.) "All that is necessary against a general 11 demurrer is that, upon a consideration of all the facts stated, it appears that the plaintiff is entitled 12 to any relief at the hands of the court against the defendant." (Id, at p. 591.) Accordingly, a 13 court must deny a demurrer when a party states a cause of action "under any possible legal 14 theory," regardless of the possible difficulties of proof, (Aubry v. Tri-City Hospital Dist. (1992) 15 2 Cal.4th 962, 967.) Even where a "plaintiff may be mistaken as to the nature of the case, or the 16 legal theory on which he or she can prevail... if the essential facts of some valid cause of action 17 are alleged, the complaint is good against a general demurrer." (Quelimane Co. v. Stewart Title 18 Gziaraniy Co. (1998) 19 Cal.4th 26, 38-39.) California courts must construe complaints "liberally 19 with a view to substantial justice between the parties." (Cal. Code Civ. Proc. ("CCP") I'I452.) 20 B. PLAINTIFF'S ORIGINAL NOTICE WAS SUFFICIENT. 21 As a preliminary matter, Plaintiff s original Notice was sufficient under California law. 22 The purpose of the statutory requirement of notice in the unlawful detainer statute is to give the 23 tenant or subtenant in actual possession, the opportunity to pay the rent and thereby retain 24 possession. (Fifth dh Broadway Partnership v. Kimny, Inc. (1980) 102 Cal.App.3d 195, 202.) The 25 purpose of the notice is to require that alleged breaches be specifically pointed out in the required 26 notice so that they may be remedied within the statutory period. (Julien v. Gossner (1951) 103 27 Cal.App.2d 338, 344.) There is no requirement within CCP sections 1161 or 1162 that the tenant 28 3 OPPOSITION TO DEMURRER OF MIASOLE HI-TECH CORP. TO FIRST AMENDED COMPLAINT - CASE NO. 19CV357293 444797 494 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 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. Here, the Notice stated it was to "all tenants, subtenants and occupants of the premises located at 2590 Walsh Avenue, Santa Clara, CA 95051." (RJN, Exh. A: Exh. 2.) The Notice was both posted on the door to the Property and mailed to "all tenants, subtenants and occupants of the Premises". (RJN, Exh. A: Exh. 3.) Defendant, as the alleged tenant of the Property, was therefore provided proper notice, even if it was not explicitly named in the Notice. The Notice 10 continues to be alleged in the FAC and is the basis for such claims against the defendants. (RJN, Exh. D.) To the extent that Defendant alleges that Plaintiff "impliedly acknowledged that the 12 demurrer... would have been granted without leave to amend" based on the Notice, Defendant's 13 allegation is baseless. To the extent that Defendant alleges the FAC relies on facts other than the 14 Notice as a basis for demuirer, Defendant's Demurer must be overruled. 15 C. PLAINTIFF PROPERLY FILED THE FAC. 16 A party may amend its pleading once without leave of the court at any time after a 17 demurrer is filed but before the demurrer is heard if the amended pleading is filed and served no 18 later than the date for filing an opposition to the demurrer. (CCP $ 472.) California courts grant 19 great liberality in allowing amendment ofpleadings at any stage of the litigation to allow cases to 20 be decided on their merits. (Desny v. 8'ilder (1956) 46 Cal.2d 715, 751.) In fact, a court must 21 grant leave to amend if there is a reasonable possibility the plaintiff could cure defects in their 22 complaint by amending it. (Code Civ. Proc. $472a(c); Schifando v. City of los Angeles (2003) 23 31 Cal.4th 1074, 1081.) When amendment is timely made and will not prejudice the opposing 24 party, it is error to refuse permission to amend and where the refusal also results in a pasty being 25 deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not 26 only error but an abuse of discretion. (Morgan v. Szzperior Court (1959) 172 Cal.App.2d 527, 27 530.) 4 OPPOSITION TO DEMURRER OF MIASOLE HI-TECH CORP. TO FIRST AMENDED COMPLAINT - CASE NO. 19CV357293 444797 4 Plaintiff timely filed the FAC before leave to amend was required. Plaintiff remedied any defect in the original Complaint alleged by Defendant in its demurer prior to such filing. The amendment does not prejudice Defendant as no new facts have been provided which may cause surprise or prejudice to Defendant. Instead, despite Defendant appearing by prejudgment claim following proper notice, detailed supra, Defendant was provided with additional notice of the breach and additionctl time to cure the breach, which Defendant failed to do. Therefore, it would be error to refuse such amendment. Further, Defendant submitted a reply to Plaintiff s opposition to the demurrer, in which it alleged that the FAC rendered the demurrer moot', causing this Court to vacate the demurrer. 10 However, if this Court finds that the FAC should not have been filed, the demtuter would have been wrongly vacated, depriving Plaintiff of its right to asset a meritorious defense to such 12 demurrer. Refusal to allow the FAC to proceed under these circumstances would additionally be 13 abuse of discretion. 14 D. NO NEW COMPLAINT IS REQUIRED. 15 Defendant provides no case law which supports its claim that a new complaint instead of 16 the FAC should have been filed. Defendant's only cited case, Flood v. Simpson (1975) 45 17 Cal.App.3d 644, at page 647, dealt with supplemental complaints; a supplemental complaint is 18 19 not an amended complaint and leaves the original complaint intact. (See generally, Lee v. Bank of America (1994) 27 Cal,App.4ra 197, 214-215 [while a plaintiff was permitted to file an 20 amended complaint as a matter of right without leave to amend, a supplemental complaint 21 requires the peimission of the court].) An amended complaint, unlike a supplemental complaint, 22 supersedes all prior complaints. (Id. at p. 215.) There is no legal requirement that an amended 23 complaint only supplement the original complaint. 24 Regardless, the FAC is based on the same material facts as the original Complaint. The 25 defendants entered into the Lease and the subsequent amendments alleged with Plaintiff, the 26 27 28 'efendant uow alleges that the demuner would have been granted, if heard, as a material basis for its current claims. 5 OPPOSITION TO DEMURRER OF MIASOLE HI-TECH CORP. TO FIRST AMENDED COMPLAINT - CASE NO. 19CV357293 444797 dcc defendants failed to make timely payments under the Lease thereby breaching the Lease, Plaintiff provided notice of the breach through a 3-Day Notice on October 11, 2019, the breach was not thereafter cured by any defendant, and Plaintiff was harmed due to the breach. The original Notice is recited in the FAC in Attachment 8c. (RJN, Exh. D.) Plaintiff additionally recites the added notice and time provided for the defendants to cure the breach through the Second Notice on December 13, 2019, and their failure to do so. (RJN, Exh. D.) Both notices recited an amount owed through October 2019 of $ 519,606.06, the election of forfeiture, and was served in the manner prescribed by statute. (RJN, Exh. D: Exh. 2.) Both notices contain identical language, with the addition of the naming of Defendant in the Second Notice and a changed 10 issuance date. (RJN, Exh. D: Exh. 2.) The demands and notices are otherwise identical and do not alter the grounds upon which the unlawful detainer action against the defendants now arises. 12 Therefore, Defendant's Demurrer must be overruled. 13 14 E. CALIFORNIA LAW PERMITS AMENDMENT UNDER THESE CIRCUMSTANCES. 15 California law permits amendments to add entirely new offenses and causes of action up 16 to and during trial. Even an amendment which gives rise to a separate cause of action is 17 permitted if recovery is being sought "on the same general set of facts," and if the amendment is not prejudicial to the party against whom it is offered. (General Credit Corp. v. Pichel (1975) 44 19 Cal.App.3d 844, 850.) Where is appears from the evidence that the defendant is guilty of 20 unlawful detainer other than the offense charged in the complaint during trial, "the Judge must 21 order that such complaint be forthwith amended to conform to such proofs; such amendment 22 must be made without any imposition of terms. No continuance shall be permitted upon account 23 of such amendment unless the defendant, but affidavit filed, shows to the satisfaction of the 24 Court good cause therefor." (Emphasis added; CCP II'1173.) Even the unlawful detainer UD-100 25 form complaint, approved by the Judicial Council of California, provides a box for "Amended 26 Complaint", demonstrating the liberality at which plaintiffs in unlawful detainer matters are 27 permitted to amend. 28 6 OPPOSITION TO DEMURRER OF MIASOLE HI-TECH CORP. TO FIRST AMENDED COMPLAINT - CASE NO. 19CV357293 444791.do Here, the FAC alleges the exact same offenses and facts as the original Complaint as the basis for the unlawful detainer action alleged. The FAC further alleges an additional notice that was provided to the defendants in which Defendant was formally named, additional time provided to the defendants to cure the breach, and their subsequent failure to cure. There is no basis for denial of such amendments. 6 F. CONSOLIDATION SUPPORTS AMENDMKNT OF THE COMPLAINT. A court may order consolidation of matters when actions involve a common question of law or fact pending before the court and consolidation avoids unnecessary costs or delay. (CCP Ij 1048.) Here, Defendant alleges that Plaintiff must file a new complaint against Defendant. This 10 would result in the current matter continuing against the three (3) other named defendants in this action, in addition to a separate action against Defendant. The dual matters would create 12 unnecessary costs and expense and consume this Court's limited resources. The two (2) matters 13 would turn on an identical set of facts and circumstances, justifying consolidation. It would be 14 highly prejudicial to Plaintiff, in addition to causing significant unnecessary delay and expense, 15 to require a new complaint to be filed in light of this Court's discretion to consolidate any separately filed matters. Judicial economy favors overruling Defendant's demurrer. 17 G. THK FAC PROPERLY DESCRIBES THK ATTACHED NOTICES. 18 There is no uncertainty created by the proper attachment of both the Notice and Second 19 Notice to the FAC. The FAC includes, at Attachment 8c, a thorough description of the notices 20 attached to the FAC, who they were served on, and how they were served. (RJN, Exh. D.) 21 Contrary to Defendant's assertions, Plaintiff can and does rely on both notices, as the Second 22 Notice provided an additional notice and ability for Defendant to cure the breach, which 23 Defendant failed to do. The Second Notice further cures any alleged defects in the original 24 Complaint claimed by Defendant, as Defendant is formally named in the Second Notice (despite 25 no legal obligation to do so). 26 Additionally, a variance between allegations of pleading and proof will not be deemed 27 material unless it has actually misled the adverse party to his prejudice in maintaining his action 28 7 OPPOSITION TO DEMURRER OF MIASOLE HI-TECH CORP. TO FIRST AMENDED COMPLAINT - CASE NO. 19CV357293 444797 doc 10 or defense on the merits. (CCP Ij 469; Frazier v. Yor-Way Market, Inc. (1960) 185 Cal.App.2d 390.) Here, the notices show that "all tenants" of the Property were provided with the original Notice of their failure to pay rent. To the extent that Defendant alleges the Notice did not put it, the alleged tenant, on notice of the breach, Plaintiffprovided the Second Notice, formally naming Defendant, to Defendant and provided additional time for Defendant to cure the breach, which Defendant did not do. This is established in Attachment 8c of the FAC. (RJN, Exh. D.) There appears to be no variance at all between the FAC and its exhibits to cause any uncertainty and it is unclear what prejudice could be caused to Defendant from such explicit description of the notices and service provided to Defendant. Therefore, Defendant's Demurrer should be overruled. 11 12 H. IF PLAINTIFF'S COMPLAINT IS DETERMINED TO BE DEFECTIVE, PLAINTIFF REQUESTS LEAVE TO AMEND IN ORDER TO CURE ANY SUCH DEFECTS. 13 14 15 16 17 18 19 20 21 22 Even where a court grants demurrer, justice demands "great liberality" in granting leave to amend. (Scott v. Indian IYells (1972) 6 Cal.3d 541, 549.) The Couit 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. Ij472a(c); Schifando v. City ofLos Angeles (2003) 31 Cal.4th 1074, 1081.) To the extent that this Comt finds that any allegation in the FAC is uncertain, Plaintiff requests leave to amend to provide such clarification. III. CONCLUSION Based on the foregoing, Defendant's Demurrer should be overruled in full. In the alternative, Plaintiff requests leave to amend to cure any defects alleged. 23 24 25 26 27 Date: January 13, 2020 RANDICK O'DEA TOOLIATOS VERM T tk SARGENT, LLP (tiki~~ Phillip G. Prmont 28 8 OPPOSITION TO DEMURRER OF MIASOLE Hl-TECH CORP. TO FIRST AMENDED COMPLAINT - CASE NO. 19CV357293 I, Sue Betti, declare: PROOF OF SERVICE 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 conespondence 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: 1. OPPOSITION TO DEMURRER OF MIASOLK HI-TECH CORP. TO FIRST AMENDED COMPLAINT 10 ll 12 13 14 15 16 17 18 19 20 2. REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO DEMURRER OF MIASOLE HI-TECH CORP. TO FIRST AMENDED COMPLAINT Attorneyfor Defettdant Miasole Hi-Tee/7 Corp. I 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. (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). 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 Phone: (408) 971-1340 Email: awsullivanlawSamaihcom 21 22 I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on January 13, 2020, at Pleasanton, California. 23 24 25 Sue Betti 26 27 28 PROOF OF SERVICE 444797 dcc