Opposition To Defendants Demurrer To ComplaintOppositionCal. Super. - 2nd Dist.July 1, 2019Electronically FILED by § 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CAPPELLO & NOEL uw» TRIAL LAWYERS A. Barry Cappello (SBN 037835) abc@cappellonoel.com David L. Cousineau (SBN 298801) dcousineau@cappellonoel.com Wendy D. Welkom (SBN 156345) wwelkom@cappellonoel.com CAPPELLO & NOEL LLP 831 State Street Santa Barbara, California 93101 Telephone: (805) 564-2444 Facsimile: (805) 965-5950 Attorneys for Plaintiffs GIBRALTAR 1031 RESTAURANTS NO. 1 MASTER, LLC, a Delaware limited liability company; GIBRALTAR 1031 RESTAURANTS NO. 1 ACQUISITION, LLC, a Delaware limited liability company; LMA HOLDINGS, LLC, a Delaware limited liability company; and RUSSELL GEYSER, an individual Plaintiffs, Vs. WELLS FARGO, N.A., a national banking association, as Trustee for the registered holders of Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-4; LNR PARTNERS, LLC, a Florida limited liability company; KEYBANK, N.A. a national banking association; BERKADIA COMMERCIAL MORTGAGE, INC., a Delaware corporation; and DOES 1 through 20, inclusive, Defendants. perior Court of California, County of Los Angeles on 04/08/2020 09:05 PM Sherri R. Carter, Executive Officer/Clerk of Court, by R. Sanchez, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES Case No.: 19STCV22713 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT Hearing Date: April 21, 2020 Hearing Time: 9:00 a.m. Hearing Dept: 16 [RES.ID.: 264215963400] Complaint Filed: July 1, 2019 Hon. Lia Martin, Dept. 16 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS LL INErOAUCHION......c.etiitciet cect see see sbeebs eae see sa eae ene 2 II. Factual Background ...........coouiiiiiiiiiiieiie cece eters sabes rases saan 2 II Legal ATZUMENL c...oiuiiiiiiitietiieeie eect eee steer e ee be eb sate se esse e bees eu teste e nessa enbeenbe as 4 A. Defendants’ Contractual Limitation Argument Fails Because Only the First and Second Causes of Action Are Based on the Loan Agreement, and The Limitation Does Not Apply to the Conduct Alleged in Those Claims...........c.cceeueneeee. 3 B. The First through Fourth Causes of Action Raise Factual Issues Regarding the Relationship Between Lender, Servicers, and Plaintiffs Which Cannot Be Determined on DEeMUITET ..........coiiviiriiiriiieeieiie secre seeseeeeesee eebe aeesreeseee ene 7 C. The First through Fourth Causes of Action Also Raise Factual Issues Which Cannot Be Determined on DEMUITET .........cocveveeiieiieiieniiiieecie cies e s 9 D. Master Lessee Has Standing To Bring Contract Claims .........c.ccecceeierieniinicnieenennene 10 E. Plaintiffs May Act On Behalf of the TIC OWNErs ........cccceveeviriieneeieiienieicnecieeee 12 F. The Fifth and Sixth Causes of Action are Properly Pled as the Servicer Defendants, if not Agents, Are Strangers to the Contract and Liable for INEETTETENCE e c eee ee sree sree eae 14 G. Plaintiffs Have Stated A Claim for Declaratory Relief ............cccoooiiviiiniiiiiiiin, 16 H. Plaintiffs Have Stated A Claim for Injunctive Relief. ........cccccoviiiiiininoniininnnisnniinnns 16 IV. CONCIUSION «otitis eect eae eae ee see sae ease eaten sae en ees 16 1 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Asahi Kasei Pharma Corp. v. Actelion Ltd. ( 2013) D7, Cl ATRIA DA 5.05 cms sm, ss 2.555050 35030 50580 0.57.8 ESS 55 65 AAR TR A505 15 Banc of Am. Sec. LLC v. Solow Bldg. Co. II, LLC (1st Dept. 2007) AT AD.3A 239 eee eee eee hehehe eset ene hehe eben ent ee ene nee 7 Base Vill. Owner LLC v. Hypo Real Estate Capital Corp. (2012) 02 AD .3A SAT coe heehee tetas ete sheesh tetas nt ante ne anes 7 Beckstead v. Superior Court (1971) 21 CLAPP. TBO... e sb aeeabe sabe e nee e tee ehbeenae ene e eta esbe sabe ennes 5 Berman v. Bromberg (1997) SE Cal AIDA: FB 0550555005050 30.5555 OES £55 053 0 RATA 55 15 Blank v. Kirwan (1985) 39 CAL3A BT Lainie ete eee eae ease estes eh ebsites tetas bestest ene shennan 4 Blankenheim v. E.F. Hutton & Co. (1990) 217 CalLAPP.3A T1403... teehee eset sheesh tetas betes sree eben ens 6 Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal. APP-3A 1371 e e ete teehee ees shee eben enter eben eaes 5 CAZA Drilling (California), Inc. v. TEG Oil & Gas U.S.A., Inc. (2006) VA, CC ATTAIN ESD cc m5 0m 5.575070, 550 F545. 3.55555, 53.85 FS 45.45% 6 Condor v. Home Savings of Am. (C.D. Cal.2010) O80 F.SUPP.2A T1608... eee ete estes ete ete sees asta nese ene sbe nse ebeene an 8 Cruz v. County of Los Angeles (1985) 173 Cal. APP.3A TI3 Teich eae see sees eb esses sete saan teste sbe be eneenea 8 Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. APP. 593 eee te hee tee sheesh teen beeen stents ea ene enes 5 Devash LLC v. German Am. Capital Corp. (2013) LO 5 eB, TL, cme ts mn i505, 70,495, 55 F155. 3.555553. ES 85.65 7 Frantz v. Blackwell (1987) 189 Cal. APP.3d 01 o.oo eee ee seers 4 Freeford Ltd. v. Pendleton (2008) BST INLY.S.2A 62 ee eects st er ae eae t eae ene atte eater eet ete anaeeraeerae ren 8 Grant v. Seterus, Inc. (C.D. Cal. Dec. 9, 2016) DOVE Ws LVOBIBT TB 55 cit ss 5550558800540. 5.5855. EES ES 45.05% 9 Kapsis v. American Home Mortg. Servicing Inc. (E.D.N.Y. 2013) 023 F.SUPP-2A 430. eee eee ee eee sheet eae she shee neers 8,9 Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 2 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 82 CALAPD.ALH 592... eevee eeeeeeeeee sees se sees sess eeee sees se eeee sess sees esses sees seee sesso esse sesso 16 Mendoza v. Rast Produce Co, Inc. (2006) 140 Cal APP.ALh 1395... ects steers sates sees eaae saa e ssa e sete esse esbeesaesseenseseans 2 Meridian Capital Partners, Inc. v. Fifth Ave. 58/59 Acquisition Co. LP (1st Dept. 2009) 00 AD.3A 434 eee eee teehee eaten betes sheen atte este t ante et ene 7 Mertain v. American Home Mortgage Servicing, Inc. (C.D. Cal. 2010) DOLD WIL 11 SUTAGS 5.0. 50.50000 550.5505 055050 5.5585 58555854555 55500555558555.5, 5555055 555.5% 555585 545.55 58 S45 55.55 8 Metropolitan Life Ins. Co. v. Noble Lowndes Int’l. (1994) BA INLY 2A 430 ice tee ete heehee ne t eet eae sheets tetas bestest eran 7 Nu-Life Constr. Corp. v. Board of Educ. Of City of N.Y (1994) 204 AD.2A TOO entices este teehee eae eae ste eb eae sheet estates tennant eren 14 Popescu v. Apple Inc. (2016) I Call APD.Sth 39. eee b ee sabes e ete ehae sabe e ree bae aaa en 15 Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp., U.S.A. (2013) ZZ Cl APD ATI BET 5.500505 55.5005505 505555000 5575055555050 5535005555585, 505 058 5 5 58 ATR 5 5A SRS. 15 Quelimane Co., Inc. v. Stewart Title Guaranty Co. (1998) LO CALliAth 26... eee eee eee shee heehee neta shee heehee tenet enter bes 5 Ramsden v. Western Union (1977) T1 Cal ADPD.3A 873 eects eter teehee sabes e bee ehbe sabe e eet ee ehaeerbe ane eenaaes 8 Redfearn v. Trader Joe’s Co. (2018) 20 Cal APPS OBO... ete sheets esheets hee estates tennant eaen 15 Rescap Liquidating Trust v. First Cal. Mortg. Co., Case No. 18-cv-03283-WHO (N.D. Cal., Oct. 25, 2018), 2018 WL 5310795 eects eters eee eee eae era e saa e teens e te esbeebaessae nse sse anne esse esse eseenes 15 SC Manufactured Homes, Inc. v. Liebert (2008) LBZ NCTA ITE SATIN B58 mn ssn sis tn. 50 0 58 05.483 4.5 0 5 AOS 49 3855 6 Seneris v. Haas (1955) 45 CAl2A 811 uit ete eee eres e shee shee s ease este esbeerae shee ns ease ante esae sane ere enneeneans 9 Sheehan v. San Francisco 49ers, Ltd. (2009) 45 CallAth 992... e cts eh sheets ees teehee ete e see se ante esaeeaae sree nneeneans 5 Velazquez v. GMAC Mortg. Corp. (C.D. Cal. 2008) 005 F.SUPP.2A 1049... cee eects ete teeta esses ete e este esaeesee ssa ens esse esse esse esaenes 8 Statutes Cal. CIVIL €OA@ § TO68.........ooeieeeiieeie eters ee etter testes tesserae etae esa e see ss esse esbe esse sree ns eens esse esse esees 6 Other Authorities 1 Witkin, Summary of California Law, Contracts, § 605 ..........ccceevueeiiiiiiiiiniienie eee ee es 8 3 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Witkin, Summary of California Law, Contracts, § 740 ........ccccevieeiiiiiiiniieeie cites ever Restatement (Second) of Contracts § 195(1) c..occueriiiiiieiieiieeeee eects eee sae seen 4 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION The question for the Court to resolve on this demurrer is whether the Complaint, liberally construed, states a cause of action; and nothing more. It is not to decide hotly disputed factual issues beyond the Complaint allegations, nor the merits of Defendants’ (hearsay) and contested defense, despite the Defendants’ repeated attempts to insert these evidentiary matters into this demurrer often and prominently. The instant Complaint reflects the reality that the relationships between the Servicer Defendants, the Trust, and the Plaintiffs are factually complex. Accordingly, because Plaintiffs are in doubt about what will be established by the evidence, they properly pleaded alternative legal theories. (Mendoza v. Rast Produce Co, Inc. (2006) 140 Cal.App.4th 1395, 1402.) For example, the Servicers might be directly liable for breach of contract on the written documents; or, alternatively, they might be liable for interference if they are not determined to be directly liable. But which theory applies will require resolution of disputed facts, and is thus inappropriate to determine on demurrer. The Servicer Defendants here attempt to elude liability under all the potential theories, under a heads-I-win (i.e., not directly liable for contract), tails-you-lose (i.e., not a stranger to the contract so not liable for tort) set of arguments, flatly ignoring that each of the legal theories could apply, depending on the evidence to be adduced. The Complaint alleges that self-interested servicers of a syndicated loan created a non-existent default. It alleges that the spurious default allowed the servicers to act against the best interests of the Lender/Trustee and the Certificate holders. The alleged default halted a sale of a property, which would have benefited the Lender by reducing the outstanding principal, and placed a halt on the process which otherwise might have paid off the Lender in full. Those are the allegations before this Court. And those allegations properly state several claims, under several different theories, as detailed below. As a result, the demurrer should be overruled. II. FACTUAL BACKGROUND Plaintiff Gibraltar 1031 Restaurants No. 1 Acquisition, LLC (“Acquisition LLC”) borrowed $14,800,000 to finance the purchase of 10 restaurant properties in various states. (Complaint (“Cplt.”) at. q 17.) It also offered investors equity interests in the form of tenancies-in-common 2 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (“TIC Owners”) in the restaurant portfolio. (Id. at 4 15.) The original parties to the Loan Agreement included Bear Stearns, the original lender, Acquisition LLC, and plaintiff Gibraltar 1031 Restaurants No. 1 Master, LLC (“Master LLC”). (Id. at 18.) Master LLC is the designated representative of the TIC Owners in dealing with the lender. (/d. at q 4.) The original loan was securitized and now is apparently held by defendant Wells Fargo, N.A., as Trustee for the benefit of the registered Certificate holders. (/d. at 7.) Defendant LNR Partners, LLC (“LNR”) is a special servicer, with other defendant servicers. The original Loan Agreement had a maturity date of July 1, 2035, but an Anticipated Repayment Date (“ADR”) of July 1, 2010. (Id. at 920.) ADR interest accrued after the ADR date at an accelerated rate. (/d..) In 2014, the parties negotiated a Loan Modification Agreement (“Loan Modification”) which changed the original Loan Agreement in several key ways. (Cplt. 21.) ADR interest, default interest, and late charges were deferred in the total amount of approximately $4.5 million, and were to be waived if the loan was repaid by mid-2021. (/d. at 21(a).) Critically, the Loan Modification also gave the borrower the right to receive approval for - and gave the lender the obligation to approve - partial releases of the properties so long as the following criteria were met: (1) the property could not be sold to an Affiliate; and (2) the release price was greater than certain price points. (Id. at q 22; see, Cplt. Exh. C (Loan Modification) at §§ 2.7, 2.7.1, 2.7.2 and appendix A (Allocated Loan Amounts) Under the Loan Modification, the lender enhanced its likelihood of complete payoff; and the borrower was incentivized to sell off the properties and reduce the debt as soon as possible. (Cpl at q 23.) The borrower was well on its way to complete payoff, achieving four partial releases between 2015 and February 28, 2019. (Cplt. at 925, 26, and 29The borrower also had a pending request, made on or before January 3, 2019, for a fifth partial sale, of a property in Trevose, Pennsylvania. (Id. at 9 30.) It is uncontested that the fifth requested sale conformed to all requirements under the Loan Modification. (/d..) Despite knowledge of the pending sale request, the Loan was transferred from one servicer to LNR, and on May 15, 2019, the Lender and/or LNR alleged a default, accelerated the note, and rejected the sale request based solely on the alleged default. (/d. at § 34.) The reason for the alleged default: the sale of the fourth property was allegedly made to an Affiliate. 3 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Id. at 9 35.) The Loan Agreement expressly defines Affiliate, however, in terms which clearly do not include the purchaser of the fourth property. (Cplt. at 9 35) An “Affiliate shall mean, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with such Person or is a director or officer of such Person or of an Affiliate of such Person.” (Cplt. Exh. A, Loan Agreement § 1, p. 1.) The buyer of the fourth property was not an officer, director, or employee of, and had not worked for, any of the Gibraltar entities for more than a decade. (Cplt. 935.) LNR called the default, by means of a defamatory letter to plaintiffs LMA Holdings and Russell Geyser, copied to all TIC Owners, before researching its facts. There is no question that the buyer was not an Affiliate of any Gibraltar-related party, and, while LNR has since backtracked from its initial manufactured excuse, it has not lifted the claimed default nor allowed further partial sales. (Cplt. at §36.") LNR’s purpose is self-interest: after claiming a default, it may collect millions of dollars in previously waived deferred interest, under its separate Pooling and Servicing Agreement with the Trustee/Lender. (Id. at q 38.) This LNR strategy works directly counter to the interest of the Trustee/Lender and the Certificate holders, however, all of whom might well have been fully paid off by now, by ongoing partial releases of properties. (/d.) Plaintiffs filed suit in July, 2019. III. LEGAL ARGUMENT A demurrer challenges only facial defects in the complaint, including its exhibits, or matters that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) The complaint is given a reasonable interpretation, reading it as a whole and its parts in their context. (Kirwan, supra, 39 Cal.3d at 318.) The demurrer admits all material facts alleged and assumes their truth. (/bid.; see also, Sheehan v. San Francisco 49ers, Ltd. ' A demurrer should not raise factual issues, but take the allegations of the Complaint as true. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Plaintiffs object to the Defendants’ Request for Judicial Notice “(RIN”) exhibit 2, in its entirety, as it is hearsay patently offered for the truth of the matter and on other grounds (see, Plaintiffs’ Objections to Defendants’ RIN), and to which Plaintiffs are unable to present controverting evidence in the context of the present non-evidentiary demurrer. 4 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (2009) 45 Cal.4th 992, 998 (on demurrer, all facts alleged in the complaint are assumed to be true); Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App.3d 593, 604 (facts assumed true no matter how unlikely).) Moreover, if the complaint states any valid claim entitling the plaintiff to relief, the complaint is good against a general demurrer. (Quelimane Co., Inc. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38; see also, Sheehan, supra, 45 Cal.4th at 998.) Finally, if there is any reasonable possibility that a defective pleading may be cured by amendment, the Court should grant leave to amend. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1387; see also Beckstead v. Superior Court (1971) 21 Cal. App.3d 780, 782 (denial of leave to amend is an “extraordinary judicial procedure”.) A. Defendants’ Contractual Limitation Argument Fails Because Only the First and Second Causes of Action Are Based on the Loan Agreement, and The Limitation Does Not Apply to the Conduct Alleged in Those Claims Defendants first contend that the first through sixth causes of action all fail because the Loan Agreement limited the Borrower’s remedies to injunctive or declaratory relief where there has been unreasonable delay. (Def. Br. at § IV.A.) Defendants are wrong.> Indeed, Defendants’ argument has been rejected previously in a case involving similar LNR misconduct and claim that remedies were limited. As explained by that Court: The Court is fully satisfied, however, that Plaintiffs’ claims are not for unreasonable conduct but for intentional action on the part of the Defendants. Reading the Complaint and the allegations, some of which are quoted above, is convincing that intentional conduct is at the heart of the Amended Complaint. The exculpatory clause obviating liability for unreasonable actions does not address breach of contract, intentional torts or other intentional conduct.” (NNN 400 Capitol Center, LLC, et al. v. Wells Fargo Bank, N.A, et al. [In re: NNN 400 Capital Center 16, LLC, et al.), Case No. 16-12728(KG), Adv. Pro. No. 18-50384(KG), (Del. Bkcy., Oct. 4, 2018), at p. 14, emphasis added. 2 Only the first two causes of action are contract claims based on the Loan Agreement, as modified by the Loan Modification. (Cplt. 4 40-49.) The alleged limitation therefore cannot apply to the Third or Fourth Causes of Action (claims by guarantors under guaranty with no such limitation), nor to the Fifth or Sixth Causes of Action (tort claims under California law), and the demurrer should be overruled as to those causes in any event. 5 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, as in NNN 400, the limitation clause in Loan Agreement § 10.12 only applies “in the event that a claim . . . is made that Lender or its agents have acted unreasonably or unreasonably delayed acting . . ..” (Cplt. Exh. A, p. 85 (Loan Agreement) § 10.12.) But this case is not based on unreasonable delay in granting approval. This is a case where the Defendants have rejected the pending sale, based on a manufactured and nonexistent default, and arbitrarily halted all partial property releases going forward. The Complaint alleges this was done so the servicer could claim for itself the benefit of previously-waived interest, and not for the benefit of the Trustee/Lender. There is no commercial good faith basis for halting a property sale which would give the Trustee/Lender the proceeds of the sale. Here also, as in NNN 400, Plaintiffs allege intentional conduct in creating a false claim that Plaintiffs breached, which was pursued against the principal’s interest and solely to benefit the servicer. This is not negligent conduct that the exculpatory limitation covers, and the limitation should not be deployed here. Moreover, to the extent that the language is ambiguous, Plaintiffs’ construction should be accepted. (SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal. App.4th 68, 83 (“if the exhibits are ambiguous and can be construed in the manner suggested by plaintiff, then we must accept the construction offered by plaintiff”) .) Additionally, calling a false default and then imposing default penalties based on that spurious default constitutes fraudulent misrepresentation. Public policy precludes parties from attempting contractually to exempt themselves from their own fraud. Cal. Civil Code § 1668; see also, CAZA Drilling (California), Inc. v. TEG Oil & Gas U.S.A., Inc. (2006) 142 Cal. App.4th 453, 468 (granting summary judgment based on clause exempting party from negligence, not from fraud, and where public policy was not implicated); Restatement (Second) of Contracts § 195(1) (“A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy); Blankenheim v. E.F. Hutton & Co. (1990) 217 Cal.App.3d 1463, 1471-3 (rejecting hold-harmless clause which attempted to exempt defendant from responsibility for its own misrepresentations). Here, Defendants improperly seek protection from Plaintiffs’ claim that they falsely declared a nonexistent breach of contract. Such protection is simply not permitted. New York law is in accord. See, e.g., Banc of Am. Sec. LLC v. Solow Bldg. Co. II, LLC (1st 6 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dept. 2007) 47 A.D.3d 239 (declining to dismiss case based on contract limiting remedy to specific performance when enforcement of limitation would grant immunity to the intentional misconduct alleged); see also, Meridian Capital Partners, Inc. v. Fifth Ave. 58/59 Acquisition Co. LP (1st Dept. 2009) 60 A.D.3d 434, 434 (intentional wrongdoing unrelated to any legitimate economic self- interest rendered limitation unenforceable). Indeed, the cases on which Defendants rely prove this point. In Devash LLC v. German Am. Capital Corp. (2013) 104 A.D.3d 71, 77, the court affirmed the dismissal of the case because, unlike in Solow or Meridian Capital, the servicer wrongdoing that could preclude enforcement of the limitation was not present. Rather, the servicer was acting to maximize the benefit to the lender. Likewise, in Base Vill. Owner LLC v. Hypo Real Estate Capital Corp. (2012) 92 A.D.3d 541, 541, the Court also noted that the type of misconduct that would smack of intentional wrongdoing or bad faith was not present, which is unlike the instant case. In Metropolitan Life Ins. Co. v. Noble Lowndes Int’l. (1994) 84 N.Y.2d 430, 438-439, the Court also acknowledged that a limit on liability would not be enforceable if the conduct at issue was tortious in nature. Here, the Complaint alleges that the Defendants’ claim of default and further actions were not taken to maximize the Trustee/Lender’s economic benefit. To the contrary, the actions prevented the Plaintiffs from performing on the Loan Modification, diminished the value of the Trust’s property collateral, and reduced both the immediate and potential payoff to the Trust. (Cplt. 99 28, 38, 47.) These actions are alleged to be taken intentionally, purely to feather LNR’s nest in the amount of millions of dollars rather than benefit the Trust or the Certificate holders. (Id. ¥ 38.) Such conduct is not condoned in either California or New York, and the demurrer should be overruled as a result. B. The First through Fourth Causes of Action Raise Factual Issues Regarding the Relationship Between Lender, Servicers, and Plaintiffs Which Cannot Be Determined on Demurrer The Servicer Defendants’ lack-of-privity argument misstates the law. (Def. Br. at § [V.B.) Privity of contract is a fact-specific analysis that is not appropriate on demurrer. Both New York and California courts acknowledge that privity of contract may exist between a non-party and a party 7 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to a contract, depending on the nature of the relationship between the servicer and the borrower and whether there has been a valid assignment of contractual duties to the servicer, and/or whether the servicer is acting as agent. Thus, New York courts have repeatedly held that a “functional equivalent” of privity may be established to render a non-party liable to a party for breach of contract. Determining the existence of such privity is a “highly fact-dependent endeavor which must consider the de facto dealings between the relevant parties as well as the language of the relevant contracts.” (In re Cavalry Construction, Inc., 2013 WL 5682741 at *3 (Bankr.S.D.N.Y. 2013); see also Kapsis v. American Home Mortg. Servicing Inc. (E.D.N.Y. 2013) 923 F.Supp.2d 430 (granting leave to amend under theory that privity can be imputed to loan servicer because it was acting as the agent of the contracting party). Here, a fact-specific inquiry is not an issue for demurrer. California courts also have repeatedly held that a demurrer is “simply not the appropriate procedure for determining the truth of disputed facts.” (See e.g. Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134; Ramsden v. Western Union (1977) 71 Cal. App.3d 873, 879.) California federal courts addressing other loan disputes reject analogous motions to dismiss where factual issues are present. For example, in Velazquez v. GMAC Mortg. Corp. (C.D. Cal. 2008) 605 F.Supp.2d 1049, servicer defendant moved to dismiss plaintiff’s breach of contract claims, arguing it was not a party to the note, had no contract with plaintiffs, and therefore could not be liable. However, the District Court held it was “inappropriate” to preclude Plaintiff's breach of contract theory on a motion to dismiss, noting that “in some contexts assignees may be sued for breach of contract.” (Id. at 1072, citing 1 Witkin, Summary of California Law, Contracts, §§ 665, 740 (10th ed. 2005); see also Mertain v. American Home Mortgage Servicing, Inc. (C.D. Cal. 2010) 2010 WL 11507463 at *7 (granting leave to amend to allege breach of contract against non-party loan servicer).) Defendants’ case authorities do not compel a different result. For example, in Freeford Ltd. v. Pendleton (2008) 857 N.Y.S.2d 62, 67, while the court acknowledged the existence of the general rule on which Defendants rely here, the court found it did not apply. Likewise, in Condor v. Home Savings of Am. (C.D. Cal.2010) 680 F.Supp.2d 1168, 1174, while the court noted there were cases 8 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 finding a loan servicer was not a party to a deed of trust or mortgage, it did not address the fact- intensive agency question and granted the motion to dismiss simply because of a lack of adequate allegations. Similarly, in Grant v. Seterus, Inc. (C.D. Cal. Dec. 9, 2016) 2016 WL 10988678, at *10, while the court acknowledges that a servicing contract can establish agency between the lender and servicer, it does not consider the fact that the same agency can establish privity with the borrower. Here, not only does the Complaint allege the agency of the servicers (Complaint q 1), but numerous factual issues on the relationship between Plaintiffs, the Trust and the Servicers require resolution before a determination can be made whether privity of contract exists.’ C. The First through Fourth Causes of Action Also Raise Factual Issues Which Cannot Be Determined on Demurrer Defendants’ agency argument ignores California Civil Code section 2343, which states an agent is independently liable as a principal when it acts in a wrongful manner. (Def. Br. at § IV.C.) The instant Complaint alleges that the Servicer Defendants acted wrongfully, against the best interests of the Trust, and manufactured nonexistent defaults. (Cplt. 9 34, 36, 38.) As a result, the Complaint raises factual issues for resolution. (See, e.g., Seneris v. Haas (1955) 45 Cal.2d 811, 814 (agency is generally a question of fact, unless the evidence is susceptible only to a single inference).) New York law is in accord. (See, e.g., Kapsis , supra (leave to amend granted as to loan servicer acting as agent of contracting party).) Here, there are unresolved evidentiary questions whether the servicers were in fact acting as agents, and within the scope of their duty, or beyond the bounds of the scope of their alleged agency. As indicated initially, Plaintiffs have pled facts which - depending on the evidence to be adduced - will result in different theories being applicable. One of those theories, if the Servicers are strangers to the Loan Documents, is interference. See section F, below, which is incorporated herein. This is simply not the proper context in which to determine if the evidence will demonstrate that the servicers acted as agents or did not act as agents. 3 If the Court finds the allegations as pled are insufficient, Plaintiffs request leave to amend to include additional factual allegations regarding their ongoing and constant dealings with Servicer Defendants. 9 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. Master Lessee Has Standing To Bring Contract Claims Defendants are also mistaken in arguing that Master LLC (the Master Lessee) is neither a party to the Loan Documents nor a third-party beneficiary. (Def. Br. at § IV.D.) But it is clearly a party as shown on the original Loan Agreement cover page, stating the Agreement is between Acquisition LLC (as Borrower); Master LLC (as Master Lessee); and Bear Stearns (as Lender). Cplt. Exh. A, p. 21.) Master LLC is also listed as a contracting party in the preamble of the Loan Agreement, at the first paragraph, and in the following statement: “WHEREAS, Master Lessee is an affiliate of Borrower and will derive material benefits from the Loan, and in consideration thereof desires to join this Agreement and to secure the payment of the Debt and the performance of all of its obligations under the Note, the Loan Agreement and the other Loan documents; . .” (Id. at Exh. A, p. 28) Master LLC and the Master Lease are also specifically defined in the Loan Agreement; “Manager” is defined to mean Master LLC or another qualified manager; and the Loan Documents are collectively defined to include, inter alia, the Loan Agreement, the Assignment of Management Agreement, and all other documents “executed and/or delivered by Borrower or any Guarantor in connection with the Loan.” (Cplt. at Exh. A p. 35; see also, Exh. A at p. 38 (Master LLC is a Qualified Manager).) Master LLC and Borrower made comprehensive representations related to the Leases. (Id. at Exh. A, p. 67-68, § 4.1.26; see also, Exh. A at p. 70, § 4.1.39 (Master Lease is a valid obligation of Borrower and Master LLC).) Master LLC was expressly designated to keep and maintain all financial and accounting records. (/d. at Exh. A, pp. 74-75, § 5.1.11.) It was also designated to perform all obligations under the Leases, and to fund the Master Lease Reserve. (/d. at Exh. A, pp. 76-78, §§ 5.1.20, 5.1.21, and p. 99, § 7.4.) Events of Default included certain potential actions of the Master LLC. (/d. at Exh. A, pp. 100-102, § 8.1 _ .) Master LLC also signed an express Joinder to the Loan Agreement, which included Master LLC’s multiple acknowledgements, covenants and representations. (/d. at Exh. A, pp. 119.) Master LLC also agreed “to comply with all of the terms and conditions set forth in this Agreement to the extent such matters are in the control of Master Lessee.” (Id.) Those terms and conditions which were in the control of the Master Lessee related, inter alia, to its obligations under both the Tenants 10 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in Common Agreement (“TIC Agreement”), and under the Master Lease. In the Lender-approved TIC Agreement (See Cplt. at Exh. A, p. 45), Master LLC was charged with acting as the TIC Owners’ agent in all interactions with the lender, and expressly appointed to “seek and/or negotiate the terms of (a) permanent and other financing for the Properties, including loans secured by the Properties, . . . and (c) the sale of the Properties.” (See, Def. RIN Exh. 1 at § 4.1.) Master LLC was also expressly designated to communicate with the Lender and to “sign or execute documents and negotiate any changes to the Loan documents on behalf of each Tenant in Common with respect to any transaction relating to the Loan ..” (Id. at § 5, emphasis added.) In like fashion, the Master Lease Agreement irrevocably designated Master LLC as agent to execute all documents, and gave Master LLC the exclusive rights to obtain/arrange financing or refinancing of the properties and to market the properties. (See, Plaintiffs’ Request for Judicial Notice (“PRIN”), Exh. A (Master Lease Agreement) at §§ 18.1, 18.2, 18.3, 18.4, emphasis added.) All of the above contracts must be construed together as comprising one transaction. See, Cal. Civil Code § 1642 (“Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together”). There is no question that Master LLC, as the expressly-identified agent for the TIC Owners/Landlords/Borrowers to negotiate with the Lender, was charged with negotiating with the Trustee/Servicers for a viable Loan Modification, and with potential third parties for partial sales. Accordingly, it is a party: under the Loan Documents, it was included as a party; it undertook obligations related to the Loan; and it was the designated agent of the TIC and Landlord Owners in dealing with the lender, the Loan transactions and sales. It has standing as a party to assert contract claims for Defendants’ impairment of its ability to perform its obligations. Defendants also misread the Loan Agreement, when they contend that the following language precludes Master LLC’s contract-related claims for damages: “This Agreement and the other Loan Documents are solely for the benefit of Lender and Borrower and nothing contained in “If not as a party, Master LLC certainly has standing as a third-party beneficiary. The Loan Documents intended to benefit Master LLC, as part of the transaction. See, e.g., CACI 301. 11 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or there.” (Def. Br. at 10:7-10.) But that provision merely relates to contract claims for specific performance.’ The instant First, Second, and Fifth Causes of Action seek damages, only, not specific performance. The Defendants’ contention that the Loan Agreement states there are no third-party beneficiaries is likewise off the mark. (Def. Br. at 10:6-7.) There is no such statement in the body of the Loan Agreement. The language, “No Third Party Beneficiaries,” is merely part of the heading for Section 10.16, and nothing in the body of that section supports the Defendants’ position. Rather, the only “beneficiary” reference in section 10.16 is expressly tied to the “conditions to the obligations of Lender to make the Loan,” i.e., conduct which is no longer at issue, as the loan was made. And Section 10.8 expressly states: “The Article and/or Section headings . . . in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.” (Cplt. Exh. A, § 10.8, p. 112.) The heading is therefore a nullity. As explained above, Master LLC is a party to the Loan Agreement and to other Loan Documents, i.e., the numerous other documents “executed and/or delivered” in connection with the Loan. (Cplt. Exh. A at p. 35.) It therefore has standing to assert contract and other claims related to the Loan transaction, and the demurrer should be overruled. E. Plaintiffs May Act On Behalf of the TIC Owners Defendants also challenge Acquisition LLC and Master LL.C’s ability to sue on behalf of the TIC Owners. (Def. Br., § E.) Defendants’ contentions are wrong. It is undisputed that Acquisition LLC signed the Loan Agreement and Loan Modification; it can therefore assert its own claims. And Master LLC is properly acting as the designated representative of the TIC Owners in asserting their > If the meaning of words in a contract is disputed, the issue is one of fact, and the trial court must consider extrinsic evidence, even if the contract seems unambiguous on its face. Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912. Moreover, on demurrer, the Plaintiffs’ construction is to be accepted. SC Manufactured Homes, supra, 162 Cal.App.4th at 83. Here, the issue is factual and not properly determined on demurrer. 12 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 claims. (Cplt. 94.) The instant TIC Agreement is governed by California law. (Def. RJN Exh. 1 at § 10.5.) California Code of Civil Procedure section 369(a) provides: “The following persons may sue without joining as parties the persons for whose benefit the action is prosecuted: . . (3) . . . a person with whom . . . a contract is made for the benefit of another.” Here, the TIC Agreement recites that the properties will be subject to the Master Lease and to the “Loan Documents,” and that the TIC Owners desire to provide “for the orderly administration of their rights and responsibilities as to each other and as to others and to delegate authority and responsibility for the intended further operation and management of the Properties.” (Id.atp. 1, 49 A, B, C, emphasis added.) Master LLC joined in the TIC Agreement for the purposes of “accepting its rights, and agreeing to be bound by its obligations, provided for in sections 3, 4, 5, 6, 8, and 9 of the Agreement.” (Def. RJN Exhibit 1 at p. 2-5.) Those rights included, as set forth above, the right to act as the TIC Owners’ agent in all matters related to the lender, which involved, inter alia, the right to “negotiate any changes to the Loan documents on behalf of each Tenant in Common with respect to any transaction relating to the Loan.” (ld. at § 5, emphasis added.) In such capacity, Master LLC had negotiated the Loan Modification and was in the process of selling properties for the TIC Owners. Moreover, Master LLC is obligated to distribute proceeds under the TIC Agreement at Section 4.2, and as directed in Section 2. Section 2, in turn, directs that “all benefits . . of the ownership of the Properties, including, without limitation, income, operating expenses, proceeds from sale or refinance or condemnation awards shall be shared by the Tenants in Common in proportion to their respective undivided interests in the Properties.” (Id. at § 2, emphasis added.) In other words, just as alleged in Complaint 9 4, Master LLC is the authorized agent of the TIC Owners with respect to lender matters; it has accepted the fiduciary obligation to distribute all benefits or proceeds from this action, if any, to the TIC Owners as provided in the TIC Agreement; and it is a party to the Master Lease and Loan Agreement, as well. It is therefore authorized by each of the TIC Owners/Landlords to proceed with these claims. 13 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Defendants’ primary argument is that no one TIC Owner can represent all of the TIC Owners. (Def. Br. at 11:1-12:3.) That argument mistakes the nature of the relationship between the TIC Owners and Master LLC, however. As explained above, Master LLC is the authorized fiduciary and agent to bring these claims for all of the TIC Owners, and to distribute any proceeds. This vitiates the Defendants’ primary argument. The Defendants’ secondary argument is that the TIC Owners should be joined as indispensable parties. (Def. Br. at 12:4-13:15.) This argument is also wrong because, as alleged in the Complaint at 4 4 and as demonstrated by the various agreements, the TIC Owners have delegated to Master LLC the responsibility to take care of the TIC Owners’ matters with the lender, the Loan Documents, and the properties. The Demurrer on these points should be overruled. F. The Fifth and Sixth Causes of Action are Properly Pled as the Servicer Defendants, if not Agents, Are Strangers to the Contract and Liable for Interference The Servicers argue that they are agents of the Trust so cannot be liable for interference with either the Trust’s Loan Modification or guaranties. (Def. Br. § F.) This argument essentially contradicts their prior “no privity” arguments, demonstrating effectively that liability should exist under some theory. But whether they are agents is a factual issue. As set forth above in sections B and C, and depending on the facts to be discovered, the Servicers’ conduct may not be that of an “agent” acting within the scope of its retention, on behalf of its principal. ® In fact, the Pooling and Servicing Agreement expressly rejects categorizing the servicers as agents of the Trust. It provides: “The relationship of each of the Master Servicer and the Special Servicer to the Trustee and, unless they are the same Person, each other under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venture, partner or agent.” (PRIN, Exh. B, at Article, § 3.01 (d), emphasis added.). Moreover, the Complaint expressly alleges that the servicers were not acting on behalf of the Trust, but contrary to the Trust’s ® While not applicable to these California tort claims, New York law is in accord. In Nu-Life Constr. Corp. v. Board of Educ. Of City of N.Y (1994) 204 A.D.2d 106, 107, leave dismissed 84 N.Y.2d 850 (1994), the Court explained that it is only when an agent “is acting on behalf of [its] principal and within the scope of [its] authority” that it could not be held liable. 14 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 interests. (Cplt. 9 38.7) If the facts pled, liberally construed, demonstrate that the servicers were not acting as agents of the Trust, they are not immune from tort liability for interference. (See, e.g., Redfearn v. Trader Joe’s Co. (2018) 20 Cal. App.5th 989, 1003 (defendant “who is not a party to the contract or an agent of a party to the contract is a ‘stranger’ for purposes of the tort of intentional interference with contract. A nonparty to a contract that contemplates the nonparty’s performance, by that fact alone, is not immune from liability for contract interference”); see also, Asahi Kasei Pharma Corp. v. Actelion Ltd. (2013) 222 Cal. App.4th 945, 966 (no immunity for corporation that interfered with contract, solely because it had an ownership interest in a subsidiary that was a party to the contract); Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp., U.S.A. (2013) 221 Cal.App.4th 867, 825 (franchisor who interfered with a contract between the franchisee and a buyer was a stranger to that contract and liable for interference); Popescu v. Apple Inc. (2016) 1 Cal. App.5th 39, 66 (employee who was terminated by employer at the insistence of a third party could properly assert tortious interference claim against the third party).) Nor is a nonparty immune from interference liability by virtue of having an economic interest in the other parties’ contract. As explained by the Court in Rescap Liquidating Trust v. First Cal. Mortg. Co., Case No. 18-cv-03283-WHO (N.D. Cal., Oct. 25, 2018), 2018 WL 5310795, at p. 6: In recent cases, the Ninth Circuit and California Courts of Appeal have found that an extension of Applied Equipment’s holding to immunize a third party from tortious interference claims simply because the third party asserts some economic or other interest in a contract would significantly undercut the tort itself and the public policy underlying it. [] A party with an economic interest in a contractual relationship could interfere without risk of facing either tort or contract liability. [] This result is particularly perverse as it is those parties with some type of economic interest in a contract whom [sic] would have the greatest incentive to interfere with it. § It would appear that the stranger test relied on by defendants is no longer good law . . . (Citations and quotations omitted.) The above quotation perfectly captures the problem presented by the Servicer Defendants 7 To the extent the Defendants point to Plaintiffs’ identification of the servicers as “agents,” the Complaint allegations were only made on information and belief. Cplt. 42. Whether agency exists is a legal conclusion to be drawn from facts. See, e.g., Berman v. Bromberg (1997) 56 Cal. App.4th 936, 948 (evidence will determine whether the parties had an agency relationship or not). 15 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 here: i.e., they have the greatest incentive to interfere without facing any potential liability. Here, however, factual issues remain to be determined. The Servicers may or may not be agents; they may or may not be acting outside of their authority; and they may in fact be what they contractually state they are in their Pooling Agreement, i.e., not agents at all. But this demurrer is not the time to determine those issues. The demurrer should be overruled. G. Plaintiffs Have Stated A Claim for Declaratory Relief Defendants’ argument that Plaintiffs’ declaratory relief claim is merely duplicative misreads that claim. (See, Def. Br. at § G.) The claim is not duplicative, because it is forward-looking. Should Plaintiffs prevail on their contract and tort claims, then the declaratory relief claim will ensure that Defendants change their policies on future partial releases. (See, Cplt. 9 77-79.) Moreover, the sole basis for Defendants’ argument is apparently their assumption that all of the Plaintiffs’ claims are “untenable.” (Def. Br. at 14:24-25.) As explained above, however, Plaintiffs’ claims are properly pled, defeating the demurrer. (See, Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 606.) The demurrer should be overruled. H. Plaintiffs Have Stated A Claim for Injunctive Relief. Finally, Defendants attack Plaintiffs’ claim for injunction. Again, the basis for this argument is that the substantive claims underlying the need for injunctive relief are not valid. (Def. Br. § H.) And again, as explained above, the underlying claims are validly pled. To the extent that Defendants also contend that damages are an adequate remedy, that is not the case. Plaintiffs have alleged ongoing and wrongful conduct for which injunctive relief is required to ensure that Defendants’ conduct is appropriately directed going forward. IV. CONCLUSION For the reasons set forth above, Plaintiffs request that the Court overrule the demurrer in its entirety. Should the Court deem that amendment is necessary, however, Plaintiffs request that they be granted leave to amend. 16 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: April 8, 2020 CAPPELLO & NOEL LLP By: __ /s/ David L. Cousineau A. Barry Cappello David L. Cousineau Wendy D. Welkom Attorneys for Plaintiffs 17 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA I am employed in the County of Santa Barbara, State of California. I am over the age of 18 years and not a party to this action. My business address is 831 State Street, Santa Barbara, California 93101. On April 8, 2020, I served the foregoing document described as PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT on the interested parties in this action: SEE ATTACHED SERVICE LIST 0 BY U.S. POSTAL SERVICE: This document was served by United States mail. I enclosed the document in a sealed envelope or package addressed to the person(s) at the address(es) above and placed the envelope(s) for collection and mailing, following our ordinary business practices. I am readily familiar with this firm’s practice of 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 of business with the United States Postal Service at Santa Barbara, California, in a sealed envelope with postage fully paid. 0 BY OVERNIGHT DELIVERY: The document(s) were served by overnight delivery via FedEx. I enclosed the document in a sealed envelope or package addressed to the person(s) and the address(es) above and placed the envelope(s) for pick-up by FedEx. I am readily familiar with the firm’s practice of collection and processing correspondence on the same day with this courier service, for overnight delivery. BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 0 BY HAND DELIVERY: The document(s) were delivered by hand during the normal course of business, during regular business hours. (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. a (Federal) I declare that I am employed in the office of a member of the Bar of this Court, at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on April 8, 2020, at Santa Barbara, California. /s/ Mandy Duong Mandy Duong 18 OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Heather Deans Foley Christina M. Nordsten VENABLE LLP 2049 Century Park East, Suite 2300 Los Angeles, CA 90067 Telephone: (310) 229-9900 Facsimile: (310) 229-9901 Email: hdfoley@venable.com OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT SERVICE LIST 19
