Request Judicial Notice

Cal. Super. - 6th Dist.November 24, 2020

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNERLAW GROUP, PC 800 S. Broadway, Suite 200 Walnut Creek, California 94596 200V373964 Santa Clara - Civil Clifford R. Homer, Esq., State Bar No. 154353 Brendan J. Dooley, Esq., State Bar N0. 162880 HORNER LAW GROUP, PC 800 S. Broadway, Suite 200 Walnut Creek, California 94596 Telephone: (925) 943-6570 Facsimile: (925) 943-6888 Attorneys for Plaintiffs Kam Hong Lui, Jun Lu, and Stanford Education Foundation Group, LLC A. Floresca Electronically Filed by Superior Court of CA, County of Santa Clara, on 5/24/2021 4:55 PM Reviewed By: A. Floresca Case #20CV373964 Envelope: 6509819 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED JURISDICTION KAM HONG LUI, an individual, JUN LU, an individual and STANFORD EDUCATION FOUNDATION GROUP, LLC, a California limited liability company Plaintiff, VS. ZHEN ZHEN LI, an individual; KEEN WEI, an individual; DAVID LUO, an individual; ALLIANCE ONE INVESTMENT, LLC, an entity 0funknown form; MEHRANFAR INVESTMENT GROUP, an entity ofunknown form; and DOES 1-100 Defendants. / N0. 20CV373964 PLAINTIFFS’ KAM HONG LUI, JUN LU, AND STANFORD EDUCATION FOUNDATION GROUP, LLC’S SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THEIR OPPOSITION TO DEFENDANT MEHRANFAR INVESTMENT GROUP’S ANTI-SLAPP MOTION Date: May 27, 2021 Time: 9:30 a.m. Dept.: 19 Judge: Hon. Peter H. Kirwan Pursuant t0 California Evidence Code §§ 451, 451 and 453 and California Rules of Court Rules 3.113 and 3.1306(0) Plaintiffs hereby request that the Court take judicial notice of the following: 1. May 21, 2021 Order Granting Motion t0 Dismiss, in Mehmnfar Investment Group v. June Lu, et al, Santa Clara County Superior Court Case N0. 21CV377609. A true and correct copy is attached hereto as Exhibit 8. /// /// PLAINTIFFS’ KAM HONG LUI, JUN LU, AND STANFORD EDUCATION FOUNDATION GROUP, LLC’S SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THEIR OPPOSITION TO DEFENDANT MEHRANFAR INVESTMENT GROUP’S ANTI-SLAPP MOTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNERLAW GROUP, PC 800 S. Broadway, Suite 200 Walnut Creek, California 94596 Judicial notice is proper pursuant t0 California Evidence Code §452(d) as a record 0f the courts of this State. HORNER LAW GROUP, PC Clifford R. Homer, Esq. Brendan . Dooley Esq. Attorneys for Plaintiffs Kam Hong Lui, Jun Lu and Stanford Education Foundation Group, LLC Date: May 24, 2021 PLAINTIFFS’ KAM HONG LUI, JUN LU, AND STANFORD EDUCATION FOUNDATION GROUP, LLC’S SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THEIR OPPOSITION TO DEFENDANT MEHRANFAR INVESTMENT GROUP’S ANTI-SLAPP MOTION SUPPLEMENTAL RJN - EXHIBIT 8 lO ll 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPERIOR COURT OF THE STATE OF CALIFORNI ‘ COUNTY OF SANTA CLARA CASE No: 21cv377609 MEHRANFAR INVESTMENT GROUP, . . f DECISION AND ORDER RE: P‘amtlf ’ DEFENDANT’S MOTION T0 QUASH SERVICE OF SUMMONS vs. JUNE LU, an individual, STANFORD EDUCATION FOUNDATION GROUP, LLC dba PALO ALTO BILINGUAL MONTESSORI ACADEMY, a California limited liability company, Defendants. This matter came 0n regularly for hearing 0n April 22, 2021 in Depanment 4. At the hearing, counsel for both plaintiff and defendants made arguments and the matter was taken under submission. Having considered the moving papers, opposition and reply papers and arguments of counsel and the file herein, and for the reasons noted below, the motion to quash service 0f summons is GRANTED. I. PROCEDURAL BACKGROUND This is the second unlawful detainer action filed by Mehranfar Investment Group (“Plaintiff”) and against June Lu and Stanford Education Foundation Group, LLC (collectively “Defendants”) related to the propeny located at 4232 El Camino Real, Palo Alto, California 94306. Previously, plaintifffiled under case number 20CV370534, seeking t0 evict Defendants from the propefly for illegally possessing the premises as “squatters.“ Defendant filed a motion 1 Case Number 20CV370534, Mehranfar v. June Lu, et. al., attachment to Complaint, DECISION RE: MOTION TO QUASH 10 11 12 13 l4 15 16 ‘17 18 19 2O 21 22 23 24 25 26 27 28 t0 quash and to dismiss under California Code of Civil Procedure (CCP) § 418. 1 0. The court granted the motion to quash, finding that defendants were in fact tenants, subject t0 the protections 0fthe Santa Clara County Moratorium? Plaintiff now brings this second unlawful detainer action, alleging a periodic tenancy between the parties, seeking to evict defendants upon the expiration ofa proper 30-day notice to vacate. Unlike the first unlawful detainer action, Plaintiff caused to be served a 30-day notice, demanding Defendants vacate the property pursuant to Civil Code § 1946. A complaint in this matter was filed 0n March 5, 2021 and served on defendants March 18, 2021. On April 9, 2021, Defendants filed a motion to quash service of the summons and complaint pursuant to CCP § 418.10, claiming the protections 0fthe Santa Clara County Emergency Ordinance No. NS-9.287 as amended. An opposition was filed on April 21, 2021, followed by Defendant’s reply on April 22, 2021. The matter was heard 0n April 22, 2021 in Department 4 and subsequently taken under submission for written decision. The court has considered the moving papers, declarations and argument Of counsel and for the reasons stated herein, the court GRANTS defendant’s motion t0 quash service of summons. II. LEGAL STANDARD Within the statutory pleading deadline, a defendant may file a motion t0 quash service of summons. CCP §§ 1167.4, 418.10. A motion to quash service is the proper method for determining whether the court has acquired personal jurisdiction over the defendant through service of the five-day unlawful detainer summons. Delta Imports, Inc. v. Municipal Court (1983) 146 Cal.App.3d 1033, 1034. Ifthe underlying complaint fails to state a cause ofaction for unlawful detainer, then use 0fthe five-day summons is improper and the defendant is entitled to an order quashing service as a matter 0f law. Greene v. Municipal Court (1 975) 51 Cal.App.3d 446, 45 1-4152. 3 Case Number 20CV370534, Order Granting Defendants’ Motion to Quash dated December 15, 2020 DECISION RE: MOTION TO QUASH 10 ll 13 l4 15 16 17 18 l9 20 21 22 24 25 26 27 28 III.LEGAL ANALYSIS Any defect, either procedural 0r substantive, that challenges the court’s authority t0 exercise personal jurisdiction over a defendant pursuant to the five-day unlawful detainer summons can be raised by a motion to quash. Greener v. Workers" Comp. Appeals Bd. (1 993) 6 Cal. 4‘“ 1028, 1036. Because a motion to quash challenges service ofsummons for lack of personal jurisdiction, “thejurisdictional facts must be proved by competent evidence at the hearing on the motion; this generally requires affidavits or declarations by competent witnesses, and a properly verified complaint may be treated as a declaration for this purpose.” Parsons v. Superior Court (2007) 149 Ca.App.4th Supp. 1, 7. Defendants have filed a motion t0 quash alleging that the issues presented in this unlawful detainer action have been addressed and adjudicated previously. Thus the question presented is whether the instant action presents any new facts and/ 0r circumstances that might defeat a second motion to quash. The court concludes that there are new and different facts alleged in this second action not previously alleged 0r adjudicated in the preceding matter. However, for the reasons set forth below and despite the new allegation, the court finds that the 30-day notice violated the County Ordinance N0. NS 9-287, as amended. a. Case Number 20CV370534 (First Unlawful Detainer) In the first unlawful detainer action (20CV370534) Defendants argued that they had operated a Montessori school on the subject property for more than ten (1 0) years, having been paying rent during that period and further invested over one-million dollars in improvements to the property with the landlord’s consent. Defendants further argued that although Plaintiff/landlord entered into a ten-year lease with Alliance One, which provided for a five-year renewal, Alliance One sublet the propefly t0 Defendants with the plaintiff‘s knowledge and consent.3 It is important to note that Plaintiffs did not cause to be served any notice of termination 0fthe tenancy. Plaintiff took the position that no tenancy existed, that Defendants were mere squatters and sought t0 evict them 0n that basis. Simply put, Plaintiffs represented that the Defendants were not tenants and not paying rent. Defendants took the position that they 3 Id. b.) DECISION RE: MOTION TO QUASH lO ll 12 l3 14 15 16 l7 18 19 20 21 22 23 24 25 26 27 28 were in fact tenants and could not pay rent due t0 the hardships caused by the COVID-19 pandemic. The court concluded that a tenancy existed between the pafiies and that the Defendants were afforded protections under the local moratorium. The court rejected the notion that Plaintiffs were unaware that June Lu and Stanford Education Foundation Group were operating a Montessory School on the premises for the previous 10 years, having invested $ 1 million in improvements t0 the property. Further, Defendants provided cancelled checks in suppon 0f their contention that Plaintiff accepted rent from them. The count granted the motion t0 quash in its order 0f December 15, 2020 and the matter was subsequently dismissed. b. Case Number 21CV377609 (Second Unlawful Detainer) In this second unlawful detainer action, Plaintiff seeks t0 evict Defendants based on a presumed periodic tenancy (Le. month-to-month), after the expiration ofa 30-day notice served on December 24, 2020. Plaintiff contends that under a periodic tenancy, it could terminate that tenancy without “just cause” upon a minimum 0f30 days-notice. Plaintiff relies on Civil Code §1946 and further states that the reason for the termination was defendant’s failure to act in good faith in negotiating a new, long-term lease. Plaintiff stresses that it is seeking alternative renters who will negotiate a long-term lease and that failure to pay rent is not a basis for the eviction. 1n contrast, Defendants bring this motion to quash, arguing that the Complaint essentially makes identical allegations as those contained in the previous action, which have now been adjudicated. Defendants rely on Santa Clara County Emergency Ordinance N0. NS-9.287 as amended. Defendants also rely on this coum’s previous order of December 15, 2020, granting the motion t0 quash in case number 20CV370534. In the alternative, Defendants stake out the following position: “lTlhe Eviction Moratorium bans any and all termination ofa protected tenancy - except for “j ust cause” ~- and this Court has already adjudicated that Defendants are a protected tenant, and the 30-Day Notice t0 Terminate does not fall into any “just cause” basis under the still-in-effect Eviction Moratorium. (MPA in Supp. of Motion t0 Quash, p.2). (Emphasis in the original.) Defendants claim that they are “protected tenants” under the moratorium and cannot be evicted, except for DECISION RE: MOTION TO QUASH 10 ll l3 14 15 l6 l7 18 19 20 21 22 23 24 25 26 27 28 just cause. Further, Defendants contend that the 30~day notice fails t0 state any “just-cause,” thus protecting them from eviction. c. A Periodic Tenancy Exists between the Parties Plaintiff originally signed a ten year lease with Alliance One, with a right t0 renew for another five years. In its order granting the motion to quash in the first unlawful detainer matter, the court concluded that Alliance One sublet the propefly to Defendants with the Plaintiff’s knowledge and consent. The five year renewal was not exercised. The court found that a tenancy existed between the parties, but, as Plaintiff suggests, did not define the nature 0fthe tenancy. Defendants admit that they are tenants, but do not offer what category 0f tenancy. Thus there is an ambiguity as to the nature 0f the relationship between landlord and tenant. Where fixed terms are not ascertainable from a lease agreement, it is presumed that the tenancy is month-tO-month. California Civil Code §1943. Specifically: “A hiring 0f real property, other than lodgings and dwelling-houses, in places where there is no custom 0r usage on the subject, is presumed to be a month t0 month tenancy unless otherwise designated in writing. . .” In other words, in the absence 0f any terms fixing the term 0f the tenancy, and absent evidence to the contrary, the default term is presumed month-to-month. In the case at bar, the ten year lease expired and absent any evidence t0 the contrary, the court presumes the tenancy is periodic or month t0 month. Defendant make n0 claims that a different relationship exists and offers no evidence to suggest some other form 0f tenancy. As a result the court concludes that a month-to-month tenancy exists. d. Santa Clara County Ordinance No. NS-9.287 Defendants claim the protections of the local county moratorium, as they did in the first unlawful detainer action. Defendants stress that small commercial business tenants cannot be evicted for non-payment of rent and are only subject t0 unlawful detainer for “just cause.” Terminating the lease t0 “explore renting the Premises t0 others,” (as stated in the 30-day notice) is not an enumerated “just cause,” and is an impermissible eviction under the local moratorium. The relevant part 0f the Santa Clara Ordinance reads as follows: The Owner of. . .Commercial Real Property shall not terminate a tenancy for any no-fault cause for eviction, as those causes are defined in Civil Code Section DECISION RE: MOTION TO QUASH 10 11 12 l3 l4 15 l6 l7 18 l9 20 21 23 24 25 26 27 28 1946.2(b)(2), ifthe tenant demonstrates that the Tenant has suffered substantial loss of income 0r substantial out of pocket medical expenses associated with the 2020 Covid-l 9 Pandemic... SCC Ordinance N0. NS-9.287 (3)(b). It is apparent from the language ofthe Ordinance that commercial small business tenants cannot be evicted for “no faultjust cause” eviction ifthe tenant has suffered financial distress due t0 the C0vid-19 pandemic. (SCC Ordinance N0. NS-9.287, Sec 3(b)). No faultjust cause is enumerated in Civil Code § 1946.2(b)(2) as follows: (A)(i) Intent t0 occupy the residential real property by the owner 0r their spouse, domestic partner, children, grandchildren, parents, or grandparents. .. (B) Withdrawal 0fthe residential real property from the rental market. (C) (i) The owner complying with any 0fthe following: (I) An order issued by a government agency or court relating to habitability that necessitates vacating the residential real property. (II) An order issued by a government agency 01' court to vacate the residential real property. (III) A local ordinance that necessitates vacating the residential real property. In sum, the Ordinance bans evictions on small businesses that have suffered financial hardship due t0 Covid-l 9 and where the eviction is premised on a failure t0 pay rent or for a no-faultjust cause reason. The court agrees with Defendants that the local moratorile bans evictions on small businesses where the basis for the eviction is either non-payment 0f rent 0r a no-faultjust cause, as defined in Civil Code § 1946.2. The court also agrees that the notice t0 quit does not state any at-faultjust cause basis for the eviction. Lastly, the court agrees that Defendants are “protected” tenants under the county moratorium. The question is whether they can exercise those protections in the context of this second unlawful detainer action. e. Civil Code Sections 1946 and 1946.2 1n its opposition, Plaintiff does not deny that defendants are “tenants.” (Opp. P. 8.) Rather Plaintiff takes the position that under this second unlawful detainer, defendants cannot seek the protections ofthe moratorium because the eviction is supported by a 30-day notice under Civil DECISION RE: MOTION TO QUASH 10 ll 12 l3 l4 15 l6 17 18 19 23 24 25 26 27 28 Code § 1946. The reason for the eviction, as stated in the notice, was t0 find a “tenant willing to agree to reasonable lease terms.” (Opp, p 7.) Thus the motivation behind the eviction was not based 0n a failure t0 pay rent nor was it based on any “no-fault” cause enumerated in Civil Code § 1946.2. Rather, plaintiff relies 0n section 1946, which permits a termination ofa month-to- month tenancy upon giving a minimum 30-day notice. Civil Code § 1946, referenced in CCP § 1161(1) specifically permits the termination ofa month-tO-month tenancy upon a 30-day notice: A hiring 0f real property, for a term not specified by the parties, is deemed to be renewed as stated in Section 1945, at the end of the term implied by law unless one ofthe parties gives written notice to the other 0f his or her intention to terminate the same, at least as long before the expiration thereof as the term 0fthe hiring itself, not exceeding 30 days; provided, however, that as t0 tenancies from month to month either ofthe parties may terminate the same by giving at least 30 days” written notice thereof at any time and the rent shall be due and payable t0 and including the date oftermination. Thus, Code ofCivil Procedure (CCP) § 1161(1), by reference t0 Civil Code § I946, authorizes termination ofa non-fixed term tenancy pursuant t0 service ofa 30-day written notice. Further, notice ofa termination ofa non-fixed term tenancy generally need not state a reason for serving the notice. People ex. rel. Dept ofTranSp. v. Lucero (1980) 114 Cal.App.3d. 166, 174- 176. In other words, just cause is not required to evict a tenant, where the tenancy is premised on periodic basis, such as month-to-month. However, that is not the end 0fthe analysis. Civil Code § 1946.2 does in fact limit any termination ofa tenancy to only “just cause” and provides: “notwithstanding any other law, after a tenant has continuously and lawfully occupied a residential real property for 12 months, the owner of the residential real property shall not terminate the tenancy withoutjust cause, which shall be stated in the written notice t0 terminate tenancy.” Although thejust cause provision in section 1946.2 is limited to residential tenancies, the County Moratorium temporarily extends the prohibition to commercial properties and t0 those tenants that are “protected.” (SCC Ord. No. N2-9.287 Sec. 303).) DECISION RE: MOTION TO QUASH I\) lO 11 12 13 14 15 16 l7 18 l9 20 21 22 24 25 26 27 28 In other words, the county moratorium temporarily extends the provisions ofCivil Code §1946.2 to commercial tenants that have been demonstrably impacted by the on-going C0vid-19 pandemic. Even where failure to pay rent is not at issue, ifthe ténant is “protected,” a notice of termination oftenancy must state “just-cause” as a basis for termination. AS noted above, no- faultjust-cause is enumerated in Civil Code § 1946.2(b)(2) and specifically referenced in the County Ordinance. In the case at bar, the coufl concludes that there exists a month-to-month tenancy between the parties. The court again concludes that the defendants are protected parties under the county moratorium. The County Moratorium precludes an eviction without giving notice and stating a “just-cause” basis for the termination. The 30-day notice did not state an enumerated no-faultjust cause reason and therefore the notice was in violation ofthe local moratorium. IV. CONCLUSION After a review ofthe court file, record, pleadings and declarations submitted and for the above noted reasons, the motion t0 quash is GRANTED. IT IS SO ORDERED. V ERIK‘E‘”. JOHNSON SUPERIOR COURT COMMISSIONER DATED: May 18, 2021 DECISION RE: MOTION TO QUASH SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NORTH FIRST STREET SAN JOSE, CALIFORMA 951 13 CIVIL DIVISION Clifford Rex Homer 800 S Broadway Ste 200 Walnut Creek CA 94596 RE: MEHRANFAR INVESTMENT GROUP vs JUNE LU et al Case Number: 21CV377609 PROOF OF SERVICE DECISION AND ORDER RE: DEFENDANT'S MOTION TO QUASH SERVICE OF SUMMONS 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 Voicefl’DD California Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MAIL: l declare that | 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 May 21, 2021. CLERK OF THE COURT, by Stacie Marshall, Deputy. cc: Austin T Jackson Structure Law Group LLP 1754 Technology Drive Suite 135 San Jose CA 951 1O CW-9027 REV 12/08/16 PROOF 0F SERVICE PROOF OF SERVICE Case Name: Kam Hong Lui, Jun Lu, and Stanford Education Foundation Group, 2 LLC v. Zhen Zhen Li, et a1. 3 Case No.: Santa Clara County Superior Court Action N0. 20CV373964 I, Sharon Piserchio, declare that I am over the age 0f eighteen years and not a party t0 this 4 action or proceeding. My business address is 800 S. Broadway, Suite 200, Walnut Creek, California 94596-3759. On the date set forth below, I caused the following document(s) to be 5 served: 6 On May 24, 2021 I caused to be served the within: 7 PLAINTIFFS’ KAM HONG LUI, JUN LU, AND STANFORD EDUCATION 8 FOUNDATION GROUP, LLC’S SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THEIR OPPOSITION TO DEFENDANT MEHRANFAR 9 INVESTMENT GROUP’S ANTI-SLAPP MOTION 10 on the party(ies) listed below, addressed as follows: 11 Mark R. Figueiredo, Esq. Jeffrey A. Chen, Esq. Austin T. Jackson, Esq. Law Offices 0f Jeffrey A. Chen 12 Structure Law Group, LLP 2010 Crow Canyon Place, Suite 100 1754 Technology Drive, Suite 135 San Ramon, CA 94583 13 San Jose, CA 95110 ieffchenlaw®gmaiLcom mrf@structurelaw.com 14 aiackson@structurelaw.c0m Attorney for Defendants Zhen Zhen Li, Keen Wei and Alliance One 15 Attorney for Mehranfar Investment Group Investment, LLC 16 17 BV Electronic Service IC.C.P. 1010.6]. By causing a true copy thereof to be 18 transmitted by electronic transmission to the attorneys shown below in accordance With C.C.P. 1010.6 and the local rules 0fthe court. 19 Executed this 24th day of May, 2021. 20 B: 21 Yigm QsmmL- 22 Sharon Piserchio 23 24 25 26 27 28 HORNER LAW GROUP, PC 800 S. Bmadway. Suite 200 Walnut Creek, California 94596 _ 1 _ PROOF OF SERVICE