Memorandum Points and Authorities

Cal. Super. - 6th Dist.April 1, 2021

CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 KOOOQQUI-PUJNr-t NNNNNNNNNHHHHHHHHHH OOQQM-PWNHOKOOOQQM-PWNHO 21 CV378983 Santa Clara - Civil Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/1 3/2021 9:45 AM Reviewed By: M. Sorum Case #21 CV378983 Envelope: 6833353 Ashley N. Meyers: SBN 274072 Rebecca R. Spodick SBN 335397 CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 Owens Drive, Suite 410 Pleasanton, California 94588 Telephone: (925) 734-0990 Facsimile: (925) 734-0888 Attorney for Defendants HOMEFIRST SERVICES OF SANTA CLARA COUNTY (erroneously sued herein as HomeFirst), ANDREA URTON, BEATRIZ RAMOS (erroneously sued herein as Beatric Ramos), JANELY VELEZ and SANI MOHA SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA EDWARD CHARLES JENKINS, Case N0.: 21CV378983 MEMORANDUM OF POINTS AND Plaintiff, AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT V. AND REQUIRE PLAINTIFF TO FURNISH SECURITY PURSUANT TO CCP SECTION 391.1 HOMEFIRST; Chief Executive Officer ANDREA URTON; DIRECTOR BEATRICE Date: RAMOS; JANELY VELEZ; SANI MOHA; Time: 9:00 a.m. individually and officially, Dept: 7 Trial Date: None set Defendants. I. INTRODUCTION On April 1, 2021 Plaintiff Edward Charles Jenkins (“Plaintiff”) named HomeFirst; Andrea Urton, Chief Operating Officer; Beatriz Ramos, Director; Janelly Velez, employee 0fHomeFirst; and Yani Mohah, former employee 0f HomeFirst Services 0f Santa Clara County (“HomeFirst”) as Defendants. Plaintiff alleges causes 0f action for (1) Intentional Tort, (2) Denial of Fair Housing Rights, (3) Denial 0f State and Federal Rights t0 Due Process, (4) Unfair Business Practices, and (5) Unlawful Retaliation. /// 1 MEMORANDUM OF POINTS AND AUTHORITIES Drum CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 KOOOQQUI-PUJNr-t NNNNNNNNNHHHHHHHHHH OOQQM-PWNHOKOOOQQM-PWNHO Plaintiff alleges he entered into a rapid re-housing program with HomeFirst t0 rent the property 460 S. Buena Vista Ave. Apt. 6 from Steven Lawlor 0f Goker Properties (“Landlord”). Steven Lawlor and Goker Properties are not parties t0 this suit. Plaintiff alleges that HomeFirst and the Landlord, entered into a contract for the rental 0f the property where HomeFirst was t0 pay a portion 0f Plaintiffs rent from July 3, 2020 t0 April 0f 2021. Plaintiff alleges that HomeFirst notified Landlord that Plaintiff had been removed from the subsidy program and would not be making scheduled payments after November 30, 2020. Plaintiff alleges this cancellation was made without notice t0 Plaintiff. After the rental payments from HomeFirst ceased, the Landlord initiated an unlawful detainer action against Plaintiff resulting in his eviction from the premises. Plaintiffs case rests 0n the argument that his alleged removal from Defendants’ subsidy program is actionable in some way, however, the causes 0f action identified are confusing and appear unrelated t0 the factual allegations. He has not made a breach 0f contract argument and fails t0 plead that any contract 0r agreement existed between himself and HomeFirst. The source 0f his alleged right t0 financial assistance from HomeFirst is unclear from the pleading. Additionally, he names numerous employees 0f the non-profit but failed t0 explain his basis for attempting t0 pierce the corporate veil in this manner. Upon Defendants’ retention 0f counsel, it was discovered that Plaintiff has a significant history of filing suits which are dismissed for his failure t0 prosecute and failure t0 appear. Counsel reviewed the public records regarding these cases and discovered that Plaintiff meets the statutory requirement t0 be declared a vexatious litigant at the time he filed the present action. Thus, Defendants request that this court declare Plaintiff a vexatious litigant and require Plaintiff to furnish security pursuant t0 CCP §391 . 1. II. ARGUMENT A. Defendants Request the Court Take Judicial Notice 0f Records 0f This Court According t0 CA EVid. Code §452(d) the Court may take judicial notice 0f “[r]ecords 0f (1) any court 0f this state 0r (2) any court 0f record 0f the United States 0r 0f any state 0f the United States” (CA EVid. Code §452(d)). The trial court shall take judicial notice 0f a matter specified in 2 MEMORANDUM OF POINTS AND AUTHORITIES CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 KOOOQQUI-PUJNr-t NNNNNNNNNHHHHHHHHHH OOQQM-PWNHOKOOOQQM-PWNHO §452 if it is requested by a party and “furnishes the court with sufficient information t0 enable it t0 take judicial notice 0f the matter” (CA EVid Code §453(b)). Defendant’s request that this Court take judicial notice 0f the following matters filed in the Superior Court 0f California, County 0f Santa Clara: E. Jenkins v. Michael 0 ’Flannigan (2014-1-CV-27501 1); E. Jenkins v. Michelle Floyd (2014-1-CV-275009); E. Jenkins v. M Floyd (2015-1-CV-286285); Street Snacks Inc. et. al. v. James Curtis, et. a1. (16CV301 128); Edward Jenkins v. Edward Howard (1 6CV301642); and Edward Jenkins V. Leandra Jordan (20CV371068). These matters and their substance are tantamount t0 this motion and therefore, Defendants request that the Court take judicial notice 0f such matters. B. Plaintiff is a Vexatious Litigant A court may declare a person a vexatious litigant who, “[i]n the immediately preceding seven- year period has commenced, prosecuted, 0r maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely t0 the person 0r (ii) unjustifiably permitted t0 remain pending at least two years without having been brought t0 trial 0r hearing” (CCP §391(b)(1)). In the immediately preceding seven (7) years from April 2014 to present, Plaintiff Edward Charles Jenkins filed five (5) litigations which were closed and/or dismissed adversely t0 Plaintiff. On December 29, 2014 Plaintiff filed E. Jenkins v. Michael O ’Flannigan (2014-1-CV-27501 1). On January 22, 2016 the complaint was dismissed without prejudice due t0 Plaintiff’s failure t0 appear (Meyers Decl. EX. C). On December 29, 2014 Plaintiff filed E. Jenkins v. Michelle Floyd (2014-1- CV-275009). On September 14, 2015, the complaint was dismissed without prejudice following an Order t0 Show Cause Hearing (Meyers Decl. EX. D). On September 29, 2015 Plaintiff filed E. Jenkins v. M. Floyd (2015-1-CV-286285). On May 4, 2016, the complaint was dismissed without prejudice due t0 failure t0 appear at an Order t0 Show Cause Hearing (Meyers Decl. EX. E). On October 17, 2016, Plaintifffiled Street Snacks Inc. er. al. v. James Curtis, et. al. (16CV301 128). On July 15, 2019, 3 MEMORANDUM OF POINTS AND AUTHORITIES CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 KOOOQQUI-PUJNr-t NNNNNNNNNHHHHHHHHHH OOQQM-PWNHOKOOOQQM-PWNHO the complaint was dismissed without prejudice due t0 failure t0 appear and failure t0 serve (Meyers Decl. EX. F). Finally, 0n October 25, 2016, Plaintiff filed Edward Jenkins v. Edward Howard (16CV301642). The court’s minute order 0n February 21, 2017 set an Order t0 Show Cause for Failure t0 Appear. The case was subsequently closed 0n May 22, 2017 following a declaration 0f non-service (Meyers Decl. EX. G). In addition t0 the five above cases, 0n October 5, 2020, Plaintiff filed Edward Jenkins v. Leandra Jordan (20CV371068). On June 1, 2021, the Court’s minute order dismissed the case with prejudice due t0 Plaintiff’s failure t0 appear. Since that time, 0n June 3, 2021, Plaintiff Jenkins has filed a Motion t0 Set Aside Dismissal. (Meyers Decl. EX. H). These five cases, filed in the past seven years since 2014 t0 present, have all been dismissed 0r closed adversely t0 Plaintiff. Furthermore, Plaintiffhas an additional case with a possible dismissal for failure t0 appear. According t0 CCP §391(b)(1), this qualifies Plaintiff t0 be considered a vexatious litigant. Given the above, Defendants respectively request that this Court determine Plaintiff Edward Charles Jenkins a vexatious litigant. C. There Is N0 Reasonable Probability 0f Success, Thus Security Should Be Furnished “In any litigation pending in any court 0f this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiffto furnish security The motion for an order requiring the plaintiff t0 furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he 0r she will prevail in the litigation against the moving defendant” (CCP §391 . 1). 1. Plaintiff Failed t0 Adequately State A Cause 0f Action for Intentional Tort Pursuant t0 Code 0f Civil Procedure Section 430. 10, subdivision (f), a defendant may object t0 a complaint 0n the basis that the pleading is uncertain, ambiguous 0r unintelligible. Additionally, a defendant may obj ect t0 a complaint 0n the grounds that it fails t0 state facts sufficient t0 constitute a cause 0f action (CCP §430.1(e)). Here, Plaintiff alleges that Defendants committed an intentional tort but fails t0 specify which tort 0r name any facts which would support a tort. Plaintiffs allegations are not sufficient t0 4 MEMORANDUM OF POINTS AND AUTHORITIES CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 KOOOQQUI-PUJNr-t NNNNNNNNNHHHHHHHHHH OOQQM-PWNHOKOOOQQM-PWNHO constitute any tort nor are Defendants able t0 ascertain facts t0 support the unidentified tort. Thus, Plaintiff has failed t0 adequately state a cause 0f action for intentional tort. 2. Plaintiff Failed t0 Adequately State A Cause 0f Action for Alter Ego Plaintiff named numerous employees 0f Defendant HomeFirst but failed t0 state a cause 0f action 0r theory for alter ego, T0 state a cause 0f action against a particular person for liability for the acts and obligations 0f a corporation, the complaint must show first, not only that the corporation is influenced and governed by that person, but that there is a unity 0f interest and ownership so that the individuality 0r separateness 0f the person and the corporation has ceased ; and second, that the facts are such that an adherence t0 the fiction 0f the separate existence 0fthe corporation would, under the particular circumstances, sanction a fraud 0r promote injustice (Minifie v. Rowley (1 921) 187 Cal. 48 1 , 487). In the Complaint, Plaintiffnames the HomeFirst, a 501(c)(3) corporation, as well as the Chief Operating Office 0f Homefirst, Andrea Urton and the Director 0f Support Services, Beatriz Ramos. Plaintiff has not alleged any facts which demonstrate that the corporation is influenced 0r governed by either Ms. Urton 0r Ms. Ramos. Additionally, there is n0 evidence that the corporation is a mere fiction under the guidance 0f either Ms. Urton 0r Ms. Ramos. Because Plaintiff has failed t0 allege any facts which support an alter ego claim, Plaintiffhas failed t0 adequately state this cause 0f action. 3. Plaintiff Failed t0 Adequately State A Cause 0f Action for Denial 0f Fair Housing Rights In the Complaint, Plaintiff states a claim for “denial 0f Fair Housing Rights.” This statement is insufficient for Defendants t0 determine precisely what laws 0f statutes Plaintiff alleges Defendant has violated. Plaintiff alleges in his complaint that HomeFirst agreed t0 pay the entirety 0f Plaintiff’s rent for several months and subsequently decrease the amount each month until Plaintiff was t0 pay the entirety of the rent. Plaintiff alleges that Defendants informed the Landlord, without notice t0 the Plaintiff, that they would not be paying their portion 0f their rent after November 30, 2020. This action caused Plaintiff t0 be evicted from his residence. Plaintiff does not claim that there was discrimination or wrongful eviction in this action. Furthermore, factually this appears t0 be a breach 5 MEMORANDUM OF POINTS AND AUTHORITIES CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 KOOOQQUI-PUJNr-t NNNNNNNNNHHHHHHHHHH OOQQM-PWNHOKOOOQQM-PWNHO 0f contract claim but n0 contract was pleaded 0r affixed t0 the pleading. Without knowing precisely what law 0r statute Defendants have violated, Plaintiff has not sufficiently plead his complaint with regard t0 the cause 0f action for Denial 0f Fair Housing Rights. 4. Plaintiff Failed t0 Adequately State A Cause 0f Action for Due Process In the Complaint, Plaintiff states a claim for “denial 0f State and Federal Rights t0 Due Process.” This statement is insufficient for Defendants t0 determine precisely what laws 0r statutes Plaintiff alleges Defendant has violated. In general, the Fifth Amendment t0 the Constitution 0f the United States states that n0 one shall be “deprived 0f life, liberty 0r property without due process 0f law.” The Fourteenth Amendment uses the same language t0 expand the obligation t0 each individual state. However, only the actions 0f the state, not private actors, are governed by the Fifth and Fourteenth Amendments (see Marsh v. Alabama (1946) 326 U.S. 501 ; Brentwood Academy v. Tennessee Secondary School (2002) 535 U.S. 971)). Plaintiff has failed t0 allege any facts which suggest that HomeFirst 0r their CEO, Directors 0r employees are government actors and are thus bound by the Fifth and Fourteenth Amendment due process clauses. Plaintiffhas failed t0 adequately state a cause 0faction for a Violation 0fDue Process Rights. 5. Plaintiff Failed t0 Adequately State A Cause 0f Action for Unfair Business Practices California Business and Professions Code §17200 includes the following definitions of unfair competition: (1) an unlawful business act 0r practice; (2) an unfair business act 0r practice; (3) a fraudulent business act 0r practice and (4) unfair, deceptive, untrue 0r misleading advertising. Plaintiff alleges in the Complaint that he entered into a contract with Defendant HomeFirst in order t0 secure housing with Landlord. Landlord is not a party t0 this litigation. HomeFirst agreed to pay the entirety 0f Plaintiff’s rent for several months and subsequently decrease the amount each month until Plaintiffwas to pay the entirety 0f the rent. Plaintiff alleges that Defendants informed the Landlord, without notice t0 the Plaintiff, that they would not be paying their portion 0f their rent after November 30, 2020. This action caused Plaintiff t0 be evicted from his residence. /// 6 MEMORANDUM OF POINTS AND AUTHORITIES CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 KOOOQQUI-PUJNr-t NNNNNNNNNHHHHHHHHHH OOQQM-PWNHOKOOOQQM-PWNHO The Complaint fails t0 state any facts which constitute an unlawful practice, an unfair business act, a fraudulent business act, 0r deceptive 0r misleading advertising. Based 0n the complaint, Plaintiff has failed t0 adequately plead his cause 0f action for unfair business practices. Therefore, there is n0 reasonable probability 0f success for Plaintiff” s action. 6. Plaintiff Failed t0 Adequately State A Cause 0f Action for Retaliation A landlord may not retaliate against a lessee due t0 the lessee’s exercise 0f his rights under the chapter, 0r “because 0f the lessee’s complaint t0 an appropriate agency as t0 tenantability 0f a dwelling, and if the lessee 0f a dwelling is not in default as t0 the payment 0f rent, the lessor may not recover possession 0f a dwelling in any action 0r proceeding, cause the lessee t0 quit involuntarily, increase the rent, 0r decrease any services within 180 days 0f any 0f the following. . .” (CCP §1942.5(a)). CCP §1942.5 lists five instances where retaliation is prohibited under that statute: after notice 0f bed bugs, lessee has filed a written complaint regarding tenantability 0f the premises, issuance 0f citation, judicial arbitration 0r entry ofjudgment (CCP §1942.5(a)(1 -5)). Here, Plaintiff claims that Defendants’ retaliated against him for assisting a program participant t0 re-instate their benefits. These facts d0 not constitute a cause 0f action for retaliation because Plaintiff did not perform any 0f the five instances listed in the statute. Additionally, Plaintiff fails t0 provide any evidence that the termination 0f the contract was directly related t0 his assistance with the fellow program participant. Therefore, Plaintiff fails t0 properly state a claim for unlawful retaliation. III. CONCLUSION Plaintiffhas filed five (5) litigations in the past seven (7) years in which he has been in propria persona and the ruling has been adverse t0 the Plaintiff. Give this, Plaintiff fully meets the criteria for this Court t0 determine that he is a vexatious litigant according t0 CCP §391. Additionally, Plaintiff has not properly plead his claims in the Complaint and therefore there is n0 probability 0f /// /// /// /// 7 MEMORANDUM OF POINTS AND AUTHORITIES CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 KOOOQQUI-PUJNr-t NNNNNNNNNHHHHHHHHHH OOQQM-PWNHOKOOOflQm-PWNHO success. Thus, Defendants request that Plaintiffbe required t0 furnish security as required under CCP §391.1. Dated: July 13, 2021 CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 097%” Ashley N. Meyers Rebecca R. Spodick Attorney for Defendants, HOMEFIRST SERVICES OF SANTA CLARA COUNTY (erroneously sued herein as HomeFirst), ANDREA URTON, BEATRIZ RAMOS (erroneously sued herein as Beatric Ramos). JANELY VELEZ and SANI MOHA BV: 8 MEMORANDUM OF POINTS AND AUTHORITIES CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 KOOOQQUI-PUJNr-t NNNNNNNNNHHHHHHHHHH OOQQM-PWNHOKOOOQQM-PWNHO Jenkins, Edward Charles V. Homefirst, et al. Santa Clara County Superior Court Case N0. 21CV378983 PROOF OF SERVICE [Code ofCiv. Proc. §§ 1011, 1013, 1031a, 2015.5] METHOD OF SERVICE: By Personal Service D By Mail D By Overnight Delivery D By Messenger Service D By Facsimile By E-Mail/Electronic Transmission 1. I am a citizen 0f the United States and am employed in the County 0f Alameda, State 0f CALIFORNIA. I am over the age 0f 18 years and not a party t0 the within action. E9 My place 0f employment is 5860 Owens Drive, Suite 410, Pleasanton, California 94588. 3. On the date set forth below, I caused t0 be served a true and correct copy 0f the document described as: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT AND REQUIRE PLAINTIFF TO FURNISH SECURITY PURSUANT TO CCP SECTION 391.1 I served the documents 0n the persons below, as follows: In Pro Per Edward Charles Jenkins 435 S. Market St. San Jose, CA 951 13 Phone: (408) 401-8347 Email: edwardienkins964@2mail.com 4. The document(s) was served by the following means (specify): a. BY PERSONAL SERVICE. I caused t0 be personally delivered the documents t0 the persons at the addresses listed in item 4. (1) For a party represented by an attorney, delivery was made t0 the attorney 0r at the attorney's office by leaving the documents in an envelope 0r package clearly labeled t0 identify the attorney being served with a receptionist 0r an individual in charge 0f the office. (2) For a party, delivery was made t0 the party 0r by leaving the documents at the party's residence with some person not less than 18 years 0f age between the hours 0f eight in the morning and six in the evening. b. D BY UNITED STATES MAIL. I enclosed the documents in a sealed envelope 0r package addressed t0 the persons at the addresses in item 4 and (specify one): (1) D deposited the sealed envelope with the United States Postal Services, with the postage fully prepaid. (2) D placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that 9 MEMORANDUM OF POINTS AND AUTHORITIES CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE SUITE 410 PLEASANTON, CALIFORNIA 94588 \DOONO‘xUI#UJN>-t NNNNNNNNNHHHt-HHt-HHt-t OONONUIhUJNHOKDOOQONUI#WN>-‘O D I am a resident or employed in the County where the mailing occurred. The envelope 0r package was placed in the mail at Pleasanton, California, County 0fAlameda. d. (State) I declare under penalty of perjury under the laws of the State 0f California that the foregoing is true and correct. (Federal) declare that I am employed in the offices of a member 0f the bar of this court at whose direction this service was made. I declare under penalty ofperjury that the foregoing is true and correct. Executed on July 13, 2021 at Pleasanton, California. correspondence is placed for collection and mailing, it is deposited in the ordinary course of business With the United States Postal Service, in a sealed envelope With postage fully prepaid. U BY CERTIFIED MAIL/RETURN RECEIPT REQUESTED. I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses in item 4 and (specify one): (1) U placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business‘s practice for collecting and processing correspondence for mailing. On the same day that corre spondence is placed for collection and mailing, it is deposited in the ordinary course of business With the United States Postal Service, in a sealed envelope with postage fully prepaid for said certified mail/return receipt number (See attached copies 0f Certified Mail/Return Receipts Requested.) D BY OVERNIGHT DELIVERY. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses in item 4. I place the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. D BY MESSENGER SERVICE. I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed in item 4 and providing them to a professional messenger service for service. D BY FAX TRANSMISSION. Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax numbers listed in item 4. No error was reported by the fax machine that I used. BY E-MAIL OR ELECTRONIC TRANSMISSION. I caused all of the above-entitled document(s) to be sent to the recipients listed by electronic mail only based on the notice provided on March 18, 2020, that during the Coronavirus (Covid- 19) pandemic, this office will be working remotely, not able to send physical mail as usual, and is therefore using only electronic mail. No electronic message or other indication that the transmission was unsuccessful was received within a reasonable time after the transmission. Noel A. Morales 10 MEMORANDUM OF POINTS AND AUTHORITIES