Opposition ObjectionsCal. Super. - 6th Dist.April 1, 2021KOOOQONU‘I-bUJNr-A Hr-AHr-‘r-A LWNP-‘O H O\ CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 [\J [\J [\J [\J [\J [\J [\J [\J H >-‘ H >- fl O\ U} -h U.) [\J >- O KO 00 fl U] [\J 00 21 CV378983 Santa Clara - Civil R. Ng Ashley N. Meyers: SBN 274072 Elegtron'FaHé Fllretd f CAameyers@clappmoroney.com y "per'or O" ° ’ Rebecca R. Spodick: SBN 335397 county 0f santa Clara! rspodick@clappm0r0ney.com 0n 10/7/2021 3117 PM CLAPP, MORONEY, VUCINICH, Reviewed By: R. Nguyen ?&?gANJrSgHELEYt 410 Case #21 CV378983 wens rlve, u1 e . Pleasanton, California 94588 EnveIOpe' 7424004 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 No.: 21CV378983 Plaintiff, DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO SET V. ASIDE ORDER DATED AUGUST 18, 2021 HOMEFIRST; Chief Executive Officer ANDREA URTON; Director BEATRICE Date: October 21, 2021 RAMOS; JANELY VELEZ; SANI MOHA; Time: 9:00 a.m. individually and officially, Dept: 7 Defendants. Trial Date: None set Defendants HOMEFIRST SERVICES OF SANTA CLARA COUNTY, ANDREA URTON, BEATRIZ RAMOS, JANELLY VELEZ, and YANIMOHA hereby submits its opposition t0 Plaintiff EDWARD CHARLES JENKINS’ Motion t0 Set Aside the Order dated August 18, 2021. As a preliminary matter, Defendants are not aware of an order with this Court dated August 18, 2021 but are aware ofthe minute order dated August 17, 2021 and the Order After Hearing signed August 25, 202 1. Defendants proceed With this opposition under the assumption that the Order referred t0 by Plaintiff is t0 the Order After Hearing: Demurrer t0 Complaint wherein the demurrer is sustained without leave to amend and Plaintiff’s Complaint is dismissed with prejudice (Declaration 0fAshley N. Meyers (“Meyers Decl.”), Exhibit H). /// 1 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO SET ASIDE ORDER DATED AUGUST 18, 2021 uyen CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 H Um KOOOQONU‘I-bUJNr-A Hr-AHr-‘r-A LWNP-‘O NNNNNNNNNHr-‘HH mumm-hwwr-‘Okoooua I. The Filing 0f the Demurrer Was Both Timely And Proper A party Who has been served With a complaint or a cross-complaint may file either a demurrer or an answer in response t0 the complaint. CCP §430.10. The Code 0f Civil Procedure §430.40(a) states that a person served with a complaint has 30 days following the service of the complaint to file a demurrer. On April 1, 2021, Plaintiff filed this action against Defendants HomeFirst Services 0f Santa Clara County (erroneously sued as HomeFirst), Andrea Urton, Beatiz Ramos, Janely Velez, and Sani Moha (“Meyers Decl.”) V3). On April 6, 2021, Plaintiff served Defendant HomeFirst with a copy of the complaint and summons (Meyers Decl. V3, Exhibit A). On Defendants HomeFirst Services of Santa Clara County (erroneously sued as HomeFirst), Andrea Urton, Beatiz Ramos, Janely Velez, and Sani Moha filed a demurrer t0 the complaint 0n May 3, 2021 (Meyers Decl. VS). Based on the proof 0f service, 30 days following the service requires the responsive pleading to be filed by May 5, 2021. As stated prior, the pleading was properly filed 0n May 3 prior t0 the deadline. General Rule 6 of the Superior Court 0f California, County 0f Santa Clara requires that all parties represented by attorneys in civil cases file documents electronically. The rule additionally states that self-represented parties are not required t0 electronically file documents. In accordance with this rule, Defendants properly electronically filed the demurrer 0n May 3, 2021. Thus, the filing 0f the demurrer was both timely and proper. Furthermore, Plaintiff” s request for an Entry of Default based 0n failure t0 properly file a responsive pleading t0 the complaint was not proper. II. Service 0f the Demurrer on PlaintiffWas Proper As required by the Code of Civil Procedure §430.41, Defendants contacted Plaintiff to discuss the filing 0f the demurrer 0n April 16, 20 and 23, 2021 (Meyers Decl. V4). Defense counsel inquired into Plaintiff s present location for service of documents due t0 his eviction from the residence listed in the complaint. Plaintiff provided Defense counsel with the address 0f the shelter where he was staying at the time. On May 5, 2021, Defendants served Plaintiff with the demurrer papers by substituted service t0 the Front Desk Clerk Louis “Doe” at the HomeFirst Shelter, South Hall Building 2 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO SET ASIDE ORDER DATED AUGUST 18, 2021 CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 H Um KOOOQONU‘I-bUJNr-A Hr-AHr-‘r-A LWNP-‘O NNNNNNNNNHr-‘HH mumm-hwwr-‘Okoooua at 2011 Little Orchard Street, San Jose, CA 951 10 (Meyers Decl. V6). Given the COVID-19 related delays at the Santa Clara Superior Court, the documents were served Without a hearing date. On June 24, 2021, Defendant Homefirst Services of Santa Clara County provided Defense Counsel with an email address that Plaintiff was using t0 communicate with their office. Defense Counsel emailed the address providing curtesy copies 0f all documents served (Meyers Decl. R9, Exhibit B). Then on June 26, 2021, Carlos Salazar was able to serve Plaintiff in person at a Shelter 0n 435 S. Market St. San Jose, CA 951 13, including the re-notice with the hearing date (Meyers Decl. [#10, Exhibit C). Defendants filed the proof of service With the Court, confirming that Plaintiff was formally served with the demurrer. Plaintiff alleges that the clerk’s office prevented him from filing an opposition on May 14, 2021 because n0 hearing date had been set. Defendants are not aware of any circumstances regarding the clerk’s denial of the opposition but, Plaintiff had notice of the demurrer papers at the latest by June 26, 2021. At this time, Plaintiff could have filed his opposition with the court, but he did not. Until the filing 0f Plaintiff’ s motion t0 set aside, Defendants were never served with Plaintiff’s opposition t0 the demurrer (Meyers Decl. [r 15). Furthermore, Defendants provided an electronic copy of all moving papers to Plaintiff Via email. Additionally, Defense counsel spoke frequently With Plaintiff regarding the difficulties in service and discussed many methods 0f service including email, mail to a physical address, 0r service at a permanent address. It was not until August 13, 2021 that Defendants were able t0 locate a permanent mailing address (Meyers Decl. RIO). Additionally, on August 16, 2021, Plaintiff confirmed his email address and requested that Defendants send the tentative ruling Via email (Meyers Decl. 12). Defendants made every possible attempt t0 serve Plaintiff With the demurrer papers and were successful in service at the latest on June 26, 2021. Despite the potential delay in service, all documents were still served within the time allotted prior to the hearing and provided Plaintiff with ample time to file an opposition. /// /// 3 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO SET ASIDE ORDER DATED AUGUST 18, 2021 CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 H Um KOOOQONU‘I-bUJNr-A Hr-AHr-‘r-A LWNP-‘O NNNNNNNNNHr-‘HH mumm-hwwr-‘Okoooua III. The Court Properly Granted the Demurrer Without Leave t0 Amend According t0 California Rules of Court 3.1320(d), “[d]emurrers must be set for hearing not more than 35 days following the filing of the demurrer or 0n the first date available t0 the court thereafter. For good cause shown, the court may order the hearing held on an earlier 0r later day on notice prescribed by the court.” It is Defense Counsel’s understanding that the COVID-19 pandemic has caused significant delays with the clerk’s office at the Santa Clara County Court. These delays have resulted in most hearings being set 4-6 months following the filings. Based on these delays, the clerk’s office did not assign a hearing date until approximately June 16, 2021 (Meyers Decl. [r 8). The date provided by the clerk’s office for the hearing was August 17, 2021 (Meyers Decl. V8). Although this delay caused the demurrer hearing t0 be set for more than 35 days following the filing, it was set 0n the first available date thereafter by the court. Thus, the setting of the hearing date for the demurrer was proper and timely. The Court properly granted Defendants” demurrer Without leave t0 amend. As stated in the court’s tentative ruling, “a failure t0 oppose a motion and a failure t0 show that there is a reasonable possibility the defect can be cured to state a case of action, may be deemed a consent to the granting 0f the motion (CRC 85(0)). Additionally, California Rules 0f Court expressly states that: When a demurrer is regularly called for hearing and one 0f the parties does not appear, the demurrer must be disposed of 0n the merits at the request of the party appearing unless for good cause the hearing is continued. Failure t0 appear in support 0f a special demurrer may be construed by the court as an admission that the demurrer is not meritorious and as a waiver of all grounds thereof. If neither party appears, the demurrer may be disposed of on its merits or dropped from the calendar, t0 be restored 0n notice 0r 0n terms as the court may deem proper, or the hearing may be continued t0 such time as the court orders. CRC 3.1320(f) Here, Plaintiff failed to timely appear for the demurrer hearing. Defense Counsel notified Plaintiff of their intent t0 appear to clarify the order and Plaintiff confirmed that he would attend the hearing. Plaintiff failed to inform the court 0f his dispute 0f the tentative ruling and intention t0 appear for oral argument. When the case was called at 9:00am, Plaintiff was not present in the courtroom or 0n Courtcall; Defense counsel appeared Via Courtcall. These failures to oppose the 4 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO SET ASIDE ORDER DATED AUGUST 18, 2021 CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 H Um KOOOQONU‘I-bUJNr-A Hr-AHr-‘r-A LWNP-‘O NNNNNNNNNHr-‘HH mumm-hwwr-‘Okoooua demurrer constitute an assent to the granting of the motion. Having n0 opposition filed and no appearance by Plaintiff, the Court properly granted the demurrer Without leave t0 amend. Even if Plaintiff had properly filed his opposition or appeared in Court, this court was still within its discretion to grant the demurrer without leave t0 amend. Plaintiff’s complaint was uncertain, ambiguous, and unintelligible in Violation 0f Code 0f Civil Procedure §430.10(f) and failed t0 properly state a cause 0f action in Violation of Code 0f Civil Procedure §430.10(e). Furthermore, denial of leave to amend is appropriate only when it conclusively appears that there is no possibility 0f alleging facts under Which recovery can be obtained (Cabral v. Scares (2007) 157Cal. App. 4th 1234, 1240). Here, there was n0 possibility ofrecovery by the facts provided. Thus, the granting of the demurrer without leave t0 amend was appropriate. IV. Conclusion In conclusion, Defendants properly filed its demurrer electronically and Within the time allotted by code. Furthermore, Defendants properly served Plaintiff with its demurrer papers and provided notice of the hearing date assigned by the court. Finally, this Court properly granted Defendants’ demurrer Without leave t0 amend thereby dismissing the case. Accordingly, Plaintiff s motion to Set Aside the Order dated August 18, 2021 should not be granted. Dated: October 7, 2021 CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY WW" BV: 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 5 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO SET ASIDE ORDER DATED AUGUST 18, 2021 CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 KOOOQONU‘I-bUJNr-A PLEASANTON, CALIFORNIA 94588 [\J [\J [\.) N [\J [\J N [\J N H >-¢ H H r-d H r-A r-d H r-A 00 fl O\ Ul -b U.) [\J >-‘ O \o oo fl O\ U] L DJ [\J r-‘ O 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: D By Personal Service 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 of Alameda, State 0f CALIFORNIA. I am over the age of 18 years and not a party t0 the within action. E" 3. On the My place 0f employment is 5860 Owens Drive, Suite 410, Pleasanton, California 94588. date set forth below, I caused to be served a true and correct copy of the document described as: DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO SET ASIDE ORDER DATED AUGUST 18, 2021 I served the documents on the persons below, as follows: In Pro Per P.O. Box 164 San Jose, CA Edward Charles Jenkins Phone: (408) 401-8347 Email: edwardienkins964@2mail.com 95103 4. The document(s) was served by the following means (specify): a. D BY PERSONAL SERVICE. I caused to 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 or at the attorney's office by leaving the documents in an envelope or package clearly labeled t0 identify the attorney being served With a receptionist or an individual in charge of 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 of age between the hours 0f eight in the morning and six in the evening. BY UNITED STATES MAIL. I enclosed the documents in a sealed envelope or 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) 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 correspondence is placed for collection and mailing, it is deposited in the 6 DEFENDANT ’ S OPPOSITION TO PLAINTIFF’S MOTION TO SET ASIDE ORDER DATED AUGUST 18, 2021 \OOONQUILUJNr-a CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE SUITE 410 PLEASANTON, CALIFORNIA 94588 N [\J N [\J [\J N [\J [\J N r-A >-¢ >-A r-A >-A >-A r-A H >-A r-A 00 q O\ Ul A U3 N >-* O \D 00 N ON Um A UJ [\J >-‘ O D ordinary course of business with the United States Postal Service, in a sealed envelope With postage fully prepaid. D 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) 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 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 for said certified mail/return receipt number (See attached copies of Certified MaiI/Return Receipts Requested.) I am a resident 0r employed in the County where the mailing occurred. The envelope or package was placed in the mail at Pleasanton, California, County of Alameda. d. 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 0r 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 t0 the persons at the addresses listed in item 4 and providing them t0 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 t0 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 0f the above-entitled document(s) t0 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 t0 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. (State) I declare under penalty 0fpteury under the laws ofthe State of California that the foregoing is true and correct. (Federal) declare that I am employed in the offices 0f a member 0f the bar 0f this court at Whose direction this service was made. I declare under penalty of perjury that the foregoing is true and correct. Executed on October 7, 2021 at Pleasanton, California. oel A. Morales f/V'wMyEfi/Lfi N , 7 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO SET ASIDE ORDER DATED AUGUST 18, 2021