Demurrer

Cal. Super. - 6th Dist.March 23, 2021

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV381036 Santa Clara - Civil Matthew D. Giampaoli, Esq. (SBN 138357) Robert L. Davis, Esq. (SBN 195363) Electronically Filed COLLINSWORTH, SPECHT, by Superlor Court of CA, CALKINS & GIAMPAOLI, LLP County of Santa Clara, 7041 K011 Center Parkway, Suite 120 on 2/9/2022 4:46 PM Pleasanton, California 94566 Reviewed By: F_ Miller Telephone: (925) 400-9575 Case #21 cv381 036 Facsimile: (925) 400-9576 Envelope_ 8257687 mgiampaoli@cslaw0ffices.com rdavis@cslaw0ffices.com Attorneys for Defendant, REEVE-KNIGHT CONSTRUCTION, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA VIETNAM TOWN CONDOMINUM Case No,: 21CV381036 OWNER'S ASSOCIATION, a California Assigned for all purposes t0: corporatlon’ Hon. Christopher G. Rudy, Dept. 7 Plamtlff’ NOTICE 0F DEMURRER AND DEMURRER VS TO PLAINTIFF VIETNAM TOWN ' CONDOMINUM OWNERS ASSOCIATION’S TWN INVESTMENT GROUP, LLC’ a FIRST AMENDED COMPLAINT California limited liability company, REEVE- D t .KNIGHT CONSTRUCTION, 1NC., a T? e; 9,00 California corporation, and DOES 1 through D2135: 7' a°m' 300’ Judge: Hon. Christopher G. Rudy Defendants. Complaint filed: March 23, 2021 TO PLAINTIFF VIETNAM TOWN CONDOMINIUM OWNERS’ ASSOCIATION (“Plaintiff ’): PLEASE TAKE NOTICE that 0n a date and time t0 be determined by the Court pursuant t0 Local Rules 0f Court, Rule 8A, defendant REEVE-KNIGHT CONSTRUCTION, INC. (“REEVE- KNIGHT”) will and hereby does demurrer to the following causes 0f action in Plaintiff’s First Amended Complaint: DEMURRER TO THE FIFTH CAUSE OF ACTION The Fifth Cause 0f Action for Breach of Contract fails t0 state facts sufficient t0 constitute a cause of action for breach 0f contract pursuant t0 Code CiV. Proc. §430.10(e) because the First 1 NOTICE OF DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Amended Complaint does not allege facts sufficient t0 demonstrate: 1) REEVE-KNIGHT entered into a contract with Plaintiff0r any 0fPlaintiff” s members, 2) the terms 0fthe contract 0r contracts REEVE- KNIGHT purportedly entered into or the terms which it alleged breached, or 3) when 0r how REEVE- KNIGHT purportedly breached the contract 0r contracts. DEMURRER TO THE SIXTH CAUSE OF ACTION The Sixth Cause of Action for Breach of Contract - Third Party Beneficiary fails t0 state facts sufficient to constitute a cause of action for breach of contract - third party beneficiary pursuant to Code Civ. Proc. §430.10(e) because the First Amended Complaint does not allege facts demonstrating: 1) Which parties entered into contracts under which Plaintiff was an intended third party beneficiary; or 2) the terms 0f the contract 0r contracts to which Plaintiff was a third party beneficiary and which REEVE-KNIGHT purportedly breached. DEMURRER TO THE TENTH CAUSE OF ACTION The Tenth Cause 0f Action for Breach 0f Contract fails t0 state facts sufficient t0 constitute a cause of action for negligent misrepresentation pursuant to Code CiV. Proc. §430.10(e) because the First Amended Complaint does not allege specific facts demonstrating: 1) REEVE-KNIGHT made any alleged misrepresentations to Plaintiff, 2) Plaintiffjustifiably relied to its detriment on REEVE- KNIGHT’S alleged misrepresentations t0 her, 0r 3) Plaintiff was damaged as a result 0f those alleged misrepresentations and, all of Which are necessary elements to plead a cause of action for negligent misrepresentation. DEMURRER TO THE ELEVENTH CAUSE OF ACTION The Eleventh Cause 0f Action for Breach of Contract fails to state facts sufficient to constitute a cause of action for fraud non-disclosure pursuant t0 Code CiV. Proc. §430.10(e) because the First Amended Complaint does not allege specific facts demonstrating: 1) REEVE-KNIGHT made any alleged misrepresentations t0 Plaintiff, 0r 2) that Plaintiffjustifiably relied to its detriment on REEVE- KNIGHT’S alleged misrepresentations. DEMURRER TO THE TWELFTH CAUSE OF ACTION The Twelfth Cause 0f Action for Private Nuisance fails to state facts sufficient to constitute a cause 0f action for nuisance pursuant t0 Code CiV. Proc. §430. 10(6) because the Plaintiff’s allegations 2 NOTICE OF DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 which purportedly support that cause of action sound in in negligence stemming from alleged construction defects, and pursuant to the court’s holding in E1 Escorial Owners’ Association V. DLC Plastering, Inc. (2007) 154 A0.App.4th 1337, Plaintiff is precluding from asserting a nuisance case of action based 0n allegations 0f alleged construction defects. This demurrer is based 011 this notice, the memorandum of points and authorities in support of the demurrer, the Declaration 0f Robert L. Davis in support 0f the demurrer, and any and all other evidence or argument the Court may consider in ruling on the demurrer. PLEASE TAKE FURTHER NOTICE the Court follows California Rules 0f Court, Rule 3.1308(a)(1), regarding tentative rulings in civil law and motion and discovery matters. The tentative ruling on this matter will be available at the following link by 3:00 pm. 0n the day before the hearing on this motion: http://WWW.scscourt.0rg/0nline_services/tentatives/tentative_rulings_Dept7.shtml If the Court has not directed oral argument, a party contesting a tentative ruling must give notice of its intention t0 appear to the other side and the Court no later than 4:00 P.M. on the court day preceding the scheduled hearing. Appearances may be by telephone (through CourtCall) 0r in person. The tentative ruling Will automatically become the order 0f the Court on the scheduled hearing date if the Court has not directed oral argument and if the contesting party fails t0 timely notice an objection to the other side and the Court. Tentative rulings Will be posted on the Court’s website at www.scscourt.org, where further information may be found. If a party does not have access to the internet, the tentative ruling may be accessed by calling C0111“: Services at (408) 882-2515. DATED: February 9, 2022 COLLINSWORTH, SPECHT, CALKINS & GIAMPAOLI, LLP Z Wiw-E MATTHEW D. GIAMPAOLI, ESQ. ROBERT L. DAVIS, ESQ. Attorneys for Defendant REEVE-KNIGHT CONSTRUCTION, INC. B 3 NOTICE OF DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT