Opposition Objections

Cal. Super. - 6th Dist.March 25, 2021

\DOOQONUl-bUJNr- NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bUJNi-‘O 21 CV381 326 Santa Clara - Civil Electronically Filed LEON E. JEW (SBN: 219298) by Superior Court of CA, DAYHEE LAW GROUP County of Santa Clara, 5776 Stoneridge Mall Road, Suite 288 0n 2,7,2022 3:11 PM Pleasanton, CA 94588 ReVIewed By: M. Sorum Telephone: (925) 463-3288 Case #21 CV381326 Fax; (925) 463-3218 Envelope: 8234286 Attorney for The Company APLUS CONTRUCTION COMPANY SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED CIVIL JURISDICTION Case N0. 2 1CV38 1 326 APLUS CONTRUCTION COMPANY , a partnership, . . PLAINTIFF’S OPPOSITION TO Plalntlff, DEFENDANT’S PETITION TO VS COMPEL MEDIATE AND ARBITRATE JIANMIN WANG, an individual; and DOES DATE: February 22, 2022 TIME: 09:00 a.m. DEPT. 19 1-5, inclusive, Defendants. I. STATEMENT OF FACT 1. On July 6, 2018, both Parties entered into a Home Improvement Agreement (“the Original Agreement”) for purpose of remodeling a single family home located at 5087 Tata Drive, San Jose, CA 95124. 1 PLAINTIFF’S OPPOSITION TO DEFENDANT’S PETITION TO COMPEL MEDIATE AND ARBITRATE M. Sorum \DOOQONUl-bUJNr- NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bUJNi-‘O 2. II. III. After partial performance of the Original Agreement, however, 0n 01/10/2020, the Parties entered a new contract (“New Contract”, see Exhibit 1 of Declaration ofHui Liu, filed together With Plaintiff s current Objection to Motion), Which substantially modified the Original Agreement and includes a new consideration. The New Contract superseded the Original Agreement, and doesn’t contain any mediation and arbitration clause. It’s also worth mentioning that, the New Contract is NOT part of the Original Agreement, nor a change order to the Original Agreement. This is because, section 15 0f the Original Agreement specifically stated that, “. . .A Change Order should be prepared in writing and signed by Contractor [Defendant] and the Owner [Plaintiff]...”. In this manner, as the New Contract was not signed by both Parties, and was instead agreed upon Via email exchange between the Parties, it is not a part of the Original Agreement. Defendant Wang’s False Statement Defendant Wang submitted a false statement to this Court, stating that “. . .at n0 time did I sign 0r otherwise agree any Change Order that modified 0r extinguished the Mediation and Arbitration clause...” (see Paragraph 4 of Defendant Wang’s decla. in the Defendant’s Motion t0 Compel package) Defendant Wang in fact has acknowledged, negotiated, and agree the New Contract by emailed his consent t0 Plaintiff 0n January 13, 2020, three day after Defendant Wang was present With the New Contract. (See Exhibit 2 of Decla. of Hui Liu) Argument 2 PLAINTIFF’S OPPOSITION TO DEFENDANT’S PETITION TO COMPEL MEDIATE AND ARBITRATE \DOOQONUl-bUJNr- NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bUJNi-‘O 7. 10. 11. 12. Plaintiff argues that: (1) the Parties have executed a New Contract containing no mediation and arbitration clauses, Which superseded the Original Agreement; and (2) the New Contract is not part of the Original Agreement since the latter specifically requires that any change order must contains both Parties’ signatures. California Civil Code §1584 states that: “Performance 0f the conditions 0f a proposal, 0r the acceptance 0f the consideration oflered with a proposal, is an acceptance 0fthe proposal. ” “Contracts may be express or implied.” Marvin v. Marvin, (1 976) 18 Cal.3d 660, 678. An implied contract is established “by the acts and conduct of the parties, interpreted in light of the subject-matter and the surrounding circumstances. . .” Marvin, 18 Cal.3d at 678, FN 16. Here, despite the New Contract doesn’t contain both Parties’ signature, it actually was offered and accepted between the Parties because: (1) Defendant explicitly agreed the New Contract in his email sent t0 Plaintiff; and (2) When Plaintiff in fact performed its duties required by the New Contract in Defendant’s residential home, Defendant has never rejected Plaintiff” s performance. Further, pursuant t0 Cal. Civil Procedure section 163 8, “The language ofa contract is t0 govern its interpretation, ifthe language is clear and explicit. ” Section 1639 of Cal. Civil Procedure further states : “when a contract is reduced t0 writing, the intention 0f the parties is t0 be ascertained from the writing alone, ifpossible. ” 3 PLAINTIFF’S OPPOSITION TO DEFENDANT’S PETITION TO COMPEL MEDIATE AND ARBITRATE \OOOflQUl-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQQUIAUJNHOKOOOQQUI-bUJNHO 13. Here, from the clear and explicit language of section 15 0f the Original Agreement, it states that “...A Change Order should be prepared in writing and signed bv Contractor [Defendant] and the Owner [P1aintifi]...”. In this manner, as the New Contract contains no signatures 0f both Parties and is accepted by email exchange, it shall not be part 0f the Original Agreement. 14. Therefore, as the Parties apparently entered a New Contract that doesn’t contain mediation and arbitration clause, Plaintiff’s petition to compel mediation and arbitration is baseless and shall be denied in its entirety. Date: February 7, 2022 flawed») LEON E. JEW Attorney for APLUS CONTRUCTION COMPANY 4 PLAINTIFF’S OPPOSITION TO DEFENDANT’S PETITION TO COMPEL MEDIATE AND ARBITRATE