declaration of alina

Cal. Super. - 1st Dist.August 16, 2021

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 1 - DECLARATION OF ALINA PAVLOVA IN SUPPORT OF DEFENDANT 2100 GREEN STREET, INC.’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Janet L. Everson - 211161 JEverson@mpbf.com Suzie M. Tagliere - 286849 STagliere@mpbf.com Alina Pavlova - 315333 APavlova@mpbf.com MURPHY, PEARSON, BRADLEY & FEENEY 580 California Street, Suite 1100 San Francisco, CA 94104-1001 Telephone: (415) 788-1900 Facsimile: (415) 393-8087 Attorneys for Defendant 2100 GREEN STREET, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO WILLIAM BYERLY, Plaintiff, v. 2100 GREEN STREET, INC., and DOES 1 through 10, inclusive, Defendants. Case No.: CGC-20-584406 DECLARATION OF ALINA PAVLOVA IN SUPPORT OF DEFENDANT 2100 GREEN STREET, INC.’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Time: 9:30 am Date: September 15, 2020 Dept: 302 Judge: Hon. Ethan P. Schulman Action Filed: May 11, 2020 Trial Date: None Set I, Alina Pavlova, declare that: 1. I am an attorney duly licensed to practice in all courts of the State of California, and am an Associate with the law firm of Murphy, Pearson, Bradley & Feeney, attorneys of record for Defendant 2100 GREEN STREET, INC. (“Defendant”) in the matter of Byerly v. 2100 Green Street, Inc. (Case No. CGC-20-584406). I have personal knowledge of the information set forth below, unless noted as based on information and belief, all of which is true and correct to my own personal knowledge. If called upon to testify, I would do so competently. 2. I file this declaration in support of Defendant 2100 Green Street Inc.’s Demurrer to ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 07/21/2020 Clerk of the Court BY: JUDITH NUNEZ Deputy Clerk 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 2 - DECLARATION OF ALINA PAVLOVA IN SUPPORT OF DEFENDANT 2100 GREEN STREET, INC.’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Plaintiff’s First Amended Complaint, pursuant to Code of Civil Procedure Sections 430.41(a)(3)(A) and 430.41(a)(3)(B). Defendant, through its respective attorneys of record, made a good faith attempt to meet and confer with Plaintiff, through its attorney of record, Andrew Westley, to resolve the issue raised by Defendant regarding injunctive relief being a non-existent, unavailable, and/or invalid cause of action. The parties were not able to reach a resolution regarding their respective positions. 3. On or about May 11, 2020, Plaintiff filed its original complaint, asserting causes of action for Negligence, Breach of Proprietary Lease, and Negligent Infliction of Emotional Distress, and seeking various forms of relief, including injunctive relief and attorneys’ fees. 4. Each of these causes of action were inadequately pled, which also rendered the corresponding prayers for relief invalid, and make the entire complaint subject to demurrer. 5. On June 10, 2020, I sent Plaintiff’s counsel a meet and confer letter, explaining the deficiencies in the complaint that made the complaint subject to demurrer. A true and correct copy of this letter is attached hereto as Exhibit A. The identified deficiencies included failing to state facts sufficient to constitute a cause of action for all three asserted causes of action, and improperly requesting relief in the form of injunctive relief in light of the inadequately pled causes of action. Plaintiff’s counsel agreed with my position, and agreed to amend his complaint to correct these inadequacies. 6. On or about June 19, Plaintiff filed its operative, First Amended Complaint (“FAC”), asserting causes of action for Negligence, Breach of Proprietary Lease, and Injunctive Relief, and seeking various forms of relief, including injunctive relief. 7. I concluded that Plaintiff pleaded sufficient facts to state the causes of action for Negligence and Breach of Proprietary Lease. 8. However, the asserted cause of action for Injunctive Relief was improperly pleaded, as it is not a recognized, valid, or existing cause of action. 9. On July 8, 2020, I sent Plaintiff’s counsel a meet and confer letter, explaining the deficiency in the complaint regarding the non-existent cause of action for injunctive relief, and requesting that Plaintiff amend the FAC to remove this cause of action. I clarified that Defendant was not seeking to demur to injunctive relief as a requested remedy, as Plaintiff now appropriately sought injunctive relief as a form of relief, in light of the fact that Plaintiff’s remaining causes of action, and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 3 - DECLARATION OF ALINA PAVLOVA IN SUPPORT OF DEFENDANT 2100 GREEN STREET, INC.’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT more specifically, Breach of Proprietary Lease cause of action, to which the remedy of injunctive relief can be tied, were adequately pled. I also informed Plaintiff’s counsel that I would stipulate to Plaintiff filing a second amended complaint as to relieve Plaintiff of the necessity to seek leave of court for this second amendment. A true and correct copy of this meet and confer letter is attached hereto as Exhibit B. 10. On July 8, 2020, Plaintiff’s counsel left my colleague and co-counsel, Suzie M. Tagliere, a voicemail, in which he stated that he is out of town and unable to respond to my July 7, 2020 meet and confer letter in writing, but that he disagrees with Defendant’s position such that Defendant should proceed with the Demurrer. Plaintiff’s counsel stated that it is contradictory that Defendant sought to demur to the remedy for injunctive relief sought in the original complaint on the grounds that it was pled in the prayer section and not attached to a cause of action, and now Defendant seeks to demur to injunctive relief as an asserted cause of action. 11. On July 13, 2020, Plaintiff’s counsel sent me a meet and confer letter, responding to my July 8, 2020 letter, and memorializing the telephone conversation he had with Suzie M. Tagliere. In this letter, Plaintiff’s counsel emphasized that Plaintiff agreed to amend the complaint because Defendant stated that “the body of the Complaint itself did not assert any claim for injunctive relief.” So, to remedy this identified fault, Plaintiff amended the complaint to put “injunctive relief” in the body of the Complaint as a cause of action. Plaintiff’s counsel then stated that the reason for Defendant’s intent to demur to the First Amended Complaint and the cause of action for injunctive relief asserted therein “is directly contradictory to the position [Defendant] took in response to Plaintiff’s initial complaint.” A true and correct copy of this meet and confer response letter is attached hereto as Exhibit C. 12. Plaintiff counsel’s explanation for refusing to amend Plaintiff’s counsel demonstrates that Plaintiff’s counsel misunderstood the law and Defendant’s position. Injunctive relief must be tied to a substantive, valid, and adequately pled cause of action. In the original complaint, Plaintiff’s requested remedy for injunctive relief failed because all of the alleged causes of action were inadequately pled, and thus, there was no substantive, valid, and adequately pled cause of action to which injunctive relief could be tied to be appropriately requested. It was not, nor will it ever be, Defendant’s position that injunctive relief must be pled as a cause of action in order for Plaintiff to be able to validly pray for 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 4 - DECLARATION OF ALINA PAVLOVA IN SUPPORT OF DEFENDANT 2100 GREEN STREET, INC.’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT injunctive relief as a type of remedy. In fact, in its July 8, 2020 meet and confer letter, I stated that Defendant does not intend to demur to the injunctive relief prayer for relief, only as to the cause of action. This was because the FAC adequately pled a substantive cause of action to which the remedy for injunctive relief could be tied, namely, Breach of Proprietary Lease, and was thus appropriately sought. However, as a cause of action injunctive relief is not appropriately sought, and moreover, need not be sought in order for injunctive relief to be requested as a remedy. 13. Thus, because the parties remained in disagreement, and further, because Plaintiff instructed Defendant to proceed with the Demurrer, Defendant now brings this Demurrer to move this Court to order Plaintiff to remove its asserted cause of action for Injunctive Relief, as a cause of action, not as a remedy. DATED: July 21, 2020 Alina Pavlova AXP.3747882.docx EXHIBIT A SAN FRANCISCO LOS ANGELES SACRAMENTO 580 Cali fornia Street, Suite 1100 San Francisco, CA 94104 Telephone: 415-788-1900 Facsimile: 415-393-8087 June 10, 2020 Via Email Only/PDF Andrew E. Westley LAW OFFICE OF ANDREW WESTLEY PC 870 Market Street, Suite 788 San Francisco, CA 94102 awestley@westleylaw.com Re: Byerly: 2100 Green Street, Inc. Our File No.: CNAO.119739.1 Dear Mr. Westley: My firm and I represent 2100 Green Street, Inc., named Defendant in the action entitled William Byerly v. 2100 Green Street, Inc. Pursuant to Code of Civil Procedure Sections 430.31 and 435.5, please allow this letter to serve as a meet and confer effort regarding the legal deficiencies of Plaintiff’s Complaint. Our review of the Complaint indicates that Plaintiff has failed to state facts sufficient to constitute a cause action as to all three causes of action asserted against Defendant 2100 Green Street, Inc., such that the entire Complaint is subject to demurrer. (Cal. Code of Civ. P. § 430.10(e).) Negligence To support a negligence cause of action, plaintiff must plead: (1) defendant owed plaintiff a legal duty, (2) defendant breached the duty, (3) the breach was a proximate or legal cause of the plaintiff’s injuries, and (4) damages. For purposes of identifying whether the negligence cause of action has been sufficiently pled, the “analysis is limited to ‘the specific action plaintiff claims the particular [defendant] had a duty to undertake in the particular case.’ ” (Weimer v. Nationstar Mortgage, LLC (2020) 47 Cal.App.5th 341, 354.) “Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and … the plaintiff must indicate the acts or omissions which are said to have been negligently performed. Byerly: 2100 Green Street, Inc. June 10, 2020 Page 2 He may not recover upon a bare statement that the defendant’s negligence has caused him injury.’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) Here, Plaintiff failed to adequately plead how Defendant breached its duty and/or which of Defendant’s duties were negligently performed. Moreover, Plaintiff’s blanket and conclusory assertion that he suffered damages is legally inadequate for purposes of pleading the element of damages. Accordingly, Plaintiff fails to state sufficient facts to support a cause of action for Negligence, rendering it subject to demurrer. Breach of Proprietary Lease The law deems a lease to be a contract. (Munoz v. MacMillan (2011) 195 Cal.App.4th 648 p.655-56.) To support a breach of proprietary lease/breach of contract cause of action, plaintiff must plead the existence of a contract, plaintiff’s performance or excuse for failing to perform, defendant’s breach, and damage to plaintiff resulting therefrom. (Id., at p. 655.) In his Complaint, Plaintiff failed to plead his performance of excuse for failing to perform. The Breach of Proprietary Lease claim fails to state a cause of action as a matter of law. Moreover, where a written instrument is the foundation of a cause of action, plaintiff must either plead the contract’s precise language by attaching the contract as an exhibit or incorporating it by proper reference, or, in the alternative, plead “the legal effect of the contract.” (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402; Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199.) In his Complaint, Plaintiff failed to plead the contract at issue in either manner. Thus, the cause of action for Breach of Proprietary Lease is subject to demurrer for failing to state facts sufficient to constitute a cause of action on two different grounds. Negligent Infliction of Emotional Distress California courts have held that “there is no independent tort of negligent infliction of emotional distress. [Citations.].” (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 204; internal quotations omitted.) “[T]he negligent causing of emotional distress is not an independent tort, but the tort of negligence. [Citation.] The traditional elements of duty, breach of duty, causation, and damages apply.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) As Plaintiffs other causes of action are legally deficient, the derivative Negligent Infliction of Emotional Distress cause of action similarly fails as a matter of law and is subject to demurrer. Byerly: 2100 Green Street, Inc. June 10, 2020 Page 3 Prayer For Injunctive Relief Our review of the Complaint also indicates that Plaintiff’s prayer for “ordering Defendants: (a) to notify building occupants, in a manner deemed reasonable by the Court, that the use of the Penthouse Roof as an outdoor rooftop gathering area is not allowed; and (b) to adopt a plan of enforcement which the Court deems reasonable,” which amounts to a prayer for injunctive relief, is subject to Motion to Strike. (Cal. Code of Civ. P. §§ 436, 431.10(b)(3).) In his Complaint, Plaintiff fails to assert any cause of action pursuant to which equitable or injunctive relief may be granted. (Cal. Code of Civ. P. §431.10(b)(3).) Therefore, the Court is within its discretion to strike out this prayer for relief as “irrelevant, false, or improper matter.” (Cal. Code of Civ. § 436.) Prayer for Attorney’s Fees Pursuant to Civil Code §5975 2100 Green Street, Inc. is a stock cooperative, not governed by the Davis Stirling Act. (Civ. Code § 4200.) Notwithstanding the Act’s inapplicability, Plaintiff asserts a prayer for attorney’s fees under Civil Code §5975, a provision of Davis Stirling. Therefore, the prayer for attorney’s fees is subject to strike under Code of Civil Procedure § 436. It is my hope that we can resolve this matter informally, without unnecessary motion practice and court involvement. Please respond to this letter by email no later than close of business on Friday, June 12, 2020 to let me know whether you will amend and/or dismiss your Complaint. If we are unable to resolve these issues informally, Defendant will file a demurrer as to the entire Complaint and all causes of action therein, pursuant to Code of Civil Procedure Sections 430.10(e) and a concurrent motion to strike as to the prayers for equitable relief and attorney’s fees pursuant to Code of Civil Procedure Sections 436 and 431.10(b)(3). Very truly yours, Alina Pavlova cc: Suzie M. Tagliere (via Email/PDF) AXP.3727980.docx EXHIBIT B SAN FRANCISCO LOS ANGELES SACRAMENTO 580 California Street, Suite 1100 San Francisco, CA 94104 Telephone: 415-788-1900 Facsimile: 415-393-8087 July 8, 2020 Via Email Only/PDF Andrew E. Westley LAW OFFICE OF ANDREW WESTLEY PC 870 Market Street, Suite 788 San Francisco, CA 94102 awestley@westleylaw.com Re: Byerly: 2100 Green Street, Inc. Our File No.: CNAO.119739.1 Dear Mr. Westley: I am in receipt of Plaintiff’s First Amended Complaint (“FAC”) against my client, 2100 Green Street, Inc. Pursuant to Code of Civil Procedure Section 430.31 and 435.5, please allow this letter to serve as a meet and confer effort regarding the legal deficiency in Plaintiff’s FAC. Our review of the FAC indicates that Plaintiff has improperly asserted a cause of action for injunctive relief, making it subject to demurrer. (Cal. Code of Civ. P. § 430.10(e).) California law is well established and incontrovertible that a cause of action for “injunctive relief” does not exist. As the name implies, injunctive relief is “a remedy not a cause of action.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 734, emphasis added; McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159 (McDowell); Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168; See Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 618.) Injunctive relief is defined as “a writ or order commanding a person either to perform or to refrain from performing a particular act.” (McDowell, supra, 59 Cal.App.4th at p. 1160.) On the other hand, a cause of action is “comprised of a ‘primary right of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty.” (McDowell, supra, 59 Cal.App.4th at p. 1159.) Thus, by its nature, “injunctive relief” is a type of “damages” award, and not a legal theory that sounds in a “wrong” upon which a party may bring suit. Byerly v. 2100 Green Street, Inc. July 8, 2020 Page 2 In fact, Plaintiff’s FAC recognizes injunctive relief to be a type of remedy, as the FAC duplicates the language used under the “cause of action” section for injunctive relief - which, as described above, is improper - in the “prayer for damages” section, and, in effect, asks the court for the same relief twice. This is unnecessary and contrary to California authority. We therefore request that Plaintiff amend his complaint remove his “cause of action” for injunctive relief, and allow the prayer for injunctive relief stand alone in the prayer for relief section. To be clear, we do not intend to move to strike and/or demur to injunctive relief as an asserted prayer for relief, only as an asserted cause of action. Moreover, if you agree to so amend, we will stipulate to letting you file a second amended complaint that will remove the improperly asserted injunctive relief cause of action. (Cal. Code of Civ. P. § 472.) If we are unable to resolve this issue informally, Defendant will proceed with a Demurrer as to the third cause of action for injunctive relief, pursuant to Code of Civil Procedure Section 430.10(e). I sincerely hope we can avoid unnecessary motion practice and court involvement, and can resolve this deficiency in the complaint informally. Please let me know by close of business on Friday, July 10, 2020 whether you will agree to amend Plaintiff’s complaint in the manner specified above, namely, by removing “injunctive relief” as a cause of action. Very truly yours, Alina Pavlova cc: Suzie M. Tagliere (via Email/PDF) AXP.3747061.docx EXHIBIT C July 13, 2020 Via Email Only Alina Pavlova, Esq. Murphy Pearson Bradley & Feeney 580 California St., Suite 1100 San Francisco, CA 94104 Apavlova@MPBF.com Re: William Byerly v. 2100 Green Street, Inc. San Francisco Superior Case No. CGC-20-584406 Dear Ms. Pavlova: This is in response to your meet and confer letter dated 7/8/2020, and to memorialize my conversation of 7/10/2020 with your colleague Suzlie Tagliere in connection therewith. Background Plaintiff’s initial complaint set forth a prayer for injunctive relief. In response, you sent a meet and confer letter threatening to file a motion to strike Plaintiff’s prayer for injunctive relief on grounds that the body of the Complaint itself did not assert any claim for injunctive relief. In an effort to avoid unnecessary motion practice, Plaintiff filed a First Amended Complaint (“FAC”) which includes a claim for injunctive relief, both in the body of the FAC, and in the prayer for relief. Now you are taking the position that the FAC is problematic because Plaintiff’s request for injunctive relief belongs exclusively in the prayer for relief, and not as a separate claim in the body of the FAC itself. Your current position is directly contradictory to the position you took in response to Plaintiff’s initial Complaint. Plaintiff’s Claim for Injunctive Relief is Proper The cases cited in your meet and confer letter do not stand for the proposition you espouse, i.e. that Plaintiff’s claim for injunctive relief is improper and subject to dismissal on demurrer. Rather, the cases you cite involve situations where no cause of action could be maintained. In that event, a plaintiff’s claim for injunctive relief must be dismissed because “a cause of action must exist before a court may grant a request for injunctive relief.” Allen v. City RE: BYERLY V. 2100 GREEN STREET, INC. PAGE- 2- ____________________________ of Sacramento (2015) 234 Cal.App.4th 41, 65. In the case at bar, unlike the cases you cite, Plaintiff’s FAC states viable causes of action pursuant to which injunctive relief may be granted. As an aside, on 7/10/2020 I spoke with your colleague Suzie Tagliere and asked her to articulate from a practical standpoint why she believes it would matter whether my client’s claim for injunctive relief is designated as a separate claim. Ms. Tagliere responded that a jury might be prejudiced against Defendant by the number of causes of action alleged. That explanation is unpersuasive because equitable claims are properly decided by the Court, not the jury. Plaintiff will stand on the FAC. However, if the Court is inclined to agree with your position that a separately stated claim for injunctive relief cannot stand, the issue can easily be cured by an amended pleading. As always, please do not hesitate to contact me to discuss this matter. Thank you for your courtesy and cooperation Very truly yours, Andrew Westley Andrew E. Westley 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 5 - DECLARATION OF ALINA PAVLOVA IN SUPPORT OF DEFENDANT 2100 GREEN STREET, INC.’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT CERTIFICATE OF SERVICE I, Carmen Martinez, declare: I am a citizen of the United States, am over the age of eighteen years, and am not a party to or interested in the within entitled cause. My business address is 580 California Street, Suite 1100, San Francisco, California 9410. On July 21, 2020, I served the following document(s) on the parties in the within action: DECLARATION OF ALINA PAVLOVA IN SUPPORT OF DEFENDANT 2100 GREEN STREET, INC.’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT VIA MAIL: I am familiar with the business practice for collection and processing of mail. The above-described document(s) will be enclosed in a sealed envelope, with first class postage thereon fully prepaid, and deposited with the United States Postal Service at San Francisco, California on this date, addressed as listed below. X VIA E-MAIL: I attached the above-described document(s) to an e-mail message, and invoked the send command at approximately _____ AM/PM to transmit the e-mail message to the person(s) at the e-mail address(es) listed below. My email address is cmartinez@mpbf.com. Andrew E. Westley Law Offices of Andrew Westley 870 Market Street, Suite 788 San Francisco, CA 94102 E-mail: awestley@westleylaw.com Phone: (415) 362-2817 Fax: (415) 362-2819 Attorney For Plaintiff WILLIAM BYERLY I declare under penalty of perjury under the laws of the State of California that the foregoing is a true and correct statement and that this Certificate was executed on July 21, 2020. By: Carmen Martinez