memorandum of points and authorities in support of defendant 2100 gree

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 - MEMORANDUM OF POINTS AND AUTHORITIES 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 MEMORANDUM OF POINTS AND AUTHORITIES 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. INTRODUCTION Defendant 2100 GREEN STREET, INC. (“Defendant”) hereby demurs to the third cause of action for Injunctive Relief alleged in Plaintiff WILLIAM BYERLY (“Plaintiff”) First Amended Complaint (“FAC”) on the grounds that Injunctive Relief is not an existing, recognized, and/or valid cause of action. The FAC accordingly fails to state facts sufficient to constitute a cause of action for cause of action that does not exist, which is, in turn, subject to demurrer pursuant to Code of Civil Procedure Section 430.10(e). Because Plaintiff will never be able to state sufficient facts to constitute a non-existent cause of action, the defect in Plaintiff’s FAC is incurable, and this demurrer must be 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 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT 2100 GREEN STREET, INC.’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT sustained without leave to amend. II. STATEMENT OF FACTS AS PLED IN THE FAC Defendant is an incorporated stock cooperative and residential apartment building in San Francisco. (Request For Judicial Notice In Support of Defendant 2100 Green Street, Inc.’s Demurrer To Plaintiff’s First Amended Complaint, ¶ 1, Exhibit A, ¶ 6 (“RFJN”).) Plaintiff is and individual, and a shareholder of the stock cooperative and resident in the apartment building. (RFJN, ¶ 1, Exhibit A, ¶ 1, 9.) Plaintiff alleges that the apartment building is made up of 22 units. (RFJN, ¶ 1, Exhibit A, ¶ 8.) Occupancy of each unit within the apartment building is governed by the “Proprietary Lease.” (RFJN, ¶ 1, Exhibit A, ¶ 7.) Plaintiff’s unit is located on the top floor, above which is a roof. (RFJN, ¶ 1, Exhibit A, ¶ 11.) Plaintiff alleges that use of the roof is prohibited by governmental, quasi-governmental, and/or administrative, codes, rules, regulations, and/or policies, and further, is contrary to the express and implied provisions of the Proprietary Lease and other apartment building rules and regulations. (RFJN, ¶ 1, Exhibit A, ¶¶ 14, 15.) Plaintiff complains that numerous building occupants have been using the roof as a social gathering area. (RFJN, ¶ 1, Exhibit A, ¶ 13.) One of these gathering areas is directly above Plaintiff’s main bedroom. Plaintiff alleges that when building occupants and/or their guests are on the roof, there is significant noise that interferes with Plaintiff’s quiet enjoyment of his unit and aggravates his medical condition. (RFJN, ¶ 1, Exhibit A, ¶¶ 13, 20.) Plaintiff alleges that despite Plaintiff’s requests for Defendant to prevent and/or prohibit building occupants from going on and using the roof, Defendant has failed to take any action. (RFJN, ¶ 1, Exhibit A, ¶¶ 23-25.) Accordingly, Plaintiff brings the present action on the basis that Defendant breached its duties to Plaintiff to exercise ordinary care and skill in managing the apartment building and to preserve Plaintiff’s quiet enjoyment of his home, and also, breached the terms of the Proprietary Lease. (RFJN, ¶ 1, Exhibit A, ¶¶34-36, 38.) III. PROCEDURAL HISTORY On May 11, 2020 Plaintiff filed his original complaint against Defendant, alleging causes of action for Negligence, Breach of Proprietary Lease, and Negligent Infliction of Emotional Distress, 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 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT 2100 GREEN STREET, INC.’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT seeking relief in the form of, inter alia, injunctive relief, and attorneys’ fees. (RFJN, ¶ 2; Declaration of Alina Pavlova In Support Of Defendant 2100 Green Street, Inc.’s Demurrer To Plaintiff First Amended Complaint, ¶ 3 (“Pavlova Declaration”).) Each of these causes of action were inadequately pled, and thus, their corresponding prayers for relief were invalid. (Pavlova Declaration, ¶ 4.) As such, the original complaint was subject to demurrer, in its entirety. (Pavlova Declaration, ¶ 4.) On June 10, 2020 Defendant sent a meet and confer letter to Plaintiff, thoroughly explaining the inadequacies in the complaint, and requesting that Plaintiff amend the complaint, or force Defendant to file a demurrer. (Pavlova Declaration, ¶ 5.) Specifically, Defendant explained that Plaintiff failed to state facts sufficient to constitute a cause of action for all three causes of action asserted in the Complaint; in turn, having failed to adequately plead any cause of action, Plaintiff had could not to pray for injunctive relief, as there was no valid cause of action asserted that could legally give rise to a basis for such relief; and finally, because Defendant is not governed by the Davis Stirling Act (Cal. Civ. Code § 4200, et seq.), there was no basis for a prayer for attorneys’ fees. (Pavlova Declaration, ¶ 5.) Plaintiff agreed to amend. (Pavlova Declaration, ¶ 5.) On June 19, 2020 Plaintiff filed the FAC, alleging causes of action for Negligence, Breach of Proprietary Lease, and Injunctive Relief, and seeking relief in the form of, inter alia, injunctive relief. (RFJN, ¶ 1.) The FAC corrected the deficiencies as to the previously pled Negligence and Breach of Proprietary Lease causes of action, and requested injunctive relief which is now tied to the revised causes of action. (RFJN, ¶ 1; Pavlova Declaration, ¶ 7.) However, the FAC also asserted a cause of action for Injunctive Relief, which does not exist as a recognized or valid cause of action, and having failed in its effort to resolve this dispute with Plaintiff’s counsel informally, to which Defendant now demurs. (RFJN, ¶ 1; Pavlova Declaration, ¶¶ 8-13.) IV. LEGAL ARGUMENT A. Standard On Demurrer A demurrer tests the sufficiency of plaintiff’s pleading by raising issues of law. (See Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324.) A reviewing court will give the complaint a reasonable interpretation by reading it as a whole, but it will not assume the truth of mere contentions, deductions, or conclusions. (See Moore v. Regents of University of California (1990) 51 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 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT 2100 GREEN STREET, INC.’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Cal.3d 120.) To be adequately pled, a complaint must state facts sufficient to constitute a cause of action. (Cal. Code Civ. P. § 430.10(e).) These facts must state a claim which comprises of a legal cause of action. (Wise v. Superior Court (1990) 222 Cal.App.3d 1008, 1013.) Where sufficient facts are not pled in support of a valid cause of action, a demurrer is appropriate to eliminate the inadequately pled, invalid cause of action. (Cal. Code Civ. P. § 430.10(e).) A defendant’s burden in a demurrer proceeding is to establish that the complaint is substantively defective on its face. (Gilbert v. State of California (1990) 218 Cal.App.3d 234, 240-41.) In responding to a demurrer, a plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakeshaw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43.) Where the factual allegations on the face of the complaint do not establish certain essential elements and thereby fail to state a cause of action, the plaintiff’s claim must be deemed defective as a matter of law, and a demurrer must be granted. (Gilbert, supra, 218 Cal.App.3d., at p. 241.) “A demurrer must be sustained where the facts alleged do not entitle the plaintiff to relief under any possible theory. Where there is no possibility amendment would cure the complaint’s defects, it is appropriate to sustain the demurrer without leave to amend.” (City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 800.) Plaintiff bears the burden of showing in what manner it will be able to amend the complaint to change its legal deficiency. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) It is appropriate to challenge a complaint and asserts a cause of action for injunctive relief on demurrer. (See Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719 (Ivanoff).) B. Plaintiff’s Cause Of Action For Injunctive Relief Fails As A Matter Of Law Because Such Cause Of Action Does Not Exist California law is well established 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, supra, 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; Camp v. Board of Supervisors (1981) 123 Cal.App.3d 334, 355.) Injunctive relief is defined as “a writ or order commanding a person either to perform or to refrain from performing 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 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT 2100 GREEN STREET, INC.’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 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 remedy, not a legal theory that sounds in a “wrong” upon which a party may bring suit. Contrary to the above-cited incontrovertible authority, Plaintiff improperly asserts a cause of action for injunctive relief. Specifically, Plaintiff twice asks this Court to order Defendant to “(a) notify building occupants, in a manner deemed reasonable by the Court, that use of the roof as an outdoor rooftop gathering area is not allowed; and (b) to adopt a plan of enforcement which the Court deems reasonable.” (RFJN, ¶ 1.) Through this imploring language, Plaintiff emphasizes that injunctive relief, as the name implies, is a type of relief, not a cause of action. Because no such cause of action exists, this Court must grant Defendant’s demurrer as to the “cause of action” for injunctive relief. Further, because Plaintiff cannot, in any way, amend his complaint to state facts sufficient to constitute a cause of action for a non-existent cause of action, this defect in the FAC cannot be cured. “Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear but no liability exists under substantive law.” (Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436; Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1465.) Accordingly, this Court must sustain Defendant’s demurrer without leave to amend. C. The Parties Met And Conferred In Good Faith, But Were Unable To Resolve The Dispute During Defendant’s meet and confer with Plaintiff, and despite Defendant’s best efforts to clarify, Plaintiff continuously misunderstood Defendant’s reason for seeking amendment of the FAC and ultimately, now demurring to the injunctive relief cause of action. (Pavlova Declaration, ¶ 9-13.) Plaintiff expressed that Defendant cannot reasonably seek to demur to the injunctive relief cause of action asserted in the FAC in light of the fact that Defendant intended to demur to injunctive relief as a remedy in original complaint on the grounds that “the body of the Complaint itself did not assert any claim for injunctive relief.” (Pavlova Declaration, ¶¶ 10, 11.) Plaintiff conveyed that the cause of action for injunctive relief was asserted specifically to address what Defendant identified to be a deficiency in the original complaint, where injunctive relief was stated only as a type of remedy. (Pavlova Declaration, 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 - 6 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT 2100 GREEN STREET, INC.’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT ¶ 10, 11.) However, it is clear that Plaintiff misconstrues the law and thus, Defendant’s position. (Pavlova Declaration, ¶¶ 9-12.) Contrary to Plaintiff’s misunderstanding, Defendant did not intend to demur to the original complaint on the basis that injunctive relief was not separately pled as its own cause of action, in addition to a prayer for relief. To be entitled to injunctive relief - as a remedy - Plaintiff need not, and in fact, cannot, plead a cause of action for injunctive relief. (Pavlova Declaration, ¶ 12.) However, Plaintiff must adequately plead a valid, existing cause of action to which injunctive relief can be legally tied; in other words, Plaintiff must adequately plead a valid cause of action pursuant to which injunctive relief can be granted as a type of remedy, such as breach of contract. (See Mesa Shopping Center - East, LLC v. O Hill (2014) 232 Cal.App.4th 890 (Mesa Shopping Center); Pavlova Declaration, ¶¶ 9-12.) As discussed above, a cause of action for injunctive relief is not a valid and/or existing cause of action. Defendant intended to demur as to the prayer for injunctive relief in the original complaint because none of Plaintiffs’ causes of action were adequately pled, such that there was no proper legal basis pursuant to which such relief could be granted. (Pavlova Declaration, ¶¶ 5, 9, 12.) Where no causes of action “may be maintained, [the] request for injunctive relief fails as well.” (Ivanoff, supra, 9 Cal.App.5th at p. 734.) As already discussed above, this is because injunctive relief necessarily must tied to a valid and proved cause of action, of which a cause of action for injunctive relief is not one such valid cause of action. “ ‘A cause of action must exist before a court may grant a request for injunctive relief.’ ” (Ivanoff, supra, 9 Cal.App.5th at p. 734, quoting Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 64.) “Injunctive relief must be tethered to a substantive cause of action.” (Mesa Shopping Center, supra, 232 Cal.App.4th at p. 901.) Because injunctive relief is a type of remedy that must be grounded in a cause of action, injunctive relief “ ‘may not be issued if the cause of action is not established.’ ” (Ivanoff, supra, 9 Cal.App.5th at p. 734, quoting Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 618.) Thus, because in Plaintiff’s original complaint all three causes of action were inadequately pled, the prayer for injunctive relief, as a requested remedy, also failed. (Pavlova Declaration, ¶¶ 5, 9. 12.) However, contrary Plaintiff’s understanding of Defendant’s position, the prayer for injunctive relief, as a requested remedy, did not fail because a cause of action for injunctive 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 - 7 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT 2100 GREEN STREET, INC.’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT relief was not asserted. In the FAC, in addition to improperly asserting injunctive relief as a cause of action, Plaintiff also prays for injunctive relief as a remedy1. (RFJN, ¶ 1; Pavlova Declaration, ¶ 6.) Injunctive relief is a remedy that can be tied to a breach of contract cause of action. (See Mesa Shopping Center, supra, 232 Cal.App.4th 890.) Defendant does not presently demur, and never expressed any intent to demur, as to the injunctive relief as a type of remedy in the FAC, but maintains that injunctive relief cannot be stated as a stand-alone cause of action. (Pavlova Declaration, ¶¶ 9, 12.) V. CONCLUSION For the reasons set forth herein, Defendant respectfully requests that the Court sustain this demurrer, without leave to amend, as to Plaintiff’s cause of action for injunctive relief. Because Plaintiff will never be able to allege sufficient facts to constitute a cause of action that does not exist, Plaintiff’s cause of action for injunctive relief inherently fails. No amendment by Plaintiff can create injunctive relief into existence, and make it a valid cause of action. Accordingly, Defendant’s demurrer to Plaintiff’s FAC must be sustained without leave to amend his compliant. DATED: July 21, 2020 MURPHY, PEARSON, BRADLEY & FEENEY By: Alina Pavlova Suzie M. Tagliere Attorneys for Defendant 2100 GREEN STREET, INC. AXP.3747620.docx 1 Significantly, Plaintiff copies the language he uses in the section for injunctive relief as a “cause of action” in the section for “prayer of relief,” wherein injunctive relief is sought as a remedy. In so doing, Plaintiff unnecessarily and improperly asks for the same relief twice. 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 - 8 - MEMORANDUM OF POINTS AND AUTHORITIES 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 94104. On July 21, 2020, I served the following document(s) on the parties in the within action: MEMORANDUM OF POINTS AND AUTHORITIES 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