plaintiffs memorandum of points and authorities in opposition to defen

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 Andrew E. Westley (Cal. Bar No. 171940) LAW OFFICE OF ANDREW WESTLEY PC 870 Market Street, Suite 788 San Francisco, California 94102 Phone: (415) 362-2817 Fax: (415) 362-2819 Email: awestley@westleylaw.com Attorney for Plaintiff, WILLIAM BYERLY SUPERIOR COURT OF THE STATE OF CALIFORNIA SAN FRANCISCO COUNTY UNLIMITED JURISDICTION WILLIAM BYERLY, Plaintiff, v. 2100 GREEN STREET, INC.; and DOES 1 through 10, inclusive, Defendants. Case No. CGC-20-584406 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Time: 9:30 AM Date: 9/15/2020 Dept: 302 I. INTRODUCTION This Memorandum of Points and Authorities is submitted in opposition to Defendant’s Demurrer to Plaintiff’s First Amended Complaint (“FAC”). The demurrer should be overruled on both procedural and substantive grounds: Procedural defect. The demurrer was incorrectly noticed to be heard in Department 302, but under Rule 8.10 of the Local Rules of Court for the San Francisco Superior Court, the demurrer is required to be heard by the Real Property Court (Department 501) because this is a case arising out of ownership and possession of real property. Substantive deficiencies of Defendant’s demurrer. Defendant has demurred on two grounds: (1) Plaintiff’s FAC does not state facts sufficient to state any cause of action; and MEMO. OF POINTS & AUTHORITIES IN OPPOSITION TO DEMURRER CASE NO. CGC-20-584406- 1 - ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 09/01/2020 Clerk of the Court BY: RONNIE OTERO 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) Plaintiff’s claim for an injunction is not a valid cause of action. The demurrer should be overruled because, as discussed in complete detail below, Defendant’s own papers in support of the demurrer concede that Plaintiff’s FAC states sufficient facts in support of the claims for negligence and breach of proprietary lease. Additionally, Plaintiff’s claim for an injunction is entirely proper. II. BACKGROUND Plaintiff is the owner of a residential penthouse unit in San Francisco. FAC ¶¶ 8-10. Various unit owners and their guests utilize the roof above Plaintiff’s penthouse as a rooftop gathering area which significantly and unreasonably interferes with Plaintiff’s right to quiet use and enjoyment of his unit. FAC ¶ 20. Moreover, use of the penthouse roof as a rooftop gathering area is not compliant with the building’s governing documents, it is not lawful, and it is unsafe. FAC ¶ 14. This lawsuit was filed on 5/11/2020. Plaintiff’s initial Complaint set forth three causes of action: negligence; breach of proprietary lease (one of the building’s governing documents); and negligent infliction of emotional distress. The prayer for relief in the initial Complaint sought monetary damages and an injunction directing Defendant to notify unit owners that use of the penthouse roof as a rooftop gathering area is not allowed. Plaintiff’s prayer for relief also sought attorney’s fees (as well as costs, prejudgment interest, etc.). A court-stamped copy of the initial Complaint is attached as Exhibit A to the accompanying Declaration of Andrew Westley. Defendant’s counsel, before filing any responsive pleading to Plaintiff’s initial Complaint, sent a meet and confer letter stating the following, in pertinent part (see Westley Dec., Exh. B): 1. Defendant intended to demur to all three causes of action; 2. Defendant intended to file a motion to strike Plaintiff’s prayer for an injunction on grounds that the body of the Complaint itself did not assert any such claim; and 3. Defendant intended to file a motion to strike Plaintiff’s prayer for attorney’s fees. In an effort to avoid unnecessary motion practice, Plaintiff timely filed the FAC which resolved the issues raised by Defendant’s counsel as follows (see Westley Dec., Exh. C): MEMO. OF POINTS & AUTHORITIES IN OPPOSITION TO DEMURRER CASE NO. CGC-20-584406- 2 - 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. The FAC includes additional factual allegations in support of Plaintiff’s causes of action for negligence and breach of proprietary lease; 2. The FAC does not allege a separate cause of action for negligent infliction of emotional distress; 3. Plaintiff’s claim for an injunction is set forth both in the body of the pleading and in the prayer for relief; and 4. The FAC does not include a prayer for attorney’s fees. Defendant’s counsel, after receiving the FAC, then sent a new meet and confer letter arguing that the FAC is problematic because Plaintiff’s request for an injunction belongs exclusively in the prayer for relief, and not as a separate claim in the body of the FAC itself. (See Westley Dec., Exh. D.) Defendant’s counsel did not raise any other issues in her meet and confer letter. (Id.) Plaintiff’s undersigned counsel responded to Defendant’s counsel’s meet and confer letter by pointing out that her position regarding Plaintiff’s claim for an injunctive is directly contradictory to the position she took in response to Plaintiff’s initial Complaint. (See Westley Dec., Exh. E.) As such, Plaintiff elected to stand on the FAC. (Id.) Defendant then demurred to the FAC and incorrectly noticed the demurrer to be heard in Department 302. III. LEGAL ANALYSIS A. The Demurrer Was Incorrectly Noticed to Be Heard in Department 302 Under Rule 8.10 of the Local Rules of Court for the San Francisco Superior Court, Defendant’s demurrer should have been noticed to be heard by the Real Property Court (Department 501) because this is a case arising out of ownership and possession of real property. B. Defendant’s Own Demurrer Papers Concede That Plaintiff’s FAC States Facts Sufficient to State a Cause of Action Against Defendant Defendant’s contention that Plaintiff’s FAC fails to state facts sufficient to state any cause MEMO. OF POINTS & AUTHORITIES IN OPPOSITION TO DEMURRER CASE NO. CGC-20-584406- 3 - 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 of action is belied by Defendant’s own papers which concede that Plaintiff’s causes of action for negligence and breach of proprietary lease have been sufficiently pled. Specifically, Defendant’s memorandum of points and authorities states the following: 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. Defendant’s Memo. of Points and Auth., at p. 3, lines 17-19. C. Defendant’s Claim for an Injunction Is Proper Plaintiff’s third cause of action alleges the following pertinent facts: The proprietary lease between Defendant and the unit owners provides that each owner shall have the right to quiet enjoyment of their unit; owners shall not interfere with the rights of other residents, shall not annoy other residents by unreasonable noises or otherwise, and shall comply with all city departments with respect to the premises; each unit owner is responsible for ensuring that they and their co-occupants and guests do not interfere with the comfort and/or quiet enjoyment of other others; and the public stairways shall not be used for any purpose other than for ingress to and egress from the units. FAC ¶ 57. Defendant has breached its contractual obligation(s) owed to Plaintiff, as set forth explicitly in the proprietary lease and as implied by law, by failing to take any action or steps to preserve Plaintiff’s quiet enjoyment of his home, and by failing to take any action in connection with the unlawful use of the penthouse roof as a rooftop gathering area. FAC ¶ 58. Defendant has also breached is duty to exercise ordinary care and skill in managing the building. FAC ¶ 59. Plaintiff’s third cause of action seeks an injunction directing Defendant: (a) to notify building occupants, in a manner deemed reasonable by the Court, that 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. FAC ¶ 60. Plaintiff’s claim for an injunction further alleges that unless Defendant is ordered to take action to curtail use of the penthouse roof as a rooftop gathering area, and to implement a plan of enforcement, Plaintiff will be irreparably injured in that he will continue to be substantially deprived of the quiet enjoyment of his home. FAC ¶ 61. Also, monetary damages are inadequate MEMO. OF POINTS & AUTHORITIES IN OPPOSITION TO DEMURRER CASE NO. CGC-20-584406- 4 - 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 for the following reasons: Plaintiff will be forced to institute a multiplicity of suits for monetary damages if Defendant continues to refuse to take appropriate measures to curtail use of the penthouse roof as a rooftop gathering area; it is difficult to determine the precise amount of damages that Plaintiff has suffered and will continue to suffer as a result of the unreasonable and substantial interference with his quiet enjoyment of his home; and a money judgment against Defendant is unlikely to ensure that building occupants and their guests will curtail their use the penthouse roof as a rooftop gathering area. FAC ¶ 62. The cases cited by Defendant in support of its demurrer do not stand for the proposition Defendant espouses, i.e. that Plaintiff’s claim for an injunction is improper and subject to demurrer. Rather, the cases cited by Defendant involve situations where no cause of action could be maintained. In that event, a 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 of Sacramento (2015) 234 Cal.App.4th 41, 65. In the case at bar, unlike the cases cited by Defendant, Defendant concedes that Plaintiff’s FAC states viable causes of action for negligence and breach of proprietary lease, pursuant to which an injunction is proper. D. Leave to Amend Should Be Granted If the Court Is Inclined to Grant the Demurrer If the Court is inclined to grant Defendant’s demurrer, Plaintiff respectfully requests leave to amend. In sustaining a demurrer, “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217, 1227; Stevens v. Superior Court (1999) 75 Cal. App. 4h 594, 601. Indeed, it is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that the plaintiff can state a good cause of action. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Okun v. Superior Court (1981) 29 Cal. 3d 442, 460. Any defect with respect to Plaintiff’s claim for injunctive relief can easily be cured by amending the heading, “Third Cause of Action - Injunctive/Equitable Relief” to read “Facts in Support of Prayer for Injunctive/Equitable Relief.” MEMO. OF POINTS & AUTHORITIES IN OPPOSITION TO DEMURRER CASE NO. CGC-20-584406- 5 - 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 IV. CONCLUSION For all of the foregoing reasons, Defendant’s demurrer should be overruled in all respects, together with such other and further relief as may be just and proper. Dated: August 31, 2019 LAW OFFICE OF ANDREW WESTLEY PC Attorneys for Plaintiff, WILLIAM BYERLY By: ____________________________________ Andrew E. Westley MEMO. OF POINTS & AUTHORITIES IN OPPOSITION TO DEMURRER CASE NO. CGC-20-584406- 6 - 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 PROOF OF SERVICE I, the undersigned, hereby declare that I am, and at all times herein was, an active member of the State Bar of California. My business address is 870 Market Street, Suite 788, San Francisco, CA 94102. On the date set forth below, I served true and correct copies of the below-listed document(s) to which this declaration is appended: PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT [ ] BY U.S. MAIL - I placed, at my place of business, a true copy thereof, enclosed in a sealed envelope for collection and mailing with the United States Postal Service that same day in the ordinary course of business, addressed to the individual(s) listed below. [ ] BY HAND - I caused the above document(s) to be delivered by hand to the individual(s) listed below. [ ] VIA FACSIMILE TRANSMISSION - I caused each such document(s) to be sent by facsimile to all counsel for same day delivery to the individual(s) listed below at the facsimile transmission numbers so listed. [XX ] BY ELECTRONIC SERVICE: Based on the Superior Court of California, County of San Francisco’s Local Rules governing e-filing and e-service of documents, I transmitted the document(s) to the following person(s) through One Legal, a Court approved e-filing and e- service provider. I did not receive within a reasonable time after the transmission any electronic message or other indication that the transmission was unsuccessful. Individual(s) served: Alina Pavlova, Esq. Murphy Pearson Bradley & Feeney 580 California St., Suite 1100 San Francisco, CA 94104 Email: APavlova@MPBF.com I declare under penalty of perjury under the Laws of the State of California that the foregoing is true and correct. Dated: September 1, 2020 ___________________________ Andrew E. Westley