notice of demurrer and demurrer by defendant cannon constructors north

Cal. Super. - 1st Dist.November 1, 2021

FILE #22782 1 DEFENDANT CANNON’S DEMURRER TO PLAINTIFF’S COMPLAINT 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 Edward J. Riffle, Esq. (State Bar No. 193983) Nadim G. Hegazi, Esq. (State Bar No. 264841) COLLINS + COLLINS LLP 790 E. Colorado Boulevard, Suite 600 Pasadena, CA 91101 (626) 243-1100 - FAX (626) 243-1111 Email: eriffle@ccllp.law Email: nhegazi@ccllp.law Attorneys for Defendants CANNON CONSTRUCTORS NORTH, INC., 1532 HARRISON OWNER LLC, and CITY AND COUNTY OF SAN FRANCISCO SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO RICHARD HOLTHOUSE, Plaintiffs, vs. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. CGC20587970 [Judge Garrett L. Wong, Dept. 610] NOTICE OF DEMURRER AND DEMURRER BY DEFENDANT CANNON CONSTRUCTORS NORTH, INC. TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF NADIM G. HEGAZI [Filed concurrently with [Proposed] Order] DATE: July 8, 2021 TIME: 9:30 DEPT: 302 Complaint Filed: 11/24/20 Trial Date: None TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE that on July 8, 2021, at 9:30 a.m., or as soon thereafter as this matter may be heard in Department 302 of the above-entitled court, located at 400 McAllister St., San Francisco, CA 94102, Defendant CANNON CONSTRUCTORS NORTH, INC. ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 05/03/2021 Clerk of the Court BY: SANDRA SCHIRO Deputy Clerk FILE #22782 2 DEFENDANT CANNON’S DEMURRER TO PLAINTIFF’S COMPLAINT 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 (“Cannon”) will and does hereby demur, generally and specifically, to the Complaint of Plaintiff RICHARD HOLTHOUSE. This Demurrer is made on the following grounds: DEMURRER TO THE FIRST CAUSE OF ACTION Cannon generally demurs to Plaintiff’s First Cause of Action for General Negligence under Code of Civil Procedure section 430.10(e) because the Complaint fails to state facts sufficient to constitute a cause of action. Cannon specially demurs to Plaintiff’s First Cause of Action for General Negligence under Code of Civil Procedure section 430.10(f) because the Complaint is uncertain. DEMURRER TO THE SECOND CAUSE OF ACTION Cannon generally demurs to Plaintiff’s First Cause of Action for Premises Liability under Code of Civil Procedure section 430.10(e) because the Complaint fails to state facts sufficient to constitute a cause of action. Cannon specially demurs to Plaintiff’s First Cause of Action for Premises Liability under Code of Civil Procedure section 430.10(f) because the Complaint is uncertain. On or about April 27, 2021, counsel Nadim Hegazi met and conferred with Plaintiff’s counsel, Claude Wyle, by telephone under Code of Civil Procedure section 431.41(a) to determine whether an agreement could be reached that would resolve the objections to be raised in this Demurrer. Mr. Hegazi and Mr. Wyle did not reach an agreement resolving the objections raised in this Demurrer. (Code of Civ. Proc. §§ 430.41(a), (a)(3)(A); Declaration of Nadim G. Hegazi, ¶ 4.) /// /// /// /// /// /// /// /// /// FILE #22782 3 DEFENDANT CANNON’S DEMURRER TO PLAINTIFF’S COMPLAINT 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 This Demurrer is made and based upon this Notice of Hearing on Demurrer and Demurrer, the attached Memorandum of Points and Authorities, the Declaration of Nadim G. Hegazi, the documents and pleadings on file herein with this Court, and any other matters that the Court may receive at the hearing on this matter. DATED: May 3, 2021 COLLINS + COLLINS LLP By: ________________________________ EDWARD J RIFFLE NADIM G. HEGAZI Attorneys for Defendants CANNON CONSTRUCTORS NORTH, INC., 1532 HARRISON OWNER LLC, and CITY AND COUNTY OF SAN FRANCISCO FILE #22782 4 DEFENDANT CANNON’S DEMURRER TO PLAINTIFF’S COMPLAINT 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 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This is a personal injury matter. Plaintiff alleges that on March 8, 2020, at or around 8:15 p.m., he was walking northbound on the western portion of Harrison Street between 12th Street and Norfolk Street in the City and County of San Francisco. (Complaint, 6:2-6.) Plaintiff alleges he was walking on a “section of this street” designated for pedestrians adjacent to a construction zone at 1532 Harrison Street, on the western portion of that street. (Id., 6:6-9.) Plaintiff alleges, without any specific facts, that “this street [was] owned and controlled by defendant City and County of San Francisco.” Plaintiff also alleges that because of a construction project, the “actual sidewalk at the accident site was unavailable and a pedestrian walkway was designed by way of a barricaded portion of the street adjacent to the regular sidewalk,” and “the walkway included a sewer and gutter grate.” (Id., 6:14-17.) Plaintiff states that certain items of equipment from the construction project protruded onto the portion of the street designated as a temporary pedestrian walkway. He also claims that the equipment and inadequate lighting at the accident site created a hazard in the surface of the pedestrian walkway and a tripping hazard. (Id., 6:19-24.) Plaintiff claims that while walking after dark “at the accident site,” there was inadequate lighting, and he could not see the sewer grate “or items that had been placed on the sewer grate which created a deviation in the surface of the pedestrian walkway.” (Id., 7:6-9.) Plaintiff claims that because of “appurtenances,” he tripped and fell, and suffered serious multiple, permanent, and severe injuries. (Id., 7:16-18.) Plaintiff does not allege any facts that Cannon had actual or constructive knowledge of any defective condition that caused Plaintiff’s injuries. Nor does Plaintiff allege who placed the “items” or “appurtenances” in the location where the accident occurred. (See generally id.) Based on these conclusory allegations-and Plaintiff’s Complaint in general that suffers from lack of specificity-Plaintiff has failed to state a cause of action for General Negligence and a cause of action for Premises Liability, both of which have the same elements: duty, breach, causation, and damages. Plaintiff fails to establish the element of duty, in particular, because the injury to Plaintiff was not foreseeable to Cannon. In addition, the Complaint is uncertain: Plaintiff does not describe FILE #22782 5 DEFENDANT CANNON’S DEMURRER TO PLAINTIFF’S COMPLAINT 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 anywhere in the Complaint what the dangerous condition was; how long it existed before the accident; that it was obvious; and that Cannon had actual or constructive knowledge of the dangerous condition. (See generally Complaint.) The Court should sustain the Demurrer without leave to amend. II. LEGAL STANDARD The function of a demurrer is to present to the court an issue of law regarding the sufficiency of the allegations set out in the pleading. (James v. Superior Court of San Francisco (1968) 261 Cal.App.2d 415, 416.) When any ground for objection to a complaint appears on the face thereof, objection on that ground may be taken by a demurrer to the pleading. (Cal. Civ. Proc. § 430.30(a).) For the purpose of testing the sufficiency of a cause of action, the demurrer admits the truth of all material facts properly pleaded. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Code of Civil Procedure section 430.10 provides, in pertinent part, that a party against whom a cross-complaint has been filed may object by demurrer on one or more of the following grounds: “(e) The pleading does not state facts sufficient to constitute a cause of action…[and] (f) The complaint or cross-complaint is “uncertain” (i.e., ambiguous and unintelligible).” It is axiomatic that a demurrer tests the legal sufficiency of the complaint. In evaluating a demurrer, a court accepts plaintiff’s facts as true, but “it does not admit contentions, deductions, or conclusions of fact or law alleged therein.” (Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713.) The rule that a demurrer applies only to defects appearing on face of complaint has several practical exceptions; one of which is that a complaint may be read as if it included matters judicially noticed. (See Code of Civil Proc. § 430.70; Bohrer v. Cty. of San Diego (1980) 104 Cal.App.3d 155, 164; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may properly take judicial notice of statutes, legislative acts, and other matters which are subject to judicial notice under the Evidence Code. (See Cnty. of Fresno v. Lehman (1991) 229 Cal.App.3d 340, 344-45.) A party may demur to the whole complaint or to any of the causes of action stated in the complaint. (Cal. Civ. Proc. § 430.50(a).) Pursuant to Code of Civil Procedure section 430.10, a party may demurrer against a complaint on the grounds that the (a) court does not have jurisdiction over the causes of action in the pleading; . . . (e) the complaint does not state facts sufficient to constitute a cause of action against the moving party; or (f) the pleading is uncertain, unintelligible, and FILE #22782 6 DEFENDANT CANNON’S DEMURRER TO PLAINTIFF’S COMPLAINT 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 ambiguous. (Cal. Civ. Proc. § 430.10(a), (e), and (f).) In reviewing demurrers, trial courts look to “the facts alleged in the complaint and appearing in the exhibits attached to the complaint” in addition to matters of judicial notice. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 730.) The court will accept all facts as true and its review will not go beyond the four-corners of the complaint. (Thorburn v. Dept. of Corrections (1998) 66 Cal.App.4th 1284, 1288.) “Furthermore, any allegations that are contrary to the law…will be treated as a nullity,” and courts do not accept plaintiffs’ “contentions, deductions, or conclusions of law and fact.” (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1102.) In evaluating a general demurrer, a court is to “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law.” (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 42; see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The main issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extrinsic information or exhibits, states a cause of action. (McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal. App. 4th 72, 73.) A complaint is vulnerable to a general demurrer on the ground that the pleading, or cause of action within the pleading, fails to state a cause of action. (Schauer v. Mandarin Gems of California, Inc. (2005) 125 Cal.App.4th 949, 955.) “[R]ecitals, references to, or allegations of material facts, which are left to surmise are subject to special demurrer for uncertainty.” (Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531, 537.) If the complaint is successfully challenged on demurrer, the burden is on the plaintiff to show how the defective pleading can be amended. (Assoc. of Cnty. Organizers for Reform Now v. Dep’t. of Indus. Relations (1995) 41 Cal.App.4th 298, 302.) III. LEGAL ARGUMENT A. PLAINTIFF’S FIRST CAUSE OF ACTION FOR GENERAL NEGLIGENCE IS SUBJECT TO GENERAL DEMURRER BECAUSE IT FAILS TO STATE A LEGALLY COGNIZABLE CLAIM. To prevail on a claim of general negligence, Plaintiff must establish the elements of duty, breach, causation, and damages. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529; Johnson v. Prasad (2014) 224 Cal. App. 4th 74, 78.) Based on the particular elements of duty and causation that FILE #22782 7 DEFENDANT CANNON’S DEMURRER TO PLAINTIFF’S COMPLAINT 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 are analyzed below, Plaintiff has failed to alleged facts establishing to support a claim for general negligence. i. Plaintiff’s Failure to Allege Facts Sufficient to Establish that Cannon Owed Him a Legal Duty is Fatal to His Negligence Claim. As a threshold matter, Plaintiff must establish that Defendant owed him a duty of care. (See Hayes v. Cnty. of S.D. (2013) 57 Cal.4th 622, 629.) In “determining duty’s existence and scope,” a court must consider several factors: “[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Johnson, 224 Cal.App.4th at 79-80 (emphasis added).) Courts have ruled that the most crucial factor to consider in determining whether to create an exception to the general duty to exercise ordinary care under California Civil Code section 1714 is whether the injury in question was foreseeable. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1145; Cal. Civ. Code § 1714(a).) “[A]s to foreseeability,…the court's task in determining duty is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed.” (Id. (emphasis in original).) Despite allegations in the Complaint that are based on improper conclusions of law, innuendo, and improper speculation-which the Court must disregard for purposes of this demurrer under Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713-Plaintiff has not established that Cannon owed him a duty of care to support a general negligence claim. The alleged conduct that resulted in Plaintiff’s harm was not foreseeable: Plaintiff fails to allege with specificity that Cannon was involved with, or had knowledge of, the allegedly defective condition; instead Plaintiff alleges generalities and conclusions about the “roadway” and “construction equipment” and “construction project,” etc. without any specific details. (See generally Complaint.) FILE #22782 8 DEFENDANT CANNON’S DEMURRER TO PLAINTIFF’S COMPLAINT 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 There are no allegations that Cannon placed any equipment on the roadway; how long that equipment was there; what the equipment was; and that Cannon knew, or should have known, about the equipment on the roadway. (See id.) Another factor that supports Plaintiff’s failure to allege duty on the part of Cannon is the lack of any allegations in the Complaint establishing the “closeness of the connection between the defendant’s conduct and the injury suffered.” (Johnson, 224 Cal.App.4th at 79-80.) Here, Plaintiff has failed to allege how Cannon’s acts or omissions are closely related to Plaintiff’s alleged injuries, such that a duty should be imposed on Cannon. The same dearth of allegations that do no establish foreseeability also do not establish the “closeness of the connection between the defendant’s conduct and the injury suffered”: there are no allegations that Cannon placed any equipment on the roadway; how long that equipment was there; what the equipment was; and that Cannon knew, or should have known, about the equipment on the roadway. (See generally Complaint.) Plaintiff also does not articulate what ordinary care Cannon was expected to exercise over the roadway. Yet, Plaintiff claims that Cannon’s conduct “fell below the standard of care of a reasonable person in that they negligently owned, operated, constructed, inspected, repaired, directed, supervised and/or controlled the western portion of Harrison Street at or near 1532 Harrison Street, in San Francisco, California so that a dangerous condition was created thereby….” (Complaint, p. 4.) Plaintiff’s laundry list of action verbs regarding Cannon’s alleged scope of responsibilities is insufficient to allow Cannon to prepare a defense. And overall, these allegations are insufficient to establish a duty (or a breach thereof) and how Cannon fell below the standard of care. So Cannon does not owe Plaintiff a duty. ii. Plaintiff’s Failure to Allege Facts Sufficient to Show That Cannon’s Acts or Omissions Factually or Proximately Caused Plaintiff’s Injuries Is Likewise Fatal to His General Negligence Claim. For his general negligence claim to prevail, Plaintiff must also establish that Cannon’s act or omissions caused his injuries. (See Garcia v. Super. Ct. (1990) 50 Cal.3d 728, 755.) In this regard, Plaintiff “must allege a causal connection between the negligence . . . and the injury he suffered.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 528 (2007) (quoting Christensen v. Super. Ct. (1991) FILE #22782 9 DEFENDANT CANNON’S DEMURRER TO PLAINTIFF’S COMPLAINT 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 54 Cal. 3d 868, 900).) And Plaintiff must do so by “set[ting] forth the essential facts of his . . . case ‘with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent’ of [his] claim.” (Annocki v. Peterson Enterps., LLC (2004) 232 Cal.App.4th 32, 36 (2014).) Plaintiff does not expressly identify or even suggest any causal or logical connection between Cannon’s conduct or omissions, and his injuries; nor does Plaintiff’s alleged injuries naturally give rise to an inference of causation. (See Bockrath v. Aldrich Chem. Co. (1999) 21 Cal.4th 71, 78 (“[W]hen . . . ‘the pleaded facts of negligence and injury do not naturally give rise to an inference of causation[,] the plaintiff must plead specific facts affording an inference the one caused the others.’” (citation omitted)); Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 251 (“While there are many possible causes of any injury, ‘[a] possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.’” (citation omitted)).) Indeed, Plaintiff’s allegations offer no facts that might explain how Cannon caused his injuries. B. PLAINTIFF’S SECOND CAUSE OF ACTION FOR PREMISES LIABILITY IS SUBJECT TO GENERAL DEMURRER BECAUSE IT FAILS TO STATE A LEGALLY COGNIZABLE CLAIM. Like the elements of general negligence, the elements of premises liability are “a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal. 5th 1132, 1145.) Based on the particular elements of duty and causation, as analyzed below, Plaintiff has failed to allege facts to support a premises liability cause of action. Civil Code section 1714(a) codifies the duty element, such that a person is required to exercise ordinary care, in his or her person or property, toward another person. (Cal. Civ. Code § 1714(a).) Moreover, “[c]ourts ... invoke[ ] the concept of duty to limit generally ‘the otherwise potentially infinite liability which would follow from every negligent act ....’ (Williams v. Fremont Corners, Inc. (2019) 37 Cal. App. 5th 654, 663.) The general duty to exercise ordinary care under section 1714, however, is not absolute: As analyzed in Section III.A.i., supra, the critical factor in determining if an exception to the general duty to exercise ordinary care under section 1714 should FILE #22782 10 DEFENDANT CANNON’S DEMURRER TO PLAINTIFF’S COMPLAINT 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 be created is “whether the injury in question was foreseeable.” (Kesner, 1 Cal.5th at 1145.) And in analyzing foreseeability, “the court's task in determining duty ‘is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed.’” (Id.) Based on the allegations in the Complaint, Plaintiff has not established that the injuries to Plaintiff were foreseeable to Cannon; therefore, Cannon owed no duty of care to Plaintiff to support a claim for Premises Liability. In particular, Plaintiff has not adequately alleged what affirmative conduct or omission by Cannon, if any, is related to Plaintiff’s injuries. Plaintiff does not present facts to establish that Cannon placed the equipment in the area where Plaintiff was injured. Nor does Plaintiff presents facts to establish that Cannon knew about the equipment, or should have known about the equipment. Not only that, Plaintiff does not articulate what ordinary care Cannon could have exercised to prevent the allegedly defective condition and injuries to Plaintiff. C. THE COMPLAINT IS UNCERTAIN. Plaintiff’s causes of action for General Negligence Premises Liability also fail because they is uncertain under Code of Civil Procedure section 430.10 (f). Plaintiffs fails to provide the necessary facts to support any of these causes of action, rendering the complaint uncertain as unintelligible and ambiguous. For example, the complaint fails to describe the premises at issue and only refers to it briefly as “at or near 1532 Harrison Street” without providing the exact address or description of the premises at all. (Complaint, 6:5-7.) In addition, Plaintiff does not articulate what the defective condition is; who placed it there; how long it existed; and how or why Cannon was responsible, if it all, for maintaining the area where the defective condition existed. (See generally Complaint.) In sum, Plaintiff fails to plead with any certainty how Cannon was negligent in its use or maintenance of the walkway at issue in the Complaint. Plaintiff also fails to plead with certainty how Cannon’s negligence was a “substantial factor” in causing Plaintiff’s harm-there is no scintilla of pleading in the Complaint as to Cannon’s alleged negligence. Plaintiff does not even attempt to set forth a theory or any facts about what Cannon did or knew regarding the walkway that Plaintiff traversed on March 8, 2020. Therefore, per Code of Civil Procedure section 430.10(f), Plaintiff’s FILE #22782 11 DEFENDANT CANNON’S DEMURRER TO PLAINTIFF’S COMPLAINT 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 Complaint as to Cannon is uncertain, and Cannon is precluded from preparing an adequate defense. As such, Cannon requests that this Court sustain the Demurrer without leave under section 430.10(f). IV. CONCLUSION Plaintiff’s allegations in support of his First Cause of Action for General Negligence and Second Cause of Action for Premises Liability fail to state facts sufficient to constitute a legally cognizable claim. Therefore, the Court should sustain Cannon’s Demurrer to Complaint. (See Cal. Civ. Code §§ 430.10(e)-(f).) Cannon requests any additional relief this court deems just and proper. DATED: May 3, 2021 COLLINS + COLLINS LLP By: ________________________________ EDWARD J RIFFLE NADIM G. HEGAZI Attorneys for Defendants CANNON CONSTRUCTORS NORTH, INC., 1532 HARRISON OWNER LLC, and CITY AND COUNTY OF SAN FRANCISCO FILE #22782 12 DEFENDANT CANNON’S DEMURRER TO PLAINTIFF’S COMPLAINT 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 DECLARATION OF NADIM G. HEGAZI I, Nadim G. Hegazi, declare as follows: 1. I make this Declaration in Support of Defendant Cannon’s Demurrer to Plaintiff’s Complaint. 2. I am an attorney duly licensed to practice law in the State of California. I, and this law firm, Collins + Collins LLP, represent Defendant Cannon in the above-captioned action. I have personal knowledge as to the matters declared herein and can competently testify thereto if called upon to do so. 3. On or about November 24, 2020, Plaintiff filed his Complaint for General Negligence and Premises Liability related to a trip and fall at a construction site. 4. On or about April 9, 2021, counsel Nadim Hegazi met and conferred with Plaintiff’s counsel, Mr. Claude Wyle, by telephone per Code of Civil Procedure section 431.41(a) to determine whether an agreement could be reached that would resolve the objections to be raised in this Demurrer. Mr. Hegazi and Mr. Wyle did not reach an agreement resolving the objections raised in this Demurrer. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. This Declaration was executed on May 3, 2021, at Oakland, California. ________________________________ FILE #22782 13 DEFENDANT CANNON’S DEMURRER TO PLAINTIFF’S COMPLAINT 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 (CCP §§ 1013(a) and 2015.5; FRCP 5) State of California, ) ) ss. County of Contra Costa. ) I am employed in the County of Contra Costa, State of California. I am over the age of 18 and not a party to the within action; my business address is 2175 N California Boulevard., Suite 835, Walnut Creek, California 94596. On this date, I served the foregoing document described as NOTICE OF DEMURRER AND DEMURRER BY DEFENDANT CANNON CONSTRUCTORS NORTH, INC. TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF NADIM G. HEGAZI on the interested parties in this action by placing same in a sealed envelope, addressed as follows: Claude A. Wyle, Esq. CHOULOS, CHOULOS & WYLE LLP 275 Battery St. Ste. 1300 San Francisco, CA 94111 Phone: 415-474-7800 cwyle@ccwlawyers.com ATTORNEYS FOR PLAINTIFF RICHARD HOLTHOUSE (BY MAIL) - I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in South Pasadena, California to be served on the parties as indicated on the attached service list. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at South Pasadena, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. (BY CERTIFIED MAIL) - I caused such envelope(s) with postage thereon fully prepaid via Certified Mail Return Receipt Requested to be placed in the United States Mail in South Pasadena, California. BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVIDING FOR OVERNIGHT DELIVERY (BY ELECTRONIC FILING AND/OR SERVICE) - I served a true copy, with all exhibits, electronically on designated recipients listed on the attached service list. FEDERAL EXPRESS - I caused the envelope to be delivered to an authorized courier or driver authorized to receive documents with delivery fees provided for. (BY FACSIMILE) - I caused the above-described document(s) to be transmitted to the offices of the interested parties at the facsimile number(s) indicated on the attached Service List and the activity report(s) generated by facsimile number (626) 243-1111 indicated all pages were transmitted. (BY PERSONAL SERVICE) - I caused such envelope(s) to be delivered by hand to the office(s) of the addressee(s). Executed on May 3, 2021 at Walnut Creek, California. (STATE) - I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (FEDERAL) - I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Kelly Forst kforst@ccllp.law