Preview
1 Michael C. Johnston, Esq. sbn 123783
Law Offices Of
2 MICHAEL C.JOHNSTON
P.O. Box 450
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San Mateo, CA 94401
(650)343-5050
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Attorney for: Defendant, BJJF, LLC,
6 A California Limited Liability Company.
7
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SAN MATEO
10 UNLIMITED CIVIL JURISDICTION
11
ASSIGNED FOR ALL PURPOSES: DPT.2,HON.JUDGE MARIE S. WEINER
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SS and AR,LLC,a California Limited ) CaseNo.:22-CIV-01362
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Liability Company,and Sudhir Mathur and )
Shanu Mathur, individually and dba Safari ) DECLARATION OF MICHAEL C.
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Kid, ) JOHNSTON RE:“MEET & CONFER” IN
15 Plaintiffs, ) SUPPORT OF DEFENDANT,
) BJJF, LLC’S, MOTON TO STRIKE
16 VS. PLAINTIFFS’ COMPLAINT.
)
17 )
BJJF, LLC,a California Limited Liability ) [COMPANION TO DEMURRER]
18 Company,et al.. )
Defendants. )
19
Date: June 29,2022
20 Time: 2:00 p.m.
Dpt: 2
21 Judge: Hon. Marie S. Weiner
22
I, Michael C. Johnston, declare as follows:
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1. I am an attorney at law duly licensed to practice before the courts of the State ol
24
California, and I am the attorney of record for the defendant, BJJF, LLC.
25
26 2. I make this declaration pursuant to the “meet and confer,” standards in Code of Civil
27 Procedure, section 430.41 (demurrer), and section 435.5 (motion to strike).
28
1
DECLARATION OF MICHAEL C. JOHNSTON RE:"MEET* CONFER” IN SUPPORT OF DEFENDANT.BJJF, LLC’S, MOTON TO
STRIKE PLAINTIFFS’ COMPLAINT.
1 3. Before filing the demurrer and motion to strike in this matter, I made the following
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attempts to meet and confer with the plaintiffs’ attorney, Harry Price:
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A. On May 6, 2022, at approximately 1 1:40 a.m., 1 called Mr. Price at the
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telephone number listed for his office on the complaint (650-949-0840), the telephone
5
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line answered and pushed into a voice mailbox for Mr. Price. I left a voicemail for Mr.
7 Price advising that 1 represented the defendant BJJF, LLC, in his client, Safari Kid’s
8
complaint, and that 1 wanted to discuss the possible filing of a demurrer and motion to
9
strike, and further requested that Mr. Price call me at my office telephone number of 650-
10
343-5050.
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B. I did not receive a return telephone call that morning.
12
13 C. Also on May 6, 2022, about an hour later at approximately 1 :03 p.m., 1 sent
14 Mr. Price an email to his office email address listed on the complaint
15 a
(harrv@priceslaw.com') with an attached 3-page meet and confer,” letter. The email
16
message indicated it was successfully sent.
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D. Also on May 6, 2022, I mailed the original of my “meet and confer,” letter to
18
19 Mr. Price at his office address listed on the complaint (40 Main Street, Los Altos, CA
20 94022).
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4. A copy of my May 6, 2022, email and “meet and confer,” letter to Mr. Price are
22
attached here marked as “Exhibit 1.”
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5. As of the date of writing this declaration, 1 have not received a return telephone call,
24
25 responsive email, or any other written communication from Mr. Price in response to my attempts
26 to “meet and confer,” regarding the demurrer or motion to strike.
27
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DECLARATION OF MICHAEL C. JOHNSTON RE:“MEET & CONFER” IN SUPPORT OF DEFENDANT. BJJF, LLC’S, MOTON TO
STRIKE PLAINTIFFS’ COMPLAINT.
1 I declare under penalty of perjury under the laws of the State of California that the
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foregoing is true and correct and that this declaration was executed on May 1 1, 2022, at San
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Mateo, California.
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5 /s/ Michael C. Johnston
Michael C. Johnston
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DECLARATION OF MICHAEL C. JOHNSTON RE;“MEET & CONFER” IN SUPPORT OF DEFENDANT,BJJF, LLC’S, MOTON TO
STRIKE PLAINTIFFS’ COMPLAINT.
99
EXHIBIT “1
johnstoivgomez@msircom
From: Michael Johnston
Sent: Friday, May 6, 2022 1:03 PM
To: harry@priceslaw.com
Subject: Safari Kid v. BJJF, LLC - Meet and Confer - Demurrer and Motion Strike
Attachments: Price-Meet Confer-Demurrer Strike-05062022.pdf
Attn; Harry Price
Price Law Firm
40 Main Street
Los Altos. CA 94022
T: 650-949-0840
E: harrv@priceslaw.com
Safari Kid, et al. vs. BJJF. LLC
San Mateo County Superior Case No, 22-C1V-01362
Dear Mr. Price,
Attached please find a copy of my demurrer and motion to strike "meet & confer,” letter(3 pages) to you dated today.
Please contact me if you have any questions.
Sincerely
Michael C. Johnston
Law Offices of Michael C. Johnston
P.O. Box 450
San Mateo, CA 94401
T: 650-343-5050
E: JohnstonLaw@OutLook.com
C4 55
1
EXHIBIT 1
LAW OFFICES OF
MICHAEL C. JOHNSTON
P.O. Box 450
San Mateo, California 94401
Tel:(650) 343-5050
May 6, 2022
Via: Mail and Email (haiTv@priceslav.com)
AUn: Harry Price
Price Law Firm
40 Main Street
Los Altos, CA 94022
T: 650-949-0840
E: harrv@i:)riceslavv.com
Re: SS and AR,LLC, and Sudhir Mathur and Shanu Mathur, dba Safari Kid
V. BJJF. LLC
San Mateo County Superior Court Case No.: 22-CIV-01562
MEET and CONFER C.C.P. §430.41 (Demurrer) and §435,5 (Motion to Strike).
Dear Mr. Price:
As mentioned in my voicemail for you this morning at about 11:^0 a.m., I represent the defendant,
BJJF, LLC, in the above-reference action brought by your c ients, the plaintiffs collectively
referred to as, “Safari Kid.” Please refer all further matters in th s action to my attention.
Also as mentioned in my voicemail, the reason for my call was to have a “meet and confer,” to
discuss that BJJF, LLC, was considering filing a Demurrer and Motion to Strike Safari Kid’s
compliant and whether you would elect to file a First Amended t^omplaint(FAC)instead.
The substance of the grounds for the potential Demurrer and Motion to Sti'ike the complaint arc
set forth on the attached two pages to provide you with enough detail that you could address the
objections in a FAC.
Please let me know as soon as possible whether you will be filing a FAC or taking no action and
instead waiting to be served with the Demurrer and Motion to Sfrike.
If you will be filing a FAC, I will accept service by mail on behalf of BJJF, LLC.
Please contact me if you have any questions.
Sincerely,
Michael C.NJohnst«i
enc: Meet & Confer - C.C.P. §430.41 (Demurrer) and 55
ATTACHMENT
MEET and CONFER
C.C.P. S430.41 (Demurrer)and S435.5 flVLjtion to Strike).
DEMURRER
CCP 430.10(e). The pleading does not state facts sufficient to constitule a cause of action.
CCP 430.10(f). The pleading is uncertain (“uncertain” includes ambiguous and unintelligible).
P. 3 U 9: L 19.[Not state facts sufficient to constitute a cause ofaction, and uncertain].
[“Notwithstanding their past lease payment deferral agreement..,'*]
Affects all four causes of action in that it is incorporated into all four.
MOTION STRIKE
CCP 436(a)Strike out any irrelevant, false, or improper matter inserted in any pleading.
P.2^ 5: L 25-27. [Irrelevant, false, or improper],
“After opening their doors for business, the facility became known not only for its location and
quality staff, but also for its large classrooms, large multi-purpose room and inviting playground
area.”
P. 3 ^ 6: L 1-8. [Irrelevant, false, or improper].
Entire paragraph:
“As has been widely reported,the COVID-19 pandemic occurred luring the beginning ofthe 2020
calendar year, which had a dramatic impact upon all types of businesses. The resulting “shelter in
place” and stay at home orders not only reduced employees going to work places, but also severely
reduce the demand for pre-schools and child care facilities. Tha'-, in turn, had a negative impact
upon the cash flow rates of numerous businesses. It even dampened commercial lease rates
throughout the Bay Area. See: httDs://www.wsi.com/articles/after-covid-19-office"leases-larfieIV::
come-with-bargin-rates"11617701423. Many commercial landlords were required to provide
concessions, such as free rent, to entice tenants into empty premises,”
P. 3 T[ 7: L 10-11. [Irrelevant, false, or improper].
“As a result ofthe pandemic, which included govemmentally issued eviction moratoriums, during
2020”
P. 3 ^ 8. L 16-18. [Irrelevant, false, or improper],
“By October, 2021, SAFARI KID, after explaining the fmanoial impact of the prior eighteen
months ofenduring the pandemic,initiated and began paying the pre-pandemic lease payment rate
of$24,317.00 per month to BJJF.”
P. 3 H 9: L 19-25. [Irrelevant, false, or improper].
Entire Paragraph:
“Notwithstanding their past lease payment deferral agreement...”
P. 4^ 11: L 6-7. [Irrelevant, false, or improper].
“Although BJJF has acknowledged ... all payments current...”
44 55
EXHIBIT 1
P,4 H 13: L 23-25,[Irrelevant, false, or improper],
“It would be wrongful to allow BJJF to claim late fees for a time period when they themselves told
SAFARI KID that there would be no problems in the collection oithe partial payments during the
pandemic”
P. 5 ^ 15: L 3-6. [Irrelevant, false, or improper].
Entire paragraph:
“SAFARI KID is informed and believes, and thereon alleges, that both of said “Notices” issued
by BJJF are pretextual in nature, all done as part of an effort to intimidate SAFARI KID into
accepting an amendment to the Lease Agreement which would cause SAFARI KID to forfeit its
valuable property right in the ten year term Lease Agreement.”
P. 5 H 16: L 12-15. [Irrelevant, false, or improper],
“BJJF has failed and refused to provide an accounting to support its determination that SAFARI
KID has breached its financial responsibilities pursuant to the Lease Agreement; and,additionally,
BJJF has now chosen to threaten eviction proceedings, despite tke fact that there are no grounds
for any claim of default”
P.6 ^ 19: L 6-9. [Irrelevant, false, or improper],
“Additionally, childcare is a valuable service in substantial demand by parents in the community
that SAFARI KIDS serves,and it will be a disservice to a great number offamilies in the Sn Mateo
public community to force a closure of the center owned and operated by SAFARI KIDS.”
P. 9 Fourth CA (Accounting). [Irrelevant, false, or improper].
Entire CA(an accounting was provided).
C4
EXHIBIT I
Preview
1 Michael C. Johnston, Esq. sbn 123783 Law Offices Of 2 MICHAEL C.JOHNSTON P.O. Box 450 3 San Mateo, CA 94401 (650)343-5050 4 5 Attorney for: Defendant, BJJF, LLC, 6 A California Limited Liability Company. 7 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN MATEO 10 UNLIMITED CIVIL JURISDICTION 11 ASSIGNED FOR ALL PURPOSES: DPT.2,HON.JUDGE MARIE S. WEINER 12 SS and AR,LLC,a California Limited ) CaseNo.:22-CIV-01362 13 Liability Company,and Sudhir Mathur and ) Shanu Mathur, individually and dba Safari ) DECLARATION OF MICHAEL C. 14 Kid, ) JOHNSTON RE:“MEET & CONFER” IN 15 Plaintiffs, ) SUPPORT OF DEFENDANT, ) BJJF, LLC’S, MOTON TO STRIKE 16 VS. PLAINTIFFS’ COMPLAINT. ) 17 ) BJJF, LLC,a California Limited Liability ) [COMPANION TO DEMURRER] 18 Company,et al.. ) Defendants. ) 19 Date: June 29,2022 20 Time: 2:00 p.m. Dpt: 2 21 Judge: Hon. Marie S. Weiner 22 I, Michael C. Johnston, declare as follows: 23 1. I am an attorney at law duly licensed to practice before the courts of the State ol 24 California, and I am the attorney of record for the defendant, BJJF, LLC. 25 26 2. I make this declaration pursuant to the “meet and confer,” standards in Code of Civil 27 Procedure, section 430.41 (demurrer), and section 435.5 (motion to strike). 28 1 DECLARATION OF MICHAEL C. JOHNSTON RE:"MEET* CONFER” IN SUPPORT OF DEFENDANT.BJJF, LLC’S, MOTON TO STRIKE PLAINTIFFS’ COMPLAINT. 1 3. Before filing the demurrer and motion to strike in this matter, I made the following 2 attempts to meet and confer with the plaintiffs’ attorney, Harry Price: 3 A. On May 6, 2022, at approximately 1 1:40 a.m., 1 called Mr. Price at the 4 telephone number listed for his office on the complaint (650-949-0840), the telephone 5 6 line answered and pushed into a voice mailbox for Mr. Price. I left a voicemail for Mr. 7 Price advising that 1 represented the defendant BJJF, LLC, in his client, Safari Kid’s 8 complaint, and that 1 wanted to discuss the possible filing of a demurrer and motion to 9 strike, and further requested that Mr. Price call me at my office telephone number of 650- 10 343-5050. 11 B. I did not receive a return telephone call that morning. 12 13 C. Also on May 6, 2022, about an hour later at approximately 1 :03 p.m., 1 sent 14 Mr. Price an email to his office email address listed on the complaint 15 a (harrv@priceslaw.com') with an attached 3-page meet and confer,” letter. The email 16 message indicated it was successfully sent. 17 D. Also on May 6, 2022, I mailed the original of my “meet and confer,” letter to 18 19 Mr. Price at his office address listed on the complaint (40 Main Street, Los Altos, CA 20 94022). 21 4. A copy of my May 6, 2022, email and “meet and confer,” letter to Mr. Price are 22 attached here marked as “Exhibit 1.” 23 5. As of the date of writing this declaration, 1 have not received a return telephone call, 24 25 responsive email, or any other written communication from Mr. Price in response to my attempts 26 to “meet and confer,” regarding the demurrer or motion to strike. 27 28 2 DECLARATION OF MICHAEL C. JOHNSTON RE:“MEET & CONFER” IN SUPPORT OF DEFENDANT. BJJF, LLC’S, MOTON TO STRIKE PLAINTIFFS’ COMPLAINT. 1 I declare under penalty of perjury under the laws of the State of California that the 2 foregoing is true and correct and that this declaration was executed on May 1 1, 2022, at San 3 Mateo, California. 4 5 /s/ Michael C. Johnston Michael C. Johnston 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 MICHAEL C. JOHNSTON RE;“MEET & CONFER” IN SUPPORT OF DEFENDANT,BJJF, LLC’S, MOTON TO STRIKE PLAINTIFFS’ COMPLAINT. 99 EXHIBIT “1 johnstoivgomez@msircom From: Michael Johnston Sent: Friday, May 6, 2022 1:03 PM To: harry@priceslaw.com Subject: Safari Kid v. BJJF, LLC - Meet and Confer - Demurrer and Motion Strike Attachments: Price-Meet Confer-Demurrer Strike-05062022.pdf Attn; Harry Price Price Law Firm 40 Main Street Los Altos. CA 94022 T: 650-949-0840 E: harrv@priceslaw.com Safari Kid, et al. vs. BJJF. LLC San Mateo County Superior Case No, 22-C1V-01362 Dear Mr. Price, Attached please find a copy of my demurrer and motion to strike "meet & confer,” letter(3 pages) to you dated today. Please contact me if you have any questions. Sincerely Michael C. Johnston Law Offices of Michael C. Johnston P.O. Box 450 San Mateo, CA 94401 T: 650-343-5050 E: JohnstonLaw@OutLook.com C4 55 1 EXHIBIT 1 LAW OFFICES OF MICHAEL C. JOHNSTON P.O. Box 450 San Mateo, California 94401 Tel:(650) 343-5050 May 6, 2022 Via: Mail and Email (haiTv@priceslav.com) AUn: Harry Price Price Law Firm 40 Main Street Los Altos, CA 94022 T: 650-949-0840 E: harrv@i:)riceslavv.com Re: SS and AR,LLC, and Sudhir Mathur and Shanu Mathur, dba Safari Kid V. BJJF. LLC San Mateo County Superior Court Case No.: 22-CIV-01562 MEET and CONFER C.C.P. §430.41 (Demurrer) and §435,5 (Motion to Strike). Dear Mr. Price: As mentioned in my voicemail for you this morning at about 11:^0 a.m., I represent the defendant, BJJF, LLC, in the above-reference action brought by your c ients, the plaintiffs collectively referred to as, “Safari Kid.” Please refer all further matters in th s action to my attention. Also as mentioned in my voicemail, the reason for my call was to have a “meet and confer,” to discuss that BJJF, LLC, was considering filing a Demurrer and Motion to Strike Safari Kid’s compliant and whether you would elect to file a First Amended t^omplaint(FAC)instead. The substance of the grounds for the potential Demurrer and Motion to Sti'ike the complaint arc set forth on the attached two pages to provide you with enough detail that you could address the objections in a FAC. Please let me know as soon as possible whether you will be filing a FAC or taking no action and instead waiting to be served with the Demurrer and Motion to Sfrike. If you will be filing a FAC, I will accept service by mail on behalf of BJJF, LLC. Please contact me if you have any questions. Sincerely, Michael C.NJohnst«i enc: Meet & Confer - C.C.P. §430.41 (Demurrer) and 55 ATTACHMENT MEET and CONFER C.C.P. S430.41 (Demurrer)and S435.5 flVLjtion to Strike). DEMURRER CCP 430.10(e). The pleading does not state facts sufficient to constitule a cause of action. CCP 430.10(f). The pleading is uncertain (“uncertain” includes ambiguous and unintelligible). P. 3 U 9: L 19.[Not state facts sufficient to constitute a cause ofaction, and uncertain]. [“Notwithstanding their past lease payment deferral agreement..,'*] Affects all four causes of action in that it is incorporated into all four. MOTION STRIKE CCP 436(a)Strike out any irrelevant, false, or improper matter inserted in any pleading. P.2^ 5: L 25-27. [Irrelevant, false, or improper], “After opening their doors for business, the facility became known not only for its location and quality staff, but also for its large classrooms, large multi-purpose room and inviting playground area.” P. 3 ^ 6: L 1-8. [Irrelevant, false, or improper]. Entire paragraph: “As has been widely reported,the COVID-19 pandemic occurred luring the beginning ofthe 2020 calendar year, which had a dramatic impact upon all types of businesses. The resulting “shelter in place” and stay at home orders not only reduced employees going to work places, but also severely reduce the demand for pre-schools and child care facilities. Tha'-, in turn, had a negative impact upon the cash flow rates of numerous businesses. It even dampened commercial lease rates throughout the Bay Area. See: httDs://www.wsi.com/articles/after-covid-19-office"leases-larfieIV:: come-with-bargin-rates"11617701423. Many commercial landlords were required to provide concessions, such as free rent, to entice tenants into empty premises,” P. 3 T[ 7: L 10-11. [Irrelevant, false, or improper]. “As a result ofthe pandemic, which included govemmentally issued eviction moratoriums, during 2020” P. 3 ^ 8. L 16-18. [Irrelevant, false, or improper], “By October, 2021, SAFARI KID, after explaining the fmanoial impact of the prior eighteen months ofenduring the pandemic,initiated and began paying the pre-pandemic lease payment rate of$24,317.00 per month to BJJF.” P. 3 H 9: L 19-25. [Irrelevant, false, or improper]. Entire Paragraph: “Notwithstanding their past lease payment deferral agreement...” P. 4^ 11: L 6-7. [Irrelevant, false, or improper]. “Although BJJF has acknowledged ... all payments current...” 44 55 EXHIBIT 1 P,4 H 13: L 23-25,[Irrelevant, false, or improper], “It would be wrongful to allow BJJF to claim late fees for a time period when they themselves told SAFARI KID that there would be no problems in the collection oithe partial payments during the pandemic” P. 5 ^ 15: L 3-6. [Irrelevant, false, or improper]. Entire paragraph: “SAFARI KID is informed and believes, and thereon alleges, that both of said “Notices” issued by BJJF are pretextual in nature, all done as part of an effort to intimidate SAFARI KID into accepting an amendment to the Lease Agreement which would cause SAFARI KID to forfeit its valuable property right in the ten year term Lease Agreement.” P. 5 H 16: L 12-15. [Irrelevant, false, or improper], “BJJF has failed and refused to provide an accounting to support its determination that SAFARI KID has breached its financial responsibilities pursuant to the Lease Agreement; and,additionally, BJJF has now chosen to threaten eviction proceedings, despite tke fact that there are no grounds for any claim of default” P.6 ^ 19: L 6-9. [Irrelevant, false, or improper], “Additionally, childcare is a valuable service in substantial demand by parents in the community that SAFARI KIDS serves,and it will be a disservice to a great number offamilies in the Sn Mateo public community to force a closure of the center owned and operated by SAFARI KIDS.” P. 9 Fourth CA (Accounting). [Irrelevant, false, or improper]. Entire CA(an accounting was provided). C4 EXHIBIT I