Preview
1 Harry I. Price, Esq., Bar No. 077817
Price Law Firm
2 40 Main Street
Los Altos, CA 94022
3 Phone: (650) 949-0840
Fax: (650) 949-0844
4 Email: harry@priceslaw.com
5 Attorneys for Plaintiffs SAFARI KID
6
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
COUNTY OF SAN MATEO
9
10 SS and AR, LLC, a California Limited Liability Case No. 22-CIV-01362
Company, and Sudhir Mathur and Shanu Mathur, Case No. 22-UDL-00387
11 individually and dba Safari Kid,
MEMORANDUM OF POINTS AND
12 Plaintiffs, AUTHORITIES IN SUPPORT OF
MOTION TO CONSOLIDATE TWO
13 v. RELATED PENDING ACTIONS
[CCP §§ 403, 1048]
14 BJJF, LLC, a California Limited Liability
Company, and DOES 1 through 10, inclusive, Date: August 3, 2022
15
Time: 2:00 p.m.
16 Defendants.
Dept.: 2
17 Judge: Hon. Marie S. Weiner
18 BJJF, LLC,
19 Plaintiffs,
20 v.
21 SAFARI KID, INC., SS & AR, LLC, SUDHIR
MATHUR, SHANU MATHUR, and DOES I
22
through V, inclusive
23
Defendants
24
25 Plaintiffs SS and AR, LLC, a California Limited Liability Company, and Sudhir Mathur
26 and Shanu Mathur, individually and dba Safari Kid, (hereinafter collectively “SAFARI KID”)
27 filed an action against BJJF, LLC, A California Limited Liability Company (“BJJF”), is named
1
SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387
MPA in Support of Motion to Consolidate Two Related Pending Actions
1 as Defendant in Case No. 22-CIV-01362 (filed on March 30, 2022), and the roles are reversed in
2 the second action where SAFARI KID are named as Defendants in Case No. 22-UDL-00387
3 (filed on June 3, 2022) filed by BJJF as Plaintiff therein. SAFARI KID submits the following
4 memorandum of points and authorities in support of their MOTION TO CONSOLIDATE TWO
5 RELATED PENDING ACTIONS:
6 (1) Case No. 22-CIV-01362 (“Civil Action”), action by SAFARI KID as lessees alleging
7 breaches of contract and duties of accounting, seeking specific performance and declaratory
8 relief and damages as against the lessor BJJF, arising out of a commercial lease agreement
9 wherein it is alleged that not only are lessees entitled to have their lease payments accepted, but
10 that they were never delinquent due to a modification agreement entered into between the
11 parties as a result of the pandemic, and that certain “notices of default” were without merit and
12 pretextual in nature as the lessor sought to revise the long-term lease agreement in order to
13 have the ability to terminate lessees’ occupancy upon six months’ notice; and
14 (2) Case No. 22-UDL-00387 (“UD Action”), action by BJJF as lessor alleging a right to evict
15 SAFARI KID based upon a written 30 day “notice of default” claiming alleged delinquent
16 payments (more than ten days late) during the pandemic (which is contested). It is important to
17 note that the “30 day notice to quit” attached as an exhibit to the Complaint in the UD Action
18 does not seek money, only possession for alleged failure to timely pay lease payments on at
19 least three separate occasions during the pandemic purportedly supporting a claim of forfeiture
20 of the lease even though the lease has been paid current (overpaid, in fact, given that SAFARI
21 KID tendered payment under protest of $127,698.00 to BJJF, who acknowledged receipt) – all
22 of which controversy gave rise to the filing of the Civil Action by Plaintiffs SAFARI KID to
23 avoid allowing BJJF to extract a forfeiture of the lease.
24 SAFARI KID offers to stipulate to an order for preference on the trial calendar for the
25 consolidated action, and further offers to stipulate that the lessor BJJF can cash the check
26 provided for payment of the June rent (and subsequent rents) without prejudice to any of their
27 rights to continue with the consolidated litigation.
2
SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387
MPA in Support of Motion to Consolidate Two Related Pending Actions
1 I. Statutory Framework
2 Unlawful detainer actions have been afforded their own set of statutory procedures
3 intended to allow for prompt recover of real property. (Superior Motels, Inc. v. Rinn Motor
4 Hotels, Inc. (1987) 195 Cal.App.3d 1032, 1066-1067: "[u]nlawful detainer is a statutory remedy
5 whose primary feature is its expedited procedure for the recovery of possession of real property
6 wrongfully withheld or "detained.")
7 Claims and defenses are inappropriate in an unlawful detainer action even where they
8 "arise out of the subject matter" of the original suit, unless they relate to the "narrow issue of
9 possession." (Underwood v. Corsino (2005) 133 Cal.App.4th 132, 135.)
10 In the present case, possession is the central issue in both actions – and the dispute over
11 whether or not possession should be allowed to continue revolves around the “rent reduction and
12 deferral agreement” between the parties. SAFARI KID in the Civil Action seeks to enforce the
13 agreements of the parties and retain possession (specific performance) of the long-term
14 commercial lease premises, and BJJF seeks to reject any claimed rent reduction and deferral
15 agreement and secure an immediate forfeiture of the long-term commercial lease and thereby
16 obtain possession (unlawful detainer). No money is sought in the 30 day notice; the only money
17 referenced in the 30 day notice attached to the UD Action was allegedly untimely payments;
18 however in the Civil Action, SAFARI KID asserts that all money was timely paid due to a rent
19 reduction agreement, and that the disputed amount of $127,698.00 was paid under protest.
20 Consequently, there would be no prejudice to BJJF if the matters were consolidated.
21 Even if both cases were about money, Code of Civil Procedure section 1161.1,
22 subdivision (a) provides that possession may still be retained if payment can be made – even
23 following judgment – providing as follows:
24 “[I]n cases of possession of commercial real property after default in the
payment of rent:
25 (a) If the amount stated in the notice provided to the tenant pursuant to
subdivision (2) of Section 1161 is clearly identified by the notice as an estimate
26 and the amount claimed is not in fact correct, but it is determined upon the trial or
other judicial determination that rent was owing, and the amount claimed in the
27 notice was reasonably estimated, the tenant shall be subject to judgment for
possession and the actual amount of rent and other sums found to be due.
3
SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387
MPA in Support of Motion to Consolidate Two Related Pending Actions
1 However, if (1) upon receipt of such a notice claiming an amount identified by the
notice as an estimate, the tenant tenders to the landlord within the time for
2 payment required by the notice, the amount which the tenant has reasonably
estimated to be due and (2) if at trial it is determined that the amount of rent then
3 due was the amount tendered by the tenant or a lesser amount, the tenant shall be
deemed the prevailing party for all purposes. If the court determines that the
4 amount so tendered by the tenant was less than the amount due, but was
reasonably estimated, the tenant shall retain the right to possession if the tenant
5 pays to the landlord within five days of the effective date of the judgment (1) the
amount previously tendered if it had not been previously accepted, (2) the
6 difference between the amount tendered and the amount determined by the court
to be due, and (3) any other sums as ordered by the court.”
7
8 In the present action, payment has already been timely paid, as confirmed in the
9 accompanying declaration of Sidhur Mathur.
10 II. NATURE OF THE ACTION AND FACTS
11 As set forth in the declarations of Sudhir Mathur and Harry I. Price, submitted herewith,
12 and demonstrated by a review of the two Complaints on file in the above-entitled actions,
13 Plaintiffs SAFARI KID seek consolidation in that there are exigent reasons why an order to
14 consolidate the two actions is appropriate and necessary, including the following:
15 1. As a review of the pleadings on file in the both of the two above-entitled actions discloses
16 (see Request for Judicial Notice, filed herewith), the dispute surrounds possessory interests
17 and financial rights and responsibilities in a commercial lease for real property located in the
18 city of San Mateo, County of San Mateo, commonly known as 521 E. Fifth Avenue, San
19 Mateo, CA 94402, APN 034-186-090 (hereinafter the “Property”). Plaintiffs SAFARI KID,
20 as lessee, operates a pre-school and day care center in the premises owned by BJJF, as lessor.
21 2. As set forth in the accompanying declaration of Sudhir Mathur filed herewith, SAFARI
22 KID is current on all payment obligations under the lease, as a result of a “rent reduction and
23 deferral agreement” between the parties and the payment under protest of the disputed
24 amount of $127,698.00 that was tendered by SAFARI KID to BJJF;
25 3. While there is a financial standoff between the two parties, they both revolve around
26 possession and the “rent reduction and deferral agreement” between the parties. As set forth
27 in the same declaration of Mr. Mathur, all monthly payment obligations were paid on time by
4
SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387
MPA in Support of Motion to Consolidate Two Related Pending Actions
1 SAFARI KID, thereby negating the contents of the 30 day notice to quit that purport to
2 support the UD Action;
3 4. The two lawsuits referred to above include all necessary parties whose financial interests
4 will be impacted by any court decision. There are no other parties to be involved;
5 5. As a review of the pleadings on file in the first of the two above-entitled actions
6 discloses, the Complaint in the Civil Action was filed on March 30, 2022 by Plaintiffs
7 SAFARI KID as against only one company, Defendant BJJF, in Case No. 22-CIV-01362.
8 6. The substantive allegations of the Complaint in the Civil Action are as follows:
9 a) Defendant BJJF is the lessor of commercial real property upon which SAFARI KID,
10 as lessee, has a lease for purpose of owning and operating a pre-school and toddler care
11 facility (¶¶ 1, 2);
12 b) that SAFARI KID entered into a written commercial lease agreement for a ten year
13 term, and expended a large amount of money in reliance upon said lease agreement for
14 tenant improvements and furnishing and funding the business operations, and was
15 thereafter impacted by the COVID-19 pandemic (¶¶ 5, 6);
16 c) that a rental reduction agreement modifying the lease agreement was entered into in
17 writing between the parties; that reduced lease payments of only $20K/month were to be paid
18 “until things get back to normal;” and that, thereafter, commencing October 2021, SAFARI
19 KID returned to paying the pre-COVID lease rate amount of $24,317.00 per month (¶¶ 7, 8);
20 d) BJJF then sought to renegotiate the entire lease agreement, requiring a much shorter
21 term of entitling BJJF to terminate upon six months’ notice; that SAFARI KID refused, and
22 thereafter paid all claimed money due under protest (payment of $127,698.00 was delivered
23 to BJJF as lessor), receipt of which was acknowledged by BJJF (¶¶ 9, 10, 11, 16, 18-20);
24 e) That thereafter, as a pretext, BJJF claimed that there had been breaches of the lease
25 agreement by SAFARI KID entitling BJJF to issue two separate and different notices to
26 quit to SAFARI KID (¶¶ 12-15) [emphasis added; only one of those two notices is the
27 subject of the UD Action]; and
5
SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387
MPA in Support of Motion to Consolidate Two Related Pending Actions
1 f) As a result of the actions of BJJF as lessor, Plaintiff seeks relief in the form of
2 specific performance for the breach of contract (¶¶ 19-20) in order to retain possession of
3 the premises, damages for breach of contract (¶¶ 23-25), declaratory relief (¶¶ 28-32); and
4 an accounting (¶¶ 35-36).
5 7. The substantive allegations of the Complaint filed by BJJF in the UD Action are as follows:
6 a) BJJF attaches a 30 day notice to quit, together with a copy of the original lease
7 agreement, asserting that SAFARI KID was “late” in payment for than three times, the
8 purported “trigger” for disallowing continuing possession and occupancy by SAFARI KID;
9 b) While no mention is made of the “rent reduction and deferral agreement” between the
10 parties, it is apparent that BJJF only wants to rely upon the original lease agreement, and
11 not any modification thereto;
12 c) There is no claim by BJJF that any money due for lease payments is unpaid or that
13 there had been any prior “notices of delinquency” or default by BJJF – only that the 30 day
14 notice to quit is appropriate (even though the time period in question was during both the
15 pandemic and the period of the “rent reduction and deferral agreement”); and
16 d) BJJF seeks forfeiture of the balance of the original long term lease, and possession.
17 8. While there is an additional claim for an accounting in the Civil Action (due to
18 unexplained anomalies in the accounting statement provided by BJJF in April 2022
19 compared to their NNN statement of Sept 2019. There is contradiction in the accounting
20 statement compared to the account reconciliation statement sent by SAFARI KID and
21 confirmed by BJJF in Oct 2019, per Mathur’s declaration), that is a modest accounting
22 controversy that BJJF’s own records confirm had previously been reconciled;
23 9. Consequently, the substantive allegations of both actions revolve around rights to
24 possession arising from any modifications to the original lease agreement. All of the parties
25 in both actions are the same, and include all of the necessary and affected parties;
26 10. Consequently, consolidation is proper. As set forth in the accompanying declaration of
27 Harry I. Price filed herewith, in each of the two actions the parties that will be financially
6
SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387
MPA in Support of Motion to Consolidate Two Related Pending Actions
1 impacted by the resolution of the claims are entitled to a comprehensive resolution rather
2 than a requirement to participate in piecemeal litigation, so consolidation is required in order
3 to achieve a comprehensive resolution without a multiplicity of lawsuits;
4 11. Finally, as set forth in the declaration of Harry I. Price filed herewith, consolidation of
5 the two above-referenced lawsuits is necessary and appropriate for the following reasons:
6 a. The allegations and complaints arise out of the same facts and circumstances
7 concerning occupancy and possession of a commercial premises, where both of said
8 actions share a common question of fact (the impact of the “rent reduction and
9 deferral agreement” between the parties) or law;
10 b. Consolidation will promote the ends of justice taking into account whether the
11 common question of fact or law is predominating and significant to the litigation;
12 c. The convenience of parties, witnesses, and counsel;
13 d. the relative development of the actions and the work product of counsel;
14 e. the efficient utilization of judicial facilities and manpower;
15 f. the calendar of the courts; and
16 g. the disadvantages of duplicative and inconsistent rulings, orders, or judgments.
17 In short, consolidation will promote judicial economy, so that the parties would avoid a
18 multiplicity of lawsuits arising out of the same facts and circumstances. Counsel for SAFARI
19 KID had previously requested that BJJF not file any eviction action, but BJJF has refused,
20 without explanation.
21 III. ARGUMENT
22 A. CONSOLIDATION IS APPROPRIATE WHERE THE ALLEGATIONS AND
COMPLAINTS ARISE OUT OF THE SAME FACTS AND
23
CIRCUMSTANCES PURSUANT TO CCP §§ 403 AND 1048.
24
Code of Civil Procedure Section 1048 sets forth the statutory framework for
25
consolidation of pending actions, providing as follows:
26
§ 1048. Consolidation of actions; separate trial of any cause of action, or
27 of any separate issues, or causes of action or issues
7
SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387
MPA in Support of Motion to Consolidate Two Related Pending Actions
1
(a) When actions involving a common question of law or fact are pending
2 before the court, it may order a joint hearing or trial of any or all the
matters in issue in the actions; it may order all the actions consolidated
3
and it may make such orders concerning proceedings therein as may tend
4 to avoid unnecessary costs or delay.
(b) The court, in furtherance of convenience or to avoid prejudice, or
5 when separate trials will be conducive to expedition and economy, may
order a separate trial of any cause of action, including a cause of action
6 asserted in a cross-complaint, or of any separate issue or of any number of
causes of action or issues, preserving the right of trial by jury required by
7
the Constitution or a statute of this state or of the United States.
8
Motions to consolidate are, in turn, governed by Code of Civil Procedure Section 403
9
which states as follows:
10
§ 403. Transfer motion; coordination of actions; notice; consolidation; rules
11
A judge may, on motion, transfer an action or actions from another court
12 to that judge's court for coordination with an action involving a common
13 question of fact or law within the meaning of Section 404. The motion
shall be supported by a declaration stating facts showing that the actions
14 meet the standards specified in Section 404.1, are not complex as defined
by the Judicial Council and that the moving party has made a good faith
15 effort to obtain agreement to the transfer from all parties to each action.
Notice of the motion shall be served on all parties to each action and on
16 each court in which an action is pending. Any party to that action may
17 file papers opposing the motion within the time permitted by rule of the
Judicial Council. The court to which a case is transferred may order the
18 cases consolidated for trial pursuant to Section 1048 without any further
motion or hearing.
19
The Judicial Council may adopt rules to implement this section, including
20 rules prescribing procedures for preventing duplicative or conflicting
transfer orders issued by different courts.
21
22 Finally, the standards referenced in Code of Civil Procedure Section 403 are found in
23 Code of Civil Procedure Section 404.1, which states as follows:
24 § 404.1. Promotion of ends of justice; standards
25 Coordination of civil actions sharing a common question of fact or law is
appropriate if one judge hearing all of the actions for all purposes in a
26 selected site or sites will promote the ends of justice taking into account
27 whether the common question of fact or law is predominating and
significant to the litigation; the convenience of parties, witnesses, and
8
SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387
MPA in Support of Motion to Consolidate Two Related Pending Actions
1 counsel; the relative development of the actions and the work product of
counsel; the efficient utilization of judicial facilities and manpower; the
2 calendar of the courts; the disadvantages of duplicative and inconsistent
rulings, orders, or judgments; and, the likelihood of settlement of the
3
actions without further litigation should coordination be denied.
4
B. CONSOLIDATION WILL PROMOTE THE ENDS OF JUSTICE, THE
5 CONVENIENCE OF PARTIES, WITNESSES, AND COUNSEL, AND
JUDICIAL ECONOMY, WHILE AVOIDING INCONSISTENT RULINGS
6
7 SAFARI KID, through the papers and declarations filed herewith and based upon the
8 allegations of the Complaints in the two above-referenced actions, are constrained to file the
9 motion to consolidate because BJJF has rejected the request to not file an eviction action while
10 the Civil Action was pending, and now objects to stipulate to consolidation. Unless
11 consolidation is allowed, the valuable financial rights of the parties as Lessor (BJJF) and as
12 Lessee (SAFARI KID) in the lease, occupancy, management and operation of the commercially
13 leased premises, which are unique, may be impaired. Conflicting rulings could arise – for
14 instance, arguendo, SAFARI KID could prevail in the UD Action, but thereafter, BJJF would
15 claim that it is not res judicata, so a second trial could occur in the Civil Action reaching a
16 different result, which has the potential to cause financial hardship to one of the parties.
17 Good cause exists for authorizing the consolidation of the two actions for the reasons
18 noted above, including the following reasons:
19 1. The allegations arise out of the same facts and circumstances involving the same parties;
20 2. Consolidation will promote the ends of justice taking into account whether the common
21 question of fact or law is predominating and significant to the litigation – consolidation will
22 insure that all properties and all property owners are before the same court in the same forum,
23 and that all issues are addressed and resolved in a comprehensive manner;
24 3. The convenience of parties, witnesses, and counsel – if there are two actions, there will
25 be a duplication of every single witness at trial;
26 4. the relative development of the actions and the work product of counsel – both actions
27 are at their inception, no discovery has taken place in either action, and no trial setting has
9
SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387
MPA in Support of Motion to Consolidate Two Related Pending Actions
1 taken place in either action;
2 5. the efficient utilization of judicial resources; consolidation will promote judicial economy;
3 6. the calendar of the courts – neither action is currently set for trial; and
4 7. the disadvantages of duplicative and inconsistent rulings, orders, or judgments – it is
5 theoretically possible that two lawsuit trials will result in inconsistent rulings, which in turn
6 will only sow greater confusion between the parties.
7 In short, BJJF should not be allowed to participate in the gamesmanship of going forward
8 with the UD Action in an attempt to “divide and conquer” SAFARI KID by requiring separate
9 actions. SAFARI KID seeks to expedite the litigation by consolidating the two actions that
10 impact the lease, possession and occupancy of the commercial premises in a comprehensive
11 action, so as to avoid a multiplicity of actions.
12 C. NO PARTIES WILL BE PREJUDICED BY AN ORDER AUTHORIZING THE
CONSOLIDATION OF ACTIONS
13
No prejudice will be suffered by any party as a result of authorizing the consolidation of
14
the two actions. Just the opposite – prejudice may occur if the two actions are not consolidated
15
in one venue, for conflicting rulings potentially could result, as discussed above.
16
IV. CONCLUSION
17
18 In order to avoid a multiplicity of actions, SAFARI KID respectfully requests that the
19 Court issue an order authorizing consolidation of the two actions. Such an order will not cause
20 any harm or hardship to any party as BJJF has been paid current; rather, it will enable the court
21 to have all properties and all parties before the court so that litigation can be expeditiously
22 resolved. While BJJF’s claims are without merit, even if they were to have merit, they only
23 merit one action, not multiple actions.
24 Dated: June 14, 2022 Respectfully submitted,
25 PRICE LAW FIRM
26 By: /s/ Harry I. Price
Harry I. Price, Esq.
27 Attorneys for Plaintiffs SAFARI KID
10
SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387
MPA in Support of Motion to Consolidate Two Related Pending Actions
Preview
1 Harry I. Price, Esq., Bar No. 077817 Price Law Firm 2 40 Main Street Los Altos, CA 94022 3 Phone: (650) 949-0840 Fax: (650) 949-0844 4 Email: harry@priceslaw.com 5 Attorneys for Plaintiffs SAFARI KID 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF SAN MATEO 9 10 SS and AR, LLC, a California Limited Liability Case No. 22-CIV-01362 Company, and Sudhir Mathur and Shanu Mathur, Case No. 22-UDL-00387 11 individually and dba Safari Kid, MEMORANDUM OF POINTS AND 12 Plaintiffs, AUTHORITIES IN SUPPORT OF MOTION TO CONSOLIDATE TWO 13 v. RELATED PENDING ACTIONS [CCP §§ 403, 1048] 14 BJJF, LLC, a California Limited Liability Company, and DOES 1 through 10, inclusive, Date: August 3, 2022 15 Time: 2:00 p.m. 16 Defendants. Dept.: 2 17 Judge: Hon. Marie S. Weiner 18 BJJF, LLC, 19 Plaintiffs, 20 v. 21 SAFARI KID, INC., SS & AR, LLC, SUDHIR MATHUR, SHANU MATHUR, and DOES I 22 through V, inclusive 23 Defendants 24 25 Plaintiffs SS and AR, LLC, a California Limited Liability Company, and Sudhir Mathur 26 and Shanu Mathur, individually and dba Safari Kid, (hereinafter collectively “SAFARI KID”) 27 filed an action against BJJF, LLC, A California Limited Liability Company (“BJJF”), is named 1 SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387 MPA in Support of Motion to Consolidate Two Related Pending Actions 1 as Defendant in Case No. 22-CIV-01362 (filed on March 30, 2022), and the roles are reversed in 2 the second action where SAFARI KID are named as Defendants in Case No. 22-UDL-00387 3 (filed on June 3, 2022) filed by BJJF as Plaintiff therein. SAFARI KID submits the following 4 memorandum of points and authorities in support of their MOTION TO CONSOLIDATE TWO 5 RELATED PENDING ACTIONS: 6 (1) Case No. 22-CIV-01362 (“Civil Action”), action by SAFARI KID as lessees alleging 7 breaches of contract and duties of accounting, seeking specific performance and declaratory 8 relief and damages as against the lessor BJJF, arising out of a commercial lease agreement 9 wherein it is alleged that not only are lessees entitled to have their lease payments accepted, but 10 that they were never delinquent due to a modification agreement entered into between the 11 parties as a result of the pandemic, and that certain “notices of default” were without merit and 12 pretextual in nature as the lessor sought to revise the long-term lease agreement in order to 13 have the ability to terminate lessees’ occupancy upon six months’ notice; and 14 (2) Case No. 22-UDL-00387 (“UD Action”), action by BJJF as lessor alleging a right to evict 15 SAFARI KID based upon a written 30 day “notice of default” claiming alleged delinquent 16 payments (more than ten days late) during the pandemic (which is contested). It is important to 17 note that the “30 day notice to quit” attached as an exhibit to the Complaint in the UD Action 18 does not seek money, only possession for alleged failure to timely pay lease payments on at 19 least three separate occasions during the pandemic purportedly supporting a claim of forfeiture 20 of the lease even though the lease has been paid current (overpaid, in fact, given that SAFARI 21 KID tendered payment under protest of $127,698.00 to BJJF, who acknowledged receipt) – all 22 of which controversy gave rise to the filing of the Civil Action by Plaintiffs SAFARI KID to 23 avoid allowing BJJF to extract a forfeiture of the lease. 24 SAFARI KID offers to stipulate to an order for preference on the trial calendar for the 25 consolidated action, and further offers to stipulate that the lessor BJJF can cash the check 26 provided for payment of the June rent (and subsequent rents) without prejudice to any of their 27 rights to continue with the consolidated litigation. 2 SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387 MPA in Support of Motion to Consolidate Two Related Pending Actions 1 I. Statutory Framework 2 Unlawful detainer actions have been afforded their own set of statutory procedures 3 intended to allow for prompt recover of real property. (Superior Motels, Inc. v. Rinn Motor 4 Hotels, Inc. (1987) 195 Cal.App.3d 1032, 1066-1067: "[u]nlawful detainer is a statutory remedy 5 whose primary feature is its expedited procedure for the recovery of possession of real property 6 wrongfully withheld or "detained.") 7 Claims and defenses are inappropriate in an unlawful detainer action even where they 8 "arise out of the subject matter" of the original suit, unless they relate to the "narrow issue of 9 possession." (Underwood v. Corsino (2005) 133 Cal.App.4th 132, 135.) 10 In the present case, possession is the central issue in both actions – and the dispute over 11 whether or not possession should be allowed to continue revolves around the “rent reduction and 12 deferral agreement” between the parties. SAFARI KID in the Civil Action seeks to enforce the 13 agreements of the parties and retain possession (specific performance) of the long-term 14 commercial lease premises, and BJJF seeks to reject any claimed rent reduction and deferral 15 agreement and secure an immediate forfeiture of the long-term commercial lease and thereby 16 obtain possession (unlawful detainer). No money is sought in the 30 day notice; the only money 17 referenced in the 30 day notice attached to the UD Action was allegedly untimely payments; 18 however in the Civil Action, SAFARI KID asserts that all money was timely paid due to a rent 19 reduction agreement, and that the disputed amount of $127,698.00 was paid under protest. 20 Consequently, there would be no prejudice to BJJF if the matters were consolidated. 21 Even if both cases were about money, Code of Civil Procedure section 1161.1, 22 subdivision (a) provides that possession may still be retained if payment can be made – even 23 following judgment – providing as follows: 24 “[I]n cases of possession of commercial real property after default in the payment of rent: 25 (a) If the amount stated in the notice provided to the tenant pursuant to subdivision (2) of Section 1161 is clearly identified by the notice as an estimate 26 and the amount claimed is not in fact correct, but it is determined upon the trial or other judicial determination that rent was owing, and the amount claimed in the 27 notice was reasonably estimated, the tenant shall be subject to judgment for possession and the actual amount of rent and other sums found to be due. 3 SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387 MPA in Support of Motion to Consolidate Two Related Pending Actions 1 However, if (1) upon receipt of such a notice claiming an amount identified by the notice as an estimate, the tenant tenders to the landlord within the time for 2 payment required by the notice, the amount which the tenant has reasonably estimated to be due and (2) if at trial it is determined that the amount of rent then 3 due was the amount tendered by the tenant or a lesser amount, the tenant shall be deemed the prevailing party for all purposes. If the court determines that the 4 amount so tendered by the tenant was less than the amount due, but was reasonably estimated, the tenant shall retain the right to possession if the tenant 5 pays to the landlord within five days of the effective date of the judgment (1) the amount previously tendered if it had not been previously accepted, (2) the 6 difference between the amount tendered and the amount determined by the court to be due, and (3) any other sums as ordered by the court.” 7 8 In the present action, payment has already been timely paid, as confirmed in the 9 accompanying declaration of Sidhur Mathur. 10 II. NATURE OF THE ACTION AND FACTS 11 As set forth in the declarations of Sudhir Mathur and Harry I. Price, submitted herewith, 12 and demonstrated by a review of the two Complaints on file in the above-entitled actions, 13 Plaintiffs SAFARI KID seek consolidation in that there are exigent reasons why an order to 14 consolidate the two actions is appropriate and necessary, including the following: 15 1. As a review of the pleadings on file in the both of the two above-entitled actions discloses 16 (see Request for Judicial Notice, filed herewith), the dispute surrounds possessory interests 17 and financial rights and responsibilities in a commercial lease for real property located in the 18 city of San Mateo, County of San Mateo, commonly known as 521 E. Fifth Avenue, San 19 Mateo, CA 94402, APN 034-186-090 (hereinafter the “Property”). Plaintiffs SAFARI KID, 20 as lessee, operates a pre-school and day care center in the premises owned by BJJF, as lessor. 21 2. As set forth in the accompanying declaration of Sudhir Mathur filed herewith, SAFARI 22 KID is current on all payment obligations under the lease, as a result of a “rent reduction and 23 deferral agreement” between the parties and the payment under protest of the disputed 24 amount of $127,698.00 that was tendered by SAFARI KID to BJJF; 25 3. While there is a financial standoff between the two parties, they both revolve around 26 possession and the “rent reduction and deferral agreement” between the parties. As set forth 27 in the same declaration of Mr. Mathur, all monthly payment obligations were paid on time by 4 SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387 MPA in Support of Motion to Consolidate Two Related Pending Actions 1 SAFARI KID, thereby negating the contents of the 30 day notice to quit that purport to 2 support the UD Action; 3 4. The two lawsuits referred to above include all necessary parties whose financial interests 4 will be impacted by any court decision. There are no other parties to be involved; 5 5. As a review of the pleadings on file in the first of the two above-entitled actions 6 discloses, the Complaint in the Civil Action was filed on March 30, 2022 by Plaintiffs 7 SAFARI KID as against only one company, Defendant BJJF, in Case No. 22-CIV-01362. 8 6. The substantive allegations of the Complaint in the Civil Action are as follows: 9 a) Defendant BJJF is the lessor of commercial real property upon which SAFARI KID, 10 as lessee, has a lease for purpose of owning and operating a pre-school and toddler care 11 facility (¶¶ 1, 2); 12 b) that SAFARI KID entered into a written commercial lease agreement for a ten year 13 term, and expended a large amount of money in reliance upon said lease agreement for 14 tenant improvements and furnishing and funding the business operations, and was 15 thereafter impacted by the COVID-19 pandemic (¶¶ 5, 6); 16 c) that a rental reduction agreement modifying the lease agreement was entered into in 17 writing between the parties; that reduced lease payments of only $20K/month were to be paid 18 “until things get back to normal;” and that, thereafter, commencing October 2021, SAFARI 19 KID returned to paying the pre-COVID lease rate amount of $24,317.00 per month (¶¶ 7, 8); 20 d) BJJF then sought to renegotiate the entire lease agreement, requiring a much shorter 21 term of entitling BJJF to terminate upon six months’ notice; that SAFARI KID refused, and 22 thereafter paid all claimed money due under protest (payment of $127,698.00 was delivered 23 to BJJF as lessor), receipt of which was acknowledged by BJJF (¶¶ 9, 10, 11, 16, 18-20); 24 e) That thereafter, as a pretext, BJJF claimed that there had been breaches of the lease 25 agreement by SAFARI KID entitling BJJF to issue two separate and different notices to 26 quit to SAFARI KID (¶¶ 12-15) [emphasis added; only one of those two notices is the 27 subject of the UD Action]; and 5 SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387 MPA in Support of Motion to Consolidate Two Related Pending Actions 1 f) As a result of the actions of BJJF as lessor, Plaintiff seeks relief in the form of 2 specific performance for the breach of contract (¶¶ 19-20) in order to retain possession of 3 the premises, damages for breach of contract (¶¶ 23-25), declaratory relief (¶¶ 28-32); and 4 an accounting (¶¶ 35-36). 5 7. The substantive allegations of the Complaint filed by BJJF in the UD Action are as follows: 6 a) BJJF attaches a 30 day notice to quit, together with a copy of the original lease 7 agreement, asserting that SAFARI KID was “late” in payment for than three times, the 8 purported “trigger” for disallowing continuing possession and occupancy by SAFARI KID; 9 b) While no mention is made of the “rent reduction and deferral agreement” between the 10 parties, it is apparent that BJJF only wants to rely upon the original lease agreement, and 11 not any modification thereto; 12 c) There is no claim by BJJF that any money due for lease payments is unpaid or that 13 there had been any prior “notices of delinquency” or default by BJJF – only that the 30 day 14 notice to quit is appropriate (even though the time period in question was during both the 15 pandemic and the period of the “rent reduction and deferral agreement”); and 16 d) BJJF seeks forfeiture of the balance of the original long term lease, and possession. 17 8. While there is an additional claim for an accounting in the Civil Action (due to 18 unexplained anomalies in the accounting statement provided by BJJF in April 2022 19 compared to their NNN statement of Sept 2019. There is contradiction in the accounting 20 statement compared to the account reconciliation statement sent by SAFARI KID and 21 confirmed by BJJF in Oct 2019, per Mathur’s declaration), that is a modest accounting 22 controversy that BJJF’s own records confirm had previously been reconciled; 23 9. Consequently, the substantive allegations of both actions revolve around rights to 24 possession arising from any modifications to the original lease agreement. All of the parties 25 in both actions are the same, and include all of the necessary and affected parties; 26 10. Consequently, consolidation is proper. As set forth in the accompanying declaration of 27 Harry I. Price filed herewith, in each of the two actions the parties that will be financially 6 SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387 MPA in Support of Motion to Consolidate Two Related Pending Actions 1 impacted by the resolution of the claims are entitled to a comprehensive resolution rather 2 than a requirement to participate in piecemeal litigation, so consolidation is required in order 3 to achieve a comprehensive resolution without a multiplicity of lawsuits; 4 11. Finally, as set forth in the declaration of Harry I. Price filed herewith, consolidation of 5 the two above-referenced lawsuits is necessary and appropriate for the following reasons: 6 a. The allegations and complaints arise out of the same facts and circumstances 7 concerning occupancy and possession of a commercial premises, where both of said 8 actions share a common question of fact (the impact of the “rent reduction and 9 deferral agreement” between the parties) or law; 10 b. Consolidation will promote the ends of justice taking into account whether the 11 common question of fact or law is predominating and significant to the litigation; 12 c. The convenience of parties, witnesses, and counsel; 13 d. the relative development of the actions and the work product of counsel; 14 e. the efficient utilization of judicial facilities and manpower; 15 f. the calendar of the courts; and 16 g. the disadvantages of duplicative and inconsistent rulings, orders, or judgments. 17 In short, consolidation will promote judicial economy, so that the parties would avoid a 18 multiplicity of lawsuits arising out of the same facts and circumstances. Counsel for SAFARI 19 KID had previously requested that BJJF not file any eviction action, but BJJF has refused, 20 without explanation. 21 III. ARGUMENT 22 A. CONSOLIDATION IS APPROPRIATE WHERE THE ALLEGATIONS AND COMPLAINTS ARISE OUT OF THE SAME FACTS AND 23 CIRCUMSTANCES PURSUANT TO CCP §§ 403 AND 1048. 24 Code of Civil Procedure Section 1048 sets forth the statutory framework for 25 consolidation of pending actions, providing as follows: 26 § 1048. Consolidation of actions; separate trial of any cause of action, or 27 of any separate issues, or causes of action or issues 7 SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387 MPA in Support of Motion to Consolidate Two Related Pending Actions 1 (a) When actions involving a common question of law or fact are pending 2 before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated 3 and it may make such orders concerning proceedings therein as may tend 4 to avoid unnecessary costs or delay. (b) The court, in furtherance of convenience or to avoid prejudice, or 5 when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action 6 asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by 7 the Constitution or a statute of this state or of the United States. 8 Motions to consolidate are, in turn, governed by Code of Civil Procedure Section 403 9 which states as follows: 10 § 403. Transfer motion; coordination of actions; notice; consolidation; rules 11 A judge may, on motion, transfer an action or actions from another court 12 to that judge's court for coordination with an action involving a common 13 question of fact or law within the meaning of Section 404. The motion shall be supported by a declaration stating facts showing that the actions 14 meet the standards specified in Section 404.1, are not complex as defined by the Judicial Council and that the moving party has made a good faith 15 effort to obtain agreement to the transfer from all parties to each action. Notice of the motion shall be served on all parties to each action and on 16 each court in which an action is pending. Any party to that action may 17 file papers opposing the motion within the time permitted by rule of the Judicial Council. The court to which a case is transferred may order the 18 cases consolidated for trial pursuant to Section 1048 without any further motion or hearing. 19 The Judicial Council may adopt rules to implement this section, including 20 rules prescribing procedures for preventing duplicative or conflicting transfer orders issued by different courts. 21 22 Finally, the standards referenced in Code of Civil Procedure Section 403 are found in 23 Code of Civil Procedure Section 404.1, which states as follows: 24 § 404.1. Promotion of ends of justice; standards 25 Coordination of civil actions sharing a common question of fact or law is appropriate if one judge hearing all of the actions for all purposes in a 26 selected site or sites will promote the ends of justice taking into account 27 whether the common question of fact or law is predominating and significant to the litigation; the convenience of parties, witnesses, and 8 SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387 MPA in Support of Motion to Consolidate Two Related Pending Actions 1 counsel; the relative development of the actions and the work product of counsel; the efficient utilization of judicial facilities and manpower; the 2 calendar of the courts; the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and, the likelihood of settlement of the 3 actions without further litigation should coordination be denied. 4 B. CONSOLIDATION WILL PROMOTE THE ENDS OF JUSTICE, THE 5 CONVENIENCE OF PARTIES, WITNESSES, AND COUNSEL, AND JUDICIAL ECONOMY, WHILE AVOIDING INCONSISTENT RULINGS 6 7 SAFARI KID, through the papers and declarations filed herewith and based upon the 8 allegations of the Complaints in the two above-referenced actions, are constrained to file the 9 motion to consolidate because BJJF has rejected the request to not file an eviction action while 10 the Civil Action was pending, and now objects to stipulate to consolidation. Unless 11 consolidation is allowed, the valuable financial rights of the parties as Lessor (BJJF) and as 12 Lessee (SAFARI KID) in the lease, occupancy, management and operation of the commercially 13 leased premises, which are unique, may be impaired. Conflicting rulings could arise – for 14 instance, arguendo, SAFARI KID could prevail in the UD Action, but thereafter, BJJF would 15 claim that it is not res judicata, so a second trial could occur in the Civil Action reaching a 16 different result, which has the potential to cause financial hardship to one of the parties. 17 Good cause exists for authorizing the consolidation of the two actions for the reasons 18 noted above, including the following reasons: 19 1. The allegations arise out of the same facts and circumstances involving the same parties; 20 2. Consolidation will promote the ends of justice taking into account whether the common 21 question of fact or law is predominating and significant to the litigation – consolidation will 22 insure that all properties and all property owners are before the same court in the same forum, 23 and that all issues are addressed and resolved in a comprehensive manner; 24 3. The convenience of parties, witnesses, and counsel – if there are two actions, there will 25 be a duplication of every single witness at trial; 26 4. the relative development of the actions and the work product of counsel – both actions 27 are at their inception, no discovery has taken place in either action, and no trial setting has 9 SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387 MPA in Support of Motion to Consolidate Two Related Pending Actions 1 taken place in either action; 2 5. the efficient utilization of judicial resources; consolidation will promote judicial economy; 3 6. the calendar of the courts – neither action is currently set for trial; and 4 7. the disadvantages of duplicative and inconsistent rulings, orders, or judgments – it is 5 theoretically possible that two lawsuit trials will result in inconsistent rulings, which in turn 6 will only sow greater confusion between the parties. 7 In short, BJJF should not be allowed to participate in the gamesmanship of going forward 8 with the UD Action in an attempt to “divide and conquer” SAFARI KID by requiring separate 9 actions. SAFARI KID seeks to expedite the litigation by consolidating the two actions that 10 impact the lease, possession and occupancy of the commercial premises in a comprehensive 11 action, so as to avoid a multiplicity of actions. 12 C. NO PARTIES WILL BE PREJUDICED BY AN ORDER AUTHORIZING THE CONSOLIDATION OF ACTIONS 13 No prejudice will be suffered by any party as a result of authorizing the consolidation of 14 the two actions. Just the opposite – prejudice may occur if the two actions are not consolidated 15 in one venue, for conflicting rulings potentially could result, as discussed above. 16 IV. CONCLUSION 17 18 In order to avoid a multiplicity of actions, SAFARI KID respectfully requests that the 19 Court issue an order authorizing consolidation of the two actions. Such an order will not cause 20 any harm or hardship to any party as BJJF has been paid current; rather, it will enable the court 21 to have all properties and all parties before the court so that litigation can be expeditiously 22 resolved. While BJJF’s claims are without merit, even if they were to have merit, they only 23 merit one action, not multiple actions. 24 Dated: June 14, 2022 Respectfully submitted, 25 PRICE LAW FIRM 26 By: /s/ Harry I. Price Harry I. Price, Esq. 27 Attorneys for Plaintiffs SAFARI KID 10 SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387 MPA in Support of Motion to Consolidate Two Related Pending Actions