Preview
6/14/2022
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,
DECLARATION OF HARRY I. PRICE IN
12 Plaintiffs, SUPPORT OF MOTION TO
CONSOLIDATE TWO RELATED
13 v. PENDING ACTIONS; and REQUEST FOR
14 BJJF, LLC, a California Limited Liability JUDICIAL NOTICE
Company, and DOES 1 through 10, inclusive, [CCP §§ 403, 1048]
15
16 Defendants. Date: August 3, 2022
Time: 2:00 p.m.
17
Dept.: 2
18 BJJF, LLC, Judge: Hon. Marie S. Weiner
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 I, Harry I. Price, declare as follows:
26 1. I am an attorney admitted to practice in the State of California and a partner with the
27 Price Law Firm, the attorneys of record for Plaintiffs SS and AR, LLC, a California Limited
1
SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387
Declaration of Harry I. Price in Support of Motion to Consolidate Two Related Pending Actions
Liability Company, and Sudhir Mathur and Shanu Mathur, individually and dba Safari Kid,
(hereinafter collectively "SAFARI KID") in the above-entitled case (Case No. 22-CIV-01362,
hereinafterthe "Civil Action"). I am familiarwith the facts containedherein, and if called as a
witness, I could testify competently thereto.
2. My clients, as commercial lessees, had received conflicting information from two sets of
attorneys for the lessor, Defendant BJJF, LLC, a California Limited Liability Company
I ("BJJF"). When my client recently received notices to quit, despite the pending Civil Action,
8, on April 25, 2022, prior to said Defendant's counsel filing any appearance, let alone the
9| pending demurrer, I reached out to both sets of attorneys inquiring as to who would be
10| representing the Defendant lessor in the above-entitled action. A copy of said email dated
Ill April 25, 2022 is attachedas Exhibit 1. Neither attorney responded at that time.
12| 3. Prior to receipt of the demurrer in the Civil Action, on Saturday May 14, 2022 I did reach
13| out to counsel, explaining my not being available during the 3 business days that encompassed
14| his notice to respond. A copy of that response, asking for an opportunity to speak to counsel, is
15| attached as Exhibit 2. I have had absolutely no response to date to my efforts at outreach.
16| 4. Since then, employing other counsel (Law Offices of Todd Rothbard), Defendant has
17| separately filed an eviction lawsuit, San Mateo County Superior Court case number 22-UDL-
181 00387 (the "UD Action") on June 3, 2022, notwithstanding the pending action in the above-
19| entitled matter (the Civil Action seeks specific performance and declaratory relief over alleged
201 breachof contract actionsby the lessor) arising out ofthe same facts and circumstances ofthe
21| lease dispute between the same parties over the same lease agreement. Plaintiffs hereby
22| request that the court take judicial notice of said eviction lawsuit Complaint filed in this court.
231 5. As a review of the pleadings on file in the both of the two above-entitled actions discloses
24| (Request for Judicial Notice), the dispute surrounds possessory interests and financial rights
251 and responsibilities in a commercial lease for real property located in the city of San Mateo,
26| County of SanMateo, commonly known as 521 E. Fifth Avenue, SanMateo, CA 94402. APN
27|
^m SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387
I LAW FIRM Declaration of Harry I. Price in Support ofMotion to Consolidate Two Related Pending Actions
034-186-090 (hereinafter the "Property"). Plaintiffs SAFARI KID, as lessee, operates a pre-
school and day care center in the premises owned by BJJF, as lessor.
6. As set forth in the accompanyingdeclaration of SudhirMathur filed herewith, SAFARI
KID is current on all payment obligationsunderthe lease, as a result ofa "rent reduction and
deferral agreement" between the parties and the payment under protest ofthe disputed amount
of $127, 698. 00 that was tendered by SAFARI KID to BJJF;
7. While there is a financial standoff between the two parties, they both revolve around
8| possession and the "rent reduction and deferral agreement" between the parties. As set forth in
Q
the same declaration ofMr. Mathur, all monthly payment obligations were paid on time by
10| SAFARI KID and are now current, thereby negating the contents ofthe 30 day notice to quit
Ill that purport to support the UD Action;
12| 8. There are no other impacted parties to be involved other than the same parties involved in
13| the two lawsuits referred to above;
14| 9. Consolidation ofthe two above-referenced lawsuits is necessary and appropriate for the
15| following reasons:
16| a. The allegations and complaints arise out ofthe same facts and circumstances
17| concerning occupancy and possessionofa commercial premises, whereboth ofsaid
18| actions share a common question of fact (the impact of the "rent reduction and
19| deferral agreement" betweenthe parties) or law;
20 [ b. Consolidation will promote the ends ofjustice taking into account whether the
21| common question of fact or law is predominating and significant to the litigation.
22| One can imaginethat if the Lesseewere behindin payments, that a Lessorwould
231 exclaim aboutthe need for a speedy eviction- but that is NOT the circumstance in
24| the present dispute. The 30 day Noticeto Quit upon whichthe UD Action is based
251 does not allege any financial arrears;
26| c. The convenience of parties, witnesses, and counsel. We have the very same parties
27| involved in both cases; and each ofthe parties would be available to testify, which
BH SAFARIKIDv. BJJF,et al ~
3
CaseNo. 22-CIV-01362;CaseNo. 22-UDL-00387
I LAW FIRM I Declaration ofHarry I. Price in Support ofMotion to Consolidate Two Related Pending Actions
testimony would be redundant in each of the two cases. While BJJF has two sets of
counsel - one for the Civil Action and one for the UD Action - consolidation would
simply mean that they would work together, as they are doing now, or, alternatively,
only one would remain;
d. the relative development of the actions and the work product of counsel. In both
cases, we are at the very beginning ofthe action, the pleading stage. While BJJFmay
7 argue that there is a demurrer and motion to strike pending in the Civil Action, both
8 ofthose matters should be resolved by the hearing on the present action. No pre-trial
911 discovery has taken place to date;
1011 e. the efficient utilization ofjudicial facilities and manpower. During this time of the
11 pandemic, when some courts are delaying hearings due to staffing concerns, judicial
1211 economy is more important than ever. Requiring two trials over the very same
1311 reduntant issues is not only not necessary, it would be an exorbitant use ofjudicial
14|| resources;
151 [ f. the calendar of the courts. I recognize that the UD Action would ordinarily be
16|| entitled to preference on the trial calendar. On behalfof SAFARI KID I hereby offer
1711 to stipulate that. once the pleadings are all "in order" andthe matter is^at issue, that an
1811 order ofpreference be issuedto expeditethe trial in this matter; and
19 g. the disadvantages ofduplicative and inconsistent rulings, orders, orjudgments.
2011 Arguendo, one can imagine that not ordering consolidation could actually result in
2111 THREEcourt proceedings, if, for instance: ifBJJFlost the UD Action; bul thereafter
2211 not only argued that it had no resjudicata impact but actually then won the Civil
2311 Action; then they would wish to turn around and file a second unlawful detainer
24 action, which would mean a third action between the same parties over the same
2511 issues.
2611 10. In short, consolidation will promote judicial economy, so that the parties would avoid a
2711 multiplicity oflawsuits arising out ofthe same facts and circumstances. Counsel for SAFARI
si
4
SAFARIKID v. BJJF,et al ~ CaseNo. 22-CIV-01362;CaseNo. 22-UDL-00387
I LAWHRM I Declaration ofHarry I. Price in Support ofMotion to Consolidate Two Related Pending Actions
KID hadpreviously requested that BJJFnot file any eviction action, but BJJFhas refused,
without explanation.
11. Additionally, in addition to offering to stipulate to an order for preference on the trial
calendar for the consolidated action, my client SAFARI KID further offers to stipulate that the
lessor BJJFcan cashthe check provided for payment ofthe June rent without prejudice to any
of their rights to continue with the consolidated litigation.
I declare under penalty ofperjury underthe laws ofthe State of Californiathat the
foregoing is true and correct and that this declaration was executed on June 14, 2022 at Los
91 Altos, California.
10| By:.
Harry^Price, Esq.s
Ill Attorneys for Plaintiffs SAFARI KID
12|
131
141
151
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17|
18|
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20|
21|
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23|
24|
251
26|
271
BE SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387
I LAW FRM Declaration of Harry I. Price in Support of Motion to Consolidate Two Related Pending Actions
Preview
6/14/2022 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, DECLARATION OF HARRY I. PRICE IN 12 Plaintiffs, SUPPORT OF MOTION TO CONSOLIDATE TWO RELATED 13 v. PENDING ACTIONS; and REQUEST FOR 14 BJJF, LLC, a California Limited Liability JUDICIAL NOTICE Company, and DOES 1 through 10, inclusive, [CCP §§ 403, 1048] 15 16 Defendants. Date: August 3, 2022 Time: 2:00 p.m. 17 Dept.: 2 18 BJJF, LLC, Judge: Hon. Marie S. Weiner 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 I, Harry I. Price, declare as follows: 26 1. I am an attorney admitted to practice in the State of California and a partner with the 27 Price Law Firm, the attorneys of record for Plaintiffs SS and AR, LLC, a California Limited 1 SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387 Declaration of Harry I. Price in Support of Motion to Consolidate Two Related Pending Actions Liability Company, and Sudhir Mathur and Shanu Mathur, individually and dba Safari Kid, (hereinafter collectively "SAFARI KID") in the above-entitled case (Case No. 22-CIV-01362, hereinafterthe "Civil Action"). I am familiarwith the facts containedherein, and if called as a witness, I could testify competently thereto. 2. My clients, as commercial lessees, had received conflicting information from two sets of attorneys for the lessor, Defendant BJJF, LLC, a California Limited Liability Company I ("BJJF"). When my client recently received notices to quit, despite the pending Civil Action, 8, on April 25, 2022, prior to said Defendant's counsel filing any appearance, let alone the 9| pending demurrer, I reached out to both sets of attorneys inquiring as to who would be 10| representing the Defendant lessor in the above-entitled action. A copy of said email dated Ill April 25, 2022 is attachedas Exhibit 1. Neither attorney responded at that time. 12| 3. Prior to receipt of the demurrer in the Civil Action, on Saturday May 14, 2022 I did reach 13| out to counsel, explaining my not being available during the 3 business days that encompassed 14| his notice to respond. A copy of that response, asking for an opportunity to speak to counsel, is 15| attached as Exhibit 2. I have had absolutely no response to date to my efforts at outreach. 16| 4. Since then, employing other counsel (Law Offices of Todd Rothbard), Defendant has 17| separately filed an eviction lawsuit, San Mateo County Superior Court case number 22-UDL- 181 00387 (the "UD Action") on June 3, 2022, notwithstanding the pending action in the above- 19| entitled matter (the Civil Action seeks specific performance and declaratory relief over alleged 201 breachof contract actionsby the lessor) arising out ofthe same facts and circumstances ofthe 21| lease dispute between the same parties over the same lease agreement. Plaintiffs hereby 22| request that the court take judicial notice of said eviction lawsuit Complaint filed in this court. 231 5. As a review of the pleadings on file in the both of the two above-entitled actions discloses 24| (Request for Judicial Notice), the dispute surrounds possessory interests and financial rights 251 and responsibilities in a commercial lease for real property located in the city of San Mateo, 26| County of SanMateo, commonly known as 521 E. Fifth Avenue, SanMateo, CA 94402. APN 27| ^m SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387 I LAW FIRM Declaration of Harry I. Price in Support ofMotion to Consolidate Two Related Pending Actions 034-186-090 (hereinafter the "Property"). Plaintiffs SAFARI KID, as lessee, operates a pre- school and day care center in the premises owned by BJJF, as lessor. 6. As set forth in the accompanyingdeclaration of SudhirMathur filed herewith, SAFARI KID is current on all payment obligationsunderthe lease, as a result ofa "rent reduction and deferral agreement" between the parties and the payment under protest ofthe disputed amount of $127, 698. 00 that was tendered by SAFARI KID to BJJF; 7. While there is a financial standoff between the two parties, they both revolve around 8| possession and the "rent reduction and deferral agreement" between the parties. As set forth in Q the same declaration ofMr. Mathur, all monthly payment obligations were paid on time by 10| SAFARI KID and are now current, thereby negating the contents ofthe 30 day notice to quit Ill that purport to support the UD Action; 12| 8. There are no other impacted parties to be involved other than the same parties involved in 13| the two lawsuits referred to above; 14| 9. Consolidation ofthe two above-referenced lawsuits is necessary and appropriate for the 15| following reasons: 16| a. The allegations and complaints arise out ofthe same facts and circumstances 17| concerning occupancy and possessionofa commercial premises, whereboth ofsaid 18| actions share a common question of fact (the impact of the "rent reduction and 19| deferral agreement" betweenthe parties) or law; 20 [ b. Consolidation will promote the ends ofjustice taking into account whether the 21| common question of fact or law is predominating and significant to the litigation. 22| One can imaginethat if the Lesseewere behindin payments, that a Lessorwould 231 exclaim aboutthe need for a speedy eviction- but that is NOT the circumstance in 24| the present dispute. The 30 day Noticeto Quit upon whichthe UD Action is based 251 does not allege any financial arrears; 26| c. The convenience of parties, witnesses, and counsel. We have the very same parties 27| involved in both cases; and each ofthe parties would be available to testify, which BH SAFARIKIDv. BJJF,et al ~ 3 CaseNo. 22-CIV-01362;CaseNo. 22-UDL-00387 I LAW FIRM I Declaration ofHarry I. Price in Support ofMotion to Consolidate Two Related Pending Actions testimony would be redundant in each of the two cases. While BJJF has two sets of counsel - one for the Civil Action and one for the UD Action - consolidation would simply mean that they would work together, as they are doing now, or, alternatively, only one would remain; d. the relative development of the actions and the work product of counsel. In both cases, we are at the very beginning ofthe action, the pleading stage. While BJJFmay 7 argue that there is a demurrer and motion to strike pending in the Civil Action, both 8 ofthose matters should be resolved by the hearing on the present action. No pre-trial 911 discovery has taken place to date; 1011 e. the efficient utilization ofjudicial facilities and manpower. During this time of the 11 pandemic, when some courts are delaying hearings due to staffing concerns, judicial 1211 economy is more important than ever. Requiring two trials over the very same 1311 reduntant issues is not only not necessary, it would be an exorbitant use ofjudicial 14|| resources; 151 [ f. the calendar of the courts. I recognize that the UD Action would ordinarily be 16|| entitled to preference on the trial calendar. On behalfof SAFARI KID I hereby offer 1711 to stipulate that. once the pleadings are all "in order" andthe matter is^at issue, that an 1811 order ofpreference be issuedto expeditethe trial in this matter; and 19 g. the disadvantages ofduplicative and inconsistent rulings, orders, orjudgments. 2011 Arguendo, one can imagine that not ordering consolidation could actually result in 2111 THREEcourt proceedings, if, for instance: ifBJJFlost the UD Action; bul thereafter 2211 not only argued that it had no resjudicata impact but actually then won the Civil 2311 Action; then they would wish to turn around and file a second unlawful detainer 24 action, which would mean a third action between the same parties over the same 2511 issues. 2611 10. In short, consolidation will promote judicial economy, so that the parties would avoid a 2711 multiplicity oflawsuits arising out ofthe same facts and circumstances. Counsel for SAFARI si 4 SAFARIKID v. BJJF,et al ~ CaseNo. 22-CIV-01362;CaseNo. 22-UDL-00387 I LAWHRM I Declaration ofHarry I. Price in Support ofMotion to Consolidate Two Related Pending Actions KID hadpreviously requested that BJJFnot file any eviction action, but BJJFhas refused, without explanation. 11. Additionally, in addition to offering to stipulate to an order for preference on the trial calendar for the consolidated action, my client SAFARI KID further offers to stipulate that the lessor BJJFcan cashthe check provided for payment ofthe June rent without prejudice to any of their rights to continue with the consolidated litigation. I declare under penalty ofperjury underthe laws ofthe State of Californiathat the foregoing is true and correct and that this declaration was executed on June 14, 2022 at Los 91 Altos, California. 10| By:. Harry^Price, Esq.s Ill Attorneys for Plaintiffs SAFARI KID 12| 131 141 151 16| 17| 18| l9| 20| 21| 22| 23| 24| 251 26| 271 BE SAFARI KID v. BJJF, et al ~ Case No. 22-CIV-01362; Case No. 22-UDL-00387 I LAW FRM Declaration of Harry I. Price in Support of Motion to Consolidate Two Related Pending Actions