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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 ) Case No.: 22-CIV-01362
13
Liability Company, and Sudhir Mathur and )
14 Shanu Mathur,individually and dba Safari ) DEFENDANT,BJJF, LLC’S REPLY
Kid, ) MEMORANDUM OF POINTS AND
15 Plaintiffs, ) AUTHORITIES IN SUPPORT OF
) MOTON TO STRIKE PLAINTIFFS’
16 VS. ) COMPLAINT.
)
17
BJJF, LLC,a California Limited Liability ) [COMPANION 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
DEFENDANT'S REPLY MEMORANDUM OF POINTS AND AUTHORITIES
23 IN SUPPORT OF MOTION TO STRIKE COMPLAINT.
24 I.
INTRODUCTION
25
26 Defendant, BJJF, LLC, submits this Reply Memorandum to the plaintiff. Safari Kid’s,
27 opposition.
28
1
DEFENDANT, BJJF, LLC’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTON TO STRIKE
PLAINTIFFS’ COMPLAINT.
1 II.
ARGUMENT
2
A.
3
THE MOTION TO STRIKE FALSE OF IMPROPER MATTER SHOULD BE
4 GRANTED BECAUSE SAFARI KID’S COUNSEL’S DECLARATION PROVIDES
SWORN TESTIMONY THAT HE WAS PROVIDED WITH AN ACCOUNTING.
5
6 In its moving memorandum BJJF, LLC, pointed out numerous allegations where the
7 complaint contained false or improper or irrelevant or immaterial matter and cited the following
as just two examples of the false or improper matter sought to be stricken.
9
While Safari Kid alleges it was seeking an accounting, BJJF, LLC, did in fact provide
10
Safari Kid with an accounting, and so the following matter in the complaint is false or improper:
11
12
Move To Strike:(See Exhibit “1” Complaint. P. 5 f 16; L 12-15).
(Note: BJJF, LLC in fact provided an accounting to plaintiff)-
44
13 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
14 Agreement; and, additionally, BJJF has now chosen to threaten eviction proceedings,
9?
despite the fact that there are no grounds for any claim of default.
15
16 Move To Strike:(See Exhibit “1” Complaint. P. 9 Fourth CA (Accounting)).
Entire CA (Note: BJJF, LLC in fact provided an accounting to plaintiff).
17
An accounting was provided to Safari Kids’ counsel (Harry Price, Esq.). Mr. Price
18
19 testified to that fact in his opposition declaration through an email from opposing counsel
20 providing him with the accounting, but Safari Kid did not bring that fact to the Court’s attention.
21
In BJJF, LLC’s Motion To Strike, it was stated that “BJJF, LLC provided an accounting
22
to plaintiff’ (Notice of Motion to Strike, P. 3, L:26-27, and Moving Memorandum, P.4, L:13),
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and “Note: BJJF, LLC in fact provided an accounting to plaintiff,” (Moving Memorandum, P.7,
24
25 L:13).
26 In his opposition declaration. Safari Kid’s counsel, Mr. Price, states under penalty ol
27
perjury that he sent an email to “both sets of attorneys [Mr. Johnston, this civil matter, and Mr.
28
2
DEFENDANT. B.IJF. LLC’S REPLY MEMORANDUM OF POINTS AND AUT!lORITlES IN SUPPORT OF MOTON TO STRIKE
PLAINTIFFS’ COMPLAINT.
1 Skarbek, an unlawful detainer matter]. A copy of Mr. Price’s email dated April 15, 2022, is
2
attached to Mr. Price’s declaration as Exhibit 1.” (Price Declaration in opposition to motion to
3
strike, P.2, L:l-3).
4
The “Exhibit 1” to Mr. Price’s declaration contains an email from BJJF, EEC’s attorney,
5
6 Mr. Skarbek to Mr. Price, dated April 15, 2022, at 1:29 p.m., which states:
7 Harry,
Michael Johnston sent me the complaint that you filed in this matter.
My firm drafted the notice of termination and will be handling the UD matter.
9
Michael let me know that your client has requested an accounting.
I am attaching that here for you.
10 (Price declaration, Exhibit 1, P.2, Skarbek email to Price (underline added)).
11 Although Mr. Price appears to have forgotten to advise the court, he (and thereby Safari
12
Kid) have been provided an accounting as stated in BJJF, EEC’s moving papers for the demurrer
13
and motion to strike, and as acknowledged in Mr. Price’s sworn declaration.
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III.
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CONCLUSION
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The Court should grant BJJF, EEC’s motions to strike Safari Kid’s complaint, and
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separately to the first, second, third, and fourth causes of action, because:
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19 1. BJJF, EEC’s timely filed motion to strike matter from the complaint is proper;
and,
20 2. BJJF, EEC’s motions to strike clearly set forth the false or improper or irrelevant
and immaterial allegations which may be stricken as set forth in the moving and
21
this reply memorandum.
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Dated: June 20, 2022. Respectfully submitted,
23
24 EAW OFFICES OF MICHAEE C. JOHNSTON
25
/s/ Michael C. Johnston
26 Michael C. Johnston
Attorney for Defendant,
27
BJJF, EEC.
28
3
DEFENDANT, BJJF, LLC'S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTON TO STRIKE PLAINTIFFS' COMPLAINT.
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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 ) Case No.: 22-CIV-01362 13 Liability Company, and Sudhir Mathur and ) 14 Shanu Mathur,individually and dba Safari ) DEFENDANT,BJJF, LLC’S REPLY Kid, ) MEMORANDUM OF POINTS AND 15 Plaintiffs, ) AUTHORITIES IN SUPPORT OF ) MOTON TO STRIKE PLAINTIFFS’ 16 VS. ) COMPLAINT. ) 17 BJJF, LLC,a California Limited Liability ) [COMPANION 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 DEFENDANT'S REPLY MEMORANDUM OF POINTS AND AUTHORITIES 23 IN SUPPORT OF MOTION TO STRIKE COMPLAINT. 24 I. INTRODUCTION 25 26 Defendant, BJJF, LLC, submits this Reply Memorandum to the plaintiff. Safari Kid’s, 27 opposition. 28 1 DEFENDANT, BJJF, LLC’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTON TO STRIKE PLAINTIFFS’ COMPLAINT. 1 II. ARGUMENT 2 A. 3 THE MOTION TO STRIKE FALSE OF IMPROPER MATTER SHOULD BE 4 GRANTED BECAUSE SAFARI KID’S COUNSEL’S DECLARATION PROVIDES SWORN TESTIMONY THAT HE WAS PROVIDED WITH AN ACCOUNTING. 5 6 In its moving memorandum BJJF, LLC, pointed out numerous allegations where the 7 complaint contained false or improper or irrelevant or immaterial matter and cited the following as just two examples of the false or improper matter sought to be stricken. 9 While Safari Kid alleges it was seeking an accounting, BJJF, LLC, did in fact provide 10 Safari Kid with an accounting, and so the following matter in the complaint is false or improper: 11 12 Move To Strike:(See Exhibit “1” Complaint. P. 5 f 16; L 12-15). (Note: BJJF, LLC in fact provided an accounting to plaintiff)- 44 13 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 14 Agreement; and, additionally, BJJF has now chosen to threaten eviction proceedings, 9? despite the fact that there are no grounds for any claim of default. 15 16 Move To Strike:(See Exhibit “1” Complaint. P. 9 Fourth CA (Accounting)). Entire CA (Note: BJJF, LLC in fact provided an accounting to plaintiff). 17 An accounting was provided to Safari Kids’ counsel (Harry Price, Esq.). Mr. Price 18 19 testified to that fact in his opposition declaration through an email from opposing counsel 20 providing him with the accounting, but Safari Kid did not bring that fact to the Court’s attention. 21 In BJJF, LLC’s Motion To Strike, it was stated that “BJJF, LLC provided an accounting 22 to plaintiff’ (Notice of Motion to Strike, P. 3, L:26-27, and Moving Memorandum, P.4, L:13), 23 and “Note: BJJF, LLC in fact provided an accounting to plaintiff,” (Moving Memorandum, P.7, 24 25 L:13). 26 In his opposition declaration. Safari Kid’s counsel, Mr. Price, states under penalty ol 27 perjury that he sent an email to “both sets of attorneys [Mr. Johnston, this civil matter, and Mr. 28 2 DEFENDANT. B.IJF. LLC’S REPLY MEMORANDUM OF POINTS AND AUT!lORITlES IN SUPPORT OF MOTON TO STRIKE PLAINTIFFS’ COMPLAINT. 1 Skarbek, an unlawful detainer matter]. A copy of Mr. Price’s email dated April 15, 2022, is 2 attached to Mr. Price’s declaration as Exhibit 1.” (Price Declaration in opposition to motion to 3 strike, P.2, L:l-3). 4 The “Exhibit 1” to Mr. Price’s declaration contains an email from BJJF, EEC’s attorney, 5 6 Mr. Skarbek to Mr. Price, dated April 15, 2022, at 1:29 p.m., which states: 7 Harry, Michael Johnston sent me the complaint that you filed in this matter. My firm drafted the notice of termination and will be handling the UD matter. 9 Michael let me know that your client has requested an accounting. I am attaching that here for you. 10 (Price declaration, Exhibit 1, P.2, Skarbek email to Price (underline added)). 11 Although Mr. Price appears to have forgotten to advise the court, he (and thereby Safari 12 Kid) have been provided an accounting as stated in BJJF, EEC’s moving papers for the demurrer 13 and motion to strike, and as acknowledged in Mr. Price’s sworn declaration. 14 III. 15 CONCLUSION 16 The Court should grant BJJF, EEC’s motions to strike Safari Kid’s complaint, and 17 separately to the first, second, third, and fourth causes of action, because: 18 19 1. BJJF, EEC’s timely filed motion to strike matter from the complaint is proper; and, 20 2. BJJF, EEC’s motions to strike clearly set forth the false or improper or irrelevant and immaterial allegations which may be stricken as set forth in the moving and 21 this reply memorandum. 22 Dated: June 20, 2022. Respectfully submitted, 23 24 EAW OFFICES OF MICHAEE C. JOHNSTON 25 /s/ Michael C. Johnston 26 Michael C. Johnston Attorney for Defendant, 27 BJJF, EEC. 28 3 DEFENDANT, BJJF, LLC'S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTON TO STRIKE PLAINTIFFS' COMPLAINT.