Preview
1 Mark J. D'Argenio (State Bar No. 238006)
mdargenio@wshblaw.com
2 Nancy A. McPherson (State Bar No. 129464) ELECTRONICALLY
nmcpherson@wshblaw.com
3 WOOD, SMITH, HENNING & BERMAN LLP FILED
Superior Court of California,
1401 Willow Pass Road, Suite 700 County of San Francisco
4 Concord, California 94520-7982
Phone: (925) 222-3400 ♦ Fax: (925) 356-8250 07/05/2023
Clerk of the Court
5 BY: SANDRA SCHIRO
Deputy Clerk
6 Attorneys for Defendants, RELATED MANAGEMENT COMPANY, L.P. (erroneously sued as
Relative Management Co.), LA SALLE PRESERVATION, L.P. (erroneously sued as La Salle
7 Apart. Building Company)
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN FRANCISCO
11
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
12 SHARON ALLEN, Case No. CGC-23-605806
1401 WILLOW PASS ROAD, SUITE 700
CONCORD, CALIFORNIA 94520-7982
13 Plaintiff, MEMORANDUM OF POINTS AND
Attorneys at Law
AUTHORITIES IN SUPPORT OF
14 v. DEFENDANTS RELATED
MANAGEMENT COMPANY (erroneously
15 RELATED MANAGEMENT CO., LA sued as Relative Management Co.) AND LA
SALLE APTS., and STACY SOLOMAN, SALLE PRESERVATION'S (erroneously
16 sued as La Salle Apart. Building Company)
Defendants. DEMURRER TO FIRST AMENDED
17 COMPLAINT
18 Filed Concurrently with NOTICE AND DEMURRER;
DECLARATION OF MARK J. D'ARGENIO;
19 [PROPOSED] ORDER
20 Date: August 10, 2023
Time: 9:30 a.m.
21 Dept.: 302
22 Action Filed: 4/13/23
23
24 Defendants, RELATED MANAGEMENT COMPANY, L.P. (erroneously sued as Relative
25 Management Co.), LA SALLE PRESERVATION, L.P. (erroneously sued as La Salle Apart.
26 Building Company) (hereinafter collectively "Defendants") provide the following Memorandum
27 of Points and Authorities in support of its Demurrer to Plaintiff's First Amended Complaint.
28 ///
28895770.1:10784-1455
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS RELATED MANAGEMENT
COMPANY AND LA SALLE PRESERVATION'S DEMURRER TO FIRST AMENDED COMPLAINT
1 I. INTRODUCTION
2 Plaintiff is either Sharon Allen or "Sharon Allen and her children." Despite this
3 uncertainly, Defendants will generally refer to "Plaintiff" for the purposes of this motion. On
4 April 13, 2023, Plaintiff filed a Complaint in the above-referenced. On May 1, 2023, an amended
5 complaint was filed (hereinafter "First Amended Complaint" or "FAC"). Both complaints were
6 signed by, and contain sworn statements by, an individual named Michael Decarlo Wright, who is
7 not a party to the case but who purports to be Plaintiff Sharon Allen's "advocate" and "legal
8 representative." (See e.g., FAC, p. 4 at top.)
9 There appear to be three named defendants: Relative Management Co., La Salle Apart.
10 Building Company, and Stacy Soloman [sic]. Counsel herein is appearing for the first two
11 entities, whose true titles were erroneously alleged (hereinafter collectively "Defendants").
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12 Counsel herein is not appearing for Defendant Stacy Soloman at this time. (D'Argenio Decl., ¶3.)
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CONCORD, CALIFORNIA 94520-7982
13 The FAC makes alternatingly frivolous and quite serious allegations against Defendants.
Attorneys at Law
14 In addition to alleged rat and mice infestations, and alleged failure to repair bullet holes in the
15 buildings' exterior, the FAC accuses Defendants (baselessly) of racial discrimination, retaliation,
16 and violation of federal and state housing laws. These are serious allegations, to which
17 Defendants are entitled to fully and forcefully respond.
18 The uncertainties of the FAC, as discussed below, prevent Defendants from understanding
19 these serious claims and meaningfully responding to them. (D'Argenio Decl., ¶4.) On this basis,
20 Defendants demurrer to the FAC on uncertainty grounds.
21 II. LEGAL STANDARD
22 A demurrer tests the legal sufficiency of the Complaint and raises issues of law, not fact,
23 regarding the Complaint's form or content. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.)
24 It is used to challenge defects that appear on the face of the pleading under attack or from matters
25 outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
26 Code of Civil Procedure section 430.10 provides in pertinent part:
27 The party against whom a complaint or cross-complaint has been filed may object,
by demurrer or answer as provided in Section 430.30, to the pleading on any one or
28 more of the following grounds: …
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MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS RELATED MANAGEMENT
COMPANY AND LA SALLE PRESERVATION'S DEMURRER TO FIRST AMENDED COMPLAINT
1
(f) The pleading is uncertain. As used in this subdivision, “uncertain”
2 includes ambiguous and unintelligible.
3 Section 430.30(a) provides that a demurrer may be taken to the whole complaint, or to any
4 causes of action stated in it. Here, Defendants demurrer to the entire complaint and to each
5 separate cause of action, to the extent any clear list of causes of action can be discerned.
6 A demurrer for uncertainty must be sustained where the Complaint is so ambiguous or
7 confusing that the defendant cannot reasonably respond—i.e., that he cannot reasonably determine
8 what issues must be admitted or denied, or what claims are directed against him. (Khoury v.
9 Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp.
10 (1986) 185 Cal.App.3d 135, 139 (demurrer for uncertainty will lie when defendant cannot tell
11 what he or she is supposed to respond to).)
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
12 While a demurrer on grounds of uncertainty is disfavored, courts uphold sustained
1401 WILLOW PASS ROAD, SUITE 700
CONCORD, CALIFORNIA 94520-7982
13 demurrers on this basis when the pleadings justify it. Along those lines, demurrers on this basis
Attorneys at Law
14 should be sustained when the uncertainty of a complaint genuinely prevents defendants from
15 understanding the claims against them and therefore responding to them. (See Williams, supra,
16 185 Cal.App.3d at 139; Hagely v. Hagely (1886) 68 Cal. 348, 349 (demurrer properly sustained as
17 to a defense that left uncertain whether the defendant intended to plead the statute of limitations or
18 an equitable defense).)
19 III. ARGUMENT
20 The operative complaint is this matter is poorly drafted, is often incoherently written,
21 contains confusing inserted images and exhibits, and is rife with surplusage. This demurrer is not
22 targeting these inadequacies. Instead, this demurrer is based on uncertainties in the complaint as
23 drafted that prevent Defendants from understanding the claims being levelled against them.
24 Specifically, the complaint is uncertain because it fails to discernably allege the following:
25 (a) who the plaintiffs are, (b) what the causes of action are, (c) which defendants the causes of
26 actions are alleged against, (d) what facts are alleged in support of each cause of action (to the
27 extent the causes of action can be discerned). In addition, portions of the complaint are also
28 illegible, and the role of Michael Wright as "legal representative" is troubling and contributes to
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MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS RELATED MANAGEMENT
COMPANY AND LA SALLE PRESERVATION'S DEMURRER TO FIRST AMENDED COMPLAINT
1 the uncertainty of the overall pleading.
2 A. The FAC Is Fatally Uncertain as to the Identity of the Actual Plaintiffs.
3 On page 1 of the FAC, the plaintiff is listed as "Sharon Allen." However, at the heading
4 all each pages of the complaint, the plaintiff is listed as "Sharon Allen + all her children." At page
5 3, the Complaint is signed by "Sharon Allen and her kids." At page 4, the plaintiffs are described
6 as "Sharon Allen and her kids." In fact, Plaintiff's children are also referenced at various points in
7 the complaint, in a manner that makes it seem as if they are claimants.
8 In addition, at page 27 of the FAC and other locations, Plaintiffs are alleged to include an
9 individual named Margie Miller and "an additional 60+ black-skinned African American tenant
10 plaintiffs."1 It is unclear who Margie Miller is, but at one point it is alleged as follows:
11 Margie Miller, the 67 years old black skin color African American female had to
WOOD, SMITH, HENNING & BERMAN LLP
eat her food by a meanes getting takeout [sic] orders of food and using a hot plate to
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
12 cook food in damaged outrageous kitchen and after completion of eating her meals
1401 WILLOW PASS ROAD, SUITE 700
CONCORD, CALIFORNIA 94520-7982
the 67 year old plaintiff had to wash her dishes in the bathroom sink. (p. 20.)
13
Attorneys at Law
Ms. Miller is referenced repeatedly in pages 18-20 and described as also being represented by Mr.
14
Wright. If the allegations are taken as true (as required upon demurrer), then Maggie Miller is
15
apparently an intended plaintiff.
16
Defendants are entitled to resolution of the uncertainly as to who is actually in the Plaintiff
17
group. Because it is not clear who is bringing the lawsuit, the complaint is fatally uncertain.
18
B. The Complaint Is Impermissibly Uncertain as to What Causes of Action Are
19 Alleged.
20 At page 3, paragraph 10, of the form complaint, Plaintiff lists the following causes of
21 action: Breach of Contract, General Negligence, Fraud, Retaliation, Wrongful Eviction, Civil
22 Right Act of 1964, Child Indangerment [sic], Nuisance, The Rico Act, Conspiracy, 14th
23 Amendment Due Process (including possible class action allegations).
24 However, at various time in the FAC, Plaintiff alleges additional causes of action,
25 including "General Negligence" (p. 23), "Intentional Tort" (p. 4), "Equal Protection Clause
26 Violations" ("discriminating, violating ... equal protection under the law and because of the fact
27
1
The allegations of the at times "60+" at times "81+" additional tenant plaintiff may be related to uncertain
28 class action allegation. (See infra III.B.)
28895770.1:10784-1455 -4-
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS RELATED MANAGEMENT
COMPANY AND LA SALLE PRESERVATION'S DEMURRER TO FIRST AMENDED COMPLAINT
1 that there's a lease," p. 12) "Elder Abuse" (p. 19), "Premises Liability" (p. 26), and "Fraud" (p. 27).
2 Since these were not listed as causes of action at paragraph 10, it is unclear whether these are
3 alleged as actual causes of action. In some instances, like the Equal Protection Clause violations,
4 they could simply be referenced off hand. In others, like the Fraud cause of action, it is possible
5 that Plaintiff just arbitrary selected Judicial Counsel form PLP-P1-001(4) regarding fraud claims.
6 In addition, Intentional Infliction of Emotional Distress (IIED) is listed as a type of
7 damages at paragraph 11 of the judicial counsel complaint. It is unclear whether or not IIED is an
8 alleged cause of action here, or if Plaintiff is just seeking recovery for emotional distress as an
9 item of damages.
10 Moreover, at several times in the Complaint, a class action is asserted or members of a
11 class are referred. For instance, at page 12, Plaintiff alleges, "said defendants are violating tenant's
WOOD, SMITH, HENNING & BERMAN LLP
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12 riots at a class action level in violation of Civil Rights Act of 1964." It is unclear if class
1401 WILLOW PASS ROAD, SUITE 700
CONCORD, CALIFORNIA 94520-7982
13 allegations are being formally made.
Attorneys at Law
14 As a result of the foregoing, Defendants do not even know which causes of action are
15 being asserted. This rises to the level of uncertainty under 430.10(f) because knowing the causes
16 of action will determine how Defendants respond. For example, whether or not elder abuse is
17 being alleged is important, because Defendants may assert affirmative defenses specific to that
18 claim, including that Plaintiff does not have standing to assert this claim due to age. Moreover, if
19 negligence is not actually alleged as a cause of action, then Defendants will not bother to
20 challenge it (either on the pleadings or via motion for summary judgment). However, if it is
21 alleged, Defendants would very much challenge the cause of action via some form of dispositive
22 motion.
23 For this reason, the Complaint is fatally uncertain.
24 C. The FAC Does Not Indicate Which Causes of Action Are Alleged Against
Which of the Three Named Defendants, Making It Fatally Uncertain.
25
La Salle is alleged to be to owner and Related is alleged to be the property manager of the
26
subject property. (FAC, p. 2.) It is alleged that Stacey Soloman "of United Legal, charged $57.00
27
for a successful attempt of service on 11/3/21." Allegedly, she had three unsuccessful attempts at
28
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MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS RELATED MANAGEMENT
COMPANY AND LA SALLE PRESERVATION'S DEMURRER TO FIRST AMENDED COMPLAINT
1 service previous to that. (See FAC, p. 8 at top.) It appears from the balance of the allegations that
2 Ms. Soloman2 was a process server hired by the law firm that filed the unlawful detainer action. A
3 judgment in that matter dated December 2, 2021 is attached at page 86.
4 In light of the foregoing it is crucial to understand which causes of action (to the extent
5 they can be discerned) are alleged against which defendants. For example, is wrongful eviction
6 alleged against Related and LaSalle, or just Ms. Soloman? Both are plausible based on how the
7 FAC is drafted. If all causes are alleged against all defendants, this is not made clear in the
8 drafting. In fact, on page 4, the defendants are listed as Related, LaSalle, and "all of you." Does
9 that include Ms. Soloman? Is that intend to apply to all causes of action? It is unclear. The FAC
10 is factually uncertain for this reason.
11 D. The FAC Is Drafted in Such an Impermissibly Uncertain Way as to Provide
WOOD, SMITH, HENNING & BERMAN LLP
No Indication of Which Facts Are Alleged to Support Which Causes of Action.
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12
1401 WILLOW PASS ROAD, SUITE 700
CONCORD, CALIFORNIA 94520-7982
Code of Civil Procedure section 425.10(a)(1) provides that a Complaint "shall contain"
13
Attorneys at Law
"[a] statement of the facts constituting the cause of action, in ordinary and concise language." A
14
plaintiff must therefore plead such facts as are necessary "to acquaint a defendant with the nature,
15
source, and extent of [the plaintiff's] claims." (Doe v. City of Los Angeles (2007) 42 Cal.App.4th
16
531, 549-50 (complaint asserting claims for childhood sexual abuse must "plausibly allege" that
17
non-perpetrator defendant concealed its knowledge of perpetrator's history of prior misconduct
18
with minors).)
19
At page 4, the FAC shifts from the basic PLD-PI-001 form to PLD-PI-001(3). This second
20
form allows a plaintiff to articulate facts and arguments in support of any cause(s) of action for
21
"intentional tort." As a threshold matter, it should be noted that certain of the causes of action
22
above are not intentional torts—for instance, general negligence, nuisance, and breach of contract.
23
Therefore, it is unclear whether the factual allegations that begin at page 4 are to be read as
24
applying to or supporting these non-intentional tort causes of action.
25
///
26
27
2
It is unlikely that he name is "Soloman" as opposed to "Solomon" but we use the name here as alleged in
28 the FAC.
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MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS RELATED MANAGEMENT
COMPANY AND LA SALLE PRESERVATION'S DEMURRER TO FIRST AMENDED COMPLAINT
1 A discussed above, the FAC might be read to allege as many as 13 or 14 causes of action.
2 However, the allegations beginning at page 4 are not alleged to apply to any particular causes of
3 action. The form itself clearly states: "Use a separate cause of action form for each cause of
4 action." Plaintiff does not do this. Instead of using a separate form for each cause of action,
5 Plaintiff commences 139 pages of hand-written, mostly factual assertions. Of the attached pages,
6 approximately 135 either have no heading that would indicate to which cause of action they apply,
7 or are written on the generic MC-025 attachment form.
8 It is entirely unclear which facts are alleged to support which causes of action. If all facts
9 are incorporated for all causes of action, this is not specified. For instance, a cause of action for
10 fraud is alleged. Where in the mountain of alleged facts are the asserted fraudulent statements?
11 Who made them? Were they reliable upon? Even having gone through the exercise of reading all
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12 the allegations in the FAC, these things are still not clear to Defendants. Defendants cannot
1401 WILLOW PASS ROAD, SUITE 700
CONCORD, CALIFORNIA 94520-7982
13 determine enough information in this regard to render a 430.10(e) challenge for failure to state a
Attorneys at Law
14 claim. Defendants are not even able to challenge the specificity of the fraud allegation, because
15 the alleged fraudulent statements are not alleged. This creates fundamental uncertainty.
16 To state another example, the FAC alleges a cause of action for conspiracy. While there is
17 a reference to all defendants "working together," it is not alleged which of the defendants are
18 alleged to have conspired and which actions were conspired.
19 These types of uncertainties could possibly be resolved if a separate fact sheet was used for
20 each cause of action. Code of Civil Procedure section 425.10(a)(1) would require that here. As it
21 is however, the morass of factual allegations in the FAC make it impossible to understand or
22 respond to the claims. This demurrer for uncertainty is the best possible means for Defendants to
23 challenge the complaint on this basis. After all, "there is a remedy for undue prolixity: a demurrer
24 for uncertainty." (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841.)
25 E. The Complaint Is, at Times, Illegible, Which Is a Valid Basis for the Court to
Deem It Fatally Uncertain under 431.10(f).
26
At a basic level, a significant portion of the complaint is illegible. One example among
27
many can be found at page 25, bottom third, where the very small writing wrapped around
28
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MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS RELATED MANAGEMENT
COMPANY AND LA SALLE PRESERVATION'S DEMURRER TO FIRST AMENDED COMPLAINT
1 portions of the judicial counsel form are illegible to counsel for Defendants in the copy received.
2 Likewise for portions of page 26. The writing on left side of pages 7, 8, and other pages of the
3 FAC is cut off by the scanning process as result of being too far outside the margins. Several of
4 the attached documents, including at page 92, are illegible. This illegibility is reason alone to
5 sustain this demurrer on uncertainty grounds.
6 F. The Role of Michael Wright as Legal Representative Is Uncertain, Impeded
Meet and Confer, and Potentially Violates State and Local Prohibitions.
7
At Page 47, and many other areas of the FAC, Michael Wright is described as "advocate
8
representative." There, he states that the Plaintiff Sharon Allen "could not find an attorney to
9
represent her." Mr. Wright, who clearly drafted the complaint, explains that he "had a job on shift
10
front desk clerk and because this fact ... was fully aware of superior court room [sic] legal
11
WOOD, SMITH, HENNING & BERMAN LLP
experience." He then described a "documented contract agreement, explaining that I ... would be
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
12
1401 WILLOW PASS ROAD, SUITE 700
CONCORD, CALIFORNIA 94520-7982
the plaintiff's advocate and her representative, do all leg work (travel), production of
13
Attorneys at Law
documentations and court filings and court room appearances etc. etc." The purported "contract
14
agreement" is included at page 75 of the FAC. It is clearly drafted by Mr. Wright and provides no
15
explanation as to why Ms. Allen needed legal assistance except that she doesn't "have time to do
16
the legal documentation."
17
The unauthorized practice of law is a crime under Business & Professions Code section
18
6125. Counsel for Defendants are concerned that Mr. Wright's representation of Sharon Allen
19
may run afoul of this and other state prohibitions on the practice of law by non-lawyers. This is a
20
particularly problematic here, where the complaint contains several averments by Mr. Wright
21
himself and was clearly drafted by him.
22
As it stands, Defendants were forced to meet and conferred with Mr. Wright in order to
23
comply with the requirements of Code of Civil Procedural section 430.41. This was only done
24
Preview
1 Mark J. D'Argenio (State Bar No. 238006) mdargenio@wshblaw.com 2 Nancy A. McPherson (State Bar No. 129464) ELECTRONICALLY nmcpherson@wshblaw.com 3 WOOD, SMITH, HENNING & BERMAN LLP FILED Superior Court of California, 1401 Willow Pass Road, Suite 700 County of San Francisco 4 Concord, California 94520-7982 Phone: (925) 222-3400 ♦ Fax: (925) 356-8250 07/05/2023 Clerk of the Court 5 BY: SANDRA SCHIRO Deputy Clerk 6 Attorneys for Defendants, RELATED MANAGEMENT COMPANY, L.P. (erroneously sued as Relative Management Co.), LA SALLE PRESERVATION, L.P. (erroneously sued as La Salle 7 Apart. Building Company) 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 12 SHARON ALLEN, Case No. CGC-23-605806 1401 WILLOW PASS ROAD, SUITE 700 CONCORD, CALIFORNIA 94520-7982 13 Plaintiff, MEMORANDUM OF POINTS AND Attorneys at Law AUTHORITIES IN SUPPORT OF 14 v. DEFENDANTS RELATED MANAGEMENT COMPANY (erroneously 15 RELATED MANAGEMENT CO., LA sued as Relative Management Co.) AND LA SALLE APTS., and STACY SOLOMAN, SALLE PRESERVATION'S (erroneously 16 sued as La Salle Apart. Building Company) Defendants. DEMURRER TO FIRST AMENDED 17 COMPLAINT 18 Filed Concurrently with NOTICE AND DEMURRER; DECLARATION OF MARK J. D'ARGENIO; 19 [PROPOSED] ORDER 20 Date: August 10, 2023 Time: 9:30 a.m. 21 Dept.: 302 22 Action Filed: 4/13/23 23 24 Defendants, RELATED MANAGEMENT COMPANY, L.P. (erroneously sued as Relative 25 Management Co.), LA SALLE PRESERVATION, L.P. (erroneously sued as La Salle Apart. 26 Building Company) (hereinafter collectively "Defendants") provide the following Memorandum 27 of Points and Authorities in support of its Demurrer to Plaintiff's First Amended Complaint. 28 /// 28895770.1:10784-1455 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS RELATED MANAGEMENT COMPANY AND LA SALLE PRESERVATION'S DEMURRER TO FIRST AMENDED COMPLAINT 1 I. INTRODUCTION 2 Plaintiff is either Sharon Allen or "Sharon Allen and her children." Despite this 3 uncertainly, Defendants will generally refer to "Plaintiff" for the purposes of this motion. On 4 April 13, 2023, Plaintiff filed a Complaint in the above-referenced. On May 1, 2023, an amended 5 complaint was filed (hereinafter "First Amended Complaint" or "FAC"). Both complaints were 6 signed by, and contain sworn statements by, an individual named Michael Decarlo Wright, who is 7 not a party to the case but who purports to be Plaintiff Sharon Allen's "advocate" and "legal 8 representative." (See e.g., FAC, p. 4 at top.) 9 There appear to be three named defendants: Relative Management Co., La Salle Apart. 10 Building Company, and Stacy Soloman [sic]. Counsel herein is appearing for the first two 11 entities, whose true titles were erroneously alleged (hereinafter collectively "Defendants"). WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 12 Counsel herein is not appearing for Defendant Stacy Soloman at this time. (D'Argenio Decl., ¶3.) 1401 WILLOW PASS ROAD, SUITE 700 CONCORD, CALIFORNIA 94520-7982 13 The FAC makes alternatingly frivolous and quite serious allegations against Defendants. Attorneys at Law 14 In addition to alleged rat and mice infestations, and alleged failure to repair bullet holes in the 15 buildings' exterior, the FAC accuses Defendants (baselessly) of racial discrimination, retaliation, 16 and violation of federal and state housing laws. These are serious allegations, to which 17 Defendants are entitled to fully and forcefully respond. 18 The uncertainties of the FAC, as discussed below, prevent Defendants from understanding 19 these serious claims and meaningfully responding to them. (D'Argenio Decl., ¶4.) On this basis, 20 Defendants demurrer to the FAC on uncertainty grounds. 21 II. LEGAL STANDARD 22 A demurrer tests the legal sufficiency of the Complaint and raises issues of law, not fact, 23 regarding the Complaint's form or content. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) 24 It is used to challenge defects that appear on the face of the pleading under attack or from matters 25 outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 26 Code of Civil Procedure section 430.10 provides in pertinent part: 27 The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or 28 more of the following grounds: … 28895770.1:10784-1455 -2- MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS RELATED MANAGEMENT COMPANY AND LA SALLE PRESERVATION'S DEMURRER TO FIRST AMENDED COMPLAINT 1 (f) The pleading is uncertain. As used in this subdivision, “uncertain” 2 includes ambiguous and unintelligible. 3 Section 430.30(a) provides that a demurrer may be taken to the whole complaint, or to any 4 causes of action stated in it. Here, Defendants demurrer to the entire complaint and to each 5 separate cause of action, to the extent any clear list of causes of action can be discerned. 6 A demurrer for uncertainty must be sustained where the Complaint is so ambiguous or 7 confusing that the defendant cannot reasonably respond—i.e., that he cannot reasonably determine 8 what issues must be admitted or denied, or what claims are directed against him. (Khoury v. 9 Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. 10 (1986) 185 Cal.App.3d 135, 139 (demurrer for uncertainty will lie when defendant cannot tell 11 what he or she is supposed to respond to).) WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 12 While a demurrer on grounds of uncertainty is disfavored, courts uphold sustained 1401 WILLOW PASS ROAD, SUITE 700 CONCORD, CALIFORNIA 94520-7982 13 demurrers on this basis when the pleadings justify it. Along those lines, demurrers on this basis Attorneys at Law 14 should be sustained when the uncertainty of a complaint genuinely prevents defendants from 15 understanding the claims against them and therefore responding to them. (See Williams, supra, 16 185 Cal.App.3d at 139; Hagely v. Hagely (1886) 68 Cal. 348, 349 (demurrer properly sustained as 17 to a defense that left uncertain whether the defendant intended to plead the statute of limitations or 18 an equitable defense).) 19 III. ARGUMENT 20 The operative complaint is this matter is poorly drafted, is often incoherently written, 21 contains confusing inserted images and exhibits, and is rife with surplusage. This demurrer is not 22 targeting these inadequacies. Instead, this demurrer is based on uncertainties in the complaint as 23 drafted that prevent Defendants from understanding the claims being levelled against them. 24 Specifically, the complaint is uncertain because it fails to discernably allege the following: 25 (a) who the plaintiffs are, (b) what the causes of action are, (c) which defendants the causes of 26 actions are alleged against, (d) what facts are alleged in support of each cause of action (to the 27 extent the causes of action can be discerned). In addition, portions of the complaint are also 28 illegible, and the role of Michael Wright as "legal representative" is troubling and contributes to 28895770.1:10784-1455 -3- MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS RELATED MANAGEMENT COMPANY AND LA SALLE PRESERVATION'S DEMURRER TO FIRST AMENDED COMPLAINT 1 the uncertainty of the overall pleading. 2 A. The FAC Is Fatally Uncertain as to the Identity of the Actual Plaintiffs. 3 On page 1 of the FAC, the plaintiff is listed as "Sharon Allen." However, at the heading 4 all each pages of the complaint, the plaintiff is listed as "Sharon Allen + all her children." At page 5 3, the Complaint is signed by "Sharon Allen and her kids." At page 4, the plaintiffs are described 6 as "Sharon Allen and her kids." In fact, Plaintiff's children are also referenced at various points in 7 the complaint, in a manner that makes it seem as if they are claimants. 8 In addition, at page 27 of the FAC and other locations, Plaintiffs are alleged to include an 9 individual named Margie Miller and "an additional 60+ black-skinned African American tenant 10 plaintiffs."1 It is unclear who Margie Miller is, but at one point it is alleged as follows: 11 Margie Miller, the 67 years old black skin color African American female had to WOOD, SMITH, HENNING & BERMAN LLP eat her food by a meanes getting takeout [sic] orders of food and using a hot plate to TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 12 cook food in damaged outrageous kitchen and after completion of eating her meals 1401 WILLOW PASS ROAD, SUITE 700 CONCORD, CALIFORNIA 94520-7982 the 67 year old plaintiff had to wash her dishes in the bathroom sink. (p. 20.) 13 Attorneys at Law Ms. Miller is referenced repeatedly in pages 18-20 and described as also being represented by Mr. 14 Wright. If the allegations are taken as true (as required upon demurrer), then Maggie Miller is 15 apparently an intended plaintiff. 16 Defendants are entitled to resolution of the uncertainly as to who is actually in the Plaintiff 17 group. Because it is not clear who is bringing the lawsuit, the complaint is fatally uncertain. 18 B. The Complaint Is Impermissibly Uncertain as to What Causes of Action Are 19 Alleged. 20 At page 3, paragraph 10, of the form complaint, Plaintiff lists the following causes of 21 action: Breach of Contract, General Negligence, Fraud, Retaliation, Wrongful Eviction, Civil 22 Right Act of 1964, Child Indangerment [sic], Nuisance, The Rico Act, Conspiracy, 14th 23 Amendment Due Process (including possible class action allegations). 24 However, at various time in the FAC, Plaintiff alleges additional causes of action, 25 including "General Negligence" (p. 23), "Intentional Tort" (p. 4), "Equal Protection Clause 26 Violations" ("discriminating, violating ... equal protection under the law and because of the fact 27 1 The allegations of the at times "60+" at times "81+" additional tenant plaintiff may be related to uncertain 28 class action allegation. (See infra III.B.) 28895770.1:10784-1455 -4- MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS RELATED MANAGEMENT COMPANY AND LA SALLE PRESERVATION'S DEMURRER TO FIRST AMENDED COMPLAINT 1 that there's a lease," p. 12) "Elder Abuse" (p. 19), "Premises Liability" (p. 26), and "Fraud" (p. 27). 2 Since these were not listed as causes of action at paragraph 10, it is unclear whether these are 3 alleged as actual causes of action. In some instances, like the Equal Protection Clause violations, 4 they could simply be referenced off hand. In others, like the Fraud cause of action, it is possible 5 that Plaintiff just arbitrary selected Judicial Counsel form PLP-P1-001(4) regarding fraud claims. 6 In addition, Intentional Infliction of Emotional Distress (IIED) is listed as a type of 7 damages at paragraph 11 of the judicial counsel complaint. It is unclear whether or not IIED is an 8 alleged cause of action here, or if Plaintiff is just seeking recovery for emotional distress as an 9 item of damages. 10 Moreover, at several times in the Complaint, a class action is asserted or members of a 11 class are referred. For instance, at page 12, Plaintiff alleges, "said defendants are violating tenant's WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 12 riots at a class action level in violation of Civil Rights Act of 1964." It is unclear if class 1401 WILLOW PASS ROAD, SUITE 700 CONCORD, CALIFORNIA 94520-7982 13 allegations are being formally made. Attorneys at Law 14 As a result of the foregoing, Defendants do not even know which causes of action are 15 being asserted. This rises to the level of uncertainty under 430.10(f) because knowing the causes 16 of action will determine how Defendants respond. For example, whether or not elder abuse is 17 being alleged is important, because Defendants may assert affirmative defenses specific to that 18 claim, including that Plaintiff does not have standing to assert this claim due to age. Moreover, if 19 negligence is not actually alleged as a cause of action, then Defendants will not bother to 20 challenge it (either on the pleadings or via motion for summary judgment). However, if it is 21 alleged, Defendants would very much challenge the cause of action via some form of dispositive 22 motion. 23 For this reason, the Complaint is fatally uncertain. 24 C. The FAC Does Not Indicate Which Causes of Action Are Alleged Against Which of the Three Named Defendants, Making It Fatally Uncertain. 25 La Salle is alleged to be to owner and Related is alleged to be the property manager of the 26 subject property. (FAC, p. 2.) It is alleged that Stacey Soloman "of United Legal, charged $57.00 27 for a successful attempt of service on 11/3/21." Allegedly, she had three unsuccessful attempts at 28 28895770.1:10784-1455 -5- MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS RELATED MANAGEMENT COMPANY AND LA SALLE PRESERVATION'S DEMURRER TO FIRST AMENDED COMPLAINT 1 service previous to that. (See FAC, p. 8 at top.) It appears from the balance of the allegations that 2 Ms. Soloman2 was a process server hired by the law firm that filed the unlawful detainer action. A 3 judgment in that matter dated December 2, 2021 is attached at page 86. 4 In light of the foregoing it is crucial to understand which causes of action (to the extent 5 they can be discerned) are alleged against which defendants. For example, is wrongful eviction 6 alleged against Related and LaSalle, or just Ms. Soloman? Both are plausible based on how the 7 FAC is drafted. If all causes are alleged against all defendants, this is not made clear in the 8 drafting. In fact, on page 4, the defendants are listed as Related, LaSalle, and "all of you." Does 9 that include Ms. Soloman? Is that intend to apply to all causes of action? It is unclear. The FAC 10 is factually uncertain for this reason. 11 D. The FAC Is Drafted in Such an Impermissibly Uncertain Way as to Provide WOOD, SMITH, HENNING & BERMAN LLP No Indication of Which Facts Are Alleged to Support Which Causes of Action. TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 12 1401 WILLOW PASS ROAD, SUITE 700 CONCORD, CALIFORNIA 94520-7982 Code of Civil Procedure section 425.10(a)(1) provides that a Complaint "shall contain" 13 Attorneys at Law "[a] statement of the facts constituting the cause of action, in ordinary and concise language." A 14 plaintiff must therefore plead such facts as are necessary "to acquaint a defendant with the nature, 15 source, and extent of [the plaintiff's] claims." (Doe v. City of Los Angeles (2007) 42 Cal.App.4th 16 531, 549-50 (complaint asserting claims for childhood sexual abuse must "plausibly allege" that 17 non-perpetrator defendant concealed its knowledge of perpetrator's history of prior misconduct 18 with minors).) 19 At page 4, the FAC shifts from the basic PLD-PI-001 form to PLD-PI-001(3). This second 20 form allows a plaintiff to articulate facts and arguments in support of any cause(s) of action for 21 "intentional tort." As a threshold matter, it should be noted that certain of the causes of action 22 above are not intentional torts—for instance, general negligence, nuisance, and breach of contract. 23 Therefore, it is unclear whether the factual allegations that begin at page 4 are to be read as 24 applying to or supporting these non-intentional tort causes of action. 25 /// 26 27 2 It is unlikely that he name is "Soloman" as opposed to "Solomon" but we use the name here as alleged in 28 the FAC. 28895770.1:10784-1455 -6- MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS RELATED MANAGEMENT COMPANY AND LA SALLE PRESERVATION'S DEMURRER TO FIRST AMENDED COMPLAINT 1 A discussed above, the FAC might be read to allege as many as 13 or 14 causes of action. 2 However, the allegations beginning at page 4 are not alleged to apply to any particular causes of 3 action. The form itself clearly states: "Use a separate cause of action form for each cause of 4 action." Plaintiff does not do this. Instead of using a separate form for each cause of action, 5 Plaintiff commences 139 pages of hand-written, mostly factual assertions. Of the attached pages, 6 approximately 135 either have no heading that would indicate to which cause of action they apply, 7 or are written on the generic MC-025 attachment form. 8 It is entirely unclear which facts are alleged to support which causes of action. If all facts 9 are incorporated for all causes of action, this is not specified. For instance, a cause of action for 10 fraud is alleged. Where in the mountain of alleged facts are the asserted fraudulent statements? 11 Who made them? Were they reliable upon? Even having gone through the exercise of reading all WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 12 the allegations in the FAC, these things are still not clear to Defendants. Defendants cannot 1401 WILLOW PASS ROAD, SUITE 700 CONCORD, CALIFORNIA 94520-7982 13 determine enough information in this regard to render a 430.10(e) challenge for failure to state a Attorneys at Law 14 claim. Defendants are not even able to challenge the specificity of the fraud allegation, because 15 the alleged fraudulent statements are not alleged. This creates fundamental uncertainty. 16 To state another example, the FAC alleges a cause of action for conspiracy. While there is 17 a reference to all defendants "working together," it is not alleged which of the defendants are 18 alleged to have conspired and which actions were conspired. 19 These types of uncertainties could possibly be resolved if a separate fact sheet was used for 20 each cause of action. Code of Civil Procedure section 425.10(a)(1) would require that here. As it 21 is however, the morass of factual allegations in the FAC make it impossible to understand or 22 respond to the claims. This demurrer for uncertainty is the best possible means for Defendants to 23 challenge the complaint on this basis. After all, "there is a remedy for undue prolixity: a demurrer 24 for uncertainty." (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841.) 25 E. The Complaint Is, at Times, Illegible, Which Is a Valid Basis for the Court to Deem It Fatally Uncertain under 431.10(f). 26 At a basic level, a significant portion of the complaint is illegible. One example among 27 many can be found at page 25, bottom third, where the very small writing wrapped around 28 28895770.1:10784-1455 -7- MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS RELATED MANAGEMENT COMPANY AND LA SALLE PRESERVATION'S DEMURRER TO FIRST AMENDED COMPLAINT 1 portions of the judicial counsel form are illegible to counsel for Defendants in the copy received. 2 Likewise for portions of page 26. The writing on left side of pages 7, 8, and other pages of the 3 FAC is cut off by the scanning process as result of being too far outside the margins. Several of 4 the attached documents, including at page 92, are illegible. This illegibility is reason alone to 5 sustain this demurrer on uncertainty grounds. 6 F. The Role of Michael Wright as Legal Representative Is Uncertain, Impeded Meet and Confer, and Potentially Violates State and Local Prohibitions. 7 At Page 47, and many other areas of the FAC, Michael Wright is described as "advocate 8 representative." There, he states that the Plaintiff Sharon Allen "could not find an attorney to 9 represent her." Mr. Wright, who clearly drafted the complaint, explains that he "had a job on shift 10 front desk clerk and because this fact ... was fully aware of superior court room [sic] legal 11 WOOD, SMITH, HENNING & BERMAN LLP experience." He then described a "documented contract agreement, explaining that I ... would be TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 12 1401 WILLOW PASS ROAD, SUITE 700 CONCORD, CALIFORNIA 94520-7982 the plaintiff's advocate and her representative, do all leg work (travel), production of 13 Attorneys at Law documentations and court filings and court room appearances etc. etc." The purported "contract 14 agreement" is included at page 75 of the FAC. It is clearly drafted by Mr. Wright and provides no 15 explanation as to why Ms. Allen needed legal assistance except that she doesn't "have time to do 16 the legal documentation." 17 The unauthorized practice of law is a crime under Business & Professions Code section 18 6125. Counsel for Defendants are concerned that Mr. Wright's representation of Sharon Allen 19 may run afoul of this and other state prohibitions on the practice of law by non-lawyers. This is a 20 particularly problematic here, where the complaint contains several averments by Mr. Wright 21 himself and was clearly drafted by him. 22 As it stands, Defendants were forced to meet and conferred with Mr. Wright in order to 23 comply with the requirements of Code of Civil Procedural section 430.41. This was only done 24