Preview
1 SCOTT FLAXMAN LAW
Scott A. Flaxman, Esq. SBN 241285
2
700 Larkspur Landing Circle, Suite #199 ELECTRONICALLY
3 Larkspur, California 94939 F I L E D
(415) 702-7032 Superior Court of California,
County of San Francisco
4 scott@scottflaxmanlaw.com
Attorney for Plaintiffs, Nasser S. Jalali, Alexandra Afsaneh Jalali 07/06/2020
5 Clerk of the Court
BY: EDNALEEN ALEGRE
Deputy Clerk
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7 NASSER S. JALALI, Case No.: CGC-20-583406
ALEXANDRA AFSANEH JALALI
8 PLAINTIFFS
VS
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10 FIVE STAR INVESTMENTS, LLC,
SHANGHAI COMMERCIAL BANK, LTD.
11 PLAINTIFFS’ MEMORANDUM OF
AND DOES 1 THROUGH 30, INCLUSIVE,
POINTS AND AUTHORITES IN
12 DEFENDANTS SUPPORT OF PLAINTIFFS’ MOTION
TO STRIKE DEFENDANT FIVE STAR
13 INVESTMENT, LLC’S DEMURRER TO
14 PLAINTIFFS’ VERIFIED COMPLAINT
15 Hearing Date: July 30, 2020
Time: 9:30 a.m.
16 Dept.: 501
17 Complaint Filed: March 3, 2020
Trial Date: Not Yet Set
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF PLAINTIFFS’ MOTION
28 TO STRIKE DEFENDANT FIVE STAR INVESTMENT, LLC’S DEMURRER TO PLAINTIFFS’ VERIFIED
COMPLAINT - 1
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TABLE OF CONTENTS
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I. INTRODUCTION........................................................................................................................... 4
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5 II. RELEVANT PROCEDURAL HISTORY AND FACTUAL BACKGROUND ........................ 5
6 III. DISCUSSION .................................................................................................................................. 6
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THE DEMURRER IS UNTIMELY HAVING BEEN FILED 110 DAYS AFTER SERVICE
8 OF SUMMONS AND DEFENDANT FIVE STAR INVESTMENTS, LLC DID NOT SEEK
OR RECEIVE LEAVE OF COURT TO FILE AN UNTIMELY DEMURRER ...................... 6
9 DEFANDANTS DEMURRER CONTAINS CONCLUSORY ALLEGATIONS NOT
SUPPPORTED BY EVIDENCE AND DEFENDANT MAKES FALSE ALLEGATIONS IN
10 ITS DEMURRER............................................................................................................................ 7
PLAINTIFFS ARE NEGATIVELY PREJUDICED BY THE UNTIMELY AND
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FRIVOLOUS DEMURRER HAVING TO SPEND TIME AND MONEY STRIKING AND
OPPOSING IT ................................................................................................................................ 8
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13 IV. CONCLUSION ............................................................................................................................... 9
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF PLAINTIFFS’ MOTION
28 TO STRIKE DEFENDANT FIVE STAR INVESTMENT, LLC’S DEMURRER TO PLAINTIFFS’ VERIFIED
COMPLAINT - 2
1 Table of Authorities
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California State Statutes
3 Cal Code Civ Proc § 585 ............................................................................................................................
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4 California Code Of Civil Procedure Section 585 ........................................................................................
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California Code of Civil Procedure § 436 ..................................................................................................
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California Evidence Code §§ 451 ...............................................................................................................
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF PLAINTIFFS’ MOTION
28 TO STRIKE DEFENDANT FIVE STAR INVESTMENT, LLC’S DEMURRER TO PLAINTIFFS’ VERIFIED
COMPLAINT - 3
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2 I. INTRODUCTION
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In this action, Defendant Five Star Investments, LLC (Defendant) has responded to
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Plaintiffs’ Verified Complaint dated March 3, 2020 by filing a Demurrer on June 30, 2020.
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(Defendant’s Demurrer or Demurrer). Defendant had 30 days to file a timely response to Plaintiffs’
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7 Complaint as was clearly noted on the Judicial Council of California form SUM-100 which is seen
8 as item 3 on this court’s register of actions as having been served on March 12, 2020.
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2020- SUMMONS ON COMPLAINT (TRANSACTION ID # 100102181),
10 05-06 PROOF OF SERVICE ONLY, FILED BY PLAINTIFF JALALI, NASSER
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S. JALALI, ALEXANDER AFSANEH SERVED MAR-12-2020,
SUBSTITUTE SERVICE ON CORPORATION, MAILING DATE MAR-
12 13-2020 AS TO DEFENDANT FIVE STAR INVESTMENTS, LLC
13 June 30, 2020 is one hundred and ten (110) days after March 12, 2020. Defendant did not
14 seek or obtain leave of this Court to file an untimely Demurrer. The Demurrer is meritless, contains
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conclusory and false allegations as detailed more fully below, was brought merely to delay and
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increase Plaintiffs’ costs. Plaintiffs brought their Complaint seek to regain access to the rear
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parking area of their home, to be able to continue to make repairs to the side of their home and to
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19 retain fire escape from their home as they have been doing for 18 continuous year, which
20 Defendant has very recently cut-off because Defendant wants to demolish Defendant’s building
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and build a much larger building that eliminates Plaintiffs’ access to Plaintiffs’ property. Plaintiffs
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now are now forced to spend even more time and money responding to Defendant’s frivolous and
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untimely Demurrer.
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF PLAINTIFFS’ MOTION
28 TO STRIKE DEFENDANT FIVE STAR INVESTMENT, LLC’S DEMURRER TO PLAINTIFFS’ VERIFIED
COMPLAINT - 4
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II. RELEVANT PROCEDURAL HISTORY AND FACTUAL BACKGROUND
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Plaintiffs filed their Verified Complaint on March 03, 2020. On June 16th, 2020 the court
4 directed that “CASE MANAGEMENT CONFERENCE OF JUL-01-2020 CONTINUED TO AUG-12-2020
AT 10:30 AM IN DEPARTMENT 610 TO OBTAIN AN ANSWER(S) FROM, OR ENTER DEFAULT(S)
5 AGAINST, DEFENDANT(S). NOTICE SENT BY COURT.”
6 On June 30, 2020, Plaintiffs filed a Request for Entry of Default with this Court.
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On June 30, 2020 at 5:29 p.m., Defendant sent to Plaintiffs’ attorney via
8 FileAndServeXpress an e-mail notification of Defendant’s Demurrer.
9 File & ServeXpress. The details for this transaction are listed below.
10 Court: CA Superior Court County of San Francisco-Civil
Case Name: Jalali, Nasser S et al vs Five Star Investments LLC et al
11 Case Number: CGC-20-583406
Transaction ID: 65737430
12 Document Title(s):
NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT FIVE STARS INVESTMENT
13 LLC TO PLAINTIFFS’ COMPLAINT (3 pages)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIVE
14 STARS INVESTMENT LLC TO PLAINTIFFS’ COMPLAINT (7 pages)
DECLARATION (MEET AND CONFER) OF PATRICK J. CONNOLLY IN SUPPORT OF
15 DEMURRER OF DEFENDANT FIVE STARS INVESTMENT LLC TO PLAINTIFFS’ COMPLAINT
(9 pages)
16 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER OF DEFENDANT FIVE
STARS INVESTMENT LLC TO PLAINTIFFS’ COMPLAINT (36 pages)
17 PROOF OF SERVICE (2 pages)
Authorized Date/Time: Jun 30 2020 5:29PM PDT
18 Authorizer: Patrick J Connolly
Authorizer's Organization: Utrecht & Lenvin LLP
19 Sending Parties:
Five Star Investments LLC
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On July 1, 2020, Plaintiffs filed an amended/corrected proof of service for their June 30,
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2020 Request for Entry of Default.
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF PLAINTIFFS’ MOTION
28 TO STRIKE DEFENDANT FIVE STAR INVESTMENT, LLC’S DEMURRER TO PLAINTIFFS’ VERIFIED
COMPLAINT - 5
1 III. DISCUSSION
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THE DEMURRER IS UNTIMELY HAVING BEEN FILED 110 DAYS AFTER
3 SERVICE OF SUMMONS AND DEFENDANT FIVE STAR INVESTMENTS,
LLC DID NOT SEEK OR RECEIVE LEAVE OF COURT TO FILE AN
4 UNTIMELY DEMURRER
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California Code of Civil Procedure Section 585 mandates: the clerk of the court shall
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enter default against defendants if no responsive pleading is filed with the clerk of the court
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within the time limit of the summons.
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In other actions, if the defendant has been served, other than by publication, and no answer,
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demurrer, notice of motion to strike of the character specified in subdivision (f), notice of motion
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12 to transfer pursuant to Section 396b, notice of motion to dismiss pursuant to Article 2 (commencing
13 with Section 583.210) of Chapter 1.5 of Title 8, notice of motion to quash service of summons or
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to stay or dismiss the action pursuant to Section 418.10 or notice of the filing of a petition for writ
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of mandate as provided in Section 418.10 has been filed with the clerk of the court within the time
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specified in the summons, or within further time as may be allowed, the clerk, upon written
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18 application of the plaintiff, shall enter the default of the defendant. The plaintiff thereafter may
19 apply to the court for the relief demanded in the complaint. (Cal Code Civ Proc § 585).
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Plaintiffs filed and properly served Defendant with a Verified Complaint and a Judicial
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Council of California form SUM-100 which states in part, “You have 30 CALENDAR DAYS
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after this summons and legal papers are served on you to file a written response at this court and
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24 have a copy served on the plaintiff. A letter or phone call will not protect you.” (Judicial Council
25 of California form SUM-100).
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF PLAINTIFFS’ MOTION
28 TO STRIKE DEFENDANT FIVE STAR INVESTMENT, LLC’S DEMURRER TO PLAINTIFFS’ VERIFIED
COMPLAINT - 6
1 Plaintiffs’ filed their Verified Complaint and Summons as detailed above on March 03,
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2020. The Summons was served on Defendant on March 12, 2020 as detailed above. Defendants
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did not file a responsive pleading within the time limit specified by the summons (30 days) but
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rather filed a Demurrer with the court clerk on June 30, 2020 which is one hundred and ten (110)
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6 days later.
7 California Code of Civil Procedure § 436(b) gives the court the explicit power to strike any
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pleading that violates any particular law governing the drawing or filing of pleadings. A rule of
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law which a matter in a pleading violates would ordinarily be subject to judicial notice [see
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California Evidence Code §§ 451, 452, 453]. The Demurrer must be stricken because it is
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12 untimely.
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DEFANDANTS DEMURRER CONTAINS CONCLUSORY
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ALLEGATIONS NOT SUPPPORTED BY EVIDENCE AND
15 DEFENDANT MAKES FALSE ALLEGATIONS IN ITS
DEMURRER
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Defendant’s Demurrer rests principally on the contradictory notion that Defendant Five
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Star Investments, LLC knows that Mr. and Mrs. Jalali failed to seek and obtain required permits
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needed to repair their property but failed to do so. Defendant Five Star Investments, LLC also
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21 contends that it had no knowledge that Plaintiffs did repair work on the east side of their building
22 that required the use of the driveway at issue. If Defendant Five Star Investments, LLC had no
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knowledge that Plaintiffs did repair work on east side of Plaintiff’s property making use of the
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driveway at issue in this case, then how does Defendant Five Star Investments, LLC know
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Plaintiffs made repair work using the driveway that required a permit but failed to obtain the
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27 required permits?
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF PLAINTIFFS’ MOTION
28 TO STRIKE DEFENDANT FIVE STAR INVESTMENT, LLC’S DEMURRER TO PLAINTIFFS’ VERIFIED
COMPLAINT - 7
1 In other words, Defendant Five Star Investments, LLC has blundered into admitting they
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were aware of Plaintiffs’ repair work to the east side of Plaintiffs’ property which required the use
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of the driveway at issue in this case.
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Defendant’s assertions are obviously nonsense cooked up solely in a non-meritorious effort
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6 to drive up Plaintiffs’ expenses and waste Plaintiffs’ time. Defendant Five Star Investments, LLC
7 is wasting everyone’s time including this Court’s.
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Defendant also falsely alleges that Plaintiffs performed work that in fact actually does
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require a permit and that Plaintiffs did not obtain permits to do work on the east side of Plaintiffs’
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property making use of the driveway at issue. Permits are a matter of public record. Plaintiffs have
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12 done work with permits on their property when a permit is required and have sought and obtained
13 those required permits. (See: Plaintiff Nasser Jalali’s Declaration in Support of Plaintiffs’
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Opposition to Defendant’s Demurrer to Plaintiffs’ Verified Complaint).
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16 PLAINTIFFS ARE NEGATIVELY PREJUDICED BY THE
UNTIMELY AND FRIVOLOUS DEMURRER HAVING TO SPEND
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TIME AND MONEY STRIKING AND OPPOSING IT
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Plaintiffs have had to expend considerable time and money bringing this Motion to Strike
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and drafting their Opposition to Defendant’s Demurrer because the Demurrer is ostensibly on the
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21 Court’s calendar per the Court’s Register of Actions. Plaintiffs’ costs and attorney’s fees will be
22 addressed in more detail at a later time in a motion to recover costs and attorney fees and for
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sanctions against Defendant for bringing their frivolous and untimely Demurrer.
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF PLAINTIFFS’ MOTION
28 TO STRIKE DEFENDANT FIVE STAR INVESTMENT, LLC’S DEMURRER TO PLAINTIFFS’ VERIFIED
COMPLAINT - 8
1 IV. CONCLUSION
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3 For all of the foregoing reasons, Defendant Five Star Investments, LLC’s Demurrer to
4 Plaintiffs’ Verified Complaint must be stricken.
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Dated: July 3, 2020
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Respectfully submitted,
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Scott Flaxman Law
24 By: /s/ Scott A. Flaxman
Attorney for Plaintiffs
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF PLAINTIFFS’ MOTION
28 TO STRIKE DEFENDANT FIVE STAR INVESTMENT, LLC’S DEMURRER TO PLAINTIFFS’ VERIFIED
COMPLAINT - 9
Preview
1 SCOTT FLAXMAN LAW Scott A. Flaxman, Esq. SBN 241285 2 700 Larkspur Landing Circle, Suite #199 ELECTRONICALLY 3 Larkspur, California 94939 F I L E D (415) 702-7032 Superior Court of California, County of San Francisco 4 scott@scottflaxmanlaw.com Attorney for Plaintiffs, Nasser S. Jalali, Alexandra Afsaneh Jalali 07/06/2020 5 Clerk of the Court BY: EDNALEEN ALEGRE Deputy Clerk 6 7 NASSER S. JALALI, Case No.: CGC-20-583406 ALEXANDRA AFSANEH JALALI 8 PLAINTIFFS VS 9 10 FIVE STAR INVESTMENTS, LLC, SHANGHAI COMMERCIAL BANK, LTD. 11 PLAINTIFFS’ MEMORANDUM OF AND DOES 1 THROUGH 30, INCLUSIVE, POINTS AND AUTHORITES IN 12 DEFENDANTS SUPPORT OF PLAINTIFFS’ MOTION TO STRIKE DEFENDANT FIVE STAR 13 INVESTMENT, LLC’S DEMURRER TO 14 PLAINTIFFS’ VERIFIED COMPLAINT 15 Hearing Date: July 30, 2020 Time: 9:30 a.m. 16 Dept.: 501 17 Complaint Filed: March 3, 2020 Trial Date: Not Yet Set 18 19 20 21 22 23 24 25 26 27 PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF PLAINTIFFS’ MOTION 28 TO STRIKE DEFENDANT FIVE STAR INVESTMENT, LLC’S DEMURRER TO PLAINTIFFS’ VERIFIED COMPLAINT - 1 1 2 TABLE OF CONTENTS 3 I. INTRODUCTION........................................................................................................................... 4 4 5 II. RELEVANT PROCEDURAL HISTORY AND FACTUAL BACKGROUND ........................ 5 6 III. DISCUSSION .................................................................................................................................. 6 7 THE DEMURRER IS UNTIMELY HAVING BEEN FILED 110 DAYS AFTER SERVICE 8 OF SUMMONS AND DEFENDANT FIVE STAR INVESTMENTS, LLC DID NOT SEEK OR RECEIVE LEAVE OF COURT TO FILE AN UNTIMELY DEMURRER ...................... 6 9 DEFANDANTS DEMURRER CONTAINS CONCLUSORY ALLEGATIONS NOT SUPPPORTED BY EVIDENCE AND DEFENDANT MAKES FALSE ALLEGATIONS IN 10 ITS DEMURRER............................................................................................................................ 7 PLAINTIFFS ARE NEGATIVELY PREJUDICED BY THE UNTIMELY AND 11 FRIVOLOUS DEMURRER HAVING TO SPEND TIME AND MONEY STRIKING AND OPPOSING IT ................................................................................................................................ 8 12 13 IV. CONCLUSION ............................................................................................................................... 9 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF PLAINTIFFS’ MOTION 28 TO STRIKE DEFENDANT FIVE STAR INVESTMENT, LLC’S DEMURRER TO PLAINTIFFS’ VERIFIED COMPLAINT - 2 1 Table of Authorities 2 California State Statutes 3 Cal Code Civ Proc § 585 ............................................................................................................................ 4 4 California Code Of Civil Procedure Section 585 ........................................................................................ 4 California Code of Civil Procedure § 436 .................................................................................................. 5 5 California Evidence Code §§ 451 ............................................................................................................... 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF PLAINTIFFS’ MOTION 28 TO STRIKE DEFENDANT FIVE STAR INVESTMENT, LLC’S DEMURRER TO PLAINTIFFS’ VERIFIED COMPLAINT - 3 1 2 I. INTRODUCTION 3 In this action, Defendant Five Star Investments, LLC (Defendant) has responded to 4 Plaintiffs’ Verified Complaint dated March 3, 2020 by filing a Demurrer on June 30, 2020. 5 (Defendant’s Demurrer or Demurrer). Defendant had 30 days to file a timely response to Plaintiffs’ 6 7 Complaint as was clearly noted on the Judicial Council of California form SUM-100 which is seen 8 as item 3 on this court’s register of actions as having been served on March 12, 2020. 9 2020- SUMMONS ON COMPLAINT (TRANSACTION ID # 100102181), 10 05-06 PROOF OF SERVICE ONLY, FILED BY PLAINTIFF JALALI, NASSER 11 S. JALALI, ALEXANDER AFSANEH SERVED MAR-12-2020, SUBSTITUTE SERVICE ON CORPORATION, MAILING DATE MAR- 12 13-2020 AS TO DEFENDANT FIVE STAR INVESTMENTS, LLC 13 June 30, 2020 is one hundred and ten (110) days after March 12, 2020. Defendant did not 14 seek or obtain leave of this Court to file an untimely Demurrer. The Demurrer is meritless, contains 15 conclusory and false allegations as detailed more fully below, was brought merely to delay and 16 increase Plaintiffs’ costs. Plaintiffs brought their Complaint seek to regain access to the rear 17 parking area of their home, to be able to continue to make repairs to the side of their home and to 18 19 retain fire escape from their home as they have been doing for 18 continuous year, which 20 Defendant has very recently cut-off because Defendant wants to demolish Defendant’s building 21 and build a much larger building that eliminates Plaintiffs’ access to Plaintiffs’ property. Plaintiffs 22 now are now forced to spend even more time and money responding to Defendant’s frivolous and 23 untimely Demurrer. 24 25 26 27 PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF PLAINTIFFS’ MOTION 28 TO STRIKE DEFENDANT FIVE STAR INVESTMENT, LLC’S DEMURRER TO PLAINTIFFS’ VERIFIED COMPLAINT - 4 1 II. RELEVANT PROCEDURAL HISTORY AND FACTUAL BACKGROUND 2 3 Plaintiffs filed their Verified Complaint on March 03, 2020. On June 16th, 2020 the court 4 directed that “CASE MANAGEMENT CONFERENCE OF JUL-01-2020 CONTINUED TO AUG-12-2020 AT 10:30 AM IN DEPARTMENT 610 TO OBTAIN AN ANSWER(S) FROM, OR ENTER DEFAULT(S) 5 AGAINST, DEFENDANT(S). NOTICE SENT BY COURT.” 6 On June 30, 2020, Plaintiffs filed a Request for Entry of Default with this Court. 7 On June 30, 2020 at 5:29 p.m., Defendant sent to Plaintiffs’ attorney via 8 FileAndServeXpress an e-mail notification of Defendant’s Demurrer. 9 File & ServeXpress. The details for this transaction are listed below. 10 Court: CA Superior Court County of San Francisco-Civil Case Name: Jalali, Nasser S et al vs Five Star Investments LLC et al 11 Case Number: CGC-20-583406 Transaction ID: 65737430 12 Document Title(s): NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT FIVE STARS INVESTMENT 13 LLC TO PLAINTIFFS’ COMPLAINT (3 pages) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FIVE 14 STARS INVESTMENT LLC TO PLAINTIFFS’ COMPLAINT (7 pages) DECLARATION (MEET AND CONFER) OF PATRICK J. CONNOLLY IN SUPPORT OF 15 DEMURRER OF DEFENDANT FIVE STARS INVESTMENT LLC TO PLAINTIFFS’ COMPLAINT (9 pages) 16 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER OF DEFENDANT FIVE STARS INVESTMENT LLC TO PLAINTIFFS’ COMPLAINT (36 pages) 17 PROOF OF SERVICE (2 pages) Authorized Date/Time: Jun 30 2020 5:29PM PDT 18 Authorizer: Patrick J Connolly Authorizer's Organization: Utrecht & Lenvin LLP 19 Sending Parties: Five Star Investments LLC 20 On July 1, 2020, Plaintiffs filed an amended/corrected proof of service for their June 30, 21 2020 Request for Entry of Default. 22 23 24 25 26 27 PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF PLAINTIFFS’ MOTION 28 TO STRIKE DEFENDANT FIVE STAR INVESTMENT, LLC’S DEMURRER TO PLAINTIFFS’ VERIFIED COMPLAINT - 5 1 III. DISCUSSION 2 THE DEMURRER IS UNTIMELY HAVING BEEN FILED 110 DAYS AFTER 3 SERVICE OF SUMMONS AND DEFENDANT FIVE STAR INVESTMENTS, LLC DID NOT SEEK OR RECEIVE LEAVE OF COURT TO FILE AN 4 UNTIMELY DEMURRER 5 California Code of Civil Procedure Section 585 mandates: the clerk of the court shall 6 enter default against defendants if no responsive pleading is filed with the clerk of the court 7 within the time limit of the summons. 8 9 In other actions, if the defendant has been served, other than by publication, and no answer, 10 demurrer, notice of motion to strike of the character specified in subdivision (f), notice of motion 11 12 to transfer pursuant to Section 396b, notice of motion to dismiss pursuant to Article 2 (commencing 13 with Section 583.210) of Chapter 1.5 of Title 8, notice of motion to quash service of summons or 14 to stay or dismiss the action pursuant to Section 418.10 or notice of the filing of a petition for writ 15 of mandate as provided in Section 418.10 has been filed with the clerk of the court within the time 16 specified in the summons, or within further time as may be allowed, the clerk, upon written 17 18 application of the plaintiff, shall enter the default of the defendant. The plaintiff thereafter may 19 apply to the court for the relief demanded in the complaint. (Cal Code Civ Proc § 585). 20 Plaintiffs filed and properly served Defendant with a Verified Complaint and a Judicial 21 Council of California form SUM-100 which states in part, “You have 30 CALENDAR DAYS 22 after this summons and legal papers are served on you to file a written response at this court and 23 24 have a copy served on the plaintiff. A letter or phone call will not protect you.” (Judicial Council 25 of California form SUM-100). 26 27 PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF PLAINTIFFS’ MOTION 28 TO STRIKE DEFENDANT FIVE STAR INVESTMENT, LLC’S DEMURRER TO PLAINTIFFS’ VERIFIED COMPLAINT - 6 1 Plaintiffs’ filed their Verified Complaint and Summons as detailed above on March 03, 2 2020. The Summons was served on Defendant on March 12, 2020 as detailed above. Defendants 3 did not file a responsive pleading within the time limit specified by the summons (30 days) but 4 rather filed a Demurrer with the court clerk on June 30, 2020 which is one hundred and ten (110) 5 6 days later. 7 California Code of Civil Procedure § 436(b) gives the court the explicit power to strike any 8 pleading that violates any particular law governing the drawing or filing of pleadings. A rule of 9 law which a matter in a pleading violates would ordinarily be subject to judicial notice [see 10 California Evidence Code §§ 451, 452, 453]. The Demurrer must be stricken because it is 11 12 untimely. 13 DEFANDANTS DEMURRER CONTAINS CONCLUSORY 14 ALLEGATIONS NOT SUPPPORTED BY EVIDENCE AND 15 DEFENDANT MAKES FALSE ALLEGATIONS IN ITS DEMURRER 16 17 Defendant’s Demurrer rests principally on the contradictory notion that Defendant Five 18 Star Investments, LLC knows that Mr. and Mrs. Jalali failed to seek and obtain required permits 19 needed to repair their property but failed to do so. Defendant Five Star Investments, LLC also 20 21 contends that it had no knowledge that Plaintiffs did repair work on the east side of their building 22 that required the use of the driveway at issue. If Defendant Five Star Investments, LLC had no 23 knowledge that Plaintiffs did repair work on east side of Plaintiff’s property making use of the 24 driveway at issue in this case, then how does Defendant Five Star Investments, LLC know 25 Plaintiffs made repair work using the driveway that required a permit but failed to obtain the 26 27 required permits? PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF PLAINTIFFS’ MOTION 28 TO STRIKE DEFENDANT FIVE STAR INVESTMENT, LLC’S DEMURRER TO PLAINTIFFS’ VERIFIED COMPLAINT - 7 1 In other words, Defendant Five Star Investments, LLC has blundered into admitting they 2 were aware of Plaintiffs’ repair work to the east side of Plaintiffs’ property which required the use 3 of the driveway at issue in this case. 4 Defendant’s assertions are obviously nonsense cooked up solely in a non-meritorious effort 5 6 to drive up Plaintiffs’ expenses and waste Plaintiffs’ time. Defendant Five Star Investments, LLC 7 is wasting everyone’s time including this Court’s. 8 Defendant also falsely alleges that Plaintiffs performed work that in fact actually does 9 require a permit and that Plaintiffs did not obtain permits to do work on the east side of Plaintiffs’ 10 property making use of the driveway at issue. Permits are a matter of public record. Plaintiffs have 11 12 done work with permits on their property when a permit is required and have sought and obtained 13 those required permits. (See: Plaintiff Nasser Jalali’s Declaration in Support of Plaintiffs’ 14 Opposition to Defendant’s Demurrer to Plaintiffs’ Verified Complaint). 15 16 PLAINTIFFS ARE NEGATIVELY PREJUDICED BY THE UNTIMELY AND FRIVOLOUS DEMURRER HAVING TO SPEND 17 TIME AND MONEY STRIKING AND OPPOSING IT 18 Plaintiffs have had to expend considerable time and money bringing this Motion to Strike 19 and drafting their Opposition to Defendant’s Demurrer because the Demurrer is ostensibly on the 20 21 Court’s calendar per the Court’s Register of Actions. Plaintiffs’ costs and attorney’s fees will be 22 addressed in more detail at a later time in a motion to recover costs and attorney fees and for 23 sanctions against Defendant for bringing their frivolous and untimely Demurrer. 24 25 26 27 PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF PLAINTIFFS’ MOTION 28 TO STRIKE DEFENDANT FIVE STAR INVESTMENT, LLC’S DEMURRER TO PLAINTIFFS’ VERIFIED COMPLAINT - 8 1 IV. CONCLUSION 2 3 For all of the foregoing reasons, Defendant Five Star Investments, LLC’s Demurrer to 4 Plaintiffs’ Verified Complaint must be stricken. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Dated: July 3, 2020 21 Respectfully submitted, 22 23 Scott Flaxman Law 24 By: /s/ Scott A. Flaxman Attorney for Plaintiffs 25 o 26 27 PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF PLAINTIFFS’ MOTION 28 TO STRIKE DEFENDANT FIVE STAR INVESTMENT, LLC’S DEMURRER TO PLAINTIFFS’ VERIFIED COMPLAINT - 9