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Scott E. Jenny, Esq. — State Bar No. 166111
JENNY & JENNY, LLP
736 Ferry Street
Martinez, California 94553
Telephone: Cao
Facsimile: 925) 228-2841
Attorney for Defendant
D.E. ILRESTAURANTS, INC. and
and D.E. RESTAURANTS, INC.
IN THE SUPERIOR COURT OF THE STATE CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
UNLIMITED JURISDICTION
CITY OF SANTA CLARA, a California
Charter City
Plaintiff,
vs.
D.E. II RESTAURANTS, INC., a California
corporation; and DOES 1-50,
Defendants.
D.E. II RESTAURANTS, INC. and D.E.
RESTAURANTS, INC.
Cross-Complainants,
vs.
CITY OF SANTA CLARA, a California
Charter City and ROES 1| through 10,
inclusive,
Cross-Defendants.
) Case No.: 19CV340508
)
) DEFENDANT’S BRIEF REGARDING
) WAIVER OF PRETEXTUAL
) ARGUMENT
TT SS SS SS SDL
alz
DEFENDANT’S BRIEF REGARDING WAIVER OF PRETEXTUAL ARGUMENT20
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Defendants should be allowed to present evidence for pretext or predetermination based
on the information in the Answer they filed. The Answer filed mentions pretext on page 8, lines
3-4 [t]herefore, the Notice and the RON are false, pretextual, misleading, flawed and void, Page
8 lines 27-28 “here, this means that the RON Notice referring to this Project as a mere road
relocation project is again pretextual” (Emphasis added). The issue of pretext, or
predetermination, was mentioned three times in the filed Answer, providing plaintiff with
adequate notice of this theory.
Plaintiff could have demurred to the Answer as vague. Plaintiff chose not to demur to
this theory. Neither did plaintiff conduct discovery on the issue.
As stated in Jones v. Awad (2019) 39 Cal.App.5™ 1200 citing Howard v. OmniHotels
Management Corp. (2012) 203 Cal.Appp.4" 403, 421 “courts are encouraged to take
a liberal approach in determining the scope of the pleadings, so long as those pleadings provide
adequate notice to the opposing party of the theories on which relief is generally being
sought. “The test is whether such a particular theory or defense is one that the opposing party
could have reasonably anticipated would be pursued, and whether a request for leave to amend
accordingly would likely have been granted.” In its MIL to Exclude Evidence or Argument
Concerning Matters Outside the Certified Administrative Record, the City argues against the
predetermination defense, so it had adequate notice that that affirmative defense would be raised.
The fact that the plaintiff purposefully or negligently wrongly defined the Project should
not allow it to take advantage of the equitable concept of waiver, to the detriment of the property
owner whose property is being taken. Had the plaintiff properly identified the Project as the
CityPlace Project, the issue of pretext and predetermination would have been easier to plead with|
specificity by the time the Answer was due. The City’s incorrect naming of the Project should
not be rewarded with a successful waiver argument.
California Code of Civil Procedure § 430.80 states that an objection is waived when a
party “fails to object to the pleading, either by demurrer or answer.” This has not happened here.
As stated above, the Answer filed mentions pretext as an objection. Because the objection was
raised in the Answer filed, it has not been waived.
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DEFENDANT’S BRIEF REGARDING WAIVER OF PRETEXTUAL ARGUMENT20
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Defendants seek to amend the Answer according to proof. The City did not demurrer to
the Answer, nor did the City seek discovery with regard to the “pretext” issue brought up in the
Answer. Code of Civil Procedure §576 states that “any judge, at any time before or after
commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may
allow the amendment of any pleading or pretrial conference order”. As stated in “under Code
Civ. Proc., § 576, the decision to permit amendment to pleadings during the course of trial is
within the trial court's discretion. “California courts have been extremely liberal in allowing such
amendments to conform to proof.” General Credit Corp v. Pichel, 44 Cal.App.3d 844, 849. The|
court should be guided by two general principles: first, whether facts or legal theories are being
changed; and second, whether the opposing party will be prejudiced by the proposed
amendment. Here, no facts are being changed, and the legal theory of pretext was discussed in
the Answer filed by the defendants. In California, “liberal rules have been applied when
considering allowance of amendments at trial, or even after trial, to pleading in order to conform
to proof.” Id.
In its Motion in Limine to Exclude Evidence or Argument Concerning Matters Outside
the Certified Administrative Record, the City cites n. 11 to the case Council of San Benito
County Governments v. Hollister Inn, Inc. (2012) 209 Cal.App.4" 473, 485. Inn. 11 the Court
states “subject to the power of the court to permit an amendment of the answer, if the
defendant fails to object to the complaint, either by demurrer or answer, he is deemed to
have waived the objection.” (Emphasis added). Thus, in furtherance of justice, the defendants
should be allowed to amend their Answer.
//1
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DEFENDANT’S BRIEF REGARDING WAIVER OF PRETEXTUAL ARGUMENT19
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The City chose not to demurrer to the issue of pretext, nor conduct any discovery on the
issue, and cannot now during trial claim prejudice. In the furtherance of justice, defendant
should be allowed to amend the Answer with regard to the issue of pretext and predetermination.
The issue has not been waived and leave to amend should be granted.
DATED: _| | 6 2019 JENNY & JENNY, LLP
(nO
SCOTT E. JENNY,
D.E. IJ RESTAURANTS, INC. and D.E.
RESTAURANTS, INC.
Ae
DEFENDANT’S BRIEF REGARDING WAIVER OF PRETEXTUAL ARGUMENT
Preview
20 21 22 23 24 25 26 27 28 Scott E. Jenny, Esq. — State Bar No. 166111 JENNY & JENNY, LLP 736 Ferry Street Martinez, California 94553 Telephone: Cao Facsimile: 925) 228-2841 Attorney for Defendant D.E. ILRESTAURANTS, INC. and and D.E. RESTAURANTS, INC. IN THE SUPERIOR COURT OF THE STATE CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION CITY OF SANTA CLARA, a California Charter City Plaintiff, vs. D.E. II RESTAURANTS, INC., a California corporation; and DOES 1-50, Defendants. D.E. II RESTAURANTS, INC. and D.E. RESTAURANTS, INC. Cross-Complainants, vs. CITY OF SANTA CLARA, a California Charter City and ROES 1| through 10, inclusive, Cross-Defendants. ) Case No.: 19CV340508 ) ) DEFENDANT’S BRIEF REGARDING ) WAIVER OF PRETEXTUAL ) ARGUMENT TT SS SS SS SDL alz DEFENDANT’S BRIEF REGARDING WAIVER OF PRETEXTUAL ARGUMENT20 21 22 23 24 25 26 27 28 Defendants should be allowed to present evidence for pretext or predetermination based on the information in the Answer they filed. The Answer filed mentions pretext on page 8, lines 3-4 [t]herefore, the Notice and the RON are false, pretextual, misleading, flawed and void, Page 8 lines 27-28 “here, this means that the RON Notice referring to this Project as a mere road relocation project is again pretextual” (Emphasis added). The issue of pretext, or predetermination, was mentioned three times in the filed Answer, providing plaintiff with adequate notice of this theory. Plaintiff could have demurred to the Answer as vague. Plaintiff chose not to demur to this theory. Neither did plaintiff conduct discovery on the issue. As stated in Jones v. Awad (2019) 39 Cal.App.5™ 1200 citing Howard v. OmniHotels Management Corp. (2012) 203 Cal.Appp.4" 403, 421 “courts are encouraged to take a liberal approach in determining the scope of the pleadings, so long as those pleadings provide adequate notice to the opposing party of the theories on which relief is generally being sought. “The test is whether such a particular theory or defense is one that the opposing party could have reasonably anticipated would be pursued, and whether a request for leave to amend accordingly would likely have been granted.” In its MIL to Exclude Evidence or Argument Concerning Matters Outside the Certified Administrative Record, the City argues against the predetermination defense, so it had adequate notice that that affirmative defense would be raised. The fact that the plaintiff purposefully or negligently wrongly defined the Project should not allow it to take advantage of the equitable concept of waiver, to the detriment of the property owner whose property is being taken. Had the plaintiff properly identified the Project as the CityPlace Project, the issue of pretext and predetermination would have been easier to plead with| specificity by the time the Answer was due. The City’s incorrect naming of the Project should not be rewarded with a successful waiver argument. California Code of Civil Procedure § 430.80 states that an objection is waived when a party “fails to object to the pleading, either by demurrer or answer.” This has not happened here. As stated above, the Answer filed mentions pretext as an objection. Because the objection was raised in the Answer filed, it has not been waived. -2- DEFENDANT’S BRIEF REGARDING WAIVER OF PRETEXTUAL ARGUMENT20 21 22 23 24 25 26 27 28 Defendants seek to amend the Answer according to proof. The City did not demurrer to the Answer, nor did the City seek discovery with regard to the “pretext” issue brought up in the Answer. Code of Civil Procedure §576 states that “any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order”. As stated in “under Code Civ. Proc., § 576, the decision to permit amendment to pleadings during the course of trial is within the trial court's discretion. “California courts have been extremely liberal in allowing such amendments to conform to proof.” General Credit Corp v. Pichel, 44 Cal.App.3d 844, 849. The| court should be guided by two general principles: first, whether facts or legal theories are being changed; and second, whether the opposing party will be prejudiced by the proposed amendment. Here, no facts are being changed, and the legal theory of pretext was discussed in the Answer filed by the defendants. In California, “liberal rules have been applied when considering allowance of amendments at trial, or even after trial, to pleading in order to conform to proof.” Id. In its Motion in Limine to Exclude Evidence or Argument Concerning Matters Outside the Certified Administrative Record, the City cites n. 11 to the case Council of San Benito County Governments v. Hollister Inn, Inc. (2012) 209 Cal.App.4" 473, 485. Inn. 11 the Court states “subject to the power of the court to permit an amendment of the answer, if the defendant fails to object to the complaint, either by demurrer or answer, he is deemed to have waived the objection.” (Emphasis added). Thus, in furtherance of justice, the defendants should be allowed to amend their Answer. //1 //1 /// 3+ DEFENDANT’S BRIEF REGARDING WAIVER OF PRETEXTUAL ARGUMENT19 20 21 22 23 24 25 26 27 28 The City chose not to demurrer to the issue of pretext, nor conduct any discovery on the issue, and cannot now during trial claim prejudice. In the furtherance of justice, defendant should be allowed to amend the Answer with regard to the issue of pretext and predetermination. The issue has not been waived and leave to amend should be granted. DATED: _| | 6 2019 JENNY & JENNY, LLP (nO SCOTT E. JENNY, D.E. IJ RESTAURANTS, INC. and D.E. RESTAURANTS, INC. Ae DEFENDANT’S BRIEF REGARDING WAIVER OF PRETEXTUAL ARGUMENT