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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
MINUTE ORDER
San Francisco Pizza, Inc et al vsVietnam Town Hearing Start Time; 9:00 AM
Condominium Owners Association, Inc et al
17CV318151 Hearing Type: Hearing: Demurrer
Date of Hearing: 10/02/2018 Comments:
Heard By: Kirwan, Peter Location: Department 19
Courtroom Reporter: -
No Court Reporter Courtroom Clerk: Ingrid C Stewart
Court Interpreter:
Court Investigator:
Parties Present: Future Hearings:
Exhibits:
-
Counsel, Tom Fama appearing for defendant Michael Johnson.
Counsel requested clarification of court's tentative ruling. Another proceeding affecting same case, the court
allowed October 30 for leave to amend and counsel is asking for the same consideration.
Court grants request: The Tentative Ruling is modified and adopted. See below:
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Case Name: San Francisco Pizza, Vietnam Town Condominium
|nc., et al. v. Owners Association, |nc., et al.
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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
MINUTE ORDER
Case No.2 18CV318151
I.Factual Background
This action arises from a failed attempt to open a restaurant in a commercial condominium complex. The
operative FirstAmended Complaint (FAC )was filed by plaintiffsTan Nguyen (Tan ), Nghia Nguyen, Kim Thuy
Ho ( Ho )
(collectively the Owners ),the owners of the condominium unit, and San Francisco Pizza, Inc. ( San
Francisco Pizza ), the restaurant renting the unit (collectively Plaintiffs
),against defendants Vietnam Town
Condominium Owners Association ( VTCOA ), the commercial condominium association; Matrix Association
Management, the VTCOA s property manager; David Alvarado ( Alvarado ), a Matrix employee responsible for
managing the Vietnam Town condominium complex; Joseph Nguyen, Khanh Cao Huu, Joany Yuin (Yuin ), and
Ngoc Bui, members of the VTCOA board; Lap T. Tang (Tang ), the VTCOA s original developer; and Michael
Johnson (Johnson ), the Owners real estate agent.
As alleged in the FAC, Plaintiffs engaged Johnson to purchase a condominium unit known as Unit 9015 (the
Unit ), which is located at 999 Story Road, San Jose, California and is part of the Vietnam Town condominium
complex (the Complex ). (FAC, 1, 12.) At that time, they specifically told Johnson they wanted to purchase
the Unit to open a restaurant. (Id. at 12.) Johnson represented he was very familiar with the units as he
himself owned one and further stated there were no restrictions on operating a restaurant in the Unit. (|bid.)
Before escrow closed, Plaintiffs retained the services of an architect who examined the Unit in Johnson s
presence, discussed a preliminary restaurant floor plan with him, and talked with him about using a gas line
to supply gas for kitchen appliances. (|bid.)Johnson also informed Plaintiffsof another tenant at the Complex
who had built a Korean barbeque restaurant and was supplied with a gas line for its use. (|bid.)
In reliance on these representations, Plaintiffspurchased the Unit and prepared to build a pizza restaurant
there. (See Id. at 13-14.) During these preparations, one of the Owners, Ho, contacted VTCOA board
member Yuin to obtain approval to use the Unit as a restaurant. (Id. at 14.) Yuin informed Ho she should
contact Alvarado with any questions. (|bid.)Ho contacted Alvarado and sought written permission from the
VTCOA board for the installation of a gas line to the Unit. (|bid.) Alvarado orally informed Plaintiffs the Unit
was approved for use as a restaurant and that the gas lines and meters serving the building, which were
owned by the VTCOA, could be connected to units operating as restaurants. (|bid.) Subsequently, Plaintiffs
sent Alvarado a draft letter from their counsel that included a statement they had performed all necessary
steps to obtain gas line approval from the VTCOA and PG&E.
Ibid.) Alvarado made a number of substantive changes and additions to the letter but did not dispute the
statement Plaintiffs had taken all necessary steps to obtain approval. (Ibid.)His changes were incorporated
and Plaintiffs believe this letter was forwarded to the VTCOA board. (Ibid.) This approval process was
consistent with Plaintiffs belief that, for three years or more, the VTCOA has allowed units to be converted
into restaurants and supplied building gas lines for their use without any formal process or procedure. (Id. at
15.)
|n reliance on Alvarado s representations, San Francisco Pizza spent in excess of $500,000 making tenant
improvements to construct the restaurant. (Id. at 17.) Plaintiffs also hired a contractor to work with PG&E to
install a gas line from one of the meters in the building s common areas to the Unit. (Ibid.) This gas line was
then tested and approved by the City of San Jose. (Ibid.) Around this time, Plaintiffs and the VTCOA were sued
by another party for trespass, breach of contract, interference, and injunctive and declaratory relief. (Id. at
19.) The VTCOA and this party settled the matter and the case was voluntarily dismissed. (Ibid.)
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Plaintiffs were preparing for a soft opening of the restaurant when Tang, the VTCOA developer, and one of
the VTCOA board members disconnected the gas line to the Unit. (Id. at 20.) They also precluded Plaintiffs
contractors from accessing the common area to reconnect the line. (|bid.) These actions were approved of or
ratified by the VTCOA board. (|bid.)
The FAC asserts nine causes of action for: (1) trespass; (2) conversion; (3) intentional interference with
prospective economic advantage; (4) breach of contract; (5) declaratory relief;(6) fraud; (7) negligent
misrepresentation; (8) civilextortion; and (9) unlawful business practices.
Currently before the Court isJohnson s demurrer, which is accompanied by a request for judicial notice. The
Owners and San Francisco Pizza both oppose the demurrer. The Owners filed a request forjudicial notice in
support of their opposition.
II.Requests for Judicial Notice
A. Johnson s Request
Johnson seeks judicial notice of the FAC and two deeds related to the ownership of the Unit.
With respect to the FAC, under Evidence Code section 452 (Section 452 ), subdivision (d), court records are
generally proper subjects ofjudicial notice. However, judicial notice of the FAC is unnecessary because it is
the pleading under review and, as such, must be considered by the Court. (See Paul v. Patton (2015) 235
Cal.App.4th 1088, 1091, fn. 1.)
As for the deeds, they are recorded documents and, thus, generally judicially noticeable under Section 452,
subdivision (h) as facts not reasonably subject to dispute and capable of immediate and accurate
determination by resort to sources of reasonably indisputable accuracy. (See Fontenot v. Wells Fargo Bank,
N.A. (2011) 198 Cal.App.4th 256, 264-265, disapproved of on other grounds in Yvanova v. New Century
Mortg. Corp. (2016) 62 Ca|.4th 919.) With that said, a court need not take judicial notice of a matter unless it
isnecessary, helpful, or relevant. (Jordache Enterprises, Inc. v.Brobeck, Phleger & Harrison (1998) 18 Ca|.4th
739, 748, fn. 6.) Here, Johnson only refers to these deeds once in the factual background section of his
memorandum. Specifically, he states the deeds suggest a potential break in the chain of title between Tan,
the original purchaser of the Unit, and the Owners who purport to currently own it. He does not, however,
discuss this issue further or reference the deeds relative to the arguments advanced on demurrer. As such,
judicial notice of the deeds is neither helpful nor necessary.
Accordingly, Johnson s request for judicial notice is DENIED in its entirety.
B. The Owners Request
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The Owners request judicial notice of the memorandum of points and authorities filed by the VTCOA in
opposition to their motion for preliminary injunction and a grant deed relating to the ownership of the Unit.
With respect to the memorandum of points and authorities, a court record that
it is isgenerallyjudicially
noticeable under Section 452, subdivision (d). That said, the Owners rely on it for an improper purpose,
namely to demonstrate Johnson knew of the falsity of his representations there were no restrictions on
opening a restaurant in the Unit. This is not a fact the Court can judicially notice as it is reasonably subject to
dispute and resort must be made to evidence to determine its truth. (See Scott v. JPMorgan Chase Bank, N.A.
(2013) 214 Cal.App.4th 743, 755 [amatter can be judicially noticed only ifitisreasonably beyond dispute and
the introduction of evidence to prove that matter would not be required]; see also Herrera v. Deutsche Bank
Nat. Tr. Co. (2011) 196 Cal.App.4th 1366, 1374; Fremont Indemnity Co. v. Fremont General Corp. (2007) 148
Cal.App.4th 97, 113.) As such, the memorandum is not a proper subject ofjudicial notice.
As for the deed, it is generally judicially noticeable under Section 452, subdivision (h). (See Fontenot, supra,
198 Cal.App.4th at 264-265.) However, it is not helpful or necessary to the Court s resolution of the demurrer
as it does not pertain to any ofthe arguments raised. As such, the Court will not take judicial notice of it. (See
Jordache, supra, 18 Ca|.4th at 748, fn. 6.)
Accordingly, the Owners request forjudicial notice isDENIED in its entirety.
|||.Demurrer
Johnson demurs to the sixth, seventh, eighth, and ninth causes of action.
A. Sixth Cause of Action
The sixth cause of action for fraud alleges Johnson knowingly misrepresented to Plaintiffs that they would be
able to convert the Unit into a restaurant and connect a gas line to it without any trouble.
Johnson demurs to this claim on the ground of failure to state facts sufficient to constitute a cause of action.
(See Code Civ. Proc., 430.10, subd. (e).)
To plead a claim for fraud, a plaintiff must allege a misrepresentation that was made with knowledge of its
falsity and intent to deceive. (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157
Cal.App.4th 835, 845.)
Johnson asserts Plaintiffs have not alleged a misrepresentation because the FAC otherwise indicates the
representations he made were true. In particular, he argues the fraud claim pleads he misrepresented the
Unit could be used as a restaurant and Plaintiffs would be able to connect a gas line but other averments in
the pleading show these statements were true because Plaintiffs did receive approval for their restaurant and
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did connect their gas line. This argument lacks merit as itis predicated on a mischaracterization of the
allegations in this claim.
Contrary to Johnson s contention, this cause of action is not based merely on his representations the Unit
could be converted into a restaurant and a gas line could be installed but also on his statements these things
could be done without any problem. Specifically, Plaintiffs plead Johnson represented the Unit could be
readily converted and a gas line connected without any trouble whatsoever. (FAC, 47.) And though
Johnson iscorrect the FAC also alleges Plaintiffs initially received approval for the restaurant conversion and
actually installed a gas line, it goes on to clearly aver they ran into complications. (See FAC, 19-20.) In
particular, Plaintiffs were sued by another tenant and then had their gas line disconnected by the VTCOA
shortly before their restaurant s opening.
(|bid.)These allegations support the averment Johnson made a misrepresentation when he said the Unit
could be converted and a gas line installed without any trouble.
Though not clearly articulated, Johnson also appears to contend the elements of knowledge of falsity and
intent to deceive are not met. He argues Plaintiffs do not allege he knew his statements were false and
cannot maintain an action for fraud, with a necessary element being that the facts represented are known to
be false, with the intent to defraud because the statements he made were true. (Dem. at p. 4:25-26, 522-4,
emphasis in original.)
To the extent Johnson isarguing these two elements are not met because his representations were true, this
contention failsfor the same reasons articulated above. As for the assertion Plaintiffs do not plead Johnson
knew his statements were false, it is not well-taken as the FAC clearly alleges Johnson knew the statements
he made were false. (See FAC, 48.)
Accordingly, the demurrer to the sixth cause of action on the ground of failure to state sufficient facts is
OVERRU LED.
B. Seventh Cause of Action
The seventh cause of action is for negligent misrepresentation. Plaintiffs plead negligent misrepresentations
were made to them that consideration of their application to convert the Unit into a restaurant would be
delegated to Alvarado and Alvarado was authorized to approve connection of a gas line to the Unit.
Johnson demurs to this claim on both the grounds of failure to state facts sufficient to constitute a cause of
action and uncertainty. (See Code Civ. Proc., 430.10, subds. (e), (f).)
1. Failure to State Facts Sufficient to Constitute a Cause of Action
Johnson argues no claim has been stated against him because he is not mentioned specifically inthe
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allegations. Instead, according to Johnson, Plaintiffs only plead that other defendants made the
misrepresentations at issue. The Court isnot persuaded.
Though it is truePlaintiffs specifically attribute the statements regarding delegation of the restaurant
approval process to Alvarado, Matrix and the VTCOA, they also generally plead the Defendants represented
Alvarado was authorized to approve the use and connection of a gas line to the Unit. (FAC, 53.) This
reference to Defendants necessarily includes Johnson because he is a defendant. Moreover, the negligent
misrepresentation claim incorporates by reference the FAC s general allegations, including that Johnson
misrepresented the difficulty with which Plaintiffs would be able to convert the Unit and install a gas line.
(See FAC, 12, 52.) As such, the argument Plaintiffs do not plead misrepresentations byJohnson lacks merit.
Johnson also asserts this claim isdeficient because any statements he made were true. For the reasons
previously discussed, this contention isnot well-taken.
As such, the demurrer to the seventh cause of action on the ground of failure to state sufficient facts is
OVERRU LED.
2. Uncertainty
Johnson states in his demurrer that he is demurring to this claim because it is uncertain. But he advances no
arguments on this issue in his memorandum of points and authorities. The standard for uncertainty is that
the allegations of the pleading must be so unintelligible the defendant cannot reasonably respond, i.e., he or
she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are
directed against him or her. (Khoury v. Maly s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Johnson does not
discuss this standard in any way. As such, his demurrer on this ground is unsubstantiated. (See, e.g.,People v.
Dougherty (1982) 138 Cal.App.3d 278, 282 [a point asserted without argument or citation to authority may be
disregarded]; see also Cal. Rules of Court, rule 3.1113(b) [supporting memorandum must include a discussion
of legal authority in support of the position advanced].)
Johnson s demurrer to the seventh cause of action on the ground of uncertainty istherefore OVERRULED.
C. Eighth Cause of Action
The eighth cause of action isfor civilextortion. Plaintiffs allege Johnson demanded Plaintiffspay him $60,000
to obtain a gas line for the Unit under threat he would prevent them from obtaining a gas lineand preclude
them from opening their restaurant.
Johnson demurs to this claim on the ground of failure to state facts sufficient to constitute a cause of action.
(See Code Civ. Proc., 430.10, subd. (e).)He argues no cause of action has been stated because extortion
involves obtaining property from another and, here, Plaintiffs clearly aver they refused to pay him the
amount demanded. This argument has merit.
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Though there is a dearth of California case law discussing a claim for civil extortion, at least one court has
acknowledged the crime of extortion may be asserted as a private cause of action as [i]t is essentially a cause
of action for moneys obtained by duress, a form of fraud. (Fuhrman v. California Satellite Systems (1986) 179
Cal.App3d 408, 426, disapproved on other grounds by Silberg v. Anderson (1990) 50 Cal.3d 205, emphasis
addedJ
Here, Plaintiffs specifically allege they refused to pay for the gas line (see FAC, 57) and there are no
allegations indicating Johnson obtained any money from them. As such, the cause of action is deficient.
The Owners argument in response does not compel a contrary conclusion. Though not clearly articulated,
the Owners appear to assert they need not plead Johnson actually obtained monies from them because other
types of conduct can also constitute extortion. To this end, they make a number of disjointed statements
bearing no relation to the FAC. For example, they reference Flatley v. Mauro (2006) 39 Cal.4th 299 for the
proposition that sending a threatening letter or writing is sufficient to allege extortion despite the fact no
such letter is pled in the FAC. (See Opp. at p. 7:20-8z4.) They also reference statements made purportedly by
Johnson s contractor that it would be illegal for them to tap into a gas line without the owners consent even
though these facts do not appear in the pleading.
First,the Flatley case is unhelpful because itdiscussed the crime of extortion and the court there did not
discuss the types of conduct upon which a claim for civil extortion could be predicated. (See Flatley, supra, 39
Cal.4th at 326.) Second, even if Flatley applied, the FAC does not allege a threatening letter was sent and
Plaintiffs otherwise improperly resort to information extrinsic to the FAC to support their argument, which
cannot be considered on demurrer. (See Groves v. Peterson (2002) 100 Cal.App.4th 659, 667 [on demurrer, a
court considers only the allegations on the face of the complaint and anyjudicially noticeable matters]; Vaca
v. Wachovia Mortg. Corp. (2011) 198 Cal.App.4th 737, 746 [same].)
As such, the demurrer to the civilextortion claim is sustainable on the basis Plaintiffsdo not allege Johnson
obtained monies from them.
Johnson additionally contends this claim fails because Plaintiffs do not allege any wrongful use of force or
fear and, instead, merely plead he intended to prevent them from obtaining a gas line. This argument is
flawed.
Johnson pulls the language regarding wrongful use of force or fear from the statute governing criminal
extortion, i.e.Penal Code section 518. But, as discussed, it isunclear this statute applies inthe firstinstance
as a claim for extortion
civil istreated as a cause of action for monies obtained by duress. Civil Code section
1569 defines duress as consisting of the unlawful confinement of a person, the unlawful detention of
property of another, or confinement of a person that is obtained by fraud or fraudulently made unjustly
harassing or oppressive. This statute does not use the language wrongful use of force or fear. Moreover,
even if the definition of duress encompassed such a concept, Johnson does not otherwise substantiate his
argument, cite authority discussing what must be pled todemonstrate wrongful use of force or fear, or
explain why the allegations are deficient.
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Therefore, the demurrer to the eighth cause of action on the ground of failure to state sufficient facts is
SUSTAINED with 10 days leave to amend solely on the basis Plaintiffsdo not allege Johnson obtained monies
from them. The time to amend shall run from the date of service of the Order.
D. Ninth Cause of Action
The ninth cause of action isfor violation of Business and Professions Code section 17200, otherwise known as
California s unfair competition law ( UCL ),which prohibits any unlawful, unfair or fraudulent business act or
practice. (Bus. & Prof. Code, 17200 et seq.)
Plaintiffs allege, among other things, that Defendants engaged in unlawful business practices when they
conspired to prevent the opening of the pizza restaurant and engaged in seIf-dealing, extortion and fraud in
their operation of the VTCOA.
Johnson demurs to this claim on both the grounds failure to state facts sufficient to constitute a cause of
action and uncertainty. (See Code Civ. Proc., 430.10, subds. (e), (f).)
1. Failure to State Facts Sufficient to Constitute a Cause of Action
Johnson first asserts no claim has been stated because Plaintiffs do not allege facts demonstrating an
economic injury, which must be pled to state a UCL claim (see Bus. & Prof. Code, 17204; Kwikset Corp. v.
Superior Court (2011) 51 Ca|.4th 310, 322). He does not further elaborate or explain why the facts as pled are
deficient. Here, Plaintiffs do allege they lost money and profits as a result of Defendants efforts to prevent
them from opening their restaurant. (See FAC, 72.) It is unclear ifJohnson overlooked this allegation or is
suggesting more facts are needed to support it. As such, his contention is unsubstantiated.
Next, Johnson asserts this cause of action failsbecause Plaintiffsdo not aver any unlawful, unfair,or
fraudulent conduct.
Because Section 17200 iswritten in the disjunctive, itestablishes three varieties of unfair competition-acts or
practices which are unlawful, or unfair, or fraudulent. (Puentes v. Wells Fargo Home Mortgage, Inc. (2008)
160 Cal.App.4th 638, 644, citations and quotations marks omitted.) Inother words, a practice is prohibited as
unfair or deceptive even if not unlawful and vice versa. (|bid.)
Here, Johnson argues Plaintiffs have not alleged facts satisfying the unlawful prong because they do not plead
the violation of a specific law. Relative to the unfair prong, he asserts Plaintiffs do not aver facts
demonstrating his conduct threatened any policy or had any impact on fair competition, which is required to
allege unfair conduct by a competitor (see In re Firearm Cases (2005) 126 Cal.App.4th 959). As for the
fraudulent prong, he does not address it.
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Though Johnson is correct Plaintiffs do not allege a legal violation and, thus, do not plead conduct violating
the unlawful prong, relative to the unfair prong, he does not explain why the facts alleged do not indicate an
impact on fair competition. Here, Plaintiffs aver the VTCOA, its board members, and the other original
defendants acted and/or conspired with one another to prevent [the] complet[ion] and operati[on of] a pizza
restaurant in the Unit. (FAC, 64.) This allegation of interference with the opening of a business suggests an
impact on faircompetition. Furthermore, even if no conduct is pled satisfying either the unlawful or unfair
prong, as the Owners point out in their opposition, the FAC otherwise alleges fraudulent conduct by Johnson.
(See, e.g., FAC, 12, 47-48.) For example, Plaintiffs plead Johnson misrepresented the ease with which they
would be able to convert the Unit into a restaurant in order to induce them to buy it. (|bid.) And though it is
true these averments do not appear in the body of the UCL claim, they are explicitly incorporated by
reference into this cause of action. (Id. at 62.) Johnson does not explain why these allegations are
inadequate or even address the fraudulent prong in his demurrer. As such, the demurrer is not sustainable on
the basis Plaintiffs do not plead any unlawful, unfair or fraudulent conduct.
Finally, Johnson contends this claim isdeficient as alleged against him because he isnot clearly mentioned in
the cause of action and the conduct pled implicates only the VTCOA board. This argument is flawed. As
stated, this cause of action incorporates by reference all the preceding causes of action, including those pled
explicitly against Johnson. Moreover, when liberally construed, even the conduct alleged in the UCL claim can
be reasonably construed as implicating Johnson. (See, e.g., FAC at 64 [averring that the VTCOA, its board
members and the other original defendants acted in concert to engage in the wrongful conduct].)
Therefore, Johnson s demurrer to the ninth cause of action on the ground of failure to state sufficient facts is
OVERRU LED.
2. Uncertainty
Johnson states in his demurrer that he is demurring to this claim because it is uncertain but advances no
argument on this issue in his memorandum of points and authorities. As such, his demurrer on this ground is
unsubstantiated. (See, e.g., Dougherty, supra, 138 Cal.App.3d at 282; Cal. Rules of Court, rule 3.1113(b).)
Therefore, Johnson s demurrer to the ninth cause of action on the ground of uncertainty isOVERRULED.
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER San Francisco Pizza, Inc et al vsVietnam Town Hearing Start Time; 9:00 AM Condominium Owners Association, Inc et al 17CV318151 Hearing Type: Hearing: Demurrer Date of Hearing: 10/02/2018 Comments: Heard By: Kirwan, Peter Location: Department 19 Courtroom Reporter: - No Court Reporter Courtroom Clerk: Ingrid C Stewart Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - Counsel, Tom Fama appearing for defendant Michael Johnson. Counsel requested clarification of court's tentative ruling. Another proceeding affecting same case, the court allowed October 30 for leave to amend and counsel is asking for the same consideration. Court grants request: The Tentative Ruling is modified and adopted. See below: Calendar Line 2 - 00000 - Calendar Line 2 Case Name: San Francisco Pizza, Vietnam Town Condominium |nc., et al. v. Owners Association, |nc., et al. Printed:10/3/2018 — 17CV318151 10/02/2018 Hearing: Demurrer Page 10 1 of SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Case No.2 18CV318151 I.Factual Background This action arises from a failed attempt to open a restaurant in a commercial condominium complex. The operative FirstAmended Complaint (FAC )was filed by plaintiffsTan Nguyen (Tan ), Nghia Nguyen, Kim Thuy Ho ( Ho ) (collectively the Owners ),the owners of the condominium unit, and San Francisco Pizza, Inc. ( San Francisco Pizza ), the restaurant renting the unit (collectively Plaintiffs ),against defendants Vietnam Town Condominium Owners Association ( VTCOA ), the commercial condominium association; Matrix Association Management, the VTCOA s property manager; David Alvarado ( Alvarado ), a Matrix employee responsible for managing the Vietnam Town condominium complex; Joseph Nguyen, Khanh Cao Huu, Joany Yuin (Yuin ), and Ngoc Bui, members of the VTCOA board; Lap T. Tang (Tang ), the VTCOA s original developer; and Michael Johnson (Johnson ), the Owners real estate agent. As alleged in the FAC, Plaintiffs engaged Johnson to purchase a condominium unit known as Unit 9015 (the Unit ), which is located at 999 Story Road, San Jose, California and is part of the Vietnam Town condominium complex (the Complex ). (FAC, 1, 12.) At that time, they specifically told Johnson they wanted to purchase the Unit to open a restaurant. (Id. at 12.) Johnson represented he was very familiar with the units as he himself owned one and further stated there were no restrictions on operating a restaurant in the Unit. (|bid.) Before escrow closed, Plaintiffs retained the services of an architect who examined the Unit in Johnson s presence, discussed a preliminary restaurant floor plan with him, and talked with him about using a gas line to supply gas for kitchen appliances. (|bid.)Johnson also informed Plaintiffsof another tenant at the Complex who had built a Korean barbeque restaurant and was supplied with a gas line for its use. (|bid.) In reliance on these representations, Plaintiffspurchased the Unit and prepared to build a pizza restaurant there. (See Id. at 13-14.) During these preparations, one of the Owners, Ho, contacted VTCOA board member Yuin to obtain approval to use the Unit as a restaurant. (Id. at 14.) Yuin informed Ho she should contact Alvarado with any questions. (|bid.)Ho contacted Alvarado and sought written permission from the VTCOA board for the installation of a gas line to the Unit. (|bid.) Alvarado orally informed Plaintiffs the Unit was approved for use as a restaurant and that the gas lines and meters serving the building, which were owned by the VTCOA, could be connected to units operating as restaurants. (|bid.) Subsequently, Plaintiffs sent Alvarado a draft letter from their counsel that included a statement they had performed all necessary steps to obtain gas line approval from the VTCOA and PG&E. Ibid.) Alvarado made a number of substantive changes and additions to the letter but did not dispute the statement Plaintiffs had taken all necessary steps to obtain approval. (Ibid.)His changes were incorporated and Plaintiffs believe this letter was forwarded to the VTCOA board. (Ibid.) This approval process was consistent with Plaintiffs belief that, for three years or more, the VTCOA has allowed units to be converted into restaurants and supplied building gas lines for their use without any formal process or procedure. (Id. at 15.) |n reliance on Alvarado s representations, San Francisco Pizza spent in excess of $500,000 making tenant improvements to construct the restaurant. (Id. at 17.) Plaintiffs also hired a contractor to work with PG&E to install a gas line from one of the meters in the building s common areas to the Unit. (Ibid.) This gas line was then tested and approved by the City of San Jose. (Ibid.) Around this time, Plaintiffs and the VTCOA were sued by another party for trespass, breach of contract, interference, and injunctive and declaratory relief. (Id. at 19.) The VTCOA and this party settled the matter and the case was voluntarily dismissed. (Ibid.) Printed:10/3/2018 — 17CV318151 10/02/2018 Hearing: Demurrer Page 2 of 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Plaintiffs were preparing for a soft opening of the restaurant when Tang, the VTCOA developer, and one of the VTCOA board members disconnected the gas line to the Unit. (Id. at 20.) They also precluded Plaintiffs contractors from accessing the common area to reconnect the line. (|bid.) These actions were approved of or ratified by the VTCOA board. (|bid.) The FAC asserts nine causes of action for: (1) trespass; (2) conversion; (3) intentional interference with prospective economic advantage; (4) breach of contract; (5) declaratory relief;(6) fraud; (7) negligent misrepresentation; (8) civilextortion; and (9) unlawful business practices. Currently before the Court isJohnson s demurrer, which is accompanied by a request for judicial notice. The Owners and San Francisco Pizza both oppose the demurrer. The Owners filed a request forjudicial notice in support of their opposition. II.Requests for Judicial Notice A. Johnson s Request Johnson seeks judicial notice of the FAC and two deeds related to the ownership of the Unit. With respect to the FAC, under Evidence Code section 452 (Section 452 ), subdivision (d), court records are generally proper subjects ofjudicial notice. However, judicial notice of the FAC is unnecessary because it is the pleading under review and, as such, must be considered by the Court. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1.) As for the deeds, they are recorded documents and, thus, generally judicially noticeable under Section 452, subdivision (h) as facts not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265, disapproved of on other grounds in Yvanova v. New Century Mortg. Corp. (2016) 62 Ca|.4th 919.) With that said, a court need not take judicial notice of a matter unless it isnecessary, helpful, or relevant. (Jordache Enterprises, Inc. v.Brobeck, Phleger & Harrison (1998) 18 Ca|.4th 739, 748, fn. 6.) Here, Johnson only refers to these deeds once in the factual background section of his memorandum. Specifically, he states the deeds suggest a potential break in the chain of title between Tan, the original purchaser of the Unit, and the Owners who purport to currently own it. He does not, however, discuss this issue further or reference the deeds relative to the arguments advanced on demurrer. As such, judicial notice of the deeds is neither helpful nor necessary. Accordingly, Johnson s request for judicial notice is DENIED in its entirety. B. The Owners Request Printed:10/3/2018 — 17CV318151 10/02/2018 Hearing: Demurrer Page 3 of 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER The Owners request judicial notice of the memorandum of points and authorities filed by the VTCOA in opposition to their motion for preliminary injunction and a grant deed relating to the ownership of the Unit. With respect to the memorandum of points and authorities, a court record that it is isgenerallyjudicially noticeable under Section 452, subdivision (d). That said, the Owners rely on it for an improper purpose, namely to demonstrate Johnson knew of the falsity of his representations there were no restrictions on opening a restaurant in the Unit. This is not a fact the Court can judicially notice as it is reasonably subject to dispute and resort must be made to evidence to determine its truth. (See Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 755 [amatter can be judicially noticed only ifitisreasonably beyond dispute and the introduction of evidence to prove that matter would not be required]; see also Herrera v. Deutsche Bank Nat. Tr. Co. (2011) 196 Cal.App.4th 1366, 1374; Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.) As such, the memorandum is not a proper subject ofjudicial notice. As for the deed, it is generally judicially noticeable under Section 452, subdivision (h). (See Fontenot, supra, 198 Cal.App.4th at 264-265.) However, it is not helpful or necessary to the Court s resolution of the demurrer as it does not pertain to any ofthe arguments raised. As such, the Court will not take judicial notice of it. (See Jordache, supra, 18 Ca|.4th at 748, fn. 6.) Accordingly, the Owners request forjudicial notice isDENIED in its entirety. |||.Demurrer Johnson demurs to the sixth, seventh, eighth, and ninth causes of action. A. Sixth Cause of Action The sixth cause of action for fraud alleges Johnson knowingly misrepresented to Plaintiffs that they would be able to convert the Unit into a restaurant and connect a gas line to it without any trouble. Johnson demurs to this claim on the ground of failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., 430.10, subd. (e).) To plead a claim for fraud, a plaintiff must allege a misrepresentation that was made with knowledge of its falsity and intent to deceive. (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 845.) Johnson asserts Plaintiffs have not alleged a misrepresentation because the FAC otherwise indicates the representations he made were true. In particular, he argues the fraud claim pleads he misrepresented the Unit could be used as a restaurant and Plaintiffs would be able to connect a gas line but other averments in the pleading show these statements were true because Plaintiffs did receive approval for their restaurant and Printed:10/3/2018 — 17CV318151 10/02/2018 Hearing: Demurrer Page 4 of 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER did connect their gas line. This argument lacks merit as itis predicated on a mischaracterization of the allegations in this claim. Contrary to Johnson s contention, this cause of action is not based merely on his representations the Unit could be converted into a restaurant and a gas line could be installed but also on his statements these things could be done without any problem. Specifically, Plaintiffs plead Johnson represented the Unit could be readily converted and a gas line connected without any trouble whatsoever. (FAC, 47.) And though Johnson iscorrect the FAC also alleges Plaintiffs initially received approval for the restaurant conversion and actually installed a gas line, it goes on to clearly aver they ran into complications. (See FAC, 19-20.) In particular, Plaintiffs were sued by another tenant and then had their gas line disconnected by the VTCOA shortly before their restaurant s opening. (|bid.)These allegations support the averment Johnson made a misrepresentation when he said the Unit could be converted and a gas line installed without any trouble. Though not clearly articulated, Johnson also appears to contend the elements of knowledge of falsity and intent to deceive are not met. He argues Plaintiffs do not allege he knew his statements were false and cannot maintain an action for fraud, with a necessary element being that the facts represented are known to be false, with the intent to defraud because the statements he made were true. (Dem. at p. 4:25-26, 522-4, emphasis in original.) To the extent Johnson isarguing these two elements are not met because his representations were true, this contention failsfor the same reasons articulated above. As for the assertion Plaintiffs do not plead Johnson knew his statements were false, it is not well-taken as the FAC clearly alleges Johnson knew the statements he made were false. (See FAC, 48.) Accordingly, the demurrer to the sixth cause of action on the ground of failure to state sufficient facts is OVERRU LED. B. Seventh Cause of Action The seventh cause of action is for negligent misrepresentation. Plaintiffs plead negligent misrepresentations were made to them that consideration of their application to convert the Unit into a restaurant would be delegated to Alvarado and Alvarado was authorized to approve connection of a gas line to the Unit. Johnson demurs to this claim on both the grounds of failure to state facts sufficient to constitute a cause of action and uncertainty. (See Code Civ. Proc., 430.10, subds. (e), (f).) 1. Failure to State Facts Sufficient to Constitute a Cause of Action Johnson argues no claim has been stated against him because he is not mentioned specifically inthe Printed:10/3/2018 — 17CV318151 10/02/2018 Hearing: Demurrer Page 5 of 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER allegations. Instead, according to Johnson, Plaintiffs only plead that other defendants made the misrepresentations at issue. The Court isnot persuaded. Though it is truePlaintiffs specifically attribute the statements regarding delegation of the restaurant approval process to Alvarado, Matrix and the VTCOA, they also generally plead the Defendants represented Alvarado was authorized to approve the use and connection of a gas line to the Unit. (FAC, 53.) This reference to Defendants necessarily includes Johnson because he is a defendant. Moreover, the negligent misrepresentation claim incorporates by reference the FAC s general allegations, including that Johnson misrepresented the difficulty with which Plaintiffs would be able to convert the Unit and install a gas line. (See FAC, 12, 52.) As such, the argument Plaintiffs do not plead misrepresentations byJohnson lacks merit. Johnson also asserts this claim isdeficient because any statements he made were true. For the reasons previously discussed, this contention isnot well-taken. As such, the demurrer to the seventh cause of action on the ground of failure to state sufficient facts is OVERRU LED. 2. Uncertainty Johnson states in his demurrer that he is demurring to this claim because it is uncertain. But he advances no arguments on this issue in his memorandum of points and authorities. The standard for uncertainty is that the allegations of the pleading must be so unintelligible the defendant cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Johnson does not discuss this standard in any way. As such, his demurrer on this ground is unsubstantiated. (See, e.g.,People v. Dougherty (1982) 138 Cal.App.3d 278, 282 [a point asserted without argument or citation to authority may be disregarded]; see also Cal. Rules of Court, rule 3.1113(b) [supporting memorandum must include a discussion of legal authority in support of the position advanced].) Johnson s demurrer to the seventh cause of action on the ground of uncertainty istherefore OVERRULED. C. Eighth Cause of Action The eighth cause of action isfor civilextortion. Plaintiffs allege Johnson demanded Plaintiffspay him $60,000 to obtain a gas line for the Unit under threat he would prevent them from obtaining a gas lineand preclude them from opening their restaurant. Johnson demurs to this claim on the ground of failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., 430.10, subd. (e).)He argues no cause of action has been stated because extortion involves obtaining property from another and, here, Plaintiffs clearly aver they refused to pay him the amount demanded. This argument has merit. Printed:10/3/2018 — 17CV318151 10/02/2018 Hearing: Demurrer Page 6 of 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Though there is a dearth of California case law discussing a claim for civil extortion, at least one court has acknowledged the crime of extortion may be asserted as a private cause of action as [i]t is essentially a cause of action for moneys obtained by duress, a form of fraud. (Fuhrman v. California Satellite Systems (1986) 179 Cal.App3d 408, 426, disapproved on other grounds by Silberg v. Anderson (1990) 50 Cal.3d 205, emphasis addedJ Here, Plaintiffs specifically allege they refused to pay for the gas line (see FAC, 57) and there are no allegations indicating Johnson obtained any money from them. As such, the cause of action is deficient. The Owners argument in response does not compel a contrary conclusion. Though not clearly articulated, the Owners appear to assert they need not plead Johnson actually obtained monies from them because other types of conduct can also constitute extortion. To this end, they make a number of disjointed statements bearing no relation to the FAC. For example, they reference Flatley v. Mauro (2006) 39 Cal.4th 299 for the proposition that sending a threatening letter or writing is sufficient to allege extortion despite the fact no such letter is pled in the FAC. (See Opp. at p. 7:20-8z4.) They also reference statements made purportedly by Johnson s contractor that it would be illegal for them to tap into a gas line without the owners consent even though these facts do not appear in the pleading. First,the Flatley case is unhelpful because itdiscussed the crime of extortion and the court there did not discuss the types of conduct upon which a claim for civil extortion could be predicated. (See Flatley, supra, 39 Cal.4th at 326.) Second, even if Flatley applied, the FAC does not allege a threatening letter was sent and Plaintiffs otherwise improperly resort to information extrinsic to the FAC to support their argument, which cannot be considered on demurrer. (See Groves v. Peterson (2002) 100 Cal.App.4th 659, 667 [on demurrer, a court considers only the allegations on the face of the complaint and anyjudicially noticeable matters]; Vaca v. Wachovia Mortg. Corp. (2011) 198 Cal.App.4th 737, 746 [same].) As such, the demurrer to the civilextortion claim is sustainable on the basis Plaintiffsdo not allege Johnson obtained monies from them. Johnson additionally contends this claim fails because Plaintiffs do not allege any wrongful use of force or fear and, instead, merely plead he intended to prevent them from obtaining a gas line. This argument is flawed. Johnson pulls the language regarding wrongful use of force or fear from the statute governing criminal extortion, i.e.Penal Code section 518. But, as discussed, it isunclear this statute applies inthe firstinstance as a claim for extortion civil istreated as a cause of action for monies obtained by duress. Civil Code section 1569 defines duress as consisting of the unlawful confinement of a person, the unlawful detention of property of another, or confinement of a person that is obtained by fraud or fraudulently made unjustly harassing or oppressive. This statute does not use the language wrongful use of force or fear. Moreover, even if the definition of duress encompassed such a concept, Johnson does not otherwise substantiate his argument, cite authority discussing what must be pled todemonstrate wrongful use of force or fear, or explain why the allegations are deficient. Printed:10/3/2018 — 17CV318151 10/02/2018 Hearing: Demurrer Page 7 of 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Therefore, the demurrer to the eighth cause of action on the ground of failure to state sufficient facts is SUSTAINED with 10 days leave to amend solely on the basis Plaintiffsdo not allege Johnson obtained monies from them. The time to amend shall run from the date of service of the Order. D. Ninth Cause of Action The ninth cause of action isfor violation of Business and Professions Code section 17200, otherwise known as California s unfair competition law ( UCL ),which prohibits any unlawful, unfair or fraudulent business act or practice. (Bus. & Prof. Code, 17200 et seq.) Plaintiffs allege, among other things, that Defendants engaged in unlawful business practices when they conspired to prevent the opening of the pizza restaurant and engaged in seIf-dealing, extortion and fraud in their operation of the VTCOA. Johnson demurs to this claim on both the grounds failure to state facts sufficient to constitute a cause of action and uncertainty. (See Code Civ. Proc., 430.10, subds. (e), (f).) 1. Failure to State Facts Sufficient to Constitute a Cause of Action Johnson first asserts no claim has been stated because Plaintiffs do not allege facts demonstrating an economic injury, which must be pled to state a UCL claim (see Bus. & Prof. Code, 17204; Kwikset Corp. v. Superior Court (2011) 51 Ca|.4th 310, 322). He does not further elaborate or explain why the facts as pled are deficient. Here, Plaintiffs do allege they lost money and profits as a result of Defendants efforts to prevent them from opening their restaurant. (See FAC, 72.) It is unclear ifJohnson overlooked this allegation or is suggesting more facts are needed to support it. As such, his contention is unsubstantiated. Next, Johnson asserts this cause of action failsbecause Plaintiffsdo not aver any unlawful, unfair,or fraudulent conduct. Because Section 17200 iswritten in the disjunctive, itestablishes three varieties of unfair competition-acts or practices which are unlawful, or unfair, or fraudulent. (Puentes v. Wells Fargo Home Mortgage, Inc. (2008) 160 Cal.App.4th 638, 644, citations and quotations marks omitted.) Inother words, a practice is prohibited as unfair or deceptive even if not unlawful and vice versa. (|bid.) Here, Johnson argues Plaintiffs have not alleged facts satisfying the unlawful prong because they do not plead the violation of a specific law. Relative to the unfair prong, he asserts Plaintiffs do not aver facts demonstrating his conduct threatened any policy or had any impact on fair competition, which is required to allege unfair conduct by a competitor (see In re Firearm Cases (2005) 126 Cal.App.4th 959). As for the fraudulent prong, he does not address it. Printed:10/3/2018 — 17CV318151 10/02/2018 Hearing: Demurrer Page 8 of 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Though Johnson is correct Plaintiffs do not allege a legal violation and, thus, do not plead conduct violating the unlawful prong, relative to the unfair prong, he does not explain why the facts alleged do not indicate an impact on fair competition. Here, Plaintiffs aver the VTCOA, its board members, and the other original defendants acted and/or conspired with one another to prevent [the] complet[ion] and operati[on of] a pizza restaurant in the Unit. (FAC, 64.) This allegation of interference with the opening of a business suggests an impact on faircompetition. Furthermore, even if no conduct is pled satisfying either the unlawful or unfair prong, as the Owners point out in their opposition, the FAC otherwise alleges fraudulent conduct by Johnson. (See, e.g., FAC, 12, 47-48.) For example, Plaintiffs plead Johnson misrepresented the ease with which they would be able to convert the Unit into a restaurant in order to induce them to buy it. (|bid.) And though it is true these averments do not appear in the body of the UCL claim, they are explicitly incorporated by reference into this cause of action. (Id. at 62.) Johnson does not explain why these allegations are inadequate or even address the fraudulent prong in his demurrer. As such, the demurrer is not sustainable on the basis Plaintiffs do not plead any unlawful, unfair or fraudulent conduct. Finally, Johnson contends this claim isdeficient as alleged against him because he isnot clearly mentioned in the cause of action and the conduct pled implicates only the VTCOA board. This argument is flawed. As stated, this cause of action incorporates by reference all the preceding causes of action, including those pled explicitly against Johnson. Moreover, when liberally construed, even the conduct alleged in the UCL claim can be reasonably construed as implicating Johnson. (See, e.g., FAC at 64 [averring that the VTCOA, its board members and the other original defendants acted in concert to engage in the wrongful conduct].) Therefore, Johnson s demurrer to the ninth cause of action on the ground of failure to state sufficient facts is OVERRU LED. 2. Uncertainty Johnson states in his demurrer that he is demurring to this claim because it is uncertain but advances no argument on this issue in his memorandum of points and authorities. As such, his demurrer on this ground is unsubstantiated. (See, e.g., Dougherty, supra, 138 Cal.App.3d at 282; Cal. Rules of Court, rule 3.1113(b).) Therefore, Johnson s demurrer to the ninth cause of action on the ground of uncertainty isOVERRULED. Printed:10/3/2018 — 17CV318151 10/02/2018 Hearing: Demurrer Page 9 of 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Printed:10/3/2018 — 17CV318151 10/02/2018 Hearing: Demurrer Page 10 of 10