On October 25, 2017 a
Motion-Secondary
was filed
involving a dispute between
Kim Thuy Ho,
Nghia Nguyen,
San Francisco Pizza, Inc,
Tan Nguyen,
and
Aquatek Plumbing Inc,
David Alvarado,
Joany Yuin,
Joseph Nguyen,
Khanh Cao Huu,
Lap T Tang,
Matrix Association Management,
Michael Johnson,
Ngoc Bui,
Vietnam Town Condominium Owners Association, Inc,
for Other Real Property Unlimited (26)
in the District Court of Santa Clara County.
Preview
ee
ooanon oom fF wo Nn
GARY B. WESLEY
Attorney at Law (#84745)
707 Continental Circle #424
Mountain View, CA 94040
(408) 882-5070
Attorney for Plaintiff
San Francisco Pizza, Inc.
SUPERIOR COURT OF CALIFORNIA.
COUNTY OF SANTA CLARA
SAN FRANCISCO PIZZA, INC.,
TAN NGUYEN,
NGHIA NGUYEN and Case No. 17CV318151
KIM THUY HO,
SAN FRANCISCO PIZZA, INC.’S
Plaintiffs, OPPOSITION TO DEMURRER
vs. OF DEFENDANT MICHAEL JOHNSON
- TO FIRST AMENDED COMPLAINT
VIETNAM TOWN
CONDOMINIUM OWNERS Date: October 2, 2018
ASSOCIATION, INC., et al., Time: 9 a.m.
Dept: 19
Defendants.
a)
Most of the defendants filed objections to the first amended complaint (FAC) —setting ~
the hearings for 3 different dates: September 25, October 2 and October 18. The Court
might wish to continue the first 2 hearing dates to the last. Opposition to demurrers
and a motion to strike set September 25 were filed and are incorporated herein.
This party’s initial memorandum in opposition focuses on the action of the Condo
Owners Association and others in blocking San Francisco Pizza, Inc. from opening a
restaurant in one commercial condo unit (#9015). The initial opposition filed on behalf
of the 3 co-owners of the unit focuses on the method used to block the business: the
disconnection of a gas line. The FAC alleges that the Condominium Owners Association
Board acted to authorize restaurants in any unit but then pulled the plug on this one.
-1-
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NRMTIRRERtht
oO NOD TO eR wo ND
By his general demurrer, defendant Michael Johnson challenges the 6th-9th causes of
|
action in the FAC. |
The plaintiffs are co-owners of a commercial condominium unit and the corporation
(San Francisco Pizza, Inc.) that leased the unit to operate a restaurant.
If the owners of the unit cannot use it as the pizza parlor installed, someone is out a
lot of money. Creating the restaurant cost money and still more money is lost as the
restaurant is not allowed to open and operate. The market value of the unit itself is
affected by the uses permitted or blocked.
The FAC alleges some alternative theories of liability. The real estate broker for the
purchasers may have been telling the truth that the unit could be used as a restaurant or he
may have known that the plan or likelihood was that the Owners Association Board of
Directors would endeavor to block a restaurant in this one unit.
The demurring party, Michael Johnson, was not just the real estate broker for the
purchaser(s) of unit 9015 but was and is also a condo owner at Vietnam Town.
Areal estate broker may be sued for unlawful business practices (aka unfair
competition) Glen Oaks Estates Homeowners Assn. v. ReMax Premier Properties, Inc.
(2012) 203 CA4th 913. 917, although as to non-member of the Owners Association,
there will be an issue of standing - see Martin v. Bridgeport Community Association, Inc.
(2009) 173 CA4th 1024, 1032 (assignee of claim lacked standing).
At least the condo owners (the other plaiftiffs) would have standing to sue the
Association and others that stopped them from pursuing their right to improve or alter
their unit under Civil Code section 6714 and give away to another a common area gas line
In evident contravention of Civil Code section 6662. Leave to amend should be granted.
Date: September 18. 2018.
San Francisco Pizza, Inc.
-2-
| MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER‘PROOF OF SERVICE
The undersigned certifies that he is an active member of the California Bar, not
a party in this case and served the foregoing
SAN FRANCISCO PIZZA, INC.’S OPPOSITION TO DEMURRER OF
MICHAEL JOHNSON TO FIRST AMENDED COMPLAINT
by placing a true copy thereof in each of five envelopes addressed as shown
below, sealing and depositing the same in the United States mail, first class
postage fully prepaid, on the date andvt the place of execution shown below
AND BY EMAIL TO EACH.
Nicholas A. Rogers, Esq. X
Aaron A. Hayes, Esq.
Berding Weil LLP \
2175 N. California Blvd., Suite 5
Walnut Creek, CA 94596 ' .
Guy W. Stilson, Esq.
Low, Ball & Lynch
505 Montgomery Street, 7" Floor
San Francisco, CA 94111
Gerald T. Lau, Esq,
533 Airport Blvd., Suite 400 wae
Burlingame, CA 94010 “
Robert T. Tang, Esq.
1580 Oakland Road, Suite C205
San Jose, CA 95131
David McDonough, Esq.
Wood, Smith, Henning & Berman, LLP
1401 Willow Pass Rd., Suite 700
Concord, CA 94520-3969 _
Exectited on September }% 2018 in Santa Clara County, CA.
: 14 -
GARYB. WESLEY:
707 Continental Circle #424
Mountain View, CA 94040
-3-
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER
Preview
ee ooanon oom fF wo Nn GARY B. WESLEY Attorney at Law (#84745) 707 Continental Circle #424 Mountain View, CA 94040 (408) 882-5070 Attorney for Plaintiff San Francisco Pizza, Inc. SUPERIOR COURT OF CALIFORNIA. COUNTY OF SANTA CLARA SAN FRANCISCO PIZZA, INC., TAN NGUYEN, NGHIA NGUYEN and Case No. 17CV318151 KIM THUY HO, SAN FRANCISCO PIZZA, INC.’S Plaintiffs, OPPOSITION TO DEMURRER vs. OF DEFENDANT MICHAEL JOHNSON - TO FIRST AMENDED COMPLAINT VIETNAM TOWN CONDOMINIUM OWNERS Date: October 2, 2018 ASSOCIATION, INC., et al., Time: 9 a.m. Dept: 19 Defendants. a) Most of the defendants filed objections to the first amended complaint (FAC) —setting ~ the hearings for 3 different dates: September 25, October 2 and October 18. The Court might wish to continue the first 2 hearing dates to the last. Opposition to demurrers and a motion to strike set September 25 were filed and are incorporated herein. This party’s initial memorandum in opposition focuses on the action of the Condo Owners Association and others in blocking San Francisco Pizza, Inc. from opening a restaurant in one commercial condo unit (#9015). The initial opposition filed on behalf of the 3 co-owners of the unit focuses on the method used to block the business: the disconnection of a gas line. The FAC alleges that the Condominium Owners Association Board acted to authorize restaurants in any unit but then pulled the plug on this one. -1- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NRMTIRRERtht oO NOD TO eR wo ND By his general demurrer, defendant Michael Johnson challenges the 6th-9th causes of | action in the FAC. | The plaintiffs are co-owners of a commercial condominium unit and the corporation (San Francisco Pizza, Inc.) that leased the unit to operate a restaurant. If the owners of the unit cannot use it as the pizza parlor installed, someone is out a lot of money. Creating the restaurant cost money and still more money is lost as the restaurant is not allowed to open and operate. The market value of the unit itself is affected by the uses permitted or blocked. The FAC alleges some alternative theories of liability. The real estate broker for the purchasers may have been telling the truth that the unit could be used as a restaurant or he may have known that the plan or likelihood was that the Owners Association Board of Directors would endeavor to block a restaurant in this one unit. The demurring party, Michael Johnson, was not just the real estate broker for the purchaser(s) of unit 9015 but was and is also a condo owner at Vietnam Town. Areal estate broker may be sued for unlawful business practices (aka unfair competition) Glen Oaks Estates Homeowners Assn. v. ReMax Premier Properties, Inc. (2012) 203 CA4th 913. 917, although as to non-member of the Owners Association, there will be an issue of standing - see Martin v. Bridgeport Community Association, Inc. (2009) 173 CA4th 1024, 1032 (assignee of claim lacked standing). At least the condo owners (the other plaiftiffs) would have standing to sue the Association and others that stopped them from pursuing their right to improve or alter their unit under Civil Code section 6714 and give away to another a common area gas line In evident contravention of Civil Code section 6662. Leave to amend should be granted. Date: September 18. 2018. San Francisco Pizza, Inc. -2- | MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER‘PROOF OF SERVICE The undersigned certifies that he is an active member of the California Bar, not a party in this case and served the foregoing SAN FRANCISCO PIZZA, INC.’S OPPOSITION TO DEMURRER OF MICHAEL JOHNSON TO FIRST AMENDED COMPLAINT by placing a true copy thereof in each of five envelopes addressed as shown below, sealing and depositing the same in the United States mail, first class postage fully prepaid, on the date andvt the place of execution shown below AND BY EMAIL TO EACH. Nicholas A. Rogers, Esq. X Aaron A. Hayes, Esq. Berding Weil LLP \ 2175 N. California Blvd., Suite 5 Walnut Creek, CA 94596 ' . Guy W. Stilson, Esq. Low, Ball & Lynch 505 Montgomery Street, 7" Floor San Francisco, CA 94111 Gerald T. Lau, Esq, 533 Airport Blvd., Suite 400 wae Burlingame, CA 94010 “ Robert T. Tang, Esq. 1580 Oakland Road, Suite C205 San Jose, CA 95131 David McDonough, Esq. Wood, Smith, Henning & Berman, LLP 1401 Willow Pass Rd., Suite 700 Concord, CA 94520-3969 _ Exectited on September }% 2018 in Santa Clara County, CA. : 14 - GARYB. WESLEY: 707 Continental Circle #424 Mountain View, CA 94040 -3- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER