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ROBERT T. TANG, Esq., SBN 296544
The Law Office of Robert T. Tang
1580 Oakland Road, #0205
San Jose, CA 95131
{408) 816-8098
Attorney for Plaintitts,
TAN NGUYEN, NGHIA NGUYEN, and
KIM THUY HO.
Case No.: 17CV318151
SAN FRANCISCO PIZZA, INC.; TAN NGUYEN:
NGHIA NGUYEN; and KIM THUY HO,
PLAINTIFFS TAN
Plaintiffs, NGUYEN, NGHIA
10 NGUYEN, AND KIM
THUY HO’S
1 v. OPPOSITION TO
DEFENDANTS
12 VIETNAM TOWN CONDOMINIUM OWNERS VIETNAM TOWN
ASSOCIATION, INC.; MATRIX ASSOCIATION CONDOMINIUM
13 MANAGEMENT, JOSEPH NGUYEN, an Individual; OWNERS
KHANH CAO HUU, an Individual; JOANY YUIN, an ASSOCIATION, INC.,
14 Individual; NGOC BUI, an Individual; LAP T. TANG, JOSEPH NGUYEN,
an Individual; MICHAEL JOHNSON, an Individual; KHANH CAG
15 DAVID ALVARADO, an Individual; and DOES 1 through HUU, AND JOANY
50 inclusive, YUIN’S DEMURRER
16 TO PLAINTIFFS’
FIRST AMENDED
17 Defendants. COMPLAINT
18 | (Complaint filed October 25, 2017)
19
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ai Plaintiffs Tan Nguyen. Nghia Nguyen, and Kim Thuy Ho (collectively referred to as “Plaintiffs)
22 hereby submit this Memorandum of Points and Authorities in opposition of Demurrer of Vietnam
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Town Condominiuin Owners Association, Inc. (“Association”). Joseph Nguyen, Khanh Cao Huu, and
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Joany Yuin (collectively referred to as “Defendants") to the First Amended Complaint (“FAC”).
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PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO.
DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN,
KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS’ FIRST
AMENDED COMPLAINT
TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF AUTHORITIES
INTRODUCTI
BACKGROUND
STANDARD OF REVIEW.
ARGUMENT
1 PLAINTIFFS’ CAUSE OF ACTION AGAINST DEFENDANTS ARE NOT SUBJECT
TO GENERAL AND SPECIAL DEMURRER.
A. PLAINTIFFS” CLAIMS OF TRESPASS AND CONVERSION DO NOT FAIL TO.
STATE A CAUSE OF ACTION AND iS CERTAIN.
10 B. PLAINTIFFS’ THIRD CAUSE OF ACTION FOR INT! ENTIONAL. INTERFERENCE
WITH PROSPECTIVE ECONOMIC ADVANTAGE DOES NOT FAIL TO STATE
YH SUFFICIENT FACTS AND 1S NOT UNCERTAIN......... 8
C. PLAINTIFFS’ FOURTH CAUSE OF ACTION FOR BREACH OF CONTRACT. 11
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D. DEFENDANTS’ CLAIM THAT PLAINTIFFS” FIFTH CAUSE OF ACTION FOR D
13 DECLARATORY RELIEF !S SUPERFLUOUS BECAUSE THESE ISSUE
UNDERLIE EACH OF PLAINTIFFS’ FIRST, SECOND. THIRD. AND FOURTH
14 CAUSES OF ACTION SHOUD BE DENIED. 14
£. DEFENDANTS CLAIM THAT PLAINTIFFS’ SEVENTH CAUSE OF CTION
15 FAILS TO STATE A CAUSE OF ACTION OR NEGLIGENT MISREPRESENTATION
{S UNCERTAIN BECAUSE IT ONLY STATES A SINGLE. VAGUE ALLEGATION
16 THAT THE “BOARD” ANNOUNCED PERMISSION WAS NO LONGER REQUIRED
TO USE A UNIT AS A “FOOD UNIT” ES DISINGENUOUS AS THE DEFENDANTS
17 ARE ONLY ADDRESSING PARAGRAPH 9. i
F. DEFENDANTS CLAIM THAT PLAINTIFFS FAIL TO STATE A CAUSE OF
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ACTION FOR UNLAWFUL BUSINESS PRACTICES BECAUSE THE
19 ASSOCIATION OR ITS INDIVIDUALLY NAMED DIRECTORS AREA
BUSINESS ENITTY AT ALL FOR THE PURPOSES OF SECTION 17200
20 SHOULD BE DENIED. 15
1. DEFENDANTS’ CLAI THAT THE COMPLAINT IS NOT A VERIFIED
21 PLEADING AND DOES NOT CONTAIN AN LINCERTAIN PURPORTED
VERIFICATIC
22 CONCLUSION,
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PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO
DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN,
KHANH CAO HUU, AND JOANY YUEN'S DEMURRER TO PLAINTIFFS’ FIRST
AMENDED COMPLAINT
TABLE OF AUTHORITIES
CALIFORNIA CASES
(Zhang v. Superior Court (2013) 57 Cal.4th 364, 370.).... 5
(Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924.) ooo ccceee 6
(Mendoza v. JPMorgan Chase Bank, N.A. (3rd Dist., 2016) 6 Cal. App.Sth 802, 809.}.......00.004 6
(City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.) .
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PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO
DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN,
IKHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS’ FIRST
AMENDED COMPLAINT
I, INTRODUCTION
This dispute actually arose out of the Association’s unlawful act of altering the Plaintiff's gas line
without prior notice. Notwithstanding the issue of whether the Plaintiffs’ received approval to convert
their unit for food use. the Association is still required to abide by the CC&Rs [§ 2.3 (B)] which
requires that they provide thirty (30) days notice to the Plaintiffs prior to taking any action and they
are also required by law to obtain a permit to alter a gas line that has already been installed [Ex. B. to
Defendants Request for Judicial Notice file in Support of Motion to Strike ("RJN”)]. Plaintiffs had
10 obtained approval from Defendant David Alvarado (“Defendant Alvarado”) who works for Matrix
ik
Management, the managing agent for the Association. The Board in accordance with the CC&R [§
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5.2 (M)] has a right to delegate its duties to the managing agent { Ex. B to Defendants’ RIN). As
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i4 such, the approval from Defendant Alvarado binds the Association. The Board meeting minutes for
43 the years of 2016, 2017, 2018 prior to the filing of this lawsuit did not have a single discussion
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regarding an application of a unit owner who wanted to convert their interior retail unit into a
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restaurant, There are currently 17 interior retail units that have been converted into a food use unit
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19 without written approval. One of these units, unit 9030, has a gas line that was marked “9030
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TAKEOUT RESTAURANT HOT POT CALL DAVID HOA.” Given thar the Board meeting
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minutes and Defendant Nguyen, the president of the Board, confirmed that they did not address a
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single unit for conversion and units have been converted and operating as a food use unit with at
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24 least one unit, unit 9030, has been confirmed do be approved by “David HOA." in addition, several
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emails between Plaintiff Kim Thuy Ho (“Plaintiff Ho") and Defendant Alvarado pertaining to having
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approva} to install the gas line be put in writing and its subsequent approval by Defendant Alvarado
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28 never once
i
PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO
DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN,
KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS’ FIRST
AMENDED COMPLAINT
mentioned that the process would be reviewed by the Association. Defendant Alvarado asked for the
information such as approvals obtained from the City to approve it and after receiving this
information he would be recommending approval. Unfortunately, during the Plaintiffs’ request for a
preliminary injunction hearing on November 7, 2017, Plaintiffs’ former attorney. Michael Ackerman,
Esq., failed to produce these emails and failed to demand that Defendant Nguyen produce the permits
that are required to alter an existing gas line the is required by the City of San Jose to support his
claim that he had City approval. The exhibits submitted by Defendant Nguyen in support of his
10 declaration opposing the Plaintiffs’ request for a preliminary injunction did not contain any
1
documents from the City to support his claim. A search of the City of San Jose’s website did not
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indicate a permit was ever obtained by the Association to alter the gas line that the Plaintiffs had
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14 installed. In order for the Plaintiff to install the gas line, they obtained approval from PG&E as well
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as a permit from the City of San Jose, These were the documents that Defendant Alvarado had
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requested and subsequently stated in his email dated May 22, 2017 that he would be recommending
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approval. Therefore. Defendants allegation in their demurrer falsely claimed that the Plaintiffs did not
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19 have approval from relevant governmental agencies.
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Although a neighboring unit filed a lawsuit against Plaintiffs and the Association, the Association's
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settlement was self serving and unilaterally acted upon. The Association’s president, Defendant
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Nguyen, has a long standing business relationship with Defendant Lap T. Tang. Defendant Lap T.
24 Tang was the seller of the neighboring unit that brought the lawsuit against Plaintiffs and the
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Association for stealing her gas line. The Association made this decision despite the fact that
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Defendant Alvarado, their managing agent. responded to the neighboring unit owner's claim that her
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28 gas line was stolen by stating that “gas lines are not property of the unit owner.” The CC&R also
2
PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO.
DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN,
KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFES' FIRST
AMENDED COMPLAINT
clearly states that under Article H, § 2.2 {A)(EX. B to Defendants’ RIN):
“... The commonly shared plumbing, electrical wiring, telephone cables, and other utilities and
services located in the Utility Chase are part of the Building Common Area, owned in an undivided
interests by the owners..”
Therefore. it is clear that any owner may have access to the gas line. Furthermore, the neighboring
unit alleged that her installed gas line was stolen. This allegation was also false given that she never
installed a gas line. The City of San Jose does not show any permits authorizing the installation of a
10 gas line for her unit and she does no have a PG&E bill which would demonstrate that she has a gas,
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line approved by PG&E and was in use.
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Plaintiffs have both a PG&E bill as well as the permit from the City of San Jose for the installation of
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14 the gas line and was the first to use attached to the gas line. Given that the gas lines are owned in an
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undivided interest by the owners, as the first owner to install her gas line then she should have a
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superior right to other owners with regard the gas line that Plaintiffs have installed to their unit.
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As clearly demonstrated above, there are relevant provisions of the CC&Rs that support the
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19 Plaintiffs’ allegations and support their claims. Although Defendants claim in their demurrer that
20 Plaintiff Ho made admissions that were contradictory to the FAC’s allegations, they deceitfully left
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out the statement made by the Plaintiff Ho immediately following her statement in response to a
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question regarding permission from the HOA that that “there is permission from David Alvarado, but
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24 not from the board.” Both responses are consistent with the FAC given that the Plaintiffs have alleged
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that the authority to approve the conversion of interior units to a food use unit was delegated to
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Defendant Alvarado, Therefore, as long as the Plaintiffs had permission from Defendant Alvarado, it
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28 would bind the Association, however. there would not be a writing with permission from the HOA if
3
PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO
DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN,
KHANH CAO HUU, AND JOANY YUIN’S DEMURRER TO PLAINTIFFS’ FIRST
AMENDED COMPLAINT
the Association delegated this duty to Defendant Alvarado as discussed above.
Given that the Association acted without notice and in an unlawful manner by altering the Plaintiffs"
gas line without a permit from the City of San Jose and Plaintiffs’ had permission from Defendant
Alvarado as well as the relevant governmental agencies to instal! the gas line, Plaintiffs respectfully
request that Defendants’ demurrer should be denied in its entirety and grant the Plaintiffs’ leave to
amend, if necessary.
fl. BACKGROUN
10 Plaintiffs Tan Nguyen, hia Nguyen, and Kim Thuy Ho are the legal owners of he real property
Vy
commonly known as condominium Unit 9015 (“Unit”) at 999 Story Road, San Jose, California
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(FAC, 1). Prior to the purchase of unit 9015 the Board announced at a meeting for owners that food
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l4 units could be established in any units without additional permission (FAC, 9). Plaintiffs engaged
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Defendant Michael Johnson (“Defendant Johnson”) to represent them as their rest estate agent to
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purchase Unit 9015 in the Vietnam Town Condominium project. Prior to the purchase of Unit 9015.
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Plaintiffs informed Defendant Johnson that they were interested in purchasing a unit specifically for
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19 the purpose of opening a restaurant in the Unit. Defendant Johnson stated to Plaintiff Ho that he was
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intimately familiar with the units as he himself owned one and that there was no restriction on the use
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Unit 9015 to operate as a restaurant if they purchased the Lnit. On September 23, 2018, prior to
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escrow closing on the Unit, Plaintiffs retained the services of a licensed architect, Hau Ching Liao,
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24 who examined Unit 9015 in the presence of Defendant Johnson and a contractor, Tom Chau
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("Chau"), and discussed the preliminary floor plan for the Unit with Michael Johnson showing the
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layout of the restaurant (FAC 12 ). Plaintiff hired Tom Chau based on Defendant Johnson's
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28 recommendation. On September 28, 2018. plaintiffs purchased Unit 9015 in reliance upon the
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PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO
DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN,
KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS’ FIRST
AMENDED COMPLAINT
representations made by Defendant Johnson for $610,000.00 (FAC 13). On or about October 4, 2016
they entered into a lease agreement with San Francisco Pizza, Inc.
Around May 2017, Plaintiff Ho obtained approval from Defendant Alvarado, the property manager
for Matrix Association Management, the managing agent designated by the Association. Through
their course of conduct through at least the last three years, it was clear that the Association had
delegated its duties to Defendant Alvarado. The CC&Rs clearly indicate that the Association had the
power to delegate this duty to approve of the conversion of retail units to food units and under § 7.11
10 of the CC&Rs states that “in the event the Board fails to approve or disapprove plans and
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specifications in writing thirty (30) days after the same have been submitted to it, approval will not be
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required and the related covenants shall be deemed to have been fully complied with (Ex. B to
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14 Defendants’ RJN).”
{5
After Unit 9015 was ready to open there Pizzeria, without notice as required under the CC&Rs and
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without a permit as required by the City of San Jose, the Association altered the gas line that
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connected to Unit 9015. Without gas, Unit 9015 is unable to operate as a Pizza restaurant.
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19 Ill. STANDARD OF REVIEW
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A demurrer tests whether the complaint, or one or more of its causes of action, states facts sufficient
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to support a cause of action. (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370.) The complaint’s
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23 allegations are given a reasonable interpretation, and all material facts that are properly pled are
24 treated as admitted. (Id.}
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If the complaint staies a cause of action under any theory, regardless of the title under which the
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factual basis for reliefis stated, that aspect of the complaint is good against a demurrer. [W]e are not
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28 limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a
5
PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO
DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN,
KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS’ FIRST
AMENDED COMPLAINT
demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a
cause of action under any legal theory. (Id. [emphasis added].)
In considering a demurrer, the Court may consider not only the facts stated on the face of the
complaint, but facts of which judicial notice may properly be taken. (Yvanova v. New Century
Mortgage Corp. (2016) 62 Cal.4th 919, 924.)
Even ifa complaint is subject to demurrer. leave to amend should be granted liberally if there is any
reasonable possibility that the complaint can be amended to state a viable cause of action. (Mendoza
10 vy. JP Morgan Chase Bank, N.A. (3rd Dist., 2016} 6 Cal.App.Sth 802, 809.) Only when the complaint
1
shows on its face that it is incapable of amendment should an initial demurrer be granted without
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leave to amend. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.)
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14 Iv. ARGUMENT
15 I. PLAINTIFFS CAUSE OF ACTION AGAINST DEFENDANTS ARE NOT SUBJECT TO
16 GENERAL AND SPECIAL DEMURRER
17 A. PLAINTIFFS’ CLAIMS OF TRESPASS AND CONVERSION DO NOT FAIL TO STATE A
CAUSE OF ACTION AND IS CERTAIN
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19 Defendants admitted on page 6, line 8, of their demurrer that “...Plaintiffs claim disconnection of a
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gas line and denying access to the common area’ to access the gas line are sufficient factual
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contentions to sustain claims of trespass and conversion.”
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23 Although Defendants attack the truth of the contentions by alleging that they are directly refuted by
24 other allegations made in the FAC, judicially noticeable documents, and testimony.
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(1) The Defendants’ claim that gas lines are defined as Utility Facilities in the CC&Rs and the
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Association has the exclusive right to maintain, repair, replace, restore, operate, and manage alt
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28 common area utility facilities. [Ex. B to Defendants’ RIN at §§ 6.1; 5.1(A)(1).).]
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PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO
DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN,
KHANH CAO HUU, AND JOANY YUIN’S DEMURRER TO PLAINTIFFS’ FIRST
AMENDED COMPLAINT
No where in §§ 6.1; 5.1(A)(1) does it state that the Association has “exclusive” rights as it pertains to
the Utility Facilities, Plaintiffs incorporates the relevant arguments made in their concurrently filed
opposition papers to Defendants’ Attempt to strike the Plaintiffs’ claim for punitive damages.
(2) Defendants claim the Plaintiffs failed to allege that the Defendants removed the unauthorized gas
line installed.
Plaintiffs’ installation of the gas line was authorized given that a permit to do so was obtained from
the City of San Jose and the installation of the meter to the gas line was performed by PG&E.
10 However, it was Defendants alteration of the gas line by disconnecting it was unauthorized given that
1
they never obtained the necessary permit to do so. Had Defendants submitted an application for a
permit, they would know that a plan would need to be submitted to show where the gas line should be
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14 altered and that there is only specific locations along that the gas line that can be altered in the
15 common area in order to only effect Unit 9015. This is the same Jocation where the Defendants
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disconnected the gas line.
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Furthermore, regardless of where you cut along the gas line, any alteration of the gas line requires a
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19 permit from the Ciry of San Jose. Defendant Joseph Nguyen (“Defendant Nguyen”), president of the
20 Board, stated in his declaration in opposition to the Plaintiffs’ request for a preliminary injunction
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that he obtained approval from the City. Even Defendant Nguyen admitted that approval from the
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City was needed and this would be in the form of a permit, which Defendants never obtained.
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24 Therefore, their act was unlawful regardless of whether a gas line was approved or not.
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3) Defendants allege that Plaintiff Ho admitted under oath that the Association never authorized
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restaurant use of a gas line to service the unit.
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28 Plaintiffs alleged in their FAC that the authority to approve a unit for use was delegated to Defendant
7
PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO
DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN,
KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS’ FIRST
AMENDED COMPLAINT
Alvarado (referred to as “Defendant Alvarado”) and there were no written approvals. Therefore. her
statement that she did not have authorization from the HOA is accurate and consistent with the
pleadings of the Complaint given that it is Defendant Alvarado who has been delegated this authority.
His decision would then bind the HOA. Plaintiff Ho mistakenly stated that the emails from Defendant
Alvarado stated “I support you” rather than “I recommend approval” because she had to recall it from
her memory given that her former attorney had submitted emails that were not a complete series of
the ones between herself and Defendant Alvarado that clearly indicated that Plaintiff Ho had approval
10 from Defendant Alvarado. The emails that should have been admitted are discussed in the Plaintiffs’
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opposition papers to Defendants’ motion to strike and incorporated herein.
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Defendants are attempting to use Plaintiffs faulty recollection to bind her to a statement that she made
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14 during the preliminary injunction hearing when they are fully aware and were provided with the
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emails referred to above which clearly indicated that Defendant Alvarado stated “I will be
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recommending approval to the Board” and subsequently stated to another unit owner who directly
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questioned Plaintiffs authority to operate as a restaurant that “...the Board has previously granted
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19 approval for a nonfood unit to be approved as a food unit...”
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Given that the Defendants have failed to demonstrate that the contentions are directly refuted by other
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allegations made in the FAC, judicially noticeable documents, and testimony, the Defendants’
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23 Demurrer should be denied. If a complaint is subject to demurrer, leave to amend should be granted
24 liberally if there is any reasonable possibility that the complaint can be amended to state a viable
25
cause of action.
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B. PLAINTIFFS’ THIRD CAUSE OF ACTION FOR INTENTIONAL INTERFERENCE WITH
27 PROSPECTIVE ECONOMIC ADVANTAGE DOES NOT FAIL TO STATE SUFFICIENT FACTS
28 AND IS NOT UNCERTAIN
8
PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO
DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN,
KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS’ FIRST
AMENDED COMPLAINT
1. Defendants state that to allege for a viable cause of action for intentional interference with
prospective economic advantage, Plaintiffs must allege not only the basic elements of such a claim,
but also facts sufficient to establish the allegedly interfering acts were were independently wrongful
beyond the mere fact of interference itself.
As stated above, under [(A)(2), any alteration of the gas line requires a permit from the City of San
Jose. Defendant Joseph Nguyen (“Defendant Nguyen”), president of the Board, stated in his
declaration in opposition to the Plaintiffs’ request for a preliminary injunction that he obtained
10 approval from the City. Defendant Nguyen admitted that approval from the City was needed and this
It
would be in the form of a permit, which Defendant Nguyen does not have. n addition, Plaintiffs
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never received notice of the act as required by the CC&Rs (Ex. B to Defendants’ RJN § 2.3(B)).
13
14 In addition, after Defendant Alvarado stated that he was recommending approval in his email dated
15 May 22, 2017, the Board did not take any action to correct him for 5 months, past the thirty (30) days
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they were required to respond. The Association did no alter the gas line until October 21. 2017.
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2) Defendants’ claim that the Association has exclusive right to control access to the common area,
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19 including Utility Facilities such as gas lines, and to otherwise manage and operate the same has been
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addressed above under I(A){1) above and proven te be inaccurate.
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3) Defendants claim that the Association was entirely justified in disconnecting Plaintiffs’
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23 unauthorized utility 10 restore service to the as-built gas line that exclusively serviced the neighbor's
24 restaurant is inaccurate.
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Plaintiffs installation of the gas line was authorized given that they obtained approval! from Defendant
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Alvarado discussed above under . In addition to disconnecting an authorized gas line. the Association
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28 did not provide notice as required by the CC&Rs and did not obtain a permit as required by the City
9
[PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO
DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN,
IKHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS' FIRST
AMENDED COMPLAINT
of San Jose before altering the gas line. Defendants unlawful act of altering the gas line is discussed
above under 1(B)(1).
In addition, as discussed above, Defendant Alvarado stated that he was recommending approval in
his email dated May 22, 2017, the Board did not take any action to correct him for 5 months. The
Association did no alter the gas line unti! October 21, 2017. According to Ex. B to Defendants’ RIN
CC&Rs §7.11, approval wil! not be required and the related covenants shall be deemed to have been
fully complied with if the Board does not respond in writing within thirty (30) days,
10 4)Defendants claim there act of altering the gas line was supported by the Order of Judge Persky
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which rejected Plaintiffs’ request for a preliminary injunction to restore gas line services/access and
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expressly concluded a preliminary injunction would “not preserve the status quo pending trial.”
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14 Judge Persky's decision was based primarily on the fact that Plaintiff Ho did net introduce the email
15 (Defendants* RIN page 3 of Order Denying Plaintiff's Request for Preliminary Injunction) that
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supports her claim that she had permission to build a restaurant. Unfortunately, Plaintiffs former
\7
18 attorneys only introduced an email from Defendant Alvarado relating to a letter Defendant Alvarado
19 helped Plaintiffs draft regarding a dispute with JT9039 LLC pertaining to Plaintiffs” gas line that was
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tampered with. The following are excerpts of pertinent parts of the emails between Plaintiff Ho and
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Defendant Alvarado that the former attorneys should have submitted. They are the emails Plaintiff
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23 how had anticipated would be introduced but were not. In addition, these emails (discussed above)
24 were provided to the Defendants’ attomeys in response to their meet and confer letter for this
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demurrer.
26
Furthermore. Judge Persky used Exhibit D of the CC&Rs to determine that the status quo, which
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28 indicated that only comers Units were allowed to be used as a food use Unit. At the time when the
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PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO’'S OPPOSITION TO
DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN,
KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS’ FIRST
AMENDED COMPLAINT
hearing was held. there were 17 interior units that are once retail that had been converted to a food
use unit without written approval. According to the Board meeting minutes and the deposition of
Defendant Nguyen on September 26, 2018, not a single application to convert an interior Unit to a
food use Unit was approved or denied. Therefore, none of the 17 interior units that have been
converted to a food use unit received a written approval or had even submitted an application te the
Board.
5) Defendants claim that San Francisco Pizza plead facts as to support an inference of “independently
10 wrongful” conduct necessary to state a cause of action for intentional interference with prospective
11
economic advantage is inaccurate as discussed above in I(B)(1).
12
C. PLAINTIFFS’ FOURTH CAUSE OF ACTION FOR BREACH OF CONTRACT
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14 1. Defendants claim that the Plaintiffs Fail to State Facts Sufficient to Constitute a Cause of Action is
15 inaccurate.
16
{i)Plaintiff Tan Nguyen’s (“Plaintiff Nguyen”) Commercial Property Purchase Agreement and Joint
17
Escrow Instructions (“Agreement”) contract (Ex. A to Plaintiffs’ Request for Judicial Notice of file
18
19 in Opposition of Motion to Strike and Demurrer (RJN)), under provision 11(F). Buyer’s approval of
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Ci disclosures, is a contingency of the Agreement. This provision of the contract indicates that
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Plaintiff Nguyen and his successors would be bound to the terms of the CC&Rs, imposes certain
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23 duties on the Association. Furthermore, according to Ex. B to Defendants’ RIN CC&Rs §7.12 (A),
24 Occupants. such as Plaintiffs San Francisco Pizza, Inc. upon signing their “lease will be subject to
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these Rules and regulations whether they are included within the lease or not.” Therefore, the
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purchase and lease contracts which have incorporated the terms of the CC&Rs and a failure to
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28 comply with any part of the CC&Rs is a breach of contract.
1k
PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO.
DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN,
KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS' FIRST
AMENDED COMPLAINT
(ii) Defendants allegation that the Plaintiffs failure to attach the contract to the complaint or have
failed to attach any provisions of the CC&Rs or incorporate such provisions into the FAC to explain
the meaning of “Exhibit D” that was attached was more than an oversight but an attempt to sidestep
the following provisions that defeat their claim are inaccurate.
(a) Requirement that prior approval from the Board of Directors to construct gas lines:
Plaintiffs FAC alleges that the Board had delegated its duty to Defendant Alvarado to approve the
conversion of interior retail Units to a food use Unit and they have done so as discussed above.
10 Therefore, this provision does not defeat the Plaintiffs claims has not been the procedure for years. As
i
discussed above, the Board meeting Minutes and the deposition of Defendant Nguyen clearly show
12
that not a single application was ever discussed for approval over at least the past 3 years prior to this
13
14 lawsuit. However, there are 17 interior units that have been converted to food use. one of which, Unit
15
9030 had its gas line labeled “9030 TAKEOUT RESTAURANT HOT POT CALL DAVID HOA.”
16
In addition, as discussed above, Defendant Alvarado stated that he was recommending approval in
17
his email dated May 22, 2017. the Board did not take any action to correct him for 5 months. The
18
19 Association did no alter the gas line unti! October 21, 2017. According to Defendants’ RIN CC&Rs
20
§7.11, approval will not be required and the related covenants shal! be deemed to have been fully
21
complied with ifthe Board does net respond in writing within thirty (30) days.
22
(b) Requiring approval from the membership to grant an exclusive use easement over common area
23
24 where a new gas line was constructed.
25
Plaintiffs did not allege that they constructed a new gas line over a common area that required
26
approval. All gas lines have been pre-installed
just as with other utility lines in a building.
27
28 (c) Requiring written approval to alter any structural elements inside their unit.
2
PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO
DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN,
KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS’ FIRST
AMENDED COMPLAINT
As indicated above, the Board delegated the authority to approve a Unit to be converted for food use
to Defendant Alvarado and failed to take any action within the thirty (30) day period. This is also
addressed below in (d).
(d) Mandating prior approval to change use of a unit from retail to restaurant.
This issue has been discussed numerous times above and it is clear that Plaintiffs obtained approval
from Defendant Alvarado who had been delegated this authority and according to Defendants’ RIN
CC&Rs §7.11, “approval will not be required and the related covenants shall be deemed to have been
10 fully complied with if the Board does not respond in writing within thirty (30) days.” It was 5 months
It
before the Board altered the gas line to Unit 9015 without a permit from the City of San Jose and
12
without providing notice.
13
14 iti) Defendants claim that Plaintiffs FAC make contradictory allegations by stating that they had
45 “express permission and consent” of the Association and alleging that the Association failed to
16
consider and approve/disapprove their application are inaccurate.
\7
It is not inconsistent because the permission was obtained through Defendant Alvarado whose acts
18
19 binds the Board and shouid be treated no differently then if it was the Board expressly made the
20
statement themselves and as discussed previously, approval is not required if the Board does not
21
respond in writing within thirty (30) days.
22
2. Defendants claim that Plaintiff San Francisco Pizza fails to plead facts showing it may assert a
23
24 breach of Contract Claim based upon CC&Rs to which it is not a party fails.
25
According to Ex. B to Defendants’ RJN CC&Rs §7.12 (A), Occupants, such as Plaintiffs San
26
Francisco Pizza, Inc. upon signing their “lease will be subject to these Rules and regulations whether
27
28 they are included within the lease or not.” Therefore. the lease contract incorporated the terms of the
3
PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO
DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN,
KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS’ FIRST
AMENDED COMPLAINT
CC&Rs and a failure to comply with any part of the CC&Rs is a breach of contract. As a party to the
contract, Plaintiff San Francisco Pizza. Inc. directly benefits as it is intended to.
Accordingly, San Francisco Pizza, Inc.’s breach of contract cause of action against the Association
does not fail and the Defendants Demurrer should be denied and/or Plaintiff San Francisco Pizza, Inc.
should be allowed leave to amend.
D. Defendants claim that Plaintiffs’ Fifth Cause of Action for Declaratory Relief is Superfluous
because these issues underlie each of Plaintiffs’ first, second. third, and fourth causes of action should
10 be denied.
11
A judicial declaration that Unit 9015 is approved for use as a restaurant and entitled to access and use
12
of the gas line is will allow the Plaintiffs to a form of relief that his different from those sought in the
13
14 first, second, third, and fourth causes of action. Each of these causes of action are seeking
5
compensatory and punitive damages. Whereas, the Declaratory Relief will allow the Plaintiffs to
16
reconnect their gas line and mitigate any further damages.
7
Therefore. Defendants Demurrer to Plaintiffs’ fifth cause of action for declaratory relief should be
18
19 denied andor Plaintiffs should be allowed leave to amend.
20
E. Defendants claim that Plaintiffs’ Seventh Cause of Action fails to state a cause of action for
21
Negligent misrepresentation and is uncertain because it only states a single, vague allegation that the
22
23 “Board” announced permission was no longer required to use a unit as a “food unit” is disingenuous
24 as the Defendants are only addressing paragraph 9.
2$
Plaintiffs have made additional factual allegations under the Seventh Cause of Action heading in the
26
FAC paragraph 53, which discusses Defendant Alvarado’s acts that bind the Board which is
27
28 consistent with the statement made in paragraph 9, that together provided no reasonable basis for
14
PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO
DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN,
KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS' FIRST
AMENDED COMPLAINT
Plaintiffs to believe them to be false.
Therefore, Defendants Demurrer to Plaintiffs* seventh cause of action for negligent misrepresentation
should be denied and/or Plaintiffs should be allowed leave to amend.
F. Defendants claim that Plaintiffs Fail to State a Cause of Action for Unlawful Business Practices
because the Association or its individually named directors are a business entity at all for the
purposes of Section 17200 should be denied.
Defendant Joseph Nguyen, president of the Board. stated in his deposition dated September 26, 2017
10 (Ex. B to Plaimiffs’ RJN) that he was an employee of Vietnam Town Property, LLC. that owns the
Wy
unsold units in the Vietmam Town complex. The members of the Board are aware of and allowed
12
Defendant Nguyen to abuse his authority for his own and/or company’s benefit.
43
14 As such Defendants Demurrer to Plaintiffs Cause of Action for Unlawful business practices should be
15 denied and/or Plaintiffs should be allowed leave to amend.
16
IL. Defendants’ claim that the Complaint is not a verified pleading and contains an uncertain
17
purported verification.
18
19 Plaintiffs incorporate the same arguments made in Plaintiffs" opposition papers to Defendants"
20
attempt to strike Plaintiffs purported verification.
21
¥. CONCLUSION
22
23 Defendants’ Demurrer should be denied and so that this case can move forward to resolution on its
24 merits.
hy
0
25
ar
26 Dated: September 11. 2018 4, LLA
ert T. Tang, Esq.
27 Attorney for P! tiffs T, ‘ NGUYEN,
28 NGHIA, UYEN. ai KIM THUY HO.
15
PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM HO'S OPP; ITION TO
DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIA, (ON, ENC., JOSEPH NGUYEN,
KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO INTIFFS' FIRST
AMENDED COMPLAINT
Preview
ROBERT T. TANG, Esq., SBN 296544 The Law Office of Robert T. Tang 1580 Oakland Road, #0205 San Jose, CA 95131 {408) 816-8098 Attorney for Plaintitts, TAN NGUYEN, NGHIA NGUYEN, and KIM THUY HO. Case No.: 17CV318151 SAN FRANCISCO PIZZA, INC.; TAN NGUYEN: NGHIA NGUYEN; and KIM THUY HO, PLAINTIFFS TAN Plaintiffs, NGUYEN, NGHIA 10 NGUYEN, AND KIM THUY HO’S 1 v. OPPOSITION TO DEFENDANTS 12 VIETNAM TOWN CONDOMINIUM OWNERS VIETNAM TOWN ASSOCIATION, INC.; MATRIX ASSOCIATION CONDOMINIUM 13 MANAGEMENT, JOSEPH NGUYEN, an Individual; OWNERS KHANH CAO HUU, an Individual; JOANY YUIN, an ASSOCIATION, INC., 14 Individual; NGOC BUI, an Individual; LAP T. TANG, JOSEPH NGUYEN, an Individual; MICHAEL JOHNSON, an Individual; KHANH CAG 15 DAVID ALVARADO, an Individual; and DOES 1 through HUU, AND JOANY 50 inclusive, YUIN’S DEMURRER 16 TO PLAINTIFFS’ FIRST AMENDED 17 Defendants. COMPLAINT 18 | (Complaint filed October 25, 2017) 19 20 ai Plaintiffs Tan Nguyen. Nghia Nguyen, and Kim Thuy Ho (collectively referred to as “Plaintiffs) 22 hereby submit this Memorandum of Points and Authorities in opposition of Demurrer of Vietnam 23 Town Condominiuin Owners Association, Inc. (“Association”). Joseph Nguyen, Khanh Cao Huu, and 24 Joany Yuin (collectively referred to as “Defendants") to the First Amended Complaint (“FAC”). 25 26 27 28 PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO. DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF AUTHORITIES INTRODUCTI BACKGROUND STANDARD OF REVIEW. ARGUMENT 1 PLAINTIFFS’ CAUSE OF ACTION AGAINST DEFENDANTS ARE NOT SUBJECT TO GENERAL AND SPECIAL DEMURRER. A. PLAINTIFFS” CLAIMS OF TRESPASS AND CONVERSION DO NOT FAIL TO. STATE A CAUSE OF ACTION AND iS CERTAIN. 10 B. PLAINTIFFS’ THIRD CAUSE OF ACTION FOR INT! ENTIONAL. INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE DOES NOT FAIL TO STATE YH SUFFICIENT FACTS AND 1S NOT UNCERTAIN......... 8 C. PLAINTIFFS’ FOURTH CAUSE OF ACTION FOR BREACH OF CONTRACT. 11 12 D. DEFENDANTS’ CLAIM THAT PLAINTIFFS” FIFTH CAUSE OF ACTION FOR D 13 DECLARATORY RELIEF !S SUPERFLUOUS BECAUSE THESE ISSUE UNDERLIE EACH OF PLAINTIFFS’ FIRST, SECOND. THIRD. AND FOURTH 14 CAUSES OF ACTION SHOUD BE DENIED. 14 £. DEFENDANTS CLAIM THAT PLAINTIFFS’ SEVENTH CAUSE OF CTION 15 FAILS TO STATE A CAUSE OF ACTION OR NEGLIGENT MISREPRESENTATION {S UNCERTAIN BECAUSE IT ONLY STATES A SINGLE. VAGUE ALLEGATION 16 THAT THE “BOARD” ANNOUNCED PERMISSION WAS NO LONGER REQUIRED TO USE A UNIT AS A “FOOD UNIT” ES DISINGENUOUS AS THE DEFENDANTS 17 ARE ONLY ADDRESSING PARAGRAPH 9. i F. DEFENDANTS CLAIM THAT PLAINTIFFS FAIL TO STATE A CAUSE OF 18 ACTION FOR UNLAWFUL BUSINESS PRACTICES BECAUSE THE 19 ASSOCIATION OR ITS INDIVIDUALLY NAMED DIRECTORS AREA BUSINESS ENITTY AT ALL FOR THE PURPOSES OF SECTION 17200 20 SHOULD BE DENIED. 15 1. DEFENDANTS’ CLAI THAT THE COMPLAINT IS NOT A VERIFIED 21 PLEADING AND DOES NOT CONTAIN AN LINCERTAIN PURPORTED VERIFICATIC 22 CONCLUSION, 23 24 25 26 27 28 i PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUEN'S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT TABLE OF AUTHORITIES CALIFORNIA CASES (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370.).... 5 (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924.) ooo ccceee 6 (Mendoza v. JPMorgan Chase Bank, N.A. (3rd Dist., 2016) 6 Cal. App.Sth 802, 809.}.......00.004 6 (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.) . 10 iL 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN, IKHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT I, INTRODUCTION This dispute actually arose out of the Association’s unlawful act of altering the Plaintiff's gas line without prior notice. Notwithstanding the issue of whether the Plaintiffs’ received approval to convert their unit for food use. the Association is still required to abide by the CC&Rs [§ 2.3 (B)] which requires that they provide thirty (30) days notice to the Plaintiffs prior to taking any action and they are also required by law to obtain a permit to alter a gas line that has already been installed [Ex. B. to Defendants Request for Judicial Notice file in Support of Motion to Strike ("RJN”)]. Plaintiffs had 10 obtained approval from Defendant David Alvarado (“Defendant Alvarado”) who works for Matrix ik Management, the managing agent for the Association. The Board in accordance with the CC&R [§ 12 5.2 (M)] has a right to delegate its duties to the managing agent { Ex. B to Defendants’ RIN). As 13 i4 such, the approval from Defendant Alvarado binds the Association. The Board meeting minutes for 43 the years of 2016, 2017, 2018 prior to the filing of this lawsuit did not have a single discussion 16 regarding an application of a unit owner who wanted to convert their interior retail unit into a 17 restaurant, There are currently 17 interior retail units that have been converted into a food use unit 18 19 without written approval. One of these units, unit 9030, has a gas line that was marked “9030 20 TAKEOUT RESTAURANT HOT POT CALL DAVID HOA.” Given thar the Board meeting 21 minutes and Defendant Nguyen, the president of the Board, confirmed that they did not address a 22 single unit for conversion and units have been converted and operating as a food use unit with at 23 24 least one unit, unit 9030, has been confirmed do be approved by “David HOA." in addition, several 25 emails between Plaintiff Kim Thuy Ho (“Plaintiff Ho") and Defendant Alvarado pertaining to having 26 approva} to install the gas line be put in writing and its subsequent approval by Defendant Alvarado 27 28 never once i PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT mentioned that the process would be reviewed by the Association. Defendant Alvarado asked for the information such as approvals obtained from the City to approve it and after receiving this information he would be recommending approval. Unfortunately, during the Plaintiffs’ request for a preliminary injunction hearing on November 7, 2017, Plaintiffs’ former attorney. Michael Ackerman, Esq., failed to produce these emails and failed to demand that Defendant Nguyen produce the permits that are required to alter an existing gas line the is required by the City of San Jose to support his claim that he had City approval. The exhibits submitted by Defendant Nguyen in support of his 10 declaration opposing the Plaintiffs’ request for a preliminary injunction did not contain any 1 documents from the City to support his claim. A search of the City of San Jose’s website did not 12 indicate a permit was ever obtained by the Association to alter the gas line that the Plaintiffs had 13 14 installed. In order for the Plaintiff to install the gas line, they obtained approval from PG&E as well 13 as a permit from the City of San Jose, These were the documents that Defendant Alvarado had 16 requested and subsequently stated in his email dated May 22, 2017 that he would be recommending 17 approval. Therefore. Defendants allegation in their demurrer falsely claimed that the Plaintiffs did not 18 19 have approval from relevant governmental agencies. 20 Although a neighboring unit filed a lawsuit against Plaintiffs and the Association, the Association's 21 settlement was self serving and unilaterally acted upon. The Association’s president, Defendant 22 Nguyen, has a long standing business relationship with Defendant Lap T. Tang. Defendant Lap T. 24 Tang was the seller of the neighboring unit that brought the lawsuit against Plaintiffs and the 2825 Association for stealing her gas line. The Association made this decision despite the fact that 26 Defendant Alvarado, their managing agent. responded to the neighboring unit owner's claim that her 27 28 gas line was stolen by stating that “gas lines are not property of the unit owner.” The CC&R also 2 PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO. DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFES' FIRST AMENDED COMPLAINT clearly states that under Article H, § 2.2 {A)(EX. B to Defendants’ RIN): “... The commonly shared plumbing, electrical wiring, telephone cables, and other utilities and services located in the Utility Chase are part of the Building Common Area, owned in an undivided interests by the owners..” Therefore. it is clear that any owner may have access to the gas line. Furthermore, the neighboring unit alleged that her installed gas line was stolen. This allegation was also false given that she never installed a gas line. The City of San Jose does not show any permits authorizing the installation of a 10 gas line for her unit and she does no have a PG&E bill which would demonstrate that she has a gas, 1 line approved by PG&E and was in use. 12 Plaintiffs have both a PG&E bill as well as the permit from the City of San Jose for the installation of 13 14 the gas line and was the first to use attached to the gas line. Given that the gas lines are owned in an 15 undivided interest by the owners, as the first owner to install her gas line then she should have a 16 superior right to other owners with regard the gas line that Plaintiffs have installed to their unit. 17 As clearly demonstrated above, there are relevant provisions of the CC&Rs that support the 18 19 Plaintiffs’ allegations and support their claims. Although Defendants claim in their demurrer that 20 Plaintiff Ho made admissions that were contradictory to the FAC’s allegations, they deceitfully left 21 out the statement made by the Plaintiff Ho immediately following her statement in response to a 22 question regarding permission from the HOA that that “there is permission from David Alvarado, but 23 24 not from the board.” Both responses are consistent with the FAC given that the Plaintiffs have alleged 28 that the authority to approve the conversion of interior units to a food use unit was delegated to 26 Defendant Alvarado, Therefore, as long as the Plaintiffs had permission from Defendant Alvarado, it 27 28 would bind the Association, however. there would not be a writing with permission from the HOA if 3 PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT the Association delegated this duty to Defendant Alvarado as discussed above. Given that the Association acted without notice and in an unlawful manner by altering the Plaintiffs" gas line without a permit from the City of San Jose and Plaintiffs’ had permission from Defendant Alvarado as well as the relevant governmental agencies to instal! the gas line, Plaintiffs respectfully request that Defendants’ demurrer should be denied in its entirety and grant the Plaintiffs’ leave to amend, if necessary. fl. BACKGROUN 10 Plaintiffs Tan Nguyen, hia Nguyen, and Kim Thuy Ho are the legal owners of he real property Vy commonly known as condominium Unit 9015 (“Unit”) at 999 Story Road, San Jose, California 12 (FAC, 1). Prior to the purchase of unit 9015 the Board announced at a meeting for owners that food 13 l4 units could be established in any units without additional permission (FAC, 9). Plaintiffs engaged 15 Defendant Michael Johnson (“Defendant Johnson”) to represent them as their rest estate agent to 16 purchase Unit 9015 in the Vietnam Town Condominium project. Prior to the purchase of Unit 9015. 17 Plaintiffs informed Defendant Johnson that they were interested in purchasing a unit specifically for 18 19 the purpose of opening a restaurant in the Unit. Defendant Johnson stated to Plaintiff Ho that he was 20 intimately familiar with the units as he himself owned one and that there was no restriction on the use 21 Unit 9015 to operate as a restaurant if they purchased the Lnit. On September 23, 2018, prior to 22 escrow closing on the Unit, Plaintiffs retained the services of a licensed architect, Hau Ching Liao, 23 24 who examined Unit 9015 in the presence of Defendant Johnson and a contractor, Tom Chau 25 ("Chau"), and discussed the preliminary floor plan for the Unit with Michael Johnson showing the 26 layout of the restaurant (FAC 12 ). Plaintiff hired Tom Chau based on Defendant Johnson's 27 28 recommendation. On September 28, 2018. plaintiffs purchased Unit 9015 in reliance upon the 4 PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT representations made by Defendant Johnson for $610,000.00 (FAC 13). On or about October 4, 2016 they entered into a lease agreement with San Francisco Pizza, Inc. Around May 2017, Plaintiff Ho obtained approval from Defendant Alvarado, the property manager for Matrix Association Management, the managing agent designated by the Association. Through their course of conduct through at least the last three years, it was clear that the Association had delegated its duties to Defendant Alvarado. The CC&Rs clearly indicate that the Association had the power to delegate this duty to approve of the conversion of retail units to food units and under § 7.11 10 of the CC&Rs states that “in the event the Board fails to approve or disapprove plans and 11 specifications in writing thirty (30) days after the same have been submitted to it, approval will not be 12 required and the related covenants shall be deemed to have been fully complied with (Ex. B to 13 14 Defendants’ RJN).” {5 After Unit 9015 was ready to open there Pizzeria, without notice as required under the CC&Rs and 16 without a permit as required by the City of San Jose, the Association altered the gas line that 17 connected to Unit 9015. Without gas, Unit 9015 is unable to operate as a Pizza restaurant. 18 19 Ill. STANDARD OF REVIEW 20 A demurrer tests whether the complaint, or one or more of its causes of action, states facts sufficient 21 to support a cause of action. (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370.) The complaint’s 22 23 allegations are given a reasonable interpretation, and all material facts that are properly pled are 24 treated as admitted. (Id.} 25 If the complaint staies a cause of action under any theory, regardless of the title under which the 26 factual basis for reliefis stated, that aspect of the complaint is good against a demurrer. [W]e are not 27 28 limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a 5 PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. (Id. [emphasis added].) In considering a demurrer, the Court may consider not only the facts stated on the face of the complaint, but facts of which judicial notice may properly be taken. (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924.) Even ifa complaint is subject to demurrer. leave to amend should be granted liberally if there is any reasonable possibility that the complaint can be amended to state a viable cause of action. (Mendoza 10 vy. JP Morgan Chase Bank, N.A. (3rd Dist., 2016} 6 Cal.App.Sth 802, 809.) Only when the complaint 1 shows on its face that it is incapable of amendment should an initial demurrer be granted without 12 leave to amend. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.) 13 14 Iv. ARGUMENT 15 I. PLAINTIFFS CAUSE OF ACTION AGAINST DEFENDANTS ARE NOT SUBJECT TO 16 GENERAL AND SPECIAL DEMURRER 17 A. PLAINTIFFS’ CLAIMS OF TRESPASS AND CONVERSION DO NOT FAIL TO STATE A CAUSE OF ACTION AND IS CERTAIN 18 19 Defendants admitted on page 6, line 8, of their demurrer that “...Plaintiffs claim disconnection of a 20 gas line and denying access to the common area’ to access the gas line are sufficient factual 21 contentions to sustain claims of trespass and conversion.” 22 23 Although Defendants attack the truth of the contentions by alleging that they are directly refuted by 24 other allegations made in the FAC, judicially noticeable documents, and testimony. 25 (1) The Defendants’ claim that gas lines are defined as Utility Facilities in the CC&Rs and the 26 Association has the exclusive right to maintain, repair, replace, restore, operate, and manage alt 27 28 common area utility facilities. [Ex. B to Defendants’ RIN at §§ 6.1; 5.1(A)(1).).] 6 PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT No where in §§ 6.1; 5.1(A)(1) does it state that the Association has “exclusive” rights as it pertains to the Utility Facilities, Plaintiffs incorporates the relevant arguments made in their concurrently filed opposition papers to Defendants’ Attempt to strike the Plaintiffs’ claim for punitive damages. (2) Defendants claim the Plaintiffs failed to allege that the Defendants removed the unauthorized gas line installed. Plaintiffs’ installation of the gas line was authorized given that a permit to do so was obtained from the City of San Jose and the installation of the meter to the gas line was performed by PG&E. 10 However, it was Defendants alteration of the gas line by disconnecting it was unauthorized given that 1 they never obtained the necessary permit to do so. Had Defendants submitted an application for a permit, they would know that a plan would need to be submitted to show where the gas line should be 13 14 altered and that there is only specific locations along that the gas line that can be altered in the 15 common area in order to only effect Unit 9015. This is the same Jocation where the Defendants 16 disconnected the gas line. 17 Furthermore, regardless of where you cut along the gas line, any alteration of the gas line requires a 18 19 permit from the Ciry of San Jose. Defendant Joseph Nguyen (“Defendant Nguyen”), president of the 20 Board, stated in his declaration in opposition to the Plaintiffs’ request for a preliminary injunction 21 that he obtained approval from the City. Even Defendant Nguyen admitted that approval from the 22 City was needed and this would be in the form of a permit, which Defendants never obtained. 23 24 Therefore, their act was unlawful regardless of whether a gas line was approved or not. 25 3) Defendants allege that Plaintiff Ho admitted under oath that the Association never authorized 26 restaurant use of a gas line to service the unit. 27 28 Plaintiffs alleged in their FAC that the authority to approve a unit for use was delegated to Defendant 7 PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT Alvarado (referred to as “Defendant Alvarado”) and there were no written approvals. Therefore. her statement that she did not have authorization from the HOA is accurate and consistent with the pleadings of the Complaint given that it is Defendant Alvarado who has been delegated this authority. His decision would then bind the HOA. Plaintiff Ho mistakenly stated that the emails from Defendant Alvarado stated “I support you” rather than “I recommend approval” because she had to recall it from her memory given that her former attorney had submitted emails that were not a complete series of the ones between herself and Defendant Alvarado that clearly indicated that Plaintiff Ho had approval 10 from Defendant Alvarado. The emails that should have been admitted are discussed in the Plaintiffs’ ll opposition papers to Defendants’ motion to strike and incorporated herein. 12 Defendants are attempting to use Plaintiffs faulty recollection to bind her to a statement that she made 13 14 during the preliminary injunction hearing when they are fully aware and were provided with the 15 emails referred to above which clearly indicated that Defendant Alvarado stated “I will be 16 recommending approval to the Board” and subsequently stated to another unit owner who directly 17 questioned Plaintiffs authority to operate as a restaurant that “...the Board has previously granted 18 19 approval for a nonfood unit to be approved as a food unit...” 20 Given that the Defendants have failed to demonstrate that the contentions are directly refuted by other 21 allegations made in the FAC, judicially noticeable documents, and testimony, the Defendants’ 22 23 Demurrer should be denied. If a complaint is subject to demurrer, leave to amend should be granted 24 liberally if there is any reasonable possibility that the complaint can be amended to state a viable 25 cause of action. 26 B. PLAINTIFFS’ THIRD CAUSE OF ACTION FOR INTENTIONAL INTERFERENCE WITH 27 PROSPECTIVE ECONOMIC ADVANTAGE DOES NOT FAIL TO STATE SUFFICIENT FACTS 28 AND IS NOT UNCERTAIN 8 PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT 1. Defendants state that to allege for a viable cause of action for intentional interference with prospective economic advantage, Plaintiffs must allege not only the basic elements of such a claim, but also facts sufficient to establish the allegedly interfering acts were were independently wrongful beyond the mere fact of interference itself. As stated above, under [(A)(2), any alteration of the gas line requires a permit from the City of San Jose. Defendant Joseph Nguyen (“Defendant Nguyen”), president of the Board, stated in his declaration in opposition to the Plaintiffs’ request for a preliminary injunction that he obtained 10 approval from the City. Defendant Nguyen admitted that approval from the City was needed and this It would be in the form of a permit, which Defendant Nguyen does not have. n addition, Plaintiffs 12 never received notice of the act as required by the CC&Rs (Ex. B to Defendants’ RJN § 2.3(B)). 13 14 In addition, after Defendant Alvarado stated that he was recommending approval in his email dated 15 May 22, 2017, the Board did not take any action to correct him for 5 months, past the thirty (30) days 16 they were required to respond. The Association did no alter the gas line until October 21. 2017. 7 2) Defendants’ claim that the Association has exclusive right to control access to the common area, 18 19 including Utility Facilities such as gas lines, and to otherwise manage and operate the same has been 20 addressed above under I(A){1) above and proven te be inaccurate. 21 3) Defendants claim that the Association was entirely justified in disconnecting Plaintiffs’ 22 23 unauthorized utility 10 restore service to the as-built gas line that exclusively serviced the neighbor's 24 restaurant is inaccurate. 25 Plaintiffs installation of the gas line was authorized given that they obtained approval! from Defendant 26 Alvarado discussed above under . In addition to disconnecting an authorized gas line. the Association 27 28 did not provide notice as required by the CC&Rs and did not obtain a permit as required by the City 9 [PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN, IKHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT of San Jose before altering the gas line. Defendants unlawful act of altering the gas line is discussed above under 1(B)(1). In addition, as discussed above, Defendant Alvarado stated that he was recommending approval in his email dated May 22, 2017, the Board did not take any action to correct him for 5 months. The Association did no alter the gas line unti! October 21, 2017. According to Ex. B to Defendants’ RIN CC&Rs §7.11, approval wil! not be required and the related covenants shall be deemed to have been fully complied with if the Board does not respond in writing within thirty (30) days, 10 4)Defendants claim there act of altering the gas line was supported by the Order of Judge Persky 11 which rejected Plaintiffs’ request for a preliminary injunction to restore gas line services/access and 12 expressly concluded a preliminary injunction would “not preserve the status quo pending trial.” 13 14 Judge Persky's decision was based primarily on the fact that Plaintiff Ho did net introduce the email 15 (Defendants* RIN page 3 of Order Denying Plaintiff's Request for Preliminary Injunction) that 16 supports her claim that she had permission to build a restaurant. Unfortunately, Plaintiffs former \7 18 attorneys only introduced an email from Defendant Alvarado relating to a letter Defendant Alvarado 19 helped Plaintiffs draft regarding a dispute with JT9039 LLC pertaining to Plaintiffs” gas line that was 20 tampered with. The following are excerpts of pertinent parts of the emails between Plaintiff Ho and 21 Defendant Alvarado that the former attorneys should have submitted. They are the emails Plaintiff 22 23 how had anticipated would be introduced but were not. In addition, these emails (discussed above) 24 were provided to the Defendants’ attomeys in response to their meet and confer letter for this 25 demurrer. 26 Furthermore. Judge Persky used Exhibit D of the CC&Rs to determine that the status quo, which 27 28 indicated that only comers Units were allowed to be used as a food use Unit. At the time when the 10 PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO’'S OPPOSITION TO DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT hearing was held. there were 17 interior units that are once retail that had been converted to a food use unit without written approval. According to the Board meeting minutes and the deposition of Defendant Nguyen on September 26, 2018, not a single application to convert an interior Unit to a food use Unit was approved or denied. Therefore, none of the 17 interior units that have been converted to a food use unit received a written approval or had even submitted an application te the Board. 5) Defendants claim that San Francisco Pizza plead facts as to support an inference of “independently 10 wrongful” conduct necessary to state a cause of action for intentional interference with prospective 11 economic advantage is inaccurate as discussed above in I(B)(1). 12 C. PLAINTIFFS’ FOURTH CAUSE OF ACTION FOR BREACH OF CONTRACT 13 14 1. Defendants claim that the Plaintiffs Fail to State Facts Sufficient to Constitute a Cause of Action is 15 inaccurate. 16 {i)Plaintiff Tan Nguyen’s (“Plaintiff Nguyen”) Commercial Property Purchase Agreement and Joint 17 Escrow Instructions (“Agreement”) contract (Ex. A to Plaintiffs’ Request for Judicial Notice of file 18 19 in Opposition of Motion to Strike and Demurrer (RJN)), under provision 11(F). Buyer’s approval of 20 Ci disclosures, is a contingency of the Agreement. This provision of the contract indicates that 21 Plaintiff Nguyen and his successors would be bound to the terms of the CC&Rs, imposes certain 22 23 duties on the Association. Furthermore, according to Ex. B to Defendants’ RIN CC&Rs §7.12 (A), 24 Occupants. such as Plaintiffs San Francisco Pizza, Inc. upon signing their “lease will be subject to 25 these Rules and regulations whether they are included within the lease or not.” Therefore, the 26 purchase and lease contracts which have incorporated the terms of the CC&Rs and a failure to 27 28 comply with any part of the CC&Rs is a breach of contract. 1k PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO. DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT (ii) Defendants allegation that the Plaintiffs failure to attach the contract to the complaint or have failed to attach any provisions of the CC&Rs or incorporate such provisions into the FAC to explain the meaning of “Exhibit D” that was attached was more than an oversight but an attempt to sidestep the following provisions that defeat their claim are inaccurate. (a) Requirement that prior approval from the Board of Directors to construct gas lines: Plaintiffs FAC alleges that the Board had delegated its duty to Defendant Alvarado to approve the conversion of interior retail Units to a food use Unit and they have done so as discussed above. 10 Therefore, this provision does not defeat the Plaintiffs claims has not been the procedure for years. As i discussed above, the Board meeting Minutes and the deposition of Defendant Nguyen clearly show 12 that not a single application was ever discussed for approval over at least the past 3 years prior to this 13 14 lawsuit. However, there are 17 interior units that have been converted to food use. one of which, Unit 15 9030 had its gas line labeled “9030 TAKEOUT RESTAURANT HOT POT CALL DAVID HOA.” 16 In addition, as discussed above, Defendant Alvarado stated that he was recommending approval in 17 his email dated May 22, 2017. the Board did not take any action to correct him for 5 months. The 18 19 Association did no alter the gas line unti! October 21, 2017. According to Defendants’ RIN CC&Rs 20 §7.11, approval will not be required and the related covenants shal! be deemed to have been fully 21 complied with ifthe Board does net respond in writing within thirty (30) days. 22 (b) Requiring approval from the membership to grant an exclusive use easement over common area 23 24 where a new gas line was constructed. 25 Plaintiffs did not allege that they constructed a new gas line over a common area that required 26 approval. All gas lines have been pre-installed just as with other utility lines in a building. 27 28 (c) Requiring written approval to alter any structural elements inside their unit. 2 PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT As indicated above, the Board delegated the authority to approve a Unit to be converted for food use to Defendant Alvarado and failed to take any action within the thirty (30) day period. This is also addressed below in (d). (d) Mandating prior approval to change use of a unit from retail to restaurant. This issue has been discussed numerous times above and it is clear that Plaintiffs obtained approval from Defendant Alvarado who had been delegated this authority and according to Defendants’ RIN CC&Rs §7.11, “approval will not be required and the related covenants shall be deemed to have been 10 fully complied with if the Board does not respond in writing within thirty (30) days.” It was 5 months It before the Board altered the gas line to Unit 9015 without a permit from the City of San Jose and 12 without providing notice. 13 14 iti) Defendants claim that Plaintiffs FAC make contradictory allegations by stating that they had 45 “express permission and consent” of the Association and alleging that the Association failed to 16 consider and approve/disapprove their application are inaccurate. \7 It is not inconsistent because the permission was obtained through Defendant Alvarado whose acts 18 19 binds the Board and shouid be treated no differently then if it was the Board expressly made the 20 statement themselves and as discussed previously, approval is not required if the Board does not 21 respond in writing within thirty (30) days. 22 2. Defendants claim that Plaintiff San Francisco Pizza fails to plead facts showing it may assert a 23 24 breach of Contract Claim based upon CC&Rs to which it is not a party fails. 25 According to Ex. B to Defendants’ RJN CC&Rs §7.12 (A), Occupants, such as Plaintiffs San 26 Francisco Pizza, Inc. upon signing their “lease will be subject to these Rules and regulations whether 27 28 they are included within the lease or not.” Therefore. the lease contract incorporated the terms of the 3 PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT CC&Rs and a failure to comply with any part of the CC&Rs is a breach of contract. As a party to the contract, Plaintiff San Francisco Pizza. Inc. directly benefits as it is intended to. Accordingly, San Francisco Pizza, Inc.’s breach of contract cause of action against the Association does not fail and the Defendants Demurrer should be denied and/or Plaintiff San Francisco Pizza, Inc. should be allowed leave to amend. D. Defendants claim that Plaintiffs’ Fifth Cause of Action for Declaratory Relief is Superfluous because these issues underlie each of Plaintiffs’ first, second. third, and fourth causes of action should 10 be denied. 11 A judicial declaration that Unit 9015 is approved for use as a restaurant and entitled to access and use 12 of the gas line is will allow the Plaintiffs to a form of relief that his different from those sought in the 13 14 first, second, third, and fourth causes of action. Each of these causes of action are seeking 5 compensatory and punitive damages. Whereas, the Declaratory Relief will allow the Plaintiffs to 16 reconnect their gas line and mitigate any further damages. 7 Therefore. Defendants Demurrer to Plaintiffs’ fifth cause of action for declaratory relief should be 18 19 denied andor Plaintiffs should be allowed leave to amend. 20 E. Defendants claim that Plaintiffs’ Seventh Cause of Action fails to state a cause of action for 21 Negligent misrepresentation and is uncertain because it only states a single, vague allegation that the 22 23 “Board” announced permission was no longer required to use a unit as a “food unit” is disingenuous 24 as the Defendants are only addressing paragraph 9. 2$ Plaintiffs have made additional factual allegations under the Seventh Cause of Action heading in the 26 FAC paragraph 53, which discusses Defendant Alvarado’s acts that bind the Board which is 27 28 consistent with the statement made in paragraph 9, that together provided no reasonable basis for 14 PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM THUY HO'S OPPOSITION TO DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC., JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT Plaintiffs to believe them to be false. Therefore, Defendants Demurrer to Plaintiffs* seventh cause of action for negligent misrepresentation should be denied and/or Plaintiffs should be allowed leave to amend. F. Defendants claim that Plaintiffs Fail to State a Cause of Action for Unlawful Business Practices because the Association or its individually named directors are a business entity at all for the purposes of Section 17200 should be denied. Defendant Joseph Nguyen, president of the Board. stated in his deposition dated September 26, 2017 10 (Ex. B to Plaimiffs’ RJN) that he was an employee of Vietnam Town Property, LLC. that owns the Wy unsold units in the Vietmam Town complex. The members of the Board are aware of and allowed 12 Defendant Nguyen to abuse his authority for his own and/or company’s benefit. 43 14 As such Defendants Demurrer to Plaintiffs Cause of Action for Unlawful business practices should be 15 denied and/or Plaintiffs should be allowed leave to amend. 16 IL. Defendants’ claim that the Complaint is not a verified pleading and contains an uncertain 17 purported verification. 18 19 Plaintiffs incorporate the same arguments made in Plaintiffs" opposition papers to Defendants" 20 attempt to strike Plaintiffs purported verification. 21 ¥. CONCLUSION 22 23 Defendants’ Demurrer should be denied and so that this case can move forward to resolution on its 24 merits. hy 0 25 ar 26 Dated: September 11. 2018 4, LLA ert T. Tang, Esq. 27 Attorney for P! tiffs T, ‘ NGUYEN, 28 NGHIA, UYEN. ai KIM THUY HO. 15 PLAINTIFFS TAN NGUYEN, NGHIA NGUYEN, AND KIM HO'S OPP; ITION TO DEFENDANTS VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIA, (ON, ENC., JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN'S DEMURRER TO INTIFFS' FIRST AMENDED COMPLAINT