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Nicholas A. Rogers, California Bar No. 248900
Aaron A. Hayes, California Bar No. 236122
BERDING & WEIL LLP
2175 N. California Blvd, Suite 500
Walnut Creek, California 94596
Telephone: 925/838-2090
Facsimile: 925/820-5592
nrogers@berdingweil.com
ahayes@berdingweil.com
Attorneys for Defendants
VIETNAM TOWN CONDOMINIUM OWNERS.
ASSOCIATION, JOSEPH NGUYEN, KHANH CAO HUU
and JOANY YUIN
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF SANTA CLARA — UNLIMITED
11
12 SAN FRANCISCO PIZZA, INC., TAN No. 17CV318151
NGUYEN, NGHIA NGUYEN and KIM
13 THUY HO, NOTICE OF MOTION AND MOTION
BY VIETNAM TOWN CONDOMINIUM
14 Plaintiffs, OWNERS ASSOCIATION, JOSEPH
NGUYEN, KHANH CAO HUU, AND
15 VS. JOANY YUIN TO STRIKE PORTIONS
OF THE FIRST AMENDED
16 VIETNAM TOWN CONDOMINIUM COMPLAINT
OWNERS ASSOCIATION, INC.; MATRIX
17 ASSOCIATION MANAGEMENT; JOSEPH
NGUYEN, an Individual; KHANH CAO Hearing Date: September 25, 2018
18 HUU, an Individual; JOANY YUIN, an Time: 9:00 a.m.
Individual; NGOC BUL, an Individual; LAP Dept. 19
19 T. TANG, an Individual; MICHAEL
JOHNSON, an Individual; DAVID Hon. Peter H. Kirwan
20 ALVARADO, an Individual; and DOES 1
through 50 inclusive,
21 Action Filed: October 25, 2017
Trial Date: None
22 Defendants.
23
24 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
25 PLEASE TAKE NOTICE THAT on September 25, 2018, at 9:00 a.m., or as soon
26 thereafter as the matter may be heard, in Department 19 of this Court, located at 161 North First
27 Street, San Jose, California 95113, Defendants VIETNAM TOWN CONDOMINIUM OWNERS
28 ASSOCIATION, INC. (“Association”) JOSEPH NGUYEN, KHANH CAO HUU, and JOANY
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NOTICE OF MOTION AND MOTION BY VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION,
JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN TO STRIKE PORTIONS OF THE FIRST
AMENDED COMPLAINT
YUIN (collectively “Defendants”) will and hereby do move, pursuant to Code of Civil Procedure
section 435, et seq., to strike portions of the First Amended Complaint, filed on or about May 15,
2018 (“Amended Complaint”) by Plaintiffs SAN FRANCISCO PIZZA, INC. (“San Francisco
Pizza”), TAN NGUYEN, NGHIA NGUYEN, and KIM THUY HO (“Owners”) (collectively San
Francisco Pizza and Owners are referred to as “Plaintiffs”), on the basis that the Amended
Complaint: (1) seeks impermissible remedies pursuant to Plaintiffs’ ninth cause of action alleging
a violation of Business and Professions Code section 17200, et seq.; (2) contains defective
allegations seeking awards of punitive damages against Defendants; and (3) contains a defective
purported “verification” that fails to comply with the requirements of Code of Civil Procedure
10 section 446 for the Amended Complaint to constitute a verified pleading.
11 Specifically, Defendants seek to strike as follows:
12 1 On the Amended Complaint, page 7, § 22, line 19, starting with the word
13 “Defendants”, through the word “meter” on line 21 should be stricken.
14 On the Amended Complaint, page 7, 4] 23, the entirety of {23 appearing on page 7
15 should be stricken.
16 On the Amended Complaint, page 8, {| 23, the words “compensatory damages
17 awarded” on line 1 and the words “punitive damages” on line 2 should be stricken.
18 On the Amended Complaint, page 8, 27, line 26, starting with the word “and”
19 through the end of § 27 should be stricken.
20 On the Amended Complaint, pages 9 and 10, 4 31, line 26, starting with the word
21 “Defendants” through the end of § 31 should be stricken.
22 On the Amended Complaint, page 10, {] 32, line 4 starting with the word “and”
23 through the end of § 32 should be stricken.
24 On the Amended Complaint, page 17, 72, should be stricken in its entirety.
25 On the Amended Complaint, page 17, {| 73, the words “compensation,” “penalties,”
26 and “punitive damages” should be stricken.
27 9. On the Amended Complaint, page 17, in the Prayer, § 3 should be stricken in its
28 entirety.
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NOTICE OF MOTION AND MOTION BY VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION,
BERDING& WEIL LL P JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN TO STRIKE PORTIONS OF THE FIRST
Wat S36
AMENDED COMPLAINT
10. On the Amended Complaint, page 19, the “Verification” at lines 2 through 14 should
be stricken in its entirety.
This motion is made pursuant to Code of Civil Procedure § 436 (a) and (b), on the
grounds that: (1) the Amended Complaint’s ninth cause of action for unlawful business practices
seeks impermissible remedies beyond the scope of those permitted under Business and
Professions Code section 17200, et seq., (2) the punitive damages and relief that were alleged and
requested in Plaintiffs’ Amended Complaint cannot remain because Plaintiffs have failed to plead
sufficient facts that Defendants engaged in malicious, oppressive or fraudulent conduct, and (3)
the Amended Complaint contains an improper purported “Verification” and is not a properly
10 verified pleading.
11 This motion is based on this notice, the accompanying memorandum of points and
12 authorities, the complete file and records in this action, Defendants’ concurrently filed Request
13 for Judicial Notice, any and all declarations and exhibits submitted in support of the motion, and
14 any other evidence and argument which the Court may consider at the hearing of this matter.
1S
16 Date: July (7, 2018 BERDI & WEIL LEP
17
By:
18 Nicholas A. Rogers
Aaron A. Hayes
19 Attorneys for Defendants VIETNAM TOWN
CONDOMINIUM OWNERS ASSOCIATION,
20 JOSEPH NGUYEN, KHANH CAO, HUU, and
JOANY YUIN
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NOTICE OF MOTION AND MOTION BY VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION,
w iIL 0LLP
Wale ow rs 94596
Cato
JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN TO STRIKE PORTIONS OF THE FIRST
AMENDED COMPLAINT
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Nicholas A. Rogers, California Bar No. 248900 Aaron A. Hayes, California Bar No. 236122 BERDING & WEIL LLP 2175 N. California Blvd, Suite 500 Walnut Creek, California 94596 Telephone: 925/838-2090 Facsimile: 925/820-5592 nrogers@berdingweil.com ahayes@berdingweil.com Attorneys for Defendants VIETNAM TOWN CONDOMINIUM OWNERS. ASSOCIATION, JOSEPH NGUYEN, KHANH CAO HUU and JOANY YUIN SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF SANTA CLARA — UNLIMITED 11 12 SAN FRANCISCO PIZZA, INC., TAN No. 17CV318151 NGUYEN, NGHIA NGUYEN and KIM 13 THUY HO, NOTICE OF MOTION AND MOTION BY VIETNAM TOWN CONDOMINIUM 14 Plaintiffs, OWNERS ASSOCIATION, JOSEPH NGUYEN, KHANH CAO HUU, AND 15 VS. JOANY YUIN TO STRIKE PORTIONS OF THE FIRST AMENDED 16 VIETNAM TOWN CONDOMINIUM COMPLAINT OWNERS ASSOCIATION, INC.; MATRIX 17 ASSOCIATION MANAGEMENT; JOSEPH NGUYEN, an Individual; KHANH CAO Hearing Date: September 25, 2018 18 HUU, an Individual; JOANY YUIN, an Time: 9:00 a.m. Individual; NGOC BUL, an Individual; LAP Dept. 19 19 T. TANG, an Individual; MICHAEL JOHNSON, an Individual; DAVID Hon. Peter H. Kirwan 20 ALVARADO, an Individual; and DOES 1 through 50 inclusive, 21 Action Filed: October 25, 2017 Trial Date: None 22 Defendants. 23 24 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: 25 PLEASE TAKE NOTICE THAT on September 25, 2018, at 9:00 a.m., or as soon 26 thereafter as the matter may be heard, in Department 19 of this Court, located at 161 North First 27 Street, San Jose, California 95113, Defendants VIETNAM TOWN CONDOMINIUM OWNERS 28 ASSOCIATION, INC. (“Association”) JOSEPH NGUYEN, KHANH CAO HUU, and JOANY -l- NOTICE OF MOTION AND MOTION BY VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT YUIN (collectively “Defendants”) will and hereby do move, pursuant to Code of Civil Procedure section 435, et seq., to strike portions of the First Amended Complaint, filed on or about May 15, 2018 (“Amended Complaint”) by Plaintiffs SAN FRANCISCO PIZZA, INC. (“San Francisco Pizza”), TAN NGUYEN, NGHIA NGUYEN, and KIM THUY HO (“Owners”) (collectively San Francisco Pizza and Owners are referred to as “Plaintiffs”), on the basis that the Amended Complaint: (1) seeks impermissible remedies pursuant to Plaintiffs’ ninth cause of action alleging a violation of Business and Professions Code section 17200, et seq.; (2) contains defective allegations seeking awards of punitive damages against Defendants; and (3) contains a defective purported “verification” that fails to comply with the requirements of Code of Civil Procedure 10 section 446 for the Amended Complaint to constitute a verified pleading. 11 Specifically, Defendants seek to strike as follows: 12 1 On the Amended Complaint, page 7, § 22, line 19, starting with the word 13 “Defendants”, through the word “meter” on line 21 should be stricken. 14 On the Amended Complaint, page 7, 4] 23, the entirety of {23 appearing on page 7 15 should be stricken. 16 On the Amended Complaint, page 8, {| 23, the words “compensatory damages 17 awarded” on line 1 and the words “punitive damages” on line 2 should be stricken. 18 On the Amended Complaint, page 8, 27, line 26, starting with the word “and” 19 through the end of § 27 should be stricken. 20 On the Amended Complaint, pages 9 and 10, 4 31, line 26, starting with the word 21 “Defendants” through the end of § 31 should be stricken. 22 On the Amended Complaint, page 10, {] 32, line 4 starting with the word “and” 23 through the end of § 32 should be stricken. 24 On the Amended Complaint, page 17, 72, should be stricken in its entirety. 25 On the Amended Complaint, page 17, {| 73, the words “compensation,” “penalties,” 26 and “punitive damages” should be stricken. 27 9. On the Amended Complaint, page 17, in the Prayer, § 3 should be stricken in its 28 entirety. -2- NOTICE OF MOTION AND MOTION BY VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, BERDING& WEIL LL P JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN TO STRIKE PORTIONS OF THE FIRST Wat S36 AMENDED COMPLAINT 10. On the Amended Complaint, page 19, the “Verification” at lines 2 through 14 should be stricken in its entirety. This motion is made pursuant to Code of Civil Procedure § 436 (a) and (b), on the grounds that: (1) the Amended Complaint’s ninth cause of action for unlawful business practices seeks impermissible remedies beyond the scope of those permitted under Business and Professions Code section 17200, et seq., (2) the punitive damages and relief that were alleged and requested in Plaintiffs’ Amended Complaint cannot remain because Plaintiffs have failed to plead sufficient facts that Defendants engaged in malicious, oppressive or fraudulent conduct, and (3) the Amended Complaint contains an improper purported “Verification” and is not a properly 10 verified pleading. 11 This motion is based on this notice, the accompanying memorandum of points and 12 authorities, the complete file and records in this action, Defendants’ concurrently filed Request 13 for Judicial Notice, any and all declarations and exhibits submitted in support of the motion, and 14 any other evidence and argument which the Court may consider at the hearing of this matter. 1S 16 Date: July (7, 2018 BERDI & WEIL LEP 17 By: 18 Nicholas A. Rogers Aaron A. Hayes 19 Attorneys for Defendants VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, 20 JOSEPH NGUYEN, KHANH CAO, HUU, and JOANY YUIN 21 22 23 24 X:\wdocs\8472\92\PLD\20 180716\00889964. DOCX 25 26 27 28 -3- NOTICE OF MOTION AND MOTION BY VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, w iIL 0LLP Wale ow rs 94596 Cato JOSEPH NGUYEN, KHANH CAO HUU, AND JOANY YUIN TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT