Preview
170V318151
Santa Clara — Civil
A. Hwan
1 |] Nicholas A. Rogers, California Bar No. 248900 E-FILED
Aaron D. Zimmerman, California Bar No. 278624 2/23/2018 5:37 PM
2 || BERDING & WEIL LLP .
2175 N. California Blvd, Suite 500 Clerk of Court
3 |} Walnut Creek, California 94596 Superior Court of CA,
Telephone: 925/838-2090 County of Santa Clara
4 || Facsimile: 925/820-5592 170V318151
5 nrogers@berdingweil.com Reviewed By: A. Hwang
Attorneys for Defendants Envelope: 1251435
6 |} VIETNAM TOWN CONDOMINIUM OWNERS
ASSOCIATION, INC. and JOSEPH NGUYEN
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SANTA CLARA - UNLIMITED
10 No. 17CV318151
SAN FRANCISCO PIZZA, INC., TAN
11 |) NGUYEN, NGHIA NGUYEN and KIM MEMORANDUM OF POINTS AND
THUY HO, AUTHORITIES IN SUPPORT OF
12 MOTION TO STRIKE PORTIONS OF
b Plaintiffs, PLAINTIFFS’ COMPLAINT
vs. Hearing Date: May 29, 2018
14 Time: 9:00 a.m.
VIETNAM TOWN CONDOMINIUM Dept. 19
15 || OWNERS ASSOCIATION, INC.; MATRIX
ASSOCIATION MANAGEMENT; JOSEPH
Hon. Judge Peter H. Kirwan
16 || NGUYEN, an Individual; LAP T. TANG, an
Individual; MICHAEL JOHNSON, an
17 | Individual; DAVID ALVARADO, an
Individual; AQUATEK PLUMBING, INC. a Complaint Filed: October 25, 2017
18 }] California corporation; and DOES through Trial Date: None
50 inclusive,
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Defendants.
20 /
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22 Defendants VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC.
23 || (“Association”) and JOSEPH NGUYEN (“Nguyen”), (collectively defendants are referenced as
24 || “Defendants”) submit this Memorandum in support of their Motion to Strike portions of
25 |! Plaintiffs’ SAN FRANCISCO PIZZA, INC. (“SF Pizza”), TAN NGUYEN, NGHIA NGUYEN,
26 |! and KIM THUY HO’S (collectively “Plaintiffs”) verified complaint filed in the above entitled
27 || Court on or about October 25, 2017 (“Verified Complaint”).
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MEMORANDUM OF POINTS AND AUTHORITIES ISO OF MOTION TO STRIKE PORTIONS OF
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I. INTRODUCTION
This dispute arises from Plaintiffs’ failure to secure prior Association approval to change
their retail condominium unit into a restaurant and secure gas utility service to the unit as
required to operate a restaurant by relevant governmental agencies. Instead, Plaintiffs purchased
their unit, began altering the unit (without association approval), constructed a gas line on the
common area roof and then tapped into an as-built gas line designed to service a neighboring
unit; all without Association approval. In response, the neighboring unit owners filed suit against
Plaintiffs and the Association resulting in an enforceable settlement agreement that obligated the
Association to restore gas utility service to the as-built utility lines that provided gas service to
the neighbor’s restaurant unit.
Plaintiffs then filed the Verified Complaint that fails to assert a single sustainable cause of
action against Defendants. In doing so, Plaintiffs impermissibly plead contradictory facts and
allegations in an attempt to sustain their futile claims. Plaintiffs’ inability to assert a single viable
cause of action is further demonstrated by their failure to address, allege, describe, or incorporate
any relevant servitudes in the Association’s “Declaration of Establishing a plan for Commercial
Condominium Ownership dated November 15, 2010” (“CC&Rs”). The verified allegations are
also contradicted by Plaintiff Ho’s sworn admissions that conclusively establish neither the
Association nor management ever approved a request to convert the unit into a restaurant or
construct a common area gas line to service the unit for such purposes.
Finally, Plaintiffs provided no factual allegations to support their claimed compensatory
damage figures or why punitive damages are permissible in this case. This is particularly
significant in this dispute as the gravamen of the Verified Complaint arises from allegations that
certain acts and omissions prevented Plaintiff SF Pizza from operating as a restaurant resulting in
damages in excess of $5 million dollars; yet Plaintiff SF Pizza is not a member or owner of a unit
in the development, has no right to own property placed at issue by Plaintiffs’ first three causes of
action, and neither the Association nor Mr. Nguyen owes Plaintiff SF Pizza a common law or
contractual duty at issue in this case. In the event Plaintiff SF Pizza suffered damage, if any, its
claim would be against its landlord; i.e., Plaintiffs and not the Association or Mr. Nguyen. For all
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MEMORANDUM OF POINTS AND AUTHORITIES ISO OF MOTION TO STRIKE PORTIONS OF
PLAINTIFFS’ COMPLAINTof the reasons cited herein and in Defendants concurrently filed demurrer and supporting papers
2 |] thereto, the Association and Mr. Nguyen respectfully request the Court sustain Defendants’
3 | instant motion to strike.
4 Il. SUMMARY OF FACTUAL ALLEGATIONS
5 The Association is a commercial condominium association located in San Jose, California
6 |} (the “Development”) formed under California law pursuant to the “Declaration of Establishing a
7} plan for Commercial Condominium Ownership dated November 15, 2010” (“CC&Rs”).
8 |] (Verified Complaint, § 3.) Mr. Nguyen is a volunteer director and President of the Board of
9 |! Directors for the Association. (Verified Complaint, § 5.)
10 Plaintiffs T. Nguyen, N. Nguyen, and Ho are the legal owners of real property commonly
11 || known as Unit 9015 at 999 Story Road, San Jose, California (“Unit 9015”). (Verified Complaint,
12 || 1.) Plaintiff SF Pizza is Plaintiffs T. Nguyen, N. Nguyen, and Ho’s Unit 9015 tenant. (Verified
13 || Complaint, § 2.) Unit 9015 is located in the Vietnam Town Condominium Project. (Verified
14 || Complaint, { 12.)
15 Plaintiffs’ contend they purchased Unit 9015 for $610,000 in reliance on representations
16 |] made by Defendant Michael Johnson. (Verified Complaint, 4 13.) Plaintiffs also allege that in
17 || reliance on representations from Defendant David Alvarado, “Plaintiff San Francisco Pizza, Inc.
18 |] has spent in excess of $500,000.00 in making tenant improvements to construct a pizza restaurant
19 |) in Unit 9015.” (Verified Complaint, { 17.)
20 Plaintiffs then allege the Association delegated certain management and oversight
21 || responsibilities to Mr. Alvarado who approved Plaintiffs’ request to change Unit 9015 from retail
22 || to restaurant use; approved certain architectural changes to Unit 9015; approved construction of
23 || utility gas line over common area to service Unit 9015; granted Plaintiffs’ exclusive use of
24 |) common area for purposes of constructing the new gas line; and approved alteration and
25 |! connection of the new gas line into the existing as-built common area utility gas line servicing a
26 || neighboring unit. (Verified Complaint, {| 14, 17-20; 33-45; 52-55.)
27 Plaintiffs’ claim once the restaurant was constructed and ready to open, the Association
28 |! directed Defendant Aquatek to disconnect their gas line in order to settle a separate lawsuit with
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SisNcuanseny sues MEMORANDUM OF POINTS AND AUTHORITIES ISO OF MOTION TO STRIKE PORTIONS OF
‘Walnu recy Caitas 386 PLAINTIFFS’ COMPLAINTPlaintiffs’ neighboring unit owner thereby preventing Unit 9015 from operating as a restaurant
2 |] resulting in damages “caused by the disconnection of their gas line and the cessation of the
3 | business of San Francisco Pizza, Inc.” that are estimated to exceed “$5,050,000.00.” (Verified
4 |) Complaint, { 19-20; 42; see also §{] 22-23; 26; 31-32; 42; 45; 55.)
5 Til. LEGAL STANDARD
6 Motions to strike are used to reach defects in pleadings. (Code of Civ. Pro., § 435 (e)(2).)
7 || A motion to strike can be used to attack the entire pleading or any part thereof, even single words
8 |] or phrases. (Warren v. Atchison, Topeka, & Santa Fe Railway (1981) 19 Cal.App.3d 24.) A
9 || motion to strike may be used to cut out any “irrelevant, false, or improper” matters included in
10 || the complaint. (Code of Civ. Pro., § 436 (a).) Such matters include allegations that are not
11 || essential to the claim that are neither pertinent to nor supported by an otherwise valid claim, or
12 || that request relief is not supported by allegations in the complaint. (Code of Civ. Pro., § 431.10
13 }} (b).)
14 IV. FAILURE TO SUPPORT CLAIMS FOR PUNITIVE DAMAGES
15 Plaintiffs seek an award of punitive damages. In tort cases, punitive damages are only
16 |] available where a plaintiff shows by “clear and convincing” evidence that the defendant is guilty
17 || of “oppression, fraud or malice.” Civil Code § 3294(a). It is not sufficient to allege the defendant
18 |] acted with oppression, fraud, or malice in conclusory fashion. Rather, plaintiff must allege
19 || specific facts showing the defendant’s conduct was oppressive, fraudulent, or malicious. See
20 || (Smith v. Superior Court (Bucher) (1992) 10 Cal.App.4th 1033, 1041-1042 [punitive damage
21 |! claim requires specific factual allegations concerning an intent to cause injury, despicable
22 |! conduct, intentional misrepresentation, deceit, or concealment]; Anschutz Entertainment Group,
23 |i Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [conclusory allegations defendant’s conduct was
24 |! intentional, willful, malicious, and performed with ill will did not satisfy specific pleading
25 | requirement].)
26 Plaintiffs’ entire claim rests upon the contention that the Association and Mr. Nguyen
27 |! prevented operation of a restaurant at Unit 9015 by precluding use of a gas line resulting in over
28 |! $5,050,000 in damages arising from cessation of Plaintiff SF Pizza’s business. (Verified
4.
SisNcuanseny sues MEMORANDUM OF POINTS AND AUTHORITIES ISO OF MOTION TO STRIKE PORTIONS OF
‘Walnu recy Caitas 386 PLAINTIFFS’ COMPLAINTComplaint, § 42; see also J 22-23; 26; 31-32; 42; 45; 55.) However, the Verified Complaint
2 || contains no allegations of an intent to cause injury, despicable conduct, intentional
3 || misrepresentation, deceit, or concealment. And, the Association and Mr. Nguyen were
4 || completely justified in taking the actions complained of as reflected by provisions of the
5 |] judicially noticeable CC&Rs that Plaintiffs failed to attach, describe, or address in the Verified
6 |} Complaint.
7 Contrary to Plaintiffs’ unsupported conclusion of law, gas lines are defined as Utility
8 || Facilities in the CC&Rs and the Association has the exclusive right to maintain, repair, replace,
9 |] restore, operate, and manage all common area utility facilities. (Ex. A to Defendants’ Request for
10 || Judicial Notice filed in Support of Motion to Strike (“RJN”), at §§ 6.1; 5.1 (A)(1).) .) Plaintiffs
11 || were required to get prior approval to change use of a unit from retail to restaurant. (Ex. B to
12 || RIN, at § 7.2 (B); see also Exhibit D.) And, in the absence of Association approval, a member
13 || has no right to alter or construct Utility Facilities such as the gas lines. (Ex. B to RJN, at §§ 5.1
14 | (A)(1); 5.1 (A)(2)(a); 6.3.) Plaintiffs were also expressly precluded from interfering with existing
15 || utility gas lines servicing neighboring units when they performed their unauthorized alterations.
16 || (Ex. B to RJN, at § 7.11).! Plaintiff Ho admitted under oath that the Association never authorized
17 |] restaurant use or installation of a gas line to service the unit:
18 Q. Did you ever receive anything in writing with permission from the HOA?
19 A. I did not. Nothing was ever written.
20
Q. When you say “nothing was ever written,” do you mean there was no written
21 permission from David Alvarado?
22 A. There is permission from David Alvarado, but not from the board.” (Ex. B to
RJN, at 82:28-83:7.)
23
24 When pressed, Plaintiff Ho then admitted Mr. Alvarado did not approve her request to
25 change the unit from retail to restaurant use or construct a gas line, but instead agreed to
26
27 || ' Section 7.11 of the CC&Rs states in relevant part: “[A]n Owner shall not (in the course of
remodeling his Unit) damage or interfere with utility lines or facilities which serve other
28 || Condominiums.” (Ex. B to RJN, at § 7.11.)
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SisNcuanseny sues MEMORANDUM OF POINTS AND AUTHORITIES ISO OF MOTION TO STRIKE PORTIONS OF
‘Walnu recy Caitas 386 PLAINTIFFS’ COMPLAINT1 || “support” her request to the Board:
N
Q. I’m trying to just narrow down whether or not the e-mails say that I’m going
3 to—do they say something to the effect of I support you, or I recommend
approval or do they say you are approved?
: A. I support you.
6 Q. Okay. And—
7 A. To my understanding, I would take that in, you know, I have approval—I have
been approved.
® Q. Okay. So the e-mails and writings we’re discussing right now talk about
9 supporting you, but you interpreted that to mean approved?
10 A. Yes. (Ex. C to RIN at 86:19-87:2 see also at 83:3-7.)
i The judicially noticeable definition of “support” is to promote the interests or cause of
12 something; not to give formal or official sanction of something which is the definition of
13 “approved.” Defendants’ lawful restoration of the gas line to its previous condition, after
14 } laintifts? admittedly impermissible alteration, is not and was not oppressive, fraudulent or
15 | malicious. Quite simply, Plaintiffs did not assert any allegations in the entire Verified Complaint
16} that support a punitive damages claim. As such, Defendants respectfully request the Court strike
17 } Plaintiffs? claims for punitive damages from the Verified Complaint.
18 Vv. FAILURE TO SUPPORT CLAIMS FOR COMPENSATORY DAMAGES
19 Plaintiffs claim Plaintiff SF Pizza sustained economic damages in excess of
20 $5,050,000.00 due to improperly disconnecting the gas line. Plaintiffs provide no factual support
21 for, or indication as to how, they arrived at this figure. While claims for economic damages need
22 I not be pleaded with mathematical precision, they must be pled with particularity and with
23
certainty as to their occurrence and their extent. (Greenwich S.F., LLC v. Wong (2010) 190
24 | Cal.App.4th 739, 754.)
25 There are only two allegations in the entire Verified Complaint that describe damages: First,
26 |! plaintiffs’ contend they purchased Unit 9015 for $610,000 in reliance on representations by
27 I Defendant Johnson that the unit could be used as a restaurant, (Verified Complaint, J 13.) Mr.
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Johnson is not a volunteer director or an agent of the Association and as a result Defendants are
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SisNcuanseny sues MEMORANDUM OF POINTS AND AUTHORITIES ISO OF MOTION TO STRIKE PORTIONS OF
‘Walnu recy Caitas 386 PLAINTIFFS’ COMPLAINTnot alleged to be liable for such damage.
2 Second, Plaintiffs allege that in reliance on representations from Mr. Alvarado, Plaintiff
3 || SF Pizza spent in excess of $500,000.00 making tenant improvements to construct a pizza
4 |] restaurant. (Verified Complaint, § 17 [“In reliance upon the representations made by David
5 |] Alvarado, Plaintiff San Francisco Pizza, Inc. has spent in excess of $500,000 in making the
6 |] tenant improvements to construct a pizza restaurant in Unit 9015.”].) But, Plaintiff SF Pizza does
7 || not own a unit in the development and is, therefore, not a member of the Association. (Verified
8 || Complaint, § 2 [Plaintiff San Francisco Pizza, Inc. is the tenant of Plaintiffs Tan Nguyen, Nghia
9 || Nguyen and Kim Thuy Ho of Unit 9015, having entered into a lease agreement with said
10 || Plaintiffs on or about October 4, 2016.”]; see also Civil Code, § 6856 [commercial association
11 || and condo owner have reciprocal right to enforce equitable servitudes in enabling declaration];
12 || see also Ex. A to RJN, at §§ 1.32 [definition of member]; 1.38 [definition of owner]; 3.2 [only
13 || owners are members].)
14 As such, neither the Association, Mr. Nguyen, the Board of Directors, nor its property
15 || manager owed any duty in common law or contract placed at issue in this litigation to Plaintiff
16 |) SF Pizza. And, Plaintiffs failed to allege how Plaintiff SF Pizza, a business with no prior history
17 || that was located in a retail space not approved for use as a restaurant, would have generated
18 || $5,050,000.00 in profits.
19 Plaintiff SF Pizza, therefore, has no rights arising under the CC&Rs, has no possible
20 || claim to possess common area utility lines which is necessary to Plaintiffs’ intentional tort claims
21 || or is owed a common law or contractual duty by Defendants necessary to Plaintiffs’ remaining
22 |! claims. These damage claims are between Plaintiffs and Mr. Johnson or Plaintiff SF Pizza and its
23 | landlord; i.e., Plaintiffs T. Nguyen, N. Nguyen, and Ho. In light of the foregoing, Defendants
24 || respectfully request the Court also strike Plaintiffs’ claims for compensatory damages from the
25 |! Verified Complaint.
26 VI. LIST OF IMPROPER PORTIONS TO STRIKE
27 Defendants respectfully request the court strike the following portions of the Complaint as
28 |! inadmissible:
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SisNcuanseny sues MEMORANDUM OF POINTS AND AUTHORITIES ISO OF MOTION TO STRIKE PORTIONS OF
‘Walnu recy Caitas 386 PLAINTIFFS’ COMPLAINT1 1. On the Complaint, pages 7 and 8 of 17, § 22, line 19, starting with the word
2 “Defendants”, through § 23 in its entirety should be stricken.
3 2. On the Complaint, page 8 of 17, § 26, line 23, starting with the word “which” through
4 line 24 should be stricken.
5 3. On the Complaint, page 8 of 17, § 27, line 26, starting with the word “which” through
6 line 24 should be stricken.
7 4. On the Complaint, pages 9 and 10 of 17, §§ 31 and 32 should be stricken in their
8 entirety.
9 5. On the Complaint, page 12 of 17, 42, should be stricken in its entirety.
10 6. On the Complaint, page 14 of 17, 9 55, should be stricken in its entirety.
11 7. On the Complaint, page 15 of 17, in the Prayer, § 1 at lines 5 and 6 should be stricken
12 in its entirety.
13 VII. CONCLUSION
14 Defendants respectfully request an order granting their motion to strike all items
15 || mentioned above.
17 || Date: February 23, 2018 BERDING & WEIL LLP)
Attorneys for Defendants
Vietnam Town Condominium Owners
Association, Inc. and Joseph Nguyen
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MEMORANDUM OF POINTS AND AUTHORITIES ISO OF MOTION TO STRIKE PORTIONS OF
PLAINTIFFS’ COMPLAINT
Preview
170V318151 Santa Clara — Civil A. Hwan 1 |] Nicholas A. Rogers, California Bar No. 248900 E-FILED Aaron D. Zimmerman, California Bar No. 278624 2/23/2018 5:37 PM 2 || BERDING & WEIL LLP . 2175 N. California Blvd, Suite 500 Clerk of Court 3 |} Walnut Creek, California 94596 Superior Court of CA, Telephone: 925/838-2090 County of Santa Clara 4 || Facsimile: 925/820-5592 170V318151 5 nrogers@berdingweil.com Reviewed By: A. Hwang Attorneys for Defendants Envelope: 1251435 6 |} VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC. and JOSEPH NGUYEN 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SANTA CLARA - UNLIMITED 10 No. 17CV318151 SAN FRANCISCO PIZZA, INC., TAN 11 |) NGUYEN, NGHIA NGUYEN and KIM MEMORANDUM OF POINTS AND THUY HO, AUTHORITIES IN SUPPORT OF 12 MOTION TO STRIKE PORTIONS OF b Plaintiffs, PLAINTIFFS’ COMPLAINT vs. Hearing Date: May 29, 2018 14 Time: 9:00 a.m. VIETNAM TOWN CONDOMINIUM Dept. 19 15 || OWNERS ASSOCIATION, INC.; MATRIX ASSOCIATION MANAGEMENT; JOSEPH Hon. Judge Peter H. Kirwan 16 || NGUYEN, an Individual; LAP T. TANG, an Individual; MICHAEL JOHNSON, an 17 | Individual; DAVID ALVARADO, an Individual; AQUATEK PLUMBING, INC. a Complaint Filed: October 25, 2017 18 }] California corporation; and DOES through Trial Date: None 50 inclusive, 19 Defendants. 20 / 21 22 Defendants VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC. 23 || (“Association”) and JOSEPH NGUYEN (“Nguyen”), (collectively defendants are referenced as 24 || “Defendants”) submit this Memorandum in support of their Motion to Strike portions of 25 |! Plaintiffs’ SAN FRANCISCO PIZZA, INC. (“SF Pizza”), TAN NGUYEN, NGHIA NGUYEN, 26 |! and KIM THUY HO’S (collectively “Plaintiffs”) verified complaint filed in the above entitled 27 || Court on or about October 25, 2017 (“Verified Complaint”). 28 BERDING & WEIL LLP 29S Cao Bs Se 0 ‘Walnu recy Caitas 386 MEMORANDUM OF POINTS AND AUTHORITIES ISO OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ COMPLAINTBERDING & WEIL LLP 29S Cao Bs Se 0 ‘Walnu recy Caitas 386 Co em YN DW BF YW NY 10 WW 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION This dispute arises from Plaintiffs’ failure to secure prior Association approval to change their retail condominium unit into a restaurant and secure gas utility service to the unit as required to operate a restaurant by relevant governmental agencies. Instead, Plaintiffs purchased their unit, began altering the unit (without association approval), constructed a gas line on the common area roof and then tapped into an as-built gas line designed to service a neighboring unit; all without Association approval. In response, the neighboring unit owners filed suit against Plaintiffs and the Association resulting in an enforceable settlement agreement that obligated the Association to restore gas utility service to the as-built utility lines that provided gas service to the neighbor’s restaurant unit. Plaintiffs then filed the Verified Complaint that fails to assert a single sustainable cause of action against Defendants. In doing so, Plaintiffs impermissibly plead contradictory facts and allegations in an attempt to sustain their futile claims. Plaintiffs’ inability to assert a single viable cause of action is further demonstrated by their failure to address, allege, describe, or incorporate any relevant servitudes in the Association’s “Declaration of Establishing a plan for Commercial Condominium Ownership dated November 15, 2010” (“CC&Rs”). The verified allegations are also contradicted by Plaintiff Ho’s sworn admissions that conclusively establish neither the Association nor management ever approved a request to convert the unit into a restaurant or construct a common area gas line to service the unit for such purposes. Finally, Plaintiffs provided no factual allegations to support their claimed compensatory damage figures or why punitive damages are permissible in this case. This is particularly significant in this dispute as the gravamen of the Verified Complaint arises from allegations that certain acts and omissions prevented Plaintiff SF Pizza from operating as a restaurant resulting in damages in excess of $5 million dollars; yet Plaintiff SF Pizza is not a member or owner of a unit in the development, has no right to own property placed at issue by Plaintiffs’ first three causes of action, and neither the Association nor Mr. Nguyen owes Plaintiff SF Pizza a common law or contractual duty at issue in this case. In the event Plaintiff SF Pizza suffered damage, if any, its claim would be against its landlord; i.e., Plaintiffs and not the Association or Mr. Nguyen. For all -2- MEMORANDUM OF POINTS AND AUTHORITIES ISO OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ COMPLAINTof the reasons cited herein and in Defendants concurrently filed demurrer and supporting papers 2 |] thereto, the Association and Mr. Nguyen respectfully request the Court sustain Defendants’ 3 | instant motion to strike. 4 Il. SUMMARY OF FACTUAL ALLEGATIONS 5 The Association is a commercial condominium association located in San Jose, California 6 |} (the “Development”) formed under California law pursuant to the “Declaration of Establishing a 7} plan for Commercial Condominium Ownership dated November 15, 2010” (“CC&Rs”). 8 |] (Verified Complaint, § 3.) Mr. Nguyen is a volunteer director and President of the Board of 9 |! Directors for the Association. (Verified Complaint, § 5.) 10 Plaintiffs T. Nguyen, N. Nguyen, and Ho are the legal owners of real property commonly 11 || known as Unit 9015 at 999 Story Road, San Jose, California (“Unit 9015”). (Verified Complaint, 12 || 1.) Plaintiff SF Pizza is Plaintiffs T. Nguyen, N. Nguyen, and Ho’s Unit 9015 tenant. (Verified 13 || Complaint, § 2.) Unit 9015 is located in the Vietnam Town Condominium Project. (Verified 14 || Complaint, { 12.) 15 Plaintiffs’ contend they purchased Unit 9015 for $610,000 in reliance on representations 16 |] made by Defendant Michael Johnson. (Verified Complaint, 4 13.) Plaintiffs also allege that in 17 || reliance on representations from Defendant David Alvarado, “Plaintiff San Francisco Pizza, Inc. 18 |] has spent in excess of $500,000.00 in making tenant improvements to construct a pizza restaurant 19 |) in Unit 9015.” (Verified Complaint, { 17.) 20 Plaintiffs then allege the Association delegated certain management and oversight 21 || responsibilities to Mr. Alvarado who approved Plaintiffs’ request to change Unit 9015 from retail 22 || to restaurant use; approved certain architectural changes to Unit 9015; approved construction of 23 || utility gas line over common area to service Unit 9015; granted Plaintiffs’ exclusive use of 24 |) common area for purposes of constructing the new gas line; and approved alteration and 25 |! connection of the new gas line into the existing as-built common area utility gas line servicing a 26 || neighboring unit. (Verified Complaint, {| 14, 17-20; 33-45; 52-55.) 27 Plaintiffs’ claim once the restaurant was constructed and ready to open, the Association 28 |! directed Defendant Aquatek to disconnect their gas line in order to settle a separate lawsuit with 3- SisNcuanseny sues MEMORANDUM OF POINTS AND AUTHORITIES ISO OF MOTION TO STRIKE PORTIONS OF ‘Walnu recy Caitas 386 PLAINTIFFS’ COMPLAINTPlaintiffs’ neighboring unit owner thereby preventing Unit 9015 from operating as a restaurant 2 |] resulting in damages “caused by the disconnection of their gas line and the cessation of the 3 | business of San Francisco Pizza, Inc.” that are estimated to exceed “$5,050,000.00.” (Verified 4 |) Complaint, { 19-20; 42; see also §{] 22-23; 26; 31-32; 42; 45; 55.) 5 Til. LEGAL STANDARD 6 Motions to strike are used to reach defects in pleadings. (Code of Civ. Pro., § 435 (e)(2).) 7 || A motion to strike can be used to attack the entire pleading or any part thereof, even single words 8 |] or phrases. (Warren v. Atchison, Topeka, & Santa Fe Railway (1981) 19 Cal.App.3d 24.) A 9 || motion to strike may be used to cut out any “irrelevant, false, or improper” matters included in 10 || the complaint. (Code of Civ. Pro., § 436 (a).) Such matters include allegations that are not 11 || essential to the claim that are neither pertinent to nor supported by an otherwise valid claim, or 12 || that request relief is not supported by allegations in the complaint. (Code of Civ. Pro., § 431.10 13 }} (b).) 14 IV. FAILURE TO SUPPORT CLAIMS FOR PUNITIVE DAMAGES 15 Plaintiffs seek an award of punitive damages. In tort cases, punitive damages are only 16 |] available where a plaintiff shows by “clear and convincing” evidence that the defendant is guilty 17 || of “oppression, fraud or malice.” Civil Code § 3294(a). It is not sufficient to allege the defendant 18 |] acted with oppression, fraud, or malice in conclusory fashion. Rather, plaintiff must allege 19 || specific facts showing the defendant’s conduct was oppressive, fraudulent, or malicious. See 20 || (Smith v. Superior Court (Bucher) (1992) 10 Cal.App.4th 1033, 1041-1042 [punitive damage 21 |! claim requires specific factual allegations concerning an intent to cause injury, despicable 22 |! conduct, intentional misrepresentation, deceit, or concealment]; Anschutz Entertainment Group, 23 |i Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [conclusory allegations defendant’s conduct was 24 |! intentional, willful, malicious, and performed with ill will did not satisfy specific pleading 25 | requirement].) 26 Plaintiffs’ entire claim rests upon the contention that the Association and Mr. Nguyen 27 |! prevented operation of a restaurant at Unit 9015 by precluding use of a gas line resulting in over 28 |! $5,050,000 in damages arising from cessation of Plaintiff SF Pizza’s business. (Verified 4. SisNcuanseny sues MEMORANDUM OF POINTS AND AUTHORITIES ISO OF MOTION TO STRIKE PORTIONS OF ‘Walnu recy Caitas 386 PLAINTIFFS’ COMPLAINTComplaint, § 42; see also J 22-23; 26; 31-32; 42; 45; 55.) However, the Verified Complaint 2 || contains no allegations of an intent to cause injury, despicable conduct, intentional 3 || misrepresentation, deceit, or concealment. And, the Association and Mr. Nguyen were 4 || completely justified in taking the actions complained of as reflected by provisions of the 5 |] judicially noticeable CC&Rs that Plaintiffs failed to attach, describe, or address in the Verified 6 |} Complaint. 7 Contrary to Plaintiffs’ unsupported conclusion of law, gas lines are defined as Utility 8 || Facilities in the CC&Rs and the Association has the exclusive right to maintain, repair, replace, 9 |] restore, operate, and manage all common area utility facilities. (Ex. A to Defendants’ Request for 10 || Judicial Notice filed in Support of Motion to Strike (“RJN”), at §§ 6.1; 5.1 (A)(1).) .) Plaintiffs 11 || were required to get prior approval to change use of a unit from retail to restaurant. (Ex. B to 12 || RIN, at § 7.2 (B); see also Exhibit D.) And, in the absence of Association approval, a member 13 || has no right to alter or construct Utility Facilities such as the gas lines. (Ex. B to RJN, at §§ 5.1 14 | (A)(1); 5.1 (A)(2)(a); 6.3.) Plaintiffs were also expressly precluded from interfering with existing 15 || utility gas lines servicing neighboring units when they performed their unauthorized alterations. 16 || (Ex. B to RJN, at § 7.11).! Plaintiff Ho admitted under oath that the Association never authorized 17 |] restaurant use or installation of a gas line to service the unit: 18 Q. Did you ever receive anything in writing with permission from the HOA? 19 A. I did not. Nothing was ever written. 20 Q. When you say “nothing was ever written,” do you mean there was no written 21 permission from David Alvarado? 22 A. There is permission from David Alvarado, but not from the board.” (Ex. B to RJN, at 82:28-83:7.) 23 24 When pressed, Plaintiff Ho then admitted Mr. Alvarado did not approve her request to 25 change the unit from retail to restaurant use or construct a gas line, but instead agreed to 26 27 || ' Section 7.11 of the CC&Rs states in relevant part: “[A]n Owner shall not (in the course of remodeling his Unit) damage or interfere with utility lines or facilities which serve other 28 || Condominiums.” (Ex. B to RJN, at § 7.11.) -5- SisNcuanseny sues MEMORANDUM OF POINTS AND AUTHORITIES ISO OF MOTION TO STRIKE PORTIONS OF ‘Walnu recy Caitas 386 PLAINTIFFS’ COMPLAINT1 || “support” her request to the Board: N Q. I’m trying to just narrow down whether or not the e-mails say that I’m going 3 to—do they say something to the effect of I support you, or I recommend approval or do they say you are approved? : A. I support you. 6 Q. Okay. And— 7 A. To my understanding, I would take that in, you know, I have approval—I have been approved. ® Q. Okay. So the e-mails and writings we’re discussing right now talk about 9 supporting you, but you interpreted that to mean approved? 10 A. Yes. (Ex. C to RIN at 86:19-87:2 see also at 83:3-7.) i The judicially noticeable definition of “support” is to promote the interests or cause of 12 something; not to give formal or official sanction of something which is the definition of 13 “approved.” Defendants’ lawful restoration of the gas line to its previous condition, after 14 } laintifts? admittedly impermissible alteration, is not and was not oppressive, fraudulent or 15 | malicious. Quite simply, Plaintiffs did not assert any allegations in the entire Verified Complaint 16} that support a punitive damages claim. As such, Defendants respectfully request the Court strike 17 } Plaintiffs? claims for punitive damages from the Verified Complaint. 18 Vv. FAILURE TO SUPPORT CLAIMS FOR COMPENSATORY DAMAGES 19 Plaintiffs claim Plaintiff SF Pizza sustained economic damages in excess of 20 $5,050,000.00 due to improperly disconnecting the gas line. Plaintiffs provide no factual support 21 for, or indication as to how, they arrived at this figure. While claims for economic damages need 22 I not be pleaded with mathematical precision, they must be pled with particularity and with 23 certainty as to their occurrence and their extent. (Greenwich S.F., LLC v. Wong (2010) 190 24 | Cal.App.4th 739, 754.) 25 There are only two allegations in the entire Verified Complaint that describe damages: First, 26 |! plaintiffs’ contend they purchased Unit 9015 for $610,000 in reliance on representations by 27 I Defendant Johnson that the unit could be used as a restaurant, (Verified Complaint, J 13.) Mr. 28 Johnson is not a volunteer director or an agent of the Association and as a result Defendants are -6- SisNcuanseny sues MEMORANDUM OF POINTS AND AUTHORITIES ISO OF MOTION TO STRIKE PORTIONS OF ‘Walnu recy Caitas 386 PLAINTIFFS’ COMPLAINTnot alleged to be liable for such damage. 2 Second, Plaintiffs allege that in reliance on representations from Mr. Alvarado, Plaintiff 3 || SF Pizza spent in excess of $500,000.00 making tenant improvements to construct a pizza 4 |] restaurant. (Verified Complaint, § 17 [“In reliance upon the representations made by David 5 |] Alvarado, Plaintiff San Francisco Pizza, Inc. has spent in excess of $500,000 in making the 6 |] tenant improvements to construct a pizza restaurant in Unit 9015.”].) But, Plaintiff SF Pizza does 7 || not own a unit in the development and is, therefore, not a member of the Association. (Verified 8 || Complaint, § 2 [Plaintiff San Francisco Pizza, Inc. is the tenant of Plaintiffs Tan Nguyen, Nghia 9 || Nguyen and Kim Thuy Ho of Unit 9015, having entered into a lease agreement with said 10 || Plaintiffs on or about October 4, 2016.”]; see also Civil Code, § 6856 [commercial association 11 || and condo owner have reciprocal right to enforce equitable servitudes in enabling declaration]; 12 || see also Ex. A to RJN, at §§ 1.32 [definition of member]; 1.38 [definition of owner]; 3.2 [only 13 || owners are members].) 14 As such, neither the Association, Mr. Nguyen, the Board of Directors, nor its property 15 || manager owed any duty in common law or contract placed at issue in this litigation to Plaintiff 16 |) SF Pizza. And, Plaintiffs failed to allege how Plaintiff SF Pizza, a business with no prior history 17 || that was located in a retail space not approved for use as a restaurant, would have generated 18 || $5,050,000.00 in profits. 19 Plaintiff SF Pizza, therefore, has no rights arising under the CC&Rs, has no possible 20 || claim to possess common area utility lines which is necessary to Plaintiffs’ intentional tort claims 21 || or is owed a common law or contractual duty by Defendants necessary to Plaintiffs’ remaining 22 |! claims. These damage claims are between Plaintiffs and Mr. Johnson or Plaintiff SF Pizza and its 23 | landlord; i.e., Plaintiffs T. Nguyen, N. Nguyen, and Ho. In light of the foregoing, Defendants 24 || respectfully request the Court also strike Plaintiffs’ claims for compensatory damages from the 25 |! Verified Complaint. 26 VI. LIST OF IMPROPER PORTIONS TO STRIKE 27 Defendants respectfully request the court strike the following portions of the Complaint as 28 |! inadmissible: -7- SisNcuanseny sues MEMORANDUM OF POINTS AND AUTHORITIES ISO OF MOTION TO STRIKE PORTIONS OF ‘Walnu recy Caitas 386 PLAINTIFFS’ COMPLAINT1 1. On the Complaint, pages 7 and 8 of 17, § 22, line 19, starting with the word 2 “Defendants”, through § 23 in its entirety should be stricken. 3 2. On the Complaint, page 8 of 17, § 26, line 23, starting with the word “which” through 4 line 24 should be stricken. 5 3. On the Complaint, page 8 of 17, § 27, line 26, starting with the word “which” through 6 line 24 should be stricken. 7 4. On the Complaint, pages 9 and 10 of 17, §§ 31 and 32 should be stricken in their 8 entirety. 9 5. On the Complaint, page 12 of 17, 42, should be stricken in its entirety. 10 6. On the Complaint, page 14 of 17, 9 55, should be stricken in its entirety. 11 7. On the Complaint, page 15 of 17, in the Prayer, § 1 at lines 5 and 6 should be stricken 12 in its entirety. 13 VII. CONCLUSION 14 Defendants respectfully request an order granting their motion to strike all items 15 || mentioned above. 17 || Date: February 23, 2018 BERDING & WEIL LLP) Attorneys for Defendants Vietnam Town Condominium Owners Association, Inc. and Joseph Nguyen -8- MEMORANDUM OF POINTS AND AUTHORITIES ISO OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ COMPLAINT