Preview
170V318151
Santa Clara — Civil
A. Hwan
Nicholas A. Rogers, California Bar No. 248900 E-FILED
Aaron D. Zimmerman, California Bar No. 278624
BERDING & WEIL LLP 2/23/2018 5:37 PM
2175 N. California Blvd, Suite 500 Clerk of Court
Walnut Creek, California 94596 Superior Court of CA,
Telephone: 925/838-2090 County of Santa Clara
Facsimile: 925/820-5592 170V318151
nrogers@berdingweil.com Reviewed By: A. Hwang
Envelope: 1251435
Attorneys for Defendants
VIETNAM TOWN CONDOMINIUM OWNERS
ASSOCIATION, INC. and JOSEPH NGUYEN
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA - UNLIMITED
10
SAN FRANCISCO PIZZA, INC., TAN No. 17CV318151
11 NGUYEN, NGHIA NGUYEN and KIM
THUY HO,
12 REQUEST FOR JUDICIAL NOTICE IN
Plaintiffs, SUPPORT OF DEMURRER TO
13 PLAINTIFFS’ COMPLAINT
vs.
14 Hearing Date: May 29, 2018
VIETNAM TOWN CONDOMINIUM Time: 9:00 a.m.
15 OWNERS ASSOCIATION, INC.; MATRIX Dept. 19
ASSOCIATION MANAGEMENT; JOSEPH
16 NGUYEN, an Individual; LAP T. TANG, an Hon. Judge Peter H. Kirwan
Individual; MICHAEL JOHNSON, an
17 Individual, DAVID ALVARADO, an
Individual; AQUATEK PLUMBING, INC. a
18 California corporation; and DOES Ithrough
50 inclusive, Action Filed: October 25, 2017
19 Trial Date: None
Defendants.
20 /
21 Defendants VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC.
22 (“Association”) and JOSEPH NGUYEN (collectively demurring defendants are referenced as
23 “Defendants”) request the Court, in considering Defendants’ Demurrer to Plaintiffs SAN
24 FRANCISCO PIZZA, INC. (“SF Pizza’), TAN NGUYEN, NGHIA NGUYEN, and KIM THUY
25 HO’S (collectively “Plaintiffs”) verified complaint filed on or about October 25, 2017 in the
26 above entitled Court (“Verified Complaint”) take judicial notice of the following: (1) an Order
27 from the Court dated November 8, 2017 (“Order”); (2) a certified copy of the Association’s
28
BERDING & WEIL LLP
29S -1-
‘Walnu Cao Bs Se 386
recy Caitas 0
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT
recorded declaration; (3) relevant portions of a reporter’s transcript of proceedings before the
Court on November 7, 2017 that have party admissions; and (4) the true significance of English
words “support” and “approve.”
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 retail unit, began altering the unit into restaurant (without Association approval),
constructed a gas line on the common area roof and then tapped into an as-built gas line designed
10 to service a neighboring restaurant unit; all without Association approval. In response, the
11 neighboring unit owners filed suit against Plaintiffs and the Association resulting in an
12 enforceable settlement agreement that obligated the Association to restore gas utility service to
13 the as-built utility lines that provided gas service to the neighbor’s restaurant unit.
14 Plaintiffs then filed the Verified Complaint that fails to assert a single sustainable cause of
15 action against Defendants. In doing so, Plaintiffs impermissibly plead contradictory and
16 antagonistic facts in an attempt to sustain their futile claims. For instance, Plaintiffs contend the
17 Association provided express permission to install their gas line to support certain intentional
18 torts, but then allege the Association abdicated all responsibility with respect to reviewing their
19 application for purposes of their breach of contract claim.
20 Plaintiffs’ inability to assert a single viable cause of action is further demonstrated by
21 their failure to address, allege, describe, or incorporate any relevant servitude in the Association’s
22 “Declaration of Establishing a plan for Commercial Condominium Ownership dated November
23 15, 2010” (“CC&Rs”). Relevant provisions of the CC&Rs completely contradict Plaintiffs’
24 verified allegations and defeat their claims. The verified allegations are also contradicted by
25 Plaintiff Ho’s sworn admissions provided to the Court during an evidentiary hearing before Judge
26 Aaron Persky regarding Plaintiffs request for a preliminary injunction that was denied in an
27 Order dated November 8, 2017. Plaintiff Ho conclusively admitted neither the Association nor
28 management ever approved a request to convert the unit into a restaurant or construct a common
BERDING & WEIL LLP
29S -2-
‘Walnu Cao Bs Se 0386
recy Caitas
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT
area gas line to service the unit for such purposes.
Il. DEFENDANTS RESPECTFULLY REQUEST THE COURT TAKE JUDICIAL
NOTICE OF THE COURT’S ORDER DATED NOVEMBER 8, 2017, THE
ASSOCIATION’S CC&RS, RELEVANT PARTY ADMISSIONS, AND THE
MEANING OF CERTAIN ENGLISH WORDS
A court is required to take judicial notice of matters specified in Evidence Code section
451 and may take judicial notice of matters set forth in Evidence Code section 452. However, the
court is required to take judicial notice of matters set forth in Evidence Code section 452 if a
party requests judicial notice be taken, gives each adverse party notice of the request, and
furnishes the court with sufficient information to enable it to take judicial notice of the matter.
10 (Evid. Code, § 453.) This request is made pursuant to Evidence Code sections 451, 452 (c), 452
11 (d), 452 (g), 452 (h), and 453 on the following grounds:
12 A. The Court May Take Judicial Notice of the Order as a Record of the Court
13 Under Evidence Code section 452 (d), a court can take judicial notice of the existence of
14 each document in a court file. (see e.g., Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564; Hart
15 y. Darwish (2017) 12 Cal.App.Sth 218, 224 [appellate court affirmed trial court ruling taking
16 judicial notice of minute orders and transcripts from underlying unlawful detainer action].) A
17 court may also take judicial notice of the truth of facts asserted in court orders. (see e.g., In re
18 Tanya F. (1980) 111 Cal.App.3d 436, 440.) Here, the Court held a hearing on Plaintiffs’ request
19 for preliminary injunction on November 7, 2017 and denied the request via an Order dated
20 November 8, 2017. The Order reflects the following finding:
21 The Court also concludes that a preliminary injunction will not preserve the status
quo pending trial. Accordingly, Plaintiff's motion for a preliminary injunction is
22 DENIED.
23 Prior to the filing of the Verified Complaint, the status quo did not include operation of
24 Unit 9015 as a restaurant or service of a gas line to the unit. Accordingly, Defendants respectfully
25 request the Court take judicial notice over the existence of the Order and following contents
26 therein:
27
. Order Denying Plaintiff's Request for Preliminary Injunction, filed in the matter
28 entitled San Francisco Pizza, Inc., et al. v. Vietnam Town Condominium Owners
BERDING & WEIL LLP
29S 3-
‘Walnu Cao Bs Se 386
recy Caitas 0
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT
Association, Inc., Case No.: 17-CV-318151, on November 8, 2017. A true and correct
copy of the Order is attached hereto as Exhibit A.
B. The Court May Take Judicial Notice of Recorded Land-Use Instruments
Evidence Code section 452 (h) provides the Court may take judicial notice of “[f]acts and
propositions that are not reasonably subject to dispute and are capable of immediate and accurate
determination by resort to sources of reasonably indisputable accuracy.” (See e.g. Stormedia, Inc.
vy, Superior Court (1990) 20 Cal.4th 448, 457 n.9.) And, Evidence Code section 452 (g) permits
courts to take judicial notice of facts and propositions that are of such common knowledge within
the territorial jurisdiction of the court that they cannot reasonably be the subject matter of dispute.
Courts have consistently taken judicial notice of recorded instruments under Section 452 (h) and
10 Section 452 (g) of the Evidence Code in similar circumstances. (see Satchmed Plaza Owners
11 Association v. UWMC Hospital Corporation (2008) 167 Cal.App.4th 1034, 1040-1041 [granting
12 request for judicial notice of recorded instruments]; McElroy v. Chase Manhattan Mortgage
13 Corporation (2005) 134 Cal.App.4th 388, 394 [granting request for judicial notice of instruments
14 recorded in county official records]; see also Evans v. California Trailer Court, Inc. (1994) 28
15 Cal.App.4th 540, 549 [appellate court affirming trial court grant of judicial notice of recorded
16 deeds in accordance with Evidence Code section 452 (g)].)
17 Here, the recorded CC&Rs constitute governing documents and an enforceable
18 declaration as those terms are defined by Civil Code sections 6546 and 6552. An enabling
19 declaration describes the rights and obligations of the association of each owner with respect to
20 property identified and encumbered by restrictions contained therein. And, Civil Code section
21 6856 empowers a commercial association and the owner of a separate interest with reciprocal
22 enforcement rights to contained therein. (Civ. Code, § 6856 (a).)
23 The Verified Complaint attached an exhibit to the CC&Rs, but otherwise failed to explain
24 the meaning of the exhibit, terms related thereto, or otherwise address, allege, describe, or
25 incorporate any other servitudes directly relevant to Plaintiffs’ claims; matters that are directly
26 relevant to Defendants’ demurrer. Accordingly, Defendants respectfully request the Court take
27 judicial notice over the following certified recorded document and servitudes therein:
28
BERDING & WEIL LLP
29S 4.
‘Walnu Cao Bs Se 386
recy Caitas 0
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT
. “Declaration Establishing a Plan for Commercial Condominium Ownership dated
November 15, 2010,” (“CC&Rs”), Document No.: 20964452, recorded in the Santa
Clara County Recorder’s Office on or about November 17, 2010. A true and correct
copy of the certified CC&Rs is attached hereto as Exhibit B.
C. The Court May Take Judicial Notice of Party Admissions
A court in considering a demurrer to a complaint can take judicial notice of records such
as admissions, answers to interrogatories, affidavits, and the like if they contain statements of the
plaintiff or plaintiff's agent that are inconsistent with allegations of a pleading before the court.
(Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605; see also
C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1103-1104 [trial court may take
judicial notice of truth of statements at demurrer stage when made by party in ruling on demurrer
10
without leave to amend]; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4h
11
471, 485 [on demurrer trial court may take judicial notice of party admissions or concessions in
12
deciding not to grant leave to amend]; Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986,
13
989-990 [on demurrer trial court “may consider matters that may be judicially noticed, including
14
a party’s admissions or concessions which cannot reasonably be controverted.”]; Evans, supra,
15
28 Cal.App.4th at 649-650 [on motion for judgment on pleadings court may take judicial notice
16
of something that cannot reasonably be controverted even if it negates an express allegation in
17
the pleading].) Similarly, courts have taken judicial notice of admissions of fact in a deposition.
18
(see e.g., Scannel v. County of Riverside (1984) 152 Cal.App.3d 596, 616-617.) And, an appellate
19
court affirming dismissal of an action after the trial court sustained a demurrer without leave to
20
amend, took judicial notice of plaintiffs’ affidavit in opposition to the demurrer, which
21
contradicted the complaint and established defendants’ conduct was not tortious. (Dwan v. Dixon
22
(1963) 216 Cal.App.2d 260, 264-265; see also Able v. Van Der Zee (1967) 256 Cal.App.2d 728,
23
734.)
24 The purpose of the rule is evident as even though facts plead in a complaint are taken as
25 true for purposes of a demurrer, trial courts “will not close their eyes to situations where a
26
complaint contains allegations of fact inconsistent with attached documents, or allegations
27
contrary to facts which are judicially noticed.” (Del E. Webb Corp., supra, 123 Cal.App.3d at
28
BERDING & WEIL LLP
29S -5-
‘Walnu Cao Bs Se 386
recy Caitas 0
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT
604; citing Alphonzo E. Bell Corp. v. Bell View Oil Syndicate (1941) 46 Cal.App.2d 684.) Thus, a
pleading valid on its face may nevertheless be subject to demurer when matters judicially noticed
by the court render the complaint meritless.
Here, the Court is presented with authority to take judicial notice of records such as
admissions, affidavits, answers to interrogatories, and deposition testimony when they contain
admissions from a party that are inconsistent with allegations of a pleading before the Court. The
Verified Complaint has inconsistent allegations regarding whether Plaintiffs secured prior
permission and consent from the Association to use Unit 9015 as a restaurant and construct a gas
10
utility line to service the unit. (cp. Verified Complaint, at {J 22; 26; 30; 35.) The Verified
11
Complaint also asserts allegations that contradict express provisions of the CC&Rs. Further
12
contradicting Plaintiffs’ verified allegations are Plaintiff Ho’s admissions before the Court on
13
14 November 7, 2017 that she never had permission from the Association to operate a restaurant or
15 install gas lines:
16
Q. Did you ever receive anything in writing with permission from the HOA?
17
18 A. I did not. Nothing was ever written.
19 Q. When you say “nothing was ever written,” do you mean there was no written
permission from David Alvarado?
20
A. There is permission from David Alvarado, but not from the board.” (Ex. C to
21
RIN, at 82:28-83:7.)
22 When pressed, Plaintiff Ho then admitted Mr. Alvarado did not approve her request to
23 change the unit from retail to restaurant use or construct a gas line, but instead agreed to
24 “support” her request to the Board:
25
Q. I’m trying to just narrow down whether or not the e-mails say that I’m going
26 to—do they say something to the effect of I support you, or I recommend
approval or do they say you are approved?
27
A. I support you.
28
BERDING & WEIL LLP
29S 6-
‘Walnu Cao Bs Se 0386
recy Caitas
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT
Q. Okay. And—
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
supporting you, but you interpreted that to mean approved?
A. Yes. (Ex. C to RJN at 86:19-87:2 see also at 83:3-7.)
The judicially noticeable definition of “support” is to promote the interests or cause of
something; not to give formal or official sanction of something which is the definition of
“approved.” (see Evid. Code, § 451 (e) [matters that must be judicially noticed include the true
10
signification of all English words].) As such, these highly relevant party admissions are not
11
subject to reasonable dispute, expressly contradict Plaintiffs’ verified allegations, and are
12
therefore matters upon which the Court may take judicial notice for purposes of evaluating
13
whether the Verified Complaint is subject to demurrer. Accordingly, Defendants respectfully
14
request the Court take judicial notice over the relevant portions of the following certified
transcript:
15
16 e Reporter’s Transcript of Proceedings Before The Honorable Aaron Persky, Judge
Department 22, on November 7, 2017. A true and correct copy of relevant
17 portions of the Reporter’s Transcript is attached hereto as Exhibit C.
18 Il. CONCLUSION
19 All of the matters subject to Defendants’ requests are relevant to this case and the Court’s
20 ruling on Defendants’ demurrers. (Coyne v. City and County of San Francisco (2017) 9
21 Cal.App.5th 1215, 1223 n.3.) And, the probative value of the subject matter of this request
22 outweighs the probability that such materials will necessitate undue consumption of time, create
23 substantial danger of undue prejudice, confuse the issues, or mislead the Court. For the foregoing
Mt
24
25 Mi]
26 Mt
27 Mi]
28
BERDING & WEIL LLP
29S -7-
‘Walnu Cao Bs Se 386
recy Caitas 0
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT
1 reasons, Defendants respectfully request the Court take judicial notice of Exhibits A through C
2 || and the definitions of “support” and “approve.”
3
4 Date: February 23, 2018 BERDING & WEIL LLP
By: i
Ni cholas A. Rog
A ‘on D. Zimmérman
Attorneys for Defendants
Vietnam Town Condominium Owners
Association, Inc. and Joseph Nguyen
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
BEI
20 0Le -8-
Wil Aso
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT
EXHIBIT A
(enor
é 7
fei!
COPS SUPERIOR COURT OF CALIFORN
COUNTY OF SANTA CLARA
os
a
DOWNTOWN COURTHOUSE
191 NorTH FirsTSTREET
San JOSE, CALIFORNIA 95113
Nov @ 8 2017
BMH A
CIVIL DIVISION
Supstior Dourt of CA County afar a Mata
———Jatie Nashet
Guy Wainwright Stilson EPUTY
505 Montgomery St 7FL
San Francisco CA 94111-2584
RE: San Francisco Pizza, Inc et al vs Vietnam Town Condominium Owners
Association, Inc et al
Case Number: 170V318151
PROOF OF SERVICE
ORDER DENYING PLAINTIFF'S REQUEST FOR PRELIMINARY INJUNCTION was delivered to the parties
listed below the above entitled case as set forth in the sworn declaration below.
If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the American with
Disabilities Act, please contact the Court Administrator's office at (408) 882-2700, or use the Court's TDD line (408) 882-2690 or the
Voice/TDD California Relay Service (800) 735-2922.
DECLARATION OF SERVICE BY MAIL: | declare that | served this notice by enclosing a true copy in a sealed envelope, addressed to
each person whose name is shown below, and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose,
CA on November 08, 2017. CLERK OF THE COURT, by Julie Nashed, Deputy.
ce: Michael G Ackerman 2391 The Alameda Ste 100 Santa Clara CA 95050
Daniel Joseph Mash McPharlin Sprinkles & Thomas 160 W Santa Clara #400 San Jose CA 95113
Nicholas Alexander Rogers Berding Weil LLP 2175 N California Blvd Suite 5 Walnut Creek CA 94596
CW-9027 REV 12/08/16 PROOF OF SERVICE
ENDORSED)
Rea Bes
SUPERIOR COURT, STATE OF CALIFOR
Nov 0 8 2017
COUNTY OF SANTA CLARA
t fa shod of tert sara
BY. Saperiog ane
SAN FRANCISCO PIZZA, INC., TAN
NGUYEN: NGHIA NGUYEN, and KIM
THUY HO.
Case No.: 17-CV-318151
Plaintiffs.
ORDER DENYING PLAINTIFF’S
VS. REQUEST FOR PRELIMINARY
INJUNCTION
VIETNAM TOWN CONDOMINIUM
OWNERS ASSOCIATION. INC., MATRIX Date: November 7, 2017
ASSOCIATION MANAGEMENT; JOSEPH Time: 9:00 AM
NGUYEN; LAP T, TANG; MICHAEL Department 22
JOHNSON; DAVID ALVARADO, and Judge: Hon. Aaron Persky
DOES | through 10, inclusive.
Defendants.
Plaintiffs’ Request for Preliminary Injunction came on for hearing on October 22
2017 at 10 a.m. in Department 22 before the Honorable Aaron Persky. Michael
Ackerman, Esq., and Daniel Mash, Esq., appeared on behalfof Plaintiffs; Nicholas
Rogers, Esq., appeared on behalf
of Defendant Vietnam Town Condominium Owners
Association (“Vietnam Town”); and Guy Stilson, Esq., appeared on behalf
of Defendant
Matrix Association Management. After considering the evidence and arguments of
counsel, the Court makes the following ruling:
A party seeking a preliminary injunction “ordinarily is required to present
evidence of the irreparable injury or interim harm that it will suffer ifan injunction is not
issued pending an adjudication of the merits.” (White v. Davis (2003) 30 Cal. 4th 528.
554.) “Asa general matter, the question whether a preliminary injunction should be
granted involves two interrelated factors: (1) the likelihood that the plaintiff will prevail
on the merits. and (2) the relative balance of harms that is likely to result from the
granting or denial of interim injunctive relief.” (/d.) “The granting of a mandatory
injunction pending trial is not permitted except in extreme cases where the right thereto is
clearly established.” (Teachers Ins. and Annuity - ssn. v. Furlotti (1999) 70 Cal.App.4"
1487. 1493 (citations omitted).) In addition. the general purpose of a preliminary
injunction is “the preservation of the status quo until a final determination of the merits of
the action.” (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512,528.)
Plaintiffs ask the Court to order “Defendants and all persons acting on behalf.
through or in concert with them to restore to Plaintiffs the gas line that was disconnected
from the meter labeled “9015° by reconnecting the gas line at the meter and at Plaintiffs”
Unit and thereafter ordering that defendants and all persons acting on behalfof. through
or in concert with them from disconnecting the gas line connected to Plaintiffs’ Unit or in
any way interfering with Plaintiffs’ quict enjoyment of the use of said gas line.”
(Plaintiffs* Ex Parte Application filed October 27. 2017.)
Plaintiffs will certainly suffer harm if they have no access to a gas line to open
their restaurant. Defendant Vietnam Town. through the declaration of David Alvarado.
argues that “if this injunction is granted. it will send a message to other owners of the
units that they can ignore and violate the CC&Rs and the rights of neighboring owners.
which wil! cause tremendous damage to all of Vietnam Town.” (Declaration of David
Alvarado, p. 2. lines 24-26.) With respect to the probability that Plaintiffs will prevail on
ot.ev er inform
the merits at trial. Alvarado further states in his Declaration that he did not
Plaintiffs or anyone else. either orally or in writing. that they were approved to use gas in
their unit 9015.” (Id. at p. 2. lines 14-15.) Defendants also introduced Exhibit A at the
17CV3 18151
Order Denying Preliminary Injunction
hearing, a May 15. 2017 email from Kim Ho to David Alvarado. stating in part: “] would
like to request a letter for permission from Hoa to install gas into my pizza unit 9015 with
permits from city of San Jose and pg and e.” At the hearing. Ho testified that she had an
email from Alvarado where he gave her permission to build a restaurant and have a gas
line in Unit 9015. Plaintiffs did not introduce this email into evidence at the hearing.
Having considered the legal standards cited above in light of the evidence and
arguments of counsel, the Court finds, on this limited evidentiary record. that Plaintiffs
have not “clearly established” their right to the mandatory injunction sought here. The
Court also concludes that a preliminary injunction will not preserve the status quo
pending trial. Accordingly, Plaintiff's motion for a preliminary injunction is DENIED.
SO ORDERED. November 8, 2017
Ce
Hon. Aaton Persk y
Judge of the Superior Court
17CV318151
Order Denying Preliminary Injunction
EXHBIT B
Recording Requested By:
DOCUMENT: 20964452 Pages: 109
When Recorded Return To: I AnD il Fees
Taxes.
Copies
AMT PAID
339 88
339 88
Hanna & Van Atta
525 University Avenue, Suite 600 REGINA ALCOMENDRAS ROE # @11
Palo Alto, California 94301 SANTA CLARA COUNTY RECORDER 11/17/2810
Recorded at the request of 1315 PM
Otd Republic Titie Company
VIETNAM TOWN
DECLARATION ESTABLISHING A PLAN
FOR COMMERCIAL CONDOMINIUM OWNERSHIP
IF THIS DOCUMENT CONTAINS ANY RESTRICTION BASED ON RACE, COLOR,]
RELIGION, SEX, SEXUAL ORIENTATION, FAMILIAL STATUS, MARITAL STATUS,
DISABILITY, NATIONAL ORIGIN, SOURCE OF INCOME AS DEFINED IN SUBDIVISION]
(P) OF SECTION 12955 OF THE GOVERNMENT CODE, OR ANCESTRY, THAT
RESTRICTION VIOLATES STATE AND FEDERAL FAIR HOUSING LAWS AND IS VOID,|
AND MAY BE REMOVED PURSUANT TO SECTION 12956.2 OF THE GOVERNMENT]
CODE. LAWFUL RESTRICTIONS UNDER STATE AND FEDERAL LAW ON THE AGE OF
OCCUPANTS IN SENIOR HOUSING OR HOUSING FOR OLDER PERSONS SHALL NOT BE|
CONSTRUED AS RESTRICTIONS BASED ON FAMILIAL STATUS,
Law Officesof
Hanna & Van Ata
‘525 UNIVERSITY AVENUE, SUITE 600
PALO ALTO, CA 94301
‘TELEFHONE(650) 321-700
VIETNAM TOWN
DECLARATION ESTABLISHING A PLAN
FOR COMMERCIAL CONDOMINIUM OWNERSHIP
TABLE OF CONTENTS
INTRODUCTORY PARAGRAPHS .....
A. Location and Description of Property
B. Mutually Beneficial Restrictions.
Cc. Phases...
ARTICLE I. DEFINITIONS
11 “Annexation”,
1.2, “Annexation Property”
13. “Articles”:
14. “ ‘Assessment’
15, “Assessment Lien’
16. “Association”:
17. “Association Commo!
1.8. “Board” or “Board of Directors
19. “Budget
1.10. “Building”
Ll “Building Common Area’
1.12. “Bylaws”:
1.13, “City”.
1.14, “Common Are:
1.15, “Common Expenses
1.16. “Common Interes!
1.17, “Condominium”:
1.18. “Condominium Building’
1,19. “Condominium Plan’
1.20. “County” .
1,21 “Davis-Stirling Act”
1.22. “Declarant
1,23, “Declaration
1.24, “Declaration of Annexation’
1.25, “Demising Wall”:
1.26. “First Lender”:
1.27. “First Mortgagi
1,28. “Foreclosure”:
1.29. “Governing Documents”:
1.30. “Hazardous Materials”
131 “Map
1,32. “Member’
1,33, “Mortgage’
1.34. “Mortgage”:
1,35 “Mortgagor”:
1,36, “Notice of Delinquent Assessment’
1,37. “Occupant
1.38, “Owner” or “Owner
1.39, “Person’
1.40. “Phas
1.41. “Phase
1.42. “Project
1,43, “Property” or “Propertie:
1.44, “Regular Assessments’
11/15/10 -fi-
TAWPWINGO\PROJECTS\VIETNAM TOWN\DEC{I | 15 10].doc
1.45, “Reimbursement Charge’
1.46. “Reserves or Reserve Funds”:
1.47. “Rules”:
1.48. “Share
1.49. “Special Assessments”
1.50. “Uni
151 “Uti ly Chase”:
1.52 “Utility Facilities’
1.53 “General Rules”:
1.54. “Articles, Sections and Exhibi
1.55, “Priorities and Inconsistencies’
1,56. “Severability’
1.57, “Statutory References’
ARTICLE If. DESCRIPTION OF PROJECT, DIVISION OF PROPERTY, AND CREATION OF
PROPERTY RIGHTS
2A. Description of Project.
2,2. Division of Property:
Units
Building Common Area
Association Common Area
Parking
No Separate Conveyance of Undivided Interests
2.3. Rights of Entry and Use:
2.4, Partition Prohibited.
25 All Easements Part of Common Plan:
26. Combining or Separating Condominiums:
2.7. Annexatiot 10
Annexation Pursvant to Plan 10
Annexation Pursuant to Approval iM
Effect of Annexation i
Right of Successor Declarant to Annex. MW
ARTICLE IL. ASSOCIATION, ADMINISTRATION, MEMBERSHIP AND VOTING RIGHTS M
3.1L Association to Manage Common Area: 1]
3.2. Membership and Voting Rights 11
3.3. Transferred Membership 12
ARTICLE IV. ASSESSMENTS 12
41 Creation of the Lien and Personal Obligation of Assessments. 2
42 Purpose of Assessments 43
43 Assessments 13
Regular Assessment 13
Special Assessments. 13
44, Reserves for Replacement 13
45 Division of Assessments 14
46. Date of Commencement of Regular Assessm Due Dates 14
47 Effect of Nonpayment of Assessments. 14
4.8, Transfer of Unit by Sale or Foreclosure. 14
49. Priorities; Enforcement, Remedies. 1S
Statement of Charges 15
Payment Plan. 16
Notice of Delinquent Assessment 16
Lien Releases 16
Enforcement of Assessment Lien and Limitations on Foreclosure 17
Foreclosure. 17
Sale by Trustee. 18
Purchase By Association 19
Suspension of Rights of Delinquent Owner 19
Fines and Penalties 19
4.30. No Offsets 20
11/18/10 oti
TAWPWIN60O\PROJECTSWIETNAM TOWN\DECTIL 15 {0).doc
4.11 Reimbursement Charges 20
4.12. Unallocated Taxes 20
ARTICLE V. DUTIES AND POWERS OF THE ASSOCIATIO! MAINTENANCE 20
5.1 Duties 20
A. Maintenance 20
(1) Maintenance by Association. 20
@) Termite, Dry-Rot and Pest Control . 20
(b) Common Area Landscaping .... 21
(c) Association vs. Owner Responsibility 21
(2) Maintenance By Unit Owners . 21
(a) Unit Interior . . 21
{b) HVAC Equipment 22
(c) Mold... 22
(d) Remedy for Failure of Owners to Maintain 22
(e) Cooperation with Association.
Insurance.. 22
Discharge of Liens . 22
Assessments ..... 22
Payment of Expenses and Taxes 22
Enforcement 22
5.2. Powers... 23
Utility Service .
Easements.
Manager 23
Adoption of Rules
Access . .
Assessments and Liens...
Fines and Disciplinary Action. 24
Enforcement... 24
Acquisition and Disposition of Propert:
Loans... 24
Dedication 24
Contract
Delegation
Security .....
Appointment of Trustee .
Litigation...
Other Powers. 26
5.3. Commencement of Association’s Duties and Powers 26
ARTICLE VI. UTILITIES 26
6.1. Owners’ Rights and Duties ... 26
6.2. Easements for Utilities and Maintenance. 27
6.3. Association's Duties. 27
6.4. Access Easements . . 27
ARTICLE VII. USE RESTRICTIONS 28
Ww Permitted Uses
7.2. Prohibited Uses
73. Restrictions on Use 29
14. Nuisances:....
75. Hazardous Materials...
7.6. Vehicle Restrictions and Towin, 31
47. Signs. 32
78. Garbage and Refuse Disposal. 33
79. Radio
Preview
170V318151 Santa Clara — Civil A. Hwan Nicholas A. Rogers, California Bar No. 248900 E-FILED Aaron D. Zimmerman, California Bar No. 278624 BERDING & WEIL LLP 2/23/2018 5:37 PM 2175 N. California Blvd, Suite 500 Clerk of Court Walnut Creek, California 94596 Superior Court of CA, Telephone: 925/838-2090 County of Santa Clara Facsimile: 925/820-5592 170V318151 nrogers@berdingweil.com Reviewed By: A. Hwang Envelope: 1251435 Attorneys for Defendants VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC. and JOSEPH NGUYEN SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA - UNLIMITED 10 SAN FRANCISCO PIZZA, INC., TAN No. 17CV318151 11 NGUYEN, NGHIA NGUYEN and KIM THUY HO, 12 REQUEST FOR JUDICIAL NOTICE IN Plaintiffs, SUPPORT OF DEMURRER TO 13 PLAINTIFFS’ COMPLAINT vs. 14 Hearing Date: May 29, 2018 VIETNAM TOWN CONDOMINIUM Time: 9:00 a.m. 15 OWNERS ASSOCIATION, INC.; MATRIX Dept. 19 ASSOCIATION MANAGEMENT; JOSEPH 16 NGUYEN, an Individual; LAP T. TANG, an Hon. Judge Peter H. Kirwan Individual; MICHAEL JOHNSON, an 17 Individual, DAVID ALVARADO, an Individual; AQUATEK PLUMBING, INC. a 18 California corporation; and DOES Ithrough 50 inclusive, Action Filed: October 25, 2017 19 Trial Date: None Defendants. 20 / 21 Defendants VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION, INC. 22 (“Association”) and JOSEPH NGUYEN (collectively demurring defendants are referenced as 23 “Defendants”) request the Court, in considering Defendants’ Demurrer to Plaintiffs SAN 24 FRANCISCO PIZZA, INC. (“SF Pizza’), TAN NGUYEN, NGHIA NGUYEN, and KIM THUY 25 HO’S (collectively “Plaintiffs”) verified complaint filed on or about October 25, 2017 in the 26 above entitled Court (“Verified Complaint”) take judicial notice of the following: (1) an Order 27 from the Court dated November 8, 2017 (“Order”); (2) a certified copy of the Association’s 28 BERDING & WEIL LLP 29S -1- ‘Walnu Cao Bs Se 386 recy Caitas 0 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT recorded declaration; (3) relevant portions of a reporter’s transcript of proceedings before the Court on November 7, 2017 that have party admissions; and (4) the true significance of English words “support” and “approve.” 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 retail unit, began altering the unit into restaurant (without Association approval), constructed a gas line on the common area roof and then tapped into an as-built gas line designed 10 to service a neighboring restaurant unit; all without Association approval. In response, the 11 neighboring unit owners filed suit against Plaintiffs and the Association resulting in an 12 enforceable settlement agreement that obligated the Association to restore gas utility service to 13 the as-built utility lines that provided gas service to the neighbor’s restaurant unit. 14 Plaintiffs then filed the Verified Complaint that fails to assert a single sustainable cause of 15 action against Defendants. In doing so, Plaintiffs impermissibly plead contradictory and 16 antagonistic facts in an attempt to sustain their futile claims. For instance, Plaintiffs contend the 17 Association provided express permission to install their gas line to support certain intentional 18 torts, but then allege the Association abdicated all responsibility with respect to reviewing their 19 application for purposes of their breach of contract claim. 20 Plaintiffs’ inability to assert a single viable cause of action is further demonstrated by 21 their failure to address, allege, describe, or incorporate any relevant servitude in the Association’s 22 “Declaration of Establishing a plan for Commercial Condominium Ownership dated November 23 15, 2010” (“CC&Rs”). Relevant provisions of the CC&Rs completely contradict Plaintiffs’ 24 verified allegations and defeat their claims. The verified allegations are also contradicted by 25 Plaintiff Ho’s sworn admissions provided to the Court during an evidentiary hearing before Judge 26 Aaron Persky regarding Plaintiffs request for a preliminary injunction that was denied in an 27 Order dated November 8, 2017. Plaintiff Ho conclusively admitted neither the Association nor 28 management ever approved a request to convert the unit into a restaurant or construct a common BERDING & WEIL LLP 29S -2- ‘Walnu Cao Bs Se 0386 recy Caitas REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT area gas line to service the unit for such purposes. Il. DEFENDANTS RESPECTFULLY REQUEST THE COURT TAKE JUDICIAL NOTICE OF THE COURT’S ORDER DATED NOVEMBER 8, 2017, THE ASSOCIATION’S CC&RS, RELEVANT PARTY ADMISSIONS, AND THE MEANING OF CERTAIN ENGLISH WORDS A court is required to take judicial notice of matters specified in Evidence Code section 451 and may take judicial notice of matters set forth in Evidence Code section 452. However, the court is required to take judicial notice of matters set forth in Evidence Code section 452 if a party requests judicial notice be taken, gives each adverse party notice of the request, and furnishes the court with sufficient information to enable it to take judicial notice of the matter. 10 (Evid. Code, § 453.) This request is made pursuant to Evidence Code sections 451, 452 (c), 452 11 (d), 452 (g), 452 (h), and 453 on the following grounds: 12 A. The Court May Take Judicial Notice of the Order as a Record of the Court 13 Under Evidence Code section 452 (d), a court can take judicial notice of the existence of 14 each document in a court file. (see e.g., Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564; Hart 15 y. Darwish (2017) 12 Cal.App.Sth 218, 224 [appellate court affirmed trial court ruling taking 16 judicial notice of minute orders and transcripts from underlying unlawful detainer action].) A 17 court may also take judicial notice of the truth of facts asserted in court orders. (see e.g., In re 18 Tanya F. (1980) 111 Cal.App.3d 436, 440.) Here, the Court held a hearing on Plaintiffs’ request 19 for preliminary injunction on November 7, 2017 and denied the request via an Order dated 20 November 8, 2017. The Order reflects the following finding: 21 The Court also concludes that a preliminary injunction will not preserve the status quo pending trial. Accordingly, Plaintiff's motion for a preliminary injunction is 22 DENIED. 23 Prior to the filing of the Verified Complaint, the status quo did not include operation of 24 Unit 9015 as a restaurant or service of a gas line to the unit. Accordingly, Defendants respectfully 25 request the Court take judicial notice over the existence of the Order and following contents 26 therein: 27 . Order Denying Plaintiff's Request for Preliminary Injunction, filed in the matter 28 entitled San Francisco Pizza, Inc., et al. v. Vietnam Town Condominium Owners BERDING & WEIL LLP 29S 3- ‘Walnu Cao Bs Se 386 recy Caitas 0 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT Association, Inc., Case No.: 17-CV-318151, on November 8, 2017. A true and correct copy of the Order is attached hereto as Exhibit A. B. The Court May Take Judicial Notice of Recorded Land-Use Instruments Evidence Code section 452 (h) provides the Court may take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (See e.g. Stormedia, Inc. vy, Superior Court (1990) 20 Cal.4th 448, 457 n.9.) And, Evidence Code section 452 (g) permits courts to take judicial notice of facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject matter of dispute. Courts have consistently taken judicial notice of recorded instruments under Section 452 (h) and 10 Section 452 (g) of the Evidence Code in similar circumstances. (see Satchmed Plaza Owners 11 Association v. UWMC Hospital Corporation (2008) 167 Cal.App.4th 1034, 1040-1041 [granting 12 request for judicial notice of recorded instruments]; McElroy v. Chase Manhattan Mortgage 13 Corporation (2005) 134 Cal.App.4th 388, 394 [granting request for judicial notice of instruments 14 recorded in county official records]; see also Evans v. California Trailer Court, Inc. (1994) 28 15 Cal.App.4th 540, 549 [appellate court affirming trial court grant of judicial notice of recorded 16 deeds in accordance with Evidence Code section 452 (g)].) 17 Here, the recorded CC&Rs constitute governing documents and an enforceable 18 declaration as those terms are defined by Civil Code sections 6546 and 6552. An enabling 19 declaration describes the rights and obligations of the association of each owner with respect to 20 property identified and encumbered by restrictions contained therein. And, Civil Code section 21 6856 empowers a commercial association and the owner of a separate interest with reciprocal 22 enforcement rights to contained therein. (Civ. Code, § 6856 (a).) 23 The Verified Complaint attached an exhibit to the CC&Rs, but otherwise failed to explain 24 the meaning of the exhibit, terms related thereto, or otherwise address, allege, describe, or 25 incorporate any other servitudes directly relevant to Plaintiffs’ claims; matters that are directly 26 relevant to Defendants’ demurrer. Accordingly, Defendants respectfully request the Court take 27 judicial notice over the following certified recorded document and servitudes therein: 28 BERDING & WEIL LLP 29S 4. ‘Walnu Cao Bs Se 386 recy Caitas 0 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT . “Declaration Establishing a Plan for Commercial Condominium Ownership dated November 15, 2010,” (“CC&Rs”), Document No.: 20964452, recorded in the Santa Clara County Recorder’s Office on or about November 17, 2010. A true and correct copy of the certified CC&Rs is attached hereto as Exhibit B. C. The Court May Take Judicial Notice of Party Admissions A court in considering a demurrer to a complaint can take judicial notice of records such as admissions, answers to interrogatories, affidavits, and the like if they contain statements of the plaintiff or plaintiff's agent that are inconsistent with allegations of a pleading before the court. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605; see also C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1103-1104 [trial court may take judicial notice of truth of statements at demurrer stage when made by party in ruling on demurrer 10 without leave to amend]; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4h 11 471, 485 [on demurrer trial court may take judicial notice of party admissions or concessions in 12 deciding not to grant leave to amend]; Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 13 989-990 [on demurrer trial court “may consider matters that may be judicially noticed, including 14 a party’s admissions or concessions which cannot reasonably be controverted.”]; Evans, supra, 15 28 Cal.App.4th at 649-650 [on motion for judgment on pleadings court may take judicial notice 16 of something that cannot reasonably be controverted even if it negates an express allegation in 17 the pleading].) Similarly, courts have taken judicial notice of admissions of fact in a deposition. 18 (see e.g., Scannel v. County of Riverside (1984) 152 Cal.App.3d 596, 616-617.) And, an appellate 19 court affirming dismissal of an action after the trial court sustained a demurrer without leave to 20 amend, took judicial notice of plaintiffs’ affidavit in opposition to the demurrer, which 21 contradicted the complaint and established defendants’ conduct was not tortious. (Dwan v. Dixon 22 (1963) 216 Cal.App.2d 260, 264-265; see also Able v. Van Der Zee (1967) 256 Cal.App.2d 728, 23 734.) 24 The purpose of the rule is evident as even though facts plead in a complaint are taken as 25 true for purposes of a demurrer, trial courts “will not close their eyes to situations where a 26 complaint contains allegations of fact inconsistent with attached documents, or allegations 27 contrary to facts which are judicially noticed.” (Del E. Webb Corp., supra, 123 Cal.App.3d at 28 BERDING & WEIL LLP 29S -5- ‘Walnu Cao Bs Se 386 recy Caitas 0 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT 604; citing Alphonzo E. Bell Corp. v. Bell View Oil Syndicate (1941) 46 Cal.App.2d 684.) Thus, a pleading valid on its face may nevertheless be subject to demurer when matters judicially noticed by the court render the complaint meritless. Here, the Court is presented with authority to take judicial notice of records such as admissions, affidavits, answers to interrogatories, and deposition testimony when they contain admissions from a party that are inconsistent with allegations of a pleading before the Court. The Verified Complaint has inconsistent allegations regarding whether Plaintiffs secured prior permission and consent from the Association to use Unit 9015 as a restaurant and construct a gas 10 utility line to service the unit. (cp. Verified Complaint, at {J 22; 26; 30; 35.) The Verified 11 Complaint also asserts allegations that contradict express provisions of the CC&Rs. Further 12 contradicting Plaintiffs’ verified allegations are Plaintiff Ho’s admissions before the Court on 13 14 November 7, 2017 that she never had permission from the Association to operate a restaurant or 15 install gas lines: 16 Q. Did you ever receive anything in writing with permission from the HOA? 17 18 A. I did not. Nothing was ever written. 19 Q. When you say “nothing was ever written,” do you mean there was no written permission from David Alvarado? 20 A. There is permission from David Alvarado, but not from the board.” (Ex. C to 21 RIN, at 82:28-83:7.) 22 When pressed, Plaintiff Ho then admitted Mr. Alvarado did not approve her request to 23 change the unit from retail to restaurant use or construct a gas line, but instead agreed to 24 “support” her request to the Board: 25 Q. I’m trying to just narrow down whether or not the e-mails say that I’m going 26 to—do they say something to the effect of I support you, or I recommend approval or do they say you are approved? 27 A. I support you. 28 BERDING & WEIL LLP 29S 6- ‘Walnu Cao Bs Se 0386 recy Caitas REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT Q. Okay. And— 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 supporting you, but you interpreted that to mean approved? A. Yes. (Ex. C to RJN at 86:19-87:2 see also at 83:3-7.) The judicially noticeable definition of “support” is to promote the interests or cause of something; not to give formal or official sanction of something which is the definition of “approved.” (see Evid. Code, § 451 (e) [matters that must be judicially noticed include the true 10 signification of all English words].) As such, these highly relevant party admissions are not 11 subject to reasonable dispute, expressly contradict Plaintiffs’ verified allegations, and are 12 therefore matters upon which the Court may take judicial notice for purposes of evaluating 13 whether the Verified Complaint is subject to demurrer. Accordingly, Defendants respectfully 14 request the Court take judicial notice over the relevant portions of the following certified transcript: 15 16 e Reporter’s Transcript of Proceedings Before The Honorable Aaron Persky, Judge Department 22, on November 7, 2017. A true and correct copy of relevant 17 portions of the Reporter’s Transcript is attached hereto as Exhibit C. 18 Il. CONCLUSION 19 All of the matters subject to Defendants’ requests are relevant to this case and the Court’s 20 ruling on Defendants’ demurrers. (Coyne v. City and County of San Francisco (2017) 9 21 Cal.App.5th 1215, 1223 n.3.) And, the probative value of the subject matter of this request 22 outweighs the probability that such materials will necessitate undue consumption of time, create 23 substantial danger of undue prejudice, confuse the issues, or mislead the Court. For the foregoing Mt 24 25 Mi] 26 Mt 27 Mi] 28 BERDING & WEIL LLP 29S -7- ‘Walnu Cao Bs Se 386 recy Caitas 0 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT 1 reasons, Defendants respectfully request the Court take judicial notice of Exhibits A through C 2 || and the definitions of “support” and “approve.” 3 4 Date: February 23, 2018 BERDING & WEIL LLP By: i Ni cholas A. Rog A ‘on D. Zimmérman Attorneys for Defendants Vietnam Town Condominium Owners Association, Inc. and Joseph Nguyen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BEI 20 0Le -8- Wil Aso REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO PLAINTIFFS’ COMPLAINT EXHIBIT A (enor é 7 fei! COPS SUPERIOR COURT OF CALIFORN COUNTY OF SANTA CLARA os a DOWNTOWN COURTHOUSE 191 NorTH FirsTSTREET San JOSE, CALIFORNIA 95113 Nov @ 8 2017 BMH A CIVIL DIVISION Supstior Dourt of CA County afar a Mata ———Jatie Nashet Guy Wainwright Stilson EPUTY 505 Montgomery St 7FL San Francisco CA 94111-2584 RE: San Francisco Pizza, Inc et al vs Vietnam Town Condominium Owners Association, Inc et al Case Number: 170V318151 PROOF OF SERVICE ORDER DENYING PLAINTIFF'S REQUEST FOR PRELIMINARY INJUNCTION was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the American with Disabilities Act, please contact the Court Administrator's office at (408) 882-2700, or use the Court's TDD line (408) 882-2690 or the Voice/TDD California Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MAIL: | declare that | served this notice by enclosing a true copy in a sealed envelope, addressed to each person whose name is shown below, and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose, CA on November 08, 2017. CLERK OF THE COURT, by Julie Nashed, Deputy. ce: Michael G Ackerman 2391 The Alameda Ste 100 Santa Clara CA 95050 Daniel Joseph Mash McPharlin Sprinkles & Thomas 160 W Santa Clara #400 San Jose CA 95113 Nicholas Alexander Rogers Berding Weil LLP 2175 N California Blvd Suite 5 Walnut Creek CA 94596 CW-9027 REV 12/08/16 PROOF OF SERVICE ENDORSED) Rea Bes SUPERIOR COURT, STATE OF CALIFOR Nov 0 8 2017 COUNTY OF SANTA CLARA t fa shod of tert sara BY. Saperiog ane SAN FRANCISCO PIZZA, INC., TAN NGUYEN: NGHIA NGUYEN, and KIM THUY HO. Case No.: 17-CV-318151 Plaintiffs. ORDER DENYING PLAINTIFF’S VS. REQUEST FOR PRELIMINARY INJUNCTION VIETNAM TOWN CONDOMINIUM OWNERS ASSOCIATION. INC., MATRIX Date: November 7, 2017 ASSOCIATION MANAGEMENT; JOSEPH Time: 9:00 AM NGUYEN; LAP T, TANG; MICHAEL Department 22 JOHNSON; DAVID ALVARADO, and Judge: Hon. Aaron Persky DOES | through 10, inclusive. Defendants. Plaintiffs’ Request for Preliminary Injunction came on for hearing on October 22 2017 at 10 a.m. in Department 22 before the Honorable Aaron Persky. Michael Ackerman, Esq., and Daniel Mash, Esq., appeared on behalfof Plaintiffs; Nicholas Rogers, Esq., appeared on behalf of Defendant Vietnam Town Condominium Owners Association (“Vietnam Town”); and Guy Stilson, Esq., appeared on behalf of Defendant Matrix Association Management. After considering the evidence and arguments of counsel, the Court makes the following ruling: A party seeking a preliminary injunction “ordinarily is required to present evidence of the irreparable injury or interim harm that it will suffer ifan injunction is not issued pending an adjudication of the merits.” (White v. Davis (2003) 30 Cal. 4th 528. 554.) “Asa general matter, the question whether a preliminary injunction should be granted involves two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits. and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.” (/d.) “The granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” (Teachers Ins. and Annuity - ssn. v. Furlotti (1999) 70 Cal.App.4" 1487. 1493 (citations omitted).) In addition. the general purpose of a preliminary injunction is “the preservation of the status quo until a final determination of the merits of the action.” (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512,528.) Plaintiffs ask the Court to order “Defendants and all persons acting on behalf. through or in concert with them to restore to Plaintiffs the gas line that was disconnected from the meter labeled “9015° by reconnecting the gas line at the meter and at Plaintiffs” Unit and thereafter ordering that defendants and all persons acting on behalfof. through or in concert with them from disconnecting the gas line connected to Plaintiffs’ Unit or in any way interfering with Plaintiffs’ quict enjoyment of the use of said gas line.” (Plaintiffs* Ex Parte Application filed October 27. 2017.) Plaintiffs will certainly suffer harm if they have no access to a gas line to open their restaurant. Defendant Vietnam Town. through the declaration of David Alvarado. argues that “if this injunction is granted. it will send a message to other owners of the units that they can ignore and violate the CC&Rs and the rights of neighboring owners. which wil! cause tremendous damage to all of Vietnam Town.” (Declaration of David Alvarado, p. 2. lines 24-26.) With respect to the probability that Plaintiffs will prevail on ot.ev er inform the merits at trial. Alvarado further states in his Declaration that he did not Plaintiffs or anyone else. either orally or in writing. that they were approved to use gas in their unit 9015.” (Id. at p. 2. lines 14-15.) Defendants also introduced Exhibit A at the 17CV3 18151 Order Denying Preliminary Injunction hearing, a May 15. 2017 email from Kim Ho to David Alvarado. stating in part: “] would like to request a letter for permission from Hoa to install gas into my pizza unit 9015 with permits from city of San Jose and pg and e.” At the hearing. Ho testified that she had an email from Alvarado where he gave her permission to build a restaurant and have a gas line in Unit 9015. Plaintiffs did not introduce this email into evidence at the hearing. Having considered the legal standards cited above in light of the evidence and arguments of counsel, the Court finds, on this limited evidentiary record. that Plaintiffs have not “clearly established” their right to the mandatory injunction sought here. The Court also concludes that a preliminary injunction will not preserve the status quo pending trial. Accordingly, Plaintiff's motion for a preliminary injunction is DENIED. SO ORDERED. November 8, 2017 Ce Hon. Aaton Persk y Judge of the Superior Court 17CV318151 Order Denying Preliminary Injunction EXHBIT B Recording Requested By: DOCUMENT: 20964452 Pages: 109 When Recorded Return To: I AnD il Fees Taxes. Copies AMT PAID 339 88 339 88 Hanna & Van Atta 525 University Avenue, Suite 600 REGINA ALCOMENDRAS ROE # @11 Palo Alto, California 94301 SANTA CLARA COUNTY RECORDER 11/17/2810 Recorded at the request of 1315 PM Otd Republic Titie Company VIETNAM TOWN DECLARATION ESTABLISHING A PLAN FOR COMMERCIAL CONDOMINIUM OWNERSHIP IF THIS DOCUMENT CONTAINS ANY RESTRICTION BASED ON RACE, COLOR,] RELIGION, SEX, SEXUAL ORIENTATION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, NATIONAL ORIGIN, SOURCE OF INCOME AS DEFINED IN SUBDIVISION] (P) OF SECTION 12955 OF THE GOVERNMENT CODE, OR ANCESTRY, THAT RESTRICTION VIOLATES STATE AND FEDERAL FAIR HOUSING LAWS AND IS VOID,| AND MAY BE REMOVED PURSUANT TO SECTION 12956.2 OF THE GOVERNMENT] CODE. LAWFUL RESTRICTIONS UNDER STATE AND FEDERAL LAW ON THE AGE OF OCCUPANTS IN SENIOR HOUSING OR HOUSING FOR OLDER PERSONS SHALL NOT BE| CONSTRUED AS RESTRICTIONS BASED ON FAMILIAL STATUS, Law Officesof Hanna & Van Ata ‘525 UNIVERSITY AVENUE, SUITE 600 PALO ALTO, CA 94301 ‘TELEFHONE(650) 321-700 VIETNAM TOWN DECLARATION ESTABLISHING A PLAN FOR COMMERCIAL CONDOMINIUM OWNERSHIP TABLE OF CONTENTS INTRODUCTORY PARAGRAPHS ..... A. Location and Description of Property B. Mutually Beneficial Restrictions. Cc. Phases... ARTICLE I. DEFINITIONS 11 “Annexation”, 1.2, “Annexation Property” 13. “Articles”: 14. “ ‘Assessment’ 15, “Assessment Lien’ 16. “Association”: 17. “Association Commo! 1.8. “Board” or “Board of Directors 19. “Budget 1.10. “Building” Ll “Building Common Area’ 1.12. “Bylaws”: 1.13, “City”. 1.14, “Common Are: 1.15, “Common Expenses 1.16. “Common Interes! 1.17, “Condominium”: 1.18. “Condominium Building’ 1,19. “Condominium Plan’ 1.20. “County” . 1,21 “Davis-Stirling Act” 1.22. “Declarant 1,23, “Declaration 1.24, “Declaration of Annexation’ 1.25, “Demising Wall”: 1.26. “First Lender”: 1.27. “First Mortgagi 1,28. “Foreclosure”: 1.29. “Governing Documents”: 1.30. “Hazardous Materials” 131 “Map 1,32. “Member’ 1,33, “Mortgage’ 1.34. “Mortgage”: 1,35 “Mortgagor”: 1,36, “Notice of Delinquent Assessment’ 1,37. “Occupant 1.38, “Owner” or “Owner 1.39, “Person’ 1.40. “Phas 1.41. “Phase 1.42. “Project 1,43, “Property” or “Propertie: 1.44, “Regular Assessments’ 11/15/10 -fi- TAWPWINGO\PROJECTS\VIETNAM TOWN\DEC{I | 15 10].doc 1.45, “Reimbursement Charge’ 1.46. “Reserves or Reserve Funds”: 1.47. “Rules”: 1.48. “Share 1.49. “Special Assessments” 1.50. “Uni 151 “Uti ly Chase”: 1.52 “Utility Facilities’ 1.53 “General Rules”: 1.54. “Articles, Sections and Exhibi 1.55, “Priorities and Inconsistencies’ 1,56. “Severability’ 1.57, “Statutory References’ ARTICLE If. DESCRIPTION OF PROJECT, DIVISION OF PROPERTY, AND CREATION OF PROPERTY RIGHTS 2A. Description of Project. 2,2. Division of Property: Units Building Common Area Association Common Area Parking No Separate Conveyance of Undivided Interests 2.3. Rights of Entry and Use: 2.4, Partition Prohibited. 25 All Easements Part of Common Plan: 26. Combining or Separating Condominiums: 2.7. Annexatiot 10 Annexation Pursvant to Plan 10 Annexation Pursuant to Approval iM Effect of Annexation i Right of Successor Declarant to Annex. MW ARTICLE IL. ASSOCIATION, ADMINISTRATION, MEMBERSHIP AND VOTING RIGHTS M 3.1L Association to Manage Common Area: 1] 3.2. Membership and Voting Rights 11 3.3. Transferred Membership 12 ARTICLE IV. ASSESSMENTS 12 41 Creation of the Lien and Personal Obligation of Assessments. 2 42 Purpose of Assessments 43 43 Assessments 13 Regular Assessment 13 Special Assessments. 13 44, Reserves for Replacement 13 45 Division of Assessments 14 46. Date of Commencement of Regular Assessm Due Dates 14 47 Effect of Nonpayment of Assessments. 14 4.8, Transfer of Unit by Sale or Foreclosure. 14 49. Priorities; Enforcement, Remedies. 1S Statement of Charges 15 Payment Plan. 16 Notice of Delinquent Assessment 16 Lien Releases 16 Enforcement of Assessment Lien and Limitations on Foreclosure 17 Foreclosure. 17 Sale by Trustee. 18 Purchase By Association 19 Suspension of Rights of Delinquent Owner 19 Fines and Penalties 19 4.30. No Offsets 20 11/18/10 oti TAWPWIN60O\PROJECTSWIETNAM TOWN\DECTIL 15 {0).doc 4.11 Reimbursement Charges 20 4.12. Unallocated Taxes 20 ARTICLE V. DUTIES AND POWERS OF THE ASSOCIATIO! MAINTENANCE 20 5.1 Duties 20 A. Maintenance 20 (1) Maintenance by Association. 20 @) Termite, Dry-Rot and Pest Control . 20 (b) Common Area Landscaping .... 21 (c) Association vs. Owner Responsibility 21 (2) Maintenance By Unit Owners . 21 (a) Unit Interior . . 21 {b) HVAC Equipment 22 (c) Mold... 22 (d) Remedy for Failure of Owners to Maintain 22 (e) Cooperation with Association. Insurance.. 22 Discharge of Liens . 22 Assessments ..... 22 Payment of Expenses and Taxes 22 Enforcement 22 5.2. Powers... 23 Utility Service . Easements. Manager 23 Adoption of Rules Access . . Assessments and Liens... Fines and Disciplinary Action. 24 Enforcement... 24 Acquisition and Disposition of Propert: Loans... 24 Dedication 24 Contract Delegation Security ..... Appointment of Trustee . Litigation... Other Powers. 26 5.3. Commencement of Association’s Duties and Powers 26 ARTICLE VI. UTILITIES 26 6.1. Owners’ Rights and Duties ... 26 6.2. Easements for Utilities and Maintenance. 27 6.3. Association's Duties. 27 6.4. Access Easements . . 27 ARTICLE VII. USE RESTRICTIONS 28 Ww Permitted Uses 7.2. Prohibited Uses 73. Restrictions on Use 29 14. Nuisances:.... 75. Hazardous Materials... 7.6. Vehicle Restrictions and Towin, 31 47. Signs. 32 78. Garbage and Refuse Disposal. 33 79. Radio