Preview
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RONALD R. ROSSI (SBN 43067)
MADOLYN D. ORR (SBN 280608)
ROSSI, HAMERSLOUGH, REISCHL & CHUCK
l
F L EORTY
SAN MATEO
Q
(\ 1960 The Alameda, Suite 200
09 VA 3 San Jose, CA 95126-1493
V Tel: (408) 261-4252
4 Fax: (408) 261-4292
DEPUTY CLERK
5 Attorneys for Defendant & Cross-Complainant
KING PLAZA CENTER, LLC
6
SUPERIOR COURT OF THE STATE OF CALIFORN
/
7
FOR THE COUNTY OF SAN MATEO
8
48
10
9 DBP INVESTMENTS,
Partnership,
a California General Case No.: CIV53 897
EX PARTE APPLICA ION-FOR
//
Plaintiff, LEAVE TO FILE AMENDED ANSWER
11
vs. Date: July 26, 2017
12 Time: 2:00pm.
KING PLAZA CENTER, LLC, a Delaware Dept: Law & Motion
13 Limited Liability Company, BUA-QUACH, an
individual, SOVAN LIEN, an individual,
14 DONG VUONG, an 1nd1v1dual, THANH LAI, Action Filed: June 1, 2016
and DOES 1 through 10’ Trial Date: November 13, 2017
15
Defendants.
16
KING PLAZA CENTER, LLC, a Delaware
17 Limited Liability Company,
\
1 8 Cross-Complainant,
1 9 vs.
20 DBP INVESTMENTS, a California General
Partnership, and ROES 1 through 10,
21
Cross-Defendant.
22 I
ClV538897
I
EPA
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23 2.
5:35:38
Application
24
1'l/llII/IIll/IIII/Il/I/II/I/III/I/Ill/I
A
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[hulk/all"? 26 By way of this Application, Defendant / Cross-Complainant KING PLAZA CENTER,
Suilc 200
San Jose. CA . .
(43152223332 27 LLC, a Delaware limited liability company (“KPC”), seeks an order allowmg the fihng of the
Fax (408) 2“ 4292
28 proposed Amended Answer attached hereto as Exhibit A.
EX PARTE APPLICATION FOR LEAVE TO FILE AMENDED ANSWER ,
l
l I. NOTICE OF THIS EX PARTE APPLICATION
2 All counsel were given sufficient notice of this ex parte application. (Decl. Orr 113-7.) A11
U.)
counsel were first asked whether they were willing to stipulate to the filing of the proposed
Amended Answer. (Id.) Counsel for the other defendants indicated that he would stipulate to
5 agree that the proposed Amended Answer could be filed. (Id. 116.) Counsel for plaintiff DBP
6 Investments (“DBP”) responded that he would not stipulate, but he did not say why not. (Id. 117.)
7 Counsel for plaintiff DBP indicated that he would appear to oppose. (Id.)
8 II. THE PROPOSED AMENDMENT
9 Defendant KPC seeks leave to amend its Answer to add one affirmative defense. The
10 affirmative defense to be added is affirmative defense number “22” on the proposed
11 Amended Answer attached hereto as Exhibit A. KPC does not propose to delete any text
12 from its existing Answer. (Decl. Orr 118; Cal. Rule of Court 3.1324(a).)
13 Plaintiff DBP asserts that it has an easement over various parts of KPC’s property,
14 including part of the property known as the “upper lot.” Plaintiff DBP filed its initial complaint
15 in early 2016. Plaintiff DBP’s operative first amended complaint alleges that the “upper lot” has
16 been unusable since 2012, due to certain conduct of KPC’s tenant Manila Market — 4 years
17 before DBP filed its complaint in 2016. (Decl. Orr {[9-13, citing to Exh. C thereto [DBP’s FAC].)
18 However, as set forth in the Declaration of Madolyn Orr submitted herewith, information
19 elicited during the discovery process — including the deposition testimony of one of plaintiff
20 DBP’s partners Steven DeVincenzi, which deposition testimony became final over the 4'h of July
21 weekend — indicates that plaintiff DBP has been contending since 2008 that the upper lot was
22 unusable for the same reasons — 8 years before DBP filed its complaint in 2016. (Decl. Orr
23 111114—16, and Exh. D thereto [excerpt from, and exhibit to, the deposition of DBP’s partner
24 Steven DeVincenzi].)
25 If true, this would mean that DBP’s purported easement rights to the relevant portion of
Rossl, Hamcrslough.
lgginsghhlgffigga 26 the upper lot were extinguished by adverse possession in 2013 or earlier, providing an
53..“3‘0233
(41581333332352 27
Fax (408) 261—4292
28
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EX PARTE APPLICATION FOR LEAVE TO FILE AMENDED ANSWER 2
affirmative defense to plaintiff DBP’s causes of action.1 KPC’s proposed amendment to its
Answer seeks to assert this affirmative defense.
III. ESPECIALLY IN LIGHT OF THE LIBERAL POLICY OF ALLOWING
PLEADING AMENDMENTS, AND THE POLICY IN FAVOR OF
ADJUDICATING CASES ON THE MERITS, AMENDING THE ANSWER TO
ADD ONE AFFIRMATIVE DEFENSE IS APPROPRIATE HERE
The court, in its discretion, may allow an amendment to any pleading in the furtherance
of justice and on such terms as may be proper. C.C.P. § 473(a), 576. Amendment may be
allowed by the court at any time before, or even after the commencement of trial. C.C.P. § 576.
This “statutory provision giving the courts the power to permit amendments in
furtherance of justice has received a very liberal interpretation by the courts of this state.”
10
Klopstock v. Superior Court (1941) 17 Cal.2d l3, l9; Fogel v. Farmers Group, Inc. (2008) 160
ll
Cal.App.4th 1403, 1423 (“there is a policy of great liberality in permitting amendments to the
12
pleadings at any stage of the proceeding”); Simons v. Kern County (1965) 234 Cal.App.2d 362,
13
367 (“It is the general rule that amendments to pleadings should be liberally allowed”).
14
The policy encourages “resolution of actions on the merits in furtherance of substantial
15
justice between the parties.” (Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 352.)
16
The proposed Amended Answer submitted herewith will further justice by permitting the parties
17
to present in one action all of the facts necessary for the trier of fact to make a proper
18
determination. If defendant‘KPC is prevented from filing the proposed Amended Answer, it may
19
be deprived of the opportunity to present a meritorious defense that may well dispose of most of
20
the action. Proceeding without that defense would create a legal fiction, in that plaintiff DBP
21
would be able to assert that defendants’ conduct was somehow a wrongful imposition on plaintiff
22
DBP’s purported easement rights, and obtain an injunction regarding same; when in fact the
23
alleged conduct regarding the relevant portion of the upper lot could not have been wrongful,
24
25
Rnxsi. Hamcrslnugh.
1
See, e.g., Glatts V. Henson (1948) 31 Cal.2d 368, 370-371 (“It is well settled that an easement, regardless of
Reischl & Chuck
1960 The Alameda
26 whether it was created by grant or use, may be extinguished by the owner of the servient tenement upon which
Suile 200
San Jose. CA the easement is a burden, by adverse possession thereof by the servient tenement owner for the required statutory
9Sl26-1493
(408) 26 | .4252
27 period. Perhaps more accurately stated an easement may be extinguished by the user of the servient tenement in a
Fax (408) MI «1292
manner adverse to the exercise of the easement, for the period required to give title to land by adverse possession”);
28 Marangi v. Domenici (1958) 161 Cal.App.2d 552, and cases cited therein (use by tenant is sufficient to establish
adverse possession by tenant’s landlord); Civ. Code $325 (the statutory period for adverse possession is 5 years).
EX PARTE APPLICATION FOR LEAVE TO FILE AMENDED ANSWER 3
1 because any easement rights plaintiff DBP may have had to the area at issue were terminated
2 long before the alleged wrongful conduct supposedly occurred. If such conduct is not wrongful
3 (because plaintiff DBP does not have any remaining property rights to be interfered with), then
4 the injunctive relief that plaintiff DBP seeks is moot.2 (See, Decl. Orr 1113-16, and exhibits cited
5 therein.)
6 A court is rarely justified in refusing a party leave to amend so that that party may
7 properly present the case. (Redevelopment Agency v. Herrold (1978) 86 Cal.App.3d 1024, 1031.)
8 Indeed, it is an abuse of discretion to deny a motion to amend when the refusal deprives a party
\0 of the right to properly assert a meritorious defense, if granting leave will not prejudice opposing
10 party. (Id ; Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) Particularly since the
11 proposed amendment to KPC’s Answer is based on plaintiff DBP’s own assertions (see, e. g.,
12 Decl. Orr 1113-16, Exh. D), DBP cannot reasonably argue that it will be prejudiced in any way by
13 the assertion of the proposed affirmative defense.3 Indeed, DBP will not suffer any prejudice if
14 KPC is granted leave to file the proposed Amended Answer.
15 If an amendment is appropriate, the trial court should permit the amendment, even if
16 doing so Will necessitate continuing the trial, and even if the matter is a fast track matter. (Honig
17 v. Financial Corp. ofAmerica (1992) 2 Cal.App.4th 960, 967.) Here, KPC seeks to amend its
18 Answer to add only one additional affirmative defense, which would not necessitate continuing
19 the trial of this matter. However, because the discovery cutoff in this case is mid-October 2017,
20 KPC is seeking leave to amend ex parte in order to give all counsel sufficient time to conduct
21
22 2
If
there is no reasonable probability that the complained-of harm will recur, an injunction is not appropriate. (See,
e.g., Dawson v. East Side Union High School Dist. (6th Dist. 1994) 28 Cal.App.4th 998, 1040 [reversing injunction:
23 if“there is no reasonable probability that past acts complained of will recur, injunctive relief will be denied.
Injunctive power is not used as punishment for past acts”].)
24
To the extent DBP contends it has arguments against the defense to be added, the time for DBP to raise those
3
25 arguments is not in opposition to this ex parte application: instead, the proper time to raise such arguments would be
Rossi, Humerslough. on demurrer to the newly amended answer, motion for judgment on the pleadings, etc. Consistent with a liberal
l§::?lie&Al;}ihl:§a
26 amendment policy, the law discourages the denial of leave to amend as a vehicle for judging the legal merits of
5.5..“3L2202A proposed amended pleadings. (See, Weil & Brown, California Practice Guide: Civil Procedure Before Trial (2014
(3,212,219.35. 27 ed.), section 6:644.) That is true “even if the proposed legal theory is a novel one.” (Kittredge Sports Co. v.
F““‘°8’2""mz
Superior Court (1989) 213 Cal.App.3d 1045, 1048.) In such a case, “the preferable practice would be to permit the
28 amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or
other appropriate proceedings.” (Id)
4
EX PARTE APPLICATION FOR LEAVE TO FILE AMENDED ANSWER
1 discovery regarding this new affirmative defense if they feel it is necessary to do so.
2 “The policy favoring amendment is so strong that it is a rare case in which denial of leave
3 to amend can be justified.” (Howard v. County of San Diego (2010) 184 Ca1.App.4th 1422, 1428.
4 The small change that defendant KPC seeks leave to make via its proposed Amended Answer is
5 justified — denying KPC leave to amend would not be justified.
6 IV. CONCLUSION
7 For the reasons set forth above, and in the Declaration of Madolyn Orr submitted
8 herewith, Defendant KPC respectfully requests that the Court grant it leave to file the proposed
9 Amended Answer attached hereto as Exhibit A.
10
11 Dated: Julv 26. 2017 ROSSI. HAMERSLOUGH. REISCHL & CHUCK
1: at {a WWW/C622
RONALD R. ROSSI
14 MADOLYN D. ORR
Attorneys for DEFENDANT/CROSS-
15 COMPLAINANT& Cross-Complainant
KING PLAZA CENTER. LLC
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Rossi. Hnmcrslnugh.
Reischl & Chuck
I960 The Alameda
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Sum: 200
San Jose. CA
95126-1493
(408) 261-4252
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Fax (408) 261-4292
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EX PARTE APPLICATION FOR LEAVE TO FILE AMENDED ANSWER 5
620A
1 RONALD R. ROSSI (SBN 43067)
MADOLYN D. ORR (SBN 280608)
2 ROSSI, HAMERSLOUGH, REISCHL & CHUCK
1960 The Alameda, Suite 200
3 San Jose, CA 95126—1493
Tel: (408) 261-4252
4 Fax: (408) 261-4292
5 Attorneys for Defendant
KING PLAZA CENTER, LLC
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
7
FOR THE COUNTY OF SAN MATEO
8
DBP INVESTMENTS, a California General Case No.: CIV53 8897
9 Partnership,
AMENDED
10 Plaintiff, ANSWER TO FIRST AMENDED
COMPLAINT FOR INJUNCTIVE
11 vs. RELIEF
12 KING PLAZA CENTER, LLC, a Delaware Action Filed: June I, 2016
Limited Liability Company [erroneously sued as Trial Date: TBD
13 KING PLAZA CENTER, LLC, a California
limited liability company], and DOES 1 through
14 10,
15 Defendants.
16
Defendant KING PLAZA CENTER, LLC generally denies each and every allegation of
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Plaintiff s First Amended Complaint for Injunctive Relief (“Complaint”).
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Defendant states the following separate affirmative defenses to Plaintiff’s Complaint:
19
AFFIRMATIVE DEFENSES
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1. Defendant denies each and every allegation of the Complaint and in particular
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denies that Plaintiff was damaged in the sums alleged or in any sum as a result of any act or
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omission of Defendant.
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2. The Complaint and each cause of action fail to allege facts sufficient to constitute
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a cause of action.
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MWm 3. The Complaint and each cause of action are barred by the doctrine of estoppel.
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12263;} 4. The Complaint and each cause of action are barred by the application of the
“$3355???”
doctrine of waiver to the acts, conduct, and representations by Plaintiff.
::
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(AMENDED) ANSWER TO FIRST AMENDED COMPLAINT l
1 5. Plaintiff is guilty of unclean hands, which bars its right of recovery against
2 Defendant:
3 6. The Complaint and each cause of action are barred by the doctrine of laches.
4 7. The Complaint and each cause of action are barred by application of the doctrine
5 of unjust enrichment to the acts, conduct, and representations by Plaintiff.
6 8. The Complaint and each cause of action are barred by application of the doctrine
7 of assumption of risk to the acts, conduct, and representations by Plaintiff.
8 9. Plaintiff failed to mitigate its damages, if any, and any recovery awarded should
9 be reduced by the amount of damages that could reasonably have been avoided by such actions.
10 10. Any right of recovery against Defendant, which Defendant denies, is barred, as
11 Plaintiff acted in part delicto.
12 11. The Complaint and each cause of action are barred by § 337 et seq. of the Code of
13 Civil Procedure.
14 12. The Complaint and each cause of action are barred by the application of the
15 doctrine of uncertainty and indefiniteness of the agreement.
16 13. The Complaint and each cause of action are barred by the failure of certain
17 contingencies or conditions precedent.
18 14. Plaintiff has directed, ordered, approved, and/or ratified Defendant’s conduct, and
19 Plaintiff is, therefore, estopped from asserting any claims based thereon.
20 15. If any wrongful conduct was engaged in by other defendants, cross—defendants, or
21 third parties, this answering Defendant is informed and believes and thereupon alleges that
22 Plaintiff directly or indirectly acted in concert with other defendants, cross-defendants, or third
23 parties or knowingly ratified or approved such conduct and is therefore precluded from any
24 recovery under the doctrine of in parz‘ delicto.
25 16. The Complaint is barred by the statute of limitations, including but not limited to
Rom, Hnmcrslough,
lggiflmfihmugga 26 Code of CM] Procedure §339(1).
Sui|c 200
Sun Jns’c, CA
I"
9 3
(4012222173252 27
Fax (408) 261-4292
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(AMENDED) ANSWER TO FIRST AMENDED COMPLAINT 2
17. At all relevant times, this answering Defendant acted independently and not in
association or concert with or as agent or servant of any other defendant, including defendants
sued herein under the fictitious name of their employees or agents.
18. By the terms of the contract, as alleged in the Complaint, this answering
Defendant is not responsible for the conditions, covenants, and promises thereunder.
19. Defendant alleges that Plaintiff violated the material covenants and conditions of
the agreement, including the covenant of good faith and fair dealing, thereby terminating and
extinguishing the duties allegedly owed or reducing or rebating the amount of damage to which
Plaintiff is entitled, if any.
10 20. This answering Defendant is informed and believes, and upon such information
11 and belief alleges, that Plaintiff’ s Complaint and each alleged cause of action therein are
12 absolutely barred by the failure of Plaintiff to give this answering Defendant reasonable notice of
13 the alleged breached of contract for the wrongful conduct as alleged in the Complaint.
14 21. The harm allegedly sustained by Plaintiff was either wholly or in part negligently
15 caused by and/or the fault of persons, firms, corporations, and/or entities other than this
16 answering Defendant, and said negligence and/or fault comparatively reduces the percentage of
17 negligence and/or fault, if any, by this answering Defendant.
18 22. To the extent that Plaintiff’s causes of action rely upon the existence of an express
19 easement over portions of Defendant’s real property, any such easement was extinguished as to
20 the following portion of Defendant’s real property by adverse possession: as to the upper lot
21 abutting the intersection of King Drive and Callan Boulevard, the portion of same which lies
22 within forty (40) feet of the elevated northern edge of said upper lot and/or the ramp which lies at
23 the eastern edge of said upper lot.
24 ///
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Rossi. Hnmcrslnugh.
Relschl 54 Chuck
I960 The Alameda
26 ///
Suilc 200
San Joxe. CA
WI 26-] 493
(-103) XII-4252 27 ///
Fax (408) 261-4292
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(AMENDED) ANSWER TO FIRST AMENDED COMPLAINT 3
1 WHEREFORE, Defendant prays that Plaintiff take nothing by its Complaint; that
2 Defendant be awarded costs of suit including reasonable attorney’s fees; and for such other relief
3 as the Court deems just and proper.
4 Dated: , 2017 ROSSI, HAMERSLOUGH, REISCHL & CHUCK
6
BY:
7 RONALD R. ROSSI
MADOLYN D. ORR
8 RONALD R. ROSSI
Attorneys for Defendant
9 KING PLAZA CENTER. LLC
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(AMENDED) ANSWER TO FIRST AMENDED COMPLAINT
Preview
1 2 RONALD R. ROSSI (SBN 43067) MADOLYN D. ORR (SBN 280608) ROSSI, HAMERSLOUGH, REISCHL & CHUCK l F L EORTY SAN MATEO Q (\ 1960 The Alameda, Suite 200 09 VA 3 San Jose, CA 95126-1493 V Tel: (408) 261-4252 4 Fax: (408) 261-4292 DEPUTY CLERK 5 Attorneys for Defendant & Cross-Complainant KING PLAZA CENTER, LLC 6 SUPERIOR COURT OF THE STATE OF CALIFORN / 7 FOR THE COUNTY OF SAN MATEO 8 48 10 9 DBP INVESTMENTS, Partnership, a California General Case No.: CIV53 897 EX PARTE APPLICA ION-FOR // Plaintiff, LEAVE TO FILE AMENDED ANSWER 11 vs. Date: July 26, 2017 12 Time: 2:00pm. KING PLAZA CENTER, LLC, a Delaware Dept: Law & Motion 13 Limited Liability Company, BUA-QUACH, an individual, SOVAN LIEN, an individual, 14 DONG VUONG, an 1nd1v1dual, THANH LAI, Action Filed: June 1, 2016 and DOES 1 through 10’ Trial Date: November 13, 2017 15 Defendants. 16 KING PLAZA CENTER, LLC, a Delaware 17 Limited Liability Company, \ 1 8 Cross-Complainant, 1 9 vs. 20 DBP INVESTMENTS, a California General Partnership, and ROES 1 through 10, 21 Cross-Defendant. 22 I ClV538897 I EPA 5 23 2. 5:35:38 Application 24 1'l/llII/IIll/IIII/Il/I/II/I/III/I/Ill/I A 25 [hulk/all"? 26 By way of this Application, Defendant / Cross-Complainant KING PLAZA CENTER, Suilc 200 San Jose. CA . . (43152223332 27 LLC, a Delaware limited liability company (“KPC”), seeks an order allowmg the fihng of the Fax (408) 2“ 4292 28 proposed Amended Answer attached hereto as Exhibit A. EX PARTE APPLICATION FOR LEAVE TO FILE AMENDED ANSWER , l l I. NOTICE OF THIS EX PARTE APPLICATION 2 All counsel were given sufficient notice of this ex parte application. (Decl. Orr 113-7.) A11 U.) counsel were first asked whether they were willing to stipulate to the filing of the proposed Amended Answer. (Id.) Counsel for the other defendants indicated that he would stipulate to 5 agree that the proposed Amended Answer could be filed. (Id. 116.) Counsel for plaintiff DBP 6 Investments (“DBP”) responded that he would not stipulate, but he did not say why not. (Id. 117.) 7 Counsel for plaintiff DBP indicated that he would appear to oppose. (Id.) 8 II. THE PROPOSED AMENDMENT 9 Defendant KPC seeks leave to amend its Answer to add one affirmative defense. The 10 affirmative defense to be added is affirmative defense number “22” on the proposed 11 Amended Answer attached hereto as Exhibit A. KPC does not propose to delete any text 12 from its existing Answer. (Decl. Orr 118; Cal. Rule of Court 3.1324(a).) 13 Plaintiff DBP asserts that it has an easement over various parts of KPC’s property, 14 including part of the property known as the “upper lot.” Plaintiff DBP filed its initial complaint 15 in early 2016. Plaintiff DBP’s operative first amended complaint alleges that the “upper lot” has 16 been unusable since 2012, due to certain conduct of KPC’s tenant Manila Market — 4 years 17 before DBP filed its complaint in 2016. (Decl. Orr {[9-13, citing to Exh. C thereto [DBP’s FAC].) 18 However, as set forth in the Declaration of Madolyn Orr submitted herewith, information 19 elicited during the discovery process — including the deposition testimony of one of plaintiff 20 DBP’s partners Steven DeVincenzi, which deposition testimony became final over the 4'h of July 21 weekend — indicates that plaintiff DBP has been contending since 2008 that the upper lot was 22 unusable for the same reasons — 8 years before DBP filed its complaint in 2016. (Decl. Orr 23 111114—16, and Exh. D thereto [excerpt from, and exhibit to, the deposition of DBP’s partner 24 Steven DeVincenzi].) 25 If true, this would mean that DBP’s purported easement rights to the relevant portion of Rossl, Hamcrslough. lgginsghhlgffigga 26 the upper lot were extinguished by adverse possession in 2013 or earlier, providing an 53..“3‘0233 (41581333332352 27 Fax (408) 261—4292 28 ‘ EX PARTE APPLICATION FOR LEAVE TO FILE AMENDED ANSWER 2 affirmative defense to plaintiff DBP’s causes of action.1 KPC’s proposed amendment to its Answer seeks to assert this affirmative defense. III. ESPECIALLY IN LIGHT OF THE LIBERAL POLICY OF ALLOWING PLEADING AMENDMENTS, AND THE POLICY IN FAVOR OF ADJUDICATING CASES ON THE MERITS, AMENDING THE ANSWER TO ADD ONE AFFIRMATIVE DEFENSE IS APPROPRIATE HERE The court, in its discretion, may allow an amendment to any pleading in the furtherance of justice and on such terms as may be proper. C.C.P. § 473(a), 576. Amendment may be allowed by the court at any time before, or even after the commencement of trial. C.C.P. § 576. This “statutory provision giving the courts the power to permit amendments in furtherance of justice has received a very liberal interpretation by the courts of this state.” 10 Klopstock v. Superior Court (1941) 17 Cal.2d l3, l9; Fogel v. Farmers Group, Inc. (2008) 160 ll Cal.App.4th 1403, 1423 (“there is a policy of great liberality in permitting amendments to the 12 pleadings at any stage of the proceeding”); Simons v. Kern County (1965) 234 Cal.App.2d 362, 13 367 (“It is the general rule that amendments to pleadings should be liberally allowed”). 14 The policy encourages “resolution of actions on the merits in furtherance of substantial 15 justice between the parties.” (Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 352.) 16 The proposed Amended Answer submitted herewith will further justice by permitting the parties 17 to present in one action all of the facts necessary for the trier of fact to make a proper 18 determination. If defendant‘KPC is prevented from filing the proposed Amended Answer, it may 19 be deprived of the opportunity to present a meritorious defense that may well dispose of most of 20 the action. Proceeding without that defense would create a legal fiction, in that plaintiff DBP 21 would be able to assert that defendants’ conduct was somehow a wrongful imposition on plaintiff 22 DBP’s purported easement rights, and obtain an injunction regarding same; when in fact the 23 alleged conduct regarding the relevant portion of the upper lot could not have been wrongful, 24 25 Rnxsi. Hamcrslnugh. 1 See, e.g., Glatts V. Henson (1948) 31 Cal.2d 368, 370-371 (“It is well settled that an easement, regardless of Reischl & Chuck 1960 The Alameda 26 whether it was created by grant or use, may be extinguished by the owner of the servient tenement upon which Suile 200 San Jose. CA the easement is a burden, by adverse possession thereof by the servient tenement owner for the required statutory 9Sl26-1493 (408) 26 | .4252 27 period. Perhaps more accurately stated an easement may be extinguished by the user of the servient tenement in a Fax (408) MI «1292 manner adverse to the exercise of the easement, for the period required to give title to land by adverse possession”); 28 Marangi v. Domenici (1958) 161 Cal.App.2d 552, and cases cited therein (use by tenant is sufficient to establish adverse possession by tenant’s landlord); Civ. Code $325 (the statutory period for adverse possession is 5 years). EX PARTE APPLICATION FOR LEAVE TO FILE AMENDED ANSWER 3 1 because any easement rights plaintiff DBP may have had to the area at issue were terminated 2 long before the alleged wrongful conduct supposedly occurred. If such conduct is not wrongful 3 (because plaintiff DBP does not have any remaining property rights to be interfered with), then 4 the injunctive relief that plaintiff DBP seeks is moot.2 (See, Decl. Orr 1113-16, and exhibits cited 5 therein.) 6 A court is rarely justified in refusing a party leave to amend so that that party may 7 properly present the case. (Redevelopment Agency v. Herrold (1978) 86 Cal.App.3d 1024, 1031.) 8 Indeed, it is an abuse of discretion to deny a motion to amend when the refusal deprives a party \0 of the right to properly assert a meritorious defense, if granting leave will not prejudice opposing 10 party. (Id ; Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) Particularly since the 11 proposed amendment to KPC’s Answer is based on plaintiff DBP’s own assertions (see, e. g., 12 Decl. Orr 1113-16, Exh. D), DBP cannot reasonably argue that it will be prejudiced in any way by 13 the assertion of the proposed affirmative defense.3 Indeed, DBP will not suffer any prejudice if 14 KPC is granted leave to file the proposed Amended Answer. 15 If an amendment is appropriate, the trial court should permit the amendment, even if 16 doing so Will necessitate continuing the trial, and even if the matter is a fast track matter. (Honig 17 v. Financial Corp. ofAmerica (1992) 2 Cal.App.4th 960, 967.) Here, KPC seeks to amend its 18 Answer to add only one additional affirmative defense, which would not necessitate continuing 19 the trial of this matter. However, because the discovery cutoff in this case is mid-October 2017, 20 KPC is seeking leave to amend ex parte in order to give all counsel sufficient time to conduct 21 22 2 If there is no reasonable probability that the complained-of harm will recur, an injunction is not appropriate. (See, e.g., Dawson v. East Side Union High School Dist. (6th Dist. 1994) 28 Cal.App.4th 998, 1040 [reversing injunction: 23 if“there is no reasonable probability that past acts complained of will recur, injunctive relief will be denied. Injunctive power is not used as punishment for past acts”].) 24 To the extent DBP contends it has arguments against the defense to be added, the time for DBP to raise those 3 25 arguments is not in opposition to this ex parte application: instead, the proper time to raise such arguments would be Rossi, Humerslough. on demurrer to the newly amended answer, motion for judgment on the pleadings, etc. Consistent with a liberal l§::?lie&Al;}ihl:§a 26 amendment policy, the law discourages the denial of leave to amend as a vehicle for judging the legal merits of 5.5..“3L2202A proposed amended pleadings. (See, Weil & Brown, California Practice Guide: Civil Procedure Before Trial (2014 (3,212,219.35. 27 ed.), section 6:644.) That is true “even if the proposed legal theory is a novel one.” (Kittredge Sports Co. v. F““‘°8’2""mz Superior Court (1989) 213 Cal.App.3d 1045, 1048.) In such a case, “the preferable practice would be to permit the 28 amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (Id) 4 EX PARTE APPLICATION FOR LEAVE TO FILE AMENDED ANSWER 1 discovery regarding this new affirmative defense if they feel it is necessary to do so. 2 “The policy favoring amendment is so strong that it is a rare case in which denial of leave 3 to amend can be justified.” (Howard v. County of San Diego (2010) 184 Ca1.App.4th 1422, 1428. 4 The small change that defendant KPC seeks leave to make via its proposed Amended Answer is 5 justified — denying KPC leave to amend would not be justified. 6 IV. CONCLUSION 7 For the reasons set forth above, and in the Declaration of Madolyn Orr submitted 8 herewith, Defendant KPC respectfully requests that the Court grant it leave to file the proposed 9 Amended Answer attached hereto as Exhibit A. 10 11 Dated: Julv 26. 2017 ROSSI. HAMERSLOUGH. REISCHL & CHUCK 1: at {a WWW/C622 RONALD R. ROSSI 14 MADOLYN D. ORR Attorneys for DEFENDANT/CROSS- 15 COMPLAINANT& Cross-Complainant KING PLAZA CENTER. LLC 1 6 17 18 19 20 21 22 23 24 25 Rossi. Hnmcrslnugh. Reischl & Chuck I960 The Alameda 26 Sum: 200 San Jose. CA 95126-1493 (408) 261-4252 27 Fax (408) 261-4292 28 EX PARTE APPLICATION FOR LEAVE TO FILE AMENDED ANSWER 5 620A 1 RONALD R. ROSSI (SBN 43067) MADOLYN D. ORR (SBN 280608) 2 ROSSI, HAMERSLOUGH, REISCHL & CHUCK 1960 The Alameda, Suite 200 3 San Jose, CA 95126—1493 Tel: (408) 261-4252 4 Fax: (408) 261-4292 5 Attorneys for Defendant KING PLAZA CENTER, LLC 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 FOR THE COUNTY OF SAN MATEO 8 DBP INVESTMENTS, a California General Case No.: CIV53 8897 9 Partnership, AMENDED 10 Plaintiff, ANSWER TO FIRST AMENDED COMPLAINT FOR INJUNCTIVE 11 vs. RELIEF 12 KING PLAZA CENTER, LLC, a Delaware Action Filed: June I, 2016 Limited Liability Company [erroneously sued as Trial Date: TBD 13 KING PLAZA CENTER, LLC, a California limited liability company], and DOES 1 through 14 10, 15 Defendants. 16 Defendant KING PLAZA CENTER, LLC generally denies each and every allegation of 17 Plaintiff s First Amended Complaint for Injunctive Relief (“Complaint”). 18 Defendant states the following separate affirmative defenses to Plaintiff’s Complaint: 19 AFFIRMATIVE DEFENSES 20 1. Defendant denies each and every allegation of the Complaint and in particular 21 denies that Plaintiff was damaged in the sums alleged or in any sum as a result of any act or 22 omission of Defendant. 23 2. The Complaint and each cause of action fail to allege facts sufficient to constitute 24 a cause of action. 25 MWm 3. The Complaint and each cause of action are barred by the doctrine of estoppel. 26 12263;} 4. The Complaint and each cause of action are barred by the application of the “$3355???” doctrine of waiver to the acts, conduct, and representations by Plaintiff. :: ‘ (AMENDED) ANSWER TO FIRST AMENDED COMPLAINT l 1 5. Plaintiff is guilty of unclean hands, which bars its right of recovery against 2 Defendant: 3 6. The Complaint and each cause of action are barred by the doctrine of laches. 4 7. The Complaint and each cause of action are barred by application of the doctrine 5 of unjust enrichment to the acts, conduct, and representations by Plaintiff. 6 8. The Complaint and each cause of action are barred by application of the doctrine 7 of assumption of risk to the acts, conduct, and representations by Plaintiff. 8 9. Plaintiff failed to mitigate its damages, if any, and any recovery awarded should 9 be reduced by the amount of damages that could reasonably have been avoided by such actions. 10 10. Any right of recovery against Defendant, which Defendant denies, is barred, as 11 Plaintiff acted in part delicto. 12 11. The Complaint and each cause of action are barred by § 337 et seq. of the Code of 13 Civil Procedure. 14 12. The Complaint and each cause of action are barred by the application of the 15 doctrine of uncertainty and indefiniteness of the agreement. 16 13. The Complaint and each cause of action are barred by the failure of certain 17 contingencies or conditions precedent. 18 14. Plaintiff has directed, ordered, approved, and/or ratified Defendant’s conduct, and 19 Plaintiff is, therefore, estopped from asserting any claims based thereon. 20 15. If any wrongful conduct was engaged in by other defendants, cross—defendants, or 21 third parties, this answering Defendant is informed and believes and thereupon alleges that 22 Plaintiff directly or indirectly acted in concert with other defendants, cross-defendants, or third 23 parties or knowingly ratified or approved such conduct and is therefore precluded from any 24 recovery under the doctrine of in parz‘ delicto. 25 16. The Complaint is barred by the statute of limitations, including but not limited to Rom, Hnmcrslough, lggiflmfihmugga 26 Code of CM] Procedure §339(1). Sui|c 200 Sun Jns’c, CA I" 9 3 (4012222173252 27 Fax (408) 261-4292 28 (AMENDED) ANSWER TO FIRST AMENDED COMPLAINT 2 17. At all relevant times, this answering Defendant acted independently and not in association or concert with or as agent or servant of any other defendant, including defendants sued herein under the fictitious name of their employees or agents. 18. By the terms of the contract, as alleged in the Complaint, this answering Defendant is not responsible for the conditions, covenants, and promises thereunder. 19. Defendant alleges that Plaintiff violated the material covenants and conditions of the agreement, including the covenant of good faith and fair dealing, thereby terminating and extinguishing the duties allegedly owed or reducing or rebating the amount of damage to which Plaintiff is entitled, if any. 10 20. This answering Defendant is informed and believes, and upon such information 11 and belief alleges, that Plaintiff’ s Complaint and each alleged cause of action therein are 12 absolutely barred by the failure of Plaintiff to give this answering Defendant reasonable notice of 13 the alleged breached of contract for the wrongful conduct as alleged in the Complaint. 14 21. The harm allegedly sustained by Plaintiff was either wholly or in part negligently 15 caused by and/or the fault of persons, firms, corporations, and/or entities other than this 16 answering Defendant, and said negligence and/or fault comparatively reduces the percentage of 17 negligence and/or fault, if any, by this answering Defendant. 18 22. To the extent that Plaintiff’s causes of action rely upon the existence of an express 19 easement over portions of Defendant’s real property, any such easement was extinguished as to 20 the following portion of Defendant’s real property by adverse possession: as to the upper lot 21 abutting the intersection of King Drive and Callan Boulevard, the portion of same which lies 22 within forty (40) feet of the elevated northern edge of said upper lot and/or the ramp which lies at 23 the eastern edge of said upper lot. 24 /// 25 /// Rossi. Hnmcrslnugh. Relschl 54 Chuck I960 The Alameda 26 /// Suilc 200 San Joxe. CA WI 26-] 493 (-103) XII-4252 27 /// Fax (408) 261-4292 28 /// (AMENDED) ANSWER TO FIRST AMENDED COMPLAINT 3 1 WHEREFORE, Defendant prays that Plaintiff take nothing by its Complaint; that 2 Defendant be awarded costs of suit including reasonable attorney’s fees; and for such other relief 3 as the Court deems just and proper. 4 Dated: , 2017 ROSSI, HAMERSLOUGH, REISCHL & CHUCK 6 BY: 7 RONALD R. ROSSI MADOLYN D. ORR 8 RONALD R. ROSSI Attorneys for Defendant 9 KING PLAZA CENTER. LLC 10 S:\CL\R\R161 13\PLDGS\F AC by DBP & Answers thereto\AMENDED Answer to FAC (draft 06-28-17).docx :; 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Suilc 200 San Jose. CA 951264493 (408) 261-4252 27 Fax (-108) Zfil 4292 28 4 (AMENDED) ANSWER TO FIRST AMENDED COMPLAINT