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Dennis M. Wilson (State Bar No. 43877l
Wilson Law Firm, A Professional Corporation
50 Iron Point Circle, Suite n5
Folsom, California 95630 2/3/2021
Telephone: (916) 608-8891
Facsimile: (916l 608-8892
Attorneys for HK Deluxe, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF BUTTE
10
CPI CHICO BENEFICIARY LLC and TA
12 CHICO LLC,
Defendant HK Deluxe, LLC's, Reply to
13 Plaintiffs, Opposition to Demurrer to Amended
vs.
Complaint
14
15 HK DELUXE, LLC, Dept: 1
Date: February 10, 2021
16 Defendant. Trme: 9:00
Judge: Hon. Tamara Mosbarger
17
18 And Related Cross-Action
19
20 PLAINTIFFS'NLY NEW ARGUMENT IS THEY ARE ENTITLED TO
ADDITIONAL DECLARATORY RELIEF.
21
1. The rest of Plaintiffs'rguments are covered in the demurrer to the
22
Amended Complaint.
23
All of Plaintiffs'auses of action still fail for the same reasons set forth in
24
Defendant's Memorandum of Points and Authorities in Support of the Demurrer and
25
the Motion to Strike. All of the causes of action, including the fourth cause of action for
26
Declaratory Relief that incorporates paragraphs 1 through 68, are based on the
27
allegation that Defendant's single refusal to consent to the request for termination of the
28
Defendant's Reply to Opposition to Demurrer to Amended Complaint
Sublease under section 4 of the CND Agreement was unreasonable. This Reply will
therefore cover a few key points at issue in Plaintiffs'pposition, but the Demurrer
provides responses to the other issues raised in the Opposition.
2. Plaintiffs'ow seek declaratory relief that defendant has no right to
prevent PlaintiAs and Walgreen from terminating the sublease.
Plaintiffs'arlier argument was that defendant could not unreasonably withhold
consent. Plaintiffs now claim that defendant has no right to prohibit the termination of
the Sublease. This new position is contradicted by the exhibits attached to the Amended
Complain, which are the same exhibits attached to the Complaint.
10 THE GOVERNING DOCUMENTS HAVE SPECIFIC CLAUSES THAT
CONTROL TERMINATION OF THE SUBLEASE
12 Defendant itemized and summarized the relevant clauses of the governing
13 documents in the Motion for Judgment on the Pleadings. Defendant has also requested
14 judicial notice of that motion, including the excerpts from the governing documents.
15 The clauses relevant to the new declaratory relief request are the following:
16 Article 1.6 of the Ground Lease.
17 This section states that the term of the Ground Lease is twenty-five years with
18 five-year renewal periods, which are automatically extended without notice unless the
19 tenant terminates the Ground Lease per Article 3.1 of the Ground Lease. (Ex. D;
20 Complaint, Ex. A, Ground Lease p. 1,Art. 1.6.)
21 Article 3.1 of the Ground Lease.
22 This section gives the Plaintiffs the right and option, at Plaintiffs'lection, to
terminate the Ground Lease effective as of the last day of the three hundredth (300th)
24 full calendar month (25 years) following the Sublease Date and every five years
25 thereafter until the last day of the 45th year. (Ex. E; Complaint, Ex. A, Ground Lease, p.
26 3, Art. 3.1.)
27 Article 8.2 of the Ground Lease.
28 This section allows the Plaintiffs and their predecessors to assign their interest in
Defendant's Reply to Opposition to Demurrer to Amended Complaint
the Ground Lease, but it does not relieve the Plaintiffs of liability unless a sublease is in
effect with a sublessee having a net worth of $ 50,000,000 or greater, or the assignee ha
that net worth and assumes the obligations of lessee. (Ex. G; Complaint, Ex. A, Ground
Lease, p. 6, Art. 8.2.) There is no such sublease in place or proposed by Plaintiffs.
Consent and Non-Disturbance Agreement — Section 1.
Defendant consents to the subleasing of the Leased premises to Walgreens under
the terms and conditions more particularly set forth in the Sublease. (Ex. J; Complaint,
Ex. A, Exhibit D to Ground Lease, p. 24-27, ri1.)
Consent and Non-Disturbance Agreement - Section 6.
10 This section states that if there is a conflict between the terms of the Ground
Lease and the Sublease, then the terms of the Ground Lease prevail and control with
12 respect to the rights and obligations of the plaintiffs to the defendant. (Ex. L; Complaint,
13 Ex. A, CND Agreement, p. 25, 5 6.)
14 Sublease —
Article 1.
15 This article subleases the property from Plaintiffs to Walgreen Co. for a fifty-year
16 term and authorizes the term to be adjusted according to Article 3 of the Sublease and
17 subject to prior termination as provided in the Sublease. (Ex. M; Complaint, Ex. B,
Sublease, p. 1,Art. 1.)
19 Sublease — Article 2 (a).
20 This article specifies the amount of Ground Rent to be paid to the Ground
21 Lessor. (Ex. N; Complaint, Ex. B; Sublease, p. 2, Art. 2 (b).)
22 Sublease - Article 3 (d).
23 This article allows Walgreen Co. to terminate the sublease on the three
24 hundredth month of the lease (twenty-five years), and every five years thereafter until
25 the fifty-year term expires. (Ex. 0; Complaint, Ex. B, Sublease, p. 4-5, Art. 3(d).) Thus,
26 the Sublease does not provide for renewals of the sublease; rather, it contains specific
27 provisions for termination on specified dates.
28
Defendant's Reply to Opposition to Demurrer to Amended Complaint
Sublease - Article 13 (e).
This article prohibits releasing Walgreen Co. from liability unless there is an
assignment of the Sublease or a subletting of the leased premises. (Ex. P; Complaint, Ex.
B, Sublease p. 20-21, Art. 13 (e).)
In addition, Article 13 (a) and (b) authorize termination under specific
circumstances that would still not relieve Walgreen Co from liability.
Plaintiffs'uties and obligations to the defendant (Ground Lessor) are fully
detailed throughout the Ground Lease, Sublease, and CND Agreement (collectively
herein referred to as "governing documents"). The governing documents set out terms
10 that not only make defendant a third-party beneficiary with rights arising from the
Sublease, but they also clearly provide defendant Ground Lessor with specific rights
12 when it comes to the termination and or modification of the Sublease.
When read together, the clauses provide for termination of the lease only at
14 specific times or under specific conditions. The clauses also do not release Walgreen for
15 liability. The exhibits attached to the Amended Complaint contradict
16
plaintiffs'ontentions.
17 PLAINTIFFS HAVE NO BASIS ON WHICH TO SEEK DECLARATORY
18 RELIEF IN THE FOURTH CAUSE OF ACTION,
19 Plaintiffs state in their Oppositions that they agree to strike their causes of action
20 for breach of contract and intentional interference and are now only seeking declaratory
21 relief under the fourth cause of action. But they incorporate the allegations in all the
22 preceding into the fourth cause of action. They incorporated assertions in the Amended
23 Complaint that they are not seeking termination, but are seeking modification and the
24 right to receive accelerated rent instead of a termination fee. Plaintiffs then state they
25 seek a declaration that "Defendant has no right, under the Lease, the Sublease, the
26 CDNA, or any other governing documents, to prohibit the termination of the Sublease."
27 (Amended Complaint, p. 9, 0 70.) In its ruling on the Motion for Judgment on the
28 Pleadings, the Court determined that defendant Ground Lessor could reasonably or
Defendant's Reply to Opposition to Demurrer to Amended Complaint
unreasonably choose to consent to the request for termination because section 4 of the
CND Agreement only applies to material amendments of the sublease, not total
termination. (Order, January 1, 2020.) The court cannot rule that "defendant has no
right...to prohibit the termination of the Sublease" because 1) the plaintiffs'ew
interpretation of the governing documents is contrary to the court's ruling, and 2)
plaintiffs have not stated facts sufficient to constitute a cause of action for such
declaratory relief. (Civ. Proc. 430.10(e).) Thus, the alleged new theory is really the old
theory reworked.
Furthermore, plaintiffs cause of action for declaratory relief has no basis if the
10 "lion's share" of the Amended Complaint is moot, as plaintiffs claim in their opposition.
This declaratory relief claim fails because it is "wholly derivative" of the other failed
12 claims that plaintiffs concede in their opposition, (Smyth v. Berman (2019) 31 Cal. App.
13 5i" 183, 191-192.) The fourth cause of action incorporates all the paragraphs in the
14 previous causes of action. In addition, the only wrongful act alleged in the Amended
15 Complaint is that Defendant unreasonably withheld consent to plaintiffs'equest in
16 violation of section 4 of the CND Agreement that defendant's consent not be
unreasonably withheld. But defendant could unreasonably withhold consent to the
18 termination, because there is no clause requiring reasonable consent to termination, let
19 alone consent to termination.
20 THE SUBLEASE DOES NOT CONTEMPLATE THAT PLAINTIFFS MAY
21 TERMINATE THE SUBLEASE WHENEVER THEY DESIRE.
As discussed at length in the demurrer, the Ground Lease and Sublease both
provide that termination shall occur at the end of the term of 25 years. (Points and
24 Authorities in Support of Demurrer, p. 14, lines 3-11.) Plaintiffs now argue that the
25 Sublease contemplates that plaintiffs may terminate the sublease because the governing
26 documents provide the right to terminate the Sublease in the event of default or if
27 Walgreens notifies plaintiffs of their intention to sublet or assign all or a portion of the
28 premises and plaintiffs and plaintiffs disapprove of the proposed subtenant.
Defendant's Reply to Opposition to Demurrer to Amended Complaint
(Opposition to Demurrer, p. 7, lines 19-24.) Neither of the provisions that plaintiffs cite
give them the absolute and unrestricted power to terminate the Sublease at will. While
the agreement does allow for termination in the event of default, that constitutes a
breach of the agreement that provides remedies against Walgreens. The other provision
that plaintiffs rely on, Article 13(c) of the Sublease, is consistent with defendant's
position that plaintiffs can only terminate the sublease after Walgreens sublets or
assigns all or a portion of the premises. This is further supported by Article 13(e) of the
Sublease that does not permit Walgreens to be released from liability even if there is an
assignment or subletting of all or part of the lease premises. (Amended Complaint, Ex.
10 B, Sublease, Art. 13(e).)
THE MEET AND CONFER DID NOT RESOLVE THE UNDERLYING ISSUES
12 WITH THE AMENDED COMPLAINT.
While it is true that Mr. Fox stated during the meet and confer that he intended
14 to amend the complaint to narrow the issues, the major issue as to Defendant's rights
with respect to the sublease was still in dispute as is evident from plaintiffs'oints and
16 Authorities in Opposition. Mr. Wilson believed that plaintiffs could not amend
17 successfully given the language of the exhibits attached to the complaint and the parties
18 could not reach agreement. Therefore, the filing of the Demurrer and the Motion to
19 Strike was appropriate despite good faith efforts on both sides to resolve these motions.
20 THE AMENDED COMPLAINT MAY NOT BE A "SHAM," BUT THE SHAM
21 PLEADING DOCTRINE STILL APPLIES.
22 The Sham Pleading Doctrine allows the court to examine the Amended
23 Complaint in comparison with the Original Complaint to analyze whether the Amended
24 Complaint is inconsistent with the prior complaint, discards factual allegations of the
25 prior complaint, or avoids factual allegations by contradictory averments. (Ooklond
26 Raiders v. National Football League (2005) 131 Cal. App. 4th 621, 653.) This doctrine
27 shifts the burden to the moving party to explain the inconsistencies between the prior
28 pleading and the amended pleading. (Ibid.) Plaintiffs cannot avoid the defects in the
Defendant's Reply to Opposition to Demurrer to Amended Complaint
original complaint by omitting problematic or inconsistent facts in the original
complaint.
Here, the causes of action in the Amended Complaint still rely heavily on their
original allegations that Defendant breached the Lease and CND Agreement by
unreasonably withholding consent to the request for termination pursuant to section 4
of the CND Agreement. (Amended Complaint, P. 4 Ill 19-22, P. 7, 'll 50, P. 8, lI 57.)
However, as discussed in the Demurrer and the Motion to Strike, plaintiffs changed the
vocabulary in the Amended Complaint to recharacterize their request to terminate the
sublease with Walgreens as a request for a modification. They also recharacterized the
10 "termination fee" they negotiated with Walgreens as "Accelerated Rent'* to avoid the
court's ruling on the Motion for Judgment on the Pleadings. (see Amended Complaint,
12 p. 3, 118, p. 4, tl24, p.6, 0 38, p. 8, Ill 60-64.) Not only are these changes inconsistent,
13 they also contradict the original complaint, its exhibits, and they do not comply with the
14 court's ruling that a material amendment to the Sublease as specified in section 4 of the
15 CND Agreement does not include complete termination of the Sublease. Disregarding
16 and circumventing the court's ruling indicates that the Amended Complaint was not
17 filed in good faith and is indeed a sham.
i8 Plaintiffs also now claim that they do not oppose Defendant's motions with
19 respect to the first three causes of action and related allegations in the Amended
20 Complaint and that they exclusively oppose Defendant's arguments relating to the
21 fourth cause of action. (Opposition to Demurrer, p. 5, lines 1 1-13.) But plaintiffs still
22 incorporated all the allegations in the first three causes of action into the fourth cause of
23 action. In fact, plaintiffs concede that the lion's share of Defendant's demurrer and
24 motion to strike are moot. Their minor changes to vocabulary are evidently an effort to
25 rekindle their argument that their causes of action against defendant are a result of
26 defendant unreasonably withholding consent to a "modification." This avoids factual
27 allegations by contradictory averments. The court should therefore examine the
28 Original Complaint and the Amended Complaint to determine the extent that the
Defendant's Reply to Opposition to Demurrer to Amended Complaint
pleading of facts and positions in the Amended Complaint contradict facts pleaded in
the original complaint. (Ochs v. PacifiCare of California (2004) 115 Cal. App, 4th 782,
797.)
COURT MAY RULE ON REQUEST FOR DECLARATORY RELIEF IN RULING
ON THIS DEMURRER
When, under the allegations stated in the complaint, the controversy can be
determined as a matter of law, there is no requirement for the trial court to enter any
form of declaratory judgment and the complaint for declaratory relief is subject to
demurrer without leave to amend under those circumstances. (Peters v. State of
10 California (1987l 188 Cal. App. 3d 1421, 1427; Pacific Gas & Electric Co. v. City of San
Jose (1985) 172 Cal. App. 3d 598, 6oo, 6o3; California State Employees'Assn. v.
12 Flournoy (1973) 32 Cal. App. 3d 219, 240-241.) Given that plaintiffs have attached all
13 the contractual documents to the Amended Complaint, the Court is faced with a
14 question of law. Plaintiffs cannot win a favorable declaration, and therefore the Court
15 may grant a general demurrer to the cause of action for declaratory relief.
16 CONCLUSION
17 Plaintiffs were granted leave to amend their complaint but have really failed to do
18 so. They have added arguments that are contradictory to their original complaint and
19 the true facts in this case. When analyzing both complaints together under the Sham
20 Pleading Doctrine, plaintiffs have failed to state facts sufficient to constitute any of the
21 causes of action, including the cause of action for declaratory relief. Defendant
22 respectfully requests that this court grant its demurrer and award attorney's fees and
23
24
costs pursuant to the Ground Lease Article 14.3 and Article 19.21.
Dated: February 3, 2021 Wilson Law ', A Professional Corporation
25 By:
26
Dennis M. Wilson, Attorney for Defendant
27
28
Defendant's Reply to Opposition to Demurrer to Amended Complaint
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Dennis M. Wilson (State Bar No. 43877l Wilson Law Firm, A Professional Corporation 50 Iron Point Circle, Suite n5 Folsom, California 95630 2/3/2021 Telephone: (916) 608-8891 Facsimile: (916l 608-8892 Attorneys for HK Deluxe, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF BUTTE 10 CPI CHICO BENEFICIARY LLC and TA 12 CHICO LLC, Defendant HK Deluxe, LLC's, Reply to 13 Plaintiffs, Opposition to Demurrer to Amended vs. Complaint 14 15 HK DELUXE, LLC, Dept: 1 Date: February 10, 2021 16 Defendant. Trme: 9:00 Judge: Hon. Tamara Mosbarger 17 18 And Related Cross-Action 19 20 PLAINTIFFS'NLY NEW ARGUMENT IS THEY ARE ENTITLED TO ADDITIONAL DECLARATORY RELIEF. 21 1. The rest of Plaintiffs'rguments are covered in the demurrer to the 22 Amended Complaint. 23 All of Plaintiffs'auses of action still fail for the same reasons set forth in 24 Defendant's Memorandum of Points and Authorities in Support of the Demurrer and 25 the Motion to Strike. All of the causes of action, including the fourth cause of action for 26 Declaratory Relief that incorporates paragraphs 1 through 68, are based on the 27 allegation that Defendant's single refusal to consent to the request for termination of the 28 Defendant's Reply to Opposition to Demurrer to Amended Complaint Sublease under section 4 of the CND Agreement was unreasonable. This Reply will therefore cover a few key points at issue in Plaintiffs'pposition, but the Demurrer provides responses to the other issues raised in the Opposition. 2. Plaintiffs'ow seek declaratory relief that defendant has no right to prevent PlaintiAs and Walgreen from terminating the sublease. Plaintiffs'arlier argument was that defendant could not unreasonably withhold consent. Plaintiffs now claim that defendant has no right to prohibit the termination of the Sublease. This new position is contradicted by the exhibits attached to the Amended Complain, which are the same exhibits attached to the Complaint. 10 THE GOVERNING DOCUMENTS HAVE SPECIFIC CLAUSES THAT CONTROL TERMINATION OF THE SUBLEASE 12 Defendant itemized and summarized the relevant clauses of the governing 13 documents in the Motion for Judgment on the Pleadings. Defendant has also requested 14 judicial notice of that motion, including the excerpts from the governing documents. 15 The clauses relevant to the new declaratory relief request are the following: 16 Article 1.6 of the Ground Lease. 17 This section states that the term of the Ground Lease is twenty-five years with 18 five-year renewal periods, which are automatically extended without notice unless the 19 tenant terminates the Ground Lease per Article 3.1 of the Ground Lease. (Ex. D; 20 Complaint, Ex. A, Ground Lease p. 1,Art. 1.6.) 21 Article 3.1 of the Ground Lease. 22 This section gives the Plaintiffs the right and option, at Plaintiffs'lection, to terminate the Ground Lease effective as of the last day of the three hundredth (300th) 24 full calendar month (25 years) following the Sublease Date and every five years 25 thereafter until the last day of the 45th year. (Ex. E; Complaint, Ex. A, Ground Lease, p. 26 3, Art. 3.1.) 27 Article 8.2 of the Ground Lease. 28 This section allows the Plaintiffs and their predecessors to assign their interest in Defendant's Reply to Opposition to Demurrer to Amended Complaint the Ground Lease, but it does not relieve the Plaintiffs of liability unless a sublease is in effect with a sublessee having a net worth of $ 50,000,000 or greater, or the assignee ha that net worth and assumes the obligations of lessee. (Ex. G; Complaint, Ex. A, Ground Lease, p. 6, Art. 8.2.) There is no such sublease in place or proposed by Plaintiffs. Consent and Non-Disturbance Agreement — Section 1. Defendant consents to the subleasing of the Leased premises to Walgreens under the terms and conditions more particularly set forth in the Sublease. (Ex. J; Complaint, Ex. A, Exhibit D to Ground Lease, p. 24-27, ri1.) Consent and Non-Disturbance Agreement - Section 6. 10 This section states that if there is a conflict between the terms of the Ground Lease and the Sublease, then the terms of the Ground Lease prevail and control with 12 respect to the rights and obligations of the plaintiffs to the defendant. (Ex. L; Complaint, 13 Ex. A, CND Agreement, p. 25, 5 6.) 14 Sublease — Article 1. 15 This article subleases the property from Plaintiffs to Walgreen Co. for a fifty-year 16 term and authorizes the term to be adjusted according to Article 3 of the Sublease and 17 subject to prior termination as provided in the Sublease. (Ex. M; Complaint, Ex. B, Sublease, p. 1,Art. 1.) 19 Sublease — Article 2 (a). 20 This article specifies the amount of Ground Rent to be paid to the Ground 21 Lessor. (Ex. N; Complaint, Ex. B; Sublease, p. 2, Art. 2 (b).) 22 Sublease - Article 3 (d). 23 This article allows Walgreen Co. to terminate the sublease on the three 24 hundredth month of the lease (twenty-five years), and every five years thereafter until 25 the fifty-year term expires. (Ex. 0; Complaint, Ex. B, Sublease, p. 4-5, Art. 3(d).) Thus, 26 the Sublease does not provide for renewals of the sublease; rather, it contains specific 27 provisions for termination on specified dates. 28 Defendant's Reply to Opposition to Demurrer to Amended Complaint Sublease - Article 13 (e). This article prohibits releasing Walgreen Co. from liability unless there is an assignment of the Sublease or a subletting of the leased premises. (Ex. P; Complaint, Ex. B, Sublease p. 20-21, Art. 13 (e).) In addition, Article 13 (a) and (b) authorize termination under specific circumstances that would still not relieve Walgreen Co from liability. Plaintiffs'uties and obligations to the defendant (Ground Lessor) are fully detailed throughout the Ground Lease, Sublease, and CND Agreement (collectively herein referred to as "governing documents"). The governing documents set out terms 10 that not only make defendant a third-party beneficiary with rights arising from the Sublease, but they also clearly provide defendant Ground Lessor with specific rights 12 when it comes to the termination and or modification of the Sublease. When read together, the clauses provide for termination of the lease only at 14 specific times or under specific conditions. The clauses also do not release Walgreen for 15 liability. The exhibits attached to the Amended Complaint contradict 16 plaintiffs'ontentions. 17 PLAINTIFFS HAVE NO BASIS ON WHICH TO SEEK DECLARATORY 18 RELIEF IN THE FOURTH CAUSE OF ACTION, 19 Plaintiffs state in their Oppositions that they agree to strike their causes of action 20 for breach of contract and intentional interference and are now only seeking declaratory 21 relief under the fourth cause of action. But they incorporate the allegations in all the 22 preceding into the fourth cause of action. They incorporated assertions in the Amended 23 Complaint that they are not seeking termination, but are seeking modification and the 24 right to receive accelerated rent instead of a termination fee. Plaintiffs then state they 25 seek a declaration that "Defendant has no right, under the Lease, the Sublease, the 26 CDNA, or any other governing documents, to prohibit the termination of the Sublease." 27 (Amended Complaint, p. 9, 0 70.) In its ruling on the Motion for Judgment on the 28 Pleadings, the Court determined that defendant Ground Lessor could reasonably or Defendant's Reply to Opposition to Demurrer to Amended Complaint unreasonably choose to consent to the request for termination because section 4 of the CND Agreement only applies to material amendments of the sublease, not total termination. (Order, January 1, 2020.) The court cannot rule that "defendant has no right...to prohibit the termination of the Sublease" because 1) the plaintiffs'ew interpretation of the governing documents is contrary to the court's ruling, and 2) plaintiffs have not stated facts sufficient to constitute a cause of action for such declaratory relief. (Civ. Proc. 430.10(e).) Thus, the alleged new theory is really the old theory reworked. Furthermore, plaintiffs cause of action for declaratory relief has no basis if the 10 "lion's share" of the Amended Complaint is moot, as plaintiffs claim in their opposition. This declaratory relief claim fails because it is "wholly derivative" of the other failed 12 claims that plaintiffs concede in their opposition, (Smyth v. Berman (2019) 31 Cal. App. 13 5i" 183, 191-192.) The fourth cause of action incorporates all the paragraphs in the 14 previous causes of action. In addition, the only wrongful act alleged in the Amended 15 Complaint is that Defendant unreasonably withheld consent to plaintiffs'equest in 16 violation of section 4 of the CND Agreement that defendant's consent not be unreasonably withheld. But defendant could unreasonably withhold consent to the 18 termination, because there is no clause requiring reasonable consent to termination, let 19 alone consent to termination. 20 THE SUBLEASE DOES NOT CONTEMPLATE THAT PLAINTIFFS MAY 21 TERMINATE THE SUBLEASE WHENEVER THEY DESIRE. As discussed at length in the demurrer, the Ground Lease and Sublease both provide that termination shall occur at the end of the term of 25 years. (Points and 24 Authorities in Support of Demurrer, p. 14, lines 3-11.) Plaintiffs now argue that the 25 Sublease contemplates that plaintiffs may terminate the sublease because the governing 26 documents provide the right to terminate the Sublease in the event of default or if 27 Walgreens notifies plaintiffs of their intention to sublet or assign all or a portion of the 28 premises and plaintiffs and plaintiffs disapprove of the proposed subtenant. Defendant's Reply to Opposition to Demurrer to Amended Complaint (Opposition to Demurrer, p. 7, lines 19-24.) Neither of the provisions that plaintiffs cite give them the absolute and unrestricted power to terminate the Sublease at will. While the agreement does allow for termination in the event of default, that constitutes a breach of the agreement that provides remedies against Walgreens. The other provision that plaintiffs rely on, Article 13(c) of the Sublease, is consistent with defendant's position that plaintiffs can only terminate the sublease after Walgreens sublets or assigns all or a portion of the premises. This is further supported by Article 13(e) of the Sublease that does not permit Walgreens to be released from liability even if there is an assignment or subletting of all or part of the lease premises. (Amended Complaint, Ex. 10 B, Sublease, Art. 13(e).) THE MEET AND CONFER DID NOT RESOLVE THE UNDERLYING ISSUES 12 WITH THE AMENDED COMPLAINT. While it is true that Mr. Fox stated during the meet and confer that he intended 14 to amend the complaint to narrow the issues, the major issue as to Defendant's rights with respect to the sublease was still in dispute as is evident from plaintiffs'oints and 16 Authorities in Opposition. Mr. Wilson believed that plaintiffs could not amend 17 successfully given the language of the exhibits attached to the complaint and the parties 18 could not reach agreement. Therefore, the filing of the Demurrer and the Motion to 19 Strike was appropriate despite good faith efforts on both sides to resolve these motions. 20 THE AMENDED COMPLAINT MAY NOT BE A "SHAM," BUT THE SHAM 21 PLEADING DOCTRINE STILL APPLIES. 22 The Sham Pleading Doctrine allows the court to examine the Amended 23 Complaint in comparison with the Original Complaint to analyze whether the Amended 24 Complaint is inconsistent with the prior complaint, discards factual allegations of the 25 prior complaint, or avoids factual allegations by contradictory averments. (Ooklond 26 Raiders v. National Football League (2005) 131 Cal. App. 4th 621, 653.) This doctrine 27 shifts the burden to the moving party to explain the inconsistencies between the prior 28 pleading and the amended pleading. (Ibid.) Plaintiffs cannot avoid the defects in the Defendant's Reply to Opposition to Demurrer to Amended Complaint original complaint by omitting problematic or inconsistent facts in the original complaint. Here, the causes of action in the Amended Complaint still rely heavily on their original allegations that Defendant breached the Lease and CND Agreement by unreasonably withholding consent to the request for termination pursuant to section 4 of the CND Agreement. (Amended Complaint, P. 4 Ill 19-22, P. 7, 'll 50, P. 8, lI 57.) However, as discussed in the Demurrer and the Motion to Strike, plaintiffs changed the vocabulary in the Amended Complaint to recharacterize their request to terminate the sublease with Walgreens as a request for a modification. They also recharacterized the 10 "termination fee" they negotiated with Walgreens as "Accelerated Rent'* to avoid the court's ruling on the Motion for Judgment on the Pleadings. (see Amended Complaint, 12 p. 3, 118, p. 4, tl24, p.6, 0 38, p. 8, Ill 60-64.) Not only are these changes inconsistent, 13 they also contradict the original complaint, its exhibits, and they do not comply with the 14 court's ruling that a material amendment to the Sublease as specified in section 4 of the 15 CND Agreement does not include complete termination of the Sublease. Disregarding 16 and circumventing the court's ruling indicates that the Amended Complaint was not 17 filed in good faith and is indeed a sham. i8 Plaintiffs also now claim that they do not oppose Defendant's motions with 19 respect to the first three causes of action and related allegations in the Amended 20 Complaint and that they exclusively oppose Defendant's arguments relating to the 21 fourth cause of action. (Opposition to Demurrer, p. 5, lines 1 1-13.) But plaintiffs still 22 incorporated all the allegations in the first three causes of action into the fourth cause of 23 action. In fact, plaintiffs concede that the lion's share of Defendant's demurrer and 24 motion to strike are moot. Their minor changes to vocabulary are evidently an effort to 25 rekindle their argument that their causes of action against defendant are a result of 26 defendant unreasonably withholding consent to a "modification." This avoids factual 27 allegations by contradictory averments. The court should therefore examine the 28 Original Complaint and the Amended Complaint to determine the extent that the Defendant's Reply to Opposition to Demurrer to Amended Complaint pleading of facts and positions in the Amended Complaint contradict facts pleaded in the original complaint. (Ochs v. PacifiCare of California (2004) 115 Cal. App, 4th 782, 797.) COURT MAY RULE ON REQUEST FOR DECLARATORY RELIEF IN RULING ON THIS DEMURRER When, under the allegations stated in the complaint, the controversy can be determined as a matter of law, there is no requirement for the trial court to enter any form of declaratory judgment and the complaint for declaratory relief is subject to demurrer without leave to amend under those circumstances. (Peters v. State of 10 California (1987l 188 Cal. App. 3d 1421, 1427; Pacific Gas & Electric Co. v. City of San Jose (1985) 172 Cal. App. 3d 598, 6oo, 6o3; California State Employees'Assn. v. 12 Flournoy (1973) 32 Cal. App. 3d 219, 240-241.) Given that plaintiffs have attached all 13 the contractual documents to the Amended Complaint, the Court is faced with a 14 question of law. Plaintiffs cannot win a favorable declaration, and therefore the Court 15 may grant a general demurrer to the cause of action for declaratory relief. 16 CONCLUSION 17 Plaintiffs were granted leave to amend their complaint but have really failed to do 18 so. They have added arguments that are contradictory to their original complaint and 19 the true facts in this case. When analyzing both complaints together under the Sham 20 Pleading Doctrine, plaintiffs have failed to state facts sufficient to constitute any of the 21 causes of action, including the cause of action for declaratory relief. Defendant 22 respectfully requests that this court grant its demurrer and award attorney's fees and 23 24 costs pursuant to the Ground Lease Article 14.3 and Article 19.21. Dated: February 3, 2021 Wilson Law ', A Professional Corporation 25 By: 26 Dennis M. Wilson, Attorney for Defendant 27 28 Defendant's Reply to Opposition to Demurrer to Amended Complaint