Preview
®
AL
FILES
AMEDA COUNTY iam fk
OCT 1 5 202}
—Fok:
CLERK OF THRBU
-AICR COURT
By
Deputy
OF THE STATE OF CALIFORNIA
‘HE COUNTY OF ALAMEDA
CASE NO. RG21-100261
shalf
ited, REPLY TO PLAINTIFFS’ OPPOSITION
TO DEFENDANT CONSERVICE, LLC’S
DEMURRER TO PLAINTIFFS’ FIRST
AMENDED CLASS ACTION COMPLAINT
Date: October 22, 2021
Time: 10:00 a.m.
Dept.: 21
Reservation #: R-2294551
NT,
FAC Filed: June 28, 2021
Y, Complaint Filed: May 28, 2021
Trial Date: Not Yet Set
DI
gh
DEFENDANT CONSERVICE, LLC’S DEMURRER TO FIRST
YN COMPLAINT - CASE NO. RG21-100261
®
(“Conservice”) hereby submits its reply to Plaintiffs’
‘W YEN (“Yen”), JAMES BALL (“Ball”), KAITLIN
ESSIER (“Tessier”) (hereinafter jointly referred to as
Complaint (“FAC”).
I
ITRODUCTION
t their causes of action against Conservice are subject to
iffs’ Opposition hinges on the arguments that Conservice
no contract with plaintiffs, that Plaintiffs have a private
tent Adjustment Program Regulation 10.1.10 prohibits
sewer, and trash. None of these arguments are valid.
on to Conservice’s Demurrer that they agreed to pay
fied amount of “alleged unmetered utilities”. (Opp., p.
w claim that the provision requiring them to pay “alleged
ie, Conservice is not a party to the subject agreement (the
st or eliminate the payments for water, trash, and sewer,
dnsible for providing housing services to Plaintiffs.
Demurrer, the regulatory, statutory, and textual guidance
only refers to gas and electricity and does not include
ain Conservice’s Demurrer with prejudice.
Il.
\TE A CLAIM AGAINST CONSERVICE
hibit Division Of Water, Trash, and Sewer Costs
slated Section 10.1.10 by providing ancillary services that
or their pro rata share of their building’s water, trash and
f water, trash, and sewer services should and would be
‘S Addendum allocation method, Plaintiffs/tenants do not
var any direct relationship to individual tenants’ usage.
ef
DEFENDANT CONSERVICE, LLC’S DEMURRER TO FIRST
YN COMPLAINT — CASE NO. RG21-100261
®
recause the practice is legal.s
ntal unit shares any type of utility bill with
gal to divide up the bill between units. Splitting
tenants who live in separate units is prohibited
mmission Code and Rule 18 of PG&E. The best
s to install individual meters. If this is too
yperty owner should pay the utility bill
ie cost into the rent.” [All emphasis added.]
ite In re A.N. (2020) 9 Cal.Sth 343, 351-52, for the
ig of the term is clear, this is where the analysis ends.’
distinction made in the Jn re A.N. case, which notes that
terms in light of their ordinary meaning, while also taking
e overall structure of the statutory scheme to determine
egislature’s underlying purpose.” (Jn re A.N. (2020) 9
nal citations omitted].) Additional case law supports the
nae literal meaning of a statute. (L.A. County Bd. of
282, 293 (2016); Kalway, 151 Cal. App. 4th at 833 (“A
meaning of a statute . . . is consistent with other related
ry language will not prevail if contrary to the legislative
ipport the conclusion that Section 10.1.10 does not apply
n. 5:24-8:24.) As Conservice explained in its Demurrer,
of 10.1.10 confirms that “utilities” refers to gas and
‘em. 6:23-7:12.) For example, PG&E Rule 18 explicitly
s services (PG&E does not provide water, trash, or sewer
‘AO treats water and refuse removal as separate concepts
.020; Dem. 8:1-13.)
jlords should individually submeter units to avoid utility
with respect to gas and electric utilities and practically
wBe
DEFENDANT CONSERVICE, LLC’S DEMURRER TO FIRST
YN COMPLAINT - CASE NO. RG21-100261
@
: (indeed, Plaintiffs would presumably be offended if their
hed their garbage, which underscores the illogic of the
aing of “utility” includes water, trash, and sewer, yet they
ition — to support this argument. (Opp. 3:23-25.) They
JC and PG&E Rules are cited in 10.1.10 as policy for
tility. (Opp. 5:16-18.) Yet as explained in Conservice’s
uction “it is illegal” a “passive voice” phrase suggesting
ms on splitting electricity and gas bills referenced later in
2w law—to describe its anti-utility splitting rule, whereas
1ew obligation uses the active terms “shall” and “will.”
ergy Devs. v. Cty. of Invo, 122 Cal. App. 4th 1512, 1525
ice created ambiguity, resolving ambiguity by looking to
Not — Deny Plaintiffs “Housing Services”
sition that Conservice improperly increased their rent by
! by the Landlord by separately charging for water, trash,
tion to their rent. (Opp. 12:6-25.)
he Rent Adjustment Ordinance separately lists “utilities,”
yr sewer):
i all services provided by the owner related to
a covered unit, including, but not limited to,
ance, painting, utilities, heat, water, elevator
janitorial service, refuse removal, furnishings,
employee services, and any other benefits or
ant by agreement, whether express or implied,
a specific number of occupants and the right to
of roommates, regardless of any prohibition
signment.” [Emphasis added.]
20.)
3s
DEFENDANT CONSERVICE, LLC’S DEMURRER TO FIRST
JN COMPLAINT - CASE NO. RG21-100261
@
hey contracted with their Landlords to pay for allocated
onservice merely conveyed bills with the agreed-upon,
Plaintiffs. Plaintiffs further undercut their argument that
2fendant fails to explain why the owner should not be
der state law or petition Oakland’s Rent Board.” (Opp.
iorted definitions. They claim that “water” and “refuse
sing Services” are actually meant to be specific examples
hey also argue that all the “Housing Services” must all be
ally delineated. (Opp. 7:26-28.) They likewise offer no
in fact, contrary to law. A court cannot interpret an
language irrelevant. (See, e.g., Tuolumne Jobs & Small
?, 1038 (2014) (courts “should avoid constructions that
ylusage”).) Rather, courts must choose an interpretation
‘rms. (/d.) Here, the only interpretation that satisfies this
itilities (gas and electric) to be the same thing as water,
rent control program.
a claim against Conservice.
Ill.
NOT A PROPER DEFENDANT
1 that Conservice can be liable for an alleged violation of
ly alleged that Conservice acted as Plaintiffs’ landlords’
d them for split utilities.” (Opp. 9:15-17.) Yet Plaintiffs
ey as they do not dispute that Conservice does not own,
's at issue in this case. They also do not dispute that
ny of the Plaintiffs in this case, does not maintain the
ts, and does not_have any contractual relationship with
-4-
DEFENDANT CONSERVICE, LLC’S DEMURRER TO FIRST
»N COMPLAINT —- CASE NO. RG21-100261
®
FAC that Conservice does not collect or handle money.
ie in the FAC that Conservice is their landlords’ agent.
onclusory fashion, that “Defendants violate the Tenant
‘ovide housing services required by Oakland’s Rent
yr inciting other defendants in failing to provide housing
stment Ordinance”; and that Defendant Conservice was a
'
1eir Opposition, Plaintiffs cite Oakland Municipal Code §
iny owner, lessor or landlord, . . . and the representative,
w or landlord.” (Opp. 9:7-10.) Plaintiffs claim “[tJhis
ihown above it is alleged to have acted as a Landlord
billed them for split utilities.” (Opp. 9:15-17.) Yet this
ons.
.C that Conservice aided or incited other defendants is
ship. Agency is a specific “fiduciary relationship that
ufests assent to another person (an ‘agent’) that the agent
‘bject to the principal’s control, and the agent manifests
Grande v. Eisenhower Med. Ctr. (2020) 44 Cal. App. Sth
an agent for billing purposes only. Conservice was not
3 regarding how to bill the tenants or how costs should be
wity to charge Plaintiffs for utilities costs, much less to
any other steps to remedy purported Section 10.1.10
_ bills, and fees are made by landlords and tenants, as
ce is not a party. (See e.g., FAC, 9] 43-44, 53-54, 65-66,
, nor can they allege, that their landlords have the right to
untiff, at most, plead that Conservice provides a service
25:
DEFENDANT CONSERVICE, LLC’S DEMURRER TO FIRST
¥N COMPLAINT - CASE NO. RG21-100261
®
usage and preparing billing statements. (FAC 4/9] 34-37.)
the inference that Plaintiffs’ landlords had the requisite
gency relationship. (See Aliign Activation Wear, LLC v.
24, 2020) 2020 WL 5790418, at *4 (granting motion to
control were “insufficient to support a plausible inference
an agent or representative of Plaintiffs’ landlords—it is
)lish Conservice’s liability. While agents are responsible
agency relationship, they are not responsible for wrongs
Blue Cross of California (2009) 172 Cal. App. 4th 1594,
oyees acting for and on behalf of a corporation cannot be
erprises, LLC v. Sherwood Partners, Inc., 131 Cal. App.
iable for conspiring with the principal when the agent is
the principal.”).) Here, Conservice helping the landlords
‘S$ not amount to wrongful conduct.
vice was hired by the landlord to provide the tenants with
* services, it has not acted as the landlord’s representative
livision as contracted to by the parties. As such, Plaintiffs
1 from an alleged violation of Regulation 10.1.10, cannot
ice.
IV.
AVE A PRIVATE RIGHT OF ACTION
- defendant, Plaintiffs cannot sue for damages under the
‘AO”) or Tenant Protection Ordinance (“TPO”) because
a private right of action to seek damages for alleged
1-11:21.)
the Oakland City Council ratified the RAB’s regulations,
tily violate the RAO, and are actionable under the RAO
-6-
DEFENDANT CONSERVICE, LLC’S DEMURRER TO FIRST
YN COMPLAINT — CASE NO. RG21-100261
@
):6.) But the RAO itself forecloses this argument. As
Oakland City Council specifically mentioned the RAB’s
. For example, the RAO states that “[rJent increases are
sr and Regulations.” (Oak. Mun. Code. § 8.22.065; Opp.
‘ouncil chose not to mention the RAB’s regulations when
iishes that the City Council did not authorize private suits
\B regulations. (See Oak. Mun. Code § 8.22.150(C) (“An
ion... for violation of the provisions of this Chapter.”)
roviding ancillary services that allowed their landlords to
their building’s water, trash and sewer costs, Conservice
and therefore Plaintiffs can sue under the RAO to remedy
Even if there were a de facto rent increase, it would be
ion 10.1.10. The Oakland City Council provided a forum
ted hearing before a Hearing Officer or the RAB. (Oak.
It did not provide a private civil action for alleged
thermore, Plaintiffs are incorrect — the RAB’s regulations
es to tenants in the lease is not a rent increase. (RAB
ity costs to the tenant by the landlord is not considered as
ease says the landlord will cover utilities).) Finally,
/ of the Plaintiffs, and therefore did not (and could never)
argue that even if they lack a private cause of action for
‘ivate cause of action under the TPO for ‘“‘a decrease in
o Residential Rent Stabilization & Arbitration Board, to
tted to create regulations pursuant to an enabling city
):12-23.) But this is not relevant to the issue of whether a
e does not argue that Section 10.1.10 was not validly
DEFENDANT CONSERVICE, LLC’S DEMURRER TO FIRST
JN COMPLAINT - CASE NO. RG21-100261
®
Plaintiffs have not alleged that they were denied water,
y were billed for them using an allegedly improper
ive no claim under the TPO. Two, even if Plaintiffs did
lord and is not responsible for providing housing services
ite a TPO claim against Conservice.
Vv
INSIC AIDS” ARE NOT PROPERLY SUBJECT TO
tE SUBSTANTIVELY DISTINGUISHABLE
an opposition to Plaintiffs’ Request for Judicial Notice
on to Conservice’s Demurrer. The RJN requests that the
ient Board decisions.
:e’s Opposition thereto, these decisions are not subject to
‘onsidered on demurrer. Further, these decisions are not
ven the Board itself). Finally, even if the Court is inclined
t may not take judicial notice of the substance of the Rent
take judicial notice of the substance of these decisions,
ar distinguish these non-precedential decisions:
disputes against landlords, not third-party billing services
ned in the Demurrer and again above, Conservice has no
: for allocated water, trash, and sewer costs, or over how
ely provides billing services for landlords based on water,
contracted with their tenants to collect.
y of the landlords in these decisions raised the arguments
None of the leases at issue in the decisions included an
ind/or sewer services. Plaintiffs do not dispute that they
luded the YES Addendum requiring Plaintiffs to pay the
: services based on an “allocation factor” formula. (FAC
-8-
DEFENDANT CONSERVICE, LLC’S DEMURRER TO FIRST
JN COMPLAINT - CASE NO. RG21-100261
*
2, these decisions cannot be taken as the Board’s reasoned
asses water/trash/sewer (See People v. McGraw-Hill
382 1390 (2014) (“An opinion is not authority for
nited States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33
ised in briefs or argument nor discussed in the opinion of
on th[e] point’”).)
VI
CONCLUSION
1 Conservice’s Demurrer, their First Amended Complaint
Sonservice. Accordingly, Conservice respectfully
s Demurrer with prejudice
IAYES SCOTT BONINO ELLINGSON
JUSLANI SIMONS UN * CLAUSE, LLP
by
EPHE
wr}
CTS
. SCOTT
2 fi p-
JESSICA E. SCOTT
Attomeys for Defendant
CONSERVICE, LLC
292
DEFENDANT CONSERVICE, LLC’S DEMURRER TO FIRST
¥N COMPLAINT — CASE NO. RG21-100261
Preview
® AL FILES AMEDA COUNTY iam fk OCT 1 5 202} —Fok: CLERK OF THRBU -AICR COURT By Deputy OF THE STATE OF CALIFORNIA ‘HE COUNTY OF ALAMEDA CASE NO. RG21-100261 shalf ited, REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANT CONSERVICE, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED CLASS ACTION COMPLAINT Date: October 22, 2021 Time: 10:00 a.m. Dept.: 21 Reservation #: R-2294551 NT, FAC Filed: June 28, 2021 Y, Complaint Filed: May 28, 2021 Trial Date: Not Yet Set DI gh DEFENDANT CONSERVICE, LLC’S DEMURRER TO FIRST YN COMPLAINT - CASE NO. RG21-100261 ® (“Conservice”) hereby submits its reply to Plaintiffs’ ‘W YEN (“Yen”), JAMES BALL (“Ball”), KAITLIN ESSIER (“Tessier”) (hereinafter jointly referred to as Complaint (“FAC”). I ITRODUCTION t their causes of action against Conservice are subject to iffs’ Opposition hinges on the arguments that Conservice no contract with plaintiffs, that Plaintiffs have a private tent Adjustment Program Regulation 10.1.10 prohibits sewer, and trash. None of these arguments are valid. on to Conservice’s Demurrer that they agreed to pay fied amount of “alleged unmetered utilities”. (Opp., p. w claim that the provision requiring them to pay “alleged ie, Conservice is not a party to the subject agreement (the st or eliminate the payments for water, trash, and sewer, dnsible for providing housing services to Plaintiffs. Demurrer, the regulatory, statutory, and textual guidance only refers to gas and electricity and does not include ain Conservice’s Demurrer with prejudice. Il. \TE A CLAIM AGAINST CONSERVICE hibit Division Of Water, Trash, and Sewer Costs slated Section 10.1.10 by providing ancillary services that or their pro rata share of their building’s water, trash and f water, trash, and sewer services should and would be ‘S Addendum allocation method, Plaintiffs/tenants do not var any direct relationship to individual tenants’ usage. ef DEFENDANT CONSERVICE, LLC’S DEMURRER TO FIRST YN COMPLAINT — CASE NO. RG21-100261 ® recause the practice is legal.s ntal unit shares any type of utility bill with gal to divide up the bill between units. Splitting tenants who live in separate units is prohibited mmission Code and Rule 18 of PG&E. The best s to install individual meters. If this is too yperty owner should pay the utility bill ie cost into the rent.” [All emphasis added.] ite In re A.N. (2020) 9 Cal.Sth 343, 351-52, for the ig of the term is clear, this is where the analysis ends.’ distinction made in the Jn re A.N. case, which notes that terms in light of their ordinary meaning, while also taking e overall structure of the statutory scheme to determine egislature’s underlying purpose.” (Jn re A.N. (2020) 9 nal citations omitted].) Additional case law supports the nae literal meaning of a statute. (L.A. County Bd. of 282, 293 (2016); Kalway, 151 Cal. App. 4th at 833 (“A meaning of a statute . . . is consistent with other related ry language will not prevail if contrary to the legislative ipport the conclusion that Section 10.1.10 does not apply n. 5:24-8:24.) As Conservice explained in its Demurrer, of 10.1.10 confirms that “utilities” refers to gas and ‘em. 6:23-7:12.) For example, PG&E Rule 18 explicitly s services (PG&E does not provide water, trash, or sewer ‘AO treats water and refuse removal as separate concepts .020; Dem. 8:1-13.) jlords should individually submeter units to avoid utility with respect to gas and electric utilities and practically wBe DEFENDANT CONSERVICE, LLC’S DEMURRER TO FIRST YN COMPLAINT - CASE NO. RG21-100261 @ : (indeed, Plaintiffs would presumably be offended if their hed their garbage, which underscores the illogic of the aing of “utility” includes water, trash, and sewer, yet they ition — to support this argument. (Opp. 3:23-25.) They JC and PG&E Rules are cited in 10.1.10 as policy for tility. (Opp. 5:16-18.) Yet as explained in Conservice’s uction “it is illegal” a “passive voice” phrase suggesting ms on splitting electricity and gas bills referenced later in 2w law—to describe its anti-utility splitting rule, whereas 1ew obligation uses the active terms “shall” and “will.” ergy Devs. v. Cty. of Invo, 122 Cal. App. 4th 1512, 1525 ice created ambiguity, resolving ambiguity by looking to Not — Deny Plaintiffs “Housing Services” sition that Conservice improperly increased their rent by ! by the Landlord by separately charging for water, trash, tion to their rent. (Opp. 12:6-25.) he Rent Adjustment Ordinance separately lists “utilities,” yr sewer): i all services provided by the owner related to a covered unit, including, but not limited to, ance, painting, utilities, heat, water, elevator janitorial service, refuse removal, furnishings, employee services, and any other benefits or ant by agreement, whether express or implied, a specific number of occupants and the right to of roommates, regardless of any prohibition signment.” [Emphasis added.] 20.) 3s DEFENDANT CONSERVICE, LLC’S DEMURRER TO FIRST JN COMPLAINT - CASE NO. RG21-100261 @ hey contracted with their Landlords to pay for allocated onservice merely conveyed bills with the agreed-upon, Plaintiffs. Plaintiffs further undercut their argument that 2fendant fails to explain why the owner should not be der state law or petition Oakland’s Rent Board.” (Opp. iorted definitions. They claim that “water” and “refuse sing Services” are actually meant to be specific examples hey also argue that all the “Housing Services” must all be ally delineated. (Opp. 7:26-28.) They likewise offer no in fact, contrary to law. A court cannot interpret an language irrelevant. (See, e.g., Tuolumne Jobs & Small ?, 1038 (2014) (courts “should avoid constructions that ylusage”).) Rather, courts must choose an interpretation ‘rms. (/d.) Here, the only interpretation that satisfies this itilities (gas and electric) to be the same thing as water, rent control program. a claim against Conservice. Ill. NOT A PROPER DEFENDANT 1 that Conservice can be liable for an alleged violation of ly alleged that Conservice acted as Plaintiffs’ landlords’ d them for split utilities.” (Opp. 9:15-17.) Yet Plaintiffs ey as they do not dispute that Conservice does not own, 's at issue in this case. They also do not dispute that ny of the Plaintiffs in this case, does not maintain the ts, and does not_have any contractual relationship with -4- DEFENDANT CONSERVICE, LLC’S DEMURRER TO FIRST »N COMPLAINT —- CASE NO. RG21-100261 ® FAC that Conservice does not collect or handle money. ie in the FAC that Conservice is their landlords’ agent. onclusory fashion, that “Defendants violate the Tenant ‘ovide housing services required by Oakland’s Rent yr inciting other defendants in failing to provide housing stment Ordinance”; and that Defendant Conservice was a ' 1eir Opposition, Plaintiffs cite Oakland Municipal Code § iny owner, lessor or landlord, . . . and the representative, w or landlord.” (Opp. 9:7-10.) Plaintiffs claim “[tJhis ihown above it is alleged to have acted as a Landlord billed them for split utilities.” (Opp. 9:15-17.) Yet this ons. .C that Conservice aided or incited other defendants is ship. Agency is a specific “fiduciary relationship that ufests assent to another person (an ‘agent’) that the agent ‘bject to the principal’s control, and the agent manifests Grande v. Eisenhower Med. Ctr. (2020) 44 Cal. App. Sth an agent for billing purposes only. Conservice was not 3 regarding how to bill the tenants or how costs should be wity to charge Plaintiffs for utilities costs, much less to any other steps to remedy purported Section 10.1.10 _ bills, and fees are made by landlords and tenants, as ce is not a party. (See e.g., FAC, 9] 43-44, 53-54, 65-66, , nor can they allege, that their landlords have the right to untiff, at most, plead that Conservice provides a service 25: DEFENDANT CONSERVICE, LLC’S DEMURRER TO FIRST ¥N COMPLAINT - CASE NO. RG21-100261 ® usage and preparing billing statements. (FAC 4/9] 34-37.) the inference that Plaintiffs’ landlords had the requisite gency relationship. (See Aliign Activation Wear, LLC v. 24, 2020) 2020 WL 5790418, at *4 (granting motion to control were “insufficient to support a plausible inference an agent or representative of Plaintiffs’ landlords—it is )lish Conservice’s liability. While agents are responsible agency relationship, they are not responsible for wrongs Blue Cross of California (2009) 172 Cal. App. 4th 1594, oyees acting for and on behalf of a corporation cannot be erprises, LLC v. Sherwood Partners, Inc., 131 Cal. App. iable for conspiring with the principal when the agent is the principal.”).) Here, Conservice helping the landlords ‘S$ not amount to wrongful conduct. vice was hired by the landlord to provide the tenants with * services, it has not acted as the landlord’s representative livision as contracted to by the parties. As such, Plaintiffs 1 from an alleged violation of Regulation 10.1.10, cannot ice. IV. AVE A PRIVATE RIGHT OF ACTION - defendant, Plaintiffs cannot sue for damages under the ‘AO”) or Tenant Protection Ordinance (“TPO”) because a private right of action to seek damages for alleged 1-11:21.) the Oakland City Council ratified the RAB’s regulations, tily violate the RAO, and are actionable under the RAO -6- DEFENDANT CONSERVICE, LLC’S DEMURRER TO FIRST YN COMPLAINT — CASE NO. RG21-100261 @ ):6.) But the RAO itself forecloses this argument. As Oakland City Council specifically mentioned the RAB’s . For example, the RAO states that “[rJent increases are sr and Regulations.” (Oak. Mun. Code. § 8.22.065; Opp. ‘ouncil chose not to mention the RAB’s regulations when iishes that the City Council did not authorize private suits \B regulations. (See Oak. Mun. Code § 8.22.150(C) (“An ion... for violation of the provisions of this Chapter.”) roviding ancillary services that allowed their landlords to their building’s water, trash and sewer costs, Conservice and therefore Plaintiffs can sue under the RAO to remedy Even if there were a de facto rent increase, it would be ion 10.1.10. The Oakland City Council provided a forum ted hearing before a Hearing Officer or the RAB. (Oak. It did not provide a private civil action for alleged thermore, Plaintiffs are incorrect — the RAB’s regulations es to tenants in the lease is not a rent increase. (RAB ity costs to the tenant by the landlord is not considered as ease says the landlord will cover utilities).) Finally, / of the Plaintiffs, and therefore did not (and could never) argue that even if they lack a private cause of action for ‘ivate cause of action under the TPO for ‘“‘a decrease in o Residential Rent Stabilization & Arbitration Board, to tted to create regulations pursuant to an enabling city ):12-23.) But this is not relevant to the issue of whether a e does not argue that Section 10.1.10 was not validly DEFENDANT CONSERVICE, LLC’S DEMURRER TO FIRST JN COMPLAINT - CASE NO. RG21-100261 ® Plaintiffs have not alleged that they were denied water, y were billed for them using an allegedly improper ive no claim under the TPO. Two, even if Plaintiffs did lord and is not responsible for providing housing services ite a TPO claim against Conservice. Vv INSIC AIDS” ARE NOT PROPERLY SUBJECT TO tE SUBSTANTIVELY DISTINGUISHABLE an opposition to Plaintiffs’ Request for Judicial Notice on to Conservice’s Demurrer. The RJN requests that the ient Board decisions. :e’s Opposition thereto, these decisions are not subject to ‘onsidered on demurrer. Further, these decisions are not ven the Board itself). Finally, even if the Court is inclined t may not take judicial notice of the substance of the Rent take judicial notice of the substance of these decisions, ar distinguish these non-precedential decisions: disputes against landlords, not third-party billing services ned in the Demurrer and again above, Conservice has no : for allocated water, trash, and sewer costs, or over how ely provides billing services for landlords based on water, contracted with their tenants to collect. y of the landlords in these decisions raised the arguments None of the leases at issue in the decisions included an ind/or sewer services. Plaintiffs do not dispute that they luded the YES Addendum requiring Plaintiffs to pay the : services based on an “allocation factor” formula. (FAC -8- DEFENDANT CONSERVICE, LLC’S DEMURRER TO FIRST JN COMPLAINT - CASE NO. RG21-100261 * 2, these decisions cannot be taken as the Board’s reasoned asses water/trash/sewer (See People v. McGraw-Hill 382 1390 (2014) (“An opinion is not authority for nited States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 ised in briefs or argument nor discussed in the opinion of on th[e] point’”).) VI CONCLUSION 1 Conservice’s Demurrer, their First Amended Complaint Sonservice. Accordingly, Conservice respectfully s Demurrer with prejudice IAYES SCOTT BONINO ELLINGSON JUSLANI SIMONS UN * CLAUSE, LLP by EPHE wr} CTS . SCOTT 2 fi p- JESSICA E. SCOTT Attomeys for Defendant CONSERVICE, LLC 292 DEFENDANT CONSERVICE, LLC’S DEMURRER TO FIRST ¥N COMPLAINT — CASE NO. RG21-100261