Preview
From: Margie Raetz Fax: 15105763300 To: Fax: (510) 267-1547 Page: 2 of 6 01/26/2021 2:52 PM
FILED BY FAX
Desier i (SBN 169159) ALAMEDA-COUNTY
aniel Bormstein
| Daniel Cheung (SBN 264971) danuary 26, 2024
2 || Bornstein Law THE SUPERIOR COURT
: merges eae
507 Polk Street, Suite 310 By Lynn Wiley, Deputy
erepnone: : RG20079393
# || Pacsimile: (415) 463-2349
5
~ || Attorneys for Plaintiff
6 | JOHN H.LEE
7
8g SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF ALAMEDA
10 UNLIMITED JURISDICTION
1 | JOHN HL LEE, ) Case No.: RG20079393
12 )
Plaintiff, )} MEMORANDUM OF POINTS AND
13 )}- AUTHORITIES OF PLAINTIFF IN
id VS. }- OPPOSITION TO DEMURRER TO
) COMPLAINT FOR MONEY
15 | JANELLE BARBIER, and DOES I to 10, }
inclusive, ) Date: February 22, 2021
16 ) Time: 3:00 pam.
17 Defendants. ) ° Dept. 19
)
18
19 Plaintiff JOHN H. LEE -(“Plaintiff) opposes the demurter of defendant JANELLE
0 |} BARBIER (“Defendant”), because 1) Defendant owes Plaintiff money for having failed to pay
91 |lrent totaling $26,950, -and 2) Defendant’s debt is not subject to small claims restrictions for
22 || COVID-19 rental debt.
23
24 L BACKGROUND
28 The premises involved are 1204 66" Street, Oakland, CA 94608 (“the premises”)
46 || {Complaint 7 6]. A one-year term lease between Plaintiff and Defendant commenced on July 15,
27 1) 2016, and was renewed annually by subsequent addenda.
28
i
Plaintiff's Opposition to Dermurrer to Complaint
From: Margie Raetz Fax: 15105763300 To: Fax: (510) 267-1547 Page: 3 of 6 01/26/2021 2:52 PM
i Defendant failed and contintied to refuse to pay monthly rent of $3,850 for each month
2 || from April 2020 to October 2020 when this lawsuit was filed, and still continues to fail to pay
3 j}rent.
4 Plaintiff has demanded payment pursuant to the rental agreemerit, but-Defendant has
5 || refused to pay. Plaintiff requests that the Court take judicial notice of the Complaint on file with
this Court.
ee)
IL. LEGAL ARGUMENT
on
A defnurrercan be used only to challenge defects that appear on the face of the pleading
10 |} under attack; or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan
11 4}(1985) 39 Cal. 3d 311, 318; Donabedian v. Mercury Ins. Co, 004) 116 Cal. App.4th 968, 994,
12 | A demurrer must admit.the truth of all material facts properly pleaded: Aubrey v. Tri-City
13 || Hospital Dist. (1992) 3 Cal. 4th 962, 966-67,
14 Accofding to Hale v. Sharp Héaltheare (2010) 183 Cal. App.4th 1373, 1386, in
15 || determinitig a demurrer, the court must interpret the complaint reasonably, reading it as’a whole
16 |} and the parts in context. See also Stearn v. Couniy of San Bernardino (2009) 170 Cal. App.4th
17 | 434, 439: CrossTalk Productions, inc. v,. Jacobson (1998) 65 Cal. App.4th 631,635, Further,
18° || “[the court must, in every stage of an action, diregard any defect in the pleadings which does
19 || not affect the substantial rights of the parties.” Hill v.-City of Santa Barbara (1961) 196
20 (Cal. App.2d 580, 585. For purposes of the demurrer, Defendant admits all facts well-pleaded,
21 || however improbable the allegations may be. Woedreo/’ v. Howes (1891) 88 Cal. 184, 189;
22 || Hitson v. Dwyer (1943) 61 Cal App.2d 803, 807,
23
24 A. Defendant Breached Her Rental Agreement by Failing to Pay Rent
28 for At Least Seven Months
26 Defendant violated the terms of paragraph 38 of the Residential Lease or Month-to-
27 || Month Rental Agreement that states: “b) mionthly rent roust always be paid in full (no partial
28 || payments accepted).” Defendant has not done so.
2
Plaintifi’s Opposition
to Demurrer-to Complaint
From: Margie Raetz Fax: 15105763300 To: Fax: (510) 267-1547 Page: 4 of 6 01/26/2021 2:52 PM
According to California Civil Jury Instructions 303, Plaintiff may recover damages from
inet
Defendant if 1) the -parties entered into a contracty 2) Plaintiff did all required of him; 3)
Be
Defendant failed to do something the contract required, i.e. pay rent; 4) Plaintiff was harmed;
and Defendant’s breach of contract was a substantial factor in causing Plaintiff's harm, Plaintiff
UR
undisputedly has pleaded all of these elemerits of-a breach of written contract, Defendant only
ter
alleges that Plaintiff should not have attempted to collect the debt by filing a lawsuit on
OR
October 27, 2020,
SR
The Court must give the Complaint a reasonable interpretation, “treat{ing] the demurrer
OO
as admitting all material facts properly pleaded,” but does not “assume the truth of contentions,
AO
deductions or conclusions of law. [Citation]” Aubrey v. Tri-City Hospital Dist. (1992)2 Cal4th
Om.
11 1/962, 967. Tt must liberally construe the pleading with a view to substantial justice between the
12 || parties. Xotlar v. Hartford Fire Ins..Co. (2000) 83 Cal App.4th 1116, 1120.
13
14 B. Defendant is Not Entitled to COVID-19 Protection
15 Defendant incorrectly asserts that California Code of Civil Procedure section 116.223
16 || bars Plaintiffs filing of an unlimited jurisdiction case in Superior Court, and that the resulting
17 || Complaint fails to state sufficient facts to support the first and second causes of action for
18 || breach of contract and breach of covénant of good faith and fair dealing, respéctively.
19 Section 116.223(a)\(3) specifically states that it was enacted because it is essential that
20 || parties “have access to a judicial foruni to resolve these disputes expeditiously, inexpensively,
21 jj and fairly,” ie. snvall claims court. The statute eliminatéd the small claims court's jurisdictional
22 || limit for collection of back rent. However, section 116.223(a)(4) merely makes it optional to file
23 |}a small claims lawsuit, and limits it to rent wipaid between March 1, 2020 and January 21,
24 |} 2021.
25 Plaintiff is not barred by this statute as he has chosen to file his lawsuit ia this Court of
26 |) unlimited jurisdiction” and is ~seekitig ptincipal damages of $26,950 — in excess of the
27 |) jurisdictional minimum of $25,000 for an unlimited civil action, Cal. Civ. Proc. Code section
28 || 89(a) states: “The existence of a statute relating to the atithority of the court in a limited crvil
3
Plaintiff's Opposition to Demurrer to Complaint
Fax: 15105763300 To: Fax: (510) 267-1547 Page: 5 of 6 01/26/2021 2:52 PM
From: Margie Raetz
] |) case does not, by itself, imply that the sarne authority does or does not exist in-an unlimited civil
2 || case.” Thus, in filing an unlimited civil case, Plaintiff is not constrained fo small claims court in
3 J attempting to obtain judgment on a debt for contractual rént that arose during any ‘specific
4 || petiod.
5 Specifically, while Cal) Civ: Proc, Code section 116.223(b)(3). bars commencement of
6 |/an action to recover rent debt using the smiall clainis procedure before March 1, 2021, Plaintiff
7 |/has not availed himself of the optional small claims procedure to recover the $26,950 in
8 | principal payments ori which Defendant has defaulted. Defendant has not alleged the existence
9 || of any restrictions on filing an wrilimited civil case.
10
il it. CONCLUSION
12 For all thé foregoing reasoris, Plaintiff JOHN H. LEE respectfully requests that the Court
13 || overrule the demurrer of Defendant and require Defendant to answer, only, within five days of
14 || service of notice of ruling.
15
16 Dated: January 21,2021 Respectfully submitted,
17 Hypaneigyy Law
18
19 By: . i
Daniel M. Bornstein
20 Attorneys for Plaintift
JOHN H. LEE
BlaindfPs Opposition to Demurrerto Complaint”
From: Margie Raetz Fax: 15105763300 To: Fax: (510) 267-1547 Page: 6 of 6 01/26/2021 2:52 PM
VERIFICATION
STATE OF CALIFORNIA, COUNTY OF ~ San Francisco
| have read the foregoing
and know ils contents. a
["") GHECK APPLICABLE PARAGRAPHS
(J | ain a party to this action. The matters stated in thé foregoing docunient are true of my own knowledge except as to those
matters which are stated on information and belief, and as to those rnatters | belleve them to be true,
EC") bam C2) an Officer (CC) -a partner
Cla of :
a party to this action, and ani authorized to make this verification for and on its behalf, and | make this verification for that reason.
(Cl) J am informed and believe ‘and on that ground allege that the matters stated in the foregoing document are true, . (The matters
stated in the foregoing document are true of my own knowlédge except as to thase matters which are stated on information and
belief, and ag to those matters | believe them to be true.
Kl] tam one of the attorneys for :
a party to this action. Such party is absent from the county of aforesaid where such attorneys have their offices, and | make this
verification for and-on behalf of that party for that reason. | am Informed and belleve and on that ground allege that the matters
stated In the foregoing document are true.
Executed an ; at ; California.
1 declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
TYPE OR PRINT NAME SIGNATURE
PROOF OF SERVICE
41013a (3) CCP Revised. 2004
STATE OF CALIFORNIA; COUNTY OF . San Francisco
| arm employed in the county of San Francisco | State of California.
lam over the age of 18 and not a party to the within action; my business address is:
507 Polk Street, Suite 310, San Francisco, CA 94102
on 91/28/2021 _| gerved the foregoing document described as
Memorandum of points and authorities of plaintiff in opposition to demurrer to complaint for money.
on - Defendant in this action
C5] by placing the true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list:
[XE] by placing - Co) the original . [EJ a true copy thereof enclosed in sealed envelopes addressed as follows;
Janelle Barbier Janelle Barbier By ernail to Janellebarbier@gmail.com
1204 66th Street 1204 66th Street
Emeryville, CA 94608 Oakland, CA 94608
2) By MAL and By email to danellebarbleregmail.com
[2] “ deposited such envelope in the mall at San Francisco , California.
The envelope was mailed with postage thereon fully prepaid.
(—) As follows: | am “readily familiar’ with the firm's practice of collection and processing correspondence for mailing. Under
that practice it would-be deposited with U.S. postal service on that same day with postage thereon fully prepaid at
California in the ordinary course of business. | am aware that on motion of the
party served, service is preeumed invalid if postal cancellation date-or postage meter date is more than one day after date of
deposit for mailing in affidavit.
Executed on 1/25/2021 vat Sah Francisco , California:
Cad “(BY PERSONAL SERVICE) | delivered such envelope by hand to the offices of the addressee.
Executed oh at ; California.
(2) (State) | declare under penalty of perjury under the laws of the State of California that the above is true and correct,
(23 (Federal) | declare that | am employed In the office of ¢ member of the bar of th ohGNrere stiotr the service was
made. 4
Patrick Wao... soualeiniinnetbiniiunenmnneestitanstaniecdtels a t
TYPE OR PRINT NAME \ \ "SIGNATURE
“BY NOMEL. SIGNATURE MUST BE OF PERSON DEPOSITING ENVELOPE IN.
AIS SLOT: BOX, OF BAG)
“(FOR PERSONAL SERVICE SIGNATURE MUST BE THAT OF MESSENGER)
NONJO-O48 (Rav, O1/01/2011) VERIFICATIONIPROOF OF SERVICE
“E[Y | Essential
Preview
From: Margie Raetz Fax: 15105763300 To: Fax: (510) 267-1547 Page: 2 of 6 01/26/2021 2:52 PM FILED BY FAX Desier i (SBN 169159) ALAMEDA-COUNTY aniel Bormstein | Daniel Cheung (SBN 264971) danuary 26, 2024 2 || Bornstein Law THE SUPERIOR COURT : merges eae 507 Polk Street, Suite 310 By Lynn Wiley, Deputy erepnone: : RG20079393 # || Pacsimile: (415) 463-2349 5 ~ || Attorneys for Plaintiff 6 | JOHN H.LEE 7 8g SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF ALAMEDA 10 UNLIMITED JURISDICTION 1 | JOHN HL LEE, ) Case No.: RG20079393 12 ) Plaintiff, )} MEMORANDUM OF POINTS AND 13 )}- AUTHORITIES OF PLAINTIFF IN id VS. }- OPPOSITION TO DEMURRER TO ) COMPLAINT FOR MONEY 15 | JANELLE BARBIER, and DOES I to 10, } inclusive, ) Date: February 22, 2021 16 ) Time: 3:00 pam. 17 Defendants. ) ° Dept. 19 ) 18 19 Plaintiff JOHN H. LEE -(“Plaintiff) opposes the demurter of defendant JANELLE 0 |} BARBIER (“Defendant”), because 1) Defendant owes Plaintiff money for having failed to pay 91 |lrent totaling $26,950, -and 2) Defendant’s debt is not subject to small claims restrictions for 22 || COVID-19 rental debt. 23 24 L BACKGROUND 28 The premises involved are 1204 66" Street, Oakland, CA 94608 (“the premises”) 46 || {Complaint 7 6]. A one-year term lease between Plaintiff and Defendant commenced on July 15, 27 1) 2016, and was renewed annually by subsequent addenda. 28 i Plaintiff's Opposition to Dermurrer to Complaint From: Margie Raetz Fax: 15105763300 To: Fax: (510) 267-1547 Page: 3 of 6 01/26/2021 2:52 PM i Defendant failed and contintied to refuse to pay monthly rent of $3,850 for each month 2 || from April 2020 to October 2020 when this lawsuit was filed, and still continues to fail to pay 3 j}rent. 4 Plaintiff has demanded payment pursuant to the rental agreemerit, but-Defendant has 5 || refused to pay. Plaintiff requests that the Court take judicial notice of the Complaint on file with this Court. ee) IL. LEGAL ARGUMENT on A defnurrercan be used only to challenge defects that appear on the face of the pleading 10 |} under attack; or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan 11 4}(1985) 39 Cal. 3d 311, 318; Donabedian v. Mercury Ins. Co, 004) 116 Cal. App.4th 968, 994, 12 | A demurrer must admit.the truth of all material facts properly pleaded: Aubrey v. Tri-City 13 || Hospital Dist. (1992) 3 Cal. 4th 962, 966-67, 14 Accofding to Hale v. Sharp Héaltheare (2010) 183 Cal. App.4th 1373, 1386, in 15 || determinitig a demurrer, the court must interpret the complaint reasonably, reading it as’a whole 16 |} and the parts in context. See also Stearn v. Couniy of San Bernardino (2009) 170 Cal. App.4th 17 | 434, 439: CrossTalk Productions, inc. v,. Jacobson (1998) 65 Cal. App.4th 631,635, Further, 18° || “[the court must, in every stage of an action, diregard any defect in the pleadings which does 19 || not affect the substantial rights of the parties.” Hill v.-City of Santa Barbara (1961) 196 20 (Cal. App.2d 580, 585. For purposes of the demurrer, Defendant admits all facts well-pleaded, 21 || however improbable the allegations may be. Woedreo/’ v. Howes (1891) 88 Cal. 184, 189; 22 || Hitson v. Dwyer (1943) 61 Cal App.2d 803, 807, 23 24 A. Defendant Breached Her Rental Agreement by Failing to Pay Rent 28 for At Least Seven Months 26 Defendant violated the terms of paragraph 38 of the Residential Lease or Month-to- 27 || Month Rental Agreement that states: “b) mionthly rent roust always be paid in full (no partial 28 || payments accepted).” Defendant has not done so. 2 Plaintifi’s Opposition to Demurrer-to Complaint From: Margie Raetz Fax: 15105763300 To: Fax: (510) 267-1547 Page: 4 of 6 01/26/2021 2:52 PM According to California Civil Jury Instructions 303, Plaintiff may recover damages from inet Defendant if 1) the -parties entered into a contracty 2) Plaintiff did all required of him; 3) Be Defendant failed to do something the contract required, i.e. pay rent; 4) Plaintiff was harmed; and Defendant’s breach of contract was a substantial factor in causing Plaintiff's harm, Plaintiff UR undisputedly has pleaded all of these elemerits of-a breach of written contract, Defendant only ter alleges that Plaintiff should not have attempted to collect the debt by filing a lawsuit on OR October 27, 2020, SR The Court must give the Complaint a reasonable interpretation, “treat{ing] the demurrer OO as admitting all material facts properly pleaded,” but does not “assume the truth of contentions, AO deductions or conclusions of law. [Citation]” Aubrey v. Tri-City Hospital Dist. (1992)2 Cal4th Om. 11 1/962, 967. Tt must liberally construe the pleading with a view to substantial justice between the 12 || parties. Xotlar v. Hartford Fire Ins..Co. (2000) 83 Cal App.4th 1116, 1120. 13 14 B. Defendant is Not Entitled to COVID-19 Protection 15 Defendant incorrectly asserts that California Code of Civil Procedure section 116.223 16 || bars Plaintiffs filing of an unlimited jurisdiction case in Superior Court, and that the resulting 17 || Complaint fails to state sufficient facts to support the first and second causes of action for 18 || breach of contract and breach of covénant of good faith and fair dealing, respéctively. 19 Section 116.223(a)\(3) specifically states that it was enacted because it is essential that 20 || parties “have access to a judicial foruni to resolve these disputes expeditiously, inexpensively, 21 jj and fairly,” ie. snvall claims court. The statute eliminatéd the small claims court's jurisdictional 22 || limit for collection of back rent. However, section 116.223(a)(4) merely makes it optional to file 23 |}a small claims lawsuit, and limits it to rent wipaid between March 1, 2020 and January 21, 24 |} 2021. 25 Plaintiff is not barred by this statute as he has chosen to file his lawsuit ia this Court of 26 |) unlimited jurisdiction” and is ~seekitig ptincipal damages of $26,950 — in excess of the 27 |) jurisdictional minimum of $25,000 for an unlimited civil action, Cal. Civ. Proc. Code section 28 || 89(a) states: “The existence of a statute relating to the atithority of the court in a limited crvil 3 Plaintiff's Opposition to Demurrer to Complaint Fax: 15105763300 To: Fax: (510) 267-1547 Page: 5 of 6 01/26/2021 2:52 PM From: Margie Raetz ] |) case does not, by itself, imply that the sarne authority does or does not exist in-an unlimited civil 2 || case.” Thus, in filing an unlimited civil case, Plaintiff is not constrained fo small claims court in 3 J attempting to obtain judgment on a debt for contractual rént that arose during any ‘specific 4 || petiod. 5 Specifically, while Cal) Civ: Proc, Code section 116.223(b)(3). bars commencement of 6 |/an action to recover rent debt using the smiall clainis procedure before March 1, 2021, Plaintiff 7 |/has not availed himself of the optional small claims procedure to recover the $26,950 in 8 | principal payments ori which Defendant has defaulted. Defendant has not alleged the existence 9 || of any restrictions on filing an wrilimited civil case. 10 il it. CONCLUSION 12 For all thé foregoing reasoris, Plaintiff JOHN H. LEE respectfully requests that the Court 13 || overrule the demurrer of Defendant and require Defendant to answer, only, within five days of 14 || service of notice of ruling. 15 16 Dated: January 21,2021 Respectfully submitted, 17 Hypaneigyy Law 18 19 By: . i Daniel M. Bornstein 20 Attorneys for Plaintift JOHN H. LEE BlaindfPs Opposition to Demurrerto Complaint” From: Margie Raetz Fax: 15105763300 To: Fax: (510) 267-1547 Page: 6 of 6 01/26/2021 2:52 PM VERIFICATION STATE OF CALIFORNIA, COUNTY OF ~ San Francisco | have read the foregoing and know ils contents. a ["") GHECK APPLICABLE PARAGRAPHS (J | ain a party to this action. The matters stated in thé foregoing docunient are true of my own knowledge except as to those matters which are stated on information and belief, and as to those rnatters | belleve them to be true, EC") bam C2) an Officer (CC) -a partner Cla of : a party to this action, and ani authorized to make this verification for and on its behalf, and | make this verification for that reason. (Cl) J am informed and believe ‘and on that ground allege that the matters stated in the foregoing document are true, . (The matters stated in the foregoing document are true of my own knowlédge except as to thase matters which are stated on information and belief, and ag to those matters | believe them to be true. Kl] tam one of the attorneys for : a party to this action. Such party is absent from the county of aforesaid where such attorneys have their offices, and | make this verification for and-on behalf of that party for that reason. | am Informed and belleve and on that ground allege that the matters stated In the foregoing document are true. Executed an ; at ; California. 1 declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. TYPE OR PRINT NAME SIGNATURE PROOF OF SERVICE 41013a (3) CCP Revised. 2004 STATE OF CALIFORNIA; COUNTY OF . San Francisco | arm employed in the county of San Francisco | State of California. lam over the age of 18 and not a party to the within action; my business address is: 507 Polk Street, Suite 310, San Francisco, CA 94102 on 91/28/2021 _| gerved the foregoing document described as Memorandum of points and authorities of plaintiff in opposition to demurrer to complaint for money. on - Defendant in this action C5] by placing the true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list: [XE] by placing - Co) the original . [EJ a true copy thereof enclosed in sealed envelopes addressed as follows; Janelle Barbier Janelle Barbier By ernail to Janellebarbier@gmail.com 1204 66th Street 1204 66th Street Emeryville, CA 94608 Oakland, CA 94608 2) By MAL and By email to danellebarbleregmail.com [2] “ deposited such envelope in the mall at San Francisco , California. The envelope was mailed with postage thereon fully prepaid. (—) As follows: | am “readily familiar’ with the firm's practice of collection and processing correspondence for mailing. Under that practice it would-be deposited with U.S. postal service on that same day with postage thereon fully prepaid at California in the ordinary course of business. | am aware that on motion of the party served, service is preeumed invalid if postal cancellation date-or postage meter date is more than one day after date of deposit for mailing in affidavit. Executed on 1/25/2021 vat Sah Francisco , California: Cad “(BY PERSONAL SERVICE) | delivered such envelope by hand to the offices of the addressee. Executed oh at ; California. (2) (State) | declare under penalty of perjury under the laws of the State of California that the above is true and correct, (23 (Federal) | declare that | am employed In the office of ¢ member of the bar of th ohGNrere stiotr the service was made. 4 Patrick Wao... soualeiniinnetbiniiunenmnneestitanstaniecdtels a t TYPE OR PRINT NAME \ \ "SIGNATURE “BY NOMEL. SIGNATURE MUST BE OF PERSON DEPOSITING ENVELOPE IN. AIS SLOT: BOX, OF BAG) “(FOR PERSONAL SERVICE SIGNATURE MUST BE THAT OF MESSENGER) NONJO-O48 (Rav, O1/01/2011) VERIFICATIONIPROOF OF SERVICE “E[Y | Essential