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Electmnitally
Eunmm Eu: Hufimmcmnq H 5m Mua-
Hg.-
D”
8/22/2019
MATTHEW
JOSE M.
A.
HERRERA
HAULK (SBN:
(SBN:
272457)
289590)
B?
MM
RAGGHIANTI FREITAS LLP
1101 Fifth Avenue, Suite 100
San Rafael, California 94901
Telephone: (415) 453-9433
Facsimile: (415)453-8269
Attorneys for Defendants
PUNIT K. SARNA and
PUJA SARNA
SUPERIOR COURT OF THESTATE OF CALIFORNIA
COUNTY OF SAN MATEO
10 LOUIS PAYCHECK, .CASE NO.: 19CIV02595
11
Plaintiff, MEMORANDUM OF POINTS AND
12
AUTHORITIES IN SUPPORT OF
vs. MOTION FOR LEAVE TO FILE
13 AMENDED CROSS-COMPLAINT AND
PUNIT K. SARNA, et a|., AMENDED ANSWER
14
Defendants. DATE: October 9, 2019
15
TIME: 9:00 a.m.
16
DEPT.: 1, Courtroom 4C
JUDGE: Honorable Leland Davis, Ill
17
Complaint Filed: May 10, 2019
18 AND RELATED CROSS—ACTION. Trial Date: Not set.
19
20 INTRODUCTION
21 This case is at its inception. Defendant and Cross-Complainant Punit Sarna and
22 Defendant Puja Sarna have recently substituted counsel and seek leave to file a First
23 Amended Cross—Complaint and a First Amended Answer. This motion is timely and
24 granting this motion will not prejudice any party.
'
25 STATEMENT 0F FACTS
26 This action involves the renovation and remodeling of a residential property
27 located at 721 Rollins Road, Burlingame, California (the “Proper’ty”). Defendant and
28 Cross—Complainant Punit Sarna hired Plaintiff and Cross—Defendant Louis Paycheck
1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO TO FILE AMENDED
CROSS- COMPLAINT AND AMENDED ANSWER
doing business as European Enterprises (“European Enterprises”) to perform renovations
and remodeling work at the Property (the “Project”).
European Enterprises used an illegal home improvement contract, it breached its
common law and contract duties, and itabandoned the Project without legal excuse. As a
pre-emptive strike, European Enterprises recorded a mechanic’s lien against the
Property. On May 10, 2019, European Enterprises filed this action to enforce the lien and
alleges damages of $32,575.
On July 11, 2019, the Sarnas filed Answers to the European Enterprise Complaint,
and Punit Sarna filed a Cross-Complaint. At that time, the Sarnas were represented by
1O Cathleen Curl, Esq. On August 7, 2019, the Sarnas substituted counsel and are now
11 represented by Matthew Haulk, Esq., Ragghianti Freitas, LLP.
12 Punit Sérna requests leave to file a First Amended Cross—Complaint. The First
13 Amended Cross-Complaint contains minor revisions throughout the body of the pleading,
14 and itadds the following causes of action: (1) Disgorgement (Bus. & Prof. Code § 7031);
15 (2).Disgorgement/Restitution (Bus. & Prof. Code § 17200); (3) Unfair Business Practices
16 (Bus. & Prof. Code § 17200). The Sarnas also seek leave to file a First Amended
17 Answer. The First Amended Answer contains a general denial and ah additional
affirmative defense based on European Enterprises’ statutory right to bring this action.
18
19 STANDARD OF REVIEW
20 The court may, in further of justice, and on any terms that may be proper, allow a
subdivision “Ifthe
21 party'to amend in any pleading. (Code ofCiv. Proc. § 473, (a)(1)).
motion to amend is timely made and the granting of the motion will not prejudice the
,22
23 opposing party, itis error to réfuse permission to amend and where the refusal also
results in a party being deprived of thé right to assert a meritorious cause of action or a
24
25 meritorious defense, itis not only error but an abuse of discretion.” (Morgan v. Sup. Ct.
A
26 (Morgan) (1959) 172 Cal.App.2d 527, 530).
27 ///
28 ///
2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO TO FILE AMENDED
CROSS-COMPLAINT AND AMENDED ANSWER
LEGAL ARGUMENT
1. Punit Sarna Seeks Leave to File a First Amended Cross-Complaint.
Punit Sarna seeks leave to filea First Amended Cross—Complaint. The First
Amended Cross-Complaint contains stylistic modifications throughout the body of the
pleading, itclarifies that Punit Sarna reserves the right to declare the parties’ oral contract
to be void, it adds four causes of action, and itadds additional requests for relief.These
changes, except for the stylistic changes, are identified below:
a. Stylistic Changes: In Passim
b. Reservation of Right to Declare the Parties’ Oral Contract Void (Page 3:20—
‘
'
10 4:04; 13:27-14:01; 1m 9 and 52);
‘11 Sixth Cause of Action: Disgorgement - Bus. & Prof. Code § 7031 (Page
12 11:01-12:22; 1m 40—46);
13 Seventh Cause of Action: Disgorgement/Restitution - Bus. & Prof. Code §
14 7159 (Page 13:12-14:16; 111] 50 — 54);
15 Eighth Cause of Action: Disgorgement/Restitution (Bus. & Prof. Code §
16 17200) (Page 14:17—15:17; 111]55-62);
17 Prayer for Relief: For General Damages, according to proof (p.16:16, 1] 1);
18 Prayer for Relief: For Special Damages, according to proof (p.16:17, 1] 2);
19 'Prayer for Relief: For Disgorgement under Bus. & Prof. Code § 7031 of
20 approximately $210,000, according to proof (p. 16:18-16:21, 113).
21 Prayer for Relief: For Disgorgement/Restitution under Bus. & Prof. Code §
22 71 59 of approximately 210,000 according to proof (p.16:22-16:27, 114).
23 Prayer fo'r Relief: For penalties under Bus. & Prof. Code § 7160 (p. 16:28—
24 17:O1, 115).
25 Prayer for Relief: For punitive and exemplary damages (p.17202, 11 6);
Prayer for Relief: For interest at the legally allowable rate (p. 17:03, 1]7);
26
27 Prayer for Relief: For attorney’s fees and costs (p.17104, ‘fl8);
28 Prayer for Relief: For Injunctive Relief (p.17:O5-17:07; 1] 9);
3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO TO FILE AMENDED
CROSS- COMPLAINT AND AMENDED ANSWER
o. Prayer for Relief: Any further relief deemed proper by the court (p.17:08, 1]
10).
This case is in its infancy. European Enterprises will suffer no prejudice as a result
of the addition of these causes of action or any of the other revisions to the Cross-
Complaint. The additional causes of action are necessary and proper to allow Punit
Sarna to obtain injunctive relief and to recover all of the damages he has suffered a result
of European Enterprises wrongful acts related to the subject matter of this action in a
single lawsuit.
2. The Sarnas Seek Leave to File a First Amended Answer.
10 The Sarnas seek leave to file a First Amended Answer to add an additional
11 affirmative defense based on European Enterprises statutory capacity to sue, including
12 but not limited f0, its status as an unlicensed contractor. This amendment is necessary
13 and proper to ensure that th‘e Sarnas are able to raise all valid defenses and to avoid any
14 surprise at trial. European Enterprises will suffer no prejudice as a result of this
15 Amendment. The First Amended Answer adds an Eighteenth Affirmative Defense at
16 Page 4, line 19-23.
17 CONCLUSION
18 The Sarnas respectfully request leave to amend their pleadings as discussed
19 above, and an order that the pleadings be deemed filed and served as of the date ofthe
20 granting of this Motion.
21 Dated: August 10 ,
2019 RAGGHIANTI FREITAS LLP
22
By:
23 MATTHEW A. HAULK
24
Attorneys for Defendants
25 PUNIT K. SARNA and PUJA SARNA
26
27
28
4
MEMORANDUM OF POINTS AND AUTHORITIES lN SUPPORT OF MOTION FOR LEAVE TO TO FILE AMENDED
CROSS-COMPLAINT AND AMENDED ANSWER
Preview
Electmnitally Eunmm Eu: Hufimmcmnq H 5m Mua- Hg.- D” 8/22/2019 MATTHEW JOSE M. A. HERRERA HAULK (SBN: (SBN: 272457) 289590) B? MM RAGGHIANTI FREITAS LLP 1101 Fifth Avenue, Suite 100 San Rafael, California 94901 Telephone: (415) 453-9433 Facsimile: (415)453-8269 Attorneys for Defendants PUNIT K. SARNA and PUJA SARNA SUPERIOR COURT OF THESTATE OF CALIFORNIA COUNTY OF SAN MATEO 10 LOUIS PAYCHECK, .CASE NO.: 19CIV02595 11 Plaintiff, MEMORANDUM OF POINTS AND 12 AUTHORITIES IN SUPPORT OF vs. MOTION FOR LEAVE TO FILE 13 AMENDED CROSS-COMPLAINT AND PUNIT K. SARNA, et a|., AMENDED ANSWER 14 Defendants. DATE: October 9, 2019 15 TIME: 9:00 a.m. 16 DEPT.: 1, Courtroom 4C JUDGE: Honorable Leland Davis, Ill 17 Complaint Filed: May 10, 2019 18 AND RELATED CROSS—ACTION. Trial Date: Not set. 19 20 INTRODUCTION 21 This case is at its inception. Defendant and Cross-Complainant Punit Sarna and 22 Defendant Puja Sarna have recently substituted counsel and seek leave to file a First 23 Amended Cross—Complaint and a First Amended Answer. This motion is timely and 24 granting this motion will not prejudice any party. ' 25 STATEMENT 0F FACTS 26 This action involves the renovation and remodeling of a residential property 27 located at 721 Rollins Road, Burlingame, California (the “Proper’ty”). Defendant and 28 Cross—Complainant Punit Sarna hired Plaintiff and Cross—Defendant Louis Paycheck 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO TO FILE AMENDED CROSS- COMPLAINT AND AMENDED ANSWER doing business as European Enterprises (“European Enterprises”) to perform renovations and remodeling work at the Property (the “Project”). European Enterprises used an illegal home improvement contract, it breached its common law and contract duties, and itabandoned the Project without legal excuse. As a pre-emptive strike, European Enterprises recorded a mechanic’s lien against the Property. On May 10, 2019, European Enterprises filed this action to enforce the lien and alleges damages of $32,575. On July 11, 2019, the Sarnas filed Answers to the European Enterprise Complaint, and Punit Sarna filed a Cross-Complaint. At that time, the Sarnas were represented by 1O Cathleen Curl, Esq. On August 7, 2019, the Sarnas substituted counsel and are now 11 represented by Matthew Haulk, Esq., Ragghianti Freitas, LLP. 12 Punit Sérna requests leave to file a First Amended Cross—Complaint. The First 13 Amended Cross-Complaint contains minor revisions throughout the body of the pleading, 14 and itadds the following causes of action: (1) Disgorgement (Bus. & Prof. Code § 7031); 15 (2).Disgorgement/Restitution (Bus. & Prof. Code § 17200); (3) Unfair Business Practices 16 (Bus. & Prof. Code § 17200). The Sarnas also seek leave to file a First Amended 17 Answer. The First Amended Answer contains a general denial and ah additional affirmative defense based on European Enterprises’ statutory right to bring this action. 18 19 STANDARD OF REVIEW 20 The court may, in further of justice, and on any terms that may be proper, allow a subdivision “Ifthe 21 party'to amend in any pleading. (Code ofCiv. Proc. § 473, (a)(1)). motion to amend is timely made and the granting of the motion will not prejudice the ,22 23 opposing party, itis error to réfuse permission to amend and where the refusal also results in a party being deprived of thé right to assert a meritorious cause of action or a 24 25 meritorious defense, itis not only error but an abuse of discretion.” (Morgan v. Sup. Ct. A 26 (Morgan) (1959) 172 Cal.App.2d 527, 530). 27 /// 28 /// 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO TO FILE AMENDED CROSS-COMPLAINT AND AMENDED ANSWER LEGAL ARGUMENT 1. Punit Sarna Seeks Leave to File a First Amended Cross-Complaint. Punit Sarna seeks leave to filea First Amended Cross—Complaint. The First Amended Cross-Complaint contains stylistic modifications throughout the body of the pleading, itclarifies that Punit Sarna reserves the right to declare the parties’ oral contract to be void, it adds four causes of action, and itadds additional requests for relief.These changes, except for the stylistic changes, are identified below: a. Stylistic Changes: In Passim b. Reservation of Right to Declare the Parties’ Oral Contract Void (Page 3:20— ‘ ' 10 4:04; 13:27-14:01; 1m 9 and 52); ‘11 Sixth Cause of Action: Disgorgement - Bus. & Prof. Code § 7031 (Page 12 11:01-12:22; 1m 40—46); 13 Seventh Cause of Action: Disgorgement/Restitution - Bus. & Prof. Code § 14 7159 (Page 13:12-14:16; 111] 50 — 54); 15 Eighth Cause of Action: Disgorgement/Restitution (Bus. & Prof. Code § 16 17200) (Page 14:17—15:17; 111]55-62); 17 Prayer for Relief: For General Damages, according to proof (p.16:16, 1] 1); 18 Prayer for Relief: For Special Damages, according to proof (p.16:17, 1] 2); 19 'Prayer for Relief: For Disgorgement under Bus. & Prof. Code § 7031 of 20 approximately $210,000, according to proof (p. 16:18-16:21, 113). 21 Prayer for Relief: For Disgorgement/Restitution under Bus. & Prof. Code § 22 71 59 of approximately 210,000 according to proof (p.16:22-16:27, 114). 23 Prayer fo'r Relief: For penalties under Bus. & Prof. Code § 7160 (p. 16:28— 24 17:O1, 115). 25 Prayer for Relief: For punitive and exemplary damages (p.17202, 11 6); Prayer for Relief: For interest at the legally allowable rate (p. 17:03, 1]7); 26 27 Prayer for Relief: For attorney’s fees and costs (p.17104, ‘fl8); 28 Prayer for Relief: For Injunctive Relief (p.17:O5-17:07; 1] 9); 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO TO FILE AMENDED CROSS- COMPLAINT AND AMENDED ANSWER o. Prayer for Relief: Any further relief deemed proper by the court (p.17:08, 1] 10). This case is in its infancy. European Enterprises will suffer no prejudice as a result of the addition of these causes of action or any of the other revisions to the Cross- Complaint. The additional causes of action are necessary and proper to allow Punit Sarna to obtain injunctive relief and to recover all of the damages he has suffered a result of European Enterprises wrongful acts related to the subject matter of this action in a single lawsuit. 2. The Sarnas Seek Leave to File a First Amended Answer. 10 The Sarnas seek leave to file a First Amended Answer to add an additional 11 affirmative defense based on European Enterprises statutory capacity to sue, including 12 but not limited f0, its status as an unlicensed contractor. This amendment is necessary 13 and proper to ensure that th‘e Sarnas are able to raise all valid defenses and to avoid any 14 surprise at trial. European Enterprises will suffer no prejudice as a result of this 15 Amendment. The First Amended Answer adds an Eighteenth Affirmative Defense at 16 Page 4, line 19-23. 17 CONCLUSION 18 The Sarnas respectfully request leave to amend their pleadings as discussed 19 above, and an order that the pleadings be deemed filed and served as of the date ofthe 20 granting of this Motion. 21 Dated: August 10 , 2019 RAGGHIANTI FREITAS LLP 22 By: 23 MATTHEW A. HAULK 24 Attorneys for Defendants 25 PUNIT K. SARNA and PUJA SARNA 26 27 28 4 MEMORANDUM OF POINTS AND AUTHORITIES lN SUPPORT OF MOTION FOR LEAVE TO TO FILE AMENDED CROSS-COMPLAINT AND AMENDED ANSWER