Party Statement: Yen VS Mosser

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     L. THEODORE SCHELEY III., ESQ. (BAR NO.                 148916)
     tscheley(@clappmoroney.com
     X. JACKSON ZHOU, ESQ. (BAR NO. 278160)
     xzhou(@clappmoroney.com                                                        FILED
     CLAPP, MORONEY, VUCINICH, BEEMAN and SCHELEY                                ALAMEDA COUNTY
     A PROFESSIONAL CORPORATION
     1111 Bayhill Drive, Suite 300                                                   OCT 05 2021
     San Bruno, CA    94066                                                 CLERK OF     kant    1OR COURT
     (650) 989-5400 (650) 989-5499 FAX                                      By           Ah:             Say

     Attorneys for Defendants
     NEVEO MOSSER, MOSSER COMPANIES, INC.,
bo




     553 SYCAMORE STREET ASSOCIATES, LP,
     1428 JACKSON STREET ASSOCIATES, LP,
     OAK 406 VAN BUREN AVE PROPERTY, LLC,
     OAK-553 SYCAMORE, LLC,
10   OAK 1425 HARRISON STREET PROPERTY, LLC and OAK-1428 JACKSON, LLC

11                       SUPERIOR COURT OF THE STATE OF CALIFORNIA

12                COUNTY OF ALAMEDA - UNLIMITED CIVIL JURISDICTION
13

14   ANDREW YEN; JAMES BALL; KAITLIN                         Case No. RG21100261
     BLANCO, and MELINA TESSIER, on behalf of                         ;                 ;     a
15
     themselves and all others similarly situated,           Case Assigned to Hon. Evelio Grillo in
                                                             Dept. 21 for All Purposes
16
                     Plaintiffs,                             DECLARATION OF X. JACKSON ZHOU
17
                                                             IN SUPPORT OF DEFENDANTS NEVEO
     VS.
18                                                           MOSSER, MOSSER COMPANIES, INC.,
     NEVEO MOSSER; THE MOSSER                                553 SYCAMORE STREET ASSOCIATES,
19   COMPANIES, INC.; 553 SYCAMORE                           LP, 1428 JACKSON STREET
     STREET ASSOCIATES, LP; 1428 JACKSON                     ASSOCIATES, LP, OAK 406 VAN BUREN
20
     STREET ASSOCIATES, LP; CONSERVICE,                      AVE PROPERTY, LLC, OAK-553

21   LLC; FPI MANAGEMENT, INC.; OAK9                         SYCAMORE, LLC, OAK 1425 HARRISON
     PORTFOLIO OWNER, LP; OAK 406 VAN                        STREET PROPERTY, LLC AND OAK-1428
22   BUREN AVE PROPERTY, LLC; OAK-553                        JACKSON, LLC’S DEMURRER TO
     SYCAMORE, LLC; OAK 1425 HARRISON                        PLAINTIFFS’ FIRST AMENDED
23   STREET PROPERTY, LLC; OAK-1428                          COMPLAINT
     JACKSON, LLC; PACH AFFORDABLE             .
24   HOLDINGS, LLC; YARDI SYSTEMS, INC; | pate: Oovober22, 2021
25
     YES ENERGY MANAGEMENT, INC.; DOES | pept: 21
     one through five hundred,                               Judge: Hon. Evelio Grillo
26
                     Defendants.                             Complaint filed: 05/25/2021
27                                                           First Amended Complaint filed: 06/28/2021

28                                                           Trial date: None Set
                                                             RESERVATION ID: R-2297593

                                                         ]
     DECLARATION OF X. JACKSON ZHOU IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
                   I, X. Jackson Zhou, declare:

                   1.       I am an attorney at law, licensed to practice before all of the Courts of the state of

        California and am an attorney at Clapp, Moroney, Vucinich, Beeman and Scheley, counsel of

        record for Defendants Neveo Mosser, Mosser Companies, Inc., 553 Sycamore Street Associates,

        LP,   1428      Jackson   Street Associates,   LP,   Oak   406   Van     Buren   Ave   Property,   LLC,   Oak-553

        Sycamore, LLC, Oak 1425 Harrison Street Property, LLC, and Oak-1428 Jackson, LLC.                           I have
  W




        personal knowledge of the facts stated herein and, if called as witness, could competently testify
  nN




        thereto.
  ©




                   2.       On September 22, 2021, I wrote a correspondence via email to Robert Salinas,
  oOo




  10    counsel to Plaintiffs in this lawsuit, concerning the grounds for demurrers to be brought by the

  iv    Mosser Defendants in the above-captioned matter.                 Said correspondence was followed with a

  12    telephone call on September 24, 2021 with Mr. Salinas.                 At the conclusion of that phone call, the

  13    parties agreed that they had a good faith dispute. A copy of the September 22, 2021 correspondence

  14    is attached hereto as Exhibit 1.

  15               I declare under penalty of perjury under the laws of the State of California that the foregoing

  16    is true and correct, and that this Declaration was executed on September 27, 2021, in San Bruno,

  17    California.

  18
“19                                                                               sa
 20                                                                              X. JACKSON ZHOU, ESQ.
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                                                                   2
        DECLARATION OF X. JACKSON ZHOU IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
EXHIBIT 1
From:                Xiong "Jackson" Zhou
To:                  “bob@ssrplaw.com"
Ce:                  “Diana Lopez"; Linda Carcamo
Subject:             RE: Andrew Yen, et al. v. Neveo Mosser, et al. // Case No. RG21100261
Date:                Wednesday, September 22, 2021 3:11:00 PM
Attachments:         imageQ01.png


Dear Bob:

| write to meet and confer regarding a proposed demurrer and motion to strike on the first
amended complaint for the Yen matter, which we intend to file on behalf of Defendants
NEVEO MOSSER, MOSSER COMPANIES, INC., 553 SYCAMORE STREET ASSOCIATES, LP, 1428
JACKSON STREET ASSOCIATES, LP, OAK 406 VAN BUREN AVE PROPERTY, LLC, OAK-553
SYCAMORE, LLC, OAK 1425 HARRISON STREET PROPERTY, LLC and OAK-1428 JACKSON, LLC
(the “Mosser Defendants”).      The demurrer will be based on the below points and
contentions.   Please let me know if you'd like to schedule a call to further discuss the
substance of this meet and confer, otherwise we plan on filing our demurrer and motion to
strike on Monday, 9/27/21.

The demurrer will demur to all three causes of actions:

First,     Second,   and    Third     Cause     of Action        - Violation       of Oakland’s    Tenant      Protection
Ordinance, Violation of Oakland’s                   Rent Adjustment Ordinance, and Violation of Unfair
Competition Law
Reasoning:           These causes of action do not allege facts sufficient to constitute a claim. Cal.
Civ. Proc. Code § 430.10(e).      Specifically, Plaintiffs’ make claims against the Mosser
Defendants as well as other defendants regarding alleged violation of the alleged prohibition
on splitting the costs of certain housing services in the Oakland Rent Adjustment Program
Ordinance (“RAP”). The complaint alleges that the Mosser Defendants, as well as other
defendants, violated Regulation               10.1.10 of the RAP by allocating costs for water, sewer, and
trash collection to tenants by a usage formula, as expressly agreed by them under the YES
Addendum to their leases. Your clients’ claims are all based on the assumption that water,
sewer and trash services are “utilities.” They are not. Rather, water, sewer, and trash services
are categorized as “Housing Services” under the RAP, which are by definition included in
“Rent.” (Oak. Muni. Code Sec. 8.22.020). Regulation 10.1.10 confirms this by citing the Public
Utilities Code and Rule 18 of PG&E, which apply only to gas and electricity, as the legal basis
for its prohibition on utilities-splitting. RAP Reg. 10.1.10. Given the plain language of the RAP
definitions of “housing services,” and “rent,” along with Regulation 10.1.10, Plaintiffs’ claims
concerning splitting of water, sewer, and trash services lack any basis in law. In addition, the
alleged violations pertain to regulations under these ordinances, and neither of the ordinances
authorize private suits to enforce their pertinent regulations. The UCL claim likewise fails as it
is entirely derivative of Plaintiffs’ claims under the Ordinances.

Our proposed motion to strike will seek to strike punitive damages, attorneys’ fees, and
amounts of damages from Plaintiffs’ Complaint.
Reasoning:     |The Complaint does not state facts sufficient to serve as grounds for the prayer
for punitive damages as against the Mosser Defendants. Further, there are no allegations to
satisfy the requirements            under      Civil Code      §3294(b),       which     sets out that there     must   be
evidence of oppression, fraud, or malice as against an officer, director, or managing agent.
Here, there are no sufficient allegations setting out oppression, fraud, or malice on the part of
any person or defendant. Further, Plaintiffs similarly fail to plead adequate grounds to support
their prayer for attorneys’ fees.

Please let me know if you would like to schedule a call to further discuss the above. Thank you
for your courtesy and cooperation on this matter.
Effective immediately, we        ransitioning to electronic       ission   (email) of al     in
documents. Going forward and until further notice, we will not be transmitting any documents in physical
form. This is an emergency procedure designed to provide the most effective form of communication
without straining public resources.
Xiong “Jackson” Zhou
ATTORNEY
tel: 650-989-5400 | fax: 650-989-5499               | xzhou@clappmoroney.com
1111 Bayhill Drive #300 San Bruno, CA. 94066
                  40   YEARS      STRONG

CLAPP MORONEY Jvucinich [BeeMan SCHELEY
               A PHGECSSIOHAL   AAW   CORPORATION

San Francisco | Peninsula | East Bay/Central Valley | San Jose/Monterey | Sacramento | Los Angeles
Visit our website at www.clappmoreney.com for additional information on Clapp Moroney
FOGG               RIOR     COICO                    CIO GIOIA        IR OI I IC    IC I IOK ICI I A 3 2k 9   ake a ie ak ak 2K ak
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From: Linda Carcamo 
Sent: Friday, September 10, 2021 5:54 PM
To: 'bob@ssrplaw.com' ; ‘lsw@calorganize.org' ;
‘afriedman@sheppardmullin.com’ ;
‘amclean@sheppardmullin.com' ; 'jsakai@sheppardmullin.com'

Ce: 'Diana Lopez' ; Ted Scheley ; Xiong
"Jackson" Zhou 
Subject: Andrew Yen, et al. v. Neveo Mosser, et al. // Case No. RG21100261


Dear Counsel,

Attached is the Stipulation and [Proposed] Order to Extend Defendants Time
to Respond to the Complaint, which has been submitted to the Court for
signature/approval and filing. We will provide a conformed copy upon
receipt.

Should you have any questions, please do not hesitate to contact our office.

Thank you,




Effective immediately, we are     tra          ele    nic                      a             ing
documents. Going forward and until further notice, we will not be transmitting any documents i inn physical
form. This is an emergency procedure designed to provide the most effective form of communicaticn
without straining public resources.



LindaM. Carcamo-
Legal Assistant to L. Theoclore Scheley I,
Jonathan T. Louie and X. Jackson Zhou
CLAPP, MORONEY, VUCINICH, BEEMAN & SCHELEY
N11 Bayhill Drive - Suite 300
San   Bruno, CA        94066
Tel: 650.989.5400, x404
Fax: 630.989.5499
e-mail:      lcarcamo@clappmo:

                 40   VEARS      STRONG

CLAPP MORONEY j VUCINICH               | BEEMAN SCHELEY
              A ORGEESTIONAL   LAG   CORPORATION




San Francisco | Peninsula | East Bay/Central Valley | San Jose/Monterey | Sacramento | Los
Angeles

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