Request,Application: Yen VS Mosser

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                                1    JOHN M. NEUKOM (SBN 275887)
      john.neukom@skadden.com
 2    ABRAHAM A. TABAIE (SBN 260727)
      abraham.tabaie@skadden.com
 3    SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
      525 University Avenue, Suite 1400
 4    Palo Alto, California 94301
      Telephone: (650) 470-4500
 5    Facsimile: (650) 470-4570
 6    RAZA RASHEED (SBN 306722)
      raza.rasheed@skadden.com
 7    SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
      300 South Grand Avenue, Suite 3400
 8    Los Angeles, California 90071-3144
      Telephone: (213) 687-5000
 9    Facsimile: (213) 687-5600
10    Attorneys for Yardi Systems, Inc. and YES Energy Management, Inc.
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                         SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
                               COUNTY OF ALAMEDA – OAKLAND
13                                ADMINISTRATION BUILDING
14                           1221 OAK STREET – OAKLAND, CA 94612

15    ANDREW YEN, JAMES BALL, KAITLIN                        Case No.: RG21-100261
      BLANCO, and MELINA TESSIER, on behalf
16                                                           DEFENDANTS YARDI SYSTEMS,
      of themselves and all others similarly situated,       INC.’S AND YES ENERGY
17                                                           MANAGEMENT, INC.’S REQUEST
                     Plaintiffs,                             FOR JUDICIAL NOTICE
18
      v.                                                     Date: March 22, 2022
19                                                           Time: 10:00 a.m.
      NEVEO MOSSER, THE MOSSER                               Dep’t: 21
20    COMPANIES, INC., 553 SYCAMORE                          Judge: Hon. Evelio Grillo
      STREET ASSOCIATES, LP, 1428 JACKSON                    Second Am. Complaint Filed: Dec. 3, 2021
21    STREET ASSOCIATES, LP, CONSERVICE,
      LLC, FPI MANAGEMENT, INC., OAK9                        RESERVATION ID: 774512897603
22    PORTFOLIO OWNER, LP, OAK 406 VAN
      BUREN AVE PROPERTY, LLC, OAK-553
23    SYCAMORE, LLC, OAK 1425 HARRISON
      STREET PROPERTY, LLC, OAK-1428
24    JACKSON, LLC, PACH AFFORDABLE
      HOLDINGS, LLC, YARDI SYSTEMS, INC.,
25    YES ENERGY MANAGEMENT, INC.,
      DOES one through five hundred,
26
                     Defendants.
27

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                                                         1
     DEFENDANTS YARDI SYSTEMS, INC.’S AND YES ENERGY MANAGEMENT, INC.’S
     REQUEST FOR JUDICIAL NOTICE                                                     Case No. RG21-100261
 1         TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
 2         Pursuant to California Civil Procedure Code §§ 430.30(a), 430.70, and 437, California
 3 Evidence Code §§ 452 and 453, and California Rules of Court 3.1113(l) and 3.1306(c), Defendants

 4 Yardi Systems, Inc. and YES Energy Management, Inc. (“Defendants”) hereby request that, in

 5 considering the Defendants’ Demurrer to and Motion to Strike (“Demurrer”) the Second Amended

 6 Complaint (“2AC”), the Court take judicial notice of Exhibits 1 and 2 attached to the Declaration of

 7 Raza Rasheed:

 8         Exhibit 1: A true and correct screen capture from Defendant’s Yardi’s website entitled
 9 “Utility Billing,” and available at https://www.yardi.com/products/utility-billing. This is the same

10 screen capture that Plaintiffs incorporated by reference at paragraph 41 of the Second Amended

11 Complaint.

12         Exhibit 2: A true and correct PDF from Defendant’s Yardi’s website entitled “Mosser
13 Companies on Yardi Utility Billing,” and available at https://www.yardi.com/about-us/success-

14 stories/mosser-companies-yardi-utility-billing. This is what a person sees if they click on the link

15 scripted as “See how Mosser Companies does it” in the screen capture reproduced at paragraph 41

16 of the Second Amended Complaint.

17                       MEMORANDUM OF POINTS AND AUTHORITIES
18         In considering a demurrer, a court may consider the complaint, any documents it attaches or
19 references, and any document of which the court may take judicial notice. See Cal. Civ. Proc. Code

20 § 430.30(a) (providing that a demurrer may be based on a defect that “appears on the face [of the

21 complaint], or from any matter of which the court is required to or may take judicial notice”); Id. §

22 437; McBride v. Smith, 18 Cal. App. 5th 1160, 1173 (2018) (noting that courts may consider

23 “exhibits attached to or referenced in the complaint”).

24         The Court should consider the contents of Exhibits 1 and 2 because these documents are
25 referenced, cited, and/or quoted in the 2AC. (See 2AC ¶ 41.) “If the allegations in the complaint

26 conflict with the facts included in exhibits attached to or referenced in the complaint,” courts “rely

27 on and accept as true the contents of the exhibits.” McBride, 18 Cal. App. 5th at 1173; see also

28 Ingram v. Flippo, 74 Cal. App. 4th 1280, 1285 n.3 (1999) (“Since the contents of the letter and media
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     DEFENDANTS YARDI SYSTEMS, INC. AND YES ENERGY MANAGEMENT, INC.
     REQUEST FOR JUDICIAL NOTICE                                                     Case No. RG21-100261
 1 release form the basis of the allegations in the complaint, it is essential that we evaluate the complaint

 2 by reference to these documents.”); In re NVIDIA Corp. Sec. Litig., 768 F.3d 1046, 1058 n.10 (9th

 3 Cir. 2014) (“Once a document is deemed incorporated by reference, the entire document is assumed

 4 to be true for purposes of a motion to dismiss, and both parties—and the Court—are free to refer to

 5 any of its contents.”)

 6          Here, Plaintiffs incorporated a screen capture from Exhibit 1 into paragraph 41 of the 2AC,
 7 and quote the text of the web link leading to Exhibit 2 as evidence that Defendants are fraudulently

 8 inflating utility bills sent to Plaintiffs. 2AC ¶¶ 41, 187-188. Having quoted and cited those

 9 documents, and having based entire claims on the contents of these documents, Plaintiffs should not

10 be permitted to ask the Court to ignore the portions of these documents that defeat Plaintiffs’ claims.

11 Instead, the Court should consider the full content of these documents in ruling on the Demurrer.

12

13 DATED: January 21, 2022                            Respectfully submitted,

14                                                    By:            /s/ John M. Neukom
                                                                     JOHN M. NEUKOM
15                                                                  Attorneys for Defendants

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     DEFENDANTS YARDI SYSTEMS, INC. AND YES ENERGY MANAGEMENT, INC.
     REQUEST FOR JUDICIAL NOTICE                                                         Case No. RG21-100261