1 SAMUEL J. MUIR (SBN 89883) STEPHEN B. LITCHFIELD (SBN … · 2016. 7. 11. · Good cause exists to hear this matter on an ex parte basis because the earliest date that the Court

19010 – EX PARTE APP RE MTN TO STRIKE TAC ON 03-29-16 1

MVE EX PARTE RE MOTION TO STRIKE PLAINTIFF’S TAC

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28 Collins Collins Muir + Stewart LLP 1999 Harrison Street Suite 1700 Oakland, CA 94612 Phone (510) 844-5100 Fax (510) 844-5101

SAMUEL J. MUIR (SBN 89883) STEPHEN B. LITCHFIELD (SBN 284951) COLLINS COLLINS MUIR + STEWART LLP 1999 Harrison Street, Suite 1700 Oakland, CA 94612 (510) 844-5100 – FAX (510) 844-5101 Attorneys for Defendant McLARAND VASQUEZ EMSIEK & PARTNERS, INC., MVE & PARTNERS, INC., and MVE + PARTNERS, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SANTA CLARA —DOWNTOWN DISTRICT

CILKER APARTMENTS, LLC, Plaintiffs, vs. WESTERN NATIONAL CONSTRUCTION, MCLARLAND, VARQUEZ & PARTNERS, INC., GROUP M ENGINEERS, GENTRY ASSOCIATES CONSTRUCTION CONSULTANTS, LARCO INDUSTRIES, FITCH PLASTERING, COURTNEY WATERPROOFING, CELL CRETE, LOS NIETOS CONSTRUCTION, MADERA FRAMING, KELLY DOOR, TARA COATNGS, LDI, ADM PAINTING, ALLIANCE BUILDING PRODUCT, JOS. J. ALBANESE, ANDERSON TRUSS, CALIFORNIA CLASSIC PAVERS, CASEY-FOGIL CONCRETE CONTRACTORS, CENTRAL COAST STAIRS, COMMERCIAL ROOF MANAGEMENT, DAVEY ROOFING, INC., DEMETRIS PAINTING II, INC., DOORWAY MFG., LANDSCAPE PROS, MULTI-BUILDING STRUCTURES, PARK WEST, PYRAMID BUILDERS, ROBECKS WELDING & FABRICATION, RYLOCK COMPANY, SUMMIT WINDOW & PATIO DOOR, VANGUARD and DOES 1-100, inclusive,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO. 1-13-CV-258281 Complex [Assigned to Hon. Peter H. Kirwan; Dept. 1] DEFENDANTS McLARAND VASQUEZ EMSIEK & PARTNERS, INC, MVE & PARTNERS, INC., AND MVE + PARTNERS, INC.’S EX PARTE APPLICATION TO STRIKE PLAINTIFF’S THIRD AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF STEPHEN B. LITCHFIELD (Filed concurrently with [Proposed] Order) Date: March 29, 2016 Time: 3:00 p.m. Dept.: 1 Complaint Filed: 12/26/13 FAC Filed: 03/20/14 SAC Filed: 09/25/15 Trial Date: 06/13/16

E-FILEDMar 28, 2016 1:17 PM

David H. YamasakiChief Executive Officer/Clerk

Superior Court of CA, County of Santa ClaraCase #1-13-CV-258281 Filing #G-82290

By C. Pinacate, Deputy



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Defendants. _____________________________________

) )

WESTERN NATIONAL CONSTRUCTION, Cross-Complainant, vs. ROES 1 – 500, inclusive, Cross-Defendants.

) ) ) ) ) ) ) ) ) )

TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN:

PLEASE TAKE NOTICE that on March 29, 2016 at 3:00 p.m., or as soon thereafter as the

matter may be heard in Department 1 of the above captioned court, located at 191 N. First Street,

San Jose, California, Defendants McLARAND VASQUEZ EMSIEK & PARTNERS, INC., MVE

& PARTNERS, INC. and MVE + PARTNERS, INC. (collectively “MVE”) hereby do and will

apply ex parte to the Court for an Order striking Plaintiff CILKER APARTMENTS LLC’s

(“Plaintiff”) Third Amended Complaint (“TAC”).

Good cause exists for the ex parte application as the filing of Plaintiff’s TAC did not

conform to the Court Order granting leave to amend, and should be stricken pursuant to California

Code of Civil Procedure section 436(b). The Court ordered that MVE’s Demurrer was sustained

with ten (10) days leave to amend. Plaintiff did not conform to the Court Order and filed its TAC

in excess of ten (10) days’ leave:

- February 26, 2016: MVE’s Demurrer was heard by the Court;

- February 29, 2016: The Court entered its Order sustaining MVE’s Demurrer with ten (10)

days’ leave to amend;

- March 10, 2016: Counsel for MVE verbally provided a one (1) day extension to Plaintiff’s

counsel, agreeing that the deadline for filing the TAC would be extended to March 11,

2016;

- March 16, 2016: Plaintiff files its TAC well in excess of the ten (10) days’ leave to amend

ordered by the Court and the one (1) day extension provided by MVE’s counsel.

E-FILED: Mar 28, 2016 1:17 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-82290



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Good cause exists to hear this matter on an ex parte basis because the earliest date that the

Court can hear MVE’s Motion to Strike Plaintiff’s TAC is May 13, 2013, which is after MVE’s

hearing on its Motion for Summary Judgment on May 6, 2013.

In the alternative, MVE requests an Order shortening time and a briefing schedule, so that

MVE’s hearing on its Motion to Strike may be heard prior to its Motion for Summary Judgment.

DATED: March 28, 2016 COLLINS COLLINS MUIR + STEWART LLP By: ________________________________ SAMUEL J. MUIR Attorneys for McLARAND VASQUEZ &

PARTNERS, INC.




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MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION

California Code of Civil Procedure section 435 allows any party, within the time allowed to

respond to a pleading, to serve and file a Notice of Motion to Strike the whole Complaint or any

part thereof. Code of Civil Procedure section 436(b) allows the Court, upon a Motion to Strike

made pursuant to section 435, to strike out all or any part of any pleading not drawn or filed in

conformity with the laws of this state, a Court rule, or an Order of the Court. The Court is not

required to tolerate a purported amended Complaint which is filed in disregard of established

procedural requirements or is otherwise violative of orderly judicial administration. Neal v. Bank of

America Nat. Trust & Savings Ass’n. (1949) 93 Cal.App.2d 678, 683.

Here, Plaintiff’s filing of its Third Amended Complaint (“TAC”) did not conform to the

Court’s Order granting Plaintiff ten (10) days leave to amend its Second Amended Complaint

(“SAC”) after the Court sustained McLarand Vasquez Emsiek & Partners, Inc., MVE & Partners,

Inc., and MVE + Partners, Inc.’s (collectively “MVE”) Demurrer to the SAC. The Demurrer was

heard on February 26, 2016, the Order was issued on February 29, 2016, and Plaintiff filed its TAC

on March 16, 2016. See Declaration of Stephen B. Litchfield (“Decl. Litchfield”) at ¶5, Ex. “B”

Order After Hearing; see also Decl. Litchfield at ¶7, Ex. “C” TAC. Further, Plaintiff has been

granted multiple leaves to amend and has no excuse for not complying with the Court’s Order in

this instance. The Court should strike Plaintiff’s TAC and allow MVE to file a responsive pleading

to the two remaining causes of action left against MVE in Plaintiff’s Second Amended Complaint.

In the alternative, MVE requests that this Court grant an Order shortening time and provide

a briefing schedule for MVE’s Motion to Strike to be heard. The earliest available hearing date for

MVE’s Motion to Strike is May 13, 2016, which is after MVE’s Motion for Summary Judgment is

set to be heard on May 6, 2016.

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II.

EXIGENT CIRCUMSTANCES AND GOOD CAUSE EXIST FOR THE COURT TO

GRANT THIS EX PARTE APPLICATION

Good cause exists for the ex parte application as the filing of Plaintiff’s TAC did not

conform to the Court Order granting leave to amend and should be stricken pursuant to California

Code of Civil Procedure section 436(b). The Court ordered that MVE’s Demurrer was sustained

with ten (10) days’ leave to amend. Plaintiff did not conform to the Court Order and filed its TAC

in excess of ten (10) days’ leave. The earliest the Court can hear MVE’s Motion to Strike is May

13, 2016, which is five (5) court days after MVE’s Motion for Summary Judgment is to be heard.

The fact that Plaintiff did not conform to the Court’s Order in filing its TAC, and that the earliest

the Court can hear MVE’s Motion to Strike is after its Motion for Summary Judgment establishes

good cause for the Court to grant this ex parte application striking Plaintiff’s TAC. In the

alternative, good cause exists for the Court to grant an Order shortening time and to provide a

briefing schedule so MVE’s Motion to Strike may be heard prior to its Motion for Summary

Judgment.

A. Statutory Law, Case Law, and Justice Require That the Court Strike Plaintiff’s TAC

As stated above, Code of Civil Procedure section 436(b) allows the Court, upon a party’s

Motion to Strike pursuant to section 435, to strike an amended Complaint that does not conform to

the Court Order granting leave to amend. The Court is not required to tolerate a purported amended

Complaint which is filed in disregard of established procedural requirements or is otherwise

violative of orderly judicial administration. Neal at 683. Plaintiff’s TAC was filed sixteen (16) days

after the Court’s Order granting leave to amend, completely disregarding the Court’s Order of ten

(10) days’ leave.

In Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, the Plaintiff did

not file its Fourth Amended Complaint within the twenty (20) day window specified by the Court.

The Court instructed the Plaintiff to move for leave to file the belated pleading. The Plaintiff, citing

counsel’s misplacement of important documents, relied on Code of Civil Procedure 473,

subdivision (b), and argued that Plaintiffs were entitled to mandatory relief from dismissal entered




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as a result of an attorney’s mistake, inadvertence, surprise or neglect. The Defendant

simultaneously moved to strike the proposed pleading and dismiss the action for failure to amend

within the time allowed after the sustaining of a demurrer. The Defendant argued that by failing to

amend during the time specified, the Plaintiff lost its right to do so, rendering the action subject to

dismissal. The Defendant contended that the pleading should be stricken due to the Plaintiff’s

failure to file the amended Complaint within the specified time frame and because multiple

demurrers had been sustained with leave to amend. The Court granted both the Motion to Strike and

Motion to Dismiss. The Court emphasized that appropriate exercise of discretion requires the Court

to consider factors including the conduct of the moving party and the belated presentation of the

amendment and failure to file in conformity with the Court’s Orders. Id. at 613.

Further, the Plaintiffs’ failure to file an amended Complaint within the time specified

subjected their entire action to dismissal in the Court's discretion under Code of Civil Procedure

section 581, subdivision (f)(2). Under that statute, the Court may dismiss the Complaint when,

“after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it

within the time allowed by the Court and either party moves for dismissal.” Code of Civ. Prod. §

581, subd. (f)(2). Id. at 613-14.

Here, MVE is moving to strike Plaintiff’s TAC and be dismissed from this matter. Like

Leader, MVE has demurred, the Demurrer has been sustained with leave to amend, and Plaintiff

has failed to amend its Complaint in accordance with the Court’s Order. The Court has previously

determined that Plaintiff’s negligence and breach of contract causes of action are unfounded,

sustaining MVE’s Demurrer to the Second Amended Complaint. MVE did not enter into a contract

with Plaintiff and did not perform work at the subject property. The remaining causes of action for

express indemnity and declaratory relief can be resolved through a Motion for Judgment on the

Pleadings, but Plaintiff should not receive any additional leeway in its attempt to allege coherent

facts as to MVE. The Court should use its inherent power to prevent abuses of its processes and

strike Plaintiff’s TAC and Order that MVE be dismissed from the matter, or, in the alternative,

Order that MVE file a responsive pleading to the Second Amended Complaint.

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B. In the Alternative, the Court Should Grant an Order Shortening Time and Provide a

Briefing Schedule for MVE’s Motion to Strike Plaintiff’s TAC.

The Court is unable to hear MVE’s Motion to Strike until after MVE’s Motion for Summary

Judgment. MVE’s Motion for Summary Judgment is set to be heard on May 6, 2016 and the Court

is unable to hear the Motion to Strike until May 13, 2016. In the interest of judicial economy, it is

imperative that the Motion to Strike be adjudicated first because, if granted, it will render the

MVE’s Motion for Summary Judgment moot. For the above reasons, MVE requests in the

alternative that the Court grant an Order shortening time and provide a briefing schedule for MVE’s

Motion to Strike Plaintiff’s TAC.

III.

MVE GAVE ADEQUATE NOTICE OF THIS EX PARTE APPLICATION TO ALL

INTERESTED PARTIES

As set forth in the Declaration of Stephen B. Litchfield, notice of this Ex Parte Application

was given to the parties before 10:00 a.m. on Monday, March 28, 2016, via the Santa Clara

Superior Court e-filing service. (Litchfield Decl. at ¶3; see Exhibit “A” attached hereto.)

IV.

CONCLUSION

Based on the foregoing, MVE respectfully requests that this Court grant this application and

issue an Order striking the whole of Plaintiff’s TAC and dismissing MVE from this matter. In the

alternative, MVE respectfully requests that this Court issue an Order shortening time and providing

a briefing schedule for MVE’s Motion to Strike Plaintiff’s TAC.

DATED: March 28, 2016 COLLINS COLLINS MUIR + STEWART LLP By: ________________________________ SAMUEL J. MUIR Attorneys for McLARAND VASQUEZ &

PARTNERS, INC.


19010 – DECL OF SBL ISO EX PARTE APP RE MTC TAC ON 03-29-16 1

DECLARATION OF LITCHFIELD ISO EX PARTE APPLICATION

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DECLARATION OF STEPHEN B. LITCHFIELD

1. I, Stephen B. Litchfield, declare:

2. I am an attorney duly licensed to practice before all courts in the State of California.

I am an associate with the firm of Collins Collins Muir + Stewart LLP, have personal knowledge of

the following facts and, if called upon to testify, could and would competently do so.

3. MVP/MVE has given written notice to all parties prior to 10:00 a.m. the court day

before the ex parte appearance, March 29, 2016. Attached hereto as Exhibit “A” is a true and

correct copy of the letter to all counsel, served via the Santa Clara Superior Court e-filing service.

4. On February 26, 2016 MVE’s Demurrer was heard by the Court.

5. On February 29, 2016 the Court entered its Order sustaining MVE’s Demurrer with

ten (10) days leave to amend. Attached hereto as Exhibit “B” is a true and correct copy of the

Order sustaining the demurrer.

6. On March 10, 2016 counsel for MVE verbally provided a one (1) day extension to

Plaintiff’s counsel, agreeing that the deadline for filing the TAC would be extended to March 11,

2016.

7. On March 16, 2016 Plaintiff filed its TAC, well in excess of the ten (10) days leave

to amend ordered by the Court, and the one (1) day extension provided by MVE’s counsel.

Attached hereto as Exhibit “C” is a true and correct copy of the TAC.

I declare, under penalty of perjury, under the law of the State of California, that the

foregoing is true and correct. Executed this 28th day of March 2016 at Oakland, California.

__________________________________________

DECLARANT


EXHIBIT “A”










EXHIBIT “B”











EXHIBIT “C”


E-FILEDMar 16, 2016 4:33 PM



By R. Walker, Deputy


E-FILED: Mar 16, 2016 4:33 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-81916E-FILED: Mar 28, 2016 1:17 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-82290


























Exhibit A


E-FILEDJul 1, 2015 2:10 PM



By G. Duarte, Deputy


E-FILED: Jul 1, 2015 2:10 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-74237E-FILED: Mar 16, 2016 4:33 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-81916E-FILED: Mar 28, 2016 1:17 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-82290

Exhibit B


E-FILED: Sep 25, 2015 11:20 AM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-76902E-FILED: Mar 16, 2016 4:33 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-81916E-FILED: Mar 28, 2016 1:17 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-82290

E-FILED: Sep 25, 2015 11:20 AM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-76902E-FILED: Mar 16, 2016 4:33 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-81916E-FILED: Mar 28, 2016 1:17 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-82290

Documents

1 SAMUEL J. MUIR (SBN 89883) STEPHEN B. LITCHFIELD (SBN … · 2016. 7. 11. · Good cause exists to hear this matter on an ex parte basis because the earliest date that the Court