Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Page 147
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Pursuant to the Court's October 8, 2013 order, Plaintif Jennifr Vagle ("Plaintif') and
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Defndant ASN Waer Center LLC ("Defndant") submit the fllowing joint status report in
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preparation fr the further status conference scheduled fr November 1, 2013 at 1:30 p.m.
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5 I. DISPUTED DISCOVERY
6 On October 8, the Court vacated until frther notice all further briefing on Plaintiffs
7 Motion to Compel Further Responses to Requests fr Admission (Set One), Motion to Compel
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Further Reponses to Requests fr Production of Documents (Set One), Motion to Compel Further
9 Responses to Form Interrogatories (Set One), and Motion to Compel Further Responses to
10 Special Interogatories (Set One), and Defndant's Motion to Compel Fmiher Discover
11 Reponses. The Court ordered the parties to continue to meet and confer on the disputed
12 discovery and submit a joint status report identifying which discovery items are still in dispute.
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The Court acknowledged that the parties would retain their respective rights to further briefng
14 (i.e. opposition brief and reply brief) on teir motions to compel.
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A. Plaintiffs Discover
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1. Class Contact Infrmation (Special Interrogatory No. 1)
17 The parties were unable to reach an agreement on Plaintiffs request fr the class contact
18 infrmation relative to ASN W amer Center, LLC. The parties wish to discuss this matter with
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the Court at the November 1 stats conference.
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2. Class Infrmation on Security Deposits at Archstone Warner Center
(Special Interrogatories Nos. 2-17, 22)
22 Defnse counsel has produced this inforation to Plaintifs counsel. Plaintif reserves
23 the right to review te document production befre determining whether to withdraw her motion
24 to compel futher responses on these discovery items.
25 Ill
26 Ill
27 I I I
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JOIT STATUS RPORT
EXHIBIT 2
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3. Complaints and Small Claims Lawsuits (Special Interrogatories Nos.
18-21; Requests fr Production Nos. 2-5)
The parties have agreed to continue to meet and confer on these discovery items after
Plaintif has had time to review te data produced by Defndant related to class information on
security deposits at the Archstone Waer Center apartment community.
4. Identifcation of Other Archstone Apartments Using the Same
Standardized Forms (Special Interrogatories Nos. 24, 26, 28, 30, 32,
34, 36, 38, 40; Requests fr Admission Nos. 1-10; Form
Interrogatory No. 17.1)
Plaintif has agreed to withdraw these requests and modif this discovery into a single
request fr the identifcation of other Archstone apartment communities with access to the
Operations Manual already produced by Defndant. Based on this modifcation, and without
waiver of any objections, Defndant has agreed to respond this modifed request.
5. Full Identifcation of Witnesses (Special Interrogatories 29, 31, 33,
34, 37, 39, 54, 57, 60, 63, 76; Form Interrogatories Nos. 12.1, 15.1,
17.1)
The parties have agreed to continue to meet and confr on these discovery items after
Plaintif further researches the legal issues related to these discovery items.
6. Archstone's Website (Special Interrogatory No. 65)
Plaintif has agreed to modify this discovery item so it is not limited to an entity that
maintained, updated or operated the website at w .archstoneapartments.com. Based on this
modifcation, and without waiver of any objections, Defndant has agreed to respond this
modifed request.
7. Training Materials and Documents (Special Interrogatories 66-72)
Plaintif has agreed to withdraw these requests and modify this discovery into a single
request that seeks the identifcation of taining materials that were used at the Archstone Warner
Center apartment commllity. Based on this modifcation, and without waiver of any objections,
Defndant has agreed to respond this modifed request.
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JOIT STA1S RPORT
EXHIBIT 2
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8. Archstone's Three Guarantees (Special Interrogatories 7375)
Plaintiff has ageed to witdraw these discovery items.
B. Defndant's Discovery
1. Witness Identity and Ifrmation (orm Interrogatory No. 12.1)
Te paies were unable to reach an ageement on Defendant's form interogatory request
fr the identit of witesses and related contact information. The paies wish to discuss this
matter wit the Court at the November 1 status conference.
2. Facts Supporting Requests fr Admission Denials (orm Interrogator
17.1 as it relates to Requests fr Admission Nos. 2, 3, 5, 6, 7, 8, 9 and 11)
Te paties were unable to reach an agreement on Defndant's For Interogatory No.
17.1 as it relates to Requests fr Admission Nos. 2, 3, 5, 6, 7, 8, 9 and 11. The parties wish to
discuss this matter with the Court at the November 1 status confrence.
Date: October 28, 2013 R. RX PARRIS LAW FIRM
Date: October 28, 2013 LLP
osw 804029148 .1
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JOIT STATUS REPORT
EXHIBIT 2
Page 150
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CHRISTOPHER J. HEALEY (SBN 105798)
chealey@mckennalong.com
2 JAIKARAN SINGH (SBN 201355)
j singh@mckennalong.com
3 McKENA LONG & ALDRIDGE LLP
600 West Broadway, Suite 2600
4 San Diego, Califria 92101-3372
Telephone: 619.236.1414
5 Facsimile: 619 .232.8311
6 Attorneys for Defndant
ASN WARNER CENTER, LLC
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
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11 JENNIFER VAGLE, on behalf of herself and
all others similarly situated,
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13
14
v.
Plaintiff,
ASN WARNER CENTER, LLC, a Delaware
15 limited liability corporation, and DOES 1
through 100, inclusive,
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17
Defndant.
Case No. BC480931
PROOF OF SERVICE
Assigned for All Purposes to:
Hon. William F. Highberger
Dept. 307
18 I, Geralynn D. Vidmar, declare under penalty of perjury that I am over the age of eighteen
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years, that I am not a party to the above-refrenced action, and that I am employed in the State of
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California, County of San Diego, where the within-mentioned service occurred. My business
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address is 600 West Broadway, Suite 2600, San Diego, California 92101; telephone number (619)
22 236-1414.
23 On November 8, 2013, I caused to be served the following document(s):
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1. NOTICE OF RULINGS FROM JOINT STATUS CONFERENCE
25
on the interested parties in this action by:
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27
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MCKENNA LONG &
ALDRIDGE LLP
SAN DIEGO
LEXISNEXIS SERVICE LIST VIEWABLE ONLINE
PROOF OF SERVICE
EXHIBIT 2
Page 151
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1 XX BY ELECTRONIC SERVICE: Complying with Code of Civil Procedure 1010, I caused
such document(s) to be Electronically Filed and Served through the LexisNexis System for
2 the above-entitled case. Upon completion of transmission of said document(s), a filing
receipt is issued to the fling party acknowledging receipt, filing and service by the
3 LexisNexis system. A copy of the LexisNexis filing receipt page will be maintained with
the original document(s)in our ofice.
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I declare under penalty of perjury under the laws of the State of Califoria that the
fregoing is true and correct.
Executed at San Diego, Califoria on November 8, 2013.
Geralvnn D. Vidmar
usw 803757570.5
MCKENNA LONG &
ALDRIDGE LLP
2
SAN DIEGO
PROOF OF SERVICE
EXHIBIT 2
Page 152
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CHRISTOPHER J. HEALEY (SBN 105798)
chealey@mckennalong.com
2 JAIKARAN SINGH (SBN 201355)
jsingh@mckennalong.com
3 McKENNA LONG & ALDRIDGE LLP
600 West Broadway, Suite 2600
4 San Diego, Califoria 92101-33 72
Telephone: 619.236.1414
5 Facsimile: 619.232.8311
6 Attoreys for Defendant
ASN WARNER CENTER, LLC
CONFORMED COPY
ORIGINAL FILED
Su1wrio1 Co1n OfCiiliforui;i
Cn11111 Of Lo Angtlts
NOV 0 8 2013
.John A. Clarke, Executive Oficer/Clerk
By: Robin Sanche, Deputy
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SUPERIOR COURT OF THE ST ATE OF CALIFORNIA
COUNTY OF LOS ANGELES
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11 JENNIFER VAGLE, on behalf of herself and
all others similarly situated,
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13
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v.
Plaintiff,
ASN WARNER CENTER, LLC, a Delaware
15 limited liability corporation, and DOES 1
through 100, inclusive,
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Defendant.
17
Case No. BC48093 l
PROOF OF SERVICE
Assigned for All Purposes to:
I-Ion. William F. Hig
h
berger
Dept. 307
18 I, Geralynn D. Vidmar, declare under penalty of petjury that I am over the age of eighteen
19 years, that I am not a party to the above-refrenced action, and that I am employed in the State of
20 California, County of San Diego, where the within-mentioned service occurred. My business
21 address is 600 West Broadway, Suite 2600, San Diego, California 92101; telephone number (619)
22 236-1414.
23 On November 8, 2013, I caused to be served the following document(s):
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1. NOTICE OF RULINGS FROM JOINT STATUS CONFERENCE
25 on the interested parties in this action by:
26
27
28
MCKENNA LONG &
ALDRIDGE LLP
$AN DIEGO
LEXISNEXIS SERVICE LIST VIEW ABLE ONLINE
PROOF OF SERVICE
EXHIBIT 2
Page 153
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1 XX BY ELECTRONIC SERVICE: Complying with Code of Civil Procedure 1010, I caused
such document(s) to be Electronically Filed and Served through the LexisNexis System for
2 the above-entitled case. Upon completion of transmission of said document(s), a filing
receipt is issued to the fling party acknowledging receipt, filing and service by the
3 LexisNexis system. A copy of the LexisNexis filing receipt page will be maintained with
the original document(s)in our ofice.
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I declare under penalty of perjury under the laws of the State of Califoria that the
fregoing is true and correct.
Executed at San Diego, Califoria on November 8, 2013.
Geralvnn D. Vidmar
usw 803757570.5
MCKENNA LONG &
ALDRIDGE LLP
2
SAN DIEGO
PROOF OF SERVICE
SUMMONS
(CITACION JUDICIAL)
FOR COURT USE ONLY
NOTICE TO DEFENDANT:
(AVISO AL DEMANDADO):
(SOLO PARA USO DE LA CORTE)
CASE NUMBER:
(Nmero del Caso):
The name, address, and telephone number of plaintiff's attorney, or plaintiff without an attorney, is:
(El nombre, la direccin y el nmero de telfono del abogado del demandante, o del demandante que no tiene abogado, es):
, Deputy Clerk, by
(Adjunto) (Secretario)
NOTICE TO THE PERSON SERVED: You are served
as an individual defendant. 1.
2.
3. on behalf of (specify):
CCP 416.10 (corporation)
CCP 416.20 (defunct corporation)
CCP 416.40 (association or partnership)
under:
4. by personal delivery on (date):
FormAdopted for Mandatory Use
J udicial Council of California
SUMMONS
Code of Civil Procedure 412.20, 465
SUM-100
Page 1 of 1
NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information
below.
You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy
served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your
case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts
Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask
the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property
may be taken without further warning from the court.
There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney
referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate
as the person sued under the fictitious name of (specify):
these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifornia.org), the California Courts Online Self-Help Center
(www.courtinfo.ca.gov/selfhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and
costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case.
AVISO! Lo han demandado. Si no responde dentro de 30 das, la corte puede decidir en su contra sin escuchar su versin. Lea la informacin a
continuacin
Tiene 30 DAS DE CALENDARIO despus de que le entreguen esta citacin y papeles legales para presentar una respuesta por escrito en esta
corte y hacer que se entregue una copia al demandante. Una carta o una llamada telefnica no lo protegen. Su respuesta por escrito tiene que estar
en formato legal correcto si desea que procesen su caso en la corte. Es posible que haya un formulario que usted pueda usar para su respuesta.
Puede encontrar estos formularios de la corte y ms informacin en el Centro de Ayuda de las Cortes de California (www.sucorte.ca.gov), en la
biblioteca de leyes de su condado o en la corte que le quede ms cerca. Si no puede pagar la cuota de presentacin, pida al secretario de la corte
que le d un formulario de exencin de pago de cuotas. Si no presenta su respuesta a tiempo, puede perder el caso por incumplimiento y la corte le
podr quitar su sueldo, dinero y bienes sin ms advertencia.
other (specify):
(For proof of service of this summons, use Proof of Service of Summons (form POS-010).)
(Para prueba de entrega de esta citatin use el formulario Proof of Service of Summons, (POS-010)).
CCP 416.60 (minor)
CCP 416.70 (conservatee)
CCP 416.90 (authorized person)
YOU ARE BEING SUED BY PLAINTIFF:
(LO EST DEMANDANDO EL DEMANDANTE):
The name and address of the court is:
(El nombre y direccin de la corte es):
DATE:
(Fecha)
SUM-100 [Rev. J uly 1, 2009]
[SEAL]
Hay otros requisitos legales. Es recomendable que llame a un abogado inmediatamente. Si no conoce a un abogado, puede llamar a un servicio de
remisin a abogados. Si no puede pagar a un abogado, es posible que cumpla con los requisitos para obtener servicios legales gratuitos de un
programa de servicios legales sin fines de lucro. Puede encontrar estos grupos sin fines de lucro en el sitio web de California Legal Services,
(www.lawhelpcalifornia.org), en el Centro de Ayuda de las Cortes de California, (www.sucorte.ca.gov) o ponindose en contacto con la corte o el
colegio de abogados locales. AVISO: Por ley, la corte tiene derecho a reclamar las cuotas y los costos exentos por imponer un gravamen sobre
cualquier recuperacin de $10,000 ms de valor recibida mediante un acuerdo o una concesin de arbitraje en un caso de derecho civil. Tiene que
pagar el gravamen de la corte antes de que la corte pueda desechar el caso.
ARCHSTONE COMMUNITIES, LLC, a
Delaware limited liability corporation, ASN
WARNER CENTER, LLC, a Delaware limited liability corporation, and ASN
LONG BEACH HARBOR, LLC, a Delaware limited liability corporation, and
DOES 1 through 100, inclusive
J ENNIFER VAGLE and GEORGE
PONCE, on behalf of
themselves and all others similarly situated
BC480931 Los Angeles County Superior Court
Central Civil West
600 South Commonwealth Avenue
Los Angeles, California 90005
R. Rex Parris, Esq. (SBN 96567); Alexander R. Wheeler, Esq. (SBN 239541) (661) 949-2595 (661) 949-7524
Kitty Szeto, Esq. (SBN 258136); J ohn M. Bickford, Esq. (SBN 280929)
R. REX PARRIS LAW FIRM
43364 10th Street West, Lancaster, California 93534
THIRDAMENDED
54504572
Nov052013
03:51PM
EXHIBIT 2
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THIRD AMENDED COMPLAINT AND DEMAND FOR J URY TRIAL
R. Rex Parris, Esq. (SBN 96567)
Alexander R. Wheeler, Esq. (SBN 239541)
Kitty Szeto, Esq. (SBN 258136)
J ohn M. Bickford, Esq. (SBN 280929)
R. REX PARRIS LAW FIRM
43364 10th Street West
Lancaster, California 93534
Telephone: (661) 949-2595
Facsimile: (661) 949-7524
Attorneys for Plaintiffs and the Putative Class
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
J ENNIFER VAGLE and GEORGE
PONCE, on behalf of themselves and all
others similarly situated;
Plaintiffs,
v.
ARCHSTONE COMMUNITIES, LLC, a
Delaware limited liability corporation, ASN
WARNER CENTER, LLC, a Delaware
limited liability corporation, and ASN
LONG BEACH HARBOR, LLC, a
Delaware limited liability corporation, and
DOES 1 through 100, inclusive;
Defendants.
Case No. BC480931
CLASS ACTION
THIRD AMENDED COMPLAINT
(1) Violations of Civil Code section
1950.5
(2) Unjust Enrichment
(3) Violation of Business and
Professions Code sections
17200 et seq.
DEMAND FOR JURY TRIAL
EXHIBIT 2
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THIRD AMENDED COMPLAINT AND DEMAND FOR J URY TRIAL
JURISDICTION AND VENUE
1. This court has jurisdiction over this action pursuant to Code of Civil
Procedure section 410.10 and Article VI, section 10 of the California Constitution.
2. This court has jurisdiction over Defendants because Defendants have
sufficient minimum contacts in California, or otherwise intentionally avail themselves
of the California market so as to render the exercise of jurisdiction over them by the
California courts consistent with traditional notions of fair play and substantial justice.
3. Venue is proper in this court because Defendants maintain offices, have
agents, and transact business in Los Angeles County. At all material times mentioned
herein, Plaintiffs resided in Los Angeles County.
4. Plaintiffs are informed and believe, and based thereon allege, that the
amount in controversy with respect to Plaintiffs individual claims is less than $75,000.
PARTIES
5. Plaintiff J ENNIFER VAGLE (Plaintiff VAGLE) is, and at all times
mentioned herein was, an individual residing in Los Angeles County, in the State of
California. Plaintiff VAGLE brings this action on behalf of herself, all others similarly
situated, and the general public.
6. Plaintiff GEORGE PONCE (Plaintiff PONCE) is, and at all times
mentioned herein was, an individual residing in Los Angeles County, in the State of
California. Plaintiff PONCE brings this action on behalf of himself, all others similarly
situated, and the general public.
7. Defendant ASN WARNER CENTER, LLC (Defendant ASN WARNER
CENTER) is a limited liability corporation formed under the laws of the State of
Delaware, having its principle place of business at 9200 E Panorama Circle, Suite 400,
Englewood, Colorado, 80112.
/ / / /
/ / / /
/ / / /
EXHIBIT 2
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THIRD AMENDED COMPLAINT AND DEMAND FOR J URY TRIAL
8. Defendant ASN LONG BEACH HARBOR, LLC (Defendant ASN
LONG BEACH) is a limited liability corporation formed under the laws of the State of
Delaware, having its principle place of business at 9200 E Panorama Circle, Suite 400,
Englewood, Colorado, 80112.
9. Defendant ARCHSTONE COMMUNITIES, LLC (Defendant
ARCHSTONE) is a limited liability corporation formed under the laws of the State of
Delaware, having its principle place of business at 9200 E Panorama Circle, Suite 400,
Englewood, Colorado, 80112.
10. Plaintiffs are ignorant of the true names and capacities of Defendants sued
herein as DOES 1 through 100, inclusive, and therefore sued said Defendants by such
fictitious names. Plaintiffs will amend this Third Amended Complaint to allege the true
names and capacities of DOES 1 through 100 when ascertained. Plaintiffs are informed
and believe, and based thereon allege, that each of these fictitiously named defendants,
participated or acted in concert with Defendant ASN WARNER CENTER, Defendant
ASN LONG BEACH, and Defendant ARCHSTONE and are therefore responsible in
some manner for the acts, occurrences, and/or omissions alleged herein, and have
thereby proximately caused damages to Plaintiffs, and are liable to Plaintiffs by reason
of the facts alleged herein.
11. Plaintiffs are informed and believe, and based thereon allege, that at all
times herein mentioned, Defendants and DOES 1 through 100 are the agents, partners,
successors, or employees of each other, and, in doing the things complained of herein,
are acting within the course and scope of such agency, partnership, succession, or
employment. All acts and omissions alleged to have been done by Defendants were
done with the consent, knowledge and ratification of all other Defendants.
12. Plaintiff is informed and believes, and based thereon alleges, that there
exists, and at all times herein mentioned there existed, a unity of ownership between the
Defendants such that any individuality or separateness between them has ceased and
each of them is the alter ego of the others. Defendants share essentially identical
EXHIBIT 2
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THIRD AMENDED COMPLAINT AND DEMAND FOR J URY TRIAL
ownership and officers, share the same corporate headquarters, and utilize the services
of the same employees. Adherence to the fiction of the separate existence of
Defendants, and each of them, would, under the circumstances, sanction fraud and/or
promote injustice.
FACTUAL ALLEGATIONS
Defendant ARCHSTONE
13. Defendant ARCHSTONE manages and operates approximately 70 multi-
unit apartment complexes throughout the State of California. These apartment
complexes operate under the collective name Archstone.
14. Plaintiffs are informed and believe, and based thereon allege, that
Defendant ARCHSTONE markets its California apartment complexes through, among
other things, its websitearchstoneapartments.com. The website claims that Archstone
is a recognized leader in apartment operations with a portfolio concentrated in many of
the most desirable neighborhoods in the nation. [Archstones] communities reside in
Washington DC, Los Angeles, San Diego, San Francisco, New York, Seattle and
Boston metropolitan areas, to name a few. Backed by industry-leading customer
service guarantees, Archstone strives to provide great apartments and great service to
[its] customers. The website also has a feature that allows prospective tenants to
[l]ease apartments online, anytime. To rent an apartment, all a tenant need[s] is an
Internet connection and about 15 minutes.
15. Plaintiffs are informed and believe, and based thereon allege, that
Defendant ARCHSTONE maintains another residents website called
myarchstone.com, which allows any of the tenants residing at its California apartment
complexes to, among other things, pay their rent online, submit and track service
requests, and find community forms and policies.
16. Plaintiffs are informed and believe, and based thereon allege, that the
employees at Defendant ARCHSTONEs California apartment complexes are
uniformly trained and employed by Defendant ARCHSTONE. Defendant
EXHIBIT 2
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THIRD AMENDED COMPLAINT AND DEMAND FOR J URY TRIAL
ARCHSTONE claims that [j]obs at Archstone run the gamut from corporate positions
at [their] Denver headquarters to positions throughout the United States at [their]
apartment communities and regional offices. It also claims to provide formal and
informal training. This includes on-boarding training, which is a multi-week
program that combines classroom, online and structured on-the-job activities to build
the skills and confidence needed to interact with customers and deliver outstanding
service. With regards to its property managers, Defendant ARCHSTONE has created
a unique leadership development series to help [their] managers improve their existing
leadership skills and build new ones. The program begins with a multi-day highly
interactive session focused on driving performance and building teams. Managers from
across the country have the opportunity to interact with peers while learning from
executive sponsors. Collaborative opportunities continue in both face-to-face and
online environments.
17. Defendant ARCHSTONE monitors and regulates its employees to ensure
that they comply with its uniform policies and procedures. For example, [e]very
quarter, [Archstone] selects [its] Circle of Excellence winners, which are [its] top
performing associates at [its] apartment properties. Every year, each region holds a
celebration to recognize these winners and many of [Archstones] local associates
attend.
Plaintiff VAGLEs Experience at Archstone Warner Center
18. On or about August 16, 2009 to about August 15, 2010, Plaintiff VAGLE
leased an apartment unit at Archstone Warner Center, located at 21200 Kittridge Street,
Woodland Hills, California, 91303. Archstone Warner Center was legally owned by
Defendant ASN WARNER CENTER, but was managed by Defendant ARCHSTONE.
19. Defendant ARCHSTONE required Plaintiff VAGLE to pay a $399.00
standard security deposit, a $400.00 pet deposit and, and $50.00 deposit for a second set
of keys, for a total security deposit of $849.00.
/ / / /
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20. On or about August 15, 2010, Plaintiff VAGLE vacated her apartment
unit, leaving it clean and in the same condition it was at the inception of her tenancy,
subject to reasonable wear and tear.
21. On or about August 25, 2010, Defendant ARCHSTONE provided
Plaintiff VAGLE with a Statement of Deposit, withholding $362.13 of her $849.00
deposit. Of the $362.13 withholding, the following deductions, totaling $282.27, that
are the subject of this lawsuit:
a. $80.00 for apartment cleaning;
b. $60.00 for carpet cleaning; and
c. $142.27 for painting.
22. After Plaintiff VAGLEs lease expired, Plaintiff VAGLE spoke to
individuals who also leased apartment units managed by Defendant ARCHSTONE, all
of whom were charged for apartment cleaning and painting and carpet
cleaning/replacement at the end of their tenancies even though they left their apartment
units clean and in the same condition it was at the inception of their tenancies, subject
to reasonable wear and tear.
Plaintiff PONCEs Experience at Archstone Long Beach Harbor
23. On or about November 28, 2010 to about November 27, 2011, Plaintiff
PONCE leased an apartment unit at Archstone Long Beach Harbor, located at 1609
Ximeno Ave, #154, Long Beach, CA 90804. Archstone Long Beach Harbor was
legally owned by Defendant ASN LONG BEACH, but was managed by Defendant
ARCHSTONE.
24. Defendant ARCHSTONE required Plaintiff PONCE to pay a $99.00
security deposit.
25. On or about November 27, 2011, Plaintiff PONCE vacated his apartment
unit leaving it clean and in the same condition it was at the inception of his tenancy,
subject to reasonable wear and tear.
/ / / /
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26. On or about December 4, 2011, Defendant ARCHSTONE provided
Plaintiff PONCE with a Statement of Deposit, withholding the entirety of his $99.00
deposit and charging him an additional $273.74, totaling $372.74. Of the $372.74
charge, the following deductions, totaling $300.00, are the subject of this lawsuit:
a. $80.00 for apartment cleaning;
b. $60.00 for carpet cleaning; and
c. $160.00 for painting.
27. On or about December 31, 2011, Plaintiff PONCE complained about these
charges to Defendant ARCHSTONE in writing and attached pictures of his apartment
unit the day he moved out showing that he left his apartment clean and in the same
condition it was at the inception of his tenancy, subject to reasonable wear and tear. He
requested that the charges be dropped and that Defendant ARCHSTONE return his
$99.00 deposit.
28. On or about J anuary 9, 2012, Defendant ARCHSTONE responded to
Plaintiff PONCEs complaint, agreeing, as a courtesy, to waive the $80.00 apartment
cleaning fee. The other charges remained.
29. Plaintiff PONCE refused to pay these other charges. Consequently,
Defendant ARCHSTONE sent his bill to collections sometime in early to mid-2012.
Putative Class Members Experiences
30. Plaintiffs are informed and believe, and based thereon allege, that their
experiences mirror those of the other ex-tenants of apartment communities managed
and operated by Defendant ARCHSTONE. Plaintiffs have searched the internet and
discovered that mostif not allof the apartment communities managed and operated
by Defendant ARCHSTONE have negative reviews left by ex-tenants alleging that they
were charged for apartment cleaning and painting and/or carpet cleaning or replacement
at the end of their lease, even though they left their apartment clean and in the same
condition it was at the inception of their tenancy, subject to reasonable wear and tear.
/ / / /
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For example:
1
(a) Archstone Aurora HillsAgoura Hills, CA:
Upon moving out, I had the carpets cleaned, walls painted and
patched, and the entire apartment was spotless. Archstone charged
me for paint, carpets cleaned and shampooed, carpet patched when
no stains were there, and a total clean of the apartment totaling
over $500 when the deposit is only $299..this place is a rip-of.
They do not care about you they only care about how much money
they make off each individual.
Posted 4/12/2012 by Denese P.
(b) Archstone Aliso ViejoAliso Viejo, CA:
Archstone apparently has a policy of charging cleaning, painting
and carpet cleaning on move out no matter the actual condition of
the property. Upon move out, I cleaned the rugs with a
professional machine, cleaned the kitchen and bath completely,
and cleaned and repainted as needed. The apartment was seen by
Carolyn who commented that it was cleaner than when I moved
in. Despite this, I was charged for full cleaning, carpet cleaning
and repainting. This was ridiculous. It strikes me as dishonest.
Posted 6/16/2008 by lindaandpeter
(c) Archstone CalabasasCalabasas, CA:
They charge you $180 for painting no matter what, no prorated
fee based on wear-and-tear, nothing. On top of that my mom and
I spent the better part of a weekend completely cleaning the place
out. I mean spotless, and they still charged me $100 for cleaning,
saying that if it wasnt done Professionally they charge you.
Woulda been nice to know this before I cleaned my fingers to the
bone.
Posted 2/24/2006 by Anonymous
/ / / /
1
These reviews represent only a small sample of the negative reviews found by
Plaintiffs. The number of negative reviews Plaintiffs have found number in the hundreds.
Plaintiffs make these allegations as support for their good faith belief that Defendant
ARCHSTONE has a systematic policy and procedure of always charging for apartment
cleaning and painting and/or carpet cleaning or replacement at the end of every tenancy,
regardless of the actual condition of the apartment unit.
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(d) Archstone City PlaceLong Beach, CA:
I traveled during the week and was gone a lot of the weekend, so
the place was basically untouched and spotless, and at the end of
my rent they charged me cleaning and carpet clean (i was
supposed to get a free one), took the rest of the $500 deposit.
Posted 10/4/2011 by Casey J.
(e) Archstone CupertinoCupertino, CA:
Wait till you move out they try to charge you for painting,
cleaning, and rug cleaning at a cost of over $500.
Posted 7/29/2009 by Diane U.
(f) Archstone Del Mar HeightsSan Diego, CA
Lets not forget the amount of money I had to pay to move out. I
was told by the inspector that my apartment was in absolutely
PERFECT condition upon final inspection. Yet, they still forced
me to pay their ridiculous fees to 1) professionally clean the
apartment 2) professional carpet clean the apartment and 3)
professionally repaint the apartment.
Posted 4/16/2012 by Jackie K.
(g) Archstone Del Mar StationPasadena, CA
The day after I moved everything out of my apartment I hired my
loyal cleaning lady to do a deep and thorough cleanse of the
apartment. The place didnt have a speck in it. I received a bill 3
weeks later for $1,100.00 in move out costs. $80 for a
professional cleaning, which would be impossible to fathoms
what was cleaned and $900 for new carpet.
Posted 4/27/2012 by YANYARKER
(h) Archstone Emerald ParkDublin, CA:
They made illegal deductions to my security deposit. Its nice
that they paint the unit for new tenants, but the security deposit
isnt a fund for the landlord to return a unit to brand-new
condition. They also apparently try to charge a set $100 cleaning
fee to each departing tenant. Talk to your lawyer about Cal. Civ.
Code 1950.5 (online at http//legalinfo.ca.gov) and he or she is
likely to tell you that in your circumstances charging for painting
is illegal when only ordinary wear and tear is present, and
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charging a set cleaning fee without accounting for actual tasks
and time spent cleaning is also illegal. The law was passed in
2003, apparently Archstones standard screw-the-tenant
procedures havent caught up with the law.
Posted 9/9/2012 by Tim M.
(i) Archstone EmeryvilleEmeryville, CA:
My only real complaint is that when I moved out they tacked on
a bunch of random fees and I ended up paying $350. I am a very
careful, neat person who takes care of her things, so to be
charged 100 for professional cleaning-well ok, but not a random
100 for a paint job and then another 150 that I was never told
about. Moving out I felt ripped off.
Posted 7/11/2012 by Nicole S.
(j) Archstone EscondidoEscondido, CA:
We spent hours cleaning the apartment up to get it looking
spotless. The place looked better than when we moved in. When
they came to look at it the guy said it was one of the best cleaned
apartments that hed seen. He charged us $95 general clean, $50
carpet clean, and $85 for touch up paint. More than half our
deposit to do almost no cleaning. If you move in here, dont
expect to get your deposit back.
Posted on 3/16/2012 by Anonymous
(k) Archstone Fox PlazaSan Francisco, CA:
Upon moving out I was charged a $120 cleaning fee and $220 to
paint my unit. My unit was kept in perfect condition, I am a
clean freak. My $199 move in deposit turned into a bill.
Everyone be prepared to pony up money when you leave because
they charge everyone to clean and repaint, no matter what
Posted on 4/27/2009 by Anonymous
(l) Archstone Freemont CenterFreemont, CA:
Expect to pay for a moveout clean and professional carpet care.
Posted 9/21/2008 by Tom G.
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(m) Archstone GlendaleGlendale, CA:
Before I moved out, I had to sign a notice to vacate within 30
days of the move-out date, in person. This was a little annoying
for someone who travels a lot. After that, they sent me a whole
page of cleaning instructions. . . . So Archstone expects you to
follow most or all of these instructions, but they charge you at
least $80.00 for apartment cleaning always, on top of at least $60
for carpet cleaning. What was the point of me cleaning the
apartment then?
Posted 11/25/2011 by Lori Y.
(n) Archstone HaciendaPleasanton, CA:
I only paid a 99 dollar deposit, but when I moved out, I was
really disappointed. I thought I was going to get it all back. I
lived there for a year and there was typical wear and tear on the
carpet and walls, but no major stains, no major holes in the walls,
etc. The day I turned in my keys, I had cleaned out the
microwave/fridge/oven/stove so that they looked brand new. I
not only vacuumed, but also steam cleaned the carpets, and filled
the 3 nail holes that were in the wall with putty. When you move
into a big apartment like this where it not a privately owned, but
an actual national corporation, you expect that the walls will have
a fresh coat of paint, the carpets will be clean, etc. This is
because when you move out, they run a fresh coat of paint on the
walls and they clean the carpets. I already cleaned the carpets,
but still expected them to do it again. Literally, when I moved
out, the apartment (aside from some wall scuffs) looked exactly
how it did when I moved in. So why did I get a bill from them?
Apparently, you arent supposed to even vacuum when you move
out because they charge you an arm and leg to move out. On my
itemized bill, I had a carpet cleaning package that I had to pay
for, they said that the paint should last for X numbers of years so
they charged me for the excess years. So, if I would have stayed
for 2 years, I would have had to pay less even though there
would be more wear on the walls. Whatever.
Posted 4/20/2012 by Michelle M.
(o) Archstone La JollaLa Jolla:
When we were about to move out, the manager told us that we
were responsible for hundreds of dollars to paint the walls, clean
the carpets, and clean the entire apartment for the next tenant,
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regardless of the fact that we left the apartment clean and without
damages. Had there been damages, they would have charged us
more. Even though the rental lease clearly stated that the deposit
was supposed to be returned unless there were damages, with the
exception of regular wear and tear, the manager insisted that
regular wear and tear wasnt allowed. He said that all tenants
had to pay to prepare the apartment for the next tenant.
Posted 7/24/2011 by Anonymous
(p) Archstone La MesaLa Mesa, CA
When I moved out I left the place in outstanding conditions;
However, they are charging me for a new carpet, cleaning and
painting. At the end I owe them money.
Posted 2/7/2007 by Anonymous
(q) Archstone Las FloresRancho Santa Margarita, CA:
Our apartment was cleaned from top to bottom before we moved
out and somehow we got slapped with a bill for over $300 for
supposed repairs.
Posted 1/3/2010 by Anonymous
(r) Archstone Marina del ReyMarina del Ray, CA:
We just moved out, and we though our whole $800.00 security
deposit was coming back to us we left our apartment in
PERFECT condition. We received $48.00 back. Why do you
ask? They told us they had to air out the carpet and repaint the
walls to refresh them.
Posted 11/11/2010 by Ryan S.
(s) Archstone Placentia PlacePlacentia, CA:
They dont tell you but no matter what EVERYONE has to pay
$300.00 when you move out to cover painting and cleaning. No
Choice! Only one worker told us this. They dont tell you when
you move it. So dont count on your deposit back, ITS
AUTOMATIC.
Posted 1/13/2012 by Lisa P.
/ / / /
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(t) Archstone RiversideRiverside, CA:
Our company rented an apartment here for one year. It was only
occupied three to four nights a week -- never during the day and
never on weekends. When we gave up the lease, they tried to
charge us for full unit painting ($150) and carpet cleaning ($40).
Under California law, this falls under normal wear and tear.
When we complained, the manager, knowing the apartment was in
virtually the same condition as when we moved in, decided he
could let us off the hook for the carpet cleaning, but he would still
have to charge us $50 for hanging drapes in the bedroom and
dining room. Thats $12.50 per drilled hole.
Posted 10/13/2011 by Krusticle
(u) Archstone Sierra Del OroCorona, CA:
Very expensive upon moveout! My son lived here with his dog
that caused some damage. WE TOOK FULL
RESPONSIBILITY! Upon moveout we HIRED A
PROFESSIONAL contractor to repaint interior of apartment (not
damaged!) and to fix a piece of wood (4 in x 1 ft) on the patio that
had been damaged. THEY CHARGED US FOR PAINT and
repair after we had already fixed. In addition, we had carpets
professionally cleaned. THEY CHARGED US FOR AN ENTIRE
ROOM OF NEW CARPET! The carpet did NOT need to be
replaced! I received a bill for 600.00! I WOULD NEVER
RECOMMEND! Unprofessional, expensive.
Posted 9 months ago by Google User
(v) Archstone TerracinaOntario, CA:
My final bill had the following charges (in addition to the
expensive utilities):
DMG Complete Apt Clean..$95.00
DMG Full Paint Clean.$90.00
I was charged a full paint clean, even though my apartment and
the paint were spotless. The unit had just been painted one year
prior to me renting it. I made no blemishes or marks on the walls,
either. The property manager told me I would get my deposit
back, provided the unit was left as it was when she inspected it.
This was a total LIE!
Posted 5/14/2012 by David S.
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(w) Archstone Ventura ColonyVentura, CA:
[T]hey charge you move out costs no matter how well you take
care of the apartment they charge you to clean paint and shampoo
the carpets.
Posted 2/14/2010 by Anonymous
(x) Archstone Walnut CreekWalnut Creek, CA:
My wife & I lived there for only 2.5 months and left it
immaculately clean (better than when we moved in actually).
She spent 8 hours cleaning EVERY detail in our 600sf apartment
to ensure we would get out cleaning deposit back. Later we
talked to one of the receptionists who said we shouldnt have
bothered because they always charge $100 for a professional
cleaning service, NO MATTER how well you cleaned. Sure
enough, we were charged the $100. Also, we asked different
office personnel three times what paint we could use to dab over
the 10-15 small spackle holes where we hung pictures. They
refused to give us a paint color and said it would have to be
professionally painteddespite the fact that on the check-out
sheet it says to paint any spots needing it. We received our bill
today and they charged us $250 for a FULL repainting of the one
bedroom apartment (of which I guarantee you didnt
happenthe place was immaculate).
Posted 3 months ago by Google User
(y) Archstone Willow GlenSan Jose, CA:
When we moved out we had the apt professionally cleaned, and
the carpets professionally cleaned They tried to charge us over
$500 for cleaning and painting, and we had to submit our
pictures and receipts to have them take the money off and change
the amount owed.
Posted 6/24/2008 by blu232118
(z) The Lofts at Albert ParkSan Rafael, CA:
Deposityou will never see it again. In addition, additional
$375 is charged to you after cleaning the apartment repainting
the walls white even though I lived there for four years.
Posted 11/11/2011 by BEWARE B.
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Defendant ARCHSTONEs Uniform Systematic Policies and Procedures
31. Based on their personal experiences and the experiences of other class
members, Plaintiffs are informed and believe, and based thereon allege, that Defendants
has a systematic policy and procedure of: (1) charging its tenants for apartment cleaning
and painting and carpet cleaning or replacement at the end of every tenancy regardless
of the actual condition of the apartment unit; and (2) making such charges in order to
prepare the rental unit for the next tenancy and labeling them as turn-over costs.
32. Defendant ARCHSTONEs unlawful policy and procedure of always
charging for apartment cleaning and painting and carpet cleaning or replacement at the
end of every tenancy, regardless of the actual condition of the apartment unit, is done in
bad faith and without cause and subjects Defendants to statutory damages in addition to
actual damages under Civil Code section 1950.5.
CLASS ACTION ALLEGATIONS
33. Plaintiffs bring this action on behalf of themselves and on behalf of others
similarly situated, and thus, seeks class certification under Code of Civil Procedure
section 382.
34. The proposed class is defined as follows:
All persons, except those who were evicted pursuant to Civil Code
section 1161, who leased an apartment in California managed by
Defendant ARCHSTONE and were charged for apartment cleaning
and painting and/or carpet cleaning or replacement in violation of
Civil Code section 1950.5 within four years prior to the filing of
Plaintiff VAGLEs original Complaint up to final judgment.
35. Alternatively, Plaintiffs seek to certify the following two subclasses:
a. All persons, except those who were evicted pursuant to Civil Code
section 1161, who leased an apartment at Archstone Warner Center
and were charged for apartment cleaning and painting and/or carpet
cleaning or replacement in violation of Civil Code section 1950.5
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within four years prior to the filing of Plaintiff VAGLEs original
Complaint up to final judgment.
b. All persons, except those who were evicted pursuant to Civil Code
section 1161, who leased an apartment at Archstone Long Beach
Harbor and were charged for apartment cleaning and painting
and/or carpet cleaning or replacement in violation of Civil Code
section 1950.5 within four years prior to the filing of Plaintiff
VAGLEs original Complaint up to final judgment.
36. In addition, or in the alternative, to the above-defined Class, Plaintiffs
reserve the right to establish subclasses as appropriate to facilitate the effective
management of the Class; however, Plaintiffs are informed and believe, and based
thereon allege, that the Class as defined above is both objectively and easily identifiable
through Defendant ARCHSTONEs and its California apartment complexes business
records.
37. Plaintiffs are informed and believe, and based thereon allege, that the
Class is ascertainable and there is a well-defined community of interest in the litigation:
a) Plaintiffs are unable to state the exact number of Class Members
without discovery of Defendant ARCHSTONEs and its California
apartment complexes business records; however, Plaintiffs are
informed and believe, and based thereon allege, that the Class
Members are so numerous that joinder of all Class Members is
impracticable;
b) Plaintiffs are members of the Class, and subclasses, they seek to
represent, and Plaintiffs claims are typical of the claims of the
other Class Members. The leases and other documents used by
Defendant ARCHSTONE at its California apartment complexes are
all standardized and Defendant ARCHSTONE has the same
obligations to Plaintiffs and the other Class Members with respect
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to when charges can be made for apartment cleaning and painting
and/or carpet cleaning or replacement. Plaintiffs claim against
Defendant ARCHSTONE for unfair competition are also typical of
the Class Members. Plaintiffs have suffered actual injury and have
lost money as a result of Defendant ARCHSTONEs unfair
competition. Furthermore, Plaintiffs are informed and believe, and
based thereon allege, that the nature of the damages and their
causation will be the same for Plaintiffs and the other Class
Members;
c) Plaintiffs will fairly and adequately represent and protect the
interests of the class because: (1) Plaintiffs have retained
experienced litigation counsel with significant experience in class
action litigation and counsel will adequately represent the interests
of the class; (2) Plaintiffs and their counsel are aware of no
conflicts of interests between Plaintiffs and absent Class Members;
and (3) Plaintiffs are knowledgeable concerning the subject matter
of this action and will assist counsel in the prosecution of this
action; and
d) Plaintiffs are informed and believe, and based thereon allege, that a
class action provides a fair and efficient method of adjudicating
this controversy and is superior to other available methods of
adjudication in that (1) neither the size of the class, nor any other
factor, make it likely that difficulties will be encountered in the
management of this action as a class action; (2) the prosecution of
separate actions by individual Class Members or the individual
joinders of all Class Members in this action is impracticable, and
would create a massive and unnecessary burden on the resources of
the courts, and could result in inconsistent adjurations, while a
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single class action can determine, with judicial economy, the rights
of each member of the Class; (3) because of the disparity of
resources available to Defendants verses those available to
individual Class Members, prosecution of separate actions would
work a financial hardship on many Class Members; (4) there is no
plain, speedy, or adequate remedy available to Class Members
other than by maintenance of this class action because the damages
to each Class Member is relatively modest compared to the costs of
litigating the issues in this action, making it economically
unfeasible to pursue remedies other than in a class action; and (5)
the conduct of this action as a class action conserves the resources
of the parties and the Court system and protects the rights of each
members of the class and meets all due process requirements as to
fairness to all parties. A class action is also superior to the
maintenance of these claims on a claim by claim basis because all
of the claims arise out of the same circumstances and course of
conduct.
38. There are common questions of law and fact as to the class members that
predominate over questions affecting only individual members. The following common
questions of law or fact, among others, exists as to the members of the class:
a. Whether Defendants have a systematic policy and procedure of
always charging for apartment cleaning and painting and/or carpet
cleaning or replacement at the end of a tenants tenancy regardless
of the actual condition of the apartment unit;
b. Whether always charging for apartment cleaning and painting
and/or carpet cleaning or replacement at the end of a tenants
tenancy regardless of the actual condition of the apartment unit
violates Civil Code section 1950.5;
EXHIBIT 2
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THIRD AMENDED COMPLAINT AND DEMAND FOR J URY TRIAL
c. Whether Defendants have a systematic policy and procedure of
reducing these charges when a tenant complains about being
charged;
d. Whether Plaintiffs and the other Class Members are entitled to
statutory damages of up to twice the amount of their Security
Deposits, in addition to actual damages pursuant to Civil Code
section 1950.5; and
e. Whether Defendants systematic policy and procedure of charging
for apartment cleaning and painting and/or carpet cleaning or
replacement at the end of a tenants tenancy regardless of the actual
condition of the apartment unit constitutes an unfair and unlawful
business practice under Business and Professions Code sections
17200 et seq.
FIRST CAUSE OF ACTION
(Violations of Civil Code section 1950.5)
(Against Defendants and DOES 1100)
39. Plaintiffs, on behalf of themselves and the Class Members, repeat and
incorporate by this reference the allegations contained in paragraphs 1 through 38, and
each and every part thereof with the same force and effect as though fully set forth
herein.
40. Given the standardized and unitary methods by which Defendant
ARCHSTONE manages and operates its California apartment complexes, Defendant
ARCHSTONE was Plaintiffs and the other Class Members landlord within the
meaning of Civil Code section 1950.5.
41. Plaintiffs are informed and believe, and based thereon allege, that
Defendants at all relevant times herein, have been violating Civil Code section 1950.5
through its systematic uniform policies and procedures.
42. As a direct and proximate result of Defendants systematic policies and
procedures that violate Civil Code section 1950.5, Plaintiffs and the Class Members
EXHIBIT 2
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THIRD AMENDED COMPLAINT AND DEMAND FOR J URY TRIAL
have been damaged in an amount equal to the unlawful charges made for apartment
cleaning and painting and/or carpet cleaning or replacement. Plaintiffs and the Class
Members are entitled to restitution of this amount.
43. Plaintiffs are informed and believe, and based thereon allege, that
Defendants assess these charges in bad-faith, and therefore Plaintiffs and the Class
Members are entitled to statutory damages of up to twice the amount of their Security
Deposits, in additional to actual damages, as provided for by Civil Code section 1950.5.
SECOND CAUSE OF ACTION
(Unjust Enrichment)
(Against Defendants and DOES 1100)
44. Plaintiffs, on behalf of themselves and the Class Members, repeat and
incorporate by this reference the allegations contained in paragraphs 1 through 43, and
each and every part thereof with the same force and effect as though fully set forth
herein.
45. Defendants have unjustly enriched themselves by automatically charging
Plaintiffs and the Class Members for apartment cleaning and painting and/or carpet
cleaning or replacement, regardless of the actual condition of their apartment units, in
violation of Civil Code section 1950.5. Under the circumstances it would be unjust for
Defendants to retain this money.
46. These sums in equity and good conscience should be returned to Plaintiffs
and the Class Members. As such, Plaintiffs and the Class Members are entitled to the
imposition of a constructive trust on all sums that rightfully belong to them.
47. Plaintiffs and the Class Members are therefore entitled to restitution of
this money unlawfully retained.
/ / / /
/ / / /
/ / / /
/ / / /
EXHIBIT 2
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THIRD AMENDED COMPLAINT AND DEMAND FOR J URY TRIAL
THIRD CAUSE OF ACTION
(Violation of Business and Professions Code sections 17200 et seq.)
(Against Defendants and DOES 1100)
48. Plaintiffs, on behalf of themselves and the Class Members, repeat and
incorporate by this reference the allegations contained in paragraphs 1 through 47, and
each and every part thereof with the same force and effect as though fully set forth
herein.
49. The acts and practices engaged in by Defendants and described herein
constitute unlawful and unfair business practices, in that said conduct is immoral,
unethical, oppressive, unscrupulous, or substantially injurious to Plaintiffs, the Class
Members, and the general public. Accordingly, such conduct violates Business and
Professions Code sections 17200 et seq.
50. Defendants conduct as described herein is unlawful in that it
automatically charges for apartment cleaning and painting and/or carpet cleaning or
replacement at the end of a tenants tenancy, regardless of the actual condition of the
apartment unit in violation of Civil Code section 1950.5.
51. Defendants conduct is also unfair under this section in that it
automatically charges for apartment cleaning and painting and/or carpet cleaning or
replacement at the end of a tenants tenancy, regardless of the actual condition of the
apartment unit in violation of both its standardized leases and Civil Code section
1950.5.
52. Defendants conduct also constitutes unfair and deceptive business
practices by intentionally misleading tenants into believing they will not be charged for
apartment cleaning and painting and/or carpet cleaning or replacement if, at the end of
their tenancy, their apartment units are returned in the same condition as existed at the
beginning of the tenancy, subject to reasonable wear and tear.
/ / / /
/ / / /
EXHIBIT 2
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THIRD AMENDED COMPLAINT AND DEMAND FOR J URY TRIAL
53. Plaintiffs and the putative class members are therefore entitled to
restitutionary disgorgement from Defendants of the unlawfully withheld portions of
their Security Deposits.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, individually and on behalf of all other members of the
public similarly situated, pray for relief and judgment against Defendants, jointly and
severally, as follows:
1. For an order certifying the proposed class under Code of Civil Procedure
section 382;
2. That Plaintiffs be appointed as the representative of the Class;
3. That counsel for Plaintiffs be appointed as Class Counsel;
4. The Defendants provide to Class Counsel, immediately upon its
appointment, the names and most current contact information (addresses
and telephone numbers) of all the putative Class Members;
5. For prejudgment interest on the unlawful charges;
6. For actual damages caused by Defendants violation of Civil Code section
1950.5;
7. For statutory damages of twice the amount of the security deposits
pursuant to Civil Code section 1950.5;
8. For restitutionary disgorgement of the unlawful charges and prejudgment
interest;
9. For attorneys fees and costs of suit herein;
10. For the imposition of a constructive trust of all sums rightfully belonging
to Plaintiffs and the Class Members.
/ / / /
/ / / /
/ / / /
/ / / /
EXHIBIT 2
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THIRD AMENDED COMPLAINT AND DEMAND FOR J URY TRIAL
11. For such other and further relief as the court may deem just and proper.
Dated: November 5, 2013 R. REX PARRIS LAW FIRM
By:
Alexander R. Wheeler
Attorneys for Plaintiffs and the Putative Class
EXHIBIT 2
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#:179
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THIRD AMENDED COMPLAINT AND DEMAND FOR J URY TRIAL
DEMAND FOR JURY TRIAL
Plaintiffs, individually and on behalf of the members of the public similarly
situated, hereby demand a trial by a jury.
Dated: November 5, 2013 R. REX PARRIS LAW FIRM
By:
Alexander R. Wheeler
Attorneys for Plaintiffs
and the Putative Class
EXHIBIT 2
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#:180
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PROOF OF SERVICE
I am a resident of the State of California, over the age of eighteen years, and not a party
to the within action. My business address is: R. Rex Parris Law Firm 43364 10
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Street West,
Lancaster, CA 93534. On the below-mentioned date, I served the within document/s:
THIRD AMENDED COMPLAINT
by transmitting via facsimile the document(s) listed above to the fax number(s) set forth
below on this date.
by personally delivering the document(s) listed above to the person(s) at the address(es)
set forth below.
by placing the document(s) listed above in a sealed envelope with postage thereon fully
prepaid, in United States mail in the State of California at Lancaster, addressed as set forth
below.
by transmitting via e-mail the document(s) listed above to the e-mail address set forth
below on this date.
X BY ELECTRONIC SERVICE
X By electronically serving the document(s) described above via LexisNexis File &
Serve on all parties appearing on LexisNexis File & Serve service list as well as via E-Mail
directly to the following:
MCKENNA LONG & ALDRIDGE LLP
Christopher J . Healey, Esq.
chealey@mckennalong.com
J aikaran Singh, Esq.
jsingh@mckennalong.com
600 West Broadway, Suite 2600
San Diego, California 92101
Telephone: (619) 233-2960
Facsimile: (619) 744-3682
Executed on November 5, 2013 at Lancaster, California.
X I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.
EXHIBIT 2
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#:181
54457925
Oct282013
02:15PM
EXHIBIT 2
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#:182
1 R. ex arris Lsq. (SBN 96567)
Alexander R. Wheeler sq B2J9541)
2 KiUy zeto Esq. (SBN 25J
Johll M. Bickford, L(S N 28092)
3 R. REX 1ARRISLAWIR
1336110th Street West
1 Lancaster, Califria 93534
Telephone: 66J)949-2595
5 Facsimile: 66J949-7524
6 Attoreys fr Plaintif and the Putative Class
7 Christopher J. Real e
Esq. (SBN |O5798)
Jaikaran in Esq. 1SBN 20iJ55
8 mCbNNAO ALDRID1
6O0West Broadwa), Suite 26OO
9 a Diego, LA921O1-3372
Telephone: 619)236-11J1
10 acsrmile: 619615-5321
11 Attoreys fr Defndant ASN Warer Center, LLC
12
b1HOHLO1HO11H1 bA11O1 LA111OH1A
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1OHH1LO1P1YO1 1Ob APl111b- LV11Y1b1 LO1HHOb1
15 JENIFER VAGLE, on behalf of herself
and all others similarly situated;
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Plaintif,
v.
ASN WARER CENTER, LLC, a
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Delaware limited liability corporation, and
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DOES 1through100, inclusive;
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Defndants.
Case No. BC480931
LLASSACTION
JOINTbTATUSHPORT
Date: November 1,2013
Time: 1.30p.m.
Dept.: 3O7
Assigned fr All Purposes to the Honorable
William F. Highberger, Department 3O7|
Jury Trial Date: None Set
Complaint Filed: March 11,2O12
JOIT STATUS REPORT
EXHIBIT 2
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#:183
1 Pursuant to the Court's October 8, 2013 order, Plaintif Jennifr Vagle ("Plaintiff') and
2 Defndant ASN Waer Center LLC ("Defndant") submit the fllowing joint status report in
3 preparation fr the further status conference scheduled fr November 1, 2013 at 1 :30 p.m.
4
5 I. DISPUTED DISCOVERY
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On October 8, the Court vacated until further notice all further briefng on Plaintiffs
Motion to Compel Further Responses to Requests fr Admission (Set One), Motion to Compel
Further Reponses to Requests fr Production of Documents (Set One), Motion to Compel Further
Responses to Form Interrogatories (Set One), and Motion to Compel Further Responses to
Special Interrogatories (Set One), and Defndant's Motion to Compel Further Discovery
Reponses. The Court ordered the parties to continue to meet and confer on the disputed
discovery and submit a joint status report identifying which discovery items are still in dispute.
The Court acknowledged that the parties would retain their respective rights to further briefng
(i.e. opposition briefs and reply briefs) on their motions to compel.
A. Plaintiffs Discover
1. Class Contact Infrmation (Special Interrogatory No. 1)
The parties were unable to reach an agreement on Plaintiffs request fr the class contact
infrmation relative to ASN Warer Center, LLC. The parties wish to discuss this matter with
the Court at the November 1 status conference.
2. Class Infrmation on Security Deposits at Archstone Warner Center
(Special Interrogatories Nos. 2-17, 22)
Defnse counsel has produced this information to Plaintifs counsel. Plaintif reserves
the right to review the document production befre determining whether to withdraw her motion
to compel further responses on these discovery items.
Ill
Ill
Ill
JOIT STATUS REPORT
EXHIBIT 2
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#:184
1
2
3. Complaints and Small Claims Lawsuits (Special Interrogatories Nos.
18-21; Requests fr Production Nos. 2-5)
3 The parties have agreed to continue to meet and confer on these discovery items after
4
Plaintif has had time to review the data produced by Defndant related to class infrmation on
5 security deposits at the Archstone Waer Center apartment community.
6
4. Identifcation of Other Archstone Apartments Using the Same
7
Standardized Forms (Special Interrogatories Nos. 24, 26, 28, 30, 32,
8
34, 36, 38, 40; Requests fr Admission Nos. 1-10; Form
9
Interrogatory No. 17.1)
10 Plaintif has agreed to withdraw these requests and modif this discovery into a single
11 request fr the identifcation of other Archstone apartment communities with access to the
12
Operations Manual already produced by Defndant. Based on this modifcation, and without
13 waiver of any objections, Defndant has agreed to respond this modifed request.
14
5. Full Identifcation of Witnesses (Special Interrogatories 29, 31, 33,
15
34, 37, 39, 54, 57, 60, 63, 76; Form Interrogatories Nos. 12.1, 15.1,
16
17.1)
17
The parties have agreed to continue to meet and confr on these discovery items after
18 Plaintif further researches the legal issues related to these discovery items.
19
6. Archstone's Website (Special Interrogatory No. 65)
20
Plaintif has agreed to modify this discovery item so it is not limited to an entity that
2 1
maintained, updated or operated the website at w.archstoneapartments.com. Based on this
22
modifcation, and without waiver of any objections, Defndant has agreed to respond this
23 modifed request.
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7. Training Materials and Documents (Special Interrogatories 6672)
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Plaintif has agreed to withdraw these requests and modify this discovery into a single
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request that seeks the identifcation of taining materials that were used at the Archstone Warner
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Center apartment community. Based on this modifcation, and without waiver of any objections,
28 Defndant has agreed to respond this modifed request.
2
JOIT STATUS REPORT
EXHIBIT 2
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#:185
' ...
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8. Archstone's Three Guarantees (Special Interrogatories 7375)
Plaintif has ageed to withdraw these discover
y
items.
B. Defendant's Discovery
1. Witness Identity and Infrmation (orm Interrogatory No. 12.1)
Te parties were unable to reach a ageement on Defndant's frm interogatory request
fr the identity of witnesses ad related contact inormation. The paties wish to discuss this
matter with the Court at the November 1 status conference.
2. Facts Supporting Requests fr Admission Denials (Form Interrogatory
17.1 as it relates to Requests fr Admission Nos. 2, 3, 5, 6, 7, 8, 9 and 11)
The paies were unable to reach an agreement on Defndant's Form Interogatory No.
17.l as it relates to Requests fr Admission Nos. 2, 3, 5, 6, 7, 8, 9 and 11. The parties wish to
discuss this matter with the Cour at the November 1 status confrence.
Date: October 28, 2013
Date: October 28, 2013
usw 804029148.l
R. RX PARS LAW FIRM
B
y
:
r k
Attoreys fr P aintif and
the Putative Class
LLP
3
JOIT STATUS REPORT
EXHIBIT 2
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PROOF OF SERVICE
I a a resident of the State of Califria, over the age of eighteen years, and not a party
to the within action. My business address is: R. Rex Paris Law Firm 43364 10
th
Street West,
Lancaster, CA 93534. On the below-mentioned date, I served the within document/s:
JOINT STATUS RPORT
by transmitting via fcsimile the document(s) listed above to the fx number(s) set forth
below on this date.
_ by personally delivering the document(s) listed above to the person(s) at the address( es)
set frth below.
_ by placing the document(s) listed above in a sealed envelope with postage thereon flly
prepaid, in United States mail in the State of Califria at Lancaster, addressed as set frth
below.
_ by transmitting via e-mail the document(s) listed above to the e-mail address set frth
below on this date.
__ BY ELECTRONIC SERVICE
___ By electronically serving the document(s) described above via LexisNexis File &
Serve on all parties appearing on LexisNexis File & Serve service list as well as via E-Mail
directly to the fllowing:
MCKNNA LONG & ALDRDGE LLP
Christopher J. Healey, Esq.
chealeckennalong.com
Jaikaran Singh, Esq.
j singh@mckennalong.com
600 West Broadway, Suite 2600
San Diego, Califria 92101
Telephone: (619) 233-2960
Facsimile: (619) 744-3682
Executed on October 28, 2013 at Lancaster, Califria.
X I declare uder penalty of perjury under the laws of the State of Califria that the above
is true and correct.
1 PAUL HASTINGS LLP
HOWARD M. PRIVETTE (SB# 137216)
2 NICHOLAS J. BEGAKIS (SB# 253588)
BETH MUELLER (SB# 278283)
3 515 South Flower Street
Twenty-Fifth Floor
4 Los Angeles, CA 9007 1-2228
Telephone: (213) 683-6000
5 Facsimile: (213) 627-0705
6 Attorneys for Defendants
ARCHSTONE BUILDERS INCORPORATED;
7 ARCHSTONE PROPERTY MANAGEMENT
(CALIFORNIA) INCORPORATED; SMITH FOUR,
8 INC.; and SMITH TWO, INC.
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF LOS ANGELES
252012
JENNIFER VAGLE, on behalf of herself CASE NO. BC480931
W,
Rftq
3)4
13
and all others similarly situated,
STIPULATION TO EXTEND
14 Plaintiff, DEFENDANTS TIME TO RESPOND TO
FIRST AMENDED COMPLAINT;
15 vs.
16 ARCHSTONE BUILDERS [PROPOSED] ORDER THEREON
INCORPORATED, a Delaware
17 corporation; ARCHSTONE PROPERTY
MANAGEMENT (CALIFORNIA) Orig. Response Date: September 26, 2012
18 INCORPORATED, a Delaware New Response Date: September 28, 2012
corporation; SMITH FOUR, INC. dlb/a
19
Archstone-Smith Four, Inc., a Delaware Dept: 307
corporation; and SMITH TWO, INC. dlb/a Judge: Hon. William F. Highberger
20
Archstone-Smith Two, Inc., a Delaware
corporation; and Does 1 through 100,
21
inclusive,
22 Defendants.
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LEGAL_US_W # 72865191.2
STIP. TO EXTEND DEFENDANTS TIME TO RESPOND TO FIRST AMENDED COMPLAINT
EXHIBIT 2
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#:187
PAUL HASTINGS LLP
HOWARD M. PRIVEflE (SB# 137216)
NICHOLAS J. BEGAKIS (SB# 253588)
BETH MUELLER(SB# 278283)
515 South Flower Street
Twenty-Fifth Floor
Los Angeles, CA 90071-2228
Telephone: (213) 683-6000
Facsimile: (213) 627-0705
Attorneys for Defendants
ARCHSTONE BUILDERS INCORPORATED;
ARCHSTONE PROPERTY MANAGEMENT
(CALIFORNIA) INCORPORATED; SMITH FOUR,
INC.; and SMITH TWO, INC.
JENNIFER VAGLE, on behalf of herself
and all others similarly situated,
Plaintiff,
ARCHSTONE BUILDERS
INCORPORATED, a Delaware
corporation; ARCHSTONE PROPERTY
MANAGEMENT (CALIFORNIA)
INCORPORATED, a Delaware
corporation; SMITH FOUR, INC. dlb/a
Archstone-Smith Four, Inc., a Delaware
corporation; and SMITH TWO, INC. d/b/a
Archstone-Smith Two, inc., a Delaware
corporation; and Does 1 through 100,
inclusive,
Defendants.
CASE NO. BC48093 1
STIPULATION TO EXTEND
DEFENDANTS TIME TO RESPOJD TO
FIRST AMENDED COMPLAINT;
Dept: 307
Judge: Hon. William F. Highberger
28
LEGAL US W #72865191,2
Sep2 201
03:54PM
SUPERIOR COURT OF THE STATE OF CALWORNIA
COUNTY OF LOS ANGELES
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vs.
[PROPOSED] ORDER THEREON
Orig. Response Date:
New Response Date:
September 26, 2012
September 28, 2012
STIP, TO EXTEND DEFENDANTS TIME TO RESPOND TO FlRST AMENDED COMPLAINT
EXHIBIT 2
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STIPULATION
2 Defendants Archstone Builders Incorporated, Archstone Property Management
3 (California) Incorporated, Smith Four, Inc., and Smith Two, Inc. (collectively, Defendants) and
4 plaintiff Jennifer Vagle (Plaintiff), acting through their respective counsel, hereby stipulate and
5 agree to the following:
6 WHEREAS, on August 8, 2012 the Court sustained Defendants Demurrers with
7 leave to amend and granted Defendants Motion to Strike with leave to amend;
8 WHEREAS, Plaintiff filed a First Amended Complaint (FAC) on August22,
9 2012;
10 WHEREAS, Defendants response to the FAC is currently due on September 26,
11 2012;
12 WHEREAS, Defendants Motion to Quash Notices of Deposition and For A
13 Protective Order Staying Discovery, Plaintiffs Motion to Compel Deposition Testimony; and
14 Defendants Motion for Sanctions are fully briefed and set for hearing on September 26, 2012, at
15 9:00a.m.;
16 WHEREAS, Defendants have requested a brief extension of time to respond to the
17 FAC following the hearing on September 26, 2012;
18 WHEREAS, Plaintiff has agreed to grant a two-day extension of time to respond
19 to the FAC, through and including September 28, 2012;
20 /7/
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LEGAL US W# 72865191.2
STIP. TO EXTEND DEFENDANTS TIME TO RESPOND TO FIRST AMENDED COMPLAINT
EXHIBIT 2
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1 WHEREFORE, IT IS HEREBY STIPULATED AND AGREED THAT, as to
2 those Defendants who have been served, their time to answer, demur, move, or otherwise respond
3 to the FAC shall be extended through and including September 28, 2012. Defendants are not
4 waiving, and this Stipulation and Order shall not prejudice, Defendants right to assert any and all
5 arguments and defenses they may have with respect to the FAC and the alleged causes of action
6 therein.
7
DATED: September 25, 2012 PAUL HASTINGS LLP
NICHOLAS J. BEGAKIS
Attorneys for Defendants
11
ARCHSTONE BUILDERS INCORPORATED;
ARCHSTONE PROPERTY MANAGEMENT
12
(CALIFORNIA) INCORPORATED; SMITH FOUR
13
INC.; and SMITH TWO, INC.
14
DATED: September 25, 2012 R. REX PARRIS LAW FIRM
By_________________________________
Y SZETO
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Attorneys for Plainti
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LEGAL_US_W # 72865191.2
-2-
STIP. TO EXTEND DEFENDANTS TIME TO RESPOND TO FIRST AMENDED COMPLAINT V
EXHIBIT 2
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#:190
1
[PROPOSED1 ORDER
2 The Court having reviewed the Parties Stipulation to Extend Defendants Time to
3 Respond to the First Amended Complaint, and good cause appearing therefore, IT IS HEREBY
4 ORDERED THAT:
5 As to those Defendants who have been served, their time to answer, demur, move,
6 or otherwise respond to the FAC shall be extended through and including September 28, 2012.
7 Defendants are not waiving, and this Stipulation and Order shall not prejudice, Defendants right
8 to assert any and all arguments and defenses they may have with respect to the FAC and the
9 alleged causes of action therein.
10
11 IT IS SO ORDERED.
12
13
Dated:
__________________ ____________________________________
Honorable William F. Highberger
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LEGAL_US_W 72865191.2
_3_
STIP. TO EXTEND DEFENDANTS TIME TO RESPOND TO FIRST AMENDED COMPLAINT
EXHIBIT 2
Page 189
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 43 of 124 Page ID
#:191
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA
)
)
ss:
3 CITY OF LOS ANGELES AND COU11TY OF
LOS ANGELES
4
5 I am employed in the City of Los Angeles and County of Los Angeles, State
of California. I am over the age of 18, and not a party to the within action. My business
6 address is 515 South Flower Street, Twenty-Fifth Floor, Los Angeles, California 90071-
2228.
7
On September 25, 2012, I served the foregoing document(s) described as:
8
STIPULATION TO EXTEND DEFENDANTS TIME TO RESPOND TO FIRST
9 AMENDED COMPLAINT;
[PROPOSEDI
ORDER THEREON
10
on the interested parties as follows:
11
R. Rex Parris, Esq. (rrparrisrrexparris.com)
12
Alexander R. Wheeler, Esq.
(awheeler@rrexparris.com)
Kitty Szeto, Esq.
(kszeto@rrexparris.com)
13
R.RexParriLawFirm
14
43364 10th Street West
Lancaster, California 93534
15 Phone: (661) 949-2595
Fax: (661) 949-7524
VIA LEXIS NEXIS FILE & SERVE:
17 . . .
By posting directly on the LexisNexis File and Serve website at
18
http://fi1eandserve.lexisnexis.com.
19
20
I declare under penalty of perjury under the laws of the State of California
that the above is true and correct.
21
Executed on September 25, 2012, at Los Angeles, California.
24 ,/Maggie Icart
25
26
27
28
PROOF OF SERVICE
EXHIBIT 2
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#:192
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EXHIBIT 2
Page 191
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 45 of 124 Page ID
#:193
Icart, Maggie J.
From: LexisNexis File & Serve <TransactionReceipt@fileandserve.lexisnexis.com>
Sent: Tuesday, September 25, 2012 3:56 PM
To: Icart, Maggie J.
Subject: Case: BC480931; Transaction: 46645106 Transaction Receipt
To: Maggie Icart
Subject: Transaction Receipt
This email is to confirm receipt of your documents. The transaction option you selected was Serve Only - Public. The
details for this transaction are listed below.
Court: CA Superior Court County of Los Angeles
Case Name: Vagle, Jennifer vs Archstone Builders Inc et al
Case Number: BC480931
Transaction ID: 46645106
Document Title(s):
Stipulation to Extend Defendants Time to Respond to First Amended Complaint; [Proposed] Order Thereon (5
pages)
Authorized Date/Time: Sep 25 2012 3:54PM PDT
Authorizer: Nicholas James Begakis
Authorizers Organization: Paul Hastings LLP-Los Angeles
Sending Parties:
Archstone Builders Inc
Archstone Property Management
Smith Four
Smith Two
Served Parties:
California Superior Court County of Los Angeles
Vagle, Jennifer
Thank you for using LexisNexis File & Serve.
Questions? For prompt, courteous assistance please contact LexisNexis Customer Service by phone at 1-888-529-7587
(24/7).
1
EXHIBIT 2
Page 192
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 46 of 124 Page ID
#:194
LexisNexis File & Serve Transaction Receipt
Page 1 of2
Transaction ID:
Submitted by:
Authorized by:
Authorize and file on:
46645106
Maggie Icart, Paul F-tastings LLP-Los Angeles
Nicholas James Begakis, Paul Hastings LLP-Los Angeles
Sep 25 2012 3:54PM PDT
Court: CA Superior Court County of Los Angeles
Division/Courtroom: N/A
Case Class: Civil-Vagle vs Archstone Builders Inc (BC480931)
Case Type: General Civil
Case Number: BC480931
Case Name: Vagle, Jennifer vs Archstone Builders Inc et al
Transaction Option: Serve Only - Public
Billing Reference: 77991.00004
Read Status for e-service: Not Purchased
Documents List
1 Document(s)
Attached Document, 5 Pages Document ID: 51694153
Document Type: Access: Statutory Fee: Linked:
Stipulation Secure Public $0.00
Document title:
Stipulation to Extend Defendants Time to Respond to First Amended Complaint; [Proposed] Order Thereon
Exrand All
[El Sending Parties (12)
Party
Attorney Firm Attorney Type
Party
Type
Begakis, Nicholas Paul Hastings LLP-Los Attorney in
Archstone Builders Inc Defendant
James Angeles Charge
Archstone Builders Inc Defendant Privette, Howard M
Paul Hastings LLP-Los Attorney in
Angeles Charge
Archstone Builders Inc Defendant Mueller, Beth
Paul Hastings LLP-Los Attorney in
Angeles Charge
Archstone Property
Defendant
Begakis, Nicholas Paul Hastings LLP-Los Attorney in
Management James Angeles Charge
Archstone Property
Defendant Privette, Howard M
Paul Hastings LLP-Los Attorney in
Management
Angeles Charge
Archstone Property
Defendant Mueller, Beth
Paul Hastings LLP-Los Attorney in
Management
Angeles Charge
Begakis, Nicholas Paul Hastings LLP-Los Attorney in
Smith Four Defendant
James Angeles Charge
Paul Hastings LLP-Los Attorney in
Smith Four Defendant Privette, Howard M
Angeles Charge
Smith Four Defendant Mueller, Beth
Paul Hastings LLP-Los Attorney in
Angeles Charge
Begakis, Nicholas Paul Hastings LLP-Los Attorney in
Smith Two Defendant
James Angeles Charge
Paul Hastings LLP-Los Attorney in
Smith Two Defendant Privette, Howard M
Angeles Charge
Smith Two Defendant Mueller, Beth
Paul Hastings LLP-Los Attorney in
Angeles Charge
El Recipients (4)
El Service List (4)
https:!/w3 .fileandserve . lexi snexis.comlWebServer/WebPages/FileAndServe/prcReviewSu... 9/25/2012
EXHIBIT 2
Page 193
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#:195
Page 2 of 2
Delivery
Party Party Type Attorney Firm
Attorney
Method
Option
Type
California Superior California Superior Court-Los
Interested Highberger, Attorney in E
Service Court County of Los
Party William F
Angeles County-Central Civil
charge Service
Angeles
West Courthouse
Attorney in E
Service Vagle, Jennifer Plaintiff Szeto, Kitty R Rex Parris Law Firm
Charge Service
Attorney in E
Wheeler,
R Rex Parris Law Firm
Service Vagle, Jennifer Plaintiff
Alexander R Charge Service
Attorney in E
Bickford, John
R Rex Parris Law Firm
Service Vagle, Jennifer Plaintiff
M
Charge Service
Fi Additional Recipients (0)
Case Parties
About LexisNexis Terms & Conditions Privacy Customer Support - 1-888-529-7587
LexisNexis
Copyright 2012 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.
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EXHIBIT 2
Page 194
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#:196
12
PAUL HASTfNGS LLP
HOWARD M. PRIVETTE (SB# 137216)
NICHOLAS J. BEGAKIS (SB# 253588)
BETH MUELLER (SB# 278283)
515 South Flower Street
Twenty-Fifth Floor
Los Angeles, CA 90071-2228
Telephone: (213) 683-6000
Facsimile: (213) 627-0705
Attorneys for Defendants
ARCHSTONE COMMUNITIES, LLC;
ARCHSTONE BUILDERS INCORPORATED;
ARCHSTONE PROPERTY MANAGEMENT
(CALIFORNIA) NC.; SMITH TWO, NC.;
and SMITH FOUR, INC.
cQ1v 1
F
SEp
282012
John
3
OW
L4ECCF/
Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
JENNIFER VAGLE, on behalf of herself
and all others similarly situated,
Plaintiff,
ARCHSTONE COMMUNITIES, LLC, a
Delaware limited liability corporation;
ARCHSTONE BUILDERS
INCORPORATED, a Delaware
corporation; ARCHSTONE PROPERTY
MANAGEMENT (CALIFORNIA)
INCORPORATED, a Delaware
corporation, SMITH FOUR, iNC. dlb/a
Archstone-Smith Four, Inc., a Delaware
corporation; SMITH TWO, INC., d/b/a
Archstone-Smith Two, Inc., a Delaware
corporation, and DOES 1 through 100,
inclusive,
Defendants.
CASE NO. BC48093 1
DEFENDANTS NOTICE OF HEARING
ON DEMURRERS; AND
DEMURRERS TO FIRST AMENDED
COMPLAINT
[Memorandum of Points and Authorities,
Declaration of Nicholas J. Begakis and
Exhibits A-C, and Request for Judicial
Notice filed separately]
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vs.
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Date:
Time:
Dept:
Judge:
November 20, 2012
9:00 a.m.
307
Hon. William F. Highberger
DEFENDANTS NOTICE OF HEARING ON DEMURRERS AND DEMURRERS TO FAC
EXHIBIT 2
Page 195
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 49 of 124 Page ID
#:197
PAUL HASTINGS LLP
HOWARD M. PRIVETTE (SB# 137216)
NICHOLAS J. BEGAKIS (SB# 253588)
BETH MUELLER (SB# 278283)
515 South Flower Street
Twenty-Fifth Floor
Los Angeles, CA 90071-2228
Telephone: (213) 683-6000
Facsimile: (213) 627-0705
Attorneys for Defendants
ARCHSTONE COMMUNITIES, LLC;
ARCHSTONE BUILDERS INCORPORATED;
ARCHSTONE PROPERTY MANAGEMENT
(CALIFORNIA) INC.; SMITH TWO, INC.;
and SMITH FOUR, INC.
JENNIFER VAGLE, on behalf of herself
and all others similarly situated,
Plaintiff,
ARCHSTONE COMMUNITIES, LLC, a
Delaware limited liability corporation;
ARCHSTONE BUILDERS
INCORPORATED, a Delaware
corporation; ARCHSTONE PROPERTY
MANAGEMENT (CALIFORNIA)
INCORPORATED, a Delaware
corporation, SMITH FOUR, INC. dlb/a
Archstone-Smith Four, Inc., a Delaware
corporation; SMITH TWO, INC., d/b/a
Archstone-Smith Two, Inc., a Delaware
corporation, and DOES I through 100,
inclusive,
Defendants.
DEFENDANTS NOTICE OF hEARING
ON DEMURRERS; AND
DEMURRERS TO FIRST AMENDED
COMPLAINT
[Memorandum of Points and Authorities,
Declaration of Nicholas J. Begakis and
Exhibits A-C, and Request for Judicial
Notice filed separately
November 20, 2012
9:00 a.m.
307
Hon. William F. Highberger
Sep28 2O1
04:O2PM
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
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CASE NO. BC480931
vs.
Date:
Time:
Dept:
Judge:
DEFENDANTS NOTICE OF HEARING ON DEMURRERS AND DEMURRERS TO FAC
EXHIBIT 2
Page 196
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#:198
1 TO PLAINTIFF AND HER ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that, at 9:00 a.m. on November 20, 2012, or as soon
3 thereafter as this matter may be heard before the Honorable William F. Highberger in Department
4 307 of the Los Angeles Superior Court, located at 600 South Commonwealth Avenue, Los
5 Angeles, California 90005, Defendants Archstone Communities, LLC, Archstone Builders
6 Incorporated, Archstone Property Management (California) Incorporated, Smith Four, Inc., and
7 Smith Two, Inc. (collectively, Defendants), and each of them, will and hereby do request that
8 the Court sustain their Demurrers to Plaintiffs First Amended Complaint (FAC) in this action,
9 and to each purported cause of action alleged therein, and order the dismissal of the FAC and
10 such causes of action as against each of them, with prejudice. The Demurrers are made pursuant
11 to California Code of Civil Procedure Section 430.10(e) on the grounds that each cause of action
12 alleged in the FAC fails to state facts sufficient to constitute a cause of action.
13 The Demurrers are based on the FAC; this Notice of Hearing on Demurrers and attached
14 Demurrers; the Memorandum of Points and Authorities, Request for Judicial Notice, Declaration
15 of Nicholas J. Begakis and Exhibits A-C in support hereof, all filed and served concurrently
16 herewith; the pleadings, records and files in this action including, but not limited to, Plaintiffs
17 Opposition to Defendants Motion to Quash Deposition Notices, filed on August 15, 2012, and
18 the Courts rulings on Defendants Demurrers to Plaintiffs Complaint and Motion to Strike, as
19 reflected in the Notice of Ruling filed on August 9, 2012; the reply papers filed in support of the
20 Demurrers; and upon all other argument and matters as may be permitted in support of the
21 Demurrers prior to the Courts ruling.
22
DATED: September 28, 2012 PAUL HASTINGS LLP
23
24
By:
HOWA M. PR VETTE
25
Attorneys for Defendants ARCHSTONE
COMMUNITIES, LLC; ARCHSTONE BUILDERS
26
INCORPORATED; ARCHSTONE PROPERTY
MANAGEMENT (CALIFORNIA) INC.; SMITH TWO
27
INC.; and SMITH FOUR, INC.
28
1
DEFENDANTS NOTICE OF HEARING ON DEMURRERS AND DEMURRERS TO FAC
EXHIBIT 2
Page 197
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 51 of 124 Page ID
#:199
DEMURRERS TO COMPLAINT
1
_____________________________________________________________
2 Defendants Archstone Communities, LLC, Archstone Builders Incorporated, Archstone
3 Property Management (California) Incorporated, Smith Four, Inc., and Smith Two, Inc.
4 (collectively, Defendants), and each of them, hereby demur to the First Amended Complaint
5 (FAC) filed by Plaintiff on the following grounds:
6 Demurrers of Each Defendant to First Cause of Action for Violations of Civil Code 1950.5
7 1. The purported First Cause of Action for Violations of California Civil
8 Code
1950.5 fails to state facts sufficient to constitute a cause of action. Cal. Civ. Proc. Code
9 430.10(e).
10 Demurrers of Each Defendant to Second Cause of Action for Unjust Enrichment
11 2. The purported Second Cause of Action for Unjust Enrichment fails to state
12 facts sufficient to constitute a cause of action. Cal. Civ. Proc. Code
430.10(e).
13
Demurrers of Each Defendant to Third Cause of Action for Violation of Business and
14
Professions Code 17200, et seq.
15
3. The purported Third Cause of Action for Violation of Business and
16
Professions Code
430.10(e).
18
DATED: September 28, 2012 PAUL
19
20
21
22
Attorneys for Defendants
ARCHSTONE COMMUNITIES, LLC; ARCHSTONE
23
BUILDERS INCORPORATED; ARCHSTONE
PROPERTY MANAGEMENT (CALIFORNIA) INC.;
24
SMITH TWO, INC.; and SMITH FOUR, INC.
25
26
LEGAL US W # 72888975.2
27 - -
28
-2-
HOW M. PRIVETTE
DEFENDANTS NOTICE OF HEARING ON DEMURRERS AND DEMURRERS TO FAC
EXHIBIT 2
Page 198
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#:200
1
PROOF OF SERVICE
2 STATE OF CALIFORNIA
)
)
ss:
3 CITY OF LOS ANGELES AND COUNTY OF
LOS ANGELES
4
5 I am employed in the City of Los Angeles and County of Los Angeles, State
of California. I am over the age of 18, and not a party to the within action. My business
6 address is 515 South Flower Street, Twenty-Fifth Floor, Los Angeles, California 90071-
2228.
7
On September 28, 2012, I served the foregoing document(s) described as:
8
DEFENDANTS NOTICE OF HEARING ON DEMURRERS; AND
9 DEMURRERS TO FIRST AMENDED COMPLAINT
10 on the interested parties as follows:
11 R. Rex Parris, Esq. (rrparrisrrexparris.com)
Alexander R. Wheeler, Esq.
(awheeler@rrexparris.com)
12
Kitty Szeto, Esq.
(kszeto@rrexparris.com)
13
R. Rex Parris Law Firm
43364 10th Street West
14
Lancaster, California 93534
Phone: (661) 949-2595
15 Fax: (661) 949-7524
16
VIA LEXIS NEXIS FILE & SERVE:
17
By posting directly on the LexisNexis File and Serve website at
http://fileandserve.lexisnexis.com.
18
19
I declare under penalty of perjury under the laws of the State of California
20
that the above is true and correct.
21
Executed on September 28, 2012, at Los Angeles, California.
aggie Icart
24
/
25
26
27
28
PROOF OF SERVICE
EXHIBIT 2
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#:201
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EXHIBIT 2
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Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 54 of 124 Page ID
#:202
Icart, Maggie J.
From: LexisNexis File & Serve <Transaction Receipt@fileandserve.lexisnexis.com>
Sent: Friday, September 28, 2012 4:05 PM
To: Icart, Maggie J.
Subject: Case: BC480931; Transaction: 46719230 Transaction Receipt
To: Maggie Icart
Subject: Transaction Receipt
This email is to confirm receipt of your documents. The transaction option you selected was Serve Only - Public. The
details for this transaction are listed below.
Court: CA Superior Court County of Los Angeles
Case Name: Vagle, Jennifer vs Archstone Builders Inc et al
Case Number: BC480931
Transaction ID: 46719230
Document Title(s):
Defendants Notice of Hearing on Demurrers; and Demurrers to First Amended Complaint (4 pages)
Memorandum of Points and Authorities in Support of Defendants Demurrers to the First Amended Complaint
(21 pages)
Defendants Request for Judicial Notice in Support of Demurrers to First Amended Complaint (4 pages)
Declaration of Nicholas J. Begakis in Support of Defendants Request for Judicial Notice in Support of Demurrers
(41 pages)
Authorized Date/Time: Sep 28 2012 4:02PM PDT
Authorizer: Nicholas James Begakis
Authorizers Organization: Paul Hastings LLP-Los Angeles
Sending Parties:
Archstone Builders Inc
Archstone Property Management
Smith Four
Smith Two
Served Parties:
California Superior Court County of Los Angeles
Vagle, Jennifer
Thank you for using LexisNexis File & Serve.
Questions? For prompt, courteous assistance please contact LexisNexis Customer Service by phone at 1-888-529-7587
(24/7).
1
EXHIBIT 2
Page 201
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 55 of 124 Page ID
#:203
LexisNexis File & Serve Transaction Receipt
Page 1 of2
Transaction ID:
Submitted by:
Authorized by:
Authorize and file on:
46719230
Maggie Icart, Paul Hastings LLP-Los Angeles
Nicholas James Begakis, Paul Hastings LLP-Los Angeles
Sep 28 2012 4:02PM PDT
Court:
CA Superior Court County of Los Angeles
Division/Courtroom: N/A
Case Class: Civil-Vagle vs Archstone Builders Inc (BC480931)
Case Type: General Civil
Case Number: BC480931
Case Name: Vagle, Jennifer vs Archstone Builders Inc et al
Transaction Option: Serve Only - Public
Billing Reference: 77991.00004
Read Status for e-service: Not Purchased
Documents List
4 Document(s)
Attached Document, 4 Pages Document ID: 51804844
Document Type: Access: Statutory Fee: Linked:
Notice Secure Public $0.00
Document title:
Defendants Notice of Hearing on Demurrers; and Demurrers to First Amended Complaint
Attached Document, 21 Pages Document ID: 51804920
Related Document ID: 51804844
Document Type: Access: Statutory Fee: Linked:
Memorandum Secure Public $0.00
Document title:
Memorandum of Points and Authorities in Support of Defendants Demurrers to the First Amended Complaint
Attached Document, 4 Pages Document ID: 51804969
Related Document ID: 51804844
Document Type: Access: Statutory Fee: Linked:
Request Secure Public $0.00
Document title:
Defendants Request for Judicial Notice in Support of Demurrers to First Amended Complaint
Attached Document, 41 Pages Document ID: 51805040
Related Document ID: 51804844
Document Type: Access: Statutory Fee: Linked:
Affidavit Secure Public $0.00
Document title:
Declaration of Nicholas J. Begakis in Support of Defendants Request for Judicial Notice in Support of Demurrers
Expand All
[El Sending Parties (12)
Party
Party
Type
Attorney Firm Attorney Type
Begakis, Nicholas Paul Hastings LLP-Los Attorney in
Archstone Builders Inc Defendant
James Angeles Charge
Paul Hastings LLP-Los Attorney in
Archstone Builders Inc Defendant Privette, Howard M
Angeles Charge
1950.5(1). Here, Plaintiff has sued these Defendants precisely because they
7 are not her landlord because they do not appear to be associated with any particular LLC
8 apartment community. Under the circumstances, then, no claim will lie under Section 1950.5.
9 Similarly, Plaintiff cannot state a claim under the UCL, because she fails to allege any facts
10 showing that any of these Defendants engaged in any unfair, unlawful or fraudulent conduct. See
11 Khoury v. Malys of Cal., Inc., 14 Cal. App. 4th 612, 619 (1993) (A plaintiff alleging unfair
12 business practices under [Section 17200] must state with reasonable particularity the facts
13 supporting the statutory elements of the violation.).
14 Plaintiff tries to mask the shortcomings of her allegations by taking these five randomly-
15 selected Defendants and re-naming them collectively as ARCHSTONE (a definition that
16 excludes Plaintiffs landlord as well as the other of the almost 200 Archstone entities identified
17 by Plaintiff). (See FAC,
27.)
7 According to the Lease, ASN Warner Center, LLC, as the owner of Archstone Warner
8 Center and Plaintiffs landlord, would return the Security Deposit within 21 days of the Lease
9 End Date (as defined in the Lease). (FAC, Ex. A at 5,
28.) On
17 August 25, 2010, well within the 21-day time period set forth in both the statute and the Lease,
18 Plaintiff was provided with a Statement of Deposit showing a withholding of $362.13. (Id.
29.)
19 Of this amount, Plaintiff contests the retention of only $282.27, representing deductions of $80.00
20 for apartment cleaning; $60.00 for carpet cleaning; and $142.27 for painting. (Id.)
21 Plaintiff alleges that ARCHSTONE which does not include her landlord, ASN Warner
22 Center, LLC has a systematic policy and procedure of charging tenants for apartment cleaning,
23 painting and carpet cleaning and failing to provide adequate explanations for the monies
24 withheld. (IcL
32.) On this basis, Plaintiff seeks to represent a class of all persons except those
25 who were evicted pursuant to Civil Code section 1161, who entered into written residential rental
26 agreements with ARCHSTONEs California apartment complexes and were charged for
27 apartment cleaning and painting and/or carpet cleaning or replacement within the last four years.
28 (Id.J35.)
3
MEM. OF POINTS AND AUTHORITIES IN SUPPORT OF DEM1JRRERS TO FIRST AMENDED COMPLAINT
EXHIBIT 2
Page 212
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 66 of 124 Page ID
#:214
1 III. STANDARD ON DEMURRER
2 A demurrer to a complaint will be sustained if the complaint does not state facts sufficient
3 to state a cause of action. Cal. Civ. Proc. Code
1950.5(1).
25 Here, the Lease attached to the FAC reveals that Plaintiffs landlord was ASN Warner
26 Center, LLC not any of the five Defendants named in this case. (See FAC, Ex. A at 1.) And
27 there is no factual allegation, nor could there be, that any of these Defendants is a successor in
28
4
MEM. OF POINTS AND AUTHORITIES N SUPPORT OF DEMLIRRERS TO FIRST AMENDED COMPLAINT
EXHIBIT 2
Page 213
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 67 of 124 Page ID
#:215
1 interest to ASN Warner Center, LLC, which is an active entity doing business in the State of
2 California. 2Consequently, this claim will not lie against any of the Defendants. 3
3 Plaintiff cannot plead around the statute by trying to assert alter ego allegations. 4There
4 is no authority for plaintiffs unsupported argument that the doctrine of alter ego somehow
5 obviates compliance with
U
statutory requirements. Medix Ambulance Serv. v. Super. Ct.
6 (Collado), 97 Cal. App. 4th 109, 116 (2002). In Medix, the plaintiff brought statutory
7 employment claims against a number of defendants, including certain defendants that she failed
8 to name in her administrative charges as required by statute. Id. at 113. Plaintiff attempted to
9 cure this defect by alleging that the previously unnamed defendants were the alter egos of her
10 employer (which had been previously named). Id. The Court rejected this argument, noting that
11 the statute allowed claims against only certain defendants and that the alter ego allegations did not
12 obviate the statutory requirement. Id. at 116. The same is true here.
13 Furthermore, even if Plaintiff had named her actual landlord as a defendant, she could not
14 sustain her claim in this case. Section 1950.5 establishes that [t]he landlord may claim of the
15 security i.e., reduce the security deposit by any amount reasonably necessary to
16 compensate the landlord for various issues enumerated in Section 1950.5(b). Cal. Civ. Code
17
1950.5(e). Specifically, the landlord may use the security deposit to compensate for a tenants
18 defaults in the payment of rent; to repair damages to the premises exclusive of ordinary wear and
19 tear; to clean the premises upon the termination of the tenancy; and to remedy the tenants future
20 defaults. Id.
1950.5(b); see also Action Apartment Ass n v. Santa Monica Rent Control Bd., 94
21 Cal. App. 4th 587, 600 (2001) (listing circumstances in which [l]andlords may use a security
22
2
See Begakis Decl., Ex. C (jrintout from California Secretary of State records). The Court may
23 properly take judicial notice of this public filing.
24
Similarly, there can be no claim under Section 1950.5 on behalf of members of the putative
class. In particular, given that Plaintiff selected these Defendants because they are not
25
associated with any particular LLC apartment community, Defendants were not the landlords
for any other members of the putative class.
26
Even if they could be applied to a claim for violation of Section 1950.5, as described below in
27
more detail and as recognized by the Court in sustaining the demurrers to Plaintiffs original
complaint, Plaintiffs alter ego allegations in this case are patently insufficient to state a claim
28
against Defendants.
MEM. OF POINTS AND AUTHORITIES TN SUPPORT OF DEMURRERS TO FIRST AMENDED COMPLAINT
EXHIBIT 2
Page 214
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 68 of 124 Page ID
#:216
1 deposit). Here, Plaintiffs own allegations reveal that the amounts withheld from her security
2 deposit fall squarely within the terms of the statute, which permit the landlord to use the funds for
3 cleaning. (See FAC
29.) Thus, Plaintiff has not alleged that ASN Warner Center, LLC acted in
4 any improper manner or that it did not use the funds for the stated and entirely legal purpose
5 of cleaning the apartment. Under the circumstances, Plaintiffs claim for violations of Section
6 1950.5 cannot be sustained.
7 V. PLAINTIFF CANNOT STATE A CLAIM FOR UNJUST ENRICHMENT
8 Plaintiffs purported Second Cause of Action for Unjust Enrichment fails for the simple
9 reason that it is not a legally cognizable cause of action. Unjust enrichment describes a remedy,
10 not a cause of action. See Meichior v. New Line Prods., Inc., 106 Cal. App. 4th 779, 793 (2003)
11 ([T]here is no cause of action in California for unjust enrichment.). In any event, there are no
12 factual allegations showing how any of these Defendants was unjustly enriched by a security
13 deposit paid by Plaintiff to her landlord, ASN Warner Center, LLC. As a result, and because
14 Plaintiff pleads no other valid cause of action against Defendants, the Court should dismiss
15 Plaintiffs purported Second Cause of Action for Unjust Enrichment.
16 VI. PLAINTIFF CANNOT STATE A CLAIM FOR VIOLATIONS OF THE UCL
17 Plaintiffs purported Third Cause of Action does not state a cognizable claim under the
18 UCL. As a threshold matter, Plaintiffs UCL claim sounds in fraud and must therefore satisfy the
19 heightened pleading standard. See Khoury, 14 Cal. App. 4th at 619 (A plaintiff alleging unfair
20 business practices under [Section 17200] must state with reasonable particularity the facts
21 supporting the statutory elements of the violation.).
22 Here, Plaintiff does not allege that any of these five Defendants made any statements,
23 representations, or promises of any kind, let alone allege the particular facts required to plead the
24 who, what, when, where and how necessary to assert claims sounding in fraud. See Lazar v.
25 Super. Ct. (Rykoff-Sexton, Inc.), 12 Cal. 4th 631, 645 (1996). Indeed, a plaintiffs burden in
26 asserting a fraud claim against a corporation is even greater. The requirement of specificity in a
27 fraud action against a corporation requires the plaintiff to allege the names of the persons who
28 made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what
6
MEM. OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS TO FIRST AMENDED COMPLAINT
EXHIBIT 2
Page 215
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 69 of 124 Page ID
#:217
1 they said or wrote, and when it was said or written. Tarmann v. State Farm Mut. Auto. Ins. Co.,
2 2 Cal. App. 4th 153, 157 (1991).
3 The only statements or representations identified with any semblance of particularity in
4 the FAC are set forth in the Lease attached to the FAC as Exhibit A. (See FAC 26 & Ex. A.)
5 However, as noted above, the only parties to that Lease are Plaintiff and an entity called ASN
6 Warner Center LLC not any of the five Defendants named in the FAC. (See FAC, Ex. A at 1,)
7 Plaintiff fails to identify a single misrepresentation made by ASN Warner Center, LLC,
8 much less any of the five Defendants, that could possibly support a claim of fraud. 5The only
9 additional allegations added since the Court last found Plaintiffs allegations insufficient to
10 support a fraud claim are statements made by unidentified tenants (none of which can be
11 attributed ASN Warner Center, LLC or Defendants). (See FAC
1950.5.) Just as
9
MEM. OF POfNTS AND AUTHORITIES TN SUPPORT OF DEMURRERS TO FIRST AMENDED COMPLAINT
EXHIBIT 2
Page 218
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 72 of 124 Page ID
#:220
1 in Shvarts, the written agreement does not evince any intent to deceive Plaintiff, and no UCL
2 claim may lie as a result.
3 C. Plaintiff Cannot Allege Unlawful Conduct Under the UCL
4 Pursuant to the UCL, an unlawful business practice or act is anything that can properly
5 be called a business practice and that at the same time is forbidden by law. People v. McKale,
6 25 Cal. 3d 626, 634 (1979). The UCL thus borrows violations from other laws and treats them
7 as unlawful practices that are independently actionable under the UCL. Farmers Ins. Exch. v.
8 Super. Ct. (The People), 2 Cal. 4th 377, 383 (1992). Plaintiffs must, however, specifically allege
9 what underlying law was violated. Khoury, 14 Cal. App. 4th at 619 (dismissal proper because
10 complaint identifies no particular section of the statutory scheme which was violated and fails to
11 describe with any reasonable particularity the facts supporting violation). Courts routinely
12 dismiss UCL claims where the party has failed to establish a predicate violation of the underlying
13 law. See, e.g., Indep. Cellular Tel., Inc. v. Daniels & Assocs., 863 F. Supp. 1109, 1118 (N.D. Cal.
14 1994) (UCL claim dismissed based on courts finding that defendants were not subject to the
15 licensing requirement that was the gravamen of the complaint); Crawford v. Farmers Group, Inc.,
16 160 Cal. App. 3d 1164, 1168, 1171(1984) (no UCLcause of action where conduct did not fall
17 within the statutes definition of a retail installment sale).
18 Plaintiffs claim under the unlawful prong relies wholly upon alleged violations of Section
19 1950.5. Because, as set forth above, Plaintiff fails to establish the elements of a Section 1950.5
20 claim, her claim under the unlawful prong of the UCL must also fail.
21 D. Plaintiff Cannot Allege Fraudulent Conduct Under the UCL
22 Plaintiff has not alleged, and cannot allege any representations that were likely to deceive
23 the public. Plaintiff must plead facts, which taken as true, establish that the public are likely to
24 be deceived by the representations regarding security deposits. See Korea Supply, 29 Cal. 4th at
25 1151. This Court can determine whether the public is likely to be deceived by those
26 representations as a matter of law. See Shvarts, 81 Cal. App. 4th at 1158.
27 The decision in Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496 (2003), is
28 instructive. Lavie involved a UCL claim brought by a consumer who developed an ulcer
10
MEM. OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS TO FIRST AMENDED COMPLAINT
EXHIBIT 2
Page 219
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 73 of 124 Page ID
#:221
1 allegedly in connection with his ingestion of an over-the-counter pain product. Id. at 500-01.
2 The consumer brought a class action against the companies that developed, manufactured, and
3 marketed the product, claiming that the defendants marketing campaign for the pain product was
4 misleading. Id In finding that a reasonable consumer would not be deceived, the court held:
5 [T]he standard to be applied in assessing whether the conduct or
advertisement violates the UCL is whether it is likely to deceive
6
the consumer. Likely to deceive implies more than a mere
7
possibility that the advertisement might conceivably be
misunderstood by some few consumers viewing it in an
8
unreasonable manner. Rather, the phrase indicates that the ad is
such that it is probable that a significant portion of the general
9
consuming public or of targeted consumers, acting reasonably in
the circumstances could be misled.
10
ii
Id. at 508 (internal citations omitted).
12
The FAC here is devoid of any facts establishing why a reasonable consumer would be
13
misled by any representations in this case (indeed, as set forth above, she utterly fails to allege the
14
requisite who, what, when, where and how about any representations at all). Plaintiff simply
15
alleges in the vaguest terms that tenants were somehow misled into believing that they would not
16
be charged for painting and cleaning. (FAC
8 15); the apartment communities (none of which is a Defendant) fly under the same
9 ARCHSTONE banner and logo, (FAC
14.) Putting aside the fact that Plaintiff makes this allegation despite having been presented
14 with ample evidence to the contrary (see Defs. Mot. for Sanctions), there is no authority
15 supporting the imposition of liability on an entity that Plaintiff does not allege had any direct
16 involvement in the day-to-day management of a property based on a management theory.
17 Plaintiffs theory of agency liability is similarly flawed. Plaintiff bears a heavy burden
18 if she intends to establish that Defendants are agents of each other and/or that ASN Warner
19 Center, LLC is an agent of one or more of the Defendants. Corporate entities are presumed to
20 have separate existences, and the corporate form will be disregarded only when the ends ofjustice
21 require this result. Lairdv. Capital Cities/ABC, Inc., 68 Cal. App. 4th 727, 737 (1998). In order
22 to do so, she must show more than mere representation that is, she must show that Defendants
23 exercise excessive control over ASN Warner Canter, LLC (and/or each other) such that the
24 alleged agents are mere instrumentalities of the principal(s). Id. at 741. See also Sonora
25 Diamond Corp., 83 Cal. App. 4th at 542 (noting that corporate entities are often financially
26 related and share characteristics such as interlocking directors, but that such facts do not justify a
27 finding of agency) (citing Rollins Burdick Hunter ofS. Cal., Inc. v. Alexander & Alexander
28
14
MEM. OF POTNTS AND AUTHORITIES IN SUPPORT OF DEMURRERS TO FIRST AMENDED COMPLAINT
EXHIBIT 2
Page 223
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 77 of 124 Page ID
#:225
1 Servs., Inc., 206 Cal. App. 3d 1, 9 (1988)). Here, Plaintiffs agency allegation is nothing more
2 than a conclusory, boiler-plate recitation of the concept of agency:
3
Plaintiff is informed and believes, and based thereon alleges, that at
all times herein mentioned, [the named Defendants] and [the named
4
Defendants] California apartment complexes, are the agents,
partners, successors, or employees of each other, and, in doing the
5
things complained of herein, are acting within the course and scope
6
of such agency, partnership, succession, or employment.
7
(FAC
16.) Plaintiffs boilerplate agency allegations are insufficient to state a claim against
8
Defendants that have no relationship to her claims.
9
VIII. CONCLUSION
10 For the foregoing reasons, Defendants respectfully request that the Court sustain their
11
Demurrers, without leave to amend.
12
DATED: September 28, 2012 PAUL HASTINGS LLP
14
By:_____________
HOWARD M. PRIVETTE
15
Attorneys for Defendants ARCHSTONE
16
COMMUNITIES, LLC; ARCHSTONE BUILDERS
INCORPORATED, ARCHSTONE PROPERTY
17
MANAGEMENT (CALIFORNIA) INCORPORATED;
SMITH FOUR, INC. dlb/a/ Archstone-Smith Four, Inc.;
18
and SMITH TWO, iNC. d/b/a Archstone-Smith Two, Inc.
19
20
21
LEGAL U5_W # 72827319.4
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MEM. OF POINTS AND AUTHORITIES TN SUPPORT OF DEMURRERS TO FIRST AMENDED COMPLAINT
EXHIBIT 2
Page 224
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 78 of 124 Page ID
#:226
1
PROOF OF SERVICE
2 STATE OF CALIFORNIA
)
)
ss:
3 CITY OF LOS ANGELES AND COUNTY OF
)
LOS ANGELES
)
4
5 I am employed in the City of Los Angeles and County of Los Angeles, State
of California. I am over the age of 18, and not a party to the within action. My business
6 address is 515 South Flower Street, Twenty-Fifth Floor, Los Angeles, California 90071-
2228.
7
On September 28, 2012, I served the foregoing document(s) described as:
8
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
9 DEFENDANTS DEMIJRRERS TO THE FIRST AMENDED COMPLAINT
10
on the interested parties as follows:
11 R. Rex Parris, Esq. (rrparris@rrexparris.com)
Alexander R. Wheeler, Esq.
(awheeler@rrexparris.com)
12
Kitty Szeto, Esq.
(kszeto@rrexparris.com)
13
R. Rex Parris Law Firm
43364 10th Street West
14
Lancaster, California 93534
Phone: (661) 949-2595
15 Fax: (661) 949-7524
16
VIA LEXIS NEXIS FILE & SERVE:
17
By posting directly on the LexisNexis File and Serve website at
http://fileandserve.lexisnexis.com.
18
19
I declare under penalty of perjury under the laws of the State of California
20
that the above is true and correct.
21
Executed on September 28, 2012, at Los Angeles, California.
OIaggie Icart
24
/
25
26
27
28
PROOF OF SERVICE
EXHIBIT 2
Page 225
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 79 of 124 Page ID
#:227
PAUL HASTINGS LLP
HOWARD M. PRIVETTE (SB# 137216)
NICHOLAS J. BEGAKIS (SB# 253588)
BETH MUELLER (SB# 278283)
515 South Flower Street
Twenty-Fiflh Floor
Los Angeles, CA 90071-2228
Telephone: (213) 683-6000
Facsimile: (213) 627-0705
Attorneys for Defendants
ARCHSTONE COMMUNITIES, LLC; ARCHSTONE
BUILDERS INCORPORATED; ARCHSTONE
PROPERTY MANAGEMENT (CALIFORNIA) INC.;
SMITH TWO, INC.; and SMITH FOUR, INC.
SEP
282012
LOS
ANGELES
St)PEPJOR
COtj
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
JENNIFER VAGLE, on behalf of herself
and all others similarly situated,
Plaintiff,
ARCHSTONE COMMUNITIES, LLC, a
Delaware limited liability corporation;
ARCHSTONE BUILDERS
INCORPORATED, a Delaware
corporation; ARCHSTONE PROPERTY
MANAGEMENT (CALIFORNIA)
INCORPORATED, a Delaware
corporation, SMITH FOUR, INC. d/b/a
Archstone-Smith Four, Inc., a Delaware
corporation; SMITH TWO, INC., d!b/a
Archstone-Smith Two, Inc., a Delaware
corporation, and DOES 1 through 100,
inclusive,
Defendants.
CASE NO. BC48093 1
DEFENDANTS REQUEST FOR
JUDICIAL NOTICE IN SUPPORT OF
DEMURRERS TO FIRST AMENDED
COMPLAINT
[Notice of Hearing on Demurrers and
Demurrers, Memorandum of Points and
Authorities, and Declaration of Nicholas J.
Begakis and Exhibits A-C]
November 20, 2012
9:00 a.m.
307
Hon. William F. Highberger
27
28
LEGAL U5_W # 72893621.1
copy
ORI
C
i
FILED
1
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vs.
Date:
Time:
Dept:
Judge:
DEFENDANTS REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRERS
EXHIBIT 2
Page 226
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 80 of 124 Page ID
#:228
28
PAUL HASTINGS LLP
HOWARD M. PRIVETTE (SB# 137216)
NICHOLAS J. BEGAKIS (SB# 253588)
BETH MUELLER (SB# 27g283)
515 South Flower Street
Twenty-Fifth Floor
Los Angeles, CA 90071-2228
Telephone: (213) 683-6000
Facsimile: (213) 627-0705
Attorneys for Defendants
ARCHSTONE COMMUNITIES, LLC; ARCHSTONE
BUILDERS iNCORPORATED; ARCHSTONE
PROPERTY MANAGEMENT (CALIFORNIA) INC.;
SMITH TWO, iNC.; and SMITH FOUR, INC.
JENNiFER VAGLE, on behalf of herself
and all others similarly situated,
Plaintiff,
ARCHSTONE COMMUNITIES, LLC, a
Delaware limited liability corporation;
ARCHSTONE BUILDERS
INCORPORATED, a Delaware
corporation; ARCHSTONE PROPERTY
MANAGEMENT (CALIFORNIA)
INCORPORATED, a Delaware
corporation, SMITH FOUR, INC. d/b/a
Archstone-Smith Four, Inc., a Delaware
corporation; SMITH TWO, INC., d/b/a
Archstone-Smith Two, Inc., a Delaware
corporation, and DOES 1 through 100,
inclusive,
LEGALJJS_W1 72893621.1
Defendants.
CASE NO. BC48093 I
DEFENDANTS REQUEST FOR
JUDICIAL NOTICE IN SUPPORT OF
DEMURRERS TO FIRST AMENDED
COMPLAINT
INotice of Hearing on Demurrers and
Demurrers, Memorandum of Points and
Authorities, and Declaration of Nicholas J.
Begakis and Exhibits A-C]
Sep 28
04:O2PM
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
I
2
3
4
5
6
7
8
9
10
11
12
13
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15
16
17
18
19
20
21
22
23
24
25
26
27
vs.
Date:
Time:
Dept:
Judge:
November 20, 2012
9:00 a.m.
307
Hon. William F. Highberger
DEFENDANTS REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRERS
EXHIBIT 2
Page 227
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 81 of 124 Page ID
#:229
1 Pursuant to California Evidence Code Section 452(c), (d) and (g), and California Rule of
2 Court 3.1306(c), Defendants Archstone Communities, LLC, Archstone Builders Incorporated,
3 Archstone Property Management (California) Incorporated, Smith Four, Inc., and Smith Two Inc.
4 (collectively, Defendants), hereby respectfully request that the Court take judicial notice of the
5 following in connection with Defendants Demurrers:
6 Exhibit A Plaintiffs Opposition to Defendants Motion for Sanctions attached as Exhibit 1 to
7 the Declaration of Nicholas J. Begakis filed concurrently herewith.
8 Exhibit B The Reporters Transcript of Proceedings of the hearing on Defendants Demurrers
9 and Motion to Strike which took place on August 8, 2012 attached as Exhibit 2 to
10 the Declaration of Nicholas J. Begakis filed concurrently herewith.
11 Exhibit C A printout that retrieved from the California Secretary of State Business Portal
12 website (http://kepler.sos.ca.gov) on September 28, 2012, listing ASN
13 Warner Center, LLC as an active limited liability company doing
14 business in the State of California.
15 This Request for Judicial Notice is made on the grounds that this Court, in considering a
16 demurrer, may take judicial notice of court records. Cal. Evid. Code
452 (c), (g); see also El Escorial Owners Assn. v. DLC Plastering, Inc., 154
21 Cal. App. 4th 1337, 1350 (2007) (taking judicial notice of the Franchise Tax Boards
22 determination that a corporation was in good standing.)
23
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LEGAL_US_W # 72893621.1
DEFENDANTS REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRERS
EXHIBIT 2
Page 228
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 82 of 124 Page ID
#:230
1 Defendants have provided Plaintiffs with sufficient notice of this Request for Judicial
2 Notice pursuant to Section 453(a) of the California Evidence Code. Based on the foregoing,
3 Defendants respectfully request that the Court take judicial notice of the matters referenced
4 above.
5
DATED: September 28, 2012 PAUL HAST LLP
By:__________
8
NICHOLAS J. BEGAKIS
Attorneys for Defendants
9
ARCHSTONE COMMUNITIES, LLC; ARCHSTONE
BUILDERS INCORPORATED; ARCHSTONE
10
PROPERTY MANAGEMENT (CALIFORNIA) iNC.;
1 1
SMITH TWO, INC.; and SMITH FOUR, INC.
12
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LEGAL_U5W# 72893621.1
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DEFENDANTS REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRERS
EXHIBIT 2
Page 229
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 83 of 124 Page ID
#:231
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA
)
)
ss:
3 CITY OF LOS ANGELES AND COUNTY OF
)
LOS ANGELES
)
4
5 I am employed in the City of Los Angeles and County of Los Angeles, State
of California. I am over the age of 18, and not a party to the within action. My business
6
address is 515 South Flower Street, Twenty-Fifth Floor, Los Angeles, California 90071..
2228.
7
On September 28, 2012, I served the foregoing document(s) described as:
8
DEFENDANTS REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF
9 DEMURRERS TO FIRST AMENDED COMPLAINT
10 on the interested parties as follows:
11 R. Rex Parris, Esq. (rrparrisrrexparris.com)
Alexander R. Wheeler, Esq.
(awheeler@rrexparris.com)
12
Kitty Szeto, Esq.
(kszeto@rrexparris.com)
13
R. Rex Parris Law Firm
433 64 10th Street West
14
Lancaster, California 93534
Phone: (661) 949-2595
15
Fax: (661) 949-7524
16
VIA LEXIS NEXIS FILE & SERVE:
17
By posting directly on the LexisNexis File and Serve website at
http://fileandserveiexisnexis.com.
18
19
I declare under penalty of perjury under the laws of the State of California
20
that the above is true and correct.
21
Executed on September 28, 2012, at Los Angeles, California.
22
23
,yIaggie Icart
24
25
26
27
28
PROOF OF SERVICE
EXHIBIT 2
Page 230
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 84 of 124 Page ID
#:232
14
15
16
PAUL HASTfNGS LLP
HOWARD M. PRIVETTE (SB# 137216)
NICHOLAS J. BEGAKIS (SB# 253588)
BETH MUELLER (SB# 278283)
515 South Flower Street
Twenty-Fifth Floor
Los Angeles, CA 9007 1-2228
Telephone: (213) 683-6000
Facsimile: (213) 627-0705
Attorneys for Defendants
ARCHSTONE BUILDERS INCORPORATED;
ARCHSTONE PROPERTY MANAGEMENT
(CALIFORNIA) INCORPORATED; SMITH FOUR,
INC.; and SMITH TWO, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
CASE NO. BC480931
DECLARATION OF NICHOLAS J.
BEGAKIS IN SUPPORT OF
DEFENDANTS REQUEST FOR
JUDICIAL NOTICE IN SUPPORT OF
DEMURRERS
[Notice of Hearing on Demurrers and
Demurrers, Memorandum of Points and
Authorities, and Request for Judicial Notice
filed separately]
November 20, 2012
9:00 a.m.
Dept:
Judge: Hon. William F. Highberger
JENNIFER VAGLE, on behalf of herself
and all others similarly situated,
Plaintiff,
ARCHSTONE BUILDERS
INCORPORATED, a Delaware
corporation, ARCHSTONE PROPERTY
MANAGEMENT (CALIFORNIA)
INCORPORATED, a Delaware
corporation, SMITH FOUR, INC. dlb/a
Archstone-Smith Four, Inc., a Delaware
corporation, SMITH TWO, INC. d!b/a
Archstone-Smith Two Inc., a Delaware
corporation, and Does 1 through 100,
inclusive,
Defendants.
27
28
LEGAL_USW# 72893305.1
copy
RILE
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Sp 212012
8PEi&
COURT
) 1
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vs.
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Date:
Time:
307
DECLARATION OF NICHOLAS J. BEGAKIS ISO REQUEST FOR JUDICIAL NOTICE
EXHIBIT 2
Page 231
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 85 of 124 Page ID
#:233
PAUL HASTINGS LLP
HOWARD M. PRIVETTE (SB# 137216)
NICHOLAS J, BEGAKIS (SB# 253588)
BETH MUELLER (SB# 278283)
515 South Flower Street
Twenty-Fifth Floor
Los Angeles, CA 90071-2228
Telephone: (213) 683-6000
Facsimile: (213) 627-0705
Attorneys for Defendants
ARCHSTONE BUILDERS INCORPORATED;
ARCHSTONE PROPERTY MANAGEMENT
(CALIFORNIA) INCORPORATED; SMITH FOUR,
INC.; and SMITH TWO, rNC.
JENNIFER VAGLE, on behalf of herself
and all others similarly situated,
Plaintiff,
ARCHSTONE BUILDERS
INCORPORATED, a Delaware
corporation, ARCHSTONE PROPERTY
MANAGEMENT (CALIFORNIA)
INCORPORATED, a Delaware
corporation, SMITH FOUR, INC. d/b/a
Archstone-Smith Four, Inc., a Delaware
corporation, SMITH TWO, iNC. d/bla
Archstone-Smith Two Inc., a Delaware
corporation, and Does 1 through 100,
inclusive,
CASE NO. BC48093 1
DECLARATION OF NICHOLAS J.
BEGAKIS IN SUPPORT OF
DEFENDANTS REQUEST FOR
JUDICIAL NOTICE IN SUPPORT OF
DEMURRERS
November 20, 2012
9:00 a.m.
Dept:
Judge: Hon. William F. Highberger
28
LEGAL US W # 72893305.1
Sep 28 201
04:O2PM
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
I
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vs.
Date:
Time:
307
Defendants.
REPLY DECLARATION OF NICHOLAS J. BEGAKIS ISO REQUEST FOR JUDICIAL NOTICE
EXHIBIT 2
Page 232
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 86 of 124 Page ID
#:234
DECLARATION OF NICHOLAS J. BEGAKIS
1
_____________________________________________________________________________________
2 I, Nicholas J. Begakis, hereby declare, and state as follows:
3 1. I am an associate at the law firm of Paul Hastings LLP, counsel of record
4 for Defendants Archstone Builders Incorporated, Archstone Property Management (California)
5 Incorporated, Smith Four, Inc., and Smith Two, Inc. (collectively, Defendants) in the above
6 entitled matter. I am an attorney licensed to practice in the State of California. I have personal
7 knowledge of the facts set forth below and if called as a witness, I would and could competently
8 testify thereto.
9 2. Attached hereto as Exhibit A is a true and correct copy of Plaintiff Jennifer
10 Vagle s Opposition to Defendants Motion for Sanctions filed on September 13, 2012.
11 3. Attached hereto as Exhibit B is a true and correct copy of the Reporters
12 Transcript of Proceedings of the hearing on Defendants Demurrers and Motion to Strike which
13 took place on August 8, 2012.
14 4. Attached hereto as Exhibit C is a true and correct copy of a printout that
15 retrieved from the California Secretary of State Business Portal website (htttp://kepler.sos.ca.gov)
16 on September 28, 2012, listing ASN Warner Center, LLC as an active limited liability company
17 doing business in the State of California.
18 I declare under penalty of perjury under the laws of the State of California that the
19 foregoing is true and correct.
20 Executed this 28th day of September, 2012, at Los Angeles, California.
21
22
23
24
25
26
27
28
LEGAL_U5_W # 72893305.1
-2-
Nicholas J. Begakis
DECLARATION OF NTCHOLAS J. BEGAKIS IN SUPPORT OF REQUEST FOR JUDICIAL NOTICE
EXHIBIT 2
Page 233
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#:235
Exhibit A
EXHIBIT 2
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#:236
1 R. Rex Panis, Esq. (SBN 96567)
Alexander R. Wheeler, Esq. (SBN 239541)
Sep 132 12
2 Kitty Szeto, Esq. (SBN 258136)
John M. Bickford, Esq. (SBN 280929)
3 R. REx PAruus LAWFIRM
43364 10th Street West
4 Lancaster, California 93534
Telephone: (661) 949-2595
5 Facsimile: (661) 949-7524
6
Attorneys for Plaintiff and the Putative Class
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF LOS ANGELES - CIVIL WEST COURTHOUSE
10
11 JENNIFER VAGLE, on behalf of herself and all) Case No.: BC480931
others similarly situated;
)
12
)
CLASs ACTION
Plaintiff
)
13
)
PLAINTIFF JENNIFER VAGLEs
v.
)
OPPOSITION TO DEFENDANTS MOTION
14
)
FOR SANCTIoNs UNDER C.C.P. 128.7
ARCHSTONE COMMUNITIES LLC, a
)
15 Delaware limited liability corporation,
)
Date: September 26, 2012
ARCHSTONE BUILDERS INCORPORATED,)
Time: 9:00 a.m.
16 a Delaware corporation, ARCHSTONE )
Dept.: 307
PROPERTY MANAGEMENT )
17
(CALIFORNIA) INCORPORATED, a
) [Assigned for All Purposes to the
Delaware corporation, SMITH FOUR, iNC.
)
Honorable William F. Highberger,
18
d!b/a Archstone-Smitb Four, Inc., a Delaware
)
Department 307]
corporation, SMITH TWO, INC. dlb/a
)
19
Archstone-Smith Two, Inc. a Delaware
)
Complaint Filed: March 14, 2012
) Jury Tnal Date: None Set
20
corporation, and DOES 1 through 100,
inclusive;
)
21
Defendants.
3
22
)
23
24
25
26
27
28
PLAumFFs OPPosmoN TO DEINDTs 128.7 MoTIoN
EXHIBIT 2
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#:237
1 TABLE OF CONTENTS
PAGE
2
3
INTRODUCTION
1
FACTUAL AI\W) PROCEDURALHISTORY
1
A. Plaintiffs Expeence with chstone
1
B. Plaintiffs Complaint
2
8
C. The Initial Status Conference
3
9
D. Archstones Contention Discovery
3
10
E. Plaintiffs PMKNotices
4
12
F. Archstone Serves Plaintiff With Its 128.7 Motion
5
13
G. Archstones Pleading Challenges
5
14
15
H. Plaintiff Responds to Archstones Contention Discovery
6
16
I. Plaintiffs First Amended Complaint
6
17
Sanctions Motion Still Filed
7
18
19
ARvIENT
7
20 I. STANDARDUNDERSECTION 128.7
7
21
II. PLAu4Tjs FAC HAS RENDERED ARCHSTONES 128.7 MoTIoN
22 AGAllsT PLAINTrFFs ORIGINAL C0MPLAmrF MOOT
8
23
24
25
26
27
28
PLAINTiFFs OPPOSITION TO DEFENDANTS 128,7 MOTION
EXHIBIT 2
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#:238
1 TABLE OF CoNTENTs
2
PAGE
3
ifi. PLAmTwFs FAC DOES NOT VIoLATE SEcTIoN 128.7
9
A. Alter-Ego Liability
10
.5
6
B. Alternative Theories of Liability
12
7
1. Management Theoiy ofLiability
12
8
2. Agency Theoiy ofLiability
13
9
C. Plaintiffs Does Not Have to Accept as True Archstones
10
Unsupported and Self-Serving Declaration
14
11
IV. ALTERNATWELY, ARCHSTONE S REQUEST FOR $80,000 IN
12
ATTORNEYs FEEs IS UNSUPPORTED AND GROSSLY ExcESSivE
15
13
CONCLUSION
15
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
PLAINTwEs OPPOSITION TO DEFENDANTs 128.7 MOTION
EXHIBIT 2
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#:239
1 TABLE OF AUTHORITIEs
PAGE)
2
CALiForNTA CASES
3
Associated Vendors, Inc. v. Oakland Meat Co.
4
(1962)2lOCal.App.2d825
11,12
6
Banks v. Hathaway, Perrett, Webster Flowers & Chrisman
(2002) 97 Cal.App.4th 949
9
Boclcrath v. Aldrich Chemical Co., Inc.
8
9
(1999)2lCal.4th71
8,10
10
Doe v. City of Los Angeles
(2007) 42 Cal.4th 531
11
Las Palmas Associates v. Las Palmas Center Associates
12
13
(1991)235Ca1.App.3d1220
10
Levy v. Slum
14
15
(2001) 92 Cal.App.4th 625
8
Malovec v. Hamrell
16
17
(1999) 70 Cal.App.4th434
9
18
Roman Catholic Archbishop v. Superior Court
19
(1971) l5Cal.App.3d405
11
Stark v. Cocker
20
(1942)20 Cal.2d 839
10
21
Tomaselli v. Transamerica Ins. Co.
22
23
(1994)25 Cal.App.4th 1269
11
Zoran Corp. v. Chen
24
25
(2010) 185 Cal.App.4th799
10
26
27
28
111
PLAINTIFFs OPPOSITION TO DEFEANTs 128.7 MOTION
EXHIBIT 2
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#:240
1
TABLE OF AuTH0RmEs
2
PAG
FEDERAL CASES
3.
Buster v. Greisen
4
(9thCir. 1997) 104F.3d 1186
8
6
Calloway v. Marvel Entertainment Group
(2dCir.1988)854F.2d1452
8
Christian v. Mattel Inc.
8
(9thCir.2002)286F.3d1118
8
io
STATUTES
Civ. Proc.,
500
8
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
iv
PLAINTIFFS OPPOsITIoN TO DEFENL rrs 128.7 MoTION
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1
SUMMARY OF OPPOSITION
2 Archstones 1litigation strategy is simple: (1) claim that Plaintiff Jenifer Vagle (Plaintiff)
3 named the wrong Defendants; (2) refuse to tell Plaintiff who the right defendant(s) is/are; (3) refuse to
4 allow Plaintiff to conduct discovery on whether Defendants are indeed improper, yet simultaneously
5 propound discovery on P1aintiff and (5) threaten Plaintiff with $80,000 in sanctions if she refuses to go
6 along with this plan. This is who Plaintiff is dealing with.
7 Archstone purports to bring its now moot 128.7 motion on the grounds that Plaintiffs counsel
8 fail[ed] to conduct a reasonable inquiry before naming Defendants in this action and fail[ed] to
9 consider evidence that Defendants are not appropriate parties to this action. (Notice at
p.
1:1113.)
10 Specifically, Archstone alleges that Plaintiffs contentions that Defendants may somehow be liable as
11 alter egos of her landlord are completely baseless. (Mot. at 7:2122.) Of course, this isnt true.
12 Plaintiffs FAC alleges numerous evidentiaiyfacts that support her allegatiofi that Archstones
13 California apartment complexes are the alter-egos of the named Defendants. (See e.g., FAC,
J
1724.)
14 Plaintiffs unprecedented factual detail makes Archstones claim that her contention is baseless
15 laughable. But, in any event, even if Plaintiff does not have a sufficient basis to allege alter-ego (which
16 she does), Plaintiff pleads two additional theories of liability (management and agency) that render the
17 named Defendants liable for the acts alleged in Plaintiffs FAC. Simply because Plaintiff cannotprove
18 her claims at the pleading stage is not valid grounds for 128.7 sanctions. For these reasons, Archstones
19 128.7 motion should be denied.
20
21 FACTUAL AND PROCEDURAL ifiSTORY
22 A. Plaintiffs Experience with Archstone
23 From August 16, 2009 to August 15, 2010, Plaintiff leased an apartment from Archstone Warner
24 Center (a.k.a. ASN Warner Center LLC), one of Archstones approximately 70 apartment complexes in
25 California. (FAC,
26(d)).
4 Although Plaintiff fully complied with this requirement (id.
29).
6 After she was charged, Plaintiff spoke with other ex-Archstone tenants who leased apartments
7. from some of Archstones other California apartment complexes.. (FAC,
31.)
14
15 B. Plaintiffs Complaint
16 Based on these facts, Plaintiff filed this putative class action on March 17th, alleging that
17 Archstone s California apartment complexes have a systematic policy and procedure of always charging
18 their tenants for cleaning and painting at the end of every tenancy, regardless of the actual condition of
19 the apartment unit. (See Compl.,
6.) This allegation is based on the fact that these Archstone entities are the only Archstone
23 entities in California that do not appear to be an Arcbstone California apartment complex, and therefore
24 are the only entities that could be responsible for the statewide policy.
25 Based on this general allegation, Plaintiffs Complaint named six causes of action: (1) Violations
26 of Civil Code section 1950.5; (2) Breach of Contract; (3) Unjust Enrichment; (4) FraudIntentional
27 Misrepresentation; (5) FraudConcealment; and (6) Violations of Business and Professions Code
28 sections 17200 et seq. (See Comp1., 2356.)
2
PLAINTIFFs OPPosmoN TO DEFENDANTs 128.7 MonoN
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1 C. The Initial Status Conference
2 On June 6th, the Court issued an Initial Status Conference Order, which ordered the parties to
3 prepare a Joint Initial Status Conference Report. In that report, Archstone took the position that
4 Plaintiff has no relationship with any of the Defendants because [n]one of the Defendants named in
5 the Complaint was the Plaintiffs landlord and Plaintiff never entered into an agreement with any of
6 the Defendants. (Bickford Deci., Ex. C at
p.
5:612.) Plaintiff noted that liability was based on the
7 fact that Defendants own, maintain, manage, and control numerous apartment buildings throughout the
8 State of California through its LLC[] [apartment complexes]. (Id., Ex. C at
p.
3:1719.) Plaintiff
9 specifically stated that proof of this control may be discovered by way of deposition testimony from
10 Defendants Person(s) Most Knowledgeable regarding their organizational structures and relationship
11 with its LLCs. (Id., Ex. C atp. 3:2123.)
12 At the June 26th Initial Status Conference, the parties reiterated their respective positions, and
13 the Court granted Plaintiff leave to conduct discovery to determine whether the named Defendants were
14 the proper parties to the lawsuit. (See Begakis Decl., Ex. A.) In a letter to Plaintiffs counsel,
15 Archstones counsel confirmed the parties understanding that discovery was lifted solely for Plaintiff to
16 establish that the named Defendants are proper parties:
17 As you know, at the Initial Status Conference held on June 26, 2012, the Court was
reluctant to allow any discovery prior to the hearing on Defendants demurrers and
18
motion to strike. Ultimately, however, the Court allowed Plaintiff to serve targeted
19
discovery to the extent deemed necessary for Plaintiff to prepare her opposition to
Defendants pleadings challenges.
20
21 (Id.,Ex.B.)
22
23 D. Archstones Contention Discovery
24 After the Initial Status Conference, Defendant Archstone Builders Incorporated served Plaintiff
25 with Form Interrogatories, Special Interrogatories, Requests for Admissions, and Requests for
26 Production. (Begakis Decl.,
12.) Archstone, on the other hand, has continued to challenge Plaintiffs PMK
20 notices.
21
22
I. Plaintiffs First Amended Complaint
23 On August 22nd, Plaintiff filed her First Amended Complaint (FAC). In addition to adding a
24 named Defendant (Archstone Communities LLC), Plaintiffs FAC contains three theories of liability
25 that render the named Defendants liable for the systematic policy and procedure of always charging for
26 cleaning and painting at the end of every tenancy, regardless of the actual condition of the apartment
27 unit. (FAC,
J
1416.)
28
6
PLAINTuFs OPPOSITION TO DEFEInTs 128.7 MoTIoN
EXHIBIT 2
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1 First, pursuant to the courts suggestion, Plaintiff alleges that the named Defendants, either
2 directly or through [their] corporate affiliates, [have] been engag[ing] in the business of owning,
3 developing, managing, maintaining, and leasing approximately 70 multi-unit apartment complexes
4 throughout the State of California, including but not limited to the premises formerly rented by
5 Plaintiff (FAC,
14.) Second, that there exists, and at all times herein mentioned there existed, a
6 unit of ownership between [the named Defendants] and the [named Defendants] California apartment
7 complexes such that any individuality or separateness between themhas ceased and each of them is the
8 alter ego of the others. (Id.,
15.) And third, that at all times herein mentioned, [the named
9 Defendants] and [the named Defendants] California apartment complexes, are the agents, partners,
10 successOrs, or employees of each other, and, in doing the things complained of herein, are acting within
11 the course and scope of such agency, partnership, succession, or employment. (Id.
,J
16.)
12 Although not necessary under Californias liberal pleading standard, Plaintiffs FAC provides
13 ample factual support for her three theories of liability. She also provides evidence supporting her claim
14 that Archstones California apartment complexes have a systematic policy and procedure of always
15 charging for apartment cleaning and painting at the end of every tenancy, regardless of the actual
16 condition of the apartment unit.
17 Finally, Plaintiffs FAC reduces the number of causes of action alleged from six to three: (1)
18 Violations of Civil Code section 1950.5; (2) Unjust Enrichment; and (3) Violations of Business and
19 Professions Code sections 17200 et seq. (See FAC
J
3953.)
20
21 J. Sanctions Motion Still Filed
22 Despite the fact that the Court sustained Archstone s demurrers to Plaintiffs complaint and
23 granted its motion to strike class allegations with leave to amend, and despite the fact that Plaintiff filed
24 an FAC that remedies any purported defects in her original complaint, Archstone filed its amended
25 128.7 motion on September 4th.
26 III!
27 /1/I
28 /1/I
7
PLAiNTIFFs OPPosITIoN TO DEFENDANrs 128.7 MonoN
EXHIBIT 2
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1 ARGUMENT
2 I. LEGAL STANDARD UNDER SECTION 128.7
3 Under Code of Civil Procedure section 128.7, the signature of an attorney on a pleading filed
4 with the court reflects his certification that the pleading is not being presented for an improper purpose;
5 the legal contentions are warranted by law; and the allegations and factual contentions have evidentiary
6 support or are likely to have such support after a reasonable opportunity to further investigate. (Levy v:
7 Slum (2001) 92 Cal.App.4th 625, 636.) Pursuant to section 128.7, sanctions may not be imposed unless
8 the court finds, after applying the standard of objective reasonableness, that counsel or a party violated
9 that provision. (Blockrath v. Aldrich Chemical Co., Inc. (1999) 21 CaI.4th 71, 82 (Blockrath).)
10 Where the factual contentions ofa complaint are the primary focus of a 128.7 motion, the court
11 must conduct a two-prong inquiry to determine (1) whether the complaint is legally or factually
12 baseless from an objective perspective, and (2) if the attorney has conducted a reasonable and
13 competent inquiry before signing and filing it. (Christian v. Mattel Inc. (9th Cir. 2002) 286 F.3d
14 1118, 1127, citing Buster v. Greisen (9th Cir. 1997) 104 F.3d 1186, 1190.) In determining whether to
15 impose sanctions, the court must resolve all doubts in favor of the pleadings signer. (Calloway v.
16 Marvel Entertainment Group (2d Cir. 1988) 854 F.2d 1452, 14691470, revd. on other grounds (1988)
17 854 F.2d 1452.) The court should presume that plaintiffs were aware of their duty to pursue their claims
18 in good faith, and, in the absence of contrary evidence, that they did so. (See Bockrath v. Aldrich
19 Chemical Co., Inc. (1999) 21 Cal.4th 71, 83 (Bockrath).) Thus, the party moving for sanctions under
20 section 128.7 bears the burden of proving that section 128.7 has been violated. (See ibid.; accord, Evid.
21 Code,
500.)
22
23 JI. PLAINTIFFS FAC HAS RENDERED ARCI{STONES 128.7 MoTIoN. AGAINST PLAINTIFFS
24 ORIGINAL COMPLAINT MooT.
25 The safe harbor provision of section 128.7, subdivision (c)(l) provides.
26 Notice of motion shall be served as provided in Section 1010, but shall not be filed with
or presented to the court unless, within 21 days after service of the motion, or any other
27
period as the court may prescribe, the challenged paper, claim, defense, contention,
28
allegation, or denial is not withdrawn or appropriately corrected.
8
PLAINTIFFs OpposmoNTO DEFEND.m-rs 128.7 MorioN
EXHIBIT 2
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1 (Civ. Proc.,
128.7, subd. (c)(1).) The purpose of the 30day safe harbor provision is to permit the
2 offending party to avoid sanctions by withdrawing the improper pleading during the safe harbor period.
3 [Citation.] This permits a party to withdraw a questionable pleading without penalty, thus saving the
4 court and the parties time and money litigating the pleading as well as the sanctions request. (Banks
5 v. Hathaway, Perrett, Webster Flowers & Chrisman (2002) 97 Cal.App.4th 949, 953, quoting Malovec
6 v. Hamrell (1999) 70 Cal.App.4th 434, 441.)
7 Here, Archstones 128.7 motion challenges Plaintiffs original complaint. But, as explained
8 above, the court sustained Archstone s demurrers to Plaintiffs complaint and granted its motion to
9 strike class allegations with leave to amend. Two weeks later, Plaintiff filed her FAC. Nevertheless,
10 Archstone still filed its 128.7 motion against Plaintiffs original complaint. This makes no sense. The
11 pleading that Archstone challenges (the original complaint) has been replaced by another pleading (the
12 FAC), and as explained below, the FAC has remedied any purported section 128.7 violation Archstone
13 accuses Plaintiffs counsel of committing. If Archstone wishes to file a 128.7 motion, it should be
14 directed at the operative pleading in this case (the FAC), not Plaintiffs original complaint.
15
16 ifi. PLAINTIFFS FAC DOES NOT VIOLATE SECTION 128.7
17 Archstone claims that Plaintiffs counsel should be sanctioned $80,000 for allegedly fail[ing] to
18 conduct a reasonable inquiry before naming Defendants in this action and failing to consider evidence
19 that Defendants are not appropriate parties to this action. (Notice at
p.
1:1113.)
Specifically,
20 Archstone alleges that Plaintiffs contentions that Defendants may somehow be liable as alter egos of
21 her landlord are completely baseless. (Mot. at 7:2122.) There are several problems with Archstones
22 claim.
23 First, and most importantly, contrary to Archstones claim, the operative pleading alleges
24 numerous facts that support Plaintiffs allegation that Archstones California apartment complexes are
25 the alter-egos of the named Defendants. (See e.g., FAC,
J
1724.) Thus, Archstones claim that
26 Plaintiff has no information supporting [her] alter ego claim is simply not true. (Mot. at
p.
9:17.)
27 Second, even if Plaintiff doesnt have a sufficient basis to allege alter-ego (which she does), Plaintiff
28 pleads two additional liability theories that render the named Defendants responsible for the allegations
9
Pipjwmps OPPosmoN TO DEFEmANTs 128.7 MOTION
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1 in Plaintiffs FAC. (See FAC,
J
14, 16.) Adopting the courts suggestion that real estate is often
2 managedby a party that is not the legal owner, Plaintiff has alleged that the named Defendants are the
3 de facto managers of Archstones California apartment complexes, and are therefore responsible for
4 their systematic policies and procedures, including the policy of automatically charging for cleaning and
5 painting at the end of every tenancy regardless of the actual condition of the apartment unit. (FAC,
6 15.) She has also alleged that Archstones California apartment complexes are the agents of the named
7 Defendants and that the policy of always charging is done with the consent, knowledge and ratification
8 of the named Defendants. (Id,
16.) Finally, Plaintiff is not obligated to b.lindlyaccept the allegations
9 in Archstones self-serving declaration, especially when the great weight of Plaintiffs investigations
10 suggest otherwise. For these reasons, the court should deny Archstones 128.7 motion.
11
12 A. Alter-Ego Liability
13 The sole basis for Archstones 128.7 motion is that Plaintiff allegedly has no information
14 supporting her alter-ego claim. (See Mot. at 9:17.) But, as her FAC makes very clear, Plaintiffs
15 investigation uncovered numerous facts that support her belie[f] that evidence has been or is likely to
16 be found raising a reasonable. . . probability that Archstones California apartment complexes are the
17 alter-egos of the named Defendants. (Bockrath, supra, 21 Cal.4th at
p.
82.)
18 Whether a party is liable under an alter-ego theory is normally a question of fact. (Zoran
19 Corp. v. Chen (2010) 185 Cal.App.4th 799,. 810 (Zoran), citing Las Palmas Associates v. Las Palmas
20 CenterAssociates (1991) 235 Cal.App.3d 1220, 1248.) After all, [t]he conditions under which the
21 corporate entity may be disregarded, or the corporation be regarded as the alter ego of the stockholders,
22 necessarily vary according to the circumstances in each case inasmuch as the doctrine is essentially an
23 equitable one and for that reason is particularly within the province of the trial court. (Ibid., italics
24 omitted, quoting Stark v. Cocker (1942) 20 Cal.2d 839, 846.) Thus, in order to allege alter-ego, a
25 plaintiff need only allege that (1) there is such a unity of interest that the separate personalities of the
26 corporations no longer exist; and (2) inequitable results will follow if the corporate separateness is
27 respected. (Ibid, quoting Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1285
28 (Tomaselli).)
10
PLAINTWF s OPPosITIoN TO DEFEiuANTs 128.7 MoTIoN
EXHIBIT 2
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1 Plaintiffs FAC alleges just this. She claims:
2 Plaintiff is informed and believes, and based thereon alleges, that there exists, and at all
times herein mentioned there existed, a unity of ownership between [the named
Defendants] and [the named Defendants] California apartment complexes such that any
4
individuality or separateness between them has ceased and each of them is the alter ego
of the others. [The named Defendants] and [the named Defendants] California
5 apartment complexes, share essentially identical ownership and officers, share the same
corporate headquarters, and utilize the services of the same employees. Adherence to the
6
fiction of the separate existence of [the named Defendants] and [the named Defendants]
7
California apartment complexes would, under the circumstances, sanction fraud andior
promote injustice.
8
9
(FAC,Jl5.)
10
Although not required, Plaintiff also provided evidentiary facts to support her alter-ego
11
allegation. (See Doe v. City ofLos Angeles (2007) 42 CaL4th 531, 550 [a complaint is sufficient if it
12
alleges ultimate rather than evidentiary facts].) She alleges:
13 The named Defendants and Archstones California apartment complexes share the same
14
principle place of business. (See FAC,
J
610, 17; see also Roman Catholic Archbishop v.
15
Superior Court (1971) 15 CaLApp.3d 405, 411(Roman) [use of the same offices a factor].)
16 The named Defendants and Archstones California apartment complexes share the same officers
17
and directors. (See FAC,
19.)
22 The named Defendants and Archstone s California apartment complexes holds itself out as a
23
unitary entity. (See FAC,
J
2 122; see also Associated Vendors, Inc. v. Oakland Meat Co.
24
(1962) 210 Cal.App.2d 825, 838 (Associated Vendors) [holding out as a unitary entity a factor]
25 The named Defendants and Archstone s California apartment complexes utilize the same
26
employees. (See FAC,
18.)
26 The named Defendants and Archstones California apartment complexes share the same officers.
27 (Seeii,Jl9.)
28
12
PLMNTIFFs OPPosmoN TO DEmmANTs 128.7 MoTION
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1 The named Defendants lease the residential units at its apartment complexes pursuantto
2 standardized lease and forms. (See id[ 20.)
3 Archstone holds itself out as a unitary entity on its website and offers industry-leading customer
4 service guarantees at all of its California apartment complexes. (See id.,
21.)
5 The employees at Archstone s California apartment complexes are uniformly trained and
6 employed by the named Defendants or their corporate affiliates. (See id.,J 21.)
7 The named Defendants monitor and regulate its employees at its California apartment complexes
8 to unsure they comply with their uniform policies and procedures. (See id.,J 22.)
9 Therefore, even if Plaintiff is unable to prove her alter-ego allegation, the named Defendants still
10 would be liable for the acts alleged in Plaintiffs complaint because Plaintiff has alleged that they are the
11 entities that are responsible for creating and implementing the policy of always charging for cleaning
12 and painting at the end of every tenancy regardless of the actual condition of the apartment unit.
13
14 2. Agency Theory ofLiability
1.5 Second, even if Plaintiff does not have a sufficient basis to allege her alter-ego and management
16 theory of liability, Plaintiff also alleges that Archstones California apartment complexes are the agents
17 of the named Defendant:
18 Plaintiff is informed and believes, and based thereon alleges, that at all times herein
mentioned, [the named Defendants] and [the named Defendants] California apartment
19
complexes, are the agents, partners, successors, or employees of each other, and, in
20
doing the things complained of herein, are acting within the course and scope of such
agency, partnership, succession or employment. Mi acts and omissions alleged to have
21 been done by [the named Defendants] and [the named Defendants] apartment complexes
22
were done with the consent, knowledge and ratification of all each other.
23 (FAC,
16.)
24 And like her alter-ego and management theory of liability, Plaintiff alleges more than enough
25 facts to support her claim:
26 Each of Archstones California apartment complexes flies under the same Archstone banner aid
27 logo. (FAC,
18.)
28
13
PLAinTIFFs OPPosITIoNTO DEFEnrANTs 128.7 MoTIoN
EXHIBIT 2
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I The named Defendants lease the residential units at its apartment complexes pursuant to
2 standardized lease and forms. (See id., 20.)
3 Archstone holds itself out as a unitary entity on its website and offers industry-leading customer
4 service guarantees at all of its California apartment complexes. (See id.,
21.)
5 The employees at Archstone s California apartment complexes are uniformly trained and
6 employed by the named Defendants or their corporate affiliates. (See id.,J 21.)
7 The named Defendants monitor and regulate its employees at its. California apartment complexes
8 to unsure they comply with their uniform policies and procedures. (See id.,f 22.)
9 Thus, even in the unlikely event that this court finds that Plaintiff did not have sufficient basis to
10 allege her alter-ego and management claims, the named Defendants could still be found liable under an
11 agency theory.
12
13 C. Plaintiffs Does Not Have to Accept As True Archstones Unsupported and Self-
14 Serving Declaration.
15 Finally, Archstone claims that sanctions are warranted because Plaintiffs counsel fail[ed] to
16 consider evidence that Defendants are not appropriate parties to this action. (Notice, at
p.
1:1213.)
17 This is ridiculous. Archstones counsel never provided Plaintiffs counsel with the evidence it speaks
18 of. As explained above, during the July 24th teleconference between the parties, Archstones counsel
19 offered to provide unidentified evidence that the named Defendants are not proper parties to this
20 action only fPlaintiff withdrew her PMKNotices. As any reasonable attorney would do, Plaintiffs
21 counsel explained that they would not agree to withdraw the Notices until after they had reviewed
22 Archstone s evidence and determined whether it provided a sufficient basis to dismiss the Defendants.
23 Archstones counsel refused.
24 But, in any event, even if Plaintiffs counsel had been provided the Declaration of Robert C.
25 Lund prior to Archstone engaging in motion practice, she was not obligated to accept it as conclusive
26 evidence. A plaintiff is not required to blindly accept a defendants self-serving and conelusory
27 declaration as true, especially when the great weight of the plaintiffs investigations suggest otherwise.
28
14
PajNnps
OPPOSITION TO DEFDANTs 128.7 MoTIoN
EXHIBIT 2
Page 253
Case 2:14-cv-03476-RGK-AJW Document 1-3 Filed 05/06/14 Page 107 of 124 Page ID
#:255
1 At most, Archstones conclusory declaration entitles Plaintiff to conduct discovery on purported facts it
2 alleges, which is precisely why this court should compel Plaintiffs PMK Notices.
3
4 III. ALTERNATIVELY, ARcH5T0NEs REQUEST FOR $80,000 IN ATToRNEYs FEES IS
5 UNSUPPORTED AND GROSSLY ExcEssIvE.
6 In the unlikely event that sanctions are warranted, Archstones request for $80,000 (again, not a
7 typo) in attorneys fees is unsupported and grossly excessive. It merely state that [t]hrough the date of
8 this declaration, Defendants have collectively incurred in excess of $80,000 in attorneys fees and costs
9 in defending this case. (Begakis Deci.,