Case Name: People of the State of California, et al. v. San Jose Yang, LLC, et al.
Case No.: 18CV324074
I. Background

This is a nuisance-abatement action commenced by the City of San Jose and the People of the State of California, by and through the City Attorney for the City of San Jose (collectively, “Plaintiffs”) against defendants San Jose Yang, LLC and its CEO Shufei Yang (collectively, “Defendants”) to close a brothel operating under the guise of a massage parlor on property owned by San Jose Yang, LLC at 156 South Jackson Street in San Jose, California.

The Court recently recounted in detail the factual and procedural history of this abatement action in the order overruling Defendants’ demurrer to the operative first amended complaint (“FAC”) and denying their motion to strike that pleading. (Order of 10/10/2018.) Consequently, the Court incorporates by reference its previous summary of the case and does not repeat the same herein. As explained previously, the only claim asserted against Defendants in the FAC that remains at issue is Plaintiffs’ third cause of action to recover civil penalties and attorney’s fees for violation of Title 6 of the San Jose Municipal Code, which is known more commonly as San Jose’s Massage Ordinance.

Currently before the Court is Defendants’ motion for judgment on the pleadings as to the third cause of action, which is accompanied by a request for judicial notice. Plaintiffs oppose the motion and filed a request for judicial notice as well.

II. Legal Standard

Pursuant to Code of Civil Procedure section 438, a defendant may move for judgment on the pleadings on the ground the complaint fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).) The pleading defect must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 438, subd. (d).)

III. Requests for Judicial Notice

When a court takes judicial notice, it recognizes and accepts “the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117 [internal quotation marks and citation omitted].)

Plaintiffs and Defendants request judicial notice of court records. Additionally, Defendants request judicial notice of a settlement agreement executed by Plaintiffs and the other defendants, Bebe Spa and Hung Q. Nguyen, and Plaintiffs request judicial notice of provisions of the San Jose Municipal Code.

Defendants do not articulate and it is not otherwise apparent to the Court that the settlement agreement is a proper subject of judicial notice under Evidence Code section 451 or 452. Additionally, the settlement agreement is not relevant to the present motion. Consequently, the settlement agreement is not a proper subject of judicial notice.

A court may take judicial notice of court records pursuant to Evidence Code section 452, subdivision (d). With that said, a majority of the court records that are the subject of the parties’ requests are irrelevant.

Plaintiffs and Defendants request judicial notice of the Court’s previous orders denying Plaintiffs’ application for a preliminary injunction and finding Defendants not guilty of contempt. But these orders are not material to the disposition of the present motion. Accordingly, the orders are not proper subjects of judicial notice.

Next, Plaintiffs and Defendants request judicial notice of the FAC. Although the FAC is relevant, it is unnecessary to take judicial notice of it because the Court must necessarily consider it as the pleading under review. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1.)

Plaintiffs also request judicial notice of the original complaint, the temporary restraining order issued earlier in this action, and the previous order on the demurrer to and motion to strike the FAC. Of these records, only the previous order on the demurrer and motion to strike is relevant to the disposition of the motion and, thus, a proper subject of judicial notice.
Additionally, Plaintiffs and Defendants request judicial notice of the request for dismissal of the first, second, and fourth causes of action asserted against Defendants. This court record is relevant to the argument Defendants advance in support of their motion. Thus, the request for dismissal is a proper subject of judicial notice.

Finally, Plaintiffs request judicial notice of provisions of the San Jose Municipal Code. These provisions come within Evidence Code section 452, subdivision (b), which authorizes judicial notice of “[r]egulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.” (See, e.g., Weisner v. Santa Cruz Cty. Civil Service Com. (2016) 248 Cal.App.4th 340, 344, fn. 1.) Even so, the provisions of the San Jose Municipal Code are not relevant as the parties do not advance any argument based thereupon. Thus, the Court does not take judicial notice of those provisions.

Based on the foregoing, Defendants’ request for judicial notice is GRANTED as to the request for dismissal and is otherwise DENIED. Plaintiffs’ request for judicial notice is GRANTED as to the request for dismissal and the previous order on the demurrer and motion to strike and is otherwise DENIED.

IV. Merits of Motion for Judgment on the Pleadings

Defendants’ presentation of their motion suffers from a significant lack of clarity. In their supporting memorandum, they include block quotations from the FAC and then proceed to make conclusory and disjointed statements about each paragraph. Their reasoning is not especially clear and is not otherwise illuminated by citation to legal authority or analysis.
Despite this lack of clarity, it appears Defendants’ central argument in support of their motion is that Plaintiffs fail to allege facts sufficient to support their third cause of action because they dismissed the first, second, and fourth causes of action, which are incorporated by reference therein. Although not especially clear, this argument is apparently based on the proposition that dismissal of the first, second, and fourth causes of action resulted in the striking of the allegations therein upon which the third cause of action is based. But they do not cite and the Court is not aware of any authority for that proposition. “‘Where a point is merely asserted [ ] without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion.’ [Citation.]” (People v. Dougherty (1982) 138 Cal.App.3d 278, 282; accord Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–85; see also Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934.) Thus, the underlying premise of Defendants’ argument has no basis in the law and will not be discussed any further.

Additionally, even assuming dismissal of particular counts resulted in the striking of allegations appearing therein, it is unclear how Defendants conclude no claim has been stated. The third cause of action is based on background allegations that precede the separately denominated claims in the pleading, including the claims that were dismissed. (See FAC, ¶¶ 1–22.) Thus, the third cause of action is not based exclusively on the allegations in the first, second, and fourth causes of action. Accordingly, even accepting the underlying premise of Defendants’ argument as true, there is no basis for concluding that the dismissal of several claims resulted in the elimination of all of the facts pleaded in support of the third cause of action.

In conclusion, Defendants do not demonstrate Plaintiffs fail to allege facts sufficient to state a cause of action for violation of San Jose’s Massage Ordinance. Their motion for judgment on the pleadings is therefore DENIED