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1 REGINALD R. HINDLEY, #113144
HINDLEY LAW OFFICE
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718 Orchard Street
3 Santa Rosa, California 95404 ELECTRONICALLY
Telephone: 707/575-3700
4 hindleylaw@outlook.com
F I L E D
Superior Court of California,
County of San Francisco
5 Attorney for Plaintiff, 08/11/2021
JUNE LEE Clerk of the Court
6 BY: EDWARD SANTOS
Deputy Clerk
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SAN FRANCISCO
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13 JUNE LEE, Case No.: CGC-21-589282
14 Plaintiff, PLAINTIFF’S NOTICE OF MOTION AND
MOTION FOR LEAVE TO FILE THIRD
15 AMENDED COMPLAINT.
vs.
16 Hearing Date: September 9, 2021
460 FRANCISCO ST HOA., and Time: 9:30 a.m.
17 WALEED GHNAIM; and Dept.: 501
DOES 1 - 10, inclusive,
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Action Filed: January 25, 2021
19 No Trial Date
Defendants.
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TO: THE CLERK OF THE COURT, THE PARTIES AND THEIR COUNSEL OF RECORD
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PLEASE TAKE NOTICE that on September 9, 2021, at 9:30 a.m., in the above department
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of the above-entitled court, located at 400 McAllister Street, San Francisco, California, Plaintiff June
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25 Lee will move for an order granting leave to file an Amended Complaint a copy of which is attached
26 to this Motion.
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1 NOTICE OF MOTION;
MOTION FOR LEAVE TO AMEND
This is Plaintiff’s first Motion with seeking leave to amend the Complaint. Previously
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2 Plaintiff did not have the benefit of Counsel. The proposed additions to the Complaint include
3 clarification of existing causes of action as well as the addition of causes of action for breach of
4 fiduciary duty, breach of equitable servitude; nuisance and trespass.
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This motion is based upon this Notice, the Memorandum of Points and Authorities, herein,
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and all other documents submitted herein in support of this motion, any argument and evidence that
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may be presented at the hearing, the records and files herein, and all other matters that the court
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properly may consider.
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11 Dated: August 11, 2021 Hindley Law Office,
12 /s/ Reginald R. Hindley
13 REGINALD R. HINDLEY,
Counsel for Plaintiff JUNE LEE
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2 NOTICE OF MOTION;
MOTION FOR LEAVE TO AMEND
1 MEMORANDUM OF POINTS AND AUTHORITIES
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I. RELIEF REQUESTED
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Plaintiff June Lee moves the court for an order granting leave to file a Third Amended
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6 Complaint, a copy of which is attached to this Moton.
7 II. RELEVANT FACTS
8 Defendant 460 Francisco Street. H.O.A., is a Homeowner’s Association existing in the City and
9 County of San Francisco, State of California. (Defendant Association) Having difficulty in 2020 locating
10 Counsel during the Pandemic, Plaintiff brought this lawsuit, Pro Se, without Counsel. Plaintiff has little
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legal experience drafting Complaints, but drafted the initial Complaints on her own. Plaintiff is a member
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of 460 Francisco Street HOA, Defendant Association, and is the owner as owner of Unit 201. The Third
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Amended Complaint alleges causes of action against Defendant Association for: breach of covenants
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under said CC&Rs, intentional infliction of emotional distress; breach of equitable servitude breach of
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16 fiduciary duty, nuisance and trespass. Defamation is pled only as to defendant Waleed Ghnaim.
17 Defendant Association previously demurred to plaintiff First Amended Complaint to which the
18 court, the Honorable Charles F. Haines, sustained said demurrer subject to plaintiff’s leave to amend.
19 Thereafter, plaintiff consulted her own Counsel about the deficiencies in the Complaint. With the advice
20 of her own Counsel, plaintiff filed a Second Amended Complaint seeking to address the deficiencies
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identified by defendant’s demurrer as well as additional causes of action for breach of fiduciary duty,
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breach of equitable servitude, nuisance and trespass.
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Thereafter Counsel for Defendant informally informed Plaintiff the Defendant Association/ HOA
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would file a second demurrer to the Complaint for deficiencies in the Second Amended Complaint as well
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as to the causes of action added by Plaintiff, for the reason that leave to amend needed to be granted by
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27 the court as required, which on review by Plaintiff appeared to be correct.
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_____________________________________________________________________________________________
3 NOTICE OF MOTION;
MOTION FOR LEAVE TO AMEND
Consequently, in this Motion, Plaintiff’s is seeking leave to file said Third Amended
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2 Complaint to clarify her existing causes of action for Breach of Covenants of the HOA’s governing
3 documents. Secondly, because the alleged facts support additional causes of action Plaintiff seeks to
4 add causes of action for: (1) breach of fiduciary duty, (2) breach of equitable servitude; (3) nuisance
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and (4) trespass. (See Exhibit "A" Plaintiff’s Third Amended Complaint attached hereto.)
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III. LEGAL AUTHORITY AND ARGUMENT
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“The court may “… in its discretion, after notice to the adverse party, allow, upon any terms as
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may be just, an amendment to any pleading.” (Cal. Civ. Proc. Code § 473 (a)(1).) Judicial policy
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10 favors resolution of all disputed matters between the parties in the same action. Thus, the court's
11 discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v.
12 Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596; Howard v.
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County of San Diego (2010) 184 Cal.App.4th 1422, 1428.)
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The policy favoring amendment is so strong that denial of leave to amend can rarely be
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justified: “If the motion to amend is timely made and the granting of the motion will not prejudice the
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17 opposing party, it is error to refuse permission to amend and where the refusal also results in a party
18 being deprived of the right to assert a meritorious cause of action or a meritorious defense …”
19 (Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 527, 530 (emphasis added); see Mabie v. Hyatt, supra, 61
20 Cal.App4th at 596.) Courts are bound to apply a policy of great liberality in permitting amendments
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to the complaint “at any stage of the proceedings, up to and including trial,” absent prejudice to the
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adverse party. (Atkinson v. Elk Corp. (2003) 109 CalApp.4th 739, 761.)
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The proposed Third Amended Complaint is necessary and proper. Plaintiff has the right to
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25 complain against Plaintiff for damages due to the breaches and misconduct by Defendant Association.
26 Plaintiff did not have the benefit of Counsel in drafting the initial Complaints. This motion is timely
27 for the reason that, the case, having been initiated in January, is still at the pleading stage; no pleading
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_____________________________________________________________________________________________
4 NOTICE OF MOTION;
MOTION FOR LEAVE TO AMEND
or Answer has been filed by Defendant Association. There is no prejudice to the Defendant. There is
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2 no trial date and no discovery has been performed.
3 Respectfully submitted,
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Dated: August 11, 2021 Hindley Law Office,
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/s/ Reginald R. Hindley
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REGINALD R. HINDLEY,
8 Counsel for Plaintiff JUNE LEE
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5 NOTICE OF MOTION;
MOTION FOR LEAVE TO AMEND
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PROOF OF SERVICE
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4 I, Reginald Hindley am Counsel for plaintiff June Lee, the Plaintiff in this action.
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Based on an agreement between the parties and counsel herein Phillips, Spallas & Angstadt,
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LLP, there is a mutual agreement to accept service by email and/or electronic transmission. On
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August 11, 2021, I caused to be served by email the following document:
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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE THIRD
9 AMENDED COMPLAINT.
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11 Emailed to: Phillips, Spallas & Angstadt, LLP as follows:
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myospe@psalaw.net
13 nstabile@psalaw.net
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August 11, 2021 /s/ Reginald R. Hindley
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REGINALD R. HINDLEY
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_____________________________________________________________________________________________
6 NOTICE OF MOTION;
MOTION FOR LEAVE TO AMEND
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Exhibit A
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_______________________________________________________________________________________
1
THIRD AMENDED COMPLAINT
1 REGINALD R. HINDLEY, #113144
2 HINDLEY LAW OFFICE
718 Orchard Street
3 Santa Rosa, California 95404
Telephone: 707/575-3700
4 hindleylaw@outlook.com
5
Attorney for Plaintiff,
6 JUNE LEE
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SAN FRANCISCO
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JUNE LEE, Case No.: CGC-21-589282
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Plaintiff, (Unlimited Civil)
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THIRD AMENDED COMPLAINT FOR
15 vs.
DAMAGES FOR:
16 460 FRANCISCO ST HOA., and 1. BREACH OF COVENANTS - 2017;
WALEED GHNAIM; and DOES 1 through 2. BREACH OF COVENANTS - 2019;
17 10, inclusive, 3. BREACH OF EQUITABLE SERVITUDE;
18 4. BREACH OF FIDUCIARY DUTY;
5. INTENTIONAL INFLICTION OF
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Defendants. EMOTIONAL DISTRESS;
20 6. NUISANCE;
7. TRESSPASS;
21 8. DEFAMATION;
22 (Action Filed: January 25, 2021)
23 _____
24 Plaintiff, June Lee, hereby complains and alleges as follows:
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1. Plaintiff, June Lee (hereinafter referred to as Plaintiff) is and at all times mentioned herein was,
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an individual, residing at 460 Francisco St. unit 201, City of San Francisco, County of San
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Francisco, California. Plaintiff has always enjoyed a very good reputation in both her personal
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_______________________________________________________________________________________
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THIRD AMENDED COMPLAINT
and professional life and is well respected in the local community as well as the business
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2 community.
3 2. Defendant 460 Francisco St. H.O.A., hereinafter referred to as “Defendant Association" upon
4 information and belief, is now, and at all times mentioned herein, a Homeowner’s Association
5 existing in the City and County of San Francisco, State of California. For all times mentioned
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herein, plaintiff’s dwelling unit was covered by, and included under, the terms and conditions of
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the CC&Rs under which “Defendant Association" is responsible to its members to maintain the
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common areas and infrastructure of the building located at 460 Francisco St., San Francisco,
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California.
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3. Under the subject CC&R's Defendant Association is also responsible to maintain, repair and
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12 service any damage to an individual Unit in conjunction with entering an individual Unit for
13 any common area repairs. Insurance on the building to cover certain repairs is also required.
14 The CC&Rs provide under Article V, Duties and Powers of the Association and Article VIII,
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General Provisions:
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5.1(a) Maintenance.
17 The Association shall maintain, repair, replace, restore, operate and manage all of
the common areas and all facilities, improvements, furnishings, equipment and
18 landscaping thereon, and all property that may be acquired by the Association.
19 8.8 Entry for Repairs
20 The Board or its appointed agents may enter any Unit, when necessary, in
connection with any maintenance, repair or construction for which the Association is
21 responsible. Such entry shall be made with as little inconvenience to the Owner as is
practicable and any damage caused thereby shall be repaired by the Board at the
22 expense of the Association.
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(See Exhibit 1 – CC&Rs of 460 Francisco St)
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4. Defendant Waleed Ghnaim, (hereinafter "Defendant Waleed") upon information and belief, is now,
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and at all times mentioned herein was an individual, residing in the City of San Francisco, County
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of San Francisco, State of California. On information and belief, Defendant Waleed holds
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ownership in the building, in unit #104 at 460 Francisco St. San Francisco, California.
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THIRD AMENDED COMPLAINT
5. This court is the proper court for trial in this action in that the actions and omissions of Defendants
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as alleged herein were made within the City of San Francisco.
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3 FIRST CAUSE OF ACTION
Breach of Covenant – 2017
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(Against Defendant Association and Does 1 through 10)
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6. Plaintiff incorporates each and every allegation set forth above as though fully set forth herein.
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7. Plaintiff and Defendant Association board members are parties to the Covenants, Conditions &
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Restrictions (CC&Rs) entered into upon purchase of their respective units at 460 Francisco St.
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9 San Francisco, California. Plaintiff purchased unit #201 on or about February 23, 1998, under
10 said CC&Rs. Plaintiff has performed all conditions, covenants, and promises as required under
11 said CC&Rs.
12 8. On or about March 5, 2014, a plumbing malfunction occurred which caused waste water to
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back-up into plaintiff’s bathroom sink. This event occurred through no fault of plaintiff, or
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plaintiff’s tenant. Plaintiff advised the Defendant Association of the plumbing problem and
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waste water back-up and requested Defendant Association to investigate and to hire and
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17 authorize an experienced plumbing company to investigate and resolve this problem. To
18 plaintiff’s knowledge Defendant Association did nothing and failed to abate the problem.
19 9. On December 15, 2016, the same waste-water plumbing problem occurred, but more severely
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when waste water backed-up again into plaintiff’s bathroom sink and onto the floors. This
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plumbing malfunction occurred through no fault of plaintiff, or plaintiff’s tenant. Plaintiff’s
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tenant was not home at the time of this waste water discharge; therefore, the waste water and
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related damage went undetected until late evening. Close to midnight, Plaintiff’s tenant arrived
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25 home, December 15, 2016, to behold this spectacle. Plaintiff’s tenant immediately called
26 Plaintiff and advised plaintiff of the standing waste water.
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4
THIRD AMENDED COMPLAINT
10. The next morning, plaintiff observed that the wastewater covered the majority of the flooring
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2 in plaintiff’s unit including the bathroom floor, adjacent bedroom floor and living room.
3 Immediately, December 16, 2016, plaintiff contacted the officers of Defendant Association to
4 advise of this repeated plumbing malfunction and requested Defendant Association
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immediately commence an investigation to resolve the problem and plumbing repairs and
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remediation.
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11. As a result of the plumbing problems, waste water discharge and damages, Plaintiff’s tenant
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move out. Plaintiff was unable to rent the Unit and suffered an ongoing loss of use. As well,
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10 the value of plaintiff’s unit significantly diminished.
11 12. On or about May and June 2017 Plaintiff submitted clean-up and remediation bills to
12 Defendant Association and the HOA insurance company State Farm in the amount of $28,333
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for the cost of repairs to her unit. Plaintiff ask Defendant Association to authorize and allow
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plaintiff to assert a claim for insurance coverage under the HOA insurance policy.
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13. On or about June, 15, 2017, Defendant Association made partial payments to Plaintiff for a
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17 total of $14,576, but refused to pay more, leaving an unpaid balance of $13,768. (See Exhibit-2
18 plaintiff’s email to HOA management, Ocean Beach Management Company) As well, on or
19 about June 15, 2017, Defendant Association refused to allow plaintiff to further assert a HOA
20 insurance claim for said repairs for reimbursement.
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14. Under section 5 of the CC&Rs and by failing to follow up, investigate and make the necessary
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common area plumbing repairs Defendant Association breached said CC&Rs. As well
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Defendant Association failed to execute remediation.
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25 15. The repeated sewage discharge and overflow created a toxic private nuisance and trespass
26 against Plaintiff as further indicated below. Plaintiff subsequently hired third party contractors
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THIRD AMENDED COMPLAINT
to remove the affected carpet, flooring, areas of mold, wall repairs and install new tile and
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2 paint.
3 16. WHEREFORE, Plaintiff prays against Defendant Association as set forth below.
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SECOND CAUSE OF ACTION
6 Breach of Covenant - 2019
(Against Defendant Association and Does 1 through 10)
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8 17. Plaintiff incorporates each and every allegation set forth above as though fully set forth herein.
9 18. On April 29, 2019, a water leak inside a common wall was causing water damage to the
10 building and garage area below. Said water leak was traced by a local plumbing company to a
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pipe inside the common wall adjacent to and joining the bathroom shower common wall in
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plaintiff’s Unit—believed attributable to defective original construction.
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19. To address the problem, the plumber needed to access plaintiff’s Unit and break open the
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common wall from plaintiff bathroom area. Initially, the plumber was only able to make a
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16 temporary repair sufficient to stop the leak and therefore the wall left open for further repairs.
17 Pursuant to the CC&Rs, Plaintiff and Defendant Association understood any damages to Unit
18 201 and the cost of related repairs would be covered by Defendant Association.
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New Luck
20 Apr 27, 2019, 8:47 PM
to Jill, Robert, Clarissa, Adrian, Bill, Bill, Margaret, Niki, Toni, Wally,
21 dmrabier@yahoo.com
Bob,
22 My experiences when my unit were flooded, the leak came from upper unit #301, so I
23 suggest that you inspect #301 also.
I have made all the arrangements necessary, so that I will meet you in my unit at 10am,
24 April 29, 2019 for you to conduct the inspection. I will see you there.
It’s great that we are finally try to solve this “ongoing serious water leaking” problem.
25 June
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27 New Luck
Apr 30, 2019, 7:19 AM
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THIRD AMENDED COMPLAINT
to Clarissa, Celena, 460francisco201, Adrian, Bill, Daniel, Jill, Margaret, Niki, Robert,
1 Toni, Wally, william, bcc: William
2 Hi Clarissa,
I'm glad we met on Monday morning (4/29/2019), and located the problem which was a leak
3 in the copper pipe in the common area.
As we agreed, the plumber temporarily fixed the problem so that the building water can be
4 turned back on, and working on unit #101. He will return to my unit and do the
permanent fix to the copper pipe in the common area, and any related mold issues. As
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we agreed all costs will be covered by HOA.
6 I hope we can expedite this. Please notify me when you will need access to my unit to
complete the repair.
7 Thanks,
June
8 (Emphasis added)
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20. The initial plumbing repair on April 29, 2019, left plaintiff’s unit unhabitable and exposed to
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mold, asbestos and moisture from the open wall. While opening the wall on April 29, 2019,
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allowed the plumber to make a temporary plumbing repair to stop the leak it also exposed
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plaintiff’s unit to mold, asbestos and moisture long residing in the common wall.
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14 21. This first temporary repair occurred on April 29, 2019; a permanent repair was still required.
15 Authorization of the additional work and permits was Defendant Association’s responsibility.
16 The final plumbing repairs could not be performed until the mold, asbestos and moisture was
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removed from the open common wall in plaintiff Unit. Defendant Association, however, failed
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to timely authorize, schedule and follow up to authorize such necessary additional testing and
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work required to identify and alleviate the mold asbestos and moisture.
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21 22. On the afternoon of June 7, 2019, an environmental assessment was performed in plaintiff Unit
22 in and around the common wall area inside plaintiff Unit. This assessment resulted in a
23 positive test for asbestos and mold in said open common wall area. Defendant Association
24 knew the urgency of this work, but delayed getting it done. This important assessment was
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required in order to perform the required clean-up of the mold, asbestos and moisture in and
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around the common wall area necessary to make the permanent plumbing repair.
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THIRD AMENDED COMPLAINT
23. Once the toxic mold, asbestos and moisture were identified on or about June 12, 2019,
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2 Defendant Association still delayed to engaged for its clean-up until the end of July 2019. Such
3 delay was outrageous and shocking to Plaintiff. In the meantime, plaintiff’s unit remained
4 uninhabitable and exposed to said toxic mold, asbestos and moisture from the open wall area
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making her Unit dangerous to enter.
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24. Plaintiff implored Defendant Association to authorize the necessary remediation work
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immediately and removal of said mold, asbestos and moisture so that the plumber could return
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make the final plumbing repairs necessary to make and restore her Unit to a safe and habitable
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10 condition. During July 2019, Plaintiff made numerous phone calls and sent countless emails to
11 Defendant Association to complete the clean-up this work to no avail.
12 25. The failure of Defendant Association to act diligently by July 20, 2019 and at least authorize
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the abatement of the toxic mold and asbestos so that the final plumbing repairs could go
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forward is inexplicable. For example, on July 20, 2019, officer and the acting Secretary of
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Defendant Association, Russell Guniam reveals that the Defendant Association intends to hold
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17 off authorizing the clean-up, abatement work, of Plaintiff’s unit, offering the excuse that the
18 Defendant Association was “not aware” of the damage to Plaintiff’s Unit and that Defendant
19 Association required “further approval” from its members.
20 From: rgumina@salesianclub.org
21 Date: July 20, 2019
22 June:
To my knowledge only two checks have been issued thus far (see above). Not living
23 at the property, I wasn’t even aware of the damage until recently. You can check
with Ocean Beach Management to see if this is correct. I have been told that checks
24 will not be issued to individuals but to contractors once the work has been complete.
25 I had signed the contract and sent it in but told them to hold off until I got final
approval from all the members of the HOA. Once I have that I will tell the
26 contractor to begin work. Hopefully that will be on Monday because I am leaving
for vacation on Tuesday. Hope this answers your questions. Russ
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(See Exhibit "3")
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THIRD AMENDED COMPLAINT
26. Not until August 2, 2019, did clean-up and removal of the mold, asbestos and moisture relating
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2 to Plaintiff’s Unit begin. Removal of the mold and asbestos required the demolition and
3 destruction of the walls, floors and bathroom pertaining to plaintiff Unit, leaving primarily only
4 the structural wood framing in place. Demolition of the bathroom walls and floors was
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required in order to address and remove the mold and asbestos. See for, example, the
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following four photos Exhibit "4A–4D":
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THIRD AMENDED COMPLAINT
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THIRD AMENDED COMPLAINT
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THIRD AMENDED COMPLAINT
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THIRD AMENDED COMPLAINT
27. Pursuant to section 8.8 of the CC&R's, Defendant Association was responsible to repair and
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2 restore Plaintiff’s Unit as quickly as possible. Unfortunately, for months Defendant
3 Association’s did nothing, or very little. Defendant Association failure to act exposed
4 plaintiff’s unit to mold, asbestos, moisture and an unsanitary and contaminated conditions for
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an extended period of time. Under the CC&Rs and San Francisco building code Defendant
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Association was required to address quickly: 1) the repairs necessary to fix the leaking pipe; 2)
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identify and remove any existing toxic mold, asbestos and moisture and 3) perform final
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repairs to the affected walls, floors and fixtures in Plaintiff’s Unit as necessary including mold
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10 resistant sheetrock, texturing, taping and painting and fixtures, all of which Defendant
11 Association failed to perform. In failing to timely make these repairs Plaintiff’s Unit was
12 rendered uninhabitable from May – December 2019. Consequently, Defendant Association
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exacerbated the toxic condition of Plaintiff Unit, its loss of use and Plaintiff’s emotional
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distress and suffering.
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28. As a result of Defendant Association’s procrastination, inaction, recklessness and intentional
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17 disregard of plaintiff HOA membership and ownership rights, Plaintiff suffered consequential
18 damages. Meanwhile plaintiff remained responsible to the HOA to keep up and make
19 payments to Defendant Association for monthly HOA fees, taxes and insurance collected by
20 the Defendant Association from Plaintiff. Plaintiff incurred lost rents as a result of Defendant
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Association’s inaction and intentional delays which caused Plaintiff severe emotional distress,
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anxiety, deteriorating health and financial hardship pled further below.
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24 Due to Defendant Association’s Inaction Plaintiff Undertook to
Find, Engage and Pay For Professionals to Make Said Repairs
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26 29. After the mold and asbestos removal and demolition of Plaintiff bathroom, on or about August
27 7, 2019, Defendant Association failed to restore Plaintiff’s bathroom to a finished condition
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THIRD AMENDED COMPLAINT
including the walls floors, fixtures and accessories destroyed by Defendant Association in the
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2 process of entering Plaintiff’s Unit to make the necessary common plumbing repairs including
3 removal of mold and asbestos.
4 30. In September and October, 2019 Plaintiff again requested her unit be restored to no avail.
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Defendant Association again did nothing. Walls were left open, water and drain pipes exposed
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flooring remained unfinished all of which left plaintiff’s Unit uninhabitable and in a dangerous
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condition. During September October and December 2019, Plaintiff still had no bathroom
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whatsoever; no accessible shower, toilet, sink and no usable bedroom—all unfinished and
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10 dangerous.
11 31. While the mold and asbestos removal were completed on August 7, 2019, the final plumbing
12 repair was not authorized and performed until September 23, 2019.
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32. On or about October 20, 2019, Defendant Association still had not authorized the repairs
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necessary to put plaintiff’s Unit back into a habitable condition. Defendant Association’s
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conduct was outrageous and shocking. Plaintiff was extremely frustrated, stressed,
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17 emotionally distraught over Defendant Association’s inaction, rhetoric, false promises and lack
18 of progress in making the promised repairs. For example, on October 7, 2019, plaintiff sent the
19 following email to Defendant Association.
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21 From: New Luck
Mon, Oct 7, 2019, 10:26 PM
22 To: Bill, Karen, Kerry, reception@wardtekinc.co, Robert, Clarissa, Russell, Adrian,
460,
23 Hi Bill,
As I told you I could not wait any longer, since you asked me to send KSYC's
24 Contract to you, which I did last week, I never heard back from you. No one told me
25 about the meeting today. I had signed the Contract with KSYC.
Ward-Tek has never given me a start date, They told me that the earliest they could
26 start will be next year. As I said I could not wait that long. So please release my
portion of insurance money that's due me,
27 Thank you,
June
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THIRD AMENDED COMPLAINT
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2 33. On or about October 20, 2019, plaintiff sent an email to the Defendant Association requesting
3 Defendant Association release the funds for the necessary work to repair and restore her Unit,
4 as follows:
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From: New Luck
6 To: Bill Rose
cc: Russell Gumina ,
7 460 Francisco <460francisco@googlegroups.com>,
Clarissa Chavez ,
8 Adrian Rojo ,
Robert Copeland ,
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Bill Rose
10 Date: Oct 10,
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1 REGINALD R. HINDLEY, #113144 HINDLEY LAW OFFICE 2 718 Orchard Street 3 Santa Rosa, California 95404 ELECTRONICALLY Telephone: 707/575-3700 4 hindleylaw@outlook.com F I L E D Superior Court of California, County of San Francisco 5 Attorney for Plaintiff, 08/11/2021 JUNE LEE Clerk of the Court 6 BY: EDWARD SANTOS Deputy Clerk 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SAN FRANCISCO 11 12 13 JUNE LEE, Case No.: CGC-21-589282 14 Plaintiff, PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE THIRD 15 AMENDED COMPLAINT. vs. 16 Hearing Date: September 9, 2021 460 FRANCISCO ST HOA., and Time: 9:30 a.m. 17 WALEED GHNAIM; and Dept.: 501 DOES 1 - 10, inclusive, 18 Action Filed: January 25, 2021 19 No Trial Date Defendants. 20 _____ 21 TO: THE CLERK OF THE COURT, THE PARTIES AND THEIR COUNSEL OF RECORD 22 PLEASE TAKE NOTICE that on September 9, 2021, at 9:30 a.m., in the above department 23 of the above-entitled court, located at 400 McAllister Street, San Francisco, California, Plaintiff June 24 25 Lee will move for an order granting leave to file an Amended Complaint a copy of which is attached 26 to this Motion. 27 28 _____________________________________________________________________________________________ 1 NOTICE OF MOTION; MOTION FOR LEAVE TO AMEND This is Plaintiff’s first Motion with seeking leave to amend the Complaint. Previously 1 2 Plaintiff did not have the benefit of Counsel. The proposed additions to the Complaint include 3 clarification of existing causes of action as well as the addition of causes of action for breach of 4 fiduciary duty, breach of equitable servitude; nuisance and trespass. 5 This motion is based upon this Notice, the Memorandum of Points and Authorities, herein, 6 and all other documents submitted herein in support of this motion, any argument and evidence that 7 may be presented at the hearing, the records and files herein, and all other matters that the court 8 properly may consider. 9 10 11 Dated: August 11, 2021 Hindley Law Office, 12 /s/ Reginald R. Hindley 13 REGINALD R. HINDLEY, Counsel for Plaintiff JUNE LEE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _____________________________________________________________________________________________ 2 NOTICE OF MOTION; MOTION FOR LEAVE TO AMEND 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 3 I. RELIEF REQUESTED 4 Plaintiff June Lee moves the court for an order granting leave to file a Third Amended 5 6 Complaint, a copy of which is attached to this Moton. 7 II. RELEVANT FACTS 8 Defendant 460 Francisco Street. H.O.A., is a Homeowner’s Association existing in the City and 9 County of San Francisco, State of California. (Defendant Association) Having difficulty in 2020 locating 10 Counsel during the Pandemic, Plaintiff brought this lawsuit, Pro Se, without Counsel. Plaintiff has little 11 legal experience drafting Complaints, but drafted the initial Complaints on her own. Plaintiff is a member 12 of 460 Francisco Street HOA, Defendant Association, and is the owner as owner of Unit 201. The Third 13 Amended Complaint alleges causes of action against Defendant Association for: breach of covenants 14 under said CC&Rs, intentional infliction of emotional distress; breach of equitable servitude breach of 15 16 fiduciary duty, nuisance and trespass. Defamation is pled only as to defendant Waleed Ghnaim. 17 Defendant Association previously demurred to plaintiff First Amended Complaint to which the 18 court, the Honorable Charles F. Haines, sustained said demurrer subject to plaintiff’s leave to amend. 19 Thereafter, plaintiff consulted her own Counsel about the deficiencies in the Complaint. With the advice 20 of her own Counsel, plaintiff filed a Second Amended Complaint seeking to address the deficiencies 21 identified by defendant’s demurrer as well as additional causes of action for breach of fiduciary duty, 22 breach of equitable servitude, nuisance and trespass. 23 Thereafter Counsel for Defendant informally informed Plaintiff the Defendant Association/ HOA 24 would file a second demurrer to the Complaint for deficiencies in the Second Amended Complaint as well 25 as to the causes of action added by Plaintiff, for the reason that leave to amend needed to be granted by 26 27 the court as required, which on review by Plaintiff appeared to be correct. 28 _____________________________________________________________________________________________ 3 NOTICE OF MOTION; MOTION FOR LEAVE TO AMEND Consequently, in this Motion, Plaintiff’s is seeking leave to file said Third Amended 1 2 Complaint to clarify her existing causes of action for Breach of Covenants of the HOA’s governing 3 documents. Secondly, because the alleged facts support additional causes of action Plaintiff seeks to 4 add causes of action for: (1) breach of fiduciary duty, (2) breach of equitable servitude; (3) nuisance 5 and (4) trespass. (See Exhibit "A" Plaintiff’s Third Amended Complaint attached hereto.) 6 III. LEGAL AUTHORITY AND ARGUMENT 7 “The court may “… in its discretion, after notice to the adverse party, allow, upon any terms as 8 may be just, an amendment to any pleading.” (Cal. Civ. Proc. Code § 473 (a)(1).) Judicial policy 9 10 favors resolution of all disputed matters between the parties in the same action. Thus, the court's 11 discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. 12 Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596; Howard v. 13 County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) 14 The policy favoring amendment is so strong that denial of leave to amend can rarely be 15 justified: “If the motion to amend is timely made and the granting of the motion will not prejudice the 16 17 opposing party, it is error to refuse permission to amend and where the refusal also results in a party 18 being deprived of the right to assert a meritorious cause of action or a meritorious defense …” 19 (Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 527, 530 (emphasis added); see Mabie v. Hyatt, supra, 61 20 Cal.App4th at 596.) Courts are bound to apply a policy of great liberality in permitting amendments 21 to the complaint “at any stage of the proceedings, up to and including trial,” absent prejudice to the 22 adverse party. (Atkinson v. Elk Corp. (2003) 109 CalApp.4th 739, 761.) 23 The proposed Third Amended Complaint is necessary and proper. Plaintiff has the right to 24 25 complain against Plaintiff for damages due to the breaches and misconduct by Defendant Association. 26 Plaintiff did not have the benefit of Counsel in drafting the initial Complaints. This motion is timely 27 for the reason that, the case, having been initiated in January, is still at the pleading stage; no pleading 28 _____________________________________________________________________________________________ 4 NOTICE OF MOTION; MOTION FOR LEAVE TO AMEND or Answer has been filed by Defendant Association. There is no prejudice to the Defendant. There is 1 2 no trial date and no discovery has been performed. 3 Respectfully submitted, 4 5 Dated: August 11, 2021 Hindley Law Office, 6 /s/ Reginald R. Hindley 7 REGINALD R. HINDLEY, 8 Counsel for Plaintiff JUNE LEE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _____________________________________________________________________________________________ 5 NOTICE OF MOTION; MOTION FOR LEAVE TO AMEND 1 PROOF OF SERVICE 2 3 4 I, Reginald Hindley am Counsel for plaintiff June Lee, the Plaintiff in this action. 5 Based on an agreement between the parties and counsel herein Phillips, Spallas & Angstadt, 6 LLP, there is a mutual agreement to accept service by email and/or electronic transmission. On 7 August 11, 2021, I caused to be served by email the following document: 8 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE THIRD 9 AMENDED COMPLAINT. 10 11 Emailed to: Phillips, Spallas & Angstadt, LLP as follows: 12 myospe@psalaw.net 13 nstabile@psalaw.net 14 15 August 11, 2021 /s/ Reginald R. Hindley 16 REGINALD R. HINDLEY 17 18 19 20 21 22 23 24 25 26 27 28 _____________________________________________________________________________________________ 6 NOTICE OF MOTION; MOTION FOR LEAVE TO AMEND 1 2 3 4 Exhibit A 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _______________________________________________________________________________________ 1 THIRD AMENDED COMPLAINT 1 REGINALD R. HINDLEY, #113144 2 HINDLEY LAW OFFICE 718 Orchard Street 3 Santa Rosa, California 95404 Telephone: 707/575-3700 4 hindleylaw@outlook.com 5 Attorney for Plaintiff, 6 JUNE LEE 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SAN FRANCISCO 11 12 JUNE LEE, Case No.: CGC-21-589282 13 Plaintiff, (Unlimited Civil) 14 THIRD AMENDED COMPLAINT FOR 15 vs. DAMAGES FOR: 16 460 FRANCISCO ST HOA., and 1. BREACH OF COVENANTS - 2017; WALEED GHNAIM; and DOES 1 through 2. BREACH OF COVENANTS - 2019; 17 10, inclusive, 3. BREACH OF EQUITABLE SERVITUDE; 18 4. BREACH OF FIDUCIARY DUTY; 5. INTENTIONAL INFLICTION OF 19 Defendants. EMOTIONAL DISTRESS; 20 6. NUISANCE; 7. TRESSPASS; 21 8. DEFAMATION; 22 (Action Filed: January 25, 2021) 23 _____ 24 Plaintiff, June Lee, hereby complains and alleges as follows: 25 1. Plaintiff, June Lee (hereinafter referred to as Plaintiff) is and at all times mentioned herein was, 26 an individual, residing at 460 Francisco St. unit 201, City of San Francisco, County of San 27 Francisco, California. Plaintiff has always enjoyed a very good reputation in both her personal 28 _______________________________________________________________________________________ 2 THIRD AMENDED COMPLAINT and professional life and is well respected in the local community as well as the business 1 2 community. 3 2. Defendant 460 Francisco St. H.O.A., hereinafter referred to as “Defendant Association" upon 4 information and belief, is now, and at all times mentioned herein, a Homeowner’s Association 5 existing in the City and County of San Francisco, State of California. For all times mentioned 6 herein, plaintiff’s dwelling unit was covered by, and included under, the terms and conditions of 7 the CC&Rs under which “Defendant Association" is responsible to its members to maintain the 8 common areas and infrastructure of the building located at 460 Francisco St., San Francisco, 9 California. 10 3. Under the subject CC&R's Defendant Association is also responsible to maintain, repair and 11 12 service any damage to an individual Unit in conjunction with entering an individual Unit for 13 any common area repairs. Insurance on the building to cover certain repairs is also required. 14 The CC&Rs provide under Article V, Duties and Powers of the Association and Article VIII, 15 General Provisions: 16 5.1(a) Maintenance. 17 The Association shall maintain, repair, replace, restore, operate and manage all of the common areas and all facilities, improvements, furnishings, equipment and 18 landscaping thereon, and all property that may be acquired by the Association. 19 8.8 Entry for Repairs 20 The Board or its appointed agents may enter any Unit, when necessary, in connection with any maintenance, repair or construction for which the Association is 21 responsible. Such entry shall be made with as little inconvenience to the Owner as is practicable and any damage caused thereby shall be repaired by the Board at the 22 expense of the Association. 23 (See Exhibit 1 – CC&Rs of 460 Francisco St) 24 4. Defendant Waleed Ghnaim, (hereinafter "Defendant Waleed") upon information and belief, is now, 25 and at all times mentioned herein was an individual, residing in the City of San Francisco, County 26 of San Francisco, State of California. On information and belief, Defendant Waleed holds 27 ownership in the building, in unit #104 at 460 Francisco St. San Francisco, California. 28 _______________________________________________________________________________________ 3 THIRD AMENDED COMPLAINT 5. This court is the proper court for trial in this action in that the actions and omissions of Defendants 1 as alleged herein were made within the City of San Francisco. 2 3 FIRST CAUSE OF ACTION Breach of Covenant – 2017 4 (Against Defendant Association and Does 1 through 10) 5 6. Plaintiff incorporates each and every allegation set forth above as though fully set forth herein. 6 7. Plaintiff and Defendant Association board members are parties to the Covenants, Conditions & 7 Restrictions (CC&Rs) entered into upon purchase of their respective units at 460 Francisco St. 8 9 San Francisco, California. Plaintiff purchased unit #201 on or about February 23, 1998, under 10 said CC&Rs. Plaintiff has performed all conditions, covenants, and promises as required under 11 said CC&Rs. 12 8. On or about March 5, 2014, a plumbing malfunction occurred which caused waste water to 13 back-up into plaintiff’s bathroom sink. This event occurred through no fault of plaintiff, or 14 plaintiff’s tenant. Plaintiff advised the Defendant Association of the plumbing problem and 15 waste water back-up and requested Defendant Association to investigate and to hire and 16 17 authorize an experienced plumbing company to investigate and resolve this problem. To 18 plaintiff’s knowledge Defendant Association did nothing and failed to abate the problem. 19 9. On December 15, 2016, the same waste-water plumbing problem occurred, but more severely 20 when waste water backed-up again into plaintiff’s bathroom sink and onto the floors. This 21 plumbing malfunction occurred through no fault of plaintiff, or plaintiff’s tenant. Plaintiff’s 22 tenant was not home at the time of this waste water discharge; therefore, the waste water and 23 related damage went undetected until late evening. Close to midnight, Plaintiff’s tenant arrived 24 25 home, December 15, 2016, to behold this spectacle. Plaintiff’s tenant immediately called 26 Plaintiff and advised plaintiff of the standing waste water. 27 28 _______________________________________________________________________________________ 4 THIRD AMENDED COMPLAINT 10. The next morning, plaintiff observed that the wastewater covered the majority of the flooring 1 2 in plaintiff’s unit including the bathroom floor, adjacent bedroom floor and living room. 3 Immediately, December 16, 2016, plaintiff contacted the officers of Defendant Association to 4 advise of this repeated plumbing malfunction and requested Defendant Association 5 immediately commence an investigation to resolve the problem and plumbing repairs and 6 remediation. 7 11. As a result of the plumbing problems, waste water discharge and damages, Plaintiff’s tenant 8 move out. Plaintiff was unable to rent the Unit and suffered an ongoing loss of use. As well, 9 10 the value of plaintiff’s unit significantly diminished. 11 12. On or about May and June 2017 Plaintiff submitted clean-up and remediation bills to 12 Defendant Association and the HOA insurance company State Farm in the amount of $28,333 13 for the cost of repairs to her unit. Plaintiff ask Defendant Association to authorize and allow 14 plaintiff to assert a claim for insurance coverage under the HOA insurance policy. 15 13. On or about June, 15, 2017, Defendant Association made partial payments to Plaintiff for a 16 17 total of $14,576, but refused to pay more, leaving an unpaid balance of $13,768. (See Exhibit-2 18 plaintiff’s email to HOA management, Ocean Beach Management Company) As well, on or 19 about June 15, 2017, Defendant Association refused to allow plaintiff to further assert a HOA 20 insurance claim for said repairs for reimbursement. 21 14. Under section 5 of the CC&Rs and by failing to follow up, investigate and make the necessary 22 common area plumbing repairs Defendant Association breached said CC&Rs. As well 23 Defendant Association failed to execute remediation. 24 25 15. The repeated sewage discharge and overflow created a toxic private nuisance and trespass 26 against Plaintiff as further indicated below. Plaintiff subsequently hired third party contractors 27 28 _______________________________________________________________________________________ 5 THIRD AMENDED COMPLAINT to remove the affected carpet, flooring, areas of mold, wall repairs and install new tile and 1 2 paint. 3 16. WHEREFORE, Plaintiff prays against Defendant Association as set forth below. 4 5 SECOND CAUSE OF ACTION 6 Breach of Covenant - 2019 (Against Defendant Association and Does 1 through 10) 7 8 17. Plaintiff incorporates each and every allegation set forth above as though fully set forth herein. 9 18. On April 29, 2019, a water leak inside a common wall was causing water damage to the 10 building and garage area below. Said water leak was traced by a local plumbing company to a 11 pipe inside the common wall adjacent to and joining the bathroom shower common wall in 12 plaintiff’s Unit—believed attributable to defective original construction. 13 19. To address the problem, the plumber needed to access plaintiff’s Unit and break open the 14 common wall from plaintiff bathroom area. Initially, the plumber was only able to make a 15 16 temporary repair sufficient to stop the leak and therefore the wall left open for further repairs. 17 Pursuant to the CC&Rs, Plaintiff and Defendant Association understood any damages to Unit 18 201 and the cost of related repairs would be covered by Defendant Association. 19 New Luck 20 Apr 27, 2019, 8:47 PM to Jill, Robert, Clarissa, Adrian, Bill, Bill, Margaret, Niki, Toni, Wally, 21 dmrabier@yahoo.com Bob, 22 My experiences when my unit were flooded, the leak came from upper unit #301, so I 23 suggest that you inspect #301 also. I have made all the arrangements necessary, so that I will meet you in my unit at 10am, 24 April 29, 2019 for you to conduct the inspection. I will see you there. It’s great that we are finally try to solve this “ongoing serious water leaking” problem. 25 June 26 27 New Luck Apr 30, 2019, 7:19 AM 28 _______________________________________________________________________________________ 6 THIRD AMENDED COMPLAINT to Clarissa, Celena, 460francisco201, Adrian, Bill, Daniel, Jill, Margaret, Niki, Robert, 1 Toni, Wally, william, bcc: William 2 Hi Clarissa, I'm glad we met on Monday morning (4/29/2019), and located the problem which was a leak 3 in the copper pipe in the common area. As we agreed, the plumber temporarily fixed the problem so that the building water can be 4 turned back on, and working on unit #101. He will return to my unit and do the permanent fix to the copper pipe in the common area, and any related mold issues. As 5 we agreed all costs will be covered by HOA. 6 I hope we can expedite this. Please notify me when you will need access to my unit to complete the repair. 7 Thanks, June 8 (Emphasis added) 9 20. The initial plumbing repair on April 29, 2019, left plaintiff’s unit unhabitable and exposed to 10 mold, asbestos and moisture from the open wall. While opening the wall on April 29, 2019, 11 allowed the plumber to make a temporary plumbing repair to stop the leak it also exposed 12 plaintiff’s unit to mold, asbestos and moisture long residing in the common wall. 13 14 21. This first temporary repair occurred on April 29, 2019; a permanent repair was still required. 15 Authorization of the additional work and permits was Defendant Association’s responsibility. 16 The final plumbing repairs could not be performed until the mold, asbestos and moisture was 17 removed from the open common wall in plaintiff Unit. Defendant Association, however, failed 18 to timely authorize, schedule and follow up to authorize such necessary additional testing and 19 work required to identify and alleviate the mold asbestos and moisture. 20 21 22. On the afternoon of June 7, 2019, an environmental assessment was performed in plaintiff Unit 22 in and around the common wall area inside plaintiff Unit. This assessment resulted in a 23 positive test for asbestos and mold in said open common wall area. Defendant Association 24 knew the urgency of this work, but delayed getting it done. This important assessment was 25 required in order to perform the required clean-up of the mold, asbestos and moisture in and 26 around the common wall area necessary to make the permanent plumbing repair. 27 28 _______________________________________________________________________________________ 7 THIRD AMENDED COMPLAINT 23. Once the toxic mold, asbestos and moisture were identified on or about June 12, 2019, 1 2 Defendant Association still delayed to engaged for its clean-up until the end of July 2019. Such 3 delay was outrageous and shocking to Plaintiff. In the meantime, plaintiff’s unit remained 4 uninhabitable and exposed to said toxic mold, asbestos and moisture from the open wall area 5 making her Unit dangerous to enter. 6 24. Plaintiff implored Defendant Association to authorize the necessary remediation work 7 immediately and removal of said mold, asbestos and moisture so that the plumber could return 8 make the final plumbing repairs necessary to make and restore her Unit to a safe and habitable 9 10 condition. During July 2019, Plaintiff made numerous phone calls and sent countless emails to 11 Defendant Association to complete the clean-up this work to no avail. 12 25. The failure of Defendant Association to act diligently by July 20, 2019 and at least authorize 13 the abatement of the toxic mold and asbestos so that the final plumbing repairs could go 14 forward is inexplicable. For example, on July 20, 2019, officer and the acting Secretary of 15 Defendant Association, Russell Guniam reveals that the Defendant Association intends to hold 16 17 off authorizing the clean-up, abatement work, of Plaintiff’s unit, offering the excuse that the 18 Defendant Association was “not aware” of the damage to Plaintiff’s Unit and that Defendant 19 Association required “further approval” from its members. 20 From: rgumina@salesianclub.org 21 Date: July 20, 2019 22 June: To my knowledge only two checks have been issued thus far (see above). Not living 23 at the property, I wasn’t even aware of the damage until recently. You can check with Ocean Beach Management to see if this is correct. I have been told that checks 24 will not be issued to individuals but to contractors once the work has been complete. 25 I had signed the contract and sent it in but told them to hold off until I got final approval from all the members of the HOA. Once I have that I will tell the 26 contractor to begin work. Hopefully that will be on Monday because I am leaving for vacation on Tuesday. Hope this answers your questions. Russ 27 (See Exhibit "3") 28 _______________________________________________________________________________________ 8 THIRD AMENDED COMPLAINT 26. Not until August 2, 2019, did clean-up and removal of the mold, asbestos and moisture relating 1 2 to Plaintiff’s Unit begin. Removal of the mold and asbestos required the demolition and 3 destruction of the walls, floors and bathroom pertaining to plaintiff Unit, leaving primarily only 4 the structural wood framing in place. Demolition of the bathroom walls and floors was 5 required in order to address and remove the mold and asbestos. See for, example, the 6 following four photos Exhibit "4A–4D": 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _______________________________________________________________________________________ 9 THIRD AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _______________________________________________________________________________________ 10 THIRD AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _______________________________________________________________________________________ 11 THIRD AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _______________________________________________________________________________________ 12 THIRD AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Exhibits "4A – 4D") _______________________________________________________________________________________ 13 THIRD AMENDED COMPLAINT 27. Pursuant to section 8.8 of the CC&R's, Defendant Association was responsible to repair and 1 2 restore Plaintiff’s Unit as quickly as possible. Unfortunately, for months Defendant 3 Association’s did nothing, or very little. Defendant Association failure to act exposed 4 plaintiff’s unit to mold, asbestos, moisture and an unsanitary and contaminated conditions for 5 an extended period of time. Under the CC&Rs and San Francisco building code Defendant 6 Association was required to address quickly: 1) the repairs necessary to fix the leaking pipe; 2) 7 identify and remove any existing toxic mold, asbestos and moisture and 3) perform final 8 repairs to the affected walls, floors and fixtures in Plaintiff’s Unit as necessary including mold 9 10 resistant sheetrock, texturing, taping and painting and fixtures, all of which Defendant 11 Association failed to perform. In failing to timely make these repairs Plaintiff’s Unit was 12 rendered uninhabitable from May – December 2019. Consequently, Defendant Association 13 exacerbated the toxic condition of Plaintiff Unit, its loss of use and Plaintiff’s emotional 14 distress and suffering. 15 28. As a result of Defendant Association’s procrastination, inaction, recklessness and intentional 16 17 disregard of plaintiff HOA membership and ownership rights, Plaintiff suffered consequential 18 damages. Meanwhile plaintiff remained responsible to the HOA to keep up and make 19 payments to Defendant Association for monthly HOA fees, taxes and insurance collected by 20 the Defendant Association from Plaintiff. Plaintiff incurred lost rents as a result of Defendant 21 Association’s inaction and intentional delays which caused Plaintiff severe emotional distress, 22 anxiety, deteriorating health and financial hardship pled further below. 23 24 Due to Defendant Association’s Inaction Plaintiff Undertook to Find, Engage and Pay For Professionals to Make Said Repairs 25 26 29. After the mold and asbestos removal and demolition of Plaintiff bathroom, on or about August 27 7, 2019, Defendant Association failed to restore Plaintiff’s bathroom to a finished condition 28 _______________________________________________________________________________________ 14 THIRD AMENDED COMPLAINT including the walls floors, fixtures and accessories destroyed by Defendant Association in the 1 2 process of entering Plaintiff’s Unit to make the necessary common plumbing repairs including 3 removal of mold and asbestos. 4 30. In September and October, 2019 Plaintiff again requested her unit be restored to no avail. 5 Defendant Association again did nothing. Walls were left open, water and drain pipes exposed 6 flooring remained unfinished all of which left plaintiff’s Unit uninhabitable and in a dangerous 7 condition. During September October and December 2019, Plaintiff still had no bathroom 8 whatsoever; no accessible shower, toilet, sink and no usable bedroom—all unfinished and 9 10 dangerous. 11 31. While the mold and asbestos removal were completed on August 7, 2019, the final plumbing 12 repair was not authorized and performed until September 23, 2019. 13 32. On or about October 20, 2019, Defendant Association still had not authorized the repairs 14 necessary to put plaintiff’s Unit back into a habitable condition. Defendant Association’s 15 conduct was outrageous and shocking. Plaintiff was extremely frustrated, stressed, 16 17 emotionally distraught over Defendant Association’s inaction, rhetoric, false promises and lack 18 of progress in making the promised repairs. For example, on October 7, 2019, plaintiff sent the 19 following email to Defendant Association. 20 21 From: New Luck Mon, Oct 7, 2019, 10:26 PM 22 To: Bill, Karen, Kerry, reception@wardtekinc.co, Robert, Clarissa, Russell, Adrian, 460, 23 Hi Bill, As I told you I could not wait any longer, since you asked me to send KSYC's 24 Contract to you, which I did last week, I never heard back from you. No one told me 25 about the meeting today. I had signed the Contract with KSYC. Ward-Tek has never given me a start date, They told me that the earliest they could 26 start will be next year. As I said I could not wait that long. So please release my portion of insurance money that's due me, 27 Thank you, June 28 _______________________________________________________________________________________ 15 THIRD AMENDED COMPLAINT 1 2 33. On or about October 20, 2019, plaintiff sent an email to the Defendant Association requesting 3 Defendant Association release the funds for the necessary work to repair and restore her Unit, 4 as follows: 5 From: New Luck 6 To: Bill Rose cc: Russell Gumina , 7 460 Francisco <460francisco@googlegroups.com>, Clarissa Chavez , 8 Adrian Rojo , Robert Copeland , 9 Bill Rose 10 Date: Oct 10,