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Mark Hooshmand, Esq. (SBN 194878)
Tyson Redenbarger, Esq. (SBN 294424)
Jenny Jin, Esq. (SBN 296184) ee
Hooshmand Law Group
22 Battery St., Ste. 610 tee tee
San Francisco, CA 94111 County of San Francisco
Tel: (415) 318-5709 11/16/2017
Fax: (415) 376-5897 Clerk of the Court
Attorneys for Plaintiffs Angelique Rochelle, individually EL Ieepugeeierh
and as Guardian ad litem of Ella Lawton and Leona Paslay and
Baz Rochelle individually
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO — UNLIMITED CIVIL JURISDICTION
ANGELIQUE ROCHELLE, individually CASENO.: CGC-16-555761
and as Guardian ad litem of ELLA
LAWTON and LEONA PASLAY and BAZ
ROCHELLE individually
TRIAL BRIEF OF PLAINTIFFS
Plaintiffs,
TREVOR DENG, MAY DENG, YU TAO
)
)
)
)
)
)
)
vs. )
)
) Date: November 13, 2017
)
)
)
)
TAN and DOES 1 TO 10, Time: 9:30am
Dept: 206
Defendants.
TRIAL BRIEF OF PLAINTIFFS
ROCHELLE ET AL. Y. DENG ET AL. ~ TRIAL BRIEF OF PLAINTIFFS 1L STATEMENT OF FACTS
Plaintiff is a former tenant of a three-bedroom unit located at 778 25"" Avenue, San
Francisco, California (“Subject Premises”). Plaintiff Angelique Rochelle moved into the Subject
Premises in November 2003 pursuant to a written lease, and resided there with her three children,
Baz Rochelle, Ella Lawton, and Leona Paslay, until July 2014. Defendants Trevor Deng and May
Deng purchased the building in or around July 2013, and moved into the upstairs unit at 776 25"
Avenue following an owner move-in (“OMI”) eviction against the tenants of this upstairs unit.
In August 2013, Defendants attempted to evict Plaintiff for having roommates, which she
had for years under the prior owners. Although Plaintiff was able to remain in the Subject Premises
following the first eviction attempt, the eviction process caused Ms. Rochelle an enormous amount
of stress, and she lost her job in part to missing several days of work to attend court. After the first
eviction attempt, Defendants began telling Ms. Rochelle that Trevor Deng's mother, Defendant Yu
Yao Tan, would be moving into the Subject Premises, so that she could help take care of Defendants’
children.
On June 13, 2014, Defendants served Plaintiff with a relative move-in (“RMI”) eviction
notice, which indicated that Trevor Deng's mother (Defendant Tan) was moving in. Defendants
again, represented to Plaintiff that Defendant Tan would be moving in to take care of Defendants’
children. Relying on Defendant's representation that his mother was moving in, Ms. Rochelle found
a new apartment in Oakland. On June 25, 2014, Ms. Rochelle agreed to a move out date, and
confirmed this through a (void) one page document that Defendants had prepared, which included
penalty clauses and waivers of rights under the Rent Ordinance, which are void.' Plaintiff thereafter
moved out in July 2014.
Following Plaintiff's move out, Ms. Rochelle continued to believe that Defendant Tan had
moved into her former unit. She even happened to drive by the Subject Premises, but did not see
any signs that Defendant Tan had not moved in, or any signs of construction or remodeling. Ms.
Rochelle had no reason to suspect that Defendant Tan had in fact, not moved into the Subject
1 The one page document is void under San Francisco Rent Ordinance section 37.9(e) which
states: “Any waiver by a tenant of rights under this Chapter 37 shall be void as contrary to public
policy.”
ROCHELLE ETAL. V, DENG ET AL. - TRIAL BRIEF OF PLAINTIFFS 2Premises, since Defendants had been so adamant as to the importance of having Defendant Tan live
in the same building as Defendants.
It was not until October 2016 that Ms. Rochelle discovered through a third party news
reporter from NBC that Defendant Tan was not living at the Subject Premises. This was the first
time Plaintiff had any suspicion that Defendants had violated the law or been untruthful about the
eviction. Had Ms. Rochelle known that Defendant Tan was not going to move into the Subject
Premises, she would not have given up her rent-controlled unit and family home.
Plaintiff filed the present Complaint on December 8, 2016 for Negligence, Breach of Quiet
Enjoyment, Violations of the San Francisco Rent Ordinance (“SFRO”), Intentional Infliction of
Emotional Distress, Negligent Misrepresentation, Intentional Misrepresentation, Rescission, and
Common Law Wrongful Eviction.
I. LEGAL ARGUMENT
A. Plaintiff’s Claims
Plaintiff's claims center around the fact that Defendants served a Relative move-in eviction
on Plaintiff, which claimed that Defendant Tan was moving into the property and that she would
live there for 36 months. Those representations were false. It is undisputed that Defendant Tan did
not move into the property and instead, Defendant Trevor Deng renovated the unit and re-rented it
at a greatly increased rent. Facts will also establish that Defendant Tan had no plans to move to the
property and the eviction was based on a fraud. Those facts establish that Defendants wrongfully
evicted Plaintiff and violated the SFRO. Plaintiffs seek damages for the loss of their rent controlled
unit, emotion distress, and punitive damages.
Defendants will claim a one page document signed on June 25, 2014 absolves them of any
obligations under the Relative move-in eviction and that the same document provides a full defense
to the case. Plaintiff claims the one page document signed on June 25, 2014 was entered into based
on a false representation and that it was signed pursuant to undue pressure. Plaintiff is seeking to
have the one page document excluded as it is void, against public policy, and the document should
also be rescinded due to fraud and other legal arguments. Plaintiff has filed motions in limine
addressing these legal issues.
ROCHELLE ETAL. V. DENG ET AL. - TRIAL BRIEF OF PLAINTIFFS 3B. Defendants Claimed Defenses Fail
First, almost all the arguments in Defendants' trial brief are arguments that Defendants at-
tempted to make in their Motion for Summary Judgment, which was denied by the court on October
16, 2017. Defendants also make various requests in their trial brief, which is improper as a trial
brief is not a motion and therefore the requests cannot be granted. Plaintiff responds to Defendants'
arguments as follows:
1. Plaintiff’s Claims Are Not Barred By the Statute of Limitations
Under the Code of Civil Procedure, the statute of limitations for an action upon any contract
is four years. (CCP § 337) Here, Ms. Rochelle signed a written lease when she moved into the
Subject Premises. This lease constitutes a written contract, any accordingly any action for a breach
of this contract (breach of quiet enjoyment, wrongful eviction) has a four year statute of limitations.
(CCP § 337)
Plaintiff’s third cause of action is for breach of quiet enjoyment, a covenant that is implied
in every rental agreement. Plaintiff moved out of the Subject Premises on July 8, 2014 and the
complaint was filed on December 6, 2016. Since at least this cause of action has a four year statute
of limitations, Defendants is incorrect in arguing that Plaintiff’s entire action is barred.
Additionally, under the delayed discovery rule, which Plaintiff has pleaded, the statute of
limitations period does not begin to run until a plaintiff discovers or could have discovered through
the exercise of reasonable diligence all facts essential to his or her cause of action. (See Leafv. City
of San Mateo (1980) 104 Cal.App.3d 398, 407.) Here, Plaintiff did not discover that Defendant
Tan had not moved into the Subject Premises until October 2016, when a reporter from NBC
contacted Ms. Rochelle, alerting her to the fact that there were new tenants in her unit. Thus, the
statute of limitations period did not begin to run until October 2016, and all of Plaintiff’s claims are
timely.
Defendants argue that tolling does not apply here, claiming that Plaintiff was obligated to
have inquired or investigated whether Defendant Tan had moved in, at an earlier time. However,
this misstates the obligations under the delayed discovery rule, as Plaintiff had no reason to suspect
ROCHELLE ET AL. V. DENG ET AL. — TRIAL BRIEF OF PLAINTIFFS 4that Defendants had performed a fraudulent relative move-in eviction, until the NBC reporter
contacted Ms. Rochelle.
“(U]nder the delayed discovery rule, a cause of action accrues and the statute of limitations
begins to run when the plaintiff has reason to suspect an injury and some wrongful cause, unless the
plaintiff pleads and proves that a reasonable investigation at that time would not have revealed a
factual basis for that particular cause of action.” (Fox v. Ethicon Endo-Surgery (2005) 35 Cal.4th
797, 803 (emphasis added).)
Aplaintiff's duty to inquire only arises when “the plaintiff becomes aware of facts that would
cause a reasonably prudent person to suspect his injuries were the result of a wrongdoing. If the
plaintiff was in possession of such facts...it must next be determined whether 'such an investigation
would have disclosed a factual basis for a cause of action.” (Alexander v. Exxon Mobil (2013) 219
Cal.App.4th 1236, 1251, internal citation omitted.)
Here, Defendants immediately jump to the second prong under the delayed discovery rule
as to whether an investigation would have disclosed that Defendant Tan did not move into the
Subject Premises. However, before October 2016, Plaintiff was not in possession of any facts that
which would have given her any reason to suspect that Defendant Tan had not moved into her unit.
Trevor Deng repeatedly represented to Ms. Rochelle that his mother would be moving into her unit,
and Ms. Rochelle had no reason to suspect otherwise, thus there was no trigger to investigate.
The statute of limitations thus, did not begin to run until October 2016, when Plaintiff
discovered that Defendant Tan did not move into the Subject Premises, in violation of the law.
Finally, the full and correct language of CACI 455 is the following:
If defendant proves that plaintiff's claimed harm occurred before [insert date from
applicable statute of limitations], plaintiff's lawsuit was still filed on time if of
plaintiff proves that before that date
Plaintiff did not discover, and did not know of facts that would have caused a
reasonable _ person to suspect that she had suffered harm that was caused by
someone's wrongful conduct.
[or]
ROCHELLE ET AL. V. DENG ET AL. ~ TRIAL BRIEF OF PLAINTIFFS 5Plaintiff did not discovery, and a reasonable and diligent investigation would not
have disclosed that [specify factual basis for caused of action] contributed to
Plaintiff's harm.
Defendants will seek to have only the second option read to the jury, which is incorrect. The
law states that a two-part analysis is used to assess when a claim has accrued under the discovery
rule. The initial step focuses on whether the plaintiff possessed information that would cause a
reasonable person to inquire into the cause of his injuries. Under California law, the inquiry duty
arises only when the plaintiff becomes aware of facts that would cause a reasonably prudent
person to suspect his injuries were the result of wrongdoing. If the plaintiff was in possession of
such facts, thereby triggering his duty to investigate, it must next be determined whether ‘such an
investigation would have disclosed a factual basis for a cause of action[.] [T]he statute of limitations
begins to run on that cause of action when the investigation would have brought such information
to light.’ ” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1251, internal citation omitted.)
Plaintiff in this case was not “aware of facts that would cause a reasonably prudent person
to suspect his injuries were the result of wrongdoing so there was no duty to investigate”. Therefore,
the Defendants are incorrect and only first option of the jury instruction must be read to the Jury.
2. The One-Page Document is Void, or Subject to Rescission, and in No Way can, by
its Own Language, Serve as a Defense to this Case
It is first noted that the one page document is void. and Plaintiff has filed a motion in limine
requesting the document be excluded as such. Secondly, Plaintiff's claims for rescission is proper
and if granted, the one page document would not cause any of Plaintiff's causes of action to fail.
First, the one page document is void under San Francisco Rent Ordinance section 37.9(e)
which states: “Any waiver by a tenant of rights under this Chapter 37 shall be void as
contrary to public policy.”
Here, the subject move out document contains the following unenforceable language,
which makes any agreement void:
“Should tenant Angelique Rochelle fail to timely vacate the subject premise on or
before July 25"", 2014, tenant understands and acknowledge that she must refund the
full $25,000 immediately and a lawsuit shall be immediately filed to effect the
summary removal therefrom.”
ROCHELLE ET AL. V. DENG ET AL. - TRIAL BRIEF OF PLAINTIFFS 6The penalty of having to return the entire relocation amount, and having an eviction
lawsuit filed against Plaintiff bears no reasonable relationship to the range of actual damages that
the parties could have anticipated would flow from a breach. (Ridgley v. Topa Thrift & Loan
Assn.(1998) 17 Cal.4th 970, 977.)
In fact, if Angelique failed to move out by July 25, 2014, she would not have to give her
relocation monies back to Defendant, because Defendant was legally obligated to pay relocation
monies under the RMI notice served on June 13, 2014. Ms. Rochelle and her family were owed
this relocation money under section 37.9(a)(8) of the Rent Ordinance, pursuant to the
requirements under a no-fault eviction.
Even if Plaintiff was to be evicted for having not moved pursuant to the RMI notice, they
were legally entitled to relocation monies under the Rent Ordinance. Therefore, the clause above
is void where Plaintiff was not obligated to return the money under any circumstances. (See also
Fox Chicago Realty Corp. v. Zukor’s Dresses (App. 2 Dist. 1942) 50 Cal.App.2d 129.) Having to
return the money constitutes a waiver of Plaintiff's rights under the Rent Ordinance, which
requires that Plaintiff be paid relocation expenses if they are evicted due to an RMI. (Rent
Ordinance section 37.9(e) states that “Any waiver by a tenant of rights under this Chapter 37
shall be void as contrary to public policy.”)
Further, a clause requiring such relocation money to be forfeited, and losing possession
of the unit, equates to an improper liquidated damages clause and therefore renders the agreement
void.
Defendants used of the move out document to attempt to have Plaintiff waive her rights
to mandated relocation expenses; such a waiver is expressly void under the rent ordinance. Thus,
the entire move out document is based on unlawful clauses that are contrary to public policy.
Additionally, the language “a lawsuit shall be immediately filed to effect the summary
removal therefrom” is not based on any legal authority. This move out document is not an
unlawful detainer settlement agreement. Plaintiff was already being evicted pursuant to an RMI
eviction and the move out document does nothing to waive the RMI obligations or Plaintiffs
ROCHELLE ET AL. V. DENG ET AL. —- TRIAL BRIEF OF PLAINTIFFS 727
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rights under the Rent Ordinance. Further, such a waiver of eviction protections is void under Rent
Ordinance section 37.9e).
For the foregoing reasons, the move out document constitutes an improper penalty that is
not related to any range of actual damages, and an improper waiver of tenant rights. The entire
document should be excluded at trial.
If the one page document is not excluded, Plaintiff's action still does not fail as this document
merely confirmed the date of Plaintiffs move out. This document did not contain a provision as to
any waiver of rights. nor does it indicate the Defendants' relative move-in eviction is canceled. There
is no language whatsoever releasing Defendants from their obligations under the Rent Ordinance
and the Defendants never rescinded the RMI notice, had it canceled, or informed Plaintiff (written
or orally) that the RMI notice was canceled or rescinded. There is nothing in writing that Defendants
no longer had any obligations. Therefore, based on the Rent Ordinance and the express language
of the document, which the Defendant's drafted, the document cannot stand for what Defendants
claim.
Defendants will argue that Plaintiff was paid money in connection with the one page
document; however, it is undisputed that Defendants were obligated to pay Plaintiff relocation fees
under the no-fault eviction provisions of the Rent Ordinance, so the $25,000 did not constitute any
additional consideration, beyond what Plaintiff was entitled to already. (See SFRO § 37.9(a)(8).)
The $25,000 included Plaintiff's security deposit and the mandated relocation payments for Ms.
Rochelle and 3 minors, some of whom had disabilities; the total was thus equivalent to what Plaintiff
was owed under the Rent Ordinance. The one-page document then, cannot bar any of Plaintiff's
present claims, as Defendants performed a wrongful and fraudulent relative move-in by not
complying with the law after Plaintiff vacated. In any event, Plaintiff seeks to rescind the one page
document based on the fraudulent representations that Defendants made, about Defendant Tan
moving in.
3. The One Page Document is Void and No Contract Exists Based on Defendants’
Wrongful and Fraudulent Conduct
There is ample authority to support rescission in this case. First, a contract may be rescinded
ROCHELLE ET AL. V. DENG ET AL. — TRIAL BRIEF OF PLAINTIFFS 8if the consent of the party rescinding was given through duress or undue influence. (Civil Code §
1689(b)(1).) Undue influence consists of “taking an unfair advantage of another's weakness of
mind” or “taking a grossly oppressive and unfair advantage of another's necessities or distress.”
(Civil Code § 1575)
Some of the factual elements to be considered in finding undue influence include “(1)
discussion of the transaction at an unusual or inappropriate time, (2) consummation of the
transaction in an unusual place, (3) insistent demand that the business be finished at once, (4)
extreme emphasis on untoward consequences of delay, (5) the use of multiple persuaders by the
dominant side against a single servient party, (6) absence of third-party advisers to the servient party,
(7) statements that there is no time to consult financial advisers or attorneys.” (Odorizzi v. Bloomfield
School Dist. (1966) 246 Cal.App.2d 123, 132.)
Here, the elements for undue influence have been met. Ms. Rochelle was under a significant
amount of pressure at the time she signed the one-page document, as Defendants had previously
attempted to evict her from the Subject Premises, and then represented that Defendant's mother
would be moving into the unit. Defendant Trevor Deng presented Ms. Rochelle with this one-page
document in her living room, and stated that they had to sign his version, despite Ms. Rochelle
having prepared her own move-out confirmation draft. Ms. Rochelle was only afforded a few
minutes to review the document and did so while Defendant stood over her shoulder. Defendant
took advantage of his position as landlord, and forced Plaintiff to vacate the Subject Premises based
on a false representation.
Second, CACI 335 sets out the requirements for voiding or canceling of a contract based on
fraud, which states the following:
Plaintiff claims that no contract was created because her consent was obtained by fraud. To
succeed, Plaintiff must prove all of the following:
1. That Defendants represented that [insert alleged fraudulent statement];
2. That Defendants knew that the representation was not true;
3. That Defendants made the representation to persuade Plaintiff to agree to the contract;
4. That Plaintiff reasonably relied on this representation;
ROCHELLE ETAL. V. DENG ET AL. — TRIAL BRIEF OF PLAINTIFFS 9and
5. That Plaintiff would not have entered into the contract if [he/she/it] had known that the
representation was not true.
If you decide that [name of defendant] has proved all of the above, then no contract was
created.
Here, Plaintiff meets the requirements of the above CACI section. as the only reason why
Ms. Rochelle agreed to a move out date was because she reasonably relied on Defendants’
representation that Defendant Tan would be moving into the Subject Premises. This representation
was false, as Defendants immediately renovated the Subject Premises, and re-rented it to third
parties for $4,500/month, after Plaintiffs moved out.
Defendants incorrectly argue that rescission is not available under the law for various reasons
including lack of proper notice and delay in the return of the funds. First, notice in this case was
proper where a plaintiff's service of the complaint seeking rescission "shall be deemed to be"
the requisite notice. (Civil Code § 1691 (emphasis added)). Thereafter, the rescinding party is
entitled to bring an action to obtain relief based upon the rescission (or, viewed another way, an
action to enforce the rescission). (Id.) Here, Defendants' own papers confirm that Plaintiff has
satisfied the elements for rescission. First, notice of rescission was given to Defendants when
Plaintiff filed the original Complaint on December 8, 2016, which contains a cause of action (ninth)
for rescission. Second, restoration of the $25,000 given to Plaintiff by Defendants can be delayed
until judgment, as Plaintiff has spent the monies on relocating.
Next, as to the return of the funds, it is proper to delay the return until a judgment is rendered
where restoration is impossible because settlement or other monies have been spent. The financially
constrained parties can turn to Civil Code section 1693 to delay restoration until judgment, unless
the defendants can show substantial prejudice. (Village Northridge Homeowners Ass‘n v. State Farm
Fire and Cas. Co. (2010) 50 Cal.4th 913, 931.) A claim for rescission is not barred by a plaintiff
who acknowledged the restoration requirement, but alleged that she could not satisfy that
requirement because, after defendants had paid her a sum of money, she had spent the money on
medical expenses. (/d. At 923.)
ROCHELLE ET AL. V, DENG ET AL. —- TRIAL BRIEF OF PLAINTIFFS 10Plaintiff has adequately claimed she spent the money, thus justifying the delay. Additionally,
Defendants have not been substantially prejudiced, as the $25,000 amount given to Plaintiff by
Defendants was approximately the exact amount owed to Plaintiff by Defendants as the tenants!
relocation expenses for a no-fault eviction under Section 37.9C(2)(e) of the Rent Ordinance.
Defendants are therefore not prejudiced in paying Plaintiff this amount, since they would have been
required to pay this amount or more, in order for Plaintiff to be displaced regardless of the one page
document. Nor have Defendants been prejudiced in not having gone forward with an unlawful
detainer action, as Defendants never actually planned to have Defendant Tan move into the Subject
Premises, and therefore had no legitimate basis under the Rent Ordinance to evict Plaintiffs.
Therefore, Plaintiff s rescission claim is allowed and proper where there was adequate notice in the
complaint and delayed restoration is permitted under Civil Code § 1693.
Lastly, contrary to Defendants’ arguments, the litigation privilege does not bar Plaintiff from
a claim of rescission, as even notices of eviction can be proper evidence of a landlord's wrongful
acts, as further explained below. To hold otherwise would enable landlords to perform improper or
fraudulent evictions, and then simply shield themselves from all liability by asserting that the
eviction notice is protected by the litigation privilege.
4. The Litigation Privilege Does Not Bar Evidence of Wrongdoing by the Landlord,
and The Eviction Notice is Proper Evidence of This Wrongdoing
Defendants attempt to shield all evidence of wrongdoing by claiming that Plaintiff’s action
is barred by the litigation privilege. This is incorrect, as otherwise every wrongful eviction action
would be barred, simply because the landlord previously served an eviction notice.
First, the gravamen of Plaintiff’s action does not center around Defendants' service of an
eviction notice, but around “Defendant's wrongful termination of Plaintiffs’ tenancy” and violation
of the Rent Ordinance, which includes evidence of renovations and the re-rental of the Subject
Premises, when there was an obligation for Defendant to move in. These wrongful acts are not
protected activities,
In Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1287, under a similar factual situation as
the present case, the court found that “terminating a tenancy or removing a property from the
ROCHELLE ET AL. V. DENG ET AL. — TRIAL BRIEF OF PLAINTIFFS 11rental market are not activities taken in furtherance of the constitutional rights of petition or
free speech.” (emphasis added.) The court further explained that the plaintiff's complaint was “not
premised on [Defendant's] protected activities of initiating or prosecuting the unlawful detainer
action, but on her removal of the apartment from the rental market and fraudulent eviction of
[Plaintiff] for the purpose of installing a family member who never moved in. (/d.)
Moreover, courts have consistently held that even notices of eviction can still be proper
evidence of a landlord's wrongful acts, as they evidence the improper termination of the tenancy.
And merely because the service of an eviction notice “preceded the filing of plaintiff's operative
complaint, or even triggered the filing of plaintiff's complaint, does not compel the conclusion that
her complaint is based on [defendant's] service of the notice of termination...” (Ulkarim v, Westfield
LLC (2014) 227 Cal.App.4th 1266, 1275.)
The court in Ulkarim concluded “a tenant's complaint against a landlord filed after the
service of a notice of termination and the filing of a complaint for unlawful detainer does not arise
from those particular activities if the gravamen of the tenant's complaint challenges the decision to
terminate the tenancy or other conduct in connection with the termination apart from the service of
a notice of termination or filing of an unlawful detainer complaint.” (/d. at 1279.) Notably, the court
in Ulkarim went onto hold that it “decline[s] to follow Birkner, supra, 156 Cal.App.4" 275...and
Felman v. 1100 Park Lane Associates (2009) 160 Cal.App.4th 1467... to the extent that those
opinions suggest a different rule.” (/d.)
Here, Plaintiffs' suit was not based on Defendants’ mere service of an eviction notice, but on
Defendants' wrongful conduct in fraudulently inducing Plaintiffs to give up their tenancy, and
thereafter not moving Defendant Tan into the Subject Premises. The gravamen of Plaintiffs’ action
is centered around Defendants’ fraudulent relative move-in eviction, and failures to thereafter
comply with the law. Plaintiffs' claims are not based on the service of the notice itself, and are thus
not barred by the litigation privilege.
Additionally, litigation privilege does not apply in this case as there was no pending
litigation. The critical point is that the mere potential or “bare possibility” that judicial proceedings
“might be instituted” in the future is insufficient to invoke the litigation privilege. (Edwards v.
ROCHELLE ET AL. V. DENG ET AL. - TRIAL BRIEF OF PLAINTIFFS 12Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 36.) In every case, the privileged
communication must have some relation to an imminent lawsuit or judicial proceeding which
is contemplated seriously and in good faith to resolve a dispute, and not simply as a tactical ploy to
negotiate a bargain. (Id. emphasis added.) A threat to file a lawsuit would be insufficient to activate
the privilege if the threat is merely a negotiating tactic and not a serious proposal made in good faith
contemplation of going to court. (Id. at 35)
In this case there was no lawsuit. And the Defendants were not instituting a lawsuit —
therefore the litigation privilege does not apply. (Edwards v. Centex Real Estate Corp. (1997) 53
Cal.App.4th 15, 36.) Even if there were threats to file a lawsuit, those were merely negotiation
tactics, and do not trigger the privilege. (Id.)
Defendants do not have any facts that show that any lawsuit was pending. And under the
Ulkarim case, the notice of eviction is proper evidence of the wrongful eviction, and not privileged.
Additionally, Defendants fail to cite the relevant law, and have no facts showing that there is
privileged conduct. Therefore, litigation privilege does not apply, and Defendants should be
precluded from making any such argument concerning that privilege.
5. Rescission Should Be Decided By the Jury As it Involves Questions of Fact
As explained above, Plaintiff seeks to rescind the one-page document based on fraud and
undue influence. These are dependent on the determination of triable issues of fact that the jury
should decide, after being empaneled.
First, Plaintiff seeks to prove fraud, which is always tried to a jury. Actual fraud is always a
question of fact. (Civ. Code, § 1574) Whether releases of personal injury claims were obtained by
fraud was jury question, where evidence thereon was conflicting. Mairo v. Yellow Cab Co. of
California (1929) 208 Cal. 350, 281. Therefore, where the issue of fraud and whether the contract
exists, or is to be rescinded in a question for the jury.
Additionally, the question of undue influence is decided as a question of fact, as “direct
evidence of undue influence is rarely obtainable and, thus the court is normally relegated to
determination by inference from the totality of facts and circumstances. Indeed, there are no fixed
definitions or inflexible formulas.” (Keithley v. Civil Service Bd. of the City of Oakland (1970) 11
ROCHELLE ET AL. V. DENG ET AL. - TRIAL BRIEF OF PLAINTIFFS 1327
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Cal.App.3d 443, 451, internal citations omitted.) The inquiry centers around “whether from the
entire context it appears that one’s will was overborne and he was induced to do or forbear to do an
act which he would not do, or would do, if left to act freely.” (/d.)
As the role of the jury is to act as the trier of fact and fraud and rescission are based upon
undue influence and Defendants’ misstatements and concealment, a jury trial should proceed on the
claim of rescission. (See Evid. Code § 312(a).)
6. Plaintiff is Entitled to an Award of Punitive Damages
The evidence has shown that Defendants' actions were malicious and oppressive where
Defendants fraudulently recovered possession of the Subject Premises with ulterior motives and
dishonest intent. Defendant's actions were malicious and oppressive as they intended to, or
consciously disregarded the probability that, their actions would cause, and were causing Plaintiff
to suffer severe emotional distress because of being evicted from her home of ten years. Plaintiff is
therefore entitled to award of punitive damages and will seek such.
Ill. CONCLUSION
Defendants acted wrongfully where they falsely represented to Plaintiff that Defendant Tan
would be moving into the Subject Premises, which was untrue and did not occur. Defendants’ real
intent and plan was to displace Plaintiff from her rent-controlled unit, so that Defendants could
renovate and re-rent the Subject Premises for substantially higher rent profits. Plaintiff was
wrongfully displaced as a result, lost a rent controlled unit, and their family was split apart.
Plaintiff's claims are not barred by the statute of limitations nor the litigation privilege and therefore
Plaintiffs are entitled to damages in this case.
Dated: November 14, 2017 Respectfully Submitted,
HOOSHMAND LAW GROU!
Jenny Jin, Esq.
Attorney for Plaintiffs
ROCHELLE ET AL. V. DENG ET AL. - TRIAL BRIEF OF PLAINTIFFS 14
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Mark Hooshmand, Esq. (SBN 194878) Tyson Redenbarger, Esq. (SBN 294424) Jenny Jin, Esq. (SBN 296184) ee Hooshmand Law Group 22 Battery St., Ste. 610 tee tee San Francisco, CA 94111 County of San Francisco Tel: (415) 318-5709 11/16/2017 Fax: (415) 376-5897 Clerk of the Court Attorneys for Plaintiffs Angelique Rochelle, individually EL Ieepugeeierh and as Guardian ad litem of Ella Lawton and Leona Paslay and Baz Rochelle individually SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO — UNLIMITED CIVIL JURISDICTION ANGELIQUE ROCHELLE, individually CASENO.: CGC-16-555761 and as Guardian ad litem of ELLA LAWTON and LEONA PASLAY and BAZ ROCHELLE individually TRIAL BRIEF OF PLAINTIFFS Plaintiffs, TREVOR DENG, MAY DENG, YU TAO ) ) ) ) ) ) ) vs. ) ) ) Date: November 13, 2017 ) ) ) ) TAN and DOES 1 TO 10, Time: 9:30am Dept: 206 Defendants. TRIAL BRIEF OF PLAINTIFFS ROCHELLE ET AL. Y. DENG ET AL. ~ TRIAL BRIEF OF PLAINTIFFS 1L STATEMENT OF FACTS Plaintiff is a former tenant of a three-bedroom unit located at 778 25"" Avenue, San Francisco, California (“Subject Premises”). Plaintiff Angelique Rochelle moved into the Subject Premises in November 2003 pursuant to a written lease, and resided there with her three children, Baz Rochelle, Ella Lawton, and Leona Paslay, until July 2014. Defendants Trevor Deng and May Deng purchased the building in or around July 2013, and moved into the upstairs unit at 776 25" Avenue following an owner move-in (“OMI”) eviction against the tenants of this upstairs unit. In August 2013, Defendants attempted to evict Plaintiff for having roommates, which she had for years under the prior owners. Although Plaintiff was able to remain in the Subject Premises following the first eviction attempt, the eviction process caused Ms. Rochelle an enormous amount of stress, and she lost her job in part to missing several days of work to attend court. After the first eviction attempt, Defendants began telling Ms. Rochelle that Trevor Deng's mother, Defendant Yu Yao Tan, would be moving into the Subject Premises, so that she could help take care of Defendants’ children. On June 13, 2014, Defendants served Plaintiff with a relative move-in (“RMI”) eviction notice, which indicated that Trevor Deng's mother (Defendant Tan) was moving in. Defendants again, represented to Plaintiff that Defendant Tan would be moving in to take care of Defendants’ children. Relying on Defendant's representation that his mother was moving in, Ms. Rochelle found a new apartment in Oakland. On June 25, 2014, Ms. Rochelle agreed to a move out date, and confirmed this through a (void) one page document that Defendants had prepared, which included penalty clauses and waivers of rights under the Rent Ordinance, which are void.' Plaintiff thereafter moved out in July 2014. Following Plaintiff's move out, Ms. Rochelle continued to believe that Defendant Tan had moved into her former unit. She even happened to drive by the Subject Premises, but did not see any signs that Defendant Tan had not moved in, or any signs of construction or remodeling. Ms. Rochelle had no reason to suspect that Defendant Tan had in fact, not moved into the Subject 1 The one page document is void under San Francisco Rent Ordinance section 37.9(e) which states: “Any waiver by a tenant of rights under this Chapter 37 shall be void as contrary to public policy.” ROCHELLE ETAL. V, DENG ET AL. - TRIAL BRIEF OF PLAINTIFFS 2Premises, since Defendants had been so adamant as to the importance of having Defendant Tan live in the same building as Defendants. It was not until October 2016 that Ms. Rochelle discovered through a third party news reporter from NBC that Defendant Tan was not living at the Subject Premises. This was the first time Plaintiff had any suspicion that Defendants had violated the law or been untruthful about the eviction. Had Ms. Rochelle known that Defendant Tan was not going to move into the Subject Premises, she would not have given up her rent-controlled unit and family home. Plaintiff filed the present Complaint on December 8, 2016 for Negligence, Breach of Quiet Enjoyment, Violations of the San Francisco Rent Ordinance (“SFRO”), Intentional Infliction of Emotional Distress, Negligent Misrepresentation, Intentional Misrepresentation, Rescission, and Common Law Wrongful Eviction. I. LEGAL ARGUMENT A. Plaintiff’s Claims Plaintiff's claims center around the fact that Defendants served a Relative move-in eviction on Plaintiff, which claimed that Defendant Tan was moving into the property and that she would live there for 36 months. Those representations were false. It is undisputed that Defendant Tan did not move into the property and instead, Defendant Trevor Deng renovated the unit and re-rented it at a greatly increased rent. Facts will also establish that Defendant Tan had no plans to move to the property and the eviction was based on a fraud. Those facts establish that Defendants wrongfully evicted Plaintiff and violated the SFRO. Plaintiffs seek damages for the loss of their rent controlled unit, emotion distress, and punitive damages. Defendants will claim a one page document signed on June 25, 2014 absolves them of any obligations under the Relative move-in eviction and that the same document provides a full defense to the case. Plaintiff claims the one page document signed on June 25, 2014 was entered into based on a false representation and that it was signed pursuant to undue pressure. Plaintiff is seeking to have the one page document excluded as it is void, against public policy, and the document should also be rescinded due to fraud and other legal arguments. Plaintiff has filed motions in limine addressing these legal issues. ROCHELLE ETAL. V. DENG ET AL. - TRIAL BRIEF OF PLAINTIFFS 3B. Defendants Claimed Defenses Fail First, almost all the arguments in Defendants' trial brief are arguments that Defendants at- tempted to make in their Motion for Summary Judgment, which was denied by the court on October 16, 2017. Defendants also make various requests in their trial brief, which is improper as a trial brief is not a motion and therefore the requests cannot be granted. Plaintiff responds to Defendants' arguments as follows: 1. Plaintiff’s Claims Are Not Barred By the Statute of Limitations Under the Code of Civil Procedure, the statute of limitations for an action upon any contract is four years. (CCP § 337) Here, Ms. Rochelle signed a written lease when she moved into the Subject Premises. This lease constitutes a written contract, any accordingly any action for a breach of this contract (breach of quiet enjoyment, wrongful eviction) has a four year statute of limitations. (CCP § 337) Plaintiff’s third cause of action is for breach of quiet enjoyment, a covenant that is implied in every rental agreement. Plaintiff moved out of the Subject Premises on July 8, 2014 and the complaint was filed on December 6, 2016. Since at least this cause of action has a four year statute of limitations, Defendants is incorrect in arguing that Plaintiff’s entire action is barred. Additionally, under the delayed discovery rule, which Plaintiff has pleaded, the statute of limitations period does not begin to run until a plaintiff discovers or could have discovered through the exercise of reasonable diligence all facts essential to his or her cause of action. (See Leafv. City of San Mateo (1980) 104 Cal.App.3d 398, 407.) Here, Plaintiff did not discover that Defendant Tan had not moved into the Subject Premises until October 2016, when a reporter from NBC contacted Ms. Rochelle, alerting her to the fact that there were new tenants in her unit. Thus, the statute of limitations period did not begin to run until October 2016, and all of Plaintiff’s claims are timely. Defendants argue that tolling does not apply here, claiming that Plaintiff was obligated to have inquired or investigated whether Defendant Tan had moved in, at an earlier time. However, this misstates the obligations under the delayed discovery rule, as Plaintiff had no reason to suspect ROCHELLE ET AL. V. DENG ET AL. — TRIAL BRIEF OF PLAINTIFFS 4that Defendants had performed a fraudulent relative move-in eviction, until the NBC reporter contacted Ms. Rochelle. “(U]nder the delayed discovery rule, a cause of action accrues and the statute of limitations begins to run when the plaintiff has reason to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time would not have revealed a factual basis for that particular cause of action.” (Fox v. Ethicon Endo-Surgery (2005) 35 Cal.4th 797, 803 (emphasis added).) Aplaintiff's duty to inquire only arises when “the plaintiff becomes aware of facts that would cause a reasonably prudent person to suspect his injuries were the result of a wrongdoing. If the plaintiff was in possession of such facts...it must next be determined whether 'such an investigation would have disclosed a factual basis for a cause of action.” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1251, internal citation omitted.) Here, Defendants immediately jump to the second prong under the delayed discovery rule as to whether an investigation would have disclosed that Defendant Tan did not move into the Subject Premises. However, before October 2016, Plaintiff was not in possession of any facts that which would have given her any reason to suspect that Defendant Tan had not moved into her unit. Trevor Deng repeatedly represented to Ms. Rochelle that his mother would be moving into her unit, and Ms. Rochelle had no reason to suspect otherwise, thus there was no trigger to investigate. The statute of limitations thus, did not begin to run until October 2016, when Plaintiff discovered that Defendant Tan did not move into the Subject Premises, in violation of the law. Finally, the full and correct language of CACI 455 is the following: If defendant proves that plaintiff's claimed harm occurred before [insert date from applicable statute of limitations], plaintiff's lawsuit was still filed on time if of plaintiff proves that before that date Plaintiff did not discover, and did not know of facts that would have caused a reasonable _ person to suspect that she had suffered harm that was caused by someone's wrongful conduct. [or] ROCHELLE ET AL. V. DENG ET AL. ~ TRIAL BRIEF OF PLAINTIFFS 5Plaintiff did not discovery, and a reasonable and diligent investigation would not have disclosed that [specify factual basis for caused of action] contributed to Plaintiff's harm. Defendants will seek to have only the second option read to the jury, which is incorrect. The law states that a two-part analysis is used to assess when a claim has accrued under the discovery rule. The initial step focuses on whether the plaintiff possessed information that would cause a reasonable person to inquire into the cause of his injuries. Under California law, the inquiry duty arises only when the plaintiff becomes aware of facts that would cause a reasonably prudent person to suspect his injuries were the result of wrongdoing. If the plaintiff was in possession of such facts, thereby triggering his duty to investigate, it must next be determined whether ‘such an investigation would have disclosed a factual basis for a cause of action[.] [T]he statute of limitations begins to run on that cause of action when the investigation would have brought such information to light.’ ” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1251, internal citation omitted.) Plaintiff in this case was not “aware of facts that would cause a reasonably prudent person to suspect his injuries were the result of wrongdoing so there was no duty to investigate”. Therefore, the Defendants are incorrect and only first option of the jury instruction must be read to the Jury. 2. The One-Page Document is Void, or Subject to Rescission, and in No Way can, by its Own Language, Serve as a Defense to this Case It is first noted that the one page document is void. and Plaintiff has filed a motion in limine requesting the document be excluded as such. Secondly, Plaintiff's claims for rescission is proper and if granted, the one page document would not cause any of Plaintiff's causes of action to fail. First, the one page document is void under San Francisco Rent Ordinance section 37.9(e) which states: “Any waiver by a tenant of rights under this Chapter 37 shall be void as contrary to public policy.” Here, the subject move out document contains the following unenforceable language, which makes any agreement void: “Should tenant Angelique Rochelle fail to timely vacate the subject premise on or before July 25"", 2014, tenant understands and acknowledge that she must refund the full $25,000 immediately and a lawsuit shall be immediately filed to effect the summary removal therefrom.” ROCHELLE ET AL. V. DENG ET AL. - TRIAL BRIEF OF PLAINTIFFS 6The penalty of having to return the entire relocation amount, and having an eviction lawsuit filed against Plaintiff bears no reasonable relationship to the range of actual damages that the parties could have anticipated would flow from a breach. (Ridgley v. Topa Thrift & Loan Assn.(1998) 17 Cal.4th 970, 977.) In fact, if Angelique failed to move out by July 25, 2014, she would not have to give her relocation monies back to Defendant, because Defendant was legally obligated to pay relocation monies under the RMI notice served on June 13, 2014. Ms. Rochelle and her family were owed this relocation money under section 37.9(a)(8) of the Rent Ordinance, pursuant to the requirements under a no-fault eviction. Even if Plaintiff was to be evicted for having not moved pursuant to the RMI notice, they were legally entitled to relocation monies under the Rent Ordinance. Therefore, the clause above is void where Plaintiff was not obligated to return the money under any circumstances. (See also Fox Chicago Realty Corp. v. Zukor’s Dresses (App. 2 Dist. 1942) 50 Cal.App.2d 129.) Having to return the money constitutes a waiver of Plaintiff's rights under the Rent Ordinance, which requires that Plaintiff be paid relocation expenses if they are evicted due to an RMI. (Rent Ordinance section 37.9(e) states that “Any waiver by a tenant of rights under this Chapter 37 shall be void as contrary to public policy.”) Further, a clause requiring such relocation money to be forfeited, and losing possession of the unit, equates to an improper liquidated damages clause and therefore renders the agreement void. Defendants used of the move out document to attempt to have Plaintiff waive her rights to mandated relocation expenses; such a waiver is expressly void under the rent ordinance. Thus, the entire move out document is based on unlawful clauses that are contrary to public policy. Additionally, the language “a lawsuit shall be immediately filed to effect the summary removal therefrom” is not based on any legal authority. This move out document is not an unlawful detainer settlement agreement. Plaintiff was already being evicted pursuant to an RMI eviction and the move out document does nothing to waive the RMI obligations or Plaintiffs ROCHELLE ET AL. V. DENG ET AL. —- TRIAL BRIEF OF PLAINTIFFS 727 28 rights under the Rent Ordinance. Further, such a waiver of eviction protections is void under Rent Ordinance section 37.9e). For the foregoing reasons, the move out document constitutes an improper penalty that is not related to any range of actual damages, and an improper waiver of tenant rights. The entire document should be excluded at trial. If the one page document is not excluded, Plaintiff's action still does not fail as this document merely confirmed the date of Plaintiffs move out. This document did not contain a provision as to any waiver of rights. nor does it indicate the Defendants' relative move-in eviction is canceled. There is no language whatsoever releasing Defendants from their obligations under the Rent Ordinance and the Defendants never rescinded the RMI notice, had it canceled, or informed Plaintiff (written or orally) that the RMI notice was canceled or rescinded. There is nothing in writing that Defendants no longer had any obligations. Therefore, based on the Rent Ordinance and the express language of the document, which the Defendant's drafted, the document cannot stand for what Defendants claim. Defendants will argue that Plaintiff was paid money in connection with the one page document; however, it is undisputed that Defendants were obligated to pay Plaintiff relocation fees under the no-fault eviction provisions of the Rent Ordinance, so the $25,000 did not constitute any additional consideration, beyond what Plaintiff was entitled to already. (See SFRO § 37.9(a)(8).) The $25,000 included Plaintiff's security deposit and the mandated relocation payments for Ms. Rochelle and 3 minors, some of whom had disabilities; the total was thus equivalent to what Plaintiff was owed under the Rent Ordinance. The one-page document then, cannot bar any of Plaintiff's present claims, as Defendants performed a wrongful and fraudulent relative move-in by not complying with the law after Plaintiff vacated. In any event, Plaintiff seeks to rescind the one page document based on the fraudulent representations that Defendants made, about Defendant Tan moving in. 3. The One Page Document is Void and No Contract Exists Based on Defendants’ Wrongful and Fraudulent Conduct There is ample authority to support rescission in this case. First, a contract may be rescinded ROCHELLE ET AL. V. DENG ET AL. — TRIAL BRIEF OF PLAINTIFFS 8if the consent of the party rescinding was given through duress or undue influence. (Civil Code § 1689(b)(1).) Undue influence consists of “taking an unfair advantage of another's weakness of mind” or “taking a grossly oppressive and unfair advantage of another's necessities or distress.” (Civil Code § 1575) Some of the factual elements to be considered in finding undue influence include “(1) discussion of the transaction at an unusual or inappropriate time, (2) consummation of the transaction in an unusual place, (3) insistent demand that the business be finished at once, (4) extreme emphasis on untoward consequences of delay, (5) the use of multiple persuaders by the dominant side against a single servient party, (6) absence of third-party advisers to the servient party, (7) statements that there is no time to consult financial advisers or attorneys.” (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 132.) Here, the elements for undue influence have been met. Ms. Rochelle was under a significant amount of pressure at the time she signed the one-page document, as Defendants had previously attempted to evict her from the Subject Premises, and then represented that Defendant's mother would be moving into the unit. Defendant Trevor Deng presented Ms. Rochelle with this one-page document in her living room, and stated that they had to sign his version, despite Ms. Rochelle having prepared her own move-out confirmation draft. Ms. Rochelle was only afforded a few minutes to review the document and did so while Defendant stood over her shoulder. Defendant took advantage of his position as landlord, and forced Plaintiff to vacate the Subject Premises based on a false representation. Second, CACI 335 sets out the requirements for voiding or canceling of a contract based on fraud, which states the following: Plaintiff claims that no contract was created because her consent was obtained by fraud. To succeed, Plaintiff must prove all of the following: 1. That Defendants represented that [insert alleged fraudulent statement]; 2. That Defendants knew that the representation was not true; 3. That Defendants made the representation to persuade Plaintiff to agree to the contract; 4. That Plaintiff reasonably relied on this representation; ROCHELLE ETAL. V. DENG ET AL. — TRIAL BRIEF OF PLAINTIFFS 9and 5. That Plaintiff would not have entered into the contract if [he/she/it] had known that the representation was not true. If you decide that [name of defendant] has proved all of the above, then no contract was created. Here, Plaintiff meets the requirements of the above CACI section. as the only reason why Ms. Rochelle agreed to a move out date was because she reasonably relied on Defendants’ representation that Defendant Tan would be moving into the Subject Premises. This representation was false, as Defendants immediately renovated the Subject Premises, and re-rented it to third parties for $4,500/month, after Plaintiffs moved out. Defendants incorrectly argue that rescission is not available under the law for various reasons including lack of proper notice and delay in the return of the funds. First, notice in this case was proper where a plaintiff's service of the complaint seeking rescission "shall be deemed to be" the requisite notice. (Civil Code § 1691 (emphasis added)). Thereafter, the rescinding party is entitled to bring an action to obtain relief based upon the rescission (or, viewed another way, an action to enforce the rescission). (Id.) Here, Defendants' own papers confirm that Plaintiff has satisfied the elements for rescission. First, notice of rescission was given to Defendants when Plaintiff filed the original Complaint on December 8, 2016, which contains a cause of action (ninth) for rescission. Second, restoration of the $25,000 given to Plaintiff by Defendants can be delayed until judgment, as Plaintiff has spent the monies on relocating. Next, as to the return of the funds, it is proper to delay the return until a judgment is rendered where restoration is impossible because settlement or other monies have been spent. The financially constrained parties can turn to Civil Code section 1693 to delay restoration until judgment, unless the defendants can show substantial prejudice. (Village Northridge Homeowners Ass‘n v. State Farm Fire and Cas. Co. (2010) 50 Cal.4th 913, 931.) A claim for rescission is not barred by a plaintiff who acknowledged the restoration requirement, but alleged that she could not satisfy that requirement because, after defendants had paid her a sum of money, she had spent the money on medical expenses. (/d. At 923.) ROCHELLE ET AL. V, DENG ET AL. —- TRIAL BRIEF OF PLAINTIFFS 10Plaintiff has adequately claimed she spent the money, thus justifying the delay. Additionally, Defendants have not been substantially prejudiced, as the $25,000 amount given to Plaintiff by Defendants was approximately the exact amount owed to Plaintiff by Defendants as the tenants! relocation expenses for a no-fault eviction under Section 37.9C(2)(e) of the Rent Ordinance. Defendants are therefore not prejudiced in paying Plaintiff this amount, since they would have been required to pay this amount or more, in order for Plaintiff to be displaced regardless of the one page document. Nor have Defendants been prejudiced in not having gone forward with an unlawful detainer action, as Defendants never actually planned to have Defendant Tan move into the Subject Premises, and therefore had no legitimate basis under the Rent Ordinance to evict Plaintiffs. Therefore, Plaintiff s rescission claim is allowed and proper where there was adequate notice in the complaint and delayed restoration is permitted under Civil Code § 1693. Lastly, contrary to Defendants’ arguments, the litigation privilege does not bar Plaintiff from a claim of rescission, as even notices of eviction can be proper evidence of a landlord's wrongful acts, as further explained below. To hold otherwise would enable landlords to perform improper or fraudulent evictions, and then simply shield themselves from all liability by asserting that the eviction notice is protected by the litigation privilege. 4. The Litigation Privilege Does Not Bar Evidence of Wrongdoing by the Landlord, and The Eviction Notice is Proper Evidence of This Wrongdoing Defendants attempt to shield all evidence of wrongdoing by claiming that Plaintiff’s action is barred by the litigation privilege. This is incorrect, as otherwise every wrongful eviction action would be barred, simply because the landlord previously served an eviction notice. First, the gravamen of Plaintiff’s action does not center around Defendants' service of an eviction notice, but around “Defendant's wrongful termination of Plaintiffs’ tenancy” and violation of the Rent Ordinance, which includes evidence of renovations and the re-rental of the Subject Premises, when there was an obligation for Defendant to move in. These wrongful acts are not protected activities, In Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1287, under a similar factual situation as the present case, the court found that “terminating a tenancy or removing a property from the ROCHELLE ET AL. V. DENG ET AL. — TRIAL BRIEF OF PLAINTIFFS 11rental market are not activities taken in furtherance of the constitutional rights of petition or free speech.” (emphasis added.) The court further explained that the plaintiff's complaint was “not premised on [Defendant's] protected activities of initiating or prosecuting the unlawful detainer action, but on her removal of the apartment from the rental market and fraudulent eviction of [Plaintiff] for the purpose of installing a family member who never moved in. (/d.) Moreover, courts have consistently held that even notices of eviction can still be proper evidence of a landlord's wrongful acts, as they evidence the improper termination of the tenancy. And merely because the service of an eviction notice “preceded the filing of plaintiff's operative complaint, or even triggered the filing of plaintiff's complaint, does not compel the conclusion that her complaint is based on [defendant's] service of the notice of termination...” (Ulkarim v, Westfield LLC (2014) 227 Cal.App.4th 1266, 1275.) The court in Ulkarim concluded “a tenant's complaint against a landlord filed after the service of a notice of termination and the filing of a complaint for unlawful detainer does not arise from those particular activities if the gravamen of the tenant's complaint challenges the decision to terminate the tenancy or other conduct in connection with the termination apart from the service of a notice of termination or filing of an unlawful detainer complaint.” (/d. at 1279.) Notably, the court in Ulkarim went onto hold that it “decline[s] to follow Birkner, supra, 156 Cal.App.4" 275...and Felman v. 1100 Park Lane Associates (2009) 160 Cal.App.4th 1467... to the extent that those opinions suggest a different rule.” (/d.) Here, Plaintiffs' suit was not based on Defendants’ mere service of an eviction notice, but on Defendants' wrongful conduct in fraudulently inducing Plaintiffs to give up their tenancy, and thereafter not moving Defendant Tan into the Subject Premises. The gravamen of Plaintiffs’ action is centered around Defendants’ fraudulent relative move-in eviction, and failures to thereafter comply with the law. Plaintiffs' claims are not based on the service of the notice itself, and are thus not barred by the litigation privilege. Additionally, litigation privilege does not apply in this case as there was no pending litigation. The critical point is that the mere potential or “bare possibility” that judicial proceedings “might be instituted” in the future is insufficient to invoke the litigation privilege. (Edwards v. ROCHELLE ET AL. V. DENG ET AL. - TRIAL BRIEF OF PLAINTIFFS 12Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 36.) In every case, the privileged communication must have some relation to an imminent lawsuit or judicial proceeding which is contemplated seriously and in good faith to resolve a dispute, and not simply as a tactical ploy to negotiate a bargain. (Id. emphasis added.) A threat to file a lawsuit would be insufficient to activate the privilege if the threat is merely a negotiating tactic and not a serious proposal made in good faith contemplation of going to court. (Id. at 35) In this case there was no lawsuit. And the Defendants were not instituting a lawsuit — therefore the litigation privilege does not apply. (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 36.) Even if there were threats to file a lawsuit, those were merely negotiation tactics, and do not trigger the privilege. (Id.) Defendants do not have any facts that show that any lawsuit was pending. And under the Ulkarim case, the notice of eviction is proper evidence of the wrongful eviction, and not privileged. Additionally, Defendants fail to cite the relevant law, and have no facts showing that there is privileged conduct. Therefore, litigation privilege does not apply, and Defendants should be precluded from making any such argument concerning that privilege. 5. Rescission Should Be Decided By the Jury As it Involves Questions of Fact As explained above, Plaintiff seeks to rescind the one-page document based on fraud and undue influence. These are dependent on the determination of triable issues of fact that the jury should decide, after being empaneled. First, Plaintiff seeks to prove fraud, which is always tried to a jury. Actual fraud is always a question of fact. (Civ. Code, § 1574) Whether releases of personal injury claims were obtained by fraud was jury question, where evidence thereon was conflicting. Mairo v. Yellow Cab Co. of California (1929) 208 Cal. 350, 281. Therefore, where the issue of fraud and whether the contract exists, or is to be rescinded in a question for the jury. Additionally, the question of undue influence is decided as a question of fact, as “direct evidence of undue influence is rarely obtainable and, thus the court is normally relegated to determination by inference from the totality of facts and circumstances. Indeed, there are no fixed definitions or inflexible formulas.” (Keithley v. Civil Service Bd. of the City of Oakland (1970) 11 ROCHELLE ET AL. V. DENG ET AL. - TRIAL BRIEF OF PLAINTIFFS 1327 28 Cal.App.3d 443, 451, internal citations omitted.) The inquiry centers around “whether from the entire context it appears that one’s will was overborne and he was induced to do or forbear to do an act which he would not do, or would do, if left to act freely.” (/d.) As the role of the jury is to act as the trier of fact and fraud and rescission are based upon undue influence and Defendants’ misstatements and concealment, a jury trial should proceed on the claim of rescission. (See Evid. Code § 312(a).) 6. Plaintiff is Entitled to an Award of Punitive Damages The evidence has shown that Defendants' actions were malicious and oppressive where Defendants fraudulently recovered possession of the Subject Premises with ulterior motives and dishonest intent. Defendant's actions were malicious and oppressive as they intended to, or consciously disregarded the probability that, their actions would cause, and were causing Plaintiff to suffer severe emotional distress because of being evicted from her home of ten years. Plaintiff is therefore entitled to award of punitive damages and will seek such. Ill. CONCLUSION Defendants acted wrongfully where they falsely represented to Plaintiff that Defendant Tan would be moving into the Subject Premises, which was untrue and did not occur. Defendants’ real intent and plan was to displace Plaintiff from her rent-controlled unit, so that Defendants could renovate and re-rent the Subject Premises for substantially higher rent profits. Plaintiff was wrongfully displaced as a result, lost a rent controlled unit, and their family was split apart. Plaintiff's claims are not barred by the statute of limitations nor the litigation privilege and therefore Plaintiffs are entitled to damages in this case. Dated: November 14, 2017 Respectfully Submitted, HOOSHMAND LAW GROU! Jenny Jin, Esq. Attorney for Plaintiffs ROCHELLE ET AL. V. DENG ET AL. - TRIAL BRIEF OF PLAINTIFFS 14