Preview
27
28
Mark Hooshmand, Esq. (SBN 194878)
Tyson Redenbarger, Esq. (SBN 294424)
Jenny Jin, Esq. (SBN 296184)
Hooshmand Law Group
22 Battery St., Ste. 610
San Francisco, CA 94111
Tel: (415) 318-5709
Fax: (415) 376-5897
ELECTRONICALLY
FILED
Superior Court of Catifornia,
County of San Francisco
11/14/2017
Clerk of the Court
BY: SANDRA SCHIRO
Deputy Clerk
Attorneys for Plaintiffs Angelique Rochelle, individually
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 CIVL JURSIDICTION
ANGELIQUE ROCHELLE, individually
and as Guardian ad litem of ELLA
LAWTON and LEONA PASLAY and BAZ
ROCHELLE individually
Plaintiffs,
vs.
TREVOR DENG, MAY DENG, YU TAO
TAN and DOES 1 TO 10,
Defendants.
CASE NO.:CGC-16-555761
PLAINTIFFS’ NOTICE OF MOTION AND
MOTION IN LIMINE NO. 8 TO EXLUDE
ONE-PAGE DOCUMENT FROM JUNE 2014
BASED ON PENALTY CLAUSE
Date: | November 13, 2017
Time: 9:30 am
Dept: 206
PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIMINE NO. 8 TO EXLUDE ONE-
SSS SSS Sewers
PAGE DOCUMENT FROM JUNE 2014 BASED ON PENALTY CLAUSE
PLAINTIFFS’ NOTICE OF MOTION AND MOTION IN LIMINE NO. 8 TO EXCLUDE ONE-PAGE DOCUMENT FROM
JUNE 2014 1To Defendants Trevor Deng, May Deng, and Yu Yao Tan, and Defendants’ counsel of
record:
PLEASE TAKE NOTICE that on November 13, 2017, at 9:30 a.m., or as soon thereafter as
the matter may be heard in Department 206 of the Superior Court of California, County of San
Francisco, located at 400 McAllister Street, San Francisco, CA 94102, Plaintiffs' motion in limine
no. 8 will be heard.
The Motion is based on the files in these matters and this Motion in Limine, and evidence
to be presented at the hearing of Plaintiffs’ motion.
Date: November 8, 2017 Respectfully submitted,
HOOSHMAND LAW GROUP
Jenny Jin, Esq.
Attorney for Plaintiffs
PLAINTIFFS’ NOTICE OF MOTION AND MOTION IN LIMINE NO. 8 TO EXCLUDE ONE-PAGE DOCUMENT FROM
SUNE 2014 2I. INTRODUCTION
In the matter of Rochelle, et al. v. Deng, et al., CGC-16-555761, Plaintiffs move for an
order preventing Defendants from introducing the one-page move out document from June 2014,
on the basis that it is void as it improperly waived Plaintiffs’ rights in violation of the San
Francisco Rent Ordinance.
Il. STATEMENT OF FACTS
Plaintiffs are former tenants of a rent-controlled unit located at 778 25" Avenue, San
Francisco, California (“Subject Premises”). Plaintiff Angelique Rochelle moved into the Subject
Premises in November 2003, and had resided there with her three children, Plaintiffs 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 of the
subject building shortly after.
On June 13, 2014, Defendants served Plaintiffs with a relative move-in (“RMI”) eviction,
and represented to Plaintiffs that Trevor Deng's mother, Defendant Tan, would be moving into the
Subject Premises. Based on this representation, Plaintiffs searched for, and found a new rental in
Oakland and signed a lease. Once that occurred Plaintiff Angelique indicated to Defendant Trevor
Deng that she had found a place to move, and the date she could vacate by. The parties agreed to
put the move out date and the amount of relocation money in writing and met on June 25, 2014 to
finalize.
The document signed by the parties on June 25, 2014 was created by Defendant Trevor
Deng, and included Ms. Rochelle's move out date and relocation costs. A copy of this document is
attached as Exhibit A. The third paragraph of this document contains the following language:
“Should tenant Angelique Rochelle fail to timely vacate the subject premise on or
before July 25th 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.”
Plaintiffs moved out of the Subject Premises on July 8, 2014, based on the representation
PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIMINE NO. 8 TO EXCLUDE ONE-PAGE DOCUMENT FROM
JUNE 2014 3that Trevor Deng's mother was moving to Plaintiffs' unit. Plaintiff Angelique Rochelle moved to a
smaller unit in Oakland, and as a result, was no longer able to live with all three of her children.
Ii. LEGALARGUMENT
A. The Move Out Document Contains ai le Liquidated Damages Clause.
and is thus Void, and Should Therefore the Document Should be Excluded
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.” In this instance, the Defendant
forced the Plaintiff to waive her rights under the Rent Ordinance since she would have to return
the monies and still] move out of her apartment. Having to return the money constitutes a waiver
of Plaintiffs' rights under the Rent Ordinance, which requires that Plaintiffs be paid relocation
expenses if they are evicted due to an RMI.
In addition, “a liquidated damages clause will generally be considered unreasonable, and
hence unenforceable under section 1671(b), if it 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.)
A provision of a lease which obligates lessee to pay specified sum upon default in
performance of any covenant of lease is void. (Fox Chicago Realty Corp. v. Zukor's Dresses
(App. 2 Dist. 1942) 50 Cal.App.2d 129.) Moreover, the question of whether a contractual
provision is an unenforceable liquidated damages provision is one for the court. (Beasley v.
Wells Fargo Bank (1991) 235 Cal.App.3d 1383, 1393, 1 Cal.Rptr.2d 446 (Beasley ).)
Here, the subject move out document (Exhibit A) 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 25th 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.”
PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIMINE NO. 8 TO EXCLUDE ONE-PAGE DOCUMENT FROM
JUNE 2014 4The penalty of having to return the entire relocation amount, and also 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, supra, at p. 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.
The clause above is therefore void where Plaintiffs were not obligated to return the
money. (See also Fox Chicago Realty Corp, supra.) Even if Plaintiffs were to be evicted for
having not moved pursuant to the RMI notice, they were legally entitled to relocation monies
under the Rent Ordinance. A clause requiring such relocation money to be returned equates to
an improper liquidated damages clause and therefore renders the agreement void.
Defendants used of the move out document to attempt to have Plaintiffs waive their
rights to moving expenses, which is void under the rent ordinance. Thus the entire move out
document is based on unlawful clauses that are contrary to public policy. Therefore the entire
document is void.
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. Plaintiffs were already being evicted pursuant to an
RMI eviction and the move out document does nothing to waive the RMI obligations or
Plaintiffs rights under the Rent Ordinance. Further, such a waiver of eviction protections is void
under Rent Ordinance section 37.9(e).
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.
IV. CONCLUSION
Plaintiffs request that the Court exclude the introduction of the one-page move out
PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIMINE NO, 8 TO EXCLUDE ONE-PAGE DOCUMENT FROM.
JUNE 2014 5document from June 2014, as includes an improper penalty clause and waiver of a tenant's rights.
The agreement directly violates public policy and demonstrates how the Defendant used his
superior leverage to force the Plaintiff to give up her rights to her home and to the monies she was
obligated to receive under the San Francisco Rent Ordinance.
Dated: November 8, 2017 Respectfully Submitted,
HOOSHMAND LAW GROUP
Jenny Jin, Bh. i
Attorney for Plaintiffs
PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIMINE NO. 8 TO EXCLUDE ONE-PAGE DOCUMENT FROM
JUNE 2014 6EXHIBIT A
PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIMINE NO. 8 TO EXCLUDE ONE-PAGE DOCUMENT FROM
JUNE 2014 7Agreement to End Lease on Subject Property: 778 25" Avenue, San Francisco, California 94121.
Tenants Angelique Rochelle and all remaining tenants (al! children and others) acknowledge and desires
to voluntarily surrender and permanently terminates tenancy and current and/or future right of
occupancy by moving out of the subject premise 02 July 8th, 2014, at subject premise at 778 ast
Avenue, San Francisco, California 94121,
Landlord Trevor Chu Hua Deng and May Geng will provide compensation exactly $25,000 to terminate
tenancy by Angelique Rochelle. $12,500 (Cashier's Check) will be provided to Angelique Rochelle on
signing this agreement and the remainder of $12,500 will be provided at receiving the keys and garage
keys to 778 25" Avenue, along with property inspection, cleaning subject property and vacating the unit
fully by July 8". This $25,000 amount includes refund of the security deposit and any interest owed,
along with any additional cost involved in surrendering the premise property.
Should tenant Angelique Rochelle fail to timely vacate the subject premise on or before July 38”, 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.
This agreement is freely and voluntarily entered into by the parties. The parties hereto represent,
declare, admit and warrant'that in executing this Agreement they relied solely upon their own
judgment, and knowledge and the advice that was obtained by independent counsel.
Any and all personal possessions or other personal property remaining on the premises after tenant
cacates are hereby declared abandoned and of no value ‘Landlord may dispose of said property as they
see fit. i Peer
ft teeta s
iu he vate W2S / 2014
Angelique Rochelle
- LCN
ak pated: 46/235 / faa
Trevor Chu Hug Dérig 7
f
Dated: bias , 2014
May Deng
Preview
27 28 Mark Hooshmand, Esq. (SBN 194878) Tyson Redenbarger, Esq. (SBN 294424) Jenny Jin, Esq. (SBN 296184) Hooshmand Law Group 22 Battery St., Ste. 610 San Francisco, CA 94111 Tel: (415) 318-5709 Fax: (415) 376-5897 ELECTRONICALLY FILED Superior Court of Catifornia, County of San Francisco 11/14/2017 Clerk of the Court BY: SANDRA SCHIRO Deputy Clerk Attorneys for Plaintiffs Angelique Rochelle, individually 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 CIVL JURSIDICTION ANGELIQUE ROCHELLE, individually and as Guardian ad litem of ELLA LAWTON and LEONA PASLAY and BAZ ROCHELLE individually Plaintiffs, vs. TREVOR DENG, MAY DENG, YU TAO TAN and DOES 1 TO 10, Defendants. CASE NO.:CGC-16-555761 PLAINTIFFS’ NOTICE OF MOTION AND MOTION IN LIMINE NO. 8 TO EXLUDE ONE-PAGE DOCUMENT FROM JUNE 2014 BASED ON PENALTY CLAUSE Date: | November 13, 2017 Time: 9:30 am Dept: 206 PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIMINE NO. 8 TO EXLUDE ONE- SSS SSS Sewers PAGE DOCUMENT FROM JUNE 2014 BASED ON PENALTY CLAUSE PLAINTIFFS’ NOTICE OF MOTION AND MOTION IN LIMINE NO. 8 TO EXCLUDE ONE-PAGE DOCUMENT FROM JUNE 2014 1To Defendants Trevor Deng, May Deng, and Yu Yao Tan, and Defendants’ counsel of record: PLEASE TAKE NOTICE that on November 13, 2017, at 9:30 a.m., or as soon thereafter as the matter may be heard in Department 206 of the Superior Court of California, County of San Francisco, located at 400 McAllister Street, San Francisco, CA 94102, Plaintiffs' motion in limine no. 8 will be heard. The Motion is based on the files in these matters and this Motion in Limine, and evidence to be presented at the hearing of Plaintiffs’ motion. Date: November 8, 2017 Respectfully submitted, HOOSHMAND LAW GROUP Jenny Jin, Esq. Attorney for Plaintiffs PLAINTIFFS’ NOTICE OF MOTION AND MOTION IN LIMINE NO. 8 TO EXCLUDE ONE-PAGE DOCUMENT FROM SUNE 2014 2I. INTRODUCTION In the matter of Rochelle, et al. v. Deng, et al., CGC-16-555761, Plaintiffs move for an order preventing Defendants from introducing the one-page move out document from June 2014, on the basis that it is void as it improperly waived Plaintiffs’ rights in violation of the San Francisco Rent Ordinance. Il. STATEMENT OF FACTS Plaintiffs are former tenants of a rent-controlled unit located at 778 25" Avenue, San Francisco, California (“Subject Premises”). Plaintiff Angelique Rochelle moved into the Subject Premises in November 2003, and had resided there with her three children, Plaintiffs 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 of the subject building shortly after. On June 13, 2014, Defendants served Plaintiffs with a relative move-in (“RMI”) eviction, and represented to Plaintiffs that Trevor Deng's mother, Defendant Tan, would be moving into the Subject Premises. Based on this representation, Plaintiffs searched for, and found a new rental in Oakland and signed a lease. Once that occurred Plaintiff Angelique indicated to Defendant Trevor Deng that she had found a place to move, and the date she could vacate by. The parties agreed to put the move out date and the amount of relocation money in writing and met on June 25, 2014 to finalize. The document signed by the parties on June 25, 2014 was created by Defendant Trevor Deng, and included Ms. Rochelle's move out date and relocation costs. A copy of this document is attached as Exhibit A. The third paragraph of this document contains the following language: “Should tenant Angelique Rochelle fail to timely vacate the subject premise on or before July 25th 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.” Plaintiffs moved out of the Subject Premises on July 8, 2014, based on the representation PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIMINE NO. 8 TO EXCLUDE ONE-PAGE DOCUMENT FROM JUNE 2014 3that Trevor Deng's mother was moving to Plaintiffs' unit. Plaintiff Angelique Rochelle moved to a smaller unit in Oakland, and as a result, was no longer able to live with all three of her children. Ii. LEGALARGUMENT A. The Move Out Document Contains ai le Liquidated Damages Clause. and is thus Void, and Should Therefore the Document Should be Excluded 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.” In this instance, the Defendant forced the Plaintiff to waive her rights under the Rent Ordinance since she would have to return the monies and still] move out of her apartment. Having to return the money constitutes a waiver of Plaintiffs' rights under the Rent Ordinance, which requires that Plaintiffs be paid relocation expenses if they are evicted due to an RMI. In addition, “a liquidated damages clause will generally be considered unreasonable, and hence unenforceable under section 1671(b), if it 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.) A provision of a lease which obligates lessee to pay specified sum upon default in performance of any covenant of lease is void. (Fox Chicago Realty Corp. v. Zukor's Dresses (App. 2 Dist. 1942) 50 Cal.App.2d 129.) Moreover, the question of whether a contractual provision is an unenforceable liquidated damages provision is one for the court. (Beasley v. Wells Fargo Bank (1991) 235 Cal.App.3d 1383, 1393, 1 Cal.Rptr.2d 446 (Beasley ).) Here, the subject move out document (Exhibit A) 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 25th 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.” PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIMINE NO. 8 TO EXCLUDE ONE-PAGE DOCUMENT FROM JUNE 2014 4The penalty of having to return the entire relocation amount, and also 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, supra, at p. 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. The clause above is therefore void where Plaintiffs were not obligated to return the money. (See also Fox Chicago Realty Corp, supra.) Even if Plaintiffs were to be evicted for having not moved pursuant to the RMI notice, they were legally entitled to relocation monies under the Rent Ordinance. A clause requiring such relocation money to be returned equates to an improper liquidated damages clause and therefore renders the agreement void. Defendants used of the move out document to attempt to have Plaintiffs waive their rights to moving expenses, which is void under the rent ordinance. Thus the entire move out document is based on unlawful clauses that are contrary to public policy. Therefore the entire document is void. 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. Plaintiffs were already being evicted pursuant to an RMI eviction and the move out document does nothing to waive the RMI obligations or Plaintiffs rights under the Rent Ordinance. Further, such a waiver of eviction protections is void under Rent Ordinance section 37.9(e). 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. IV. CONCLUSION Plaintiffs request that the Court exclude the introduction of the one-page move out PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIMINE NO, 8 TO EXCLUDE ONE-PAGE DOCUMENT FROM. JUNE 2014 5document from June 2014, as includes an improper penalty clause and waiver of a tenant's rights. The agreement directly violates public policy and demonstrates how the Defendant used his superior leverage to force the Plaintiff to give up her rights to her home and to the monies she was obligated to receive under the San Francisco Rent Ordinance. Dated: November 8, 2017 Respectfully Submitted, HOOSHMAND LAW GROUP Jenny Jin, Bh. i Attorney for Plaintiffs PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIMINE NO. 8 TO EXCLUDE ONE-PAGE DOCUMENT FROM JUNE 2014 6EXHIBIT A PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIMINE NO. 8 TO EXCLUDE ONE-PAGE DOCUMENT FROM JUNE 2014 7Agreement to End Lease on Subject Property: 778 25" Avenue, San Francisco, California 94121. Tenants Angelique Rochelle and all remaining tenants (al! children and others) acknowledge and desires to voluntarily surrender and permanently terminates tenancy and current and/or future right of occupancy by moving out of the subject premise 02 July 8th, 2014, at subject premise at 778 ast Avenue, San Francisco, California 94121, Landlord Trevor Chu Hua Deng and May Geng will provide compensation exactly $25,000 to terminate tenancy by Angelique Rochelle. $12,500 (Cashier's Check) will be provided to Angelique Rochelle on signing this agreement and the remainder of $12,500 will be provided at receiving the keys and garage keys to 778 25" Avenue, along with property inspection, cleaning subject property and vacating the unit fully by July 8". This $25,000 amount includes refund of the security deposit and any interest owed, along with any additional cost involved in surrendering the premise property. Should tenant Angelique Rochelle fail to timely vacate the subject premise on or before July 38”, 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. This agreement is freely and voluntarily entered into by the parties. The parties hereto represent, declare, admit and warrant'that in executing this Agreement they relied solely upon their own judgment, and knowledge and the advice that was obtained by independent counsel. Any and all personal possessions or other personal property remaining on the premises after tenant cacates are hereby declared abandoned and of no value ‘Landlord may dispose of said property as they see fit. i Peer ft teeta s iu he vate W2S / 2014 Angelique Rochelle - LCN ak pated: 46/235 / faa Trevor Chu Hug Dérig 7 f Dated: bias , 2014 May Deng