Motion for Summary Judgment in DANIEL PLATT ET AL VS. BILL QUAN ET AL| Trellis.Law

On May 09, 2019 a Motion-Secondary was filed involving a dispute between Platt, Daniel, Platt, Rocio, and Does 1-10 Inclusive, Lai King Quan Properties, Llc, Quan, Bill, for WRONGFUL EVICTION in the District Court of San Francisco County.

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1 DANIEL W. WAYNE (SBN 278752)
JASON N. WOLFORD (SBN 194177) ELECTRONICALLY
2 MEGAN J. JOHNSON (SBN 293007)
WOLFORD WAYNE LLP F I L E D
3 220 Montgomery Street, Suite 1100 Superior Court of California,
County of San Francisco
San Francisco, California 94104
4 Telephone: 415-649-6203 03/20/2020
Facsimile: 415-649-6739 Clerk of the Court
5 daniel@wolford-wayne.com BY: ERNALYN BURA
Deputy Clerk

6
PAUL BEHREND (SBN 235497)
7 LAW OFFICE OF PAUL BEHREND
388 Market Street, Suite 1300
8 San Francisco, CA 94111
Telephone: (415) 360-2545
9 behrendlaw@gmail.com

10
Attorneys for Plaintiffs
11 DANIEL PLATT and ROCIO PLATT

12
SUPERIOR COURT OF CALIFORNIA - COUNTY OF SAN FRANCISCO
13
LIMITED JURISDICTION
14
15 DANIEL PLATT, ROCIO PLATT, Case No. CGC-19-575831
Plaintiffs, PLAINTIFFS’ MEMORANDUM OF
16 POINTS AND AUTHORITIES IN
vs. OPPOSITION TO DEFENDANTS’
17 MOTION FOR SUMMARY
BILL QUAN; LAI KING QUAN JUDGMENT OR IN THE
18 PROPERTIES, LLC and DOES 1-10 ALTERNATIVE, FOR SUMMARY
Inclusive. ADJUDICATION
19
Defendants. Date: April 3, 2020
20 Time: 9:30 A.M.
Department: 501
21
Action Filed: May 9, 2019
22 Trial Date: May 4, 2020

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28 ____________________________________________________________________________________
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION
1 TABLE OF CONTENTS
2
I. INTRODUCTION ....................................................................................................................... 1
3
II. STATEMENT OF FACTS .......................................................................................................... 1
4
5 III. LEGAL STANDARD FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION
MOTIONS ................................................................................................................................... 4
6
A. Defendants Must Show That Under No Hypothesis is There A Material Factual Issue
7
Requiring A Trial ......................................................................................................................... 4
8
IV. ARGUMENT ............................................................................................................................... 5
9
A. Plaintiffs’ Claims Under SFRO Section 37.9(f) Are Not Time Barred Because the Statute
10
Explicitly Provides Tenants With Grounds for Action Where a Landlord Endeavors to Recover
11 or Recovers Possession of a Rental Unit ..................................................................................... 6

12 B. The Continuing Violation Doctrine and/or Theory of Continuous Accrual Applies to
Plaintiffs’ 37.10B and 37.9(f) Rent Ordinance Claims................................................................ 7
13
C. Plaintiffs’ Third Through Ninth Causes of Action Are Not Barred by the
14 “Primary Rights / Gravamen of Action” Theory ......................................................................... 8
15 D. There is a Triable Issue of Material Fact(s) as to Plaintiffs’
16 Constructive Eviction Claim ...................................................................................................... 12

17 V. CONCLUSION .......................................................................................................................... 12
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28 ____________________________________________________________________________________
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION
1 TABLE OF AUTHORITIES
2 CASES
3 Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826 ............................................................................................................................. 4
4
Aryeh v. Canon Business Solutions, Inc.
5
55 Cal.4th 1185, 1191-1193 (2013) ........................................................................................................ 7
6
Binder v. Aetna Life Ins. Co.
7 (1999) 75 Cal.App.4th 832 ..................................................................................................................... 4
8 Cortez v. Purolator Air Filtration Products Co.
23 Cal. 4th 163, 178-179 (2000) ........................................................................................................... 12
9
10 Dep’t. of Gen. Services v. Sup. Ct.
(1978) 85 Cal.App.3d 273 ...................................................................................................................... 5
11
Erlach v. Sierra Asset Servicing, LLC
12 226 Cal.App.4th 1281, 1298-1299 (2014) ............................................................................................ 11
13
Groh v. Kover’s Bull Pen, Inc.
14 221 Cal.App.2d 611, 615 (1963) .......................................................................................................... 12

15 Hjelm v. Prometheus Real Estate Group, Inc.
3 Cal.App.5th 1155 (2016) ................................................................................................................... 11
16
17 Ingham v. Luxor Cab Co.
(2001) 93 Cal.App.4th 1045 ................................................................................................................... 5
18
Kolodge v. Boyd
19 (2001) 88 Cal.App.4th 349 ................................................................................................................. 4, 5
20 Komarova v. National Credit Acceptance, Inc.
21 175 Cal.App.4th 324, 343 (2009) ........................................................................................................... 8

22 Leep v. American Ship Mgmt, LLC
(2005) 126 Cal.App.4th 1028 ................................................................................................................. 5
23
Lopez v. Sup. Ct.
24
(1996) 45 Cal.App.4th 705 ................................................................................................................... 10
25
Menefee v. Ostawari
26 (1991) 228 Cal.App.3d 239 .............................................................................................................. 9, 10

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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION
Mitchell v. Leslie (1995)
1 39 Cal.App.4th Supp. 7 ......................................................................................................................... 12
2
People v. Overstock.com, Inc.
3 12 Cal.App.5th 1064, 1075 (2017) ....................................................................................................... 12

4 Petroleum Collections Inc. v. Swords
48 Cal.App.3d 841, 847-848 (1975) ..................................................................................................... 12
5
6 Scheiding v. Dinwiddie Const. Co.
(1999) 69 Cal.App.4th 64 ....................................................................................................................... 4
7
Stoiber v. Honeychuck
8 101 Cal.App.3d 903 (1980) ............................................................................................................ 10, 11
9
United Cmty. Church v. Garcin
10 (1991) 231 Cal.App.3d 327 .................................................................................................................... 5

11 Zoran Corp. v. Chen
185 Cal.App.4th 799, 806 (2010) ........................................................................................................... 5
12
STATUTES
13
Business and Professions Code §7200 et seq ....................................................................................... 3, 11
14
Code of Civil Procedure § 437................................................................................................................ 4, 5
15
16 Code of Civil Procedure § 335.1............................................................................................................... 11

17 Code of Civil Procedure § 337............................................................................................................ 11, 12

18 Code of Civil Procedure § 338............................................................................................................. 11,12
19 OTHER AUTHORITIES
20 San Francisco Rent Ordinance §37.9 ...................................................................................................... 6, 8
San Francisco Rent Ordinance §37.10B ................................................................................................. 6, 8
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28 ____________________________________________________________________________________
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION
1 I. INTRODUCTION
2 Plaintiff Rocio Platt entered into a lease agreement with Defendants on March 1, 2012 for 1025

3 Bush Street, Unit 5, San Francisco, California. On July 4, 2012, Plaintiff Rocio Platt’s husband, Plaintiff
4 Daniel Platt, moved into the unit with her. Throughout their tenancy, Plaintiffs endured, and frequently
5 complained about the habitability conditions in their unit.
6 At the end of December 2018, Plaintiffs discovered bedbugs in their unit. Between January and
7 March 2019, Plaintiffs stayed at a hotel while their unit was being treated multiple times. When the
8 bedbug infestation spread in the building where their unit was located, and the infestation failed to be
9 eradicated in their unit, Plaintiffs concluded that Defendants were never going to properly treat the
10 problem. Because of this Plaintiffs permanently vacated their unit on March 30, 2019.
11 Plaintiffs filed their complaint on May 9, 2019. Defendants filed a motion for Summary
12 Judgment or in the alternative, Summary Adjudication on January 16, 2020, arguing that Plaintiffs’
13 claims were barred by the Statute of Limitations. Plaintiffs oppose this motion.
14 II. STATEMENT OF FACTS
15 On March 1, 2012, Plaintiff Rocio Platt entered into a lease agreement with Defendant Lai King
16 Quan Properties, LLC and thereafter moved into 1025 Bush Street, Unit 5, San Francisco, California
17 (hereinafter the “Subject Unit”). (Plaintiffs’ Separate Statement Of Disputed And Undisputed Material
18 Facts In Opposition To Defendants’ Motion For Summary Judgment Or In The Alternative, Summary
19 Adjudication (“Pltff. Sep. Stmt.”) Nos. 23 and 24). On July 4, 2012, Rocio’s husband, Plaintiff Daniel
20 Platt moved into the Subject Unit. (Pltff. Sep. Stmt. No. 25). Throughout the years of their tenancy,
21 Plaintiffs dealt with multiple habitability defects, culminating in a bedbug infestation in December 2018
22 and continuing through the Spring of 2019. (Pltff. Sep. Stmt. No. 26). Plaintiffs made repeated
23 complaints to Defendants of the various issues throughout their tenancy. (Pltff. Sep. Stmt. No. 27).
24 During their tenancy Plaintiffs complained about recurring water intrusion in the ceiling of the
25 Subject Unit’s bathroom in May 2013, April 2016, and February 2018. (Pltff. Sep. Stmt. No. 28). In
26 May 2013 Plaintiffs complained about the Subject Unit’s bathroom ceiling collapsing due to the water
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION
1 intrusion. (Pltff. Sep. Stmt. No. 29). There were also multiple instances of the electricity not working
2 throughout the years, affecting lights throughout 1025 Bush Street, San Francisco, California

3 (hereinafter the “Subject Property”), which Plaintiffs complained about in May and December 2013,
4 December 2014, January and February 2016, and March 2017. (Pltff. Sep. Stmt. No. 30). In 2016,
5 Plaintiffs notified Defendant Quan that the Subject Unit’s bathroom had a malfunctioning light fixture
6 that was causing sparks to fly out. (Pltff. Sep. Stmt. No. 31).
7 Additionally, Plaintiffs dealt with vermin, including mouse /rat infestations, and a longstanding
8 infestation of cockroaches. Plaintiffs complained about these conditions as early as 2014 and continued
9 to complain of these problems when they returned in 2016, throughout 2017, and again in late 2018.
10 (Pltff. Sep. Stmt. No. 32). In February 2018, Plaintiffs complained that the Subject Unit did not have
11 sufficient or functioning heat. (Pltff. Sep. Stmt. No. 33). Although Plaintiffs notified Defendant Quan of
12 these various conditions frequently, despite assurances that he would address the problems, Defendant
13 Quan either failed to make repairs or made inadequate repairs, causing the problems to recur again and
14 again throughout the tenancy. (Pltff. Sep. Stmt. Nos. 34 and 35).
15 In early December 2018, Plaintiff Rocio Platt gave birth to the couple’s first child, who was born
16 prematurely. (Pltff. Sep. Stmt. No. 36). On December 29, 2018, Plaintiffs discovered live bed bugs on
17 their furniture in the Subject Unit. (Pltff. Sep. Stmt. No. 37). Plaintiffs promptly informed Defendant
18 Quan, who told them that the Subject Unit could not be treated until January 2, 2019. (Pltff. Sep. Stmt.
19 No. 37). During this time Plaintiffs discovered bedbug bites on Plaintiff Rocio Platt and on their baby.
20 (Pltff. Sep. Stmt. No. 38). Out of fear for their health and safety and that of their newborn child
21 Plaintiffs temporarily located to a nearby hotel. (Pltff. Sep. Stmt. No. 39). On January 2, 2019, Pest
22 Control Operator Hendrick Wong from One Source Termite inspected the Subject Unit for bedbugs at
23 Defendant’s request and conducted an initial treatment of Subject Unit. (Pltff. Sep. Stmt. No. 40). On
24 January 6, 2019, Plaintiffs attempted to move back into the Subject Unit only to discover more live
25 bedbugs in the unit. (Pltff. Sep. Stmt. No. 41). As a result, Plaintiffs informed Defendants and Mr.
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION
1 Wong on January 7, 2019. (Pltff. Sep. Stmt. No. 42). On January 9, 2019, Mr. Wong performed a
2 second treatment for bedbugs at the Subject Unit. (Pltff. Sep. Stmt. No. 44).

3 During January and February 2019, Plaintiffs continued to inform Defendants, and One Source
4 of the continuing presence of bedbugs, and filed a complaint with the San Francisco Department of
5 Public Health. (Pltff. Sep. Stmt. No. 45). Mr. Wong continued to treat the unit but failed to follow the
6 proper protocol for treatments--on March 1, 2019, Mr. Wong treated the Subject Unit for a fifth time.
7 (Pltff. Sep. Stmt. No. 48). Mr. Wong told Plaintiff Rocio Platt that he wanted to use more significant
8 treatment, but Defendant Quan was unresponsive to his communications. (Pltff. Sep. Stmt. No. 47).
9 On March 11, 2019, the tenants living in Apartment 7, the unit directly above Plaintiffs, reported
10 the presence of bedbugs, despite not having bedbugs when inspected on January 7, 2019. (Pltff. Sep.
11 Stmt. No. 49). Plaintiffs concluded that given the ongoing nature of the infestation and Mr. Wong’s
12 failure to follow proper protocol, the infestation was not being handled properly. (Pltff. Sep. Stmt. No.
13 50). As a result, on March 12, 2019, Plaintiffs informed Defendant Quan that they would permanently
14 vacate the Subject Unit due to Defendants’ failure to remediate the bedbug infestation at the end of the
15 month. (Pltff. Sep. Stmt. Nos. 51 and 55). Plaintiffs permanently vacated the Subject Unit on March 30,
16 2019. (Pltff. Sep. Stmt. No. 52). Plaintiffs had paid their rent for January, February, and March 2019
17 despite staying at a hotel during that time. (Pltff. Sep. Stmt. No. 53).
18 On May 9, 2019, Plaintiffs filed the underlying lawsuit against Defendants alleging nine causes
19 of action: 1) violation of SFRO section 37.10B; 2) violation of SFRO section 37.9; 3) contractual breach
20 of the covenant of quiet enjoyment; 4) tortious breach of the covenant of quiet enjoyment; 5) breach of
21 the warranty of habitability; 6) negligence (including negligent infliction of emotional distress); 7)
22 violation of Business and Professions Code section 17200 et seq.; 8) negligence per se / negligent
23 violation of statutory duties (including, but not limited to: SFRO section 37 and California Civil Code
24 sections 1927, 1940, 1941.1, 1940.2 and 1950.5; and 9) constructive eviction. (Declaration of Daniel W.
25 Wayne, Ex. A Complaint at 5:14-11:22).
26 ///
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION
III. LEGAL STANDARD FOR SUMMARY JUDGMENT AND SUMMARY
1 ADJUDICATION MOTIONS
2
A. Defendants Must Show That Under No Hypothesis is There A Material Factual
3 Issue Requiring A Trial
A defendant moving for summary judgment bears the burden of demonstrating either that one or
4
more elements of the plaintiff’s cause of action cannot be established or that there is a complete defense
5
thereto. (Code Civ. Proc. § 437c(o) and (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
6
850). The motion must be supported by evidence such as affidavits, declarations, admissions, answers
7
to interrogatories, depositions, or matters judicially noticed. (Code Civ. Proc. § 437c(b)(1)); Aguilar at
8
854). A moving defendant has to put forth evidence showing the plaintiff does not possess, and cannot
9
reasonably obtain, evidence necessary to establish an element of any cause of action. (Aguilar at 849).
10
Ultimately, “[t]he moving party must demonstrate that under no hypothesis is there a material factual
11
issue requiring a trial.” (Euclid Homeowners Ass’n v. State Farm Fire and Cas. Co. (2006) 135
12
Cal.App.4th 1008, 1017).
13
Only if the defendant meets that burden does the burden shift to the plaintiff to show that there is
14
a triable issue of one or more material facts, warranting trial. (Code Civ. Proc. § 437c(p)(2); Scheiding v.
15
Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 83-84; Binder v. Aetna Life Ins. Co. (1999) 75
16
Cal.App.4th 832, 840).
17
Regardless, “from commencement to conclusion, the party moving for summary judgment bears
18
the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment
19
as a matter of law.” Aguilar at 850.
20
In ruling on a motion for summary judgment the moving party’s evidence must be strictly
21
construed, while the opposing party’s evidence must be liberally construed, with all inferences
22
reasonably drawn therefrom viewed in the light most favorable to the opposing party. (Binder at 840;
23
Aguilar at 843; Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 355; Code Civ. Proc. § 437c(c)). Also,
24
“because of the drastic nature of the remedy of summary judgment and SAI [summary adjudication of
25
issues], the moving party ‘is held to strict compliance with the procedural requisites.” (United Cmty.
26
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28 ____________________________________________________________________________________
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION
1 Church v. Garcin (1991) 231 Cal.App.3d 327, 337 (superseded by statute on another ground; citing
2 Dep’t. of Gen. Services v. Sup. Ct. (1978) 85 Cal.App.3d 273, 284)).

3 Furthermore, “[a]ll doubts as to whether there are any triable issues of fact are to be resolved in
4 favor of the party opposing summary judgment,” and “[a]ny doubts about the propriety of granting the
5 motion must be resolved in favor of the party opposing the motion.” (Ingham v. Luxor Cab Co. (2001)
6 93 Cal.App.4th 1045, 1049; Kolodge at 355).
7 Finally, because summary judgment is a “drastic procedure” it “should be used cautiously so that
8 it is not a substitute for a trial on the merits as a means of determining facts.” (Leep v. American Ship
9 Mgmt, LLC (2005) 126 Cal.App.4th 1028, 1036).
10 Similarly, summary adjudication “is a drastic measure which should be used with caution so that
11 it does not become a substitute for trial.” Zoran Corp. v. Chen, 185 Cal.App.4th 799, 806 (2010).
12 The rules applicable to motions for summary adjudication are essentially identical to those pertaining to
13 a motion for summary judgment:
14 A party may move for summary adjudication as to one or more causes of
15 action within an action . . . if the party contends that the cause of action
has no merit . . . A motion for summary adjudication shall be granted
16 only if it completely disposes of a cause of action, an affirmative defense,
a claim for damages, or an issue of duty.
17
Code Civ. Proc. § 437c(f)(1); Zoran at 805-806.
18
As shown below, Defendants fail to demonstrate that one or more elements cannot be
19
established, or that there is a complete defense to, any of Plaintiffs’ causes of action
20
IV. ARGUMENT
21
22 As detailed herein, Defendants’ Motion must be denied in its entirety, as, they not only fail to
23 meet their burden on any of the issues raised, but their arguments are without merit.
24 Defendants’ entire motion for summary judgment/adjudication rests on the contention that
25 Plaintiffs’ First Cause of Action for violation of San Francisco Rent Ordinance (“SFRO”) section
26 37.10B and Second Cause of Action for violation of SFRO section 37.9 are barred by a one-year statute
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION
1 of limitations. (Defendants’ Memorandum of Points and Authorities in Support of Motion for Summary
2 Judgment/Adjudication (“Defts’ MPA”) at 3:8-10 and 16-21, 5:17-19). Defendants contend that because

3 Plaintiffs allege that some of Defendants’ wrongful acts which violated SFRO sections 37.10B and 37.9
4 began as early as 2012, and the Complaint was filed in 2019, these causes of action are barred by the
5 one-year statute of limitations. (Defts’ MPA at 5:5-19).
6 While Plaintiffs acknowledge that claims brought under the SFRO carry a one-year statute of
7 limitations, neither claim is time-barred because: 1) Plaintiffs cause of action for wrongful eviction
8 pursuant to Section 37.9(f) was filed less than one year after Defendants wrongfully recovered
9 possession of the Subject Unit; and 2) the continuing violation doctrine and/or the continuous accrual
10 theory applies to both causes of action.
11 A. Plaintiffs’ Claims Under SFRO Section 37.9(f) Are Not Time Barred Because the Statute
12 Explicitly Provides Tenants With Grounds for Action Where a Landlord Endeavors to
Recover or Recovers Possession of a Rental Unit
13
SFRO Section 37.9(f) authorizes an action where a landlord “wrongfully endeavors to recover
14
possession or recovers possession” of a rental unit in violation of Section 37.9. Defendants both: 1)
15
wrongfully endeavored to recover possession of the subject premises from Plaintiffs through a pattern of
16
wrongful acts [PSS in SOF]; and 2) in fact, recovered possession of the subject unit upon Plaintiffs’
17
vacation of same in March 2019. (Pltff. Sep. Stmt. Nos. 52 and 54).
18
Here, while Plaintiffs’ complaint does indeed reference ongoing defective conditions throughout
19
the years, which Plaintiffs’ allege constituted an endeavor to recover possession, Defendants actions
20
caused plaintiffs to permanently vacate the Premises in March 2019, at which point Defendants
21
recovered possession of the Subject Unit. (Pltff. Sep. Stmt. Nos. 51, 52, and 54).
22
Plaintiffs’ First Cause of Action, for violation of SFRO section 37.9(f) was clearly brought
23
within the one-year statute of limitations because it was filed less than two months after Defendants
24
wrongfully recovered possession of the Subject Unit. Defendants have wrongly focused their argument
25
on grounds that the statute of limitations for Section 37.9(f) began to run from the moment Defendants
26
first endeavored to recover possession and completely ignore the true language of the statute which
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION
1 clearly allows for a tenant to bring an action based on the wrongful recovery of possession. Inexplicably,
2 Defendants appear to be suggesting that a cause of action for “wrongful eviction” would have to be filed

3 by a party before they have even been wrongfully evicted. This reading of the law is nonsensical and
4 flies in the face of the statute’s plain language.
5 Plaintiffs’ Complaint was filed May 9, 2019, well within the one-year limitations period.
6 Therefore, Defendants’ motion for summary adjudication as to Plaintiffs’ Second Cause of Action fails
7 and must be denied.
8 B. The Continuing Violation Doctrine and/or Theory of Continuous Accrual Applies to
9 Plaintiffs’ 37.10B and 37.9(f) Rent Ordinance Claims

10 Additionally, Plaintiffs Rent Ordinance Claims are not time barred because the problems alleged

11 were continuous and ongoing. While a statute of limitations period typically runs from the moment a

12 claim accrues, there are several exceptions to and modifications of the usual rule. Aryeh v. Canon

13 Business Solutions, Inc., 55 Cal.4th 1185, 1191-1193 (2013). These exceptions and modifications

14 include the continuing violation doctrine and the theory of continuous accrual. Id. at 1192.

15 The California Supreme Court held that the continuing violation doctrine “aggregates a series of

16 wrongs or injuries for purposes of the statute of limitations, treating the limitations period as accruing

17 for all of them upon commission or sufferance of the last of them.” Id. Allegations of a pattern of

18 reasonably frequent and similar acts may justify treating the acts as “an indivisible course of conduct

19 actionable in its entirety, notwithstanding that the conduct occurred partially outside and partially inside

20 the limitations period.” Id. at 1198. The First District Court of Appeal endorsed this articulation of the

21 continuing violation doctrine in upholding a judgment in favor of a plaintiff:

22 [D]efendant’s statute of limitations defense was overcome by the continuing
violation doctrine, which permits recovery “for actions that take place outside
23 the limitations period if these actions are sufficiently linked to unlawful conduct
24 within the limitations period [.]” “The key is whether the conduct complained of
constitutes a continuing pattern and course of conduct as opposed to unrelated
25 discrete acts. If there is a pattern, then the suit is timely if ‘the action is filed
within one year of the most recent [violation]’ [citation], and the entire course
26 of conduct is at issue.”
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION
1 Komarova v. National Credit Acceptance, Inc., 175 Cal.App.4th 324, 343 (2009) (emphasis added;
2 internal citations omitted).

3 This perfectly describes the Plaintiffs’ experience at the hands of Defendants who permitted the
4 extensive dilapidated and dangerous conditions described above to persist, and repeatedly made wholly
5 ineffectual and inadequate attempts to remedy these conditions. These wrongful acts violate section
6 both 37.10B’s prohibition on tenant harassment and section 37.9’s prohibition on wrongful efforts to
7 recover possession of the Subject Unit.
8 Alternatively, under the theory of continuous accrual, “a series of wrongs or injuries may be
9 viewed as each triggering its own limitations period, such that a suit for relief may be partially time-
10 barred as to older events but timely as to those within the applicable limitations period.” Id. at 1192.
11 This theory can also be applied to Defendants’ wrongful actions described above, and would support
12 recovery for damages arising from those breaches falling within the limitations period. Id. at 1199.
13 It is clear that under no applicable rule, doctrine, or theory are Plaintiffs’ First Cause of Action or
14 Second Cause of Action barred by any statute of limitations. Defendants have failed to carry their
15 burden to demonstrate that there is a “complete defense” to either of these causes of action. Therefore,
16 Defendants’ motion for summary adjudication as to those claims, and indeed Defendants’ entire motion,
17 fails.1
18 C. Plaintiffs’ Third Through Ninth Causes of Action Are Not Barred by the “Primary
Rights / Gravamen of Action” Theory
19
Because Plaintiffs’ Rent Ordinance Claims are not time-barred, Defendants’ argument that a
20
“primary rights / gravamen of action” theory bars in turn any of Plaintiffs’ other causes of action is moot
21
and similarly fails. However, Plaintiffs will address Defendants’ remaining arguments, as they are
22
readily dismissed on independent grounds.
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26 1
Defendants’ convoluted argument, misstatements of Plaintiffs’ claims and the facts of the case, and the propositions for
which the decisions they cite stand are glaringly obvious and do not warrant more than a footnote, although certain instances
27 are further addressed in Plaintiffs’ Separate Statement and Objections to Evidence.
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION
1 As with their argument regarding Plaintiffs’ Rent Ordinance Claims, Defendants rely on
2 completely inapplicable rules and case law for their argument that a bar to Plaintiffs’ First and Second

3 Causes of Action would necessarily dictate that Plaintiffs’ seven remaining claims are also barred.
4 For this argument, Defendants depend most heavily of all on Menefee v. Ostawari (1991) 228
5 Cal.App.3d 239, a case which actually shows in high relief how mistaken Defendants’ reasoning is. In
6 Menefee, a tenant was served with a 30-day notice terminating tenancy. Id. at 242. More than a year
7 later the tenant sued his landlord for a violation of San Francisco Rent Control Ordinance section 37.9,
8 and 11 additional causes of action, five of which the court of appeals’ opinion identifies: breach of
9 covenant of quiet enjoyment, negligence, fraud, negligent misrepresentation, and infliction of emotional
10 distress. Id. The trial court’s order granting summary judgment as to the plaintiff’s entire complaint
11 was affirmed. Id. at 239.
12 While Defendants leap to the conclusion that the result in Menefee should be replicated here
13 (Defts’ MPA at 7:11-28), the two cases are more distinguishable than they are similar. In Menefee, the
14 Plaintiff brought a single rent ordinance-based claim, for violation of SFRO section 37.9. Id. at 242.
15 Furthermore, the basis alleged for the violation was that the 30-day notice on its face said it was being
16 served due to a change of ownership, which the court noted was not one of the 13 conditions described
17 in section 37.9 under which a landlord is permitted to terminate a tenancy. Id. Not only was the alleged
18 substance of the violation completely different in nature from the continuing harassment at issue in this
19 case, the wrongful act was a single discrete event—the service of a notice. Id. at 242, 245.
20 In the case at bar, the issues on which Plaintiffs have based their SFRO 37.10B harassment cause
21 of action based on conduct of a continuous nature, not one discrete wrongful act, and the one act that
22 was discreet – their move out – occurred less than two months prior to the filing of the underlying
23 action. Thus, Plaintiffs’ situation is easily distinguished.
24 While Defendants have manufactured inapplicable legal theories, such as “derivative causes of
25 action” “predicated on the same conduct” out of whole cloth, citing no supporting authority, Menefee is
26 so distinguishable as to have no bearing whatsoever on the statute of limitations issues raised in
27
9
28 ____________________________________________________________________________________
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION
1 Defendants’ motion. Therefore, following the discussion above at IV.A., even if the Court were to find
2 that the one-year statute of limitations could be imposed on Plaintiffs’ seven remaining causes of action,

3 they still would not be time-barred.
4 The reality is that, as the party moving for summary judgment, Defendants have the burden to
5 show they are entitled to judgment with respect to all theories of liability asserted by Plaintiffs. Lopez v.
6 Sup. Ct., (1996) 45 Cal.App.4th 705, 717 (emphasis added). As discussed above, motions for summary
7 judgment and for summary adjudication are drastic procedures that should be used cautiously-- the
8 burden of persuasion is squarely on the moving party, and all inferences reasonably are to be viewed in
9 the light most favorable to the opposing party.
10
1. Appellate courts have repeatedly endorsed tenants’ suing landlords for negligence,
11 constructive eviction, emotional distress, damage to personal property, and unlawful
12 business practices in cases alleging habitability issues.

13 It should come as no surprise that a case far more similar to this matter, Stoiber v. Honeychuck,

14 101 Cal.App.3d 903 (1980), reached a completely different result than that in Menefee. In Stoiber, the

15 tenant plaintiffs sued the owners of the property and the managing agent for compensatory and punitive

16 damages based on the dilapidated and unsafe condition of the premises. Id. at 903. Plaintiffs alleged

17 there were numerous defective and dangerous conditions including, but not limited to leaking of sewage

18 from the bathroom plumbing; defective and dangerous electrical wiring; structural weaknesses in the

19 walls; deteriorated flooring; falling ceiling; leaking roof; dilapidated doors; and broken windows. Id. at

20 912. They brought claims for breach of warranty of habitability, nuisance, intentional infliction of

21 emotional distress, negligent violation of statutory duty, constructive eviction, and injunctive relief from

22 unlawful business practices. Id. at 911. The trial court granted defendant owner’s motion for judgment

23 on the pleadings, ruling that the action against the landlord for breach of warranty of habitability

24 constituted plaintiff’s exclusive remedy, and striking the other causes of action. Id. at 903.

25 The court of appeals reversed, holding that plaintiff’s remedies were not limited to an action for

26 breach of the warranty of habitability, but included the right to sue the landlord and his agents in tort for

27 damages for mental distress and injury to personal property suffered as a result of the failure to maintain
10
28 ____________________________________________________________________________________
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION
1 the premises. Id. at 904. Plaintiffs here allege infliction of emotional distress and property damage
2 throughout their Complaint, and specifically in their Fourth and Seventh Causes of Action.

3 The Stoiber court further held that the negligent infliction of emotional distress--anxiety, worry,
4 discomfort--is compensable without physical injury in cases involving the tortious interference with
5 property rights, and the plaintiff was entitled to prove her damages for emotional distress because the
6 failure to repair not only allegedly caused water damage to her furnishings, it also must be deemed to
7 constitute an injury to her tenancy interest (right to habitable premises) which is a species of property.
8 Id. at 922-923; see also Erlach v. Sierra Asset Servicing, LLC, 226 Cal.App.4th 1281, 1298-1299
9 (2014); see also Hjelm v. Prometheus Real Estate Group, Inc., 3 Cal.App.5th 1155 (2016)
10 (approving verdict and damages awards under

Case Info

Judge

Garrett L. Wong Track Judge’s New Case

Case No.

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Document Filed Date

March 20, 2020

Case Filing Date

May 09, 2019

County

Parties

BEHREND, PAUL Attorney for the Plaintiff
DOES 1-10 INCLUSIVE Defendant
LAI KING QUAN PROPERTIES, LLC Defendant
PLATT, DANIEL Plaintiff
PLATT, ROCIO Plaintiff
POWER, DAVID JAMES Attorney for the Defendant
QUAN, BILL Defendant
TOLIVER, SHAWN ADRIAN Attorney for the Defendant
WAYNE, DANIEL WILLIAM Attorney for the Plaintiff
Andrew Klimenko Attorneys for Defendants
Thomas Dao Attorney
Jason Wolford Attorneys for Defendants
Megan Johnson Attorneys for Plaintiffs

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Motion-Secondary: DANIEL PLATT ET AL VS. BILL QUAN ET AL

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