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LAW OFFICES OF BENNY MARTIN ELECTRONICALLY
Benjamin Martin (SBN 257452)
647 pene ee Ave 7 eee
Los Angeles, CA 90291 Lp 01
510-227-4406 01/13/2017
knowyourrightsinsf@gmail.com Gielk of the Court
BY:SANDRA SCHIRO
Attorney for Plaintiff, Phillip Garcia Deputy Clerk
PHILLIP GARCIA, an individual,
ANGELO WILSON, an individual, and DOES
1-20, et. al.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
Case # CGC-14-538560
Plaintiff, DECLARATION OF PLAINTIFF’S COUNSEL
BENNY MARTIN IN SUPPORT OF MOTION
FOR LEAVE TO FILE A THIRD AMENDED
COMPLAINT, OR IN THE ALTERNATIVE,
TO FILE AN AMENDMENT SUBSTITUTING
CARRIE WILSON FOR DOE 1
VS.
Date: February 8, 2017
Time: 9:30 a.m.
Dept: 501
Trial: March 27, 2017
Date Original Complaint Filed: June 9, 2014
Defendants.
eee
I, Benny Martin, declare:
1.
DECLARATION OF PLAINTIFF’S COUNSEL BENNY MARTIN IN SUPPORT OF MOTION FOR LEAVE TO FILE
A THIRD AMENDED COMPLAINT, OR IN THE ALTERNATIVE, TO FILE AN AMENDMENT SUBSTITUTING
. Attached hereto as Exhibit C is a true and correct copy of Plaintiff's Second Amended Complaint
lam an attorney at law fully licensed to practice before the Courts of the state of California, and
am attorney of record for Plaintiff in the instant matter. All such matters are based on my personal]
knowledge. If called as a witness to testify, and could and would competently testify to the
matters set forth herein.
The [Proposed] Third Amended Complaint is attached hereto as Exhibit A. The [Proposed]
Amendment to the Second Amended Complaint as Exhibit B.
(“SAC”) was filed on January 14, 2016.
In the course of discovery, Plaintiff has learned that Defendant The Wilson Family Trust is a non-
existent and fraudulent entity. For example, in discovery, in February 2016, Defendant The
Wilson Family Trust could not produce a single document “establishing or registering” the Trust
Coy
CARRIE WILSON FOR DOE |nD
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in any jurisdiction. Attached hereto as Exhibit D is a true and correct copy of Supplemental
Responses of Carrie Wilson in her capacity as trustee of The Wilson Family Trust to Plaintiff’s
First Set of Request fro Production of Documents.
5. Thereafter, Plaintiff attempted to take the deposition of Carrie Wilson to inquire on the existence
of the Trust. Due to health concerns, Carrie Wilson could not be deposed, and cancelled the
deposition each time, the last of which occurred in December 2016. Attached hereto as Exhibit E
is a true and correct copy of a December 7, 2016, e-mail from Defense counsel cancelling the
latest attempt to depose Carrie Wilson.
6. Asa result, Plaintiff undertook independent investigation, outside regular discovery. Plaintiff
hired multiple document researchers to search public records of the Trust’s existence in the
counties in which the trust owned real property—as set forth in 2016 discovery responses.
Attached hereto as Exhibit F is a true and correct copy of Carrie Wilson in her capacity as
Trustee of the Wilson Family Trust’s Responses to Special Interrogatories Propounded by
Plaintiff, Phillip Garcia, Set Two.
7. On December 31, 2016, Plaintiff's counsel wrote to defendants’ counsel:
Please also consider propounding discovery on behalf of Carrie Wilson in
her individual capacity since the discovery deadline is approaching. But
we would be included to extending the deadline for that discovery too to
avoid any prejudice to naming Carrie Wilson in her individual capacity so
close to trial.
Attached hereto as Exhibit G is a true and correct copy of the December 31, 2016, e-mail.
8. On January 12, 2016, Plaintiff's counsel also wrote defendant’s counsel to stipulate to shortening
time on this motion to provide more time to conduct discovery. Attached hereto as Exhibit H is a
true and correct copy of the January 12, 2017, e-mail.
I declare under the penalty of perjury under the laws of the state of California that the foregoing is
true and correct. Executed in Berlin, Germany.
DATED: January 12, 2017 LAW OFFICES OF BENNY MARTIN
BENJAMIN MARTIN
Attorney for Plaintiff
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DECLARATION OF PLAINTIFF’S COUNSEL BENNY MARTIN IN SUPPORT OF MOTION FOR LEAVE TO FILE
A THIRD AMENDED COMPLAINT, OR IN THE ALTERNATIVE, TO FILE AN AMENDMENT SUBSTITUTING
CARRIE WILSON FOR DOE |EXHIBIT AnD
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LAW OFFICES OF BENNY MARTIN
Benjamin Martin (SBN 257452)
647 Santa Clara Ave
Los Angeles, CA 90291
510-227-4406
knowyourrightsinsf@gmail.com
Attorney for Plaintiff, Phillip Garcia
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
PHILLIP GARCIA, an individual, Case # CGC-14-538560
Plaintiff, PLAINTIFF’S [PROPOSED] THIRD
AMENDED COMPLAINT
VS.
her capacity as trustee of THE WILSON
FAMILY TRUST, SHAUN MARKHAM. an
individual, ANGELO WILSON, an individual
and DOES 1-20,
)
)
)
)
)
)
)
CARRIE WILSON, in her individual and in ;
; JURY TRIAL REQUESTED
)
)
)
)
)
Defendants.
)
NOW HERE COMES PLAINTIFF, PHILLIP GARCIA (Plaintiff) WHO ALLEGES:
INTRODUCTION
1. This action arises out of a landlord-tenant relationship between Plaintiff Phil Garcia, the tenant,
and The Wilson Family Trust, the landlord. The subject premises located at 1665 Hayes Street,
San Francisco, CA 94117 (“subject premises”).
2. Plaintiff sues Defendants for breaches of the written 2010 lease entered into between Mr. Garcia
and The Wilson Family Trust (attached as Exhibit A) for refusing to address Mr. Garcia’s noise
complaints; for invading Defendant’s privacy by filming Mr. Garcia inside his residence through
an open window curtain at night, as well as recording audio of Plaintiff in his residence without
his knowledge or consent; and to enforce the award of attorney’s fees and costs entered against
Defendant Angelo Wilson in the matter of Wilson v. Garcia, CUD-13- 645240 against Defendant
Carrie Wilson in her individual capacity or in her capacity as Trustee of The Wilson Family Trust.
which were incurred to defend against Defendants’ frivolous unlawful detainer.
Cea
PLAINTIFF’S [PROPOSED] THIRD AMENDED COMPLAINTnD
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6.
. On November 21, 2013, the Court entered judgment in favor of Mr. Garcia in the unlawful
detainer matter,
On February 14, 2014, Mr. Garcia was awarded $42,500 in attorney’s fees, pursuant to an
attorney’s fee provision in the 2008 lease entered into between Mr. Garcia and Defendant Carrie
Wilson in her individual capacity or in her capacity as Trustee of The Wilson Family Trust. Cost:
were also awarded to Mr. Garcia, so that the judgment was for a total of $49,710.95. The trial
Court refused to include The Wilson Family Trust in the award because The Wilson Family Trust
was not a named party and therefore the Court had no jurisdiction to do so, despite the fact that
The Wilson Family Trust is the party to the 2010 providing for the award of attorney’s fees and
costs to the prevailing party.
. Plaintiff emphasizes at the outset that this action is in not in retaliation for any Defendant’s
exercise of a First Amendment Right such as the service of a notice to quit or a UD complaint—it
is based in the obscene and offensive manner in which Defendants sought to fabricate evidence of}
Plaintiff's “nuisance”: recording audio and video of Mr. Garcia in the privacy of his home,
including instances of Mr. Garcia being sexually intimate with third parties.
PARTIES
Carrie Wilson is the owner and landlord of the subject premises, either in her individual capacity
or in her capacity as trustee of The Wilson Family Trust. She entered into the 2010 lease as
trustee of The Wilson Family Trust, a California citizen (Exhibit B is a true and correct copy of
My 1994 grant deed transferring title of the Subject Premises from Carrie Wilson as an individual
to Carrie Wilson as Trustee of The Wilson Family Trust).
Carrie Wilson, hired Erika Markham and Angelo Wilson to be the off-site managers of the subjec'
premises. Angelo Wilson is a citizen of California. Erika Markham is recently a citizen of
Georgia.
Carrie Wilson, Erika Markham and Angelo Wilson thereafter hired Shaun Markham to be the on-
site manager that was tasked with “keep tabs” on other tenants, and “keep an eye on tenants,”
which included filming video inside Plaintiff's flat at night through open curtains and windows,
and recording audio and video.
Plaintiff has a judgment against Defendant Angelo Wilson in the amount of $49,710.95—and
Plaintiff seeks to enforce this judgment against Defendant Carrie Wilson in her individual
capacity or in her capacity as Trustee of The Wilson Family Trust as owner and landlord of the
subject premises, and as the actual party with whom Mr. Garcia entered into the lease agreement.
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PLAINTIFF’S [PROPOSED] THIRD AMENDED COMPLAINTnD
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10.
12.
16.
. This Court has personal jurisdiction over all Defendants because each Defendant committed the
. This court has subject-matter jurisdiction because the accident occurred in San Francisco, and
. Venue is proper in the Superior of San Francisco because Defendants, or some of them, operate
. Throughout 2012 and 2013, Defendant’s ignored Plaintiffs noise complaints against his upstairs
. Thus, the above-described filming of tenants in their residences is part of Defendants’ modus
Plaintiffs do not know the names and capacities of any unnamed defendants sued herein as DOES
1-20, Plaintiffs will amend this Complaint when the true names and capacities of Defendants
have been ascertained.
JURISDICTION AND VENUE
wrongs set forth herein or is a resident of, and/or is domiciled in and/or does business in, the State}
of California.
This Court has personal jurisdiction over Plaintiff because at all times mentioned herein each
Plaintiff lived in the City and County of San Francisco.
because the amount-in-controversy exceeds $25,000.
and/or own a business in the County and because all the alleged wrongs and events herein
occurred in the County of San Francisco.
GENERAL FACTUAL ALLEGATIONS
neighbor, Defendant Shaun Markham. Instead, Defendants instituted a frivolous UD action
against Plaintiff based on noise.
In April 2013, to manufacture evidence to be used against Mr. Garcia at the UD trial, Defendant
Shaun Markham violated Plaintiff's privacy by filming into Mr. Garcia’s residence at night at
times when Mr. Garcia was sexually intimate with a third party, in addition to recording audio.
Defendant Shaun Markham admitted in his deposition that he did so at the direction and with the
knowledge of the other Defendants, and that Defendant Shaun Markham had previously invaded
the privacy of other tenants in the building in the same way, and under the same direction of the
other Defendants, also for the purpose of manufacturing evidence to use against other tenants in
the building in support of prospective eviction actions. Thus, Defendants had a policy of invading
tenants’ privacy toward the goal of coercing rent-controlled tenants to abandon their tenancies in
order to sell the subject premises with no rent-controlled apartment is obtain a higher selling
price.
operendi of violating tenants privacy rights to maximize both monthly rental rates; and upon
selling the building, to maximize sale value (a building fee of rent controlled tenants sells at a
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PLAINTIFF’S [PROPOSED] THIRD AMENDED COMPLAINTnD
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significantly higher rate). Defendants policy and practice of recording and filming Defendant
inside his residence at night without consent violate California's Invasion of Privacy Act, the
California Constitution, and the San Francisco Administrative Code.
18. Further, Defendants’ refusal to address Plaintiff's noise complaints was part of Defendants’
overall plan to harass Plaintiff into abandoning his rent-controlled apartment. Plaintiff is also
informed and believes that Defendants have refused to cash his rent checks toward this end.
19. When the videos showing Mr. Garcia in his apartment at night (sometimes while being intimate
with third parties) were produced in discovery in the UD case, Mr. Garcia became extremely
upset and suffered emotional distress. Defendants has greatly diminished their quiet enjoyment off
their rent controlled apartments, and has made Plaintiff feel like a monitored person in his own
home.
FIRST CAUSE OF ACTION
(Tenant Harassment Against All Defendants, Pursuant to the San Francisco Administrative
Code § 37.10B)
20. Plaintiffs reallege and reincorporate by this reference the allegations in above paragraphs.
21. This cause of action does not arise from any negligent act by any Defendant. This cause of action
action arises solely from the intentional acts as described herein that were carried out in bad faith
for the specific purpose of injuring Plaintiff, harassing him into abandoning his rent-controlled
apartment.
22. Defendants’ breach of its statutory duties and obligations to Plaintiffs described above was done
intentionally and in bad faith and thereby violated San Francisco Administrative Code §
37.10B(a).
23. Defendants thereby harassment Plaintiffs, and intentionally and knowingly or with a reckless
disregard of San Francisco Administrative Code § 37.10B.
24. As a direct and proximately result of this harassment, Plaintiffs were damaged in an amount to be
proven at trial.
25. Plaintiffs bring this Cause of Action under San Francisco Administrative Code § 37.10B(c)(3),
and seek treble damages, emotional distress damages, reasonable attorneys’ fees, and punitive
damages against Defendants pursuant to San Francisco Administrative Code § 37.10B(c)(5).
26. Defendants, each of them, knew the extent and egregiousness of the conduct alleged in this
Complaint, and knew that such conduct would likely cause physical, mental, and emotional
distress to Plaintiffs, that the alleged conduct did, in fact, cause mental, and emotional distress to
the Plaintiffs, yet without regard to the rights, health, and safety of Plaintiffs chose to engage in
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PLAINTIFF’S [PROPOSED] THIRD AMENDED COMPLAINTnD
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28.
29.
30.
31.
32.
33.
34.
35.
the alleged conduct intentionally, with malice, and in bad faith. Defendants’ conduct was
despicable, thus entitling Plaintiffs to an award of punitive damages.
. The above-described conduct is part of Defendants’ intended business plan to violate Plaintiff's
privacy rights in his own home, and in bad faith, to harass Plaintiff to the point where he would
abandon his rent-controlled apartment.
SECOND CAUSE OF ACTION
(Common Law Inyasion of Privacy)
Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full.
Defendants, and each of them, by way of their aforesaid conduct, intruded upon the privacy of
Plaintiff in a manner that was highly offensive to a reasonable person.
As a result of Defendants’ conduct, and each of them, Plaintiff has suffered damages in an
amount of no less than $25,000.00.
Defendants’ conduct and each of them, was intentional, malicious, fraudulent and oppressive, and
in conscious disregard of Plaintiff's rights. Plaintiff is accordingly entitled to recover punitive
and/or exemplary damages from Defendants pursuant to the terms of California Civil Code
Section 3294, in a sum sufficient to punish Defendants and deter such conduct in the future.
THIRD CAUSE OF ACTION
(Invasion of Privacy Under Civil Code § 1708.8(b))
Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full.
Defendants, and each of them, by way of their aforesaid conduct, intruded upon the privacy of
Plaintiff in a manner that was highly offensive to a reasonable person.
Pursuant to California Civil Code § 1708.8(b): “A person is liable for constructive invasion of
privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable
person, any type of visual image, sound recording, or other physical impression of the plaintiff
engaging in a private, personal, or familial activity, through the use of any device, regardless of
whether there is a physical trespass, if this image, sound recording, or other physical impression
could not have been achieved without a trespass unless the device was used.”
Pursuant to California Civil Code § 1708.8(d): “A person who commits any act described in
subdivision (a), (b), or (c) is liable for up to three times the amount of any general and special
damages that are proximately caused by the violation of this section. This person may also be
liable for punitive damages, subject to proof according to Section 3294. If the plaintiff proves that|
the invasion of privacy was committed for a commercial purpose, the defendant shall also be
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PLAINTIFF’S [PROPOSED] THIRD AMENDED COMPLAINTnD
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36.
38.
39.
40.
Al.
. Defendant Shawn Markham violated this law as the principle actor under subsection (b), and
subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result
of the violation of this section. A person who comes within the description of this subdivision is
also subject to a civil fine of not less than five thousand dollars ($5,000) and not more than fifty
thousand dollars ($50,000).” Plaintiff seeks these remedies.
Pursuant to California Civil Code § 1708.8(e) “A person who directs, solicits, actually induces, or
actually causes another person, regardless of whether there is an employer-employee relationship,
to violate any provision of subdivision (a), (b), or (c) is liable for any general, special, and
consequential damages resulting from each said violation. In addition, the person that directs,
solicits, actually induces, or actually causes another person, regardless of whether there is an
employer-employee relationship, to violate this section shall be liable for punitive damages to the
extent that an employer would be subject to punitive damages pursuant to subdivision (b) of
Section 3294. A person who comes within the description of this subdivision is also subject to a
civil fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars
($50,000).” Plaintiff seeks these remedies.
Defendant Angelo Wilson and Defendant Carrie Wilson in her individual capacity or in her
capacity as Trustee of The Wilson Family Trust are liable under subsection (e) because they
approved, ratified, consented, induced, caused or directed Defendant Shaun Markham’s
misconduct, who was their agent.
Defendants, and each of them, by way of their aforesaid conduct, intruded upon the privacy of
Plaintiff in a manner that was highly offensive to a reasonable person. Defendants’ conduct and
each of them, was intentional, malicious, fraudulent and oppressive, and in conscious disregard of
Plaintiff's rights. Plaintiff is accordingly entitled to recover punitive and/or exemplary damages
from Defendants pursuant to the terms of California Civil Code Section 3294, in a sum sufficient
to punish Defendants and deter such conduct in the future.
FOURTH CAUSE OF ACTION
(Invasion of Privacy Under Article 1, § 1 of the California Constitution)
Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full.
Defendants, and each of them, by way of their aforesaid conduct, intruded upon the privacy of
Plaintiff in a manner that was highly offensive to a reasonable person.
Plaintiff had a constitutionally protected interest in the privacy of his home without observation,
intrusion, or interference by Defendants, and each of them.
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PLAINTIFF’S [PROPOSED] THIRD AMENDED COMPLAINTnD
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42.
43.
44.
45.
46.
47.
48.
As a result of Defendants’ conduct, and each of them, Plaintiff has suffered damages in an
amount of no less than $25,000.00.
Defendants’ conduct and each of them, was intentional, malicious, fraudulent and oppressive, and
in conscious disregard of Plaintiff's rights. Plaintiff is accordingly entitled to recover punitive
and/or exemplary damages from Defendants pursuant to the terms of California Civil Code
Section 3294, in a sum sufficient to punish Defendants and deter such conduct in the future.
FIFTH CAUSE OF ACTION
(Breach of Contract)
Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full.
The parties had a valid Lease for the Plaintiffs tenancy at the Subject Premises.
Defendants breached the Lease by failing to honor their obligation to address Plaintiff's noise
complaint against Defendant Shaun Markham. Defendants breached the lease by failing to cash
Plaintiff's rent checks.
Defendants furthered breach the Lease's written and implied covenant of quiet enjoyment by
failing to honor their obligation to address Plaintiff's noise complaint against Defendant Shaun
Markham.
As a result of Defendants' breach of the Lease, Plaintiff was damaged by the loss of value of his
tenancy at the Subject Premises in an amount to be proven at trial.
SIXTH CAUSE OF ACTION
(To Enforce Debt Incurred Pursuant to Defendants’ Breach Against Defendant Carrie Wilson
49.
50.
Sl.
52.
53.
in her individual capacity or in her capacity as Trustee of The Wilson Family Trust)
Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full.
The parties had a valid Lease for the Plaintiff's tenancy at the Subject Premises, which contains a
provision providing for an award of reasonable attorney’s fees and costs to the prevailing party to
the UD action. Mr. Garcia prevailing and incurrent significant attorney’s fees and costs.
In this cause of action, Plaintiff seeks to enforce the award of attorney’s fees and costs against the
contracting party with whom Mr. Garcia entered the Lease in 2010 for possession of the Subject
Premises: The Wilson Family Trust.
SEVENTH CAUSE OF ACTION
(Wrongful Eviction under the San Francisco Administrative Code)
Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full.
Defendants wrongfully endeavored to recover possession of the Subject Premises in violation of
Sections 37.9 or, in the alternative, 37.10 of the San Francisco Administrative Code.
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PLAINTIFF’S [PROPOSED] THIRD AMENDED COMPLAINTnD
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54. Defendants, each of them, acted in knowing violation of, or in reckless disregard of Sections 37.9
or, in the alternative, 37.10A of the San Francisco Administrative Code. Plaintiff sustained
emotions distress damages in addition to the above-described damages. Plaintiff seeks these
trebled damages pursuant to San Francisco Administrative Code Section 37.9(f).
Wherefore, Plaintiff requests judgment against Defendants as set forth:
1. For general and special damages in an amount according to proof under San Francisco
Administrative Code § 37.10B(c)(5);
2. For punitive damages allowed by law and in an amount sufficient to punish and deter defendants
from engaging in similar misconduct in the future and to punish them for their misconduct under
San Francisco Administrative Code § 37.10B(c)(5) and California Civil Code § 3294;
For damages under California Penal Code § 637.2, 674;
For loss of use damages, where appropriate;
Trebled damages under San Francisco Administrative Code Section 37.9(f);
For interest at the legal rate, including prejudgment interest,
For costs of suit incurred;
eS ee ee
For attorney’s fees allowed by law under; San Francisco Administrative Code §§ 37.9,
37.10B(c)(5); and under the leasehold agreement;
9. For all additional remedies under Cal.C.C.P. § 1029.8 against The Wilson Family Trust/Carrie
Wilson and Angelo Wilson;
10. For such other and further relief as the Court deems just and equitable.
DATED: January 12,2017 LAW OFFICES OF BENNY MARTIN
BENJAMIN MARTIN
Attorney for Plaintiff
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PLAINTIFF’S [PROPOSED] THIRD AMENDED COMPLAINTEXHIBIT BnD
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LAW OFFICES OF BENNY MARTIN
Benjamin Martin (SBN 257452)
647 Santa Clara Ave
Los Angeles, CA 90291
510-227-4406
knowyourrightsinsf@gmail.com
Attorney for Plaintiff, Phillip Garcia
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
PHILLIP GARCIA, an individual, Case # CGC-14-538560
Plaintiff, [PROPOSED] AMENDMENT TO SECOND
AMENDED COMPLAINT SUBSTITUTING
TRUE NAMES OF DEFENDANTS FOR
FICTITIOUS NAMES
VS.
1-20, et. al.
)
)
)
)
)
)
)
ANGELO WILSON, an individual, and DOES}
)
)
Defendants. }
)
On filing the complaint, and subsequent amended complaints, plaintiff was ignorant of the
true names of certain defendants and designated such defendants in the complaint by fictitious names,
DOE I through DOE 20. Plaintiff, having discovered the true names of said defendants to be hereby
amends the Second Amended Complaint by inserting the true names in the place of the fictitious
names wherever they appear in the complaint.
DOE 1 is substituted for Carrie Wilson.
DATED: January 10, 2017 LAW OFFICES OF BENNY MARTIN
BENJAMIN MARTIN
Attorney for Plaintiff
eqs
[PROPOSED] AMENDMENT TO SECOND AMENDED COMPLAINT SUBSTITUTING TRUE NAMES OF
DEFENDANTS FOR FICTITIOUS NAMESEXHIBIT CLAW OFFICES OF BENNY MARTIN
Benjamin Martin (SBN 257452) ELECTRONICALLY
195 41st Street FILED
P.O. Box 11120 ‘Supertor Court of Caltfomia,
Oakland, CA 94611 County of San Francisco
knowyourrightsinsf@gmail.com 01/14/2016
Clerk of the Court
BY-WILLIAM TRUPEK
Attorney for Plaintiff, Phillip Garcia Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
PHILLIP GARCIA, an individual, Case # CGC-14-538560
PLAINTIFF’S SECOND AMENDED
COMPLAINT
vs.
)
)
Plaintiff, 3
)
)
)
CARRIE WILSON, in her capacity as trustee
of THE WILSON FAMILY TRUST, SHAUN ) jury TRIAL REQUESTED
MARKHAN, an individual, ERIKA
MARKHAM, an individual, and ANGELO
WILSON, an individual, and DOES 1-20,
Defendants.
eee
NOW HERE COMES PLAINTIFF, PHILLIP GARCIA (Plaintiff) WHO ALLEGES:
INTRODUCTION
1. This action arises out of a landlord-tenant relationship between Plaintiff Phil Garcia, the tenant,
and The Wilson Family Trust, the landlord. The subject premises located at 1665 Hayes Street,
San Francisco, CA 94117 (“subject premises”).
Nv
Plaintiff sues Defendants for breaches of the written 2010 lease entered into between Mr. Garcia
and The Wilson Family Trust (attached as Exhibit A) for refusing to address Mr, Garcia’s noise
complaints; for invading Defendant’s privacy by filming Mr. Garcia inside his residence through
an open window curtain at night, as well as recording audio of Plaintiff in his residence without
his knowledge or consent; and to enforce the award of attorney’s fees and costs entered against
Defendant Angelo Wilson in the matter of Wilson v. Garcia, CUD-13- 645240 against The
Wilson Family Trust, which were incurred to defend against Defendants’ frivolous unlawful
detainer.
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PLAINTIFF’S SECOND AMENDED COMPLAINTa
On November 21, 2013, the Court entered judgment in favor of Mr. Garcia in the unlawful
detainer matter.
On February 14, 2014, Mr. Garcia was awarded $42,500 in attorney’s fees, pursuant to an
attorney's fee provision in the 2008 lease entered into between Mr. Garcia and The Wilson
Family Trust. Costs were also awarded to Mr. Garcia, so that the judgment was for a total of
$49,710.95. The trial Court refused to include The Wilson Family Trust in the award because
The Wilson Family Trust was not a named party and therefore the Court had no jurisdiction to do
so, despite the fact that The Wilson Family Trust is the party to the 2010 providing for the award
of attorney’s fees and costs to the prevailing party.
Plaintiff emphasizes at the outset that this action is in not in retaliation for any Defendant’s
exercise of a First Amendment Right such as the service of a notice to quit or a UD complaint—it
is based in the obscene and offensive manner in which Defendants sought to fabricate evidence of|
Plaintiff's “nuisance”: recording audio and video of Mr. Garcia in the privacy of his home,
including instances of Mr. Garcia being sexually intimate with third parties.
PARTIES
Carrie Wilson is the trustee of The Wilson Family Trust, owner and landlord of the subject
premises. She entered into the 2010 lease as trustee of The Wilson Family Trust, a California
citizen (Exhibit B is a true and correct copy of My 1994 grant deed transferring title of the
Subject Premises from Carrie Wilson as an individual to Carrie Wilson as Trustee of The Wilson
Family Trust).
Carrie Wilson, hired Erika Markham and Angelo Wilson to be the off-site managers of the subject
premises. Angelo Wilson is a citizen of California. Erika Markham is recently a citizen of
Georgia.
Carrie Wilson, Erika Markham and Angelo Wilson thereafter hired Shaun Markham to be the on-
site manager that was tasked with “keep tabs” on other tenants, and “keep an eye on tenants,”
which included filming video inside Plaintiff's flat at night through open curtains and windows,
and recording audio and video.
Plaintiff has a judgment against Defendant Angelo Wilson in the amount of $49,710.95—and
Plaintiff seeks to enforce this judgment against The Wilson Family Trust as owners and landlord.
of the subject premises, and as the actual party with whom Mr. Garcia entered into the lease
agreement.
PLAINTIFF’S SECOND AMENDED COMPLAINT10.
vv
13.
14.
17.
. This Court has personal jurisdiction over all Defendants because each Defendant committed the
. This Court has personal jurisdiction over Plaintiff because at all times mentioned herein each
. Throughout 2012 and 2013, Defendant’s ignored Plaintiff's noise complaints against his upstairs
. In April 2013, to manufacture evidence to be used against Mr. Garcia at the UD trial, Defendant
Plaintiffs do not know the names and capacities of any unnamed defendants sued herein as DOES
1-20. Plaintiffs will amend this Complaint when the true names and capacities of Defendants
have been ascertained.
JURISDICTION AND VENUE
wrongs set forth herein or is a resident of, and/or is domiciled in and/or does business in, the State
of California.
Plaintiff lived in the City and County of San Francisco.
This court has subject-matter jurisdiction because the accident occurred in San Francisco, and
because the amount-in-controversy exceeds $25,000.
Venue is proper in the Superior of San Francisco because Defendants, or some of them, operate
and/or own a business in the County and because all the alleged wrongs and events herein
occurred in the County of San Francisco.
GENERAL FACTUAL ALLEGATIONS
neighbor, Defendant Shaun Markham. Instead, Defendants instituted a frivolous UD action
against Plaintiff based on noise.
Shaun Markham violated Plaintiff's privacy by filming into Mr. Garcia’s residence at night at
times when Mr. Garcia was sexually intimate with a third party, in addition to recording audio.
Defendant Shaun Markham admitted in his deposition that he did so at the direction and with the
knowledge of the other Defendants, and that Defendant Shaun Markham had previously invaded
the privacy of other tenants in the building in the same way, and under the same direction of the
other Defendants, also for the purpose of manufacturing evidence to use against other tenants in
the building in support of prospective eviction actions. Thus, Defendants had a policy of invading
tenants’ privacy toward the goal of coercing rent-controlled tenants to abandon their tenancies in
order to sell the subject premises with no rent-controlled apartment is obtain a higher selling
price.
Thus, the above-described filming of tenants in their residences is part of Defendants’ modus
operendi of violating tenants privacy rights to maximize both monthly rental rates; and upon
selling the building, to maximize sale value (a building fee of rent controlled tenants sells at a
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PLAINTIFF’S SECOND AMENDED COMPLAINTsignificantly higher rate). Defendants' policy and practice of recording and filming Defendant
inside his residence at night without consent violate California's Invasion of Privacy Act, the
California Constitution, and the San Francisco Administrative Code.
- Further, Defendants’ refusal to address Plaintiff's noise complaints was part of Defendants’
overall plan to harass Plaintiff into abandoning his rent-controlled apartment. Plaintiff is also
informed and believes that Defendants have refused to cash his rent checks toward this end.
. When the videos showing Mr. Garcia in his apartment at night (sometimes while being intimate
with third parties) were produced in discovery in the UD case, Mr. Garcia became extremely
upset and suffered emotional distress. Defendants has greatly diminished their quiet enjoyment of
their rent controlled apartments, and has made Plaintiff feel like a monitored person in his own
home.
FIRST CAUSE OF ACTION
(Tenant Harassment Against All Defendants, Pursuant to the San Francisco Administrative
Code § 37.10B)
20. Plaintiffs reallege and reincorporate by this reference the allegations in above paragraphs.
21. This cause of action does not arise from any negligent act by any Defendant. This cause of action|
action arises solely from the intentional acts as described herein that were carried out in bad faith
for the specific purpose of injuring Plaintiff, harassing him into abandoning his rent-controlled
apartment.
. Defendants’ breach of its statutory duties and obligations to Plaintiffs described above was done
intentionally and in bad faith and thereby violated San Francisco Administrative Code §
37.10B(a).
. Defendants thereby harassment Plaintiffs, and intentionally and knowingly or with a reckless
disregard of San Francisco Administrative Code § 37.10B.
. As a direct and proximately result of this harassment, Plaintiffs were damaged in an amount to be
proven at trial.
. Plaintiffs bring this Cause of Action under San Francisco Administrative Code § 37.10B(c)(3),
and seek treble damages, emotional distress damages, reasonable attorneys’ fees, and punitive
damages against Defendants pursuant to San Francisco Administrative Code § 37.10B(c)(5).
. Defendants, each of them, knew the extent and egregiousness of the conduct alleged in this
Complaint, and knew that such conduct would likely cause physical, mental, and emotional
distress to Plaintiffs, that the alleged conduct did, in fact, cause mental, and emotional distress to
the Plaintiffs, yet without regard to the rights, health, and safety of Plaintiffs chose to engage in
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PLAINTIFF’S SECOND AMENDED COMPLAINTthe alleged conduct intentionally, with malice, and in bad faith. Defendants’ conduct was
despicable, thus entitling Plaintiffs to an award of punitive damages.
27. The above-described conduct is part of Defendants’ intended business plan to violate Plaintiff's
28
30.
31.
privacy rights in his own home, and in bad faith, to harass Plaintiff to the point where he would
abandon his rent-controlled apartment.
SECOND CAUSE OF ACTION
(Common Law Invasion of Privacy)
. Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full.
29.
Defendants, and each of them, by way of their aforesaid conduct, intruded upon the privacy of
Plaintiff in a manner that was highly offensive to a reasonable person.
As a result of Defendants’ conduct, and cach of them, Plaintiff has suffered damages in an
amount of no less than $25,000.00.
Defendants’ conduct and each of them, was intentional, malicious, fraudulent and oppressive, and|
in conscious disregard of Plaintiff's rights. Plaintiff is accordingly entitled to recover punitive
and/or exemplary damages from Defendants pursuant to the terms of California Civil Code
Section 3294, in a sum sufficient to punish Defendants and deter such conduct in the future.
THIRD CAUSE OF ACTION
(Invasion of Privacy Under Civil Code § 1708.8(b))
. Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full.
. Defendants, and each of them, by way of their aforesaid conduct, intruded upon the privacy of
Plaintiff in a manner that was highly offensive to a reasonable person.
. Pursuant to California Civil Code § 1708.8(b): “A person is liable for constructive invasion of
privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable
person, any type of visual image, sound recording, or other physical impression of the plaintiff
engaging in a private, personal, or familial activity, through the use of any device, regardless of
whether there is a physical trespass, if this image, sound recording, or other physical impression
could not have been achieved without a trespass unless the device was used.”
. Pursuant to California Civil Code § 1708.8(d): “A person who commits any act described in
subdivision (a), (b), or (c) is liable for up to three times the amount of any general and special
damages that are proximately caused by the violation of this section. This person may also be
liable for punitive damages, subject to proof according to Section 3294. If the plaintiff proves that
the invasion of privacy was committed for a commercial purpose, the defendant shall also be
-5-
PLAINTIFF’S SECOND AMENDED COMPLAINT36.
de
39.
40.
4
subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result
of the violation of this section. A person who comes within the description of this subdivision is
also subject to a civil fine of not less than five thousand dollars ($5,000) and not more than fifty
thousand dollars ($50,000).” Plaintiff seeks these remedies.
Pursuant to California Civil Code § 1708.8(e) “A person who directs, solicits, actually induces, or]
actually causes another person, regardless of whether there is an employer-employee relationship,
to violate any provision of subdivision (a), (b), or (c) is liable for any general, special, and
consequential damages resulting from each said violation. In addition, the person that directs,
solicits, actually induces, or actually causes another person, regardless of whether there is an
employer-employee relationship, to violate this section shall be liable for punitive damages to the
extent that an employer would be subject to punitive damages pursuant to subdivision (b) of
Section 3294. A person who comes within the description of this subdivision is also subject to a
civil fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars
($50,000).” Plaintiff seeks these remedies.
Defendant Shawn Markham violated this law as the principle actor under subsection (b), and
Defendant Angelo Wilson and Erika Markham and The Wilson Family Trust are liable under
subsection (e) because they approved, ratified, consented, induced, caused or directed Defendant
Shaun Markham’s misconduct, who was their agent.
. Defendants, and each of them, by way of their aforesaid conduct, intruded upon the privacy of
Plaintiff in a manner that was highly offensive to a reasonable person. Defendants’ conduct and
each of them, was intentional, malicious, fraudulent and oppressive, and in conscious disregard of|
Plaintiff's rights. Plaintiff is accordingly entitled to recover punitive and/or exemplary damages
from Defendants pursuant to the terms of California Civil Code Section 3294, in a sum sufficient
to punish Defendants and deter such conduct in the future.
FOURTH CAUSE OF ACTION
(Invasion of Privacy Under Article 1, § 1 of the California Constitution)
Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full.
Defendants, and each of them, by way of their aforesaid conduct, intruded upon the privacy of
Plaintiff in a manner that was highly offensive to a reasonable person.
. Plaintiff had a constitutionally protected interest in the privacy of his home without observation,
intrusion, or interference by Defendants, and each of them.
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PLAINTIFF’S SECOND AMENDED COMPLAINT42. As a result of Defendants’ conduct, and each of them, Plaintiff has suffered damages in an
amount of no less than $25,000.00.
43. Defendants’ conduct and each of them, was intentional, malicious, fraudulent and oppressive, and)
in conscious disregard of Plaintiff's rights. Plaintiff is accordingly entitled to recover punitive
and/or exemplary damages from Defendants pursuant to the terms of California Civil Code
Section 3294, in a sum sufficient to punish Defendants and deter such conduct in the future.
FIFTH CAUSE OF ACTION
(Breach of Contract)
44, Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full.
45. The parties had a valid Lease for the Plaintiff's tenancy at the Subject Premises.
46. Defendants breached the Lease by failing to honor their obligation to address Plaintiff's noise
complaint against Defendant Shaun Markham. Defendants breached the lease by failing to cash
Plaintiff's rent checks.
47. Defendants furthered breach the Lease's written and implied covenant of quiet enjoyment by
failing to honor their obligation to address Plaintiff's noise complaint against Defendant Shaun
Markham,
48. As a result of Defendants’ breach of the Lease, Plaintiff was damaged by the loss of value of his
tenancy at the Subject Premises in an amount to be proven at trial.
SIXTH CAUSE OF ACTION
(To Enforce Debt Incurred Pursuant to Defendants’ Breach Against Defendant The Wilson
Family Trust)
49. Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full.
50. The parties had a valid Lease for the Plaintiff's tenancy at the Subject Premises, which contains a
provision providing for an award of reasonable attorney’s fees and costs to the prevailing party to
the UD action. Mr. Garcia prevailing and incurrent significant attorney’s fees and costs.
51. In this cause of action, Plaintiff seeks to enforce the award of attorney’s fees and costs against the
contracting party with whom Mr. Garcia entered the Lease in 2010 for possession of the Subject
Premises: The Wilson Family Trust.
SEVENTH CAUSE OF ACTION
(Wrongful Eviction under the San Francisco Administrative Code)
52. Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full.
53. Defendants wrongfully endeavored to recover possession of the Subject Premises in violation of
Sections 37.9 or, in the alternative, 37.10 of the San Francisco Administrative Code.
PLAINTIFF’S SECOND AMENDED COMPLAINT54. Defendants, each of them, acted in knowing violation of, or in reckless disregard of Sections 37.9
or, in the alternative, 37.10A of the San Francisco Administrative Code. Plaintiff sustained
emotions distress damages in addition to the above-described damages. Plaintiff seeks these
trebled damages pursuant to San Francisco Administrative Code Section 37.9(f).
Wherefore, Plaintiff requests judgment against Defendants as set forth:
enn wf Ww
For general and special damages in an amount according to proof under San Francisco
Administrative Code § 37.10B(c)(5);
For punitive damages allowed by law and in an amount sufficient to punish and deter defendants
from engaging in similar misconduct in the future and to punish them for their misconduct under
San Francisco Administrative Code § 37.10B(c)(5) and California Civil Code § 3294;
For damages under California Penal Code § 637.2, 674;
For loss of use damages, where appropriate;
Trebled damages under San Francisco Administrative Code Section 37.9(f);
For interest at the legal rate, including prejudgment interest,
For costs of suit incurred;
For attomey’s fees allowed by law under; San Francisco Administrative Code §§ 37.9,
37.10B(c)(S); and under the leasehold agreement;
For all additional remedies under Cal.C.C.P. § 1029.8 against The Wilson Family Trust and
Angelo Wilson;
10. For such other and further relief as the Court deems just and equitable.
DATED: January 13, 2016 LAW OFFICES OF BENNY MARTIN
BENJAMIN MARTIN
Attorney for Plaintiff
-~B-
PLAINTIFF’S SECOND AMENDED COMPLAINTEXHIBITA‘THiS FORM FOR USE
INCALIFORNIA ONLY
RESIDENTIAL LEASE-RENTAL AGREEMENT
AND DEPOSIT RECEIPT Real Et Fore
AGENCY RELATIONSHIP CONFIRMATION. The following agency relationship is hereby confirmed for this transaction and supersedes any
prior agency election (If no agency relationship insert “NONE"):
LISTING AGENT: is the agent of (check one):
(Print Firm Name)
the Owner exclusively; or [_]both the Tenant and the Owner.
LEASING AGENT: Davis Realty Company Inc. (if not the same as the Listing Agent) is the agent of (check one):
(Print Firm Name) 7
[the Tenant exclusively; or [_]the Owner exclusively; or (J both the Tenant and the Owner.
Note: This confirmation DOES NOT take the place of the AGENCY DISCLOSURE form (such as P.P. Form 110.42 CAL) required by
Jaw if the term exceeds one year.
RECEIVED FROM Phillip Garcia __ hereinafter referred to as Tenant,
the sum of $__ 4,200.00 ( Four thousand two hundred--——
dollars), evidenced by cashier's check or cash , a8 a deposit. Upon acceptance of this Agreement, the Owner of the
premises, will apply the deposit as follows:
TOTAL RECEIVED BALANCE DUE PRIOR TO OCCUPANCY
Rent for the period from 8-1-10 to__ 8-31-10 $. 2.100.00 $. $. 2,100.00
Security deposit (not applicable toward last month's rent)... $____2,100.00 $. 5 2,100.00
Other. N/A 8. $. $.
TOTAL... eee latte $__4,200.00 $. $ 4,200.00
In the event this Agreement is not accepted by the Owner, within 3 days, the total deposit received will be refunded.
Tenant offers to rent from the Owner the premises situated in the City of San Francisco 7
County of ____San Francisco __, State of California, commonly known as 1655 Hayes Street, San Francisco, California 94117.
three bedroom flat with stove tric cai raperies
upon the following terms and conditions:
1. TERM. The term will commence on August 1, 2010. and continue (check one of the two following alternatives):
(CULEASE until for a total rent of §.
dollars).
EXIRENTAL on a month-to-month basis, until either party terminates this Agreement by giving the other party written notice as
required by law,
2. RENT. Rent will be $___2,100,00_._, permonth, payable in advance by personal check, cashier's check, cash ormoney order, on
“the __1st___ day of each calendar month to Owner or his or her authorized agent, by mail or personal delivery to the following address:
Frankie or Carrie Wilson, 1673 Hayes Street, San Franc lifornia 94117 lo Wilson 261
or at such other place as may be designated by Owner in writing from time to time. Payment by personal delivery may be made (check
one): (_} Monday through Friday, 9:00 a.m. to 5:00 p.m., or[_Jat the following times:
. Inthe event rent is not received by Owner in full within _5 _ days after due
date, Tenant agrees that it would be impracticable or extremely difficult to fix the actual damages to Owner caused by that failure, and
Tenant agrees to pay a late charge of $__105.00__ Tenant further agrees to pay $ 25.00 for each dishonored bank check, All late fees
and returned check fees will be considered additional rent. The late charge period is nota grace period, and Owner is entitled to make
written demand for any rent if not paid when due and to collect interest thereon, Any unpaid balance including late charges, will bear
interest at 10% per annum, or the maximum rate allowed by law, whichever is less.
3. MULTIPLE OCCUPANCY, It is expressly understood that this Agreement is between the Owner and each signatory jointly and severally
Each signatory will be responsible for timely payment of rent and performance of all other provisions of this Agreement.
4, UTILITIES. Tenant will be responsible for the payment of all utilities and services, except: waterandgarbhage
which will be paid by Owner.
5. USE. The premises will be used exclusively as a residence for no more than 4 persons. Guests staying more than a total of
419 days in a calendar year without written consent of Owner will constitute a violation of this Agreement. Tenant shall park
operable automobiles in assigned spaces only. Trailers, boats, campers, and inoperable vehicles are not allowed without the written
consent of Owner. Tenant may not repair motor vehicles on the leased premises.
6. ANIMALS. No animals will be brought on the premises withoitt the prior consent of the Owner; except No pets.
7, RULES AND REGULATIONS. In the event that the premises is a portion of a building containing more than one unit, or is located in a
common interest development, Tenant agrees to abide by all applicable rules, whether adopted before or after the date of this
Agreement, including rules with respect to noise, odors, disposal of refuse, animals, parking, and use of common areas. Tenant will
Tenant Lee IL IL IL } has read this page.
CAUTION: The copyright laws of the United States forbid the unauthorized reproduction of this form by any means including
‘scanning or computerized formats.
Page 1 of 4
FORM 105.1 CAL (6-200) COPYRIGHT BY PROFESSIONAL PUBLISHING, NOVATO, CA PROFESSIONAL
Form generated by: TrueForms™ www.TrueForms.com 800-499-9612 q PUBLISHING
Wilson 016Property Address 1665 Hayes Street San Francisco, California 94117
Pay any penaities , including attorney fees, imposed by homeowners’ association for violations by tenant or tenant's guests.
8. ORDINANCES AND STATUTES. Tenant will comply with all statutes, ordinances, and requirements of all municipal, state and federal
authorities now in force, or which may iaier be in force, regar ses f
ing ihe use of ihe premises. Tenant will nol use the premises for any
unlawful purpose including, but not limited to, using, storing or selling prohibited drugs. If the premises are located in a rent contro!
area, the Tenant should contact the Rent and Arbitration Board for his or her legal rights.
9. ASSIGNMENT AND SUBLETTING. Tenant will not assign this Agreement or sublet any portion of the premises without pri
Preview
nD 18 19 20 LAW OFFICES OF BENNY MARTIN ELECTRONICALLY Benjamin Martin (SBN 257452) 647 pene ee Ave 7 eee Los Angeles, CA 90291 Lp 01 510-227-4406 01/13/2017 knowyourrightsinsf@gmail.com Gielk of the Court BY:SANDRA SCHIRO Attorney for Plaintiff, Phillip Garcia Deputy Clerk PHILLIP GARCIA, an individual, ANGELO WILSON, an individual, and DOES 1-20, et. al. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION Case # CGC-14-538560 Plaintiff, DECLARATION OF PLAINTIFF’S COUNSEL BENNY MARTIN IN SUPPORT OF MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT, OR IN THE ALTERNATIVE, TO FILE AN AMENDMENT SUBSTITUTING CARRIE WILSON FOR DOE 1 VS. Date: February 8, 2017 Time: 9:30 a.m. Dept: 501 Trial: March 27, 2017 Date Original Complaint Filed: June 9, 2014 Defendants. eee I, Benny Martin, declare: 1. DECLARATION OF PLAINTIFF’S COUNSEL BENNY MARTIN IN SUPPORT OF MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT, OR IN THE ALTERNATIVE, TO FILE AN AMENDMENT SUBSTITUTING . Attached hereto as Exhibit C is a true and correct copy of Plaintiff's Second Amended Complaint lam an attorney at law fully licensed to practice before the Courts of the state of California, and am attorney of record for Plaintiff in the instant matter. All such matters are based on my personal] knowledge. If called as a witness to testify, and could and would competently testify to the matters set forth herein. The [Proposed] Third Amended Complaint is attached hereto as Exhibit A. The [Proposed] Amendment to the Second Amended Complaint as Exhibit B. (“SAC”) was filed on January 14, 2016. In the course of discovery, Plaintiff has learned that Defendant The Wilson Family Trust is a non- existent and fraudulent entity. For example, in discovery, in February 2016, Defendant The Wilson Family Trust could not produce a single document “establishing or registering” the Trust Coy CARRIE WILSON FOR DOE |nD 18 19 20 in any jurisdiction. Attached hereto as Exhibit D is a true and correct copy of Supplemental Responses of Carrie Wilson in her capacity as trustee of The Wilson Family Trust to Plaintiff’s First Set of Request fro Production of Documents. 5. Thereafter, Plaintiff attempted to take the deposition of Carrie Wilson to inquire on the existence of the Trust. Due to health concerns, Carrie Wilson could not be deposed, and cancelled the deposition each time, the last of which occurred in December 2016. Attached hereto as Exhibit E is a true and correct copy of a December 7, 2016, e-mail from Defense counsel cancelling the latest attempt to depose Carrie Wilson. 6. Asa result, Plaintiff undertook independent investigation, outside regular discovery. Plaintiff hired multiple document researchers to search public records of the Trust’s existence in the counties in which the trust owned real property—as set forth in 2016 discovery responses. Attached hereto as Exhibit F is a true and correct copy of Carrie Wilson in her capacity as Trustee of the Wilson Family Trust’s Responses to Special Interrogatories Propounded by Plaintiff, Phillip Garcia, Set Two. 7. On December 31, 2016, Plaintiff's counsel wrote to defendants’ counsel: Please also consider propounding discovery on behalf of Carrie Wilson in her individual capacity since the discovery deadline is approaching. But we would be included to extending the deadline for that discovery too to avoid any prejudice to naming Carrie Wilson in her individual capacity so close to trial. Attached hereto as Exhibit G is a true and correct copy of the December 31, 2016, e-mail. 8. On January 12, 2016, Plaintiff's counsel also wrote defendant’s counsel to stipulate to shortening time on this motion to provide more time to conduct discovery. Attached hereto as Exhibit H is a true and correct copy of the January 12, 2017, e-mail. I declare under the penalty of perjury under the laws of the state of California that the foregoing is true and correct. Executed in Berlin, Germany. DATED: January 12, 2017 LAW OFFICES OF BENNY MARTIN BENJAMIN MARTIN Attorney for Plaintiff -2- DECLARATION OF PLAINTIFF’S COUNSEL BENNY MARTIN IN SUPPORT OF MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT, OR IN THE ALTERNATIVE, TO FILE AN AMENDMENT SUBSTITUTING CARRIE WILSON FOR DOE |EXHIBIT AnD 18 19 20 LAW OFFICES OF BENNY MARTIN Benjamin Martin (SBN 257452) 647 Santa Clara Ave Los Angeles, CA 90291 510-227-4406 knowyourrightsinsf@gmail.com Attorney for Plaintiff, Phillip Garcia SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION PHILLIP GARCIA, an individual, Case # CGC-14-538560 Plaintiff, PLAINTIFF’S [PROPOSED] THIRD AMENDED COMPLAINT VS. her capacity as trustee of THE WILSON FAMILY TRUST, SHAUN MARKHAM. an individual, ANGELO WILSON, an individual and DOES 1-20, ) ) ) ) ) ) ) CARRIE WILSON, in her individual and in ; ; JURY TRIAL REQUESTED ) ) ) ) ) Defendants. ) NOW HERE COMES PLAINTIFF, PHILLIP GARCIA (Plaintiff) WHO ALLEGES: INTRODUCTION 1. This action arises out of a landlord-tenant relationship between Plaintiff Phil Garcia, the tenant, and The Wilson Family Trust, the landlord. The subject premises located at 1665 Hayes Street, San Francisco, CA 94117 (“subject premises”). 2. Plaintiff sues Defendants for breaches of the written 2010 lease entered into between Mr. Garcia and The Wilson Family Trust (attached as Exhibit A) for refusing to address Mr. Garcia’s noise complaints; for invading Defendant’s privacy by filming Mr. Garcia inside his residence through an open window curtain at night, as well as recording audio of Plaintiff in his residence without his knowledge or consent; and to enforce the award of attorney’s fees and costs entered against Defendant Angelo Wilson in the matter of Wilson v. Garcia, CUD-13- 645240 against Defendant Carrie Wilson in her individual capacity or in her capacity as Trustee of The Wilson Family Trust. which were incurred to defend against Defendants’ frivolous unlawful detainer. Cea PLAINTIFF’S [PROPOSED] THIRD AMENDED COMPLAINTnD 18 19 20 6. . On November 21, 2013, the Court entered judgment in favor of Mr. Garcia in the unlawful detainer matter, On February 14, 2014, Mr. Garcia was awarded $42,500 in attorney’s fees, pursuant to an attorney’s fee provision in the 2008 lease entered into between Mr. Garcia and Defendant Carrie Wilson in her individual capacity or in her capacity as Trustee of The Wilson Family Trust. Cost: were also awarded to Mr. Garcia, so that the judgment was for a total of $49,710.95. The trial Court refused to include The Wilson Family Trust in the award because The Wilson Family Trust was not a named party and therefore the Court had no jurisdiction to do so, despite the fact that The Wilson Family Trust is the party to the 2010 providing for the award of attorney’s fees and costs to the prevailing party. . Plaintiff emphasizes at the outset that this action is in not in retaliation for any Defendant’s exercise of a First Amendment Right such as the service of a notice to quit or a UD complaint—it is based in the obscene and offensive manner in which Defendants sought to fabricate evidence of} Plaintiff's “nuisance”: recording audio and video of Mr. Garcia in the privacy of his home, including instances of Mr. Garcia being sexually intimate with third parties. PARTIES Carrie Wilson is the owner and landlord of the subject premises, either in her individual capacity or in her capacity as trustee of The Wilson Family Trust. She entered into the 2010 lease as trustee of The Wilson Family Trust, a California citizen (Exhibit B is a true and correct copy of My 1994 grant deed transferring title of the Subject Premises from Carrie Wilson as an individual to Carrie Wilson as Trustee of The Wilson Family Trust). Carrie Wilson, hired Erika Markham and Angelo Wilson to be the off-site managers of the subjec' premises. Angelo Wilson is a citizen of California. Erika Markham is recently a citizen of Georgia. Carrie Wilson, Erika Markham and Angelo Wilson thereafter hired Shaun Markham to be the on- site manager that was tasked with “keep tabs” on other tenants, and “keep an eye on tenants,” which included filming video inside Plaintiff's flat at night through open curtains and windows, and recording audio and video. Plaintiff has a judgment against Defendant Angelo Wilson in the amount of $49,710.95—and Plaintiff seeks to enforce this judgment against Defendant Carrie Wilson in her individual capacity or in her capacity as Trustee of The Wilson Family Trust as owner and landlord of the subject premises, and as the actual party with whom Mr. Garcia entered into the lease agreement. Looe PLAINTIFF’S [PROPOSED] THIRD AMENDED COMPLAINTnD 18 19 20 10. 12. 16. . This Court has personal jurisdiction over all Defendants because each Defendant committed the . This court has subject-matter jurisdiction because the accident occurred in San Francisco, and . Venue is proper in the Superior of San Francisco because Defendants, or some of them, operate . Throughout 2012 and 2013, Defendant’s ignored Plaintiffs noise complaints against his upstairs . Thus, the above-described filming of tenants in their residences is part of Defendants’ modus Plaintiffs do not know the names and capacities of any unnamed defendants sued herein as DOES 1-20, Plaintiffs will amend this Complaint when the true names and capacities of Defendants have been ascertained. JURISDICTION AND VENUE wrongs set forth herein or is a resident of, and/or is domiciled in and/or does business in, the State} of California. This Court has personal jurisdiction over Plaintiff because at all times mentioned herein each Plaintiff lived in the City and County of San Francisco. because the amount-in-controversy exceeds $25,000. and/or own a business in the County and because all the alleged wrongs and events herein occurred in the County of San Francisco. GENERAL FACTUAL ALLEGATIONS neighbor, Defendant Shaun Markham. Instead, Defendants instituted a frivolous UD action against Plaintiff based on noise. In April 2013, to manufacture evidence to be used against Mr. Garcia at the UD trial, Defendant Shaun Markham violated Plaintiff's privacy by filming into Mr. Garcia’s residence at night at times when Mr. Garcia was sexually intimate with a third party, in addition to recording audio. Defendant Shaun Markham admitted in his deposition that he did so at the direction and with the knowledge of the other Defendants, and that Defendant Shaun Markham had previously invaded the privacy of other tenants in the building in the same way, and under the same direction of the other Defendants, also for the purpose of manufacturing evidence to use against other tenants in the building in support of prospective eviction actions. Thus, Defendants had a policy of invading tenants’ privacy toward the goal of coercing rent-controlled tenants to abandon their tenancies in order to sell the subject premises with no rent-controlled apartment is obtain a higher selling price. operendi of violating tenants privacy rights to maximize both monthly rental rates; and upon selling the building, to maximize sale value (a building fee of rent controlled tenants sells at a Laos PLAINTIFF’S [PROPOSED] THIRD AMENDED COMPLAINTnD 18 19 20 significantly higher rate). Defendants policy and practice of recording and filming Defendant inside his residence at night without consent violate California's Invasion of Privacy Act, the California Constitution, and the San Francisco Administrative Code. 18. Further, Defendants’ refusal to address Plaintiff's noise complaints was part of Defendants’ overall plan to harass Plaintiff into abandoning his rent-controlled apartment. Plaintiff is also informed and believes that Defendants have refused to cash his rent checks toward this end. 19. When the videos showing Mr. Garcia in his apartment at night (sometimes while being intimate with third parties) were produced in discovery in the UD case, Mr. Garcia became extremely upset and suffered emotional distress. Defendants has greatly diminished their quiet enjoyment off their rent controlled apartments, and has made Plaintiff feel like a monitored person in his own home. FIRST CAUSE OF ACTION (Tenant Harassment Against All Defendants, Pursuant to the San Francisco Administrative Code § 37.10B) 20. Plaintiffs reallege and reincorporate by this reference the allegations in above paragraphs. 21. This cause of action does not arise from any negligent act by any Defendant. This cause of action action arises solely from the intentional acts as described herein that were carried out in bad faith for the specific purpose of injuring Plaintiff, harassing him into abandoning his rent-controlled apartment. 22. Defendants’ breach of its statutory duties and obligations to Plaintiffs described above was done intentionally and in bad faith and thereby violated San Francisco Administrative Code § 37.10B(a). 23. Defendants thereby harassment Plaintiffs, and intentionally and knowingly or with a reckless disregard of San Francisco Administrative Code § 37.10B. 24. As a direct and proximately result of this harassment, Plaintiffs were damaged in an amount to be proven at trial. 25. Plaintiffs bring this Cause of Action under San Francisco Administrative Code § 37.10B(c)(3), and seek treble damages, emotional distress damages, reasonable attorneys’ fees, and punitive damages against Defendants pursuant to San Francisco Administrative Code § 37.10B(c)(5). 26. Defendants, each of them, knew the extent and egregiousness of the conduct alleged in this Complaint, and knew that such conduct would likely cause physical, mental, and emotional distress to Plaintiffs, that the alleged conduct did, in fact, cause mental, and emotional distress to the Plaintiffs, yet without regard to the rights, health, and safety of Plaintiffs chose to engage in -4- PLAINTIFF’S [PROPOSED] THIRD AMENDED COMPLAINTnD 18 19 20 28. 29. 30. 31. 32. 33. 34. 35. the alleged conduct intentionally, with malice, and in bad faith. Defendants’ conduct was despicable, thus entitling Plaintiffs to an award of punitive damages. . The above-described conduct is part of Defendants’ intended business plan to violate Plaintiff's privacy rights in his own home, and in bad faith, to harass Plaintiff to the point where he would abandon his rent-controlled apartment. SECOND CAUSE OF ACTION (Common Law Inyasion of Privacy) Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full. Defendants, and each of them, by way of their aforesaid conduct, intruded upon the privacy of Plaintiff in a manner that was highly offensive to a reasonable person. As a result of Defendants’ conduct, and each of them, Plaintiff has suffered damages in an amount of no less than $25,000.00. Defendants’ conduct and each of them, was intentional, malicious, fraudulent and oppressive, and in conscious disregard of Plaintiff's rights. Plaintiff is accordingly entitled to recover punitive and/or exemplary damages from Defendants pursuant to the terms of California Civil Code Section 3294, in a sum sufficient to punish Defendants and deter such conduct in the future. THIRD CAUSE OF ACTION (Invasion of Privacy Under Civil Code § 1708.8(b)) Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full. Defendants, and each of them, by way of their aforesaid conduct, intruded upon the privacy of Plaintiff in a manner that was highly offensive to a reasonable person. Pursuant to California Civil Code § 1708.8(b): “A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity, through the use of any device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the device was used.” Pursuant to California Civil Code § 1708.8(d): “A person who commits any act described in subdivision (a), (b), or (c) is liable for up to three times the amount of any general and special damages that are proximately caused by the violation of this section. This person may also be liable for punitive damages, subject to proof according to Section 3294. If the plaintiff proves that| the invasion of privacy was committed for a commercial purpose, the defendant shall also be Lees PLAINTIFF’S [PROPOSED] THIRD AMENDED COMPLAINTnD 18 19 20 36. 38. 39. 40. Al. . Defendant Shawn Markham violated this law as the principle actor under subsection (b), and subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result of the violation of this section. A person who comes within the description of this subdivision is also subject to a civil fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000).” Plaintiff seeks these remedies. Pursuant to California Civil Code § 1708.8(e) “A person who directs, solicits, actually induces, or actually causes another person, regardless of whether there is an employer-employee relationship, to violate any provision of subdivision (a), (b), or (c) is liable for any general, special, and consequential damages resulting from each said violation. In addition, the person that directs, solicits, actually induces, or actually causes another person, regardless of whether there is an employer-employee relationship, to violate this section shall be liable for punitive damages to the extent that an employer would be subject to punitive damages pursuant to subdivision (b) of Section 3294. A person who comes within the description of this subdivision is also subject to a civil fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000).” Plaintiff seeks these remedies. Defendant Angelo Wilson and Defendant Carrie Wilson in her individual capacity or in her capacity as Trustee of The Wilson Family Trust are liable under subsection (e) because they approved, ratified, consented, induced, caused or directed Defendant Shaun Markham’s misconduct, who was their agent. Defendants, and each of them, by way of their aforesaid conduct, intruded upon the privacy of Plaintiff in a manner that was highly offensive to a reasonable person. Defendants’ conduct and each of them, was intentional, malicious, fraudulent and oppressive, and in conscious disregard of Plaintiff's rights. Plaintiff is accordingly entitled to recover punitive and/or exemplary damages from Defendants pursuant to the terms of California Civil Code Section 3294, in a sum sufficient to punish Defendants and deter such conduct in the future. FOURTH CAUSE OF ACTION (Invasion of Privacy Under Article 1, § 1 of the California Constitution) Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full. Defendants, and each of them, by way of their aforesaid conduct, intruded upon the privacy of Plaintiff in a manner that was highly offensive to a reasonable person. Plaintiff had a constitutionally protected interest in the privacy of his home without observation, intrusion, or interference by Defendants, and each of them. Log PLAINTIFF’S [PROPOSED] THIRD AMENDED COMPLAINTnD 18 19 20 42. 43. 44. 45. 46. 47. 48. As a result of Defendants’ conduct, and each of them, Plaintiff has suffered damages in an amount of no less than $25,000.00. Defendants’ conduct and each of them, was intentional, malicious, fraudulent and oppressive, and in conscious disregard of Plaintiff's rights. Plaintiff is accordingly entitled to recover punitive and/or exemplary damages from Defendants pursuant to the terms of California Civil Code Section 3294, in a sum sufficient to punish Defendants and deter such conduct in the future. FIFTH CAUSE OF ACTION (Breach of Contract) Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full. The parties had a valid Lease for the Plaintiffs tenancy at the Subject Premises. Defendants breached the Lease by failing to honor their obligation to address Plaintiff's noise complaint against Defendant Shaun Markham. Defendants breached the lease by failing to cash Plaintiff's rent checks. Defendants furthered breach the Lease's written and implied covenant of quiet enjoyment by failing to honor their obligation to address Plaintiff's noise complaint against Defendant Shaun Markham. As a result of Defendants' breach of the Lease, Plaintiff was damaged by the loss of value of his tenancy at the Subject Premises in an amount to be proven at trial. SIXTH CAUSE OF ACTION (To Enforce Debt Incurred Pursuant to Defendants’ Breach Against Defendant Carrie Wilson 49. 50. Sl. 52. 53. in her individual capacity or in her capacity as Trustee of The Wilson Family Trust) Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full. The parties had a valid Lease for the Plaintiff's tenancy at the Subject Premises, which contains a provision providing for an award of reasonable attorney’s fees and costs to the prevailing party to the UD action. Mr. Garcia prevailing and incurrent significant attorney’s fees and costs. In this cause of action, Plaintiff seeks to enforce the award of attorney’s fees and costs against the contracting party with whom Mr. Garcia entered the Lease in 2010 for possession of the Subject Premises: The Wilson Family Trust. SEVENTH CAUSE OF ACTION (Wrongful Eviction under the San Francisco Administrative Code) Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full. Defendants wrongfully endeavored to recover possession of the Subject Premises in violation of Sections 37.9 or, in the alternative, 37.10 of the San Francisco Administrative Code. -7- PLAINTIFF’S [PROPOSED] THIRD AMENDED COMPLAINTnD 18 19 20 54. Defendants, each of them, acted in knowing violation of, or in reckless disregard of Sections 37.9 or, in the alternative, 37.10A of the San Francisco Administrative Code. Plaintiff sustained emotions distress damages in addition to the above-described damages. Plaintiff seeks these trebled damages pursuant to San Francisco Administrative Code Section 37.9(f). Wherefore, Plaintiff requests judgment against Defendants as set forth: 1. For general and special damages in an amount according to proof under San Francisco Administrative Code § 37.10B(c)(5); 2. For punitive damages allowed by law and in an amount sufficient to punish and deter defendants from engaging in similar misconduct in the future and to punish them for their misconduct under San Francisco Administrative Code § 37.10B(c)(5) and California Civil Code § 3294; For damages under California Penal Code § 637.2, 674; For loss of use damages, where appropriate; Trebled damages under San Francisco Administrative Code Section 37.9(f); For interest at the legal rate, including prejudgment interest, For costs of suit incurred; eS ee ee For attorney’s fees allowed by law under; San Francisco Administrative Code §§ 37.9, 37.10B(c)(5); and under the leasehold agreement; 9. For all additional remedies under Cal.C.C.P. § 1029.8 against The Wilson Family Trust/Carrie Wilson and Angelo Wilson; 10. For such other and further relief as the Court deems just and equitable. DATED: January 12,2017 LAW OFFICES OF BENNY MARTIN BENJAMIN MARTIN Attorney for Plaintiff -8- PLAINTIFF’S [PROPOSED] THIRD AMENDED COMPLAINTEXHIBIT BnD 18 19 20 LAW OFFICES OF BENNY MARTIN Benjamin Martin (SBN 257452) 647 Santa Clara Ave Los Angeles, CA 90291 510-227-4406 knowyourrightsinsf@gmail.com Attorney for Plaintiff, Phillip Garcia SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION PHILLIP GARCIA, an individual, Case # CGC-14-538560 Plaintiff, [PROPOSED] AMENDMENT TO SECOND AMENDED COMPLAINT SUBSTITUTING TRUE NAMES OF DEFENDANTS FOR FICTITIOUS NAMES VS. 1-20, et. al. ) ) ) ) ) ) ) ANGELO WILSON, an individual, and DOES} ) ) Defendants. } ) On filing the complaint, and subsequent amended complaints, plaintiff was ignorant of the true names of certain defendants and designated such defendants in the complaint by fictitious names, DOE I through DOE 20. Plaintiff, having discovered the true names of said defendants to be hereby amends the Second Amended Complaint by inserting the true names in the place of the fictitious names wherever they appear in the complaint. DOE 1 is substituted for Carrie Wilson. DATED: January 10, 2017 LAW OFFICES OF BENNY MARTIN BENJAMIN MARTIN Attorney for Plaintiff eqs [PROPOSED] AMENDMENT TO SECOND AMENDED COMPLAINT SUBSTITUTING TRUE NAMES OF DEFENDANTS FOR FICTITIOUS NAMESEXHIBIT CLAW OFFICES OF BENNY MARTIN Benjamin Martin (SBN 257452) ELECTRONICALLY 195 41st Street FILED P.O. Box 11120 ‘Supertor Court of Caltfomia, Oakland, CA 94611 County of San Francisco knowyourrightsinsf@gmail.com 01/14/2016 Clerk of the Court BY-WILLIAM TRUPEK Attorney for Plaintiff, Phillip Garcia Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION PHILLIP GARCIA, an individual, Case # CGC-14-538560 PLAINTIFF’S SECOND AMENDED COMPLAINT vs. ) ) Plaintiff, 3 ) ) ) CARRIE WILSON, in her capacity as trustee of THE WILSON FAMILY TRUST, SHAUN ) jury TRIAL REQUESTED MARKHAN, an individual, ERIKA MARKHAM, an individual, and ANGELO WILSON, an individual, and DOES 1-20, Defendants. eee NOW HERE COMES PLAINTIFF, PHILLIP GARCIA (Plaintiff) WHO ALLEGES: INTRODUCTION 1. This action arises out of a landlord-tenant relationship between Plaintiff Phil Garcia, the tenant, and The Wilson Family Trust, the landlord. The subject premises located at 1665 Hayes Street, San Francisco, CA 94117 (“subject premises”). Nv Plaintiff sues Defendants for breaches of the written 2010 lease entered into between Mr. Garcia and The Wilson Family Trust (attached as Exhibit A) for refusing to address Mr, Garcia’s noise complaints; for invading Defendant’s privacy by filming Mr. Garcia inside his residence through an open window curtain at night, as well as recording audio of Plaintiff in his residence without his knowledge or consent; and to enforce the award of attorney’s fees and costs entered against Defendant Angelo Wilson in the matter of Wilson v. Garcia, CUD-13- 645240 against The Wilson Family Trust, which were incurred to defend against Defendants’ frivolous unlawful detainer. -.1- PLAINTIFF’S SECOND AMENDED COMPLAINTa On November 21, 2013, the Court entered judgment in favor of Mr. Garcia in the unlawful detainer matter. On February 14, 2014, Mr. Garcia was awarded $42,500 in attorney’s fees, pursuant to an attorney's fee provision in the 2008 lease entered into between Mr. Garcia and The Wilson Family Trust. Costs were also awarded to Mr. Garcia, so that the judgment was for a total of $49,710.95. The trial Court refused to include The Wilson Family Trust in the award because The Wilson Family Trust was not a named party and therefore the Court had no jurisdiction to do so, despite the fact that The Wilson Family Trust is the party to the 2010 providing for the award of attorney’s fees and costs to the prevailing party. Plaintiff emphasizes at the outset that this action is in not in retaliation for any Defendant’s exercise of a First Amendment Right such as the service of a notice to quit or a UD complaint—it is based in the obscene and offensive manner in which Defendants sought to fabricate evidence of| Plaintiff's “nuisance”: recording audio and video of Mr. Garcia in the privacy of his home, including instances of Mr. Garcia being sexually intimate with third parties. PARTIES Carrie Wilson is the trustee of The Wilson Family Trust, owner and landlord of the subject premises. She entered into the 2010 lease as trustee of The Wilson Family Trust, a California citizen (Exhibit B is a true and correct copy of My 1994 grant deed transferring title of the Subject Premises from Carrie Wilson as an individual to Carrie Wilson as Trustee of The Wilson Family Trust). Carrie Wilson, hired Erika Markham and Angelo Wilson to be the off-site managers of the subject premises. Angelo Wilson is a citizen of California. Erika Markham is recently a citizen of Georgia. Carrie Wilson, Erika Markham and Angelo Wilson thereafter hired Shaun Markham to be the on- site manager that was tasked with “keep tabs” on other tenants, and “keep an eye on tenants,” which included filming video inside Plaintiff's flat at night through open curtains and windows, and recording audio and video. Plaintiff has a judgment against Defendant Angelo Wilson in the amount of $49,710.95—and Plaintiff seeks to enforce this judgment against The Wilson Family Trust as owners and landlord. of the subject premises, and as the actual party with whom Mr. Garcia entered into the lease agreement. PLAINTIFF’S SECOND AMENDED COMPLAINT10. vv 13. 14. 17. . This Court has personal jurisdiction over all Defendants because each Defendant committed the . This Court has personal jurisdiction over Plaintiff because at all times mentioned herein each . Throughout 2012 and 2013, Defendant’s ignored Plaintiff's noise complaints against his upstairs . In April 2013, to manufacture evidence to be used against Mr. Garcia at the UD trial, Defendant Plaintiffs do not know the names and capacities of any unnamed defendants sued herein as DOES 1-20. Plaintiffs will amend this Complaint when the true names and capacities of Defendants have been ascertained. JURISDICTION AND VENUE wrongs set forth herein or is a resident of, and/or is domiciled in and/or does business in, the State of California. Plaintiff lived in the City and County of San Francisco. This court has subject-matter jurisdiction because the accident occurred in San Francisco, and because the amount-in-controversy exceeds $25,000. Venue is proper in the Superior of San Francisco because Defendants, or some of them, operate and/or own a business in the County and because all the alleged wrongs and events herein occurred in the County of San Francisco. GENERAL FACTUAL ALLEGATIONS neighbor, Defendant Shaun Markham. Instead, Defendants instituted a frivolous UD action against Plaintiff based on noise. Shaun Markham violated Plaintiff's privacy by filming into Mr. Garcia’s residence at night at times when Mr. Garcia was sexually intimate with a third party, in addition to recording audio. Defendant Shaun Markham admitted in his deposition that he did so at the direction and with the knowledge of the other Defendants, and that Defendant Shaun Markham had previously invaded the privacy of other tenants in the building in the same way, and under the same direction of the other Defendants, also for the purpose of manufacturing evidence to use against other tenants in the building in support of prospective eviction actions. Thus, Defendants had a policy of invading tenants’ privacy toward the goal of coercing rent-controlled tenants to abandon their tenancies in order to sell the subject premises with no rent-controlled apartment is obtain a higher selling price. Thus, the above-described filming of tenants in their residences is part of Defendants’ modus operendi of violating tenants privacy rights to maximize both monthly rental rates; and upon selling the building, to maximize sale value (a building fee of rent controlled tenants sells at a -3- PLAINTIFF’S SECOND AMENDED COMPLAINTsignificantly higher rate). Defendants' policy and practice of recording and filming Defendant inside his residence at night without consent violate California's Invasion of Privacy Act, the California Constitution, and the San Francisco Administrative Code. - Further, Defendants’ refusal to address Plaintiff's noise complaints was part of Defendants’ overall plan to harass Plaintiff into abandoning his rent-controlled apartment. Plaintiff is also informed and believes that Defendants have refused to cash his rent checks toward this end. . When the videos showing Mr. Garcia in his apartment at night (sometimes while being intimate with third parties) were produced in discovery in the UD case, Mr. Garcia became extremely upset and suffered emotional distress. Defendants has greatly diminished their quiet enjoyment of their rent controlled apartments, and has made Plaintiff feel like a monitored person in his own home. FIRST CAUSE OF ACTION (Tenant Harassment Against All Defendants, Pursuant to the San Francisco Administrative Code § 37.10B) 20. Plaintiffs reallege and reincorporate by this reference the allegations in above paragraphs. 21. This cause of action does not arise from any negligent act by any Defendant. This cause of action| action arises solely from the intentional acts as described herein that were carried out in bad faith for the specific purpose of injuring Plaintiff, harassing him into abandoning his rent-controlled apartment. . Defendants’ breach of its statutory duties and obligations to Plaintiffs described above was done intentionally and in bad faith and thereby violated San Francisco Administrative Code § 37.10B(a). . Defendants thereby harassment Plaintiffs, and intentionally and knowingly or with a reckless disregard of San Francisco Administrative Code § 37.10B. . As a direct and proximately result of this harassment, Plaintiffs were damaged in an amount to be proven at trial. . Plaintiffs bring this Cause of Action under San Francisco Administrative Code § 37.10B(c)(3), and seek treble damages, emotional distress damages, reasonable attorneys’ fees, and punitive damages against Defendants pursuant to San Francisco Administrative Code § 37.10B(c)(5). . Defendants, each of them, knew the extent and egregiousness of the conduct alleged in this Complaint, and knew that such conduct would likely cause physical, mental, and emotional distress to Plaintiffs, that the alleged conduct did, in fact, cause mental, and emotional distress to the Plaintiffs, yet without regard to the rights, health, and safety of Plaintiffs chose to engage in -4- PLAINTIFF’S SECOND AMENDED COMPLAINTthe alleged conduct intentionally, with malice, and in bad faith. Defendants’ conduct was despicable, thus entitling Plaintiffs to an award of punitive damages. 27. The above-described conduct is part of Defendants’ intended business plan to violate Plaintiff's 28 30. 31. privacy rights in his own home, and in bad faith, to harass Plaintiff to the point where he would abandon his rent-controlled apartment. SECOND CAUSE OF ACTION (Common Law Invasion of Privacy) . Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full. 29. Defendants, and each of them, by way of their aforesaid conduct, intruded upon the privacy of Plaintiff in a manner that was highly offensive to a reasonable person. As a result of Defendants’ conduct, and cach of them, Plaintiff has suffered damages in an amount of no less than $25,000.00. Defendants’ conduct and each of them, was intentional, malicious, fraudulent and oppressive, and| in conscious disregard of Plaintiff's rights. Plaintiff is accordingly entitled to recover punitive and/or exemplary damages from Defendants pursuant to the terms of California Civil Code Section 3294, in a sum sufficient to punish Defendants and deter such conduct in the future. THIRD CAUSE OF ACTION (Invasion of Privacy Under Civil Code § 1708.8(b)) . Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full. . Defendants, and each of them, by way of their aforesaid conduct, intruded upon the privacy of Plaintiff in a manner that was highly offensive to a reasonable person. . Pursuant to California Civil Code § 1708.8(b): “A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity, through the use of any device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the device was used.” . Pursuant to California Civil Code § 1708.8(d): “A person who commits any act described in subdivision (a), (b), or (c) is liable for up to three times the amount of any general and special damages that are proximately caused by the violation of this section. This person may also be liable for punitive damages, subject to proof according to Section 3294. If the plaintiff proves that the invasion of privacy was committed for a commercial purpose, the defendant shall also be -5- PLAINTIFF’S SECOND AMENDED COMPLAINT36. de 39. 40. 4 subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result of the violation of this section. A person who comes within the description of this subdivision is also subject to a civil fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000).” Plaintiff seeks these remedies. Pursuant to California Civil Code § 1708.8(e) “A person who directs, solicits, actually induces, or] actually causes another person, regardless of whether there is an employer-employee relationship, to violate any provision of subdivision (a), (b), or (c) is liable for any general, special, and consequential damages resulting from each said violation. In addition, the person that directs, solicits, actually induces, or actually causes another person, regardless of whether there is an employer-employee relationship, to violate this section shall be liable for punitive damages to the extent that an employer would be subject to punitive damages pursuant to subdivision (b) of Section 3294. A person who comes within the description of this subdivision is also subject to a civil fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000).” Plaintiff seeks these remedies. Defendant Shawn Markham violated this law as the principle actor under subsection (b), and Defendant Angelo Wilson and Erika Markham and The Wilson Family Trust are liable under subsection (e) because they approved, ratified, consented, induced, caused or directed Defendant Shaun Markham’s misconduct, who was their agent. . Defendants, and each of them, by way of their aforesaid conduct, intruded upon the privacy of Plaintiff in a manner that was highly offensive to a reasonable person. Defendants’ conduct and each of them, was intentional, malicious, fraudulent and oppressive, and in conscious disregard of| Plaintiff's rights. Plaintiff is accordingly entitled to recover punitive and/or exemplary damages from Defendants pursuant to the terms of California Civil Code Section 3294, in a sum sufficient to punish Defendants and deter such conduct in the future. FOURTH CAUSE OF ACTION (Invasion of Privacy Under Article 1, § 1 of the California Constitution) Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full. Defendants, and each of them, by way of their aforesaid conduct, intruded upon the privacy of Plaintiff in a manner that was highly offensive to a reasonable person. . Plaintiff had a constitutionally protected interest in the privacy of his home without observation, intrusion, or interference by Defendants, and each of them. -6- PLAINTIFF’S SECOND AMENDED COMPLAINT42. As a result of Defendants’ conduct, and each of them, Plaintiff has suffered damages in an amount of no less than $25,000.00. 43. Defendants’ conduct and each of them, was intentional, malicious, fraudulent and oppressive, and) in conscious disregard of Plaintiff's rights. Plaintiff is accordingly entitled to recover punitive and/or exemplary damages from Defendants pursuant to the terms of California Civil Code Section 3294, in a sum sufficient to punish Defendants and deter such conduct in the future. FIFTH CAUSE OF ACTION (Breach of Contract) 44, Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full. 45. The parties had a valid Lease for the Plaintiff's tenancy at the Subject Premises. 46. Defendants breached the Lease by failing to honor their obligation to address Plaintiff's noise complaint against Defendant Shaun Markham. Defendants breached the lease by failing to cash Plaintiff's rent checks. 47. Defendants furthered breach the Lease's written and implied covenant of quiet enjoyment by failing to honor their obligation to address Plaintiff's noise complaint against Defendant Shaun Markham, 48. As a result of Defendants’ breach of the Lease, Plaintiff was damaged by the loss of value of his tenancy at the Subject Premises in an amount to be proven at trial. SIXTH CAUSE OF ACTION (To Enforce Debt Incurred Pursuant to Defendants’ Breach Against Defendant The Wilson Family Trust) 49. Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full. 50. The parties had a valid Lease for the Plaintiff's tenancy at the Subject Premises, which contains a provision providing for an award of reasonable attorney’s fees and costs to the prevailing party to the UD action. Mr. Garcia prevailing and incurrent significant attorney’s fees and costs. 51. In this cause of action, Plaintiff seeks to enforce the award of attorney’s fees and costs against the contracting party with whom Mr. Garcia entered the Lease in 2010 for possession of the Subject Premises: The Wilson Family Trust. SEVENTH CAUSE OF ACTION (Wrongful Eviction under the San Francisco Administrative Code) 52. Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full. 53. Defendants wrongfully endeavored to recover possession of the Subject Premises in violation of Sections 37.9 or, in the alternative, 37.10 of the San Francisco Administrative Code. PLAINTIFF’S SECOND AMENDED COMPLAINT54. Defendants, each of them, acted in knowing violation of, or in reckless disregard of Sections 37.9 or, in the alternative, 37.10A of the San Francisco Administrative Code. Plaintiff sustained emotions distress damages in addition to the above-described damages. Plaintiff seeks these trebled damages pursuant to San Francisco Administrative Code Section 37.9(f). Wherefore, Plaintiff requests judgment against Defendants as set forth: enn wf Ww For general and special damages in an amount according to proof under San Francisco Administrative Code § 37.10B(c)(5); For punitive damages allowed by law and in an amount sufficient to punish and deter defendants from engaging in similar misconduct in the future and to punish them for their misconduct under San Francisco Administrative Code § 37.10B(c)(5) and California Civil Code § 3294; For damages under California Penal Code § 637.2, 674; For loss of use damages, where appropriate; Trebled damages under San Francisco Administrative Code Section 37.9(f); For interest at the legal rate, including prejudgment interest, For costs of suit incurred; For attomey’s fees allowed by law under; San Francisco Administrative Code §§ 37.9, 37.10B(c)(S); and under the leasehold agreement; For all additional remedies under Cal.C.C.P. § 1029.8 against The Wilson Family Trust and Angelo Wilson; 10. For such other and further relief as the Court deems just and equitable. DATED: January 13, 2016 LAW OFFICES OF BENNY MARTIN BENJAMIN MARTIN Attorney for Plaintiff -~B- PLAINTIFF’S SECOND AMENDED COMPLAINTEXHIBITA‘THiS FORM FOR USE INCALIFORNIA ONLY RESIDENTIAL LEASE-RENTAL AGREEMENT AND DEPOSIT RECEIPT Real Et Fore AGENCY RELATIONSHIP CONFIRMATION. The following agency relationship is hereby confirmed for this transaction and supersedes any prior agency election (If no agency relationship insert “NONE"): LISTING AGENT: is the agent of (check one): (Print Firm Name) the Owner exclusively; or [_]both the Tenant and the Owner. LEASING AGENT: Davis Realty Company Inc. (if not the same as the Listing Agent) is the agent of (check one): (Print Firm Name) 7 [the Tenant exclusively; or [_]the Owner exclusively; or (J both the Tenant and the Owner. Note: This confirmation DOES NOT take the place of the AGENCY DISCLOSURE form (such as P.P. Form 110.42 CAL) required by Jaw if the term exceeds one year. RECEIVED FROM Phillip Garcia __ hereinafter referred to as Tenant, the sum of $__ 4,200.00 ( Four thousand two hundred--—— dollars), evidenced by cashier's check or cash , a8 a deposit. Upon acceptance of this Agreement, the Owner of the premises, will apply the deposit as follows: TOTAL RECEIVED BALANCE DUE PRIOR TO OCCUPANCY Rent for the period from 8-1-10 to__ 8-31-10 $. 2.100.00 $. $. 2,100.00 Security deposit (not applicable toward last month's rent)... $____2,100.00 $. 5 2,100.00 Other. N/A 8. $. $. TOTAL... eee latte $__4,200.00 $. $ 4,200.00 In the event this Agreement is not accepted by the Owner, within 3 days, the total deposit received will be refunded. Tenant offers to rent from the Owner the premises situated in the City of San Francisco 7 County of ____San Francisco __, State of California, commonly known as 1655 Hayes Street, San Francisco, California 94117. three bedroom flat with stove tric cai raperies upon the following terms and conditions: 1. TERM. The term will commence on August 1, 2010. and continue (check one of the two following alternatives): (CULEASE until for a total rent of §. dollars). EXIRENTAL on a month-to-month basis, until either party terminates this Agreement by giving the other party written notice as required by law, 2. RENT. Rent will be $___2,100,00_._, permonth, payable in advance by personal check, cashier's check, cash ormoney order, on “the __1st___ day of each calendar month to Owner or his or her authorized agent, by mail or personal delivery to the following address: Frankie or Carrie Wilson, 1673 Hayes Street, San Franc lifornia 94117 lo Wilson 261 or at such other place as may be designated by Owner in writing from time to time. Payment by personal delivery may be made (check one): (_} Monday through Friday, 9:00 a.m. to 5:00 p.m., or[_Jat the following times: . Inthe event rent is not received by Owner in full within _5 _ days after due date, Tenant agrees that it would be impracticable or extremely difficult to fix the actual damages to Owner caused by that failure, and Tenant agrees to pay a late charge of $__105.00__ Tenant further agrees to pay $ 25.00 for each dishonored bank check, All late fees and returned check fees will be considered additional rent. The late charge period is nota grace period, and Owner is entitled to make written demand for any rent if not paid when due and to collect interest thereon, Any unpaid balance including late charges, will bear interest at 10% per annum, or the maximum rate allowed by law, whichever is less. 3. MULTIPLE OCCUPANCY, It is expressly understood that this Agreement is between the Owner and each signatory jointly and severally Each signatory will be responsible for timely payment of rent and performance of all other provisions of this Agreement. 4, UTILITIES. Tenant will be responsible for the payment of all utilities and services, except: waterandgarbhage which will be paid by Owner. 5. USE. The premises will be used exclusively as a residence for no more than 4 persons. Guests staying more than a total of 419 days in a calendar year without written consent of Owner will constitute a violation of this Agreement. Tenant shall park operable automobiles in assigned spaces only. Trailers, boats, campers, and inoperable vehicles are not allowed without the written consent of Owner. Tenant may not repair motor vehicles on the leased premises. 6. ANIMALS. No animals will be brought on the premises withoitt the prior consent of the Owner; except No pets. 7, RULES AND REGULATIONS. In the event that the premises is a portion of a building containing more than one unit, or is located in a common interest development, Tenant agrees to abide by all applicable rules, whether adopted before or after the date of this Agreement, including rules with respect to noise, odors, disposal of refuse, animals, parking, and use of common areas. Tenant will Tenant Lee IL IL IL } has read this page. CAUTION: The copyright laws of the United States forbid the unauthorized reproduction of this form by any means including ‘scanning or computerized formats. Page 1 of 4 FORM 105.1 CAL (6-200) COPYRIGHT BY PROFESSIONAL PUBLISHING, NOVATO, CA PROFESSIONAL Form generated by: TrueForms™ www.TrueForms.com 800-499-9612 q PUBLISHING Wilson 016Property Address 1665 Hayes Street San Francisco, California 94117 Pay any penaities , including attorney fees, imposed by homeowners’ association for violations by tenant or tenant's guests. 8. ORDINANCES AND STATUTES. Tenant will comply with all statutes, ordinances, and requirements of all municipal, state and federal authorities now in force, or which may iaier be in force, regar ses f ing ihe use of ihe premises. Tenant will nol use the premises for any unlawful purpose including, but not limited to, using, storing or selling prohibited drugs. If the premises are located in a rent contro! area, the Tenant should contact the Rent and Arbitration Board for his or her legal rights. 9. ASSIGNMENT AND SUBLETTING. Tenant will not assign this Agreement or sublet any portion of the premises without pri