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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Aug-01-2013 01:22 pm
Case Number: CUD-11-639244
Filing Date: Aug-01-2013 01:18 pm
Filed by: ROSSALY DELAVEGA
Juke Box: 001 Image: 04149372
MOTION FOR SUMMARY JUDGMENT, UNLAWFUL DETAINER
TRAVIS CAMPBELL VS. KIMBERLY HATHAWAY et al
001004149372
Instructions:
Please place this sheet on top of the document to be scanned.=)
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Orestes A. Cross, State Bar No. 250471
Thomas J. O’Brien, State Bar No. 274969
WALSTON CROSS, Attorneys
735 Montgomery Street, Suite 250
San Francisco, California 94111
Telephone: (415) 956-9200
Facsimile: (415) 956-9205
Attorneys for Plaintiff TRAVIS CAMPBELL
SUPERIOR COURT OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
TRAVIS CAMPBELL, Case No. CUD-11-639244
a PLAINTIFF’S NOTICE OF
Plaintiff, MOTION AND MOTION FOR
SUMMARY JUDGMENT
Vv.
Date: August 6, 2013
KIMBERLY HATHAWAY, JOHN HOFFMAN, Time: 9:30 A.M.
DOES 1 through 20, inclusive, Dept: 501
Defendants.
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
NOTICE IS HEREBY GIVEN THAT ON August 6, 2013 at 9:30 A.M., or as soon thereafter as
the matter can be heard, in Department 501 of the above-entitled Court, Plaintiff Travis Campbell will ask
this Court for a motion for summary judgment. This motion will be based on this notice, the supporting
Memorandum of Points and Authorities, the complete records and files in this action, declarations, all
other matters the Court may properly consider, and on such other evidence that may be presented at the
time of the hearing of this motion.
Dated: August 1, 2013 Respectfully Submitted,
WALSTON CROSS, Attorneys
By: Thomas J. O’Brien
Attorneys for Plaintiff T:PROOF OF SERVICE
I, the undersigned, under the penalty of perjury, declare and say:
That I am a citizen of the United States, over the age of 18 years and not a party to, or
interested in, the within action. I am employed in the County of San Francisco, State of California.
My business address is 735 Montgomery St., Ste. 250. San Francisco, CA 94109.
On August 1, 2013, I served PLAINTIFF’S NOTICE OF MOTION AND
MOTION FOR SUMMARY JUDGMENT together with this proof of service, on the parties in
this action:
Catherine Danielson, Esq.
Homeless Advocacy Project
1360 Mission St., Ste. 201
San Francisco, CA 94103
Facsimile: (415) 575-3132
/___/ BY MAIL I placed each such sealed envelope, with postage thereon fully prepaid for first-
class mail, for collection and mailing at San Francisco, California, following ordinary business
practice. I am readily familiar with the practice for collection and processing of correspondence
with the United States Postal Service. Mail is deposited with the United States Postal Service daily
in the ordinary course of business.
/ / BY OVERNIGHT SERVICE I placed, in an envelope designated by the overnight
service carrier, with delivery fees paid or provided for, each such sealed envelope in a box or other|
facility regularly maintained by the overnight service.
/ xxx / BY PERSONAL SERVICE | caused each such envelope to be delivered by hand to the
address(es) noted above and left with a receptionist or other person in charge of the office at the
above address(es).
/ xxx/ BY FACSIMILE By use of facsimile machine, I caused said document(s) to be
transmitted by facsirnile machine to the number(s) indicated after the address(es) noted above. The}
transmission of the within document(s) was reported as complete and without error by the
facsimile machine. Pursuant to California Rules of Court, Rule 2009(i), I caused the facsimile
machine to print a record of the transmission, a copy of which is attached to this declaration.
Executed on August 1, 2013 at San Francisco, California.
Jason BryanOrestes A. Cross, State Bar No. 250471
Thomas J. O’Brien, State Bar No. 274969 SS ¢
WALSTON CROSS, Attorneys Cong
735 Montgomery Street, Suite 250 80 AN
San Francisco, California 94111 GC Mp My,
Telephone: (415) 956-9200 Gig 97 a, 6s
Facsimile: (415) 956-9205 hy O17
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Attorneys for Plaintiff TRAVIS CAMPBELL Up»
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SUPERIOR COURT OF CALIFORNIA /
CITY AND COUNTY OF SAN FRANCISCO
TRAVIS CAMPBELL, Case No. CUD-11-639244
Plaintiff MEMORANDUM OF POINTS
° AND AUTHORITES IN SUPPORT
OF PLAINTIFF’S MOTION FOR
ve SUMMARY JUDGMENT
KIMBERLY HATHAWAY, JOHN HOFFMAN, Date: August 6, 2013
DOES 1 through 20, inclusive, Time: 9:30 A.M.
Dept: 501
Defendants.
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INTRODUCTION
This case is an unlawful detainer action based on a 30-day Notice to Quit, which was
served on September 29, 2011, at Defendants’ residence, located 339 Lyon St., No. 2, San
Francisco, CA 94117. Defendants rent this unit from Plaintiff, the owner of the building. The
Notice to Quit was served due to Defendants’ numerous and repeated violations of the San
Francisco Rent Stabilization and Arbitration Ordinance (hereinafter “Rent Ordinance”).
The 30-Day Notice to Quit (O’Brien Decl. Ex. A) was served due to Defendants John
Hoffman's and Kimberly Hathaway’s (1) habitually late payment of rent, in violation of Rent
Ordinance Section 37.9(a)(1)(B); and (2) repeated and continuous interference with the comfort,
safety and enjoyment of fellow tenants at said property, in violation of Rent Ordinance Section
37.9(a)(3).
Specifically, in the four years leading up to the service of the 30-day notice to quit,
Defendants were late with rent payments an astounding 37 times in 48 months, or 77% of the time,
Even since the 30-day notice to quit was served in September 2011, Defendants have been late
with payment of rent an additional 8 times in 23 months (35% of the time).
Additionally, Defendants interfered with the comfort, safety and enjoyment of their fellow
tenants by repeatedly making terrorist death threats toward tenants, including young children. Mr.
Hoffman’s actions led to a two-year Restraining Order against him being granted by the San
Francisco Superior Court (Case No. CCH-10-571679) on April 13, 2011, for what the Court
termed a “CREDIBLE THREAT OF VIOLENCE?” against his fellow tenants, including young
children.
Moreover, Mr. Hoffman has filed with the Court medical documents, which evidence his
mental instability, and speak specifically to the fact that Mr. Hoffman poses a real danger to
himself and others. This fact, in conjunction with the finding by this Court on April 13, 2011, that
Mr. Hoffman poses a “CREDIBLE THREAT OF VIOLENCE”, demonstrates objectively that
Defendants are a danger to those around them, and have violated San Francisco Rent Stabilization
and Arbitration Ordinance (hereinafter “Rent Ordinance”), Section 37.9(a)(3).wn
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The unlawful detainer action is also based on Defendants Hathaway and Hoffman
repeatedly interfering with the comfort, safety and enjoyment of their fellow tenants by repeatedly
making false and slanderous statements to third parties, and for repeated attempts to harass tenants
by making unfounded and unwarranted emergency calls to the San Francisco Police Department.
These false reports made by Hoffman and Hathaway against their fellow tenants, interfered with
the comfort, safety and enjoyment of Plaintiff by harassing fellow tenants to the point that they
terminated their lease with Plaintiff and sought housing elsewhere, thus costing Plaintiff money in
rent and time to seek new tenants, also in violation of Rent Ordinance Section 37.9(a)(3).
Moreover, it should be noted that this case has been delayed repeatedly by Defendants”
continual and repeated failures and refusals to produce Mr. Hoffman for his deposition and for
past failures to respond to written discovery requests, which led to this Court awarding sanctions
and ordering written discovery responses to be provided. Defendant Hoffman has failed to appear
for four noticed deposition dates, including one set for August 1, 2013, the date this motion was
filed.
These delays and frustrations of justice, including delays on written discovery and
depositions, which have already resulted in discovery sanctions against Defendants, should not be
rewarded by allowing Defendants to remain residing at in the residence any longer.
L STATEMENT OF FACTS
Plaintiff Travis Campbell is the owner of a residential apartment building located at 339
Lyon St., San Francisco, CA. Campbell Declaration in Support of Plaintiff's Opposition to
Defendants’ Motion for Summary Judgment (hereinafter “Campbell Decl.” and attached hereto as
Exhibit K to O’Brien Decl.) § 1. Defendants Hoffman and Hathaway have been tenants at 339
Lyon St., Apt. 2, San Francisco, CA, for well over ten years. Campbell Decl. ] 2. Since 2007,
Defendants have been a nuisance and a danger to fellow tenants, and continue to be so. Many
tenants have complained repeatedly about Defendants, some even taking legal action or deciding
to move out, due to harassment, slander, threats of violence, and terrorist death threats, by
Defendants. Campbell Decl. § 3. This has cost Plaintiff a great deal of money in lost rent due tounits being vacated because of Defendants, and the time and money Plaintiff must expend to
secure new tenants. Campbell Decl. 3.
In April 2011, this Court found that Mr. Hoffman was a “CREDIBLE THREAT OF
VIOLENCE”, and issued a restraining order for the protection of various tenants, including a
minor. Campbell Decl. §] 4, O’Brien Declaration in Support of Plaintiff's Motion for Summary
Judgment (hereinafter “O’Brien Decl.”) § 8. This restraining order was granted after this Court
found that Mr. Hoffman had repeatedly menaced the tenants, and their minor child, for no reason
whatsoever. The tenants testified that Mr. Hoffman had repeatedly made terrorist death threats,
and physically charged at their son, menacingly, terrifying the boy. Mr. Hoffman had also
repeatedly screamed tetrorist death threats at the tenants, and their minor son, from close
proximity, threatening violence against the child, with spittle flying from his mouth onto the
terrified boy and his parents. Campbell Decl. § 4, O’Brien Decl. § 9. Other witnesses at that
hearing testified that they had seen Mr. Hoffman terrorizing the tenants, and their minor son.
Witnesses also testified that Ms. Hathaway had repeatedly slandered the tenants. O’Brien Decl. 4
9. The Court saw fit to declare Mr. Hoffman poses a “CREDIBLE THREAT OF VIOLENCE” to
fellow tenants, and to grant a two-year restraining order. O’Brien Decl. Ex. H.
Additionally, several tenants have come to Plaintiff of late and informed him that they are
in great fear for their safety from Mr. Hoffman and Ms. Hathaway. Tenants have informed
Plaintiff that Mr. Hoffman and Mrs. Hathaway openly use recreational drugs heavily, and act
aggressively and drug-induced in the halls of the building. Plaintiff has also received complaints
that Defendants scream at other tenants, each other, and at no one in particular, causing great fear
in other tenants. Tenants have informed Plaintiff that they are afraid for their safety due to fears
that Defendants may commit acts of violence against them. Campbell Decl. { 8.
Shortly after the restraining order against Mr. Hoffman was granted, Mr. Hoffman and Ms.
Hathaway again became delinquent in their rental payments to Plaintiff. Campbell Decl. § 5. At
one point, Defendants were approximately five months behind on their rent, from April 2011 until
August 2011. Campbell Decl. Jf 5, 7, Ex. A.Plaintiff allows tenants a generous grace period within which to pay rent without being
considered late. Thus, Defendants’ rent is due no later than the 5" of each month. Any payment
received after the 5" of each month is considered late. Despite that generosity, dating back to
September 2007, Deferdants have paid rent late a total of 45 times in a period of 71 months, or
62% of the time. From September 2007 to September 2011, Defendants paid rent late 37 times in
48 months (77% of the time). Additionally, Defendants have paid rent late 8 times in 23 months
(35% of the time) since the notice to quit was served in September 2011. Campbell Decl. 7, Ex.
A.
Finally, as a result of multiple complaints from tenants regarding Defendants’ behavior and
Defendants being a nuisance and a danger to fellow tenants, the costs associated with filling units
that were vacated because of that behavior, and the Defendants’ habitual failure to pay rent on
time, Plaintiff served on Defendants a 30-day notice to quit, on September 29, 2011. Campbell
Decl. {| 8-13. O’Brien Decl. 2. On November 1, 2011, after Defendants failed to vacate the unit
by October 29, 2011, per the notice to quit, this unlawful detainer action was filed and served
upon Defendants. O’Brien Decl. § 2.
II. PROCEDURAL HISTORY
This casé was filed on November 1, 2011, following Defendants’ refusal to move-out pursuant
to Plaintiff's 30-day Notice to Quit, served on September 29, 2011. Plaintiff anticipates that
Defendants will raise an estoppel defense. This claim is without merit. In their answer, Defendants
did not claim the defense of estoppel. O’Brien Decl. Ex. I. Indeed, in denying Defendants’ motion
for summary judgment on July 12, 2013, this Court ruled that Defendants could not claim estoppel
because they had not done so in their answer. When Defendants asked this Court for nunc pro tunc|
leave to amend their answer, this Court denied that request as untimely. O’Brien Decl. Ex. J.
Over the ensuring two years, Defendants have repeatedly delayed and obstructed Plaintiff’ g
discovery attempts in an attempt to drag out this litigation and remain in the apartment for as long
as possible. O’Brien Decl. { § 3-7. Those delays resulted in sanctions being awarded against
Defendants for failure to respond to written discovery requests. O’Brien Decl. 7, Ex. G.Defendant Hoffman has yet to appear for his deposition, despite repeated attempts by Plaintiff to
get him to do so. O’Brien Decl. § { 3-7.
Beginning in March of this year, Plaintiff again attempted to schedule Defendant
Hoffman’s deposition. Defendants repeatedly failed to respond to those attempts. O’Brien Decl. 4
4-5. Accordingly, Plaintiff served a notice of deposition for Defendant Hoffman on June 24, 2013,
with that deposition to occur on July 12, 2013. Defendant again failed to appear. Finally,
Defendant failed to appear for another properly noticed deposition on August 1, 2013, the day this
motion was filed. Plaintiff intends to file a motion to compel Defendant Hoffman’s deposition and
request for sanctions. O’Brien Decl. { 6.
Il. LEGAL ARGUMENT
A. Standard of Review
California Code of Civil Procedure 1170.7 provides that, “[a] motion for summary
judgment in an unlawful detainer case may be made at any time after the answer is filed upon
giving five days notice. Summary judgment shall be granted or denied on the same basis as a
motion under [Code of Civil Procedure] Section 437c.”
Under summary judgment law, any party to an action, whether plaintiff or defendant, may
move the court for summary judgment in his favor on a cause of action (i.e., claim) or defense.
The court must grant the motion “if all the papers submitted show” that “there is no triable issue as|
to any material fact” (Code Civ. Proc., § 437c, subd. (c))—that is, there is no issue requiring a trial]
as to any fact that is necessary under the pleadings and, ultimately, the law (Riverside County
Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653, 92 Cal. Rptr.2d 29;
Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 470, 84 Cal. Rptr.2d 810)—and that the
“moving party is entitled to a judgment as a matter of law” (Code Civ. Proc., § 437c, subd. (c)).
The moving party must support the motion with evidence including “affidavits,
declarations, admissions, answers to interrogatories, depositions, and matters of which judicial
notice” must or may be taken. (id., § 437c, subd. (b).) Likewise, any adverse party may oppose
the motion, and, “where appropriate,” must present evidence including “affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of which judicial notice” must orBw N =
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may be taken. (Ibid.) An adverse party who chooses to oppose the motion must be allowed a
reasonable opportunity to do so. (id., § 437c, subd. (h).)
In ruling on the motion, the court must consider all of the evidence and all of the inference:
reasonably drawn therefrom (id., § 437c, subd. (c)), and must view such evidence [e.g., Molko v.
Holy Spirit Assn. (1988), 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46; Stationers Corp.
v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785) and such
inferences (see, e.g., Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1520,
80 Cal.Rptr.2d 94; Ales-Peratis Foods Internal, Inc. v. American Can Co. (1985) 164 Cal.App.3d
277, 280, 209 Cal.Rptr. 917], in the light most favorable to the opposing party.
A plaintiff or cross-complainant has met his or her burden of showing that there is no
defense to a cause of action if that party has proved each element of the cause of action entitling
the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that
burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or
more material facts exists as to that cause of action or a defense thereto. The defendant or cross-
defendant may not rely-upon the mere allegations or denials of its pleadings to show that a triable
issue of material fact exists but, instead, shall set forth the specific facts showing that a triable
issue of material fact exists as to that cause of action or a defense thereto. (Code Civ. Proc., §
437c, subd. (p)(1).
B. There Are No Triable Issues of Material Fact Regarding Plaintiff’s Claims of
Defendants’ Violation of Rent Ordinance Sections 37.9(a)(3) and 37.9(a)(1)(B)
Defendants can present no triable issues of material fact to rebut the fact that (1) Plaintiff's
claim that Defendants were habitually late with payment of rent between September 2007 and
September 2011, in violation of Rent Ordinance Section 37.9(a)(1)(B); and (2) have made terrorist
death threats and pose a credible threat of violence against fellow tenants, in violation of Rent
Ordinance 37.9(a)(3). As such, the motion should be dismissed.
1. There Are No Triable Issues of Material Fact Regarding Plaintiff’s Claims|
of Defendant’ Violation of Rent Ordinance 37.9(a)(1)(B)
There exists no.triable issue of material facts as to whether Defendants violated Rent
Ordinance Section 37.9(a)(1)(B), for habitually paying rent late, and thus Plaintiffs motion for
summary judgment should be granted.Although California Courts have not defined what constitutes habitual late payment of
rent, by any reasonable standard Defendants have been habitually late in their payment of rent, to
an egregious degree.
Defendants have a long history of late payment of rent. From April 2011 through August
2011, Defendants did not pay any rent. Campbell Decl. {4 5, 7, Ex. A. After eventually catching
up in their rent payments, Defendants’ rent check was returned for insufficient funds in September
2011. Campbell Decl. § 6.
Plaintiff maintains a very reasonable grace period in his lease with Defendants, allowing a
5-day grace period for payment of rent. This means that Defendants’ rent is due no later than the
5" of each month. However, as of July 2013 and dating back to September 2007, Defendants have
paid rent late a total of 45 times in a period of 71 months, or 62% of the time. More egregiously,
in the 4 years leading up to the service of the Notice to Quit in September 2011, Defendants paid
rent late 37 times in 48 months (77% of the time). Amazingly, the 30-day Notice to Quit, and this
pending litigation, did not change Defendants’ behavior. Since the service of the 30-day Notice to
Quit, Defendants have paid rent late 8 times in 23 months (35% of the time). Campbell Decl. 4 7,
Ex. A.
On July 12, 2013, this Court denied Defendants’ motion for summary judgment. In that
motion, Defendants argued that summary judgment should be granted based on a false claim that
they had been making rental payments on time since the 30-day notice to quit was served on
September 29, 2011. As noted above, this claim is false, as Defendants were late with their rent
payment in October 2011, November 2011, December 2011, January 2012, February 2012,
February 2013, and March 2013. See Campbell Decl. § 7, Ex. A.
Defendants can present no evidence to rebut the position that they have been habitually late
with payment of rent over the last four years. As noted above, from September 2007 to September
2011, Defendants were late on their rent payments 37 out of 48 months, or 77% of the time.
Campbell Decl. 7, Ex. A. No reasonable jury could find that such a history of late payment of
rent was not habitual.N
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Defendants cannot escape the facts. They are habitually late with their rent payments.
There is simply no triable issue of material fact regarding Defendants’ habitually late payment of
rent. This Court should grant Plaintiff's motion for summary judgment and force Defendants to
vacate Plaintiff's property.
2. There Are No Triable Issues of Material Fact Regarding Plaintiff's
37.9(a)(3) Claims
Plaintiff also asserts his unlawful detainer action on the grounds that he has a duty to
protect tenants from acts of violence by third party tenants, if the landlord is on notice that the
third party tenant has a propensity for violence.
California Courts have held that landlords have a duty to protect tenants from acts of
violence by third party tenants, if the landlord is on notice that the third party tenant has a
propensity for violence. Barber v. Chang (2007) 151 Cal-App.4th 1456, 1464 [60 Cal.Rptr.3d 760,
767].
As noted at the outset, the unlawful detainer action was also based on Defendants
Hathaway’s and Hoffman’s violations of Rent Ordinance 37.9(a)(3) for (1) posing what this Court
deemed a “CREDIBLE THREAT OF VIOLENCE” against fellow tenants; (2) repeatedly
interfering with the comfort, safety and enjoyment of their fellow tenants by repeatedly making
false and slanderous statements to third parties; (3) repeated attempts to harass tenants by making
bogus and unwarranted calls to the San Francisco Police Department to make false reports against
those fellow tenants; and (4) interfering with the comfort, safety and enjoyment of Plaintiff by
harassing fellow tenants to the point that they terminated their lease with Plaintiff and sought
housing elsewhere, thus costing Plaintiff money in rent and time to seek new tenants.
Plaintiff asserts his unlawful detainer action on the grounds that he has a duty to protect
tenants from acts of violence by third party tenants, if the landlord is on notice that the third party
tenant has a propensity for violence.
As demonstrated in the statement of facts, Plaintiff Travis Campbell has been put on notice’
of Defendants’ propensity for violence. Campbell Decl. { { 3, 4, 8, 9, 10. This Court determined
that Defendant Hoffman poses a “CREDIBLE THREAT OF VIOLENCE?” to tenants. Tenants
have notified Plaintiff repeatedly of their fear of violence at the hands of Defendant Hoffman.
-8-WN
Campbell Decl. 4 § 3, 4, 8, 9, 10. Defendant Hoffman’s own doctor wrote a letter outlining his
fears of Mr. Hoffman’s enhanced likelihood of committing violence against his tenants. Campbell
Decl. 4 9.
Accordingly, Plaintiff has a duty to protect his tenants from violence by Defendant
Hoffman and Plaintiff could be held liable if Defendant Hoffman does commit an act of violence
against another tenant. Barber v. Chang 151 Cal.App.4" at 1464. Plaintiff has a legal right to evict
Defendants due to his potential liability for the threat of violence that Defendants pose to fellow
tenants. Plaintiffs can provide no triable issue of material fact to avoid this fact. As such,
Plaintiff's motion for summary judgment should be granted.
C. There Exists No Issue of Material Fact to Support Defendants’ Claimed
Affirmative Defenses
Defendants’ answer claims a number of affirmative defenses, none of which has any merit
and all of which should be dismissed by this Court.
First, Defendants claim that Plaintiff is bringing this action to retaliate against Defendants.
Defendants have shown and can show no evidence of Plaintiffs action being motivated by
retaliation, because the claim is simply not true. In fact, even in its answer, Defendants allege no
factual allegation to support this claim.
Second, Defendants claim that Plaintiff has brought this action to discriminate them.
Again, Defendants have shown and can show no evidence of Plaintiff's action being motivated by
discrimination, because the claim is simply not true. In fact, even in its answer, Defendants allege
no factual allegation to support this claim. Defendants have not even alleged that they are
members of a protected class.
Third, Defendants claim that Plaintiff's action violates City and County of San Francisco
Civil Code Sections 1954 and 1940.2(a). Notably, there is no such code. Even if we assume that
Defendants intended to claim California Civil Code Sections 1954 and 1940.2(a), those claims are
wholly without merit. Civil Code Section 1954 concerns the landlord’s ability to enter the
property. Landlord has not entered the property unlawfully at any time, and Defendants make no
factual allegations to suggest otherwise.B WON
Section 1940.2(a) prohibits a landlord from “[u]se, or threaten to use, force, willful threats,
or menacing conduct constituting a course of conduct that interferes with the tenant's quiet
enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm
in a reasonable person.” Again, these claims are wholly without merit and Defendants can point to
no facts to support the claim. Plaintiff has never threatened to use or used force, threats or
menacing conduct in any way against Defendants. Plaintiff is an elderly man, living in Vallejo,
California, who is rarely able to leave the community residence in which he resides. Plaintiff, nor
anyone representing Plaintff, has never engaged in such conduct against Plaintiff.
Fourth, Defendants assert the affirmative defense that they should not be evicted because
there exist defects in the apartment unit. Plaintiff wholly disputes Defendants’ claims and has in
fact repeatedly asked Defendant for permission to inspect the unit. This claim is also without
merit. Defendants can show no evidence that this claim is true. Even if the claim had some merit,
which it does not, it does not alleviate Defendants of their responsibilities under Rent Ordinance
Section 37.9(a)(3) and 37.9(a)(1)(B).
Finally, Defendants claim that Plaintiff's dominant motive is not one allowed by the Rent
Ordinance, because “services have been decreased without a corresponding decrease in rent.”
While the connection between a decrease in services and a dominant motive not allowed by law is
nonsensical, Plaintiff disputes this claim. Services have in no way been decreased and Defendants
can point to no evidence to support that claim. Even if the claim had some merit, which it does
not, it does not alleviate Defendants of their responsibilities under the Rent Ordinance.
Iv. CONCLUSION
Based on the foregoing, Plaintiff respectfully requests that this Court grant Plaintiff's
motion for summary judgment.
Dated: August 1, 2013 Respectfully Submitted,
WALSTON CROSS, Attorneys
By: Thomas J. O’Brif&a_)
Attorneys for Plaintiff Travis Campbell
-10-PROOF OF SERVICE
I, the undersigned, under the penalty of perjury, declare and say:
That I am a citizen of the United States, over the age of 18 years and not a party to, or
interested in, the within action. | am employed in the County of San Francisco, State of California.
My business address is 735 Montgomery St., Ste. 250. San Francisco, CA 94109.
On August 1, 2013, I served MEMORANDUM OF POINTS AND
AUTHORITES IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT together with this proof of service, on the parties in this action:
Catherine Danielson, Esq.
Homeless Advocacy Project
1360 Mission St., Ste. 201
San Francisco, CA 94103
Facsimile: (415) 575-3132
/____/ BY MAIL I placed each such sealed envelope, with postage thereon fully prepaid for first-
class mail, for collection and mailing at San Francisco, California, following ordinary business
practice. I am readily familiar with the practice for collection and processing of correspondence
with the United States Postal Service. Mail is deposited with the United States Postal Service daily
in the ordinary course of business.
/ / BY OVERNIGHT SERVICE I placed, in an envelope designated by the overnight
service carrier, with delivery fees paid or provided for, each such sealed envelope in a box or other|
facility regularly maintained by the overnight service.
/ xxx / BY PERSONAL SERVICE I caused each such envelope to be delivered by hand to the
address(es) noted above and left with a receptionist or other person in charge of the office at the
above address(es).
/xxx/ BY FACSIMILE By use of facsimile machine, I caused said document(s) to be
transmitted by facsimile machine to the number(s) indicated after the address(es) noted above. The}
transmission of the within document(s) was reported as complete and without error by the
facsimile machine. Pursuant to California Rules of Court, Rule 2009(i), I caused the facsimile
machine to print a record of the transmission, a copy of which is attached to this declaration.
Executed on August 1, 2013 at San Francisco, California.
Jason Bryan
-11-i “ °
(ORIC:HAL)
Orestes A. Cross, State Bar No. 250471
Thomas J. O’Brien, State Bar No. 274969
WALSTON CROSS, Attorneys
735 Montgomery Street, Suite 250
San Francisco, California 94111
Telephone: (415) 956-9200
Facsimile: (415) 956-9205
Attorneys for Plaintiff TRAVIS CAMPBELL
SUPERIOR COURT OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
TRAVIS CAMPBELL, Case No. CUD-11-639244
Plaintiff PLAINTIFF'S STATEMENT OF
° UNDISPUTED FACTS IN
SUPPORT OF MOTION FOR
v. SUMMARY JUDGMENT
KIMBERLY HATHAWAY, JOHN HOFFMAN, Date: August 6, 2013
DOES | through 20, inclusive, Time: 9:30 A.M.
. Dept: S01
-Defendants.
Plainttiff Travis Campbell submits the following statement of disputed material facts,
together with references to supporting evidence, pursuant to Code of Civil Procedure section 437c,
subd. (b), and Rules of Court, Rule 3.1350(b).
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND
MATERIAL FACTS AND SUPPORTING EVIDENCE
SUPPORTING EVIDENCE
1. Plaintiff Travis Campbell is the owner of a
residential apartment building located at 339
Lyon St., San Francisco, CA.
Proof: Campbell Decl. {1
2. Defendants Hoffman and Hathaway have
been tenants at 339 Lyon St., Apt. 2, San
Francisco, CA, for well over ten years.
Proof: Campbell Decl. § 2.
3. On September 29, 2011, Plaintiff noticed
Defendant Hathaway and Defendant
Hoffman with a 30-day Notice to Quit. That
Notice to.Quit alleged: (1) gross violations
of San Francisco Rent Ordinance Section
37.9(a)(3) for “creating a substantialinterference with the comfort, safety, or
enjoyment of landlord or tenants in the
building, due to Defendants’ terroristic
threats and threats of violence against fellow
tenants; (2) Habitual late payment of rent, in
violation of San Francisco Rent Ordinance
Section 37.9(a)(1)(B), and (3) Giving rent
checks which are frequently returned for
insufficient funds, in violation of San
Francisco Rent Ordinance 37.9(a)(1)(C).
Proof: Campbell Decl. § { 8-13. O’Brien
Decl. {.2; O’Brien Decl. Exhibit A.
4. On November 1, 2011, after Defendants
failed to vacate the unit by October 29, 2011,
per the notice to quit, this unlawful detainer
action was filed and served upon
Defendants.
Proof: O’Brien Decl. { 2.
5. Since 2007, Defendants have been a
nuisance and a danger to fellow tenants, and
continue to be so. Many tenants have
complained repeatedly about Defendants,
some even taking legal action or deciding to
move out, due to harassment, slander, threats
of violence, and terrorist death threats, by
Defendants.
Proof: Campbell Deel. § 3.
6. Plaintiff has lost 4 great deal of money in
lost rent due to units being vacated because
of Defendants, and the time and money
Plaintiff must expend to secure new tenants.
Proof: Campbell Decl. § 3.
7. In April 2011, this Court found that Mr.
Hoffman was a “CREDIBLE THREAT OF
VIOLENCE”, and issued a restraining order
for the protection of various tenants,
including a minor.
Proof: Campbell Decl. § 4, O’Brien Decl. §
8-9: Ex. H.
8. This Court granted a restraining order
against Mr. Hoffman in April 2011 after the
Court found that Mr. Hoffman had
repeatedly made terrorist death threats
against the tenants, and their minor child.
The tenants testified that Mr. Hoffman had
repeatedly made terrorist death threats, and
physically charged at their son, menacingly,
terrifying the boy. Mr. Hoffman had also
repeatedly screamed terrorist death threats at
-2-Nv
the tenants, and their minor son, from close
proximity, threatening violence against the
child, with spittle flying from his mouth onto
the terrified boy and his parents. Other
witnesses at that hearing testified that they
had seen Mr. Hoffman terrorizing the
tenants, and their minor son. Witnesses also
testified that Ms. Hathaway had repeatedly
slandered the tenants.
Proof: Campbell Decl. § 4, O’Brien Decl. J
9.
9. Shortly after the April 2011 restraining
order against Mr. Hoffman was granted, Mr.
Hoffman and Ms. Hathaway again became
delinquent in their rental payments to
Plaintiff. At one point, Defendants were
approximately five months behind on their
rent, from April 2011 until August 2011.
Proof: Campbell Devl. §§15, 7, Ex. A.
10. Plaintiff allows tenants a generous grace
period within which to pay rent without
being considered late. Thus, Defendants”
rent is due no later than the Sth of each
month. Any payment received after the 5th
of each month is considered late.
Proof: Campbell Decl. § 7.
11. Dating back to September 2007,
Defendants have paid rent late a total of 45
times in a period of 71 months, or 62% of
the time.
Proof: Campbell Decl. 4.7, Ex. A.
12. From September 2007 to September
2011, Defendants paid rent late 37 times in
48 months (77% of the time).
Proof: Campbell Decl. 47, Ex. A.
13. Defendants have paid rent late 8 times in
23 months (35% of the time) since the notice
to quit was served in September 2011.
Proof: Campbell Decl. 4.7, Ex. A.
14. Defendants have repeatedly delayed this
action by refusing to comply with discovery
requests and notices of depositions.
Proof: O’Brien Declaration {f 3-7.Dated: August 1, 2013
Respectfully Submitted,
WALSTON CROSS, Attorneys
By: thomas J. OB
Attorneys for Plainti is CampbellCo OD mI DH RF WN
RBM MY YN NN NK KY S| | ee Se Se Be Be Be Ss
ou A aA & YW NHN = SO we IN DH BF BW NY =
PROOF OF SERVICE
I, the undersigned, under the penalty of perjury, declare and say:
That I am a citizen of the United States, over the age of 18 years and not a party to, or
interested in, the within action. | am employed in the County of San Francisco, State of California.
My business address is 735 Montgomery St., Ste. 250. San Francisco, CA 94109.
On August 1, 2013, I served PLAINTIFF’S STATEMENT OF
UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
together with this proof of service, on the parties in this action:
Catherine Danielson, Esq.
Homeless Advocacy Project
1360 Mission St., Ste. 201
San Francisco, CA 94103
Facsimile: (415) 575-3132
/___/ BY MAIL I placed each such sealed envelope, with postage thereon fully prepaid for first-
class mail, for collection and mailing at San Francisco, California, following ordinary business
practice. | am readily familiar with the practice for collection and processing of correspondence
with the United States Postal Service. Mail is deposited with the United States Postal Service daily,
in the ordinary course of business.
/___/ BY OVERNIGHT SERVICE I placed, in an envelope designated by the overnight
service carrier, with delivery fees paid or provided for, each such sealed envelope in a box or other|
facility regularly maintained by the overnight service.
/ xxx / BY PERSONAL SERVICE I caused each such envelope to be delivered by hand to the
address(es) noted above and left with a receptionist or other person in charge of the office at the
above address(es).
/xxx/ BY FACSIMILE By use of facsimile machine, I caused said document(s) to be
transmitted by facsimile machine to the number(s) indicated after the address(es) noted above. The|
transmission of the within document(s) was reported as complete and without error by the
facsimile machine. Pursuant to California Rules of Court, Rule 2009(i), I caused the facsimile
machine to print a record of the transmission, a copy of which is attached to this declaration.
Executed on August 1, 2013 at San Francis California.
Jason BryanOrestes A. Cross, State Bar No. 250471
Thomas J. O’Brien, State Bar No. 274969
WALSTON CROSS, Attorneys
735 Montgomery Street, Suite 250
San Francisco, California 94111 ss
Telephone: (415) 956-9200 Pr» ¢
Facsimile: (415) 956-9205 "Pp,
%
ye
Attorneys for Plaintiff TRAVIS CAMPBELL a ey 4 op 1a) H
. 1,
. SSO Ny oO Cp
—,
SUPERIOR COURT OF CALIFORNIA
Up»
CITY AND COUNTY OF SAN FRANCISCO
TRAVIS CAMPBELL, Case No. CUD-11-639244
Plaintiff DECLARATION OF THOMAS J.
° O’BRIEN IN SUPPORT OF
PLAINTIFF’S MOTION FOR
v. SUMMARY JUDGMENT
KIMBERLY HATHAWAY, JOHN HOFFMAN, Date: August 6, 2013
DOES | through 20, inclusive, Time: 9:30 A.M.
Dept: 501
Defendants.
I, Thomas O’Brien, declare as follows:
1. [am an attorney licensed to practice in all state courts in California, the United States
District Courts for the Northem District of California and the Eastern District of California. I am
presently an-attorney at the law firm Walston Cross, P.C., and in that capacity represent Plaintiff
Travis Campbell in the above titled action.
2. On September 29, 2011, I asked acquaintance Paul Cavallero to serve upon Plaintiffs
Kimberly Hathaway and John Hoffman John Roeder a 30-day notice to quit. A true and correct
copy of that notice is attached hereto as Exhibit A. On November 1, 2011, I caused the unlawful
detainer complaint in this action to be filed, as Defendants had failed to vacate the premises by
October 29, 2011, pursuant to the notice to quit. A true and correct copy of the Unlawful Detainer
Complaint, including the proof of service of the 30-day notice to quit is attached hereto as Exhibit
B. Defendants do not dispute the validity of the service of this notice or the complaint in its
motion.3. In Spring and Summer 2012, I repeatedly attempted to get Defendants Hathaway and
Hoffman to appear for properly noticed depositions. Ms. Hathaway and Mr. Hoffman repeatedly
delayed their depositions and made excuse after excuse as to why they could not agree to a date in
a timely fashion. Eventually, Ms. Hathaway did appear for her deposition on May 10, 2012.
However, she informed me at that time that Mr. Hoffman was not presently in a condition to
appear for a deposition. Eventually, Mr. Hoffman’s deposition was noticed for August 2, 2012,
after Defendants repeatedly failed to provide dates that Mr. Hoffman could appear. Mr. Hoffman
failed to appear for that properly noticed deposition. True and correct copies of the
correspondence leading up to that deposition is attached hereto as Exhibit C. True and correct
copies of the deposition notices for May 11, 2012 and August 2, 2012 are attached hereto as
Exhibit D.
4. Out of respect for Defendants’ representations, Plaintiff decided to allow Defendants
some time before attempting to get Defendant Hoffman to appear for his deposition. In early
Spring of this year, I once again sent a series of letters, which Defendants never responded to.
Finally, on May 12, 2013, Defendant Hathaway responded to my e-mail, stating that she would
not produce Mr. Hoffman at deposition until she had secured counsel. A true and correct copy of
those letters is attached as Exhibit E.
5. Plaintiff allowed Defendant sometime to secure counsel, but once again did not hear
back from Defendants. Feeling that Plaintiff had been left no choice but to notice Defendant
Hoffman’s deposition and file a motion to compel if he once again refused to appear, I sent
Defendant a notice of deposition on June 24, 2013. That deposition was noticed for Friday, July
12, 2013. A true and correct copy of that deposition notice is attached as Exhibit F.
6. Plaintiff also properly noticed Defendant Hoffman for his deposition to take place on
August 1, 2013. True to form, and without a formal objection or a showing of cause, Defendant’s
counsel informed me that Defendant Hoffman would not appear for that deposition and in fact
Defendant Hoffman failed to show.
7. Defendants have repeatedly delayed discovery in this action. On May 22, 2012, this0 OND OH
Court granted Plaintiff's motion to compel written discovery and request for sanctions. A true and
correct copy of that order is attached hereto as Exhibit G.
8. On April 13, 2011, this Court granted a request for restraining order against Defendant
John Hoffman, brought by tenants in their building. That restraining order was granted due to the
fact that the Court agreed that Defendant Hoffman posed “a credible threat of violence” against his|
fellow tenants, including young children. A true and correct copy of that order is attached as
Exhibit H.
9. I personally attended that hearing and the following is my best recollection of the
testimony that supported the grant of that restraining order. The tenants showed the Court that Mr.
Hoffman had repeatedly menaced the tenants, and their minor child, for no reason whatsoever.
The tenants testified that Mr. Hoffman had repeatedly physically charged at their son, menacingly,
terrifying the boy and his parents. The tenants also testified that Mr. Hoffman had also repeatedly
screamed terrorist death threats at the tenants, and their son, from close proximity, with spittle
flying from his mouth onto the terrified boy and his parents. Other witnesses, fellow tenants, at
that hearing testified that they had seen Mr. Hoffman terrorizing the tenants, and their minor son,
and others testified that Defendants had repeatedly slandered the tenants.
10. Attached hereto as Exhibit I is a true and correct copy of Defendants’ answer in this
action. ,
11. Attached hereto as Exhibit J is a true and correct copy of the order denying
Defendants’ motion for summary judgment.
12. Attached hereto as Exhibit K is a true and correct copy of the Declaration of Travis
Campbell in Support of Plaintiffs Opposition to Defendants’ Motion for Summary Judgment.
I declare under penalty of perjury that the foregoing is true and correct and based on my
personal knowledge, that I am competent to testify as a witness, and that I would so testify if
called as a witness. Excecuted on August 1, 2013 in the City and County of San Francisco,
California.
Thomas J. O’Brien CJ)
-3-w
PROOF OF SERVICE
I, the undersigned, under the penalty of perjury, declare and say:
That I am a citizen of the United States, over the age of 18 years and not a party to, or
interested in, the within action. | am employed in the County of San Francisco, State of California.
My business address is 735 Montgomery St., Ste. 250. San Francisco, CA 94109.
On August 1, 2013, I served DECLARATION OF THOMAS J. O’BRIEN IN
SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT together with this
proof of service, on the parties in this action:
Catherine Danielson, Esq.
Homeless Advocacy Project
1360 Mission St., Ste. 201
San Francisco, CA 94103
Facsimile: (415) 575-3132
/___/ BY MAIL I placed each such sealed envelope, with postage thereon fully prepaid for first-
class mail, for collection and mailing at San Francisco, California, following ordinary business
practice. I am readily familiar with the practice for collection and processing of correspondence
with the United States Postal Service. Mail is deposited with the United States Postal Service daily|
in the ordinary course of business.
I / BY OVERNIGHT SERVICE I placed, in an envelope designated by the overnight
service carrier, with delivery fees paid or provided for, each such sealed envelope in a box or other}
facility regularly maintained by the overnight service.
/ xxx / BY PERSONAL SERVICE I caused each such envelope to be delivered by hand to the
address(es) noted above and left with a receptionist or other person in charge of the office at the
above address(es).
/ xxx / BY FACSIMILE By use of facsimile machine, I caused said document(s) to be
transmitted by facsimile machine to the number(s) indicated after the address(es) noted above. The|
transmission of the within document(s) was reported as complete and without error by the
facsimile machine. Pursuant to California Rules of Court, Rule 2009(i). I caused the facsimile
machine to print a record of the transmission, a copy of which is attached to this declaration.
Executed on August 1, 2013 at San Franci California.
Jason BryanEXHIBIT A~ ALSTON ~
ROSS
ATTORNEYS
September 29, 2011
Ms. Kimberly Hathaway and Mr. John Hoffman
339 Lyon St. Apt #2
San Francisco. CA 94117
THIRTY DAY NOTICE TO QUIT
Dear Ms. Hathaway and Mr. Hoffman,
THIS NOTICE COMPLIES WITH SAN FRANCISCO RENT STABILIZATION AND
ARBITRATION ORDINANCE, SECTIONS 37.9(A)(3) AND 37.9C
You are currently in possession of property at 339 Lyon St., Apt #2, San Francisco, CA
94117 (hereinafte: “THE PREMISES”).
This letter serves as a Thirty (30) Day Notice to Quit, as required under California Code
of Civil Procedure Section 1161.
You are being evicted from THE PREMISES, pursuant to The San Francisco Rent
Stabilization and Arbitration Ordinance, Section 37.9(a)(3). You are in violation Section
37.9(a)(3) by “creating a substantial interference with the comfort, safety or enjoyment of the
landlord or tenants if the building.”
Specifically. you have violated Section 37.9(a)(3), to include but not limited to, in the
following manner:
1) Interfering with the comfort, safety and enjoyment of your fellow tenants by
repeatedly making false noise complaints about your fellow tenants to the San
Francisco Police Department. These repeated and countless complaints have led
numerous tenants to move out due to your interference with their comfort and
enjoyment of the property they lawfully possessed and to seek numerous restraining
ordezs against you.
735 Montgomery Street, Suite 250 * San Francisco, California 94111 ° Tel.: (415) 956-9200 » Fax: (415) 956-92052). Mr. Hoffman has interfered with the comfort, safety and enjoyment of your fellow
tenants by repeatedly threatening and menacing them, including young children. Mr.
Hoffman's actions have led to a two year Restraining Order against him being
granted by the San Francisco Superior Court (Case No. CCH-10-571679) on April 13,
2011 for a “CREDIBLE THREAT OF VIOLENCE” against your fellow tenants. This
court order will expire on April 13, 2013. Additionally, you have claimed in open
Court. under penalty of perjury, that you are the Guardian ad litem for Mr. Hoffman.
Moreover, Mr. Hoffman has filed with the Court medical documents which go to his
mental instability, and speak specifically to the fact that Mr. Hoffman poses a danger
to himself and others. This fact, in conjunction with the previously mentioned
Restraining Order ordered by the San Francisco Superior Court for a “CREDIBLE
THREAT.OF VIOLENCE” demonstrates objectively that you and Mr. Hoffman are a
danger to those around you.
Interfering-with the comfort, safety and enjoyment of your fellow tenants by
repeatedly making false and slanderous statements to third parties with regard to their
activities within their apartment.
4) Interfering with the comfort, safety and enjoyment of your landlord by harassing
fellow tenants to the point that they terminate their lease with your landlord and seek
housing elsewhere, thus costing your landlord money in rent and time to seek new
tenants.
ua
In addition, you have violated 37.9(a)(1)(B) by habitually paying the rent late and you
have violated 37.9a)(1)(C) by giving checks which are frequently returned because there are
insufficient funds in-the checking account.
Please note that advice regarding this notice to vacate is available from the Residential
Rent Stabilization and Arbitration Board.
Attorney At LawEXHIBIT B\Grestes A. Cross, SBN 250471 mrt
WALSTON CROSS, B.C.
lontgomery St:, Ste. 2
TA 94111
San Franesee, CA $3336-9200 swxnaromar 415-956-9205
EMAL ADDRESS (Opsoray:
ATTORNEY FoR ‘iome): Plaintiff Travis Campbell
SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Francisco
street aooress: 400 McAllister St.
auc ooress. 400 McAllister St.
omy mozpcovs: San Francisco, CA 94102
aranounane: Civic Center Courthouse
PLainTiFe; Travis Campbell
DEFENDANT: Kimberly Hathaway, John Hoffman
doEs1T0 20__ .
COMPLAINT — UNLAWFUL DETAINER*
Jurisdiction (check all that apply):
[1 ACTION IS A LIMITED CIVIL CASE
Amount demanded [] does not exceed $10,000
1 exceeds $10,000 but does not exceed $25,000
BZ action 1S AN UNLIMITED CIVIL CASE (amount demanded exceeds $25,000)
1 ACTION Is RECLASSIFIED by this amended complaint or cross-complaint (check all that apply):
[1 from unlawful detainer to general uniimited civil (possession not in issue) 1 from timited to unlimited
(1 trom untawful detainer to general limited civit (possession not In Issue) [1 from unlimited to limited
1. PLAINTIFF (name each):
Travis Campbell
alleges causes of action against BEFENDANT (name each):
Kimberly Hathaway, John Hoffman
2. a. Plaintitis (1) CZ) anincividual over the age of 18 years. (4) [=] @ p
Preview
UU SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Aug-01-2013 01:22 pm Case Number: CUD-11-639244 Filing Date: Aug-01-2013 01:18 pm Filed by: ROSSALY DELAVEGA Juke Box: 001 Image: 04149372 MOTION FOR SUMMARY JUDGMENT, UNLAWFUL DETAINER TRAVIS CAMPBELL VS. KIMBERLY HATHAWAY et al 001004149372 Instructions: Please place this sheet on top of the document to be scanned.=) NI Orestes A. Cross, State Bar No. 250471 Thomas J. O’Brien, State Bar No. 274969 WALSTON CROSS, Attorneys 735 Montgomery Street, Suite 250 San Francisco, California 94111 Telephone: (415) 956-9200 Facsimile: (415) 956-9205 Attorneys for Plaintiff TRAVIS CAMPBELL SUPERIOR COURT OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO TRAVIS CAMPBELL, Case No. CUD-11-639244 a PLAINTIFF’S NOTICE OF Plaintiff, MOTION AND MOTION FOR SUMMARY JUDGMENT Vv. Date: August 6, 2013 KIMBERLY HATHAWAY, JOHN HOFFMAN, Time: 9:30 A.M. DOES 1 through 20, inclusive, Dept: 501 Defendants. TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN THAT ON August 6, 2013 at 9:30 A.M., or as soon thereafter as the matter can be heard, in Department 501 of the above-entitled Court, Plaintiff Travis Campbell will ask this Court for a motion for summary judgment. This motion will be based on this notice, the supporting Memorandum of Points and Authorities, the complete records and files in this action, declarations, all other matters the Court may properly consider, and on such other evidence that may be presented at the time of the hearing of this motion. Dated: August 1, 2013 Respectfully Submitted, WALSTON CROSS, Attorneys By: Thomas J. O’Brien Attorneys for Plaintiff T:PROOF OF SERVICE I, the undersigned, under the penalty of perjury, declare and say: That I am a citizen of the United States, over the age of 18 years and not a party to, or interested in, the within action. I am employed in the County of San Francisco, State of California. My business address is 735 Montgomery St., Ste. 250. San Francisco, CA 94109. On August 1, 2013, I served PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT together with this proof of service, on the parties in this action: Catherine Danielson, Esq. Homeless Advocacy Project 1360 Mission St., Ste. 201 San Francisco, CA 94103 Facsimile: (415) 575-3132 /___/ BY MAIL I placed each such sealed envelope, with postage thereon fully prepaid for first- class mail, for collection and mailing at San Francisco, California, following ordinary business practice. I am readily familiar with the practice for collection and processing of correspondence with the United States Postal Service. Mail is deposited with the United States Postal Service daily in the ordinary course of business. / / BY OVERNIGHT SERVICE I placed, in an envelope designated by the overnight service carrier, with delivery fees paid or provided for, each such sealed envelope in a box or other| facility regularly maintained by the overnight service. / xxx / BY PERSONAL SERVICE | caused each such envelope to be delivered by hand to the address(es) noted above and left with a receptionist or other person in charge of the office at the above address(es). / xxx/ BY FACSIMILE By use of facsimile machine, I caused said document(s) to be transmitted by facsirnile machine to the number(s) indicated after the address(es) noted above. The} transmission of the within document(s) was reported as complete and without error by the facsimile machine. Pursuant to California Rules of Court, Rule 2009(i), I caused the facsimile machine to print a record of the transmission, a copy of which is attached to this declaration. Executed on August 1, 2013 at San Francisco, California. Jason BryanOrestes A. Cross, State Bar No. 250471 Thomas J. O’Brien, State Bar No. 274969 SS ¢ WALSTON CROSS, Attorneys Cong 735 Montgomery Street, Suite 250 80 AN San Francisco, California 94111 GC Mp My, Telephone: (415) 956-9200 Gig 97 a, 6s Facsimile: (415) 956-9205 hy O17 . % Attorneys for Plaintiff TRAVIS CAMPBELL Up» ho SUPERIOR COURT OF CALIFORNIA / CITY AND COUNTY OF SAN FRANCISCO TRAVIS CAMPBELL, Case No. CUD-11-639244 Plaintiff MEMORANDUM OF POINTS ° AND AUTHORITES IN SUPPORT OF PLAINTIFF’S MOTION FOR ve SUMMARY JUDGMENT KIMBERLY HATHAWAY, JOHN HOFFMAN, Date: August 6, 2013 DOES 1 through 20, inclusive, Time: 9:30 A.M. Dept: 501 Defendants. Mt Mt Il Il Ml Mt Mt Ml Mt itWON INTRODUCTION This case is an unlawful detainer action based on a 30-day Notice to Quit, which was served on September 29, 2011, at Defendants’ residence, located 339 Lyon St., No. 2, San Francisco, CA 94117. Defendants rent this unit from Plaintiff, the owner of the building. The Notice to Quit was served due to Defendants’ numerous and repeated violations of the San Francisco Rent Stabilization and Arbitration Ordinance (hereinafter “Rent Ordinance”). The 30-Day Notice to Quit (O’Brien Decl. Ex. A) was served due to Defendants John Hoffman's and Kimberly Hathaway’s (1) habitually late payment of rent, in violation of Rent Ordinance Section 37.9(a)(1)(B); and (2) repeated and continuous interference with the comfort, safety and enjoyment of fellow tenants at said property, in violation of Rent Ordinance Section 37.9(a)(3). Specifically, in the four years leading up to the service of the 30-day notice to quit, Defendants were late with rent payments an astounding 37 times in 48 months, or 77% of the time, Even since the 30-day notice to quit was served in September 2011, Defendants have been late with payment of rent an additional 8 times in 23 months (35% of the time). Additionally, Defendants interfered with the comfort, safety and enjoyment of their fellow tenants by repeatedly making terrorist death threats toward tenants, including young children. Mr. Hoffman’s actions led to a two-year Restraining Order against him being granted by the San Francisco Superior Court (Case No. CCH-10-571679) on April 13, 2011, for what the Court termed a “CREDIBLE THREAT OF VIOLENCE?” against his fellow tenants, including young children. Moreover, Mr. Hoffman has filed with the Court medical documents, which evidence his mental instability, and speak specifically to the fact that Mr. Hoffman poses a real danger to himself and others. This fact, in conjunction with the finding by this Court on April 13, 2011, that Mr. Hoffman poses a “CREDIBLE THREAT OF VIOLENCE”, demonstrates objectively that Defendants are a danger to those around them, and have violated San Francisco Rent Stabilization and Arbitration Ordinance (hereinafter “Rent Ordinance”), Section 37.9(a)(3).wn 0 wm OND 10 ul 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 The unlawful detainer action is also based on Defendants Hathaway and Hoffman repeatedly interfering with the comfort, safety and enjoyment of their fellow tenants by repeatedly making false and slanderous statements to third parties, and for repeated attempts to harass tenants by making unfounded and unwarranted emergency calls to the San Francisco Police Department. These false reports made by Hoffman and Hathaway against their fellow tenants, interfered with the comfort, safety and enjoyment of Plaintiff by harassing fellow tenants to the point that they terminated their lease with Plaintiff and sought housing elsewhere, thus costing Plaintiff money in rent and time to seek new tenants, also in violation of Rent Ordinance Section 37.9(a)(3). Moreover, it should be noted that this case has been delayed repeatedly by Defendants” continual and repeated failures and refusals to produce Mr. Hoffman for his deposition and for past failures to respond to written discovery requests, which led to this Court awarding sanctions and ordering written discovery responses to be provided. Defendant Hoffman has failed to appear for four noticed deposition dates, including one set for August 1, 2013, the date this motion was filed. These delays and frustrations of justice, including delays on written discovery and depositions, which have already resulted in discovery sanctions against Defendants, should not be rewarded by allowing Defendants to remain residing at in the residence any longer. L STATEMENT OF FACTS Plaintiff Travis Campbell is the owner of a residential apartment building located at 339 Lyon St., San Francisco, CA. Campbell Declaration in Support of Plaintiff's Opposition to Defendants’ Motion for Summary Judgment (hereinafter “Campbell Decl.” and attached hereto as Exhibit K to O’Brien Decl.) § 1. Defendants Hoffman and Hathaway have been tenants at 339 Lyon St., Apt. 2, San Francisco, CA, for well over ten years. Campbell Decl. ] 2. Since 2007, Defendants have been a nuisance and a danger to fellow tenants, and continue to be so. Many tenants have complained repeatedly about Defendants, some even taking legal action or deciding to move out, due to harassment, slander, threats of violence, and terrorist death threats, by Defendants. Campbell Decl. § 3. This has cost Plaintiff a great deal of money in lost rent due tounits being vacated because of Defendants, and the time and money Plaintiff must expend to secure new tenants. Campbell Decl. 3. In April 2011, this Court found that Mr. Hoffman was a “CREDIBLE THREAT OF VIOLENCE”, and issued a restraining order for the protection of various tenants, including a minor. Campbell Decl. §] 4, O’Brien Declaration in Support of Plaintiff's Motion for Summary Judgment (hereinafter “O’Brien Decl.”) § 8. This restraining order was granted after this Court found that Mr. Hoffman had repeatedly menaced the tenants, and their minor child, for no reason whatsoever. The tenants testified that Mr. Hoffman had repeatedly made terrorist death threats, and physically charged at their son, menacingly, terrifying the boy. Mr. Hoffman had also repeatedly screamed tetrorist death threats at the tenants, and their minor son, from close proximity, threatening violence against the child, with spittle flying from his mouth onto the terrified boy and his parents. Campbell Decl. § 4, O’Brien Decl. § 9. Other witnesses at that hearing testified that they had seen Mr. Hoffman terrorizing the tenants, and their minor son. Witnesses also testified that Ms. Hathaway had repeatedly slandered the tenants. O’Brien Decl. 4 9. The Court saw fit to declare Mr. Hoffman poses a “CREDIBLE THREAT OF VIOLENCE” to fellow tenants, and to grant a two-year restraining order. O’Brien Decl. Ex. H. Additionally, several tenants have come to Plaintiff of late and informed him that they are in great fear for their safety from Mr. Hoffman and Ms. Hathaway. Tenants have informed Plaintiff that Mr. Hoffman and Mrs. Hathaway openly use recreational drugs heavily, and act aggressively and drug-induced in the halls of the building. Plaintiff has also received complaints that Defendants scream at other tenants, each other, and at no one in particular, causing great fear in other tenants. Tenants have informed Plaintiff that they are afraid for their safety due to fears that Defendants may commit acts of violence against them. Campbell Decl. { 8. Shortly after the restraining order against Mr. Hoffman was granted, Mr. Hoffman and Ms. Hathaway again became delinquent in their rental payments to Plaintiff. Campbell Decl. § 5. At one point, Defendants were approximately five months behind on their rent, from April 2011 until August 2011. Campbell Decl. Jf 5, 7, Ex. A.Plaintiff allows tenants a generous grace period within which to pay rent without being considered late. Thus, Defendants’ rent is due no later than the 5" of each month. Any payment received after the 5" of each month is considered late. Despite that generosity, dating back to September 2007, Deferdants have paid rent late a total of 45 times in a period of 71 months, or 62% of the time. From September 2007 to September 2011, Defendants paid rent late 37 times in 48 months (77% of the time). Additionally, Defendants have paid rent late 8 times in 23 months (35% of the time) since the notice to quit was served in September 2011. Campbell Decl. 7, Ex. A. Finally, as a result of multiple complaints from tenants regarding Defendants’ behavior and Defendants being a nuisance and a danger to fellow tenants, the costs associated with filling units that were vacated because of that behavior, and the Defendants’ habitual failure to pay rent on time, Plaintiff served on Defendants a 30-day notice to quit, on September 29, 2011. Campbell Decl. {| 8-13. O’Brien Decl. 2. On November 1, 2011, after Defendants failed to vacate the unit by October 29, 2011, per the notice to quit, this unlawful detainer action was filed and served upon Defendants. O’Brien Decl. § 2. II. PROCEDURAL HISTORY This casé was filed on November 1, 2011, following Defendants’ refusal to move-out pursuant to Plaintiff's 30-day Notice to Quit, served on September 29, 2011. Plaintiff anticipates that Defendants will raise an estoppel defense. This claim is without merit. In their answer, Defendants did not claim the defense of estoppel. O’Brien Decl. Ex. I. Indeed, in denying Defendants’ motion for summary judgment on July 12, 2013, this Court ruled that Defendants could not claim estoppel because they had not done so in their answer. When Defendants asked this Court for nunc pro tunc| leave to amend their answer, this Court denied that request as untimely. O’Brien Decl. Ex. J. Over the ensuring two years, Defendants have repeatedly delayed and obstructed Plaintiff’ g discovery attempts in an attempt to drag out this litigation and remain in the apartment for as long as possible. O’Brien Decl. { § 3-7. Those delays resulted in sanctions being awarded against Defendants for failure to respond to written discovery requests. O’Brien Decl. 7, Ex. G.Defendant Hoffman has yet to appear for his deposition, despite repeated attempts by Plaintiff to get him to do so. O’Brien Decl. § { 3-7. Beginning in March of this year, Plaintiff again attempted to schedule Defendant Hoffman’s deposition. Defendants repeatedly failed to respond to those attempts. O’Brien Decl. 4 4-5. Accordingly, Plaintiff served a notice of deposition for Defendant Hoffman on June 24, 2013, with that deposition to occur on July 12, 2013. Defendant again failed to appear. Finally, Defendant failed to appear for another properly noticed deposition on August 1, 2013, the day this motion was filed. Plaintiff intends to file a motion to compel Defendant Hoffman’s deposition and request for sanctions. O’Brien Decl. { 6. Il. LEGAL ARGUMENT A. Standard of Review California Code of Civil Procedure 1170.7 provides that, “[a] motion for summary judgment in an unlawful detainer case may be made at any time after the answer is filed upon giving five days notice. Summary judgment shall be granted or denied on the same basis as a motion under [Code of Civil Procedure] Section 437c.” Under summary judgment law, any party to an action, whether plaintiff or defendant, may move the court for summary judgment in his favor on a cause of action (i.e., claim) or defense. The court must grant the motion “if all the papers submitted show” that “there is no triable issue as| to any material fact” (Code Civ. Proc., § 437c, subd. (c))—that is, there is no issue requiring a trial] as to any fact that is necessary under the pleadings and, ultimately, the law (Riverside County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653, 92 Cal. Rptr.2d 29; Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 470, 84 Cal. Rptr.2d 810)—and that the “moving party is entitled to a judgment as a matter of law” (Code Civ. Proc., § 437c, subd. (c)). The moving party must support the motion with evidence including “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice” must or may be taken. (id., § 437c, subd. (b).) Likewise, any adverse party may oppose the motion, and, “where appropriate,” must present evidence including “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice” must orBw N = wn may be taken. (Ibid.) An adverse party who chooses to oppose the motion must be allowed a reasonable opportunity to do so. (id., § 437c, subd. (h).) In ruling on the motion, the court must consider all of the evidence and all of the inference: reasonably drawn therefrom (id., § 437c, subd. (c)), and must view such evidence [e.g., Molko v. Holy Spirit Assn. (1988), 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46; Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785) and such inferences (see, e.g., Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1520, 80 Cal.Rptr.2d 94; Ales-Peratis Foods Internal, Inc. v. American Can Co. (1985) 164 Cal.App.3d 277, 280, 209 Cal.Rptr. 917], in the light most favorable to the opposing party. A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross- defendant may not rely-upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Code Civ. Proc., § 437c, subd. (p)(1). B. There Are No Triable Issues of Material Fact Regarding Plaintiff’s Claims of Defendants’ Violation of Rent Ordinance Sections 37.9(a)(3) and 37.9(a)(1)(B) Defendants can present no triable issues of material fact to rebut the fact that (1) Plaintiff's claim that Defendants were habitually late with payment of rent between September 2007 and September 2011, in violation of Rent Ordinance Section 37.9(a)(1)(B); and (2) have made terrorist death threats and pose a credible threat of violence against fellow tenants, in violation of Rent Ordinance 37.9(a)(3). As such, the motion should be dismissed. 1. There Are No Triable Issues of Material Fact Regarding Plaintiff’s Claims| of Defendant’ Violation of Rent Ordinance 37.9(a)(1)(B) There exists no.triable issue of material facts as to whether Defendants violated Rent Ordinance Section 37.9(a)(1)(B), for habitually paying rent late, and thus Plaintiffs motion for summary judgment should be granted.Although California Courts have not defined what constitutes habitual late payment of rent, by any reasonable standard Defendants have been habitually late in their payment of rent, to an egregious degree. Defendants have a long history of late payment of rent. From April 2011 through August 2011, Defendants did not pay any rent. Campbell Decl. {4 5, 7, Ex. A. After eventually catching up in their rent payments, Defendants’ rent check was returned for insufficient funds in September 2011. Campbell Decl. § 6. Plaintiff maintains a very reasonable grace period in his lease with Defendants, allowing a 5-day grace period for payment of rent. This means that Defendants’ rent is due no later than the 5" of each month. However, as of July 2013 and dating back to September 2007, Defendants have paid rent late a total of 45 times in a period of 71 months, or 62% of the time. More egregiously, in the 4 years leading up to the service of the Notice to Quit in September 2011, Defendants paid rent late 37 times in 48 months (77% of the time). Amazingly, the 30-day Notice to Quit, and this pending litigation, did not change Defendants’ behavior. Since the service of the 30-day Notice to Quit, Defendants have paid rent late 8 times in 23 months (35% of the time). Campbell Decl. 4 7, Ex. A. On July 12, 2013, this Court denied Defendants’ motion for summary judgment. In that motion, Defendants argued that summary judgment should be granted based on a false claim that they had been making rental payments on time since the 30-day notice to quit was served on September 29, 2011. As noted above, this claim is false, as Defendants were late with their rent payment in October 2011, November 2011, December 2011, January 2012, February 2012, February 2013, and March 2013. See Campbell Decl. § 7, Ex. A. Defendants can present no evidence to rebut the position that they have been habitually late with payment of rent over the last four years. As noted above, from September 2007 to September 2011, Defendants were late on their rent payments 37 out of 48 months, or 77% of the time. Campbell Decl. 7, Ex. A. No reasonable jury could find that such a history of late payment of rent was not habitual.N CD mY D OH FF Ww Defendants cannot escape the facts. They are habitually late with their rent payments. There is simply no triable issue of material fact regarding Defendants’ habitually late payment of rent. This Court should grant Plaintiff's motion for summary judgment and force Defendants to vacate Plaintiff's property. 2. There Are No Triable Issues of Material Fact Regarding Plaintiff's 37.9(a)(3) Claims Plaintiff also asserts his unlawful detainer action on the grounds that he has a duty to protect tenants from acts of violence by third party tenants, if the landlord is on notice that the third party tenant has a propensity for violence. California Courts have held that landlords have a duty to protect tenants from acts of violence by third party tenants, if the landlord is on notice that the third party tenant has a propensity for violence. Barber v. Chang (2007) 151 Cal-App.4th 1456, 1464 [60 Cal.Rptr.3d 760, 767]. As noted at the outset, the unlawful detainer action was also based on Defendants Hathaway’s and Hoffman’s violations of Rent Ordinance 37.9(a)(3) for (1) posing what this Court deemed a “CREDIBLE THREAT OF VIOLENCE” against fellow tenants; (2) repeatedly interfering with the comfort, safety and enjoyment of their fellow tenants by repeatedly making false and slanderous statements to third parties; (3) repeated attempts to harass tenants by making bogus and unwarranted calls to the San Francisco Police Department to make false reports against those fellow tenants; and (4) interfering with the comfort, safety and enjoyment of Plaintiff by harassing fellow tenants to the point that they terminated their lease with Plaintiff and sought housing elsewhere, thus costing Plaintiff money in rent and time to seek new tenants. Plaintiff asserts his unlawful detainer action on the grounds that he has a duty to protect tenants from acts of violence by third party tenants, if the landlord is on notice that the third party tenant has a propensity for violence. As demonstrated in the statement of facts, Plaintiff Travis Campbell has been put on notice’ of Defendants’ propensity for violence. Campbell Decl. { { 3, 4, 8, 9, 10. This Court determined that Defendant Hoffman poses a “CREDIBLE THREAT OF VIOLENCE?” to tenants. Tenants have notified Plaintiff repeatedly of their fear of violence at the hands of Defendant Hoffman. -8-WN Campbell Decl. 4 § 3, 4, 8, 9, 10. Defendant Hoffman’s own doctor wrote a letter outlining his fears of Mr. Hoffman’s enhanced likelihood of committing violence against his tenants. Campbell Decl. 4 9. Accordingly, Plaintiff has a duty to protect his tenants from violence by Defendant Hoffman and Plaintiff could be held liable if Defendant Hoffman does commit an act of violence against another tenant. Barber v. Chang 151 Cal.App.4" at 1464. Plaintiff has a legal right to evict Defendants due to his potential liability for the threat of violence that Defendants pose to fellow tenants. Plaintiffs can provide no triable issue of material fact to avoid this fact. As such, Plaintiff's motion for summary judgment should be granted. C. There Exists No Issue of Material Fact to Support Defendants’ Claimed Affirmative Defenses Defendants’ answer claims a number of affirmative defenses, none of which has any merit and all of which should be dismissed by this Court. First, Defendants claim that Plaintiff is bringing this action to retaliate against Defendants. Defendants have shown and can show no evidence of Plaintiffs action being motivated by retaliation, because the claim is simply not true. In fact, even in its answer, Defendants allege no factual allegation to support this claim. Second, Defendants claim that Plaintiff has brought this action to discriminate them. Again, Defendants have shown and can show no evidence of Plaintiff's action being motivated by discrimination, because the claim is simply not true. In fact, even in its answer, Defendants allege no factual allegation to support this claim. Defendants have not even alleged that they are members of a protected class. Third, Defendants claim that Plaintiff's action violates City and County of San Francisco Civil Code Sections 1954 and 1940.2(a). Notably, there is no such code. Even if we assume that Defendants intended to claim California Civil Code Sections 1954 and 1940.2(a), those claims are wholly without merit. Civil Code Section 1954 concerns the landlord’s ability to enter the property. Landlord has not entered the property unlawfully at any time, and Defendants make no factual allegations to suggest otherwise.B WON Section 1940.2(a) prohibits a landlord from “[u]se, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant's quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person.” Again, these claims are wholly without merit and Defendants can point to no facts to support the claim. Plaintiff has never threatened to use or used force, threats or menacing conduct in any way against Defendants. Plaintiff is an elderly man, living in Vallejo, California, who is rarely able to leave the community residence in which he resides. Plaintiff, nor anyone representing Plaintff, has never engaged in such conduct against Plaintiff. Fourth, Defendants assert the affirmative defense that they should not be evicted because there exist defects in the apartment unit. Plaintiff wholly disputes Defendants’ claims and has in fact repeatedly asked Defendant for permission to inspect the unit. This claim is also without merit. Defendants can show no evidence that this claim is true. Even if the claim had some merit, which it does not, it does not alleviate Defendants of their responsibilities under Rent Ordinance Section 37.9(a)(3) and 37.9(a)(1)(B). Finally, Defendants claim that Plaintiff's dominant motive is not one allowed by the Rent Ordinance, because “services have been decreased without a corresponding decrease in rent.” While the connection between a decrease in services and a dominant motive not allowed by law is nonsensical, Plaintiff disputes this claim. Services have in no way been decreased and Defendants can point to no evidence to support that claim. Even if the claim had some merit, which it does not, it does not alleviate Defendants of their responsibilities under the Rent Ordinance. Iv. CONCLUSION Based on the foregoing, Plaintiff respectfully requests that this Court grant Plaintiff's motion for summary judgment. Dated: August 1, 2013 Respectfully Submitted, WALSTON CROSS, Attorneys By: Thomas J. O’Brif&a_) Attorneys for Plaintiff Travis Campbell -10-PROOF OF SERVICE I, the undersigned, under the penalty of perjury, declare and say: That I am a citizen of the United States, over the age of 18 years and not a party to, or interested in, the within action. | am employed in the County of San Francisco, State of California. My business address is 735 Montgomery St., Ste. 250. San Francisco, CA 94109. On August 1, 2013, I served MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT together with this proof of service, on the parties in this action: Catherine Danielson, Esq. Homeless Advocacy Project 1360 Mission St., Ste. 201 San Francisco, CA 94103 Facsimile: (415) 575-3132 /____/ BY MAIL I placed each such sealed envelope, with postage thereon fully prepaid for first- class mail, for collection and mailing at San Francisco, California, following ordinary business practice. I am readily familiar with the practice for collection and processing of correspondence with the United States Postal Service. Mail is deposited with the United States Postal Service daily in the ordinary course of business. / / BY OVERNIGHT SERVICE I placed, in an envelope designated by the overnight service carrier, with delivery fees paid or provided for, each such sealed envelope in a box or other| facility regularly maintained by the overnight service. / xxx / BY PERSONAL SERVICE I caused each such envelope to be delivered by hand to the address(es) noted above and left with a receptionist or other person in charge of the office at the above address(es). /xxx/ BY FACSIMILE By use of facsimile machine, I caused said document(s) to be transmitted by facsimile machine to the number(s) indicated after the address(es) noted above. The} transmission of the within document(s) was reported as complete and without error by the facsimile machine. Pursuant to California Rules of Court, Rule 2009(i), I caused the facsimile machine to print a record of the transmission, a copy of which is attached to this declaration. Executed on August 1, 2013 at San Francisco, California. Jason Bryan -11-i “ ° (ORIC:HAL) Orestes A. Cross, State Bar No. 250471 Thomas J. O’Brien, State Bar No. 274969 WALSTON CROSS, Attorneys 735 Montgomery Street, Suite 250 San Francisco, California 94111 Telephone: (415) 956-9200 Facsimile: (415) 956-9205 Attorneys for Plaintiff TRAVIS CAMPBELL SUPERIOR COURT OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO TRAVIS CAMPBELL, Case No. CUD-11-639244 Plaintiff PLAINTIFF'S STATEMENT OF ° UNDISPUTED FACTS IN SUPPORT OF MOTION FOR v. SUMMARY JUDGMENT KIMBERLY HATHAWAY, JOHN HOFFMAN, Date: August 6, 2013 DOES | through 20, inclusive, Time: 9:30 A.M. . Dept: S01 -Defendants. Plainttiff Travis Campbell submits the following statement of disputed material facts, together with references to supporting evidence, pursuant to Code of Civil Procedure section 437c, subd. (b), and Rules of Court, Rule 3.1350(b). MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND MATERIAL FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 1. Plaintiff Travis Campbell is the owner of a residential apartment building located at 339 Lyon St., San Francisco, CA. Proof: Campbell Decl. {1 2. Defendants Hoffman and Hathaway have been tenants at 339 Lyon St., Apt. 2, San Francisco, CA, for well over ten years. Proof: Campbell Decl. § 2. 3. On September 29, 2011, Plaintiff noticed Defendant Hathaway and Defendant Hoffman with a 30-day Notice to Quit. That Notice to.Quit alleged: (1) gross violations of San Francisco Rent Ordinance Section 37.9(a)(3) for “creating a substantialinterference with the comfort, safety, or enjoyment of landlord or tenants in the building, due to Defendants’ terroristic threats and threats of violence against fellow tenants; (2) Habitual late payment of rent, in violation of San Francisco Rent Ordinance Section 37.9(a)(1)(B), and (3) Giving rent checks which are frequently returned for insufficient funds, in violation of San Francisco Rent Ordinance 37.9(a)(1)(C). Proof: Campbell Decl. § { 8-13. O’Brien Decl. {.2; O’Brien Decl. Exhibit A. 4. On November 1, 2011, after Defendants failed to vacate the unit by October 29, 2011, per the notice to quit, this unlawful detainer action was filed and served upon Defendants. Proof: O’Brien Decl. { 2. 5. Since 2007, Defendants have been a nuisance and a danger to fellow tenants, and continue to be so. Many tenants have complained repeatedly about Defendants, some even taking legal action or deciding to move out, due to harassment, slander, threats of violence, and terrorist death threats, by Defendants. Proof: Campbell Deel. § 3. 6. Plaintiff has lost 4 great deal of money in lost rent due to units being vacated because of Defendants, and the time and money Plaintiff must expend to secure new tenants. Proof: Campbell Decl. § 3. 7. In April 2011, this Court found that Mr. Hoffman was a “CREDIBLE THREAT OF VIOLENCE”, and issued a restraining order for the protection of various tenants, including a minor. Proof: Campbell Decl. § 4, O’Brien Decl. § 8-9: Ex. H. 8. This Court granted a restraining order against Mr. Hoffman in April 2011 after the Court found that Mr. Hoffman had repeatedly made terrorist death threats against the tenants, and their minor child. The tenants testified that Mr. Hoffman had repeatedly made terrorist death threats, and physically charged at their son, menacingly, terrifying the boy. Mr. Hoffman had also repeatedly screamed terrorist death threats at -2-Nv the tenants, and their minor son, from close proximity, threatening violence against the child, with spittle flying from his mouth onto the terrified boy and his parents. Other witnesses at that hearing testified that they had seen Mr. Hoffman terrorizing the tenants, and their minor son. Witnesses also testified that Ms. Hathaway had repeatedly slandered the tenants. Proof: Campbell Decl. § 4, O’Brien Decl. J 9. 9. Shortly after the April 2011 restraining order against Mr. Hoffman was granted, Mr. Hoffman and Ms. Hathaway again became delinquent in their rental payments to Plaintiff. At one point, Defendants were approximately five months behind on their rent, from April 2011 until August 2011. Proof: Campbell Devl. §§15, 7, Ex. A. 10. Plaintiff allows tenants a generous grace period within which to pay rent without being considered late. Thus, Defendants” rent is due no later than the Sth of each month. Any payment received after the 5th of each month is considered late. Proof: Campbell Decl. § 7. 11. Dating back to September 2007, Defendants have paid rent late a total of 45 times in a period of 71 months, or 62% of the time. Proof: Campbell Decl. 4.7, Ex. A. 12. From September 2007 to September 2011, Defendants paid rent late 37 times in 48 months (77% of the time). Proof: Campbell Decl. 47, Ex. A. 13. Defendants have paid rent late 8 times in 23 months (35% of the time) since the notice to quit was served in September 2011. Proof: Campbell Decl. 4.7, Ex. A. 14. Defendants have repeatedly delayed this action by refusing to comply with discovery requests and notices of depositions. Proof: O’Brien Declaration {f 3-7.Dated: August 1, 2013 Respectfully Submitted, WALSTON CROSS, Attorneys By: thomas J. OB Attorneys for Plainti is CampbellCo OD mI DH RF WN RBM MY YN NN NK KY S| | ee Se Se Be Be Be Ss ou A aA & YW NHN = SO we IN DH BF BW NY = PROOF OF SERVICE I, the undersigned, under the penalty of perjury, declare and say: That I am a citizen of the United States, over the age of 18 years and not a party to, or interested in, the within action. | am employed in the County of San Francisco, State of California. My business address is 735 Montgomery St., Ste. 250. San Francisco, CA 94109. On August 1, 2013, I served PLAINTIFF’S STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT together with this proof of service, on the parties in this action: Catherine Danielson, Esq. Homeless Advocacy Project 1360 Mission St., Ste. 201 San Francisco, CA 94103 Facsimile: (415) 575-3132 /___/ BY MAIL I placed each such sealed envelope, with postage thereon fully prepaid for first- class mail, for collection and mailing at San Francisco, California, following ordinary business practice. | am readily familiar with the practice for collection and processing of correspondence with the United States Postal Service. Mail is deposited with the United States Postal Service daily, in the ordinary course of business. /___/ BY OVERNIGHT SERVICE I placed, in an envelope designated by the overnight service carrier, with delivery fees paid or provided for, each such sealed envelope in a box or other| facility regularly maintained by the overnight service. / xxx / BY PERSONAL SERVICE I caused each such envelope to be delivered by hand to the address(es) noted above and left with a receptionist or other person in charge of the office at the above address(es). /xxx/ BY FACSIMILE By use of facsimile machine, I caused said document(s) to be transmitted by facsimile machine to the number(s) indicated after the address(es) noted above. The| transmission of the within document(s) was reported as complete and without error by the facsimile machine. Pursuant to California Rules of Court, Rule 2009(i), I caused the facsimile machine to print a record of the transmission, a copy of which is attached to this declaration. Executed on August 1, 2013 at San Francis California. Jason BryanOrestes A. Cross, State Bar No. 250471 Thomas J. O’Brien, State Bar No. 274969 WALSTON CROSS, Attorneys 735 Montgomery Street, Suite 250 San Francisco, California 94111 ss Telephone: (415) 956-9200 Pr» ¢ Facsimile: (415) 956-9205 "Pp, % ye Attorneys for Plaintiff TRAVIS CAMPBELL a ey 4 op 1a) H . 1, . SSO Ny oO Cp —, SUPERIOR COURT OF CALIFORNIA Up» CITY AND COUNTY OF SAN FRANCISCO TRAVIS CAMPBELL, Case No. CUD-11-639244 Plaintiff DECLARATION OF THOMAS J. ° O’BRIEN IN SUPPORT OF PLAINTIFF’S MOTION FOR v. SUMMARY JUDGMENT KIMBERLY HATHAWAY, JOHN HOFFMAN, Date: August 6, 2013 DOES | through 20, inclusive, Time: 9:30 A.M. Dept: 501 Defendants. I, Thomas O’Brien, declare as follows: 1. [am an attorney licensed to practice in all state courts in California, the United States District Courts for the Northem District of California and the Eastern District of California. I am presently an-attorney at the law firm Walston Cross, P.C., and in that capacity represent Plaintiff Travis Campbell in the above titled action. 2. On September 29, 2011, I asked acquaintance Paul Cavallero to serve upon Plaintiffs Kimberly Hathaway and John Hoffman John Roeder a 30-day notice to quit. A true and correct copy of that notice is attached hereto as Exhibit A. On November 1, 2011, I caused the unlawful detainer complaint in this action to be filed, as Defendants had failed to vacate the premises by October 29, 2011, pursuant to the notice to quit. A true and correct copy of the Unlawful Detainer Complaint, including the proof of service of the 30-day notice to quit is attached hereto as Exhibit B. Defendants do not dispute the validity of the service of this notice or the complaint in its motion.3. In Spring and Summer 2012, I repeatedly attempted to get Defendants Hathaway and Hoffman to appear for properly noticed depositions. Ms. Hathaway and Mr. Hoffman repeatedly delayed their depositions and made excuse after excuse as to why they could not agree to a date in a timely fashion. Eventually, Ms. Hathaway did appear for her deposition on May 10, 2012. However, she informed me at that time that Mr. Hoffman was not presently in a condition to appear for a deposition. Eventually, Mr. Hoffman’s deposition was noticed for August 2, 2012, after Defendants repeatedly failed to provide dates that Mr. Hoffman could appear. Mr. Hoffman failed to appear for that properly noticed deposition. True and correct copies of the correspondence leading up to that deposition is attached hereto as Exhibit C. True and correct copies of the deposition notices for May 11, 2012 and August 2, 2012 are attached hereto as Exhibit D. 4. Out of respect for Defendants’ representations, Plaintiff decided to allow Defendants some time before attempting to get Defendant Hoffman to appear for his deposition. In early Spring of this year, I once again sent a series of letters, which Defendants never responded to. Finally, on May 12, 2013, Defendant Hathaway responded to my e-mail, stating that she would not produce Mr. Hoffman at deposition until she had secured counsel. A true and correct copy of those letters is attached as Exhibit E. 5. Plaintiff allowed Defendant sometime to secure counsel, but once again did not hear back from Defendants. Feeling that Plaintiff had been left no choice but to notice Defendant Hoffman’s deposition and file a motion to compel if he once again refused to appear, I sent Defendant a notice of deposition on June 24, 2013. That deposition was noticed for Friday, July 12, 2013. A true and correct copy of that deposition notice is attached as Exhibit F. 6. Plaintiff also properly noticed Defendant Hoffman for his deposition to take place on August 1, 2013. True to form, and without a formal objection or a showing of cause, Defendant’s counsel informed me that Defendant Hoffman would not appear for that deposition and in fact Defendant Hoffman failed to show. 7. Defendants have repeatedly delayed discovery in this action. On May 22, 2012, this0 OND OH Court granted Plaintiff's motion to compel written discovery and request for sanctions. A true and correct copy of that order is attached hereto as Exhibit G. 8. On April 13, 2011, this Court granted a request for restraining order against Defendant John Hoffman, brought by tenants in their building. That restraining order was granted due to the fact that the Court agreed that Defendant Hoffman posed “a credible threat of violence” against his| fellow tenants, including young children. A true and correct copy of that order is attached as Exhibit H. 9. I personally attended that hearing and the following is my best recollection of the testimony that supported the grant of that restraining order. The tenants showed the Court that Mr. Hoffman had repeatedly menaced the tenants, and their minor child, for no reason whatsoever. The tenants testified that Mr. Hoffman had repeatedly physically charged at their son, menacingly, terrifying the boy and his parents. The tenants also testified that Mr. Hoffman had also repeatedly screamed terrorist death threats at the tenants, and their son, from close proximity, with spittle flying from his mouth onto the terrified boy and his parents. Other witnesses, fellow tenants, at that hearing testified that they had seen Mr. Hoffman terrorizing the tenants, and their minor son, and others testified that Defendants had repeatedly slandered the tenants. 10. Attached hereto as Exhibit I is a true and correct copy of Defendants’ answer in this action. , 11. Attached hereto as Exhibit J is a true and correct copy of the order denying Defendants’ motion for summary judgment. 12. Attached hereto as Exhibit K is a true and correct copy of the Declaration of Travis Campbell in Support of Plaintiffs Opposition to Defendants’ Motion for Summary Judgment. I declare under penalty of perjury that the foregoing is true and correct and based on my personal knowledge, that I am competent to testify as a witness, and that I would so testify if called as a witness. Excecuted on August 1, 2013 in the City and County of San Francisco, California. Thomas J. O’Brien CJ) -3-w PROOF OF SERVICE I, the undersigned, under the penalty of perjury, declare and say: That I am a citizen of the United States, over the age of 18 years and not a party to, or interested in, the within action. | am employed in the County of San Francisco, State of California. My business address is 735 Montgomery St., Ste. 250. San Francisco, CA 94109. On August 1, 2013, I served DECLARATION OF THOMAS J. O’BRIEN IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT together with this proof of service, on the parties in this action: Catherine Danielson, Esq. Homeless Advocacy Project 1360 Mission St., Ste. 201 San Francisco, CA 94103 Facsimile: (415) 575-3132 /___/ BY MAIL I placed each such sealed envelope, with postage thereon fully prepaid for first- class mail, for collection and mailing at San Francisco, California, following ordinary business practice. I am readily familiar with the practice for collection and processing of correspondence with the United States Postal Service. Mail is deposited with the United States Postal Service daily| in the ordinary course of business. I / BY OVERNIGHT SERVICE I placed, in an envelope designated by the overnight service carrier, with delivery fees paid or provided for, each such sealed envelope in a box or other} facility regularly maintained by the overnight service. / xxx / BY PERSONAL SERVICE I caused each such envelope to be delivered by hand to the address(es) noted above and left with a receptionist or other person in charge of the office at the above address(es). / xxx / BY FACSIMILE By use of facsimile machine, I caused said document(s) to be transmitted by facsimile machine to the number(s) indicated after the address(es) noted above. The| transmission of the within document(s) was reported as complete and without error by the facsimile machine. Pursuant to California Rules of Court, Rule 2009(i). I caused the facsimile machine to print a record of the transmission, a copy of which is attached to this declaration. Executed on August 1, 2013 at San Franci California. Jason BryanEXHIBIT A~ ALSTON ~ ROSS ATTORNEYS September 29, 2011 Ms. Kimberly Hathaway and Mr. John Hoffman 339 Lyon St. Apt #2 San Francisco. CA 94117 THIRTY DAY NOTICE TO QUIT Dear Ms. Hathaway and Mr. Hoffman, THIS NOTICE COMPLIES WITH SAN FRANCISCO RENT STABILIZATION AND ARBITRATION ORDINANCE, SECTIONS 37.9(A)(3) AND 37.9C You are currently in possession of property at 339 Lyon St., Apt #2, San Francisco, CA 94117 (hereinafte: “THE PREMISES”). This letter serves as a Thirty (30) Day Notice to Quit, as required under California Code of Civil Procedure Section 1161. You are being evicted from THE PREMISES, pursuant to The San Francisco Rent Stabilization and Arbitration Ordinance, Section 37.9(a)(3). You are in violation Section 37.9(a)(3) by “creating a substantial interference with the comfort, safety or enjoyment of the landlord or tenants if the building.” Specifically. you have violated Section 37.9(a)(3), to include but not limited to, in the following manner: 1) Interfering with the comfort, safety and enjoyment of your fellow tenants by repeatedly making false noise complaints about your fellow tenants to the San Francisco Police Department. These repeated and countless complaints have led numerous tenants to move out due to your interference with their comfort and enjoyment of the property they lawfully possessed and to seek numerous restraining ordezs against you. 735 Montgomery Street, Suite 250 * San Francisco, California 94111 ° Tel.: (415) 956-9200 » Fax: (415) 956-92052). Mr. Hoffman has interfered with the comfort, safety and enjoyment of your fellow tenants by repeatedly threatening and menacing them, including young children. Mr. Hoffman's actions have led to a two year Restraining Order against him being granted by the San Francisco Superior Court (Case No. CCH-10-571679) on April 13, 2011 for a “CREDIBLE THREAT OF VIOLENCE” against your fellow tenants. This court order will expire on April 13, 2013. Additionally, you have claimed in open Court. under penalty of perjury, that you are the Guardian ad litem for Mr. Hoffman. Moreover, Mr. Hoffman has filed with the Court medical documents which go to his mental instability, and speak specifically to the fact that Mr. Hoffman poses a danger to himself and others. This fact, in conjunction with the previously mentioned Restraining Order ordered by the San Francisco Superior Court for a “CREDIBLE THREAT.OF VIOLENCE” demonstrates objectively that you and Mr. Hoffman are a danger to those around you. Interfering-with the comfort, safety and enjoyment of your fellow tenants by repeatedly making false and slanderous statements to third parties with regard to their activities within their apartment. 4) Interfering with the comfort, safety and enjoyment of your landlord by harassing fellow tenants to the point that they terminate their lease with your landlord and seek housing elsewhere, thus costing your landlord money in rent and time to seek new tenants. ua In addition, you have violated 37.9(a)(1)(B) by habitually paying the rent late and you have violated 37.9a)(1)(C) by giving checks which are frequently returned because there are insufficient funds in-the checking account. Please note that advice regarding this notice to vacate is available from the Residential Rent Stabilization and Arbitration Board. Attorney At LawEXHIBIT B\Grestes A. Cross, SBN 250471 mrt WALSTON CROSS, B.C. lontgomery St:, Ste. 2 TA 94111 San Franesee, CA $3336-9200 swxnaromar 415-956-9205 EMAL ADDRESS (Opsoray: ATTORNEY FoR ‘iome): Plaintiff Travis Campbell SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Francisco street aooress: 400 McAllister St. auc ooress. 400 McAllister St. omy mozpcovs: San Francisco, CA 94102 aranounane: Civic Center Courthouse PLainTiFe; Travis Campbell DEFENDANT: Kimberly Hathaway, John Hoffman doEs1T0 20__ . COMPLAINT — UNLAWFUL DETAINER* Jurisdiction (check all that apply): [1 ACTION IS A LIMITED CIVIL CASE Amount demanded [] does not exceed $10,000 1 exceeds $10,000 but does not exceed $25,000 BZ action 1S AN UNLIMITED CIVIL CASE (amount demanded exceeds $25,000) 1 ACTION Is RECLASSIFIED by this amended complaint or cross-complaint (check all that apply): [1 from unlawful detainer to general uniimited civil (possession not in issue) 1 from timited to unlimited (1 trom untawful detainer to general limited civit (possession not In Issue) [1 from unlimited to limited 1. PLAINTIFF (name each): Travis Campbell alleges causes of action against BEFENDANT (name each): Kimberly Hathaway, John Hoffman 2. a. Plaintitis (1) CZ) anincividual over the age of 18 years. (4) [=] @ p