Motion for Summary Judgment in CONNAN KING ET AL VS. GREGORY JONES ET AL| Trellis.Law

On October 11, 2018 a Motion-Secondary was filed involving a dispute between Glaser, Alana, King, Connan, Shekhar, Div, and Does 1 To 25 Inclusive, Jones, Gregory, for WRONGFUL EVICTION in the District Court of San Francisco County.

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1 Eric L. Toscano, Esq. (SBN 268235)
eric@tenantlawgroupsf.com
2 Kristen E. Drake, Esq. (SBN 202827) ELECTRONICALLY

3
kristen@tenantlawgroupsf.com F I L E D
Ryan M. Herrera, Esq. (SBN 320865) Superior Court of California,

ryan@tenantlawgroupsf.com
County of San Francisco
4 TENANT LAW GROUP, PC 03/27/2020
649 Mission Street, 5th Floor Clerk of the Court
5 San Francisco, CA 94105-4128 BY: ANGELICA SUNGA
Deputy Clerk
6 Tel: (888) 510-7511
Fax: (888) 376-1662
7
Attorneys for Plaintiffs CONNAN KING,
8 DIV SHEKHAR, and ALANA GLASER
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
11 UNLIMITED JURISDICTION
12
CONNAN KING, an Individual; DIV Case No. CGC-18-570477
13 SHEKHAR, an Individual; and ALANA
GLASER, an Individual; PLAINTIFFS’ OPPOSITION TO
14 DEFENDANT’S MOTION FOR
15 Plaintiffs, SUMMARY JUDGMENT

16 v. TELEPHONE APPEARANCE
17 GREGORY JONES, an Individual; and DOES Date: April 10, 2020
18 1 through 25, inclusive; Time: 9:30 a.m.
Dep’t: 501
19 Defendants.
Trial Date: May 11, 2020
20
21
22 Plaintiffs Connan King, Div Shekhar and Alana Glaser (“Plaintiffs”) hereby submit this
23 brief in opposition to Defendant Gregory Jones’ Motion for Summary Judgment.
24 I. INTRODUCTION
25 This case arises out of Plaintiffs’ tenancy at the residential rental property located at 981
26 Guerrero Street, San Francisco, CA 94110-2225 (“the Premises”). In February 2014, Defendant
27 Gregory Jones (“Defendant”) met with Plaintiff Connan King and his then-roommates Angela
28 Knotts and Don Hoffman, to increase their rent from $2,900.00 to $4,000.00, advising them that

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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
1 otherwise, it “didn’t make sense” for him, adding that if he did not receive this rent, he would be
2 forced to sell the Premises. Fearful of losing their rent-controlled apartment, they reluctantly
3 agreed to pay an increased rent of $3,500.00 per month. In March 2015, Defendant approached
4 Plaintiffs regarding raising the monthly rent to $4,000.00 per month, to which Plaintiffs would not
5 agree. Defendant again demanded $4,000.00 per month in rent in June 2015, advising Plaintiffs
6 that he would have to move in if they did not pay it. On or about December 1, 2015, Defendant
7 served Plaintiffs with a Sixty-Day Notice of Termination of Tenancy, and Plaintiffs were forced to
8 vacate in February 2016 pursuant to an owner move-in eviction.
9 Plaintiffs later became aware that Defendant did not reside at the Premises. Rather, he
10 used it as a short-term rental. Specifically, in December 2017, Mr. Shekhar knocked on the door
11 of the Premises and a young man with an infant answered the door. The young man appeared to
12 be in his thirties, while the Defendant appears to be in his late fifties. Another friend who resided
13 near the Premises reported seeing a family, but not Mr. Jones, living at the property. Once
14 becoming aware in December 2017 that the owner move-in eviction was improper, Plaintiff filed
15 this lawsuit less than a year later on October 11, 2018.
16 Defendant’s Motion for Summary Judgment based on the statute of limitations fails as the
17 delayed discovery rule applies, and Plaintiffs filed their complaint well within the one-year statute
18 of limitations. Defendant’s Motion should therefore be denied in its entirety.
19 II. FACTS
20 A. The Parties And The Lease.
21 Connan King resided at the Premises from on or about November 2004 to on or about
22 February 24, 2016. (Complaint, attached as Exhibit A to the moving Declaration of Diane E.
23 Pritchard (“Pritchard Decl.”), ¶ 1.) Div Shekhar resided at the Premises from on or about
24 February 1, 2015 to on or about February 24, 2016. (Id. at ¶ 2.) Alana Glaser resided at the
25 Premises from on or about June 1, 2015 to on or about December 2015. (Id. at ¶ 3.) At all times
26 relevant to the events described in the Complaint, Gregory Jones owned and managed the
27 Premises. (Id. at ¶ 4.)
28 In or about November 2004, Connan King on the one hand and Defendant on the other

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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
1 entered into a written lease (“the Lease”) for the property at 981 Guerrero Street, San Francisco,
2 CA 94110-2225 (“the Premises”), a three-bedroom residential rental unit built in 1900 in San
3 Francisco’s Mission district and subject to the San Francisco Rent Stabilization and Arbitration
4 Ordinance. (Id. at ¶ 12.) The Lease term established a tenancy on or about November 2004,
5 continuing month-to-month thereafter, with monthly rent in the amount of $2,700.00. (Id.)
6 Subsequently, Mr. King informed Mr. Jones that Mr. Shekhar and Ms. Glaser would be moving
7 into the Premises and Mr. Jones consented. (Id. at ¶¶ 13–14.)
8 B. Defendant’s Actual And Attempted Rent Increases.
9 In February 2014, Mr. Jones subsequently met with Mr. King and the two other then-
10 tenants at the Premises. At the time, the three tenants were paying $2,900.00 per month in rent –
11 the same amount they had been paying since December 2010. During this meeting, Mr. Jones
12 stated he needed at least $4,000.00 per month in rent because it otherwise “didn’t make sense” for
13 him, adding that if he did not receive this rent, he would be forced to sell the Premises. The
14 tenants, fearful of losing their rent-controlled apartment, reluctantly agreed to pay an increased
15 rent of $3,500.00 per month. Additionally, they agreed to begin paying for utilities for the in-law
16 unit, which shared a meter with the Premises. Previously, the tenants had been splitting the bill.
17 (Id. at ¶ 22.)
18 In March 2015, Mr. Jones approached Mr. King in person at the Premises and stated he
19 would be raising the monthly rent to $4,000.00 per month. Mr. King told Mr. Jones he would
20 need to discuss it with his other two roommates, Mr. Shekhar and Ms. Glaser. Plaintiffs agreed
21 they would not accept the rent increase because they believed the Premises were still subject to
22 rent control under the San Francisco Residential Rent Stabilization and Arbitration Ordinance
23 (“the Rent Ordinance”). Subsequently, Mr. King called Mr. Jones and left him a voicemail
24 message refusing the proposed illegal rent increase and stating that the Premises were rent-
25 controlled. (Id. at ¶ 23.)
26 In June 2015, Mr. Jones text messaged Mr. King and made his third demand for $4,000.00
27 per month in rent. Again, Mr. King refused the proposed illegal rent increase and repeated that the
28 Premises were rent-controlled. Mr. Jones responded by telling Mr. King “OK, I guess I’ll just

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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
1 have to move in.” (Id. at ¶ 24.)
2 C. Plaintiffs Receipt Of December 1, 2015 Sixty-Day Notice And Exchange Of
3 Correspondence Between Counsel.
4 Denise Leadbetter, Esq, Defendant’s then-attorney, issued Plaintiffs a Sixty-Day Notice to
5 Terminate Tenancy pursuant to San Francisco Administrative Code section 37.9(a)(8), otherwise
6 known as an owner-move-in eviction. Ms. Leadbetter denied that the Premises were subject to
7 rent control. (Complaint, attached as Exhibit A to Pritchard Decl., ¶ 25, Ex. A thereto.)
8 On or about January 15, 2016, Counsel for Plaintiffs sent a letter to Ms. Leadbetter,
9 advising her that the Premises were rent-controlled and that Mr. Jones’ Sixty-Day Notice was
10 invalid and unenforceable due to (1) Mr. Jones’s motive not being among the allowed sixteen just
11 causes set forth under the Rent Ordinance and, (2) Mr. Jones not initiating the purported landlord-
12 move in eviction in good faith or with honest intent. In the letter, Plaintiffs’ counsel notes that,
13 true to Mr. Jones’s word, Mr. Jones sent a Notice of Termination of Tenancy pursuant to an owner
14 move-in eviction. (Letter, attached as Ex. D to the Decl. of Eric L. Toscano (“Toscano”) Decl.)
15 On or about January 29, 2016, Ms. Leadbetter’s office responded, denying the Premises
16 were rent-controlled, reiterating the good-faith motives of her client, and stating, in part:
17 the law clearly indicates that should my client NOT reside in the unit for
a period of at least 36 months, your clients may sue for wrongful
18 eviction. A wrongful eviction claim would entitle your clients to
damages, including damages equivalent to three (3) times actual
19 damages if Mr. Jones is found to have acted in bad faith in the service of
20 the notice or in his failure to reside in the unit. . . . Your clients are
protected if they believe Mr. Jones has a nefarious intent in the service
21 of the notice.

22 (Letter, attached as Exhibit E to the Toscano Decl.)

23 D. Plaintiffs’ December 2017 Discovery Of Defendant’s Use Of Premises As

24 Short-Term Rental.

25 At some point in approximately December 2017 1, Mr. Shekhar knocked on the door of the

26 Premises and a young man with an infant answered the door. The young man appeared to be in

27 his thirties, while the Defendant appears to be in his late fifties. Another friend who resided near

28 1
This date was erroneously listed as January 2017 in Plaintiffs’ original discovery responses. See Plaintiffs’
discovery responses attached to Prichard Declaration.

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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
1 the Premises reported seeing a family, but not Mr. Jones, living at the property. (Connan King’s
2 Supplemental Response to Special Interrogatories, No. 7, attached as Exhibit A to Toscano Decl.;
3 Div Shekhar’s Supplemental Response to Special Interrogatories, No. 7, attached as Exhibit B to
4 Toscano Decl.; Alana Glaser Supplemental Response to Special Interrogatories, No. 7, attached as
5 Exhibit B to Toscano Decl.)
6 On or about January 5, 2018, the postman for the Premises sent a message to Mr. King,
7 advising him that the Premises were now on AirBNB. Mr. King did not actually see the message
8 until May 2018 when he downloaded Facebook messenger to his phone. Plaintiffs were then able
9 to locate the Premises being advertised on a similar short-term rental website, VRBO.com. (Id.)
10 III. ARGUMENT
11 A. Legal Standard
12 Summary judgment is a drastic remedy which should be used with caution. Any doubts as
13 to the propriety of granting a motion for summary judgment should be resolved in favor of the
14 party opposing the motion. A three-part analysis is applied. Kelly v. First Astri Corp., 72
15 Cal.App.4th 462, 470 (1999). First, the Court “identifies the issues framed by the pleadings
16 because the court’s sole function on a motion for summary judgment is to determine from the
17 submitted evidence whether there is a “triable issue as to any material fact.” Id. Second, the
18 Court determines “whether the moving party has met its burden of proof under section 437c . . .
19 of producing admissible evidence showing that a cause of action has no merit because ‘one or
20 more elements of the cause of action, even if not separately pleaded, cannot be established, or ...
21 there is a complete defense to that cause of action.’” Id. Finally, the Court determines whether
22 the opposing party has met its burden “of producing admissible evidence showing that ‘a triable
23 issue of one or more material facts exists as to that cause of action or a defense thereto.’” Id. at
24 470-471.
25 Notably, in determining whether a triable issue of material fact exists, the Court “strictly
26 construe[s] the evidence of the moving parties and liberally construe that of the opponents, and
27 any doubts as to the propriety of granting the motion should be resolved in favor of the parties
28 opposing the motion. Id.

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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
1 B. Plaintiffs’ San Francisco Rent Ordinance Causes Of Action Are Not Time-
2 Barred Because The Delayed Discovery Rule Applies.
3 1. The Delayed Discovery Rule Applies.
4 Defendant argues the Rent Ordinance Causes of Action are subject to a one-year statute of
5 limitation which began accruing when the notice to terminate tenancy was served on Plaintiffs on
6 December 1, 2015. While the Rent Ordinance causes of action are subject to a one-year statute of
7 limitations (S.F. Admin. Code §§ 37.9(f), 37.10B(c)(5); Menefee v. Ostawari, 228 Cal. App. 3d
8 239, 245 (1991)), the Causes of Action do not begin to accrue until Plaintiffs “discover[] or could
9 have discovered through the exercise of reasonable diligence all facts essential to [their] cause of
10 action.” Sylve v. Riley, 15 Cal. App. 4th 23, 26 (1993).
11 The discovery rule is an exception to the general rule that an action accrues when
12 appreciable harm occurs. It postpones the accrual of certain causes of action “until the plaintiff
13 discovers, or has reason to discover, the cause of action.” Fox v. Ethicon Endo-Surgery, Inc. 35
14 Cal. 4th 797, 807 (2005). Plaintiffs are “required to conduct a reasonable investigation after
15 becoming aware of an injury.” Id. at 808. “The cause of action begins to run no later than the
16 time the plaintiff learns, or should have learned, the facts essential to his claim.” Id. at 807.
17 Contrary to Defendant’s assertions, the Court of Appeal has upheld the application of the
18 delayed discovery rule to a cause of action for wrongful eviction pursuant to San Francisco
19 Administrative Code section 37.9. Sylve v. Riley, 15 Cal. App. 4th 23, 26 (1993). 2 In that case,
20 involving an otherwise time-barred wrongful eviction claim, the Court of Appeal held that whether
21 reasonable diligence was exercised for purposes of an alleged violation of San Francisco
22 Administrative Code section 37.9 is generally a question of fact that cannot be decided on
23 summary judgment. Id.
24 In Sylve, the landlords served the tenant with a thirty-day notice to terminate the tenancy,
25
26 2
Relying on a footnote, Defendant attempts to distinguish Sylve by claiming the case related to fraudulent
concealment rather than the delayed discovery rule. However, in that same footnote, the Court stated, “Whatever the
27 label, Sylve’s theory is that her cause of action did not accrue until the failure of the Rileys’ son and daughter-in-law
to occupy the premises revealed that she had been wrongfully evicted based on a false statement of reasons in the 30-
28 day notice.” Sylve v. Riley, 15 Cal. App. 4th 23, 26, footnote 1 (1993).The same issue is presented in this case, and
the delayed discovery rule applies accordingly.

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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
1 claiming a designated relative of the owner was going to occupy the tenant’s rental unit. 15 Cal.
2 App. 4th at 25. Approximately one year after the tenant vacated, she noticed her former apartment
3 appeared to be vacant. Id. Another eight months after that, the apartment still appeared vacant, at
4 which time the tenant concluded that the reason stated in her eviction notice had been false. Id.
5 The tenant did not have actual knowledge of the landlords’ wrongful act because she was
6 not served with a facially invalid eviction notice. Instead, she waited until it became reasonably
7 apparent that the landlords’ designated relative was not going to occupy the unit. The defendants
8 in Sylve argued the tenant’s action was time-barred because she failed to bring the action within
9 one year and was aware that the eviction was improper as early as the first time she noticed that
10 the rental unit appeared vacant. The court ultimately concluded that there was a triable issue of
11 fact as to when the tenant discovered or should have discovered that the eviction was improper and
12 reversed the trial court’s grant of summary judgment. Id. at 28.
13 The same principles are at issue in this case. Defendant’s strained interpretation of Sylve v.
14 Riley, 15 Cal. App. 4th 23 (1993) ignores the essential holding of that case: that the delayed
15 discovery rule most definitely applies to an owner move in eviction under San Francisco
16 Administrative Code section 37.9(a)(8). The Court of Appeal identified the primary conundrum
17 for tenants who are victims of a fraudulent owner move-in eviction: “Absent a visible ‘for rent’
18 sign or evidence someone other than the landlord’s designated relative is in residence, when and
19 how is any tenant evicted under San Francisco Administrative Code section 37.9, subdivision
20 (a)(8) put on inquiry notice that she may have a cause of action for wrongful eviction?” 15 Cal.
21 App. 4th at 27.
22 2. Plaintiffs Filed Their Rent Ordinance Causes Of Action Within The
23 Statutory Period, As The Claims Began Accruing In December 2017.
24 Defendant first argues Plaintiffs’ claims should begin accruing when the notice to
25 terminate tenancy was served on December 1, 2015. This argument fails as it does not consider
26 the applicability of the delayed discovery rule. Sylve v. Riley, 15 Cal. App. 4th 23, 26 (1993).
27 Defendant next argues Plaintiffs’ claims should then begin accruing on January 15, 2016, when
28 Plaintiffs’ counsel sent Defendant’s counsel a letter questioning Defendant’s motives and

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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
1 contending that Defendant did not initiate the purported landlord-move in eviction in good faith or
2 with honest intent. (Letter, attached as Exhibit D to the Toscano Decl.)
3 Conspicuously absent from the evidence cited in Defendant’s moving papers, however, is
4 Defendant’s counsel’s responsive correspondence. (Letter, attached as Exhibit E. To the Toscano
5 Decl.) In this correspondence, defense counsel ensured that Defendant’s movites were good and
6 specifically stated that if it was later uncovered that defednant was “found to have acted in bad
7 faith in the service of the notice or in his failure to reside in the unit,” Mr. King and Mr. Shekhar
8 were “protected if they believe[d] Mr. Jones has a nefarious intent in the service of the notice.” Id.
9 Accordingly, Plaintiffs were not under a duty to investigate or discover additional facts at that
10 time. Sylve v. Riley, 15 Cal. App. 4th 23, 26 (1993).
11 In fact, it was not until December 2017 3 when Mr. Shekhar knocked on the door of the
12 Premises and a young man with an infant answered the door that Plaintiffs had reason to believe
13 the eviction was improper. The young man appeared to be in his thirties, while the Defendant
14 appears to be in his late fifties. Another friend who resided nearby the Premises reported seeing a
15 family, but not Mr. Jones, living at the property. (Connan King’s Supplemental Response to
16 Special Interrogatories, No. 7, attached as Exhibit A to Toscano Decl.; Div Shekhar’s
17 Supplemental Response to Special Interrogatories, No. 7, attached as Exhibit B to Toscano Decl.;
18 Alana Glaser Supplemental Response to Special Interrogatories, No. 7, attached as Exhibit B to
19 Toscano Decl.) This December 2017 discovery put Plaintiffs on notice that the eviction was
20 improper, and Plaintiffs filed their complaint on October 11, 2018—less than a year later.
21 In short, the delayed discovery rule applies. Plaintiffs did not discover, or have reason to
22 discover, that Defendant was not permanently occupying the Premises until December 2017 when
23 a young man with an infant answered the doorbell followed by a Facebook message from a former
24 postal worker in January 2018. Less than a month later, Plaintiffs had retained this firm, and less
25 than a year later, the Complaint in this lawsuit was filed. As the evidence demonstrates, Plaintiffs
26 acted expeditiously and within the applicable one-year statute.
27
28 3
This date was erroneously listed as January 2017 in Plaintiffs’ original discovery responses. See Plaintiffs’
discovery responses attached to Prichard Declaration.

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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
1 C. Only The Rent Ordinance Causes Of Action Carry A One-Year Statute Of
2 Limitations.
3 Defendant argues that the gravamen of Plaintiff’s complaint is wrongful owner move-in
4 eviction such that all causes of action in the complaint carry a one-year statute of limitations. In
5 fact, only the Rent Ordinance Causes of Action are subject to a one-year statute of limitations.
6 The “gravamen” of a complaint is not its caption or form of pleading, but rather the nature of the
7 right sued upon or the principal purpose of the action and is used to determine the applicable
8 statute of limitations. Davies v. Krasna (1975) 14 Cal.3d 502, 515 (1975).
9 Here, in essence, Plaintiffs contend Defendant fraudulently represented that the owner was
10 planning to move into the Premises when in fact that was false. The essence of Plaintiffs’ claim,
11 therefore, is fraud, which carries a three-year statute of limitations applicable to an “action for
12 relief on the ground of fraud or mistake.” Cal. Code Civ. Proc. § 338(d). Any way the issues
13 relating to the statute of limitations are analyzed, Plaintiffs’ claims are timely., and Defendants’
14 Motion should be denied in its entirety.
15 IV. CONCLUSION
16 For the reasons stated herein and in the accompanying Separate Statement of Undisputed
17 and Disputed Material Facts and Table of Evidence, Plaintiffs respectfully request that the Court
18 deny Defendant’s Motion for Summary Judgment.
19
20 DATED: March 27, 2020.
TENANT LAW GROUP, PC
21
22 By
Kristen E. Drake, Esq. (SBN 202827)
23 Attorney for Plaintiffs CONNAN KING, DIV
SHEKHAR and ALANA GLASER
24
25
26
27
28

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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Case Info

Judge

Garrett L. Wong Track Judge’s New Case

Case No.

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Document Filed Date

March 27, 2020

Case Filing Date

October 11, 2018

County

Parties

BURKE, MICHAEL S Attorney for the Defendant
DOES 1 TO 25 INCLUSIVE Defendant
GLASER, ALANA Plaintiff
JONES, GREGORY Defendant
KING, CONNAN Plaintiff
SHEKHAR, DIV Plaintiff
TOSCANO, ERIC L. Attorney for the Plaintiff
Diane Pritchard Attorneys for Defendants
Kristen Drake Attorneys for Plaintiffs
Ryan Herrera Attorneys for Plaintiffs
Katrina Decker Attorneys for Plaintiffs
Negad Zaky Attorneys for Plaintiffs
Palomar Sanchez Attorney
Enrique Dominguez-Cruz Attorney
Denise Leadbetter Attorney
Michael Burgis Attorneys for Defendants
Kristen Eastman Attorney

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Motion-Secondary: CONNAN KING ET AL VS. GREGORY JONES ET AL

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