Motion for Summary Judgment in STEPHEN CAMPBELL ET AL VS. PACIFIC ARMS GOUGH STREET LLC ET AL| Trellis.Law

On October 16, 2018 a Motion,Ex Parte was filed involving a dispute between Campbell, Stephen, Mcintire, Maxwell, Pacific Arms Gough Street Llc, Shih, John, Shih, Tina, Tranter, Robert, Tranter, Sarah, Zerbe, Brennan, Zerbe, Marilyn, and Does 1-100, Does 1 To 50, Does 2-100, Pacific Arms Gough Street Llc, Pacific Arms Llc, Shih, John, Shih, Tina, Sun Property Management, Sun Property Managment, Tranter, Robert, Tranter, Sarah, Zerbe, Brennan, Zerbe, Marilyn, for WRONGFUL EVICTION in the District Court of San Francisco County.

Preview
Mary Catherine Wiederhold (SBN 219429)
Courtney M. Brown (SBN 311113)
Law Offices of Mary Catherine Wiederhold ELECTRONICALLY
1458 Sutter Street
San Francisco, CA 94109 F I L E D
Superior Court of California,
Telephone: (415) 533-0735 County of San Francisco
Facsimile: (415) 843-0496
04/16/2020
Attorneys for Plaintiffs Clerk of the Court
BY: ERNALYN BURA
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
10
UNLIMITED CIVIL JURISDICTION

STEPHEN CAMPBELL, MAXWELL No. CGC-18-570598
12
MCINTIRE,
13
Plaintiffs, PLAINTIFFS'PPOSITION TO
14
DEFENDANTS'OTION FOR
SUMMARY JUDGMENT, OR IN THE
15
ALTERNATIVE, SUMMARY
TINA SHIH, JOHN SHIH, ROBERT AD JUDICATION
16
TRANTER, SARAH TRANTER, MARILYN
ZERBE, BRENNAN ZERBE, PACIFIC
17
ARMS LLC, PACIFIC ARMS GOUGH Date: April 30, 2020
STREET, LLC, SUN PROPERTY Time: 9:30 a.m.
18
MANAGEMENT and DOES 2-100, Dept.: 501

19
Defendants.
20
Trial date: June I, 2020
21

Opposition
TABLE OF CONTENTS
Page

3 I. INTRODUCTION.

4 II. STATEMENT OF FACTS
A. Plaintiffs'5 year tenancy at the subject property
B. Defendants'oncealed their intent to endeavor to recover possession of the
subject property
Defendants'ailed to ensure Plaintiffs'ersonal belongings were taken
care of by ATCO Pest Control and then stored their personal belongings
in a storage unit for over two years without telling them.............
D. Plaintiffs'ecurity deposit was illegally retained by defendants
10
III. LEGAL STANDARD.
11
IV. ARGUMENT .
12
A. Defendants failed to comply with California Rules of Court rule 3.1350.... 7
13
B. The Court should deny the motion because defendants have failed to
14 meet their burden as the moving party .

15 C. The Court should deny the motion because defendants have failed to
fulfill the separate statement requirement under Code of Civil Procedure
16 section 437c
17 D. Plaintiffs'omplaint for wrongful eviction is timely as the
statute of limitations began to run on October 26, 2017.....
18
1. Plaintiffs did not have inquiry notice until served with the three
19 day notice to perform covenant or quit
20 2. The statute of limitations was tolled by
defendants'raudulent
concealment of their intent to endeavor
21 to recover possession of Plaintiffs'ome

22 E. Plaintiffs'laims related to their personal belongings and security
deposit are related to separate wrongdoings by defendants and are
23 timely . 14

24 F. Defendants prevented Plaintiffs from gaining access to their
personal belongings when they put all of the belongings in a
25 storage unit . 15

26 G. Plaintiffs'ecurity deposit cause of action . 17

27
V. CONCLUSION, 17
28
TABLE OF AUTHORITIES
CASES

Aguilar v. Atlantic Richfield Co. {2001)
25 Cal.4th 826

Bernson v. Browning— Ferris Industries (1994)
7 Cal.4th 926 .

Fox v. Ethicon Endo-Surgery, Inc. (2005)
35 Cal.4th 797 . 9,10
8 Grisham v. Philip Morris USA., Inc. {2007)
40 Cal. 4th 623 .

9
Jolly v. Eli Lilly dl Co. (1988)
10 44 Cal.3d 1103 623 . 10

11 Krantz v. BT Visual Images, LLC (2001)
89 Cal.App.4th 164 .
12
Leaf v. Citv of San Mateo (1980)
13 104 Cal.App.3d 398 . 10

14 Menefee v. Ostawari (1991)
288 Cal.App.3d 239 . 14
15
Nazir v. United Airlines, Inc. (2009)
16 178 Cal.App.4th 243 . 7,8
17 Price v. Hovsepian (1952)
114 Cal.App.2d 385 15
18
Reeves v. Safeway Stores, Inc. (2004)
19 121 Cal.App.4th 95 .

20 Saelzler v. Advanced Group 400 {2001)
25 Cal.4th 763 .
21
Saldana v. Globe-IVeis Systems Co. (1991)
22 233 Cal.App.3d 1505

23 Truong v. Glasser (2009)
181 Cal.App.4th 102
24
8'elco Electronics, Inc. v. Mora (2014)
25 223 Cal.App.4th 202 15

26 Zaslow v. Kroenert (1946)
29 Cal.2d 541 . 15
27
28
STATUTES
Civil Code section 789.3 14

Code of Civil Procedure section 437c, sub. (b)(1) .

San Francisco Administrative Code section 37.9 9,14

San Francisco Administrative Code section 37.9(a)(2) 3,13
San Francisco Administrative Code section 37.9(f) 14

San Francisco Administrative Code section 37.10(B) 14

8
RULES OF COURT
9
California Rules of Court 3.1350 .
10

28
I I. INTRODUCTION
Defendants'otion for summary judgment, or in the alternative, summary adjudication
is a prime example of an improper attempt to use the statute of limitations as a sword and a

shield. Throughout this motion, defendants try to lead this Court to believe the statute of
limitations bars Plaintiffs'laim for wrongful eviction. However, defendants fail to bring to the

Court's attention that the apartment was not even completely remodeled until the end of October
2017. They also fail to tell the Court that they continuously told Plaintiffs that it was still being
remodeled and they would tell them when they could move back in.
Defendants'otion also has several fatal flaws. Defendants failed to serve a notice of

10 motion and separate statement that comply with California Rules of Court. Defendants also failed

to meet their burden for a motion for summary judgment or motion for summary adjudication of

12 Plaintiffs* causes of action. As this opposition will show, there are facts that directly dispute what

13 defendants claim in their moving papers. Therefore, Plaintiffs respectfully request that the Court

14 deny this motion in its entirety.

15 II. STATEMENT OF FACTS
16 A. Plaintiffs'5 year tenancy at the subject property
17 In September 1991, Plaintiffs Stephen Campbell and Maxwell Mclntire (" Plaintiffs" )

18 began renting apartment 301 at 1511 Gough Street, San Francisco ("subject property").

19 (Undisputed Material Fact ("UMF") 1.) Around August I, 2016, bedbugs were found in

20 apartment 101 of the subject property. (UMF 2.) On August 7, 2016, defendant Robert Tranter
21 knocked on Plaintiffs'partment door. When Plaintiff Maxwell Mclntire answered the door,
22 defendant Robert Tranter told him bedbugs had been found in the subject property. (Disputed
23 Material Fact ("DMF") 3.) Plaintiff Maxwell Mclntire was then informed via e-mail by the
24 property manager, defendant Marilyn Zerbe, that he and Plaintiff Stephen Campbell would not
25 be able to stay in the apartment "as everything including kitchen cabinets, carpet, baseboards,

26 radiator, etc. need to be removed." As Plaintiff Stephen Campbell was hospitalized at San

27 Francisco General Hospital at the time, defendant Robert Tranter did not inform him about the

bedbugs until August 12, 2016 when defendant Robert Tranter called Stephen Campbell at the

Opposition
1 hospital. (DMF 3; UMF 4.)
On August 15, 2016, defendants Robert and Sarah Tranter posted a 24 hour notice on

Plaintiffs apartment door. The notice was likely posted on the door after 8:00 a.m. on August 15,
2016. This gave Plaintiffs less than 24 hours notice that they would need to vacate since the
notice stated ATCO would be coming to the apartment as early as 8:00 a.m. the next mornin,

August 16. (DMF 6.) The notice also stated "[ATCO] Pest Control will be entering the premises

to control the infestation of bed bugs....In that case, [ATCOj will also use their in determining

items for disposal or fumigation. We encourage your presence tomorrow morning. [g The

apartment will then be uninhabitable for an undetermined length of time, until the unit can be
10 properly treated and the infestation contained that has spread to other units in the building."

ATCO Pest Control treated the subject property until around December 2016.

12 After the bedbug treatment was completed, defendants hired Art Campos of
13 AC&Company to make repairs to apartments 101 and 201. He was also hired to remodel

14 apartment 301. The remodeling of apartment 301 began in or around March 2017.

15 (Supplemental Statement of Undisputed Material Fact ("SSUMF") 5.) The entire bathroom was

16 remodeled with a new bathtub, toilet, and vanity. Since ATCO demolished the entire kitchen,

17 defendants put new cabinets, countertops, and appliances in the kitchen. The walls in the

18 bedrooms and living room had to be repaired because ATCO cut the drywall out three feet up

19 from the floor. New flooring and doors were put in, as well as a new coat of paint. The windows

20 and sliding glass door in the front of apartment 301 were replaced. The remodeling of apartment

21 301 was completed at the end of October 2017. (SSUMF 6.) Defendants were advised they could

22 re-rent apartment 301 to new tenants in October 2018. (SSUMF 23.)

23 B. Defendants concealed their intent to endeavor to recover possession of the
subject property
On September 6, 2016, defendant Robert Tranter sent an e-mail to Plaintiff Maxwell
25
Mclntire requesting his mailing address. (UMF 11.) Plaintiff Maxwell McIntire responded by
26
stating all mail could be sent to the subject property. Plaintiff Maxwell McIntire also asked in
27
his e-mail what the finish date for the apartment was. (SSUMF 1.) Defendant Robert Tranter
28
told Plaintiff Maxwell McIntire that "we do not have a finish date yet." (SSUMF 2.)

Opposition
On October 25, 2016, defendants'revious counsel, William Lynn at Fried 8s Williams,

sent Plaintiffs a letter. The letter stated the bedbug infestation was caused by Plaintiffs "poor

hygiene, hoarding, failed attempts at self-treatment, and the severe delay with notifying the

property manager." The letter further stated defendants'amages caused by the bed bug
infestation was $ 47,000 and would be seeking the damages from Plaintiffs. However, the letter
also stated "[o]nce the full extent of the bed bug damage is known and a course of action to repair

the damages is set, management will be able to advise you as to when you may return." (SSUMF

3.)

On February 2, 2017, Mr. Lynn sent a second letter to Plaintiffs. In his February 2, 2017

10 letter, Mr. Lynn stated defendants'amages exceeded $ 75,000 and failure to pay for the damages
"is a material and substantial breach of [their] lease. Such a breach may constitutejust cause for

12 eviction pursuant to San Francisco Administrative Code ti 37.9(a)(2)." However, as he did in his

13 October 25, 2016 letter, Mr. Lynn stated "[o]nce the Premises is ready for reoccupancy, you will

be provided with a date for your return." (SSUMF 4.)

15 On August 11, 2017, Mr. Lynn sent a third letter to Plaintiffs. In this letter, Mr. Lynn

stated the damages for the bedbug infestation was now $ 151,858. Although this letter did not

17 include a statement about Plaintiffs'eturn, Mr. Lynn again stated "[fjailure to comply with this

18 demand may constitute grounds for the termination of your tenancy pursuant to San Francisco

19 Administrative Code ij 37.9(a)(2)." (Emphasis added.) Mr. Lynn did not state Plaintiffs were not

20 going to be able to return or their tenancy had been terminated. (SSUMF 7.)

21 On September 29, 2017, worried they would not be able to return home, Plaintiff Maxwell

22 Mclntire filed a Report of Alleged Wrongful Eviction with the San Francisco Rent Board. (DMF

39.) On October 16, 2017, defendants filed Response to Receipt of Report of Alleged Wrongful
24 Eviction. Under penalty of perjury, defendant Tins Shih stated she disagreed with the allegation
25 of wrongful eviction. She further stated in the attachment to the response that she "[denied]

seeking possession of the premises in bad faith or with a retaliatory motive." She also stated she

27 "[had] not served a Notice of Termination of Tenancy. In fact, [I] informed tenants of their right

28 to return repeatedly." (SSUMF 9.)

Opposition
Then around October 26, 2017, defendants had Plaintiffs served with a Notice to Perform
Covenant or Quit. In the notice, defendants stated Plaintiffs must pay $ 100,000 within three days

to cure the breach. The notice further stated failure to cure "will cause the Landlord to institute

legal proceedings against you to...recover possession thereof with damages and attorneys'ees."

(SSUMF 9.)

On or around November 10, 2017, defendants had Plaintiffs served with a Three Day
Notice to Quit. The notice stated, in part, "you must vacate the premises and deliver possession

of them to the landlord Pacific Arms gough Street LLC." (SSUMF 10.)

Based on these two legal notices, defendant Pacific Arms Gough Street LLC filed a
10 complaint for unlawful detainer against Plaintiffs on November 22, 2017. (SSUMF 11.)

Defendant Pacific Arms Gough Street LLC dismissed the unlawful detainer action against
12 Plaintiffs without prejudice on September 20, 2018. (SSUMF 12.)

13 C. Defendants failed to ensure Plaintiffs'ersonal belongings were taken care
of by ATCO Pest Control and then stored their personal belongings in a
14 storage unit for over two years without telling them
15 Plaintiffs were instructed that they had to leave all of their personal belongings behind in

16 apartment 301 for treatment. (UMF 43.) In the morning of August 16, 2016, Plaintiffs spoke to

17 ATCO Pest control representatives for approximately 5 minutes. During this time, Plaintiff
18 Maxwell Mclntire only gave ATCO Pest Control consent to discard the television in the bedroom

19 as it was old. Plaintiffs did not give ATCO Pest Control specific authority to dispose of any other
20 personal belongings at that time. (DMF 51.) When Plaintiffs left their home for the last time on
21 August 16, 2016, Plaintiffs were forced to leave behind furniture, paintings, clothing, and many
22 other personal belongings. On the same day Plaintiffs were forced to leave their apartment and
23 most of their personal belongings, defendant Sarah Tranter gave ATCO Pest Control
24 representative, Jordan Garcia, the authority to leave apartment 301 unlocked with all of
25
Plaintiff's'elongings
still inside. She did this despite the availability of a lockbox at the subject property
where a key for the apartment could have been placed. (DMF 56.)
ATCO Pest Control was given authority by defendants to pack up all of
28
Plaintiffs'ersonal
belongings. However, they did not create an inventory of the personal belongings they

Opposition
packed up and relocated for treatment. Defendants also did not ensure ATCO Pest Control
properly packed Plaintiffs'roperty to ensure it was not damaged. (DMF 56.) On August 19,

2016, defendant Sarah Tranter sent Plaintiff Maxwell Mclntire an e-mail seeking consent to
dispose of mattress, box springs, and five dressers from his bedroom. Without waiting for a
response, defendant Sarah Tranter sent ATCO Pest Control representative, Jordan Garcia, a text
message stating there was no need to wait for approval regarding disposal of the mattress, box

spring, and five dressers. (SSUMF 15.) Although Plaintiff Maxwell Mclntire would not have
objected to disposal of the mattress and box spring, he would have objected to the disposal of the

five dressers if he had been given the opportunity to object. (SSUMF 16.) Not only did

10 defendants permit Plaintiffs'ersonal belongings to be disposed of, they also stored
Plaintiffs'elongings
on the fire escape. (DMF 56.)
12 After ATCO Pest Control treated Plaintiffs'ersonal belongings at an off-site location,
13 the belongings were moved to Sheehan Storage in San Francisco. Again, no inventory of
14 Plaintiffs'elongings moved into the storage unit by ATCO Pest Control was created. Nor were
15 ATCO Pest Control representatives overseen by any of the defendants when moving

16
Plaintiffs'elongings
into the storage unit. Plaintiffs'ersonal belongings were left in the storage unit

17 unopened until around November 2018 when defendant Robert Tranter was instructed to go to
18 the storage unit to take an inventory of the number of boxes in the storage unit and take pictures
19 of the storage unit. Plaintiffs were not informed their belongings had been placed in a storage
20 unit in San Francisco until around January 2019. (DMF 57.) Plaintiffs were only given the
21 opportunity to collect their belongings in May 2019, almost three years after they were forced to
22 leave their personal belongings behind in their home.

23 On May 31, 2019, Plaintiffs'ounsels, Mary Catherine Wiederhold and Courtney M.
24 Brown went to the storage unit at Sheehan Storage where Plaintiffs'ersonal belongings had been

25 stored. When Plaintiffs received their belongings back in May 2019, many items Plaintiffs were
26 forced to leave in their apartment at the subject property were missing. In addition, many items

27 returned were damaged as Plaintiffs'ersonal belongings had just been thrown in boxes and bags.
28 Many of the boxes with clothes, linens and pillows had a strong musty odor and some of the

Opposition
boxes even had a urine smell. (DMF 56.)
A box marked "FREE" was also found in the storage unit with Plaintiffs'ersonal
belongings. This box was not in Plaintiffs'partment when they left on August 16, 2016.

(SSUMF 17.) Since the "FREE" box had writing which stated it had "plates, cups, etc." inside,
which are items Plaintiffs found were missing, it is believed these items which belonged to

Plaintiffs were put out for people to take.

D. Plaintiffs'ecurity deposit was illegally retained by defendants
Plaintiffs paid a $ 1,335 security deposit to defendants when they signed the 1991 lease

for the subject property. After defendants endeavored to recover possession of the subject

10 property and did not allow Plaintiffs to return, defendants failed to return Plaintiffs'ecurity
deposit and the interest on the security deposit. Defendants also never provided Plaintiffs with

12 an accounting showing itemized reasons for keeping their security deposit or documents

13 supporting any costs. Defendants are unsure why the security deposit was not returned.
14 Two and a half years after endeavoring to recover the subject property,
15
defendants'ounsel,
Thomas O'rien, offered to settle this cause of action for $ 6,000. On March 17, 2020,

16 Mr. O'rien sent an e-mail to Plaintiffs'ounsels, Mary Catherine Wiederhold and Courtney M.

17 Brown, advising them the settlement offer was withdrawn while defendants determine if any
18 interest on the security deposit had been paid to Plaintiffs during their tenancy. (DMF 64.)

19 III. LEGAL STANDARD
20 In order to shift the burden to the non-moving party to show a triable issue of fact, a

21 moving party must advance evidence sufficient to compel a finding in its favor on that fact.

22 (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th 826, 862) To prevail on the motion, the non-

23 moving party must then advance only enough evidence to allow a trier of fact to find in his or her
24 favor on that issue. (Ibid.) In ruling on a motion for summary adjudication, the Court "must

25 consider all of the evidence and all of the inferences reasonably drawn therefrom, and must view
such evidence and such inferences in the light most favorable to the opposing party." (Id. at 843,

27 internal citations and quotations omitted.) The moving party's evidence is strictly construed,

28 while evidence in favor of the opposing party receives a liberal construction. (Saelzler v.

Opposition
Advanced Group 400 (2001) 25 Cal.4th 763, 768.) Notably, "the separate statement effectively
concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any
of the facts in [thej separate statement, the motion must be denied!" (ltiazir v.United Airlines,

Inc. (2009) 178 Cal.App.4th 243, 252, italics in original.)

5 IV. ARGUMENT
A. Defendants failed to comply with California Rules of Court rule 3.1350
Defendants'otice of motion for summary judgment, or in the alternative, summary

adjudication fails to state the causes of action they seek summary adjudication for. California

Rules of Court rule 3.1350 requires that causes of action to be stated specifically in the notice of

10 motion. (Subd. (b).) The Court may deny summary judgment or adjudication on the basis for
failure to comply with California Rules of Court rule 3.1350. (Truong v. Glasser (2009) 181

12 Cal.App.4th 102.) Defendants merely state in their notice of motion they seek "summary

13 adjudication as to allcauses of action, except for the Third Cause of Action for Trespass to

14 Chattels." This does not specifically state the causes of action they seek summary adjudication
15 for. Defendants also fail to specifically state the causes of action in their separate statement.

16 Moreover, despite stating in their notice of motion that they do not seek summary

17 adjudication for Plaintiffs'hird cause of action for trespass to chattels, in their memorandum of

18 points and authorities, defendants argue there exists no triable issue of material fact supporting
19 Plaintiffs'laims for conversion or trespass to chattels. (Motion 22:6-24:19.) Since defendants

20 failed to comply with California Rules of Court rule 3.1350 by failing to specifically state the

21 causes of action they seek summary adjudication for, defendants'otion should be denied.
22 B. The Court should deny the motion because defendants have failed to meet
their burden as the moving party
23
Defendants have failed to their burden as the moving party so the burden has not shifted
24
to Plaintiffs as the responding party. The moving party must establish facts which defeat the
25
complaint's allegations. After the moving party meets their burden, the burden shifts to the
26
responding party to provide facts which support the allegations in the complaint. A moving party
27
merely stating there is an absence of evidence supporting the complaint's allegations "is not
28

Opposition
enough for a moving pariy to obtain summary judgment in his/her favor." (Krantz v. BT Visual

Images, LLC (2001) 89 Cal.App 4th 164, 173.)

Instead of providing facts which defeat the allegations in Plaintiffs'omplaint, defendants

state in their moving papers that there is an absence of evidence, but does not show that Plaintiffs
would be unable to obtain that evidence through discovery. For example, in support of their

argument for summary adjudication of Plaintiffs'auses of action for conversion and trespass to
chattels, defendants state Plaintiff Maxwell Mclntire is not aware of any facts supporting the

allegation that any defendant destroyed his personal property. Defendants also state Plaintiff

Maxwell Mclntire is not aware of any facts supporting the allegation any defendant detained his

10 personal property. Statements that Plaintiff is not aware of any facts supporting these allegations,
which is based solely on Plaintiffs'epositions taken before defendants'epositions, are

12 insufficient to shift the burden to Plaintiffs. Thus, Plaintiffs respectfully request the Court deny
13 defendants'otion as they failed to meet their burden as the moving party.
14 C. The Court should deny the motion because defendants have failed to fulfill
the separate statement requirement under Code of Civil Procedure section
15 437c
16 A motion for summary judgment or adjudication must contain a separate statement
17 "setting forth plainly and concisely all materia! facts that the moving party contends are

18 undisputed." (Code Civ. Proc. tj437c, subd. (b)(1), italics added.) "The failure to comply with

19 this requirement of a separate statement may in the Court's discretion constitute a sufficient
20 ground for denying the motion. [Furthermore,] the separate statement effectively concedes the
21 materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts
22 in [the] separate statement, the motion must be denied!" (Nazir v. United Airlines, Inc., supra,
23 178 Cal.App.4th 243, 252, italics in original.)

Defendants'eparate statement is neither plain nor concise. A "material fact," as that term

25 is used in section 437c, is one that tends to conclusively negate a necessary element of the
26 Plaintiffs'ase, or establishes an element of a complete defense. (Saldana v. Globe- leis Systems
27 Co. (1991) 233 Cal.App.3d 1505, 1515.) Despite the ample case law on this point, defendants
28 proceed nonetheless to submit a separate statement with 66 distinct purported "material" facts for

Opposition
their motion for summary judgment, or in the alternative, summary adjudication. (See, e.g., UMF
numbers 4, 5, 7, 8, 43, 44, 45, 48, 50, and 53.) Their separate statement fails to set forth only
material facts, as that term is defined in case law concerning section 437c, and therefore, fails to
satisfy the requirements of section 437c, subdivision {b){1).

Many of the purported "material" facts are only contextual or evidentiary in nature and
which would not support a judgment in defendants'avor. Defendants'actic, whether a result
of sloppiness or deliberate vexatiousness, places the Court in the role of having to sort out which

evidentiary facts in the separate statements support what could be material facts had defendants

complied with subdivision (b)(1). Defendants'ecision also leaves the Court and Plaintiffs in
10 the position of guessing what, if any, material facts defendants contend their evidentiary facts
support. This does not give the Court or Plaintiffs fair notice of the material, as opposed to
12 evidentiary, facts upon which defendants rely. Plaintiffs respectfully submit that the only way to

13 discourage such a burdensome practice by defendants is to exercise the Court's inherent power
14 to strike the separate statements and deny the motion. (See Reeves v. Safeway Stores, Inc. (2004)
15 121 Cal.App.4th 95, 106 [courts have inherent power to strike non-complying material facts].)

16 Plaintiffs'omplaint for wrongful eviction is timely as the statute of
limitations began to run around October 26, 2017
17
1. Plaintiffs did not have inquiry notice until served with the three day
18 notice to perform covenant or quit
19 To bring a claim for wrongful eviction, Plaintiffs need facts sufficient to allege that
20 defendants intended to endeavor to recover Plaintiffs'partment without one of the enumerated

21 reasons in the San Francisco Rent Ordinance. (S.F. Admin. Code It37.9.) Until Plaintiffs

22 received defendants'hree day notice to perform covenant or quit which was served around
23 October 26, 2017, Plaintiffs did not have and could not have reasonably discovered facts
sufficient to allege defendants intended to endeavor to recover possession of their apartment
without just cause.
26 The discovery rule delays the running of the statute of limitations "until the plaintiff has,

27 or should have, inquiry notice of the cause of action," (Fox v. Ethicon Endo-Surgery, Inc. (2005)
28 35 Cal.4th 797, 807.) "A plaintiff has reason to discover a cause of action when he or she 'has

Opposition
reason at least to suspect a factual basis for its elements.'" (Ibid.) California law recognizes two

very different kinds of "suspicion" for purposes of the discovery rule: suspicion of wrongdoing

that triggers a duty to investigate, and suspicion of facts that triggers a duty to file and the running
of the statute of limitations.
A plaintiff who "suspects that an injury has been wrongfully caused must conduct a

reasonable investigation of all potential causes of that injury." (Id. at 808-809.) This is a
suspicion that triggers a duty to investigate. On the other hand, suspicion triggers the statute of
limitations period if an investigation would have brought to light a factual basis for a cause of
action. The plaintiff is charged only with knowledge of facts that a reasonable investigation

10 would have revealed. The statute of limitations does not begin to run while the plaintiffs
reasonable investigation remains unsuccessful. "It would be contrary to public policy to require

12 plaintiffs to file a lawsuit at a time when the evidence available to them failed to indicate a cause

13 of action." (Id. at 815.)
14 Defendants never address the difference between the suspicion that triggers a plaintiff s

15 duty to investigate and suspicion that triggers the running of the statute of limitations. Instead,

16 defendants conflate the two concepts. Essentially, defendants argue the mere suspicion of
17 wrongdoing or that Plaintiffs would not be able to return home triggers not just their duty to
18 investigate, but also the running of the statute of limitations. This is not the case. Mere suspicion
19 and fear, unsupported by facts or evidence, does not trigger the running of the statute of
20 limitations. Instead, it triggers the duty to perform a reasonable investigation, which is a question
21 of fact for the jury. (I eaf v. City of San Mateo (1980) 104 Cal.App.3d 398, 409.)

22 Defendants state Plaintiffs'nitial suspicions in September and October 2016 and over the
23 following year put them on inquiry notice of their wrongful eviction claim. However, defendants
24 fail to state Plaintiffs attempted to investigate their suspicions. Unlike the plaintiff in Jolly v. Eli
25 I.illy & Co., who did not investigate the medication she believed caused her harm, Plaintiffs did

26 investigate by asking defendants and defendants'ounsel several times when they wou! d be able
27 to return home. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112-1113.) When Plaintiffs
28 requested an update on the treatment and remodel of their home, they were told treatments were

Opposition 10
still ongoing and they would be informed when they could return. Even Mr. Lynn,
defendants'ttorney,
stated in his February 2, 2017 letter that Plaintiffs would be informed when they could
return to their apartment. Defendants made these same representations on October 16, 2017 in
their response to Plaintiffs'eport of alleged wrongful eviction. This shows that
Plaintiffs'nvestigation
was unsuccessful in bringing facts to light to support their claim for wrongful

eviction since they could not show defendants had the intent to endeavor to recover possession

of their home. Thus, the statute of limitations did not start with Plaintiffs'ere suspicions in
September and October 2016.

Moreover, since apartment 301 at the subject property, Plaintiffs'ormer home, was not

10 completely remodeled until the end of October 2017 and defendants represented Plaintiffs would
be able to return when it was finished, there were no facts for Plaintiffs to discover. An

12 investigation would have merely shown that the apartment was still being remodeled by

13 defendants; defendants were stillrepresenting Plaintiffs could return when it was complete.

14 Therefore, even if the jury finds Plaintiffs'nvestigation between August 2016 and October 2017

15 was not reasonable, the jury could find even if Plaintiffs conducted an investigation it would not
16 have revealed necessary facts anyway. This finding would mean Plaintiffs did not have inquiry
17 notice, since Plaintiffs can only be charged with knowledge of facts that an investigation would
18 have revealed.

Thus, Plaintiffs'nquiry notice could not have started when defendants'laim: as early
20 as September or October 2016 and no later than September 29, 2017. Instead, Plaintiffs were
21 only put on notice when they were served with a three day notice to cure the covenant or quit
22 around October 26, 2017. This is the first time Plaintiffs had factual support for their wrongful
23 eviction claim-that defendants had intent to endeavor to recover possession of Plaintiffs'ormer
24 home. Since Plaintiffs filed their complaint for wrongful eviction on October 16, 2018, they filed

25 within the one year statute of limitations and their claim is not time-barred.
26 2. The statute of limitations was tolled by defendants'raudulent
concealment of their intent to endeavor to recover possession of
27 Plaintiffs'ome
28 Alternatively, if the Court finds Plaintiffs had inquiry notice on or before September 29,

Opposition
2017, Plaintiffs'omplaint would be timely under the fraudulent concealment doctrine. "A close

cousin of the discovery rule is the well accepted principle of fraudulent concealment." (Bernson

v. Browning— Ferris Industries (1994) 7 Cal.4th 926, 931.) The purpose behind the fraudulent

concealment doctrine is to estop a "culpable defendant...from profiting by his own wrong to the
extent it hindered an otherwise diligent plaintiff in discovering his cause of action." (Ibid) Under

the fraudulent concealment doctrine, "[a] defendant's &aud in concealing a cause ofaction against
him will toll the statute of limitations, and that tolling will last as long as a plaintifFs reliance on

the misrepresentations is reasonable." (Grisham v. Philip Morris USA., Inc. (2007) 40 Cal. 4th
623, 637.) "Whether reliance was reasonable is a question offact for thejury, and may be

10 decided as a matter of law only if the facts permit reasonable minds to come to just one
conclusion." (Id. at 638, emphasis added.)
12 Defendants'otion for summary judgment on the basis that Plaintiffs'omplaint is time
13 barred relies completely on Plaintiffs stating in their depositions that they were suspicious and
14 feared defendants were not going to allow them to return to their home at the subject property.

15 However, defendants'otion fails to address the fact defendants and their counsel actively
16 concealed their intention to endeavor to recover possession of Plaintiffs'ome by repeatedly
17 telling Plaintiffs they would inform them when they were able to return. For example, in
18 September 2016, Plaintiff Maxwell McIntire inquired as to when he would be

Case Info

Judge

Samuel K. Feng Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

April 16, 2020

Case Filing Date

October 16, 2018

County

Parties

CAMPBELL, STEPHEN Plaintiff
DE LA PENA, GREGORY RAMON Attorneys for Defendants
DE LA PENA, GREGORY RAMON Attorney for the Defendant
DELAPENA, GREGORY RAMON Attorneys for Defendants
DELAPENA, GREGORY RAMON Attorney for the Defendant
DOES 1-100 Defendant
DOES 1 TO 50 Defendant
DOES 2-100 Defendant
FRIED & WILLIAMS, LLP Cross Defendant
LYNN, WILLIAM C. Cross Defendant
MCINTIRE, MAXWELL Plaintiff
PACIFIC ARMS GOUGH STREET LLC Cross Complainant
PACIFIC ARMS GOUGH STREET LLC Defendant
PACIFIC ARMS LLC Defendant
ROES 1-100 Cross Defendant
SHIH, JOHN Cross Complainant
SHIH, JOHN Defendant
SHIH, TINA Cross Complainant
SHIH, TINA Defendant
SUN PROPERTY MANAGEMENT Defendant
SUN PROPERTY MANAGMENT Defendant
TRANTER, ROBERT Cross Complainant
TRANTER, ROBERT Defendant
TRANTER, SARAH Cross Complainant
TRANTER, SARAH Defendant
WIEDERHOLD, MARY CATHERINE Attorney for the Plaintiff
ZERBE, BRENNAN Cross Complainant
ZERBE, BRENNAN Defendant
ZERBE, MARILYN Cross Complainant
ZERBE, MARILYN Defendant
Thomas Owen Attorney
Courtney Brown Attorneys for Plaintiffs
Lorena Matei Attorneys for Defendants
Thomas O'Brien Attorney

For full print and download access, please subscribe at https://www.trellis.law/.

Motion,Ex Parte: STEPHEN CAMPBELL ET AL VS. PACIFIC ARMS GOUGH STREET LLC ET AL

Preview

Related Topics

Case Info

Parties