Preview
1 DENNIS F. MORIARTY (BAR NO. 37612)
ANDREW S. WERNER (BAR NO. 135795)
2 AARON EINHORN (BAR NO. 335057)
CESARI, WERNER AND MORIARTY
3 75 Southgate Avenue
Daly City, CA 94015
4 Telephone: (650) 991-5126
Facsimile: (650) 991-5134
5 dmoriarty@cwmlaw.com
awerner@cwmlaw.com
6 aeinhorn@cwmlaw.com
6427-3-2-6
7 Attorneys for Defendants
CYPRESS POINT RE INVESTORS, LLC, ALLIANCE COMMUNITIES, INC., and
8 GREYSTAR WORLDWIDE, LLC
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF SANTA CRUZ
11
AMBER LYNN FOSHAY, an individual and CASE NO. 20CV02600
12 LINDA FOSHAY, an individual,
SEPARATE STATEMENT OF
13 UNDISPUTED MATERIAL FACTS IN
Plaintiffs, SUPPORT OF DEFENDANTS CYPRESS
14 POINT RE INVESTORS, LLC;
vs. ALLIANCE COMMUNITIES, INC.; AND
15 GREYSTAR WORLDWIDE LLC’S
MOTION FOR SUMMARY JUDGMENT
16 CYPRESS POINT RE INVESTORS LLC, a OR, IN THE ALTERNATIVE, SUMMARY
California Limited Liability Company; ADJUDICATION
17 ALLIANCE COMMUNITIES, INC. a
California Corporation; GREYSTAR Date: 5/26/23
18 WORLDWIDE LLC, a Limited Liability Time: 8:30 a.m.
Company; MCKENZIE JEAN LEBLANC, an Dept.: 10
19 Individual; TYREECE YOUNGER, an
individual; and DOES 1 through 25, inclusive, Complaint Filed: 12/14/20
20
Trial Date: None
21
Defendants.
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Pursuant to Code of Civil Procedure §437c(b)(1), Defendants CYPRESS POINT RE
26
INVESTORS LLC, a California Limited Liability Company (hereinafter “Cypress Point”)
27
ALLIANCE COMMUNITIES, INC. a California Corporation (hereinafter “Alliance”) and
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1
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
1 GREYSTAR WORLDWIDE LLC, a California Corporation (hereinafter “Greystar”) (hereinafter,
2 collectively as “Defendants”) (Defendant) submits this Separate Statement of Undisputed Material
3 Facts together with reference to evidence in support of their Motion for Summary Judgment or, in
4 the Alternative, Summary Adjudication.
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
1 ISSUE NO. 1
2 PLAINTIFFS’ NEGLIGENCE CLAIM FAILS BECAUSE PLAINTIFFS CANNOT
PROVE THAT DEFENDANTS NEGLIGENTLY BREACHED A DUTY OWED TO
3 PLAINTIFFS
4
Moving Party's Undisputed Material Facts and Opposing Party's Response and
5 Supporting Evidence: Supporting Evidence:
6 1. In May of 2020, Plaintiff Amber Foshay
(hereinafter “Amber Foshay”) decided to
7 move to California with Tyreece Younger
and McKenzie Leblanc (hereinafter
8 Tyreece Younger and Mckenzie Leblanc
shall be referred to collectively as "Tenant
9 Defendants")
10
Exhibit B to Defendants’ Index of
11 Evidence: Deposition of Amber Lynn
Foshay, (hereinafter “Amber Foshay
12 Deposition”) at pp. 33:3-6, 36:2-9; 39:17-
20
13
2. In the Spring of 2020, Tenant Defendants
14 and Amber Foshay were all hired to work
at Taco Bell locations in the Santa Cruz,
15 CA area as assistant managers.
16 Amber Foshay Deposition at pp. 35:7-20
17 3. In the spring of 2020, Amber Foshay
resided with her former boyfriend, Lennart
18 Doiron, and Tenant Defendants in a two-
bedroom apartment in Gardner,
19 Massachusetts.
20 Deposition of Amber Lynn Foshay, at pp.
32:25; 33:1-2; 40: 12-14; 40:17-22; 41: 17-
21 22; 42:2-3
22
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4. In 2020, Tenant Defendants received job
24 offers to work at Taco Bell locations in the
Santa Cruz, California area.
25
26 Amber Foshay Deposition at 34:8-10;
34:20-25,35:1-6
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3
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
1 Moving Party's Undisputed Material Facts and Opposing Party's Response and
Supporting Evidence: Supporting Evidence:
2
5. After Tenant Defendants received job
3 offers to work at Taco Bell locations in
California, they requested to a Taco Bell
4 representative that Amber Foshay be
considered for employment at a Taco Bell
5 location in California. Amber Foshay then
went through the application and got hired.
6
7 Amber Foshay Deposition at 34: 8-12;
33:3-6
8
9 6. When Amber Foshay received the Taco
Bell offer, she believed she would work in
10 the Santa Cruz area, the same as Tenant
Defendants.
11
Amber Foshay Deposition at pp. 34: 23-25;
12 35:1-6
13 7. In the Spring of 2020, Tenant Defendants
found a place for Tenant Defendants and
14 Amber Foshay to rent, the residential rental
property located at 109 Felix Street #1,
15 Santa Cruz, CA 95060 (hereinafter
"Subject Premises" or "the Subject
16 Premises).
17 Amber Foshay Deposition at pp. 37: 7-18
18 Exhibit C to Defendants’ Index of
Evidence: Lease Agreement between
19 Cypress Point Re Investors, Alliance
Communities Inc, Tenant Defendants and
20 Plaintiff Amber Foshay (hereinafter
“Lease” or “the Lease”) signed by Tenant
21 Defendants and Plaintiff Amber Foshay for
a lease period beginning May 15, 2020, and
22 ending May 14, 20201.
23
24
8. In May of 2020, Tenant Defendants and
25 Amber Foshay drove to California in two
cars.
26
Amber Foshay Deposition at pp. 37: 25;
27 38:1-8; 38: 15-25; 39:1-3
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4
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
1 Moving Party's Undisputed Material Facts and Opposing Party's Response and
Supporting Evidence: Supporting Evidence:
2
3
4
9. On May 14, 2020, while on the way to
5 California, Amber Foshay and Tenant
Defendants signed the lease agreement
6 (hereinafter "Lease" or "the Lease"), at
approximately the same time.
7
Lease Agreement
8
Amber Foshay Deposition at pp. 42:13-17;
9 43:4-5
10 10. When Amber Foshay signed the Lease, she
knew she was responsible for executing the
11 Lease to live in the Subject Premises.
12 Amber Foshay Deposition at pp. 43: 14-17
13
14
11. Amber Foshay was aware that, when she
15 signed the Lease, she was responsible for
the rent regardless of whether or not her
16 other roommates paid.
17 Amber Foshay Deposition at pp. 79: 2-5
18 12. When Amber Foshay signed the Lease, she
had no qualms about entering the Lease to
19 rent the Subject Premises.
20 Amber Foshay Deposition at pp. 43: 18-25,
44:1-2
21
13. The Lease of the Subject Premises began
22 on May 15, 2020.
23 Lease Agreement
24 14. The Subject Premises was a two-bedroom
one-bath apartment.
25
Amber Foshay Deposition at pp.76: 16-19
26
Lease Agreement
27
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5
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
1 Moving Party's Undisputed Material Facts and Opposing Party's Response and
Supporting Evidence: Supporting Evidence:
2
15. The base rent for the Subject Premises was
3 $2,710.
4 Amber Foshay Deposition at pp.49: 5-8
5 Lease Agreement
6 16. Amber Foshay agreed to pay a third of the
monthly rent for the Subject Premises.
7
Amber Foshay Deposition at pp. 49: 9-11
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9
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17. Additionally, Tenant Defendants and
11 Amber Foshay evenly divided the cost of a
security deposit for the Subject Premises,
12 which was $3,960, with an additional pet
deposit of $400, for a total of $3960.
13
14 Amber Foshay Deposition at pp. 49:14-18
15
Lease Agreement
16
17
18
18. Amber Foshay did not communicate to
19 either Tenant Defendant that she would not
enter the Lease because of an issue about a
20 pet deposit.
21
Amber Foshay Deposition at pp. 47: 8-11
22
19. During Amber Foshay’s tenancy in the
23 Subject Premises, the hot water worked.
24 Amber Foshay Deposition at pp. 76: 20-21
25 20. During Amber Foshay’s tenancy in the
Subject Premises, the electricity worked.
26
Amber Foshay Deposition at pp. 76: 22-23
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
1 Moving Party's Undisputed Material Facts and Opposing Party's Response and
Supporting Evidence: Supporting Evidence:
2
21. During Amber Foshay’s tenancy in the
3 Subject Premises, the windows opened and
closed without issue.
4
Amber Foshay Deposition at pp. 77: 4-6
5
22. During Amber Foshay’s tenancy in the
6 Subject Premises, the only issue Amber
Foshay had regarding the physical
7 condition of the Subject Premises was that
the tap water tasted like sulphur.
8
Amber Foshay Deposition at pp. 77: 7-13
9
10 23. During Amber Foshay’s tenancy in the
Subject Premises, Amber Foshay never
11 complained about the physical condition of
the Subject Premises to Cypress Point.
12
13 Amber Foshay Deposition at pp. 77: 14-16
14
15
16 24. During her tenancy in the Subject
Premises, Amber Foshay did not report
17 harassment to the police.
18
Amber Foshay Deposition at pp.50: 20-25;
19 51: 1-3
20
25. During her tenancy in the Subject
21 Premises. Amber Foshay never called the
police to have them come to the Subject
22 Premises because Tenant Defendant
Tyreece Younger was harassing her.
23
24 Amber Foshay Deposition at pp. 76:12-15
25
26. During her tenancy in the Subject
26 Premises, Amber Foshay never went to the
Santa Cruz Police Department to seek a
27 restraining order against Tenant Defendant
28
7
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
1 Moving Party's Undisputed Material Facts and Opposing Party's Response and
Supporting Evidence: Supporting Evidence:
2
Tyreece Younger.
3
4 Amber Foshay Deposition at pp. 76: 8-11
5
27. During her tenancy in the Subject
6 Premises, Amber Foshay never received a
police report regarding Amber Foshay's
7 complaints about Tenant Defendant
Tyreece Younger.
8
9 Amber Foshay Deposition at pp. 88: 23-25
10
28. Amber Foshay never provided a police
11 report to Cypress Point.
12
Amber Foshay Deposition at pp. 68: 19-21
13
14 29. During her tenancy in the Subject
Premises, Amber Foshay did not provide
15 Cypress Point with an incident report
number.
16
17 Amber Foshay Deposition at 59: 11-14
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30. Amber Foshay never provided Cypress
19 Point with documentation from a qualified
third party based upon information
20 received by that third party while acting in
his or her professional capacity to indicate
21 that Amber Foshay was seeking assistance
for physical or mental injuries or abuse
22 resulting from Tenant Defendant Tyreece
Younger's conduct.
23
24 Amber Foshay Deposition at pp. 85: 4-10
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31. During her tenancy in the Subject
26 Premises, Amber Foshay never provided
Cypress Point with text messages from
27 Tenant Defendant Tyreece Younger
allegedly evidencing sexual harassment of
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
1 Moving Party's Undisputed Material Facts and Opposing Party's Response and
Supporting Evidence: Supporting Evidence:
2
Amber Foshay.
3
4 Amber Foshay Deposition at pp. 71: 12-24
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32. Amber Foshay has no knowledge as to the
6 existence of any specific text messages or
emails or letters from Amber Foshay to
7 Cypress Point specifically complaining
about either Tenant Defendant.
8
9 Amber Foshay Deposition at pp. 91: 12-15
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33. During her tenancy in the Subject
11 Premises, Amber Foshay filled out and
signed a Roommate Change Form dated
12 June 29, 2020, stating that Amber Foshay
would be departing the Subject Premises
13 on June 30, 2020.
14
Exhibit D to Defendants’ Index of
15 Evidence: Roommate Change Form
(hereinafter “Roommate Change Form”)
16 which Plaintiff Amber Foshay completed
during her tenancy in the Subject Premises
17 (between May 15, 2020, and June 30,
2020) which is dated June 29, 2020, and
18 states that Plaintiff Amber Foshay will be
departing the Subject Premises on June 30,
19 2020.
20
21
22 34. On or about June 30, 2020, Amber Foshay
received an email from Cypress Point
23 stating "[w]e just received your signature
on the roommate lease form your
24 roommates still need to sign. Per our
conversation we had the previous day, we
25 will not be releasing you from the lease
until the remaining roommates qualify on
26 their own for rent. In regards to the rent,
that is something you will need to work out
27 with your roommates and the pending new
roommate. I am sorry we cannot offer more
28 assistance, but legally we cannot get
9
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
1 Moving Party's Undisputed Material Facts and Opposing Party's Response and
Supporting Evidence: Supporting Evidence:
2
involved in roommate disputes. I will reach
3 out if you are able to be removed from the
lease, until then you are still legally
4 responsible for rent or any damages to the
apartment."
5
6 Exhibit E to Defendants’ Index of
Evidence: A true and correct copy of an
7 email (provided by Plaintiff Amber Foshay
in response to discovery Bates number
8 FOS000159 -FOS000160) sent from
Cypress Point Leasing Staff to Plaintiff
9 Amber Foshay during Plaintiff’s tenancy in
the Subject Premises statin
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11 35. On or about June 30, 2020, Amber
Foshay’s tenancy in the Subject Premises
12 ended when Amber Foshay and her mother
, Plaintiff LINDA FOSHAY (hereinafter
13 “Linda Foshay”) drove away from Cypress
Point, out of Santa Cruz and California,
14 and returned home to Massachusetts or
around July 7, 2020.
15
16 Amber Foshay Deposition at pp. 104:20-24
17
36. On July 22, 2020, Cypress Point sent
18 Tenant Defendant Tyreece Younger an
email stating "[Amber Foshay] brought us
19 a roomate release form, but it was not
signed by everyone on the lease and needs
20 to be in order to be considered valid. We
have been inquiring to see if that is
21 something you guys are going to sign. If
not please let me know so I can proceed
22 from there, otherwise it would be great to
get the signatures if this is something
23 [Amber Foshay] discussed with you guys."
24
Exhibit F to Defendants’ Index of
25 Evidence: A true and correct copy of a
July 22, 2020 email correspondence
26 between Cypress Point Leasing Staff and
Defendant Tyreece Younger.
27
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
1 Moving Party's Undisputed Material Facts and Opposing Party's Response and
Supporting Evidence: Supporting Evidence:
2
3
4
37. In response, also on July 22, 2020, Tenant
5 Defendant Tyreece Younger stated
"[Amber Foshay] just decided that she
6 wanted to leave and didn't actually get our
consent to walk away from the lease. I'll
7 discuss with [Tenant Defendant McKenzie
LeBlanc] and see if it's something we're
8 looking to sign and I'll be in touch within a
few days."
9
10 Exhibit F to Defendants’ Index of
Evidence: A true and correct copy of a
11 July 22, 2020 email correspondence
between Cypress Point Leasing Staff and
12 Defendant Tyreece Younger.
13
14
15 38. From June 30, 2020 to August 2020,
Amber Foshay did not any discussions
16 with Cypress Point about payment of rent
or what Amber Foshay might have owed in
17 payment of rent.
18
Amber Foshay Deposition at pp. 80: 20-25;
19 81:81:1-11
20
39. The only time Amber Foshay lived in
21 California for any extended period of time
was for approximately forty-five days in
22 the Spring of 2020.
23
Amber Foshay Deposition at pp. 16: 8-12
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
1 ISSUE NO. 2
2 PLAINTIFFS’ NUISANCE CLAIM FAILS BECAUSE CYPRESS POINT DID NOT
INTERFERE WITH PLAINTIFF’S USE AND ENJOYMENT OF THE SUBJECT
3 PREMISES AND CYPRESS POINT WAS NOT LIABLE FOR THE ACTS OF THE
TENANT DEFENDANTS
4
Since Defendants’ arguments in support of this issue are based on the facts and
5
circumstances of Plaintiff’s tenancy of the Subject Premises, Defendant hereby incorporates by
6
reference all of Facts 1 through 39 set forth above in support of Issue No. 1, as if fully set forth
7
herein for Issue No. 2.
8
ISSUE NO. 3
9
PLAINTIFFS’ BREACH OF THE COVENANT OF QUIET ENJOYMENT FAILS
10 BECAUSE CYPRESS POINT DID NOT ACT, OR FAIL TO ACT, IN ANY WAY THAT
INTERFERED WITH PLAINTIFF’S RIGHT TO USE AND ENJOY THE SUBJECT
11 PREMISES.
12 Since Defendants’ arguments in support of this issue are based on the facts and
13 circumstances of Plaintiff’s tenancy of the Subject Premises, Defendant hereby incorporates by
14 reference all of Facts 1 through 39 set forth above in support of Issue No. 1, as if fully set forth
15 herein for Issue No. 3
16 ISSUE NO. 4
17 PLAINTIFFS’ CLAIM THAT CYPRESS POINT VIOLATED CIVIL CODE SECTION
1940.2 FAILS BECAUSE PLAINTIFF HAS NOT, AND CANNOT, PRODUCE EVIDENCE
18 SHOWING THAT CYPRESS POINT USED FORCE, THREATS OF FORCE, OR
MENACING CONDUCT TO INFLUENCE PLAINTIFF TO VACATE THE SUBJECT
19 PREMISES, OR THAT CYPRESS POINT ENTERED THE SUBJECT PREMISES
WITHOUT PROPER NOTICE
20
Since Defendants’ arguments in support of this issue are based on the facts and
21
circumstances of Plaintiff’s tenancy of the Subject Premises, Defendant hereby incorporates by
22
reference all of Facts 1 through 39 set forth above in support of Issue No. 1, as if fully set forth
23
herein for Issue No. 4.
24
ISSUE NO. 5
25
PLAINTIFFS’ RETALIATION CLAIM FAILS BECAUSE PLAINTIFF NEVER
26 NOTIFIED CYPRESS POINT ABOUT ANY DANGEROUS OR DEFECTIVE
CONDITIONS OF THE SUBJECT PREMISES
27
Since Defendants’ arguments in support of this issue are based on the facts and
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12
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
1 circumstances of Plaintiff’s tenancy of the Subject Premises, Defendant hereby incorporates by
2 reference all of Facts 1 through 39 set forth above in support of Issue No. 1, as if fully set forth
3 herein for Issue No. 4.
4
5 ISSUE NO. 6
6 PLAINTIFFS’ INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIMS
FAIL BECAUSE DEFENDANTS ACTED WITHIN THE BOUNDS OF THE LAW AND
7 DECENCY AND PLAINTIFF LINDA FOSHAY CANNOT PRODUCE EVIDENCE THAT
DEFENDANTS ACTED WITH THE INTENTION OF HARMING HER
8
Since part of Defendants’ arguments in support of this issue are based on the facts and
9
circumstances of Plaintiff’s tenancy of the Subject Premises, Defendant hereby incorporates by
10
reference all of Facts 1 through 39 set forth above in support of Issue No. 1, as if fully set forth
11
herein for Issue No. 6.
12
Moving Party's Undisputed Material Facts and Opposing Party's Response and
13 Supporting Evidence: Supporting Evidence:
14 40. Linda Foshay was not a tenant of Cypress
Point.
15
Exhibit G to Defendants’ Index of
16 Evidence: Pages from Deposition
Transcript of Plaintiff Linda Foshay
17 (hereinafter “Linda Foshay Deposition”) at
pp. 54: 11-18
18
Lease Agreement
19
41. There was never a tenancy relationship
20 between Cypress Point and Linda Foshay.
21 Linda Foshay Deposition at 54: 6-10
22
23 42. Linda Foshay was not a signatory to the
Lease.
24
Plaintiff Deposition at pp. 42: 18-24
25
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43. Linda Foshay has never communicated
27 with any representatives from Cypress
Point in writing.
28
13
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
1 Moving Party's Undisputed Material Facts and Opposing Party's Response and
Supporting Evidence: Supporting Evidence:
2
Linda Foshay Deposition at pp. 55: 7-12,
3 68: 2-5
4 44. Linda Foshay has never communicated
with any representatives from Cypress
5 Point in text message form.
6 Linda Foshay Deposition at pp. 55: 13-15
7 45. Linda Foshay has never communicated
with any representatives from Cypress
8 Point in-person.
9 Linda Foshay Deposition at pp. 79:6-10
10 46. Linda Foshay has never communicated
with any representatives from Cypress
11 Point via e-mail.
12 Linda Foshay Deposition at pp. 55: 16-18
13 47. Plaintiff did not ask Linda Foshay with
assistance in reading the Lease.
14
Plaintiff Deposition at pp. 43:11-13
15
16
48. During Amber Foshay’s tenancy in the
17 Subject Premises, representatives from
Cypress Point never directly communicated
18 with Linda Foshay about Amber Foshay’s
tenancy in the Subject Premises.
19
Linda Foshay Deposition at pp. 64: 12-21
20
49. Linda Foshay did not contact the Santa
21 Cruz Police Department on June 28, 2020.
22 Linda Foshay Deposition at pp. 44: 25;
45:1-2
23
24 50. Linda Foshay did not contact the Santa
Cruz Police Department on June 29, 2020.
25
Linda Foshay Deposition at pp. 45: 3-5
26
51. Linda Foshay did not contact the Santa
27 Cruz Police Department on June 30, 2020.
28
14
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
1 Moving Party's Undisputed Material Facts and Opposing Party's Response and
Supporting Evidence: Supporting Evidence:
2
Linda Foshay Deposition at pp. 45:6-8
3
52. Linda Foshay did not participate in
4 communications with Cypress Ppoint
regarding the entry of the Lease.
5
Linda Foshay Deposition at pp. 54: 11-15
6
7
ISSUE NO. 7
8
PLAINTIFF CIVIL CODE SECTION 1950.5 CLAIM FAILS BECAUSE PLAINTIFFS
9 CANNOT DEMONSTRATE THAT DEFENDANTS HAD A LEGAL OBLIGATION TO
FORFEIT AMBER FOSHAY’S SECURITY DEPOSIT
10
Since Defendants’ arguments in support of this issue are based on the facts and
11
circumstances of Plaintiff Amber Foshay’s tenancy of the Subject Premises, Defendant hereby
12
incorporates by reference all of Facts 1 through 39 set forth above in support of Issue No. 1, as if
13
fully set forth herein for Issue No. 7.
14
15
DATED: March 8, 2023 CESARI WERNER & MORIARTY
16
By: ____________________________
17 DENNIS F. MORIARTY/ANDREW S.WERNER/AARON EINHORN
18 Attorneys for Defendants
Cypress Point, Alliance Communities, and Greystar Worldwide.
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
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1 DENNIS F. MORIARTY (BAR NO. 37612) ANDREW S. WERNER (BAR NO. 135795) 2 AARON EINHORN (BAR NO. 335057) CESARI, WERNER AND MORIARTY 3 75 Southgate Avenue Daly City, CA 94015 4 Telephone: (650) 991-5126 Facsimile: (650) 991-5134 5 dmoriarty@cwmlaw.com awerner@cwmlaw.com 6 aeinhorn@cwmlaw.com 6427-3-2-6 7 Attorneys for Defendants CYPRESS POINT RE INVESTORS, LLC, ALLIANCE COMMUNITIES, INC., and 8 GREYSTAR WORLDWIDE, LLC 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SANTA CRUZ 11 AMBER LYNN FOSHAY, an individual and CASE NO. 20CV02600 12 LINDA FOSHAY, an individual, SEPARATE STATEMENT OF 13 UNDISPUTED MATERIAL FACTS IN Plaintiffs, SUPPORT OF DEFENDANTS CYPRESS 14 POINT RE INVESTORS, LLC; vs. ALLIANCE COMMUNITIES, INC.; AND 15 GREYSTAR WORLDWIDE LLC’S MOTION FOR SUMMARY JUDGMENT 16 CYPRESS POINT RE INVESTORS LLC, a OR, IN THE ALTERNATIVE, SUMMARY California Limited Liability Company; ADJUDICATION 17 ALLIANCE COMMUNITIES, INC. a California Corporation; GREYSTAR Date: 5/26/23 18 WORLDWIDE LLC, a Limited Liability Time: 8:30 a.m. Company; MCKENZIE JEAN LEBLANC, an Dept.: 10 19 Individual; TYREECE YOUNGER, an individual; and DOES 1 through 25, inclusive, Complaint Filed: 12/14/20 20 Trial Date: None 21 Defendants. 22 23 24 25 Pursuant to Code of Civil Procedure §437c(b)(1), Defendants CYPRESS POINT RE 26 INVESTORS LLC, a California Limited Liability Company (hereinafter “Cypress Point”) 27 ALLIANCE COMMUNITIES, INC. a California Corporation (hereinafter “Alliance”) and 28 1 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 GREYSTAR WORLDWIDE LLC, a California Corporation (hereinafter “Greystar”) (hereinafter, 2 collectively as “Defendants”) (Defendant) submits this Separate Statement of Undisputed Material 3 Facts together with reference to evidence in support of their Motion for Summary Judgment or, in 4 the Alternative, Summary Adjudication. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 ISSUE NO. 1 2 PLAINTIFFS’ NEGLIGENCE CLAIM FAILS BECAUSE PLAINTIFFS CANNOT PROVE THAT DEFENDANTS NEGLIGENTLY BREACHED A DUTY OWED TO 3 PLAINTIFFS 4 Moving Party's Undisputed Material Facts and Opposing Party's Response and 5 Supporting Evidence: Supporting Evidence: 6 1. In May of 2020, Plaintiff Amber Foshay (hereinafter “Amber Foshay”) decided to 7 move to California with Tyreece Younger and McKenzie Leblanc (hereinafter 8 Tyreece Younger and Mckenzie Leblanc shall be referred to collectively as "Tenant 9 Defendants") 10 Exhibit B to Defendants’ Index of 11 Evidence: Deposition of Amber Lynn Foshay, (hereinafter “Amber Foshay 12 Deposition”) at pp. 33:3-6, 36:2-9; 39:17- 20 13 2. In the Spring of 2020, Tenant Defendants 14 and Amber Foshay were all hired to work at Taco Bell locations in the Santa Cruz, 15 CA area as assistant managers. 16 Amber Foshay Deposition at pp. 35:7-20 17 3. In the spring of 2020, Amber Foshay resided with her former boyfriend, Lennart 18 Doiron, and Tenant Defendants in a two- bedroom apartment in Gardner, 19 Massachusetts. 20 Deposition of Amber Lynn Foshay, at pp. 32:25; 33:1-2; 40: 12-14; 40:17-22; 41: 17- 21 22; 42:2-3 22 23 4. In 2020, Tenant Defendants received job 24 offers to work at Taco Bell locations in the Santa Cruz, California area. 25 26 Amber Foshay Deposition at 34:8-10; 34:20-25,35:1-6 27 28 3 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Moving Party's Undisputed Material Facts and Opposing Party's Response and Supporting Evidence: Supporting Evidence: 2 5. After Tenant Defendants received job 3 offers to work at Taco Bell locations in California, they requested to a Taco Bell 4 representative that Amber Foshay be considered for employment at a Taco Bell 5 location in California. Amber Foshay then went through the application and got hired. 6 7 Amber Foshay Deposition at 34: 8-12; 33:3-6 8 9 6. When Amber Foshay received the Taco Bell offer, she believed she would work in 10 the Santa Cruz area, the same as Tenant Defendants. 11 Amber Foshay Deposition at pp. 34: 23-25; 12 35:1-6 13 7. In the Spring of 2020, Tenant Defendants found a place for Tenant Defendants and 14 Amber Foshay to rent, the residential rental property located at 109 Felix Street #1, 15 Santa Cruz, CA 95060 (hereinafter "Subject Premises" or "the Subject 16 Premises). 17 Amber Foshay Deposition at pp. 37: 7-18 18 Exhibit C to Defendants’ Index of Evidence: Lease Agreement between 19 Cypress Point Re Investors, Alliance Communities Inc, Tenant Defendants and 20 Plaintiff Amber Foshay (hereinafter “Lease” or “the Lease”) signed by Tenant 21 Defendants and Plaintiff Amber Foshay for a lease period beginning May 15, 2020, and 22 ending May 14, 20201. 23 24 8. In May of 2020, Tenant Defendants and 25 Amber Foshay drove to California in two cars. 26 Amber Foshay Deposition at pp. 37: 25; 27 38:1-8; 38: 15-25; 39:1-3 28 4 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Moving Party's Undisputed Material Facts and Opposing Party's Response and Supporting Evidence: Supporting Evidence: 2 3 4 9. On May 14, 2020, while on the way to 5 California, Amber Foshay and Tenant Defendants signed the lease agreement 6 (hereinafter "Lease" or "the Lease"), at approximately the same time. 7 Lease Agreement 8 Amber Foshay Deposition at pp. 42:13-17; 9 43:4-5 10 10. When Amber Foshay signed the Lease, she knew she was responsible for executing the 11 Lease to live in the Subject Premises. 12 Amber Foshay Deposition at pp. 43: 14-17 13 14 11. Amber Foshay was aware that, when she 15 signed the Lease, she was responsible for the rent regardless of whether or not her 16 other roommates paid. 17 Amber Foshay Deposition at pp. 79: 2-5 18 12. When Amber Foshay signed the Lease, she had no qualms about entering the Lease to 19 rent the Subject Premises. 20 Amber Foshay Deposition at pp. 43: 18-25, 44:1-2 21 13. The Lease of the Subject Premises began 22 on May 15, 2020. 23 Lease Agreement 24 14. The Subject Premises was a two-bedroom one-bath apartment. 25 Amber Foshay Deposition at pp.76: 16-19 26 Lease Agreement 27 28 5 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Moving Party's Undisputed Material Facts and Opposing Party's Response and Supporting Evidence: Supporting Evidence: 2 15. The base rent for the Subject Premises was 3 $2,710. 4 Amber Foshay Deposition at pp.49: 5-8 5 Lease Agreement 6 16. Amber Foshay agreed to pay a third of the monthly rent for the Subject Premises. 7 Amber Foshay Deposition at pp. 49: 9-11 8 9 10 17. Additionally, Tenant Defendants and 11 Amber Foshay evenly divided the cost of a security deposit for the Subject Premises, 12 which was $3,960, with an additional pet deposit of $400, for a total of $3960. 13 14 Amber Foshay Deposition at pp. 49:14-18 15 Lease Agreement 16 17 18 18. Amber Foshay did not communicate to 19 either Tenant Defendant that she would not enter the Lease because of an issue about a 20 pet deposit. 21 Amber Foshay Deposition at pp. 47: 8-11 22 19. During Amber Foshay’s tenancy in the 23 Subject Premises, the hot water worked. 24 Amber Foshay Deposition at pp. 76: 20-21 25 20. During Amber Foshay’s tenancy in the Subject Premises, the electricity worked. 26 Amber Foshay Deposition at pp. 76: 22-23 27 28 6 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Moving Party's Undisputed Material Facts and Opposing Party's Response and Supporting Evidence: Supporting Evidence: 2 21. During Amber Foshay’s tenancy in the 3 Subject Premises, the windows opened and closed without issue. 4 Amber Foshay Deposition at pp. 77: 4-6 5 22. During Amber Foshay’s tenancy in the 6 Subject Premises, the only issue Amber Foshay had regarding the physical 7 condition of the Subject Premises was that the tap water tasted like sulphur. 8 Amber Foshay Deposition at pp. 77: 7-13 9 10 23. During Amber Foshay’s tenancy in the Subject Premises, Amber Foshay never 11 complained about the physical condition of the Subject Premises to Cypress Point. 12 13 Amber Foshay Deposition at pp. 77: 14-16 14 15 16 24. During her tenancy in the Subject Premises, Amber Foshay did not report 17 harassment to the police. 18 Amber Foshay Deposition at pp.50: 20-25; 19 51: 1-3 20 25. During her tenancy in the Subject 21 Premises. Amber Foshay never called the police to have them come to the Subject 22 Premises because Tenant Defendant Tyreece Younger was harassing her. 23 24 Amber Foshay Deposition at pp. 76:12-15 25 26. During her tenancy in the Subject 26 Premises, Amber Foshay never went to the Santa Cruz Police Department to seek a 27 restraining order against Tenant Defendant 28 7 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Moving Party's Undisputed Material Facts and Opposing Party's Response and Supporting Evidence: Supporting Evidence: 2 Tyreece Younger. 3 4 Amber Foshay Deposition at pp. 76: 8-11 5 27. During her tenancy in the Subject 6 Premises, Amber Foshay never received a police report regarding Amber Foshay's 7 complaints about Tenant Defendant Tyreece Younger. 8 9 Amber Foshay Deposition at pp. 88: 23-25 10 28. Amber Foshay never provided a police 11 report to Cypress Point. 12 Amber Foshay Deposition at pp. 68: 19-21 13 14 29. During her tenancy in the Subject Premises, Amber Foshay did not provide 15 Cypress Point with an incident report number. 16 17 Amber Foshay Deposition at 59: 11-14 18 30. Amber Foshay never provided Cypress 19 Point with documentation from a qualified third party based upon information 20 received by that third party while acting in his or her professional capacity to indicate 21 that Amber Foshay was seeking assistance for physical or mental injuries or abuse 22 resulting from Tenant Defendant Tyreece Younger's conduct. 23 24 Amber Foshay Deposition at pp. 85: 4-10 25 31. During her tenancy in the Subject 26 Premises, Amber Foshay never provided Cypress Point with text messages from 27 Tenant Defendant Tyreece Younger allegedly evidencing sexual harassment of 28 8 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Moving Party's Undisputed Material Facts and Opposing Party's Response and Supporting Evidence: Supporting Evidence: 2 Amber Foshay. 3 4 Amber Foshay Deposition at pp. 71: 12-24 5 32. Amber Foshay has no knowledge as to the 6 existence of any specific text messages or emails or letters from Amber Foshay to 7 Cypress Point specifically complaining about either Tenant Defendant. 8 9 Amber Foshay Deposition at pp. 91: 12-15 10 33. During her tenancy in the Subject 11 Premises, Amber Foshay filled out and signed a Roommate Change Form dated 12 June 29, 2020, stating that Amber Foshay would be departing the Subject Premises 13 on June 30, 2020. 14 Exhibit D to Defendants’ Index of 15 Evidence: Roommate Change Form (hereinafter “Roommate Change Form”) 16 which Plaintiff Amber Foshay completed during her tenancy in the Subject Premises 17 (between May 15, 2020, and June 30, 2020) which is dated June 29, 2020, and 18 states that Plaintiff Amber Foshay will be departing the Subject Premises on June 30, 19 2020. 20 21 22 34. On or about June 30, 2020, Amber Foshay received an email from Cypress Point 23 stating "[w]e just received your signature on the roommate lease form your 24 roommates still need to sign. Per our conversation we had the previous day, we 25 will not be releasing you from the lease until the remaining roommates qualify on 26 their own for rent. In regards to the rent, that is something you will need to work out 27 with your roommates and the pending new roommate. I am sorry we cannot offer more 28 assistance, but legally we cannot get 9 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Moving Party's Undisputed Material Facts and Opposing Party's Response and Supporting Evidence: Supporting Evidence: 2 involved in roommate disputes. I will reach 3 out if you are able to be removed from the lease, until then you are still legally 4 responsible for rent or any damages to the apartment." 5 6 Exhibit E to Defendants’ Index of Evidence: A true and correct copy of an 7 email (provided by Plaintiff Amber Foshay in response to discovery Bates number 8 FOS000159 -FOS000160) sent from Cypress Point Leasing Staff to Plaintiff 9 Amber Foshay during Plaintiff’s tenancy in the Subject Premises statin 10 11 35. On or about June 30, 2020, Amber Foshay’s tenancy in the Subject Premises 12 ended when Amber Foshay and her mother , Plaintiff LINDA FOSHAY (hereinafter 13 “Linda Foshay”) drove away from Cypress Point, out of Santa Cruz and California, 14 and returned home to Massachusetts or around July 7, 2020. 15 16 Amber Foshay Deposition at pp. 104:20-24 17 36. On July 22, 2020, Cypress Point sent 18 Tenant Defendant Tyreece Younger an email stating "[Amber Foshay] brought us 19 a roomate release form, but it was not signed by everyone on the lease and needs 20 to be in order to be considered valid. We have been inquiring to see if that is 21 something you guys are going to sign. If not please let me know so I can proceed 22 from there, otherwise it would be great to get the signatures if this is something 23 [Amber Foshay] discussed with you guys." 24 Exhibit F to Defendants’ Index of 25 Evidence: A true and correct copy of a July 22, 2020 email correspondence 26 between Cypress Point Leasing Staff and Defendant Tyreece Younger. 27 28 10 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Moving Party's Undisputed Material Facts and Opposing Party's Response and Supporting Evidence: Supporting Evidence: 2 3 4 37. In response, also on July 22, 2020, Tenant 5 Defendant Tyreece Younger stated "[Amber Foshay] just decided that she 6 wanted to leave and didn't actually get our consent to walk away from the lease. I'll 7 discuss with [Tenant Defendant McKenzie LeBlanc] and see if it's something we're 8 looking to sign and I'll be in touch within a few days." 9 10 Exhibit F to Defendants’ Index of Evidence: A true and correct copy of a 11 July 22, 2020 email correspondence between Cypress Point Leasing Staff and 12 Defendant Tyreece Younger. 13 14 15 38. From June 30, 2020 to August 2020, Amber Foshay did not any discussions 16 with Cypress Point about payment of rent or what Amber Foshay might have owed in 17 payment of rent. 18 Amber Foshay Deposition at pp. 80: 20-25; 19 81:81:1-11 20 39. The only time Amber Foshay lived in 21 California for any extended period of time was for approximately forty-five days in 22 the Spring of 2020. 23 Amber Foshay Deposition at pp. 16: 8-12 24 25 26 27 28 11 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 ISSUE NO. 2 2 PLAINTIFFS’ NUISANCE CLAIM FAILS BECAUSE CYPRESS POINT DID NOT INTERFERE WITH PLAINTIFF’S USE AND ENJOYMENT OF THE SUBJECT 3 PREMISES AND CYPRESS POINT WAS NOT LIABLE FOR THE ACTS OF THE TENANT DEFENDANTS 4 Since Defendants’ arguments in support of this issue are based on the facts and 5 circumstances of Plaintiff’s tenancy of the Subject Premises, Defendant hereby incorporates by 6 reference all of Facts 1 through 39 set forth above in support of Issue No. 1, as if fully set forth 7 herein for Issue No. 2. 8 ISSUE NO. 3 9 PLAINTIFFS’ BREACH OF THE COVENANT OF QUIET ENJOYMENT FAILS 10 BECAUSE CYPRESS POINT DID NOT ACT, OR FAIL TO ACT, IN ANY WAY THAT INTERFERED WITH PLAINTIFF’S RIGHT TO USE AND ENJOY THE SUBJECT 11 PREMISES. 12 Since Defendants’ arguments in support of this issue are based on the facts and 13 circumstances of Plaintiff’s tenancy of the Subject Premises, Defendant hereby incorporates by 14 reference all of Facts 1 through 39 set forth above in support of Issue No. 1, as if fully set forth 15 herein for Issue No. 3 16 ISSUE NO. 4 17 PLAINTIFFS’ CLAIM THAT CYPRESS POINT VIOLATED CIVIL CODE SECTION 1940.2 FAILS BECAUSE PLAINTIFF HAS NOT, AND CANNOT, PRODUCE EVIDENCE 18 SHOWING THAT CYPRESS POINT USED FORCE, THREATS OF FORCE, OR MENACING CONDUCT TO INFLUENCE PLAINTIFF TO VACATE THE SUBJECT 19 PREMISES, OR THAT CYPRESS POINT ENTERED THE SUBJECT PREMISES WITHOUT PROPER NOTICE 20 Since Defendants’ arguments in support of this issue are based on the facts and 21 circumstances of Plaintiff’s tenancy of the Subject Premises, Defendant hereby incorporates by 22 reference all of Facts 1 through 39 set forth above in support of Issue No. 1, as if fully set forth 23 herein for Issue No. 4. 24 ISSUE NO. 5 25 PLAINTIFFS’ RETALIATION CLAIM FAILS BECAUSE PLAINTIFF NEVER 26 NOTIFIED CYPRESS POINT ABOUT ANY DANGEROUS OR DEFECTIVE CONDITIONS OF THE SUBJECT PREMISES 27 Since Defendants’ arguments in support of this issue are based on the facts and 28 12 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 circumstances of Plaintiff’s tenancy of the Subject Premises, Defendant hereby incorporates by 2 reference all of Facts 1 through 39 set forth above in support of Issue No. 1, as if fully set forth 3 herein for Issue No. 4. 4 5 ISSUE NO. 6 6 PLAINTIFFS’ INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIMS FAIL BECAUSE DEFENDANTS ACTED WITHIN THE BOUNDS OF THE LAW AND 7 DECENCY AND PLAINTIFF LINDA FOSHAY CANNOT PRODUCE EVIDENCE THAT DEFENDANTS ACTED WITH THE INTENTION OF HARMING HER 8 Since part of Defendants’ arguments in support of this issue are based on the facts and 9 circumstances of Plaintiff’s tenancy of the Subject Premises, Defendant hereby incorporates by 10 reference all of Facts 1 through 39 set forth above in support of Issue No. 1, as if fully set forth 11 herein for Issue No. 6. 12 Moving Party's Undisputed Material Facts and Opposing Party's Response and 13 Supporting Evidence: Supporting Evidence: 14 40. Linda Foshay was not a tenant of Cypress Point. 15 Exhibit G to Defendants’ Index of 16 Evidence: Pages from Deposition Transcript of Plaintiff Linda Foshay 17 (hereinafter “Linda Foshay Deposition”) at pp. 54: 11-18 18 Lease Agreement 19 41. There was never a tenancy relationship 20 between Cypress Point and Linda Foshay. 21 Linda Foshay Deposition at 54: 6-10 22 23 42. Linda Foshay was not a signatory to the Lease. 24 Plaintiff Deposition at pp. 42: 18-24 25 26 43. Linda Foshay has never communicated 27 with any representatives from Cypress Point in writing. 28 13 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Moving Party's Undisputed Material Facts and Opposing Party's Response and Supporting Evidence: Supporting Evidence: 2 Linda Foshay Deposition at pp. 55: 7-12, 3 68: 2-5 4 44. Linda Foshay has never communicated with any representatives from Cypress 5 Point in text message form. 6 Linda Foshay Deposition at pp. 55: 13-15 7 45. Linda Foshay has never communicated with any representatives from Cypress 8 Point in-person. 9 Linda Foshay Deposition at pp. 79:6-10 10 46. Linda Foshay has never communicated with any representatives from Cypress 11 Point via e-mail. 12 Linda Foshay Deposition at pp. 55: 16-18 13 47. Plaintiff did not ask Linda Foshay with assistance in reading the Lease. 14 Plaintiff Deposition at pp. 43:11-13 15 16 48. During Amber Foshay’s tenancy in the 17 Subject Premises, representatives from Cypress Point never directly communicated 18 with Linda Foshay about Amber Foshay’s tenancy in the Subject Premises. 19 Linda Foshay Deposition at pp. 64: 12-21 20 49. Linda Foshay did not contact the Santa 21 Cruz Police Department on June 28, 2020. 22 Linda Foshay Deposition at pp. 44: 25; 45:1-2 23 24 50. Linda Foshay did not contact the Santa Cruz Police Department on June 29, 2020. 25 Linda Foshay Deposition at pp. 45: 3-5 26 51. Linda Foshay did not contact the Santa 27 Cruz Police Department on June 30, 2020. 28 14 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Moving Party's Undisputed Material Facts and Opposing Party's Response and Supporting Evidence: Supporting Evidence: 2 Linda Foshay Deposition at pp. 45:6-8 3 52. Linda Foshay did not participate in 4 communications with Cypress Ppoint regarding the entry of the Lease. 5 Linda Foshay Deposition at pp. 54: 11-15 6 7 ISSUE NO. 7 8 PLAINTIFF CIVIL CODE SECTION 1950.5 CLAIM FAILS BECAUSE PLAINTIFFS 9 CANNOT DEMONSTRATE THAT DEFENDANTS HAD A LEGAL OBLIGATION TO FORFEIT AMBER FOSHAY’S SECURITY DEPOSIT 10 Since Defendants’ arguments in support of this issue are based on the facts and 11 circumstances of Plaintiff Amber Foshay’s tenancy of the Subject Premises, Defendant hereby 12 incorporates by reference all of Facts 1 through 39 set forth above in support of Issue No. 1, as if 13 fully set forth herein for Issue No. 7. 14 15 DATED: March 8, 2023 CESARI WERNER & MORIARTY 16 By: ____________________________ 17 DENNIS F. MORIARTY/ANDREW S.WERNER/AARON EINHORN 18 Attorneys for Defendants Cypress Point, Alliance Communities, and Greystar Worldwide. 19 20 21 22 23 24 25 26 27 28 15 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT