Preview
wv
co wm NY
KEVIN SULLIVAN, SBN #124523
Law Offices of Kevin M. Sullivan
351 California Street, Suite 300
San Francisco, CA 94104
(415) 434-1184
JONATHAN I. ARONS, SBN #111257
Law Offices of Jonathan I. Arons
100 Bush Street, #918
San Francisco, CA 94104
(415) 957-1818
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
02/26/2019
Clerk of the Court
BY:BOWMAN LIU
Deputy Clerk
Attorneys for The Rita I Harper Trust, by and through its co-trustees Denis Harper and Zsuzsanna
Saper
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
The Rita I. Harper Trust, by and through its co-
trustees Denis Harper and Zsuzsanna Saper,
Plaintiff,
Vv.
Wiegel Law Group, Andrew Wiegel, Ryan
Patrick; Reuben, Junius & Rose; Washington
Street Homeowners Association, an
unincorporated homeowners’ association, and
Does 1 - 100.
Defendants.
Case No. CGC-16-556104
FIRST AMENDED COMPLAINT FOR
DAMAGES FOR
1. LEGAL MALPRACTICE
2. BREACH OF CONTRACT AGAINST
ATTORNEY DEFENDANTS
3. BREACH OF FIDUCIARY
DUTY AGAINST ATTORNEY
DEFENDANTS,
4. BREACH OF FIDUCIARY DUTY
AGAINST WASHINGTON STREET
HOA
5. FRAUD (Misrepresentation) AGAINST
ATTORNEY DEFENDANTS
6. FRAUD (Misrepresentation) AGAINST
WASHINGTON STREET HOA
7. CONVERSION
8. VIOLATION OF DAVIS-STERLING
ACT
1
Plaintiffs First Amended Complaint for Damageswv
co wm NY
The Rita I. Harper Trust, by and through its co-trustees Denis Harper and Zsuzsanna Saper
(“Plaintiff”), hereby alleges as follows:
GENERAL ALLEGATIONS
1. Plaintiff is the Rita I. Harper Trust (“TRUST”), by and through its co-trustees Zsuzsanna
Saper and Denis Harper. The Rita I. Harper Trust is dated September 26, 2007. The TRUST is the
record titleholder of real property located at 2856 Washington Street, Block 979, Lot 48, in the City and
County of San Francisco.
2. Defendants Wiegel Law Group, Andrew Wiegel and Ryan Patrick, (individually and
collectively, “WIEGEL”), are attorneys licensed to practice law in the State of California and have
offices in the County of San Francisco, California.
3. Defendant Reuben, Junius & Rose ("RJ&R") is a law firm licensed to practice law in the
State of California and have offices in the County of San Francisco, California. Non-party Melinda
Sarjapur is and was an attorney, licensed to practice in the State of California. At all times relevant
herein, Melinda Sarjapur worked as an attorney for RJ&R, and all of her actions and omissions
described herein were performed in the course and scope of Ms. Sarjapur’s employment and agency
with RJI&R. RJ&R and WIEGEL are collectively referred to as "ATTORNEY DEFENDANTS".
4, Defendant Washington Street Homeowners Association ("WSHOA") is an
unincorporated homeowner’s association.
5. Daniel P. Mulderry, Gaylen Mulderry, Peter Dubois, Leslie Zimmerman, and Henrietta
Hagopian as Trustee of the Hagopian Family Trust, (along with the TRUST, by and through its co-
trustees Denis Harper and Zsuzsanna Saper) are the individual property owners at WSHOA at 2856 —
2862 Washington Street, San Francisco, CA 95115 (“PROPERTY OWNERS AT WASHINGTON
STREET”).
6. The Divisadero Place Homeowners Association (“DPHA”) is a California non-profit
2
Plaintiffs First Amended Complaint for Damageswv
co wm NY
mutual benefit corporation with its principal place of operation in the City and County of San Francisco.
7. Kate Kardos, Steven Polevoi, Mercedes Miller, Nicole Melet, and Stone Melet are the
individual property owners at DPHA, and are the property owners at 2308A — 2012 Divisadero Street, San
Francisco, CA 95115 (“PROPERTY OWNERS AT DIVISADERO PLACE”).
8. The 2320-2322-2322A Divisadero Street Homeowners Association (“DSHA”) is a
homeowner’s association, made up of the individual property owners at 2320, 2322 and 2322A Divisadero
Street, San Francisco, CA 95115).
9. Eric Widen, Rebecca Widen, David Lang and Gwen Lang are the individual property
owners at DSHA, and are the property owners at 2320 — 2322A Divisadero Street, San Francisco, CA
95115 (PROPERTY OWNERS AT DIVISADERO STREET”).
10. Persons unknown are the individual property owners at 2300 — 2304 Divisadero Street and
2870 — 2878 Washington Street, San Francisco, CA 95115 (“PROPERTY OWNERS AT THE CORNER
LOT”). These properties are situated on the corner of Divisadero Street and Washington Street, and will
herein be referred to collectively as the “CORNER LOT.”
LL. Plaintiff is ignorant of the true names and capacities of the defendants named herein as
Does 1-100. Plaintiff alleges on information and belief that Does 1-50 are the agents or employees of the
various ATTORNEY DEFENDANTS and have acted within the course scope and authority of their
agency or employment in engaging in the acts or omissions to act resulting in a breach of duty, causation
and damages to Plaintiff. Plaintiff alleges that all Does 51-75 have breached an obligation owed to
Plaintiff under the Declaration of Covenants, Conditions, and Restrictions of 2856 — 2862 Washington
Street (“CC&R’s”). Plaintiff alleges that Doe defendants 76-100 are responsible for the maintenance,
repair, or replacement of the DISPUTED WALL (as defined below at paragraph 13), or otherwise owe a
duty of indemnification to Plaintiff. Plaintiff alleges that all Does are the agents, servants, or employees
of the remaining defendants and have acted within the course scope and authority of their agency or
3
Plaintiffs First Amended Complaint for Damageswv
co wm NY
employment in engaging in the acts, or omissions to act complained of herein.
12. Plaintiff is informed and believes and thereon alleges that defendants, and each of them,
were the agents, servants, employees, and representatives of each of the remaining defendants, and in
doing the things alleged, were acting in the course and scope of said agency, employment and/or
representation, or in the alternative, that the defendants ratified and approved the conduct of the other
defendants.
PROPERTY BACKGROUND/HISTORY
13. Plaintiff is informed and believes and thereon allege that on or around the 1890's, the
predecessors of 2308A — 2312 Divisadero Street, 2320 — 2322A Divisadero Street and the CORNER LOT
constructed the retaining wall located between the CORNER LOT, 2308A — 2312A Divisadero Street,
2320 — 2322A Divisadero Street and 2856 — 2862 Washington Street for the sole benefit of the real
properties located at the CORNER LOT and 2308A — 2312 Divisadero Street (herein “DISPUTED
WALL”).
14. The DISPUTED WALL is in reality a system of walls containing three sections: a portion
which separates 2656 — 2862 Washington Street from the CORNER LOT, 2308A — 2313 Divisadero
Street, and, on information and belief 2320 — 2322A Divisadero Street; and two portions perpendicular to
the first portion, one separating 2308A — 2312 Divisadero Street from the CORNER LOT, and the other
separating 2308A — 2312 Divisadero Street from 2320 — 2322A Divisadero Street.
15. As the down slope lot, the PROPERTY OWNERS AT DIVISADERO PLACE,
PROPERTY OWNERS AT DIVISADERO STREET and the PROPERTY OWNERS AT THE CORNER
LOT have the duty to maintain, repair, and/or replace the DISPUTED WALL for lateral support of the
upslope properties located at 2856 — 2862 Washington Street. See Sager v. O’Connell (1944) 67
Cal.App.2d 27.
16. Between approximately 2011 and 2014, the CORNER LOT constructed a garage on its
4
Plaintiffs First Amended Complaint for Damageswv
co wm NY
property. On information and belief, the construction of this garage modified a portion of the DISPUTED
WALL adjacent to the CORNER LOT, damaging the ability of the DISPUTED WALL to provide lateral
support.
17. Peter Dubois and Leslie Zimmerman (“EXCLUSIVE EASEMENT HOLDERS”), members
of Defendant WSHOA, hold an exclusive easement to use the western half of the garden area, which we are
informed and believe would include the DISPUTED WALL, if the DISPUTED WALL is located within the
properties of 2856 — 2862 Washington Street.
18. The WSHOA Declaration of Conditions, Covenants and Restrictions (“CC&R”) is a binding
written contract between the PROPERTY OWNERS AT WASHINGTON STREET. A true and correct
copy of the CC&Rs for 2856-2862 Washington Street is attached hereto as Exhibit “A.”
19. The definition of the common areas under the CC&R’s includes only those areas “to which
title is held by all owners in common.” Exhibit A, see section 1.5.
20. The Individual Grant Deed for real property located at 2856 Washington Street expressly
excludes the garden area from the title conferred by this Grant Deed. A true and correct copy of the
Individual Grant Deed for 2856 Washington Street is attached hereto as Exhibit “B,” see page 2 at “Parcel
co
21. Because the TRUST, as the owner of 2856 Washington Street, has no title in the garden area,
the garden area’s title is not held by all owners in common.
22. Thus, the responsibility to maintain the garden areas is excluded from the WSHOA’s
responsibility to maintain common areas. To any extent the maintenance of the DISPUTED WALL is the
responsibility of any Washington Street property owner, it is the sole responsibility of the EXCLUSIVE
EASEMENT HOLDERS. Exhibit A, see section 1.5.
23. Historically, the WSHOA placed sole financial responsibility for the maintenance and repair
of any property subject to an exclusive use easement on the holder of that exclusive use easement. When
5
Plaintiffs First Amended Complaint for Damageswv
co wm NY
repairs were made to the building’s roof several years ago, such repairs necessitated that repairs be made to
the decks directly adjacent to the roof, which were the exclusive use easements of the second floor units.
Only the owners of the second floor units, including the TRUST, were charged for the repairs to their decks.
24. On or around March 18, 2014, the DPHA reported to the San Francisco Department of
Building Inspection that the DISPUTED WALL located between properties at Divisadero Place/Street and
Washington Street was in disrepair. What follows herein is referred to, occasionally, as the
“UNDERLYING MATTER,” which encompasses the ongoing San Francisco Superior Court cases
numbered CPF-15-514665 and CPF-15-514666, as well as the administrative proceedings in front of the
City and County of San Francisco Department of Building Inspection which preceded said civil cases.
25. Upon information and belief, the PROPERTY OWNERS AT DIVISADERO PLACE
initiated this complaint against the PROPERTY OWNERS AT WASHINGTION STREET and WSHOA
in order to force the PROPERTY OWNERS AT WASHINGTON STREET, including the TRUST, to pay
for cost of maintenance, repair, and/or replacement of the DISPUTED WALL, which was built by
Divisadero Place, Divisadero Street and/or the CORNER LOT.
26. On March 24, 2014, the San Francisco Department of Building Inspection issued a Notice
of Violation against the PROPERTY OWNERS AT WASHINGTON STREET, including the TRUST, for
unsafe building because of the existence of large cracks in the DISPUTED WALL (“FIRST NOTICE OF
VIOLATION”). A true and correct copy of the FIRST NOTICE OF VIOLATION is attached hereto as
Exhibit “C.”
27. The FIRST NOTICE OF VIOLATION ordered the members of WSHOA to obtain an
evaluation from a licensed design professional, file a building permit within 30 days, obtain a permit
within 60 days, and complete all work within 90 days, including the final inspection. The TRUST
objected to the FIRST NOTICE OF VIOLATION because it was not the proper party for issuance of such
violation.
6
Plaintiffs First Amended Complaint for Damageswv
co wm NY
28. On June 4, 2014, the San Francisco Department of Building Inspection issued a SECOND
NOTICE OF VIOLATION against the PROPERTY OWNERS AT WASHINGTON STREET, including
the TRUST, for failure to comply with the FIRST NOTICE OF VIOLATION. The SECOND NOTICE
OF VIOLATION stated that abatement proceedings had been initiated against them (“SECOND
NOTICE OF VIOLATION”). A true and correct copy of the SECOND NOTICE OF VIOLATION is
attached hereto as Exhibit “D”.
29. On August 26, 2014, the San Francisco Department of Building Inspection issued a Notice
of Director’s Hearing to the PROPERTY OWNERS AT WASHINGTON STREET, including the
TRUST, requesting its appearance at the hearing to determine why the violations had not been corrected
and to assess penalties for lack of compliance, including the recording of an Order of Abatement as a lien
against the deeds at 2856-2862 Washington Street. A true and correct copy of the Notice of Director’s
Hearing is attached hereto as Exhibit “E”.
30. | Onor about September 29, 2014, in addition to representing Plaintiff, Defendant RI&R
began to represent the other members of WSHOA in proceedings before the City and County of San
Francisco Department of Building Inspection. Defendant RJ&R did not provide attorney-client fee
agreement required by law in violation Business and Professions Code Sec. 6148.
31. Plaintiff is informed and believes, and thereon alleges that on October 7, 2014, the San
Francisco Department of Building Inspection held a DIRECTOR’S HEARING pursuant to San Francisco
Building Code Section 102A.5, which was conducted by an agent representative of the San Francisco
Department of Building Inspection (“DIRECTOR’S HEARING”). Plaintiff was represented by Mark
Hagopian, an attorney who at all times relevant to the instant Complaint purported to act as President of
WSHOA.
32. Plaintiff is informed and believes, and thereon alleges that the San Francisco Department of
Building Inspection made the following findings at the DIRECTOR’S HEARING: that the hearing was
7
Plaintiffs First Amended Complaint for Damageswv
co wm NY
properly noticed as required by law; that the conditions of the DISPUTED WALL was as stated in the
FIRST AND SECOND NOTICES OF VIOLATION; and that such conditions constituted a public
nuisance under the terms of the San Francisco Building Codes.
33. Plaintiff retained defendant RJ&R to provide them with legal counsel, advice, and.
assistance in an ongoing dispute in a real estate matter involving real property in the City and County of
San Francisco, in proceedings involving the City and County of San Francisco Department of Building
Inspection. Defendant RJ&R agreed to and did provide representation to Plaintiff in those proceedings
and in the regard to various real estate matters. The proceedings were based on the Building
Department's erroneously citing the Trust’s property with Notices of Violation related to the
maintenance of the DISPUTED WALL, and upon the TRUST’S appeals therefrom. Defendant RJ&R’s
representation of Plaintiff in the UNDERLYING MATTER continued to within one year of filing the
instant action, San Francisco Superior Court Case no. CGC-16-556104. Defendant RJ&R did not
disclose potential conflicts of interest, nor did they obtain a written conflict waiver as required by law
for the proceedings. California Rule of Professional Conduct (“CRPC”) Rule 3-310(c).
34, On November 6, 2014, the San Francisco Department of Building Inspection issued an
Order of Abatement (“ORDER OF ABATEMENT”) against the PROPERTY OWNERS AT
WASHINGTON STREET, including the TRUST, requiring that the PROPERTY OWNERS AT
WASHINGTON STREET obtain a final inspection approval on a building permit to repair or replace the
DISPUTED WALL within 30 days. A true and correct copy of the ORDER OF ABATEMENT is
attached as Exhibit “F”.
35. On or before November 21, 2014, the PROPERTY OWNERS AT WASHINGTON
STREET, including the TRUST, appealed the ORDER OF ABATEMENT, requesting modification of
the ORDER OF ABATEMENT to include the PROPERTY OWNERS AT DIVISADERO PLACE, who
jointly share in the use and enjoyment of the DISPUTED WALL (“APPEAL”). The PROPERTY
8
Plaintiffs First Amended Complaint for Damageswv
co wm NY
OWNERS AT WASHINGTON STREET also sought to include the PROPERTY OWNERS AT
DIVISADERO STREET in their appeal because the PROPERTY OWNERS AT DIVISADERO
STRERT had also been issued Orders of Abatement requiring them to repair the DISPUTED WALL.
36. Plaintiff is informed and believes, and thereon alleges that in late 2014, the San Francisco
Department of Building Inspection made the same or similar findings, as described above in Paragraph
33, with regards to the real property located at 2320 — 2322A Divisadero Street, and issued a similar
Order of Abatement, as described above in Paragraph 34, to the PROPERTY OWNERS AT
DIVISADERO STREET. Plaintiff is further informed and believes, and thereon alleges that the
PROPERTY OWNERS AT DIVISADERO STREET appealed the Order of Abatement against them,
similar to as described above in Paragraph 35.
37. Plaintiff paid attorney’s fees to RJ&R of no less than $5,000 by way of a check dated
October 9, 2014, which went into a reserve fund held by WSHOA. Plaintiff paid such money because
WSHOA represented to Plaintiff that these funds were for the payment of attorney’s fees incurred by
RJ&R for the individuals and members of the WSHOA. On information and belief, of the $5,000 that was
originally paid into the reserve fund, $3,375 was attorney's fees paid to RJ&R, with the balance being later
paid to WIEGEL for services provided to Plaintiff. Plaintiff later paid an additional $5,000 into the
WSHOA reserve fund for the fees of ATTORNEY DEFENDANTS, by way of a check dated August 25,
2015. Plaintiff paid such money because WSHOA represented to Plaintiff that these funds were for the
payment of attorney’s fees incurred by ATTORNEY DEFENDANTS for the individuals and members of
the WSHOA. On information and belief, of the $5,000 that was originally paid into the reserve fund, the
entirety of these funds were used to pay WIEGEL. True and correct copies of the checks written to
WSHOA from the TRUST, by and through its co-trustee Denis Harper, redacted to omit the TRUST, and
its co-trustee’s personal information, are attached hereto as Exhibit “P.”
38. Plaintiff understood that the payment to RI&R was for its representation by RJ&R.
9
Plaintiffs First Amended Complaint for Damageswv
co wm NY
Plaintiff's understanding is based on specific documents and statements in proceedings on the record
where RJ&R stated they represented Plaintiff, including but not limited to, at the May 20, 2015 Abatement
Appeals Board Hearing, where Melinda Sarjapur, in the course and scope of her employment and agency
with RJ&R, stated to the Board that she represented “all seven of the property owners at 2320 to 22A
Divisadero Street and 2856 to 62 Washington” rather than the WSHOA. The “seven appellants” included
not only the individual members of the WSHOA, but also the individual PROPERTY OWNERS AT
DIVISADERO STREET. A true and correct copy of the certified Abatement Appeals Board Transcript is
attached hereto as Exhibit “G,” see page 7 at lines 15-19.
39, At the May 20, 2015 Abatement Appeals Board Hearing, Structural Engineer Brett Ferrari
testified that the DISPUTED WALL was "clearly built for the benefit of the Divisadero Street property, to
flatten the lot and to do so, the hillside had to be cut. Additionally, per Mr. Ferrari’s testimony, the
properties on Washington Street were constructed on top of the brick walls, thus the DISPUTED WALL
had to have been in existence before those buildings were constructed. See Exhibit G at page 13, line 23
to page 14, line 6.
40. To any extent that any of the PROPERTY OWNERS AT WASHINGTON STREET have
any duty to repair, maintain and/or replace the DISPUTED WALL, such duty belongs only to EXCLUSIVE
EASEMENT HOLDERS. Because this is an additional defense that Plaintiff could have, and should have,
raised in response to the City and County of San Francisco Department of Building Inspections’ NOTICES
OF VIOLATION and ORDER OF ABATEMENT, RJ&R represented adverse interests by representing
both Plaintiff and the EXCLUSIVE EASEMENT HOLDERS in these proceedings. RJ&R never obtained,
nor did they seek, a waiver of such conflict of interest from Plaintiff. CPRC 3-310(c).
Al. RJ&R negligently failed to ascertain that the CORNER LOT’S modification of the
DISPUTED WALL may have damaged the DISPUTED WALL and caused the condition of the DISPUTED
WALL for which PROPRTY OWNERS AT WASHINGTON STREET were issued Orders of Abatement.
10
Plaintiffs First Amended Complaint for Damageswv
co wm NY
42. On or about October 18, 2015 the TRUST, along with the other PROPERTY OWNERS
AT WASHINGTON STREET engaged WIEGEL to represent their individual interests, and file a lawsuit
against the City and County of San Francisco Department of Building Inspection. WIEGEL did not
provide attorney-client fee agreement required by law in violation Business and Professions Code Sec.
6148. Nor did WIEGEL provide conflicts waivers pursuant to CRPC 3-310(c).
43, Plaintiff's understanding as to both RJ&R and WIEGEL’S representation of individual
interests is also supported by the of the City and County of San Francisco’s Notices related to the
administrative proceedings being directed to each of the individual owners, rather than to the Homeowners
Association alone. True and correct copies of Notices from the City and County of San Francisco are
attached hereto as Exhibit “H”.
44. On January 11, 2016 the TRUST engaged the Law Offices of Triano & Byrne to represent
its interest in the UNDERLYING MATTER involving WSHOA and its other individual members, DPHA
and its individual members, and the City and County of San Francisco’s Department of Building
Inspection. Plaintiff demanded the return of its files from RJ&R, pursuant to CRPC, Rule 3-700.
Notwithstanding Plaintiff's demand for its client files, RJ&R has refused to provide Plaintiff with their
files, in direct violation of CRPC Rule 3-700.
45. Defendant RJ&R now claims it represented only WSHOA. Defendant had never disclosed
to Plaintiff such limitations on their representation in writing or otherwise when Plaintiff retained them. In
the alternative that Defendants RJ&R only represented WSHOA, which the TRUST denies, RI&R’s
representation of the TRUST at the May 20, 2015 Abatement Appeals Board hearing, among other
administrative proceedings, constituted a corrupt or willful appearance without authority. California
Business and Professions Code section 6104.
46. On December 21, 2015, Ryan Patrick of WIEGEL, in a telephone call assured the
TRUST’S representatives that WIEGEL would file an Amended Petition and Writ on behalf of the
I
Plaintiffs First Amended Complaint for Damageswv
co wm NY
TRUST. Previously, WIEGEL had communicated with Plaintiff and promised them that WIEGEL would
represent all members of the WSHOA fairly and equally. On December 18, 2015 WIEGEL had sent
Plaintiff and the other WSHOA members e-mails and pleadings purporting to do so, leading Plaintiff to
believe they were represented by WIEGEL. Plaintiff questioned WIEGEL, which did not respond.
Plaintiff requested Martin F. Triano and Mark Byrne, attorneys at the Law Offices of Triano & Byrne,
assist them in working with WIEGEL. Mr. Triano and Mr. Byrne were present, and participated in the
December 21, 2015 telephone call. Mr. Patrick also represented to Plaintiff's co-trustee Harper, as well as
to Mr. Triano and Mr. Byrne, that he would provide the TRUST with a copy of the Amended Petition and
Verification for Trust signature the next day. Mr. Triano also offered to meet and discuss the questions as
to the common areas and this lawsuit, and hiring a neutral, if necessary. True and correct copies of email
correspondence between Plaintiff, other WSHOA members, and WIEGEL pertaining to the verification of
the Writ of Administrative Mandate, are attached hereto as Exhibit “I.”
47. On December 22, 2015 the TRUST did not receive the Verification and Amended Petition
promised from Mr. Patrick. Only later did WIEGEL state it would not further represent the TRUST, and
would not file the promised Amended Petition on behalf of the TRUST. In doing so, WIEGEL violated
CRPC Rule, Rule 3-700, by terminating the representation without taking reasonable steps to avoid
prejudice to the clients.
48. Plaintiff, by and through The Law Offices of Triano & Byrne, have made repeated requests
for their files in the possession of WIEGEL, as well as alternative dispute resolution on behalf of the
TRUST to the other members of the WSHOA. WIEGEL has failed and refused to surrender Plaintiff's
client file in violation of California Rule of Professional Conduct Rule 3-700.
49. WIEGEL negligently failed to ascertain that the CORNER LOT’S modification of the
DISPUTED WALL may have damaged the DISPUTED WALL and caused the condition of the
DISPUTED WALL for which all PROPERTY OWNERS AT WASHINGTON STREET were issued
12
Plaintiffs First Amended Complaint for Damageswv
co wm NY
Orders of Abatement.
50. To any extent 2856 — 2862 Washington Street has any duty to repair, maintain and/or replace
the DISPUTED WALL, such duty belongs only to the EXCLUSIVE EASEMENT HOLDERS. Because
this is an additional argument that Plaintiff, and WSHOA members other than the EXCLUSIVE
EASEMENT HOLDERS, could have, and should have, raised in support of its Writ of Administrative
Mandate, WIEGEL represented adverse interests by representing both the EXCLUSIVE EASEMENT
HOLDERS and other WSHOA members in these proceedings. WIEGEL never disclosed this potential
conflict of interest, nor did they seek a written waiver of such conflict of interest, as required by law. CRPC
3-310(c).
51. Ms. Sarjapur of RJ&R represented the TRUST in the Department of Building Inspections
administrative proceedings. Currently the TRUST is being prejudiced in the UNDERLYING MATTER
against the City and County of San Francisco Department of Building Inspection by RJ&R’s willful failure
and refusal to surrender Plaintiff's client file in direct violation of CRPC, Rule 3-700. In addition to
Plaintiff, defendants RJ&R, beginning on September 29, 2014, represented the other members of the
WSHOA, as well as DSHA and its members, in the underlying matter, and in proceedings before the City
and County of San Francisco Department of Building Inspection, a violation of CRPC Rule 3-310(c).
52. Notwithstanding Plaintiff's need for their file since the filing of a Petition for Writ of
Administrative Mandate at the San Francisco Superior Court of California, Defendant RJ&R has failed
and refused to surrender Plaintiff's client file, falsely claiming that they were retained solely by the
WSHOA, resulting in Plaintiff's case being prejudiced. RJR additionally claimed that it had ceased to
retain Plaintiff's client file after having transferred the entire file, including Plaintiffs confidential
information to WIEGEL.RJ&R’s claim that it only represented WSHOA, and not WSHOA’s individual
members, including but not limited to Plaintiff, was false. The City and County of San Francisco
addressed its NOTICES OF VIOLATION, notices of hearings, and ORDER OF ABATEMENT to the
13
Plaintiffs First Amended Complaint for Damageswv
co wm NY
TRUST as the owner of record. See Exhibits “C,” “D,” “E” and “F”. The transcript of the May 20, 2015
Abatement Appeals Board hearing reflect that Ms. Sarjapur of RJ&R stated she represented “all seven of
the property owners at 2320 to 22A Divisadero Street and 2856 to 62 Washington,” including the TRUST,
each of whom had a unique case number. See Exhibit “G” at page 7, lines 15-19.
53. Under the California Rules of Professional Conduct, RJ&R was only allowed to turn over
Plaintiff’s client file to an attorney representing the same client, and with the client’s consent. If WIEGEL
did not represent the same clients as RJ&R, namely the individual PROPERTY OWNERS AT
WASHINGTON STREET, then RJ&R committed malpractice by turning over Plaintiff's client file to an
adverse party. If WIEGEL did represent the same clients as RJ&R, then WIEGEL represented Plaintiff.
54. In response to the City and County of San Francisco denying the APPEAL, the individual
PROPERTY OWNERS AT WASHINGTON STREET retained WIEGEL, who filed a Petition for Writ of
Administrative Mandate on December 21, 2015. Notably, WIEGEL included the Plaintiff as a party and
Plaintiff's co-trustees as signatories. A true and correct copy of the Petition for Writ of Administrative
Mandate filed by WIEGEL is attached hereto as Exhibit “J”.
55. Plaintiff, as a member of the WSHOA, were supposed to be included in said group of
petitioners.
56. On December 21, 2015, Plaintiff's agents were present and participated in the telephone
call between Plaintiff's co-trustee Denis Harper, and Ryan Patrick, an attorney employed by WIEGEL.
During that telephone conversation, Mr. Patrick represented to Plaintiff and his agents, that he, Patrick on
behalf of WIEGEL, would send Plaintiff a verification and Amended Petition his review, which Mr.
Patrick would then subsequently file an Amended Petition on behalf of the TRUST.
57. Plaintiff never received a Verification and Amended Petition from Mr. Patrick on
December 22, 2015. They telephoned Mr. Patrick to inquire about the status of the Verification and
Amended Petition. Plaintiff's agent was told that Patrick was out-of-town on vacation, and transferred
14
Plaintiffs First Amended Complaint for Damageswv
co wm NY
him to Andrew Wiegel, instead. Contrary to the express assurance of his representative, Mr. Patrick, Mr.
Wiegel, even though admitting he had not talked to Mr. Patrick, denied the assurances — that they would
file an Amended Petition on behalf of the Trust — were made. WIEGEL abandoned its client the TRUST
and its beneficiaries, and refused to file an Amended Petition on their behalf.
58. Furthermore, Plaintiff through its representatives have made multiple written requests for
alternative dispute resolution on behalf of the TRUST to the other members of the WSHOA between
January 19, 2016 and May 26, 2016. A true and correct copy of said January 19, 2016 correspondence is
attached hereto as Exhibit “K”.
59. On January 22, 2016 Mr. Wiegel responded, but ignored the specific request for a meeting.
A true and correct copy of Mr. Wiegel’s January 22, 2016 e-mail is, attached hereto as Exhibit “L”.
60. On October 10, 2017, the PROPERTY OWNERS AT DIVISADERO PLACE filed and
served a Cross-Complaint for Nuisance against the PROPERTY OWNERS AT WASHINGTON
STREET, including but not limited to the TRUST (“CROSS-COMPLAINT”). On December 13, 2017,
WIEGEL filed an Answer to the CROSS-COMPLAINT, the caption page of which states:
“Attomneys’ for Petitioners/Plaintiffs 2856 WASSHINGTON STREET HOMEOWNERS’
ASSOCIATION, LESLIE ZIMMERMAN, DENIS HARPER, ZSUZSANNA SAPER,
Trustees of the Rita I. Harper Trust[.]”
- December 13, 2017 Answer filed by WIEGEL (“ANSWER”), a true and.
correct copy of which is attached hereto as Exhibit “M,” at page 1, lines 5
through 7 (emphasis added).
61. In the alternative that Defendants WIEGEL only represented WSHOA, which the TRUST
denies, WIEGEL’S representation of the TRUST by filing the ANSWER constituted a corrupt or willful
appearance without authority. California Business and Professions Code section 6104.
62. ATTORNEY DEFENDANTS have engaged on a course or conduct designed to and which
has in effect, damaged Plaintiff's interests, by using information obtained from the WSHOA which
Plaintiff, as a member of the WSHOA, has a right in, under the guise of defendants representing Plaintiff
15
Plaintiffs First Amended Complaint for Damageswv
co wm NY
and engaging in attorney-client communications. The defendants have used the fraudulently obtained
information to frustrate Plaintiff's rights in the UNDERLYING MATTER, thereby causing Plaintiff harm
and damages. Plaintiff did not discover ATTORNEY DEFENDANTS’ breach of duties or suffer damages
until December 22, 2015.
63. Plaintiff is informed and believes, based on emails between the TRUST, by and through its
co-trustee Denis Harper, and Mel Camhi of Better Property Management (“BPM”), that BPM provides
property management services to Defendant WSHOA. Mr. Camhi purports to be the HOA Manager for
Defendant WSHOA in said emails.
64. On or about December 9, 2015, Mel Camhi of BPM, at the direction of Defendant WSHOA,
charged Plaintiff a Special Assessment of $1,250.00. Plaintiff paid this Special Assessment.
65. On or about March 8, 2016, Mel Camhi of BPM, at the direction of Defendant WSHOA,
charged Plaintiff a Special Assessment of $3,000.00.
66. On or about August 22, 2016, Mel Camhi of BPM, at the direction of Defendant WSHOA,
charged Plaintiff a Special Assessment of $500.00.
67. The Declaration of Conditions, Covenants and Restrictions for 2856 — 2862 Washington
Street (“CC&Rs”) requires that Special Assessments be approved by a majority of the WSHOA Board of
Directors. Exhibit A, see section 4.4.
68. Furthermore, the CC&R’s require that any Special Assessment in excess of 5% of Defendant
WSHOA’s budgeted gross expense for the fiscal year be approved approval by a majority vote or written
consent of the members of WSHOA. The March 8, 2016 Special Assessment of $3,000 was in excess of
5% of WSHOA’s 2016 Annual Actual Expenses of $28,233.49; however, Plaintiff, a member of WSHOA,
was never made aware of any such vote or written consent of the members occurring. Exhibit A, see section
4.4; a true and correct copy of the 2856 — 2862 WSHOA Operating Budget Expenses for 2016 is attached
hereto as Exhibit “N,” see p. 2.
16
Plaintiffs First Amended Complaint for Damageswv
co wm NY
69. Plaintiff has requested all documents related to the above described Special Assessments
from Defendant WSHOA. BPM and Defendant WSHOA has refused to disclose any Board of Director
minutes, records of votes or any other documents which evidence that the Board of Directors ever voted on
or otherwise discussed any of the Special Assessments alleged in Paragraphs 64 through 66. A true and
correct copy of Correspondence between Plaintiff and Defendant WSHOA is attached hereto as Exhibit “O.”
70. Because BPM and Defendant WSHOA have refused to disclose the minutes of any Board of
Directors’ meeting, or any other documents evidencing any discussion of the above describe Special
Assessments, Plaintiff is informed and believes that such Special Assessments were charged to Plaintiff
without ever being approved by a majority of the WSHOA Board of Directors.
FIRST CAUSE OF ACTION
(Legal Malpractice as to ATTORNEY DEFENDANTS)
71. Plaintiff hereby incorporates by reference paragraphs | — 70 of this complaint as though
fully set forth herein.
72. Defendants RI&R and WIEGEL each failed to meet the standard of care as follows:
a During the respective periods of legal representation by RJ&R and WIEGEL,
defendants failed to exercise reasonable care, skill, and diligence in performing their legal duties as
attorneys for Plaintiff by acting or omitting to act, including but not limited to as follows:
i. RJ&R failed to obtain conflict of interest waivers between the TRUST and
other WSHOA members, as well as between WSHOA members and DSHA members;
il. RJ&R failed to provide the TRUST with a written retainer agreement;
iii. RJ&R’s past and ongoing refusal to release the TRUST’S client file upon
request;
iv. RJ&R’s wrongful release of said file to WIEGEL, if it is found that
WIEGEL did not represent Plaintiff;
17
Plaintiffs First Amended Complaint for Damageswv
co wm NY
v. RJ&R failing to assert that the CORNER LOT’S negligent modification of
the DISPUTED WALL was the cause of the DISPUTED WALL’S condition;
vi. WIEGEL failed to provide the TRUST with a written waiver agreement;
vii. WIEGEL failed to obtain conflict of interest waivers between the TRUST
and other WSHOA members;
viii. WIEGEL failing to sue the CORNER LOT for negligence in its
modification of the DISPUTED WALL on behalf of Plaintiff and other WSHOA members;
ix. WIEGEL’S past and ongoing refusal to release the TRUST’S client file;
and
x. WIEGEL’S false representation to the TRUST that it would protect the
TRUST’S interests by including the TRUST in the Writ of Administrative Mandamus.
b. Negligently and carelessly failed to conform to the standard of care by committing
acts and omissions by failing to conduct adequate research, discovery, investigation and preparation to
adequately represent Plaintiff in conformity with the applicable standard of care, by including but not
limited to:
i. To date, Plaintiff has paid ATTORNEY DEFENDANTS $10,000.00, but have
not been represented in conformity with the standard of care, the requirements of
the law, or the California Rules of Professional Conduct.
ii. ATTORNEY DEFENDANTS did, and continue to demand payment of their
fees, despite the fact that they abandoned Plaintiff, their own client. Plaintiff
continues to be pressured to continue to pay defendants fees, and late fees, by a
purported “Special Assessment” from the WSHOA.
73. Asa direct and proximate result of the defendants’ errors and omissions as set forth
above, Plaintiff has suffered damages in an amount to be proven at trial and in excess of the minimum
18
Plaintiffs First Amended Complaint for Damageswv
co wm NY
amount required for jurisdiction in this court. Specifically, Plaintiff suffered damages from defendants’
failure to adequacy represent them and withholding their legal files so that they may obtain other
counsel to do so.
WHEREFORE, Plaintiff prays for judgment as set forth below.
SECOND CAUSE OF ACTION
(Breach of Contract as to ATTORNEY DEFENDANTS)
74. Plaintiff hereby incorporates by reference paragraphs | through 73 of this complaint as
though fully set forth herein.
75. Onor about September 29, 2014, defendant RJ&R entered into an oral or implied
contract with Plaintiff to represent and protect Plaintiff's interests in the UNDERLYING MATTER. On
or about August of 2015, defendant WIEGEL entered into an oral or implied contract with Plaintiff to
represent and protect Plaintiff's interests in the UNDERLYING MATTER. Under each of these
contracts, ATTORNEY DEFENDANTS owed Plaintiff the following duties and obligations, among
others:
a to represent Plaintiff and its interests competently;
b. to represent Plaintiff and its interests faithfully and with undivided
loyalty;
c. to pursue and obtain for Plaintiff all legal remedies and benefits to which they
were entitled;
d. to represent Plaintiff in accordance with the Rules of Professional
Conduct of the State Bar and the State Bar Act;
e to advise Plaintiff as to their individual rights and defenses and obtain a written
waiver of conflicts of interests when necessary;
f. to zealously protect attorney/client communications; and
19
Plaintiffs First Amended Complaint for Damageswv
co wm NY
g to decline any representation that would result in a conflict of interest.
76. ATTORNEY DEFENDANTS’ conduct as described in paragraph 72, above, constituted
a material breach of their oral or implied contractual duties to represent and protect Plaintiff's interests
in the underlying matter.
77. Plaintiff alleges, in the alternative, that on or about September 29, 2014, defendant RI&R
entered into a written contract with Plaintiff to represent and protect Plaintiffs interests in the
UNDERLYING MATTER. Plaintiff further alleges in the alternative, that in or about August of 2015,
defendant WIEGEL entered into a written contract with Plaintiff to represent and protect Plaintiff's
interests in the UNDERLYING MATTER. As such, ATTORNEY DEFENDANTS owed Plaintiff the
following duties and obligations, among others:
a. to represent Plaintiff and its interests competently;
b. to represent Plaintiff and its interests faithfully and with undivided
loyalty;
c. to pursue and obtain for Plaintiff all legal remedies and benefits to which they
were entitled;
d. to represent Plaintiff in accordance with the Rules of Professional
Conduct of the State Bar and the State Bar Act;
e. to advise Plaintiff as to their individual rights and defenses and obtain a written
waiver of conflicts of interests when necessary;
f. to zealously protect attorney/client communications; and
g. to decline any representation that would result in a conflict of interest.
78. In the alternative, ATTORNEY DEFENDANTS’ conduct as described in paragraph 72,
above, constituted a material breach of their written contract(s), which was never provided to Plaintiff,
specifically breaching ATTORNEY DEFENDANTS’ duties under such contract(s) to represent and
20
Plaintiffs First Amended Complaint for Damageswv
co wm NY
protect Plaintiffs interests in the underlying matter.
79. Plaintiff performed all conditions precedent under said contract.
80. As a direct and proximate result of the breach by ATTORNEY DEFENDANTS of their
contractual duty to Plaintiff, Plaintiff suffered damages, including incidental and consequential damages,
in an amount to be proven at trial and in excess of the minimum amount required for jurisdiction in this
court.
WHEREFORE, Plaintiff prays for judgment as set forth below.
THIRD CAUSE OF ACTION
(Breach of Fiduciary Duty/Representation of Adverse Interests/
Conflict of Interest without Waiver as to ATTORNEY DEFENDANTS)
81. Plaintiff re-alleges and incorporates herein paragraphs | through 80 of this complaint as
if fully set forth herein.
82. On May 20, 2015 Defendant RJ&R, through Ms. Sarjapur, specifically stated on the
record that RJ&R represented all “seven appellants,” one of which was the TRUST. The Trust had its
own unique case number for this appeal. Plaintiff, through WSHOA, paid defendants RJ&R $3,325.00
for RJ&R’s representation. Later, and to the present date, defendant RJ&R contrarily asserts that it
represented only WSHOA. No conflict of interest waiver was presented or agreed to, and RJ&R and
Ms. Sarjapur refuse to turn over the files in the underlying matter.
83. In approximately October 2015 Defendants WIEGEL began representation of the
PROPERTY OWNERS AT WASHINGTON STREET individually (including Plaintiff) and WSHOA,
an unincorporated entity. Plaintiff, through WSHOA, paid defendants WIEGEL $6,625.00 for legal
representation and defendants WIEGEL confirmed verbally and via email that they represented Plaintiff
in December 2015.
84. At the time ATTORNEY DEFENDANTS began acting as Plaintiff's attorneys and
thereafter, the most confidential relationship existed between them and Plaintiff reposed the greatest
21
Plaintiffs First Amended Complaint for Damageswv
co wm NY
confidence and trust in ATTORNEY DEFENDANTS. ATTORNEY DEFENDANTS were obligated by
the attorney-client relationship to make full disclosure to Plaintiff of all material matters, and to deal
fairly, justly, competently and honestly with Plaintiff in all matters. ATTORNEY DEFENDANTS were
required to keep all communications in the strictest confident, but did not do so. ATTORNEY
DEFENDANTS engaged in a conflict of interest in that they represented both Plaintiff, the
unincorporated WSHOA and the other PROPERTY OWNERS AT WASHINGTON STREET at a time
when the interests of Plaintiff were different than those of unincorporated WSHOA and the other
PROPERTY OWNERS AT WASHINGTON STREET, without advising Plaintiff of the actual or
prospective conflict of interest and or obtaining a waiver of the conflict of interest. Because of the
relationship between the Plaintiff and ATTORNEY DEFENDANTS as clients and attorneys,
ATTORNEY DEFENDANTS stood in a position of a fiduciary to Plaintiff. As such, ATTORNEY
DEFENDANTS owed Plaintiff the following duties and obligations, among others:
a. to represent Plaintiff and its interests competently:
b. to represent Plaintiff and its interests faithfully and with undivided
loyalty;
c. to pursue and obtain for Plaintiff all legal remedies and benefits to which they
were entitled;
d. to represent Plaintiff in accordance with the Rules of Professional
Conduct of the State Bar and the State Bar Act;
e. to advise Plaintiff as to their individual rights and defenses and obtain a written
waiver of conflicts of interests when necessary;
f. to zealously protect attorney/client communications; and
g. to decline any representation that would result in a conflict of interest.
22
Plaintiffs First Amended Complaint for Damageswv
co wm NY
85. ATTORNEY DEFENDANT failed to exercise reasonable care and skill in performance
of professional services for Plaintiff by failing, inter alia, to properly represent Plaintiff, by failing to
properly advise Plaintiff and by engaging in conscious, intentional and malicious advice regarding
including Plaintiff in the Petition for Administrative Writ of Mandamus and other legal efforts, by RI&R
admittedly failing to retain Plaintiff's client file, and by both RJ&R and WIEGEL failing to produce
Plaintiff's client files in violation of California Rule of Professional Conduct 3-700(D).
86. On December 22, 2015 the TRUST did not receive the Verification and Amended Petition
promised from Mr. Patrick. Only later did WIEGEL state it would not further represent the TRUST, and
would not file the promised Amended Petition on behalf of the TRUST. In doing so, WIEGEL violated
CRPC Rule, Rule 3-700, by terminating the representation without taking reasonable steps to avoid
prejudice to the clients. ATTORNEY DEFENDANTS further breached said duties by reason of the
conduct set forth in the First Cause of Action.
87. Inter alia, defendant RJ&R failed to meet its fiduciary duty by engaging in the conduct
complained of herein, including Paragraphs No's: 1, 3-10, 30-31, 33, 37-38, 40-41, 44-45, 51-54 and 62.
88. Inter alia, defendants WIEGEL failed to meet their fiduciary duty by engaging in the
conduct complained of herein, including Paragraphs No's: 1-5, 10, 37, 42-43, 46-50, 54-58 and 60-62.
89. As a direct and proximate result of the breach of fiduciary duty and conflict of
interest by the ATTORNEY DEFENDANTS, Plaintiff has suffered, inter alia, economic damages
including unnecessary attorneys’ fees in an amount beyond the jurisdictional minimum of this court.
90. Plaintiff is entitled to exemplary damages because of the undue influence, oppression and
fraud that occurred when ATTORNEY DEFENDANTS refused:
a. to protect, and consciously disregarded, Plaintiff's legal rights;
b. to provide a defense to Plaintiff; and
c. to produce the client’s files.
23
Plaintiffs First Amended Complaint for Damageswv
co wm NY
91. Moreover, Plaintiff is informed, believes and thereon alleges that ATTORNEY
DEFENDANTS did these things knowing that they owe Plaintiff a fiduciary duty that makes it improper
for ATTORNEY DEFENDANTS to act contrary to or assume a position inconsistent and adverse to the
interest of Plaintiff. Plaintiff is further informed, believes, and thereon alleges that ATTORNEY
DEFENDANTS, in engaging in the actions complained of herein acted intentionally, deliberately, and
with conscious disregard of Plaintiff's rights, by taking an adverse position to Plaintiff, to whom
ATTORNEY DEFENDANTS owed a duty, all to Plaintiff's harm and damage.
WHEREFORE, Plaintiff prays for judgment as set forth below.
FOURTH CAUSE OF ACTION
(Breach of Fiduciary Duty as to WSHOA)
92. Plaintiff re-alleges and incorporates herein paragraphs | through 91 of this complaint as
if fully set forth herein.
93. At the time Plaintiff became a member of the WSHOA, a confidential relationship
existed between Plaintiff and defendant WSHOA, by which Plaintiff reposed the greatest confidence and
trust in defendant WSHOA as its fiduciary. Defendant WSHOA was obligated by their relationship to
make full disclosure to Plaintiff of all material matters, and to deal fairly, justly, and honestly with
Plaintiff in all matters.
94. At all times relevant to this Complaint, Plaintiff was a member of Defendant WSHOA.
During such times, defendant WSHOA has breached this fiduciary duty by charging Plaintiff special
assessment fees, penalties, and filing liens, as described in Paragraphs 37 and 65-67, above. As
described in Paragraphs 68-71, above, Defendant WSHOA has done so without approval of the
WSHOA board, WSHOA members, and without conducting meetings where Plaintiff have notice and
an opportunity to be heard, as required by the WSHOA CC&Rs. Defendants have proceeded to acts as
such, claiming the right to do so despite the lack of any approval of such action by a WSHOA Board of
24
Plaintiffs First Amended Complaint for Damageswv
co wm NY
Directors meeting, any minutes from such meetings or any such meetings taking place.
95. Defendants have not conducted annual meetings of the homeowner’s association or
Board of Directors, or in the alternative have refused Plaintiff's requests for the minutes of such
meetings. WSHOA has not held elections of officers as required by the bylaws, thereby resulting in
there being no elected board, for the property management to inform of events or to receive instruction
from. In the alternative, if such elections have been held, Plaintiff has been excluded from participating
in these and have been denied access to the results of such elections.
96. | WSHOA has further blocked Plaintiff from accessing WSHOA's online site thereby
depriving Plaintiff of information they are entitled to as members of WSHOA.
97. WSHOA has failed to provide proof of authority for special assessment against Plaintiff
and Plaintiff has been denied and deprived of the minutes of the WSHOA meetings, in violation of
defendants’ statutory duty under the (Davis Sterling Act), Civil Code Sections 5200-5210, to provide
said records to Plaintiff upon request.
98. WSHOA has acted by and through its agents so that Plaintiff receives disparate
treatment.:
a. All other WSHOA members were included in the Writ of Administrative Mandate filed
by WIEGEL. As WIEGEL’S purported client, WSHOA had the power to direct
WIEGEL’S decision to leave Plaintiff out of WIEGEL’S Writ of Administrative
Mandate.
b. Plaintiff is informed and believes, and thereon alleged that all other WSHOA membe
Preview
wv co wm NY KEVIN SULLIVAN, SBN #124523 Law Offices of Kevin M. Sullivan 351 California Street, Suite 300 San Francisco, CA 94104 (415) 434-1184 JONATHAN I. ARONS, SBN #111257 Law Offices of Jonathan I. Arons 100 Bush Street, #918 San Francisco, CA 94104 (415) 957-1818 ELECTRONICALLY FILED Superior Court of California, County of San Francisco 02/26/2019 Clerk of the Court BY:BOWMAN LIU Deputy Clerk Attorneys for The Rita I Harper Trust, by and through its co-trustees Denis Harper and Zsuzsanna Saper SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO The Rita I. Harper Trust, by and through its co- trustees Denis Harper and Zsuzsanna Saper, Plaintiff, Vv. Wiegel Law Group, Andrew Wiegel, Ryan Patrick; Reuben, Junius & Rose; Washington Street Homeowners Association, an unincorporated homeowners’ association, and Does 1 - 100. Defendants. Case No. CGC-16-556104 FIRST AMENDED COMPLAINT FOR DAMAGES FOR 1. LEGAL MALPRACTICE 2. BREACH OF CONTRACT AGAINST ATTORNEY DEFENDANTS 3. BREACH OF FIDUCIARY DUTY AGAINST ATTORNEY DEFENDANTS, 4. BREACH OF FIDUCIARY DUTY AGAINST WASHINGTON STREET HOA 5. FRAUD (Misrepresentation) AGAINST ATTORNEY DEFENDANTS 6. FRAUD (Misrepresentation) AGAINST WASHINGTON STREET HOA 7. CONVERSION 8. VIOLATION OF DAVIS-STERLING ACT 1 Plaintiffs First Amended Complaint for Damageswv co wm NY The Rita I. Harper Trust, by and through its co-trustees Denis Harper and Zsuzsanna Saper (“Plaintiff”), hereby alleges as follows: GENERAL ALLEGATIONS 1. Plaintiff is the Rita I. Harper Trust (“TRUST”), by and through its co-trustees Zsuzsanna Saper and Denis Harper. The Rita I. Harper Trust is dated September 26, 2007. The TRUST is the record titleholder of real property located at 2856 Washington Street, Block 979, Lot 48, in the City and County of San Francisco. 2. Defendants Wiegel Law Group, Andrew Wiegel and Ryan Patrick, (individually and collectively, “WIEGEL”), are attorneys licensed to practice law in the State of California and have offices in the County of San Francisco, California. 3. Defendant Reuben, Junius & Rose ("RJ&R") is a law firm licensed to practice law in the State of California and have offices in the County of San Francisco, California. Non-party Melinda Sarjapur is and was an attorney, licensed to practice in the State of California. At all times relevant herein, Melinda Sarjapur worked as an attorney for RJ&R, and all of her actions and omissions described herein were performed in the course and scope of Ms. Sarjapur’s employment and agency with RJI&R. RJ&R and WIEGEL are collectively referred to as "ATTORNEY DEFENDANTS". 4, Defendant Washington Street Homeowners Association ("WSHOA") is an unincorporated homeowner’s association. 5. Daniel P. Mulderry, Gaylen Mulderry, Peter Dubois, Leslie Zimmerman, and Henrietta Hagopian as Trustee of the Hagopian Family Trust, (along with the TRUST, by and through its co- trustees Denis Harper and Zsuzsanna Saper) are the individual property owners at WSHOA at 2856 — 2862 Washington Street, San Francisco, CA 95115 (“PROPERTY OWNERS AT WASHINGTON STREET”). 6. The Divisadero Place Homeowners Association (“DPHA”) is a California non-profit 2 Plaintiffs First Amended Complaint for Damageswv co wm NY mutual benefit corporation with its principal place of operation in the City and County of San Francisco. 7. Kate Kardos, Steven Polevoi, Mercedes Miller, Nicole Melet, and Stone Melet are the individual property owners at DPHA, and are the property owners at 2308A — 2012 Divisadero Street, San Francisco, CA 95115 (“PROPERTY OWNERS AT DIVISADERO PLACE”). 8. The 2320-2322-2322A Divisadero Street Homeowners Association (“DSHA”) is a homeowner’s association, made up of the individual property owners at 2320, 2322 and 2322A Divisadero Street, San Francisco, CA 95115). 9. Eric Widen, Rebecca Widen, David Lang and Gwen Lang are the individual property owners at DSHA, and are the property owners at 2320 — 2322A Divisadero Street, San Francisco, CA 95115 (PROPERTY OWNERS AT DIVISADERO STREET”). 10. Persons unknown are the individual property owners at 2300 — 2304 Divisadero Street and 2870 — 2878 Washington Street, San Francisco, CA 95115 (“PROPERTY OWNERS AT THE CORNER LOT”). These properties are situated on the corner of Divisadero Street and Washington Street, and will herein be referred to collectively as the “CORNER LOT.” LL. Plaintiff is ignorant of the true names and capacities of the defendants named herein as Does 1-100. Plaintiff alleges on information and belief that Does 1-50 are the agents or employees of the various ATTORNEY DEFENDANTS and have acted within the course scope and authority of their agency or employment in engaging in the acts or omissions to act resulting in a breach of duty, causation and damages to Plaintiff. Plaintiff alleges that all Does 51-75 have breached an obligation owed to Plaintiff under the Declaration of Covenants, Conditions, and Restrictions of 2856 — 2862 Washington Street (“CC&R’s”). Plaintiff alleges that Doe defendants 76-100 are responsible for the maintenance, repair, or replacement of the DISPUTED WALL (as defined below at paragraph 13), or otherwise owe a duty of indemnification to Plaintiff. Plaintiff alleges that all Does are the agents, servants, or employees of the remaining defendants and have acted within the course scope and authority of their agency or 3 Plaintiffs First Amended Complaint for Damageswv co wm NY employment in engaging in the acts, or omissions to act complained of herein. 12. Plaintiff is informed and believes and thereon alleges that defendants, and each of them, were the agents, servants, employees, and representatives of each of the remaining defendants, and in doing the things alleged, were acting in the course and scope of said agency, employment and/or representation, or in the alternative, that the defendants ratified and approved the conduct of the other defendants. PROPERTY BACKGROUND/HISTORY 13. Plaintiff is informed and believes and thereon allege that on or around the 1890's, the predecessors of 2308A — 2312 Divisadero Street, 2320 — 2322A Divisadero Street and the CORNER LOT constructed the retaining wall located between the CORNER LOT, 2308A — 2312A Divisadero Street, 2320 — 2322A Divisadero Street and 2856 — 2862 Washington Street for the sole benefit of the real properties located at the CORNER LOT and 2308A — 2312 Divisadero Street (herein “DISPUTED WALL”). 14. The DISPUTED WALL is in reality a system of walls containing three sections: a portion which separates 2656 — 2862 Washington Street from the CORNER LOT, 2308A — 2313 Divisadero Street, and, on information and belief 2320 — 2322A Divisadero Street; and two portions perpendicular to the first portion, one separating 2308A — 2312 Divisadero Street from the CORNER LOT, and the other separating 2308A — 2312 Divisadero Street from 2320 — 2322A Divisadero Street. 15. As the down slope lot, the PROPERTY OWNERS AT DIVISADERO PLACE, PROPERTY OWNERS AT DIVISADERO STREET and the PROPERTY OWNERS AT THE CORNER LOT have the duty to maintain, repair, and/or replace the DISPUTED WALL for lateral support of the upslope properties located at 2856 — 2862 Washington Street. See Sager v. O’Connell (1944) 67 Cal.App.2d 27. 16. Between approximately 2011 and 2014, the CORNER LOT constructed a garage on its 4 Plaintiffs First Amended Complaint for Damageswv co wm NY property. On information and belief, the construction of this garage modified a portion of the DISPUTED WALL adjacent to the CORNER LOT, damaging the ability of the DISPUTED WALL to provide lateral support. 17. Peter Dubois and Leslie Zimmerman (“EXCLUSIVE EASEMENT HOLDERS”), members of Defendant WSHOA, hold an exclusive easement to use the western half of the garden area, which we are informed and believe would include the DISPUTED WALL, if the DISPUTED WALL is located within the properties of 2856 — 2862 Washington Street. 18. The WSHOA Declaration of Conditions, Covenants and Restrictions (“CC&R”) is a binding written contract between the PROPERTY OWNERS AT WASHINGTON STREET. A true and correct copy of the CC&Rs for 2856-2862 Washington Street is attached hereto as Exhibit “A.” 19. The definition of the common areas under the CC&R’s includes only those areas “to which title is held by all owners in common.” Exhibit A, see section 1.5. 20. The Individual Grant Deed for real property located at 2856 Washington Street expressly excludes the garden area from the title conferred by this Grant Deed. A true and correct copy of the Individual Grant Deed for 2856 Washington Street is attached hereto as Exhibit “B,” see page 2 at “Parcel co 21. Because the TRUST, as the owner of 2856 Washington Street, has no title in the garden area, the garden area’s title is not held by all owners in common. 22. Thus, the responsibility to maintain the garden areas is excluded from the WSHOA’s responsibility to maintain common areas. To any extent the maintenance of the DISPUTED WALL is the responsibility of any Washington Street property owner, it is the sole responsibility of the EXCLUSIVE EASEMENT HOLDERS. Exhibit A, see section 1.5. 23. Historically, the WSHOA placed sole financial responsibility for the maintenance and repair of any property subject to an exclusive use easement on the holder of that exclusive use easement. When 5 Plaintiffs First Amended Complaint for Damageswv co wm NY repairs were made to the building’s roof several years ago, such repairs necessitated that repairs be made to the decks directly adjacent to the roof, which were the exclusive use easements of the second floor units. Only the owners of the second floor units, including the TRUST, were charged for the repairs to their decks. 24. On or around March 18, 2014, the DPHA reported to the San Francisco Department of Building Inspection that the DISPUTED WALL located between properties at Divisadero Place/Street and Washington Street was in disrepair. What follows herein is referred to, occasionally, as the “UNDERLYING MATTER,” which encompasses the ongoing San Francisco Superior Court cases numbered CPF-15-514665 and CPF-15-514666, as well as the administrative proceedings in front of the City and County of San Francisco Department of Building Inspection which preceded said civil cases. 25. Upon information and belief, the PROPERTY OWNERS AT DIVISADERO PLACE initiated this complaint against the PROPERTY OWNERS AT WASHINGTION STREET and WSHOA in order to force the PROPERTY OWNERS AT WASHINGTON STREET, including the TRUST, to pay for cost of maintenance, repair, and/or replacement of the DISPUTED WALL, which was built by Divisadero Place, Divisadero Street and/or the CORNER LOT. 26. On March 24, 2014, the San Francisco Department of Building Inspection issued a Notice of Violation against the PROPERTY OWNERS AT WASHINGTON STREET, including the TRUST, for unsafe building because of the existence of large cracks in the DISPUTED WALL (“FIRST NOTICE OF VIOLATION”). A true and correct copy of the FIRST NOTICE OF VIOLATION is attached hereto as Exhibit “C.” 27. The FIRST NOTICE OF VIOLATION ordered the members of WSHOA to obtain an evaluation from a licensed design professional, file a building permit within 30 days, obtain a permit within 60 days, and complete all work within 90 days, including the final inspection. The TRUST objected to the FIRST NOTICE OF VIOLATION because it was not the proper party for issuance of such violation. 6 Plaintiffs First Amended Complaint for Damageswv co wm NY 28. On June 4, 2014, the San Francisco Department of Building Inspection issued a SECOND NOTICE OF VIOLATION against the PROPERTY OWNERS AT WASHINGTON STREET, including the TRUST, for failure to comply with the FIRST NOTICE OF VIOLATION. The SECOND NOTICE OF VIOLATION stated that abatement proceedings had been initiated against them (“SECOND NOTICE OF VIOLATION”). A true and correct copy of the SECOND NOTICE OF VIOLATION is attached hereto as Exhibit “D”. 29. On August 26, 2014, the San Francisco Department of Building Inspection issued a Notice of Director’s Hearing to the PROPERTY OWNERS AT WASHINGTON STREET, including the TRUST, requesting its appearance at the hearing to determine why the violations had not been corrected and to assess penalties for lack of compliance, including the recording of an Order of Abatement as a lien against the deeds at 2856-2862 Washington Street. A true and correct copy of the Notice of Director’s Hearing is attached hereto as Exhibit “E”. 30. | Onor about September 29, 2014, in addition to representing Plaintiff, Defendant RI&R began to represent the other members of WSHOA in proceedings before the City and County of San Francisco Department of Building Inspection. Defendant RJ&R did not provide attorney-client fee agreement required by law in violation Business and Professions Code Sec. 6148. 31. Plaintiff is informed and believes, and thereon alleges that on October 7, 2014, the San Francisco Department of Building Inspection held a DIRECTOR’S HEARING pursuant to San Francisco Building Code Section 102A.5, which was conducted by an agent representative of the San Francisco Department of Building Inspection (“DIRECTOR’S HEARING”). Plaintiff was represented by Mark Hagopian, an attorney who at all times relevant to the instant Complaint purported to act as President of WSHOA. 32. Plaintiff is informed and believes, and thereon alleges that the San Francisco Department of Building Inspection made the following findings at the DIRECTOR’S HEARING: that the hearing was 7 Plaintiffs First Amended Complaint for Damageswv co wm NY properly noticed as required by law; that the conditions of the DISPUTED WALL was as stated in the FIRST AND SECOND NOTICES OF VIOLATION; and that such conditions constituted a public nuisance under the terms of the San Francisco Building Codes. 33. Plaintiff retained defendant RJ&R to provide them with legal counsel, advice, and. assistance in an ongoing dispute in a real estate matter involving real property in the City and County of San Francisco, in proceedings involving the City and County of San Francisco Department of Building Inspection. Defendant RJ&R agreed to and did provide representation to Plaintiff in those proceedings and in the regard to various real estate matters. The proceedings were based on the Building Department's erroneously citing the Trust’s property with Notices of Violation related to the maintenance of the DISPUTED WALL, and upon the TRUST’S appeals therefrom. Defendant RJ&R’s representation of Plaintiff in the UNDERLYING MATTER continued to within one year of filing the instant action, San Francisco Superior Court Case no. CGC-16-556104. Defendant RJ&R did not disclose potential conflicts of interest, nor did they obtain a written conflict waiver as required by law for the proceedings. California Rule of Professional Conduct (“CRPC”) Rule 3-310(c). 34, On November 6, 2014, the San Francisco Department of Building Inspection issued an Order of Abatement (“ORDER OF ABATEMENT”) against the PROPERTY OWNERS AT WASHINGTON STREET, including the TRUST, requiring that the PROPERTY OWNERS AT WASHINGTON STREET obtain a final inspection approval on a building permit to repair or replace the DISPUTED WALL within 30 days. A true and correct copy of the ORDER OF ABATEMENT is attached as Exhibit “F”. 35. On or before November 21, 2014, the PROPERTY OWNERS AT WASHINGTON STREET, including the TRUST, appealed the ORDER OF ABATEMENT, requesting modification of the ORDER OF ABATEMENT to include the PROPERTY OWNERS AT DIVISADERO PLACE, who jointly share in the use and enjoyment of the DISPUTED WALL (“APPEAL”). The PROPERTY 8 Plaintiffs First Amended Complaint for Damageswv co wm NY OWNERS AT WASHINGTON STREET also sought to include the PROPERTY OWNERS AT DIVISADERO STREET in their appeal because the PROPERTY OWNERS AT DIVISADERO STRERT had also been issued Orders of Abatement requiring them to repair the DISPUTED WALL. 36. Plaintiff is informed and believes, and thereon alleges that in late 2014, the San Francisco Department of Building Inspection made the same or similar findings, as described above in Paragraph 33, with regards to the real property located at 2320 — 2322A Divisadero Street, and issued a similar Order of Abatement, as described above in Paragraph 34, to the PROPERTY OWNERS AT DIVISADERO STREET. Plaintiff is further informed and believes, and thereon alleges that the PROPERTY OWNERS AT DIVISADERO STREET appealed the Order of Abatement against them, similar to as described above in Paragraph 35. 37. Plaintiff paid attorney’s fees to RJ&R of no less than $5,000 by way of a check dated October 9, 2014, which went into a reserve fund held by WSHOA. Plaintiff paid such money because WSHOA represented to Plaintiff that these funds were for the payment of attorney’s fees incurred by RJ&R for the individuals and members of the WSHOA. On information and belief, of the $5,000 that was originally paid into the reserve fund, $3,375 was attorney's fees paid to RJ&R, with the balance being later paid to WIEGEL for services provided to Plaintiff. Plaintiff later paid an additional $5,000 into the WSHOA reserve fund for the fees of ATTORNEY DEFENDANTS, by way of a check dated August 25, 2015. Plaintiff paid such money because WSHOA represented to Plaintiff that these funds were for the payment of attorney’s fees incurred by ATTORNEY DEFENDANTS for the individuals and members of the WSHOA. On information and belief, of the $5,000 that was originally paid into the reserve fund, the entirety of these funds were used to pay WIEGEL. True and correct copies of the checks written to WSHOA from the TRUST, by and through its co-trustee Denis Harper, redacted to omit the TRUST, and its co-trustee’s personal information, are attached hereto as Exhibit “P.” 38. Plaintiff understood that the payment to RI&R was for its representation by RJ&R. 9 Plaintiffs First Amended Complaint for Damageswv co wm NY Plaintiff's understanding is based on specific documents and statements in proceedings on the record where RJ&R stated they represented Plaintiff, including but not limited to, at the May 20, 2015 Abatement Appeals Board Hearing, where Melinda Sarjapur, in the course and scope of her employment and agency with RJ&R, stated to the Board that she represented “all seven of the property owners at 2320 to 22A Divisadero Street and 2856 to 62 Washington” rather than the WSHOA. The “seven appellants” included not only the individual members of the WSHOA, but also the individual PROPERTY OWNERS AT DIVISADERO STREET. A true and correct copy of the certified Abatement Appeals Board Transcript is attached hereto as Exhibit “G,” see page 7 at lines 15-19. 39, At the May 20, 2015 Abatement Appeals Board Hearing, Structural Engineer Brett Ferrari testified that the DISPUTED WALL was "clearly built for the benefit of the Divisadero Street property, to flatten the lot and to do so, the hillside had to be cut. Additionally, per Mr. Ferrari’s testimony, the properties on Washington Street were constructed on top of the brick walls, thus the DISPUTED WALL had to have been in existence before those buildings were constructed. See Exhibit G at page 13, line 23 to page 14, line 6. 40. To any extent that any of the PROPERTY OWNERS AT WASHINGTON STREET have any duty to repair, maintain and/or replace the DISPUTED WALL, such duty belongs only to EXCLUSIVE EASEMENT HOLDERS. Because this is an additional defense that Plaintiff could have, and should have, raised in response to the City and County of San Francisco Department of Building Inspections’ NOTICES OF VIOLATION and ORDER OF ABATEMENT, RJ&R represented adverse interests by representing both Plaintiff and the EXCLUSIVE EASEMENT HOLDERS in these proceedings. RJ&R never obtained, nor did they seek, a waiver of such conflict of interest from Plaintiff. CPRC 3-310(c). Al. RJ&R negligently failed to ascertain that the CORNER LOT’S modification of the DISPUTED WALL may have damaged the DISPUTED WALL and caused the condition of the DISPUTED WALL for which PROPRTY OWNERS AT WASHINGTON STREET were issued Orders of Abatement. 10 Plaintiffs First Amended Complaint for Damageswv co wm NY 42. On or about October 18, 2015 the TRUST, along with the other PROPERTY OWNERS AT WASHINGTON STREET engaged WIEGEL to represent their individual interests, and file a lawsuit against the City and County of San Francisco Department of Building Inspection. WIEGEL did not provide attorney-client fee agreement required by law in violation Business and Professions Code Sec. 6148. Nor did WIEGEL provide conflicts waivers pursuant to CRPC 3-310(c). 43, Plaintiff's understanding as to both RJ&R and WIEGEL’S representation of individual interests is also supported by the of the City and County of San Francisco’s Notices related to the administrative proceedings being directed to each of the individual owners, rather than to the Homeowners Association alone. True and correct copies of Notices from the City and County of San Francisco are attached hereto as Exhibit “H”. 44. On January 11, 2016 the TRUST engaged the Law Offices of Triano & Byrne to represent its interest in the UNDERLYING MATTER involving WSHOA and its other individual members, DPHA and its individual members, and the City and County of San Francisco’s Department of Building Inspection. Plaintiff demanded the return of its files from RJ&R, pursuant to CRPC, Rule 3-700. Notwithstanding Plaintiff's demand for its client files, RJ&R has refused to provide Plaintiff with their files, in direct violation of CRPC Rule 3-700. 45. Defendant RJ&R now claims it represented only WSHOA. Defendant had never disclosed to Plaintiff such limitations on their representation in writing or otherwise when Plaintiff retained them. In the alternative that Defendants RJ&R only represented WSHOA, which the TRUST denies, RI&R’s representation of the TRUST at the May 20, 2015 Abatement Appeals Board hearing, among other administrative proceedings, constituted a corrupt or willful appearance without authority. California Business and Professions Code section 6104. 46. On December 21, 2015, Ryan Patrick of WIEGEL, in a telephone call assured the TRUST’S representatives that WIEGEL would file an Amended Petition and Writ on behalf of the I Plaintiffs First Amended Complaint for Damageswv co wm NY TRUST. Previously, WIEGEL had communicated with Plaintiff and promised them that WIEGEL would represent all members of the WSHOA fairly and equally. On December 18, 2015 WIEGEL had sent Plaintiff and the other WSHOA members e-mails and pleadings purporting to do so, leading Plaintiff to believe they were represented by WIEGEL. Plaintiff questioned WIEGEL, which did not respond. Plaintiff requested Martin F. Triano and Mark Byrne, attorneys at the Law Offices of Triano & Byrne, assist them in working with WIEGEL. Mr. Triano and Mr. Byrne were present, and participated in the December 21, 2015 telephone call. Mr. Patrick also represented to Plaintiff's co-trustee Harper, as well as to Mr. Triano and Mr. Byrne, that he would provide the TRUST with a copy of the Amended Petition and Verification for Trust signature the next day. Mr. Triano also offered to meet and discuss the questions as to the common areas and this lawsuit, and hiring a neutral, if necessary. True and correct copies of email correspondence between Plaintiff, other WSHOA members, and WIEGEL pertaining to the verification of the Writ of Administrative Mandate, are attached hereto as Exhibit “I.” 47. On December 22, 2015 the TRUST did not receive the Verification and Amended Petition promised from Mr. Patrick. Only later did WIEGEL state it would not further represent the TRUST, and would not file the promised Amended Petition on behalf of the TRUST. In doing so, WIEGEL violated CRPC Rule, Rule 3-700, by terminating the representation without taking reasonable steps to avoid prejudice to the clients. 48. Plaintiff, by and through The Law Offices of Triano & Byrne, have made repeated requests for their files in the possession of WIEGEL, as well as alternative dispute resolution on behalf of the TRUST to the other members of the WSHOA. WIEGEL has failed and refused to surrender Plaintiff's client file in violation of California Rule of Professional Conduct Rule 3-700. 49. WIEGEL negligently failed to ascertain that the CORNER LOT’S modification of the DISPUTED WALL may have damaged the DISPUTED WALL and caused the condition of the DISPUTED WALL for which all PROPERTY OWNERS AT WASHINGTON STREET were issued 12 Plaintiffs First Amended Complaint for Damageswv co wm NY Orders of Abatement. 50. To any extent 2856 — 2862 Washington Street has any duty to repair, maintain and/or replace the DISPUTED WALL, such duty belongs only to the EXCLUSIVE EASEMENT HOLDERS. Because this is an additional argument that Plaintiff, and WSHOA members other than the EXCLUSIVE EASEMENT HOLDERS, could have, and should have, raised in support of its Writ of Administrative Mandate, WIEGEL represented adverse interests by representing both the EXCLUSIVE EASEMENT HOLDERS and other WSHOA members in these proceedings. WIEGEL never disclosed this potential conflict of interest, nor did they seek a written waiver of such conflict of interest, as required by law. CRPC 3-310(c). 51. Ms. Sarjapur of RJ&R represented the TRUST in the Department of Building Inspections administrative proceedings. Currently the TRUST is being prejudiced in the UNDERLYING MATTER against the City and County of San Francisco Department of Building Inspection by RJ&R’s willful failure and refusal to surrender Plaintiff's client file in direct violation of CRPC, Rule 3-700. In addition to Plaintiff, defendants RJ&R, beginning on September 29, 2014, represented the other members of the WSHOA, as well as DSHA and its members, in the underlying matter, and in proceedings before the City and County of San Francisco Department of Building Inspection, a violation of CRPC Rule 3-310(c). 52. Notwithstanding Plaintiff's need for their file since the filing of a Petition for Writ of Administrative Mandate at the San Francisco Superior Court of California, Defendant RJ&R has failed and refused to surrender Plaintiff's client file, falsely claiming that they were retained solely by the WSHOA, resulting in Plaintiff's case being prejudiced. RJR additionally claimed that it had ceased to retain Plaintiff's client file after having transferred the entire file, including Plaintiffs confidential information to WIEGEL.RJ&R’s claim that it only represented WSHOA, and not WSHOA’s individual members, including but not limited to Plaintiff, was false. The City and County of San Francisco addressed its NOTICES OF VIOLATION, notices of hearings, and ORDER OF ABATEMENT to the 13 Plaintiffs First Amended Complaint for Damageswv co wm NY TRUST as the owner of record. See Exhibits “C,” “D,” “E” and “F”. The transcript of the May 20, 2015 Abatement Appeals Board hearing reflect that Ms. Sarjapur of RJ&R stated she represented “all seven of the property owners at 2320 to 22A Divisadero Street and 2856 to 62 Washington,” including the TRUST, each of whom had a unique case number. See Exhibit “G” at page 7, lines 15-19. 53. Under the California Rules of Professional Conduct, RJ&R was only allowed to turn over Plaintiff’s client file to an attorney representing the same client, and with the client’s consent. If WIEGEL did not represent the same clients as RJ&R, namely the individual PROPERTY OWNERS AT WASHINGTON STREET, then RJ&R committed malpractice by turning over Plaintiff's client file to an adverse party. If WIEGEL did represent the same clients as RJ&R, then WIEGEL represented Plaintiff. 54. In response to the City and County of San Francisco denying the APPEAL, the individual PROPERTY OWNERS AT WASHINGTON STREET retained WIEGEL, who filed a Petition for Writ of Administrative Mandate on December 21, 2015. Notably, WIEGEL included the Plaintiff as a party and Plaintiff's co-trustees as signatories. A true and correct copy of the Petition for Writ of Administrative Mandate filed by WIEGEL is attached hereto as Exhibit “J”. 55. Plaintiff, as a member of the WSHOA, were supposed to be included in said group of petitioners. 56. On December 21, 2015, Plaintiff's agents were present and participated in the telephone call between Plaintiff's co-trustee Denis Harper, and Ryan Patrick, an attorney employed by WIEGEL. During that telephone conversation, Mr. Patrick represented to Plaintiff and his agents, that he, Patrick on behalf of WIEGEL, would send Plaintiff a verification and Amended Petition his review, which Mr. Patrick would then subsequently file an Amended Petition on behalf of the TRUST. 57. Plaintiff never received a Verification and Amended Petition from Mr. Patrick on December 22, 2015. They telephoned Mr. Patrick to inquire about the status of the Verification and Amended Petition. Plaintiff's agent was told that Patrick was out-of-town on vacation, and transferred 14 Plaintiffs First Amended Complaint for Damageswv co wm NY him to Andrew Wiegel, instead. Contrary to the express assurance of his representative, Mr. Patrick, Mr. Wiegel, even though admitting he had not talked to Mr. Patrick, denied the assurances — that they would file an Amended Petition on behalf of the Trust — were made. WIEGEL abandoned its client the TRUST and its beneficiaries, and refused to file an Amended Petition on their behalf. 58. Furthermore, Plaintiff through its representatives have made multiple written requests for alternative dispute resolution on behalf of the TRUST to the other members of the WSHOA between January 19, 2016 and May 26, 2016. A true and correct copy of said January 19, 2016 correspondence is attached hereto as Exhibit “K”. 59. On January 22, 2016 Mr. Wiegel responded, but ignored the specific request for a meeting. A true and correct copy of Mr. Wiegel’s January 22, 2016 e-mail is, attached hereto as Exhibit “L”. 60. On October 10, 2017, the PROPERTY OWNERS AT DIVISADERO PLACE filed and served a Cross-Complaint for Nuisance against the PROPERTY OWNERS AT WASHINGTON STREET, including but not limited to the TRUST (“CROSS-COMPLAINT”). On December 13, 2017, WIEGEL filed an Answer to the CROSS-COMPLAINT, the caption page of which states: “Attomneys’ for Petitioners/Plaintiffs 2856 WASSHINGTON STREET HOMEOWNERS’ ASSOCIATION, LESLIE ZIMMERMAN, DENIS HARPER, ZSUZSANNA SAPER, Trustees of the Rita I. Harper Trust[.]” - December 13, 2017 Answer filed by WIEGEL (“ANSWER”), a true and. correct copy of which is attached hereto as Exhibit “M,” at page 1, lines 5 through 7 (emphasis added). 61. In the alternative that Defendants WIEGEL only represented WSHOA, which the TRUST denies, WIEGEL’S representation of the TRUST by filing the ANSWER constituted a corrupt or willful appearance without authority. California Business and Professions Code section 6104. 62. ATTORNEY DEFENDANTS have engaged on a course or conduct designed to and which has in effect, damaged Plaintiff's interests, by using information obtained from the WSHOA which Plaintiff, as a member of the WSHOA, has a right in, under the guise of defendants representing Plaintiff 15 Plaintiffs First Amended Complaint for Damageswv co wm NY and engaging in attorney-client communications. The defendants have used the fraudulently obtained information to frustrate Plaintiff's rights in the UNDERLYING MATTER, thereby causing Plaintiff harm and damages. Plaintiff did not discover ATTORNEY DEFENDANTS’ breach of duties or suffer damages until December 22, 2015. 63. Plaintiff is informed and believes, based on emails between the TRUST, by and through its co-trustee Denis Harper, and Mel Camhi of Better Property Management (“BPM”), that BPM provides property management services to Defendant WSHOA. Mr. Camhi purports to be the HOA Manager for Defendant WSHOA in said emails. 64. On or about December 9, 2015, Mel Camhi of BPM, at the direction of Defendant WSHOA, charged Plaintiff a Special Assessment of $1,250.00. Plaintiff paid this Special Assessment. 65. On or about March 8, 2016, Mel Camhi of BPM, at the direction of Defendant WSHOA, charged Plaintiff a Special Assessment of $3,000.00. 66. On or about August 22, 2016, Mel Camhi of BPM, at the direction of Defendant WSHOA, charged Plaintiff a Special Assessment of $500.00. 67. The Declaration of Conditions, Covenants and Restrictions for 2856 — 2862 Washington Street (“CC&Rs”) requires that Special Assessments be approved by a majority of the WSHOA Board of Directors. Exhibit A, see section 4.4. 68. Furthermore, the CC&R’s require that any Special Assessment in excess of 5% of Defendant WSHOA’s budgeted gross expense for the fiscal year be approved approval by a majority vote or written consent of the members of WSHOA. The March 8, 2016 Special Assessment of $3,000 was in excess of 5% of WSHOA’s 2016 Annual Actual Expenses of $28,233.49; however, Plaintiff, a member of WSHOA, was never made aware of any such vote or written consent of the members occurring. Exhibit A, see section 4.4; a true and correct copy of the 2856 — 2862 WSHOA Operating Budget Expenses for 2016 is attached hereto as Exhibit “N,” see p. 2. 16 Plaintiffs First Amended Complaint for Damageswv co wm NY 69. Plaintiff has requested all documents related to the above described Special Assessments from Defendant WSHOA. BPM and Defendant WSHOA has refused to disclose any Board of Director minutes, records of votes or any other documents which evidence that the Board of Directors ever voted on or otherwise discussed any of the Special Assessments alleged in Paragraphs 64 through 66. A true and correct copy of Correspondence between Plaintiff and Defendant WSHOA is attached hereto as Exhibit “O.” 70. Because BPM and Defendant WSHOA have refused to disclose the minutes of any Board of Directors’ meeting, or any other documents evidencing any discussion of the above describe Special Assessments, Plaintiff is informed and believes that such Special Assessments were charged to Plaintiff without ever being approved by a majority of the WSHOA Board of Directors. FIRST CAUSE OF ACTION (Legal Malpractice as to ATTORNEY DEFENDANTS) 71. Plaintiff hereby incorporates by reference paragraphs | — 70 of this complaint as though fully set forth herein. 72. Defendants RI&R and WIEGEL each failed to meet the standard of care as follows: a During the respective periods of legal representation by RJ&R and WIEGEL, defendants failed to exercise reasonable care, skill, and diligence in performing their legal duties as attorneys for Plaintiff by acting or omitting to act, including but not limited to as follows: i. RJ&R failed to obtain conflict of interest waivers between the TRUST and other WSHOA members, as well as between WSHOA members and DSHA members; il. RJ&R failed to provide the TRUST with a written retainer agreement; iii. RJ&R’s past and ongoing refusal to release the TRUST’S client file upon request; iv. RJ&R’s wrongful release of said file to WIEGEL, if it is found that WIEGEL did not represent Plaintiff; 17 Plaintiffs First Amended Complaint for Damageswv co wm NY v. RJ&R failing to assert that the CORNER LOT’S negligent modification of the DISPUTED WALL was the cause of the DISPUTED WALL’S condition; vi. WIEGEL failed to provide the TRUST with a written waiver agreement; vii. WIEGEL failed to obtain conflict of interest waivers between the TRUST and other WSHOA members; viii. WIEGEL failing to sue the CORNER LOT for negligence in its modification of the DISPUTED WALL on behalf of Plaintiff and other WSHOA members; ix. WIEGEL’S past and ongoing refusal to release the TRUST’S client file; and x. WIEGEL’S false representation to the TRUST that it would protect the TRUST’S interests by including the TRUST in the Writ of Administrative Mandamus. b. Negligently and carelessly failed to conform to the standard of care by committing acts and omissions by failing to conduct adequate research, discovery, investigation and preparation to adequately represent Plaintiff in conformity with the applicable standard of care, by including but not limited to: i. To date, Plaintiff has paid ATTORNEY DEFENDANTS $10,000.00, but have not been represented in conformity with the standard of care, the requirements of the law, or the California Rules of Professional Conduct. ii. ATTORNEY DEFENDANTS did, and continue to demand payment of their fees, despite the fact that they abandoned Plaintiff, their own client. Plaintiff continues to be pressured to continue to pay defendants fees, and late fees, by a purported “Special Assessment” from the WSHOA. 73. Asa direct and proximate result of the defendants’ errors and omissions as set forth above, Plaintiff has suffered damages in an amount to be proven at trial and in excess of the minimum 18 Plaintiffs First Amended Complaint for Damageswv co wm NY amount required for jurisdiction in this court. Specifically, Plaintiff suffered damages from defendants’ failure to adequacy represent them and withholding their legal files so that they may obtain other counsel to do so. WHEREFORE, Plaintiff prays for judgment as set forth below. SECOND CAUSE OF ACTION (Breach of Contract as to ATTORNEY DEFENDANTS) 74. Plaintiff hereby incorporates by reference paragraphs | through 73 of this complaint as though fully set forth herein. 75. Onor about September 29, 2014, defendant RJ&R entered into an oral or implied contract with Plaintiff to represent and protect Plaintiff's interests in the UNDERLYING MATTER. On or about August of 2015, defendant WIEGEL entered into an oral or implied contract with Plaintiff to represent and protect Plaintiff's interests in the UNDERLYING MATTER. Under each of these contracts, ATTORNEY DEFENDANTS owed Plaintiff the following duties and obligations, among others: a to represent Plaintiff and its interests competently; b. to represent Plaintiff and its interests faithfully and with undivided loyalty; c. to pursue and obtain for Plaintiff all legal remedies and benefits to which they were entitled; d. to represent Plaintiff in accordance with the Rules of Professional Conduct of the State Bar and the State Bar Act; e to advise Plaintiff as to their individual rights and defenses and obtain a written waiver of conflicts of interests when necessary; f. to zealously protect attorney/client communications; and 19 Plaintiffs First Amended Complaint for Damageswv co wm NY g to decline any representation that would result in a conflict of interest. 76. ATTORNEY DEFENDANTS’ conduct as described in paragraph 72, above, constituted a material breach of their oral or implied contractual duties to represent and protect Plaintiff's interests in the underlying matter. 77. Plaintiff alleges, in the alternative, that on or about September 29, 2014, defendant RI&R entered into a written contract with Plaintiff to represent and protect Plaintiffs interests in the UNDERLYING MATTER. Plaintiff further alleges in the alternative, that in or about August of 2015, defendant WIEGEL entered into a written contract with Plaintiff to represent and protect Plaintiff's interests in the UNDERLYING MATTER. As such, ATTORNEY DEFENDANTS owed Plaintiff the following duties and obligations, among others: a. to represent Plaintiff and its interests competently; b. to represent Plaintiff and its interests faithfully and with undivided loyalty; c. to pursue and obtain for Plaintiff all legal remedies and benefits to which they were entitled; d. to represent Plaintiff in accordance with the Rules of Professional Conduct of the State Bar and the State Bar Act; e. to advise Plaintiff as to their individual rights and defenses and obtain a written waiver of conflicts of interests when necessary; f. to zealously protect attorney/client communications; and g. to decline any representation that would result in a conflict of interest. 78. In the alternative, ATTORNEY DEFENDANTS’ conduct as described in paragraph 72, above, constituted a material breach of their written contract(s), which was never provided to Plaintiff, specifically breaching ATTORNEY DEFENDANTS’ duties under such contract(s) to represent and 20 Plaintiffs First Amended Complaint for Damageswv co wm NY protect Plaintiffs interests in the underlying matter. 79. Plaintiff performed all conditions precedent under said contract. 80. As a direct and proximate result of the breach by ATTORNEY DEFENDANTS of their contractual duty to Plaintiff, Plaintiff suffered damages, including incidental and consequential damages, in an amount to be proven at trial and in excess of the minimum amount required for jurisdiction in this court. WHEREFORE, Plaintiff prays for judgment as set forth below. THIRD CAUSE OF ACTION (Breach of Fiduciary Duty/Representation of Adverse Interests/ Conflict of Interest without Waiver as to ATTORNEY DEFENDANTS) 81. Plaintiff re-alleges and incorporates herein paragraphs | through 80 of this complaint as if fully set forth herein. 82. On May 20, 2015 Defendant RJ&R, through Ms. Sarjapur, specifically stated on the record that RJ&R represented all “seven appellants,” one of which was the TRUST. The Trust had its own unique case number for this appeal. Plaintiff, through WSHOA, paid defendants RJ&R $3,325.00 for RJ&R’s representation. Later, and to the present date, defendant RJ&R contrarily asserts that it represented only WSHOA. No conflict of interest waiver was presented or agreed to, and RJ&R and Ms. Sarjapur refuse to turn over the files in the underlying matter. 83. In approximately October 2015 Defendants WIEGEL began representation of the PROPERTY OWNERS AT WASHINGTON STREET individually (including Plaintiff) and WSHOA, an unincorporated entity. Plaintiff, through WSHOA, paid defendants WIEGEL $6,625.00 for legal representation and defendants WIEGEL confirmed verbally and via email that they represented Plaintiff in December 2015. 84. At the time ATTORNEY DEFENDANTS began acting as Plaintiff's attorneys and thereafter, the most confidential relationship existed between them and Plaintiff reposed the greatest 21 Plaintiffs First Amended Complaint for Damageswv co wm NY confidence and trust in ATTORNEY DEFENDANTS. ATTORNEY DEFENDANTS were obligated by the attorney-client relationship to make full disclosure to Plaintiff of all material matters, and to deal fairly, justly, competently and honestly with Plaintiff in all matters. ATTORNEY DEFENDANTS were required to keep all communications in the strictest confident, but did not do so. ATTORNEY DEFENDANTS engaged in a conflict of interest in that they represented both Plaintiff, the unincorporated WSHOA and the other PROPERTY OWNERS AT WASHINGTON STREET at a time when the interests of Plaintiff were different than those of unincorporated WSHOA and the other PROPERTY OWNERS AT WASHINGTON STREET, without advising Plaintiff of the actual or prospective conflict of interest and or obtaining a waiver of the conflict of interest. Because of the relationship between the Plaintiff and ATTORNEY DEFENDANTS as clients and attorneys, ATTORNEY DEFENDANTS stood in a position of a fiduciary to Plaintiff. As such, ATTORNEY DEFENDANTS owed Plaintiff the following duties and obligations, among others: a. to represent Plaintiff and its interests competently: b. to represent Plaintiff and its interests faithfully and with undivided loyalty; c. to pursue and obtain for Plaintiff all legal remedies and benefits to which they were entitled; d. to represent Plaintiff in accordance with the Rules of Professional Conduct of the State Bar and the State Bar Act; e. to advise Plaintiff as to their individual rights and defenses and obtain a written waiver of conflicts of interests when necessary; f. to zealously protect attorney/client communications; and g. to decline any representation that would result in a conflict of interest. 22 Plaintiffs First Amended Complaint for Damageswv co wm NY 85. ATTORNEY DEFENDANT failed to exercise reasonable care and skill in performance of professional services for Plaintiff by failing, inter alia, to properly represent Plaintiff, by failing to properly advise Plaintiff and by engaging in conscious, intentional and malicious advice regarding including Plaintiff in the Petition for Administrative Writ of Mandamus and other legal efforts, by RI&R admittedly failing to retain Plaintiff's client file, and by both RJ&R and WIEGEL failing to produce Plaintiff's client files in violation of California Rule of Professional Conduct 3-700(D). 86. On December 22, 2015 the TRUST did not receive the Verification and Amended Petition promised from Mr. Patrick. Only later did WIEGEL state it would not further represent the TRUST, and would not file the promised Amended Petition on behalf of the TRUST. In doing so, WIEGEL violated CRPC Rule, Rule 3-700, by terminating the representation without taking reasonable steps to avoid prejudice to the clients. ATTORNEY DEFENDANTS further breached said duties by reason of the conduct set forth in the First Cause of Action. 87. Inter alia, defendant RJ&R failed to meet its fiduciary duty by engaging in the conduct complained of herein, including Paragraphs No's: 1, 3-10, 30-31, 33, 37-38, 40-41, 44-45, 51-54 and 62. 88. Inter alia, defendants WIEGEL failed to meet their fiduciary duty by engaging in the conduct complained of herein, including Paragraphs No's: 1-5, 10, 37, 42-43, 46-50, 54-58 and 60-62. 89. As a direct and proximate result of the breach of fiduciary duty and conflict of interest by the ATTORNEY DEFENDANTS, Plaintiff has suffered, inter alia, economic damages including unnecessary attorneys’ fees in an amount beyond the jurisdictional minimum of this court. 90. Plaintiff is entitled to exemplary damages because of the undue influence, oppression and fraud that occurred when ATTORNEY DEFENDANTS refused: a. to protect, and consciously disregarded, Plaintiff's legal rights; b. to provide a defense to Plaintiff; and c. to produce the client’s files. 23 Plaintiffs First Amended Complaint for Damageswv co wm NY 91. Moreover, Plaintiff is informed, believes and thereon alleges that ATTORNEY DEFENDANTS did these things knowing that they owe Plaintiff a fiduciary duty that makes it improper for ATTORNEY DEFENDANTS to act contrary to or assume a position inconsistent and adverse to the interest of Plaintiff. Plaintiff is further informed, believes, and thereon alleges that ATTORNEY DEFENDANTS, in engaging in the actions complained of herein acted intentionally, deliberately, and with conscious disregard of Plaintiff's rights, by taking an adverse position to Plaintiff, to whom ATTORNEY DEFENDANTS owed a duty, all to Plaintiff's harm and damage. WHEREFORE, Plaintiff prays for judgment as set forth below. FOURTH CAUSE OF ACTION (Breach of Fiduciary Duty as to WSHOA) 92. Plaintiff re-alleges and incorporates herein paragraphs | through 91 of this complaint as if fully set forth herein. 93. At the time Plaintiff became a member of the WSHOA, a confidential relationship existed between Plaintiff and defendant WSHOA, by which Plaintiff reposed the greatest confidence and trust in defendant WSHOA as its fiduciary. Defendant WSHOA was obligated by their relationship to make full disclosure to Plaintiff of all material matters, and to deal fairly, justly, and honestly with Plaintiff in all matters. 94. At all times relevant to this Complaint, Plaintiff was a member of Defendant WSHOA. During such times, defendant WSHOA has breached this fiduciary duty by charging Plaintiff special assessment fees, penalties, and filing liens, as described in Paragraphs 37 and 65-67, above. As described in Paragraphs 68-71, above, Defendant WSHOA has done so without approval of the WSHOA board, WSHOA members, and without conducting meetings where Plaintiff have notice and an opportunity to be heard, as required by the WSHOA CC&Rs. Defendants have proceeded to acts as such, claiming the right to do so despite the lack of any approval of such action by a WSHOA Board of 24 Plaintiffs First Amended Complaint for Damageswv co wm NY Directors meeting, any minutes from such meetings or any such meetings taking place. 95. Defendants have not conducted annual meetings of the homeowner’s association or Board of Directors, or in the alternative have refused Plaintiff's requests for the minutes of such meetings. WSHOA has not held elections of officers as required by the bylaws, thereby resulting in there being no elected board, for the property management to inform of events or to receive instruction from. In the alternative, if such elections have been held, Plaintiff has been excluded from participating in these and have been denied access to the results of such elections. 96. | WSHOA has further blocked Plaintiff from accessing WSHOA's online site thereby depriving Plaintiff of information they are entitled to as members of WSHOA. 97. WSHOA has failed to provide proof of authority for special assessment against Plaintiff and Plaintiff has been denied and deprived of the minutes of the WSHOA meetings, in violation of defendants’ statutory duty under the (Davis Sterling Act), Civil Code Sections 5200-5210, to provide said records to Plaintiff upon request. 98. WSHOA has acted by and through its agents so that Plaintiff receives disparate treatment.: a. All other WSHOA members were included in the Writ of Administrative Mandate filed by WIEGEL. As WIEGEL’S purported client, WSHOA had the power to direct WIEGEL’S decision to leave Plaintiff out of WIEGEL’S Writ of Administrative Mandate. b. Plaintiff is informed and believes, and thereon alleged that all other WSHOA membe