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Peter L. Weber - 218473
Allen Kuo - 281775
MURPHY, PEARSON, BRADLEY & FEENEY
88 Kearny Street, 10th Floor
San Francisco, CA 94108-5530
Tel: (415) 788-1900
Fax: (415) 393-8087
Attorneys for Defendants
BRILLANT LAW FIRM, DAVID BRILLANT and
BRIAN CARIDEO
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
01/29/2016
Clerk of the Court
BY-CAROL BALISTRERI
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
YOSHABEL CLEMENTS, an individual,
Plaintiff,
v.
SOJOURN PROPERTIES, INC., a California
corporation, STEVEN G. KING, an individual;
BRILLANT LAW FIRM, a California
professional corporation; DAVID J. BRILLANT,
an individual; BRIAN CARIDEO, an individual;
and DOES | through 50, inclusive,
Defendants.
Case No.: CGC-13-533602
DECLARATION OF DAVID J. BRILLANT
IN SUPPORT OF MOTION TO STRIKE
PURSUANT TO C.C.P. § 425.16
Date: February 26, 2016
Time: 9:30 a.m,
Dept.: 302
Reservation No. 01250226-03
DOF: August 16, 2013
Trial Date: None
Fe
DECLARATION OF DAVID J. BRILLANT IN SUPPORT OF MOTION TO STRIKE PURSUANT TO C.C.P. § 425.16oe ta DM PF YN
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I, David J. Brillant, declare as follows:
1, I am an attorney at law duly licensed to practice law before all the courts of the State
of California, SBN 220895. I am a defendant herein, and the principal of defendant BRILLANT
LAW FIRM. Iam a Certified Specialist, Estate Planning, Trust and Probate Law, by the State Bar of
California Board of Legal Specialization.
2. I have personal knowledge of the following facts, and if called as a witness herein, I
could and would so testify.
3. Defendants Sojourn Properties, Inc., by and through its principal, Steven G. King, has
long been a client of defendant BRILLANT LAW FIRM.
4, Among other things, my firm represented Defendant Sojourn Properties, Inc.
regarding an Unlawful Detainer action (CUD-11-639673) which my office filed in San Francisco
County Superior Court on December 6, 2011 (the “underlying case.”) This Unlawful Detainer action
was based on a failure to comply with a Three-Day Notice to Perform or Quit served on Yoshabel
Clements (plaintiff herein, and defendant therein and hereafter for convenience “Clements.”) A true
and correct copy of the unlawful detainer action is attached to the Compendium of Exhibits as
Exhibit E.
5. As a first appearance on the Unlawful Detainer action, Clements demurred.
Ostensibly, Clements filed her demurrer Jn Pro Per. It clearly appeared to me that the demurrer was
drafted by an attorney. A true and correct copy of the demurrer to the unlawful detainer action is
attached to the Compendium of Exhibits as Exhibit F.
6. After opposition by my office, this Court overruled that demurrer on January 13, 2012.
A true and correct copy of the Order overruling Clements’ demurrer to the unlawful detainer action is
attached to the Compendium of Exhibits as Exhibit G.
7. On January 19, 2012, an attorney named Mark Hooshmand substituted in for
Clements. When he attempted to withdraw, less than a month later, Clements successfully opposed
{01107619.DOC;1} 2Co era Aw PF ww N
that motion (on an alleged no-service ground), again supposedly acting in pro per. It clearly
appeared to me that the opposition was drafted by an attomey. A true and correct copy of Clements’
opposition to attomey Hooshmand’s withdrawal motion is attached to the Compendium of Exhibits
as Exhibit H.
8. A renewed withdrawal motion by attorney Hooshmand garnered yet another
opposition and even a motion to strike the withdrawing lawyer's reply, all again by Clements
purportedly acting in pro per, although it still appeared to me that these papers were drafted by an
attorney. A true and correct copy of Clements’ opposition to attorney Hooshmand’s renewed
withdrawal motion, and her motion to strike the withdrawing lawyer’s reply, are attached to the
Compendium of Exhibits as Exhibit I.
9. On March 23, 2012, this court granted attorney Hooshmand’s withdrawal motion. A
true and correct copy of the court order granting attorney Hooshmand’s withdrawal motion is
attached to the Compendium of Exhibits as Exhibit J.
10. On April 24, 2012, my office, on behalf of Sojourn, filed a request to set trial of the
unlawful detainer action. A true and correct copy of that request to set trial is attached to the
Compendium of Exhibits as Exhibit K.
11. Two days later, on April 24, 2012, attorney Joe Bravo, who is also one of plaintiff's
lawyers in this malicious prosecution suit, substituted into the underlying unlawful detainer action for
the pro per Clements. A true and correct copy of that Substitution of Attorneys is attached to the
Compendium of Exhibits as Exhibit L.
12. On May 8, 2012, Attorney John Hanlin associated into the underlying unlawful
detainer action. Attorney Hanlin is co-counsel with attorney Bravo as plaintiff's lawyers in this
malicious prosecution case. A true and correct copy of that Association of Attorneys is attached to
the Compendium of Exhibits as Exhibit M.
{01107619.D0C;1) 3
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13. On May 9, 2012, the court held a mandatory settlement conference in the underlying
unlawful detainer action. Attorney Joe Bravo appeared personally with Ms. Clements. The case did
not settle and the then-extant trial date of May 14, 2012 remained on calendar.
14. The matter eventually proceeded to a trial department on May 22, 2012. There,
however, all counsel agreed, and affirmatively represented to the court, that they desired private
mediation to reach a global resolution of the unlawful detainer action and what was then-threatened
to be a forthcoming personal injury action by Clements. The court continued the matter to June 18,
2012 for “possible” trial and a status report on the mediation the parties had scheduled for June 13,
2012. ,
15. On June’13, 2012, on an unreported matter, the court continued trial to July 30, 2012
for possible trial and a status report on the mediation to which the parties had agreed.
16. On July 30, 2012, on another unreported matter, the court continued trial to August 13,
2012 for possible trial and a status report on the mediation.
17. After another brief trial appearance on August 13, 2012, the court continued trial to
September 4, 2012.
18. Following the May 9, 2012, mandatory settlement conference, a Mediation was finally
held, on August 24, 2012, but a negotiated settlement did not occur. There, however, Plaintiff
introduced new allegations of uninhabitable conditions at the hotel. Rather than expend resources on
three separate trials, i.e., (1) the extant unlawful detainer, (2) the anticipated habitability action
Plaintiff was threatening to file, and, (3) the still-threatened personal injury action (based on bed bug
bites), my client Sojurn Properties, Inc, desired to resolve all of the issues in one proceeding.
19, The parties had many discussions about mediation to globally resolve the pending
Unlawful Detainer action and the then-threatened (but not yet filed) personal injury and/or
habitability action(s) by Clements. Both Sojourn Properties, Inc. and its insurance carrier were
prepared to expend significant resources to achieve the goals of removing Clements (and Hanlin)
{01107619.DOC;1) 4wom nN HH FW DY
from the hotel room (for which they were still not paying anything), and to avoid expensive litigation
over the alleged personal injuries to Clements and her children.
20. All parties recognized that in order to have a binding settlement, the minor children
would need to have Guardians Ad Litem appointed. Although attorneys Hanlin and Bravo made fitful
attempts to do so, it was slow going. It became apparent that the Guardians Ad Litem for the minor
Clements children would eventually occur, but it was not going to be soon. Nonetheless, it remained
an ultimate and realistic goal of the parties to secure a global end to the litigation.
21. Not only were the parties seeking a global resolution of extant disputes, but ! knew
that even winning the unlawful detainer case would not likely serve to bar the threatened personal
injury and/or habitability claims under the theories of res judicata or collateral estoppel, so there was
no legal or economic value to continuing the Unlawful Detainer action in light of these competing
issues, thus further supporting dismissal of the Unlawful Detainer action to minimize or avoid
unnecessary litigation costs.
22. Land my client decided that it was prudent and cost effective to dismiss the Unlawful
Detainer case without prejudice, await appointment of the Guardians Ad Litem, and then complete the
mediation process to which all parties had agreed (and as to which all counsel had repeatedly
represented to the court was the basis for multiple trial continuances of the Unlawful Detainer trial.)
As such, the voluntary dismissal made sense to me and my client.
23. On August 28, 2012 the Unlawful Detainer case was dismissed without prejudice. A
true and correct copy of that voluntary dismissal without prejudice is attached to the Compendium of
Exhibits as Exhibit N.
24. On November 29, 2012, Plaintiff filed the earlier-threatened personal injury complaint
against Sojurn Properties, Inc and its principal Steven King; that action included her habitability
allegations. This personal injury complaint had long been threatened, but not earlier filed, purportedly
because the Guardians Ad Litem for the minor Clements children had yet to be appointed. A true and
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correct copy of that personal injury complaint is attached to the Compendium of Exhibits as Exhibit
0.
25. Plaintiff filed the original suit for malicious prosecution in this Court on August 16,
2013. A true and correct copy of that original malicious prosecution complaint is attached to the
Compendium of Exhibits as Exhibit P.
_ 26. Plaintiff attempted to serve the original malicious prosecution Complaint on
defendants Brillant Law Firm, me, and Mr. Carideo by mailing Notice and Acknowledgment of
Receipt to the Brillant Law Firm offices. Those forms reflect that they were served by attorney
Hanlin himself. On September 30, 2013, all three Notice and Acknowledgment of Receipt forms (for
Brillant Law Firm, me, and Mr. Carideo) were counter-signed and mailed back to attorney Hanlin, A
true and correct copy of all three executed Notice and Acknowledgment of Receipt forms as to the
original malicious prosecution Complaint are attached to the Compendium of Exhibits as Exhibit Q.
27. Although service of the original malicious prosecution complaint was accomplished
(by executed Notice and Acknowledgment of Receipt), neither Brillant Law Firm, I, nor Mr. Carideo
have ever appeared on the original malicious prosecution action, either in propria personam ot via
counsel,
28. Instead, as we were preparing to file an anti-SLAPP motion to the original complaint
for malicious prosecution, plaintiff filed a first amended complaint (FAC), on November 15, 2013. .
A true and correct copy of that first amended complaint for malicious prosecution is attached to the
Compendium of Exhibits as Exhibit R.
29. Neither Brillant Law Firm, Mr. Brillant, nor Mr. Carideo have ever been served with
Summons and First Amended Complaint.
30. Neither Brillant Law Firm, I, nor Mr. Carideo have ever appeared on the First
Amended complaint for malicious prosecution, either in propria personam or via counsel.
{01107619.DOC;1} 6S
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31. Defendant BRIAN CARIDEO is and was an Attomey associated with my law firm,
from April 2, 2012, to the present. Mr. Carideo actively assisted me in the underlying case.
32. My intent in filing the underlying action was to protect my client’s interests—first
against a non-paying short-term hotel tenant, and then against the same persons who continuously
refused an eminently reasonable request to submit a long-term rental application, so the landlord
could ensure the tenant was a suitable one with reasonable resources to pay rent.
33. Atno time did I believe the underlying claim was invalid, nor did I institute or
maintain the underlying suit primarily because of hostility or ill will.
34. . I did not institute or maintain the underlying proceedings solely for the purpose of
depriving Clements of a beneficial use of her property.
35, I did not institute or maintain the underlying proceedings for the purpose of forcing a
settlement which has no relation to the merits of the claim.
36. I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on Feb
Creek, California.
{01107619.DOC;1} 7
Preview
Peter L. Weber - 218473 Allen Kuo - 281775 MURPHY, PEARSON, BRADLEY & FEENEY 88 Kearny Street, 10th Floor San Francisco, CA 94108-5530 Tel: (415) 788-1900 Fax: (415) 393-8087 Attorneys for Defendants BRILLANT LAW FIRM, DAVID BRILLANT and BRIAN CARIDEO ELECTRONICALLY FILED Superior Court of California, County of San Francisco 01/29/2016 Clerk of the Court BY-CAROL BALISTRERI Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO YOSHABEL CLEMENTS, an individual, Plaintiff, v. SOJOURN PROPERTIES, INC., a California corporation, STEVEN G. KING, an individual; BRILLANT LAW FIRM, a California professional corporation; DAVID J. BRILLANT, an individual; BRIAN CARIDEO, an individual; and DOES | through 50, inclusive, Defendants. Case No.: CGC-13-533602 DECLARATION OF DAVID J. BRILLANT IN SUPPORT OF MOTION TO STRIKE PURSUANT TO C.C.P. § 425.16 Date: February 26, 2016 Time: 9:30 a.m, Dept.: 302 Reservation No. 01250226-03 DOF: August 16, 2013 Trial Date: None Fe DECLARATION OF DAVID J. BRILLANT IN SUPPORT OF MOTION TO STRIKE PURSUANT TO C.C.P. § 425.16oe ta DM PF YN 10 I, David J. Brillant, declare as follows: 1, I am an attorney at law duly licensed to practice law before all the courts of the State of California, SBN 220895. I am a defendant herein, and the principal of defendant BRILLANT LAW FIRM. Iam a Certified Specialist, Estate Planning, Trust and Probate Law, by the State Bar of California Board of Legal Specialization. 2. I have personal knowledge of the following facts, and if called as a witness herein, I could and would so testify. 3. Defendants Sojourn Properties, Inc., by and through its principal, Steven G. King, has long been a client of defendant BRILLANT LAW FIRM. 4, Among other things, my firm represented Defendant Sojourn Properties, Inc. regarding an Unlawful Detainer action (CUD-11-639673) which my office filed in San Francisco County Superior Court on December 6, 2011 (the “underlying case.”) This Unlawful Detainer action was based on a failure to comply with a Three-Day Notice to Perform or Quit served on Yoshabel Clements (plaintiff herein, and defendant therein and hereafter for convenience “Clements.”) A true and correct copy of the unlawful detainer action is attached to the Compendium of Exhibits as Exhibit E. 5. As a first appearance on the Unlawful Detainer action, Clements demurred. Ostensibly, Clements filed her demurrer Jn Pro Per. It clearly appeared to me that the demurrer was drafted by an attorney. A true and correct copy of the demurrer to the unlawful detainer action is attached to the Compendium of Exhibits as Exhibit F. 6. After opposition by my office, this Court overruled that demurrer on January 13, 2012. A true and correct copy of the Order overruling Clements’ demurrer to the unlawful detainer action is attached to the Compendium of Exhibits as Exhibit G. 7. On January 19, 2012, an attorney named Mark Hooshmand substituted in for Clements. When he attempted to withdraw, less than a month later, Clements successfully opposed {01107619.DOC;1} 2Co era Aw PF ww N that motion (on an alleged no-service ground), again supposedly acting in pro per. It clearly appeared to me that the opposition was drafted by an attomey. A true and correct copy of Clements’ opposition to attomey Hooshmand’s withdrawal motion is attached to the Compendium of Exhibits as Exhibit H. 8. A renewed withdrawal motion by attorney Hooshmand garnered yet another opposition and even a motion to strike the withdrawing lawyer's reply, all again by Clements purportedly acting in pro per, although it still appeared to me that these papers were drafted by an attorney. A true and correct copy of Clements’ opposition to attorney Hooshmand’s renewed withdrawal motion, and her motion to strike the withdrawing lawyer’s reply, are attached to the Compendium of Exhibits as Exhibit I. 9. On March 23, 2012, this court granted attorney Hooshmand’s withdrawal motion. A true and correct copy of the court order granting attorney Hooshmand’s withdrawal motion is attached to the Compendium of Exhibits as Exhibit J. 10. On April 24, 2012, my office, on behalf of Sojourn, filed a request to set trial of the unlawful detainer action. A true and correct copy of that request to set trial is attached to the Compendium of Exhibits as Exhibit K. 11. Two days later, on April 24, 2012, attorney Joe Bravo, who is also one of plaintiff's lawyers in this malicious prosecution suit, substituted into the underlying unlawful detainer action for the pro per Clements. A true and correct copy of that Substitution of Attorneys is attached to the Compendium of Exhibits as Exhibit L. 12. On May 8, 2012, Attorney John Hanlin associated into the underlying unlawful detainer action. Attorney Hanlin is co-counsel with attorney Bravo as plaintiff's lawyers in this malicious prosecution case. A true and correct copy of that Association of Attorneys is attached to the Compendium of Exhibits as Exhibit M. {01107619.D0C;1) 3 | ieo oN DH PWN & 13. On May 9, 2012, the court held a mandatory settlement conference in the underlying unlawful detainer action. Attorney Joe Bravo appeared personally with Ms. Clements. The case did not settle and the then-extant trial date of May 14, 2012 remained on calendar. 14. The matter eventually proceeded to a trial department on May 22, 2012. There, however, all counsel agreed, and affirmatively represented to the court, that they desired private mediation to reach a global resolution of the unlawful detainer action and what was then-threatened to be a forthcoming personal injury action by Clements. The court continued the matter to June 18, 2012 for “possible” trial and a status report on the mediation the parties had scheduled for June 13, 2012. , 15. On June’13, 2012, on an unreported matter, the court continued trial to July 30, 2012 for possible trial and a status report on the mediation to which the parties had agreed. 16. On July 30, 2012, on another unreported matter, the court continued trial to August 13, 2012 for possible trial and a status report on the mediation. 17. After another brief trial appearance on August 13, 2012, the court continued trial to September 4, 2012. 18. Following the May 9, 2012, mandatory settlement conference, a Mediation was finally held, on August 24, 2012, but a negotiated settlement did not occur. There, however, Plaintiff introduced new allegations of uninhabitable conditions at the hotel. Rather than expend resources on three separate trials, i.e., (1) the extant unlawful detainer, (2) the anticipated habitability action Plaintiff was threatening to file, and, (3) the still-threatened personal injury action (based on bed bug bites), my client Sojurn Properties, Inc, desired to resolve all of the issues in one proceeding. 19, The parties had many discussions about mediation to globally resolve the pending Unlawful Detainer action and the then-threatened (but not yet filed) personal injury and/or habitability action(s) by Clements. Both Sojourn Properties, Inc. and its insurance carrier were prepared to expend significant resources to achieve the goals of removing Clements (and Hanlin) {01107619.DOC;1) 4wom nN HH FW DY from the hotel room (for which they were still not paying anything), and to avoid expensive litigation over the alleged personal injuries to Clements and her children. 20. All parties recognized that in order to have a binding settlement, the minor children would need to have Guardians Ad Litem appointed. Although attorneys Hanlin and Bravo made fitful attempts to do so, it was slow going. It became apparent that the Guardians Ad Litem for the minor Clements children would eventually occur, but it was not going to be soon. Nonetheless, it remained an ultimate and realistic goal of the parties to secure a global end to the litigation. 21. Not only were the parties seeking a global resolution of extant disputes, but ! knew that even winning the unlawful detainer case would not likely serve to bar the threatened personal injury and/or habitability claims under the theories of res judicata or collateral estoppel, so there was no legal or economic value to continuing the Unlawful Detainer action in light of these competing issues, thus further supporting dismissal of the Unlawful Detainer action to minimize or avoid unnecessary litigation costs. 22. Land my client decided that it was prudent and cost effective to dismiss the Unlawful Detainer case without prejudice, await appointment of the Guardians Ad Litem, and then complete the mediation process to which all parties had agreed (and as to which all counsel had repeatedly represented to the court was the basis for multiple trial continuances of the Unlawful Detainer trial.) As such, the voluntary dismissal made sense to me and my client. 23. On August 28, 2012 the Unlawful Detainer case was dismissed without prejudice. A true and correct copy of that voluntary dismissal without prejudice is attached to the Compendium of Exhibits as Exhibit N. 24. On November 29, 2012, Plaintiff filed the earlier-threatened personal injury complaint against Sojurn Properties, Inc and its principal Steven King; that action included her habitability allegations. This personal injury complaint had long been threatened, but not earlier filed, purportedly because the Guardians Ad Litem for the minor Clements children had yet to be appointed. A true and {01107619.D0C;1} 5 i i : j 1 4 }eC oN DH PF WN 10 correct copy of that personal injury complaint is attached to the Compendium of Exhibits as Exhibit 0. 25. Plaintiff filed the original suit for malicious prosecution in this Court on August 16, 2013. A true and correct copy of that original malicious prosecution complaint is attached to the Compendium of Exhibits as Exhibit P. _ 26. Plaintiff attempted to serve the original malicious prosecution Complaint on defendants Brillant Law Firm, me, and Mr. Carideo by mailing Notice and Acknowledgment of Receipt to the Brillant Law Firm offices. Those forms reflect that they were served by attorney Hanlin himself. On September 30, 2013, all three Notice and Acknowledgment of Receipt forms (for Brillant Law Firm, me, and Mr. Carideo) were counter-signed and mailed back to attorney Hanlin, A true and correct copy of all three executed Notice and Acknowledgment of Receipt forms as to the original malicious prosecution Complaint are attached to the Compendium of Exhibits as Exhibit Q. 27. Although service of the original malicious prosecution complaint was accomplished (by executed Notice and Acknowledgment of Receipt), neither Brillant Law Firm, I, nor Mr. Carideo have ever appeared on the original malicious prosecution action, either in propria personam ot via counsel, 28. Instead, as we were preparing to file an anti-SLAPP motion to the original complaint for malicious prosecution, plaintiff filed a first amended complaint (FAC), on November 15, 2013. . A true and correct copy of that first amended complaint for malicious prosecution is attached to the Compendium of Exhibits as Exhibit R. 29. Neither Brillant Law Firm, Mr. Brillant, nor Mr. Carideo have ever been served with Summons and First Amended Complaint. 30. Neither Brillant Law Firm, I, nor Mr. Carideo have ever appeared on the First Amended complaint for malicious prosecution, either in propria personam or via counsel. {01107619.DOC;1} 6S oe NDA HW FF YW NHN 31. Defendant BRIAN CARIDEO is and was an Attomey associated with my law firm, from April 2, 2012, to the present. Mr. Carideo actively assisted me in the underlying case. 32. My intent in filing the underlying action was to protect my client’s interests—first against a non-paying short-term hotel tenant, and then against the same persons who continuously refused an eminently reasonable request to submit a long-term rental application, so the landlord could ensure the tenant was a suitable one with reasonable resources to pay rent. 33. Atno time did I believe the underlying claim was invalid, nor did I institute or maintain the underlying suit primarily because of hostility or ill will. 34. . I did not institute or maintain the underlying proceedings solely for the purpose of depriving Clements of a beneficial use of her property. 35, I did not institute or maintain the underlying proceedings for the purpose of forcing a settlement which has no relation to the merits of the claim. 36. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on Feb Creek, California. {01107619.DOC;1} 7