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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
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Case Number: CGC-11-516078
Filing Date: Apr-12-2012 3:13
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MEMORANDUM OF POINTS AND AUTHORITIES
SAL CASTILLO VS. RALPH DAYAN
001003573920
Instructions:
Please place this sheet on top of the document to be scanned.LEWIS
BRISBOIS
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LEWIS BRISBOIS BISGAARD & SMITH LLP
HELEN LEE GREENBERG, SB# 230682
E-Mail: greenberg@|bbslaw.com
NICOLE L. JONES, SB# 247152
E-Mail: jonesn@|bbslaw.com
One Sansome Street, Suite 1400
San Francisco, California 94104
Telephone: 415.362.2580
Facsimile: 415.434.0882
GORDON & REES, LLP
ANDREW CASTRICONE, SB # 154607
E-Mail: acastricone@gordonrees.com
KIRSTEN MCNELLY BIBBES, SB # 276308
E-Mail: kbibbes@gordonrees.com
275 Battery Street, Suite 2000
San Francisco, California 94111
Telephone: 415.986.5900
Facsimile: 415.986.8054
Attorneys for Defendants 1090 EDDY ST, LLC;
ADAM KOMOSA, individually and dba JASON
ADAMS MANAGEMENT CO.; RALPH
DAYAN and TOM SWIERK (erroneously named
and served herein as TOM SWIERT)
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
SAL CASTILLO and NANCY
WILLIAMSON, individually and on behalf of
all similarly situated individuals,
Plaintiffs,
vs.
1090 EDDY ST, LLC, ADAM KOMOSA,,
individually and dba JASON ADAMS
MANAGEMENT CO., RALPH DAYAN,
TOM SWIERT and DOES 1 to 100,
Defendants.
4825-8221-8767.1
CASE NO. CGC-11516078
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANTS’ DEMURRER TO
PLAINTIFFS’ FIRST AMENDED
COMPLAINT
Judge: Hon. Harold E. Kahn
Date: March 23, 2012
Time: 9:30 a.m.
Crtrm.: 302
Action Filed: November 22, 2012
Trial Date: None Set
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANTS’ DEMURRER TO
PLAINTIFFS’ FIRST AMENDED COMPLAINTLEWIS
BRISBOIS
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TABLE OF CONTENTS
L INTRODUCTION ...0...cecceceteeeeeeeteee
I ALLEGATIONS OF PLAINTIFF'S COMPLAINT .........cccccsscssscsssccusesssssesvenenseenens 1
THT, = ARGUMENT... ccccsssseecsssessssenscsessecenssnssessavecesssasessuneccessecesssuessssssssessevecsssescessanesssonveeseees 4
A. Legal Authority for Demurren oo... ecccssssssscssseecesssecsssssceassuecsesssessessssssesseesse 4
B. Plaintiffs’ Allegations Demonstrate that No Class Can Be Certified.................. 5
1. Tintroduction ......sseseccessecssessssessssecsseeeesesenvesssseesasosnsessueesssesanessucesneessnecessscsses 5
2. Plaintiffs’ Class Action Allegations May Be Challenged By
Demurrer and / or By Motion to Strike... esssssesssesssseccssessseeessessseeesnesssee 5
3. Plaintiffs Have Not Alleged Facts Establishing Entitlement to
Proceed as Class Representative or to Maintain a Class Action.........cee0 5
4. Plaintiff is Not an Adequate Class Representative Because His
Claims are Not Typical of the Class ......c.ccesscssssssssseessesssessssesseseessesseeseeseesses 8
5. The “Superiority of Class Action” Requirement is Not Met..
Cc The Third Cause of Action Fails to State Facts Sufficient to Constitute
a Cause of Action for Breach of the Covenant of Quiet Enjoyment
Because there are No Allegations of “Substantial” Action Intended to
Deprive Plaintiff of His Rental Unit .....0.........ccccssssssessssessesesssseessecssascnssecesesesneces 9
D. The Tenth Cause of Action Fails to State Facts Sufficient to Constitute
a Cause of Action for Intentional Infliction of Emotional Distress
Because there are No Allegations of Extreme and Outrageous Conduct,
or Severe Emotional Distress ...........cccsccccscssesssesessessseesseecseecsnesesneesssnsssvecensesnss 10
TV. — CONCLUSION 0... cesssecssscescseessrsssseessueesssssneesarecnusecsasennesssnssaseesueassuesseccsnansssenssseessaesase 12
4825-8221-8767.1 i
TABLE OF CONTENTS_
TABLE OF AUTHORITIES
Page
CASES
Andrews v. Mobile Aire Estates
(2005) 125 Cal.App.4th 578
Ankeny v. Lockheed Missiles and Space Co.
(1979) 88 Cal. App.3d S31 v.csecssssecssssessesnsesessssesssserscsssscessnsccesseesssvessssavsesssnesecesseseessase 11, 12
Aweeka v. Bonds
(1971) 20 Cal. App.3d 278 o..ccsescsseecssssesesssseecesnesssneessssecsesniscassseeasseceersseemessseessaeeesssseies LL
Barsurco v. 21st Century Ins. Co.
(2003) 108 Cal.App.4th 110 .cecscsccessssessssecstessscscnsessssesssessnsessecssveessesessavesseessssessaneessvensevecsse 6
ec emt AH BR WN
Blank v. Kirwan
(1985) 39 Cal.3d 311
_
>
Brown v. Regents of the University of California
(1984) 151 Cal.App.3d 982
—_—
nom
Burkle v. Burkle
(2006) 144 Cal.App.4th 387
_
aw
Canon U.S.A., Inc. v. Superior Court
(1998) 68 Cal App.4th DT vcvccscsssssssssssscsessessessessssssssassesusecsssevsusssssrsessesesssessecseeseessenussassasesss 5
—
an
Careau & Co. v. Security Pacific Business Credit, Inc.
(1990) 222 Cal App.3d 137] ....ecsesssssesssssesssssssesssserecsessesssusesssssecegsorsesesneeeesueseersnueessseeressee 4
.
an
City of San Jose v. Superior Court
(1974) 12 Cal.3d 447 vocccccssessssessssessssecsseessesssneessessnsessaresneeesnusssneessessuesssseessesensseeseesssseeeavense 8
—_
oo sl
Cochran v. Cochran
(1998) 65 Cal.App.4th 488 ....
=
o
Coleman v. Republic Indemnity Ins. Co.
(2005) 132 Cal. App.4th 403 .reccsssssesssseesssseessasessessasecssseeecssseesssnesssssusessueeecssaeeessnnecsasnnesessas 12
wy oy
= S&S
Davidson vy. City of Westminster
(1982) 32 Cal.3d 197 ooscesccscssscsccssssescssesseecsssstsnusssssseassesseuasssssstvenseevansessusnesteuaseeecuset 12
Ne
N
Dean Witter Reynolds, Inc. v. Superior Court
(1989) 211 Cal. App.3d 758 oo. escsecsssessuescssessvesssscsnsessseessscsssessereessecssseeessesessetsesessseeesee 8
N oN
a w&
Fisher v. San Pedro Peninsula Hospital
(1989) 214 Cal.App.3d 590 ...
vy
wn
Gilbert v. State of California
(1990) 218 Cal. App.3d 234 vvecscsssseessrsessssssneesssseesssarecennsrecsnaseesnussesssavsessneessssuuessssunestesses 4
Nn oN
aA
Godfrey v. Sieinpress
(1982) 128 Cal App.3d 154 wccssssecssecsssseessssecccenesssneessnveecsssecesstsscsssuesessessecessnnessarsnes 11,12
»
oO
LEWIS
BRISBOIS
BISGAARD 4825-8221-8767.1 i
sae TABLE OF AUTHORITIESLEWIS
BRISBOIS
BISGAARD
& SMITH UP
ATTORNENS a LAW
Lockheed Martin Corp. v. Superior Court
(2003) 29 Cal.4th 1096, 1104.0... cesssssescsssssecssssesesssssessssscsssseccssseessssesssessseeessnsseessuusesssavecssese 5
Newby v, Alto Riviera Apartments
(1976) 60 Cal. App.3d 288 voces ccssescsssssneseteessneeesessstssssessiseeseessuuenecersessesneessesees 10, 11
Newell v. State Farm
(2004) 118 Cal. App.4th 1094 oo. cscccessseessecssnsssscsssssseseessessessssssssnsnssessersnssneveseessensenees 6
Pierce v, Nash
(1954) 126 Cal.App.2d 606 ..
Serrano y. Priest
(1971) 5 Cal 3d 584 ooo, ececcsasesssssecsssssssssnseccesseeeessesessnuesesssssensasessansessssseeecsnseccussaserssavteseens 4
Tooke v. Allen
(1948) 85 Cal App.2d 280 v..ceeccscssescssesssnessseessessnuecssessseesnesssvesssuscsseesssesssvessseccusesesseeeenveese 10
Wilens v. TD Waterhouse Group, Inc.
(2004) 120 Cal. App.4th 746 ....ccccssssssescsssesssecssesnessnesrnsecsnsseusesssuessussssneesseceesvecsseseesnersseeess 9
STATUTES
Business and Professions Code §17200........cessssscsssessssesvessecsscsseessesneesscssecseanscsssssscsseecausereesreeseenvers 8
California Code of Civil Procedure §382 .0......sccsssssseessssesssssssssesvecssvessussessesssssaseesseesesseetsssenssessasses 5
California Code of Civil Procedure §425.10 o...cecceessssesssesseessesssessessesssssscsssessesesseasecssresaveeneearseneenseess 4
California Code of Civil Procedure $430.10 ...scssssssessusessssssnessssessseessscssseessesesssesesvessaseenssesaseessneees 4
California Code of Civil Procedure §430.30(a)....
OTHER AUTHORITIES
12 Witkin Summary of California Law
Real Propperty §566(1).....c..ccccceesessssssscesssesssecsecsecssessucsrescecssessecseessessesessesapecsessessssssaneaseaveess 9
4825-821-8767.1 iii
TABLE OF AUTHORITIESLEWIS
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1090 EDDY ST, LLC; ADAM KOMOSA, individually and dba JASON ADAMS
MANAGEMENT CO.; RALPH DAYAN and TOM SWIERK (erroneously named and served
herein as TOM SWIERT) (hereinafter referred to as “Defendants”) respectfully submit the
following Demurrer to Plaintiffs’ First Amended Complaint (“FAC”).
Defendant’s Demurrer should be sustained, without leave to amend.
1 INTRODUCTION
This litigation concerns Plaintiffs’ tenancies at 1090 Eddy Street in San Francisco, and
allegations of “inconvenience, habitability issues, statutory damages, annoyance, and discomfort”
by Defendants (owner and managers of the building). Plaintiff alleges thirteen Causes of Action
against Defendants: (1) Breach of Implied Warranty of Habitability; (2) Negligence; (3) Breach of
Warranty of Quiet Enjoyment; (4) Unfair Business Practices; (5) Constructive Eviction; (6)
Violation of San Francisco Rent Control Ordinance; (7) Negligent Infliction of Emotional
Distress; (8) Intentional Infliction of Emotional Distress; (9) Retaliatory Eviction; (10) Elder
Abuse; (11) Disability Discrimination; (12) Nuisance; and (13) Violation of Civil Code 1942.4.
Plaintiffs have filed this matter as a “Class Action” in San Francisco County Superior
Court against Defendants. This Class Action has not been certified. Upon information and belief,
no notices to the potential class members have been mailed.
Plaintiffs have alleged in their FAC and in their prayer for relief that they are entitled to,
among other things, punitive damages. However, Plaintiff's claims for punitive damages are
improper, and are not supported by the allegations contained within his Complaint. Despite the
fact that California law requires that a claim for punitive damages be based on specific factual
allegations of malice, oppression or fraud, Plaintiff has completely failed to plead facts supporting
the basis for recovery of punitive damages.
Il. ALLEGATIONS OF PLAINTIFE’S COMPLAINT
Plaintiff Castillo filed his complaint in this action on November 22, 2011. Following the
filing of a Demurter and Motion to Strike by Defendants, Plaintiffs filed the instant First Amended
Complaint (“FAC”). The allegations of the Complaint may be fairly summarized as follows for
purposes of this Motion to Strike:
4825-8221-8767.1
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO
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Plaintiff Castillo moved in his current apartment at 1090 Eddy Street in 1995, pursuant to a
written lease, and Plaintiff Williamson moved into her apartment in 1974, also pursuant to a
written lease. There are approximately 48 units in the building, and many of the units have had
multiple residents. (FAC, §12.) Plaintiffs allege that as to them, and the putative class of
residents, mold exists throughout the building, including in common areas. (FAC, {[18(a).)
Plaintiffs allege that Defendants had a general policy of refusing to make repairs, harassing
tenants, retaliating against tenants who requested repairs, refusing to follow the law as a pattern of
causing longer term residents to move out. (FAC, 118(b-c).) Plaintiffs allege that Defendants’
motive for attempting to recover possession of the premises was impermissible under the San
Francisco Residential Rent Stabilization and Arbitration Ordinance, and that they violated their
duty of reasonable care in the ownership and management of the premises by failing to make
repairs, delaying in making repairs, and negligently performing repairs. (FAC, §18(f-h).)
Plaintiffs further allege that Defendants acted with intent to cause living conditions to be so
intolerable that residents would be forced to vacate, and that construction and improvements were
done without permits or safeguards. (FAC, 1 8(i-j).)
Plaintiffs allege that a Class Action is proper on behalf of their FAC and is composed of
any persons who have been in occupancy at the premises for thirty days or more, or were asked to
leave before thirty days had elapsed from a four year period prior to November 22, 2011. (FAC,
4112, 15.) Plaintiffs are unable to state the precise number of potential members of the class, who
are so numerous that joinder of all would be impracticable. (FAC, 917.)
Plaintiffs allege the common questions of law and fact that predominate as to all the class
members include, inter alia: (a) whether mold exists throughout the building, including in the
common areas; (b) whether the Owners and Agents have a general policy of refusing to make
repairs; (c) whether the Owners and Agents have a general policy of harassing tenants; (d) whether
the Owners and Agents have a general policy of retaliating against tenants who request repairs and
otherwise asserted their rights directly or through notification to governmental agencies; (c)
whether the Owners and Agents have a general policy of refusing to follow the law as a pattern of
causing longer term tenants to move out; (f) whether Defendants refused to perform needed repairs
4825-8221-8767,1
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO
PLAINTIFFS’ FIRST AMENDED COMPLAINTLEWIS
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throughout the building as part of a common plan in order to ensure regular turnover at the
property; (g) whether the Owner and Agents took the actions alleged in the complaint, including
construction and renovation in complete disregard of the effect on the tenants in an attempt to
force them to leave the premises; (h) whether the Owner-Defendants’ dominant motive for
attempting to recover possession of the premises was permissible under section 37.9(a) of the San
Francisco Residential Rent Stabilization and Arbitration Ordinance; (i) whether the Owner and
their contractors instituted a campaign that violated Proposition M and section 37.10B(a), which
provides that “No landlord, and no agent, contractor, subcontractor or employee of the landlord
shall do any of the following in bad faith or with ulterior motive or without honest intent: (1)
interrupt, terminate or fail to provide housing services required by contract or by State, County or
local housing, health or safety laws; (2) fail to perform repairs and maintenance required by
contract or by State, County or local housing, health or safety laws; (4) abuse the landlord's right
of access into a rental housing unit as that right is provided by law; (5) influence or attempt to
influence a tenant to vacate a rental housing unit through fraud, intimidation or coercion; (10)
interfere with a tenants right to quiet use and enjoyment of a rental housing unit as that right is
defined by California law; (11) refuse to accept or acknowledge receipt of a tenants lawful rent
payment; or (13) interfere with a tenant’s right to privacy [sic]; (j) whether the Owner-Defendants
violated their duty to exercise reasonable care in the ownership, operation, management, and
control of the subject premises by refusing to honor their obligations including the failure to make
repairs, delays in making repairs, and negligently performing repairs; (k) whether the Owner-
Defendants acted with specific intent to cause Plaintiffs’ living conditions to become so
intolerable that they would be forced to vacate; (1) whether the Owner-Defendants conducted
construction and improvements without necessary permits and without implementing reasonable
safeguards; (m) whether Defendant neglected their duties to make repairs; and (n) whether
Defendants violated local and state law by failing to provide for amenities and services required
by local and state law. (FAC, § 18.)
Plaintiffs’ Prayer for Relief seeks: (1) general and special damages in the minimum
amount of $5,000,000; punitive damages as to the First, Third, Fifth, Sixth, Seventh, Eighth,
4825-8221-8767.1
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO
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Ninth, Tenth, and Eleventh causes of action; (3) attorneys fees and treble damages as to the Sixth
and Thirteenth causes of action; (4) attorney’s fees pursuant to contract and statute as to all causes
of action; (5) costs of suit herein incurred; and (6) for prejudgment interest from the date of the
filing of the complaint, or such earlier date as damages can be assessed with reasonable certainty.
Il. ARGUMENT
A. Legal Authority for Demurrer
Code of Civil Procedure section 430.30, subdivision (a), states:
When any ground for objection to a complaint, cross-complaint, or answer appears on the
face thereof, or from any matter of which the Court is required to or may take judicial notice, the
objection on that ground may be taken by a demurrer to the pleading.
Code of Civil Procedure section 430,10 states, in relevant parts:
The party against whom a complaint or cross-complaint has been
filed may object, by demurrer or answer as provided by section
430.30 on any one or more of the following grounds:
(e) The pleading does not state facts sufficient to
constitute a cause of action.
(f) The pleading is uncertain. As used in this
subdivision, “uncertain” includes ambiguous and
unintelligible.
In reviewing a demurrer, the Court considers admitted the truth of all material facts
properly pleaded, which do not include contentions, deductions, or conclusions of facts or law.
Blank v. Kirwan (1985) 39 Cal.3d 311, 318, (citing Serrano v. Priest (1971) 5 Cal.3d 584,591.)
The Code of Civil Procedure requires a complaint to contain a statement of fact, pled in concise
and ordinarily language, constituting a cause of action. (Cal. Code Civ. Proc. § 425.10.) Itis both
improper and insufficient, therefore, for a plaintiff to simply plead the evidence by which he hopes
to prove such ultimate facts. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222
Cal.App.3d 1371, 1390.) If the allegations on the face of the complaint do not establish essential
elements of, and fail to state, a cause of action, the plaintiff's claim is defective as a matter of law,
and a demurrer thereto must be sustained. (Gilbert v. State of California (1990) 218 Cal.App.3d
234, 240-41.)
4825-8221-8767.1
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO
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B. Plaintiffs’ Allegations Demonstrate that No Class Can Be Certified
1. Introduction
In their complaint, Plaintiffs “bring this action individually and on behalf and all other
persons similarly situated [... as] any persons who have been in occupancy at the premises for
thirty or more consecutive days during [the four years prior to the filing of the Complaint], or who
were asked to leave before 30 days elapsed.”
This “class” cannot be certified and all class action allegations should be dismissed and / or
stricken from the complaint for the reasons set forth below.
2. Plaintiffs’ Class Action Allegations May Be Challenged By Demurrer and /
or By Motion to Strike
Class actions are appropriate only in limited circumstances. “[Wyhere the invalidity of the
class allegations is revealed on the face of the complaint and/or by matters subject to judicial
notice, the class issue may be properly disposed of by demurrer or motion to strike... In such
circumstances, there is no need to incur the expense of an evidentiary hearing or class-related
discovery.” (Canon U.S.A, Inc. v. Superior Court (1998) 68 Cal.App.4th 1, 5.)
3. Plaintiffs Have Not Alleged Facts Establishing Entitlement to Proceed as
Class Representative or to Maintain a Class Action
Class action treatment is proper only “when the question is one of common or general
interest, of many persons, or when the parties are numerous, and it is impractical to bring them all
before the Court.” (Cal. Code Civ. Proc. § 382.) The putative class representative must plead and
later prove “both an ascertainable class and a well-defined community of interest among the class
members.’ [citation omitted]” Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096,
1104.) Thus, Plaintiffs must allege ultimate facts establishing that: (1) common questions of law
and fact predominate; (2) their claims are typical of those held by members of the class; and, (3)
they adequately represents the interests of the class members. (Id)
Class treatment is inappropriate when, as here, each class member, in order to vindicate his
or her rights under the facts alleged, would be required to litigate numerous and substantial
questions to establish his or her individual right to recover. “If the ability of each member of the
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO
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class to recover clearly depends on a separate set of facts applicable only to him, then all of the
policy considerations which justify class actions equally compel the dismissal of such
inappropriate actions at the pleading stage.” (Brown v. Regents of the University of California
(1984) 151 Cal.App.3d 982, 989, Newell v. State Farm (2004) 118 Cal.App.4th 1094, 1102-04;
Barsurco v. 21st Century Ins. Co. (2003) 108 Cal.App.4th 110, 118-19.)
Here, it is clear that there can be no “typical” class. While it can be easily ascertained who
has lived at the subject premises for the length of time during the subject period, every tenant has a
different living situation. Plaintiff Castillo’s complaints are very specific, stemming from his
requests for repairs, alleged faulty or illegal construction, retaliation, and harassment. These types
of issues are unique to each tenant, which would also vary depending on the length of tenancy.
Thus, in the case presently before the court, each purported member of the “class” will be
required to litigate individually numerous and substantial questions, including, but not limited to:
(a) whether mold exists throughout the building, including in the common areas; (b) whether the
Owners and Agents have a general policy of refusing to make repairs; (c) whether the Owners and
Agents have a general policy of harassing tenants; (d) whether the Owners and Agents have a
general policy of retaliating against tenants who request repairs and otherwise asserted their rights
directly or through notification to governmental agencies; (e) whether the Owners and Agents
have a general policy of refusing to follow the law as a pattern of causing longer term tenants to
move out; (f) whether Defendants refused to perform needed repairs throughout the building as
part of a common plan in order to ensure regular turnover at the property; (g) whether the Owner
and Agents took the actions alleged in the complaint, including construction and renovation in
complete disregard of the effect on the tenants in an attempt to force them to leave the premises;
(h) whether the Owner-Defendants’ dominant motive for attempting to recover possession of the
premises was permissible under section 37.9(a) of the San Francisco Residential Rent Stabilization
and Arbitration Ordinance; (i) whether the Owner and their contractors instituted a campaign that
violated Proposition M and section 37.10B(a), which provides that “No landlord, and no agent,
contractor, subcontractor or employee of the landlord shall do any of the following in bad faith or
with ulterior motive or without honest intent: (1) interrupt, terminate or fail to provide housing
4825-8221-8767.1
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO
PLAINTIFFS’ FIRST AMENDED COMPLAINTCet ADA nH ke Bw KY
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services required by contract or by State, County or local housing, health or safety laws; (2) fail to
perform repairs and maintenance required by contract or by State, County or local housing, health
or safety laws; (4) abuse the landlord’s right of access into a rental housing unit as that right is
provided by law; (5) influence or attempt to influence a tenant to vacate a rental housing unit
through fraud, intimidation or coercion; (10) interfere with a tenants right to quiet use and
enjoyment of a rental housing unit as that right is defined by California law; (11) refuse to accept
or acknowledge receipt of a tenants lawful rent payment; or (13) interfere with a tenant’s right to
privacy [sic]; (j) whether the Owner-Defendants violated their duty to exercise reasonable care in
the ownership, operation, management, and control of the subject premises by refusing to honor
their obligations including the failure to make repairs, delays in making repairs, and negligently
performing repairs; (k) whether the Owner-Defendants acted with specific intent to cause
Plaintiffs’ living conditions to become so intolerable that they would be forced to vacate; (1)
whether the Owner-Defendants conducted construction and improvements without necessary
permits and without implementing reasonable safeguards; (m) whether Defendant neglected their
duties to make repairs; and (n) whether Defendants violated local and state law by failing to
provide for amenities and services required by local and state law, (0) whether Defendants actually
harassed any individual tenants; (p) whether Defendants actually retaliated against any individual
tenants for requesting repairs; (q) whether any individual tenants were subject to elder abuse; (0)
whether any individual tenants were subject to disability discrimination; (r) whether cach tenant
had a written lease, and the terms of said lease; and (s) whether, and to what extent, the individual
tenants were damaged.
These inquiries will involve the parties in “a veritable quagmire of tough factual questions
which can only be resolved by individual proof.” (See Brown v. Regents, 151 Cal.App.3d at 989,)
This inquiry will be impossible because Defendants may not keep detailed repair requests for
former tenants, and identifying a general policy used by Defendants as to all tenants will be
insurmountable. As phrased, Plaintiffs’ pleading is not limited to tenants who suffered their
particular harm — in fact, it is evident that even the named Plaintiffs did not suffer identical harm.
Moreover, only one of the two representative Plaintiffs are over the age of 65, and thus properly
4825-8221-8767.1
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO
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allege Elder Abuse, and it is unclear what disabilities they have, and how that could relate to
possible disabilities of potential class members.
4. Plaintiff is Not an Adequate Class Representative Because His Claims are
Not Typical of the Class
Plaintiff Castillo has lived in the subject property since 1995 and Plaintiff Williamson
since 1974, and thus they both have lengthy and unique relationships to the building ownership
and management. Plaintiffs do not limit his complaint to similar “long-term” tenants, but seek to
include those who have only been residents for 30 consecutive days or who have been evicted
before 30 days have elapsed. These tenants are less likely to have ever requested a repair, or been
threatened or harassed for requesting such repairs. Moreover, it is counterintuitive that the named
Plaintiffs would be residents of the building for 17 years and 38 years, respectively, when the
thrust of their complaint is that Defendants are routinely evicting long term tenants.
Plaintiffs have not alleged facts showing that their claims are “typical” of the class,
because there are no facts showing their claims are similar to others who have lived in the building
for less than 30 days. Moreover, only one of the two representative Plaintiffs are over the age of
65, and thus properly allege Elder Abuse, and it is unclear what disabilities they have, and how
that could relate to possible disabilities of potential class members.
3. The “Superiority of Class Action” Requirement is Not Met
For a viable class action, claimants must show that the class action method is superior to
other available methods for the fair and efficient adjudication of the controversy. (Dean Witter
Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d 758, 772-73.) Specifically, and in
particular relevance to the case at bar, in Dean Witter Reynolds, the court held that class
certification was not a superior method of adjudication when the action was based on unfair
competition statutes, namely under Business and Professions Code § 17200, et seq. For an unfair
competition claim to be suitable for class action “the representative plaintiff must show substantial
benefit will result both to the litigants and to the court.” (/bid.) A class action is not “superior”
where there are numerous and substantial questions affecting each class member’s right to recover,
(City af San Jose v. Superior Court (1974) 12 Cal.3d 447, 459.)
4825-8221-8767.1
8
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO
PLAINTIFFS’ FIRST AMENDED COMPLAINTLEWIS
BRISBOIS
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In the present matter, as discussed above, due to the nature of the underlying allegations
there is no basis for a finding that the class certification presents a “superior method” for
adjudication. A class certification is not a “superior method” because the court will be forced to
decipher and determine the terms of each lease, determine whether cach tenant had ever requested
repairs, whether the repairs were completed, whether Defendants retaliated at the tenant for
requesting repairs, whether they were harassed, and whether Defendants caused said tenants to
move out. (See e.g. Wilens v. TD Waterhouse Group, Inc. (2004) 120 Cal.App.4th 746, 753 (in an
action under the CLRA, although unconscionability of contract was a common issue, the
predominating issue was damages and therefore class action could not be maintained).)
Cc The Third Cause of Action Fails to State Facts Sufficient to Constitute a Cause
of Action for Breach of the Covenant of Quict Enjoyment Because there are
No Allegations of “Substantial” Action Intended to Deprive Plaintiff of His
Rental Unit
As is the case with other contracts, implied covenants in leases, such as the covenant of
quiet enjoyment, are recognized only in cases of “strict necessity.” (See 12 Witkin Sum. Cal. Law
Real Prop. § 566(1).) The implied covenant provides that “the tenant shall have quiet enjoyment
and possession of the premises ... [and has the] right to use and enjoy the premises for the purpose
contemplated by the tenancy.” (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588
[emphasis added]: see also Pierce v. Nash (1954) 126 Cal.App.2d 606, 614.)
To constitute a breach of the implied covenant of quiet enjoyment, the defendant’s conduct
must be intended to cause “substantial hardship” to the lessee. “Minor inconveniences and
annoyances are not actionable breaches of the implied covenant of quiet enjoyment. To be
actionable, the landlord’s act or omission must substantially interfere with a tenant’s right to use
and enjoy the premises for the purposes contemplated by the tenancy. (Andrews, 125 Cal.App.4th
at 589.)
Here, Plaintiffs complain of a failure to maintain the property. Plaintiff's allegations are
that Defendants failed to make repairs and address mold, negligent supervision of contractors and
property managers, failure to perform work without permits, failure to complete the construction
and renovation in a proper and timely manner, and the failure to address tenant complaints.
4825-8221-8767.1
9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO
PLAINTIFFS’ FIRST AMENDED COMPLAINTATIORNEWS ATLAW
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Plaintiff simultaneously complains that Defendants failed to make repairs or address tenant
complaints, while alleging that repairs were done, but not to Plaintiffs’ satisfaction. Plaintiffs
therefore tacitly admits that Defendants responded to and made attempts to fix the issues
indicated. This is not indicative of “a continuous course of conduct on the part of defendant,
intended and calculated to disturb and destroy plaintiff's peaceful possession of her dwelling
place.” (Tooke v. Allen (1948) 85 Cal.App.2d 280, 234 (landlord harassed tenant by turning off
heat, canceling telephone service, and removing personal possessions).) On the face of the
complaint, there is therefore, no facts pleaded that would demonstrate an intention to cause
Plaintiffs substantial hardship as is required by law. A demurrer to this cause of action should be
sustained.
D. The Tenth Cause of Action Fails to State Facts Sufficient to Constitute a Cause
of Action for Intentional Infliction of Emotional Distress Because there are No
Allegations of Extreme and Outrageous Conduct, or Severe Emotional
Distress
According to the Restatement (Second) of Torts, in order to state facts sufficient to
constitute the cause of action plaintiffs must allege the following basic elements: (1) outrageous
conduct (2) a severe emotional distress (3) acts intentionally or unreasonably, recognizing that his
or her actions are likely to cause mental distress and (4) causation. (Newby v. Alto Riviera
Apartments (1976) 60 Cal.App.3d 288, 297.)
In Newby, the plaintiff tenant organized other tenants in the landlords’ apartment complex
to oppose the landlords’ announced rent increase. The landlords and their agents verbally abused
and insulted the plaintiff, served her with a three-day notice to vacate, and then, when she refused
to do so, threatened, "If we have to, we will deal with this like they do down South."
Subsequently, the plaintiff was served with a 30-day eviction notice but continued to occupy her
apartment. Although no physical injury resulted from the landlords' alleged abuse, the plaintiff
was able to prove that the landlords’ conduct was extreme and outrageous. The court stated that
there was substantial evidence that the landlords’ behavior was outrageous in that they acted
knowingly and unreasonably with the intention of inflicting mental distress, and abused the special
4825-8221-8767.1
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO
PLAINTIFFS’ FIRST AMENDED COMPLAINTLEWIS
BRISBOIS
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relationship between landlords and tenants was based upon a continued course of affirmative and
“despicable” actions.
This is not the case, here, where based on the FAC, Plaintiffs alleges facts, if true, which
show at worst a lack of the resolution of a maintenance issue which was, by Plaintiffs’ own
admission, addressed by Defendants. Nowhere in the FAC, do Plaintiffs recite outrageous conduct
such as complained of in Newby. For example, Paragraph 104 of the Plaintiff's complaint
concludes that Defendants’ conduct caused “extreme mental distress” and that it “was knowing
and willful.” The complaint lacks the requisite facts to support “outrageous conduct” under the
law.
Plaintiff must also plead facts that indicate severe emotional distress. Generally, no
recovery can be had for intentional infliction of emotional distress unless that distress is severe.
(Aweeka v. Bonds (1971) 20 Cal.App.3d 278.) In that case, the tenant was served with a notice of
a substantial rent increase after threatening to repair and deduct the costs of repair pursuant to
statute. The court held that because the landlord knew the tenant could not pay the amount of rent
requested in the notice, the tenant was effectively evicted, and this allegation could substantiate a
claim for intentional infliction of emotional distress.
"Severe emotional distress" has been defined as emotional distress of such substantial
quantity or enduring quality that no reasonable man in a civilized society should be expected to
endure it. It may consist of any highly unpleasant mental reaction such as fright, grief, shame,
humiliation, embarrassment, anger, chagrin, disappointment or worry. Even these mitigated
emotional reactions are absent from Plaintiffs’ complaint. Thus, the complaint fails to state facts
sufficient to constitute a cause of action for intentional infliction of emotional distress and the
demurrer should be sustained. (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d
531.)
The Court serves as the gatekeeper to determine whether the allegations in the complaint
are sufficiently outrageous to support a claim for intentional infliction of emotional distress. The
court in Godfrey v. Steinpress stated that:
Mf
4825-8221-8767.1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO
PLAINTIFFS’ FIRST AMENDED COMPLAINTeC Ge Se DH HH me He Nm
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Regarding emotional distress, the trial court initially determines
whether a defendant's conduct may reasonably be regarded as so
extreme and outrageous as to permit recovery. Where reasonable
men can differ, the jury determines whether the conduct has been
extreme and outrageous to result in liability, Otherwise stated, the
court_determines_ whether severe emotional distress can be
found; the jury determines whether on the evidence it has, in fact,
existed.
(Godfrey v. Steinpress (1982) 128 Cal.App.3d 154, 173 (emphasis added).}
Accordingly, many appellate decisions have affirmed orders sustaining demurrers to
claims for intentional infliction of emotional distress where the allegations in the complaint are
insufficient to satisfy the high threshold of outrageousness required for this claim. (See Davidson
v. City of Westminster (1982) 32 Cal.3d 197, 209; Cochran y. Cochran (1998) 65 Cal.App.4th
488, 495-96; Burkle v. Burkle (2006) 144 Cal.App.4th 387, 397-98; Coleman v. Republic
Indemnity Ins. Co. (2005) 132 Cal.App.4th 403, 416-17; Ankeny, supra, 88 Cal.App.3d 531 at
536-37; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618.) Defendants
request that the court function here as the gatekeeper to these insufficient claims, and sustain the
demurer as to this cause of action.
IV. CONCLUSION
The allegations in Plaintiffs’ FAC do not support claims for Breach of Warranty of Quiet
Enjoyment or Intentional Infliction of Emotional Distress, and Plaintiffs will be unable to certify a
class action. Therefore, Defendant respectfully requests that this Court sustain its Demurrer,
without leave to amend, and for such other and further relief as this Court deems just and proper.
In the alternative, Defendant requests that the Court consider each cause of action
individually, and sustain Defendants’ Demurrer on an individual basis.
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4825-8221-8767.1 12
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO
PLAINTIFFS’ FIRST AMENDED COMPLAINTLEWIS
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DATED: April 12, 2012 LEWIS BRISBOIS BISGAARD & SMITH LLP
o- WUNCOUL
HELBN LEE GRE. 1
NICOLE L. rome
Defendants 1090 EDDY ST, LLC; ADAM
KOMOSA, individually and dba JASON ADAMS
MANAGEMENT CO.; RALPH DAYAN and
TOM SWIERK (erroneously named and served
herein as TOM SWIERT)
4825-8221-8767.1 13
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO
PLAINTIFFS’ FIRST AMENDED COMPLAINTLEWIS
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File No, 25943.1270 CALIFORNIA STATE COURT PROOF OF SERVICE
Sal Castillo, et al. v. Ralph Dayan, et al.
San Francisco County Superior Court Case No. CGC-11-516078
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
At the time of service, I was over 18 years of age and not a party to the action. My
business address is One Sansome Street, Suite 1400, San Francisco, CA 94104.
On April 12, 2012, I served the following document:
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS?’
DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
I served the document on the following persons at the following addresses (including fax
numbers and email addresses, if applicable):
Mark Hooshmand, Esq. drew Castricone, Esq.
Hooshmand Law Group irsten McNelly Bibbes, Esq.
22 Battery Street, Suite 610 ordon & Rees th
San Francisco, CA 94111 275 Battery Street, 20"' Floor
Tel: 415.318.5709 San Francisco, CA 94111
. ce [T: 415.986.5900; F: 415.986.8054
Fax: 415.376.5897 Kirsten Direct: 415.875.3137
Email: mark@lawmmh.com (Email: acastricone@gordonrees.com;
Attorneys for Plaintiff Sal Castillo kbibbes@gordonrees.com
o-counsel for Defendants 1090 EDDY ST,
LLC, ADAM KOMOSA, individually and dba
JASON ADAMS MANAGEMENT CO.,
RALPH DAYAN, and TOM SWIERK
The document was served by the following means:
& (BY U.S. MAIL) I enclosed the document in a sealed envelope or package addressed to the
persons at the addresses listed above placed the envelope or package for collection and mailing,
following our ordinary business practices. I am readily familiar with the firm’s practice for
collection and processing correspondence for mailing. Under that practice, on the same day that
correspondence is placed for collection and mailing, it is deposited in the ordinary course of
business with the U.S. Postal Service, in a sealed envelope of package with the postage fully
prepaid.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. \
Dated: April 12, 2012 xbrwida eh
Amanda Hampton
4825-8221-8767.1
PROOF OF SERVICE
Preview
IDO SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Apr-12-2012 3:15 pm Case Number: CGC-11-516078 Filing Date: Apr-12-2012 3:13 Filed by: Juke Box: 001 Image: 03573920 MEMORANDUM OF POINTS AND AUTHORITIES SAL CASTILLO VS. RALPH DAYAN 001003573920 Instructions: Please place this sheet on top of the document to be scanned.LEWIS BRISBOIS eC 2B TD HF YD NH yb NY YP NBN NON De Re ee eet eran mn Fs BN = SO we INAH BF HN Ee S LEWIS BRISBOIS BISGAARD & SMITH LLP HELEN LEE GREENBERG, SB# 230682 E-Mail: greenberg@|bbslaw.com NICOLE L. JONES, SB# 247152 E-Mail: jonesn@|bbslaw.com One Sansome Street, Suite 1400 San Francisco, California 94104 Telephone: 415.362.2580 Facsimile: 415.434.0882 GORDON & REES, LLP ANDREW CASTRICONE, SB # 154607 E-Mail: acastricone@gordonrees.com KIRSTEN MCNELLY BIBBES, SB # 276308 E-Mail: kbibbes@gordonrees.com 275 Battery Street, Suite 2000 San Francisco, California 94111 Telephone: 415.986.5900 Facsimile: 415.986.8054 Attorneys for Defendants 1090 EDDY ST, LLC; ADAM KOMOSA, individually and dba JASON ADAMS MANAGEMENT CO.; RALPH DAYAN and TOM SWIERK (erroneously named and served herein as TOM SWIERT) SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO SAL CASTILLO and NANCY WILLIAMSON, individually and on behalf of all similarly situated individuals, Plaintiffs, vs. 1090 EDDY ST, LLC, ADAM KOMOSA,, individually and dba JASON ADAMS MANAGEMENT CO., RALPH DAYAN, TOM SWIERT and DOES 1 to 100, Defendants. 4825-8221-8767.1 CASE NO. CGC-11516078 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT Judge: Hon. Harold E. Kahn Date: March 23, 2012 Time: 9:30 a.m. Crtrm.: 302 Action Filed: November 22, 2012 Trial Date: None Set MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTLEWIS BRISBOIS _ oS ND HW ek |W NY TABLE OF CONTENTS L INTRODUCTION ...0...cecceceteeeeeeeteee I ALLEGATIONS OF PLAINTIFF'S COMPLAINT .........cccccsscssscsssccusesssssesvenenseenens 1 THT, = ARGUMENT... ccccsssseecsssessssenscsessecenssnssessavecesssasessuneccessecesssuessssssssessevecsssescessanesssonveeseees 4 A. Legal Authority for Demurren oo... ecccssssssscssseecesssecsssssceassuecsesssessessssssesseesse 4 B. Plaintiffs’ Allegations Demonstrate that No Class Can Be Certified.................. 5 1. Tintroduction ......sseseccessecssessssessssecsseeeesesenvesssseesasosnsessueesssesanessucesneessnecessscsses 5 2. Plaintiffs’ Class Action Allegations May Be Challenged By Demurrer and / or By Motion to Strike... esssssesssesssseccssessseeessessseeesnesssee 5 3. Plaintiffs Have Not Alleged Facts Establishing Entitlement to Proceed as Class Representative or to Maintain a Class Action.........cee0 5 4. Plaintiff is Not an Adequate Class Representative Because His Claims are Not Typical of the Class ......c.ccesscssssssssseessesssessssesseseessesseeseeseesses 8 5. The “Superiority of Class Action” Requirement is Not Met.. Cc The Third Cause of Action Fails to State Facts Sufficient to Constitute a Cause of Action for Breach of the Covenant of Quiet Enjoyment Because there are No Allegations of “Substantial” Action Intended to Deprive Plaintiff of His Rental Unit .....0.........ccccssssssessssessesesssseessecssascnssecesesesneces 9 D. The Tenth Cause of Action Fails to State Facts Sufficient to Constitute a Cause of Action for Intentional Infliction of Emotional Distress Because there are No Allegations of Extreme and Outrageous Conduct, or Severe Emotional Distress ...........cccsccccscssesssesessessseesseecseecsnesesneesssnsssvecensesnss 10 TV. — CONCLUSION 0... cesssecssscescseessrsssseessueesssssneesarecnusecsasennesssnssaseesueassuesseccsnansssenssseessaesase 12 4825-8221-8767.1 i TABLE OF CONTENTS_ TABLE OF AUTHORITIES Page CASES Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578 Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal. App.3d S31 v.csecssssecssssessesnsesessssesssserscsssscessnsccesseesssvessssavsesssnesecesseseessase 11, 12 Aweeka v. Bonds (1971) 20 Cal. App.3d 278 o..ccsescsseecssssesesssseecesnesssneessssecsesniscassseeasseceersseemessseessaeeesssseies LL Barsurco v. 21st Century Ins. Co. (2003) 108 Cal.App.4th 110 .cecscsccessssessssecstessscscnsessssesssessnsessecssveessesessavesseessssessaneessvensevecsse 6 ec emt AH BR WN Blank v. Kirwan (1985) 39 Cal.3d 311 _ > Brown v. Regents of the University of California (1984) 151 Cal.App.3d 982 —_— nom Burkle v. Burkle (2006) 144 Cal.App.4th 387 _ aw Canon U.S.A., Inc. v. Superior Court (1998) 68 Cal App.4th DT vcvccscsssssssssssscsessessessessssssssassesusecsssevsusssssrsessesesssessecseeseessenussassasesss 5 — an Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal App.3d 137] ....ecsesssssesssssesssssssesssserecsessesssusesssssecegsorsesesneeeesueseersnueessseeressee 4 . an City of San Jose v. Superior Court (1974) 12 Cal.3d 447 vocccccssessssessssessssecsseessesssneessessnsessaresneeesnusssneessessuesssseessesensseeseesssseeeavense 8 —_ oo sl Cochran v. Cochran (1998) 65 Cal.App.4th 488 .... = o Coleman v. Republic Indemnity Ins. Co. (2005) 132 Cal. App.4th 403 .reccsssssesssseesssseessasessessasecssseeecssseesssnesssssusessueeecssaeeessnnecsasnnesessas 12 wy oy = S&S Davidson vy. City of Westminster (1982) 32 Cal.3d 197 ooscesccscssscsccssssescssesseecsssstsnusssssseassesseuasssssstvenseevansessusnesteuaseeecuset 12 Ne N Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal. App.3d 758 oo. escsecsssessuescssessvesssscsnsessseessscsssessereessecssseeessesessetsesessseeesee 8 N oN a w& Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590 ... vy wn Gilbert v. State of California (1990) 218 Cal. App.3d 234 vvecscsssseessrsessssssneesssseesssarecennsrecsnaseesnussesssavsessneessssuuessssunestesses 4 Nn oN aA Godfrey v. Sieinpress (1982) 128 Cal App.3d 154 wccssssecssecsssseessssecccenesssneessnveecsssecesstsscsssuesessessecessnnessarsnes 11,12 » oO LEWIS BRISBOIS BISGAARD 4825-8221-8767.1 i sae TABLE OF AUTHORITIESLEWIS BRISBOIS BISGAARD & SMITH UP ATTORNENS a LAW Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1104.0... cesssssescsssssecssssesesssssessssscsssseccssseessssesssessseeessnsseessuusesssavecssese 5 Newby v, Alto Riviera Apartments (1976) 60 Cal. App.3d 288 voces ccssescsssssneseteessneeesessstssssessiseeseessuuenecersessesneessesees 10, 11 Newell v. State Farm (2004) 118 Cal. App.4th 1094 oo. cscccessseessecssnsssscsssssseseessessessssssssnsnssessersnssneveseessensenees 6 Pierce v, Nash (1954) 126 Cal.App.2d 606 .. Serrano y. Priest (1971) 5 Cal 3d 584 ooo, ececcsasesssssecsssssssssnseccesseeeessesessnuesesssssensasessansessssseeecsnseccussaserssavteseens 4 Tooke v. Allen (1948) 85 Cal App.2d 280 v..ceeccscssescssesssnessseessessnuecssessseesnesssvesssuscsseesssesssvessseccusesesseeeenveese 10 Wilens v. TD Waterhouse Group, Inc. (2004) 120 Cal. App.4th 746 ....ccccssssssescsssesssecssesnessnesrnsecsnsseusesssuessussssneesseceesvecsseseesnersseeess 9 STATUTES Business and Professions Code §17200........cessssscsssessssesvessecsscsseessesneesscssecseanscsssssscsseecausereesreeseenvers 8 California Code of Civil Procedure §382 .0......sccsssssseessssesssssssssesvecssvessussessesssssaseesseesesseetsssenssessasses 5 California Code of Civil Procedure §425.10 o...cecceessssesssesseessesssessessesssssscsssessesesseasecssresaveeneearseneenseess 4 California Code of Civil Procedure $430.10 ...scssssssessusessssssnessssessseessscssseessesesssesesvessaseenssesaseessneees 4 California Code of Civil Procedure §430.30(a).... OTHER AUTHORITIES 12 Witkin Summary of California Law Real Propperty §566(1).....c..ccccceesessssssscesssesssecsecsecssessucsrescecssessecseessessesessesapecsessessssssaneaseaveess 9 4825-821-8767.1 iii TABLE OF AUTHORITIESLEWIS BRISBOIS BISGAARD &SMIHUP ATIORNEW ATLA eC 6 WN DA HM eR YW RY yb RNR yP PB BP N NM NN NY eB eB ee ee ee ee eo 1a A MW BW NH Be SE OY DH HN ek YH NY SE S 1090 EDDY ST, LLC; ADAM KOMOSA, individually and dba JASON ADAMS MANAGEMENT CO.; RALPH DAYAN and TOM SWIERK (erroneously named and served herein as TOM SWIERT) (hereinafter referred to as “Defendants”) respectfully submit the following Demurrer to Plaintiffs’ First Amended Complaint (“FAC”). Defendant’s Demurrer should be sustained, without leave to amend. 1 INTRODUCTION This litigation concerns Plaintiffs’ tenancies at 1090 Eddy Street in San Francisco, and allegations of “inconvenience, habitability issues, statutory damages, annoyance, and discomfort” by Defendants (owner and managers of the building). Plaintiff alleges thirteen Causes of Action against Defendants: (1) Breach of Implied Warranty of Habitability; (2) Negligence; (3) Breach of Warranty of Quiet Enjoyment; (4) Unfair Business Practices; (5) Constructive Eviction; (6) Violation of San Francisco Rent Control Ordinance; (7) Negligent Infliction of Emotional Distress; (8) Intentional Infliction of Emotional Distress; (9) Retaliatory Eviction; (10) Elder Abuse; (11) Disability Discrimination; (12) Nuisance; and (13) Violation of Civil Code 1942.4. Plaintiffs have filed this matter as a “Class Action” in San Francisco County Superior Court against Defendants. This Class Action has not been certified. Upon information and belief, no notices to the potential class members have been mailed. Plaintiffs have alleged in their FAC and in their prayer for relief that they are entitled to, among other things, punitive damages. However, Plaintiff's claims for punitive damages are improper, and are not supported by the allegations contained within his Complaint. Despite the fact that California law requires that a claim for punitive damages be based on specific factual allegations of malice, oppression or fraud, Plaintiff has completely failed to plead facts supporting the basis for recovery of punitive damages. Il. ALLEGATIONS OF PLAINTIFE’S COMPLAINT Plaintiff Castillo filed his complaint in this action on November 22, 2011. Following the filing of a Demurter and Motion to Strike by Defendants, Plaintiffs filed the instant First Amended Complaint (“FAC”). The allegations of the Complaint may be fairly summarized as follows for purposes of this Motion to Strike: 4825-8221-8767.1 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTLEWIS BRISBOIS BISGAARD &SMIHUP ATONE S ATLAW Se Oe DD HO me BR Ne BP NR BP BP NE RB NON Dm ea ie oo 1 Dn mW BY NR S&F S 6 ON KH HW & BW NY SF S Plaintiff Castillo moved in his current apartment at 1090 Eddy Street in 1995, pursuant to a written lease, and Plaintiff Williamson moved into her apartment in 1974, also pursuant to a written lease. There are approximately 48 units in the building, and many of the units have had multiple residents. (FAC, §12.) Plaintiffs allege that as to them, and the putative class of residents, mold exists throughout the building, including in common areas. (FAC, {[18(a).) Plaintiffs allege that Defendants had a general policy of refusing to make repairs, harassing tenants, retaliating against tenants who requested repairs, refusing to follow the law as a pattern of causing longer term residents to move out. (FAC, 118(b-c).) Plaintiffs allege that Defendants’ motive for attempting to recover possession of the premises was impermissible under the San Francisco Residential Rent Stabilization and Arbitration Ordinance, and that they violated their duty of reasonable care in the ownership and management of the premises by failing to make repairs, delaying in making repairs, and negligently performing repairs. (FAC, §18(f-h).) Plaintiffs further allege that Defendants acted with intent to cause living conditions to be so intolerable that residents would be forced to vacate, and that construction and improvements were done without permits or safeguards. (FAC, 1 8(i-j).) Plaintiffs allege that a Class Action is proper on behalf of their FAC and is composed of any persons who have been in occupancy at the premises for thirty days or more, or were asked to leave before thirty days had elapsed from a four year period prior to November 22, 2011. (FAC, 4112, 15.) Plaintiffs are unable to state the precise number of potential members of the class, who are so numerous that joinder of all would be impracticable. (FAC, 917.) Plaintiffs allege the common questions of law and fact that predominate as to all the class members include, inter alia: (a) whether mold exists throughout the building, including in the common areas; (b) whether the Owners and Agents have a general policy of refusing to make repairs; (c) whether the Owners and Agents have a general policy of harassing tenants; (d) whether the Owners and Agents have a general policy of retaliating against tenants who request repairs and otherwise asserted their rights directly or through notification to governmental agencies; (c) whether the Owners and Agents have a general policy of refusing to follow the law as a pattern of causing longer term tenants to move out; (f) whether Defendants refused to perform needed repairs 4825-8221-8767,1 2. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTLEWIS BRISBOIS BISGAARD & SMM UP ATTORNEYS ALLAH Ce eo UNA Hh ke BW Ne »y NM MY NY YB NY NHN Ny Be oe ee ee ee oe eo yan nM FF BN BF SBD we UW DA KH B® YH YW S&S FS throughout the building as part of a common plan in order to ensure regular turnover at the property; (g) whether the Owner and Agents took the actions alleged in the complaint, including construction and renovation in complete disregard of the effect on the tenants in an attempt to force them to leave the premises; (h) whether the Owner-Defendants’ dominant motive for attempting to recover possession of the premises was permissible under section 37.9(a) of the San Francisco Residential Rent Stabilization and Arbitration Ordinance; (i) whether the Owner and their contractors instituted a campaign that violated Proposition M and section 37.10B(a), which provides that “No landlord, and no agent, contractor, subcontractor or employee of the landlord shall do any of the following in bad faith or with ulterior motive or without honest intent: (1) interrupt, terminate or fail to provide housing services required by contract or by State, County or local housing, health or safety laws; (2) fail to perform repairs and maintenance required by contract or by State, County or local housing, health or safety laws; (4) abuse the landlord's right of access into a rental housing unit as that right is provided by law; (5) influence or attempt to influence a tenant to vacate a rental housing unit through fraud, intimidation or coercion; (10) interfere with a tenants right to quiet use and enjoyment of a rental housing unit as that right is defined by California law; (11) refuse to accept or acknowledge receipt of a tenants lawful rent payment; or (13) interfere with a tenant’s right to privacy [sic]; (j) whether the Owner-Defendants violated their duty to exercise reasonable care in the ownership, operation, management, and control of the subject premises by refusing to honor their obligations including the failure to make repairs, delays in making repairs, and negligently performing repairs; (k) whether the Owner- Defendants acted with specific intent to cause Plaintiffs’ living conditions to become so intolerable that they would be forced to vacate; (1) whether the Owner-Defendants conducted construction and improvements without necessary permits and without implementing reasonable safeguards; (m) whether Defendant neglected their duties to make repairs; and (n) whether Defendants violated local and state law by failing to provide for amenities and services required by local and state law. (FAC, § 18.) Plaintiffs’ Prayer for Relief seeks: (1) general and special damages in the minimum amount of $5,000,000; punitive damages as to the First, Third, Fifth, Sixth, Seventh, Eighth, 4825-8221-8767.1 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT.LEWIS BRISBOIS BISGAARD & SMTP ATOR ALLA ee SD KH AW & HH NR em »y Re YP YY N NR NN YY BF Be Be eB oe Se Se oe — oa Am &€ BRA FS Ge TAA EEK ES Ninth, Tenth, and Eleventh causes of action; (3) attorneys fees and treble damages as to the Sixth and Thirteenth causes of action; (4) attorney’s fees pursuant to contract and statute as to all causes of action; (5) costs of suit herein incurred; and (6) for prejudgment interest from the date of the filing of the complaint, or such earlier date as damages can be assessed with reasonable certainty. Il. ARGUMENT A. Legal Authority for Demurrer Code of Civil Procedure section 430.30, subdivision (a), states: When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the Court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading. Code of Civil Procedure section 430,10 states, in relevant parts: The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided by section 430.30 on any one or more of the following grounds: (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible. In reviewing a demurrer, the Court considers admitted the truth of all material facts properly pleaded, which do not include contentions, deductions, or conclusions of facts or law. Blank v. Kirwan (1985) 39 Cal.3d 311, 318, (citing Serrano v. Priest (1971) 5 Cal.3d 584,591.) The Code of Civil Procedure requires a complaint to contain a statement of fact, pled in concise and ordinarily language, constituting a cause of action. (Cal. Code Civ. Proc. § 425.10.) Itis both improper and insufficient, therefore, for a plaintiff to simply plead the evidence by which he hopes to prove such ultimate facts. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390.) If the allegations on the face of the complaint do not establish essential elements of, and fail to state, a cause of action, the plaintiff's claim is defective as a matter of law, and a demurrer thereto must be sustained. (Gilbert v. State of California (1990) 218 Cal.App.3d 234, 240-41.) 4825-8221-8767.1 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTLEWIS BRISBOIS BISGAARD &SMIHUP -ATIORNES A LAW eC Oe DW RH Hh RB WY YP N YP RP BN NON Dm eee ee Oe oe Oe Se 2A A HN FB WwW MY BF SBE Ke Aa DA HM ke YY SS S B. Plaintiffs’ Allegations Demonstrate that No Class Can Be Certified 1. Introduction In their complaint, Plaintiffs “bring this action individually and on behalf and all other persons similarly situated [... as] any persons who have been in occupancy at the premises for thirty or more consecutive days during [the four years prior to the filing of the Complaint], or who were asked to leave before 30 days elapsed.” This “class” cannot be certified and all class action allegations should be dismissed and / or stricken from the complaint for the reasons set forth below. 2. Plaintiffs’ Class Action Allegations May Be Challenged By Demurrer and / or By Motion to Strike Class actions are appropriate only in limited circumstances. “[Wyhere the invalidity of the class allegations is revealed on the face of the complaint and/or by matters subject to judicial notice, the class issue may be properly disposed of by demurrer or motion to strike... In such circumstances, there is no need to incur the expense of an evidentiary hearing or class-related discovery.” (Canon U.S.A, Inc. v. Superior Court (1998) 68 Cal.App.4th 1, 5.) 3. Plaintiffs Have Not Alleged Facts Establishing Entitlement to Proceed as Class Representative or to Maintain a Class Action Class action treatment is proper only “when the question is one of common or general interest, of many persons, or when the parties are numerous, and it is impractical to bring them all before the Court.” (Cal. Code Civ. Proc. § 382.) The putative class representative must plead and later prove “both an ascertainable class and a well-defined community of interest among the class members.’ [citation omitted]” Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1104.) Thus, Plaintiffs must allege ultimate facts establishing that: (1) common questions of law and fact predominate; (2) their claims are typical of those held by members of the class; and, (3) they adequately represents the interests of the class members. (Id) Class treatment is inappropriate when, as here, each class member, in order to vindicate his or her rights under the facts alleged, would be required to litigate numerous and substantial questions to establish his or her individual right to recover. “If the ability of each member of the 4825-8221-8767.1 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTLEWIS BRISBOIS a Dn UW kF BH NW class to recover clearly depends on a separate set of facts applicable only to him, then all of the policy considerations which justify class actions equally compel the dismissal of such inappropriate actions at the pleading stage.” (Brown v. Regents of the University of California (1984) 151 Cal.App.3d 982, 989, Newell v. State Farm (2004) 118 Cal.App.4th 1094, 1102-04; Barsurco v. 21st Century Ins. Co. (2003) 108 Cal.App.4th 110, 118-19.) Here, it is clear that there can be no “typical” class. While it can be easily ascertained who has lived at the subject premises for the length of time during the subject period, every tenant has a different living situation. Plaintiff Castillo’s complaints are very specific, stemming from his requests for repairs, alleged faulty or illegal construction, retaliation, and harassment. These types of issues are unique to each tenant, which would also vary depending on the length of tenancy. Thus, in the case presently before the court, each purported member of the “class” will be required to litigate individually numerous and substantial questions, including, but not limited to: (a) whether mold exists throughout the building, including in the common areas; (b) whether the Owners and Agents have a general policy of refusing to make repairs; (c) whether the Owners and Agents have a general policy of harassing tenants; (d) whether the Owners and Agents have a general policy of retaliating against tenants who request repairs and otherwise asserted their rights directly or through notification to governmental agencies; (e) whether the Owners and Agents have a general policy of refusing to follow the law as a pattern of causing longer term tenants to move out; (f) whether Defendants refused to perform needed repairs throughout the building as part of a common plan in order to ensure regular turnover at the property; (g) whether the Owner and Agents took the actions alleged in the complaint, including construction and renovation in complete disregard of the effect on the tenants in an attempt to force them to leave the premises; (h) whether the Owner-Defendants’ dominant motive for attempting to recover possession of the premises was permissible under section 37.9(a) of the San Francisco Residential Rent Stabilization and Arbitration Ordinance; (i) whether the Owner and their contractors instituted a campaign that violated Proposition M and section 37.10B(a), which provides that “No landlord, and no agent, contractor, subcontractor or employee of the landlord shall do any of the following in bad faith or with ulterior motive or without honest intent: (1) interrupt, terminate or fail to provide housing 4825-8221-8767.1 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTCet ADA nH ke Bw KY yb NY YB YB N NR NN Be Be Be Be ee ee ee xe aD we & wW NHN BF SO eB IU DAH BY He S services required by contract or by State, County or local housing, health or safety laws; (2) fail to perform repairs and maintenance required by contract or by State, County or local housing, health or safety laws; (4) abuse the landlord’s right of access into a rental housing unit as that right is provided by law; (5) influence or attempt to influence a tenant to vacate a rental housing unit through fraud, intimidation or coercion; (10) interfere with a tenants right to quiet use and enjoyment of a rental housing unit as that right is defined by California law; (11) refuse to accept or acknowledge receipt of a tenants lawful rent payment; or (13) interfere with a tenant’s right to privacy [sic]; (j) whether the Owner-Defendants violated their duty to exercise reasonable care in the ownership, operation, management, and control of the subject premises by refusing to honor their obligations including the failure to make repairs, delays in making repairs, and negligently performing repairs; (k) whether the Owner-Defendants acted with specific intent to cause Plaintiffs’ living conditions to become so intolerable that they would be forced to vacate; (1) whether the Owner-Defendants conducted construction and improvements without necessary permits and without implementing reasonable safeguards; (m) whether Defendant neglected their duties to make repairs; and (n) whether Defendants violated local and state law by failing to provide for amenities and services required by local and state law, (0) whether Defendants actually harassed any individual tenants; (p) whether Defendants actually retaliated against any individual tenants for requesting repairs; (q) whether any individual tenants were subject to elder abuse; (0) whether any individual tenants were subject to disability discrimination; (r) whether cach tenant had a written lease, and the terms of said lease; and (s) whether, and to what extent, the individual tenants were damaged. These inquiries will involve the parties in “a veritable quagmire of tough factual questions which can only be resolved by individual proof.” (See Brown v. Regents, 151 Cal.App.3d at 989,) This inquiry will be impossible because Defendants may not keep detailed repair requests for former tenants, and identifying a general policy used by Defendants as to all tenants will be insurmountable. As phrased, Plaintiffs’ pleading is not limited to tenants who suffered their particular harm — in fact, it is evident that even the named Plaintiffs did not suffer identical harm. Moreover, only one of the two representative Plaintiffs are over the age of 65, and thus properly 4825-8221-8767.1 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTLEWIS BRISBOIS BISGAARD &SVIHUP -ARORNEW ATLA co Oe WKN A Rk BH NR So N YP NO NM NO NR Om me 2 ya nm & Bw YN S&S SC DAA A BDH BS allege Elder Abuse, and it is unclear what disabilities they have, and how that could relate to possible disabilities of potential class members. 4. Plaintiff is Not an Adequate Class Representative Because His Claims are Not Typical of the Class Plaintiff Castillo has lived in the subject property since 1995 and Plaintiff Williamson since 1974, and thus they both have lengthy and unique relationships to the building ownership and management. Plaintiffs do not limit his complaint to similar “long-term” tenants, but seek to include those who have only been residents for 30 consecutive days or who have been evicted before 30 days have elapsed. These tenants are less likely to have ever requested a repair, or been threatened or harassed for requesting such repairs. Moreover, it is counterintuitive that the named Plaintiffs would be residents of the building for 17 years and 38 years, respectively, when the thrust of their complaint is that Defendants are routinely evicting long term tenants. Plaintiffs have not alleged facts showing that their claims are “typical” of the class, because there are no facts showing their claims are similar to others who have lived in the building for less than 30 days. Moreover, only one of the two representative Plaintiffs are over the age of 65, and thus properly allege Elder Abuse, and it is unclear what disabilities they have, and how that could relate to possible disabilities of potential class members. 3. The “Superiority of Class Action” Requirement is Not Met For a viable class action, claimants must show that the class action method is superior to other available methods for the fair and efficient adjudication of the controversy. (Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d 758, 772-73.) Specifically, and in particular relevance to the case at bar, in Dean Witter Reynolds, the court held that class certification was not a superior method of adjudication when the action was based on unfair competition statutes, namely under Business and Professions Code § 17200, et seq. For an unfair competition claim to be suitable for class action “the representative plaintiff must show substantial benefit will result both to the litigants and to the court.” (/bid.) A class action is not “superior” where there are numerous and substantial questions affecting each class member’s right to recover, (City af San Jose v. Superior Court (1974) 12 Cal.3d 447, 459.) 4825-8221-8767.1 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTLEWIS BRISBOIS BISGAARD SMTP TORRES AT AW ec eI DAD He WN BP NR RP Pe Be NR RR maka SeXy A MW Bw NY B&B SE BO IU AHA PR AK ES In the present matter, as discussed above, due to the nature of the underlying allegations there is no basis for a finding that the class certification presents a “superior method” for adjudication. A class certification is not a “superior method” because the court will be forced to decipher and determine the terms of each lease, determine whether cach tenant had ever requested repairs, whether the repairs were completed, whether Defendants retaliated at the tenant for requesting repairs, whether they were harassed, and whether Defendants caused said tenants to move out. (See e.g. Wilens v. TD Waterhouse Group, Inc. (2004) 120 Cal.App.4th 746, 753 (in an action under the CLRA, although unconscionability of contract was a common issue, the predominating issue was damages and therefore class action could not be maintained).) Cc The Third Cause of Action Fails to State Facts Sufficient to Constitute a Cause of Action for Breach of the Covenant of Quict Enjoyment Because there are No Allegations of “Substantial” Action Intended to Deprive Plaintiff of His Rental Unit As is the case with other contracts, implied covenants in leases, such as the covenant of quiet enjoyment, are recognized only in cases of “strict necessity.” (See 12 Witkin Sum. Cal. Law Real Prop. § 566(1).) The implied covenant provides that “the tenant shall have quiet enjoyment and possession of the premises ... [and has the] right to use and enjoy the premises for the purpose contemplated by the tenancy.” (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588 [emphasis added]: see also Pierce v. Nash (1954) 126 Cal.App.2d 606, 614.) To constitute a breach of the implied covenant of quiet enjoyment, the defendant’s conduct must be intended to cause “substantial hardship” to the lessee. “Minor inconveniences and annoyances are not actionable breaches of the implied covenant of quiet enjoyment. To be actionable, the landlord’s act or omission must substantially interfere with a tenant’s right to use and enjoy the premises for the purposes contemplated by the tenancy. (Andrews, 125 Cal.App.4th at 589.) Here, Plaintiffs complain of a failure to maintain the property. Plaintiff's allegations are that Defendants failed to make repairs and address mold, negligent supervision of contractors and property managers, failure to perform work without permits, failure to complete the construction and renovation in a proper and timely manner, and the failure to address tenant complaints. 4825-8221-8767.1 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTATIORNEWS ATLAW eC 6 a KH Nh Bh BW De — o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff simultaneously complains that Defendants failed to make repairs or address tenant complaints, while alleging that repairs were done, but not to Plaintiffs’ satisfaction. Plaintiffs therefore tacitly admits that Defendants responded to and made attempts to fix the issues indicated. This is not indicative of “a continuous course of conduct on the part of defendant, intended and calculated to disturb and destroy plaintiff's peaceful possession of her dwelling place.” (Tooke v. Allen (1948) 85 Cal.App.2d 280, 234 (landlord harassed tenant by turning off heat, canceling telephone service, and removing personal possessions).) On the face of the complaint, there is therefore, no facts pleaded that would demonstrate an intention to cause Plaintiffs substantial hardship as is required by law. A demurrer to this cause of action should be sustained. D. The Tenth Cause of Action Fails to State Facts Sufficient to Constitute a Cause of Action for Intentional Infliction of Emotional Distress Because there are No Allegations of Extreme and Outrageous Conduct, or Severe Emotional Distress According to the Restatement (Second) of Torts, in order to state facts sufficient to constitute the cause of action plaintiffs must allege the following basic elements: (1) outrageous conduct (2) a severe emotional distress (3) acts intentionally or unreasonably, recognizing that his or her actions are likely to cause mental distress and (4) causation. (Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 297.) In Newby, the plaintiff tenant organized other tenants in the landlords’ apartment complex to oppose the landlords’ announced rent increase. The landlords and their agents verbally abused and insulted the plaintiff, served her with a three-day notice to vacate, and then, when she refused to do so, threatened, "If we have to, we will deal with this like they do down South." Subsequently, the plaintiff was served with a 30-day eviction notice but continued to occupy her apartment. Although no physical injury resulted from the landlords' alleged abuse, the plaintiff was able to prove that the landlords’ conduct was extreme and outrageous. The court stated that there was substantial evidence that the landlords’ behavior was outrageous in that they acted knowingly and unreasonably with the intention of inflicting mental distress, and abused the special 4825-8221-8767.1 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTLEWIS BRISBOIS ce ta AH FE WR Mm Sb NHN BP BP RB NN Dm mea eS 4A Dw Fs eH NHN S&S SC WMO TD AH BRB HB RP FS STS relationship between landlords and tenants was based upon a continued course of affirmative and “despicable” actions. This is not the case, here, where based on the FAC, Plaintiffs alleges facts, if true, which show at worst a lack of the resolution of a maintenance issue which was, by Plaintiffs’ own admission, addressed by Defendants. Nowhere in the FAC, do Plaintiffs recite outrageous conduct such as complained of in Newby. For example, Paragraph 104 of the Plaintiff's complaint concludes that Defendants’ conduct caused “extreme mental distress” and that it “was knowing and willful.” The complaint lacks the requisite facts to support “outrageous conduct” under the law. Plaintiff must also plead facts that indicate severe emotional distress. Generally, no recovery can be had for intentional infliction of emotional distress unless that distress is severe. (Aweeka v. Bonds (1971) 20 Cal.App.3d 278.) In that case, the tenant was served with a notice of a substantial rent increase after threatening to repair and deduct the costs of repair pursuant to statute. The court held that because the landlord knew the tenant could not pay the amount of rent requested in the notice, the tenant was effectively evicted, and this allegation could substantiate a claim for intentional infliction of emotional distress. "Severe emotional distress" has been defined as emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it. It may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry. Even these mitigated emotional reactions are absent from Plaintiffs’ complaint. Thus, the complaint fails to state facts sufficient to constitute a cause of action for intentional infliction of emotional distress and the demurrer should be sustained. (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531.) The Court serves as the gatekeeper to determine whether the allegations in the complaint are sufficiently outrageous to support a claim for intentional infliction of emotional distress. The court in Godfrey v. Steinpress stated that: Mf 4825-8221-8767.1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTeC Ge Se DH HH me He Nm YR DP BP NB NON ND me ee ee ik oy A Mw & BM Be SE BO A DAH B&W NY SF S Regarding emotional distress, the trial court initially determines whether a defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Where reasonable men can differ, the jury determines whether the conduct has been extreme and outrageous to result in liability, Otherwise stated, the court_determines_ whether severe emotional distress can be found; the jury determines whether on the evidence it has, in fact, existed. (Godfrey v. Steinpress (1982) 128 Cal.App.3d 154, 173 (emphasis added).} Accordingly, many appellate decisions have affirmed orders sustaining demurrers to claims for intentional infliction of emotional distress where the allegations in the complaint are insufficient to satisfy the high threshold of outrageousness required for this claim. (See Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209; Cochran y. Cochran (1998) 65 Cal.App.4th 488, 495-96; Burkle v. Burkle (2006) 144 Cal.App.4th 387, 397-98; Coleman v. Republic Indemnity Ins. Co. (2005) 132 Cal.App.4th 403, 416-17; Ankeny, supra, 88 Cal.App.3d 531 at 536-37; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618.) Defendants request that the court function here as the gatekeeper to these insufficient claims, and sustain the demurer as to this cause of action. IV. CONCLUSION The allegations in Plaintiffs’ FAC do not support claims for Breach of Warranty of Quiet Enjoyment or Intentional Infliction of Emotional Distress, and Plaintiffs will be unable to certify a class action. Therefore, Defendant respectfully requests that this Court sustain its Demurrer, without leave to amend, and for such other and further relief as this Court deems just and proper. In the alternative, Defendant requests that the Court consider each cause of action individually, and sustain Defendants’ Demurrer on an individual basis. Mt it Mf Mf it Me 4825-8221-8767.1 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTLEWIS BRISBOIS BISGAARD &SMIH LIP ATIORHEYS APA CP TD HW FE WwW NH Ee =e Be Be kA wv Ny mM SO 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: April 12, 2012 LEWIS BRISBOIS BISGAARD & SMITH LLP o- WUNCOUL HELBN LEE GRE. 1 NICOLE L. rome Defendants 1090 EDDY ST, LLC; ADAM KOMOSA, individually and dba JASON ADAMS MANAGEMENT CO.; RALPH DAYAN and TOM SWIERK (erroneously named and served herein as TOM SWIERT) 4825-8221-8767.1 13 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTLEWIS BRISBOIS BISGAARD & SMITH UP TIGRE AT LAW oO DT KH KR eR RON NB NR RB NN NON mm aie eo 1a Kn mH &F HN S&B SSC MA KH HW BF WN SB S File No, 25943.1270 CALIFORNIA STATE COURT PROOF OF SERVICE Sal Castillo, et al. v. Ralph Dayan, et al. San Francisco County Superior Court Case No. CGC-11-516078 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO At the time of service, I was over 18 years of age and not a party to the action. My business address is One Sansome Street, Suite 1400, San Francisco, CA 94104. On April 12, 2012, I served the following document: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS?’ DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT I served the document on the following persons at the following addresses (including fax numbers and email addresses, if applicable): Mark Hooshmand, Esq. drew Castricone, Esq. Hooshmand Law Group irsten McNelly Bibbes, Esq. 22 Battery Street, Suite 610 ordon & Rees th San Francisco, CA 94111 275 Battery Street, 20"' Floor Tel: 415.318.5709 San Francisco, CA 94111 . ce [T: 415.986.5900; F: 415.986.8054 Fax: 415.376.5897 Kirsten Direct: 415.875.3137 Email: mark@lawmmh.com (Email: acastricone@gordonrees.com; Attorneys for Plaintiff Sal Castillo kbibbes@gordonrees.com o-counsel for Defendants 1090 EDDY ST, LLC, ADAM KOMOSA, individually and dba JASON ADAMS MANAGEMENT CO., RALPH DAYAN, and TOM SWIERK The document was served by the following means: & (BY U.S. MAIL) I enclosed the document in a sealed envelope or package addressed to the persons at the addresses listed above placed the envelope or package for collection and mailing, following our ordinary business practices. I am readily familiar with the firm’s practice for collection and processing correspondence for mailing. Under that practice, on the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the U.S. Postal Service, in a sealed envelope of package with the postage fully prepaid. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. \ Dated: April 12, 2012 xbrwida eh Amanda Hampton 4825-8221-8767.1 PROOF OF SERVICE