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1 Andrew E. Westley (Cal. Bar No. 171940)
LAW OFFICE OF ANDREW WESTLEY PC
2 870 Market Street, Suite 788
San Francisco, California 94102 ELECTRONICALLY
3 Phone: (415) 362-2817 F I L E D
Fax: (415) 362-2819 Superior Court of California,
County of San Francisco
4 Email: awestley@westleylaw.com
09/01/2020
5 Attorney for Plaintiff, WILLIAM BYERLY Clerk of the Court
BY: RONNIE OTERO
Deputy Clerk
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
7
SAN FRANCISCO COUNTY
8
UNLIMITED JURISDICTION
9
10
WILLIAM BYERLY, Case No. CGC-20-584406
11
Plaintiff, DECLARATION OF ANDREW
12 WESTLEY IN OPPOSITION TO
v. DEFENDANT’S DEMURRER TO
13 PLAINTIFF’S FIRST AMENDED
2100 GREEN STREET, INC.; and DOES 1 COMPLAINT
14 through 10, inclusive,
Time: 9:30 AM
15 Defendants. Date: 9/15/2020
Dept: 302
16
17
18
19 ANDREW E. WESTLEY declares:
20 1. I am an attorney at law duly admitted to practice before all the courts of the State of
21 California, and I am the attorney of record herein for Plaintiff in this action.
22 Introduction
23 2. I submit this Declaration in opposition to Defendant’s demurrer to Plaintiff’s First
24 Amended Complaint (“FAC”). The demurrer should be overruled on both procedural and
25 substantive grounds:
26 Procedural defect. The demurrer was incorrectly noticed to be heard in Department 302,
27 but under Rule 8.10 of the Local Rules of Court for the San Francisco Superior Court, the
28 demurrer should have been noticed to be heard by the Real Property Court (Department 501)
DECLARATION IN OPPOSITION TO DEMURRER -1- CASE NO. CGC-20-584406
1 because this is a case arising out of ownership and possession of real property.
2 Substantive deficiencies of Defendant’s demurrer. Defendant has demurred on two
3 grounds: (1) Plaintiff’s FAC does not state facts sufficient to state any cause of action; and
4 (2) Plaintiff’s claim for an injunction is not a valid cause of action. The demurrer should be
5 overruled because, as discussed in complete detail below, Defendant’s own papers in support of
6 the demurrer concede that Plaintiff’s FAC states sufficient facts in support of the claims for
7 negligence and breach of proprietary lease. Additionally, Plaintiff’s claim for an injunction
8 is entirely proper.
9 Background
10 3. Plaintiff is the owner of a residential penthouse unit in San Francisco. FAC ¶¶ 8-10.
11 Various unit owners and their guests utilize the roof above Plaintiff’s penthouse as a rooftop
12 gathering area which significantly and unreasonably interferes with Plaintiff’s right to quiet use
13 and enjoyment of his unit. FAC ¶ 20. Moreover, use of the penthouse roof as a rooftop
14 gathering area is not compliant with the building’s governing documents, it is not lawful, and it is
15 unsafe. FAC ¶ 14.
16 4. This lawsuit was filed on 5/11/2020. Plaintiff’s initial Complaint set forth three
17 causes of action: negligence; breach of proprietary lease (one of the building’s governing
18 documents); and negligent infliction of emotional distress. (A true and accurate Court-stamped
19 copy of the Complaint is attached hereto as Exhibit A.) The prayer for relief in the initial
20 Complaint sought monetary damages and an injunction. The prayer also sought attorney’s fees
21 (as well as costs, prejudgment interest, etc.).
22 5. Defendant’s counsel, before filing any responsive pleading to Plaintiff’s initial
23 Complaint, sent a meet and confer letter stating the following, in pertinent part (a true and
24 accurate copy of Defendant’s counsel’s meet and confer letter dated 6/10/2020 is attached as
25 Exhibit B):
26 a. Defendant intended to demur to all three causes of action set forth in the
27 Complaint;
28 b. Defendant intended to file a motion to strike Plaintiff’s prayer for an order
DECLARATION IN OPPOSITION TO DEMURRER -2- CASE NO. CGC-20-584406
1 directing specific action (which Defendant has characterized as a prayer for an
2 injunction on grounds that the body of the Complaint itself did not assert any such
3 claim; and
4 c. Defendant intended to file a motion to strike Plaintiff’s prayer for attorney’s fees.
5 6. In an effort to avoid unnecessary motion practice, Plaintiff timely filed the FAC which
6 resolved the issues raised by Defendant’s counsel as follows (a true and accurate Court-stamped
7 copy of the FAC is attached as Exhibit C):
8 a. The FAC includes additional factual allegations in support of Plaintiff’s causes of
9 action for negligence and breach of proprietary lease;
10 b. The FAC does not allege a separate cause of action for negligent infliction of
11 emotional distress;
12 c. Plaintiff’s claim for an injunction is set forth both in the body of the pleading and
13 in the prayer for relief; and
14 d. The FAC does not include a prayer for attorney’s fees.
15 7. Defendant’s counsel, after receiving the FAC, then sent a new meet and confer letter
16 arguing that the FAC is problematic because Plaintiff’s request for an injunction belongs
17 exclusively in the prayer for relief, and not as a separate claim in the body of the FAC itself. (A
18 true and accurate copy of Defendant’s counsel’s meet and confer letter dated 7/8/2020 is attached
19 as Exhibit D.) Defendant’s counsel did not raise any other issues in her meet and confer letter.
20 8. I responded to Defendant’s counsel’s meet and confer letter by pointing out that her
21 position regarding Plaintiff’s claim for an injunction is directly contradictory to the position she
22 took in response to Plaintiff’s initial Complaint. As such, I informed Defendant’s counsel that
23 Plaintiff would stand on the FAC. (A true and accurate copy of my letter dated 7/13/2020 is
24 attached as Exhibit E.)
25 9. Defendant then demurred to the FAC and noticed the demurrer to be heard in
26 Department 302. Under Rule 8.10 of the Local Rules of Court for the San Francisco Superior
27 Court, Defendant’s demurrer should have been noticed to be heard by the Real Property Court
28 (Department 501) because this is a case arising out of ownership and possession of real property.
DECLARATION IN OPPOSITION TO DEMURRER -3- CASE NO. CGC-20-584406
1 Defendant’s Demurrer Should Be Overruled
2 10. Defendant’s contention that Plaintiff’s FAC fails to state facts sufficient to state any
3 cause of action is belied by Defendant’s own papers which concede that Plaintiff’s causes of
4 action for negligence and breach of proprietary lease have been sufficiently pled. Specifically,
5 Defendant’s memorandum of points and authorities states the following:
6 The FAC corrected the deficiencies as to the previously pled Negligence
and Breach of Proprietary Lease causes of action, and requested injunctive
7 relief which is now tied to the revised causes of action. Defendant’s
Memo. of Points and Auth., at p. 3, lines 17-19.
8
9 11. Defendant’s objection to Plaintiff’s claim for an injunction is similarly devoid of
10 merit. Specifically, Plaintiff’s claim for an injunction (third cause of action alleges the following
11 pertinent facts):
12 The proprietary lease between Defendant and the unit owners provides that each owner
13 shall have the right to quiet enjoyment of their unit; owners shall not interfere with the rights of
14 other residents, shall not annoy other residents by unreasonable noises or otherwise, and shall
15 comply with all city departments with respect to the premises; each unit owner is responsible for
16 ensuring that they and their co-occupants and guests do not interfere with the comfort and/or
17 quiet enjoyment of other others; and the public stairways shall not be used for any purpose other
18 than for ingress to and egress from the units. FAC ¶ 57. Defendant has breached its contractual
19 obligation(s) owed to Plaintiff, as set forth explicitly in the proprietary lease and as implied by
20 law, by failing to take any action or steps to preserve Plaintiff’s quiet enjoyment of his home, and
21 by failing to take any action in connection with the unlawful use of the penthouse roof as a
22 rooftop gathering area. FAC ¶ 58. Defendant has also breached is duty to exercise ordinary care
23 and skill in managing the building. FAC ¶ 59.
24 12. Plaintiff’s third cause of action seeks an injunction directing Defendant: (a) to notify
25 building occupants, in a manner deemed reasonable by the Court, that use of the penthouse roof
26 as an outdoor rooftop gathering area is not allowed; and (b) to adopt a plan of enforcement which
27 the Court deems reasonable. FAC ¶ 60.
28 13. Plaintiff’s claim for an injunction further alleges that unless Defendant is ordered to
DECLARATION IN OPPOSITION TO DEMURRER -4- CASE NO. CGC-20-584406
1 take action to curtail use of the penthouse roof as a rooftop gathering area, and to implement a
2 plan of enforcement, Plaintiff will be irreparably injured in that he will continue to be
3 substantially deprived of the quiet enjoyment of his home. FAC ¶ 61. Also, monetary damages
4 are inadequate for the following reasons: Plaintiff will be forced to institute a multiplicity of suits
5 for monetary damages if Defendant continues to refuse to take appropriate measures to curtail
6 use of the penthouse roof as a rooftop gathering area; it is difficult to determine the precise
7 amount of damages that Plaintiff has suffered and will continue to suffer as a result of the
8 unreasonable and substantial interference with his quiet enjoyment of his home; and a money
9 judgment against Defendant is unlikely to ensure that building occupants and their guests will
10 curtail their use the penthouse roof as a rooftop gathering area. FAC ¶ 62.
11 14. As demonstrated in Plaintiff’s accompanying Memorandum of Points and
12 Authorities, the cases cited by Defendant in support of its demurrer do not stand for the
13 proposition Defendant espouses, i.e. that Plaintiff’s claim for an injunction is improper and
14 subject to demurrer.
15 15. In any event, if the Court is inclined to grant Defendant’s demurrer, Plaintiff
16 respectfully requests leave to amend. Any defect with respect to Plaintiff’s claim for injunctive
17 relief can easily be cured by amending the heading, “Third Cause of Action –
18 Injunctive/Equitable Relief” to read “Facts in Support of Prayer for Injunctive/Equitable Relief.”
19 I declare under the penalty of perjury under the laws of California that the foregoing is
20 true and correct.
21
22 Dated: August 31, 2020 _________________________
Andrew E. Westley
23
24
25
26
27
28
DECLARATION IN OPPOSITION TO DEMURRER -5- CASE NO. CGC-20-584406
EXHIBIT A
EXHIBIT B
June 10, 2020
Via Email Only/PDF
Andrew E. Westley
LAW OFFICE OF ANDREW WESTLEY PC
870 Market Street, Suite 788
San Francisco, CA 94102
awestley@westleylaw.com
Re: Byerly: 2100 Green Street, Inc.
Our File No.: CNAO.119739.1
Dear Mr. Westley:
My firm and I represent 2100 Green Street, Inc., named Defendant in the action entitled
William Byerly v. 2100 Green Street, Inc. Pursuant to Code of Civil Procedure Sections 430.31
and 435.5, please allow this letter to serve as a meet and confer effort regarding the legal
Our review of the Complaint indicates that Plaintiff has failed to state facts sufficient to
constitute a cause action as to all three causes of action asserted against Defendant 2100 Green
Street, Inc., such that the entire Complaint is subject to demurrer. (Cal. Code of Civ. P. §
430.10(e).)
Negligence
To support a negligence cause of action, plaintiff must plead: (1) defendant owed plaintiff
a legal duty, (2) defendant breached the duty, (3) the breach was a proximate or legal cause of
of identifying whether the negligence
Weimer v.
Nationstar Mortgage, LLC
alleged in general terms, without specific facts showing how the injury occurred, but there are
the
plaintiff must indicate the acts or omissions which are said to have been negligently performed.
SAN FRANCISCO LOS ANGELES SACRAMENTO
Byerly: 2100 Green Street, Inc.
June 10, 2020
Page 2
injury Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.)
Here, Plaintiff failed to adequately plead how Defendant breached its duty and/or which
assertion that he suffered damages is legally inadequate for purposes of pleading the element of
damages. Accordingly, Plaintiff fails to state sufficient facts to support a cause of action for
Negligence, rendering it subject to demurrer.
Breach of Proprietary Lease
The law deems a lease to be a contract. (Munoz v. MacMillan (2011) 195 Cal.App.4th
648 p.655-56.) To support a breach of proprietary lease/breach of contract cause of action,
d damage to plaintiff resulting therefrom. (Id., at p. 655.)
In his Complaint, Plaintiff failed to plead his performance of excuse for failing to
perform. The Breach of Proprietary Lease claim fails to state a cause of action as a matter of
law.
Moreover, where a written instrument is the foundation of a cause of action, plaintiff
(Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402; Construction
Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199.)
In his Complaint, Plaintiff failed to plead the contract at issue in either manner. Thus, the
cause of action for Breach of Proprietary Lease is subject to demurrer for failing to state facts
sufficient to constitute a cause of action on two different grounds.
Negligent Infliction of Emotional Distress
California court
(Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th
195, 204; internal quotations omitted.) s not an
independent tort, but the tort of negligence. [Citation.] The traditional elements of duty, breach
Burgess v. Superior Court (1992) 2 Cal.4th 1064,
1072.)
As Plaintiffs other causes of action are legally deficient, the derivative Negligent
Infliction of Emotional Distress cause of action similarly fails as a matter of law and is subject to
demurrer.
Byerly: 2100 Green Street, Inc.
June 10, 2020
Page 3
Prayer For Injunctive Relief
Our review of the Complaint also indica ing
Defendants: (a) to notify building occupants, in a manner deemed reasonable by the Court, that
the use of the Penthouse Roof as an outdoor rooftop gathering area is not allowed; and (b) to
which amounts to a prayer for
injunctive relief, is subject to Motion to Strike. (Cal. Code of Civ. P. §§ 436, 431.10(b)(3).)
In his Complaint, Plaintiff fails to assert any cause of action pursuant to which equitable
or injunctive relief may be granted. (Cal. Code of Civ. P. §431.10(b)(3).) Therefore, the Court
(Cal. Code of Civ. § 436.)
2100 Green Street, Inc. is a stock cooperative, not governed by the Davis Stirling Act.
Therefore, the prayer for
It is my hope that we can resolve this matter informally, without unnecessary motion
practice and court involvement. Please respond to this letter by email no later than close of
business on Friday, June 12, 2020 to let me know whether you will amend and/or dismiss your
Complaint.
If we are unable to resolve these issues informally, Defendant will file a demurrer as to
the entire Complaint and all causes of action therein, pursuant to Code of Civil Procedure
Sections 430.10(e) and a concurrent motion to strike as to the prayers for equitable relief and
pursuant to Code of Civil Procedure Sections 436 and 431.10(b)(3).
Very truly yours,
Alina Pavlova
cc: Suzie M. Tagliere (via Email/PDF)
AXP.3727980.docx
EXHIBIT C
1 Andrew E. Westley (Cal. Bar No. 171940)
LAW OFFICE OF ANDREW WESTLEY PC
2 870 Market Street, Suite 788
San Francisco, California 94102
3 Phone: (415) 362-2817
Fax: (415) 362-2819
4 Email: awestley@westleylaw.com
5 Attorney for Plaintiff, WILLIAM BYERLY
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
7
SAN FRANCISCO COUNTY
8
UNLIMITED JURISDICTION
9
10 WILLIAM BYERLY, Case No. CGC-20-584406
11 Plaintiff, PLAINTIFF’S FIRST AMENDED
12 COMPLAINT
v.
13 2100 GREEN STREET, INC.; and DOES 1
14 through 10, inclusive,
Defendants.
15
16
17 Plaintiff, WILLIAM BYERLY (hereinafter, “Plaintiff”), as and for his First Amended
18 Complaint, alleges the following:
19 1. Plaintiff is an individual over the age of 18 years, and at all relevant times has been a
20 resident of the City and County of San Francisco.
21 2. Defendant 2100 GREEN STREET, INC. (hereinafter, “Defendant Corporation”) is a
22 corporation incorporated under the laws of the State of California.
23 3. Defendant DOES 1 through 10 are sued herein under fictitious names pursuant to
24 California Code of Civil Procedure section 474; these defendants are in some way liable for the
25 damages sustained by Plaintiff. Plaintiff does not at this time know the true names or capacities of
26 said Defendants, but prays that the same may be inserted herein when ascertained.
27 4. Defendants at all times herein mentioned were the agents and employees of their co-
28 Defendants, and in doing the things hereinafter alleged were acting within the course and scope of
PLAINTIFF’S FIRST AMENDED COMPLAINT -1- CASE NO. CGC-20-584406
1 such agency, and with the permission and consent of their co-Defendants.
2 5. All acts alleged herein occurred in the City and County of San Francisco.
3 FACTS COMMON TO ALL CAUSES OF ACTION
4 6. 2100 Green Street, San Francisco, California (hereinafter, “Building”) is a “stock
5 cooperative” residential apartment building, and Defendant Corporation holds title to the
6 Building.
7 7. Occupancy of each unit in the Building is subject to the terms and provisions of
8 identical written proprietary lease agreements between Defendant Corporation, as “lessor,” and
9 the shareholder(s) of the shares allocated to that unit, as “lessee(s)” (hereinafter, “Proprietary
10 Lease”).
11 8. The Building was built in 1928 and has 22 units. It is 10 stories high, including two
12 garage levels and eight stories of apartments, including a stunning and unique rooftop penthouse
13 (Unit 800) (hereinafter, “Penthouse”).
14 9. Plaintiff is a shareholder of Defendant Corporation and has a right of exclusive
15 occupancy to the Penthouse, pursuant to the terms and provisions of his Proprietary Lease.
16 10. Plaintiff acquired his “ownership interest” in the Penthouse in or around January
17 2018.
18 11. The Penthouse is approximately 3,122 square feet, and has 2 bedrooms, 2.5
19 bathrooms, a large open living room/dining room, richly paneled office/library, family room,
20 gourmet kitchen, wood-burning fireplace with elaborately carved mantlepiece, all-glass solarium,
21 private outdoor deck over the building’s main roof structure, and sweeping views of the San
22 Francisco Bay, Alcatraz, and the Golden Gate Bridge.
23 12. Amongst the unique features of the Penthouse is its quietude. The Penthouse is the
24 only rooftop penthouse unit in the Building, and there are no adjacent or upstairs neighbors.
25 13. Some occupants of the Building, including some directors of Defendant Corporation,
26 utilize the tar and gravel Penthouse roof as an outdoor rooftop gathering area for themselves and
27 their visitors, to hang out, socialize, listen to music, and drink alcohol. Some occupants allow
28 their visitors to utilize the Penthouse roof as an outdoor rooftop gathering area even when the
PLAINTIFF’S FIRST AMENDED COMPLAINT -2- CASE NO. CGC-20-584406
1 occupants themselves are not present. One of the “hang-out areas” on the Penthouse roof is
2 directly above the main bedroom of Plaintiff’s Penthouse.
3 14. Use of the Penthouse roof as an outdoor rooftop gathering area violates
4 governmental, quasi-governmental, and/or administrative codes, rules, regulations, and/or
5 policies, and is also dangerous.
6 15. The Building’s governing documents, including the Proprietary Lease and the House
7 Rules, do not designate the Penthouse roof as a rooftop gathering area.
8 16. Access to the Penthouse roof is gained by climbing the interior Building stairway up
9 to the main roof, opening the door which is marked “EMERGENCY EXIT ONLY,” walking
10 across the tar and gravel main roof to the Penthouse, and then climbing a ladder mounted to the
11 exterior wall of the Penthouse up to the Penthouse roof.
12 17. The portion of the interior stairway that leads up to the main roof, and the mounted
13 exterior ladder up to the Penthouse roof, are part of the emergency means of egress and are also
14 meant to access equipment and to execute maintenance.
15 18. The directors of Defendant Corporation (hereinafter, “Directors”) are aware that
16 some Building occupants and their visitors utilize the Penthouse roof as an outdoor rooftop
17 gathering area, and indeed some Directors themselves utilize the Penthouse roof as an outdoor
18 gathering area.
19 19. The Penthouse roof is composed of tar and gravel, and there is no walking platform.
20 Neither the tar and gravel main roof nor the tar and gravel Penthouse roof are rated as a walking
21 surface for any use other than for emergency and for access for inspection and maintenance.
22 20. There is no noise reducing material between the Penthouse and the Penthouse roof.
23 As such, the noise generated by 100-plus pounds of weight crunching down on gravel as people
24 walk across the Penthouse roof directly over Plaintiff’s apartment unit significantly and
25 unreasonably interferes with Plaintiff’s quiet enjoyment of his home, as does the noise generated
26 by people talking, shouting out to one another, and playing music on the Penthouse roof.
27 21. Moreover, use of the Penthouse roof as a rooftop gathering area has significantly
28 diminished the market value of the Penthouse.
PLAINTIFF’S FIRST AMENDED COMPLAINT -3- CASE NO. CGC-20-584406
1 22. Plaintiff suffers from a painful and disabling neuropathic medical condition, and rest
2 is particularly important to his treatment plan. Use of the Penthouse roof as an outdoor rooftop
3 gathering area has had a deleterious effect on Plaintiff’s physical and emotional health because
4 such use unreasonably interferes with Plaintiff’s ability to rest.
5 23. Plaintiff has notified Defendant Corporation, through its Directors, that use of the
6 Penthouse roof as an outdoor rooftop gathering area unreasonably interferes with his quiet
7 enjoyment of his home, and Plaintiff has requested that Defendant Corporation take steps to
8 curtail use of the Penthouse roof as an outdoor rooftop gathering area, including notifying
9 Building occupants that use of the Penthouse roof as an outdoor rooftop gathering area is not
10 allowed and implementing an appropriate enforcement plan.
11 24. Defendant Corporation has failed and refused to take any action in response to
12 Plaintiff’s requests.
13 25. Instead, Defendant Corporation has allowed the ongoing use of the Penthouse roof
14 as an outdoor rooftop gathering area, and indeed some of the Directors themselves utilize the
15 Penthouse roof as an outdoor gathering area.
16 26. By law, inherent in the Proprietary Lease is an implied covenant of quiet enjoyment,
17 giving rise to a contractual duty by Defendant Corporation, as lessor, to preserve the quiet
18 enjoyment of each unit by the lessee(s) of that unit. Also by law, the perpetrator of the
19 interference with the lessee’s quiet enjoyment need not be the lessor personally. Rather, there may
20 be an actionable breach where, as in this case, the interference is caused by a neighbor.
21 27. In addition to the implied covenant of quiet enjoyment, the Proprietary Lease
22 explicitly provides that the lessee(s) of each unit shall have the right to quiet enjoyment of the
23 unit. Specifically, Article II, Paragraph “Fourth” of the Proprietary Lease states the following:
24 “... [T]he Lessee upon paying the rents and performing the
covenants and complying with the conditions on the part of the
25 Lessee herein set forth at all times during the term hereby granted,
quietly have, hold, and enjoy the said premises….”
26
27 28. The Proprietary Lease further provides that lessees shall not interfere with the rights
28 of other residents, shall not annoy other residents by unreasonable noises or otherwise, and shall
PLAINTIFF’S FIRST AMENDED COMPLAINT -4- CASE NO. CGC-20-584406
1 comply with all city departments with respect to the premises. Specifically, Article III, Paragraph
2 “Fifth” of the Proprietary Lease states the following:
3 “…[The] Lessee shall not…permit nor suffer anything to be
done…upon said premises which will…interfere with the rights of
4 other residents of the building, or annoy such other residents by
unreasonable noises or otherwise…and the Lessee and members of
5 Lessee’s household shall comply with all the requirements of the
Board of Health and of all other city, state and federal departments
6 with respect to the said premises….”
7 29. Moreover, the “House Rules Attached to Lease” (hereinafter, “House Rules”)
8 explicitly provide that each lessee is responsible for ensuring that the lessee and the lessee’s
9 co-occupants and guests do not interfere with the comfort and/or quiet enjoyment of other
10 lessees. Specifically, the House Rules state the following:
11 “2. Each lessee is responsible for ensuring that the lessee and the
lessee’s co-occupants, guests, and workers make no disturbing
12 noises in the building or otherwise interfere with the rights,
comforts, quiet enjoyment, or convenience of other lessees.”
13
14 30. Building occupants and their guests who utilize the Penthouse roof as a rooftop
15 gathering area make disturbing noises and otherwise interfere with Plaintiff’s rights, comforts, and
16 quiet enjoyment of his home.
17 31. The House Rules further provide that the public stairways shall not be used for any
18 purpose other than for ingress to and egress from the apartments. Specifically, the House Rules
19 state the following:
20 “1. The public halls and stairways shall not be obstructed or used
for any purpose other than for ingress to and egress from the
21 apartments.”
22 32. Building occupants who utilize the Penthouse roof as an outdoor rooftop gathering
23 area utilize the public stairways to gain access to the roof, and are thereby in violation of the
24 Proprietary Lease.
25 33. The Proprietary Lease provides that the House Rules are part of the Proprietary
26 Lease, and as such, a violation of the House Rules constitutes a violation of the Proprietary Lease.
27 Specifically, the Proprietary Lease states the following as respects the House Rules:
28 “ARTICLE III. The Lessee hereby covenants with the Lessor as
PLAINTIFF’S FIRST AMENDED COMPLAINT -5- CASE NO. CGC-20-584406
1 follows:
***
2 Fourth: That the Lessor may from time to time establish such
reasonable house rules as its Board of Directors may deem
3 necessary for the management and control of the said building, and
may also from time to time change such rules, and that this lease
4 shall be in all respects subject to such rules, and to the by-laws of
the lessor, which shall be taken to be part thereof, and that the
5 Lessee shall obey all such rules and see that they are faithfully
observed by the household and employees of the Lessee, it being
6 understood that such rules shall apply to and be binding upon all of
the tenants of the said building, whether stockholders of the Lessor
7 or not, and that such rules, so far as applicable, shall be contained in
the leases of apartments leased to tenants who are not such
8 stockholders.…
9 34. As alleged herein, Defendant Corporation has failed to preserve Plaintiff’s quiet
10 enjoyment of his home.
11 35. As further alleged herein, Defendant Corporation has failed to enforce the provisions
12 of the Proprietary Lease and House Rules referenced and quoted herein.
13 36. As a direct and proximate result of the foregoing, Plaintiff has been deprived of the
14 quiet enjoyment of his home, and has suffered damages in an amount according to proof.
15 37. Plaintiff has performed all obligations under the Proprietary Lease.
16 FIRST CAUSE OF ACTION
17 Negligence
18 38. Defendant Corporation, as Building owner and Plaintiff’s lessor, owes a duty to
19 Plaintiff to exercise ordinary care and skill in managing the Building
20 39. As alleged herein, Defendant Corporation also owes a duty to preserve Plaintiff’s
21 quiet enjoyment of his home.
22 40. Defendant Corporation has failed to exercise due care with respect to the foregoing
23 duties. Specifically, Defendant Corporation has allowed and continues to allow the Penthouse
24 roof to be unlawfully used as a rooftop gathering area with full knowledge that such use
25 unreasonably and substantially interferes with Plaintiff’s quiet enjoyment of his home.
26 41. As a direct and proximate result of the failure by Defendant Corporation to exercise
27 due care with respect to above-listed duties, Plaintiff has suffered damages in an amount
28 according to proof.
PLAINTIFF’S FIRST AMENDED COMPLAINT -6- CASE NO. CGC-20-584406
1 42. Moreover, in performing the acts, conduct, and /or omissions alleged herein,
2 Defendant Corporation has been negligent and careless regarding the probability that its acts,
3 conduct, and/or omissions would cause Plaintiff severe emotional and psychological distress and
4 anguish.
5 43. Defendant Corporation knew, or should have known, that its failure to exercise due
6 care with regard to the aforementioned conduct would cause Plaintiff severe emotional distress.
7 44. As a direct and proximate result of the negligent conduct by Defendant Corporation,
8 Plaintiff has suffered serious emotional distress which under the same circumstances a reasonable
9 person would be unable to cope with, in an amount according to proof.
10 45. Had Defendant Corporation complied with its duties as alleged herein, it would not
11 have caused Plaintiff to suffer damages.
12 SECOND CAUSE OF ACTION
13 Breach of Proprietary Lease
14 46. The allegations of all preceding paragraphs are realleged and incorporated herein by
15 reference.
16 47. By law, inherent in the Proprietary Lease is an implied covenant of quiet enjoyment,
17 giving rise to a contractual duty by Defendant Corporation, as lessor, to preserve the quiet
18 enjoyment of each unit by the lessee(s) of that unit.
19 48. In addition to the implied covenant of quiet enjoyment, and as alleged and quoted
20 above, the Proprietary Lease explicitly provides as follows: the lessee(s) of each unit shall have
21 the right to quiet enjoyment of the unit; lessees shall not interfere with the rights of other
22 residents, shall not annoy other residents by unreasonable noises or otherwise, and shall comply
23 with all city departments with respect to the premises; each lessee is responsible for ensuring that
24 the lessee and the lessee’s co-occupants and guests do not interfere with the comfort and/or quiet
25 enjoyment of other lessees; and the public stairways shall not be used for any purpose other than
26 for ingress to and egress from the apartments.
27 49. Defendant Corporation has breached its contractual obligation(s) owed to Plaintiff,
28 as set forth explicitly in the Proprietary Lease and as implied by law, by failing to take any action
PLAINTIFF’S FIRST AMENDED COMPLAINT -7- CASE NO. CGC-20-584406
1 or steps to preserve Plaintiff’s quiet enjoyment of his home, and by failing to take any action in
2 connection with the unlawful use by some Building occupants of the Penthouse roof as a rooftop
3 gathering area.
4 50. Instead, Defendant Corporation has allowed the tar and gravel Penthouse roof to be
5 used as a rooftop gathering area, and indeed some Directors themselves use the Penthouse roof as
6 a rooftop gathering area.
7 51. As a direct and proximate result of the foregoing, Plaintiff suffered damages in an
8 amount according to proof.
9 THIRD CAUSE OF ACTION
10 Injunctive/Equitable Relief
11 52. The allegations of all preceding paragraphs are realleged and incorporated herein by
12 reference.
13 53. Use of the Penthouse roof as an outdoor rooftop gathering area violates
14 governmental, quasi-governmental, and/or administrative codes, rules, regulations, and/or
15 policies, and is also dangerous. Use of the Penthouse roof as an outdoor rooftop gathering area
16 also significantly and unreasonably interferes with Plaintiff’s quiet enjoyment of his home.
17 54. Defendant Corporation has actual notice that the Penthouse roof is being utilized as
18 an outdoor rooftop gathering area, and indeed some Directors themselves utilize the Penthouse
19 roof as an outdoor rooftop garden. Defendant Corporation also has actual notice that use of the
20 Penthouse roof as an outdoor gathering area significantly and unreasonably interferes with
21 Plaintiff’s quiet enjoyment of his home.
22 55. Plaintiff has requested that Defendant Corporation take steps to curtail use of the
23 Penthouse roof as an outdoor gathering area, including notifying Building occupants that use of
24 the Penthouse roof as an outdoor rooftop gathering area is not allowed, and implementing an
25 appropriate enforcement plan, but Defendant Corporation has failed and refused. Instead,
26 Defendant Corporation has allowed, and continues to allow, the ongoing use of the Penthouse
27 roof as an outdoor rooftop gathering area.
28 56. By law, inherent in the Proprietary Lease is an implied covenant of quiet enjoyment,
PLAINTIFF’S FIRST AMENDED COMPLAINT -8- CASE NO. CGC-20-584406
1 giving rise to a contractual duty by Defendant Corporation, as lessor, to