Motion for Judicial Notice in Katherine Gilson vs GS Almaden, LLC. et al| Trellis.Law

On July 09, 2020 a Clerk Notice was filed involving a dispute between Katherine Gilson, and Avana Almaden, Greystar California Inc., Greystar Worldwide, Llc., Gs Almaden, Llc., for Other PI/PD/WD Unlimited (23) in the District Court of Santa Clara County.

Preview
Electronically Filed
Christopher E. Brumfiel (SBN 214866)
by Superior Court of CA,
cebrumfiel@ww.law County of Santa Clara,
Michelle A. Perez (SBN 317746)
on 10/8/2020 7:48 PM
maperez@ww.law Reviewed By: R. Tien
WOLFE & WYMAN LLP Case #20CV368213
2175 N. California Blvd., Suite 645 Envelope: 5079051
Walnut Creek, California 94596-3502
Telephone: (925) 708-7000
Facsimile: (925) 280-0005

Attorneys for Defendant
GS ALMADEN, LLC

SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 FOR THE COUNTY OF SANTA CLARA
az
i 11
a.
Zo
ts 12 KATHERINE GILSON, Case No.: 20CV368213
=i
22 13 Plaintiff,
REQUEST FOR JUDICIAL NOTICE
we 14 Vv. IN SUPPORT OF NOTICE OF
We MOTION AND MOTION OF
ho
az 15 GS ALMADEN, LLC., GREYSTAR DEFENDANTS GS ALMADEN, LLC
Oo WORLDWIDE, LLC., AVANA ALMADEN, and TO STRIKE PORTIONS OF THE
16 DOES | through 20, inclusive, COMPLAINT

17 Defendants. [Filed Concurrently with the Notice of
Motion and Motion, the Declaration of
18 Michelle A. Perez in Support Thereof, and
the [Proposed] Order.]
19
Date:
20 Time:
Dept.:
21
Trial Date: None.
22 Action Filed: July 09, 2020

23
24 Defendant GS ALMADEN, LLC (hereinafter, “GS Almaden”) by and through its attorney of
25 record, requests the court take judicial notice, pursuant to California Evidence Code § 452, of the
26 following in support of Defendant’s Motion to Strike Portions of the Complaint:
27

28 1
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF NOTICE OF MOTION AND
MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF THE
COMPLAINT
3716890.1
1 Plaintiffs’ operative complaint filed on or about July 9, 2020, and attached hereto as

Exhibit “A”;

DATED: September 8, 2020 WOLFE & WYMAN LLP

op _ eet)
CHRISTOPHER E. BRUMFIEL
MICHELLE A. PEREZ
Attorneys for Defendant
GS ALMADEN, LLC

10
az
i 11
a.
Zo
ts 12
=i
22 13

we 14
We
ho
az 15
Oo
16

18
19

23
24

28 2
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF NOTICE OF MOTION AND
MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF THE
COMPLAINT
3716890.1
© WOLFE & WYMAN LLP

EXHIBIT “A”
E-FILED
7/9/2020 2:57 PM
William C. Dresser, 104375 Clerk of Court
Law Offices of William C. Dresser Superior Court of CA,
4 North Second Street, Suite 1230 County of Santa Clara
San Jose, California 95113 20CV368213
Tel: 408/279-7529 Reviewed By: P. Lai
Fax: 408/298-3306

Attorneys for Plaintiff
Katherine Gilson

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SANTA CLARA

il Katherine Gilson, Action No.: 20CV368213
12 Plaintiff,
Complaint for Damages
13
vs.
14
GS Almaden, LLC., Greystar Worldwide,
a5
LLC., Avana Almaden, and Does 1
16 through 20, inclusive,
Defendants.
17

18
Comes now Plaintiff Katherine Gitson and alleges:
19
PARTIES
20
1. Plaintiff Katherine Gilson is a resident of the County of Santa Clara, State of
21
California,
22
2. Defendant GS Almaden, LLC. is a Delaware limited liability company doing
23

24 business in County of Santa Clara, State of California.

25 3. Defendant Greystar Worldwide, LLC is a Delaware limited liability company

26 doing business in County of Santa Clara, State of California.
27 4. Defendant Avana Almaden is a business entity of unknown type daing
28 business in County of Santa Clara, State of California.

Gilson v GS Almaden, LLC; Santa Clara action 20CV_
Complaint for Damages
5. The wrongful acts which form the basis of this action were performed in the

County of Santa Clara.

6. The breaches of contract occurred in the County of Santa Clara, and the
Lease which forms the basis of causes of action in this Complaint was executed in the
County of Santa Clara.
7. The true names and capacities of Does 1 through 20 are unknown to plaintiff,
who therefore sues them by such fictitious names. Plaintiff prays ieave to amend this
complaint to show the true names and capacities of said Does when the same have
10 been ascertained. Plaintiff is informed and believes, and so alleges, that each of said
11 Does is responsible for plaintiffs damages and injuries as hereinafter alleged and
12
described.
13
8. Plaintiff is informed and believes, and so alleges, that defendants, and each o
14
them, were at all times herein mentioned, and now are, the agents, servants,
15
employees, alter ego, and representatives.of their co-defendants, and acting within the
16
scope, purpose, and authority of such agency, service, employment, and
17
representation, and with the permission, knowledge, and consent of their co-
18
defendants. References hereinafter to "defendants" shail mean "defendants, and each
i9
of them.”
20

2a CHARGING ALLEGATIONS

22 9. On August 27, 2018 Katherine Gilson entered as tenant into a Lease Contract

23 with GS Almaden, LLC as owner for the rental of 925 Foxchase Drive Unit No. 404, San
24 Jose, CA 95123.
25 10. The lease contract lists Avana Almaden as the payee and owner's agent.
26 11. The Greystar Worldwide, LLC trademark is located on page 16, the Lease
27
Addendum Liability Insurance Required of Resident. Paragraph two of this Addendum
28

Gilson v GS Almaden, LLC; Santa Clara action 20CV_
Complaint for Damages
Tequires Greystar be listed as an interested party of any liability insurance. The Lease
Contract also states on page 42 the privacy agreement can be viewed at

www.greystar.com/privacy.

12. On December 24, 2018 Katherine Gilson discovered a puddle of water in her
bedroom. She called Avana Almaden’s emergency phone number as designated in the

lease. This number did not allow her to leave a message.
13. On December 25, 2018 at 7:45 am Katherine Gilson again called the

emergency line for Avana Almaden and spoke to man who answered the phone.
10 Around 9 am a different man who identified himself as a supervisor for Avana Almaden
LL arrived at Katherine Gilson's apartment to inspect the damage. He cut a hole in the
12 carpet and the wall.
13
14. Katherine Gilson saw a large amount of moid inside the wall. She
14
repeatedly told the supervisor that she has a mold allergy. He said he needed to pick
15
up the dryers and there was no mold in the carpet. The same Supervisor returned with
16
the commercial blowers to “dry the carpet and wall".
1?
15. The commercial blowers blew the mold spores throughout the apartment,
18
twenty-four hours a day for three days straight. Kathrine Gilson and her visiting Aunt
19
slept in the living room of her apartment as her bedroom was uninhabitable.
20

21 16. The commercial blowers were picked up on December 28, 2018,

22 17. Katherine Gilson did not have any contact from Avana Almaden on the 29",

23 30, 31° January 1%, or 2",
24 18. On the evening of January 3, 2019 Rebecca, an employee of Avana
25 Almaden, told Katherine Gilson that a company was coming the next morning to work
26 on her apartment. She also said that Katherine Gilson needed remove everything from
27 the bedroom.
26

Gilson v GS Almaden, LLC; Santa Clara action 20cv_
Complaint for Damages
19. On January 4, 2019 Katherine Gilson was sent home from her employment
at Johnson Garden. Her eye had swelled up, she had rashes on her face and arm.
She was weak and in much pain. Katherine Gilson’s allergic reaction to the mold was
intensifying.

20. Upon arrival at her apartment she saw there were no workers and no work

had been performed at the apartment.
21. Katherine Gilson went to the apartment management office and spoke with

Rebecca Rebecca said the company was working on another job. She then told
10 Katherine Gilson that if she needed a place to stay, she should contact her rental
11 insurance since Avana Almaden was not responsible. Around 2 pm Rebecca called
12 Katherine Gilson to inform her the restoration company was on its way. She also gave
13
Katherine Gilson the option of moving herself into an upstairs apartment within two
14
days, stay in Saratoga, or break the lease.
is
22. In the afternoon of January 4, 2019 the restoration.company, CDRN, came.
16
They loosely taped plastic sheeting to block off the bedroom.
17
23. Katherine Gilson continued to have severe reaction to the mold and moved
18
into a motel on January 5, 2019. She left a voicemail for Avana Almaden stating she
19

20
was moving out and that she was staying in a motel.
—_____
21 24. On January 6, 2019 Katherine Giison received a voice mail form Olga at

22 Avana Almaden saying she did not understand the voice mail and to call her.

23 25. On January 7, 2019 Katherine Gilson emailed Defendants’ employee
24 Rebecca to inform Avana Almaden that she is moving out and requested Avana
25 Almaden compensate her for her damaged belongings, missed work, and medical
26 expenses due to the excessive mold exposure.
27

Gilson v GS Almaden, LLC; Santa Clara action 20CV_
Complaint for Damages
26. On January 14, 2019 CRDN picked up five bags of Katherine Gilson's
clothing for dry cleaning. They returned her clothing on February 11, 2019 with
approximately $1,000 (one thousand dollars) of dresses, jackets, sweaters missing.
27. There remained at all known times thereafter a containment in the bedroom
s

6 area that is secured with duct tape on walls and in to the ceiling area of the bedroom.

7 The carpet in the bedroom area where there was a containment, has been covered with

8 self adhesive flooring plastic protection. There was an entrance to the containment that
9 is Closed with a zipper.
10 28. On January 31, 2019 a mold test was performed at 925 Foxchase Drive unit
11 404 for areas outside of the . The test results were positive for High concentration of
12
Alternaria (Ulocladium) Fungal Spores & Particulates by Opticai Microscopy and for
13
Aspergillus/Penicillium, Ascospores, Basidiospores, Cladosporium, and Myxomycetes.

An inspection showed patent mold growth.
15
29. February 4, 2019 Juan Tabares, Community Manager for Avana Almaden.
16
replied to Katherine Gilson's email. He stated that she was not responsible for rent afted
1?
January 31*' nor was she responsible for any fees associated with terminating the lease]

30. Attached hereto as Exhibits A and B are true and correct copies of:
19

20
A. Lease Agreement; and
—_——____
2. —~B: Email correspond
between Katherine
ence Gilson and Avana Almaden.
22 FIRST CAUSE OF ACTION
23 Breach of Written Contract
31. Plaintiff incorporates the allegations of paragraphs 4 through 30 of this
24

25 Complaint.

Gilson v G5 Almaden, LLC; Santa Clara action 20cv_
Complaint for Damages
32. On August 27, 2018 Plaintiff entered into a contract with Defendants to lease

925 Foxchase Drive, Unit 404. Plaintiff paid a monthly rent in exchange for Defendants

to provide a habitable, safe, and sanitary environment.

33. The Lease Contract contains a Mold Information and Prevention Addendum.

This Addendum is for the landiord/owner/property management to disclose any mold to

the tenant. This was signed by a representative of the Owner and Katherine Gilson as

Resident.

34. Defendants knowingly rented Unit 404 with an existing mold infestation.
10

1] 35. Defendants did not adequately repair the mold infestation inside of the wall

12 before entering into a contract with Plaintiff. This was evident by the amount of mold
13
and the patched holes inside the wall.
44
36. When the supervisor cut a hole in the wall a large growth of mold spores and
15

previous patched holes were visible.
16

1? 37. Defendants breached the Lease when they did not provide a safe, sanitary,
18 or habitable place to live due to mold infestation.
19
38. Katherine Gilson was harmed and sustained injuries as a direct, legal and
20
proximate result of Defendants’ breach of contract. This includes reasonably
21

22 anticipated persona! injuries, and economic losses. Plaintiff suffered a severe reaction

23 to mold. Plaintiff sustained severe emotional distress. Defendants damaged all of her
24
personal belongings. Plaintiff had to move, requiring expenditure of time and of effort
25
while she was ill, and requiring expenses and moving costs. In a phone call, Rebecca
26
informed Plaintiff that Anava Almaden was not responsible for any accommodations or
27

29 assistance. One option she provided to Plaintiff was two days to move herself into an

Gilson v GS Almaden, LLC; Santa Clara action 20CV_
Complaint for Damages
upstairs apartment. This was a full ten days after Defendant was made aware of unsafe

and unhealthy environment. Defendant failed to offer any assistance in relocating

Plaintiff and her property out of harm’s way

39. The Lease provides for recovery of attorneys fees in four different provisions

of the Lease. Plaintiff has employed the services of the Law Offices of William C.

Dresser to pursue recovery of damages for breach of the Lease and has incurred legal

fees therefore and will continue to incur iegal fees and miscellaneous costs. Plaintiff is

entitled to and should be awarded her reasonable attorneys’ fees and costs incurred in
10

11 this matter.

12 WHEREFORE Plaintiff prays for relief as hereinafter set forth.
13
SECOND CAUSE OF ACTION
14

is
Breach of Implied Covenant of Quiet Enjoyment

16
40. Plaintiff realleges and incorporates herein by this reference as though more

1? fully set forth the allegations contained in paragraphs 1 through 39 of this Complaint.

18 41. Every contract for lease of residential property includes an implied covenant
19 of quiet enjoyment. The implied covenant of quiet enjoyment allows a person to reside
29 in their place of dwelling peacefully without harm. Plaintiff entered into a lease
21 agreement with Defendants to live in a dwelling peacefully without harm. Defendants
22 knowingly rented Unit 404 to Plaintiff well aware of existing mold infestations.
23
Defendants were negligent in the maintenance of the property by not properly
24
eradicating the mold. Defendants installed commercial blowers that ran for three days.
25
The blowers blew the existing mold throughout the apartment causing an unreasonable
26
risk of harm to Plaintiff. Plaintiff had informed Defendants’ employee of her severe mold
27
allergy. Furthermore, Defendants failed to protect the Plaintiff during this time.
28

Gilson v GS Almaden, LLC; Santa Clara action 20CV_
Complaint for Damages
42. Upon entering into the Lease, Defendants were to ensure the Plaintiff had anl
apartment she could take quiet possession of for the duration of the lease agreement.

Defendants failed to maintain the ability for Plaintiff to have quiet possession of her
apartment.

43. The actions, and failures to act, by Defendants’ were a breach of the implied
covenant of quiet enjoyment.
44. Katherine Gilson was harmed and sustained injuries as a direct, legal and
proximate result of Defendants’ breach of contract. This includes reasonably
10 anticipated personal injuries, and economic losses.
11 45. The Lease provides for recovery of attorneys fees in four different provisions
412
of the Lease, including in connection with negligence and in connection with the
13
conditions of the premises. Plaintiff has employed the services of the Law Offices of
14
William C. Dresser to pursue recovery of damages for breach of'the covenant of quiet
15
enjoyment, and has incurred legal. fees therefore and will.continue to incur legal fees
16
and miscellaneous costs. Plaintiff is entitled to and should be awarded her reasonable
17
attorneys’ fees and costs incurred in this matter.
18
WHEREFORE Piaintiff prays for relief as hereinafter set forth.
19

20
THIRD CAUSE OF ACTION
21 Negligence

22 46. Plaintiff realleges and incorporates herein by this reference as though more

23 fully set forth the allegations contained in paragraphs 1 through 45 of this Complaint.
24 47. Defendants were negligent in their ownership, maintenance and control of
25 the apartment and buitding in which Plaintiff lived.
26 48. Defendants failed to provide Plaintiff with a safe and sanitary place to live.
27

Gilson v GS Almaden, LLC; Santa Clara action 20CV_
Complaint for Damages
49. Defendants neglected to use reasonable duty of care when they installed
commercial blowers in Unit 404. Plaintiff informed Defendants’ employee of her mold
allergy. Defendants continued to install and run commercial blowers in the apartment

for three days. Defendants made no effort to protect Plaintiff, nor take any precautions
to ensure her well-being and safety.

50. Katherine Gilson was harmed and sustained injuries as a direct, legal and
proximate result of Defendants’ negligence. This includes reasonably anticipated

personal injuries, and economic losses.
19 51. The Lease provides for recovery of attorneys fees in four different provisions
11
of the Lease, including in connection with negligence. Plaintiff has employed the
12 services of the Law Offices of William C. Dresser to pursue recovery of damages for
13
breach of the covenant of quiet enjoyment, and has incurred legal fees therefore and
14
will continue to incur legal fees and miscellaneous costs. Plaintiff is entitled to and
=
LS
should be awarded her reasonable attorneys’ fees and costs incurred in this matter.
16
WHEREFORE Plaintiff prays for relief as hereinafter set forth.
17
FOURTH CAUSE OF ACTION
18
Fraud
19

20
52. Plaintiff realleges and incorporates herein by this reference as though more
ne fully set forth the allegations contained in paragraphs ‘1
21 through’51-of this Complaint

22 53. Defendants expressly represented in writing to Plaintiff in the Lease that
23 though mold is present everywhere, that it would not be present in her apartment if she

24 followed certain procedures. This was in a Lease signed by managing agents of
25 defendants.
26 54. Defendants knew based on prior incidents in that same unit 404 that there
27
was mold throughout that unit. The visible cuts in the walls from before Plaintiff began
28

Gilson v GS Almaden, LLC; Santa Clara action 20cv_
Complaint for Damages
to rent unit 404 were evidence of the knowledge of defendants of the harmful conditions
present in the unit.

55. Oefencants concealed this material fact from Plaintiff.
56. Plaintiff could not have discovered the harmful conditions concealed within
the walls of the unit.
57. Plaintiff did not know of the existence of mold throughout the unit.
58. Defendants intentionally concealed this fact from Plaintiff.
59, Plaintiff sustained serious injury, and other losses and damages as a result
10: of Defendants' concealment.
13
60. The concealment by defendants was a substantial factor in causing Plaintiff's
12
harm.
13
61. The actions and concealment by defendants, and each of them, were by
14
individuals who on behalf of the defendant entities, who were acting ina management
15
and supervisorial role, were acting on dehalf of the defendant entities, who had
16
advanced knowledge of the harm to Plaintiff when they acted wrongfully. Their actions
1?
constituted malice, oppression or fraud, and were despicable. Plaintiff is thus entitled to
14
recovery of exemplary damages against defendants, and each of them.
19

20
62. The Lease provides for recovery of attorneys fees in four different provisions

al
of the Lease, including in connection with the conditions of the premises. Plaintiff has

22 employed the services of the Law Offices of William C. Dresser to pursue recovery of

23 damages for breach of the covenant of quiet enjoyment, and has incurred legal fees
24 therefore and will continue to incur legal fees and miscellaneous costs. Plaintiff is
25 entitled to and should be awarded her reasonable attorneys’ fees and costs incurred in
26 this matter.
27
WHEREFORE Plaintiff prays for relief as hereinafter set forth.
28

Gilson v GS Almaden, LLC; Santa Clara action 20CV_
Complaint for Damages
1¢)
FIFTH CAUSE OF ACTION
Battery
63. Plaintiff realleges and incorporates herein by this reference as though more
fully set forth the allegations contained in paragraphs 1 through 64 of this Complaint.
65. Defendants, by subjecting Plaintiff to live in an apartment that contained
offensive and injurious mold, but cutting a hole in the wall, by blowing mold throughout
the apartment unit, and by continuing to force Plaintiff to be subjected to offensive and

injurious mold, caused injury to Plaintiff by exposure to toxic bacteria. Defendants
10 intentionally ran commercial blowers for three days spreading mold spores throughout
11 the apartment.
12
66. Plaintiff did not consent to this offensive touching and exposure to offensive
13
and injurious mold.
14
67. Plaintiff sustained serious injury, and other losses and damages as a result
15
of Defendants’ subjecting her to offensive touching and exposure to offensive and
16
injurious mold.
17
68. A reasonable person in Plaintiff's position would have been offended by the
18
offensive touching and exposure to offensive and injurious mold.
19
69. The actions by defendants, and each of them, were by individuals who on
20

21 behalf of the defendant entities, who were acting in a management and supervisorial

22 role, were acting on behalf of the defendant entities, who had advanced knowledge of

23 the harm to Plaintiff when they acted wrongfully. Their actions constituted malice,
24 oppression or fraud, and were despicable. Plaintiff is thus entitled to recovery of
25 exemplary damages against defendants, and each of them.
26 70. The Lease provides for recovery of attorneys fees in four different provisions
2?
of the Lease, including in connection with the conditions of the premises. Plaintiff has
28

Gilson v GS Almaden, LLC; Santa Clara action 20CV_
Complaint for Damages
1y
mee - ee - oe. cir ~~ ane

employed the services of the Law Offices of William C. Dresser to pursue recovery of
damages for breach of the covenant of quiet enjoyment, and has incurred legal fees
woe ee -
therefore and will continue to incur legal fees and miscellaneous costs. Plaintiff is
entitled to and should be awarded her reasonable attorneys’ fees and costs incurred in

this matter
WHEREFORE Plaintiff requests relief as hereinafter set forth

PRAYER FOR RELIEF
Plaintiff prays for relief against Defendants, and each of them, as follows:
16 1. For economic damages and reasonably anticipated personal injuries including
1] economic and non-economic Injures,

12 2 For exemplary damages against defendants and each of them
13
3 For reasonable attorney's fees;
14
4 For costs of suit in this action; and
15
5. For such other and further relief as the Court may deem Proper.,

y ly
16

18 Dated: July$, 2020
19
Willany C. vesser
20 Attorneys for Plaintiff
Katherine Gilson
21

22
Gilson\Pld\Compiaint.709
2

Gilson v GS Almaden LLC Senta Clara action 20CV
Complaint for Damages

Case Info

Judge

Drew C. Takaichi Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

October 08, 2020

Case Filing Date

July 09, 2020

County

Parties

For full print and download access, please subscribe at https://www.trellis.law/.

Clerk Notice: Katherine Gilson vs GS Almaden, LLC. et al

Preview

Related Topics

Case Info

Parties