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MANUEL A. JUAREZ, STATE BAR NO. 200706
2 BAYLAW1@ YAHOO.COM
LAW OFFICES OF MANUEL A. JUAREZ
3 2143 Cedar Street, Suite 200
Berkeley, CA 94709
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Tel / Fax: (510) 841-6164
5
L.M. PARMENTER, STATE BAR NO. 176196
6 LMPARMENTER@ LAWPAR.COM
7 PARMENTER LAW OFFICES
501 B Street, Suite 200
8 San Rafael, CA 94901
Tel / Fax: (415) 738-7901
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10 Attorneys for Plaintiffs
KHALIL MSALAM, ET AL.
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Law Offices of Manuel A. Juarez
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO
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2143 CEDAR STREET, STE. 200
CIVIL UNLIMITED JURISDICTION
Tel/Fax (510)206-4492
Berkeley, CA 94709
14 KHALIL MSALAM, JULNAR MSALAM, CASE NO.: 19-CIV-02602
JAMILAH MSALAM, GHASSAN MSALAM,
15 JAMIE MSALAM, JONATHAN MSALAM, THIRD AMENDED COMPLAINT FOR
DAMAGES
16 ANDREW MSALAM;
1. Negligence
Plaintiffs, 2. Breach of The Warranty of Habitability
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3. Breach of The Covenant of Quiet
vs. Enjoyment
18 4. Tortious Breach of the Covenant of
Quiet Enjoyment
19 5. Intentional Infliction of Emotional
ARIA SARBELAND, individually, in his Distress
20 official capacity and as Trustee of the Aria 6. Unfair Business Practices in
Violation of Business and Professions
Sarbeland Trust, the Martha Fabiola Sarbeland Code Section 17200
21 Trust, and the Sarbeland Trust; MARTHA 7. Nuisance
SARBELAND, individually, in her official 8. Unjust Enrichment
22 9. Breach of Contract
capacity and as Trustee of the Aria Sarbeland 10. Breach of Contract Paragraph 22 of
23 Trust, the Martha Fabiola Sarbeland Trust, and Lease Agreement
the Sarbeland Trust; FREDDIE A. 11. Fraud
24 12. Constructive Eviction
ARELLANO, JR. individually, in his official 13. Bad Faith Retention Of Security
25 capacity, and DOES 4-20 individually and in Deposit
14. Loss of Consortium
their official capacities.
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JURY DEMANDED
27 Defendants.
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Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED
Plaintiffs Khalil Msalam, Julnar Msalam, Jamilah Msalam, Ghassan Msalam, Jamie
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Msalam, Jonathan Msalam, and Andrew Msalam (hereinafter collectively “Plaintiffs”) allege
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against Defendants ARIA SARBELAND, individually, in his official capacity and as Trustee of
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the Aria Sarbeland Trust, the Martha Fabiola Sarbeland Trust, and the Sarbeland Trust; MARTHA
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SARBELAND, individually, in her official capacity and as Trustee of the Aria Sarbeland Trust,
5 the Martha Fabiola Sarbeland Trust, and the Sarbeland Trust; FREDDIE A. ARELLANO, JR.
6 individually, in his official capacity, and DOES 4-20 individually and in their official capacities
7 (collectively, hereinafter “Defendants”); as follows :
8 1. Plaintiffs were residential tenants at a property located at 24 Ottawa Street, San Mateo,
9 California 94401 (“the Subject Property”).
10 2. Plaintiffs’ tenancy commenced on or around August 2010 and ended on or about January
2018 through a constructive eviction.
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3. The Subject Property was a four-bedroom, one-bathroom single family home.
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4. On or about August 2010, Plaintiffs Julnar Msalam and Khalil Msalam entered into a
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residential lease agreement (hereinafter “Lease”) with Defendants Martha Sarbeland, Aria
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Sarbeland and Freddie Arellano, Jr. The Lease was drafted in full by the Defendants and
15 executed by the Defendants Aria Sarbeland and Freddie Arellano, Jr. At the time of move-in,
16 Plaintiffs’ rent was $2,500 per month. Plaintiffs paid a $6,000 security deposit. The Lease is
17 attached to this Complaint as Exhibit A, and herein incorporated by reference.
18 5. As ascertained by the Lease (Exhibit A) which was drafted by Defendants, Defendants
19 misrepresented that the Plaintiffs’ deposit was for $2,500. Instead, Defendants demanded a
20 security deposit of $6,000 from the Plaintiffs that the Plaintiffs were forced to pay by first
providing the $2,500 security deposit to Defendants, as delineated in the Lease, and the
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remaining $3,500 in under the table payoffs paid to the Defendants, and each of them, in
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monthly payments in addition to their rent payments. This was done for several months until
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the Plaintiffs paid off the remaining and additional $3,500 in security deposit.
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6. During this time, Defendants, demanded that the Plaintiffs make all payments to them by
25 cash. These payments were collected by the Defendant Martha Sarbeland in person who would
26 come to the Subject Property each month to collect these rent payments. Defendant Martha
27 Sarbeland informed Plaintiffs that she was demanding cash payments so that the Defendants
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Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED
would not have to declare income to the IRS. At all times, Plaintiffs complied with the
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Defendants demands.
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7. Months after moving into the Subject Property, Defendants became eligible for rental
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assistance with the Housing Authority of the County of San Mateo (hereinafter “Authority”).
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Defendants were fully informed that the Authority would be paying part of the Plaintiffs rent to
5 the Defendants. Defendants provided all necessary documentation to the Authority and based
6 on information and belief made many fraudulent misrepresentations to the Authority in order to
7 be the recipients of these monies and become vendors of the County of San Mateo. In addition,
8 this angered the Defendants as the rental payments from the Authority could not be concealed
9 income, and Defendants were no longer able to demand cash for the full rent.
10 8. As a result of the Plaintiffs receiving aid from the Authority, Defendants began a pattern of
over-billing the Plaintiffs in under the table payoffs and forcing Plaintiffs to pay several
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hundreds of dollars more than the rent which Defendants represented to the Authority was
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being charged to the Plaintiffs for the Subject Property. This resulted in an unlawful and
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fraudulent gain of many thousands of dollars to the Defendants. On many occasions Plaintiffs
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were forced to sign documents such as that found in Exhibit B, by which the Defendants
15 demanded extra, under the table payoffs, in rent and forced them to execute a several
16 documents under threat of being evicted. On many occasions, Plaintiffs were forced to pay
17 thousands of dollars to the Defendants for repairs that by law had to be undertaken and paid for
18 by the Defendants.
19 9. In addition, Plaintiff Jamilah Msalam, the grandmother of the Msalam family, was made to
20 enter into a separate lease agreement with the Defendants by which Defendants demanded that
she pay an additional $500 to $550 per month in rent to the Defendants. Due to financial
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constraints, Plaintiff Jamiliah Msalam was not able to pay these additional amounts demanded
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by the Defendants.
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10. Notwithstanding any of the above, Plaintiffs diligently and promptly paid their rent each
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month and all other under the table payoffs demanded by the Defendants. As afore mentioned,
25 Plaintiffs were also forced to pay for repairs to the dwelling which had to be conducted by the
26 Defendants. Defendants would charge the Plaintiffs many thousands of dollars, pay the day
27 laborers they retained a minimal amount, and then pocket the monies for themselves – thereby
28 also committing fraud and theft. Defendants never served the Plaintiffs with any notices related
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Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED
to an eviction such as a three-day notice, or commenced any eviction actions against the
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Plaintiffs.
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11. On or about September 2012, Defendants increased the Plaintiffs rent to the amount of
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$2,800.
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12. On or about June 2015, Plaintiffs monthly rent was increased to the amount of $3,600.
5 13. On or about 2017, a few months before the Plaintiffs were constructively evicted, Plaintiffs
6 were forced to pay over $3,000 to repair the plumbing and the open sewage, with human waste,
7 permeating throughout the underneath of the dwelling (sewage infested pool of toxic
8 substances) that was beneath the Subject Property due to the Defendants deficient and
9 dilapidated plumbing which they refused to repair. Defendants retained a non-licensed
10 handyman to work on the plumbing. The plumbing and sewage (with human excrement)
continued to over-flow and pool up underneath the Subject Property despite the Defendants
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forcing the Plaintiffs to pay them $3,000 for plumbing which was the full responsibility of the
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Defendants. Defendants failed to retain the services of competent professionals and the feces /
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sewer infestation continued which, inter alia, resulted in nauseating, unsafe, toxic and unhealthy
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fumes permeating the dwelling of the Plaintiffs on a continuous basis with the Defendants
15 refusing to take any responsibility.
16 14. From the commencement of the Plaintiffs tenancy until the Plaintiffs were constructively
17 evicted on or about January 2018, Plaintiffs are informed and believe, and thereon allege, that
18 the Subject Premises was owned managed, controlled, etc., by the Defendants ARIA
19 SARBELAND, individually, in his official capacity and as Trustee of the Aria Sarbeland Trust,
20 the Martha Fabiola Sarbeland Trust, and the Sarbeland Trust; MARTHA SARBELAND,
individually, in her official capacity and as Trustee of the Aria Sarbeland Trust, the Martha
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Fabiola Sarbeland Trust, and the Sarbeland Trust; FREDDIE A. ARELLANO, JR. individually,
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in his official capacity, and DOES 4-20 individually and in their official capacities Plaintiffs
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are informed and believe, and thereupon allege, that Defendants acted as property managers for
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the Subject Property, and they were responsible in some manner for the occurrences herein
25 alleged, and that Plaintiffs’ damages as herein alleged, were proximately caused by them.
26 15. Plaintiffs are ignorant of the true names, involvement, or capacities of the Doe Defendants,
27 not named as of this Complaint. Plaintiffs are informed and believe that each DOE Defendant is
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Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED
in some way responsible for Plaintiffs' damages. Plaintiffs will amend this complaint when they
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learn the true names of the DOE Defendants.
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16. Every Defendant, and each of them, instigated, encouraged, promoted, aided and abetted,
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and/or rendered substantial assistance to the wrongdoing alleged herein, with knowledge of the
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wrong and the role that each defendant played in it. Every Defendant, and each of them,
5 conspired to commit that wrongdoing which is alleged herein to have been intentional, with
6 knowledge of the wrongful purpose of the wrongdoing, by and in contravention of their duties,
7 actively participating in the wrongdoing, failing to stop or prevent the wrongdoing from
8 occurring or continuing, and/or actively participating in the concealment and non-disclosure of
9 the wrongdoing.
10 17. Plaintiffs are informed and believe, and thereupon allege, that at all times relevant to the
Complaint, there existed a unity of interests between certain of the Defendants such that any
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individuality and separateness between these certain Defendants has ceased, and those certain
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Defendants are the alter ego of the other certain Defendants and exerted control over each other.
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Adherence to the fiction of the separate existence of these certain Defendants will promote
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injustice.
15 18. Plaintiffs contend that all workers, agents, employees that the Defendants sent into the
16 Subject Property to conduct construction, repairs, remodeling, etc., were Defendants’
17 employees and agents at the time of the occurrences of this Complaint.
18 19. This Court is the proper jurisdiction for this Complaint because the Subject Premises is in its
19 jurisdictional area, Plaintiffs were subject to a residential rental agreement in its jurisdictional
20 area, and Defendants conduct business in its jurisdictional area, and Plaintiffs were injured in its
jurisdictional area.
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20. The amount in controversy is within the jurisdiction of this Court.
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Agency and Concert of Action
23 21. At all times relevant hereto, each of the Defendants was the agent, servant, employee,
24 partner, aider and abettor, contractor, subcontractor, co-conspirator and/or joint venturer of each
25 of the remaining Defendants named herein and were at all times operating and acting within the
26 purpose, course and scope of said agency, service, employment, partnership, conspiracy,
27 contract, alter ego and/or joint venture, and with the permission and consent of their co-
Defendants.
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Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED
22. Each Defendant has rendered substantial assistance and encouragement to the other
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Defendants, knowing that their conduct was wrongful and/or unlawful, and each Defendant has
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ratified and approved the acts of each of the remaining Defendants.
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Joint and Several Liability
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23. The acts and omissions of Defendants, and each of them, as set forth in this Complaint
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combined to proximately cause the injuries and damages sustained by the Plaintiffs. Thus,
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Defendants are jointly and severally liable to the Plaintiffs for the full amo unt of Plaintiffs’
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compensatory damages, special damages, past and future medical expenses, mental and
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physical pain and suffering.
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Punitive Damages Allegation
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24. Defendants, and each of them, as below indicated, acted with oppression, fraud and/or
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malice in that, among other things, they acted with a willful and conscious disregard for
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the rights and safety of the Plaintiffs.
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25. Defendants, and each of them, acted with malice, oppression and/or fraud in that, among
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other things, they acted with a willful and conscious disregard for the rights and safety of
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the Plaintiffs despite knowing the risk of serious injury or death that could likely result
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from the unsafe and dangerous condition of the Subject Property.
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26. Defendants, and each of them, knew or should have known that the conditions at the
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Subject Property were a safety hazard that posed a danger to human life, including but not
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limited to:
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a) Ongoing feces/sewer infestation underneath dwelling with toxic fumes emanating
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into the Plaintiffs dwelling continuously;
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b) Nonfunctioning / inadequate heater at the dwelling with the Plaintiffs suffering
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continuous frigid temperatures inside their home, especially at night;
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c) Ongoing cockroach and ant infestations;
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d) Water and frigid air intrusion into the dwelling of the Plaintiffs;
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e) Horrific rodent infestation with dead rodent carcasses in the dwelling creating
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nauseating odors in the Plaintiffs’ dwelling and large swarms of flies;
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1 f) Mold and mildew infestation with associated foul smells;
2 g) Faulty plumbing and raw sewage conditions;
3 h) Harassment and trespass through constant dangerous construction work and
4 Defendants’ constant at will entry without notice to the Plaintiffs. By way of
5 example of this abusive misconduct, on one such occasion Aria Sarbeland entered
6 the Plaintiffs’ dwelling to find Julnar Msalam in a state of undress as she had just
7 gotten out of the shower. Based on information and belief this was done to sexually
8 harass the Plaintiff and intimidate her;
9 i) Unsafely, recklessly and maliciously failing to warn the Plaintiffs of the danger of
10 the Defendants’ unlicensed and unpermitted day laborers/ handymen, and workers
11 they picked up off the streets to conduct work upon the Subject Property, among
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12 other dangerous conditions.
13 Purposefully and maliciously failing to obtain insurance for the Plaintiffs’ dwelling
2143 CEDAR STREET, STE. 200
j)
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14 and maliciously lying to the Plaintiffs, the Authority, and the State Farm Insurance
15 Co., for years regarding the rental of the Subject Premises to the Plaintiff Family.
16 All done to commit fraud upon the Plaintiffs, insurance fraud, tax fraud and other
17 forms of fraud. Had the Plaintiffs been informed of the truth with regards to the
18 misrepresentation regarding insurance, they would never have leased the Subject
19 Property from the Defendants.
20 k) Unsafely, recklessly and maliciously failing to remove the Plaintiffs from the
21 danger of the Defendants’ unlicensed and unpermitted day laborers/ handymen, and
22 workers they retained off the streets to conduct work, construction, remolding, etc,
23 upon the delipidated Subject Property, among other dangerous conditions, by failing
24 to remove Plaintiffs to a safe place, such as a hotel.
25 27. Defendants, and each of them, also had advanced knowledge that the af orementioned
26 could and/or would result in the probability of dangerous, unsafe and unhealthy conditions,
27 which foreseeably would lead to harm and/or injuries to the health and safety of the
28 Plaintiffs. Defendants, and each of them, intentionally chose not to take reasonable steps
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Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED
1 to make the Subject Property safe for the Plaintiffs. With respect to those Defendants who
2 presented the Subject Property as being insured, in so presenting, they engaged in
3 fraudulent conduct intended to deceive the Plaintiffs and others by misrepresenting and
4 concealing the dangerous conditions of the Subject Property and the fact that there was no
5 insurance coverage for the Plaintiffs for the acts and omissions of the Defendants.
6 28. Defendants, by themselves and/or through their employees and/or agents, acted with
7 malice in that their despicable conduct which was carried on with a willful and conscious
8 disregard of the rights or safety of the Plaintiffs. The term “malice” includes conduct
9 evincing a conscious disregard of the probability that the Defendants’ conduct will result in
10 injury to others. See Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757.
11 Defendants’ conduct was so vile, base or contemptible that it would be looked down on
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12 and despised by reasonable people.
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29. Defendants, by themselves and/or through their employees and/or agents, acted with
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14 oppression in that their despicable conduct subjected the Plaintiffs to cruel and unjust
15 hardship in conscious disregard of their rights. “Oppression” in Civil Code Section 3294
16 “means despicable conduct that subjects a person to cruel and unjust hardship in conscious
17 disregard of that person's rights.” “Conscious disregard” for purposes of proving
18 “oppression” does not require “willful” actions. Cal. Civ. Code § 3294(c)(2); CACI 3940
19 & 3941; Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1225-1226. 135.
20 Defendants knew that their despicable conduct, as described herein, would likely and
21 within a high degree of probability cause harm to the Plaintiffs.
22 30. The conduct of Defendants, and each of them, as set forth herein, was fraudulent in that
23 each of them engaged in intentional misrepresentations, deceit, or concealment of material
24 facts known to them. That information was fraudulently withheld from the Plaintiffs.
25 31. Defendants, and each of their employees’ and/or agents’ egregious conduct, including
26 malice, oppression and fraud, were substantial factors in causing the incident s herein
27 alleged and the Plaintiffs’ injuries and/or damages. An officer, a director, and/or a
28 managing agent of Defendants, and each of them, authorized the employees’ or agents’
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Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED
1 wrongful conduct, and/or adopted, ratified or approved the conduct after it occurred.
2 32. An award of punitive damages in a sum according to proof at trial is, therefore,
3 justified, warranted and appropriate under the facts and circumstances of this case, and to
4 punish or set an example of Defendants and deter such behavior by Defendants and others
5 in the future.
6 33. With respect to the Plaintiffs claiming personal injuries, said Plaintiffs make the
7 following punitive damages allegations: The conduct of Defendants was fraudulent,
8 oppressive and/or malicious as defined under California Civil Code 3294 and/or was
9 ratified by the officers, directors and/or managing agents of Defendants so as to warrant
10 the imposition of punitive damages in an amount to be determined at the time of trial.
11 Further, Plaintiffs incorporate all paragraphs of this Complaint regarding punitive damages
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12 herein as though fully set forth.
Plaintiffs, Herewith, Are Enforcing an Important
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Right Affecting Public Interest
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14 34. Plaintiffs, inter alia, are entitled to their attorney fees and costs in this matter pursuant
15 to Code of Civil Procedure section 1021.5, in that they are enforcing, herewith, an
16 important right affecting the public interest.
17 Defendants’ Insurance Fraud
18 35. In addition to bypassing and defrauding the Plaintiffs, the Housing Authority of the County
of San Mateo, Defendants were also actively defrauding other entities by falsely claiming that
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the Subject Property was owner occupied by the Defendants. At all times relevant the
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Defendants knew this was a false and they the Subject Property was being rented to the
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Plaintiffs. This was done firstly to defraud the Plaintiffs into moving into the Subject Property
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and continue to reside at the Subject Property and to continue to derive rental payments from
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the Plaintiffs for years, in addition to gain lower interest rates with banking institutions, defraud
24 taxation authorities by failing to report the income that the Defendants received each month
25 from the Plaintiffs. Defendants continuously demanded from the Plaintiffs under the table
26 payoffs which they concealed from the Authority in order to bypass the Authority and to
27 defraud. At all times relevant, and for many years, the Defendants lied to the State Farm
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Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED
Insurance Co., and falsely claimed to them that Defendants were inhabiting the Subject
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Property when in fact they were renting the Subject Property to the Plaintiff family.
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36. In order to implement their defrauding activities, Defendants devised schemes by which they
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would rush to the Plaintiffs’ dwelling (the Subject Property) in order to pretend they were the
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ones occupying the Subject Property and that they were living there. During these times, the
5 Plaintiffs were instructed to keep their “mouths shut” and permit the Defendants, especially
6 Martha Sarbeland, to be the person that spoke to the individuals that came to the Plaintiffs’
7 dwelling to inspect and conduct other business regarding the Subject Property.
8 37. The written lease agreement (a copy of said written agreement is attached hereto as
9 Attachment A and incorporated herein by reference) at Paragraph Number 22, specifically
10 states that the Defendants herein obtained insurance to cover them for the causes of action
alleged herein in this Complaint.
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15 Excerpt from Defendants’ own written lease agreement, Attachment A.
16 38. For many reasons, at no point whatsoever would the Plaintiffs have agreed to rent the
17 Subject Property from the Defendants had they not been specifically assured by the Defendants
18 that they had full insurance coverage for the Subject Property.
39. At no point would the Authority have permitted the Plaintiffs to move into the Subject
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Property had they not been assured by the Defendants that the Subject Property had full liability
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insurance.
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40. At all times relevant to this Complaint, the Defendants intentionally defrauded the Plaintiffs
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and many other entities by misrepresenting that they had insurance coverage as set forth in the
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lease agreement (at Paragraph 22) which was drafted the Defendants. The Defendants
24 continuously lied to their insurance carrier and falsely informed them that the Subject Property
25 was owner occupied by the Defendants. The Defendants also lied and stated that they were not
26 renting the Subject Property to the Plaintiffs.
27 //
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Habitability Issues at the Subject Property
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41. Throughout Plaintiffs' tenancy, they faced ongoing habitability defects. Plaintiffs complained
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about the following defects, and/or Defendants should have known about these defects, but
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Defendants failed to address Plaintiffs' complaints or failed to adequately remediate the defects.
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The habitability, health, and safety defects included, but were not limited to, the following:
5 A. No Functioning / Adequate Heater – Frigid Temperatures
6 42. The Plaintiffs’ dwelling had no functioning / adequate heater. When Plaintiffs moved into
7 the dwelling, the heater looked like it had been burned out by the previous inhabitants and never
8 properly or adequately repaired to be able to properly heat the dwelling.
9 43. As a consequence, Plaintiffs’ dwelling became extremely frigid and cold even during the
10 City of San Mateo’s summer time; during the winter months the temperatures often dropped to
the low- 30-40s. Thereafter, some repairs were attempted by the Defendants which resulted in
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an extremely small amount of heat to come out of the heater which was in no manner adequate
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to heat the four-bedroom Subject Property.
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44. As a consequence of not having a functioning / adequate heater, Plaintiffs were made to
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suffer excessively cold and frigid temperatures. Plaintiffs often slept fully clothed with jackets
15 and heavy blankets and caps on. Plaintiffs often needed to wear heavy winter clothing and
16 winter coats and hats while at home eating, watching TV, etc. the frigid temperatures caused
17 Plaintiffs substantial physical harm, extreme emotional distress and loss of quality of life.
18 Plaintiffs often felt ill, had sore throats, experienced heavy coughing, nasal congestion, and
19 shaking chills.
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B. Water and Frigid Air Intrusion from Windows / Cracks-Openings
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45. The lack of adequate heater at the Plaintiffs’ dwelling was severely exacerbated by the frigid
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air intrusion from the windows and openings /cracks in the walls/ceilings and their delipidated
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condition. The window situation at the Plaintiffs’ dwelling was akin to having an inoperable
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open window which could never be properly closed. As such, Plaintiffs endured conditions of
5 frigid cold in addition to a lack of adequate heater at the dwelling. There were ever present
6 drafts and frigid cold air that came in through the windows of the dwelling. In addition, there
7 were cracks or openings in the walls and windows which permitted icy air to constantly
8 penetrate the Plaintiffs’ dwelling and made environmental temperature control of the home
9 impossible.
10 46. The windows were in such a state of disrepair that rainfall would intrude into the interior of
the Plaintiffs’ dwelling whenever there was rainfall.
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47. The frequent water intrusion also contributed to soaked flooring in the Subject Property
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which developed mold and an odor of mold and mildew.
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14 C. Cockroach and Ant Infestation
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48. The Plaintiffs’ dwelling was infested with cockroaches and on other occasions infested with
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ants. The unsanitary and dilapidated condition of the Defendants’ Subject Property created a
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perfect environment for cockroaches to proliferate and the poor construction and delipidated
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conditions provided ample holes, cracks, and crevices for the cockroaches to spread throughout
19 dwelling.
20 49. The anxiety that came from knowing that their dwelling was crawling with cockroaches
21 made a restful night’s sleep very difficult for the Plaintiffs, especially the minor Plaintiffs.
22 50. Plaintiffs also frequently encountered ant infestations in their dwelling. The ants would
23 invade any food that was left out and contaminate it – necessitating that the food be discarded.
24 Plaintiff Julnar Msalam also reported plagues of ants that came and went from their dwelling’s
kitchen area.
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D. Rodent Infestation
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51. Plaintiffs also frequently encountered rodents throughout their dwelling. Plaintiffs also
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complained to Defendants about the regular occurrence of rodents and were ignored. In the
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same manner that the cockroaches left their feces, the rodents also deposited their fecal matter
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and urine throughout the entirely of the Plaintiffs’ home. This included finding rodent feces on
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bedding and pillow and throughout the kitchen area.
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3 52. As stated, the Plaintiff family was horrified to find rodent feces and urination on their
4 food, clothing, pillows and bedding. The rodents would also die beneath the home in
5 stagnant water / stagnant sewer area, in the walls, etc. resulting in an even greater stench
6 throughout.
E. Mold Contamination
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53. The Subject Property also had pervasive mold growth throughout the Plaintiffs’ dwelling.
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Plaintiffs are informed and believe and, on that basis, allege that the mold growth included
9 mold harmful to human health. The Plaintiffs constantly found mold on the floors, carpet, walls,
10 and ceilings of their home. Despite regular attempts to clean the visible mold within their
11 dwelling, the mold reappeared because the contamination is entrenched within the Subject
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12 Property.
13 54. The mold was exacerbated by the dilapidated conditions of the Defendants’ Subject
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14 Property. For example, the windows and lack of adequate heating exacerbated the growth of
mold and mildew.
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Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED
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9 F. Open Sewage / Ongoing Constant Water /Sewer Stagnation
10 Beneath Dwelling with Dead Animals
55. At all times relevant the Subject Property had open sewage, with human waste, permeating
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Law Offices of Manuel A. Juarez
throughout the underneath of the dwelling. Also, this human waste would often come up into
12 the Subject Property’s bathroom through defective pipes resulting in complete revulsion and an
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2143 CEDAR STREET, STE. 200
extremely unhealthy living environment for the Plaintiff family.
Tel/Fax (510)206-4492
Berkeley, CA 94709
14 56. As set forth above, there was continuous stagnant water beneath the dwelling with raw
15 sewage including fecal matter and dead animals such as rodents dying in the stagnant water and
16 decomposing and creating and even greater putrid odors inside the Subject Property.
17 G. Faulty Plumbing and Raw Sewage
57. To make matters worse, the drainage system at the Plaintiffs’ dwelling was in such disrepair
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Preview
1 MANUEL A. JUAREZ, STATE BAR NO. 200706 2 BAYLAW1@ YAHOO.COM LAW OFFICES OF MANUEL A. JUAREZ 3 2143 Cedar Street, Suite 200 Berkeley, CA 94709 4 Tel / Fax: (510) 841-6164 5 L.M. PARMENTER, STATE BAR NO. 176196 6 LMPARMENTER@ LAWPAR.COM 7 PARMENTER LAW OFFICES 501 B Street, Suite 200 8 San Rafael, CA 94901 Tel / Fax: (415) 738-7901 9 10 Attorneys for Plaintiffs KHALIL MSALAM, ET AL. 11 Law Offices of Manuel A. Juarez 12 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO 13 2143 CEDAR STREET, STE. 200 CIVIL UNLIMITED JURISDICTION Tel/Fax (510)206-4492 Berkeley, CA 94709 14 KHALIL MSALAM, JULNAR MSALAM, CASE NO.: 19-CIV-02602 JAMILAH MSALAM, GHASSAN MSALAM, 15 JAMIE MSALAM, JONATHAN MSALAM, THIRD AMENDED COMPLAINT FOR DAMAGES 16 ANDREW MSALAM; 1. Negligence Plaintiffs, 2. Breach of The Warranty of Habitability 17 3. Breach of The Covenant of Quiet vs. Enjoyment 18 4. Tortious Breach of the Covenant of Quiet Enjoyment 19 5. Intentional Infliction of Emotional ARIA SARBELAND, individually, in his Distress 20 official capacity and as Trustee of the Aria 6. Unfair Business Practices in Violation of Business and Professions Sarbeland Trust, the Martha Fabiola Sarbeland Code Section 17200 21 Trust, and the Sarbeland Trust; MARTHA 7. Nuisance SARBELAND, individually, in her official 8. Unjust Enrichment 22 9. Breach of Contract capacity and as Trustee of the Aria Sarbeland 10. Breach of Contract Paragraph 22 of 23 Trust, the Martha Fabiola Sarbeland Trust, and Lease Agreement the Sarbeland Trust; FREDDIE A. 11. Fraud 24 12. Constructive Eviction ARELLANO, JR. individually, in his official 13. Bad Faith Retention Of Security 25 capacity, and DOES 4-20 individually and in Deposit 14. Loss of Consortium their official capacities. 26 JURY DEMANDED 27 Defendants. 28 -1- ___________________________________________ Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED Plaintiffs Khalil Msalam, Julnar Msalam, Jamilah Msalam, Ghassan Msalam, Jamie 1 Msalam, Jonathan Msalam, and Andrew Msalam (hereinafter collectively “Plaintiffs”) allege 2 against Defendants ARIA SARBELAND, individually, in his official capacity and as Trustee of 3 the Aria Sarbeland Trust, the Martha Fabiola Sarbeland Trust, and the Sarbeland Trust; MARTHA 4 SARBELAND, individually, in her official capacity and as Trustee of the Aria Sarbeland Trust, 5 the Martha Fabiola Sarbeland Trust, and the Sarbeland Trust; FREDDIE A. ARELLANO, JR. 6 individually, in his official capacity, and DOES 4-20 individually and in their official capacities 7 (collectively, hereinafter “Defendants”); as follows : 8 1. Plaintiffs were residential tenants at a property located at 24 Ottawa Street, San Mateo, 9 California 94401 (“the Subject Property”). 10 2. Plaintiffs’ tenancy commenced on or around August 2010 and ended on or about January 2018 through a constructive eviction. 11 Law Offices of Manuel A. Juarez 3. The Subject Property was a four-bedroom, one-bathroom single family home. 12 4. On or about August 2010, Plaintiffs Julnar Msalam and Khalil Msalam entered into a 13 2143 CEDAR STREET, STE. 200 residential lease agreement (hereinafter “Lease”) with Defendants Martha Sarbeland, Aria Tel/Fax (510)206-4492 Berkeley, CA 94709 14 Sarbeland and Freddie Arellano, Jr. The Lease was drafted in full by the Defendants and 15 executed by the Defendants Aria Sarbeland and Freddie Arellano, Jr. At the time of move-in, 16 Plaintiffs’ rent was $2,500 per month. Plaintiffs paid a $6,000 security deposit. The Lease is 17 attached to this Complaint as Exhibit A, and herein incorporated by reference. 18 5. As ascertained by the Lease (Exhibit A) which was drafted by Defendants, Defendants 19 misrepresented that the Plaintiffs’ deposit was for $2,500. Instead, Defendants demanded a 20 security deposit of $6,000 from the Plaintiffs that the Plaintiffs were forced to pay by first providing the $2,500 security deposit to Defendants, as delineated in the Lease, and the 21 remaining $3,500 in under the table payoffs paid to the Defendants, and each of them, in 22 monthly payments in addition to their rent payments. This was done for several months until 23 the Plaintiffs paid off the remaining and additional $3,500 in security deposit. 24 6. During this time, Defendants, demanded that the Plaintiffs make all payments to them by 25 cash. These payments were collected by the Defendant Martha Sarbeland in person who would 26 come to the Subject Property each month to collect these rent payments. Defendant Martha 27 Sarbeland informed Plaintiffs that she was demanding cash payments so that the Defendants 28 -2- ___________________________________________ Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED would not have to declare income to the IRS. At all times, Plaintiffs complied with the 1 Defendants demands. 2 7. Months after moving into the Subject Property, Defendants became eligible for rental 3 assistance with the Housing Authority of the County of San Mateo (hereinafter “Authority”). 4 Defendants were fully informed that the Authority would be paying part of the Plaintiffs rent to 5 the Defendants. Defendants provided all necessary documentation to the Authority and based 6 on information and belief made many fraudulent misrepresentations to the Authority in order to 7 be the recipients of these monies and become vendors of the County of San Mateo. In addition, 8 this angered the Defendants as the rental payments from the Authority could not be concealed 9 income, and Defendants were no longer able to demand cash for the full rent. 10 8. As a result of the Plaintiffs receiving aid from the Authority, Defendants began a pattern of over-billing the Plaintiffs in under the table payoffs and forcing Plaintiffs to pay several 11 Law Offices of Manuel A. Juarez hundreds of dollars more than the rent which Defendants represented to the Authority was 12 being charged to the Plaintiffs for the Subject Property. This resulted in an unlawful and 13 2143 CEDAR STREET, STE. 200 Tel/Fax (510)206-4492 fraudulent gain of many thousands of dollars to the Defendants. On many occasions Plaintiffs Berkeley, CA 94709 14 were forced to sign documents such as that found in Exhibit B, by which the Defendants 15 demanded extra, under the table payoffs, in rent and forced them to execute a several 16 documents under threat of being evicted. On many occasions, Plaintiffs were forced to pay 17 thousands of dollars to the Defendants for repairs that by law had to be undertaken and paid for 18 by the Defendants. 19 9. In addition, Plaintiff Jamilah Msalam, the grandmother of the Msalam family, was made to 20 enter into a separate lease agreement with the Defendants by which Defendants demanded that she pay an additional $500 to $550 per month in rent to the Defendants. Due to financial 21 constraints, Plaintiff Jamiliah Msalam was not able to pay these additional amounts demanded 22 by the Defendants. 23 10. Notwithstanding any of the above, Plaintiffs diligently and promptly paid their rent each 24 month and all other under the table payoffs demanded by the Defendants. As afore mentioned, 25 Plaintiffs were also forced to pay for repairs to the dwelling which had to be conducted by the 26 Defendants. Defendants would charge the Plaintiffs many thousands of dollars, pay the day 27 laborers they retained a minimal amount, and then pocket the monies for themselves – thereby 28 also committing fraud and theft. Defendants never served the Plaintiffs with any notices related -3- ___________________________________________ Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED to an eviction such as a three-day notice, or commenced any eviction actions against the 1 Plaintiffs. 2 11. On or about September 2012, Defendants increased the Plaintiffs rent to the amount of 3 $2,800. 4 12. On or about June 2015, Plaintiffs monthly rent was increased to the amount of $3,600. 5 13. On or about 2017, a few months before the Plaintiffs were constructively evicted, Plaintiffs 6 were forced to pay over $3,000 to repair the plumbing and the open sewage, with human waste, 7 permeating throughout the underneath of the dwelling (sewage infested pool of toxic 8 substances) that was beneath the Subject Property due to the Defendants deficient and 9 dilapidated plumbing which they refused to repair. Defendants retained a non-licensed 10 handyman to work on the plumbing. The plumbing and sewage (with human excrement) continued to over-flow and pool up underneath the Subject Property despite the Defendants 11 Law Offices of Manuel A. Juarez forcing the Plaintiffs to pay them $3,000 for plumbing which was the full responsibility of the 12 Defendants. Defendants failed to retain the services of competent professionals and the feces / 13 2143 CEDAR STREET, STE. 200 Tel/Fax (510)206-4492 sewer infestation continued which, inter alia, resulted in nauseating, unsafe, toxic and unhealthy Berkeley, CA 94709 14 fumes permeating the dwelling of the Plaintiffs on a continuous basis with the Defendants 15 refusing to take any responsibility. 16 14. From the commencement of the Plaintiffs tenancy until the Plaintiffs were constructively 17 evicted on or about January 2018, Plaintiffs are informed and believe, and thereon allege, that 18 the Subject Premises was owned managed, controlled, etc., by the Defendants ARIA 19 SARBELAND, individually, in his official capacity and as Trustee of the Aria Sarbeland Trust, 20 the Martha Fabiola Sarbeland Trust, and the Sarbeland Trust; MARTHA SARBELAND, individually, in her official capacity and as Trustee of the Aria Sarbeland Trust, the Martha 21 Fabiola Sarbeland Trust, and the Sarbeland Trust; FREDDIE A. ARELLANO, JR. individually, 22 in his official capacity, and DOES 4-20 individually and in their official capacities Plaintiffs 23 are informed and believe, and thereupon allege, that Defendants acted as property managers for 24 the Subject Property, and they were responsible in some manner for the occurrences herein 25 alleged, and that Plaintiffs’ damages as herein alleged, were proximately caused by them. 26 15. Plaintiffs are ignorant of the true names, involvement, or capacities of the Doe Defendants, 27 not named as of this Complaint. Plaintiffs are informed and believe that each DOE Defendant is 28 -4- ___________________________________________ Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED in some way responsible for Plaintiffs' damages. Plaintiffs will amend this complaint when they 1 learn the true names of the DOE Defendants. 2 16. Every Defendant, and each of them, instigated, encouraged, promoted, aided and abetted, 3 and/or rendered substantial assistance to the wrongdoing alleged herein, with knowledge of the 4 wrong and the role that each defendant played in it. Every Defendant, and each of them, 5 conspired to commit that wrongdoing which is alleged herein to have been intentional, with 6 knowledge of the wrongful purpose of the wrongdoing, by and in contravention of their duties, 7 actively participating in the wrongdoing, failing to stop or prevent the wrongdoing from 8 occurring or continuing, and/or actively participating in the concealment and non-disclosure of 9 the wrongdoing. 10 17. Plaintiffs are informed and believe, and thereupon allege, that at all times relevant to the Complaint, there existed a unity of interests between certain of the Defendants such that any 11 Law Offices of Manuel A. Juarez individuality and separateness between these certain Defendants has ceased, and those certain 12 Defendants are the alter ego of the other certain Defendants and exerted control over each other. 13 2143 CEDAR STREET, STE. 200 Tel/Fax (510)206-4492 Adherence to the fiction of the separate existence of these certain Defendants will promote Berkeley, CA 94709 14 injustice. 15 18. Plaintiffs contend that all workers, agents, employees that the Defendants sent into the 16 Subject Property to conduct construction, repairs, remodeling, etc., were Defendants’ 17 employees and agents at the time of the occurrences of this Complaint. 18 19. This Court is the proper jurisdiction for this Complaint because the Subject Premises is in its 19 jurisdictional area, Plaintiffs were subject to a residential rental agreement in its jurisdictional 20 area, and Defendants conduct business in its jurisdictional area, and Plaintiffs were injured in its jurisdictional area. 21 20. The amount in controversy is within the jurisdiction of this Court. 22 Agency and Concert of Action 23 21. At all times relevant hereto, each of the Defendants was the agent, servant, employee, 24 partner, aider and abettor, contractor, subcontractor, co-conspirator and/or joint venturer of each 25 of the remaining Defendants named herein and were at all times operating and acting within the 26 purpose, course and scope of said agency, service, employment, partnership, conspiracy, 27 contract, alter ego and/or joint venture, and with the permission and consent of their co- Defendants. 28 -5- ___________________________________________ Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED 22. Each Defendant has rendered substantial assistance and encouragement to the other 1 Defendants, knowing that their conduct was wrongful and/or unlawful, and each Defendant has 2 ratified and approved the acts of each of the remaining Defendants. 3 Joint and Several Liability 4 23. The acts and omissions of Defendants, and each of them, as set forth in this Complaint 5 combined to proximately cause the injuries and damages sustained by the Plaintiffs. Thus, 6 Defendants are jointly and severally liable to the Plaintiffs for the full amo unt of Plaintiffs’ 7 compensatory damages, special damages, past and future medical expenses, mental and 8 physical pain and suffering. 9 Punitive Damages Allegation 10 24. Defendants, and each of them, as below indicated, acted with oppression, fraud and/or 11 Law Offices of Manuel A. Juarez malice in that, among other things, they acted with a willful and conscious disregard for 12 the rights and safety of the Plaintiffs. 13 2143 CEDAR STREET, STE. 200 Tel/Fax (510)206-4492 25. Defendants, and each of them, acted with malice, oppression and/or fraud in that, among Berkeley, CA 94709 14 other things, they acted with a willful and conscious disregard for the rights and safety of 15 the Plaintiffs despite knowing the risk of serious injury or death that could likely result 16 from the unsafe and dangerous condition of the Subject Property. 17 26. Defendants, and each of them, knew or should have known that the conditions at the 18 Subject Property were a safety hazard that posed a danger to human life, including but not 19 limited to: 20 a) Ongoing feces/sewer infestation underneath dwelling with toxic fumes emanating 21 into the Plaintiffs dwelling continuously; 22 b) Nonfunctioning / inadequate heater at the dwelling with the Plaintiffs suffering 23 continuous frigid temperatures inside their home, especially at night; 24 c) Ongoing cockroach and ant infestations; 25 d) Water and frigid air intrusion into the dwelling of the Plaintiffs; 26 e) Horrific rodent infestation with dead rodent carcasses in the dwelling creating 27 nauseating odors in the Plaintiffs’ dwelling and large swarms of flies; 28 -6- ___________________________________________ Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED 1 f) Mold and mildew infestation with associated foul smells; 2 g) Faulty plumbing and raw sewage conditions; 3 h) Harassment and trespass through constant dangerous construction work and 4 Defendants’ constant at will entry without notice to the Plaintiffs. By way of 5 example of this abusive misconduct, on one such occasion Aria Sarbeland entered 6 the Plaintiffs’ dwelling to find Julnar Msalam in a state of undress as she had just 7 gotten out of the shower. Based on information and belief this was done to sexually 8 harass the Plaintiff and intimidate her; 9 i) Unsafely, recklessly and maliciously failing to warn the Plaintiffs of the danger of 10 the Defendants’ unlicensed and unpermitted day laborers/ handymen, and workers 11 they picked up off the streets to conduct work upon the Subject Property, among Law Offices of Manuel A. Juarez 12 other dangerous conditions. 13 Purposefully and maliciously failing to obtain insurance for the Plaintiffs’ dwelling 2143 CEDAR STREET, STE. 200 j) Tel/Fax (510)206-4492 Berkeley, CA 94709 14 and maliciously lying to the Plaintiffs, the Authority, and the State Farm Insurance 15 Co., for years regarding the rental of the Subject Premises to the Plaintiff Family. 16 All done to commit fraud upon the Plaintiffs, insurance fraud, tax fraud and other 17 forms of fraud. Had the Plaintiffs been informed of the truth with regards to the 18 misrepresentation regarding insurance, they would never have leased the Subject 19 Property from the Defendants. 20 k) Unsafely, recklessly and maliciously failing to remove the Plaintiffs from the 21 danger of the Defendants’ unlicensed and unpermitted day laborers/ handymen, and 22 workers they retained off the streets to conduct work, construction, remolding, etc, 23 upon the delipidated Subject Property, among other dangerous conditions, by failing 24 to remove Plaintiffs to a safe place, such as a hotel. 25 27. Defendants, and each of them, also had advanced knowledge that the af orementioned 26 could and/or would result in the probability of dangerous, unsafe and unhealthy conditions, 27 which foreseeably would lead to harm and/or injuries to the health and safety of the 28 Plaintiffs. Defendants, and each of them, intentionally chose not to take reasonable steps -7- ___________________________________________ Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED 1 to make the Subject Property safe for the Plaintiffs. With respect to those Defendants who 2 presented the Subject Property as being insured, in so presenting, they engaged in 3 fraudulent conduct intended to deceive the Plaintiffs and others by misrepresenting and 4 concealing the dangerous conditions of the Subject Property and the fact that there was no 5 insurance coverage for the Plaintiffs for the acts and omissions of the Defendants. 6 28. Defendants, by themselves and/or through their employees and/or agents, acted with 7 malice in that their despicable conduct which was carried on with a willful and conscious 8 disregard of the rights or safety of the Plaintiffs. The term “malice” includes conduct 9 evincing a conscious disregard of the probability that the Defendants’ conduct will result in 10 injury to others. See Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757. 11 Defendants’ conduct was so vile, base or contemptible that it would be looked down on Law Offices of Manuel A. Juarez 12 and despised by reasonable people. 13 2143 CEDAR STREET, STE. 200 29. Defendants, by themselves and/or through their employees and/or agents, acted with Tel/Fax (510)206-4492 Berkeley, CA 94709 14 oppression in that their despicable conduct subjected the Plaintiffs to cruel and unjust 15 hardship in conscious disregard of their rights. “Oppression” in Civil Code Section 3294 16 “means despicable conduct that subjects a person to cruel and unjust hardship in conscious 17 disregard of that person's rights.” “Conscious disregard” for purposes of proving 18 “oppression” does not require “willful” actions. Cal. Civ. Code § 3294(c)(2); CACI 3940 19 & 3941; Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1225-1226. 135. 20 Defendants knew that their despicable conduct, as described herein, would likely and 21 within a high degree of probability cause harm to the Plaintiffs. 22 30. The conduct of Defendants, and each of them, as set forth herein, was fraudulent in that 23 each of them engaged in intentional misrepresentations, deceit, or concealment of material 24 facts known to them. That information was fraudulently withheld from the Plaintiffs. 25 31. Defendants, and each of their employees’ and/or agents’ egregious conduct, including 26 malice, oppression and fraud, were substantial factors in causing the incident s herein 27 alleged and the Plaintiffs’ injuries and/or damages. An officer, a director, and/or a 28 managing agent of Defendants, and each of them, authorized the employees’ or agents’ -8- ___________________________________________ Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED 1 wrongful conduct, and/or adopted, ratified or approved the conduct after it occurred. 2 32. An award of punitive damages in a sum according to proof at trial is, therefore, 3 justified, warranted and appropriate under the facts and circumstances of this case, and to 4 punish or set an example of Defendants and deter such behavior by Defendants and others 5 in the future. 6 33. With respect to the Plaintiffs claiming personal injuries, said Plaintiffs make the 7 following punitive damages allegations: The conduct of Defendants was fraudulent, 8 oppressive and/or malicious as defined under California Civil Code 3294 and/or was 9 ratified by the officers, directors and/or managing agents of Defendants so as to warrant 10 the imposition of punitive damages in an amount to be determined at the time of trial. 11 Further, Plaintiffs incorporate all paragraphs of this Complaint regarding punitive damages Law Offices of Manuel A. Juarez 12 herein as though fully set forth. Plaintiffs, Herewith, Are Enforcing an Important 13 2143 CEDAR STREET, STE. 200 Right Affecting Public Interest Tel/Fax (510)206-4492 Berkeley, CA 94709 14 34. Plaintiffs, inter alia, are entitled to their attorney fees and costs in this matter pursuant 15 to Code of Civil Procedure section 1021.5, in that they are enforcing, herewith, an 16 important right affecting the public interest. 17 Defendants’ Insurance Fraud 18 35. In addition to bypassing and defrauding the Plaintiffs, the Housing Authority of the County of San Mateo, Defendants were also actively defrauding other entities by falsely claiming that 19 the Subject Property was owner occupied by the Defendants. At all times relevant the 20 Defendants knew this was a false and they the Subject Property was being rented to the 21 Plaintiffs. This was done firstly to defraud the Plaintiffs into moving into the Subject Property 22 and continue to reside at the Subject Property and to continue to derive rental payments from 23 the Plaintiffs for years, in addition to gain lower interest rates with banking institutions, defraud 24 taxation authorities by failing to report the income that the Defendants received each month 25 from the Plaintiffs. Defendants continuously demanded from the Plaintiffs under the table 26 payoffs which they concealed from the Authority in order to bypass the Authority and to 27 defraud. At all times relevant, and for many years, the Defendants lied to the State Farm 28 -9- ___________________________________________ Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED Insurance Co., and falsely claimed to them that Defendants were inhabiting the Subject 1 Property when in fact they were renting the Subject Property to the Plaintiff family. 2 36. In order to implement their defrauding activities, Defendants devised schemes by which they 3 would rush to the Plaintiffs’ dwelling (the Subject Property) in order to pretend they were the 4 ones occupying the Subject Property and that they were living there. During these times, the 5 Plaintiffs were instructed to keep their “mouths shut” and permit the Defendants, especially 6 Martha Sarbeland, to be the person that spoke to the individuals that came to the Plaintiffs’ 7 dwelling to inspect and conduct other business regarding the Subject Property. 8 37. The written lease agreement (a copy of said written agreement is attached hereto as 9 Attachment A and incorporated herein by reference) at Paragraph Number 22, specifically 10 states that the Defendants herein obtained insurance to cover them for the causes of action alleged herein in this Complaint. 11 Law Offices of Manuel A. Juarez 12 13 2143 CEDAR STREET, STE. 200 Tel/Fax (510)206-4492 Berkeley, CA 94709 14 15 Excerpt from Defendants’ own written lease agreement, Attachment A. 16 38. For many reasons, at no point whatsoever would the Plaintiffs have agreed to rent the 17 Subject Property from the Defendants had they not been specifically assured by the Defendants 18 that they had full insurance coverage for the Subject Property. 39. At no point would the Authority have permitted the Plaintiffs to move into the Subject 19 Property had they not been assured by the Defendants that the Subject Property had full liability 20 insurance. 21 40. At all times relevant to this Complaint, the Defendants intentionally defrauded the Plaintiffs 22 and many other entities by misrepresenting that they had insurance coverage as set forth in the 23 lease agreement (at Paragraph 22) which was drafted the Defendants. The Defendants 24 continuously lied to their insurance carrier and falsely informed them that the Subject Property 25 was owner occupied by the Defendants. The Defendants also lied and stated that they were not 26 renting the Subject Property to the Plaintiffs. 27 // 28 // - 10 - ___________________________________________ Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED Habitability Issues at the Subject Property 1 41. Throughout Plaintiffs' tenancy, they faced ongoing habitability defects. Plaintiffs complained 2 about the following defects, and/or Defendants should have known about these defects, but 3 Defendants failed to address Plaintiffs' complaints or failed to adequately remediate the defects. 4 The habitability, health, and safety defects included, but were not limited to, the following: 5 A. No Functioning / Adequate Heater – Frigid Temperatures 6 42. The Plaintiffs’ dwelling had no functioning / adequate heater. When Plaintiffs moved into 7 the dwelling, the heater looked like it had been burned out by the previous inhabitants and never 8 properly or adequately repaired to be able to properly heat the dwelling. 9 43. As a consequence, Plaintiffs’ dwelling became extremely frigid and cold even during the 10 City of San Mateo’s summer time; during the winter months the temperatures often dropped to the low- 30-40s. Thereafter, some repairs were attempted by the Defendants which resulted in 11 Law Offices of Manuel A. Juarez an extremely small amount of heat to come out of the heater which was in no manner adequate 12 to heat the four-bedroom Subject Property. 13 2143 CEDAR STREET, STE. 200 Tel/Fax (510)206-4492 44. As a consequence of not having a functioning / adequate heater, Plaintiffs were made to Berkeley, CA 94709 14 suffer excessively cold and frigid temperatures. Plaintiffs often slept fully clothed with jackets 15 and heavy blankets and caps on. Plaintiffs often needed to wear heavy winter clothing and 16 winter coats and hats while at home eating, watching TV, etc. the frigid temperatures caused 17 Plaintiffs substantial physical harm, extreme emotional distress and loss of quality of life. 18 Plaintiffs often felt ill, had sore throats, experienced heavy coughing, nasal congestion, and 19 shaking chills. 20 21 22 23 24 25 26 27 28 - 11 - ___________________________________________ Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED B. Water and Frigid Air Intrusion from Windows / Cracks-Openings 1 45. The lack of adequate heater at the Plaintiffs’ dwelling was severely exacerbated by the frigid 2 air intrusion from the windows and openings /cracks in the walls/ceilings and their delipidated 3 condition. The window situation at the Plaintiffs’ dwelling was akin to having an inoperable 4 open window which could never be properly closed. As such, Plaintiffs endured conditions of 5 frigid cold in addition to a lack of adequate heater at the dwelling. There were ever present 6 drafts and frigid cold air that came in through the windows of the dwelling. In addition, there 7 were cracks or openings in the walls and windows which permitted icy air to constantly 8 penetrate the Plaintiffs’ dwelling and made environmental temperature control of the home 9 impossible. 10 46. The windows were in such a state of disrepair that rainfall would intrude into the interior of the Plaintiffs’ dwelling whenever there was rainfall. 11 Law Offices of Manuel A. Juarez 47. The frequent water intrusion also contributed to soaked flooring in the Subject Property 12 which developed mold and an odor of mold and mildew. 13 2143 CEDAR STREET, STE. 200 Tel/Fax (510)206-4492 Berkeley, CA 94709 14 C. Cockroach and Ant Infestation 15 48. The Plaintiffs’ dwelling was infested with cockroaches and on other occasions infested with 16 ants. The unsanitary and dilapidated condition of the Defendants’ Subject Property created a 17 perfect environment for cockroaches to proliferate and the poor construction and delipidated 18 conditions provided ample holes, cracks, and crevices for the cockroaches to spread throughout 19 dwelling. 20 49. The anxiety that came from knowing that their dwelling was crawling with cockroaches 21 made a restful night’s sleep very difficult for the Plaintiffs, especially the minor Plaintiffs. 22 50. Plaintiffs also frequently encountered ant infestations in their dwelling. The ants would 23 invade any food that was left out and contaminate it – necessitating that the food be discarded. 24 Plaintiff Julnar Msalam also reported plagues of ants that came and went from their dwelling’s kitchen area. 25 D. Rodent Infestation 26 51. Plaintiffs also frequently encountered rodents throughout their dwelling. Plaintiffs also 27 complained to Defendants about the regular occurrence of rodents and were ignored. In the 28 same manner that the cockroaches left their feces, the rodents also deposited their fecal matter - 12 - ___________________________________________ Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED and urine throughout the entirely of the Plaintiffs’ home. This included finding rodent feces on 1 bedding and pillow and throughout the kitchen area. 2 3 52. As stated, the Plaintiff family was horrified to find rodent feces and urination on their 4 food, clothing, pillows and bedding. The rodents would also die beneath the home in 5 stagnant water / stagnant sewer area, in the walls, etc. resulting in an even greater stench 6 throughout. E. Mold Contamination 7 53. The Subject Property also had pervasive mold growth throughout the Plaintiffs’ dwelling. 8 Plaintiffs are informed and believe and, on that basis, allege that the mold growth included 9 mold harmful to human health. The Plaintiffs constantly found mold on the floors, carpet, walls, 10 and ceilings of their home. Despite regular attempts to clean the visible mold within their 11 dwelling, the mold reappeared because the contamination is entrenched within the Subject Law Offices of Manuel A. Juarez 12 Property. 13 54. The mold was exacerbated by the dilapidated conditions of the Defendants’ Subject 2143 CEDAR STREET, STE. 200 Tel/Fax (510)206-4492 Berkeley, CA 94709 14 Property. For example, the windows and lack of adequate heating exacerbated the growth of mold and mildew. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 - ___________________________________________ Case No.: 19-CIV-02602 THIRD AMENDED COMPLAINT FOR DAMAGES ~ J URY DEMANDED 1 2 3 4 5 6 7 8 9 F. Open Sewage / Ongoing Constant Water /Sewer Stagnation 10 Beneath Dwelling with Dead Animals 55. At all times relevant the Subject Property had open sewage, with human waste, permeating 11 Law Offices of Manuel A. Juarez throughout the underneath of the dwelling. Also, this human waste would often come up into 12 the Subject Property’s bathroom through defective pipes resulting in complete revulsion and an 13 2143 CEDAR STREET, STE. 200 extremely unhealthy living environment for the Plaintiff family. Tel/Fax (510)206-4492 Berkeley, CA 94709 14 56. As set forth above, there was continuous stagnant water beneath the dwelling with raw 15 sewage including fecal matter and dead animals such as rodents dying in the stagnant water and 16 decomposing and creating and even greater putrid odors inside the Subject Property. 17 G. Faulty Plumbing and Raw Sewage 57. To make matters worse, the drainage system at the Plaintiffs’ dwelling was in such disrepair 18