declaration of andrew westley in opposition to defendants demurrer to

Cal. Super. - 1st Dist.August 16, 2021

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Andrew E. Westley (Cal. Bar No. 171940) LAW OFFICE OF ANDREW WESTLEY PC 870 Market Street, Suite 788 San Francisco, California 94102 Phone: (415) 362-2817 Fax: (415) 362-2819 Email: awestley@westleylaw.com Attorney for Plaintiff, WILLIAM BYERLY SUPERIOR COURT OF THE STATE OF CALIFORNIA SAN FRANCISCO COUNTY UNLIMITED JURISDICTION WILLIAM BYERLY, Plaintiff, v. 2100 GREEN STREET, INC.; and DOES 1 through 10, inclusive, Defendants. Case No. CGC-20-584406 DECLARATION OF ANDREW WESTLEY IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Time: 9:30 AM Date: 9/15/2020 Dept: 302 ANDREW E. WESTLEY declares: 1. I am an attorney at law duly admitted to practice before all the courts of the State of California, and I am the attorney of record herein for Plaintiff in this action. Introduction 2. I submit this Declaration in opposition to Defendant’s demurrer to Plaintiff’s First Amended Complaint (“FAC”). The demurrer should be overruled on both procedural and substantive grounds: Procedural defect. The demurrer was incorrectly noticed to be heard in Department 302, but under Rule 8.10 of the Local Rules of Court for the San Francisco Superior Court, the demurrer should have been noticed to be heard by the Real Property Court (Department 501) - 1 -DECLARATION IN OPPOSITION TO DEMURRER CASE NO. CGC-20-584406 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 09/01/2020 Clerk of the Court BY: RONNIE OTERO Deputy Clerk 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 because this is a case arising out of ownership and possession of real property. Substantive deficiencies of Defendant’s demurrer. Defendant has demurred on two grounds: (1) Plaintiff’s FAC does not state facts sufficient to state any cause of action; and (2) Plaintiff’s claim for an injunction is not a valid cause of action. The demurrer should be overruled because, as discussed in complete detail below, Defendant’s own papers in support of the demurrer concede that Plaintiff’s FAC states sufficient facts in support of the claims for negligence and breach of proprietary lease. Additionally, Plaintiff’s claim for an injunction is entirely proper. Background 3. Plaintiff is the owner of a residential penthouse unit in San Francisco. FAC ¶¶ 8-10. Various unit owners and their guests utilize the roof above Plaintiff’s penthouse as a rooftop gathering area which significantly and unreasonably interferes with Plaintiff’s right to quiet use and enjoyment of his unit. FAC ¶ 20. Moreover, use of the penthouse roof as a rooftop gathering area is not compliant with the building’s governing documents, it is not lawful, and it is unsafe. FAC ¶ 14. 4. This lawsuit was filed on 5/11/2020. Plaintiff’s initial Complaint set forth three causes of action: negligence; breach of proprietary lease (one of the building’s governing documents); and negligent infliction of emotional distress. (A true and accurate Court-stamped copy of the Complaint is attached hereto as Exhibit A.) The prayer for relief in the initial Complaint sought monetary damages and an injunction. The prayer also sought attorney’s fees (as well as costs, prejudgment interest, etc.). 5. Defendant’s counsel, before filing any responsive pleading to Plaintiff’s initial Complaint, sent a meet and confer letter stating the following, in pertinent part (a true and accurate copy of Defendant’s counsel’s meet and confer letter dated 6/10/2020 is attached as Exhibit B): a. Defendant intended to demur to all three causes of action set forth in the Complaint; b. Defendant intended to file a motion to strike Plaintiff’s prayer for an order - 2 -DECLARATION IN OPPOSITION TO DEMURRER CASE NO. CGC-20-584406 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 directing specific action (which Defendant has characterized as a prayer for an injunction on grounds that the body of the Complaint itself did not assert any such claim; and c. Defendant intended to file a motion to strike Plaintiff’s prayer for attorney’s fees. 6. In an effort to avoid unnecessary motion practice, Plaintiff timely filed the FAC which resolved the issues raised by Defendant’s counsel as follows (a true and accurate Court-stamped copy of the FAC is attached as Exhibit C): a. The FAC includes additional factual allegations in support of Plaintiff’s causes of action for negligence and breach of proprietary lease; b. The FAC does not allege a separate cause of action for negligent infliction of emotional distress; c. Plaintiff’s claim for an injunction is set forth both in the body of the pleading and in the prayer for relief; and d. The FAC does not include a prayer for attorney’s fees. 7. Defendant’s counsel, after receiving the FAC, then sent a new meet and confer letter arguing that the FAC is problematic because Plaintiff’s request for an injunction belongs exclusively in the prayer for relief, and not as a separate claim in the body of the FAC itself. (A true and accurate copy of Defendant’s counsel’s meet and confer letter dated 7/8/2020 is attached as Exhibit D.) Defendant’s counsel did not raise any other issues in her meet and confer letter. 8. I responded to Defendant’s counsel’s meet and confer letter by pointing out that her position regarding Plaintiff’s claim for an injunction is directly contradictory to the position she took in response to Plaintiff’s initial Complaint. As such, I informed Defendant’s counsel that Plaintiff would stand on the FAC. (A true and accurate copy of my letter dated 7/13/2020 is attached as Exhibit E.) 9. Defendant then demurred to the FAC and noticed the demurrer to be heard in Department 302. Under Rule 8.10 of the Local Rules of Court for the San Francisco Superior Court, Defendant’s demurrer should have been noticed to be heard by the Real Property Court (Department 501) because this is a case arising out of ownership and possession of real property. - 3 -DECLARATION IN OPPOSITION TO DEMURRER CASE NO. CGC-20-584406 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant’s Demurrer Should Be Overruled 10. Defendant’s contention that Plaintiff’s FAC fails to state facts sufficient to state any cause of action is belied by Defendant’s own papers which concede that Plaintiff’s causes of action for negligence and breach of proprietary lease have been sufficiently pled. Specifically, Defendant’s memorandum of points and authorities states the following: The FAC corrected the deficiencies as to the previously pled Negligence and Breach of Proprietary Lease causes of action, and requested injunctive relief which is now tied to the revised causes of action. Defendant’s Memo. of Points and Auth., at p. 3, lines 17-19. 11. Defendant’s objection to Plaintiff’s claim for an injunction is similarly devoid of merit. Specifically, Plaintiff’s claim for an injunction (third cause of action alleges the following pertinent facts): The proprietary lease between Defendant and the unit owners provides that each owner shall have the right to quiet enjoyment of their unit; owners shall not interfere with the rights of other residents, shall not annoy other residents by unreasonable noises or otherwise, and shall comply with all city departments with respect to the premises; each unit owner is responsible for ensuring that they and their co-occupants and guests do not interfere with the comfort and/or quiet enjoyment of other others; and the public stairways shall not be used for any purpose other than for ingress to and egress from the units. FAC ¶ 57. Defendant has breached its contractual obligation(s) owed to Plaintiff, as set forth explicitly in the proprietary lease and as implied by law, by failing to take any action or steps to preserve Plaintiff’s quiet enjoyment of his home, and by failing to take any action in connection with the unlawful use of the penthouse roof as a rooftop gathering area. FAC ¶ 58. Defendant has also breached is duty to exercise ordinary care and skill in managing the building. FAC ¶ 59. 12. Plaintiff’s third cause of action seeks an injunction directing Defendant: (a) to notify building occupants, in a manner deemed reasonable by the Court, that use of the penthouse roof as an outdoor rooftop gathering area is not allowed; and (b) to adopt a plan of enforcement which the Court deems reasonable. FAC ¶ 60. 13. Plaintiff’s claim for an injunction further alleges that unless Defendant is ordered to - 4 -DECLARATION IN OPPOSITION TO DEMURRER CASE NO. CGC-20-584406 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 take action to curtail use of the penthouse roof as a rooftop gathering area, and to implement a plan of enforcement, Plaintiff will be irreparably injured in that he will continue to be substantially deprived of the quiet enjoyment of his home. FAC ¶ 61. Also, monetary damages are inadequate for the following reasons: Plaintiff will be forced to institute a multiplicity of suits for monetary damages if Defendant continues to refuse to take appropriate measures to curtail use of the penthouse roof as a rooftop gathering area; it is difficult to determine the precise amount of damages that Plaintiff has suffered and will continue to suffer as a result of the unreasonable and substantial interference with his quiet enjoyment of his home; and a money judgment against Defendant is unlikely to ensure that building occupants and their guests will curtail their use the penthouse roof as a rooftop gathering area. FAC ¶ 62. 14. As demonstrated in Plaintiff’s accompanying Memorandum of Points and Authorities, the cases cited by Defendant in support of its demurrer do not stand for the proposition Defendant espouses, i.e. that Plaintiff’s claim for an injunction is improper and subject to demurrer. 15. In any event, if the Court is inclined to grant Defendant’s demurrer, Plaintiff respectfully requests leave to amend. Any defect with respect to Plaintiff’s claim for injunctive relief can easily be cured by amending the heading, “Third Cause of Action - Injunctive/Equitable Relief” to read “Facts in Support of Prayer for Injunctive/Equitable Relief.” I declare under the penalty of perjury under the laws of California that the foregoing is true and correct. Dated: August 31, 2020 _________________________ Andrew E. Westley - 5 -DECLARATION IN OPPOSITION TO DEMURRER CASE NO. CGC-20-584406 EXHIBIT A EXHIBIT B SAN FRANCISCO LOS ANGELES SACRAMENTO June 10, 2020 Via Email Only/PDF Andrew E. Westley LAW OFFICE OF ANDREW WESTLEY PC 870 Market Street, Suite 788 San Francisco, CA 94102 awestley@westleylaw.com Re: Byerly: 2100 Green Street, Inc. Our File No.: CNAO.119739.1 Dear Mr. Westley: My firm and I represent 2100 Green Street, Inc., named Defendant in the action entitled William Byerly v. 2100 Green Street, Inc. Pursuant to Code of Civil Procedure Sections 430.31 and 435.5, please allow this letter to serve as a meet and confer effort regarding the legal Our review of the Complaint indicates that Plaintiff has failed to state facts sufficient to constitute a cause action as to all three causes of action asserted against Defendant 2100 Green Street, Inc., such that the entire Complaint is subject to demurrer. (Cal. Code of Civ. P. § 430.10(e).) Negligence To support a negligence cause of action, plaintiff must plead: (1) defendant owed plaintiff a legal duty, (2) defendant breached the duty, (3) the breach was a proximate or legal cause of of identifying whether the negligence Weimer v. Nationstar Mortgage, LLC alleged in general terms, without specific facts showing how the injury occurred, but there are the plaintiff must indicate the acts or omissions which are said to have been negligently performed. Byerly: 2100 Green Street, Inc. June 10, 2020 Page 2 injury Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) Here, Plaintiff failed to adequately plead how Defendant breached its duty and/or which assertion that he suffered damages is legally inadequate for purposes of pleading the element of damages. Accordingly, Plaintiff fails to state sufficient facts to support a cause of action for Negligence, rendering it subject to demurrer. Breach of Proprietary Lease The law deems a lease to be a contract. (Munoz v. MacMillan (2011) 195 Cal.App.4th 648 p.655-56.) To support a breach of proprietary lease/breach of contract cause of action, d damage to plaintiff resulting therefrom. (Id., at p. 655.) In his Complaint, Plaintiff failed to plead his performance of excuse for failing to perform. The Breach of Proprietary Lease claim fails to state a cause of action as a matter of law. Moreover, where a written instrument is the foundation of a cause of action, plaintiff (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402; Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199.) In his Complaint, Plaintiff failed to plead the contract at issue in either manner. Thus, the cause of action for Breach of Proprietary Lease is subject to demurrer for failing to state facts sufficient to constitute a cause of action on two different grounds. Negligent Infliction of Emotional Distress California court (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 204; internal quotations omitted.) s not an independent tort, but the tort of negligence. [Citation.] The traditional elements of duty, breach Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) As Plaintiffs other causes of action are legally deficient, the derivative Negligent Infliction of Emotional Distress cause of action similarly fails as a matter of law and is subject to demurrer. Byerly: 2100 Green Street, Inc. June 10, 2020 Page 3 Prayer For Injunctive Relief Our review of the Complaint also indica ing Defendants: (a) to notify building occupants, in a manner deemed reasonable by the Court, that the use of the Penthouse Roof as an outdoor rooftop gathering area is not allowed; and (b) to which amounts to a prayer for injunctive relief, is subject to Motion to Strike. (Cal. Code of Civ. P. §§ 436, 431.10(b)(3).) In his Complaint, Plaintiff fails to assert any cause of action pursuant to which equitable or injunctive relief may be granted. (Cal. Code of Civ. P. §431.10(b)(3).) Therefore, the Court (Cal. Code of Civ. § 436.) 2100 Green Street, Inc. is a stock cooperative, not governed by the Davis Stirling Act. Therefore, the prayer for It is my hope that we can resolve this matter informally, without unnecessary motion practice and court involvement. Please respond to this letter by email no later than close of business on Friday, June 12, 2020 to let me know whether you will amend and/or dismiss your Complaint. If we are unable to resolve these issues informally, Defendant will file a demurrer as to the entire Complaint and all causes of action therein, pursuant to Code of Civil Procedure Sections 430.10(e) and a concurrent motion to strike as to the prayers for equitable relief and pursuant to Code of Civil Procedure Sections 436 and 431.10(b)(3). Very truly yours, Alina Pavlova cc: Suzie M. Tagliere (via Email/PDF) AXP.3727980.docx EXHIBIT C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Andrew E. Westley (Cal. Bar No. 171940) LAW OFFICE OF ANDREW WESTLEY PC 870 Market Street, Suite 788 San Francisco, California 94102 Phone: (415) 362-2817 Fax: (415) 362-2819 Email: awestley@westleylaw.com Attorney for Plaintiff, WILLIAM BYERLY SUPERIOR COURT OF THE STATE OF CALIFORNIA SAN FRANCISCO COUNTY UNLIMITED JURISDICTION WILLIAM BYERLY, Plaintiff, v. 2100 GREEN STREET, INC.; and DOES 1 through 10, inclusive, Defendants. Case No. CGC-20-584406 PLAINTIFF’S FIRST AMENDED COMPLAINT Plaintiff, WILLIAM BYERLY (hereinafter, “Plaintiff”), as and for his First Amended Complaint, alleges the following: 1. Plaintiff is an individual over the age of 18 years, and at all relevant times has been a resident of the City and County of San Francisco. 2. Defendant 2100 GREEN STREET, INC. (hereinafter, “Defendant Corporation”) is a corporation incorporated under the laws of the State of California. 3. Defendant DOES 1 through 10 are sued herein under fictitious names pursuant to California Code of Civil Procedure section 474; these defendants are in some way liable for the damages sustained by Plaintiff. Plaintiff does not at this time know the true names or capacities of said Defendants, but prays that the same may be inserted herein when ascertained. 4. Defendants at all times herein mentioned were the agents and employees of their co- Defendants, and in doing the things hereinafter alleged were acting within the course and scope of - 1 -PLAINTIFF’S FIRST AMENDED COMPLAINT CASE NO. CGC-20-584406 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 such agency, and with the permission and consent of their co-Defendants. 5. All acts alleged herein occurred in the City and County of San Francisco. FACTS COMMON TO ALL CAUSES OF ACTION 6. 2100 Green Street, San Francisco, California (hereinafter, “Building”) is a “stock cooperative” residential apartment building, and Defendant Corporation holds title to the Building. 7. Occupancy of each unit in the Building is subject to the terms and provisions of identical written proprietary lease agreements between Defendant Corporation, as “lessor,” and the shareholder(s) of the shares allocated to that unit, as “lessee(s)” (hereinafter, “Proprietary Lease”). 8. The Building was built in 1928 and has 22 units. It is 10 stories high, including two garage levels and eight stories of apartments, including a stunning and unique rooftop penthouse (Unit 800) (hereinafter, “Penthouse”). 9. Plaintiff is a shareholder of Defendant Corporation and has a right of exclusive occupancy to the Penthouse, pursuant to the terms and provisions of his Proprietary Lease. 10. Plaintiff acquired his “ownership interest” in the Penthouse in or around January 2018. 11. The Penthouse is approximately 3,122 square feet, and has 2 bedrooms, 2.5 bathrooms, a large open living room/dining room, richly paneled office/library, family room, gourmet kitchen, wood-burning fireplace with elaborately carved mantlepiece, all-glass solarium, private outdoor deck over the building’s main roof structure, and sweeping views of the San Francisco Bay, Alcatraz, and the Golden Gate Bridge. 12. Amongst the unique features of the Penthouse is its quietude. The Penthouse is the only rooftop penthouse unit in the Building, and there are no adjacent or upstairs neighbors. 13. Some occupants of the Building, including some directors of Defendant Corporation, utilize the tar and gravel Penthouse roof as an outdoor rooftop gathering area for themselves and their visitors, to hang out, socialize, listen to music, and drink alcohol. Some occupants allow their visitors to utilize the Penthouse roof as an outdoor rooftop gathering area even when the - 2 -PLAINTIFF’S FIRST AMENDED COMPLAINT CASE NO. CGC-20-584406 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 occupants themselves are not present. One of the “hang-out areas” on the Penthouse roof is directly above the main bedroom of Plaintiff’s Penthouse. 14. Use of the Penthouse roof as an outdoor rooftop gathering area violates governmental, quasi-governmental, and/or administrative codes, rules, regulations, and/or policies, and is also dangerous. 15. The Building’s governing documents, including the Proprietary Lease and the House Rules, do not designate the Penthouse roof as a rooftop gathering area. 16. Access to the Penthouse roof is gained by climbing the interior Building stairway up to the main roof, opening the door which is marked “EMERGENCY EXIT ONLY,” walking across the tar and gravel main roof to the Penthouse, and then climbing a ladder mounted to the exterior wall of the Penthouse up to the Penthouse roof. 17. The portion of the interior stairway that leads up to the main roof, and the mounted exterior ladder up to the Penthouse roof, are part of the emergency means of egress and are also meant to access equipment and to execute maintenance. 18. The directors of Defendant Corporation (hereinafter, “Directors”) are aware that some Building occupants and their visitors utilize the Penthouse roof as an outdoor rooftop gathering area, and indeed some Directors themselves utilize the Penthouse roof as an outdoor gathering area. 19. The Penthouse roof is composed of tar and gravel, and there is no walking platform. Neither the tar and gravel main roof nor the tar and gravel Penthouse roof are rated as a walking surface for any use other than for emergency and for access for inspection and maintenance. 20. There is no noise reducing material between the Penthouse and the Penthouse roof. As such, the noise generated by 100-plus pounds of weight crunching down on gravel as people walk across the Penthouse roof directly over Plaintiff’s apartment unit significantly and unreasonably interferes with Plaintiff’s quiet enjoyment of his home, as does the noise generated by people talking, shouting out to one another, and playing music on the Penthouse roof. 21. Moreover, use of the Penthouse roof as a rooftop gathering area has significantly diminished the market value of the Penthouse. - 3 -PLAINTIFF’S FIRST AMENDED COMPLAINT CASE NO. CGC-20-584406 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22. Plaintiff suffers from a painful and disabling neuropathic medical condition, and rest is particularly important to his treatment plan. Use of the Penthouse roof as an outdoor rooftop gathering area has had a deleterious effect on Plaintiff’s physical and emotional health because such use unreasonably interferes with Plaintiff’s ability to rest. 23. Plaintiff has notified Defendant Corporation, through its Directors, that use of the Penthouse roof as an outdoor rooftop gathering area unreasonably interferes with his quiet enjoyment of his home, and Plaintiff has requested that Defendant Corporation take steps to curtail use of the Penthouse roof as an outdoor rooftop gathering area, including notifying Building occupants that use of the Penthouse roof as an outdoor rooftop gathering area is not allowed and implementing an appropriate enforcement plan. 24. Defendant Corporation has failed and refused to take any action in response to Plaintiff’s requests. 25. Instead, Defendant Corporation has allowed the ongoing use of the Penthouse roof as an outdoor rooftop gathering area, and indeed some of the Directors themselves utilize the Penthouse roof as an outdoor gathering area. 26. By law, inherent in the Proprietary Lease is an implied covenant of quiet enjoyment, giving rise to a contractual duty by Defendant Corporation, as lessor, to preserve the quiet enjoyment of each unit by the lessee(s) of that unit. Also by law, the perpetrator of the interference with the lessee’s quiet enjoyment need not be the lessor personally. Rather, there may be an actionable breach where, as in this case, the interference is caused by a neighbor. 27. In addition to the implied covenant of quiet enjoyment, the Proprietary Lease explicitly provides that the lessee(s) of each unit shall have the right to quiet enjoyment of the unit. Specifically, Article II, Paragraph “Fourth” of the Proprietary Lease states the following: “... [T]he Lessee upon paying the rents and performing the covenants and complying with the conditions on the part of the Lessee herein set forth at all times during the term hereby granted, quietly have, hold, and enjoy the said premises….” 28. The Proprietary Lease further provides that lessees shall not interfere with the rights of other residents, shall not annoy other residents by unreasonable noises or otherwise, and shall - 4 -PLAINTIFF’S FIRST AMENDED COMPLAINT CASE NO. CGC-20-584406 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 comply with all city departments with respect to the premises. Specifically, Article III, Paragraph “Fifth” of the Proprietary Lease states the following: “…[The] Lessee shall not…permit nor suffer anything to be done…upon said premises which will…interfere with the rights of other residents of the building, or annoy such other residents by unreasonable noises or otherwise…and the Lessee and members of Lessee’s household shall comply with all the requirements of the Board of Health and of all other city, state and federal departments with respect to the said premises….” 29. Moreover, the “House Rules Attached to Lease” (hereinafter, “House Rules”) explicitly provide that each lessee is responsible for ensuring that the lessee and the lessee’s co-occupants and guests do not interfere with the comfort and/or quiet enjoyment of other lessees. Specifically, the House Rules state the following: “2. Each lessee is responsible for ensuring that the lessee and the lessee’s co-occupants, guests, and workers make no disturbing noises in the building or otherwise interfere with the rights, comforts, quiet enjoyment, or convenience of other lessees.” 30. Building occupants and their guests who utilize the Penthouse roof as a rooftop gathering area make disturbing noises and otherwise interfere with Plaintiff’s rights, comforts, and quiet enjoyment of his home. 31. The House Rules further provide that the public stairways shall not be used for any purpose other than for ingress to and egress from the apartments. Specifically, the House Rules state the following: “1. The public halls and stairways shall not be obstructed or used for any purpose other than for ingress to and egress from the apartments.” 32. Building occupants who utilize the Penthouse roof as an outdoor rooftop gathering area utilize the public stairways to gain access to the roof, and are thereby in violation of the Proprietary Lease. 33. The Proprietary Lease provides that the House Rules are part of the Proprietary Lease, and as such, a violation of the House Rules constitutes a violation of the Proprietary Lease. Specifically, the Proprietary Lease states the following as respects the House Rules: “ARTICLE III. The Lessee hereby covenants with the Lessor as - 5 -PLAINTIFF’S FIRST AMENDED COMPLAINT CASE NO. CGC-20-584406 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 follows: *** Fourth: That the Lessor may from time to time establish such reasonable house rules as its Board of Directors may deem necessary for the management and control of the said building, and may also from time to time change such rules, and that this lease shall be in all respects subject to such rules, and to the by-laws of the lessor, which shall be taken to be part thereof, and that the Lessee shall obey all such rules and see that they are faithfully observed by the household and employees of the Lessee, it being understood that such rules shall apply to and be binding upon all of the tenants of the said building, whether stockholders of the Lessor or not, and that such rules, so far as applicable, shall be contained in the leases of apartments leased to tenants who are not such stockholders.… 34. As alleged herein, Defendant Corporation has failed to preserve Plaintiff’s quiet enjoyment of his home. 35. As further alleged herein, Defendant Corporation has failed to enforce the provisions of the Proprietary Lease and House Rules referenced and quoted herein. 36. As a direct and proximate result of the foregoing, Plaintiff has been deprived of the quiet enjoyment of his home, and has suffered damages in an amount according to proof. 37. Plaintiff has performed all obligations under the Proprietary Lease. FIRST CAUSE OF ACTION Negligence 38. Defendant Corporation, as Building owner and Plaintiff’s lessor, owes a duty to Plaintiff to exercise ordinary care and skill in managing the Building 39. As alleged herein, Defendant Corporation also owes a duty to preserve Plaintiff’s quiet enjoyment of his home. 40. Defendant Corporation has failed to exercise due care with respect to the foregoing duties. Specifically, Defendant Corporation has allowed and continues to allow the Penthouse roof to be unlawfully used as a rooftop gathering area with full knowledge that such use unreasonably and substantially interferes with Plaintiff’s quiet enjoyment of his home. 41. As a direct and proximate result of the failure by Defendant Corporation to exercise due care with respect to above-listed duties, Plaintiff has suffered damages in an amount according to proof. - 6 -PLAINTIFF’S FIRST AMENDED COMPLAINT CASE NO. CGC-20-584406 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 42. Moreover, in performing the acts, conduct, and /or omissions alleged herein, Defendant Corporation has been negligent and careless regarding the probability that its acts, conduct, and/or omissions would cause Plaintiff severe emotional and psychological distress and anguish. 43. Defendant Corporation knew, or should have known, that its failure to exercise due care with regard to the aforementioned conduct would cause Plaintiff severe emotional distress. 44. As a direct and proximate result of the negligent conduct by Defendant Corporation, Plaintiff has suffered serious emotional distress which under the same circumstances a reasonable person would be unable to cope with, in an amount according to proof. 45. Had Defendant Corporation complied with its duties as alleged herein, it would not have caused Plaintiff to suffer damages. SECOND CAUSE OF ACTION Breach of Proprietary Lease 46. The allegations of all preceding paragraphs are realleged and incorporated herein by reference. 47. By law, inherent in the Proprietary Lease is an implied covenant of quiet enjoyment, giving rise to a contractual duty by Defendant Corporation, as lessor, to preserve the quiet enjoyment of each unit by the lessee(s) of that unit. 48. In addition to the implied covenant of quiet enjoyment, and as alleged and quoted above, the Proprietary Lease explicitly provides as follows: the lessee(s) of each unit shall have the right to quiet enjoyment of the unit; lessees shall not interfere with the rights of other residents, shall not annoy other residents by unreasonable noises or otherwise, and shall comply with all city departments with respect to the premises; each lessee is responsible for ensuring that the lessee and the lessee’s co-occupants and guests do not interfere with the comfort and/or quiet enjoyment of other lessees; and the public stairways shall not be used for any purpose other than for ingress to and egress from the apartments. 49. Defendant Corporation has breached its contractual obligation(s) owed to Plaintiff, as set forth explicitly in the Proprietary Lease and as implied by law, by failing to take any action - 7 -PLAINTIFF’S FIRST AMENDED COMPLAINT CASE NO. CGC-20-584406 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or steps to preserve Plaintiff’s quiet enjoyment of his home, and by failing to take any action in connection with the unlawful use by some Building occupants of the Penthouse roof as a rooftop gathering area. 50. Instead, Defendant Corporation has allowed the tar and gravel Penthouse roof to be used as a rooftop gathering area, and indeed some Directors themselves use the Penthouse roof as a rooftop gathering area. 51. As a direct and proximate result of the foregoing, Plaintiff suffered damages in an amount according to proof. THIRD CAUSE OF ACTION Injunctive/Equitable Relief 52. The allegations of all preceding paragraphs are realleged and incorporated herein by reference. 53. Use of the Penthouse roof as an outdoor rooftop gathering area violates governmental, quasi-governmental, and/or administrative codes, rules, regulations, and/or policies, and is also dangerous. Use of the Penthouse roof as an outdoor rooftop gathering area also significantly and unreasonably interferes with Plaintiff’s quiet enjoyment of his home. 54. Defendant Corporation has actual notice that the Penthouse roof is being utilized as an outdoor rooftop gathering area, and indeed some Directors themselves utilize the Penthouse roof as an outdoor rooftop garden. Defendant Corporation also has actual notice that use of the Penthouse roof as an outdoor gathering area significantly and unreasonably interferes with Plaintiff’s quiet enjoyment of his home. 55. Plaintiff has requested that Defendant Corporation take steps to curtail use of the Penthouse roof as an outdoor gathering area, including notifying Building occupants that use of the Penthouse roof as an outdoor rooftop gathering area is not allowed, and implementing an appropriate enforcement plan, but Defendant Corporation has failed and refused. Instead, Defendant Corporation has allowed, and continues to allow, the ongoing use of the Penthouse roof as an outdoor rooftop gathering area. 56. By law, inherent in the Proprietary Lease is an implied covenant of quiet enjoyment, - 8 -PLAINTIFF’S FIRST AMENDED COMPLAINT CASE NO. CGC-20-584406 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 giving rise to a contractual duty by Defendant Corporation, as lessor, to preserve the quiet enjoyment of each unit by the lessee(s) of that unit. 57. In addition to the implied covenant of quiet enjoyment, and as alleged and quoted above, the Proprietary Lease explicitly provides as follows: the lessee(s) of each unit shall have the right to quiet enjoyment of the unit; lessees shall not interfere with the rights of other residents, shall not annoy other residents by unreasonable noises or otherwise, and shall comply with all city departments with respect to the premises; each lessee is responsible for ensuring that the lessee and the lessee’s co-occupants and guests do not interfere with the comfort and/or quiet enjoyment of other lessees; and the public stairways shall not be used for any purpose other than for ingress to and egress from the apartments. 58. Defendant Corporation has breached its contractual obligation(s) owed to Plaintiff, as set forth explicitly in the Proprietary Lease and as implied by law, by failing to take any action or steps to preserve Plaintiff’s quiet enjoyment of his home, and by failing to take any action in connection with the unlawful use of the Penthouse roof as a rooftop gathering area. 59. Defendant Corporation has also breached is duty, as Building owner and Plaintiff’s lessor, to exercise ordinary care and skill in managing the Building. 60. Plaintiff seeks a Court order pursuant to Civil Code § 3367, and also pursuant to the Court’s equitable powers, directing Defendant Corporation: (a) to notify building occupants, in a manner deemed reasonable by the Court, that use of the Penthouse roof as an outdoor rooftop gathering area is not allowed; and (b) to adopt a plan of enforcement which the Court deems reasonable. 61. Unless Defendant Corporation is ordered to take action to curtail use of the Penthouse roof as a rooftop gathering area, and to implement a plan of enforcement, Plaintiff will be irreparably injured in that he will continue to be substantially deprived of the quiet enjoyment of his home. 62. Monetary damages are inadequate for the following reasons: Plaintiff will be forced to institute a multiplicity of suits for monetary damages if Defendant Corporation continues to refuse to take appropriate measures to curtail use of the Penthouse roof as a rooftop gathering - 9 -PLAINTIFF’S FIRST AMENDED COMPLAINT CASE NO. CGC-20-584406 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 area; it is difficult to determine the precise amount of damages that Plaintiff has suffered and will continue to suffer as a result of the unreasonable and substantial interference with his quiet enjoyment of his home; and a money judgment against Defendant Corporation is unlikely to ensure that Building occupants and their guests will curtail their use the Penthouse roof as a rooftop gathering area. WHEREFORE, Plaintiff prays for judgment against Defendants as follows: 1. Actual, general, and special damages according to proof. 2. Ordering Defendants: (a) to notify building occupants, in a manner deemed reasonable by the Court, that use of the Penthouse roof as an outdoor rooftop gathering area is not allowed; and (b) to adopt a plan of enforcement which the Court deems reasonable. 3. Costs of suit herein. 4. Interest, including prejudgment interest at the legal rate. 5. Such other and further relief as the court may deem proper. Dated: June 19, 2020 LAW OFFICE OF ANDREW WESTLEY PC Attorneys for Plaintiff, WILLIAM BYERLY By: Andrew Westley Andrew E. Westley - 10 -PLAINTIFF’S FIRST AMENDED COMPLAINT CASE NO. CGC-20-584406 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I, the undersigned, hereby declare that I am, and at all times herein was, an active member of the State Bar of California. My business address is 870 Market Street, Suite 788, San Francisco, CA 94102. On the date set forth below, I served true and correct copies of the below-listed document(s) to which this declaration is appended: PLAINTIFF’S FIRST AMENDED COMPLAINT [XX ] BY U.S. MAIL - I placed, at my place of business, a true copy thereof, enclosed in a sealed envelope for collection and mailing with the United States Postal Service that same day in the ordinary course of business, addressed to the individual(s) listed below. [ ] BY HAND - I caused the above document(s) to be delivered by hand to the individual(s) listed below. [ ] VIA FACSIMILE TRANSMISSION - I caused each such document(s) to be sent by facsimile to all counsel for same day delivery to the individual(s) listed below at the facsimile transmission numbers so listed. [XX ] BY ELECTRONIC SERVICE: Based on the Superior Court of California, County of San Francisco’s Local Rules governing e-service of documents, I transmitted the document(s) to the following person(s) through One Legal. I did not receive within a reasonable time after the transmission any electronic message or other indication that the transmission was unsuccessful Individual(s) served: Alina Pavlova, Esq. Murphy Pearson Bradley & Feeney 580 California St., Suite 1100 San Francisco, CA 94104 Email: APavlova@MPBF.com I declare under penalty of perjury under the Laws of the State of California that the foregoing is true and correct. Dated: June 19, 2020 Andrew Westley Andrew E. Westley EXHIBIT D SAN FRANCISCO LOS ANGELES SACRAMENTO July 8, 2020 Via Email Only/PDF Andrew E. Westley LAW OFFICE OF ANDREW WESTLEY PC 870 Market Street, Suite 788 San Francisco, CA 94102 awestley@westleylaw.com Re: Byerly: 2100 Green Street, Inc. Our File No.: CNAO.119739.1 Dear Mr. Westley: Green Street, Inc. Pursuant to Code of Civil Procedure Section 430.31 and 435.5, please allow Our review of the FAC indicates that Plaintiff has improperly asserted a cause of action for injunctive relief, making it subject to demurrer. (Cal. Code of Civ. P. § 430.10(e).) California law is well established and incontrovertible that a cause of action for As the name implies, injunctive relief remedy not a Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 734, emphasis added; McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159 (McDowell); Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168; See Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 618 McDowell, supra, 59 Cal.App.4th at p. 1160.) On the other hand, a c McDowell, supra, 59 Cal.App.4th at p. 1159.) Thus, by its nature damages award, and not a legal theory that sounds upon which a party may bring suit. Byerly v. 2100 Green Street, Inc. July 8, 2020 Page 2 duplicates the language used und section for injunctive relief - which, as described above, is improper - for the same relief twice. This is unnecessary and contrary to California authority. We t injunctive relief, and allow the prayer for injunctive relief stand alone in the prayer for relief section. To be clear, we do not intend to move to strike and/or demur to injunctive relief as an asserted prayer for relief, only as an asserted cause of action. Moreover, if you agree to so amend, we will stipulate to letting you file a second amended complaint that will remove the improperly asserted injunctive relief cause of action. (Cal. Code of Civ. P. § 472.) If we are unable to resolve this issue informally, Defendant will proceed with a Demurrer as to the third cause of action for injunctive relief, pursuant to Code of Civil Procedure Section 430.10(e). I sincerely hope we can avoid unnecessary motion practice and court involvement, and can resolve this deficiency in the complaint informally. Please let me know by close of business on Friday, July 10, 2020 manner Very truly yours, Alina Pavlova cc: Suzie M. Tagliere (via Email/PDF) AXP.3747061.docx EXHIBIT E RE: BYERLY V. 2100 GREEN STREET, INC. PAGE- 2- ____________________________ of Sacramento (2015) 234 Cal.App.4th 41, 65. In the case at bar, unlike the cases you cite, Plaintiff’s FAC states viable causes of action pursuant to which injunctive relief may be granted. As an aside, on 7/10/2020 I spoke with your colleague Suzie Tagliere and asked her to articulate from a practical standpoint why she believes it would matter whether my client’s claim for injunctive relief is designated as a separate claim. Ms. Tagliere responded that a jury might be prejudiced against Defendant by the number of causes of action alleged. That explanation is unpersuasive because equitable claims are properly decided by the Court, not the jury. Plaintiff will stand on the FAC. However, if the Court is inclined to agree with your position that a separately stated claim for injunctive relief cannot stand, the issue can easily be cured by an amended pleading. As always, please do not hesitate to contact me to discuss this matter. Thank you for your courtesy and cooperation Very truly yours, Andrew Westley Andrew E. Westley 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I, the undersigned, hereby declare that I am, and at all times herein was, an active member of the State Bar of California. My business address is 870 Market Street, Suite 788, San Francisco, CA 94102. On the date set forth below, I served true and correct copies of the below-listed document(s) to which this declaration is appended: DECLARATION OF ANDREW WESTLEY IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT [ ] BY U.S. MAIL - I placed, at my place of business, a true copy thereof, enclosed in a sealed envelope for collection and mailing with the United States Postal Service that same day in the ordinary course of business, addressed to the individual(s) listed below. [ ] BY HAND - I caused the above document(s) to be delivered by hand to the individual(s) listed below. [ ] VIA FACSIMILE TRANSMISSION - I caused each such document(s) to be sent by facsimile to all counsel for same day delivery to the individual(s) listed below at the facsimile transmission numbers so listed. [XX ] BY ELECTRONIC SERVICE: Based on the Superior Court of California, County of San Francisco’s Local Rules governing e-filing and e-service of documents, I transmitted the document(s) to the following person(s) through One Legal, a Court approved e-filing and e- service provider. I did not receive within a reasonable time after the transmission any electronic message or other indication that the transmission was unsuccessful. Individual(s) served: Alina Pavlova, Esq. Murphy Pearson Bradley & Feeney 580 California St., Suite 1100 San Francisco, CA 94104 Email: APavlova@MPBF.com I declare under penalty of perjury under the Laws of the State of California that the foregoing is true and correct. Dated: September 1, 2020 _______________________ Andrew E. Westley