IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO, UNLIMITED JURISDICTION

Transcription

1 Eric L. Lifschitz (State Bar No. ) Aaron H. Darsky (State Bar No. ) LAW OFFICES OF ERIC L. LIFSCHITZ Franklin Street San Francisco, California Telephone: --0 Facsimile: -- Attorneys for Plaintiff John Moriarty JOHN MORIARTY, IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO, UNLIMITED JURISDICTION Case No. CGC vs. Plaintiffs LARAMAR MANAGEMENT CORPORATION, VAN NESS AVENUE LLC, and DOES 1 through 0, inclusive Defendants PLAINTIFF S OPPOSITION TO LARAMAR MANAGEMENT CORPORATION S SPECIAL MOTION TO STRIKE (ALLEGED SLAPP) Date: October 1, 0 Time: :0 a.m. Dept: 0 Hon. Harold E. Kahn Complaint Filed: May 1, 0 Trial Date: None Set i

2 TABLE OF CONTENTS I. INTRODUCTION II. III. STATEMENT OF FACTS... 1 LEGAL ARGUMENT..... A. Defendant s Motion Should be Denied Defendant s Affirmative Defenses Are Without Merit... a. Plaintiff only alleges conduct that is not subject to the litigation privilege b. Plaintiff s Claims are not barred by Res Judicata or Collateral Estoppel. Plaintiff s Causes of Action do Not Arise from Protected Activities... a. Plaintiff s Causes of Action Arise from Untenantable Conditions of the Premises.... Defendant s SLAPP Should be Denied Because There is a Probability that Plaintiff will Prevail on his Causes of Action... a. Plaintiff can Show Probability of Success of Prevailing on Cause of Action for Harassment Violation of SF Administrative Code. 1st Cause of Action b. Plaintiff can Show Probability of Success of Prevailing on Cause of Action for Negligent Violation of Statutory Duty nd Cause of Action... c. Plaintiff can Show Probability of Success of Prevailing on his Claim of Breach of the Implied Warranty of Habitability rd Cause of Action... d. Plaintiff can Show Probability of Success of Prevailing on His Claim of Breach of Implied Warranty of Statutory Warranty of Habitability th Cause of Action... e. Plaintiff can Show Probability of Success of Prevailing on His Negligence Claim- th Cause of Action... f. Plaintiff can Show Probability of Success of Prevailing on Claim for Nuisance- th Cause of Action... g. Plaintiff can Show Probability of Success of Prevailing Claim for Breach of Covenant of Quiet Enjoyment- th Cause of Action... h. Plaintiff can Show Probability of Success of Prevailing on Claim for Intentional Infliction of Emotional Distress- th Cause of Action... ii

3 IV. i. Plaintiff can Show Probability of Success of Prevailing on Claim for Unlawful Business Practices- th Cause of Action... j. Plaintiff can Show Probability of Success of Prevailing on Claim for Negligent Misrepresentation- th Cause of Action k. Plaintiff can Show Probability of Success of Prevailing on Claim for Violation of SF Rent Ordinance- th Cause of Action.... Plaintiff Respectfully Requests Time to Conduct Additional Discovery... B. Plaintiffs Should be Awarded Attorney Fees and Costs CONCLUSION... iii

4 TABLE OF AUTHORITIES Cases Amin v. Khazindar, (00) Cal.App.th, 0... Andrews v. Mobile Aire Estates (00) Cal.App.th... City of Cotati v. Cashman (00) Cal.th..., Dept. of Fair Employment & Housing v. 0 Alta Loma Road Apts, LLC (00) Cal. App. th..., Equilon Enterprises, LLC v. Consumer Cause, Inc. (00) Cal.th... Fashion 1 v. Coalition for Humane Immigrant Rights of Los Angeles (00) Cal.App.th,... Fox v. Pollack (1) 11 Cal.App.d... Freeze v. Salot () Cal.App.d 1..., Gottlieb v. Krest (00) 1 Cal.App.th 0... Green v. Superior Court, supra, Cal.d Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (0) 1 Cal. App. th,... Hoyem v. Manhattan Beach City School Dist. (1) Cal.d 0... Huntingdon Life Sciences v. Stop Huntingdon Animal Cruelty USA (00) Cal.App.th... Integrated Healthcare Holdings, Inc. v. Fitzgibbons (00) 0 Cal.App. th... Kyle v. Carmon (1) 1 Cal.App.th Naily v. Grace Community Church of the Valley (1) Cal.d... Navellier v. Sletten (00) Cal.th...,,, Pelletier v. Alameda Yacht Harbor (1) 1 Cal.App.d 1... Petroleum Collections Inc. v. Swords (1) Cal.App.d 1... Quality Wash Group V, Ltd. v. Hallak (1) 0 Cal.App.th 1... Quelimane v. Stewart Title Guaranty Co., supra, 1 Cal.th.... S. Bay Chevrolet v. Gen. Motors Acceptance Corp. (1) Cal. App. th 1... San Diego Gas & Electric Co. v. Superior Court (Covalt) (1) Cal.th... See Farmers Ins. Exch. v. Superior Court () Cal. th... Simmons v. Allstate Ins. Co. (001) Cal.App.th... Soukup v. Law Offices of Herbert Hafif (00) Cal. th 0... Stoiber v. Honeychuck () 1 Calp.App.d 0... Trerice v. Blue Cross of Calif. (1) 0 Cal.App.d... Vella v. Hudgins (1) 0 Cal. d 1,..., Wallace v. McCubbin (001) 1 Cal.App. th,... Wilcox v. Superior Court () Cal.App.th Wilson v. Parker, Covert & Chidester (00) Cal.th... Statutes Civ. Code 1... Code of Civil Procedure section 1a... Code of Civil Procedure section.1... Section.B of the San Francisco Administrative Code..., iv

5 I. INTRODUCTION Defendant's motion is an untimely demurrer disguised as a meritless SLAPP motion. Defendant's counsel Curtis Dowling expressly represented in open court that there is no preclusive effect from a default judgment taken against Plaintiff, yet this motion, signed by Mr. Dowling, argues precisely that. It is shameful. Even worse, Defendant bases its so-called motion to strike on events that are not referenced anywhere in Plaintiff's complaint. In so doing, Defendant conflates what was pled (that Plaintiff was constructively evicted from his home in September 0 and waited over nine months on the promise that the substandard conditions would be remediated) with its subsequent unlawful detainer default judgment in July 0 when Plaintiff had relocated to Los Angeles. Nowhere in Plaintiff's complaint does it reference Defendant's unlawful detainer default judgment or use it to support any of its causes of action. The fallacy perpetuated by Defendant and Mr. Dowling is an abuse of process and merits sanctions. This action arises out of the ownership, management, and related activities of an apartment in a multi-unit building located at Van Ness Avenue, San Francisco, California (hereinafter Subject Premises ) by Defendant Laramar Urban SF ( Defendant ). Defendant Laramar became property manager at the Subject Premises while Plaintiff John Moriarty, a long term, rent controlled tenant, was living in substandard conditions which became uninhabitable, unsafe and unsanitary in violation of the rental agreement and applicable ordinances, codes and statutes. Defendant moved out so that Defendants could repair the Premises as promised, but refused to do so for over six months. Despite having actual and constructive knowledge of the defective conditions of the Subject Premises, Defendant exhibited wanton and blatant disregard of these defective conditions and refused to make necessary and required repairs. Defendant s actions caused Plaintiff to live in squalor severe enough to impact Plaintiff s health. As a result of Defendant s actions, Plaintiff suffered and continues to suffer significant damages and, through this action, seek to be made whole. II. STATEMENT OF FACTS Plaintiff was a residential tenants of a rent-controlled unit at the Subject Premises from until 0. Plaintiff s Complaint ( Complaint ) 1-. Despite having actual and constructive notice of the defective and untenantable conditions at the Subject Premises, Defendants ignored their duty to remedy the conditions and, indeed, refused to make necessary repairs. In essence, the Defendants engaged in a calculated scheme to allow and perpetuate uninhabitable conditions at Subject Premises for the purpose of ousting Plaintiff from his rent-controlled unit. Complaint 1-. Defendants wanton and blatant disregard for the unsanitary and uninhabitable conditions of the 1

6 Subject Premises resulted in filthy, unsanitary and squalid conditions, including (but not limited to): water leakage; foul, musty odors, windows and doors not watertight or weather proof, lack of heat, health and safety threats. Complaint. Defendants refusal to restore and maintain a habitable premises caused Plaintiffs severe physical, mental and emotional injury, caused Plaintiff to pay excessive rent, and caused other economic losses. Complaint 1-. III. LEGAL ARGUMENT As a preliminary matter, Defendant has brought this special motion to strike, but section II C of Defendant s Memorandum regarding claim preclusion and issue preclusion is a de facto demurrer. This section seeks to raise defenses to Plaintiff s causes of action, arguing that as a matter of law, Plaintiff should be precluded from bringing these claims due to previous litigation. This is, in substance, a demurrer. Cal Code Civ. Proc. 0.. If Defendant wanted to demur to Plaintiff s causes of action, it needed to bring a timely demurrer within 0 days of service of the Complaint. Code Civ. Proc Plaintiff served the complaint on August, 0. Therefore, if Defendant wanted to demur, it needed to file its motion on or before September, 0. Here, Defendant filed the instant motion on September, 0. Therefore, Defendant s arguments regarding claim and issue preclusion, which are a de facto demurrer, should be disregarded as untimely. A. Defendant s Motion Should be Denied Under the anti-slapp statute, speech must belong to one of four categories in order to be protected, of which only could be considered relevant: 1) a statement or writing made before a legislative, executive, or judicial proceeding or other official proceeding authorized by law. Code Civ. Proc..1(e); Dept. of Fair Employment & Housing v. 0 Alta Loma Road Apts, LLC (00) Cal. App. th, (hereinafter DFEH ). Three California Supreme Court cases defined the scope and interpretation of section.1: Equilon Enterprises, LLC v. Consumer Cause, Inc. (00) Cal.th ; City of Cotati v. Cashman (00) Cal.th (hereinafter City of Cotati ); and Navellier v. Sletten (00) Cal.th (hereinafter Navellier ). As defined by these cases, a two-step process arises. First, the defendant who brings the anti-slapp motion must demonstrate that the challenged cause of action arises from protected activity. This is Prong 1. If the court finds that the claim does arise from protected activity, then the plaintiff must demonstrate that he or she is likely to prevail in the claim ( Prong ): Section.1 Civ. Proc. posits a two-step process for determining whether an action is a SLAPP. First, the challenged cause of action is one arising from protected activity. (.1 Civ. Proc., subd. (b)(1).) A defendant meets this burden by demonstrating that the act underlying the plaintiff s cause fits one of the

7 categories spelled out in section.1 Civ. Proc., subdivision (e) [citation]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (.1 Civ. Proc., subd. (b) (1); see generally, Equilon, supra, Cal.th at p..) []...[] In deciding whether the initial arising from requirement is met, a court considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (.1 Civ. Proc., subd. (b).) Navellier, supra, Cal.th at pp. - Furthermore, Only a cause of action that satisfies both prongs of the anti-slapp statute i.e., that arises from protected speech or petitioning and lacks even minimal merit is a SLAPP, subject to being stricken under the statute. Navellier, supra, Cal. th at p. (emphasis in original).. Courts should look carefully at the activity that defines the cause of action. The protected activity must be the gravamen of the claim. Where the allegations of protected activity are only incidental to a cause of action based upon non-protected activity, the mention of protected activity does not give grounds for an anti SLAPP motion. DFEH, supra, Cal.App.th at pp. -. Indeed, the mere fact that an action was filed after protected activity took place does not mean it arose from that activity. City of Cotati, supra, Cal.th at pp. -. This is the crux of Defendant s argument and Plaintiff s point is simple- just because protected activity not referenced in the Complaint may have occurred, it is not grounds for striking Plaintiff s complaint. As a result, the mere allegation of a protected act does immunize the defendant. Even more, Plaintiff make no allegation to any protected activity in his complaint rather it is improper evidence submitted by defendant to pursue this meritless motion. As demonstrated below, the Defendant does not meet its burden in this motion for all of the causes of action. 1. Defendant s Affirmative Defenses Are Without Merit Plaintiff s claims are not barred by the litigation privilege nor res judicata and collateral estoppel, as they are inapplicable to this matter and are without merit. a. Plaintiff only alleges conduct that is not subject to the litigation privilege Defendant s reliance on the litigation privilege as an affirmative defense to Plaintiff s Complaint is misplaced. From Plaintiff s allegations, it is clear the gravamen of the Complaint is Defendant s failure to remedy uninhabitable conditions. Indeed, the Complaint makes no reference whatsoever to the Unlawful Detainer action. Yet Defendant reads into the Complaint references to the unlawful detainer and asserts, without support, that it constitutes the basis of Plaintiff s Complaint. Defendant s reliance on this unsupported assertion in an attempt to establish Prong 1 of the Navellier test is incorrect. Likewise, its reliance is unfounded for the application of the litigation privilege. Under Civil Code section, judicial proceedings are privileged conduct. However, in order for the litigation privilege to apply in this matter, Plaintiff must have allegations regarding the unlawful detainer in its Complaint. Here, as detailed herein, the Complaint does not reference the unlawful detainer.

8 Plaintiff s allegations in the Complaint are based completely on uninhabitable conditions in the Subject Premises and Defendant s failure to remedy these conditions. Without references to previous litigation, Defendant cannot rely on the litigation privilege as an affirmative defense. Defendant has failed to make the requisite showing to use this affirmative defense, namely subsequent allegations based upon the previous litigation, and therefore Defendant s litigation privilege defense should be set aside. b. Plaintiff s Claims are not barred by Res Judicata or Collateral Estoppel Defendant s erroneous argument that Plaintiff s claims are barred by the doctrines of claim and issue preclusion is a further effort to mislead this Court. On May, 0, at oral arguments for Plaintiff s motion to set aside the default judgment in Unlawful Detainer action CUD--11, Curtis Dowling, attorney for Laramar, represented to the Court that there was no preclusive effect of the default judgment in the unlawful detainer action on Plaintiff s claims for uninhabitable conditions. Specifically, he responded to the Court as follows: THE COURT: How do you comment on the other statements made by other counsel which related to even if the Court were to say you can't get possession because this is a U.D. and possession is not the issue, at least want the judgment modified in this instance here to set forth what happened? I guess something to that extent so that, you heard, you can't use it against them in whatever they are going to do. MR. DOWLING: I don't know there is any collateral affect. Certainly no issue preclusion because nothing was litigated, where we have a default judgment here. There is nothing litigated. There was no evidence put before the Court so no fact issues got decided. In terms of claim preclusion, only seems to operate against my client. No cross-complaints are permitted in U.D., so not as if he could assert any affirmative complaints that he was going to use. (Lifschitz Decl.,, Ex.1, Reporter's Transcript of Proceedings, Wednesday, May, 0, Honorable Ronald Quidachay, Judge Presiding Department Number 01, at :-:.) Yet, despite his previous (and accurate) representations to persuade the Court in that hearing, and despite substantial law regarding the preclusive effects of judgments in unlawful detainer actions, Mr. Dowling attempts to preclude Plaintiff s causes on the bases of claim and issue preclusion. Defendant now erroneously asserts that the mere allegation of compliance with the rent ordinance in its unlawful detainer action, without actual litigation on the merits, is sufficient to later bar claims on the basis of a default judgment on the unlawful detainer. This reasoning, as detailed below, is faulty, made in bad faith, and should be disregarded. Claim preclusion, or res judicata, bars a party to a prior action from bringing a subsequent action on the same cause of action against the same party or one in privity with the prior adversary. Amin v. Khazindar, (00) Cal.App.th, 0. The doctrine of res judicata, whether applied as a total bar to further litigation or as collateral estoppel, rests upon the sound policy of limiting litigation by

9 preventing a party who has had one fair adversary hearing on an issue from again drawing it into controversy and subjecting the other party to further expense in its reexamination. Vella v. Hudgins (1) 0 Cal. d 1, (italics added), citing In re Crow (11) Cal.d, -. The Supreme Court stated in Vella that a judgment in unlawful detainer usually has very limited res judicata effect and will not prevent one who is dispossessed from bringing a subsequent action to adjudicate other legal and equitable claims between the parties. Vella, supra, 0 Cal. d at (internal citations omitted, emphasis added). The law does not give preclusive effect to default judgments on unlawful detainers where the issues were not litigated. (Pelletier v. Alameda Yacht Harbor (1) 1 Cal.App.d 1.) The Pelletier Court stated: Because an unlawful detainer action is a summary procedure involving only claims directly upon the right of immediate possession, a judgment in unlawful detainer has very limited res judicata effect. Legal and equitable claims-such as questions of title and affirmative defenses are not conclusively established unless they were fully and fairly litigated in an adversary hearing. Id. at 1. Clearly, Plaintiff in the instant matter did not have a fair adversary hearing on any of his claims in this matter, or the issues raised therein. None of the issues regarding the bad actions of Defendant as a landlord, which constitute the gravamen of Plaintiff s Complaint, were addressed or litigated in any way in the unlawful detainer action. The summary nature of an unlawful detainer proceeding gives its limited res judicata effect, and therefore does not preclude Plaintiff s claims. Defendant s arguments to the contrary should be set aside. Defendant s reliance upon Freeze v. Salot () Cal.App.d 1 is misplaced, as this case is distinguishable. In Vella, the Court acknowledged that Code of Civil Procedure section 1a extends the summary nature of unlawful detainer proceedings to include purchases of property. Vella, supra, 0 Cal.d at. Section 1a provides for a narrow and sharply focused examination of title. Ibid. Therefore, to this limited extent, title may be litigated in an unlawful detainer. Ibid. In Freeze, the plaintiff brought suit alleging irregularity with the trustee sale, which was the foundation for a previous unlawful detainer action where a default judgment was entered against her. Freeze, supra, Cal.App.d at. In line with its acknowledgment of the title exception to unlawful detainers, the Vella Court cited Freeze as an example of where subsequent fraud or quiet title suits founded upon allegations of irregularity in a trustee's sale are barred by the prior unlawful detainer judgment. Vella, supra, 0 Cal. d at. Here, the title exception to unlawful detainers is not at issue. Rather, the rule in Vella that the summary nature of the unlawful detainer proceedings provides very limited res judicata effect should be applied. Plaintiff pleads causes of action based on Defendant s failure to remedy uninhabitable conditions, which were not at issue in the unlawful detainer.

10 Furthermore, the fact that a default judgment was taken in the unlawful detainer provides additional support to negate the res judicata effect of the judgment. A default judgment conclusively establishes material allegations in the first complaint but only as to the facts necessary to uphold the judgment, as such judgment is not conclusive as to any defense or issue which was not raised and is not necessary to uphold the judgment. Gottlieb v. Krest (00) 1 Cal.App.th 0, (quoting Four Star Electric, Inc. v. F&H Construction () Cal.App. th, 0). Here, the causes of action in Plaintiff s Complaint, which are based on the uninhabitable conditions of the Subject Premises and Defendant s failure to remediate, were not raised in the unlawful detainer, as Mr. Moriarty never had a fair adversary hearing, as is true for all default judgments. Next, the facts alleged in Plaintiff s Complaint are not necessary to uphold the judgment. Indeed, they allege conduct of the Defendant preceding and unrelated to the unlawful detainer. The summary nature of the unlawful detainer proceedings, combined with the default judgment taken, both operate to negate any argument regarding claim or issue preclusion for Plaintiff s current causes of action in the Complaint. 1. Plaintiff s Causes of Action do Not Arise from Protected Activities Plaintiff s complaint is grounded in voluminous allegations of substandard conditions that resulted in Plaintiff s ouster from his rent controlled apartment without reference (or relation) to a subsequent unlawful detainer. a. Plaintiff s Causes of Action Arise from Untenantable Conditions of the Premises Plaintiff s Complaint alleges, and the facts clearly articulate that the gravamen of Plaintiff s causes of action is Defendant s failure to remediate the uninhabitable conditions it caused to exist at the Subject Premises for a prolonged period. Paragraph of the Complaint succinctly states Plaintiff s case: On or before, Plaintiff took possession of the Subject Premises, and continued to occupy the same until on or about September 0, when Plaintiff was forced to vacate the Subject Premises for Defendants to conduct remediation of the substandard conditions at the subject premises, which developed due to Defendants negligence, as alleged herein. The substandard conditions included, but were not limited to, extensive dampness and water intrusion, which resulted in the development of surface and airborne contaminants due to said negligent and wrongful conduct as alleged herein. Complaint. Throughout his tenancy, Plaintiff complained to Defendant and its predecessors about water intrusion in the Subject Premises. Complaint. However, Defendants never remedied the water intrusion during his tenancy. Complaint -. In September 0, Plaintiff experienced adverse health effects from the airborne contaminants in the Subject Premises. Complaint. He notified Defendants that he must temporarily vacate due to his health issues. Complaint. Despite repeated complaints by

11 Plaintiff to Defendant and/or its agents, and communications back and forth between Plaintiff and Defendant and/or its agents, Defendant failed to take any substantive steps to resolve the habitability issues in the Subject Premises. Complaint -, 1. Defendant represented to Plaintiff that it would repair the uninhabitable conditions, but it never did. Complaint -, 1,. Defendant never returned possession of the Subject Premises to Plaintiff after being put on notice of the habitability defects and its duty to repair them. Complaint. Therefore, Plaintiff now brings suit against for his damages. From Plaintiff s allegations, it is clear the gravamen of the Complaint is Defendant s failure to remedy uninhabitable conditions. The unlawful detainer is inapposite. Indeed, the Complaint makes no reference whatsoever to the Unlawful Detainer action. Before Defendant filed its unlawful detainer, all the actions of Defendant that Plaintiff complains of had already been carried out. None of the actions of Defendant, as detailed in Plaintiff s Complaint, are statements or writings in official proceedings or any other protected activity under section.1. Furthermore, the cases cited by Defendant are distinguishable because in each the asserted protected activity was specifically alleged: Wallace v. McCubbin (001) 1 Cal.App. th,, complaint alleges that Wu filed a complaint for unlawful detainer; Navellier v. Sletten (00) Cal. th, 0, the complaint expressly refers to Sletten's negotiation and signing of the release and his pleading of counterclaims in the federal action, (this verbiage Mr. Dowling omitted in his citation to the Supreme Court s FN); Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (0) 1 Cal. App. th,, complaint alleged (o) willfully conspiring with Newlin to have both of them testify falsely in depositions in the Partnership Case in what Smith described as a legal compromise; and [ ] (p) willfully misrepresenting facts surrounding the claims in the Partnership Case in a letter to the SF Bay Guardian. Therefore, none of the acts or omissions of Defendant are activities protected by the anti- SLAPP statute. Defendant is simply trying to bootstrap protected activity into a complaint that never once alleges any protected communications or conduct in order to immunize its own wrongdoings (severe, persistent and ignored habitability violations and failure to remediate) that are the basis for Plaintiff s suit. Contrary to Defendant s assertions, Plaintiff s Complaint is solidly based upon the factual allegations of the habitability violations that compelled him to bring suit. Each of those allegations has absolutely nothing to do with and, indeed, predates Defendant s purported protected activity surrounding the Unlawful Detainer. The conditions of the Subject Premises, as evidenced by the photographs taken by Plaintiff, obviate that Plaintiff s causes of action do not arise from the Unlawful Detainer action; they arise from the deplorable conditions of the Subject Premises. See Declaration of John Moriarty, Ex. D, Photographs.

12 Defendant s SLAPP Should be Denied Because There is a Probability that Plaintiff will Prevail on his Causes of Action Even assuming, arguendo, Defendant can show that Plaintiff s causes of action arose from protected activity, Plaintiff s causes of action against Defendant should not be stricken because Plaintiff can show a probability of success for each of his causes of action. The standard for determining whether a party has demonstrated a probability of prevailing is similar to that applied to a non-suit or a directed verdict. Kyle v. Carmon (1) 1 Cal.App.th 01, ; Simmons v. Allstate Ins. Co. (001) Cal.App.th,. On appeals from judgments for non-suit, appellate courts view the evidence in the light most favorable to appellant. That is, the trial court s judgment will be affirmed only if: interpreting the evidence most favorably to plaintiff s case and most strongly against defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff, a judgment for defendant is required as a matter of law. Naily v. Grace Community Church of the Valley (1) Cal.d, 1. Plaintiff need only present a prima facie showing of facts sufficient to support a favorable judgment. Navellier, supra, Cal.th at pp.,. Indeed, with respect to the need to demonstrate a probability of prevailing, the statute poses no obstacle to suits that possess minimal merit. Id. at pp. -; see also Wilson v. Parker, Covert & Chidester (00) Cal.th, 1. Furthermore, the Court does not weigh the credibility or comparative strength of the evidence. The court considers defendant s evidence only to determine if it defeats plaintiff s showing as a matter of law. Soukup v. Law Offices of Herbert Hafif (00) Cal. th 0, 1; Integrated Healthcare Holdings, Inc. v. Fitzgibbons (00) 0 Cal.App. th,. Here, substantial evidence supports Plaintiff s claims in this case. Although no discovery has occurred to date, the sworn statement of John Moriarty, coupled with the documentary evidence attached, establish that Plaintiff s causes of action possess far more than the minimal merit needed to demonstrate a probability of prevailing on such claims. Plaintiff began living in the Subject Premises sometime in. Moriarty Decl.. Due to years of unabated water intrusion into his unit, airborne and surface contaminants began to develop, which created an unsanitary and unhealthy environment that was beyond Plaintiff s ability to remedy. In and around September 0, Plaintiff requested for the unsanitary conditions to be abated, and temporarily moved out of the unit because the resulting contaminants were exacerbating his pre-existing lung disease. Moriarty Decl.. Because of the unsanitary conditions, Plaintiff suffered, and continues to suffer from ailments related to the conditions of his unit. Moriarty Decl. 1. Plaintiff notified Laramar of his intent to temporarily vacate and to withhold rent while repairs were performed. Moriarty Decl.. Plaintiff periodically checked on the status of repairs and remediation at the Subject Premises.

13 Moriarty Decl.. In October 0, Michael Lehman of Laramar agreed to send a maintenance person to the Subject Premises to inspect. Moriarty Decl.. In November 0, Marcela Huerta inspected the Subject Premises and observed the contamination. Moriarty Decl.. At that time, Plaintiff believed that Laramar was going to fix the conditions in his unit. Moriarty Decl.. Indeed, Laramar posted a notice to exhibit the dwelling to contractors on November, 0. Moriarty Decl., Ex. A. However, repairs were not performed to the unit. Instead, Curtis Dowling, counsel for Laramar, contacted Plaintiff in a voic on December, 0, which is transcribed in the Moriarty Declaration at paragraph. Mr. Dowling requested information regarding Plaintiff s agreement to not pay rent while repairs were being performed. Moriarty Decl.. In January 0, Plaintiff sent photographs depicting the condition of the unit to Mr. Dowling. Moriarty Decl., Photographs, Ex. D. Despite another inspection of the unit in or around March, 0 by Laramar, repairs were not performed. Moriarty Decl. -1. At no time was Plaintiff told that repairs would not be performed. Moriarty Decl. 1. Based upon the evidence presented above via the declaration of Plaintiff, and the exhibits attached thereto, it is clear that Plaintiff has sufficiently established the requisite probability of success for the causes of action in his Complaint. Each specific cause of action is addressed below. a. Plaintiff can Show Probability of Success of Prevailing on Cause of Action for Harassment Violation of SF Administrative Code. 1st Cause of Action Section.B of the San Francisco Administrative Code (hereinafter the Rent Ordinance ), explicitly prohibits landlords and their agents, contractors, subcontractors and employees from engaging in a wide variety of harassing conduct in bad faith. (a) No landlord, and no agent, contractor, subcontractor or employee of the landlord shall do any of the following in bad faith: (1) Interrupt, terminate or fail to provide housing services required by contract or by State, County or local housing, health or safety laws; () Fail to perform repairs and maintenance required by contract or by State, County or local housing, health or safety laws; () Fail to exercise due diligence in completing repairs and maintenance once undertaken or fail to follow appropriate industry repair, containment or remediation protocols designed to minimize exposure to noise, dust, lead, paint, mold, asbestos, or other building materials with potentially harmful health impacts; () Influence or attempt to influence a tenant to vacate a rental housing unit through fraud, intimidation or coercion; () Interfere with a tenant's right to quiet use and enjoyment of a rental housing unit as that right is defined by California law; () Interfere with a tenant's right to privacy; () Other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet of any person lawfully entitled to occupancy of such dwelling unit and that cause, are likely to cause, or are intended to cause any person lawfully entitled to occupancy of a dwelling unit to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy. See Section.B(a) of Rent Ordinance.

14 Section.B(c)() of the Rent Ordinance requires that each and every violation of a provision of the Tenant Harassment Section carry with it the greater of a $1,000 statutory penalty or trebled actual damages, whichever is greater. As discussed in section III,, supra, Plaintiff has provided an abundance of facts under penalty of perjury that demonstrate Defendant s continually, negligently, and in bad faith failed to exercise ordinary care in the ownership and management of the Premises by not complying with applicable housing and health and safety codes, willfully violating Section.B(a)(1) and () of the Rent Ordinance. Plaintiff was forced to temporarily vacate his home September 0, and Defendant continued violating Section.B of the Rent Ordinance by failing to remediate as promised. The evidence establishes Plaintiff meet his burden showing a probability of success on this cause of action, and the motion should be denied. b. Plaintiff can Show Probability of Success of Prevailing on Cause of Action for Negligent Violation of Statutory Duty nd Cause of Action To establish negligence per se on the basis of a statutory violation, Plaintiff must prove that: 1) Defendant violated a statute, ordinance or regulation; ) the violation proximately caused the injury; ) the injury was of a type intended to be prevented by the statute; and ) the injured party was of the class meant to be protected by the statute, ordinance or regulation. Quelimane v. Stewart Title Guaranty Co., supra, 1 Cal.th. As discussed in section III,, supra, Plaintiff has provided an abundance of facts under penalty of perjury that demonstrate Defendant s negligent violations of its; duty under the Civil Code to render and maintain a habitable premises. The evidence submitted by Plaintiff is more than adequate to meet his burden of demonstrating a probability of success on his cause of action for negligent violation of statutory duty. Therefore, Defendant s SLAPP for negligent violation of statutory duty should be denied. c. Plaintiff can Show a Probability of Success of Prevailing on his Claim of Breach of the Implied Warranty of Habitability rd Cause of Action A residential landlord violates the implied warranty of habitability when he or she fails to provide and maintain a residential premises suitable for human habitation. Green v. Superior Court, supra, Cal.d 1. Plaintiff has provided an abundance of facts under penalty of perjury in section III,, supra, supra, that demonstrate Defendant s numerous and egregious violations of the implied warranty of habitability. As set forth below, Plaintiff s claim is not barred by the default judgment obtained in the unlawful detainer action. Since evidence submitted by Plaintiff more than suffices to meet his burden of showing minimal merit for their cause of action for breach of the implied warranty of habitability, this Court should deny Defendant s SLAPP against this cause of action. d. Plaintiff can Show Probability of Success of Prevailing on the Cause of Action for Breach of Statutory Warranty of Habitability th Cause of Action

15 Civil Code section 1.1 provides eight affirmative standards characteristics required to render a dwelling habitable. These characteristics include, among other things: effective weatherproofing and weather protection of the roof, exterior walls, windows and doors; plumbing and gas facilities that conform to state and local law at the time of installation, maintained in good working order. See Civ. Code 1.1. If the unit substantially lacks any of these characteristics, it is deemed untenantable and, therefore, in violation of the landlord s duty to render and maintain a residential building fit for human habitation. Civ. Code 1. As discussed in section III,, supra,, Plaintiff has provided an abundance of facts under penalty of perjury that demonstrate Defendant s various and blatant violations of the statutory warranty of habitability. Plaintiff s evidence is more than adequate to meet his burden of demonstrating a probability of success on his cause of action for breach of statutory warranty of habitability. Therefore, Defendant s SLAPP against the cause of action for breach of statutory warranty of habitability should be denied. e. Plaintiff can Show Probability of Success of Prevailing on Negligence Claim-- th Cause of Action Each of Plaintiff s causes of action, including the cause of action for negligence, arise from Defendant s breach of various duties owed to Plaintiff by virtue of the landlord-tenant relationship between the parties. In order to prevail on a claim for negligence, a plaintiff must show: (1) the defendant's legal duty of care toward the plaintiff; () the defendant's breach of duty the negligent act or omission; () injury to the plaintiff as a result of the breach proximate or legal cause; and () damage to the plaintiff. Quelimane v. Stewart Title Guaranty Co. (1) 1 Cal.th. Plaintiffs can show each of these elements. i. Plaintiff s Evidence Regarding Duties Owed by Defendant Plaintiff can show that Defendant owed a duty to them to provide and maintain the Subject Premises in a condition fit for human habitation. Plaintiffs resided at the Subject Premises since for many years. It is undisputed that Defendant managed the Subject Premises during the end of Plaintiff s tenancy. By virtue of his tenancy at the Subject Premises, Defendant owed Plaintiff a duty to render and maintain the Subject Premises in a habitable condition. See Green v. Superior Court (Sumski) (1) Cal.d 1, ; Civ. Code 1, et seq. ii. Plaintiff s Evidence Demonstrating Defendant s Breaches of Its Duties Plaintiffs have substantial evidence showing that Defendant breached his duty to provide and maintain the Subject Premises in a habitable condition, as show in section III,, supra. iii. Plaintiffs Can Show Injury Caused by Defendant Breaches of Duties Plaintiff s injuries include, but are not limited to, significant physical, mental and emotional injury as a result of the untenantable conditions of the Subject Premises. While living in the squalid conditions of

16 the Subject Premises, Plaintiff began to suffer significant physical health problems. These problems included respiratory ailments, shortness of breath, wheezing, coughing, allergies, eye irritation, interrupted sleep, general discomfort and fatigue. Moriarty Decl. 1. He also began to suffer from embarrassment, humiliation, discomfort, exacerbation and annoyance, and extreme emotional distress. Moriarty Decl. 1. Proximate cause is a question of fact and, as such, not properly disposed of on a motion to strike. Hoyem v. Manhattan Beach City School Dist. (1) Cal.d 0, 0. Plaintiff s evidence of his injuries coupled with his allegations regarding the proximate cause of those injuries are sufficient to sustain their claim for negligence at this early stage. f. Plaintiff can Show Probability of Success of Prevailing on the Claim of Nuisance th Cause of Action In order to sustain a cause of action for nuisance, Plaintiff must prove: 1) Plaintiffs had an interest (ownership, control, leasehold) in the land; ) Defendants substantially interfered with Plaintiff s use and enjoyment of the land; i.e. that it caused Plaintiffs to suffer substantial actual damage; and ) Defendant s interference with Plaintiff s protected interest in the land was unreasonable. San Diego Gas & Electric Co. v. Superior Court (Covalt) (1) Cal.th, (internal citations omitted); Fashion 1 v. Coalition for Humane Immigrant Rights of Los Angeles (00) Cal.App.th,. California law has long held that habitability violations may form the basis for a cause of action for nuisance. Stoiber v. Honeychuck () 1 Calp.App.d 0. As discussed in section III,, supra, Plaintiff has provided significant evidence showing he had an interest in the Subject Premises, Defendant substantially and unreasonably interfered with Plaintiff s use and enjoyment of the Subject Premises (by violating the warranty of habitability), and that these violations caused Plaintiff to suffer substantial and actual damage (in the form of his resultant health problems). For these reasons, Plaintiff has more than met his burden of showing minimal merit for his cause of action for nuisance and this Court should deny Defendant s Special Motion to Strike Plaintiff s cause of action for nuisance. g. Plaintiff can Show Probability of Success of Prevailing on his claim for Breach of the Covenant of Quiet Enjoyment th Cause of Action A cause of action for breach of the covenant of quiet enjoyment lies where a landlord s act(s) or omission(s) substantially interfere with a tenant s right to use and enjoy the property. Andrews v. Mobile Aire Estates (00) Cal.App.th, ; Civ. Code. Allegations of a landlord s failure to fulfill the obligation to provide a habitable premises are sufficient to plead a cause of action for breach of the covenant of quiet enjoyment. Petroleum Collections Inc. v. Swords (1) Cal.App.d 1,. As discussed, supra, Plaintiff has presented sufficient evidence demonstrating that Defendant breached the covenant of quiet enjoyment by his many and wanton habitability violations. Through this

17 evidence, Plaintiff has demonstrated a probability of success on his cause of action for breach of the covenant of quiet enjoyment. Therefore, Defendant s Special Motion to Strike should be denied. h. Plaintiff can Show Probability of Success of Prevailing on his Claim for Intentional Infliction of Emotional Distress th Cause of Action To prove intentional infliction of emotional distress, Plaintiff must show: 1) outrageous conduct by Defendants; ) Defendant s intention of causing or reckless disregard of the probability of causing emotional distress; ) Plaintiff s suffering severe or extreme emotional distress; and ) Defendant s outrageous conduct actually and proximately caused Plaintiff s emotional distress. Huntingdon Life Sciences v. Stop Huntingdon Animal Cruelty USA (00) Cal.App.th, (quoting Trerice v. Blue Cross of Calif. (1) 0 Cal.App.d, ). Plaintiffs can demonstrate each of these elements. Defendant s outrageous conduct is demonstrated by its failure to repair and remedy the severely dilapidated and extremely decrepit conditions of the Subject Premises. Defendant s failure to repair or remedy these conditions, despite having notice of them, is far beyond the pale of acceptable property management conduct and clearly demonstrates Defendant s reckless disregard for the emotional distress caused by Plaintiff living in untenantable conditions that made him sick. As a result of these conditions, Plaintiff suffered extreme and/or severe emotional distress including embarrassment, humiliation, discomfort, exacerbation and annoyance. Moriarty Decl. 1. Plaintiff s evidence regarding his cause of action for intentional infliction of emotional distress more than meets the minimal merit required by the second prong of the anti-slapp statute. Therefore Defendant s Special Motion to Strike should be denied. i. Plaintiff can Show Probability of Success of Prevailing on his Claim for Unlawful Business Practices th Cause of Action Under section 100, unlawful conduct is that which is committed pursuant to business activity and is at the same time forbidden by law. See Farmers Ins. Exch. v. Superior Court () Cal. th, ; S. Bay Chevrolet v. Gen. Motors Acceptance Corp. (1) Cal. App. th 1, 0-1 ( The unlawful practices prohibited by... [B&P] section 100 are any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made. It is not necessary that the predicate law provide for private civil enforcement. As our Supreme Court put it, section 100 borrows violations of other laws and treats them as unlawful practices independently actionable under section 100 et seq. (internal citations omitted)). Since Plaintiff s evidence abundantly demonstrates Defendant s failure to render and maintain a habitable premises in violation of duties imposed by common law, statutes and local ordinances, Defendant s Special Motion to Strike the cause of action for unlawful business practices should be denied. j. Plaintiff can Show Probability of Success of Prevailing on his Claim for Negligent Misrepresentation -- th Cause of Action

18 "Negligent misrepresentation is a form of deceit, the elements of which consist of (1) a misrepresentation of a past or existing material fact, () without reasonable grounds for believing it to be true, () with intent to induce another's reliance on the fact misrepresented, () ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and () damages." (Fox v. Pollack (1) 11 Cal.App.d,, internal citation omitted.) "Whether a defendant had reasonable ground for believing his or her false statement to be true is ordinarily a question of fact." (Quality Wash Group V, Ltd. v. Hallak (1) 0 Cal.App.th 1, 1 [ Cal.Rptr.d ], internal citations omitted.) As discussed in section III,, supra, Plaintiff has provided significant evidence showing Defendant represented that they would repair his uninhabitable unit, but failed to do so. Plaintiff temporarily vacated and waited for Defendant to repair his unit. He reasonably relied upon these representations that they would repair his unit, which was to his detriment. The repairs were never done. Therefore, Plaintiff alleges that the representations of Defendant were made with the intent to induce reliance and were made without reasonable grounds for Defendant to believe they were true. For these reasons, Plaintiff has more than met his burden of showing minimal merit for his cause of action for negligent misrepresentation and this Court should deny Defendant s Special Motion to Strike. k. Plaintiff can Show Probability of Success of Prevailing on his Claim of Violation of SF Rent Ordinance, section. th Cause of Action Sections., et seq. of the Rent Ordinance prescribe the limited circumstances were a landlord can seek to recover possession of a residential unit. As shown by the evidence in this case, Defendant constructively sought to regain possession of the Subject Premises by abrogating their duties to maintain the property as set forth in state law and the lease agreement. Further, as Plaintiff alleges in his Complaint, Defendant and the other Defendants engaged in a calculated scheme to allow and perpetuate uninhabitable conditions at Subject Premises for the purpose of chasing Plaintiff from the rent-controlled unit where the monthly rent was below market value, so that Defendants could re-rent the unit to new tenants at marketrate. This is exactly the type of landlord bad faith that is prohibited by section. of the Rent Ordinance. The evidence submitted by Plaintiff is more than adequate to meet his burden of demonstrating a probability of success on his cause of action for violation of the Rent Ordinance. Therefore, Defendant s Motion to Strike Plaintiff s cause of action for violation of the Rent Ordinance should be denied. Defendant has failed to meet Prong of the test set forth under Navellier, City of Cotati and Equilon Enterprises, LLC v. Consumer Cause, Inc. because Plaintiffs have presented evidence that establishes a probability of success on each of his causes of action, Therefore, Defendant s Special Motion to Strike pursuant to Code of Civil Procedure section.1 should be denied in its entirety.. Plaintiff Respectfully Request Time to Conduct Additional Discovery

19 In the unlikely event that this Court is inclined to grant Defendant s motion with respect to any of the causes of action, Plaintiff requests that the Court continue the hearing on this motion and permit Plaintiff to conduct additional discovery to support his claims. In order to satisfy due process, the burden placed on the plaintiff to show a reasonable probability of success on the merits must be compatible with the early stage at which the motion is brought and heard... and the limited opportunity to conduct discovery. Wilcox v. Superior Court () Cal.App.th 0,. Specifically, Plaintiff would seek all inspection reports and notes regarding inspections for the Subject Premises, correspondence between Defendant related to the Subject Premises, reports of any inspections conducted pursuant to a lender s requirements, and correspondence among Defendant and property owners. B. Plaintiffs Should be Awarded Attorney Fees and Costs Code of Civil Procedure section.1(c) provides for attorney fees and costs to be awarded in situations like this one: In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section.. (Emphasis added.) The legal arguments Defendants presents are without merit and completely frivolous. This court should find that this anti-slapp special motion to strike is frivolous and solely intended to cause unnecessary delay, and should award reasonable attorney s fees and costs in the amount of $,00 to Plaintiff s counsel for opposing this meritless motion. Declaration of Eric L. Lifschitz,. IV. CONCLUSION For the foregoing reasons, Defendant s special motion to strike pursuant to Code of Civil Procedure section.1 should be denied in its entirety and attorney fees and costs should be awarded to Plaintiff. However, if this Court is inclined to grant Defendant s motion, Plaintiff respectfully requests this Court to continue the hearing and permit Plaintiff to conduct additional discovery. Dated: October, 0 By: Aaron H. Darsky Attorney for Plaintiff John Moriarty