Bernardo Magana & Yesenia Gonzales V Sterling Property Management, Inc., Et Al

1 Ryan J. Smythe Esq.
(SBN 310247)
4299 Saint Andrews Drive
2 Chino Hills, CA 91709
Telephone: (909) 614-1726
3
Facsimile: (619) 413-4498
4 ryan@smythelaw.com
5 Attorneys for Plaintiffs,

BERNARDO MAGANA and YESENIA GONZALES
6
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
COUNTY OF ORANGE
9
10 BERNARDO MAGANA and YESENIA Case No.: 30-2018-00984428-CU-CJC

11 GONZALES, [Unlimited Jurisdiction]
12 Plaintiffs, First Amended Complaint For:
13 v. 1. Breach of the Implied Warranty Of

Habitability
14 STERLING PROPERTY MANAGEMENT, 2. Tortious Breach of the Warranty Of
15 INC., a California corporation; PRISON Habitability
MUTINY GENERAL PARTNERSHIP, an 3. Violations Of Civil Code Section §
16 unknown business entity; CAPITALVEST, 1940.2;
Inc., a California corporation; and DOES 1 4. Intentional Infliction of Extreme
17 through 25, inclusive, Emotional Distress
5. Negligent Infliction of Extreme
18 Defendants. Emotional Distress
19 6. Constructive Eviction
7. Breach of the Covenant of Quiet
20 Enjoyment
8. Breach of Rental Agreement
21 9. Negligence
10. Negligence Per Se
22
11. Retaliatory Eviction
23 12. Violations of Civil Code § 1954
13. Violations of Civil Code § 789.3
24 14. Wrongful/Tortious Eviction
15. Fraud/Concealment
25
26
27
28
FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
1
I. PARTIES & JURISDICTION
1
1. Plaintiff BERNARDO MAGANA, (hereinafter referred to as “Plaintiff” and/or
2
3 “Plaintiffs”) is an individual who has at all relevant times mentioned herein, resided in the
4 County of Orange, State of California.
5 2. Plaintiff YESENIA GONZALES, (hereinafter referred to as “Plaintiff” and/or

6 “Plaintiffs”) is an individual who has at all relevant times mentioned herein, resided in the
7
County of Orange, State of California.
8
3. Defendant STERLING PROPERTY MANAGEMENT INC., (hereinafter referred to
9
as “STERLING”), is now and at all times mentioned herein was, upon information and belief,
10
11 a corporation organized and existing under the laws of the State of California. Upon
12 information and belief, Sterling’s principal place of business is located in the county of
13 Orange, California and is in the business of purchasing and leasing residential properties and
14
performing management services to such properties for profit.
15
4. Defendant PRISON MUTINY GENERAL PARTNERS (hereinafter referred to as
16
“PRISON MUTINY”) is an unknown named party believed to have some form of beneficial
17
ownership in the Avalon Apartment Complex Plaintiffs leased from Defendants. Plaintiffs are
18
19 unaware of the location, and structure of this entity, and will amend this Complaint accordingly
20 once such information is discovered.

21 5. Plaintiffs are ignorant of the true names and capacities, whether individual,
22
corporate, associate, subcontractors or otherwise, of Defendants DOES 1 to 100, inclusive, and
23
therefore sue said DOE Defendants by fictitious names.
24
6. Once Defendants, and/or further facts are ascertained or clarified or evidence,
25
26 currently in the possession and/or control of some or all Defendants, or are discovered, then
27 Plaintiffs will amend this Complaint accordingly.
28
2
7. Defendants acted as agents, partners, managers, contractors, subcontractors,
1
2 employees, investors for one another. Plaintiffs are ignorant of the true identities and roles yet
3 to be ascertained at this time. When further facts are ascertained or clarified or evidence
4 currently in the possession and or control of some or all Defendants, or are discovered, then
5
Plaintiffs will amend this Complaint accordingly.
6
7 II. VENUE
8
8. The injuries sustained by Plaintiffs were sustained in Orange County, California and
9
involve Plaintiffs’ tenancy at real property situated in Orange County, California.
10
9. Venue is proper in this Court because one or more of the Defendants resides within
11
12 Orange County, Plaintiffs suffered an injury in Orange County and the Premises are located in
13 Orange County.
14
15 III. FACTUAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION

16
10. On or about October 15, 2015, Plaintiffs entered into a written lease (the “lease”)
17
with Defendant GUEVARA, the agent acting as the property manager authorized to represent
18
Defendant STERLING provide property management services at the Avalon Apartment
19
20 Complex.
21 11. Plaintiffs qualify as a “person who hires a dwelling” (i.e. tenant) as defined by
22 California Civil Code Section §1940 and avail themselves of all the rights, remedies and
23
benefits contained therein.
24
12. Pursuant to the residential tenancy agreement, Defendants expressly and impliedly
25
warranted that the Premises were and would remain habitable and that Defendants would
26
maintain and repair Plaintiffs Premises in such a manner as to keep it habitable and safe to
27
28 occupy.
3
13. Plaintiffs reasonably relied and were substantially influenced in leasing the
1
2 Premises based on Defendants’ misrepresentations and concealment of facts regarding
3 Defendants’ covenant to maintain habitable Premises.
4 14. Plaintiffs have both resided at the Premises as residential tenants of Defendants’ for
5
more than twelve months, and as such were entitled to written notice of sixty (60) days from
6
Defendants as required by California Civil Code 11611(a).
7
15. Plaintiffs, at all relevant times during their tenancy, paid rent on time and adhered
8
to all terms and conditions required by Defendants under the agreements executed by the
9
10 parties for the Premises.
11 16. Defendants were engaged in reconstruction of units sharing air ventilation, common
12 areas, and attic areas without any requisite notice to Plaintiffs. Such activities involved
13
insulation and plumbing repair, removal of flooring and other activities that Defendants had
14
reason to know that such activities would disturb asbestos materials at the Premises.
15
17. Defendants intentionally did not perform legally obligated asbestos testing prior to
16
17 engaging in reconstruction efforts at the units adjacent to Plaintiffs’ Premises, nor did
18 Defendants file an emergency abatement plan made in case of the release of asbestos materials
19 being disturbed or released by their activities.

20 18. Sometime around or prior to 10:03 AM on January 16, 2017 an individual(s)
21
working on behalf or at the direction of Defendants, caused a fire by negligently allowing his
22
gas-powered soldering torch to come into contact with flammable insulation and a wood frame
23
he was working on.
24
25 19. On January 16, 2017, local code-enforcement placed a notice restricting use, or “red
26 tag,” for uninhabitable conditions on the Premises, for uninhabitable conditions. Defendants
27 were responsible for causing a structure fire that burned three apartment units and shut down a
28
local major roadway.
4
20. The placement of a “red tag” was in no manner related to any acts of Plaintiffs or
1
2 omissions of themselves or any guests.
3 21. Plaintiffs were both in lawful and actual possession of the Premises prior to and on
4 the date the Premises were deemed uninhabitable, beginning January 16, 2017 and continue to
5
be unlawfully excluded from the Premises.
6
22. The Tustin Building Code Enforcement Department issued several Notices and
7
Orders to Comply during the relevant times. Violations were left unabated for more than thirty
8
five (35) days.
9
10 23. Plaintiffs were involuntarily evicted from the residential dwelling property interest
11 in the Premises.
12 24. Defendants have not issued any form of written notice to terminate pursuant to CCP
13
§§1161(2), CCP §§1161(3) or CCP §§1161(4).
14
25. Defendants have not issued either a thirty (30) day, or sixty (60) day notice to
15
terminate (CCP § 1161, CCP § 1161(1), Civ. C §§ 1946, 1946.1). Nor has any notice
16
17 unequivocally demanded termination of the Plaintiffs’ tenancy or included a mandatory
18 statement regarding reclaiming abandoned personal property as required pursuant to (Civ. C §
19 1946, 1946.1(h)).
20 26. Defendants placed machinery obstructing the main hallway with an electrical cord
21
that continues out the kitchen window of Plaintiffs’ residence, across Plaintiffs’ backyard and
22
ultimately leads to the second story of the adjacent unit’s open window, where Defendants
23
engaged in construction activities.
24
25 27. Plaintiffs have never consented to Defendants or any person acting on their behalf
26 to enter their residence.
27
28
5
28. Plaintiffs are informed and aware that Plaintiffs’ utility services, including gas,
1
2 electric and water were all terminated and/or turned off without notification or consent of
3 Plaintiffs.
4 29. Plaintiffs have made every possible effort and/or expenditure in mitigating damages
5
that Plaintiffs could have avoided through reasonable efforts. Plaintiffs have gone so far as to
6
unknowingly risk their own health to comply with the Defendants’ demand to retrieve their
7
personal property.
8
30. Besides loss of possession and occupancy of real property, Plaintiffs have now lost,
9
10 and continue to lose, unique personal items where were wrongfully removed and allowed to be
11 exposed to toxins such as asbestos debris, lead based paint debris, fire and smoke. The personal
12 items have also been exposed to moisture damage due to Defendants entering Plaintiffs’
13
Premises without any written notice on numerous occasions.
14
31. Defendants negligently and carelessly owned, operated, provided, supervised,
15
maintained, managed, constructed, inspected, repaired, and rented the Premises and negligently
16
17 arranged, contracted, hired, supervised, monitored, or otherwise undertook the renovation
18 described above, thereby rendering the Premises uninhabitable, hazardous, toxic,
19 contaminated, and unsafe, and exposing Plaintiffs to asbestos fibers, fire damage, smoke
20 damage and numerous other harmful toxins that proximately caused the injuries and damages
21
alleged in this Complaint.
22
32. As of today’s date, Plaintiffs’ personal property continues to be improperly within
23
Defendants’ control and possession at the Premises and Defendants continue to engage in
24
25 unpredictable and inconsistent positions in refusing Plaintiffs access to their personal property.
26 ///
27 ///
28
///
6
FIRST CAUSE OF ACTION
1
2 BREACH OF THE IMPLIED WARRANTY OF HABITABILITY
3 (Against All Defendants and Does 1-25)
4 33. Plaintiffs repeat, re-allege and incorporate by reference each and every relevant
5
general allegation and operative fact contained in the previous paragraphs as though set forth
6
herein full.
7
34. Implied in the rental agreement between Plaintiffs and Defendants is a warranty that
8
the Premises are and will be maintained in habitable condition.
9
10 35. A material and defective condition affecting the Premises habitability occurred as
11 evidenced by the “red tag” placed by Tustin Code Enforcement on the Premises.
12 36. Further defects included but were not limited to the following:
13
a) Heating and cooling systems not maintained in good working order;
14
b) Roof damage exposing the inside of Plaintiffs’ apartment unit to outside
15
elements;
16
17 c) Windows that were not properly locked or closed due to damage and
18 Defendants’ use of wires that forced multiple windows to stay partially open;
19 d) Severe structural damage to the roof, walls and other areas of the apartment
20 units building.
21
37. Defendants, received notice of these defective conditions and resulting notice
22
violations from code enforcement officers sometime on or around January 16, 2017.
23
38. These substandard conditions were not caused by acts or omissions of the Plaintiffs.
24
25 39. On numerous occasions, Plaintiffs requested that Defendants make the necessary
26 repairs, but Defendants failed and/or refused to do so. Defendants refused and never corrected
27 the aforesaid conditions.

28
7
40. However, Defendants failed to ameliorate the uninhabitable conditions of the
1
2 Premises within ninety (90) days after having both actual and constructive notice.
3 41. Defendants breached the implied warranty of habitability by renting and
4 maintaining said property in a dangerous, defective and unhealthful condition as set forth
5
above and failed to correct said housing and building safety violations, so to make the Premises
6
fit for human habitation as set forth above and defined by, but not limited to, California Civil
7
Code section § 1941.1.
8
42. Plaintiffs suffered damages as a result of the breach, including personal property
9
10 damage and personal injuries.
11 43. Plaintiffs also suffered incidental and consequential damages according to proof.
12 44. As a direct and proximate result of Defendants' conduct, Plaintiffs have suffered
13
and will continue to suffer illness, physical injury, mental stress, emotional stress, discomfort,
14
annoyance, anxiety, loss of value of their leasehold and property damage in an amount to be
15
determined at trial.
16
17
18 SECOND CAUSE OF ACTION
19 TORTIOUS BREACH OF THE WARRANTY OF HABITABILITY

21
45. Plaintiffs repeat, re-allege and incorporate by reference each and every relevant
22
23
herein full.
24
25 Defendants are a lessor/owner of a building intended for human occupancy.
26 46. Under California Civil Code § 1941, it is a landlord’s statutory duty to make
27 residential premises habitable. The lessor must put the premises into a condition fit for human
28
occupancy and has a duty to repair all subsequent dilapidations (Civ. Code, § 1941).
8
47. Defendants conduct of “gutting” the Premises during and after Plaintiffs were
1
2 involuntarily forced to vacate was extreme and outrageous conduct.
3 48. Moreover, Defendants haphazard reconstruction of adjacent units, the fact that the
4 Plaintiffs’ unit did not follow proper procedures or timely repair the habitability deficiencies in
5
the Premises and proper notice was not given, was extreme and outrageous conduct.
6
49. Further, Defendants willfully exposed Plaintiffs to Chrysotile Asbestos containing
7
materials on multiple occasions. Defendants had prior knowledge and performed subsequent
8
testing that demonstrated that there was friable Chrysotile asbestos containing debris, located
9
10 in, near and around Plaintiffs’ subject premises.
11 50. Without good cause, Defendants failed to repair all subsequent dilapidations
12 required pursuant to California Civil Code § 1941 and failed to correct all subsequent
13
dilapidations without cause for over ninety (90) days since causing the Premises to become
14
uninhabitable.
15
51. Plaintiffs have been damaged by Defendants' conduct in an amount to be proven at
16
17 trial.
18 52. As a direct and proximate result of Defendants' conduct, Plaintiffs have suffered
19 and will continue to suffer illness, physical injury, mental stress, emotional stress, discomfort,
20 annoyance, anxiety, loss of value of their leasehold and property damage in an amount to be
21
determined at trial.
22
53. Defendants' conduct tortuously breaching the implied warranty of habitability has
23
been intentional, malicious and oppressive, thereby entitling Plaintiffs to punitive damages in
24
25 an amount to be proven at trial.
26 ///
27 ///
28
///
9
THIRD CAUSE OF ACTION
1
2 VIOLATIONS OF CIVIL CODE SECTION § 1940.2
5
6
herein full.
7
55. Under California Civil Code § 1940.2, acts of theft, extortion, or menacing conduct
8
by landlord seeking to have tenant vacate dwelling; Civil action and penalty; provides in
9
10 pertinent part:
11 (a) It is unlawful for a landlord to do any of the following for the purpose of influencing
12 a tenant to vacate a dwelling; (3) Use, or threaten to use, force, willful threats, or
13
menacing conduct constituting a course of conduct that interferes with the tenant’s
14
quiet enjoyment of the premises in violation of Section 1927 that would create an
15
apprehension of harm in a reasonable person.
16
17 56. Defendants have violated California Civil Code Section § 1940.2 by using or
18 threatening to use force, willful threats or menacing conduct, in a course of conduct that
19 interfered with Plaintiffs' quiet enjoyment of the Premises by, among other things, threatening
20 destruction of Plaintiffs’ personal property, threats of trespass and numerous other threats to
21
Plaintiffs while Plaintiffs have had lawful right to the possession of the Premises and property
22
within.
23
57. Further, Defendants violated the aforementioned statute by using or threatening to
24
25 use force, willful threats, or engaging in menacing conduct which did constitute a course of
26 conduct that interfered with Plaintiffs’ quiet enjoyment of the Premises in violation of
27 California Civil Code § 1927 that would create an apprehension of harm to a reasonable
28
person.
10
58. The above-described activities of Defendants rendered the premises unfit for the
1
2 purposes for which they are leased and deprived Plaintiffs of the beneficial enjoyment of the
3 premises.
4 59. Plaintiffs have sustained actual damages as a direct result of the unlawful conduct
5
of Defendants.
6
7
FOURTH CAUSE OF ACTION
8
INTENTIONAL INFLICTION OF EXTREME EMOTIONAL DISTRESS
9
12 general allegation and operative fact contained in the previous paragraphs as though set forth
13
herein full.
14
61. Plaintiffs and Defendants were in a landlord-tenant relationship at all material times
15
relevant to this Complaint and as such gave Defendants a position of power that Defendants
16
17 used to damage Plaintiffs’ interests in real and personal property rights.
18 62. Defendants’ actions of wrongfully evicting Plaintiffs, damaging their personal
19 property and involuntarily forcing Plaintiffs to relocate with hours of just oral notice was
20 outrageous and extreme conduct that Defendants performed intentionally to force Plaintiffs to
21
vacate the Premises.
22
63. Defendants’ conduct in committing the acts alleged above constituted extreme and
23
outrageous behavior calculated to cause, and did in fact cause, Plaintiffs to suffer humiliation
24
25 and severe emotional and physical distress.
26 64. Defendants’ actions were intended by their acts to cause, or knew to a substantial
27 certainty that their acts would cause, and/or acted in reckless disregard of the consequences of
28
11
their acts to cause, the damage and injuries to Plaintiffs which were a direct and foreseeable
1
2 results of their acts.
3 65. As a direct and proximate result of Defendants’ conduct, Plaintiffs have suffered
4 great and foreseeable mental and emotional distress, anxiety, discomfort, sleeplessness,
5
depression and aggravation, all-inclusive to their general damages in a sum to be determined
6
according to proof at trial.
7
8
FIFTH CAUSE OF ACTION
9
10 NEGLIGENT INFLICTION OF EXTREME EMOTIONAL DISTRESS

13
14
herein full.
15
67. By virtue of the landlord-tenant relationship established between the parties at all
16
17 relevant times mentioned in this Complaint, the parties were in a special relationship giving
18 rise to a heightened duty of care owed by Defendants to Plaintiffs.
19 68. Defendants knew, or by reasonable care should have known, that the negligent acts
20 asserted in the preceding paragraphs would lead to the harms suffered by Plaintiffs.
21
69. As a direct and proximate result of Defendants’ negligent acts, Plaintiffs have
22
suffered great and foreseeable mental and emotional distress, present anxiety, discomfort,
23
sleeplessness, depression, and aggravation, all of which have caused serious emotional distress
24
25 by both Plaintiffs. Defendants’ negligent acts were the substantial and primary factor in
26 bringing about the harms that caused Plaintiffs’ emotional distress.
27 70. Defendants’ failure to repair these dangerous and defective conditions was
28
oppressive and malicious within the meaning California Civil Code § 3294. Defendants’ failure
12
to repair these dangerous and defective conditions was willful and with conscious disregard of
1
2 Plaintiffs’ rights and safety and subjected Plaintiffs’ to cruel and unjust hardship in conscious
3 disregard of Plaintiffs’ rights. Plaintiffs are thus entitled to an award of punitive damages in an
4 amount appropriate to punish and make an example of Defendants.

5
6
SIXTH CAUSE OF ACTION
7
CONSTRUCTIVE EVICTION
8
(Against All Defendants and Does 1-25)
9
12 herein full.
13
72. Plaintiffs held a leasehold interest in and were tenants of the Premises while the
14
Defendants named in this cause of action owned and/or managed the Premises.
15
73. It is well established in California and under common law that a landlord commits a
16
17 constructive eviction when the landlord, or someone acting under his authority directly or
18 indirectly, causes any disturbance of a tenant's quiet possession whereby the Premises are
19 rendered unfit for occupancy for the purpose for which they are designed, or if the tenant is
20 deprived of the beneficial enjoyment of the Premises.
21
74. At all relevant times herein, Defendants’ duties as alleged herein extended to
22
Plaintiffs.
23
75. Defendants breached its common law and statutory duties by depriving Plaintiffs of
24
25 the quiet enjoyment of their home, by means of wrongful physical entry and physical removal
26 of Plaintiffs from the Premises, turning off utilities while a tenancy existed and wrongfully
27 terminating the tenancy by numerous other self-help remedies.

28
13
76. Defendants’ actions rendered the Premises intolerable and unfit for residential use
1
2 due to the uninhabitable conditions as alleged in this Complaint in addition to Defendants’
3 unreasonable reconstruction efforts which further interfered with Plaintiffs’ rights in the
4 Premises.
5
77. As a result of Defendants causing the Premises to become uninhabitable, the
6
Plaintiffs were forced to vacate the Premises.
7
78. Defendants knew, or reasonably should have known, that Plaintiffs would be
8
injured as a result of their breach of the common law and statutory duties.
9
10 79. As a direct and proximate result of this constructive eviction, Plaintiffs suffered
11 emotional mental anguish and pain, all to their general damage in a sum to be proven at the
12 time of trial.
13
80. Defendants failure to maintain the Premises in a habitable condition therefore
14
constituted a wrongful constructive eviction of Plaintiffs from the Premises.
15
16
17 SEVENTH CAUSE OF ACTION
18 BREACH OF THE COVENANT OF QUIET ENJOYMENT

21
22
herein full.
23
82. Implied in the rental agreement between Defendants and Plaintiffs is a covenant
24
25 that the Defendants would not interfere with Plaintiffs’ quiet enjoyment of the Premises during
26 the term of the tenancy.
27 83. Defendants breached this duty and implied covenant by their conduct described
28
above, including unlawfully entering the Premises and removing and keeping Plaintiffs’
14
personal property, moving Plaintiff’ belongings, refusing access to Plaintiffs and obstructing
1
2 the Premises with reconstruction equipment.
3 84. Defendants ignored repairs to remedy the unreasonable interference they caused to
4 the Premises and/or acted with undue delay in any work performed. Defendants’ reconstruction
5
rendered the Premises uninhabitable for an unreasonable period of time.
6
85. The above-described activities of Defendants rendered the premises unfit for the
7
purposes for which they are leased and deprived Plaintiffs of the beneficial enjoyment of the
8
premises.
9
10 86. Defendants knew, or reasonably should have known, that Plaintiffs would suffer
11 damages as a result of this breach.

12 87. Defendants’ activities constituted such a disturbance of Plaintiffs’ use and
13
enjoyment of the Premises that Plaintiffs were forced to quit and vacate the premises.
14
88. As a result of Defendants' actions Plaintiffs have suffered damages.
15
16
17 EIGHT CAUSE OF ACTION
18 BREACH OF RENTAL AGREEMENT

21
22
herein full.
23
90. All conditions required by the lease agreement for Defendants’ performance
24
25 occurred.
26 91. Defendants breached the lease agreement by failing and refusing to take any
27 reasonable steps in maintaining the Premises, by failing to make the Premises habitable, failing
28
15
to repair the defective conditions of the rental Premises and failing to safeguard Plaintiffs’
1
2 personal property.
3 92. As a direct and proximate result of the breach of the lease agreement, Plaintiffs
4 have been denied the beneficial use and enjoyment of the Premises, denied their personal
5
property withheld in the uninhabitable and unsafe Premises, incurred relocation expenses and
6
suffered substantial and severe emotional distress.
7
93. In addition to the foregoing, Plaintiffs have incurred legal expenses and have paid
8
rents and incurred liability for rents for substandard conditions and suffered general and special
9
10 damages, the exact amount of which is not been ascertained, but will be according to proof at
11 trial.
12
13
NINTH CAUSE OF ACTION
14
NEGLIGENCE
15
16
19 herein full.
20 95. At all times mentioned herein, the provisions of the California Civil Code,
21
California Health & Safety Code, Uniform Housing Code, Uniform Building Code, Uniform
22
Plumbing Code, and Uniform Mechanical Code, including with limitations, Civil Code §§
23
1714: 1927: 1941 et seq; 1942 et seq; and 3479, and Health & Safety Code §§ 17910 and
24
25 47920.3, imposed statutory duties on Defendants to maintain the Subject Property in good
26 repair and in a safe and habitable condition.
27 96. By reason of the landlord-tenant relationship Defendants owed Plaintiffs the duty:
28
16
a) To exercise reasonable care in the ownership, management and control of
1
2 the Premises;
3 b) To refrain from interfering with Plaintiffs’ full use and quiet enjoyment of
4 the Premises;
5
c) Comply with all applicable state and local laws regarding Plaintiffs’ rights
6
as a tenant;
7
d) Not to cause injury to Plaintiffs’ person or property.
8
97. Defendants carelessly and negligently managed the property operations, resident
9
10 satisfaction, repairs and/or supervision of the apartment complex property so that it was
11 dangerous and unsafe for use by tenants and their guests, including Plaintiffs, and carelessly
12 and negligently failed to maintain the apartment complex and its fixtures in good repair.
13
98. As a direct and proximate result of these acts and omissions of Defendants,
14
Plaintiffs have suffered general and special damages in an amount to be proven at trial.
15
16
17 TENTH CAUSE OF ACTION
18 NEGLIGENCE PER SE

21
22
herein full.
23
100. Plaintiffs allege that the duty specified in a statute replaces the general standard of
24
25 care in a negligence action. The statutory duty is a higher standard of care and a breach of the
26 duty specified in a statute may conclusively establish a Defendants’ negligence.
27 101. At all times relevant Plaintiffs, belonged to a class of persons for which these
28
statutes were designed to offer protection. The harm that has occurred to Plaintiffs as a result of
17
Defendants’ violation of the laws, codes, ordinances and statutes referenced above is the type
1
2 of harm these laws, codes, ordinances and statutes were designed to prevent.
3 102. Defendants, by their conduct as alleged herein, negligently and carelessly
4 operated and managed the subject Premises, and thereby breached duties owed to Plaintiffs,
5
including those listed in the paragraph immediately above.
6
103. Such acts and omissions were a breach of Defendants statutory obligations as
7
outlined above, and negligence per se.
8
104. As a proximate result, Plaintiffs suffered injuries and damages as set forth in this
9
10 Complaint.
11
12 ELEVENTH CAUSE OF ACTION

13
RETALIATORY EVICTION
14
15
16
18 herein full.
19 106. At all times relevant herein, California Civil Code § 1942.5 provided that if a
20 landlord "retaliates against the [tenant] because of the exercise by the [tenant] of his rights
21
under this chapter...the [landlord] may not recover possession of a dwelling in any action or
22
proceeding, cause the [tenant] to quit involuntarily, increase the rent, or decrease any services
23
within 180 days of enumerated conditions.
24
25 107. Plaintiffs demanded the restoration of the Premises and the safeguarding of their
26 personal property within as of January 16, 2017.
27 ///
28
18
108. Shortly after Defendants were notified by Plaintiffs of their intention of exercising
1
2 their legal rights, Defendants punished Plaintiffs by engaging in actions to involuntarily force
3 Plaintiffs to leave the Premises.
4 109. Defendants engaged in retaliatory conduct after Plaintiffs notified Defendants and
5
housing enforcement authorities specifically by:
6
a) Demanding Plaintiffs immediately vacate the Premises once Plaintiffs
7
demanded safeguarding of their personal property and requested relocation
8
assistance;
9
10 b) Refusing to refund Plaintiffs security deposit until Plaintiffs came to the
11 Premises and began to attempt to move their personal property;

12 c) Threatened moisture damage to Plaintiffs personal property if they did not
13
remove all their personal property due to large holes in the Premise’s roof
14
allowing rain to soak Plaintiffs’ personal property;
15
d) Placing a decontamination barrier blocking off all access to the second story of
16
17 the Premises after Plaintiffs successfully requested a South Coast Quality Air
18 Inspector to visit the Premises;
19 e) Removing Plaintiffs’ mail without their consent from the Plaintiffs’ locked
20 mailbox after Plaintiffs’ requested updates of the notice violations pertaining to
21
the Premises;
22
f) Defendants refusing to remediate the habitability issues complained of by
23
Plaintiffs, and instead used Plaintiffs premises as the sole unit supplying power
24
25 to the adjacent units machinery for reconstruction efforts;
26 g) Placing fixtures from the damaged adjacent unit inside Plaintiffs kitchen to block
27 off access to Plaintiffs patio where they had previously documented ongoing
28
illegal reconstruction efforts of the adjacent units.
19
110. In retaliation for Plaintiffs’ demands for restoration of utilities, flooring, protective
1
2 equipment for Plaintiffs’ personal property, timeframes for a return to the apartment and
3 updates regarding the habitability, Defendants continued to allow the Premises to be
4 uninhabitable, without good cause, constructively evicting Plaintiffs from the Premises.
5
111. Defendant's retaliatory action was unlawful, pursuant to Civ. Code, § 1942.5.
6
112. As a proximate result of Defendants’ unlawful retaliatory action, Plaintiffs suffered
7
mental anguish, pain, medical expenses and physical injury, all to their general damage in a
8
sum to be proven at trial.
9
10
11 TWELFTH CAUSE OF ACTION

12 VIOLATIONS OF CIVIL CODE § 1954
13
14
15
16
17 herein full.
18 114. At all times relevant herein, Cal. Civ. Code § 1954 has stated that a landlord may
19 enter a dwelling unit only in certain situations and after providing the requisite notice.
20 115. Defendants entered into Plaintiffs’ home without any notice and without Plaintiffs’
21
presence, in order for Defendants’ sole benefit to meet insurance adjusters and begin
22
construction.
23
116. Defendants violated the aforementioned statute by accessing the property they
24
25 rented to Plaintiffs at other than normal business hours, without their permission and without
26 prior notice given.
27 117. Plaintiffs never gave consent to Defendants to enter into the Premises other than to
28
comply with the law.
20
118. The conduct of Defendants constitutes oppression, fraud, and malice thereby
1
2 entitling Plaintiffs to an award of punitive damages. Defendants acted with a conscious
3 disregard of the rights of Plaintiffs, and/or ratified or authorized the said conduct. Plaintiffs are
4 further informed and believe, and thereon allege, that this advance knowledge, or act of
5
oppression, fraud, or malice or act of, ratification or authorization was on the part of a
6
managing agent or owner acting on behalf of Defendants.
7
8
THIRTEENTH CAUSE OF ACTION
9
10 VIOLATIONS OF CIVIL CODE § 789.3

13
14
herein full.
15
120. A landlord-tenant relationship was created between Defendants and Plaintiffs as
16
17 discussed in detail in this Complaint.
18 121. Civil Code Section § 789.3 provides, “a landlord shall not, with intent to terminate
19 the occupancy under any lease or other tenancy or estate at will, however created, of property
20 used by a tenant as his or her residence, willfully: (1) prevent the tenant from gaining
21
reasonable access to the property by changing the locks or using a boot lock or by any other
22
similar method or device; (2) remove outside doors or windows; or (3) remove from the
23
Premises the tenant’s personal property, the furnishings, or any other items without the prior
24
25 written consent of the tenant”.
26 122. Defendants prevented Plaintiffs from gaining reasonable access to the entire
27 upstairs portion of the Premises, the kitchen and other areas of the Premises at different times.
28
21
123. Defendants improperly accessed Plaintiffs’ mailbox and spread mail across
1
2 Plaintiffs’ front entrance without any reasonable basis or purpose other than to intimidate
3 and/or threaten Plaintiffs to vacate the Premises.
4 124. Defendants removed tables, furniture and other large items from the adjacent
5
damaged apartment and placed these items inside Plaintiffs’ kitchen, blocking off all access to
6
the kitchen and backyard patio.
7
125. Defendants physically prevented Plaintiffs’ vehicle from entering the Premises, by
8
physically blocking Plaintiffs and their agents attempting to remove their personal property
9
10 within the Premises.
11 126. Defendants willfully, and for the purpose of terminating Plaintiffs’ residency,
12 removed the Plaintiffs personal property, the furnishings, and other items from the Premises
13
without the prior written consent of Plaintiffs.
14
127. As a proximate result of Defendants’ unlawful conduct, Plaintiffs have sustained
15
actual damages and Plaintiffs have been involuntarily forced and evicted from surveying the
16
17 current damages in totality.
18 128. Plaintiffs are entitled to $100 per day, statutory penalty for each day or part of a
19 day and Defendants remain in violation of California Civ. Code, § 789.3, but in no event less
20 than $ 250 total.
21
129. Plaintiffs are entitled to reasonable attorney’s fees under California Civ. Code,
22
§789.3, in an amount to be determined at trial for attorney’s fees and Plaintiffs’ costs of suit
23
incurred herein.
24
25 ///
26 ///
27 ///
28
///
22
FOURTEENTH CAUSE OF ACTION
1
2 WRONGFUL/TORTIOUS EVICTION
3 (Against all defendants and does 1-25)
4 130. Plaintiffs repeat re-allege and incorporate by reference each and every relevant
5
allegation and operative fact contained in the previous paragraphs as though set forth here in
6
full.
7
131. In order to establish a claim for wrongful/tortious eviction, Plaintiffs must prove
8
all of the following: (i) that Plaintiff has property rights and privileges with regard to the use or
9
10 enjoyment that have been interfered with; (ii) there has been a substantial invasion of those
11 rights or privileges; (iii) the conduct of the Defendants is the legal cause of the invasion of
12 Plaintiffs rights or privileges; and (iv) the invasion is intentional and unreasonable, or
13
unintentional but negligent, reckless, or ultra-hazardous. Tooke v. Allen (1948) 85 Cal.App.2d
14
230, 236-237.
15
132. Plaintiffs had property rights and privileges with regard to the use and enjoyment
16
17 because, since 2015, Plaintiffs lived on the Premises and were in actual, peaceful possession of
18 the Premises pursuant to the written rental agreement executed by and between Plaintiffs and
19 Defendants.
20 133. Defendants violated California Civil Code § 1946 (1) by not providing written
21
notice of sixty (60) days to Plaintiffs as required by law. Defendants breached this statute by
22
not only failing to properly provide the proper eviction notice of sixty (60) days when Plaintiffs
23
lived at the Premises for more than one year but failed to provide any written eviction notice.
24
25 134. Defendants have violated California Civil Code § 1162 by not providing written
26 notice of termination of the tenancy.
27
28
23
135. Defendants’ above mentioned actions in this Complaint violate California Civil
1
2 Code § 1953, which requires due care, notice and protection of personal property of a tenants”
3 property.
4 136. Further, Plaintiffs’ use and enjoyment of the Premises were interfered with and
5
Defendants caused a substantial invasion of Plaintiffs’ rights and privileges to the Premises.
6
137. Defendants improperly accessed the Premises, preventing Plaintiffs from
7
reasonable access to the Premises. Further, Defendants denied Plaintiffs access at later dates to
8
the entire kitchen, outside patio, and upstairs area, all of which contained Plaintiffs personal
9
10 property that was still left behind.
11 138. Defendants threatened personal property being destroyed or damaged if it was not
12 removed from the Premises. Defendants subsequently threatened Plaintiffs numerous times,
13
regarding the same subject all while the Premises were declared by Tustin Code Enforcement
14
to be uninhabitable and unsafe to enter or occupy.
15
139. Defendants disconnected the electrical utilities within the Premises to obtain power
16
17 to use for construction efforts at the adjacent unit to Plaintiffs’.
18 140. In order to use Plaintiffs’ Premises as a power source, Defendants ran electrical
19 wiring throughout the Premise, blocking Plaintiffs’ access and left windows open/ajar during
20 the day and night in order to connect the wires to the adjacent unit(s) to provide electrical
21
power.
22
141. Thus, Defendants were the actual and legal cause of the invasion of Plaintiffs’ rights
23
and privileges to the Premises.
24
25 142. As such, Defendants’ repeated attempts and success in unlawfully removing
26 Plaintiffs, as stated above, illustrates that Defendants’ conduct against Plaintiffs was
27 intentional.
28
24
143. As a direct and proximate result of Defendants' actions against Plaintiffs, as herein
1
2 referenced, Plaintiffs have suffered and continues to suffer general, consequential and special
3 damages and emotional distress, all to their damages in an amount to be determined by proof at
4 trial.
5
144. Defendants' actions were wrongful and justify the imposition of punitive damages.
6
7
FIFTEENTH CAUSE OF ACTION
8
FRAUD/CONCEALMENT
9
10 (Against all Defendants and Does 1-25)
11 145. Defendants have concealed or suppressed material facts by telling Plaintiffs facts
12 to mislead Plaintiffs or prevent them from discovering the true condition of the Premises,
13
specifically by failing to disclose the environmental testing and presence of asbestos and lead
14
based paint at the Premises.
15
146. The environmental status of the Premises and environmental testing done after the
16
17 fire occurred were material facts, known only to Defendants and not known to Plaintiffs, nor
18 was the report(s) or tests reasonably discoverable to Plaintiffs.
19 147. Defendants knew Plaintiffs did not have knowledge prior to entering the lease
20 agreement. Defendants failed to disclose the use of asbestos at the Premises as required by law
21
and failed to disclose this condition after the asbestos and lead based paint were disturbed by
22
fire damage. Defendants engaged in this behavior to deceive Plaintiffs.
23
148. Plaintiffs reasonably relied on Defendants’ deceptions and executed the lease and
24
25 subsequently relied on Defendants’ assertions that the Premises were safe after the fire
26 damaged the Premises.
27 ///
28
25
149. Plaintiffs were harmed by Defendants’ deception due to the presence of harmful
1
2 asbestos expose, lead based paint exposure and Defendants’ failure to provide any protective
3 equipment to Plaintiffs.
4 150. Plaintiffs experienced physical injury, including headaches, pain, and discomfort,
5
rendering both Plaintiffs to feel sick and nauseous upon entering the Premises in attempting to
6
remove their personal belongings.
7
151. Defendants’ concealment was a substantial factor in causing harm to Plaintiffs. In
8
concealing the presence of asbestos, lead based paint and other hazards at the Premises,
9
10 Defendants, and each of them, were acting with full knowledge of the consequences and
11 damage being caused to Plaintiffs and their property.

12 152. Defendants’ actions were willful oppressive and malicious. Accordingly, Plaintiffs
13
are entitled to punitive damages against Defendants.
14
///
15
///
16
17 ///
18 ///
19 ///
20 ///
21
///
22
///
23
///
24
25 ///
26 ///
27 ///
28
///
26
PRAYER
1
2 153. WHEREFORE, Plaintiffs request judgment against Defendants, and each of them,
3 for the following:
4 1. For general damages in excess of this Court’s minimum jurisdiction

5
according proof;
6
2. Actual damages and attorney’s fees and costs pursuant to Civ. Code § 1942;
7
3. For special damages, according to proof;
8
4. For prejudgment interest as provided by law;
9
10 5. For the value of property destroyed, damaged or missing, in an amount to be
11 proven at trial;
12 6. For costs of suit incurred herein;
13
7. For attorney’s fees;
14
8. For investigation costs;
15
9. For punitive and exemplary damages, pursuant to Civil Code §3294 and as
16
17 allowed by law, according to proof at trial:
18 10. For any other and further relief, the court considers just and proper.
19
20
Dated: 09/11/2018 THE LAW OFFICES OF RYAN JAMES SMYTHE
21
22
23 By:_____________________________________
24 Ryan James Smythe
Attorney for Plaintiffs
25
26
27
28
27

Bernardo Magana & Yesenia Gonzales V Sterling Property Management, Inc., Et Al

Загружено:

Сведения о документе

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Bernardo Magana & Yesenia Gonzales V Sterling Property Management, Inc., Et Al

Загружено:

Авторское право:

Доступные форматы

1 Ryan J. Smythe Esq.

5 Attorneys for Plaintiffs,

10 BERNARDO MAGANA and YESENIA Case No.: 30-2018-00984428-CU-CJC

12 Plaintiffs, First Amended Complaint For:

13 v. 1. Breach of the Implied Warranty Of

4 County of Orange, State of California.

5 2. Plaintiff YESENIA GONZALES, (hereinafter referred to as “Plaintiff” and/or

20 once such information is discovered.

27 Plaintiffs will amend this Complaint accordingly.

15 III. FACTUAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION

2 Premises based on Defendants’ misrepresentations and concealment of facts regarding

3 Defendants’ covenant to maintain habitable Premises.

10 parties for the Premises.

19 being disturbed or released by their activities.

2 omissions of themselves or any guests.

17 unequivocally demanded termination of the Plaintiffs’ tenancy or included a mandatory

18 statement regarding reclaiming abandoned personal property as required pursuant to (Civ. C §

26 to enter their residence.

17 arranged, contracted, hired, supervised, monitored, or otherwise undertook the renovation

18 described above, thereby rendering the Premises uninhabitable, hazardous, toxic,

2 BREACH OF THE IMPLIED WARRANTY OF HABITABILITY

3 (Against All Defendants and Does 1-25)

27 the aforesaid conditions.

3 41. Defendants breached the implied warranty of habitability by renting and

10 damage and personal injuries.

18 SECOND CAUSE OF ACTION

19 TORTIOUS BREACH OF THE WARRANTY OF HABITABILITY

25 Defendants are a lessor/owner of a building intended for human occupancy.

2 involuntarily forced to vacate was extreme and outrageous conduct.

10 in, near and around Plaintiffs’ subject premises.

25 an amount to be proven at trial.

2 VIOLATIONS OF CIVIL CODE SECTION § 1940.2

3 (Against All Defendants and Does 1-25)

10 (Against All Defendants and Does 1-25)

17 used to damage Plaintiffs’ interests in real and personal property rights.

18 62. Defendants’ actions of wrongfully evicting Plaintiffs, damaging their personal

25 and severe emotional and physical distress.

2 results of their acts.

10 NEGLIGENT INFLICTION OF EXTREME EMOTIONAL DISTRESS

11 (Against All Defendants and Does 1-25)

18 rise to a heightened duty of care owed by Defendants to Plaintiffs.

26 bringing about the harms that caused Plaintiffs’ emotional distress.

4 amount appropriate to punish and make an example of Defendants.

27 terminating the tenancy by numerous other self-help remedies.

2 due to the uninhabitable conditions as alleged in this Complaint in addition to Defendants’

17 SEVENTH CAUSE OF ACTION

18 BREACH OF THE COVENANT OF QUIET ENJOYMENT

19 (Against All Defendants and Does 1-25)

26 the term of the tenancy.

2 the Premises with reconstruction equipment.

11 damages as a result of this breach.

17 EIGHT CAUSE OF ACTION

18 BREACH OF RENTAL AGREEMENT

19 (Against All Defendants and Does 1-25)

26 repair and in a safe and habitable condition.

17 TENTH CAUSE OF ACTION

19 (Against All Defendants and Does 1-25)

26 duty specified in a statute may conclusively establish a Defendants’ negligence.

3 102. Defendants, by their conduct as alleged herein, negligently and carelessly

12 ELEVENTH CAUSE OF ACTION

26 personal property within as of January 16, 2017.

3 Plaintiffs to leave the Premises.

10 b) Refusing to refund Plaintiffs security deposit until Plaintiffs came to the