2946 Garnet Avenue
San Diego, CA 92109
Plaintiff, In Pro Per
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
LAURA LYNN and MICHEAL A. PIETRCZAK,
VICKI KAHIA; THE VICKI KAHIA TRUST; JAMES JORDAN; JUSTIN EARLEY; JUDD, INC.; CAPITAL REAL ESTATE VENTURES, INC.; RANDY RIVERA; PETER MICHAEL ROCCA; ROCK SOLID REAL ESTATE CORP.; ANTHONY CARNEVALE, and DOES 1 through 50, inclusive; )
Defendants. ) )
) CASE NO.: 37-2013-00041919-CU-BT-CTL
PROPOSED THIRD AMENDED COMPLAINT FOR TORTIOUS INTERFERENCE WITH CONTRACT, BREACH OF CONTRACT, BREACH OF IMPLIED WARRANTY, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, CONVERSION, NEGLIGENT INTERFERENCE WITH PROSPECTIVE ECONOMIC RELATIONS AND INJUNCTIVE RELIEF
JURY TRIAL DEMANDED
Jurisdiction: Action is an unlimited civil case (exceeds $25,000)
1. Plaintiffs LAURA LYNN and MICHEAL A. PIETRCZAK allege causes of action against VICKI KAHIA, VICKI KAHIA AS TRUSTEE OF THE VICKI KAHIA TRUST; JAMES JORDAN, JUSTIN EARLEY, JUDD, INC., CAPITAL REAL ESTATE VENTURES, INC., RANDY RIVERA, PETER MICHAEL ROCCA, ROCK SOLID REAL ESTATE CORP., ANTHONY CARNEVALE, and DOES 1 THROUGH 50.
2. a. Each plaintiff named above is a competent adult.
b. Plaintiff MICHEAL A. PIETRCZAK has complied with the fictitious business name laws and is doing business under the fictitious name THE ESTATE SALE.
3. a. Each defendant named above is a natural person except, JUDD, INC., CAPITAL REAL ESTATE VENTURES, INC., ROCK SOLID REAL ESTATE CORP, each of which is a corporaton licensed to do business in the state of California, and VICKI KAHIA AS TRUSTEE OF THE VICKI KAHIA TRUST, a trust.
b. The true names of defendants sued as Does are unknown to plaintiffs.
4. Plaintiffs are not required to comply with claim statutes.
5. This action is subject to this venue because a defendant entered into a contract here, a defendant lived here when the contract was entered into, a defendant lives here now, the contract was to be performed here, a defendant is a corporation and its principal place of business is here, and real property that is the subject of this action is located here.
6. The statements above apply to each of the causes of action enumerated below.
COME NOW PLAINTIFFS WHO ARE INFORMED AND BELIEVE AND ALLEGE THEREUPON AS FOLLOWS:
7. Plaintiffs are and at all times material hereto individuals residing in the County of San Diego, State of California and the holders pursuant to the terms of a written lease agreement for the real property commonly known as 2946 GARNET AVENUE, SAN DIEGO, CALIFORNIA 92109. A true and correct copy of said lease is attached hereto as Exhibit “2” and hereby incorporated as though fully set forth at this place. The lease for 2946 Garnet Avenue provided.
8. At all times herein mentioned, Plaintiffs were in possession of said property and, residing thereon in the capacity of night watch and also conducting a business thereon under the fictitious name of The Estate Sale. The plaintiffs paid substantially more rent than their unit was worth, made major repairs and invested heavily into bringing in customers to a property that has poor access and visibility from the street with the expectation of purchasing the property when the owner defendant JAMES JORDAN decided to sell for a reasonable price. At the time the lease was signed, the property the unit was on was listed for about 1.3 million dollars.
9. The property at 2946 Garnet Avenue was part of two parcels on which there was an additional mixed residential-commercial structure occupied by third parties and a billboard. This larger parcel is hereinafter referred to as THE PROPERTY. A true and correct legal description of THE PROPERTY is attached hereto as Exhibit “1” and is hereby incorporated as though fully set forth at this place. The legal description provided. The lease by which Plaintiffs occupied said property contained a “right of first refusal” provision in article 13 giving the Plaintiffs a thirty day right of first refusal to purchase THE PROPERTY at the price and terms accepted by the landlord by a third party. Landlord was bound by the terms of the lease contract to give the tenants a 30 day written notice of the agreement to sell. This right is referred to as ROFR.
10. Defendant JUSTIN EARLEY (“EARLEY”) is duly licensed as a real estate broker in the State of California and conducts real estate management business through Defendant JUDD, INC. He also conducts business through defendant CAPITAL REAL ESTATE VENTURES, INC. (“CREV”), whose broker of record is defendant RANDY RIVERA (“RIVERA”).
11. Defendant ANTHONY CARNEVALE (“CARNEVALE”) is a duly licensed real estate salesperson in the state of California and is supervised directly by PETER MICHAEL ROCCA (“ROCCA”), the broker of record of ROCK SOLID REAL ESTATE CORP. These three defendants together are referred to as ROCK SOLID.
12. JAMES JORDAN (“JORDAN”) had purchased THE PROPERTY in part with a loan from Sterling Bank who had merged into Comerica Bank and in part with a second loan.
13. VICKI KAHIA (“KAHIA”) is an individual who set up a trust, THE VICKI KAHIA TRUST (“THE TRUST”), as an alter ego. KAHIA is the trustee. KAHIA’s testimony and documentation shows she used THE TRUST money borrowed against KAHIA’s residence which is held in THE TRUST to purchase THE PROPERTY in her own name. There is no recordation of a lien from THE TRUST against THE PROPERTY.
14. The true names and capacities of Defendants sued herein as Does 1 through 50, inclusive, are unknown to Plaintiff, who sues said Defendants by such fictitious names and will amend this Complaint to include their true names and capacities when the same are ascertained. Plaintiffs are informed and believe, and thereon allege, that each of the fictitiously named Defendants is in some manner responsible for the occurrences herein alleged, and that Plaintiff’s, damages as herein alleged, were proximately caused by these Defendants.
15. At all times material hereto, Defendants, and each of them, were the agents and employees of each other, and, in doing the acts herein alleged, were acting within the scope of their authority as such agents and employees, and with the express and implied permission and consent of their co‑defendants, except KAHIA, THE TRUST and JORDAN who were principles.
16. The defendants exclusive of JORDAN conspired together to interfere with the PLAINTIFFS’ ROFR in order to increase their own personal financial worth. The conspiracy started as early as January 2012, with defendants joining at different times and included parties who are not named here as defendants, because their roles were not known before discovery.
17. Though PLAINTIFFS did not become aware of the scheme before January 2013, the conspirator DEFENDANTS began their plan as early as January 2012 when an investor who specializes in defaulted properties named Tony Bral entered an escrow with JORDAN to purchase THE PROPERTY for $1,205,000 with a $1,011,047 loan . This is called the JORDAN-BRAL ESCROW. The title and escrow company was CAL TITLE. The listing agent was CARNEVALE. The buyer’s broker was EARLEY through CAPITAL REAL ESTATE VENTURES, INC.. Th purchase agreement was cancelled a few months later, then reinstated, then plaintiffs are not aware yet what happened to the JORDAN-BRAL ESCROW. PLAINTIFFS believe this is when the scheme to affect a fraudulent short sale flip was commenced. No one informed plaintiffs about the JORDAN-BRAL ESCROW.
18. In October 2012, before the KAHIA offer was accepted, a trust of which LYNN is a beneficiary wrote a full list price offer on THE PROPERTY. It was cash, 30 day escrow and was accompanied by documentation of $8,000,000 in a money market account and $2,000,000 cash. It was written by a reputable broker. CARNEVALE did not respond to the offer. After THE PROPERTY sold, the offering broker inquired and CARNEVALE told him THE PROPERTY sold.
19. LYNN was not aware that a written offer was made by her family trust, nor did she know JORDAN had dropped the list price to $825,000. She was aware that her baby sister wanted to buy THE PROPERTY also, and to share it with LYNN and PIETRCZAK, but thought the 1.3 million dollar price was too high.
20. PLAINTIFFS allege that the defendants exclusive of JORDAN induced defendant JORDAN to breach the terms of his contract to offer the plaintiffs ROFR to purchase the property on the same price and terms as he accepted from another buyer. Each of these parties would receive an economic benefit if KAHIA bought THE PROPERTY instead of the PLAINTIFFS buying THE PROPERTY.
21. A second purchase agreement was signed on December 7, 2012. This is called the JORDAN-KAHIA ESCROW. Escrow was opened on or about December 13, 2012. Seller was JORDAN. Buyer was KAHIA. Title was Cal Title. Escrow was Allison-McCloskey Escrow. Listing agent was CARNEVALE, who changed brokerages to ROCK SOLID REAL ESTATE CORP sometime after Bral went into escrow, but before KAHIA went to escrow. EARLEY through CREV represented the buyer. Same line-up as the JORDAN-BRAL transaction, except the escrow company changed.
22. Cal Title did not participate as escrow agent in the JORDAN-KAHIA transaction. PLAINTIFFS believe Cal Title knew that they could not participate as the escrow agent and not risk liability. Instead, Allison-McCloskey agreed to take over escrow duties.
23. About December 20, 2012 EARLEY approached the Plaintiffs at their business and said he and an investor were interested in purchasing the property. He pointed to the investor, KAHIA, who was in a vehicle in the parking lot. He would not tell Plaintiffs how much he would offer if he decided to buy THE PROPERTY. He asked Plaintiffs how their business was doing, if they wanted to stay, and about the archaic and dangerous electrical system, which the Plaintiffs had tried to correct over time. Plaintiffs thought he was puffed up with himself, pushy and obnoxious. They did not have any idea the women in the vehicle out in the parking lot had actually put in an accepted offer on the property with EARLEY as her broker.
24. EARLEY and KAHIA knew that plaintiffs were operating a business on THE PROPERTY, and received a copy of the lease (exhibit 2) during escrow. This information is disclosed through customary due diligence on a commercial transaction, was in the purchase agreement, was in Cal Title’s file, was referred to in the title report, and was sent by email to escrow as an attachment. EARLEY, by email, expressed disgust with the title company for mentioning the lease and the PLAINTIFFS’ property rights in the title report.
25. The copy of the purchase agreement in the JORDAN-KAHIA transaction obtained from the escrow company has the name “Tony Bral” as a possible buyer assignee crossed out with a thick black pen and no initials. This shows an intent for Kahia to “flip” the property to someone who was willing to pay $345,000 more than she paid. There is also “or assignee” written on the buyer line of the purchase agreement in the JORDAN-KAHIA transaction.
26. Plaintiffs were not given their ROFR. Had plaintiffs been given their right of first refusal as provided by their said lease, at the time it should have been offered, they could have purchased THE PROPERTY in accordance with the terms of said right of first refusal. The lease did contain a clause that said time was of the essence in article 14.
27. At the time said purchase and sale was concluded, by virtue of the facts set forth below and the operation of law as set forth in Pell v. McElroy 36 Cal. 268, (1868) and the cases cited therein and those following its holding, plaintiffs became seized of an equitable interest in said property with a lien superior to that of the buyer’s.
28. MICHEAL PIETRCZAK’S mother consumed large quantities of alcohol while he was in utero. She fed him beer in his baby bottle. PIETRCZAK struggled with alcohol abuse and depression his whole life. Fortunately, he also started a close relationship with God at the age of five. His faith in God saved him from self-destruction, though there was always a struggle. He was completely sober about four years before December 27, 2012.
29. On or about December 27, 2012 PIETRCZAK drank alcohol for the first time in four years and was bashing his head on the ground, requiring medical care. He was taken by ambulance to a hospital. PIETRCZAK was depressed because there were recent cost increases, which were caused by JORDAN and the conspirators. He was also disturbed by people like EARLEY coming in and telling him what he had to do. EARLEY had told PIETRCZAK to re-run electrical conduit to an outside fixture, kind of like EARLEY owned the place.
30. PLAINTIFFS decided to take their first days away from THE PROPERTY in 19 months on January 1, 2013. They went to Sedona where they decided to cut back on the hours of operation of The Estate Sale from 16 hours per day to 10 hours per day, seven days a week. They were not yet aware of the conspiracy to interfere with their ROFR.
31. On that December 31, 2013 the said lease (Exhibit “2” hereto) was in full force and effect and not in default as to the Plaintiffs. At the time the sale to Defendant KAHIA concluded Plaintiffs were unaware that a purchase and sale had taken place. Plaintiffs were never notified of an accepted offer from Defendant KAHIA, JORDAN or any person whomsoever, to purchase THE PROPERTY.
32. KAHIA paid cash for the property, but claimed during the trial turned settlement conference in the related UD case, that she borrowed money against her house to pay for THE PROPERTY. The house is in the name of THE VICKI KAHIA TRUST.
33. On January 1, 2013, after close of escrow, JUSTIN EARLEY and JUDD, INC wrote a letter to the plaintiffs that the property was sold and they should pay $6,360 per month rent to JUDD, INC.
34. The plaintiffs were in Sedona and did not receive the letter from JUDD, INC and EARLEY until January 5. On January 8 the plaintiffs sent a letter to JUDD, INC, JORDAN and attorney Daryl C. Idler on behalf of JORDAN to ask to meet to discuss compensation for the alleged breach of contract. The plaintiffs were not aware of the name of VICKI KAHIA nor had they seen a deed to KAHIA at this point in time.
35. On January 9, JUDD, INC served a three day notice to quit or pay rent to the plaintiffs. There was no documentation of the change of ownership, no return of a $6,000 security deposit or accounting of its assignment in compliance with Civil Code 1950.7, just a demand. Because JORDAN had agreed verbally and by his actions to allow the plaintiffs to pay rent on the 10th of each month, the three day notice would be premature, even if tendered by the rightful owner.
36. On or about January 9, 2013, EARLEY spoke to the plaintiffs in the parking lot and near the entrance to The Estate Sale. EARLEY could have no expectation of privacy, so LYNN taped the conversation on her telephone. In it, JUSTIN EARLEY talks about a “plan” between KAHIA and himself, in which they would buy the property and then work out the issue of having denied the plaintiffs’ ROFR in the first few months after close of escrow.
37. On January 23, 2013, VICKI KAHIA, through her attorney Ted M. Smith, APC, filed an unlawful detainer action against the plaintiffs. The plaintiffs were distressed that their dreams and years of hard work were snatched away from them with the breach of contract sale of the property, but the defendant KAHIA and EARLEY’s insistence on evicting the plaintiffs made things even worse. If the defendants were successful at evicting the plaintiffs, the plaintiffs would lose their home, their entire investment and their dreams. The plaintiffs were able to employ San Diegans, help people clear out properties they were transferring, offer high quality merchandise at reasonable prices to people who could not otherwise afford these items and keep tons of perfectly usable materials out of the landfill. If KAHIA and EARLEY were successful at evicting the plaintiffs, this would all be lost.
38. PLAINTIFFS, who hoped the lack of notice of the sale was just an accidental oversight, realized when an unlawful detainer suit was filed instead of going to a settlement conference, as PLAINTIFFS suggested, that KAHIA and EARLEY were well aware of the ROFR all along and were going to play hardball.
39. EARLEY wrote an email to CARNEVALE, JORDAN, and others on February 1, 2013. He wrote, in part:
“As it turns out the settlement [LAURA LYNN] wants is to purchase the property for $860,000 and have Vicki Kahia carry a note at 6% for 30 years.” He continued later “My counter offer to Laura was she could pay her rent and my legal expenses for the eviction and I would then not evict her.”
40. LAURA LYNN is blessed with a high academic intelligence and wealthy, generous parents who gave LYNN ownership interests in commercial properties. LYNN tries to not be boastful and haughty about these gifts, and the DEFENDANTS seem to have judged her based on her modest appearance. For example, EARLEY wrote an email on February 1, 2013 to escrow and title employees, CARNEVALE, and JORDAN. He wrote, in part:
“ I just want everyone to have these notes in their file in case [LAURA LYNN] is actually stupid enough to actually waste what little money she has on a million dollar lawsuit. After meeting with her today I am convinced she may very well be…”
41. From 2008 to 2012 LYNN was an investigative journalist who specialized in white collar crime, mostly lapses in judicial systems integrity. The pressures associated with her profession caused LYNN to take a low level of Xanax, an anti-anxiety medication about twice per month. LYNN was also voluntarily hospitalized for what might be called “a nervous breakdown”. LYNN’S psychiatrist who was the doctor on call when she checked into Scripps diagnosed LYNN as anxious and depressed, but not paranoid. Lynn had seen a Kaiser psychiatrist for the same issues, before changing medical insurance, and he had the same diagnosis for her.
42. After the nervous breakdown, LYNN quit writing as often and was not actively investigating crime. She was not seeing the psychiatrist for many months before the sale of THE PROPERTY, and had not taken any Xanax during those months. She was grateful for peace and rest. The DEFENDANTS, by their actions, broke both LYNN and PIETRCZAK’S “glass heads”.
43. Plaintiffs are informed and believe and thereon allege that the said purchase and sale was conducted as a “short sale” through Comerica Bank which held a note secured by first deed of trust on THE PROPERTY at the time of the events complained of herein. Comerica Bank approved the short sale without requiring JORDAN to follow their usual procedure. The short sale was not fraudulent as against Comerica Bank, as they were or should have been aware of the facts. It was fraudulent as against the FDIC.
44. More evidence that THE PROPERTY was sold to KAHIA as a fraudulent short sale, with the knowledge and encouragement of the brokers is the following email chain between EARLEY and escrow officer Alicia Ramirez:
J.E.: Someone explain this to me please. I dont (sic) do short sales but in literally hundreds of commercial transactions over the past 10 years I have never heard of a deposit not transferring.
A.R.: Short sale lenders never approve the security deposits to be transfered, (sic) it’s a shortsale and they want as much of the proceeds as possible. It can always be handled outside of escrow.
EARLEY was right. It was bizarre that security deposits were not transferred in escrow. Alicia Ramirez was a bit off on her response. The deposit money must be accounted for because short sale approval is based on the insolvency of the borrower/seller, in this case JORDAN.
45. LYNN, who wanted to spend more time with her young adult children, had just committed to leading a less stressful life, and to that end had quit actively investigating crimes, was thrown back into a stressful situation. When LYNN made her initial settlement offer to EARLEY, he chased her out of his office yelling profanities at her.
46. Plaintiff PIETRCZAK was barely able to continue working. On May 27, 2013, Plaintiff PIETRCZAK was suicidal, because he had worked so hard to build a business from nothing, had employed the “unemployable”, had improved the appearance of the property and had advertised to get people to know the store existed, because visibility from the street is so bad, and EARLEY and KAHIA tried to steal his dreams and hard work so they could have more money.
47. LYNN called 911 for assistance and the tape of that call may be entered into evidence as proof that, even during a stressful moment, LYNN represented that PIETRCZAK was alcohol free for five years, except that day at the end of December, that PIETRCZAK is, other than when drinking alcohol, the nicest man in the world, always soft spoken, loving and a Godly man, and that PIETRCZAK was depressed over the evil the DEFENDANTS were doing to him. (During discovery, LYNN found out PIETRCZAK had an alcohol incident in 2008, so it was between four and five years sober.)
48. PIETRCZAK was brought to County Mental Health for a WIC §5157 hold and was prescribed heavy doses of anti-depressants and sleep enhancers.
49. EARLEY and the other tenant on the property, Cannatella called the police on May 28, 2013 and tried to file a false police report claiming PIETRCZAK had drove a vehicle into a fence on THE PROPERTY numerous times, knocking it over. No report was taken, as the police had been on the scene the night before and seen that PIETRCZAK was on foot and the fence falling over was not vandalism, but a result of a connection rusting out. EARLEY and Cannatella give different renditions of that evening every time they testify under oath.
50. Plaintiff LYNN sought psychiatric help and was prescribed Xanax for anxiety, Zoloft as an anti-depressant and Restoril to help her sleep. The Zoloft and Restoril had harsh negative side effects on LYNN’s physical health. Plaintiff LYNN had to spend all her time for months to try to fend off the eviction. Plaintiff PIETRCZAK had to hire an attorney for a $7,500 retainer fee to represent him in the unlawful detainer action, and has now paid the attorney $2,000 more.
51. If the property was sold to the Plaintiffs in December 2012, the plaintiff’s monthly net payment would have dropped about $6,000, meaning it is likely they could have obtained private financing, and The Estate Sale would definitely be profitable. As it is, the legal fees and costs along with the $4,000 stipulated payment from the plaintiffs to the defendant KAHIA during the pendency of this action, and the decrease in PLAINTIFFS’ ability to work is a threat to the plaintiffs’ ability to continue running their business. To top it off, EARLEY and KAHIA embarked on a course of conduct meant to interfere with The Estate Sale and plaintiffs’ personal lives.
52. In one email from EARLEY to some of the defendants, he wrote that he was going to call LYNN’S mother and sister and “mess up Laura’s little world.” It appears he did.
53. On January 24, Ted M. Smith, APC., sent a “collections” letter to the plaintiffs on behalf of defendant KAHIA. It was postmarked January 24, but dated January 15. It gave 30 days from the date of the letter (January 15, 2013) to respond in writing if the plaintiffs denied the debt. This was a violation of the statute concerning debt collection. He violated their privacy rights by enclosing their letters under the same cover, even though they are not legally married. He wrote “The information in this letter applies ONLY to your dealings with Ted M. Smith, APC as a debt collector, NOT as the creditor’s attorney in the eviction lawsuit.” (Capitalization and underscoring his.) This tactic caused further emotional distress to the plaintiffs. The plaintiffs were certain they had no obligation to pay any money to VICKI KAHIA, yet this bill collector was threatening to damage the plaintiffs’ credit. This particular form of collection letter is used exclusively for consumer debt, not for collection under the unlawful detainer laws, and certainly not for a commercial property.
54. During the interim from December 31, 2012 until the conclusion of this suit, the defendants lost the income from the two other tenants on the property, which according to a rent roll published on CAPITAL REAL ESTATE VENTURES, INC. website is $6,141.68 per month, paid $4,000 per month interim payment to KAHIA, starting on March 26, 2013, instead of a mortgage payment of approximately $3,600, and could not continue to improve the property, for fear of losing their entire investment.
55. In June 2014, despite the stipulated agreement in the UD case, KAHIA and EARLEY planned to have a used car lot open on THE PROPERTY. Cannatella took out a fictitious business name license. Cannatella has no known experience in auto sales, but JORDAN has sold vehicles for many years.
56. On August 9, 2014 LYNN’S son made and mailed the $4,000 check to KAHIA c/o JUDD, Inc. He inadvertently spelled “Vicki” “Vicky”. The envelope was sent certified with tracking. It was returned on August 16, as no one by that name at that address. LYNN wrote two emails to EARLEY and KAHIA’s attorney in this case, explaining that she made a new check with the name spelled properly. There was no response from EARLEY nor the attorney.
57. On August 25, KAHIA through her UD attorney scheduled an ex parte motion for a writ of possession based on late payment of the August check. Though ex parte relief was denied, the Court set an evidentiary hearing for October 17 with a trial to come 10 days later.
58. LYNN has reason to believe the judge presiding on the UD case is biased against her because the judge has a close working relationship with a judge also active on the California Judges’ Association who was admonished by the California Supreme Court for an appearance of bias while presiding on LYNN’s family law matter, and three judges who recused themselves pursuant to CCP 170.1(a)(6) from cases where LYNN was a party.
59. On September 18, with EARLEY as a witness, Cannatella was able to get a restraining order to issue against LYNN and PIETRCZAK. He showed tapes of Pietrczak drunk and both Cannatella and EARLEY told several flat out lies. The order is on appeal, not for abuse of discretion, but because the Court overstepped its jurisdiction and ordered LYNN and PIETRCZAK not to use the front display area or tow any vehicle owned by Cannatella. This means PB Auto Group will have the entire parking lot and display area. Even knowing that Jordan breached his contract, as decided in arbitration, EARLEY and KAHIA are continuing to put plaintiffs out of business.
60. EARLEY on behalf of KAHIA took several actions to try to close down The Estate Sale. Most importantly, EARLEY denies that Plaintiffs have exclusive use of a front area of the property that they were using for a display. There is a written agreement from JORDAN giving Plaintiffs exclusive use of this area. EARLEY convinced San Diego Police Department officers that the area was to be shared with Cannatella. Cannatella parked his BMW or van in the display area, even though there was plenty of parking elsewhere. The SDPD refused to cite the other tenant for trespass based on Penal Code 602(k). They said EARLEY told them this area was communal. The lack of street exposer destroyed any hope of running The Estate Sale from THE PROPERTY. Finally, on September 5, 2014 SDPD changed its stance and told plaintiffs they could tow Cannatella from their spot, but the restraining order process was already started. Plaintiffs used the front display area from September 6 to September 18, and were able to do several times the sales volume as in the preceding year.
61. As of March 31, 2013, the buyer’s broker in the JORDAN-KAHIA TRANSACTION, CREV, listed THE PROPERTY for sale and is advertising it on the CAPITAL REAL ESTATE VENTURES, INC. website, capital-rev.com for an asking price of $1,695,000 with a 7.97% capitalization rate. This is a significant increase over the price paid by defendant KAHIA, almost double in three months.
62. LYNN would probably have gotten cash from her trust to purchase the property in December 2012. Unfortunately, in April 2013 her relationship with her mother soured to the point of a reconciliation being unlikely. One reason LYNN heard from her baby sister for her mother’s contempt for her was that LYNN was not paying her rent.
63. As of this date, 21 months after the purchase, KAHIA has not filed suit against CREV.
64. KAHIA’s attorney wrote a letter to her, which she gave to EARLEY, who gave it to The City of San Diego, thereby waiving KAHIA’s right to attorney-client privilege. KAHIA’s attorney told KAHIA that EARLEY was not managing the property properly. KAHIA did not follow her attorney’s advice to replace EARLEY with another manager.
FIRST CAUSE OF ACTION AGAINST DEFENDANTS VICKI KAHIA, VICKI KAHIA AS TRUSTEE OF THE VICKI KAHIA TRUST, JUSTIN EARLEY, CAPITAL REAL ESTATE VENTURES, INC., RANDY RIVERA, ROCK SOLID REAL ESTATE CORP., PETER MICHEAL ROCCA and ANTHONY CARNEVALE FOR TORTIOUS INTERFERENCE WITH CONTRACT (ALSO CALLED INDUCING BREACH OF CONTRACT)
65. Plaintiffs hereby repeat and reallege paragraphs 1 through 64 of their General Allegations as though fully set forth at this place.
66. Plaintiffs are informed and believe and thereon allege that the defendants VICKI KAHIA, VICKI KAHIA AS TRUSTEE OF THE VICKI KAHIA TRUST, JUSTIN EARLEY, CAPITAL REAL ESTATE VENTURES, INC., RANDY RIVERA, ROCK SOLID REAL ESTATE CORP., PETER MICHEAL ROCCA and ANTHONY CARNEVALE combined and conspired to deprive them of their right under the lease to purchase THE PROPERTY and knowledgeably and willfully induced Defendant Jordan to breach said lease as herein alleged.
67. There was a valid existing contract between plaintiffs and a third party, the lease.
68. Defendants knew of the contract or legally are presumed to have known of the contract.
69. Defendants intended to induce the breach of contract for their own financial gain.
70. JORDAN did not give the plaintiffs right of first refusal to buy the property timely.
71. If defendants did not induce JORDAN to breach the contract, he would have no reason not to give plaintiffs their right of first refusal. JORDAN’s reason for not giving the ROFR is that he “forgot”. But in the same arbitration he said he talked to the plaintiffs every month about whether they wanted to buy the property. So, he expects a jury to believe he talked about a potential sale every month for a year without mentioning there was an accepted offer from Bral or KAHIA.
72. Because of the breach, the plaintiffs have lost the ability to purchase the property, thereby losing the difference between rental payments and mortgage payments less income from the other tenant and a billboard rental. They were also denied the right to evict Cannatella.
73. To the extent that the proof at trial shows that these acts of the Defendants and each of them were intentional, then these aforesaid acts of said Defendants and each of them were malicious in that they were designed to cause injury to the Plaintiffs, malicious in that they were carried on with a willful and conscious disregard for the rights of the Plaintiffs, oppressive and despicable in that they subjected Plaintiffs to cruel and unjust hardship in conscious disregard of Plaintiffs’ rights, despicable in that said acts were so vile, base, contemptible, miserable, wretched and loathsome that they would be looked down upon and despised by ordinary decent people, and patently fraudulent, and thus entitle Plaintiffs to equitable relief of the formation of a constructive trust on THE PROPERTY with the plaintiffs as beneficiaries to punish the Defendants and each of them and make them examples in the public eye and thus discourage future conduct by Defendants and others similarly inclined to act as herein alleged.
SECOND CAUSE OF ACTION AGAINST DEFENDANT JAMES JORDAN FOR
BREACH OF CONTRACT
74. Plaintiffs hereby repeat and reallege and incorporate by reference all paragraphs 1 through 73 above, as though fully set forth in this cause of action.
75. Plaintiffs are informed and believe and thereon allege that Defendant James Jordan failed to offer the Plaintiffs their right to first refusal to purchase the property at the same price and terms as the third party buyer, VICKI KAHIA, in violation of article 13 and 14 of the lease contract.
76. Plaintiffs allege that they performed all conditions precedent in the contract.
77. Plaintiffs suffered damages legally (proximately) caused by Defendant Jordan’s breach of contract, where if performed timely, the Plaintiffs had a source of private financing, but that financing no longer being available, the Plaintiffs could not now purchase the property, without award of damages and collection of said damages from the other causes of action or an extended period of time to execute a partition and sale of LYNN’S Los Angeles commercial properties.
THIRD CAUSE OF ACTION AGAINST DEFENDANTS VICKI KAHIA , JUSTIN EARLEY and JUDD, Inc. FOR BREACH OF IMPLIED WARRANTY
78. Plaintiffs hereby repeat and reallege and incorporate by reference paragraphs 1 through 77 above, as though fully set forth in this cause of action.
79. This cause of action is directed at defendants VICKI KAHIA, JUSTIN EARLEY and JUDD, Inc.
80. In the related UD action, 37-2013-00031232-CL-CU-CTL KAHIA stipulated to allowing Plaintiffs to remain in possession of the premises at 2946 Garnet Avenue in exchange for paying an interim payment of $4,000 per month to be credited or debited at the conclusion of the case.
81. EARLEY, JUDD, Inc and KAHIA then acted in bad faith, taking plaintiffs’ only street visible space from them.
82. Plaintiffs have been damaged by these acts and seek both general and special damages according to proof at time of trial.
FOURTH CAUSE OF ACTION AGAINST DEFENDANTS VICKI KAHIA and JUSTIN EARLEY FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
83. Plaintiffs hereby repeat and reallege and incorporate by reference all paragraphs 1 through 82 above, as though fully set forth in this cause of action.
84. This cause of action is alleged against defendants VICKI KAHIA and JUSTIN EARLEY.
85. Defendants’ conduct was intentional and outrageous. As part of a scheme to defraud the government in a fraudulent short-sale, they disregarded the plaintiffs’ rights. Instead of showing remorse when caught, they added to the damages by intentionally interfering with plaintiffs’ business, making defamatory comments about the plaintiffs in print and verbally, threatening the plaintiffs with eviction from a property plaintiffs rightly owned and would be paying much less than rent for, even after stipulating to an interim compromise during this litigation. These defendants’ conduct was outrageous, exceeding that of a business tort, because they made it personal, calling the plaintiff’s family, making derogatory comments to LYNN’s son, and attempting to have Pietrczak arrested by filing a false police report. KAHIA and EARLEY encouraged and supported Cannatella in his trespass on the front display area.
86. Defendants could be substantially certain that their conduct would result in an injury to the plaintiffs. In fact, EARLEY made several written comments about plaintiffs’ weak mental health.
87. The defendants’ conduct was directed at the individual plaintiffs.
88. The emotional distress suffered by the plaintiffs was severe, including hospitalization to each.
89. The defendant’s conduct was the proximate cause of the plaintiffs’ emotional distress. Both plaintiffs were well along recovery in December 2012. It is now touch and go.
FIFTH CAUSE OF ACTION FOR CONVERSION
90. Plaintiffs hereby repeat and reallege and incorporate by reference all paragraphs 1 through 89 above, as though fully set forth in this cause of action.
91. This cause of action is alleged as to DEFENDANT JORDAN and VICKI KAHIA.
92. DEFENDANT JORDAN and VICKI KAHIA did not transfer the security deposit in escrow and did not return it to the plaintiffs. The plaintiffs had a clear right to the return of their deposit. The plaintiffs are damaged by the amount of the deposit, $6,000, plus are entitled to statutory punitive damages of $200.
SIXTH CAUSE OF ACTION FOR NEGLIGENT INTERFERENCE WITH PROSPECTIVE ECONOMIC RELATIONS
93. Plaintiffs hereby repeat and reallege paragraphs 1 through 92 of their General Allegations as though fully set forth at this place.
94. Plaintiffs are informed and believe and thereon allege that, if interference with contract was not intentional by them, then the defendants CAPITAL REAL ESTATE VENTURES, INC., RANDY RIVERA, ROCK SOLID REAL ESTATE CORP. and PETER MICHEAL ROCCA negligently interfered with a relationship between plaintiffs and JORDAN that probably would have resulted in an economic benefit to plantiffs.
95. That LYNN and PIETRCZAK were in an economic relationship, a lease with a ROFR clause that probably would have resulted in a future economic benefit to plantiffs, in that their payment for their commercial space would fall to $1,000 per month from about $7,000 per month, they would own the property after paying the mortgage off and they would not need to renegotiate the lease after 10 years. The property has huge upside potential because of its location kitty-corner to where a trolley station is funded to be built. Performance of the ROFR by Jordan would also have allowed LYNN and PIETRCZAK to evict Cannatella, and therefore not had to endure Cannatella’s trespass on their land.
96. That CAPITAL REAL ESTATE VENTURES, INC., RANDY RIVERA, ROCK SOLID REAL ESTATE CORP., and PETER MICHEAL ROCCA knew or should have known of this relationship;
97. That CAPITAL REAL ESTATE VENTURES, INC., RANDY RIVERA, ROCK SOLID REAL ESTATE CORP., and PETER MICHEAL ROCCA knew or should have known that this relationship would be disrupted if they failed to act with reasonable care;
98. That CAPITAL REAL ESTATE VENTURES, INC., RANDY RIVERA, ROCK SOLID REAL ESTATE CORP., and PETER MICHEAL ROCCA failed to act with reasonable care;
99. That CAPITAL REAL ESTATE VENTURES, INC., RANDY RIVERA, ROCK SOLID REAL ESTATE CORP., and PETER MICHEAL ROCCA engaged in wrongful conduct by not practicing their duties as real estate brokers with due diligence. If they actually did not read the leases and inform the buyer of the ROFR clause, than they were negligent in supervising their agents and associated broker.
100.. That the relationship was disrupted, by breach of the ROFR clause in the lease;
101. That LAURA LYNN and MICHEAL A. PIETRCZAK were harmed; and
102. That CAPITAL REAL ESTATE VENTURES, INC., RANDY RIVERA, ROCK SOLID REAL ESTATE CORP., and PETER MICHEAL ROCCA’s wrongful conduct was a substantial factor in causing LAURA LYNN and MICHEAL A. PIETRCZAK’s harm.
PRAYER FOR RELIEF
The Plaintiffs pray for declaratory and injunctive relief on each cause as follows:
103. On the first cause of action, plaintiffs seek recognition of a constructive trust on THE PROPERTY, pursuant to 54 Am Jur., Trust sect 218 et seq, Civil Code 3294 and the equitable theory of unjust enrichment. VICKI KAHIA shall be the trustee and LAURA LYNN and MICHEAL PIETRCZAK the beneficiaries. Transfer of the property to the beneficiaries shall be performed as soon as practical after the action is decided. As an alternative, money damages of $1,200,000, the value of the property plus loss of investment to drive customers to this property and reimbursement of $4,000 per month paid to KAHIA from March 29, 2013.
104. The second cause of action was decided in arbitration and an award of $171,000 in favor of the plaintiffs determined. A petition to confirm the award is already filed.
105. On the third cause of action plaintiffs seek an amount to be determined at trial to punish KAHIA and EARLEY for acting in bad faith and discourage them from similar conduct in the future.
106. On the fourth cause of action, the plaintiffs seek medical expenses, $100,000 for pain and suffering, and punitive damages in an amount sufficient to punish KAHIA and EARLEYand make them examples in the public eye and thus discourage future conduct by Defendants and others similarly inclined to act as herein alleged from each and every of the defendants jointly and severally.
107. On the fifth cause of action the plaintiffs seek $6,200 from defendant KAHIA.
108. On the sixth cause of action the plaintiffs seek $171,000 for difference between mortgage and rental payments, $4,000 per month reimbursement of money paid to KAHIA in what the Court in the UD case called “you gotta pay to play” and $100,000 for incidental damages such as loss of business.
109. By pre-trial motion, that a receiver be appointed to THE PROPERTY pending the outcome of the action.
110. That Plaintiffs recover their costs of suit, including costs of investigation.
111. For such other and further relief that the Court deems, just, proper, and equitable.
DATED: September 27, 2014
LAURA LYNN MICHEAL A. PIETRCZAK
I, the undersigned, am a Plaintiff in this action. I have read the foregoing Complaint and know the contents thereof. It is true and of my personal knowledge except as to any matters that may be alleged on information and belief and as to those matters I believe them to be true.
This verification is made under penalty of perjury of the laws of the State of California at San Diego, California on September 27, 2014
LAURA LYNN _________________________________________________
MICHEAL A. PIETRCZAK _______________________________________