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2946 Garnet Avenue
San Diego, CA 92109
Plaintiff, In Pro Per
Micheal A. Pietrczak
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, JUSTIN CANNATELLA as an individual; JUSTIN CANNATELLA dba PACIFIC BEACH SPORTS; PB SPORTS INC.; JUSTIN CANNATELLA dba PB AUTO GROUP, GARRY HOGENBIRK; MICHAEL CLEMENS, THE CITY OF SAN DIEGO and DOES 7 through 50, inclusive;
Defendants. ) )
) CASE NO.: 37-2013-00041919-CU-BT-CTL
PROPOSED THIRD AMENDED AND SUPPLEMENTED 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, TRESPASS, FRAUD, WASTE, NEGLIGENCE INCLUDING NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS, INVASION OF PRIVACY 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, JUSTIN CANNATELLA as an individual, JUSTIN CANNATELLA dba PACIFIC BEACH SPORTS, PB SPORTS INC., JUSTIN CANNATELLA dba PB AUTO GROUP, GARRY HOGENBIRK, MICHAEL CLEMENS and DOES 6 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 corporation licensed to do business in the State of California, VICKI KAHIA AS TRUSTEE OF THE VICKI KAHIA TRUST, a trust, PACIFIC BEACH SPORTS, a sole proprietorship that is an alter ego of JUSTIN CANNATELLA, PB AUTO GROUP, a sole proprietorship that is an alter ego of JUSTIN CANNATELLA, PB SPORTS INC., a Nevada Corporation duly licensed to do business in the State of California and THE CITY OF SAN DIEGO, a municipality.
b. The true names of defendants sued as Does are unknown to plaintiffs.
4. Plaintiffs have complied with claim statutes under California Government Code 900 et. Seq. as they pertain to THE CITY OF SAN DIEGO.
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 1.2 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 KAHIA TRUST”), as an alter ego. KAHIA is the trustee. KAHIA’s testimony and documentation shows she used her personal residence to obtain a line of credit, then transferred title of her personal residence to THE KAHIA TRUST with no lien against THE KAHIA TRUST, then used the line of credit along with other cash to purchase THE PROPERTY.
14. JUSTIN CANNATELLA (“CANNATELLA”) is the owner and operator of PB Sports and rents 2950 Garnet Avenue, the second building on THE PROPERTY. He is the president, secretary and treasurer of PB SPORTS INC. , a Nevada Corporation. He filed a fictitious business license to do business as PB AUTO GROUP in June 2014 and Malibu Green Juice Company in 2014, both from 2950 Garnet Avenue.
15. GARRY HOGENBIRK and MICHAEL CLEMENS stated to plaintiffs that they bought CANNATELLA’S inventory in early October 2014. They are shown on an interview online made October 3, 2014 saying they run a business called All Adventure Sports, but have not taken a fictitious business name license. JUSTIN EARLEY claims not to know who HOGENBIRK or CLEMENS are, but CLEMENS and HOGENBIRK are living at 2950 Garnet Avenue. There was an advertisement online to sell PB SPORTS by JUSTIN CANNATELLA that said there are living quarters in 2950 Garnet Avenue. Plaintiffs are uncertain at this writing as to the exact relationship between these plaintiffs and the others. We are certain they are involved in the conspiracy to be described, and that they have trespassed and stolen our personal property, which we recovered with the help of the SDPD, and they have intentionally caused severe emotional distress. They also painted the interior of 2950 Garnet and covered “PB Sports” on one side of the building.
16. THE CITY OF SAN DIEGO (“THE CITY”) is a municipality that has many departments. Both the Neighborhood Code Enforcement and the San Diego Police Department’s negligence contributed to the damages incurred by plaintiffs. Plaintiffs each filed a claim under Government Code 900 et. Seq. on or about September 2, 2014. Some of the most egregious acts by THE CITY occurred longer than six months before the claim was filed. Those acts are mentioned as evidence of knowledge, intent and course of conduct that contributed to plaintiffs finally giving up on mitigating damages and closing their business to the public. Some of the most egregious acts took place on September 5 and September 18, 2014. Plaintiffs were in contact with risk management, Charles Hopper, during this time and denial of their claim came after the 18th, so no supplemented claim was filed. Plaintiffs intend to file a supplemented claim while waiting for the hearing to get leave to amend and supplement this complaint, but as THE CITY continues in its course of conduct, plaintiffs need to pick a time within the statute of limitations to file, so they are including THE CITY now.
17. The true names and capacities of Defendants sued herein as Does 6 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.
18. 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, CANNATELLA, PB SPORTS INC., PB AUTO GROUP, PB SPORTS and JORDAN who were principles, and THE CITY, who was supposed to provide equal protection under the law.
19. The defendants exclusive of JORDAN and THE CITY 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. When plaintiffs pursued their right to purchase the property, the conspirators contacted YNN’S family to “mess up Laura’s little world” as EARLEY wrote in an email to several of the conspirators. Conspirators stole plaintiffs computer, camera and cell phone, destroying data and intruding on plaintiffs’ privacy. Conspirators stole power from the plaintiffs service panel and after convincing THE CITY it was a mistake, refused to reimburse plaintiffs. Conspirators assaulted plaintiffs, goaded them, trespassed on their parcel, and perjured themselves in court and obstructed justice by lying to the SDPD, all to cause financial hardship on the plaintiffs so plaintiffs would not be able to pursue their rights in court. Conspirators used PIETRCZAKS loss of sobriety against him, kind of like the kid who killed his parents then begged for mercy from the court, because he was an orphan.
20. 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.. The 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 until documents were subpoenaed from Cal-Title.
21. 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.
22. 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.
23. PLAINTIFFS allege that KAHIA, THE KAHIA TRUST, and the broker and salesman defendants 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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, and spoliation of evidence. There is also “or assignee” written on the buyer line of the purchase agreement in the JORDAN-KAHIA transaction.
29. 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.
30. 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.
31. “Possession of land is notice to the world of every right that the possessor has therein, legal or equitable; it is a fact putting all persons on inquiry as to the nature of the occupant’s claims.’ [Citation.] ‘Except in so far as the rule has been varied by statute, actual possession of land is such notice to all the world, or to anyone having knowledge of such possession, as will put on inquiry those acquiring title or a lien on the land to ascertain the nature of the right that the occupant has in the premises. The presumption is that inquiry of the possessor will disclose how and under what right he holds possession, and, in the absence of such inquiry, the presumption is that, had such inquiry been made, the right, title, or interest under which the possessor held would have been discovered.
32. “The notice which the law presumes has been held to be actual, and not merely constructive, notice. Possession is notice not only of whatever title the occupant has but also of whatever right he may have in the property, and the knowledge chargeable to a person after he is put on inquiry by possession of land is not limited to such knowledge as would be gained by examination of the public records.’” In J.R. Garrett Co. v. States 3 Cal.2d 379 [44 P.2d 538] (1935):
Ignorance of plaintiffs’ ROFR in their lease and any other rights that would be disclosed through tenant estoppels is not a valid legal defense to interfering with the contract, and feigning ignorance just makes defendants look more malicious and conniving.
33. 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.
34. 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. There were several people asking inappropriate questions of plaintiffs, and since Lynn had been in a terrible divorce with her former spouse trying to take her future inheritance, this questioning made plaintiffs uneasy.
35. 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. The business was producing just enough to break even with generous reinvestment of the gross receipts.
36. 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.
37. 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.
38. 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.
39. 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.
40. 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.
41. 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.
42. 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 the buyers were well aware of the ROFR all along and were going to play hardball. Later actions, to be described, added to the inference of intent. “…it is well settled that the intention with which a party did an act may be inferred from evidence of his subsequent conduct.” Longway v Newbery, 13 Cal. 2d 603, 611-612 [91 P.2d 110]; Holiday v. Tolosano, 39 Cal. App. 15
43. 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.”
44. 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…”
EARLEY’S comments were hypocritical, also, considering EARLEY filed for bankruptcy in 2012, making the comments more despicable.
45. From 2008 to 2012 LYNN was an investigative journalist who specialized in white collar crime, mostly lapses in judicial systems integrity. LYNN is a champion of our legal system and while many complain about bias and faulty records, LYNN was able to prove bias as per an order of The Supreme Court of California. A trial court agreed with LYNN that a case file was missing and a Judicial Council attorney agreed that back dating was an issue. Unfortunatley, many judges and administrators want to shoot the messanger, adding pressure to LYNN’S otherwise mundane , “church lady” life. 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”. 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.
46. 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, hit both plaintiffs deep in their souls.
47. 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.
48. 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.
49. 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.
50. 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.
51. 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.)
52. PIETRCZAK was brought to County Mental Health for a WIC §5157 hold and was prescribed heavy doses of anti-depressants and sleep enhancers.
53. EARLEY and 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.
54. 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.
55. 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. It is highly possible the Kramer Family Trust would have gifted the property to LYNN and her sister, 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, the conspirators embarked on a course of conduct meant to interfere with The Estate Sale and plaintiffs’ personal lives and business.
56. 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.
57. 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.
58. 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.
59. In December 2013, CANNATELLA began parking his personal vehicles in a front area that plaintiffs had used for display. JORDAN signed a letter in August 2011 memorializing an agreement to let The Estate Sale have exclusive use of the display area. The stipulated agreement and order in The UD case gave plaintiffs exclusive possession of 2946 Garnet Avenue, which encompasses the front display area. But whenever plaintiffs tried to tow CANNATELLA’S vehicles or have the SDPD cite him for criminal trespass as per PC 602(k), EARLEY and KAHIA would tell the tow companies and SDPD that they gave CANNATELLA permission to use the front area.
60. Even though plaintiffs showed SDPD officers up through lieutenant the order of March 27, 2013, the letter from JORDAN of August 2011 and the title policy plan of the two separate parcels, and there was an existing order made on behalf of the CITY against JORDAN and his successors that referred to 2950 Garnet as a parcel with a building on it, SDPD told plaintiffs to let CANNATELLA park in the display area, basically granting an easement without using the process of eminent domain. In August 2014, officers made such statements to plaintiffs, taped and used by CANNATELLA to obtain a restraining order, that plaintiffs were not reasonable to deny use of 2946 Garnet to CANNATELLA.
61. Also, in October of 2013, EARLEY, KAHIA’S attorneys and CANNATELLA communicated with The City of San Diego Neighborhood Code Enforcement and convinced them to not issue any citations to KAHIA until the litigation was over and to issue a citation against plaintiffs for their display and other alleged infractions that were going on when KAHIA was in escrow. She had no complaints during escrow, except the informal suggestion from EARLEY to move an electrical conduit. The City did issue a $1,000 fine and citation to plaintiffs. Plaintiffs appealed. The citation was dropped. But EARLEY, KAHIA and CANNATELLA continue to bring the citation up in related cases and this case, leaving out the fact that the citation was at their request and was not valid or enforced.
62. THE CITY OF SAN DIEGO gave final approval on work done by CANNATELLA after the KAHIA sale. THE CITY approved opening two large roll up doors on the west side of 2950 Garnet’s building. The building already encroaches on 2946 Garnet and the doors make it look to SDPD that CANNATELLA should be able to use 2946 Garnet’s parking lot. Had Plaintiffs been given their ROFR and bought the property, the openings would not be a problem, but with CANNATELLA on the property, and especially with a restraining order protecting CANNATELLA from plaintiffs, the doors make for an uncomfortable atmosphere.
63. The conspirators converted property, including a computer, a camera and a telephone from plaintiffs. Each time a report was made to SDPD, but SDPD said there was not enough evidence to get a criminal conviction. Over 250of LYNN’S blog posts were deleted from a site that was open at the time f the theft. Evidence of CANNATELLA hitting LYNN was destroyed from the camera. And the conspirators were able to read all LYNN’S texts to and from PIETRCZAK when they were getting “divorced”. The conspirators also were able to read texts between LYNN and her sons, her best friends and attorneys. This intrusion into plaintiffs privacy would be offensive to any reasonable person, and leaves plaintiffs mortified and feeling violated every time they see or think about the conspirators. The 250 deleted articles will take a year of LYNN’S valuable time to recreate.
64. 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. It is more likely than not that JORDAN would be the true owner of the car lot and this would be his payment for breaching his agreement with plaintiffs.
65. In August 2014, CANNATELLA renewed his efforts to harass plaintiffs. On August 29, 2014, SDPD received 11 calls to come to THE PROPERTY. Nine of the calls were made by CANNATELLA or EARLEY. CANNATELLA closed the front gate and locked it a few times, locking plaintiffs in and their customers out. Finally plaintiffs told CANNATELLA they were not willing to share their driveway with him any longer, because he was not acting in good faith. Plaintiffs blocked the driveway with their truck and car. CANNATELLA and his customers still had access through a gate on 2950 Garnet, but that is a more difficult entry, even than 2946 Garnet. CANNATELLA was able to convince SDPD that plaintiffs should not be able to block the driveway, to keep it open for fire trucks, but that plaintiffs could tow CANNATELLA off 2946 Garnet.
66. On September 2, 2014 plaintiffs obtained a temporary restraining order against CANNATELLA.
67. 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.
68. 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.
69. LYNN has reason to believe the judge presiding on the UD case is biased against her. 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. The judge presiding on the UD said she “trusts” EARLEY, even after seeing evidence that EARLEY refused a tendered payment, then claimed the payment was late. The Judge also knows LYNN and PIETRCZAK won at the breach of contract arbitration. KAHIA and the other defendants seem to think they will win at the UD hearing, as a rumor was started by them that LYNN and PIETRCZAK were being evicted on October 17. Perhaps this was wishful thinking on their part, but it did sound like the judge presiding on the UD was advocating for KAHIA. LYNN asked for a UD trial to move forward in January 2014 and the same judge set her hearing out six months. When KAHIA asked for a change in the interim order, the judge set the hearing out one month. While a lack of judicial integrity will not add to damages, plaintiffs think it is important to explain why they did not bring the UD back to trial at the six month out date. LYNN was using caution because there was not enough hard evidence to obtain a CCP 170.1 disqualification of the UD judge.
70. On September 5, 2014 CANNATELLA was cited but not arrested for violating the temporary restraining order against him. He closed and locked one side of the gate to 2946 Garnet. He was trying to fix the second end with a large chain. PIETRCZAK stopped him, by removing the fittings. CANNATELLA was outside the fence, PIETRCZAK was inside. Plaintiffs showed SDPD video of CANNATELLA holding the heavy chain outside the fence, and PLAINTIFFS very upset, trying to get the police to help and moving their truck to be able to remove the gate. They showed SDPD injuries to both plaintiffs’ hands from getting cut on the fence.
71. On the night of September 5, CANNATELLA was still parked in 2946 Garnet’s lot. The tow company LYNN contacted would not come out to tow CANNATELLA because KAHIA and EARLEY had convinced them that CANNATELLA could use both lots. Plaintiffs kept an eye on the front area, but never saw car lights come on; CANNATELLA must have moved his car without turning on the lights. When he left, the PLAINTIFFS’ hide a key to their car was missing, the door was unlocked and left ajar and there was super glue in the ignition, which cost $250 to repair and aggravation. That was the last night PLAINTIFFS noticed CANNATELLA sleeping at the building overnight. He was mostly gone from the property.
72. On September 18, 2014, CANNATELLA was able to convince The Court to dissolve the temp order against him, and issue a restraining order against plaintiffs, restricting their use of the parking lot and from blocking the parking lot on 2946 and 2950 Garnet. The order is under appeal. In the meantime, even if plaintiffs prevail in this action, they may be considered in violation of a restraining order if they put out a display in the front, as “blocking the parking lot”. Had the PROPERTY been sold to the plaintiffs timely, CANNATELLA, who was on month to month lease, would have been evicted long ago. Had the SDPD taken appropriate action for the violation of a temporary restraining order or testified at the September 18 hearing without making plaintiffs pay witness fees and serve a subpoena, as plaintiffs requested of the government claim adjuster, Charles Hopper, the restraining order hearing would have gone very differently. Plaintiffs did not have enough money to pay the witness fee.
73. In October 2014, a group of about six people started living in 2950 Garnet and the parking lot. Two of the new residents are GARRY HOGENBIRK and MICHAEL CLEMENS. Though the defendants are telling different versions of HOGENBIRK and CLEMENS’ participation, it is obvious they are involved with CANNATELLA. They claim the restraining order protecting CANNATELLA protects them also. They park a dune buggy that says “PREDATOR” on the front windshield in the display area or in the middle of the driveway on 2946 Garnet. They took plaintiffs’ trash bin and filled it with their own trash. When plaintiffs asked them to return the bin, they said it was theirs and HOGENBIRK yelled threats to put PIETRCZAK “to sleep”. When SDPD arrived, HOGENBIRK and CLEMENS emptied the bin and rolled it back to its slab next to 2946 Garnet, where they had taken it from. Still SDPD did not file charges for the alleged theft. They said CLEMENS claimed it was a mistake.
74. Plaintiffs filed a claim against THE CITY OF SAN DIEGO in early September 2014 as per Government Code 900 and sequence. The claim was denied. Evidence shows that THE CITY OF SAN DIEGO knew about the plaintiffs’ emotional distress and had picked PIETRCZAK up on WIC 5150 et seq holds several times. One SDPD Officer told LYNN she was “crazy” in August 2014, when the officer was outside the locked fence, LYNN was inside, having a nervous breakdown, and CANNATELLA had left the property without giving LYNN a key to the lock. The refusal of SDPD to arrest CANNATELLA, HOGENBIRK and CLEMENS for trespass or false imprisonment, and KAHIA and EARLEY for conspiracy to trespass according to PC 602(k) caused plaintiffs’ emotional state to deteriorate even further. SDPD told plaintiffs to get a restraining order so SDPD could arrest CANNATELLA if he parked in plaintiffs’ space or locked them into the property. Plaintiffs got a temporary restraining order. Then on September 5, 2014, when CANNATELLA locked the plaintiffs into the property again, lied to the police and lied under penalty of perjury in writing to obtain a restraining order against the plaintiffs, SDPD still did not arrest CANNATELLA.
75. At early stages of discovery concerning HOGENBIRK and CLEMENS, plaintiffs found a suit filed against GARRY HOGENBIRK in which he agrees to sell an annuity judgment worth $925,000 for $250,000 cash. He told the court he planned to buy a business in Colorado and sue a bank with the money. That was on May 2, 2014. It appears to be the same GARRY HOGENBIRK, as the judgment was for being hit by a downed power line, and Mr. HOGENBIRK has a physical deformity that is consistent with grabbing onto a high voltage wire.
76.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.
77. 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. Mostly LYNN is just practicing having good boundaries with her mother and oldest sister, and that means socializing between LAURA and her oldest sister is not an option. Had LYNN known about the sale in early December 2012 or even at the Jordan-Bral transaction, she would have picked a more opportune time to tell her mother “No.”
78. As of this date, 21 months after the purchase, KAHIA has not filed a cross-complaint against any defendant.
79. KAHIA’s attorney wrote a letter to her, which she gave to EARLEY, who gave it to THE CITY, 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. THE CITY still chose to believe EARLEY’S claim to control 2946 Garnet in contradiction to the March 2013 order.
80. On October 18, 2014, in response to more complaints from LYNN about criminal trespass on the property, Earley’s attorney sent an email to EARLEY that said “I though u were gonna refrain”. The attorney inadvertently hit “reply all” instead of “send”. Because it appears the attorney is aware of ongoing, and future crimes or fraud, attorney client privilege to this issue is waived. It also shows that counsel is dragging out litigation that is meant to harass.
81. On October 22, 2014 PLAINTIFFS realized they could not draw people into the business any longer without the use of the front display area. They closed down The Estate Sale, losing their entire investment of time, $3,000 per month of investment income, reinvested receipts and the good will demonstrated by their positive Yelp reviews. Plaintiff LYNN gave properties to her young adult children in trust, so they will have income again, and then sold the property for cash (escrow pending). Because of the non-liquidity of the properties, the price was discounted about $20,000 of the 10 CAP rate price. Plaintiffs will now use LYNN’s other investment income to pay KAHIA until the UD is decided, and live on what little money they can generate using 2946 Garnet as a warehouse.
82. 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)
83. Plaintiffs hereby repeat and reallege paragraphs 1 through 81 of their General Allegations as though fully set forth at this place.
84. 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.
85. There was a valid existing contract between plaintiffs and a third party, the lease.
86. Defendants knew of the contract or legally are presumed to have known of the contract.
87. Defendants intended to induce the breach of contract for their own financial gain.
88. JORDAN did not give the plaintiffs right of first refusal to buy the property timely.
89. 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.
90. 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 and the ensuing loss of business and severe emotional distress.
91. 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.
92. SECOND CAUSE OF ACTION AGAINST DEFENDANT JAMES JORDAN FOR
BREACH OF CONTRACT
93. Plaintiffs hereby repeat and reallege and incorporate by reference all paragraphs 1 through 91 above, as though fully set forth in this cause of action.
94. 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.
95. Plaintiffs allege that they performed all conditions precedent in the contract.
96. 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.
97. THIRD CAUSE OF ACTION AGAINST DEFENDANTS VICKI KAHIA , THE VICKI KAHIA TRUST, JUSTIN EARLEY and JUDD, Inc. FOR BREACH OF IMPLIED WARRANTY
98. Plaintiffs hereby repeat and reallege and incorporate by reference paragraphs 1 through 96 above, as though fully set forth in this cause of action.
99. This cause of action is directed at defendants VICKI KAHIA, THE VICKI KAHIA TRUST, JUSTIN EARLEY and JUDD, Inc.
100. 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. A stipulated agreement and order was signed on March 27, 2013. This is a contract as well as a court order.
101. EARLEY, JUDD, Inc., THE VICKI KAHIA TRUST and KAHIA then acted in bad faith, taking plaintiffs’ only street visible display space from PLAINTIFFS. The front display area was used by PLAINTIFFS before the sale. There was a letter signed by JORDAN in August 2011 stating this area was for The Estate Sale. The area is part of the parcel that is 2946 Garnet. Allowing CANNATELLA to park his personal vehicle in the display area when there was plenty of parking elsewhere would obviously cause a hardship on The Estate Sale with no benefit to anyone else. Allowing CANNATELLA, HOGENBIRK and CLEMENS to reside on the property, staying up to all hours, drinking alcohol in the parking lot that is a commercial zone with no alcohol permit was an act of bad faith.
102. KAHIA and EARLEY then gave written permission to CANNATELLA to open an auto dealership on 2950 Garnet and told the court in the restraining order hearing that both parcels were to be used by both 2946 and 2950. DMV approval for the lot was based on two parking spots on 2946 Garnet having restricted parking signs posted. In McWilliams v. Holton, 248 Cal. App. 2d 447, 451, 56 Cal. Rptr. 574,577 (1967) decided a lessor breached covenant owed to new tenant by allowing existing tenant to remain in possession of leased premises. By giving CANNATELLA permission to have an auto dealership on the lot, Defendants were denying use specified for the Plaintiffs.
103. Plaintiffs have been damaged by these acts, ultimately closing our business and seek both general and special damages according to proof at time of trial.
FOURTH CAUSE OF ACTION AGAINST DEFENDANTS VICKI KAHIA, THE VICKI KAHIA TRUST, JUSTIN CANNATELLA, PACIFIC BEACH SPORTS, PB SPORTS INC., GARRY HOGENBIRK, MICHAEL CLEMAENS, JUDD, INC. and JUSTIN EARLEY FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
104. Plaintiffs hereby repeat and reallege and incorporate by reference all paragraphs 1 through 103 above, as though fully set forth in this cause of action.
105. This cause of action is alleged against defendants VICKI KAHIA, THE KAHIATRUST JUSTIN CANNATELLA, PACIFIC BEACH SPORTS, PB SPORTS INC., GARRY HOGENBIRK, MICHAEL CLEMENS, JUDD INC., and JUSTIN EARLEY.
106. Defendants’ conduct was intentional and outrageous. As part of a scheme to defraud the government in a fraudulent short-sale, EARLEY, JUDD INC, KAHIA and THE KAHIA TRUST disregarded the plaintiffs’ rights. Instead of showing remorse when caught, they added to the damages by enlisting the other defendants named in this cause in a conspiracy to intentionally interfere 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 and HOGENBIRK in their trespass on the front display area. CANNATELLA or his agent stole the computer, cell phone and camera from plaintiffs and was drunk on the property at all hours, causing PIETRCZAK to stand guard on the roof overnight.
107. When CLEMENS and HOGENBIRK got caught trying to convert the trash bin, instead of apologizing, they yelled threats and took a challenging stance. Plaintiffs had customers in the store at the time and decided then that we could not remain open to the public until the defendants gave us a strong indication that they would refrain from their trespass.
108. Defendants could be substantially certain that their conduct would result in an injury to the plaintiffs. In fact, EARLEY and KAHIA made several written comments about plaintiffs’ weak mental health, verbally and in writing. Plaintiffs were completely innocent victims of the interference with contract. For the conspirators to torment a man who they know is in recovery from a harsh life, who worked 16 hour days 7 days a week to turn nothing into something they wanted to steal, who was a Heratio Alger story, is reprehensible.
109. The defendants’ conduct was directed at the individual plaintiffs.
110. The emotional distress suffered by the plaintiffs was severe, including hospitalization to each.
111. 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.
112. FIFTH CAUSE OF ACTION FOR CONVERSION
113. Plaintiffs hereby repeat and reallege and incorporate by reference all paragraphs 1 through 102 above, as though fully set forth in this cause of action.
114. This cause of action is alleged as to DEFENDANT JORDAN and VICKI KAHIA.
115. 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.
116. SIXTH CAUSE OF ACTION FOR NEGLIGENT INTERFERENCE WITH PROSPECTIVE ECONOMIC RELATIONS AGAINST CAPITAL REAL ESTATE VENTURES, INC., RANDY RIVERA, ROCK SOLID REAL ESTAE CORP, and PETER MICHAEL ROCCA
117. Plaintiffs hereby repeat and reallege paragraphs 1 through 115 of their General Allegations as though fully set forth at this place.
118. 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 MICHAEL ROCCA negligently interfered with a relationship between plaintiffs and JORDAN that probably would have resulted in an economic benefit to plantiffs.
119. 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 and theft of their personal property.
120. 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;
121. 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;
122. That CAPITAL REAL ESTATE VENTURES, INC., RANDY RIVERA, ROCK SOLID REAL ESTATE CORP., and PETER MICHEAL ROCCA failed to act with reasonable care; A broker owes a duty to all parties to a transaction [including the equitable assignee and lessees] to use reasonable care, skill, and diligence. Smith v. Rickard (1988) 36 CA3d 1354, 1364; Timmsen v. Forest E. Olson, Inc. (1970) 6 CA3d 860, 871.
123. 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. Under the common law of agency, a salesperson operates as an agent of the broker, and the broker generally bears vicarious liability for acts of the agent. Real Estate brokers have a statutory duty to reasonably supervise their salespersons. Business and Professions Code 10177(h) 10 Cal. Code Regs. 2725. Brokers may also be held liable for acts of their employees performed within the scope of their employment under the common law theory of respondeat superior. Gipson v. Davis Realty Co. (1963) 215 CA2d 190, 209 Liability is not limited to negligence, but it may include malicious acts and other intentional torts. Alhino v. Starr (1980) 112 CA3d 158, 174. For purposes of tort liability under respondeat superior, a salesperson is considered a broker’s agent, regardless of whether the salesperson would be classified as an independent contractor for other purposes. See Grubb & Ellis Co. v. Spengler (1983) 143 CA3d 890, 895.”The broker is liable as a matter of law for all damages caused to third persons by the tortious acts of the salesperson committed within the course and scope of employment.”California Real Estate Loans, inc. v. Wallace (1993) 18 CA4th 1575, 1581
124.. The contractual relationship between JORDAN and PLAINTIFFS was disrupted, by breach of the ROFR clause in the lease;
125. LAURA LYNN and MICHEAL A. PIETRCZAK were harmed by the breach. Not only did Plaintiffs lose the immediate benefit of buying the property with potentially gifted money, but when defendants refused to correct the problem and refused to help make stipulated payments to KAHIA while the issues were decided by a jury, plaintiffs’ damages escalated. If plaintiffs had been given their ROFR timely, they would have evicted CANNATELLA with 30 days notice; and plaintiffs computer, camera and phone would not be stolen, with the loss of data and deletion of over 250 blog posts; Plaintiffs would not be hospitalized with severe, suicidal depression several times; Plaintiffs would not have “divorced” during one of PIETRCZAK’ S depressive states.
126. 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. But for the sale to KAHIA, Plaintiffs would pay less than rent for mortgage, would own the property that has a huge upside potential, would not have CANNATELLA, HOGENBIRK and CLEMENS as neighbors, would probably still have their computer, camera and phone that were stolen, would not have 250 blog posts deleted by whoever stole the computer, would have taken the trip of a lifetime to Colorado, instead of canceling the trip to be at court hearings, would probably not have “divorced”, would not have debts for medical bills and would have a better reputation.
127. SEVENTH CAUSE OF ACTION FOR TRESPASS AGAINST JUSTIN CANNATELLA AND GARRY HOGENBIRK
128. Plaintiffs hereby repeat and reallege paragraphs 1 through 126 of their General Allegations as though fully set forth at this place.
129. Plaintiffs allege this cause of action against GARRY HOGENBIRK and JUSTIN CANNATELLA.
130. HOGENBIRK and CANNATELLA intentionally parked vehicles in an area that was in the possession of plaintiffs. Evidence of possession was the plaintiffs ROFR to purchase the property that was denied to them, the lease agreement between plaintiffs and JORDAN including the letter specifying use of the front display, the customary use of the area by plaintiffs until the trespass, and the order of March 27, 2013 giving possession of the entire parcel 2946 Garnet to the plaintiffs.
131. Plaintiffs right to possession was superior to HOGENBIRK and CANNATELLA’S. CANNATELLA got his permission from his co-conspirator, EARLEY and KAHIA and then by duping the SDPD. HOGENBIRK claims to have permission from KAHIA, though EARLEY claimed in writing not to know who HOGENBIRK is.
132. EIGHTH CAUSE OF ACTION FOR FRAUD AGAINST VICKI KAHIA, THE VICKI KAHIA TRUST, JUSTIN EARLEY, CREV, RANDY RIVERA, ANTHONY CARNEVALE, ROCK SOLID REAL ESTATE CORP, and PETER MICHAEL ROCCA
133. Plaintiffs hereby repeat and reallege paragraphs 1 through 131 of their General Allegations as though fully set forth at this place.
134. Plaintiffs allege this cause of action against KAHIA, THE KAHIA TRUST, EARLEY, CREV, RANDY RIVERA, CARNEVALE, ROCK SOLID.
135. EARLEY, CARNEVALE and KAHIA all claimed under penalty of perjury to having discussions with plaintiffs during escrow. Plaintiffs allege that no mention of the accepted agreement was made. No tenant estoppels were requested as is customary. This indicates concealment. Allison- McCloskey Escrow tried to keep the transmittal of leases in escrow out of the escrow documents subpoenaed. This spoliation of evidence indicates deceit. Allison-McCloskey Escrow was acting on behalf of the named defendants.
136. When EARLEY spoke to plaintiffs about December 20, 2014, he was careful to give half-truth only. He said he was thinking of purchasing the property. When LYNN asked what price he was offering, he said he could not tell.
137. The concealment of the accepted offer was meant to induce the plaintiffs to act differently than if they knew about the accepted offer. In fact, the plaintiffs did not ask LYNN’S trustee for the funds to buy the property until March 2013. Had she asked in December 2012, her sister LYNN would have probably bought the property with LYNN instead of buying a single user building a mile away.
138. Section 525 of the Restatement Second of Torts states: “One who fraudulently makes a misrepresentation of fact… for the purpose of inducing another to act or to refrain from action in reliance upon it, is subject to liability to the other in deceit for pecuniary loss caused to him by his justifiable reliance upon the misrepresentation.”
139. Defendants knew the effect the concealment would have, in that plaintiffs would not exercise their right to purchase the property if they did not know there was an accepted offer.
140. Defendants intended to induce reliance on the concealment because they would each profit from the sale to KAHIA, but would not be paid or get the great deal if plaintiffs knew about the accepted offer.
141. Plaintiffs had no reason to believe EARLEY and KAHIA were anymore than other lookie-loos at the property. If they had an accepted offer, Plaintiffs expect they would have said “we have an accepted offer”, asked for receipt of the written notice, and asked for tenant estoppels.
142. Had defendants not concealed the transaction, plaintiffs would have asked LYNN’S trust for the funds to purchase the property with her sister. Plaintiffs would not have suffered through the anxiety of an improper UD, the obnoxious trespassing neighbors or any of the other damages as alleged in other causes of action.
143. Brokers in this cause of action were liable under the theory of respondeat superior and laws of agency.
144. NINTH CAUSE OF ACTION FOR WASTE AGAINST VICKI KAHIA, THE VICKI KAHIA TRUST, JUSTIN EARLEY, JUDD,INC., JUSTIN CANNATELLA, GARRY HOGENBIRK and MICHAEL CLEMENS
145. Plaintiffs hereby repeat and reallege paragraphs 1 through 143 of their General Allegations as though fully set forth at this place.
146. Plaintiffs allege this cause of action against KAHIA, THE KAHIA TRUST, EARLEY, JUDD, INC., CANNATELLA, HOGENBIRK, and CLEMENS.
147. Tenants have made and the other defendants approved and encouraged changes to the building at 2950 Garnet. These changes include, but are not limited to overloading the roof with two large billboards, without permit; the cracking and what looks to be collapse of the building at the North East corner, probably from the overloading of the roof combined with the following; pouring of a slab and footing without reinforcing steel or inspection; the divergence of power from 2946 Garnet’s service, then supposedly or temporarily disconnecting, all with illegal approval by THE CITY; according to an online advertisement, a kitchen and bathroom were added. The kitchen is without permit; a heavy duty compressor was installed with no electrical permit (60 amp).
148. Further, KAHIA and THE KAHIA TRUST and KAHIA’S attorneys neglected to communicate with plaintiffs about code violations alleged by THE CITY. Plaintiffs removed barbed wire and removed a storage unit from the side of the property. JORDAN had approved the storage container. But, not knowing how long litigation would take and the outcome, and because all the plaintiffs income was used to pay KAHIA the stipulated payment, plaintiffs could not afford to go through the process to permit the storage unit. If plaintiffs have full ownership and possession of the property, they will pay to permit the storage unit. In the meantime, plaintiffs’ capacity and function of The Estate Sale was diminished by an amount to be proven at trial.
149. TENTH CAUSE OF ACTION FOR NEGLIGENCE INCLUDING NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AGAINST THE CITY OF SAN DIEGO
150. Plaintiffs hereby repeat and reallege paragraphs 1 through 148 of their General Allegations as though fully set forth at this place.
151. Plaintiffs allege this cause of action against THE CITY OF SAN DIEGO.
152. The SDPD and code enforcement do not have a strict duty to protect. But in this case, there was negligent supervision of the officers, with a notation on the police record that the conflict at the property was a civil matter, not criminal. There was slow or non-existent response to calls. Police officers looked right at CANNATELLA’S and HOGENBIRK’S vehicles parked blocking the display area and refused each and every time to cite them for trespass. Police were given copies of court documents that showed EARLEY and KAHIA were lying to them, and refused each and every time to cite or arrest the obstructers of justice. Because of the communications between THE CITY and the other defendants that occurred further back than allowed by statute to be actionable, plaintiffs have a reasonable belief that THE CITY was not giving equal protection under the law. Also, some of the crimes complained of by plaintiffs require mandatory police action. Violation of the restraining order on September 5, 2014 carries a penalty that “shall” be imposed. The police saw video of the end of the incident that showed CANNATELLA was definitely in violation and that he lied to them.
153. The police also refused to investigate several of plaintiffs’ complaints properly. There are surveillance cameras on 2950 Garnet that CANNATELLA told police feeds into a web based service. The police never confiscated or subpoenaed the tape. If they did, and as will be done at trial, the tapes show CANNATELLA lied to the police and Plaintiffs always told the whole truth.
154. THE CITY effectively gave an easement to CANNATELLA and HOGENBIRK without any proper eminent domain procedure.
155. Because there were over 80 calls made to SDPD regarding the property and they picked PIETRCZAK up for WIC 5150 et seq holds several times, they knew plaintiffs were under severe stress. Still, the police came to the scene one time that CANNATELLA locked LYNN into the property, and after one officer told LYNN she was “crazy” and that LYNN was not imprisoned because she could move the heavy, chained fence and slip out by foot, the police left without giving any assistance or calling for medical help for LYNN, who was hysterical.
156. It appears to plaintiffs, that after a meeting with Lieutenant Scott Wahl, who said he would get back to plaintiffs the next week, around September 12, 2014, that SDPD discovered they were wrong the past two years and are stonewalling plaintiffs. Wahl never got back to them, even after two phone messages from LYNN and a visit by LYNN to the police station Northern Division.
157. When LYNN went to KAHIA’S candy store on August 29, 2014 to try to solve the problem with CANNATELLA, KAHIA’s employee went hysterical with no prompting. LYNN stayed at the property until police arrived and asked Officer Belland to look at the surveillance video to see this was a false report. Officer Belland refused and informed LYNN that if she returned to the candy store, she would be arrested for trespass.
158. Lack of equal protection under the law and the eminent domain without proper process of plaintiffs’ property contributed substantially to plaintiffs’ loss of business and emotional distress.
159. On August 29, 2014, LYNN was seen by emergency doctors at Scripps because of the anxiety caused by the false imprisonment and the SDPDs lack of an appropriate response. During an incarceration in County Jail in Vista on WIC 5157 in April 2014, PIETRCZAK’S foot was infected and he was held in a freezing cell with just a hole to urinate or defecate in and a hard metal bench to sit on. He stood for 36 hours. He went to Scripps Emergency after being released and was put on antibiotics and anti-inflammatories. THE CITY denied fault for anything that occurred to PIETRCZAK while in a county facility. But with their history, SDPD should not have incarcerated PIETRCZAK in jail. He should have been brought to a hospital. He was not arrested. SDPD transported PIETRCZAK from Pacific Beach to Vista for some reason, so lack of beds in a more caring facility is no excuse.
160. ELEVENTH CAUSE OF ACTION FOR INTRUSION OF PRIVACY AGAINST VICKI KAHIA, THE VICKI KAHIA TRUST, JUSTIN EARLEY, JUDD, INC., JUSTIN CANNATELLA, PB SPORTS INC, PB SPORTS, PB AUTO GROUP
161. Plaintiffs hereby repeat and reallege paragraphs 1 through 159 of their General Allegations as though fully set forth at this place.
162. Plaintiffs allege this cause of action against KAHIA, THE KAHIA TRUST, EARLEY, JUDD, INC., CANNATELLA, PB SPORTS INC., PB SPORTS and PB AUTO GROUP
163. As part of the conspiracy to evict the plaintiffs after the judicial eviction failed, so as to expand CANNATELLA’S businesses into PB AUTO GROUP, the conspirators stole plaintiffs computer, camera and telephone. These devices had private information on them that might help defendants find embarrassing or potentially damaging information about plaintiffs that would not be available through due process because it is irrelevant. While plaintiffs don’t have actual knowledge of who came into the building while plaintiffs were gone, it is more likely than not it was one of the conspirators, acting on behalf of the group.
164. The theft of plaintiffs’ devices was intentional. It took planning and use of the 2950 parking lot. No cars came onto the property during the theft of the computer and camera. The cell phone was stolen when plaintiffs were at church. Nothing else was taken, even though plaintiffs store was full of jewelry, antiques and furnishings worth far more than the bottom of the line cell phone, except to people who want to investigate plaintiffs and are intruding on privacy.
165. Any reasonable person would be offended if their private texts, emails and other data were available to people who are tormenting them.
166. Emails that were open on the computer were private as were text conversations between the plaintiffs who are like husband and wife, between plaintiff and her children and plaintiff and her best friends.
167. Plaintiffs are appalled that VICKI KAHIA, JUSTIN EARLEY and JUSTIN CANNATELLA can peek into their personal lives even more than the incredible violation of privacy that needs to occur for proper discovery. KAHIA even objected to form interrogatories based on violation of her privacy, and she is the one who caused the litigation. It is rude, embarrassing and allegedly criminal to steal someone else’s private data.
168. PRAYER FOR RELIEF
The Plaintiffs pray for declaratory and injunctive relief on each cause as follows:
169. 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 build good will for The Estate Sale and reimbursement of $4,000 per month paid to KAHIA from March 29, 2013.
170. 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.
171. 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.
172. On the fourth cause of action, the plaintiffs seek medical expenses, $2,000,000 each plaintiff 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.
173. On the fifth cause of action the plaintiffs seek $6,200 from defendant KAHIA.
174. On the sixth cause of action the plaintiffs seek $171,000 for difference between mortgage and rental payments for five years, $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 $34,000 per month from January 1. 2013 until settled for loss of income, plus $2,000,000 each plaintiff for pain and suffering for having to share the property with CANNATELLA et al during the pendancy. If the broker defendants were merely negligent, they should have admitted to that within a few days of finding out about the error and mitigated the future damages.
175. On the seventh cause of action, $34,000 per month loss of income from December 5, 2013 until the restraining order is overturned and CANNATELLA and HOGENBIRK agree in writing that parking on 2946 Garnet is trespass.
176. On the eighth cause of action, $171,000 for five years of the difference in mortgage and rent, plus treble damages for fraud, plus the subsequent damages that would not occur but for the fraud, including $2,000,000 each plaintiff for pain and suffering and $34,000 per month loss of income.
177. On the ninth cause of action, amount to be determined at trial for remedial work to 2950 Garnet, including painting of the exterior back to yellow, removal of billboards from the roof, engineering plans to stabilize collapsing corner of building.
178. On the tenth cause of action, Loss of income of $34,000 from September 5, 2014 until settlement or adjudication. $2,000,000 each plaintiff pain and suffering.
179. On the eleventh cause of action, $2,000,000 each plaintiff pain and suffering.
180. By pre-trial motion, that a receiver be appointed to THE PROPERTY pending the outcome of the action.
181. That Plaintiffs recover their costs of suit, including costs of investigation.
182. For such other and further relief that the Court deems, just, proper, and equitable.
DATED: November 11, 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 November 11, 2014
LAURA LYNN __________________________________________________
MICHEAL A. PIETRCZAK __________________________________________