Preview
1 GARY S SAUNDERS (SBN 144385)
SAUNDERS & ASSOCIATES, APC
2 610 NEWPORT CENTER DR. #250
3 NEWPORT BEACH, CA 92660-2517
Telephone: (714) 583-6443
4 Email: gary@saundersapc.com
5
Attorney for Plaintiff,
6 John Sciaraffa
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF LOS ANGELES
10
11 JOHN SCIARAFFA, an individual, CASE NO:
PLAINTIFF'S VERIFIED COMPLAINT FOR
12 Plaintiffs,
1. VIOLATION OF SECURITY DEPOSIT
13 V. REGULATIONS - § 1950.5(c)(l);
2. BREACH OF IMPLIED WARRANTY OF
14 HABITABILITY;
DONNY COHEN, an individual; ASHLEY
3. BREACH OF QUIET ENJOYMENT;
15 COHEN, an individual; and DOES 1-20,
4. VIOLATION OF CALIFORNIA'S TENANT
inclusive,
16 RIGHT TO PRIVACY;
5. TRESPASS TO LAND;
17 Defendants.
6. BREACH OF CONTRACT;
18
7. BREACH OF IMPLIED COVENANT OF
GOOD FAITH AND FAIR DEALING;
19 8. RESTITUTION;
9. FRAUDULENT MISREPRESENTATION &
20 DECEIT;
21 10. FRAUDULENT INDUCEMENT;
11. PROMISSORY FRAUD;
22 12. NEGLIGENCE;
13. HARASSMENT;
23
14. VIOLATION OF B&P CODE§ 17200;
24 15. BREACH OF B&P CODE§ 10177 (f) & G);
16. INTENTIONAL INFLICTION OF
25 EMOTIONAL DISTRESS;
17. DECLARATORY RELIEF.
26
27 JURY TRIAL DEMANDED
28
1 COMES NOW, John Sciaraffa (hereinafter "John" or "Plaintiff') by and through his counsel
2 files his Verified Complaint and hereby alleges as follows:
3
4 PARTIES
5 1. Plaintiff John Sciaraffa, also known as "AngeI" is, and at all times relevant to this action, an individual
6 who resides at 5107 Haskell, Encino, CA 91436. Plaintiff is a full-time student and at all times
7 pertinent to this case, was a tenant at the property in question, owned and managed by the Defendants.
8 2. Plaintiff is informed and believes and thereon alleges that, at all times mentioned herein, Defendant
9 Donny Cohen ("Defendants") who, at all times relevant to this action, resides in Encino, County of
10 Los Angeles, California, 91436. Defendant Donny is married to Defendant Ashley. Defendant Donny
11 is California currently holds a restricted real estate (license DRE# 01297608), pursuant to a tribunal
12 before the Bureau of Real Estate, State of California, Case No. H-39209 LA, when his license was
13 revoked on or about February 12, 2014, following a conviction for Penal Code 484 A (Petty theft).
14 On or about April 29, 2015, Respondent Donny was allowed to apply for a restricted real estate
15 salesperson license pursuant to Business and Professions Code 10156.5.
16 3. Plaintiff is informed and believes and thereon alleges that, at all times mentioned herein, Defendant
17 Ashley Cohen ("Defendant Ashley") who, at all times relevant to this action, resides in Encino,
18 County of Los Angeles, California, 91436. Defendant Donny is married to Defendant Donny.
19 4. Plaintiff is ignorant of the true names and capacities of Defendants DOES 1-10 inclusive ("DOES")
20 and therefore sues these Defendants by such fictitious names. Plaintiff will amend this complaint to
21 allege DOES' true names and capacities when they are ascertained. Each of the Defendants
22 designated herein as a fictitiously named Defendant is, and in some manner, was responsible for
23 events and happenings referred to herein either contractually or tortuously.
24 5. Plaintiff is informed and believes, and upon this basis alleges, Defendants and each of them are, and
25 at all times herein were, the agents, joint venturers, officers, members, representatives, consultants,
26 or employees of their co-Defendants and in committing the acts herein alleged, were acting within
27 the scope of such affiliation with knowledge, permission, consent, or subsequent ratification of their
28 co-Defendants.
2
1 JURISDICTION AND VENUE
2 6. The California Superior Court has jurisdiction over this action pursuant to California Constitution
3 Article VI §10 and Code of Civil Procedure§ 410.10 because Defendants engaged in business in the
4 State of California and the acts of wrongdoing alleged in this complaint occurred in California.
5 Defendants have more than "sufficient minimum contacts" within the State of California such that
6 this Court's exercise of personal jurisdiction over Defendants herein "does not offend the traditional
7 notions of fair play and substantial justice."
8 7. Venue is proper in this Court pursuant to Code of Civil Procedure § 392(a) because the subject
9 property is located within the jurisdictional region of this Court. Additionally, Defendants herein
10 purposefully directed their activities to the State of California and consummated a transaction with a
11 resident of the State of California. As a result, Defendants caused an event or events to occur in
12 California, and more particularly in the County of Los Angeles out of which this action arises and
13 which forms the basis of this action.
14
15 GENERAL AND FACTUAL ALLEGATIONS
16 8. On or about November 28, 2023, Plaintiff John Sciaraffa, a full-time student, entered into a lease
17 agreement (Exhibit "A") for a rental property advertised as a furnished "Cozy Cottage" located at
18 5107 Haskell, Encino, CA 91436 for $2,750.00 per month. The lease term began on November 28,
19 2023, and ends on November 30, 2024. This lease was entered into with the Defendant landlords,
20 Mrs. Ashley Cohen and Mr. Donny Cohen. (Exhibit "A")
21 9. Sometime in the weeks preceding the agreement, John found the "cottage" online and it appeared to
22 be an appealing living situation for Plaintiff, particularly given that it is furnished, comes with Wi-
23 Fi, and offeres other advertised amenities. (Exhibit "B")
24 10. Defendants Mrs. Ashley Cohen and Mr. Donny Cohen, the landlords of the 5107 Haskell, Encino,
25 CA 91436 (APN 2261-002-011), also live on the lot in the main single-family home unit. Purchased
26 in 2015 for approximately $895,000, it is now worth nearly twice as much, at $1, 7313,25 .00. (Exhibit
21 "C")
28
3
1 11. Furthermore, it is listed as a LARl Single Family Residence. This type of zoning does not appear to
2 permit the use of rental units. Even if renting to tenants has been permitted, it does not appear the
3 building of additional units in the backyard for additional dwellings is permitted under the current
4 zoning. (Exhibit "C")
5 12. The dramatic increase in price is likely not due to luck; Defendant Donny Cohen is notably involved
6 and successful in the real estate industry. Alongside his brother Abraham Cohen, Defendant Donny
7 Cohen is a California-licensed relator (DRE# 01297608) and Director of The Cohen Brothers Real
8 Estate Group. The company is described on Donny's Realtor.com listing (Exhibit "D") as:
9 a. "The Cohen Brothers Real Estate Group is dedicated to providing innovative,
10 exceptional, and personalized services ofonly the highest quality. The real estate business
11 is forever growing and changing and we make it a mission to constantly grow and adapt
12 with it. We are constantly learning and use each new skill to provide our clients with the
13 best service. We understand that each home and home owner is different and unique. It is
14 our mission to provide you with the skills and resources specific to you and your family,
15 all the while adhering to the highest standard ofintegrity and ethical business practices.
16 With a law degree, a history in construction, and a previous successful mortgage
17 brokerage company, Abraham and Donny Cohen have a combined experience of 30+
18 years in real estate that expands across every area of the market; well beyond simply
19 making an offer on a house. This allows us to be a sounding boardfor our clients in every
20 aspect of the deal, from contracts and negotiations, to home improvement, to loans, and
21 everything in between. "
22 13. It should be noted that the text in the aforementioned sales pitch is misleading, in that Defendant
23 Donny is not in possession of a law degree, rather his brother, Abraham Cohen, hold the degree.
24 14. According to his personal biography on The Cohen Brothers Real Estate Group webpage (Exhibit
25 "E"):
26 a. "Donny Cohen is a highly experienced and respected Real Estate professional with over
27 20 years of industry experience. He has a background in Home Mortgages and Home
28 Development and has been a part of the Encino, Sherman Oaks, and Studio City
4
1 communities for 40 years. Donny brings a unique perspective to his work. He has a deep
2 understanding of the Real Estate market representing clients across the Greater Los
3 Angeles area, with an emphasis on helping families who have inherited Real Estate
4 through Trusts, Wills, or Probate.
5 With over $1 billion in career sales and a reputation for using high-tech marketing
6 strategies and sharp negotiating skills, Donny is dedicated to providing the finest Real
7 Estate services available based on the highest standards of ethics, value, and
8 commitment to client care.
9 As a seasoned Realtor and experienced Real Estate Investor, Donny is well-versed in
10 the nuances of Real Estate transactions. He is a master at overcoming obstacles during
11 escrow and devising solutions that satisfy all parties and is a true believer in the American
12 Dream of homeownership.
13 He is passionate about helping his clients succeed and always seeks new and innovative
14 ways to ensure their success.
15 In his personal life, Donny is an avid fitness enthusiast and enjoys spending time with his
16 family, trying new restaurants, and traveling. He also has a love for knowledge and is
17 always seeking new ways to improve and grow both personally and professionally.
18 15. As stated above in ,-r 2, Defendant Donny's license is currently limited, "as a result of an
19 administrative action rendered by the Department of Real Estate. A restricted license is a probationary
20 type license." (Exhibit "F")
21 16. Shortly after moving in on December 2, 2023, the Plaintiff encountered several issues with the
22 property.
23 17. Upon agreeing to the lease, the Plaintiff was required to pay a substantial security deposit of$11,000,
24 equating to four months' rent. This requirement, notably higher than typical rental agreements, placed
25 a considerable financial burden on the Plaintiff, a full-time student. (Pages 2 & 9 of the Lease,
26 Exhibit "A").
27 18. On November 26, 2023, Plaintiff asked if the security deposit would be placed in an interest-bearing
28 account; Mr. Cohen's response was dismissive. He stated, "I'm not a bank, dude!" Beyond the
5
1 condescending tone of the remark, it suggested a casual approach to a significant financial obligation
2 and raised questions about the proper handling of the security deposit as per legal requirements. This
3 manner of speech made Plaintiff uncomfortable, and was amongst the first of many significant
4 transgressions.
5 19. The "cottage," while initially appealing, had significant deficiencies. The Plaintiff soon discovered
6 the unit lacked central heating, a critical feature for comfort and safety considering. The issue with
7 the heating was compounded by the fact that the cottage was also poorly insulated, leading to
8 uncomfortable and potentially unsafe living conditions.
9 20. Plaintiff encountered issues with the furnishings as well, in particular, the mattress provided by the
10 Defendants. It was unsuitable and caused back pain, a significant concern given the Plaintift's need
11 for proper rest as a student. Plaintiff expressed his discomfort and requested a resolution, but the
12 Defendants advised him to purchase his own replacement.
13 21. The Plaintiff discovered a hazardous condition with the flooring, specifically a substantial crack near
14 the toilet area. This condition presents a safety hazard and indicates a failure to maintain the premises
15 in a state of good repair, as mandated by law.
16 22. Another critical issue was the internet connectivity. As a student, the Plaintiff heavily relied on stable
17 internet access for his studies. When John told the Defendants about the issue, they provided the
18 home WiFi, however, this internet service was unreliable at best, making it challenging for him to
19 fulfill his academic obligations. This situation was also communicated to the Defendants, but no
20 effective solution was provided.
21 23. Shortly after moving in, the Plaintiff discovered that his access to the laundry facilities was restricted.
22 The Defendants informed him that he would only have access to the laundry on certain days of the
23 week. This limitation was not only inconvenient but also contrary to the Plaintiffs understanding of
24 the lease terms, which did not specify such restrictions.
25 24. The Plaintiff also faced issues with accessing his mail. He was denied access to a lockable mailbox,
26 an essential aspect of privacy and security for any tenant. Instead, the Defendants insisted on
27 delivering the mail to the Plaintiffs door, a solution that was not only impractical but also invaded
28 the Plaintiffs privacy. (Exhibit "H")
6
1 25. When asked, Defendants suggested Plaintiff could use their PO Box five miles away at 4335 Van
2 Nuys Boulevard Sherman Oaks 91403. (Exhibit "I") This issue was particularly troubling for
3 Plaintiff, given the importance of receiving mail securely and promptly. Plaintiff was unable to
4 receive any mail, including a hard copy of his medical insurance card. It made life as a student
5 difficult as well, as Plaintiff was forced to resort to traveling long distance and Uber rides to retrieve
6 books and supplies.
7 26. John is subjected to a demeaning restriction by the Defendants, specifically being prohibited from
8 using the front gate of his rented "Cozy Cottage." Instead, he is compelled to use the back entrance,
9 which is not only inconvenient but also causes him embarrassment and discomfort. Thie restriction
10 is compounded by the fact that many of Defendants' neighbors were given the electronic passcode,
11 while Plaintiff, a lawful tenant, was restricted. This restriction on his access to the property's
12 traditional entrance infringes upon his reasonable expectations as a tenant and undermines his dignity.
13 27. Plaintiff has also been subjected to ongoing harassment, notably through Defendant Donny Cohen's
14 unwarranted surveillance on social media.
15 28. This stalking behavior adds to the sense of harassment, which is further exacerbated by a distressing
16 incident where a marijuana joint was found in Plaintifrs private space, particularly concerning given
17 his health issues and non-smoking status. The marijuana joint, though not smoked by Plaintiff given
18 his health conditions, was presumably left there by a guest.
19 29. In another event, an unknown Caucasian male entered Plaintiff's studio without his permission or
20 notice. The door was mistakenly unlocked, but the door was fully shut and the curtains we closed.
21 The situation escalated to a police interaction, where Defendant Cohen's conduct painted the Plaintiff
22 unfavorably.
23 30. Throughout his tenancy thus far, Plaintiff made numerous attempts to communicate with the
24 Defendants about the various issues he faced. However, these efforts were met with inadequate
25 responses or outright neglect, as evidenced by the email correspondences and documented complaints
26 (Exhibit "I").
27 31. Plaintiff has heart problems and heart palpitations. The ongomg stress endured by Plaintiff
28 exacerbated these health issues.
7
1 32. The series of events and the Defendants' responses---or lack thereof-paint a picture of a rental
2 agreement that was not honored as per the terms set out in the lease and the advertised conditions of
3 the property. The Defendants' failure to address the critical issues raised by the Plaintiff not only
4 breached the lease agreement but also impacted the Plaintiffs living conditions and well-being
5 significantly.
6 33. Beyond the unlawful deposit and living conditions, Plaintiff incurred costs of paying for his own
7 internet. Despite being a student, Plaintiff endured stress and wasted valuable time urgently finding
8 a new place to live.
9
10 FIRST CAUSE OF ACTION
11 VIOLATION OF SECURITY DEPOSIT REGULATIONS - § 1950.S(c)(l)
12 (Against All Defendants & Does 1-10)
13 34. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth
14 herein.
15 35. "Cal. Civ. Code§ 1950.5(c)(l) Except as provided in paragraphs (2), (3), or (4), a landlord may not
16 demand or receive security, however denominated, in an amount or value in excess of an amount
17 equal to two months' rent, in the case of unfurnished residential property, and an amount equal to
18 three months' rent, in the case of furnished residential property, in addition to any rent for the first
19 month paid on or before initial occupancy.
20 36. In addition to this regulation, the California legislature's public policy is clearly against such
21 egregious and nearly extortionate deposits. On October 11, 2024, Governor Gavin Newsom signed
22 Assembly Bill 12, which limits security deposits for rental properties to one month's rent. Though
23 scheduled to take effect on July 1, 2024, this clearly indicates the spirit of California's public policy
24 on residential security deposits.
25 37. Excessive Security Deposit
26 a. Page 2 of the Final Lease agreement states "XIV. SECURITY DEPOSIT. A security
27 deposit in the amount of$11,000.00 shall be required from the Tenant(s) at the execution
28 of this Agreement for the faithful performance of all its terms and conditions ('Security
8
1 Deposit'). The Security Deposit shall be returned to the Tenants) within O days after this
2 Agreement has terminated. The Security Deposit shall be returned in full, and in the
3 manner prescribed by state and local laws, upon the end or termination of the Lease Term,
4 unless the Landlord intends on imposing a claim on the Security Deposit for any damages.
5 The Security Deposit shall not be credited towards Rent unless the Landlord gives their
6 written consent." (Exhibit "A")
7 b. Furthermore, page 9 of the Final Lease agreement goes on to define the terms of the
8 security deposit, in a handwritten addition, as "The 4 month security deposit is exactly
9 that, a deposit: This deposit is to be returned when this lease ends on good terms without
10 breaking this lease early and with no damage to the unit or the contents inside this unit. If
11 there are damages, the security deposit will be used to fix the unit or its contents. The
12 remaining deposit will be returned to the renter." (Exhibit "A")
13 38. Inappropriate Use and Handling of Security Deposit
14 a. On November 26th, Plaintiff asked Donny Cohen, a real estate agent, if his security
15 deposit would be placed into an interest-bearing account. His response was, "I'm not a
16 bank, dude!" He also indicated that he would deduct from the security deposit at the lease's
17 end for "normal wear and tear."
18 b. In the original draft of the lease, Mr. Cohen added a "1st month's rent" line item to the
19 page, which included the total costs ofrenting the property. However, this line item should
20 not have existed, as the lease itself declares that Plaintiff is paying 6 months' rent upfront.
21 c. On November 27th, Mr. Cohen stated that the security deposit would "probably" be kept
22 in one of Mrs. Cohen's bank accounts. On the same day, he clarified that normal "wear
23 and tear" would not constitute legal grounds for retaining the security deposit after the
24 lease term. An updated lease was sent to Plaintiff on this day and was reviewed by another
25 real estate agent, Sharon Gavin.
26 39. The Plaintiff, being less experienced in real estate matters, was at a clear disadvantage. The
27 Defendants, particularly Mr. Cohen, exploited this situation. Although California landlords are
28 generally not required to place security deposits in interest-bearing accounts, given Donny's
9
1 background in real estate, such a request was reasonable. Donny's personal bio on his company
2 webpage states, "Donny is dedicated to providing the finest Real Estate services available based on
3 the highest standards of ethics, values, and commitment to client care." It goes on to mention his
4 expertise in real estate transactions and his belief in the American Dream of homeownership.
5 Therefore, the student tenant, residing in a "cottage" in Donny's backyard, deserves the same respect
6 Donny claims to give his clients, not a dismissive "I'm not a bank, dude!" comment, which is, quite
7 frankly, repugnantly condescending coming from a person of his status.
8 40. The excessive security deposit, coupled with Mr. Cohen's dismissive attitude and intentions for its
9 use, highlights a significant breach of trust and legal duty.
10 WHEREFORE, Plaintiff prays for judgment as set forth below.
11
12 SECOND CAUSE OF ACTION
13 BREACH OF IMPLIED WARRANTY OF HABITABILITY
14 (Against All Defendants & Does 1-10)
15 41. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth
16 herein.
17 42. Pursuant to California Code, Civil Code § 1941.1, a dwelling is deemed untenantable if it
18 substantially lacks several standard characteristics, including adequate heating facilities, properly
19 maintained floors, stairways, and railings, and a locking mail receptacle for each residential unit.
20 43. Heating Facilities (Subsection 4): The property at 5107 Haskell, Encino, CA, was devoid of central
21 heating, crucial for maintaining a habitable temperature during colder periods. This fact is especially
22 true considering the unit's poor insulation. This is evidenced by the large gap under his front door,
23 which would routinely flood whenever rain occurred. This deficiency not only compromised the
24 comfort of the Plaintiff but also posed a health risk, violating the legal requirement for heating
25 facilities to be in good working order.
26 44. The absence of adequate heating facilities is a clear violation of California Civil Code§ 1941.1(4).
27 The provision of a habitable environment, including necessary heating, is a fundamental landlord
28
1 obligation. This breach is significant, as it directly affects the habitability and safety of the dwelling,
2 making the environment untenable and hazardous.
3 45. Floors, Stairways, and Railings (Subsection 8): The Plaintiff discovered a hazardous condition with
4 the flooring, specifically a substantial crack near the toilet area. This condition presents a safety
5 hazard and indicates a failure to maintain the premises in a state of good repair, as mandated by law.
6 46. Under Cal. Civ. Code§ 1941.1(8), landlords are obligated to maintain floors, stairways, and railings
7 in good repair. The existence of such a hazardous condition not only poses a risk of physical injury
8 but also reflects the neglect of the Defendants in upholding the property's structural integrity.
9 47. Locking Mail Receptacle (Subsection 9): The Defendants failed to provide a lockable mailbox, a
10 requirement stipulated for residential units. This omission infringed upon the Plaintiffs privacy and
11 security, a critical aspect of the dwelling's habitability.
12 48. The denial of a secure mail receptacle contravenes the specific requirement set forth in Civ Code §
13 1941.1(9) and Section 17958.3 of the Health and Safety Code. This breach not only impacts the
14 Plaintiffs privacy but also signifies a failure to adhere to statutory standards for residential
15 habitability.
16 49. The Plaintiff suffered considerable distress due to these breaches. The lack of heating led to
17 uncomfortable and potentially unhealthy living conditions. The hazardous flooring condition posed
18 a constant risk of injury, and the absence of a secure mailbox system compromised the Plaintiffs
19 privacy and security.
20 WHEREFORE, Plaintiff prays for judgment as set forth below.
21
22 THIRD CAUSE OF ACTION
23 BREACH OF QUIET ENJOYMENT
24 (Against All Defendants & Does 1-10)
25 50. Plaintiff re-alleges and incorporates by reference all proceeding paragraphs as though fully set forth
26 herein.
27 51. Pursuant to California Civ. Code§ 1927, "[A]n agreement to let upon hire binds the letter to secure
28 to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons
11
1 lawfully claiming the same." To claim a breach of this covenant, the tenant must demonstrate
2 substantial interference with their use and enjoyment of the rental property. This interference goes
3 beyond mere inconveniences or annoyances.
4 52. Internet Interruptions (Utility Services Clause): The frequent and ongoing internet connectivity issues
5 significantly disrupted the Plaintiffs ability to use the property for his intended purpose as a full-time
6 student. This persistent problem, despite repeated complaints to the Defendants, constituted a
7 substantial interference with the Plaintiffs quiet enjoyment of the property. The inability to reliably
8 connect to the internet for academic purposes directly impeded the Plaintiffs essential use of the
9 rental property.
10 53. Mailbox Accessibility Issue (Access Clause): The Defendants' failure to provide a lockable mailbox,
11 as required by law, and suggesting the use of an external PO Box, substantially interfered with the
12 Plaintiffs quiet enjoyment of the property. The inability to securely receive personal mail at the
13 residence caused significant inconvenience and concern for privacy, directly impacting the Plaintiffs
14 enjoyment of the rental property. This lack of a secure and private means of receiving mail is a clear
15 deviation from the expected standards of residential living.
16 54. Unannounced Property Visits (Related to Privacy and Access Clauses): The Defendants made at least
17 two unannounced visits to the property, disrupting the Plaintiffs peaceful enjoyment and privacy.
18 One occurred while Plaintiff was present in his unit. The other occurred when Plaintiff was not home,
19 as evidenced by the lights being left on. These unannounced visits, without providing the legally
20 required notice, constituted a significant intrusion into the Plaintiffs personal space and quiet
21 enjoyment of the rental property. The Plaintiffs right to privacy and peaceful enjoyment was
22 continually compromised, illustrating a disregard for the contractual and statutory obligations owed
23 by the Defendants.
24 55. Inadequate Bed and Resulting Health Issues: The Plaintiff experienced significant discomfort and
25 health issues due to the inadequate bed provided as part of the rental furnishings. The mattress's poor
26 condition led to back pain for the Plaintiff, his issue not only affected the Plaintiffs physical health
27 but also disrupted his peaceful enjoyment and quiet possession of the property. Despite
28 acknowledging the problem, the Defendants failed to provide an adequate replacement, further
12
1 exacerbating the Plaintiffs distress and undermining the rental agreement's promise of a habitable
2 living environment.
3 WHEREFORE, Plaintiff prays for judgment as set forth below.
4
5 FOURTH CAUSE OF ACTION
6 VIOLATION OF CALIFORNIA'S TENANT RIGHT TO PRIVACY
7 (Against All Defendants & Does 1 - 10)
8 56. Plaintiff re-alleges and incorporates by reference all proceeding paragraphs as though fully set forth
9 herein.
10 57. According to Subdivision (a) of Civil Code§ 1954, a landlord may only enter a tenant's dwelling for
11 specifically defined reasons: the tenant has abandoned the property, an emergency, a court order, an
12 inspection required by certain state laws, or "(2) To make necessary or agreed repairs, decorations,
13 alterations or improvements, supply necessary or agreed services, or exhibit the dwelling unit to
14 prospective or actual purchasers, mortgagees, tenants, workers, or contractors or to make an
15 inspection pursuant to subdivision (f) of Section 1950.5."
16 58. In this case, the Defendants, Mrs. Ashley Cohen and Mr. Donny Cohen, have repeatedly violated
17 Plaintiff John Sciaraffa's right to privacy as protected under California law. The Defendants entered
18 the Plaintiff's rented property on at least two occasions without prior notice or consent, for reasons
19 not permitted under Civil Code§ 1954. Additionally, on December 3rd, the Plaintiff requested access
20 to a lockable mailbox for privacy reasons, as documented in an email correspondence (Exhibit A).
21 Despite this request, Mr. Cohen, a successful real estate agent and co-director of"The Cohen Brothers
22 Real Estate Group," refused to provide a lockable mailbox and insisted on delivering the mail, which
23 is untenable and intrusive.
24 59. Furthermore, the Defendants' actions have caused significant distress to the Plaintiff, a full-time
25 student reliant on a peaceful and secure living environment for his studies. The Defendants' disregard
26 for the Plaintiffs privacy rights and the legal obligations under Civil Code § 1954, especially given
27 Mr. Cohen's professional background in real estate, highlights a concerning power imbalance and
28 exploitation of the Plaintiff's lesser experience in real estate matters.
13
1 WHEREFORE, Plaintiff prays for judgment as set forth below.
2
3 FIFTH CAUSE OF ACTION
4 TRESPASS TO LAND
5 (Against All Defendants & Does 1 - 10)
6 60. Plaintiff re-alleges and incorporates by reference all proceeding paragraphs as though fully set forth
7 herein.
8 61. Generally, landowners and tenants have a right to exclude persons from trespassing on private
9 property; the right to exclude persons is a fundamental aspect of private property ownership. Ralphs
10 Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245 [225 Cal.Rptr.3d 305], as
11 modified (Nov. 6. 2017)
12 62. The elements of trespass are:
13 (1) the plaintiffs ownership or control of the property;
14 (2) the defendant's intentional, reckless, or negligent entry onto the property;
15 (3) lack of permission for the entry or acts in excess of permission;
16 (4) harm; and
17 (5) the defendant's conduct was a substantial factor in causing the harm. Id.
18 63. Plaintiff John Sciaraffa, through his lease agreement, had control and rightful possession of the "Cozy
19 Cottage" property located at 5107 Haskell, Encino, CA 91436. Despite this rightful possession,
20 Defendants Mrs. Ashley Cohen and Mr. Donny Cohen, alongside Does 1-10, breached Plaintiffs
21 exclusive possession through actions and policies that amounted to unauthorized entries and
22 impositions on the Plaintiffs use of the property.
23 64. A particularly egregious instance of trespass occurred when an unknown individual, later identified
24 in conjunction with the Defendants, entered Plaintiffs studio without permission. This incident,
25 marked by the unauthorized entry of the premises despite the doors being locked and curtains drawn,
26 directly contravenes the established legal requirements for trespass, demonstrating both an intentional
27 act of entry onto the property controlled by the Plaintiff and a clear absence of permission for such
28 entry.
14
1 65. Additionally, the Defendants imposed unreasonable restrictions on the Plaintiffs access to and use
2 of the property, including but not limited to, limiting laundry access and enforcing a demeaning
3 requirement to use a secondary entrance, effectively trespassing on the Plaintiff's rights to use and
4 enjoy the leased property fully. These acts, especially when considering the provision of a backdoor
5 entrance exclusively for the Plaintiff while others had unrestricted access, constitute acts in excess of
6 any permissions implicitly or explicitly granted to the Defendants under the guise of landlord
7 prerogatives.
8 66. The harm resulting from these trespasses is multifaceted, encompassing not only the immediate
9 distress and inconvenience occasioned by such intrusions but also the broader impact on the Plaintiffs
10 sense of security and privacy within his dwelling. These actions by the Defendants and their agents
11 were substantial factors in causing the harm experienced by the Plaintiff, directly infringing upon his
12 rights and wellbeing.
13 67. Therefore, through the Defendants' actions, all elements necessary to establish a claim for trespass
14 to land have been met. The unauthorized entries and restrictions imposed by the Defendants not only
15 violated the Plaintiffs possessory rights but also resulted in tangible harm, meriting redress under the
16 law. The sanctity of private possession and the fundamental right to exclude others from such
17 possession have been flagrantly disregarded by the Defendants, necessitating judicial intervention to
18 rectify the infringements suffered by the Plaintiff.
19 WHEREFORE, Plaintiff prays for judgment as set forth below.
20
21 SIXTH CAUSE OF ACTION
22 BREACH OF CONTRACT
23 (Against All Defendants & Does 1 - 10)
24 68. Plaintiff re-alleges and incorporates by reference all proceeding paragraphs as though fully set forth
25 herein.
26 69. Pursuant to CDC Firefighter v. Maldonado (2008) Cal.App.4th 1226, 1239, a cause of action for
27 breach of contract necessitates proof of the following elements: (1) existence of the contract; (2)
28
15
1 Plaintiffs performance or excuse for nonperformance; (3) Defendant's breach; (4) damages to
2 Plaintiff as a result of the breach.
3 70. On November 28, 2023, Plaintiff executed a lease agreement for the property located at 5107 Haskell,
4 Encino, CA 91436 (APN 2261-002-011), with Defendants Mrs. Ashley Cohen and Mr. Donny
5 Cohen. This legally binding contract, as evidenced by the signed lease document, established the
6 terms and conditions of the tenancy.
7 71. Plaintiff fulfilled his obligations under the lease by paying the agreed-upon rent and abiding by the
8 lease terms. He moved into the property on December 2, 2023, demonstrating his commitment and
9 adherence to the contract.
10 72. Furnishings (Section V): The lease agreement specifically stated that a Bedroom Set, Dining Room
11 Set, Kitchen Set, Living Room Set, Rugs and Carpets, Shelving Unit, and other items would be
12 provided. However, upon move-in, the Plaintiff found the mattress provided to be insufficient and
13 causing back pain, which the Defendants acknowledged but refused to replace, directing the Plaintiff
14 to purchase his own mattress. In addition, the unit does not have a smoke detector. This directly
15 contradicts the agreement to provide and maintain the specified furnishings in a condition fit for use.
16 (Exhibit "A")
17 73. Appliances (Section VI): The lease agreement specifically states that the Defendant landlords shall
18 provide the following appliances: Air Conditioner Equipment, Dishwasher, Dryer (for laundry),
19 Fan(s), Garbage Disposal, Hot Water Heater, Lighting Fixtures, Microwave, Oven, Refrigerator,
20 Smoke Detectors, Stove, Thermostats and Controls, Washer (for laundry), all of which shall be on
21 the Premises and functional upon the move-in. Plaintiffs unit does not have central heating nor does
22 it have an accessible laundry. Plaintiff suffers from a variety of health problems and expected a
23 working heater, as advertised. Furthermore, Mrs. Ashley Cohen and Mr. Donny Cohen informed the
24 Plaintiff that he would only have access to the laundry certain days per week. Limited access to the
25 laundry room in their house is a gross departure from the claim of laundry room access, and a clear
26 breach. (Exhibit "A")
27 74. Utilities and Services (Section XXV): The Defendants breached the agreement by failing to provide
28 reliable Internet and WiFi services, essential for the Plaintiffs studies. This deficiency severely
16
1 hindered the Plaintiffs ability to fulfill his academic responsibilities as a full-time student. Plaintiff
2 was forced to purchase his own WiFi access out of necessity.
3 75. Access (Section XVII): The Defendants did not provide the Plaintiff with a lockable mailbox, which
4 is a clear violation of the agreement to provide access forms such as keys, fobs, cards, or keyless
5 entry devices. The Plaintiffs request for a lockable mailbox was met with a suggestion to use an
6 external PO Box, which is not in line with the promised provision of access and infringes upon the
7 Plaintiff's privacy and convenience. (Exhibit "A")
8 76. As a direct consequence of these breaches, the Plaintiff has suffered considerable distress and
9 inconvenience, impacting his daily living and academic performance. The inadequate mattress
10 exacerbated his back pain. Plaintiffs health conditions living at the residence, evidenced by his
11 discharge papers from UCLA Healthcare dated December 12, 2023, were exacerbated by Defendants'
12 ongoing egregious actions and behavior. The lack of reliable internet connection and the denial of a
13 lockable mailbox have infringed upon his privacy and personal security, causing further distress.
14 (Exhibit "G")
15 77. The breaches committed by the Defendants are not trivial but go to the very heart of the contract. The
16 failure to provide a habitable living environment, as promised in the lease, constitutes a substantial
17 breach, justifying the Plaintiffs claim for damages. Under California law, a landlord is obliged to
18 provide a living environment that meets basic habitability standards, including proper furnishings and
19 functional appliances as explicitly agreed upon in the lease. The denial of a lockable mailbox further
20 constitutes a breach of the Plaintiffs right to privacy and security, as guaranteed in the lease
21 agreement.
22 78. Given Mr. Donny Cohen's professional background as a licensed real estate agent, his awareness of
23 these standards and responsibilities is implicit. His conduct not only breached the contractual
24 agreement but also suggests a disregard for the ethical and professional standards expected in his
25 field. This raises concerns about the coercive nature of his actions, exploiting the Plaintiffs lesser
26 experience in real estate matters. His professional experience implies a higher level of knowledge,
27 making his failure to meet these obligations particularly reprehensible and suggestive of bad faith.
28
17
1 79. The Plaintiffs reliance on the Defendants' promises, as stipulated in the lease agreement, was both
2 reasonable and foreseeable, making the Defendants' breaches particularly egregious. The Restatement
3 (2d) of Contracts §90 supports the Plaintiffs position, as the Defendants should have reasonably
4 expected their promises to induce specific actions from the Plaintiff, namely entering into and abiding
5 by the lease agreement.
6 WHEREFORE, Plaintiff prays for judgment as set forth below.
7
8 SEVENTH CAUSE OF ACTION
9 BREACH OF IMPLIED DUTY OF GOOD FAITH AND FAIR DEALING
10 (Against All Defendants & Does 1-10)
11 80. Plaintiff re-alleges and incorporates by reference all proceeding paragraphs as though fully set forth
12 herein.
13 81. The Court in Automatic Vending Co. v. Wisdom (1960) 12 Cal. App.2d 354,358 held that "[W]here
14 a contract confers on one party a discretionary power affecting the rights of the other, a duty is
15 imposed to exercise that discretion in good faith and in accordance with fair dealing. (Citations
16 omitted)".
17 82. "When one party to a contract retains the unilateral right to amend the agreement governing the
18 parties' relationship, its exercise of that right is constrained by the covenant of good faith and fair
19 dealing which precludes amendments that operate retroactively to impair accrued rights." (Cobb v.
20 Ironwood Country Club (2015) 233 Cal.App.4th 960,963 [183 Cal.Rptr.3d282].)
21 83. The elements for breach of implied duty of good faith (CACI No. 325):
22 a. That Plaintiff and Defendant entered into a contract;
23 b. That Plaintiff did all, or substantially all of the significant things that the contract required
24 to do or was excused;
25 c. That all conditions required for Defendant's performance had occurred or were excused;
26 d. That Defendant's conduct prevented plaintiff from receiving the benefits under the
27 contract;
28 e. That by doing so, Defendant did not act fairly and in good faith; and
18
1 f. That Plaintiff was harmed by Defendant's conduct.
2 84. In the instant case, the contractual relationship between Plaintiff John Sciaraffa and Defendants Mrs.
3 Ashley Cohen and Mr. Donny Cohen commenced on November 28, 2023, with the lease of the "Cozy
4 Cottage" located at 5107 Haskell, Encino, CA. The lease, set to terminate on November 30, 2024,
5 stipulated certain amenities and conditions that were fundamental to the Plaintiffs consent to the
6 agreement, including but not limited to, the provision of a furnished living space, Wi-Fi, and other
7 advertised amenities.
8 85. Plaintiff fulfilled all contractual obligations, including the payment of a substantial security deposit
9 of $11,000 and adhering to the terms of the lease. Despite this, Defendants' conduct significantly
10 impaired the Plaintiffs ability to enjoy the benefits of the contract. This impairment is evidenced by
11 several actions and inactions by the Defendants, including but not limited to, the lack of central
12 heating, inadequate furnishings leading to physical discomfort, poor internet connectivity essential
13 for the Plaintiffs academic pursuits, restricted access to laundry facilities, and a lack of a secure
14 mailbox.
15 86. These actions, coupled with Defendant Donny Cohen's dismissive attitude towards the handling of
16 the security deposit and the provision of living conditions significantly below those advertised,
17 constitute a failure to act fairly and in good faith. Such conduct prevented the Plaintiff from receiving
18 the benefits under the contract and inflicted considerable harm, both physically and emotionally. This
19 harm is exacerbated by the fact that Plaintiff is a full-time student, for whom stable living conditions
20 are paramount to academic and personal well-being.
21 87. The conduct of the Defendants, particularly in light of Defendant Donny Cohen's experience and
22 reputation in the real estate industry, falls short of the standards expected under the covenant of good
23 faith and fair dealing. It is clear that the Defendants failed to exercise their discretionary power in a
24 manner that would ensure the Plaintiff could enjoy the premises and amenities promised under the
25 lease.
26 88. Therefore, Plaintiff seeks redress for the breach of the implied duty of good faith and fair dealing,
27 highlighting the disparity between the promised and delivered conditions of the rental property, the
28 impact of this disparity on the Plaintiffs living conditions, and the resultant breach of contract. This
19
1 cause of action stands on the premise that every contract implies a covenant of good faith and fair
2 dealing in its performance and enforcement, a covenant that has been undeniably violated by the
3 Defendants in this instance.
4 WHEREFORE, Plaintiff prays for judgment as set forth below.
5
6 EIGHTH CAUSE OF ACTION
7 RESTITUTION - UNJUST ENRICHMENT
8 (Against All Defendants & Does 1 - 10)
9 89. Plaintiff re-alleges and incorporates by reference all proceeding paragraphs as though fully set forth
10 herein.
11 90. "A person who has been unjustly enriched at the expense of another is required to make restitution to
12
Preview
1 GARY S SAUNDERS (SBN 144385) SAUNDERS & ASSOCIATES, APC 2 610 NEWPORT CENTER DR. #250 3 NEWPORT BEACH, CA 92660-2517 Telephone: (714) 583-6443 4 Email: gary@saundersapc.com 5 Attorney for Plaintiff, 6 John Sciaraffa 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF LOS ANGELES 10 11 JOHN SCIARAFFA, an individual, CASE NO: PLAINTIFF'S VERIFIED COMPLAINT FOR 12 Plaintiffs, 1. VIOLATION OF SECURITY DEPOSIT 13 V. REGULATIONS - § 1950.5(c)(l); 2. BREACH OF IMPLIED WARRANTY OF 14 HABITABILITY; DONNY COHEN, an individual; ASHLEY 3. BREACH OF QUIET ENJOYMENT; 15 COHEN, an individual; and DOES 1-20, 4. VIOLATION OF CALIFORNIA'S TENANT inclusive, 16 RIGHT TO PRIVACY; 5. TRESPASS TO LAND; 17 Defendants. 6. BREACH OF CONTRACT; 18 7. BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING; 19 8. RESTITUTION; 9. FRAUDULENT MISREPRESENTATION & 20 DECEIT; 21 10. FRAUDULENT INDUCEMENT; 11. PROMISSORY FRAUD; 22 12. NEGLIGENCE; 13. HARASSMENT; 23 14. VIOLATION OF B&P CODE§ 17200; 24 15. BREACH OF B&P CODE§ 10177 (f) & G); 16. INTENTIONAL INFLICTION OF 25 EMOTIONAL DISTRESS; 17. DECLARATORY RELIEF. 26 27 JURY TRIAL DEMANDED 28 1 COMES NOW, John Sciaraffa (hereinafter "John" or "Plaintiff') by and through his counsel 2 files his Verified Complaint and hereby alleges as follows: 3 4 PARTIES 5 1. Plaintiff John Sciaraffa, also known as "AngeI" is, and at all times relevant to this action, an individual 6 who resides at 5107 Haskell, Encino, CA 91436. Plaintiff is a full-time student and at all times 7 pertinent to this case, was a tenant at the property in question, owned and managed by the Defendants. 8 2. Plaintiff is informed and believes and thereon alleges that, at all times mentioned herein, Defendant 9 Donny Cohen ("Defendants") who, at all times relevant to this action, resides in Encino, County of 10 Los Angeles, California, 91436. Defendant Donny is married to Defendant Ashley. Defendant Donny 11 is California currently holds a restricted real estate (license DRE# 01297608), pursuant to a tribunal 12 before the Bureau of Real Estate, State of California, Case No. H-39209 LA, when his license was 13 revoked on or about February 12, 2014, following a conviction for Penal Code 484 A (Petty theft). 14 On or about April 29, 2015, Respondent Donny was allowed to apply for a restricted real estate 15 salesperson license pursuant to Business and Professions Code 10156.5. 16 3. Plaintiff is informed and believes and thereon alleges that, at all times mentioned herein, Defendant 17 Ashley Cohen ("Defendant Ashley") who, at all times relevant to this action, resides in Encino, 18 County of Los Angeles, California, 91436. Defendant Donny is married to Defendant Donny. 19 4. Plaintiff is ignorant of the true names and capacities of Defendants DOES 1-10 inclusive ("DOES") 20 and therefore sues these Defendants by such fictitious names. Plaintiff will amend this complaint to 21 allege DOES' true names and capacities when they are ascertained. Each of the Defendants 22 designated herein as a fictitiously named Defendant is, and in some manner, was responsible for 23 events and happenings referred to herein either contractually or tortuously. 24 5. Plaintiff is informed and believes, and upon this basis alleges, Defendants and each of them are, and 25 at all times herein were, the agents, joint venturers, officers, members, representatives, consultants, 26 or employees of their co-Defendants and in committing the acts herein alleged, were acting within 27 the scope of such affiliation with knowledge, permission, consent, or subsequent ratification of their 28 co-Defendants. 2 1 JURISDICTION AND VENUE 2 6. The California Superior Court has jurisdiction over this action pursuant to California Constitution 3 Article VI §10 and Code of Civil Procedure§ 410.10 because Defendants engaged in business in the 4 State of California and the acts of wrongdoing alleged in this complaint occurred in California. 5 Defendants have more than "sufficient minimum contacts" within the State of California such that 6 this Court's exercise of personal jurisdiction over Defendants herein "does not offend the traditional 7 notions of fair play and substantial justice." 8 7. Venue is proper in this Court pursuant to Code of Civil Procedure § 392(a) because the subject 9 property is located within the jurisdictional region of this Court. Additionally, Defendants herein 10 purposefully directed their activities to the State of California and consummated a transaction with a 11 resident of the State of California. As a result, Defendants caused an event or events to occur in 12 California, and more particularly in the County of Los Angeles out of which this action arises and 13 which forms the basis of this action. 14 15 GENERAL AND FACTUAL ALLEGATIONS 16 8. On or about November 28, 2023, Plaintiff John Sciaraffa, a full-time student, entered into a lease 17 agreement (Exhibit "A") for a rental property advertised as a furnished "Cozy Cottage" located at 18 5107 Haskell, Encino, CA 91436 for $2,750.00 per month. The lease term began on November 28, 19 2023, and ends on November 30, 2024. This lease was entered into with the Defendant landlords, 20 Mrs. Ashley Cohen and Mr. Donny Cohen. (Exhibit "A") 21 9. Sometime in the weeks preceding the agreement, John found the "cottage" online and it appeared to 22 be an appealing living situation for Plaintiff, particularly given that it is furnished, comes with Wi- 23 Fi, and offeres other advertised amenities. (Exhibit "B") 24 10. Defendants Mrs. Ashley Cohen and Mr. Donny Cohen, the landlords of the 5107 Haskell, Encino, 25 CA 91436 (APN 2261-002-011), also live on the lot in the main single-family home unit. Purchased 26 in 2015 for approximately $895,000, it is now worth nearly twice as much, at $1, 7313,25 .00. (Exhibit 21 "C") 28 3 1 11. Furthermore, it is listed as a LARl Single Family Residence. This type of zoning does not appear to 2 permit the use of rental units. Even if renting to tenants has been permitted, it does not appear the 3 building of additional units in the backyard for additional dwellings is permitted under the current 4 zoning. (Exhibit "C") 5 12. The dramatic increase in price is likely not due to luck; Defendant Donny Cohen is notably involved 6 and successful in the real estate industry. Alongside his brother Abraham Cohen, Defendant Donny 7 Cohen is a California-licensed relator (DRE# 01297608) and Director of The Cohen Brothers Real 8 Estate Group. The company is described on Donny's Realtor.com listing (Exhibit "D") as: 9 a. "The Cohen Brothers Real Estate Group is dedicated to providing innovative, 10 exceptional, and personalized services ofonly the highest quality. The real estate business 11 is forever growing and changing and we make it a mission to constantly grow and adapt 12 with it. We are constantly learning and use each new skill to provide our clients with the 13 best service. We understand that each home and home owner is different and unique. It is 14 our mission to provide you with the skills and resources specific to you and your family, 15 all the while adhering to the highest standard ofintegrity and ethical business practices. 16 With a law degree, a history in construction, and a previous successful mortgage 17 brokerage company, Abraham and Donny Cohen have a combined experience of 30+ 18 years in real estate that expands across every area of the market; well beyond simply 19 making an offer on a house. This allows us to be a sounding boardfor our clients in every 20 aspect of the deal, from contracts and negotiations, to home improvement, to loans, and 21 everything in between. " 22 13. It should be noted that the text in the aforementioned sales pitch is misleading, in that Defendant 23 Donny is not in possession of a law degree, rather his brother, Abraham Cohen, hold the degree. 24 14. According to his personal biography on The Cohen Brothers Real Estate Group webpage (Exhibit 25 "E"): 26 a. "Donny Cohen is a highly experienced and respected Real Estate professional with over 27 20 years of industry experience. He has a background in Home Mortgages and Home 28 Development and has been a part of the Encino, Sherman Oaks, and Studio City 4 1 communities for 40 years. Donny brings a unique perspective to his work. He has a deep 2 understanding of the Real Estate market representing clients across the Greater Los 3 Angeles area, with an emphasis on helping families who have inherited Real Estate 4 through Trusts, Wills, or Probate. 5 With over $1 billion in career sales and a reputation for using high-tech marketing 6 strategies and sharp negotiating skills, Donny is dedicated to providing the finest Real 7 Estate services available based on the highest standards of ethics, value, and 8 commitment to client care. 9 As a seasoned Realtor and experienced Real Estate Investor, Donny is well-versed in 10 the nuances of Real Estate transactions. He is a master at overcoming obstacles during 11 escrow and devising solutions that satisfy all parties and is a true believer in the American 12 Dream of homeownership. 13 He is passionate about helping his clients succeed and always seeks new and innovative 14 ways to ensure their success. 15 In his personal life, Donny is an avid fitness enthusiast and enjoys spending time with his 16 family, trying new restaurants, and traveling. He also has a love for knowledge and is 17 always seeking new ways to improve and grow both personally and professionally. 18 15. As stated above in ,-r 2, Defendant Donny's license is currently limited, "as a result of an 19 administrative action rendered by the Department of Real Estate. A restricted license is a probationary 20 type license." (Exhibit "F") 21 16. Shortly after moving in on December 2, 2023, the Plaintiff encountered several issues with the 22 property. 23 17. Upon agreeing to the lease, the Plaintiff was required to pay a substantial security deposit of$11,000, 24 equating to four months' rent. This requirement, notably higher than typical rental agreements, placed 25 a considerable financial burden on the Plaintiff, a full-time student. (Pages 2 & 9 of the Lease, 26 Exhibit "A"). 27 18. On November 26, 2023, Plaintiff asked if the security deposit would be placed in an interest-bearing 28 account; Mr. Cohen's response was dismissive. He stated, "I'm not a bank, dude!" Beyond the 5 1 condescending tone of the remark, it suggested a casual approach to a significant financial obligation 2 and raised questions about the proper handling of the security deposit as per legal requirements. This 3 manner of speech made Plaintiff uncomfortable, and was amongst the first of many significant 4 transgressions. 5 19. The "cottage," while initially appealing, had significant deficiencies. The Plaintiff soon discovered 6 the unit lacked central heating, a critical feature for comfort and safety considering. The issue with 7 the heating was compounded by the fact that the cottage was also poorly insulated, leading to 8 uncomfortable and potentially unsafe living conditions. 9 20. Plaintiff encountered issues with the furnishings as well, in particular, the mattress provided by the 10 Defendants. It was unsuitable and caused back pain, a significant concern given the Plaintift's need 11 for proper rest as a student. Plaintiff expressed his discomfort and requested a resolution, but the 12 Defendants advised him to purchase his own replacement. 13 21. The Plaintiff discovered a hazardous condition with the flooring, specifically a substantial crack near 14 the toilet area. This condition presents a safety hazard and indicates a failure to maintain the premises 15 in a state of good repair, as mandated by law. 16 22. Another critical issue was the internet connectivity. As a student, the Plaintiff heavily relied on stable 17 internet access for his studies. When John told the Defendants about the issue, they provided the 18 home WiFi, however, this internet service was unreliable at best, making it challenging for him to 19 fulfill his academic obligations. This situation was also communicated to the Defendants, but no 20 effective solution was provided. 21 23. Shortly after moving in, the Plaintiff discovered that his access to the laundry facilities was restricted. 22 The Defendants informed him that he would only have access to the laundry on certain days of the 23 week. This limitation was not only inconvenient but also contrary to the Plaintiffs understanding of 24 the lease terms, which did not specify such restrictions. 25 24. The Plaintiff also faced issues with accessing his mail. He was denied access to a lockable mailbox, 26 an essential aspect of privacy and security for any tenant. Instead, the Defendants insisted on 27 delivering the mail to the Plaintiffs door, a solution that was not only impractical but also invaded 28 the Plaintiffs privacy. (Exhibit "H") 6 1 25. When asked, Defendants suggested Plaintiff could use their PO Box five miles away at 4335 Van 2 Nuys Boulevard Sherman Oaks 91403. (Exhibit "I") This issue was particularly troubling for 3 Plaintiff, given the importance of receiving mail securely and promptly. Plaintiff was unable to 4 receive any mail, including a hard copy of his medical insurance card. It made life as a student 5 difficult as well, as Plaintiff was forced to resort to traveling long distance and Uber rides to retrieve 6 books and supplies. 7 26. John is subjected to a demeaning restriction by the Defendants, specifically being prohibited from 8 using the front gate of his rented "Cozy Cottage." Instead, he is compelled to use the back entrance, 9 which is not only inconvenient but also causes him embarrassment and discomfort. Thie restriction 10 is compounded by the fact that many of Defendants' neighbors were given the electronic passcode, 11 while Plaintiff, a lawful tenant, was restricted. This restriction on his access to the property's 12 traditional entrance infringes upon his reasonable expectations as a tenant and undermines his dignity. 13 27. Plaintiff has also been subjected to ongoing harassment, notably through Defendant Donny Cohen's 14 unwarranted surveillance on social media. 15 28. This stalking behavior adds to the sense of harassment, which is further exacerbated by a distressing 16 incident where a marijuana joint was found in Plaintifrs private space, particularly concerning given 17 his health issues and non-smoking status. The marijuana joint, though not smoked by Plaintiff given 18 his health conditions, was presumably left there by a guest. 19 29. In another event, an unknown Caucasian male entered Plaintiff's studio without his permission or 20 notice. The door was mistakenly unlocked, but the door was fully shut and the curtains we closed. 21 The situation escalated to a police interaction, where Defendant Cohen's conduct painted the Plaintiff 22 unfavorably. 23 30. Throughout his tenancy thus far, Plaintiff made numerous attempts to communicate with the 24 Defendants about the various issues he faced. However, these efforts were met with inadequate 25 responses or outright neglect, as evidenced by the email correspondences and documented complaints 26 (Exhibit "I"). 27 31. Plaintiff has heart problems and heart palpitations. The ongomg stress endured by Plaintiff 28 exacerbated these health issues. 7 1 32. The series of events and the Defendants' responses---or lack thereof-paint a picture of a rental 2 agreement that was not honored as per the terms set out in the lease and the advertised conditions of 3 the property. The Defendants' failure to address the critical issues raised by the Plaintiff not only 4 breached the lease agreement but also impacted the Plaintiffs living conditions and well-being 5 significantly. 6 33. Beyond the unlawful deposit and living conditions, Plaintiff incurred costs of paying for his own 7 internet. Despite being a student, Plaintiff endured stress and wasted valuable time urgently finding 8 a new place to live. 9 10 FIRST CAUSE OF ACTION 11 VIOLATION OF SECURITY DEPOSIT REGULATIONS - § 1950.S(c)(l) 12 (Against All Defendants & Does 1-10) 13 34. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth 14 herein. 15 35. "Cal. Civ. Code§ 1950.5(c)(l) Except as provided in paragraphs (2), (3), or (4), a landlord may not 16 demand or receive security, however denominated, in an amount or value in excess of an amount 17 equal to two months' rent, in the case of unfurnished residential property, and an amount equal to 18 three months' rent, in the case of furnished residential property, in addition to any rent for the first 19 month paid on or before initial occupancy. 20 36. In addition to this regulation, the California legislature's public policy is clearly against such 21 egregious and nearly extortionate deposits. On October 11, 2024, Governor Gavin Newsom signed 22 Assembly Bill 12, which limits security deposits for rental properties to one month's rent. Though 23 scheduled to take effect on July 1, 2024, this clearly indicates the spirit of California's public policy 24 on residential security deposits. 25 37. Excessive Security Deposit 26 a. Page 2 of the Final Lease agreement states "XIV. SECURITY DEPOSIT. A security 27 deposit in the amount of$11,000.00 shall be required from the Tenant(s) at the execution 28 of this Agreement for the faithful performance of all its terms and conditions ('Security 8 1 Deposit'). The Security Deposit shall be returned to the Tenants) within O days after this 2 Agreement has terminated. The Security Deposit shall be returned in full, and in the 3 manner prescribed by state and local laws, upon the end or termination of the Lease Term, 4 unless the Landlord intends on imposing a claim on the Security Deposit for any damages. 5 The Security Deposit shall not be credited towards Rent unless the Landlord gives their 6 written consent." (Exhibit "A") 7 b. Furthermore, page 9 of the Final Lease agreement goes on to define the terms of the 8 security deposit, in a handwritten addition, as "The 4 month security deposit is exactly 9 that, a deposit: This deposit is to be returned when this lease ends on good terms without 10 breaking this lease early and with no damage to the unit or the contents inside this unit. If 11 there are damages, the security deposit will be used to fix the unit or its contents. The 12 remaining deposit will be returned to the renter." (Exhibit "A") 13 38. Inappropriate Use and Handling of Security Deposit 14 a. On November 26th, Plaintiff asked Donny Cohen, a real estate agent, if his security 15 deposit would be placed into an interest-bearing account. His response was, "I'm not a 16 bank, dude!" He also indicated that he would deduct from the security deposit at the lease's 17 end for "normal wear and tear." 18 b. In the original draft of the lease, Mr. Cohen added a "1st month's rent" line item to the 19 page, which included the total costs ofrenting the property. However, this line item should 20 not have existed, as the lease itself declares that Plaintiff is paying 6 months' rent upfront. 21 c. On November 27th, Mr. Cohen stated that the security deposit would "probably" be kept 22 in one of Mrs. Cohen's bank accounts. On the same day, he clarified that normal "wear 23 and tear" would not constitute legal grounds for retaining the security deposit after the 24 lease term. An updated lease was sent to Plaintiff on this day and was reviewed by another 25 real estate agent, Sharon Gavin. 26 39. The Plaintiff, being less experienced in real estate matters, was at a clear disadvantage. The 27 Defendants, particularly Mr. Cohen, exploited this situation. Although California landlords are 28 generally not required to place security deposits in interest-bearing accounts, given Donny's 9 1 background in real estate, such a request was reasonable. Donny's personal bio on his company 2 webpage states, "Donny is dedicated to providing the finest Real Estate services available based on 3 the highest standards of ethics, values, and commitment to client care." It goes on to mention his 4 expertise in real estate transactions and his belief in the American Dream of homeownership. 5 Therefore, the student tenant, residing in a "cottage" in Donny's backyard, deserves the same respect 6 Donny claims to give his clients, not a dismissive "I'm not a bank, dude!" comment, which is, quite 7 frankly, repugnantly condescending coming from a person of his status. 8 40. The excessive security deposit, coupled with Mr. Cohen's dismissive attitude and intentions for its 9 use, highlights a significant breach of trust and legal duty. 10 WHEREFORE, Plaintiff prays for judgment as set forth below. 11 12 SECOND CAUSE OF ACTION 13 BREACH OF IMPLIED WARRANTY OF HABITABILITY 14 (Against All Defendants & Does 1-10) 15 41. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth 16 herein. 17 42. Pursuant to California Code, Civil Code § 1941.1, a dwelling is deemed untenantable if it 18 substantially lacks several standard characteristics, including adequate heating facilities, properly 19 maintained floors, stairways, and railings, and a locking mail receptacle for each residential unit. 20 43. Heating Facilities (Subsection 4): The property at 5107 Haskell, Encino, CA, was devoid of central 21 heating, crucial for maintaining a habitable temperature during colder periods. This fact is especially 22 true considering the unit's poor insulation. This is evidenced by the large gap under his front door, 23 which would routinely flood whenever rain occurred. This deficiency not only compromised the 24 comfort of the Plaintiff but also posed a health risk, violating the legal requirement for heating 25 facilities to be in good working order. 26 44. The absence of adequate heating facilities is a clear violation of California Civil Code§ 1941.1(4). 27 The provision of a habitable environment, including necessary heating, is a fundamental landlord 28 1 obligation. This breach is significant, as it directly affects the habitability and safety of the dwelling, 2 making the environment untenable and hazardous. 3 45. Floors, Stairways, and Railings (Subsection 8): The Plaintiff discovered a hazardous condition with 4 the flooring, specifically a substantial crack near the toilet area. This condition presents a safety 5 hazard and indicates a failure to maintain the premises in a state of good repair, as mandated by law. 6 46. Under Cal. Civ. Code§ 1941.1(8), landlords are obligated to maintain floors, stairways, and railings 7 in good repair. The existence of such a hazardous condition not only poses a risk of physical injury 8 but also reflects the neglect of the Defendants in upholding the property's structural integrity. 9 47. Locking Mail Receptacle (Subsection 9): The Defendants failed to provide a lockable mailbox, a 10 requirement stipulated for residential units. This omission infringed upon the Plaintiffs privacy and 11 security, a critical aspect of the dwelling's habitability. 12 48. The denial of a secure mail receptacle contravenes the specific requirement set forth in Civ Code § 13 1941.1(9) and Section 17958.3 of the Health and Safety Code. This breach not only impacts the 14 Plaintiffs privacy but also signifies a failure to adhere to statutory standards for residential 15 habitability. 16 49. The Plaintiff suffered considerable distress due to these breaches. The lack of heating led to 17 uncomfortable and potentially unhealthy living conditions. The hazardous flooring condition posed 18 a constant risk of injury, and the absence of a secure mailbox system compromised the Plaintiffs 19 privacy and security. 20 WHEREFORE, Plaintiff prays for judgment as set forth below. 21 22 THIRD CAUSE OF ACTION 23 BREACH OF QUIET ENJOYMENT 24 (Against All Defendants & Does 1-10) 25 50. Plaintiff re-alleges and incorporates by reference all proceeding paragraphs as though fully set forth 26 herein. 27 51. Pursuant to California Civ. Code§ 1927, "[A]n agreement to let upon hire binds the letter to secure 28 to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons 11 1 lawfully claiming the same." To claim a breach of this covenant, the tenant must demonstrate 2 substantial interference with their use and enjoyment of the rental property. This interference goes 3 beyond mere inconveniences or annoyances. 4 52. Internet Interruptions (Utility Services Clause): The frequent and ongoing internet connectivity issues 5 significantly disrupted the Plaintiffs ability to use the property for his intended purpose as a full-time 6 student. This persistent problem, despite repeated complaints to the Defendants, constituted a 7 substantial interference with the Plaintiffs quiet enjoyment of the property. The inability to reliably 8 connect to the internet for academic purposes directly impeded the Plaintiffs essential use of the 9 rental property. 10 53. Mailbox Accessibility Issue (Access Clause): The Defendants' failure to provide a lockable mailbox, 11 as required by law, and suggesting the use of an external PO Box, substantially interfered with the 12 Plaintiffs quiet enjoyment of the property. The inability to securely receive personal mail at the 13 residence caused significant inconvenience and concern for privacy, directly impacting the Plaintiffs 14 enjoyment of the rental property. This lack of a secure and private means of receiving mail is a clear 15 deviation from the expected standards of residential living. 16 54. Unannounced Property Visits (Related to Privacy and Access Clauses): The Defendants made at least 17 two unannounced visits to the property, disrupting the Plaintiffs peaceful enjoyment and privacy. 18 One occurred while Plaintiff was present in his unit. The other occurred when Plaintiff was not home, 19 as evidenced by the lights being left on. These unannounced visits, without providing the legally 20 required notice, constituted a significant intrusion into the Plaintiffs personal space and quiet 21 enjoyment of the rental property. The Plaintiffs right to privacy and peaceful enjoyment was 22 continually compromised, illustrating a disregard for the contractual and statutory obligations owed 23 by the Defendants. 24 55. Inadequate Bed and Resulting Health Issues: The Plaintiff experienced significant discomfort and 25 health issues due to the inadequate bed provided as part of the rental furnishings. The mattress's poor 26 condition led to back pain for the Plaintiff, his issue not only affected the Plaintiffs physical health 27 but also disrupted his peaceful enjoyment and quiet possession of the property. Despite 28 acknowledging the problem, the Defendants failed to provide an adequate replacement, further 12 1 exacerbating the Plaintiffs distress and undermining the rental agreement's promise of a habitable 2 living environment. 3 WHEREFORE, Plaintiff prays for judgment as set forth below. 4 5 FOURTH CAUSE OF ACTION 6 VIOLATION OF CALIFORNIA'S TENANT RIGHT TO PRIVACY 7 (Against All Defendants & Does 1 - 10) 8 56. Plaintiff re-alleges and incorporates by reference all proceeding paragraphs as though fully set forth 9 herein. 10 57. According to Subdivision (a) of Civil Code§ 1954, a landlord may only enter a tenant's dwelling for 11 specifically defined reasons: the tenant has abandoned the property, an emergency, a court order, an 12 inspection required by certain state laws, or "(2) To make necessary or agreed repairs, decorations, 13 alterations or improvements, supply necessary or agreed services, or exhibit the dwelling unit to 14 prospective or actual purchasers, mortgagees, tenants, workers, or contractors or to make an 15 inspection pursuant to subdivision (f) of Section 1950.5." 16 58. In this case, the Defendants, Mrs. Ashley Cohen and Mr. Donny Cohen, have repeatedly violated 17 Plaintiff John Sciaraffa's right to privacy as protected under California law. The Defendants entered 18 the Plaintiff's rented property on at least two occasions without prior notice or consent, for reasons 19 not permitted under Civil Code§ 1954. Additionally, on December 3rd, the Plaintiff requested access 20 to a lockable mailbox for privacy reasons, as documented in an email correspondence (Exhibit A). 21 Despite this request, Mr. Cohen, a successful real estate agent and co-director of"The Cohen Brothers 22 Real Estate Group," refused to provide a lockable mailbox and insisted on delivering the mail, which 23 is untenable and intrusive. 24 59. Furthermore, the Defendants' actions have caused significant distress to the Plaintiff, a full-time 25 student reliant on a peaceful and secure living environment for his studies. The Defendants' disregard 26 for the Plaintiffs privacy rights and the legal obligations under Civil Code § 1954, especially given 27 Mr. Cohen's professional background in real estate, highlights a concerning power imbalance and 28 exploitation of the Plaintiff's lesser experience in real estate matters. 13 1 WHEREFORE, Plaintiff prays for judgment as set forth below. 2 3 FIFTH CAUSE OF ACTION 4 TRESPASS TO LAND 5 (Against All Defendants & Does 1 - 10) 6 60. Plaintiff re-alleges and incorporates by reference all proceeding paragraphs as though fully set forth 7 herein. 8 61. Generally, landowners and tenants have a right to exclude persons from trespassing on private 9 property; the right to exclude persons is a fundamental aspect of private property ownership. Ralphs 10 Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245 [225 Cal.Rptr.3d 305], as 11 modified (Nov. 6. 2017) 12 62. The elements of trespass are: 13 (1) the plaintiffs ownership or control of the property; 14 (2) the defendant's intentional, reckless, or negligent entry onto the property; 15 (3) lack of permission for the entry or acts in excess of permission; 16 (4) harm; and 17 (5) the defendant's conduct was a substantial factor in causing the harm. Id. 18 63. Plaintiff John Sciaraffa, through his lease agreement, had control and rightful possession of the "Cozy 19 Cottage" property located at 5107 Haskell, Encino, CA 91436. Despite this rightful possession, 20 Defendants Mrs. Ashley Cohen and Mr. Donny Cohen, alongside Does 1-10, breached Plaintiffs 21 exclusive possession through actions and policies that amounted to unauthorized entries and 22 impositions on the Plaintiffs use of the property. 23 64. A particularly egregious instance of trespass occurred when an unknown individual, later identified 24 in conjunction with the Defendants, entered Plaintiffs studio without permission. This incident, 25 marked by the unauthorized entry of the premises despite the doors being locked and curtains drawn, 26 directly contravenes the established legal requirements for trespass, demonstrating both an intentional 27 act of entry onto the property controlled by the Plaintiff and a clear absence of permission for such 28 entry. 14 1 65. Additionally, the Defendants imposed unreasonable restrictions on the Plaintiffs access to and use 2 of the property, including but not limited to, limiting laundry access and enforcing a demeaning 3 requirement to use a secondary entrance, effectively trespassing on the Plaintiff's rights to use and 4 enjoy the leased property fully. These acts, especially when considering the provision of a backdoor 5 entrance exclusively for the Plaintiff while others had unrestricted access, constitute acts in excess of 6 any permissions implicitly or explicitly granted to the Defendants under the guise of landlord 7 prerogatives. 8 66. The harm resulting from these trespasses is multifaceted, encompassing not only the immediate 9 distress and inconvenience occasioned by such intrusions but also the broader impact on the Plaintiffs 10 sense of security and privacy within his dwelling. These actions by the Defendants and their agents 11 were substantial factors in causing the harm experienced by the Plaintiff, directly infringing upon his 12 rights and wellbeing. 13 67. Therefore, through the Defendants' actions, all elements necessary to establish a claim for trespass 14 to land have been met. The unauthorized entries and restrictions imposed by the Defendants not only 15 violated the Plaintiffs possessory rights but also resulted in tangible harm, meriting redress under the 16 law. The sanctity of private possession and the fundamental right to exclude others from such 17 possession have been flagrantly disregarded by the Defendants, necessitating judicial intervention to 18 rectify the infringements suffered by the Plaintiff. 19 WHEREFORE, Plaintiff prays for judgment as set forth below. 20 21 SIXTH CAUSE OF ACTION 22 BREACH OF CONTRACT 23 (Against All Defendants & Does 1 - 10) 24 68. Plaintiff re-alleges and incorporates by reference all proceeding paragraphs as though fully set forth 25 herein. 26 69. Pursuant to CDC Firefighter v. Maldonado (2008) Cal.App.4th 1226, 1239, a cause of action for 27 breach of contract necessitates proof of the following elements: (1) existence of the contract; (2) 28 15 1 Plaintiffs performance or excuse for nonperformance; (3) Defendant's breach; (4) damages to 2 Plaintiff as a result of the breach. 3 70. On November 28, 2023, Plaintiff executed a lease agreement for the property located at 5107 Haskell, 4 Encino, CA 91436 (APN 2261-002-011), with Defendants Mrs. Ashley Cohen and Mr. Donny 5 Cohen. This legally binding contract, as evidenced by the signed lease document, established the 6 terms and conditions of the tenancy. 7 71. Plaintiff fulfilled his obligations under the lease by paying the agreed-upon rent and abiding by the 8 lease terms. He moved into the property on December 2, 2023, demonstrating his commitment and 9 adherence to the contract. 10 72. Furnishings (Section V): The lease agreement specifically stated that a Bedroom Set, Dining Room 11 Set, Kitchen Set, Living Room Set, Rugs and Carpets, Shelving Unit, and other items would be 12 provided. However, upon move-in, the Plaintiff found the mattress provided to be insufficient and 13 causing back pain, which the Defendants acknowledged but refused to replace, directing the Plaintiff 14 to purchase his own mattress. In addition, the unit does not have a smoke detector. This directly 15 contradicts the agreement to provide and maintain the specified furnishings in a condition fit for use. 16 (Exhibit "A") 17 73. Appliances (Section VI): The lease agreement specifically states that the Defendant landlords shall 18 provide the following appliances: Air Conditioner Equipment, Dishwasher, Dryer (for laundry), 19 Fan(s), Garbage Disposal, Hot Water Heater, Lighting Fixtures, Microwave, Oven, Refrigerator, 20 Smoke Detectors, Stove, Thermostats and Controls, Washer (for laundry), all of which shall be on 21 the Premises and functional upon the move-in. Plaintiffs unit does not have central heating nor does 22 it have an accessible laundry. Plaintiff suffers from a variety of health problems and expected a 23 working heater, as advertised. Furthermore, Mrs. Ashley Cohen and Mr. Donny Cohen informed the 24 Plaintiff that he would only have access to the laundry certain days per week. Limited access to the 25 laundry room in their house is a gross departure from the claim of laundry room access, and a clear 26 breach. (Exhibit "A") 27 74. Utilities and Services (Section XXV): The Defendants breached the agreement by failing to provide 28 reliable Internet and WiFi services, essential for the Plaintiffs studies. This deficiency severely 16 1 hindered the Plaintiffs ability to fulfill his academic responsibilities as a full-time student. Plaintiff 2 was forced to purchase his own WiFi access out of necessity. 3 75. Access (Section XVII): The Defendants did not provide the Plaintiff with a lockable mailbox, which 4 is a clear violation of the agreement to provide access forms such as keys, fobs, cards, or keyless 5 entry devices. The Plaintiffs request for a lockable mailbox was met with a suggestion to use an 6 external PO Box, which is not in line with the promised provision of access and infringes upon the 7 Plaintiff's privacy and convenience. (Exhibit "A") 8 76. As a direct consequence of these breaches, the Plaintiff has suffered considerable distress and 9 inconvenience, impacting his daily living and academic performance. The inadequate mattress 10 exacerbated his back pain. Plaintiffs health conditions living at the residence, evidenced by his 11 discharge papers from UCLA Healthcare dated December 12, 2023, were exacerbated by Defendants' 12 ongoing egregious actions and behavior. The lack of reliable internet connection and the denial of a 13 lockable mailbox have infringed upon his privacy and personal security, causing further distress. 14 (Exhibit "G") 15 77. The breaches committed by the Defendants are not trivial but go to the very heart of the contract. The 16 failure to provide a habitable living environment, as promised in the lease, constitutes a substantial 17 breach, justifying the Plaintiffs claim for damages. Under California law, a landlord is obliged to 18 provide a living environment that meets basic habitability standards, including proper furnishings and 19 functional appliances as explicitly agreed upon in the lease. The denial of a lockable mailbox further 20 constitutes a breach of the Plaintiffs right to privacy and security, as guaranteed in the lease 21 agreement. 22 78. Given Mr. Donny Cohen's professional background as a licensed real estate agent, his awareness of 23 these standards and responsibilities is implicit. His conduct not only breached the contractual 24 agreement but also suggests a disregard for the ethical and professional standards expected in his 25 field. This raises concerns about the coercive nature of his actions, exploiting the Plaintiffs lesser 26 experience in real estate matters. His professional experience implies a higher level of knowledge, 27 making his failure to meet these obligations particularly reprehensible and suggestive of bad faith. 28 17 1 79. The Plaintiffs reliance on the Defendants' promises, as stipulated in the lease agreement, was both 2 reasonable and foreseeable, making the Defendants' breaches particularly egregious. The Restatement 3 (2d) of Contracts §90 supports the Plaintiffs position, as the Defendants should have reasonably 4 expected their promises to induce specific actions from the Plaintiff, namely entering into and abiding 5 by the lease agreement. 6 WHEREFORE, Plaintiff prays for judgment as set forth below. 7 8 SEVENTH CAUSE OF ACTION 9 BREACH OF IMPLIED DUTY OF GOOD FAITH AND FAIR DEALING 10 (Against All Defendants & Does 1-10) 11 80. Plaintiff re-alleges and incorporates by reference all proceeding paragraphs as though fully set forth 12 herein. 13 81. The Court in Automatic Vending Co. v. Wisdom (1960) 12 Cal. App.2d 354,358 held that "[W]here 14 a contract confers on one party a discretionary power affecting the rights of the other, a duty is 15 imposed to exercise that discretion in good faith and in accordance with fair dealing. (Citations 16 omitted)". 17 82. "When one party to a contract retains the unilateral right to amend the agreement governing the 18 parties' relationship, its exercise of that right is constrained by the covenant of good faith and fair 19 dealing which precludes amendments that operate retroactively to impair accrued rights." (Cobb v. 20 Ironwood Country Club (2015) 233 Cal.App.4th 960,963 [183 Cal.Rptr.3d282].) 21 83. The elements for breach of implied duty of good faith (CACI No. 325): 22 a. That Plaintiff and Defendant entered into a contract; 23 b. That Plaintiff did all, or substantially all of the significant things that the contract required 24 to do or was excused; 25 c. That all conditions required for Defendant's performance had occurred or were excused; 26 d. That Defendant's conduct prevented plaintiff from receiving the benefits under the 27 contract; 28 e. That by doing so, Defendant did not act fairly and in good faith; and 18 1 f. That Plaintiff was harmed by Defendant's conduct. 2 84. In the instant case, the contractual relationship between Plaintiff John Sciaraffa and Defendants Mrs. 3 Ashley Cohen and Mr. Donny Cohen commenced on November 28, 2023, with the lease of the "Cozy 4 Cottage" located at 5107 Haskell, Encino, CA. The lease, set to terminate on November 30, 2024, 5 stipulated certain amenities and conditions that were fundamental to the Plaintiffs consent to the 6 agreement, including but not limited to, the provision of a furnished living space, Wi-Fi, and other 7 advertised amenities. 8 85. Plaintiff fulfilled all contractual obligations, including the payment of a substantial security deposit 9 of $11,000 and adhering to the terms of the lease. Despite this, Defendants' conduct significantly 10 impaired the Plaintiffs ability to enjoy the benefits of the contract. This impairment is evidenced by 11 several actions and inactions by the Defendants, including but not limited to, the lack of central 12 heating, inadequate furnishings leading to physical discomfort, poor internet connectivity essential 13 for the Plaintiffs academic pursuits, restricted access to laundry facilities, and a lack of a secure 14 mailbox. 15 86. These actions, coupled with Defendant Donny Cohen's dismissive attitude towards the handling of 16 the security deposit and the provision of living conditions significantly below those advertised, 17 constitute a failure to act fairly and in good faith. Such conduct prevented the Plaintiff from receiving 18 the benefits under the contract and inflicted considerable harm, both physically and emotionally. This 19 harm is exacerbated by the fact that Plaintiff is a full-time student, for whom stable living conditions 20 are paramount to academic and personal well-being. 21 87. The conduct of the Defendants, particularly in light of Defendant Donny Cohen's experience and 22 reputation in the real estate industry, falls short of the standards expected under the covenant of good 23 faith and fair dealing. It is clear that the Defendants failed to exercise their discretionary power in a 24 manner that would ensure the Plaintiff could enjoy the premises and amenities promised under the 25 lease. 26 88. Therefore, Plaintiff seeks redress for the breach of the implied duty of good faith and fair dealing, 27 highlighting the disparity between the promised and delivered conditions of the rental property, the 28 impact of this disparity on the Plaintiffs living conditions, and the resultant breach of contract. This 19 1 cause of action stands on the premise that every contract implies a covenant of good faith and fair 2 dealing in its performance and enforcement, a covenant that has been undeniably violated by the 3 Defendants in this instance. 4 WHEREFORE, Plaintiff prays for judgment as set forth below. 5 6 EIGHTH CAUSE OF ACTION 7 RESTITUTION - UNJUST ENRICHMENT 8 (Against All Defendants & Does 1 - 10) 9 89. Plaintiff re-alleges and incorporates by reference all proceeding paragraphs as though fully set forth 10 herein. 11 90. "A person who has been unjustly enriched at the expense of another is required to make restitution to 12