THE WELCH COMPANY
440 Davis Court #1602
San Francisco, CA 94111-2496
415 781 5700
S U M M A R Y
DIARY: April 27, 2000 09:00 AM Thursday;
Jury Superior Court; rent control case, final arguments and decision.
2...Arrived at Court and Signed In
3...Jury Instructions Focuses on "Dominant" Intent, Mistate's Notice???
4...Final Argument - Plaintiff Reduces Period of Damages
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Jury Duty Legal Practice Organizational Memory Analysis
1803 - ..
1804 - Summary/Objective
180501 - Follow up ref SDS 9 0000, ref SDS 8 0000.
180503 - Received jury instructions, heard final arguements, then in the
180504 - afternoon was dismissed as an alternate juror, but instructed to
180505 - remain on standby in case a juror cannot complete deliberations, and
180506 - an alternate needs to be called. Jury instruction on standard for
180507 - finding liability seems to conflict with the eviction notice at issue
180508 - in the case. ref SDS 0 4711 Plaintiff's counsel gave brilliant final
180509 - arguement, but reasoning of relying on defendant's past record for
180510 - finding plaintiff liable, would seem to equally apply to finding that
180511 - plaintiff would not have suffered damage. ref SDS 0 5856
180513 - [On 001214 submitted follow up letter to Judge Douglas, linked to
180514 - this record. ref SDS 10 0001
180516 - ..
180517 - [On 010103 Judge Douglas commented favorably on SDS methodology.
180518 - ref SDS 11 0001
180521 - ..
1808 - Administration
180901 - ..
180902 - Arrived at Court and Signed In
180904 - Follow up ref SDS 9 0482, ref SDS 8 0482.
180906 - Juror ID: 200310516
180908 - ..
180909 - Juror Group: 213
180912 - ..
180913 - Jury Instructions Focuses on "Dominant" Intent, Mistate's Notice???
180915 - The Judge's daughter was in court this morning in connection with a
180916 - special day for children of employees to visit the court. The Judge
180917 - asked his daughter to hand out a pamphlet of jury instructions, of
180918 - about 25 pages. Most pages only had a few sentences, so there were
180919 - not 25 full pages of instructions.
180921 - ..
180922 - The key instruction to jury is on the page following BAJI 2.42. The
180923 - actual page does not have an identification number but has the
180924 - heading...
180927 - Owner Move In Eviction Requirements
180929 - ...and says...
180931 - In this case, in order to comply with the provisions of the San
180932 - Francisco Rent Ordinance for eviction for occupancy of a unit by a
180933 - landlord, the landlord must have had as her dominant motive
180934 - recovery of possession of the rental unit in good faith, without
180935 - ulterior reasons, and with honest intent, for the landlord's use
180936 - and occupancy as the principal residence of the landlord for a
180937 - period of at least 12 continuous months.
180940 - ..
180941 - During rebuttal testimony, plaintiff's counsel displayed for review
180942 - by the jury Exhibit #10, which is an extract of the eviction notice
180943 - to plaintiff. The eviction notice does not say anything about
180944 - "dominate motive," but does state...
180946 - ...owner will take possession of the rental unit in good faith,
180947 - without ulterior reasons, and with honest intent to use for the
180948 - principal residence of the landlord for a period of at least 12
180949 - continuous months.
180951 - ...or words to that effect.
180953 - ..
180954 - The key difference is that "dominent intent" is not in the eviction
180955 - notice. What then is the source for the requirement of "dominant
180956 - intent"? Is that language in the ordinance, and was it omitted from
180957 - the eviction notice? Or, was this an interpretation for the purpose
180958 - of helping the jury evaluate "ulterior" motive language that is in the
180959 - eviction notice?
180961 - ..
180962 - There is no instruction on "ulterior motive" that identifies what
180963 - would be "ulterior"? For example she had an ulterior motive to be
180964 - near the Palace of Fine Arts, or she had an ulterior motive to enjoy
180965 - the weather, or to get away from her Aunt Libby? Another example of
180966 - "ulterior motive" might be that she liked living in a construction
180967 - zone, and could not wait to start tearing the building apart in order
180968 - to build a beautiful building.
180970 - ..
180971 - How do we evaluate actionable motive to make money from ordinary
180972 - motives that everyone has to acquire more money, per analysis on
180973 - 000414? ref SDS 2 3522
180976 - ..
180977 - Final Argument - Plaintiff Reduces Period of Damages
180979 - Plaintiff's counsel in closing argument told the jury to reduce the
180980 - period of damages from 15-20 years, testified by plaintiff's expert,
180981 - who said that he based damage calculations, not on surveys or
180982 - historical demographic data showing frequency that young people of
180983 - Plaintiff's age typically move, but solely on representations by the
180984 - plaintiff, during a phone conversation, that Plaintiff would have
180985 - occupied the disputed unit for a period of 20 years, but for
180986 - defendant's alleged wrongfull eviction.
180988 - ..
180989 - Plaintiff's counsel, during final arugment, urged the jury to set
180990 - damages based on a 5 - 10 year period of denied occupancy. Counsel
180991 - argued that his client's direct testimony in support of a 20 year
180992 - occupancy was unbelievable. If Plaintiff's testomony is unbelievable
180993 - on this crucial issue of entitlement, why should the rest of the
180994 - testimony be believed to establish liability that, but for,
180995 - defendant's actions, Plaintiff would have continued living in the
180996 - disputed quarters, since Plaintiff subsequently moved several times
180997 - and her income has significantly increased? Often, when income goes
180998 - up, people move from modest to more comfortable accomodations.
181000 - ..
181001 - Plaintiff's argument therefore seems conflicting.
181003 - ..
181004 - Plaintiff argues the jury should conclude defendant's dominant intent
181005 - was to fix up the Chestnut property and sell it, rather than hold it
181006 - for retirement residence and income, as testified by defendant, and
181007 - points to defendant's history of fixing up and selling other
181008 - properties. Counsel suggested the analysis should hinge on analogies
181009 - of love or money, and flipping a coin. Plaintiff's counsel argued
181010 - pursuasively that this past pattern constitues a greater preponderance
181011 - of evidence than the record of...
181013 - 1. defendant having continued to reside in the property more than
181014 - a year after the period required by the ordinance;
181016 - 2. defendant's sworn testimony; testimony of defendant's friend,
181017 - and further the record that
181019 - 3. defendant's 50% partner has never sold any of his property
181020 - projects, but rather has held them for appreciation, as
181021 - defendant testified was the intent in this case.
181023 - ..
181024 - To reject the weight of this evidence, leaves open the question of
181025 - what evidence, if any, can establish that a past pattern of buying and
181026 - selling properties, would not apply to a next property? In other
181027 - words is it impossible for ambitious people, who add value to rental
181028 - property, to estabilish, with any evidence, compliance with the rent
181029 - control ordinance, under the Plaintiff's theory, since the Defendant's
181030 - history of success inherently creates a preponderance of evidence
181031 - against compliance?
181033 - ..
181034 - Is this really an appropriate risk in the interests of the community,
181035 - and even the plaintiff, who will one day be in the defendant's shoes,
181036 - as her income continues to rise on the strength of demonstrated talent
181037 - and intiative during trial?
181038 - ..
181039 - Assuming direct testimony should be ignored, when it conflicts
181040 - with past pattern of practice, should not the same standard be applied
181041 - to plaintiff in evaluating the duration of her stay in the disputed
181042 - apartment unit? Plaintiff's past practice was to move in and then
181043 - relocate, move in and then relocate. ref SDS 5 5072 While she
181044 - testified strongly that in the case of the Chestnut property she
181045 - intended to stay there for 20 years, should not that testimony be
181046 - ignored based on the same standard plaintiff urges be applied to
181047 - defendant's testimony, particularly in light of plaintiff's admission
181048 - that she recently moved in with a boyfiend to be nearer to her new job
181049 - that pays $90K, rather than the $40K she was making while living at
181050 - the Chestnut property at issue in the case. ref SDS 5 5208
1813 - 1724
181402 - ..
181403 - Mike Williams, clerk for Judge Douglas reported the case is over.
181405 - ..
181406 - Jury found for Plaintiff in the amount of $69,318.40.
181408 - ..
181409 - This is on the ragged edge of inviting appeal, which will cost about
181410 - $20 - $40K for both sides. Will be interesting to see what happens.