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DAVID L. GERNSBACHER (SBN 89596) 6438 Drexel Avenue Los Angeles, CA 90048 TEL: 323-653-7900 FAX: 323-653-7901 Attorney for Plaintiff Mark D. Bitkower

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES/WEST DISTRICT

MARK D. BITKOWER, Plaintiff, v. ROBERT BEREND, individually and as trustee of the ROBERT BEREND FAMILY TRUST; PHILIP J. GANZ, JR.; LAURIE SUSAN GORSLINE; GANZ & GORSLINE; DOES 1 through 20, inclusive, Defendants.

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- - UNLIMITED CIVIL CASE - CASE NO. _______________ VERIFIED COMPLAINT FOR: 1. 2. 3. 4. 5. 6. BREACH OF LEASE; BREACH OF THE COVENANT OF QUIET ENJOYMENT; TRESPASS; INVASION OF PRIVACY; SPOILATION OF EVIDENCE; INJUNCTIVE RELIEF.

Plaintiff Mark D. Bitkower (Plaintiff) alleges as follows: COMMON ALLEGATIONS (Parties) 1. Plaintiff is, and at all times relevant herein was, an individual residing in Beverly

Hills, County of Los Angeles, California.

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2.

Plaintiff is informed and believes, and on that basis alleges, that Defendant Robert

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Berend (Berend) is, and at all times relevant herein was, an individual residing in the County of Los Angeles, California and is the trustee of the Robert Berend Family Trust.
3.

Plaintiff is informed and believes, and on that basis alleges, that Defendant Philip J.

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Ganz, Jr. (Ganz) is, and at all times relevant herein was, an individual residing in the County of Los Angeles, California, and is a member of Defendant Ganz & Gorsline.
4.

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Plaintiff is informed and believes, and on that basis alleges, that Defendant Laurie

Susan Gorsline (Gorsline) is, and at all times relevant herein was, an individual residing in the County of Los Angeles, California, and is a member of Defendant Ganz & Gorsline.
5.

Plaintiff is informed and believes, and on that basis alleges, that Defendant Ganz &

Gorsline (G&G) is an entity, form unknown, with its principal place of business in Los Angeles County, California. 6. Plaintiff does not know the true names and capacities of Defendants sued

hereunder as DOES 1 through 20, inclusive (the "Doe Defendants"), and, therefore, Plaintiff sues each of them by fictitious names. Plaintiff will seek leave to amend this complaint to allege the Defendants' true names and capacities when they are ascertained. Plaintiff is informed and believes, and on that basis alleges, that each Doe Defendant is responsible in some manner for the acts and liabilities alleged herein and that the damages sustained by Plaintiff were and continue to be the direct, proximate and foreseeable cause of the acts and/or omissions of the Doe Defendants, and each of them. 7. Plaintiff is informed and believes, and on that basis alleges, that each of the

Defendants acted in concert with and as agents of and for the other Defendants in doing the acts and omissions alleged herein and that each of the Defendants ratified and otherwise adopted such acts, omissions and statements of the other Defendants as were performed, made or carried out by each of the other Defendants.

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8.

The conduct and acts by Defendants as alleged hereinafter were without the

knowledge, authorization, consent or ratification of Plaintiff and occurred for the sole purpose of benefitting Defendants and causing harm, detriment and damage to Plaintiff. COMMON ALLEGATIONS (Background/Operative Facts)
9.

On or about January 24, 2001, Plaintiff, as tenant, and Berends predecessor-in-

interest, Olga Berend, Trustee, as landlord, entered into a lease (the Lease) for that certain apartment residence located at 210 South Hamilton Drive, Beverly Hills, California 90212 (the Premises). A true and correct copy of the Lease is attached hereto as Exhibit 1 and incorporated herein by this reference.
10.

Upon expiration of the Leases original one-year term of expired, Plaintiff held over

with the then landlords consent, thereby beginning a month-to-month tenancy of the Premises. Berend and Does 1 through 10 succeeded to the interests of the prior landlord. 11. At all times herein mentioned, Plaintiff had the exclusive right to possess and occupy the Premises.
12.

On or about August 18, 2006, Plaintiff filed a lawsuit against Berend, Berends

manager and the managers management company, entitled Bitkower v. Berend, et al., Los Angeles Superior Court, Case No. SC090812, for breach of lease, breach of warranty of habitability, breach of the covenant of quiet enjoyment, wrongful eviction, common law retaliatory eviction, violation of civil code section 1942.5 (statutory retaliatory eviction), negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, civil conspiracy, injunctive relief (statutory: unfair business practice and injunctive relief (equitable) (the Civil Action).
13.

On or about September 14, 2006, Berend filed an unlawful detainer lawsuit against

Plaintiff, entitled Berend v. Bitkower, Los Angeles Superior Court, Case No. 06U00714, for possession of the Premises (the U.D. Action). __________________________________________________________________________ 3 _ VERIFIED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF
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14. A material issue in both the Civil Action and the U.D. Action is the issue of the existence and scope and extent of mold and mold contamination in the Premises.
15.

At all times herein mentioned, Plaintiff was represented in both the U.D. Action and

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the Civil Action by David L. Gernsbacher (Gernsbacher).

16.

On or about December 8, 2006, the U.D. Action was tried, resulting in a judgment in

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favor of Plaintiff and against Berend, which judgment included a finding that Berend was guilty of retaliatory eviction.
17.

Although attorney Michael Simkin originally represented Berend and the other

Defendants in the Civil Action, and Berend as a plaintiff, in the U.D. Action, Simkin was subsequently substituted out in both cases. Ganz, Gorsline and G&G substituted in as counsel for Berend in the U.D. Action and the law firm of Gibbs Giden Locher & Turner (GGL&T) Substituted in as counsel for Berend in the Civil Action.
18.

On or about January 18, 2006, GGL&T and Gernsbacher agreed that GGL&T would

arrange for a mold inspection (and subsequent testing and analysis) of the Premises, that a written report setting forth the results of the mold inspection (and subsequent testing and analysis) would prepared (the Mold Report) and that GGL&T would provide Plaintiff with a complete copy of the Mold Report as the Mold Report was completed.
19.

Pursuant to and in reliance upon said agreement, Plaintiff agreed to allow Zvonicek

and the mold inspector to enter upon the Premises for the sole purpose of conducting the mold inspection and testing and, thereafter, to prepare the Mold Report.
20.

The Mold Report was subsequently prepared and transmitted to GGL&T, who, in

turn, transmitted a copy to Berend, Ganz, Gorsline and G&G.

21.

Plaintiff is informed and believes, and on that basis alleges, that the Mold Report

showed mold infestation and or mold spores in the Premises.

22.

Plaintiff is informed and believes, and on that basis alleges, that subsequent to the

transmittal of the Mold Report to Berend, Ganz, Gorsline and G&G, they and Does 1-20 __________________________________________________________________________ 4 _ VERIFIED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF
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entered and remained in and about the Premises to take photographs, go through Plaintiffs possessions and belongings and conduct work at the Premises to remove evidence of mold infestation and contamination, all without Plaintiffs knowledge, authorization or consent. FIRST CAUSE OF ACTION (Breach of Lease against Berend)
23.

Plaintiff refers to, realleges and incorporates by reference the allegations set forth in

paragraphs 1 through 22 of this Complaint as though fully set forth herein.

24.

Plaintiff performed all acts, covenants and conditions required of him under the

Lease except those, if any, excused and/or made impossible or impracticable by the unlawful and wrongful acts of Berend. 25. Such unauthorized and not consented to entry onto the Premises was and is in breach and a violation of the express and implied terms of the Lease. 26. The Lease provides at paragraph 23 thereof that [i]f any action or proceeding be brought by either party to this agreement, the prevailing party shall be reimbursed for all attorneys fees and costs in addition to other damages awarded.
27.

As a direct, proximate and foreseeable result of the breach of Lease by Berend as

alleged herein, Plaintiff has suffered compensatory damages of at least $10,000, according to proof. 28. As a further direct, proximate and foreseeable result of the breach of Lease by Berend as alleged herein, Plaintiff has incurred and continues to incur attorneys fees and costs, according to proof. SECOND CAUSE OF ACTION (Breach of Covenant of Quiet Enjoyment against Berend)
29.

Plaintiff refers to, realleges and incorporates by this reference the allegations set

forth in paragraphs 1 through 22 and 24 through 26 of this Complaint as though fully set forth herein. __________________________________________________________________________ 5 _ VERIFIED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF
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30.

The Lease and California law confer upon Plaintiff the right of quiet enjoyment of the

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Premises.
31.

By his conduct as alleged herein, Berend has breached the covenant of quiet enjoyment. As a direct, proximate and foreseeable result of the unlawful conduct of the Berend,

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32.

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as alleged herein, Plaintiff has suffered compensatory damages of at least $10,000, according to proof. 33. As a further direct, proximate and foreseeable result of the breach of Lease by Berend as alleged herein, Plaintiff has incurred and continues to incur attorneys fees and costs, according to proof. THIRD CAUSE OF ACTION (Trespass against all Defendants)
34.

Plaintiff refers to, realleges and incorporates by this reference the allegations set

forth in paragraphs 1 through 22, 24 through 26 and 30 through 31 of this Complaint as though fully set forth herein.
35.

The unlawful conduct of Defendants, and each of them, as alleged herein, constitutes a

legal and physical trespass of the Premises and Plaintiffs possessions.

36.

As a direct, proximate and foreseeable result of the unlawful conduct of Defendants,

and each of them, as alleged herein, Plaintiff has been damaged generally in an amount in excess of the limited jurisdiction of this Court, according to proof.
37.

As a further direct, proximate and foreseeable result of Defendants, and each of

them, as alleged herein, Plaintiff has suffered, and continues to suffer, severe emotional distress and physical injury and illness and has been, and continues to be, prevented from attending to his usual employment, business, social and personal affairs, all to Plaintiffs damage in excess of the limited jurisdiction of this Court, according to proof.
38.

As a further direct, proximate and foreseeable result of Defendants, and each of

them, as alleged herein, and the resulting severe emotional distress and physical injury and __________________________________________________________________________ 6 _ VERIFIED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF
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illness suffered by Plaintiff, Plaintiff has incurred, and continues to incur, expenses for the treatment of said distress, injury and illness, all to Plaintiffs damage in excess of the limited jurisdiction of this Court, according to proof.
39.

Plaintiff is informed and believes, and on that basis alleges, that the unlawful

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conduct of Defendants, and each of them, as alleged herein, was deliberate, despicable and malicious and oppressive and undertaken with a conscious and utter disregard of Defendants contractual, statutory and common law obligations to Plaintiff and in complete disregard of Plaintiffs rights and with a clear intention to depriving Plaintiff of his rights, his peace of mind, to gain an unfair advantage in the Civil Action, to chill and punish Plaintiff for exercising his lawful rights as a tenant and litigant, and to cause Plaintiff severe emotional distress and anguish, all to Defendants own benefit. Defendants despicable conduct has subjected and continues to subject Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiffs rights so as to justify an award of exemplary and punitive damages, according to proof. Plaintiff is informed and believes, and on that basis alleges, that the unlawful conduct of each of said Defendants was authorized and/or ratified by each and every other Defendant.
40.

As a further direct, proximate and foreseeable result of the unlawful conduct of

Berend, as alleged herein, Plaintiff has incurred and continues to incur attorneys fees and costs, according to proof. FOURTH CAUSE OF ACTION (Invasion of Privacy against all Defendants)
41.

Plaintiff refers to, realleges and incorporates by this reference the allegations set

forth in paragraphs 1 through 22, 24 through 26, 30 through 31 and 35 of this Complaint as though fully set forth herein.
42.

The unlawful conduct of Defendants, and each of them, as alleged herein, constitutes

an invasion of Plaintiffs right of privacy.

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43.

As a direct, proximate and foreseeable result of the unlawful conduct of Defendants,

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and each of them, as alleged herein, Plaintiff has been damaged generally in an amount in excess of the limited jurisdiction of this Court, according to proof.
44.

As a further direct, proximate and foreseeable result of the unlawful conduct of

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Defendants, and each of them, as alleged herein, Plaintiff has suffered, and continues to suffer, severe emotional distress and physical injury and illness and has been, and continues to be, prevented from attending to his usual employment, business, social and personal affairs, all to Plaintiffs damage in excess of the limited jurisdiction of this Court, according to proof.
45.

As a further direct, proximate and foreseeable result of the unlawful conduct of

Defendants, and each of them, as alleged herein, and the resulting severe emotional distress and physical injury and illness suffered by Plaintiff, Plaintiff has incurred, and continues to incur, expenses for the treatment of said distress, injury and illness, all to Plaintiffs damage in excess of the limited jurisdiction of this Court, according to proof.
46.

Plaintiff is informed and believes, and on that basis alleges, that the unlawful

conduct of Defendants, and each of them, as alleged herein, was deliberate, despicable and malicious and oppressive and undertaken with a conscious and utter disregard of Defendants contractual, statutory and common law obligations to Plaintiff and in complete disregard of Plaintiffs rights and with a clear intention to depriving Plaintiff of his rights, his peace of mind, to gain an unfair advantage in the Civil Action, to chill and punish Plaintiff for exercising his lawful rights as a tenant and litigant, and to cause Plaintiff severe emotional distress and anguish, all to Defendants own benefit. Defendants despicable conduct has subjected and continues to subject Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiffs rights so as to justify an award of exemplary and punitive damages, according to proof. Plaintiff is informed and believes, and on that basis alleges, that the unlawful conduct of each of said Defendants was authorized and/or ratified by each and every other Defendant. __________________________________________________________________________ 8 _ VERIFIED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF
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47.

As a further direct, proximate and foreseeable result of the unlawful conduct of

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Berend, as alleged herein, Plaintiff has incurred and continues to incur attorneys fees and costs, according to proof. FIFTH CAUSE OF ACTION (Spoilation of Evidence against all Defendants)
48.

Plaintiff refers to, realleges and incorporates by this reference the allegations set

forth in paragraphs 1 through 22, 24 through 26, 30 through 31, 35 and 42 of this Complaint as though fully set forth herein.
49.

The unlawful conduct of Defendants, and each of them, as alleged herein,

constituted an act or acts of spoilation of evidence in connection with the Civil Action and U.D. Action.
50.

As a direct, proximate and foreseeable result of the unlawful conduct of Defendants,

and each of them, as alleged herein, Plaintiff has been damaged generally in an amount in excess of the limited jurisdiction of this Court, according to proof. 51. Plaintiff is informed and believes, and on that basis alleges, that the unlawful conduct of Defendants, and each of them, as alleged herein, was deliberate, despicable and malicious and oppressive and undertaken with a conscious and utter disregard of Defendants contractual, statutory and common law obligations to Plaintiff and in complete disregard of Plaintiffs rights and with a clear intention to depriving Plaintiff of his rights, his peace of mind, to gain an unfair advantage in the Civil Action, to chill and punish Plaintiff for exercising his lawful rights as a tenant and litigant, and to cause Plaintiff severe emotional distress and anguish, all to Defendants own benefit. Said Defendants despicable conduct has subjected and continues to subject Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiffs rights so as to justify an award of exemplary and punitive damages, according to proof. Plaintiff is informed and believes, and on that basis alleges, that the unlawful conduct

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of each of said Defendants was authorized and/or ratified by each and every other of said Defendants.
52.

As a further direct, proximate and foreseeable result of the unlawful conduct of

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Berend, as alleged herein, Plaintiff has incurred and continues to incur attorneys fees and costs, according to proof. SIXTH CAUSE OF ACTION (Injunctive Relief against all Defendants)
53.

Plaintiff refers to, realleges and incorporates by reference the allegations set forth in

paragraphs 1 through 22, 24 through 26, 30 through 31, 35, 42 and 49 of this Complaint as though fully set forth herein. 54. Plaintiff has already suffered and will continue to suffer irreparable harm unless Defendants, and each of them, are not enjoined from continuing their unlawful conduct as alleged herein. 55. As of the drafting of this Complaint, Defendants, by and through Ganz, have refused to agree to cease entering the Premises without notice, consent and/or authorization of Plaintiff.
56.

Plaintiff has no legal remedy sufficient to prevent further and irreparable harm

caused by Defendants unlawful conduct as alleged herein.

57.

Accordingly, Plaintiff requests that this Court issue a temporary, preliminary and

permanent injunction enjoining Defendants, and each of them, in concert with, acting under, or for Defendants, from the following:
a.

entering the Premises without the express written permission of Plaintiff and

Gernsbacher; b. viewing, copying, disseminating or otherwise in any manner using the

photographs or any other data, depictions or information obtained as a result of the unlawful conduct of Defendants, and each of them, as alleged herein; __________________________________________________________________________ 10 _ VERIFIED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF
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2.

c. d. e.

interfering with Plaintiffs quiet enjoyment of the Premises; interfering with Plaintiffs lawful possession of the Premises; destroying, removing, or in any other way or means making unavailable any

evidence obtained or removed as a result of the unlawful conduct of Defendants, and each of them, as alleged herein. WHEREFORE, Plaintiff prays for judgment as follows: On the First Cause of Action:
1.

For compensatory damages of at least $10,000, according to proof; For attorneys fees awardable by the Lease, as against Berend;

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On the Second Cause of Action:

3. 4.

For compensatory damages of at least $10,000, according to proof; For attorneys fees awardable by the Lease, as against Berend;

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On the Third Cause of Action: 5. For general compensatory damages in excess of the jurisdictional minimum of this

Court, according to proof; 6.

7.

For past and future hospital and medical expenses, according to proof; For damages for loss of earnings and earning capacity, according to proof; For exemplary and punitive damages, according to proof; For attorneys fees awardable by the Lease, as against Berend;

8.
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On the Fourth Cause of Action: 10. For general compensatory damages in excess of the jurisdictional minimum of this Court, according to proof; 11. For past and future hospital and medical expenses, according to proof; 12. For damages for loss of earnings and earning capacity, according to proof; 13. For exemplary and punitive damages, according to proof;
14.

For attorneys fees awardable by the Lease, as against Berend;

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On the Fifth Cause of Action:

15.

For general compensatory damages including, without limitation, for loss of

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evidence in connection with the Civil Action and U.D. Action, in excess of the jurisdictional minimum of this Court, according to proof; 16. For exemplary and punitive damages, according to proof;
17.

For attorneys fees awardable by the Lease, as against Berend;

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On the Sixth Cause of Action: 18. For a Temporary Restraining Order enjoining Defendants, and each of them, and all those in concert with, acting under, or for Defendants, from: a. Gernsbacher; b. viewing, copying, disseminating or otherwise in any manner using the entering the Premises without the express written permission of Plaintiff and

photographs or any other data, depictions or information obtained as a result of the unlawful conduct of Defendants, and each of them, as alleged herein; c. d. e. interfering with Plaintiffs quiet enjoyment of the Premises; interfering with Plaintiffs lawful possession of the Premises; destroying, removing, or in any other way or means making unavailable any

evidence obtained or removed as a result of the unlawful conduct of Defendants, and each of them, as alleged herein.
19.

For an order requiring Defendants, and each of them, to show cause, if they have

any, why Defendants, and each of them, should not be enjoined during the pendency of this action, as set forth in paragraph 14, above.
20.

For a preliminary injunction and a permanent injunction enjoining Defendants, and

each of them, and all those in concert with, acting under, or for Defendants, as set forth in paragraph 14, above;
21.

For attorneys fees awardable by the Lease, as against Berend;

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On All Causes of Action: 22. For costs of suit; and 23. For such other and further relief as the Court deems just and proper. Dated: February 15, 2007 ______________________________ David L. Gernsbacher Attorney for Plaintiff Mark D. Bitkower

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VERIFICATION The undersigned hereby declares as follows: 1. 2. 3. I am the Plaintiff in this action. I have read the Complaint to which this Verification is attached. The contents of the Complaint are true and correct and based upon my personal

knowledge, except as to those matters which are alleged on information and belief. As to those matters alleged on information and belief, I believe and am informed they are true and correct. I declare under penalty of perjury that the foregoing is true and correct. Executed on February 15, 2007, at Los Angeles, California.

______________________________ Mark D. Bitkower

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