On July 12, 2018, the Court of Appeal ruled against efforts by the City of San Francisco to derail Kihagi’s appeal. The City had requested the Appellate Court dismiss Kihagi’s appeal without ever reviewing the substance of her case. After more than two months of briefing, the Court ruled for Kihagi that the appeal would continue.
Here’s some background on the case: In June 2017, Judge Bradstreet awarded a substantial judgment in the landlord/tenant case of the City and County of San Francisco. After that ruling, Kihagi filed an appeal based on a tremendous number of procedural errors that were made by the trial court, including issues such as inaccurate and misleading testimonies (possibly perjury) by some of the tenant witnesses.
During the course of the trial, the City’s strategies had been to overwhelm Kihagi and the defendant corporate entities, and during the trial, the court even denied them a chance to testify in their own defense.
The common testimony from many of the tenants who testified in the case for the City of San Francisco was that they had never met Kihagi and had never communicated with her about anything they needed in their units.
“It is easy for lower court judges to make rulings whether supported by evidence or not, as the appellate procedure makes it difficult on any appellant undertaking an appeal,” says Kihagi. The premise at the appeal level starts by assuming that findings made by the lower court are correct and can only be appealed by demonstrating errors of law.
“In numerous instances, the rulings were not based on actual evidence but rather actual bias,” Kihagi added.
The court took each and every interaction that Kihagi had with many of her tenants over the short period of her ownership and found a way to label each act as an act of harassment. One example: one of Kihagi’s tenants, who was paying $3,600/month, moved out from a small one-bedroom apartment as his wife was expecting their first child. Without any presentation by the tenant to the contrary, the court awarded penalties of $36,000 and ruled that the tenant had moved out due to being harassed. There was no rational basis for this as the tenant indicated otherwise; that they had a growing family and needed more space, plus he was paying market rent.
Another example occurred when three occupants in Elizabeth Chavez’s unit decided to move out. They gave Kihagi a 30-day notice and vacated the unit. The notice did not claim any issues other than the tenant was using her deposit to offset the last month rent. In fact, Gail Izaguirre, who lived next to Chavez, testified that she had heard the move was precipitated by the fact that Chavez could no longer afford her $3,200 rent, and that Chavez had broken up with her girlfriend. There had never been any complaints by Chavez that she was forced to move out. “Yet, with no testimony from any of the 2 other occupants in the case, Judge Bradstreet awarded the city $114,000. Where is fairness here?” Kihagi asks.
When Kihagi asked one of her prospective tenants not to sit on the front staircase leading to the building’s entrance during an open house where she expected a lot of attendance, the tenant agreed and moved inside the unit. “The tenant testified that he didn’t have any problem with the request. Yet, Judge Bradstreet still awarded $1,000 to the city, which is hard to understand,” says Kihagi.
When two large men weighing a combined weight four times that of Kihagi’s and measuring 6’5” to Kihagi’s 5’7” told Judge Bradstreet that they were fearful when they met Kihagi for the first time on a beautiful Sunday afternoon, she awarded them $2,000. How could tenants who had never met her be fearful just for Kihagi introducing herself to them and stating, “name is Anna”?
In fact, the common testimony from most of the tenants was that most had never met Kihagi, and had never communicated with her about anything they needed in their units. There’s a general law that requires fair dealing between people doing business together. In a landlord-tenant-type relationship, the law would require that they give each other notice. This is why the rent board will not consider any complaints by tenants until they have presented their concern to their respective landlord.
In fact, the best example of how similar cases to Kihagi’s are handled was evidenced when one of her tenants, Sheila Hembury, from her Guerrero property, filed a rent board petition. These petitions are filed by tenants who feel that they have experienced a reduction of some rental service. When Hembury presented her case to the rent board, the rent board awarded her a total of $100 reduction in her rent.
“In essence, for similar issues that the San Francisco trial court in this case awarded over $872,000 in penalties (and the city of San Francisco had asked for penalties in the amount of $1,325,000), the rent board, which deals with these types of cases, and is tasked with adjudicating tenant-landlord disputes, had awarded two tenants only $100.
“Should the court not have been persuaded by the very findings of the organization that hears most of these types of disputes?” asks Kihagi.
“In fact, the city had called the head of the rent board as an expert, and she gave very positive testimony about how she views landlord-tenant disputes. The most revealing statement that she gave the court is the requirement that the tenants must first give notice to the owners, and a reasonable time to resolve the issue. Judge Bradstreet was not swayed one bit by this testimony, even though the head of the rent board was the City’s own witness,” says Kihagi.
“Was it any wonder then that Judge Bradstreet would award more than $1,250,000 in additional penalties based on evidence presented by a housing inspector who had no plumbing experience, no electrical experience, and had never been to any of Kihagi’s buildings? Yet, the court awarded millions despite the requirement by the State of California to have qualified experts testifying about such issues,” says Kihagi.
During the course of the trial, more than five inspectors testified positively for Kihagi, and in fact, the only inspector who had ever been to all of the buildings involved in this case was Inspector Lepe, who stated, “Generally, the buildings were in good condition.”
So, how should the Court of Appeal decide? Kihagi has won all of the appeals she has undertaken when presented to the Second District Court of Appeal. Whereas Kihagi was shocked by the severity of the awards by the San Francisco court. “If the First District Court of Appeal is fair, and follows the law, she expects to prevail again,” says Kihagi.
“However, while her case is currently on appeal, the City is again at it with strategies to derail her,” says Kihagi.
In the appeal, Kihagi has raised major constitutional and due process issues. “Each American has a right to be heard and defend herself. More than three judges recognized the City’s attempts in the lower court to have Kihagi’s case ended without her to prepare for the trial or defend herself” said Mr. Zfaty, one of Kihagi’s attorney.
The City of San Francisco recently tried a similar strategy, again, at the appellate level. The City first petitioned the Court of Appeal to expedite the review of Kihagi’s appeal in an attempt to force Kihagi to prepare her appeal with less time than the average appellant. Next, the City sought to have Kihagi’s appeal dismissed. However, the Court of Appeal disagreed and allowed the appeal to continue,” says Kihagi. “The above acts show the City’s relentless efforts to deny Kihagi her right to defend herself. We are confident that the case will be overturned, and if the City believes that not to be true, they should relax and let the Court of Appeal review the rulings made by Judge Bradstreet,” says Kihagi.
Throughout the course of these trials, Kihagi has learned that bad outcomes happen when one is silent, and she has finally chosen to speak up to help set the record straight. The case is currently on appeal and a hearing is expected within the next 9 months.
For more information – go to Annekihagisf.com and Truefactssf.com