ROSARIO PERRY, A PROFESSIONAL LAW CORPORATION

1 Vano D. Abesadze, SBN 316489

Rosario Perry, SBN 55061
2 312 Pico Blvd.
Santa Monica, CA 90405
3 Rosario@oceanlaw.com
Tel.: (310) 394-9831
4 Fax: (310) 452-3950

5 Attorney for Plaintiffs

SHERI and CAMERON SWIST
6
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF LOS ANGELES, CENTRAL DISTRICT
9
10 SHERI SWIST, an individual, CAMERON ) Case No.: BC 688035
SWIST, a Minor, through SHERI SWIST, )
11 his Guardian ad Litem, ) (Assigned for all purposes to:
) Hon. Randolph M. Hammock, Dept. 47]
12 Plaintiffs, )
)
13 V. ) DECLARATION OF SHERI SWIST IN
) SUPPORT OF APPLICATION FOR
14 ROSS MORGAN & COMPANY INC., a ) DEFAULT JUDGMENT
California CorporatiQn, TOSCANA )
15 OWNERS ASSOCIATION, a California )
Corporation, ADEL AL-SUMAIT, an ) Trial Date: Vacated
16 individual, KRIS HAMBt,JRGER,. an )
individual, and DOES 2 through I 0, )
17 )
)
18 Defendants. )
)
19
20
21 I, Sheri Swist, declare as follows:
22 1. The following declaration is based on my personal knowledge, and if called upon to

23 testify I could testify competently as to the matters set forth below.

24 2. I own a property located at 23931 DeVille Way, Malibu, CA 90265. The property is a

25 condominium and part of a common interest development known as Toscana Owners

26 Association, Inc., which consists of 22 units.

27 3. I am a single mom raising my teenage son Cameron Swist who also is Plaintiff in this

28 matter. I am acting as a guardian ad litem of him for purpose of this action.

1
DECLARATION OF SHERI SWIST
 1 4. Defendant Kris Hamburger was residing as next door tenant in the same condominium

2 complex as I have been living in. His address was 23933 Deville Way, Malibu, CA 90265.

3 5. Mr. Hamburger was disrupting my right to quite enjoyment of my property by drinking,

4 smoking, shouting and playing loud music from 10 pm till the early hours in the morning in a

5 common area subject to CCRs which the area is separated from my property by a wall and

6 windows. These activities were repetitive in nature and were occurring at least three time a

7 week causing emotional distress to my son and me.

8 6. I had never had a need for this type of action in the 12 previous years of residing there,

9 but felt threatened and vulnerable in the situations and in need of protection for my son and

10 me.

11 7. Multiple times I asked Mr. Hamburger to stop above disruptive activities in the common

12 area at night but he did not stop and he continued his abusive and disruptive activities in the

13 common area.

14 8. Besides that, there was an incident that Mr. Hamburger's guest started screaming in

15 obscene langue at my window between midnight till 4 a.m.,

16 9. As a result of above disruptive activities and behavior, I was not able to sleep at night and

17 I suffered substantially from stress and anxiety. Due to the fear and anxiety that I was

18 suffering, I was not able to concentrate and perform any professional work.

19 10. I claim for infringement of covenant of quiet enjoyment. CCR§ 3.03 of the

20 condominium, in which I am residing, requires occupants of units to not interfere with quit

21 enjoyment of occupants.

22 11. I have been paying $8,342.46 mortgage and I suffered from this disruption from July

23 2016 to May 2017, for eleven (11) months. Therefore, I am claiming $27,530.00 which is

24 30% of the total payments I made for my house during the 11 months ($91,767.06) because of

25 the infringement of my right under CCR.

26 12. To stop his disruptive behavior, initially, I asked Mr. Hamburger in writing and verbally

27 to stop his disruptive activities in common area at night. My repeated pleas to stop the

28
2
DECLARATION OF SHERI SWIST
 aforementioned activities and appeals to the HOA had no effect on Defendant Hamburger. He
1
2 continued to pursue his course of conduct until the date he moved out in May 2017.
13. During the period of Defendant Hamburgers tenancy I had to summon police not less that
3
4 10 time to stop him. However, it did not have any effect on him because he would continue

5 doing what he was doing the very next day.

6 14. Defendant Hamburger would stand outside my window smoking cigarettes and staring

7 into my home including when I was teaching small children piano lessons. Mr. Hamburger

8 purposefully put two chains in the space pointing directly into my living room to intimidate

9 and harass me.

10 15. I was not able to work because oflosing entire nights sleep on regularly basis during

11 Defendant's tenancy because of the loud partying that was going on right outside or my

12 window.

13 16. I suffered severe emotional distress -and actually dreamed going home at night for fear of

14 what kind of intimidation and foul language including racial slurs would be hurled at me and/

15 ormy son.

16 17. In this suite, I raised following causes of action against Mr. Hamburger, 1) Negligence 2)

17 Intentional Infliction of Emotional Distress 3)Breach of Covenant of Quit Enjoyment 4)

18 Nuisance

19 18. I alleged negligence cause of action in my complaint because Mr. Hamburger owed

20 general duty of care to me to not harm me. He breached his duty as a neighbor by causing

21 emotional stress to me by conducting above disruptive activities in midnights in common

22 area in the condominium.

23 19. As a result of Mr. Hamburger's abusive and disruptive behavior which was explained

24 above, I lost wages and suffered emotional stress.

25 20. His disruptive behavior stressed me out and caused anxiety for me. During that time I

26 was able to sleep at night and because of my sleep deprivation, I was not able to work

27 professionally.
28
3
DECLARATION OF SHERI SWIST
 21. As a Jaw clerk with Law Offices of Thomas A. Nitti, I am responsible for preparation of

2 legal drafts, including complaints, declarations, discovery requests, responses and other

3 pleadings. I research law by studying statutes, regulations, including precedents and

4 reasoning. I started working for Mr. Nitti in 2016. My earning capacity was diminished

5 because of my inability to sleep through the night. I lost around 172 hours of work which

6 amounts to $12,900.00 loss of income.

7 22. Because of emotion stress I suffered and inability to sleep for extended period of time,

8 my performance dimiijished in some quantifiable way - such as increased absenteeism and

9 lower performance ratings.

10 23. The above damages was substantially caused by Mr. Hamburger's abusive and disruptive

11 behavior. But for his disruptive activities, I would not suffer emotional stress and loss wages.

12 24. I sued Mr. Hamburger for Intentional Infliction of Emotional Distress. He had intent to

13 harm me because despite my warnings and HOA's warning to him to stop his abusive

14 behavior, he continued his disruptive behavior.

15 25. I request $10,000 in compensation for emotional distress suffered by my son and me

16 during eleven (11) months period.

17 26. I pied for punitive damages and request this Court to award $100,860 as punitive

18 damages.
19 27. Wherefore I am respectfully requesting that the court award to Plaintiffs judgment against

20 Defendant Hamburger in the sum of $151,290.00 which is $12,900.00 for los on income;

21 $10,000.00 for emotional distress; $27,530.00 for loss of quite enjoyment; and $100,860.00

22 for punitive damages.

23 I declare under penalty of perjury under the laws of the State of California that the

24 foregoing is true and correct. This declaration is executed on August 7, in Malibu, California.
25 Respectfully submitted,

26
27
SHERI SWIST
28
4
DECLARATION OF SHERI SWIST