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1 Michael Shklovsky, Esq. (Bar No. 255893)
ANDERSON ZEIGLER
2 A Professional Corporation
50 Old Courthouse Square, 5th Floor
3 Santa Rosa, CA 95404
Telephone: 707/545-4910
4 Facsimile: 707/544-0260
Email: mshklovsky@andersonzeigler.com
5
Attorneys for Defendant Kelly Moffat
6
7 SUPERIOR COURT, SONOMA COUNTY, CALIFORNIA
8
Case No. SCV-268905
9 SEAN DUGGAN, an individual, on
his own behalf and derivatively on REQUEST FOR JUDICIAL NOTICE IN
A PROFESSIONAL CORPORATION, ATTORNEYS AT LAW
P.O. BOX 1498, SANTA ROSA, CALIFORNIA 95402-1498
10 behalf of the Duggan Family OPPOSITION TO PLAINTIFF’S EX PARTE
Limited Partnership; APPLICATION FOR (1) APPOINTMENT
FAX (707) 544-0260
11 OF RECEIVER; AND (2) PRELIMINARY
ANDERSON ZEIGLER
Plaintiff, INJUNCTION
12 vs.
Date: June 21, 2022
13 LYNN DUGGAN, an individual; Time: 10:00 a.m.
and DOES 1 through 25, inclusive, Dept: 17
TEL (707) 545-4910
14
Defendants,
15 [UNLIMITED CIVIL]
- and –
16 Jury Trial Demanded
THE DUGGAN FAMILY LIMITED
17 PARTNERSHIP, a California ASSIGNED FOR ALL PURPOSES:
Limited Partnership; and KELLY
18 MOFFAT, an individual, Judge: Bradford DeMeo
Department: 17
19 Nominal Defendants.
20
21
22
23
Defendants Lynn Duggan, The Duggan Family Limited Partnership and Kelly Moffat
24
hereby request that the Court take judicial notice of the documents below, pursuant to
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Evidence Code sections 452(c), 452(d) and 453. True and correct copies of each document
26
are attached hereto as Exhibits 1 through 20.
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28
1
REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION
1
Exh. Request for Judicial Notice Authority Ruling
2
1. 05/03/22 Ex Parte Stipulation for Briefing Evid. Code §§ 452(c), Granted _____
3 Schedule for Plaintiff’s Motion for 452(d) and 453 Denied _____
Appointment of Receiver, OSC re
4 Appointment and TRO
5 2. 05/03/22 Plaintiff’s Notice of Motion and Evid. Code §§ 452(c), Granted _____
Motion for (1) Appointment of Receiver; 452(d) and 453 Denied _____
6 and (2) Preliminary Injunction
7 3. 05/03/22 Plaintiff’s Memorandum of Evid. Code §§ 452(c), Granted _____
Points and Authorities in Support of 452(d) and 453 Denied _____
8 Plaintiff’s Motion for (1) Appointment of
Receiver; and (2) Preliminary Injunction
9
4. 05/03/22 Declaration of Sean Duggan in Evid. Code §§ 452(c), Granted _____
10 Support of Motion for (1) Appointment of 452(d) and 453 Denied _____
Receiver; and (2) Preliminary Injunction
11
5. 05/03/22 Declaration of Lisa C. McCurdy Evid. Code §§ 452(c), Granted _____
12 in Support of Motion for (1) Appointment 452(d) and 453 Denied _____
of Receiver; and (2) Preliminary
13 Injunction
14 6. 05/03/22 [Proposed] Order Granting Evid. Code §§ 452(c), Granted _____
Motion for Appointment of Receiver and 452(d) and 453 Denied _____
15 Preliminary Injunction
16
7. 05/03/22 Omnibus Proof of Service re Evid. Code §§ 452(c), Granted _____
Plaintiff’s Motion for (1) Appointment of 452(d) and 453 Denied _____
17
Receiver; and (2) Preliminary Injunction
18
8. 05/11/22 Opposition to Plaintiff’s Motion Evid. Code §§ 452(c), Granted _____
19
for (1) Appointment of Receiver; and (2) 452(d) and 453 Denied _____
Preliminary Injunction
20
9. 05/11/22 Declaration of Lynn Duggan in Evid. Code §§ 452(c), Granted _____
21 Support of Opposition to Plaintiff’s 452(d) and 453 Denied _____
Motion for (1) Appointment of Receiver;
22 and (2) Preliminary Injunction
23
10. 05/11/22 Declaration of Kelly Moffat in Evid. Code §§ 452(c), Granted _____
24 Support of Opposition to Plaintiff’s 452(d) and 453 Denied _____
Motion for (1) Appointment of Receiver;
25 and (2) Preliminary Injunction
26 11. 05/11/22 Declaration of C. Edward Evid. Code §§ 452(c), Granted _____
Turner in Support of Opposition to 452(d) and 453 Denied _____
27 Plaintiff’s Motion for (1) Appointment of
Receiver; and (2) Preliminary Injunction
28
2
REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION
12. 05/11/22 Declaration of Leon Geisberg in Evid. Code §§ 452(c), Granted _____
1 Support of Opposition to Plaintiff’s 452(d) and 453 Denied _____
Motion for (1) Appointment of Receiver;
2 and (2) Preliminary Injunction
3
13. 12/09/21 Declaration of Scott Shapiro of Evid. Code §§ 452(c), Granted _____
the Poppy Bank in Support of Opposition 452(d) and 453 Denied _____
4 to Plaintiff’s Motion for (1) Appointment
of Receiver; and (2) Preliminary
5
Injunction [filed on 05/11/22]
6
14. 05/11/22 Proof of Service re Opposition Evid. Code §§ 452(c), Granted _____
to Plaintiff’s Motion for (1) Appointment 452(d) and 453 Denied _____
7
of Receiver; and (2) Preliminary
8
Injunction
9 15. 05/13/22 Plaintiff’s Reply in Support of Evid. Code §§ 452(c), Granted _____
Motion for (1) Appointment of Receiver; 452(d) and 453 Denied _____
10 and (2) Preliminary Injunction
11 16. 05/13/22 Declaration of Sean Duggan in Evid. Code §§ 452(c), Granted _____
Support of Reply in Support of Motion 452(d) and 453 Denied _____
12 for (1) Appointment of Receiver; and (2)
Preliminary Injunction
13
17. 05/13/22 Supplemental Declaration of Evid. Code §§ 452(c), Granted _____
14 Lynn Duggan in Support of Opposition to 452(d) and 453 Denied _____
Plaintiff’s Motion for (1) Appointment of
15 Receiver; and (2) Preliminary Injunction
16 18. 05/16/22 Defendants’ Objection to Evid. Code §§ 452(c), Granted _____
Evidence 452(d) and 453 Denied _____
17
19. 05/17/22 Supplemental Reply Declaration Evid. Code §§ 452(c), Granted _____
18 of Sean Duggan in Support of Motion for 452(d) and 453 Denied _____
(1) Appointment of Receiver; and (2)
19 Preliminary Injunction
20 20. 05/19/22 Order After Hearing – May 18, Evid. Code §§ 452(c), Granted _____
2022 452(d) and 453 Denied _____
21
22
ANDERSON ZEIGLER
23
A Professional Corporation
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Dated: June 20, 2022 By: _______________________________
25
Michael Shklovsky
26
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3
REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION
Exhibit 1
1
2
Marshall E. Bluestone, Esq. (SBN 151632)
BLUESTONE FAIRCLOTH & OLSON, LLP
1825 4th Street
F I L E D
Santa Rosa, CA 95404 MAY 03 2022
3 Telephone: 707-526-4250
Facsimile: 707-526-0347 Clerk of trie Superior Court of
California
County df Sqhoma
4 marshall @ bfolegal.com By Deputy Clerk
5 Attorneys for The Duggan Family Limited Partnership,
a California Limited Partnership
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SONOMA
10 SEAN DUGGAN, an individual, on his own Case No. SCV-268905
behalf and derivatively on behalf of the Duggan
11 Family Limited Partnership; EX PARTE STIPULATION FOR BRIEFING
SCHEDULE FOR PLAINTIFF’S MOTION FOR
12 APPOINTMENT OF RECEIVER, OSC RE
Plaintiffs,
v. APPOINTMENT AND TRO
13
14 LYNN DUGGAN, an individual; and DOES 1 Date: May 3, 2022
through 25, inclusive, Time: 10:30 a.m.
15 Dept.: 17
Defendants,
16
[UNLIMITED CIVIL]
17 -and-
ASSIGNED FOR ALL PURPOSES:
18 THE DUGGAN FAMILY LIMITED
PARTNERSHIP, a California Limited Judge: Arthur A. Wick
19 Partnership, KELLY MOFFAT, an individual, Department: 17
20
Nominal Defendants.
21
22
23
Plaintiff Sean Duggan and the Duggan Family Limited Partnership (“DFLP”) stipulate to the
24
25 following briefing schedule for Plaintiff Sean Duggan’s motion for appointment of a receiver, OSC
26 appointment of a receiver and TRO based upon the following facts:
27
28
SCV-268905: Stipulation to Briefing Schedule 1
ACTIVE 64618376V1
1 1. Plaintiff provided notice of seeking an ex parte appointment of receiver, OSC
2 appointment of a receiver and TRO on Friday, April 29, 2022 regarding the sale of DFLP real property
3
and distributions to partners.
4
2. After meeting and conferring between counsel, all parties 1 to this action agreed to shorten
5
time in the following briefing schedule instead of an ex parte hearing:
6
7 a. Plaintiff would file moving papers by May 3, 2022;
8 b. Defendants would file opposition papers by May 11, 2022;
9 c. Plaintiff would file any reply by May 13, 2022;
10 d. A hearing on the matter would be held on the Court’s calendar of May 18, 2022 or
11
the next available hearing date on the Court’s calendar to expedite the resolution of the motion regarding
12
the sale of real property of the DFLP.
13
3. Until the hearing is held by the Court, Defendant DFLP would not close escrow on any
14
15 real property held by the DFLP.
16
17 So Stipulated:
18 Bluestone Faircloth & Olson, LLP
19
By: //s. Marshall E. Bluestone
20 Marshall E. Bluestone, Attorneys for DFLP
21
22 Greenberg Traurig, LLP
23
24
By: /s/ Lisa C. McCurdy
25 Lisa McCurdy, Attorneys for Plaintiff
26
27
1
28 Mr. Bluestone confirmed with Defendant Lynn Dugan and Defendant Kelly Moffat’s attorneys this
stipulation was agreed to.
-
SCV 268905: Stipulation to Briefing Schedule 2
ACTIVE 64618376v1
1
ORDER
2
3
Based on the stipulation of the parties and good cause, the Court Orders Plaintiff Sean Duggan’s
4 motion for appointment of a receiver, OSC regarding appointment of receiver and for a TRO to be
5 briefed as follows:
6 Moving papers filed on May 3, 2022, opposition papers filed by May 11, 2022, and any reply
7
papers filed by May 13, 2022, and the hearing of this matter set for 18 _, 2022 at 3:00
8
pm.
9
It is further Ordered that Defendant DFLP shall not close escrow on any real property it owns
10
prior to the hearing of this matter.
12 t
13 Date: //ay 3 2022 .
14
7 ^ 1
Judge of the Superior Court
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SCV-268905: Stipulation to Briefing Schedule 3
ACTIVE 64618376v 1
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3 I am employed in the aforesaid county, State of California; I am over the age of 18 years and not
a party to the within action; my business address is 1840 Century Park East, Suite 1900, Los Angeles,
4 CA 90067-2121; my email address is cronkritec@gtIaw.com.
5 On the May 3, 2022, 1 served EX PARTE STIPULATION FOR BRIEFING SCHEDULE
FOR PLAINTIFF’S MOTION FOR APPOINTMENT OF RECEIVER, OSC RE
6 APPOINTMENT AND TRO on the interested parties in this action as follows:
7 Anne Olsen
8 Noland, Hamerly, Etienne & Hoss, APC
333 Salinas Street, P.O . Box 2510
9 Salinas, CA 93902
Email: aolsen@nheh.com
10
Attorneys for Defendant Lynn Duggan
11
12 Marshall E. Bluestone
Bluestone Faircloth & Olson, LLP
13 1825 4th Street
Santa Rosa, CA 95404
14 Email: marshall@bfolegal.com
Email: emilee@bfolegal.com
15
16 Attorneys for Defendant Duggan Family Limited Partnership
17 Michael Schklovsky
Anderson Zeigler, APC
18 50 Old Courthouse Square, 5 th FI.
19 Santa Rosa, CA 95404
Email: mshklovsky@andersonzeigler.com
20
Attorneys for Defendant Kelly Moffat
21
22
ia -
(BY E MAIL) I caused the above document(s) to be transmitted to the office(s) of the
23 -
addressee(s) listed above by electronic mail at the e mail address(es) set forth above per
agreement and consent of the addressee(s). The document was served electronically and the
24 transmission was reported complete and without error.
25 Ex !
7
(STATE) I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.
26
Executed on May 3, 2022, at Los Angeles, California.
27
28 Christine C. Cronkrite
1
PROOF OF SERVICE
Exhibit 2
1 Lisa C. McCurdy (SBN 228755)
Joy Chen (SBN 316842)
2 GREENBERG TRAURIG, LLP
1840 Century Park East, Suite 1900
3 Los Angeles, California 90067-2121
Telephone: (310) 586-7700
4 Facsimile: (310) 586-7800
mccurdyl@gtlaw.com
5 chenjoy@gtlaw.com
6 Attorneys for Plaintiff SEAN DUGGAN,
individually and derivatively on behalf of
7 the Duggan Family Limited Partnership
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SONOMA
11
SEAN DUGGAN, an individual, on his CASE NO. SCV-268905
12 own behalf and derivatively on behalf of
the Duggan Family Limited Partnership; Assigned for all purposes to Hon. Arthur A. Wick,
13 Dept. 17
Plaintiff,
14 PLAINTIFF’S NOTICE OF MOTION AND
v. MOTION FOR (I) APPOINTMENT OF
15 RECEIVER;AND (2) PRELIMINARY
16 LYNN DUGGAN, an individual; and DOES 1 INJUNCTION
through 25, inclusive,
17 [Declaration of Sean Duggan; and Declaration of
Defendants, Lisa C. McCurdy; Memorandum of Points and
18 Authorities filed concurrently herewith]
-and-
19 Date: May 18, 2022
THE DUGGAN FAMILY LIMITED Time: 3:00 PM
20 PARTNERSHIP, a California Limited Dept: 17
Partnership, KELLY MOFFAT, an individual,
21 Action filed: July 27, 2021
Nominal Defendants. Trial date: May 12, 2023
22
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24
25
26
27
28
PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR APPOINTMENT OF RECEIVER
ACTIVE 64636699v1
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE THAT, on May 18, 2022, at 3:00 PM in the above-captioned Court,
3 or as soon thereafter as may be heard, Plaintiff Sean Duggan will and hereby does move the Court for an
4 order:
5 (1) appointing a receiver (the “Receiver”) to take possession of the books and records of the
6 Partnership, including with respect to that certain real property described in the Complaint
7 (“Property”) and, in doing so, to assume control of the Partnership;
8 (2) empowering and authorizing the Receiver to review and analyze the propriety of Partnership
9 transactions in the last ten years, including but not limited to distribution decisions, and loan
10 repayments, and to report to the Court regarding the same;
11 (3) empowering, authorizing and requiring the Receiver to review the terms of any proposed
12 sale of the Property and to make a recommendation thereon to the Parties;
13 (4) entering a preliminary injunction during the pendency of this Action in aid of the Reciver,
14 and pursuant to California Rules of Court 3.1150 and California Code of Civil Procedure §
15 527(a), in aid of the Receiver, as follows:
16 a. requiring Defendant LYNN DUGGAN, as General Partner (“GP”) of the Duggan
17 Family Limited Partnership (“DFLP” or “the Partnership”) and all those acting in
18 concert with, for or on his behalf (collectively, “the GP”) to turn over, and to prevent
19 the GP from denying, interfering with or preventing the Receiver’s access to, the
20 Property as well as all books, records and accounts relating to the Property and the
21 Partnership;
22 b. enjoining the GP, his agents, servants and employees, and all persons acting under, in
23 concert with, through or for any of them from:
24 i. interfering with or hindering, in any way whatsoever, the Receiver, or his
25 agents, officers, employees and servants, in the performance of any duties
26 incident thereto;
27
28
1
PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR APPOINTMENT OF RECEIVER
ACTIVE 64636699v1
1 ii. transferring, concealing, destroying, defacing, or altering any of the
2 instruments, documents, books, records, or other writings relating to the
3 Partnership or Property, or any portion thereof; or
4 iii. selling, disposing of, transferring, encumbering, distributing, or otherwise
5 alienating or hypothecating any assets of the DFLP, except that the
6 Partnership may use cash on hand and/or proceeds from the sale of stocks and
7 bonds on an as-need basis to pay administration expenses without further
8 order of the Court; notwithstanding the foregoing, neither the Parties nor the
9 Court are approving such payments, all of which shall be subject to review in
10 the ordinary course; and
11 (5) Approving, pursuant to California Rule of Court 3.1178 and California Code of Civil
12 Procedure §§ 529 and 567(b), an undertaking by each of the applicant and the Receiver in the
13 amount of $2,500.
14 For clarity, Plaintiff agrees that, at least for now, Selway shall continue management of the
15 Property and to collect and deposit rents and any other income of the DFLP.
16 As further addressed in the Memorandum of Points and Authorities and the declarations filed in
17 support hereof, this Motion is based on at least the following grounds:
18 First, Plaintiff recently learned through his own investigation that the GP is now attempting to
19 sell the DFLP Property at a dramatically-reduced price of $10.5 million, down from $13 million, done
20 without agreement of, or even notice to, the limited partners. Thus, is appears that, without oversight,
21 the GP intends to sell off the Partnership asset at a bargain price. Whether the tactic is being used in the
22 hopes of ending the litigation, or to obtain a quick payout, a receiver is appropriate here to oversee any
23 sale, ensure that the Partnership obtains full and fair value for the Property and to ensure that the partner
24 interests are thereby protected.
25 Second, having just recently received the partnership tax returns, it is apparent that, in fact, the
26 Partnership is failing to properly account for and allocate the partnership points in the manner required
27 by the Partnership Agreement Amendment following the defaults discussed herein, resulting in
28 improperly calculated distributions as discussed further herein. And (additionally and separately), the
2
PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR APPOINTMENT OF RECEIVER
ACTIVE 64636699v1
1 tax return demonstrates that Plaintiff (and all Limited Partners) has not received the distributions to
2 which he is entitled per the tax return, even leaving aside the incorrect partnership point allocation.
3 Without the immediate appointment of a receiver, the Partnership is at risk of having its real
4 property asset devalued and sold off, putting Plaintiff in the unenviable (and, indeed, impossible)
5 position of remedying the damage already done to an asset that consists of real property. In addition,
6 unless a receiver is appointed by this Court to take control of and oversee management and operation of
7 the Partnership, the Partnership will be materially prejudiced; in that, the Partnership assets are being
8 placed at risk by being utilized for the personal benefit of the GP who, additionally, has for years been
9 providing inconsistent and conflicting information regarding the status and management of the
10 Partnership and the Property, its income and distributions, and the Partnership is making distributions
11 and transfers that are impermissible under both the original Partnership Agreement and the Partnership
12 Agreement as amended. At the same time, the Property is being marketed for sale and, by way of an
13 impermissible transfer of a General Partnership point, is being managed contrary to the Partnership
14 Agreement and related governing documents. Because Plaintiff’s efforts to resolve these concerns
15 informally have been rejected, and because the Partnership is being managed by those whose
16 wrongdoing is the subject of this litigation, Plaintiff and the Partnership have no plain, clear, speedy,
17 and adequate remedy at law for the injuries that are threatened and currently being inflicted.
18 The appointment of a receiver would in no way stop or interfere with the operation of any
19 business on the Property. Accordingly, Plaintiff respectfully requests that the Court enter an order
20 appointing David P. Stapleton of Stapleton Group as receiver and issuing the requested restraining order
21 enjoining the Defendants from interfering with the Receiver carrying out his duties under the
22 Appointment Order and any further orders of the Court.
23 This motion is based upon the attached Memorandum of Points and Authorities, the Declarations
24 of Sean Duggan and Lisa McCurdy, the Complaint on file herein, and upon such other evidence as may
25 be presented at or before the Court’s hearing on this motion.
26
27
28
3
PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR APPOINTMENT OF RECEIVER
ACTIVE 64636699v1
1 DATED: May 3, 2022 GREENBERG TRAURIG, LLP
2
3 By: /s/ Lisa C. McCurdy
Lisa C. McCurdy
4 Attorneys for Plaintiff, SEAN DUGGAN
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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR APPOINTMENT OF RECEIVER
ACTIVE 64636699v1
Exhibit 3
1 Lisa C. McCurdy (SBN 228755)
Joy Chen (SBN 316842)
2 GREENBERG TRAURIG, LLP
1840 Century Park East, Suite 1900
3 Los Angeles, California 90067-2121
Telephone: (310) 586-7700
4 Facsimile: (310) 586-7800
mccurdyl@gtlaw.com
5 chenjoy@gtlaw.com
6 Attorneys for Plaintiff SEAN DUGGAN,
individually and derivatively on behalf of
7 the Duggan Family Limited Partnership
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SONOMA
11
SEAN DUGGAN, an individual, on his CASE NO. SCV-268905
12 own behalf and derivatively on behalf of
the Duggan Family Limited Partnership; Assigned for all purposes to Hon. Arthur A. Wick,
13 Dept. 17
Plaintiff,
14 MEMORANDUM OF POINTS AND
v. AUTHORITIES IN SUPPORT OF
15 PLAINTIFF’S MOTION FOR (I)
16 LYNN DUGGAN, an individual; and DOES 1 APPOINTMENT OF RECEIVER; AND
through 25, inclusive, (II) PRELIMINARY INJUNCTION
17
Defendants, [Declaration of Sean Duggan; and Declaration of
18 Lisa C. McCurdy filed concurrently herewith]
-and-
19 Date: May 18, 2022
THE DUGGAN FAMILY LIMITED Time: 3:00 PM
20 PARTNERSHIP, a California Limited Dept: 17
Partnership, KELLY MOFFAT, an individual,
21 Action filed: July 27, 2021
Nominal Defendants. Trial date: May 12, 2023
22
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25
26
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MEMORANDUM OF POINTS AND AUTHORITIES (RE RECEIVER MOTION)
ACTIVE 64635853v1
TABLE OF CONTENTS
1
2 I. INTRODUCTION AND SUMMARY OF MOTION ............................................................... 1
II. STATEMENT OF FACTS .......................................................................................................... 3
3
a. The Partnership’s Formation and First Amendment. .................................................. 3
4
b. Lynn Duggan Cuts Off Distributions.............................................................................. 5
5 c. Lynn And Moffat Enter Into An Agreement For The Sale Of A 1% General
Partner Interest, Impermissibly Altering The Terms Of The Partnership
6
Amendment. ...................................................................................................................... 5
7 d. Lynn Again Halts Distribution in 2021........................................................................... 6
8 e. Lynn and Kelly Re-Execute an Impermissible Sale of a General Partnership
Interest. .............................................................................................................................. 8
9
f. Despite Multiple Requests, The Partnership Has Failed To Offer
10 Documentation For The Source Of Funds For The Supposed G.P. Loan
Payoff. ................................................................................................................................ 8
11
g. Subsequent and Pre-Pandemic Distributions Improperly Calculated. ....................... 9
12 III. THE COURT SHOULD APPOINT A RECEIVER AND ENTER A
13 PRELIMINARY INJUNCTION PENDING RESOLUTION OF THIS ACTION, TO
PROTECT THE PARTNERSHIP AND ITS ASSETS .......................................................... 11
14 a. This Court May Appoint A Receiver In The Best Interests of the Partnership
15 and its Partners, and to Preserve the Status Quo. ....................................................... 13
IV. A SUPPORTING INJUNCTION ALSO IS REQUIRED ...................................................... 15
16
V. PROPOSED RECEIVER AND BOND AMOUNT ................................................................ 18
17 VI. CONCLUSION ........................................................................................................................... 18
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28 1
MEMORANDUM OF POINTS AND AUTHORITIES (RECEIVER MOTION)
ACTIVE 64635853v1
1 TABLE OF AUTHORITIES
2
Cases Page(s)
3
Butt v. State of California
4 (1992) 4 Cal.4th 668 ................................................................................................................17
5 Heckmann v. Ahmanson
(1985) 168 Cal. App. 3d 119 .....................................................................................................2
6
IT Corp. v. County of Imperial
7 (1983) 35 Cal.3d 63 .................................................................................................................16
8
Lenard v. Edmonds
9 (1957) 151 Cal. App. 2d 764 .....................................................................................................2
10 Marsch v. Williams
(Cal. Ct. App. 1994) 23 Cal. App. 4th 238 ..............................................................................11
11
Morand v. Superior Court
12 (1974) 38 Cal. App. 3d 347 .....................................................................................................13
13
Robbins v. Super. Ct.
14 (1985) 38 Cal.3d 199 ...............................................................................................................17
15 Sachs v. Killeen
(1958) 165 Cal.App.2d 205 .........................................................................................11, 13, 14
16
Turner v. Superior Court
17 (Cal. Ct. App. 1977) 72 Cal. App. 3d 804 ...............................................................................11
18
White v. Davis
19 (2003) 30 Cal.4th 528 ..............................................................................................................16
20 Statutes
21 Cal. Code Civ. Proc. § 526(a)(2) ...................................................................................................17
22 Cal. Code Civ. Proc. § 564 ........................................................................................................2, 11
23 California Code of Civil Procedure § 526(a) ...........................................................................16, 17
24 California Code of Civil Procedure § 527(a) .................................................................................15
25
California Code of Civil Procedure §§ 529 and 567(b) .................................................................18
26
California Code of Civil Procedure § 564(b)(9) ......................................................................11, 13
27
Code of Civil Procedure § 564(b)(1) .........................................................................................2, 13
28 1
MEMORANDUM OF POINTS AND AUTHORITIES (RECEIVER MOTION)
ACTIVE 64635853v1
Code of Civil Procedure § 564, subd. (b) ......................................................................................11
1
2 Court Rules
3 California Rule of Court 3.1177 ....................................................................................................18
4 California Rules of Court 3.1150 ...................................................................................................15
5 California Rules of Court 3.1178 ...................................................................................................18
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MEMORANDUM OF POINTS AND AUTHORITIES (RECEIVER MOTION)
ACTIVE 64635853v1
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION AND SUMMARY OF MOTION
3 This case involves multiple breaches and defaults by the general partner (Lynn Duggan or “GP”)
4 of the Duggan Family Limited Partnership (“DLFP” or “Partnership”) of the DLFP Partnership
5 Agreement, a First Amendment to that Agreement (the “Amendment”) and related documents, 1 each of
6 which adversely impact the operation of the Partnership and its assets, which primarily consist of
7 commercial real property, and are harming the partners of the Partnership.
8 This motion is necessary, and appointment of a receiver appropriate, because:
9 • Plaintiff recently learned through his own investigation that the GP is now attempting to sell
10 the DFLP Property at a dramatically-reduced price of $10.5 million, down from $13 million,
11 done without agreement of, or even notice to, the limited partners. Thus, is appears that,
12 without oversight, the GP intends to sell off the Partnership asset at a bargain price. Whether
13 the tactic is being used in the hopes of ending the litigation, or to obtain a quick payout, a
14 receiver is appropriate here to oversee any sale, ensure that the Partnership obtains full and
15 fair value for the Property and to ensure that the partner interests are thereby protected, and
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1 Michael Shklovsky, Esq. (Bar No. 255893) ANDERSON ZEIGLER 2 A Professional Corporation 50 Old Courthouse Square, 5th Floor 3 Santa Rosa, CA 95404 Telephone: 707/545-4910 4 Facsimile: 707/544-0260 Email: mshklovsky@andersonzeigler.com 5 Attorneys for Defendant Kelly Moffat 6 7 SUPERIOR COURT, SONOMA COUNTY, CALIFORNIA 8 Case No. SCV-268905 9 SEAN DUGGAN, an individual, on his own behalf and derivatively on REQUEST FOR JUDICIAL NOTICE IN A PROFESSIONAL CORPORATION, ATTORNEYS AT LAW P.O. BOX 1498, SANTA ROSA, CALIFORNIA 95402-1498 10 behalf of the Duggan Family OPPOSITION TO PLAINTIFF’S EX PARTE Limited Partnership; APPLICATION FOR (1) APPOINTMENT FAX (707) 544-0260 11 OF RECEIVER; AND (2) PRELIMINARY ANDERSON ZEIGLER Plaintiff, INJUNCTION 12 vs. Date: June 21, 2022 13 LYNN DUGGAN, an individual; Time: 10:00 a.m. and DOES 1 through 25, inclusive, Dept: 17 TEL (707) 545-4910 14 Defendants, 15 [UNLIMITED CIVIL] - and – 16 Jury Trial Demanded THE DUGGAN FAMILY LIMITED 17 PARTNERSHIP, a California ASSIGNED FOR ALL PURPOSES: Limited Partnership; and KELLY 18 MOFFAT, an individual, Judge: Bradford DeMeo Department: 17 19 Nominal Defendants. 20 21 22 23 Defendants Lynn Duggan, The Duggan Family Limited Partnership and Kelly Moffat 24 hereby request that the Court take judicial notice of the documents below, pursuant to 25 Evidence Code sections 452(c), 452(d) and 453. True and correct copies of each document 26 are attached hereto as Exhibits 1 through 20. 27 28 1 REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION 1 Exh. Request for Judicial Notice Authority Ruling 2 1. 05/03/22 Ex Parte Stipulation for Briefing Evid. Code §§ 452(c), Granted _____ 3 Schedule for Plaintiff’s Motion for 452(d) and 453 Denied _____ Appointment of Receiver, OSC re 4 Appointment and TRO 5 2. 05/03/22 Plaintiff’s Notice of Motion and Evid. Code §§ 452(c), Granted _____ Motion for (1) Appointment of Receiver; 452(d) and 453 Denied _____ 6 and (2) Preliminary Injunction 7 3. 05/03/22 Plaintiff’s Memorandum of Evid. Code §§ 452(c), Granted _____ Points and Authorities in Support of 452(d) and 453 Denied _____ 8 Plaintiff’s Motion for (1) Appointment of Receiver; and (2) Preliminary Injunction 9 4. 05/03/22 Declaration of Sean Duggan in Evid. Code §§ 452(c), Granted _____ 10 Support of Motion for (1) Appointment of 452(d) and 453 Denied _____ Receiver; and (2) Preliminary Injunction 11 5. 05/03/22 Declaration of Lisa C. McCurdy Evid. Code §§ 452(c), Granted _____ 12 in Support of Motion for (1) Appointment 452(d) and 453 Denied _____ of Receiver; and (2) Preliminary 13 Injunction 14 6. 05/03/22 [Proposed] Order Granting Evid. Code §§ 452(c), Granted _____ Motion for Appointment of Receiver and 452(d) and 453 Denied _____ 15 Preliminary Injunction 16 7. 05/03/22 Omnibus Proof of Service re Evid. Code §§ 452(c), Granted _____ Plaintiff’s Motion for (1) Appointment of 452(d) and 453 Denied _____ 17 Receiver; and (2) Preliminary Injunction 18 8. 05/11/22 Opposition to Plaintiff’s Motion Evid. Code §§ 452(c), Granted _____ 19 for (1) Appointment of Receiver; and (2) 452(d) and 453 Denied _____ Preliminary Injunction 20 9. 05/11/22 Declaration of Lynn Duggan in Evid. Code §§ 452(c), Granted _____ 21 Support of Opposition to Plaintiff’s 452(d) and 453 Denied _____ Motion for (1) Appointment of Receiver; 22 and (2) Preliminary Injunction 23 10. 05/11/22 Declaration of Kelly Moffat in Evid. Code §§ 452(c), Granted _____ 24 Support of Opposition to Plaintiff’s 452(d) and 453 Denied _____ Motion for (1) Appointment of Receiver; 25 and (2) Preliminary Injunction 26 11. 05/11/22 Declaration of C. Edward Evid. Code §§ 452(c), Granted _____ Turner in Support of Opposition to 452(d) and 453 Denied _____ 27 Plaintiff’s Motion for (1) Appointment of Receiver; and (2) Preliminary Injunction 28 2 REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION 12. 05/11/22 Declaration of Leon Geisberg in Evid. Code §§ 452(c), Granted _____ 1 Support of Opposition to Plaintiff’s 452(d) and 453 Denied _____ Motion for (1) Appointment of Receiver; 2 and (2) Preliminary Injunction 3 13. 12/09/21 Declaration of Scott Shapiro of Evid. Code §§ 452(c), Granted _____ the Poppy Bank in Support of Opposition 452(d) and 453 Denied _____ 4 to Plaintiff’s Motion for (1) Appointment of Receiver; and (2) Preliminary 5 Injunction [filed on 05/11/22] 6 14. 05/11/22 Proof of Service re Opposition Evid. Code §§ 452(c), Granted _____ to Plaintiff’s Motion for (1) Appointment 452(d) and 453 Denied _____ 7 of Receiver; and (2) Preliminary 8 Injunction 9 15. 05/13/22 Plaintiff’s Reply in Support of Evid. Code §§ 452(c), Granted _____ Motion for (1) Appointment of Receiver; 452(d) and 453 Denied _____ 10 and (2) Preliminary Injunction 11 16. 05/13/22 Declaration of Sean Duggan in Evid. Code §§ 452(c), Granted _____ Support of Reply in Support of Motion 452(d) and 453 Denied _____ 12 for (1) Appointment of Receiver; and (2) Preliminary Injunction 13 17. 05/13/22 Supplemental Declaration of Evid. Code §§ 452(c), Granted _____ 14 Lynn Duggan in Support of Opposition to 452(d) and 453 Denied _____ Plaintiff’s Motion for (1) Appointment of 15 Receiver; and (2) Preliminary Injunction 16 18. 05/16/22 Defendants’ Objection to Evid. Code §§ 452(c), Granted _____ Evidence 452(d) and 453 Denied _____ 17 19. 05/17/22 Supplemental Reply Declaration Evid. Code §§ 452(c), Granted _____ 18 of Sean Duggan in Support of Motion for 452(d) and 453 Denied _____ (1) Appointment of Receiver; and (2) 19 Preliminary Injunction 20 20. 05/19/22 Order After Hearing – May 18, Evid. Code §§ 452(c), Granted _____ 2022 452(d) and 453 Denied _____ 21 22 ANDERSON ZEIGLER 23 A Professional Corporation 24 Dated: June 20, 2022 By: _______________________________ 25 Michael Shklovsky 26 27 28 3 REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION Exhibit 1 1 2 Marshall E. Bluestone, Esq. (SBN 151632) BLUESTONE FAIRCLOTH & OLSON, LLP 1825 4th Street F I L E D Santa Rosa, CA 95404 MAY 03 2022 3 Telephone: 707-526-4250 Facsimile: 707-526-0347 Clerk of trie Superior Court of California County df Sqhoma 4 marshall @ bfolegal.com By Deputy Clerk 5 Attorneys for The Duggan Family Limited Partnership, a California Limited Partnership 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SONOMA 10 SEAN DUGGAN, an individual, on his own Case No. SCV-268905 behalf and derivatively on behalf of the Duggan 11 Family Limited Partnership; EX PARTE STIPULATION FOR BRIEFING SCHEDULE FOR PLAINTIFF’S MOTION FOR 12 APPOINTMENT OF RECEIVER, OSC RE Plaintiffs, v. APPOINTMENT AND TRO 13 14 LYNN DUGGAN, an individual; and DOES 1 Date: May 3, 2022 through 25, inclusive, Time: 10:30 a.m. 15 Dept.: 17 Defendants, 16 [UNLIMITED CIVIL] 17 -and- ASSIGNED FOR ALL PURPOSES: 18 THE DUGGAN FAMILY LIMITED PARTNERSHIP, a California Limited Judge: Arthur A. Wick 19 Partnership, KELLY MOFFAT, an individual, Department: 17 20 Nominal Defendants. 21 22 23 Plaintiff Sean Duggan and the Duggan Family Limited Partnership (“DFLP”) stipulate to the 24 25 following briefing schedule for Plaintiff Sean Duggan’s motion for appointment of a receiver, OSC 26 appointment of a receiver and TRO based upon the following facts: 27 28 SCV-268905: Stipulation to Briefing Schedule 1 ACTIVE 64618376V1 1 1. Plaintiff provided notice of seeking an ex parte appointment of receiver, OSC 2 appointment of a receiver and TRO on Friday, April 29, 2022 regarding the sale of DFLP real property 3 and distributions to partners. 4 2. After meeting and conferring between counsel, all parties 1 to this action agreed to shorten 5 time in the following briefing schedule instead of an ex parte hearing: 6 7 a. Plaintiff would file moving papers by May 3, 2022; 8 b. Defendants would file opposition papers by May 11, 2022; 9 c. Plaintiff would file any reply by May 13, 2022; 10 d. A hearing on the matter would be held on the Court’s calendar of May 18, 2022 or 11 the next available hearing date on the Court’s calendar to expedite the resolution of the motion regarding 12 the sale of real property of the DFLP. 13 3. Until the hearing is held by the Court, Defendant DFLP would not close escrow on any 14 15 real property held by the DFLP. 16 17 So Stipulated: 18 Bluestone Faircloth & Olson, LLP 19 By: //s. Marshall E. Bluestone 20 Marshall E. Bluestone, Attorneys for DFLP 21 22 Greenberg Traurig, LLP 23 24 By: /s/ Lisa C. McCurdy 25 Lisa McCurdy, Attorneys for Plaintiff 26 27 1 28 Mr. Bluestone confirmed with Defendant Lynn Dugan and Defendant Kelly Moffat’s attorneys this stipulation was agreed to. - SCV 268905: Stipulation to Briefing Schedule 2 ACTIVE 64618376v1 1 ORDER 2 3 Based on the stipulation of the parties and good cause, the Court Orders Plaintiff Sean Duggan’s 4 motion for appointment of a receiver, OSC regarding appointment of receiver and for a TRO to be 5 briefed as follows: 6 Moving papers filed on May 3, 2022, opposition papers filed by May 11, 2022, and any reply 7 papers filed by May 13, 2022, and the hearing of this matter set for 18 _, 2022 at 3:00 8 pm. 9 It is further Ordered that Defendant DFLP shall not close escrow on any real property it owns 10 prior to the hearing of this matter. 12 t 13 Date: //ay 3 2022 . 14 7 ^ 1 Judge of the Superior Court 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SCV-268905: Stipulation to Briefing Schedule 3 ACTIVE 64618376v 1 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 I am employed in the aforesaid county, State of California; I am over the age of 18 years and not a party to the within action; my business address is 1840 Century Park East, Suite 1900, Los Angeles, 4 CA 90067-2121; my email address is cronkritec@gtIaw.com. 5 On the May 3, 2022, 1 served EX PARTE STIPULATION FOR BRIEFING SCHEDULE FOR PLAINTIFF’S MOTION FOR APPOINTMENT OF RECEIVER, OSC RE 6 APPOINTMENT AND TRO on the interested parties in this action as follows: 7 Anne Olsen 8 Noland, Hamerly, Etienne & Hoss, APC 333 Salinas Street, P.O . Box 2510 9 Salinas, CA 93902 Email: aolsen@nheh.com 10 Attorneys for Defendant Lynn Duggan 11 12 Marshall E. Bluestone Bluestone Faircloth & Olson, LLP 13 1825 4th Street Santa Rosa, CA 95404 14 Email: marshall@bfolegal.com Email: emilee@bfolegal.com 15 16 Attorneys for Defendant Duggan Family Limited Partnership 17 Michael Schklovsky Anderson Zeigler, APC 18 50 Old Courthouse Square, 5 th FI. 19 Santa Rosa, CA 95404 Email: mshklovsky@andersonzeigler.com 20 Attorneys for Defendant Kelly Moffat 21 22 ia - (BY E MAIL) I caused the above document(s) to be transmitted to the office(s) of the 23 - addressee(s) listed above by electronic mail at the e mail address(es) set forth above per agreement and consent of the addressee(s). The document was served electronically and the 24 transmission was reported complete and without error. 25 Ex ! 7 (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 26 Executed on May 3, 2022, at Los Angeles, California. 27 28 Christine C. Cronkrite 1 PROOF OF SERVICE Exhibit 2 1 Lisa C. McCurdy (SBN 228755) Joy Chen (SBN 316842) 2 GREENBERG TRAURIG, LLP 1840 Century Park East, Suite 1900 3 Los Angeles, California 90067-2121 Telephone: (310) 586-7700 4 Facsimile: (310) 586-7800 mccurdyl@gtlaw.com 5 chenjoy@gtlaw.com 6 Attorneys for Plaintiff SEAN DUGGAN, individually and derivatively on behalf of 7 the Duggan Family Limited Partnership 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SONOMA 11 SEAN DUGGAN, an individual, on his CASE NO. SCV-268905 12 own behalf and derivatively on behalf of the Duggan Family Limited Partnership; Assigned for all purposes to Hon. Arthur A. Wick, 13 Dept. 17 Plaintiff, 14 PLAINTIFF’S NOTICE OF MOTION AND v. MOTION FOR (I) APPOINTMENT OF 15 RECEIVER;AND (2) PRELIMINARY 16 LYNN DUGGAN, an individual; and DOES 1 INJUNCTION through 25, inclusive, 17 [Declaration of Sean Duggan; and Declaration of Defendants, Lisa C. McCurdy; Memorandum of Points and 18 Authorities filed concurrently herewith] -and- 19 Date: May 18, 2022 THE DUGGAN FAMILY LIMITED Time: 3:00 PM 20 PARTNERSHIP, a California Limited Dept: 17 Partnership, KELLY MOFFAT, an individual, 21 Action filed: July 27, 2021 Nominal Defendants. Trial date: May 12, 2023 22 23 24 25 26 27 28 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR APPOINTMENT OF RECEIVER ACTIVE 64636699v1 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE THAT, on May 18, 2022, at 3:00 PM in the above-captioned Court, 3 or as soon thereafter as may be heard, Plaintiff Sean Duggan will and hereby does move the Court for an 4 order: 5 (1) appointing a receiver (the “Receiver”) to take possession of the books and records of the 6 Partnership, including with respect to that certain real property described in the Complaint 7 (“Property”) and, in doing so, to assume control of the Partnership; 8 (2) empowering and authorizing the Receiver to review and analyze the propriety of Partnership 9 transactions in the last ten years, including but not limited to distribution decisions, and loan 10 repayments, and to report to the Court regarding the same; 11 (3) empowering, authorizing and requiring the Receiver to review the terms of any proposed 12 sale of the Property and to make a recommendation thereon to the Parties; 13 (4) entering a preliminary injunction during the pendency of this Action in aid of the Reciver, 14 and pursuant to California Rules of Court 3.1150 and California Code of Civil Procedure § 15 527(a), in aid of the Receiver, as follows: 16 a. requiring Defendant LYNN DUGGAN, as General Partner (“GP”) of the Duggan 17 Family Limited Partnership (“DFLP” or “the Partnership”) and all those acting in 18 concert with, for or on his behalf (collectively, “the GP”) to turn over, and to prevent 19 the GP from denying, interfering with or preventing the Receiver’s access to, the 20 Property as well as all books, records and accounts relating to the Property and the 21 Partnership; 22 b. enjoining the GP, his agents, servants and employees, and all persons acting under, in 23 concert with, through or for any of them from: 24 i. interfering with or hindering, in any way whatsoever, the Receiver, or his 25 agents, officers, employees and servants, in the performance of any duties 26 incident thereto; 27 28 1 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR APPOINTMENT OF RECEIVER ACTIVE 64636699v1 1 ii. transferring, concealing, destroying, defacing, or altering any of the 2 instruments, documents, books, records, or other writings relating to the 3 Partnership or Property, or any portion thereof; or 4 iii. selling, disposing of, transferring, encumbering, distributing, or otherwise 5 alienating or hypothecating any assets of the DFLP, except that the 6 Partnership may use cash on hand and/or proceeds from the sale of stocks and 7 bonds on an as-need basis to pay administration expenses without further 8 order of the Court; notwithstanding the foregoing, neither the Parties nor the 9 Court are approving such payments, all of which shall be subject to review in 10 the ordinary course; and 11 (5) Approving, pursuant to California Rule of Court 3.1178 and California Code of Civil 12 Procedure §§ 529 and 567(b), an undertaking by each of the applicant and the Receiver in the 13 amount of $2,500. 14 For clarity, Plaintiff agrees that, at least for now, Selway shall continue management of the 15 Property and to collect and deposit rents and any other income of the DFLP. 16 As further addressed in the Memorandum of Points and Authorities and the declarations filed in 17 support hereof, this Motion is based on at least the following grounds: 18 First, Plaintiff recently learned through his own investigation that the GP is now attempting to 19 sell the DFLP Property at a dramatically-reduced price of $10.5 million, down from $13 million, done 20 without agreement of, or even notice to, the limited partners. Thus, is appears that, without oversight, 21 the GP intends to sell off the Partnership asset at a bargain price. Whether the tactic is being used in the 22 hopes of ending the litigation, or to obtain a quick payout, a receiver is appropriate here to oversee any 23 sale, ensure that the Partnership obtains full and fair value for the Property and to ensure that the partner 24 interests are thereby protected. 25 Second, having just recently received the partnership tax returns, it is apparent that, in fact, the 26 Partnership is failing to properly account for and allocate the partnership points in the manner required 27 by the Partnership Agreement Amendment following the defaults discussed herein, resulting in 28 improperly calculated distributions as discussed further herein. And (additionally and separately), the 2 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR APPOINTMENT OF RECEIVER ACTIVE 64636699v1 1 tax return demonstrates that Plaintiff (and all Limited Partners) has not received the distributions to 2 which he is entitled per the tax return, even leaving aside the incorrect partnership point allocation. 3 Without the immediate appointment of a receiver, the Partnership is at risk of having its real 4 property asset devalued and sold off, putting Plaintiff in the unenviable (and, indeed, impossible) 5 position of remedying the damage already done to an asset that consists of real property. In addition, 6 unless a receiver is appointed by this Court to take control of and oversee management and operation of 7 the Partnership, the Partnership will be materially prejudiced; in that, the Partnership assets are being 8 placed at risk by being utilized for the personal benefit of the GP who, additionally, has for years been 9 providing inconsistent and conflicting information regarding the status and management of the 10 Partnership and the Property, its income and distributions, and the Partnership is making distributions 11 and transfers that are impermissible under both the original Partnership Agreement and the Partnership 12 Agreement as amended. At the same time, the Property is being marketed for sale and, by way of an 13 impermissible transfer of a General Partnership point, is being managed contrary to the Partnership 14 Agreement and related governing documents. Because Plaintiff’s efforts to resolve these concerns 15 informally have been rejected, and because the Partnership is being managed by those whose 16 wrongdoing is the subject of this litigation, Plaintiff and the Partnership have no plain, clear, speedy, 17 and adequate remedy at law for the injuries that are threatened and currently being inflicted. 18 The appointment of a receiver would in no way stop or interfere with the operation of any 19 business on the Property. Accordingly, Plaintiff respectfully requests that the Court enter an order 20 appointing David P. Stapleton of Stapleton Group as receiver and issuing the requested restraining order 21 enjoining the Defendants from interfering with the Receiver carrying out his duties under the 22 Appointment Order and any further orders of the Court. 23 This motion is based upon the attached Memorandum of Points and Authorities, the Declarations 24 of Sean Duggan and Lisa McCurdy, the Complaint on file herein, and upon such other evidence as may 25 be presented at or before the Court’s hearing on this motion. 26 27 28 3 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR APPOINTMENT OF RECEIVER ACTIVE 64636699v1 1 DATED: May 3, 2022 GREENBERG TRAURIG, LLP 2 3 By: /s/ Lisa C. McCurdy Lisa C. McCurdy 4 Attorneys for Plaintiff, SEAN DUGGAN 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR APPOINTMENT OF RECEIVER ACTIVE 64636699v1 Exhibit 3 1 Lisa C. McCurdy (SBN 228755) Joy Chen (SBN 316842) 2 GREENBERG TRAURIG, LLP 1840 Century Park East, Suite 1900 3 Los Angeles, California 90067-2121 Telephone: (310) 586-7700 4 Facsimile: (310) 586-7800 mccurdyl@gtlaw.com 5 chenjoy@gtlaw.com 6 Attorneys for Plaintiff SEAN DUGGAN, individually and derivatively on behalf of 7 the Duggan Family Limited Partnership 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SONOMA 11 SEAN DUGGAN, an individual, on his CASE NO. SCV-268905 12 own behalf and derivatively on behalf of the Duggan Family Limited Partnership; Assigned for all purposes to Hon. Arthur A. Wick, 13 Dept. 17 Plaintiff, 14 MEMORANDUM OF POINTS AND v. AUTHORITIES IN SUPPORT OF 15 PLAINTIFF’S MOTION FOR (I) 16 LYNN DUGGAN, an individual; and DOES 1 APPOINTMENT OF RECEIVER; AND through 25, inclusive, (II) PRELIMINARY INJUNCTION 17 Defendants, [Declaration of Sean Duggan; and Declaration of 18 Lisa C. McCurdy filed concurrently herewith] -and- 19 Date: May 18, 2022 THE DUGGAN FAMILY LIMITED Time: 3:00 PM 20 PARTNERSHIP, a California Limited Dept: 17 Partnership, KELLY MOFFAT, an individual, 21 Action filed: July 27, 2021 Nominal Defendants. Trial date: May 12, 2023 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES (RE RECEIVER MOTION) ACTIVE 64635853v1 TABLE OF CONTENTS 1 2 I. INTRODUCTION AND SUMMARY OF MOTION ............................................................... 1 II. STATEMENT OF FACTS .......................................................................................................... 3 3 a. The Partnership’s Formation and First Amendment. .................................................. 3 4 b. Lynn Duggan Cuts Off Distributions.............................................................................. 5 5 c. Lynn And Moffat Enter Into An Agreement For The Sale Of A 1% General Partner Interest, Impermissibly Altering The Terms Of The Partnership 6 Amendment. ...................................................................................................................... 5 7 d. Lynn Again Halts Distribution in 2021........................................................................... 6 8 e. Lynn and Kelly Re-Execute an Impermissible Sale of a General Partnership Interest. .............................................................................................................................. 8 9 f. Despite Multiple Requests, The Partnership Has Failed To Offer 10 Documentation For The Source Of Funds For The Supposed G.P. Loan Payoff. ................................................................................................................................ 8 11 g. Subsequent and Pre-Pandemic Distributions Improperly Calculated. ....................... 9 12 III. THE COURT SHOULD APPOINT A RECEIVER AND ENTER A 13 PRELIMINARY INJUNCTION PENDING RESOLUTION OF THIS ACTION, TO PROTECT THE PARTNERSHIP AND ITS ASSETS .......................................................... 11 14 a. This Court May Appoint A Receiver In The Best Interests of the Partnership 15 and its Partners, and to Preserve the Status Quo. ....................................................... 13 IV. A SUPPORTING INJUNCTION ALSO IS REQUIRED ...................................................... 15 16 V. PROPOSED RECEIVER AND BOND AMOUNT ................................................................ 18 17 VI. CONCLUSION ........................................................................................................................... 18 18 19 20 21 22 23 24 25 26 27 28 1 MEMORANDUM OF POINTS AND AUTHORITIES (RECEIVER MOTION) ACTIVE 64635853v1 1 TABLE OF AUTHORITIES 2 Cases Page(s) 3 Butt v. State of California 4 (1992) 4 Cal.4th 668 ................................................................................................................17 5 Heckmann v. Ahmanson (1985) 168 Cal. App. 3d 119 .....................................................................................................2 6 IT Corp. v. County of Imperial 7 (1983) 35 Cal.3d 63 .................................................................................................................16 8 Lenard v. Edmonds 9 (1957) 151 Cal. App. 2d 764 .....................................................................................................2 10 Marsch v. Williams (Cal. Ct. App. 1994) 23 Cal. App. 4th 238 ..............................................................................11 11 Morand v. Superior Court 12 (1974) 38 Cal. App. 3d 347 .....................................................................................................13 13 Robbins v. Super. Ct. 14 (1985) 38 Cal.3d 199 ...............................................................................................................17 15 Sachs v. Killeen (1958) 165 Cal.App.2d 205 .........................................................................................11, 13, 14 16 Turner v. Superior Court 17 (Cal. Ct. App. 1977) 72 Cal. App. 3d 804 ...............................................................................11 18 White v. Davis 19 (2003) 30 Cal.4th 528 ..............................................................................................................16 20 Statutes 21 Cal. Code Civ. Proc. § 526(a)(2) ...................................................................................................17 22 Cal. Code Civ. Proc. § 564 ........................................................................................................2, 11 23 California Code of Civil Procedure § 526(a) ...........................................................................16, 17 24 California Code of Civil Procedure § 527(a) .................................................................................15 25 California Code of Civil Procedure §§ 529 and 567(b) .................................................................18 26 California Code of Civil Procedure § 564(b)(9) ......................................................................11, 13 27 Code of Civil Procedure § 564(b)(1) .........................................................................................2, 13 28 1 MEMORANDUM OF POINTS AND AUTHORITIES (RECEIVER MOTION) ACTIVE 64635853v1 Code of Civil Procedure § 564, subd. (b) ......................................................................................11 1 2 Court Rules 3 California Rule of Court 3.1177 ....................................................................................................18 4 California Rules of Court 3.1150 ...................................................................................................15 5 California Rules of Court 3.1178 ...................................................................................................18 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 MEMORANDUM OF POINTS AND AUTHORITIES (RECEIVER MOTION) ACTIVE 64635853v1 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION AND SUMMARY OF MOTION 3 This case involves multiple breaches and defaults by the general partner (Lynn Duggan or “GP”) 4 of the Duggan Family Limited Partnership (“DLFP” or “Partnership”) of the DLFP Partnership 5 Agreement, a First Amendment to that Agreement (the “Amendment”) and related documents, 1 each of 6 which adversely impact the operation of the Partnership and its assets, which primarily consist of 7 commercial real property, and are harming the partners of the Partnership. 8 This motion is necessary, and appointment of a receiver appropriate, because: 9 • Plaintiff recently learned through his own investigation that the GP is now attempting to sell 10 the DFLP Property at a dramatically-reduced price of $10.5 million, down from $13 million, 11 done without agreement of, or even notice to, the limited partners. Thus, is appears that, 12 without oversight, the GP intends to sell off the Partnership asset at a bargain price. Whether 13 the tactic is being used in the hopes of ending the litigation, or to obtain a quick payout, a 14 receiver is appropriate here to oversee any sale, ensure that the Partnership obtains full and 15 fair value for the Property and to ensure that the partner interests are thereby protected, and 1