Demurrer in MARK D MCHALE ET AL VS. WILLIAM RICHARD LAWSON ET AL| Trellis.Law

On June 11, 2021 a Complaint,Petition was filed involving a dispute between Grant, Michael J., Mchale, Mark D., and Does 1-50, Inclusive, Lawson, William Richard, for QUIET TITLE - REAL PROPERTY in the District Court of San Francisco County.

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1 Nicholas A. Rogers, California Bar No. 248900
Aaron A Hayes, California Bar No. 236122
2 O’TOOLE ROGERS, LLP
3650 Mt. Diablo Blvd, Suite 180
ELECTRONICALLY
3 Lafayette, CA 94549
Telephone: 925.284.4693 F I L E D
4 Fax: 925.433.6627 Superior Court of California,
County of San Francisco
nrogers@otoolerogers.com
5 ahayes@otoolerogers.com 07/07/2022
Clerk of the Court
BY: JACKIE LAPREVOTTE
6 Attorneys for Defendant Deputy Clerk
WILLIAM RICHARD LAWSON
7

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SAN FRANCISCO

11 MARK D. MCHALE, an individual; No. CGC-21-592767
MICHAEL J. GRANT, an individual
12 REPLY DECLARATION OF NICHOLAS
Plaintiffs, A. ROGERS IN SUPPORT OF
13 DEFENDANT WILLIAM RICHARD
vs. LAWSON’S DEMURRER TO SECOND
14 AMENDED COMPLAINT
WILLIAM RICHARD LAWSON, an
15 individual, and DOES 1-50, inclusive, Date: July 7, 2022
Time: 9:30 a.m.
16 Defendants. Dept.: 210
17 Complaint Filed: June 11, 2021
Trial Date: N/A
18 /
19 I, NICHOLAS A. ROGERS, declare and state as follows:

20 1. I am an attorney licensed to practice in all courts of the State of California and a

21 Partner at O’Toole Rogers LLP, counsel for Defendant William Richard Lawson in the above-

22 entitled matter.

23 2. I have personal knowledge of each fact stated in this declaration, except as to those

24 matters which are alleged on information and belief, and as to those matters, I believe them to be

25 true.

26 3. I make this declaration without waiving any applicable privileges, including but not

27 limited to the attorney-client privilege and/or attorney work product privileges.

28
1
REPLY DECLARATION OF NICHOLAS A. ROGERS IN SUPPORT OF DEFENDANT WILLIAM RICHARD
LAWSON’S DEMURRER TO SECOND AMENDED COMPLAINT
1 4. I have read and reviewed Plaintiffs’ filings in opposition to Mr. Lawson’s Demurrer

2 to the Second Amended Complaint (“SAC”) including the July 1, 2022 Declaration of Jessica M.

3 Takano (“Takano Dec.”) in which she states there was no “specific deadline” for Mr. Lawson to file

4 a responsive pleading. I am informed and believe this is incorrect.

5 5. When Ms. Takano was retained by Plaintiffs, our office had already reached a

6 stipulated extension with Plaintiffs’ prior counsel to extend Mr. Lawson’s deadline to file a

7 responsive pleading through May 23, 2022.

8 6. On May 11, 2022, I e-mailed Ms. Takano to inform her of this deadline and to discuss

9 whether settlement along lines previously discussed by the parties was possible. I noted that if such

10 an agreement was not possible, it made more sense for our office to file the demurrer. A true and

11 correct copy of my May 11, 2022 e-mail is attached hereto as Exhibit A.

12 7. On May 17, 2022, Ms. Takano responded indicating Plaintiffs preferred to explore

13 the possibility of resolution prior to the next Case Management Conference, presently set for

14 August 31, 2022, rather than engage in further motion practice. That same day, I responded that I

15 appreciated the offer to extend the responsive pleading deadline; however, the parties had explored

16 resolution for more than a year without success. Ms. Takano then responded that she expected to

17 have a settlement proposal from her clients for Mr. Lawson in “the next day or so.” A true and

18 correct copy of redacted e-mails exchanged on May 17, 2022 is attached hereto as Exhibit B.

19 8. On May 20, 2022, I followed up with Ms. Takano by e-mail indicating Mr. Lawson

20 had not received the settlement proposal as represented, but required an extension to file a

21 responsive pleading. In doing so, I requested a one-week extension from May 23, 2022 to

22 May 30, 2022. In doing so, I inadvertently overlooked that May 30, 2022 was a holiday. Ms. Takano

23 graciously approved the extension and indicated she would contact me the following week. A true

24 and correct redacted copy of our May 20, 2022 e-mail exchange is attached hereto as Exhibit C.

25 9. Just prior to the close of business on May 20, 2022, Ms. Takano e-mailed to notify

26 me that her clients noticed an “emergency” meeting the following week to approve the expenditure

27 of association funds to secure an insurance policy and to discuss “other recent developments.”

28 The notice was defective, but more importantly, I was surprised that Plaintiffs required an

2
REPLY DECLARATION OF NICHOLAS A. ROGERS IN SUPPORT OF DEFENDANT WILLIAM RICHARD
LAWSON’S DEMURRER TO SECOND AMENDED COMPLAINT
1 “emergency” noticed meeting to approve an expenditure that had been contemplated by the parties

2 for several months, was not in dispute, had not been discussed during our prior communications,

3 and was scheduled without any effort to determine if Mr. Lawson was available to attend. I am

4 informed and believe Mr. Lawson was not available on the date Plaintiffs unilaterally noticed

5 because he was scheduled to work. I also did not know what “recent developments” required an

6 “emergency” meeting. Once more, this “emergency” meeting was not the first time Plaintiffs had

7 noticed an “emergency” meeting in such manner during the pendency of this action.

8 10. The following week, I e-mailed Ms. Takano regarding the defective notice and my

9 concerns regarding Plaintiffs’ decision to notice an “emergency” meeting. I then spoke with

10 Ms. Takano about my concerns via telephone, which included matters discussed in my e-mail, the

11 absence of any settlement offer as represented in her May 17, 2022 e-mail, and Mr. Lawson’s desire

12 to resolve the case by compromise or Court order. A true and correct copy of our e-mails on

13 May 24, 2022 and May 25, 2022 are attached hereto as Exhibit D.

14 11. Having received no further response or settlement offer, our office prepared the

15 instant Demurrer to the SAC and supporting papers. Our office then filed and served the Demurrer

16 and supporting papers on May 31, 2022 in accordance with the parties stipulated agreement and

17 Rules of Court.

18 12. Thereafter, Ms. Takano informed me of her unavailability to file an opposition by

19 June 25, 2022 due to a vacation and other personal matters. At no time did Ms. Takano indicate she

20 was unavailable for the July 7, 2022 hearing date. Ms. Takano did, however, indicate she would

21 make herself available for a rescheduled “emergency” meeting while on vacation. Thereafter, we

22 conferred in good faith and reached a compromise resulting in the stipulation that was filed with the

23 Court to continue the hearing to July 14, 2022.

24 I declare under penalty of perjury under the laws of the State of California that the foregoing

25 is true and correct. Executed this 7th day of July 2022, in Lafayette, California.

27 ____________________________________
NICHOLAS A. ROGERS
28
3
REPLY DECLARATION OF NICHOLAS A. ROGERS IN SUPPORT OF DEFENDANT WILLIAM RICHARD
LAWSON’S DEMURRER TO SECOND AMENDED COMPLAINT
Exhibit A
Nicholas A. Rogers

From: Nicholas A. Rogers
Sent: Wednesday, May 11, 2022 9:53 AM
To: Jessica M. Takano
Cc: Aaron Hayes; Terri Nacco
Subject: RE: McHale, et al. v. Lawson, SF Superior Court Case No.: CGC-21-592767

Jessica,

Thanks for the update and response.

I will update my clients, but think it probably makes sense for Ms. Hutchins to include Mr. Lawson on status
updates/information directly. To date, I don't think my client has received any insurance communications including
notice the casualty policy lapsed on April 28 th • I can reach out to her directly to discuss status if that is preferrable.

As for the Second Amended Complaint/potential resolution, are your clients interested in resolving the dispute along the
lines contemplated by the prior mediator's proposal? I believe my client's deadline to file a responsive pleading is May
23 rd • I know you offered to extend that deadline, and I appreciate the professional courtesy, but if settlement is along
those lines is not possible, it probably makes more sense for our office to file its papers, get a hearing date, and push the
case forward as I know both sides are frustrated the case remains unresolved.

Please let me know your thoughts on that front and whether your clients take issue with me contacting Ms. Hutchins
directly.

Best,

Nicholas A. Rogers, Esq .
Partner

O'Toole Rogers, LLP
3650 Mt Diablo Blvd, Ste 180
Lafayette, CA 94549
0: 925.284.4693
C: 415.505.2973
otoolerogers.com

From: Jessica M. Takano
Sent: Tuesday, May 10, 2022 2:55 PM
To: Nicholas A. Rogers
Cc: Aaron Hayes ; Terri Nacco
Subject: RE: McHale, et al. v. Lawson, SF Superior Court Case No.: CGC-21-592767

1
Hi Nicholas,

As we discussed, the insurance for the property lapsed on April 28, because insufficient work had been completed on
the back stairs project to satisfy the insurance carrier and secure a further extension of the policy. My clients are still
working with Pam Hutchins at Gordon Insurance to try to get replacement coverage as soon as possible. They have sent
Pam photos of the substantial work that has been completed on the back stairs project over the past week or so. (See
attached photos.)

Pam has indicated that the potential new carrier has been asking questions about the D&O claim, to ensure that no
liability from that claim will follow the new policy. Pam said this morning that she hopes to have a proposal for a new
policy in the next couple of days. If she can't get coverage placed with a standard carrier, she will have to go to surplus
lines where hard-to-place risks are entertained, but of course that would increase the premiums significantly. (As it is, it
sounds like the premium for the possible replacement policy Pam is currently exploring would be quite a bit higher than
past premiums have been, because the safety issue presented by the back stairs was not timely addressed.)

If you could make sure your clients are aware of these developments and ensure that they are prepared to take timely
action to secure and pay for new insurance coverage, assuming it is available, we would appreciate it.

Thank you,
Jessica

Jessica M. Takano, Esq .

Representing Innovators for Over 135 Years
Donahue Fitzgerald LLP
1646 N. California Blvd. Suite 250, Walnut Creek, CA 94596
JTakano@donahue.com I (925) 953-6364 (d) I (925) 746-7770 (w) I (925) 746-7776 (f)
Important: This email may contain confidential or privileged information. If it is not meant for you, please do not retain,
read, copy, or disseminate any part of it, and please immediately notify us. Thank you.

From: Nicholas A. Rogers
Sent: Friday, May 6, 2022 3:38 PM
To: Jessica M. Takano
Cc: Aaron Hayes ; Terri Nocco
Subject: RE: McHale, et al. v. Lawson, SF Superior Court Case No.: CGC-21-592767

Jessica,

Following up on status of project, insurance, and potential resolution. Anything you, Mr. Kearney, or your clients need
from our office or client on this?

Enjoy your weekend.

Nicholas A. Rogers, Esq .
Partner

O'Toole Rogers, LLP
3650 Mt Diablo Blvd, Ste 180
Lafayette, CA 94549
2
Exhibit B
Nicholas A. Rogers

From: Jessica M. Takano
Sent: Tuesday, May 17, 2022 4:04 PM
To: Nicholas A. Rogers
Cc: Aaron Hayes; Terri Nacco
Subject: RE: 219-221 Eureka Street HOA

I expect to have a settlement proposal to you in the next day or so. Thanks.

From: Nicholas A. Rogers
Sent: Tuesday, May 17, 2022 4:02 PM
To: Jessica M. Takano
Cc: Aaron Hayes ; Terri Nacco
Subject: RE: 219-221 Eureka Street HOA

Jessica,

Thanks, and I appreciate the offer to extend our responsive pleading deadline and believe resolution makes sense for all
parties. However, the parties have explored resolution for more than a year to no avail. I don't foresee how the case
resolves if•■■ ■■■■••■ Please let me know if you have any further
updates after speaking w1

Best,

Nicholas A. Rogers, Esq .
Partner

O'Toole Rogers, LLP
3650 Mt Diablo Blvd, Ste 180
Lafayette, CA 94549
0: 925.284.4693
C: 415.505.2973
otoolerogers.com

From: Jessica M. Takano
Sent: Tuesday, May 17, 2022 9:08 AM
To: Nicholas A. Rogers
Cc: Aaron Hayes ; Terri Nacco
Subject: FW: 219-221 Eureka Street HOA

Nicholas,

I am forwarding the insurance update below FYI.

1
I have a call scheduled with my clients this afternoon and will get back to you after that in response to your inquiry
about a possible settlement concept. In the meantime, I can say that we are in agreement that actively litigating this
matter is not in the parties' best interests. We would prefer to use the time before the next CMC exploring the
possibility of resolution, rather than having another pleading battle. We would be happy to extend your current
deadline to respond to the Second Amended Complaint.

Thanks,
Jessica

Jessica M. Takano, Esq.

I X --- ------ - I

Representing Innovators for Over 135 Years
Donahue Fitzgerald LLP
1646 N. California Blvd. Suite 250, Walnut Creek, CA 94596
JTakano@donahue.com I (925) 953-6364 (d) I (925) 746-7770 (w) I (925) 746-7776 (fl
Important: This email may contain confidential or privileged information. If it is not meant for you, please do not retain,
read, copy, or disseminate any part of it, and please immediately notify us. Thank you.

From: Pam Hutchins
Sent: Tuesday, May 17, 2022 6:37 AM
To: kevin@ kearneyobanion.com; wihonson@aol.com ; eurekachard@ya hoo.eom: mark@markdmchale .com;
mike j gra nt@yahoo.com
Subject: 219-221 Eureka Street HOA

Good Morning Gentlemen,

Bad news ... l have received notice the USU is willing to bind coverage now, but not will not start coverage until the
construction is completed. Zurich and Great American also will not start coverage until construction is complete.

I am checking to see if there is anyway to get coverage now, until the construction is done. To be honest, I don't hold up
much hope, but I will try. Has the estimated completion date been updated? Last I heard was end of May.

On a different subject ... ! will be retiring this month with 5/26 being my last day. Your account will be transferred to
another capable account manager... ! just don't know who yet. Once determined, I'll let you know. I will let the new
person know the background on the quotes so he/she will be up to date. My husband & I will be RV'g across the
country this summer! I will also be concentrating on my own company that monitors insurance certificates' compliance
for those businesses who require them. I'll also be expanding my photography endeavors to include nature and macro
subjects. I will keep busy!

Pam Hutchins

CJ~9m9N
Proud Member of the PCF Group of Companies
I am in the office Tuesdays, Wednesdays, and Thursdays from 6am to 2pm MT. EMAIL IS THE BEST WAY TO REACH
ME.
20 El Camino Real, Redwood City, Ca 94062

2
Bus: 650-654-5555 Ext. 6969
Fax: 650-654-5550
phutchins@gordoninsurance.com

PLEASE SEND ALL CERTIFICATE REQUESTS TO: CERTIFICATES@GORDONINSURANCE.COM

Confidentiality Notice: The information in this email message, including any attachments, is for the sole use of the intended recipient(s) and may
concern confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended
recipient and have received this communication in error, please contact the sender by reply email and destroy all copies of the original messages.
Thank you.

3
Exhibit C
Nicholas A. Rogers

From: Jessica M. Takano
Sent: Friday, May 20, 2022 2:44 PM
To: Nicholas A. Rogers
Cc: Aaron Hayes; Terri Nocco
Subject: RE: 219-221 Eureka Street HOA

Confirming the extension. Thanks for checking in, and I will be in touch next week.

From: Nicholas A. Rogers
Sent: Friday, May 20, 2022 2:41 PM
To: Jessica M. Takano
Cc: Aaron Hayes ; Terri Nacco
Subject: RE: 219-221 Eureka Street HOA

Jessica,

We did not receive the settlement proposal. Happy to give you additional time understanding our client requires the
previously offered extension to file a responsive pleading. We would request a one-week extension from the present
deadline of May 23 rd to May 30th • If we do not hear from you we will presume you consent to the extension given our
prior correspondence. Enjoy your weekend and look forward to speaking with you next week.

Best,

Nicholas A. Rogers, Esq .
Partner

O'Toole Rogers, LLP
3650 Mt Diablo Blvd, Ste 180
Lafayette, CA 94549
0: 925.284.4693
C: 415.505.2973
otoolerogers.com

From: Jessica M. Takano
Sent: Tuesday, May 17, 2022 4:04 PM
To: Nicholas A. Rogers
Cc: Aaron Hayes ; Terri Nacco
Subject: RE: 219-221 Eureka Street HOA

I expect to have a settlement proposal to you in the next day or so. Thanks.

1
From: Nicholas A. Rogers
Sent: Tuesday, May 17, 2022 4:02 PM
To: Jessica M. Takano
Cc: Aaron Hayes ; Terri Nacco
Subject: RE: 219-221 Eureka Street HOA

Jessica,

Thanks, and I appreciate the offer to extend our responsive pleading deadline and believe resolution makes sense for all
parties. However, the parties have explored resolution for more than a year to no avail. I don't foresee how the case
resolve1 S - ] . Please let me know if you have any further
updates after speaking with your clients.

Best,

Nicholas A. Rogers, Esq .
Partner

O'Toole Rogers, LLP
3650 Mt Diablo Blvd, Ste 180
Lafayette, CA 94549
0: 925.284.4693
C: 415.505.2973
otoolerogers.com

From: Jessica M. Takano
Sent: Tuesday, May 17, 2022 9:08 AM
To: Nicholas A. Rogers
Cc: Aaron Hayes ; Terri Nacco
Subject: FW: 219-221 Eureka Street HOA

Nicholas,

I am forwarding the insurance update below FYI.

I have a call scheduled with my clients this afternoon and will get back to you after that in response to your inquiry
about a possible settlement concept. In the meantime, I can say that we are in agreement that actively litigating this
matter is not in the parties' best interests. We would prefer to use the time before the next CMC exploring the
possibility of resolution, rather than having another pleading battle. We would be happy to extend your current
deadline to respond to the Second Amended Complaint.

Thanks,
Jessica

2
Jessica M. Takano, Esq.

I X ------

From: Pam Hutchins
Sent: Tuesday, May 17, 2022 6:37 AM
To: kevin@kearneyobanion .com; wiho-nson@aol.com; eurekachard@yahoo.com; mark@markdmchale .com;
mike j grant@yahoo.com
Subject: 219-221 Eureka Street HOA

Good Morning Gentlemen,

On a different subject ... ! will be retiring this month with 5/26 being my last day. Your account will be transferred to
another capable account manager ... ! just don't know who yet. Once determined, I'll let you know. I will let the new
person know the background on the quotes so he/she will be up to date. My husband & I will be RV'g across the
country this summer! I will also be concentrating on my own company that monitors insurance certificates' compliance
for those businesses who require them. I'll also be expanding my photography endeavors to include nature and macro
subjects. I will keep busy!

Pam Hutchins

(J ~?~1??~
Proud Member of the PCF Group of Companies
I am in the office Tuesdays, Wednesdays, and Thursdays from 6am to 2pm MT. EMAIL IS THE BEST WAY TO REACH
ME.
20 El Camino Real, Redwood City, Ca 94062
Bus: 650-654-5555 Ext. 6969
Fax: 650-654-5550
phutchins@gordoninsurance.com

PLEASE SEND ALL CERTIFICATE REQUESTS TO: CERTIFICATES@GORDONINSURANCE.COM

3
4
Exhibit D
Nicholas A. Rogers

From: Jessica M. Takano
Sent: Wednesday, May 25, 2022 7:18 AM
To: Nicholas A. Rogers
Cc: Aaron Hayes; Terri Nacco; Scott A. Lewis
Subject: Re: 219-221 Eureka Street HOA

Hi Nick,

I have touched base with my clients, and the meeting will not be going forward as noticed, due to your clients'
unavailability. Please provide some dates and times in the next week or so that they could be available to meet.

I have a call scheduled with my clients this afternoon at 3:00. Could I give you a call after that, maybe around 4:00-4:30?

Thanks,
Jessica

Get Outlook for iOS

From: Nicholas A. Rogers
Sent: Tuesday, May 24, 2022 12:20:33 PM
To: Jessica M. Takano
Cc: Aaron Hayes ; Terri Nacco ; Scott A. Lewis

Subject: RE: 219-221 Eureka Street HOA

Jessica,

I am writing in follow up to the message I left today.

I have had an opportunity to review your clients' notice of an emergency owner meeting for 3:00 p.m. tomorrow. I am
informed my client's husband emailed you and your clients on Friday afternoon regarding their unavailability due to
work. My client has not received a response from your clients regarding rescheduling tomorrow's meeting and,
therefore, I presume your clients intend to go forward with the meeting despite my client's absence. As such, I write to
memorialize that the notice is defective. Your clients do not have the authority to unilaterally notice meetings, let alone
"emergency" meetings when no exigent circumstance exists. Neither statue cited in your clients' defective notice
supports their actions as your clients are neither the President of the Association nor two directors currently serving on
the Board, the need to fund a new casualty policy was foreseeable, the matter could be discussed at a regularly
scheduled meeting on 4 day notice had the parties simply conferred on a mutually agreeable date and time (which could
even have been today), and the Association is an unincorporated association not an incorporated association subject to
the Corporations Code § 7211 as reflected in the notice.

If a meeting was needed, let alone an urgent meeting one during which your clients wanted to discuss matters beyond
insurance, including matters directly at issue in the litigation they filed but now appear disinterested in prosecuting or
resolving, why didn't you simply contact me to clear a date and time for my clients? Rather than improperly notice a
meeting to discuss such matters, why doesn't your client send a settlement offer that contemplates the scope of
previously agreed upon repairs that my clients, quite literally, agreed to fund. And, if there is some new maintenance or
repair development that requires immediate attention, you can give me a call to explain and we can appropriately
address it, again considering the existence of your clients' lawsuit that remains pending.

1
Please advise if your clients intend to move forward with tomorrow's meeting despite my client's unavailability as I will
appear on his behalf if necessary.

Nicholas A. Rogers, Esq.
Partner

O'Toole Rogers, LLP
3650 Mt Diablo Blvd, Ste 180
Lafayette, CA 94549
0: 925.284.4693
C: 415.505.2973
otoolerogers.com

From: Jessica M. Takano
Sent: Friday, May 20, 2022 5:22 PM
To: Nicholas A. Rogers
Cc: Aaron Hayes ; Terri Nacco
Subject: RE: 219-221 Eureka Street HOA

Following up on this, attached are the binder and receipt for the State Farm coverage. Thanks.

From: Jessica M. Takano
Sent: Friday, May 20, 2022 4:42 PM
To: 'Nicholas A. Rogers'
Cc: Aaron Hayes ; Terri Nacco
Subject: 219-221 Eureka Street HOA
Importance: High

Hi Nicholas,

My clients got a piece of good news - they were able to obtain insurance for the building with a different carrier, State
Farm. Given the importance of having insurance in place and the significant risk that resulted from the lapse of the
previous policy on April 28, my clients felt it was important to bind coverage as soon as possible. They are calling for an
emergency HOA meeting next week to approve this HOA expense and discuss other recent developments. (Please see
the attached meeting notice and Reserve Study documents.)

I have set up a Zoom meeting for the date and time of the noticed meeting. My assumption is that counsel for both
parties will attend the meeting, as has been the recent practice. If you have any questions, please let me know.

Thank you,
Jessica

2
Jessica M. Takano, Esq.

Case Info

Judge

Samuel K. Feng Track Judge’s New Case

Case No.

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Document Filed Date

July 07, 2022

Case Filing Date

June 11, 2021

County

Parties

CAHILL-MARSLAND, MORGAN Attorney for the Plaintiff
DOES 1-50, INCLUSIVE Defendant
GRANT, MICHAEL J. Plaintiff
LAWSON, WILLIAM RICHARD Defendant
MCHALE, MARK D. Plaintiff
ROGERS, NICHOLAS A. Attorney for the Defendant
TAKANO, JESSICA M. Attorney for the Plaintiff
Artes Grove Attorneys for Plaintiffs
Cassidy Wallace Attorneys for Plaintiffs
Matthew Kloenhamer Attorneys for Plaintiffs
Janet Li Attorneys for Plaintiffs
Michael Gatto Attorneys for Plaintiffs
Artes Jorge Attorneys for Plaintiffs
Michael Thomas Attorneys for Plaintiffs

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Complaint,Petition: MARK D MCHALE ET AL VS. WILLIAM RICHARD LAWSON ET AL

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