Preview
1 JEFFER MANGELS BUTLER & MITCHELL LLP
ROBERT B. KAPLAN, P.C. (Bar No. 76950)
2 rbk@jmbm.com ELECTRONICALLY
JOSHUA K. HAEVERNICK (Bar No. 308380)
3 j2h@jmbm.com F I L E D
Superior Court of California,
Two Embarcadero Center, 5th Floor County of San Francisco
4 San Francisco, California 94111-3813
Telephone: (415) 398-8080 05/22/2020
Clerk of the Court
5 Facsimile: (415) 398-5584 BY: EDNALEEN ALEGRE
Deputy Clerk
6 Attorneys for Plaintiff UMPQUA BANK
7
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN FRANCISCO – UNLIMITED JURISDICTION
11
12 UMPQUA BANK, a state chartered bank, Case No. CGC-18-564941
13 Plaintiff, EVIDENCE IN SUPPORT OF
PLAINTIFF'S MOTION FOR SUMMARY
14 v. JUDGMENT
15 XELAN PROP 1, LLC, a California limited EXHIBIT B (PART 1)
liability company; and DOES 1-30, inclusive,
16 Date: August 12, 2020
Defendants. Time: 9:30 a.m.
17 Dept.: 302
18 Action Filed: March 12, 2018
Trial Date: September 14, 2020
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67745607v1
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EXHIBIT B (PART 1) TO EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
EXHIBIT B (PART 1)
1 JEFFER MANGELS BUTLER & MITCHELL LLP
ROBERT B. KAPLAN, P.C. (Bar No. 76950)
2 rbk@jmbm.com
JOSHUA K. HAEVERNICK (Bar No. 308380)
3 j2h@jmbm.com
Two Embarcadero Center, 5th Floor
4 San Francisco, California 94111-3813
Telephone: (415) 398-8080
5 Facsimile: (415) 398-5584
6 Attorneys for Plaintiff UMPQUA BANK
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO – UNLIMITED JURISDICTION
10
11 UMPQUA BANK, a state chartered bank, Case No. CGC-18-564941
12 Plaintiff, DECLARATION OF ROBERT B.
KAPLAN IN SUPPORT OF PLAINTIFF'S
13 v. MOTION FOR SUMMARY JUDGMENT
14 XELAN PROP 1, LLC, a California limited
liability company; and DOES 1-30, inclusive, Date: August 12, 2020
15 Time: 9:30 a.m.
Defendants. Dept.: 302
16
Action Filed: March 12, 2018
17 Trial Date: September 14, 2020
18
19 I, Robert B. Kaplan, declare:
20 1. I am an attorney at law duly licensed to practice law before all of the courts of the
21 State of California and am a partner with Jeffer Mangels Butler & Mitchell LLP ("JMBM"), and
22 am one of the attorneys of record for Plaintiff Umpqua Bank ("Bank") in the above-entitled action.
23 If called upon to testify as to the facts set forth in this declaration, I could and would competently
24 testify thereto since the facts herein set forth are personally known to me to be true. My
25 knowledge of the facts set forth in this declaration arises from the fact that I am one of the
26 attorneys of JMBM primarily responsible for the litigation of this action against Defendant
27 XELAN Prop 1, LLC ("XELAN").
28 ///
67590139v1 1
DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN)
1 COMPLAINT AND ANSWER FILED BY XELAN
2 2. On March 12, 2018, the Bank filed its Verified Complaint for Specific Performance
3 and Appointment of Receiver in this action which names XELAN Prop 1, LLC ("XELAN") as the
4 sole defendant, a true and correct copy of which is attached hereto as Exhibit 1.
5 3. Attached hereto as Exhibit 2 is a true and correct copy of the Answer filed by
6 XELAN to the Bank's Complaint on March 25, 2019.
7 THE RECEIVER APPOINTED IN THIS ACTION
8 4. On April 6, 2018, an Order Appointing Receiver and Preliminary Injunction in Aid
9 of Receiver was filed in the San Francisco Action ("Receiver Order") pursuant to which, inter alia,
10 Kevin Singer was appointed as Receiver over the real properties commonly known 1000-1022
11 Filbert Street Property, San Francisco, California ("Filbert Street Property"), and 4018-4022 19th
12 Street, San Francisco, California ("19th Street Property"), a true and correct copy of which is
13 attached hereto as Exhibit 3. The 19th Street Property and the Filbert Street Property are
14 hereinafter collectively referred to from time to time as the "Properties". XELAN never filed an
15 appeal from the Receiver Order.
16 THE RECEIVER'S SALE OF THE PROPERTIES AS AUTHORIZED BY THIS COURT
17 5. On September 13, 2018, Bank filed in this action, with respect to the Properties, a
18 Notice of Motion and Motion for Order: (1) Instructing and Authorizing Receiver to Sell Real
19 Property Assets of Receivership Estate; and (2) Confirming Sale Procedures with supporting
20 Memorandum of Points and Authorities and Declarations (the "Sale Procedures Motion").
21 XELAN filed Opposition to the Sale Procedures Motion on October 1, 2018, and the Bank
22 thereafter filed a Reply in support thereof on October 4, 2018.
23 6. On October 12, 2018, after a hearing, an order was entered in this action granting
24 the Sale Procedures Motion (the "Sale Procedures Order"), a true and correct copy of which is
25 attached hereto as Exhibit 4. XELAN never filed an appeal from the Sale Procedures Order.
26 7. On January 18, 2019, Bank filed in this action a Notice of Motion and Motion for
27 Order: (1) Instructing and Authorizing Receiver to Sell Real Property Asset of Receivership
28 Estate; and (2) Confirming Sale of Real Property [1000-1022 Filbert Street, San Francisco, CA]
67590139v1 2
DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN)
1 and Points and Authorities and Declarations in support thereof ("Motion for Order Approving Sale
2 of Filbert Street Property").
3 8. On February 6, 2019, XELAN filed its Opposition to the Motion for Order
4 Approving Sale of Filbert Street Property, and the Bank thereafter filed its Reply in support
5 thereof.
6 9. The Motion for Order Approving Sale of Filbert Street Property was granted
7 pursuant to two Orders which were filed on February 21, 2019 in this action, true and correct
8 copies of which are attached hereto collectively as Exhibit 5 ("Order Approving Sale of Filbert
9 Street Property").
10 10. On March 5, 2019, Bank filed in this action a Notice of Motion and Motion for
11 Order (1) Instructing Receiver to Sell Real Property Asset of Receivership Estate; and (2)
12 Confirming Sale of Real Property [4018-4022 19th Street, San Francisco, CA] ("Motion for Order
13 Approving Sale of 19th Street Property").
14 11. On March 6, 2019, XELAN filed in this action its Notice of Motion and Motion to
15 Have the April 6, 2018, October 12, 2018 and February 21, 2019 Sale Orders Declared Null and
16 Void ("Motion to Declare Orders Null and Void"). The Bank filed Opposition to the Motion to
17 Declare Orders Null and Void on March 15, 2019, and the Receiver filed a Joinder to the Bank's
18 Opposition on March 15, 2019. XELAN then filed on March 20, 2019 a 145 page Reply in
19 support of the Motion.
20 12. On April 12, 2019, XELAN's Motion to Declare Orders Null and Void was denied
21 pursuant to an Order, a true and correct copy of which is attached hereto as Exhibit 6 ("Order
22 Denying Motion to Declare Orders Null and Void").
23 13. On March 11, 2019, XELAN filed in this action a Notice of Appeal and an
24 Amended Notice of Appeal from the Order Approving of Sale of Filbert Street Property ("Filbert
25 Street Appeal"), true and correct copies of which are attached hereto collectively as Exhibit 7.
26 14. On March 15, 2019, pursuant to the Superior Court's Order Approving of Sale of
27 Filbert Street Property, a Grant Deed was recorded in the San Francisco Assessor-Recorder's
28 Office, as Document No. DOC 2019-9K743182-00, transferring record title to the Filbert Street
67590139v1 3
DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN)
1 Property from the Receiver to a third party buyer, a true and correct copy of which is attached to
2 the Bank's accompanying Request for Judicial Notice in support of its Motion for Summary
3 Judgment as Exhibit 1.
4 15. On March 20, 2019, April 3, 2019 and April 9, 2019, XELAN filed Opposition to
5 Bank's Motion for Order Approving of Sale of 19th Street Property (collectively, the
6 "Opposition").
7 16. The Bank and the Receiver then filed Replies on March 28, 2019 and April 8, 2019
8 in support of the Motion to Approve of the Sale of the 19th Street Property.
9 17. The Bank's Motion for Order Approving of Sale of 19th Street Property was
10 granted pursuant to an Order which was filed in this action on April 15, 2019 ("Order Approving
11 of Sale of 19th Street Property"), a true and correct copy of which is attached hereto as Exhibit 8.
12 18. On April 15, 2019, XELAN filed in this action a Notice of Appeal from the Order
13 Approving of Sale of 19th Street Property ("19th Street Appeal"), a true and correct copy of which
14 is attached hereto as Exhibit 9.
15 19. On May 13, 2019, pursuant to the Superior Court's Order Approving of Sale of
16 19th Street Property, a Grant Deed was recorded in the San Francisco Assessor-Recorder's Office,
17 as Document No. DOC 2019-K765936-00, transferring record title to the 19th Street Property
18 from the Receiver to a third party buyer, a true and correct copy of which is attached to the Bank's
19 accompanying Request for Judicial Notice in support of its Motion for Summary Judgment as
20 Exhibit 2.
21 20. On June 12, 2019, XELAN filed in this action its Notice of Appeal from the Order
22 Denying Motion to Declare Orders Null and Void and from the Receiver Instruction Order ("Null
23 and Void Order Appeal"), a true and correct copy of which is attached hereto as Exhibit 10.
24 PROCEEDINGS BEFORE THE COURT OF APPEAL
25 21. On April 23, 2019, the Bank filed its Motion to Dismiss the Filbert Street Appeal in
26 the Court of Appeal for the State of California, First Appellate District, Case No. A156993, a true
27 and correct copy of which is attached hereto as Exhibit 11 (without attached exhibits). On May 8,
28 2019, XELAN filed its Opposition to the Bank's Motion to Dismiss the Filbert Street Appeal, a
67590139v1 4
DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN)
1 true and correct copy of which is attached hereto as Exhibit 12. On May 13, 2019, the Bank filed
2 its Reply in support of its Motion to Dismiss the Filbert Street Appeal, a true and correct copy of
3 which is attached hereto as Exhibit 13.
4 22. On May 20, 2019, the Bank filed its Motion to Dismiss the 19th Street Appeal in
5 the Court of Appeal for the State of California, First Appellate District, Case No. A157061, a true
6 and correct copy of which is attached hereto as Exhibit 14 (without attached exhibits).
7 23. On August 7, 2019, the Bank filed its Motion to Dismiss the Null and Void Order
8 Appeal in the Court of Appeal for the State of California, First Appellate District, Case No.
9 A157863, a true and correct copy of which is attached hereto as Exhibit 15 (without attached
10 exhibits). On September 6, 2019, the Court of Appeal dismissed the XELAN Null and Void Order
11 Appeal pursuant to an unpublished opinion, a true and correct copy of which is attached hereto as
12 Exhibit 16.
13 24. On September 26, 2019, the Court of Appeal dismissed XELAN's appeals from the
14 Filbert Street Sale Order and the 19th Street Sale Order in an unpublished opinion, on the grounds
15 that the appeals were moot, a true and correct copy of which his attached hereto as Exhibit 17.
16 25. On November 7, 2019, the Court of Appeal issued a Remittitur with respect to the
17 XELAN Null and Void Order Appeal, a true and correct copy of which is attached hereto as
18 Exhibit 18.
19 26. On November 26, 2019, the Court of Appeal issued a Remittitur with respect to the
20 XELAN 19th Street Appeal and the XELAN Filbert Street Appeal, a true and correct copy of
21 which is attached hereto as Exhibit 19.
22 REQUEST FOR ADMISSIONS SERVED BY THE BANK
23 27. Attached hereto as Exhibit 20 is a true and correct copy of the Request for
24 Admissions (Set One) served by mail on XELAN on March 22, 2019 ("Request for Admissions").
25 28. Attached hereto as Exhibit 21 is a true and correct copy of the Responses served by
26 XELAN to the Bank's Request for Admissions dated March 17, 2020 along with accompanying
27 Proof of Service and Verification (the "Responses to Request for Admissions").
28 29. Set forth below are the admissions made by XELAN in its Responses to Request
67590139v1 5
DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN)
1 for Admissions (statements made in the Responses to the Request for Admissions have been
2 omitted and denominated with "….":
3 (a) REQUEST FOR ADMISSION NO. 1:
4 Exhibit 1 attached hereto is a true and correct copy of the FILBERT
5 STREET PROPERTY NOTE.
6 RESPONSE TO ADMISSION NO. 1:
7 Admit.
8 (b) REQUEST FOR ADMISSION NO. 2:
9 Exhibit 2 attached hereto is a true and correct copy of the FILBERT
10 STREET PROPERTY DEED OF TRUST.
11 RESPONSE TO ADMISSION NO. 2:
12 Admit.
13 (c) REQUEST FOR ADMISSION NO. 3:
14 Exhibit 2 attached hereto was recorded on August 14, 2013 in the Official
15 Records of the San Francisco County Recorder's Office at DOC-2013-J729297-00 beginning at
16 Reel K960, Image 0086.
17 RESPONSE TO ADMISSION NO. 3:
18 Admit.
19 (d) REQUEST FOR ADMISSION NO. 4:
20 Exhibit 3 attached hereto is a true and correct copy of the FILBERT
21 STREET PROPERTY ASSIGNMENT.
22 RESPONSE TO ADMISSION NO. 4:
23 Admit.
24 (e) REQUEST FOR ADMISSION NO. 5:
25 YOU signed the original of Exhibit 1 attached hereto.
26 RESPONSE TO ADMISSION NO. 5:
27 Admit.
28 (f) REQUEST FOR ADMISSION NO. 6:
67590139v1 6
DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN)
1 YOU signed the original of Exhibit 2 attached hereto.
2 RESPONSE TO ADMISSION NO. 6:
3 Admit.
4 (g) REQUEST FOR ADMISSION NO. 7:
5 YOU signed the original of Exhibit 3 attached hereto.
6 RESPONSE TO ADMISSION NO. 7:
7 Admit.
8 (h) REQUEST FOR ADMISSION NO. 8:
9 Exhibit 4 attached hereto is a true and correct copy of the 19TH STREET
10 PROPERTY NOTE.
11 RESPONSE TO ADMISSION NO. 8:
12 Admit.
13 (i) REQUEST FOR ADMISSION NO. 9:
14 Exhibit 5 attached hereto is a true and correct copy of the 19TH STREET
15 PROPERTY DEED OF TRUST.
16 RESPONSE TO ADMISSION NO. 9:
17 Admit.
18 (j) REQUEST FOR ADMISSION NO. 10:
19 Exhibit 5 attached hereto was recorded on June 28, 2013 in the Official
20 Records of the San Francisco County Recorder's Office at DOC-2013-J697776-00 beginning at
21 Reel K928, Image 0305.
22 RESPONSE TO ADMISSION NO. 10:
23 Admit.
24 (k) REQUEST FOR ADMISSION NO. 11:
25 Exhibit 6 attached hereto is a true and correct copy of the 19TH STREET
26 PROPERTY ASSIGNMENT.
27 RESPONSE TO ADMISSION NO. 11:
28 Admit.
67590139v1 7
DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN)
1 (l) REQUEST FOR ADMISSION NO. 12:
2 YOU signed the original of Exhibit 4 attached hereto.
3 RESPONSE TO ADMISSION NO. 12:
4 Admit.
5 (m) REQUEST FOR ADMISSION NO. 13:
6 YOU signed the original of Exhibit 5 attached hereto.
7 RESPONSE TO ADMISSION NO. 13:
8 Admit.
9 (n) REQUEST FOR ADMISSION NO. 14:
10 YOU signed the original of Exhibit 6 attached hereto.
11 RESPONSE TO ADMISSION NO. 14:
12 Admit.
13 (o) REQUEST FOR ADMISSION NO. 15:
14 YOU did not provide to PLAINTIFF financial statements in December of
15 2017.
16 RESPONSE TO ADMISSION NO. 15:
17 Admit…..
18 (p) REQUEST FOR ADMISSION NO. 16:
19 YOU did not provide to PLAINTIFF YOUR 2014 tax returns.
20 RESPONSE TO ADMISSION NO. 16:
21 Admit…..
22 (q) REQUEST FOR ADMISSION NO. 19:
23 YOU did not provide to PLAINTIFF YOUR 2017 tax returns.
24 RESPONSE TO ADMISSION NO. 19:
25 Admit….
26 (r) REQUEST FOR ADMISSION NO. 20:
27 YOU did not provide to PLAINTIFF YOUR 2014 tax operating statements
28 relating to the FILBERT STREET PROPERTY.
67590139v1 8
DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN)
1 RESPONSE TO ADMISSION NO. 20:
2 Admit….
3 (s) REQUEST FOR ADMISSION NO. 23:
4 YOU did not provide to PLAINTIFF YOUR 2017 tax operating statements
5 relating to the FILBERT STREET PROPERTY.
6 RESPONSE TO ADMISSION NO. 23:
7 Admit….
8 (t) REQUEST FOR ADMISSION NO. 24:
9 YOU did not provide to PLAINTIFF YOUR 2014 profit and loss statements
10 relating to the FILBERT STREET PROPERTY.
11 RESPONSE TO ADMISSION NO. 24:
12 Admit.
13 (u) REQUEST FOR ADMISSION NO. 27:
14 YOU did not provide to PLAINTIFF YOUR 2017 profit and loss statements
15 relating to the FILBERT STREET PROPERTY.
16 RESPONSE TO ADMISSION NO. 27:
17 Admit….
18 (v) REQUEST FOR ADMISSION NO. 30:
19 YOU did not provide to PLAINTIFF YOUR 2014 tax operating statements
20 relating to the 19TH STREET PROPERTY.
21 RESPONSE TO ADMISSION NO. 30:
22 Admit….
23 (w) REQUEST FOR ADMISSION NO. 33:
24 YOU did not provide to PLAINTIFF YOUR 2017 tax operating statements
25 relating to the 19TH STREET PROPERTY.
26 RESPONSE TO ADMISSION NO. 33:
27 Admit….
28
67590139v1 9
DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN)
1 (x) REQUEST FOR ADMISSION NO. 34:
2 YOU did not provide to PLAINTIFF YOUR 2014 profit and loss statements
3 relating to the 19TH STREET PROPERTY.
4 RESPONSE TO ADMISSION NO. 34:
5 Admit….
6 (y) REQUEST FOR ADMISSION NO. 37:
7 YOU did not provide to PLAINTIFF YOUR 2017 profit and loss statements
8 relating to the 19TH STREET PROPERTY.
9 RESPONSE TO ADMISSION NO. 37:
10 Admit…..
11 (z) REQUEST FOR ADMISSION NO. 40:
12 As of January 29, 2018, PLAINTIFF revoked YOUR right to collect and
13 retain payments received by YOU for the FILBERT STREET PROPERTY.
14 RESPONSE TO ADMISSION NO. 40:
15 Admit.
16 (aa) REQUEST FOR ADMISSION NO. 41:
17 As of January 29, 2018, PLAINTIFF revoked YOUR right to collect and
18 retain payments received by YOU for the 19TH STREET PROPERTY.
19 RESPONSE TO ADMISSION NO. 41:
20 Admit.
21 (bb) REQUEST FOR ADMISSION NO. 42:
22 On October 3, 2017, the City and County of San Francisco filed multiple
23 Personal Property Judgment Liens against DEFENDANT by which the City and County of San
24 Francisco was granted a judgment lien on DEFENDANT's accounts receivable and equipment.
25 RESPONSE TO ADMISSION NO. 42:
26 Admit.
27 (cc) REQUEST FOR ADMISSION NO. 43:
28 On November 16, 2017, the City and County of San Francisco filed a
67590139v1 10
DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN)
1 Personal Property Judgment Lien against DEFENDANT by which the City and County of San
2 Francisco was granted a judgment lien on DEFENDANT's accounts receivable and equipment.
3 RESPONSE TO ADMISSION NO. 43:
4 Admit.
5 (dd) REQUEST FOR ADMISSION NO. 44:
6 On December 26, 2017, an Order was entered granting the City and County
7 of San Francisco's Renoticed Motion for Assignment Order of Rights and Turnover Order in the
8 action entitled City and County of San Francisco etc. v. Anne Kihagi, etc., et al., San Francisco
9 Superior Court Case No. CGC-15-546152 ("Assignment Order").
10 RESPONSE TO ADMISSION NO. 44:
11 Admit.
12 (ee) REQUEST FOR ADMISSION NO. 49:
13 On February 27, 2018, PLAINTIFF accelerated all unpaid obligations owed
14 by YOU under the terms of Exhibit 1 attached hereto.
15 RESPONSE TO ADMISSION NO. 49:
16 Admit….
17 (ff) REQUEST FOR ADMISSION NO. 50:
18 On February 27, 2018, PLAINTIFF accelerated all unpaid obligations owed
19 by YOU under the terms of Exhibit 4 attached hereto.
20 RESPONSE TO ADMISSION NO. 50:
21 Admit….
22 THE DISTRICT ACTION AND THE JAMS ARBITRATION
23 30. On May 16, 2019, XELAN et al. commenced an action against Bank by the filing
24 of their Complaint in the United States District Court for the Central District of California
25 ("District Court Complaint") in the action entitled Anna Kihagi, an individual and XELAN Prop 1,
26 LLC, etc. v. Umpqua Bank, et al., United States District Court for the Central District of
27 California, Case No. 2:19-cv-04284-CJC (the "District Court Action") alleging the following
28 Claims for Relief: 1. Breach of Contract; 2. Breach of Fiduciary Duty; 3. Intentional
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DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN)
1 Misrepresentation; 4. Negligent Misrepresentation; 5. Concealment; 6. Interference With Contract;
2 7. Interference With Prospective Economic Advantage; 8. Negligence; and 9. Promissory
3 Estoppel, a true and correct copy which attached as Exhibit 22.
4 31. Thereafter, the Bank filed a Motion in the District Court Action to compel
5 arbitration of the claims alleged in the District Court Complaint that was granted pursuant to an
6 order, a true and correct copy of which is attached hereto as Exhibit 23 ("Order Granting Motion
7 to Compel Arbitration").
8 32. On June 14, 2019, the Bank filed its Demand for Arbitration with the Judicial
9 Arbitration and Mediation Service (the "JAMS Arbitration") to which was attached the District
10 Court Complaint filed in the District Court Action. On October 25, 2019, XELAN et al, filed their
11 Amended Arbitration Petition in the JAMS Arbitration which contained claims for relief for 1.
12 Breach of Contract, 2. Promissory Fraud, 3. Promissory Estoppel, 4. Declaratory Relief, and 5.
13 Unfair Competition, a true and correct of which is attached hereto as Exhibit 24 (the "Amended
14 Arbitration Petition").
15 33. On November 15, 2019 the Bank filed in the JAMS Arbitration its Notice of
16 Motion and Motion to Dismiss Claimants' Amended Arbitration Petition and accompanying
17 Memorandum of Points and Authorities ("Motion to Dismiss"), with the hearing on the Motion
18 deferred until March 10, 2020. On May 6, 2020, a final award was entered in the JAMS
19 Arbitration granting the Bank's Motion to Dismiss and awarding the Bank attorneys' fees and costs
20 and arbitration fees, a true and correct of which is attached hereto as Exhibit 25 (the "Final
21 Arbitration Award").
22 I declare under penalty of perjury under the laws of the State of California that the
23 foregoing is true and correct.
24
25 DATED: May 21, 2020
26
_____________________________________
27 ROBERT B. KAPLAN, Declarant
28
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DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN)
Preview
1 JEFFER MANGELS BUTLER & MITCHELL LLP ROBERT B. KAPLAN, P.C. (Bar No. 76950) 2 rbk@jmbm.com ELECTRONICALLY JOSHUA K. HAEVERNICK (Bar No. 308380) 3 j2h@jmbm.com F I L E D Superior Court of California, Two Embarcadero Center, 5th Floor County of San Francisco 4 San Francisco, California 94111-3813 Telephone: (415) 398-8080 05/22/2020 Clerk of the Court 5 Facsimile: (415) 398-5584 BY: EDNALEEN ALEGRE Deputy Clerk 6 Attorneys for Plaintiff UMPQUA BANK 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO – UNLIMITED JURISDICTION 11 12 UMPQUA BANK, a state chartered bank, Case No. CGC-18-564941 13 Plaintiff, EVIDENCE IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY 14 v. JUDGMENT 15 XELAN PROP 1, LLC, a California limited EXHIBIT B (PART 1) liability company; and DOES 1-30, inclusive, 16 Date: August 12, 2020 Defendants. Time: 9:30 a.m. 17 Dept.: 302 18 Action Filed: March 12, 2018 Trial Date: September 14, 2020 19 20 21 22 23 24 25 26 27 28 67745607v1 1 EXHIBIT B (PART 1) TO EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT EXHIBIT B (PART 1) 1 JEFFER MANGELS BUTLER & MITCHELL LLP ROBERT B. KAPLAN, P.C. (Bar No. 76950) 2 rbk@jmbm.com JOSHUA K. HAEVERNICK (Bar No. 308380) 3 j2h@jmbm.com Two Embarcadero Center, 5th Floor 4 San Francisco, California 94111-3813 Telephone: (415) 398-8080 5 Facsimile: (415) 398-5584 6 Attorneys for Plaintiff UMPQUA BANK 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO – UNLIMITED JURISDICTION 10 11 UMPQUA BANK, a state chartered bank, Case No. CGC-18-564941 12 Plaintiff, DECLARATION OF ROBERT B. KAPLAN IN SUPPORT OF PLAINTIFF'S 13 v. MOTION FOR SUMMARY JUDGMENT 14 XELAN PROP 1, LLC, a California limited liability company; and DOES 1-30, inclusive, Date: August 12, 2020 15 Time: 9:30 a.m. Defendants. Dept.: 302 16 Action Filed: March 12, 2018 17 Trial Date: September 14, 2020 18 19 I, Robert B. Kaplan, declare: 20 1. I am an attorney at law duly licensed to practice law before all of the courts of the 21 State of California and am a partner with Jeffer Mangels Butler & Mitchell LLP ("JMBM"), and 22 am one of the attorneys of record for Plaintiff Umpqua Bank ("Bank") in the above-entitled action. 23 If called upon to testify as to the facts set forth in this declaration, I could and would competently 24 testify thereto since the facts herein set forth are personally known to me to be true. My 25 knowledge of the facts set forth in this declaration arises from the fact that I am one of the 26 attorneys of JMBM primarily responsible for the litigation of this action against Defendant 27 XELAN Prop 1, LLC ("XELAN"). 28 /// 67590139v1 1 DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN) 1 COMPLAINT AND ANSWER FILED BY XELAN 2 2. On March 12, 2018, the Bank filed its Verified Complaint for Specific Performance 3 and Appointment of Receiver in this action which names XELAN Prop 1, LLC ("XELAN") as the 4 sole defendant, a true and correct copy of which is attached hereto as Exhibit 1. 5 3. Attached hereto as Exhibit 2 is a true and correct copy of the Answer filed by 6 XELAN to the Bank's Complaint on March 25, 2019. 7 THE RECEIVER APPOINTED IN THIS ACTION 8 4. On April 6, 2018, an Order Appointing Receiver and Preliminary Injunction in Aid 9 of Receiver was filed in the San Francisco Action ("Receiver Order") pursuant to which, inter alia, 10 Kevin Singer was appointed as Receiver over the real properties commonly known 1000-1022 11 Filbert Street Property, San Francisco, California ("Filbert Street Property"), and 4018-4022 19th 12 Street, San Francisco, California ("19th Street Property"), a true and correct copy of which is 13 attached hereto as Exhibit 3. The 19th Street Property and the Filbert Street Property are 14 hereinafter collectively referred to from time to time as the "Properties". XELAN never filed an 15 appeal from the Receiver Order. 16 THE RECEIVER'S SALE OF THE PROPERTIES AS AUTHORIZED BY THIS COURT 17 5. On September 13, 2018, Bank filed in this action, with respect to the Properties, a 18 Notice of Motion and Motion for Order: (1) Instructing and Authorizing Receiver to Sell Real 19 Property Assets of Receivership Estate; and (2) Confirming Sale Procedures with supporting 20 Memorandum of Points and Authorities and Declarations (the "Sale Procedures Motion"). 21 XELAN filed Opposition to the Sale Procedures Motion on October 1, 2018, and the Bank 22 thereafter filed a Reply in support thereof on October 4, 2018. 23 6. On October 12, 2018, after a hearing, an order was entered in this action granting 24 the Sale Procedures Motion (the "Sale Procedures Order"), a true and correct copy of which is 25 attached hereto as Exhibit 4. XELAN never filed an appeal from the Sale Procedures Order. 26 7. On January 18, 2019, Bank filed in this action a Notice of Motion and Motion for 27 Order: (1) Instructing and Authorizing Receiver to Sell Real Property Asset of Receivership 28 Estate; and (2) Confirming Sale of Real Property [1000-1022 Filbert Street, San Francisco, CA] 67590139v1 2 DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN) 1 and Points and Authorities and Declarations in support thereof ("Motion for Order Approving Sale 2 of Filbert Street Property"). 3 8. On February 6, 2019, XELAN filed its Opposition to the Motion for Order 4 Approving Sale of Filbert Street Property, and the Bank thereafter filed its Reply in support 5 thereof. 6 9. The Motion for Order Approving Sale of Filbert Street Property was granted 7 pursuant to two Orders which were filed on February 21, 2019 in this action, true and correct 8 copies of which are attached hereto collectively as Exhibit 5 ("Order Approving Sale of Filbert 9 Street Property"). 10 10. On March 5, 2019, Bank filed in this action a Notice of Motion and Motion for 11 Order (1) Instructing Receiver to Sell Real Property Asset of Receivership Estate; and (2) 12 Confirming Sale of Real Property [4018-4022 19th Street, San Francisco, CA] ("Motion for Order 13 Approving Sale of 19th Street Property"). 14 11. On March 6, 2019, XELAN filed in this action its Notice of Motion and Motion to 15 Have the April 6, 2018, October 12, 2018 and February 21, 2019 Sale Orders Declared Null and 16 Void ("Motion to Declare Orders Null and Void"). The Bank filed Opposition to the Motion to 17 Declare Orders Null and Void on March 15, 2019, and the Receiver filed a Joinder to the Bank's 18 Opposition on March 15, 2019. XELAN then filed on March 20, 2019 a 145 page Reply in 19 support of the Motion. 20 12. On April 12, 2019, XELAN's Motion to Declare Orders Null and Void was denied 21 pursuant to an Order, a true and correct copy of which is attached hereto as Exhibit 6 ("Order 22 Denying Motion to Declare Orders Null and Void"). 23 13. On March 11, 2019, XELAN filed in this action a Notice of Appeal and an 24 Amended Notice of Appeal from the Order Approving of Sale of Filbert Street Property ("Filbert 25 Street Appeal"), true and correct copies of which are attached hereto collectively as Exhibit 7. 26 14. On March 15, 2019, pursuant to the Superior Court's Order Approving of Sale of 27 Filbert Street Property, a Grant Deed was recorded in the San Francisco Assessor-Recorder's 28 Office, as Document No. DOC 2019-9K743182-00, transferring record title to the Filbert Street 67590139v1 3 DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN) 1 Property from the Receiver to a third party buyer, a true and correct copy of which is attached to 2 the Bank's accompanying Request for Judicial Notice in support of its Motion for Summary 3 Judgment as Exhibit 1. 4 15. On March 20, 2019, April 3, 2019 and April 9, 2019, XELAN filed Opposition to 5 Bank's Motion for Order Approving of Sale of 19th Street Property (collectively, the 6 "Opposition"). 7 16. The Bank and the Receiver then filed Replies on March 28, 2019 and April 8, 2019 8 in support of the Motion to Approve of the Sale of the 19th Street Property. 9 17. The Bank's Motion for Order Approving of Sale of 19th Street Property was 10 granted pursuant to an Order which was filed in this action on April 15, 2019 ("Order Approving 11 of Sale of 19th Street Property"), a true and correct copy of which is attached hereto as Exhibit 8. 12 18. On April 15, 2019, XELAN filed in this action a Notice of Appeal from the Order 13 Approving of Sale of 19th Street Property ("19th Street Appeal"), a true and correct copy of which 14 is attached hereto as Exhibit 9. 15 19. On May 13, 2019, pursuant to the Superior Court's Order Approving of Sale of 16 19th Street Property, a Grant Deed was recorded in the San Francisco Assessor-Recorder's Office, 17 as Document No. DOC 2019-K765936-00, transferring record title to the 19th Street Property 18 from the Receiver to a third party buyer, a true and correct copy of which is attached to the Bank's 19 accompanying Request for Judicial Notice in support of its Motion for Summary Judgment as 20 Exhibit 2. 21 20. On June 12, 2019, XELAN filed in this action its Notice of Appeal from the Order 22 Denying Motion to Declare Orders Null and Void and from the Receiver Instruction Order ("Null 23 and Void Order Appeal"), a true and correct copy of which is attached hereto as Exhibit 10. 24 PROCEEDINGS BEFORE THE COURT OF APPEAL 25 21. On April 23, 2019, the Bank filed its Motion to Dismiss the Filbert Street Appeal in 26 the Court of Appeal for the State of California, First Appellate District, Case No. A156993, a true 27 and correct copy of which is attached hereto as Exhibit 11 (without attached exhibits). On May 8, 28 2019, XELAN filed its Opposition to the Bank's Motion to Dismiss the Filbert Street Appeal, a 67590139v1 4 DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN) 1 true and correct copy of which is attached hereto as Exhibit 12. On May 13, 2019, the Bank filed 2 its Reply in support of its Motion to Dismiss the Filbert Street Appeal, a true and correct copy of 3 which is attached hereto as Exhibit 13. 4 22. On May 20, 2019, the Bank filed its Motion to Dismiss the 19th Street Appeal in 5 the Court of Appeal for the State of California, First Appellate District, Case No. A157061, a true 6 and correct copy of which is attached hereto as Exhibit 14 (without attached exhibits). 7 23. On August 7, 2019, the Bank filed its Motion to Dismiss the Null and Void Order 8 Appeal in the Court of Appeal for the State of California, First Appellate District, Case No. 9 A157863, a true and correct copy of which is attached hereto as Exhibit 15 (without attached 10 exhibits). On September 6, 2019, the Court of Appeal dismissed the XELAN Null and Void Order 11 Appeal pursuant to an unpublished opinion, a true and correct copy of which is attached hereto as 12 Exhibit 16. 13 24. On September 26, 2019, the Court of Appeal dismissed XELAN's appeals from the 14 Filbert Street Sale Order and the 19th Street Sale Order in an unpublished opinion, on the grounds 15 that the appeals were moot, a true and correct copy of which his attached hereto as Exhibit 17. 16 25. On November 7, 2019, the Court of Appeal issued a Remittitur with respect to the 17 XELAN Null and Void Order Appeal, a true and correct copy of which is attached hereto as 18 Exhibit 18. 19 26. On November 26, 2019, the Court of Appeal issued a Remittitur with respect to the 20 XELAN 19th Street Appeal and the XELAN Filbert Street Appeal, a true and correct copy of 21 which is attached hereto as Exhibit 19. 22 REQUEST FOR ADMISSIONS SERVED BY THE BANK 23 27. Attached hereto as Exhibit 20 is a true and correct copy of the Request for 24 Admissions (Set One) served by mail on XELAN on March 22, 2019 ("Request for Admissions"). 25 28. Attached hereto as Exhibit 21 is a true and correct copy of the Responses served by 26 XELAN to the Bank's Request for Admissions dated March 17, 2020 along with accompanying 27 Proof of Service and Verification (the "Responses to Request for Admissions"). 28 29. Set forth below are the admissions made by XELAN in its Responses to Request 67590139v1 5 DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN) 1 for Admissions (statements made in the Responses to the Request for Admissions have been 2 omitted and denominated with "….": 3 (a) REQUEST FOR ADMISSION NO. 1: 4 Exhibit 1 attached hereto is a true and correct copy of the FILBERT 5 STREET PROPERTY NOTE. 6 RESPONSE TO ADMISSION NO. 1: 7 Admit. 8 (b) REQUEST FOR ADMISSION NO. 2: 9 Exhibit 2 attached hereto is a true and correct copy of the FILBERT 10 STREET PROPERTY DEED OF TRUST. 11 RESPONSE TO ADMISSION NO. 2: 12 Admit. 13 (c) REQUEST FOR ADMISSION NO. 3: 14 Exhibit 2 attached hereto was recorded on August 14, 2013 in the Official 15 Records of the San Francisco County Recorder's Office at DOC-2013-J729297-00 beginning at 16 Reel K960, Image 0086. 17 RESPONSE TO ADMISSION NO. 3: 18 Admit. 19 (d) REQUEST FOR ADMISSION NO. 4: 20 Exhibit 3 attached hereto is a true and correct copy of the FILBERT 21 STREET PROPERTY ASSIGNMENT. 22 RESPONSE TO ADMISSION NO. 4: 23 Admit. 24 (e) REQUEST FOR ADMISSION NO. 5: 25 YOU signed the original of Exhibit 1 attached hereto. 26 RESPONSE TO ADMISSION NO. 5: 27 Admit. 28 (f) REQUEST FOR ADMISSION NO. 6: 67590139v1 6 DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN) 1 YOU signed the original of Exhibit 2 attached hereto. 2 RESPONSE TO ADMISSION NO. 6: 3 Admit. 4 (g) REQUEST FOR ADMISSION NO. 7: 5 YOU signed the original of Exhibit 3 attached hereto. 6 RESPONSE TO ADMISSION NO. 7: 7 Admit. 8 (h) REQUEST FOR ADMISSION NO. 8: 9 Exhibit 4 attached hereto is a true and correct copy of the 19TH STREET 10 PROPERTY NOTE. 11 RESPONSE TO ADMISSION NO. 8: 12 Admit. 13 (i) REQUEST FOR ADMISSION NO. 9: 14 Exhibit 5 attached hereto is a true and correct copy of the 19TH STREET 15 PROPERTY DEED OF TRUST. 16 RESPONSE TO ADMISSION NO. 9: 17 Admit. 18 (j) REQUEST FOR ADMISSION NO. 10: 19 Exhibit 5 attached hereto was recorded on June 28, 2013 in the Official 20 Records of the San Francisco County Recorder's Office at DOC-2013-J697776-00 beginning at 21 Reel K928, Image 0305. 22 RESPONSE TO ADMISSION NO. 10: 23 Admit. 24 (k) REQUEST FOR ADMISSION NO. 11: 25 Exhibit 6 attached hereto is a true and correct copy of the 19TH STREET 26 PROPERTY ASSIGNMENT. 27 RESPONSE TO ADMISSION NO. 11: 28 Admit. 67590139v1 7 DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN) 1 (l) REQUEST FOR ADMISSION NO. 12: 2 YOU signed the original of Exhibit 4 attached hereto. 3 RESPONSE TO ADMISSION NO. 12: 4 Admit. 5 (m) REQUEST FOR ADMISSION NO. 13: 6 YOU signed the original of Exhibit 5 attached hereto. 7 RESPONSE TO ADMISSION NO. 13: 8 Admit. 9 (n) REQUEST FOR ADMISSION NO. 14: 10 YOU signed the original of Exhibit 6 attached hereto. 11 RESPONSE TO ADMISSION NO. 14: 12 Admit. 13 (o) REQUEST FOR ADMISSION NO. 15: 14 YOU did not provide to PLAINTIFF financial statements in December of 15 2017. 16 RESPONSE TO ADMISSION NO. 15: 17 Admit….. 18 (p) REQUEST FOR ADMISSION NO. 16: 19 YOU did not provide to PLAINTIFF YOUR 2014 tax returns. 20 RESPONSE TO ADMISSION NO. 16: 21 Admit….. 22 (q) REQUEST FOR ADMISSION NO. 19: 23 YOU did not provide to PLAINTIFF YOUR 2017 tax returns. 24 RESPONSE TO ADMISSION NO. 19: 25 Admit…. 26 (r) REQUEST FOR ADMISSION NO. 20: 27 YOU did not provide to PLAINTIFF YOUR 2014 tax operating statements 28 relating to the FILBERT STREET PROPERTY. 67590139v1 8 DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN) 1 RESPONSE TO ADMISSION NO. 20: 2 Admit…. 3 (s) REQUEST FOR ADMISSION NO. 23: 4 YOU did not provide to PLAINTIFF YOUR 2017 tax operating statements 5 relating to the FILBERT STREET PROPERTY. 6 RESPONSE TO ADMISSION NO. 23: 7 Admit…. 8 (t) REQUEST FOR ADMISSION NO. 24: 9 YOU did not provide to PLAINTIFF YOUR 2014 profit and loss statements 10 relating to the FILBERT STREET PROPERTY. 11 RESPONSE TO ADMISSION NO. 24: 12 Admit. 13 (u) REQUEST FOR ADMISSION NO. 27: 14 YOU did not provide to PLAINTIFF YOUR 2017 profit and loss statements 15 relating to the FILBERT STREET PROPERTY. 16 RESPONSE TO ADMISSION NO. 27: 17 Admit…. 18 (v) REQUEST FOR ADMISSION NO. 30: 19 YOU did not provide to PLAINTIFF YOUR 2014 tax operating statements 20 relating to the 19TH STREET PROPERTY. 21 RESPONSE TO ADMISSION NO. 30: 22 Admit…. 23 (w) REQUEST FOR ADMISSION NO. 33: 24 YOU did not provide to PLAINTIFF YOUR 2017 tax operating statements 25 relating to the 19TH STREET PROPERTY. 26 RESPONSE TO ADMISSION NO. 33: 27 Admit…. 28 67590139v1 9 DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN) 1 (x) REQUEST FOR ADMISSION NO. 34: 2 YOU did not provide to PLAINTIFF YOUR 2014 profit and loss statements 3 relating to the 19TH STREET PROPERTY. 4 RESPONSE TO ADMISSION NO. 34: 5 Admit…. 6 (y) REQUEST FOR ADMISSION NO. 37: 7 YOU did not provide to PLAINTIFF YOUR 2017 profit and loss statements 8 relating to the 19TH STREET PROPERTY. 9 RESPONSE TO ADMISSION NO. 37: 10 Admit….. 11 (z) REQUEST FOR ADMISSION NO. 40: 12 As of January 29, 2018, PLAINTIFF revoked YOUR right to collect and 13 retain payments received by YOU for the FILBERT STREET PROPERTY. 14 RESPONSE TO ADMISSION NO. 40: 15 Admit. 16 (aa) REQUEST FOR ADMISSION NO. 41: 17 As of January 29, 2018, PLAINTIFF revoked YOUR right to collect and 18 retain payments received by YOU for the 19TH STREET PROPERTY. 19 RESPONSE TO ADMISSION NO. 41: 20 Admit. 21 (bb) REQUEST FOR ADMISSION NO. 42: 22 On October 3, 2017, the City and County of San Francisco filed multiple 23 Personal Property Judgment Liens against DEFENDANT by which the City and County of San 24 Francisco was granted a judgment lien on DEFENDANT's accounts receivable and equipment. 25 RESPONSE TO ADMISSION NO. 42: 26 Admit. 27 (cc) REQUEST FOR ADMISSION NO. 43: 28 On November 16, 2017, the City and County of San Francisco filed a 67590139v1 10 DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN) 1 Personal Property Judgment Lien against DEFENDANT by which the City and County of San 2 Francisco was granted a judgment lien on DEFENDANT's accounts receivable and equipment. 3 RESPONSE TO ADMISSION NO. 43: 4 Admit. 5 (dd) REQUEST FOR ADMISSION NO. 44: 6 On December 26, 2017, an Order was entered granting the City and County 7 of San Francisco's Renoticed Motion for Assignment Order of Rights and Turnover Order in the 8 action entitled City and County of San Francisco etc. v. Anne Kihagi, etc., et al., San Francisco 9 Superior Court Case No. CGC-15-546152 ("Assignment Order"). 10 RESPONSE TO ADMISSION NO. 44: 11 Admit. 12 (ee) REQUEST FOR ADMISSION NO. 49: 13 On February 27, 2018, PLAINTIFF accelerated all unpaid obligations owed 14 by YOU under the terms of Exhibit 1 attached hereto. 15 RESPONSE TO ADMISSION NO. 49: 16 Admit…. 17 (ff) REQUEST FOR ADMISSION NO. 50: 18 On February 27, 2018, PLAINTIFF accelerated all unpaid obligations owed 19 by YOU under the terms of Exhibit 4 attached hereto. 20 RESPONSE TO ADMISSION NO. 50: 21 Admit…. 22 THE DISTRICT ACTION AND THE JAMS ARBITRATION 23 30. On May 16, 2019, XELAN et al. commenced an action against Bank by the filing 24 of their Complaint in the United States District Court for the Central District of California 25 ("District Court Complaint") in the action entitled Anna Kihagi, an individual and XELAN Prop 1, 26 LLC, etc. v. Umpqua Bank, et al., United States District Court for the Central District of 27 California, Case No. 2:19-cv-04284-CJC (the "District Court Action") alleging the following 28 Claims for Relief: 1. Breach of Contract; 2. Breach of Fiduciary Duty; 3. Intentional 67590139v1 11 DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN) 1 Misrepresentation; 4. Negligent Misrepresentation; 5. Concealment; 6. Interference With Contract; 2 7. Interference With Prospective Economic Advantage; 8. Negligence; and 9. Promissory 3 Estoppel, a true and correct copy which attached as Exhibit 22. 4 31. Thereafter, the Bank filed a Motion in the District Court Action to compel 5 arbitration of the claims alleged in the District Court Complaint that was granted pursuant to an 6 order, a true and correct copy of which is attached hereto as Exhibit 23 ("Order Granting Motion 7 to Compel Arbitration"). 8 32. On June 14, 2019, the Bank filed its Demand for Arbitration with the Judicial 9 Arbitration and Mediation Service (the "JAMS Arbitration") to which was attached the District 10 Court Complaint filed in the District Court Action. On October 25, 2019, XELAN et al, filed their 11 Amended Arbitration Petition in the JAMS Arbitration which contained claims for relief for 1. 12 Breach of Contract, 2. Promissory Fraud, 3. Promissory Estoppel, 4. Declaratory Relief, and 5. 13 Unfair Competition, a true and correct of which is attached hereto as Exhibit 24 (the "Amended 14 Arbitration Petition"). 15 33. On November 15, 2019 the Bank filed in the JAMS Arbitration its Notice of 16 Motion and Motion to Dismiss Claimants' Amended Arbitration Petition and accompanying 17 Memorandum of Points and Authorities ("Motion to Dismiss"), with the hearing on the Motion 18 deferred until March 10, 2020. On May 6, 2020, a final award was entered in the JAMS 19 Arbitration granting the Bank's Motion to Dismiss and awarding the Bank attorneys' fees and costs 20 and arbitration fees, a true and correct of which is attached hereto as Exhibit 25 (the "Final 21 Arbitration Award"). 22 I declare under penalty of perjury under the laws of the State of California that the 23 foregoing is true and correct. 24 25 DATED: May 21, 2020 26 _____________________________________ 27 ROBERT B. KAPLAN, Declarant 28 67590139v1 12 DECLARATION OF ROBERT B. KAPLAN ISO MOTION FOR SUMMARY JUDGMENT (XELAN)