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STEVEN B. PISER, SBN 62414
LAW OFFICES OF STEVEN B. PISER
A Professional Corporation
California
1970 Broadway, Suite 600
Oakland, 94612
Telephone: (510) 835-5582
JOHN L. FITZGERALD, SBN 126613
LAW OFFICES OF JOHN L. FITZGERALD
177 Bovet Road, Suite 600
San Mateo, California 94402
Telephone: (650) 638-2386
john j Ift tzgeraldlaw.corn
Attorneys for DBP INVESTMENTS,
a California General Partnership
10
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
IN AND FOR THE COUNTY OF SAN MATEO
13
14
DBP INVESTMENTS, a California General ) LEAD CAsE No: CIV53SS97
15 Partnership, )
) (CONSOLIDATED WITH CASE NO.
16 Plaintiff, ) 19CIV07118)
)
17 V. )
) DBP INVESTMENTS'RIAL BRIEF
18 KING PLAZA CENTER, LLC, a Delaware )
Limited Liability Company, BUA-QUACH, ) DATE FEBRDARY 6v 2023
19 an individual, SOVAN LIEN, an individual, ) TIME 9I00 A.M.
DONG VUONG, an individual, THANH ) DEPT. 21
20 LAI, and DOES 1through 10 )
)
Defendants. )
22 "An unrecorded instrument is valid as between the parties thereto
thereof."'n and those who have notice
2000, DBP and King Plaza Partners ("Litke'*), defendant King Plaza Center's
predecessor in interest, owned King Plaza as tenants in common. DBP and Litke had been
tenants in common since 1990, when DBP conveyed a 50% interest to Litke. As part of the
27
28 'Civ. Code, I1217.
IKing Plaza Partners is referred to as Litke, defendant, King Plaza Center as King.
Lan Offsets of
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DBP IN vssrMRNrs'RIAL BRIRP
conveyance, it was agreed, "{A)ll available parking spaces on both Seller's parcel and the other'
parcel may be used by both parties for the benefit of the businesses occupying Buyer's or
Seller's parcel," and a recital that "[T]he parties shall maintain mutual interests in the parking
facilities of the property..." The purchase agreement also recited, "After subdivision the parties
agreed the parking rights would be articulated in a recorded document which shall set forth the
above rights in the form of reciprocal easements..."
And, after subdivision," the parties did articulate their "mutual interests in the parking
facilities" with King's predecessor in interest, Litke. It is in a Reciprocal Easement and
Operation Agreement {"Easement").
10 Apart from the parties'greement, the City of Daly City required shared parking as a
condition of approval of the subdivision. Of the many requirements the City mandated the
12 parties provide, "A provision to allow shared parking for patrons of all uses in Parcel A, Parcel
13 B."'4A-I and
The easement was one way the parties complied with the City's requirement. The
"Reciprocal Easement and Operation Agreement is entered into January 11, 1997, to be effective
16 on the date is recorded in the official records of San Mateo County." There is a recital referring
17 to the contemplated conveyance of the parcels and timing of the effectiveness of the easement:
18 "Concurrently herewith, DBP and KPP [Litke] have conveyed Parcel A, as shown on the Map,
19 to DBP {the 'DBP Parcel', and Parcel B, as shown on the Map, to KPP [Litke] {the 'KPP
20 [Litke] Parcel'. o This is important because at the time the easement was executed, the parties
21 did not know when the approval process would be complete.
Joint owners of property cannot agree to provide an easement to each other. "A servitude
23
'By its terms, the purchase agreement was "binding upon... and shall inure to the benefit of the parties... and
24 successors." Ex 102, sections 1.3 and 15.
4The easement is Exs. 103 and 104. The differences between the two are the signatures of then partners oF DBP,
25 Bocci, Devincenzi and Pender were affixed in 1997 on 103 and 2000 on 104. Exhibit 104 also contains recording
information and the identity of the parcels.
26 'Exhibit 106, section II.A. f.
'The agreement attached to the complaint was signed by Litke in 1997. It was signed by DBP in 2000. The
27 agreement is dated 1997. There are also signature pages for DBP executed in 1997. The attorneys involved in the
easement are no longer with us. The records of the City of Daly City have the fully executed easement with an
28 execution date of 1997, by all parties.
'Ex 104," Recitals" page 2.
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cannot be held by the owner of the servient tenement." (Civ. Code, $ 805.)s The statute "avoid[s]
nonsensical easements—where they are without doubt unnecessary because the owner owns the
estate." (Taritvala v. Mack (2022) 84 Cal.App.5th 807, 811.) This explains why it was to be
"effective" upon recordation tied to the concurrent conveyance of the two parcels.
Keying the "effective date" to recording made sense, as it was understood recording
would take place through an escrow opened with Fidelity National Title, and coincide with the
recording of the grant deeds conveying the parcels subject to the lot split to DBP and Litke.
The Agreement contained other recitals, which, under Evidence Code Section 622, "are
conclusively presumed to be true as between the parties thereto, or their successors in interest."
10 These recitals are crucial to the assessment of the parties'ights and duties:
DBP and KPP [Litkej desire to grant to each other mutual and
12 reciprocal easements over their respective parcels for the purposes
13 of providing common parking, ingress and egress to each
14
others'arcel
and utility service, and to set forth their agreement with
respect to the maintenance, repair and operation of certain
16 improvements thereon. The conveyances of Lot A to DBP and Lot
17 B to KPP jLitkej are subject to the terms and conditions of this
18 Agreement. (Emphasis added.)
19 On September 25, 2000, a Certificate of Compliance, determining that the property had
20 been divided from a division in compliance with the Subdivision Map Act subject to the Daly
21 City Ordinance was recorded. 9 The subdivision was finalized on October 5, 2000 when the then
22 tenants in common executed deeds conveying separate interests in the parcels. On November 14,
23 2000, Fidelity recorded the grant deed conveying Parcel B to DBP grant deed conveying Parcel
24 A to Litke; and the grant deed conveying Parcel B to DBP. 'ut unbeknownst to DBP—and
apparently, Litke—Fidelity failed to record the easement.
26
"The land to which an easement is attached is called the dominant tenement [or estatel; the land upon which a
27 burden or servitude is laid is called the servient tenement [or estate]." (Civ. Code, 11803.)
'See DBP's trial exhibit 107, the Certificate of Compliance. On Exhibit II to that is the "New Legal Descriptions"
28 which identifies King's parcel as "Parcel B."
"Exs. 108 and 109.
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Litke and DBP Perform Under the Terms of the Easement.
The easement, executed while the property was in joint ownership, was to be effective
when recorded (once the conveyance was accomplished). But it was not recorded. King'
predecessor and DBP's actions and behavior demonstrate, in the words of Litke, that they "had
been operating on it for many years with no issues."" During the twenty two years the easement
has been operative, DBP paid $ 135,064 to Litke from 2001 to 2007. DBP paid King $ 657,522
from 2007 to 2022. The payments were required by the easement and Civil Code Section 845.
King Purchases Litke's Interest in Parcel, and Becomes the Successorin Interest.
In 2007, Litke sold its interest (Parcel B) to King, a Delaware Limited Liability
10 Company controlled by the Ho family
The Ho family conducted extensive due diligence, reviewing and signing between "100
12 pages (possibly 200+)" of documents. Included was the easement, which underwent extensive
13 review and analysis resulting in many inquiries with CPA, Sabrina Ho asking detailed questions.
14 She even requested Litke modify the agreement regarding maintenance cost split, timing of
15 reimbursement for common area expenses and inclusion of a "penalty clause" if payments by
16 DBP were not made in a timely fashion.'s. Ho was advised that if she "wanted to redraft the
17 agreement with the owners of the bowling alley after you own the building that is up to you." No
18 member of the Ho family reached out to DBP to discuss the agreement until it brought its now
dismissed cross-complaint to enforce it.
20 But, on March 7, 2007, at the demand of Litke as a condition of close of escrow on the
21 sale to King, King acknowledged receiving the unrecorded instrument, that it was "executed by
all parties" and "delivered to Fidelity National Title Company and they [Fidelity] failed to record
23 that agreement."'he acknowledgement, signed by Tammy Ho, provided notice to King of the
24 "unrecorded instrument." Jeanne Ho, a Ulcc President at Wells Fargo Bank, who is a real estate
25 loan oflicer, and her sister, Sabrina, a licensed CPA, who holds an MBA from Cal's Haas
School of Business, reviewed the easement as did King's legal counsel.
27
"Ex 115, email trom Stella Chu to Sabrina Ho of February 14, 2007.
28 "Ex 114, email from Sabrina Ho to Stella Chu of February 9, 2007.
"Ex. 118,
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King—again, with actual knowledge of the easement—knew it was bound by its terms:
"[T]he covenants and agreements contained in this Agreement
shall run with the land and (are) binding and inure to the benefit of
the parties hereto, their respective heirs, successors, assigns,
representatives, lessees and all other persons acquiring all or any
portion of the Parcels, or any improvements thereon, or any
interest therein, whether by operation of law or in any manner
whatsoever.... all other persons acquiring all or any portion of the
Parcels."'4
And when King took over ownership, its actions remained consistent with the easement.
King readily accepted the benefits. For over twenty years, DBP has been invoiced and has paid
12 Litke and King over $ 657,522 for common area expenses, including a bill for $ 107,202.38
13 representing DBP's one-half share to repave the shopping center parking lot in 2015. These
maintenance payments are required by the Agreement and Civil Code section 845(b) which says:
15 If the easement is owned by more than one person, or is attached
to parcels of land under different ownership, the cost of
17 maintaining it in repair shall be shared by each owner of the
18 easement or the owners of the parcels of land, as the case may be,
pursuant to the terms of any agreement entered into by the parties
20 for that purpose. In the absence of an agreement, the cost shall be
shared proportionately to the use made of the easement by each
22 owner.
23 In a Pleading andin Sworn Discovery Responses, King Admits the Validity of the
24 Easement.
25 King went a step further in its efforts to invoke the benefit of the easement. On August 1,
2016, it filed a cross-complaint, as "a successor party to a written agreement with DBP regarding
their respective rights pertaining to the use of the Adjacent Common Area." (Cross-Complaint,
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"Ex. 104, section 12 "Transferability; Covenants Running With the Land."
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DBP INTKSTMKNTK'RIAL BRIKK
1[26.)" The cross-complaint alleged that "an actual controversy has arisen and now exist
between King and DBP concerning their respective rights and duties under the aspects of the
written agreement pertaining to DBP's use of parking spaces on King's Property ..." —the
2L)'BP
very contract it now claims to be ineffective. (Cross-complaint, $
did not dispute the issue. On September 2, 2016, DBP filed an answer, alleging,
"Cross-defendant admits that DBP and King Plaza Center entered into a written agreement, and
that King Plaza Center is a successor party to the written agreement which concerns the
respective rights pertaining to the use of the Adjacent Common Area, as alleged and referenced
in paragraphs 8, 21, 26 of the cross-complaint." (Answer, p. 2;4-7.) Consequently, "[t]he factual
10 allegation[s] [set forth in paragraphs 8, 21 and 26] are removed from the issues in the litigation
because the parties agree as to its truth." (Barsegian v. Kessler dv Kessler (2013) 215
Cal.App.4th 446, 452.)
"The admission of fact in a pleading is a 'judicial admission.'" (Valerio v. Andrew
14 Yottngquist Construction (2002) 103 Cal.App.4th 1264, 1271 .) A judicial admission in a
15 pleading is not merely evidence of a fact; it is a conclusive concession of the truth of the matter.
16 (Addy v. Bliss d Glennort (1996) 44 Cal.App.4th 205, 218.) "Well pleaded allegations in the
17 complaint are binding on the plaintiff at trial." (4 Witkin, Cal. Procedure (5th ed. 2008)
18 Pleading, 455, p.
I't 587.) "[T]he trial court may not ignore a. judicial admission in a pleading, but
19 must conclusively deem it true as against the pleader." (Titurman v. Bayshore Transit
20 Management, Inc. (2012) 203 Cal.App.4th 1112, 1155.)
21 But the pleading wasn't the end of it. King recognized, under penalty of perjury, the
22 binding nature of the easement:
23 Concurrently with the process of seeking approval for the
24 Consolidation and Redevelopment, DBP and KPP [Litke] entered
into a written agreement regarding various topics, including
parking and maintenance of certain portions of the newly
27
"On February 19, 2020, King dismissed its cross-complaint without prejudice.
28 IIKing's cross-complaint also sought damages for breach of the Agreement, representing "one-half of the costs
incurred in maintaining and repairing the Adjacent Common Area." (Cross-Complaint, $ 30.)
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DBP ravssTMKNTs'RIAL BRIER
consolidated Adjacent Parcels: the "DBP Common Area" which
comprises portions of the land located on the DBP Property,
owned by DBP; and the "KPP [Litke] Common Area," which
comprises portions of land located on the King Property, then
owned by KPP [Litke], and now owned by
King.'ing
also contended that DBP breached the Agreement by "overburdening the
easement,'* "fail[ing] to pay 50% of the maintenance and repair costs for the common area as
required by the contract," and by "fil[ing] this lawsuit without first attempting mediation or
arbitration" "contrary to the requirements of the written easement agreement."
10 In these same sworn responses, King stated that the Agreement was unenforceable, but
only "in part." "By filing suit and propounding discovery without attempting mediation in good
12 faith and without pursuing arbitration, Plaintiff has waived its right to enforce those terms of the
13 written easement agreement."'ing has not claimed that the Agreement was unenforceable in
14 any other respect.
15 King Notv Ciaims the Agreement Never Came Into Being.
16 Nearly twenty years after the execution of the Agreement, and nearly a decade after it
17 purchased the shopping center, and collecting over $ 500,000 for common area expenses, and
18 after suing to enforce the Agreement, King now says the Agreement never came into existence.
King need not honor the Agreement, because it was not recorded.
20 Is it equitable for the court permit a party to accept the benefits of an agreement from
21 another party, require the other party to comply with the terms of an agreement, and sue to
22 enforce the terms of the agreement, and then, years later, change its mind to say no agreement
ever existed?
ICing Is Estopped and Has Waived Any Bight to Chaiienge the Agreement.
25 King is estopped from and has waived any right to claim the lack of the recording gives it
26 the right to back out of the Agreement.
27
28 "King Answer to Form Interrogatory 15. L
"DBP does not dispute this.
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DBP tnvssTAIENTs'RIAL BRIEF
"A party to a contract may by conduct or representation waive the performance of a
condition thereof or be held estopped by such conduct or representations to deny that he has
waived such performance." (Pattno v. Russo (1952) 82 Cal.App.2d 408, 412.) The Evidence
Code addresses this very situation, labelling it a conclusive presumption.
Whenever a party has, by his own statement or conduct,
intentionally and deliberately led another to believe a particular
thing true and to act upon such belief, he is not, in any litigation
arising out of such statement or conduct, permitted to contradict it.
(Evid. Code, tj623.)
10 A condition is waived when a promisor by his words or conduct justifies the promisee in
believing that a conditional promise will be performed despite the failure to perform the
condition, and the promisee relies upon the promisor's manifestations to his substantial
13 detriment." (Sosin v. Richardson (1964) 210 Cal.App.2d 258, 264.)
14 King knew about the easement and understood DBP has the right to use the "KPP
15 Common Area" under the easement. King accepted the payments for common area charges, with
16 full knowledge that DBP was paying them in satisfaction of its obligations under the easement,
17 knowing the easement had not been recorded. King met with and exchanged emails about
18 parking at the Center—numerous discussions about deliveries, employee parking, parking
19 enforcement—but never once suggested to DBP that it did not enjoy the benefits of a binding
20 easement.
Behind the scenes, the Hos'rue intentions were revealed. In an April 14, 2012 email,
22 discussing a meeting with Steve DeVincenzi, a partner in DBP, and the then general manager of
23 Classic Bowl, Edmond Ho wrote his sisters:
24 We talked about the verbal agreement between Classic and the
25 previous owners of King Plaza to share the parking lot. It was a
verbal agreement between Classic and the previous owners of
27 King Plaza to share the parking lot, and to split the costs to
28 maintain it. However legally we own the parking lot entirely and it
LSIv offices of
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DDP INYKRTMKNTs'RIAL BRIKS
was made clear in the meeting that we could screw them over if
we wanted to, but Mom said we have no intention of ever doing
such a mean thing. (I love how Mom brings it up just to "reassure"
then we won') David kept quiet in this part because he knows that
Mom and him have both done research in the area that Classic, on
paper, anywhere in the City records, has no parking lot. And if we
ever wanted to not allow them to use the parking, we technically
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'2 could...although it would be very messy.
$ 400,000 for common area expenses.
estoppel.
Steve kept pushing the
point that we have a verbal agreement, but you can tell that he
knows that legally, we have him by the balls.
King knew what DBP did not: that the easement had not been recorded. King then kept it
a secret, never intimating that it would claim the easement was unenforceable. King wanted to
continue to retain the benefits, without giving any warning that it did intend to abide by the
easement. During the nine years following Edmond Ho's email, King billed and DBP paid over
King's conduct constitutes both a waiver and estoppel. "The term 'waiver's sometimes
used indiscriminately to refer to the doctrine of waiver, and the distinct but similar doctrine of
'Waiver refers to the act, or the consequences of the act, of one side. Waiver is the
intentional relinquishment of a known right after full knowledge of the facts and depends upon
party.'hus,
the intention of one party only. Waiver does not require any act or conduct by the other
21 '[tjhe pivotal issue in a claim of waiver is the intention of the party who allegedly
relinquished the known legal right.'[Ejstoppel is applicable where the conduct of one side has
induced the other to take such a position that it would be injured if the first should be permitted
24 to repudiate its acts." ' (Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006)
25 144 Cal.App.4th 1 175, 1 190.)(citations omitted.)
"This form of estoppel is, for practical purposes, indistinguishable from the doctrine of
implied waiver through conduct." (Id.) "The waiver may be either express, based on the words
28
NEx 122, email April 14, 20 12, from Edmond Ho to his sisters Sabrina and Jeanne.
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DBP INYEsTMENTs'RIAL BRIEE
1 of the waiving party, or implied, based on conduct indicating an intent to relinquish the right."
2 (II aller v. Truck lns. Exchange, Inc. (1995) 11 Cal.4th I, 31.) "Implied waiver, especially where
3 it is based on conduct manifestly inconsistent with the intention to enforce a known right, may
4 be determined as a matter of law where the underlying facts are undisputed," (Oakland Raiders
5 v. Oakland-Alameda County Coliseum, Inc. supra, 144 Cal.App.4th at 1191.)
6 Evidence of King's intent is not necessary. "An estoppel in pais may be found even
7 though the person estopped did not actually intend to defraud or mislead." (Lovett v. Point Lorna
8 Development Corp. (1968) 266 Cal.App.2d 70, 76.) In any event, "[w]hether denominated
9 "estoppel" or 'implied waiver as a matter of law,'he operative principle is exactly the same—
10 where a party's conduct is so inconsistent with the intent to enforce a legal right, the intention to
11 give up that right will bepresumed, notwithstanding evidence that the party did not subjectively
12 "intend" to relinquish it." (Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006)
13 144 Cal.App.4th 1175, 1194)(emphasis added.)
14 King Now Claims the Agreement Was Ambiguous.
15 King has claimed that the easement is indefinite, suggesting that the boundaries of the
16 easement are not described in the Reciprocal Easement and Operating Agreement. In responses
17 to interrogatories, King contended "the identity of the parcel at issue" was ambiguous. But there
18 is no ambiguity about the scope of the parking easement.
The Agreement describes the easement for parking:
20 (c) Easement for Parkinu. A non-exclusive easement and right to
21 use the parking spaces located within the KPP [Litke] Common
22 Area for the parking...
(REOA, t]3(c).)
24 The Agreement defines the Litke, now King, Common Area as:
25 (b) The term "KPP [Litke] Common Area" shall mean all public
26 and common facilities erected on the KPP Parcel intended for
27 common use, including but not limited to, entrances, exits,
28 driveways, access roads, parking areas, sidewalks drives,
Low Offices of
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DBP IN VKSTMKNTS'RIAL SRlKF
directional signs, lighting facilities (excluding lighting attached to
buildings constructed to the KPP [Litke] Parcel other than lighting
attached to the dental building located on the KPP [Litke] Parcel
specifically intended for illumination of the upper parking lot...
(REOA, tjl(b).)
The Agreement also identifies the Assessor's Parcel Numbers on the face of the
7 instrument: APN: 091-171-150; 901-175. 180; 091-175-190 —the satne parcels identified in the
8 grant deeds.
Even if some ambiguity or uncertainty about the scope of an easement grant existed, the
10 surrounding circumstances, including the physical conditions and character of the servient
11 tenement and the requirements of the grantee, play a significant role in the determination of the
12 controlling intent. (Scruby v. Vintage Grapevine, lnc. (1995) 37 Cal.App.4th 697, 702-705.) The
13 surrounding circumstances leave no doubt that the easement can be reasonably construed as
14 granting DBP the right to use King Plaza lot for parking.
15 King Cannot Be Permitted to 'IBlous Hot and Cold, "
16 King's conduct, in its dealings with DBP and the positions it has asserted in this six plus
17 year legal saga, is clear: It adopts a position when it suits it, only to abandon it when it works to
18 its disadvantage. For the last fifteen years, King insisted that DBP abide by its contractual
19 obligations — even suing to enforce those rights. But when faced with the burden of that very
20 contract, King is quick to deny those obligations.
"It seems patently wrong to allow a person to abuse the judicial process by first
22 [advocating] one position, and later, if it becomes beneficial, to assert the opposite." (Jackson v.
23 County of Los Angeles (1997) 60 Cal.App.4th 171, 181.) The law has created doctrines to
24 prevent a party from "blowing hot and cold in the same breath." 'hey are known as waiver,
25 estoppel, and laches.
26 The issue to be adjudicated is narrow: DBP seeks "a declaration from this court that the
"National City v. California tVater & Tel. Co. (1962) 204 Cal.App.2d 540, 551.
Letv Offices ef
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DBP INVESTMENTS'RIAL BRIEF
Reciprocal Easement and Operation Agreement is effective, even though is not recorded."
'AW
OFFICES OF STEVEN B. PISER
A Professional Corporation
LAW OFFICES OF JOHN L. FITZGERALD
DATED: January 27, 2023 By:
IIÃ . IBKALD
Attorne DBP Investments,
a Calif 'a General Partnership
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"Complaint for Declaratory Relief, p.6;3-5.
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DBP tNvasTMKNTs'RIAL BRIKS
POS-050/EFS-050
ATTORNEYORPARTYWITHCUTATTORNEY'TATE BAR NO: 126,613 FOIT COURT USE ONLY
NAME:John L.Fitzgerald
FIRM NAME: Law Oilices of John L. Fitzgerald
BTREETADDREss: 177 Bovet Road, Suite 600
cia vt San Mateo 8TATE:CA 94402
ZIP coDE:
TELEPHQNE Noc 650-638-2386 FAX NO. t
john@jlfitzgeraldlaw.corn
EtuAIL ADDREBB:
ATTORNEY FOR tnemei:
Plaintiff DBP InVeStmentS
SOPERIOR COURT OF CALIFORNIA, COUNTY OF San Francisco
sTREEr AooREss: 400
County Center
MAILING ADDRESS:
cooE Redwood City, CA 94063
DITY AND ZIP
BRANCH NAME;
CASE NUMBER:
PLAINTIFF/PETITIDNERIDRp fnvnefnnnf CIV538897
DEFENDANT/RESPONDENT: xlnn plnvn CAnfaf JUDICIAL OFFICER:
II r Pf NI
Honorable Robert D. Foilss
DEPAR1MEN'r
PROOF OF ELECTRONIC SERVICE
21
1. Iamatlsast18yearsold.
a. My residence or business address is (spec/fy):
Law Offices of John L. Fitzgerald
1?7 Bovet Road
San Mateo, CA 94402
b. My electronic service address is (specify)/
john@jlfitzgeraldiaw.corn
2 I electronically served the following documents (exact tides)/
DBP Investments'rial Brief
~ The documents served are listed in an attachment. (Form POS-050(D)?EFS-050(D) may be used for this purpose.)
3. I electronically served the documents listed in 2 as follows:
a. Name of perso'n served: Steven McLellan
On behalf of (nsme or names of part/es represented, if person served is en attorney)/
Defendant King Plaza Center, LLC
b. Electronic service address of personserved:
sdm@gedlaw.corn
c. On (date)/ Januarv 27, 2023
~x The documents listed in item 2 were served electronically on the persons and in the manner described in an attachment.
(Form POS-050(P)/EFS050(P) may be used for Ih/s purpose.)
Date: Januarv 27.2023
Ideclare under penalty of perjury under the laws of the State of California that the for~pi
g is t d correct.
JOHN L. FITZGERALD
/TYPE OR PRINT NAME OF DECLARANT)
Page 1 of I
Fem AFFroved for Optional Uae PROOF OF ELECTRONIC SERVICE Cal. Roice of Court, rule 2.251
Judlctal Council of Cagmmla emv coune ca gov
PD$ 050/EFs-050 IRev. February I, 2012/(Proof of Service/Electronic Filing and Service)
POS%50(P}/EFS4)50(P}
SHORT TITLE: CASE NUMBER:
DBP Investments, et al CIV538897 !
ATTACHMENT TO PROOF OF ELECTRONIC SERVICE (PERSONS SERVED)
(This sltschmsnl is for uss with form POS-050/EFS-050.)
NAMES, ADDRESSES, AND OTHER APPLICABLE INFORMATION ABOUT PERSONS SERVED:
Name of Person Served Electronic Service Address Date of Electronic Service
(lf the person ssnrsd is sn attorney,
the party or parties represented should
also be slated.)
Date: January 27, 2023
Janet Fogarty (King Plaza) j fogartylawfirm@yahoo.corn
Date: Januarv 27, 2023
Steven B. Piser (DBP) esperanza@stevenpiser.corn&
Date: January 27, 2023
James Barret (Quach) jb@ja mes berrettlaw.corn
Date:
Date:
Date:
Date:
Date:
Date:
Date:
Date:
Date:
Eorm APProvsd for CPuorml usa
ATTACHMENT TO PROOF OF ELECTRONIC SERVICE (PERSONS SERVED)
Judicial Council of Capfomla Page 2 Cl 2
PCE-000(P)lepeaf50(P) (Proof of Service/Electronic Filing and Service)
Fsdrusrf 1, 2017)
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STEVEN B. PISER, SBN 62414 LAW OFFICES OF STEVEN B. PISER A Professional Corporation California 1970 Broadway, Suite 600 Oakland, 94612 Telephone: (510) 835-5582 JOHN L. FITZGERALD, SBN 126613 LAW OFFICES OF JOHN L. FITZGERALD 177 Bovet Road, Suite 600 San Mateo, California 94402 Telephone: (650) 638-2386 john j Ift tzgeraldlaw.corn Attorneys for DBP INVESTMENTS, a California General Partnership 10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 IN AND FOR THE COUNTY OF SAN MATEO 13 14 DBP INVESTMENTS, a California General ) LEAD CAsE No: CIV53SS97 15 Partnership, ) ) (CONSOLIDATED WITH CASE NO. 16 Plaintiff, ) 19CIV07118) ) 17 V. ) ) DBP INVESTMENTS'RIAL BRIEF 18 KING PLAZA CENTER, LLC, a Delaware ) Limited Liability Company, BUA-QUACH, ) DATE FEBRDARY 6v 2023 19 an individual, SOVAN LIEN, an individual, ) TIME 9I00 A.M. DONG VUONG, an individual, THANH ) DEPT. 21 20 LAI, and DOES 1through 10 ) ) Defendants. ) 22 "An unrecorded instrument is valid as between the parties thereto thereof."'n and those who have notice 2000, DBP and King Plaza Partners ("Litke'*), defendant King Plaza Center's predecessor in interest, owned King Plaza as tenants in common. DBP and Litke had been tenants in common since 1990, when DBP conveyed a 50% interest to Litke. As part of the 27 28 'Civ. Code, I1217. IKing Plaza Partners is referred to as Litke, defendant, King Plaza Center as King. Lan Offsets of Steven B. Ptsev I DBP IN vssrMRNrs'RIAL BRIRP conveyance, it was agreed, "{A)ll available parking spaces on both Seller's parcel and the other' parcel may be used by both parties for the benefit of the businesses occupying Buyer's or Seller's parcel," and a recital that "[T]he parties shall maintain mutual interests in the parking facilities of the property..." The purchase agreement also recited, "After subdivision the parties agreed the parking rights would be articulated in a recorded document which shall set forth the above rights in the form of reciprocal easements..." And, after subdivision," the parties did articulate their "mutual interests in the parking facilities" with King's predecessor in interest, Litke. It is in a Reciprocal Easement and Operation Agreement {"Easement"). 10 Apart from the parties'greement, the City of Daly City required shared parking as a condition of approval of the subdivision. Of the many requirements the City mandated the 12 parties provide, "A provision to allow shared parking for patrons of all uses in Parcel A, Parcel 13 B."'4A-I and The easement was one way the parties complied with the City's requirement. The "Reciprocal Easement and Operation Agreement is entered into January 11, 1997, to be effective 16 on the date is recorded in the official records of San Mateo County." There is a recital referring 17 to the contemplated conveyance of the parcels and timing of the effectiveness of the easement: 18 "Concurrently herewith, DBP and KPP [Litke] have conveyed Parcel A, as shown on the Map, 19 to DBP {the 'DBP Parcel', and Parcel B, as shown on the Map, to KPP [Litke] {the 'KPP 20 [Litke] Parcel'. o This is important because at the time the easement was executed, the parties 21 did not know when the approval process would be complete. Joint owners of property cannot agree to provide an easement to each other. "A servitude 23 'By its terms, the purchase agreement was "binding upon... and shall inure to the benefit of the parties... and 24 successors." Ex 102, sections 1.3 and 15. 4The easement is Exs. 103 and 104. The differences between the two are the signatures of then partners oF DBP, 25 Bocci, Devincenzi and Pender were affixed in 1997 on 103 and 2000 on 104. Exhibit 104 also contains recording information and the identity of the parcels. 26 'Exhibit 106, section II.A. f. 'The agreement attached to the complaint was signed by Litke in 1997. It was signed by DBP in 2000. The 27 agreement is dated 1997. There are also signature pages for DBP executed in 1997. The attorneys involved in the easement are no longer with us. The records of the City of Daly City have the fully executed easement with an 28 execution date of 1997, by all parties. 'Ex 104," Recitals" page 2. Low Offtees of Stevena piser 2 DBP iNvssTMEN Ts'RIAL BRIET cannot be held by the owner of the servient tenement." (Civ. Code, $ 805.)s The statute "avoid[s] nonsensical easements—where they are without doubt unnecessary because the owner owns the estate." (Taritvala v. Mack (2022) 84 Cal.App.5th 807, 811.) This explains why it was to be "effective" upon recordation tied to the concurrent conveyance of the two parcels. Keying the "effective date" to recording made sense, as it was understood recording would take place through an escrow opened with Fidelity National Title, and coincide with the recording of the grant deeds conveying the parcels subject to the lot split to DBP and Litke. The Agreement contained other recitals, which, under Evidence Code Section 622, "are conclusively presumed to be true as between the parties thereto, or their successors in interest." 10 These recitals are crucial to the assessment of the parties'ights and duties: DBP and KPP [Litkej desire to grant to each other mutual and 12 reciprocal easements over their respective parcels for the purposes 13 of providing common parking, ingress and egress to each 14 others'arcel and utility service, and to set forth their agreement with respect to the maintenance, repair and operation of certain 16 improvements thereon. The conveyances of Lot A to DBP and Lot 17 B to KPP jLitkej are subject to the terms and conditions of this 18 Agreement. (Emphasis added.) 19 On September 25, 2000, a Certificate of Compliance, determining that the property had 20 been divided from a division in compliance with the Subdivision Map Act subject to the Daly 21 City Ordinance was recorded. 9 The subdivision was finalized on October 5, 2000 when the then 22 tenants in common executed deeds conveying separate interests in the parcels. On November 14, 23 2000, Fidelity recorded the grant deed conveying Parcel B to DBP grant deed conveying Parcel 24 A to Litke; and the grant deed conveying Parcel B to DBP. 'ut unbeknownst to DBP—and apparently, Litke—Fidelity failed to record the easement. 26 "The land to which an easement is attached is called the dominant tenement [or estatel; the land upon which a 27 burden or servitude is laid is called the servient tenement [or estate]." (Civ. Code, 11803.) 'See DBP's trial exhibit 107, the Certificate of Compliance. On Exhibit II to that is the "New Legal Descriptions" 28 which identifies King's parcel as "Parcel B." "Exs. 108 and 109. Eeiv Offices of a rises Ssevesi 3 DBP IivvESTIRERTS'RIAL BRIEE Litke and DBP Perform Under the Terms of the Easement. The easement, executed while the property was in joint ownership, was to be effective when recorded (once the conveyance was accomplished). But it was not recorded. King' predecessor and DBP's actions and behavior demonstrate, in the words of Litke, that they "had been operating on it for many years with no issues."" During the twenty two years the easement has been operative, DBP paid $ 135,064 to Litke from 2001 to 2007. DBP paid King $ 657,522 from 2007 to 2022. The payments were required by the easement and Civil Code Section 845. King Purchases Litke's Interest in Parcel, and Becomes the Successorin Interest. In 2007, Litke sold its interest (Parcel B) to King, a Delaware Limited Liability 10 Company controlled by the Ho family The Ho family conducted extensive due diligence, reviewing and signing between "100 12 pages (possibly 200+)" of documents. Included was the easement, which underwent extensive 13 review and analysis resulting in many inquiries with CPA, Sabrina Ho asking detailed questions. 14 She even requested Litke modify the agreement regarding maintenance cost split, timing of 15 reimbursement for common area expenses and inclusion of a "penalty clause" if payments by 16 DBP were not made in a timely fashion.'s. Ho was advised that if she "wanted to redraft the 17 agreement with the owners of the bowling alley after you own the building that is up to you." No 18 member of the Ho family reached out to DBP to discuss the agreement until it brought its now dismissed cross-complaint to enforce it. 20 But, on March 7, 2007, at the demand of Litke as a condition of close of escrow on the 21 sale to King, King acknowledged receiving the unrecorded instrument, that it was "executed by all parties" and "delivered to Fidelity National Title Company and they [Fidelity] failed to record 23 that agreement."'he acknowledgement, signed by Tammy Ho, provided notice to King of the 24 "unrecorded instrument." Jeanne Ho, a Ulcc President at Wells Fargo Bank, who is a real estate 25 loan oflicer, and her sister, Sabrina, a licensed CPA, who holds an MBA from Cal's Haas School of Business, reviewed the easement as did King's legal counsel. 27 "Ex 115, email trom Stella Chu to Sabrina Ho of February 14, 2007. 28 "Ex 114, email from Sabrina Ho to Stella Chu of February 9, 2007. "Ex. 118, Lew Offices of Bierce B. riser 4 DRP INVKSTMKNTS'RIAL BRISK King—again, with actual knowledge of the easement—knew it was bound by its terms: "[T]he covenants and agreements contained in this Agreement shall run with the land and (are) binding and inure to the benefit of the parties hereto, their respective heirs, successors, assigns, representatives, lessees and all other persons acquiring all or any portion of the Parcels, or any improvements thereon, or any interest therein, whether by operation of law or in any manner whatsoever.... all other persons acquiring all or any portion of the Parcels."'4 And when King took over ownership, its actions remained consistent with the easement. King readily accepted the benefits. For over twenty years, DBP has been invoiced and has paid 12 Litke and King over $ 657,522 for common area expenses, including a bill for $ 107,202.38 13 representing DBP's one-half share to repave the shopping center parking lot in 2015. These maintenance payments are required by the Agreement and Civil Code section 845(b) which says: 15 If the easement is owned by more than one person, or is attached to parcels of land under different ownership, the cost of 17 maintaining it in repair shall be shared by each owner of the 18 easement or the owners of the parcels of land, as the case may be, pursuant to the terms of any agreement entered into by the parties 20 for that purpose. In the absence of an agreement, the cost shall be shared proportionately to the use made of the easement by each 22 owner. 23 In a Pleading andin Sworn Discovery Responses, King Admits the Validity of the 24 Easement. 25 King went a step further in its efforts to invoke the benefit of the easement. On August 1, 2016, it filed a cross-complaint, as "a successor party to a written agreement with DBP regarding their respective rights pertaining to the use of the Adjacent Common Area." (Cross-Complaint, 28 "Ex. 104, section 12 "Transferability; Covenants Running With the Land." Lant Offices of Steven 8. riser 5 DBP INTKSTMKNTK'RIAL BRIKK 1[26.)" The cross-complaint alleged that "an actual controversy has arisen and now exist between King and DBP concerning their respective rights and duties under the aspects of the written agreement pertaining to DBP's use of parking spaces on King's Property ..." —the 2L)'BP very contract it now claims to be ineffective. (Cross-complaint, $ did not dispute the issue. On September 2, 2016, DBP filed an answer, alleging, "Cross-defendant admits that DBP and King Plaza Center entered into a written agreement, and that King Plaza Center is a successor party to the written agreement which concerns the respective rights pertaining to the use of the Adjacent Common Area, as alleged and referenced in paragraphs 8, 21, 26 of the cross-complaint." (Answer, p. 2;4-7.) Consequently, "[t]he factual 10 allegation[s] [set forth in paragraphs 8, 21 and 26] are removed from the issues in the litigation because the parties agree as to its truth." (Barsegian v. Kessler dv Kessler (2013) 215 Cal.App.4th 446, 452.) "The admission of fact in a pleading is a 'judicial admission.'" (Valerio v. Andrew 14 Yottngquist Construction (2002) 103 Cal.App.4th 1264, 1271 .) A judicial admission in a 15 pleading is not merely evidence of a fact; it is a conclusive concession of the truth of the matter. 16 (Addy v. Bliss d Glennort (1996) 44 Cal.App.4th 205, 218.) "Well pleaded allegations in the 17 complaint are binding on the plaintiff at trial." (4 Witkin, Cal. Procedure (5th ed. 2008) 18 Pleading, 455, p. I't 587.) "[T]he trial court may not ignore a. judicial admission in a pleading, but 19 must conclusively deem it true as against the pleader." (Titurman v. Bayshore Transit 20 Management, Inc. (2012) 203 Cal.App.4th 1112, 1155.) 21 But the pleading wasn't the end of it. King recognized, under penalty of perjury, the 22 binding nature of the easement: 23 Concurrently with the process of seeking approval for the 24 Consolidation and Redevelopment, DBP and KPP [Litke] entered into a written agreement regarding various topics, including parking and maintenance of certain portions of the newly 27 "On February 19, 2020, King dismissed its cross-complaint without prejudice. 28 IIKing's cross-complaint also sought damages for breach of the Agreement, representing "one-half of the costs incurred in maintaining and repairing the Adjacent Common Area." (Cross-Complaint, $ 30.) LnIv Offices of StevenB. River e DBP ravssTMKNTs'RIAL BRIER consolidated Adjacent Parcels: the "DBP Common Area" which comprises portions of the land located on the DBP Property, owned by DBP; and the "KPP [Litke] Common Area," which comprises portions of land located on the King Property, then owned by KPP [Litke], and now owned by King.'ing also contended that DBP breached the Agreement by "overburdening the easement,'* "fail[ing] to pay 50% of the maintenance and repair costs for the common area as required by the contract," and by "fil[ing] this lawsuit without first attempting mediation or arbitration" "contrary to the requirements of the written easement agreement." 10 In these same sworn responses, King stated that the Agreement was unenforceable, but only "in part." "By filing suit and propounding discovery without attempting mediation in good 12 faith and without pursuing arbitration, Plaintiff has waived its right to enforce those terms of the 13 written easement agreement."'ing has not claimed that the Agreement was unenforceable in 14 any other respect. 15 King Notv Ciaims the Agreement Never Came Into Being. 16 Nearly twenty years after the execution of the Agreement, and nearly a decade after it 17 purchased the shopping center, and collecting over $ 500,000 for common area expenses, and 18 after suing to enforce the Agreement, King now says the Agreement never came into existence. King need not honor the Agreement, because it was not recorded. 20 Is it equitable for the court permit a party to accept the benefits of an agreement from 21 another party, require the other party to comply with the terms of an agreement, and sue to 22 enforce the terms of the agreement, and then, years later, change its mind to say no agreement ever existed? ICing Is Estopped and Has Waived Any Bight to Chaiienge the Agreement. 25 King is estopped from and has waived any right to claim the lack of the recording gives it 26 the right to back out of the Agreement. 27 28 "King Answer to Form Interrogatory 15. L "DBP does not dispute this. Lea Offices of Steven 8. riser 7 DBP tnvssTAIENTs'RIAL BRIEF "A party to a contract may by conduct or representation waive the performance of a condition thereof or be held estopped by such conduct or representations to deny that he has waived such performance." (Pattno v. Russo (1952) 82 Cal.App.2d 408, 412.) The Evidence Code addresses this very situation, labelling it a conclusive presumption. Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it. (Evid. Code, tj623.) 10 A condition is waived when a promisor by his words or conduct justifies the promisee in believing that a conditional promise will be performed despite the failure to perform the condition, and the promisee relies upon the promisor's manifestations to his substantial 13 detriment." (Sosin v. Richardson (1964) 210 Cal.App.2d 258, 264.) 14 King knew about the easement and understood DBP has the right to use the "KPP 15 Common Area" under the easement. King accepted the payments for common area charges, with 16 full knowledge that DBP was paying them in satisfaction of its obligations under the easement, 17 knowing the easement had not been recorded. King met with and exchanged emails about 18 parking at the Center—numerous discussions about deliveries, employee parking, parking 19 enforcement—but never once suggested to DBP that it did not enjoy the benefits of a binding 20 easement. Behind the scenes, the Hos'rue intentions were revealed. In an April 14, 2012 email, 22 discussing a meeting with Steve DeVincenzi, a partner in DBP, and the then general manager of 23 Classic Bowl, Edmond Ho wrote his sisters: 24 We talked about the verbal agreement between Classic and the 25 previous owners of King Plaza to share the parking lot. It was a verbal agreement between Classic and the previous owners of 27 King Plaza to share the parking lot, and to split the costs to 28 maintain it. However legally we own the parking lot entirely and it LSIv offices of Steven 8, Piece 8 DDP INYKRTMKNTs'RIAL BRIKS was made clear in the meeting that we could screw them over if we wanted to, but Mom said we have no intention of ever doing such a mean thing. (I love how Mom brings it up just to "reassure" then we won') David kept quiet in this part because he knows that Mom and him have both done research in the area that Classic, on paper, anywhere in the City records, has no parking lot. And if we ever wanted to not allow them to use the parking, we technically 13 14 15 17 18 20 '2 could...although it would be very messy. $ 400,000 for common area expenses. estoppel. Steve kept pushing the point that we have a verbal agreement, but you can tell that he knows that legally, we have him by the balls. King knew what DBP did not: that the easement had not been recorded. King then kept it a secret, never intimating that it would claim the easement was unenforceable. King wanted to continue to retain the benefits, without giving any warning that it did intend to abide by the easement. During the nine years following Edmond Ho's email, King billed and DBP paid over King's conduct constitutes both a waiver and estoppel. "The term 'waiver's sometimes used indiscriminately to refer to the doctrine of waiver, and the distinct but similar doctrine of 'Waiver refers to the act, or the consequences of the act, of one side. Waiver is the intentional relinquishment of a known right after full knowledge of the facts and depends upon party.'hus, the intention of one party only. Waiver does not require any act or conduct by the other 21 '[tjhe pivotal issue in a claim of waiver is the intention of the party who allegedly relinquished the known legal right.'[Ejstoppel is applicable where the conduct of one side has induced the other to take such a position that it would be injured if the first should be permitted 24 to repudiate its acts." ' (Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006) 25 144 Cal.App.4th 1 175, 1 190.)(citations omitted.) "This form of estoppel is, for practical purposes, indistinguishable from the doctrine of implied waiver through conduct." (Id.) "The waiver may be either express, based on the words 28 NEx 122, email April 14, 20 12, from Edmond Ho to his sisters Sabrina and Jeanne. Lew Ofiires of Steven B. riser 9 DBP INYEsTMENTs'RIAL BRIEE 1 of the waiving party, or implied, based on conduct indicating an intent to relinquish the right." 2 (II aller v. Truck lns. Exchange, Inc. (1995) 11 Cal.4th I, 31.) "Implied waiver, especially where 3 it is based on conduct manifestly inconsistent with the intention to enforce a known right, may 4 be determined as a matter of law where the underlying facts are undisputed," (Oakland Raiders 5 v. Oakland-Alameda County Coliseum, Inc. supra, 144 Cal.App.4th at 1191.) 6 Evidence of King's intent is not necessary. "An estoppel in pais may be found even 7 though the person estopped did not actually intend to defraud or mislead." (Lovett v. Point Lorna 8 Development Corp. (1968) 266 Cal.App.2d 70, 76.) In any event, "[w]hether denominated 9 "estoppel" or 'implied waiver as a matter of law,'he operative principle is exactly the same— 10 where a party's conduct is so inconsistent with the intent to enforce a legal right, the intention to 11 give up that right will bepresumed, notwithstanding evidence that the party did not subjectively 12 "intend" to relinquish it." (Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006) 13 144 Cal.App.4th 1175, 1194)(emphasis added.) 14 King Now Claims the Agreement Was Ambiguous. 15 King has claimed that the easement is indefinite, suggesting that the boundaries of the 16 easement are not described in the Reciprocal Easement and Operating Agreement. In responses 17 to interrogatories, King contended "the identity of the parcel at issue" was ambiguous. But there 18 is no ambiguity about the scope of the parking easement. The Agreement describes the easement for parking: 20 (c) Easement for Parkinu. A non-exclusive easement and right to 21 use the parking spaces located within the KPP [Litke] Common 22 Area for the parking... (REOA, t]3(c).) 24 The Agreement defines the Litke, now King, Common Area as: 25 (b) The term "KPP [Litke] Common Area" shall mean all public 26 and common facilities erected on the KPP Parcel intended for 27 common use, including but not limited to, entrances, exits, 28 driveways, access roads, parking areas, sidewalks drives, Low Offices of Steven B. Pttet 10 DBP IN VKSTMKNTS'RIAL SRlKF directional signs, lighting facilities (excluding lighting attached to buildings constructed to the KPP [Litke] Parcel other than lighting attached to the dental building located on the KPP [Litke] Parcel specifically intended for illumination of the upper parking lot... (REOA, tjl(b).) The Agreement also identifies the Assessor's Parcel Numbers on the face of the 7 instrument: APN: 091-171-150; 901-175. 180; 091-175-190 —the satne parcels identified in the 8 grant deeds. Even if some ambiguity or uncertainty about the scope of an easement grant existed, the 10 surrounding circumstances, including the physical conditions and character of the servient 11 tenement and the requirements of the grantee, play a significant role in the determination of the 12 controlling intent. (Scruby v. Vintage Grapevine, lnc. (1995) 37 Cal.App.4th 697, 702-705.) The 13 surrounding circumstances leave no doubt that the easement can be reasonably construed as 14 granting DBP the right to use King Plaza lot for parking. 15 King Cannot Be Permitted to 'IBlous Hot and Cold, " 16 King's conduct, in its dealings with DBP and the positions it has asserted in this six plus 17 year legal saga, is clear: It adopts a position when it suits it, only to abandon it when it works to 18 its disadvantage. For the last fifteen years, King insisted that DBP abide by its contractual 19 obligations — even suing to enforce those rights. But when faced with the burden of that very 20 contract, King is quick to deny those obligations. "It seems patently wrong to allow a person to abuse the judicial process by first 22 [advocating] one position, and later, if it becomes beneficial, to assert the opposite." (Jackson v. 23 County of Los Angeles (1997) 60 Cal.App.4th 171, 181.) The law has created doctrines to 24 prevent a party from "blowing hot and cold in the same breath." 'hey are known as waiver, 25 estoppel, and laches. 26 The issue to be adjudicated is narrow: DBP seeks "a declaration from this court that the "National City v. California tVater & Tel. Co. (1962) 204 Cal.App.2d 540, 551. Letv Offices ef riser Steverr B. ll DBP INVESTMENTS'RIAL BRIEF Reciprocal Easement and Operation Agreement is effective, even though is not recorded." 'AW OFFICES OF STEVEN B. PISER A Professional Corporation LAW OFFICES OF JOHN L. FITZGERALD DATED: January 27, 2023 By: IIÃ . IBKALD Attorne DBP Investments, a Calif 'a General Partnership 10 13 14 16 17 18 20 21 22 23 24 26 27 28 "Complaint for Declaratory Relief, p.6;3-5. Lmv Offsces of Sievesa Piece 12 DBP tNvasTMKNTs'RIAL BRIKS POS-050/EFS-050 ATTORNEYORPARTYWITHCUTATTORNEY'TATE BAR NO: 126,613 FOIT COURT USE ONLY NAME:John L.Fitzgerald FIRM NAME: Law Oilices of John L. Fitzgerald BTREETADDREss: 177 Bovet Road, Suite 600 cia vt San Mateo 8TATE:CA 94402 ZIP coDE: TELEPHQNE Noc 650-638-2386 FAX NO. t john@jlfitzgeraldlaw.corn EtuAIL ADDREBB: ATTORNEY FOR tnemei: Plaintiff DBP InVeStmentS SOPERIOR COURT OF CALIFORNIA, COUNTY OF San Francisco sTREEr AooREss: 400 County Center MAILING ADDRESS: cooE Redwood City, CA 94063 DITY AND ZIP BRANCH NAME; CASE NUMBER: PLAINTIFF/PETITIDNERIDRp fnvnefnnnf CIV538897 DEFENDANT/RESPONDENT: xlnn plnvn CAnfaf JUDICIAL OFFICER: II r Pf NI Honorable Robert D. Foilss DEPAR1MEN'r PROOF OF ELECTRONIC SERVICE 21 1. Iamatlsast18yearsold. a. My residence or business address is (spec/fy): Law Offices of John L. Fitzgerald 1?7 Bovet Road San Mateo, CA 94402 b. My electronic service address is (specify)/ john@jlfitzgeraldiaw.corn 2 I electronically served the following documents (exact tides)/ DBP Investments'rial Brief ~ The documents served are listed in an attachment. (Form POS-050(D)?EFS-050(D) may be used for this purpose.) 3. I electronically served the documents listed in 2 as follows: a. Name of perso'n served: Steven McLellan On behalf of (nsme or names of part/es represented, if person served is en attorney)/ Defendant King Plaza Center, LLC b. Electronic service address of personserved: sdm@gedlaw.corn c. On (date)/ Januarv 27, 2023 ~x The documents listed in item 2 were served electronically on the persons and in the manner described in an attachment. (Form POS-050(P)/EFS050(P) may be used for Ih/s purpose.) Date: Januarv 27.2023 Ideclare under penalty of perjury under the laws of the State of California that the for~pi g is t d correct. JOHN L. FITZGERALD /TYPE OR PRINT NAME OF DECLARANT) Page 1 of I Fem AFFroved for Optional Uae PROOF OF ELECTRONIC SERVICE Cal. Roice of Court, rule 2.251 Judlctal Council of Cagmmla emv coune ca gov PD$ 050/EFs-050 IRev. February I, 2012/(Proof of Service/Electronic Filing and Service) POS%50(P}/EFS4)50(P} SHORT TITLE: CASE NUMBER: DBP Investments, et al CIV538897 ! ATTACHMENT TO PROOF OF ELECTRONIC SERVICE (PERSONS SERVED) (This sltschmsnl is for uss with form POS-050/EFS-050.) NAMES, ADDRESSES, AND OTHER APPLICABLE INFORMATION ABOUT PERSONS SERVED: Name of Person Served Electronic Service Address Date of Electronic Service (lf the person ssnrsd is sn attorney, the party or parties represented should also be slated.) Date: January 27, 2023 Janet Fogarty (King Plaza) j fogartylawfirm@yahoo.corn Date: Januarv 27, 2023 Steven B. Piser (DBP) esperanza@stevenpiser.corn& Date: January 27, 2023 James Barret (Quach) jb@ja mes berrettlaw.corn Date: Date: Date: Date: Date: Date: Date: Date: Date: Eorm APProvsd for CPuorml usa ATTACHMENT TO PROOF OF ELECTRONIC SERVICE (PERSONS SERVED) Judicial Council of Capfomla Page 2 Cl 2 PCE-000(P)lepeaf50(P) (Proof of Service/Electronic Filing and Service) Fsdrusrf 1, 2017) [Rsv.