Preview
Exhibit 5
(Parties’ meet and confer correspondence from March 16 to March 22 regarding
Defendants’ Proposed Motion to Strike)3/23/23, 5:04 PM Gmail - M&C in Arntsen & John and Jacky's New Matter
ivy Gmail Ryan
M&C in Arntsen & John and Jacky's New Matter
Ryan Thu, Mar 16, 2023 at 4:33 PM
To: rdunn@eimerstahl.com, "Vierra, Collin" , "Zimmerman, Brian W."
, "Chong, Jessica" , "Reisch, Nick"
, Ernesto Aldover
Greetings Messrs Dunn and Vierra:
Now that Judge Foiles has approved Defendant Bragg and SVRV's request to set aside Plaintiffs' default and
extend defendants’ time to respond, | send this email pursuant to CCP 435.5 to meet and confer with Plaintiffs
before the filing of any motion to strike.
First, Plaintiffs' First Amended Complaint ("1AC") and John and Jacky's complaint ("Complaint") make a series of
allegations about the Moore Road operating agreements. | am using Exhibit C & D to Ms. Dunn's declaration filed
in the BK Court (which are identified as the February 2018 "Effective Operating Agreements" in the 1AC and the
Complaint), which | have attached to this email.
The 1AC and Complaint make a series of allegations purportedly based on what the Effective Operating
Agreements say. For example, at Para. 47 of the Complaint, John and Jacky allege "The Effective Operating
Agreements provided, inter alia, that 'unanimous approval of the Members in a consent in writing’ was required
for 'the admission of a new Member or a change in any Member's Membership Interest, Ownership Interest,
Percentage Interest, or Voting Interest,’ and ‘[t]he amendment of th[ese] Agreement[s]." (See also, Para. 54 of
1AC.). However, the Effective Operating Agreements attached as Exhibits C & D to Ms. Dunn's declaration do not
contain any such language as Plaintiffs have quoted in their pleadings that | can find. If | have missed it, can you
point me to it? In fact, what Plaintiffs' quote runs contrary to EOA's language at Article III, Para. 2 (p. 12 of Exhibit
C) that states that Passive Members (i.e., Plaintiffs - see Para. 55 of 1AC: "Bob and the Arntsen Partnership, as
well as any later-investing Plaintiffs, were Passive Members, entitled to the first distributions from the Project.
SVRV was the Active Member") "shall have no voting rights" and "shall not be involved in any management
decisions . . ." (emphasis added).
Consistent with the EOA's position on Passive Members' lack of any voting power in the Moore Road LLCs,
the EOA gives only the "Active Member" the right to admit additional members. The Complaints admit SVRV was
the Active Member. As such, Bragg as manager of the Moore Road LLCs, was empowered pursuant to Article III,
Para. 3 (p. 12 of Exhibit C) to admit Paramont as a member of the Moore Road LLCs with no input from the
Plaintiffs at all: "3. Admission of Additional Members. Additional Members may be admitted with the unanimous
approval of all Active Members. Additional Members will participate in the, 'Net Profits,' 'Net Losses’ (as such
terms are defined in Section V1.1), and distributions of the Company on such terms as are determined by the
Members. Exhibit A shall be amended upon the admission of an additional Member to set forth such Member's
name and capital contribution" (emphasis added). | could not find this quotation to "Active Members" having the
authority to admit additional members anywhere in Plaintiffs’ papers.
Second, the Arntsen Plaintiffs, John, and Jacky make a number of allegations about Mr. Bragg's $75,000 broker
fee (see, 1AC at paragraphs 12, 119, 124, 153, and 263; see a/so, Complaint at paragraphs 13, 72, 77, and 161).
However, Article IV, Para. 7, last sentence explicitly states that Mr. Bragg will be authorized to list and sell the
Moore Road properties: “It is specifically agreed that David Bragg will be the listing agent for the Property and
any sale thereof, pursuant to a standard listing agreement." Exhibit C to Dunn Declaration at p. 17 of the Exhibit.
Finally, with respect to John and Jacky's claims for violation of the EOA, those claims are subject to an arbitration
clause (see, Article XII, Para. 4, at p. 27 of the Exhibit).
The EOA does not appear to say what Plaintiffs allege it says in the 1AC and the Complaint, making the related
causes of action and allegations based on those assertions subject to a motion to strike. Obviously, | would like to
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avoid burdening the Court with more motion work related to Plaintiffs’ pleadings, so let me know what you think is
the most efficient way to proceed on these issues.
Best regards,
Ryan
2 attachments
fF Order Granting Extension of Time to Answer.pdf
168K
Arnsten v. Bragg - Exhibits - doc 34.pdf
6536K
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ety Gmail Ryan
M&C in Arntsen & John and Jacky's New Matter
Ryan Sun, Mar 19, 2023 at 7:53 PM
To: rdunn@eimerstahl.com, "Vierra, Collin" , "Zimmerman, Brian W."
, "Chong, Jessica" , "Reisch, Nick"
, Ernesto Aldover
Greetings Messrs. Dunn and Vierra:
| hate to pester you over the weekend, but there isn’t a lot of time to meet and confer on the issues identified
below unless you agree to an extension of time.
| am available to discuss at your convenience,
Thank you,
Ryan
314-749-2284
Sent from my iPhone
On Mar 16, 2023, at 3:33 PM, Ryan wrote:
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pm; Gmail Ryan
Vierra, Collin Mon, Mar 20, 2023 at 11:20 AM
To: Ryan , "Zimmerman, Brian W." , "Chong, Jessica"
, "Reisch, Nick" , Ernesto Aldover
Ryan,
Have you received an order from the Court that is not on the docket? The screenshot you provided shows that
your proposed order was “returned unsigned,” i.e., not entered. Please let me know if you've received some other
indication that the order was granted.
As for John’s and Jacky’s complaint, you are correct that paragraph 47 inadvertently interposes language from
the October 2018 operating agreement signed by John into the February 2018 Effective Operating Agreements. If
need be, we could amend the complaint to correct that allegation, though that doesn’t seem necessary at this
point as that correction would not diminish the force of Plaintiffs’ claims. The February 2018 Effective Operating
Agreement required unanimous written consent to be amended, and as you noted, new members would
participate in the net profits, net losses, and distributions only “on such terms as are determined by the
Members.” Indeed, that strengthens Plaintiffs’ argument that the Paramont Defendants were not entitled to a
“preferred” position vis-a-vis the other investors in the Moore Road Project, but instead had an equal interest in
the Project. John and Jacky will nonetheless stipulate to correcting that language in their complaint.
Next, it does not appear that you contend that any of John’s and Jacky’s allegations about Bragg’s brokerage fee
are inaccurate. Bragg is welcome to raise the contractual provision you cited as a defense, if he would like, but
that does not indicate any inaccuracy in John’s and Jacky’s complaint, and thus there is no subject here for a
motion to strike.
Finally, as Bragg and SVRV are aware, neither John nor Jacky ever signed—or was even presented with—the
EOAs. Therefore, neither of them consented to it, nor can they be bound by the arbitration provision in those
agreements.
| am happy to meet and confer this week to discuss these matters further if that would be helpful.
Collin Vierra Ej mersta h lu
Eimer Stahl LLP www.eimerstahl.com
99 Almaden Blvd, Suite 600
San Jose, CA 95113-1605
https://mall.google.com/mail/u/0/?ik=2b2115844c&view=pt&search=all&permmsgid=msg-f:1760904408762290974&simpl=msg-f:1760904408762290974 1/23/23/23, 5:04 PM Gmail - M&C in Arntsen & John and Jacky's New Matter
Phone: 408-889-1668
Mobile: 831-917-8266
cvierra@EimerStahl.com
NOTICE: This e-mail message and any attachments transmitted with it may contain legally privileged and
confidential information. It is not intended for transmission to, or receipt by, any unauthorized persons. If you
have received this message in error, please (i) do not read it, (ii) reply to the sender that you received the
message in error, and (iii) erase or destroy the message and all attachments. Legal advice contained in the
preceding message is solely for the benefit of the Eimer Stahl LLP client(s) represented by the Firm in the
particular matter that is the subject of this message, and may not be relied upon by any other party.
From: Ryan
Sent: Thursday, March 16, 2023 2:34 PM
To: Dunn, Robert ; Vierra, Collin ; Zimmerman, Brian W.
; Chong, Jessica ; Reisch, Nick
; Ernesto Aldover
Subject: M&C in Arntsen & John and Jacky's New Matter
[Quoted text hidden}
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4 Gmail Ryan
M&C in Arntsen & John and Jacky's New Matter
Ryan Tue, Mar 21, 2023 at 5:16 PM
To: "Vierra, Collin" , rdunn@eimerstahl.com
Ce: "Zimmerman, Brian W." , "Chong, Jessica” , "Reisch, Nick" , Ernesto
Aldover
Greetings,
have not received an order - most likely because it was going to be returned unsigned - but per your request for an indication that the order was granted refer to the
docket entry at 3.9.23:
"03/09/2023 Proposed Order Received
View Document | Proposed Order Received RETURNED UNSIGNED; GRANTING DEFENDANTS DAVID BRAGG AND SILICON VALLEY
REAL V
Comment
RETURNED UNSIGNED; GRANTING DEFENDANTS DAVID BRAGG AND SILICON VALLEY REAL VENTURES REQUEST FOR
AN EXTENSION OF TIME TO RESPOND OR ANSWER" (emphasis added).
Second, with regard to “John’s and Jacky's complaint, you are correct that paragraph 47 inadvertently interposes language from the October 2018 operating agreement
signed by John into the February 2018 Effective Operating Agreements," this side-steps my question a bit. Bob attached what he contends is the EOA (dated Feb. 2018)
to his affidavit filed in the BK action as Exhibits C & D. John did the same in his affidavit in the BK action as Exhibit A (dated June 2018 and mislabeled in the Index of
Exhibits), Neither of those EOAs contain the language alleged in the complaints, or as alleged by Bob in his affidavit filed in the BK action, Specifically, | cannot find where
the EOAs (and the Feb. 2018 and June 2018 EOAs are substantively identical) say “unanimous approval of the Members in a consent in writing” was required for "the
admission of a new Member or a change in any Member's Membership Interest, Ownership Interest, Percentage Interest, or Voting Interest," and the same for any
amendment to the EOA (see, e.g., Amtsen Decl., P. 5:7-11; Para, 54 of FAC; and Para. 7 and 47 of Complaint). In short, the EOAs Plaintiffs are relying on do not say what
they are alleging. Is it possible Plaintiffs quoted from a different operating agreement?
Again, If |am missing the language out of the EOAs contained in Plaintiffs pleadings and affidavits, please Identify It for me (I've attached the exhibits to Bob and John's
BK declarations for your convenience - doc 28 are Bob's exhibits; doc 44 are John's exhibits).
The EOAs Plaintiffs swore to and have sued on gave SVRV as the Active Member the sole discretion to add New Members. And it did not require “unanimous written
consent" from all members to effect an amendment. All the EOAs state in that regard is that “All amendments to this Agreement will be in writing and signed by all of the
Members." In writing, and signed - approval is not mentioned.
Third, Defendants’ do contend that Plaintiffs (Artsens, John, and Jacky's) allegations about Bragg’s brokerage fee are subject to strike because they are irrelevant, false,
and improper (see CCP 436). Bragg was explicitly authorized by the EOAs to serve as the listing agent for the sale of the Moore Road Projects and that was disclosed in
each of the EOAs, It's difficult to determine how Plaintiffs were harmed by this when it was explicitly disclosed in the documents they verify (repeatedly) governed the
Moore Road Project, The Court can take judicial notice of the EOAs filed in the BK matter and strike the allegations. | request that you consider removing all allegations
slated to Bragg's broker fee gained from sale of the Moore Road Properties as it was authorized and agreed to under the EOAs your olients are suing on.
In addition, and | did not raise this in my last meet and confer email, the allegations In 1AC at Para. 162-164 are irrelevant and subject to strike, i.e. "Bragg Refuses to
Acknowledge this Litigation." | am failing to see how post-litigation actions have any bearing on the issues between the parties.
Finally, you claim, that “as Bragg and SVRV are aware, nelther John nor Jacky ever signed—or was even presented with—the EOAs. Therefore, neither of them
consented to it, nor can they be bound by the arbitration provision in those agreements." First, you admit below John signed the EOA: "As for John’s and Jacky's
complaint, you are correct that paragraph 47 inadvertently interposes language from the October 2018 operating agreement signed by John into the February 2018
Effective Operating Agreements." Second, Jacky and John have sued for breach of the EOA which requires them to allege itis a valid agreement capable of being
enforced (see Complaint, 5th and 6th COA). If itis Jacky and John's position that they will not be bound by thelr agreement to arbitrate disputes of the EOA, please so
state explicitly so Defendants can prepare a motion to compel arbitration with respect to their claims.
Given that the time is short to get this information before the Court, please let me know what you believe the most efficient way to proceed is.
Best regards,
Ryan
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2 attachments,
https://mail.google.com/mall/u/0/71k=2b2115844c&view=pt&search=all&permmsgid=msg-a:r-9149383799696914329&simpl=msg-a:r-91493837996969... 1/23/23/23, 5:05 PM Gmail - M&C in Arntsen & John and Jacky's New Matter
4B) Amsten v, Bragg - Exhibits -doe 44.paf
1897K
Ry Ammsten v. Bragg - Exhibits Affidavit - doc 28.paf
6601K
https://mail.google.com/mail/u/0/7ik=2b2115844c&view=pt&search=all&permmsgid=msg.
r-9149383799696914329&simpl=msg-a:r-91493837996969... 2/23/23/23, 5:05 PM Gmail - M&C in Arntsen & John and Jacky's New Matter
ih Gmail Ryan
Ryan Wed, Mar 22, 2023 at 5:09 PM
To: "Vierra, Collin" , rdunn@eimerstahl.com
Ce: "Zimmerman, Brian W." , "Chong, Jessica" ,
“Reisch, Nick" , Ernesto Aldover
Greetings Messrs. Dunn & Vierra:
| have not received any response about the language in the EOAs regarding unanimous consent from Passive
Members to admit and amend those documents yet, but have had the opportunity to go through Plaintiffs’ 1AC in
detail. In an effort to further meet and confer with Plaintiffs, these are the allegations Defendants Bragg and
SVRV will move to strike based on CCP sections 435-437. Please let me know whether Plaintiffs will agree to
amend their pleadings to remove the following allegations. If not, then these will go into a motion to strike by
Friday's filing deadline.
Thanks!
Best regards,
Ryan
1. FAC 22, last clause: “... in carrying out the fraud and other misconduct complained of herein”
(improper matter inserted in a description of defendant).
2. FAC 24, last clause: “..., who routinely siphoned money from SVRV’s accounts to pay
themselves and their families for unauthorized expenses that were never properly accounted for” (improper
matter inserted in a description of defendant).
3. FAC 9/54: “... the Effective Operating Agreements required ‘unanimous approval of the Members
in a consent in writing’ for:
‘the admission of a new Member or a change in any Member’s Membership Interest,
Ownership Interest, Percentage Interest, or Voting Interest;
‘[alny other act outside the ordinary course of the Company’s activities’ and
‘[tlhe amendment of th[ese] Agreement{s]”
(false assertion — the language quoted and relied upon by Plaintiffs is not found in the Effective Operating
Agreement; see, Request for Judicial Notice, Exhibit 1, Article Ill, [2 at p. 17 of Exhibit C to Amsten’s Bankruptcy
Declaration: “Passive Members shall not be involved in any management decisions affecting the Company or
Property, and shall have no voting rights, but may provide input to the Active Members from time to time about
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any issues relating to the Project;” see also, id at 3: “Additional Members may be admitted with the unanimous
approval of all Active Members")
4. FAC 4/70, 71, 72, and 73, in their entirety as irrelevant to any cause of action asserted by
Plaintiffs.
5. FAC 480: “Plaintiffs never would have consented to such wholesale amendments to the
Effective Operating Agreements ...” (irrelevant; the Effective Operating Agreement did not authorize Passive
Members to do so and any amendment under its terms only had to be in writing and signed by members; consent
was not needed from Passive Members. See, RJN, Exh. 1, Art. Ill, ] 2, at p. 17 of the exhibit; see also, id. at Art.
XIl, 77, at p. 34 of the exhibit: “Amendments. All amendments to this Agreement will be in writing and signed by
all of the Members”).
6. FAC 483, entire paragraph (false and improper allegation; the Effective Operating Agreement’s
terms explicitly authorized SVRV as the sole Active Member to add Paramont as a Member to the Moore Road
LLCs; see, RUN, Exh. 1, Art. Ill, 93, at p. 17 of the exhibit).
7. FAC 91101, entire paragraph (Crevelt lawsuit and its resolution is irrelevant to any cause of action
asserted by Plaintiffs).
8. FAC 91102, entire paragraph (irrelevant to any cause of action asserted by Plaintiffs).
9. FAC 4117: “Bragg did not disclose that he was service as Ms. Marchbank’s co-broker, which
entitled him to 50% of the seller’s commission” (false allegation and irrelevant — the Effective Operating
Agreement gave Bragg the exclusive right to be the listing/selling agent for the Moore Road Properties; see, RUN,
Exh. 1, Art. IV, 7, at p. 23 of the exhibit (last sentence): “It is specifically agreed that David Bragg will be the
listing agent for the Property and any sale thereof, pursuant to a standard listing agreement”).
10. FAC 9124, last clause: “[T]he only reason for making Bragg a co-broker was to enable him receive
(sic) additional remuneration in the form of a $75,000 broker's fee” (false allegation and irrelevant — the Effective
Operating Agreement gave Bragg the exclusive right to be the listing/selling agent for the Moore Road Properties;
see, RJN, Exh. 1, Art. IV, 7, at p. 23 of the exhibit (last sentence): “It is specifically agreed that David Bragg will
be the listing agent for the Property and any sale thereof, pursuant to a standard listing agreement”).
11. FAC 138, second sentence: “As of the date of sale for 387 Moore Road, its fair market value was
estimated at $9,137,038" (irrelevant to any cause of action asserted by Plaintiffs; and improper matter using a
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website's estimate of value instead of an appraisal on the property).
12. FAC 91138, third sentence: “As of the date of sale for 385 Moore Road, its fair market value was
estimated at $7,509,490 (irrelevant to any cause of action asserted by Plaintiffs; and improper matter using a
website's estimate of value instead of an appraisal on the property).
13. FAC 9141, 142, and 143, entire paragraphs (improper and irrelevant allegations to any cause of
action asserted by Plaintiffs).
14. FAC 91153, last sentence: “... yet made a $75,000 broker's fee” (improper matter asserted as the
broker’s fee was explicitly authorized by the Effective Operating Agreement; RUN, Exh. 1, Art. IV, 7, at p. 23 of
the exhibit (last sentence): “It is specifically agreed that David Bragg will be the listing agent for the Property and
any sale thereof, pursuant to a standard listing agreement").
15. FAC 9162, 163, and 164, entire paragraphs (improper matter and irrelevant allegations to any
cause of action asserted by Plaintiffs as post-litigation actions have no bearing on Plaintiffs’ claims).
Plaintiffs punitive damage allegations:
16. FAC 9174: “... Bragg’s, [and] SVRV’s ,,. conduct was willful, outrageous, malicious, oppressive,
and fraudulent. In addition to compensatory damages, punitive damages are necessary to punish ... Bragg [and]
SVRV ... for this conduct and to discourage similar conduct in the future.”
17. FAC 9182: “... Bragg’s, [and] SVRV’s conduct was willful, outrageous, malicious, oppressive, and
fraudulent. In addition to compensatory damages, punitive damages are necessary to punish ... Bragg [and]
SVRV ... for this conduct and to discourage similar conduct in the future.”
18. FAC 4193: “... Bragg’s, [and] SVRV’s ... conduct was willful, outrageous, malicious,
oppressive, and fraudulent. In addition to compensatory damages, punitive damages are necessary to punish ...
Bragg [and] SVRV ... for this conduct and to discourage similar conduct in the future.”
19. FAC (200: “... Bragg’s, [and] SVRV's conduct was willful, outrageous, malicious, oppressive,
and fraudulent. In addition to compensatory damages, punitive damages are necessary to punish .,. Bragg [and]
SVRV ... for this conduct and to discourage similar conduct in the future.”
20. FAC 7[209, entire paragraph.
21. FAC 220: “... Bragg's, [and] SVRV’s ... conduct was willful, outrageous, malicious,
oppressive, and fraudulent. In addition to compensatory damages, punitive damages are necessary to punish
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Defendants for this conduct and to discourage similar conduct in the future.”
22.
23.
24,
25.
26.
27.
28.
FAC 4230, entire paragraph.
FAC 1236, entire paragraph.
FAC 71245, entire paragraph.
FAC [252, entire paragraph.
FAC 7259, entire paragraph.
FAC 1265, entire paragraph.
Request for relief, paragraph C: “Punitive damages.”
1]
Plaintiffs allege SVRV was the sole Active Member and admit they were Passive Members. See, FAC [55 at
18:6-8: “Bob and the Arntsen Partnership . .. were Passive Members ... . SVRV was the Active Member”).
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ih; Gmail Ryan
Vierra, Collin Wed, Mar 22, 2023 at 5:31 PM
To: Ryan
Ce: "Zimmerman, Brian W." , "Chong, Jessica" ,
"Reisch, Nick" , Ermesto Aldover
Ryan,
The Amtsen Plaintiffs will not be amending their complaint.
As for John’s and Jacky’s complaint, I’ve clarified that the contractual language was transposed and we are
happy to stipulate to any clarification. | will also speak with my clients about the potential for arbitration, since the
operating agreements they were shown (and which were incorporated into the subscription agreements they
signed) both have arbitration provisions. | note that the arbitration clause in the operating agreement sent to John
indicates that arbitration must be in San Mateo, while the one in the operating agreement shown to Jacky
indicates that arbitration must be in San Francisco. Will Bragg and SVRV agree to arbitrate John’s and Jacky’s
claims jointly in front of a single arbitrator, either in San Mateo or San Francisco? That would likely save costs for
both sides.
Collin Vierra EimerStahl.
408-889-1668
www.eimerstahl.com
NOTICE: This e-mail message and any attachments transmitted with it may contain legally privileged and
confidential information. It is not intended for transmission to, or receipt by, any unauthorized persons. If you
have received this message in error, please (i) do not read it, (ji) reply to the sender that you received the
message in error, and (iii) erase or destroy the message and all attachments. Legal advice contained in the
preceding message is solely for the benefit of the Eimer Stahl LLP client(s) represented by the Firm in the
particular matter that is the subject of this message, and may not be relied upon by any other party.
[Quoted text hidden]
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ih Gmail Ryan
Ryan Wed, Mar 22, 2023 at 5:43 PM
To: "Vierra, Collin" , rdunn@eimerstahl.com
Ce: "Zimmerman, Brian W." , "Chong, Jessica" ,
“Reisch, Nick" , Ernesto Aldover
Thanks, Collin. | will complete my M&C declaration on that front now that | know plaintiffs' position.
Regarding the arbitration, let me confer with Mr. Bragg and get back to you, but | don't anticipate it being a
problem to arbitrate in one location.
Best regards,
Ryan
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4
Preview
Exhibit 5 (Parties’ meet and confer correspondence from March 16 to March 22 regarding Defendants’ Proposed Motion to Strike)3/23/23, 5:04 PM Gmail - M&C in Arntsen & John and Jacky's New Matter ivy Gmail Ryan M&C in Arntsen & John and Jacky's New Matter Ryan Thu, Mar 16, 2023 at 4:33 PM To: rdunn@eimerstahl.com, "Vierra, Collin" , "Zimmerman, Brian W." , "Chong, Jessica" , "Reisch, Nick" , Ernesto Aldover Greetings Messrs Dunn and Vierra: Now that Judge Foiles has approved Defendant Bragg and SVRV's request to set aside Plaintiffs' default and extend defendants’ time to respond, | send this email pursuant to CCP 435.5 to meet and confer with Plaintiffs before the filing of any motion to strike. First, Plaintiffs' First Amended Complaint ("1AC") and John and Jacky's complaint ("Complaint") make a series of allegations about the Moore Road operating agreements. | am using Exhibit C & D to Ms. Dunn's declaration filed in the BK Court (which are identified as the February 2018 "Effective Operating Agreements" in the 1AC and the Complaint), which | have attached to this email. The 1AC and Complaint make a series of allegations purportedly based on what the Effective Operating Agreements say. For example, at Para. 47 of the Complaint, John and Jacky allege "The Effective Operating Agreements provided, inter alia, that 'unanimous approval of the Members in a consent in writing’ was required for 'the admission of a new Member or a change in any Member's Membership Interest, Ownership Interest, Percentage Interest, or Voting Interest,’ and ‘[t]he amendment of th[ese] Agreement[s]." (See also, Para. 54 of 1AC.). However, the Effective Operating Agreements attached as Exhibits C & D to Ms. Dunn's declaration do not contain any such language as Plaintiffs have quoted in their pleadings that | can find. If | have missed it, can you point me to it? In fact, what Plaintiffs' quote runs contrary to EOA's language at Article III, Para. 2 (p. 12 of Exhibit C) that states that Passive Members (i.e., Plaintiffs - see Para. 55 of 1AC: "Bob and the Arntsen Partnership, as well as any later-investing Plaintiffs, were Passive Members, entitled to the first distributions from the Project. SVRV was the Active Member") "shall have no voting rights" and "shall not be involved in any management decisions . . ." (emphasis added). Consistent with the EOA's position on Passive Members' lack of any voting power in the Moore Road LLCs, the EOA gives only the "Active Member" the right to admit additional members. The Complaints admit SVRV was the Active Member. As such, Bragg as manager of the Moore Road LLCs, was empowered pursuant to Article III, Para. 3 (p. 12 of Exhibit C) to admit Paramont as a member of the Moore Road LLCs with no input from the Plaintiffs at all: "3. Admission of Additional Members. Additional Members may be admitted with the unanimous approval of all Active Members. Additional Members will participate in the, 'Net Profits,' 'Net Losses’ (as such terms are defined in Section V1.1), and distributions of the Company on such terms as are determined by the Members. Exhibit A shall be amended upon the admission of an additional Member to set forth such Member's name and capital contribution" (emphasis added). | could not find this quotation to "Active Members" having the authority to admit additional members anywhere in Plaintiffs’ papers. Second, the Arntsen Plaintiffs, John, and Jacky make a number of allegations about Mr. Bragg's $75,000 broker fee (see, 1AC at paragraphs 12, 119, 124, 153, and 263; see a/so, Complaint at paragraphs 13, 72, 77, and 161). However, Article IV, Para. 7, last sentence explicitly states that Mr. Bragg will be authorized to list and sell the Moore Road properties: “It is specifically agreed that David Bragg will be the listing agent for the Property and any sale thereof, pursuant to a standard listing agreement." Exhibit C to Dunn Declaration at p. 17 of the Exhibit. Finally, with respect to John and Jacky's claims for violation of the EOA, those claims are subject to an arbitration clause (see, Article XII, Para. 4, at p. 27 of the Exhibit). The EOA does not appear to say what Plaintiffs allege it says in the 1AC and the Complaint, making the related causes of action and allegations based on those assertions subject to a motion to strike. Obviously, | would like to https://mail.google.com/mail/u/0/?ik=2b2115844c&view=pt&search=all&permmsgid=msg-a:r1 13892183530047 1138&simpl=msg-a:r113892183530047... 1/23/23/23, 5:04 PM Gmail - M&C in Arntsen & John and Jacky's New Matter avoid burdening the Court with more motion work related to Plaintiffs’ pleadings, so let me know what you think is the most efficient way to proceed on these issues. Best regards, Ryan 2 attachments fF Order Granting Extension of Time to Answer.pdf 168K Arnsten v. Bragg - Exhibits - doc 34.pdf 6536K https://mail.google.com/mall/u/0/?ik=2b2115844c8&vlew=pt&search=all&permmsgid=msg-a:t'113892 183530047 1138&simpl=msg-a:r113892183530047... 2/23/23/23, 5:04 PM Gmail - M&C in Arntsen & John and Jacky's New Matter ety Gmail Ryan M&C in Arntsen & John and Jacky's New Matter Ryan Sun, Mar 19, 2023 at 7:53 PM To: rdunn@eimerstahl.com, "Vierra, Collin" , "Zimmerman, Brian W." , "Chong, Jessica" , "Reisch, Nick" , Ernesto Aldover Greetings Messrs. Dunn and Vierra: | hate to pester you over the weekend, but there isn’t a lot of time to meet and confer on the issues identified below unless you agree to an extension of time. | am available to discuss at your convenience, Thank you, Ryan 314-749-2284 Sent from my iPhone On Mar 16, 2023, at 3:33 PM, Ryan wrote: [Quoted text hidden] https://mall.google.com/mail/u/0/?!k=2b2115844c&view=pt&search=all&permmsgid=msg-f.1760846026270700942&simpl=msg-f:1760846026270700942 1/1» 3/23/23, 5:04 PM Gmail - M&C in Arntsen & John and Jacky's New Matter pm; Gmail Ryan Vierra, Collin Mon, Mar 20, 2023 at 11:20 AM To: Ryan , "Zimmerman, Brian W." , "Chong, Jessica" , "Reisch, Nick" , Ernesto Aldover Ryan, Have you received an order from the Court that is not on the docket? The screenshot you provided shows that your proposed order was “returned unsigned,” i.e., not entered. Please let me know if you've received some other indication that the order was granted. As for John’s and Jacky’s complaint, you are correct that paragraph 47 inadvertently interposes language from the October 2018 operating agreement signed by John into the February 2018 Effective Operating Agreements. If need be, we could amend the complaint to correct that allegation, though that doesn’t seem necessary at this point as that correction would not diminish the force of Plaintiffs’ claims. The February 2018 Effective Operating Agreement required unanimous written consent to be amended, and as you noted, new members would participate in the net profits, net losses, and distributions only “on such terms as are determined by the Members.” Indeed, that strengthens Plaintiffs’ argument that the Paramont Defendants were not entitled to a “preferred” position vis-a-vis the other investors in the Moore Road Project, but instead had an equal interest in the Project. John and Jacky will nonetheless stipulate to correcting that language in their complaint. Next, it does not appear that you contend that any of John’s and Jacky’s allegations about Bragg’s brokerage fee are inaccurate. Bragg is welcome to raise the contractual provision you cited as a defense, if he would like, but that does not indicate any inaccuracy in John’s and Jacky’s complaint, and thus there is no subject here for a motion to strike. Finally, as Bragg and SVRV are aware, neither John nor Jacky ever signed—or was even presented with—the EOAs. Therefore, neither of them consented to it, nor can they be bound by the arbitration provision in those agreements. | am happy to meet and confer this week to discuss these matters further if that would be helpful. Collin Vierra Ej mersta h lu Eimer Stahl LLP www.eimerstahl.com 99 Almaden Blvd, Suite 600 San Jose, CA 95113-1605 https://mall.google.com/mail/u/0/?ik=2b2115844c&view=pt&search=all&permmsgid=msg-f:1760904408762290974&simpl=msg-f:1760904408762290974 1/23/23/23, 5:04 PM Gmail - M&C in Arntsen & John and Jacky's New Matter Phone: 408-889-1668 Mobile: 831-917-8266 cvierra@EimerStahl.com NOTICE: This e-mail message and any attachments transmitted with it may contain legally privileged and confidential information. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this message in error, please (i) do not read it, (ii) reply to the sender that you received the message in error, and (iii) erase or destroy the message and all attachments. Legal advice contained in the preceding message is solely for the benefit of the Eimer Stahl LLP client(s) represented by the Firm in the particular matter that is the subject of this message, and may not be relied upon by any other party. From: Ryan Sent: Thursday, March 16, 2023 2:34 PM To: Dunn, Robert ; Vierra, Collin ; Zimmerman, Brian W. ; Chong, Jessica ; Reisch, Nick ; Ernesto Aldover Subject: M&C in Arntsen & John and Jacky's New Matter [Quoted text hidden} https://mail.google.com/mail/u/0/?ik=2b2115844c&view=pt&search=all&permmsgid=msg-f:1760904408762290974&simpl=msg-f:1760904408762290974 2/23/23/23, 5:05 PM Gmail - M&C in Arntsen & John and Jacky's New Matter 4 Gmail Ryan M&C in Arntsen & John and Jacky's New Matter Ryan Tue, Mar 21, 2023 at 5:16 PM To: "Vierra, Collin" , rdunn@eimerstahl.com Ce: "Zimmerman, Brian W." , "Chong, Jessica” , "Reisch, Nick" , Ernesto Aldover Greetings, have not received an order - most likely because it was going to be returned unsigned - but per your request for an indication that the order was granted refer to the docket entry at 3.9.23: "03/09/2023 Proposed Order Received View Document | Proposed Order Received RETURNED UNSIGNED; GRANTING DEFENDANTS DAVID BRAGG AND SILICON VALLEY REAL V Comment RETURNED UNSIGNED; GRANTING DEFENDANTS DAVID BRAGG AND SILICON VALLEY REAL VENTURES REQUEST FOR AN EXTENSION OF TIME TO RESPOND OR ANSWER" (emphasis added). Second, with regard to “John’s and Jacky's complaint, you are correct that paragraph 47 inadvertently interposes language from the October 2018 operating agreement signed by John into the February 2018 Effective Operating Agreements," this side-steps my question a bit. Bob attached what he contends is the EOA (dated Feb. 2018) to his affidavit filed in the BK action as Exhibits C & D. John did the same in his affidavit in the BK action as Exhibit A (dated June 2018 and mislabeled in the Index of Exhibits), Neither of those EOAs contain the language alleged in the complaints, or as alleged by Bob in his affidavit filed in the BK action, Specifically, | cannot find where the EOAs (and the Feb. 2018 and June 2018 EOAs are substantively identical) say “unanimous approval of the Members in a consent in writing” was required for "the admission of a new Member or a change in any Member's Membership Interest, Ownership Interest, Percentage Interest, or Voting Interest," and the same for any amendment to the EOA (see, e.g., Amtsen Decl., P. 5:7-11; Para, 54 of FAC; and Para. 7 and 47 of Complaint). In short, the EOAs Plaintiffs are relying on do not say what they are alleging. Is it possible Plaintiffs quoted from a different operating agreement? Again, If |am missing the language out of the EOAs contained in Plaintiffs pleadings and affidavits, please Identify It for me (I've attached the exhibits to Bob and John's BK declarations for your convenience - doc 28 are Bob's exhibits; doc 44 are John's exhibits). The EOAs Plaintiffs swore to and have sued on gave SVRV as the Active Member the sole discretion to add New Members. And it did not require “unanimous written consent" from all members to effect an amendment. All the EOAs state in that regard is that “All amendments to this Agreement will be in writing and signed by all of the Members." In writing, and signed - approval is not mentioned. Third, Defendants’ do contend that Plaintiffs (Artsens, John, and Jacky's) allegations about Bragg’s brokerage fee are subject to strike because they are irrelevant, false, and improper (see CCP 436). Bragg was explicitly authorized by the EOAs to serve as the listing agent for the sale of the Moore Road Projects and that was disclosed in each of the EOAs, It's difficult to determine how Plaintiffs were harmed by this when it was explicitly disclosed in the documents they verify (repeatedly) governed the Moore Road Project, The Court can take judicial notice of the EOAs filed in the BK matter and strike the allegations. | request that you consider removing all allegations slated to Bragg's broker fee gained from sale of the Moore Road Properties as it was authorized and agreed to under the EOAs your olients are suing on. In addition, and | did not raise this in my last meet and confer email, the allegations In 1AC at Para. 162-164 are irrelevant and subject to strike, i.e. "Bragg Refuses to Acknowledge this Litigation." | am failing to see how post-litigation actions have any bearing on the issues between the parties. Finally, you claim, that “as Bragg and SVRV are aware, nelther John nor Jacky ever signed—or was even presented with—the EOAs. Therefore, neither of them consented to it, nor can they be bound by the arbitration provision in those agreements." First, you admit below John signed the EOA: "As for John’s and Jacky's complaint, you are correct that paragraph 47 inadvertently interposes language from the October 2018 operating agreement signed by John into the February 2018 Effective Operating Agreements." Second, Jacky and John have sued for breach of the EOA which requires them to allege itis a valid agreement capable of being enforced (see Complaint, 5th and 6th COA). If itis Jacky and John's position that they will not be bound by thelr agreement to arbitrate disputes of the EOA, please so state explicitly so Defendants can prepare a motion to compel arbitration with respect to their claims. Given that the time is short to get this information before the Court, please let me know what you believe the most efficient way to proceed is. Best regards, Ryan [Quoted text hidden] 2 attachments, https://mail.google.com/mall/u/0/71k=2b2115844c&view=pt&search=all&permmsgid=msg-a:r-9149383799696914329&simpl=msg-a:r-91493837996969... 1/23/23/23, 5:05 PM Gmail - M&C in Arntsen & John and Jacky's New Matter 4B) Amsten v, Bragg - Exhibits -doe 44.paf 1897K Ry Ammsten v. Bragg - Exhibits Affidavit - doc 28.paf 6601K https://mail.google.com/mail/u/0/7ik=2b2115844c&view=pt&search=all&permmsgid=msg. r-9149383799696914329&simpl=msg-a:r-91493837996969... 2/23/23/23, 5:05 PM Gmail - M&C in Arntsen & John and Jacky's New Matter ih Gmail Ryan Ryan Wed, Mar 22, 2023 at 5:09 PM To: "Vierra, Collin" , rdunn@eimerstahl.com Ce: "Zimmerman, Brian W." , "Chong, Jessica" , “Reisch, Nick" , Ernesto Aldover Greetings Messrs. Dunn & Vierra: | have not received any response about the language in the EOAs regarding unanimous consent from Passive Members to admit and amend those documents yet, but have had the opportunity to go through Plaintiffs’ 1AC in detail. In an effort to further meet and confer with Plaintiffs, these are the allegations Defendants Bragg and SVRV will move to strike based on CCP sections 435-437. Please let me know whether Plaintiffs will agree to amend their pleadings to remove the following allegations. If not, then these will go into a motion to strike by Friday's filing deadline. Thanks! Best regards, Ryan 1. FAC 22, last clause: “... in carrying out the fraud and other misconduct complained of herein” (improper matter inserted in a description of defendant). 2. FAC 24, last clause: “..., who routinely siphoned money from SVRV’s accounts to pay themselves and their families for unauthorized expenses that were never properly accounted for” (improper matter inserted in a description of defendant). 3. FAC 9/54: “... the Effective Operating Agreements required ‘unanimous approval of the Members in a consent in writing’ for: ‘the admission of a new Member or a change in any Member’s Membership Interest, Ownership Interest, Percentage Interest, or Voting Interest; ‘[alny other act outside the ordinary course of the Company’s activities’ and ‘[tlhe amendment of th[ese] Agreement{s]” (false assertion — the language quoted and relied upon by Plaintiffs is not found in the Effective Operating Agreement; see, Request for Judicial Notice, Exhibit 1, Article Ill, [2 at p. 17 of Exhibit C to Amsten’s Bankruptcy Declaration: “Passive Members shall not be involved in any management decisions affecting the Company or Property, and shall have no voting rights, but may provide input to the Active Members from time to time about https://mail.google.com/mail/u/0/?\k=2b2115844c&view=pt&search=all&permmsgid=msg-a:r349254 7036667 1447 12&simpl=msg-a:1349254703666714... 1/4» 3/23/23, 5:05 PM Gmail - M&C in Amtsen & John and Jacky's New Matter any issues relating to the Project;” see also, id at 3: “Additional Members may be admitted with the unanimous approval of all Active Members") 4. FAC 4/70, 71, 72, and 73, in their entirety as irrelevant to any cause of action asserted by Plaintiffs. 5. FAC 480: “Plaintiffs never would have consented to such wholesale amendments to the Effective Operating Agreements ...” (irrelevant; the Effective Operating Agreement did not authorize Passive Members to do so and any amendment under its terms only had to be in writing and signed by members; consent was not needed from Passive Members. See, RJN, Exh. 1, Art. Ill, ] 2, at p. 17 of the exhibit; see also, id. at Art. XIl, 77, at p. 34 of the exhibit: “Amendments. All amendments to this Agreement will be in writing and signed by all of the Members”). 6. FAC 483, entire paragraph (false and improper allegation; the Effective Operating Agreement’s terms explicitly authorized SVRV as the sole Active Member to add Paramont as a Member to the Moore Road LLCs; see, RUN, Exh. 1, Art. Ill, 93, at p. 17 of the exhibit). 7. FAC 91101, entire paragraph (Crevelt lawsuit and its resolution is irrelevant to any cause of action asserted by Plaintiffs). 8. FAC 91102, entire paragraph (irrelevant to any cause of action asserted by Plaintiffs). 9. FAC 4117: “Bragg did not disclose that he was service as Ms. Marchbank’s co-broker, which entitled him to 50% of the seller’s commission” (false allegation and irrelevant — the Effective Operating Agreement gave Bragg the exclusive right to be the listing/selling agent for the Moore Road Properties; see, RUN, Exh. 1, Art. IV, 7, at p. 23 of the exhibit (last sentence): “It is specifically agreed that David Bragg will be the listing agent for the Property and any sale thereof, pursuant to a standard listing agreement”). 10. FAC 9124, last clause: “[T]he only reason for making Bragg a co-broker was to enable him receive (sic) additional remuneration in the form of a $75,000 broker's fee” (false allegation and irrelevant — the Effective Operating Agreement gave Bragg the exclusive right to be the listing/selling agent for the Moore Road Properties; see, RJN, Exh. 1, Art. IV, 7, at p. 23 of the exhibit (last sentence): “It is specifically agreed that David Bragg will be the listing agent for the Property and any sale thereof, pursuant to a standard listing agreement”). 11. FAC 138, second sentence: “As of the date of sale for 387 Moore Road, its fair market value was estimated at $9,137,038" (irrelevant to any cause of action asserted by Plaintiffs; and improper matter using a https://mail.google.com/mail/u/0/?ik=2b21 15844c&view=pt&search=all&permmsgid=msg-a:1349254 7036667 1447 12&simpl=msg-a:r349254703666714... 2/4«3/23/23, 5:05 PM Gmail - M&C in Arntsen & John and Jacky's New Matter website's estimate of value instead of an appraisal on the property). 12. FAC 91138, third sentence: “As of the date of sale for 385 Moore Road, its fair market value was estimated at $7,509,490 (irrelevant to any cause of action asserted by Plaintiffs; and improper matter using a website's estimate of value instead of an appraisal on the property). 13. FAC 9141, 142, and 143, entire paragraphs (improper and irrelevant allegations to any cause of action asserted by Plaintiffs). 14. FAC 91153, last sentence: “... yet made a $75,000 broker's fee” (improper matter asserted as the broker’s fee was explicitly authorized by the Effective Operating Agreement; RUN, Exh. 1, Art. IV, 7, at p. 23 of the exhibit (last sentence): “It is specifically agreed that David Bragg will be the listing agent for the Property and any sale thereof, pursuant to a standard listing agreement"). 15. FAC 9162, 163, and 164, entire paragraphs (improper matter and irrelevant allegations to any cause of action asserted by Plaintiffs as post-litigation actions have no bearing on Plaintiffs’ claims). Plaintiffs punitive damage allegations: 16. FAC 9174: “... Bragg’s, [and] SVRV’s ,,. conduct was willful, outrageous, malicious, oppressive, and fraudulent. In addition to compensatory damages, punitive damages are necessary to punish ... Bragg [and] SVRV ... for this conduct and to discourage similar conduct in the future.” 17. FAC 9182: “... Bragg’s, [and] SVRV’s conduct was willful, outrageous, malicious, oppressive, and fraudulent. In addition to compensatory damages, punitive damages are necessary to punish ... Bragg [and] SVRV ... for this conduct and to discourage similar conduct in the future.” 18. FAC 4193: “... Bragg’s, [and] SVRV’s ... conduct was willful, outrageous, malicious, oppressive, and fraudulent. In addition to compensatory damages, punitive damages are necessary to punish ... Bragg [and] SVRV ... for this conduct and to discourage similar conduct in the future.” 19. FAC (200: “... Bragg’s, [and] SVRV's conduct was willful, outrageous, malicious, oppressive, and fraudulent. In addition to compensatory damages, punitive damages are necessary to punish .,. Bragg [and] SVRV ... for this conduct and to discourage similar conduct in the future.” 20. FAC 7[209, entire paragraph. 21. FAC 220: “... Bragg's, [and] SVRV’s ... conduct was willful, outrageous, malicious, oppressive, and fraudulent. In addition to compensatory damages, punitive damages are necessary to punish https://mail.google.com/mail/u/0/?ik=2b2115844c&view=pt&search=all&permmsgid=msg-a:1349254 7036667 1447 12&simpl=msg-a:r349254703666714... 3/43/23/23, 5:05 PM Gmail - M&C in Amtsen & John and Jacky's New Matter Defendants for this conduct and to discourage similar conduct in the future.” 22. 23. 24, 25. 26. 27. 28. FAC 4230, entire paragraph. FAC 1236, entire paragraph. FAC 71245, entire paragraph. FAC [252, entire paragraph. FAC 7259, entire paragraph. FAC 1265, entire paragraph. Request for relief, paragraph C: “Punitive damages.” 1] Plaintiffs allege SVRV was the sole Active Member and admit they were Passive Members. See, FAC [55 at 18:6-8: “Bob and the Arntsen Partnership . .. were Passive Members ... . SVRV was the Active Member”). [Quoted text hidden] https://mail.google.com/mail/u/0/?ik=2b2115844c&view=pt&search=all&permmsgid=msg-a:1349254 7036667 1447 12&simpl=msg-a:r3492547036667 14... 4lA3/23/23, 5:05 PM Gmail - M&C in Amtsen & John and Jacky's New Matter ih; Gmail Ryan Vierra, Collin Wed, Mar 22, 2023 at 5:31 PM To: Ryan Ce: "Zimmerman, Brian W." , "Chong, Jessica" , "Reisch, Nick" , Ermesto Aldover Ryan, The Amtsen Plaintiffs will not be amending their complaint. As for John’s and Jacky’s complaint, I’ve clarified that the contractual language was transposed and we are happy to stipulate to any clarification. | will also speak with my clients about the potential for arbitration, since the operating agreements they were shown (and which were incorporated into the subscription agreements they signed) both have arbitration provisions. | note that the arbitration clause in the operating agreement sent to John indicates that arbitration must be in San Mateo, while the one in the operating agreement shown to Jacky indicates that arbitration must be in San Francisco. Will Bragg and SVRV agree to arbitrate John’s and Jacky’s claims jointly in front of a single arbitrator, either in San Mateo or San Francisco? That would likely save costs for both sides. Collin Vierra EimerStahl. 408-889-1668 www.eimerstahl.com NOTICE: This e-mail message and any attachments transmitted with it may contain legally privileged and confidential information. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this message in error, please (i) do not read it, (ji) reply to the sender that you received the message in error, and (iii) erase or destroy the message and all attachments. Legal advice contained in the preceding message is solely for the benefit of the Eimer Stahl LLP client(s) represented by the Firm in the particular matter that is the subject of this message, and may not be relied upon by any other party. [Quoted text hidden] https://mail.google.com/mail/u/0/?Ik=2b2115844c&view=pt&search=all&permmsgid=msg-f:1761108844295248558&simpl=msg-f:1761108844295248558 1/13/23/23, 5:05 PM Gmail - M&C in Arntsen & John and Jacky's New Matter ih Gmail Ryan Ryan Wed, Mar 22, 2023 at 5:43 PM To: "Vierra, Collin" , rdunn@eimerstahl.com Ce: "Zimmerman, Brian W." , "Chong, Jessica" , “Reisch, Nick" , Ernesto Aldover Thanks, Collin. | will complete my M&C declaration on that front now that | know plaintiffs' position. Regarding the arbitration, let me confer with Mr. Bragg and get back to you, but | don't anticipate it being a problem to arbitrate in one location. Best regards, Ryan [Quoted text hidden] https://mail.google.com/mail/u/0/7ik=2b2115844c8view=pt&search=all&permmsgid=msg-a:-8554855802396 1524508simpl=msg-air-85548558023961 ... 4