Preview
1 GATES EISENHART DAWSON
Steven D. McLellan (SBN 311395)
2 James L. Dawson (SBN 73521)
Marc A. Eisenhart (SBN 188518)
3 Claire A. Melehani (SBN 324763)
125 South Market Street, Suite 1200
4 San Jose, CA 95113-2288
Telephone: (408) 288-8100
5 Fax: (408) 288-9409
E-mail: sdm@gedlaw.com; jld@gedlaw.com; mae@gedlaw.com; cam@gedlaw.com
6
Janet Fogarty & Associates
7 Janet E. Fogarty (SBN 157460)
PO Box 1579
8 Millbrae, CA 94030
Telephone: (650) 652-5601
9 Email: jfogartylawfirm@yahoo.com
10 Attorneys for: King Plaza Center, LLC
11
12
SUPERIOR COURT OF THE STATE OF CALIFORNIA
13
COUNTY OF SAN MATEO – UNLIMITED JURISDICTION
14
15 DBP INVESTMENTS, a California General Lead Case No: CIV538897
Partnership (Consolidated with Case No. 19CIV07118)
16
Plaintiff, KING PLAZA CENTER, LLC’S
17 REQUEST FOR JUDICIAL NOTICE IN
18 SUPPORT OF MOTION TO STRIKE,
OR, IN THE ALTERNATIVE, TAX,
19 vs. PLAINTIFF DBP INVESTMENTS’ COST
MEMORANDUM
20
21
KING PLAZA CENTER, LLC, a Delaware Date: July 21, 2023
22 Limited Liability Company, BUA-QUACH, an Time: 9:00 AM
individual, SOVAN LIEN, an individual, Dept: 21
23 DONG VUONG, an individual, THANH LAI, Judge: Hon. Robert D. Foiles
and DOES 1 through 10
24
Trial Date: February 28, 2023
25 Defendants. Complaint Filed: June 1, 2016
26
27
28
King’s RJN ISO Mot. to Strike/Tax DBP’s Costs Lead Case No.: CIV538897
1
1 Pursuant to Evidence Code section 452, subdivision (d), King Plaza Center, LLC hereby
2 requests judicial notice of the following:
3 1. The First Amended Complaint for Injunctive Relief, filed in this Court in case
4 number CIV538897 on October 28, 2016, a copy of which is attached as Exhibit 1.
5 2. The docket in case number CIV538897.
6 3. The Complaint for Declaratory Relief, filed in this Court in case number
7 19CIV07118 on December 3, 2019, a copy of which is attached as Exhibit 2.
8 4. The Notice of Entry of Judgment or Order, filed in this Court in case number
9 19CIV07118 on May 20, 2020, a copy of which is attached as Exhibit 3.
10 5. King Plaza Center, LLC’s Trial Brief, filed in this Court in case number
11 CIV538897 on November 17, 2022, a copy of which is attached as Exhibit 4.
12 6. The minute order, filed in this Court in case number CIV538897 on November
13 22, 2022, a copy of which is attached as Exhibit 5.
14 7. The Notice of Entry of Judgment or Order, filed in this Court in case number
15 19CIV07118 on January 19, 2023, a copy of which is attached as Exhibit 6.
16 8. The Request for Dismissal, filed in this Court in case number CIV538897 on
17 January 20, 2023, a copy of which is attached as Exhibit 7.
18 9. The Request for Dismissal, filed in this Court in case number CIV538897 on
19 March 17, 2023, a copy of which is attached as Exhibit 8.
20 10. The Judgment, filed in Lead Case number CIV538897 (consolidated with case
21 number 19CIV07118) on April 18, 2023, a copy of which is attached as Exhibit 9.
22 11. The Memorandum of Costs filed by DBP, filed in Lead Case number CIV538897
23 (consolidated with case number 19CIV07118) on April 28, 2023, a copy of which is attached as
24 Exhibit 10.
25 12. King Plaza Center, LLC’s Trial Brief, filed in this Court in case number Lead
26 Case number CIV538897 (consolidated with case number 19CIV07118) on January 31, 2023, a
27 copy of which is attached as Exhibit 11.
28
King’s RJN ISO Mot. to Strike/Tax DBP’s Costs Lead Case No.: CIV538897
2
1 13. DBP Investments’ Objection to Tentative Statement of Decision, filed in this
2 Court in case number Lead Case number CIV538897 (consolidated with case number
3 19CIV07118) on March 23, 2023, a copy of which is attached as Exhibit 12.
4 14. DBP Investments’ Submission Pursuant to California Rule of Court 3.1590, filed
5 in this Court in case number Lead Case number CIV538897 (consolidated with case number
6 19CIV07118) on March 28, 2023, a copy of which is attached as Exhibit 13.
7
8 GATES EISENHART DAWSON
9
10 Dated: May 12, 2023 _______________________________
By: Steven D. McLellan
11 Attorneys for King Plaza Center, LLC
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
King’s RJN ISO Mot. to Strike/Tax DBP’s Costs Lead Case No.: CIV538897
3
EXHIBIT 1
>—*
STEVEN B. PISER, SBN 62414
[0
LAW OFFICES OF STEVEN B. PISER
A Professional Corporation
1300 Clay Street, Suite 1050 SAN MATEO eoumy
FILE D
OO
Oakland, California 94612
Telephone: (510) 835-5582
45-
Facsimile: (510) 832-1717
01
JOHN L. FITZGERALD, SBN 126613
LAW OFFICES OF JOHN L. FITZGERALD
101 California Street, Suite 2300
\I'Cfi
San Francisco, California 941 1
1
Telephone: (415) 689-1209
00
Attorneys for Plaintiff/Cross-Defendant
\O
DBP INVESTMENTS,
W a California General Partnership
|—‘
O
I—I |—‘
HIM/IV
l—'~
M
I—I CAD
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
4}-
I—I
IN AND FOR THE COUNTY OF SAN MATEO
I-- 01
I—- CD
DBP INVESTMENTS, a California General ) CASE No. CIV538897
Partnership, )
1—‘ \I
)
Plaintiff ) FIRST AMENDED COMPLAINT FOR
l—‘ 00
) INJUNCTIVE RELIEF
V.
I—I
\O
3
KING PLAZA CENTER, LLC, a Delaware )
[0 O Limited Liability Company, BUA-QUACH, )
cwsaeew
" """
an individual, SOVAN LIEN, an individual, )
I."
AMEN
[Q H DONG VUONG, an individual, THANH )‘ ll
,
Amended
LAI, and DOES 1 through 10 )
.i
236997
[\D [0
)
Defendants. )
[0 0)
) ; IllIll/IllIll/11111111111I 1
L0 A FIRST CAUSE OF ACTION
ENFORCEMENT OF EASEMENT AGREEMENT--
[\3 01
(As AGAINST KING PLAZA CENTER)
[\3 0‘ 1. An injunction is an appropriate remedy when a party’s rights under an easement
[\D \I agreement are infringed because of unreasonable interference by the owner of the servient
[\D 00 tenement. King Plaza Center, LLC is interfering with DBP Investments’ rights under a written
Law Offices of
1
Steven B. Piscr .
FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF
reciprocal easement agreement that grants DBP Investments:
[0 “(A) non-exclusive easement and right to use the parking spaces
OJ located within the KPPl Common Area for the parking (sic);
43 provided, however, that so long as any such parking spaces are
V
01 reserved for the use of official vehicles, such as police cars, the
easement and right to use herein granted shall not include such
reserved parking spaces.”
0000\10
2. The agreement Was executed on January 11, 1997 by DBP and King Plaza
Partners, defendant King Plaza Center’s predecessor-in-interest. By its terms, the obligations
“. . .1‘un with the land and (are) binding. . .all other persons acquiring all or any portion of the
Parcels.” On March 14, 2007, King Plaza Center, LLC acquired the parcel owned by King Plaza
12 Partners, and assumed all obligations under the January 11, 1997 agreement, which is attached
13 as Exhibit A and incorporated by this reference.
14 3. The agreement guards DBP’s rights. Among other things, under thc agreement,
15 defendant may not:
16 “(3) construct any permanent improvements on or within the
17 Common Area owned by it, except as specifically permitted
18 hereby;
19 (b) obstruct or impede vehicular or pedestrian traffic upon or
20 across the parking areas, entrances, exits, driveways, walks or
21 service drives located within the Common Area owned by it; or
22 (c) prevent or impair the others free use of the Common Area
23 owned by it for the free flow of vehicular or pedestrian ingress to
24 and egress from such other owner’s Parcel.”
25 King Plaza Center interferes unreasonably with DBP’S
26 easement.
27
28 IDefendant King Plaza Center, LLC is the successor-ui-iriterest to King Plaza Partnership, one of the two original
parties to the easement.
La'w Offices of 2
Steven B. Piser Fmsr AMENDED COMPLAINT FOR lNJUNC'l‘lVE'RELlEF
4. On April 27, 1998, the City Council of Daly City, adopted Resolution No. 98 —
36, a resolution adopting Ordinance 1255 which approved a lot split and imposed development
standards on the owners of the King Center. The standards are binding on defendant. The
development standards mandated, among other things:
\OOOVIONCfi-AOJIOH
0 Defendant will post signs, impose conditions upon tenants,
and make every effort to restrict deliveries to the
supermarket from parking in the customer parking lot by
large semi — trucks, refrigerated trucks, of trucks larger
than a four wheel delivery van between the hours of 8:00
am. and 7:00 pm, seven days per week. Smaller delivery
vehicles may make such deliveries, but active and effect
efforts to prohibit the above identified vehicles during the
stated hours are imposed as a necessary condition of this
Ht—‘F—‘l—lP—‘l—‘l—‘D—IF—l
subdivision approval.
mxiowm-bmo
0 No operable or inoperable vehicles shall be stored at the
site for more than 24 hours.
0 All parking on the site shall be shared for the entirety of the center.
5. But it appears defendant King Plaza Center does not believe it is required to abide
by the agreement. The parties’ respective parcels have a total 349 parking spaces. The spaces are
common area as defined in the agreement. So, defendant King is prevented from doing anything
to obstruct vehicular traffic or impair the free use of the spaces or free flow of vehicular or
pedestrian ingress and egress from the other’s parcel. But it has done just the opposite.
Defendant King has interfered and continues to interfere, with DBP’s use of the common area.
6. A portion of the common area for parking is adjacent to a supermarket tenant of
defendant King. The lot has 59 spaces. The lot fell into disrepair. King Plaza Center undertook
to make sure the lot is in good condition. But starting in 2012, defendant King allowed its tenant,
Manila Oriental Market, to use the lot for deliveries, storage of large trailers and garbage
storage---both in containers and on the ground. DBP has made frequent requests to defendant
Law Offices of
3
Steven B. Piser
FIRST AMENDED COMPLAINT FOR lNJUNCTlVE RELIEF
King to clean up the lot and control its tenant. King has made promises to address the situation.
The managing member of defendant King kept saying she would talk to its tenant. But instead of
things getting better, they have gotten worse. Garbage has piled up. It smells. The lot is poorly
lit. In essence, the lot which is intended to serve as parking for 59 vehicles, is in such poor
OmfiOWCn-PCOMH
condition that it is no longer able to serve for its intended purpose.
King Plaza Center continues to ignore requests to address the situation and abide by the
agreement. King does not care. And even though it has the legal ability and resources to do what
it is required to do, or compel its tenant to do so, it has not.
7. In the fall of 201 5, in further defiance of its obligations under the agreement,
defendant King set out to impair and restrict the use of the spaces in the lot. And it did so in a
way that directly impacts DBP’s tenant, a bowling alley that has been a fixture in the community
for nearly three decades. King Plaza Center, without consulting with DBP, posted a two—hour
time limit on all but a few parking spaces. (The few spaces it did not post a time restriction on
were restricted as described in paragraph 7 of this complaint.) The restrictions
Omflom-DQJLOI—‘O
are accompanied
h—Il—JP—‘l—‘l—JI—‘l—‘l—‘HH
by a threat: King posted signs stating any vehicle parked more than two hours would be towed at
the owner’s expense. Only DBP’s tenant is detrimentally affected by the restriction. Defendant
King has refused to remove the restrictions or cease threatening removal of vehicles.
8. The agreement is clear: The only spaces that may be reserved are for police or
official vehicles. But defendant King has identified spaces (immediately across from DBP’s
20 tenant) as being for the exclusive use of defendant’s tenants. Defendant has refused to end its
4.4 illegal reservation of spaces.
9. DBP has performed all conditions on its part to be performed under the
agreement, except those for which DBP’s performance is excused because of the conduct of
defendant, King.
10. DBP has no adequate remedy at law. Damages do not provide compensation to
DBP, its tenant or its tenant’s invitees for their inability to use the property as intended.
Interference with a property interest---a real property interest---should be remedied by injunctive
relief.
Law Offices of
4
Steven B. Piscr
FrRsr AMENDED COMPLAINT FOR INIUNCTIVE RELIEF
11. The identities of those defendants sued herein as Does 1 through 10 are presently
unknown to plaintiff, who sues such defendants pursuant to Code of Civil Procedure § 474.
When plaintiff discovers their identities, plaintiff will seek leave of cOurt to amend this
complaint. Plaintiff is informed and ”believes each fictitiously named defendant is responsible in
\DOO\lO\CJ'l—l>-OD[\’>»-—a
some manner for the infringement of plaintiffs rights or has provided defendant King with
substantial assistance.
12. At all times herein mentioned, the defendants, and each of them, were the agents,
servants and/or employees of each of the remaining defendants and in doing the things
hereinafter set forth did so within the scope of their agency and/or employment.
l3. Defendant King Plaza Center, LLC, is a limited liability company organized and
existing under the laws of the State of California with its principal place of business in San
Mateo County. It owns the property described in the agreement as the “KPP Parcel.”
14. DBP Investments is a California General Partnership with its principal place of
business in San Mateo County. It is the owner of the property described in the agreement as the
“DBP Parcel.” DBP’s parcel has one tenant, Classic Bowling Center. Classic has sixty lanes. It
wwmwmwl—JHHv—‘HHHl—‘l—‘y—l
serves as a center for the community, offering its services and facilities to many elderly people
and youngsters.
CH-BOJMHO©OO\TO\CHLCBMHO
15. The agreement which is the subject of this action was executed in San Mateo
County and related to property in this county. It was executed by Jeffrey Litke and Mark Litke
for King Plaza Partners. King Plaza Center LLC purchased the property from King Plaza
Partners in 2007. Although the agreement was not recorded, King Plaza Center LLC was aware
of it and aclmowledged, in writing, that it received the agreement before it acquired the property.
The agreement is binding on the parties to this lawsuit.
16. The acts described in paragraphs 5 through 8 of this complaint constitute
unreasonable interference with DBP’s rights under the easement. Unless this court permanently
enjoins defendant King Plaza Center LLC, its tenants and subtenants and their concessionaires,
27 suppliers, patrons, customers, invitees, guests, employees and agents from acting in the manner
28 described in this complaint, DBP will suffer irreparable harm for which damages will not
Law Oflices of 5
Steven B. Piser
FIRST AMENDED COMPLAINT FOR lNJUNCTlVE RELIEF
provide a remedy.
WHEREFORE, plaintiff prays judgment as set forth below.
SECOND CAUSE OF ACTION
NUISANCE AND INTERFERENCE WITH PROPERTY RIGHTS
(As AGAINST KING PLAZA CENTER, QUACH, LIEN, VUONG AND LAI)
©00\10\01-I>COL\DH
17. Plaintiff re-pleads 111] 1 through 4, 6, 10 through l2, l4 and 16, of the first
amended complaint, as if fully set forth.
18. DBP is informed and believe and upon basis alleges that King Plaza Center, LLC
is the lessor and Bua Quach, Sovan Lien, Dong Vuong, and Thanh Lai or their predecessors, are
the lessees, to a lease agreement which has been amended on at least six occasions. Per the
terms Of the lease and amendments, King has leased to Quach, Lien, Vuong and Lai
approximately 32,359 square feet of space at 950 King Drive, #112 and #l 14, on which Quach,
Lien, Vuong and Lai own and operate a general food supermarket known as the Manila Oriental
Market.
19. Defendants, Quach, Lien, Vuong and Lai, and each of them, have wrongfully and
knowingly hindered and obstructed DBP’s and its guests’, agents’ and licensees’ rights to enter,
use and cross over a portion of the property constituting DBP’S easement property rights as
described in Exhibit A, in the following ways:
NMMMNMNMNl—‘I—‘HHHF—‘P—‘l—Jl—‘H
a) They have permitted large vehicles to load and unload between the hours
Of8100 am. to 7:00 pm.
mVQGLwNHOOWQOG-hwwwo
b) Large vehicles have been stored for more than 24 hours on the property.
0) Garbage has been allowed to accumulate on the property.
d) Forklift, garbage receptacles, boxes, trash and other waste have taken
over, and now occupy, space intended to be used for ingress and egress.
Defendants’ conduct is continuing and varied; the conduct set forth in this paragraph is
not meant to be exhaustive and DBP may seek to amend or supplement this complaint to assert
additional acts as appropriate.
20. DBP is informed and believes and upon such basis alleges defendants Bua Quach,
Sovan Lien, Dong Vuong and Thanh Lai are residents of California.
Law Offices of
6
Steven B. Piser
FIRST AMENDED COMPLAINT FOR lNJUNCTlVE RELIEF
21. By acting and failingto act King, and Quach, Lien, Vuong and Lai have created a
condition that has harmed, obstructed and interfered with DBP’s beneficial use of the King
Center parking lot.
22. DBP has not consented to defendants’ conduct.
OOONGCfl-D-OJLQs—a
23. Defendants’ conduct is so unreasonable that it should be enjoined. Unless this
court pemianently enjoins defendants Quach, Lien, Vuong and Lai, its subtenants and their
concessionaires, suppliers, patrons, customers, invitees, guests, employees and agents from
acting in the manner described in this complaint, DBP will suffer irreparable harm for which
damages will not provide a remedy.
)—-‘
O WI-EREFORE, plaintiff prays judgment as follows:
,.... D—‘
1. An order permanently enjoining defendant King Plaza Center LLC, its
i—A
[0 tenants and subtenants and their concessionaires, suppliers, patrons,
t—‘ OJ customers, invitees, guests, employees and agents from:
|—‘
4>~
a. Obstructing or impeding vehicular or pedestrian traffic upon or
l—-‘
01 across the parking areas, entrances, exits, driveways, walks or
,___. C7\ service drives located within the Common Area owned by King
r——- \1 Plaza Center LLC;
I—- 00 Preventing or impairing the others free use of the Common Area
owned by King Plaza Center LLC or the free flow of vehicular or
pedestrian ingress to and egress from DBP’s Parcel.
An order permanently enjoining defendants Quach, Lien, Vuong and Lai,
its tenants and subtenants and their concessionaires, suppliers, patrons,
customers, invitees, guests, employees and agents from:
a. Obstructing or impeding vehicular or pedestrian traffic upon or
across the parking areas, entrances, exits, driveways, walks or
service drives located within the Cormnon Area owned by King
Plaza Center LLC;
Preventing or impairing the others free use of the Common Area
Law Offices of
7
Steven B. Piser
FIRST AMENDED COMPLAINT FOR lNJUNCTIVE RELIEF
owned by King Plaza Center LLC or the free flow of vehicular or
pedestrian ingress to and egress from DBP’s Parcel.
3. An order requiring King Plaza Center LLC, its tenants and subtenants and
their concessionaires, suppliers, patrons, customers, invitees, guests,
kOOO‘QONO'l-D-OJIOI—t
employees and agents to:
a. Remove all signs or marking which place any restrictions on
parking in the common area;
b. Reserving any spaces in the common area except for spaces
specifically designated for the use of emergency vehicles common
area;
0. Maintain the common area so as to enable the use of the easement
by DBP and prevent the obstruction of the parking in the common
area.
4. For costs of suit; and
i—‘l—JI—lr—‘v—Jl-‘l—‘l—‘t—‘P-l
©00\]O\Cfl-DCDIOHO
For such other and further relief as the court deems proper.
LAW OFFICES OF STEVEN B. PISER
A Professional Corporation
DATED: Octoberfi, 2016 By: fl
fiEVEN B. PISER
Attorney for Plaintiff/Cross-Defendant
DBP INVESTMENTS, a California
21
General Partnership
2-2
23
24
25
26
27
28
Law Offices of
8
Steven B. Piser
FlRST AMENDED COMPLAINT FOR [NJUNCTWE REUEF
Exhibit ”A”
.-
mm
m
RECORDING REQUESTED BY,
RECORDED MAIL To:
)
)
’
in mm
mm NATIONAL Tm COMPANY
;
50 CALHORHIA STREET #2950 )
SAN FRANCISCO. CA. 9§111 )
ESCROW NO. 995052 a
3
)
)
x 8? n m: n'
AFN? 091-475-150 901—17548!) 091475-190
RECIPROCAL BASEMENT AND OPERATION AW
This Reciprocal Easement and Operation Agreement is entered into
, to be effective on
1991, the date it is
recorded in the official. records of San Mateo County, by and between
DBP INVESTMENTS, a California General Partnership ("DBP") , consisting
of. Richard A. Bocci, Debra L. Bocai, Mark L. Pender, Hairy V: Fender,
Robert c. DeVincenzi, Steven Devincenzi and Janica DeVincenzi, and KING
PLAZA PARTNERS, California general partnership ("ICPP") , consisting
a
of Litke Properties, Inc. , a California corporation and Mark Litke, as
DBP and KPP
W:
trustee of the Mark Harlan Litke Trust.
are the owners of that certain real property located in
Daly city, San Mateo County, stete of California, more particularly
described as Lots 3’; and B, as shown on that certain subdivision map
(the "Map") , recorded in Book , at Page , Official fissures
—1—
of the San Katee County, state of California. Concurrently herewith,
DBP and KP? have conveyed Parcel A, as shown on the Map, to DB? (the
"DB?Parcel"), and Parcel B, as shown on the Map, to KPP (the "RP?
Parcel"). The DBP Parcel and the KP? ParCel are sometimes referred to
collectively as the "Shopping Center".
DBP desire to grant to each other mutual and reciprocal
and KP?
easements over their respective parcels for purposes of providing
a moon parking, ingress and egress to each others! parcel and utility
service, and to set forth their agreement ‘with respect to the
maintenance, repair and operation of certain improvements thereona The
conveyances of Lot A to DB? and Lot B to KP? are subject to the terms
‘
and conditions of this Agreement.
NOW, THEREFORE, for and in consideration a
the mutual covenants
contained herein and for other valuable consideration, receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. meme.
(a) The term “DB? Common Area" shall mean all public and common
..
facilities erected on the DBP Parcel intended for common use,
including, but not limited to, entrances, exits, driveways, access
—..........~.
roads, parking areas, sidewalks, service drives, directional signs,
lighting facilities (excluding lighting attached to buildings
constructed on the DBP Parcel), utility services, drainage facilities,
landscaped areas (provided such landscaped areas are located inside,
about or are adjacent to driveways, sidewalks or parking areas intended
for common use), and other facilities and areas intended for common
use, as the same may exist from time to time in or on the DBP Parcel,
but not including any buildings constructed on the 332 Parcel and
refuse receptacles located on the DB? Parcel intended for use solely
_2_
by DBP and its tenants. Landscaping located within the DB? Pascal and
not inside, about or are adjacent to drivei’ways, sidewalks or parking
areas intended for common use shall not constitute part of the DE?
Common Area, and shall he the sole responsibility of DBP, subject to
paragraph 6.
(b) The term "KP? Colman Area" shall mean all yublic and common
facilities erected on the KPP Parcel intended for common use,
including, but not limited to, entranossfl exits, driveways, access
roads, parking areas, sidewalks, service
i
ives, directional signs,
lighting facilities (excluding lighting attached to buildings
constructed on the RP? Paréel other than: lighting attached to the
dental building located on the KPP Parcel: specifically intended for
illumination of the upper parking lot), utility services, drainage
facilities, landscaped areas (provided such landscaped areas are
located inside, about or are adjacent t? driveways, sidewalks or
parking areas intended for common use), andjother facilities and areas
intended for common use, as the same may exist from time to time in or
on the KPP Parcel, but not including any bliildings constructed on the
KPP Parcel and refuse receptacles located on the KPP Parcel intended
for use solely by KPP and its tenants. Landscaping located within the
RP? Parcel and not inside, about or aria adjacent to driveways,
sidewalks or parking areas intended for commion use shall not constitute
part of the KPP Common Area, and shall be the sole responsibility of
l
KPP, subject to paragraph 6.
(c) The term "Permitted Users" shall mean DBP and KPP, their
heirs, executors, administrators, assigns, and their partners, tenants,
su
Preview
1 GATES EISENHART DAWSON Steven D. McLellan (SBN 311395) 2 James L. Dawson (SBN 73521) Marc A. Eisenhart (SBN 188518) 3 Claire A. Melehani (SBN 324763) 125 South Market Street, Suite 1200 4 San Jose, CA 95113-2288 Telephone: (408) 288-8100 5 Fax: (408) 288-9409 E-mail: sdm@gedlaw.com; jld@gedlaw.com; mae@gedlaw.com; cam@gedlaw.com 6 Janet Fogarty & Associates 7 Janet E. Fogarty (SBN 157460) PO Box 1579 8 Millbrae, CA 94030 Telephone: (650) 652-5601 9 Email: jfogartylawfirm@yahoo.com 10 Attorneys for: King Plaza Center, LLC 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF SAN MATEO – UNLIMITED JURISDICTION 14 15 DBP INVESTMENTS, a California General Lead Case No: CIV538897 Partnership (Consolidated with Case No. 19CIV07118) 16 Plaintiff, KING PLAZA CENTER, LLC’S 17 REQUEST FOR JUDICIAL NOTICE IN 18 SUPPORT OF MOTION TO STRIKE, OR, IN THE ALTERNATIVE, TAX, 19 vs. PLAINTIFF DBP INVESTMENTS’ COST MEMORANDUM 20 21 KING PLAZA CENTER, LLC, a Delaware Date: July 21, 2023 22 Limited Liability Company, BUA-QUACH, an Time: 9:00 AM individual, SOVAN LIEN, an individual, Dept: 21 23 DONG VUONG, an individual, THANH LAI, Judge: Hon. Robert D. Foiles and DOES 1 through 10 24 Trial Date: February 28, 2023 25 Defendants. Complaint Filed: June 1, 2016 26 27 28 King’s RJN ISO Mot. to Strike/Tax DBP’s Costs Lead Case No.: CIV538897 1 1 Pursuant to Evidence Code section 452, subdivision (d), King Plaza Center, LLC hereby 2 requests judicial notice of the following: 3 1. The First Amended Complaint for Injunctive Relief, filed in this Court in case 4 number CIV538897 on October 28, 2016, a copy of which is attached as Exhibit 1. 5 2. The docket in case number CIV538897. 6 3. The Complaint for Declaratory Relief, filed in this Court in case number 7 19CIV07118 on December 3, 2019, a copy of which is attached as Exhibit 2. 8 4. The Notice of Entry of Judgment or Order, filed in this Court in case number 9 19CIV07118 on May 20, 2020, a copy of which is attached as Exhibit 3. 10 5. King Plaza Center, LLC’s Trial Brief, filed in this Court in case number 11 CIV538897 on November 17, 2022, a copy of which is attached as Exhibit 4. 12 6. The minute order, filed in this Court in case number CIV538897 on November 13 22, 2022, a copy of which is attached as Exhibit 5. 14 7. The Notice of Entry of Judgment or Order, filed in this Court in case number 15 19CIV07118 on January 19, 2023, a copy of which is attached as Exhibit 6. 16 8. The Request for Dismissal, filed in this Court in case number CIV538897 on 17 January 20, 2023, a copy of which is attached as Exhibit 7. 18 9. The Request for Dismissal, filed in this Court in case number CIV538897 on 19 March 17, 2023, a copy of which is attached as Exhibit 8. 20 10. The Judgment, filed in Lead Case number CIV538897 (consolidated with case 21 number 19CIV07118) on April 18, 2023, a copy of which is attached as Exhibit 9. 22 11. The Memorandum of Costs filed by DBP, filed in Lead Case number CIV538897 23 (consolidated with case number 19CIV07118) on April 28, 2023, a copy of which is attached as 24 Exhibit 10. 25 12. King Plaza Center, LLC’s Trial Brief, filed in this Court in case number Lead 26 Case number CIV538897 (consolidated with case number 19CIV07118) on January 31, 2023, a 27 copy of which is attached as Exhibit 11. 28 King’s RJN ISO Mot. to Strike/Tax DBP’s Costs Lead Case No.: CIV538897 2 1 13. DBP Investments’ Objection to Tentative Statement of Decision, filed in this 2 Court in case number Lead Case number CIV538897 (consolidated with case number 3 19CIV07118) on March 23, 2023, a copy of which is attached as Exhibit 12. 4 14. DBP Investments’ Submission Pursuant to California Rule of Court 3.1590, filed 5 in this Court in case number Lead Case number CIV538897 (consolidated with case number 6 19CIV07118) on March 28, 2023, a copy of which is attached as Exhibit 13. 7 8 GATES EISENHART DAWSON 9 10 Dated: May 12, 2023 _______________________________ By: Steven D. McLellan 11 Attorneys for King Plaza Center, LLC 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 King’s RJN ISO Mot. to Strike/Tax DBP’s Costs Lead Case No.: CIV538897 3 EXHIBIT 1 >—* STEVEN B. PISER, SBN 62414 [0 LAW OFFICES OF STEVEN B. PISER A Professional Corporation 1300 Clay Street, Suite 1050 SAN MATEO eoumy FILE D OO Oakland, California 94612 Telephone: (510) 835-5582 45- Facsimile: (510) 832-1717 01 JOHN L. FITZGERALD, SBN 126613 LAW OFFICES OF JOHN L. FITZGERALD 101 California Street, Suite 2300 \I'Cfi San Francisco, California 941 1 1 Telephone: (415) 689-1209 00 Attorneys for Plaintiff/Cross-Defendant \O DBP INVESTMENTS, W a California General Partnership |—‘ O I—I |—‘ HIM/IV l—'~ M I—I CAD IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 4}- I—I IN AND FOR THE COUNTY OF SAN MATEO I-- 01 I—- CD DBP INVESTMENTS, a California General ) CASE No. CIV538897 Partnership, ) 1—‘ \I ) Plaintiff ) FIRST AMENDED COMPLAINT FOR l—‘ 00 ) INJUNCTIVE RELIEF V. I—I \O 3 KING PLAZA CENTER, LLC, a Delaware ) [0 O Limited Liability Company, BUA-QUACH, ) cwsaeew " """ an individual, SOVAN LIEN, an individual, ) I." AMEN [Q H DONG VUONG, an individual, THANH )‘ ll , Amended LAI, and DOES 1 through 10 ) .i 236997 [\D [0 ) Defendants. ) [0 0) ) ; IllIll/IllIll/11111111111I 1 L0 A FIRST CAUSE OF ACTION ENFORCEMENT OF EASEMENT AGREEMENT-- [\3 01 (As AGAINST KING PLAZA CENTER) [\3 0‘ 1. An injunction is an appropriate remedy when a party’s rights under an easement [\D \I agreement are infringed because of unreasonable interference by the owner of the servient [\D 00 tenement. King Plaza Center, LLC is interfering with DBP Investments’ rights under a written Law Offices of 1 Steven B. Piscr . FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF reciprocal easement agreement that grants DBP Investments: [0 “(A) non-exclusive easement and right to use the parking spaces OJ located within the KPPl Common Area for the parking (sic); 43 provided, however, that so long as any such parking spaces are V 01 reserved for the use of official vehicles, such as police cars, the easement and right to use herein granted shall not include such reserved parking spaces.” 0000\10 2. The agreement Was executed on January 11, 1997 by DBP and King Plaza Partners, defendant King Plaza Center’s predecessor-in-interest. By its terms, the obligations “. . .1‘un with the land and (are) binding. . .all other persons acquiring all or any portion of the Parcels.” On March 14, 2007, King Plaza Center, LLC acquired the parcel owned by King Plaza 12 Partners, and assumed all obligations under the January 11, 1997 agreement, which is attached 13 as Exhibit A and incorporated by this reference. 14 3. The agreement guards DBP’s rights. Among other things, under thc agreement, 15 defendant may not: 16 “(3) construct any permanent improvements on or within the 17 Common Area owned by it, except as specifically permitted 18 hereby; 19 (b) obstruct or impede vehicular or pedestrian traffic upon or 20 across the parking areas, entrances, exits, driveways, walks or 21 service drives located within the Common Area owned by it; or 22 (c) prevent or impair the others free use of the Common Area 23 owned by it for the free flow of vehicular or pedestrian ingress to 24 and egress from such other owner’s Parcel.” 25 King Plaza Center interferes unreasonably with DBP’S 26 easement. 27 28 IDefendant King Plaza Center, LLC is the successor-ui-iriterest to King Plaza Partnership, one of the two original parties to the easement. La'w Offices of 2 Steven B. Piser Fmsr AMENDED COMPLAINT FOR lNJUNC'l‘lVE'RELlEF 4. On April 27, 1998, the City Council of Daly City, adopted Resolution No. 98 — 36, a resolution adopting Ordinance 1255 which approved a lot split and imposed development standards on the owners of the King Center. The standards are binding on defendant. The development standards mandated, among other things: \OOOVIONCfi-AOJIOH 0 Defendant will post signs, impose conditions upon tenants, and make every effort to restrict deliveries to the supermarket from parking in the customer parking lot by large semi — trucks, refrigerated trucks, of trucks larger than a four wheel delivery van between the hours of 8:00 am. and 7:00 pm, seven days per week. Smaller delivery vehicles may make such deliveries, but active and effect efforts to prohibit the above identified vehicles during the stated hours are imposed as a necessary condition of this Ht—‘F—‘l—lP—‘l—‘l—‘D—IF—l subdivision approval. mxiowm-bmo 0 No operable or inoperable vehicles shall be stored at the site for more than 24 hours. 0 All parking on the site shall be shared for the entirety of the center. 5. But it appears defendant King Plaza Center does not believe it is required to abide by the agreement. The parties’ respective parcels have a total 349 parking spaces. The spaces are common area as defined in the agreement. So, defendant King is prevented from doing anything to obstruct vehicular traffic or impair the free use of the spaces or free flow of vehicular or pedestrian ingress and egress from the other’s parcel. But it has done just the opposite. Defendant King has interfered and continues to interfere, with DBP’s use of the common area. 6. A portion of the common area for parking is adjacent to a supermarket tenant of defendant King. The lot has 59 spaces. The lot fell into disrepair. King Plaza Center undertook to make sure the lot is in good condition. But starting in 2012, defendant King allowed its tenant, Manila Oriental Market, to use the lot for deliveries, storage of large trailers and garbage storage---both in containers and on the ground. DBP has made frequent requests to defendant Law Offices of 3 Steven B. Piser FIRST AMENDED COMPLAINT FOR lNJUNCTlVE RELIEF King to clean up the lot and control its tenant. King has made promises to address the situation. The managing member of defendant King kept saying she would talk to its tenant. But instead of things getting better, they have gotten worse. Garbage has piled up. It smells. The lot is poorly lit. In essence, the lot which is intended to serve as parking for 59 vehicles, is in such poor OmfiOWCn-PCOMH condition that it is no longer able to serve for its intended purpose. King Plaza Center continues to ignore requests to address the situation and abide by the agreement. King does not care. And even though it has the legal ability and resources to do what it is required to do, or compel its tenant to do so, it has not. 7. In the fall of 201 5, in further defiance of its obligations under the agreement, defendant King set out to impair and restrict the use of the spaces in the lot. And it did so in a way that directly impacts DBP’s tenant, a bowling alley that has been a fixture in the community for nearly three decades. King Plaza Center, without consulting with DBP, posted a two—hour time limit on all but a few parking spaces. (The few spaces it did not post a time restriction on were restricted as described in paragraph 7 of this complaint.) The restrictions Omflom-DQJLOI—‘O are accompanied h—Il—JP—‘l—‘l—JI—‘l—‘l—‘HH by a threat: King posted signs stating any vehicle parked more than two hours would be towed at the owner’s expense. Only DBP’s tenant is detrimentally affected by the restriction. Defendant King has refused to remove the restrictions or cease threatening removal of vehicles. 8. The agreement is clear: The only spaces that may be reserved are for police or official vehicles. But defendant King has identified spaces (immediately across from DBP’s 20 tenant) as being for the exclusive use of defendant’s tenants. Defendant has refused to end its 4.4 illegal reservation of spaces. 9. DBP has performed all conditions on its part to be performed under the agreement, except those for which DBP’s performance is excused because of the conduct of defendant, King. 10. DBP has no adequate remedy at law. Damages do not provide compensation to DBP, its tenant or its tenant’s invitees for their inability to use the property as intended. Interference with a property interest---a real property interest---should be remedied by injunctive relief. Law Offices of 4 Steven B. Piscr FrRsr AMENDED COMPLAINT FOR INIUNCTIVE RELIEF 11. The identities of those defendants sued herein as Does 1 through 10 are presently unknown to plaintiff, who sues such defendants pursuant to Code of Civil Procedure § 474. When plaintiff discovers their identities, plaintiff will seek leave of cOurt to amend this complaint. Plaintiff is informed and ”believes each fictitiously named defendant is responsible in \DOO\lO\CJ'l—l>-OD[\’>»-—a some manner for the infringement of plaintiffs rights or has provided defendant King with substantial assistance. 12. At all times herein mentioned, the defendants, and each of them, were the agents, servants and/or employees of each of the remaining defendants and in doing the things hereinafter set forth did so within the scope of their agency and/or employment. l3. Defendant King Plaza Center, LLC, is a limited liability company organized and existing under the laws of the State of California with its principal place of business in San Mateo County. It owns the property described in the agreement as the “KPP Parcel.” 14. DBP Investments is a California General Partnership with its principal place of business in San Mateo County. It is the owner of the property described in the agreement as the “DBP Parcel.” DBP’s parcel has one tenant, Classic Bowling Center. Classic has sixty lanes. It wwmwmwl—JHHv—‘HHHl—‘l—‘y—l serves as a center for the community, offering its services and facilities to many elderly people and youngsters. CH-BOJMHO©OO\TO\CHLCBMHO 15. The agreement which is the subject of this action was executed in San Mateo County and related to property in this county. It was executed by Jeffrey Litke and Mark Litke for King Plaza Partners. King Plaza Center LLC purchased the property from King Plaza Partners in 2007. Although the agreement was not recorded, King Plaza Center LLC was aware of it and aclmowledged, in writing, that it received the agreement before it acquired the property. The agreement is binding on the parties to this lawsuit. 16. The acts described in paragraphs 5 through 8 of this complaint constitute unreasonable interference with DBP’s rights under the easement. Unless this court permanently enjoins defendant King Plaza Center LLC, its tenants and subtenants and their concessionaires, 27 suppliers, patrons, customers, invitees, guests, employees and agents from acting in the manner 28 described in this complaint, DBP will suffer irreparable harm for which damages will not Law Oflices of 5 Steven B. Piser FIRST AMENDED COMPLAINT FOR lNJUNCTlVE RELIEF provide a remedy. WHEREFORE, plaintiff prays judgment as set forth below. SECOND CAUSE OF ACTION NUISANCE AND INTERFERENCE WITH PROPERTY RIGHTS (As AGAINST KING PLAZA CENTER, QUACH, LIEN, VUONG AND LAI) ©00\10\01-I>COL\DH 17. Plaintiff re-pleads 111] 1 through 4, 6, 10 through l2, l4 and 16, of the first amended complaint, as if fully set forth. 18. DBP is informed and believe and upon basis alleges that King Plaza Center, LLC is the lessor and Bua Quach, Sovan Lien, Dong Vuong, and Thanh Lai or their predecessors, are the lessees, to a lease agreement which has been amended on at least six occasions. Per the terms Of the lease and amendments, King has leased to Quach, Lien, Vuong and Lai approximately 32,359 square feet of space at 950 King Drive, #112 and #l 14, on which Quach, Lien, Vuong and Lai own and operate a general food supermarket known as the Manila Oriental Market. 19. Defendants, Quach, Lien, Vuong and Lai, and each of them, have wrongfully and knowingly hindered and obstructed DBP’s and its guests’, agents’ and licensees’ rights to enter, use and cross over a portion of the property constituting DBP’S easement property rights as described in Exhibit A, in the following ways: NMMMNMNMNl—‘I—‘HHHF—‘P—‘l—Jl—‘H a) They have permitted large vehicles to load and unload between the hours Of8100 am. to 7:00 pm. mVQGLwNHOOWQOG-hwwwo b) Large vehicles have been stored for more than 24 hours on the property. 0) Garbage has been allowed to accumulate on the property. d) Forklift, garbage receptacles, boxes, trash and other waste have taken over, and now occupy, space intended to be used for ingress and egress. Defendants’ conduct is continuing and varied; the conduct set forth in this paragraph is not meant to be exhaustive and DBP may seek to amend or supplement this complaint to assert additional acts as appropriate. 20. DBP is informed and believes and upon such basis alleges defendants Bua Quach, Sovan Lien, Dong Vuong and Thanh Lai are residents of California. Law Offices of 6 Steven B. Piser FIRST AMENDED COMPLAINT FOR lNJUNCTlVE RELIEF 21. By acting and failingto act King, and Quach, Lien, Vuong and Lai have created a condition that has harmed, obstructed and interfered with DBP’s beneficial use of the King Center parking lot. 22. DBP has not consented to defendants’ conduct. OOONGCfl-D-OJLQs—a 23. Defendants’ conduct is so unreasonable that it should be enjoined. Unless this court pemianently enjoins defendants Quach, Lien, Vuong and Lai, its subtenants and their concessionaires, suppliers, patrons, customers, invitees, guests, employees and agents from acting in the manner described in this complaint, DBP will suffer irreparable harm for which damages will not provide a remedy. )—-‘ O WI-EREFORE, plaintiff prays judgment as follows: ,.... D—‘ 1. An order permanently enjoining defendant King Plaza Center LLC, its i—A [0 tenants and subtenants and their concessionaires, suppliers, patrons, t—‘ OJ customers, invitees, guests, employees and agents from: |—‘ 4>~ a. Obstructing or impeding vehicular or pedestrian traffic upon or l—-‘ 01 across the parking areas, entrances, exits, driveways, walks or ,___. C7\ service drives located within the Common Area owned by King r——- \1 Plaza Center LLC; I—- 00 Preventing or impairing the others free use of the Common Area owned by King Plaza Center LLC or the free flow of vehicular or pedestrian ingress to and egress from DBP’s Parcel. An order permanently enjoining defendants Quach, Lien, Vuong and Lai, its tenants and subtenants and their concessionaires, suppliers, patrons, customers, invitees, guests, employees and agents from: a. Obstructing or impeding vehicular or pedestrian traffic upon or across the parking areas, entrances, exits, driveways, walks or service drives located within the Cormnon Area owned by King Plaza Center LLC; Preventing or impairing the others free use of the Common Area Law Offices of 7 Steven B. Piser FIRST AMENDED COMPLAINT FOR lNJUNCTIVE RELIEF owned by King Plaza Center LLC or the free flow of vehicular or pedestrian ingress to and egress from DBP’s Parcel. 3. An order requiring King Plaza Center LLC, its tenants and subtenants and their concessionaires, suppliers, patrons, customers, invitees, guests, kOOO‘QONO'l-D-OJIOI—t employees and agents to: a. Remove all signs or marking which place any restrictions on parking in the common area; b. Reserving any spaces in the common area except for spaces specifically designated for the use of emergency vehicles common area; 0. Maintain the common area so as to enable the use of the easement by DBP and prevent the obstruction of the parking in the common area. 4. For costs of suit; and i—‘l—JI—lr—‘v—Jl-‘l—‘l—‘t—‘P-l ©00\]O\Cfl-DCDIOHO For such other and further relief as the court deems proper. LAW OFFICES OF STEVEN B. PISER A Professional Corporation DATED: Octoberfi, 2016 By: fl fiEVEN B. PISER Attorney for Plaintiff/Cross-Defendant DBP INVESTMENTS, a California 21 General Partnership 2-2 23 24 25 26 27 28 Law Offices of 8 Steven B. Piser FlRST AMENDED COMPLAINT FOR [NJUNCTWE REUEF Exhibit ”A” .- mm m RECORDING REQUESTED BY, RECORDED MAIL To: ) ) ’ in mm mm NATIONAL Tm COMPANY ; 50 CALHORHIA STREET #2950 ) SAN FRANCISCO. CA. 9§111 ) ESCROW NO. 995052 a 3 ) ) x 8? n m: n' AFN? 091-475-150 901—17548!) 091475-190 RECIPROCAL BASEMENT AND OPERATION AW This Reciprocal Easement and Operation Agreement is entered into , to be effective on 1991, the date it is recorded in the official. records of San Mateo County, by and between DBP INVESTMENTS, a California General Partnership ("DBP") , consisting of. Richard A. Bocci, Debra L. Bocai, Mark L. Pender, Hairy V: Fender, Robert c. DeVincenzi, Steven Devincenzi and Janica DeVincenzi, and KING PLAZA PARTNERS, California general partnership ("ICPP") , consisting a of Litke Properties, Inc. , a California corporation and Mark Litke, as DBP and KPP W: trustee of the Mark Harlan Litke Trust. are the owners of that certain real property located in Daly city, San Mateo County, stete of California, more particularly described as Lots 3’; and B, as shown on that certain subdivision map (the "Map") , recorded in Book , at Page , Official fissures —1— of the San Katee County, state of California. Concurrently herewith, DBP and KP? have conveyed Parcel A, as shown on the Map, to DB? (the "DB?Parcel"), and Parcel B, as shown on the Map, to KPP (the "RP? Parcel"). The DBP Parcel and the KP? ParCel are sometimes referred to collectively as the "Shopping Center". DBP desire to grant to each other mutual and reciprocal and KP? easements over their respective parcels for purposes of providing a moon parking, ingress and egress to each others! parcel and utility service, and to set forth their agreement ‘with respect to the maintenance, repair and operation of certain improvements thereona The conveyances of Lot A to DB? and Lot B to KP? are subject to the terms ‘ and conditions of this Agreement. NOW, THEREFORE, for and in consideration a the mutual covenants contained herein and for other valuable consideration, receipt of which is hereby acknowledged, the parties hereto agree as follows: 1. meme. (a) The term “DB? Common Area" shall mean all public and common .. facilities erected on the DBP Parcel intended for common use, including, but not limited to, entrances, exits, driveways, access —..........~. roads, parking areas, sidewalks, service drives, directional signs, lighting facilities (excluding lighting attached to buildings constructed on the DBP Parcel), utility services, drainage facilities, landscaped areas (provided such landscaped areas are located inside, about or are adjacent to driveways, sidewalks or parking areas intended for common use), and other facilities and areas intended for common use, as the same may exist from time to time in or on the DBP Parcel, but not including any buildings constructed on the 332 Parcel and refuse receptacles located on the DB? Parcel intended for use solely _2_ by DBP and its tenants. Landscaping located within the DB? Pascal and not inside, about or are adjacent to drivei’ways, sidewalks or parking areas intended for common use shall not constitute part of the DE? Common Area, and shall he the sole responsibility of DBP, subject to paragraph 6. (b) The term "KP? Colman Area" shall mean all yublic and common facilities erected on the KPP Parcel intended for common use, including, but not limited to, entranossfl exits, driveways, access roads, parking areas, sidewalks, service i ives, directional signs, lighting facilities (excluding lighting attached to buildings constructed on the RP? Paréel other than: lighting attached to the dental building located on the KPP Parcel: specifically intended for illumination of the upper parking lot), utility services, drainage facilities, landscaped areas (provided such landscaped areas are located inside, about or are adjacent t? driveways, sidewalks or parking areas intended for common use), andjother facilities and areas intended for common use, as the same may exist from time to time in or on the KPP Parcel, but not including any bliildings constructed on the KPP Parcel and refuse receptacles located on the KPP Parcel intended for use solely by KPP and its tenants. Landscaping located within the RP? Parcel and not inside, about or aria adjacent to driveways, sidewalks or parking areas intended for commion use shall not constitute part of the KPP Common Area, and shall be the sole responsibility of l KPP, subject to paragraph 6. (c) The term "Permitted Users" shall mean DBP and KPP, their heirs, executors, administrators, assigns, and their partners, tenants, su