Preview
Ryan van Steenis (SBN 254542)
1 1601 S Shepherd Dr., #276
2 Houston, Texas 77019
314-749-2284
3 rjvansteenis@gmail.com
4 Attorney for Defendants Dave Bragg, and
5 Silicon Valley Real Ventures, LLC
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
7
FOR THE COUNTY OF SAN MATEO
8
9
Robert Arntsen; Mary Lee; Arntsen Family ) Case No.: 22-CIV-01148
10 Partnership, LP; and Brian Christopher Dunn )
Custodianship, ) NOTICE OF MOTION TO STRIKE AND
11 ) DEFENDANTS DAVID BRAGG AND
Plaintiffs, ) SILICON VALLEY REAL VENTURES
12 ) LLC’S MOTION TO STRIKE
vs. ) PLAINTIFFS’ FIRST AMENDED
13 ) COMPLAINT
David M. Bragg; Kurtis Stuart Kludt; Silicon ) [Filed concurrently Memorandum of Points and
14 Valley Real Ventures LLC; SVRV 385 Moore, ) Authorities, Declaration of Ryan van Steenis,
LLC; SVRV 387 Moore, LLC; Gregory J. Davis; ) and Request for Judicial Notice]
15 Kevin Wolfe; Jason Justesen; Paramont )
Woodside, LLC; and Paramont Capital, LLC; ) Judge: Hon. Robert D. Foiles
16 ) Date: August 4, 2023
) Time: 9:00 a.m.
17 ) Dept: 21
Defendants. ) Courtroom: 2J
18 )
)
19 )
)
20
21 TO THE COURT, PLAINTIFFS, AND THEIR ATTORNEYS OF RECORD:
22 NOTICE IS HEREBY PROVIDED that on August 4, 2023, at 9:00 a.m. or as soon
23 thereafter as the matter may be heard in Department 21 of the above-entitled court, located at 400
24 County Center, Redwood City, California 94063, Defendants David Bragg and Silicon Valley Real
25 Ventures LLC (collectively “Defendants”), hereby move this Court for an order granting their
26 Motion to Strike certain of Plaintiffs’ allegations as identified in these papers pursuant to California
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Defendant Bragg and SVRV’s for Notice of Motion, Motion to Strike, and Memorandum of Points & Authorities
1 Rules of Court Rule 3.1322 and Code of Civil Procedure sections 435, 436, and 437, and the
2 California Evidence Code sections 452 and 453.
3 Defendants request that the following portions of the First Amended Complaint (“FAC”) be
4 stricken, as follows:
5 1. FAC ¶22, last clause: “… in carrying out the fraud and other misconduct complained
6 of herein” (improper matter inserted in a description of defendant).
7 2. FAC ¶24, last clause: “…, who routinely siphoned money from SVRV’s accounts to
8 pay themselves and their families for unauthorized expenses that were never properly accounted
9 for” (improper matter inserted in a description of defendant).
10 3. FAC ¶54: “… the Effective Operating Agreements required ‘unanimous approval of
11 the Members in a consent in writing’ for:
12 • ‘the admission of a new Member or a change in any Member’s Membership
13 Interest, Ownership Interest, Percentage Interest, or Voting Interest;
14 • ‘[a]ny other act outside the ordinary course of the Company’s activities’ and
15 • ‘[t]he amendment of th[ese] Agreement[s]’”
16 (false assertion – the language quoted and relied upon by Plaintiffs is not found in the Effective
17 Operating Agreement; see, Request for Judicial Notice, Exhibit 1, Article III, ¶2 at p. 17 of Exhibit
18 C to Arnsten’s Bankruptcy Declaration: “Passive Members shall not be involved in any
19 management decisions affecting the Company or Property, and shall have no voting rights, but may
20 provide input to the Active Members from time to time about any issues relating to the Project;” see
21 also, id at ¶3: “Additional Members may be admitted with the unanimous approval of all Active
22 Members”).1
23 4. FAC ¶70, 71, 72, and 73, in their entirety as irrelevant to any cause of action asserted
24 by Plaintiffs.
25
26
27 1
Plaintiffs allege SVRV was the sole Active Member and admit they were Passive Members. See, FAC ¶55 at 18:6-8:
28 “Bob and the Arntsen Partnership . . . were Passive Members … . SVRV was the Active Member”).
Defendant Bragg and SVRV’s for Notice of Motion, Motion to Strike, and Memorandum of Points & Authorities
1 5. FAC ¶80: “Plaintiffs never would have consented to such wholesale amendments to
2 the Effective Operating Agreements …” (irrelevant; the Effective Operating Agreement did not
3 authorize Passive Members to do so and any amendment under its terms only had to be in writing
4 and signed by members; consent was not needed from Passive Members. See, RJN, Exh. 1, Art. III,
5 ¶ 2, at p. 17 of the exhibit; see also, id. at Art. XII, ¶7, at p. 34 of the exhibit: “Amendments. All
6 amendments to this Agreement will be in writing and signed by all of the Members”).
7 6. FAC ¶83, entire paragraph (false and improper allegation; the Effective Operating
8 Agreement’s terms explicitly authorized SVRV as the sole Active Member to add Paramont as a
9 Member to the Moore Road LLCs; see, RJN, Exh. 1, Art. III, ¶3, at p. 17 of the exhibit).
10 7. FAC ¶101, entire paragraph (Crevelt lawsuit and its resolution is irrelevant to any
11 cause of action asserted by Plaintiffs).
12 8. FAC ¶102, entire paragraph (irrelevant to any cause of action asserted by Plaintiffs).
13 9. FAC ¶117: “Bragg did not disclose that he was service as Ms. Marchbank’s co-
14 broker, which entitled him to 50% of the seller’s commission” (false allegation and irrelevant – the
15 Effective Operating Agreement gave Bragg the exclusive right to be the listing/selling agent for the
16 Moore Road Properties; see, RJN, Exh. 1, Art. IV, ¶7, at p. 23 of the exhibit (last sentence): “It is
17 specifically agreed that David Bragg will be the listing agent for the Property and any sale thereof,
18 pursuant to a standard listing agreement”).
19 10. FAC ¶124, last clause: “[T]he only reason for making Bragg a co-broker was to
20 enable him receive (sic) additional remuneration in the form of a $75,000 broker’s fee” (false
21 allegation and irrelevant – the Effective Operating Agreement gave Bragg the exclusive right to be
22 the listing/selling agent for the Moore Road Properties; see, RJN, Exh. 1, Art. IV, ¶7, at p. 23 of the
23 exhibit (last sentence): “It is specifically agreed that David Bragg will be the listing agent for the
24 Property and any sale thereof, pursuant to a standard listing agreement”).
25 11. FAC ¶138, second sentence: “As of the date of sale for 387 Moore Road, its fair
26 market value was estimated at $9,137,038” (irrelevant to any cause of action asserted by Plaintiffs;
27 and improper matter using a website’s estimate of value instead of an appraisal on the property).
28
Defendant Bragg and SVRV’s for Notice of Motion, Motion to Strike, and Memorandum of Points & Authorities
1 12. FAC ¶138, third sentence: “As of the date of sale for 385 Moore Road, its fair
2 market value was estimated at $7,509,490 (irrelevant to any cause of action asserted by Plaintiffs;
3 and improper matter using a website’s estimate of value instead of an appraisal on the property).
4 13. FAC ¶141, 142, and 143, entire paragraphs (improper and irrelevant allegations to
5 any cause of action asserted by Plaintiffs).
6 14. FAC ¶153, last sentence: “… yet made a $75,000 broker’s fee” (improper matter
7 asserted as the broker’s fee was explicitly authorized by the Effective Operating Agreement; RJN,
8 Exh. 1, Art. IV, ¶7, at p. 23 of the exhibit (last sentence): “It is specifically agreed that David Bragg
9 will be the listing agent for the Property and any sale thereof, pursuant to a standard listing
10 agreement”).
11 15. FAC ¶162, 163, and 164, entire paragraphs (improper matter and irrelevant
12 allegations to any cause of action asserted by Plaintiffs as post-litigation actions have no bearing on
13 Plaintiffs’ claims).
14 Plaintiffs punitive damage allegations:
15 16. FAC ¶174: “… Bragg’s, [and] SVRV’s … conduct was willful, outrageous,
16 malicious, oppressive, and fraudulent. In addition to compensatory damages, punitive damages are
17 necessary to punish … Bragg [and] SVRV … for this conduct and to discourage similar conduct in
18 the future.”
19 17. FAC ¶182: “… Bragg’s, [and] SVRV’s conduct was willful, outrageous, malicious,
20 oppressive, and fraudulent. In addition to compensatory damages, punitive damages are necessary
21 to punish … Bragg [and] SVRV … for this conduct and to discourage similar conduct in the
22 future.”
23 18. FAC ¶193: “… Bragg’s, [and] SVRV’s … conduct was willful, outrageous,
24 malicious, oppressive, and fraudulent. In addition to compensatory damages, punitive damages are
25 necessary to punish … Bragg [and] SVRV … for this conduct and to discourage similar conduct in
26 the future.”
27
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Defendant Bragg and SVRV’s for Notice of Motion, Motion to Strike, and Memorandum of Points & Authorities
1 19. FAC ¶200: “… Bragg’s, [and] SVRV’s conduct was willful, outrageous, malicious,
2 oppressive, and fraudulent. In addition to compensatory damages, punitive damages are necessary
3 to punish … Bragg [and] SVRV … for this conduct and to discourage similar conduct in the
4 future.”
5 20. FAC ¶209, entire paragraph.
6 21. FAC ¶220: “… Bragg’s, [and] SVRV’s … conduct was willful, outrageous,
7 malicious, oppressive, and fraudulent. In addition to compensatory damages, punitive damages are
8 necessary to punish Defendants for this conduct and to discourage similar conduct in the future.”
9 22. FAC ¶230, entire paragraph.
10 23. FAC ¶236, entire paragraph.
11 24. FAC ¶245, entire paragraph.
12 25. FAC ¶252, entire paragraph.
13 26. FAC ¶259, entire paragraph.
14 27. FAC ¶265, entire paragraph.
15 28. Request for relief, paragraph C: “Punitive damages.”
16 This motion to strike is based on this notice, the memorandum of points and authorities, the
17 declaration of Ryan van Steenis regarding the CCP §435.5’s meet and confer requirements, the
18 request for judicial notice, the operative pleadings on record in this matter, and any oral
19 documentary evidence presented to the court as the time of the hearing.
20
21 DATED: June 9, 2023
22 Ryan van Steenis
Attorney for Defendant Bragg and
23 Silicon Valley Real Ventures, LLC
24
25
26
27
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Defendant Bragg and SVRV’s for Notice of Motion, Motion to Strike, and Memorandum of Points & Authorities
1
2
PROOF OF SERVICE
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I am over the age of 18 and not a party to this action. I hereby certify that on June 9, 2023, I
4
served the following document(s) on the parties in the above-entitled action:
5
DAVID BRAGG AND SILICON VALLEY REAL VENTURES LLC’S NOTICE OF
6
MOTION AND MOTION TO STRIKE PLAINTIFFS’ FIRST AMENDED
7
COMPLAINT
8
Via Email: I emailed the document(s) referenced above to the following persons at the following
9
email addresses:
10
Collin Vierra
11
cvierra@eimerstahl.com
12 Counsel for Plaintiffs
13 Jessica Chong
jchong@spencerfane.com
14 Brian Zimmerman
15 bzimmerman@spencerfane.com
Nicolas Reisch
16 nreisch@spencerfane.com
Ernesto Aldover
17 ernesto@arealestatelawfirm.com
Counsel for Defendants Gregory J. Davis, Kevin Wolfe, Jason Justesen, Paramont
18 Woodside, LLC, Paramont Capital, LLC, SVRV 385 Moore, LLC, and SVRV 387 Moore,
19 LLC
I declare under penalty of perjury under the laws of the State of California that the foregoing is a
20
true and correct statement.
21
Dated: June 9, 2023
22
23 Ryan van Steenis
Attorney for Defendant Bragg and
Silicon Valley Real Ventures, LLC
24
25
26
27
28
Defendant Bragg and SVRV’s for Notice of Motion, Motion to Strike, and Memorandum of Points & Authorities
Preview
Ryan van Steenis (SBN 254542) 1 1601 S Shepherd Dr., #276 2 Houston, Texas 77019 314-749-2284 3 rjvansteenis@gmail.com 4 Attorney for Defendants Dave Bragg, and 5 Silicon Valley Real Ventures, LLC 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 FOR THE COUNTY OF SAN MATEO 8 9 Robert Arntsen; Mary Lee; Arntsen Family ) Case No.: 22-CIV-01148 10 Partnership, LP; and Brian Christopher Dunn ) Custodianship, ) NOTICE OF MOTION TO STRIKE AND 11 ) DEFENDANTS DAVID BRAGG AND Plaintiffs, ) SILICON VALLEY REAL VENTURES 12 ) LLC’S MOTION TO STRIKE vs. ) PLAINTIFFS’ FIRST AMENDED 13 ) COMPLAINT David M. Bragg; Kurtis Stuart Kludt; Silicon ) [Filed concurrently Memorandum of Points and 14 Valley Real Ventures LLC; SVRV 385 Moore, ) Authorities, Declaration of Ryan van Steenis, LLC; SVRV 387 Moore, LLC; Gregory J. Davis; ) and Request for Judicial Notice] 15 Kevin Wolfe; Jason Justesen; Paramont ) Woodside, LLC; and Paramont Capital, LLC; ) Judge: Hon. Robert D. Foiles 16 ) Date: August 4, 2023 ) Time: 9:00 a.m. 17 ) Dept: 21 Defendants. ) Courtroom: 2J 18 ) ) 19 ) ) 20 21 TO THE COURT, PLAINTIFFS, AND THEIR ATTORNEYS OF RECORD: 22 NOTICE IS HEREBY PROVIDED that on August 4, 2023, at 9:00 a.m. or as soon 23 thereafter as the matter may be heard in Department 21 of the above-entitled court, located at 400 24 County Center, Redwood City, California 94063, Defendants David Bragg and Silicon Valley Real 25 Ventures LLC (collectively “Defendants”), hereby move this Court for an order granting their 26 Motion to Strike certain of Plaintiffs’ allegations as identified in these papers pursuant to California 27 28 Defendant Bragg and SVRV’s for Notice of Motion, Motion to Strike, and Memorandum of Points & Authorities 1 Rules of Court Rule 3.1322 and Code of Civil Procedure sections 435, 436, and 437, and the 2 California Evidence Code sections 452 and 453. 3 Defendants request that the following portions of the First Amended Complaint (“FAC”) be 4 stricken, as follows: 5 1. FAC ¶22, last clause: “… in carrying out the fraud and other misconduct complained 6 of herein” (improper matter inserted in a description of defendant). 7 2. FAC ¶24, last clause: “…, who routinely siphoned money from SVRV’s accounts to 8 pay themselves and their families for unauthorized expenses that were never properly accounted 9 for” (improper matter inserted in a description of defendant). 10 3. FAC ¶54: “… the Effective Operating Agreements required ‘unanimous approval of 11 the Members in a consent in writing’ for: 12 • ‘the admission of a new Member or a change in any Member’s Membership 13 Interest, Ownership Interest, Percentage Interest, or Voting Interest; 14 • ‘[a]ny other act outside the ordinary course of the Company’s activities’ and 15 • ‘[t]he amendment of th[ese] Agreement[s]’” 16 (false assertion – the language quoted and relied upon by Plaintiffs is not found in the Effective 17 Operating Agreement; see, Request for Judicial Notice, Exhibit 1, Article III, ¶2 at p. 17 of Exhibit 18 C to Arnsten’s Bankruptcy Declaration: “Passive Members shall not be involved in any 19 management decisions affecting the Company or Property, and shall have no voting rights, but may 20 provide input to the Active Members from time to time about any issues relating to the Project;” see 21 also, id at ¶3: “Additional Members may be admitted with the unanimous approval of all Active 22 Members”).1 23 4. FAC ¶70, 71, 72, and 73, in their entirety as irrelevant to any cause of action asserted 24 by Plaintiffs. 25 26 27 1 Plaintiffs allege SVRV was the sole Active Member and admit they were Passive Members. See, FAC ¶55 at 18:6-8: 28 “Bob and the Arntsen Partnership . . . were Passive Members … . SVRV was the Active Member”). Defendant Bragg and SVRV’s for Notice of Motion, Motion to Strike, and Memorandum of Points & Authorities 1 5. FAC ¶80: “Plaintiffs never would have consented to such wholesale amendments to 2 the Effective Operating Agreements …” (irrelevant; the Effective Operating Agreement did not 3 authorize Passive Members to do so and any amendment under its terms only had to be in writing 4 and signed by members; consent was not needed from Passive Members. See, RJN, Exh. 1, Art. III, 5 ¶ 2, at p. 17 of the exhibit; see also, id. at Art. XII, ¶7, at p. 34 of the exhibit: “Amendments. All 6 amendments to this Agreement will be in writing and signed by all of the Members”). 7 6. FAC ¶83, entire paragraph (false and improper allegation; the Effective Operating 8 Agreement’s terms explicitly authorized SVRV as the sole Active Member to add Paramont as a 9 Member to the Moore Road LLCs; see, RJN, Exh. 1, Art. III, ¶3, at p. 17 of the exhibit). 10 7. FAC ¶101, entire paragraph (Crevelt lawsuit and its resolution is irrelevant to any 11 cause of action asserted by Plaintiffs). 12 8. FAC ¶102, entire paragraph (irrelevant to any cause of action asserted by Plaintiffs). 13 9. FAC ¶117: “Bragg did not disclose that he was service as Ms. Marchbank’s co- 14 broker, which entitled him to 50% of the seller’s commission” (false allegation and irrelevant – the 15 Effective Operating Agreement gave Bragg the exclusive right to be the listing/selling agent for the 16 Moore Road Properties; see, RJN, Exh. 1, Art. IV, ¶7, at p. 23 of the exhibit (last sentence): “It is 17 specifically agreed that David Bragg will be the listing agent for the Property and any sale thereof, 18 pursuant to a standard listing agreement”). 19 10. FAC ¶124, last clause: “[T]he only reason for making Bragg a co-broker was to 20 enable him receive (sic) additional remuneration in the form of a $75,000 broker’s fee” (false 21 allegation and irrelevant – the Effective Operating Agreement gave Bragg the exclusive right to be 22 the listing/selling agent for the Moore Road Properties; see, RJN, Exh. 1, Art. IV, ¶7, at p. 23 of the 23 exhibit (last sentence): “It is specifically agreed that David Bragg will be the listing agent for the 24 Property and any sale thereof, pursuant to a standard listing agreement”). 25 11. FAC ¶138, second sentence: “As of the date of sale for 387 Moore Road, its fair 26 market value was estimated at $9,137,038” (irrelevant to any cause of action asserted by Plaintiffs; 27 and improper matter using a website’s estimate of value instead of an appraisal on the property). 28 Defendant Bragg and SVRV’s for Notice of Motion, Motion to Strike, and Memorandum of Points & Authorities 1 12. FAC ¶138, third sentence: “As of the date of sale for 385 Moore Road, its fair 2 market value was estimated at $7,509,490 (irrelevant to any cause of action asserted by Plaintiffs; 3 and improper matter using a website’s estimate of value instead of an appraisal on the property). 4 13. FAC ¶141, 142, and 143, entire paragraphs (improper and irrelevant allegations to 5 any cause of action asserted by Plaintiffs). 6 14. FAC ¶153, last sentence: “… yet made a $75,000 broker’s fee” (improper matter 7 asserted as the broker’s fee was explicitly authorized by the Effective Operating Agreement; RJN, 8 Exh. 1, Art. IV, ¶7, at p. 23 of the exhibit (last sentence): “It is specifically agreed that David Bragg 9 will be the listing agent for the Property and any sale thereof, pursuant to a standard listing 10 agreement”). 11 15. FAC ¶162, 163, and 164, entire paragraphs (improper matter and irrelevant 12 allegations to any cause of action asserted by Plaintiffs as post-litigation actions have no bearing on 13 Plaintiffs’ claims). 14 Plaintiffs punitive damage allegations: 15 16. FAC ¶174: “… Bragg’s, [and] SVRV’s … conduct was willful, outrageous, 16 malicious, oppressive, and fraudulent. In addition to compensatory damages, punitive damages are 17 necessary to punish … Bragg [and] SVRV … for this conduct and to discourage similar conduct in 18 the future.” 19 17. FAC ¶182: “… Bragg’s, [and] SVRV’s conduct was willful, outrageous, malicious, 20 oppressive, and fraudulent. In addition to compensatory damages, punitive damages are necessary 21 to punish … Bragg [and] SVRV … for this conduct and to discourage similar conduct in the 22 future.” 23 18. FAC ¶193: “… Bragg’s, [and] SVRV’s … conduct was willful, outrageous, 24 malicious, oppressive, and fraudulent. In addition to compensatory damages, punitive damages are 25 necessary to punish … Bragg [and] SVRV … for this conduct and to discourage similar conduct in 26 the future.” 27 28 Defendant Bragg and SVRV’s for Notice of Motion, Motion to Strike, and Memorandum of Points & Authorities 1 19. FAC ¶200: “… Bragg’s, [and] SVRV’s conduct was willful, outrageous, malicious, 2 oppressive, and fraudulent. In addition to compensatory damages, punitive damages are necessary 3 to punish … Bragg [and] SVRV … for this conduct and to discourage similar conduct in the 4 future.” 5 20. FAC ¶209, entire paragraph. 6 21. FAC ¶220: “… Bragg’s, [and] SVRV’s … conduct was willful, outrageous, 7 malicious, oppressive, and fraudulent. In addition to compensatory damages, punitive damages are 8 necessary to punish Defendants for this conduct and to discourage similar conduct in the future.” 9 22. FAC ¶230, entire paragraph. 10 23. FAC ¶236, entire paragraph. 11 24. FAC ¶245, entire paragraph. 12 25. FAC ¶252, entire paragraph. 13 26. FAC ¶259, entire paragraph. 14 27. FAC ¶265, entire paragraph. 15 28. Request for relief, paragraph C: “Punitive damages.” 16 This motion to strike is based on this notice, the memorandum of points and authorities, the 17 declaration of Ryan van Steenis regarding the CCP §435.5’s meet and confer requirements, the 18 request for judicial notice, the operative pleadings on record in this matter, and any oral 19 documentary evidence presented to the court as the time of the hearing. 20 21 DATED: June 9, 2023 22 Ryan van Steenis Attorney for Defendant Bragg and 23 Silicon Valley Real Ventures, LLC 24 25 26 27 28 Defendant Bragg and SVRV’s for Notice of Motion, Motion to Strike, and Memorandum of Points & Authorities 1 2 PROOF OF SERVICE 3 I am over the age of 18 and not a party to this action. I hereby certify that on June 9, 2023, I 4 served the following document(s) on the parties in the above-entitled action: 5 DAVID BRAGG AND SILICON VALLEY REAL VENTURES LLC’S NOTICE OF 6 MOTION AND MOTION TO STRIKE PLAINTIFFS’ FIRST AMENDED 7 COMPLAINT 8 Via Email: I emailed the document(s) referenced above to the following persons at the following 9 email addresses: 10 Collin Vierra 11 cvierra@eimerstahl.com 12 Counsel for Plaintiffs 13 Jessica Chong jchong@spencerfane.com 14 Brian Zimmerman 15 bzimmerman@spencerfane.com Nicolas Reisch 16 nreisch@spencerfane.com Ernesto Aldover 17 ernesto@arealestatelawfirm.com Counsel for Defendants Gregory J. Davis, Kevin Wolfe, Jason Justesen, Paramont 18 Woodside, LLC, Paramont Capital, LLC, SVRV 385 Moore, LLC, and SVRV 387 Moore, 19 LLC I declare under penalty of perjury under the laws of the State of California that the foregoing is a 20 true and correct statement. 21 Dated: June 9, 2023 22 23 Ryan van Steenis Attorney for Defendant Bragg and Silicon Valley Real Ventures, LLC 24 25 26 27 28 Defendant Bragg and SVRV’s for Notice of Motion, Motion to Strike, and Memorandum of Points & Authorities