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1 AKAY LAW
DOUGLAS N. AKAY, SBN 131011
2 Email: dnakay@akaylaw.com
ELSA BERRY, SBN 262363
3 Email: eberry@akaylaw.com
DAVID MANCHESTER, SBN 331424
4 Email: dmanchester@akaylaw.com
90 New Montgomery Street, Ninth Floor
5 San Francisco, California 94105
Telephone: (415) 764-1999
6 Facsimile: (415) 764-1994
7 Attorneys for Plaintiffs
Bhanu Prakash and Mamatha Prakash, individuals.
8
9
SUPERIOR COURT OF CALIFORNIA
10
COUNTY OF ALAMEDA, UNLIMITED JURISDICTION
11
12
BHANU PRAKASH, an individual; and Case No.
13 MAMATHA PRAKASH, an individual,
COMPLAINT FOR REFORMATION OF
14 Plaintiffs, CONTRACT AND SPECIFIC
PERFORMANCE; AND DAMAGES
15 v.
JURY TRIAL DEMANDED
16 VARUNKANT VASHISHTHA, an individual;
MEGHNA TYAGI, an individual; and DOES 1 Request to Stay This Action Pending
17 through 100, inclusive, Mediation and/or Arbitration
18 Defendants.
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20
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22 COMES NOW, Plaintiffs Bhanu Prakash and Mamatha Prakash, who allege as follows:
23 STATEMENT OF THE CASE
24 This lawsuit is an action over title to real property located at 37658 Canterbury Street, City
25 of Fremont, County of Alameda (the “Property”), because Plaintiffs’ accepted Offer to Purchase the
26 Property is still in legal effect, and Plaintiffs were fraudulently or mistakenly induced to make a
27 purchase offer on the Property because of Defendants’ false or mistaken description of the
28 neighborhood within which the Property is located. Plaintiffs seek to have the Court reform the
1 Contract price to $1,500,000.00, which is reflective of the actual neighborhood that the Property is
2 located, and its appraised value based upon its actual location, and order that Defendants convey the
3 Property at the reformed price less any offsets to which Plaintiffs are entitled, or, alternatively,
4 Plaintiffs seek to terminate their purchase of the Property based upon their timely exercise of
5 appraisal contingency, where in good faith, the Property did not appraise out consistent with
6 Plaintiffs’ expectations, and Plaintiffs want to be refunded back their entire earnest money deposit
7 plus any actual, special, and consequential damages they have suffered due to Defendants’ fraud or
8 mistake. Until the Property is conveyed to Plaintiffs at the reformed appraised contract price, or until
9 the Plaintiffs’ purchase contract is properly terminated and their earnest monies are returned, title to
10 the Property is in doubt. Plaintiffs also seek to stay this action pending the Purchase Contract’s
11 requirement of mediation and aribitration of the Parties’ dispute.
12 GENERAL ALLEGATIONS
13 Parties
14 1. Plaintiff BHANU PRAKASH (hereinafter referred to as one of the “Plaintiffs”) is an
15 individual, residing in Santa Clara county.
16 2. Plaintiff MAMATHA PRAKASH (hereinafter referred to as one of the “Plaintiffs”)
17 is an individual, residing in Santa Clara county. The Plaintiffs are married.
18 3. Defendant VARUNKANT VASHISHTHA (hereinafter referred to as one of the
19 “Defendants”) is an individual, residing in San Ramon, Contra Costa county.
20 4. Defendant MEGHNA TYAGI (hereinafter referred to as one of the “Defendants”) is
21 an individual, residing in San Ramon, Contra Costa county. Plaintiffs are informed and believe that
22 Defendants are married.
23 5. Plaintiffs are ignorant of the true names of DOES 1 through 100 (referred to herein
24 as “Defendant DOES”), inclusive, and therefore sues these defendants by such fictitious names.
25 Plaintiffs are informed and believe and, thereon, allege that each of these fictitiously named
26 defendants is legally responsible in some manner for Plaintiffs’ injuries and damages as alleged in
27 this pleading, or hold some interest or title in the real property described infra.
28 6. Plaintiffs are informed and believe and, thereon, allege that at all times herein
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COMPLAINT FOR DAMAGES
1 mentioned, each of the Defendants was acting as the agent, servant, employee, partner, joint
2 tortfeasor, alter ego and/or enjoyed some vicarious liability relationship with each of the other
3 Defendants, and in doing the things hereinafter alleged, was acting within the course and scope of
4 such agency, permission, employment, partnership, joint venture and/or other business relationship.
5 THE REAL PROPERTY
6 7. The real property that is the subject of this Complaint is located at 37658 Canterbury
7 Street, Fremont, 94536, County of Alameda, APN 501-1507-104 (the “Property”). The Property is
8 currently owned by the Defendants
9 VENUE
10 8. Venue is proper in Alameda County because this action involves the right and title to
11 Property that is located in Alameda County.
12 STATEMENT OF FACTS
13 9. Plaintiffs saw online advertisements posted by the Defendants, and each of them, for
14 the sale of the Property, the Defendants’ former residence. The online advertisements stated that the
15 Property was “located in the desirable Parkmont area of Fremont”.
16 10. Based upon the Defendants’ representation on May 2, 2023, the Plaintiff offered to
17 purchase the Property for $1,600,000.00 using a California Association of Realtors’s (“CAR”)
18 California Residential Purchase Agreement and Joint Escrow Instructions (C.A.R. Form RPA,
19 Revised 12/22) form. Due to the “hot” real estate market, and due to Plaintiffs’ desire to purchase a
20 home for themselves in a desirable area of Fremont, Plaintiffs waived all contingencies except for
21 the appraisal contingency, and offered to close escrow within 30 days of the Defendants’ acceptance
22 of Plaintiffs’ offer.
23 11. Defendants countered Plaintiffs’ purchase offer with a proposed purchase price of
24 $1,650,000.00, which the Plaintiffs accepted on May 4, 2023 (the “Contract”). Once the Plaintiffs
25 and the Defendants were in contract, Plaintiffs deposited $48,000.00 as an earnest money deposit
26 into the Defendants’ “Preferred Escrow” company, Fidelity National Title, Escrow Number FAMC-
27 0352300187 (“Escrow”) pursuant to the Contract’s terms. Plaintiffs’ $48,000.00 earnest money
28 deposit sits in Escrow at the time of the filing of this Complaint.
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COMPLAINT FOR DAMAGES
1 12. Plaintiffs then discovered that the Property was not located in “the desirable
2 Parkmont area of Fremont” but instead in a much less desirable area of Fremont called Centerville.
3 Centerville is denser neighborhood whose property values are generally lower that the Parkmont
4 area.
5 13. Pursuant to the Contract’s appraisal contingency, Plaintiffs obtained four appraisals
6 and three put the value of the Property at much less than the Contract price. The appraisal that came
7 in at the Contract price used the comparables that were out of date, were not relevant, and were not
8 located in the Centerville area, aside from one home with much more square footage than the
9 Property. In fact, the appraiser chose to ignore a comparable property within the Centerville area
10 with the exact same floor plan that sold just a few months prior to the date of the appraisal. The
11 Plaintiffs were alarmed that the Property was not as advertised in the Parkmont area, and the
12 appraisals indicated that the Property was worth much less than the Contract price.
13 14. On May 18, 2023, within the time specified in the Contract, the Plaintiffs executed a
14 Cancellation of Contract, Dispostion of Deposit and Cancellation of Escrow (CAR From CC,
15 Revised 12,22) (“Cancellation of Contract”) based upon their good faith exercise of the Appraisal
16 Contingency in paragraph L(2) 8B of the [Contract], and delivered it to the Defendants. This
17 document canceled the contract and requested that the Defendants agree to cancel escrow and release
18 the $48,000.00 earnest money deposit to Plaintiffs. Defendants refused to agree to cancel escrow on
19 Plaintiffs’ terms.
20 15. Refusing to accept Plaintiff’s Cancellation of Contract, and with the Contract still in
21 effect, on May 22, 2023, Defendants issued to Plaintiffs a Notice of Buyer to Perform (“Notice to
22 Perform”), asking, in effect, that the Plaintiffs remove all contingencies and perform pursuant to the
23 Contract within two days. Plaintiffs, who already Cancelled the Contract by their lawful exercise of
24 a failed contingency, refused to perform pursuant to Defendants’ new terms of the contract.
25 16. Defendants instead offered their own version of the Cancellation of Contract, which
26 called for cancelling the contract and escrow and release the earnest money deposit which was to be
27 increased by Plaintiffs to $49,500.00 to Defendants. Plaintiffs refused to agree to cancel escrow on
28 Defendants’ terms.
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COMPLAINT FOR DAMAGES
1 17. With the parties at a standstill, and with the Contract still in effect, Plaintiffs are
2 informed and believe, and, thereon allege that Defendants continue to have the Property on the
3 market. Again, and apparently unrepentant, Defendants continue to falsely advertise the Property
4 being in “desirable area of Parkmont”. This time, however, Defendants have chosen a different
5 escrow holder as their “Preferred Escrow” company.
6 DISPUTE RESOLUTION UNDER THE CONTRACT
7 18. Under the Section 30.A of the Contract, “Parties agree to mediate any dispute or
8 claim arising between them out of this Agreement, or any resulting transaction, before resorting to
9 arbitration or court action.” Although Plaintiffs requested mediation pursuant to this clause,
10 Defendants have delayed the start of mediation and/or the selection of a mediator or mediation
11 service. If a party refuses mediation, then that party forfeits any entitlement to recovery of attorney
12 fees.
13 19. Under the Section 30.B of the Contract the obligation to mediate does not preclude
14 the right of any party to preserve its rights under Section 31.C, in which the party filing the action
15 does so “enable the recording of a notice of pending action,”, which is precisely the purpose why
16 Plaintiffs are filing this action herein.
17 20. Furthermore, pursuant to Section 31, et seq. of the Contract, both Plaintiffs and
18 Defendants have agreed to arbitrate this dispute, and the Plaintiffs by filing this action may seek to
19 compel arbitration of the dispute should the Defendants fail to participate in arbitration should the
20 mediation, if it occurs, fail to resolve the dispute. In this action, Plaintiffs seek to have the Court stay
21 this action pending the completion of mediation and/or arbitration.
22 PLAINTIFFS CONTINUE TO SUFFER DAMAGES
23 21. During the entire time the Defendants have been in Contract with the Plaintiffs, the
24 Defendants continued to market the Property, and the Defendants have since held multiple open
25 houses. Plaintiffs, meanwhile, hands are being tied because they consider the Contract to be in effect,
26 and they cannot re-enter the home purchasing market until there is a solution, whether by joint
27 agreement in mediation, or by an arbitrator’s decision. Until, there is a resolution of the matter, the
28 Plaintiffs continue to suffer damages.
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COMPLAINT FOR DAMAGES
1 FIRST CAUSE OF ACTION
2 Specific Performance Based On Reformation of Contract
3 (Against all Defendants, and Certain of DOES 1-100)
4 22. Plaintiffs incorporate by reference as though set forth in full herein each and every
5 allegation contained in paragraphs 1 through 32, inclusive.
6 23. Defendants, through their fraud or mistake, falsely advertised the Property as being
7 in the “desirable Parkmont area” when, in fact, it was not.
8 24. Plaintiffs seek to reform the Contract, pursuant to Civil Code section 3399, to reflect
9 the true intention of the parties, in that, Plaintiffs are willing to pay the lower price for the Property
10 that is indicative of the Centerville area of Fremont, and not pay the higher price for the Property
11 had it been located in the Parkmont area of Fremont. The Plaintiffs’ appraisals indicate that the
12 Property should be priced at $1,500,000.00, instead of $1,650,000.00. The Plaintiffs seek the Court’s
13 determination that the Contract price should be what it would had the Defendants accurately
14 identified in which Fremont neighborhood the Property was actually located.
15 25. Plaintiffs seek specific performance for the Defendants to sell the Property to the
16 Plaintiffs at the reformed price of $1,500,000.00, and the Plaintiffs are ready, willing and able to
17 purchase the Property at that price.
18 26. As a direct, proximate, and foreseeable consequence of Defendants’ fraud or mistake
19 as alleged in this Cause of Action, Plaintiffs have been generally, specially, and consequentially
20 damaged in the amount to be established according to proof at trial.
21 27. Plaintiffs as prevailing party to this Cause of Action are entitled to their reasonable
22 attorneys fees and costs, pursuant to the Contract.
23 WHEREFORE, Plaintiffs pray for judgment against Defendants, and certain of Defendant
24 DOES 1 through 100, jointly and severally, as set forth hereinbelow.
25 SECOND CAUSE OF ACTION
26 Breach of Contract
27 (Against all Defendants, and Certain of DOES 1-100)
28 28. Plaintiffs incorporate by reference as though set forth in full herein each and every
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COMPLAINT FOR DAMAGES
1 allegation contained in paragraphs 1 through 32, inclusive.
2 29. Plaintiffs properly exercised their right to cancel the Contract and escrow because
3 they timely gave notice to Defendants that Plaintiffs were cancelling the Contract because of their
4 good faith exercise of the appraisal contingency, in that the Property did not appraise out as Plaintiffs
5 had expected, and most likely because the Property was not in the Parkmont area, as the Defendants
6 had falsely or mistakenly advertised.
7 30. Defendants breached the Contract because they failed and refused to accept
8 Plaintiffs’ timely notice of cancelation, and refused, and continue to refuse to cancel escrow and
9 allow Plaintiffs’ $48,000.00 earnest money deposit to be released from escrow to Plaintiffs as called
10 for under the Contract.
11 31. As a direct, proximate, and foreseeable consequence of Defendants’ fraud or mistake
12 as alleged in this Cause of Action, Plaintiffs have been generally, specially, and consequentially
13 damaged in the amount to be established according to proof at trial, but not less than $48,000.00.
14 32. Plaintiffs as prevailing party to this Cause of Action are entitled to their reasonable
15 attorneys fees and costs as provided pursuant to the Contract.
16 WHEREFORE, Plaintiffs pray for judgment against Defendants, and certain of Defendant
17 DOES 1 through 100, jointly and severally, as set forth hereinbelow.
18 PRAYER FOR RELIEF
19 WHEREFORE, Plaintiffs pray for judgment against Defendants, and certain of Defendant
20 DOES 1 through 100, jointly and severally, as set forth hereinbelow.
21 On the First Cause of Action:
22 1. For an order of this Court reforming the Contract to reflect a purchase price of
23 $1,500,000.00;
24 2. For an Order of this Court directing Defendants to sell the Property to Plaintiff at the
25 price of $1,500,000.00 on the terms and conditions set forth in the Contract and
26 reflecting the changed numbers that would be affected by the reformed price, offset
27 by any general, special, and consequential damages Plaintiffs suffered by reason of
28 the Defendants’ actions as alleged herein;
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COMPLAINT FOR DAMAGES
1 3. For Plaintiffs’ general, special, and consequential damages in an amount to be proven
2 at trial, provided that those damages are not part of the offset purchase price for the
3 Property.
4 On the Second Cause of Action:
5 4. For general, special, and compensatory damages according to proof, but not less than
6 $48,000.00;
7 On all Causes of Action:
8 5. For an order staying this action pending the completion of mediation and arbitration
9 proceedings;
10 6. For prejudgment interest on the aforesaid sums to the extent allowed by law;
11 7. For Plaintiffs’ attorneys’ fees and costs incurred herein;
12 8. For such other, further, and different relief as the Court may deem just and proper.
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DATED: June 19, 2023 AKAY LAW
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16
By:_____________________________________
17
Douglas N. Akay
18 Attorneys for Plaintiffs,
Bhanu Prakash and Mamatha Prakash
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COMPLAINT FOR DAMAGES
Preview
1 AKAY LAW DOUGLAS N. AKAY, SBN 131011 2 Email: dnakay@akaylaw.com ELSA BERRY, SBN 262363 3 Email: eberry@akaylaw.com DAVID MANCHESTER, SBN 331424 4 Email: dmanchester@akaylaw.com 90 New Montgomery Street, Ninth Floor 5 San Francisco, California 94105 Telephone: (415) 764-1999 6 Facsimile: (415) 764-1994 7 Attorneys for Plaintiffs Bhanu Prakash and Mamatha Prakash, individuals. 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF ALAMEDA, UNLIMITED JURISDICTION 11 12 BHANU PRAKASH, an individual; and Case No. 13 MAMATHA PRAKASH, an individual, COMPLAINT FOR REFORMATION OF 14 Plaintiffs, CONTRACT AND SPECIFIC PERFORMANCE; AND DAMAGES 15 v. JURY TRIAL DEMANDED 16 VARUNKANT VASHISHTHA, an individual; MEGHNA TYAGI, an individual; and DOES 1 Request to Stay This Action Pending 17 through 100, inclusive, Mediation and/or Arbitration 18 Defendants. 19 20 21 22 COMES NOW, Plaintiffs Bhanu Prakash and Mamatha Prakash, who allege as follows: 23 STATEMENT OF THE CASE 24 This lawsuit is an action over title to real property located at 37658 Canterbury Street, City 25 of Fremont, County of Alameda (the “Property”), because Plaintiffs’ accepted Offer to Purchase the 26 Property is still in legal effect, and Plaintiffs were fraudulently or mistakenly induced to make a 27 purchase offer on the Property because of Defendants’ false or mistaken description of the 28 neighborhood within which the Property is located. Plaintiffs seek to have the Court reform the 1 Contract price to $1,500,000.00, which is reflective of the actual neighborhood that the Property is 2 located, and its appraised value based upon its actual location, and order that Defendants convey the 3 Property at the reformed price less any offsets to which Plaintiffs are entitled, or, alternatively, 4 Plaintiffs seek to terminate their purchase of the Property based upon their timely exercise of 5 appraisal contingency, where in good faith, the Property did not appraise out consistent with 6 Plaintiffs’ expectations, and Plaintiffs want to be refunded back their entire earnest money deposit 7 plus any actual, special, and consequential damages they have suffered due to Defendants’ fraud or 8 mistake. Until the Property is conveyed to Plaintiffs at the reformed appraised contract price, or until 9 the Plaintiffs’ purchase contract is properly terminated and their earnest monies are returned, title to 10 the Property is in doubt. Plaintiffs also seek to stay this action pending the Purchase Contract’s 11 requirement of mediation and aribitration of the Parties’ dispute. 12 GENERAL ALLEGATIONS 13 Parties 14 1. Plaintiff BHANU PRAKASH (hereinafter referred to as one of the “Plaintiffs”) is an 15 individual, residing in Santa Clara county. 16 2. Plaintiff MAMATHA PRAKASH (hereinafter referred to as one of the “Plaintiffs”) 17 is an individual, residing in Santa Clara county. The Plaintiffs are married. 18 3. Defendant VARUNKANT VASHISHTHA (hereinafter referred to as one of the 19 “Defendants”) is an individual, residing in San Ramon, Contra Costa county. 20 4. Defendant MEGHNA TYAGI (hereinafter referred to as one of the “Defendants”) is 21 an individual, residing in San Ramon, Contra Costa county. Plaintiffs are informed and believe that 22 Defendants are married. 23 5. Plaintiffs are ignorant of the true names of DOES 1 through 100 (referred to herein 24 as “Defendant DOES”), inclusive, and therefore sues these defendants by such fictitious names. 25 Plaintiffs are informed and believe and, thereon, allege that each of these fictitiously named 26 defendants is legally responsible in some manner for Plaintiffs’ injuries and damages as alleged in 27 this pleading, or hold some interest or title in the real property described infra. 28 6. Plaintiffs are informed and believe and, thereon, allege that at all times herein -2- COMPLAINT FOR DAMAGES 1 mentioned, each of the Defendants was acting as the agent, servant, employee, partner, joint 2 tortfeasor, alter ego and/or enjoyed some vicarious liability relationship with each of the other 3 Defendants, and in doing the things hereinafter alleged, was acting within the course and scope of 4 such agency, permission, employment, partnership, joint venture and/or other business relationship. 5 THE REAL PROPERTY 6 7. The real property that is the subject of this Complaint is located at 37658 Canterbury 7 Street, Fremont, 94536, County of Alameda, APN 501-1507-104 (the “Property”). The Property is 8 currently owned by the Defendants 9 VENUE 10 8. Venue is proper in Alameda County because this action involves the right and title to 11 Property that is located in Alameda County. 12 STATEMENT OF FACTS 13 9. Plaintiffs saw online advertisements posted by the Defendants, and each of them, for 14 the sale of the Property, the Defendants’ former residence. The online advertisements stated that the 15 Property was “located in the desirable Parkmont area of Fremont”. 16 10. Based upon the Defendants’ representation on May 2, 2023, the Plaintiff offered to 17 purchase the Property for $1,600,000.00 using a California Association of Realtors’s (“CAR”) 18 California Residential Purchase Agreement and Joint Escrow Instructions (C.A.R. Form RPA, 19 Revised 12/22) form. Due to the “hot” real estate market, and due to Plaintiffs’ desire to purchase a 20 home for themselves in a desirable area of Fremont, Plaintiffs waived all contingencies except for 21 the appraisal contingency, and offered to close escrow within 30 days of the Defendants’ acceptance 22 of Plaintiffs’ offer. 23 11. Defendants countered Plaintiffs’ purchase offer with a proposed purchase price of 24 $1,650,000.00, which the Plaintiffs accepted on May 4, 2023 (the “Contract”). Once the Plaintiffs 25 and the Defendants were in contract, Plaintiffs deposited $48,000.00 as an earnest money deposit 26 into the Defendants’ “Preferred Escrow” company, Fidelity National Title, Escrow Number FAMC- 27 0352300187 (“Escrow”) pursuant to the Contract’s terms. Plaintiffs’ $48,000.00 earnest money 28 deposit sits in Escrow at the time of the filing of this Complaint. -3- COMPLAINT FOR DAMAGES 1 12. Plaintiffs then discovered that the Property was not located in “the desirable 2 Parkmont area of Fremont” but instead in a much less desirable area of Fremont called Centerville. 3 Centerville is denser neighborhood whose property values are generally lower that the Parkmont 4 area. 5 13. Pursuant to the Contract’s appraisal contingency, Plaintiffs obtained four appraisals 6 and three put the value of the Property at much less than the Contract price. The appraisal that came 7 in at the Contract price used the comparables that were out of date, were not relevant, and were not 8 located in the Centerville area, aside from one home with much more square footage than the 9 Property. In fact, the appraiser chose to ignore a comparable property within the Centerville area 10 with the exact same floor plan that sold just a few months prior to the date of the appraisal. The 11 Plaintiffs were alarmed that the Property was not as advertised in the Parkmont area, and the 12 appraisals indicated that the Property was worth much less than the Contract price. 13 14. On May 18, 2023, within the time specified in the Contract, the Plaintiffs executed a 14 Cancellation of Contract, Dispostion of Deposit and Cancellation of Escrow (CAR From CC, 15 Revised 12,22) (“Cancellation of Contract”) based upon their good faith exercise of the Appraisal 16 Contingency in paragraph L(2) 8B of the [Contract], and delivered it to the Defendants. This 17 document canceled the contract and requested that the Defendants agree to cancel escrow and release 18 the $48,000.00 earnest money deposit to Plaintiffs. Defendants refused to agree to cancel escrow on 19 Plaintiffs’ terms. 20 15. Refusing to accept Plaintiff’s Cancellation of Contract, and with the Contract still in 21 effect, on May 22, 2023, Defendants issued to Plaintiffs a Notice of Buyer to Perform (“Notice to 22 Perform”), asking, in effect, that the Plaintiffs remove all contingencies and perform pursuant to the 23 Contract within two days. Plaintiffs, who already Cancelled the Contract by their lawful exercise of 24 a failed contingency, refused to perform pursuant to Defendants’ new terms of the contract. 25 16. Defendants instead offered their own version of the Cancellation of Contract, which 26 called for cancelling the contract and escrow and release the earnest money deposit which was to be 27 increased by Plaintiffs to $49,500.00 to Defendants. Plaintiffs refused to agree to cancel escrow on 28 Defendants’ terms. -4- COMPLAINT FOR DAMAGES 1 17. With the parties at a standstill, and with the Contract still in effect, Plaintiffs are 2 informed and believe, and, thereon allege that Defendants continue to have the Property on the 3 market. Again, and apparently unrepentant, Defendants continue to falsely advertise the Property 4 being in “desirable area of Parkmont”. This time, however, Defendants have chosen a different 5 escrow holder as their “Preferred Escrow” company. 6 DISPUTE RESOLUTION UNDER THE CONTRACT 7 18. Under the Section 30.A of the Contract, “Parties agree to mediate any dispute or 8 claim arising between them out of this Agreement, or any resulting transaction, before resorting to 9 arbitration or court action.” Although Plaintiffs requested mediation pursuant to this clause, 10 Defendants have delayed the start of mediation and/or the selection of a mediator or mediation 11 service. If a party refuses mediation, then that party forfeits any entitlement to recovery of attorney 12 fees. 13 19. Under the Section 30.B of the Contract the obligation to mediate does not preclude 14 the right of any party to preserve its rights under Section 31.C, in which the party filing the action 15 does so “enable the recording of a notice of pending action,”, which is precisely the purpose why 16 Plaintiffs are filing this action herein. 17 20. Furthermore, pursuant to Section 31, et seq. of the Contract, both Plaintiffs and 18 Defendants have agreed to arbitrate this dispute, and the Plaintiffs by filing this action may seek to 19 compel arbitration of the dispute should the Defendants fail to participate in arbitration should the 20 mediation, if it occurs, fail to resolve the dispute. In this action, Plaintiffs seek to have the Court stay 21 this action pending the completion of mediation and/or arbitration. 22 PLAINTIFFS CONTINUE TO SUFFER DAMAGES 23 21. During the entire time the Defendants have been in Contract with the Plaintiffs, the 24 Defendants continued to market the Property, and the Defendants have since held multiple open 25 houses. Plaintiffs, meanwhile, hands are being tied because they consider the Contract to be in effect, 26 and they cannot re-enter the home purchasing market until there is a solution, whether by joint 27 agreement in mediation, or by an arbitrator’s decision. Until, there is a resolution of the matter, the 28 Plaintiffs continue to suffer damages. -5- COMPLAINT FOR DAMAGES 1 FIRST CAUSE OF ACTION 2 Specific Performance Based On Reformation of Contract 3 (Against all Defendants, and Certain of DOES 1-100) 4 22. Plaintiffs incorporate by reference as though set forth in full herein each and every 5 allegation contained in paragraphs 1 through 32, inclusive. 6 23. Defendants, through their fraud or mistake, falsely advertised the Property as being 7 in the “desirable Parkmont area” when, in fact, it was not. 8 24. Plaintiffs seek to reform the Contract, pursuant to Civil Code section 3399, to reflect 9 the true intention of the parties, in that, Plaintiffs are willing to pay the lower price for the Property 10 that is indicative of the Centerville area of Fremont, and not pay the higher price for the Property 11 had it been located in the Parkmont area of Fremont. The Plaintiffs’ appraisals indicate that the 12 Property should be priced at $1,500,000.00, instead of $1,650,000.00. The Plaintiffs seek the Court’s 13 determination that the Contract price should be what it would had the Defendants accurately 14 identified in which Fremont neighborhood the Property was actually located. 15 25. Plaintiffs seek specific performance for the Defendants to sell the Property to the 16 Plaintiffs at the reformed price of $1,500,000.00, and the Plaintiffs are ready, willing and able to 17 purchase the Property at that price. 18 26. As a direct, proximate, and foreseeable consequence of Defendants’ fraud or mistake 19 as alleged in this Cause of Action, Plaintiffs have been generally, specially, and consequentially 20 damaged in the amount to be established according to proof at trial. 21 27. Plaintiffs as prevailing party to this Cause of Action are entitled to their reasonable 22 attorneys fees and costs, pursuant to the Contract. 23 WHEREFORE, Plaintiffs pray for judgment against Defendants, and certain of Defendant 24 DOES 1 through 100, jointly and severally, as set forth hereinbelow. 25 SECOND CAUSE OF ACTION 26 Breach of Contract 27 (Against all Defendants, and Certain of DOES 1-100) 28 28. Plaintiffs incorporate by reference as though set forth in full herein each and every -6- COMPLAINT FOR DAMAGES 1 allegation contained in paragraphs 1 through 32, inclusive. 2 29. Plaintiffs properly exercised their right to cancel the Contract and escrow because 3 they timely gave notice to Defendants that Plaintiffs were cancelling the Contract because of their 4 good faith exercise of the appraisal contingency, in that the Property did not appraise out as Plaintiffs 5 had expected, and most likely because the Property was not in the Parkmont area, as the Defendants 6 had falsely or mistakenly advertised. 7 30. Defendants breached the Contract because they failed and refused to accept 8 Plaintiffs’ timely notice of cancelation, and refused, and continue to refuse to cancel escrow and 9 allow Plaintiffs’ $48,000.00 earnest money deposit to be released from escrow to Plaintiffs as called 10 for under the Contract. 11 31. As a direct, proximate, and foreseeable consequence of Defendants’ fraud or mistake 12 as alleged in this Cause of Action, Plaintiffs have been generally, specially, and consequentially 13 damaged in the amount to be established according to proof at trial, but not less than $48,000.00. 14 32. Plaintiffs as prevailing party to this Cause of Action are entitled to their reasonable 15 attorneys fees and costs as provided pursuant to the Contract. 16 WHEREFORE, Plaintiffs pray for judgment against Defendants, and certain of Defendant 17 DOES 1 through 100, jointly and severally, as set forth hereinbelow. 18 PRAYER FOR RELIEF 19 WHEREFORE, Plaintiffs pray for judgment against Defendants, and certain of Defendant 20 DOES 1 through 100, jointly and severally, as set forth hereinbelow. 21 On the First Cause of Action: 22 1. For an order of this Court reforming the Contract to reflect a purchase price of 23 $1,500,000.00; 24 2. For an Order of this Court directing Defendants to sell the Property to Plaintiff at the 25 price of $1,500,000.00 on the terms and conditions set forth in the Contract and 26 reflecting the changed numbers that would be affected by the reformed price, offset 27 by any general, special, and consequential damages Plaintiffs suffered by reason of 28 the Defendants’ actions as alleged herein; -7- COMPLAINT FOR DAMAGES 1 3. For Plaintiffs’ general, special, and consequential damages in an amount to be proven 2 at trial, provided that those damages are not part of the offset purchase price for the 3 Property. 4 On the Second Cause of Action: 5 4. For general, special, and compensatory damages according to proof, but not less than 6 $48,000.00; 7 On all Causes of Action: 8 5. For an order staying this action pending the completion of mediation and arbitration 9 proceedings; 10 6. For prejudgment interest on the aforesaid sums to the extent allowed by law; 11 7. For Plaintiffs’ attorneys’ fees and costs incurred herein; 12 8. For such other, further, and different relief as the Court may deem just and proper. 13 14 DATED: June 19, 2023 AKAY LAW 15 16 By:_____________________________________ 17 Douglas N. Akay 18 Attorneys for Plaintiffs, Bhanu Prakash and Mamatha Prakash 19 20 21 22 23 24 25 26 27 28 -8- COMPLAINT FOR DAMAGES