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1 || George P. Eshoo SBN 39081
Law Offices of George P. Eshoo
2 | 702 Marshall Street, Suite 500
3 Redwood City, CA 94063
Tel: 364-7030
4 || Emailm:georgeeshoo@aol.com
5 || Donald A. Wilson SBN 43993
6 Law Offices of Wilson & Wilson
1695 Broadway Street
7 || Redwood City, CA 94063
Tel: 650 366-8241
8 || Email: wildon43@gmail.com
9
10 Attorneys for Plaintiffs
HW SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SANMATEO |
13
14 Case No. 22-CIV-02099
15 Golden Global Enterprises Inc., a
California Corporation, Golden Global
16 Investment Trust — 2017, by and through Date: January 3, 2024
its’ Trustee, Donald A. Wilson, and 8880 Time: 2:00pm
17 || ELDER CREEK HOLDINGS, a Department 2 Room 2E
18 California Limited Liability Corporation Judge Nichole Healy
19 Plaintiffs Complaint Filed: May 24, 2022
Status: Stayed
20 || V
MEMORANDUM OF POINTS AND
21 || TIM ONDERKO, an Individual, and as AUTHORITIES OPPOSING PLAINTIFF’S
owner of a 49% interest in 8880 Elder PETITION TO CONFIRM ARBITRATION
22 || Creek Holdings,LLC, a California AWARD AND AWARD OF ATTORNEY’S
23 Limited Liability Corporation, and Does FEES
1-10, inclusive,
24
Defendants
25
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28 |
PLAINTIFFS OPPOSITION
1 I. INTRODUCTION
2 The Complaint for Declaratory Relief (“Complaint”) was filed on May 24, 2022 by
3 || Golden Global Enterprises, Inc., a California Corporation (“GGE”) , Golden Global Investment
4 || Trust — 2017, by and through its’ Trustee, Donald A. Wilson (“GIT”) , and 8880 ELDER CREEK
5 || HOLDINGS, a California Limited Liability Corporation (“ECH”) against Tim Onderko. The
6 Complaint was a request for the Court to declare the rights of the members, GGE and GIT, who
are 51% owners and the entity owned by the members, ECH, namely the Plaintiffs in this action
’ against Tim Onderko (“Onderko”) who, is the other member as a 49% owner of ECH. Part of the
8 Complaint was a request for the Court to declare the rights of the members ( GGE, GIT and
9 || Onderko) arising out of the buy-sell provisions of a Memorandum of Agreement effective as of
10 }} July 3, 2019 (“MOU”) specifically paragraph c, which is on page 2 of the MOU. A copy is
. 1} || attached as Exhibit A. For the Court’s convenience a copy of the original Complaint (without
2 exhibits) is attached as Exhibit B, and the amended Complaint (also without Exhibits) is attached
as Exhibit C.
3 On July 26, 2022, Onderko filed his response which was a “Notice of Petition and Petition
4 to Compel Arbitration”. A copy is attached as Exhibit D. The response is very clear as to the
15 parties, namely GGE, GIT, ECH and Onderko. Nowhere in the Complaint, the amended
16 || Complaint or the Notice was any claim that the dispute in the Case involved Donald A. Wilson
17 || (‘Wilson’) as an individual. Rather the dispute and the Petition to compel arbitration was
18 between the Members of ECH, concerning the interpretation of paragraph c of the MOU and the
19 arbitration provisions contained in the MOU. On August 7, 2023, the Honorable Marie Weiner
ordered the dispute between the parties to arbitration. A copy of that Order is attached as Exhibit
20 E. Nowhere in that Order, the Complaint, the amended Complaint or the Notice was any mention
21 | that the dispute in this Case involved Wilson as an individual.
22 A long pending arbitration that Onderko, individually, had previously filed against
23 || Wilson, individually, was heard a few days after the Order signed by the Honorable Marie
94 || Weiner. The arbitrator made a major jurisdictional error by making a finding against Wilson as
25 an individual even though the MOU provision that was the basis of the Onderko claim in the
26
27 72°
28 PLAINTIFFSOPPOSITION
] || arbitration specifically set forth that the buy-sell provisions in the MOU was between the
2 |} Members of ECH, and that Wilson, as an individual clearly is not a Member.
3 The principal asset of ECH is a master lease on the commercial warehouse at 8880 Elder
4 Creek (the property). So long as the lease remains effect ECH also has an option to purchase the
Property The MOU also contained buy-sell provisions through which one of ECH’s members
° could force the buy or sale of their respective membership interests in ECH. On March 3, 2022,
© || Onderko’s attorney sent a “Notice of Advisement of Receipt of Offer to Purchase”, asserting that
7 || on behalf of his client it was a buy-sell offer pursuant to the terms of the MOU. Defendants
8 || replied that it was not a buy sell offer in accordance with the terms of the MOU, however, if his
g || client would accept the value of the Property as set forth in the Offer, they would be willing to
, 10 purchase his client’s 49% membership interest in ECH at its fair market value. In the response
they suggested a range of that value. Onderko took the position that their response was an
" acceptance of the Third Party contract and demanded that an escrow be established and closed.
2 Defendants maintained their original position and filed this Declaratory Relief action to determine
13 }) the correct interpretation of the membership buy-sell provisions.This action was set for a Court
14 || Trial on August 9, 2023. For additional details the Court is directed to the trial brief Plaintiffs
15 || filed. . | a
16 Not wanting a simple resolution of the dispute, Onderko refiled a motion to have this
7 matter referred to Arbitration pursuant to provisions in the MOU. Plaintiffs argued Arbitration
had been waived through his filing of a separate related action in this Court, however, on August
18 7, two days before the scheduled trial, this Court ruled arbitration had not been waived and stayed
19 Il this action. A copy of that order is attached as Exhibit E. What could have and should have been
20 || asimple declaratory relief action to resolve a contractual dispute over the buy-sale of membership
21 || units has now been escalated into (1) an Order that this matter be arbitrated in place of the
27 || scheduled Court trial, (2) a prior filed separate arbitration before the AAA and (3) two additional
33 related lawsuits in this Court.
Notwithstanding the clear stay in this action, Onderko now brings a “Petition” to confirm
| 24 the jurisdictionally deficient Award in the prior AAA matter against a non-party.
25 SUMMARY OF FACTS
26
27 “3°
28 ||PLAINTIFFSOPPOSITION
~~~ ————~S
1 While Onderko has and continues to characterize this as a dispute between “Tim” and
2 || “Don”, nothing could be further from the facts. It is a dispute between the members of ECH,
3 || GGE and GIT, who own 51% of the membership units and Tim Onderko who owns the
4 remaining 49% of the membership units. Wilson, is not nor has he ever been an individual party
to this litigation. He is not individually named in any of the pleadings. It is critical to understand
° the dispute is between the members of ECH and that he is not a member, nor individually a party
6 to the dispute. Additionally, Onderko is attempting to have this Court enter an arbitration award
7 || that has the same jurisdictional defect. Wilson, as an individual, never had nor does he have a
8 || potential obligation to purchase Onderko’s 49% membership interest in ECH. In accordance with
9 || the clear language in the MOU that obligation exists ONLY to the 51% owner,
10 GGE and GIT, and as such the AAA award against Wilson cannot, as requested, be converted to
1 an individual judgment.
Although the Petition should be denied because (1) this action is stayed, (2) Wilson is not
12 a party to this action so the Court lacks jurisdiction to enter a Judgment against him and (3) the
13 || Arbitration award, if properly presented, should be vacated, the request for attorney fees should
14 || be denied because (1) that issue was presented and argued to the arbitrator and denied and (2) the
15 || dispute is pursuant to the interpretation of the MOU which does not contain an attorney fee
16 provision and unrelated to an Operating Agreement that applies ONLY to members and was
17 superseded by the MOU.
While Wilson may exercise substantial control over the Plaintiffs there have been no
18 allegations that they are his “alter ego” or that the legal entities should be disregarded.
19
20 || THE COURT HAS NO JURISDICTION TO ENTER A JUDGMENT AGAINST WILSON AS
21 HE IS NOT A PARTY TO THIS LITIGATION
22
33 This matter is controlled by CCP Section 1917 which sets forth the jurisdiction necessary
to support a Judgment. “The jurisdiction sufficient to sustain a record is jurisdiction over the
24 cause, over the parties, and over the thing, when a specific thing is the subject of the judgment.”
25 .
26
27 74-
28) PLAINTIFFSOPPOSITION
~~ —~CSSS
1 It is well settled that Jurisdiction over the Parties is necessary for the validity of any
2. || Judgment in Personam. Rothschold v. Erda (258 CA 2"4 750 at page 754). It is clear that Wilson,
3, || as an individual is not a party to this action.
4 j
; THE ARBITRATION AWARD SHOULD BE VACATED
; 6 ‘It is clear that the arbitration award was in error in that it made an award in excess of the
7 || Agreement (MOU) that was the subject of the Arbitration and if properly brought before this
8 || Court, should be vacated. .
9
10 THE REQUEST FOR ATTORNEY FEES SHOULD BE DENIED
If properly brought before this Court, it is also clear because any award for attorney’s fees
I in an arbitration case must be made by the Arbitrator and cannot be based on an operating
12 agreement which was not signed by the party sought to be charged and was superseded by a
13 subsequent amendment. The MOU does not have a provision for attorney fees and at page three
14 | contains the following provision:
15 “The parties hereby amend the Operating Agreement of the Seller to reflect the terms of
16 this transaction.” -
7 THIS MATTER IS STAYED
It is well established that wen a matter has been stayed, the stay must be lifted before
18 further actions can be taken and they must be on proper notice.
19
20 SPECIAL APPEARANCE
21
2 To the extent that Donald A. Wilson has appeared in this action is is either as an Attorney
73 for the Parties or as a Special Appearance which does not make him as an individual subject to
the jurisdiction of this Court to enter an individual Judgment or other orders against him. .
24 Making a special appearance to object to the Jurisdiction does not make him a party to this action.
25 The record is clear that Donald A. Wilson, as an individual, was not a party to this Court
26
27 75-
28 PLAINTIFFSOPPOSITION
| || proceeding, and there is nothing in the record of this Court that establishes him as making a
2 || general appearance. . |
4 :
2 Dated Doe 1g 12 2-3
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9 mes Co-Counsel for Plaintiffs ;
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AGREEMENT
AND .
MEMORANDUM OF UNDERSTANDING pou!
ASRS
THIS AGREEMENT (the “Agreement’), effective asof ae 2019
.
(the "Effective Date"), is by and between Golden Giobal Ente rises, Inc., a Callfornia
corporation, Donald A. Wilson, trustee of the Global Investment Trust - 2017 ("Buyer"),
and 8880 Elder Creek Holdings, LLC, a California limited Hability company ("Seller*). tt
also includes Donald A. Wilson ("Den"), the beneficial owner of Buyer and Tim Onderko
(‘Tim’) and Tom Sheridan (“Tom”) the beneficial owners of Seller, all of which are
hereinafter referred to as the parties.
The parties entered into a lease and option agreement effective as of July 1,
‘
2017 which anticipated that Seller would be able to finance certain improvements at the
leased and optionad property, 8880 Elder Creek Road, Sacramento, CA (the
“Property’). While seller has borrowed and invested approximately $350,000 toward
those improvements it appears as much as an additional $1,500,000 may be required to
fully realize the property's potential, which funds Seller is unable to obtain.
For the sum of $100,000 to be be paid to Tom, Buyer will acquire ail of Tom's .
interest in Selter and as much of Tim's interest such that Buyer will own a 51% equity
ownership Seller. $50,000 will be pald when this agreement is signed and the balance
of $50,000 in 5 payments of $10,000 each beginning on the 1st of July and continulng
monthly thereafter until paid In full. Don Is designated the managing member of Seller
and will be added to the bank account; however, Tim will consult with Don and continue
with management and oversight of the construction and day to day affairs.
As additional consideration, Don will assume responsibility for seeing that
additional loans up to a potential total of $1,500,000 are mada available to Seller, which
toans will be used to cover operational expenses and complete the improvements at the
Property. They will be made on such time schedule as is required that the
improvements are compieted without further delay. In the event that Don is unable fo
make the loans available to Seller in the minimum amount of $1,000,000.00, Don shall
relinquish to Tim a reverse pro-rata portion of his ownership interest. For example, if he
is only able to make $750,000 of loans avaliable 25% of his 51% interest would be
returned to Tim.
in order to assist with financing and/or loans, Don shall have the right to assign
or transfer up to 75% of his 51% ownership interest in Seller.
The plan is to sell the property by summer of 2021, or such sooner or later date
as Don and Tim agree, provided further that
a. The lease is extended to June 30, 2022; and a two-year option to
_fenew on the same terms and conditions is granted which would
extend the lease through June 30, 2024. Aithough Tim is the minority
owner in order to protect his Interest, he shall have the right to
determine if the apticn to extend the lease Is to be exercised.
b. The rent generated by the property above $50,000 per month shall be .
split 80% to Tenant and 20% to Landlord rather than the split set forth
in the original lease. From the rents below $50,000 per month the
$25,000 minimum rent payment (to the landlord shall be made and the
. balance ($25,000) used to make the interest payments on loans to the
LLC from Tim and Don and payments on any other loans obtained to
complete the planned Improvements. After payment of these loans
and operating expenses, any surplus will be distributed pro rata to
principal repayment of the toans from Tim and Don.
¢. The goal is to mutually maximize total return while preserving the right
of each member to make an individual decison to “sell” if mutual
agreement cannot be reached. Accordingly, at any time after June 30,
2020, if one of the members wants to sell and the other does not, the
member wanting to sell shall deliver a written notice to the other
member indicating the price and terms on which they are willing to sell.
thelr interest and the other member shail have 10 days after raceipt to
. tespond whether they will buy or seil that Interest on those terms,
conditions and price (adjusted for each member — Ie. the net proceeds
based on a stated sales price each respective member would receive
in accordance with this agreement) and if they do not respond within .
the 10 days, they wil! be deemed to have agreed to sell. The parties
understand that this may, but Is not required, to be effected through a
sala to a third party. Any such sale must close in not more than 60
days after the buy or sell decision is made.
; It is the understanding that Seller has an obligation of approximately $100,000 for
lease deposits and owes Tim not more than $360,000 which he personally guaranteed
and has loaned fo seller. (In order to preserve this loan he has recently made an ,
additional $50,000 principal payment, which will be considered part of his loans). He
has made the monthly interest payments on that loan which Is at 12%. After this
agreement is signed seller will make those payments In addition to the interest
payments on Don's loans and payments on any other loans used to complete the
planned improvements. The ultimate repayment of these obligations, including loans by
nonand others will be an obligation of Seller, to be paid before any division or return of ;
profits”. ; ,
Don has agreed to make up to $1,500,000 In financing available to Seller to
. complete the required improvements. To the extent he is unable to obtain toans from
other entities or investors, including the use of other property belonging to him as
collateral, the loans Don makes, including the $100,000 when this agreement is signed
will also bear interest at 12%. In order to obtain the loans which will be an obligation of
Seller, Don may be required to sell or assign part of his equity in Seller. It ls anticipated .
that the loans, excluding costs and related fees will not be at more than 12% interest.
immediately on signing this agreement Don will proceed with a proposed loan which
may include one for $600,000 using his properties in Arnold as collateral. The lendable
equity in Elder Creek Is greatly reduced by a tax len against the former owner which
Don disputes and has been litigated in the Tax Court with a decision pending. When
that tien has been removed, itis Don's intent to use that equity as well In order to obtain
the required financing and if an appropriate fender can be located possibly even prior to
removal of the tax lien.
Seller will now be responsible for the monthly payments on thelr individual loans
it is not anticipated that there will be distributable income until after the present tenants .
begin paying their scheduled rents which will not occur until the improvements are
completed and the tenants have obtained their necessary permits to operate. .
When the property is sold, the option will be soid or exercised, the loans and
other costs will then be paid and the balance of monies remaining will be divided in the
respective ration of ownership. As part of this agreement, the parties recognize that two
lifts have been purchased by the LLC which may be personally used by the parties
Costs of repair and usage will be shared (Don needs them for his other properties)
however individual use by Don or Tim shall not interfere with their use at Elder Creek
which remains their primary purpose. All costs relating to moving and return shalt be
paid by the party using the equipment. It Is also understood that a portion of the
unleased portion of the property may be used for worker temporary housing, the goal
being to compiete the required improvements at the best available price.
When this agreement is signed, Don will loan saller $100,000 (in addition to
making the $50,080 payment to Tom) so that constructicn of the improvements may
siart Immediately during the pendency of his locating additional loans, Including an
anticipated foan against his properties in Arnold. The parties understand thal the LLC
has approximately $35,000 in its bank accaunt, which when increased by the $100,000 .
loan from Don will allow the project to proceed and should cover the anticipated cash
flow for several months. Starting when this agreement is signed, the monies personally :
loaned to Seller by Don and Tim will bear interest at 12%, which will be accrued and
paid as hereinabove set forth. Interest, feas and costs on other loans (which Tim shall
have the right to approve or match) will be considered a cast of the project and repaid
as agreed in the loan documents.
The Parties hereby amend the Operating Agreement of Seller to reflect the terms
of this transaction. The Partles shall execute any further documentation required to =
implement the terms of this Agreement, ,
The parties shall enter into goad faith mediation to resolve any dispute arising out
of this agreement. If that is unsuccessful, the dispute shall be resolved by binding
arbitration, as they agree, or if they are unable to agree, using the rules of the American
Arbitration Asseciation, with venue for any dispute in San Matec County, unless , .
otherwise agreed.
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Preview
1 || George P. Eshoo SBN 39081 Law Offices of George P. Eshoo 2 | 702 Marshall Street, Suite 500 3 Redwood City, CA 94063 Tel: 364-7030 4 || Emailm:georgeeshoo@aol.com 5 || Donald A. Wilson SBN 43993 6 Law Offices of Wilson & Wilson 1695 Broadway Street 7 || Redwood City, CA 94063 Tel: 650 366-8241 8 || Email: wildon43@gmail.com 9 10 Attorneys for Plaintiffs HW SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SANMATEO | 13 14 Case No. 22-CIV-02099 15 Golden Global Enterprises Inc., a California Corporation, Golden Global 16 Investment Trust — 2017, by and through Date: January 3, 2024 its’ Trustee, Donald A. Wilson, and 8880 Time: 2:00pm 17 || ELDER CREEK HOLDINGS, a Department 2 Room 2E 18 California Limited Liability Corporation Judge Nichole Healy 19 Plaintiffs Complaint Filed: May 24, 2022 Status: Stayed 20 || V MEMORANDUM OF POINTS AND 21 || TIM ONDERKO, an Individual, and as AUTHORITIES OPPOSING PLAINTIFF’S owner of a 49% interest in 8880 Elder PETITION TO CONFIRM ARBITRATION 22 || Creek Holdings,LLC, a California AWARD AND AWARD OF ATTORNEY’S 23 Limited Liability Corporation, and Does FEES 1-10, inclusive, 24 Defendants 25 26 27 28 | PLAINTIFFS OPPOSITION 1 I. INTRODUCTION 2 The Complaint for Declaratory Relief (“Complaint”) was filed on May 24, 2022 by 3 || Golden Global Enterprises, Inc., a California Corporation (“GGE”) , Golden Global Investment 4 || Trust — 2017, by and through its’ Trustee, Donald A. Wilson (“GIT”) , and 8880 ELDER CREEK 5 || HOLDINGS, a California Limited Liability Corporation (“ECH”) against Tim Onderko. The 6 Complaint was a request for the Court to declare the rights of the members, GGE and GIT, who are 51% owners and the entity owned by the members, ECH, namely the Plaintiffs in this action ’ against Tim Onderko (“Onderko”) who, is the other member as a 49% owner of ECH. Part of the 8 Complaint was a request for the Court to declare the rights of the members ( GGE, GIT and 9 || Onderko) arising out of the buy-sell provisions of a Memorandum of Agreement effective as of 10 }} July 3, 2019 (“MOU”) specifically paragraph c, which is on page 2 of the MOU. A copy is . 1} || attached as Exhibit A. For the Court’s convenience a copy of the original Complaint (without 2 exhibits) is attached as Exhibit B, and the amended Complaint (also without Exhibits) is attached as Exhibit C. 3 On July 26, 2022, Onderko filed his response which was a “Notice of Petition and Petition 4 to Compel Arbitration”. A copy is attached as Exhibit D. The response is very clear as to the 15 parties, namely GGE, GIT, ECH and Onderko. Nowhere in the Complaint, the amended 16 || Complaint or the Notice was any claim that the dispute in the Case involved Donald A. Wilson 17 || (‘Wilson’) as an individual. Rather the dispute and the Petition to compel arbitration was 18 between the Members of ECH, concerning the interpretation of paragraph c of the MOU and the 19 arbitration provisions contained in the MOU. On August 7, 2023, the Honorable Marie Weiner ordered the dispute between the parties to arbitration. A copy of that Order is attached as Exhibit 20 E. Nowhere in that Order, the Complaint, the amended Complaint or the Notice was any mention 21 | that the dispute in this Case involved Wilson as an individual. 22 A long pending arbitration that Onderko, individually, had previously filed against 23 || Wilson, individually, was heard a few days after the Order signed by the Honorable Marie 94 || Weiner. The arbitrator made a major jurisdictional error by making a finding against Wilson as 25 an individual even though the MOU provision that was the basis of the Onderko claim in the 26 27 72° 28 PLAINTIFFSOPPOSITION ] || arbitration specifically set forth that the buy-sell provisions in the MOU was between the 2 |} Members of ECH, and that Wilson, as an individual clearly is not a Member. 3 The principal asset of ECH is a master lease on the commercial warehouse at 8880 Elder 4 Creek (the property). So long as the lease remains effect ECH also has an option to purchase the Property The MOU also contained buy-sell provisions through which one of ECH’s members ° could force the buy or sale of their respective membership interests in ECH. On March 3, 2022, © || Onderko’s attorney sent a “Notice of Advisement of Receipt of Offer to Purchase”, asserting that 7 || on behalf of his client it was a buy-sell offer pursuant to the terms of the MOU. Defendants 8 || replied that it was not a buy sell offer in accordance with the terms of the MOU, however, if his g || client would accept the value of the Property as set forth in the Offer, they would be willing to , 10 purchase his client’s 49% membership interest in ECH at its fair market value. In the response they suggested a range of that value. Onderko took the position that their response was an " acceptance of the Third Party contract and demanded that an escrow be established and closed. 2 Defendants maintained their original position and filed this Declaratory Relief action to determine 13 }) the correct interpretation of the membership buy-sell provisions.This action was set for a Court 14 || Trial on August 9, 2023. For additional details the Court is directed to the trial brief Plaintiffs 15 || filed. . | a 16 Not wanting a simple resolution of the dispute, Onderko refiled a motion to have this 7 matter referred to Arbitration pursuant to provisions in the MOU. Plaintiffs argued Arbitration had been waived through his filing of a separate related action in this Court, however, on August 18 7, two days before the scheduled trial, this Court ruled arbitration had not been waived and stayed 19 Il this action. A copy of that order is attached as Exhibit E. What could have and should have been 20 || asimple declaratory relief action to resolve a contractual dispute over the buy-sale of membership 21 || units has now been escalated into (1) an Order that this matter be arbitrated in place of the 27 || scheduled Court trial, (2) a prior filed separate arbitration before the AAA and (3) two additional 33 related lawsuits in this Court. Notwithstanding the clear stay in this action, Onderko now brings a “Petition” to confirm | 24 the jurisdictionally deficient Award in the prior AAA matter against a non-party. 25 SUMMARY OF FACTS 26 27 “3° 28 ||PLAINTIFFSOPPOSITION ~~~ ————~S 1 While Onderko has and continues to characterize this as a dispute between “Tim” and 2 || “Don”, nothing could be further from the facts. It is a dispute between the members of ECH, 3 || GGE and GIT, who own 51% of the membership units and Tim Onderko who owns the 4 remaining 49% of the membership units. Wilson, is not nor has he ever been an individual party to this litigation. He is not individually named in any of the pleadings. It is critical to understand ° the dispute is between the members of ECH and that he is not a member, nor individually a party 6 to the dispute. Additionally, Onderko is attempting to have this Court enter an arbitration award 7 || that has the same jurisdictional defect. Wilson, as an individual, never had nor does he have a 8 || potential obligation to purchase Onderko’s 49% membership interest in ECH. In accordance with 9 || the clear language in the MOU that obligation exists ONLY to the 51% owner, 10 GGE and GIT, and as such the AAA award against Wilson cannot, as requested, be converted to 1 an individual judgment. Although the Petition should be denied because (1) this action is stayed, (2) Wilson is not 12 a party to this action so the Court lacks jurisdiction to enter a Judgment against him and (3) the 13 || Arbitration award, if properly presented, should be vacated, the request for attorney fees should 14 || be denied because (1) that issue was presented and argued to the arbitrator and denied and (2) the 15 || dispute is pursuant to the interpretation of the MOU which does not contain an attorney fee 16 provision and unrelated to an Operating Agreement that applies ONLY to members and was 17 superseded by the MOU. While Wilson may exercise substantial control over the Plaintiffs there have been no 18 allegations that they are his “alter ego” or that the legal entities should be disregarded. 19 20 || THE COURT HAS NO JURISDICTION TO ENTER A JUDGMENT AGAINST WILSON AS 21 HE IS NOT A PARTY TO THIS LITIGATION 22 33 This matter is controlled by CCP Section 1917 which sets forth the jurisdiction necessary to support a Judgment. “The jurisdiction sufficient to sustain a record is jurisdiction over the 24 cause, over the parties, and over the thing, when a specific thing is the subject of the judgment.” 25 . 26 27 74- 28) PLAINTIFFSOPPOSITION ~~ —~CSSS 1 It is well settled that Jurisdiction over the Parties is necessary for the validity of any 2. || Judgment in Personam. Rothschold v. Erda (258 CA 2"4 750 at page 754). It is clear that Wilson, 3, || as an individual is not a party to this action. 4 j ; THE ARBITRATION AWARD SHOULD BE VACATED ; 6 ‘It is clear that the arbitration award was in error in that it made an award in excess of the 7 || Agreement (MOU) that was the subject of the Arbitration and if properly brought before this 8 || Court, should be vacated. . 9 10 THE REQUEST FOR ATTORNEY FEES SHOULD BE DENIED If properly brought before this Court, it is also clear because any award for attorney’s fees I in an arbitration case must be made by the Arbitrator and cannot be based on an operating 12 agreement which was not signed by the party sought to be charged and was superseded by a 13 subsequent amendment. The MOU does not have a provision for attorney fees and at page three 14 | contains the following provision: 15 “The parties hereby amend the Operating Agreement of the Seller to reflect the terms of 16 this transaction.” - 7 THIS MATTER IS STAYED It is well established that wen a matter has been stayed, the stay must be lifted before 18 further actions can be taken and they must be on proper notice. 19 20 SPECIAL APPEARANCE 21 2 To the extent that Donald A. Wilson has appeared in this action is is either as an Attorney 73 for the Parties or as a Special Appearance which does not make him as an individual subject to the jurisdiction of this Court to enter an individual Judgment or other orders against him. . 24 Making a special appearance to object to the Jurisdiction does not make him a party to this action. 25 The record is clear that Donald A. Wilson, as an individual, was not a party to this Court 26 27 75- 28 PLAINTIFFSOPPOSITION | || proceeding, and there is nothing in the record of this Court that establishes him as making a 2 || general appearance. . | 4 : 2 Dated Doe 1g 12 2-3 6 _ George P/Eshoo ‘ . Co-Counsel for Plaintifis) 7| ia g || Dated J \%/ 23 ae eT WV AL eee Danald A. Wilson ‘ic 9 mes Co-Counsel for Plaintiffs ; 10 I 12 13 | | 14 15 16 17 18 19 20 | 21 22 23 24 25 26 a 28)— ~~~ PLAINTIFFSOPPOSITION —CSsOSSSsSsCi~S . - _ . . . coe _ - Oo . "- .? wot . - a . . 7 oo o L . ane ae . . 7 , : . oo oN . - - oS - EXHIBIT A | RR . , a . - > : oy . , + : Le . 7 7 . ‘ . - - . 7m te . co - o . coon ; - - ne . ae . : . oa . - - o : . ‘ - -. oa : . ° mo . . - , 7 moe i Ss . . . - 7 - mo a . Co : . - ’ . . - . ~ 7 . . goo 7 . a mo 7 cos o . . . - . . i 2 : aan oo L- Sot fe . - . _- - - ; oe aac 3 : Pe . coo r, ma So, 7 - . Pee an ee . ‘ : r ° wor re ek . eo yee mo AGREEMENT AND . MEMORANDUM OF UNDERSTANDING pou! ASRS THIS AGREEMENT (the “Agreement’), effective asof ae 2019 . (the "Effective Date"), is by and between Golden Giobal Ente rises, Inc., a Callfornia corporation, Donald A. Wilson, trustee of the Global Investment Trust - 2017 ("Buyer"), and 8880 Elder Creek Holdings, LLC, a California limited Hability company ("Seller*). tt also includes Donald A. Wilson ("Den"), the beneficial owner of Buyer and Tim Onderko (‘Tim’) and Tom Sheridan (“Tom”) the beneficial owners of Seller, all of which are hereinafter referred to as the parties. The parties entered into a lease and option agreement effective as of July 1, ‘ 2017 which anticipated that Seller would be able to finance certain improvements at the leased and optionad property, 8880 Elder Creek Road, Sacramento, CA (the “Property’). While seller has borrowed and invested approximately $350,000 toward those improvements it appears as much as an additional $1,500,000 may be required to fully realize the property's potential, which funds Seller is unable to obtain. For the sum of $100,000 to be be paid to Tom, Buyer will acquire ail of Tom's . interest in Selter and as much of Tim's interest such that Buyer will own a 51% equity ownership Seller. $50,000 will be pald when this agreement is signed and the balance of $50,000 in 5 payments of $10,000 each beginning on the 1st of July and continulng monthly thereafter until paid In full. Don Is designated the managing member of Seller and will be added to the bank account; however, Tim will consult with Don and continue with management and oversight of the construction and day to day affairs. As additional consideration, Don will assume responsibility for seeing that additional loans up to a potential total of $1,500,000 are mada available to Seller, which toans will be used to cover operational expenses and complete the improvements at the Property. They will be made on such time schedule as is required that the improvements are compieted without further delay. In the event that Don is unable fo make the loans available to Seller in the minimum amount of $1,000,000.00, Don shall relinquish to Tim a reverse pro-rata portion of his ownership interest. For example, if he is only able to make $750,000 of loans avaliable 25% of his 51% interest would be returned to Tim. in order to assist with financing and/or loans, Don shall have the right to assign or transfer up to 75% of his 51% ownership interest in Seller. The plan is to sell the property by summer of 2021, or such sooner or later date as Don and Tim agree, provided further that a. The lease is extended to June 30, 2022; and a two-year option to _fenew on the same terms and conditions is granted which would extend the lease through June 30, 2024. Aithough Tim is the minority owner in order to protect his Interest, he shall have the right to determine if the apticn to extend the lease Is to be exercised. b. The rent generated by the property above $50,000 per month shall be . split 80% to Tenant and 20% to Landlord rather than the split set forth in the original lease. From the rents below $50,000 per month the $25,000 minimum rent payment (to the landlord shall be made and the . balance ($25,000) used to make the interest payments on loans to the LLC from Tim and Don and payments on any other loans obtained to complete the planned Improvements. After payment of these loans and operating expenses, any surplus will be distributed pro rata to principal repayment of the toans from Tim and Don. ¢. The goal is to mutually maximize total return while preserving the right of each member to make an individual decison to “sell” if mutual agreement cannot be reached. Accordingly, at any time after June 30, 2020, if one of the members wants to sell and the other does not, the member wanting to sell shall deliver a written notice to the other member indicating the price and terms on which they are willing to sell. thelr interest and the other member shail have 10 days after raceipt to . tespond whether they will buy or seil that Interest on those terms, conditions and price (adjusted for each member — Ie. the net proceeds based on a stated sales price each respective member would receive in accordance with this agreement) and if they do not respond within . the 10 days, they wil! be deemed to have agreed to sell. The parties understand that this may, but Is not required, to be effected through a sala to a third party. Any such sale must close in not more than 60 days after the buy or sell decision is made. ; It is the understanding that Seller has an obligation of approximately $100,000 for lease deposits and owes Tim not more than $360,000 which he personally guaranteed and has loaned fo seller. (In order to preserve this loan he has recently made an , additional $50,000 principal payment, which will be considered part of his loans). He has made the monthly interest payments on that loan which Is at 12%. After this agreement is signed seller will make those payments In addition to the interest payments on Don's loans and payments on any other loans used to complete the planned improvements. The ultimate repayment of these obligations, including loans by nonand others will be an obligation of Seller, to be paid before any division or return of ; profits”. ; , Don has agreed to make up to $1,500,000 In financing available to Seller to . complete the required improvements. To the extent he is unable to obtain toans from other entities or investors, including the use of other property belonging to him as collateral, the loans Don makes, including the $100,000 when this agreement is signed will also bear interest at 12%. In order to obtain the loans which will be an obligation of Seller, Don may be required to sell or assign part of his equity in Seller. It ls anticipated . that the loans, excluding costs and related fees will not be at more than 12% interest. immediately on signing this agreement Don will proceed with a proposed loan which may include one for $600,000 using his properties in Arnold as collateral. The lendable equity in Elder Creek Is greatly reduced by a tax len against the former owner which Don disputes and has been litigated in the Tax Court with a decision pending. When that tien has been removed, itis Don's intent to use that equity as well In order to obtain the required financing and if an appropriate fender can be located possibly even prior to removal of the tax lien. Seller will now be responsible for the monthly payments on thelr individual loans it is not anticipated that there will be distributable income until after the present tenants . begin paying their scheduled rents which will not occur until the improvements are completed and the tenants have obtained their necessary permits to operate. . When the property is sold, the option will be soid or exercised, the loans and other costs will then be paid and the balance of monies remaining will be divided in the respective ration of ownership. As part of this agreement, the parties recognize that two lifts have been purchased by the LLC which may be personally used by the parties Costs of repair and usage will be shared (Don needs them for his other properties) however individual use by Don or Tim shall not interfere with their use at Elder Creek which remains their primary purpose. All costs relating to moving and return shalt be paid by the party using the equipment. It Is also understood that a portion of the unleased portion of the property may be used for worker temporary housing, the goal being to compiete the required improvements at the best available price. When this agreement is signed, Don will loan saller $100,000 (in addition to making the $50,080 payment to Tom) so that constructicn of the improvements may siart Immediately during the pendency of his locating additional loans, Including an anticipated foan against his properties in Arnold. The parties understand thal the LLC has approximately $35,000 in its bank accaunt, which when increased by the $100,000 . loan from Don will allow the project to proceed and should cover the anticipated cash flow for several months. Starting when this agreement is signed, the monies personally : loaned to Seller by Don and Tim will bear interest at 12%, which will be accrued and paid as hereinabove set forth. Interest, feas and costs on other loans (which Tim shall have the right to approve or match) will be considered a cast of the project and repaid as agreed in the loan documents. The Parties hereby amend the Operating Agreement of Seller to reflect the terms of this transaction. The Partles shall execute any further documentation required to = implement the terms of this Agreement, , The parties shall enter into goad faith mediation to resolve any dispute arising out of this agreement. If that is unsuccessful, the dispute shall be resolved by binding arbitration, as they agree, or if they are unable to agree, using the rules of the American Arbitration Asseciation, with venue for any dispute in San Matec County, unless , . otherwise agreed. Dood Golden Global Enterprises, inc., a Callfornia corporation . . Global Investment Trust - 2017 , " Aa . aK LT, a o, : . 8880 Eider Creek Holdings, LLC, a California limited lability company , oS 2 A. =ms . | aaa fi | [1A Oy d ake ” . Tim Onderko . ns | as | 33 DZcall : Le * o vA a oo a : Tom Sheridan — —- ear c. : Naw Ta ere wh, af 110 ! “tie” Laser we | POPE OM ee TEU ee AT Tet + so : vine . DO ete Tost. ate Loe Doge Mere . - to tte sta “ae Bec 7: : a to I De eee tee . 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