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Electronically
RECEIVED
4/24/2024
CLERK OF THE SUPERIOR COURT
Bruce N. Furukawa (SBN 157303) SAN MATEO COUNTY
bruce@furukawacastles.com
Christopher Karic (SBN 184765)
chris@furukawacastles.com
FURUKAWA CASTLES LLP
800 Airport Boulevard, Suite 504
Burlingame, CA 94010
Telephone: (415) 510-2222
Facsimile: (415) 510-2240
Attorneys for Plaintiffs Greg Fair and
Natalie Fair, Trustees of The Kona Trust
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
10
11 THE KONA TRUST Case No. 23-CIV-05892
[Assigned to Judge Susan Greenberg in Dept.
12 Plaintiff, 3 for All Purposes]
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8 13 v
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BSoNs 14 BILL & RUTH MAINZER a/k/a THE ORDER FOR LEAVE OF COURT TO
S2u08
Ses PARADISE LIVING TRUST DATED FILE FIRST AMENDED COMPLAINT
Zaeous
Eo222
E2555
15 OCTOBER 6, 1997,
S22 LEA & BRAZE ENGINEERING, INC.
16 QUIROZ CONSTRUCTION, INC.
MICHAEL REPKA, DELEON REALTY, Complaint Filed: December 13, 2023
17 INC., TOWN OF PORTOLA VALLEY, Trial Date: Not Set
AND DOES 1 through 110, inclusive,
18
Defendants.
19
20 WHEREAS, Plaintiffs Greg Fair and Natalie Fair, in their capacities as Trustees of The Kona
21 Trust (collectively “Plaintiffs”), filed their compliant on or about December 13, 2023 (‘Original
22 Complaint”);
23 WHEREAS, subsequent to filing their Original Complaint, Plaintiffs realized that certain
24 defects existed in their Original Complaint which needed to be remedied;
25 WHEREAS, Defendants F. William Mainzer and Ruth Gelbart Mainzer, individually and as
26 Trustees of the Paradise Living Trust Dated October 6, 1997, as Amended and Restated (sued herein
27 as “Bill & Ruth Mainzer a/k/a THE PARADISE LIVING TRUST DATED OCTOBER 6, 1997”)
28 (collectively "Mainzer"), have filed and served an answer to the Original Complaint;
-l-
Stipulation and Proposed Order for Leave OF COURT to File First Amended Complaint
Case No. 23-CIV-05892
WHEREAS, Defendants and Cross-Complainants Michael Repka and Deleon Realty, Inc.
(collectively “Real Estate Parties”) have filed and served an answer to the Original Complaint, and
a cross-complaint;
WHEREAS, leave of Court is required pursuant to California Code of Civil Procedure §
473(a)(1) prior to filing the First Amended Complaint because Mainzer and the Real Estate Parties
have filed an answer to the Original Complaint;
WHEREAS, the Original Complaint was recently filed and no trial date has been set, and
accordingly, none of the parties will be prejudiced by Plaintiffs filing their First Amended
Complaint;
10 WHEREAS, the redlined proposed First Amended Complaint is attached hereto as Exhibit
11 A; and
12 WHEREAS, the proposed First Amended Complaint (without markups) is attached hereto
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11 Dated: April 12, 2024
Matt D. Zumstein
12 Jacqulynn Olivarez
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Attorneys for Defendants and
age 13 Cross-Complainants Michael Repka and
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19 (finding that third party may assert claim under Section 1559, even if not specifically
20 named as beneficiary, so long as the party is “more than incidentally benefitted by the
21. contract”). The Plaintiff isPlaintiffs are therefore third-party beneficiary to the
22 Subcontracts, entitled to enforce the terms of the Subcontracts.
23 3.93 The Plaintiff-is-informed-and-believes-and-thereon-allegesPlaintiffs are informed
24 and believe, and thereon allege, that the Subcontracts contained express and implied
25 warranties as to the quality of construction of the Property and the improvements thereon.
26 4.94. The PlaintiffPlaintiffs and Developer Defendants performed all conditions,
27 covenants, and promises required of them under the Subcontracts.
28 {Formatted: Normal
:
COMPLAINT
FOR DAMAGES ,:
PLAINTIEESPLAINTIFFS GREG FAIR AND NATALIE FAIR, TRUSTEES OF THE KONA TRUST’! “
FIRST AMENDED COMPLAINT FOR DAMAGES. CASE NO. 23-CIV-05892
$95 As evidenced by the existence of the defective conditions described herein, which
violate the functionality standards set forth in Part 2, Title 7, Chapter 2, of the California
Ci I Code (California Civil Code Seetions-§ 896; et seq), the Contractor Defendants have
breached the express terms of the Subcontracts, a: et forth in greater detail above,
including the requirement that the Project “meet or exceed” those standards
6-96. The PlaintiffPlai ‘fs has demanded of said Contractor Defendants that they
perform all conditions, covenants, and promises required of them under said Subcontracts
including, but not limited to, the requirement that the Project, Project Elements, and any
other appurtenant improvements including but not limited to drainage, be constructed
10 without defects and in conformity with the approved construction drawings, plans, permits,
M1 and specifications for the Project. Said Defendants have failed and refused and continue to
12 fail and refuse to perform their duties and obligations under the Subcontracts,
38, 13 492h As proximate result of Contractor Defendants’ failure and refusal as herein alleged,
14 the existence of the defective conditions described herein, Contractor Defendants” failure
ee
grt 15 to construct the Project (including without limitation drainage) in conformity with the
5:
28
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ze 16 approved construction drawings, plans, permits and specifications for the Project,
7 including the Subcontracts’ express requirement that the Project meet or exceed the
18 functionality standards set forth in Part 2, Title 7, Chapter 2, of the California Civil Code
19 (Civil Code Sections 896, et seq.) and, among other things, resultant failure of
20 consideration, Contractor Defendants have breached their Subcontracts, and the warranties
21 therein set forth, as result of which the PlaintifPlaintiffs has been damaged in an amount
22 which shall be shown upon proofat trial
A teak | - (Formatted: Indent: First ine: 0.5", No bullets or
23 & WHEREFORE, the Plaintiff prays- for judgment against Defend
24 them,as-hereafier
set forth. WHEREFORE, Plaintiffs pray for judgment against Defendants, anc
25 each of them, as hereafter set forth.
26 Ss HH CAUSE fF ACTION
27
28 _ {Formatted: Normal
2
,,
PE .NFIFESPLAINTIFFS GREG FAIR AND NATALIE FAIR, TRUSTEES OF THE KONA TRUST'S, “|
FIRST AMENDED COMPLAINT FOR DAMAGES CASE NO. 23-CIV-05892
1 (Breach of Contract against Defendants Mainzer and DOES 101-110 — Failure to Disclose
Material ‘acts. RealEF: fe Contra
3 {Formatted: indent: Left: 0% Firstine: 05"
Se
ze 16 | them,-as-hereafter-set-forth- WHEREFORE, Plaintiffs pray for judgment against Defendants, an
17 each of them, as hereafter set forth.
18
«| --(Formatted: indent: First line: 0.5"
19
20 THIR 1 CAUSE OF At ION
21 (Fraud against Defendants REPKA and DELEON and DOES 101-110)
22 46-realleges-and
Plaintiff incoxporates-by-referonce-the-alegations-contained
in the-above “| ERE ti
23 paragraphs:
24 142. Plaintiffs repeat, reallege, and incorporate by reference the allegations contained in
25 all preceding paragraphs.
26
a
28 _ {formatted: Normal
34
COMPLAINT
FOR DAMAGES
PLAINTIFESPLAINTIFFS GREG FAIR AND NATALIE FAIR, TRUSTEES OF THE KONA TRUST’! |
FIRST AMENDED COMPLAINT FOR DAMAGES, CASE NO. 23-CIV-05892
1 47.143. Prior to the sale of the Property, Defendants Repka and Deleon represented to
2, PlaintiffPlaintifis that the Property was in a certain condition, as represented in the contract
3 and other related documents.
4 48.144. Prior to the sale of the Property, Defendants Mainzer represented to
PlaintiffPlaintiffs that the Property was in a certain condition, as represented in the
6 Contract and other related documents. More specifically, Defendants Mainzer, through
their broker Defendants Repka and Deleon, failed to disclose the following material facts
about the Property, which Defendant knew at the time of the sale and which
PlaintiffPlaintiffs did not know and could not reasonably have discovered:
10 a. Improper site drainage which has permitted storm water flows to enter into and
ll flood the basement;
12 Improper subdrainage which permits waters to flow into crawl space then into the
13 basement;.and
14 ©, Improper placement of e7 soil resulting in ponding and damage.
+f Formatted: Numbered + Level: 1 + Numbering Style: 1, 2,
gcet
5
15 145. The true facts were not known to the PlaintiffPlaintiffs, who could not have 5, + Start at: 1 + Alignment: Left + Aligned at: 0.25" +
Indent at: 0.5"
ze 16 discovered those facts without specific disclosure by Defendants Repka and Deleon,
17 Defendants Repka and Deleon intentionally did not di close these facts to the
| 1s
ineifn iffS in order to induce the Plaintif*Plaintiffs to purchase the Property under
Plaintiffs
19 the terms of the Contract.
| 20 50-146. __PlaintiffPlaintiffs relied on Defendants Repka’s and Deleon’s representations and,
21 believing them to be true, agreed to purchase the Property.
| 22 54147. If PlaintiffPlaintiffs had known the true facts, PlaintiffPlaintiffs would not have
23 agreed to purchase the Property, or would have agreed to do so only under different terms.
24 $2,148. As a direct and proximate result of Defendant Repka and Deleon’s fraud,
25 PlaintiffPlaintiffs have been damaged in an amount to be proven at trial.
26 53.149. Defendant Repka and Deleon’s conduct was fraudulent, malicious, and oppressive,
27 and done with a conscious disregard for PlaintiffsPlaintiffs rights, justifying an award of
28 [Fomateaitoma Sd)
’,
PL JNTIERSPLAINTIFFS GREG FAIR AND NATALIE FAIR, TRUSTEES OF THE KONA TRUST’S, “|
FIRST AMENDED COMPLAINT FOR DAMAGES, CASE NO. 23-CIV-05892
1 punitive damages in an amount appropriate to punish and set an example of Defendant
2 Repka and Deleon.
3 $4, WHEREFORE, thePlaintifPlaintifis prays for judgment against Defendants, and *[
4 each of them, as hereafter set forth.
5 FOURTEENTH CAUSE OF A‘ IN
6 (Negligence against Town of Portola Valley and and-DOES 96-100)
7 tiff. pe - Hh 2 a yf rs ch Me Bi i +f Formatted: Numbered + Level: 1 + Numbering Style: 1, 2,
55.150. __ Ph P 3 + Start at: 1 + Alignment: Left + Aligned at: 0.25" +
Indent at: 0.5"
8 contained in-all preceding paragraphs-Plaintiffs repeat, reallege, and incorporate by
9 reference the allegations contained in all preceding paragraphs.
10 56;Pursuantto the California Government -Claims-Act, Plaintiff timely-presented-a-written
i claim-to-Defendant Fown-of PV- Seen neater
12 ciroumstance: : si
13 7-Defend: tT ERY, i e-bybs th ighch. it age failed fi Lt HI
Seg
ge 14 Plaintifs-claim-within-the
time prescribed by law:
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g.etg 15 ItofDefend i i hi e pI ied: ith-all-st P a
523 16 Plaintiff-is
now-entitled-to-bring-this-action-
17 59-Defendant owed a-duty-of care-to-Plaintiffto-maintain-and-repair-the-adjacent
public road
18 ‘ Plaintiff
19 151. Defendant breached this-duty-by-allowing
the road_to-deteriorate-and-failing
to
20 prevent excessive water runoffonto-Plaintiffs
property. Pursuant to the California
21 Government Claims Act, codified in California Government Code sections 810 et seq..
22 PiaintiffPlaintiffs timely presented a written claim to Defendant Town of Portola Valley
23 (hereafter "Town of PV") detailing the nature of the alleged injury, the circumstances
24 leading to the injury, and the damages suffered, as required by sections 910 and 911.2 of
25 the California Government Code, ceovtenzzeveess i Ca
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PL ENTFIFFSPLAINTIFFS GREG FAIR AND NATALIE FAIR, TRUSTEES OF THE KONA TRUST’: v
FIRST AMENDED COMPLAINT FOR DAMAGES. CASE NO, 23-CIV-05892
Formatted: \umber Level: 1+ Numbering
152. Despite Plaintiff'sPlaintiffs’ compliance with the procedural prerequisites set forth ~ |” + Start at: 1+ mer Left + Aligned at: 5"
Indent at:
in the California Government Code, including the timely presentation of the claim as
mandated by sections 910 and 911.2, Defendant Town of PV, acting by and through its
gents, failed and/or refused to accept, act upon, or otherwise allow PlaintiffsPlaintiffs’
claim within the time prescribed by California Government Code section 912.4.
153. As a result of Defendant's rejection, non-response, or other failure to satisfactoril
resolve the claim pursuant to the requireme nts of the California Government Code, and
having complied with all statutory prerequisites for bringing an action, including but not
limited to those set forth in sections 945.4 and 946.6, Pk tif isPlaintiffs are now entitled
10 and procedurally empowered to bring this action.
i 54, Defendant Town of PV owed a duty of care to PlaintiffPlaintiffs, and to the public
12 at large, to maintain and repair public infrastructure, including but not limited to the
23 13 drainage ditch across the street and the berm, in a manner that prevents the creation or
14 perpetuation of a dangerous condition on public property, as defined under Californis
Ste 15 Government Code section 830, 830(a) et seq.
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ze
16. 55. Defendant breached its duty by negligently failing to maintain the drainage dite]
17 situated across the roadway from the Property, allowing it to become obstructed with trees.
18 shrubs, and debris. This neglect resulted in a blockage of the culvert, leading to an
19 overflow and subsequent massive water inundation onto the Fair properts in direct
20 violation of the duty of care as stipulated by California Government Code section 835.
21 Furthermore, Defendant's negligence in not rectifying the condition of the berm, which
22 improperly channels cascading water onto PlaintiffsPlaintiffs’ property, constitutes an
23 additional breach of its statutory obligation to keep public property in a condition that does
24 jot endanger safety.
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COMPLAINT
FOR DAMAGES
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PLAINTIFFSPLAINTIFFS GREG FAIR AND NATALIE FAIR, TRUSTEES OF THE KONA TRUST’S, v
FIRST AMENDED COMPLAINT FOR DAMAGES. CASE NO. 23-CIV-05892
Formatted: Numbered + Level ‘+ Numbering Style: 1,
I 156. The Defendant Town of PV has further failed to adequately manage the sheet flow a + Start at: 1 +Alignme ft + Aligned at
Indent
2 of water down Zapata Way and across Mapache Drive. This failure has led to an improper
redirection of water onto the Fair Property, compounding the flooding issues already
present due to the blocked culvert and inadequately maintained berm. Sucl
mismanagement not only aggravates the flooding experienced by the PlaintiffPlaintiffs but
6 also constitutes a significant breach of duty by the Defendant, further contributing to the
inundation of the Fair property.
ale These cumulative acts of negligence by the Defendant have materially contribute:
to the excessive water overflow and resultant flooding, causing substantial harm and
10 damage to the PlaintiffsPlaintiffs’ property.
HW 58. As a direct and proximate result of Defendant's negligence and breaches of
12 statutory duties, including those duties enumerated in California Government Code
13 sections 835 and 840, PlaintiffPlaintiffs has suffered damages, including but not limited to
53 Ea
Ist 14 repair costs, diminution in the value of the property, and other consequential damages, as
eege
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at BoaS 15 described above.
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17 ding b no m od to dimin lue of the property, nd oth
18 ‘ialdamages,
consequential dé
19
20
tofDek di Pl tifEh «| --(Formatted: Nobullets
or numbering
2i Bigs
22 damages,-as-deseribed-above:
23 HE OR
24 set-forth: WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of them, as
25 hereafter set forth.
26
27 FIFTEENTH CAUSE OF ACTION
28
= — a -38- es
PLAINTIFRSPLAINTIFFS GREG IATALIE FAIR, TI IF E KONA TRUST’: “
FIRST AMENDED COMPLAINT FOR DAMAGES, CASE NO. 23-CIV-05892
£Dofondant's- PI Eby fe ad Jinn
‘For
Professional Negligence Against Defendant L&B and DOES 31 - 50)
4 160. Plaintiffs repeat, reallege, and incorporate by reference the allegations contained in
a all preceding paragraphs.
6 61 L&B owed a duty of care to Plaintiffs
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+
162. L&B, and L&B’s personnel, were required to provide the degree of care and skill
10 'dinarily exercised by a California licensed engineer in providing engineering service:
i ecessary for the proper design and completion of the Project
12 63, Plaintiffs are informed and believe, and thereon allege, that L&B breached its duty
3 13 of care by, among other things, providing defective and incomplete plans and
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epoca 14 specifications for the Project
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15 164. Plaintiffs are informed and believe. and thereon allege, that as a direct and ‘Numbering 2,3, “+ Start at: 1 + Alignment: Left +
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ze 16 proximate cause of L&B’s negligence as described herein, Plaintiffs suffered damages to
7 be asserted and established at
18
19 WHEREFORE, PlaintiffPlaintiffs KenaFrust
Fhe prays for judgment against all the
<
20 Defendants as follows:
21 1 For compensatory damages in an amount to be proven at trial:
22 For consequential damages in an amount to be proven at trial:
23 For punitive damages:
24 For PlaintiffPlaintiff's’ attomey’s fees, as permitted by law or contract:
25 For a decree of specific performance, requiring Defendants to carry out the contract terms
26 as agreed;
27 6. For rescission of the contract:
28
-39. :
COMPLAINT
FOR- DAMAGES
PLAINTIFESPLAINTIFFS GREG FAIR AND NATALIE FAIR, TRUSTEES OF THE KONA TRUST'S, wt
FIRST AMENDED COMPLAINT FOR DAMAGES CASE NO, 23-CIV-05892
4 For costs of suit incurred herein;
8. For prejudgment interest as allowed under California law; and
9. For such other and further relief as the court may deem just and proper
2024.
Dated: December43;2023.ha2024 FURUKAWA CASTLES LLP
By
Bruce N. Furukawa
Christopher Karic
Attorneys for Plaintiff-GREG-& NATALIE
‘Plaintiffs Greg Fait
10 and Natalie Fair, Trustees of The Kona Trust
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14
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17
18
19
20
21
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25
26
27
28 -40-
COMPLAINT FOR-DAMAGES
,7
PLAENTIFFSPLAINTIFFS GREG FAIR AND NATALIE FAIR, TRUSTEES OF THE KONA TRUST’: a
FIRST AMENDED COMPLAINT FOR DAMAGES CASE NO. 23-C1V-05892
EXHIBIT B
Bruce N. Furukawa (SBN 157303)
bruce@furukawacastles.com
Christopher Karic (SBN 184765)
chris@furukawacastles.com
FURUKAWA CASTLES LLP
800 Airport Boulevard, Suite 504
Burlingame, CA 94010
Telephone: (415) 510-2222
Facsimile: (415) 510-2240
Attorneys for
Plaintiffs Greg Fair and Natalie Fair, Trustees of The Kona Trust
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
10
11 GREG FAIR AND NATALIE FAIR, CASE NO. 23-CIV-05892
TRUSTEES OF THE KONA TRUST
12 [Assigned to Judge Susan Greenberg,
Plaintiffs, Department 3, for all purposes.]
age
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8 13
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Boake v PLAINTIFFS GREG FAIR AND
BSoNs 14 NATALIE FAIR, TRUSTEES OF THE
S2u08
gee BILL MAINZER AND RUTH MAINZER,, KONA TRUST’S, FIRST AMENDED
SE ous 15 TRUSTEES OF THE PARADISE LIVING COMPLAINT FOR DAMAGES
g$222
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S22 TRUST DATED OCTOBER 6, 1997;
16 LEA & BRAZE ENGINEERING, INC., a Documents Served and Filed Concurrently
California corporation; QUIROZ Herewith
17 CONSTRUCTION, INC., a California 1 Certificate of Merit [California Code of
corporation; MICHAEL REPKA, an Civil Procedure § 411.35(b)(1)]
18 Individual; DELEON REALTY, INC., a
California corporation; TOWN OF
19 PORTOLA VALLEY, a Public Entity; and Complaint Filed: December 13, 2023
DOES | through 110, inclusive, Trial Date: Not Set
20
Defendants.
21
22 Plaintiffs Greg Fair and Natalie Fair, in their capacities as Trustees of The Kona Trust
23 (hereafter collectively the “Trust” or “Plaintiffs”), allege as set forth below.
24 PRELIMINARY ALLEGATIONS
25 1 Plaintiffs are, and at all relevant times were, residents of the County of San Mateo, State of
26 California.
27 III
28
-l-
PLAINTIFFS GREG FAIR AND NATALIE FAIR, TRUSTEES OF THE KONA TRUST’S, FIRST
MENDED COMPLAINT FOR DAMAGES _ CASE NO. 23-CIV-05892
At all relevant times, Defendants William and Ruth Mainzer, in their capacities as Trustees
of the Paradise Living Trust Dated October 6, 1997 (hereafter the “Defendants Mainzer” or
“Mainzers”), were a resident of the County of San Mateo, State of California.
The real property and improvements which are the subject of the above captioned matter is
located at 199 Mapache Drive, Portola Valley, California 94028, and is hereinafter
collectively referred to as the “Property". The design, construction, management,
administrative, and other activities initiated, performed, and overseen by the Defendants
Mainzer to improve the real property and erect a new custom home on the Property shall
be collectively referred to the “Project”.
10 Defendant Michael Repka is an individual (hereafter referred to as “Defendant Repka” or
11 “Repka”) is, and was at all relevant times, a licensed real estate broker in the State of
12 California with his/her principal place of business in Palo Alto, Santa Clara County,
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age 13 California. Defendant Repka at all relevant times acted as the real estate broker for
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S2uo
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Sezges
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Preview
Electronically RECEIVED 4/24/2024 CLERK OF THE SUPERIOR COURT Bruce N. Furukawa (SBN 157303) SAN MATEO COUNTY bruce@furukawacastles.com Christopher Karic (SBN 184765) chris@furukawacastles.com FURUKAWA CASTLES LLP 800 Airport Boulevard, Suite 504 Burlingame, CA 94010 Telephone: (415) 510-2222 Facsimile: (415) 510-2240 Attorneys for Plaintiffs Greg Fair and Natalie Fair, Trustees of The Kona Trust SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 10 11 THE KONA TRUST Case No. 23-CIV-05892 [Assigned to Judge Susan Greenberg in Dept. 12 Plaintiff, 3 for All Purposes] age aveESoat 8 13 v os Boake STIPULATION AND PROPOSED BSoNs 14 BILL & RUTH MAINZER a/k/a THE ORDER FOR LEAVE OF COURT TO S2u08 Ses PARADISE LIVING TRUST DATED FILE FIRST AMENDED COMPLAINT Zaeous Eo222 E2555 15 OCTOBER 6, 1997, S22 LEA & BRAZE ENGINEERING, INC. 16 QUIROZ CONSTRUCTION, INC. MICHAEL REPKA, DELEON REALTY, Complaint Filed: December 13, 2023 17 INC., TOWN OF PORTOLA VALLEY, Trial Date: Not Set AND DOES 1 through 110, inclusive, 18 Defendants. 19 20 WHEREAS, Plaintiffs Greg Fair and Natalie Fair, in their capacities as Trustees of The Kona 21 Trust (collectively “Plaintiffs”), filed their compliant on or about December 13, 2023 (‘Original 22 Complaint”); 23 WHEREAS, subsequent to filing their Original Complaint, Plaintiffs realized that certain 24 defects existed in their Original Complaint which needed to be remedied; 25 WHEREAS, Defendants F. William Mainzer and Ruth Gelbart Mainzer, individually and as 26 Trustees of the Paradise Living Trust Dated October 6, 1997, as Amended and Restated (sued herein 27 as “Bill & Ruth Mainzer a/k/a THE PARADISE LIVING TRUST DATED OCTOBER 6, 1997”) 28 (collectively "Mainzer"), have filed and served an answer to the Original Complaint; -l- Stipulation and Proposed Order for Leave OF COURT to File First Amended Complaint Case No. 23-CIV-05892 WHEREAS, Defendants and Cross-Complainants Michael Repka and Deleon Realty, Inc. (collectively “Real Estate Parties”) have filed and served an answer to the Original Complaint, and a cross-complaint; WHEREAS, leave of Court is required pursuant to California Code of Civil Procedure § 473(a)(1) prior to filing the First Amended Complaint because Mainzer and the Real Estate Parties have filed an answer to the Original Complaint; WHEREAS, the Original Complaint was recently filed and no trial date has been set, and accordingly, none of the parties will be prejudiced by Plaintiffs filing their First Amended Complaint; 10 WHEREAS, the redlined proposed First Amended Complaint is attached hereto as Exhibit 11 A; and 12 WHEREAS, the proposed First Amended Complaint (without markups) is attached hereto ah Sue age 13 as Exhibit B. gen Ban odgs 14 THEREFORE, Mainzer, the Real Estate Parties, and Plaintiffs, through their respective S2uo ease 2a Zeon 22 15 counsel, stipulate to the following: (1) that the above captioned Court may grant leave of Court Sezges ze S = WoAL— 11 Dated: April 12, 2024 Matt D. Zumstein 12 Jacqulynn Olivarez ah Sue Attorneys for Defendants and age 13 Cross-Complainants Michael Repka and gen Ban odgs Deleon Realty, Inc. 14 S2uo ease 2a Zeon 22 15 FURUKAWA CAST LES LLP Sezges . ze fh.” / lf ly S} 19 (finding that third party may assert claim under Section 1559, even if not specifically 20 named as beneficiary, so long as the party is “more than incidentally benefitted by the 21. contract”). The Plaintiff isPlaintiffs are therefore third-party beneficiary to the 22 Subcontracts, entitled to enforce the terms of the Subcontracts. 23 3.93 The Plaintiff-is-informed-and-believes-and-thereon-allegesPlaintiffs are informed 24 and believe, and thereon allege, that the Subcontracts contained express and implied 25 warranties as to the quality of construction of the Property and the improvements thereon. 26 4.94. The PlaintiffPlaintiffs and Developer Defendants performed all conditions, 27 covenants, and promises required of them under the Subcontracts. 28 {Formatted: Normal : COMPLAINT FOR DAMAGES ,: PLAINTIEESPLAINTIFFS GREG FAIR AND NATALIE FAIR, TRUSTEES OF THE KONA TRUST’! “ FIRST AMENDED COMPLAINT FOR DAMAGES. CASE NO. 23-CIV-05892 $95 As evidenced by the existence of the defective conditions described herein, which violate the functionality standards set forth in Part 2, Title 7, Chapter 2, of the California Ci I Code (California Civil Code Seetions-§ 896; et seq), the Contractor Defendants have breached the express terms of the Subcontracts, a: et forth in greater detail above, including the requirement that the Project “meet or exceed” those standards 6-96. The PlaintiffPlai ‘fs has demanded of said Contractor Defendants that they perform all conditions, covenants, and promises required of them under said Subcontracts including, but not limited to, the requirement that the Project, Project Elements, and any other appurtenant improvements including but not limited to drainage, be constructed 10 without defects and in conformity with the approved construction drawings, plans, permits, M1 and specifications for the Project. Said Defendants have failed and refused and continue to 12 fail and refuse to perform their duties and obligations under the Subcontracts, 38, 13 492h As proximate result of Contractor Defendants’ failure and refusal as herein alleged, 14 the existence of the defective conditions described herein, Contractor Defendants” failure ee grt 15 to construct the Project (including without limitation drainage) in conformity with the 5: 28 ge ze 16 approved construction drawings, plans, permits and specifications for the Project, 7 including the Subcontracts’ express requirement that the Project meet or exceed the 18 functionality standards set forth in Part 2, Title 7, Chapter 2, of the California Civil Code 19 (Civil Code Sections 896, et seq.) and, among other things, resultant failure of 20 consideration, Contractor Defendants have breached their Subcontracts, and the warranties 21 therein set forth, as result of which the PlaintifPlaintiffs has been damaged in an amount 22 which shall be shown upon proofat trial A teak | - (Formatted: Indent: First ine: 0.5", No bullets or 23 & WHEREFORE, the Plaintiff prays- for judgment against Defend 24 them,as-hereafier set forth. WHEREFORE, Plaintiffs pray for judgment against Defendants, anc 25 each of them, as hereafter set forth. 26 Ss HH CAUSE fF ACTION 27 28 _ {Formatted: Normal 2 ,, PE .NFIFESPLAINTIFFS GREG FAIR AND NATALIE FAIR, TRUSTEES OF THE KONA TRUST'S, “| FIRST AMENDED COMPLAINT FOR DAMAGES CASE NO. 23-CIV-05892 1 (Breach of Contract against Defendants Mainzer and DOES 101-110 — Failure to Disclose Material ‘acts. RealEF: fe Contra 3 {Formatted: indent: Left: 0% Firstine: 05" Se ze 16 | them,-as-hereafter-set-forth- WHEREFORE, Plaintiffs pray for judgment against Defendants, an 17 each of them, as hereafter set forth. 18 «| --(Formatted: indent: First line: 0.5" 19 20 THIR 1 CAUSE OF At ION 21 (Fraud against Defendants REPKA and DELEON and DOES 101-110) 22 46-realleges-and Plaintiff incoxporates-by-referonce-the-alegations-contained in the-above “| ERE ti 23 paragraphs: 24 142. Plaintiffs repeat, reallege, and incorporate by reference the allegations contained in 25 all preceding paragraphs. 26 a 28 _ {formatted: Normal 34 COMPLAINT FOR DAMAGES PLAINTIFESPLAINTIFFS GREG FAIR AND NATALIE FAIR, TRUSTEES OF THE KONA TRUST’! | FIRST AMENDED COMPLAINT FOR DAMAGES, CASE NO. 23-CIV-05892 1 47.143. Prior to the sale of the Property, Defendants Repka and Deleon represented to 2, PlaintiffPlaintifis that the Property was in a certain condition, as represented in the contract 3 and other related documents. 4 48.144. Prior to the sale of the Property, Defendants Mainzer represented to PlaintiffPlaintiffs that the Property was in a certain condition, as represented in the 6 Contract and other related documents. More specifically, Defendants Mainzer, through their broker Defendants Repka and Deleon, failed to disclose the following material facts about the Property, which Defendant knew at the time of the sale and which PlaintiffPlaintiffs did not know and could not reasonably have discovered: 10 a. Improper site drainage which has permitted storm water flows to enter into and ll flood the basement; 12 Improper subdrainage which permits waters to flow into crawl space then into the 13 basement;.and 14 ©, Improper placement of e7 soil resulting in ponding and damage. +f Formatted: Numbered + Level: 1 + Numbering Style: 1, 2, gcet 5 15 145. The true facts were not known to the PlaintiffPlaintiffs, who could not have 5, + Start at: 1 + Alignment: Left + Aligned at: 0.25" + Indent at: 0.5" ze 16 discovered those facts without specific disclosure by Defendants Repka and Deleon, 17 Defendants Repka and Deleon intentionally did not di close these facts to the | 1s ineifn iffS in order to induce the Plaintif*Plaintiffs to purchase the Property under Plaintiffs 19 the terms of the Contract. | 20 50-146. __PlaintiffPlaintiffs relied on Defendants Repka’s and Deleon’s representations and, 21 believing them to be true, agreed to purchase the Property. | 22 54147. If PlaintiffPlaintiffs had known the true facts, PlaintiffPlaintiffs would not have 23 agreed to purchase the Property, or would have agreed to do so only under different terms. 24 $2,148. As a direct and proximate result of Defendant Repka and Deleon’s fraud, 25 PlaintiffPlaintiffs have been damaged in an amount to be proven at trial. 26 53.149. Defendant Repka and Deleon’s conduct was fraudulent, malicious, and oppressive, 27 and done with a conscious disregard for PlaintiffsPlaintiffs rights, justifying an award of 28 [Fomateaitoma Sd) ’, PL JNTIERSPLAINTIFFS GREG FAIR AND NATALIE FAIR, TRUSTEES OF THE KONA TRUST’S, “| FIRST AMENDED COMPLAINT FOR DAMAGES, CASE NO. 23-CIV-05892 1 punitive damages in an amount appropriate to punish and set an example of Defendant 2 Repka and Deleon. 3 $4, WHEREFORE, thePlaintifPlaintifis prays for judgment against Defendants, and *[ 4 each of them, as hereafter set forth. 5 FOURTEENTH CAUSE OF A‘ IN 6 (Negligence against Town of Portola Valley and and-DOES 96-100) 7 tiff. pe - Hh 2 a yf rs ch Me Bi i +f Formatted: Numbered + Level: 1 + Numbering Style: 1, 2, 55.150. __ Ph P 3 + Start at: 1 + Alignment: Left + Aligned at: 0.25" + Indent at: 0.5" 8 contained in-all preceding paragraphs-Plaintiffs repeat, reallege, and incorporate by 9 reference the allegations contained in all preceding paragraphs. 10 56;Pursuantto the California Government -Claims-Act, Plaintiff timely-presented-a-written i claim-to-Defendant Fown-of PV- Seen neater 12 ciroumstance: : si 13 7-Defend: tT ERY, i e-bybs th ighch. it age failed fi Lt HI Seg ge 14 Plaintifs-claim-within-the time prescribed by law: 323 323) srry g.etg 15 ItofDefend i i hi e pI ied: ith-all-st P a 523 16 Plaintiff-is now-entitled-to-bring-this-action- 17 59-Defendant owed a-duty-of care-to-Plaintiffto-maintain-and-repair-the-adjacent public road 18 ‘ Plaintiff 19 151. Defendant breached this-duty-by-allowing the road_to-deteriorate-and-failing to 20 prevent excessive water runoffonto-Plaintiffs property. Pursuant to the California 21 Government Claims Act, codified in California Government Code sections 810 et seq.. 22 PiaintiffPlaintiffs timely presented a written claim to Defendant Town of Portola Valley 23 (hereafter "Town of PV") detailing the nature of the alleged injury, the circumstances 24 leading to the injury, and the damages suffered, as required by sections 910 and 911.2 of 25 the California Government Code, ceovtenzzeveess i Ca in aes) 26 wh ++ 27 28 -36- emai ES /, PL ENTFIFFSPLAINTIFFS GREG FAIR AND NATALIE FAIR, TRUSTEES OF THE KONA TRUST’: v FIRST AMENDED COMPLAINT FOR DAMAGES. CASE NO, 23-CIV-05892 Formatted: \umber Level: 1+ Numbering 152. Despite Plaintiff'sPlaintiffs’ compliance with the procedural prerequisites set forth ~ |” + Start at: 1+ mer Left + Aligned at: 5" Indent at: in the California Government Code, including the timely presentation of the claim as mandated by sections 910 and 911.2, Defendant Town of PV, acting by and through its gents, failed and/or refused to accept, act upon, or otherwise allow PlaintiffsPlaintiffs’ claim within the time prescribed by California Government Code section 912.4. 153. As a result of Defendant's rejection, non-response, or other failure to satisfactoril resolve the claim pursuant to the requireme nts of the California Government Code, and having complied with all statutory prerequisites for bringing an action, including but not limited to those set forth in sections 945.4 and 946.6, Pk tif isPlaintiffs are now entitled 10 and procedurally empowered to bring this action. i 54, Defendant Town of PV owed a duty of care to PlaintiffPlaintiffs, and to the public 12 at large, to maintain and repair public infrastructure, including but not limited to the 23 13 drainage ditch across the street and the berm, in a manner that prevents the creation or 14 perpetuation of a dangerous condition on public property, as defined under Californis Ste 15 Government Code section 830, 830(a) et seq. Se ze 16. 55. Defendant breached its duty by negligently failing to maintain the drainage dite] 17 situated across the roadway from the Property, allowing it to become obstructed with trees. 18 shrubs, and debris. This neglect resulted in a blockage of the culvert, leading to an 19 overflow and subsequent massive water inundation onto the Fair properts in direct 20 violation of the duty of care as stipulated by California Government Code section 835. 21 Furthermore, Defendant's negligence in not rectifying the condition of the berm, which 22 improperly channels cascading water onto PlaintiffsPlaintiffs’ property, constitutes an 23 additional breach of its statutory obligation to keep public property in a condition that does 24 jot endanger safety. 25 wt 26 uw 27 uw 28 31 {comand COMPLAINT FOR DAMAGES = z, PLAINTIFFSPLAINTIFFS GREG FAIR AND NATALIE FAIR, TRUSTEES OF THE KONA TRUST’S, v FIRST AMENDED COMPLAINT FOR DAMAGES. CASE NO. 23-CIV-05892 Formatted: Numbered + Level ‘+ Numbering Style: 1, I 156. The Defendant Town of PV has further failed to adequately manage the sheet flow a + Start at: 1 +Alignme ft + Aligned at Indent 2 of water down Zapata Way and across Mapache Drive. This failure has led to an improper redirection of water onto the Fair Property, compounding the flooding issues already present due to the blocked culvert and inadequately maintained berm. Sucl mismanagement not only aggravates the flooding experienced by the PlaintiffPlaintiffs but 6 also constitutes a significant breach of duty by the Defendant, further contributing to the inundation of the Fair property. ale These cumulative acts of negligence by the Defendant have materially contribute: to the excessive water overflow and resultant flooding, causing substantial harm and 10 damage to the PlaintiffsPlaintiffs’ property. HW 58. As a direct and proximate result of Defendant's negligence and breaches of 12 statutory duties, including those duties enumerated in California Government Code 13 sections 835 and 840, PlaintiffPlaintiffs has suffered damages, including but not limited to 53 Ea Ist 14 repair costs, diminution in the value of the property, and other consequential damages, as eege a58S at BoaS 15 described above. Bue 255 523 ze 16 end Plaintiffs, 17 ding b no m od to dimin lue of the property, nd oth 18 ‘ialdamages, consequential dé 19 20 tofDek di Pl tifEh «| --(Formatted: Nobullets or numbering 2i Bigs 22 damages,-as-deseribed-above: 23 HE OR 24 set-forth: WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of them, as 25 hereafter set forth. 26 27 FIFTEENTH CAUSE OF ACTION 28 = — a -38- es PLAINTIFRSPLAINTIFFS GREG IATALIE FAIR, TI IF E KONA TRUST’: “ FIRST AMENDED COMPLAINT FOR DAMAGES, CASE NO. 23-CIV-05892 £Dofondant's- PI Eby fe ad Jinn ‘For Professional Negligence Against Defendant L&B and DOES 31 - 50) 4 160. Plaintiffs repeat, reallege, and incorporate by reference the allegations contained in a all preceding paragraphs. 6 61 L&B owed a duty of care to Plaintiffs UW ul + 162. L&B, and L&B’s personnel, were required to provide the degree of care and skill 10 'dinarily exercised by a California licensed engineer in providing engineering service: i ecessary for the proper design and completion of the Project 12 63, Plaintiffs are informed and believe, and thereon allege, that L&B breached its duty 3 13 of care by, among other things, providing defective and incomplete plans and fg 328285 epoca 14 specifications for the Project sti 353 le asst Cie vogely Santee + ae 2 ie 3g Se 15 164. Plaintiffs are informed and believe. and thereon allege, that as a direct and ‘Numbering 2,3, “+ Start at: 1 + Alignment: Left + Ze. ge Aligned at: 0.25" + Indentat: 0.5" ze 16 proximate cause of L&B’s negligence as described herein, Plaintiffs suffered damages to 7 be asserted and established at 18 19 WHEREFORE, PlaintiffPlaintiffs KenaFrust Fhe prays for judgment against all the < 20 Defendants as follows: 21 1 For compensatory damages in an amount to be proven at trial: 22 For consequential damages in an amount to be proven at trial: 23 For punitive damages: 24 For PlaintiffPlaintiff's’ attomey’s fees, as permitted by law or contract: 25 For a decree of specific performance, requiring Defendants to carry out the contract terms 26 as agreed; 27 6. For rescission of the contract: 28 -39. : COMPLAINT FOR- DAMAGES PLAINTIFESPLAINTIFFS GREG FAIR AND NATALIE FAIR, TRUSTEES OF THE KONA TRUST'S, wt FIRST AMENDED COMPLAINT FOR DAMAGES CASE NO, 23-CIV-05892 4 For costs of suit incurred herein; 8. For prejudgment interest as allowed under California law; and 9. For such other and further relief as the court may deem just and proper 2024. Dated: December43;2023.ha2024 FURUKAWA CASTLES LLP By Bruce N. Furukawa Christopher Karic Attorneys for Plaintiff-GREG-& NATALIE ‘Plaintiffs Greg Fait 10 and Natalie Fair, Trustees of The Kona Trust ll 12 ot 13 aeoxee 14 15 ze 16 17 18 19 20 21 22 B 24 25 26 27 28 -40- COMPLAINT FOR-DAMAGES ,7 PLAENTIFFSPLAINTIFFS GREG FAIR AND NATALIE FAIR, TRUSTEES OF THE KONA TRUST’: a FIRST AMENDED COMPLAINT FOR DAMAGES CASE NO. 23-C1V-05892 EXHIBIT B Bruce N. Furukawa (SBN 157303) bruce@furukawacastles.com Christopher Karic (SBN 184765) chris@furukawacastles.com FURUKAWA CASTLES LLP 800 Airport Boulevard, Suite 504 Burlingame, CA 94010 Telephone: (415) 510-2222 Facsimile: (415) 510-2240 Attorneys for Plaintiffs Greg Fair and Natalie Fair, Trustees of The Kona Trust SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 10 11 GREG FAIR AND NATALIE FAIR, CASE NO. 23-CIV-05892 TRUSTEES OF THE KONA TRUST 12 [Assigned to Judge Susan Greenberg, Plaintiffs, Department 3, for all purposes.] age aveESoat 8 13 os Boake v PLAINTIFFS GREG FAIR AND BSoNs 14 NATALIE FAIR, TRUSTEES OF THE S2u08 gee BILL MAINZER AND RUTH MAINZER,, KONA TRUST’S, FIRST AMENDED SE ous 15 TRUSTEES OF THE PARADISE LIVING COMPLAINT FOR DAMAGES g$222 g2S5s5 S22 TRUST DATED OCTOBER 6, 1997; 16 LEA & BRAZE ENGINEERING, INC., a Documents Served and Filed Concurrently California corporation; QUIROZ Herewith 17 CONSTRUCTION, INC., a California 1 Certificate of Merit [California Code of corporation; MICHAEL REPKA, an Civil Procedure § 411.35(b)(1)] 18 Individual; DELEON REALTY, INC., a California corporation; TOWN OF 19 PORTOLA VALLEY, a Public Entity; and Complaint Filed: December 13, 2023 DOES | through 110, inclusive, Trial Date: Not Set 20 Defendants. 21 22 Plaintiffs Greg Fair and Natalie Fair, in their capacities as Trustees of The Kona Trust 23 (hereafter collectively the “Trust” or “Plaintiffs”), allege as set forth below. 24 PRELIMINARY ALLEGATIONS 25 1 Plaintiffs are, and at all relevant times were, residents of the County of San Mateo, State of 26 California. 27 III 28 -l- PLAINTIFFS GREG FAIR AND NATALIE FAIR, TRUSTEES OF THE KONA TRUST’S, FIRST MENDED COMPLAINT FOR DAMAGES _ CASE NO. 23-CIV-05892 At all relevant times, Defendants William and Ruth Mainzer, in their capacities as Trustees of the Paradise Living Trust Dated October 6, 1997 (hereafter the “Defendants Mainzer” or “Mainzers”), were a resident of the County of San Mateo, State of California. The real property and improvements which are the subject of the above captioned matter is located at 199 Mapache Drive, Portola Valley, California 94028, and is hereinafter collectively referred to as the “Property". The design, construction, management, administrative, and other activities initiated, performed, and overseen by the Defendants Mainzer to improve the real property and erect a new custom home on the Property shall be collectively referred to the “Project”. 10 Defendant Michael Repka is an individual (hereafter referred to as “Defendant Repka” or 11 “Repka”) is, and was at all relevant times, a licensed real estate broker in the State of 12 California with his/her principal place of business in Palo Alto, Santa Clara County, ah Sue age 13 California. Defendant Repka at all relevant times acted as the real estate broker for gen Ban odgs 14 Defendants Mainzer. S2uo ease 2a Zeon 22 15 Defendant DeLeon Realty, Inc. is a California corporation (“Defendant Deleon” Sezges ze S