On August 17, 2016 a Exhibit,Appendix was filed involving a dispute between Aarons, Philip E., Arup North America Ltd., Balfour Beatty Infrastructure, Inc., Baumert, Richard, Boston Properties, Inc., Boston Properties Inc., A Delaware Corporation, Cementaid International Marketing Ltd., Central Concrete Supply Co., Inc., City And County Of San Francisco,, Clark-Hathaway Dinwiddie, A Joint Venture, Desimone Consulting Engineers, Llc, A Delaware, Dnd Construction, A California Joint Venture, Drill Tech Drilling & Shoring, Inc., Enclos Corp., Gpk & Associates, Handel Architects, Llp, A New York Limited, Jeffries, Christopher M., Jeffries, Sean, Kilroy Realty Corporation,, Kilroy Services Llc, A Delaware Limited Liability, Kowalczyk, Bryant, Kr 350 Mission Llc, A Delaware Limited Liability, Lovett, Philip H., Luciano, John, Millennium Partners Llc, A New York Limited, Millennium Partners Management, Llc, A New York, Mission Street Development Llc, Mission Street Development, Llc, Mission Street Holdings Llc, A Delaware Limited, Pacific States Environmental Contractors, Inc., Pelli Clarke Pelli Architects, Inc., Snyder, Donald Eugene, Snyder, Mary Potter, Symonds, Iii, William Thomas, Symonds, Melissa Lewis, The Millennium Tower Association, A California, Transbay Joint Powers Authority, Transbay Tower Llc, Transbay Tower Llc, A Delaware Limited Liability, Treadwell & Rollo, Inc., Subsequently Known By, Viking Drillers, Inc., Webcor Construction Lp,, Webcor Construction L.P. Dba Webcor Builders,, Webcor-Obayashi Joint Venture, Ykk Ap, Inc. Erroneously Sued As Ykk-App, Inc., Abbott, Chad, Aggarwal, Gautam, Arora, Anu Radha, Arora, Ravinder K., Assaf, Ben J., Assaf, Carrie Robin, Au, Winifred, Bloom, Ken, Bloom, Linda, Blue Pearl Sf, Llc, Bond, Samuel, Bouzid, Kais, Bradford, Richardson, Brown, Gordon, Brown, Jennifer, Brunetti, Jeffrey, Bwc Enterprises Llc, Caleb Realty, Llc, Camp, Eva Lum, Camsey, Martin, Chang, Carolyn, Chang, Jo-Tung Tu, Chang, Richard, Chintapatla, Kirti Rao, Choi, Julie, Chu, Kan Jenny, Cornali, Claudio, Cummings, Brian, Daly, Kathleen M, Darby Jr., Robert, David, Pamela H., Davies, Glyn, Davies, Judy, Desai, Anuradha, Desai, Manoj C., Dickstein, Howard, Duffy, Robin R., English, Jeannine, Fan, Alice Yu, Fancy Sky Company Ltd., Fan, Dr. Randall, Fanlo, Laura, Fanlo, Saturnino, Fu, Jiongzle, Fumarelli, Thomas, Gallus, Fay M., Garry, Timothy W., Gehring, Charles, Gehring, Christine, Golden Pearl Investment Ltd., Gondokusumo, Hendro, Gondokusumo, Rina, Grave, Emi R., Grave, Vladimir R., Grave, Yoshiko, Grippardi, Paul, Gu, Danyi, Herman, Jessica, Hinohara, Akie, Hinohara, Tomoaki, Holland, Michael A., Hong, Leong Milton Ka, Hormel, James C., Horn, Sabrina, Hsieh, Dr. Jing, Hsu, Caroline, Huang, Amy, Huang, Chi-Fu, Huang, Dean, Huang, Kung-Shaun Andrew, Hung, David, Johnson, James, Kaji, Dr. Devonna, Kamm, Irene Chan, Kamm, John T., Kao, Ian, Kelly, Michael King, Kim, Borah, Kim, Sang, King, Patrick, Kua, Lee Sah, Laiwala, Nadim, Laiwala, Norjehan, Laiwala, Sadrudin, Laiwala, Sarah, Lares, Adriel G, Lazar, Cheryl, Lee, Angela, Lee, Frank, Lee, Jason, Lee, Michelle, Lee, Veronica, Lehman, Laura S, Leung, Anselm Nai-Chung, Leung, Virginia, Lian, Elizabete Go Lian, Lichaytoo, Alexander, Lichaytoo, Barbara, Lichaytoo, Clifford, Lindley, Meriel, Liu, Cynthia B., Lor, Cynthia, Lum, Evonne, Lum, Jackson, Lum, Muriel, Macdonald, Elaine Lum, Maknawi, Eddy, Maui Peaks Corporation, On Behalf Of Themselves, Mayer, Nancy, Mayer, Steven, Mcmahon, Paul, Mellos, Faye A., Millennium 42A, Llc, Millennium 8D, Llc, Millennium Tower Association, Mi, Steve, Montana, Jennifer S, Montana Jr, Joseph Clifford, Ng, Lilian, Ngmii Llc, Nguyen, Michael, Nguyen, Tessa, Niemi, Patricia, Patel, Alpa, Patel, Dr. Namrata, Paulsson, Edward, Perkins, Tor Kristian, Peters, Jeffrey, Piser, Dr. Joel, Pitroda, Arpita, Pitroda, Salil, Potter, Mary, Properties Gb7, Llc, Rabsatt, Gokce, Rabsatt, Sidney, Rahn, Joseph W., Ramsey, Craig D., Reyer, Ruhee, Reyer, Thomas, Reynoso, Randall E., Riccitiello, John, Ruehle, Julie, Ruehle, William, Sanner, Richard, Santimauro, Lanelle, Santimauro, Michael, Saturnino, Fanlo, Sbk Global Llc, Schmit, Sandra S., Schweikert, Timothy, Sciarioni, Jeff, Shadduck, John Hayne, Sills, Blake R, Snyder, Amy V., Snyder,, Mary Potter, Soucy, Alan, Soucy, Sharon, Springer, Daniel, Stavropoulos, Nickolas, Stavropoulos, Patrina, Stull, Patrick, Stull, Sally, Subaiya, Thimaya, Sweet, Richard M., Tam, Kelly K.S., Tam, Teddy T.S., Tanny, Lauren, Testa, James, Tom, Yvette, Turgeon, Judith L., Upson, Paula A., Wayne, Carol, Wayne, Howard, Whitley, Dr. Richard, Winoto, Megawati, Winoto, Nagawidjaja, Wittlinger, Gwennie, Wittlinger, Lee, Wood, James, Wu, Benjamin, Xin, Jian, Ying, Xu Ming, Young, Kevin, Yuann, James, Yuann, Kevin, Yuann, Marie, Yuann, Michael, Yuann, Natalie, and Alameda-Contra Costa Transit District, Balfour Beatty Infrastructure, Inc., Cementaid International Marketing Ltd., City And County Of San Francisco, Desimone Consulting Engineers, Llc, A Delaware, Does 1-50, Inclusive, Does 1 Through 200, Inclusive, Does 1 Through 250, Does 1 To 20, Inclusive, Gpk & Associates, Kowalczyk, Bryant, Langan Engineering And Environment Services, Inc., Millenium Tower Association, Millennium Partners, A Partnership, Millennium Partners Llc, A New York Limited, Millennium Partners Management Llc, Millennium Tower Association, Mission Street Development, Llc, Mission Street Development Llc, A Delaware Limited, Mission Street Holdings Llc, Mission Street Holdings Llc, A Delaware Limited, Peninsula Corridor Joint Powers Board, Roes 1 Through 200, Inclusive, Symonds, Iii, William Thomas, Symonds, Melissa Lewis, The Alameda-Contra Costa Transit District, The City And County Of San Francisco, The Millennium Tower Association, The Millennium Tower Association, A California, The Peninsula Corridor Joint Powers Board, The State Of California, Department Transportation, Transbay Joint Powers Authority, Webcor Construction Lp,, for EMINENT DOMAIN in the District Court of San Francisco County.
For full print and download access, please subscribe at https://www.trellis.law/.
Please wait a moment while we load this page.
Preview
1 Daniel L. Rottinghaus, Esq., California State Bar No. 131949 Scott M. Mackey, Esq., California State Bar No. 222217 2 Seema N. Kadaba, Esq., California State Bar No. 304952 BERDING & WEIL LLP ELECTRONICALLY 3 2175 N. California Blvd., Suite 500 F I L E D Walnut Creek, California 94596 Superior Court of California, County of San Francisco 4 Telephone: 925/838-2090 Facsimile: 925/820-5592 04/30/2020 5 Clerk of the Court Allan Steyer, Esq., California State Bar No. 100318 BY: ANNIE PASCUAL Deputy Clerk 6 D. Scott Macrae, Esq., California State Bar No. 104663 STEYER LOWENTHAL BOODROOKAS 7 ALVAREZ & SMITH LLP 235 Pine Street, 15th Floor 8 San Francisco, California 94104 Telephone: (415) 421-3400 9 Facsimile: (415) 421-2234 10 Attorneys for Plaintiffs MAUI PEAKS CORPORATION, NGMII LLC, and IAN KAO 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF SAN FRANCISCO 14 15 LAURA S. LEHMAN, et al., Lead Case No. CGC-16-553758 16 Plaintiffs, SECOND SUPPLEMENTAL DECLARATION OF D. SCOTT MACRAE IN SUPPORT OF MOTION 17 v. FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; AND EXHIBITS 1-12 18 TRANSBAY JOINT POWERS AUTHORITY, et al., 19 Defendants. 20 And Related & Consolidated cases. 21 Date: This document applies to Time: 22 Location: Courtroom 303 Maui Peaks Corporation, et al. v. Mission 23 Street Development, et al. – CGC17-17- 560322 24 25 26 27 28 SECOND SUPPLEMENTAL DECLARATION OF D. SCOTT MACRAE IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 1668914.1 - MILLENNIUM.TOWER 1 I, Donald Scott Macrae, declare as follows 2 1. I am a member of the California State Bar and an attorney at Steyer Lowenthal 3 Boodrookas Alvarez & Smith, one of the two law firms representing the Plaintiffs and the 4 Settlement Class in Maui Peaks Corporation, et al. v. Mission Street Development, et al. – 5 CGC17-17-560322 (“the Maui Peaks class action”). I make this declaration based on personal 6 knowledge and if called and sworn as a witness could and would testify competently thereto. 7 2. Attached hereto as Exhibit 1 is a copy of the proposed Fourth Amended 8 Complaint, the filing of which has been stipulated to by the parties. 9 3. Class Plaintiffs’ expert appraiser is of the opinion that each of the pre-May 10, 10 2016 purchasers paid approximately 40% more for their units than the units were worth had the 11 sinking and tilting been disclosed. See Declaration of Eric Risberg, Ex. 13 to Supplemental 12 Macrae Declaration filed April 8, 2020. The Gross Settlement Amount, less the payments that 13 will be made to the Settlement Class Members who purchased after May 10, 2016, is 14 approximately 30% of the maximum recovery the Class Members who purchased prior to May 15 10, 2016 could have received under Mr. Risberg’s analysis. 16 4. The remedial repair of The Millennium Tower, which will be performed pursuant 17 to the Global Settlement Agreement, will increase the effective rate of recovery of Settlement 18 Class Members who still own units purchased before May 10, 2016. Clearly, fixing the 19 foundation will increase the value of the units and thereby decrease the losses caused by the 20 undisclosed sinking and tilting. While it is difficult to predict exactly how much the remedial 21 work will increase the value of the units and thus decrease potential diminution in value damages, 22 it is very reasonable to conclude that unit values will increase because of the $100 million retrofit 23 which fixes the sinking and tilting that caused the diminution in value in the first place. 24 Accordingly, Plaintiffs suggested that the remedial repair “could lessen the diminution loss by as 25 much as half (down to 20%).” Supplemental Brief filed April 8, 2020 at 19:1-3. Although there 26 is not yet any hard evidence of how much the remedial repairs will increase the value of the 27 units, Plaintiffs’ statement that such repairs will potentially reduce the diminution loss by as much 28 as half was based on information Class Counsel have received about the Upgrade including the 2 SECOND SUPPLEMENTAL DECLARATION OF D. SCOTT MACRAE IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT VAL 1668914.1 - MILLENNIUM.TOWER 1 opinion of real estate expert, Stephen Roach, who has analyzed the Upgrade and its likely effect 2 on the value of units in The Millennium Tower. 3 5. A copy of the Long Form Class Notice that has been revised according to the 4 Court’s instruction is attached hereto as Exhibit 2. 5 6. A copy of the revised Class Action Settlement Agreement is attached hereto 6 attached as Exhibit 3. 7 7. A copy of the revised Claim Form is attached hereto as Exhibit 4. 8 8. An example of a sample Claim Form including prepopulated information is 9 attached hereto as Exhibit 5. 10 9. Copies of the post card and email claim filing reminders, which have been 11 updated to include the additional information requested by the Court are attached hereto as 12 Exhibits 6 and 7. 13 10. A copy of the [Revised Proposed] Order Granting Preliminary Approval of Class 14 Action Settlement is attached hereto as Exhibit 8. 15 11. Attached hereto as Exhibit 9 is a true and correct copy of relevant pages of the 16 transcript for the deposition of Richard Baumert on July 12, 2018, reflecting his testimony that he 17 was the Vice President of MP Marketing of CA, LLC, and oversaw the sales and marketing 18 efforts of units in The Millennium Tower on behalf of Defendants Mission Street Holdings LLC. 19 12. Attached hereto as Exhibit 10 is a true and correct copy of relevant pages of the 20 transcript for the deposition of Jennifer Iles on August 3, 2018, reflecting her testimony that she 21 was a sales executive employed of MP Marketing of CA, Inc. and acted as the broker or record 22 for the sale of units in The Millennium Tower. 23 13. Attached hereto as Exhibit 11 is a true and correct copy of relevant pages of the 24 transcript for the deposition of Carrie Leung on August 7, 2018, reflecting her testimony that she 25 worked as a salesperson for MP Marketing of CA, LLC for the sale of units in The Millennium 26 Tower and assembled information for disclosure to prospective purchasers. 27 14. Attached hereto as Exhibit 12 is a true and correct copy of relevant pages of the 28 transcript for the deposition of Bryant Kowalczyk on September 27, 2018, reflecting his 3 SECOND SUPPLEMENTAL DECLARATION OF D. SCOTT MACRAE IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT VAL 1668914.1 - MILLENNIUM.TOWER 1 testimony that he worked as a salesperson for MP Marketing of CA, Inc. and sold units in The 2 Millennium Tower for the Developer Defendants. 3 I declare that the foregoing is true and correct under penalty of perjury under the laws of 4 the State of California. Executed on this 30th day of April 2020 in San Diego, California. 5 ______________________ D. Scott Macrae 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 SECOND SUPPLEMENTAL DECLARATION OF D. SCOTT MACRAE IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT VAL 1668914.1 - MILLENNIUM.TOWER EXHIBIT 1 1 Daniel L. Rottinghaus, Esq., California State Bar No. 131949 Scott M. Mackey, Esq., California State Bar No. 222217 2 Seema M. Kadaba, Esq., California State Bar No. 304952 BERDING & WEIL LLP 3 2175 N. California Blvd., Suite 500 Walnut Creek, California 94596 4 Telephone: 925/838-2090 Facsimile: 925/820-5592 5 Allan Steyer, Esq., California State Bar No. 100318 6 D. Scott Macrae, Esq., California State Bar No. 104663 STEYER LOWENTHAL BOODROOKAS 7 ALVAREZ & SMITH LLP 235 Pine Street, 15th Floor 8 San Francisco, California 94104 Telephone: 415/421-3400 9 Facsimile: 415/ 421-2234 10 Attorneys for Plaintiffs MAUI PEAKS CORPORATION, IAN KAO and NGMII LLC 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 IN AND FOR THE COUNTY OF SAN FRANCISCO 14 15 LAURA S. LEHMAN, an individual, et al., LEAD CASE NO. CGC-16-553758 16 Plaintiffs, Assigned for All Purposes to Judge Charlene P. Kiesselbach, 17 v. Dept. 318 18 TRANSBAY JOINT POWERS COMPLEX LITIGATION AUTHORITY, et al., CLASS ACTION 19 Defendants. 20 PLAINTIFFS MAUI PEAKS CORPORATION, IAN KAO, AND 21 _____________________________________ NGMII LLC's [PROPOSED] FOURTH AMENDED COMPLAINT FOR 22 This document applies to: DAMAGES, SPECIFIC PERFORMANCE, Maui Peaks Corporation, Ian Kao, and AND DECLARATORY RELIEF 23 NGMII LLC v. Mission Street Development, LLC, et al., (CGC-17-560322) 24 25 26 27 / 28 BERDING & WEIL LLP 2175 North California Blvd., St.e 500 1 Walnut Creek, California 94596 FOURTH AMENDED COMPLAINT 1 MAUI PEAKS CORPORATION, IAN KAO, Case No. CGC-17-560322 and NGMII LLC, on behalf of themselves and 2 all others similarly situated, PLAINTIFFS MAUI PEAKS 3 Plaintiffs, CORPORATION, IAN KAO, AND NGMII LLC's FOURTH AMENDED 4 vs. COMPLAINT FOR DAMAGES, SPECIFIC PERFORMANCE, AND 5 MISSION STREET DEVELOPMENT LLC, a DECLARATORY RELIEF Delaware Limited Liability Company; 6 MISSION STREET HOLDINGS, LLC, a Delaware Limited Liability Company; 7 TRANSBAY JOINT POWERS AUTHORITY, a California public entity, and 8 DOES 1 through 100, 9 Defendants. / 10 11 Plaintiffs MAUI PEAKS CORPORATION, IAN KAO, and NGMII LLC (collectively 12 “Plaintiffs”) on behalf of themselves and all others similarly situated (hereinafter referred to as 13 Class or Class Members), complain and allege against Defendants as follows: 14 NATURE OF THE ACTION 15 1. This is a class action against Defendants MISSION STREET DEVELOPMENT 16 LLC and MISSION STREET HOLDINGS, LLC (“Developer Defendants”), TRANSBAY JOINT 17 POWERS AUTHORITY (“TJPA”), and DOES 1 through 100, inclusive, on behalf of all owners 18 of residential condominium interests at The Millennium Tower, located at 301 Mission Street in 19 San Francisco, California. 20 2. The Millennium Tower consists of three residential condominium projects and 21 common areas contained within a tower building and a mid-rise building. It is sinking into the 22 ground and leaning, having experienced cumulative differential vertical displacement (sinking) of 23 over seventeen (17) inches and horizontal displacement (leaning) of over twelve (12) inches. 24 The Developers 25 3. Developer Defendants had a duty as sellers of condominium units and promoters of 26 the corporate residential associations to which Plaintiffs and the Class Members must belong to 27 disclose all material information affecting the value or desirability of buying a condominium 28 interest in The Millennium Tower, yet at the time the Developer Defendants sold such BERDING & WEIL LLP 2175 North California Blvd., St.e 500 2 Walnut Creek, California 94596 FOURTH AMENDED COMPLAINT 1 condominium interests (units and memberships in the corporate residential associations) to 2 Plaintiffs and other original purchasers, they failed to disclose their knowledge that The 3 Millennium Tower (a) was designed to sink up to five (5) inches, (b) had sunk approximately ten 4 (10) inches when sales commenced, and (c) was continuing to sink and they were doing nothing 5 about it. 6 4. With the purchase of a unit, Plaintiffs and all Class Members were required to 7 become members of and fund one of three corporate residential associations created to and charged 8 with managing, maintaining, and operating such association’s residential common areas within The 9 Millennium Tower. 10 5. From about March 30, 2009 until May 10, 2016, Developer Defendants, 11 collectively, wrongfully and in breach of their respective duties of care, formulated, designed, 12 developed, marketed, and sold fee title to four hundred nineteen (419) residential condominium 13 units and undivided fractional interests as tenants-in-common in their residential common area, 14 together with a membership interest in one of three different corporate residential associations,1 15 which are themselves the members of a separate corporate association created by Developer 16 Defendants called the Millennium Towers Association (the “Center Association”), using a 17 defective FINAL SUBDIVISION PUBLIC REPORT CONDOMINIUM (“Public Report”), in violation of the 18 Subdivided Lands Law (Section 11000 – 11200 of the State of California Business & Professions 19 Code) and otherwise failing to make full disclosure that the condominium interests in these 20 ‘projects’ being transferred were contained within a structure that was designed to sink up to five 21 (5) inches, that was sinking and had sunk as much as ten (10) inches at the time sales were made, 22 and then from such time of sales concealed from disclosure the sinking of the structure to in excess 23 of sixteen (16) inches, thereby allowing the original transferees to pass along similarly defective, 24 incomplete, and inadequate disclosures to successor transferees. 25 26 1 The three residential associations or “projects” were named The Residences at Millennium Tower (covering 191 condominium units located on floors 3 through 25, inclusive, in the tower building), The City Residences at 27 Millennium Tower (covering 53 condominium units located on floors 3 through 11, inclusive, in the mid-rise building) and, The Grand Residences at Millennium Tower (covering 175 units located on floors 26 through 60, inclusive, 28 located in the tower building). BERDING & WEIL LLP 2175 North California Blvd., St.e 500 3 Walnut Creek, California 94596 FOURTH AMENDED COMPLAINT 1 6. Developer Defendants induced Plaintiffs and Class Members into buying their 2 condominium residences and taking membership in the aforesaid corporate residential associations 3 by improperly and unfairly withholding and/or omitting to provide material information that The 4 Millennium Tower, in which these condominium interests were located, was sinking and 5 continuing to sink, vertically and differentially, when exposed to normal use, and that Developer 6 Defendants were doing nothing about it. 7 7. Both Developer Defendants owed statutory and common law duties of disclosure to 8 Plaintiffs and the Class Members and are each primarily liable for fraudulent nondisclosure and 9 violation of California Business & Professions Code Section 17200, et seq., (“the UCL”) based on 10 their own failures to disclose. Because Mission Street Development LLC and Mission Street 11 Holdings LLC functioned as a single business enterprise and were alter egos of one another, both 12 are also secondarily liable for the nondisclosures of the other and also liable for the other’s violation 13 of the UCL. 14 The TJPA 15 8. TJPA is responsible for the Transbay Program that consists of construction of the 16 Transbay Transit Center (hereinafter referred to as the “Transit Center”), which lies south of and 17 adjacent to The Millennium Tower. Prior to the Developer Defendants' sale of the condominium 18 interests at The Millennium Tower, TJPA entered into an easement agreement (the “Easement 19 Agreement”) with the Developer Defendants for both a temporary and permanent easement over/on 20 property that serves as the foundation for The Millennium Tower. The purpose of the Easement 21 Agreement was to allow for excavation of, and construction on and under, portions of The 22 Millennium Tower to accommodate the design and construction of a buttress improvement to 23 provide lateral and subjacent support to The Millennium Tower. The Easement Agreement 24 contemplated that such support system and the Transit Center would be designed and constructed 25 to stabilize the soil beneath The Millennium Tower, prevent the material movement and/or 26 settlement of the Millennium Tower, and provide for the structural support, integrity and safety of 27 The Millennium Tower during and after TJPA’s construction of the Transit Center. In partial 28 consideration for the easement, TJPA agreed to indemnify and hold harmless “transferees” of BERDING & WEIL LLP 2175 North California Blvd., St.e 500 4 Walnut Creek, California 94596 FOURTH AMENDED COMPLAINT 1 Developer Defendants such as Plaintiffs and the Class Members from and against “all…losses 2 (including diminution in value)” that arise with or without fault from the exercise or nonexercise 3 of rights and obligations under the easement granted by Developer Defendants to TJPA over and 4 on the property upon which The Millennium Tower is founded. 5 9. More specifically, when TJPA entered into the Easement Agreement, it agreed to 6 indemnify all owners of units at The Millennium Tower as “transferees” against all losses 7 (including but not limited to diminution-in-value in their interest), damages, costs, and expenses, 8 including but not limited to, expert fees and reasonable attorneys’ fees and costs and liabilities of 9 whatever kind or nature which arise from the occupancy or use of the aforesaid easement by TJPA 10 or the exercise of their rights under or pursuant to said easement, or the performance of, or failure 11 to perform, the duties established by the easement, arising out of injury to property or interests in 12 property of what formerly belonged to the Developer Defendants or to TJPA, or any third party. 13 The promised indemnity is first-party provided, it is not limited in amount, it does not require proof 14 of any negligent performance, and TJPA gave a release and Civil Code section 1542 waiver to the 15 Developer Defendants knowing that it was accepting the easement property in its “as is” condition 16 with the understanding at the time that construction and dewatering of The Millennium Tower was 17 complete, the piles providing foundational support were not driven to bedrock, the foundation was 18 designed to sink up to five inches and had sunk beyond that depth, and that TJPA would be 19 dewatering the surrounding soil as part of constructing the aforesaid support system and driving its 20 own buttress piles to bedrock; it specifically, with knowledge and foresight, undertook to 21 indemnify against the risk of injury that manifested or exacerbated injury to the interests of 22 Plaintiffs and the Class Members. 23 10. The Easement Agreement, which contains the indemnity and hold harmless 24 agreement given by TJPA, is recorded against every owner’s chain-of-title. 25 Injury 26 11. As a result of the revelation that The Millennium Tower was designed to sink, that 27 its piles were not driven to bedrock, and that it had already sunk more than it was designed to sink 28 for the life of the building, and that the building suffers from cracked walls and floors and other BERDING & WEIL LLP 2175 North California Blvd., St.e 500 5 Walnut Creek, California 94596 FOURTH AMENDED COMPLAINT 1 tangible property damage, together with continued differential sinking, a storm of adverse media 2 attention focused upon The Millennium Tower and besmirched its valuable reputation and caused 3 diminution-in-value to all who were then holding an interest in said condominiums. 4 12. The differential sinking of The Millennium Tower has resulted in property damages 5 with cracking in the walls of the garage, visible separation of improvements at grade, improperly 6 sloped drain waste pipes, and tilting of the structure. With the sinking ongoing, these resulting 7 damages are continuing to accrue, together with the loss of full use and enjoyment and further 8 diminished value in the condominium interests held. 9 13. Currently, and/or with continued sinking, drain waste lines and other utilities below 10 grade have fractured or will fracture, causing raw sewage to disperse into the soil underneath the 11 building to interrupt complete service to the units; in an earthquake, the extent of resistance to 12 damage from seismic activity is now unknown and was wrongfully omitted from disclosure. These 13 matters are further contributing to the diminished value of the condominium interests sold to 14 Plaintiffs and the Class Members. 15 14. At the time the Easement Agreement was executed, the Developer Defendants had 16 completed construction and dewatering of the soil beneath The Millennium Tower. At that time, 17 The Millennium Tower had already sunk eight (8) inches. Thereafter, while TJPA was exercising 18 its rights under and pursuant to the Easement Agreement, including dewatering the underlying soil 19 and performing construction work, the building sank another nine (9) inches to reach a cumulative 20 settlement sum of seventeen (17) inches. 21 15. By a series of press releases culminating in a press release, dated October 4, 2016, 22 TJPA admitted that it was aware of the sinking of The Millennium Tower and that it was continuing 23 to sink – and TJPA knew of such sinking – while TJPA was performing its work and benefitting 24 from the Easement Agreement to finish its work completing construction of the Transit Center. 25 16. As a result of Developer Defendants’ conduct and TJPA indemnity agreement that 26 appears in the chain-of-title of every owner at The Millennium Tower, Plaintiffs and the Class 27 Members have suffered damages and have over-paid their property taxes, are having to pay inflated 28 unit assessments, and are entitled to relief, including compensation for diminution-in-value, jointly BERDING & WEIL LLP 2175 North California Blvd., St.e 500 6 Walnut Creek, California 94596 FOURTH AMENDED COMPLAINT 1 and severally, by the Defendants sued herein. 2 JURISDICTION AND VENUE 3 17. This action is brought under California Code of Civil Procedure Section 382 to 4 recover damages, specific performance, and to obtain declaratory and other equitable relief for 5 injury that Plaintiffs and the other members of the Class have sustained due to the Developer 6 Defendants’ unlawful conduct and TJPA’s contractual obligation, as alleged herein. 7 18. This Court has personal jurisdiction over the defendants because each of them does 8 business in the State of California, and the claims asserted herein arise from conduct occurring in 9 California. 10 19. Venue is proper in the City and County of San Francisco, because some, if not all, 11 defendants do business in San Francisco. Venue is further proper in the City and County of San 12 Francisco because the acts and real property giving rise to the claims asserted herein were 13 committed and are located, respectively, in San Francisco. 14 PARTIES 15 20. Plaintiff MAUI PEAKS CORPORATION is a Panamanian corporation, which does 16 business in the State of California, including the County of San Francisco, and it owned a 17 condominium interest in The Millennium Tower. It purchased its condominium interest in The 18 Millennium Tower from the Developer Defendants. 19 21. Plaintiff IAN KAO is an individual residing in China who owns a condominium 20 interest in The Millennium Tower. He purchased his condominium interest in The Millennium 21 Tower from the Developer Defendants. 22 22. Plaintiff NGMII LLC is a Delaware limited liability company, which does business 23 in the State of California, including the County of San Francisco, and it owns a condominium 24 interest in The Millennium Tower. It purchased its condominium interest in The Millennium Tower 25 from the Developer Defendants. 26 23. Defendant MISSION STREET DEVELOPMENT LLC (hereinafter referred to 27 “MSD”) is a Delaware limited liability company doing business in the State of California, including 28 the County of San Francisco. MSD was the developer of The Millennium Tower, caused the Public BERDING & WEIL LLP 2175 North California Blvd., St.e 500 7 Walnut Creek, California 94596 FOURTH AMENDED COMPLAINT 1 Reports and the Property Disclosure and Information Statements to be published and disseminated 2 to Plaintiffs and the Class Members for the purpose of selling the condominium interests at The 3 Millennium Tower, caused the corporate residential associations to be created as required for the 4 sale of the condominium units at The Millennium Tower, and caused the original sale of all the 5 condominium units at The Millennium Tower. MSD is a single-member entity directed and 6 controlled by Defendant Mission Street Holdings LLC. For the wrongful acts alleged herein as 7 committed by MSD, it is further alleged that for each and every wrongful act that the same was 8 directly ordered, authorized or participated in by Defendant Mission Street Holdings LLC. 9 24. Defendant MISSION STREET HOLDINGS LLC (hereinafter referred to as 10 “MSH”) is a Delaware limited liability company doing business in the State of California, including 11 the County of San Francisco. MSH caused the incorporation of and became the sole member of 12 MSD with the right, ability and duty to control the activities of MSD. MSH directly ordered, 13 authorized, concurred with, consented to, or participated in the wrongful acts of MSD such that the 14 wrongful acts of MSD were the result of the wrongful acts of MSH and vice versa, since MSH was 15 the sole-member that owned the entire controlling interest of MSD, it was thereby the sole officer 16 and director of MSD, and it was active in the management of MSD at all times material to the 17 wrongful acts alleged herein when it knew or should have known that the acts of MSD were 18 wrongful and unlawful. 19 25. Defendant TJPA is a public entity with primary jurisdiction over all matters 20 concerning the financing, design, development, construction, and operation of the Transit Center. 21 TJPA is a joint exercise of powers authority created by the City and County of San Francisco, the 22 Alameda-Contra Costa Transit District, the Peninsula Corridor Joint Powers Board, and Caltrans 23 (ex officio). TJPA is managed by TJPA staff and is overseen by a six-member Board of Directors. 24 26. The true names and capacities, whether individual, corporate, associate, or 25 otherwise, of the Defendants named herein as DOE 1 through DOE 100 are unknown to Plaintiffs 26 at this time. Plaintiffs are informed and believe and thereon allege that DOES 1 through 50, like 27 Developer Defendants (and collectively referred to herein as “Developer Defendants”), were the 28 owners, developers, designers, builders and sellers of The Millennium Tower and promoted the BERDING & WEIL LLP 2175 North California Blvd., St.e 500 8 Walnut Creek, California 94596 FOURTH AMENDED COMPLAINT 1 corporate residential associations to which every condominium buyer would become a member. 2 Plaintiffs are informed and believe and thereon allege that DOES 51 through 100, together with 3 TJPA (and collectively referred to as “TJPA”), developed, planned, improved, designed, and 4 constructed the Transit Center. Plaintiffs sue said Defendants DOE 1 through 100 by such fictitious 5 names pursuant to California Code of Civil Procedure section 474, and will amend this Complaint 6 to show their true names and capacities when the same have been ascertained. Plaintiffs are 7 informed and believe, and based on such information and belief allege, that each of said Defendants 8 DOE is legally responsible in some manner for the events and happenings 9 referred to in this Complaint and/or also unlawfully caused the injuries to Plaintiffs and the Class 10 as alleged herein. 11 27. Plaintiffs are informed and believe, and based on such information and belief allege, 12 that at all times pled in this Complaint, Defendants, including DOES 1 through 100, and each of 13 them, were the agents and/or employees of the other, and in doing the things alleged herein, said 14 Defendants were acting in concert or conspiracy with one another and within the course and scope 15 of their agency and/or employment. 16 SECONDARY LIABILITY 17 28. MSH and MSD are collectively secondarily liable as a single enterprise for the 18 direct acts and omissions of each other. Although they are technically two legal entities, “there is 19 but one enterprise,” and this enterprise “has been so handled that it should respond, as a whole, for 20 the debts of certain component elements of it.” See Las Palmas Associates v. Las Palmas Center 21 Associates, 235 Cal.App.3d 1220, 1248 (1991). Accordingly, the Court should recognize, for the 22 purposes of imposing liability, an entity comprising the assets and liabilities of MSH and MSD and 23 charge it with the collective liabilities of both. MSH and MSD’s secondary liability as a single 24 enterprise is based at least upon the following factual allegations: 25 // 26 a. The use of MSH and MSD as mere shells, instrumentalities, and conduits 27 for a single purpose—the Millennium Tower; 28 b. The use by MSH and MSD of the same offices and business locations; BERDING & WEIL LLP 2175 North California Blvd., St.e 500 9 Walnut Creek, California 94596 FOURTH AMENDED COMPLAINT 1 c. The employment by MSD and MSH of the same employees and attorneys; 2 d. The failure to adequately capitalize MSD and MSH; 3 e. The disregard of legal formalities and the failure to maintain arm’s length 4 relationships between MSD and MSH; 5 f. The concealment of the identity and specific responsibilities of MSD and 6 MSH; 7 g. The use of the component entities of the single enterprise to shield against 8 liability of the other component entities of the single enterprise; 9 h. The fact that adherence to the fiction of a separate corporate existence of 10 MSD and MSH would promote injustice under these circumstances; and 11 i. The fact that throughout the entire period of development, from the concept 12 of The Millennium Towers development in the late 1990s to the sales and management beginning 13 in 2009, MSD and MSH have acted as a single enterprise and reaped hundreds of millions of dollars 14 in revenue as a single enterprise. 15 29. As an alternative to the theory of single enterprise liability alleged against MSD and 16 MSH, Plaintiffs allege that MSD and MSH are secondarily liable as alter egos of one another. 17 MSD and MSH were at all times alter egos of one another because a unity of interest and ownership 18 existed between each of them, and adherence to the fiction of separate corporate existence would 19 promote injustice under the circumstances. MSH and MSD’s alter ego liability is based at least 20 upon the following factual allegations: 21 a. MSH dominated and controlled MSD; 22 b. MSD was a mere shell and conduit for MSH’s affairs; 23 c. MSH caused the incorporation of and became the sole member of MSD with 24 the right, ability and duty to control the activities of MSD; 25 // 26 d. MSH directly ordered and authorized the wrongful acts of MSD such that the 27 wrongful acts of MSD were the result of the wrongful acts of MSH and vice versa, as MSH was 28 the sole-member that owned the entire controlling interest of MSD, it was thereby the sole officer BERDING & WEIL LLP 2175 North California Blvd., St.e 500 10 Walnut Creek, California 94596 FOURTH AMENDED COMPLAINT 1 and director of MSD; 2 e. MSH and MSD used the same offices and business locations; 3 f. MSD and MSH employed the same employees and attorneys; 4 g. The assets of MSD and MSH were commingled in the development of The 5 Millennium Tower; 6 h. MSD and MSH were inadequately capitalized, which makes each of them 7 potentially incapable of satisfying a judgment should Plaintiffs prevail in this action; 8