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PATTON & SULLIVAN LLP
PLEASANTON, CA
Randy Sullivan, Esq. (SBN 229326)
Ralph Kokka, Esq. (SBN 143519)
Dylan R. William, Esq. (SBN 282123) ELECTRONICALLY
PATTON & SULLIVAN LLP FILED
6600 Koll Center Parkway, Suite 250 Superior Court of California,
Pleasanton, California 94566-8058 Coun of Sar aneee
925-600-1800 Phone 09/13/2016
rs Clerk of the Court
925-600-1802 Fax BYDAVID YUEN
tandy@pattonsullivan.com Deputy Clerk
talph@pattonsullivan.
dylan@pattonsullivan.
Attorneys for Defendants
PAUL HEMMING, WENDY HEMMING and
55 NATOMA LLC
Attorneys for Cross-Complainant
WENDY HEMMING, an individual, and
WENDY HEMMING, individually and on
behalf of the derivative claims of PANTHEON
SF, LLC
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCSICO
HOWARD/FIRST, LLC, a Delaware Case No. CGC 15-547246
limited liability company,
[Unlimited Jurisdiction]
DISCOVERY
DEFENDANT/CROSS-COMPLAINANT
PAUL HEMMING, an individual, WENDY WENDY HEMMING’S REQUEST FOR
Plaintiff,
v.
HEMMING, an individual; 55 NATOMA JUDICIAL NOTIC!
LLC, a Washington limited liability -
company; and DOES 1 through 50, DATE: October 2016
inclusive, TIME: 9:00 a.m.
DEPT.: 302 (Hon. Harold Kahn)
Defendants.
Complaint Filed: August 7, 2015
Cross-Complaint Filed: October 30, 2015
AND RELATED CROSS ACTION.
Pursuant to sections 452(d) and 453 of the California Evidence Code, Defendants/Cross-
Complainant Wendy Hemming (hereinafter “Hemming”) hereby requests that this Court take
judicial notice of the following:
1. Plaintiff's complaint filed on August 7, 2015 attached hereto as Exhibit A; and
My
DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S REQUEST FOR JUDICIAL NOTICE 1
No. CGC 15-54724628
PATTON & SULLIVAN LLP
PLEASANTON, CA
2. Defendant/Cross-Complainant’s First Amended Cross-Complaint filed on
November 23, 2015 attached hereto as Exhibit B.
Dated: September |Z-, 2016
PATTON & SULLIVAN LLP
pyr been bees
RANDY SULLIVAN
RALPH KOKKA
DYLAN R. WILLIAMS
Attorneys for Defendants
PAUL HEMMING, WENDY HEMMING and!
55 NATOMA LLC
Attorneys for Cross-Complainant
WENDY HEMMING, an individual, and
WENDY HEMMING, individually and on
behalf of the derivative claims of PANTHEO!
SF, LLC
DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S REQUEST FOR JUDICIAL NOTICE
No. CGC 15-547246<
&
ee
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aRETR TNE METER MS IEEE EAGLE TRIE RUE TERT
HN UCANGIONN
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Aug-07-2015 2:05 pm
Case Number: CGC-15-547246
Filing Date: Aug-07-2015 1:57
Filed by: GARY FELICIANO
Juke Box: 001 Image: 05024821
COMPLAINT
HOWARD/FIRST PROPERTY, LLC, A DELAWARE LIMITED VS. PAUL HEMMINGi
ET AL
001005024821
Instructions: |
Please place this sheet on top of the document to be scanned.© SUM-100
SUMMONS FOR COURT USE ONLY
(CITACION JUDICIAL) fenton USO eE Le
NOTICE TO DEFENDANT:
(AVISO AL DEMANDADO): : We
aul Hemming, an individual; Mendy Hemming, an individual;
55 Natoma, C,.a Washington limited liability company; and
Does | through 50, inclusive
YOU ARE BEING SUED BY PLAINTIFF:
(LO ESTA DEMANDANDO ELDEMANDANTE):
loward/First Property, LLC, a Delaware limited liability company
NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the Information
below.
‘You have 30 CALENDAR DAYS after this summons and legal papers ate served on you to file a written response at this court and have @ copy
‘served on the plaintiff. A fetter or phone call will not protect you, Your written response must be in proper tegal form if you want the court to hear your
case, There may be a court form that you can use for your rasponse, You can find these court forms and more Information at the California Courts
Online Self-Help Center (www.courtinfo.ca.gov/selthelp), your county law library, oF the courthouse nearest you. If you cannot pay the fling fee, ask
‘the court clerk for @ foe waiver form. if you do not file your response on time, you may lose the case by default, and your wages, money, and property
may be taken without further warning from the court.
There are other legal requirements. You may want to call an attorney right away. If you do not know an attomey, you may want to call an altorney
referral service. If you cannot afford an attomey, you may be eligible for free legal services fram a nonprofit legal services program. You can tocate
these nonprofit groups at the California Legal Services Web site (www./awhelpcaliforia.org), the California Courts ‘Online Self-Help Center
(www.courtinfo.ca, gov/salfhelp), of by contacting your local court or county bar association. NOTE: Tha court has a statutory lien for waived fees and
‘costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court wilt dismiss the case.
JAVISO! Lo han demandado, Sino responde dentro de 30 dias, la corte puede decidir en su contra sin esouchar su versién. Lea la informacién 8 |
continuacion. |
Tiane 30 DIAS DE CALENDARIO después de que fe entrequen esta citacién y papales legates para prosontar una respuesta por escrito en esta
corte y hacer que se entregue una copie af demandente, Una carta o una llamada telefénica no fo protegen. Su respuesta por escrito tone que estar
en formato legal correcto si desea que procesen su caso en (a corte. Es posibla que haya un formulario que usted pueda usar pare su respuesta.
Puede encontrar estos formularies de la corte y més informacién en ef Centro de Ayuda de fas Cortes de California (www.sucorte.ca.gov), en la
biblioteca de leyes de su condado © en le corte que le quede més cerca. Sino pueda pagar la cuote de presentaci6n, pida af secretario de fa corte
que le dé un formulerio de exencién de pago de cuotas. $1 no presonta su respuesta a tiempo, puede perder el caso por Incumplimiento y la corte lo}
|podré quitar su sueldo, dinero y blenes sin més advertencia.
‘Hay otros requisitos legeles, Es recomendable que lame # un abogado inmediatamente. Si no conoce a un abogado, puede Hamar 6 un serviclo de
remisién a abogados. Si no puede pagar e un abogado, os posible que cumpla con los requisitos para obtener servicios legates gratultos de un
programa de servicios legales sin fines de luoro. Puede encontrar estos grupos sin fines de lucro en et sitio web de California Legal Services,
(www.lawhetpcalifornia.org), en ef Centro de Ayuda de las Cortes de Callfomia, (www.sucorte.ca.gov) 0 poniéndose en contacto con le corte oe!
colegio de ebogados locales. AVISO: Por ley, la corte tiene derecho a rectamar fas cuotas y los costos exentos por Imponer un gravamen sobre
cualquier recuperacién de $10,000 6 més de valor recibida mediante un acuerdo 0 una concesién de arbltraje en un caso de derecho civil. Tiene que
‘ef gravamen de la corte antes do que fa corte pueda desechar of caso.
The name and address of the court is: NUMBER (Neer
€ nombre y direccién de la corte oe) ee .
uperior Court of the State of California, County of San Francisco
400 McAllister Street
San Francisco, CA 94102
The name, address, and telephone number of plaintiff's attorney, or plaintiff without an attorney, is:
EI nombre, ta direccién y el numero de teléfono del abogado del demandante, o del demandante quo no tiene abogado, es):
ts E i iden Locher Turner Senet & Wittbrodt LLP
eodore L. Senet, Esq. / Jessica R. Moore, Esq. i
1880-Century Park East, 12th Floor (310) 552-3400
Los Angeles, CA 90067 7 7 oe
DATE: , CLERK OF THE Clerk, by Na RY ELENA! D9,
Fecney ‘AUG 07 2015 OFTHE GOURT Se ty . guns)
rp ‘service of this summons, use vice oF Summons (form POS-010).)
(Para prueba de entrega de esta citacién use el formulario Proof of Service of Summons, (POS-010)).
NOTICE TO THE PERSON SERVED: You are served
4 A as an individual defendant.
2 as the person sued under the fictitious name of (specify): BY E AX
I)
, 3 Cl) on behalf of (specify):
under: CCP 416.10 (corporation) CCP 416.60 (minor)
CCP 416.20 (defunct corporation) CGP 416.70 (conservatee)
CCP 416.40 {association or partnership) ‘CCP 416.90 (authorized person)
other (specify):
4. (} by personal delivery on (date):
SUUNONS Page tof
Fea Use ‘Coils of Gi Pronedure 8§ 412 20, 465
Saeeae ts Morin Deans :
TH Fa Howard/First Property -~ 5081-002Gipss GIDEN LOCHER TURNER SENET & WITTBRODT LLP
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8
Theodore L., Senet, Esq. (CSB # 082788)
isenet@gibbsgiden.com
F
Jessica iti Esa. (CSB # 272733)
jrmoore iden.com Superior Court of California
‘GIBBS | LOCHER TURNER ounty of San Francisco
SE TTBRODT LLP.
a Pa i ce AUG 07 2015
; rBee a CLERK 2
Telephone (310) gente PONG Fax ioy 552-0805 oy Hi OF The COURT
. Attormeys for Plaintiff Deputy Cer
HOWARD/FIRST PROPERTY, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO, CIVIC CENTER COURTHOUSE
HOWARD/FIRST PROPERTY, LLC, a
Delaware limited liability company,
Plaintiff,
Vv.
PAUL HEMMING, ap tials 4S HATOMA
HEMMING.
tLe. a Wa fF henited liability
comipany; and. SES 1 through ti
inclusive,
Defendants.
case No-O GC 15- ~5 47246
Department
(Unlimited Jurisdiction]
COMPLAINT FOR DAMAGES AND
FOR DECLARATORY RELIEF
BY FAX
HOWARD/EIRST PROPERTY, LLC, a Delaware limited liability company
‘|| (hereinafter “Plaintiff” or “HOWARD/FIRST”), complains and alleges as follows:
lL. At all relevant times, Plaintiff HOWARD/FIRST, a Delaware limited liability
| company, was the owner of certain real property located at 524 Howard Street, City of San
Francisco, County of San Francisco (hereinafter the “524 Howard Street Property”).
ut
Mit
- : 1
COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF
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2. Plaintiff is informed and believes and based thereon alleges that Defendant
PAUL HEMMING is an individual and a resident of the State of California, County of San
Francisco, doing business in the County and City of San Francisco, State of California.
3. Plaintiff is informed and believes and based thereon alleges that Defendant
WENDY HEMMING is an individual and a resident of the State of California, County of
San Francisco, doing business in the County and City of San Francisco, State of California.
4, Plaintiff is informed and believes and based thercon alleges that Defendant 55
NATOMA LLC (hereinafter “55 NATOMA”) is a Washington State limited liability
company, which is owned and controlled by Defendants WENDY HEMMING and PAUL
HEMMING, and is doing business in the County and City of San Francisco, State of
California.
5. Plaintiff is informed and believes and based thereon alleges that Defendants
were and are doing business in the County of San Francisco, State of California, that the real
properties involved in this action are located within said county and state, and that the
contracts alleged herein were made in said county and state.
6. Defendants DOES 1 through 50, inclusive, are sued herein under fictitious
names, their true names and capacities being unknown to Plaintiff. Plaintiff will ask leave of
Court to amend its Complaint by inserting their true names and capacities in the place of said
fictitious names when the same have been ascertained.
7. Plaintiff is informed and believes and based thercon alleges that each of the
fictitiously named Defendants was responsible in some or all manner for the acts and
occurrences herein alleged, and that each fictitiously named Defendant is liable for damages
suffered as hereinafter set forth. Any mention or reference to any named Defendant and any
allegation or cause of action stated in the Complaint against any named Defendant is
intended to include and apply to DOES 1 through 50, inclusive.
8. At all times mentioned herein, each of the Defendants was the agent and
employee of each of the remaining Defendants, and was, in doing the things herein
complained of, acting within the scope of such agency and employment.
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‘COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF
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9, Plaintiff is informed and believes and based thereon alleges that Defendants
WENDY HEMMING, PAUL HEMMING, and 55 NATOMA, at some time and in some
manner held an ownership interest in certain real property located at 540 Howard Street, City
of San Francisco, County of San Francisco (hereinafter the “540 Howard Street Property”).
Plaintiff is informed and believes and based thereon alleges that at some point in time
' Defendant WENDY HEMMING became the sole owner of record of the 540 Howard Street
Property, and was the sole owner of the 540 Howard Street Property in 2014 and 2015.
10. Plaintiff is informed and believes and based thereon alleges that the Transbay
Joint Powers Authority is the owner of, or is the agent of or acting on behalf of, the owner of
certain real property commonly known as the “Transbay Parcel F” or “Parcel F” located
adjacent to or near the 540 Howard Street Property.
11. Located between the 540 Howard Street Property and the 524 Howard Street
Property is certain real property located at 530 Howard Street, City of San Francisco, County
of San Francisco (hereinafter the “530 Howard Street Property”).
12, In 2014, representatives of the owners of the 540 Howard Street Property and
the 524 Howard Street Property began preliminary negotiations to form a joint venture for
the purpose of acquiring the Transbay Parcel F and other properties for the development of a
residential or mixed use project in the City and County of San Francisco.
13. On or about August 12, 2014, Plaintiff HOWARD/FIRST and Defendant 55
NATOMA executed a JV Equity Term Sheet in connection with a real estate project
involving the Transbay Parcel F, the 540 Howard Street Property and possibly the 524
Howard Street Property. The JV Equity Term Sheet stated that Plaintiff HOWARD/FIRST
and Defendant 55 NATOMA would form a Delaware limited liability company wherein
Plaintiff HOWARD/FIRST would have a 50% ownership interest and Defendant 55
NATOMA would have a 50% ownership interest for the purpose of pursuing the possible
acquisition and development of said properties.
14. The JV Equity Term Sheet further provided the following exclusivity
provision:
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COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF
16192811Giens GIDEN LOCHER TURNER SENET & WITTBRODT LLP
Coe NA Hh BF WH e
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“The parties agree that they shall negotiate exclusively with one another for
a period of one-hundred twenty (120) days to enter into a binding operating
agreement for the Company consistent with the terms and provisions hereof
(“Exclusivity Period”), and further agree that during the Exclusivity Period
neither party shall negotiate with any other third party (including an
affiliate) or the owner of 530 Howard to acquire 530 Howard, Parcel F
other than on a joint basis consistent with the terms hereof or to sell or
venture their respective properties with any party other than each other.”
15, That exclusivity provision was amended on or about November 26, 2014 to
provide that the Exclusivity Period would end on June 12, 2015. A true and correct copy of
the JV Equity Term Sheet and Amendment is attached hereto as Exhibit A and made a part
hereof (hereinafter referred to collectively as the “TV Equity Term Sheet”).
16. On or about December 23, 2014, Plaintiff HOWARD/FIRST and Defendant
WENDY HEMMING entered into the Limited Liability Company Agreement of Pantheon
SF, LLC (the “Operating Agreement”). A true and correct copy of the Operating Agreement
of Pantheon SF, LLC is attached hereto (without exhibits or attachments) as Exhibit B and
made a part hereof.
17. Pursuant to Section 2.4 of the Operating Agreement, the purpose of Pantheon
SF, LLC (the “Company”) was to attempt to:
a. Acquire the Transbay Parcel F from the Transbay Joint Powers
Authority;
b. If successfut in acquiring Transbay Parcel F, then acquire the 540
Howard Street Property from Defendant WENDY HEMMING;
c. If successful in acquiring Transbay Parcel F and the 540 Howard Street
Property, then acquire the 530 Howard Street Property;
d, If successful in acquiring Transbay Parcel F, the 540 Howard Street
Property and the 530 Howard Street Property, then acquire the 524
Howard Street Property from Plaintiff HOWARD/FIRST; and
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: COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF
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.Gisss GIDEN LOCHER TURNER SENET & WITTBRODT LLP
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e If successful in acquiring all of these properties, then seek and obtain all
necessary entitlements to develop and improve these properties.
18. Pursuant to Section 2.6(a)(10) and Section 2.6(a)(11) of the Operating
Agreement, Defendant WENDY HEMMING agreed as follows:
“(10) Matte ling Parcel F Property and the 530
Howard Property. The Hemming Member will not, and will not permit
any Hemming Member Principal or any Affiliate of the Hemming Member
or Hemming Member Principal to, enter into directly or indirectly any
discussions or negotiations or otherwise engage in any effort to acquire the
Parcel F Property or the 530 Howard Property, or any interest therein,
except in connection with the acquisition thereof by and on behalf of the
Company.
(11) Matters Regarding the 540 Howard Property. The
Hemming Member will not, and will not permit any Hemming Member
Principal or any Affiliate of the Hemming Member or Hemming Member
Principal to, sell, assign, transfer, convey, lease (other than for aterm of
one year or less (including any options and/or renewals), or which can be
terminated on not less than ninety (90) days prior written notice without
penalty), mortgage, lien or otherwise dispose of or encumber the 540
Howard Property or any interest therein without the prior written consent of
the CH Member (which consent may be withheld, conditioned and/or
delayed in the sole and absolute discretion of the CH Member).”
19. Pursuant to Section 4.3(a) of the Operating Agreement, the parties thereto
agreed as follows:
“a) Parcel F Property. As of the Effective Date, the Parcel F
Property is owned by the City. The Company shall make all reasonable
efforts to acquire the Parcel F Property from the City. The terms and
conditions upon which the Company agrees to acquire the Parcel F
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COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF
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Property shall be approved by both the Members (such approval not to be
unreasonably withheld, conditioned or delayed). If the Company acquires
the Parcel F Property from the City, then: (i) the Hemming Member shall
contribute the 540 Howard Property to the Company at the closing of the
Company’s acquisition of the Parcel F Property in accordance with
Section 4.3(b) below, and (ii) if (and only if) the Company has previously
acquired the 530 Howard Property, then the CH Member shall
contribute the 524 Howard Property to the Company at the closing of
the Company’s acquisition of the Parcel F Property in accordance with
Section 4.3(d) below. However, if the Company fails to acquire the Parcel
F Property from the City for any reason whatsoever, then this Agreement
shall terminate, the “Memorandum” (as hereinafter defined) shall be
discharged from record and the Company shall be dissolved.”
20. Pursuant to Section 2.6(a)(4) of the Operating Agreement, Defendant WENDY
HEMMING represented and warranted as follows:
“(4) No Litigation. There is no pending or, to the knowledge of
the Hemming Member, threatened litigation, arbitration and/or
administrative proceedings involving or potentially adversely affecting the
Hemming Member of the 540 Howard Property.”
21. Pursuant to Section 2.6(b) of the Operating Agreement, Defendant WENDY
HEMMING covenanted and agreed as follows:
“(b) Indemnification. The Hemming Member covenants and
agrees to indemnify, hold harmless and defend the CH Member and the
Company (and their respective officers, directors, employees, agents,
successors and assigns) from and against any Losses arising out of the
breach by the Hemming Member of any representation, warranty, covenant
or agreement of the Hemming Member contained in this Agreement,
including without limitation, those contained in Section 2.6(a) above.”
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COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF(Gisps GIDEN LOCHER TURNER SENET & WITTBRODT LLP
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22. Pursuant to Section 11.9 of the Operating Agreement, the parties thereto
agreed as follows:
“Section 11.9 Legal Fees. In the event of litigation between the
Members in connection with this Agreement, each Member shall be
responsible for the payment of its own attomeys’ fees and other legal costs
unless and until a prevailing party is determined in such action or suit, in
which event the prevailing party so determined shall be entitled to have and
recover from the other patty all costs and expenses resulting therefrom, it
being understood and agreed that the determination of the prevailing party
shall be included in the matters which are the subject of such action or
suit.”
23. On or about June 11, 2015, the Transbay Joint Powers Authority posted
Prequalification to Bid in Auction Instructions for those entities interested in bidding on
Transbay Parcel F. The Prequalification to Bid Instructions stated that the Transbay Joint
Powers Authority would accept bids at auction for Transbay Parcel F only from prequalified
bidders, and that the minimum bid must be $160,000,000. The Prequalification to Bid
Instructions further stated that any entity interested in becoming prequalified to participate in
the auction must submit a written application package for prequalification by no later than
July 2, 2015 at 4:00 p.m. That deadline was later extended to July 23, 2015. The
Prequalification to Bid Instructions further stated that if the bidder is a business association
or joint venture, each member of the association or entities that comprise the joint venture
should be disclosed. If the bidder is some other entity, the officers, the members and each
person having an interest of more than 10% must disclose various items of detailed
information. A copy of the prequalification application form is attached hereto as Exhibit C
and made a part hereof.
24. Plaintiff HOWARD/FIRST is informed and believes and based thereon alleges
that prior to June 17, 2015, Defendants WENDY HEMMING and PAUL HEMMING
engaged in unauthorized negotiations and discussions with other persons regarding the
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COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF
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purchase of the Transbay Parcel F and the sale of the 540 Howard Street Property, which
negotiations and discussions were in violation of the Operating Agreement and the JV Equity
Term Sheet.
25. OnJune 18, 2015, Plaintiff HOWARD/FIRST requested that Defendant
WENDY HEMMING provide the information required by the Prequalification to Bid
application so Plaintiff HOWARD/FIRST could complete and submit the same on behalf of
the Company so the Company could participate in the bidding for the Transbay Parcel F.
After repeated requests were made, Defendant WENDY HEMMING failed to provide the
information required by the Prequalification to Bid application and as a result {a) Plaintiff
HOWARD/FIRST was prevented from completing and submitting the same on behalf of the
Company, and (b) the Company was prevented from participating in the bidding for the
Transbay Parcel F.
26. Onor about June 21, 2015, Defendant PAUL HEMMING, purportedly acting
on behalf of WENDY HEMMING, requested that Plaintiff HOWARD/FIRST dissolve the
joint venture, including the Operating Agreement.
27. On orafter July 21, 2015, Plaintiff HOWARD/FIRST and Defendant WENDY
HEMMING entered into an agreement entitled Termination of JV Agreements
(“Termination Agreement”) which terminated the Operating Agrcement, the FV Equity Term
Sheet and any prior agreements between the parties. The Termination Agreement provides
the prevailing party in any action, litigation or proceeding that is based on any claim,
controversy or other disputed matter arising under, out of or in connection with this
Agreement shall recover from the non-prevailing party reasonable attorneys’ fees and costs
incurred by the prevailing party in such action, litigation or proceeding. A true and correct
copy of the Termination Agreement is attached hereto as Exhibit D and made a part hereof.
28. Onor about July 26, 2015, Defendant WENDY HEMMING sent an e-mail to
Plaintiff HOWARD/FIRST’s representative “immediately and unconditionally” withdrawing
her signature and agreement to the Terminating Agreement.
it
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COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF
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FIRST CAUSE OF ACTION
(For Intentional Misrepresentation Alleged by Plaintiff HOWARD/FIRST
PROPERTY, LLC as Against Defendants PAUL HEMMING, WENDY
HEMMING, 55 NATOMA LLC and DOES 1 through 16, inclusive)
29. Plaintiff HOWARD/FIRST realleges and incorporates by this reference each
and every allegation contained in paragraphs | through 28 above, inclusive, as though set
forth here in full.
30. Within the past three years, Defendants PAUL HEMMING, WENDY
HEMMING or 55 NATOMA and DOES | through 10, inclusive, represented in writing and
verbally that they would cooperate with Plaintiff in pursuing the possible acquisition and
development of the Transbay Parcel F and the 530 Howard Street Property, would deal
exclusively with Plaintiff in said acquisitions and development, and that the Hemming
Member was not involved in litigation affecting the Hemming Member at the time of the
execution of the Operating Agreement.
31. As alleged above, the representation of said Defendants were false and untrue
as said Defendants violated their agreements and representations by failing to cooperate with
Plaintiff in pursuing the acquisition of the properties, and by meeting with competing
developers as alleged above, and by failing to disclose pending litigation affecting said
Defendants.
32. Plaintiff is informed and believes and based thereon alleges that at the time
said representations were made, said Defendants had no intention of dealing exclusively with
Plaintiff but intended to obtain Plaintiff's development expertise and assistance, cause
Plaintiff to incur costs and expenses in pursuing the acquisition and development of said
properties, and cause Plaintiff to forego other development opportunities,
33. Plaintiff is further informed and believes and based thereon alleges that
contrary to Defendant WENDY HEMMING’s “No Litigation” representation and warranty
in the Operating Agreement, Defendant WENDY HEMMING was involved in one or more
pending lawsuits at the time of the execution of the Operating Agreement.
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COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF
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34. Plaintiff reasonably relied on the foregoing representations, acts and/or
omissions of said Defendants, and incurred hundreds of thousands of dollars of costs in
pursuing the acquisition and development of said properties, and in foregoing other
development opportunities.
35. As adirect and proximate result of said Defendants’ misrepresentations,
Plaintiff incurred costs and expenses in pursuing the acquisition and development of said
properties, failed to pursue other development opportunities, and sustained damages in an
amount to be proved at trial.
36. Plaintiff is informed and believes and based thereon alleges that said
Defendants, and each of them, in doing the acts herein complained of, acted willfully and
knowingly, with specific intent to defraud, injure and harm Plaintiff. Said Defendants, and
each of them, are thus guilty of malice, oppression and fraud, thereby entitling Plaintiff to an
award of punitive damages. Plaintiff is further informed and believes and based thereon
alleges that the actions attributable to the corporate or limited liability company defendants
sued herein were performed by the corporation’s or company’s members or agents, while
acting within the course and scope of their employment or agency, and that such actions
were ratified by said defendant corporation or company.
EC! USE OF ACTION
(or Declaratory Relief Alleged by Plaintiff HOWARD/FIRST PROPERTY, LLC as
Against Defendants WENDY HEMMING, PAUL HEMMNG, 55 NATOMA LLC and
DOES 1 through 50, inclusive)
37. Plaintiff HOWARD/FIRST realleges and incorporates by this reference each
and every allegation contained in paragraphs 1 through 28 and paragraphs 30 through 34
above, as though set forth here in full.
38. Plaintiff is informed and believes and based thereon alleges that all conditions
precedent to the obligations of Defendants under the Termination Agreement have been met,
waived, suspended or excused, and that the Termination Agreement is binding and effective.
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COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF
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39. Defendant WENDY HEMMING stated that she has withdrawn her signature to
the Termination Agreement, and has otherwise refused to comply with and consummate the
Termination Agreement.
40. A dispute has arisen among the members to the Operating Agreement and the
parties to the JV Equity Term Sheet regarding the effectiveness and validity of the
Termination Agreement.
41, Plaintiff has no adequate remedy at law as it cannot effectively operate or
dissolve the subject limited liability company without the consent and cooperation of the
partics to the Operating Agreement and Termination Agreement.
42, Plaintiff requests that the Court issue a declaration as to the validity of the
Termination Agreement and as to the rights of the parties under the Operating Agreement.
THIRD CAUSE OF ACTION
(for Breach of Contract Alleged by Plaintiff HOWARD/FIRST
PROPERTY, LLC as Against Defendants WENDY HEMMING
and DOES 5 through 26, inclusive)
43. Plaintiff HOWARD/FIRST realleges and incorporates by this reference each
and every alfegation contained in paragraphs | through 28, paragraphs 30 through 34, and
paragraphs 38 through 40 above, as though set forth here in full.
44, Plaintiff has performed all obligations required on its part to be performed
under the Operating Agreement, save for and except those that have been excused or
prevented,
45, All conditions precedent to the obligations of the parties under the Operating
Agreement have been met, waived, suspended or excused.
46. Within the past year, Defendant WENDY HEMMING breached the
agreements alleged above by negotiating with other parties for the purchase of the Transbay
Parcel F and sale of the 540 Howard Street Property, by failing to provide the information
necessary to complete the Prequalification to Bid application for qualification to bid on
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‘COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF
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Transbay Parcel F, by failing to pay Defendant WENDY HEMMING?’s share of expenses as
provided under the Operating Agreement, by failing to disclose pending litigation involving
Defendant WENDY HEMMING, requesting, executing, then reneging on the Termination
Agreement, and otherwise failing to perform pursuant to the Operating Agreement.
47, Asa direct and proximate result of the foregoing breach of contract by
Defendants WENDY HEMMING and DOES 11! through 20, inclusive, Plaintiff incurred
unnecessary costs as alleged herein and has been otherwise damaged. Plaintiff has also
incurred legal and administrative expenses in an amount to be proven at trial. Plaintiff has
not yet completely, fully, and finally ascertained all additional costs, damages and losses
incurred by Plaintiff as a direct and proximate result of said Defendants’ breach of the
Operating Agreement.
48. In the event the Termination Agreement is deomed valid and enforceable, then
Plaintiff is entitled to recover from said Defendants, and each of them, its attorneys’ fees and
costs incurred in determining its enforceability.
49. Inthe event the Operating Agreement is not terminated in accordance with the
Termination Agreement, then Plaintiff is entitled to recover damages from said Defendants,
and cach of them, in an amount subject to proof, but which is in excess of $500,000.
FOURTH CAUSE OF ACTION
(For Intentional Interference with Contractual Relations Alleged
by Plaintiff HOWARD/FIRST PROPERTY, LLC as Against Defendants
PAUL HEMMING, and DOES 15 through 30)
50. Plaintiff HOWARD/FIRST realleges and incorporates by this reference each
and every allegation contained in paragraphs 1 through 28 and paragraphs 45 and 46 above,
as though set forth here in full.
51. As set forth above, a valid contract existed between Plaintiff and WENDY
HEMMING for the benefit of the Company.
Wt
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‘COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF
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52. Plaintiff is informed and believes and based thereon alleges that Defendants
PAUL HEMMING and DOES 21 through 30, inclusive, and each of them, knew of the
existence and nature of the contractual relations existing between Plaintiff and WENDY
HEMMING. Said Defendants also knew that any efforts by them to induce WENDY
HEMMING to not aid Plaintiff in the acquisition of Transbay Parcel F, or to aid another
prospective buyer in the purchase of Transbay Parcel F, would interfere with the existing
contractual relationship between Plaintiff and WENDY HEMMING.
53, On further information and belief, Plaintiff alleges that, in spite of their
knowledge of the adverse impact it would have upon Plaintiff's existing contractual
relationship with WENDY HEMMING, said Defendants induced WENDY HEMMING not
to aid Plaintiff in the acquisition of Transbay Parcel F, assisted WENDY HEMMING in
negotiating with another buyer for the acquisition of Transbay Parcel F, prevented the
Company from acquiring Transbay Parcel F and 540 Howard Street Property, and otherwise
prevented Plaintiff from proceeding in accordance with the Operating Agreement.
54. Asa direct and proximate result of the interferences by said Defendants with
the existing contractual relation of Plaintiff and WENDY HEMMING as alleged herein, the
Company has been prevented from acquiring Transbay Parcel F and 540 Howard Street
Property, and Plaintiff has been prevented from proceeding in accordance with the Operating
Agreement, and Plaintiff has been damaged in an amount to be proven at trial.
55. Plaintiff is informed and believes and based thereon alleges that said
Defendants, and each of them, in doing the acts herein complained of, acted willfully and
knowingly, with specific intent to defraud, injure and harm Plaintiff. Said Defendants, and
each of them, are thus guilty of malice, oppression and fraud, thereby entitling Plaintiff to an
award of punitive damages. Plaintiff is further informed and believes and based thereon
alleges that the actions attributable to the corporate ot limited liability company defendants
sued herein were performed by the corporation’s or company’s members or agents, while
acting within the course and scope of their employment or agency, and that such actions
were ratified by said defendant corporation or company.
COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF
16132811GiBBS GIDEN LOCHER TURNER SENET & WITTBRODT LLP
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FIFTH CAUSE OF ACTION
(For Intentional Interference with Prospective Economic Advantage
Alleged by Plaintiff HOWARD/FIRST PROPERTY, LLC as Against
Defendants PAUL HEMMING, and DOES 15 through 40, inclusive)
56. Plaintiff HOWARD/FIRST realleges and incorporates by this reference each
and every allegation contained in paragraphs 1 through 28, and paragraphs 45, 46 and 53
above, as though ‘set forth here in full.
57. Plaintiff is informed and believes and based thercon alleges that Defendants
PAUL HEMMING and DOES 31 through 40, inclusive, and each of them, knew of
Plaintiff's existing business relationship with WENDY HEMMING.
58. Despite knowing of this existing business relationship, Defendants PAUL
HEMMING and DOES 3] through 40, inclusive, and each of them, intentionally interfered
with this business relationship by inducing WENDY HEMMING not to cooperate with
Plaintiff in the acquisition of Transbay Parcel F and to meet with other prospective buyers in
the purchase of Transbay Parcel F and the 540 Howard Street Property.
59, Asa direct and proximate result of the interferences by said Defendants with
the existing contractual relation of Plaintiff as alleged herein, the Company has been
prevented from acquiring Transbay Parcel F and 540 Howard Street Property, and Plaintiff
has been prevented from proceeding in accordance with the Operating Agreement, and
Plaintiff has been damaged in an amount to be proven at trial.
60. Plaintiff is informed and believes and based thereon alleges that said
Defendants, and each of them, in doing the acts herein complained of, acted willfully and
knowingly, with specific intent to defraud, injure and harm Plaintiff, Said Defendants, and
each of them, are thus guilty of malice, oppression and fraud, thereby entitling Plaintiff to an
award of punitive damages. Plaintiff is further informed and believes and based thereon
alleges that the actions attributable to the corporate or limited liability company defendants
sued herein were performed by the corporation’s or company’s members or agents, while
it
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COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF
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acting within the course and scope of their employment or agency, and that such actions
were ratified by said defendant corporation or company.
WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as
follows:
ON THE FIRST CAUSE OF ACTION
(For Misrepresentation as Against PAUL HEMMING, WENDY HEMMING,
55 NATOMA LLC and DOES 1 through 10, inclusive)
1. For damages in an amount to be proven at trial.
2. For punitive damages in an amount appropriate to punish Defendants and deter
other from engaging in similar conduct.
ON THE'SECOND.CAU; FE ACTIO!
(or Declaratory Relief as Against PAUL HEMMING, WENDY HEMMING,
55 NATOMA LLC and DOES 1 through 50, inclusive)
1. For a decree that on payment to Defendants of the sum set forth in the
Termination Agreement and the performance by Plaintiff of all conditions of the Termination |
Agreements Defendants be ordered and directed to perform all conditions of the Termination
Agreement to be performed by Defendants.
ON THE THIRD CAUSE OF ACTION
(For Breach of Contract as Against WENDY HEMMING and
DOES 5 through 20, inclusive)
1. For damages in an amount to be proven at trial, but for an amount in excess of
$500,000.
2. For attomeys’ fees pursuant to written agreement.
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COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF
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ON THE FOURTH CAUSE OF ACTION
(For Intentional Interference with Contractual Relations as Against
PAUL HEMMING, and DOES 15 through 30, inclusive)
lL For damages in an amount to be proven at trial; and
2. For punitive damages in an amount appropriate to punish Defendants and deter
others from engaging in similar conduct.
ON THE FIFTH CAUSE OF ACTION
(For Intentional Interference with Prospective Economic Advantage
as Against PAUL HEMMING, and DOES 15 through 40, inclusive)
1. For damages in an amount to be proven at trial; and
2. For punitive damages in an amount appropriate to punish Defendants and deter
others from engaging in similar conduct.
DATED: August 7, 2015 GIBBS, GIDEN,
SOCHER, TURNER & SENET LLP
“Theodore L. Senet
Jessica R. Moore
Attorneys for Plaintiff,
HOW. VFIRST PROPERTY. LLC
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COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF
16192811EXHIBIT "A"EXHIBIT AJV EQUITY TERM SHEET
Howard Street Development
San Francisco, CA
August 12,2014
It Is intended that the 524 Member and the 540 Member will consider partnering, as equal partners, in connection
with the real estate project described below, on the besic terms and conditions outlined below:
524 Member:
‘540 Mamber:
Investment Vehicte:
‘Ownership Interest:
Investment Project:
Additional Agreement:
Howard/First Property, LLC, oF an affillate it designates. 524 Member currently owns
directly or through en affilate the real property commonly known as 524 Howard
Street, San Francisco, California (“524 Howard").
55 Natoma LLC (Paul and Wendy Hemming), or an effillate tt:designates, 540 Member
currently owns directly or through an affiliate the real property ‘cormonly known as 540
Howard Street, San Francisco, California ("540 Howard”). 524 Membar and 540
Member are sometimes referred to herein as “Members”.
‘One or more newly-formed Delaware limited lability company(les), or other tax pass-
through vehicte(s) (whether one or more, the "Company”). The parties shalt endeavor,
to the extent practicable, to structure the contemplated transaction In a tax advantaged
structure and in a manner to minimize adverse tax consequences to 524 Member and ,
540 Member, including transfer taxes, property taxes through re-assessment and
federal and state Income taxes.
It Is contemplated that the percentage of ownership Interests of 524 Member and 540
Member in the Company shail be:
* 524 Member: 50%; and,
= $40 Member: 50%
‘The Company is being formed to: (a) acquire the property known as “Parcel F”, which Is
currently owned by the City and County of San Francisco; (b) take title to 540 Howard;
and {c) develop a mixed-use project on the combined property. If the Company
acquires Parcel F, then the 540 Member shail convey 540 Howard to the Company at
fair market value at the closing of such acquisition. The exact capitat structure ‘of the
Company {Le., whether the conveyance of 540 Howard wilt be a sale or contribution to
the Company and the capital contribution requirements of the 524 Member} will be
determined by the Members during the negotiation of the operating agreement for the
Company taking into account tax treatment, cash requirements, financing and other,
relevant factors,
Neither Member shall accept an offer to acquire or acquire the property known as 530
Howard Street, San Francisco, California ("530 Howard”), whether through @ purchase
and sale agreement or otherwise, untess such Member has first offered the other
Member the right to acquire a 50% Interest in 530 Howard along with such Member In
accordance with the terms of the Right of First Refusal dated April 30, 2024 and
previously executed by the Members (the “ROFR”); and If the Member accepts such
offer to acquire such 50% Interest In $30 Howard, then the Members shall Jointly
‘acquire 530 Howard, .Additlonal Terms: Additional terms of the Operating Agreement, including additional capital requirements,
governance, distributions, any fees, transferabllity and exit from the Venture shall be
negotiated in good faith by the parties.
* © © BINDINGAGREEMENTS * * *
Notwithstanding the non-binding nature of this Term Sheet with respect to the matters outlined above, the parties
hereto each covenant and agree that as a material Inducement to 540 Member to consider 524 Member's request
for an Investment, the follawing provistons are Intended to be binding on the parties hereto:
Confidentiality: Each party hereto will keep, and will Instruct and cause thelr agents, advisors and fegal
counsel to keep, this term sheet strictly confidential, 540 Member will disclose to 524
Member the names of any advisors and legal counsel to whom this term sheet Is
provided, if any, The foregoing confidentiality provisions shall be inapplicable if and to
the extent any court or regulatory authority having Jurisdiction over the matter shall
require disclosure of any such Information.
EXCLUSIVITY: ‘The parties agree that they shall negotiate exclusively with one another for a period of
‘one-hundred twenty (120) days to enter into a binding operating agreement for the
Company consistent with the terms and provisions hereof (“Exclusivity Pertod"), and
further agree that during the Exclusivity Period neither party shall negotiate with any
other third party (Including any affiltate) or the owner of 530 Haward to acquire 530
Howard, Parcel F other than on a Joint basis consistent with the tarms hereof or to sell
of venture thelr respective properties with any party other than each other,
Parcel F Pursult Costs: The parties agree that the costs and expenses Incurred In connection with the pursuit of
the acquisition of Parcel F {Including consultant and legal fees) shall be shared by the
parties equally regardless of whether the partles are successful th acquiring Parcel F or
forming the Company.
Non-Binding: ‘The. parties hereto understand and agree that this Term Sheet Is provided solely for
discussion purposes only and {except with respect to the provisions immediately above)
Is not a commitment or agreement of any kind to entire Into a venture or to form the
Company.
ACCEPTED AND AGREED:
Howard/First Property LLC. |
wy Adon Etat,
Title:_Vice President
585 Natoma LLCAMENDMENT TO JV EQUITY TERM SHEET
Howard Street Development
San Francisco, CA
November £3 2014
Reference Is made to that certain JV EQUITY TERM SHEET dated as of August 12, 2014, by and between
Howard/First Property, LLC ("524 Howard") and 55 Natoma LLC ("540 Howard”) [the “Original Term Sheet").
Terms utilized In the Original Term Sheet shall have the same meaning as set forth herein.
The parties agree that the paragraph entitled “Exclusivity” in the Binding Agreement section of the Original Term
Sheet shall be deleted and replaced {n full by the following provision: i
“EXCLUSIVITY: The parties agree that they shail negotiate exclusively with one another for a period
commencing with the date of the Original Term Sheet and eriding on June 12, 2015 to
enter inte a binding operating agreement for the Company. consistent with the terms
and provisions hereof (“Exclusivity Period"), ‘The Parties further agree that during the
Exclusivity Perlod neither party shall negotiate with any other thitd party. ‘(including any
affiiate) or the owner of 530:Haward:to acquire: 530 Howard, Paroel F other than on 8
joint basis consistent with the terms hereof or to selt or venture’ thelr respective
properties with any party ather than each other.”
All other terms and provisions of the Original Term Sheet, Including the other “Binding Agreements” are hereby
ratified and confirmed and shail remain in full force and effect.
ACCEPTED AND AGREED:
Howard/First Property LLC
MEL —
wy OheKEAEXHIBIT gEXHIBIT BLAX3937876.6
LIMITED LIABILITY AGREEMENT OF
PANTHEON SF, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
DECEMBER 23, 2014LIMITED LIABILITY COMPANY AGREEMENT
OF
PANTHEON SF, LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) is entered
into as of December 23, 2014, (the “Effective Date”) by and between HOWARD/FIRST
PROPERTY, LLC, a Delaware limited liability company (“CH Member”), and Wendy
Hemming, a single woman (“Hemming Member”),
RECITALS
WHEREAS, a certificate of formation for Pantheon SF, LLC (the “Company”) was filed
with the Secretary of State for the State of Delaware on December 22, 2014; and
WHEREAS, the CH Member owns the 524 Howard Property, and the Hemming Member
owns the 540 Howard; and
WHEREAS, the CH Member and the Hemming Member desire to form the Company for
the purposes set forth in this Agreement; and
WHEREAS, the CH Member and the Hemming Member wish to set forth their
understanding and agreement with respect to the formation and operation of the Company and
their respective rights, obligations and liabilities of being a member in the Company.
NOW THEREFORE, in consideration of the agreements and obligations set forth herein
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the CH Member and the Hemming Member hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions. Capitalized terms not otherwise defined in this Agreement
shall have the meaning give to such terms on Schedule “1” attached hereto,
Section 1.2 Captions, References. Pronouns, wherever used herein, and of whatever
gender, shall include natural persons and corporations and associations of every kind and
character, and the singular shall include the plural wherever and as often as may be appropriate.
Article and section headings are for convenience of reference and shall not affect the
construction or interpretation of this Agreement. Whenever the terms “hereof”, “hereby”,
“herein”, or words of similar import are used in this Agreement they shall be construed as
referring to this Agreement in its entirety rather than to a particular section or provision, unless
the context specifically indicates to the contrary. Whenever the word “including” is used herein,
it shall be construed to mean including without limitation. Any reference to a particular
“Article” or a “Section” shall be construed as referring to the indicated article or section of this
Agreement unless the context indicates to the contrary.
LAX3937876.6ARTICLE 2
ORGANIZATIONAL MATTERS; PURPOSE; TERM.
Section 2.1 Formation. The Company was organized as a Delaware limited liability
company on December 22, 2014 by the filing of a certificate of forma
Preview
28 PATTON & SULLIVAN LLP PLEASANTON, CA Randy Sullivan, Esq. (SBN 229326) Ralph Kokka, Esq. (SBN 143519) Dylan R. William, Esq. (SBN 282123) ELECTRONICALLY PATTON & SULLIVAN LLP FILED 6600 Koll Center Parkway, Suite 250 Superior Court of California, Pleasanton, California 94566-8058 Coun of Sar aneee 925-600-1800 Phone 09/13/2016 rs Clerk of the Court 925-600-1802 Fax BYDAVID YUEN tandy@pattonsullivan.com Deputy Clerk talph@pattonsullivan. dylan@pattonsullivan. Attorneys for Defendants PAUL HEMMING, WENDY HEMMING and 55 NATOMA LLC Attorneys for Cross-Complainant WENDY HEMMING, an individual, and WENDY HEMMING, individually and on behalf of the derivative claims of PANTHEON SF, LLC SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCSICO HOWARD/FIRST, LLC, a Delaware Case No. CGC 15-547246 limited liability company, [Unlimited Jurisdiction] DISCOVERY DEFENDANT/CROSS-COMPLAINANT PAUL HEMMING, an individual, WENDY WENDY HEMMING’S REQUEST FOR Plaintiff, v. HEMMING, an individual; 55 NATOMA JUDICIAL NOTIC! LLC, a Washington limited liability - company; and DOES 1 through 50, DATE: October 2016 inclusive, TIME: 9:00 a.m. DEPT.: 302 (Hon. Harold Kahn) Defendants. Complaint Filed: August 7, 2015 Cross-Complaint Filed: October 30, 2015 AND RELATED CROSS ACTION. Pursuant to sections 452(d) and 453 of the California Evidence Code, Defendants/Cross- Complainant Wendy Hemming (hereinafter “Hemming”) hereby requests that this Court take judicial notice of the following: 1. Plaintiff's complaint filed on August 7, 2015 attached hereto as Exhibit A; and My DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S REQUEST FOR JUDICIAL NOTICE 1 No. CGC 15-54724628 PATTON & SULLIVAN LLP PLEASANTON, CA 2. Defendant/Cross-Complainant’s First Amended Cross-Complaint filed on November 23, 2015 attached hereto as Exhibit B. Dated: September |Z-, 2016 PATTON & SULLIVAN LLP pyr been bees RANDY SULLIVAN RALPH KOKKA DYLAN R. WILLIAMS Attorneys for Defendants PAUL HEMMING, WENDY HEMMING and! 55 NATOMA LLC Attorneys for Cross-Complainant WENDY HEMMING, an individual, and WENDY HEMMING, individually and on behalf of the derivative claims of PANTHEO! SF, LLC DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S REQUEST FOR JUDICIAL NOTICE No. CGC 15-547246< & ee ¥ aRETR TNE METER MS IEEE EAGLE TRIE RUE TERT HN UCANGIONN SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Aug-07-2015 2:05 pm Case Number: CGC-15-547246 Filing Date: Aug-07-2015 1:57 Filed by: GARY FELICIANO Juke Box: 001 Image: 05024821 COMPLAINT HOWARD/FIRST PROPERTY, LLC, A DELAWARE LIMITED VS. PAUL HEMMINGi ET AL 001005024821 Instructions: | Please place this sheet on top of the document to be scanned.© SUM-100 SUMMONS FOR COURT USE ONLY (CITACION JUDICIAL) fenton USO eE Le NOTICE TO DEFENDANT: (AVISO AL DEMANDADO): : We aul Hemming, an individual; Mendy Hemming, an individual; 55 Natoma, C,.a Washington limited liability company; and Does | through 50, inclusive YOU ARE BEING SUED BY PLAINTIFF: (LO ESTA DEMANDANDO ELDEMANDANTE): loward/First Property, LLC, a Delaware limited liability company NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the Information below. ‘You have 30 CALENDAR DAYS after this summons and legal papers ate served on you to file a written response at this court and have @ copy ‘served on the plaintiff. A fetter or phone call will not protect you, Your written response must be in proper tegal form if you want the court to hear your case, There may be a court form that you can use for your rasponse, You can find these court forms and more Information at the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selthelp), your county law library, oF the courthouse nearest you. If you cannot pay the fling fee, ask ‘the court clerk for @ foe waiver form. if you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attomey, you may want to call an altorney referral service. If you cannot afford an attomey, you may be eligible for free legal services fram a nonprofit legal services program. You can tocate these nonprofit groups at the California Legal Services Web site (www./awhelpcaliforia.org), the California Courts ‘Online Self-Help Center (www.courtinfo.ca, gov/salfhelp), of by contacting your local court or county bar association. NOTE: Tha court has a statutory lien for waived fees and ‘costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court wilt dismiss the case. JAVISO! Lo han demandado, Sino responde dentro de 30 dias, la corte puede decidir en su contra sin esouchar su versién. Lea la informacién 8 | continuacion. | Tiane 30 DIAS DE CALENDARIO después de que fe entrequen esta citacién y papales legates para prosontar una respuesta por escrito en esta corte y hacer que se entregue una copie af demandente, Una carta o una llamada telefénica no fo protegen. Su respuesta por escrito tone que estar en formato legal correcto si desea que procesen su caso en (a corte. Es posibla que haya un formulario que usted pueda usar pare su respuesta. Puede encontrar estos formularies de la corte y més informacién en ef Centro de Ayuda de fas Cortes de California (www.sucorte.ca.gov), en la biblioteca de leyes de su condado © en le corte que le quede més cerca. Sino pueda pagar la cuote de presentaci6n, pida af secretario de fa corte que le dé un formulerio de exencién de pago de cuotas. $1 no presonta su respuesta a tiempo, puede perder el caso por Incumplimiento y la corte lo} |podré quitar su sueldo, dinero y blenes sin més advertencia. ‘Hay otros requisitos legeles, Es recomendable que lame # un abogado inmediatamente. Si no conoce a un abogado, puede Hamar 6 un serviclo de remisién a abogados. Si no puede pagar e un abogado, os posible que cumpla con los requisitos para obtener servicios legates gratultos de un programa de servicios legales sin fines de luoro. Puede encontrar estos grupos sin fines de lucro en et sitio web de California Legal Services, (www.lawhetpcalifornia.org), en ef Centro de Ayuda de las Cortes de Callfomia, (www.sucorte.ca.gov) 0 poniéndose en contacto con le corte oe! colegio de ebogados locales. AVISO: Por ley, la corte tiene derecho a rectamar fas cuotas y los costos exentos por Imponer un gravamen sobre cualquier recuperacién de $10,000 6 més de valor recibida mediante un acuerdo 0 una concesién de arbltraje en un caso de derecho civil. Tiene que ‘ef gravamen de la corte antes do que fa corte pueda desechar of caso. The name and address of the court is: NUMBER (Neer € nombre y direccién de la corte oe) ee . uperior Court of the State of California, County of San Francisco 400 McAllister Street San Francisco, CA 94102 The name, address, and telephone number of plaintiff's attorney, or plaintiff without an attorney, is: EI nombre, ta direccién y el numero de teléfono del abogado del demandante, o del demandante quo no tiene abogado, es): ts E i iden Locher Turner Senet & Wittbrodt LLP eodore L. Senet, Esq. / Jessica R. Moore, Esq. i 1880-Century Park East, 12th Floor (310) 552-3400 Los Angeles, CA 90067 7 7 oe DATE: , CLERK OF THE Clerk, by Na RY ELENA! D9, Fecney ‘AUG 07 2015 OFTHE GOURT Se ty . guns) rp ‘service of this summons, use vice oF Summons (form POS-010).) (Para prueba de entrega de esta citacién use el formulario Proof of Service of Summons, (POS-010)). NOTICE TO THE PERSON SERVED: You are served 4 A as an individual defendant. 2 as the person sued under the fictitious name of (specify): BY E AX I) , 3 Cl) on behalf of (specify): under: CCP 416.10 (corporation) CCP 416.60 (minor) CCP 416.20 (defunct corporation) CGP 416.70 (conservatee) CCP 416.40 {association or partnership) ‘CCP 416.90 (authorized person) other (specify): 4. (} by personal delivery on (date): SUUNONS Page tof Fea Use ‘Coils of Gi Pronedure 8§ 412 20, 465 Saeeae ts Morin Deans : TH Fa Howard/First Property -~ 5081-002Gipss GIDEN LOCHER TURNER SENET & WITTBRODT LLP Ceo ND HW FF WN tee Reo NM = & 15 8 Theodore L., Senet, Esq. (CSB # 082788) isenet@gibbsgiden.com F Jessica iti Esa. (CSB # 272733) jrmoore iden.com Superior Court of California ‘GIBBS | LOCHER TURNER ounty of San Francisco SE TTBRODT LLP. a Pa i ce AUG 07 2015 ; rBee a CLERK 2 Telephone (310) gente PONG Fax ioy 552-0805 oy Hi OF The COURT . Attormeys for Plaintiff Deputy Cer HOWARD/FIRST PROPERTY, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO, CIVIC CENTER COURTHOUSE HOWARD/FIRST PROPERTY, LLC, a Delaware limited liability company, Plaintiff, Vv. PAUL HEMMING, ap tials 4S HATOMA HEMMING. tLe. a Wa fF henited liability comipany; and. SES 1 through ti inclusive, Defendants. case No-O GC 15- ~5 47246 Department (Unlimited Jurisdiction] COMPLAINT FOR DAMAGES AND FOR DECLARATORY RELIEF BY FAX HOWARD/EIRST PROPERTY, LLC, a Delaware limited liability company ‘|| (hereinafter “Plaintiff” or “HOWARD/FIRST”), complains and alleges as follows: lL. At all relevant times, Plaintiff HOWARD/FIRST, a Delaware limited liability | company, was the owner of certain real property located at 524 Howard Street, City of San Francisco, County of San Francisco (hereinafter the “524 Howard Street Property”). ut Mit - : 1 COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 15192641 | :\ Gipps GIDEN LOCHER TURNER SENET & WITTBRODT LLP 10 Coed nA A a WN 2. Plaintiff is informed and believes and based thereon alleges that Defendant PAUL HEMMING is an individual and a resident of the State of California, County of San Francisco, doing business in the County and City of San Francisco, State of California. 3. Plaintiff is informed and believes and based thereon alleges that Defendant WENDY HEMMING is an individual and a resident of the State of California, County of San Francisco, doing business in the County and City of San Francisco, State of California. 4, Plaintiff is informed and believes and based thercon alleges that Defendant 55 NATOMA LLC (hereinafter “55 NATOMA”) is a Washington State limited liability company, which is owned and controlled by Defendants WENDY HEMMING and PAUL HEMMING, and is doing business in the County and City of San Francisco, State of California. 5. Plaintiff is informed and believes and based thereon alleges that Defendants were and are doing business in the County of San Francisco, State of California, that the real properties involved in this action are located within said county and state, and that the contracts alleged herein were made in said county and state. 6. Defendants DOES 1 through 50, inclusive, are sued herein under fictitious names, their true names and capacities being unknown to Plaintiff. Plaintiff will ask leave of Court to amend its Complaint by inserting their true names and capacities in the place of said fictitious names when the same have been ascertained. 7. Plaintiff is informed and believes and based thercon alleges that each of the fictitiously named Defendants was responsible in some or all manner for the acts and occurrences herein alleged, and that each fictitiously named Defendant is liable for damages suffered as hereinafter set forth. Any mention or reference to any named Defendant and any allegation or cause of action stated in the Complaint against any named Defendant is intended to include and apply to DOES 1 through 50, inclusive. 8. At all times mentioned herein, each of the Defendants was the agent and employee of each of the remaining Defendants, and was, in doing the things herein complained of, acting within the scope of such agency and employment. 2 ‘COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 1032811 |Gipps GIDEN LOCHER TURNER SENET & WITTBRODT LLP Con DH RB WN 10 9, Plaintiff is informed and believes and based thereon alleges that Defendants WENDY HEMMING, PAUL HEMMING, and 55 NATOMA, at some time and in some manner held an ownership interest in certain real property located at 540 Howard Street, City of San Francisco, County of San Francisco (hereinafter the “540 Howard Street Property”). Plaintiff is informed and believes and based thereon alleges that at some point in time ' Defendant WENDY HEMMING became the sole owner of record of the 540 Howard Street Property, and was the sole owner of the 540 Howard Street Property in 2014 and 2015. 10. Plaintiff is informed and believes and based thereon alleges that the Transbay Joint Powers Authority is the owner of, or is the agent of or acting on behalf of, the owner of certain real property commonly known as the “Transbay Parcel F” or “Parcel F” located adjacent to or near the 540 Howard Street Property. 11. Located between the 540 Howard Street Property and the 524 Howard Street Property is certain real property located at 530 Howard Street, City of San Francisco, County of San Francisco (hereinafter the “530 Howard Street Property”). 12, In 2014, representatives of the owners of the 540 Howard Street Property and the 524 Howard Street Property began preliminary negotiations to form a joint venture for the purpose of acquiring the Transbay Parcel F and other properties for the development of a residential or mixed use project in the City and County of San Francisco. 13. On or about August 12, 2014, Plaintiff HOWARD/FIRST and Defendant 55 NATOMA executed a JV Equity Term Sheet in connection with a real estate project involving the Transbay Parcel F, the 540 Howard Street Property and possibly the 524 Howard Street Property. The JV Equity Term Sheet stated that Plaintiff HOWARD/FIRST and Defendant 55 NATOMA would form a Delaware limited liability company wherein Plaintiff HOWARD/FIRST would have a 50% ownership interest and Defendant 55 NATOMA would have a 50% ownership interest for the purpose of pursuing the possible acquisition and development of said properties. 14. The JV Equity Term Sheet further provided the following exclusivity provision: 3 COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 16192811Giens GIDEN LOCHER TURNER SENET & WITTBRODT LLP Coe NA Hh BF WH e wow RM YM NN Ne Be ee ee Ome Om Re ee eo WU AAR DH SF SOKO eA DH FSF WH HK DS “The parties agree that they shall negotiate exclusively with one another for a period of one-hundred twenty (120) days to enter into a binding operating agreement for the Company consistent with the terms and provisions hereof (“Exclusivity Period”), and further agree that during the Exclusivity Period neither party shall negotiate with any other third party (including an affiliate) or the owner of 530 Howard to acquire 530 Howard, Parcel F other than on a joint basis consistent with the terms hereof or to sell or venture their respective properties with any party other than each other.” 15, That exclusivity provision was amended on or about November 26, 2014 to provide that the Exclusivity Period would end on June 12, 2015. A true and correct copy of the JV Equity Term Sheet and Amendment is attached hereto as Exhibit A and made a part hereof (hereinafter referred to collectively as the “TV Equity Term Sheet”). 16. On or about December 23, 2014, Plaintiff HOWARD/FIRST and Defendant WENDY HEMMING entered into the Limited Liability Company Agreement of Pantheon SF, LLC (the “Operating Agreement”). A true and correct copy of the Operating Agreement of Pantheon SF, LLC is attached hereto (without exhibits or attachments) as Exhibit B and made a part hereof. 17. Pursuant to Section 2.4 of the Operating Agreement, the purpose of Pantheon SF, LLC (the “Company”) was to attempt to: a. Acquire the Transbay Parcel F from the Transbay Joint Powers Authority; b. If successfut in acquiring Transbay Parcel F, then acquire the 540 Howard Street Property from Defendant WENDY HEMMING; c. If successful in acquiring Transbay Parcel F and the 540 Howard Street Property, then acquire the 530 Howard Street Property; d, If successful in acquiring Transbay Parcel F, the 540 Howard Street Property and the 530 Howard Street Property, then acquire the 524 Howard Street Property from Plaintiff HOWARD/FIRST; and 4 : COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF ort t | : | .Gisss GIDEN LOCHER TURNER SENET & WITTBRODT LLP Ce INAH PR YD e If successful in acquiring all of these properties, then seek and obtain all necessary entitlements to develop and improve these properties. 18. Pursuant to Section 2.6(a)(10) and Section 2.6(a)(11) of the Operating Agreement, Defendant WENDY HEMMING agreed as follows: “(10) Matte ling Parcel F Property and the 530 Howard Property. The Hemming Member will not, and will not permit any Hemming Member Principal or any Affiliate of the Hemming Member or Hemming Member Principal to, enter into directly or indirectly any discussions or negotiations or otherwise engage in any effort to acquire the Parcel F Property or the 530 Howard Property, or any interest therein, except in connection with the acquisition thereof by and on behalf of the Company. (11) Matters Regarding the 540 Howard Property. The Hemming Member will not, and will not permit any Hemming Member Principal or any Affiliate of the Hemming Member or Hemming Member Principal to, sell, assign, transfer, convey, lease (other than for aterm of one year or less (including any options and/or renewals), or which can be terminated on not less than ninety (90) days prior written notice without penalty), mortgage, lien or otherwise dispose of or encumber the 540 Howard Property or any interest therein without the prior written consent of the CH Member (which consent may be withheld, conditioned and/or delayed in the sole and absolute discretion of the CH Member).” 19. Pursuant to Section 4.3(a) of the Operating Agreement, the parties thereto agreed as follows: “a) Parcel F Property. As of the Effective Date, the Parcel F Property is owned by the City. The Company shall make all reasonable efforts to acquire the Parcel F Property from the City. The terms and conditions upon which the Company agrees to acquire the Parcel F 5 COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF vons2811 |Gipps GIDEN LOCHER TURNER SENET & WITTBRODT LLP Cm a AH eB wn yoN PN KR YN YK KR Se Be Be Se Se ee eB ea AA Pe SSF SF Gwe RAH RO He SD Property shall be approved by both the Members (such approval not to be unreasonably withheld, conditioned or delayed). If the Company acquires the Parcel F Property from the City, then: (i) the Hemming Member shall contribute the 540 Howard Property to the Company at the closing of the Company’s acquisition of the Parcel F Property in accordance with Section 4.3(b) below, and (ii) if (and only if) the Company has previously acquired the 530 Howard Property, then the CH Member shall contribute the 524 Howard Property to the Company at the closing of the Company’s acquisition of the Parcel F Property in accordance with Section 4.3(d) below. However, if the Company fails to acquire the Parcel F Property from the City for any reason whatsoever, then this Agreement shall terminate, the “Memorandum” (as hereinafter defined) shall be discharged from record and the Company shall be dissolved.” 20. Pursuant to Section 2.6(a)(4) of the Operating Agreement, Defendant WENDY HEMMING represented and warranted as follows: “(4) No Litigation. There is no pending or, to the knowledge of the Hemming Member, threatened litigation, arbitration and/or administrative proceedings involving or potentially adversely affecting the Hemming Member of the 540 Howard Property.” 21. Pursuant to Section 2.6(b) of the Operating Agreement, Defendant WENDY HEMMING covenanted and agreed as follows: “(b) Indemnification. The Hemming Member covenants and agrees to indemnify, hold harmless and defend the CH Member and the Company (and their respective officers, directors, employees, agents, successors and assigns) from and against any Losses arising out of the breach by the Hemming Member of any representation, warranty, covenant or agreement of the Hemming Member contained in this Agreement, including without limitation, those contained in Section 2.6(a) above.” 19192814 6 COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF(Gisps GIDEN LOCHER TURNER SENET & WITTBRODT LLP wo UN KH HW RF WN 10 22. Pursuant to Section 11.9 of the Operating Agreement, the parties thereto agreed as follows: “Section 11.9 Legal Fees. In the event of litigation between the Members in connection with this Agreement, each Member shall be responsible for the payment of its own attomeys’ fees and other legal costs unless and until a prevailing party is determined in such action or suit, in which event the prevailing party so determined shall be entitled to have and recover from the other patty all costs and expenses resulting therefrom, it being understood and agreed that the determination of the prevailing party shall be included in the matters which are the subject of such action or suit.” 23. On or about June 11, 2015, the Transbay Joint Powers Authority posted Prequalification to Bid in Auction Instructions for those entities interested in bidding on Transbay Parcel F. The Prequalification to Bid Instructions stated that the Transbay Joint Powers Authority would accept bids at auction for Transbay Parcel F only from prequalified bidders, and that the minimum bid must be $160,000,000. The Prequalification to Bid Instructions further stated that any entity interested in becoming prequalified to participate in the auction must submit a written application package for prequalification by no later than July 2, 2015 at 4:00 p.m. That deadline was later extended to July 23, 2015. The Prequalification to Bid Instructions further stated that if the bidder is a business association or joint venture, each member of the association or entities that comprise the joint venture should be disclosed. If the bidder is some other entity, the officers, the members and each person having an interest of more than 10% must disclose various items of detailed information. A copy of the prequalification application form is attached hereto as Exhibit C and made a part hereof. 24. Plaintiff HOWARD/FIRST is informed and believes and based thereon alleges that prior to June 17, 2015, Defendants WENDY HEMMING and PAUL HEMMING engaged in unauthorized negotiations and discussions with other persons regarding the 7 COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 19192611Gipps GIDEN LOCHER TURNER SENET & WITIBRODT LLP wo oe I KA HA BW ND & yn wy PY NNR DYN SF Fe ee we Be eR eS ou AA UH SF SOD wOP RAH BR WN —- S purchase of the Transbay Parcel F and the sale of the 540 Howard Street Property, which negotiations and discussions were in violation of the Operating Agreement and the JV Equity Term Sheet. 25. OnJune 18, 2015, Plaintiff HOWARD/FIRST requested that Defendant WENDY HEMMING provide the information required by the Prequalification to Bid application so Plaintiff HOWARD/FIRST could complete and submit the same on behalf of the Company so the Company could participate in the bidding for the Transbay Parcel F. After repeated requests were made, Defendant WENDY HEMMING failed to provide the information required by the Prequalification to Bid application and as a result {a) Plaintiff HOWARD/FIRST was prevented from completing and submitting the same on behalf of the Company, and (b) the Company was prevented from participating in the bidding for the Transbay Parcel F. 26. Onor about June 21, 2015, Defendant PAUL HEMMING, purportedly acting on behalf of WENDY HEMMING, requested that Plaintiff HOWARD/FIRST dissolve the joint venture, including the Operating Agreement. 27. On orafter July 21, 2015, Plaintiff HOWARD/FIRST and Defendant WENDY HEMMING entered into an agreement entitled Termination of JV Agreements (“Termination Agreement”) which terminated the Operating Agrcement, the FV Equity Term Sheet and any prior agreements between the parties. The Termination Agreement provides the prevailing party in any action, litigation or proceeding that is based on any claim, controversy or other disputed matter arising under, out of or in connection with this Agreement shall recover from the non-prevailing party reasonable attorneys’ fees and costs incurred by the prevailing party in such action, litigation or proceeding. A true and correct copy of the Termination Agreement is attached hereto as Exhibit D and made a part hereof. 28. Onor about July 26, 2015, Defendant WENDY HEMMING sent an e-mail to Plaintiff HOWARD/FIRST’s representative “immediately and unconditionally” withdrawing her signature and agreement to the Terminating Agreement. it 8 COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 1613261.1 |GIBBS GIDEN LOCHER TURNER SENET & WITIBRODT LLP eo we IW DAA PF WH Rw NR YY NKR KR YF Se Be ee em ee ee eI AA SF OH KH SO KH ADA UR wWN YE FIRST CAUSE OF ACTION (For Intentional Misrepresentation Alleged by Plaintiff HOWARD/FIRST PROPERTY, LLC as Against Defendants PAUL HEMMING, WENDY HEMMING, 55 NATOMA LLC and DOES 1 through 16, inclusive) 29. Plaintiff HOWARD/FIRST realleges and incorporates by this reference each and every allegation contained in paragraphs | through 28 above, inclusive, as though set forth here in full. 30. Within the past three years, Defendants PAUL HEMMING, WENDY HEMMING or 55 NATOMA and DOES | through 10, inclusive, represented in writing and verbally that they would cooperate with Plaintiff in pursuing the possible acquisition and development of the Transbay Parcel F and the 530 Howard Street Property, would deal exclusively with Plaintiff in said acquisitions and development, and that the Hemming Member was not involved in litigation affecting the Hemming Member at the time of the execution of the Operating Agreement. 31. As alleged above, the representation of said Defendants were false and untrue as said Defendants violated their agreements and representations by failing to cooperate with Plaintiff in pursuing the acquisition of the properties, and by meeting with competing developers as alleged above, and by failing to disclose pending litigation affecting said Defendants. 32. Plaintiff is informed and believes and based thereon alleges that at the time said representations were made, said Defendants had no intention of dealing exclusively with Plaintiff but intended to obtain Plaintiff's development expertise and assistance, cause Plaintiff to incur costs and expenses in pursuing the acquisition and development of said properties, and cause Plaintiff to forego other development opportunities, 33. Plaintiff is further informed and believes and based thereon alleges that contrary to Defendant WENDY HEMMING’s “No Litigation” representation and warranty in the Operating Agreement, Defendant WENDY HEMMING was involved in one or more pending lawsuits at the time of the execution of the Operating Agreement. 9 COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 16132811Gress GIDEN LOCHER TURNER SENET & WIETBRODT LLP wc end DAH BH N NNN NY YN N KN |& Bee Fe ee ee eB eu AaB OH KF SO MOA A UH FY NY EH S 34. Plaintiff reasonably relied on the foregoing representations, acts and/or omissions of said Defendants, and incurred hundreds of thousands of dollars of costs in pursuing the acquisition and development of said properties, and in foregoing other development opportunities. 35. As adirect and proximate result of said Defendants’ misrepresentations, Plaintiff incurred costs and expenses in pursuing the acquisition and development of said properties, failed to pursue other development opportunities, and sustained damages in an amount to be proved at trial. 36. Plaintiff is informed and believes and based thereon alleges that said Defendants, and each of them, in doing the acts herein complained of, acted willfully and knowingly, with specific intent to defraud, injure and harm Plaintiff. Said Defendants, and each of them, are thus guilty of malice, oppression and fraud, thereby entitling Plaintiff to an award of punitive damages. Plaintiff is further informed and believes and based thereon alleges that the actions attributable to the corporate or limited liability company defendants sued herein were performed by the corporation’s or company’s members or agents, while acting within the course and scope of their employment or agency, and that such actions were ratified by said defendant corporation or company. EC! USE OF ACTION (or Declaratory Relief Alleged by Plaintiff HOWARD/FIRST PROPERTY, LLC as Against Defendants WENDY HEMMING, PAUL HEMMNG, 55 NATOMA LLC and DOES 1 through 50, inclusive) 37. Plaintiff HOWARD/FIRST realleges and incorporates by this reference each and every allegation contained in paragraphs 1 through 28 and paragraphs 30 through 34 above, as though set forth here in full. 38. Plaintiff is informed and believes and based thereon alleges that all conditions precedent to the obligations of Defendants under the Termination Agreement have been met, waived, suspended or excused, and that the Termination Agreement is binding and effective. 10 COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 1613281.) iGipps GIDEN LOCHER TURNER SENET & WITTBRODT LLP Y eo eI DH BW HN Bee ee QO ne o 14 39. Defendant WENDY HEMMING stated that she has withdrawn her signature to the Termination Agreement, and has otherwise refused to comply with and consummate the Termination Agreement. 40. A dispute has arisen among the members to the Operating Agreement and the parties to the JV Equity Term Sheet regarding the effectiveness and validity of the Termination Agreement. 41, Plaintiff has no adequate remedy at law as it cannot effectively operate or dissolve the subject limited liability company without the consent and cooperation of the partics to the Operating Agreement and Termination Agreement. 42, Plaintiff requests that the Court issue a declaration as to the validity of the Termination Agreement and as to the rights of the parties under the Operating Agreement. THIRD CAUSE OF ACTION (for Breach of Contract Alleged by Plaintiff HOWARD/FIRST PROPERTY, LLC as Against Defendants WENDY HEMMING and DOES 5 through 26, inclusive) 43. Plaintiff HOWARD/FIRST realleges and incorporates by this reference each and every alfegation contained in paragraphs | through 28, paragraphs 30 through 34, and paragraphs 38 through 40 above, as though set forth here in full. 44, Plaintiff has performed all obligations required on its part to be performed under the Operating Agreement, save for and except those that have been excused or prevented, 45, All conditions precedent to the obligations of the parties under the Operating Agreement have been met, waived, suspended or excused. 46. Within the past year, Defendant WENDY HEMMING breached the agreements alleged above by negotiating with other parties for the purchase of the Transbay Parcel F and sale of the 540 Howard Street Property, by failing to provide the information necessary to complete the Prequalification to Bid application for qualification to bid on li ‘COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF tsr3288 | : :GipBs GIDEN LOCHER TURNER SENET & WITTBRODT LLP Coed AH BF HN Transbay Parcel F, by failing to pay Defendant WENDY HEMMING?’s share of expenses as provided under the Operating Agreement, by failing to disclose pending litigation involving Defendant WENDY HEMMING, requesting, executing, then reneging on the Termination Agreement, and otherwise failing to perform pursuant to the Operating Agreement. 47, Asa direct and proximate result of the foregoing breach of contract by Defendants WENDY HEMMING and DOES 11! through 20, inclusive, Plaintiff incurred unnecessary costs as alleged herein and has been otherwise damaged. Plaintiff has also incurred legal and administrative expenses in an amount to be proven at trial. Plaintiff has not yet completely, fully, and finally ascertained all additional costs, damages and losses incurred by Plaintiff as a direct and proximate result of said Defendants’ breach of the Operating Agreement. 48. In the event the Termination Agreement is deomed valid and enforceable, then Plaintiff is entitled to recover from said Defendants, and each of them, its attorneys’ fees and costs incurred in determining its enforceability. 49. Inthe event the Operating Agreement is not terminated in accordance with the Termination Agreement, then Plaintiff is entitled to recover damages from said Defendants, and cach of them, in an amount subject to proof, but which is in excess of $500,000. FOURTH CAUSE OF ACTION (For Intentional Interference with Contractual Relations Alleged by Plaintiff HOWARD/FIRST PROPERTY, LLC as Against Defendants PAUL HEMMING, and DOES 15 through 30) 50. Plaintiff HOWARD/FIRST realleges and incorporates by this reference each and every allegation contained in paragraphs 1 through 28 and paragraphs 45 and 46 above, as though set forth here in full. 51. As set forth above, a valid contract existed between Plaintiff and WENDY HEMMING for the benefit of the Company. Wt 12 ‘COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 16132810 |Gipps GIDEN LOCHER TURNER SENET & WITTBRODT LLP Cer Aw FWD - Oo 12 52. Plaintiff is informed and believes and based thereon alleges that Defendants PAUL HEMMING and DOES 21 through 30, inclusive, and each of them, knew of the existence and nature of the contractual relations existing between Plaintiff and WENDY HEMMING. Said Defendants also knew that any efforts by them to induce WENDY HEMMING to not aid Plaintiff in the acquisition of Transbay Parcel F, or to aid another prospective buyer in the purchase of Transbay Parcel F, would interfere with the existing contractual relationship between Plaintiff and WENDY HEMMING. 53, On further information and belief, Plaintiff alleges that, in spite of their knowledge of the adverse impact it would have upon Plaintiff's existing contractual relationship with WENDY HEMMING, said Defendants induced WENDY HEMMING not to aid Plaintiff in the acquisition of Transbay Parcel F, assisted WENDY HEMMING in negotiating with another buyer for the acquisition of Transbay Parcel F, prevented the Company from acquiring Transbay Parcel F and 540 Howard Street Property, and otherwise prevented Plaintiff from proceeding in accordance with the Operating Agreement. 54. Asa direct and proximate result of the interferences by said Defendants with the existing contractual relation of Plaintiff and WENDY HEMMING as alleged herein, the Company has been prevented from acquiring Transbay Parcel F and 540 Howard Street Property, and Plaintiff has been prevented from proceeding in accordance with the Operating Agreement, and Plaintiff has been damaged in an amount to be proven at trial. 55. Plaintiff is informed and believes and based thereon alleges that said Defendants, and each of them, in doing the acts herein complained of, acted willfully and knowingly, with specific intent to defraud, injure and harm Plaintiff. Said Defendants, and each of them, are thus guilty of malice, oppression and fraud, thereby entitling Plaintiff to an award of punitive damages. Plaintiff is further informed and believes and based thereon alleges that the actions attributable to the corporate ot limited liability company defendants sued herein were performed by the corporation’s or company’s members or agents, while acting within the course and scope of their employment or agency, and that such actions were ratified by said defendant corporation or company. COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 16132811GiBBS GIDEN LOCHER TURNER SENET & WITTBRODT LLP Cem IN KAM BP WH = eo oe nF So FIFTH CAUSE OF ACTION (For Intentional Interference with Prospective Economic Advantage Alleged by Plaintiff HOWARD/FIRST PROPERTY, LLC as Against Defendants PAUL HEMMING, and DOES 15 through 40, inclusive) 56. Plaintiff HOWARD/FIRST realleges and incorporates by this reference each and every allegation contained in paragraphs 1 through 28, and paragraphs 45, 46 and 53 above, as though ‘set forth here in full. 57. Plaintiff is informed and believes and based thercon alleges that Defendants PAUL HEMMING and DOES 31 through 40, inclusive, and each of them, knew of Plaintiff's existing business relationship with WENDY HEMMING. 58. Despite knowing of this existing business relationship, Defendants PAUL HEMMING and DOES 3] through 40, inclusive, and each of them, intentionally interfered with this business relationship by inducing WENDY HEMMING not to cooperate with Plaintiff in the acquisition of Transbay Parcel F and to meet with other prospective buyers in the purchase of Transbay Parcel F and the 540 Howard Street Property. 59, Asa direct and proximate result of the interferences by said Defendants with the existing contractual relation of Plaintiff as alleged herein, the Company has been prevented from acquiring Transbay Parcel F and 540 Howard Street Property, and Plaintiff has been prevented from proceeding in accordance with the Operating Agreement, and Plaintiff has been damaged in an amount to be proven at trial. 60. Plaintiff is informed and believes and based thereon alleges that said Defendants, and each of them, in doing the acts herein complained of, acted willfully and knowingly, with specific intent to defraud, injure and harm Plaintiff, Said Defendants, and each of them, are thus guilty of malice, oppression and fraud, thereby entitling Plaintiff to an award of punitive damages. Plaintiff is further informed and believes and based thereon alleges that the actions attributable to the corporate or limited liability company defendants sued herein were performed by the corporation’s or company’s members or agents, while it 14 COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 16192811GipBs GIDEN LOCHER TURNER SENET & WiTTBRODT LLP Cor AH FF WN aOR ETS 16 acting within the course and scope of their employment or agency, and that such actions were ratified by said defendant corporation or company. WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as follows: ON THE FIRST CAUSE OF ACTION (For Misrepresentation as Against PAUL HEMMING, WENDY HEMMING, 55 NATOMA LLC and DOES 1 through 10, inclusive) 1. For damages in an amount to be proven at trial. 2. For punitive damages in an amount appropriate to punish Defendants and deter other from engaging in similar conduct. ON THE'SECOND.CAU; FE ACTIO! (or Declaratory Relief as Against PAUL HEMMING, WENDY HEMMING, 55 NATOMA LLC and DOES 1 through 50, inclusive) 1. For a decree that on payment to Defendants of the sum set forth in the Termination Agreement and the performance by Plaintiff of all conditions of the Termination | Agreements Defendants be ordered and directed to perform all conditions of the Termination Agreement to be performed by Defendants. ON THE THIRD CAUSE OF ACTION (For Breach of Contract as Against WENDY HEMMING and DOES 5 through 20, inclusive) 1. For damages in an amount to be proven at trial, but for an amount in excess of $500,000. 2. For attomeys’ fees pursuant to written agreement. it Mt 15 COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF tenetGisps GIDEN LOCHER TURNER SENET & WITTBRODT LLP wR YY KR NY NK YD SF Bee es ee Be Be SE 2 Raa FOoH KH SO we A AHR YH eH SD woo YN Aw FF WN ON THE FOURTH CAUSE OF ACTION (For Intentional Interference with Contractual Relations as Against PAUL HEMMING, and DOES 15 through 30, inclusive) lL For damages in an amount to be proven at trial; and 2. For punitive damages in an amount appropriate to punish Defendants and deter others from engaging in similar conduct. ON THE FIFTH CAUSE OF ACTION (For Intentional Interference with Prospective Economic Advantage as Against PAUL HEMMING, and DOES 15 through 40, inclusive) 1. For damages in an amount to be proven at trial; and 2. For punitive damages in an amount appropriate to punish Defendants and deter others from engaging in similar conduct. DATED: August 7, 2015 GIBBS, GIDEN, SOCHER, TURNER & SENET LLP “Theodore L. Senet Jessica R. Moore Attorneys for Plaintiff, HOW. VFIRST PROPERTY. LLC 6 COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 16192811EXHIBIT "A"EXHIBIT AJV EQUITY TERM SHEET Howard Street Development San Francisco, CA August 12,2014 It Is intended that the 524 Member and the 540 Member will consider partnering, as equal partners, in connection with the real estate project described below, on the besic terms and conditions outlined below: 524 Member: ‘540 Mamber: Investment Vehicte: ‘Ownership Interest: Investment Project: Additional Agreement: Howard/First Property, LLC, oF an affillate it designates. 524 Member currently owns directly or through en affilate the real property commonly known as 524 Howard Street, San Francisco, California (“524 Howard"). 55 Natoma LLC (Paul and Wendy Hemming), or an effillate tt:designates, 540 Member currently owns directly or through an affiliate the real property ‘cormonly known as 540 Howard Street, San Francisco, California ("540 Howard”). 524 Membar and 540 Member are sometimes referred to herein as “Members”. ‘One or more newly-formed Delaware limited lability company(les), or other tax pass- through vehicte(s) (whether one or more, the "Company”). The parties shalt endeavor, to the extent practicable, to structure the contemplated transaction In a tax advantaged structure and in a manner to minimize adverse tax consequences to 524 Member and , 540 Member, including transfer taxes, property taxes through re-assessment and federal and state Income taxes. It Is contemplated that the percentage of ownership Interests of 524 Member and 540 Member in the Company shail be: * 524 Member: 50%; and, = $40 Member: 50% ‘The Company is being formed to: (a) acquire the property known as “Parcel F”, which Is currently owned by the City and County of San Francisco; (b) take title to 540 Howard; and {c) develop a mixed-use project on the combined property. If the Company acquires Parcel F, then the 540 Member shail convey 540 Howard to the Company at fair market value at the closing of such acquisition. The exact capitat structure ‘of the Company {Le., whether the conveyance of 540 Howard wilt be a sale or contribution to the Company and the capital contribution requirements of the 524 Member} will be determined by the Members during the negotiation of the operating agreement for the Company taking into account tax treatment, cash requirements, financing and other, relevant factors, Neither Member shall accept an offer to acquire or acquire the property known as 530 Howard Street, San Francisco, California ("530 Howard”), whether through @ purchase and sale agreement or otherwise, untess such Member has first offered the other Member the right to acquire a 50% Interest in 530 Howard along with such Member In accordance with the terms of the Right of First Refusal dated April 30, 2024 and previously executed by the Members (the “ROFR”); and If the Member accepts such offer to acquire such 50% Interest In $30 Howard, then the Members shall Jointly ‘acquire 530 Howard, .Additlonal Terms: Additional terms of the Operating Agreement, including additional capital requirements, governance, distributions, any fees, transferabllity and exit from the Venture shall be negotiated in good faith by the parties. * © © BINDINGAGREEMENTS * * * Notwithstanding the non-binding nature of this Term Sheet with respect to the matters outlined above, the parties hereto each covenant and agree that as a material Inducement to 540 Member to consider 524 Member's request for an Investment, the follawing provistons are Intended to be binding on the parties hereto: Confidentiality: Each party hereto will keep, and will Instruct and cause thelr agents, advisors and fegal counsel to keep, this term sheet strictly confidential, 540 Member will disclose to 524 Member the names of any advisors and legal counsel to whom this term sheet Is provided, if any, The foregoing confidentiality provisions shall be inapplicable if and to the extent any court or regulatory authority having Jurisdiction over the matter shall require disclosure of any such Information. EXCLUSIVITY: ‘The parties agree that they shall negotiate exclusively with one another for a period of ‘one-hundred twenty (120) days to enter into a binding operating agreement for the Company consistent with the terms and provisions hereof (“Exclusivity Pertod"), and further agree that during the Exclusivity Period neither party shall negotiate with any other third party (Including any affiltate) or the owner of 530 Haward to acquire 530 Howard, Parcel F other than on a Joint basis consistent with the tarms hereof or to sell of venture thelr respective properties with any party other than each other, Parcel F Pursult Costs: The parties agree that the costs and expenses Incurred In connection with the pursuit of the acquisition of Parcel F {Including consultant and legal fees) shall be shared by the parties equally regardless of whether the partles are successful th acquiring Parcel F or forming the Company. Non-Binding: ‘The. parties hereto understand and agree that this Term Sheet Is provided solely for discussion purposes only and {except with respect to the provisions immediately above) Is not a commitment or agreement of any kind to entire Into a venture or to form the Company. ACCEPTED AND AGREED: Howard/First Property LLC. | wy Adon Etat, Title:_Vice President 585 Natoma LLCAMENDMENT TO JV EQUITY TERM SHEET Howard Street Development San Francisco, CA November £3 2014 Reference Is made to that certain JV EQUITY TERM SHEET dated as of August 12, 2014, by and between Howard/First Property, LLC ("524 Howard") and 55 Natoma LLC ("540 Howard”) [the “Original Term Sheet"). Terms utilized In the Original Term Sheet shall have the same meaning as set forth herein. The parties agree that the paragraph entitled “Exclusivity” in the Binding Agreement section of the Original Term Sheet shall be deleted and replaced {n full by the following provision: i “EXCLUSIVITY: The parties agree that they shail negotiate exclusively with one another for a period commencing with the date of the Original Term Sheet and eriding on June 12, 2015 to enter inte a binding operating agreement for the Company. consistent with the terms and provisions hereof (“Exclusivity Period"), ‘The Parties further agree that during the Exclusivity Perlod neither party shall negotiate with any other thitd party. ‘(including any affiiate) or the owner of 530:Haward:to acquire: 530 Howard, Paroel F other than on 8 joint basis consistent with the terms hereof or to selt or venture’ thelr respective properties with any party ather than each other.” All other terms and provisions of the Original Term Sheet, Including the other “Binding Agreements” are hereby ratified and confirmed and shail remain in full force and effect. ACCEPTED AND AGREED: Howard/First Property LLC MEL — wy OheKEAEXHIBIT gEXHIBIT BLAX3937876.6 LIMITED LIABILITY AGREEMENT OF PANTHEON SF, LLC, A DELAWARE LIMITED LIABILITY COMPANY DECEMBER 23, 2014LIMITED LIABILITY COMPANY AGREEMENT OF PANTHEON SF, LLC THIS LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) is entered into as of December 23, 2014, (the “Effective Date”) by and between HOWARD/FIRST PROPERTY, LLC, a Delaware limited liability company (“CH Member”), and Wendy Hemming, a single woman (“Hemming Member”), RECITALS WHEREAS, a certificate of formation for Pantheon SF, LLC (the “Company”) was filed with the Secretary of State for the State of Delaware on December 22, 2014; and WHEREAS, the CH Member owns the 524 Howard Property, and the Hemming Member owns the 540 Howard; and WHEREAS, the CH Member and the Hemming Member desire to form the Company for the purposes set forth in this Agreement; and WHEREAS, the CH Member and the Hemming Member wish to set forth their understanding and agreement with respect to the formation and operation of the Company and their respective rights, obligations and liabilities of being a member in the Company. NOW THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the CH Member and the Hemming Member hereby agree as follows: ARTICLE 1 DEFINITIONS Section 1.1 Definitions. Capitalized terms not otherwise defined in this Agreement shall have the meaning give to such terms on Schedule “1” attached hereto, Section 1.2 Captions, References. Pronouns, wherever used herein, and of whatever gender, shall include natural persons and corporations and associations of every kind and character, and the singular shall include the plural wherever and as often as may be appropriate. Article and section headings are for convenience of reference and shall not affect the construction or interpretation of this Agreement. Whenever the terms “hereof”, “hereby”, “herein”, or words of similar import are used in this Agreement they shall be construed as referring to this Agreement in its entirety rather than to a particular section or provision, unless the context specifically indicates to the contrary. Whenever the word “including” is used herein, it shall be construed to mean including without limitation. Any reference to a particular “Article” or a “Section” shall be construed as referring to the indicated article or section of this Agreement unless the context indicates to the contrary. LAX3937876.6ARTICLE 2 ORGANIZATIONAL MATTERS; PURPOSE; TERM. Section 2.1 Formation. The Company was organized as a Delaware limited liability company on December 22, 2014 by the filing of a certificate of forma