Preview
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1 RONALD R. ROSS] (SBN 43067) 1-;
MADOLYN D. ORR (SBN 280608) Au'g—..
1
2 ROSSl, HAMERSLOUGH, REISCHL & CHUCK 075
1960 The Alameda, Suite 200
051m“
"595" .~'."-"'-' 11
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San Jose, CA 95126-1493
Tel:
Fax:
(408) 261-4252
(40s) 261-4292
2'
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5 Attorneys for Defendant & Cross-Complainant
KING PLAZA CENTER, LLC
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
7
FOR THE COUNTY OF SAN MATEO
8
“191/
9 tn
DBP INVESTMENTS, a California General Case No.1 CIV53 8897 -<
10 Partnership, ‘l'l
CROSS-COMPLAINT FOR: >
‘(v/owl‘
ll Plaintiff, ><
1. Declaratory Relief re: Hourly
12 vs. Parking Signs
2. Declaratory Relief re: Over-Use of
13 KING PLAZA CENTER, LLC, a California Parking Easement
Limited Liability Company, and DOES 1-10, 3. Breach of Contract
14 4. Injunctive Relief
Defendants.
15
KING PLAZA CENTER, LLC, a Delaware
16 Limited Liability Company,
— — -— -—- -— —- -— --— -—»
17 Cross-Complainant, -
-
'0111530897
cP
18 vs. 1 Cross Complaint
;
133179
'
19 DBP INVESTMENTS, a California General
Partnership and ROES 1 through 10, 1
ii“ ..._
20 _.
Cross-Defendants.
21
22
23 On information and belief, Cross-Complainant KING PLAZA CENTER, LLC alleges as
24 follows:
25 PRELIMINARY ALLEGATIONS
Raw Sun: 200
26 1. Cross-Complainant King Plaza Center, LLC (“Cross~Complainant” or “King”)
5:11 lav; CA
(511’,1112, 27 is a Delaware limited liability company and owner of that certain parcel of real property located
Fan (408)210-4292
28 approximately at the intersections of King Drive and Callan Boulevard, and commonly known
CROSS-COMPLAINT l
1 as King Plaza, identified by the San Mateo County Assessor as parcel number 91-17-175-22
2 (hereinafter “King Property”).
3 2. The King Property shares a boundary with an adjoining parcel of real property
4 located at and commonly known as 900 King Dr, Daly City, identified by the San Mateo
5 County Assessor as parcel number 91-17-175-20 (hereinafier the “DBP Property”). The
6 present owner of the DBP Property is Cross-Defendant DBP Investments, a California general
7 partnership (“DBP”).
8 3. Collectively, the King Property and the DBP Property are referred to herein as
9 the “Adjacent Properties.”
10 4. In or about 2007, Cross-Complainant King purchased the King Property from
ll non-party King Plaza Partners, a California general partnership (“KPP”).
12 5. Prior to 1997, the two parcels now known as the Adjacent Properties were
l3 comprised of three smaller parcels of real property, then identified by the SanMateo County
l4 Assessor as parcel numbers (“APN”) 091-175-150, APN 091-175-180, and APN 091-175-190.
15 These three smaller parcels were then owned by DBP and King’s predecessor KPP.
l6 6. In the 1990s, DBP and-KPP sought to consolidate the three smaller parcels into
l7 two larger parcels; retain the smaller resulting parcel on which the bowling alley stood; and to
18 sell off the larger resulting parcel (the “Consolidation and Redevelopment”). To do this
19 required the preparation and recordation of a parcel map, and approval of the redevelopment by
20 the City of Daly City (hereinafier the “City”).
2] 7. In or about 1990, as part of the process of seeking approval for the
22 redevelopment from the City, DBP and KPP represented to the City that the proposed parcel
23 changes would not interfere with the parking needs of the pre-existing and proposed
24 commercial users of the King Property, because the bowling alley’s use of the surrounding
25 parking would not change: that is, the bowling alley patrons visiting the DBP Property would
“Fg-fifi 26 continue to use parking spaces mostly in the evenings, leaving the parking spaces available for
of the retail and other commercial businesses at the King Property during the
Jig; 27 use by patrons
28 day. On that basis the City gave conditional approval to the Consolidation and Redevelopment.
CROSS-COMPLAINT 2
1 8. Concurrently with the process of seeking City approval for the Consolidation
2 and Redevelopment, DBP and KPP entered into a written agreement regarding various topics,
3 including parking and maintenance of certain portions of the newly consolidated Adjacent
4 Parcels: the “DBP Common Area” which comprises portions of land located on the DBP
5 Property, owned by DBP; and the “KPP Common Area,” which comprises portions of land
located on the King Property, then owned by KPP, and now owned by King. Hereinafier, the
DBP Common Area and the KPP Common Area are collectively referred to as the “Adjacent
\OOO\IO\
Common Area.”
9. Among other things, this agreement between DBP and KPP required DBP to
10 pay for one-half of all the costs of maintaining and repairing the Adjacent Common Area; and
1 1 to perform the actual maintenance and repair every other calendar year. The maintenance and
12 repair DBP is obligated to perform under the agreement includes, but is not limited to:
13 resurfacing pavement; restriping; cleaning, sweeping, and other janitorial services; policing and
14 security; purchase, construction and maintenance of refuse receptacles intended for public use;
15 and lighting. Under the terms of the agreement, if DBP fails to perform these obligations in
16 one calendar year, King has the right (but not the obligation) to perform them instead in the
17 following calendar year, and vice versa.
18 10. Despite King’s several attempts to urge DBP to perform its duties under the
l9 agreement and/or cooperate with King’s attempts t0 obtain estimates and hire vendors to
26 perform them, DBP has failed to undertake them, instead demands that King undertake them,
21 and in addition has obstructed King from its attempts to perform them in DBP’s stead by —
22 among other things — refusing to pay for 50% of the costs of maintaining and repairing the
23 Adjacent Common Area; obstructing vendors hired by King to conduct the maintenance and
24 repair called for under the agreement; failing to provide adequate security for its bowling alley
25 tenant’s regular late-night invitees leading to physical assaults and the need for police
Roi-ti Nammlouflg
harm»
I960 The Aha-nah
26 intervention.
Suit: 2m
(,sfiiiifi, 27 11. In addition, despite DBP’s representations that the bowling alley’s patrons
In (£0!) lid-4291
28 would primarily use parking needs 0n the Adjacent Common Area in the evenings, recently the
i
CROSS-COMPLAINT 3
1 use of parking on the King Property by patrons, employees, etc. of the bowling alley (DBP’s
2 tenant) has increased during the day as well. This is particularly problematic during bowling
3 tournaments held at the bowling alley, such that — during weekend tournaments in particular
4 but occasionally during large league play and weekdays as well — virtually all of the parking
5 spaces within the entire Adjacent Common Area (both the DBP Common Area and the KPP
6 Common Area) are filled by bowling alley patrons with very little tum-over — i.e., their
vehicles occupy the same parking spaces for the entire duration of the day-long and/or evening-
\DOOQ
long events (some lasting 10 or more hours), providing no possibilities that any of these spaces
could be used by patrons or employees of the other commercial businesses located on the
10 adjacent King Pr0perty. This problem has increased to the point that DBP’s over-use of the
11 parking spaces located on King’s Property has virtually eliminated King’s ability to use them.
12 This use by DBP and its tenants, invitees, etc. is contrary to the provision of the written
l3 agreement which requires DBP to exercise its easement rights “so as not to interfere with the
l4 lawful use of the other’s [King’s] Parcel and the activities conducted thereon.”
15 12. King has approached DBP multiple times to suggest cooperative, non-invasive
16 solutions to the parking dilemma posed by DBP’s over-use of the parking spaces located on the
l7 King Property, including but not limited to:
l8 a. place reasonable time-limits (e.g., two-hour/three-hour/five-hour
l9 parking) on parking spaces in the Adjacent Common Area by signage,
20 etc. (in addition to the 34 spaces of one-hour parking that pre-date
21 King’s purchase of the King Property);
22 b. valet parking;
23 c. temporarily reserving some parking for non-bowlers during bowling
24 tournaments;
25 d. obtaining permission from other nearby property owners whose parking
Eififsfi 26 options are not in use during the weekend (e. g., a nearby elementary
27 school, an empty lot, etc.) to reserve parking for bowlers there either
“gig;
28
CROSS-COMPLAINT 4
1 with or without a temporary shuttle service to drive bowlers from the off-
2 site reserved parking to the bowling alley; etc.
3 13. All of King’s suggestions have been rejected by DBP. Instead, DBP has
4 asserted that the only thing DBP thinks will help the parking situation is for King to construct
(or participate in constructing) a multi-million dollar, parking garage on King’s own property
and allow bowlers to park there.
O\OO<)\IO\‘Jt
l4. Prior to King’s purchase of the King Property, thirty-four (34) parking spaces
located on the King Property were reserved by permanent signs for hourly parking, and these
parking spaces continue to be restricted to hourly parking. When King arranged for the parking
areas to be repaved and restriped in 2015, these signswere temporarily removed to allow for
l 1 the maintenance and repair of the parking areas, and then were replaced upon conclusion of the
12 work. DBP has recently asserted that any such signage is no longer allowed. King disputes
l3 this.
14 FIRST CAUSE 0F ACTION
(Declaratory Relief re 34 Hourly Parking Signs Against Cross-Defendant)
15
16 15. Cross-Complainant incorporates by reference the allegations of Paragraphs 1
17 through 12 as though set forth in full herein.
‘
18 16. An actual controversy has arisen and now exists between King and DBP
19 concerning their respective rights and duties in that King contends the signs reserving thirty-
20 four (34) parking spaces to use for a certain number of hours have existed to reserve these
21 spaces for hourly use for more than a decade - including prior to King’s purchase of the King
22 Property — with DBP’s prior acquiescence; whereas DBP is apparently now taking the position
23 that the decades-long reservation of parking spaces in this manner is somehow forbidden, and
24 has sued King in part for King’s maintenance of these hourly parking signs.
25 l7. King desires a judicial determination of King’s and DBP’s respective rights and
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,,2;',’,‘;,'5’,’,, 27 reserve thirty-four (34) spaces for hourly use.
Fl! NIH) 1614292
28
CROSS~COMPLAINT 5
l 18. A judicial declaration is necessary and appropriate at this time under the
circumstances because defending itself against DBP’s new position regarding these thirty-four
Jib-)N (34) hourly parking signs and the acrimony surroundings same is causing King financial, legal,
and managerial burdens due to the unsettled state of affairs.
19. WHEREFORE, Plaintiff prays for relief against Cross~Defendants, and each of
them, as more fully set forth below.
\OOOQOUI
SECOND CAUSE OF ACTION
(Declaratory Relief re: DBP’s Over-Use of the Parking Easement over King’s Property)
20. Cross-Complainant incorporates by reference the allegations of Paragraphs l
10 through 16 as though set forth in full herein.
11 21. An actual controversy has arisen and now exists between King and DBP
l2 concerning their respective rights and duties under the aspects of the written agreement
l3 pertaining to DBP’s express easement for use of parking spaces on King’s Property, in that
l4 King contends that the extreme use of the parking spaces on King’s Property by bowlers
15 particularly during the frequent tournaments and bowling leagues constitutes over-use of
l6 whatever parking easement rights DBP may have; whereas DBP apparently disputes this.
17 22. King desires a judicial determination of King’s and DBP’s respective n'ghts and
l8 duties regarding use of the parking spaces located on King’s Property, and a declaration
19 specifying same.
20 23. A judicial declaration is necessary and appropriate at this time under the
21 circumstances because the current use of parking spaces on King’s Property by DBP, its
22 bowling alley tenant, and their invitees is negatively impacting King’s own tenants located on
23 the King Property, and therefore King’s relationships with its tenants, and causing King
24 financial, legal, and managerial burdens due to the unsettled state of affairs.
25 24. WHEREFORE, Plaintiff‘ prays for relief against Cross-Defendants, and each of
“£55m 26 them, as more fully set forth below.
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THIRD CAUSE OF ACTION
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(Breach of Contract)
28
CROSS-COMPLAINT . 6
l 25. Cross-Complainant incorporates by reference the allegations of Paragraphs l
N through 24 as though set forth in full herein.
26. As set forth herein, King is a successor party to a written agreement with DBP
regarding their respective rights pertaining to the use of the Adjacent Common Area.
27. King has performed all conditions on its part to be performed under the written
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agreement, except those for which King’s performance is excused because of conduct of Cross-
Defendant DBP.
28. The written agreement provides that DBP must not “interfere with the lawful use
of [King’s] Parcel and the activities conducted thereon.” As set forth herein, DBP has
10 interfered with the use of King’s Parcel and the lawful commercial activities conducted
11 thereon.
12 29. The written agreement provides that DBP must actually undertake the
13 maintenance and repair of the Adjacent Common Area every other calendar year, and that DBP
I
14 has the right to do so.
15 30. The written agreement also provides that DBP must pay for one-half of the costs
16 incurred in maintaining and repairing the Adjacent Common Area. Despite demands from
17 King to pay, DBP has refused to do so, in an amount to be determined at trial, but
l8 approximately $14,000.00.
19 31. WHEREFORE, Plaintiff prays for relief against Cross-Defendants, and each of
20 them, as more fully set forth below.
21 FOURTH CAUSE OF ACTION
(Injunctive Relief Against Cross-Defendant)
22
23 32. Cross~Comp1ainant incorporates by reference the allegations of Paragraphs l
24 through 30 as though set forth in filll herein.
25 33. King has no remedy at law for the conduct complained of above. Damages do
mifiamlweht . . . . - . . . . . -
lime M1, 26 not provrde compensation to King, its tenants, or rts tenants’ mvrtees for their inability to use
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‘213321,, 27 the parking spaces located on King’s Property as intended. Interference with a real property
Fu (“W 761-4292
28 interest may be remedied by injunctive relief.
CROSSeCOMPLAlNT . 7
l 34. WHEREFORE, Plaintifi prays for relief against Cross-Defendants, and each of
2 them, as more fully set forth below.
3 ///
4 ///
5 WHEREF ORE, Cross-Complainant prays as follows:
6 l. For a declaration that King is entitled to maintain at least thirty-four (34) hourly
7 parking signs so as to reserve at least thirty-four (34) parking spaces for time-limited use in the
8 same parking locations that time-limited parking has been imposed for approximately the past
9 decade.
10 2. For a declaration that DBP’s over-use of its contractual easement right to
ll parking spaces located on King’s Property is so severe that it has essentially prevented use by
12 the servient tenement (the King Property’s own use) such that the easement itself has
13 terminated by over-use; or, in the alternative, that DBP’s current and recent historical use of the
l4 parking spaces on King’s Property is unreasonably burdensome, entitling King to other relief
15 regarding same as set forth herein.
l6 3. For an order preventing DBP, its partners, tenants, subtenants, concessionaires,
l7 and their clients, customers, visitors, licensees, invitees, and guests from over-use of parking
18 spaces located on the King Property;
l9 4. For an order requiring DBP, its partners, tenants, subtenants, concessionaires,
20 and their clients, customers, visitors, licensees, invitees, and guests to employ and pay for one
21 or more of the following low~impact parking solutions during bowling tournaments held at the
22 DBP property:
23 a. Valet parking free to drivers on the portion of the DBP Property
24 containing parking spaces;
25 b. Temporarily roping off and reserving for the exclusive use of King’s
‘3%s 26 tenants, subtenants, concessionaires, and their clients, customers,
27 visitors, licensees, invitees, those parking spaces located on the King
figlgifififl
28 Property;
CROSS-COMPLAINT _
8
l c. Off-site parking with free (to riders) shuttle service to and from the
l\.)
bowling alley.
3 5. For general damages in an amount in excess of the jurisdiction of this court plus
4 interest at the legal rate;
5 6. For special damages in an amount according t0 proof;
6 7. For attorney’s fees and costs incurred herein; and
7 8. For such other and fuither relief as the eotut may deem just and proper.
8 Dated: Auaust l. 2016 ROSSl. l-lAMERSLOUGl-I. REISCHL & CHUCK
12 BY: w/Ml/WMV/P/fi/
RONALD R. Rosst/
ll MADOLYN o. ORR
Attorneys for Defendant & Cross-Complainant
12 KING PLAZA CENTER. LLC
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CROSS~COMPLAINT 9
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SANTA CLARA:
I am a citizen of the United States and employed in the county aforesaid; I am over the
ageof eighteen years, and not a party to the within action; my business address is 1960 The
Alameda, Suite 200, San Jose, CA 95126-1493. On the date set forth below I served the
documents described below:
\OOOQQU'I-bU-INW
KING PLAZA CENTER, LLC’S CROSS-COMPLAINT FOR: Declaratory
Relief re Hourly Parking Signs, Declaratory Relief re: Over-Use of Parking
Easement. Breach of Contract. and Iniunctive Relief
0n the following person(s) in this action by placing a true copy thereof enclosed in a sealed
envelope addressed as follows:
Steven B. Piser, Esq.
LAW OFFICES OF STEVEN E. PISER
A Professional Corporation
1300 Clay Street, Suite 1050
Oakland, CA 94612
510-835-5582
510-832-1717 Fax
John L. Fitzgerald, Esq.
LAW OFFICES OF JOHN L. FITZGERALD
101 California Street, Suite 2300
San Francisco, CA 94111
415-689-1209
Attorneys for Plaintiff
DBP INVESTMENTS, A California General
Partnership
NNNNNNNNMI-di-av-hu-av-ap-amfipw
“\IQLIIQUJNHO\O°°\IO\IJI->wwflo
l (BY MAIL? I sealed and placed for collection and mailing such envelope(s) with
postage thereon fu 1y prepaid, addressed as stated above, in the basket for outgoing mail at
Rossi, Hamerslough, Reischl & Chuck. It is the firm’s ordinary business practice that all mail
placed in the basket is collected and taken for mailing that same day by an employee of the
U.S. Postal Service.
[I] (BY CERTIFIED RETURN RECEIPT REQUESTED MAIL) ) I sealed and placed for
collection and mailing such envelope(s) with postage thereon fully prepaid, addressed as stated
above, in the basket for outgoing mail at Rossi, Hamerslough, Reischl 8c Chuck. It is the firm’s
ordinary business practice that all mail placed in the basket is collected and taken for mailing
'
that same day by an employee of the U.S. Postal Service.
U $31K PERSONAL SERVICE) I caused such envelope(s) to be delivered by hand this
date to e offices of the addressee(s).
Roan.Ibncnimgh.
Rriidfl k (husk
I960 TheMunch El (BY ELECTRONIC TRANSMISSION) I caused such document(s) to be transmitted by
Suite 2m
San lax CA lectronic transmission on this date to the offices of addressee(s). The transmission was
“RIM”! reported as complete and without error.
(1118) 251-4257
F“ (4|!) 261-4291
[:1 BY FACSIMILE) I caused such document(s) t0 be transmitted by facsimile on this
date to t e offices of addressee(s). The transmission was reported as complete and without
error. A copy olthe transmission report, properly issued by the transmitting facsimile machine.
will be attached hereto alter transmission.
IQ
‘Cl (BY FEDERAL EXPRESS) l enclosed said document(s) in an envelOpe or package
b)
provided by FedEx and addressed to the persons at the addresses listed on this Prool'of Service.
l placed the envelope or package for collection and overnight delivery at an oft'ice or a
regularly utilized drop box ol‘ l-"cx or delivered such document(s) to a courier 0r driver
authorized by FedEx to receive documents.
U1
(STATE) l declare under penalty ofperjury under the laws of the State ofCalifornia
that the foregorng is true and correct.
Executed on August 1, 2016 at San Jose, California.
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Preview
$5M METE E E HE Q CQUNW 1 RONALD R. ROSS] (SBN 43067) 1-; MADOLYN D. ORR (SBN 280608) Au'g—.. 1 2 ROSSl, HAMERSLOUGH, REISCHL & CHUCK 075 1960 The Alameda, Suite 200 051m“ "595" .~'."-"'-' 11 2, U) San Jose, CA 95126-1493 Tel: Fax: (408) 261-4252 (40s) 261-4292 2' . - _ . ___-.,_, ‘r ' “- 5 Attorneys for Defendant & Cross-Complainant KING PLAZA CENTER, LLC 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 FOR THE COUNTY OF SAN MATEO 8 “191/ 9 tn DBP INVESTMENTS, a California General Case No.1 CIV53 8897 -< 10 Partnership, ‘l'l CROSS-COMPLAINT FOR: > ‘(v/owl‘ ll Plaintiff, >< 1. Declaratory Relief re: Hourly 12 vs. Parking Signs 2. Declaratory Relief re: Over-Use of 13 KING PLAZA CENTER, LLC, a California Parking Easement Limited Liability Company, and DOES 1-10, 3. Breach of Contract 14 4. Injunctive Relief Defendants. 15 KING PLAZA CENTER, LLC, a Delaware 16 Limited Liability Company, — — -— -—- -— —- -— --— -—» 17 Cross-Complainant, - - '0111530897 cP 18 vs. 1 Cross Complaint ; 133179 ' 19 DBP INVESTMENTS, a California General Partnership and ROES 1 through 10, 1 ii“ ..._ 20 _. Cross-Defendants. 21 22 23 On information and belief, Cross-Complainant KING PLAZA CENTER, LLC alleges as 24 follows: 25 PRELIMINARY ALLEGATIONS Raw Sun: 200 26 1. Cross-Complainant King Plaza Center, LLC (“Cross~Complainant” or “King”) 5:11 lav; CA (511’,1112, 27 is a Delaware limited liability company and owner of that certain parcel of real property located Fan (408)210-4292 28 approximately at the intersections of King Drive and Callan Boulevard, and commonly known CROSS-COMPLAINT l 1 as King Plaza, identified by the San Mateo County Assessor as parcel number 91-17-175-22 2 (hereinafter “King Property”). 3 2. The King Property shares a boundary with an adjoining parcel of real property 4 located at and commonly known as 900 King Dr, Daly City, identified by the San Mateo 5 County Assessor as parcel number 91-17-175-20 (hereinafier the “DBP Property”). The 6 present owner of the DBP Property is Cross-Defendant DBP Investments, a California general 7 partnership (“DBP”). 8 3. Collectively, the King Property and the DBP Property are referred to herein as 9 the “Adjacent Properties.” 10 4. In or about 2007, Cross-Complainant King purchased the King Property from ll non-party King Plaza Partners, a California general partnership (“KPP”). 12 5. Prior to 1997, the two parcels now known as the Adjacent Properties were l3 comprised of three smaller parcels of real property, then identified by the SanMateo County l4 Assessor as parcel numbers (“APN”) 091-175-150, APN 091-175-180, and APN 091-175-190. 15 These three smaller parcels were then owned by DBP and King’s predecessor KPP. l6 6. In the 1990s, DBP and-KPP sought to consolidate the three smaller parcels into l7 two larger parcels; retain the smaller resulting parcel on which the bowling alley stood; and to 18 sell off the larger resulting parcel (the “Consolidation and Redevelopment”). To do this 19 required the preparation and recordation of a parcel map, and approval of the redevelopment by 20 the City of Daly City (hereinafier the “City”). 2] 7. In or about 1990, as part of the process of seeking approval for the 22 redevelopment from the City, DBP and KPP represented to the City that the proposed parcel 23 changes would not interfere with the parking needs of the pre-existing and proposed 24 commercial users of the King Property, because the bowling alley’s use of the surrounding 25 parking would not change: that is, the bowling alley patrons visiting the DBP Property would “Fg-fifi 26 continue to use parking spaces mostly in the evenings, leaving the parking spaces available for of the retail and other commercial businesses at the King Property during the Jig; 27 use by patrons 28 day. On that basis the City gave conditional approval to the Consolidation and Redevelopment. CROSS-COMPLAINT 2 1 8. Concurrently with the process of seeking City approval for the Consolidation 2 and Redevelopment, DBP and KPP entered into a written agreement regarding various topics, 3 including parking and maintenance of certain portions of the newly consolidated Adjacent 4 Parcels: the “DBP Common Area” which comprises portions of land located on the DBP 5 Property, owned by DBP; and the “KPP Common Area,” which comprises portions of land located on the King Property, then owned by KPP, and now owned by King. Hereinafier, the DBP Common Area and the KPP Common Area are collectively referred to as the “Adjacent \OOO\IO\ Common Area.” 9. Among other things, this agreement between DBP and KPP required DBP to 10 pay for one-half of all the costs of maintaining and repairing the Adjacent Common Area; and 1 1 to perform the actual maintenance and repair every other calendar year. The maintenance and 12 repair DBP is obligated to perform under the agreement includes, but is not limited to: 13 resurfacing pavement; restriping; cleaning, sweeping, and other janitorial services; policing and 14 security; purchase, construction and maintenance of refuse receptacles intended for public use; 15 and lighting. Under the terms of the agreement, if DBP fails to perform these obligations in 16 one calendar year, King has the right (but not the obligation) to perform them instead in the 17 following calendar year, and vice versa. 18 10. Despite King’s several attempts to urge DBP to perform its duties under the l9 agreement and/or cooperate with King’s attempts t0 obtain estimates and hire vendors to 26 perform them, DBP has failed to undertake them, instead demands that King undertake them, 21 and in addition has obstructed King from its attempts to perform them in DBP’s stead by — 22 among other things — refusing to pay for 50% of the costs of maintaining and repairing the 23 Adjacent Common Area; obstructing vendors hired by King to conduct the maintenance and 24 repair called for under the agreement; failing to provide adequate security for its bowling alley 25 tenant’s regular late-night invitees leading to physical assaults and the need for police Roi-ti Nammlouflg harm» I960 The Aha-nah 26 intervention. Suit: 2m (,sfiiiifi, 27 11. In addition, despite DBP’s representations that the bowling alley’s patrons In (£0!) lid-4291 28 would primarily use parking needs 0n the Adjacent Common Area in the evenings, recently the i CROSS-COMPLAINT 3 1 use of parking on the King Property by patrons, employees, etc. of the bowling alley (DBP’s 2 tenant) has increased during the day as well. This is particularly problematic during bowling 3 tournaments held at the bowling alley, such that — during weekend tournaments in particular 4 but occasionally during large league play and weekdays as well — virtually all of the parking 5 spaces within the entire Adjacent Common Area (both the DBP Common Area and the KPP 6 Common Area) are filled by bowling alley patrons with very little tum-over — i.e., their vehicles occupy the same parking spaces for the entire duration of the day-long and/or evening- \DOOQ long events (some lasting 10 or more hours), providing no possibilities that any of these spaces could be used by patrons or employees of the other commercial businesses located on the 10 adjacent King Pr0perty. This problem has increased to the point that DBP’s over-use of the 11 parking spaces located on King’s Property has virtually eliminated King’s ability to use them. 12 This use by DBP and its tenants, invitees, etc. is contrary to the provision of the written l3 agreement which requires DBP to exercise its easement rights “so as not to interfere with the l4 lawful use of the other’s [King’s] Parcel and the activities conducted thereon.” 15 12. King has approached DBP multiple times to suggest cooperative, non-invasive 16 solutions to the parking dilemma posed by DBP’s over-use of the parking spaces located on the l7 King Property, including but not limited to: l8 a. place reasonable time-limits (e.g., two-hour/three-hour/five-hour l9 parking) on parking spaces in the Adjacent Common Area by signage, 20 etc. (in addition to the 34 spaces of one-hour parking that pre-date 21 King’s purchase of the King Property); 22 b. valet parking; 23 c. temporarily reserving some parking for non-bowlers during bowling 24 tournaments; 25 d. obtaining permission from other nearby property owners whose parking Eififsfi 26 options are not in use during the weekend (e. g., a nearby elementary 27 school, an empty lot, etc.) to reserve parking for bowlers there either “gig; 28 CROSS-COMPLAINT 4 1 with or without a temporary shuttle service to drive bowlers from the off- 2 site reserved parking to the bowling alley; etc. 3 13. All of King’s suggestions have been rejected by DBP. Instead, DBP has 4 asserted that the only thing DBP thinks will help the parking situation is for King to construct (or participate in constructing) a multi-million dollar, parking garage on King’s own property and allow bowlers to park there. O\OO<)\IO\‘Jt l4. Prior to King’s purchase of the King Property, thirty-four (34) parking spaces located on the King Property were reserved by permanent signs for hourly parking, and these parking spaces continue to be restricted to hourly parking. When King arranged for the parking areas to be repaved and restriped in 2015, these signswere temporarily removed to allow for l 1 the maintenance and repair of the parking areas, and then were replaced upon conclusion of the 12 work. DBP has recently asserted that any such signage is no longer allowed. King disputes l3 this. 14 FIRST CAUSE 0F ACTION (Declaratory Relief re 34 Hourly Parking Signs Against Cross-Defendant) 15 16 15. Cross-Complainant incorporates by reference the allegations of Paragraphs 1 17 through 12 as though set forth in full herein. ‘ 18 16. An actual controversy has arisen and now exists between King and DBP 19 concerning their respective rights and duties in that King contends the signs reserving thirty- 20 four (34) parking spaces to use for a certain number of hours have existed to reserve these 21 spaces for hourly use for more than a decade - including prior to King’s purchase of the King 22 Property — with DBP’s prior acquiescence; whereas DBP is apparently now taking the position 23 that the decades-long reservation of parking spaces in this manner is somehow forbidden, and 24 has sued King in part for King’s maintenance of these hourly parking signs. 25 l7. King desires a judicial determination of King’s and DBP’s respective rights and Rani, thmsloum WWW“ 26 duties, and a declaration as to the right to continue maintaining hourly parking signs so as to lwflflzc/khnuh Sufism Swim CA ,,2;',’,‘;,'5’,’,, 27 reserve thirty-four (34) spaces for hourly use. Fl! NIH) 1614292 28 CROSS~COMPLAINT 5 l 18. A judicial declaration is necessary and appropriate at this time under the circumstances because defending itself against DBP’s new position regarding these thirty-four Jib-)N (34) hourly parking signs and the acrimony surroundings same is causing King financial, legal, and managerial burdens due to the unsettled state of affairs. 19. WHEREFORE, Plaintiff prays for relief against Cross~Defendants, and each of them, as more fully set forth below. \OOOQOUI SECOND CAUSE OF ACTION (Declaratory Relief re: DBP’s Over-Use of the Parking Easement over King’s Property) 20. Cross-Complainant incorporates by reference the allegations of Paragraphs l 10 through 16 as though set forth in full herein. 11 21. An actual controversy has arisen and now exists between King and DBP l2 concerning their respective rights and duties under the aspects of the written agreement l3 pertaining to DBP’s express easement for use of parking spaces on King’s Property, in that l4 King contends that the extreme use of the parking spaces on King’s Property by bowlers 15 particularly during the frequent tournaments and bowling leagues constitutes over-use of l6 whatever parking easement rights DBP may have; whereas DBP apparently disputes this. 17 22. King desires a judicial determination of King’s and DBP’s respective n'ghts and l8 duties regarding use of the parking spaces located on King’s Property, and a declaration 19 specifying same. 20 23. A judicial declaration is necessary and appropriate at this time under the 21 circumstances because the current use of parking spaces on King’s Property by DBP, its 22 bowling alley tenant, and their invitees is negatively impacting King’s own tenants located on 23 the King Property, and therefore King’s relationships with its tenants, and causing King 24 financial, legal, and managerial burdens due to the unsettled state of affairs. 25 24. WHEREFORE, Plaintiff‘ prays for relief against Cross-Defendants, and each of “£55m 26 them, as more fully set forth below. $ui|=2tn THIRD CAUSE OF ACTION “"m Attila 27 (Breach of Contract) 28 CROSS-COMPLAINT . 6 l 25. Cross-Complainant incorporates by reference the allegations of Paragraphs l N through 24 as though set forth in full herein. 26. As set forth herein, King is a successor party to a written agreement with DBP regarding their respective rights pertaining to the use of the Adjacent Common Area. 27. King has performed all conditions on its part to be performed under the written ©00\10\'~h4>w agreement, except those for which King’s performance is excused because of conduct of Cross- Defendant DBP. 28. The written agreement provides that DBP must not “interfere with the lawful use of [King’s] Parcel and the activities conducted thereon.” As set forth herein, DBP has 10 interfered with the use of King’s Parcel and the lawful commercial activities conducted 11 thereon. 12 29. The written agreement provides that DBP must actually undertake the 13 maintenance and repair of the Adjacent Common Area every other calendar year, and that DBP I 14 has the right to do so. 15 30. The written agreement also provides that DBP must pay for one-half of the costs 16 incurred in maintaining and repairing the Adjacent Common Area. Despite demands from 17 King to pay, DBP has refused to do so, in an amount to be determined at trial, but l8 approximately $14,000.00. 19 31. WHEREFORE, Plaintiff prays for relief against Cross-Defendants, and each of 20 them, as more fully set forth below. 21 FOURTH CAUSE OF ACTION (Injunctive Relief Against Cross-Defendant) 22 23 32. Cross~Comp1ainant incorporates by reference the allegations of Paragraphs l 24 through 30 as though set forth in filll herein. 25 33. King has no remedy at law for the conduct complained of above. Damages do mifiamlweht . . . . - . . . . . - lime M1, 26 not provrde compensation to King, its tenants, or rts tenants’ mvrtees for their inability to use Suflflm JomCA ‘213321,, 27 the parking spaces located on King’s Property as intended. Interference with a real property Fu (“W 761-4292 28 interest may be remedied by injunctive relief. CROSSeCOMPLAlNT . 7 l 34. WHEREFORE, Plaintifi prays for relief against Cross-Defendants, and each of 2 them, as more fully set forth below. 3 /// 4 /// 5 WHEREF ORE, Cross-Complainant prays as follows: 6 l. For a declaration that King is entitled to maintain at least thirty-four (34) hourly 7 parking signs so as to reserve at least thirty-four (34) parking spaces for time-limited use in the 8 same parking locations that time-limited parking has been imposed for approximately the past 9 decade. 10 2. For a declaration that DBP’s over-use of its contractual easement right to ll parking spaces located on King’s Property is so severe that it has essentially prevented use by 12 the servient tenement (the King Property’s own use) such that the easement itself has 13 terminated by over-use; or, in the alternative, that DBP’s current and recent historical use of the l4 parking spaces on King’s Property is unreasonably burdensome, entitling King to other relief 15 regarding same as set forth herein. l6 3. For an order preventing DBP, its partners, tenants, subtenants, concessionaires, l7 and their clients, customers, visitors, licensees, invitees, and guests from over-use of parking 18 spaces located on the King Property; l9 4. For an order requiring DBP, its partners, tenants, subtenants, concessionaires, 20 and their clients, customers, visitors, licensees, invitees, and guests to employ and pay for one 21 or more of the following low~impact parking solutions during bowling tournaments held at the 22 DBP property: 23 a. Valet parking free to drivers on the portion of the DBP Property 24 containing parking spaces; 25 b. Temporarily roping off and reserving for the exclusive use of King’s ‘3%s 26 tenants, subtenants, concessionaires, and their clients, customers, 27 visitors, licensees, invitees, those parking spaces located on the King figlgifififl 28 Property; CROSS-COMPLAINT _ 8 l c. Off-site parking with free (to riders) shuttle service to and from the l\.) bowling alley. 3 5. For general damages in an amount in excess of the jurisdiction of this court plus 4 interest at the legal rate; 5 6. For special damages in an amount according t0 proof; 6 7. For attorney’s fees and costs incurred herein; and 7 8. For such other and fuither relief as the eotut may deem just and proper. 8 Dated: Auaust l. 2016 ROSSl. l-lAMERSLOUGl-I. REISCHL & CHUCK 12 BY: w/Ml/WMV/P/fi/ RONALD R. Rosst/ ll MADOLYN o. ORR Attorneys for Defendant & Cross-Complainant 12 KING PLAZA CENTER. LLC S:\CL\R\Rl6l l3\PLDGS\Cross-C0mplaint FlNAL FOR FILINGAOCX Elmi. ltml-wrlt. mum .s (‘mt 26 I'Kdt 11w J-Luuuh Slum I"! San low. CA 95120414“): (mummy: 27 r“ at“) zst- rm CROSS~COMPLAINT 9 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SANTA CLARA: I am a citizen of the United States and employed in the county aforesaid; I am over the ageof eighteen years, and not a party to the within action; my business address is 1960 The Alameda, Suite 200, San Jose, CA 95126-1493. On the date set forth below I served the documents described below: \OOOQQU'I-bU-INW KING PLAZA CENTER, LLC’S CROSS-COMPLAINT FOR: Declaratory Relief re Hourly Parking Signs, Declaratory Relief re: Over-Use of Parking Easement. Breach of Contract. and Iniunctive Relief 0n the following person(s) in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: Steven B. Piser, Esq. LAW OFFICES OF STEVEN E. PISER A Professional Corporation 1300 Clay Street, Suite 1050 Oakland, CA 94612 510-835-5582 510-832-1717 Fax John L. Fitzgerald, Esq. LAW OFFICES OF JOHN L. FITZGERALD 101 California Street, Suite 2300 San Francisco, CA 94111 415-689-1209 Attorneys for Plaintiff DBP INVESTMENTS, A California General Partnership NNNNNNNNMI-di-av-hu-av-ap-amfipw “\IQLIIQUJNHO\O°°\IO\IJI->wwflo l (BY MAIL? I sealed and placed for collection and mailing such envelope(s) with postage thereon fu 1y prepaid, addressed as stated above, in the basket for outgoing mail at Rossi, Hamerslough, Reischl & Chuck. It is the firm’s ordinary business practice that all mail placed in the basket is collected and taken for mailing that same day by an employee of the U.S. Postal Service. [I] (BY CERTIFIED RETURN RECEIPT REQUESTED MAIL) ) I sealed and placed for collection and mailing such envelope(s) with postage thereon fully prepaid, addressed as stated above, in the basket for outgoing mail at Rossi, Hamerslough, Reischl 8c Chuck. It is the firm’s ordinary business practice that all mail placed in the basket is collected and taken for mailing ' that same day by an employee of the U.S. Postal Service. U $31K PERSONAL SERVICE) I caused such envelope(s) to be delivered by hand this date to e offices of the addressee(s). Roan.Ibncnimgh. Rriidfl k (husk I960 TheMunch El (BY ELECTRONIC TRANSMISSION) I caused such document(s) to be transmitted by Suite 2m San lax CA lectronic transmission on this date to the offices of addressee(s). The transmission was “RIM”! reported as complete and without error. (1118) 251-4257 F“ (4|!) 261-4291 [:1 BY FACSIMILE) I caused such document(s) t0 be transmitted by facsimile on this date to t e offices of addressee(s). The transmission was reported as complete and without error. A copy olthe transmission report, properly issued by the transmitting facsimile machine. will be attached hereto alter transmission. IQ ‘Cl (BY FEDERAL EXPRESS) l enclosed said document(s) in an envelOpe or package b) provided by FedEx and addressed to the persons at the addresses listed on this Prool'of Service. l placed the envelope or package for collection and overnight delivery at an oft'ice or a regularly utilized drop box ol‘ l-"cx or delivered such document(s) to a courier 0r driver authorized by FedEx to receive documents. U1 (STATE) l declare under penalty ofperjury under the laws of the State ofCalifornia that the foregorng is true and correct. Executed on August 1, 2016 at San Jose, California. /i t Ml dull @tl0MllL/l Cindy Ajljmy Si\Cl.\R\R ml l3\P|,l)GS\(.'/\l"l'|()z\lDOCX U IQ [Q IQ b)