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ELECTRONICALLY FILED
Superior Court of California,
County of Placer
07/24/2020
By: Laurel Sanders, Deputy Clerk
Paul Anthony Wamer (SBN 112168)
1624 Santa Clara Drive, Suite 220
Roseville, California 95661
Telephone: (916) 996-3100
Facsimile: (916) 789-7557
Attomey for Plaintiff Voyager Restaurant Group, Inc.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF PLACER
VOYAGER RESTAURANT GROUP, INC., ai Case No.: S-CV-035599
California corporation l
| PLAINTIFF’S REPLY TO OSC RE
Plaintiff, [ARBITRATION
v. t
SONORA GASOLINE CORPORATION, a
California corporation formerly known as
SONORA PETROLEUM, INC., a California
corporation, GURRAJ SINGH GREWAL,
SABAL FINANCIAL GROUP LP, a Delaware
limited partnership; 2012-SIP-1 VENTURE Heari
LLC, a Delaware limited liability company as |Heating
successor to TENNESSEE COMMERCE Date: August 11, 2020
BANK, a Tennessee State chartered bank, Dept: 42 _—
ROSEVILLE PETROLEUM, INC., a California
corporation, NIRMAL SINGH, and DOES ONE
through TWENTY, inclusive,
Defendants.
STATEMENT OF FACTS
Plaintiff had a lease for the restaurant space on the property commonly known as 2998
Foothills Boulevard, Roseville, CA, 95661, (the “Property”) under a lease (the “Lease”).
Defendants Sonora Gasoline Corporation and Gurraj Singh Grewal failed to provide
tenant construction funds and an improvement loan after several requests to perform in
accordance with the Lease.
PLAINTIFF'S REPLY TO OSC RE ARBITRATION
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Although fully aware and cognizant of Plaintiffs lease, Defendant RPI and Defendant
Singh asserted control of the entire premises, including the restaurant premises, under their lease,
and, thereby, interfered with Voyager’s lease and quiet enjoyment thereof to the detriment and
damage of V oyager.
Additionally, Defendants engaged in unlawful, unfair, and fraudulent business acts oy
practices in their conduct pertaining to the Lease, and control of the premises, including, but not
limited to, asserting control of the entire premises, including the restaurant premises, under their
lease, and, thereby, interfered with Voyager’s lease and quiet enjoyment thereof and tha
performance of the landlord with regard to the lease to the detriment and damage of Voyager, an
their asserting of their own and other pecuniary interests of those Defendants, and each of them.
Plaintiff has suffered the loss of good will and loss of profits due to Defendants’ conduct
resulting in the inability to open the restaurant and the performance of regular functions in its
normal course of business.
On or about August 27, 2018, the parties agreed to arbitration in lieu of trial, and the Cour
appointed the Honorable Judge Gilbert to preside with Judge Ramirez as alternate.
On September 14, 2018, Kevin Singer, the court appointed Receiver for the property, stated]
that:
“I was told by Nirmal Singh/Roseville Petroleum, Inc. that the restaurant space on the
property was included in his lease.
I endeavored to resolve the competing claims by first negotiating an amended lease with]
Roseville Petroleum, Inc./Nirmal Singh, and requested V oyager Restaurant Group, Inc. to]
await the resolution of that negotiation to begin resolution of its claim.
I resolved and amended lease with Roseville Petroleum, Inc. with approximately $4,00
reduction in rent and RPI released its claim as to the restaurant space.
I was unable to resolve V oyager’s claims because the Receivership was terminated whe!
the property was sold.
I asked Gurraj Grewal/Sonora Petroleum, Inc. about the validity of Voyager's lease an
landlord and he stated it was a valid lease.” (See Declaration of Kevin Singer Regarding|
Motion for Summary Judgment filed in support of a Motion for Reconsideration heard o
PLAINTIFF'S REPLY TO OSC RE ARBITRATION
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November 15, 2019, since it had been unavailable to the Court on September 20, 2018.)
On September 17, 2018, a key witness for plaintiff became unavailable out of state an
may not be available until April 2021.
On September 20, 2018, the Court heard a motion for summary judgment in a related]
matter (Parmar LLC vs Voyager Restaurant Group, Inc. SCV 0039888) and on December 7, 2018]
the Court entered judgment that the Voyager and Sonora Petroleum lease agreement which went
into effect on August 31, 2011, the Lease was ineffective as to Sonora’s successor, Parmar in that
it expired by its own terms two years later. After Notice of Entry of Judgment on June 4, 2019)
Voyager appealed this decision to the Third District of California. That appeal is still pending.
ARGUMENT
A. Arbitration at this time is improper because proceeding was “impossible,
impracticable or futile”.
These tolling provisions “must be liberally construed consistent with the policy favoring trial
on the merits.” [Dowling v. Farmers Ins. Exchange (2012) 208 CA 4th 685, 693, 145 CR3d 748
754]
1. The Grant of Summary J udgment and subsequent A ppeal in the related case
makes it “impossible, impracticable or futile” to try this matter until the A ppeal is
resolved
In determining whether it is impracticable or futile to bring an action to trial, the court may
consider the potential impact of pending appellate proceedings in another action, without regar
to whether the two actions share common parties. [Dowling v. Farmers Ins. Exchange (2012) 208)
CA 4th 685, 697-699, 145 CR3d 748, 757—impracticability determination includes “the potentia
impact on the case of pending appellate proceedings against another defendant”).
PLAINTIFF'S REPLY TO OSC RE ARBITRATION
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The Second and Third Causes and of action for Interference in Prospective Business
Advantage of the Third A mended Complaint in this matter against moving Defendants, as well ag
the Fifth Cause of Action for Unfair Businesses Practices and Competition necessarily relate to
the underlying lease. As reported by the Receiver and admitted by Defendants, Defendants
asserted that the Roseville Petroleum lease included the restaurant space until it was modified b
the Receiver in exchange for a rent reduction. The Lease which is the subject of this litigation an
asserted by Plaintiff, was the subject of the related matter which is on appeal. Accordingly, the
issues in this matter cannot be resolved until a final decision is made in that matter.
2. The cost of the Arbitration makes it “impossible, impracticable or futile”
In part due to Defendants’ action in this matter, V oyager did not have the funds availabld
to proceed with the cost of the Arbitrator appointed by the Court.
3. The unavailability of a key witness for the Plaintiff at the Arbitration makes if
“impossible, impracticable or futile”
On September 17, 2018, a key witness for plaintiff became unavailable out of state an
may not be available until April 2021.
B. The Arbitrator should handle the proceedings
Plaintiffs lack of diligence in the arbitration proceedings is for the arbitrator to handle; it is
not ground for dismissal of the lawsuit. [Byerly v. Sale (1988) 204 CA 3d 1312, 1316, 251 CR 749
751; Brock v. Kaiser Found. Hosps. (1992) 10 CA4th 1790, 1799, 13 CR2d 678, 685; Blake v)
Ecker (2001) 93 CA 4th 728, 737-738, 113 CR2d 422, 428-429]
This seems the preferable view. Arbitration proceedings are outside the court system and thug
should be controlled by the arbitrator, not the courts.
PLAINTIFF'S REPLY TO OSC RE ARBITRATION
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CONCLUSION
For the various reasons above, this matter should be continued to May 2021.
Dated: 24Jul20
‘aul AY
Attorney for
Esq
Fintitt Voyager Restaurant
Group, Inc.
PLAINTIFF’S REPLY TO OSC RE ARBITRATION
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PROOF OF SERVICE
I am a citizen of the United States and am employed in Placer County, California. I am
over the age of eighteen years and am not a party to the above-entitled action. My business
address is: 1624 Santa Clara Drive, Suite 220, Roseville, CA, 95661.
On the date specified below, I caused the following document(s) to be served:
Reply to OSC
Memorandum of Points and Authorities in Opposition to Motion to Dismiss for Failure to}
Prosecute
i
(X) (BY MAIL) I am employed in the County where the mailing described below occurred, and am
readily familiar with the business practice for collection and processing of correspondence for mailing
with the United States Postal Services. I placed a true copy thereof [to which was attached a copy of this
document(s)] in a sealed envelope(s) with postage thereon fully prepaid. The envelope(s) will be
deposited with the United States Postal Service on this day in the ordinary course of business in
Roseville, California, following ordinary business practices.
O (BY PERSONAL SERVICE) I caused such envelope(s) to be delivered by hand to the
addressee(s) listed below.
O (BY FACSIMILE AND MAIL) I caused the document(s) listed above to be served by
telefaxing said document(s) to the number(s) listed below at the location(s) shown as follows and thereon
fully prepaid and deposited the envelope(s) with the United States Postal Service (as described in the
service by mail above).
(BY ELECTRONIC SERVICE) I caused the document(s) listed above which have been
scanned to be served by e-mail to the addressee(s) listed below on July 7, 2011. The transmission was
reported as complete without error.
my (BY FEDERAL EXPRESS) | caused the document(s) to be served by placing a true copy
thereof [to which was attached a copy of this document(s)] in a sealed Federal Express overnight
envelope bearing the address(es) listed below. The overnight envelope was then picked up by a Federal
Express employee at the above business address in Roseville, California, or was deposited in a Federal
Express marked drop box with encoding for overnight delivery before the expiration of the last pick up
for overnight delivery to the address(es) listed below.
Matthew C. Bradford / Mare B. Robinson
ROBINSON BRADFORD LLP
3255 W. March Lane, Suite 230
Stockton, CA 95219
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this decl: is JAJul 20 at Placerville,
California.
PROOF OF SERVICE
lof 1
Preview
10 11 12 13 14 16 17 18 19 20 21 22 23 24 26 27 28 ELECTRONICALLY FILED Superior Court of California, County of Placer 07/24/2020 By: Laurel Sanders, Deputy Clerk Paul Anthony Wamer (SBN 112168) 1624 Santa Clara Drive, Suite 220 Roseville, California 95661 Telephone: (916) 996-3100 Facsimile: (916) 789-7557 Attomey for Plaintiff Voyager Restaurant Group, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF PLACER VOYAGER RESTAURANT GROUP, INC., ai Case No.: S-CV-035599 California corporation l | PLAINTIFF’S REPLY TO OSC RE Plaintiff, [ARBITRATION v. t SONORA GASOLINE CORPORATION, a California corporation formerly known as SONORA PETROLEUM, INC., a California corporation, GURRAJ SINGH GREWAL, SABAL FINANCIAL GROUP LP, a Delaware limited partnership; 2012-SIP-1 VENTURE Heari LLC, a Delaware limited liability company as |Heating successor to TENNESSEE COMMERCE Date: August 11, 2020 BANK, a Tennessee State chartered bank, Dept: 42 _— ROSEVILLE PETROLEUM, INC., a California corporation, NIRMAL SINGH, and DOES ONE through TWENTY, inclusive, Defendants. STATEMENT OF FACTS Plaintiff had a lease for the restaurant space on the property commonly known as 2998 Foothills Boulevard, Roseville, CA, 95661, (the “Property”) under a lease (the “Lease”). Defendants Sonora Gasoline Corporation and Gurraj Singh Grewal failed to provide tenant construction funds and an improvement loan after several requests to perform in accordance with the Lease. PLAINTIFF'S REPLY TO OSC RE ARBITRATION -110 11 12 13 14 16 17 18 19 20 21 22 23 24 26 27 28 Although fully aware and cognizant of Plaintiffs lease, Defendant RPI and Defendant Singh asserted control of the entire premises, including the restaurant premises, under their lease, and, thereby, interfered with Voyager’s lease and quiet enjoyment thereof to the detriment and damage of V oyager. Additionally, Defendants engaged in unlawful, unfair, and fraudulent business acts oy practices in their conduct pertaining to the Lease, and control of the premises, including, but not limited to, asserting control of the entire premises, including the restaurant premises, under their lease, and, thereby, interfered with Voyager’s lease and quiet enjoyment thereof and tha performance of the landlord with regard to the lease to the detriment and damage of Voyager, an their asserting of their own and other pecuniary interests of those Defendants, and each of them. Plaintiff has suffered the loss of good will and loss of profits due to Defendants’ conduct resulting in the inability to open the restaurant and the performance of regular functions in its normal course of business. On or about August 27, 2018, the parties agreed to arbitration in lieu of trial, and the Cour appointed the Honorable Judge Gilbert to preside with Judge Ramirez as alternate. On September 14, 2018, Kevin Singer, the court appointed Receiver for the property, stated] that: “I was told by Nirmal Singh/Roseville Petroleum, Inc. that the restaurant space on the property was included in his lease. I endeavored to resolve the competing claims by first negotiating an amended lease with] Roseville Petroleum, Inc./Nirmal Singh, and requested V oyager Restaurant Group, Inc. to] await the resolution of that negotiation to begin resolution of its claim. I resolved and amended lease with Roseville Petroleum, Inc. with approximately $4,00 reduction in rent and RPI released its claim as to the restaurant space. I was unable to resolve V oyager’s claims because the Receivership was terminated whe! the property was sold. I asked Gurraj Grewal/Sonora Petroleum, Inc. about the validity of Voyager's lease an landlord and he stated it was a valid lease.” (See Declaration of Kevin Singer Regarding| Motion for Summary Judgment filed in support of a Motion for Reconsideration heard o PLAINTIFF'S REPLY TO OSC RE ARBITRATION - 210 11 12 13 14 16 17 18 19 20 21 22 23 24 26 27 28 November 15, 2019, since it had been unavailable to the Court on September 20, 2018.) On September 17, 2018, a key witness for plaintiff became unavailable out of state an may not be available until April 2021. On September 20, 2018, the Court heard a motion for summary judgment in a related] matter (Parmar LLC vs Voyager Restaurant Group, Inc. SCV 0039888) and on December 7, 2018] the Court entered judgment that the Voyager and Sonora Petroleum lease agreement which went into effect on August 31, 2011, the Lease was ineffective as to Sonora’s successor, Parmar in that it expired by its own terms two years later. After Notice of Entry of Judgment on June 4, 2019) Voyager appealed this decision to the Third District of California. That appeal is still pending. ARGUMENT A. Arbitration at this time is improper because proceeding was “impossible, impracticable or futile”. These tolling provisions “must be liberally construed consistent with the policy favoring trial on the merits.” [Dowling v. Farmers Ins. Exchange (2012) 208 CA 4th 685, 693, 145 CR3d 748 754] 1. The Grant of Summary J udgment and subsequent A ppeal in the related case makes it “impossible, impracticable or futile” to try this matter until the A ppeal is resolved In determining whether it is impracticable or futile to bring an action to trial, the court may consider the potential impact of pending appellate proceedings in another action, without regar to whether the two actions share common parties. [Dowling v. Farmers Ins. Exchange (2012) 208) CA 4th 685, 697-699, 145 CR3d 748, 757—impracticability determination includes “the potentia impact on the case of pending appellate proceedings against another defendant”). PLAINTIFF'S REPLY TO OSC RE ARBITRATION - 310 11 12 13 14 16 17 18 19 20 21 22 23 24 26 27 28 The Second and Third Causes and of action for Interference in Prospective Business Advantage of the Third A mended Complaint in this matter against moving Defendants, as well ag the Fifth Cause of Action for Unfair Businesses Practices and Competition necessarily relate to the underlying lease. As reported by the Receiver and admitted by Defendants, Defendants asserted that the Roseville Petroleum lease included the restaurant space until it was modified b the Receiver in exchange for a rent reduction. The Lease which is the subject of this litigation an asserted by Plaintiff, was the subject of the related matter which is on appeal. Accordingly, the issues in this matter cannot be resolved until a final decision is made in that matter. 2. The cost of the Arbitration makes it “impossible, impracticable or futile” In part due to Defendants’ action in this matter, V oyager did not have the funds availabld to proceed with the cost of the Arbitrator appointed by the Court. 3. The unavailability of a key witness for the Plaintiff at the Arbitration makes if “impossible, impracticable or futile” On September 17, 2018, a key witness for plaintiff became unavailable out of state an may not be available until April 2021. B. The Arbitrator should handle the proceedings Plaintiffs lack of diligence in the arbitration proceedings is for the arbitrator to handle; it is not ground for dismissal of the lawsuit. [Byerly v. Sale (1988) 204 CA 3d 1312, 1316, 251 CR 749 751; Brock v. Kaiser Found. Hosps. (1992) 10 CA4th 1790, 1799, 13 CR2d 678, 685; Blake v) Ecker (2001) 93 CA 4th 728, 737-738, 113 CR2d 422, 428-429] This seems the preferable view. Arbitration proceedings are outside the court system and thug should be controlled by the arbitrator, not the courts. PLAINTIFF'S REPLY TO OSC RE ARBITRATION - 410 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONCLUSION For the various reasons above, this matter should be continued to May 2021. Dated: 24Jul20 ‘aul AY Attorney for Esq Fintitt Voyager Restaurant Group, Inc. PLAINTIFF’S REPLY TO OSC RE ARBITRATION Sno10 at 12 13 14 15 16 17 18 19 20 2l 22 29) 24 25 26 27 28 PROOF OF SERVICE I am a citizen of the United States and am employed in Placer County, California. I am over the age of eighteen years and am not a party to the above-entitled action. My business address is: 1624 Santa Clara Drive, Suite 220, Roseville, CA, 95661. On the date specified below, I caused the following document(s) to be served: Reply to OSC Memorandum of Points and Authorities in Opposition to Motion to Dismiss for Failure to} Prosecute i (X) (BY MAIL) I am employed in the County where the mailing described below occurred, and am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Services. I placed a true copy thereof [to which was attached a copy of this document(s)] in a sealed envelope(s) with postage thereon fully prepaid. The envelope(s) will be deposited with the United States Postal Service on this day in the ordinary course of business in Roseville, California, following ordinary business practices. O (BY PERSONAL SERVICE) I caused such envelope(s) to be delivered by hand to the addressee(s) listed below. O (BY FACSIMILE AND MAIL) I caused the document(s) listed above to be served by telefaxing said document(s) to the number(s) listed below at the location(s) shown as follows and thereon fully prepaid and deposited the envelope(s) with the United States Postal Service (as described in the service by mail above). (BY ELECTRONIC SERVICE) I caused the document(s) listed above which have been scanned to be served by e-mail to the addressee(s) listed below on July 7, 2011. The transmission was reported as complete without error. my (BY FEDERAL EXPRESS) | caused the document(s) to be served by placing a true copy thereof [to which was attached a copy of this document(s)] in a sealed Federal Express overnight envelope bearing the address(es) listed below. The overnight envelope was then picked up by a Federal Express employee at the above business address in Roseville, California, or was deposited in a Federal Express marked drop box with encoding for overnight delivery before the expiration of the last pick up for overnight delivery to the address(es) listed below. Matthew C. Bradford / Mare B. Robinson ROBINSON BRADFORD LLP 3255 W. March Lane, Suite 230 Stockton, CA 95219 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this decl: is JAJul 20 at Placerville, California. PROOF OF SERVICE lof 1