Motion Strike

Cal. Super. - 6th Dist.May 11, 2018

Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/17/2018 10:51 AM Reviewed By: E. Fang Case #18CV328188 Envelope: 1730869 18CV328188 Santa Clara - Civil E. Fang #UJN QONLI‘I 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORDS: PLEASE TAKE NOTICE that, 0n December 4, 2018. at 9:00 a.m., 0r as soon as thereafter as counsel may be heard in Department 6 0f the Santa Clara County Superior Court, Stanley Mosk Courthouse, located at 191 N. First Street, San Jose, California 951 13, Defendants SAN ANTONIO CENTER II, LLC, FEDERAL REALTY PARTNERS, INC., FEDERAL REALTY PARTNERS L.P., and FR SAN ANTONIO CENTER, LLC (collectively, “Federal Defendants”) will hereby move t0 strike portions 0f the Complaint (“Complaint”) filed by Plaintiff J. CYRIL JOHNSON FAMILY LIMITED PARTNERSHIP (“Plaintiff’), 0n the grounds stated below. Specifically, Federal Defendants seeks t0 have the following portions of the Complaint stricken: 1. Paragraph 35, line 22: “. . .falsely. . .” 2. Paragraph 40, lines 13-14: “By Virtue of being a successor-in-interest of Johnson, Johnson FLP is vested with the Consent Rights.” 3. Paragraph 42, lines 24-27: “As a result, Johnson FLP has been and is being denied its valuable Consent Rights and other property rights regarding, inter alia, the redevelopment 0f the Center, use 0f the parking area, parking rights and traffic flow, and permissible uses at the Center.” 4. Paragraph 43, line 2: “. . .despite being a party to the RPA as successor-in-interest t0 Johnson.” 5. Paragraph 44: “A cumulative effect of the Amendments is to deny Johnson FLP the aforesaid Consent Rights and other valuable property rights while falsely setting up defendants MGP IX SAC II and FR SAN ANTONIO as the only parties to the Agreement having Approval Rights thereunder, t0 the exclusion of Johnson, its heirs, successors and assigns.” 6. Paragraph 45, line 9: “. . .and exercise its Consent Rights, or not.” 7. Paragraph 46, line 10: “...improperly...” 10153.010 ii SCSC Case No.: 18CV328188 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT \OOOflQUl-b 1o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. Paragraph 47, lines 16-18: “. . .the Consent Rights set forth in the RPA were repeatedly linked not to ‘the owner of certain identified parcels but t0 certain named parties, including Johnson, and the heirs, successors and assigns 0f those specified parties.” 9. Paragraph 58, lines 7-10: “Defendant Federal Realty, in order t0 avoid delays and to facilitate execution of the Second Amendment, as well as the review and approval of it by the City, falsely represented therein that Federal Realty was the ground lessor 0f Parcel Thirteen.” 10. Paragraph 66: “Each 0f defendants Merlone Geier, Federal Realty and City knew 0r should have known at the time the Second Amendment and the Third Amendment were each executed that the owner of Parcel Thirteen would need t0 consent to any amendment of the RPA.” 11. Paragraph 70, lines 5-6: “Exclusion of Johnson FLP from group of Approving Parties. . .” 12. Paragraph 95: “Plaintiff alleges that defendants Merlone Geier Partners, Machado, Buck, Federal Realty and DOES 1-50 each had a contractual duty t0 obtain the written consent and approval of plaintiff to each Amendment of the RPA prior t0 submitting it to the City in supposed satisfaction of said conditions of approval and prior to commencing the redevelopment of the Center as set forth in the amendments, each as hereinabove alleged.” 13. Paragraph 98: “Plaintiff alleges that defendants Merlone Geier Partners, Machado, Buck, Federal Realty and DOES 1-50 defrauded plaintiff by executing each of the Amendments as hereinabove alleged, including, but not limited to, executing the Amendments Without plaintiff’s knowledge and consent, presenting each Amendment t0 the City as inclusive 0f and signed by all owners 0f parcels within the Center, denying plaintiff’s Consent Rights, and/or representing certain parties as having a leasehold interest in the Property, each as hereinabove alleged.” 14. Paragraph 99: “At the time each defendant executed the Amendments as hereinabove alleged, they knew the consent of the owner of Parcel Thirteen was required in order t0 amend the RPA.” 15. Paragraph 103: “Defendants made the representations, and failed t0 even notify plaintiff 0f each Amendment, with the intent t0 defraud plaintiff so that plaintiff would have no 10153.010 iii SCSC Case No.: 18CV328188 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT Ooflm KO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 role in the redevelopment plans for the Center as reflected in the Amendments and could not exercise its Consent Rights.” 16. Paragraph 109: “Defendants Merlone Geier Partners, Buck, Machado, Federal Realty and DOES 1-50 engaged in the acts or conduct hereinabove alleged which have caused, or will cause upon continued redevelopment of the Center, plaintiff to be in violation of the Chili’s Lease due to the fact and to the extent such redevelopment adversely affects Tenant’s parking rights and use of the parking area, adds 0r added restaurant competition, and detracts from Tenant’s Visibility at the Center.” 17. Paragraph 110: “Defendants Merlone Geier Partners, Buck, Machado, Federal Realty and DOES 1-50 either intended to prevent plaintiffs’ performance under the Chili’s Lease, or knew that plaintiffs’ performance under the Chili’s Lease would be more expensive or burdensome, or impossible, and was certain 0r substantially certain to occur as a result of said defendants conduct, acts or omissions as hereinabove alleged.” This Motion is made following the meet and confer 0f counsel pursuant t0 California Code of Civil Procedure (“C.C.P.”) section 435.5 on June 9, 2018. See Declaration of Daniel L. Goodkin filed concurrently herewith. This Motion is brought pursuant to California Code of Civil Procedure §435(b), and will be based 0n this Notice and the accompanying Memorandum of Points and Authorities in support thereof, the attached Declaration of Daniel L. Goodkin, upon all pleadings and papers on file herein, and such further oral and documentary evidence and legal argument as may be presented at the hearing thereon. /// /// /// /// /// 10153.010 iv SCSC Case No.: 18CV328188 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT DATED: July 13, 201 8 GOODKIN & LYNCH, LLP V Daniel LKGdodkin, Esq. Allison J. Law, Esq. Attorneys for Defendants SAN ANTONIO CENTER II, LLC; FEDERAL REALTY PARTNERS, INC; FEDERAL REALTY PARTNERS L.P.; and FR SAN ANTONIO CENTER, LLC 10153. 010 SCSC Case N0.. 18CV328188 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES TABLE OF CONTENTS I. INTRODUCTION ................................................................................................................ 1 II. STATEMENT OF FACTS .................................................................................................. 1 A. The Original RPA and the Consent 0f Rights ..................................................... 1 B. Plaintiff’s Current Interest in Parcel Thirteen ...................................................... 3 C. The Amendments t0 the RPA .................................................................................. 3 III. LEGAL ARGUMENT ......................................................................................................... 4 A. Standard to Grant a Motion t0 Strike ............................................................... 4 B. Plaintiff’s Allegations Which Are False On The Face 0f The Complaint And Attached Exhibits Should Be Stricken.........r .......................................................... 4 C. Plaintiff’s Allegation That it Has Consent Rights is False ................................... 5 1. The Relevant Provisions 0f the RPA Identify the Parties’ Intent ........... 5 i. The RPA Defined Each Partv and Related Each Party Specifically T0 Their Interest in Certain Parcels Comprising the Center............................................................................................... 6 ii. The Exnress Goal 0f the RPA Was t0 Provide for the Best Interests 0f the Owners/Lessees of the Parcels Comprising the Project ............................................................................................... 6 2. The RPA Does Not Grant the Owner 0f Parcel Thirteen With Consent fights, and Plaintiff is Assigned Onlv the Rights Provided t0 Vallev Title in the RPA ........................................................................................... 7 3. The RPA Provides Expresslv That the Covenants Granted Therein Shall Run With the Land ............................................................................ 8 4. Plaintiff’s Interpretation Would Render an Absurditv and Ineguig... 10 5. The Acts of the Parties Before the Dispute Arose Show that Plaintiff Never Had Consent Rights as Owner 0f Parcel Thirteen ....................... 11 IV. CONCLUSION .................................................................................................................. 1 1 10153.010 vi SCSC Case No.: 18CV328188 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT OOQQU‘I U.) KO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232 ................................................................................................... 1 ASP Properties Group v. Fard, Inc. (2005) 133 Cal.App.4th 1257 .............................................................................................. 10 Barroso v. chen Loan Servicing, LLC (2012) 208 a1.App.4th 1001 ................................................................................................. 10 California National Bank v. Woodbridge Plaza LLC > (2008) 164 Ca1.App.4th 137 ................................................................................................ 10 Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052 .............................................................................................. 10 Doll v. Maravilas (1942) 82 Ca1.App.3d 943 ..................................................................................................... 8 Garcia v. Sterling (1985) 176 Ca1.App.3d 17 ..................................................................................................... 4 George v. Automobile Club ofSouthern Cal. (2011) 201 Ca1.App.4th 1112 ................................................................................................ 1 Grieves v. Superior Ct. (1984) 157 Ca1.App.3d 159 ................................................................................................... 4 Mirpad, LLC v. California Ins. Guar. Ass’n (2005) 132 Cal.App.4th 1058 ................................................................................................ 8 Monterey/Santa Cruz etc. Trades Council v. Cypress Marina Heights LP (201 1) 191 Ca1.App.4th 1500 ................................................................................................ 9 Oceanside Community Assn. v. Oceanside Land C0. (1983) 147 Ca1.App.3d 166 ................................................................................................. 10 Pardee Construction C0. v. Ins. C0. 0fthe West (2000) 77 Ca1.App.4th 1340 .................................................................................................. 5 10153.010 Vii SCSC Case No.: 18CV328188 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT Prof. Collection Consultants v. Hanada (1997) 53 Ca1.App.4th 1016 .................................................................................................. 8 Saltz v. Superior Court (1990) 225 Ca1.App.3d 1525 ................................................................................................. 4 Safeco Ins. C0. v. Robert S. (2001) 26 Ca1.4th 758 ............................................................................................................ 5 SC Manufactured Homes, Inc. v. Lieberz‘ (2008) 162 Ca1.App.4th 68 ................................................................................................ 1, 4 Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Ca1.App.3d 1536 ................................................................................................. 9 Searles Valley Minerals Operations Inc. v. Ralph M. Parsons Service C0. (2011) 191 Ca1.App.4th 1394 ................................................................................................. 8 Selfv. Sharafi (2013) 220 Ca1.App.4th 483 .................................................................................................. 9 Shine v. Williams-Sonoma, Inc. (May 29, 201 8) _ Cal.App.5th _ [2018 DJDAR 5087, 5091] ................................................ 1 Southern Cal. Edison C0. v. Super. Ct. (1995) 37 Ca1.App.4th 839 .................................................................................................. 11 Starlight Ridge South Homeowners Assn. v. Hunter-Bloor (2009) 177 Ca1.App.4th 440 ................................................................................................ 11 Transamerica Ins. C0. v. Sayble (1987) 193 Ca1.App.3d 1562 ............................................................................................... 10 Westrec Marina Management, Inc. v. Arrowood Indemnity C0. (2008) 163 Ca1.App.4th 1387 ................................................................................................ 5 10153.010 viii SCSC Case No.: 18CV328188 DEFENDANTS’ NOTICE OF MOTION END MOTION TO STRIKE PORTIONS OF COMPLAINT oouoxmg \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 w California Code of Civil Procedure § 435(b) ................................................................................... 4 California Code of Civil Procedure § 436(a) ................................................................................. 1, 4 Code 0f Civil Procedure § 437(a) ...................................................................................................... 4 Civil Code § 1460 .............................................................................................................................. 9 Civil Code § 1636 .............................................................................................................................. 5 Civil Code § 1638 .............................................................................................................................. 5 Civil Code § 1639 .............................................................................................................................. 5 Civil Code § 1643 ............................................................................................................................ 10 Civil Code sections 1462 .................................................................................................................. 9 Civil Code sections 1468 ................................................................................................................... 9 10153010 ix SCSC Case No.: 18CV328188 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT #WN flaw 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This is an action related to a Reciprocal Parking Agreement (the “RPA”) executed by and between the owners/lessees 0f parcels comprising the San Antonio Shopping Center in Mountain View (the “Center”) in 1962. In the RPA, five parties were granted consent rights related to the Center’s development (the “Consent Rights”). The RPA stated that it would “run with the land.” Plaintiff now brings this action claiming it has Consent Rights although Plaintiff only has the rights ascribed in the RPA to the owner 0f “Parcel Thirteen.” Under the RPA, however, the owner of Parcel Thirteen was specifically not granted Consent Rights. As the RPA is an exhibit to the Complaint, it controls over Plaintiffs allegations. SC Manufactured Homes, Inc. v. Liebert (2008) 162 Ca1.App.4th 68, 83. Moreover, if the RPA is not reasonably susceptible to Plaintiff’s interpretation, the Court may disregard that interpretation. Shine v. Williams-Sonoma, Inc. (May 29, 201 8) _ Ca1.App.5th _ [201 8 DJDAR 5087, 5091] (citing Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Ca1.App.3d 232, 239; George v. Automobile Club ofSouthem Cal. (201 1) 201 Cal.App.4th 1112, 1128-29). The Court is thus not limited to Plaintiff’s allegations that defy the express language of the RPA. Notwithstanding the unambiguous language 0f the RPA, the Complaint is rife with false and improper allegations that contradict the RPA, relating t0 Plaintiff’ s improper claim t0 Consent Rights. Matters of which this court may take judicial notice as well as the face 0f the pleadings support striking this language under California Code 0f Civil Procedure (“C.C.P.”) § 436(a). II. STATEMENT OF FACTS A. The Original RPA and the Consent Rights On or about July 10, 1962, the RPA was entered into by eleven parties, each having “an interest as owner, ground lessee, trustee, permittee, or otherwise in one or more of the parcels [in the Center].” (Complaint, 1] 24, Exhibit A). Paragraphs 4 through 11 of the RPA expressly set forth each of those parties’ interests in the thirteen parcels comprising the Center. (Complaint, 1] 28, Exhibit A). Relevant to this action, two of the parties were (i) Valley Title Company of Santa Clara 10062.017 1 SCSC Case No.: 18CV328188 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 County (“Valley Title”) and (ii) J. Cyril Johnson Investment Corporation and J. Cyril Johnson (collectively, “Johnson”). The RPA provided that Valley Title was the owner ofParcel Thirteen, and that Johnson had interests in Parcels Eight through Twelve (e.g. not Parcel Thirteen). (Complaint, Exhibit A). Plaintiff, a limited partnership, was not a party t0 the RPA. The RPA provides that the parties’ agreement was related to their property interests. Indeed, Paragraph 2 of the RPA states, “The parties hereto agree, with respect t0 their various interests in said parcels of land, that the entire area shall be developed and used as a unified shopping area.” (Complaint, Exhibit A). Further, the RPA specifically states at Paragraph 12 that: “Except as so limited each agreement, grant and covenant hereinM be regarded as a covenant running with the land and for the benefit 0f all of the parcels described in Exhibit A, and as a burden upon the respective parcels and interests therein of the parties obligated by such covenants, and shall be binding upon and inure t0 the benefit of the parties hereto and their lessees, sublessees, tenants and subtenants, and their heirs, successors and assigns of the parties hereto and of the successors and assigns of the respective lessees, subleases, tenants and subtenants.” (Emphasis added). At issue in this case are the Consent Rights granted in the RPA. In particular, Paragraphs 13, 14, 16, 17, and 19 of the RPA provide that certain actions related to the parcels (e.g., limiting relocation 0f parking areas, using parcels for other purposes, and charging for parking, etc.) may not be taken without the prior written consent and approval of “NORTHCUTT, RICHNOR, SAN ANTONIO, JOHNSON, and RHODES.” (Complaint, Exhibit A). As such, the Consent Rights were granted to the defined five of the eleven signatories which inure to the benefit of their successors. Further, Paragraph 20 of the RPA provides that no parcel may be used as a supermarket Without the prior written approval of “SAN ANTONIO” alone. (Complaint, Exhibit A). Accordingly, the RPA is specific and clear that the remaining parties, including Valley Title, were never granted Consent Rights. 10062.017 2 SCSC Case No.: 18CV328188 DEFENDANTS’ NOTICE OF MOTION END MOTION TO STRIKE PORTIONS OF COMPLAINT A Nam 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Plaintiff’s Current Interest in Parcel Thirteen Plaintiff alleges that it is currently the owner of “Parcel Thirteen” (or the “Property”) located at 2560 El Camino Real in Mountain View, which is part of the Center only. (Complaint, 1W 1-2, 4). Plaintiff does not allege that it has any interest in Parcels Eight through Twelve. Although Plaintiff itself alleges that its only interest in the Center is through its current ownership of Parcel Thirteen, Plaintiff nonetheless alleges without basis that it has Consent Rights “[b]y Virtue of being a successor-in-interest 0f Johnson.” (Complaint, 1] 40). However, Johnson’s Consent Rights were granted under the RPA in its capacity as having interests in Parcels Eight through Twelve - in which Plaintiff fails to allege it has any interest whatsoever. Plaintiff further alleges that Parcel Thirteen is currently leased to Brinker Restaurant Corporation (“Tenant”), which operates a Chili’s Grill & Bar on Parcel Thirteen, pursuant to a written Lease Agreement dated November 13, 1985 (the “Chili’s Lease”). (Complaint, 11 33). Plaintiff alleges that “[a] copy of the RPA is incorporated into the Chili’s Lease” and that the RPA is attached to the Chili’s Lease. (Complaint, 1] 34). C. The Amendments t0 the RPA Defendants MGP IX REIT, LLC, MACHADO - SAN ANTONIO PARTNERS, LLC, SAN ANTONIO CENTER, LLC, and MGP IX PROPERTIES, LLC, entered into a First Amendment to Reciprocal Parking Agreement dated September 30, 2011 (the “First Amendment”) Which was recorded on October 27, 201 1. (Complaint, 1] 36, Exhibit B). Defendants MGP IX SAC II PROPERTIES, LLC, SAN ANTONIO CENTER H, LLC, and FR SAN ANTONIO CENTER, LLC entered into a Second Amendment to Reciprocal Parking Agreement dated March 2, 201 5 (the “Second Amendment”) which was recorded on June 15, 201 5. (Complaint, 1] 36, Exhibit C). Defendants MGP IX SAC II PROPERTIES, LLC and FR SAN ANTONIO CENTER, LLC entered into a Third Amendment to Reciprocal Parking Agreement dated June 1, 2016 (the “Third Amendment” and collectively with the First Amendment and the Second Amendment, the “Amendments”) Which was recorded 0n June 1, 2016. (Complaint, fl 36, Exhibit D). 10062.01? 3 SCSC Case No.: 18CV328188 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff alleges that the First Amendment “inappropriately and illegally cut off and den[ied] Johnson FLP’s Consent Rights as successor-in-interest to Johnson.” (Complaint, 11 41). Plaintiff then claims, broadly, that “[t]he concept of Approval Parties is subsequently carried through to the Second Amendment and the Third Amendment.” (Complaint, fl 42). Plaintiff further alleges that the Amendments damaged Plaintiff because they “constitute a cloud on plaintiffs’ legal title to the Property.” (Complaint, 11 69). Finally, Plaintiff alleges a broad laundry list 0f “representative” “actual and/or potential damages.” (Complaint, 1] 70). III. LEGAL ARGUMENT A. Standard t0 Grant a Motion tO‘Strike California Code of Civil Procedure § 435(b) provides that any party, within the time allowed t0 respond t0 a pleading may serve and file a motion t0 strike the whole or any part thereof. The Court may strike any irrelevant, false or improper matter 0r any part of a pleading not drawn or filed in conformity with the laws of the State, a court rule, or any order of the Court. Code of Civil Procedure § 436. “The grounds for a motion to strike are limited t0 matters appearing on the face 0f the challenged pleading 0r matters which must 0r may be judicially noticed.” Garcia v. Sterling (1985) 176 Ca1.App.3d 17, 20; Code of Civil Procedure § 437(a). While a demurrer attacks entire causes of action, a motion to strike attacks portions 0f causes of action. Grieves v. Superior Ct. (1984) 157 Ca1.App.3d 159, 163-164. Thus, a “motion t0 strike is [an] appropriate vehicle to attack allegations requesting improper relief.” Saltz v. Superior Court (1990) 225 Ca1.App.3d 1525, 1533, fn. 9. B. Plaintiff’s Allegations Which Are False On The Face 0f The Complaint And Attached Exhibits Should Be Stricken First, several of Plaintiff s allegations are plainly false and improperly asserted upon review of the face 0f the Complaint and the RPA which is attached as an exhibit and therefore controls. SC Manufactured Homes, Inc. v. Liebert (2008) 162 Ca1.App.4th 68, 83. As stated above, a court may strike false or “untrue” matters containing in a pleading pursuant t0 section 437(a) 0f the Code 0f Civil Procedure. Garcia, 176 Ca1.App.3d at 21. A11 0f the language that Federal Defendants seek to strike relate t0 Plaintiff s contention 10062.017 4 SCSC Case No.: 18CV328188 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that it is granted Consent Rights in the RPA, that Federal Defendants (among the other defendants) acted improperly by amending the RPA without seeking Plaintiff’s written consent, and that Federal Defendants’ conduct constitutes various causes of action either in contract or in tort. These allegations are improper because they defy the RPA and request improper relief that may be stricken, t0 the extent Plaintiff is requesting rights that it does not have under the RPA. C. Plaintiff’s Allegation That it Has Consent Rights is False Simply put, Plaintijfdoes not have Consent Rights under the RPA. Plaintiff’s allegations t0 the contrary defy the express language of the RPA, as well as basic principles of contract interpretation. The only reasonable interpretation 0f the RPA is that only those who succeeded t0 the interests 0fthe original signatories’ interests in the parcels that were granted Consent Rights currently hold Consent Rights. This interpretation is supported by {he express language 0f the RPA which specifically demonstrates: (1) the intent 0f the parties that the RPA will assist the unified development of the Center; (2) the connection between the parties’ interests in said parcels with the rights and obligations in the RPA; (3) the omission of Valley Title from the group with Consent Rights; and (4) the intent that the rights and obligations will run with the land. 6. The Relevant Provisions 0f the RPA Identify the Parties’ Intent “The goal 0f contractual interpretation is t0 determine and give effect t0 theM intention of the parties.” Safeco Ins. C0. v. Robert S. (2001) 26 Ca1.4th 758, 763; Civil Code § 1636. This intent should be inferred solely from the express language of the contract. Pardee Construction C0. v. Ins. C0. 0fthe West (2000) 77 Ca1.App.4th 1340, 1352; Civil Code § 1639. “The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.” Civil Code § 1638. Further, a contract should be interpreted so as to make it “lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without Violating the intention of the parties.” Civil Code § 1643. See also Westrec Marina Management, Inc. v. Arrowoodlndemm'ty C0. (2008) 163 Ca1.App.4th 1387, 1392. Here, the parties’ mutual and obj ective intent can be determined from the language of the RPA itself. As more fiJlly set forth below, the intent was that only the owners and lessees of the 10062.017 5 SCSC Case No.: 18CV328188 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 parcels comprising the Center; and their successors-in-interest as t0 those parcels, would have continuing rights and obligations in order t0 support the Center’s development. This is consistent with the language of the RPA which expressly states that it is meant to run with the land. The interpretation offered by Plaintiff, that the rights and obligations (including the Consent Rights) in the RPA were granted t0 0r bind the parties t0 the RPA personally, would render an absurdity, wherein the former owners (and their heirs) would continue t0 have rights and obligations, and the ability to obstruct development, as t0 property in which they have no ownership interest. i. The RPA Defined Each Party and Related Each Party Specifically T0 Their Interest in Certain Parcels Comprising the Center First, it is important to note that the RPA begins by defining the specific parties to the RPA. For example, “JOHNSON” is defined as J. Cyril Johnson Investment Corporation and J. Cyril Johnson collectively and thus all further references to “JOHNSON” are so limited. The RPA then states that “each 0f the above-named parties has an interest as owner, ground lessee, trustee, permittee, or otherwise in one or more of the parcels of land hereinafter described in Exhibit A hereto and set out in the plot plan 0f parcels the property affected herein. . .” By doing so, the RPA is specifically noting that the parties t0 the RPA are only parties because they have relevant property interests in the Center. This is consistent with the parties’ intent. ii. The Express Goal of the RPA Was t0 Provide for the Best Interests of the Owners/Lessees of the Parcels Comprising the Proiect As stated above, the RPA provides that “it is the desire of all of the parties hereto and to their mutual best interests and to the best interests of said parcels of land both individually and as a Whole, that the entire area be developed as a unified shopping area. . .” Thus, the goal 0f the RPA was to protect the “mutual best interests” of the parties With ownership interests in those parcels. Similarly, Paragraph 2 of the RPA provides, “The parties hereto agree, with respect to their various interests in said parcels of land, that the entire area shall be developed and used as a unified shopping area.” (Emphasis added). The plain meaning of this Paragraph 2 is that the parties entered into the RPA only as a result 0f their interests in the parcels and in development of 10062.017 6 SCSC Case No.: 18CV328188 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Center. This is further evidence that the parties’ intent is to bind the owners and/or lessees of the parcels, and their successors-in-interest as the subsequent owners and/or lessees 0f the parcels. Paragraph 12, located just before the paragraphs granting the Consent Rights, states: “Except as so limited each agreement, grant and covenant herein s_hal_l be regarded as a covenant running with the land and for the benefit 0f all 0f the parcels described in Exhibit A, and as a burden upon the respective parcels and interests therein of the parties obligated by such covenants, and shall be binding upon and inure t0 the benefit 0f the parties hereto and their lessees, sublessees, tenants and subtenants, and their heirs, successors and assigns of the parties hereto and of the successors and assigns of the respective lessees, subleases, tenants and subtenants.” (Emphasis added). In other words, the signatories to the RPA were not identified, defined, and included in the RPA arbitrarily, but in their own best interests as owners and/or lessees of the parcels comprising the RPA, and that their goal was t0 mutually agree to support development of the Center. Further, the intent of the parties was expressly agreed to run with the land, and t0 affect future successors and/or assignees insofar as they succeeded t0 the original signatories’ interests in the parcels. The parties thus always intended that only those With interests in the parcels comprising the Center would be able to benefit from the RPA. 7. The RPA Does Not Grant the Owner 0f Parcel Thirteen With Consent Rights, and Plaintiff is Assigned Only the Rights Provided t0 Valley Title in the RPA In light of the above, Plaintiff did not obtain Consent Rights when it came to own Parcel Thirteen. Further, Johnson, who previously held Consent Rights related t0 its interest in Parcels Eight through Twelve, lost such Consent Rights when it transferred its interests in those parcels. Specifically, Paragraphs 4 through 11 of the RPA identify the property interests 0f each party t0 the RPA and the easements and other rights granted by said parties with respect to their interests in those parcels. Johnson, not Plaintiff, is identified as Assignee Lessee of Parcels Nine and Ten (Paragraph 9), owner and holder of use permit for Parcel Eight (Paragraph 9), Assignee Lessee for Parcel Eleven (Paragraph 10), and owner 0f Parcel Twelve (Paragraph 10). However, Plaintiff fails to allege that either Johnson 0r Plaintiff currently has any interest in Parcels Eight 10062.017 7 SCSC Case No.: 18CV328188 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT .5 Nam 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 through Twelve. Moreover, Plaintiff fails t0 allege that it owns, 0r ever owned, any interest in such parcels, and thus as a matter of law, Plaintiff is not entitled t0 any Consent Rights by way of Parcels Eight through Twelve. On the other hand, Valley Title is identified in the RPA as owner in fee of Parcel Thirteen. As alleged, Plaintiff’s only interest in the RPA is as assignee 0f Parcel Thirteen and successor-in- interest to Valley Title. (Complaint, 1] 23). Accordingly, Plaintiff steps into the shoes of Valley Title and therefore has only the same rights and obligations of Valley Title under the RPA. “An assignee stands in the shoes of the assignor, acquiring all of its rights and liabilities.” Prof. Collection Consultants v. Hanada (1997) 53 Ca1.App.4th 1016, 1018-1019; Searles Valley Minerals Operations Inc. v. Ralph M. Parsons Service C0. (201 1) 191 Ca1.App.4th 1394, 1405. Further, “successors in interest are bound by the construction reasonably given contractual terms by the original parties.” Doll v. Maravilas (1942) 82 Ca1.App.3d 943, 949. Paragraphs 13, 14, 16, 17, and 19 0f the RPA do not provide any Consent Rights t0 Valley Title, the owner of Parcel Thirteen, among others. By only granting Consent Rights t0 five of eleven parties to the RPA, these Paragraphs show that the parties intended t0 distinguish between the parties with Consent Rights and those without. See, e.g., Mirpad, LLC v. California Ins. Guar. ASS ’n (2005) 132 Ca1.App.4th 1058, 1071-1075 (stating that a distinction between the terms “person and organization” and “person” in an insurance policy was significant and demonstrated the terms were not intended to be synonymous). Paragraph 20 of the RPA is another example of how the parties deliberately granted Consent Rights to some, but not all, parties. In light of the above, the plain reading 0f the RPA, along With the fact that Plaintiff only holds the rights granted to Valley Title as its successor-in-interest with respect to Parcel Thirteen, shows that Plaintiff s claim to Consent Rights is meritless. 8. The RPA Provides Expressly That the Covenants Granted Therein Shall Run With the Land Finally, the RPA expressly notes, at Paragraph 12, that the agreements, grants, and covenants contained therein would “run[] with the land” and bind and inure t0 the benefit of the parties and their successors with interests in the various parcels. The RPA is accordingly binding 10062.017 8 SCSC Case No.: 18CV328188 DEFENDANTS’ NOTICE OF MOTION KND MOTION TO STRIKE PORTIONS OF COMPLAINT 1o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not on the specific parties’ heirs 0r successors, but only t0 their successors-in-interest as t0 the parcels comprising the Center, essentially as a statutory covenant running with the land. “Certain covenants, contained in grants 0f estates in real property, are appurtenant to such estates, and pass with them, so as t0 bind the assigns 0f the covenantor and to vest in the assigns 0f the covenantee, in the same manner as if they had personally entered into them. Such covenants are said to run with the land.” Civil Code § 1460; see Scaringe v. J. C. C. Enterprises, Inc. (1988) 205 Ca1.App.3d 1536, 1543. Covenants running through the land may be established under either Civil Code sections 1462 or 1468. Civil Code section 1462 provides that “Every covenant contained in a grant of an estate in real property, which is made for the direct benefit of the property, or some part of it then in existence, runs with the land.” Here, the covenants in the RPA were clearly (and expressly) made for the direct benefit of the individual parcels, as well as for the Center as a Whole. Civil Code section 1468 provides that a covenant runs with the land When it burdens the land where (a) the land affected by the covenants is particularly described in the instrument, (b) the instrument expressly binds successors to the original interest in the land, (c) the acts described in the instrument are related to the use, repair, maintenance, improvement, 0r payment of taxes on the land, and (d) the instrument is recorded in the appropriate county. See Monterey/Santa Cruz etc. Trades Council v. Cypress Marina Heights LP (201 1) 191 Cal.App.4th 1500, 15 1 8. Here, the instrument burdens Parcel Thirteen because it includes an easement granted by the owner of Parcel Thirteen. Further, all 0f the elements are met to create a covenant running With the land, as the RPA contains the legal descriptions as well as maps for each parcel including Parcel Thirteen, the RPA states it is binding on successors and runs with the land, the RPA relates to the use 0f the properties, and the RPA was recorded in the County Recorder’s Office. As a result, the RPA constitutes a statutory covenant running with the land, and Plaintiff, as the successor-in-interest to Valley Title, is bound as Valley Title was bound when the RPA was originally executed and recorded. See Selfv. Sharafi (2013) 220 Ca1.App.4th 483, 493-494. 10062.017 9 SCSC Case No.: 18CV328188 DEFENDANTS’ NOTICE OF MOTION END MOTION TO STRIKE PORTIONS OF COMPLAINT GONG \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Furthermore, and perhaps more importantly, the covenants in the RPA are notpersonal. See, e.g. Oceanside Community Assn. v. Oceanside Land C0. (1983) 147 Cal.App.3d 166, 175: “A personal covenant is one that by its nature is a mere personal undertaking, and not intended to have any binding effect beyond the immediate parties to the instrument. [Citation omitted] (2b) Contrary to Pine Tree's contention, the evidence shows an intention to bind successors bv the express terms 0f the CC&Rs stating the covenant was t0 run with the land and bind successors, by the length of the restriction 0n the land (99 years) and by the testimony establishing the original covenanting parties understood the land was t0 be burdened, not that Developer was promising t0 maintain a golf course for 99 years.” (Emphasis added). Similarly, here, the facts show that the parties intended t0 bind successors-in-interest as to the parcels to the RPA and thus that it was not personal to the original signatories themselves. Similarly t0 Oceanside Community Assn, here, the express language in Paragraph 12 of the RPA stated specifically that it was intended to run with the land and bind successors, etc., and the RPA included an express provision that the terms would continue through 2057 (i.e., for 95 years). 9. Plaintiff’s Interpretation Would Render an Absurdity and Inequity The rules of contract interpretation support Federal Defendants’ interpretation 0f the RPA. “Interpretation 0f a contract ‘must be fair and reasonable, not leading to absurd conclusions.”’ ASP Properties Group v. Fard, Inc. (2005) 133 Ca1.App.4th 1257, 1269 (quoting Transamerica Ins. C0. v. Sayble (1987) 193 Ca1.App.3d 1562, 1566)); California National Bank v. Woodbridge Plaza LLC (2008) 164 Ca1.App.4th 137, 143 (“Construction cannot lead to unfair or absurd results but must be reasonable and fair.”). See also California Civil Code § 1643. Similarly, “courts ‘must avoid an interpretation Which will make a contract extraordinary, harsh, unjust, 0r inequitable.’” Chavez v. Indymac Mortgage Services (2013) 219 Ca1.App.4th 1052, 1058 (quoting Barroso v. chen Loan Servicing, LLC (2012) 208 a1.App.4th 1001, 1013). Here, Plaintiff’ s interpretation of the RPA renders an absurdity: it would allow any of the original parties to the RPA, including their successors unrelated t0 the ownership/tenancy/use of the parcels comprising the Center (particularly relevant given that many, if not all, 0f the original 1962 signatories are presumably deceased), to obstruct development in a Center in which they 10062.017 10 SCSC Case No.: 18CV328188 DEFEND ANTS’ NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT GONG KO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 have n0 property 0r ownership interest. It would allow a person with an interest decades-removed t0 interfere with others’ property rights. Particularly in light of the numerous express references in the RPA t0 the intent to provide for unified development 0f the Center and protection of property interests, such a result would be absurd, inequitable, and disregard the clear goal of the RPA. 10. The Acts of the Parties Before the Dispute Arose Show that Plaintiff Never Had Consent Rights as Owner of Parcel Thirteen A court may also review contracting parties’ acts and conduct before the dispute arose t0 determine the parties’ intent. Starlight Ridge South Homeowners Assn. v. Hunter-Bloor (2009) 177 Ca1.App.4th 440, 448; Southern Cal. Edison C0. v. Super. Ct. (1995) 37 Ca1.App.4th 839, 851. Here, the parties’ conduct before this dispute arose shows that the intent was never t0 provide the owners of Parcel Thirteen with Consent Rights. Specifically, Plaintiff alleges that it took title t0 Parcel Thirteen in or around 1975. (Complaint, 11 23). However, although Plaintiff alleges that it is the successor t0 Johnson’s interests and therefore allegedly knew of the RPA, Plaintiff is not alleged to have asserted its rights under the RPA. Indeed, Plaintiff admittedly allowed significant resources to be expended on alleged redevelopment before filing this Complaint in 201 8. (Complaint, 1H] 48-62). On the other hand, the remaining parties’ express understanding 0f the RPA, as shown in the Amendments thereto, reflect the proper interpretation that the owner of Parcel Thirteen (whomever that may be) has no Consent Rights. IV. CONCLUSION For the foregoing reasons, Federal Defendants respectfully request that the portions 0f Plaintiff’s Complaint described herein (Complaint, 1W 35 (line 22), 4O (lines 13-14), 42 (lines 24-27), 43 (line 2), 44, 45 (line 9), 46 (line 10), 47 (lines 16-18), 58 (lines 7-10), 66, 70 (lines 5-6), 95, 98, 99, 103, 109, 110) be stricken. /// /// /// /// /// 10062.017 11 SCSC Case No.: 18CV328188 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT 4; \lONk/‘I 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: July 13, 2018 GOODKIN & LYNCH, LLP xybL/p/M/ Daniel L.\660dkin, Esq. Allison J. Law, Esq. Attorneys for Defendants SAN ANTONIO CENTER II, LLC; FEDERAL REALTY PARTNERS, INC; FEDERAL REALTY PARTNERS L.P.; and FR SAN ANTONIO CENTER, LLC. 10062.017 12 SCSC Case No.: 18CV328188 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT Declaration 0f Daniel L. Goodkin OOQQU‘I-P \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF DANIEL L. GOODKIN I, Daniel L. Goodkin, declare and state: 1. I am an attorney at law, duly licensed and admitted to practice before all courts of the State 0f California. I am a partner in the law offices 0f Goodkin & Lynch, LLP, counsel for Defendants SAN ANTONIO CENTER II, LLC, FEDERAL REALTY PARTNERS, INC, > FEDERAL REALTY PARTNERS L.P., and FR SAN ANTONIO CENTER, LLC (collectively, “Federal Defendants”). I have personal knowledge of the facts stated and/or informed and believe in the facts stated in this declaration. If called as a Witness, I could and would testify competently to these facts. I submit this Declaration in support of Federal Defendants’ Motion to Strike the Complaint (the “Complaint”) filed herein by Plaintiff J. CYRIL JOHNSON FAMILY LIMITED PARTNRSHIP (“Plaintiff”). 2. On or about June 8, 2018, my associate Allison Law emailed Plaintiff’s counsel, William Garrett, confirming that Mr. Garrett had granted Federal Defendants an extension 0f time to respond to the Complaint to and including July 2, 201 8. A true and correct copy 0f this email is attached hereto as Exhibit A and is fully incorporated herein by this reference. 3. Thereafter, I prepared a meet and confer letter t0 Mr. Garrett, outlining the many deficiencies we perceived with respect t0 the substance of the Complaint, and each cause of action therein, against Federal Defendants. I caused this letter t0 be emailed and sent Via overnight delivery to Mr. Garrett 0n June 22, 2018. A true and correct copy of this email and letter is attached hereto as Mil B and is fully incorporated herein by this reference. 4. On 0r about June 26, 2018, I spoke with Mr. Garrett by telephone and suggested that we set up a substantive call to meet and confer regarding the Complaint jointly With counsel for certain other Defendants in this action. Mr. Garrett stated that his mother had recently passed away and suggested that he grant a further extension t0 Federal Defendants to and including July 9, 201 8 so that we would have sufficient time to meet and confer. Ms. Law emailed Mr. Garrett to confirm this extension on June 27, 201 8, and he responded that same day, stating that “an extension to & including July 9, 201 8 for the Federal-related defendants to respond to the Complaint is fine. Iwill have to get back t0 you & Dan on a date to meet & confer regarding your 10153-001 1 SCSC Case No.: 18CV328188 DECLARATION 0F DANIEL L. GOODKIN IN SUPPORT 0F MOTION To STRIKE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 planned demurrer & motion to strike.” A true and correct copy 0f this email thread is attached hereto as Exhibit C and is fully incorporated herein by this reference. 5. Thereafter, Amin Al-Sarraf, counsel for defendants Merlone Geier IX, LLC, MGP IX REIT, LLC, MGP IX SAC II, LLC, MGP IX SAC II Properties, LLC, and MGP IX Properties, LLC (collectively, “MGP”), as well as the City of Mountain View (“the City”) also proposed a joint call regarding the anticipated demurrers and motions t0 strike by Federal Defendants, MGP, and the City, With myself and Mr. Garrett. In order to provide sufficient time t0 do so, Mr. A1- Sarraf requested on behalf of Federal Defendants, MGP, and the City, and Mr. Garrett granted, a further extension t0 and including July 13, 201 8. A true and correct copy of Mr. Al-Sarraf’s email confirming this extension is attached hereto as Exhibit D and is fully incorporated herein by this reference. 6. We then agreed to hold a telephonic meet and confer by and between Mr. Garrett, Mr. Al-Sarraf, and myself on July 9, 2018 at 2 pm. During this call, we substantively went over the allegations and the perceived deficiencies with respect t0 each party represented 0n the call. Mr. Garrett agreed t0 file a verification form with respect t0 the First Cause of Action for Quiet Title, but did not agree t0 make any fithher changes to the Complaint. Accordingly, we agreed that it was necessary to file our respective demurrers and motions to strike t0 resolve the dispute between the parties regarding the Viability of the Complaint. I declare under penalty of perjury under the laws 0f the State of California that the foregoing is true and correct. Executed this 13th day of July 201 8 at Los Angeles, California. Daniel L. Goodkin, Esq. 10153-001 2 SCSC Case No.: 18CV328188 DECLARATION 0F DANIEL L. GOODKIN IN SUPPORT 0F MOTION To STRIKE Exhibit A _ Allison Law From: Sharon Yeou Sent: Friday, June 22, 2018 1:13 PM To: bgarrett@hanvan.com Cc: psheridan@glaserweil.com; aalsarraf@glaserweil.com; Allison Law; Daniel Goodkin Subject: Letter dated 6-22-18 Attachments: Letter re Request M&C DATED 6-22-18.pdf Dear Mr. Garrett, Attached please find letter of today’s date. Hard copy to follow via overnight mail. Sharon Yeou, MPH GOODKIN & LYNCH LLP 1800 Century Park East, 10‘“ Floor Los Angeles, CA 90067 (310) 552-3322 (310) 943-1589 fax 7?B Please consider the environment before printing l'his e-mail IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any matters addressed herein. Internet Email Confidentiality: Privileged/Confidential Information may be contained in this message. If you are not the addressee indicated in this message (or responsible for delivery of the message to such person). you may not copy or deliver this message to anyone. In such case, you should destroy this message and kindly notify the sender by reply email. Please advise immediately if you or your employer does not consent to Internet email for messages of this kind. Opinions, conclusions and other information in this Message that do not relate to the official business of my firm shall be understood as neither given nor endorsed by it. GOODKIN & LYNCH LLP 1800 Century Park East, 10th Floor o Los Angeles, California 90067 o Tel: (31 0) 552-3322 a Fax: (310) 943-1589 www.goodkinlynch.com Daniel L. Goodkin, Esq. dgoodkin@goodkinlynch.com File No.: 10153.0]0 . June 22, 2018 VIA OVERNIGHT DELIVERY & EMAIL: William R. Garrett Hanna & Van Atta 525 University Avenue, Suite 600 Palo Alto, CA 94301 bgarrett@1_1anvan.com RE: .1 Cyril Johnson dez'ly Limited Partnership v. Merlone Geier IX, LLC, et al. (SCSC Case No. 18CV328188) / Request to Meet and Confer Dear Mr. Garrett: As you know, our office has been retained t0 represent Defendants San Antonio Center II, LLC, Federal Realty Partners, Inc., Federal Realty Partners L.P., and FR San Antonio Center, LLC (collectively referred to herein as “Federal Realty,” as defined in the Complaint) in the above-referenced matter. Please accept this letter as our invitation t0 meet and confer regarding our anticipated Demurrer to and Motion to Strike the Complaint filed by J. Cyril Johnson Family Limited Partnership (“Plaintiff’). A11 capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Complaint. Specifically, we intend to the demur to the First, Second, Third, Fourth, Fifth, Sixth, and Seventh causes of action, all on the ground that each and every cause of action fails to state facts sufficient to constitute a cause of action. A demurrer may be sustained here in light of the fact that Plaintiff” s allegations are all based on the erroneous premise that the owner of Parcel Thifieen has Consent Rights under the RPA, and/or that the Consent Rights initially granted to Johnson were intended to be granted to Johnson personally, rather than intended to run with the land. In fact, however, the express language 0fthe RPA, as well as basic law of contract interpretation, mandates the conclusion that Plaintiff, as the current owner of Parcel Thifleen only, has no Consent Rights. Shine v. Williams-Sonoma, Inc. (May 29, 201 8) _ Ca1.App.5th _'_ [201 8 DJDAR 5087, 5091]. As a result, each cause of action fails. G&L William R. Garrett June 22, 201 8 Page 2 Moreover, and relatedly, we intend to move t0 strike the Complaint’s false, irrelevant, and contradictory allegations that defy the plain language of the RPA, which is attached as an exhibit and therefore controls over Plaintiff’s allegations. SC Mamzfactured Homes, Inc. v. ~ Lieberx (2008) 162 Ca1.App.4th 68, 83. The following sets fofih the reasons why each cause 0f action against Federal Realty fails to state a claim as a matter 0f law, as well as the basis for striking the language falsely and improperly asserting that Plaintiff has Consent Rights under the RPA. 1. Plaintiff, as the Owner of Parcel Thirteen Only, Has N0 Consent Rights. Preliminarily, as to the “big picture,” Federal Realty’s anticipated Demurrer, as well as the Motion to Strike, is generally based on the fact that the RPA provides no Consent Rights to the owner 0f Parcel Thirteen (i.e., Valley Title Company (“Valley Title”) at the time the RPA was executed, and Plaintiff, at present). Plaintiff’s allegations contradict the express language of the RPA, as well as basic principles 0f contract interpretation, and therefore are subject t0 demurrer and/or may be stricken. In particular, the specific language of the RPA is not reasonably susceptible to the meaning ascribed by Plaintiff in the Complaint and thus the Complaint is subject to demurrer. George v. Automobile Club ofSozIfhern California (201 1) 201 Ca1.App.4th 1112, 1128-1 129. Federal Realty’s interpretation of the RPA is supported by, among others: (1) the intent of the pafiies as clearly demonstrated in the express language of the RPA itself; (2) the express language of the RPA which linked the signatories’ interests in the parcels comprising the Center with the rights and obligations in the RPA; (3) the express language which omitted Valley Title from the parties with Consent Rights under the RPA; and (4) the express language which states that the rights and obligations in the RPA is intended to run with the land and therefore is not personal to the specific signatories to the RPA in 1962. a. The Relevant Provisions of the RPA Identify the Parties’ Intent “The goal of contractual interpretation is to determine and give effect to the mutual intention 0f the parties.” Safeco Ins. C0. v. Robert S. (2001) 26 CaI.4th 758, 763; see also Civil Code § 1636. The Coufi infers the parties’ mutual objective intent solely from the express language of the contract, where possible. Pardee Construction Co‘ _v. Insurance C0. 0fthe West (2000) 77 Ca1.App.4th 1340, 1352; Civil Code § 1639. Accordingly, it is a principle 0f contract law that “[t]he language of a contract is to govern its intelpretation, if the language is clear and explicit, and does not involve an absurdity.” > Civil Code § 1638. Further, a contract should be intelpreted so as to make it “lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the panics.” Civil Code § 1643. See also Westrec Marina Management, Inc. v. Arrowoodlndemnily C0. (2008) 163 Ca1.App.4th 1387, 1392. G&L William R. Gau‘ett June 22, 2018 Page 3 Here, the parties’ mutual and objective intent, in entering into the RPA, is patently clear from the express language of the RPA itself alone. As more fully set forth below, the intent was that the owners and/or lessees of the parcels comprising the Center would make certain covenants and obligations, and receive certain rights, in order t0 support the unified development 0f the Center. As such, the reasonable interpretation that would give effect to this intent is that the RPA is binding on the successors-in-interest t0 the owners and/or lessees 0fthe parcels comprising the Center only. This is consistent with the language of the RPA Which expressly states that it 1's meant to run with the land. The interpretation offered by Plaintiff, that the rights and obligations (including the Consent Rights) in the RPA were granted to or bind the parties to the RPA personally, would render an absurd result wherein parties (and their heirs, etc.) would have rights and obligations as t0 property in which they have no interest and would not support the intent to develop the Center. i. The RPA Defined Each Party and Related Each Party Specifically to Their Interest in Cefiain Parcels Comprising the Proiect. To begin the analysis, it is impofiant to note that the RPA begins by identifying and defining the specific parties to the RPA. For example, “JOHNSON” is defined as J. Cyril Johnson Investment Corporation and J. Cyril Johnson collectively and thus all further references in the RPA to “JOHNSON” are so limited. The RPA then states that “each 0fthe above-named parties has an interest as owner, ground lessee, trustee, permittee, or otherwise in one 0r more of the parcels of land hereinafter described in Exhibit A hereto and set out in the plot plan of parcels the property affected herein. . .” Therefore, the RPA specifically identifies that the parties to the RPA are only parties because they have relevant property interests in the Center. This is consistent with the parties’ intent in entering into the RPA, as shown below. ii. The RPA Expresslv Identified its Goal t0 Provide for the Mutual Best Interests of the Parties as Owners/Lessees of the Parcels Comprising the Project. The RPA then goes 0n to state expressly that “Whereas said parcels of land are contiguous, and it is the desire of all 0fthe pafiies hereto and to their mutual best interests and to the best interests of said parcels of land both individually and as a whole, that the entire area be developed as a unified shopping area. . .” This provision specifically states that the parties’ intent in entering into the RPA is to develop the entire Center (i.e., the contiguous land parcels) in the palties’ “mutual best interests,” i.e., as those with interests in the parcels. Similarly, Paragraph 2 of the RPA then states, “The parties hereto agree, with respect to their various interests in said parcels of land, that the entire area shall be developed and used as a unified shopping area.” (Emphasis added). The plain meaning ofthis Paragraph 2, obviously, is that the parties entered into the RPA only as a result of their interests in the parcels and in the development of the Center. This is further evidence that the parties’ intent is to bind G&L William R. Garrett June 22, 201 8 Page 4 the owners and/or lessees of the parcels, and their successors-in-interest as the subsequent owners and/or lessees of the parcels. The intent of the panics to be binding on those with interests in the parcels is again emphasized at the end of Paragraph 3 which states, “The parties hereto do agree, however, to use their best efforts to have all parties having an interest in anv portion of the said parcels 0fm join in executing a Reciprocal Parking Agreement which will subordinate their respective interests to said Reciprocal Parking Agreement.” (Emphasis added). This language shows that the parties intended to attempt to have all other palfies with interests in the parcels t0 join in agreement with respect to the development of the Center. Finally, Paragraph 12 of the RPA, which is, significantly, located just before the paragraphs 0fthe RPA giving rise t0 the Consent Rights, states expressly: “It 1's understood and agreed that the agreements, grants and covenants herein contained shall be binding upon the heirs, successors and assigns of the parties hereto and shall continue in full force and effect from date hereof until April 1, 2057, and shall then expire. Except as so limited each agreement, grant and covenant herein shall be regarded as a covenant running with the land and for the benefit 0f all 0f the parcels descn'bed in Exhibit A, and as a burden upon the respective parcels and interests therein of the parties obligated by such covenants, and shall be binding upon and inure t0 the benefit 0f the parties hereto and their lessees, sublessees, tenants and subtenants, and their heirs, successors and assigns of the palties hereto and of the successors and assigns 0f the respective lessees, subleases, tenants and subtenants.” (Emphasis added). In other words, the language quoted above shows that the panics Who were signatories to the RPA were not identified and selected to join in the RPA arbitrarily, but that they joined in the RPA in their own best interests as owners and/or lessees 0fthe parcels comprising the RPA, and that the goal was to reach a mutual agreement to suppon development of the Center. Further, the intent of the parties was expressly agreed to run With the land, and to affect future successors and/or assignees insofar as they succeeded to the original signatories’ interests in the parcels. Conversely, it could be determined as a matter of law that there was no intent to continue to provide personal rights, including Consent Rights, to persons or entities with no interest in the parcels, given the express language used in the RPA. Indeed, such an interpretation would lead to an absurdity where a party could obstruct and interfere with development of the Center despite having no interest in the land. See, e.g., Civil Code § 1638. /// /// /// G&L William R. Garrett June 22, 201 8 Page 5 b. The Owner of Parcel Thirteen Was Not Provided with Consent Rights in the RPA, and Plaintiff is Assigned Only the Rights Provided t0 the OWner 0f Parcel Thirteen in the 1962 RPA. In light 0f the above, Plaintiff did not obtain any consent rights When it came to own Parcel Thirteen and Johnson, the previous party with Consent Rights related t0 its interest in Parcels Eight through Twelve, lost such Consent Rights when it transferred its interests in those parcels. Specifically, Paragraphs 4 through 11 0f the RPA identify the ownership and/or lease interest of each party t0 the RPA and the easements and other rights granted by said parties with respect to their interest in the parcels. JOHNSON (defined in the Complaint as “Johnson”), not Plaintiff, is identified as Assignee Lessee of Parcels Nine and Ten (Paragraph 9), owner and holder of use permit for Parcel Eight (Paragraph 9),'Assignee of Lessee for Parcel Eleven (Paragraph 10), and owner in fee 0f Parcel Twelve (Paragraph 10). Notwithstanding, it can be shown by taking judicial notice of the cun'ent ownership that presently, neither JOHNSON nor Plaintiff has any interest in Parcels Eight, Nine, Ten, Eleven, or Twelve. Moreover, Plaintiff is not alleged to have owned in the past and/or to currently own any interest in such parcels and thus as a matter of law Plaintiff is not entitled t0 any consent rights by way of Parcels Eight through Twelve. As to Parcel Thirteen, only Valley Title is identified in the RPA as owner in fee of Parcel Thifieen. As alleged, Plaintiffs only alleged interest in the RPA is as assignee ofParcel Thirteen and successor-in-interest to Valley Title. (Complaint, 1] 23). Accordingly, Plaintiff steps into the shoes 0f Valley Title and therefore has only the same rights and obligations of Valley Title under the RPA. “An assignee stands in the shoes 0fthe assignor, acquiring all of its rights and liabilities.” (Emphasis added) Professional Collection Consultants v. Hanada (1997) 53 Ca1.App.4th 1016, 1018-1019; Johnson v. County ofFresno (2003) 111 Ca1.App.4th 1087, 1096; Searles Valley Minerals Operations Inc. V. Ralph M. Parsons Service Co. (2011) 191 Ca1.App.4th 1394, 1405. Further, “successors in interest are bound by the construction reasonably given contractual terms by the original parties.” Doll v. Maravilas (1942) 82 Ca1.App.3d 943, 949. Further, as shown in the clear and express language of the RPA, the Consent Rights in Paragraphs 13, l4, 16, 17, and 19 do not provide any Consent Rights to Valley Title as the owner 0f Parcel Thifieen. The express language 0fthe RPA governs and cannot be read to grant Valley Title with those rights. See, e.g., Mirpad, LLC v. California Ins. Guar. Ass ’n (2005) 132 Ca1.App.4th 1058, 1071-1075 (stating that the distinction between the terms “person and organization” and “person” in an insurance policy was significant and demonstrated the two terms were not intended to be synonymous). Similarly, here, the express omission of Valley Title from the Paragraphs granting Consent Rights is significant because it shows that the intent of the patties was clearly to not provide the owner 0f Parcel Thifieen With said rights. G&L William R. Garrett June 22, 20 1 8 Page 6 Furthelmore, Paragraph 20 of the RPA provides another example of how the parties to the RPA specifically elected to grant cefiain rights to some, but not all, parcel-owners. Paragraph 20 provides, in part, that “without prior consent and approval 0f SAN ANTONIO no portion of said parcels [Parcels Eight through Thirteen] shall be used 01' permitted t0 be used for the conduct and operation of what is commonly known as a supermarket. . .” This is further evidence 0f the paflies’ intent to omit Valley Title (and accordingly, Plaintiff) from having the Consent Rights granted to other parties in Paragraphs 13, 14, 16, 17, and 19. In light of the above, the plain reading of the RPA, along with the fact that Plaintiff only holds the rights granted to Valley Title as its successor-in-interest with respect to Parcel Thirteen, shows that Plaintiff‘s claim to Consent Rights is meritless. c. The RPA Provides Expressly That the Covenants Granted Therein Shall Run With the Land. Finally, the agreements, grants, and covenants contained therein the RPA were expressly noted, at Paragraph 12, to “run[] with the land” and binding and inuring to the benefit ofparties and their successors with interests in the various parcels. The provisions 0fthe RPA are accordingly binding not on the specific parties’ heirs 01' successors, but only to their successors- in-interest as to the parcels comprising the Center, as a statutory covenant running with the land. “Certain covenants, contained in grants of estates in real property, are appurtenant to such estates, and pass with them, so as to bind the assigns of the covenantor and to vest in the assigns of the covenantee, in the same manner as if they had personally entered into them. Such covenants are said to run with _the land.” Civil Code § 1460. Covenants run with the land when they are appurtenant to the estate granted and pass with it, “so as to bind the assigns of the covenantor and to vest in the assigns of the covenantee in the same manner as if they had personally entered into them.” Scaringe v. JC. C. Enterprises, Inc. (1988) 205 Ca1.App.3d 153 6, 1543. Covenants running through the land may be established pursuant t0 either Civil Code section 1462 01‘ Civil Code section 1468. Civil Code section 1462 provides that “Every covenant contained in a grant of an estate in real propefly, which is made for the direct benefit of the property, or some part of it then in existence, runs with the land.” Here, the covenants in the RPA are clearly (and expressly) made for the direct benefit of the individual parcels, including Parcel Thirteen, as well as for the Center as a whole. Civil Code section 1468 further provides that a covenant runs with the land which also burdens the land where (a) the land affected by the covenants is particularly described in the instrument, (b) the instrument expressly binds successors to the original interest in the land, (c) the acts described in the instrument are related to the use, repair, maintenance, improvement, 01' payment of taxes on the land, and (d) the instrument is recorded in the appropriate county. See Monterey/Santa Cruz etc. Trades Council v. Cyrpress Marina Heights LP (201 1) 191 Ca1.App.4th 1500, 15 1 8. Here, arguably, the instrument burdens Parcel Thirteen because it includes an easement granted by the owner of Parcel Thirteen. However, all of the elements G&L William R. Gam‘ett June 22, 2018 Page 7 apply t0 create a covenant running with the land, as the RPA contains the legal descriptions as well as maps for each parcel including Parcel Thirteen, the RPA expressly states it is binding 0n successors and runs with the land, the RPA relates to the use 0fthe properties, including Parcel Thifieen, and the RPA was recorded in the Santa Clara County Recorder’s Office. As a result, the RPA constitutes a statutory covenant running with the land pursuant t0 Civil Code section 1460, and therefore, Plaintiff, as the successor-in-interest to Valley Title, is bound in the same manner as Valley Title had been bound when the RPA was originally executed and recorded. See Selfv. Sharafi (2013) 220 Ca1.App.4th 483, 493-494. Furthennore, and perhaps more impofianfly for this discussion, the covenants in the RPA are not personal, as suggested by Plaintiff in the Complaint. See, e.g. Oceanside Community Assn. v. Oceanside Land C0. (1 983) 147 Ca1.App.3d 166, 175: A personal covenant is one that by its nature is a mere personal undefiaking, and not intended to have any binding effect beyond the immediate pafiies to the instrument. (Lyford V. Noflh Pac. Coast R.R. Co. (1891) 92 Cal. 93 [28 P. 103].) (2b) Contrary t0 Pine Tree's contention, the evidence shows an intention t0 bind successors bv the express terms of the CC&Rs stating the covenant was t0 run with fie land and bind successors. bv the length of the restriction on the land (99 years) and by the testimony establishing the original covenanting panics understood the land was to be burdened, not that Developer was promising to maintain a golf course for 99 years. Similarly, here, the facts show that the parties intended to bind successors-in-interest to the RPA and thus that it was not personal. Similarly to Oceanside Community Assn, supra, here, the express language in Paragraph 12 0fthe RPA stated specifically that it was intended to run with the land and bind successors, etc., and the RPA included an express provision that the terms would continue through 2057 (i.e., for 95 years). d. Interpretation 0fthe RPA as Suggested by Plaintiff Would Render an Absurdity and an Inequity. Moreover, the rules of contract interpretation support Federal Realty’s interpretation of the RPA. Under California law, “[i]nte1pretation of a contract ‘must be fair and reasonable, not leading to absurd conclusions.’”ASP Properties Group v. Fard, Inc. (2005) 133 Ca1.App.4th 1257, 1269 (quoting Transamerica Ins. C0. v. Sayble (1 987) 193 Ca1.App.3d 1562, 1566)); California National Bank v. Woodbridge Plaza LLC (2008) 164 Ca1.App.4th 137, 143 (“Construction cannot lead to unfair or absurd results but must be reasonable and fair.”). See also California Civil Code § 1643. Similarly, “courts ‘must avoid an interpretation which will make a contract extraordinary, harsh, unjust, or inequitable.” Chavez v. Indymac Mortgage Services G&L William R. Garrett June 22, 20 1 8 Page 8 (2013) 219 Ca1.App.4th 1052, 1058 (quoting Barroso v. 0cwen Loan Sen’z‘cing, LLC (2012) 208 a1.App.4th 1001, 1013). Here, it would first be absurd to interpret the RPA as suggested by Plaintiff, in that it would allow any 0fthe original panics to the RPA, including their successors and heirs unrelated t0 the ownership/tenancy/use of the parcels comprising the Center (particularly relevant given that presumably many, if not all, 0fthe original 1962 signatories are deceased), to obstruct development in a Center in which they have 110 property interest. It would allow a person with an interest even decades-removed to interfere with others’ property rights. Particularly in light of the numerous express references in the RPA t0 the intent t0 provide for unified development 0f the Center and protection of the parcel-owners’ interests, such a result would be absurd, inequitable, and would directly contravene the clear goal 0f the RPA. e. The Acts 0f the Parties Before the Dispute Arose Show that Plaintiff Did Not Have Consent Rights as Owner 0f Parcel Thirteen. In interpreting a contract, a court may also properly review the acts and conduct 0f the parties before the dispute arose to determine the pafiies’ intent. Starlight Ridge South Homeowners Assn. v. Hunter-Bloor (2009) 177 Ca1.App.4th 440, 448; Southern Cal. Edison C0. v. Superior Court (1995) 37 Ca1.App.4th 839, 851. Here, the pafiies’ conduct before the dispute arose shows that the intent was never to provide the owners 0f Parcel Thirteen with Consent Rights. Specifically, Plaintiff alleges that it took title to Parcel Thirteen in 0r around 1975. (Complaint, 1I 23). However, although Plaintiff alleges that it is the successor to Johnson’s other interests ~ besides Johnson’s interests in Parcels Eight-Twelve H and therefore allegedly knew of the RPA, Plaintiff is not alleged to have assefled its rights under the RPA. Indeed, Plaintiff admittedly allowed significant construction and development to take place before waiting t0 file this Complaint in 2018. On the other hand, the remaining panies’ express understanding of the RPA, as shown in the Amendments thereto, reflect the proper interpretation that the owner of Parcel Thirteen (whomever that may be) has no Consent Rights. 2. Because Plaintiff Has N0 Consent Rights. the Second Cause 0f Action for Declaratorv Relief, the Third Cause 0f Action for Iniunctive Relief, and the Fifth Cause of Action for Breach 0f Contract Automatically Fail t0 State a Cause 0f Action. Plaintiff’s Second, Third, and Fifth Causes ofAction each fail to state a cause of action because they are contingent 0n Plaintiff having Consent Rights under the RPA as a matter of law; because, as shown above, that is not the case, these causes of action fail and may be dismissed. C.C.P. § 430.10(e). The Second Cause of Action requests a judicial declaration stating that the Amendments to the RPA are void because Plaintiff’s consent was not obtained, that Plaintiffhold's Consent Rights under the RPA, and that the Center remains subj ects t0 the terms of the RPA G&L William R. Garrett June 22, 201 8 Page 9 notwithstanding the Amendment. Of course, given that as a matter of law, the RPA is not reasonably susceptible to this interpretation granting Plaintiff Consent Rights, this cause of action is moot and subj ect to demurrer. Similarly, the Third Cause 0f Action requests injunctive relief preventing any further construction 0r development of the Center until Plaintiff gives its consent. Again, because Plaintiff has no Consent Rights, this cause of action is moot. Finally, the Fifth Cause ofAction alleges that the defendants, including Federal Realty, “had a contractual duty to obtain the written consent and approval 0f plaintiff to each Amendment of the RPA. . .” (Complaint, 1] 95). However, because, as stated above, Plaintiff has no Consent Rights and thus there is n0 contractual obligation to obtain Plaintiffs consent, Plaintiff fails to state a cause of action for breach of contract. Again, notwithstanding Plaintiff’s allegations that such a “contractual duty” exist, the exhibits attached to the Complaint control. SC Manufactured Homes, Inc. , supra, 162 Ca1.App.4th at 83. 3. The Sixth Cause 0f Action for Fraud Fails t0 State a Cause 0f Action and 1s Not Pled with Particularity. Plaintiff’s Sixth Cause of Action fails to state a cause of action. C.C.P. § 430.10(e). In order to survive a demurrer, a plaintiff must allege (1) that the defendant represented to the plaintiff an important fact was true; (2) that the representation was false; (3) that the defendant knew the representation was false when it was made; (4) the defendant intended plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed, and (7) the plaintiff’s reliance on the defendant’s representation was a substantial factor in causing such harm. Perlas v. GM4C Mortgage, LLC (2010) 187 Ca1.App.4th 429, 434. Moreover, “[i]n California, fraud must be pled specifically; general and conclusory allegations d0 not suffice.” Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 . The requirement to plead fraud with particularity requires “pleadingfacfs which ‘show how, when, where, to whom, and by what means the representations were tendered.” Stansfield v. Starkey (1990) 220 Ca1.App.3d 59, 73 (quoting Hills Trans C0. v. Southwesf (1968) 266 Ca1.App.2d 702, 707). Plaintiff alleges that the defendants, including Federal Realty, committed fraud by executing the Amendments “without plaintiffs knowledge and consent, presenting each Amendment to the City as inclusive 0f and signed by all owners of parcels within the Center...” (Complaint, fl 98). Plaintifffufiher alleges that defendants knew “the consent 0fthe owner of Parcel Thilteen was required in order to amend the RPA.” (Complaint, 11 99). However, as shown above, the owner of Parcel Thilteen has no Consent Rights under the RPA. Thus, right off the bat, Plaintiff fails t0 allege that (1) Federal Realty misrepresented a fact to be true, and (2) Federal Realty knew such fact was false. Fulthermore, there is no allegation whatsoever of reasonable reliance 0n the alleged misrepresentation. /// G&L William R. Garrett June 22, 201 8 Page 10 4. The Seventh Cause of Action for Interference with Contractual Relations Fails t0 State a Cause 0f Action. Plaintiff’s Seventh Cause ofAction fails t0 state a cause of action. C.C.P. § 430.10(e). To state an action for intentional interference with contractual relations, a plaintiff must plead “(1) a valid contract between plaintiff and a third party; (2) defendant's knowledge 0fthis contract; (3) defendant's intentional acts designed to induce a breach of disruption 0fthe contractual relationship; (4) actual breach 01' disruption of the contractual relationship; and (5) resulting damage.” Quelimane C0. v. Stewart Title Guaranty C0. (1998) 19 Ca1.4th 26, 55. Plaintiff alleges that defendants, including Federal Realty, engaged in conduct that has caused 01' will cause “plaintiff to be in Violation 0f the Chili’s Lease due to the fact and to the extent such redevelopment advei‘sely affects Tenant’s parking rights and use of the parking area, adds 01‘ added restaurant competition, and detracts from Tenant’s visibility at the Center.” (Complaint, 1] 109). First, notwithstanding Plaintiff’s creative wording 0f its allegations, Plaintiff fails to allege definitively that it is already in breach of the Chili’s Lease and/or that it has incurred damages as a result. Rather, to the extent that Plaintiff alleges only prospective 01‘ potential harm, the Seventh Cause of Action is not ripe for adjudication. Berger v. California Ins. Guarantee Assn. (2005) 128 Ca1.App.4th 989, 1006 (holding that plaintiffs failed to demonstrate that their claims were ripe when they alleged only that they either “have and/or Will be submitting ... c1aim[s] [in the insolvency proceedings] on 01‘ before December 31, 2003).” Moreover, Plaintiff alleges simply that the RPA is incorporated in the Chili’s Lease. (Complaint, 1] 34). Plaintiff fails to specifically identify how the Amendments, given that Plaintiff has no Consent Rights and that the owner of Parcel Thjlteen never had any Consent Rights, could constitute a breach of the RPA itself or the Chili’s Lease. Accordingly, Plaintiff fails to allege sufficient facts as to the fourth element of the cause of action, that there was an actual breach 0f disruption of the contractual relationship between Plaintiff and its tenant. 5. The First Cause of Action for Quiet Title and the Fourth Cause 0f Action for Slander 0f Title Further Fail t0 State a Cause 0f Action Because Plaintiff Fails to Allege Anv Effect on Title to Parcel Thirteen. Finally, Plaintiff’s First and Third Causes 0f Action, alleging that its title to Parcel Thirteen is impacted, fail to state a cause of action for a number ofreasons. C.C.P. § 430.10(e). On a preliminary note, Plaintiff’s First Cause of Action for Quiet Title is procedurally defective under California Code of Civil Procedure section 761 .020. The first procedural issue is that the Complaint is not verified by Plaintiff as required. Additionally, the Complaint fails to specifically allege the real property, including the legal description, Second, both the First and Fourth Causes of Action fail to allege that Plaintiff’s title has actually been affected by the alleged “adverse claims” 0f Federal Realty and the other defendants. Notwithstanding such allegations, the sum of the alleged “adverse claims” is simply the defendants’ signatures to the Amendments to the RPA. There are n0 allegations that the G&L William R. Gan'ett June 22, 2018 Page ll amendments are recorded on Plaintiffs title. Therefore, the “adverse claims” do not actually impact title given that, as shown in the enclosed Title Commitment, the Amendments to the RPA do not even appear on the title for Parcel Thirteen. In other words, with respect to slander of title, the “thrust” of the cause of action must be “protection from injury to the salability ofpropefiy.” Howard v. Scham’el (1980) 113 Ca1.App.3d 256, 264 (citing Smith v. Stuthman (1 947) 79 Ca1.App.2d 708, 709). Accordingly, one 0fthe elements t0 the tort, which the plaintiff must allege in order t0 properly state a cause 0f action that can survive demurrer, is that the defendant making the publication Which disparages title could reasonably foresee that the false publication would affect a potential buyer or lessee. Id. at 262~264; see also Wilton v. Mountain Wood Homeowners Assn. (1993) 18 Ca1.App.4th 565, 568. This is obviously not alleged in the Complaint. Further, it is unclear as to how Plaintiff could possibly assert any cause of action related to Plaintiff’s title when the Amendments t0 the RPA d0 not have any effect on the title itself. 6. Equitable Estonpel Applies to Preclude the Complaint and/or the Fourth, Fifth, Sixth, and Seventh Causes 0f Action are Barred bv the Statute 0f Limitations. Finally, because of Plaintiff’s years 0f conduct in failing to object to the development of the Center, while tens 0f millions (perhaps hundreds of millions) of dollars were spent in furtherance of said development, Plaintiff is equitably estopped from asserting that it has Consent Rights and may interfere with the development. The equitable estoppel doctrine prevents a person from asserting a right that his conduct has made unconscionable to assert. Brown v. Brown (1 969) 274 Ca1.App.2d 178, 188; Skulm’ck v. Roberfs Express, Inc. (l 992) 2 Ca1.App.4th 884, 891; see also Evid. Code § 623. “One aspect of equitable estoppel is codified in Evidence Code section 623, which provides that ‘[w]henever a pany has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement 0r conduct, permitted to contradict it.” Lam‘zy v. Centex Homes (2003) 31 Ca1.4th 363, 384. See also Civil Code § 3517 (“No one can take advantage ofhis own wrong”). Equitable estoppel applies where the following elements are present: “(1) the pafiy to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, 0r must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.” City ofLong Beach v. Mansell (1 970) 3 Cal.3d 462, 489 (quoting Driscoll v. City 0f Los Angeles (1967) 67 Cal.3d 297, 305). The concept of estoppel prevents one from pelpetrating a fraud 0n another who has relied on a failure to object. By way 0f analogy, the doctrine 0f irrevocable license, which derives in concept from estoppel, prevents a landowner who knowingly allowed their neighbor t0 expend substantial amounts of money t0 improve the owner’s land from ousting the neighbor‘from using that land. See, e.g., Cooke v. Rampom' (1952) 38 Cal.3d 282, 286-287; Richardson v. Franc (2015) 233 Ca1.App.4th 744, 751. Here, all of the elements of equitable estoppel exist to preclude Plaintiff from asselfing that it is entitled to G&L . William R. Garrett June 22, 2018 Page 12 Consent Rights. First, Plaintiff was aware that it had succeeded to the interest of Valley Title under the RPA as to Parcel Thirteen. Second, by remaining silent and allowing construction t0 continue without ever assefiing its alleged Consent Rights under the RPA, that the other parties were expending significant time, effort, and money to develop the Center and Which other palfies believed that Plaintiff’s silence was consistent with their own understanding of the RPA, which is that the owner of Parcel Thirteen had no Consent Rights. Third, the RPA does not provide Consent rights to Parcel Thirteen and the other panics were unaware that Plaintiff claimed Consent Rights under the RPA given that Plaintiff failed to do so for forty years. Fourth, the other parties relied on Plaintiff’s silence to their detriment by spending tens of millions (and perhaps hundreds) of dollars and years developing the Center. In addition, there are clear statute of limitations issues specifically with respect t0 the Fourth, Fifth, Sixth, and Seventh Causes of Action which all have applicable statutes 0f limitations of two, three, or four years. Plaintiff alleges that the defendants’ conduct giving rise t0 these causes 0f action first occurred at the signing of the First Amendment, dated September 30, 201 1, more than six years before the Complaint was filed. Thereafter, the Second Amendment is dated as of March 2, 2015, more than three years before the Complaint was filed. The common law rule is that an action accrues on the date of injury. Jolly v. Eli Lilly & C0. (1988) 44 Cal.3d 1103, 1109. Plaintiff’s alleged damages accmed as of the date 0fthe First Amendment in 201 1, because the alleged harm from Plaintiff not having the right to exercise its alleged Consent Rights would be permanent in nature, rather than continuing in character (i.e., the alleged harm cannot be discontinued because Plaintiff cannot g0 back in time to exercise its Consent Rights). See Bookout v. State ofCalifornia ex rel. Dept. ofTr‘ansportation (2010) 186 Ca1.App.4th 1478, 1489 (citing Phillips v. City ofPasadena (1945) 27 Cal.3d 104, 107); Lyles v. Stare ofCaZifomia (2007) 153 Ca1.App.4th 281, 290. Furthermore, where, as here, the Amendments were recorded and therefore gave constructive notice of their existence, the statute 0f limitations began t0 run as of the time 0fthe recording. See, e.g. Costa Serena Owners Coalition v. Costa Serena Architectural Com. (2009) 175 Ca1.App.4th 1175, 1196 (holding that causes of action seeking t0 invalidate prior amendments to a planned development’s Declaration of Restrictions were ban'ed by the statute of limitations because the causes of action accrued at the time the amendments were recorded and the plaintiff was deemed to have notice as of the time ofrecording). In the alternative, Plaintiff cannot plead nor prove that it incurred any damages related to the Third Amendment only, when there is no “new” alleged harm to Plaintiff arising out of the Third Amendment that did not already arise due to the First 01‘ Second Amendments (which actions related to are barred by the statutes of limitations). In other words, even if Plaintiff did suffer any damages as alleged in the Complaint, such damages were already accrued at the time of the Third Amendment and thus there is no Claim based on the Third Amendment alone. /// /// G&L William R. Garrett June 22, 2018 Page 13 7. The Complaint is Further Subiect t0 a Motion t0 Strike the Allegations that Erroneouslv State that the Owner 0f Parcel Thirteen Has Consent Rights, Given that Such Allega_ti0ns are Contradictory to Exhibit A t0 the Complaint, Which Controls Over Plaintiff’s Allegations. Furthermore, as stated above, Federal Realty intends t0 move to strike portions of the Complaint which are false, irrelevant, and/or contradictory to the exhibits attached t0 the Complaint (i.e., the RPA). In particular, we intend to move to strike the following: Paragraph 35, line 22: “. . .falsely. . .”; Paragraph 40, lines 13-14: “By Vifiue of being a successor-in-interest of Johnson, Johnson FLP is vested with the Consent Rights.” Paragraph 42, lines 24-27 : “As a result, Johnson FLP has been and is being denied its valuable Consent Rights and other property rights regarding, inter alia, the redevelopment 0f the Center, use of the parking area, parking rights and traffic flow, and pelmissible uses at the Center.” Paragraph 43, line 2: “. . .despite being a party to the RPA as successor-in-interest to Johnson.” Paragraph 44: “A cumulative effect of the Amendments is to deny Johnson FLP the aforesaid Consent Rights and other valuable property rights while falsely setting up defendants MGP IX SAC H and FR SAN ANTONIO as the only parties to the Agreement having Approval Rights thereunder, to the exclusion of Johnson, its heirs, successors and assigns.” Paragraph 45, line 9: “. . .and exercise its Consent Rights, or not.” Paragraph 46, line 10: “. . improperly. . .” Paragraph 47, lines 16-1 8: “. . .the Consent Rights set fofih in the RPA were repeatedly linked not to ‘the owner of’ certain identified parcels but to certain named parties, including Johnson, and the heirs, successors and assigns of those specified parties.” Paragraph 58, lines 7-10: “Defendant Federal Realty, in order t0 avoid delays and to facilitate execution of the Second Amendment, as well as the review and approval of it by the City, falsely represented therein that Federal Realty was the ground lessor 0f Parcel Thirteen.” - Paragraph 66: “Each of defendants Merlone Geier, Federal Realty and City knew or should have known at the time the Second Amendment and the Third Amendment were each executed that the owner of Parcel Thirteen would need to consent t0 any amendment of the RPA.” Paragraph 70, lines 5~6: “Exclusion of Johnson FLP from group oprproving Parties. . .” Paragraph 95: “Plaintiff alleges that defendants Merlone Geier Paltners, Machado, Buck, Federal Realty and DOES 1-50 each had a contractual duty to obtain the written consent and approval 0f plaintiffto each Amendment of the RPA prior t0 submitting it to the City in supposed satisfaction of said conditions of approval and prior to commencing the redevelopment of the Center as set forth in the amendments, each as hereinabove alleged.” G&L William R. Garrett June 22, 201 8 Page 14 - Paragraph 98: “Plaintiff alleges that defendants Merlone Geier Partners, Machado, Buck, Federal Realty and DOES 1-50 defrauded plaintiff by executing each 0fthe Amendments as hereinabove alleged, including, but not limited to, executing the Amendments without plaintiff’s knowledge and consent, presenting each Amendment t0 the City as inclusive of and signed by all owners of parcels within the Center, denying plaintiff’s Consent Rights, and/or representing certain parties as having a leasehold interest in the Propefiy, each as hereinabove alleged.” ~ Paragraph 99: “At the time each defendant executed the Amendments as hereinabove alleged, they knew the consent of the owner ofParcel Thirteen was required in order to amend the RPA.” - Paragraph 103: “Defendants made the representations, and failed to even notify plaintiff of each Amendment, with the intent t0 defraud plaintiff so that plaintiff would have no role in the redevelopment plans for the Center as reflected in the Amendments and could not exercise its Consent Rights.” - Paragraph 109: “Defendants Merlone Geier Pafiners, Buck, Machado, Federal Realty and DOES 1-50 engaged in the acts or conduct hereinabove alleged which have caused, or will cause upon continued redevelopment of the Center, plaintiff t0 be in violation of the Chili’s Lease due to the fact and to the extent such redevelopment adversely affects Tenant’s parking rights and use 0f the parking area, adds 01‘ added restaurant competition, and detracts from Tenant’s Visibility at the Center.” - Paragraph 110: “Defendants Merlone Geier Partners, Buck, Machado, Federal Realty and DOES 1-50 either intended to prevent plaintiffs’ performance under the Chili’s Lease, 01' knew that plaintiffs’ performance under the Chili’s Lease would be more expensive or burdensome, or impossible, and was certain 0r substantially certain t0 occur as a result 0f said defendants conduct, acts or omissions as hereinabove alleged.” California Code of Civil Procedure section 435(b) provides that any party, within the time allowed t0 respond to a pleading may serve and file a motion to strike the whole or any part thereof. The Court may strike any in'elevant, false or improper matter or any pan of a pleading not drawn or filed in confonm'ty with the laws of the State, a court rule, or any order 0fthe Court. C.C.P. § 436. “The grounds for a motion to strike are limited t0 matters appearing 0n the face of the challenged pleading or matters Which must or may be judicially noticed.” Garcia v. Sterling (1985) 176 Ca1.App.3d 17, 20; C.C.P. §437(a). A court may strike false or “untrue” matters containing in a pleading pursuant to section 437(a) of the Code of Civil Procedure. Garcia, supra, 176 Ca1.App.3d at 21. Further, a 001111 may strike irrelevant matters nonetheless inserted into a complaint. C.C.P. § 43 6(a); Hill v. Wrather (1958) 158 Cal.App.2d 818, 823 (citing to predecessor statute). In Hill, the court held that in a cross-complaint based 0n fraud, an allegation concerning the man‘iage between two individuals who had presented themselves as having a purely professional relationship was irrelevant, despite the claim that the cross-plaintiffs would not have entered into the contract knowing 0fthe marriage, because “it had no bearing upon the value of either the property or the services which [cross-plaintiffs] bargained for.” Id. at 824. G&L William R. Galrett June 22, 20 1 8 Page 15 Accordingly, the above-listed allegations may be subject to a Motion to Strike as false 01' untrue (in pafiicular, insofar as they directly contradict the express language of the exhibits to the Complaint, i.e., the RPA itself) and/or as irrelevant. A11 0fthe allegations listed above relate to the false allegation that the RPA entitles the owner of Parcel Thjltecn t0 Consent Rights when the express language of the RPA provides otherwise, and/or are irrelevant to the remaining issues in the Complaint. 8. Conclusion/Proposed Action As you know, we are required to hold a real-time meet and confer pursuant to C.C.P. sections 430.41(a)(2) and 435.5(a)(2) to meet and confer at least five days prior to the deadline for our responsive pleading, which is Monday, Jul): 2, 2018, pursuant to the extension oftime that you granted on June 8, 201 8. Accordingly, and given that the Court requires a substantive meet and confer effort, we propose that we conduct a telephonic meet and confer by no later than the end of business on Wednesdav, June 27, 2018. If you are unable to do so, please confirm that you have no objection to our filing a declaration pursuant to C.C.P. sections 430.41(a)(2) and 435.5(a)(2) to obtain an automatic thifiy-day extension, during which time we can meet and confer. We 100k forward to your prompt response. If you have any questions regarding the foregoing, please do not hesitate to contact me at (3 10) 552-3322. Sincerely,fl,» Daniel L. Goodkin, Esq. DLGzAJL/sy Encls. CC: Peter Sheridan psheridaanglaserweil.com Amin Al-Sarraf aalsarraf@glaserweil.com Glaser Weil Fink Howard Avchen & Shapiro LLP 333 South Hope Street, Suite 2610 Los Angeles, CA 90071 G&L Commitment No.: NCS-779586-DC72Form No. 1068-2 Page Number: 1ALTA Plain Language Commitment June 05, 2018 Update First American Title Insurance Company National Commercial Services 1850 K Street NW, Suite 1050 Washington, DC 20006 June 05, 2018 Darren Senger Federal Realty Investment Trust West Coast Development 356 Santana Row, Suite 1005 San Jose , CA 95128-2070 Phone: (408)551-2240 Fax: (408)551-4620 Customer Reference: Chili's Parcel Title Officer: Craig A. Johnson Phone: (202)530-1456 Order Number: NCS-779586-DC72 Owner: JC Johnson Property: 2560 West El Camino Real, Mountaln View, CA Attached please find the following item(s):_ Commitment Thank You for your confidence and support. We at First American Title Insurance Company maintain the fundamental principle: Customer First! First American 77t/e Insurance Company Commitment No.: NCS-779586-DC72Form No. 1068-2 Page Number: 2ALTA Plain Language Commitment First American Title Insurance Company INFORMATION The Title Insurance Commitment is a legal contract between you and the company. It is issued to show the basis on which we will issue a Title Insurance Policy to you. The Policy will insure you agalnst certain risks to the land title, subject to the limitations shown in the pollcy. The Company will give you a sample of the Policy form, if you ask. The Commitment is based on the land title as of the Commitment Date. Any changes in the land title or the transaction may affect the Commitment and the Pollcy. The Commitment is subject to its Requirements, Exceptions and Conditions. This information is not part of the title insurance commitment. TABLE OF CONTENTS Page Agreement to Issue Policy 3 Schedule A 1. Commitment Date 4 2. Policies to be Issued, Amounts and Proposed Insured 4 3. Interest in the Land and Owner 4 4. Description of the Land 4 Schedule B-1 - Requirements Schedule B-2 - Exceptions Conditions YOU SHOULD READ THE COMMITMENT VERY CAREFULLY. If you have any questions about the Commitment, please contact the issuing office. Commitment No.: NCS-779586-DC72Form No. 1068-2 Page Number: 3ALTA Plain Language Commitment COMMITMENT FOR HTLE INSURANCE Issued by First American 77176 Insurance Company Agreement to Issue Policy We agree to issue a policy to you according to the terms of this Commitment. When we show the policy amount and your name as the proposed insured in Schedule A, this Commitment becomes effective as of the Commitment Date shown in Schedule A. If the Requirements shown in this Commitment have not been met within six months after the Commitment Date, our obligation under this Commitment will end. Also, our obligation under this Commitment will end when the Policy is issued and then our obligation t0 you will be under the Policy. Our obligation under thls Commitment is limited by the following: The Provisions in Schedule A. The Requirements in Schedule B-1. The Exceptions in Schedule B-2. The Conditions. This Commitment is not valid without Schedule A and Sections 1 and 2 of Schedule B. Commitment No.: NCS-779586-DC72Form No. 1068-2 Page Number: 4ALTA Plain Language Commitment SCHEDULE A ‘1. Commitment Date: May 29, 2018 at 7:30 A.M. 2. Policy or Policies to be issued: Amount (A) ALTA Owner's Policy $1,000.00 ALTA Extended Owner Pollcy Proposed Insured: Federal Realty Investment Trust (B) ALTA Loan Policy $N/A N/A Proposed Insured: N/A 3. (A) The estate or interest in the land described in this Commitment is: FEE (B) Title to said estate or interest at the date hereof is vested in: Pamela C. Ruth, Trustee of The Pamela C. Ruth Trust as Amended April 14, 2003; Marcia R. Roper, as Trustee of The Marcia R. Roper Trust; Richard H. Lambie, as Trustee of The J. .Cyril Johnson Family Trust, dated August 14, 1968, as restated; Maureen L. Ruth and Howard B. Ruth; as their interests may appear of record 4. The land referred t0 in this Commitment is situated in the City of Mountain View, County of Santa Clara, State of California, and is described as follows: BEGINNING AT THE MOST EASTERLY CORNER OF THAT PARCEL OF LAND CONVEYED BY A.D. MC LEAN, ET UX, TO MORRIS B. MCCOLLEY, ET UX, BY DEED DATED OCTOBER 20, 1945 AND RECORDED NOVEMBER 28, 1945 IN BOOK 1313 OF OFFICIAL RECORDS, PAGE 177, RECORDS OF SANTA CLARA COUNTY, CALIFORNIA; THENCE SOUTH 33 DEG. 15' WEST ALONG THE SOUTHEAST LINE THEREOF 400 FEET TO THE NORTHEAST LINE OF THE SAN FRANCISCO AND SAN JOSE HIGHWAY; THENCE SOUTH 56 DEG. 13' EAST ALONG THE LINE OF SAID HIGHWAY, 65.61 FEET; THENCE NORTH 33 DEG, 25' EASTA DISTANCE OF 400 FEET; THENCE NORTHWESTERLY 65.61 FEET, MORE OR LESS, TO THE POINT OF BEGINNING. APN: 148-2 1-008 Commitment No.: NCS-779586-DC72Form No. 1068-2 Page Number: 5ALTA Plain Language Commltment SCHEDULE B SECTION ONE REQUIREMENTS The following requirements must be met: (A) Pay the agreed amounts for the interest in the land and/or the mortgage to be insured. (B) Pay us the premiums, fees and charges for the policy. (C) Documents satisfactory to us creating the interest in the land and/or the mortgage to be insured must be signed, delivered and recorded. (D) You must tell us in writing the name of anyone not referred to in this Commitment who will get an interest in the land or who will make a loan on the land. We may then make additional requirements or exceptions. (E) Releases(s) or Reconveyance(s) 0f Item(s): None (F) Other: None (G) You must give us the following Information: 1. Any off record leases, surveys, etc. 2. Statement(s) of Identity, all parties. 3. Other: With respect to the trust referred to in the vesting: a. A certification pursuant to Section 18100.5 of the California Probate Code in a form satisfactory to the Company. b. Copies of those excerpts from the original trust documents and amendments thereto which designate the trustee and confer upon the trustee the power to act in the pending transaction. c. Other requirements which the Company may impose following its review of the material requlred herein and other Information which the Company may require. A deed from the spouse of any married vestee herein be recorded in the public records, or the joinder of the spouse of any married vestee named herein on any conveyance, encumbrance or lease to be executed by the vestee. The deed should contaln the following statement: "It is the express intent of the grantor, being the spouse of the grantee, to convey all right, title and interest of the grantor, community or otherwise, in and to the herein described property to the grantee as his/her sole and separate property." The following additional requirements, as indicated by "X", must be met: [X] (H) Provide information regarding any off-record matters, which may include, but are not limited to: leases, recent works of improvement, or commitment statements in effect under the Environmental Responsibility Acceptance Act, Civil Code Sectlon 850, et seq. Form No. 1068-2 ALTA Plain Language Commitment [X] [J [] [1 [J [] [X] [J Commitment No.: NCS-779586-DC72 Page Number: 6 The Company's Owner's Affidavit form (as provided by company) must be completed and submitted prior to close in order to satisfy this requirement. This Commitment will then be subject to such further exceptions and/or requirements as may be deemed necessary. (I) An ALTA/ACSM survey of recent date, which complies with the current minimum standard detail requirements for ALTA/ACSM land title surveys, must be submitted to the Company for review. This Commitment will then be subject to such further exceptions and/or requirements as may be deemed necessary. (J) The following LLC documentation is required: (i) a copy of the Articles of Organization (ii) a copy of the Operating Agreement, if applicable (iii) a Certificate of Good Standing and/or other evidence of current Authority to Conduct Business within the State (iv) express Company Consent to the current transaction (K) The following partnership documentation is required : (i) a copy of the partnership agreement, including all applicable amendments thereto (ii) a Certificate of Good Standing and/or other evidence of current Authority to Conduct Business within the State (Iii) express Partnership Consent to the current transaction (L) The following corporation documentation is required: (I) a copy of the Articles of Incorporation (ii) a copy of the Bylaws, including all applicable Amendments thereto (iii) a Certificate of Good Standing and/or other evidence of current Authority to Conduct Business within the State (iv) express Corporate Resolution consenting to the current transaction (M) Based upon the Company's review of that celtaln partnership/operating agreement dated Not disclosed for the proposed insured herein, the following requirements must be met: Any further amendments to said agreement must be submitted to the Company, together with an affidavit from one of the general partners or members stating that it is a true copy, that said partnership or limited liability company is in full force and effect, and that there have been no further amendments to the agreement. This Commitment will then be subject to such further requirements as may be deemed necessary. (N) A copy of the complete lease, as referenced in Schedule A, #3 herein, together with any amendments and/or assignments thereto, must be submitted to the Company for review, along with an affidavit executed by the present lessee stating that it is a true copy, that the lease is in full force and effect, and that there have been no further amendments to the lease. This Commitment will then be subject to such further requirements as may be deemed necessary. (O) Approval from the Company's Underwriting Department must be obtained for issuance of the policy contemplated herein and any endorsements requested thereunder. Thls Commitment will then be subject to such further requirements as may be required to obtain such approval. (P) Potential additional requirements, if ALTA Extended coverage is contemplated hereunder, and work on the land has commenced prior to close, some or all of the following requirements, and any other requirements which may be deemed necessary, may need to be met: Form N0. 1068-2 ALTA Plain Language Commitment [1 [J [] [J [] Commitment No.: NCS-779586-DC72 Page Number: 7 (Q) The Company's "Indemnlty Agreement I" must be executed by the appropriate parties. (R) Financial statements from the appropriate parties must be submitted to the Company for review. (S) A copy of the construction contract must be submitted to the Company for review. (T) An inspection of the land must be performed by the Company for verification of the phase of construction. (U) The Company's "Mechanic's Lien Risk Addendum" form must be completed by a Company employee, based upon information furnished by the appropriate parties involved. Commitment No.: NCS-779586-DC72Form No. 1068-2 Page Number: 8ALTA Plain Language Commitment SCHEDULE B SECTION TWO EXCEPTIONS Any policy we issue will have the following exceptions unless they are taken care of to our satisfaction. The printed exceptions and exclusions from the coverage of the policy or policies are set forth in Exhibit A attached. Copies of the policy forms should be read. They are available from the office which issued this Commitment. 1. General and special taxes and assessments for the fiscal year 2018-2019, a lien not yet due or payable. 2. This item has been intentionally deleted. 3. The Ilen of supplemental taxes, if any, assessed pursuant to Chapter 3.5 commencing with Section 75 of the California Revenue and Taxation Code. 4. The terms and provisions contained in the document entitled "AGREEMENT " recorded DECEMBER 6, 1962 as IN BOOK 5818! PAGE 163 of Official Records. 5. The terms and provisions contained in the document entitled "AGREEMENT" recorded APRIL 3, 1963 as IN BOOK 5969! PAGE 24 of Official Records. 6. The terms and provisions contained in the document entitled "AGREEMENT" recorded MAY 29, 1963 as IN BOOK 6043K PAGE 410 of Official Records. 7. An easement for STREET AND PUBLIC UTILITIES and lncldental purposes, recorded MAY 29, 1963 as IN BOOK 6043! PAGE 418 of Official Records. In Favor of: CITY OF MOUNTAIN VIEW Affects: as described therein AT THE TIME OF GRANTING THEREOF, J. CYRIL JOHNSON INVESTMENT CORP, GRANTOR THEREIN, HAD NO RECORD INTEREST IN PREMISES, NOR SINCE HAS ACQUIRED ANY SUCH INTEREST. 8. The terms and provisions contained in the document entitled "AGREEMENT" recorded DECEMBER 17, 1963 as IN BOOK 6311! PAGE 693 of Official Records. 9. An easement for A ROADWAY EASEMENT and incidental purposes, recorded OCTOBER 8, 1970 as IN BOOK 9081 PAGE 433 0f Official Records. In Favor of: CITY OF MOUNTAIN VIEW Affects: as described therein 10. The terms and provisions contained in the document entitled "AGREEMENT" recorded APRIL 11, 1974 as IN BOOK 0844! PAGE 698 of Official Records. 11. A document entltled "JOINT VENTURE AGREEMENT " recorded JANUARY 27, 1976 as IN BOOK 8839! PAGE 366 of Official Records. Form No. 1068~2 ALTA Plain Language Commitment 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. Commitment No.: NCS-779586-DC72 Page Number: 9 The terms and provisions contained in the document entitled "AGREEMENT" recorded SEPTEMBER 24, 1984 as IN BOOKI 907, PAGE 427, AS INSTRUMENT NO. 8198038 0f Official Records. Terms and provisions of an unrecorded lease dated FEBRUARY 19, 1986, by and between J. CYRIL JOHNSON AND HOWARD RUTH, JR., A JOINT VENTURE as lessor and NORTHWEST RESTAURANTS JOINT VENTURE as lessee, as dlsclosed by a MEMORANDUM OF LEASE recorded FEBRUARY 27, 1986 as INSTRUMENT NO. 8701910, BOOK J 614, PAGE 1509 of Official Records. Defects, liens, encumbrances or other matters affecting the leasehold estate, whether or not shown by the public records are not shown herein. The terms and provisions contained In the document entitled "STREET IMPROVEMENT AGREEMENT (CONDITION OF BUILDING PERMIT)" recorded DECEMBER 8, 1994 as INSTRUMENT NO. 12743670, BOOK N 693, PAGE 574 of Official Records. Any claim that the Title is subject to a trust or lien created under The Perishable Agricultural Commodities Act, 1930 (7 U.S.C. §§499a, et seq.) or the Packers and Stockyards Act (7 U.S.C. §§181 et seq.) or under similar state laws. Any facts, rights, interests or claims which would be disclosed by a correct ALTA/ACSM survey. Rights of parties in possession. The effect of a deed executed by Richard H. Lambie, Trustee of J. Cyril Johnson Family Trust dated 8/14/1969, as restated to Mark C. Johnson, Trustee for Johnson Family Trust, established 7/17/1989, Kathleen Eyring, and Craig L. Johnson, each as to an individual one-third (1/3) interest as tenants in common, recorded April 20, 2018 as Instrument No. 23914589 of Official Records. The Company will require satisfactory evidence that the deed was an absolute conveyance for value and that there are no other agreements, oral or written, regarding the ownership or occupancy of the land described in the deed. The effect of a document entitled "Affidavit-Death of Beneficiaries", recorded April 24, 2018 as Instrument No. 23917003 of Official Records. The effect of a deed executed by Mark C. Johnson, Trustee for Johnson Family Trust, established 7/17/1989, Kathleen Eyring, and Craig L. Johnson, each as to an individual one-third (1/3) Interest as tenants in common to J. Cyril Johnson Family Limited Partnershlp, a California Limited Partnership, recorded April 24, 2018 as Instrument No. 23917004 of Official Records. The Company will require satisfactory evidence that the deed was an absolute conveyance for value and that there are no other agreements, oral or written, regarding the ownership or occupancy of the land described in the deed. Any defects, liens, encumbrances or other matters which name parties with the same or similar names as J. Cyril Johnson, Mark C. Johnson, Annette N. Johnson, Craig L. Johnson and Gerald C. Johnson. The name search necessary to ascertain the existence of such matters has not been completed. In order to complete this preliminary report or commitment, we will require a statement of information. Any right, title or interest of the spouse, if any, of any married vestee herein. Commitment No.: NCS-779586-DC72Form No. 1068-2 Page Number: 10ALTA Plain Language Commitment I INFORMATIONAL NOTES 1 ALERT - CA Senate Bill 2 imposes an additional fee of $75 up to $225 at the time of recording on certain transactions effective January 1, 2018. Please contact your First American Title representative for more information on how this may affect your closing. 1. Taxes for proration purposes only for the fiscal year 2017-2018. First Installment: $5,750.55, PAID Second Installment: $5,750.55, PAID Tax Rate Area: 005-009 APN: 148-21-008 2. According to the latest available equalized assessment roll in the office of the county tax assessor, there is located on the land a(n) Commercial Structure known as 2560 West El Camino Real, Mountain View, CA. 3. According to the public records, there has been no conveyance of the land within a period of tWenty-four months prior to the date of this report, except as follows: None 4. This preliminary report/commitment was prepared based upon an application for a policy of title insurance that identified land by street address or assessor's parcel number only. It is the responsibility of the applicant to determine whether the land referred to herein is in fact the land that is to be described in the policy or policies to be issued. The map attached, if any, may or may not be a survey of the land depicted hereon. First American Title Insurance Company expressly disclaims any liability for loss or damage which may result from reliance on this map except to the extent coverage for such loss or damage is expressly provided by the terms and provisions of the title insurance policy, if any, to which this map is attached. *****7'0 obtain wire instructions for deposit 0ffunds t0 your escrow file please contact your Escrow Officer. ***** Commitment No.: NCS-779586-DC72Form No. 1068-2 Page Number: 11ALTA Plain Language Commitment CONDITIONS 1. DEFINITIONS (a)"Mortgage" means mortgage, deed of trust or other security instrument. (b)"'Public Records" means title records that give constructive notice of matters affecting the title according to the state law where the land is located. 2. LATER DEFECTS The Exceptions in Schedule B - Section Two may be amended to show any defects, liens or encumbrances that appear for the first time in the public records or are created or attached between the Commitment Date and the date on which all of the Requirements (a) and (c) of Schedule B - Section One are met. We shall have no liability to you because of this amendment. 3. EXISTING DEFECTS If any defects, liens or encumbrances existing at Commitment Date are not shown in Schedule B, we may amend Schedule B to show them. If we do amend Schedule B to show these defects, liens or encumbrances, we shall be liable to you according to Paragraph 4 below unless you knew of this information and did not tell us about it in writing. 4. LIMITATION OF OUR LIABILITY Our only obligation is to issue to you the Policy referred to in this Commitment, when you have met its Requirements. If we have any liability to you for any loss you incur because of an error in this Commitment, our liability wlll be llmited to your actual loss caused by your relying on this Commitment when you acted in good faith to: comply with the Requirements shown in Schedule B - Section One or eliminate wlth our written consent any Exceptions shown in Schedule B - Section Two. We shall not be liable for more than the Policy Amount shown in Schedule A of this Commitment and our liability is subject to the terms of the Policy form to be issued to you. 5. CLAIMS MUST BE BASED ON THIS COMMITMENT Any claim, whether or not based on negligence, which you may have against us concerning the title to the land must be based on this commitment and is subject to its terms. Commitment No.: NCS-779586-DC72Form No. 1068-2 Page Number: 12ALTA Plain Language Commitment Au .i‘ "’ew I E'rstAmerican Title(Kg Privacy Information We Are Committed lo Safeguardlng Customer Informallan In order to better serve your needs now and In the future, we may ask you to provide us wilh certain Information. We understand that you may be concerned about what we wlll do wlth such Informatbn - particularly any personal or financial Information. We agree that you have a right to know how we will utilize lhe personal Information you pmvlde to us. Thexefore, together with our subsidiaries we have adopted this Privacy Pollcy to govern the use and handling of your personal information. Appllcablllty Thls Privacy Policy governs our use of the information that you provide to us. It does not govern the manner In which we may use Information we have obtained from any other source, such as information obtained from a publlc record or fmm another person or entity. Flrst Amencan has also adopted broader guidelines that govern our use of personal Information regardless of Its source. First American calls these guidelines Its Fair Information Values. Types of Information Depending upon which of our servlces you are utlllzlng, the typB of nonpubllc pelsonal Informatlon that we may collect Include: 0 Information we receive from you on applications, forms and In other communications to us, whether In writing, In person, by telephone or any other means; 0 Information about your transactions wlth us, our affiliated companies, or others; and 0 Information we recelve from a consumer reporting agenq. Use of Information We request Information from you for our own legitimate business purposes and not for the benefit of any nonafflllated party. Therefore, we will not release your information to nonamllated parties except: (1) as necessary for us to provide the product or service you have requested of us; or (2) as permitted by law. We may, however, store such information lndeflnltely, Including the period after whlch any customer relationship has ceased. Such Information may be used for any Internal purpose, such as quality control efforts or customer analysls. We may also provide all cf the types of nonpubllc petsonal Information listed above to one or more of our affiliated companles. Such al’flllated companies Include flnandal service providers, such as title Insurers, propetty and msualty Insurers, and trust and Investment advisory companies, or companies Involved In real estate services, such as appraisal companles, home warranty companies and escrow companies. Furthermore, we may also provide all the information we collect, as described above, to companies that petform marketing services on our behalf, on behalf of our arflllated companies or to other financial lnslltutlons wlth whom we or our affiliated companies have joint marketing agreements. Farmer Customers Even If you are no longer our customer, our Privacy Pollcy wlll continue to apply to you. Confidentiality and Security We will use our best efforts to ensure that no unauthorized parties have access to any of your Informatlon. We restrlct access to nonpublic personal information about you to those Individuals and entitls who need to know that Information to provide products or services K0 you. We wlll use our best efforts to train and oversee our employees and agents to ensure that your Information wm be handled responsibly and ln accordance with this Privacy Pollcy and First Ametlcan's Falr Information Values. We currently malntaln physical, electronic, and procedural safeguards that comply with fedetal regulations to guard your nonpublic personal Information. Information Obtained Through Our Web Site First Amerlmn Financial Corporation ls sensitive to privacy Issues on the Internet. We believe it ls Important you know how we treat the Information about you we receive on the Internet. In general, you can visit First Amerlcan or Its afflliates’ Web sites on lhe World Wide Web without telling us who you are or revealing any Information about yourself. Our Web sewers collect the domain names, not the email addresses, of visitors. Thls Information ls aggregated to measure the number of vlslts, average time spent on lhe site, pages viewed and slmllar Information. First American uses thls Information Io measure the use of our slte and to develop Ideas to Improve the content of our site. mere are times, however, when we may need information from you, such as your name and emall address. When Information ls needed, we wlll use our best efforts to let you know at the time of collection how we wlll use the personal Information. Usually, the personal Informatlon we collect Is used only by us to respond lo your Inquiry, process an order or allow you to access specific account/profile Informaflon. If you choose to share any personal Information wlth us, we wlll only use lt In accordance wlth the policies outlined above. Business Relationships First American Financial Corporation's slte and Its affiliates‘ sltes may contaln llnks to other Web sites. While we try to link only to sites that share our high standards and respect ror privacy, we are not responslble for the content or the privacy practices employed by othe! sites. Cuokles Some of First Amerlcan's Web sites may make use or "cookie" technology to measure slte activlty and to customize Information to your personal tastes. A cookle ls an element of data that a Web site can send to your browser, whlch may then store the cookie on your hard drive. FirstAm‘com uss stored cookles. The goal of this technology is to better serve you when visiting our site, save you time when you are hem and to provide you wlth a more meaningful and productive Web site experlence. Fair Informafian Values Fairness We consider consumer expectatlons about thelr privacy In all our businesses. We only offer products and services that assure a favomble balance between consumer benefits and consumer pflvacy. Public Record We belleve that an open public record creates slgnlflcant value for society, enhances consumer cholce and creates consumer opportunity. We actively support an open publlc record and emphasize Its Importance and conttlbutlon lo our economy. Use We believe we should behave responsibly when we use Information about a consumer In our business. We wlll obey the laws governing the collectlon, use and dissemination of data. Accuracy We wlll take reasonable steps lo help assure the accuracy of the data we collect, use and dlssemlnate. Where posslble, we wlll take reasonable steps to cortect Inaccurate Informatlon. When, a5 with the publlc record, we cannot correct inaccurate Information, we will take all reasonable steps to assist consumers In Identifying the source of the erroneous data so that the consume! can secure the required correctlons. Education We endeavor to educate the users of our products and services, our employees and others In our Industry about the Importance of consumer privacy. We will Instruct our employees on our fair Information valus and on the responsible collection and use of data. We will encourage others in our industry to collect and use Information In a responslble manner. Security We will malntaln appropriate facilities and systems to protect against unauthmlzed access to and corruptlon of the data we malnkaln. Form 50-PRIVACY (9/1/10) Page 1 of1 Privacy Information (2001-2010 First American Financial Corporation) Form No. 1068-2 ALTA Plain Language Commitment Commitment No.: NCS-779586-DC72 Page Number: 13 EXHIBIT A LIST OF PRINTED EXCEPTIONS AND EXCLUSIONS (BY POLICY TYPE) 1. CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY - 1990 SCHEDULE B EXCEPTIONS FROM COVERAGE This policy does not Insure against loss or damage (and the Company wlll not pay costs, attorneys' fees or expenses) which arise by reason of: 1. Taxes or assessments which are not shown as existing liens by the records of any taxlng authority that levies taxes or assessments on real property or by the public records. Proceedings by a publlc agency whlch may result In taxes or assessments, or notice of such proceedings, whether or not shown by the records of such agency or by the public records. Any facts, rights, Interests, or claims whlch are not shown by the public records but which could be ascertained by an Inspection of the land or which may be asserted by persons in possession thereof. Easements, liens or encumbrances, or claims thereof, which are not shown by the publlc records. Discrepancies, conflicts In boundary lines, shortage In area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by the public records. (a) Unpatented mlnlng claims; (b) reservations or exceptions in patents or in Acts authorizing the Issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the public records. EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of thls policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: 1. (a) Any law, ordinance or governmental regulation (including but not limited to bulldlng and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any Improvement now or hereafter erected on the land; (iii) a separation In ownership or a change in the dimensions or area of the land or any parcel of which the land ls or was a part; or (Iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, llen or encumbrance resulting from a violation or alleged violation affecting the land has been recorded In the publlc records at Date of Policy. (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, Ilen or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. nghts of eminent domain unless notice of the exercise thereof has been recorded ln the publlc records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Pollcy whlch would be binding on the rights of a purchaser for value without knowledge. Defects, liens, encumbrances, adverse clalms or other matters: (a) whether or not recorded in the public records at Date of Pollcy, but created, suffered, assumed or agreed to by the insured clalmant; (b) not known to the Company, not recorded in the public records at Date of Pollcy, but known to the insured claimant and not disclosed In writing to the Company by the insured claimant prior to the date the insured clalmant became an insured under this policy; (c) resulting in no loss or damage to the Insured claimant; (d) attachlng or created subsequent to Date of Pollcy; or (e) resulting in loss or damage which would not have been sustained ifthe Insured claimant had paid value for the insured mortgage or for the estate or interest insured by this policy. Unenforceabllity of the lien of the insured mortgage because of the Inability or failure of the insured at Date of Policy, or the lnablllty or failure of any subsequent owner of the Indebtedness, to comply wlth applicable "dolng business" laws of the state ln whlch the land ls situated. Invalidity or unenforceablllty of the llen of the Insured mortgage, or claim thereof, which arises out of the transaction evidenced by the Insured mortgage and is based upon usury or any consumer credlt protectlon or truth In lending law. Any claim, which arises out of the transaction vesting in the insured the estate or Interest insured by their policy or the transaction creating the interest of the Insured lender, by reason of the operation of federal bankruptcy, state insolvency or slmllar credltors' rights laws. 2. AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY FORM B - 1970 SCHEDULE 0F EXCLUSIONS FROM COVERAGE Any law, ordinance or governmental regulation (Including but not limited to building and zoning ordinances) restricting or regulating or prohibiting the occupancy, use or enjoyment of the land, or regulating the character, dimensions or locatlon of any Improvement now or hereafter erected on the land, or prohibiting a separation ln ownership or a reduction in the dimensions of area of the land, or the effect of any violation of any such law, ordinance or governmental regulation. nghts of eminent domain or governmental rights of police power unless notlce of the exercise of such rights appears in the publlc records at Date of Pollcy. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company and not shown by the publlc records but known to the insured clalmant either at Date of Pollcy or at the date such claimant acquired an estate or interest Insured by thls pollcy afid not disclosed in writing by the insured claimant to the Company prior to the date such insured claimant became an insured hereunder; (c) resulting in no loss or damage to the Insured claimant; (d) attaching or created subsequent to Date of Policy; or (e) resulting in loss or damage whlch would not have been sustalned If the insured claimant had paid value for the estate or interest insured by this pollcy. 3. AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY FORM B - 1970 WITH REGIONAL EXCEPTIONS When the American Land Tltle Association policy ls used as a Standard Coverage Policy and not as an Extended Coverage Policy the exclusions set forth In paragraph 2 above are used and the following exceptions to coverage appear in the pollcy. SCHEDU LE B Commitment No.: NCS-779586-DC72Form No. 1068-2 Page Number: 14ALTA Plain Language Commitment This pollcy does not insure against loss or damage by reason of the matters shown in parts one and two followlng: Part One 1. Taxes or assessments whlch are not shown as existing Hens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. 2. Any facts, rights, interests, or clalms whlch are not shown by the public records but which could be ascertained by an Inspectlon of said land or by making Inquiry of persons In possession thereof. 3. Easements, clalms of easement or encumbrances whlch are not shown by the publlc records. 4 Discrepancies, confllcts In boundary lines, shortage in area, encroachments, or any other facts whlch a correct survey would disclose, and which are not shown by public records. 5. Unpatented mining claims; reservations or exceptions in patents or in Acts authorizing the issuance thereof; water rights, claims or title to water. 6. Any llen, or rlght to a Ilen, for services, labor or material heretofore or hereafler furnlshed, Imposed by law and not shown by the public records. 4. AMERICAN LAND TITLE ASSOCIATION LOAN POLICY - 1970 WITH A.L.T.A. ENDORSEMENT FORM 1 COVERAGE SCHEDULE 0F EXCLUSIONS FROM COVERAGE 1. Any law, ordinance or governmental regulation (including but not limited to building and zoning ordinances) restricting or regulatlng or prohlbltlng the occupancy, use or enjoyment of the land, or regulating the character, dimensions or location ofany improvement now or hereafter erected on the land, or prohibiting a separation In ownershlp or a reduction In the dlmenslons or area of the land, or the effect of any violation of any such law ordinance or governmental regulation. 2. Rights of eminent domaln or governmental rights of police power unless notice of the exercise of such rights appears In the public records at Date of Policy. 3. Defects liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed or agreed to by the Insured clalmant, (b) notl known to the Company and not shown by the publlc records but knowu to the Insured claimant elther at Date of Policy or at the date such claimant acquired an estate or Interest Insured by this policy or acquired the insured mortgage and not disclosed in writing by the insured claimant to the Company prior to the date such Insured claimant became an Insured hereunder, (c) resulting in no loss or damage to the Insured claimant; (d) attaching or created subsequent to Date of Policy (except to the extent Insurance ls afforded herein as to any statutory lien for labor or material or to the extent insurance is afforded herein as to assessments for street improvements under constructlon or completed at Date of Pollcy). 4. Unenforceabllity of the Ilen of the insured mortgage because of fallure of the Insured at Date of Policy or of any subsequent owner of the Indebtedness to comply with applicable "doing business" laws of the state in whlch the land is situated. 5. AMERICAN LAND TITLE ASSOCIATION LOAN POLICY - 1970 WITH REGIONAL EXCEPTIONS When the American Land Tltle Association Lenders Policy is used as a Standard Coverage Policy and not as an Extended Coverage Policy, the exclusions set forth in paragraph 4 above are used and the followlng exceptions to coverage appear in the policy. SCHEDULE B Thls policy does not insure against loss or damage by reason of the matters shown 1n parts one and two following: Part One 1. Taxes or assessments whlch are not shown as existing liens by the records of any taxing authority that Ievles taxes or assessments on real property or by the public records. 2. Any facts, rights, Interests, or clalms'whlch are not shown by the public records but which could be ascertained by an inspection of sald land or by making Inquiry of persons ln possession thereof. 3. Easements, claims of easement or encumbrances whlch are not shown by the publlc records. 4. Discrepancies, conflicts in boundary lines, shortage In area, encroachments, or any other facts whlch a correct survey would disclose, and which are not shown by publlc records. 5. Unpatented mlnlng clalms; reservations or exceptions ln patents or in Acts authorizing the Issuance thereof; water rights, claims or tltle to water. 6. Any Hen, or right to a lien, for services, labor or material theretofore or hereafter furnished, Imposed by law and not shown by the public records. 6. AMERICAN LAND TITLE ASSOCIATION LOAN POLICY - 1992 WITH A.I..T.A. ENDORSEMENT FORM 1 COVERAGE EXCLUSIONS FROM COVERAGE The followlng matters are expressly excluded from the coverage of thls policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: l. (a) Any law, ordlnance or governmental regulation (Including but not llmited to bulldlng and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (l) the occupancy, use, or enjoyment of the land; (ll) the character, dlmenslons or location of any improvement now or hereafter erected on the land; (lli) a separation in ownership or a change In the dlmenslons or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violatlon of these laws, ordlnances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded In the publlc records at Date of Policy; (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, llen or encumbrance resulting from a violatlon or alleged violation affecting the land has been recorded in the public records at Date of Policy. Commitment No.: NCS-779586-DC72Form No. 1068-2 Page Number: 15ALTA Plaln Language Commitment 2. Rights of eminent domain unless notice of the exercise thereof ha‘s been recorded In the publlc records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects, liens, encumbrances, adverse claims, or other matters: (a) whether or not recorded in the public records at Date of Policy, but created, suffered, assumed or agreed t0 by the insured claimant; (b) not known to the Company, not recorded In the publlc records at Date of Pollcy, but known to the insured claimant and not disclosed In writing to the Company by the Insured claimant prlor to the date the Insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy (except to the extent that thls policy lnsures the priority 0fthe lien of the insured mortgage over any statutory Ilen for services, labor or material or the extent insurance is afforded herein as to assessments for street improvements under construction or completed at date of policy); or (e) resulting in loss or damage which would not have been sustained if the Insured claimant had pald value for the insured mortgage. 4. Unenforceability of the lien of the insured mortgage because of the inability or failure of the insured at Date of Pollcy, or the inabillty or failure of any subsequent owner of the indebtedness, to comply wlth the applicable "dolng business" laws of me state in which the land is situated. 5. Invalidity or unenforceablllty of the llen of the Insured mortgage, or clalm thereof, which arises out of the transaction evidenced by the Insured mortgage and i5 based upon usury or any consumer credit protection or truth In lending law. 6. Any statutory lien for services, labor or materials (or the claim of priority of any statutory llen for services, labor or materials over the lien of the Insured mortgage) arising from an improvement or work related to the land whlch ls contracted for and commenced subsequent to Date of Pollcy and ls not financed in whole or ln part by proceeds of the Indebtedness secured by the Insured mortgage which at Date of Policy the insured has advanced or ls obligated to advance. 7. Any claim, which arises out of the transaction creating the interest of the mortgagee Insured by thls policy, by reason of the operation of federal bankruptcy, state Insolvency, or similar credltors' rights laws, that ls based on: (i) the transaction creating the Interest of the Insured mortgagee belng deemed a fraudulent conveyance or fraudulent transfer; or (il) the subordination of the interest of the Insured mortgagee as a result of the application of the doctrine of equitable subordination; or (Iii) the transaction creating the Interest of the Insured mortgagee being deemed a preferentlal transfer except where the preferential transfer results from the failure: (a) to timely record the instrument of transfer; or (h) of such recordation to impart notice to a purchaser for value or a judgment or Ilen creditor. 7. AMERICAN LAND TITLE ASSOCIATION LOAN POLICY - 1992 WITH REGIONAL EXCEPTIONS When the Amerlcan Land Tltle Assoclation poIIcy ls used as a Standard Coverage Pollcy and not as an Extended Coverage Pollcy the exclusions set forth in paragraph 6 above are used and the following exceptions to coverage appear In the policy. SCHEDULE B Thls policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: 1. Taxes or assessments which are not shown as exlstlng Ilens by the records of any taxing authority that Ievles taxes or assessments on real property or by the public records. 2. Any facts, rights, Interests, or claims which are not shown by the publlc records but whlch could be ascertained by an inspection of sald land or by making lnqulry of persons in possession thereof. 3. Easements, clalms of easement or encumbrances which are not shown by the public records. 4. Discrepancies, confllcts In boundary lines, shortage in area, encroachmenls, or any other facts which a correct survey would disclose, and which are not shown by publlc records. 5. Unpatented mlnlng clalms; reservations or exceptions In patents or In Acts authorizing the issuance thereof; water rights, clalms or tltle to water. 6. Any lien, or rlght to a llen, for services, labor or material theretofore or hereafter furnished, imposed by law and not shown by the publlc records. 8. AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY - 1992 EXCLUSIONS FROM COVERAGE The followlng matters are expressly excluded from the coverage of this policy and the Company wlll not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: l. (a) Any law, ordinance or governmental regulation (including but not llmited to bulldlng and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (ll) the character, dimensions or location of any improvement now or hereafler erected on the land; (iii) a separation in ownership or a change In the dimensions or area of the land or any parcel of whlch the land ls or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordlnances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, Ilen or encumbrance resulting from a violation or alleged violation affecting the land has been recorded In the publlc records at Date of Policy. (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resultlng from a violation or alleged violation affecting the land has been recorded ln the public records at Date of Policy. 2. Rights of emlnent domaln unless notice of the exercise thereof has been recorded In the public records at Date of Policy, but not excluding from coverage any taking which has occurred prlor to Date of Policy whlch would be binding on the rights of a purchaser for value wlthout knowledge. 3. Defects, liens, encumbrances, adverse claims, or other matters: (a) created, suffered, assumed or agreed to by the Insured claimant; (b) not known to the Company, not recorded in the public records at Date of Pollcy, but known to the Insured claimant and not disclosed in writing to the Company by the Insured claimant prior to the date the insured claimant became an Insured under thls policy; (c) resultlng ln no loss or damage to the Insured claimant; (d) attaching or created subsequent to Date of Policy; or Commitment No.: NCS-779586-DC72Form No. 1068-2 Page Number: 16ALTA Plaln Language Commitment (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest Insured by this policy. Any clalm, whlch arises out of the transaction vesting in the insured the estate or interest Insured by thls pollcy, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors‘ rights laws, that is based on: (l) the transaction creating the estate or interest insured by this policy being deemed a fraudulent conveyance or fraudulent transfer; or (ii) the transactlon creatlng the estate or Interest Insured by thls pollcy belng deemed a preferential transfer except where the preferential transfer results from the failure: (a) to timely record the instrument of transfer; or (b) of such recordation to impart notice to a purchaser for value or a judgment or lien creditor. 9. AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY - 1992 WITH REGIONAL EXCEPTIONS When the American Land Tltle Association policy is used as a Standard Coverage Policy and not as an Extended Coverage PoIicy the exclusions set forth in paragraph 8 above are used and the followlng exceptions to coverage appear in the policy. SCHEDULE B Thls policy does not insure against loss or damage (and the Company wlll not pay costs, attorneys' fees or expenses) whlch arlse by reason of: Part One: 1 . 2. 3. 4. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the publlc records. Any facts, rights, Interests, or clalms which are not shown by the public records but whlch could be ascertained by an Inspection of said land or by making inquiry of persons in possession thereof. Easements, clalms of easement or encumbrances whlch are not shown by the publlc records. Discrepancies, conflicts in boundary lines, shortage In area, encroachments, or any other facts which a correct survey would disclose, and whlch are not shown by public records. Unpatented minlng claims; reservations or exceptions in patents or in Acts authorizing the Issuance thereof; water rights, clalms or tltle to water. Any lien, or rlght to a Ilen, for services, labor or material theretofore or hereafter furnished, Imposed by law and not shown by the public records. ALTA RESIDENTIAL TITLE INSURANCE POLICY (6-1-87) EXCLUSIONS In addition to the Exceptions in Schedule B, you are not Insured against loss, costs, attorneys' fees, and expenses resulting from: 1. Governmental police power, and the existence or violation of any law or government regulation. This includes building and zoning ordinances and also laws and regulations concernlng: (a) and use (b) Improvements on the land (c) and dlvislon (d) environmental protection This excluslon does not apply to violations or the enforcement of these matters whlch appear In the public records at Pollcy Date. Thls exclusion does not Iimlt the zonlng coverage described in Items 12 and 13 of Covered Tltle Risks. The rlght to take the land by condemning it, unless: (a) a notice of exercislng the right appears in the public records on the Pollcy Date (b) the taking happened prior to the Pollcy Date and Is binding on you if you bought the land without knowing of the taking Title Risks: (a) that are created, allowed, or agreed to by you (b) that are known to you, but not to us, on the Pollcy Date -- unless they appeared in the public records (c) that result in no loss to you (d) that first affect your title afier the Policy Date ~- this does not llmlt the labor and material lien coverage In Item 8 of Covered Tltle Risks ' Failure to pay value for your title. Lack of a right: (a) to any land outside the area specifically described and referred to In Item 3 of Schedule A 0R (b) in streets, alleys, or waterways that touch your land Thls exclusion does not llmlt the access coverage In Item 5 of Covered Tltle Risks. 11. EAGLE PROTECTION OWNER'S POLICY CLTA HOMEOWNER'S POLICY OF TITLE INSURANCE - 1998 ALTA HOMEOWNER'S POLICY OF TITLE INSURANCE - 1998 Covered Risks 14 (Subdivision Law Violation). 15 (Building Permit). 16 (Zoning) and 18 (Encroachment of boundary walls or fences) are subject to Deductible Amounts and Maximum Dollar Limits of Liability Commitment No.: NCS-779586-DC72 Page Number: 17 Form No. 1068-2 ALTA Plain Language Commitment EXCLUSIONS In addition to the Exceptions in Schedule B, you are not insured against loss, costs, attorneys‘ fees, and expenses resulting from: 1. Governmental police power, and the existence or violation of any law or government regulation. This Includes ordinances, laws and regulations concerning: a. bulldlng b. zoning c. land use d. improvements on the land e. land division f. environmental protection This exclusion does not apply to violations or the enforcement of these matters if notice of the violation or enforcement appears in the Public Records at the Policy Date. This exclusion does not limit the coverage described in Covered Risk 14, 15, 16, 17 or 24. 2. The failure of Your existing structures, or any part of them, to be constructed in accordance with appllcable building codes. This Exclusion does not apply to vioiations of building codes if notice of the violation appears In the Public Records at the Policy Date. 3. The right to take the Land by condemning it, unless: a. a notice of exerclsing the right appears in the Public Records at the Policy Date; or b. the taking happened before the Policy Date and is binding on You if You bought the Land without Knowing of the taking. 4. Risks: a. that are created, allowed, or agreed to by You, whether or not they appear in the Public Records; b. that are Known to You at the Policy Date, but not to Us, unless they appear In the Publlc Records at the Policy Date; c. that result in no loss to You; or d. that first occur after the Policy Date - this does not limit the coverage described in Covered Risk 7, 8.d, 22, 23, 24 or 25. 5. Failure to pay value for Your Tltle. 6. Lack of a right: a. to any Land outside the area specifically described and referred to in paragraph 3 of Schedule A; and b. in streets, alleys, or waterways that touch the Land. This exclusion does not limit the coverage described in Covered Risk 11 or 18. 12. THIRD GENERATION EAGLE LOAN poucv AMERICAN LAND TITLE ASSOCIATION EXPANDED COVERAGE RESIDENTIAL LOAN POLICY (1101/03) - EXCLUSIONS FROM COVERAGE The followlng matters are expressly excluded from the coverage of this policy and the Company wlll not pay loss or damage, costs, attorneys’ fees or expenses whlch arise by reason of: 1. (a) Any law, ordinance, permit, or governmental regulation (including those relating to bullding and zonlng) restricting, regulating, prohlblting, or relating to (i) the occupancy, use, or enjoyment of the Land; (ll) the character, dimensions, or location of any Improvement erected on the Land; (ili) the subdivision of land; or(lv) environmental protection; or the effect of any violation of these laws, ordinances, or governmental regulations. Thls Exclusion 1(a) does not modify or limit the coverage provided under Covered Risk 5, 6, 13(c), 13(d), 14 or 16. (b)Any governmental police power. This Exclusion 1(b) does not modify or llmlt the coverage provided under Covered Risk 5, 6, 13(c), 13(d), 14 or 16. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8. Defects, llens, encumbrances, adverse clalms, or other matters (a) created, suffered, assumed or agreed to by the Insured Claimant; (b) not Known to the Company, not recorded in the Public Records at Date of Pollcy, but Known to the Insured Claimant and not disclosed In writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under thls pollcy; (c) resultlng ln no loss or damage to the Insured Claimant; (d) attaching or created subsequent to Date of Policy (however, this does not modify or llmit the coverage provided under Covered Risk 11, 16, 17, 18, 19, 20, 21, 22, 23, 24, 27 or 28); or (e) resultlng In loss or damage whlch would not have been sustained If the Insured Claimant had paid value for the Insured Mortgage. 4. Unenforceabllity of the lien of the Insured Mortgage because of the inability or failure of an Insured to comply with applicable doing business laws of the state where the Land ls situated. 5. Invalidity or unenforceability in whole or In part of the lien of the Insured Mortgage that arises out of the transaction evidenced by the Insured Mortgage and Is based upon usury, or any consumer credit protection or truth-In-Iendlng law. Thls Exclusion does not modify or limit the coverage provided In Covered Risk 26. 6. Any claim of invalidity, unenforceability or lack of priority of the llen of the Insured Mortgage as to Advances or modifications made after the Insured has Knowledge that the vestee shown In Schedule A ls no longer the owner of the estate or interest covered by this policy. This Exclusion does not modify or limlt the coverage provided in Covered Risk 11. 7. Any lien on the Tltle for real estate taxes or assessments imposed by governmental authority and created or attaching subsequent to Date of Policy. This Exclusion does not modify or llmlt the coverage provided In Covered Rlsk 11(b) or 25. 8. "me failure of the residential structure, or any portion of It, to have been constructed before, on or after Date of Policy in accordance wlth appllcable bulldlng codes. Thls Exclusion does not modify or limit the coverage provided in Covered Risk 5 or: 6. 13. AMERICAN LAND TITLE ASSOCIATION LOAN POLICY - 2006 EXCLUSIONS FROM COVERAGE The followlng matters are expressly excluded from the coverage of thls pollcy, and the Company will not pay loss or damage, costs, attorneys' fees, or Commitment No.: NCS-779586-DC72Form No. 1068-2 Page Number: 18ALTA Plain Language Commitment expenses that arise by reason of: 1. (a) Any law, ordinance, permit, or governmental regulation (Including those relating to building and zonlng) restricting, regulating, prohibiting, or relating to - (l) the occupancy, use, or enjoyment of the Land; (ii) the character, dimensions, or location of any Improvement erected on the Land; (Ill) the subdivlsion of land; or (Iv) environmental protection; or the effect of any violation of these laws, ordinances, or governmental regulations. Thls Exclusion 1(a) does not modify or llmit the coverage provided under Covered Risk 5. (b) Any governmental pollce power. Thls Exclusion 1(b) does not modify or llmit the coverage provided under Covered Rlsk 6. Rights of eminent domain. This Exclusion does not modlfy or limit the coverage provided under Covered Risk 7 or 8. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed, or agreed to by the Insured Claimant; (b) not Known to the Company, not recorded In the Public Records at Date of Pollcy, but Known to the Insured Claimant and not dlsclosed In writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under thls policy; (c) resulting in no loss or damage to the Insured Claimant; (d) attaching or created subsequent to Date of Policy (however, this does not modify or limlt the coverage provided under Covered Rlsk 11, 13, or 14); or (e) resulting in loss or damage that would not have been sustalned lf the Insured Claimant had pald value for the Insured Mortgage. 4. Unenforceability of the lien of the Insured Montgage because of the inability or failure of an Insured to comply with applicable doing- business laws of the state where the Land is sltuated. 5. Invalldlty or unenforceabllity In whole or in pal”: of the lien of the Insured Mortgage that arises out of the transaction evldenced by the Insured Mortgage and is based upon usury or any consumer credlt protection or truth-in-lendlng law. 6. Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar credltors‘ rights laws, that the transaction creating the lien of the Insured Mortgage, is (a) a fraudulent conveyance or fraudulent transfer, or (b) a preferential transfer for any reason not stated In Covered Risk 13(b) of this policy. 7. Any lien on the Tltle for real estate taxes or assessments Imposed by governmental authority and created or attachlng between Date of Pollcy and the date of recordlng of the Insured Mortgage in the Public Records. This Exclusion dues not modify or limit the coverage provided under Covered Risk 11(b). 14. AMERICAN LAND TITLE ASSOCIATION LOAN POLICY - 2006 WITH REGIONAL EXCEPTIONS When the American Land Tltle Association policy ls used as a Standard Coverage Policy and not as an Extended Coverage Policy the exclusions set forth in paragraph 13 above are used and the following exceptions to coverage appear In the pollcy. SCHEDULE B This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: 1. (a) Taxes or assessments that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Publlc Records; (b) proceedings by a public agency that may result In taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the Public Records. Any facts, rights, Interests, or claims that are not shown by the Publlc Records but that could be ascertained by an Inspection of the Land or2. that may be asserted by persons in possession of the Land. I 3. Easements, liens or encumbrances, or clalms thereof, not shown by the Public Records. 4. Any encroachment, encumbrance, vlolatlon, variation, or adverse circumstance affecting the Tltle that would be disclosed by an accurate and complete land survey of the Land and not shown by the Publlc Records. 5. (a) Unpatented mlning clalms; (b) reservations or exceptions In patents or ln Acts authorizing the issuance thereof; (c) water rights, claims or tltle to water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records. 15. AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY - 2006 EXCLUSIONS FROM COVERAGE The followlng matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: 1. (a) Any law, ordinance, permit, or governmental regulatlon (including those relating to building and zoning) restricting, regulating, prohlblting, or relating to (I) the occupancy, use, or enjoyment of the Land; (ii) the character, dimensions, or locatlon of any improvement erected on the Land; (iii) the subdivision of land; 0r (iv) environmental protection;or the effect of any violation of these laws, ordlnances, or governmental regulations. Thls Exclusion 1(a) does not modlfy or llmlt the cgverage provided under Covered Risk 5. Commitment No.: NCS-779586-DC72Form No. 1068-2 Page Number: 19ALTA Plaln Language Commitment (b) Any governmental poiice power. This Exclusion 1(b) does not modify or limit the coverage provided under Covered Rlsk 6. Rights of emlnent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed, or agreed to by the Insured Claimant; (b) not Known to the Company, not recorded in the Public Records at Date of Pollcy, but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under thls pollcy; (c) resultlng ln no loss or damage to the Insured Claimant; (d) attachlng or created subsequent to Date of Pollcy (however, thls does not modify or limit the coverage provided under Covered Risks 9 and 10); or (e) resultlng In loss or damage that would not have been sustained if the Insured Claimant had pald value for the Tltle. Any clalm, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors rights laws, that the transaction vesting the ‘fltle as shown In Schedule A, is (a) a fraudulent conveyance or fraudulent transfer; or (b) a preferential transfer for any reason not stated In Covered Rlsk 9 of thls pollcy. Any lien on the Tltle for real estate taxes or assessments Imposed by governmental authority and created or attaching between Date of Policy and the date of recording of the deed or other instrument of transfer In the Publlc Records that vests Tltle as shown In Schedule A. 16. AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY - 2006 WITH REGIONAL EXCEPTIONS When the Amerlcan Land Tltle Assoclation pollcy ls used as a Standard Coverage Policy and not as an Extended Coverage Policy the excluslons set forth in paragraph 15 above are used and the following exceptions to coverage appear In the policy. SCHEDULE B Thls policy does not insure agalnst loss or damage (and the Company will not pay costs, attorneys' fees or expenses) whlch arise by reason of: (a) Taxes or assessments that are not shown as existing Hens by the records of any taxing authority that Ievles taxes or assessments on real property or by the Public Records; (b) proceedings by a public agency that may result In taxes or assessments, or notlces of such proceedings, whether or not shown by the records of such agency or by the Public Records. Any facts, rights, interests, or clalms that are not shown by the Publlc Records but that could be ascertalned by an inspection of the Land or that may be asserted by persons In possesslon of the Land. Easements, Ilens or encumbrances, or claims thereof, not shown by the Public Records. Any encroachment, encumbrance, violation, variation, or adverse clrcumstance affecting the Tltle that would be disclosed by an accurate and complete land survey of the Land and not shown by the Publlc Records. (a) Unpatented mlning claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rlghts, claims or title to water, whether or not the matters excepted under (_a), (b), or (c) are shown by the Public Records. Exhibit B Allison Law From: Allison Law Sent: Friday, June 08, 2018 12:44 PM To: 'bgarrett@hanvan.com' Cc: Daniel Goodkin (dgoodkin@goodkinlynch.com); 'ahernes@hanvan.com' Subject: J. Cyril Johnson Family Limited Partnership v. Merlone Geier IX, LLC, et al. / Extension of Time to Respond to Complaint Bill, Pleasure speaking with you this afternoon. As l mentioned over the phone, we are representing the Federal Realty parties as identified in the complaint: San Antonio Center ||, LLC; FR San Antonio Center, LLC; Federal Realty Partners LP; and Federal Realty Partners, Inc. This email confirms that you have kindly granted us a two-week extension of time to respond to the complaint, to and includingJuly 2, 2018. Thank you and we look forward to working with you. Best, Allison J. Law, Esq. GOODKIN & LYNCH LLP 1800 Century Park East, 10‘“ Floor Los Angeles. CA 90067 (310) 552-3322 ext. 2020 (310) 943-1 589 fax alaw@goodkinlynch.com Internet Email Confidentiality: Privileged/Confidential Information may be contained in this message. If you are not the addressee indicated in this message (or responsible for delivery of the message to such person). you may not copy or deliver this message to anyone. ln such case, you should destroy this message and kindly notify the sender by reply email. Please advise immediately if you or your employer does not consent to Internet email for messages ofthis kind. Opinions, conclusions and other information in this Message that do not relate to the official business of my firm shall be understood as neither given nor endorsed by it. Exhibit C Allison Law From: Bill Garrett Sent: Wednesday, June 27, 2018 3:34 PM To: Allison Law Cc: Daniel Goodkin; Alina Hernes Subject: RE: Letter dated 6-22-18 Importance: High Allison-Thank you for following up. Yes, an extension t0 & including July 9, 2018 for the Federal-related defendants t0 respond to the Complaint is fine. I Will have to get back to you & Dan on a date to meet & confer regarding your planned demurrer & motion to strike. Very truly yours, “BLLLGMVett William R. Garrett, Esq. Hanna & Van Atta 525 University Avenue, Suite 600 Palo Alto, CA 94301 Telephone: 650.321.5700 Facsimile: 650.321.5639 Email: bgarrettgaghanvancom This email message may contain confidential, privileged information intended soIe/yfor the addressee. Please do not read, copy, or disseminate it unless you are the addressee. lfyou have received this email message in error, please call us (collect) at 650.321.5700 and ask to speak with the message sender. Also, we would appreciate yourforwarding the message back to us and deleting itfrom your system. Thank you. From: Allison Law [mai|to:alaw@goodkinlynch.com] Sent: Wednesday, June 27, 2018 3:08 PM To: Bill Garrett Cc: Daniel Goodkin Subject: RE: Letter dated 6-22-18 Mr. Garrett, We are following up on our caH yesterday afternoon wherein you granted us a second extension of time to and including July 9, 2018 to respond to the complaint so that we have ample time to meet and confer. Do you want to suggest some dates and times for us to set up a call? Thank you, Allison J: Law, Esq,‘ GOODKlN & LYNCH LLP 1800 Century Park East, 10‘“ Floor Los Angeles, CA 90067 (310) 552-3322 ext. 2020 (310) 943-1589 fax alaw@goodkinlynch.com Internet Email Confidentiality: Privileged/Confidential Information may be contained in this message. If you are not the addressee indicated in this message (or responsible for delivery of the message to such person). you may not copy or deliver this message to anyone. ln such case. you should destroy this message and kindly notify the sender by reply email. Please advise immediately if you or your employer does not consent to Internet email for messages of this kind. Opinions, conclusions and other information in this Message that do not relate to the official business of my firm shall be understood as neither given nor endorsed by it. From: Sharon Yeou Sent: Friday, June 22, 2018 1:13 PM To: bgarrett@hanvan.com Cc: psheridan@g|aserweil.com; aalsarraf@glaserweil.com; Allison Law ; Daniel Goodkin Subject: Letter dated 6-22-18 Dear Mr. Garrett, Attached please find letter of today’s date. Hard copy to follow via overnight mail. Sharon Yeou, MPH GOODKIN & LYNCH LLP 1800 Century Park East, 10‘“ Floor Los Angeles, CA 90067 (310) 552-3322 (310) 943-1589 fax £ Please consider the environment before printing this e-mail IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any matters addressed herein. Internet Email Confidentiality: Privileged/Confidential Information may be contained in this message. If you are not the addressee indicated in this message (or responsible for delivery of the message to such person), you may not copy or deliver this message to anyone. In such case, you should destroy this message and kindly notify the sender by reply email. Please advise immediately if you or your employer does not consent to Internet email for messages of this kind. Opinions, conclusions and other information in this Message that do not relate to the officia! business of my firm shall be understood as neither given nor endorsed by it. Exhibit D Allison Law From: Amin Al-Sarraf Sent: Monday, July 02, 2018 4:36 PM To: Bill Garrett Cc: Peter Sheridan; Daniel Goodkin; Allison Law Subject: J. Cyril Johnson Family Limited Partnership v. Merlone Geier IX, LLC, et al. Bill, Per our telephone conversation this afternoon, this email confirms that the deadline for each 0fthe entities listed below to file responsive pleadings to the plaintiff’s complaint in the above-referenced action has been extended to July 13, 2018, pursuant to your stipulation: Merlone Geier IX, LLC MGP IX REIT, LLC MGP IX SAC II, LLC MGP IX SAC H Properties, LLC MGP IX Properties, LLC City of Mountain View San Antonio Center ll, LLC Federal Realty Partners, Inc. Federal Realty Partners L.P. FR San Antonio Center, LLC As | mentioned to you, our firm will be representing the City of Mountain View. lhave also copied here counsel for the Federal Realty-related entities. We look forward to engaging in a collective meet and confer discussion regarding the anticipated demurrers and motions to strike that each of the above entities intend to file. We propose to have that discussion either on Friday, July 6 at 12pm, or Thursday, July 5 at 12pm. Please let us know if either of these times works for you and, if not, please propose other times this week. Finally, the Court has identified the following as the earliest available hearing dates for the anticipated demurrers and motions to strike: November 13, 15 and 20. In the interest of moving this case forward as expeditiously as possible, we propose reserving (sometime this week) either November 13 or 15. If those dates do not work for counsel, please let me know. Regards, Amin GlaserWeil Amin Al-Sarraf | Attorney 333 South Hope Street, Suite 2610, Los Angeles, CA 90071 Main: 310.553.3000 I Direct: 310.282.6286 | Fax: 310.785.3586 E-Mail: aalsarraf@glaserweil.com l www.glaserwei|.com This message and any attached documents may contain information from the law firm of Glaser Weil Fink Howard Avchen & Shapiro LLP that is confidential and/or privileged. If you are not the intended recipient, you may not read, copy, distribute or use this 1 information. If you have received this transmission in error, please notify the sender immediately by reply e-mail and then delete this message.