DeclarationCal. Super. - 6th Dist.March 2, 202121 CV378991 Santa Clara - Civil M. Dominguez 1 Clifford R. Homer, Esq., State Bar N0. 154353 Michael G. Kline, Esq., State Bar N0. 212758 Electronically Filed 2 g(gléNgR {iAW gRgggé P-C- by Superior Court of CA, . roa way, u1 e 3 Walnut Creek, California 94596 czlflr/‘ztxlggzszaflgflpanza’ chomer@homerlawgroup.com O _ _ ' . 4 mkline@hornerlawgroup.com Rev'ewed By- M- Dom'"9uez Telephone: (925) 943-6570 Case #21 CV378991 5 Facsimile: (925) 943-6888 Envelope: 8126461 6 Attorneys for PlaintiffFREDERICK HART JR. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA CLARA 10 11 FREDERICK HART JR., an individual, Case No. 21CV378991 12 Plaintiff, DECLARATION OF MICHAEL G. KLINE, ESQ. IN SUPPORT OF MOTION 13 vs. FOR LEAVE TO AMEND lst AMENDED COMPLAINT 14 MICHAEL HART, an individual; FRANCES HART, an individual; TRACY HART- Notice ofMotion & Motion, Memorandum 0f 15 DEGREGORIO’ an individual; GAIL HART, Points and Authorities, Declaration 0f an individual, and DOES 1 through 50, Paymon Hlfal and [Proposed] orderfiled 16 . . concurrently herewzth mcluswe, 17 Hearing Date: Defendants. Time: 18 Dept: Judge: 1 9 Action Filed: March 2, 2021 20 Trial Date: N/A 2 1 22 23 I, Michael G. Kline, declare as follows: 24 1. I am an attorney at law duly admitted t0 practice before the courts 0f the State of 25 California. I am a Senior Associate Attorney With HORNER LAW GROUP, PC (“HLG”), 26 attorneys 0f record for PlaintiffFREDERICK HART JR. (“Plaintiff”) Within the above-captioned 27 matter. Iknow the following facts to be true 0fmy own knowledge, and if called to testify, I could 28 competently do so. H°R§£§§Qxffiggfikc DECLARATION OF MICHAEL G. KLINE, ESQ. IN SUPPORT OFWMY“ MOTION FOR LEAVE T0 AMEND lsT AMENDED COMPLAINT 1 2. Prior t0 drafting and filing Plaintiff’s 1“ Amended Complaint (the “1AC”) in this 2 matter, I reviewed the Request for Judicial Notice (the “RJN”) filed by Defendants MICHAEL 3 HART (“Michael”), TRACY HART-DEGREGORIO (“Tracy”) and GAIL HART (“Gail”) and 4 FRANCES HART (“Frances”) in support 0f their Demurrer to Plaintiffs’ Complaint, and all 5 exhibits attached thereto. 6 3. Included within the RJN as Exhibit “G” was a document entitled “Waiver of 7 Accounting and Petition for Final Distribution” (the “Petition”) filed with Probate Court within the 8 matter entitled Estate 0f Ruth Hart (the “Probate Case”). Upon reviewing the contents 0f the 9 Petition, Ibecame aware, for the first time, that prior to January 7, 2003, Gail and Tracy “took the 10 following action without court supervision and without sending notice of the proposed actionz” 11 They agreed t0 sell the [property at issue in this matter (the “Property”)] for $337,500 to their brother and his wife, Michael and Frances Hart, at a loss t0 the 12 Estate 0f $82,500.00. Said sale is scheduled t0 close on or before January 27, 2003. [Gail and Tracy] did not send notice ofproposed action because they alone 13 were entitled to such notice. .. 14 At the time of the hearing on this Petition, the Estate Will consist of $342,500.00, 0fwhich approximately $335,000.00 will be in cash. 1 5 A true and correct copy of the Petition attached hereto as Exhibit A. 1 6 17 4. Included Within the RJN as Exhibit “H” was a document entitled “Judgment ofFinal 18 Distribution 0n Waiver of Accounting” (the “Judgment”) Within the Probate Case. A true and 19 correct copy 0f that Judgment is attached hereto as Exhibit B. Upon reviewing the Judgment, I 20 also became aware, for the first time, that at the February 10, 2003 hearing 0n the Petition that was 21 held in the Probate Case, the Court found that Gail and Tracy “have in their possession belonging 22 to [Plaintiff’s mother’s] estate, a balance [in] the approximate value of $343,495.24, of which 23 approximately $335,995.24 is cash,” and that both were awarded 50% 0f that amount from the 24 estate. 25 5. On November 10, 2021, this Court issued its 20-page ruling partially granting 26 Defendants’ Demurrer t0 Plaintiff’ s original Complaint, with leave to amend. A true and correct 27 copy of that ruling is attached hereto as Exhibit C. Therein, the Court held: 28 Defendants correctly argue that the probate court's order establishes that Ruth M. Hart died with a Will, contradicting the allegation in the complaint that Ruth Hart _ 2 _ Hogifififixffiggf’m' DECLARATION OF MICHAEL G. KLINE, ESQ. IN SUPPORT OFWMY“ MOTION FOR LEAVE T0 AMEND lsT AMENDED COMPLAINT 1 died intestate. . Defendants are also correct that the probate court's order indicates that only Tracy and Gail were the beneficiaries 0f, and received any inheritance 2 from, Ruth Hart's estate. Thus, plaintiff, Michael, Tracy, and Gail were not each awarded an undivided one-quarter share 0r interest in the property as alleged in 3 the complaint In fact, n0 one inherited an interest in the property. .. Accordingly, plaintiffs contrary allegations in his complaint-that he received an 4 interest in the property by inheritance from Ruth Hart must be disregarded. .. 5 6. Also within Exhibit C, the Court went 0n t0 hold that the written agreement between 6 Plaintiff, Michael and Frances recorded against title to the Property in 2018 (the “Equity 7 Agreement”) could not be enforced as an agreement to transfer a 25% ownership interest in the 8 Property to Plaintiff (as alleged Within the original Complaint at paragraph 12) because it “does 9 not include a provision by Which [P]1aintiff would acquire a one-quarter interest in the property.” 10 7. Shortly thereafter, I spoke with Plaintiff over the phone to g0 over various portions 11 of the holdings Within Exhibit C, and the amendments that needed t0 be made within the next 10 12 days. During that conversation, Plaintiff expressed dismay in discovering, for the first time, that 13 the Equity Agreement could not be relied upon to protect his right t0 “inherit” a 25% ownership 14 interest the Property from his mother, as had been advised by his prior counsel and promised by 15 his siblings over the course of the last two decades. 16 8. Although none of my discussions with Plaintiff included the topic of Gail and 17 Tracy’s sale of the Property t0 Michael and Frances, at the time I drafted and filed Plaintiff’ s lAC 18 on November 19, 2021, I was under the mistaken belief that they had. Based 0n that incorrect 19 assumption and my review of Exhibits A and B hereto, I believed that Plaintiff had informed me 20 that his in-person meeting with Michael, Gail and Tracy (collectively, the “Hart Siblings”) in 2002 21 included a discussion 0f the aforementioned sale and, in particular, Plaintiff s agreement t0 refrain 22 from interfering with it in exchange for the various forms of consideration alleged within paragraph 23 12 and 13 ofthe lAC. 24 9. On November 19, 2021, I served Defendants’ counsel With a copy 0fthe lAC along 25 with meet and confer correspondence attached hereto as Exhibit D. Therein, I asked counsel to 26 stipulate to the filing of a 2nd Amended Complaint to avoid the time and expense associated with 27 filing a Motion With the Court for leave t0 Amend. Unfortunately, the lAC contained allegations 28 that Plaintiffwas aware ofand consented t0 the sale ofthe Property from Gail and Tracy to Michael -3- HORNERLAW GROUP’P‘C' DECLARATION OF MICHAEL G. KLINE, ESQ. IN SUPPORT OF800 S. Broadway, Suite 200WMY“ MOTION FOR LEAVE T0 AMEND lsT AMENDED COMPLAINT 1 and Frances, which I would not discover were incorrect until after the IAC was filed and served. 2 10. Shortly thereafter, I held a discussion With Plaintiff about the contents of our lAC 3 and our offer to dismiss Gail and Tracy and limit the causes of action within a 2nd Amended 4 Complaint. As soon as I mentioned that the Property had been sold by Gail and Tracy t0 Michael 5 and Frances in 2003, Plaintiff expressed shock, immediately confirming that this was the first time 6 he had ever learned that the sale had taken place. 7 11. On November 30, 2021, Defendants’ counsel sent correspondence t0 me, a true and 8 correct copy of which is attached hereto as Exhibit E. Therein, Defendants’ counsel refused t0 9 stipulate to the filing of a second amended complaint based 0n What he considered to be substantive 10 deficiencies rendering every cause of action therein susceptible t0 demurrer. His correspondence 11 concluded With a promise t0 file a demurrer to the lAC prior t0 substantivelv meeting and 12 conferring in a good faith effort t0 resolve disputes related thereto: 13 I am also in the process 0f preparing a meet and confer letter about [Plaintiff’ s] 1 4 First Amended Complaint, which is clearly no better than the original one, and l will definitelv be filing another Demurrer 0n that version, as well, after we meet 15 and confer. 16 12. I did not receive the promised follow up letter from Defendants’ counsel until 17 December 18, 2021, wherein my office was falsely accused of ignoring his prior correspondence, 18 the Court’s ruling on Demurrer was mischaracterized, and more threats 0f unassailable demurrers 19 were set forth in writing. A true and correct copy of that correspondence is attached hereto as 20 Exhibit F. 21 13. Shortly thereafter, I went on an extended, pre-planned vacation for the holidays, 22 after which I remained out of the office with illness. Upon my return, I left a voicemail message 23 and sent follow up email correspondence t0 opposing counsel in my continuing effort t0 avoid the 24 filing of Plaintiff‘s Motion t0 Amend. A true and correct copy 0f my January 10, 2022 email t0 25 Defendants’ counsel confirming the foregoing is attached hereto as Exhibit G. 26 14. It was not until January 12, 2022 that I was finally able to speak with Defendants’ 27 counsel over the phone regarding the substantive content 0f his meet and confer letters and 28 Plaintiff’s revised proposal to dismiss Gail and Tracy in exchange for Defendants’ agreement to -4- HORNERLAW GROUP’P‘C' DECLARATION OF MICHAEL G. KLINE, ESQ. IN SUPPORT OF800 S. Broadway, Suite 200WMY“ MOTION FOR LEAVE T0 AMEND lsT AMENDED COMPLAINT 1 waive costs and stipulate to the filing 0f a limited Second Amended Complaint that only alleged 2 causes of action against Michael and Frances for breach of contract and quiet title. During the call, 3 Defendants’ counsel confirmed that he would be advising his clients against agreeing to Plaintiff s 4 proposal based 0n his continued belief that any revised 2nd Amended Complaint (a copy of which 5 he had not yet seen) was unquestionably subject t0 demurrer, With prejudice. A true and correct 6 copy ofmy written meet and confer correspondence t0 opposing counsel confirming the foregoing 7 is attached hereto as Exhibit H. 8 15. I did not receive any further communication from Defendants’ counsel until 5:30 9 p.m. on the evening prior t0 Defendants’ January 20th responsive pleading deadline, wherein he 10 asked for an explanation regarding why Gail and Tracy’s proposed dismissal from this matter was 11 not offered With prejudice, claimed (once again) that his office had not received electronic service 12 of Plaintiff’s lAC, and asked for Plaintiff’s agreement t0 continue the January 20th responsive 13 pleading deadline to January 24th. A true and correct copy 0f said email is attached hereto as 14 Exhibit I. 15 16. I responded less than 10 minutes later Within an email to opposing counsel, a true 16 and correct copy 0f which is attached hereto as Exhibit J. Therein, I wrote: 17 While we continue t0 disagree regarding electronic service issues in this case, I would rather not waste time engaging in further debate on the topic. To ensure 18 there is no dispute, we will stipulate that the deadline t0 file a responsive pleading is January 24th, regardless 0fWhether electronic service was proper (which we 19 believe it was) or not. 20 That said, Ifwe are unable t0 reach an agreement 0n the filing of a revised second amended complaint, we will be filing a motion t0 amend on or before the 24th. 21 You therefore d0 not need t0 spend time drafting a responsive pleading t0 the Ist Amended Complaint. 22 As far as our proposal is concerned, please let me know if Defendants are offering 23 t0 waive costs and fees, and stipulate t0 the filing of a 2nd Amended Complaint against Michael and Frances only for breach of contract and quiet title, if Plaintiff 24 dismisses Gail and Tracy from the pending First Amended Complaint with prejudice prior t0 the filing of that 2nd Amended Complaint. It so, I will bring 25 vour counteroffer t0 mv client for his consideration. 26 17. Defendants’ counsel never responded t0 the foregoing email. Instead, my office was 9927 electronically served With a “Meet and Confer Declaration Re Demurrer to Amended Complaint 28 at 6:55 p.m. on Sunday, January 23. A true and correct copy 0f the email correspondence we -5- HORNERLAW GROUP’P‘C' DECLARATION OF MICHAEL G. KLINE, ESQ. IN SUPPORT OF800 S. Broadway, Suite 200WMY“ MOTION FOR LEAVE T0 AMEND lsT AMENDED COMPLAINT 1 received confirming the foregoing is attached hereto as Exhibit K. 2 18. On the date I signed this declaration, I reviewed the Court’s online docket and 3 confirmed that neither counsel’s declaration nor the demurrer t0 Plaintiff’s lAC are evidenced 4 therein, and my office was not served with anything other than the aforementioned declaration 5 since we received it yesterday evening. A true and correct copy of the court’s online docket for this 6 matter as 0f 12:55 pm. 0n January 24, 2022 is attached hereto as Exhibit L. 7 19. A true and correct copy of a redlined version 0f the [Proposed] Second Amended 8 Complaint evidencing all proposed amendments to the operative lAC 0n file With this Court is 9 attached hereto as Exhibit M. 10 I declare under penalty of perjury under the laws 0f the State 0f California that the 11 foregoing is true and correct. Executed 0n this 24th day 0f January 2022 at Walnut Creek, 12 California. 13 14 15 By: 16 “Michael G. Kline, Esq. 17 18 19 20 21 22 23 24 25 26 27 28 -6- HORNERLAW GROUP’P‘C' DECLARATION OF MICHAEL G. KLINE, ESQ. IN SUPPORT OF800 S. Broadway, Suite 200WMY“ MOTION FOR LEAVE T0 AMEND lsT AMENDED COMPLAINT 10 11 12 EXHIBIT A 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNERLAW GROUP, P.C. 800 S. Broadway, Suite 200 Walnut Creek, California 9596 La.) (x) 4:. \OOO\IO\M 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ,~:.n‘m_.~.‘,\.~'.« '..‘}-.n - x. l JANE BRINDLE MILLER ' ‘ “'7 " " Attorney at Law State BarNo. 87868 N ‘ i U ' 711 Colorado Avenue JO J”. 7.3 [m 8- 5 I Palo Alto, CA 94303 Telephone: (650)-321-6011 Facsimile: (650) 617-0429 jane@janemillerlaw.com Attorney for Petitioners GAIL A. HART and . TRACY T. HART-DEGREGORIO SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA Estate of ) Case No. 1-02-PR~150962 ) RUTH M. HART, also known ) Date: February 10, 2003 as RUTH MARGARET HART, ) Time: 9:00 A.M. ) Dept: 13 Decadent. ) . ) WAIVER OF ACCOUNTING AND PETITION FOR FINAL DISTRIBUTION AND FOR ATTORNEY’S FEES FOR ORDINARY SERVICES AND REIMBURSEMENT OF COSTS Petitioners, GAILA. HART andTRACY T. HART-DEGRBGORIO, the Administrators with the Will annexed ofRUTH M. HART, allege: 1 . Decadent,RUTH M. HART, died testate on February 16, 2002, in Santa Clara County, California, and was domiciled in that county at her death. 2. Decedent’s Will of September 2, 1986 was admitted to probate by order of this court on April 4, 2002. Petitioners qualified as Administrators with Will annexed, and Letters of Administration were issued to Petitioners on April 4, 2002. At all times since then, Petitioners have been and now are the Administrators with the Will annexed. 3. On April 4, 2002, Petitioners were granted authority by Order of this Court to n I - 1 - ESTATE OF RUTH M. HART, DECEASED - Case No. 1-02-PR-250962 WAIVER OF ACCOUNTING & PETITION FOR FINAL DISTRIBUTION AND FOR AT'I URNEY’S FEES FOR ORDINARY SERVIL ES & REIMBURSEMENT OF COSTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 administer the estate without Court supervision under the Independent Administration. of Estates Act_ This authority has not been revoked. 4_ Petitioners took the following action without court supervision and without sending notice of proposed action: a._ They agreed to sail the real property located at 760 Emily Drive, Mountain View, California for S337„500_ DO to their brother and his wife, Michael and Frances Hart, at a. loss to the Estate of $82,500.00_ Said sale is scheduled to close on or before January 27, 2003. Petitioners did not send notice of proposed action because they alone were entitled to such notice. 5_ Petitioners have performed all required duties as Adrnini.'strator of the estate of decedent_ All costs of a.dministcation incurred to date, including costs of publication, have been paid. The estate is in a condition to be closed_ 6. More than four months have elapsed since the issuance of Letters_ The time for filing and presenting creditor's claims expired on August 4, 2002_ All known debts outstanding at the time of Decedent's death have either been paid or will be paid prior to the hearing on this petition. 7. Notice to the Director of Health Services is not required under Probate Code Section 9201, because the Decedent did not receive and was not the surviving spouse of a person who received any Medi-Cal benefits. 8. Petitioners have made all reasonable efforts to ascertain all creditors of the Decedent_ In addition, Petitioners have paid all known or reasonably ascertainable creditors_ 9. To date, no creditor's claims were presented to Petitioners or fi led with the Court. 10. An Inventory and Appraisal of the estate is filed concurrently with this Petition, showing the value of the estate to be $428,800.00. Petitioners allege that the inventory lists all the assets of Decedents estate that have come to Petitioners' knowledge or into their possession. 11 . No California estate tax is due because no federal estate tax return has been or will be filed in which a state death tax credit will apply for California property. No federal estate taxes are due_ - 2 - ESTATE. OF RUTH NC HART, DECEASED - Case No_ 1 -02-PR -150962 WAIVER OF A.CCC>UT. ,ITTF•40 &.-- pE.TrrioN FOR FINAL. DISTRIBUTION AND FOR ATTORNEY'S FFFS FOR ORDINARY SERVICES & REI1V1331URSENIENT OF COSTS 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12. Any California or federal income taxes due and payable by the estate have been paid. There are no nonresident legatees or devisees. Accordingly, no certificate of the California Franchise Tax Board is required. 13. There are no personal property taxes due and payable by the estate. 14. At the time of the hearing on this Petition, the Estate will consist of $342,500.00, of which approximately $335,000.00 will be in cash. Petitioners have paid from their personal funds most of the expenses of the Estate. Petitioners, the only persons entitled to distribution under the estate, waive an account by Petitioners and the waivers are being filed concurrently with this petition. 15. The estate consists entirely of the separate property of Decedent. Decedent was not married at the time of her death. 16. Petitioners are informed and believe and therefore allege that the following arc the devisees and legatees named in the Will admitted to probate by this Court on April 4, 2002, some of whom constitute the heirs of Decedent : Name Relationship Address GAIL A. HART _Age. Adult Daughter 760 Emily Drive Mountain View, CA 94043 TRACY T. HART-DEGREGORIO Adult Daughter 20395 Nikki Court Sonora, CA 95370 17. No advance distributions have been made. 18. The property of the estate, together with any other property of the Decedent not now known or discovered, should be distributed as follows: a. Distributive Share of GAIL A. HART: To GAIL A. HART, the adult daughter of decedent, one half of the Estate, consisting of the following property: (1) One-half (1/2) of household and personal effects of Decedent; (2) One-half (1/2) of the cash in Account No. 2197327220 at Wells Fargo Bank, 444 Castro Street, Mountain View, California. b. Distributive Share of TRACY T. HART-DEGREGORIO: To TRACY T. - 3 - ESTATE OF RUTH M. HART, DECEASED - Case No. 1-02-PR-150962 WAIVER OF ACCOUNTING & PETITION FOR FINAL DISTRIBUTION AND FOR ATTORNEY'S FEES FOR ORDINARY SERVICES & REIMBURSEMENT OF COSTS M \DWflmM-bm 10 11 12 13 14 15 16 l7 18 19 20 21 22 23 24 25 26 27 28 HART DEGREGORIO, the adult daughter of decedent, one half of the Estate, consisting of the following property: (1) One-half (1/2) ofhousehold and personal effects of Decadent; (2) One-ha1f(1/2) of the cash in Account No. 2197327220 at Wells Fargo Bank, 444 Castro Street, Mountain View, California. 19. The property of the estate in Petitioners“ hands for distribution will consist of the following: (1) Household furniture and furnishings, jewelry, clothing and all other personal effects of Deccdcnt, appraised as of the date of death, February 16, 2002 at $7,500.00; (2) Walks Fargo Bank AccountNo. 2197327220, with an approximate balance of $335,000.00. 20. Petitioners have waived all rights to statutory compensation as Administrator of Decedent’s estate and all rights to reimbursement for costs ofthis Estate and debts of decedent paid from their personal funds. Said waivers are being filed concurrently With this petition. 21. The statutory attorney’s compensation for legal services to Petitioners and the estate is $9,926.00, computed on a fee base of $346,300.00, arrived as follows: FEE BASE Inventory and Appraisal $ 428,800.00 Less Losses on Sale: $ 82,500.00 Fee Base: $ 346,300.00 FEE COMPUTATION 4% on first $100,000: $ 4,000.00 3% of next $100,000: $ 3,000.00 2% of next $146,300.00 $ 2,926.00 TOTAL FEE: $ 9,926.00 _ 4 _ ESTATE OF RUTH M. HART, DECEASED - Case N0. 1-02-PR-150962 WAIVER OF ACCOUNTING & PETITION FOR FINAL DISTRIBUTION AND FOR AT‘I‘ORNEY’S FEES FOR ORDINARY SERVICES & REIMBURSEMENT OF COSTS \OWflamku-iNr- NI-ln-nt-It-Ir-AHHI-Iflhl However, Petitioners and their attomey agreed that the total attorneys fees would not exceed the time spent at her hourly rate of $250.00. Accordingly, PetilionerSvrequest that they be authorized to pay to JANE BRINDLE MILLER as payment in full for attorneys .fees the sum of $7,000.00, from Estate funds. 22. During the accounting period, Petitioners have not hired any agent who has a family or affiliate relationship with Petitioners. 23. No one has filed a request for special notice in this proceeding. WHEREFORE, Petitioners request this Court to order that: 1. The administration of this estate be closed without the requirement of an account; 2. All the acts and proceedings of Petitioners as Administrators bc confirmed and approved; ‘ 3. Petitioncrs be authorized to pay to JANE BRWDLE MILLER the sumpf $ 7,000.00 as statutory fees for services rendered to Petitioners and to this estate, in addition to reimbursement for any further costs advanced by her in the closing of the estate; 4. Distribution of the estate in Petitioners’ hands and any other property of decedent or the estate not now known or discovered be made to the persons entitled to it, as set forth above in Paragraph 18; and 5. Such fithher order be made as the Court considers proper. Dated: January '7 , 2003 GAIL fi. HART, Petitioner \j I ' Aliv‘ k c, m TRAa$ T. HART- DEG%GORIO, Petitioner zeéng. @[Zd/gg. BRMDL MILLER, t rney for Petitioners . - 5 ~ ‘ ESTATE OF RUTH M. HART, DECEASED - Case No. l-OZ-PR-l 50§62 WAIVER OF ACCOUNTFNG 8c PETITION FOR FINAL DISTRIBUTION AND FOR ATTORNEY’S FEES FOR ORDINARY SERVICES & REIMBURSEMENT OF COSTS \ONQGU'I-bUJN-l r-t-AHr-II-tn-IHH aggggaggggaumunwpuo VERIFICATlorfi We, GAIL A. HART and TRACY T. HART-DEGREGORIO, declare: We are the Administrators with the Will annexed ofRUTI-I M. HART, deceased. Each of us has read the foregoingWAIVEROFACCOUNTINGAND PETITIONFORFINALDISTRIBUTION AND FOR COMPENSATION FORATTORNEY’ S FEES FORORDINARY SERVICES. It is tmc ofeach ofour own knowledge éxcept for matters stated to befon information and belief, and as to those matters we each believe it to be true. We declare under penalty of perjury that the forLBgoing is hue and correct, and that this Verification was executed at Palo Alto, California, on'JmImefl 2003. Gymkha- GAILA. HART, Dcclarant TRAérfilii-I/ARHART- DEGREGOfi€%wDeclarant ES'lATE OF RUTH M HART, DECEASED- Case No l -02-PR-1 50962 WAIVER 01 ACCOUNTING 8L PETITION FOR FINAL DISTRIBUTION AND FOR ATTORNBY’S ll ZES FOR ORDINARY SERVICES & REIMBURSEMENT OF COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNERLAW GROUP, P.C. 800 S. Broadway, Suite 200 Walnut Creek, California 94596 EXHIBIT B U.) \OOOVONUI-A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2‘5 26 27 28 JANE BRINDLE MILLER State Bar No. 087868 Attorney at Law 711 Colorado Avenue Pale Alto, CA 94303 Telephone: (650) 321~6011 Facsimile: (650) 617-0429 jane@janemillerlaw.com Attorney for Administrators WWA GAIL A. HART and TRACY T. HART-DEGREGORIO E? SUPERIOR COURT OF CALEORNIA, COUNTY OF SANTA CLARA Date: Fcbruarle,2003 Time: 9:00 am. Dept: 13 ESTATE-OF ) Case No. 1-0 2-PR~150962 ) ) JUDGMENT OF FINAL RUTH M. HART, also known as ) DISTRIBUTION 0N WAIVER RUTH MARGARET HART, ) OF ACCOUNTING AND FOR ) ALLOWANCE 0F ATTORNEY’S ) FEES FOR ORDINARY SERVICES ) AND REIMBURSEMENT OF COSTS Deceased. ) ) ) J GAIL A. HART and TRACY T. HART-DEGREGORIO, as Administrators w ith the Will annexed ofRUTH M. HART, deceased, have filed their Waiver ofAccounting and Petition for Final Distribution and for Compensation for Attorney’s Fees fo r Ordinary Services and Reimbursement of Costs. The petition was heard on February 10, 2003, at 9:00 am. in Department 13 0f the above- { THOMAS C. EDWARDS, Presiding. entitled court, the Honorable The Court finds: 1. Notice of hearing of the petition has been reg ularly given as prescribcd by law. _ 1-: Estate ofRUTH M. HART - l-O2-PR-150962 JUDGMENT OF FINAL DISTRIBUTlON ON WAIVER OF ACCOU NTING & ALLOWANCE OF ATTORNEY’S FEES & REIMBURSEMENT OF CO STS \DQOUt-bUJNI-I Hn-Iv-I-tv-It-It-Ir-Iv-nh- gfigfi'fifik’afiBomqo‘m‘guNHo 2. All allegations of the petition are true. 3. RUTH M. HART died testaxe on February 16, 2002, in Santa ClaraCounty, California, and was at the time of her death domiciled in Santa Clara Cc- unty, Califomia. 4. 0n April 4, 2002, decedent’s Will dated September 2, 1986, was admitted to probate by order of this Court and GAIL A. HART and TRACY T. HART-DEGREGORIO were appointed Administrators with the Will annexed of decedent, qualifying as such on that date. Since then they have been and now arc the Administrators with the Will annexed ofRUTH M. HART. Furthermore, on April 4, 2002, GAIL A. HART andTRACY T. HART-DEGREGORIO were granted authority to administer the estate without court supervision under the Independent Administafion ofEstates Act. This authority has not been revoked. 5. Letters of Administration were issued on April 4, 2002. The time for filing or presenting creditor’s claims has expired, and the estate is now in a condition to be closed. 6. No claims were filed or presented against the estate. 7. All debts of decedent and of the estate and all expenses of administration have been paid, except closing expenses and the fees and costs ofJANE BRINDLE MILLER, attorney. 8. No federal estate tax return has been filed for the estate because the estate was not sufficient to require such a return, and no federal or California estate taxes are due. 9. Any California agd federal income taxes due and payable by the estate havc bccn paid. There are no non-resident legatees or devisees. Accordingly, no certificate ofthe California Franchise Tax Board is required. 10. There arc no personal property taxes due or payable by the estate. 11. The estimated expenses of closing the estate arc anticipated to be small, and the Administrator should be authorized to pay them fiom estate funds. 12. The estate consists entirely of decedent's separate property. 13. Distribution should be ordered as specified below. _. A; _ Estate ofRUTH M. HART- l-O2-PR-150962 JUDGMENT OF FINAL DISTRIBUTION ON WAIVER OF ACCOUNTING & ALLOWANCE OF ATTORNEY’S FEES & REEVEURSEMENT OF COSTS 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS HEREBY ORDERED that: 1. The administration of the estate is brought to a close without the requirement of an account. 2. The Administrators have in their possession belonging to the estate, a balance at the approximate value of $343,495.24, of which approximately $335,995.24 is cash in the Wells Fargo Bank account and the rest is the household and personal effects at its appraised value of $7,500.00. 3. All acts of the Administrators relating to the matters in the waiver and petition are confirmed and approved. 4. The Administrators are authorized to pay or reimburse their attorney for any closing expenses from estate funds. 5. The Administrators have each waived her right to statutory compensation for services renderedin administering this estate, and for reimbursement for the payment of any administration expenses or debts of decedent made from personal funds. 6. The Administrator is authorized to pay to JANE BRINDLE MILLER the sum of $7,000.00, as agreed by the parties for her fees for ordinary services rendered in the administration of this estate, along with reimbursement for costs advanced by her in the closing of the estate. 7. The estate in the possession of the Administrators remaining for distribution shall be distributed to the following beneficiaries of the estate: a. Distributive Share of GAIL A. HART : To GAIL A. HART, the adult daughter of decedent, currently residing at 760 Emily Drive, Mountain View, CA 94043, the following property: /// /1/ (1) One-half (1/2) of household and personal effects of Decedent; (2) One-half (1/2) of the balance remaining in Wells Fargo Bank account no. 1330911486, 444 Castro Street, Mountain View, California, in the approximate amount of $164,497.62. - 3 - Estate of RUTH M. HART - 1-02-PR-150962 JUDGMENT OF FINAL DISTRIBUTION ON WAIVER OF ACCOUNTING & ALLOWANCE OF ATTORNEY'S FEES & REIMBURSEMENT OF COSTS DJ \oooqoxmA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Z6 27 28 b. Distributive Share 0fTRACY T. HART-DEGREGORIO: To TRACY T. HART-DEGREGORJO, the adult daughter of decedent, currently residing at 20395 Nikki Court, Sonora, CA 95470, the following property: (1) One-half (1/2) of household and personal efi‘ects of Decadent; (2) One-half (1/2) of the balance remaining in Wells Fargo Bank account no. 133091 1486, 444 Castro Street, MountainView, California in the approximate ' amount of $164,497.62. 9. Any other property of the estate not now known or discovered that may belong to the estate or in which decedent or the estate may have an interest shall be distributed to GAR, A. HART and TRACY T. HART-DEGREGORIO, in equal shares. FEB 1 0 2003 Dated: THOMAS (2. EDWARDSmeGE0F THEE]WWERIOR COURT m ~ 4 '- Estatc ofRUTH M. HART - l-OZ-PR-150962 JUDGMENT OF FINAL DISTRIBUTION ON WAIVER 0F ACCOUNTING & ALLOWANCE OF ATTORNEY‘S FEES & REIMBURSEMENT OF COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNERLAW GROUP, P.C. 800 S. Broadway, Suite 200 Walnut Creek, California 94596 EXHIBIT C \OOOQO‘xUI-DUJNH NNNNNNNNNt-‘t-v-‘HHHHHHH OOQONM-pmNHOOOOQOM-DWNHO Order issued on Submitted Matter @LE NOV 10 2021 Qler of the Court umy o! Santa C Superior COU ' DE ,UTY BY Maggie Casteuofi SUPERIOR COURT 0F CALIFORNIA COUNTY OF SANTA CLARA FREDERICK HART, JR” Case No. 21CV378991 Plaintiff, ORDER RE: DEMURRER TO VERIFIED COMPLAINT vs. MICHAEL HART, et a1., Defendants. The Demurrer to the Verified Complaint filed by defendants Michael Hart, Frances Hart, Tracy Hart-DeGregorio, and Gail Hart came on for hearing before the Honorable Helen E. Williams on November 2, 2021, at 9:00 am. in Department 7. The parties appeared through their counsel 0f record. The matter having been submitted afier presentation of oral argumcnt, the court now orders as follows: I. Introduction Before the court is a demurrer by defendants Michael Hart, Frances Hart, Tracy Hart- DeGregorio, and Gail Hart to the verified complaint filed by plaintiff Frederick Hart, Jr.‘ ‘ Because several defendants share the same last name, the court will refer to the individual defendants by their first names. No disrespect is intended. 1 ORDER RE: DEMURRER TO VERIFIED COMPLAINT \DOONQLJILUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Factual Background According to the pertinent allegations in the complaint, which alleges a single cause of action for partition and sale of real property, plaintiff, Michael, Tracy, and Gail are all siblings and the children of Ruth M. Hart, deceased. Ruth M. Hart owned the residential property at 760 Emily Drive in Mountain View (the property). The complaint alleges that Ruth M. Hart died intestate in 2002 and that plaintiff and defendants, excluding Frances (apparently but not alleged to be Michael’s spouse), were each awarded a one-quarter interest in the property in the distribution of Ruth M. Hart’s estate, ofwhich Gail and Tracy acted as co~administrators. (Complaint at'fl 10.) The complaint further alleges that in or around 2003, plaintiff, Michael, Tracy, and Gail entered into an agreement concerning the property, amended in 201 8 to its most recent iteration. Per the 2003 agreement, not specified as written or oral or implied by conduct, Michael and Frances would live at the property until 2020 or 2021, when Michael would retire. Michael and Francis would be allowed to use the property as security for a loan in the amount of $337,500, and record title to the property would be facilitated in their names only as necessary to accomplish this. They alone would be responsible for repaying this debt. Upon Michael’s planned retirement in 2020 or 2021, the property would be sold and the proceeds distributed in amounts reflecting the one-quarter interest allocated to each sibling but with Michael’s share solely accountable for the just-mentioned debt. (Complaint atfil 12.) In exchange for this arrangement, Michael and Francis would also be solely responsible for all expenses to maintain the property and its value. Finally, the complaint alleges that on or about August 10, 2018, plaintiff, Michael, Tracy, and Gail fmther agreed that plaintiff would be advanced $18,000, which would later be deducted from his share of the proceeds generated by the sale of the property. (Complaint at 1} 13.) The complaint attaches Exhibit A, a written and recorded document dated August 10, 20 1 8, and labeled “Agreement to Share Equity between the Parties,” apparently signed by plaintiff, Michael, and Frances. It is not signed by Tracy or Gail. Its terms reflect the alleged agreement to advance plaintiff $ 1 8,000 against the value 0f his interest in the property; to sell the 2 ORDER RE: DEMURRER TO VERIFIED COMPLAINT ooqoxuuhwm \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 property in 2021, from which proceeds plaintiff‘s $18,000 advance would be deducted from his one-quarter portion; and plaintiffs agreement “not t0 contact [Michael 0r Frances] until the sale in 2021.” B. ProceduralBackground Plaintiff filed his complaint for partition on March 2, 2021. The pleading alleges a single cause of action for partition and sale 0f the property and makes the allegations described above. Defendants demurred after a stipulated extension of time and counsel having engaged, or at least partially so, in the meet and confer process required under Code of Civil Procedure section 430.41, subdivision (a) before the filing of a demurrer}? which Plaintiff opposes. II. Defendants’ Demurrer A. Request for Judicial Notice Defendants. request judicial notice of: (l) plaintiffs complaint in a prior action he filed against Gail alone on November 20, 2018, in Santa Clara County Superior Court docket number 18CV3378341; (2) multiple documents in the probate case, Estate 0f Ruth M. Hart in Santa Clara County Superior Court docket number 1-02~PR~150962; and (3) a grant deed recorded on January 15, 2003, in the Santa Clara County Recorder’s Office conveying the property from the Estate of Ruth M. Hart to Michael Hart and Frances Hart. They make aIl these requests under Evidence Code section 452, subdivision (d). 2 A11 further undesignated statutory references are to the Code of Civil Procedure. 3 Separately before the court is defendants’ motion for sanctions under section 128.5, for plaintiffs counsel having requested the entry 0f defendants’ defaults afier their counsel had filed a meet~and~confer declaration under section 430.41, subdivision (a), which in essence said that more time was needed to meaningfully complete the meet-and-confer process, entitling defendants to an automatic 30~day extension of time to answer or otherwise plead. Plaintiff asserts that the declaration is a sham as the required meet-and-confer process was completed such that defendants were not legally entitled to the automatic extension. The defaults were not entered, as the clerk declined to do so in light 0f defendants’ counsel’s filed declaration. In any event, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule 0r sustain a demurrer.” (§ 430.31, subd. (a)(4).) The court accordingly proceeds t0 the merits 0f the demurrer. Its ruling on sanctions will be by separate order. 3 ORDER RE: DEMURRER TO VERIFIED COMPLAINT \OOOQQUIAUJNH NNNNNNNNNfi-‘HHHHHHHHH OOQmLh-bUJNI-‘OKDOOQQUIAUJNHO Plaintiff does not object to defendants’ request for judicial notice and, in fact, relies in his demurrer opposition on some of the facts contained in these documents. The court will grant the request and take judicial notice ofthe court documents under Evidence Code section 452, subdivision (d), and the recorded grant deed under Evidence Code section 452, subdivision (g). (Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549 [court may take judicial notice of recorded deeds], disapproved on another ground in Black Sky Capital, LLC v. Cobb (2019) 7 Cal.5th 156, 165.) But the effect and extent of the court’s taking judicial notice of these items will be discussed in further detail below. B. Legal Standard for Demurrer As relevant to this case, “[t]he party against whom a complaint or cross-complaint has been filed may obj ect, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (d) There is a defect or misjoinder of parties, (e) The pleading does not state facts sufficient to constitute a cause of action, (t) The pleading is uncertain [or] (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. (§ 430. 10, subds. (d)- (g).) A demurrer may be used by “[t]he party against whom a complaint [] has been filed” to object to the legal sufficiency of the pleading as a whole, or to any “cause of action” stated therein, 0n one or more of the grounds enumerated by statute. (§§ 430.10 & 430.50, subd. (a).) The court in ruling on a demun'er treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Ca1.3d 31 1, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiffs ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children ’s Television, Inc. v. General Foods Corp. (1983) 35 Ca1.3d 197, 213-2 14.) In ruling on a demurrer, courts may consider matters subject to judicial notice. (Scott v. JPMorgan Chase Bank, NA. (2013) 214 Cal.App.4th 743, 751.) 4 ORDER RE: DEMURRER TO VERIFIED COMPLAINT \DOOQQUIAUJNH NNNNNNNNNr-‘t-Ip-IHHy-Ab-Ab-AHH mflathNHowmflmMQWNHo Evidentiary facts found in exhibits attached t0 the challenged pleading can also be considered on demurrer. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) C. Merits of the Demurrer Defendants’ notice of demurrer is hardly a model of clarity. It lists multiple asserted deficiencies in the complaint as “grounds,” but it fails t0 specify any actual statutory grounds as provided in section 430.10. Two of the listed deficiencies would conceivably meet the grounds specified at section 430.10, subdivisions (d) and (g,) respectively, for a defect or misjoinder of parties (by including Francis, with no alleged’interest in the prepexty, as a defendant) and a lack 0f specification in an action on a contract whether the contract is written, oral, 0r implied by conduct. The other alleged deficiencies would all likely fall under the statutory ground specified at section 430. 10, subdivision (e) in that the pleading does not state facts sufficient t0 constitute a cause of action 0r it is uncertain. But, frankly, it is hard to tell. The alleged pleading deficiencies as identified in defendants’ notice of demurrer are: (i) the complaint fails to describe the interests of the parties in the real property as required for a partition action under section 872.230; (ii) the complaint does not allege that Frances has any interest in the property; (iii) the complaint is defective because the property was actually sold by Ruth M. Hart’s estate t0 Michael and Frances and therefore plaintiff did not inherit a one-quarter interest in it, as he alleged; (iv) the facts alleged in the complaint are inconsistent with plaintiff’s allegations in the prior action (against Gail) regarding the same subj ect matter; (v) the complaint fails to specify whether the alleged agreements between plaintiff, Michael, Tracy, and Gail were written 0r oral; (vi) the complaint does not provide the essential terms of the alleged agreements between plaintiff, Michael, Tracy, and Gail; (vii) there is n0 consideration for the agreement that was alleged by plaintiff in the prior action against Gail; (viii) the alleged agreement reflected in Exhibit A to the complaint fails for lack 0f consideration; (ix) the alleged agreement reflected in Exhibit A violates the statute of frauds; and (x) the alleged agreement reflected in Exhibit A is signed by plaintiff, Michael, and Frances but is not signed by the other alleged owners 0f the property. 5 ORDER RE: DEMURRER TO VERIFIED COMPLAINT \DOOQQLA-hWNr-I NNNNNNNNNHHHHHHHHHH OOQONLAAWMHOKDOOQQUI-hmmr-O Defendants’ memorandum of points and authorities likewise does not frame the asserted deficiencies in plaintiff’s complaint in terms of the grounds listed at section 430.10, but it expands in argument on the deficiencies identified in the notice. Plaintiff does not contest the adequacy of the identified grounds for demurrer, and he appears to have been able to address them by opposition. The coun will accordingly accept the grounds for demurrer as stated in the notice, linking them as framed above to the statutory grounds listed at section 430.10. But all the asserted pleading deficiencies go the single cause of action of the complaint for partition. To the extent the court sustains the demurrer, these are on alternative grounds to this single cause of action‘ i. The Failure to Allege Interests 0f the Parties Under Section 872.230 Defendants contend that the complaint violates section 872.230, applicable to partition actions, because it fails to allege the character of the specific interest of each alleged owner of the property, such as a holding by joint tenancy, etc. Under section 872.230, a plaintiff in a partition action must plead “[a]ll interests the plaintiff has or claims in the property” and “[a]11 interests of record or actually known to the plaintiff that persons other than the plaintiff have or claim in the property and that the plaintiff reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff.” (§ 872.230, subds. (b) & (0).) The failure t0 comply with these requirements renders a complaint subject to a demurrer. (See, e.g., Neusted v. Skernswell (1945) 69 Cal.App.2d 36 l, 364 [discussing former version of sectiou 872.230, section 753].) Plaintiff here agrees that this requirement applies but he contends that he has met it. Specifically, he argues that he is not required to allege the specific character of the tenancies or interests allegedly held by the parties because section 872.210 makes clear that the distinctions among the types of tenancies are irrelevant. With respect to the alleged ownership interests of the parties (save Frances), the complaint alleges: “Plaintiff is the owner of an undivided one-quarter interest in the above- mentioned property which is co-owned concurrently in undivided equal one-quarter interests by: 1) Plaintiff; 2) Michael Hart; 3) Gail Hart; and 4) Tracy Hart-Degregorio.” (Complaint at 1] 11.) Defendant cites no authority requiring that the type or character of the tenancy must be alleged. 6 ORDER RE: DEMURRER TO VERIFIED COMPLAINT OOQO‘sU‘I-bbdN \D 1o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It has been held that merely indicating that “ ‘the plaintiff and defendants are the owners’ ” 01' that the property is held in trust is insufficient to state the “proportional interests” of the parties. (Neusted v. Skernswell, supra, 69 Ca1.App.2d at p. 364 [discussing requirement in the context of claim for resulting trust].) Likewise, an allegation that the plaintiff merely sought a decree that he is the owner 0f a one-half, undivided interest in property is not an allegation of the required proportional interests in the property because it is not a statement that the plaintiff actually owns a one-half, undivided interest. (1bid.) But this suggests that allegations that a plaintiff actually does own such an interest and that defendants actually hold similar interests is sufficient to meet the pleading requirements of section 872.230, without further characterization of the alleged tenancies. Plaintiff has thus sufficiently alleged the interests 0f both himself and those whom he believes will be materially affected by the action. Accordingly, the demurrer is OVERRULED as to this alleged deficiency, which seemingly relates to the statutory ground of the failure to state facts sufficient to constitute a cause of action. . ii. The Failure to Allege Frances’s Interest in the Property Defendants also assert as a pleading deficiency that plaintiff has failed t0 allege that Frances has any interest in the property. Plaintiff correctly retofis that he was required to join Frances as a defendant under section 872,510, which provides, in filll, “The plaintiff shall join as defendants in the action all persons having or claiming interests of record or actually known to the plaintiff 0r reasonably apparent from an inspection of the property, in the estate as t0 which partition is sought.” And the complaint alleges that Michael and Frances had the right to possess the property under the terms of the alleged agreement. (Complaint at 1] 12.) Accordingly, the demurrer is OVERRULED as t0 this alleged deficiency, which seemingly relates to the statutory grounds of either a misjoinder or defect in named parties 0r the failure to state facts sufficient to constitute a cause of action. 7 ORDER RE: DEMURRER TO VERIFIED COMPLAINT _ OKOOOflQm-fiUJN NNNNNNNNNHHr-AHt-HHr-db-AH mfloU’l-§UJNv--O\OWQC\LAAUJNr-- iii. The Complaint is Defective Because its Allegations Are Contradicted by Facts Contained in Judicially Noticeable Documents Defendants contend that plaintiff’s allegation that he received a one-quarter interest in the property as an inheritance from Ruth Hart when she died is contradicted by the probate court’s Judgment of Final Distribution in docket number 1-02»PR-1 50962-the case in which Ruth Hart’s estate was probated--and the grant deed by which the estate conveyed the property by sale to Michael and Francis in 2003. The probate documents and the recorded deed together reflect that Ruth died not intestate, as alleged, but with a will leaving her entire estate to her two daughters Gail and Tracy, disinheriting her other children, including plaintiff and Michael; the property was an asset of the estate; the property was sold for $337,500 and conveyed by grant deed in 2003 by the estate to Michael and Francis for less than its appraised value; and the cash resulting from the sale was distributed t0 Gail and Tracy as the two sole heirs of Ruth’s estate. Plaintiff argues in response that while the court may take judicial notice 0f the existence 0f facts and factual findings contained in judicially noticeable documents, this does not extend to the tmth of those facts. Defendants counter that the court may take judicial notice not only ofthe requested documents but of their legal effect, particularly as it pertains to the property and plaintiff s alleged interest in it. “Indeed, a demurrer may be sustained where judicially noticeable facts render the pleading defective [citation], and allegations in the pleading may be disregarded if they are contrary to facts judicially noticed. [Citations.]” (Scott v. JPA/Iorgan Chase Bank, N.A. (2013) 214 Ca1.App.4th 743, 751-752 (30017).) “ ‘ “[A] complaint otherwise good on its face is subject to demurrer when facts judicially noticed render it defective.” [Citati0n.]’ [Citation.]” (Evans v. City ofBerkeley (2006) 38 Ca1.4th 1, 6.) For example, “[w]here the pleadings and matters subject to judicial notice establish the defendant owed the plaintiff no duty, a case may preperly be disposed of on demurrer, without further waste ofjudicial resources.” (A Vila v. Citrus Community College Dist. (2006) 38 Ca1.4th 148, I65, fn. 12.) “ ‘ “ ‘Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the 8 ORDER RE: DEMURRER TO VERIFIED COMPLAINT #UJM NOOONQU'I 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 action without requiring formal proof of the matter.’ ” ’ [Citation.]” (Fontenot v. Wells Fargo Bank, NA. (201 1) 198 Cal.AppAth 256, 264 (Fontenot), disapproved on another ground in Yvanova v. New Century Mortgage Corp. (2016) 62 Ca1.4th 919, 939, fn. I3.) “When ruling on a demurrer, ‘[a] court may take judicial notice 0f something that cannot reasonably be controverted, even if it negates an express allegation of the pleading.’ [Citation.]” (Ibid.) Here, as noted, defendants have sought and the court has taken judicial notice of certain documents contained in the probate court file, including the Final Judgment of Distribution, and the 2003 grant deed evidencing the sale and transfer of the property from Tracy and Gail in their capacities as co-administrators ofRuth Hart’s estate to Michael and Frances. With respect to the grant deed, the court may take judicial notice of “the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language, assuming there is no genuine dispute regarding the document’s authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Fontenot, supra, 198 Cal.App.4th at p. 265.) As noted, plaintiff here does not dispute the authenticity of the deed, which is dated January 15, 2003, and which indicates that, in 2003, the property was conveyed to Michael and Frances, as husband and wife, by Gail and Tracy as co-administrators of Ruth Hart’s estate. This state of facts is not necessarily inconsistent with the facts alleged in the complaint that plaintiff, Michael, Tracy, and Gail together agreed, outside of their mother’s will, that “the Parties would take any necessary steps to allow for Michael and Frances to obtain [a loan in the amount of $337,500] including having title to the Property be vested in Michael’s and Frances’ names.” (Complaint atfl 12.) E“ With respect to the documents from the probate court file, [t]he court may in its discretion take judicial notice of any court record in the United States. [Citation] This includes any orders, findings of facts and conclusions of law, and judgments within court records. [Citations.] However, while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice 9 ORDER RE: DEMURRER TO VERIFIED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of the truth of hearsay statements in decisions and court files.' [Citation.]" (In re Vicks (2013) 56 Cal.4th 274, 314 [denying request for judicial notice because the request sought judicial notice o the contents of the court records].) Defendants correctly argue that the probate court's order establishes that Ruth M. Hart died with a will, contradicting the allegation in the complaint that Ruth Hart died intestate. (Complaint at If 10.) Defendants are also correct that the probate court's order indicates that only Tracy and Gail were the beneficiaries of, and received any inheritance from, Ruth Hart's estate. Thus, plaintiff, Michael, Tracy, and Gail were not each awarded an undivided one-quarter share or interest in the property as alleged in the complaint. (Ibid.) In fact, no one inherited an interest in the property as it was sold as an asset of the estate and the sale proceeds distributed per Ruth Hart's will as probated and as reflected in the Final Judgment of Distribution. Accordingly, plaintiff's contrary allegations in his complaint-that he received an interest in the property by inheritance from Ruth Hart must be disregarded in determining whether the complaint is subject to demurrer on the ground of failure to state a cause of action. But, construing the allegations of the complaint liberally, as the court must, neither the probate documents nor the grant deed entirely negate that there was still some form of agreement entered into among plaintiff, Michael, Tracy, and Gail whereby plaintiff would at some point receive a one-quarter interest in the property or the value of such an interest. Just not the agreement as alleged. And defendants have not asserted or argued that because of the judgment entered by the probate court in the estate of Ruth M. Hart, plaintiff cannot have his alleged one-quarter interest in the property as a matter of law. The complaint, likewise not a model of clarity, alleges a single cause of action for partition of the property on two bases. The first is that plaintiff is entitled to a one-quarter interest in the property, representing his inheritance from Ruth Hart. While this is shown not to be true based on matters of which the court has taken judicial notice, a "demurrer does not lie to a portion of a cause of action." (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.) The second is that plaintiff is entitled to a one-quarter interest in the property based on some agreement between himself, Michael, Tracy, and Gail. As defendants have not shown that these 10 ORDER RE: DEMURRER TO VERIFIED COMPLAINT \OOOQQUI-AUJNr-t NNNNNNNNNb-tr-Ar-AHHHHHp-AH OONQMAWNHOWOOQQMAWNr-IO allegations must fail as a matter of law, the demurrer on based on this asserted deficiency must be overruled. Accordingly, the demurrer is OVERRULED as to this alleged deficiency, which seemingly relates to the statutory ground of the failure to state facts sufficient to constitute a cause of action. iv. There are Inconsistencies Between the Complaint in this Action and Plaintiff’s Allegations in the Prior Action Defendants argue that plaintiff has alleged facts in the complaint here that are inconsistent with his allegations in his prior case against Gail alone, docket 18CV337834, of which the court has taken judicial notice. They specifically take issue with the following statement in the complaint in docket 18CV337834: “We moved my Brother Michael into the home one year after [Ruth Hart’s] Death and Verbally agreed to split ownership 25 % each for ‘ Gail, Michael, Tracy and myself Frederick.” Defendants assert that under the doctrines of tmthful pleadings or judicial admissions, paragraph 10 of the complaint in this case must be stricken as inconsistent with that prior allegation. Paragraph 10 of the complaint here alleges: “Ruth Hart died intestate in 2002 and Gail and Tracy acted as the Executors of Ruth Hart’s estate wherein the Plaintiff and the Han Defendants were awarded and acquired an equal, respective undivided one-quarter interest in the Property,” an allegation the court must disregard on demurrer as noted above. “Under the doctrine of truthful pleading, the couns ‘Will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed.’ [Citation.] ‘False allegations of fact, inconsistent with annexed documentary exhibits [citation] or contrary to facts judicially noticed [citation], may be disregarded . ...’ [Citation.]” (Hoflnan v. Smithwoods RVPark, LLC (2009) 179 Ca1.App.4th 390, 400.) “ ‘Both trial and appellate courts may properly take judicial notice of a party’s earlier pleadings and positions as well as established facts from both the same case and other cases. [Citations] The complaint should be read as containing the judicially nbticeable facts, “even when the pleading contains an express allegation to the contrary.” [Citation.] A 11 ORDER RE: DEMURRER TO VERIFIED COMPLAINT plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false. [Citation.] Likewise, the plaintiff may not plead facts that contradict thé facts or positions that the plaintiff pleaded in earlier actions or suppress facts that prove the pleaded facts false. [Citation.]’ [Citation.]” (Larson v. UHS ofRanc/zo Springs, Inc'. (2014) 230 Cal.App.4th 336, 344, italics omitted.) But this doctrine does not allow the court to strike the inconsistent allegations on a demurrer. Instead, the court disregards the inconsistent facts. Moreover, the portions of the complaint here and those 0f plaintiff’ s prior complaint to which defendants refer are not necessarily inconsistent. Accordingly, the demurrer is OVERRULED as t0 this asserted deficiency, which seemingly fits within the statutory ground of the failure to state facts sufficient to constitute a cause of action. v. The Failure to Specify Whether the Agreements Were Written or Oral Defendadts contend that the complaint fails to specify whether the agreements among the siblings concerning the property were written or oral, rendering it subject to demurrer under section 430. 10, subdivision (g). Plaintiff argues that the complaint specifies that the agreements were oral but that some of its terms were memorialized in 2018 in a written memorandum attached to the complaint as Exhibit A. But defendants correctly point out that the complaint does not allege that an agreement was oral. In peninent part, the complaint pleads that “[i]n 0r about 2003 and as amended thereafier, most recently in 20 l 8, Plaintiff and the Hart Defendants agreed that . .. 3’4 The 2018 written memorandum is attached to the complaint as Exhibit A but the complaint itself alleges that there are more tenns t0 the agreement than are stated in the written memorandum, and the memorandum is not signed by defendants Gail or Tracy. And, as the document attached as Exhibit A does not purport to grant plaintiff any interest in the 4 The term “Hart Defendants” is used by Plaintiff to refer to Michael, Tracy, and Gail. (Complaint at 1] 7.) 12 ORDER RE: DEMURRER TO VERIFIED COMPLAINT OONONUIhUJN Oko 12 13 14 15 l6 l7 18 19 20 21 22 23 24 25 26 27 28 property, the 2018 document is seemingly not the only alleged agreement between the parties, or any of them. Plaintiff states in his opposition that there was a 2003 oral agreement between Michael, Tracy, Gail, and plaintiff granting each of them a one-quarter undivided interest in the property. (Opposition at p. 2, lns. 19-21.) But, as noted, the complaint does not state whether the alleged 2003 agreement was written or oral, and it is insufficient in this respect. Accordingly, the demurrer is SUSTAINED with 10 days’ leave to amend on the ground that the complaint fails to state whether the contract forming the basis of the action was written or oral or implied by conduct. vi. The Failure to Provide the Essential Terms of the Agreement Defendants contend that the complaint fails to provide the essential terms 0f the alleged agreement between plaintiff, Michael, Tracy, and Gail. They argue that this is required under section 430.10, subdivisions (e) and (g). Segtion 430.10 provides the grounds for a demurrer, including that “[t]he pleading does not state facts sufficient to constitute a cause of action and that “[i]n an action founded upon a contract, it cannot be ascefiained from the pleading whether the contract is written, is oral, 0r is implied by conduct.” (§ 430.10, subds. (e) & (g).) Section 430. 10, subdivision (g) does not support defendants’ argument here because it requires only that the pleading allege whether the contract forming the basis of the action was written or oral. Section 430.10, subdivision (e) provides that one of the grounds for demurrer is the failure to state a cause of action. Plaintiff contends that all of the essential terms of the oral agreement are contained in paragraph 12 of the complaint. “It is essential to the existence of a contract that there should be: [1|] 1. Parties capable of contracting; [fl] 2. Their consent; [1]] 3. A lawful object; and, [1|] 4. A sufficient cause or consideration.” (Civ. Code, § 1550.) Paragraph 12 0f the Complaint provides, in its entirety: In or about 2003 and as amended thereafter, most recently in 20 1 8, Plaintiff and the Hart Defendants agreed that: 1) Michael and Frances were allowed to live at and occupy the Property until Michael retired in around 2020 or 2021, at which time the Parties would sell the Property and distribute a respective one quarter of the sale proceeds as more specifically set forth herein; 2) Michael and Frances may take a loan out against the Property in the amount of $337,500 and that the Parties would take any necessary steps to allow for Michael and Frances to obtain this loan including having title to the Property be vested in Michael’s and Frances’ names 13 ORDER RE: DEMURRER TO VERIFIED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 only; 3) that Michael and Frances would be solely responsible for the re-payment of the loan; 4) that the Parties were to sell the Property in 2020 or 2021 when Michael retired; 5) when the Parties sold the Property in 2020 or 2021 when Michael retired, that Michael's one-quarter sale proceeds would be reduced by any remaining loan amount; and 6) in exchange for Michael and Frances' occupancy of the Property, Michael and Frances would be and were solely responsible for any and all repairs, improvements, property taxes, insurance, and principal and interest mortgage payments coming due on the Property and or as needed to keep the Property in top-quality condition. [¶] A true and correct copy of the written and recorded Agreement to Share Equity between the Parties dated August 10, 2018 is attached hereto as Exhibit A. This paragraph lacks any terms relating to plaintiff acquiring a one-quarter interest in the property. Nor does it identify any consideration for that agreement. Accordingly, defendants' argument is well-taken because, as discussed below, the document attached to the complaint as Exhibit A likewise does not include a provision by which plaintiff would acquire a one-quarter interest in the property. The demurrer is accordingly SUSTAINED with 10 days' leave to amend on this asserted pleading deficiency seemingly relating to the statutory ground of the failure to state facts sufficient to constitute a cause of action. vii. Lack of Consideration for the Contract Alleged in the Prior Action Defendants contend that plaintiff failed to allege any consideration for the agreement he claims provided him rights in the property, as alleged in the prior action between himself and Gail. They also claim that plaintiff cannot amend the complaint here to add the element of consideration. Although the court may consider matters subject to judicial notice on demurrer, and the court here has taken judicial notice of the complaint in plaintiff's prior action, it is not clear how the fact that consideration may not have been alleged with respect to the contract in the prior action might have any impact on the outcome of the demurrer here, which challenges the complaint in this case. To the extent defendants are arguing that the oral agreement plaintiff alludes to in his opposition lacks consideration, this point is addressed in the previous section. Accordingly, the demurrer is OVERRULED on this asserted deficiency seemingly related to the statutory ground of the failure to state facts sufficient to constitute a cause of action. 14 ORDER RE: DEMURRER TO VERIFIED COMPLAINT bUJN OO\IO\£}I OKO 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 viii. The Lack of Consideration for the Agreement Attached to the Complaint as Exhibit A Defendants also argue that the agreement alleged in this case, to the extent it is memorialized in Exhibit A to the complaint, fails for lack of consideration. Plaintiff contends that the consideration for that agreement is his stated undertaking not to contact Michael and Frances until the sale of the property in 2021. The document attached to the complaint as Exhibit A reflects that Michael and Frances agreed to give plaintiff $18,000 as an advance on his one- quarter interest in the property and that in exchange, plaintiff agreed he would not contact Michael and Frances until the sale of the property in 2021. Defendants assert in reply, without any analysis or citation to authority, that the promise not to contact Michael and Frances is not legally valid consideration. “Sufficient, or good, consideration is an essential element to the existence of a contract. (Civ. Code, § 1550.)” (City ofSan Marcos v. Lama San Marcos, LLC (2015) 234 Ca1.App.4th 1045, 1055.) “Any benefit conferred, or agreed to be confelred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.” (Civ. Code, § 1605.) “[V]aluable consideration is not limited to the payment ofmoney or other material exchange; may be based on a promise; consist of the cancellation of a debt; or arise out of a waiver of rights[.]” (Estate ofB-ishop (1962) 209 Ca1.App.2d 48, 55.) “ ‘[B]argained-for contractual consideration is not required to be adequate in the sense of equality in value but only need represent some legal detriment not otherwise incurred.’ [Citations.]” (City ofSan Marcos v. Lama San Marcos, LLC, supra, 234 Cal.App.4th at p. 1056.) Here, the term of the alleged agreement attached as Exhibit A to the complaint is that plaintiff agreed to give up something, namely contacting Michael and Frances, in exchange for the benefits he bargained for. Defendants do not centend that plaintiff was already legally prevented from contacting them and their argument that such consideration is invalid is 15 ORDER RE: DEMURRER TO VERIFIED COMPLAINT \DOONQUILUJNH NNNNNNNNNHHfi-p-HHp-Hp-H OONQU‘I-hUJNHOKDOOflQUfi-hwwt-O unsubstantiated and undeveloped. Again, to the extent this is an argument that the oral agreement lacked consideration, this argument has been addressed above. Accordingly, the demurrer as to this pleading deficiency seemingly relating to the statutory ground of the failure to state facts sufficient to constitute a cause of action is OVERRULED. ix. The Agreement Referenced in Exhibit A Violates the Statute of Frauds Defendants contend that the alleged oral agreement to provide plaintiff with a one-quarter interest in the property as reflected in Exhibit A to the complaint violates the statute of frauds and also that the document fails to comply with the statute of frauds because it is signed only by Michael and Frances but not Gail and Tracy. Civil Code section 1624 provides in pan, “The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party’s agent: [1]] An agreement that by its terms is not to be performed within a year fiom the making thereof.” (Civ. Code, § 1624, subd. (a)(l).) Defendants also cite to Civil Code section 1624, subdivision (a)(3), which provides that a contract must be in writing when it is “[a]n agreement for the leasing for a longer period than one year, 01‘ for the sale of real property, or of an interest therein; such an agreement, if made by an agent 0f the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged.” Section 1971 and Civil Code section 1091 also require certain contracts for the sale, lease, or transfer of land t0 be in writing. Plaintiff contends that the alleged oral agreement is not barred by the statute of frauds because the 2018 agreement is memorialized in a writing signed by the parties to be charged, namely Michael and Frances, whom he contends are the record owners of the property. “The statute of frauds does not require a written contract; a ‘note or memorandum subscribed by the party to be charged’ is adequate. (Civ. Code, § 1624, subd. (a).) ‘[a] written memorandum is not identical with a written contract [citation]; it is merely evidence of it and usually does not 16 ORDER RE: DEMURRER TO VERIFIED COMPLAINT \OOOQQLh-bwmw- NNNNNNNNNHHHHv-‘Hr-«HHH muom-wa-Okooouoxmpwmp-‘o contain all of the terms.’ [Citations.]” (Sterling v. Taylor (2007) 40 Cal.4th 757, 765-766 (Sterling).) “A memorandum satisfies the statute of frauds if it identifies the subject of the paxfies’ agreement, shows that they made a contract, and states the essential contract terms with reasonable certainty. [Citation.] ‘Only the essential terms must be stated, “ ‘details 0r paniculars’ need not [be]. What is essential depends 0n the agreement and its context and also on the subsequent conduct 0f the parties .” [Citati0n.]’ [Citations.]” (Sterling, supra, 40 Cal.4th at p. 766.) Here, the essential temls of the alleged agreement are not contained in the 201 8 document, as discussed above. A11 the parties to be charged are not mentioned or referenced. And there is no mention of transferring any interest in the property by anyone t0 plaintiff. Instead, the document assumes or presupposes that plaintiff already had or was entitled to a one- quarter interest derived from some other agreement 0r event. Adcordingly, the demurrer is well- taken as to this asserted pleading deficiency. Although the court concludes that the alleged oral agreement on which plaintiff’s cause of ac'tion is based is unenforceable as now alleged in the complaint, and that the document attached as Exhibit A does not alter this conclusion, the court will nonetheless sustain the demurrer with leave to amend. Plaintiff has pleaded that there were multiple amendments to the parties’ alleged agreement but does not state the nature or terms of those amendments. But, given the liberality afforded t0 pleading amendments, and because it appears that there is some possibility the complaint might be amended to cure these specified deficiencies, the demun‘er is SUSTAINED with 10 days’ leave to amend as to this asserted deficiency seemingly relating to the statutory ground that the pleading fails t0 state facts sufficient to constitute a cause of action. x. The Agreement Referenced in Exhibit A Is Not Signed by the Other Alleged Owners 0f the Property ' Defendants contend that even if Exhibit A to the complaint is the agreement alleged therein, or even if Exhibit A merely memorializes the alleged agreement among the parties, it still is not signed by all the alleged owners of the property and does not even refer to all ofthem. 17 ORDER RE: DEMURRER TO VERIFIED COMPLAINT OWOOQOLA$UJN~ MNNNMNNMNp-tu-p-p-r-r-p-p-r-‘p-n OONQU‘I-h-UJNHOKOOOQQU‘I-wap- Thus, it cannot be the memorialization 0f an agreement by all parties “to be charged” under the statute of frauds. Plaintiff asserts that the document is signed by the parties to be charged because, as indicated in the grant deed attached to defendants’ request for judicial notice, Michael and Frances are the only record owners 0f the property. This argument is confusing as plaintiff has also asserted that the agreement contained in Exhibit A is not the full agreement among the parties by which he allegedly acquired an interest in the property but merely a memorialization or proof of some parts of it. More fundamentally, the agreement contained or referenced in Exhibit A does not purport to grant plaintiff a one-fourth interest in the property. It merely recites that he has such an interest, as though that were assumed, based on some prior agreement or event. The text 0f Exhibit A states, in filll: 1. Frederick Hart agrees and accepts Michael Hart and Frances Hart’s offer of $18,000. The $ l 8,000 is an advance on his 1/4 (one-fourth) equity in the property at 760 Emily Drive. Mountain View, California, 94043. The house will go on the market ‘in 2021 and once sold, Frederick Hart will reimburse Michael Hart and Frances Hart the $18,000 from his share Ofthe Equity. 2. Frederick Hart requests that the $ 1 8,000 be paid in cash. This transaction has taken place and this letter is receipt of the payment. 3. Frederick Hart agrees not to contact Michael Hart or Frances Hart until the sale of the above mentioned property in 2021. At that time, Michael will contact Frederick Hart concerning the disbursement of Frederick’s equity minus $18,000. The document is signed by Michael, Frances, and plaintiff. As the document states that Michael and Frances were to provide the $18,000 to plaintiff and that plaintiff agreed not to contact Michael and Frances, the only parties to this contract, if it is one, would necessarily be Michael, Frances, and plaintiff. The document does not purport to bind anyone else to its terms, which do not in any event establish plaintiff’s alleged interest in the property or convey any interest to him. Accordingly, defendants’ argument as to this pleading deficiency that Exhibit A violates the statute of frauds because it is not signed by all parties to be charged misses the mark. The demurrer is accordingly OVERRULED on this asserted deficiency, seemingly related t6 the statutory ground of the failure to state facts sufficient to constitute a cause of action. 18 ORDER RE: DEMURRER T0 VERIFIED COMPLAINT III. Conclusion The demurrer to the single cause of action of the complaint for partition is SUSTAINED based on the ground that the complaint fails to allege whether the agreement among the parties concerning plaintiff’s interest in the property is wn'tten or oral, 0r implied by conduct. (§ 430.10, subd. (g).) The demurrer is also sustained based on the additionally asserted deficiencies that the complaint fails to allege the essential terms of the alleged agreement and violates the statute of frauds, both of which relate to the statutory ground of the failure to state facts sufficient to constitute a cause of action. (§ 430.10, subd. (6).) The court grants 10 days’ leave to amend. The demurrer is OVERRULED as to all other asserted pleading deficiencies. Plaintiff is reminded that when a demurrer is sustained with leave to amend, the leave must be construed as permission to the pleader to amend the causes of action to which the demurrer has been sustained, not add entirely new causes of action. (See Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) To the extent plaintiff might wish to amend the complaint to raise additional causes of action, he must do so via a noticed motion. Defendants are reminded that if they demurrer to any amended complaint, they are required to do so by asserting and identifying the statutory grounds for demurrer as listed at section 430,10, not merely by assembling and arguing about a list of asserted pleading deficiencies that arc not expressly tethered to the statutory grounds. It is so ordered. Dated: November 9, 2021 M/k/ Hon. Helen E. Williams Judge of the Superior Court 19 ORDER RE: DEMURRER TO VERIFIED COMPLAINT SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NORTH FIRST STREET SANJOSE, CALIFORNIA 95113 CIVIL DIVISION RE: Frederick Hart, Jr. vs Michael Hart et al Case Number: 21 CV378991 'ltagg'ae Casteuon PROOF 0F SERVICE ) Order Re: Demurrer to verified complaint was delivered to the parties listed below the abbve entitled case as set forth in the sworn declaration below. If you. a pafly represented by you. or a witness to be calfled on behalf of that party need an accommodation under the American with Disabilities Acl. please contact the Court Administrator‘s office at (408) 882-2700. or use the Courfs TDD line (408) 882-2690 or the VoiceITDD Califomia Relay Service (800) 735-2922. ‘ DECLARATION 0F SERVICE BY MAIL: I declare that I served this notice by enclosing a true copy 'In a sealed envelope, addressed to each person whose name ls shown below. and by depositing the envelope with postage fuuy prepaid, in the United States Mail at San Jose, CA on November 10. 2021. CLERK OF THE COURT, by Maggie Castellon. Deputy. cc: Paymon Hifai Homer Law Group PC 800 S Broadway Ste 200 WALNUT CREEK CA 94596 Douglas S Maynard 1151 Minnesota Avenue San Jose CA 95125 CW~9027 REV 12/08/16 PROOF 0F SERVlCE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNERLAW GROUP, P.C. 800 S. Broadway, Suite 200 Walnut Creek, California 94596 EXHIBIT D Michael Kline From: Sharon Piserchio Sent: Friday, November 19, 2021 3:27 PM To: maynard|awoffices@earth|ink.net Cc: Michael Kline; Clifford Homer Subject: Hart v. Hart, et al. Attachments: 2021 1 1 19.M&C Letter to OPC re 2nd Amended Complaintpdf Follow Up Flag: Follow up Flag Status: Completed Categories: Red Category Case: Hart Deadline: 12/1/2021 8:00:00 AM Task: File Motion to Amend if no agreement after break Dear Mr. Maynard: Attached please find correspondence from Michael G. Kline, Esq. regarding the referenced matter. Sharon Piserchio, Senior Paralegal HORNER LAW GROUP, P.C. 800 S. Broadway, Suite 200 Walnut Creek, CA 94596 Phone: 925.943.6570 Fax: 925.943.6888 Email: spiserchio@hornerlawgroup.com CONFIDENTIALITY NOTE: This message and attachments contain information which may be confidential and privileged. Unless you are the addressee, or authorized to receive on behalf of the addressee, you may not use, copy or disclose to anyone the message or any information contained in or attached to the message. If you believe you have received this message in error, please advise the sender by reply email to spiserchio@hornerlawgroup.com and delete the message. HLG Horner Law Group, PC MichaelG. Kline, Esq.A T T 0 R N E Y 5 A T L A w mkline@hornerlawgroup.com November 19, 2021 VIA ELECTRONIC MAIL Douglas Scott Maynard, Esq. Law Offices 0f Maynard & Hogan 1 151 Minnesota Avenue San Jose, CA 95125 Email: maynardlawoffices@earthlink.net Re: Hart v Hart, et al. Santa Clara Countv Superior Court Case N0. 21CV378991 Dear Mr. Maynard: Please allow this correspondence t0 constitute our good faith effort to meet and confer with you regarding the following: As you know, Within the Court’s recent order partially sustaining Defendants’ Demurrer to Plaintiff s Complaint, leave to amend was granted with the express caveat that additional causes of action could not be included without seeking leave to amend Via noticed motion. In order to ensure that we do not run afoul of this instruction, Plaintiff’s First Amended Complaint (which was filed and served today) was limited t0 the lone cause 0f action for Partition originally alleged. That said, in reviewing the Court’s order with our client, we discovered facts supporting five additional causes of action arising from the same set 0f factual allegations previously alleged: two causes of action for breach 0f contract against Michael and Frances (2002 oral agreement and 2018 written agreement), a cause 0f action for fraud against Gail and Tracy, and causes of action for Promissory and Equitable Estoppel against all Defendants. A copy of our proposed 2nd Amended Complaint is attached for your review and consideration. As you will see, it adds the aforementioned causes of action (and accompanying prayers for relief) t0 the lst Amended Complaint; the content ofwhich was not changed in any way. By way of this correspondence, we are seeking your stipulation to its filing, in order to avoid the time and expense associated with a Motion for Leave t0 Amend that will most likely be granted, given controlling precedent favoring such a result. See, e.g., Berman V. Bromberg (1997) 56 Cal.App.4th 936, 945; Herrera V. Superior Court (1984) 158 Cal.App.3d 255, 259. Please be advised that if you are unwilling to stipulate to the filing of the [Proposed] 2nd Amended Complaint and/or fail t0 substantively respond to this correspondence prior to December 1, 2021, we Will file our Motion t0 Amend and proceed accordingly. Horner Law Group, PC O 800 South Broadway Avenue, Suite 200 O Walnut Creek, California 94596 Main: 925.943.6570 O Fax: 925.943.6888 O www.hornerlawgroup.c0m Mr. Maynard Re: Hart v Hart, et al. November 19, 2021 Page 2 of 2 Thank you in advance for your prompt attention t0 this matter. Very T 1y Yours, ael G. Kllne, Esq. MGKzsp Enclosures (2): 1“ Amended Complaint; [Proposed] 2nd Amended Complaint Horner Law Group, PC o 800 South Broadway Avenue, Suite 200 o Walnut Creek, California 94596 Main: 925.943.6570 O Fax: 925.943.6888 O www.hornerlawgroup.com 1 Clifford R. Homer, Esq., State Bar N0. 154353 Michael G. Kline, Esq., State Bar No. 212758 2 HORNER LAW GROUP, P.C. 800 S. Broadway, Suite 200 3 Walnut Creek, California 94596 Telephone: (925) 943-6570 4 Facsimile: (925) 943-6888 5 Attorneys for PlaintiffFREDERICK HART JR. 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA CLARA 10 11 FREDERICK HART JR., an individual, Case N0. 21CV378991 12 Plaintiff, FIRST AMENDED COMPLAINT 13 vs. Judge: Christopher G. Rudy Dept: 7 14 MICHAEL HART, an individual; FRANCES AC_tion Filed: March 2, 2021 HART, an individual; TRACY HART- Trlal Date: N/A 15 DEGREGORIO, an individual; GAIL HART, 1 6 an individual, and DOES 1 through 50, inclusive, 1 7 Defendants. 1 8 1 9 20 21 PlaintiffFREDERICK HART, JR. (“Plaintiff”) alleges: 22 GENERAL ALLEGATIONS 23 1. The subject 0f this action is certain real property situated in Santa Clara County, 24 California. 25 2. The real property is commonly known as 760 Emily Drive, Mountain View, 26 California 94043 and more particularly described as follows: Lot 17, in Block 1, as shown upon 27 the Mac 0f Tract N0. 1068 Cloverdale Terrace Which said map was filed for record in the office 0f 28 the Recorder of the County 0f Santa Clara, State of California on January 13, 1953 in Books 41 0f mmiiifiifififiiifazfim FIRST AMENDED COMPLAINT 1 Maps, page 3 1; Assessor’s Parcel Number 160-02-023 (the “Pr0perty”). 2 3. Plaintiff is informed and believes and thereon alleges that Defendant MICHAEL 3 HART (“Michael”) was and is an individual residing in Santa Clara County in the State of 4 California. 5 4. Plaintiff is informed and believes and thereon alleges that Defendant FRANCES 6 HART (“Frances”) was and is an individual residing in Santa Clara County in the State of 7 California. 8 5. Plaintiff is informed and believes and thereon alleges that Michael and Frances are 9 married as husband and wife. 10 6. Plaintiff is informed and believes and thereon alleges that Defendant TRACY 1 1 HART-DEGREGORIO (“Tracy”) was and is an individual residing and/or doing business in Santa 12 Clara County in the State of California. 13 7. Plaintiff is informed and believes and thereon alleges that Defendant GAIL A. 14 HART (“Gail”) was and is an individual residing and/or doing business in Santa Clara County in 15 the State of California (Michael, Tracy, and Gail are collectively referred to herein as the “Hart 16 Defendants”). 17 8. Plaintiff does not know the true names, capacities, basis for liability 0r interests in 18 the above-referenced property 0f defendants sued in this action as Does 1 through 50, and will 19 amend this complaint when that information is discovered. Plaintiff is informed and believes and 20 0n that basis alleges that at all relevant times, each defendant, including any defendant fictitiously 21 named, claims am interest in the Property, was acting as the agent, servant, employee, partner, 0r 22 joint venture 0f each defendant in doing the things alleged, or is responsible in some manner for 23 the damage and disputes alleged in this complaint. 24 9. Plaintiff, Michael, Tracy, and Gail are all siblings and the children 0fRuth M. Hart, 25 deceased (“Ruth Hart”). 26 10. During a period 0f time that Plaintiff was estranged from his mother, Ruth Hart 27 drafted and signed a handwritten Will 0n September 2, 1986 (the “Will”), which states, in its 28 substantive entirety, “I, Ruth M. Hart, leave everything I own t0 my daughters Gail Ann Hart and/or HORNERLAW GROUP, P.C. _ 2 _ 800 S. Broadway, Suite 200 Walnut Creek, California 94596 FIRST AMENDED COMPLAINT 1 Tracy Thelma Hart.” 2 11. Plaintiff reconciled With his mother a short time later. Thereafter, from 3 approximately 1989 through her passing in February 2002, Plaintiff took care of Ruth Hart by 4 assisting her with such daily living activities as cooking meals, purchasing and assisting 5 administration of her medications, shopping, and transporting her t0 doctor appointments. Plaintiff 6 also took care of the Property during this period by, amongst other things, performing landscaping 7 and general maintenance of the Property. 8 12. After Ruth Hart died in February 2002, Plaintiff met With the Hart Defendants to 9 discuss the administration 0f her estate (the “Estate”) and, in particular, his concern that his 10 mother’s Wishes at the time 0f her passing differed from those expressed in her Will. It was during 1 1 this February 2002 meeting that Plaintiffand the Hart Defendants (With Michael agreeing 0n behalf 12 of both himself and his wife, Frances) (collectively, the “Hart Siblings”) reached an oral 13 agreement that included the following representations, warranties and agreements (hereinafter, the 14 “2002 Contract”): 15 a. Each of the Hart Defendants was immediately entitled t0 an equal, respective, 16 undivided, one-quarter interest in the Property (Which would thereafter be referred t0 as Plaintiff s 1 7 “inheritance”). 18 b. The Hart Siblings would assist/refrain from interfering/obj ecting to Tracy and 19 Gail’s appointment as Administrators 0f the Estate and/or the validity 0f her Will. 20 c. Michael and Frances would sell their existing residence at that time, a condominium 21 located at 765 Fair Oaks Avenue, Unit 4, Sunnyvale, California 94085 (the “C0nd0”). 22 d. Plaintiff would assist Michael’s and Frances’ efforts t0 increase the sale price for 23 their Condo by performing maintenance, upkeep and otherwise assisting in its renovation prior t0 24 its sale. 25 e. Following their appointment as Administrators of the Estate, Gail and Tracy would 26 sell the Property t0 Michael and Frances in an amount equal t0 the net proceeds realized by Michael 27 and Frances from the sale 0f the Condo. 28 /// HORNERLAW GROUP, P.C. _ 3 _ 800 S. Broadway, Suite 200 Walnut Creek, California 94596 FIRST AMENDED COMPLAINT 1 f. Michael and Frances would then obtain a new equity loan secured by the Property. 2 g. Michael and Frances would move into the Property and use it as their primary 3 residence. 4 h. Plaintiff would continue performing maintenance and upkeep on the Property, 5 including front and back yard landscaping, until such time as Michael and Frances moved in. 6 i. After moving in, Michael and Frances would be solely responsible for any and all 7 repairs, improvements, property taxes, insurance, and principal and interest mortgage payments 8 coming due on the Property and/or as needed t0 keep the Property in top-quality condition. 9 j. Michael and Frances would sell the property when Michael expected to retire in 10 2020 or 2021 at the latest. 11 k. When the Property was sold, each 0f the Hart Siblings would receive 25% of the 12 net proceeds from that sale, except that any outstanding liens against the property would be 13 deducted from Michael’s 25% share of the sale proceeds, whereas Plaintiff and his sisters would 14 be entitled t0 25% of the net sale proceeds before those liens were paid off. 15 13. In accordance With their promises and obligations made part 0f the above-stated 1 6 oral agreement: 17 a. On March 1, 2002, Plaintiff signed a pleading prepared by Gail and Tracy’s 18 probate attorney (the “Waiver”) t0 assist Gail and Tracy in being appointed by the Santa Clara 19 County Superior Court as Administrators 0f Ruth Hart’s Estate (the “‘Estate”), within the matter 20 entitled In Re Estate ofRuth M Hart, Case No. 1-02-PR150962 (the “Probate Case”). Michael 21 signed an identical Waiver on March 4, 2002. 22 i. Within their Waivers, Plaintiff and Michael expressly “decline[d] t0 serve 23 as Administrator[s] of the Estate” and “nominate[d] GAIL A. HART and TRACY T. HART- 24 DeGREGORIO t0 serve as Co-Administrators of the Estate of RUTH M. HART, with the Will 25 annexed. . .” 26 ii. On March 8, 2002, Gail and Tracy filed a Petition to Administer the Estate 27 in the Probate Case. Both Waivers signed by Plaintiff and Michael were concurrently filed by Gail 28 and Tracy 0n March 8, 2002 in support of that Petition. HORNERLAW GROUP, P.C. _ 4 _ 800 S. Broadway, Suite 200 Walnut Creek, California 94596 FIRST AMENDED COMPLAINT 1 iii. On April 4, 2002, the Court in the Probate Case entered an order appointing 2 Gail and Tracy as the Estate’s Administrators, with “[flull authority t0 administer the [E]state 3 under the Independent Administration of Estates Act.” A b. Plaintiff performed maintenance, upkeep and otherwise assisted renovating Michael’s and Frances’ Condo prior to its sale on or about December 20, 2002. c. Following their appointment as Administrators ofthe Estate within the Probate Case, Gail and Tracy sold the Property to Michael and Frances in an amount equal to the net proceeds realized by Michael and Frances from the sale 0f the Condo. \DOONQU‘I d. At or about the same time, Michael and Frances obtained a new $155,000 loan 10 from Wells Fargo Bank that was secured by the Property (the “L0an”). 11 e. Michael and Frances moved into the Property at or about the same time; 12 f. Plaintiff continued performing maintenance and upkeep on the Property, 13 including front and back yard landscaping, until Michael and Frances moved into the Property; and 14 g. Michael and Frances have continued t0 use and occupy the Property as their 15 primary residence since moving in, up to and including the present day. 16 14. A dispute arose between the parties in 2018 regarding Michael’s obligation to sell 17 the Property when he retired. As a result, Plaintiff and the Hart Defendants scheduled a second 18 family meeting later that year to discuss potential options to resolve the matter. 19 15. As they tried to find a date to hold that meeting, Plaintiff and Michael exchanged a 20 series of text messages that confirmed the existence 0f the 2002 Contract and parties involved, 21 while identifying the terms in dispute. Those messages included the following: 22 23 Author Written Statement 24 Michael “I 0r Gail did not tell TracV 0r vou that vou would not get vour inheritance in the house. The agreement was that we would live in our Motherl’ls house until 25 either Fran or mvselfpassed awav. and then it would 20 t0 all three ofvou Gail. Tracy, and Fred.” 26 Plaintiff “No, that wasn't the agreement. That is the agreement Gail manipulated into your 27 mind.... You just said that we do have an inheritance as we all know. . .” 28 HORNERLAW GROUP,P.C. _ 5 _ 800 S. Broadway, Sung 200 WalnulCreck.Califomia94S96 FIRST AMENDED COMPLAINT 1 16. The aforementioned meeting between Plaintiff and the Hart Defendants was held 2 on April 14, 2018, at which time they confirmed the existence and terms 0f the 2002 Contract and 3 reached a second oral agreement (the “2018 Contract”) that contained the following essential 4 terms: 5 a. Michael agreed to take out a new loan equal t0 25% ofthe Property’s appraised 6 fair market value at that time, repayment of which would be secured by the Property; and 7 b. The funds from that new loan would be paid to Plaintiff, in exchange for: (1) 8 his agreement t0 refrain from pursuing the matter fiu‘ther; and (2) his equal, respective, undivided, 9 one-quarter interest in the Property. 10 17. Approximately four days later, Plaintiff and Gail exchanged a series of text 1 1 messages in which the terms of the 2002 and 201 8 Contracts now sought to be enforced within this 12 matter were memorialized, including the following: 13 14 Author Written Statement 15 Gail “I have thought about this quite a bit since our meeting 0n April 14th. You would be verv wise to hold offselling out vour share now. The Dronertv went un 16 $187.000 last month. If it's Dossible that V0u can work something out fun1ti1 Skin retires. vou will make much more moneV We're still waiting 0n retirement 17 papers from [Michael’s] work and TraCV is still not uD t0 Dar. Go look on the internet at Zillow for 760 EmilV Dr. And V0u will see how the Dronertv is 18 climbing. But ifV0u choose to take vour share at this time (if [Michael] and Fran can finance you. . .” 19 Plaintiff “I am glad that you are so concerned on how wise it would be me to hold off on 20 selling my share ofmy inheritance [I]f Skip can't get a equity loan it might be better to refinance....as you said the property will probably be worth $2,000,000 in 21 less than a year and climbing As agreed I am ready t0 move 0n with my life as stated at meeting I want out. If [Michael] needs another co-signer I have 22 excellent credit. . .” 23 24 18. On April 22, 201 8, Michael sent a subsequent text message to Plaintiff wherein he 25 confirmed that the 2002 Contract required the Property to be sold When he retired, but refused to 26 satisfy his obligation under the 2018 Contract. That message stated, in relevant part: 27 / / / 28 /// HORNERLAW GROUP, P.C. _ 6 _ 800 S. Broadway, Sung 200 WalnulCreck.Califomia94S96 FIRST AMENDED COMPLAINT 1 Author Written Statement 2 Michael “Fran and I have decided that we cannot refinance a loan for vour inheritance. Fran retires in August. cutting her salarV in half . .. In 5 vears 0r sooner. when I 3 retire we will sell the house and each ofus will get our inheritance then. I Will not be signing for an appraisal on this house on May 5th [0f] 2018” A 19. A similar email from Michael to Plaintiff followed on July 15, 20 1 8 (which Plaintiff is informed and believes was authored by Gail), stating, in relevant part: Fran and I discussed it and have decided [W]e cannot afford t0 finance a loan to pay your share 0f the equity. I retire 0n December 31st 2020 and the house will be put 0n the market in January 2021 . When the house sells, vou will then be Quid your eguim We also discussed taking out a personal loan and paying you $18,000.00. It would pay for your mortgage ($230/ mo) utilities ($140/ m0) and food ($300/m0) for twenty-eight months. Your $800.00 Social Security check 10 would be free and clear. The $18,000.00 would be reimbursed to us when the house is sold from your equity. .. \DOONQU‘I 1 1 . . If you are not agreeable to the above offer, the only optlon left 1s t0 take us to 12 court at your expense. 13 20. Thereafter, Plaintiff agreed t0 resolve his dispute with Michael and Frances Via 14 written agreement signed by Michael, Frances and Plaintiff on August 10, 2018 and recorded 15 against title to the Property shortly thereafter (the “Equity Agreement”). The Equity Agreement (a 16 true and correct copy 0f which is attached hereto as Exhibit A) states, in its entirety: 17 1. Frederick Hart agrees and accepts Michael Hart and Frances Ham's offer of $18,000. The $1 8,000 is an advance 0n his 1/4 (one-fourth) equity in the property 18 at 760 Emily Drive, Mountain View, California, 94043. The house will go on the market in 2021 and once sold, Frederick Hart will reimburse Michael Hart and 19 Frances Hart the $18,000 from his share of the Equity. 20 2. Frederick Hart requests that the $18,000 be paid in cash. This transaction has taken place and this letter is receipt 0f the payment. 2 1 3. Frederick Hart agrees not to contact Michael Hart or Frances Hart until the sale 22 of the above-mentioned property in 2021. At that time, Michael will contact Frederick Hart concerning the disbursement of Frederick's equity minus $18,000. 23 24 21. Plaintiff reasonably believes that Plaintiff’s interest will be materially affected by 25 this action. 26 22. Michael and Frances are currently the title owners to the Property. However, 27 pursuant to the terms of their 2002 Contract, the Hart Siblings each own equal, respective, 28 undivided, one-quarter interests in the Property. HORNERLAW GROUP, P.C. _ 7 _ 800 s. Broadway, Sung 200 WalnulCreck.Califomia94S96 FIRST AMENDED COMPLAINT 1 23. The only encumbrance on the property appearing 0frecord and otherwise known t0 2 Plaintiff or apparent from an inspection 0f the property that Plaintiff reasonably believes Will be 3 materially affected by this action is a refinance loan totaling approximately $400,000 (the 4 “Refinance Loan”) that was obtained on 0r about May 28, 2021 (approximately three months after 5 this matter was originally filed) by Michael and Frances from JP Morgan Chase Bank (“Chase 6 Bank”), Which replaced their prior Loan. 7 8 FIRST CAUSE OF ACTION 9 (For Partition and Sale 0f Real Propertv - Against All Defendants) 10 24. Plaintiff alleges and incorporates the allegations contained in paragraphs 1 through 11 23, inclusive, as through fully set forth hereinbelow. 12 25. Plaintiff requests that the Property be partitioned for sale. Partition by sale 0f the 13 Property is more equitable than division in kind because the Property is a single-family residence 14 0n a lot Where physical partition is not possible nor permissible under applicable zoning and 15 subdivision laws. 16 26. This action is brought, and partition is sought herein, for the common benefit 0f the 17 parties, t0 preserve and secure to each 0f them their respective interest and rights in the Property. 18 Plaintiffhas incurred, and will incur, costs 0f partition herein, including reasonable attorney’s fees 19 for the common benefit 0f the parties hereto, in an amount not yet ascertainable. 20 27. Plaintiff seeks reimbursement of the balance of the Refinance Loan t0 be deducted 21 from and against the partition sales proceeds 0f Michael and/or Frances. 22 23 PRAYER FOR RELIEF 24 WHEREFORE, Plaintiff prays for judgment against Defendants as follows: 25 1. For a judgment partitioning the Property by sale and dividing the proceeds 26 according to the respective rights 0f the parties, including, but not limited t0, an undivided one 27 quarter interest to Plaintiff; 28 / / / HORNERLAW GROUP, P.C. _ 8 _ 800 S. Broadway, Suite 200 Walnut Creek, California 94596 FIRST AMENDED COMPLAINT 1 2. For all expenses reasonably incurred by Plaintiff in obtaining a title report, should 2 one be necessarily obtained in this action; 3 3. For the cost of satisfying any and all fines, penalties, and fees imposed against the 4 Property as a result of actions 0r inactions 0f Defendant in causing the Property to fail t0 remain in 5 compliance with applicable ordinances; 6 4. That the costs of partition, and of this action, including reasonable counsel fees 7 expended by Plaintiff for the common benefit, fees and expenses 0f referees, and other 8 disbursements be ordered paid by the parties respectively entitled t0 share in the lands divided, in 9 proportion to their respective interest therein and more particularly that Plaintiff be reimbursed for 10 sums advanced in this regard beyond his just proportion thereof, and that the costs be included and 11 specified in the judgment and become a lien and/or reimbursement t0 Plaintiff from the several 12 shares of the parties; 13 5. For the costs of partition, including attorney’s fees, necessarily incurred by a party 14 for the common benefit in prosecuting of defending other actions 0r other proceedings for the 15 protection, confirmation and perfection of title, setting the boundaries, 0r making a survey 0f the 16 property, with interest thereon from the date or dates such expenditures are incurred; 17 6. For an award 0f attorney fees spent for the common benefit 0f all owners; and 18 7. For such other and further relief as the Court may deem proper. 1 9 20 DATED: November 19, 2021 HORNER LAW GROUP, P.C. 2 1 22 23 24 By: _ _ . firf E’ . rsq: 25 * ichael G. Klin , Esq. Attorneys for PlaintiffFREDERICK HART JR. 26 27 28 HORNERLAW GROUP,P.C. _ 9 _ 800 S. Broadway, Suite 200 Walnut Creek, California 94596 FIRST AMENDED COMPLAINT EXHIBIT A LEGAL:05000-1 476/1 28098581 ' I RECORDING REQUESTED BY NAME: [maxQHiQfiWflL E RDEDM ILT ' NAME: Law Offices 0f Steven D. Hoffman ADDRESS; 563 South Murth Avenue cm'lsmTE/zw: Sunnyvale, CA 94086 (DOCUMENT WILL ONLY BE RETURNED TO NAME 8: ADDRESS IDENTIFIED ABOVE) 24126875 Re ina fllcomendras . Sargta Clara Countx - Clerk-Recorder 03/04/2019 09:09 M CONFORMED COPY f document recorded. _ figgyngt been compared with original. (SPACE ABOVE FOR RECORDBR’S USE) AGREEMENT TO SHARE EQUITY The undersigned declares that the DOCUMENTARY TRANSFER TAX is $_zero and is an computed on the full value ofthc interest or property conveyed; OR IS 'computed on the fiJH value less value of liens or encumbrances remaining thereon at the time of saKe __.X_ this conveyance is to secure a debt (R&T 1 1921) Signature of Declarant Mail Tax Statements: Frances & Michael Hart 760 Emily Drive, Mountain View, CA 94043-2020 Agreement 1, Frederick Hart agrees and accepts Michael Hart and Frances Hart’s offer of $18,000. The $18,000 is an advance on his 1/4 (one-fourth) equity in the property at 760 Emily Drive. Mountain View, California, 94043. The house wlll go on the market ‘in 2021 and once sold, Frederick Hart will reimburse Michael Hart and Frances Hart the $18,000 from his share of the Equity. 2. Frederick Hart requests that the $18,000 be paid in cash. This transaction has taken place and this Ietter is receipt of the payment. 3. Frederick Hart agrees not to contact Michael Hart or Frances Hart until the sale of the above mentioned property in 2021. At that time, Michael will contact Frederick Hart concerning the disbursement of Frederick’s equity minus $18,000. r 5g: Michael Hart Date Wk (z Mi g/W/M/g/ Frances Hart Date ?Mflé gflh/flr‘/g ' Frederick Hart . Date SEE ATTACHED NOTARY CERTIFICATE LEGAL DESCRImON Real property In the Clw of Mountain View, County of Santa Clara, State of California, described as follows: Lot 17, tn Block 1, as shown upon the Map of Tract No. was med far record In the Office of the Recordm of the on January 13; 1953 ln Book 41 or Maps, page 31. AFN: 150-02~023 ' ARE: 15942-018 1068 Cloverdaie Terrace, which said map County of Santa Clam, State of California, CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this cenlfloate verifies only the identlty of the individual who signed the document to whloh this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of Santa Clara ) On 031 /01 20 M? before me Dennis S R0 Date Here Insert Name and Title of the Officer personally appeared M(Céfl Q/ HflV%, fif‘a M (‘eJJ’/fi V7L Name(s) of Signer(s) and frede/Ick Ha V7 who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same In hls/her/thelr authorized capacity(ies), and that by hls/her/their signature(s) on the instrument the person(s), or the entlty upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph W‘nwmmmm is true and correct. DENNIS S. R0 . . Notary Public- California WITNESS my nd and OfiICIaI seal. v Santa Clara County é ,’y‘L/ Commission a 2229084 . £0My Comm Expires Feb 1 7, ‘2022 Signature M ’ "1 WW" Signature of Notaly Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattaohment of this form to an unintended document. Description of Anached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacityfies) Claimed by Signer(s) Signer‘s Name: Signer's Name: [:1 Corporate Officer - Title(s): D Corporate Officer - Title(s): [3 Partner - E] lelted D General [:1 Partner -- D Limited D General E] Individual E} Attorney in Fact D Individual D Attorney in Fact D Trustee D Guardian or Conservator [3 Trustee D Guardian or Conservator D Other: D Other: Signer ls Representing: Signer ls Representing: ©2014 National Notary Association www. NationalNotary org 1 800 US NOTARY (1- 800-876--6827) Item #5907 HORNERLAW GROUP sun s. Emndway. Sun: zoo Walnm Creek, Califumia 94596 \OOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Case Name: Frederick Hart, Jr. v. Michael Hart, et. a1. Case N0: Santa Clara County Superior Court Case No. 21CV378991 I am employed in the County of Contra Costa, State 0f California. My business address is 800 S. Broadway, Suite 200, Walnut Creek, California 94596. I am over the age of eighteen years, and not a party t0 the within action. On November 19, 2021, I caused t0 be served the Within: FIRST AMENDED COMPLAINT on the party(ies) listed below, addressed as follows: Douglas Scott Maynard, Esq. 1 151 Minnesota Avenue San Jose, CA 95125 maynardlawoffices@earthlink.net Attorney for Defendants BV Electronic Service IC.C.P. 1010.6]. By causing a true copy thereofto be transmitted by electronic transmission t0 the attorneys shown below in accordance with C.C.P. 1010.6 and the local rules 0f the court. Executed November 19, 2021 at Walnut Creek, California. By: %W @mML Sharon Piserchio PROOF OF SERVICE PROPOSED SECOND AMENDED COMPLAINT 1 Clifford R. Homer, Esq., State Bar N0. 154353 Michael G. Kline, Esq., State Bar N0. 212758 2 HORNER LAW GROUP, P.C. 800 S. Broadway, Suite 200 3 Walnut Creek, California 94596 chomer@homerlawgroup.com 4 mkline@hornerlawgroup.com Telephone: (925) 943-6570 5 Facsimile: (925) 943-6888 6 Attorneys for PlaintiffFREDERICK HART JR. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA CLARA 10 11 FREDERICK HART JR., an individual, Case No. 21CV378991 12 Plaintiff, [PROPOSED] SECOND AMENDED COMPLAINT 13 vs. Hearing Date: 14 MICHAEL HART, an individual; FRANCES Time: HART, an individual; TRACY HART- Dept: 7 . 15 DEGREGORIO, an individual; GAIL HART, Judge= Chflstopher G- Rudy 16 ?‘n 1“?“de and DOES 1 through 50’ Action Filed: March 2, 2021me uswe’ Trial Date: N/A 17 Defendants. 1 8 19 20 21 PlaintiffFREDERICK HART, JR. (“Plaintiff’) alleges: 22 GENERAL ALLEGATIONS 23 1. The subject of this action is certain real property situated in Santa Clara County, 24 California. 25 2. The real property is commonly known as 760 Emily Drive, Mountain View, 26 California 94043 and more particularly described as follows: Lot 17, in Block 1, as shown upon 27 the Mac of Tract No. 1068 Cloverdale Terrace which said map was filed for record in the office 0f 28 the Recorder 0f the County of Santa Clara, State of California 0n January 13, 1953 in Books 41 0f HORNERLAW GROUP, P.C. 800 S. Broadway, Suite 200WMY“ [PROPOSED] SECOND AMENDED COMPLAINT 1 Maps, page 31 ; Assessor’s Parcel Number 160-02-023 (the “Property”). 2 3. Plaintiff is informed and believes and thereon alleges that Defendant MICHAEL 3 HART (“Michael”) was and is an individual residing in Santa Clara County in the State 0f 4 California. 5 4. Plaintiff is informed and believes and thereon alleges that Defendant FRANCES 6 HART (“Frances”) was and is an individual residing in Santa Clara County in the State of 7 California. 8 5. Plaintiff is informed and believes and thereon alleges that Michael and Frances are 9 married as husband and Wife. 10 6. Plaintiff is informed and believes and thereon alleges that Defendant TRACY 11 HART-DEGREGORIO (“Tracy”) was and is an individual residing and/or doing business in Santa 12 Clara County in the State of California. 13 7. Plaintiff is informed and believes and thereon alleges that Defendant GAIL A. 14 HART (“Gail”) was and is an individual residing and/or doing business in Santa Clara County in 15 the State of California (Michael, Tracy, and Gail are collectively referred to herein as the “Hart 16 Defendants”). 17 8. Plaintiff does not know the true names, capacities, basis for liability or interests in 18 the above-referenced property 0f defendants sued in this action as Does 1 through 50, and Will 19 amend this complaint when that information is discovered. Plaintiff is informed and believes and 20 0n that basis alleges that at all relevant times, each defendant, including any defendant fictitiously 21 named, claims am interest in the Property, was acting as the agent, servant, employee, partner, or 22 joint venture 0f each defendant in doing the things alleged, or is responsible in some manner for 23 the damage and disputes alleged in this complaint. 24 9. Plaintiff, Michael, Tracy and Gail are all siblings and the children 0f Ruth M. Hart, 25 deceased (“Ruth Hart”). Plaintiff, Michael, Tracy and Gail are hereinafter collectively referred to 26 as the “Hart Siblings.” 27 / / / 28 / / / HORNERLAW GROUP, P.C. _ 2 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 10. During a period 0f time that Plaintiff was estranged from his mother, Ruth Hart 2 drafted and signed a handwritten Will 0n September 2, 1986 (the “Will”), which states, in its 3 substantive entirety, “I, Ruth M. Hart, leave everything I own t0 my daughters Gail Ann Hart and/or 4 Tracy Thelma Hart.” 5 11. Plaintiff reconciled with his mother a short time later. From approximately 1989 6 through Ruth Hart’s passing in February 2002, Plaintiff lived With Ruth Hart at the Property and 7 took care ofher by assisting her with daily living activities, such as cooking meals, purchasing and 8 assisting administration ofher medications, shopping, and transporting her t0 doctor appointments. 9 Plaintiff also took care of the Property during this period by, amongst other things, performing 10 landscaping and general maintenance of the Property. 11 12. As a result of the acts alleged above, Plaintiff believed that he was entitled t0 an 12 equal 25% ownership interest in the Property after his mother passed away, notwithstanding the 13 terms of the Will. 14 13. At all times relevant, Plaintiff ensured that Defendants, Gail and Tracy were all 15 made aware 0f his belief that he was entitled to an equal 25% ownership interest in the Property, 16 as alleged above. 17 14. In or about February 2002, Plaintiff met With Michael, Gail and Tracy t0 discuss 18 Plaintiff s right and entitlement t0 an equal 25% ownership interest in the Property. It was during 19 this in-person meeting that the Hart Siblings (with Michael making all representations and 20 agreements 0n behalf 0f both himself and his Wife, Frances) reached an oral agreement that 21 included the following representations, warranties and agreements (hereinafter, the “2002 22 Contract”): 23 a. The Hart Siblings informed Plaintiff that his understanding of his ownership rights 24 to the Property was correct, and that he was, in fact, immediately entitled to an equal, respective, 25 undivided, one-quarter interest in the Property (which would thereafter be referred t0 as Plaintiff s 26 “Inheritance”); 27 / / / 28 / / / HORNERLAW GROUP, P.C. _ 3 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 b. Michael agreed that he and Frances would sell their existing residence at that time, 2 a condominium located at 765 Fair Oaks Avenue, Unit 4, Sunnyvale, California 94085 (the 3 “C0nd0”); 4 c. Plaintiff agreed to assist Michael’s and Frances’ efforts to increase the sale price for 5 their Condo by performing maintenance, upkeep and otherwise assisting in its renovation prior to 6 its sale; 7 d. Plaintiff agreed to permit Michael and Frances to encumber his 25% interest in the 8 Property by obtaining a new equity loan secured by the Property; 9 e. Plaintiff agreed t0 allow Michael and Frances t0 move into the Property and use it 10 as their primary residence, t0 his exclusion; 11 f. Plaintiff agreed to continue performing maintenance and upkeep 0n the Property, 12 including front and back yard landscaping, until such time as Michael and Frances moved in; 13 g. After moving in, Michael and Frances agreed to take full and complete 14 responsibility for any and all repairs, improvements, property taxes, insurance, and principal and 15 interest mortgage payments coming due 0n the Property and/or as needed t0 keep the Property in 16 top-quality condition; 17 h. The property would be sold When Michael retired, or by the end of 2021, Whichever 18 came first; and 19 i. Following the Property’s sale, each of the Hart Siblings would receive 25% 0f the 20 net proceeds from that sale, except that any outstanding liens against the property would be 21 deducted from Michael’s 25% share 0f the sale proceeds, Whereas Plaintiff and his sisters would 22 be entitled to 25% of the full net sale proceeds before those liens were paid off. 23 15. On March 8, 2002, Gail and Tracy filed a Petition to Administer Ruth Hart’s Estate 24 (the “Estate”), Within the matter entitled In Re Estate ofRuth M. Hart, Santa Clara Superior Court 25 Case No. 1-02-PR150962 (the “Probate Case”). Plaintiff waived his right to contest the 26 application based 0n his belief that he was entitled t0 an equal, 25% ownership interest in the 27 Property, based 0n the promises and representations alleged above, including those made Within 28 the 2002 Contract. HORNERLAW GROUP, P.C. _ 4 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 16. On April 4, 2002, the Court in the Probate Case entered an order appointing Gail 2 and Tracy as the Estate’s Administrators, with “[f]u11 authority t0 administer the [E]state under 3 the Independent Administration 0f Estates Act.” 4 17. Plaintiff is informed and believes that while he remained under the belief that he 5 was entitled to an equal 25% ownership interest in the Property, as alleged above, the Property was 6 sold by Tracy and Gail from the Estate to Michael and Frances, Without his prior knowledge or 7 consent. 8 18. Plaintiff fully performed, and Defendants partially performed under the terms ofthe 9 2002 Contract as follows: 10 a. Michael and Frances sold the Condo 0n or about December 20, 2002; 11 b. Prior thereto, Plaintiff assisted Michael and Frances’ efforts t0 increase the sale 12 price 0f their Condo by performing maintenance, upkeep and otherwise assisting in its renovation; 13 c. After selling their Condo, Michael and Frances obtained a new $ 1 55,000 loan from 14 Wells Fargo Bank that was secured by the Property (the “L0an”); 15 d. In or about 2003, Michael and Frances moved into the Property, and they have 16 continuously used and occupied the Property as their primary residence since moving in, up t0 and 17 including the present day; and 18 e. Plaintiff continued performing maintenance and upkeep 0n the Property, including 19 front and back yard landscaping, until Michael and Frances moved into the Property; 20 19. In 2018, a dispute arose between the parties regarding Michael’s obligation t0 sell 21 the Property When he retired. As a result, the Hart Siblings scheduled a second family meeting later 22 that year t0 discuss potential options t0 resolve the matter. 23 20. As they tried to find a date t0 hold that meeting, Plaintiff and Michael exchanged a 24 series of text messages that confirmed the existence and essential terms 0f the 2002 Contract and 25 parties involved, while identifying the terms in dispute. Those messages included the following: 26 / / / 27 / / / 28 / / / HORNERLAW GROUP, P.c. _ 5 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 Author Written Statement 2 Michael “I or Gail did not tell TracV 0r V0u that V0u would not get V0ur inheritance in the house. The agreement was that we would live in our MotherWS house until either 3 Fran or mvself passed aan. and then it would 20 to all three ofvou Gail. Tracv. and Fred.” 4 Plaintiff “No, that wasn't the agreement. That is the agreement Gail manipulated into your 5 mind... You just said that we do have an inheritance as we all know. . .” 6 7 2 1. The aforementioned meeting between the Hart Siblings was held on April 14, 20 1 8, 8 at which time they each confirmed the existence and terms of the 2002 Contract and reached a 9 second oral agreement (the “2018 Contract”) that contained the following essential terms: 10 a. Michael (acting on behalfofhimselfand Frances) agreed to take out a new loan 11 equal to 25% 0f the Property’s appraised fair market value at that time, repayment 0fwhich would 12 be secured by the Property; and 13 b. The funds from that new loan would be paid to Plaintiff, in exchange for: (1) 14 his agreement t0 refrain from immediately filing litigation; and (2) his equal, respective, undivided, 15 one-quarter ownership interest in the Property. 16 22. Approximately four days later, Plaintiff and Gail exchanged a series of text 17 messages in which the essential terms of the 2002 and 201 8 Contracts were further memorialized, 18 including the following: 1 9 20 21 Gail “I have thought about this quite a bit since our meeting on ADril 14th. You would be verv wise t0 hold offsetting out vour share now. The DronertV went uD 22 $187.000 last month. If it's possible that vou can work something out [unhil Skin retires. vou Will make much more moneV We're still waiting 0n retirement 23 papers from [Michael ’s] work and Tracv is still not up to par. Go look on the internet at Zillow for 760 Emilv Dr. And vou will see how the Dronertv is 24 climbing. But ifV0u choose to take vour share at this time (if [Michael] and Fran can finance you. . 25 Plaintiff “I am glad that you are so concerned on how wise it would be me to hold off on 26 selling my share ofmy inheritance [I]f Skip can't get a equity loan it might be better to refinance....as you said the property will probably be worth $2,000,000 in 27 less than a year and climbing As agreed I am ready to move on with my life as stated at meeting I want out. If [Michael] needs another co-signer I have 28 excellent credit. . .” HORNERLAWGROU'P,P.C. _ 6 _ 800 S. Broadway, Sung 200 WalnmCxeck Caliromiamsae [PROPOSED] SECOND AMENDED COMPLAINT 1 23. On April 22, 201 8, Michael sent a subsequent text message to Plaintiff wherein he 2 confirmed that the 2002 Contract required the Property t0 be sold when he retired, but refused t0 3 satisfy his obligations under the 2018 Contract. That message stated, in relevant part: 4 Author Written Statement 5 Michael “Fran and I have decided that we cannot refinance a loan for vour inheritance. Fran retires in August. cutting her salarv in half . .. In 5 vears or sooner. when I 6 retire we will sell the house and each ofus will get our inheritance then. I Will 7 not be signing for an appraisal on this house 0n May 5th [of] 2018” 8 24. A similar email from Michael to Plaintiff followed 0n July 15, 2018, stating, in 9 relevant part: 10 Fran and I discussed it and have decided [w]e cannot afford t0 finance a loan t0 11 pay your share of the equity. I retire on December 31st 2020 and the house will be put on the market in Januarv 2021. When the house sells, vou will then be 12 Quid your equigy. We also discussed taking out a personal loan and paying you $18,000.00. It would pay for your mortgage ($230/ mo) utilities ($140/ mo) and 13 food ($300/m0) for twenty-eight months. Your $800.00 Social Security check would be free and clear. The $1 8,000.00 would be reimbursed to us when the 14 house is sold from your equity. .. Ifyou are not agreeable to the above offer, the only option left is t0 take us t0 court at your expense. 1 5 16 25. Thereafter, Plaintiff consulted With an attorney and, in reliance 0n that attorneys’ 17 advice, agreed t0 resolve his dispute with Michael and Frances Via written agreement signed by 18 Michael, Frances and Plaintiff on August 10, 2018, which was recorded against the title to the 19 Property shortly thereafter (the “Equity Agreement”). The Equity Agreement (a true and correct 20 copy ofWhich is attached hereto as Exhibit A) states, in its entirety: 21 1. Frederick Hart agrees and accepts Michael Hart and Frances Hart's offer 0f $18,000. The $ 1 8,000 is an advance on his 1/4 (one-fourth) equity in the property 22 at 760 Emily Drive, Mountain View, California, 94043. The house will g0 on the market in 2021 and once sold, Frederick Hart will reimburse Michael Hart and 23 Frances Hart the $18,000 from his share 0f the Equity. 24 2. Frederick Hart requests that the $18,000 be paid in cash. This transaction has taken place and this letter is receipt 0f the payment. 25 3. Frederick Hart agrees not t0 contact Michael Hart or Frances Hart until the sale 26 of the above-mentioned property in 2021. At that time, Michael will contact Frederick Hart concerning the disbursement of Frederick's equity minus $18,000. 27 28 /// HORNERLAW GROUP, P.C. _ 7 _ 800 s. Broadway, Sung 200 WalnmCxeck Caliromiamsae [PROPOSED] SECOND AMENDED COMPLAINT 1 26. The only encumbrance on the property appearing ofrecord and otherwise known to 2 Plaintiff or apparent from an inspection of the property that Plaintiff reasonably believes Will be 3 materially affected by this action is a refinance loan totaling approximately $400,000 (the 4 “Refinance Loan”) that was obtained on 0r about May 28, 2021 (approximately three months after 5 this matter was originally filed) by Michael and Frances from JP Morgan Chase Bank (“Chase 6 Bank”), Which replaced their prior Loan. 7 FIRST CAUSE OF ACTION 8 (For Breach 0f Contract (Equity Agreement) Against Michael, Frances and DOES 1-25) 9 27. Plaintiff alleges and incorporates the allegations contained in paragraphs 1 through 10 26, inclusive, as through fully set forth hereinbelow. 1 1 28. Plaintiffhas performed all obligations required 0fhim under the terms ofthe Equity 12 Agreement. 13 29. A11 conditions required for Defendants’ performance under the terms 0f the Equity 14 Agreement have occurred. 15 30. Plaintiff is informed and believes that although Michael retired at the end 0f 2020, 16 Michael and Frances breached the Contract thereafter (and continue to do so) by failing and 17 refusing to make a good faith effort t0 sell the Property in 202 1 , failing and refusing to actually sell 18 the Property in 2021, and by further encumbering the Property’s value With the Refinance Loan. 19 3 1. As a direct and proximate cause 0f these breaches, Michael and Frances have been 20 unjustly enriched and Plaintiff has suffered damages and unconscionable injury. 21 32. Based 0n the foregoing, Plaintiff is entitled t0 an order requiring Defendants’ 22 specific performance of their obligations under the Equity Agreement, and/or t0 recover 23 compensatory, consequential, and any other damages and amounts necessary t0 compensate 24 Plaintiff for all detriment proximately caused as a result of the foregoing breaches as determined 25 by this Court in an amount according t0 proof, but no less than an amount equal to 25% 0f the fair 26 market value of the Property (Which Plaintiff is informed and believes to be approximately $1.5 27 Million as 0f the date 0f filing 0f this First Amended Complaint), less $18,000. 28 / / / HORNERLAW GROUP, P.C. _ 8 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 SECOND CAUSE OF ACTION 2 (For Breach 0f Contract (2002 Contract) Against All Defendants) 3 33. Plaintiff alleges and incorporates the allegations contained in paragraphs 1 through 4 32, inclusive, as through fully set forth hereinbelow. 5 34. Plaintiff has performed all obligations required of him under the terms of the 2002 6 Contract. 7 35. A11 conditions required for Michael’s and Frances’ performance under the terms of 8 the 2002 Contract have occurred. 9 36. Plaintiff is informed and believes that although Michael retired at the end of 2020, 10 Michael and Frances breached the 2002 Contract thereafter (and continue to do so) by failing and 11 refusing to make a good faith effort to sell the Property by the end 2021, failing and refusing t0 12 actually sell the Property by the end 0f202 1 , and by further encumbering the Property’s value with 13 the Refinance Loan. 14 37. As a direct and proximate cause 0f these breaches, Michael and Frances have been 15 unjustly enriched and Plaintiff has suffered damages and unconscionable injury. 16 38. Based on the foregoing, Plaintiff is entitled to an order requiring Defendants’ 17 specific performance oftheir obligations under the 2002 Contract, and/or to recover compensatory, 18 consequential, and any other damages and amounts necessary to compensate Plaintiff for all 19 detriment proximately caused as a result of the foregoing breaches as determined by this Court in 20 an amount according to proof, but n0 less than an amount equal t0 25% of the fair market value 0f 21 the Property (Which Plaintiff is informed and believes to be approximately $1.5 Million as of the 22 date of filing of this First Amended Complaint), less $18,000. 23 THIRD CAUSE OF ACTION 24 (For Quiet Title Against Michael, Frances and DOES 1-25) 25 39. Plaintiff alleges and incorporates the allegations contained in paragraphs 1 through 26 38, inclusive, as through fillly set forth hereinbelow. 27 40. It has been held that one Who acquires legal title through fraud has only “bare legal 28 title,” and is considered the “constructive trustee” of the property for the benefit of the defrauded HORNERLAW GROUP, P.C. _ 9 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 equitable title holder. Under these circumstances, the equitable title holder may pursue 2 a quiet title action against the “legal” title holder. Warren v. Merrill (2006) 143 Cal.App.4th 96, 3 1 13-1 14. 4 41. Pursuant thereto, and as alleged hereinabove, Defendants acquired legal title to the 5 Property through fraud as follows: 6 a. At all times relevant, Defendants were aware 0f Plaintiff’s belief that he was 7 entitled t0 an equal, respective, undivided, one-quarter ownership interest in the Property following 8 the death of his mother in February 2002. 9 b. Plaintiff is informed and believes that prior to entering into the 2002 Contract, 10 Defendants: (a) knew that Plaintiff’s aforementioned belief was mistaken, (b) knew that the 11 Property was actually bequeathed by Ruth Hart t0 Gail and Tracy and (c) Michael & Frances 12 thereafter agreed With Gail and Tracy t0 purchase the Property from them/the Estate, Without 13 Plaintiff s prior knowledge or consent. 14 c. Plaintiff is informed and believed that when they entered into the 2002 15 Contract, Defendants knowingly and intentionally concealed the foregoing facts and from Plaintiff 16 while knowingly and intentionally misrepresenting t0 Plaintiff that he held an equal, respective, 17 undivided, one-quarter ownership interest in the Property, all t0 obtain his agreement and 18 performance under the 2002 Contract, Which was in turn intended t0 prevent him from interfering 19 with Michael and Frances’ purchase of the Property from the Estate, obtaining the Loan secured 20 by the Property, and using the Property as their primary residence thereafter, t0 Plaintiff’s 21 exclusion. 22 d. Plaintiffjustifiably relied on Defendants’ misrepresentations and concealments 23 by, amongst other things: (1) entering into the 2002 Contract; (2) fillly performing thereunder and 24 (3) refraining from objecting t0 0r interfering With the undisclosed sale 0f the Property t0 25 Defendants. 26 42. Pursuant t0 Code ofCivil Procedure section 761.020, Plaintiff alleges as follows: 27 a. The Property is commonly known as 760 Emily Drive, Mountain View, 28 California 94043 and more particularly described as follows: Lot 17, in Block 1, as shown upon HORNERLAW GROUP, P.c. _ 1 0 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 the Mac of Tract No. 1068 Cloverdale Terrace which said map was filed for record in the office 0f 2 the Recorder 0f the County of Santa Clara, State of California 0n January 13, 1953 in Books 41 0f 3 Maps, page 31 ; Assessor’s Parcel Number 160-02-023. 4 b. The title of Plaintiff as to which a determination under Code ofCivil Procedure 5 section 760.010, et seq. is sought is his undivided, one-quarter ownership interest in the Property. 6 His basis for said title are the representations and agreements made by Defendants upon Which 7 Plaintiffrelied in entering into and fully performing under the 2002 Contract and Equity Agreement 8 alleged hereinabove. 9 c. The adverse claims t0 Plaintiff’s title against which a determination is sought 10 are Defendants continuing 100% ownership of the Property obtained by fraud, as alleged above, 11 their continuing failure and refusal to make a good faith effort to sell the Property (or actually do 12 so) by the end 2021, and their further encumbrance 0f the Property’s value With the Refinance 13 Loan, all of which constitutes Defendants’ breaches of the 2002 Contract and Equity Agreement. 14 d. The date as ofWhich the determination is sought is the date of filing Plaintiff” s 15 Complaint herein. 16 e. Based upon the foregoing, Plaintiff seeks relief against Defendants as more 17 particularly alleged hereinbelow. 18 FOURTH CAUSE OF ACTION 19 (For Intentional Misrepresentation Against All Defendants) 20 43. Plaintiff alleges and incorporates the allegations contained in paragraphs 1 through 21 42, inclusive, as through fully set forth hereinbelow. 22 44. During the aforementioned meeting between the Hart Siblings in February 2002, 23 Gail, Tracy and Michael told Plaintiff that his understanding 0f his inheritance rights from his 24 mother was correct, and that he was immediately entitled t0 the Inheritance in the form 0f a 25% 25 an equal, respective, undivided, one-quarter interest in the Property. 26 45. Defendants repeated the same representations 0n multiple occasions over the course 27 of the next 16 years, as alleged above. Such ongoing representations were made to Plaintiff: 28 /// HORNERLAW GROUP, P.c. _ 1 1 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 a. By Michael within a text message sent prior to the Hart Siblings April 2018 2 meeting, as alleged Within Paragraph 18, above; 3 b. By Michael, Gail and Tracy during the Hart Siblings in-person meeting in April 4 20 1 8; 5 c. Within Gail’s text message t0 Plaintiff sent on April 18, 20 1 8, as alleged Within 6 Paragraph 20, above; 7 d. Within Michael’s April 22, 2018 text message, as alleged Within Paragraph 2 1 , 8 above; 9 e. Within Michael’s July 15, 2018 email to Plaintiff, as alleged Within Paragraph 10 22, above; and 11 f. Within the August 2018 Equity Agreement signed by Michael and Frances. 12 46. Defendants made these intentional misrepresentations with knowledge 0f their 13 falsity, without reasonable grounds for believing them t0 be true, and with the intent of inducing 14 Plaintiff to enter into the 2002 Agreement, act in accordance therewith, refrain from challenging 15 the appointment 0f Gail and Tracy as administrators 0f Ruth Hart’s Estate, and to likewise prevent 16 Plaintiff from interfering with the sale of the Property by Gail and Tracy and Michael and Frances. 17 47. Specifically, Plaintiff is informed and believes, and based thereon alleges, that at 18 the time the representations were made, Defendants: 19 a. Knew that any oral promise by them to grant Plaintiff an equal, respective, 20 undivided, one-quarter interest in the Property was unenforceable until memorialized in a writing 21 signed by them; 22 b. Knew that formally selling the Property and transferring its title to Michael 23 and Frances would fithher impede Plaintiff’ s ability t0 claim any legally valid ownership interest 24 in the Property Without such a writing; 25 c. Never intended t0 provide such a writing to Plaintiff; and 26 d. Knew Plaintiff was unaware of any of the foregoing facts. 27 48. Plaintiff, a layperson lacking real estate experience, and a close family member with 28 Defendants, justifiably relied 0n Defendants’ representations t0 his detriment. In particular, and HORNERLAW GROUP, P.c. _ 1 2 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 amongst other things, Plaintiff: 2 a. Did not contest the validity of Ruth Hart’s Will, Gail and Tracy’s 3 appointment as Estate Administrators, the sale 0f the Property t0 Michael and Frances for 4 significantly less than fair market value, and/or Gail and Tracy’s receipt of 100% of the proceeds 5 from that sale from the Estate Via the Probate Case; 6 b. Took nothing in exchange for his promises made Within the 2002 Contract 7 beyond the promise 0f future payment of the value of his Inheritance when the Property was sold 8 approximately two decades later; and 9 c. Performed as agreed under the 2002 Contract thereafter. 10 49. Plaintiff s reliance was reasonable and foreseeable. 1 1 50. As a direct and proximate result ofthe Defendants” conduct, Plaintiff suffered actual 12 and special damages in an amount to be proven at trial. 13 5 1. Plaintiff is further informed and believes, and based thereon alleges, that Gail and 14 Tracy’s misrepresentations were maliciously made t0 obtain Plaintiff’ s acquiescence to their fraud. 15 Specifically, Plaintiff is informed and believes that in making these misrepresentations, Gail and 16 Tracy’s ultimate goal was to personally take as much money out ofthe Estate as possible by tricking 17 Plaintiff into helping Michael and Frances sell the Condo for as much as possible, then agreeing 18 with Michael and Frances t0 sell them the Property from the Estate for the same amount 19 (significantly less than fair market value at the time), which Gail and Tracy would then receive in 20 cash as the sole benefactors 0f the Will, Which they also tricked Plaintiff into approving While 21 simultaneously permitting the Property to be sold to Michael and Frances for as much money as 22 could be paid by Michael and Frances at that time, which would then be placed into the Estate, 23 pass through the Probate Case, and ultimately be awarded t0 each 0f them in equal 50% shares, all 24 in conscious disregard of Plaintiff s rights and without his knowledge or approval. 25 52. The conduct of the Defendants alleged herein was intentional, oppressive, 26 fraudulent, malicious, and was performed With conscious disregard 0f Plaintiff’ s rights. Plaintiff is 27 therefore entitled to punitive damages in an amount t0 be determined at trial. 28 /// HORNERLAW GROUP, P.c. _ 1 3 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 FIFTH CAUSE OF ACTION 2 (For Intentional Concealment Against All Defendants) 3 53. Plaintiff alleges and incorporates the allegations contained in paragraphs 1 through 4 52, inclusive, as through fully set forth hereinbelow. 5 54. At all times relevant, Defendants intentionally failed t0 disclose the following facts 6 t0 Plaintiff: 7 a. Plaintiff s understanding that he was entitled to the Inheritance was 8 incorrect; 9 b. Any oral promise by them to grant Plaintiff an equal, respective, undivided, 10 one-quarter interest in the Property was unenforceable until memorialized in a writing signed by 1 1 them; 12 c. Defendants never intended to provide such a writing to Plaintiff; 13 d. After being appointed by the Court in the Probate Case as administrators of 14 Ruth Hart’s Estate, Gail and Tracy sold the Property to Michael and Frances; and 15 e. Gail and Tracy received the maj ority 0f the net proceeds from that sale. 16 55. In addition, Defendants made the misrepresentations alleged within Paragraph 42 17 in order t0 prevent Plaintiff from discovering the undisclosed facts alleged Within Paragraph 52. 18 56. As a result, Plaintiff did not know of, and was prevented by Defendants from 19 discovering, the concealed facts alleged hereinabove. 20 57. Defendants intended t0 deceive Plaintiffby engaging in the conduct alleged herein; 21 58. Plaintiff, a layperson lacking real estate experience, and a close family member With 22 Defendants, justifiably relied 0n their concealments t0 his detriment. Had the omitted information 23 been disclosed to Plaintiff, Plaintiff: 24 a. Would not have refrained from contesting the validity of Ruth Hart’s Will, 25 Gail and Tracy’s appointment as Estate Administrators, the sale of the Property to Michael and 26 Frances for significantly less than fair market value, and/or Gail and Tracy’s receipt of 100% of 27 the proceeds from that sale from the Estate Via the Probate Case; 28 /// HORNERLAW GROUP, P.c. _ 1 4 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 b. Would not have performed as agreed under the 2002 Contract; and/or 2 c. Would have ensured that a 25% ownership interest in the Property was 3 transferred to him within a writing that complied with the Statute 0f Frauds and was recorded 4 against Title to the Property. 5 59. Plaintiff’ s reliance was reasonable and foreseeable. 6 60. As a direct and proximate result of the Defendants’ concealments, Plaintiff suffered 7 actual and special damages in an amount to be proven at trial. 8 61. Plaintiff is fithher informed and believes, and based thereon alleges, that Gail and 9 Tracy’s intentional concealments were maliciously made t0 obtain Plaintiff s acquiescence to their 10 fraud. Specifically, Plaintiff is informed and believes that in making these concealments, Gail and 1 1 Tracy’ s ultimate goal was to personally take as much money out ofthe Estate as possible by tricking 12 Plaintiff into helping Michael and Frances sell the Condo for as much as possible, then agreeing 13 with Michael and Frances to sell them the Property from the Estate for the same amount 14 (significantly less than fair market value at the time), Which Gail and Tracy would then receive in 15 cash as the sole benefactors of the Will, Which they also tricked Plaintiff into approving While 16 simultaneously permitting the Property to be sold to Michael and Frances for as much money as 17 could be paid by Michael and Frances at that time, Which would then be placed into the Estate, 18 pass through the Probate Case, and ultimately be awarded t0 each of them in equal 50% shares, all 19 in conscious disregard of Plaintiff’s rights and without his knowledge 0r approval. 20 62. The conduct of the Defendants alleged herein was intentional, oppressive, 21 fraudulent, malicious, and was performed With conscious disregard of Plaintiff s rights. Plaintiff is 22 therefore entitled t0 punitive damages in an amount to be determined at trial. 23 SIXTH CAUSE OF ACTION 24 (For Equitable Estoppel Against All Defendants) 25 63. Plaintiff alleges and incorporates the allegations contained in paragraphs 1 through 26 62, inclusive, as through fillly set forth hereinbelow. 27 64. Defendants made the promises and representations set forth throughout this Second 28 Amended Complaint with actual knowledge 0f their falsity. HORNERLAW GROUP, P.c. _ 1 5 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 65. Plaintiff was ignorant 0f the falsity 0f Defendants promises and representations. 2 66. Defendants made the promises and representations with the intent that Plaintiff 3 believe them and act upon such belief. 4 67. Plaintiff, a layperson lacking real estate experience, and being the sibling of 5 Defendants, justifiably relied 0n their representations t0 his detriment. In particular, and amongst 6 other things, Plaintiff refrained from contesting the validity 0f Ruth Hart’s Will, Gail and Tracy’s 7 appointment as Estate Administrators, the sale of the Property to Michael and Frances for 8 significantly less than fair market value, and/or Gail and Tracy’s receipt of 100% of the proceeds 9 from that sale from the Estate Via the Probate Case, all while Plaintiff received nothing at that time 10 except the promise of a future payment Via his equal, respective, undivided, one-quarter interest in 11 the Property. 12 68. Plaintiff s reliance was reasonable and foreseeable. 13 69. As a direct and proximate result ofDefendant's acts and omissions as above alleged, 14 Plaintiff has been damaged in an amount t0 be proven at trial, but no less than an amount equal to 15 25% of the fair market value of the Property (which Plaintiff is informed and believes t0 be 16 approximately $ 1 .5 Million as of the date of filing of this First Amended Complaint), less $ 1 8,000. 17 Accordingly, an equitable lien should be imposed 0n the Property, as security for payment of 18 Plaintiff s damages and/or liquidation of his equitable interest in the Property. 19 SEVENTH CAUSE OF ACTION 20 (For Promissorv Estoppel Against All Defendants) 21 70. Plaintiff alleges and incorporates the allegations contained in paragraphs 1 through 22 69, inclusive, as through fully set forth hereinbelow. 23 71. As set forth hereinabove, Defendants’ representations and promises regarding 24 Plaintiff’s 25% legal/equitable interest in the Property, Michael’s and Frances’ obligation t0 sell 25 the Property upon Michael’s retirement no later than the end of 2021, And their promise t0 26 distribute 25% of the net proceeds (exclusive of liens) to Plaintiff was clear and unambiguous. 27 72. As alleged herein, Defendants breached those promises. 28 / / / HORNERLAW GROUP,P.C. _ 16 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 73. As alleged herein, Plaintiff, a layperson lacking real estate experience, and being 2 the sibling of Gail and Tracy, justifiably relied upon Defendants” representations and promises t0 3 his detriment. Had they been truthful, Plaintiff: 4 a. Would not have refrained from contesting the validity of Ruth Hart’s Will, 5 Gail and Tracy’s appointment as Estate Administrators, the sale of the Property to Michael and 6 Frances for significantly less than fair market value, and/or Gail and Tracy’s receipt 0f 100% 0f 7 the proceeds from that sale from the Estate Via the Probate Case; 8 b. Would not have performed as agreed under the 2002 Contract; and/or 9 c. Would have ensured that a 25% ownership interest in the Property was 10 properly transferred to him within a writing that complied with the Statute of Frauds and was 11 recorded against Title t0 the Property. 12 74. Plaintiff s reliance was reasonable and foreseeable. 13 75. As a direct and proximate result ofDefendant's acts and omissions as above alleged, 14 Plaintiff has been damaged in an amount t0 be proven at trial, but n0 less than an amount equal t0 15 25% of the fair market value of the Property (which Plaintiff is informed and believes t0 be 16 approximately $1.5 Million as ofthe date of filing ofthis First Amended Complaint), less $18,000. 17 Accordingly, an equitable lien should be imposed 0n the Property, as security for payment of 18 Plaintiff s damages and/or liquidation of his equitable interest in the Property. 19 20 PRAYER FOR RELIEF 21 WHEREFORE, Plaintiff prays for judgment against Defendants as follows: 22 1. For an order requiring Defendants’ specific performance of their obligation to 23 immediately sell the Property and distribute 25% 0f the net proceeds therefrom, as more 24 particularly alleged above and required Within the 2002 Contract and/or Equity Agreement; 25 2. For all damages, including general, compensatory and consequential damages, 26 according to proof at the time of trial, in an amount in excess 0f the minimum jurisdiction of this 27 Court; 28 / / / HORNERLAW GROUP, P.c. _ 1 7 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 3. That it be determined that Plaintiff has good title t0 the Property in the form of an 2 equal, respective, undivided, one-quarter ownership interest, and that Defendants have n0 contrary 3 right, title, interest, or estate therein; 4 4. That Defendants be forever barred from asserting 0r claiming any contrary title or 5 interest in the Property, real or potential, choate or inchoate, Which they may now have that in any 6 way conflicts with Plaintiff s equal, respective, undivided, one-quarter ownership interest therein; 7 5. For all damages, including general, compensatory and consequential damages, 8 according to proof at the time of trial, in an amount in excess 0f the minimum jurisdiction of this 9 Court; 10 6. For restitution from Gail, Tracy and DOES 30-50 of approximately $1 10,000; 1 1 7. For punitive damages; 12 8. For imposition 0f an equitable lien against the Property 0n behalf 0f Plaintiff; 13 9. For prejudgment interest at 10% per annum; 14 10. For costs of suit incurred herein, including reasonable attorneys’ fees as permitted 1 5 by law; and 16 11. For such other and further relief as the Court deems proper. 1 7 18 DATED: January 24, 2022 HORNER LAW G OUP, P.C. 19 20 22 Ciifford R. Homer, Esq. Michael G. Kline, Esq. 23 Attorneys for PlaintiffFREDERICK HART JR. 24 25 26 27 28 HORNERLAW GROUP, P.c. _ 1 8 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNERLAW GROUP, P.C. 800 S. Broadway, Suite 200 Walnut Creek, California 94596 EXHIBIT E MAYNARD AND HOGAN PAGE 81/8211/36/2621 14: 51 14392939567 Law inces of mom ANN HOGAN c.F.L.s. Maynard & Hogan DOUGLAS SCOTT MgnrNAm:' ' - . LLJVL (Tax-uonA Professxonn] Couponman _ NAHU- w SchooiCerufied Family Law Specialist'‘Cuflflad by the State Bar “California Board of 1.53:1 Specialization AWORNEYS AT LAWSpecializing in Family Law & Taxafion _ TIE MAYNALRD 8: HOGJAN MANOR 1 15 I MmNESOTA AVENU’ESm JOSE, CALIFOMLA 95125 Telephone (408) 293-5500 Fax (408) 293-8507 November 30, 2021 VIA EACSIMILE (9251 2fi§-§_§88Clifiord R- Homer, Esq-Paymon Hifai, Esq-Horner Law Group, P.C- 800 S. Broadway, Suite 200Walnut .Creek, CA 94596 ‘ - iCK Hart Jr. v. Mic I- I "Mfiign E9: mve To Amend/Meet and.gem Dear Messrs. Hornet and Hifaj: - Thank you for your letter dated November 1,9, 2021 requesting our consent to the filingof a Second Amended Complaint. Due to the Thanksgiving Holidays, I have just now been able to review and make an initial assessment of it for comment. Let me begin by saying that your letter is very superficial and only cites legal authorityon the issues of amendments generally. It does not address any of the issues that wereconsidered to be critical by Judge Williams in her decision on. the first Demurrer. Thoseproblems continue in the proposed Second Arnended Complaint. As a result, since a dennurrerwould be granted as to a1] of those same issues on all of your proposed causes of action (including me original partition cause of action), an amendrncnt is not proper. Please revieweach of the issues where Judge Williams sustained the Dentuttrer md respond to me why youbelieve that this proposed second amended. complaint does not run afoul of those. I will respond.firther after I hear From you on those issues. In addition to t‘he issues previously litigated against you, fl-ne firaud/rnjsrepresentation causes of action lack the required specificity for you to go forward on those legal theories. Foryour reference, I am including some legal authority on the subjcct of required specificity: The Fraud Causes of Actlgn Lack the Regnired Sgecificitx. 1) The Rules of Pleading rules difler in fraud cases- The pleading rules of Iiberality are subject to at least one exception. One area that requires allegations to be made with particularity is that of‘ fiaud. Committee On Children’s Television, Inc. v. General FoodsCom. (1983) 35 Ca.1.3d 197, 216. 2) -The Purpose of Particularity. The particularity requirernent serves twopurposes. First, it provides notice to the Respondent so as to furnish the Respondent with MAYNARD AND HOGAN PAGE 82/8211/38/2621 14:51 14882938587 Clifford R. Hornet, EsqPaymon I-Iifai, Esq- November 30, 2021 Page 2 certain definite charges which can be intelligently met. Second, the pleading should be sufficientto enable the court to determine whether, on the facts pleaded, there is any foundation, primafacie at least, for the charge of fraudA 3) The “who, what, Where, when and how” of the fraud must be stated- Iri orderto plead a fraud cause of action, a Plaintiff must demonstrate the “who, what, where, when and In‘ California, fraud must be pled in the complaint specifically. General andhow” of the fraud.conclusionary allegations are not sufl‘lcient. Stansfield v. Starkey (1990) 220 Cal.App_3d 59, ‘74; Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268. Unlike most causes of action where there is a "policy of liberal construction of the pleadings,” fraud requires particularity, that is,“pleading facts that show how, when, where, to whom, and by what means the representationswere tendered." Stansflcld v. Starkey (19,90) 220 Cal.App,3d 59, 73; Lazar v. SuperiorCourt (1996) 12 Cal.4t_h 63 1, 645. Every clement ofa fiaud cause of action must be alleged both factually and specifically. Hall v. Dmetment of Adoptions (1975) 47 Cal.App.3d 898,904; Cooper v. Eguity General Insurance (1990) 2‘1 9 Cal.App.3d I 252, 1262. Your Second Arnended Complaint does not provide the necessary facts that show how,when, where, to whom, and by what means the representations were tendered. As a result, aDemurrer would clearly be sustained on filis ground, and the proposed, amendment will not beallowed by the Court. Lastly, you have not pled the essential elements for either of the estoppel causes of action. You. would need to add FACTS to support the essential elements of these causes of action, and you have not even alleged the basic elements, let alone facts to support them- I donot believe you can do so. If, however, you believe that you have already done so, please spell this out and provide legal authority' to show which facts you have pled to support the each of" the essential elements of each of those causes of action. I believe mat there are other issues with your proposed amendrnents, as well. However, in light of the Holidays and the short response time that you requested, I will have to developthose issues in the next round ofmeet and confer. Obviously, thc Sccond Amended. Complaint is deficient. I will look forward to yourcarefial and detailed reply, with citation to any legal authorities that you feel are app] icable here. In the meantime, I arm also in the process of preparing a meet and confer letter about your First Amended Complaint, which is clearly no better than the original one, and. I will definitelybe filing another Demuxrer on that version, as well, afiel- we meet and confer. Douglas Scott Maynard 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNERLAW GROUP, P.C. 800 S. Broadway, Suite 200 Walnut Creek, California 94596 EXHIBIT F MAYNARD AND HOGAN PAGE 81/8412/18/2621 28: 83 14882938587 Law oficgs' ofMOM ANN HOGAN c.F.L_s. Maynard & Hogan DOUGLAS scor'r_MAYNARDCerfifled Family Law Specialist. A Professional cammfim LL.M. (Tuanon)wcartified by me State gm: cfpeuifami. A-n-ORNEYS AT LAW - N_Y.U. Law SchoolBoard oFI-esal Specialinfion specialzm' j g in Family Law & Taxation I 15 I MINNESOTA AVENUESAN JOSE, CALIFORNIA 95125 Telephone (408) 293-8500 Fax (403) 293-8507 December 1 8, 2021 VIA FA E 925 4 Clifiord R. Homer, Esq.Paymon Hifai, Esq- Horner Law Group, P-C. 800 S- Broadway, Suite 200Walnut Creek, CA 94596 ‘ Hart Jr- v. ' Hart et 8.1. Ejgst Anxended gmlm‘ t/Second Attemp; m Mget and Conga: I Dear Messrs. Homer and Hifai: Once again, I am trying to meet and. confer with you and you are ignoring me. As you will remember, the Court sustained our Demurrer to your original complaint.Judge Wiiliarns indicated that she didn’t think you could cure the deficiencies of your firstcomplaint, but she gave you a chance to try. You arnended file complaint to supposedly cure 111:issues that were raised by my first Demurrer and sustained by Judge Williams. I-Iowever, I havealready told you, that the First Amended Complaint has the exactly the same deficiencies as theoriginal one, Le. you haven’t fixed any of the problems that causcd the Judge to sustain the I then askedAs a result, this newly arnended complaint is no better than the first one.Demmer. plaint does not have those same deficiencies,yc’u to tell me why your new First Amended Combut I have heard nothing at an fi'om you. Secondly, in addition to failing to cure the issues raised by the first Dem.urrer, your newallegations now directly contradict the VERIFIED allegations in the original complaint. As Ipointed out in the first Demurrer, this is not pemaitted. Since you have decided once again to ignore me, las part of the required meet and confer, Clearly, your amended complaintI will explain the obvious deficiencies to you in greater detail. is just as bad as the last one, and it is equally clear that you have no right to any relief whatsoeverunder your First Amended Complaint. ALLEGING NEW FACTS THAT CONTEA [2's 2T THE OEQJEAL VERIFIEDCOMPLAINT IS NOTPERW I I ED: you alleged that Plaintiff acquired his interestIn the original VERIFIED complaint, Now, you say that your client knew allthrough an. avv‘ard fiom the Probate Court. (Para. 10). MAYNARD AND HOGAN PAGE 82/8412/18/2821 26:63 14882938587 Clifford R. Homer. EsqPaymon Hifai, Esq. December 18, 2021 Page 2 along that he wasn’t awarded the property by the Probate Court, and that hc knew at the tirne thathe wasn’t ever going to be awarded the property by the Probate Court- Instead, you. now allege urt would order a sale ofthat there was an oral agreement that, even though he agreed that the Cothe property to others, and. that the entire esmte would be distributed to Gail, and Tracy, Plaintilfwould still own a onc-quarter interest in the property. In the original VERIFIED complaint, Plaintiff stated under oath that Ruth Hart diedintestate in 2002. Now he alleges that he knew that there was a Will, that the Will was ofieredfor Probate, and that he planned to allow the entire estate to be ordered distributed to Gail andTracy. I-Ie finthex- stated in that VERIFIED complaint that Gail and Tracy acted as the Executorsof Ruth Hart’s Estate, and he alleged under oath that pursuant to that Probate case Plaintiff andthe Hart Defendants were AWARDED and acquired an equal, respective undivided one-quarter interest in the Property.” These original allegations under oath are inconsistent with youx new claim that inFebruary 2002 Plaintiffknew that there was a Will, and that instead of being awarded an interestby the Probate Court, Plaintifl‘ acquired the claimed 25% interest in the property by an oral This .is very different from the claim that the courtagreement with all of the Defendants.awarded him the interest. Now, you, claim that Plaintiff orally agreed in February 2002 that hewould not object to the validit)! of the Will, mat he would not be awarded any interest in theproperty, mat the property would be sold and that t11e parties agreed that Plaintifi wasnonetheless entitled to an equal undivided, onc-quarter interest in the property‘ (AmendedComplaint ParaJZa). As I indicated in m.y previous Demurrer, inconsistent fact pleading is notpertained. On this point, I refer you to the authorities I cited in the previous Demurrer. In ruling on a demurrer, a court may take judicial notice of inconsistent statements madeby Plaintiff in. prior similar lawsuits, that Plaintiff had. voluntarily dismi ssed. And the Court may Del E. Webbdisregard conflicting factual allegafions that are made in the present complaintQorg. v. Structural Materials Co. (I981) 123 Cal.App.3d 593,604; Larson v. UHS o: RanchoSgtgggg Inc. (20.1.4) 230C31App.4"‘ 336,. 344 fiudicially noticing allegations in plaintiffs prior,voluntarily dismissed lawsuit against the saJne defendantsJ Cantu v, Resolution Trust Cora,(1992) 4 Cal.App.4“‘ 857, 877-78 [tlle principle is that oftruthful pleadingj There are other factual contradictions, as well that need to be removed- In 2018, Plaintifffiled a similar lawsuit against only his sister, Defendant Gail I-Iart. In that lawsuit, Plaintiffclaimed that he had an oral agreement (apparently only with his sister, because he didn’t sueanyone else) that he would get a 25% interest in the property, which would be given to him only Santa Clara Superior Court Aetionby his sister. I-Ie narned no other Defendants in that lawsuit.He stated that this was a gifi, Le. that there was no consideration for it. Now,#18CV337834.you. have added new allegations that there was consideration in the forrn of his assistance intaking care cf his mother, assistance in fixing up Mohacl'S condo and in maintaining thepropertjr that is subject of this actionA 'l‘hose new allegations are inconsistern: with the prioraction against Gail. MAYNARD AND HOGAN PAGE 83/ B412/18/2621 26: 63 14882938587 Clifford R. Homer, EsqPaymon Hifaj, Esq.December 18, 2021 Page 3 STATUTE OF FRAUDE; the agreements alleged in the original complaint violateAs indicated by Judge Williams, ‘Your claimed 2002the statute of frauds. You have not revised anything that would change this.oncd by the necessary wfitten memorandum, which needs to be signedoral agreement is not suppby ALL of the defendants- You have alleged no mermorandum of the 2002 agreement at all- It isthis alleged oral agreement that needs the memorandurn, because it is where your clierxt claims tohave acquired the interest in real property. To the extent you, present any written contract terms in your mended complaint, they areonly For the (2) suppOSed agreements made in 2018.] The alleged text messages that you typedinto the amended complaint do not qualify as memorandums under the statute of frauds becausethey arc not signed arld do not contain the essential terms of the agreement. As made clear in myDcmurrer, and by Judge Williarn s, the required memorandums need to include a1] of the essentialterms of the agreement. That includes a written, signed memorandum explicitly stating that yourclient Was being given a 25% interest in. the property. This memorandum needs to be signed byALL of the defendants. You have not provided any such memorandum because you don’t haveone. We know that because your client has repeatedly said so many times in court papers. JudgeWilliams was equally clear that the tcnn “parties to be charged” means ALL of the Defendants,not just one or twn of them. That is, ALL 01F the defendants need to sign the memorandurn that Idescribed ab0ve. Your newest version of the “facts" is that a1] of the I-Iart siblings were parties to the allegedAs a result, all defendants need to have signed the memorandurn that you2002 oral agreement.Your amended complaint includes no allegation that any memoranduxn exists that In addition, Judge don’t have- was signed by all of the siblings, for any of your alleged oral contracts.Williams explicitly stated that in order for the signed mernorandum to be sufficient, it needs atleast the following terrns to be included in the memorandmn: a) identify the subject of the agreement (Le. both identifi the property itself, and state thatthe 25% interest is being transferred to him);show that a contract was made to give him a 25% interest in tl'lc property;At the very least, this includes a description of b) c) state 1:11: essential tems of the agreement. the consideration that that your clieilt was giving for the agreement; and cl) it needs to be signed by Michael, Frances, Tracy and Gail. In addition, to the above, case law is clear that any agreement to transfer an interest in realproperty, or any agreei'nent that would be perforrned in more than one year, must name theand set forth the price and terms of payment with a reasonableparti es, identifir the property,degree of certainty. King v. Stanley (1948) 32 Cal.2d 584, 58.9. ' You are unclear about what you are al'leglng as to the first of these agreements, since you say it was breached cu:-rcpudiated or something, and that it was replaced by Exhibit “A". Please clarifii a5 to what you are saying about thefirst 20 1.8 “agreement." Otherwise, the uncertainty of this issue will be raised .in the demurrer, as well. MAYNARD AND HOGAN PAGE 34/ B412/18/2621 26: 63 14882938587 Clifford R. Hornet, Esq Paymon Hifai, Esq. December 18, 2021 Page 4 all, of the above need to be in the vvritten memorandumthat is signed by all of the defendants. We both know that you have no such memorandurn.Your new allegations are not adequate to sunrive a demurrer. In fact, all you did when yourevised the original complaint is add more [inconsistent] detail to the description of the oralconsisting of 2 text exchanges with Michael and I with Gail. and nowhere do you include Let me be perfectly clear for you, terrns and add 3 text messages,Nowhere do you include even a single reference to any signatures, with the exception ofthe required signed memoranduxns for any of the 3 oral agreements, dum. I know that youExhibi “A," which was already rejected as not being a valid memorancannot allege such a memorandum signed by the parties for any of these agreements becausefl-Ley do not exist. Lastly, the law is clear that the Probate Court judgment bars your client’s claims here. If hehad a claim for an inheritance, he should have made it in the Probate Court. And, there 1's noclaim for an oral agreement related to having an interest in the property, as tenns outside thosestated in the Deed are not pemissible. In conclusion, it is clear that you have no memorandum of the newly alleged 2002 oralageement. That oral agreement is invalid unless you can get past the Statute of Frauds- Yourallegations about the alleged 2018 agreements are not enough to get past the Statute of Frauds,either. Per Judg¢ Williams, the essential. tenns are not stated in Exhibit “A” because it does notshow how your client acquired his claimed 25% interest in the property. T‘he newly allegedearlier 20 l. 8 oral agreement does not cure this either. The parties to be charged [that is, A.LL of the Defendants] are not mentioned orreferenced any of the claims of written doeu including in E>chibit “A” and only 2 ofme Defendants are alleged to have signed anything, and that is Exhibit "A" which JudgeWilliarns already told you was insufficient There is no mention in any writing of transferring the Judge indicated, Exhibit “A”any interest in the propertj/ to your client. Asassumcs/ptesupposes that your client already has a 25% interest from some other agreernent, so any claims that you. have- Iit is not an adequate memorandum. Again, the Statute ofFrauds barswill await your explanation as to how you can support this, as we both know you cannot.Otherwise, I will expect a dismissal. mentation, Vet)? urs, Douglas Scott Maynard 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNERLAW GROUP, P.C. 800 S. Broadway, Suite 200 Walnut Creek, California 94596 EXHIBIT G Michael Kline From: Michael Kline Sent: Monday, January 10, 2022 1:14 PM To: maynard|awoffices@earth|ink.net Cc: Clifford Homer; Sharon Piserchio Subject: Hart v. Hart, et al. - Meet and Confer / Settlement Proposal Follow Up Mr. Maynard, | am writing in follow up to the voicemail left with your office a few minutes ago regarding our office’s response to your meet and confer correspondence regarding the content of our 1“ Amended Complaint. As explained in my message, | would like to speak with you about a proposed solution that would eliminate the need for substantive motion work while simultaneously resolving a portion of this case against your clients. Please give me a call back when you can to discuss details. Thanks, Michael G. Kline, Esq., CEDS Senior Associate Horner Law Group, PC 800 S. Broadway, Suite 200 Walnut Creek, California 94596 T: (925) 943-6570 F: (925) 943-6888 Email: mkline@hornerlawgroug.com In response to the COVID-19 Pandemic and Shelter in Place Orders, our attorneys and stafimay be working remotely. As such, receipt of correspondence by U.$. Mail, FedEx, UPS or other methods of in-person delivery may be delayed. We urge you to email any and all written communications you expect us to receive, especiallyfor time sensitive matters. Thank you. CONFIDENTIALITY NOTE: This message and attachments contain information which may be confidential and privileged. Unless you are the addressee (or authorized to receive for the addressee), you may not use, copy or disclose to anyone the message or any information contained in or attached to the message. If you have received the message in error, please advise the sender by reply email mkline@hornerlawgrou9.com and delete the message. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNERLAW GROUP, P.C. 800 S. Broadway, Suite 200 Walnut Creek, California 94596 EXHIBIT H Michael Kline From: Linda Oxford Sent: Wednesday, January 12, 2022 3:58 PM To: maynard|awoffices@earth|ink.net Cc: Michael Kline; Sharon Piserchio; Clifford Homer Subject: Hart v Hart: Meet and Confer Letter Attachments: 202201 12.M&C letter to OPC re 1AC, Motion to Amend, 2AC FlNAL.pdf Dear counsel: Please see the attached Meet and Confer letter on behalf of Mr. Kline. Thankyou. Linda Oxford, Legal Secretary HORNER LAW GROUP, P.C. 800 S. Broadway, Suite 200 Walnut Creek, CA 94596 Phone: 925.943.6570 Fax: 925.943.6888 Email: loxford@hornerlawgroup.com HLG Horner Law Group, PC MichaelG.K1ine,Esq.A T T 0 R N E Y 5 A T L A w mkline@hornerlawgroup.com January 12, 2022 PRIVILEGEDAND CONFIDENTIAL SETTLEMENT COMMUNICATION VIA ELECTRONIC MAIL Douglas Scott Maynard, Esq. Law Offices ofMaynard & Hogan 1 151 Minnesota Avenue San Jose, CA 95125 Email: maxmardlawofficeséz)earthlinknet Re: Hart v Hart, et al. Santa Clara Countv Superior Court Case N0. 21CV378991 Dear Mr. Maynard: Thank you for speaking with me this afternoon regarding your meet and confer correspondence concerning the content of our First Amended Complaint and our request for your stipulation to the filing of our proposed Second Amended Complaint. As discussed, although we disagree with the arguments raised therein, our client is more interested in finding the most expedient and cost-effective path forward for all sides involved than proceeding with duplicative causes of action that will yield identical results if successful. Although we have been authorized to make the offer 0f compromise 0f issues raised within your meet and confer letter set forth within Section II, below, we believe it is important that you review and consider our substantive analysis of some of the key arguments raised Within your meet and confer correspondence before deciding how to proceed. That preliminary analysis follows. I. Preliminary Response t0 Meet and Confer Correspondence As you know, Judge Williams’ November 10, 2021, 20-page ruling on your Demurrer to our client’s Complaint included a detailed discussion of her basis for overruling the maj ority of your arguments, while sustaining a select few. Included therein were the several relevant statements, including the following: Defendants correctly argue that the probate court‘s order establishes that Ruth M. Hart died With a will, contradicting the allegation in the complaint that Ruth Hart died intestate. (Complaint at 1] 10.) Defendants are also correct that the probate court's order indicates that only Tracy and Gail were the beneficiaries of, and received any inheritance from, Ruth Hart's estate. Thus, plaintiff, Michael, Tracy, and Gail were not each awarded an undivided one-quarter share or interest in the property as alleged in the complaint. (Ibid.) In fact, no one inherited an interest in the property as it was sold as an asset of the estate and the sale proceeds distributed per Ruth Hart's will as probated and as reflected in the Final Judgment 0f Distribution. Accordingly, plaintiffs contrary allegations in his complaint-that Horner Law Group, PC o 800 South Broadway Avenue, Suite 200 0 Walnut Creek, California 94596 Main: 925.943.6570 O Fax: 925.943.6888 0 www.hornerlawgroup.c0m Douglas Scott Maynard, Esq. Re: Hart v Hart January 12, 2022 Page 2 of 5 he received an interest in the propertv bv inheritance from Ruth Hart-must be disregarded in determining whether the complaint is subiect t0 demurrer 0n the ground offailure t0 state a cause ofaction. As you know, the First Amended Complaint filed on November 19, 2021 and [Proposed] Second Amended Complaint both correct this deficiency by removing the allegation that Plaintiff inherited any interest in the Property, as the Court very clearly stated that any such allegation must be disregarded. However, your meet and confer letter argues that any subsequent amendments conforming with judicially noticed facts cannot survive because Plaintiff is somehow bound by prior allegations that this Court has already confirmed “must be disregarded.” Of course, such a holding runs contrary to basic logic. Moreover, your summary of the allegations made within paragraph 10 of the original Complaint do not comport with their actual content. Paragraph 10 actually alleges: Ruth Hart died intestate in 2002 and Gail and Tracy acted as the Executors 0fRuth Hart’s estate wherein the Plaintiff and the Hart Defendants were awardedm acquired an equal, respective undivided one-quarter interest in the Property. Although our phrasing could have been clearer, by alleging that equal 1A interests were both awarded t0 and acquired by the parties, our intent was to convey that your clients agreed to transfer a 1A interest in the Property while simultaneously receiving approval from the Probate Court to transfer the Property from the Estate to Michael and Frances. These allegations do not conflict with anything alleged in the First or [Proposed] Second Amended Complaint. More importantly, an allegation that our client received an interest in real property is not a binding fact allegation from Which Plaintiff’s amended complaint may not deviate. Controlling law on this point is clear - While a general demurrer admits the truth of all (actual, material allegations grogerly Qled in the challenged pleading, regardless of possible difficulties of proof, this rule does not apply t0 allegations expressing mere conclusions of law, 0r allegations contradicted by matters 0fwhich judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709;Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts ofWhich a court may take judicial notice.] Finally, and perhaps most importantly, the Court in our matter went on to hold: [C]onstruing the allegations of the complaint liberally, as the court must, neither the probate documents nor the grant deed entirely negate that there was still some form of agreement entered into among plaintiff, Michael, Tracy, and Gail whereby plaintiff would at some point receive a one-quarter interest in the property or the value of such an interest. Just not the agreement as alleged. And defendants have not asserted or argued that because of the judgment entered by the probate court in the estate of Ruth M. Hart, plaintiff cannot have his alleged one-quarter interest in the property as a matter of law. Horner Law Group, PC O 800 South Broadway Avenue, Suite 200 0 Walnut Creek, California 94596 Main: 925.943.6570 0 Fax: 925.943.6888 0 www.hornerlawgroup.com Douglas Scott Maynard, Esq. Re: Hart v Hart January 12, 2022 Page 3 of 5 Within the passage quoted above, Judge Williams made clear that our client did, in fact, have the ability to amend his Complaint to allege additional facts supporting the existence 0f an enforceable contract against your clients, notwithstanding the existence 0f conflicting legal/fact conclusions as to his inheritance rights. In addition, while we appreciate your explanation of additional perceived conflicts between the allegations of the original complaint and its amended counterpart, we believe the genesis of these concerns arises from our client’s belief that his caretaking and Property upkeep efforts over the 12-year period preceding his mother’s death entitled him to inherit 1A: of the Property. As we allege in the First Amended Complaint: After Ruth Hart died in February 2002, Plaintiff met With the Hart Defendants to discuss the administration ofher estate (the “Estate”) and, in particular, his concern that his mother’s wishes at the time of her passing differed from those expressed in her Will. It was during this February 2002 meeting that Plaintiff and the Hart Defendants (with Michael agreeing 0n behalfofboth himselfand his wife, Frances) (collectively, the “Hart Siblings”) reached an oral agreement that included the following representations, warranties and agreements (hereinafter, the “2002 Contract”): a. Each 0f the Hart Defendants was immediately entitled to an equal, respective, undivided, one-quarter interest in the Property (which would thereafter be referred to as Plaintiff’s “inheritance”). At the time of the filing of the original Complaint, Plaintiff believed that his mother died Without a will, and that his oral agreement served to confirm his “inheritance” rights. After reviewing the probate court documents submitted in support of your clients’ Demurrer and the Court’s order setting forth judicially noticed facts from which he may not deviate, Plaintiff gained knowledge of these facts and amended his complaint accordingly. These changes do not conflict, however, as both complaints allege Plaintiff s prior belief that he received his IA interest Via agreement with your clients during the pendency 0f the probate case and formal administration of his late-mother’s estate and, as the Court confirmed above, “there was still some form of agreement entered into among plaintiff, Michael, Tracy, and Gail whereby plaintiff would at some point receive a one-quarter interest in the property or the value of such an interest.“ Finally, on the topic of the Statute of Frauds, we note that the Court not only overruled your demurrer arguments regarding the lack of all signatures on the written memorandum at issue, but Judge Williams went on to hold: 1 Although your meet and confer letter claims that Plaintiff s prior lawsuit against Gail Hart prohibits him from suing other parties to the same agreement was rejected by the Court in its order on your demuner. See Order, p.12 (“[T]he portions of the complaint here and those of plaintiffs prior complaint to which defendants refer are not necessarily inconsistent”) Horner Law Group, PC o 800 South Broadway Avenue, Suite 200 o Walnut Creek, California 94596 Main: 925.943.6570 0 Fax: 925.943.6888 O www.hornerlawgroup.com Douglas Scott Maynard, Esq. Re: Hart v Hart January 12, 2022 Page 4 of 5 Although the court concludes that the alleged oral agreement on which plaintiff‘s cause 0f action is based is unenforceable as now alleged in the complaint, and that the document attached as Exhibit A does not alter this conclusion, the court will nonetheless sustain the demurrer with leave to amend. Plaintiff has pleaded that there were multiple amendments t0 the parties' alleged agreement but does not state the nature or terms of those amendments. But, given the liberality afforded to pleading amendments, and because it appears that there is some possibilitv the complaint might be amended t0 cure these specified deficiencies, the demurrer is SUSTAINED with 10 days' leave to amend as to this asserted deficiency. Our Amended Complaint includes new allegations confirming the existence 0f additional writings that do, in fact, memorialize the material terms of the 2002 Agreement sought to be enforced herein. They include text messages and emails authored by Michael and Gail, all of which confirmed the existence of the parties’ 2002 Contract and the subsequent Equity Agreement between Plaintiff, Michael and Frances, all 0fwhich establish that, if nothing else, our client is entitled t0 enforce his written and recorded agreement with Michael and Frances, wherein Michael and Frances agreed to sell the property on 0r before the end of 2021, and to pay 25% of the net proceeds from that sale to our client. II. Proposed Offer 0f Compromise Notwithstanding any of the foregoing, our client intends move the court for leave to file a Second Amended Complaint that asserts several additional causes of action that were not included Within our original complaint for strategic purposes (and were prohibited from inclusion in the First Amended Complaint by Court order). As Imentioned multiple times during our call this afternoon, a motion for leave t0 file a SecondAmended Complaint does not require anv examination ofpotential grounds for demurrer; even though you disagree with their validity, we see n0 reason why a stipulation for the filing of an amended complaint that does nothing t0 your right to assert those arguments would do anything other than save time and money for all involved (particularly given the liberal policy afforded by California Courts in allowing such amendments, and the fact that we intend on filing a such a motion ifyou continue to refuse to stipulate to its filing). As discussed during our call and mentioned at the beginning of this correspondence, we have enclosed a Revised [Proposed] Second Amended Complaint that we believe provides all parties with an alternative option to expediently resolve this matter with the least amount of time spent or cost incurred by all involved. T0 this end, please allow the following to constitute Plaintiff’ s offer of compromise to resolve the various issues addressed herein: 1. Plaintiff will dismiss Tracy Hart-DeGreogrio and Gail Hart from the instant matter, Without prejudice, in exchange for their waiver of fees and costs herein; 2. The parties will stipulate to the filing 0f a Revised [Proposed] Second Amended Complaint that is limited to two causes of action for breach of contract (Equity Agreement and 2002 Contract) alleged Within the Proposed Second Amended Complaint previously provided to you, plus a third cause of action against Michael and Frances to Quiet Title; Horner Law Group, PC O 800 South Broadway Avenue, Suite 200 0 Walnut Creek, California 94596 Main: 925.943.6570 0 Fax: 925.943.6888 0 www.hornerlawgroup.com Douglas Scott Maynard, Esq. Re: Hart v Hart January 12, 2022 Page 5 of 5 Please let us know ifyou agree to the foregoing proposal by the end of business on January 17, 2022. Ifwe do not hear back by then, we will conclude that you intend to challenge the filing 0f our Motion for Leave to Amend as you confirmed during our call, and we shall proceed by seeking leave t0 file a Second Amended Complaint that includes the same three causes of action against Michael and Frances, plus others (such as fraud, equitable estoppel and promissory estoppel), against all current Defendants (including Tracy and Gail) as well. Thank you in advance for your prompt attention to this matter. Very T 1y Yours, ael G. Kllne, Esq. MGK Enclosures (1): Revised [Proposed] Second Amended Complaint cc: SEP/LO Horner Law Group, PC O 800 South Broadway Avenue, Suite 200 0 Walnut Creek, California 94596 Main: 925.943.6570 0 Fax: 925.943.6888 0 www.hornerlawgroup.com 1 Clifford R. Homer, Esq., State Bar N0. 154353 Michael G. Kline, Esq., State Bar N0. 212758 2 HORNER LAW GROUP, P.C. 800 S. Broadway, Suite 200 3 Walnut Creek, California 94596 Telephone: (925) 943-6570 4 Facsimile: (925) 943-6888 5 Attorneys for PlaintiffFREDERICK HART JR. 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA CLARA 10 11 FREDERICK HART JR., an individual, Case No. 21CV378991 12 Plaintiff, [PROPOSED] VERIFIED SECOND AMENDED COMPLAINT 13 vs. Judge: Christopher G. Rudy 14 MICHAEL HART, an individual; FRANCES Dept; . HART, an individual; and DOES 1 through AC_UOH Flledi MarCh 2, 2021 15 50, inclusive, Trlal Date: N/A 16 Defendants. 17 1 8 19 20 PlaintiffFREDERICK HART, JR. (“Plaintiff’) alleges: 21 GENERAL ALLEGATIONS 22 1. The subject of this action is certain real property situated in Santa Clara County, 23 California. 24 2. The real property is commonly known as 760 Emily Drive, Mountain View, 25 California 94043 and more particularly described as follows: Lot 17, in Block 1, as shown upon 26 the Mac of Tract No. 1068 Cloverdale Terrace which said map was filed for record in the office 0f 27 the Recorder 0f the County of Santa Clara, State of California 0n January 13, 1953 in Books 41 0f 28 Maps, page 31 ; Assessor’s Parcel Number 160-02-023 (the “Property”). HORNERLAW GROUP, P.C. 800 S. Broadway, Suite 200WMY“ REVISED [PROPOSED] SECOND AMENDED COMPLAINT 1 3. Plaintiff is informed and believes and thereon alleges that Defendant MICHAEL 2 HART (“Michael”) was and is an individual residing in Santa Clara County in the State of 3 California. 4 4. Plaintiff is informed and believes and thereon alleges that Defendant FRANCES 5 HART (“Frances”) was and is an individual residing in Santa Clara County in the State of 6 California. 7 5. Plaintiff is informed and believes and thereon alleges that Michael and Frances are 8 married as husband and Wife. 9 6. Plaintiff does not know the true names, capacities, basis for liability or interests in 10 the above-referenced property of defendants sued in this action as Does 1 through 50, and will 11 amend this complaint When that information is discovered. Plaintiff is informed and believes and 12 on that basis alleges that at all relevant times, each defendant, including any defendant fictitiously 13 named, claims am interest in the Property, was acting as the agent, servant, employee, partner, 0r 14 joint venture 0f each defendant in doing the things alleged, or is responsible in some manner for 15 the damage and disputes alleged in this complaint. 16 7. Plaintiff, Michael, third party Tracy Hart-DeGregorio (“Tracy”) and third party 17 Gail A. Hart (“Gail”) are all siblings and the children of Ruth M. Hart, deceased (“Ruth Hart”). 18 Plaintiff, Michael, Tracy and Gail are hereinafter collectively referred to as the “Hart Siblings.” 19 8. During a period 0f time that Plaintiff was estranged from his mother, Ruth Hart 20 drafted and signed a handwritten Will 0n September 2, 1986 (the “Will”), which states, in its 21 substantive entirety, “I, Ruth M. Hart, leave everything I own t0 my daughters Gail Ann Hart and/or 22 Tracy Thelma Hart.” 23 9. Plaintiff reconciled with his mother a short time later. From approximately 1989 24 through Ruth Hart’s passing in February 2002, Plaintiff lived With Ruth Hart at the Property and 25 took care ofher by assisting her with daily living activities, such as cooking meals, purchasing and 26 assisting administration ofher medications, shopping, and transporting her t0 doctor appointments. 27 Plaintiff also took care of the Property during this period by, amongst other things, performing 28 landscaping and general maintenance of the Property. HORNERLAW GROUP, P.C. _ 2 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 10. As a result of the acts alleged above, Plaintiff believed that he was entitled t0 an 2 equal 25% ownership interest in the Property after his mother passed away, notwithstanding the 3 terms 0f the Will. 4 11. At all times relevant, Plaintiff ensured that Defendants, Gail and Tracy were all 5 made aware of his belief that he was entitled t0 an equal 25% ownership interest in the Property, 6 as alleged above. 7 12. In or about February 2002, Plaintiff met with Michael, Gail and Tracy t0 discuss 8 Plaintiff’ s right and entitlement to an equal 25% ownership interest in the Property. It was during 9 this in-person meeting that the Hart Siblings (With Michael making all representations and 10 agreements on behalf of both himself and his wife, Frances) reached an oral agreement that 11 included the following representations, warranties and agreements (hereinafter, the “2002 12 Contract”): 13 a. The Hart Siblings informed Plaintiff that his understanding 0f his ownership rights 14 t0 the Property was correct, and that he was, in fact, immediately entitled t0 an equal, respective, 15 undivided, one-quarter interest in the Property (Which would thereafter be referred to as Plaintiff s 16 “Inheritance”); 17 b. Michael agreed that he and Frances would sell their existing residence at that time, 18 a condominium located at 765 Fair Oaks Avenue, Unit 4, Sunnyvale, California 94085 (the 19 “Condo”); 20 c. Plaintiff agreed to assist Michael’s and Frances’ efforts t0 increase the sale price for 21 their Condo by performing maintenance, upkeep and otherwise assisting in its renovation prior t0 22 its sale; 23 d. Plaintiff agreed t0 permit Michael and Frances to encumber his 25% interest in the 24 Property by obtaining a new equity loan secured by the Property; 25 e. Plaintiff agreed to allow Michael and Frances to move into the Property and use it 26 as their primary residence, t0 his exclusion; 27 f. Plaintiff agreed t0 continue performing maintenance and upkeep 0n the Property, 28 including front and back yard landscaping, until such time as Michael and Frances moved in; HORNERLAW GROUP, P.C. _ 3 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 g. After moving in, Michael and Frances agreed to take full and complete 2 responsibility for any and all repairs, improvements, property taxes, insurance, and principal and 3 interest mortgage payments coming due 0n the Property and/or as needed t0 keep the Property in 4 top-quality condition; 5 h. The property would be sold When Michael retired, or by the end of 2021, Whichever 6 came first; and 7 i. Following the Property’s sale, each of the Hart Siblings would receive 25% 0f the 8 net proceeds from that sale, except that any outstanding liens against the property would be 9 deducted from Michael’s 25% share 0f the sale proceeds, Whereas Plaintiff and his sisters would 10 be entitled to 25% of the full net sale proceeds before those liens were paid off. 11 13. On March 8, 2002, Gail and Tracy filed a Petition to Administer Ruth Hart’s Estate 12 (the “Estate”), Within the matter entitled In Re Estate ofRuth M. Hart, Santa Clara Superior Court 13 Case No. 1-02-PR150962 (the “Probate Case”). Plaintiff waived his right to contest the 14 application based 0n his belief that he was entitled t0 an equal, 25% ownership interest in the 15 Property, based 0n the promises and representations alleged above, including those made Within 16 the 2002 Contract. 17 14. On April 4, 2002, the Court in the Probate Case entered an order appointing Gail 18 and Tracy as the Estate’s Administrators, With “[flull authority to administer the [E]state under 19 the Independent Administration of Estates Act.” 20 15. Plaintiff is informed and believes that While he remained under the belief that he 21 was entitled t0 an equal 25% ownership interest in the Property, as alleged above, the Property was 22 sold by Tracy and Gail from the Estate t0 Michael and Frances, without his prior knowledge 0r 23 consent. 24 16. Plaintiff fully performed, and Defendants partially performed under the terms 0fthe 25 2002 Contract as follows: 26 a. Michael and Frances sold the Condo 0n or about December 20, 2002; 27 b. Prior thereto, Plaintiff assisted Michael and Frances’ efforts to increase the sale 28 price of their Condo by performing maintenance, upkeep and otherwise assisting in its renovation; HORNERLAW GROUP, P.C. _ 4 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 c. After selling their Condo, Michael and Frances obtained a new $ 1 55,000 loan from 2 Wells Fargo Bank that was secured by the Property (the “L0an”); 3 d. In or about 2003, Michael and Frances moved into the Property, and they have A continuously used and occupied the Property as their primary residence since moving in, up to and including the present day; and e. Plaintiff continued performing maintenance and upkeep on the Property, including front and back yard landscaping, until Michael and Frances moved into the Property; 17. In 2018, a dispute arose between the parties regarding Michael’s obligation to sell \DOONQU‘I the Property when he retired. As a result, the Hart Siblings scheduled a second family meeting later 10 that year to discuss potential options to resolve the matter. 11 18. As they tried t0 find a date to hold that meeting, Plaintiff and Michael exchanged a 12 series of text messages that confirmed the existence and essential terms of the 2002 Contract and 13 parties involved, While identifying the terms in dispute. Those messages included the following: 14 Author Written Statement 15 Michael “I or Gail did not tell TracV 0r vou that vou would not get vour inheritance in the house. The agreement was that we would live in our M0therf’1s house until either 16 Fran 0r mvself Dassed awav. and then it would 20 to all three of vou Gail. Tracv. and Fred.” 1 7 Plaintiff “No, that wasn't the agreement. That is the agreement Gail manipulated into your 18 mind... You just said that we d0 have an inheritance as we all know. . .” 1 9 20 19. The aforementioned meeting between the Hart Siblings was held on April 14, 20 1 8, 21 at which time they each confirmed the existence and terms of the 2002 Contract and reached a 22 second oral agreement (the “2018 Contract”) that contained the following essential terms: 23 a. Michael (acting on behalfofhimselfand Frances) agreed t0 take out a new loan 24 equal to 25% of the Property’s appraised fair market value at that time, repayment ofwhich would 25 be secured by the Property; and 26 b. The funds from that new loan would be paid t0 Plaintiff, in exchange for: (1) 27 his agreement t0 refrain from immediately filing litigation; and (2) his equal, respective, undivided, 28 one-quarter ownership interest in the Property. HORNERLAW GROUP, P.C. _ 5 _ 800 s. Broadway, Sung 200 WalnmCxeck Caliromiamsae [PROPOSED] SECOND AMENDED COMPLAINT 1 20. Approximately four days later, Plaintiff and Gail exchanged a series 0f text 2 messages in which the essential terms 0f the 2002 and 201 8 Contracts were further memorialized, 3 including the following: Author Written Statement 4 5 6 Gail “I have thought about this quite a bit since our meeting 0n April 14th. You would be verv wise t0 hold offselling out vour share now. The Dronertv went uD 7 $187.000 last month. If it's Dossible that vou can work something out [un1ti1 Skin retires. vou Will make much more moneV We're still waiting 0n retirement 8 papers from [Michael’s] work and TraCV is still not uD to Dar. Go look on the internet at Zillow for 760 EmilV Dr. And V0u will see how the DronertV is 9 climbing. But ifV0u choose to take vour share at this time (if [Michael] and Fran can finance you. . .” 10 Plaintiff “I am glad that you are so concerned on how wise it would be me to hold off on 11 selling my share ofmy inheritance [I]f Skip can't get a equity loan it might be better t0 refinance....as you said the property will probably be worth $2,000,000 in 12 less than a year and climbing As agreed I am ready t0 move 0n with my life as stated at meeting I want out. If [Michael] needs another co-signer I have 13 excellent credit. . .” 14 15 21. On April 22, 201 8, Michael sent a subsequent text message t0 Plaintiff wherein he 16 confirmed that the 2002 Contract required the Property to be sold When he retired, but refused to 17 satisfy his obligations under the 2018 Contract. That message stated, in relevant part: 18 Author Written Statement 19 Michael “Fran and I have decided that we cannot refinance a loan for vour inheritance. Fran retires in August. cutting her salarV in half . .. In 5 vears or sooner. when I 20 retire we will sell the house and each 0fus will get our inheritance then. I Will not be signing for an appraisal on this house on May 5th [of] 2018” 21 22 22. A similar email from Michael to Plaintiff followed on July 15, 2018, stating, in 23 relevant part: 24 Fran and I discussed it and have decided [w]e cannot afford t0 finance a loan t0 pay your share 0f the equity. I retire on December 31st 2020 and the house will 25 be put 0n the market in Januarv 2021. When the house sells, vou will then be Qaid your equifl. We also discussed taking out a personal loan and paying you 26 $18,000.00. It would pay for your mortgage ($230/ mo) utilities ($140/ mo) and food ($300/mo) for twenty-eight months. Your $800.00 Social Security check 27 would be free and clear. The $18,000.00 would be reimbursed t0 us When the house is sold from your equity. .. If you are not agreeable to the above offer, the 28 only option left is to take us to court at your expense. HORNERLAW GROUP,P.C. _ 6 _ 800 S. Broadway, Sung 200 WalnmCxeck Caliromiamsae [PROPOSED] SECOND AMENDED COMPLAINT 1 23. Thereafter, Plaintiff agreed t0 resolve his dispute with Michael and Frances Via 2 written agreement signed by Michael, Frances and Plaintiff on August 10, 2018, Which was 3 recorded against the title t0 the Property shortly thereafter (the “Equity Agreement”). The Equity 4 Agreement (a true and correct copy ofwhich is attached hereto as Exhibit A) states, in its entirety: 5 1. Frederick Hart agrees and accepts Michael Hart and Frances Hart's offer of $18,000. The $18,000 is an advance on his 1/4 (one-fourth) equity in the property 6 at 760 Emily Drive, Mountain View, California, 94043. The house Will g0 0n the market in 2021 and once sold, Frederick Hart will reimburse Michael Hart and 7 Frances Hart the $18,000 from his share 0f the Equity. 8 2. Frederick Hart requests that the $18,000 be paid in cash. This transaction has taken place and this letter is receipt of the payment. 3. Frederick Hart agrees not to contact Michael Hart 0r Frances Hart until the sale 10 of the above-mentioned property in 202 1. At that time, Michael will contact Frederick Hart concerning the disbursement of Frederick's equity minus $18,000. 1 1 12 24. The only encumbrance 0n the property appearing 0frecord and otherwise known to 13 Plaintiff or apparent from an inspection of the property that Plaintiff reasonably believes will be 14 materially affected by this action is a refinance loan totaling approximately $400,000 (the 15 “Refinance Loan”) that was obtained 0n or about May 28, 2021 (approximately three months after 16 this matter was originally filed) by Michael and Frances from JP Morgan Chase Bank (“Chase 17 Bank”), which replaced their prior Loan. 18 FIRST CAUSE OF ACTION 19 (For Breach 0f Contract (Equitv Agreement) Against All Defendants) 20 25. Plaintiff alleges and incorporates the allegations contained in paragraphs 1 through 21 24, inclusive, as through fully set forth hereinbelow. 22 26. Plaintiffhas performed all obligations required ofhim under the terms ofthe Equity 23 Agreement. 24 27. A11 conditions required for Defendants’ performance under the terms of the Equity 25 Agreement have occurred. 26 28. Plaintiff is informed and believes that although Michael retired at the end 0f 2020, 27 Michael and Frances breached the Contract thereafter (and continue t0 d0 so) by failing and 28 refusing to make a good faith effort t0 sell the Property in 202 1 , failing and refusing to actually sell HORNERLAW GROUP, P.C. _ 7 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 the Property in 2021, and by further encumbering the Property’s value with the Refinance Loan. 2 29. As a direct and proximate cause 0f these breaches, Michael and Frances have been 3 unjustly enriched and Plaintiff has suffered damages and unconscionable injury. 4 30. Based on the foregoing, Plaintiff is entitled to an order requiring Defendants’ 5 specific performance of their obligations under the Equity Agreement, and/or t0 recover 6 compensatory, consequential, and any other damages and amounts necessary to compensate 7 Plaintiff for all detriment proximately caused as a result 0f the foregoing breaches as determined 8 by this Court in an amount according t0 proof, but n0 less than an amount equal to 25% 0f the fair 9 market value of the Property (which Plaintiff is informed and believes t0 be approximately $1.5 10 Million as of the date of filing of this First Amended Complaint), less $18,000. 11 SECOND CAUSE OF ACTION 12 (For Breach of Contract (2002 Contract) Against All Defendants) 13 31. Plaintiff alleges and incorporates the allegations contained in paragraphs 1 through 14 30, inclusive, as through fillly set forth hereinbelow. 15 32. Plaintiff has performed all obligations required 0f him under the terms 0f the 2002 1 6 Contract. 17 33. A11 conditions required for Michael’s and Frances’ performance under the terms of 18 the 2002 Contract have occurred. 19 34. Plaintiff is informed and believes that although Michael retired at the end 0f 2020, 20 Michael and Frances breached the 2002 Contract thereafter (and continue to do so) by failing and 21 refusing t0 make a good faith effort t0 sell the Property by the end 2021, failing and refusing t0 22 actually sell the Property by the end of202 1 , and by further encumbering the Property’s value with 23 the Refinance Loan. 24 35. As a direct and proximate cause of these breaches, Michael and Frances have been 25 unjustly enriched and Plaintiff has suffered damages and unconscionable injury. 26 36. Based on the foregoing, Plaintiff is entitled to an order requiring Defendants” 27 specific performance oftheir obligations under the 2002 Contract, and/or t0 recover compensatory, 28 consequential, and any other damages and amounts necessary t0 compensate Plaintiff for all HORNERLAW GROUP, P.C. _ 8 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 detriment proximately caused as a result of the foregoing breaches as determined by this Court in 2 an amount according to proof, but n0 less than an amount equal t0 25% of the fair market value 0f 3 the Property (Which Plaintiff is informed and believes to be approximately $1.5 Million as of the 4 date of filing of this First Amended Complaint), less $18,000. 5 THIRD CAUSE OF ACTION 6 (For Quiet Title Against All Defendants) 7 37. Plaintiff alleges and incorporates the allegations contained in paragraphs 1 through 8 36, inclusive, as through fillly set forth hereinbelow. 9 38. It has been held that one Who acquires legal title through fraud has only “bare legal 10 title,” and is considered the “constructive trustee” of the property for the benefit of the defrauded 11 equitable title holder. Under these circumstances, the equitable title holder may pursue 12 a quiet title action against the “legal” title holder. Warren v. Merrill (2006) 143 Ca1.App.4th 96, 13 1 13-1 14. 14 39. Pursuant thereto, and as alleged hereinabove, Defendants acquired legal title t0 the 15 Property through fraud as follows: 16 a. At all times relevant, Defendants were aware of Plaintiff’s belief that he was 17 entitled t0 an equal, respective, undivided, one-quarter ownership interest in the Property following 18 the death of his mother in February 2002. 19 b. Plaintiff is informed and believes that prior t0 entering into the 2002 Contract, 20 Defendants: (a) knew that Plaintiff’s aforementioned belief was mistaken, (b) knew that the 21 Property was actually bequeathed by Ruth Hart to Gail and Tracy and (c) Michael & Frances 22 thereafter agreed with Gail and Tracy to purchase the Property from them/the Estate, without 23 Plaintiff’ s prior knowledge or consent. 24 c. Plaintiff is informed and believed that When they entered into the 2002 25 Contract, Defendants knowingly and intentionally concealed the foregoing facts and from Plaintiff 26 While knowingly and intentionally misrepresenting t0 Plaintiff that he held an equal, respective, 27 undivided, one-quarter ownership interest in the Property, all t0 obtain his agreement and 28 performance under the 2002 Contract, which was in turn intended to prevent him from interfering HORNERLAW GROUP, P.C. _ 9 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 with Michael and Frances’ purchase of the Property from the Estate, obtaining the Loan secured 2 by the Property, and using the Property as their primary residence thereafter, t0 Plaintiff’ s 3 exclusion. 4 d. Plaintiffjustifiably relied on Defendants’ misrepresentations and concealments 5 by, amongst other things: (1) entering into the 2002 Contract; (2) fillly performing thereunder and 6 (3) refraining from objecting t0 0r interfering With the undisclosed sale 0f the Property t0 7 Defendants. 8 40. Pursuant t0 Code ofCivil Procedure section 761.020, Plaintiff alleges as follows: 9 a. The Property is commonly known as 760 Emily Drive, Mountain View, 10 California 94043 and more particularly described as follows: Lot 17, in Block 1, as shown upon 11 the Mac of Tract No. 1068 Cloverdale Terrace Which said map was filed for record in the office 0f 12 the Recorder of the County 0f Santa Clara, State 0f California on January 13, 1953 in Books 41 of 13 Maps, page 31 ; Assessor’s Parcel Number 160-02-023. 14 b. The title of Plaintiff as t0 which a determination under Code ofCivil Procedure 15 section 760.010, et seq. is sought is his undivided, one-quarter ownership interest in the Property. 16 His basis for said title are the representations and agreements made by Defendants upon which 17 Plaintiffrelied in entering into and fully performing under the 2002 Contract and Equity Agreement 18 alleged hereinabove. 19 c. The adverse claims to Plaintiff’s title against which a determination is sought 20 are Defendants continuing 100% ownership of the Property obtained by fraud, as alleged above, 21 their continuing failure and refusal t0 make a good faith effort t0 sell the Property (0r actually do 22 so) by the end 2021, and their further encumbrance of the Property’s value with the Refinance 23 Loan, all of which constitutes Defendants’ breaches of the 2002 Contract and Equity Agreement. 24 d. The date as 0f Which the determination is sought is the date of filing of this 25 Second Amended Complaint. 26 e. Based upon the foregoing, Plaintiff seeks relief against Defendants as more 27 particularly alleged hereinbelow. 28 / / / HORNERLAW GROUP, P.c. _ 1 0 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 1 PRAYER FOR RELIEF 2 WHEREFORE, Plaintiff prays for judgment against Defendants as follows: 3 ON THE FIRST AND SECOND CAUSES OF ACTION 4 1. For an order requiring Defendants’ specific performance of their obligation to 5 immediately sell the Property and distribute 25% 0f the net proceeds therefrom, as more 6 particularly alleged above and required Within the 2002 Contract and/or Equity Agreement; 7 2. For all damages, including general, compensatory and consequential damages, 8 according to proof at the time of trial, in an amount in excess 0f the minimum jurisdiction of this 9 Court; 10 ON THE THIRD CAUSE OF ACTION 11 3. That it be determined that Plaintiff has good title t0 the Property in the form 0f an 12 equal, respective, undivided, one-quarter ownership interest, and that Defendants have no contrary 13 right, title, interest, 0r estate therein; 14 4. That Defendants be forever barred from asserting 0r claiming any contrary title 0r 15 interest in the Property, real 0r potential, choate 0r inchoate, Which they may now have that in any 16 way conflicts with Plaintiff s equal, respective, undivided, one-quarter ownership interest therein; 17 ON ALL CAUSES OF ACTION 18 5. For costs 0f suit incurred herein, including reasonable attorneys’ fees as permitted 1 9 by law; 20 6. For prejudgment interest at 10% per annum; and 21 7. For such other and further relief as the Court deems proper. 22 23 DATED: HORNER LAW GROUP, P.C. 24 25 26 By: 27 Clifford R. Homer, Esq. Michael G. Kline, Esq. 28 Attorneys for PlaintiffFREDERICK HART JR. HORNERLAW cnoup,p.c. _ 11 _ 800 S. Broadway, Suite 200 WalnutCreek,Califomia94596 [PROPOSED] SECOND AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNERLAW GROUP, P.C. 800 S. Broadway, Suite 200 Walnut Creek, California 94596 EXHIBIT I Michael Kline From: Maynard Law Offices Sent: Wednesday, January 19, 2022 5:35 PM To: Michael Kline Subject: Your Proposed Second Amended Complaint Dear Mr. Kline, My clients, Gail and Tracy, would like to know why you did not propose that they be dismissed with prejudice. If there is a dismissal without prejudice, it seems that you could just add them back at any time. So the suggestion that they would get something from your offer seems illusory. In addition, | would like to confirm that the last day for me to file a responsive pleading is Monday January 24, 2022. As | stated in my last Meet and Confer Declaration, | never received electronic service of the Amended Complaint, although | did receive one in the mail. The proof of service that you filed in court is ambiguous, in that while it claims it was served electronically, the address it was served to is my physical address. As a result, my assumption is that your assistant mailed it and used the wrong form. My calculation is that, if it were served electronically, it would be due on January 20, and if served by mail it would be due on January 24. Please confirm. Douglas Scott Maynard Sent from Mail for Windows 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNERLAW GROUP, P.C. 800 S. Broadway, Suite 200 Walnut Creek, California 94596 EXHIBIT J Michael Kline From: Michael Kline Sent: Wednesday, January 19, 2022 5:42 PM To: Maynard Law Offices Cc: Clifford Homer; Sharon Piserchio Subject: RE: Your Proposed Second Amended Complaint (Hart v Hart) Mr. Maynard, While we continue to disagree regarding electronic service issues in this case, Iwould rather not waste time engaging in further debate on the topic. To ensure there is no dispute, we will stipulate that the deadline to file a responsive pleading is January 24th, regardless of whether electronic service was proper (which we believe it was) or not. That said, If we are unable to reach an agreement on the filing of a revised second amended complaint, we will be filing a motion to amend on or before the 24th. You therefore do not need to spend time drafting a responsive pleading to the 1“ Amended Complaint. As far as our proposal is concerned, please let me know if Defendants are offering to waive costs and fees, and stipulate to the filing of a 2nd Amended Complaint against Michael and Frances only for breach of contract and quiet title, if Plaintiff dismisses Gail ad Tracy from the pending First Amended Complaint with prejudice prior to the filing of that 2nd Amended Complaint. If so, I will bring your counteroffer to my client for his consideration. Thank you, Michael G. Kline, Esq., CEDS Senior Associate Homer Law Group, PC 800 S. Broadway, Suite 200 Walnut Creek, California 94596 T: (925) 943-6570 F: (925) 943-6888 Email: mkline@hornerlawgroug.com In response to the COVID-19 Pandemic and Shelter in Place Orders, our attorneys and staffmay be working remotely. As such, receipt of correspondence by U.$. Mail, FedEx, UPS or other methods of in-person delivery may be delayed. We urge you to email any and aII written communications you expect us to receive, especiallyfor time sensitive matters. Thank you. CONFIDENTIALITY NOTE: This message and attachments contain information which may be confidential and privileged. Unless you are the addressee (or authorized to receive for the addressee), you may not use, copy or disclose to anyone the message or any information contained in or attached to the message. If you have received the message in error, please advise the sender by reply email mkline@hornerlawgroug.com and delete the message. From: Maynard Law Offices Sent: Wednesday, January 19, 2022 5:35 PM To: Michael Kline Subject: Your Proposed Second Amended Complaint Dear Mr. Kline, My clients, Gail ancl Tracy, would like to know why you did not propose that they be dismissed with prejudice. If there is a dismissal without prejudice, it seems that you could just add them back at any time. So the suggestion that they would get something from your offer seems illusory. In addition, | would like to confirm that the last day for me to file a responsive pleading is Monday January 24, 2022. As | stated in my last Meet and Confer Declaration, | never received electronic service of the Amended Complaint, although | did receive one in the mail. The proof of service that you filed in court is ambiguous, in that while it claims it was served electronically, the address it was served to is my physical address. As a result, my assumption is that your assistant mailed it and used the wrong form. My calculation is that, if it were served electronically, it would be due on January 20, and if served by mail it would be due on January 24. Please confirm. Douglas Scott Maynard Sent from Mail for Windows 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNERLAW GROUP, P.C. 800 S. Broadway, Suite 200 Walnut Creek, California 94596 EXHIBIT K Begin forwarded message: From: no-reply@efi|ingmai|.tylertech.c|oud Date: January 23, 2022 at 6:55:15 PM PST To: Clifford Horner Subject: Notification of Service for Case No. 21CV378991 (Frederick Hart, Jr. vs Michael Hart et al) Notification of Service Envelope Number: 8117288 This is a notification of service for the filing listed. Please click the link below to retrieve the submitted document. ‘ Filing Details | Ese Number 21CV378991 | Ease Style Frederick Hart, Jr. vsfiiéhael Hart et al ‘ Date/Time Submitted 1/23/2022 6:54 PM PST Filing Type Declaration Filed By DOUGLAS MAYNARD Michael Hart: semce “mac‘s DOUGLAS MAYNARD (maynardIawofiices@earthlink.net) Frederick Hart JR: Michael Kline (mkline@horerlawgroup.com) Sharon Piserchio (spiserchio@hornerlawgroup.com) Other Service Contacts not associated with a party on the case: Clifford Horner (chorner@hornerlawgroup.com) Document Details . VView Stamped Document F"e Stamped c°py lThis link is active for 45 days. ODYSSEY'fl eFIIeCA Please do not reply to this email. It was generated automatically. California EFiling Disclaimer: This is an official government communication. As the recipient, you are responsible for the lawful use of this information. This e-mail and any attachments are intended solely for the individual or agency to which they are addressed. They may be confidential and/or contain privileged or otherwise non-public information. D0 not disseminate this e-mail and any attachments unless you are authorized to do so under applicable court rules or statutes. If you are not the intended recipient of this e-mail, do not copy, distribute, or take any action in reliance upon this e-mail or any attachments and delete this e-mail and any attachments immediately. Please consider the environment before printing this e-mail. 5\DOO\IO\(.II-l>bJI\) ,_. _. »->--»-n--n-n»--»--- 0€\l0’\UI-l>LoJl\) -- \D DOUGLAS SCOTT MAYNARD (SBN 90649) LAW OFFICES OF MAYNARD & HOGAN 1151 Minnesota Avenue San Jose, CA 95125 Telephone: (408) 293-8500 Facsimile: (408) 293-8507 Attorney for Defendants Michael Hart, Frances Hart, Tracy Hart-DeGregorio and Gail Hart SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA Plaintiff, Case No: 21 CV3 78991 FREDERICK HART, JR MEET AND CONFER DECLARATION RE DEMURRER TO AMENDED COMPLAINT Defendants, MICHAEL HART, FRANCES HART, TRACY HART-DEGREGORIO and GAIL HART MEET AND CONFER DECLARATION RE DEMURRER I am counsel for the Defendants in the above referenced matter. I declare that the following matters are true and correct and that I have personal knowledge of each of them. If called to testify with regard to the matters stated herein, I could and would do so competently. 1. Due Date For Responsive Pleading Extended To Janua1_'y 24, 2022. I received the current operative pleading, an Amended Complaint dated November 19, 2021, from the Defendants by mail on about November 22, 2021. I did not receive a copy by electronic service, even though it is required to be sent to my email address, maynardlawoffices@ear1hlink.net, and the form used for the MEET AND CONFER DECLARATION RE DEMURRER TO AMENDED COMPLAINT Hart v. Hart, et al. Case No. 21CV378991 1 \DOO\IO\UI-I:-UJIQ 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 proof of service was for electronic service. However, the form says that the Amended Complaint was served to my physical address and not to an electronic address, as required. Plaintiffs counsel agreed at my request that the due date for filing a responsive pleading was January 24, 2022 to resolve this issue. 2. Initial Meet And Confer. After I received the Amended Complaint, I reviewed it to determine how we should respond to it. Upon review of the Amended Complaint, I determined that it is subject to the same deficiencies as the original complaint, as well as some new improper factual inconsistencies that have been added, and other issues related to the changed allegations, and I told Plaintiffs counsel that I plarmed to demur to it if we could not resolve those issues. I initially contacted counsel for the plaintiff, and told him that the Amended Complaint had the same defects as in the original complaint, where the Demurrer was sustained. I asked him to provide me with the reasons why he thought he had cured those issues, and offered to respond to his comments. I never received any reply to that communication. 3. Follow Up Letter After No Response. Since there was no response to my initial attempt to discuss the issues, I sent another letter to Plaintiffs counsel by fax transmission on December 18, 2021, pointing out that the Amended Complaint imperrnissibly contradicted facts alleged in the original VERIFIED Complaint and that the claims still violated the Statute of Frauds. My letter contained argument and legal authority on those issues, in addition to the information from the last Demurrer. Like the first letter, I received no response to this letter for several weeks, so I began to prepare a Demurrer to file with the Court. 4. Abusive Replv Letter With N o Substantive Response On Meet And Confer On January 5, 2022, I received an extremely abusive email from Plaintiffs counsel that informed me that other attorneys in his firm would be handling the case going forward, and that he MEET AND CONFER DECLARATION RE DEMURRER TO AMENDED COMPLAINT Hart v. Hart, et al. Case No. 21CV37899l 2 \DOO\lO'\UIJ> 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was apparently not going to be working on the case anymore. In that email, as his parting shot, the attorney (Paymon Hifai) went on for a full page calling me names and using adjectives to refer to me and my professional behavior as “repugnant, bizarre and juvenile outbursts, unhinged, foul, juvenile and bizarre behavior and nonsense” among others. I can assure the Court that my behavior has always been polite and professional in this case, and that these comments were entirely unwarranted. This was not the first time this attorney had been abusive to me, but at least, he was not going to continue working on the case. There was no response to my meet and confer letter included. 5. With no Meet And Confer Response, I Continued Working On The Demurrer. In light of that abusive response from opposing counsel, and having received no substantive response to my meet and confer letter, I continued work on preparing the demurrer. 6. Meet And Confer Response From A Different Attornev In Plaintiffs Counsel’s Late in the afternoon on January 12, 2022, I finally did receive a response to my meet and confer letter from another attomey in the firm. Although, the letter was appropriate in tone, and simply presented arguments as I would expect from another attorney, the response did not accept a single thing I said. Instead, it just argued that everything in the Amended Complaint was just fine. 7. Offer To Drop The Entire Partition Action And Replace It With Fraud And Breach Of Contract Causes Of Action. Opposing counsel’s meet and confer letter did contain a proposal to withdraw the current Amended Complaint, and withdraw the single cause of action for Partition. However, it requested that my clients stipulate to the filing of a proposed Second Amended Complaint with similar problems to the current Amended Complaint and there were other monetary conditions of this proposal that I did not agree with. The newly presented Second Amended Complaint was different than one that had been given to me in November, and I believe that both versions have problems that are subject to all of the same deficiencies that exist with the pending MEET AND CONFER DECLARATION RE DEMURRER TO AMENDED COMPLAINT Hart v. Hart, et al. Case No. 21CV378991 3 OO\lC\UI-5 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Amended Complaint. As a result, I believe that we would not progress in the case by permitting either of these versions to be filed, and instead those proposed amended complaints would just prolong the challenges to the complaints, none of which revised versions of the claims are viable. 8. Plaintiffs Counsel Concedes That The Partition Action Is Not Likely To Withstand Demurrer. As a result, I called Plaintiff’ s counsel the same day to discuss the matter. In that call, he acknowledged that the Partition cause of action would likely not withstand a Demurrer, but since we were not able to agree on the terms for adding new causes of action we deadlocked on resolving the matter. 9. Completion of Demurrer. After that call, and in reviewing the letter, I could see that this was just going to be a matter that needed to be presented to the Court, so I finished preparing the Demurrer and am submitting it with this Meet and Confer Declaration. 10. My Willingness To Continue Discussions. The deficiencies in the Amended Complaint are susceptible to a demurrer, and I am now demurring since I was unable to obtain Plaintiffs counsel’s agreement to dismiss the single cause of action and/or agree to again amend the Amended Complaint to cure them. Should Plaintiffs counsel wish to simply dismiss the complaint, I would be willing to discuss that with him at any time before the hearing on the upcoming Demurrer. I hereby declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed on January 21, 2022 at San Jose, California. Dated: January 21, 2022 Attorney for Defendants MEET AND CONFER DECLARATION RE DEMURRER TO AMENDED COMPLAINT Hart v. Hart, et al. Case No. 21CV37899l 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNERLAW GROUP, P.C. 800 S. Broadway, Suite 200 Walnut Creek, California 94596 EXHIBIT L 21 CV378991 Frederick Hart, Jr. vs Michael Hart et al Case Information Case Type: Other Real Property Unlimited (26) Case Number: 21 CV378991 Filing Date: 3/2/2021 Case Status: Active Court Location: Civil PARTIES Show All V entries A Type First Name Defendant Michael Defendant Frances Defendant Gail Defendant Tracy Plaintiff Frederick Showing 1 to 5 of 5 entries Attorneys Show A|| V entries Search: Middle Name Previous Search: N ext Las He He Ha He He A Representing First Name Middle Name Frederick Hart Paymon Michael Hart Douglas S. Michael Hart Douglas S. Michael Hart Douglas S. Michael Hart Douglas S. Showing 1 to 5 of 5 entries Previous 1 Next < » Show Search: A|| V entries v File Date File Type Filed By Comment 1/1 9/2022 Application for Refund Michael Hart, $1305.00 - FAF charged twice in error er Frances Hart, Gail Hart, Tracy Hart- Degregoria, 12/20/2021 Declaration Michael Hart, Meet & Confer Re; Demurrer to FAC. Frances Hart, Gail Hart, Tracy Hart- Degregoria, 11/19/2021 Amended Complaint Frederick Hart, 1st Amended Filed - No Fee 11/18/2021 Minute Order 11/1 2/2021 Response/Reply Frederick Hart, Response of Horner Law Group PC to O 11/10/2021 Order: Submitted Re 11-02-21 Demurrer to Verified Comp Matter v File Date 11/10/2021 11/3/2021 11/3/2021 11/2/2021 11/1/2021 10/28/2021 10/26/2021 10/26/2021 10/26/2021 10/20/2021 10/20/2021 10/20/2021 File Type Order: Submitted Matter Minute Order Minute Order Notice Declaration Proof of Service: Electronic Response/Reply Response/Reply Declaration Opposition/Objections Declaration Opposition/Objections Filed By Frederick Hart, Michael Hart, Frances Hart, Gail Hart, Tracy Hart- Degregoria, Frederick Hart, Michael Hart, Frances Hart, Gail Hart, Tracy Hart- Degregoria, Michael Hart, Frances Hart, Gail Hart, Tracy Hart- Degregoria, Michael Hart, Frances Hart, Gail Hart, Tracy Hart- Degregoria, Frederick Hart, Frederick Hart, Frederick Hart, Comment Re 11-02-21 Mtn for Sancts Frederick HartJrs Notice of Withdrawal of Default of Defendants and For an Co Meet and Confer Declaration Re Demur Complaint and Request to Vacate Heari 2nd Supp Decl of D. Maynard Reply Reply Declaration 11-2-21 9AM DEPT.7 Plaintiffs Oppositio Motion for Sanctions Declaration of Paymon Hifai ISO 11-2-21 9am dept.7 Plt's Opposition to[ v File Date File Type Filed By Comment 10/1/2021 Proof of Service: Mail Michael Hart, Hrg 11-02-21 Ntc of Hearing on Demurr Frances Hart, Gail Hart, Tracy Hart- Degregoria, 10/1/2021 Proof of Service: Mail Michael Hart, Hrg 11-02-21 D7 Mtn for Sancts Frances Hart, Gail Hart, Tracy Hart- Degregoria, 8/1 8/2021 Memorandum: Points Frederick Hart, Memorandum of Points & Authorities and Authorities 8/1 8/2021 Declaration: In Frederick Hart, Declaration/Affidavit Support 8/18/2021 Motion: Other Frederick Hart, Hrg 1-06-2022 D7 , RE: ENTRY OF DEFAL DEFENDANTS/ORDER STRIKING THE ME DECLARATION 7/16/2021 Motion: Sanctions Michael Hart, Hrg 11-02-21 D7 by defendants Harts, tl Frances Hart, Gail Hart, Tracy Hart- Degregoria, 7/16/2021 Memorandum: Points Michael Hart, Memorandum of Points & Authorities and Authorities Frances Hart, Gail Hart, Tracy Hart- Degregoria, Showing 1 to 25 of 48 entries Previous 1 2 Next < > HEARINGS Show Search: All V entries Department Type v Date Time Department Type v Date Time Department 7 Conference: Further Case Management 4/1 2/2022 10:00 Department 7 Hearing: OSC Dismissal Failure to Appear 11/1 8/2021 10:00 Department 7 Motion: Sanctions 11/2/2021 9:00A Department 7 Hearing: Demurrer 11/2/2021 9:00A Department 7 Conference: Case Management 7/1 3/2021 2:1 5P Showing 1 to 5 0f 5 entries Previous 1 Next < > 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNERLAW GROUP, P.C. 800 S. Broadway, Suite 200 Walnut Creek, California 94596 EXHIBIT M 1 Clifford R. Homer, Esq., State Bar No. 154353 Michael G. Kline, Esq., State Bar No. 212758 2 HORNER LAW GROUP, P.C. 800 S. Broadway, Suite 200 3 Walnut Creek, California 94596 Telephone: (925) 943-6570 4 Facsimile: (925) 943-6888 5 Attorneys for PlaintiffFREDERICK HART JR. 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA CLARA 10 1 1 FREDERICK HART JR., an individual, Case No. 21CV378991 12 Plaintiff, MS [PROPOSED] SECOND AMENDED 13 vs. COMPLAINT 14 MICHAEL HART, an individual; FRANCES Judge: Christopher G. Rudy HART, an individual; TRACY HART- Dept: 7 15 DEGREGORIO, an individual; GAIL HART, ?Qtingilédr mich 2, 2021 16 anindividual, and DOES 1 through 50, “a ate- inclusive, 17 Defendants. 18 | 19 20 21 22 PlaintiffFREDERICK HART, JR. (“Plaintiff”) alleges: 23 GENERAL ALLEGATIONS 24 1. The subject of this action is certain real property situated in Santa Clara County, California. 25 26 2. The real property is commonly known as 760 Emily Drive, Mountain View, 27 California 94043 and more particularly described as follows: Lot 17, in Block 1, as shown upon 28 the Mac of Tract No. 1068 Cloverdale Terrace which said map was filed for record in the office 0f HORNER LAW GROUP, P.C. son s Broadway, Sane zoo Walnut Cxeek, Califumia 94596 KOOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNER LAW GROUP, EC. 800 S. Broadway, Suite 200 Walnut Creek, Caliromia 94196 the Recorder of the County of Santa Clara, State of California on January 13, 1953 in Books 41 0f Maps, page 3 1; Assessor’s Parcel Number 160-02-023 (the “Property”). 3. Plaintiff is informed and believes and thereon alleges that Defendant MICHAEL HART (“Michael”) was and is an individual residing in Santa Clara County in the State of California. 4. Plaintiff is informed and believes and thereon alleges that Defendant FRANCES HART (“Frances”) was and is an individual residing in Santa Clara County in the State of California. 5. Plaintiff is informed and believes and thereon alleges that Michael and Frances are married as husband and wife. 6. Plaintiff is informed and believes and thereon alleges that Defendant TRACY HART-DEGREGORIO (“Tracy”) was and is an individual residing and/or doing business in Santa Clara County in the State of California. 7. Plaintiff is informed and believes and thereon alleges that Defendant GAIL A. HART (“Gail”) was and is an individual residing and/or doing business in Santa Clara County in the State of California (Michael, Tracy, and Gail are collectively referred t0 herein as the “Hart Defendants”). 8. Plaintiff does not know the true names, capacities, basis for liability or interests in the above-referenced property of defendants sued in this action as Does 1 through 50, and will amend this complaint when that information is discovered. Plaintiff is informed and believes and on that basis alleges that at all relevant times, each defendant, including any defendant fictitiously named, claims am interest in the Property, was acting as the agent, servant, employee, pattner, 0r joint venture 0f each defendant in doing the things alleged, 0r is responsible in some manner for the damage and disputes alleged in this complaint. 9. Plaintiff, Michael, Tracy; and Gail are all siblings and the children 0f Ruth M. Hart, deceased (“Ruth Hart”). Plaintiff, Michael, Tracy and Gail are hereinafter collectively referred to as the “Hart Siblings.” / / -2- F-IRS¥ |PROPOSED| SECOND AMENDED COMPLAINT OOQQ KO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNER LAW GROUP, EC. 800 S. Broadway, Suite 200 Walnut Creek, Caliromia 94196 10. During a period 0f time that Plaintiff was estranged from his mother, Ruth Hart drafted and signed a handwritten will 0n September 2, 1986 (the “Will”), which states, in its substantive entirety, “I, Ruth M. Hart, leave everything I own to my daughters Gail Ann Hart and/or Tracy Thelma Hart.” 11. Plaintiff reconciled with his mother a short time later.WM approximately 1989 through herRuth Hart’s passing in February 2002, Plaintiff lived with Ruth Hart at the Property and took care 0fR&th-H-afim by assisting her with sueh-daily living activities; m as cooking meals, purchasing and assisting administration 0f her medications, shopping, and transporting her to doctor appointments. Plaintiff also took care of the Property during this period by, amongst other things, performing landscaping and general maintenance of the Property. 12. Afier-Ruth-H-aft-diedAs a result 0f the acts alleged above, Plaintiff believed that he was entitled to an equal 25% ownership interest in the Property after his mother passed awav, notwithstanding the terms of the Will. 13. At all times relevant, Plaintiff ensured that Defendants, Gail and Tracy were all made aware of his belief that he was entitled to an equal 25% ownership interest in the Property, as alleged above. 11-2714. In or about February 2002, Plaintiffmet with theH-aft-DefendafltsMichael Gail and Tracy to discuss - - . - Plaintiff‘s right and entitlement to an equal 25% ownership interest in her-‘Vrflthe Property. It was during this Febmaw 2002in-person meeting that PhintHd-the Hart DekadanfsSiblings (With Michael agreeiflgmaking all representations and agreements on behalfofboth himselfand his wife, Frances)WWW reached an oral agreement that included the following representations, warranties and agreements (hereinafter, the “2002 Contract”): a. Eaeh-ef-Eh&HaH-Defendafis-wasThe Hart Siblings informed Plaintiff that his understanding 0f his ownership rights t0 the Property was correct, and that he was, in fact, immediately entitled to an equal, respective, undivided, one-quarter interest in the Property (which would thereafter be referred to as Plaintiff’s “i-nhefitafieeiflnheritance” 2; -3- F-IRS¥ |PROPOSED| SECOND AMENDED COMPLAINT OOQQ KO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNER LAW GROUP, EC. 800 S. Broadway, Suite 200 Walnut Creek, Caliromia 94196 /// \ \ \ ab. Michael agreed that he and Frances would sell their existing residence at that time, a condominium located at 765 Fair Oaks Avenue, Unit 4, Sunnyvale, California 94085 (the “Condogrfi; d:c._Plaintiffweu4dagreed t0 assist Michael’s and Frances’ efforts to increase the sale price for their Condo by performing maintenance, upkeep and otherwise assisting in its renovation prior to its sale.-; sel-l-Plaintiff agreed to permit Michael and Frances to encumber his 25% interest in the Property £6 .byMehael-afid-FPanees-frem #H fid. Mehael-and-anees-wekfld-thefl-ebmflobtaining a new equity loan secured by the Propertyg g-.e. Plaintiff agreed to allow Michael and Frances weu4dt_o move into the Property and use it as their primary residence: to his exclusion‘ h:f._Plaintiff weefldagreed t0 continue performing maintenance and upkeep on the Property, including front and back yard landscaping, until such time as Michael and Frances moved in; i-.g. After moving in, Michael and Frances agreed t0 take full and complete responsibility for any and all repairs, improvements, property taxes, insurance, and principal and interest mortgage payments coming due on the Property and/or as needed to keep the Property in top-quality condition; LMehael-mad-Fmaees-wfid-sel-l-flwThe property would be sold when Michael eaepeeted-te-Fwe-inélG’zlGretired, or by the end of 2021-34, whichever came first; and -4- F-IRS¥ |PROPOSED| SECOND AMENDED COMPLAINT .p \OOONONU‘I 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNER LAW GROUP, EC. 800 S. Broadway, Suite 200 Walnut Creek, Caliromia 94196 j.-Following the West: k-.i. Whefl-the-PrepefiyLwas-seldPropefl’s sale, each 0f the Hart Siblings would receive 25% of the net proceeds from that sale, except that any outstanding liens against the property would be deducted from Michael’s 25% share of the sale proceeds, whereas Plaintiff and his sisters would be entitled t0 25% of the mnet sale proceeds before those liens were paid off. a.-On March 4g, 2002,W prehaée-afiemey-EflaeWefl-te-asfit-Gail and TracyW Qetmty-Supefier-Geufi-as-AWMfiled a Petition t0 Administer Ruth Hart’s Estate (the “Estate”), within the matter entitled In Re Estate ofRuth M. Hart, Santa Clara Superior Court Case No. 1-02-PR1 50962 (the “Probate Case”). Mehael-signed-afl-ideflfieaWai-WfPlaintiffwaived his right to contest the application based on Marek4,-2992-. CG ¥Paey-ea-M-afeh-872002-in-aakppeH-efhis belief that Petifienhe was entitled t0 an equal, 25% ownership interest in the Property, based 0n the promises and representations alleged above. including those made within the 2002 Contract. 4%:16. On April 4, 2002, the Court in the Probate Case entered an order appointing Gail and Tracy as the Estate’s Administrators, With “[fjull authority to administer the [E]state under the Independent Administration of Estates Act.” a.-Plaintiff = - 4-6717.Feflemg-HMS informed and believes that -5- FIRS¥ |PROPOSED| SECOND AMENDED COMPLAINT \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNER LAW GROUP, EC. 800 S. Broadway, Suite 200 Walnut Creek, Caliromia 94196 while he remained under theWWWWbehef that he was entitled t0 an equal 25% ownership interest in the Property, as alleged above, the Property was sold bV Tracy and Gail from the Estate to Michael and Frances-i-n-an-ameu-nt-equa-l-te-t-he-rWeeeeds feaH-zed-bflfiehael-afid-Fraflees-fmn+the-sa4e-et¥the-Gende without his prior knowledge or consent. 18. AtPlaintiff fully performed, and Defendants partiallv performed under the terms of the 2002 Contract as follows: a. Michael and Frances sold the Condo 0n 0r aboutWDecember 20 2002‘ b. Prior thereto, Plaintiff assisted Michael and Frances’ efforts t0 increase the sale price 0f their Condo bV performing maintenance, upkeep and otherwise assisting in its renovation; a-.c. After selling their Condo, Michael and Frances obtained a new $155,000 loan from Wells Fargo Bank that was secured by the Property (the “Loan%::)_; b7d. In or about 2003, Michael and Frances moved into the Propeny-at-er-abem , and they have continuously used and occupied the WPropertv as their primary residence since moving in, up to and including the present dav; and ee. Plaintiff continued performing maintenance and upkeep on the Propefiy, including front and back yard landscaping, until Michael and Frances moved into the Property;-afld «1-7719. AIn 2018 a dispute arose between the parties in-ZO-l-S-regarding Michael’s obligation to sell the Property when he retired. As a result, Pl-a-iflti-fifiafld-the Hart Defeadafltsm scheduled a second family meeting later that year to discuss potential options t0 resolve the matter. 4-8:&As they tried to find a date to hold that meeting, Plaintiff and Michael exchanged a series of text messages that confirmed the existence and essential terms of the 2002 Contract and parties involved, while identifying the terms in dispute. Those messages included the following: \ \ \ \ \ \ -6- F-IRS¥ |PROPOSED| SECOND AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNER LAW GROUP, EC. 800 S. Broadway, Suite 200 Walnut Creek, Caliromia 94196 /// Author Written Statement Michael “I or Gail did not tell TracV 0r V0u that vou would not get vour inheritance in the house. The agreement was that we would live in our Motherf’1s house until either Fran 0r mvself Dassed awav. and then it would 20 t0 all three of vou Gail. Tracv. and Fred.” Plaintiff “No, that wasn't the agreement. That is the agreement Gail manipulated into your mind... You just said that we do have an inheritance as we all know. . .” HLThe aforementioned meeting between PLai-nti-ffiand-the Hart9mm was held 0n April 14, 2018, at which time theyich confirmed the existence and terms 0f the 2002 Contract and reached a second oral agreement (the “2018 Contract”) that contained the following essential terms: a. Michael (acting 0n behalf ofhimselfand Frances) agreed t0 take out a new loan equal to 25% 0f the Property’s appraised fair market value at that time, repayment 0fwhich would be secured by the Property; and b. The funds from that new loan would be paid t0 Plaintiff, in exchange for: (1) his agreement to refrain from parsuing-the-mafier-fimherimmediatelv filing litigation; and (2) his equal, respective, undivided, one-quarter ownership interest in the Property. Q&LApproximately four days later, Plaintiff and Gail exchanged a series of text messages in which the essential terms 0f the 2002 and 2018 Contracts new-seaght-te-be-eflfefeed wi-thia-this-matter-were Mmemorialized, including the following: Author Written Statement Gail “I have thought about this quite a bit since our meeting 0n April 14th. You would be verv wise to hold offselling out vour share now. The Dronertv went uD $ 1 87.000 last month. If it's possible that vou can work something out [un1til Skip retiresq vou Will make much more moneV We're still waiting 0n retirement papers from [Michael’s] work and TracV is still not uD t0 Dar. Go look on the internet at Zillow for 760 Emilv Dr. And vou Will see how the Dronertv is climbing. But if vou choose to take vour share at this time (if [Michael] and Fran can finance you. . .” Plaintiff “I am glad that you are so concerned on how wise it would be me to hold off on selling my share ofmy inheritance [I]f Skip can't get a equity loan it might be better t0 refinance....as vou said the Dronertv will probablv be worth $2.000.000 in -7- FIRST |PROPOSED| SECOND AMENDED COMPLAINT HORNER LAW GROUP, EC. 800 S. Broadway, Suite 200 Walnut Creek, Caliromia 94196 less than a year and climbing As agreed I am ready to move on with my life as stated at meeting Iwant out. If [Michael] needs another co-signer I have excellent credit. . .” 2-1-.&On April 22, 2018, Michael sent a subsequent text message to Plaintiff wherein he confirmed that the 2002 Contract required the Property to be sold When he retired, but refused t0 satisfy his ebl-i-gafieaobligations under the 2018 Contract. That message stated, in relevant part: H4 H4 Author Written Statement Michael “Fran and I have decided that we cannot refinance a loan for vour inheritance. Fran retires in August. cutting her salary in half . .. In 5 vears 0r sooner. when I retire we will sell the house and each ofus will get our inheritance then. I Will not be signing for an appraisal on this house on May 5th [of] 2018” 2-2-24. A similar email from Michael to Plaintiff followed 0n July 15, 20 1 8-6whieh-Pl-a4mi-fif EMed-mWauflmd-by-Gfll stating, in relevant part: Fran and I discussed it and have decided [w]e cannot afford to finance a loan t0 pay your share 0f the equity. I retire on December 31st 2020 and the house will be put 0n the market in Januarv 2021 . When the house sells, vou will then be Quid [our equity. We also discussed taking out a personal loan and paying you $18,000.00. It would pay for your mortgage ($230/ mo) utilities ($140/ mo) and food ($300/mo) for twenty-eight months. Your $800.00 Social Security check would be free and clear. The $ 1 8,000.00 would be reimbursed to us when the house is sold from your equity. .. _Ifyou are not agreeable to the above offer, the only option left is to take us to court at your expense. 23:25. Thereafter, Plaintiff consulted with an attorney and, in reliance 0n that attornevs’ advice, agreed t0 resolve his dispute with Michael and Frances Via written agreement signed by Michael, Frances and Plaintiff on August 10, 2018-and Which was recorded against th_etitle to the Property shortly thereafter (the “Equity Agreement”). The Equity Agreement (a true and correct copy ofwhich is attached hereto as Exhibit A) states, in its entirety: 1. Frederick Hart agrees and accepts Michael Hart and Frances Hart's offer of $1 8,000. The $18,000 is an advance 011 his 1/4 (one-fourth) equity in the property at 760 Emily Drive, Mountain View, California, 94043. The house will go on the market in 2021 and once sold, Frederick Hart Will reimburse Michael Hart and Frances Hart the $1 8,000 from his share of the Equity. -8- FIRST |PROPOSED| SECOND AMENDED COMPLAINT OONON \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNER LAW GROUP, EC. 800 S. Broadway, Suite 200 Walnut Creek, Caliromia 94196 2. Frederick Hart requests that the $18,000 be paid in cash. This transaction has taken place and this letter is receipt of the payment. 3. Frederick Hart agrees not to contact Michael Hart or Frances Hart until the sale of the above-mentioned property in 2021. At that time, Michael Will contact Frederick Hart concerning the disbursement of Frederick's equity minus $18,000. 26. The only encumbrance on the property appearing ofrecord and otherwise known to Plaintiff or apparent from an inspection of the property that Plaintiff reasonably believes will be materially affected by this action is a refinance loan totaling approximately $400,000 (the “Refinance Loan”) that was obtained on or about May 28, 2021 (approximately three months after this matter was originally filed) by Michael and Frances from JP Morgan Chase Bank (“Chase Bank”), which replaced their prior Loan. FIRST CAUSE OF ACTION (For PaHitien-and-SakBreach of Real-PrepeFtv-Contract (Equitv Agreement) Against A-H DefendanfsMichael, Frances and DOES 1-25) 27. Plaintiff alleges and incorporates the allegations contained in paragraphs 1 through 23%, inclusive, as through fillly set forth hereinbelow. 28._Plaintiff requestshas performed all obligations required 0f him under the terms 0f the Eguifl Agreement. 29. A11 conditions required for Defendants’ performance under the terms of the Equity Agreement have occurred. 30. Plaintiff is informed and believes that although Michael retired at the end of 2020, -9- FIRS¥ |PROPOSED| SECOND AMENDED COMPLAINT OOQQ KO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNER LAW GROUP, EC. 800 S. Broadway, Suite 200 Walnut Creek, Caliromia 94196 Michael and Frances breached the Contract thereafter (and continue t0 d0 s0) bV failing and refusing t0 make a good faith effort t0 sell the Property in 2021, failing and refusing t0 actually sell the Property in 202 1, and bV further encumbering the Property’s value with the Refinance Loan. 3 1. As a direct and proximate cause 0f these breaches, Michael and Frances have been uniustly enriched and Plaintiff has suffered damages and unconscionable iniurv. 32. Based on the foregoing, Plaintiff is entitled to an order requiring Defendants’ specific performance 0f their obligations under the Equity Agreement, and/or t0 recover compensatory, consequential, and any other damages and amounts necessary t0 compensate Plaintiff for all detriment proximately caused as a result of the foregoing breaches as determined bV this Court in an amount according t0 proof, but n0 less than an amount equal to 25% of the fair market value of the Property (which Plaintiff is informed and believes t0 be paHéfiefled-fef approximately $ 1 .5 Million as 0fthe date of filing ofthis First Amended Complaint), less $18,000. // SECOND CAUSE OF ACTION (For Breach 0f Contract (2002 Contract) Against All Defendants) 33. Plaintiff alleges and incorporates the allegations contained in paragraphs 1 through 32, inclusive, as through fully set forth hereinbelow. 34. Plaintiff has performed all obligations required 0f him under the terms of the 2002 Contract. 35. A11 conditions required for Michael’s and Frances’ performance under the terms of the 2002 Contract have occurred. 36. Plaintiff is informed and believes that although Michael retired at the end of 2020, Michael and Frances breached the 2002 Contract thereafter (and continue t0 d0 s0) by failing and refusing to make a good faith effort to sell the Property bV the end 2021, failing and refusing t0 actually sell the Property bV the end of202 1, and bV further encumbering the Property’s value with the Refinance Loan. 37. As a direct and proximate cause of these breaches, Michael and Frances have been unjustly enriched and Plaintiff has suffered damages and unconscionable iniurv. -10- F-IRS¥ |PROPOSED| SECOND AMENDED COMPLAINT \DOONON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNER LAW GROUP, EC. 800 S. Broadway, Suite 200 Walnut Creek, Caliromia 94196 38. Based on the foregoing, Plaintiff is entitled t0 an order requiring Defendants’ specific performance 0ftheir obligations under the 2002 Contract, and/or to recover compensatory, consequential, and anV other damages and amounts necessary to compensate Plaintiff for all detriment proximately caused as a result of the foregoing breaches as determined by this Court in an amount according t0 proof, but n0 less than an amount equal to 25% 0f the fair market value 0f the Property (Which Plaintiff is informed and believes to be approximately $1.5 Million as of the date 0f filing 0fthis First Amended Complaint), less $18,000. THIRD CAUSE OF ACTION (For Quiet Title Against Michael, Frances and DOES 1-25) 39. Plaintiff alleges and incorporates the allegations contained in paragraphs 1 through 38, inclusive, as through fully set forth hereinbelow. 40. It has been held that one Who acquires legal title throth fraud has oan “bare legal title,” and is considered the “constructive trustee” 0f the property for the benefit of the defrauded equitable title holder. Under these circumstances, the equitable title holder may pursue a quiet title action against the “legal” title holder. Warren v. Merrill (2006) 143 Cal.App.4th 96, 113-1 14. 41. Pursuant thereto, and as alleged hereinabove, Defendants acquired legal title to the Property through fraud as follows: a. At all times relevant, Defendants were aware of Plaintiff’s belief that he was entitled t0 an equal, respective, undivided, one-quarter ownership interest in the Property following the death of his mother in Februarv 2002. b. Plaintiff is informed and believes that prior to entering into the 2002 Contract, Defendants: (a) knew that Plaintiffs aforementioned belief was mistaken, (b) knew that the Property was actuallV bequeathed bV Ruth Hart t0 Gail and TracV and (c) Michael & Frances thereafter agreed with Gail and Tracy to purchase the Property from them/the Estate, without Plaintiff s prior knowledge 0r consent. c. Plaintiff is informed and believed that when they entered into the 2002 Contract, Defendants knowingly and intentionally concealed the foregoing facts and from Plaintiff -1]- F-IRS¥ |PROPOSED| SECOND AMENDED COMPLAINT OOQQ KO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNER LAW GROUP, EC. 800 S. Broadway, Suite 200 Walnut Creek, Caliromia 94196 while knowingly and intentionally misrepresenting t0 Plaintiff that he held an equal, respective, undivided, one-quarter ownership interest in the Property, all t0 obtain his agreement and performance under the 2002 Contract, which was in turn intended to prevent him from interfering with Michael and Frances’ purchase of the Property from the Estate, obtaining the Loan secured by the Property, and using the Property as their primary residence thereafter, to Plaintiff’s exclusion. d. Plaintiffiustifiablv relied on Defendants’ misrepresentations and concealments by, amongst other things: ( 1) entering into the 2002 Contract; (2) fully performing thereunder and (3) refraining from objecting to or interfering With the undisclosed salerPafti-H'efl-by of the Propefl t0 Defendants. 42. Pursuant t0 Code osz'vil Procedure section 761 .020, Plaintiff alleges as follows: a. The Property is commonly known as 760 Emily Drive, Mountain View, California 94043 and more particularly described as follows: Lot 17, in Block 1, as shown upon the Mac 0f Tract N0. 1068 Cloverdale Terrace Which said map was filed for record in the office 0f the Recorder of the County 0f Santa Clara, State of California on January 13, 1953 in Books 41 of Maps, page 31; Assessor’s Parcel Number 160-02-023. b. The title ofPlaintiff as to which a determination under Code ofCivz'l Procedure section 760.010, et seq. is sought is his undivided, one-quarter ownership interest in the Property. His basis for said title are the representations and agreements made bV Defendants upon which Plaintiffrelied in entering into and fully performing under the 2002 Contract and Equity Agreement alleged hereinabove. c. The adverse claims to Plaintiffs title against which a determination is sought are Defendants continuing 100% ownership 0f the Property obtained by fraud, as alleged above, their continuing failure and refusal to make a good faith effort t0 sell the Property (0r actuallV do so) bV the end 2021, and their further encumbrance of the Property’s value with the Refinance Loan, all 0fwhich constitutes Defendants’ breaches 0f the 2002 Contract and Equity Agreement. d. The date as 0fWhich the determination is sought is the date of filing Plaintiff’ s Complaint herein. -12- F-IRS¥ |PROPOSED| SECOND AMENDED COMPLAINT OOQQ KO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNER LAW GROUP, EC. 800 S. Broadway, Suite 200 Walnut Creek, Caliromia 94196 e. Based upon the foregoing, Plaintiff seeks relief against Defendants as more particularly alleged hereinbelow. FOURTH CAUSE OF ACTION (For Intentional Misrepresentation Against All Defendants) 43. Plaintiff alleges and incorporates the allegations contained in paragraphs 1 through 42, inclusive, as through fully set forth hereinbelow. 44. During the aforementioned meeting between the Hart Siblings in February 2002, Gail, Tracy and Michael told Plaintiff that his understanding of his inheritance rights from his mother was correct, and that he was immediately entitled t0 the Inheritance in the form of a 25% an equal, respective, undivided, one-quarter interest in the Property. 45. Defendants repeated the same representations 0n multiple occasions over the course of the next 16 years, as alleged above. Such ongoing representations were made to Plaintiff: a. BV Michael within a text message sent prior t0 the Hart Siblings April 2018 meeting, as alleged Within Paragraph 18, above; b. BV Michael, Gail and Tracy during the Hart Siblings in-person meeting in April 2018; c. Within Gail’s text message t0 Plaintiff sent on April 18, 201 8, as alleged within Paragraph 20, above; d. Within Michael’s April 22, 2018 text message, as alleged within Paragraph 2 1, above; e. Within Michael’s JulV 15, 2018 email to Plaintiff, as alleged Within Paragraph 22, above; and f. Within the August 2018 Equity Agreement signed by Michael and Frances. 46. Defendants made these intentional misrepresentations with knowledge of their falsity, without reasonable grounds for believing them to be true, and with the intent of inducing Plaintiff t0 enter into the 2002 Agreement, act in accordance therewith, refrain from challenging the appointment 0f Gail and TracV as administrators 0f Ruth Hart’s Estate, and t0 likewise prevent Plaintiff from interfering with the sale of the Property bV Gail and Tracy and Michael and Frances. -13- F-IRS¥ |PROPOSED| SECOND AMENDED COMPLAINT OOQQ KO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNER LAW GROUP, EC. 800 S. Broadway, Suite 200 Walnut Creek, Caliromia 94196 47. Specifically, Plaintiff is mequafiaEe-Ehafréwisiefl-m-kmd-beewseinformed and believes, and based thereon alleges, that at the time the representations were made, Defendants: a. Knew that anV oral promise bV them to grant Plaintiff an equal, respective, undivided, one-quarter interest in the Property iswas unenforceable until memorialized in a singk- writing signed by them; b. Knew that formally selling the Property and transferring its title to Michael and Frances would further impede Plaintiff’s ability t0 claim any legally valid ownership interest in the Property without such a writing; c. Never intended to provide such a writing to Plaintiff; and d. Knew Plaintiffwas unaware 0f any of the foregoing facts. 48. Plaintiff, a layperson lacking real estate experience, and a close family resiéeneeefl a-let-Whefe-physieal-pafii-téefl-i-s-member with Defendants, iustifiablv relied on Defendants’ representations to his detriment. In particular, and amongst other things, Plaintiff: a. Did not contest the validity 0f Ruth Hart’s Will, Gail and Tracy’s appointment as Estate Administrators, the sale 0f the Propeml to Michael and Frances for significantly less than fair market value, and/or Gail and Tracy’s receipt 0f 100% of the proceeds from that sale from the Estate Via the Probate Case; b. Took nothing in exchange for his promises made Within the 2002 Contract beyond the promise of future payment of the value of his Inheritance when the Property was sold approximately two decades later; and c. Performed as agreed under the 2002 Contract thereafter. 49. Plaintiff’s reliance was reasonable and foreseeable. 50. As a direct and proximate result 0fthe Defendants’ conduct, Plaintiff suffered actual and special damages in an amount t0 be proven at trial. 28:51. Plaintiff is further informed and believes, and based thereon alleges, that Gail and Tracy’s misrepresentations were maliciously made t0 obtain Plaintiff’ s acquiescence t0 their fraud. Specifically, Plaintiff is informed and believes that in making these misrepresentations, Gail and Tracy’s ultimate goal was to personally take as much money out of the Estate as possible fier -14- F-IRS¥ |PROPOSED| SECOND AMENDED COMPLAINT HORNER LAW GROUP, EC. 800 S. Broadway, Suite 200 Walnut Creek, Caliromia 94196 . v .by tricking Plaintiff into helping Michael and Frances sell the Condo for as much as possible, then agreeing with Michael and Frances t0 sell them the Property from the Estate for the same amount (significantly less than fair market value at the time), which Gail and Tracy would then receive in cash as the sole benefactors of the Will, which they also tricked Plaintiff into approving while simultaneously permitting the Property to be sold t0 Michael and Frances for as much money as could be paid bV Michael and Frances at that time, which would then be placed into the Estate, pass through the Probate Case, and ultimately be awarded t0 each 0f them in equal 50% shares, all in conscious disregard 0f Plaintiff’s rights and without his knowledge or approval. 52. The conduct of the Defendants alleged herein was intentional, oppressive, fraudulent, malicious, and was performed with conscious disregard 0f Plaintiff’s rights. Plaintiff is therefore entitled to punitive damages in an amount to be determined at trial. \ \ \ \ \ \ FIFTH CAUSE OF ACTION (For Intentional Concealment Against All Defendants) 53. Plaintiff seeks-Peimbufsement-efalleges and incorporates the allegations contained in paragraphs 1 through 52, inclusive, as through fully set forth hereinbelow. 54. At all times relevant, Defendants intentionally failed t0 disclose the following facts t0 Plaintiff: a. Plaintiff’ s understanding that he was entitled to the Inheritance was incorrect; b. Any oral promise bV them t0 grant Plaintiff an equal, respective, undivided, one-quarter interest in the Property was unenforceable until memorialized in a writing signed bV -15- F-I-RS¥ |PROPOSED| SECOND AMENDED COMPLAINT KOOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNER LAW GROUP, EC. 800 S. Broadway, Suite 200 Walnut Creek, Caliromia 94196 c. Defendants never intended t0 provide such a writing to Plaintiff; d. After being appointed bV the bal-aHee-efCourt in the Refinaflee-Leafl-te-be dedueted-ffem-afld-agati-nst-Probate Case as administrators 0f Ruth Hart’s Estate, Gail and Tracy sold the partifiefl-wes-pmeeeds-ef-Property t0 Michael andyler Frances; and e. Gail and Tracy received the majority of the net proceeds from that sale. 55. In addition, Defendants made the misrepresentations alleged within Paragraph 42 in order t0 prevent Plaintiff from discovering the undisclosed facts alleged within Paragraph 52. 56. As a result, Plaintiff did not know of, and was prevented bV Defendants from discovering, the concealed facts alleged hereinabove. 57. Defendants intended to deceive Plaintiffby engaging in the conduct alleged herein; 58. Plaintiff, a layperson lacking real estate experience, and a close family member With Defendants, justifiably relied on their concealments to his detriment. Had the omitted information been disclosed t0 Plaintiff, Plaintiff: a. Would not have refrained from contesting the validity of Ruth Hart’s Will, Gail and Tracy’s appointment as Estate Administrators, the sale of the Property t0 Michael and Frances for significantly less than fair market value, and/or Gail and Tracy’s receipt of 100% 0f the proceeds from that sale from the Estate Via the Probate Case; b. Would not have performed as agreed under the 2002 Contract; and/or c. Would have ensured that a 25% ownership interest in the Property was transferred t0 him Within a writing that complied with the Statute of Frauds and was recorded against Title to the Property. 59. Plaintiff s reliance was reasonable and foreseeable. 60. As a direct and proximate result of the Defendants’ concealments, Plaintiff suffered actual and special damages in an amount t0 be proven at trial. 61. Plaintiff is further informed and believes, and based thereon alleges, that Gail and Tracv’s intentional concealments were maliciouslV made t0 obtain Plaintiff s acquiescence to their fraud. Specifically, Plaintiff is informed and believes that in making these concealments, Gail and -16- F-IRS¥ |PROPOSED| SECOND AMENDED COMPLAINT OONON \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNER LAW GROUP, EC. 800 S. Broadway, Suite 200 Walnut Creek, Caliromia 94196 Tracy’s ultimate goal was t0 personally take as much money out 0fthe Estate as possible by tricking Plaintiff into helping Michael and Frances sell the Condo for as much as possible, then agreeing With Michael and Frances to sell them the Property from the Estate for the same amount (significantly less than fair market value at the time), which Gail and Tracy would then receive in cash as the sole benefactors of the Will, which they also tricked Plaintiff into approving while simultaneously permitting the Property to be sold t0 Michael and Frances for as much money as could be paid bV Michael and Frances at that time, which would then be placed into the Estate, pass through the Probate Case, and ultimately be awarded t0 each ofthem in equal 50% shares, all in conscious disregard 0f Plaintiff s rights and Without his knowledge 0r approval. 62. The conduct 0f the Defendants alleged herein was intentional, oppressive, fraudulent, malicious, and was performed with conscious disregard of Plaintiff’s rights. Plaintiff is therefore entitled t0 punitive damages in an amount to be determined at trial. SIXTH CAUSE OF ACTION (For Equitable Estoppel Against All Defendants) 63. Plaintiff alleges and incorporates the allegations contained in paragraphs 1 through 62, inclusive, as through fully set forth hereinbelow. 64. Defendants made the promises and representations set forth throughout this Second Amended Complaint With actual knowledge of their falsity. 65. Plaintiff was ignorant of the falsity of Defendants promises and representations. 66. Defendants made the promises and representations with the intent that Plaintiff believe them and act upon such belief. 67. Plaintiff, a layperson lacking real estate experience, and being the sibling of Defendants, justifiably relied on their representations t0 his detriment. In particular, and amongst other things, Plaintiff refrained from contesting the validity 0f Ruth Hart’s Will, Gail and Tracv’s appointment as Estate Administrators, the sale of the Property to Michael and Frances for significantly less than fair market value, and/or Gail and Tracy’s receipt 0f 100% 0f the proceeds from that sale from the Estate Via the Probate Case, all While Plaintiff received nothing at that time except the promise of a future payment Via his equal, respective, undivided, one-quarter interest in -17- FIRS¥ |PROPOSED| SECOND AMENDED COMPLAINT OOQQ KO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNER LAW GROUP, EC. 800 S. Broadway, Suite 200 Walnut Creek, Caliromia 94196 the Properly. 68. Plaintiff’ s reliance was reasonable and foreseeable. 69. As a direct and proximate result ofDefendant's acts and omissions as above alleged, Plaintiff has been damaged in an amount t0 be proven at trial, but n0 less than an amount equal t0 25% of the fair market value of the Property (which Plaintiff is informed and believes to be approximately $ 1 .5 Million as 0fthe date of filing ofthis First Amended Complaint), less $ 1 8,000. Accordingly, an equitable lien should be imposed on the Property, as security for payment of Plaintiff’ s damages and/or liquidation 0f his equitable interest in the Property. SEVENTH CAUSE OF ACTION (For Promissory Estoppel Against All Defendants) 70. Plaintiff alleges and incorporates the allegations contained in paragraphs 1 through 69, inclusive, as through fully set forth hereinbelow. 71. As set forth hereinabove, Defendants’ representations and promises regarding Plaintiffs 25% legal/equitable interest in the Property, Michael’s and Frances’ obligation to sell the Property upon Michael’s retirement n0 later than the end of 2021, And their promise t0 distribute 25% of the net proceeds (exclusive of liens) to Plaintiff was clear and unambiguous. 72. As alleged herein, Defendants breached those promises. 73. As alleged herein, Plaintiff, a layperson lacking real estate experience, and being the sibling of Gail and Tracy, justifiably relied upon Defendants’ representations and promises t0 his detriment. Had they been truthful, Plaintiff: a. Would not have refiained from contesting the validity of Ruth Hart’s Will, Gail and Tracy’s appointment as Estate Administrators, the sale of the Property to Michael and Frances for significantly less than fair market value, and/or Gail and Tracy’s receipt 0f 100% 0f the proceeds from that sale from the Estate Via the Probate Case; b. Would not have performed as agreed under the 2002 Contract; and/or c. Would have ensured that a 25% ownership interest in the Property was properly transferred t0 him Within a writing that complied With the Statute of Frauds and was recorded against Title to the Property. -18- F-IRS¥ |PROPOSED| SECOND AMENDED COMPLAINT KOOONON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNER LAW GROUP, EC. 800 S. Broadway, Suite 200 Walnut Creek, Caliromia 94196 74. Plaintiff s reliance was reasonable and foreseeable. 30:75. As a direct and proximate result ofDefendant's acts and omissions as above alleged, Plaintiff has been damaged in an amount to be proven at trial, but no less than an amount equal to 25% 0f the fair market value of the Property (which Plaintiff is informed and believes t0 be approximately $1 .5 Million as 0fthe date of filing 0fthis First Amended Complaint), less $ 1 8,000. Accordingly, an equitable lien should be imposed on the Property, as security for payment of Plaintiff s damages and/or liquidation 0f his equitable interest in the Property. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays forjudgment against Defendants as follows: 1. For ajadgment-paffitéemngan order requiring Defendants’ specific performance 0f their obligation to immediately sell the PropertyWand dfiédmg-distribute 25% of the n_et proceeds therefrom, as more particularly alleged above and required within the 2002 Contract and/or Equity Agreement; 2. For all damages, including general, compensatorv and consequential damages, according to £he-proof at the time 0f trial, in an amount in excess of the minimum iun'sdiction of this Court‘ -1-.3. That it be determined that Plaintiff has good title t0 the Property in the form of an egual, respectiveWW-pamesrmemdiflgrmmwmfiefiefifl-Lundividedl one-;quarter ownership interest-te-Plramtirfif, and that Defendants have no contrary right, title, interest, 0r estate therein; -19- FIRS¥ |PROPOSED| SECOND AMENDED COMPLAINT 12 4. That Defendants be forever barred from asserting or claiming any contrary title or 13 interest in the Property, real or potential, choate or inchoate, which theV may now have that in anV 14 way conflicts with Plaintiff’s equal, respective, undivided, one-quarter ownership interest therein; 15 5. For all damages, including general, compensatory and consequential damages, 16 according to proof at the time of trial, in an amount in excess of the minimum jurisdiction of this 17 Court‘ 18 6. For restitution from Gail, Tracy and DOES 30-50 of approximatelv $ 1 10,000; 19 7. For punitive damages; 20 8. For imposition 0f an equitable lien against the Property on behalf of Plaintiff; 21 9. For preiudgment interest at 10% per annum; 22 10. For costs of suit incurred herein, including reasonable attornevs’ fees as permitted 23 by law; and 24 7-.1 1. For such other and further relief as the Court Wemdeems proper. 26 DATED: Nevember-IQTZQQ-l-Januag 24, HORNER LAW GROUP, P.C. 27 2022 HORNER LAW GROUP, P.C. _ 20 _ XUU S. Broadway, Sulle 100 WW”““"‘°"““‘1“ HRS: [PROPOSED] SECOND AMENDED COMPLAINT \DOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNER LAW GROUP, EC. 800 S. Broadway, Suite 200 Walnut Creek, Caliromia 94196 By: ’ lélifford R. Hafner, Esq. Michael G. Kline, Esq. Attorneys for PlaintiffFREDERICK HART JR. -21- PIES? |PROPOSED| SECOND AMENDED COMPLAINT HORNERLAW GROUP 800 s Bmadway, Sun: zoo Walnut Creek, California 94596 4; \OOOQQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Case Name: Frederick Hart, Jr. v. Michael Hart, et. al. Case N0: Santa Clara County Superior Court Case No. 21CV378991 I am employed in the County 0f Contra Costa, State of California. My business address is 800 S. Broadway, Suite 200, Walnut Creek, California 94596. I am over the age of eighteen years, and not a party t0 the within action. On January 24, 2022, I caused to be served the within: [PROPOSED] SECOND AMENDED COMPLAINT; NOTICE OF MOTION AND MOTION FOR LEAVE TO AMEND 1ST AMENDED COMPLAINT; DECLARATION OF MICHAEL G. KLINE, ESQ. IN SUPPORT OF MOTION FOR LEAVE T0 AMEND lst AMENDED COMPLAINT; DECLARATION OF PAYMON HIFAI, ESQ. IN SUPPORT OF MOTION FOR LEAVE T0 AMEND lst AMENDED COMPLAINT; [PROPOSED] ORDER GRANTING MOTION FOR LEAVE TO AMEND IST AMENDED COMPLAINT on the party(ies) listed below, addressed as follows: Douglas Scott Maynard, Esq. 1 151 Minnesota Avenue San Jose, CA 95125 maynardlawoffices@earthlink.net Attorney for Defendants Bv Electronic Service [C.C.P. 1010.6]. By causing a true copy thereofto be transmitted by electronic transmission t0 the attorneys shown below in accordance with C.C.P. 1010.6 and the local rules 0f the court. Executed January 24, 2022 at Walnut Creek, California. By: yawn9mm Sharon Piserchio PROOF OF SERVICE
