Complaint Unlimited Fee AppliesCal. Super. - 6th Dist.March 23, 2021\OOOQONUI-PUJNt-n NNNNNNNNNv-IHb-tt-tt-tb-th-tr-tb-ti-t OOQONM-hUJNHOKOOONQUI-bWNF-‘O E-FILED 3/23/2021 1:52 PM Clerk of Court SIMON ARON (State Bar N0. 108183) Superior Court Of CA, saron@wrslawvers.com C t f8 t CIALEXANDER B BORIS (State Bar N0. 313195) 0”“ y O an a ara aboris@wrslawyers.com 21 CV381 1 87 WOLF, RIFKIN, SHAPIRO, SCHIhILMAN & RABKIN, LLRBVieWGd By: V. Taylor 11400 West Olympic Boulevard, 9t Floor Los Angeles, California 90064-1582 Telephone: (3 10) 478-4 1 00 Facsimile: (3 10) 479-1422 Attorneys for KEVIN SINGER, STATE COURT RECEIVER OVER PLATINUM ROOFING, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA - DOWNTOWN SUPERIOR COURT PLATINUM ROOFING, INC. Case No. 21 CV381 187 Plaintiff, UNLIMITED CIVIL CASE VS. COMPLAINT FOR MP SHOREBREEZE ASSOCIATES, L.P., a California corporation; CORE (1) BREACH OF CONTRACT; GENERAL CONTRACTORS, INC. DBA (2) FORECLOSURE ON CORE BUILDERS. a California MECHANIC’S LIEN; corporation; and DOES 1 through 50, (3) UNJUST ENRICHMENT; AND inclusive, (4) QUANTUM MERUIT Defendants. COMES NOW Plaintiff, KEVIN SINGER, STATE COURT RECEIVER OVER PLATINUM ROOFING, INC. and complains against the above-named Defendants as follows: ALLEGATIONS COMMON TO ALL CAUSES OF ACTION (The Parties) 1. Plaintiff, PLATINUM ROOFING, INC. (“Platinum”), is, and at all times mentioned herein was, a corporation organized and existing under the laws 0f the State 0f California. COMPLAINT \OOONQUI-PUJNt-t NNNNNNNNNv-tt-tt-ti-tt-tt-ti-tt-tt-tv-t OOQONM-PUJNt-‘OKOOONQU‘I#UJNHO 2. On November 18, 2019, Kevin Singer (“Receiver”) was appointed as the receiver pursuant to the Court’s order over the assets of Platinum (the “Appointing Order”). A true and correct copy of the Appointing Order is filed as Exhibit “A” and is incorporated by this reference. 3. Plaintiff is informed and believes, and thereon alleges, that Defendant, MP SHOREBREEZE ASSOCIATES, L.P. (“MPS”) is, and at all times material hereto was, a California limited partnership with its principal place of business located in the County of Sierra, State of California. 4. Plaintiff is informed and believes, and thereon alleges, that Defendant, CORE GENERAL CONTRACTORS, INC. DBA CORE BUILDERS (“Core Builders”) is, and at all times material hereto was, a California limited partnership With its principal place 0f business located in the County 0f Santa Clara, State 0f California. 5. Plaintiff is informed and believes, and thereon alleges, that each 0f the Defendants named hereinabove, and Defendants DOES 1 through 50, inclusive, When acting for themselves 0r as an agent, servant, employee, partner, joint venture, successor- in-interest or otherwise, was acting in the scope of its/his/her authority as such agent, employee, partner, joint venturer, successor-in-interest or otherwise, and with the permission and consent 0f the remaining Defendants. Each 0f the fictitiously named Defendants whether acting for itself/themselves or as an agent, servant, employee, partner, joint venturer, successor-in-interest 0r otherwise, is in some way liable 0r responsible t0 Plaintiff and the injuries 0r damages caused. 6. Plaintiff is informed and believes, and thereon alleges, that Defendants, and each of them, may have been the agents, servants, employees, assistants, and consultants 0f their co-Defendants and, as such, were acting within the course and scope 0f their agency and authority 0f such agency and employment. 7. Plaintiff is further informed and believes, and thereon alleges, that at all times mentioned herein, DOES 1 through 50, inclusive, and each of them, participated in, ratified, acquiesced in and/or had some responsibility for the acts, omissions, and/or 4524946.1 _2_ COMPLAINT \OOONQUI-PUJNt-t NNNNNNNNNv-tt-tt-ti-tt-tt-ti-tt-tt-tv-t OOQONM-PUJNt-‘OKOOONQU‘I#UJNHO conduct alleged herein, and/or caused some of the damages incurred by Plaintiff as alleged herein. 8. Plaintiff is further informed and believes, and thereon alleges, that at all times mentioned herein, DOES 1 through 50, have or claim to have some right, title, 0r interest in the Property, the exact nature of Which claims are unknown to Plaintiff, but Which claims are subject t0 and subordinate the lien claim 0f Plaintiff. Wherever the term Defendants is used herein shall mean and refer t0 Defendants MPS, Core Builders and all DOE Defendants. Jurisdiction 9. The amount in controversy is over the $25,000 jurisdictional minimum 0f this Court. 10. Plaintiff is informed and believes, and thereon alleges that certain transactions and the property Which are the subj ect matter of this action were located, made or entered into in the County of Santa Clara, State of California. FIRST CAUSE OF ACTION (Breach 0f Contract as Against All Defendants) 11. Plaintiff incorporates by reference paragraphs 1 through 10, inclusive, as though fully forth herein. 12. On or about August, 2019, Plaintiff and Defendants entered into an agreement by which Plaintiff agreed t0 furnish certain labor, services, equipment, and material for a work 0f improvement located at 460 N. Shoreline Boulevard, Mountain View, California 94043, Assessor Parcel No. 150-26-007 (the “Property”), for an agreed contract price 0f $344,866.00, plus additional sums as the parties would determine for additional work (the “Agreement”). A true and correct copy 0f the Change Order reflecting the original contract amount is attached hereto as Exhibit “B” and is incorporated by this reference. 13. Between January, 2019 and August, 2020, pursuant t0 the Agreement and at Defendants’ special request, Plaintiff furnished and supplied to Defendants, the labor and 4524946.1 _3_ COMPLAINT \OOONQUI-PUJNt-t NNNNNNNNNv-tt-tt-ti-tt-tt-ti-tt-tt-tv-t OOQONM-PUJNt-‘OKOOONQU‘I#UJNHO materials to perform improvements on the Property. Said labor and materials were t0 be used and were actually used in that certain work of improvement on the Property (the “Proj ect”). The agreed upon price and reasonable value of said labor and materials was and is the sum of $344,866.00. 14. Platinum performed all conditions and covenants to be performed. Defendants breached the contract by not tendering payment as agreed upon. Platinum has not received full payment or credit 0n said sum, and there is now due and owing to Plaintiff, for an account thereof, the sum 0f $37,000.00. SECOND CAUSE OF ACTION (Foreclosure 0f Mechanic’s Lien as Against All Defendants) 15. Plaintiff incorporates by reference paragraphs 1 through 10, and 12 through 14 inclusive, as though fully forth herein. 16. Plaintiff duly caused a written preliminary notice t0 be sent in accordance with Civil Code section 3097. 17. On December 23, 2020, Plaintiff filed and subsequently duly recorded a verified Mechanics' Lien Claim, describing the Property, the labor, services, equipment, and materials t0 be furnished 0n the work 0f improvement at the Property, in the official records of the county 0f Santa Clara, California, in accordance With the provisions 0f Civil Code section 3084. A true and correct copy of the Mechanic’s Lien Claim is attached hereto as Exhibit “C” and is incorporated by this reference. 18. Plaintiff has incurred debt in the sum 0f $101 .00, representing the necessary costs of recoding the Mechanic’s Lien. 19. Despite repeated demand t0 pay the balance, Defendants have failed t0 d0 so. 20. Defendants claims some right, title, 0r interest in or to the Property, each 0f which claim is junior and inferior to Plaintiff’s claim. / / / / / / / / / 4524946.1 _4_ COMPLAINT \OOONQUI-PUJNt-t NNNNNNNNNv-tt-tt-ti-tt-tt-ti-tt-tt-tv-t OOQONM-PUJNt-‘OKOOONQU‘I#UJNHO THIRD CAUSE OF ACTION (Unjust Enrichment as Against All Defendants) 21. Plaintiff incorporates by reference paragraphs 1 through 10, 12 through 14, and 16 through 20, inclusive, as though fully forth herein. 22. Plaintiff has provided work t0 the Project, and has provided a substantial benefit t0 the Project and the Property in an amount not less than $37,000.00. Defendants have received the entire benefit of Plaintiff” s work but have not paid for it. 23. Defendants agreed to pay the reasonable value of the work supplied by Plaintiff, and Defendants have failed t0 pay any 0f that value. 24. Defendants have been unjustly enriched in an amount not less than $37,000.00 because Defendants have refused to pay Plaintiff for the work Plaintiff provided t0 the Project. 25. Defendants have also been unjustly enriched in an amount not less than $37,000.00 because the Property has substantially benefited from the work supplied to the Proj ect, despite the nonpayment t0 Plaintiff. 26. Defendants have further been unjustly enriched because Defendants have unjustly held the funds due and owing t0 Plaintiff Without having to pay interest 0n those funds. Plaintiff is therefore entitled to interest 0n the unpaid amount at the highest rate allowable by law. FOURTH CAUSE OF ACTION (Quantum Meruit as Against All Defendants) 27. Plaintiff incorporates by reference paragraphs 1 through 10, 12 through 14, 16 through 20, 22 through 26, inclusive, as though fully forth herein. 28. Plaintiff provided work to the Proj ect for Which it has not been paid. It would be unjust if Plaintiff was not compensated for the reasonable value 0f the work. 29. The reasonable value 0f the work t0 the Project actually furnished t0 the Proj ect by Plaintiff for which Plaintiff has not been paid is $37,000.00. 4524946.1 _5_ COMPLAINT \OOONQUI-PUJNt-t NNNNNNNNNv-tt-tt-ti-tt-tt-ti-tt-tt-tv-t OOQONM-PUJNt-‘OKOOONQU‘I#UJNHO 30. Plaintiff has made several demands for payment 0f the above sum, but Defendants have failed and refused, and continue to fail and refuse to pay the sum, and the Whole sum remains due, owing, and unpaid. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment against Defendants as follows: FIRST, THIRD, AND FOURTH CAUSE OF ACTION 1. For general, special, consequential and incidental damages according t0 proof; SECOND CAUSE OF ACTION 2. For the sum 0f $37,000.00 damages, together With interest as permitted by law; 3. For the sum 0f $101.00 in costs incurred in recoding the Mechanic’s Lien Claim; 4. The sum of $37,000.00 , together With attorney’s fees and interest, be ordered as a lien against the Property, senior and superior t0 any claim of right, title 0r interest in or to the Property 0f Defendants, and that the Property be ordered t0 be sold by the Sherriff of Contra Costa County, California, according t0 law, and that all proceeds of sale be applied to Plaintiff” s claim and to the cost of these proceedings and the sale of the Property; 5. Should any deficiency result from the sale of the Property in this Court’s decree, that Plaintiff has judgment for such deficiency against Defendants; ALL CAUSES OF ACTION 6. Prejudgment interest; 7. Costs 0f suit incurred herein, including reasonable attorney’s fees and costs as permitted by law; and / / / / / / / / / 4524946.1 -6- COMPLAINT \OOONQUI-PUJNt-t NNNNNNNNNv-tt-tt-ti-tt-tt-ti-tt-tt-tv-t OOQONM-PUJNt-‘OKOOONQU‘I#UJNHO 8. Such other and further relief as the Court may deem just and proper. DATED: March 23, 2021 45249461 WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP WM ALEXANDER B. BORIS Attorneys for KEVIN SINGER, STATE COURT RECEIVER OVER PLATINUM ROOFING, INC. -7- COMPLAINT 388408.1 EXHIBIT A ‘9439Cferk Of 1.6 ' r cotwQr e4 c re ty 0/47 o, GREEN, STEEL & ALBRECHT, LLP SCOTT R. ALBRECHT, State Bar No. 201614 ANAT PIETER, State Bar No. 204306 19800 MacArthur Boulevard, Suite 1000 Irvine, California 92612 Telephone: (949) 263-0004 Facsimile: (949) 263-0005 Ji V1144,2* SUPERIOR COURT OF THE STATE OF CALIFORNIA -47 COUNTY OF SANTA CLARA Attorneys for Plaintiff PACIFIC MERCANTILE BANK, a California corporation PACIFIC MERCANTILE BANK, a California corporation, Plaintiff, v. PLATINUM ROOFING INC., a California corporation; and DOES 1 through 25, inclusive, Defendants. CASE NO. 19CV358158 STIPULATED ORDER FOR THE APPOINTMENT OF RECEIVER AND PRELIMINARY INJUNCTION IN AID OF RECEIVER EX PARTE HEARING: Date: 11/8/2019 Time: 8:15 A.M. ROOM 104 1 STIPULATION AND ORDER FOR APPOINTMENT OF RECEIVER WHEREAS, Plaintiff Pacific Mercantile Bank ("Plaintiff") and Defendant Platinum Roofing, Inc. ("Borrower") spoke on November 7, 2019, and in recognition of the exigency of the need for a receiver for purposes of preserving the Collateral and the desire to reduce fees and costs, including attorneys' fees, which would be incurred by filing an ex parte application for appointment of receiver, the parties entered into the following stipulation and agreement. STIPULATION AND ORDER IT IS HEREBY STIPULATED and agreed by Plaintiff by and through their attorneys of record, Green, Steel & Albrecht, LLP and Defendants that the Court may issue the following Stipulated Order: IT IS ORDERED that Kevin Singer ("Receiver"), be and hereby is appointed the receiver in this action, subject to the conditions that (a) before entering upon the duties as a receiver, pursuant to Code of Civil Procedure § 567, Receiver shall take the oath and file a bond with a surety thereon of satisfactory proof to the Court in the sum of $5,000.00 to secure faithful performance of the duties as receiver; (b) pursuant to Code of Civil Procedure § 529, Plaintiff shall file a bond in the sum of $10,000.00, IT IS FURTHER ORDERED that Receiver shall have the following powers and responsibilities and shall be authorized to do the following: 1. Receiver may enter onto and take possession of the business operations of Borrower located at 1900 Dobbin Dr., San Jose, CA 95133, and/or 800 Charcot Ave. Suite 107, San Jose, CA 95131, and/or 526 Charity Way, Modesto, CA 95356, and/or any other location Borrower operates out of ("Business Premises"). Receiver is authorized to engage a locksmith for the purposes of gaining entry to the Business Premises and unfettered access to any property that is the subject of this receivership and through any security system, in order to obtain any property or documents to which the Receiver is entitled pursuant to this Order. Receiver may have keys created that will work for the existing locks. 2. Receiver may seize • and take possession and control of all collateral securing Borrower's obligations to Plaintiff inclusive of "all right, title and interest of Borrower in and to all of the following, whether now owned or hereafter arising or acquired and wherever located: 2 STIPULATION AND ORDER FOR APPOINTMENT OF RECEIVER all Accounts; all Inventory; all Equipment; all Deposit Accounts; all General Intangibles (including without limitation all Intellectual Property); all Investment Property; all Other Property; any and all claims, rights and interests in any of the above, and all guaranties and security for any of the above, and all substitutions and replacements for, additions, accessions, attachments, accessories, and improvements to, and proceeds (including proceeds of any insurance policies, proceeds of proceeds and claims against third parties) of, any and all of the above, and all Borrower's books relating to any and all of the above; and money security interest in a vehicle with swap loader & four hook lift containers and a 2012 FORD F-650 (VIN 3FRNF6FB3CV467055) (collectively, the "Collateral"). Receiver may also seize and take possession and control of all Borrower's books and records relating to the Collateral and all equipment containing said books and records, wherever located, as Receiver deems necessary for the proper administration of the receivership estate. 3. Receiver may take possession and control of all financial records and data of any kind relating to Borrower and the operation of Borrower's business, whether in the form of a writing, photograph, microfilm, microfiche, or electronic media, together with all of Borrower's right, title, and interest in and to all computer software required to utilize, create, maintain, and process any such records or data on electronic media (collectively, "Books and Records"). Receiver shall have complete and unfettered access to and, if he/she so requires, possession of all of the Books and Records, wherever located and in whatever form (electronic or otherwise), for the purpose of evaluating and investigating the financial and operational history, condition, and affairs of Borrower. To the extent that any of the Books and Records are in the possession, custody, or control of other defendants in this action, this Order shall apply to them with equal force and effect. Third parties, including but not limited to banks, financial institutions, government agencies, and insurance companies, that may have Borrower's documents in their possession, custody, or control are hereby directed to cooperate with Receiver and turn over any requested documents to Receiver, including, without limitation, payroll, accounts receivable, accounts payable, bank account, and insurance claim records and information. 3 STIPULATION AND ORDER FOR APPOINTMENT OF RECEIVER 4, Receiver may execute and prepare all documents and perform all acts, either in the name of Borrower or in Receiver's own name, or in the name of the receivership estate, which are necessary or incidental to preserving, protecting, managing, and/or controlling Borrower's business and business assets, the Collateral, the Books and Records, and/or the receivership estate. 5. Receiver may take any and all steps necessary to receive, collect, and review all mail addressed to Borrower or other forms and methods of items directed and/or delivered to Borrower, including but not limited to deliveries addressed to the Business Premises, any United States post office boxes held in the name of Borrower, and any private mail boxes held in the name of Borrower. At Receiver's discretion, Receiver may instruct the United States Postmaster or any other carrier to reroute, hold, and/or release mail and deliveries to Receiver. 6. Receiver may take possession of all of Borrower's bank accounts, wherever located, and possession of any funds on deposit in said bank accounts. 7. Receiver may establish bank accounts at any bank Receiver deems appropriate for the deposit of moneys and funds collecting and received in connection with the administration of the receivership estate, provided that all funds on deposit are insured by an agency of the United States government, such as the Federal Deposit Insurance Corporation. 8. Receiver may demand, collect, and receive all monies, funds, and payments arising from the business operations of Borrower and/or the Collateral. 9. Receiver may contact each of Borrower's accounts receivable ("AR") debtors to advise and instruct them to not send further AR payments to Borrower and to instruct them to send AR payments directly to Receiver instead, 10. Receiver may employ servants, agents, employees, appraisers, guards, clerks, accountants, attorneys, and management consultants to administer the receivership estate and to protect the Collateral as Receiver deems necessary and pay the reasonable value of said services out of the proceeds of the receivership estate; purchase insurance, materials, supplies, and services and pay therefor at the usual rate and prices out of funds of the receivership estate; and in 4 STIPULATION AND ORDER FOR APPOINTMENT OF RECEIVER these regards, no risk or obligation incurred by Receiver shall be the personal risk or obligation of Receiver, but shall be the risk or obligation of the receivership estate. 11, Receiver may evaluate the sufficiency of insurance coverage on the Collateral. In that regard, Borrower shall immediately notify Receiver upon Receiver's taking possession of the assets of the receivership estate whether or not there is sufficient insurance coverage on the Collateral. If sufficient insurance coverage exists, Borrower shall be responsible and is hereby ordered to name Receiver as an additional insured on the insurance policy or policies for the period that the Receiver shall be in possession of the Collateral. If there is insufficient insurance coverage on the Collateral, Receiver shall have 30 days to procure said insurance on the Collateral, provided the receivership estate has available funds to do so, and during said period Receiver shall not be personally responsible for claims arising that would have been covered by, or for the procurement of, insurance. 12. Receiver is not required to comply with Code of Civil Procedure § 568.5 regarding Receiver's sale of personal property in the ordinary court of Borrower's business. However, Receiver shall comply with Code of Civil Procedure § 568.5 regarding Receiver's sale of personal property outside of the ordinary course of Borrower's business. 13. Receiver may hold monies coming into possession of Receiver and not expended for any of the purposes herein authorized for the payment of the obligations of Borrower to Plaintiff sued upon in the pending Complaint in this action, subject to such orders as this Court may hereinafter issue as to the disposition thereof. 14. After application to and receipt of permission from the Court, Receiver may institute ancillary proceedings in this state or any other states and countries as is necessary to preserve and protect the Collateral and/or receivership estate, and Receiver may engage the services of legal counsel, if necessary with payment for such services from the funds of the receivership estate. 15. Neither Receiver nor the receivership estate shall have any obligation to develop, prepare, or file any tax returns for Borrower or to pay any taxes due on behalf of Borrower, and the responsibility for such tax filings and payments lies exclusively with Borrower itself. 5 STIPULATION AND ORDER FOR APPOINTMENT OF RECEIVER 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 Notwithstanding the foregoing sentence, in the event that the receivership estate operates Borrower for any significant period of time to affect a recovery for Plaintiff, which may require the receivership estate to file interim tax returns, Receiver shall apply to this Court for further instructions and orders regarding taxes. 16. Borrower, on receipt of a copy of this Order, shall provide Receiver with the tax identification number utilized by Borrower in the operation of its business. Receiver shall be entitled to utilize the aforementioned tax identification number during the operation of the receivership estate as deemed necessary by Receiver for such purposes as, but not limited to, opening bank accounts and utility accounts. Receiver shall not use her personal "TIN" or "EIN" or "SSN" in connection with the administration and management of the receivership estate, and no third party is authorized to use Receiver's personal "TIN" or "EIN" or "SSN" in connection with the Receiver's administration and management of the receivership estate. 17. No utility or other vendor may terminate service or the provision of other goods or services to the receivership estate as a result of the non-payment of pre-receivership obligations, without prior order of this Court. 18. Plaintiff is authorized, in its sole and absolute discretion, opinion, and judgment, to make loan advances to Receiver for expenses incurred by Receiver relating to the administration, care, preservation, and maintenance of the Collateral, Books and Records, and/or receivership estate. All advances made by Plaintiff to Receiver shall be deemed advances under and pursuant to the Loan Agreement and related documents made by Borrower in favor of Plaintiff, as identified in the Complaint in this action, and shall have the same priority as the advances originally made by Plaintiff pursuant to the terms of the Loan Agreement. If Plaintiff does not advance funds to Receiver, Receiver may issue Receivership Certificates bearing interest at 10% per annum in the aggregate of sum of $10,000.00 without further order of the Court. Should any further funds be required, Receiver shall obtain the consent of the Court. For all funds loaned to the Receiver, Receiver shall issue Receivership Certificates in the name of the receivership estate, evidencing the funds borrowed by the Receiver, and any such borrowing shall be the sole and exclusive responsibility of the receivership estate, and no such borrowing or 6 STIPULATION AND ORDER FOR APPOINTMENT OF RECEIVER 1 obligation so incurred shall be the personal risk or obligation of Receiver. All funds loaned to 2 Receiver pursuant to such Receivership Certificate(s) shall be deemed to be a lien of first priority 3 which shall be repaid prior to all other encumbrances and claims, other than cost of 4 administration. 5 19. When acting under this Order, Kevin Singer is acting solely in the capacity as 6 Receiver, and the debts of Receiver are solely the debts of the receivership estate. Receiver shall 7 not have any personal liability or obligations for the debts of the receivership estate. If Receiver 8 is exposed to risks and liabilities arising from the operation of the receivership estate, Receiver is 9 empowered to apply this Court or any other court of competent jurisdiction to seek indemnity 10 from any and all of the other parties to this action. 11 20. Plaintiff or its counsel-of-record herein shall promptly notify Receiver in writing 12 of the names, addresses, and telephone numbers of all parties who appear in this action and their 13 counsel, if any. 14 21. Receiver or any party to this action may, from time to time, and on due notice to 15 all parties, make application to this Court for further order instructing Receiver. 16 22. Receiver shall prepare periodic interim statements reflecting Receiver's fees and 17 administrative costs and expenses incurred from time to time, in the operation and administration 18 of the receivership estate. Upon completion of an interim statement, and the mailing of said 19 statement to the parties' respective attorneys of record or any other designated agent, Receiver 20 may pay from the estate funds, if any, the amount of said statement to the Receiver for her fees, 21 costs, and expenses. Despite the periodic statement of Receiver's fees and administrative 22 expenses, such fees and expenses shall be submitted to the Court for its approval and 23 confirmation, in the form of either a noticed interim request for fees or a receiver's final account 24 and report. 25 23. Receiver shall file in this action, to the extent feasible, within 30 days of her 26 qualification hereunder, an inventory of all property of which she has taken possession pursuant 27 to this Order. Receiver shall prepare and serve, but not file, monthly statements reflecting the 28 Receiver's fees and administrative expenses, including fees and costs of accountants and 7 STIPULATION AND ORDER FOR APPOINTMENT OF RECEIVER 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 attorneys and other professionals authorized by the Court, incurred for each monthly period in the operation and administration of the receivership estate. Upon service of each statement, Receiver may disburse from estate funds, if any, the amount of each statement and those of the professionals. Notwithstanding periodic payment of fees and expenses, all fees and expenses shall be submitted to the Court for its approval and confirmation, in the form of either a properly notice interim request for fees, a stipulation of all parties, or in the Receiver's Final Account and Report. 24. Discharge of Receiver shall require a Court Order upon noticed motion for approval of Receiver's final report and account and exoneration of the receiver's bond. Not later than 60 days after the receivership terminates, Receiver shall file, serve, and obtain a hearing date on a motion for discharge and approval of the final report and account. Receiver shall give notice to all persons of whom Receiver is aware who have potential claims against the receivership property. The motion to approve the final report and account and for the discharge of Receiver shall contain the following: a) Declaration or Declarations. A declaration or declarations: (1) stating what was done during the Receivership; (2) certifying the accuracy of the final accounting; (3) stating the basis for the termination of the receivership (such as foreclosure or reinstatement); and (4) stating the basis for an order for the distribution of any surplus or payment of any deficit. b) Accounting Summary. A summary of the receivership accounting, which shall include: (1) the total revenues received; (2) the total expenditures identified and enumerated by major categories; (3) the net amount of any surplus or deficit; and (4) evidence of necessary supporting facts. 25. If Receiver receives notice that a bankruptcy has been filed and part of the bankruptcy estate includes property that is the subject of this order, Receiver shall have the following duties, subject to bankruptcy law and orders of the bankruptcy court: a) Turn Over Property If No Relief From Stay Will Be Sought. Receiver shall immediately contact the party who obtained the appointment of Receiver and 8 STIPULATION AND ORDER FOR APPOINTMENT OF RECEIVER determine whether that party intends to move in the bankruptcy court for an order for (1) relief from the automatic stay, and (2) relief from Receiver's obligation to turn over the property. If the party has no intention to make such a motion, Receiver shall immediately turn over the property to the appropriate entity either to the trustee in bankruptcy if one has been appointed or, if not, to the debtor in possession and otherwise comply with 11 U.S.C. § 543. b) Remain In Possession Pending Resolution. If the party who obtained the receivership intends to seek relief immediately from both the automatic stay and Receiver's obligation to turn over the property, Receiver may remain in possession and preserve the property pending the ruling on those motions (11 U.S,C. § 543(a)). Receiver's authority to preserve the property shall be limited as follows: Receiver may make only those disbursements necessary to preserve and protect the property and Receiver shall do nothing that would effect a material change in the circumstances of the property. c) Turn Over Property If No Motion For Relief Is Filed Within 10 Days After Notice Of The Bankruptcy. If the party who obtained the receivership does not file a motion within 10 court days after its receipt of notice of the bankruptcy filing, Receiver shall immediately turn over the property to the appropriate entity either to the trustee in bankruptcy if one has been appointed or, if not, to the debtor in possession and otherwise comply with 11 U.S.C. § 543. d) Retain Bankruptcy Counsel. Receiver may petition the court to retain legal counsel to assist Receiver with issues arising out of the bankruptcy proceedings that affect the receivership. 26. All items subject to the receivership and all proceeds which are received, or have been received, by Borrower, its agents, servants, employees, or representatives, or any persons or entities acting under or in concert with Borrower, shall be turned over to Receiver within 48 hours of the date that this Order is served on Borrower, and Borrower shall simultaneously, upon 9 STIPULATION AND ORDER FOR APPOINTMENT OF RECEIVER said turnover, deliver to Receiver written verification of the source of all said monies being turned over. 27. Borrower, it agents, servants, employees or representatives, or any persons or entities acting under or in concert with Borrower, shall immediately turn over to the Receiver possession of all records, books of account, ledgers, and all documents, papers, software, and computer data pertaining to the operation of the receivership estate. IT IS FURTHER ORDERED that 28. Borrower and its officers, directors, agents, servants, and employees, and all persons or entities acting under or in concert with it --barTiTeri), are ordered to do the acts required by this Order from the date this Order is entered until the Receiver is discharged by this Court, and are restrained and enjoined from engaging in or performing, directly or indirectly, any or all of the following acts: a) Interfering, hindering, or molesting Receiver in any way whatsoever in Receiver's performance of his duties herein described and in the performance of any duties incidental thereto; b) Failing or refusing to immediately inform Receiver of the location of all Business Premises; c) Failing or refusing to immediately provide Receiver access to and entry in all premises from which Borrower conducts business; d) Preventing Receiver from accessing and entering all premises from which Borrower conducts business; e) Failing or refusing to immediately provide Receiver access to the Books and Records; f) Preventing Receiver from accessing the Books and Records; g) Moving the physical location of the Collateral, Books and Records, or Borrower's other business assets without the written consent of Receiver; 10 STIPULATION AND ORDER FOR APPOINTMENT OF RECEIVER 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 • IP I - IP By: San. arzola Its: CEO h) Transferring or encumbering, directly or indirectly, any interest by sale, pledge, grant of security interest, or assignment, the Collateral or Borrower's other business assets and all proceeds and products thereof; i) Transferring, concealing, destroying, or altering any of Borrower's books and records; and j) Causing any mail or deliveries to be forwarded or redirected to any address other than the Business Premises or otherwise interfering with or intercepting any mail or deliveries intended for Borrower. SO STIPULATED. DATED: November 7, 2019 DATED: November 7, 2019 GREEN,,,TE & ALBRECHT, LLP Illeftgh, Sc 10 • .1°P. t Attorne for 1' f aint" f Pacific Mercantile Bank DEFENDANT PLATT i M ROOFING, INC. ORDER IT IS SO ORDERED. Dated: / F" /?-0 iViary E. Arand JUDGE OF THE SANTA CLARA SUPERIOR COURT Mary E. Arand 11 STIPULATION AND ORDER FOR APPOINTMENT OF RECEIVER 388408.1 EXHIBIT B CORE General Contracior |nc., dba CORE CCO #001 B U I L D E R S License # 796393 Core General Contractor, Inc. dba CORE Builders Project: 2019-1 - Shorebreeze Rehab 470 South Market Street 460 N. Shoreline Blvd, Mountain View San Jose, California 95113 California 94043 Phone: 408-293-9728 Fax: 408-294-7059 Subcontract Change Order #001: Add Demo roofing and new roofing at existing side of Community building per Owner CONTRACT COMPANY: Platinum Roofing, Inc. CONTRACT FOR: SC-2019-1-008:Roofing 1900 Dobbin Drive San Jose, California 95133 BATE CREATED: 8/16/2019 ”CREATED BY: Geofrey Gutierrez (Core Builders) CONTRACT STATUS: Apgroved REVISION: 0 REQUEST RECEIVED LOCATION FROM: DESIGNATED REVIEWER: REVIEWED BY: DUE DATE: 08/16/201 9 REVIEW DATE: 10/1 5/201 9 INVOICED DATE: 08/16/2019 PAID DATE: REFERENCE: Platinum CHANGE REASON: Client Request PAID IN FULL: No EXECUTED: No ACCOUNTING METHOD: Amount Based SCHEDULE IMPACT: 0 days FIELD CHANGE: No TOTAL AMOUNT: $ 26,985.00 DESCRIPTION: A To demo roofing and install new roofing at the existing portion of community building per Owner request. Add $26,985 to base contract. Includes all lifting, handling, labor, cleanup, and material freight and taxes for the new material. ATTACHMENTS: SB RH Add Scope Demo roof and new roof at community buildinq 081619.0df CHANGE ORDER LINE ITEMS: CCO #001 # Cost Code Description Amount 1 07-30-00 - Steep Slope Roofing Demo and install new roof at existing part of Community Building $ 26,985.00 Subtotal: $26,985.00 Grand Total: $26,985.00 The original (Contract Sum) $ 344,866.00 Net change by previously authorized Change Orders $ 0.00 The contract sum prior to this Change Order was $ 344,866.00 The contract sum will be increased by this Change Order in the amount of $ 26,985.00 The new contract sum including this Change Order will be $ 371 ,851 .00 The contract time wi|| not be changed by this Change Order by O days. Core General Contractor, Inc. dba CORE page 1 of 2 Printed On: 1/6/2020 02 :26 PM Builders CORE General Contractor Inc., dba CORE CCO #001 B U | L D E H S License # 796393 Core General Contractor, Inc. dba CORE Builders Platinum Roofing, Inc. 470 South Market Street 1900 Dobbin Drive San Jose, California 95113 San Jose, California 95133 SIGNATURE DATE SIGNATURE DATE Core General Contractor, Inc. dba CORE page 2 of 2 Printed On: 1/6/2020 02 :26 PM Builders 388408.1 EXHIBIT C Recording requested by (name): Platinum Roofing, Inc. When recorded, mail to (name and address): Platinum Roofing, Inc. 24813614 Regina P1comendras Santa Clara County - Clerk-Recorder 02/03/2021 10:30 AM 11500 W. Olympic Boulevard, Suite 530 CONFORMED COPY Los Angeles, CA 90064-1676 APN: 150-26-007 & 150-26-008 Copy of document recorded. Has not been compared with original. Recorder's Use Only Declaration of Exemption From Gov't Code § 27388.1 Fee ❑ Transfer is exempt from fee per GC § 27388.1(a)(2): ❑ recorded concurrently "in connection with" transfer subject to DTT ❑ recorded concurrently "in connection with" a transfer of residential dwelling to an owner-occupier ❑ Transfer is exempt from fee per GC 27388.1(a)(1): ❑ Fee cap of $225.00 reached ❑ Not related to real property 1. Platinum Roofing, Inc. ("claimant") claims a mechanics lien for the labor or services or equipment or materials described in paragraph 2, furnished for a work of improvement on that certain real property located in the County of Santa Clara , State of California, and more particularly described as (address and/or sufficient description): 460 N. Shoreline Boulevard, Mountain View, CA 94043 (rehab) 2. After deducting all just credits and offsets, the sum of $37,000.00 , together with interest at the rate of N/A per annum from N/A (date when balance became due), is due claimant for the following labor, materials, services, or equipment: Handling, hoisting, storing, and installation of roofing, damp, and air barrier. 3. Claimant furnished the labor or services or equipment or materials, at the request of Core General Contractors, Inc. dba Core Builders, MP Shoreline Assoc., LP and MP Shorebreeze Assoc. (employer, person, or entity to whom labor, materials, services, or equipment were furnished). 4. The name and address of the owner or reputed owner of the real property is/are: MP Shoreline Assoc., L.P., and MP Shorebreeze Associates, L.P. 5. Claimant's address is: 11500 W. Olympic Boulevard, Suite 530, Los Angeles, CA 90064-1676 Dated December , 2020 Platinum Roofing, Inc. Claimant Signature of Claimant or Author ed Sean Marzola, former CEO for Pi. Roo • , Inc. obo Print Name and Title Receiver, Kevin Singer VERIFICATION Sean Marzola , am the: former CEO ("owner," "president," "authorized agent," "partner," etc.) of claimant on the foregoing claim of mechanics lien, and am authorized to make this verification for and on its behalf. I have read the foregoing claim of mechanics lien a r know the contents of the claim of mechanics lien to be true of my own knowledge. I declare under penalty of perjury under the laws of the State of Dated December a3 , 2020 Signature CLAIM OF MECHANICS LIEN (Cal. Civ. Code § 8416) lalor " " 4 4*MDUL■ '- -AMP is true and correct. NOTICE OF MECHANICS LIEN CLAIM ATTENTION! Upon the recording of the enclosed MECHANICS LIEN with the county recorder's office of the county where the property Is located, your property is subject to the filing of a legal action seeking a court-ordered foreclosure sale of the real property on which the lien has been recorded. That legal action must be filed with the court no later than 90 days after the date the mechanics lien is recorded. The party identified in the enclosed mechanics lien may have provided labor or materials for improvements to your property and may not have been paid for these items. You are receiving this notice because it is a required step in filing a mechanics lien foreclosure action against your property. The foreclosure action will seek to pay for unpaid labor, materials, or improvements provided to your property. This may affect your ability to borrow against, refinance, or sell the property until the mechanics lien is release. BECAUSE THE LIEN AFFECTS YOUR PROPERTY, YOU MAY WISH TO SPEAK WITH YOUR CONTRACTOR IMMEDIATELY, OR CONTACT AN ATTORNEY, OR FOR MORE INFORMATION ON MECHANICS LIENS GO TO THE CONTRACTORS' STATE LICENSE BOARD WEB SITE AT www.csib.ca.gov.
