Plaintiff Zaver Patels Opposition To Defendants Motion To Dismiss With Prejudice

Opposition

Cal. Super. - 1st Dist.September 13, 2018

© o o 49 NN Ln BA W N = N N N N N N N N N N = e m e m e m p m e m e m em pe c o NN O N Un RA W D = D O O 0 0 N D R E W I N D —= Oo Yosef Peretz (SBN 209288) yperetz@peretzlaw.com David Garibaldi (SBN 313641) ELECTRONICALLY dgaribaldi @peretzlaw.com PERETZ & ASSOCIATES FILED 22 Battery Street, Suite 200 ontrottan ontiony San Francisco, CA 94111 07/09/2020 Tel: 415.732.3777 Fax: 415.732.3791 Ss Deputy Clerk Attorneys for Plaintiff ZAVER PATEL SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO ZAVER PATEL, an individual, Case No. CGC-18-569690 Plaintiff, PLAINTIFF ZAVER PATEL’S OPPOSITION TO DEFENDANTS’ ICHHARAMBHAI PATEL, an individual MOTION TO DISMISS WITH a/k/a LM. PATEL and as Trustee of the PREJUDICE Ichharambhai Madhav Patel and Shantaben I. Patel Living Trust Dated January 14, 1992; . . SHANTABEN PATEL, an individual aida _ | 1¥ial Date: July 8, 2020 S.I. PATEL as Trustee of the Ichharambhai Time: 10:00 a.m. Madhav Patel and Shantaben I. Patel Living Dept.: S05 Trust Dated January 14, 1992; VARSHA Judge: Hon. Harold E. Khan PATEL, an individual and as Trustee of (1) the Varsha I. Patel Irrevocable Family Protection Trust (2) the Ichharambhai Madhav Patel and Shantaben I. Patel Living Trust Dated January 14, 1992; (3) the Ichharambhai M. Patel Retained Interest Trust dated August 30, 2012 (4) Shantaben I. Patel Retained Interest Trust dated August 30, 2012; PATEL ENTERPRISES LP, a California limited partnership; and DOES 1- 25, inclusive, Vv. Defendants. I. INTRODUCTION Defendants ICHHAMRAMBHAI PATEL (“I.M. Patel”), SHANTABEN PATEL (“S.L Patel”), VARSHA PATEL (“Varsha”), and PATEL ENTERPRISES LP (“Patel LP”) (collectively, “Defendants”) have moved to dismiss this case at the 11" hour on the specious theory that the agreement purportedly executed by and between Plaintiff ZAVER PATEL (“Plaintiff”), LM. Patel and S.I. Patel (the “Patels”) on December 24, 1981 is a real estate listing PLAINTIFF ZAVER PATEL’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS WITH PREJUDICE o1- © o o 49 NN Ln BA W N = N N N N N N N N N N = e m e m e m p m e m e m em pe c o NN O N Un RA W D = D O O 0 0 N D R E W I N D —= Oo agreement hiring Plaintiff as the Patels’ real estate broker or agent for the sale of their five properties (the “1981 Agreement”). Defendants’ motion is without merit, both procedurally and substantively, and is borderline frivolous. Suspiciously but not surprisingly, Defendants cite to no authority upon which this motion—couched as a “motion to dismiss”— is filed or should be heard. This is not a coincidence because there is simply no authority under California civil procedure laws allowing for a party to bring a dispositive “motion to dismiss” at the 11" hour on the first day of trial, or for the Court to dismiss an action with prejudice upon such a motion. Bringing this dipositive motion at this very late stage of the case, purportedly upon the Court’s “inherent authority” rather than as a fully noticed motion, illustrates its deficiencies. Defendants deliberately chose not to submit their arguments to the Court on a fully noticed motion during the two years this case has been pending because Defendants know their argument would not stand up to strong scrutiny. Instead, Defendants are hoping to take advantage of the Court’s unfamiliarity with the facts of the case and the expeditious nature of pre-trial proceedings in one final hail-mary attempt at dismissing the case. The substantive premise of the Motion to Dismiss is equally tenuous. Defendants’ argument is premised on a single clause within the 1981 Agreement that purports to give Plaintiff the “authority” to sell five properties owned by I.M. Patel. They ask the Court to disregard all other provisions of the agreement, which, when read, conclusively establish it as an agreement for management services, not a “listing agreement” hiring Plaintiff as the Patels’ real estate broker to sell the 5 properties at the center of this case. It is a basic tenet of contract interpretation that the whole of a contract is to be taken together, so as to give effect to every part. Defendants ask the Court to do the complete opposite—to give effect to one inconsequential phrase in the contract, and to disregard the bulk of it. In so doing, Defendants ignore that a “listing agreement” hiring a real estate broker has rigid statutory requirements, which the 1981 Agreement does not meet. It does not give Plaintiff the exclusive right to sell any of the Patels’ properties, nor does it condition Plaintiff’s compensation upon Plaintiff’s efforts to sell those properties. The 1981 Agreement’s basic terms are that the Patels are “owners,” hired Plaintiff, as “manager,”—and not a listing real estate broker—to “take charge of the described premises”, and “generally to do and perform all acts and things incident to such management and to make all disbursements in connection therewith.” PLAINTIFF ZAVER PATEL’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS WITH PREJUDICE _2- © o o 49 NN Ln BA W N = N N N N N N N N N N = e m e m e m p m e m e m em pe c o NN O N Un RA W D = D O O 0 0 N D R E W I N D —= Oo These are not terms common in “listing agreement” for the sale or real estate, but typical terms included in a management agreement. Further, Defendants’ argument is completely contradicted by I.M. Patel’s own testimony. ILM. Patel was repeatedly asked at his deposition about Plaintiff's efforts in selling the five properties, and continually maintained that he never asked Plaintiff to sell any of those properties, never intended to give Plaintiff the power to sell any of those properties, and that Plaintiff had zero role in actually selling any of the properties. This testimony alone conclusively establishes that both the objective and subjective intent of the Defendants was to never hire Plaintiff to act as the Patels’ real estate broker to sell these properties. Finally, even if one accepts Defendants’ shacky position that the 1981 Agreement is a listing agreement to sell real estate and that Plaintiff was hired to act as a real estate broker under its terms, assumptions that are vigorously disputed, the contract is still not illegal. Assuming all of Defendants’ factual assertions, Plaintiff would still not have been required to have a license to engage in the acts contemplated by the agreement, for the simple reason that the Patels executed two powers of attorney forms in 1977 and on December 18, 1981 (less than one week before the 1981 Agreement was executed), granting Plaintiff the power to sell their property, among other things. The possession of a duly executed power of attorney form is a statutory exemption from the requirement to have a real estate broker’s license to engage in acts for which a license is generally required. Since Plaintiff has such power of attorney from the Patels at the time the 1981 Agreement was executed, he did not need a real estate broker’s license to execute that contract, and so it is not illegal. Finally, this specious Motion to Dismiss also contradicted by one of Defendants’ motions in limine—Motion in Limine No. 2—where Defendants argue instead that the 1981 Agreement is actually a contract for the purchase or sale of real estate, and accordingly it and its subsequent modifications are subject to the statute of frauds. On the eve of trial, Defendants are trying to throw everything at the wall and see what sticks. The Court should disregard Defendants’ last- ditch, unpersuasive, and desperate legal arguments and deny this Motion, and proceed to holding a trial on the merits of Plaintiff’s claims. II. FACTUAL BACKGROUND This action arises out of a dispute relating to a contract signed on or around December 24, 1981 between Plaintiff on one side and the Patels on the other side, promising Plaintiff a 25% PLAINTIFF ZAVER PATEL’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS WITH PREJUDICE yr © o o 49 NN Ln BA W N = N N N N N N N N N N = e m e m e m p m e m e m em pe c o NN O N Un RA W D = D O O 0 0 N D R E W I N D —= Oo share of any profits earned by the Patels following a sale of any of the five real properties subject to that agreement, in exchange for Plaintiffs many years of service in managing those properties—the 1981 Agreement. [A true and correct copy of the 1981 Agreement is attached hereto as Exhibit 1.] The 1981 Agreement applied to the following five real properties: 1. 240 7th Street, San Francisco, CA 259 7th Street, San Francisco, CA 1084 Howard Street, San Francisco, CA 135 6th Street, San Francisco, CA 214 6th Street, San Francisco, CA SA E B D [Ex. 1, p. 2.] The 1981 Agreement promised Plaintiff a 25% share of the net sales price of each of these properties to Plaintiff, in exchange for his services. The relevant provisions to this effect read as follows: 1. Owners employ manager to take charge of the described premises until termination of this contract as provided herein. 2. Owners grant to manager authority to ask, demand, collect and receive all rents and to give receipts therefor; to order, direct, and superintend all repairs and decorations and to make disbursements for same; to hire employees and to pay their salary or wages; to make all purchases; and generally to do and perform all acts and things incident to such management and to make all disbursements in connection therewith. Manager shall have the full power to lease the premises and to do all acts necessary for the carrying out of such lease. Manager shall have full power to list for sale, negotiate terms of sale and to finalize the sale of each of the above described properties and to do all acts necessary for the carrying out of a sale of the subject properties... (emphasis added.) [Ex. 1, at {q 1-2.] 4. As and for compensation, manager shall retain 25% of the net sales price for each of the aforedescribed properties... [Ex. 1, at § 4.] The 1981 Agreement did not contain a set termination date; instead, it provides that “[t]his Agreement shall terminate automatically on the sale or exchange of all five of the real properties described herein.” [Ex. 1, at 5.] On or around January 4, 1977, I.M. Patel and S.I. Patel both executed a power of attorney granting Plaintiff the power to, among other things, “lease, let, sell, release, convey, mortgage, convey by way of deed of trust....as they shall think fit; also to bargain for, buy, sell mortgage, hypothecate, and in any way and manner deal in....and to do every kind of business of what nature or kind so ever.” [A true and correct copy of this power of attorney form is attached hereto as Exhibit 2.] On or around December 18, 1981—Iess than one week before the 1981 Agreement PLAINTIFF ZAVER PATEL’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS WITH PREJUDICE _4- © o o 49 NN Ln BA W N = N N N N N N N N N N = e m e m e m p m e m e m em pe c o NN O N Un RA W D = D O O 0 0 N D R E W I N D —= Oo was executed—I.M. Patel and S.I. Patel both executed another power of attorney form granting Plaintiff the same powers as stated above. [A true and correct copy of this power of attorney form is attached hereto as Exhibit 3.] As such, Plaintiff held a “duly executed power of attorney” from the Patels to sell any of properties subject to the 1981 Agreement at the time the agreement was executed. At deposition, I.M. Patel was asked about Plaintiff’s services for him as described in the 1981 Agreement, including any of Plaintiff’s involvement in selling any of the five properties. LM. Patel denied ever telling Plaintiff that he wanted him to use the 1977 power of attorney to sell his properties. [Excerpts from the Deposition of I.M. Patel are attached hereto as Exhibit 4 (“LM. Depo”) at 424:12-17.] LM. Patel testified that before going to India in December 1981, he did not tell Plaintiff that he wanted Plaintiff to sell his San Francisco properties. [I.M. Depo at 433:14-21.] LM. Patel testified that he never told Plaintiff, at any time in 1981, that he wanted Plaintiff to sell his San Francisco properties. [I.M. Depo at 441:23-442:1.] .M. Patel specifically and repeatedly testified that he could handle any sales of his properties by himself, even when unsolicited: Q. Okay. Do you remember discussing with Zaver that you would pay him for helping at the San Francisco property? [Objection. Leading.] THE WITNESS: No, but all property I know how to sell. We don’t need nobody to help. [I.M. Depo at 439:2-7.] ...In 1981, did you ever discuss with Zaver, “I’m going to give you 25 percent of my property shares when I sell”? A. Never — all the property I purchase and all the property I sell myself. Nobody involved to come to me to help. [I.M. Depo 442:16-21.] Finally, I.M. Patel denied that Plaintiff had any role in actually selling any of the properties or that he ever even discussed sales of his properties with Plaintiff. I.M. Patel denied that Plaintiff put up the 135 6th Street property for sale, that Plaintiff introduced I.M. Patel to the purchasers, that Plaintiff ever met with the purchasers and I.M. Patel, that Plaintiff ever negotiated with the purchasers, that Plaintiff ever spoke to I.M. Patel about the sales price, or that he ever asked Plaintiff to advice to sell that property. [I.M. Depo at 484:20-485:24.] 1.M. Patel denied asking Plaintiff to try to sell the 214 6th Street property or that Plaintiff had any involvement. [I.M. Depo at 500:10-501:2.] I.M. Patel denied that Plaintiff had any involvement in the sale of the 259 7th Street property or that he ever spoke to Plaintiff about that sale and maintained that Varsha Patel PLAINTIFF ZAVER PATEL’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS WITH PREJUDICE _5. © o o 49 NN Ln BA W N = N N N N N N N N N N = e m e m e m p m e m e m em pe c o NN O N Un RA W D = D O O 0 0 N D R E W I N D —= Oo handled those items. [I.M. Depo at 520:20-521:4.] 1.M. Patel denied talking to Plaintiff about negotiating a sale of the 259 7th Street property. [[.M. Depo at 521:7-12.] Lastly, I.M. Patel denied ever talking to Plaintiff about whether to sell the 240 7th Street property, the last remaining property covered by the Agreement. [[.M. Depo at 521:22-24.] III. LEGAL ARGUMENT A. Defendants’ Motion to Dismiss is Procedurally Deficient because No Such Motion May be Filed Under California Civil Procedure Laws The present Motion to Dismiss is procedurally deficient because there is simply no authority under California civil procedure laws allowing for a party to bring a “motion to dismiss” at the 11" hour on the first day of trial, or for the Court to dismiss an action with prejudice upon such a motion. A party may bring a variety of motions during and on the eve of trial, but a motion to dismiss is not one of them. See, e.g., CCP § 581(e) (motion for voluntary dismissal), CCP §§ 469, 473, 576 (motion to amend pleadings), CCP § 607(6) (motion to re-open case-in-chief), Cal. Rule of Court 3.1332(c) (motion for continuance), Maruman Integrated Circuits v. The Consortium Co. (1985) 166 Cal.App.3d 443, 451 (motions to disqualify counsel—though such motions made at eve of trial are strongly disfavored), and Doppes v. Bently Motors, Inc. (2009) 174 Cal.App.4th 967, 971 (motion for terminating sanctions). The lack of authority for such a motion means that the Court has no evidentiary standard of proof to apply to Defendants’ assertions and Plaintiffs’ defenses. A court may only dismiss the complaint as to a defendant when a demurrer to the whole complaint or motion to strike the whole of the complaint is granted and a party files for dismissal, or after a demurrer or motion to strike the whole of a complaint is granted with leave to amend and the plaintiff fails to amend it timely. CCP § 581(f). Defendants argue that this motion may be brought before the Court at this time under the Court’s “inherent authority” pursuant to CCP § 583.150. But that statute is part of Chapter 1.5, “Dismissal for Delay in Prosecution,” and only provides that the remainder of that chapter “does not affect other law or authority relating to delay in prosecution.” See 1984 Law Revision Commission Comments to CCP § 583.150. Nowhere does this statute state that the Court has “inherent authority” to hear and rule upon a motion to dismiss at the eve of trial, and to dismiss a case with prejudice upon such motion. Since the Court does not have “inherent authority” to dismiss this matter without prejudice under CCP § 583.150, Defendants’ motion should be denied on that basis alone. CCP § 581(g). Had Defendants wanted PLAINTIFF ZAVER PATEL’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS WITH PREJUDICE -6- © o o 49 NN Ln BA W N = N N N N N N N N N N = e m e m e m p m e m e m em pe c o NN O N Un RA W D = D O O 0 0 N D R E W I N D —= Oo this relief, they should have filed a properly noticed demurrer or motion to strike the whole of the complaint. See, e.g., CCP § 581(f). Defendants also claim that their Motion to Dismiss is timely and proper because the defense of illegality can be raised by any party of the Court at any time, citing to Fellom v. Adams (1969) 274 Cal.App.2d 855, 863. But Fellom does not stand for the proposition that a Court may dismiss an action without prejudice upon an 11% hour motion to dismiss before trial, solely because the motion alleges a contract is illegal. Fellom states very clearly, “when the evidence shows that the plaintiff in substance seeks to enforce an illegal contract...the court has both the power and duty to ascertain the true facts in order that it may not unwittingly lend its assistance to the enforcement of an illegal contract.” 274 Cal.App.2d at 863 (emphasis added). This language does not permit the Court to dismiss this action without prejudice at this time. Instead, at best, it permits the Court to inquire into further evidence about the purported illegality of the contract, but only if some evidence shows the contract is illegal. Since the Court is the fact-finder in this trial, the Court can make these inquiries during the Parties’ cases-in-chief. Indeed, Defendants point out that one of their affirmative defenses claims the 1981 Agreement is null, void, and unenforceable. As such, this is an argument left to be resolved after trial, not upon a motion to dismiss with little evidence submitted at the eve of trial B. The Parties’ Agreement is not a Listing Agreement Hiring Plaintiff as a Real Estate Broker; it is a Contract for Management Services to be Paid Via Future Profits Business and Professions Code (“Bus. & Prof. Code”) § 10130 states that it is “unlawful for any person to engage in the business of, act in the capacity of, advertise as, or assume to act as a real estate broker or a real estate salesperson within this state without first obtaining a real estate license.” Relevant here, Bus. & Prof. Code § 10131 reads as follows: A real estate broker within the meaning of this part is a person who, for a compensation or in expectation of a compensation, regardless of the form or time of payment, does or negotiates to do one or more of the following acts for another or others: (a) Sells or offers to sell, buys or offers to buy, solicits prospective sellers or buyers of, solicits or obtains listings of, or negotiates the purchase, sale, or exchange of real property or a business opportunity. (b) Leases or rents or offers to lease or rent, or places for rent, or solicits listings of places for rent, or solicits for prospective tenants, or negotiates the sale, purchase, or exchanges of leases on real property, or on PLAINTIFF ZAVER PATEL’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS WITH PREJUDICE «7 © o o 49 NN Ln BA W N = N N N N N N N N N N = e m e m e m p m e m e m em pe c o NN O N Un RA W D = D O O 0 0 N D R E W I N D —= Oo a business opportunity, or collects rents from real property, or improvements thereon, or from business opportunities. (e) Sells or offers to sell, buys or offers to buy, or exchanges or offers to exchange a real property sales contract, or a promissory note secured directly or collaterally by a lien on real property or on a business opportunity, and performs services for the holders thereof. Bus. & Prof. Code § 10131.01(a) provides that subdivision (b) of Bus. & Prof. Code § 10131 above does not apply to “the manager of a hotel [or] motel,” or a “resident manager of an apartment building [or] apartment complex.” Further, Bus. & Prof. Code § 10133 provides that all acts described in Bus. & Prof. Code § 10131 above are not acts for which a license is required if they are performed by, among other things, “[a] person holding a duly executed power of attorney from the owner of the real property with respect to which the acts are performed.” Based on the above statutes, Defendants claim that the 1981 Agreement is a contract in which the Patels hired Plaintiff to act as a “real estate broker” or “real estate salesperson” despite not having a license, thereby requiring Plaintiff to engage in an illegal act. Accordingly, Defendants argue that this renders the entirety of the 1981 Agreement illegal, unenforceable, and void ab initio under Civil Code §§ 1608 and 1667. Defendants’ entire argument is premised on one clause within the 1981 Agreement, which granted to Plaintiff the “full power to list for sale, negotiate terms of sale and to finalize the sale of each of the above described properties and to do all acts necessary for the carrying out of a sale of the subject properties...” [Ex. 1 at {2.] In effect, Defendants argue that the presence of this clause alone, without any consideration of the remainder of the contract terms, renders the entire 1981 Agreement an illegal “listing agreement” between [.M. Patel and S.I. Patel on the one hand as sellers, and Plaintiff on the other hand as an unlicensed real estate broker. This claim is without any basis in law or fact and is undermined and contradicted by ILM. Patel’s own testimony concerning his business relationship to Plaintiff. As a threshold point, it is a basic canon of contract interpretation that a contract must be read and interpreted holistically, “taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.” Civil Code § 1641. To arrive at their specious theory that it is a listing agreement, Defendants ask the Court to ignore all of the other provisions in the 1981 Agreement except the part of a clause granting Plaintiff the “full power” to list the properties for sale and negotiate the terms of a sale. Their construction PLAINTIFF ZAVER PATEL’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS WITH PREJUDICE _8- © o o 49 NN Ln BA W N = N N N N N N N N N N = e m e m e m p m e m e m em pe c o NN O N Un RA W D = D O O 0 0 N D R E W I N D —= Oo gives zero effect to the provisions of the agreement that establish Plaintiff's compensation was based entirely on provision of managerial services, providing Plaintiff as the “manager” the tools to do his job. Along that line, the 1981 Agreement states that “[o]wners employ manager [Plaintiff] to take charge of the described properties herein,” provides Plaintiff authority to engage in certain actions, including not only listing the properties for sale but also to collect rent, hire employees, and “generally to do and perform all acts and things incident to such management and to make all disbursements in connection therewith.” [Ex. 1 at 2.] As “compensation” for these services, “manager shall retain 25% of the net sales price for each of” them. [Ex. 1 at {{2, 4.] These terms clearly establish that the 1981 Agreement is a contract for services, not a listing agreement. To construe it as a listing agreement would fail to give full and fair effect to these provisions. Contrary to the 1981 Agreement at issue, a “listing agreement” is statutorily defined as “a written contract between a seller of real property or a business opportunity and a real estate broker by which the broker has been authorized to sell the real property or find or obtain a buyer, including rendering other services for which a real estate license is required to the seller pursuant to the terms of the agreement.” Bus. & Prof. Code § 10018.14; Civ. Code § 1086(f); McAvoy v. Hilbert (2009) 172 Cal.App.4th 707, 712. There are three types of “listing agreements:” an “exclusive right to sell listing agreement,” a “seller reserved listing agreement”, and an “open listing agreement.” Bus. & Prof. Code § 10018.14. An “exclusive right to sell listing agreement” grants the seller’s agent, for a specified period of time, the exclusive right to sell, find or obtain a buyer for the real property. The seller’s agent is entitled to the agreed compensation if, during the specified period of time, the property is sold, “no matter who effected the sale,” or when the seller’s agent receives and presents to the owner any enforceable offer “from a ready, able and willing buyer on terms that are authorized by the listing agreement or accepted by the owner.” Bus. & Prof. Code § 10018.15; Century 21 Butler Realty, Inc. v. Vasquez (1995) 41 Cal. App.4th 888, 891. An exclusive listing agreement must “contain a definite, specified date of final and complete termination.” Bus. & Prof. Code § 10176(f). A “seller reserved listing agreement” is identical to the above, except “[c]ompensation is not owed to the seller’s agent if the owner sells the property directly and not through any other broker.” Bus. & Prof. Code § 10018.16. These agreements also must “contain a definite, specified date of final and complete termination.” Bus. & Prof. Code § 10176(f). An “open listing agreement” grants “no exclusive rights or priorities” PLAINTIFF ZAVER PATEL’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS WITH PREJUDICE _9- © o o 49 NN Ln BA W N = N N N N N N N N N N = e m e m e m p m e m e m em pe c o NN O N Un RA W D = D O O 0 0 N D R E W I N D —= Oo to the seller’s agent; and a commission is payable to the seller’s agent only if that agent “obtains and presents to the owner an enforceable offer from a ready, able, and willing buyer on the terms authorized by the listing agreement, which is accepted by the owner, before the property is otherwise sold either through another licensee or by the owner directly and before the listing agreement expires by its terms or is revoked by the seller’s agent or the owner.” Bus. & Prof. Code § 10018.17. The 1981 Agreement is obviously not a listing agreement under either of the above definitions. The 1981 Agreement does not purport to give Plaintiff the “exclusive” right to sell the five properties, so it cannot be an “exclusive right to sell listing agreement” or a “seller reserved listing agreement.” Bus. & Prof. Code §§ 10018.15; 10018.16. Nor does the 1981 Agreement also does not contain “a definite, specified date of final and complete termination,” as required to be one of these listing agreements. Bus. & Prof. Code § 10176(f). The 1981 Agreement also cannot be an “open listing agreement” because it does not provide that Plaintiff will be paid only if Plaintiff “obtains and presents to the owner an enforceable offer from a ready, able, and willing buyer” for the five properties before the property is otherwise sold or the agreement is revoked. Bus. & Prof. Code § 10018.17. The 1981 Agreement does not even impose any obligations on Plaintiff to sell the five properties at all in exchange for compensation. It merely authorizes Plaintiff to “list for sale, negotiate terms of sale and to finalize the sale” of each property. In that sense, it is no different than the powers of attorney that I.M. Patel and S.I. Patel granted to Plaintiff on January 4, 1977 and December 18, 1981. [Ex. 2 and 3.] Ifit were a “listing agreement,” Plaintiff would have been identified as “broker,” not “manager,” and it would have either given Plaintiff the exclusive right to sell the properties or made his compensation contingent on making efforts to sell the properties. Bus. & Prof. Code § 10018.15-10018.17. Accordingly, it is clear that the 1981 Agreement is not a “listing agreement,” but is instead a basic employment contract and/or a profit-sharing agreement. Further, Defendants’ position that the 1981 Agreement is a listing agreement hiring Plaintiff for the purpose of selling the Patels’ properties is entirely contradicted by I.M. Patel himself. I.M. Patel testified numerous times at his deposition that he never told Plaintiff that he wanted Plaintiff to sell his properties. [I.M. Depo at 433:14-17, 441:23-442:1.] LM. Patel specifically and repeatedly testified that he could handle any sales himself: “No, but all property I know how to sell. We don’t need nobody to help.” [I.M. Depo at 439:2-7, 442:16-21.] LM. PLAINTIFF ZAVER PATEL’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS WITH PREJUDICE -10- © o o 49 NN Ln BA W N = N N N N N N N N N N = e m e m e m p m e m e m em pe c o NN O N Un RA W D = D O O 0 0 N D R E W I N D —= Oo Patel also denied ever telling Plaintiff that he wanted him to use the 1977 power of attorney to sell his properties. [I.M. Depo at 424:12-17.] 1.M. Patel denied ever even discussing sales of his properties with Plaintiff. [ILM. Depo at 521:7-12, 521:22-24.] Finally, I.M. Patel denied that Plaintiff had any role in actually selling any of the properties. [I.M. Depo at 484:20-22, 500:10- 501:2, 520:20-521:4.] This testimony completely undermines Defendants’ position that the 1981 Agreement is a listing agreement. According to I.M. Patel, he never intended or hired Plaintiff to sell any of his properties and maintains he did all of that work by himself, or had Varsha Patel do it. That testimony cannot be reconciled with the argument that the 1981 Agreement is a listing agreement hiring Plaintiff to sell those properties. Throughout pre-trial motion practice, Defendants have been unable to make up their minds about what sort of contract the 1981 Agreement is. In Defendants’ Motion in limine No. 2, for example, they argued that the 1981 Agreement is a contract for the purchase or sale of real estate and thus is subject to the statute of frauds along with all of its modifications. There again, Defendants’ construction of the 1981 Agreement was completely erroneous. A contract for the sale of real property must contain the following essential terms: proper identification of the seller and buyer, the price to be paid, and a description of the property. Patel v. Liebermensch (2008) 45 Cal.4th 344, 349 (emphasis added). The 1981 Agreement is not a contract for the sale of real property, because it does not identify the Patels as the “sellers” of the five properties, nor does it identify Plaintiff or any other party as the “buyer” of those properties, nor does it identify any specific price to be paid by Plaintiff for any of those properties. Instead, the Patels are identified as “owners” and Plaintiff is identified as a “manager.” The fact that all these properties were actually sold to third parties, not Plaintiff, strongly supports the conclusion that the 1981 Agreement was not a contract for the purchase or sale of real estate. The fact that I.M. Patel maintains that Plaintiff was not even involved in the sales of those properties also strongly supports that the 1981 Agreement is not a listing agreement hiring Plaintiff as a real estate broker. Defendants’ alternate interpretations of the contract are erroneous and illogical, and raised at the 11" hour solely to confuse the issues and mislead the Court. I" I 1" PLAINTIFF ZAVER PATEL’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS WITH PREJUDICE <1] = © o o 49 NN Ln BA W N = N N N N N N N N N N = e m e m e m p m e m e m em pe c o NN O N Un RA W D = D O O 0 0 N D R E W I N D —= Oo C. The 1981 Agreement Did Not Require Plaintiff to Engage in Illegal Acts because Plaintiff had a Duly Executed Power of Attorney from I.M. Patel and S.I. Patel when the Agreement was Executed Defendants’ argument also fails for the simple reason that even if one accepts Defendants’ specious construction of the 1981 Agreement as a listing agreement hiring Plaintiff as a real estate broker, it still did not require Plaintiff to engage in any unlawful acts. As stated above, a person is exempt from the requirement to obtain a real estate broker license when engaging in any acts described in Bus. & Prof. Code § 10131 if that person is “holding a duly executed power of attorney from the owner of the real property with respect to which the acts are performed.” Bus. & Prof. Code § 10133. Here, LM. Patel and S.I. Patel executed two separate powers of attorney, on January 4, 1977 and another on December 18, 1981, granting Plaintiff the power to, among other things, “lease, let, sell, release, convey, mortgage, convey by way of deed of trust....as they shall think fit; also to bargain for, buy, sell mortgage, hypothecate, and in any way and manner deal in....and to do every kind of business of what nature or kind so ever.” As such, Plaintiff held a “duly executed power of attorney” from I.M. Patel to sell any of I.LM. Patel’s properties at the time the 1981 Agreement was purportedly executed. [Ex. 2 and 3.] Accordingly, Plaintiff was exempt from needing to hold a real estate broker’s license at that time. Bus. & Prof. Code § 10133. Because Plaintiff did not need such a license to “list for sale, negotiate terms of sale and to finalize the sale of each of the above described properties,” the 1981 Agreement was not an illegal contract, and is not void. IV. CONCLUSION For the foregoing reasons, the Court should deny Defendants’ motion to dismiss this action. Date: July 8, 2020 PERETZ & ASSOCIATES i Yosef Peretz David Garibaldi Attorneys for Plaintiff ZAVER PATEL By: PLAINTIFF ZAVER PATEL’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS WITH PREJUDICE «12. EXHIBIT 1 DARREN ML San Francisco Assessor-Recorder Carmen Chu, Assessor-Recorder RECORDING REQUESTED BY: Sehinnes & Shain LLP DOC- 2018-K658855-00 AND WHEN RECORDED MAIL TO: Check Number 1667 AND MAIL TAX STATEMENT TO: Friday, AUG 24, 2018 08:50:34 NAME: Schinner & Shain LLP ADDRESS: 96 Jessie St Tel pd $176.00 Rept 4 opsgonate CITY: San Francisco STATE AND ZIP: CA 94105 So Assessor Parcel Number (APN): 3730-006, 3730-119 Street Address: 240 7" Street, San Francisco, CA 94103 AGREEMENT (see Attachment) Zaver Patel 00076 AGREEMENT This Agreement is made this 24tkday of December, 1981, between I. M. PATEL, S. I. PATEL, of 2620 Skyfarm Drive, Hillsborough, Cali- fornia, herein referred to as owners, and ZAVER N. PATEL, of 101 Alta Vista Way, Daly City, California, herein referred to as manager. The parties recite that: A. Owners own five real properties, together with improvements thereon, located in the City and County of San Francisco, State of California, and commonly known as: 1. 240 7th Street San Francisco, CA 2. 259 7th Street San Francisco, CA Se 1084 Howard Street San Francisco, CA 4. 135 6th Street San Francisco, CA 5. 214 6th Street San Francisco, CA B. The above described properties consist of two motel s, one hotel and two apartment houses. Owners desire to hire manag er and grant him full power to lease, manage, list for sale and sell the above described premises. In consideration of the mutual covenants set forth belo w, the parties agree as follows: 1. Owners employ manager to take charge of the described premises until termination of this contract as provided herein. Zaver Patel 00077 Agreement December2y , 1981 Page 2 2. Owners grant to manager authority to ask, demand, collect, and receive all rents and to give recei pts therefor; to order, direct, and superintend all repairs and decorations and to make disbursements for same; to hire employees and to pay their salary or wages; to make all purchases; and generally to do an d perform all acts and things inci- dent to such management and to make all di sbursements in connection therewith. Manager shall have full power to lease the premises and to do all acts necessary for the carrying out of such lease. Manager shall have full power to list for sale, ne gotiate terms of sale and to finalize the sale of each of the above described p roperties and to do all acts necessary for the carrying out of a sale of the subject properties. 3. Manager shall render to owners a mon thly statement of all monies received and disbursed in connecti on with the management of the described premises, and shall pay to owners, Or their order, the bala nce thereof remaining after deducting all charges and expenses in connection therewith. Owners shall reimburse m anager for any deficiency. 4. As and for compensation, mana ger shall retain 25% of the net sales price for each of the a foredescribed properties. The 25% will be computed after all outstanding encumbrances are paid in futl, and after deducting payment of taxes, broker's fees, all liens and other fees and costs. Manager shall be entitled to draw up to $50,000 per year from the gross receipts obtained. An y sums so withdrawn by manager shall be deducted from the 25% figures ment ioned in the proceeding paragraph. Zaver Patel 00078 Agreement December 24, 1981 Page 3 It is understood that manager's entitlement to draw up to $50,000 per year is not in addition to the compensation set forth in the proceeding paragraph. 5. This Agreement shall terminate automatically on the sale or exchange of all five of the real properties described herein. \ mg I. M. PATEL Owner S-T~ 78d ¥§. S.1PATEL Owner \ ey nN: Y wha 2 "Shel onl) PATEL RN State of California ) ) ss. County of San Francisco) On this 24th day of December in the year of one thousand nine hundred and eighty one, before me, Judy Yamamoto, a Notary Public, State of California, duly commissioned and sworn, personally appeared I. M. Patel, 5S. I. Patel and Zaver N. Patel, known to me to be the persons described in and whose names are subscribed in the within instrument, and acknowledged to me that they executed the same. erp TE RE s Ls | FER uy aM ANELS : Notap a , State of @&Xifo rnia E 2) NOTARY PUELIC-CALIFORNIAZ 74 PRINCIPAL OFFI CE IN CITY AND COUNTY OF SAN FRANCISCO 3 My Commission Explres Feb. 1,1 985 32 a SpE ET SI S A firarragasrn asec RETLIIINTY Zaver Patel 00079 EXHIBIT “A™ Situs: 240 7th Street, San Francisco, California 94103 A.PN. 3730-119 end 3730-006 PARCEL ONE: BEGINNING at a point on the southwesterly line of Seventh Street, distant thercon 225 feet southeasterly from the southeasterly line of Howard Street; nunning thence southeasterly and along said line of Seventh Street 50 feet; thence at a right angle southwesterly 85 feet; thence at a right angle northwesterly 50 fect; thence at a right angle northeasterly 85 feet to the point of beginning. Being part of 100 Vara Block No. 408. PARCEL TWO: COMMENCING at a point on the northeasterly linc of Langton Street, distant thercon 250 feet southeasterly from the southeasterly line of Howard Street; running thence southeasterly long the northeasterly line of Langton Street 25 feet; thence at a right angle northeasterly 80 fect; thence at a right angle northwesterly 25 feet; thence at a right angle southwesterly 80 feet to the northeasterly line of Langton Street and the point of commencement. BEING a part of 100 Vara Block No, 408. PARCET, THREE: BEGINNING at a point on the southwesterly line of Seventh Street, distant thereon 227 feetand 6 inches northwesterly [rom the northwesterly line of Folsom Street; running thence northwesterly along said line of Seventh Street 47 feet and 6 inches; thence at a right angle southwesterly 165 feet to the northeasterly line of Langton Street; thence at a right angle southeasterly along said linc of Langton Street 47 feet and 6 inches; thence at a right angle northeasterly 165 feet to the point of beginning. Being a portion of 100 Vara Block No. 408. PARCEL FOUR: BEGINNING at 2 point on the southwesterly line of Langton Street, distant thercon 250 feet northwesterly from the northwesterly line of Folsom Street; running thence northwesterly along said line of Langton Street 25 feet; thence at a right angle southwesterly 75 feet; thence at a right angle southeasterly 25 feel; thence at a right angle northeasterly 75 feet to the point of beginning. Being part of 100 Vara Block No, 408. $1331000X3126\Purahip\Deeds\240 7th 5t Deed io LP wpd Pag e 4 of 4 Zaver Patel 00080 EXHIBIT 2 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO COoPprRY r i Name Street Address iA L | SPACE ABOVE THIS LINE FOR RECORDER'S USE == EE CP EME iaeeaesarieiaasaseeertean etait atet esas as tana ara teat atats ete aranas tsa ae esata nae ratte tasters {Ty Ck T——— attorney ............. in fact, for ....U$........ and in ..QUX.... name. $......, and for QUT. use| with full power of substitution and benefit ........0... eo a eT ERR to demand, sue for, collect, and receive all such sums of money, debts, dues, accounts, legacies, bequests, interests, dividends, annuities, and demands whatsoever, as are now or shall hereafter become due, owing, payable, or belonging to ....81ther of us . and have, use, and PERE aaa Erase anaes sans Nettie eRRes aa ERI Rtas take all lawful ways and means in ........... LC name.2.... or otherwise for the recovery thereof by attachment, arrest, or otherwise, and lo compromise and agree for the same, and to make and deliver discharges for the same for US... and in OYE... nameS......; to contract for, purchase, receive, and take lands, tenements, and hereditaments, and accept the seisin and possession of all fd lands, and all deeds and other assurances in the law therefor, and to lease, let, sell Ei a RL TOT Tron release, convey, mortgage, convey by way of deed of trust, and hypothecate lands, tenements, and . Lo & na 3 mes oe hereditaments upsn such terms and conditions, and under such covenants as ....%%... shail think Jit; also to bargain for, buy, sell, mortgage, hypothecate, and in any way and every way and manner deal in and with goods, wares, and merchandise, choses in action, and other property in possession or in action, and to do every kind of business of what nature or kind soever; and also Jor. SUS... and in wnQBE...... name.B..... , and as ...QVE........... act and deed lo make, sign, seal, execule, acknowledge, and deliver deeds, leases and assignments of lease, covenants, indentures, agreements, mortgages, deeds of trust and reconveyances thereunder, hypothecations, bottomries, charter-parties, bills of lading, bills, bonds, notes, receipts, evidences of debt, releases and satisfaction of mortgage, judgments, and other debts, and such other instruments in writing of whatever kind and nature as may be necessary, convenient, or proper in the premises including assignments of accounts receivable, notices of the expected assignments of such accounts, and cancellation of such notices; also, in case of loss by fire, or otherwise, to adjust insurance losses. : Biuving unto OL... said attorney... full power to perform every act and thing which DUB nd may think necessary to be done in and aboul the premises, as fully to all intents and purposes as ....eLthexr of us... might or could do if personally present .............cccceeu.... hereby ratifying and confirming all that ........ OE sr i WR TR Ts vee said attorney.......... | Hib be i TE see shail lawfully de or cause to be done by | virtue of these presents. Hl fi In Witness hereof ve. have hereunto set ..... QUT. handS..... the 18th | day of ....... REeRIE Cn sveeisenen. ONE thousand nine hundred and ....818RTY..QR8....coooeeiiii. - 1 Signed and Delivered in the Presence of of / ; wn // LH 74 bits. bikes. 02. Ls Rts bios [i Rl ecm | 1 Ee EEE ellis eee Eat as assests eeNaT Est lsTas sete t eters tatnenn | | Tris document 15 Only 3 general form which may De proper (or use In imple 1ansacthions 3nd in NC way 3Cts. Of 15 intended 10 acl. as 3 subsinute fos the advice of an attorney The publisher does not make any warranty, sriher express of implied as (0 the legal vahdity of zany provision or the suitability of these forms in sny specilic transaction Cowdery 's Form No. 1022 ~ Power of Attorney ~General (C. C. Secs. 1095. 1216. 2355-6. 2933.) PATEL000188 State of California, County of SAN FRANCISCO = On this. 23RD day of....DECEMBER in the year one thousand nine hundred and... S81 , before me, _RONAID BERNARD WASHINGTON a Notary Public, | State of California, duly commissioned and sworn, personally appeared... _...... in ICHHARAMBHAIL M. PATEL AND S.1. PATEL in the 23 EER NINE RENNER NN NNO a TRO e RARER Ra ERE = OFFICIAL SEAL Ronald Bernard Washington NOTARY PUBLIC . CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO SIE My Commission Expires April 26, 1983 ENE AEN RRR E NRE E NNER ETEONaINE REE 2REER L U L L EE UT TE ES | WE EE NA NB LT NA NN S] known to me to be the person..S.describe” instrument, and acknowledged to me the: Fn Witness Whereof ; 4. SAN FRANCI: the day and year g 4 snd whose name _2LE subscribed to the within “N8Y.......executed the same. unto set my hand and affixed my official seal County of CALIFORNIA os poy fie firs above-written. Jd Beam Ws “LD BERNARD WASHINGTON Notary Public, State of California My Commission expires APRIL 26TH 1981 eee ee | ; | Esl | — i i tl o | Bz LE =O i oO ~~ : 5 i gE | | 3 : | Q (AL SA NEES ANBAR PATEL000189 EXHIBIT 3 to demand, sue for, collect, and receive all such sums of money, debls, dues, accounts, legacies, bequests, interests, dividends, annuities, and demands whatsoever, as are now or shall hereafter | become due, owing, payable, or belonging to ..... 280 Leonean and have, use, and discharges for the same for them end in .LHEIT nameS......; lo contract for, purchase, receive, and lake lands, tenements, and hereditaments, and accept the seisin and possession of all lands, and all deeds and other assurances in the law therefor, and to lease, lel, sell .......ueevereeeceeievnnnnne. release, convey, mortgage, convey by way of deed of trust, and hypothecate lands, tenements, and hereditaments upon such terms and conditions, and under such covenants as they. . shall think fit; also lo bargain for, buy, sell, mortgage, hypothecate, and in any way and every way and manner deal in and with goods, wares, and merchandise, choses in action, and other properly in possession or in action, and to do every kind of business of what nature or kind soever; and also for them. and in Lthedr ies 5 GNA GS ereeeeeececerenaenn act and deed lo make, sign, seal, execute, acknowledge, and deliver deeds, leases and assignments of lease, covenants, indentures, agreements, morlgages, deeds of trust and reconveyances thereunder, hypothecalions, bottomries, charter-parties, bills of lading, | bills, bonds, notes, receipts, evidences of debt, releases and satisfaction of mortgage, judgments, and other debls, and such other instruments in writing of whatever lind and nature as may be necessary, convenient, or proper in the premises including assignments of accounts receivable, notices of the | expected assignments of such accounts, and cancellation of such notices; also, in case of loss by fire, or | alherwise, to adjust insurance losses. supvenmvae es ae BI SA RRS said attorney.......... .. shell lawfully do or cause to be done by In {flifiens fiiherent Shsvasevans have hereunto sel LJ Eheir handB....... the With esr seventy ES CHS SE NE OSAP Shetnrasen porte CORAREABER PALE es State of Galiforniy, ss. County flan Brancisce. ) On this Lth day of January in the year one thousand ning hundred and_seventy seven , before me, TL ITAS Z ERAN Cos Notary Public, State of California, duly commissioned and sworn, personally appeared. Tchharambhai M. Patel and Shantaben I. Patel known to me to be the person 5 described in and whose name are subscribed to the within instriunent, and acknowledged to me that__they executed the same. Fn Witness Thereof I have hereunto set my hand and affived my official seal in the__ __County of San Preseisao [17 4 7 £ CQ the day and year in this certificate first above written. NL pr SFr «ils 5) 3 eres GV > ILIAS D. FRANGO ) 4 B30) novany i Er Notary Public, State of California SAN MATEO COUNTY ot ; My Commission Cxpiras Nav. 2, 1977 My Commission expires. Noo =< / / 7 7 7 = BS a : a = i 23 | —-~ oc ; BE F £& | Pllc t i 3 B Q — aver she 00002 EXHIBIT 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 Volume IV Ichharambhai Patel Patel vs. Patel SUPERIOR COURT OF THE STATE OF CALIFORNIA | N AND FOR THE COUNTY OF SAN FRANCISCO UNLIMITED J URI SDI CTI ON -000-- ZAVER PATEL, an individual Plaintiff, | CHHARAMBHAI PATEL, an individua a/k/a I.M. PATEL and as Trustee of the Ichharambhai Madhav Patel and Shantaben |. Patel Living Trust Dated January 14, 1992; SHANTABEN PATEL, an individual a/k/a S.I. PATEL as Trustee of the lchharambhai Madhav Patel and Shantaben |. Patel Living Trust Dated January 14, 1992; VARSHA PATEL, an individual; PATEL ENTERPRISES LP, a California lim ted partnership; and DOES 1-25, inclusive, Defendants. VI DEOTAPED DEPOSITION OF | CHHARAMBHAI PATEL Volume IV, Pages 398 to 568 April 26, 2019 ed By: N M. REDAMONTI CSR No. 7012 Qi 10054141 Vs. No. CGC-18-569690 www.aptusCR.com Page 398 = ww NN o n Volume IV Ichharambhai Patel Patel vs. Patel REDAMONTI, a Certified Shorthand Reporter, appeared | CHHARAMBHAI PATEL follows: -000- - BE IT REMEMBERED that, pursuant to Notice, and on Friday, April 26, 2019, commencing at 11:03 a.m. thereof, at 345 California Street, Suite 2450, San Francisco, California, before me, COLLEEN M called as a witness by the Plaintiff, who having been previously duly sworn, was examined and testified as personally www.aptusCR.com Page 399 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 Volume IV Ichharambhai Patel Patel vs. Patel APPEARANCES FOR THE PLAINTIFF: SCHI NNER & SHAI'N, LLP 96 Jessie Street San Francisco, California 94105 BY: REED E. HARVEY, Attorney at Law (415) 369-9050 harvey@schinner.com FOR THE DEFENDANTS: HANSON BRIDGETT, LLP 425 Market Street, 26th Floor San Francisco, California 94105 BY: MOHAMMAD WALI ZADEH, Attorney at RI CHARD J. STRATTON, Attorney at (415) 777-3200 mwalizadeh@hansonbridge rstratton@hansonbridget t.com com ~— ALSO PRESENT: JENNIFER McKAY, Videographer VARSHA |. PATEL ZAVER PATEL -000- - Law Law www.aptusCR.com Page 400 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 Volume IV Ichharambhai Patel Patel vs. Patel www.aptusCR.com | NDEX EXAMI NATI ON BY PAGE MR. WALI ZADEH 403 LUNCH RECESS 471 MR. HARVEY 530 --000-- EXHIBITS MARKED FOR IDENTIFICATION NUMBER DESCRIPTION PAGE Exhibit 68 Power of Attorney, Bates-stamped 419 PATELOOO0O0O01 and PATELO00002, two pages. Exhibit 69 Power of Attorney, Bates-stamped 425 PATELOOO0OO0O03 and PATELOO0004, two pages. Exhibit 70 Power of Attorney, Bates-stamped 447 PATELOOO0O0O7 through PATELO00O010, four pages. Exhibit 71 Power of Attorney - General 449 (Including Durable Family Power of Attorney), Bates-stamped PATELOOOO11 through PATELOOOO15, five pages. Exhibit 72 Power of Attorney - General 451 (Including Durable Family Power of Attorney), Bates-stamped PATELOOOO16 through PATEL000020, five pages. Exhibit 73 Power of Attorney, Bates-stamped 458 PATELOOO0OO0O05 and PATELOO00006, two pages. Exhibit 74 Special Power of Attorney, 461 Bates-stamped PATELO00021 through PATELO000023, three pages Page 401 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 Volume IV Ichharambhai Patel Patel vs. Patel Exhi Exhi Exhi Exhi Exhi Exhi Exhibit bi bi bi bi bi bi 15 76 117 78 79 80 81 EXHIBITS (Continued) Commercial Lease and Deposit Receipt, Bates-stamped PATEL0O00094 and PATEL000095, two pages Special Power of Attorney and All-Purpose Acknowledgment, Bates-stamped PATEL000024 through PATELO000026, three pages. Two Uniform Statutory Form Power of Attorneys (two blank pages not stamped) Bates-stamped PATELO0O027 through PATEL000035 11 pages Handwritten document dated 2/18/2000, one page Grant Deed, with attached Exhibit A, Bates-stamped PATEL000069 through PATEL000073, five pages. Grant Deed, with Exhibit A attached, Bates-stamped PATEL0O0O0096 through PATEL000100, five pages. Letter dated August 28, 2018, from Michael G. Schinner, to Mr. |.M. Patel, Mrs. S.I. Patel, and Ms. Varsha Patel, Re: 1981 Management of Real Property Agreement Payment of Net Proceeds from Sales of Properties, with attachments, Bates-stamped PATELO0O0O0157 through PATEL000162, Si Xx pages. -000- - 463 466 468 491 510 510 522 www.aptusCR.com Page 402 [© E E E N T ] Volume IV Ichharambhai Patel Patel vs. Patel April 26, 2019 11:03 a.m PROCEEDI NGS --000-- VIDEOTAPE OPERATOR: We are now on the record Today's date is April 26, 2019. The time is 11:03. This is the deposition of I.M Patel, Volume Number 4, being taken in the matter of Patel versus Patel All those who were present at the April 26 Volume 3 depo are currently present, and you may begin. MR. WALI ZADEH: Can we swear in the witness, please? | CHHARAMBHAI PATEL, Called as a witness, after being first duly sworn, was examined and testified as follows: EXAMI NATI ON BY MR. WALI ZADEH: Q. Good morning, Mr. Patel. A. Good morning. Q. How are you today? A. Okay. Q. Good. So let me first say for the people who are here and those who are watching, | am your attorney for this Page 403 www.aptusCR.com oOo WwW 0 N O o Y U r B E W w W w N D N O N N O O N N N N N FF Fm Fm pb p m em pb pe a G l B A W O N R O WwW e N O U T E W N RE Volume IV Ichharambhai Patel Patel vs. Patel lawsuit filed by Zaver Patel. A. Okay. Q. | right now am taking a deposition of you, my client, a direct testimony deposition. That's for the record, Mr. Patel, | know you've spoken with opposing counsel about this for your depositions before, but I'm going to repeat it here, | want You're under oath, so you're going to do your best to tell the truth; correct? Yes, Mr. Patel? A. Yes, Q. Okay. If you do not understand my question, please tell me. A. Okay. Q. If you do not understand my question, please ask me to say -- ask it a different way. A. Okay. Q. Please wait for me to finish my question and | will do my best to wait for you to finish your answer. Okay? A. Okay. Q. Okay. And, Mr. Patel, | ask you to -- when you answer me, answer with yes or nos and not uh-huhs or Page 404 www.aptusCR.com oOo OW 0 N O o Y o n BE A Ww N y N O N D N D N N N N N D p = p = 0 p t p d FF p d e d f a o r B R E W N N R E O WwW O o N O Y U T EA E Ww N e Volume IV Ichharambhai Patel Patel vs. Patel shaking of the head. Can you do that for me? A. Okay. Q. Yeah. Mr. Patel, you've been doing very well when Zaver's attorney, Reed, was deposing you, and | have some questions | want to ask you as well, Okay. Are you ready? A. Yes, Q. Okay, sir. What year were you born? Do you know your birthday? A. What year | came in America? Q. No. What year were you born? What year did you come alive, your birth date? A. Came to America? Q. What year did you come to America? A. Yeah. 1951 -- Q. '51? A. | came. Q. Okay. And do you remember your hirthday heing 1928, around that time that you were born? A. | was in India. Q. Okay. All right. And you -- so -- So you remember coming to America in 1952 -- '51, Page 405 www.aptusCR.com B a w N Y oO W W OO o ~N o H u l 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Volume IV Ichharambhai Patel Patel vs. Patel Q. Okay. And on the top, it's -- it's your and y wife's name? A. Yes, Q. And then you're appointing Zaver and Pina -- A. Yes. Q. Okay. Is this another or a power of attorney document? A. Yes. Power of attorney. Q. Okay. And do you remember in 1977 if you were going to India; do you remember? our www.aptusCR.com A. | don't remember. Many times go and come. Q. Okay. And do you remember if you -- when you gave this to Zaver, did you tell him "I want you to use this power of attorney to sell my properties"? Did you say that to him MR. HARVEY: Objection. Leading THE WITNESS: No BY MR. WALI ZADEH: Q. Okay. Did you explain to Zaver, tell him why you were giving hima power of attorney? A. Well, in case emergency, something happen, he will help. Q. Okay. Thank you. I'm done with that document. MR. WALI ZADEH: Mark this next. Page 424 = ww N = O W 0 N N o o u n 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Volume IV Ichharambhai Patel Patel vs. Patel All right? Do you remember talking to Mr. Patel about this power of attorney before you went to India? A. Particular -- when he going to -- for the wedding problem, we go together there, or they probably stay here. | don't know what happened at that time Q. Okay. Did you -- did you -- Did you give Zaver this power of attorney for emergencies, just like the other power of attorneys? A. Yes. Emergency, yes MR. HARVEY: Objection. Leading BY MR. WALI ZADEH: Q. Okay. Did you -- before going to India in December 1981, did you tell Zaver, "I want you to sell my San Francisco properties"? A. No. MR. HARVEY: Objection. Leading Objection. Calls for hearsay. THE WITNESS: Selling price, nobody knows. [t's me and my wife knows only. Nobody else. BY MR. WALI ZADEH: Q. Did you -- In December 1981, hefore going to India, did you tell Zaver "I" -- "I" -- "After this trip, | want you to Page 433 www.aptusCR.com = ww N o o n Volume IV Ichharambhai Patel Patel vs. Patel BY MR. WALI ZADEH: Q. Okay. Do you remember discussing with Zaver that you would pay him for helping at the San Francisco property? MR. HARVEY: Objection. Leading. THE WITNESS: No, but all property | know how to sell. We don't need nobody to help. BY MR. WALI ZADEH: Q. In December 1981, do you remember discussing with Zaver, talking with Zaver about getting money for him hel ping you with Broadway Hotel? MR. HARVEY: Objection. Leading. THE WITNESS: No. MR. HARVEY: Objection. Calls for hearsay THE WITNESS: We never discuss BY MR. WALI ZADEH: Q. Okay. Did you discuss in December 1981 the Downtown Hotel? A. No. MR. HARVEY: Objection. Leading. BY MR. WALI ZADEH: Q. Did you discuss with Zaver in December 1981 Duboce Apartments? MR. HARVEY: Objection. Leading. THE WITNESS: No, we never talk. Page 439 www.aptusCR.com = o w w NN o n Volume IV Ichharambhai Patel Patel vs. Patel properties"? BY MR. WALI ZADEH: Q. Okay. Did you ever tell Zaver, "lI want you to manage my properties"? MR. HARVEY: Objection. Leading. Objection. Calls for hearsay. THE WITNESS: | never asked him -- (Reporter requests clarification.) THE WITNESS: | had mine set up, and my daughter handling all. MR. WALI ZADEH: | believe he said, and Reed can confirm "I never asked him " something about all the properties were set up, "my daughter was handling." MR. ZAVER PATEL: That's not what he said MR. WALI ZADEH: That's not what he said? Okay. So let's ask again. Q. I'm asking you ever, from 1970 to today, did you ever tell Zaver, "I want you to manage my San Francisco MR. HARVEY: Objection. Leading. THE WITNESS: No. | never talk -- never discuss about that. BY MR. WALI ZADEH: Q. Okay. In 1981 -- I'm going back to this time period -- did you ever tell Zaver, "I want you to sel my San Francisco properties"? www.aptusCR.com Page 441 O O WOW 0 0 ~N O Y U r B E A E w W w N D N O O N N O N N D N N FP p = p = = = = F E R =a BF U l E W N P O © 0 0 N O Y U T E W N Volume IV Ichharambhai Patel Patel vs. Patel A. No. Q. Okay. In this time period of December 1981 that we looked at that exhibit, did you ever discuss with Zaver that you would give him $50,000 a year so that he would help you with the properties? A. No. Q. Did you ever from 1971 to today ever discuss with Zaver paying him $50,000 a year to help you manage the properties? A. No, never discuss Q. In 1981, did you ever discuss with Zaver Can you hear me okay? A. Yeah. Q. Okay. Good. We're going to take a break in one moment. In 1981, did you ever discuss with Zaver, "I'm going to give you 25 percent of my property shares when | sell"? A. Never -- all the property | purchase and all the property | sell myself. Nobody involved to come to me to help. Q. So you never had a discussion -- A. No. Q. Let me finish, Mr. Patel. A. Yeah. Page 442 www.aptusCR.com oOo OW 0 0 ~N O O Ur n BAB E Ww W N e RN R O N N O N N N = p a 2 pe pe pe p a U l B W N N E O W O N o O U T ERE W N D Volume IV Ichharambhai Patel Patel vs. Patel Q. Okay. And then the next line it says escrow closing statement, sellers? A. Yes Q. Okay. And then do you see your name and your wife's name is below that? A. Yes Q. Okay. And if you could turn to the next page, again, at the top you'll see December 24th, 1986? A. Yes Q. Regarding 135 6th Street, that's Sunnyside; correct? A. Yes, yes, Q. And then this is the buyers' closing statement. Do you see the buyers? And then do you see Natvarbhai [phonetic] A. Natvarbhai [phonetic] Patel Q. Okay. What's the next name? Can you read to me the next name? A. Natvarbhai Patel. Natvarbhai Patel Q. Okay. All right, Did Zaver list -- put the Sunnyside Hotel out for sale? A. No. Q. Who did that? A. lzadiabhai (phonetic) is my very good friend. He called me and he come to my house in Hillsborough. We Page 484 www.aptusCR.com O O WOW o O ~N O Y U l B E w W w N d NN N N N N N N N N = FP = = P = P E P o r B A W N N P O WwW 0 0 N I o Y U T E A E R W N D E Volume IV Ichharambhai Patel discuss and final to do that Q. Did -- And you met with the buyers at your house? A. Yes Q. Was Zaver at that meeting? A. No. Q. Did Zaver introduce you to the buyers? A. No. Q. Okay. So how did you know the buyers? A. Well, he called me. "So you want to sell the Sunnyside?" | say, "Yes." Then they, his father and the boy, come together Q. Okay. And Zaver was not at that meeting? A. No. Q. Okay. After the meeting, did Zaver negotiate the price with the buyers? A. No. Q. Did you -- Did you talk to Zaver about the price to sell? A. No, | haven't talked. Q. Okay. Did you ask him for advice on selling Sunnyside? A. No. Q. Okay. I'm done with that document. Page 485 www.aptusCR.com Patel vs. Patel oOo OW 0 0 N N O Y U T B E W w W w N N N D ND NN N N FP Em b b Em Em p m 2 p m pe g l E W N N E O W e I o Y U T ER W N D Volume IV Ichharambhai Patel Q. Okay. After it was boarded up, and I'm just after let's say 1985, all right, and it was closed -- You said it was closed; correct? Yes. Okay. Who was taking care of the closed Hugo -- = oO X= The manager, we keep him there Q. Okay. Was Zaver managing the closed Hugo Apartments? A. There's nothing to manage. Q. Did you ask Zaver to go and find -- list the Hugo property for sale? A. What property? Q. Hugo. I'm talking about Hugo Apartments, Did you ask Zaver to go and try to sell the property? A. No one can buy because it's already -- | sold for one dollar Q. Oh. You're talking about Branch? A. Yeah. Q. Okay. I'm talking about selling to another party. A. After the few years it come in my hands. Then a San Francisco lawyer work, then possible, he calls me, lots of money to get it back. Q. Was Zaver involved with the San Francisco lawyer Page 500 www.aptusCR.com Patel vs. Patel Volume IV Ichharambhai Patel Patel vs. Patel getting back the property? A. No. He don't know Q. Okay. A. He only handle in Portland questions about Portland. give you. Q. So did you use a different lawyer in San Francisco? A. San Francisco lawyer said, "Let me try. [It you 50-, $60,000." | said, "Don't worry, | pay. But go ahead, And that's what he did And Zaver was not involved in that? This is your San Francisco lawyer? > oO Tr LO Jim Hanavan (Reporter requests clarification.) MR. STRATTON: H-a-n-a-v-a-n THE WITNESS: The lawyer BY MR. WALI ZADEH: Q. And Zaver was not involved? A. No. Q. So he helped in Portland, and Mr. Reed asked you A. Yeah. He try over there, but the lawyer very strong and liar. He never answer him No, we did not It take him six months to get it back. He tried cost try. www.aptusCR.com Page 501 Volume IV Ichharambhai Patel Patel vs. Patel A. Yes Q. Okay. And the first The first line says 259 7th Street? A. Yes Q. Okay. And it's dated October 30th, 2017, and it's the purchaser, it says, Anil [phonetic] Patel? A. Yeah. Q. Okay. And you talked yesterday -- A. A. Q. A. Q. about agreement for 259 7th Street. purchase agreement? buyers, the purchasers, to help sell this property? |"1l just represent, this is the purchase Right. Who was handling this purchase agreement for you? Huh? Who was handling this purchase agreement for you? Well, Varsha handling | think. Okay. Was -- Do you know if Zaver was helping Varsha with this No. Okay. Do you know if Zaver was speaking with the No. Okay. Did you talk to Zaver about selling -- "We're going to sell this" in 2000 -- No, never talk. Page 520 www.aptusCR.com Co O ~ N o o U r B O W N = 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Volume IV Ichharambhai Patel Patel vs. Patel Q. Let me finish, In 2017, did you talk to Zaver about negotiating a sale of 259 7th Street? A. No. Q. I''m -- When you -- Do you remember if Zaver ever told you, "You should sell both 7th Center [sic] properties at the same time? A. Never talked to me Q. He never did recommend that? A. No. Q. Okay. And you and Varsha, you haven't sold at the same time; right? A. Yeah. Q. One is sold, and you still have the other? A. Yeah. Q. Are you -- Are you talking with Zaver now about how to manage 240 7th Street? A. | never talk to him Q. Okay. Are you talking with Zaver now about how -- whether to -- whether to sell 240 7th Street? A. No. MR. WALI ZADEH: Okay. Let's mark this next. Page 521 www.aptusCR.com = ww NN o n Volume IV Ichharambhai Patel Patel vs. Patel MR. WALI ZADEH: Okay. Thank you. No further redirect. We're done Thank you, Mr. Patel Thank you, Mr. Patel VIDEOTAPE OPERATOR: This marks the end of today's deposition, Volume Number 4 Going off the record The time is 3:51. MR. WALI ZADEH: Thank you, everyone. Have a great weekend. THE WITNESS: You're a good man, good man. You work hard MS. REPORTER: Do you guys both want copies? MR. WALI ZADEH: Yes. MR. HARVEY: Yes. MR. WALI ZADEH: And video, too. (Signature having not been waived, the deposition of Ichharambhai Patel was concluded at 3:52 p.m) --000-- Page 564 www.aptusCR.com [© E E E N T ] Volume IV Ichharambhai Patel Patel vs. Patel CERTIFI CATE OF SHORTHAND REPORTER |, Colleen M. Redamonti, Certified Shorthand Reporter, the officer before whom the foregoing proceedings were taken, do hereby certify that the foregoing transcript is a true and correct record of the proceedings; that said proceedings were taken by me stenographically and thereafter reduced to typewriting under my supervision; and that | am neither counsel for related to, nor employed by any of the parties to this case and have no interest, financial or otherwise, in its outcome. IN WITNESS WHEREOF, | have hereunto set my hand and affixed my signature this 15th day of May 2019, Lote wn. Ra damondi COLLEEN M. REDAMONTI, CSR 7012 Page 565 www.aptusCR.com