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MINUTES - 10091990 - 1.9
AMENDED CLAIM BOARD OF SUPERVISORS OF CONTRA COSTA"COUNTY, CALIFORNIA Claim Against the County, or District.governed by) BOARD ACTION the Board of Supervisors, Routing Endorsements, ) NOTICE TO CLAIMANT O C T O BER 9 , 1990 and Board Action. All Section references are- to ) The copy of this document mailed to;iyou is your notice of , California Government Codes. ) the action taken on your claim by the Board ;of Supervisors (Paragraph IV below).,1glRe�nj1pu.rsuant to Government Code Amount: Undetermined Section 913 and 915.4, Please notes all "Warnings", CLAIMANT: CALLAHAN, .Sherry Boehme 191 HUGHES , Jonathan "Jay .E. A°RNlFzuF ATTORNEY: P.O . Box 2164, Santa Rosa, CA 95405 Date received ADDRESS: BY DELIVERY TO CLERK ON September 10 , 19.90 (viae Counsel) BY MAIL POSTMARKED: I. FROM: Clerk of the Board of Supervisors TO: County :Counsel Attached is a 'copy of the above-noted claim. �aIL gATCHELOR, Cler i� ! DATED September 11 , 1990 : Deputy ,i II. FROM: County. Counsel TO: Clerk of the Board of Su visors I� �V ) This claim complies substantially with Sections 910 and •910.2. � . ( ) This claim FAILS to comply substantially with Sections 910 and 910.2, and we are so notifying claimant. The Board cannot act for 15 days (Section 910.8)._ ( ) Claim is not timely filed; The Clerk should return claim on ground that it was filed late and send ` warning of claimant's right to apply for leave to present a late claim .(SectiIn 911.3). i I , ( ) Other: j� Dated: �� J BY: !Ef�Z__ !i Deputy County Counsel , III. FROM: Clerk of the Board TO: County Counsel (1) County Administrator (2) ,' ( ) Claim was returned as untimely with notice to claimant (Section 911.3). i IV. BOARD OR . By.unanimous vote of the Supervisors present 11 ( ) This Claim is rejected in full, ( ) Other: J I certify that this A s a:true and correct copy of the Board's Order entered�in its minutes for this date. Dated: 0 CT 9 1990'. PHIL BATCHELOR, Clerk, By , Deputy Clerk �j WARNING (Gov. codes ti 3) Subject to certain exceptions, you have only six (6) months from the date this notice .wa1s personally served or deposited in the mail to filea court action on this claim. See Government Code Sectioni945.6. " You may seek the advice of an attorney of your choice in connection with this matter. If you want to consult an attorney, you should do so immediately, I; AFFIDAVIT OF MAILING I declare under penalty of perjury that I am now, and at all times herein mentioned, have been a citizen of the United States, over age 18; and that today. I.deposited in the United States Postal Service in Martinez, California, postage fully prepaid a certified copy of this Board Order and Notice to Claimant, addressed to the claimant as shown above. OCT 9 1990 Dated: _ BY: PHIL BATCHELOR by Deputy'' Clerk it CC: County Counsel County Administrator j :. 2BOEHME CALLAHAN and JONATHAN "JAY" E; HUGHES - in Pro Per S � . Box 2164 RECEIVED s Santa Rosa, Ca. 95405 vt 14- l0gg b CLERK BOARD OF SUPERV S SUPERIOR COURT, STATE OF CALIFORNIA, COUNTY OF CONTRA CONTRA COSTA CO 6 MARTINEZ 7 SHERRY BOEHME CALLAHAN AND CASE N0' C90-013b7 JONATHAN "JAY" E. HUGHES, NOTICE PRIOR TO FILING 8 Plaintiffs, CLAIM AGAINST THE COUNT AGAINST JUDGE RICHARD IO v3. L. PATSY CONCERNING' THE ABOVE ENTITLED CASE 1' JUD(E ELLEN S. JAMES; KATY (RONOWSKI, ESQ,; NDED COUNTY OF CONTRA COSTA; MICHEL & M.ANNING; ' 12 and-ATTORNEY DAVID WI MALL, - Defendants. ` 13 SHERRY BOEHME CALLAHAN and JONATHAN "JAY" E. HUGHES did give notice that they did y" intend to sue JUDGE RICHARD L. PATSY and the .COUNTY OF CONTRA COSTAIfor the a I5 ' alleged fraudulent conduct ;of Judge Patsy in the case against Judge'!Ellen S. James. 16 SHERRY BOEHM CALLAHAN and JONATHAN "JAY" E. HUGHES do hereby amend!;that notice in I+ 17 compliance with ERHIBIT A which was just received from Deputy County Counsel with 18 numbers 3 and 5,having been checked. 19 As to number 5, the amount was not stated, as the amount would be determined by a i 20 justice; however the charges of: ABUSE OF PROCESS; FRAUD; CONSPIRACY; and 21 NEGLIGENT AND/OR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS would certainly be i i 22 in excess of $10.000. The jurisdiction would certainly be in Superior Court i As to number 3, documentation was given that the alleged fraudulent conduct of Judge Patsy resulted from events that transpired in the hearings of''Case No. 14 C90-01367 against Judge Ellen S. James, ET AL in Judge Patsy's court in Martinez on June 27, 1990 and on July 11, 1990 with the resulting judgments. (EXHIBITS !s A & B) 7 DATED: B04Tt CALF DATED: Lz/ l JONATHA.R' AYE . HUGHES / NOTICE OF INSUFFICIENCY AND/OR NON-ACCEPTANCE OF CLAIM TO: Sherry Boehme Callahan and Jonathan "Jay" E. Hughes P.O. Box 2164 Santa Rosa, CA 95405 Re: Claim of SHERRY BOEHME CALLAHAN and JONATHAN "JAY" E. HUGHES Please Take Notice As Follows : The claim you presented against the County of Contra Costa or District governed by the Board of Supervisors fails to comply substantially with the requirements of California Government Code section 910 and 910. 2, or is otherwise insufficient for the reasons, checked below: 1 . The claim fails to state the name and post office address of the claimant. 2. The claim fails to state the post office address to which the person presenting the claim desires notices to be sent. x 3 . The claim fails to state the date, place or other circumstances of the occurrence or transaction which gave rise to the claim asserted. 4 . The claim fails to state the name(s) of the public employee(s) causing the injury, damage, or loss, if known. x 5 . The claim fails to state whether the amount claimed exceeds ten thousand dollars' ($10,000) . If the claim totals less than ten thousand dollars ($10,000) , the claim fails to state the amount claimed as of the date of presentation, the estimated amount of any prospective injury, damage or loss so far as known, or the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10, 000) , the claim fails to state whether jurisdiction over the claim would rest in municipal or'; superior court. 6 . The claim is not signed by the claimant or by some person on his behalf . 7 . Other: VICTOR J. WEST ounty Counsel -5- By:By: Deputy County Counsel CERTIFICATE OF SERVICE BY MAIL C.C.P.-S9 1012 , 1013a, 2015 . 5; Evid. C. f;f;` 641 , 664 ) My business address is the County Counsel' s Office of Contra Costa County, Co. Admin, Bldg. , P.O. Box 69, Martinez, California, 94553, and' I am a citizen of the United States, over 18 years of age, employed in Contra Costa County, and not a party to:, this action. I served a true copy of this Notice of Insufficiency and/or Non Acceptance of Claim by placing it in an envelope(s ) ' addressed as shown above (which is/are place(s ) having delivery service by U.S. Mail ) , which envelope(s ) was then sealed and postage fullyfprepaid thereon, and thereafter was , on this day deposited in the U.S . Mail at- Martinez/Concord, Contra SHERRY BOEHME CALLAHAN Arita JONATHAN "JAY" E. HUGHES - in Pro Per 2 P.O. Box 2164 Santa Rosa, Ca. 95405 4 SUPERIOR COURT, STATE OF CALIFORNIA, COUNTY OF CONTRA COSTA, b MARTINEZ 6 i SHERRY BOEHVIE.�,CALLAHAN and CASE NO. C90-01367 ? JONATHAN "JAY" E. HUGHES, NOTICE"'PRIOR TO FILIIIQ_ CLAIM 8 Plaintiffs, AGAINST THE COUNTY AGAINST • JUDGE RICHARD L. PATSY CONCERN G 9 vs. TF3 ABOVE ENTITLED CASE 10 JUDGE ELLEN S. JAMS; KATY• GRON04JSKI, ESC. ; COUNTY OF 11 CONTRA COSTA; ,y:ICHEL & ?•ANNING; and ATTORNEY DAVID F;IGT:ALL, 12 Defendants. 13 1NOTICE IS HEREBY GIVEN TO ME COUNTY that plaintiffs, SHERRY BOEIE-Z CALLAHAN and 15 JONATHAN "JAY" E. HUGi%S, intend to file an action against JUDGE RICHARD L. PATSY 16 concerning, .the above entitled case. The reasons are as follows; 17 1. JUDGE RICHARD L. PATSY did excuse plaintiff's legitimate default against ti!ICHEL & MANNING and their employee, KATY G.RO_JOWSKI, ESQ. on the grounds 18 that plaintiff's had filed an incomplete service of the Summons and Complaint. 19 . However the serving of the Summons and Complaint was in the hands of the 20 SherriffIs. office - JUDGE RICHARD L. PATSY was so very considerate of the Sherriff's office that it didn't bother him one bit to leave the Sherriff' s 2 1 office ooen to liable. 11.•1HY7" Because JUDGE PATSY had that one all figured out - all he had to do, he thought, was to give a bunch of double- talk or "gibbleygook" and say that MICHEL & ?ANNING had accepted service; 22 and somehow those magic words were supposed to get MICiiEL & MAN'NING as . well as the SherriffIs office "off the hook" and plaintiffs on the hoot - 23 it didn't work! 24 Plaintiffs subpoenaed Laurie Lind of the Sherriff's office who served MICi7r`Z I !'ANNDNG to testify at the hearing on July 18, 1990 to verify a 25 proper service - however JUDGE RICHARD L. PATSY did 'flatly" refuse to hear her testimony! Plaintiffs contend, "That JUDGE PATSY doesn't give 2r a 'hoot' about justice - he is only interested in protecting the interest of MICHEL & MANNING! 27 Plaintiffs are knowledvable and aware of the codes in Witkin in which a judge has a 2$ right to change judgment prior to the final judgment, and Plaintiffs cuoted a case 1 J. Martin Sproul , Esq. P MICHEL & MANNING y I� 2 A Professional Corporation JUL 18 D 2175 N. California Blvd. , Suite 300 19�0 s COU 3 Walnut Creek, California 94596 C0'IN�iir,�co". . Iti' �rrur, Telephone: (415) 945-7.319 ay sin �r�c gait 4 •1. l: j:In: n, llrP1jry Attorneys for Defendants MICHEL & MANNING, 5 a Professional Corporation and 'KATY M. GRONOWSKI 6 7 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF CONTRA COSTA 10 11 SHERRY BOEHME CALLAHAN and No. C90-01367 JONATHAN "JAY" E. HUGHES , 12 ORDER f?E !-CI"I?h�lcl}1 Tiv1J Plaintiff, CIF 13 Vs . 14 JUDGE ELLEN S . JAMES ; KATY M. DATE: July 11 , 1990 15 GRONOWSKI, ESQ. ; and COUNTY OF TIME: 8 : 30 a . m. CONTRA COSTA; and MICHEL & DEPT: 13 ' 16 MANNING, a Professional Corporation and ATTORNEY DAVID 17 WIGNALL, and DOES 1 to 30 , 18 Defendants . 19 TO EACH PARTY AND THEIR ATTORNEY OF RECORD: 20 , On July 18 , 1990, at or about 9 a . m. in the Law and Motion 21 Department No. 13 , at Contra Costa County Superior Court , 725 22 Court Street, Martinez , California , plaintiffs ' Motion for 23 Determination of Defaulf Judgment came - on regularly for hearing 24 before Honorable Judge Richard L. Patsey . Virginia L. Day 25 appeared o,n behalf of defendants , MICHEL `& MANNING , a 26 Pro ession'al Corporation , and KATY M . GPOPIOWSK r. ; SI11•PPP 11c�f:ilf11: 21 r'�11,I,/1(I11P1 n,ppoirnd n pro pnr, rrfr Ir-1wI I' I ,iirrl i i I rrr l m irr r 28 1. _parties S . . 2 The court having heard the oral arugement and good cause appearing therefor, '. Vii.:.,•• .. IT IS HEREBY ORDERED- that plaintiffs ' motion is denied in „ = 5 its entirety, as previously ordered by the court on July 11 , 6 1990, at the hearing of Defendants ' Motion to Set Aside Default 7 as follows: 8 "the court hereby ordersthat the service of summons on defendants, MICHEL & MANNING, a 9 Professional Corporation, and KATY M. GRONONSKI, be quashed and the entry of 10 default be set aside. This order is conditioned upon defendants, MICHEL & 11 MANNING, a Professional Corporation, and KATY M. GRONOWSKI 'S consent to service , and 12 agreement to answer or otherwise respond to plaintiffs ' complaint, within thirty (30) 13 days of the date of the hearing. " 14 IT IS SO ORDERED. l 15 Dated / /% RICHARD L. PATSEY, 16 Judge of the Superior Court 17 18 .19 20 21 22 23 24 25 26 1 27 28 1 Victor J. Westman a County Counsel 2 Contra Costa County Q By: Phillip S. Althoff JUL 5 - 1990 3 Deputy County Counsel S. L. WEIR. covvrY ctERK P .O. BOX 69, Co. Admin. Bldg. B' COtirRA COSTq COUNTY 4 Martinez, CA 94553 L. 8andoma, Dep,,y Phone: (415) 646-2078 5 _ Attorneys for Ellen S. James and 6 County of Contra Costa 7 8 SUPERIOR COURT OF CALIFORNIA COUNTY OF CONTRA COSTA 9 10 SHERRY BOEHME CALLAHAN and ) JONATHAN "JAY" E. HUGHES, ) No. C90-01367 11 ) Plaintiffs, ) ORDER •,12 ) V. ) 13 ) JUDGE ELLEN S. JAMES; ) 14 KATY M. GRONOWSKI, Esq. ; ) and COUNTY OF CONTRA COSTA; ) 15 and MICHEL & MANNING; and ) ATTORNEY DAVID WIGNALL, and ) 16 DOES 1 to 30, ) ) 17 Defendants. ) 18 19 Defendants Ellen S. James ' s and County of Contra 20 Costa' s ( "defendants" )- Demurrers to Complaint and Motion to 21 Strike Portions of Complaint came on regularly for hearing 22 before the Court on June 27 , 1990 . The Court having considered 23 the matter and good cause appearing therefor: 24 IT IS HEREBY ORDERED that defendants ' demurrer to 25 plaintiffs Sherry Boehme Callahan' s and John "Jay" E. Hughes ' 26 ( "plaintiffs" ) causes of action for obstruction of justice and 27 coercion is sustained without leave to amend because those 28 causes of action are not civil causes of action . I IT IS FURTHER HEREBY ORDERED that defendants ' demurrer 2 to plaintiffs ' causes of action for abuse of process, fraud, and 3 negligent and/or intentional infliction of emotional distress is 4 sustained without leave to amend because plaintiffs failed to 5 file a claim. pursuant to Government . Code sections 910 et seq-: 6 IT IS FURTHER HEREBY ORDERED that defendants' demurrer 7 to plaintiffs' cause of action for conspiracy is sustained 8 without leave to amend because no cause of action exists to 9 support such a claim'. 10 IT IS FURTHER HEREBY ORDERED that this action is 11 dismissed as to defendants . 12 13 Dated: 14 15 Judge of the Superior Cou- 16 17 PSA/jh 18 J-6:\a:\pa\bri*f\ca11ahaa.ord 19 20 21 22 23 24 25 26 27 28 2 ` Al TOP-.E-or.PAM) WITROUT Al tonN(Y W.,-.•••d A✓d eimi: T(1EP1/0841 NO. FON COOHr USr ONr t• SHERRY BOERFEL CALLAHAN & JONATHAN "JAY" E. )iUGIiES 0 P.O. Box 21.6184 Santa Rosa, Ga. 95405 r1.1 Ho o.ra.Nd in Pro Per AT ton%(Y ron IN.n,a•/ !marl"-r of cowl and name or lwd•au1 diV .l Ind l...MA--1..1#n, SUPERIOR COIRT - CONTRA COSTA 511041 !art(or CALLA-MAN; HUGHES V. JUDc;E ELLEN S._„JAMES; ET.•AL ; PROOF OF SERVICE DAIS t1r.1E. 0(vJ_ CASE CASENu/ABEn C90-0136 (Summons) �`,�/jc�- f/J• j 7 1. At the time of ser•:ice I was at ler!.-;t 18 years of age and not a party to 1hiP. action, and I served copies .: ;,'`le /specily docurrrentsl: AMENDED NOTICE PRIOR T��4 FILING A CLAIPE /1 IAINST THE COUNTY-AGAINST JUDO RICHARD L. PATSY lCl ►a b k r) 2. la. Party served 1st.)ecify Imme o/parry ns shown on the documents served!: (1) JUDO: RICHARD L. PATSY (2) Attorney Victor J. Westrpan, Cpunty Counsel h• Person served: FXI party in item 2a I other lspecily name and title or relationship to the party named in item 2a1: C. Address:, (1) P0. Box911 (2) P.O. Box 69 - 651 Pine St.-9th Floor Superior Court 1 Martinez, Ca. #94553 3.-1 served the party named in item 2 Martinez, Ca. 94553 ; a. J by personally delivering the copies (I)on (date!: . 12')at (time!: b. by leaving the copies with or in the presence of (name and title of relationship to person indicated in.item 2b].- (1) b1:(1) Q (business)a person at least 18 years of age apparently in charge at the office or usual place of business of the perso served. 1 inforried him or her of the general nature of the papers. lit �1 iiu,lr.c; is :..1:•r,ettn; rncrr.5cr ^r the hnitsrho(d (at least 18 years of age) at the dwelling house or usual place of abode of the person served. I informed him or her of the general nature of the p.-rars. 13) on !dare!: (4) at (time!: 151 1 ! A declaration of diligence is attached. (Substituted service on natural person, mirror;'cons er:atee. or candidate.) C. by mailing the co n li;v Gerson served. addressed as shown in item 2c, by first-class mail, pcst2ce prepaid, 11• on Ice:el: �o (21 from lcityl:� .ti I oc 13) (� with ties�f tht;Notice and Acknowledgment of Receipt and a postage-pai return envelope addressed to me, 1.11 1 j to an address outside California with return receipt requested. (Attach comp/eyed form.l ag d. by cousinlg copies to be A declaration of mailing is attached. C. other other (specify other manner of service and authorizing code section): 4. The "Nwice to the Person Scrved',' lot)the summons) was completed as follows: a. as an individual defendant. b. 1 as the person sued under the fictitious name of fspeeily): C. on behalf of !specify!: • under: CCP 416.10 !..orporationl CCP 416.60 Iminorl; other: CCP 416.20 idelunct corporation) CCP 416.70 (conservatee) CCP 41G.40 tassociation or partnership) © CCP 416.90 (individual). 5. Person serving (name, address. and telephone No.1: a. Fee for service: S b. Not a registered California process server. c. 0 Exempt from registration under B&P 5 22350(b). .� d. Q Registered California process server. Employee or independent contractor. Registration No.: (3) Ccunty.- . I dvC:lnre it?r:_ (,?nalty of per un(tcr the laws of the St:i-t 0, C;!. .:)rn I t!'... lh� for,_-yowg is "mc .lu: .. (';?iii- ^i,•t _hr :r.', n1. r:.. ,�. sir l:•11c:.a!tl.. iv•;f I , .illi. It:..:`h.:` • ,;Ir � . ... ,ua1 ,:On•. . .. nr,:)rr nF GFR'.'tt c F , VICTOR J. WESTMAN CONTRA COSTA COUNTY COUNSEL TO �\��� ���� P.O. BOX 69, Co. ADMIN. BLDG., MARTINEZ. CA 94553 .. DATE —� SUBJECT 1 ' C j SCQ aO I . CLERK BOARDrQNTRO F i t i AMENDED CLAIM BOARD OF SUPERVISORS OF WNTRA COSTA COUNTY, CALIFORNIA Claim Against the County, or District governed by) BOARD ACTION the Board of Supervisors, Routing Endorsements, ) NOTICE TO CLAIMANT OCTOBER 9, 1990 and Board Action. All Section references are to The copy of this document mailed to you is your notice of California Government Codes. ) the action taken on your claim by the Board of Supervisors (Paragraph IV below), given pursuant to Government Code Amount: $50,000.00 Section 913 and 915.4. Please note all "Warnings". CLAIMANT• BROOKS, Gordon Stewart ATTORNEY. Donald L. Bull, Jr. Attorney at Law Date received ADDRESS: 1111 Civic Drive, Sutie 205 BY DELIVERY TO CLERK ON September 20, 1990 (hand delivered) Walnut Creek, .CA 94596 BY MAIL POSTMARKED: I. FROM: Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. September 21 1990 &pHHIL BATCHELOR, Clerk DATED: p 8Y: Deputy �. FROM: County Counsel TO: Clerk of the Board of Su visors This claim complies substantially with Sections 910 and 910.2. ( ) This claim FAILS to comply substantially with Sections 910 and 910.2, and weiare so notifying claimant. The Board cannot act for 15 days (Section 910.8). ( ) Claim is not timely filed. The Clerk should return claim on ground that it was filed late and send warning of claimant's right to apply for leave to present .a late claim (Section 911.3). ( ) Other: Dated: �� / go BY: / JLDeputy County Counsel III. FROM: Clerk of the Board TO: County Counsel (1) County Adminis rat r (2) ( ) Claim was returned as untimely with notice to claimant (Section 911.3). IV. BOARD ORD By unanimous vote of the Supervisors present ( ) This Claim is rejected in full. (. ) Other: i I certify that this is a true and correct copy.of the Board's.Order entered in its minutes for this date. Dated: OCT 9 1990 PHIL BATCHELOR, Clerk, 8y — Deputy Clerk WARNING (Gov. code c t i or,413) Subject to certain exceptions, you have only six (6) months from the date this notice was personally served or deposited in the mail to file a court action on this claim. See Government Code Section 945.6. You may seek the advice of an attorney of your choice in connection with this matter. If you want to consult an attorney, you should do so immediately. AFFIDAVIT OF MAILING I declare under penalty of perjury that I am now, and at all times herein mentioned, have been a citizen of the United States, over age 18; and that today I deposited in the United States Postal Service in Martinez, California, postage fully prepaid a certified copy of this Board Order and Notice to Claimant, addressed to the .claimant as shown above. Dated: 0 C T 9 1990 BY: PHIL BATCHELOR by Deputy Clerk CC: County Counsel County Administrator ,i r` . . POW 4.2 AMENDED Notice of Claim Agai County of Contra Costa (Gaverrment code ss 910, 914.2 RECEIVED RETURN TO. Contra Costa County Board of Supervisors 2 0 } 651 Pine Street First Floor c�gpgRp df SUPERVISORS Martinez , CA 99553 co c(}STACO- r CIA'EIMWr S Nig: Gordon Stewart Brooks CIA QJIT S ADDRESS: 1915 Chestnut Avenue Num er STreet Antioch , CA City State P Code NAME ,AND ADDRESS OF POISON TO WHM N(D TICES REGARDING THIS CLAIM S iWM BE SENT (if different than above) : Donald L Bull Jr Attrmnr Y t "T.aw 1111 Civic D ?n5 way 94! DATE OF THE ACCIDEd r OR occuFZRE NCE: Mr c hl 3_,T 1.99 ) pIAM OF THE ACCIDENT OR OCWRRErTCE: , 1915 Chestnut Aveni�P`r Antinrh� rn GENERAL DESCRIPTION OF THE ACC:CDERr OR occLFU�Et3CE (attach adclitional pages if more space is needed: SEE ATT NAMES, IF SNOW, OF ANY PUB= EMPLOYEES CAUSING THE IN=Y OR LOSS: SEE ATTACH NAMES AND ADDRESS OF WI`.t'NESSM: +� ADDRESS TELEPHONE 1. W Investigation continuing. 2, NAME AND ADDRESS OF DOC` PS, HC).SprrALS WHERE TIEATED: TELEPHONE NAME ADDRESS 1. 2. GENEmL mscpIPTION OF mm Loss, INJURY OR "DAMAGE SUFFI'R,ED: .. r'i aht to he free from„�nnr*';4c;*bnab1 P "++=A i bFInd SP1 2urp --- • TOTAL AMOUNT CLAIMED: $50 , 000 . 00 MiE BASIS OF CCK (TI'ING THE 701AL AM7W CLAIMED IS AS FOLIAWS: Damages isxurred to date: Medical Expenses: $ Loss of Earnings: $ Special Damages for: Violation of Constitutional Rights _ $50 , 000 .00 (Attach copies if available) I/We, the undersigned, declare under penalty of perjury that I/We have read the foregoing claim for damages and know the contents thereof; that the same is true of my/our vain knowledge and belief, save and except as to those matters wherein stated on information and belief, arra as them, I/wee eve it be true. j DATED: 9-11-90 u; l ���Iv, Received in City Clerk's Office this day of , • SIGNATURE FOR CLAIMS RELATED TO INDURY TO PERSON Cit PERSONAL PROPERTY, .. THIS FtW MUST BE FLIED WITH THE CITY OF ANTIOC H WrIHIN SIX MxTIHS FROM THE ACCRUAL OF THE CAUSE OF ACTION. A CLAIM RFI ATM TO ANY anm CAUSE OF ACnoN sIIAII, BE PRESENTED NO LATER 71W ONE YEAR. AFM ACCRUAL UAL OF TM CAUSE OF ACTION. ATTACHMENT ONE On 13 March, 1990 ' a search was conducted at the above address. pursuant to a Warrant. Said warrant was issued in the investigation of Gordon Stewart Brooks, age 20, California Drivers L'icen'se number A1540819 . The claimant is the father of .the person named' in the Warrant, however, the person named in the warrant has not resided at the residence location since approximately September 1989 . During the Search of the premises, the Officers.. were advised by household members that the individual in question did not live at , the premises . During said search, the above mentioned members of. the household were threatened by the searching Officers ' and prevented from ,leaving the premises without probable cause for their detention i ,• • •, : , . . d!l ��l( �cl � �al(#��u C�u�#tl �tt�brurtx� • CRIME (section/Code/Drugs): 11357 (c) H&S CASE NO: TF90-0086E DATE & TIME: 03/13/90 14:05 TYPE OF REPORT: CLOSING LOCATION OF OCCURRENCE: 1915 CHESTNUT AVENUE, ANTIOCH,, CA SUBJECT: BROOKS, GORDON S DESC: DOB: 06/04/51 W M BRN BRN 511 160 OLN: SO433051 ST: CII: SSN: 555-76-1903 FBI: ADDRESS: 1915 CHESTNUT AVENUE, ANTIOCH, CA. 94509 SUMMARY: On 3-13-90 at approximately 1405 hours, ECCNET, CCCNET, Contra Costa County Sheriff's Department and the Antioch Police Department served a search warrant at 1915 Chestnut Avenue in Antioch. The residence was found vacant. 30 grams (AGW) of marijuana, indicia and a handgun were seized. aq/v1y I G Gb , AgentDate CCCNET SU VISOR _. "A TYPE BY - TF90-0086E EVIDENCE: Item #1 - A . large plastic baggie containing AGW 30.0 grams of . suspected marijuana found in the southwest bedroom nightstand, top drawer. Item #2 - Indicia for Gordon Brooks, a certificate of insurance was found on top of the nightstand in the southwest bedroom. Item #3 - Miscellaneous indicia for Gordon Brooks found in the livingroom, northwest side of the residence. Item #4 - Smith & Wesson .38 caliber, model 10, serial #79538 found on top of Item #1 in the southwest bedroom nightstand top drawer. INVESTIGATION• 1. On 3-13-90 at approximately 1405 hours, Officers from ECCNET, CCCNET, the Contra Costa County Sherrif's Department and the Antioch Police Department served a search warrant at 1915 Chestnut Avenue in Antioch, CA. The search warrant was signed by the Honorable Judge Belleci on March 8, 1990. 2. Myself and four other officers arrived at 1915 Chestnut Avenue, Antioch, CA and approached the front door to the residence. I. knocked on the front door of the residence and stated in a loud.. voice, "Police Officers with a search warrant, demand entry. " I waited approximately ten seconds and then repeated the announcement. I could not hear anything from within the residence. At this time I instructed Sgt. Moczulski to force entry. Upon entry, the residence was found vacant. A search of the residence was then conducted for the items listed in the warrant. The above listed items were found in the locations listed. 3 . Prior to leaving the residence, a copy of the search warrant,, return to search warrant and receipt for property seized were left on the kitchen table. The front door was secured and the residence was locked as we left. 4. Item #1 was placed into ECCNET evidence and then submitted to the Contra Costa County Crime Lab by Agent Penquite. Items #2 and 3 were placed'""into ECCNET Evidence by myself. Item #4 was placed into ECCNET Evidence and then submitted to the Contra Costa County Property Room by Agent Penquite. CO 1 COSTA COUNTY NARCOTIC ENFORCEME :AM PROPERTY REPORT ' z l�l�]Nfy QFC]( R(PrYrt) 't725 "017M O 14:05 'ffl i 7%c) H&S 1. E( Wlial) BUS.PNONE � , L�'� V704/5 'fgn CHESTNUT AANUE OCH 2 3 4. REM DESCRIPTION ARTICLE BRAND MODEL SERIAL+ STORAGE LOCATION 1 PLASTIC BAGGIE CONIAINING AGW 3 0.0 GRAMS 01. MARIJUANA ( ]CCCNET I X]CCC PROP/LAB BIN s _ I J SAFE I J 2 CERTIFICATE OF INSURANCE, INDICA FOR GOR BROOKS [XIGCCNET I ICCG PROP/LAB BIN r }x_ I ]SAFE [ J 3 MISCELLANEOUS INDICIA FOR GORDO BROO [X]CCCNET ( .I CCC PROP/LAB BIN r X�X_ I ]SAFE I ] 4 SMITH & WESSON .38 CALIBER MODEL 10, SERIAj #79538 [ ]CCCNET (X]CCG PROP/LAB . BIN* I J SAFE ( ] [ ]CCCNET [ ]CCC PROP/.LAB ! BIN# I J SAFE I J 1 [ J CCCNET [ ]CCC PROP/LAB BIN♦ I ]SAFE I J ` [ ]CCCNET [ ]CCC PROP/LAB BIN r _ I J SAFE I J [ ]CCCNET [ ]CCC PROP/LAB BIN Y ,_ I J SAFE [ ] [ ]CCCNET [ ]CCC PROP/LAB BIN I I ]SAFE [ ] [ ]CCCNET [ ]CCC PROP/LAB BIN. _ [ 1SAFE [ 1 [ J CCCNET [ ]CCC PROP/IAB BIN t _ I ]SAFE I J I J CCCNET [ ]CCC PROP/LAB .BIN+ [ J SAFE, I ] [ ]CCCNET [ ]CCC PROP/LAB BIN# _ I J SAFE I J I J CCCNET [. ]CCC PROP/LAB BIN r I J SAFE I l . [ ]CCCNET ( ]CCC PROP/LAB BIN. [ 1S I ] I J CCCNET [ ]CCC PROP/LAB BIN. _ I J,SAFE I J I ]CCCNET [ ]CCC PROP/LAB BIN. [ JSAFE [ ] ( ]CCCNET ( ]CCC PROP/LAB BIN Y I ]SAFE [ ] [ )CCCNET ( ]CCC PROP/LAB BIN r I ]SAFE [ ] - I .J CCCNET I ]CCC PROP/LAB BIN♦ I ]SAFE I ] I J CCCNET [ ]CCC PROP/LAB BIN• _ I ]SAFE [ ] I J CCCNET [ ]CCC PROP/LAB BIN• I J SAFE ( ] OOM -y-- COUNTY O `%ONTRA COSTA, S� �jFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, to any sheriff, pp)c y �r peace officer in the Count of Contra Costa ; PROOF by affidavit havin8 bee" ►1 `fore me by Agent Orman ;u -.;• that there is probable cause to believe the property described he ek _ be found at the locations set forth and that such property is seizable under 1524 P.C. in that it: , was stolen or embezzled; _ = MIR X was used as the means of committing a felony; _is possessed by a person with the intent to use itash' Bans of committing a public offense; OR is jVpossessed by another to whom he may have delivered it for he purpose of concealing it or preventing its discovery; ._.` is evidence which tends to show a felony has beeri cor7fT ted or a particular person has committed a felony; : " is evidence which tends to show sexual exploitation of a child in violation of Penal Code 311.3, has occur- red or is occurring YOU ARE THEREFORE COMMANDED TO SEARCH: 1915 Chestnut=St., Antioch, CA, County of Contra Costa THE PREMISES located at and described as: A single's _ constructed of green painted stucco siding, dark p g, green trim, and a wht �ooarposition roof. It has a single car detached garage constructed of green,"` :siding and having a white metal garage door. The front door is white in: t�i_a-metal screen door over it. The number "1915" appears on the -front,' the .house south of the PPS front door. 1915 Chestnut,St. :,is ,the houselth of�E. 19th St. on the - . ....+ . east side of Chestnut st.,' that the front of .the'S&9.e�'h; west. including basements, attics, storage spaces, ppurtenant buildings, the surrounding grounds, and all, containers therein and thereon which could contain any of the.items sought. THE CONTAINER located at and described as: THE VEHICLE(S) described as: Any and all vehicles owned by or under the control of Gordon Stewart Brooks, 1 r. including the passenger compartment, storage areas such as trunk and glove box, and any containers within the vehicle(s) which could contain any of the items sought. THE PERSON(S) of Brooks, Gordon Stewart DOB; 2-18-70, WMA, 6'0", 160, brown hair, blue eyes CDL #A1540819 _ . SEARCH WARRANT-1 OF `- ���p1NlhlG. _ property or things listed to Exhibit #----- attached U e P the following property or things: 1, Methamphetamine in any form. 2. Paraphernalia associated with the preparation of methamphetamine for sale including but not limited to scales, measuring spoons, sifters, paper bindles, cutting agents, plastic bags, and smoking equipment. 3. Paraphernalia associated with the use of methamphetamine to include but not limited to straws, glass tubes, razor blades, glass smoking pipes, syringes, needles,, etc. 4. Documents associated with the sale of methamphetamine including but not limited to notebooks, address books, IOU's, loose papers containing names, quantities of substance sold and amounts of money paid and owed. 5. Personal property which tends to show possession or control of contraband, including but Piot limited to rent receipts, utility bills, keys and personal correspondence. 6. The officers serving this Search Warrant are hereby authorized to answer any telephone calls being placed to the premises being searched and to converse with the caller(s) in an undercover capacity without revealing the identity of the officers. This may be done only as long as, the officers are searching for other items listed on this Search Warrant. 7. Those items which tend to show a criminal conspiracy to sell/distribute methamphetamine including but not limited to photographs, telephone records, notes, letters and latent fingerprints. and to seize it or any part thereof and retain such property in your custody subject to order of this court, pursuant to Penal Code Section 1536. GOOD CAUSE HAVING BEEN SHOWN by Affidavit, you may do the following which, bears my initials: You may serve this warrant at any time of the day or night, under Penal Code Section 1533. GIVEN undeF my hand and dated this---=day of Lam_, 19�7 at /� . P.m. L zi/' Magistrate Judge of the gi+peri�or/Municipal Court,? Judicial District. SEARCH WARRANT-2 REV.4189 ' . ...COUNTY CONTRA COSTA, STATEOF�.,ALIFORNIA .j No q0, 4-3 RETURN TO SEARCH WARRANT A The property or things listed below (or on the attachmenthereto) was taken from pursuant to the Search Warrant dated the �QQMH v day of li r-C 14 , 1 , issued by Judge n CI t C_1 CL-1 o i� C�c� c� o tJ r3 roo KS A 4 In addition to the above-listed Items;the"seizure of which was commanded by the Search Warrant, other Items were seized which were not listed on the Search Warrant. A listing of them is attached hereto. 1, Znt y whom this Warrant was served, do swear that the above and/or the attached inventory/inventortrue and detailed account of all the property taken during the service of this Search Warrant. All the property seized which was listed on the Search Warrant will b custody subject to order of this or any other court in which the offense in respect to which th en i triable.ii�� �Sin re nce of Issuing Magistrate GIVEN under my hand and dated this ,.. Z day of '�/J r ` , 19 y / Magistrate Judge of the U-11 l� . "` Court D_t !/-� Judicial District. �- .. - Leave 1 copy at place searched -Within 10 days of ISSUANCE of Warrant, swear to original before Issuing Magistrate who will file with Clerk;' - 1 copy for police file Page of RETURN TO SEARCH WARRANT List seized items named on search warrant • COUNTY CONTRA COSTA STATE OIC ALIFC} �iA... R N RECEIPT FOR PROPERTY SEIZEDNo. qo , `-7W he.foliowing items, which constitute Evidence of Crime, Contraband, or Stolen Property, were discovered in lain view while searching for items listed on the Search Warrant which was being sery�d at k145 !,Ek:SLn '4i"' a ih4T4Lkalifornia, on rr Q..r ..� 0-A 0'.. i ! FILED it Delta Municipal Cott By pep Cik i - Leave 1 copy at place searched ^ officers game ( pate - ORIGINAL WITH SEARCH WARRANT AND RETURN TO JUDGE + + =11 copy for police file Page,, RECEIPT '.FOR PROPERTY SEIZEd _J. List seized items not named on search warrant I i.. N V 0� V cq ' 0 4 i 'arc ,I u y � ' a Q . Q �i �E y f n '! (7j CRIMINALISTICS LABORATORY DIVISION Shertft-Coroner's Department Contra Costa County Page of REPORT OF CONTROLLED SUBSTANCES EXAMINATION Laboratory Number Offense(s) Date(s)Examined 90-02247-A CONTROLLED SUBSTANCE . , 3 /22, v Request' A enc &Case Number Date of Request Examination Requested By EAS' FARC. ENFORCEMENT TEAM 4 TF90-0086E . 03/20/90 FERRARI Complainant(s) Suspect(s) BROOKS, GORDON S PEOPLE DESCRIPTION OF EVIDENCE Evidence brought to the laboratory by: AGENT PENQU`ITE Envelope of 1 One tape sealed controlled substances envelope containing: Item Number Number/Packaging Item Description Source powder/crystals plastic bag(s) ❑chunky material ❑suspect paper bindle(s) M-plant material ,� ` ❑ L9"other '. C�c, , ❑powder/crystals plastic bag(s) ❑chunky material ❑suspect paper bindle(s) ❑plant material ❑ ❑other ❑powder/crystals plastic bag(s) ❑chunky material ❑suspect paper bindle(s) ❑plant material ❑ ❑other EXAMINATION RESULTS Item Number Weight(s) Total Number Examined Results of Examination Schedule (grams) Weight(g) Comments ❑cocaine ❑base ❑salt ❑not controlled ❑estimated ❑No controlled substance detected thamphetamine ❑Not examined Marijuana II 111 IV V ❑cocaine ❑base ❑salt ❑not controlled ❑estimated ❑No controlled substance detected ❑methamphetamine ❑Not examined ❑marijuana I II 111 IV V ❑cocaine ❑base' ❑salt ❑not controlled ❑estimated ❑No controlled substance detected ❑methamphetamine ❑Not examined ❑marijuana I II 111 IV V iemarks: Signature&Date Distribution: Agency deported &Title ❑District Attorney ,. Boyd E.Lasater,'Forensic Toxicologist ❑other ( File pproved By Supervisi giminalist For Additional Information Call: 'L 646-2962 DECLARATION OF PERSONAL SERVICE I declare that I am a citizen of the United Stated, am over 18 years of age and not a party to the within entitled action. I am employed at and my business address is CIVIC PARK PLAZA, 1111 Civic Drive, Suite 205, Walnut Creek, California, 94596 . On this date I served the below stated document(s ) AMENDED NOTICE OF CLAIM AGAINST THE COUTNY OF CONTRA COSTA by personally delivering a true copy thereof to the,, person(s) or office(s) named below: Contra Costa County Board of Supervisors 651 Pine Street . First Floor Martinez, CA 94553 I declare that the above is true and correct under the penalties of perjury pursuant to the laws of the State of California. Executed this date at Walnut Creek, California.' Dated: September 20, 1990 Andrew Q iro o proosery I n 41 CLAIM 1. BOARD OF SUPERVISORS OF 'CONTRA COSTA COUNTY, CALIFORNIA' ' Claim Against the County, or District governed by) BOARD ACTION the Board of Supervisors, Routing Endorsements, ) NOTICE TO CLAIMANT OCTOBER '9 , 1990 and Board Action. All Section references are to ) The copy of this document mailed to' you is your notice of California Government Codes. ) the action taken on your claim by the Board of Supervisors 16 (Paragraph IV below), given pursuant to Government Code Amount: $ 50 , 000 . 00 Section 913 and 915.4. Please note all "Warnings". CLAIMANT: BROOKS , Gordon Stewart ATTOR''Y: Donald L . Bull , Jr. Attorney at Law Date received ADDRESS: 1111 Civic Drive , Ste . 205 BY DELIVERY TO CLERK ON September 12 ,_1990 (hand Walnut Creek, CA 94596 delivered) BY MAIL POSTMARKED: I. FROM: Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. B DATED: September 19 , 1990 EVIL Deputy OR, Clerk 11. FROM: County Counsel TO: Clerk of the Board of Supervisors (v' ) This claim complies substantially with Sections 910 and 910.2. !" ) This claim FAILS to comply substantially with Sections 910 and 910.2, and we are so notifying claimant. The Board cannot act for 15 days (Section 910.8). ,I Claim is not timely filed. The Clerk should return claim on ground that it was filed late and send warning of claimant's right to apply for leave to present a late claim (Sect; on 911.3). ( ) Other: ei j Dated: BY: Deputy County Counsel III. FROM: Clerk of the Board TO: County Counsel (1) County Administrator (2) ( ) Claim was returned as untimely with notice to claimant (Section 911.3). IV. BOARD ORDER: By unanimous vote of the Supervisors present ( This Claim is rejected in full. ( ) Other: I certify that this is a true and correct copy of the Board's Order entered in its minutes for this date. Dated: 0 C T 9 1990 PHIL BATCHELOR, Clerk, By. Deputy Clerk WARNING (Gov, code 5 13) Subject to certain exceptions, you have only six (6) months from the date this notice was personally served or deposited in the mail to file a court action on this claim. See Government Code Section 945.6. You may seek the advice .of an attorney of your choice in connection with this matter. If you want to consult an attorney, you should do so immediately. N, AFFIDAVIT OF MAILING I declare under penalty of perjury that I am now, d at all times herein mentioned, have been a citizen of the United States,, over age 18; and that today I deposite 'n the United States Postal Service in Martinez, California, Dos ge fully prepaid a certified copy of thi oard Order and Notice to Claimant, addressed to the claimant as sh n above. Gated: OCT 9 1 BY: PHIL BATCHELOR Deputy Clerk CC: County Counsel County Administrator j i FORM 4.2 Notice of Claim Against the County of Contra Costa (Govermnent code ss 910, 910.2) 1RECEIVED l��- /7eGcv .REIURN TO. Contra .Costa County ' SEP t 2 1990 Board of Supervisors 651 Pine Street CLERK BOARD OF SUPERV First Floor � CONTRA COSTA CO. Martinez , CA. 94553 C7AII+7��NT'S NAME: Gordon Stewart Brooks .CLAIMANT IS ADCRFSS. .1915 Chestnut Avenue N airib er Street . Antioch, CA City tate �p o e NAME AND ADDRESS OF PERSON TO WEiOM NC7I''ICES REaGARDING THIS CLAIM i�SHOULD BE SENT (if different than above) : Donald L Bull 3r Attcarr,av ai � �w 1111 Civic Drive Suite ?nc; ''I' Walm f C -e rr 9459 DATE OF THE ACCIDENT OR OC UFdU NCE: Mav 13 19 9 0 i PLACE OF THE ACCIDENT OR OCCURRENCE: 1915 Chestnut A e nn e VIA r U i ru 13_, -C-b—, GENERAL DESCRIPTION OF THE ACCIDENT OR OCCURRENCE (attach additional pages if more space is needed: SEE ATTACHME y i NAMES, IF IQURN, OF ANY PUBLIC EMPLOYEES CAUSING THE INJURY OR t OSS: SEE ATTACHED NAMES AND ADURIW OF W104ESSES: j NAME AD KESS TELEPHONE 1. Investigation continuing. 2. NAME AND ADDRESS OF DOCTORS, HOSPITALS MiERE TREATED: DUNE NAME ADDRESS 1, 2. GD4ERAL DESCRIPTION OF THE LOSS, nUMY OR MX GxE SUFFERED: . Petitioner has heen subia i g" t TOTAL AMOUNT CLAIMED: $50 , 000 .00 THE BASIS OF CCt4PurING THE TOTAL AMOUNT CLAIMED IS AS FOLIDWS: Damages incurred to date: Medical Expenses: $ Lass of Earnings: $ Special Damages for: Violation of Constitutional Rights $50 , 000.00 i II (Attach copies if available) I/We, the undersigned, declare under penalty of perjury that I/We have read the foregoing claim for damages and know the contents thereof: that the same is true of my/our olwi knowledge and belief, save and except as to those matters wherein stated on information and belief, and as them, I/we 'eve it be true. DATED: 9-11-90 SI OF CTADW I(S) . 11 Received in City Clerk's Office this day of , SIGNATURE i FOR CLA3M RELATED TO INJURY TO PERSON OR PERSONAL PROPERTY, THIS FOW MUST BE FILED WITH THE CITY OF ANTIOCH WI= SIX MDNIHS FRIM THE ACC WAL OF THE CAUSE OF ACTION. A CTAIM RELATED TO ANY OTHER CAUSE OF ACTION SHALL BE PRESENTED NO I LATER THAN ONE YEAR AF'IER AOC WAL OF THE CAUSE OF ACTION. i ATTACHMENT ONE On 13 March, 1990, a search was conducted at the above address .pursuant to a Warrant. Said warrant was issued in the investigation of Gordon Stewart Brooks, age 20, California Drivers License number A1540819 . The claimant is the father of the person named in the Warrant, however, the person named in the warranti` has not resided at the residence location since approximatelySeptember 1989 . During the Search of the premises, the Officers '1 were advised by household members that the individual in question'ldid not live at the premises . During said search, the above mentioned members of the household were threatened by the searching Officers and prevented from leaving the premises without probable cause for their detention'. i i. -� CLAIM' BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA .j Claim Against the County, or District governed by) II BOARD ACTION the Board of Supervisors, Routing Endorsements, ) NOTICE TO CLAIMANT\\ If OCTOBER 9 , 1990 and Board Action. All Section references are to ) The copy of this document mailed to' you is your notice of California Government Codes. ) the action taken on your claim by the Board of Supervisors (Paragraph IV below), given pursuant to Government Code Amount: 7 00 . 96 Section 913 and 915.4. Please note all "Warnings". CLAIMANT: FERERO, Paul D. \ 1025 Virginia ATTORNEY: Manteca, CA 95336 I Date received ADDRESS: BY DELIVERY TO CLERK ON Sel2te b r 12 , 1 QQn (hand II delivered) BY MAIL POSTMARKED: it If 1. FROM: Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. ` DATED: September 19 , 1990 JVIL �ep�tyLOR. Clerk )I I1. FROM: County Counsel TO: Clerk of the Board of Supervisors t ( ) This claim complies substantially with Sections 910 and 910.2. Q This claim FAILS to comply substantially with Sections 910 and 910.2, and weare so notifying claimant. The Board cannot act for 15 days (Section 910.8). jC if ( ) Claim is not timely filed. The Clerk should return claim on ground that it ,,was filed late and send warning of claimant's right to apply for leave to present a late claim (Section 911.3). i ' I { ) Other: i .I II Dated: 9 20 90 BY: - / X, Deputy County Counsel ;i I� II1. FROM: Clerk of the Board TO: County Counsel (1) County Administrator (2) ( ) Claim was returned as untimely with notice to claimant (Section 911.3). IV. BOARD ORDER: By unanimous vote of the Supervisors present j ( 1i) This Claim is rejected in full. ( ) Other: y �j I certify that this is 'a true and correct copy of the Board's Order entere1d in its minutes for this date. II r Dated: OCT 9 1990 PHIL BATCHELOR, Clerk, By , Deputy Clerk II WARNING (Gov. code se ' 13) Subject to certain exceptions, you have only six (6) months from the date this notice 11was personally served or deposited in the mail to file a court action on this claim. See Government Code Section 945.6. I You may seek the advice of an attorney of your choice in connection with this matter. If you want to consult an attorney, you should do so immediately. Ij I jl AFFIDAVIT OF MAILING I declare under penalty of perjury that I am now, and at all times herein mentioned, have been a citizen of the United States, over age 18; and that today I deposited in the United States Postal Service in Martinez, California, postage fully prepaid a certified copy of this Board Order and Notice to Claimant, addressed to the claimant as shown above. ii Dated: ®C T 9 1990 BY: PHIL BATCHELOR b ,I Deputy Clerk II CC: County Counsel County Administrator j 'i II I� 1 , ii NOTICE OF INSUFFICIENCY AND/OR NON-ACCEPTANCE OF CLAIM TO: Pau Ferero 1025 Vi 'nia Manteca, C 5336 Res Claim of PAUL D. FERERO ii Please Take Notice As Follows: J The claim you presented against the County of Contra) Costa or District governed by the Board of Supervisors fails to comply substantially with the requirements of California Government Code section 910 and 910. 2, or is otherwise insufficient for the reasons ,ichecked below: 1 . The claim fails to state the name and postioffice address of the claimant. 2 . The claim fails to state the post office address to which the person presenting the claim desires no 11 to be sent. x 3. The claim fails to state the date, place or other circumstances of the occurrence or transachhtion which gave rise to the claim asserted. 4 . The claim fails to state the name(s) of th1e public employee(s) causing the injury, damage, orloss, if known. 5 . The claim fails to state whether the amount claimed exceeds ten thousand dollars ($10,000) . If the cl{laim totals less than ten thousand dollars ($10,000) , the c,Claim fails to state the amount claimed as of the date of presentation, the estimated amount of any prospective injury, damage or loss so far as known, or the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000) , the claim fails to state whether jurisdiction over the claim would rest in municipal or {superior court. 6 . The claim is not signed by the claimant or by some person on his behalf . 7 . Other: J! VICTOR J. WEST {` County Counsel J By: Deputy CounselqO CERTIFICATE OF SERVICE BY MAIL C.C.P. §§ 1012, 1013a, 2015 .5; Evid. C. 9§ 641, 664 I My business address is the County Counsel's Office of Contra Costa County, Co. Admin. Bldg. , P.O. Box 69 , Martinez, Cal!lifornia, 94553, and I am a citizen of the United States, over 18 years of age, employed in Contra Costa County, and not a party tojithis action. I served a true copy of this Notice of Insufficiency and/or Non Acceptance of Claim by placing it in an envelope(s ) Iladdressed as shown above (which is/are place(s) having delivery service{ by U.S. Mail) , which envelope(s) was then sealed and postage fullyjprepaid thereon, and thereafter was, on this day deposited in the U.S. Mail at Martinez/Concord,Contra Costa County, California. I certify under penalty of perjury that the foregoing is true and correct. !I Dated: at Martinez, California.;] a if cc: Clerk of the Board of Supervisors (original) /,,!, Risk Management (NOTICE OF INSUFFICIENCY OF CLAIM: GOV.C.§§ 910, 9101. 2, 920.41 910. 8) I� LOST PROPERTY CLAIM Return original application to: Clerk of .the Board PO Box 911 Martinez, CA 94553 A. Claims relating to causes of action for death or for injury, to person or to personal property or growing crops must be presented notj, later than the 100th day after the accrual of the cause of action. Claims relating to any other cause of- action must be presented not later than one year after the accrual of the cause of action. (Sec. 911,2, Govt. Code) jl B. Claims must be filed with the Clerk of the Board of Supervisors at it's office in Room 106, County Administration Building, 651 Pine Street, . Martinez, .CA_94553. C. If claim is against a district governed by the Board of Supervisors, rather than the county, the name of- the district should be ,filled in. D. If the claim is against more than one public entity, separate claims must be-=filed against each public entity. E. Fraud 7, Section 72'of the Penal Code provides: 1 "Every person who, with intent to defraud, presents for allowance or for payment to any state board or officer, or to any county, town, city district, ward, or village board or officer, authorized to allow or pay the same if genuine, any false of fradulent claim, bill, account, voucher, or writing, is guilty of a felony. " �J•n•iC�C iC J.J.J.J J-J.J.J•J J J.J J.J J.J.J•J- J J..4 J.J iC •iC iC iC iC �J.J.J..4.4.L J.i 4iC• �n••k J � �iCn� � • � � � RE: Claim By Reserved for Clerk's:.filing stamps RECEIVED Against the COUNTY OF CONTRA COSTA SEP- 1 219 or ���u.� ��. . moo.%�o/z��DISTRICT- `- CLERK BOARD OF SUPE S CONTRA COSTA CO. (Fill in name) The undersigned claimant hereby makes claim against the County; of Contra. Costa or the above-named District in the sum of $ o o,g and in support of this claim re- presents e presents as follows: 1, When did the damage or. injury occur? (Give exact. date andUhour) y and county.) occur: (Include cit c 2. Where did the damage or injury .) 3. How did the dama;e or injury occur? (Give full details -, ,use extra sheets if required.) 0 4//V l� A/ v 41(e, y 11 4. What particular-act or omission on the part of county 6r district officers, servants, or employees caused the. injury or damage? over - i. i �... What. are the names or county or.district .officers, servants,,, ®a' cIl,oyees' causing the damage or injury?, !� 6. What damage .or injuries 'do you claim resulted? (Give full enn,t-,t (off injuries or damages claimed. Attach two estimates for auto damage )j Y•(as 7. How was the amount claimed` 'above computed? (Include,.the { n c� 21 :amaunt of-any prospective injury or damage:) A/ 8. Names and addresses of witnesses,. doctors, and hospitals:) i• r i rev /I 9. List the expenditures you made on account of this .accident o-z ii:-iifaM7:. LATE ITEM � ifC9"WiM.' - rj Te Govt. Code Se'c.o 1 10)._'P. 1p,rroow-i(d.es "The claim sig-ia& Yo.Rkj cfte! cc°_1aimant or by some pe'nP,m. ain hlis, 6E1,21f. " SEND NOTICES TO (Attorney) !i i`_ `! Py r.L,. 4 Name and Address of Attorney � /0/;627 _ _ la'imnt13-, S`xgAurtair°� }' Telephone Numb b r: Telephone Number: A i 1 i I i �.; CLAIM BOARD OF SUPERVISORS OF CONTRA COSTA (:OUNTY, CALIFORNIA / Claim Against the County, or District governed by) BOARD ACTION the Board of Supervisors, Routing Endorsements, ) NOTICE TO CLAIMANT OCTOBER9 1d9f9 0 and Board Action. All Section references are to ) The copy of this document mailed to you is your notice California Government Codes. ) the action taken on your claim by the Board of Supervisors (Paragraph IV below), given�pu�rlsuuaan�t to Government,Code Amount: Undetermined Section 913 and 915.4. Please noted all "Warnings". CLAIMANT: PLEASANT HILL DEVELOPMENT, et al SEP 11 �9SQ COUNTY COUNSEL ATTORNEY: James M. Berg, Esq . MARTINEZ, CALIF, Berg, Ziegler, Lichtman Date received ADDRESS: and Anderson BY DELIVERY TO CLERK ON September 10 , 1990 Four Embarcadero Center 14th Floor BY MAIL POSTMARKED: September 7 , 1990 San Francisco , CA 94111 I. FROM: Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. DATED: September 11 , 1990 IVIL DepuLyLOR, Clerk II. FROM: County Counsel TO: Clerk of the Board of Sup isors This claim complies substantially with Sections 910 and 910.2. ( ) This claim FAILS to comply substantially with Sections 910 and 910.2, and we 'are so notifying claimant. The Board.cannot act for 15 days (Section 910.8). ( ) Claim is not timely filed. The Clerk should return claim on ground that it was filed late and send warning of claimant's right to apply for leave to present a late claim (Section 911.3). ( ) Other: r Dated: 9 1 BY: � /J Deputy County Counsel III. FROM: Clerk of the Board TO: County Counsel (1) County Administrator (2) ( ) Claim was returned as untimely with notice to claimant (Section 911.3). IV. BOARD ORDER: By unanimous vote of the Supervisors present ( his Claim is rejected in full. ( ) Other: I certify that this is a true and correct copy of the Board's Order entered•in its minutes for this date. Dated: OCT, 9 1990 PHIL BATCHELOR, Clerk,//By Deputy Clerk WARNING (Gov. code ectio 913) Subject to certain exceptions, you have only six (6) months from the date this notice was personally served or deposited in the mail to file a court action on this claim. See Government Code Section 945.6. You may seek the advice of an attorney of your choice in connection with this matter. If you want to consult an attorney, you should do so immediately. AFFIDAVIT OF MAILING 1 declare under penalty of perjury that I am now, and at all times herein mentioned, have been a citizen of the United States, over age 18; and that today I deposited in the United States Postal Service in Martinez. California, postage fully prepaid a certified copy of this Board Order and Notice to Claimant, addressed to the claimant as shown above.. Dated: 0 CIT9 1994 BY: PHIL BATCHELOR by Deputy Clerk CC: County Counsel County Administrator e �r BERG, ZIEGLER, LICHTMAN & ANDERSON ATTORNEYS AT LAW ROBERT L.ANDERSON FOUR EMBARCADERO CENTER,SUITE 1400 JAMES M. BERG SAN FRANCISCO,CALIFORNIA 94111 DAVID B. FRANKLIN TELEPHONE ROBERT M. LICHTMAN (415) 397-6000 DAVID L. MONETTA WILLIAM J.ZIEGLER,JR. TELECOPIER LEANNE WILHARDT COGHLIN (415) 397-9449 F.GALE CONNOR TRANSMITTAL MEMORANDUM DANIEL L. FEDER NAM E.GAN NON JILL MEIER GARVEY RECEIVED IVAN M.GOLD JAMES M.SHORE DATE: September 7 , 19.90 SEP 10 1990 CLERK BOARD OF SUPERVISORS TO: Clerk of the Board of Supervisors CONTRA COSTA CO. Contra Costa County 651 Pine Street, Room 106 Martinez, CA 94553 Enclosed are the following: Original and two copies of CLAIM FOR CONTRACTUAL AND EQUITABLE INDEMNITY X Self-addressed, stamped envelope The enclosures are delivered for the purpose of: x Filing X Return of endorsed/filed copies ✓// BERG, ZIEGLER, LICHTMAN & ANDERSON By Shelley Gi ford Secretary Vo F. Ule Connor Enclosures 1 BERG, ZIEGLER, LICHTMAN & ANDERSON ATTORNEYS AT LAW 2 FOUR EMBARCADERO CENTE R,I4 YH FLOOR SAN FRANCISCO.CALIFORNIA 94111 RECEIVED (415) 397-6000 3 4 10 1990 5 Attorneys for Claimants CS CONTRACOSTA CO. 6 7 8 BOARD OF SUPERVISORS - COUNTY OF CONTRA COSTA 9 10 IN RE: ) 11 Claim By ) 12 PLEASANT HILL DEVELOPMENT, ) a California limited partnership, ) 13 URBAN HOLDINGS INC. , its general ) CLAIM FOR CONTRACTUAL partner, PARKFORD MANAGEMENT CO. , ) AND EQUITABLE INDEMNITY 14 INC. , RICHARD R. FORDIANI, THE ) FORDIANI COMPANY and FORDIANI, ) 15 SMYERS & TOBACCO, INC. ) 16 v. ) 17 CONTRA COSTA COUNTY REDEVELOPMENT ) AGENCY ) 18 ) 19 In conformity with Government Code §§910 and 910. 2 , Pleasant 20 Hill Development, Urban Holdings (hereinafter the "Contractual 21 Claimants") and Pleasant Hill Development, Urban Holdings Inc. , 22 Parkford Management Co. , Inc. , Richard R. Fordiani, The Fordiani 23 Company and Fordiani, Smyers & Tobacco, Inc. (hereinafter the 24 "Claimants") make the following claims for contractual and 25 equitable indemnity against the Contra Costa County Redevelopment 26 Agency (hereinafter the "Agency") , based upon the following. 27 28 1 I A. The name and post office address of claimants. 2 Pleasant Hill Development 1660 Olympic Boulevard, Suite 211 3 Walnut Creek, CA 94596 4 Urban Holdings, Inc. 1660 Olympic Boulevard, Suite 211 5 Walnut Creek, CA 94596 6 Richard R. Fordiani 1660 Olympic Boulevard, Suite 211 7 Walnut Creek, CA 94956 8 Parkford Management Co. , Inc. 1660 Olympic Boulevard, Suite 211 9 Walnut Creek, CA 94596 10 The Fordiani Company 1660 Olympic Boulevard, Suite 211 11 Walnut Creek, CA 94596 12 Fordiani, Smyers & Tobacco, Inc. 1660 Olympic Boulevard, Suite 211 13 Walnut Creek, CA 94596 14 B. The post office address to which the Claimants presenting the claim desire notice to be sent. 15 James M. Berg, Esq. 16 Berg, Ziegler, Lichtman & Anderson 4 Embarcadero Center, Suite 1400 17 San Francisco, CA 94111 18 C. The date, place and other circumstances of the occurrence or transaction which gave rise to the claims asserted. 19 20 1. Contractual Indemnity. 21 Through a written Disposition and Development Agreement 22 ("DDA") dated May 23 , 1989 , by and between the Contra Costa County 23 Redevelopment Agency, public body, corporate and politic, and 24 Pleasant Hill Development, a California limited partnership, whose 25 general partner is Urban Holdings, Inc. , the Agency and Pleasant 26 Hill Development, and its partners and other related entities, 27 (designated in the DDA as the "Developer") contracted to 28 participate in the redevelopment of certain properties in 2 1 accordance with the Pleasant Hill Bart Station Area Redevelopment 2 Plan. Pursuant to the terms of said DDA, the Agency agreed 3 undertake the acquisition of certain parcels of real property in 4 the Plan area. It further agreed to "defend the Developer against 5 any claims or litigation of any nature whatsoever brought by third 6 parties and directly arising from Agency's performance of its 7 obligations under this Agreement. . . " 8 Under the Pleasant Hill Development Limited Partnership 9 Agreement, Pleasant Hill Development is obligated to indemnify its 10 general partner, Urban Holdings, and its officers, directors, 11 employees, agents, subsidiaries and assigns from any liability, 12 loss or damages for acts performed by them in connection with the 13 partnership business. For purposes of carrying out the obligations 14 of Pleasant Hill Development in connection with the project in the 15 Plan area, under the DDA and otherwise, Urban Holdings retained the 16 services of Richard R. Fordiani, The Fordiani Company, Parkford 17 Management Co. , Inc. , and Fordiani, Smyers & Tobacco, Inc. 18 Various claims and disputes have arisen as a result of 19 the manner in which the County of Contra Costa established and 20 regulated policy with respect to the Plan area and the manner in 21 which the Agency performed its obligations under the DDA, 22 including, on or about August 15, 1990, a first amended complaint, 23 styled Wilna L. Branum v. Parkford Management Co. , Inc. , et al. , 24 Contra Costa County Superior Court No. C90-02906. It was served 25 upon defendants Parkford Management Co. , Inc. , Richard R. Fordiani, 26 The Fordiani Company, and Fordiani, Smeyers & Tobacco, Inc. on or 27 about August 16, 1990. Said complaint alleges damages for breach 28 of contract, fraud, and other causes of action arising out of the 3 I acquisition of plaintiff's property by the Agency for the Park 2 Regency Redevelopment Project. A true and correct copy of said 3 complaint is attached hereto as Exhibit "A" and is incorporated 4 herein by this reference as though set forth in full, but only for 5 purposes of stating this claim. Claimants do not adopt as true and 6 correct any of the allegations in the complaint unless Claimants 7 have expressly admitted the same. 8 The Branum complaint alleges that her injuries arose as 9 a result of the acquisition of her property by the Agency, in a 10 manner and for an amount other than as prescribed by an option 11 agreement between Wilna L. Brown and Parkford Management Co. , Inc. , 12 which had, prior to the Agency's acquisition of the property, been 13 assigned by Parkford to the Agency. The actions of the Agency, 14 having given rise to the Branum complaint, obligate the Agency 15 pursuant to the express terms of the DDA, to defend and indemnify 16 the Contractual Claimants, and each of them, against all claims 17 asserted in the Branum complaint. Furthermore, to the extent that 18 Contractual Claimants are obligated to indemnify or defend their 19 agents or employees from claims asserted by Branum in her 20 complaint, Contractual Claimants are entitled 'to indemnification 21 for the same from the Agency. 22 2 . Equitable Indemnity. 23 If Wilna Branum sustains damages as alleged in her 24 complaint, all such damages were caused 100% by the acts and/or 25 omissions of the Agency. Claimants are in no way at fault for the 26 acts or omissions alleged in the Branum complaint, and any 27 liability arising therefrom will be solely of a vicarious and 28 secondary nature predicated upon the actions and inactions of the 4 I Agency, and as such, Claimants, and each of them, are entitled to 2 a full defense of the Branum action and full indemnification for 3 any sum which they may be compelled to pay as a result of any 4 damages, judgment or other award recovered by Branum. 5 D. A general description of the indebtedness, _obligation, injury, damage or loss incurred so far as it may be known at the time 6 of presentation of the claim. 7 The Branum complaint alleges general damages in an amount in 8 excess of $204, 000 and punitive damages in an undetermined amount, 9 together with attorneys, appraisal and engineering fees, and other 10 related costs of suit. To date, Claimants .have incurred costs and 11 fees in preparing a defense to the Branum action, and shall 12 continue to incur costs and fees for so long as the Agency fails 13 to provide the defense and indemnification for which it is 14 contractually and equitably obligated. 15 For a more detailed description of the source and nature of 16 the indebtedness and obligation of the Agency to Claimants, see the 17 description contained under sub-heading C above. 18 E. The name or names of the public employee or employees causing 19 the iniury, damage, or loss, if known. 20 Claimants are presently informed and believe and based 21 thereupon allege that said public employee may be James Kennedy, 22 Deputy Director-Redevelopment, as well as other presently unknown 23 persons. 24 F. The amount claimed. 25 The amount claimed in the Branum lawsuit exceeds $10, 000, and 26 that action was brought in the Superior Court. Likewise, the 27 amount claimed against the Agency by Claimants herein exceeds 28 $10, 000 (cost of defense and indemnification from judgment or other 5 I liability) and jurisdiction over this claim properly rests in the 2 Superior Court. 3 Dated: September 7 1990 4 BERG, ZIEGLER, LICHTMAN & ANDERSON 5 By: 6 J es M. Berg Attorneys for Claimant 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 008SG097 6 1 JAMES E. COX DAVID R. FISCHER 2 COX, GARRETT & LALLY A Professional Corporation 3 Court & Mellus Streets Post Office Box 111 AUG 15 1190 4 Martinez California 94553 %tii:lr. col:` I� rl ► ''.1= Telephone :, ( 415 ) 228-7300 cn ,li.;�. r:c,sr„ cr.�u�,r': 5 —- — -------- -- L. Att 6orneys for Plaintiff WILNA L. BRANUA 7 1. 8 SUPERIOR COURT OF CALIFORNIA -- COUNTY OF CONTRA COSTA 10 W I LNA L. BRANUA , ) No. C90 - 02906 11 Plaintiff , ) 12 v . ) 13 PARKFORD MANAGEMENTC.O. , ) FIRST AMENDED CCMPLAINT INC. , a California ) FOR DMAAGES DUE TO . 14 corporation ; RICHARD R. ) BREACH OF CONTRACT; FOR FORDIANI ; THE FORDIANI ) DAMAGES DUE TO FRAUD; 15 C(M PAY; CONTRA COSTA ) FOR INVERSE CONDL”ViNAT I ON; COUNTY REDEVELOPMENT AGENCY, ) FOR DAMAGES DUE TO BREACH OF 16 a body public and corporate ; ) FIDUCIARY DUTY; FOR DMIAGES GBW PROPERTIES , a California ) DUE TO BREACH OF COVENANT; AND 17 corporation ; FORDIANI , SMYERS ) FOR DAMAGES DUE TO NEGLIGENCE & TABACM, INC. , a ) 18 corporation;- and DOES 1 to ) 10.0 , inclusive , ) Department 10 Defendants . ) 20 ------------------------------- ) 21 . I . INTRODUCTORY ALLEGATIONS 22 1 ) Plaintiff is an individual over the age of eighteen 23 ( 18 ) years . 24 2 ) Plaintiff is informed and believes and based thereon 4 25 alleges that defendant PARKFORD MANAGEMENT COMPANY (hereinafter 26 defendant "PARKFORD" ) is a California corporation . 27 28 '1 3 ) Defendant RICHARD K. FORD IANI is an individual over the 2 age of eighteen ( 18) years . 3 4) The plaintiff is ignorant of the true capacity of 4, defendant THE FORDIANI COMPANY, except that plaintiff is informed 5 and believes and based thereon alleges that said defendant is a 6 business entity . 7 5 ) Defendant , CONTRA COSTA COUNTY REDEWELOPMENT AGENCY, is a body public and corporate , existing under the laws of the 9 State of California . IO 6 ) Plaintiff is informed and believes and based thereon 11 alleges that ±defendant GBW PROPERTIES is a California corporation . `12 7 ) Plaintiff is informed and believes and based thereon 13 alleges that defendant FORDIA_NI , SHYERS & TOBACCO, INC. 14 ('hereinafter defendant "F , S&T" ) is a corporation . •15 8) Plaintiff is ignorant of the true names and capacities 16 of the defendants sued herein as DOES 1 through 100 , inclusive , 17 and therefore sues thd lies defenants by such fictitious names . 18 Plaintiff will amend this complaint to allege their true names and 19 capacities when ascertained . Plaintiff is informed and believes 20 and thereon al leges that each of said f ict. i t iously named defendants 21 is in somema.nner- responsible for the injury and damage to plaintiff y . 22 alleged herein . l 23 II . FIRST CAUSE OF ACTION: BREACH OF OONTRACT 24 This cause of action is directed , to all defendants except 25 DOES 31-100 , inclusive . 26 9 ) Plaintiff realleges and incorporates herein by 27 reference paragraphs 1 through 8 of the Introductory Allegations , 28 -2- V 1 the same as if said paragraphs had been expressly repeated in this ? cause of action . 3 ZQ) On August 20 , 1986. plaintiff was the owner of the real 4 property commonly known as Contra Costa CountyAssessor ' s Parcel 5 Number 148-201-006 , situated in the County of Contra Costa , 6 California , . and more particularly described as follows : 7 "Lot 36 , as designated on the map entitled ' Tract No . . 539-2 , Estrella Rancho - Unit No . 2 , Contra Costa 8 County", California ' , which map was filed in the office of the Recorder of the County of Contra Costa , on March 9 12 , 1953 in Volume 53 of Maps , at page 15 . " 10 Said above designated real property will be hereinafter 11 referred to as the "SUBJECT PROPERTY" . The SUBJECT PROPERTY is a . 12 residential lot containing 10 , 000 square feet of land area . . 13 11) On or about August 20 , 1986 plaintiff , as the owner of 14 the SUBJECT PROPERTY, executed an option agreement to defendant 15 PARKFORD. A true and correct copy of said Option Agreement is 16 attached hereto as Exhibit "A" . Said Option Agreement dated August 17 201 1986 will be hereinafter referred to as the "BRANCH OPTION 18 AGREEMENT" . 19 12 ) During the negotiations leading to the execution of the 20 BRAMM OPTION AGREYMENT, defendant Richard R. Fordiani , as 21 President of PARKFORD, disclosed that defendant PARKFORD was 22 interested in purchasing the SUBJECT PROPERTY for the purpose of 23 assembling it with other nearby properties to construct a 24 redevelopment project . Said disclosure was embodied , in part , 25 within paragraph 12 of the BRANUM OPTION AGREF]MENT. Mr . Fordiani 26 further represented to plaintiff during said negotiations that he 27 was approaching other owners of property in the vicinity of the 28 —3— 1 ' SUBJECT PROPERTY, to obtain similar option agreements . Plaintiff 2 demanded that she be treated equal"lv as ether propertv owners in .3 the area . "Specifically , plaintiff requested that she be paid an 4 equal amount of money per square foot as. the owner who received 5 the highest per square foot amount among the properties being 6 assembled . When first presented to plaintiff , the BRANA OPTION 1 AGREBAENT did not contain any language regarding plaintiff ' s 8 requirement that she be treated fairly and equitably . Plaintiff 9 immediately notified defendant Richard R. Fordi'ani that she would 10 not sign . an option agreement without such a clause . Defendant 11 Richard R. Fordiani responded to plaintiff 's demand by inserting 12 the following paragraph ( hereinafter referred to as the "FAIRNESS ;13 CLAUSE" ) : 14 " If anybody is given money that amounts to more than 15 $25 . 00 per square foot of land area then In that event the purchase price herein shall be adjusted to reflect 16 the same amount . " 17 Upon the FAIRNESS CLAUSE being inserted into the BKANLM 18 OPTION AGREi1ViENT by fNlr . Fordiani , plaintiff executed the BRANJA 19 OPTION AGREEMENT. The BRAN(M OPTION AGREHAENT, as so executed , 20 generally provides an option to purchase the SUBJECT PROPERTY for 21 . $250 , 000 . 00 ; or $25 . 00 per square foot , however the purchase price 22 was subject to being increased pursuant to the FAIRNESS CLAUSE as 23 quoted above . . 24 13 ) On or about February 10 , 1989 defendant PARK.FORD obained 25 an option to purchase the real property cc►nmonly known as Assessor ' s 26 Parcel .. Number 148-202-042 . Said real property was owned by 27 Genevieve' M . Maloney, Trustee , and will be hereinafter referred r 28 -4- 1 to as the "MALONEY PARCEL" . Said option agreement obtained from 2 Genevieve M . Maloney , Trustee will be hereinafter referred to as 3 the "MALONEY OPTION AGREEMENT" , and is attached hereto as Exhibit 4 "B" . The MALONEY PARCEL was located in the immediate vicinity of S the SUBJECT PROPERTY, and was ultimately assembled with the SUBJECT 6 PROPERTY in conjunction with a redevelopment project . 7 14 ) Plaintiff is informed and believes and based thereon , 8 alleges that at some time prior to February 10 , 1989 , defendant 9 Richard R. FOrdiani obtained a copy of a land survey prepared by 10 Aliquot Associates from defendant Contra Costa County Redevelopment 11 Agency . Sai-d survey contained information indicating. that the 12 area of the MALONEY PARCEL was 12 , 373 square feet . Plaintiff is 13 informed and believes and based thereon alleges that at some time 14 prior to February 10 , 1989 , defendant Richard R. Fordiani delivered 15 a copy of said land survey *to Genevieve M. Maloney , Trustee . The 16 MALONEY OPTION AGREEMENT generally provides for an option to j • i 17 purchase the MALONEY PARCEL for the sum of $800 , 000 . 00 , which 18 computes to $48 . 49 per square foot . 19 15 ) On or about February 2.8 , 1989 Jim Kennedy , Deputy 1 20 Director - Redevelopment of defendant Contra Costa County 21- Redevelopment Agency , wrote a letter to plaintiff advising , in 22 part , that the BRAN[M OPTION AGREEMENT would be assigned to i 23 defendant Contra Costa County Redevelopment Agency . Such letter 24 further advised : 25 t 26 27 i I 28 I j ` -5- 1 "This is being done so that all property owners would 2 be able to take advantage of tax benefits that occur when property is purchased by a public Agency . " 3 16) In addition , said February 2$ , 1989 letter from Jim 4 Kennedy also stated that defendant Contra Costa County 5 Redevelopment Agency would conduct an appraisal of plaintiff ' s 6 property and would exercise the BRAN(M OPTION AGREEMENT by paying 7 the higher of theoption price or the appraised value . 8 Plaintiff is informed and believes and based thereon alleges 9 that at some, time unknown to plaintiff , defendant Contra Costa 10 County Redevelopment Agency conducted an appraisal of the SUBJECT 11 PROPERTY. Plaintiff is informed and be,' ieves and based thereon 12 alleges that said appraisal indicated art opinion of fair market 13 value for the SUBJECT PROPERTY of $280 , 000 . 00 .. I4 17 ) On Or about August 15 , 1988 plaintiff wrote a letter 15 to defendant Contra Costa Redevelopment Agency in which plaintiff 16 stated , in part , the following: 17 " I had a clause added to my contract stating that if 18 anyone received more than I had been offered , that I would also get the larger amount for my land . Please ' 19 see that that is honored . . . " 20 18) On or about June 1 , 1989 the '.VIALONEY OPTION AGREEMENT 21. was exercised. Genevieve M . Maloney , Trustee , was paid the option 22 price of $600 , 000 . 00 , and defendant Richard R. Fordiani was paid 23 a real estate commission of $36 , 000 . 00 . A deed from Genevieve M . 24 Maloney , Trustee to defendant Contra Costa County Redevelopment 25 Agency was recorded on June 1 , 1989 in Book 15106 of Official 26 Records of Contra Costa County, California , at Page 929 . 27 28 —6 1 19) Plaintiff first learned of the terms of the MALONEY 2 OPTION AGREEMENT and subsequent completed transaction on or about 3 March 26, 1990 . 4 20) Plaintiff is' informed and believes and based thereon 5 alleges. that at some time prior to March 16 , 1989 defendant F, S&T 6 opened Escrow No . 753567 at First American Title Guaranty Company , 7 1300 Civic Drive , Walnut Creek , California , for the purposes of exercising the BT-'ANLIVI OPTION AGREEMENT and generally completing 9 the real estate transaction with plaintiff . 10 21 ) On a date presently unknown to plaintiff , but prior to 11 July 5 , 1989 , plaintiff executed escrow instructions in said Escrow 12 No . 753567 to sell the SUBJECT PROPERTY for $280 , 000 . 00 . 13 22 ) On or about July 5 , 1989 the BRANUVi OPTION AGREEMENT 14 was exercised , and said Escrow No . 753567 was closed . A deed from 15 plaintiff to defendant Contra Costa County Redevelopment Agenev , 16 covering the SUBJECT PROPERTY, was recorded on July 5 , 1989 in 17 Book 15176 of Official Records of Contra Costa County , California , 18 at Page 231 . Upon the close of said Escrow No . 753567 : (a ) plaintiff 19 was paid the sum of $280 , 000 . 00 , being the purported opinion of 20 value , as contained in the appraisal referred to above ; and (b ) 21 defendant Richard R. Fordiani was paid a real estate coffinission 22 by plaintiff.. 23 23) Plaintiff is informed and believes and based thereon 24 alleges that defendant Richard R. Fordiani , at all tunes material 25 herein , was the sole shareholder of defendant The Fordiani Company . 26 27 28 -7- 24) Plaintiff is informed and believes and based thereon 2 alleges that ,defendant Richard R. Fordiani , at all times material 3 herein , was the sole shareholder of defendant PARKFORD. 4 25 ) Plaintiff is informed and believes and based thereon 5 alleges that defendant The Fordiani Company is , and at all times 6 herein mentioned was , the alter ego of defendant Richard R. Fordiani 7 and there exists , and at all times herein mentioned has existed , 8 a unity of interest and ownership between such defendants such 9 that any separateness has ceased to exist , in that defendant Richard -,10 R. Fordiani used assets of defendant The Fordiani Company for his 411 I personal uses , caused assets of defendant The Fordiani Company to 12 be transferred to him without adequate consideration , and withdrew 13 funds from The Fordiani Company ' s accounts for his personal use . 14 Specifically , plaintiff is informed and believes and based thereon 15 alleges that defendant Richard R. Fordiani received checks for the 16 real estate commissions in the Branum and Maloney transactions , 17 for his personal use , notwithstanding that the BRAN-LM OPTION 18 AGREFII'IENT and Nl.ALONEY OPTION AGREEMENT provided for defendant The 19 Fordiani Company to receive such commissions . 20 Defendant The Fordiani Company is , and at all times herein ?l° mentioned was , a mere shell , instrumentality , and conduit through 22 which defendant Richard R. Fordiani carried on his real estate 23 broker business , and defendant Richard R. Fordiani exercised 24 complete control and dominance of such business to such an extent 25 that any individuality or separateness of defendant The Fordiani 26 Company and. defendant Richard R. Fordiani does not , and at all 27 times herein mentioned did not , exist . 28 -8- 1 Plaint if f is informed'and believes and based thereon alleges that defendant The Fordiani Company is , and at all times herein 3 mentioned was , so inadequately capitalized that , compared with the 4 business to be done by t.he .defendant and the risks of loss attendent 5 thereon , its capitalization was trifling . 6 Adherence to the fiction of the separate existence of defendant The Fordiani Company as an entity distinct from defendant i 8 Richard R. Fordiani wouldermit abuse and would p produce an 9 inequitable result in that defendant Richard R. Fordiani invited 10 the public generally and plaintiff in particular , to deal with 11 defendant The Fordiani Company , to plaintiff ' s loss . 12 26) Plaintiff is informed and believes and based thereon . 13 alleges that defendant PARKFORD is , and at all tines herein 14 mentioned was , the alter ego of defendant Richard R. Fordiani and 15 there exists , and at all times herein ;mentioned has existed , a 16 unity of interest and ownership between such defendants such that 17 any separateness has ceased to exist , in that defendant Richard 18 R. Fordiani used assets of the corporation for his personal uses , 19 caused assets of the corporation to be transferred to him without 20 adequate consideration , and withdrew funds from the corporation ' s J. 21. accounts for his personal use . 22 Defendant PARKFORD is , and at all times herein mentioned 23 was , a mere shell , instrumentality , and conduit through which 24 defendant Richard R. Fordiani carried on his real estate broker 25 business , and defendant Richard R. Fordiani exercised complete 26 control and dominance of such business to such an extent that any 27 individuality or separateness of defendant PARKFORD and defendant 28 -9- 1 Richard R. Fordiani does not , and at all times herein mentioned 2 did not , exist . 3 Plaintiff is informed and believes and based thereon alleges 4 that defendant PARKFORD is , and at all times herein mentioned was , 5 so inadequately capitalized that , compared with the business to 4 be done by the defendant and the risks of loss attendent thereon , its capitalization was trifling . 8 Adherence to the fiction of the separate existence of 9 defendant PARKFORD as an entity distinct; from defendant Richard 10 R. Fordiani would permit abuse of the corporate privilege and would 11 produce an inequitable result in that defendant Richard R. Fordiani 12 invited the public generally and plaintiff in particular , to deal 13 with defendant PARKFORD, to plaintiff ' s loss . 14 27 ) Plaintiff is informed and believes and based thereon 15 alleges that , after the close of said Escrow No . 753567 , defendant 16 GBW Properties acquired the optionee ' s rights and obligations in I7 and to the BRANUM OPTION AGREIMENT, by document recorded July 5 , 18 1989 in Book 15176 of Official Records of Contra Costa County , 719 California , at Page 233 . 20 28) Plaintiff is informed and believes and based thereon 21alleges that at all times herein mentioned , the defendants to whom 22 this cause of action is directed were the agents and employees of 23 each other , and in doing the things herein alleged were acting 24 within the course and scope of such agency and employment and with 125 the permission and consent of their co- defendants . 26 29) The purchase price due under the BRANLMOPTIONAGREOAENT 27, was the sum of ,$484 , 900 . 00 as established by the exercise of the 28 i -10- % 1 MALONEY OPTION AGREEMENT approximately one month prior to the 2 purported exercise o.f the BR.ANUA OPTION AGREEMENT. Of said 3 $484 , 900 . 00 , the sum of $280 , 000 . 00 has been paid to date . There 4 is now a balance due pursuant to the BRANLM OPTION AGREEMENT, in 5 the amount of $204 , 900 . 00 . 6 30 ) On or about May 2 , 1990 and july 11. , 1990 , plaintiff 7 submitted claims to defendant Contra Costa County Redevelopment 8 Agency , pursuant to Government Code §910 , regarding the wrongs 9 committed against plaintiff as alleged herein . Said claims were 10 deified by said defendant on or about June 5 , 1990 and August ' 14 , 11 1990 , respectively . .12 31 ) On or about �kaay 8 , 1990 plaintiff demanded the remaining 13 balance due on the B.RANCM OPTION AGREIM ENT ( $204 , 900 . 00 ) from 14 defendants Richard R. Fordiani and PARKFORD. Plaintiff is informed 15 and believes and based thereon alleges that defendants Richard R. 16 Fordiani and PARKFORD, have refused , and continue to refuse , to 17 acknowledge that such balance due is owing to plaintiff . i8 32 ) Plaintiff is informed and believes and based thereon 19 alleges that , in addition to the MALONEY PARCEL, there have been 20 other transactions within the immediate vicinity of the SUBJECT 21, PROPERTY which resulted in a higher per square foot payment than 22 plaintiff actually received . Plaintiff is informed and believes 23 and based thereon alleges that such other transactions are 24 summarized as follows : 25 (a) Contra Costa County Assessor Parcel Number 148-201-004 , 26 commonly, referred to as the Stevens parcel , $35 . 52 per square foot ; 27 28 -11- r (b ) Contra Costa County Assessor Parcel Number 148-202-041 , 2 commonly referred to as the Struck pacel , $36 . 50 per square foot ; :3 and 4 (c ) Contre Costa County Assessor Parcel Number 148-202-017 , 5 commonly referred to as the Hart parcel , $33 . 83 per square foot . 6 33) Paragraph 14 of the BRANUVI OPTION AGREEMENT contains 7 an attorney ' s fees clause as follows : i8 " In the event of any controversy , claim, or dispute 9 between the parties hereto , arising out of or relating to this Agreement or the breach thereof , the prevailing 10 party ;shall be entitled , in addition to such other , relief as may be granted , to a reasonable sum as and 11 for attorney ' s fees in such litigation which shall be determined by the court in such zitigation or in a 12 separate action brought for that purpose . " 13 WHEREFORE, plaintiff prays judgment against defendants as 14 hereinafter set forth . 15 III . SECOND CAUSE OF ACTION: FRAUD 16 This cause of action is directed to all defendants , except . 17 DOES 1 through 30 , inclusive , and DOES 41 through 100 , inclusive . 18 34) Plaintiff realleges and incorporates herein by 19 . reference paragraphs 1 through 8 of the Introductory Allegations 20 and paragraphs 10 through 33 of the First Cause. of Action , the same 21� as if said paragraphs had been expressly repeated in this cause 22 of action . 23 35) Between February 10 , 1989 ( the date of the MALONEY 24 OP'T'ION AGRE.MIENT) and July 5 , 1989 ( the date that the BRANUVI OPTION 25 AGREEVIENT was exercised) , plaintiff had many contacts with 26 defendant Richard R. Fordiani , defendant PARKFOR.D, defendant The 27 Fordiani Company , and defendant Contra Costa County Redevelopment 28 -12- 1 - Agency . During several of said encounters with said defendants , 2 plaintiff specifically raised the issue of the amount of 3 compensation she was to. receive under the BRANLIM OPTION AGRFFMENT. 4 , . Said defendants repeatedly represented that the $280 , 000 which 5 plaintiff was to receive was more than she would receive under the 6 terms of the BRANUA OPTION AGRE04ENT. The representations so made 7 by said defendants were in fact false in that the existence *of the 8 MALONEY OPTION AGREBA ENT and/or its subsequent exercise entitled 9 plaintiff to more than $280 , 000 . Said defendants further suppressed 10 and concealed from plaintiff all facts relative to the MALONEY 11 OPTION AGRE04ENT and subsequent exercise thereof . Plaintiff is 12 informed and believes and thereon alleges that when said defendants . 13 made such representations to plaintiff they knew such 14 representations to be false . 15 36) During the month of June 1989 , plaintiff began looking 16 for - a residence to replace the SUBJECT PROPERTY. In order to � 17 determine how much money plaintiff would have in order to purchase 18 a replacement residence , plaintiff contacted defendant Richard R. 191 Fordiani . On or about June 20 , 1989 , plaintiff met with defendant 20 Richard It. Fordiani to discuss the amount due under the PRANTMI 21 OPTION AGREDAENT. Plaintiff further reminded defendant Richard 22 R. Fordiani of the FAIRNESS CLAUSE contained in the BRAN UM OP'T'ION 23 AGREEMENT. Plaintiff also inquired from defendant Richard R. 24 Fordiani whether or not the property owners who had not yet agreed 25 to sell their parcels (hereinafter "HOLD OUT OWNERS" ) , would receive 26 more than $28 . 00 per square foot for their land . At such meeting , 27 defendant Richard R. Fordiani represented to plaintiff that the 28 -13- I HOLD OUT OWNERS would not be receiving more than $28 . 00 per square 2 foot for their land . Tho representations so made by said defendant 3 were in fact false in that plaintiff is informed and believes and 4 based thereon alleges that the HOLD OUT OWNERS were , at the time , . 5 being offered more than $28 . 00 per square foot . . Ultimately , said 6 HOLD OUT OWNERS did receive more than $28 . 00 per square foot . 7 Plaintiff is informed and believes and thereon alleges that when 8 defendant Richard R. Fordiani made such representations to 9 plaintiff , he knew said representations to be false . Plaintiff ' s . 10 reliance upon defendant Richard R. Fordiani ' s representations mith 11 respect to the HOLD OUT OWNERS was reasonable and justified , in 12 par.t because said defendant was a licensed real estate broker and 13 claimed to be areal estate appraiser with vast experience in the 14 field of condemnation for redevelopment purposes . 15 37 ) Defendant Richard R. Fordiani chose to place the 16 FAIRNESS CLAUSE on Exhibit "B'.1 to the BRANUA OPTION AGREEMENT, 17 rather than placing such clause in . the body of the document . 18 Plaintiff , is informed and believes and thereon alleges that 19 defendant Richard R. Fordiani , chose to place the FAIRNESS CLAUSE 20 in such location for the express purpose of allowing him, defendant . 21 PARKFORD, defendant THE FORDIANI CXJMPANY, and their successors and 22 assigns , to deny the applicability of the FAIRNESS CLAUSE in the 23 event that the BRANIIVI OPTION AGREBVIENT was exercised in a manner X24 other than by execution of said Exhibit "B" . The placement of the 25 FAIRNESS CLAUSE in said Exhibit "R" , instead of in the body of the 26 document , was part of a plan by defendant Richard R. Fordiani to 27 defraud plaintiff of the amount she was otherwise due under the 28 r . ;i -14- 1 BR.ANLM OPTION AGREEMENT. In fact , plaintiff is informed and 2 believes and thereon alleges that the BRANLM OPTION AGREEMENT was exercised in a manner whereby Exhibit "B" was never executed . 4 Thereafter , in furtherance. of the plan of defendant Richard R. 5 Fordiani to defraud plaintiff , plaintiff is informed and believes 6 and thereon alleges that defendants Richard R. Fordiani and Contra Costa County Redevelopment Agency did deny their ob1 igat ions• under 8 the BR.ANUVI OPTION AGREWENT based upon the location of the FAIRNIESS 9 CLAUSE. At all times during the negotia ,. ion of the BRANMI OPTION 10 AGREEMENT, defendant Richard R. Fordiani represented to plaintiff 11 that the FAIRNESS CLAUSE was intended to be a part of the entire 12 option agreement . The representations so made by said defendant 13 were in fact false in that said defendant intended to avoid 14 application of the FAIRNESS CLAUSE simply by reason of its location 15 in Exhibit "B" , instead of in the body of the option agreement . 16 plaintiff is informed and believes and thereon alleges that when 17 said defendant made such representations to plaintiff , he knew 18 such representations to be false . 19 38) The false representations and concealment of facts , as 20 alleged hereinabove , were made by , or on behalf of , said defendants 21 with the intent to defraud and deceive plaintiff and with the 22 intent to induce plaintiff to sell her hone for $280 , 000 or less , 23 when in fact she was entitled to considerably more compensation . 24 39) At the time said representations were made by , or on 25 behalf of , said defendants , and at all times while the facts 26 regarding theMALONEY PARCEL were being suppressed and concealed 27 from plaintiff , plaintiff was ignorant of the falsity of defendants ' 28 a. -15- 1 representations and believed them to be true . In reliance on such 2 representations , plaintiff was induced to and did execute escrow 3 instructions in Escrow No . 753567 , for the sale of her real property 4 whereby she received the sum of $280 , 000 , instead of the larger 5 and correct sum she was entitled to . Had plaintiff known the 6 actual facts , she would not have taken such action . 7 40) The aforementioned conduct of said defendants was ' 8 motivated by a desire to increase their profits , at the expense 9 of plaintiff . .10 41 ) The aforementioned conduct of said defendants was an 11 intentional misrepresentation , deceit , and/or concealment of a 12 material fact known to the defendants , with the intention on the 13 part of the defendants of thereby depriving plaintiff of property 14 or legal rights or otherwise causing injury , and was despicable 15 conduct that subjected plaintiff to a cruel and unjust hardship : 16 in conscious disregard .of plaintiff ' s rights , so as to justify an 17 award of exemplary and punitive damages . 18 WHEREFORE Plaintiff prays judgment against defendants as 19 hereinafter set forth . 20 IV. THIRD CAUSE OF ACTION: FRAUD 21 This cause of action is directed to all defendants except 22 DOES 1 through 40 , inclusive , and DOES 51 through 100 , inclusive , 23 and is to be asserted in the event that it is .determined that the 24 BRANCM OPTION AGRETMENT was never exercised . 25 4 ) Plaintiff realleges and incorporates herein by 26 reference paragraphs 1 through 8 of the introductory allegations , 27 and paragraphs 10 through 33 of the First Cause of Action , and 28 -16- I paragraphs 35 and 36 of the "Seeond Cause of Action , the same as 2 if said paragraphs had been expressly repeated in this Cause of 3 Action . ..4 43 ) Between February 10 , 1989 ( the date of the MALONEY 5 OPTION AGREEMENT) and July 5 , 1989 ( the date that the BRANUI op,rION 6 AGREEMENT. was exercised ) , plaintiff had many contacts with 7 defendant Richard R. Fordiani , defendant PARIMORn, defendant The 8 Fordiani Company , and defendant Contra Costa County Redevelopment 9 Agency . Said defendants represented to plaintiff that the escrow 10 instructions in said Escrow No . 753567 , that she ,vas being asked 11 to execute , and subsequently did execute , for the sale of the 12 SUBJECT PROPERTY, were to facilitate the exercise of the BRANUVI 13 OPTION AGRM'IENT. The representations so made by said defendants 14 were in fact false in that said defendants had no intention to 15 exercise the BRANUM OPTION AGREEMENT, and were using said escrow 16 instructions in an attempt to create a new, independent contract 17 not based upon the BRANM OPTION AGR.ETMENT. Plaintiff is informed 18 and believes , and thereon alleges that when said defendants made 19 such representations to plaintiff they knew such representations j 20 to be false . 21 44 ) The defendants to whom this cause of action is directed 22 further suppressed and concealed from plaintiff all facts 23 indicating that the escrow instructions for the sale of the SUBJECT 24 PROPERTY were not intended by them to be in furtherance of an 25 exercise of the BRANtM OPTION AGREEMENT. 26 45) The escrow instructions in said Escrow No . 753567 .were k 27 used as part of a scheme by the- defendants to whom this cause of 28 -17 1 action is directed to avoid the application of the FAIRNESS CLAUSE 2 in t h e BRANUZ OPT ION AGREEMENT. 3 46) Plaintiff realleges and incorporates herein by 4 reference paragraphs 38 through 41 of the Second Cause of Action , S the same as if said paragraphs had been expressly repeated in this 6 cause of action . WHEREFORE plaintiff prays judgment against defendants as 8 hereinafter set forth . 9 V. FOURTH CAUSE OF ACTION: INVERSE CONDFMNA:TION 10. This cause of action is directed to defendant Contra Costa 11 County Redevelopment Agency only . 12 47 ) .Plaintiff realleges and incorporates herein by 13 reference paragraphs t and 5 of the Introductory Allegations , 14 paragraphs ' 10 through 22 , 24 , 26 , 28 through 30 , and 32 of the 15 First Cause of Action, 35 , 36 , and 38 through 40 of the Second 16 Cause of Action , and paragraphs 43 through 45 .of the Third Cause 17 of Action , the same as if said paragraphs had been expressly 18 repeated in this cause of action . 19 48) Defendant Contra Costa County Redevelopment Agency 20 acquired the SUBJECT PROPIE.RTY .without compensating plaintiff for 21 the value of the contractual rights created by the BRANUA OPTION 22 AGREWENT. As a result of such acquisition , plaintiff ' s contractual 23 rights pursuant to the BRANUVI OPTION AGREBAENT were rendered 24 valueless . 25 49) The acquisition of the SUBJECT PROPERTY by defendant 26 Contra Costa County Redevelopment Agency ., without the full payment 27 of the amount due under the BRANUVI OPTION AGREEMENT, constitutes 28 -18- I a taking of plaintiff ' s contractual rights , without just 2 compensation . Furthermore , such actions by defendant Contra Costa 3 County Redevelopment Agency constitute a taking of the SUBJECT 4 PROPERTY without just compensation . 5 50 ) Plaintiff has incurred and will incur attorneys , 6 appraisal , and engineering fees because of this proceeding , in amounts that cannot yet be ascertained , which are recoverab-le in this action under the provisions of Section 1036 of the Code of 4 Civil Procedure . 10 WHEREFORE Plaintiff prays judgment against defendants as 11 hereinafter set forth . 12 VI . FIFTH CAUSE OF ACTION: BREACH OF 7IDUCIARY DUTY 13 This cause of action is directed to defendants Richard R. . 14 Fordiani , The Fordiani .Company , PAR.I(FOR—D and DOES 51 through 60 , 15 inclusive . 16 51 ) Plaintiff realleges and incorporates herein by 17 reference paragraphs 1 through 4 , and 8 of the Introductory 18 Allegations , , paragraphs 10 through 23 and 31 through 33 of the 19 First Cause of Action., and paragraphs 35 "through 41 of the Third 20 Cause of action the same as if said paragraphs had been expressly 21 repeated in this cause of action . 22 52 ). Paragraph 10.,,of the BRANUVI Ot'TION AGREEMENT acknowledged 23 that the defendants to whom this cause of action is directed were 24 acting as plaintiff ' s real estate broker . Said paragraph provided 25 for plaintiff to pay said defendants cash from the proceeds at the 26 close of the ,escrow for the SUBJECT PROPERTY, for services rendered 27 as a broker in the transaction , the sum of 6% of the purchase price 28 -19- i 1 of the SUBJECT REAL PROPERTY;" On or about July 5 , 1989 , the said . 2 Escrow No . 753567 ( for the sale of the SUBJECT PROPERTY) closed , 3 and plaintiff paid defendant Richard R. Fordiani the sum of 4 $15 , 000 . 00 as and for a real estate commission . Defendant Richard ,5 R. Fordiani is a licensed real estate broker in the State of b California . 7 53 ) As a licensed real estate broker being paid a comni,ssion 8 by plaintiff , defendant Richard R. Fordiani owed a fiduciary duty 9 to the plaintiff which continued through and including the close 10 of the escrow for the SUBJECT PROPERTY on July 5 , 1.989 . Defendants 11 PARKFORD and The Fordiani Company also owed plaintiff a fiduciary 12 duty by reason of the fact that Exhibit "B" to the 13RANUVI OP'T'ION 13 AGREEMENT stated that The Fordiani Company was " the Broker in this .14 transaction" and by reason of the fact that paragraph 10 of the 15 BRAN VI OPTION AGREEMENT indicated Defendant PARKFORD was rendering 16 f1broker services " . Plaintiff relied upon the existence of such 17 fiduciary duty in her dealings with the defendants to whom this 18 cause of action is directed . 19 54 ) The defendants to whom this cause of action is direeted 20 breached their fiduciary duty to plaintiff in that they concealed 21 from plaintiff facts which would have disclosed that other 22 properties in the vicinity of the SUBJECT PROPERTY were being sold 23 for amounts greater than $28 . 00 per square foot . Such failure to 24 disclose resulted in plaintiff signing escrow instructions for the 25 sale of the SUBJECT PROPERTY for $280 , 000 . 00 instead of the correct , 26 higher amount . 27 28 -20- I 1 55) The defendants to whom this cause of action is directed 2 breached their fiduciary duty to plaintiff in that they failed to 3 advise plaintiff to seek the advice of legal counsel in regard to 4 the possible effect of the FAIRNESS CLAUSE being placed in Exhibit 5 "B" to the BRANIM OPTION AGREIMENT, rather than in the body of the 6 BRANW OPTIONAGRE>~1VIENT. Such failure to properly advise plaintiff 7 resulted in damage to plaintiff in amount not presently 8 ascertainable , but which will be ascertained before conclusion of 9 this action . 10 56 ) Plaintiff is informed and believes and fused thereon 11 alleges that Ias a result of plaintiff only receiving $280 , 000 . 00 12 for the sale of the SUBJECT PROPERTY, the defendants to whom this 13 cause of action is directed made a secrete profit from the 14 transaction , to wit : they acquired the SUBJECT PROPERTY through 15 their alter ego , defendant PARKFORD resold the SUBJECT PROPERTY, 16 and kept for themselves , the difference between the amount which 17 was otherwise due pursuant to the BRANiM OPTION AGREMIENT and 18 $280 , 000 . 00 . 19 WHEREFORE, . plaintiff prays for judgment against defendants 20 as hereinafter set forth . i 21 VII . SIXTH CAUSE OF ACTION: BREACH OF IMPLIED COVENANT OF GOOD , 22 FAITH AND FAIR DEALING j 23 This cause of action is directed to defendants Richard 24 Fordiani , The Fordiani Company , PARKFORD, and DOES 61 through 80 , 25 inclusive . 26 57 ) Plaintiff realleges and incorporates herein by 27 reference paragraphs 1 through 4 , and 8 of the Introductory 28 -21- F' 1 I Allegations , paragraphs 10 through 29 and 31 through 33 of the 2 First Cause of Action , and paragraphs 35 through 41 of the Third 3 Cause of action the same as if said paragraphs had been expressly 4 repeated in this cause of action . 5 58 ) The BRAN(M OPTION AGREE14ENT is a contract which contains 6 an implied covenant of good faith and fair dealing which implies 7 that neither party will do anything that will deprive the other 8 of the benefits of the contract . 9 59) The defendants to whom this cause of action is directed 10 had a duty to plaintiff to refrain from doing anything that would 11 render performance of the BRANUO OPTION AGREB`,IENT impossible by 12 any act on their . part , and also had the duty to plaintiff to do 13 everything that he contract presupposed would be done by said 14 defendants to accomplish its purpose . 15 60 ) The defendants to whom this cause of action is directed 16 breached the implied covenant of good faith and fair dealing in 17 the BR_ANUA OPTION AGREBIAENT by doing the acts , and perpetrating 18 the fraud , as hereinabove alleged . 19 11HEREFORE, plaintiff prays action against defendants- as 20 hereinafter set forth . 21 VIII . SEVENTH CAUSE OF ACTION; NEGLIGENCE 22 This cause of action is directed to defendants Richard R. 23 Fordiani , The Fordiani Company , PARNFOR.D, and DOES 81 through 100 , 24 inclusive . 25 61 ) Plaintiff realleges and :incorporates herein by ' 26 reference paragraphs 1 through 4 ' and 8 of the Introductory 27 Allegations , paragraphs 10 through 29 and 31 through 33 of the 28 -22- 1 1 First Cause of Action, paragraphs 35 through 41 of the Third Cause 2of action , and paragraphs 43 through' 45 of the Fourth Cause of 3. Action the same as if said paragraphs had been expressly repeated 4 in this cause of action . 5 62) At all times during the negotiations "between plaintiff 6 and defendant Richard R. Fordiani , leading, to the execution of the BRANu4 OPTION. AGREPMENT, plaintiff was a potential client of the 8 defendants to whom this cause of action is directed , in that 9 plaintiff was, being asked by said defendants to pay a coninission 10 for brokerage services , contingent upon exercise of the option . 11 63 ) During said negotiations , and at all times immediately 12 prior to plaintiff ' s execution of the BRANUVI OPTION AGREITMENT, the 13 defendants to wham this cause of action is directed negligently 14 performed the following acts or orrenissions : (a) Failed to advise 15plaintiff to seek legal advice as to the possible effect of placing 16 the FAIRNESS CLAUSE on Exhibit "B" to the BRANUVI OPTION AGREBAENT, 17rather than in the body of the BRANITA OPTION AGREBVIENT; and (b ) 18 placed the F'AIRNESSS CLAUSE: on Exhibit "B" to the BRANUM OPTION 19 AGREEMENT rather than placing the FAIRNESS C(,AUSE in the body of 20 the BRANUA OPTION AGREBAENT. 21, 64 ) After execution of the BRANCH OPTION AGREEvIENT, I 22 Plaintiff became a client of the defendants to whom this cause of 23 action is directed in that plaintiff agreed to pay said defendants 24 a real estate coalmission contingent upon the sale of the SUBJECT 25 PROPERTY. 26 65) After plaintiff ' s execution of the BRANU4 OPTION 27 AGREBAENT, the defendants to whom this cause of action is directed f 28 -23- b { 1 negligently failed. to properly supervise and monitor the paperwork 2 involving the sale of the SUBJECT PROPERTY, and plaintiff is 3 informed and believes and thereon alleges that said defendants 4 allowed the BRANIM OPTION AGREEMENT to be exercised without Exhibit 5 "B" thereto being executed . Furthermore , said defendants 6negligently failed to properly keep plaintiff informed ofthe 7 status of the BW.NW OPTION AGREEMENT prior to the close of. said SEscrow No . 753567 for the sale of the SUBJECT PROPERTY. Had 9 defendants no't been so negligent , the BRANTJM OPTION AGREBAENT would 10 have 'Peen exercised by execution of said Exhibit "?3" , or in the 11 alternative, plaintiff would have been informed that the BRANUvI 12 OPTION AGREMIENT was not being exercised by execution of said 13 Exhibit "B" , w.hich would have allowed plaintiff to take action at 14 such time to protect her rights . 15 66 ) The actions or inactions of the defendants to whom this 16 cause of action is directed , as alleged above , were below the 17 standard of care for real estate brokers in the conrnuni t,y where i8 the SUBJECT PROPERTY is located . 19 67 ) The negligent acts of the defendants to whom this cause 20 of action is directed , as alleged above , culminated in plaintiff 21, being damaged by the sale of her home for an incorrect and lesser 22 amount of compensationg on July 5 , 1989 . 23 68) As a proximate result of the negligence of the defendants 24 to whom this cause of action is directed , and each of them, plaintiff 25 has been damaged in an amount not presently ascertainable , but 26 which will be determined prior to conclusion of this action . 27 28 i -24- I l 69 ) As a further proximate result of the negligence of the 2 defendants to whom this cause of action is directed , and each of them, plaintiff has incurred and ,will continue to incur attorneys ' 4 fees in the pursuit of this litigation . Had it not been for .the 5 negligence of the defendants to whom this cause of action. is 6 directed , plaintiff would not have been placed in her present 7 position , and would not have had to insitute this legal proceeding . 8 WHEREFORE, plaintiff prays judgment against defendants as 9 hereinafter set forth : 10 PRAYER 11 1 . For damages for breach of contract in the amount of 12 $204 , 900 . 00; 13 2 . For general damages in ' an amount not presently 14 ascertainable , but which will be determined prior to the conclusion 15 of this action ; 16 3 . For punitive damages ; 17 4 . For attorneys ' fees expended by plaintiff ; 18 5 . For an amount equal to the value of the property .and 19 rights taken by defendant Contra Costa County Redevelopment Agency ; 20 6 . For all attorneys ' , appraisal and ,y pp engineering fees 21 expended by plaintiff as a result of this proceeding , in accordance 422 with the provisions of Sections 1036 of the Code of Civil Procedure ; 23 7 . For costs of suit herein incurred ; .and �4 8 . For such other and further relief as the court may deem 25 proper . 26 27 28 -25- r� Date : August 5 , 1990 COX, GARRErr do LALLY 2 A Professional Corporation 3 4 AV I D R. F I Seim Attorneys for Plaintiff 6 7 8 . 9 10 11 12 13 14 15 16 17 18 19 20 21. 22 23 24 25 26 27 28 -26- OPTiON AGREEMENT Preamble �� r This Agreement made this �-- day of SC 1986, at Walnut Creek, California, by Wilna L. Branum, hereinafter collectively referred to as "Optionor(s) ," and Parkford Management Co. , Inc. , a California Corporation., hereinafter referred to as "Optionee." Recitals WE EREAS, Optionor(s) are the owners of certain real property situated in Contra Costa County, hereinafter referred to as "the Property," commonly known as 151 Elena Drive, Walnut Creek, California, and more particularly described in ' Exhibit "A" which is attached hereto and by this reference made a part hereof; and t WHEREAS, Optionor(s) desires to grant and Optionee desires to acquire the exclusive right to purchase, without becoming obligated to purchase , the property at an agreed price and under specified terms and conditions; NOW THEREFORE, it is ©greed as follows: Grant of Option 1 . Optionor(s) hereby grant to Optionee the exclusive right to purchase the Property at a price and under the terms and conditions set forth herein. l 1 [BIT A Option Period 2. This option shall commence on the 2�ay of 1986 at D;sal araJpzwand continue until the j! 'day ofAul r. 1981 at /yr am/gs�unless extended as herein provided for. Consideration 3. This option is granted in consideration of Optionee' s payment to Optionor(©) of the sum of $250.00 payable in cash or by Optionee' s check drnwn. to the order of Optionor(s) , subject to collection, receipt of which is hereby acknowledged . Application of Consideration to Purchase Price 4 . If this option or any extension hereof is exercised in accordance ` with its terms, then credit shall be given to Optionee for the consideration paid Optionor(s) by Optionee for this option and for any extension hereof against the purchase price, Retention of Consideration 5 . In the event this option or any extension hereof is not exercised, all sums paid to Optionor(s) by Optionee shall be retained by Optionor(s) in consideration of the granting of this option. Exercise of Option 6 . At any time prior to the expiration of this option or of any extension hereof, Optionee may exercise this option by execution and tender to Optionor(s) of an instrument in the form of Exhibit 2 "B" attached hereto and by this reference made a part hereof. Optionors) shall then immediately execute and deliver to Optionee an executed copy of the instrument. Assignment 7 . It is acknowledged , agreed and understood by Optionor(s) and Optionee that this Option was entered into with the understanding that, Optionee would use reasonable efforts to assign its rights hereunder to the County of Contra Costa Redevelopment Agency (the "Agency") so that the Agency, not Optionee , would ultimately exercise this option. This is a material c=onsideration for entering into this Agreement. In the event that Agency refuses Optionee' s written offer of assignment, and Optionee , rather than Agency, exercises this option and Optinor as thereby unable to preserve it.s Proposition 13 real estate tax base, or in the event that the county assessor finds that the exercise of option by the Agengy does not operate to preserve Optionors) Proposition 13 real estate tax base, Optionee agrees to pay to Optionor(s) the sum ,of Thirty Thousand Dollars ($30,000.00) . Th us sum is in addition to the purchaiae price for the Property set forth in paragraph 10 of this Agreement , and is due and payable at close of escrow. Failure by Optionee to make a written offer of assignment to Agency shall be a material breach of this Agreement. It is agreed that an assignment of this option to Agency would be for the purpose of preserving Optionor' s Proposition 13 real estate tax base. There Is no expectation of receiving other benefits, such as relocation costs and Optionor(s) expressly releaees Optionee and Agency from any obligation to Optionor(s) for relocation expenses. 3 ( Rijzhts to Extend 8. Optionor(s) further grant Optio6e'6 the right to extend the original option period for two consecutive one—year periods. Said right may be exercised by Optionee by, notice thereof and tender of the consideration discussed below to Optionor(s) , on or before the expiration date of the original option period or a prior extension thereof . Consideration for Extension 9. If Optionee exercises his right to extend rhe option period, it shall pay to Optionor(s) for each such annual extension the sum of $500.00 for the period from the Q day of jj�,Sl 1987 through i the Q7 ::! day ofl��511988 at /°' y) atn/wand $1 ,000.00 for the period from the 22 ` day of —1 988 through the Z0 day r of/ 1989 at 0.' amkr Purchase Price 10, Optionee and Opticner(s) hereby agree that the purchase price for purchase of the Property is Two Hundred Fifty Thousand Dollars ($250,000.00) . Payment shall be made '-n accordance with Exhibit B. Optionee and Optionor(s) further agree that Optionee is acting as a real estate broker for Optionor(s) and that: Optionee ones Optionor(s) a fiduciary duty. Optionor(s) agrees to pay to Optionee, pursuant to Exhibit B, 61% of the purchase price as compensation for Optionee`s broker services, in the event that the option is' exercieed. Optionee agrees that any amounts received for 4 r i the Property exceeding the above mentioned purchase price shall accrue to and be given 'to Optionor(s) . Automatic Termination 11 . If Optionee fails to exercise this option in accordance with its terms and within the option period or any extension hereof, then this option and the rights of Optionee, including all rights to any future extensions, shall automatically and immediately termi[ ate without notice. Thereafter, Optionee properly execute, acknowledge, and .deliver to Optionors) within 30 days of request therefore, a quitclaim deed or such other document as reasonably may be required by a title insurance company to verify the termination of this Agreement. l Disclosure 12 . Optionor(s) hereby understands and acknowledges that (i) the sole shareholder of both The Fordiani Co. and Parkford Management Co. , Inc. is Richard R. Fordiani, (ii) Parkford Management Co. , Inc. has acquired and is acquiring other options to purchase real property adjacent to and in the area of the Property (the "Assembled Property") , for the purpose of developing the Property and the Assembled Property, (111) Parkford Management Co, , Inc. and/or Richard R. Fordiani, individually, intend to develop or to enter into a joint venture, partnership or other business entity with other persons or entities to develop the Property and the 5 Assembled Property or alternatively to sell the Property and the Assembled Property. "Assembled Property" Option Extension or Exercise 13. Optionee hereby acknowledges and agrees ,thilt it is Optionor's intent in granting this Option that the Property not be isolated or separated from the other properties of the "Assembled Property and that this is a material inducement for entering into this Agreement . Therefore , Optionee hereby expressly agrees that in the went O,^^.tionee extends any one option for tiny property in the "Assembed Property"; Optionee shall also extend this option. Optionee further agrees that in the event Optionee exercices any one option for any property in the "Assembled Property", Optionee shall also exercise this option. For purposes of this paragraph, the "Assembled Property" shall be deemed to mean any and all property located in Estrella Rancho, commonly known as Elena Drive, Elena Court , and Juana Court , Walnut Creek, California. Assignability of'Option 14 . Optionee may , at its sole discretion, assign this Agreement . Optionorts Representations and Warranties 15. Optionor(s) represents and warrants that there are no leases or tenancy agreements which have terms longer than thirty (30) days or which have a termination notice provision longer than thirty (30) days. , Optionor(s) is fully aware that Optionee is relying on these 6 representations and warrants as a material inducement for entering into this Agreement and hereby agrees to indemnify and hold _. Optionee. harmless from and against any and all claims, demands, losses, damagea, liabilities, lawsuits and other proceedings, Judgments and awards and costs and expenpes (including but not limited to reasonable attorney' s fees) that it may suffer as a result of any inaccurancy (which term includes misleading, t deceptive and incomplete statements) in the statements certified in this paragraph. i New Lease or Tenancy Agreements 16. In the event tale option period is extended by Optionee, Optionor(B) agrees not to enter into any lease or tenancy agreement which has a tern longer than thirty (30) days or with a termination notice provision longer than thirty (30) days during the pendency of this Agreement . Notices 17 . Unless otherwise provided herein, any notice or delivery to be given hereunder by either party to the other may be effected by personal delivery in writing or by registered or certified mail , postage prepaid, return receipt requested. Mailed notices shall be addressed as set forth below, but each party may change his address by written notice in accordance with this paragraph. 7 To Optionor(s) : Wilna L. Branum 151 Elena Drive Walnut Creek, CA 94596 To Optionee: Parkford Management Co. , Inc. 1660 Olympic Blvd. , Suite 211 Walnut Creek;, CA 94596 Tender 18 . Unless otherwise provided herein., any tender of payment to be made hereunder shall be by personal delivery to Optionor(s) at the address set forth in paragraph 17 or at any other place mutually agreed upon by Optionor(6) and Optionee. Entire Agreement 19. This instrument contains the entire Agreement between the parties ( relating to the option herein granted. Any oral representations or modifications concerning this instrument shall be of no force and effect excepting a subsequent modification in writing, signed by the party to be charged. Attorney's Fees 20. In the event of any controversy, claim, or dispute between the parties hereto, arising out of or relating to this Agreement or the breach thereof, the prevailing party shall be entitled, in addition to such other relief as may be granted , to a reasonable sum as and for attorney' s fees in such litigation which shall be determined by the court, in such litigation or in a separate action brought for that purpose. t 8 f � Binding Effect 21 . This Agreement shall bind and inure to the benefit of the respective heirs, personal representatives , successors, and assigns of the parties hereto. Execution IN WITNESS WEEREOF, the parties hereto have executed this Option } Agreement the day, and year first above written. OPTIONOR(S) 1 -0 46 "�/Z- .61 Wilna L. Branum Date Time OPTIO EE /o'rJ P rkf ord Mana e [ o. , Inc.� Da e Time _ y Richard R. Ford ani, President 9 Wilna L. Branum Lot 36, as shown on the map of Tract No. 539-2 , Estrella Rancho - Unit No. 2 , filed March 1.2, 1954 in Book 53 of Maps , at Page 15 , in the office of the Recorder of Contra Costa County. { l 10 • nC51UCIV l Lt,cart•-•-•..— RECEtvE0fROM...... grkfor( t 'gement Co n , • �� r �.. hertfnahsr dcugrnalod a PURCHASER,i s a s...2..000_.00. ....... . .......... ...(DOLLAAS) rluctd by O Casts Zk Personal Check Nylt)le lo..Cbe_.Ti tic.Co ❑ Cath,ers Check O o . .........................to be�d,e� dee on> " uusi upceplance of this ones,u deposit on account d IN PURCHASE PRICE d 1250,000.00 .(Two. Hundred..Fi fey. Thoue"lTQtuAS) !Of uxfill prcpersysllualedInINCity of.....Walnut_.Cre-ek........i :Cantyd...:Contra.Qaer.a........Suit of....Calilocaia deu:t.td it:..15.1.-Elena.Drive................................................. upon ttvo"lowing TERAAS and CONDITIONS: 1. DEPOSIT INCREASE. The deposit stall be increased to i.5•,000_.00.................. with.,...30...days Iran Acuptat".evidencod by tlsh .2. PRORATION S. Renis,lues,interest and other expenses ol'ltie property to ba pealed as ol'iho dab of reeordatsat of tau dad Serenity tkpos to advarct rrohalt a Considerations Irrvolving future kaus credits than be credited to Putehaser. 0. CLOSING, On a beton........ ...or within...90...days noon acceptanu,whichevtl is user,both pinks sell deposit with in authorized escrow holder all b.nds and•nttn,runts neeetuty to eompiate IM tab In accordance with the forms Wool. Thataalter any party,including Agent,may divs"4 the tarmt of sale The npiasentationt and wananlus herein shalt no M joirrJ clad by convtyanco of the property.Eauow lee to ba paid by .. ..Bssyer..............:............. A. OCCUPANCY. Puuasslas than be delivered to Purchaser(ehsick siItl»r Item 111 or 121): ® 1. Upon iownsation of IN deed d 2. Allot raordai but Pal Nan midnghl of........................ Unless Stilet has vualed the pprxnisr:s prior to lewrdabarc Soler snag pay Purchaser da Iran newdalean to dale of possession and luvf n etuow,a sum equal to the oboe pr dem amoral m flpbed by the number of days beat data of cbury to data ak7w.d for delivery of porsussion Said tun to be diabsrsed to'uya persons entitled Pmrott on the data pasass,an it ddnaed S. EVIDENCE OF TITLE in IM term olla a olky of Gtk In usWre,[3 OVW:.......................... to be pard la M .Buyer o. EXAMINATION OF TITLE.Flttisen(15)days Iron date of aceePunce[ferrel ere allowed the Purchaser to esamlrc the lilk to the peoptrty and to Lnpmt,n aiding any viW objections therele, Any eiCeptrons to the title which would be driclosed by eaami aton of the records shall be deenkdlo-.ha"been accepted unless reported will,rq rnthn lad 15 days.It Pwchasen Dlttls to any eaeeph o.0 to the title.Sayer shall iiia dw diligence to ntmov:sac h eacephons at his own t,pense beret close of e5OL" But d such:taceplom cannot be iemwod bdoie close of escrow,all rlohls u4 oblpations Ieteuncies nay,it Ilse etett,Dn of she ILrchuser,terminale and e+d.aro the deposit shall It relurrsed to PwCfater,unless he ele-cls to purchase the property"*I to such eaceplions T. EI(CUMEIRANC ES. In adldnn to any encumbrances ttlened to herein,Purchaser they Ukt[file to IN populy tubrtd to III Alai Esult tats nos i<!alt Ind 12)Cavenanll.cadilrau.restrictions,rrghls-ol-way And aasementi N record,It any,which do not-malenarty affect ukj value Of Wended Use on the ppc(kny Ire a:c�taol anybondaafsesi"Alwh,chisalion stuff be0pald,13Atsumedby......buyer..(no" currently exlata) B. FIXTURES. Alt items peimanerll)y atlantad to Ile properly including aluctsed Iloee coverings.drapaneswilt.nardvlra.shades,bhrds,wi kl;w and do $,,tens slam sash,combinal,on doors,awnngs,light Itstunes,TV antennas,elocloc garage door operena,outdoor plants,and Neat.are kxlWad lice of bens g. PERSONAL PROPERTY. The fouowng pelsonal popxrly, on tax premises *even lnspocled by Puich.Iwt, to inckdod in Irk purchase pact aro snap u garulerred to Purchaser by a 1Yarranly 8,11 of Sate &I close of escrow.No winsnly is homed at to she comilion ol sad property:...lian e .... .... ................................................. ....... 10. MAINTENANCE. Seller covenants that the healing.air-conditioning lit any),elKlh[al.sewer,duinage.sprinkler to anyl and plurtw.ng syslvYj mcl„a,N re..her Matti,is stn as bu,tl-vt appliances and oinel rtXchameal apparatus Start W In normal workup order on she date occupan:y is detiveitd Scher snac itpact in,sacred ce broken plass vvltwl m wrmn.t minrss ah»wer ark stat erciusuai UnlN orcLyarr:!.dallvwad Saler Vua rrumtarn a dSliry undscap.rrg"ryonss ani m"(d any) ,plowing Items ane specilsca)ly excluded Ivan she above: .:...,None NOTICES. Of acceptance tsertol.Seller waraanls that he tus no notiu of viouuons relairng to tau propzn,',from City.Carly.or Slate a';'fncies 12. PROVISIONS ON THE REVERSE SIDE. The provisions chocked below ata Included in Ihrs agreement on the reverse side A Pest Control Irvsp.paid by I............ ....F. City tad County Inspeelsons ....!_ VA Appraisal Cause B. Exsslvv Nit Conti.Uniport dalad G Condornlrlsrrn Div-buss L FHA Appraisal Cuuu By ............................... if. Notre Protection Contsatt paid ►f. Smoke 0eteclas.p(cAW by ... .. C. As it,but usbrcl to Buyers approval Dy................................ ....N. Flood Nuard 2.one 0. vhivcr of Pest Contlot Inspection ....I. fvlalnlefWTA Reserve of ryS ............. ....G. Ccntinwl upon the sale of..... .... E. Pool Inspowon ....J. Inspection of Phytical Condition ........................ 13, ACCESS TO PROPERTY, Seller agrees to provide(eaSOnable accost to the property to Purchaser,inspectors and appratuns tepiewntirg Purchase: 14, DEFAULT, In IN evenl that Purchaser Yue)detalm in Ina pedanunca of We Aoneemenl,uNtss Nu pubes have agreed to aprovlsion ly liquidised damages.Saver mayy,subject to any rights of IN agent tvrirein,retain Purehawt's deposit on account of damages sutlained and awy lake u,ch action it he deems appeoptule to tutKi sun addllonal damages as may have teen actually sustained,and Purchaser%hull have the right to lake such action as he deems appropiale to recover such portion of Ire cepes,t is may be a)lowad by law In The even[that Purchaser shall so default,unless Pwdtaser and Seller have agreed to hquidaled danages,Purchaser agrees to pay to tri twostes enblled lWeto such corrvnisslons as would be payable by Seller in rte absence of such default Puchaser's obtrgalon Io sad brokers shall be n xUd,cn to any tgts*ti,ch sad bickers may rave against Sdkt in IN event of delaull.In the event legal action is insblutnd try IN bicker a any pall I to vas agreement to eNoice the terns,or Ions agltemenl,Of ansinq out of Ue euculicin 01 this igeec" l or the safe,or to collect cortrnit_siorss,the prevailing party"ilf be entirbd to receive Iran use oukr patty a seasonable allorrty K to be detarminal by the cart in wlsich such action Is brwght. 15. EXPIRATION. This Mer Quit e.prna unless A copy hereof with Saudi'$written accepursci is deliventd to`Pw"iv or NS Agent within .II/A .. Bays lo. TIME. Tine is of the at W"of Nis agreement. 17. Addltlorul TERMS and CONDI-TIONS: _ _1. A� ash to Sel ler nr rLosn of e irro s rnnybpliy is giy�_mplpy—thAr_mmnsantA 1n min rP than S?5 nn nor cq Lc_�ppr of 1. rid. iii2ii ihs�j1..11L.t_Ilul`_1;.y1„l1C_tlLs:_..�t1Ls:_l�ti5c fliGc siciGili c(1AAI be eil�shyLeSLL1L..1r11.t:_C`GIl::. Same ampunt.. 4..�Owne_�halLns_b� requlr�ti to vaGalt� shy_Q�>orise .QLktez_thatLtiuLtng�he�nuc s t� Ably and AuyLt. Tho und.r igned Purchaaai has read hath sldae of this agnoemenl and acknowledges r*cotpt of a ropy honor. Poichuu ackno-Lng.a further Thal he has not rocaived or rolled upon any ovalipmonts or npr%eon Latkons by the undenlgn►d Agent which are not h•nln ucr••••:. ...................I........................... it"Eslile Company MTED:....I..................... TWE:.. ..... By......................................................... Awl ......................................... .... ......... P�ctaser Broker's Intials: ... .............. Dated: ...................... ........ P.rehaser ........... . ..... ACCEPTANCE StNt aceepls Ilk Iutp rig ollet and agrees to tail the heriin deseribad properly for the piu and on Irk terms Aril cond-snns fsertin specd ed ,-COLIMISSION. Semen hereby aottes to pay to ...Tbe..For.ell.aRi..CAIDRany.....................................Dk Bruin In this unwell,., Cash Iron psxtcds at close o)escrow,lot ianicat tendered: ...SIX,Pl%17AeAC...(bX).of.rbr,.RurchaAc..Price .... ......... ,n the event Inas Purchaser delaulls and lails to complete Ile salt,IM Bioleer slid be entitled to receive one-half of Purcha:tfs deposit,but not mvt than the ecnm•sson earned,without pyudice to 8rokefs i:ohls to rtcovet the balance of the commission Isom Purchaser.The mutual tesefssicvn of lhis'aguement by Psxchaser and Stutr shin rot ieikva sad panics of Nein oblipalions to Bracer hereunder.frit agreement thull not bmll 0w rppMs of Broker prgvidod for in Any tilling or other igieeastnt.n ch may b in anecl blwaen Sesser and Brpken,auept Nal the amount Of the corrmisston stall bit u ganlied haraln - The ursdetelgr»d WW(hors-by►cfuwwsMpea t,.oaapt of•oopy tvatrof. DATED:.............. ............ TIME:.................. ...... .............................:................. A"Estate Catipany ........................................................ .. Sauer By.............................................................. ........................... .. Seuet iORa 1o1 lllis a tonin.,t tPier rt""Its+oaALhA'1$A'KcW. to MX04" tf„,.4u4CAaNaa ALL a.enn K rets MO"T34io" 7wal3.a,et 0001 IYTIe 4 r OPTION AGREEMENT Preamble This Agreement made this day of 1989 at Walnut Creek, California , by Genevieve M. Maloney, as Trustee for the Genevieve M. Maloney Survivor' s Trust , as to an undivided one-half interest , and GENEVIEVE 1•1. MALONEY , as Trustee for the ` Edward S . Malone Residual Trust , i as to an undivided one--half interest , hereinafter collectively referred to as "Optionor ," and Parkford Management Co. , Inc . , a California Corporation , hereinafter referred to as "Optionee ." Recitals WHEREAS , Optionor is the owner of certain real property situated in Contra Costa County, hereinafter Toferred to as "the Property," commonly known as 3146 Buskirk Avenue , Walnut Creek, California , and more particularly described in Exhibit "A" Which is attached hereto and by this reference made a part hereof; and MIER.EAS , Optionor desires to grant and Optionee desires . to acquire the exclusive right to purchase , without becoming obligated to purchase , the property nt an agreed price and under specified teens and conditions; NOW THEREFORE, it in agreed as follows : Crant of 'Option 1 . Optionor hereby grants to Optionee the exclusive right to purchase the Property af. a price and under the terms and conditions set forth herein . t 1 EXHIBIT Option Period 2. This option shall commence on the day of 1989 at and continue until the �j� " day of �'� , 1989 at unless .�" �.__ extended as herein provided for. Consideration 3 . This option is granted in consideration of Opi.ionee' s payment to Optionor of the sum of $ 1 ,000.00 payable in cash or by Optionee' s check drawn to the order of Optionor, subject to collection, receipt of which is hereby acknowledged . Application of Consideration to Purchase Price 4 . If this option is exercised in accordance with its terms , then credit shall be given to Optionee for the coni;ideration paid Optionor by Optionee for this option against the purchase price. Retention of Consideration 5 . In the event this option is not exercised , all. sums paid to Optionor by Optionee shall be retained by 0pti.onor in consideration of the grantfrig of Chiu option. Exercise of Option 6. At any time prior to the expiration of this option or of any extension hereof , Optionee may exercise this option by execution and tender to Optionor of an instrument in the form of Exhibit "B" attached hereto and by this reference made a part hereof. Optionor 2 shall then imrr,ediately execute and deliver to Optionee an executed copy of the instrument . Automatic Termination 7 . If Optionee fails to exercise this option in nceordance with its terms and within the option period, then this option and the rights of Optionee , shall automatically and immediately terminate without notice. Thereafter, Optionee shall properly execute , acknowledge , and deliver to Optionor within 30 days of request therefore , a quitclaim deed or such other document as reasonable may be required by a title insurance company to verify the te)-minntion of this Agreement . Disclosure 88 Optionor hereby understands and acknowledges that (i) the Bole shareholder of both The Fordiani Co. and Parkford Management Co. , Inc . is Richard R. Fordiani, (ii) Parkford Management Co. , Inc. is . acquiring other options to purchase real property adjacent to and . in the area of the Property (the "Assembled Property") , for tha purpose of developing the Property and the Asaembled 'Property, (iii) Parkford Management Co.., Inc., and/or Richard ft . Fordiani , individually , intend to develop or to enter into a joint venture , partnership or other business entity with other persons or entities to develop the Property and the Assembled Property or alternatively to sell the Property and the Assembled Property. 3 Assignability of Option 9. Optionee may, at its sole discretion, assign this Agreement. Optionor' s Representations and Warranties 10. Optionor represents and warrants that there are no leases or tenancy agreements which have terms longer than thirty (30.) days or which have a termination notice provision longer than thirty (30) days . Optionor is fully aware that Optionee is relying on these representations and warrants as a material inducement for entering into this Agreement and hereby agrees to indemnify and hold Optionee harmless from and against any and all. claims , demands, losses , damages , liabilities, lawsuits and other proceedings , judgments and awards and costa and expenses (including but not limited to reasonable attorney' s fees) that it: may suffer as a result of any inaccurancy (which term include!i misleading, deceptive and incomplete statements) in the statements certified in this paragraph.' New Lease or Tenancy AgreementE; 11 . Optionor ngreea not to enter into any leas;> or- tenancy agreement which has a term longer than thirty (30) days or with a termination notice provision longer than thirty (30) days during the pendency of this Agreement . 4 • Notices 12 . Unless otherwise provided herein, any notice, tender, or delivery to be given hereunder by either party to the other may be effected by personal delivery in writing or by registered or certified mail, postage prepaid ,. return receipt requested , and shall be deemed communicated as of 72 hours from mailing. Mailed notices shall be addressed as , set forth below, but each party may change his nddress by written notice in accordance with this paragraph. To Optionor : Genevieve M. Maloney; Trustee 3227 Burton Court Lafayette, CA To Optionee : Parkford Management Co. , Inc. 1660 Olympic Blvd. , Suite 211 Walnut Creek, CA 94596 Entire Agreement 13. This instrument contains the entire Agreement between the parties relating to the option herein granted. Any oral representations cr medificntion5 concerning this instrument shall be of no force and. effect excepting a subsequent modification in writing , signed by the party to be charged . Attorney ' s Fees 14 . In the event of any controversy , claim, or dispute between the parties hereto , arising out of or relating to this Agreement or tie breach thereof, the prevailing party shall be entitled , in addition to such other relief as my be granted , to a reasonable sum as and 5 A for attorney' s fees in such litigation which shall be determined by the court in such litigation or in a separate action brought for that purpose. Binding Effect 15 . This Agreement small bind and inure to the benefit of the respective heirs , personal representatives, ,successors , and assigns of the parties hereto. Execution IN WITidESS WHEREOF, the parties hereto have executed this Option Agreement the day and year first above written. OPTIONOR Ip al I o Cenevievd M. aloney Trustee Dade Time OPTIONEE F'a� ford Management/Co. , Inc . Date. Time by, Richard R. Fordiani , President i 6 :DDENDUM. iht following audenOws 41 lana disc, 3:4—d ai.0 e.uci.ui i.cn a is i.ItiaJw i.t li.:: a tcu.u.i.«aauu•..,. i.t.... ...... A dt, m:10... . Other;-............ ...'............................................................................................................................._.........._..................,.................._...._..—............ ............_................................ ENCUMBRANCES. In !ddilion to,any encumbrances relertrd to above, Purchases shall lake title to The properly subject to: IT Rcal islalt Tutt not yet dut and 11 Covenants,conditions,rtslriclions,righis of way and tatemenis of record, if any, which do not materially affect the value,or intended fest of the property. the amount of any bond or assessment which is a lien shall be t]paid.Elrissumed by....-4uyC.L....(I)Q4C._cUCXei1G:I .._..... ... ..... EXAMINATION OF TITLE. 15 lhffeenT days from dale of acceptance hereof lea allowed The Purchaser to examine the title to the properly and to ropptl in ..ailing any valid objections theseto.Any exceptions to the title which would be disclosed by eaaminalion of the soloists s'rall be deemed to have boxes aectitIO unless reported in wrilinR within said 15 d.sys. if Purchaser objects to am exceptions to the title, Seller 'shill use due diligence to remove such exceptions it hit own expense btlate Close of Esuow. But it'such exceptions cannot be removed before Close of Escrow, all rights and'otdigalions hereunder essay, It the election of Int PUrxhaftr, terminate and end, and lire deposit shall be,, retained to Purchaser,unless he elecls to purchase the proptili subject to such ttctpl ons, fEVIDENCE OF TITLE is the form of M a policy,of Title insurance. ❑other:.........................:......... to be paid lot by..._ .Bii)Jet... .. CLOSING. Within 90 days Irons accenlance both Oatlies shall deposit with an atelleorired escrow holder all funds and.essliuments ntcessasi to ccmpltlt s't silt in liccordance wd the Itims hettol. lhncatilet, aey parly, including Agent, may disclose The items of sale. DEPOSIT INCREASE. The deposit shall be incte sed to S 10,DOQ.00..........,.Within ... 30... days from acceptan•ie, in lite form of. edsll POSSESSION. Possession shall be deliveled to Purchaser: 0Urcn recordation of tht dtcd: ❑Aller recordation,but nhl later than midnight of RISK OF LOSS.Any rill at lost to Use ptaperty shalt be boine'by the Seller until Title his been conveyed to lite Purclsase'. PAOAATIONS. Rents. fires, p.rmiuors on insurance accthlable fa Purchaser, interest and other expenses of the ptoptly to be praaaled as of recotetali;- of detd. Security deposds, adeaoce rental& Ot considerations involving Iulcee lean credits shall be credited to Purchaser. NOTICES. 81 acceptance hetecf, SPllet waranis Thal he has no rofice of violations relating to the properly,from City,County at Stale agencies. DEFAULT. In Ute event that Purchaser fads to pay Ute balance of the purchase price,or to canpitte I1rd purchase as hese,n picirded.Seller may, subeetl la a-a siee'ts of the Agent herein, retain 311 amounts pard hetcundct as damlges Ins the breach of this agretmenl by Puichrsg•r;provided, however, Ilial Stltrr may lake such atl.on as he Ceerns appropriate to collect such additional damages at may have been actually sustained, and that Putchaset shall have the tight to life su;h action as r,c decent appropriate 10 recover such potl+an of lite amounts paid hereunder as may be allowed by law. In she event that Puichas?f shall so default, Purchaser agsrts to Day to the brokers enldled Ihurlo such crnuorssions as would be payable by Seller in the absence of such default. Putchasti's obligation to said broAers shall be in a_drtion to iii, eights which said beaters mat leave against Seiler in the event at default. In the event legal action is insliluted by any party to this agteernenl•to enforce the teems of this agrtewtAl,or arising out of lite eteculroo of Ihis agieement or the sale, the prevailing party shall be tniitltd to its:6 t team the office p)ssj a rusonac't attorney lie to be determined by the"court in which such action is brought: PROVISIONS ON THE REVERSE SIDE,The provisions printed en the reverse side hereof which ate iniflaNd below by Purchaser arc included in this a�tee.nenl 1.INCOME AND EXPENSE STATEMENT' 1.CHANGES DURING TRANSAMOH S,OPERATING PERMIT 2.EXISTING LEASES 4,PERSONAL PROPERTY IF FURNISHED INi:OMC UNITS L.PERMIT OF OCCUPANCY ........1.CONTINGENCY RELEASE CLAUSE. Subject to safe of Purchaser's real property commonly known as .............. .... ...... .. .. . ................... ... ... ........ EXPIRATION, This Ditto shalt tspite unless a copy hereat with Seller's written acceptance is.delivered to Put(haste of leis Agent within.. ... ...dayt from dale. TIME.lime is of the essence of this ag(eement. The"undutlgned Purchater hereby acknowledgtt reeelpl at a copy hereof and acknawltelgers further that he hot not rettivtd or rtlitd upon any sleaftemtnit or repr-osenlollont by the underslgnr'd Agenf, wIxIck-or• 11of kerolr xxxpretted, Including any sialrmen&t or respe'erenlollonr regardlny Iles, •fleet of this trontocilae upon pur[kater's tale liability, ...........Agent DATED:.......-........... .................. . . . ._............... By ............... .............................. _ ....__..... ......_,..._..................,.._._:.._........................_.........,.. ..... _.. Flrchaset ...-..._....-._.__.Uroker Purchsstr ACCEPTANCE The undtssiyced Seller accepts The foiegninR offer and aP)tet to felt the herein dtsctibed properly for The price and on the Items and condiliocs herein stet:htd includ is t e _s an Ire revCtsc Iide initiated abave Cy Purchaser. COMMISSION, Seller hereby agrees to nay to The Ford laiii Company flit A,eni in this !eans)chon.s:)l(6) at the'sale'ftice for seniles rtndeted. in the evenl�lhat Purchaser defauils and failt to complete the sale,the ARrnl shall be enlisted ler tece..e one hili of 7wchaser's deposit. but not most than the commission earned. wiihoul petiudaq to AReni's iiphls to recover the balance of the commission Isom Pmihase• The mulur. rtscission of No agreemtni by Purchaser and Seller shall nor relieve said Dailies of their oblagallons to Ageni lecrrundte. In she went legal action is m 6fuled ID :Dwelt this commission, cr any poi lion Ilitreoi. Sti agrees to pay the Agent such additional sum is [tie couit may adjudge et a tone tie hof allotney fees This'agreemr-^e shall nnl limit the tiehls of Agent provided lot in any titling or o+her agrttmenl which may be in tilecl between Sejicr and Lgenl, .!,ctpI Iltal flee amount of the com.-..stion shall be as specified herein. The undtnignrd Seller hereby acknowledgtt receipl of a copy h'e-ool, DA TT D:......._.......... ... TIME .....,..... ___.._..._.._......_.............:............................................AEenl �.. _.. ........ ._..,.... ..._ Srllet ` nor taovx By...... _ ....... ..... . .. . _...., _.._._ . . ........ _.. .. Sclier Na- wroaii aonsasos.c sta.vee E>c,. .... .a.... . ...,..,„,re a..u.o..a...w...... .....o w. )Of l i ,.. 3tt �O tzn V uj ul r k n W �4 `v o ,4 1 0 11tL �+ cd 4-4 z a � x a 0 J w O ) C1 M ro j Q Z a Ln Lr) o p {xJ z 0 � U N w a - Q U _ Q} a mC O1 44NU w Q � Q) Hll Z ro N ° U) � -�U w -P �4 o to td P I _ j .-t t.