judge laurel s. brady misconduct contra costa county - receiver kevin singer unauthorized practice...

1 KEVIN SINGER SUPERIOR COURT RECEIVER/REFEREE

2 RECEIVERSHIP SPECIALISTS 795 Folsom Street, 1st Floor

3 San Francisco, California 94107 Telephone: (415) 848-2984

4 Fax: (415) 848-2301 E-mail: [email protected]

5 Property Address:

6 4655-4677 Meade Street Richmond, CA 94804

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SUPERIOR'COURT OF THE STATE OF CALIFORNIA

COUNTY OF CONTRA COSTA I

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CERF SPVI, LLC, a Delaware limited liability) company, ·

)

Plaintiff,

v.

) ) ) ) )

CHEROKEE SThIBON VENTURE I, LLC; a )

Delaware limited liability company, � PIONEER HI-BRED INTERNATIONAL, ) INC., an Iowa corporation, LUMIPHORE ) INC., a Delaware corporation, GERONOV A ) RESEARCH, Inc., a Nevada corporation, ) NANOASIS TECHNOLOGIES, INC., a )

California corporation, CHEMORAGA, INC., )

a California corporation and DOES 1-50, � inclusive, )

Defendants. ) ) ) )

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CASE NO: C12-00284

NOTICE OF MOTION AND MOTION FOR ORDER AUTHORIZING RECEIVER TO RETAIN LEGAL COUNSEL; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF KEVIN SINGER IN SUPPORT THEREOF.

�=: l�d�,,� Dept.: 31 Wk Judge: Hon. Laurel S. Brady

Martinez Superior Court 725 Court Street Martinez, CA 94553

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RECEIVER'S MOTION TO RETAIN LEGAL COUNSEL

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TO: THE PLANTIFFS, DEFENDANT AND THEIR RESPECTIVE ATTORNEYS OF

RECORD:

PLEASE TAKE NOTICE THAT on 2012 at the hour of ��

4 • or as soon thereafter as the matter can be heard in Department 31, at the

5 Martinez Superior Courthouse at 725 Court Street, Martinez, CA 94553, Superior Court

6 Receiver, Kevin Singer, will and does hereby move the Court to grant his NOTICE OF

7 MOTION AND MOTION FOR ORDER AUTHORIZING RECEIVER TO RETAIN LEGAL

8 COUNSEL; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION

9 OF KEVIN SINGER IN SUPPORT THEREOF. This Motion is based on this Notice of

10 Motion, Memorandum of Points and Authorities, Declaration of Kevin Singer, pleadings,

11 records and files in this action, and oral and documentary evidence as may be presented at the

12 hearing on this Motion.

13 DATED: September 10, 2012

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By: Kevin Singer Superior Court &

RECEIVER'S .MOTION TO RETAIN LEGAL COUNSEL

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1 INTRODUCTION

2 1. Through a stipulation amongst CERF SPVI, LLC, a Delaware limited liability

3 company ("Plaintiff"), and CHEROKE SIMEON VENTURE I, LLC ("Defendant"),

4 collectively (''the Parties"), the Court granted an Order Appointing Receiver Ex Parte and

5 Temporary Restraining Order In Aid of Receiver ("Court Order") which was entered on July

6 12, 2012 and attached hereto as "Exhibit 1." The appointed Superior Court Receiver, Kevin

7 Singer's ("Receiver") Oath was filed on approximately July 12, 2012, by Plaintiff's Counsel

8 and management of the Property was transitioned to him on August 15\ 2012. This was an

9 agreed upon transition date by the Parties.

10 2. The collateral for Plaintiff's Deed of Trust is a commercial and industrial building

11 located at 4655·4677 Meade Street, Richmond, CA 94894 (the "Property"). The Property is

12 commonly referred to as Campus Bay. The Property has a long history of chemical

13 manufactures using the site. In 1997, an environmental cleanup was initiated under the

14 oversight of the San Francisco Bay Regional Water Quality Control Board. Attached as

15 "Exhibit 2," is information summarizing the environmental issues surrounding the Property.

16 3. One of Receiver's primary duties is to lease or release the Property or any

1 7 portion of it on terms acceptable to Plaintiff. Any lease contract entered into will require

18 disclosers regarding the environmental issues.

19 4. On August 8, 2012 and August 9, 2012, the Receiver had a disagreement with

20 Defendant's legal counsel over the ability of Defendant to collect past due rents from the

21 tenants. Defendant's legal counsel was properly representing her client, respectful to the

22 Receiver, and came to an amicable resolution with the Receiver regarding the collection of past

23 due rent, but there remains a disagreement in between the Receiver and Defendant's legal

24 counsel the interpretation of the Court Order.

25 5. Although the Receiver has the ability to write basic pleadings and file papers with

26 the Court, he is not an attorney. The Receiver is also not an expert in legal environmental

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disclosures that will need to be provided to tenants. The Receiver also seeks help from time to

time in interpreting the Court's Order and working with the Parties' legal counsels.

POINTS AND AUTHORITIES IN SUPPORT OF RECEIVER RETAINING COUNSEL

California Rules of Court 3.1180. Employment of attorney

A receiver must not employ an attorney without the approval of the court. The

application for approval to employ an attorney must be in writing and must state:

(1) The necessity for the employment;

(2) The name of the attorney whom the receiver proposes to employ; and

(3) That the attorney is not the attorney for, associated with, nor employed by an

attorney for any party.

The Court Order instructs the Receiver as follows (See "Exhibit 1"):

8a.) Receiver shall have the power to take any and all lawful actions necessary to

preserve, protect, maintain, and operate the Property .......... ;

8e.) Receiver is authorized to employ and compensate professionals, including

property managers, accountants, and other persons and professionals as Receiver

deems appropriate to effectuate the operation of the Property and to preserve and

protect the Property;

12) Receiver, or any party to this action, may from time to time, make application to

this Court for further orders instructing Receiver.

THE RECEIVER'S REQUEST TO RETAIN LEGAL COUNSEL

The Receiver needs to retain legal counsel for the limited purpose of advising the

Receivership Estate on the proper way to disclose environmental issues to new tenants to limit

the liability of the Receivership Estate. The legal counsel retained by Receiver can also advise

the Receivership Estate on interpretation of the Court Order when the Parties are in

disagreement as to its interpretation.

The Receiver would like to retain Mia Blackler ("Ms. Blackler") and Manuel

Fishman ("Mr. Fishman") of Buchalter Nemer. Ms. Blackler is an expert in receivership law


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and Mr. Fishman is an expert in commercial lease contracts and environmental issues. Their

billing rates are $440 for Ms. Blackler and $495 per hour for Mr. Fishman and they utilize the

assistance of associates whose billing rates are $300 to $350 per hour. Attached as "Exhibit

3," are their bios.

WHEREFORE, The Receiver requests that the Court grant the following:

1. The Superior Court Receiver, Kevin Singer, is authorized to retain Mia Blackler and

Manuel Fishman to advise him on any lease negotiations, disclosure issues related to the le.ase

negotiations and/or contracts, and guidance on interpretation of the Court Order.

2. For such other relief as the Court may deem just and appropriate.

DATED: September 10, 2012

Respectfully submitted,

By: ks Kevin Singer Superior Co


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1 DECLARATION OF KEVIN SINGER

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I, KEVIN SINGER declare and state as follows:

I am a Superior Court Referee and Referee and have acted in that capacity in over 143

cases over the last eleven years. I am the President of Receivership Specialists, which

specializes in Receivership and Referee appointments. If called upon to testify, I could and

would competently do so as to the matters hereinafter set forth based on firsthand knowledge.

I submit this Declaration in support of the accompanying NOTICE OF MOTION AND

MOTION FOR ORDER AUTHORIZING RECEIVER TO RETAIN LEGAL COUNSEL;

MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF KEVIN

SINGER IN SUPPORT THEREOF;

Through a stipulation amongst CERF SPVI, LLC, a Delaware limited liability company

("Plaintiff'), and CHEROKE SIMEON VENTURE I, LLC ("Defendant"), collectively (''the

Parties"), the Court granted an Order Appointing Receiver Ex Parte and Temporary

Restraining Order In Aid of Receiver ("Court Order") which was entered on July 12, 2012. In

the Court Order, I was appointed Superior Court Receiver. The parties agreed that the property

located at 4655-4677 Meade Street, Richmond, CA 94894 (the "Property") was to be

transitioned to my control on August 1, 2012.

2. The Property serves as collateral for Plaintiff's Deed of Trust and is a commercial

and industrial building commonly referred to as Campus Bay. The Property has a long history

of chemical manufactures using the site. In 1997, an environmental cleanup was initiated under

the oversight of the San Francisco Bay Regional Water Quality Control Board.

3. One of my primary responsibilities is to lease or release the Property or any portion

of it on terms acceptable to Plaintiff. Any lease contract I have entered into will require

disclosers regarding the environmental issues.

4. On August 8, 2012 and August 9, 2012, I had a disagreement with Defendant's

legal counsel over the ability of Defendant to collect past due rents from the tenants at the

Property. Defendant's legal counsel was properly representing her client, respectful to me, and


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Dena M. Cruz (CA State Bar No. 121508) 1 Richard Mooney (CA State Bar No. 176486)

2 Leena Rege (CA.State Bar No. 236827) DRY.AN CA vE, LLP

3 560 Mission Street, 25th Floor San Francisco, CA. 94105 · 4 Telephone: (415)268;,2000.

5 Facsimile: (415) 268•1999

6 Attomeys for Plaintiff

7 CERF SPVI, LLC

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SUPERIOR COURT OF CALIFORNIA

COUNTY OF CONTRA COSTA

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CERF SPVI, LLC a Delaware limited liability company

Plaintiff,

v.

CHEROKEE SIMEON VENTURE I, LLC; a Delaware limited liability company, PIONEER ID-BRED INTERNATIONAL, INC., an Iowa corporation, LUMIPHORE INC., a Delaware corporation, OERONOVA RESEARCH, Inc., a Nevada corporation, NANOASIS TECHNOLOGIBS, INC., a California corporation, CHBMORAGA, INC., a California corporation and DOES 1-50, inclusive,

Defendants.

CASE NO.: CIV C12-00284

1. [PldJl"tJili!D] ORDER APPOINTING RECEIVER EX PARTE

2. (P�D] TEMPORARY �TRAINING ORDER IN AID OF

RECEIVER

(Ex Parte Application, Stipulation to Entry of Order Appointing a Receiver and Preliminary Injunction, Declaration of Edward Elanjian, Declaration of Kevin Singer, Declaration of Dena M. Cruz, and Oath of Receiver filed concurrently herewith)

Date: July 12, 2012 Time: 1 :30 p.m. Dept.: 60

[PROPOSBPJ ORDER Al':POIN'l'ING RBCBIVBREX PARTE AND TRO CERF SPVI, LLC va. Cherokee Simeon Venture I, LLC.

Contra Costa SUperior Case No. Cl2-00284

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1 The motion of Plaintiff CERF SPV I, LLC ("Plaintiff'), for an ex parte order appointlng a

2 receiver and for the issuance of a Preliminary Injunction came on for hearing in Department 60 of

3 this Court on July 12, 2012 at 1 :30 p.m .. Plaintiff appeared by and through its counsel, Dena M.

4 Cruz; defendant Cherokee Simeon Venture I, LLC (''CSV'') appeared by and through its counsel,

5 Larisa A. Meisenheimer.

6 Having read and considered the moving papers, pleadings, and evidence in this matter;

7 having heard argument of counsel; and being apprised of the premises; it appearing to the Court that:

8 A. On or about September 6, 2007, Continental Environmental Redevelopment Financial,

9 LLC (''CERF'') entered into a Loan and Security Agreement (the "2007 Loan

10 Agreement") and certain related documents, agreements and ins1nments, as lender, with

11 CSV, as borrower, to fund, amongst other things, a portion of the cost to remediate

12 certain real property located in Contra Costa County, CA, commonly known as Campus

13 Bay ("Campus Bay'').

14 B. Plaintiff is the holder of a promissory note dated September 6, 2007, executed by CSV as

15 borrower (the ''Note").

16 C. The Note is secured by a deed of 1rust of even date (the ''Deed of Trust'') executed by

17 CSV in favor of CERF, which Note and Deed of Trust were assigned to Plaintiff on or

18 about September 6, 2007. A copy of the Deed of Trust is attached to the Declaration of

19 EdwardElanjian (''ElanjianDecl.") as ExhibitB.

20 D. The Deed of Trust is a lien on the title to Campus Bay (the "Property''). A copy of the

21 Deed of Trust, which contains a legal description of the Property is attached to the

22 Elanjian Deel. as Exhibit B.

23 E. The Deed of Trust contains a provision whereby all the rents, issues, and profits of the

24 Property are assigned as additional security on the Note and;

25 F. The 2007 Loan Agreement and the Deed of Trust contain certain provisions in which

26 CSV consented to the appointment of a receiver for the Property in the event of default

27 under the Borrowing Agreements; and,

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1 [PROPOSED] ORDER. AP:POINTING RECEIVER BX PARTE AND TRO

CERF SPVI, LLC vs. Cherokee Simeon Venture I, LLC. Contra Costa Superior Case No. Cl2-00284

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l G. Plaintiff alleges in the Complaint filed in this action �Defendant CSV has defaulted on

2 its obligations mderthe 2007 Loan Agreement, Note and Deed of Trust (hereinafter,

3 collectively the �'Borrowing Agreements") in that CSV (i) failed to pay the outstanding

4 principal balance ofth.e loan, all accrued and unpaid interest thereon, and all other sums

5 owing to Plaintiff pursuant to the terms of the Borrowing Agreements which were due

6 and payable on or before September 6, 2010; (ii) failed to pay when due and payable

7 property taxes assessed against the Property; and, (iii) fiiiled to pay premiums for

8 insurance required mder the terms of the Borrowing Agreements;

9 H. Without admitting to or agreeing with Plaintiff's allegations, CSV stipulated on July 11,

10 2012, to the appointment of a receiver and a preliminary injunction.

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12 TIIEREFORE, IT IS HEREBY ORDERED 1HAT:

13 ORDER APPOINTING RECEIVER

14 1. The Court grants Plaintiff's motion for the appointment of a receiver and appoints Kevin

15 Singer as receiver (the "Receiver''}, such appointment to be effective on the filing of Receiver's oath

16 of office. Purswmt to the terms of the Deed of Trust, the Receiver does not need to file an

17 undertaldng or bond.

18 2.

19 3.

Receiver is appointed by this Court to take possession of the Property.

CSV shall surrender possession of the Property to Receiver as of August 1, 2012 (the

20 "Effective Date"), and shall deliver to Receiver all keys, all books and records related to the

21 ownership and maintenance of the Property, checkbooks, ledgers, accomits payable and accounts

22 receivable records, leases, rent rolls, insurance policies and certificates (except as specified in

23 Paragraph 18), executory contracts, plans, specifications and drawings, and all other documents

24 whatsoever related to the ownership and maintenance of the Property (collectively "Books and

25 Records''). Receiver shall take possession and control of all Books and Records, except that

26 Receiver may, in his discretion, choose to leave whatever portions of the Books and Records he

27 decides appropriate in the possession of the. persons possessing the same, provided that Receiver

28 shall have immediate access to these items. Receiver shall retain possession of the Property until the

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#80494 vl saf

[PROPOSED] ORDER APPOlNTJNG RECEIVBREX PARTE AND TRO CERF SP'YI, LLC vs. Cherokee Simeon Venture I, UC.

Contra Costa Superior Case No. C12-00284

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1 earlier of further order of the Court or nonjudicial foreclosure of the Property by Plaintiff and/or its

2 assigns.

3 4. As of the Effective Date, Receiver shall (i) receive and take charge of the Property and all

4 personal property, assets, all rents due and hereinafter due, notes, receivables, actions and choses in

5 action; and, (ii) collect all outstanding accounts, receivables, leases, rents, actions and choses in

6 action, or other evidence of indebtedness and, if need be, bring suit to recover the same in his own

7 name ..

8 5. As of the Effective Date, the tenants in possession of the Property or such other persons as

9 may be· in possession there6f, be and they are hereby directed to (i) attom to Receiver, and until the

10 further order of the Court; (ii) to pay over to Receiver, or its duly designated agent, all rents of the

11 Propez:ty now due and unpaid or hereafter to become due. CSV is hereby enjoined and restrained

12 from collecting the rents of the Property as of the Effective Date; and that all tenants of the Property

13 . and other persons liable for the rents be and they hereby are enjoined and restrained from paying any

14 rent for the Property to CSV, or its managing agent, its officers, directors, employees, agents, or

15 attomeys.

16 6. If CSV should receive any rents or revenues from the Property, on or after Receiver takes

17 possession of the Property, CSV is restrained and enjoined until further order of this Court from

18 disposing of silch rents, issues, profits, and revenues of the Property in any manner, other than by

19 turning over such rents, issues, profits, and revenues to Receiver until further order of this Court;

20 7. Receiver shall be paid fees calculated on an hourly basis, at rates previously provided to

21 Plaintiff, for services performed as receiver for the Property pursuant to invoices Submitted to

22 Plaintiff describing in detail the services perfonned and the hours worked, to be paid as a priority

23 from the rents and revenues of the Property, or otherwise paid by Lender; provided, however, in no

24 event shall Receiver's hourly fee exceed$ 250.00 per hour and $150 per hour for Receiver's support

25 staff;

26 8. Receiver shall be authorized and empowered to, and when required by this Order must, do

27 the following:

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[PROPOSED] ORDER APPOINTING RECEIVER EX PAR'IE AND TRO CERF SPVI, LLC vs. Cherokee Simeon Venture I, LLC.

Contra Costa Superior Case No. Cl2-00284

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1 �i��-��.��·�"��!t'Gftke'�opertjr·oh 2 :: , iBffe�'{F:ll\W,;;�-��I·�fo�. ---

S ··�· The power to possess,

6 manage and operate the Property shall include the power to assume or reject executory contracts,

7 including leases. Except as stated in Paragraph 18 of this Order. the power to possess, manage, and

8 operate shall also include the right to exclude from the Property anyone, including CSV and any

9 persons claiming under or through CSV, who are not in possession of the Property under valid lease

1 O or rental agreements or acting pursuant to an order or authority granted by the Department of Toxic

11 Substances Control ("DTSC'') or other government agency. Receiver shall not be responsible for the

12 operations or management of any bus�ess operated wi1hin the Property, nor, is Receiver required to

13 assure that any required licenses and per.mi.ta applicable to any business currently conducted at or

14 within the Property conform to Califomia state law.

15 (b) Rents and profits: Receiver shall have the right and power to take possession

16 and control of any rents, profits, or income whatsoever generated by the Property ("Rents") after the

17 Effective Date, including any pre-paid Rents and profits, Rents and profits due and owing, and any

18 Rents and profits which become due and owing thereafter on the Effective Date, whether held by

19 CSV, its property managers, tenants, or any other third party. Receiver shall deposit all funds

20 received in an FDIC insured deposit account ("Receivership Account,,). Receiver may receive and

21 endorse checks constituting income from the Property.

22 (c) Management of the Property's Revenues: Receiver shall man.age the daily

23 operations of the Property and collect and hold all Rents, profits and other revenues generated by the

24 use and occupancy of the Property in the Receivership Account for which the authorized signatory

25 shall be Receiver and, at Receiver's option, designated agents ofReceiver. Receiver shall pay the

26 noimal, ordinary, and necessary operating expenses of the Property from the rents and other

27 revenues collected from the Property, subject to the limitations set forth in paragraph numbered 8G)

28 below; otherwise, such costs shall be paid by Plaintiff following Receiver's delivery to Plaintiff of

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4 [PROPOSED] ORDBR. APPOINTING RECEIVER EX PAR.TB ANDTRO

CERF SPYJ, LLC vs. Cherokee Simeon Venture 1, LLC. Contra Costa Superior Case No. Cl2-00284

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1 invoices describing such expenses in detail. All Rents, profits and revenue generated by the use and

2 occupancy of the Property shall be applied first to the payment of Operating Expenses. Operating

3 Expenses shall include, without limitation, insurance, maintenance and repairs, utilities, payroll,

4 administration, refunds of security deposits, real property taxes, and assessments. Operating

5 Expenses shall not include, and Receiver shall not pay without further order of this Court or

6 Plaintiff's written consent: (i) any alleged obligations owed to CSV, its agents, assigns, or to any

7 entity, person, partnership or cotporation owned, in whole or in part, by, related to, or otherwise

8 affiliated with CSV, or (ii) any obligations or payments owed, or claimed to be owed, to any junior

9 lien holder. All Rents, profits and revenue generated by the use and occupancy of the Property shall

10 then be applied to other fees, costs or expenses associated with the Property, as permitted by the

11 tenns of this Order.

12 ( d) Protection of the Prqpert;y and Insurance: Receiver shall have the power to,

13 and is· ordered to, protect the Receivership Estate. "Receivership Estate" shall mean the Property,

14 Rents and profits, and other income derived from the Property and assets from any destruction, or

15 waste. Receiver shall determine upon taking possession of the Receivership Estate whether or not

16 there ls sufficient insurance coverage to protect Plaintiff's security interest in the Property. If

17 necessary, Receiver shall attempt to procure sufficient insurance coverage as soon as practicable,

18 provided that the Receivership Estate's funds and required insurance are available. Receiver may

19 maintain existing insurance policies (except the PLL Insurance Policy referenced in Paragraph 17(b)

20 below) and pay any premiums due from available funds of the Receivership Estate. Receiver shall

21 not be persomtlly liable for any insurance claims arising before or after the appointment of a receiver

22 and procuremcmt of sufficient insurance. If insurance is not currently in place and cannot be

· 23 obtained by Receiver, the Court shall be notified within 30 days from the date of this Order.

24 (e) :�iii��illia:eampell$ate 25

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t/80494 vl saf

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s [PROPOSED] ORDBRAPPOINTIN"G RBCBIVBREX PARTE AND TRO

CERF SPVI, LLC. vs. Cherokee Simeon Venture!, LLC. Contra Costa Superior Case No. Cl2-00284

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1 (f) Receiver's Initial Accounting: Within 30 days after the date Receiver's

2 undertaking and Oa1h are filed, Receiver shall file in this action a detailed inventory of all property

3 of the Receivership Estate. Receiver shall also file a supplemental inventory thereof; if necessary.

4 (g) Periodic Accounting: Receiver shall provide periodic statements of account

5 that include a summary of the ootivities of Receiver and any property manager, a schedule of

. 6 receipts and disbursements, a summary of Receiver and its professional' s interim fees and expenses,

7 and other such information as the Court may direct. Receiver sba11 file said accounting with. the

8 Court and shall serve upon Plaintiff's counsel and CSV' s counsel a copy of said accounting.

9 Receiver shall file a final report within 30 days after the termination of the receivership.

. 1 o· (b.) . Authorized Disbursements and Actions. Receiver shall be authorized, in the

11 exercise of Receiver's business judgment, to do, without limitation, the following:

12 (i) Collect past due Rents and profits from tenants or former tenants of the

13 Property, and collect Rents and profits while this Order is in effect;

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15 to P1aintiff;

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18 to the Property.

(ii) Lease or r&-lease the Property or any portion of it on terms acceptable

(iii) Evict tenants;

(iv) As set forth in paragraph 8( c) above, pay Operating Expenses related

19 (v) Incm and pay such other expenses as are reasonably necessary for

20 Receiver to perform his duties;

21 (vi) Retain, in Receiver's discretion, a working capital fund in an amount

22 sufficient for payment of Receivership expenses;

23 (vii) Investigate and evaluate the financial condition and history of the

24 Property in order to determine their value and expenses, provided that such investigation does not

25 substantially increase the costs of the receivership over the compensation provided to Receiver

· 26 · herein without Plaintiff's consent or further order of this Comt;

27 (viii) Investigate and evaluate the Property for the presence of any readily

28 apparent dangerous conditions, hazardous waste, substances or chemicals that is not the subject of

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6 [PROPOSED] ORDER APPOINTING R,BCBIVBREXPARTE ANDTRO

CERFSP"YI, UC vs. Cherokee Simeon Venture[, UC. Contra Costa Superior Case No. Cl2M00284

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1 the JUly 20, 2011 Revised Draft Feasibility Stady and Remedial Action Plan for Lots 1,2, and 3,

2 Campus Bay, Richmond, California ("Draft FSRAP'') or any revision or amendment to same;

3 (ix) Subjeotto the terms of this Order, pay any necessary maintenance

4 required for health and safety reasons, property management fees, including :reimbursement for costs

5 on a monthly basis from the assets now held, or which may be received by, t1re Receivership Estate,

6 subject to.the final review of this Court;

7 (x) Upon request of Pl� Receiver shall tum over to Plaintiff, to be

8 applied toward the indebtedness, any lease proceeds net of (i) Receiver fees and expenses, (ii)

9 Operating Expenses, and (iii) Receiver's working capital fund;

10 (xi) Upon Plaintiff's consent, provide for the payment of all capital

11 improvements to the Property required to bring the Property to good condition and allow the lease of

12 the Property or any portion of the Property. ReCeiver shall first make any emergency capital

13 improvements or repairs which are necessary, in Receiver's business judgment, to protect persons

14 and the Property from serious bodily harm or damage. Receiver shall promptly notify Plaintiff and

1 S CSV of the need, if any, for any emergency capital improvements;

16 (xii) Contest or protest taxes or assessments with respect to the Property;

17 and,

18 {�) Use any federal taxpayer identification numbers relating to the

19 Property for any lawful purpose.

20 (i) General Receivership Powers. In addition to all of the powers set forth above,

21 and subject to any limitations contained in this Order, Receiver is hereby vested with all of the

22 general powers of receivers in cases of this kind, subject to the direction of this Court.

23 (j) Limitations on Receiver's Authority: Except as provided for above, the

24 Receiver shall not, absent the consent of Plaintiff or further order of this Court:

25 (i) Obtain loans, secured or unsecured, on behalf of the Receivership

26 Estate or encumber the Receivership Estate. Notwithstanding this restriction on loans, and as more

27 particularly set forth in paragraph 13 below, Receiver may request loans from Plaintiff at Plaintiff's

28 option and/or election to make any of the repairs and perform any maintenance determined by

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7 [PROPOSBDJ ORDER APPOINTING RBCBIVBR.BX PARTE AND TRO

CERF SPT'l, LLC vs. Cheroke.e Stmeon Venture I, LLC. Contra Costa Superior case No. Cl2�00284

1 Receiver in his business judgment to be necessary to keep the Property in good condition, and any

2 emergency capital improvements or repairs as allowed above. Any and all loans Receiver obtains

3 from Pl� pursuant to this paragraph, shall be: (i) deemed obligatory advances on the

4 indebtedness; (ii) added to the balance due; and (iii) secured by the operative Deed of Trust.

5 (ii) Without the written consent of CSV and Plaintiff, or order of this

6 Court, execute any documents that (i) result in a subdivision of the Property, or (ii) that result in a lot

7 line adjus1m.ent of any portion of the Property;

8 (iii) Without the written consent of CSV and Plaintiff, or order of this

9 Court, sell any portion of the Property.

1 O 9. Receiver shall have no responsibility for filing future federal and state income tax retums

11 (''Tax Retum'') or for dissolution of CSV. The responsibility for such filings lie exclusively with

12 csv.

13 10. Receiver's fees and expenses will be paid monthly from available funds of the Receivership

14 Estate upon ten (10) days notice to the parties. If no written specific objection is provided to

15 Receiver on all fees and expenses submitted; Receiver may pay its invoice and professional fees and

16 expenses owed from available Receivership Estate funds. If an objection is received within the ten

17 day period, Receiver must respond within a reasonable time to the parties with an acceptable

18 explanation. If an agreement cannot be reached, a noticed motion on shortened time will be filed

19 with the Court for approval of the fees and expenses in dispute.

20 11. Any security or other deposits which tenants have paid to CSV, or its agents, over which

21 Receiver has no control, shall be obligations of CSV and may not be refunded by Receiver without

· · 22 an order of this Court or approval of Plaintiff. Any other security or other deposits which tenants

23 have paid or may pay to Receiver, if otherwise refundable under the terms of their leases or

24 agreements with Receiver1 shall be refundable by Receiver in accordance with the leases or

25 agreements.

26 12. .��1.:: .. �.:,�,,,,,:�·�,�-:.�,., ,,_·.·-'- ·' . . ··miime!®fi!�:�p]fti�ontotbisealtti 27 f0f�'OM.ets"�'ll«el.Vtfff0'1f: 28

#804'4 vl aaf

8 [PROPOSED] ORDER APPOINTING RECEIVER EX PARTBANDTRO

CERF SPVJ, LLC vs. Cherokee Simeon Venture I, UC. Contra Costa Superior Case No. C12-00284

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I 13. Receiver is authorized to borrow from Plaintiff such funds as are necessary to perform bis

2 duties as set forth in tbis Order. No obligation on the part of Plaintiff to advance or loan funds to the

3 Receiver shall arise prior to the Receiver's preparation of a budget for management and operation of

4 . the Property, and the approval of said budget by Plaintiff. In any event, Plaintiff shall have no

5 obligation to advance or loan funds to the Receivership Estate except in its sole and absolute

6 ·discretion. In consideration for any such· advance or loan, Receiver is authorized to and sh.all issue

7 to Plaintiff certificates of indebtedness ("Receiver's Certificates"), as evidence of receivership

8 indebtedness for any such advances made by Plaintiff pursuant to this Order. All Receiver's

9 Certificates shall be executed and delivered to Plaintiff by Receiver as a condition to funding, and

· 10 shall be numbered in sequential order for redemption purposes. All indebtedness represented by a

11 Receiver's Certi.fi.cate(s) shall be and constitute a lien and charge upon all assets of the Receivership

12 Estate, and with. respect to such assets and estate.

13 14. In the event that the title to a specific prQPerty and the personal property hereby entrusted to

14 Receiver is transferred by reason of a judicial foreclosure sale or nonjudicial trustee's sale conducted

15 pursuant to the tenns of the Deed of Trust sued upon in this action, Receiver shall immediately "turn

16 over possession and control of the applicable property, together with the Books and Records, and all

17 personal property associated therewith to the new owner upon presentation to Receiver of a certified

18 copy of the deed evidencing such transfer, or upon Order of this Court made upon an ex parte

19 application, which may be presented without Receiver's or counsel's personal appearance.

20 15. Plaintiff and Receiver shall cooperate with CSV and Zen.eca, Inc., to effectuate the remedial

21 aotions described in paragraph 18.

22 PRELIMlNARY INJUNCTION

23 16. IT IS FURTHER ORDERED that CSV, along with any of its trustees, property managers,

24 co-trustees, partners, employees, agents,' representatives, contractors and any other person or entity

25 under their control \'Related Parties") are hereby enjoined and restrained from:

26

27

(a) Committing or permitting waste of the Property;

(b) Removing. transferring or otherwise disposing of the Property or any of its

28 :fixtures and/or incorporated materials;

9 [PROPOSED] ORDER APPOINTING RBCBIVBR BX PAR.TB AND TRO

CERF SPY.I, LLC w. Cherokee Stmeon Venture I, LLC. Contta Costa Superior Case No. Cl2-00284

i#80494vl sat'

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( c) Demandmg, collectin& diverting or receiving any Rents of the Property;

( d) Transferring, moving, selling, leasing or otherwise disposing of any of the

3 personal property and/or improvements located in or around the Property; and,

4 · (e) In any way interfering with the discharge of the Receiver's duties.

5 17. In addition, CSV and Related Parties shall be obligated to do, and shall be restrained from

6 doing, the following:

7

8

9

10

11

(f) Turnover of Books. and Records: Prior to the Effective Date, CSV shall tum

over complete copies of the Books and Records, as defined herein, to Receiver. CSV shall deliver

originals of the Books and Records to Receiver if so requested by the Receiver. CSV shall assist

Receiver in obtaining complete copies of the same in the event the Books and Records are held by

persons or entities other than CSV. CSV shall promptly, upon request by Receiver, furnish to

12 Receiver copies of such other financial infonnation or backup documentation relating to those Books

13 and Records.

14 (g) · Turnover of Insurance Information: CSV shall promptly provide Receiver

15 with the property insurance policies and policy information for the Property. CSV shall make

16 certain that Receiver is named as an additional insured on all applicable policies for the period that

17 Receiver shall be in possession of the Property, except for the Pollution Legal Liability Select Clean-

18 Up Cost Cap Insurance, Policy No. 195 8035 ("PLL Policy") issued by American Intematlonal

19 Specialty Lines Insurance Company, on which the Receiver shall not be named as an additional

20 insured ..

21 18. CSV and Related Parties shall be enjoined and restrained from transfening, appropriating,

22 selling, leasing or otherwise disposing of any of the personal property, fixtures and/or improvements

23 located in and around the properties. In addition, CSV and Related Parties are enjoined and

24 restrained from creating any dangerous conditions on the Property and from interfering with the

25 necessary activities of Receiver.

26 Notwithstanding the foregoing, CSV and/or Zeneca, Inc., shall have the right upon

27 reasonable written notice to Receiver and Plaintiff, to enter upon the Property to ex.amine, test and

28 inspect the environmental condition of the Property and to perform any and all acts related to the

#180494 vi sat

10 [PROPOSED]· 0'.IIDBR. APPOINTING RECBIVBR.EXPARTEAND TRO

CERF SP"Pl, LLC vs. Cherokee Simeon Venture I, LLC. Contra Costa Superior Case No. Cl2..00284

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1 Environmental Indemnity Agreement executed by CSV in favor of CERF, dated September 6, 2007

2 (''BIA"), related to any agreement or mandate from any governmental entity or official, including but

3 not limited to, implementing any remedies set forth in a Final Remedial Action Plan for Lots 1,2 and

4 3, Campus Bay, Richmond, California" ("FSRAP"), or related to other remediation activities

5 approved by or required by any governmental official or entity. As between CSV and the Plaint:ttI:

6 all terms and provisions contained in the EIA shall remain in place, including CSV's responsibility

7 for any damages to the Property as a result any investigatio� testing or remedial WQrk it performs on

8 the Property.

9 In the event CSV is unable to provide Receiver with evidence of insurance required by this

10 Order, Receiver,, in its sole discretio� may, as set forth in paragraph 8(d) above, elect to acquire the

11 insurance and allow investigation and/or remediation to occur.

12 19. CSV and Related Parties shall be restrained and enjoined from transferring or

13 assigning, or encumbering atiy interest in the Property without further order of this Court. In

14 addition, CSV and Related Parties shall be restrained and enjoined from committing or pennitting

15 any waste on the Property or any part thereof: or suffedng or committing or permitting any act on

16 the Property or any part thereof in violation of law or removing or transferring or otherwise

17 disposing of any of the equipmeJrt or fixtures presently on the Receivership Estate or any part

18 thereof; until :further Otder of this Court.

19 20. Plaintiff is not required to file a preUminary injunction bond specified in California Civil

20 Procedure section 529.

21 PROVISIONS UPON FORECLOSURE OR TERMINATION OF RECEIVERSHIP

22 IT IS FURTHER ORDERED that:

23 21. In the event that any or all of the Property is sold in a non-judicial or judicial foreclosure

24 proceeding, and the receivership remains in effect. funds previously paid to and held by Receiver I

25 .shall continue to be held by Receiver until Receiver•s final account and report (the "Final Report") is

26 approved by the Court. After Court approval of the Final Report and payment of all Court approved

27 Receivership Estate expenses, Plaintiff shall receive net proceeds in accordance with the operative

loan documents attached to and referenced in the Verified Complaint in this matter. 28

11 [PROPOSED] ORDER APPOINTING RECEIVER EX PARTE AND TR.O

CERF SPY!, LLC vs. Cherokee Simeon Venture I, LLC. Contra Costa Superior Cue No. Cl2-00284

#80494 vl saf

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. 1 22. In the event that the obligations owing to Plamtiff m:e not fully satisfied by the proceeds of

2 such sale, or in the event that this action is dismissed or the receivership is terminated for any reason

3 whatsoever. Receiver, upon Court approval ofR.eceiver's Final Report and payment of all Receivership

4 Estate expenses, shall be authorized to release, within two (2) business days of Receiver's receipt of a

5 'Written request by Plaintiff, all net funds under Receiver's control to Plaintiff to be applied toward any

6 obligations CSV may owe pursuant to the loan documents set forth in tb.e Complaint. In the event that

7 this receivership is terminated and.no foreclosure sale of the Properties has occurred or the loan has

8 been fully satisfied by the proceeds of a judicial or non-judicial foreclosure sale of the Property or

9 otherwise, all funds under Receiver's control shall be disbursed pursuant to the Court's instructions

10 upon termination of the receivership.

11 23. Promptly upon the satisfaction of the entire indebtedness to Plaintiff pursuant to the loan

12 documents and any obligations incurred by or to Receiver, Plaintiff and Receiver shall cooperate to

13 promptly prepare and obtain Court approval of a Final Report and an order discharging Receiver and

14 exonerating its bond.

15 24. Receiver shall remain an agent of this Court until: (i) the Property and all security is sold at a

16 foreclosure sale, whether judicial or non-judicial, relating to the Note or Deed of Trust and all debt

17 under the Note is fully paid; (ii) Plaintiff consents to the termination of the Receivership; and (ill)

18 the Court issues an order approving the Receiver's Final Report, discharging the Receiver and

19 exonerating its bond, thereby, terminating the Receivership.

20

21 IT IS SO ORDERED.

22

23 DATED:

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JUL 1 2 201Z JUDITH A. SANDERS

·Judge of the Superior Court

'fro T@�

12 [PROPOSED] ORDER APPOINTING RBCEIVBRBXPARTE AND TR.O

CERF SPT'I, LLC vs. Cherokee Simeon Venture I, LLC. Contra Costa Superior Case No. C12-00284

judge laurel s. brady misconduct contra costa county - receiver kevin singer unauthorized practice...

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