SUM-100 : SUMMONS cao.Sean BELA . (CITACION JUDICIAL) NOTICE TO DEFENDANT: ULNAR 28. BUEgrEQuoaLLy rLED (AVISO AL DEMANDADO) 'UPERIOR COURT OF CALIFCRNIA CITY OF SAN BERNARDINO, ROBERT FIELD, NATHAN FREEMAN, and DOES 1 EOUNTY OF SAN BERNARDINO through 20 ncusive SAN BERNARDINO DISTRICT YOU ARE BEING SUED BY PLAINTIFF: | si26/2024 (LO ESTA DEMANDANDO EL DEMANDANTE): SAN BERNARDINO DEVELOPMENT COMPANY LLC y: Kayla Schuebel, DEPUTY [NOTICET You have been sued. The cour may decide agains! you without your being heard unless you respond wifi 90 days. Read te nfrmation | eto "You have 30 CALENDAR DAYS after tis summons an legal papers are served on yout fle wit response ahi court and havea copy ‘served on the plant, eter or phone cal wil not protect you. Your writen response must ben proper lagal form f you wat the court to hear your tase. There may be a court form that you can use for yout resperse, You can find these court farms and more information a the Calfomia Courts |Onine Sate Help Center (warn couenfoca govseihep), your county law Hoary, or the courthouse nearest you. you cannot pay the fing fe, ask the ‘out clerk fora fee waiver form, Ifyou do not fle your response on 8m, you may loge the case by default, and your wages. meney, and propery may ‘be taken without further waning from the cour, "There ar oer lagal requirements, You may watt call an attorney right away. I you do not know an atlomey, you may want to call anatiomey ‘eferal sence. I you cannot afford an atlorey. you may be eigbe for Kee legal series fom a nonprofit aga services program. You can leale these nonpoft groups al he Calflora Legal Services Web site (wiv lawnlpcaifomia or), the Calforia Cours Online SeHelp Center (Gn courte c2 gowsethal), or by cartacting your local coun or county bar association. NOTE: The cout nasa statuary lon for waved fees and ‘costs on any setlement or rbration award of $0,000 or more ina cl case. The cout on must be pad before he court wil dismiss the case. [IAVISO! Lo han demandado. Sino responde dent de 30 das le cate puede deca en su canta sin escuchar su vers, Lea a informacion @ (contruacion, Tine 20 IAS DE CALENDARIO después do quo e entrequen este ctacién y papelesloales para prosentar una respuesta por escifo en esla | ler ynecer que es entregue une copa al demande, Una carta 0 na lamada eatnice no lo potepen. Su respuesta por escrito Bene que star ‘on formato legal carecto st desos que procesen su caso en a corte. Es pose que haya un formula que usted pueda usar par su respuesta, ‘Puede encontrar estos formutanos Oo a cote yma nfomacin en el Centro de Ayu do las Carts de Calflora ni sucoreca.g0v, en Is bibteca de ayes de eu candace on a core que le quode mas crea. S) No puede pager a cunts de presentacin, pda al socrtari do la cont que lab unto do exon de pogo do cucin So proses epvet Yon, puede perc ol cas porincumptmion ya cae pos (utr su svete, ners ybiones sh mas agvetence, Hay toe requis lagelas Es recorrendaba que lame a un abogad Imadtrents. Sino conoce @ un bogado, puede lamar aun servicio do | ‘emisiin a abopades. ino puede pager 6 un ebogedo, es posible que cumpla con os requstos para obtener sanvcos lagalesgratutos ce un roarama de soicis legees sin fines euro. Puede encenrr estos grupos a fnes de ur ene io wab de Cif Legal Sondcos (im ewelpeafrie og), en el Centre de Ayuda de as Cotas Ge Galfer, (mv sucorte ce gov) 0 ponlérdoee en contacto cn a cate oo! colegio de abogados feels AVISO: Pa ya cate bene darecho a reams es cuois y los costes exentos porimpane un gravaren sabre ‘unique recyperacién de $10,000 6 mas de valor recbida mediante un acuerdo o una cancesion de arbre en un caso de derecho cv. Tene que [pagar el gravamon dela cote antes do que ls corte pueds desscha caso. The name and address ofthe cout is Foon (Einombre y dirsccién de ia corte @s): San Bernardino Distict- Civil Division * CIVSB2405584 247 West Third Stet, San Bemardino, CA 92415 ‘The name, address, and telephone numberof plaintiffs attomey, or plait without an attorney, is (Elnombre, le dreccién y el nimero de teléfono del abogado de! demandante,o del demandante quo no tiene abogado, es) ‘Anthony J, Barron, Esq: Nixon Peabody LLP, 300 S. Grand Ave,, Sue 4100, Los Angeles, CA 90071; (213) 629-6000 DATE:-Februay-+4-2024— 3/26/2024 Clerk, by , Deputy (Poche) — (Secreto) __/8/ Kayla Schuebel__‘agmto)_ (For proof of sence of this summons, use Proof of Service af Summons (fom POS-010)) (Para prueba de entraga do esta cation use el formulaio Proof of Sewice of Summons, (POS-010)) een ~~ | NOTICE TO THE PERSON SERVED: You are served | 1. es en nsvidual defendant 2. FJ es the person sued under the fictitious name of (speci) 3. EX) on bohatof(speciyy: CITY OF SAN BERNARDINO under: [7] COP 416.10 (corporation) [1 cop 416.60 (minor) i cep 416.20 (defunct corporation) [J cop 41670 (conservatee) ([) co 416.40 (association or partnership) [=] COP 416.20 (authorized person) 3 other (speci: A PUBLIC ENTITY 4. [2 by personal delivery on (dat): cceamaiacsee ‘SUMMONS oer rer Rone ay 0)10 ul 12 13 14 15 16 7 18 19 20 24 n B 24 25 26 21 28 Anthony J. Barron, State Bar No. 150447 ron @ nixonpeabody com Carlos A. Becerra, State Bar No, 273833 cbecerra/nixonpeabody com EESTRON Ct Een ‘Adriana Levandowski, Stale Bar No. 350034 SUPERION COURT OF CaLiFORNIA alevandowski@ nixonpeabody.com COUNTY OF SAN BERNARDINO NIXON PEABODY LLP SAN BERNARDINO DISTRICT 300 S. Grand Avenue, Suite 4100 Los Angeles, CA 90071-3151 eee Tel: 213-629-6000 By: Kayla Schuebel, DEPUTY Fax: 213-629-6001 Attorneys for Plaintif? SAN BERNARDINO DEVELOPMENT COMPANY, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO SAN BERNARDINO DEVELOPMENT Case No, CIVSB2408584 COMPANY I COMPLAINT FOR DAMAGES: Plaintiff, | | 1) BREACH OF CONTRACT; vs. 2) BREACH OF IMPLIED CITY OF SAN BERNARDINO, ROBERT COVENANT OF GOOD FAITH FIELD, NATHAN FREEMAN, and DOES 1 AND FAIR DEALING; through 20 inclusi 3) FRAUD; Defendants. | 4) SPECIFIC PERFORMANCE; | 5) DECLARATORY RELIEF; AND 6) BREACH OF IMPLIED IN FACT CONTRACT DEMAND FOR JURY TRIAL -1- ‘COMPLAINT FOR DAMAGESween ce ao 10 u 2B 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 Plaintiff San Bernardino Development Company LLC (“SBDC” or “Plaintiff”) alleges claims against Defendants the of San Bernardino (the “City"); Robert Field (“Field”); Nathan Freeman (“Freeman”); and Does 1 through 20 inclusive (colle ively “Defendants” (together, the “Parties”), as follows: INTRODUCTION 1 The City of San Bernardino has been mismanaged and exploited by politicians and self-interested staff for decades, leaving the City-owned Carousel Mall property vacant and abandoned and the surrounding downtown area to suffer a depressing legacy of disrepair. 2 In 2019, the City embarked on a much needed initiative to redevelop the dilapidated Carousel Mall, which was once a focal point and economic driver for the City of San Bernardino and the entire downtown area (the “Carousel Mall Project” or “Project”). Yet, the Project was riddled with corruption from the very beginning and was ultimately sabotaged by lected officials for their own personal and/or financial gain at the expense of the Bernardino and SBDC, a well-respected developer, which brought a creative, community-centric and holistic approach to the long-awaited redevelopment of the City's Downtown area, including the failed Carousel Mall, 3. After engaging in a rigorous competitive bidding process and receiving qualification submittals from multiple development teams, with overwhelming public support the City selected SBDC as exclusive Master Developer for the Project. The public expected, and the Parties intended, that the Parties would enter into an agreement governing the development of the Carousel Mall property, a Disposition and Development Agreement (“DDA”). In fact, Field originally stated his desire to immediately commence wit negotiations for a DDA. However, shortly thereafter, Field reversed his position and stated that the City would aggressively move toward finalizing a DDA immediately upon signing an Exclusive Negotiation Agreement. In reliance upon the fraudulent assurances from the City and its staff, SBDC entered into an Exclusive Negotiation Agreement with the City on September 13, 2021 (the “ENA”). The ENA outlined the Parties’ respective interim obligations before entering into a DDA—all with the expectation that execution of the DDA was imminent, assured, and forthcoming. ‘COMPLAINT FOR DAMAGESoe ee u 13 14 15 16 7 18 19 20 21 2 23 24 25 26 27 28 4. Indeed, the ENA provided that the Parties would endeavor in good faith to negotiate and finalize a DDA. Under the ENA, the Parties agreed to “work diligently and in good faith to negotiate a DDA between them... [and] generally cooperate with each other, .. . and supply such available documents and information as may be reasonably requested by the other to facilitate the ‘conduct of the negotiations.” (ENA at § 5(a).) In addition, the Parties agreed that “[dJuring the ‘Negotiation Period, the Parties shall establish a schedule for in person/virtual meetings as may be necessary to meet the deadlines for preparing and executing a DDA within the Negotiation Period. Each Party shall diligently review and promptly comment on draft versions of a DDA provided by the other Party.” (ENA at §|7(2).) 5. The City does not dispute the foregoing and concedes that the City was obligated to cooperate and work in good faith toward redeveloping the Carousel Mall site with SBDC as the ‘Master Developer. Unbeknownst to SBDC, however, the City and its staff not only breached their duties to carry out the ENA in good faith, the City and its staff never intended to comply with the ENA in the first place. And, in fact, they worked continuously to interfere with the Project. As a result of this pattern of deceitful and fraudulent behavior, SBDC expended millions of dollars for services and intellectual property contributions while cont ig to fulfill and exceed its ENA contractual obligations. 6. City officials controlled and manipulated the process in bad faith for their own ends by systematically misleading the state housing agency, obstructing the negotiations, delaying key milestones, refusing to provide ENA-mandated updates to the City Council and the community (including ENA-mandated progress reports prepared by SBDC which were purposefully withheld from elected officials), hiding material information from SBDC, and publicly disparaging the project and SBDC. If that were not enough, City Officials engaged with other developers relative 10 the Project while the ENA remained in effect. Ulimately, the web of deceit by City staff and City elected officials led to a Notice of Violation (*NOV") from the State Department of Housing and Community Development (“HCD”) concerning the City’s failure to comply with the Surplus Land Act (“SLA")—which City officials then used as a false pretense to unlawfully and unilaterally terminate the ENA. -3- ‘COMPLAINT FOR DAMAGES10 u 2 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. After SBDC spent years and millions of dollars for services and intellectual property contributi upholding its end of the bargain, the City unilaterally terminated the ENA on May 3, 2023, without warning and in breach of the ENA. In terminating the ENA, the Ci ignored the provision addressing NOVs and SLA. compliance, which did not allow the City to terminate the ENA upon receipt of an NOV. Rather, it merely tolled the term of the ENA until the alleged SLA violations were resolved to both the City’s and SBDC’s satisfaction. 8. Without a legitimate explanation, certain City Council Members chose to disregard the terms of the ENA and terminate the ENA without any justification for doing so. Any citizen of San Bernardino can plainly deduce that the City used the NOV as an excuse to rid itself of its relationship with SBDC and pursue more profitable self-serving relationships with other developers. Apparently, certain Council Members were misled into the false belief that HCD left the City with no choice but to restart the SLA process to cure the NOV. The misleading ruse became obvious Council Member Ben Reynoso (“Reynoso”) just prior to the vote to terminate the ENA commented from the dais that HCD left the Council with no choice other than to start the SLA process from the beginning. This could not be further from the truth since HCD actually encouraged the City to work with SBDC to cure the SLA violations by providing more affordable housing instead of starting the process over once again 9. Notably, during an April 5, 2023, Council meeting, Council Member Sanchez admitted in the recorded Council meeting that he knew of the SLA violations early on in the SLA process, including while the ENA was being negotiated, but chose not to have them disclosed to SBDC or take any appropriate action: Regular Meeting of the Mayor and City Council of San Bernardino at 2:09:19 (April 5, 2023) hitos://www. outube,com/watch?v=N_XtKunQkXM. 10. Ultimately, the City and its staff fraudulently induced SBDC to enter into a contract with which it had no intention of complying or seeing to fruition. The City breached numerous provisi of the ENA as well as its duty of good faith and fair dealing to curry favors from other developers, disregarding the provisions of the ENA it signed, and the obligations and duties it owed to SBDC. Asa result of the City’s and its stafP's misconduct, SBDC has suffered millions of dollars in damages. -4- ‘COMPLAINT FOR DAMAGESTHE PARTIES 11. Plaintiff SBDC is a Californi imited liability company wit ipal place of business in Jericho, New York. 12, The City of San Bernardino is a charter law city duly organized under the laws of the State of California, 13. Field is an individual who, at all relevant times, served as the City Manager of the City from approximately September 2020 to January 2023, and who, upon information and belief, resides in Riverside, California. 14, Freeman is an individual who, at all relevant times, served as the Director of Community and Economic Development for the City from approximately May 2022 to June 2023, and who, upon information and belief, resides in Redlands, California. 15, Plaintiff is informed and believes, and on that basis alleges that Does 1 through 20, inclusive, are individually and/or jointly liable to SBDC for the wrongs alleged herein. The true ames and capacities, whether individual, corporate, associate, or otherwise, of Defendants Does 1-20, inclusive, are unknown to SBDC at this time. Accordingly, SBDC sues Does | through 20, inclusive, by fictitious names and will amend this Complaint to allege their true names and capacities after they are ascertained. JURISDICTION AND VENUE 16. Jurisdiction is proper in the Superior Court for the County of San Bemardino pursuant to Code of Civil Procedure 410.10 because the Parties agreed in the ENA that the venue for any action shall be San Bernardino County, California, and that any action shall be governed by the laws of the State of California, without application of conflict of law principles. The amount in controversy exceeds the jurisdictional minimum of this Court. 17, Venue is proper in this Court because the acts or omissi mns that are alleged in this Complaint occurred, and the relevant agreements were to be performed, in San Bernardino County, California, and some of the Defendants reside in this county. (Cal. Civ. Proc. Code § 395(a).) Wi aM -5- ‘COMPLAINT FOR DAMAGESwen u 2 13 4 15 16 7 18 19 20 2 22 23 24 28 26 27 28 BACKGROUND A. ‘The City of San Bernardino 18 For decades, the City of San Bernardino has been mismanaged by politicians and self-interested staff, resulting in a depressed downtown area, and leaving the City-owned Carousel Mall property vacant. 19. Though San Bernardino is the largest county in the contiguous United States in terms of square miles, 82% of the land is left vacant.' The City and County of San Bernardino have been in desperate need of redevelopment for decades. 20. In August 2012, facing a $45 million deficit, the City filed for bankruptcy protection seeking a federal bailout. 21. According to one Council Member at the time, nobody had their eye on the ball.? Charles McNeely (“McNeely”), who served as City Manager at the time, recently admitted that the City was “habitually borrowing money from restricted funds."> 22. The Los Angeles Times referred to the San Bemardino City Attorney at the time of the bankruptcy as an “old-school political boss.”* 23. Shorly after the bankruptcy filing, numerous scandals rocked the City, including allegations of graft, corruption, and greed for years, involving mayors, Council Members, and the City Attomey. 24. Since 2012, the City has experienced an inordinate amount of staff turnover. Over the past 12 years the City has gone through 12 City Managers. 25. No Mayor has served for more than one term since W.R. Bob Holcomb, who served from 1971-1985. * County Profile—San Bemardino, City of San Bernardino, Community Indicators, busilindicators.sbeoun!s eov/eountv-prafilel 2 Brian Whitehead, Nobody Had Their Eye on that Ball When San Bernardino Went Bankrupt 10 Years Ago, The Sun (Gly 29, 2023, 1:83 PM), hits://orww,shsun.com/2022/07/29/nobods -had-thelt-ese-on-that-all-when-san- bernardino-went-bankrupt-10-vears-asol, a7 4 Joe Mozingo, Did hard-nased ex-city attorney clean up or cause San Bernardino’s problems? Los Angeles Times (Dee. 30, 2015), btys://zraphicsJatimes,.com/san-bemnardino-boss aoe ~ COMPLAINT FOR DAMAGE10 ul R 1B 14 15 16 7 18 19 20 21 2 23 24 28 26 27 28 26. McNeely, who was brought back by the San Bemardino City Council in January 2023 to serve as Interim City Manager and who recommended the termination of the ENA, was the same City Manager who ran the City until he resigned three months before the City declared bankruptey. B. The Carousel Mall Development Project 27. The Carousel Mall—originally opened in 1972 as the Central City Mall, with 52 stores and three anchor stores situated on 43+/- acres—once served as a popular attraction for the City. During the late 1970s, however, the Central City Mall encountered challenges, including gang violence, which eroded the mall’s popularity and profitabi 28. In 1991, the mall was renamed Carousel Mall with the addition of a large colorful carousel to attract families with young children. But by 2003, all three anchor stores at the Carousel Mall closed, causing the mall to lose business to the nearby Inland Center. On August 22, 2017, the Carousel Mall officially closed its doors, illustrating the rapid decline of San Bernardino’s downtown area. 29. In 2019, as the City was finally turning the comer in the longest municipal bankruptcy in recent history, the Mayor and City Council decided to redevelop the Carousel Mall site 30, During 2019, the City conducted a competitive bidding process through a Request for Qualification (“RFQ”) and, in 2020, a Request for Proposals (“RFP”) in an effort to locate a developer to redevelop the Carousel! Mall site and revitalize the city’s downtown area. 31. The City specifically expressed its desire to partner with a development firm that would take a B/G & BOLD approach for this long-awaited redevelopment. 32. After more than twelve months of the City’s extensive review of the REP responses and vetting of potential developers, the City selected SBDC as the most qualified developer. 33. Renaissance Downtowns USA LLC, a/k/a ICO Real Estate Group (“RDICO"), which later became SBDC, submitted an elaborate proposal that included 4,000 residential units within the overall Carousel Mall site, along with market-driven retail, office, and other mixed-used components comprising an overall 4.5-million-square-foot development on the Carousel Mall site ~~ COMPLAINT FOR DAMAGESul 12 13 4 15 16 7 18 19 20 21 22 23 24 25 26 27 28 alone. 34. In addition, SBDC was significantly involved in the preparation of the overall || Downtown Specific Plan (DT'SP), which will represent around approximately 16-17 million square feet of overall mixed-use development, potent lly one of, if not the largest suburban downtown redevelopment efforts in California, 35. On March 3, 2021, the City Council scheduled a vote to select the developer for the Carousel Mall Project. Prior to the Couneil’s vote, Field, who was the City Manager at the time, opposed the selection of SBDC, and instead, recommended that the City Council direct m—the City Manager—to master plan the development of the Carousel Mall Project through the use of his own City staff (with much of the knowledge already gained from SBDC and its proposal). Cities almost never embark on projects of this magnitude on their own without the inclusion of experienced development professionals, especially a city like San Bernardino that has experienced an unprecedented period of stagnation along with one of the highest employee turn-over rates of any city in the State 36. The community overwhelmingly supported the selection of SBDC as the Master Developer for the Project, excited about SBDC’s involvement in the project and relieved that something would finally be done to improve the failing downtown. This was demonstrated by approximately 70 community members who spoke in support of the selection of SBDC, while not a single speaker spoke in support of the other options presented, including Shanghai Construction Group, or the option that the City move forward on its own without a master developer. 37. The City voted 6-1 in favor of selecting SBDC as the City’s Master Developer. Unfortunately, since the City's selection of SBDC as Master Developer, Field engaged in a pattern of deception and obfuscation to undermine the Project and SBDC. 38. On August 18, 2021, the City Couneil voted 7-0 to authorize the City Manager to enter into an ENA with SBDC, which was finally executed in September 2021. C. Fraudulent Misrepresentations Regarding The SLA 39, Inthe meantime, in 2019, the California State Legislature adopted AB 1486, which amended the SLA to promote affordable housing and became law in January 2020, Among other -8- ‘COMPLAINT FOR DAMAGES10 ul 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 things, AB 1486 requires that with certain exceptions, before a city can dispose of surplus land or participate in negotiations to dispose of that land, it must first declare the land to be surplus, issue a Notice of Availability (‘NOA”) for 60 days, and engage in good faith negotiations with any affordable housing developer that expresses an interest in purchasing the land, AB 1486 further requires a city seeking to dispose of surplus land to provide HCD with a description of the process the city followed to comply with the law. 40. Importantly, AB 1486 provides an express exemption for surplus land that is put out to open competitive bidding for a mixed-use development that is more than one acre in area, includes at least 300 housing units, and restricts at least 25 percent (25%) of the residential units to lower income households (the “Mixed-Use Exemption”). 41, After the City selected SBDC as the Master Developer for the Carousel Mall Project, on March 3, 2021, City officials informed SBDC for the first time that the City would need to comply with the SLA process. 42. On May 19, 2021, the City issued an NOA declaring the property “surplus” and making available to interested parties. SBDC suggested to the City on several occasions that SBDC had relationships with several reputable affordable housing developers that would be willing to participate with SBDC to further ensure total compliance. 43. At the conclusion of the 60-day NOA period, City staff falsely and fraudulently informed SBDC that there were no respondents who expressed interest in the NOA. Further, the City submitted compliance documents with HCD stating that there were no expressions of interest in the property during the NOA period. Indeed, it was later revealed that two affordable housing developers had expressed interest in the property during the NOA period. 44, Based on the City’s fraudulent submittal, HCD sent the City a letter on September 2, 2021, stating that it had determined the City had met all the requirements under the SLA and that the City may proceed with disposition of the Carousel Mall property. SBDC later learned that the City misrepresented its compliance to the HCD and to SBDC. D. The ENA 48. On September 13, 2021, the Parties entered into the ENA. oo ‘COMPLAINT FOR DAMAGESul 13 14 15 16 7 18 19 20 21 22 23 24 25 26 ou 28 46. Based upon conversations and assurances by City representatives, the ENA contemplated that the Parties would immediately work diligently toward the negotiation and execution ofa DDA. 47. The Parties agreed to “work diligently and in good faith to negotiate a DDA between them . . . [and] generally cooperate with each other, including, without limitation, making themselves available to meet and discuss the Project and any other matters pertaining to the development . . . and supply such available documents and information as may be reasonably requested by the other to facilitate the conduct of the negotiations.” (ENA at § 5(a).) Under the ENA, the Parties agreed that “[bJoth the City and Developer shall exercise commercially reasonable efforts to complete discussions relating to the terms and conditions of a DDA, and such other matters, as may be mutually acceptable to both the City and Developer, in their respective sole discretion.” (ENA at § 5(b).) 48. SBDC provided the City a deposit in the amount of $100,000 as an initial deposit to “ensure that the City and Developer [would] proceed diligently and in good faith to fulfill their respective obligations under [the] Agreement during the Negotiation Period ... and as part of the consideration for the City’s agreement not to negotiate with other persons during the Negotiation Period, and to defray certain costs of the City . .. in pursuing the contemplated negotiations with the Developer during the Negotiation Period.” ENA at § 2(a). 49. The “Negotiation Period” was for 180 consecutive calendar days following the ENA’s “Effective Date.” (ENA at § 3(a).) 50. The ENA allowed the parties to extend the “Negotiation Period” by written agreement. (ENA at 4 3(b),) 51. ‘The ENA was amended in March 2022, June 2022, and July 2022 to extend the Parties’ Negotiation Period, with the latest Negotiation Period ending September 12, 2023. (ENA 1" Amend, at ]F; 2"! Amend. at § F; 3° Amend, at § F.) 52. SBDC agreed to pay “all fees or expenses of engineers, architects, financial consultants, legal, planning or other consultants or contractors, re 8) ed by Developer.” (ENA at § P10" ‘COMPLAINT FOR DAMAGES4 15 16 17 18 19 20 21 2 23 24 25 26 27 28 53. Accordingly, the ENA provides that “Any information, drawings, designs, plans, specifications, studies, reports, sketches, conceptual plans, development plans and financing plans relating to the Project (collectively, the “Information” prepared for and/or developed by Developer and furnished to the City, excluding any matters of public record or matters generally known to the public, shall be treated by the ity as a trade secret and/or proprietary and confidential and, except as may be required by law, will not be disclosed by the City to anyone other than on a need-to- know basis and to the City’s consultants and attorneys who agree to maintain the confidentiality of the Information. Developer shall be the owner of and possess all intellectual property rights to the Information.” (ENA at § 10(f).) 54. With respeet to the SLA, the ENA provided that: a. The City and Developer acknowledge that due to recent changes in California law the sale of the Property is subject to the Surplus Land Act (“SLA”) (Gov't Code Section 54220 et seq.): b. The City declared the Property surplus on May 19, 2021, issued the required Notice of Availability and did not receive any letters of interest thus completing, the steps necessary to fully comply with Notice of Availability process under the SLA; and c. The City shall take such other necessary steps to fully comply with the SLA, including but not limited to the filing of a Complete Submittal with the [HCD] and recording a covenant against the Property at the time of sale requiring 15% of housing developed on the Property to be made affordable to low and moderate income families as required by the SLA. (ENA at $f D, E, F (emphasis added),) 55. The ENA provided that if during the term of the ENA, the City received an NOV “or similar communication of non-compliance with the provisions of the SLA” from HCD, “the City shall return the [$100,000] Initial Deposit and the term of [the] Agreement shall be tolled until: the date of the NOV {sic] determines the City has complied with the terms of the SLA, at which point the Developer shall immediately return the Initial Deposit to the City, Ifthe SLA issues are resolved to the City and Developer's reasonable satisfaction then the term of this Agreement shall recommence and the number of days that the Agreement was tolled shall be extended to the Initial Term.” (ENA at 3(€).) oie COMPLAINT FOR DAMAGESBw nae 10 ul 12 13 4 15 16 7 18 19 20 2 2 23 24 25 26 7 28 36. ‘The ENA contains no provision for the early, unilateral termination of the ENA. 57. In amendments to the ENA, the City promised it “complied with the [SLA] Gov't Code Section $4220 et seq.) and received confirmation from the California Department of Housing and Community Development on September 2, 2021... .” (ENA 1 Amend, at | D (Mar. 14, 2022); 2" Amend. at § D (June 7, 2022); 3 Amend. at §C (July 13, 2022).) 58. The City agreed in the ENA not to “negotiate with any other person regarding the sale or redevelopment of the Property” during the Negotiation Period, where “negotiate. .. meant] and refer{ed] to engaging in any discussions with a person other than [SBDC], regardless of how initiated, with respect to the availability of the Property or that person’s redevelopment of the Property, without [SBDC’s] prior written consent.” (ENA at { 9.) 59. Under the ENA, the City was required to provided SBDC with “a summary of costs charged against the Initial Deposit ... in sixty (60) day intervals after the Effective Date” and upon the te ition of the ENA, any remaining funds were “at [SBDC’s] option, either be applied to the purchase price or returned to [SBDC] within thirty (30) days after request from [SBDC].” (ENA. at §2@).) 60. The Parties also agreed to “establish a schedule for in person/virtual meetings as may be necessary to meet the deadlines for preparing and executing a DDA . . ..” (ENA at {7(@),) 61. The Parties further agreed that “keeping the public informed of the progress being ‘made on the Project is important to the overall success of the Project” and the City agreed to “keep [SBDC] reasonably and timely advised of pertinent developments affecting the Project.” (ENA at 17), @Gi)) 62. “Public presentations” were to be made “jointly or if individually then with the knowledge of the other Party.” (ENA at ] 7(c(iii).) 63. ‘The ENA contained a “Default” provision, which provides, in part Failure or delay by either Party to perform any material term or provision of this Agreement shall constitute a default under this Agreement. If the Party who receives notice of a default from the other Party cures, corrects{,] ot remedies the alleged default within fifteen (15) calendar days after receipt of written notice by the other Party specifying such default, such Party shall not be in default under this Agreement. In such cases where more than fifteen -12- ‘COMPLAINT FOR DAMAGESCm raueen 10 un 12 1B 14 15 16 7 18 19 20 21 22 23 24 25 26 a7 28 (15) calendar days are reasonably required to cure said default the defaulting Party shall commence the cure within fifteen (15) calendar days and diligently pursue the cure. Any monetary default shall be cured within the fifteen (15) calendar day cure period. Notwithstanding, anything contrary in this Agreement, under all circumstances, each Party shall exercise good ‘faith and commercially reasonable efforts to cure, correct[,] or remedy any default, time being of the essence. If there are less than fifteen (15) days remaining in the Negotiation Period, the cure period allowed pursuant to this Section 13(a) shall be automatically reduced to the number of days remaining in the Negotiation Period. (ENA at § 13(a) (emphasis added).) ‘The ENA purports to include a “Liquidated Damages Amount” of $100,000. (ENA at § 12.) But itis clear the Parties never intended this arbitrary and grossly insufficient amount to approximate the expenses that SBDC would incur during the ENA period, or the damages that ‘SBDC would suffer in the event the City breached the terms of the ENA. Early drafts of the ENA that were exchanged between SBDC and the City Attorney reveal that the City originally proposed the “Liquidated Damages Amount” to be a mere $10,000. The Liquidated Damages provision was unreasonable under the circumstances existing at the time the ENA was made. 65. Ultimately, the City insisted that it not be more than $100,000, with no consideration for what the actual costs or damages might be because of its assurances that the DDA would soon follow and that the liquidated damages provis n was effectively a placeholder that would never be enforced. Relying on the City and its officials’ representations of good faith and other obligations under the ENA, SBDC reluctantly agreed in order to finalize an ENA that the City Manager and City Attorney would finally recommend to City Council after nearly six months of delay. SBDC never expected the City would try to use the Liquidated Damages Amount to intentionally breach the agreement and walk away from the deal. 66. The ENA provides that it is to be governed by California law and that San Bernardino County is the chosen venue. (ENA at § 21.) 67. It also provides that if any Party brings any action against the other “arising out of [the ENA]” the prevailing Party is entitled to costs, including reasonable attomeys’ fees, as determined by the court, (ENA at § 24.) Ww 213s) ‘COMPLAINT FOR DAMAGESce a 10 iT 12 13 14 15 16 a 18 19 20 21 22 23 24 2s 26 7 28 E. SBDC’s Performance Under the ENA 68. From the issuance of the RFP in July 2019 through May 2023, when the City unilaterally terminated the ENA, SBDC worked tirelessly and in good faith to cary out its obligations under the ENA. 69. Throughout the nearly four-year period, SBDC attempted to work diligently with City staff, clected officials, City consultants (with little cooperation from the City), as well as potential development partners, local property owners, businesses, and the community at large to fulfil its obligations. 70. For instance, in or around September 2020, the City selected PlaceWorks, Inc. (“PlaceWorks”), a planning and design firm, to provide services related to the City’s Downtown Specific Area and General Plan update. After the ENA was executed, PlaceWorks and SBDC immediately began to collaborate on a series of plans and strategies based upon their individual expertise and shared philosophy of socially, environmentally, and economically responsible development. Over the course of approximately two years, PlaceWorks and SBDC held approximately 72 planning and design meetings and workshops, many of which were attended by City representatives. This included a comprehensive two-day charette attended by PlaceWorks, SBDC and their respective consultants, along with City representatives and many public members of the community. 71. PlaceWorks recognized that members of the SBDC team had extensive experience in large-scale mixed-use downtown transit-oriented development and welcomed the human and financial commitments that SBDC would provide throughout this collaborative effort as well as the intellectual property contributions that SBDC would provide. PlaceWorks also acknowledged that form-based zoning codes were not widely utilized in California, and they were pleased to learn that SBDC team members had extensive experience in the creation and utilization of this planning tool. ‘One member of the SBDC team is even a Steering Committee Member of the Form-Based Zoning Code Institute. 72. SBDC held or attended over 70 meetings with community groups and organizations, including Ward meetings and workshops seeking input for the City’s Downtown Specific Plan -14- ‘COMPLAINT FOR DAMAGESew aw oe 10 uw 2 13 4 15 16 7 18 19 20 2 22 23 24 25 26 27 28 ‘COMPLAINT FOR DAMAGES (DTSP*) and update of the City’s General Plan, as well as additional meetings with groups such as Something Better for San Bernardino (“SB4SB”); Environmental Justice Coalition; Uplift San Bemardino; Native American Tribes; chambers of commerce, and other community residents, and businesses, while every step of the way, pledging to include a Community Benefits Agreement as part of the Project. 73. SBDC stated from the outset that it would not do business with any municipality without a Community Benefits Agreement (“CBA”) being part of the municipatity’s redevelopment efforts. To that end, SBDC recommended that the City retain the services of Julian Gross (“Gross”) of Renne Public Law Group. The City began discussions with Gross, but the discussions ended without a commitment from the City, consi ing the City never actually intended to enter into a CBA. 74. SBDC assisted the City by providing its expertise and i tellectual property, which resulted in significant tangible value for the City, and the foundation for one of the biggest, boldest, and most transformative downtown redevelopment projects in the State of California. This big and bold approach suggested by SBDC resulted in the City’s ability to more than double its 8,123, RHNA housing State mandate by providing for the potential for over 16,000 residential units in the City’s downtown alone. 75. SBDC was instrumental in putting the City on a path toward a redevelopment plan, which was designed to create approximately 27,000 primary and secondary construction job years, approximately 4,500 permanent jobs, along with multiple contracting and entrepreneurial ‘opportunities for local residents and businesses alike through the inclusion of an overarching ‘Community Benefits Agreement. 76. Further, as a result of the City’s acknowledgement that no one developer would likely build the entire 4.5 million square feet alone, the City and SBDC agreed that the ENA “Schedule of Performance” should “[p}rovide staff with a list of potential users/tenants for the Property and development partners or merchant builders for the development of the Property.” SBDC not only complied with this Schedule of Performance requirement, but dramatically exceeded it, SBDC’s outreach to the development community resulted in SBDC providing the City -15-10 u 12 13 14 15 16 17 18 19 20 21 2 23 4 25 26 2 28 with approximately 124 potential users/tenants/development partners/merchant builders for the development of the Project. Acknowledging these addi al opportunities, SBDC and the City entered into a Non-Disclosure Agreement (“NDA”), dated December 1, 2021, shortly after the execution of the ENA, which required these potential participants to be the subject of an NDA. between the City and SBDC. F. Defendants’ Breaches of the ENA and Fraudulent Misconduct 1. ‘The City’s Failure to Perform Under the ENA 77. While SBDC was meeting or exceeding all of its obligations under the ENA, the City was surreptitiously and consistently undermining the Parties’ progress as well as the very process that would have enabled San Bernardino to finally move forward a legitimate public/private partnership after over 15 years of failed attempts. 78. Throughout the course of the ENA, the City; the City Manager, Field; the Interim City Manager, McNeely; and the former Director of Community and Economic Development, Freeman, intentionally delayed, frustrated, and subverted the Carousel Mall Project. 79. From October 2021, the City intentionally and repeatedly stalled negotiations on the DDA. 80. From October 2021, the City repeatedly stalled negotiations with the public and SBDC on the Community Benefits Agreement. 81. Meanwhile, SBDC repeatedly requested meetings with the City Council Ad Hoc Committee and asked to presentations to the City Council and public on the status of the project. Those requests were repeatedly rebuffed by the City Manager, Field; Interim City Manager McNeely; and Community Economies Development Director Freeman, 82. Throughout the course of the Parties’ Negotiation Period under the ENA, the City repeatedly failed to meet its obligations under the ENA, for example: a. The City mismanaged and delayed the appraisal process, environmental testing, and infrastructure assessment, Phase | and Phase 2 ESA, and Zoning Code Amendments; b. ‘The City Manager refused to schedule briefings with the Ad Hoc Committee, the City Council, and the public; 2163 ‘COMPLAINT FOR DAMAGES10 ul 12 13 4 15 16 17 18 19 20 2 2 2B 24 25 26 a7 28 . SBDC, PlaceWorks, Mujica, and the City Planning City staff repeatedly missed and canceled meetings; The City failed to use commercially reasonable efforts to complete discussions relating to terms and conditions of a DDA, and in fact, the City never once responded to the draft DDA submitted by SBDC’s counsel; staff failed to keep SBDC reasonably and timely informed of pertinent developments affecting the Project; Field, McNeely, and Freeman rebuffed SBDC’s numerous requests to provide updates to the City Council, as required in the ENA; ‘The City failed to provide SBDC summaries of costs charged against the initial deposit, as required by the ENA, despite repeated requests from SBDC. |. SBDC was instructed by Field not to directly communicate with any Council Members or the Mayor. SBDC became increasingly concerned that the Council and Mayor were not aware of the tremendous efforts of SBDC with virtually no effort of cooperation from City staff. Eventually SBDC became aware that none of the bi-weekly reports were ever forwarded to the Mayor or any of the other Council Members or Ad-Hoc Committee Members as required; Oliver Mujica (“Mujica”), the City’s Interim Community and Economic Director, for reasons unknown to SBDC, and without prior notice, did not attend several scheduled meetings during the first four months of 2022, At the conclusion of the April 4, 2022, meeting, when Mujica was questioned as to why he missed many of these meetings, he responded that he was not at liberty to discuss, but gave clear advice to SBDC to keep good records. Shortly thereafter, Mujica was terminated by the City. Field finally scheduled an in-person meeting for November 15, 2022, attended by SBDC and multiple members of the City staff, including Field and Freeman, the Ad Hoc Committee, and Gross. Suspecting that neither the Council, nor the Mayor, nor the Ad Hoc Committee ever received any of the bi-weekly reports, SBDC then presented copies of all bi-weekly reports to the Ad-Hoc Committee Members. SBDC then questioned if the Ad Hoc Committee had ever previously seen these bi-weekly reports and each of them responded, no. Field confirmed that the bi-weekly reports were never distributed as the parties had agreed. When Field was further asked by SBDC as to why these progress reports were never istributed, he responded: “ll have to get back to you.” Shortly thereafter Field resigned. Field never provided a reason for why SBDC’s progress reports were withheld. sion Manager, worked for approximately two months to produce a project update and video presentation for the City, as requested by Field. As with SBDC’s progress reports and other work product, its project update and video presentation was never forwarded to any City Council Members, the Mayor, Ad Hoc Committee Members, or presented to the community-at-large. -17- COMPLAINT FOR DAMAGESwk ww ewe 3 10 u 12 13 14 18 16 7 18 19 20 2 22 23 24 26 7 28 83. Despite the City’s lack of commitment to the Project, SBDC worked diligently to bring the Project to fruition. Throughout the process, as contemplated in the ENA, SBDC introduced the City to several potential development partners for the project, including Primestor and Lincoln Property Company (LPC). 84. On January 28, 2022, SBDC introduced LPC to Field and the City, which appeared to be extremely excited at the prospect of LPC joining forces with SBDC since they were one of ‘the most respected development firms in California as well asthe entire country with over 200,000 residential units under management. 85. In March 2022, SBDC expressed concern that the City’s continued delays in the appraisal process, environmental testing, infrastructure assessments, and other relevant processes ‘would discourage LPC from joining the Project. 86. On or about August 3, 2022, the City Council unanimously approved the Third Amendment to the ENA, which installed LPC as a joint venture development partner with SBDC for the Project. 87. During the August 3, 2022, City Council meeting approving LPC, several Council Members and community participants praised SBDC for its efforts that resulted in LPC joining forces with SBDC. 88. LPC then began discussions with the City and expressed concerns about delays caused by the City regarding the appraisal process, environmental testing, and infrastructure analysis. 89. LPC expressed to SBDC its early frustrations regarding the City’s lack of response to LPC’s concerns. 90. Onor about September 30, 2022—some 45 days from the effective date of the Third ‘Amendment to the ENA—LPC suddenly informed the City and SBDC that it was withdrawing from the project due to “economic and other consider \s.” SBDC believes that those other considerations related to the City’s continued actions of bad faith and refusal to address LPC’s concerns (which were some of the same concerns SBDC had). Upon LPC’s departure SBDC resumed the role of sole Master Developer for the Project. -18- ‘COMPLAINT FOR DAMAGES91. Iman effort to gather additional information regarding LPC’s sudden departure, in or around October 2022, SBDC sent a letter to the City requesting all communications and meetings between LPC and the City. It took the City until December 20, 2022, to fully respond to this request. Included in the City’s response were copies of several communications from February 2022 alleging that the City violated SLA requirements. Given LPC’s repeated concems to the City, SBDC believes that the revelation to LPC of this disturbing and unforeseen course of events, cemented LPC’s decision to withdraw from the Project. 92. It was not until the City’s disclosure of records on December 20, 2022, that SBDC became aware of communications between Public Counsel/Power Switch Action and the City regarding allegations that the City violated several provisions of the SLA. As soon as SBDC became aware of the allegations, SBDC immediately confronted the City and repeatedly demanded that Pield and Freeman provide SBDC with an explanation as to these allegations. In response, SBDC was told that no violations were committed by the City. 93. Onor about January 24, 2023, SBDC informed Freeman that a member of the SBDC team has been a member of the Urban Land Institute’s (“ULI”) National Transit Oriented Development (“TOD”) Council for the past 15 years. SBDC informed Freeman that after two years of requests by SBDC to present the City of San Bernardino’s enormous development opportunity toa global audience at the ULI conference, SBDC learned on or about December 13, 2022, that the ULI Program Selection Committee notified SBDC that SBDC’s request to present this opportunity San Bernardino development opportunity was granted. 94. Freeman suggested that both he and the Mayor Elect be included in a panel of four which would also include representatives from SBDC and Primestor. Freeman requested that SBDC send him all information so that the City would not miss out on this enormous opportunity. 95. In discussing the ULI presentation opportunity, Freeman acknowledged the tremendous efforts and input and intellectual property contributions provided by the SBDC team to PlaceWorks and the City toward the creation of a Form-Based Zoning Code (FBZC), the Downtown Specific Plan (DTSP), and General Plan that resulted in the potential for 16-18 million square feet of development that would have enabled the City to double their RHNA mandates. =19- ‘COMPLAINT FOR DAMAGES10 u 12 4 15 16 7 18 19 20 21 22 23 24 25 26 27 28 Freeman also acknowledged SBDC’s significant input regarding the San Bernardino Housing Element. PlaceWorks and Mujica also requested that SBDC forward them an outline showing specific overlay zone parameters that have successfully worked for affiliates of SBDC that would serve as a foundational element that the FBZC would be structured around. ‘On January 25, 2023, SBDC met with the City, including Freeman, McNeely, Calvin, Sanchez, Shorett, Carvalho, Eveland, Nametz, Arnette, Rice, and Hernandez. SBDC once again reminded all City meeting participants of the voluminous amount of information that SBDC provided to the City in its progress reports and questioned if any of the City meeting participants had reviewed them. There was no response. SBDC also inquired as to whether any of the City meeting participants had seen the December 8, 2022, SBDC response letter to Field’s request. The answer was again no. 97. Another topic discussed at this meeting was regarding the City’s intention to go forward with the demolition of the Carousel Mall. SBDC once again questioned the legality of the bidding process and whether the City received the necessary approvals from the various California environmental agencies. Freeman's response was “yes.” SBDC then requested to see any correspondence between the City and any environmental agencies. BDC never received any of this requested environmental information from Freeman, including, but not limited to, evidence of compliance with South Coast Air Quality Management District (“SCAQMD"); California OSHA; California Department of Public Health; California Department of Toxic Substances; and the California Environmental Quality Act (*CEQA”). To date, SBDC is unaware if the City followed any of these required environmental protocols. 98. On February 13, 2023, Freeman surprisingly, with no explanation whatsoever, indicated that in spite of the City’s previous enthusiastic response to participating in a panel with SBDC and Primestor at the upcoming ULI Spring conference, the City was no longer interested in such participation for reasons that Freeman was not at liberty to discuss. These further and unexplained course changes by the City represent a continued pattem of bad and ‘misrepresentations which put SBDC in the embarrassing situation of having to apologize to ULI for its sudden withdrawal. -20- ‘COMPLAINT FOR DAMAGESSe eres ie. u 12 13 14 15 16 7 18 19 20 2 22 23 24 26 27 28 99. On or about February 16, 2023, SBDC introduced Primestor, one of California's ‘most respected development firms, to Freeman and McNeely. Primestor expressed a high level of interest to join forces with SBDC, and Freeman appeared very supportive of the potential of having Primestor become a part of the SBDC development team. In fact, Freeman stated that while he was employed by the City of Riverside, he was unsuccessful in attracting Primestor to develop certain properties within the City of Riverside. 2, Defendants’ SLA Violations 100. On February 16, 2023, SBDC arranged a meeting attended by the City (McNeely and Freeman), SBDC, and affordable housing developer, Primestor. SBDC once again expressed its disappointment and anger based upon the alleged SLA violations committed by the City. SBDC and Primestor strongly advocated that the City include SBDC and Primestor in discussions with Public Counsel/Power Switch Action and possibly HCD to ensure that all alleged SLA violation issues be immediately addressed and resolved. 101. On March 16, 2023, HCD sent the NOV to the City stating that the City’s SLA compliance submittal was patently false. HCD cited four violations committed by the City: Failing to provide 90 days of good faith negoti \s to entities who submitted notices of interest — the City did in fact receive NOA responses from two interested affordable housing developers and even engaged in discussions with these interested parties; (ii) Negotiating and selecting a developer prior to issuing Notice of Availability of Surplus Land; (iii) Failing to priority to affordable housing; and (iv) Failing to provide a complete description of negotiations 102. As part of the NOV, HCD rescinded its September 2, 2021, approval of the disposition of the property. Importantly, the NOV stated that the City “may have multiple avenues it can pursue to comply with the SLA,” and invited the City to discuss those options. 103. The City did not inform SBDC about the NOV until March 23, 2023. 104. When SBDC confronted the City about the NOV, Freeman falsely told SBDC that the City did not commit any violations of the SLA and that he would be forwarding a response to HCD upon approval by the Council to do so at the upcoming April 5, 2023, Council meeting, 105. Shockingly, on April 28, 2023, SBDC became aware that the May 3, 2023, City pale ‘COMPLAINT FOR DAMAGESul 12 13 14 15 16 7 18 19 20 2 22 23 24 25 26 27 28 Council agenda included an agenda item calling for a Council vote to unilaterally terminate the ENA in spite of there being no indication from HCD that this would be a recommended course of action. In fact, HCD supported a strategy by which SBDC could continue in its role as Master Developer and seek to incorporate an affordable housing component as opposed to needlessly and ‘wastefully starting the entire SLA process from scratch. 106. Immediately upon SBDC becoming aware of the proposed termination of the ENA, SBDC reached out to David Zisser (“Zisser”) of HCD on May 1, 2023. On May 2, 2023, Zisser responded to SBDC, and explained that the City was planning to terminate the ENA the next day based on the City stating that HCD recommended such action, er stated that he was completely unaware of this and that he would contact the City to convey HCD’s lack of support for any termination of the ENA under current circumstances. 107. Unbeknownst to SBDC, HCD contacted the City about the SLA violations as early as March 6, 2023. Also unbeknownst to SBDC, the City was contacted over a year earlier by Public Council and the group Power Switch Action about similar allegations that were included in the NOV. 108. Indeed, records show that Public Counsel shared its concems with HCD, which resulted in the NOV. Field and Freeman intentionally hid the allegations as well as multiple occasions of back-and-forth between the City and Public Counsel for over a year. SBDC only discovered the information through a document request related to LPC’s sudden withdrawal from the Project. 109, When the City received the NOV, rather than involving SBDC to help resolve the issue as anticipated by the ENA, the City simply stopped communicating with SBDC and failed to share material communications it had with HCD about the alleged violations. 110, Instead, the City Manager responded to HCD, without consulting SBDC and claimed that the two affordable housing developers withdrew their interest (ignoring the failure to notify HCD of the expressed interest). 111, SBDC was not aware of the early 2022 correspondence from Public Counsel about the SLA issues or that Public Counsel communicated with the HCD until SBDC received -2- ‘COMPLAINT FOR DAMAGES10 u 2 13 4 15 16 7 18 19 20 21 22 23 24 25 26 27 28 documents from the City in response to an unrelated Public Records Act request in October 2022. 112, Importantly, a February 17, 2022, letter the City received from Public Counsel and Power Switch Action—which the City withheld from SBDC—outlined three paths that the City could take to cure the alleged violations of the SLA. One option was to utilize the “Mixed-Use Exception” per Government Code section 54221(1)(1)(F)(i), which would include applying a covenant requiring at least 25% of the residential units constructed on the property to be affordable to lower-income households. 113. Upon information and belief, the ity never seriously, if at all, considered the possibility of providing 25% affordable units in order to cure the alleged SLA violations. The City never discussed this option with SBDC. 114. In fact, SBDC was not allowed to discuss the Carousel Mall project with the City Council until a City Council meeting on April 5, 2023, when the Council was scheduled to consider the NOV. At that me 1g, there was no presentation by staff or anyone else about the status of the project and all that had been accomplished by SBDC. Instead, Interim City Manager McNeely and Freeman arranged to take the NOV issue last on the agenda in the early hours of the moming and provided only five minutes for SBDC to address the Council. By that time, almost all of the public who had crowded the Council Chambers to hear both the NOV issues and the SBDC presentation had gone home. This was despite numerous assurances given by Freeman that SBDC would be placed early on in the agenda when almost 300 people were in attendance. 115, Notably, when the City Council met on April 5, 2023, to jder the NOV, Council Member Calvin revealed the following public statement: ..since June of 2021 when the Ad Hoc Committee was created, I have not been told the full ruth as to what was before us, what we needed to do, what ‘was being done without our knowledge, eighteen months of reports that ‘were not given to us, meetings with the Lincoln Group, and the Ad Hoc ‘Committee was never invited. Sixty days they were here, [and] never did ‘we meet them. Never were we able to sit down and have a conversation, Never did we know [the] direction...” -23- ‘COMPLAINT FOR DAMAGESul 12 13 4 15 16 7 18 19 20 21 22 23 24 23 26 7 28 “We in the City of San Bernardino just seem to have this ability to continue to create errors that last for decades in this City. That is not what I signed up for...We failed the public by not being able to be accountable for what the City has done.> 116. Council Member Sanchez. clapped back that they all knew they were violating the SLA. (Id) 117, On April 20, 2023, two weeks before the ill-fated Council meeting, the City’s Economic Development Division Manager, Amanda Hernandez (“Hernandez”), emailed HCD to ask for a meeting. She wrote: “We would like to share our Council’s decision.” 118. On April 28, 2023, Freeman informed SBDC that City staff would recommend to the City Couneil on May 3, 2023, that it should terminate the ENA and pay out the liquidated damages. Again, Freeman misrepresented HCD’s position, repeatedly claiming that HCD has been very clear that in order to cure the violations, the City had to terminate its agreement with SBDC. 119. On or about May 1, 2023, SBDC reached out to HCD directly and on May 2, 2023, SBDC spoke directly with Zisser of HCD. During this conversation, Zisser was first made aware of the significant effort put in by SBDC in discussions with several involved community groups, including Something Better for San Bemmardino—a collection of organizations including Teamsters Local 1932, Southwest Regional Council of Carpenters Union, the Sierra Club, Warehouse Worker Resource Center (“WWRC") and other community groups, all dedicated to the formation of a Community Benefits Agreement (“CBA”) to address issues such as attainable housing, local job creation and hiring, and social equity. 120, SBDC made Zisser aware that SBDC and Primestor were close to finalizing a joint venture agreement for the Carousel Mall Project, and that Primestor was very far jar with all aspects of the SLA process and was confident that both SBDC and Primestor (iff given the opportunity) could immediately resolve all SLA issues that would prevent the City and HCD from * San Bemardino City Council, Regular Meeting of the Mayor and City Council (April , 2023), httpsi/m. facebook. com/treasureforsb/videosthe-city-does-not-have-torestar-the-downtown-redevelopment-project« lover-again-a/1221343745435392/2 rd By COMPLAINT FOR DAMAGEShaving to restart the entire SLA process. At the conclusion of the call, Zisser stated that he agreed that there was no need to start the SLA process over and that he would be immediately communicating that to the City prior to the Council's vote to terminate the ENA. 121. Onoor about May 3, 2023, Zisser emailed the City Attorney and confirmed that he had informed the City that SBDC stated that it was willing to incorporate 25% affordable housing into a future project on the site. HCD suggested in its email that the City, SBDC, and HCD could “engage in discussions for a finite period of time with respect to a disposition that meets the statutory requirements of the SLA’s mixed-use exemption.” 122. Unfortunately, McNeely and Freeman as well as certain City Couneil Members had already decided that they would use the NOV as a false pretext to terminate the ENA. Worse yet, there was no discussion whatsoever prior to the vote to terminate the ENA revealing any of HCD"s stated desire to continue to work through these issues. In fact, the only statement made by Council Member Reynoso prior to the vote was that HCD left the City with no choice but to start over— which was simply not true. 123, The City never engage in discussions with SBDC regarding the NOV, nor did it, "upon information and belief, ever correct the issues raised in the NOV. 3. The City’s Improper Termination of the ENA 124, Atthe May 3, 2023, City Council meeting, Fernandez gave the staffreport and made the recommendation to authorize City Manager McNeely to terminate the ENA and pay the liquidated damages amount of $100,000. Hemandez provided no other option and did not discuss the possibility of using the Mixed-Use Exemption. Nor did she mention HCD’s suggestion to continue discussions with SBDC toward a resolution, Only Council Member Ben Reynoso (Reynoso”) spoke from the dais, claiming that HCD told them the City needed to cancel the ENA and restart the SLA process. 125, At the May 3, 2023, City Council meeting, Interim City Manager McNeely stated, “We also know and recognize we've got some work to do on this particular project and we're committed to doing that and the residents should know we're going to move forward very aggressively to make sure we get this project done underway . . . and we're fully committed tomaking this project happen.” 126. Council Member Reynoso explained the purpose and requirements of the SLA to the community, stating “the City did not do that in good faith, there wasn’t a good track record of it, we're all responsible.” 127, Notably, SBDC requested that a letter it sent to the City regarding the vote to rescind the ENA not only be read during the public comment period as it commonly done in every Council meeting, but to also be included as part of the public record. Upon information and belief, neither of these requests were honored by the City, 128. On May 3, 2023, the City Council voted 5-2 to terminate the ENA. 129. The day after the May 3 City Council Meeting, McNeely informed SBDC of the City’s termination of the ENA by letter. 130. The letter began by expressing “sincere gratitude for the collaborative efforts between [SBDC] and the City of San Bernardino over the last several years to conceptualize and undertake the development of the Carousel Mall Property.” The letter expressed appreciation for SBDC’s “commitment to the community an residents throughout this process.” 131. The letter provided that in light of the NOV, “it became clear the best option for the community was to terminate the ENA and redo the SLA process.” 132, After squarely blaming the NOV for the City’s decision to terminate the ENA and restart the SLA. process, the letter recognized that this “has caused disruption to our partnership” and asked for SBDC’s “understanding during this time.” 133. SBDC since came to learn that in early February 2023, months before the City Council terminated the ENA, Freeman, the Community Housing & Economic Development Director at the time, was at a Neighborhood Association Council Presidents’ meeting and stated that SBDC was off the project (untrue contractually and factually), that the project was dead (also false and not disclosed to SBDC), that SBDC was having financial trouble (false), and that he (Freeman) was talking with other developers about the project violation of the ENA). 134, Residents have also reported that in January 2023, two San Bernardino ity Council ‘Members were on a local radio show reporting that SBDC was “out,” that the project was not going -26- ‘COMPLAINT FOR DAMAGES10 u 2 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 to happen, and that downtown would be parceled out. 135, SBDC was provided with two messages supporting these allegations. 136. The first message, sent to SBDC on February 5, 2023, reported that two San Bernardino City Council Members on a local radio show said SBDC was “out.” 137, The second message, sent on February 6, 2023, provided that Freeman confirmed SBDC was out and “a new developer was being courted,” and that “the original developer was never going to go anywhere and that it was a good thing because they were having financial issues.” 138. It was also reported to SBDC that during a February 4, 2023, Neighborhood Association Council President’s meeting, Freeman SBDC was “off the project, they didn’t have the funds to complete it, and he made it sound like the company was facing financial problems.” When asked about the plan, “Director Freeman said he is having discussions with other development groups about the redevelopment.” 139. Following the City’s termination of the ENA, SBDC filed a Governmental Claims Act form on July 24, 2023, which attached a Notice of Default letter to the City. 140. On August 15, 2023, SBDC received a Notice of Rejection, providing SBDC six (6) ‘months to initiate a court action against the ity. 4, The City’s Actions Post-Termination of the ENA 141. On October 18, 2023, the City Council voted 5-3 to hire Charles Montoya (“Montoya”) as the new permanent City Manager. This selection was made in spite of enormous community opp. ion to the hiring of Montoya, due to a history of alleged wrong-doing on the part of Montoya as outlined in the City of Avondale’s Notice of Montoya’s Termination with Cause Letter along with the October 19, 2023, San Bernardino Sun article describing a history of allegations of misconduct by Montoya. 142. On January 31, 2024, a special meeting of the City Council was called for to begin at 3:00 pm—a time when few community residents and stakeholders would be able to attend and voice opposition. Montoya, with no community or Couneil input and without issuance of an RFP, stated that he had contacted bond counsel for the purpose of securing a $75 million bond for the rehabilitation of the former City Hall building prior to having received a single cost estimate from -27- ‘COMPLAINT FOR DAMAGESany reputable contractors that would justify the amount of the bond. Montoya also suggested that the City do exactly what Field suggested on March 3, 2021, i.e. that the City take on the role of Master Developer itself for the Carousel Mall Project. 143, Inaddition, Montoya discussed the viability of the City creating an EIFD enabling the City to secure much needed infrastructure funding. He mentioned that the City entered into an agreement with Kosmont Companies related to securing said EIFD funding. What Montoya did not mention was that Kosmont Companies was a sub-consultant to SBDC and was introduced to the City by SBDC. The City then made the decision to choose a different consultant to provide services to the City related to the EIFD and unfortunately, little to no progress was ever made. It appears that the City engaged in negotiations with Kosmont Companies even prior to provide the termination of the ENA. FIRST CAUSE OF ACTIOI Breach of Contract (Against the City) 144. SBDC hereby incorporates by reference each and every allegation contained in paragraphs 1 through 142, set forth above as if fully set forth herein. 145. The ENA constitutes a valid contract between the Parties, supported by adequate consideration. 146. The expressly agreed in the ENA that they would “proceed diligently and in good faith to fulfill their respective obligations” and to “work diligently and in good faith to negotiate a DDA between them . . . generally cooperate with each other, including, without limitation, making themselves available to meet and discuss the Project and any other matters Pertaining to the development . .. and supply such available documents and information as may be reasonably requested by the other to facilitate the conduct of the negotiations.” (ENA at $f 2(a), 3(ay(o), 4,5) 147, The ENA required the parties to exercise “commercially reasonable efforts to complete discussions relating to the terms and conditions of a DDA.” (ENA at 5(b).) 148. The ENA further provided that: ity and Developer acknowledge that due to recent changes in -28 ‘COMPLAINT FOR DAMAGES25 26 27 28 California law the sale of the Property is subject to the Surplus Land Act (SLA”) Gov't Code Section $4220 et seq.); ii, The City declared the Property surplus on May 19, 2021, issued the required Notice of Availability and did not receive any letters of interest thus completing the steps necessary to fully comply with Notice of Availability process under the SLA; and iii, The City shall take such other necessary steps to fully comply with the SLA, including but not limited to the filing of a Complete Submittal with the [HCD] and recording a covenant against the Property at the time of sale requiring 15% of housing developed on the Property to be made affordable to low- and moderate-income families as required by the SLA. (ENA at §f] D, E, F (emphasis added).) 149. The ENA also contained an express provision for how the parties would resolve a potential NOV/SLA compliance issue, and agreed: “If during the term of this Agreement the City receives a [NOV] or similar communication of non-compliance with the provisions of the SLA from the [HCD] related to compliance with the SLA, the City shall return the Initial Deposit to the Developer and the term of this Agreement shall be tolled until: the date of the NOV determines the City has complied with the terms of the SLA, at which point the Developer shall immediately return the Initial Deposit to the City. Ifthe SLA issues are resolved to the City and Developer's reasonable satisfaction then the term of this Agreement shall recommence and the number of days that the Agreement was tolled shall be extended to the Initial Term.” (ENA at §)3(e).) 150. In amendments to the ENA, the City promised it “complied with the [SLA] (Gov't Code Section 54220 et seq.) and received confirmation from the California Department of Housing and Community Development on September 2, 2021...” (ENA I* Amend. 1 at | D (Mar. 14, 2022); 2"! Amend. at § D (June 7, 2022); 3" Amend. at §}C (July 13, 2022).) 151. The City agreed in the ENA not to “negotiate with any other person regarding the sale or redevelopment of the Property” during the Negotiation Period, where “negotiate . .. mean{t] and referfed] to engaging in any discussions with a person other than [SBDC], regardless of how -29- ‘COMPLAINT FOR DAMAGES10 u 12 4 15 16 7 18 19 20 21 2 23 24 25 26 27 28 initiated, with respect to the availability of the Property or that person's redevelopment of the Property, without [SBDC’s] prior written consent.” (ENA at 9.) 152, The Parties also agreed to “establish a schedule for in person/virtual meetings as may be necessary to meet the deadlines for preparing and executing a DDA ... .” (ENA at § 7(a),) 153. ‘The Parties further agreed that “keeping the public informed of the progress being made on the Project is important to the overall success of the Project” and the City agreed to “keep {SBDC] reasonably and timely advised of pertinent developments affecting the Project.” (ENA at | 17), @ai 184. SBDC fully performed the obligations imposed upon it by the ENA. 155. The City breached the ENA in various ways, including, but not limited to, the | following: a, From October 2021 through May 3, 2023, the City continuously stalled and failed to pursue good faith negotiations regarding the DDA. b. From October 2021 through May 3, 2023, the City stalled and failed to pursue 200d faith negotiations with the public on the Community Benefits Agreement. ¢. The City strongly objected, without providing any reason, to SBDC responding to the Notice of Availability (NOA) related to the SLA process with an affordable housing developer. 4. The City failed to dit ‘bute the required SBDC bi-weekly progress reports to City Council Members, the Mayor, and the Ad Hoc Committee. ©. The City mismanaged and delayed the appraisal, infrastructure assessment, environmental assessments, Phase I ESA, CBA, and Zoning Code Amendment. The City Manager and Interim City Manager refused to schedule briefings with the Ad Hoc Committee, City Couneil, and the public. g. The repeatedly missed and canceled meetings. hh. The City failed to use commercially reasonable efforts to commence discussions relating to terms and conditions of a DA. i. The City failed to keep SBDC reasonably and timely informed of pertinent aa0e ‘COMPLAINT FOR DAMAGES:developments affecting the Carousel Mall Project. J. The City entered into amendments to the ENA misrepresenting its compliance with the SLA. k. ‘The City failed to timely inform SBDC that it had received multiple communications from Public Counsel and Power Switch Action containing allegations about SLA violations since February 2022. 1. The City failed to involve SBDC in discussions about options to resolve the alleged SLA violations. m, The City acknowledged its property appraisal conducted was over-valued. n. The City improperly terminated the ENA. ©. ‘The City entered into discussions and negotiations with other developers while | the ENA was in effect. 156. As a direct and proximate consequence of the City’s breaches of the ENA, SBDC | has incurred damages far in excess of the jurisdictional limits of this court. (OND CAUSE OF ACTION Breach of Implied Covenant of Good Faith and Fair Dealing (Against the City) 157, SBDC hereby incorporates by reference each and every allegation contained in paragraphs | through 155, set forth above as if fully set forth herein. 158. ‘The City at all material es had a duty to act fairly and in good faith in carrying out the terms of the ENA. 159. Defendant breached its duty to act fairly and in good faith, and indeed acted in the utmost bad faith, in various ways, including, but not limited to, the following: a. The City worked to undermine or prevent the development of the Carousel Mall Project. b. The City misrepresented its compliance with the SLA to SBDC. c. The City failed to work with SBDC to resolve the alleged SLA violations. 4. Freeman, during the term of the ENA, stated SBDC was “off the project,” the project was “dead,” and SBDC was having financial trouble. eats ‘COMPLAINT FOR DAMAGES“4 15 16 7 19 20 21 22 23 24 25 26 27 28 160. ‘The City wrongfully and intentionally breached its duty of good faith and fair dealing by its conduct alleged herein. 161. Asa direct and proximate result of the City’s breach, SBDC has suffered damages its of the court. THIRD CAUSE OF ACTION Fraud (Against Freeman, Field, and Does 1-20) far in excess of the jurisdictional li 162. SBDC hereby incorporates by reference each and every allegation contained in paragraphs 1 through 160, set forth above as if fully set forth herein. 163. Defendants concealed and/or suppressed material facts from SBDC, including, without limitation: a. Field fraudulently induced SBDC to enter into the ENA when it represented both within and outside of the ENA that the City had (i) completed the process required under the SLA for notice to affordable housing developers, (ii) received no letters of interest, and complied with the SLA. b. Field fraudulently induced SBDC to enter into the ENA and to extend the ‘Negotiation Period when he represented the City had complied with the SLA to the satisfaction of the HCD, ¢. Field fraudulently induced SBDC to enter into the ENA by agreeing in the ENA. that it would not negotiate with other developers d g the term of the ENA. ield fraudulently induced SBDC to enter into the ENA by its fraudulent assurances that the DDA would soon follow. ¢. Field fraudulently failed to provide SBDC’s bi- eekly reports as required under the ENA to the City Council while the ENA was in effect. {. Field failed to provide bi-monthly reports to SBDC as required under the ENA which would have shown what funds the City expended under the escrow account. . Field and Freeman misrepresented that the City was reviewing the DDA and would get back to SBDC regarding the DDA while the ENA was in effect. -32- ‘COMPLAINT FOR DAMAGES10 u 12 14 15 16 7 18 19 20 21 22 23 24 25 26 7 28 h. Freeman fraudulently omitted that the City was negotiating with other developers while the ENA was in effect. i, Freeman fraudulently concealed or misrepresented HCD’ posit regard to the SLA. 164. Defendants had a duty to SBDC to not misrepresent the aforementioned material facts and to disclose the aforementioned material facts to SBDC. 165. Defendants intentionally misrepresented and concealed the aforementioned material facts from SBDC with an intent to defraud SBDC and induce SBDC to enter into the ENA and/or for SBDC to perform and continue to perform under the ENA. 166. The foregoing fraud was motivated by corruption and/or actual malice. 167. SBDC justifiably relied on the Defendants’ material misstatements and/or omissions. 168. Asadirect and proximate result of the fraudulent conduct of Defendants, SBDC has suffered damages. 169. The conduct by Defendants, as described herein, was fraudulent, malicious, and oppressive, entitling SBDC to an award of punitive damages. FOURTH CAUSE OF ACTION Specific Performance (Against All Defendants) 170, SBDC hereby incorporates by reference each and every allegation contained in paragraphs 1 through 168, set forth above as if fully set forth herein. 171, Defendants breached the terms of the ENA. 172. SBDC is entitled to specific performance of the ENA. 173. SBDC seeks specific performance of the ENA, including, but not limited to, an order requiring Defendants to comply with contractual terms of the ENA. 174, SBDC seeks an order requiring Defendants to perform under the terms of the ENA, including Defendants’ obligations to negotiate a DDA related to the Carousel Mall Project with SBDC in good faith. mw -33- ‘COMPLAINT FOR DAMAGESFIFTH CAUSE OF ACTION Declaratory Relief (Against All Defendants) 175, SBDC hereby incorporates by reference each and every allegation contained in paragraphs 1 through 173, set forth above as if fully set forth herein. 176, An actual and justiciable controversy has arisen, and now exists, between SBDC and Defendants as to whether the liquidated damages provision of the ENA is enforceable, 177, As a result of the acts described in the preceding paragraphs, there exists a controversy of sufficient immediacy and reality to warrant the issuance of a declaratory judgment that the ENA’s liquidated damages provision is void. 178, Such a judicial determination is necessary and appropriate at this time so that the Parties can ascertain their respective rights and duties. 179. SBDC therefore desires a judicial determination, SIXTH CAUSE OF ACTION Breach of Implied in Fact Contract (Against the City) 180. SBDC hereby incorporates by reference each and every allegation contained in Paragraphs | through 178, set forth above as if fully set forth herein. 181, Prior to and at the time of entering into the ENA, the City’s actions indicated an intent to advance the Carousel Mall Project. 182, SBDC reasonably understood the actions and communications by the City to constitute express and/or implied requests that SBDC provide servi to the City and other vendors to advance the Carousel Mall Project. 183. The City’s conduct gave ris ¢ to implied-in-fact agreements between SBDC and the City in reliance on the completion of the Carousel Mall Project. 184. SBDC performed all its obligations under its implied-in-fact contracts with the City. 185. ‘The City breached its i -in-fact agreements with SBDC by, among other things, failing to advance and terminating the Carousel Mall Project. 186. As a direct and proximate result of the City’s breach, the SBDC has suffered ead ‘COMPLAINT FOR DAMAGESBowe ul R 4 15 16 7 18 19 20 21 22 23 24 25 26 27 28 damages far in excess of the jurisdictional limits of the court. PRAYER FOR RELIEF WHEREFORE, SBDC respectfully prays for judgment against Defendants, and each of them, as follows: FIRST CAUSE OF ACTION L._ For specific performance as specified above: and. 2. For money representing compensatory damages for harm to SBDC resulting from the City’s misconduct. SECOND CAUSE OF ACTION 3. For money representing compensatory damages for harm to SBDC resulting from the City’s misconduct. THIRD CAU: 4. Inthe alternati , for the ENA to be voided; 3. For money representing compensatory damages for harm to SBDC resulting from Defendants’ misconduct; and 6. For punitive damages. FOURTH CAUSE OF ACTION 7. For an oder requiring Defendants to perform under the ENA. FIFTH CAUSE OF ACTION 8. Foran order finding the liquidated damages clause in the ENA to be unenforceable. SIXTH CAUSE OF ACTION the amount of Plaintiff's reasonable value of services performed. FOR ALL CAUSES OF ACTION 10. For attorneys’ fees and costs of suit. 11. For pre-judgment and post-judgment interest. 12. For such other and further relief as the Court may deem just and proper. -35- ‘COMPLAINT FOR DAMAGESear nuneun 10 i 2 13 14 15 16 7 18 19 20 21 22 23 25 26 27 28 Dated: February 14, 2024 NIXON PEABODY LLP 7. By: Myf “Anthony J. Barron Anthony J. Barron Carlos A, Becerra Adriana Levandowski Attorneys for Plaintiff SAN BERNARDINO DEVELOPMENT COMPANY LLC -36- ‘COMPLAINT FOR DAMAGESCm rw anneun DEMAND FOR TRIAL BY JURY Plaintiff hereby demands a jury trial ofall causes of action and claims with respect to which Plaintiff has a right to jury trial. Dated: February 14, 2024 ‘NIXON PEABODY LLP oR Myf On By: ‘Anthony J. Barron Anthony J. Barron Carlos A. Becerra Adriana Levandowski Attomeys for Plaintiff SAN BERNARDINO DEVELOPMENT COMPANY LLC -37- ‘COMPLAINT FOR DAMAGES- - cm.010 [RETORNEY og HRT THOUT ATTORNEY We eB mo ed a, yon count use ony ‘Arnon Garon (SEN #80447), Cates N Bocas (SON 273835), ana Levendowi (SBN 850004) | ‘zon Pesboay LL? 00'S Grand Avenue, Sut 4100, Los Angeles, CA 90071 | | ‘Sat nutes tanesgrmepesy co bce on eomanisegrareebatyein | ELECTRONICALLY FILED ae : SUPERIOR COURT OF CALIFORNIA ‘sromr ron na Pint San Bernadino Development Company {1 SUPERIOR COURT OF CALIFORN "SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAW BERNARDINO SAN SERNARDING DISTRICT Crm eos 247 Weet Tha Street | sisson 247 West Thid Steet 2114/2024 6:42 PM "sancr we San Berard Det - iil vison By Kayla Schuebel, DEPUTY | CASE NAME: - ] | San Serve Ostpent Company Lv. Cy of Sn Bema. et CIVIL CASE COVER SHEET "Complex Case Designation | 5 "er [2 Unlimited [J Limited [counter] sinder CIVSB2406584 wernt (iron | ried wth rt pperance by tenant (ang7 —— exceeds $35,000) $35,000 orlass)|_(C9! Rules ofCourt, rule $402) nr. —________Tlems #=6 below must be completed (56 “1. Check one box below forthe case type that best describes ths case: asructions on page By ‘to Tort Contact Provisionally Complex Civ Litigation Ty Ato 2) LE] Breacn ofconractnaranty (8) (Cal Rules of Cour rules 3400-3.) [=] Unite moto 4) [Pate 3740 cnecton (00) [ Atarusradereguaton (3) ‘Ger PUPOND (Personal InjuryiProperty =) other calacion (09) () Constueton detect (1) Damegetrongi Death) Tor F oworcesncee 8) TS) Mas tot 4) Tj Asvests (04 [E oteromwea a7) [secures itgaton (2) Product tatty 24) Real Property ) Emwironmental/Taxic tort (20) [} Medica! matpractes (46) 1 Eminent domaininerse Insurance coverage cas asin rom he () oter Puro (29 candemnation (4) baie’ Non-PUPDMWD (Other) Tort ES Mrongtl eviction (39) Enforcement of Judgment [Business toduntae business practice (07) [—] Other real property (28) [1 Enforcoment of judgment (20) coma rights (08) ‘Uniewfut Detainer Miscellaneous Civil Complaint Detamation (13) Commercial 31) orto er) | rears) ( Restentia 2) otter compan (nt spected above) (2) inocu propery 18) J ongs 28) izcolanous Ci Petition Protessiona neatigence (25) ee (Partnership and corporate govemance (21) | otper nan-PUPOMWO tont (95) a) Ascet trace (05) Employment [ Petton re: arivaton ewaré (11) [J Oterpetiton (nt species above) (42) | Co Wrong ieminaion 26) TE wetotmandate (2) |) ote employment (18) others evew (26) 2 Thiscase [_—] is [E} not complex under re 3400 ofthe Calfoia Rules of Gout the cass complex mathe factors requrig exceptional jal management 4 [Large number of soparately represented parties & [— Large number of witnesses bE] enereve meter onetce aseoalficoterrera: & [=] Coordinaton with related actons pending in one or more issues that wil be Ime conauming tw rasone urn oes counts, sites, or counties, orn a easel © [2 Substantial amount of documentary evidence, -—) Substantial postudgment judicial supervision 3. Remedies sought check al that epoly-a. LE] monetary b. CE] nonmonetary; decaratory or injunctive reiet c. CI] pune 4. Number of causes of acton spect) si 5. Thiscase CJ is Le Tisnot aciass action suit 6. there ae any known rested cases, fle and serve a notice of related case. (You mey use form CM-015) Date: 2/4204 om Anthony J. Barron > Yip¢ Om —— Tatar a TR RTE { NoTice + Plait rst es cove shet wih he rst paper fen th ation procaesing (excep smal cans cass ox case led nde te Probate Coc, Family Coe, Vrs ad isutene Coe) (Ca Res f Cau ne 3220) Fare oe may estin sanctions + Fe tis cover sheet nao ary cover shoe oqo by loa cnr nse, + fis ass comple nde 3.409 eof he Carla ls of Cour. YOu must ere a copy of his cove sheet on al ote partes o JT teacionor proceeding _+ Unies colecons case under ue 2.740 or a compo cases cover shet wl be vad for static pupoes ony ome CIVIL CASE COVER SHEET ONES Schnee 88353INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET cM-o10 To Plaintifs and Others Filing First Papers. If you are fling a frst paper (far exemple, a complaint) in a civil case, you must complete and fie, along with your first paper, the Civil Case Cover Sheet contained on page 1. This information willbe used to compile slatistics about the types and numbers of cases fled. You must complete items 1 through 6 on the sheet. In item 1, you must check ‘one box forthe case type thet best describes the case. Ifthe case fis both a general and a more specific type of cate listed in item 1, check the more specific one. Ifthe case has mutple causes of action, check the box that best indicates the primary cause of action, To assist you in completing the sheet, examples ofthe cases that belong under each case type in item 1 are provided below. A cover ‘sheet must be fled only with your ital paper. Failure to fle a cover sheet with the frst paper filed in a civil case may subject a party, its counsel, or both to sanctions under rules 2.30 and 3.220 ofthe Calfornia Rules of Cour. To Parties in Rule 3.740 Collections Cases. A “colactions case" under rule 2.740 is defined as an action for recovery of money owed in a sum stated tobe certain that not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in which Property, services, of money was acquired on credit. A colections case does nat include an action seeking the following: (1) tort, damages, (2) punitve damages, (3) recovery of eal property, (4) recovery of personal property, or (6) a prejudgment wit of attachment. The identification of a case as a rule 3.740 collections case on this form means that it wil be exempt feom the general time-for-serviee requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections case willbe subject tothe requirements for service and obtaining @ judgment in rule 3.740, To Parties in Complex Cases. in complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the cease is complex. Ifa plaintiff believes the case is complex under rule 3.400 ofthe Gelifomia Rules of Cour, this must be indicated by ‘completing the appropriate boxes in items 1 and 2. fa plaintiff designates a case as complex, the cover sheet must be served with the complaint on all parties to the action. A defendant may file and serve no later than the time of is first appearance a joinder in the Plaintif's designation, a counter-designation thatthe case is not complex, o, if the plaintiff has made no designation, @ designation that {he case is complex. conracy CASE TYPES AND EXAMPLES ‘Auto Tort 0 Provisionally Complex Civil Ligation (Cl. “Auto (22)-PersonaljunyPeoperty ‘Breach of ContractMaranty (06) los of Court Ros 3400-2408) Damagentongi Death Breach of RertalLoaso “Anbu Trade Regulation (03) Uninsured Motor (4) (the Contact (rt nt cetainer ‘Construction Dees (10) ease involve an uninsured or wrangtl eviction Clams Invlvng Mass Tort (40) ‘motors claim sujet o Contract rranty Brea Seer ‘Secures Litgaton (28) tratratn, check is tom Plain nt ru or nogigence) EnvonmentaTovi To (20) Instad of Auto) Neolgen Brecn of Conracy Insurance Coverage Cains ‘Other PUPDIWO (Pereonat injury! varnty {ansing tom prousionly complex peeeey raceme tatea tne Breach of ContactWarranty amen mernienl eal pce bere Colectons (eg, money owed, open Ene eonet ieee ‘Asbestos Property Damage Book accounts (09) Enforcement of Jeagmet (20) ‘nsbetiosPorsonal nun! (lection Case_Soter Pint Abatret of sgt (Out of County) Weng Death iver Promissory NojtColectons Case canfgsian of Judgment (noncomestc poten ere Insurance Coverage (at prowsionaly ie ‘ovetnwranmerta) 4). compen) (16) Sister State ludgment Medial Malpractee (48) Auto Subrogation Administrative Agency Award Medea Mapracten ‘ter Coverage (rot unpaid taxes) Physicians & Surgeons tner Contract 7) PebtonCeeicaton of Ent of ber Professions Heath Care ‘Contractual Fraud Judgment on Unpaid Taxes aration inet Convac Dispute ‘thar Enorcoment of udgment Case Ober PUPOID 0) Real Property Miseelianeous Chil Complaint Premises Uaoity (0. sp Eminent Domaininverse ‘Rco@) ae \Condormaton 4) (Other Gamplaint rc specedebove) 42) Interstona Bly yuy/POND ronal Eviction 63) Deciaratory Reet Only pau Other Real Property (3. quit tite) 26) Inet Rett Oni (no: Intentional ieton of Wet of Pessession of Rea Property rarasonert | ‘matonal Distess Morgane Foretosure Mechanics Len Neohgent nition of Quiet Tite ‘Other Conmers Complaint Emotional Doss (ner Real Property (ot eminent Cace (nortertnan-complen) over PvPGMD domain, andordtenant, or ther Ci Compaint Non-PUPDIWO (Other) Tort ferecosure) nontorinancomlex) Business Town Business Unlawful Detaner Miscellaneous Chi Petion Practice (07) Commercial (31) Parnershi and Corporate Civil Rights (e.9., discrimination, cogent Governance (21) fase are) (oto! Deans (8) ie aoe involves egal ‘ther Paton (nt spetes shove) (43) harassment (08) rugs, check hi tam thai, ‘ial Harasment Defamation (9, sianer, be (1) report ws Commerce er Reson) Wiorkace Viotnce Fra (38) Judicial Reviw ElderDependert Adu Abuso Infelectual Property (19) ‘AssotFerfere (06) Election Contest Professional Negligence (25) Partie keleiien benet (17) Petiton for Name Change Logs Mapai ‘Weiter Mandate (2) Petton for Retet From cate Clam ‘Otter Profesional Malracion Wit-Acmnistave Mandamus ter Cv Patton en tendo cn ies Gat aaa \it-Other mtd Court Case Review "Neongil Termination (2) (ther dca Revow (0) eee Review of Heath Ofcer Order Net o Appeal-Labor Commissonee “areas (e010 ya) CIVIL CASE COVER SHEET ProrzensPog Re, copy “PSR SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN BERNARDINGAP 9, tla, "Oy, Sty owsszinsses Vy, ‘San Bernardino Development Company, LLC Case Ne vs. CERTIFICATE OF ASSIGNMENT City of San Bemardino, et al. ‘A civilaction or proceeding presented for lng musi be accompanied by this Certifeate. the ground is the residence ofa party, name and residence shallbe stated. igned declares that the above-cntitled matter is filed for proceedings in the District of the Superior Court under Rule 131 and General Order ofthis courtfor the checked reason: General D Collection Nature of Action Ground 1. Adoption Potitioncr resides within the district : g 2, Conservator Petitioner or conservatec resides within the district. 3. Contract Performance in the district is expressly provided for. Cl 4. Equiy The cause of action arose within the district. 5. Eminent Domain ‘The property is located within the district. g 6. Family Law Plaintif, defendant, petitioner or respondent resides within the district, 7, Guardianship Petitioner or ward resides within the district ot has property within the district. [] 8. Harassment Plaintiff defendant, petitioner or respondent resides within the district 9. Mandate ‘The defendant functions wholly within the district, 10, Name Change The petitioner resides within the district. 11. Personal Injury ‘The injury occurred within the district. 12. Personal Property ‘The property is located within the distict. 13, Probate Decedent resided or resides within or had property within the district, Him Proton The dseodaat intone wholy wine dst Ol 15. Review The defendant fimctions wholly within the district [J] 16. Title to RealProperty The property is located within the district. 17. Transferred Action The lower courtis located within the district. 18. Unlawful Detainer The property is located within the district, ] 19. Domestic Violence ‘The petitioner, defendant, plaintiff or respondent resides within the district. ED 20. other. () 21. THs FING WOULD NORMALLY FALL WITHIN JURISDICTION OF SUPERIOR COURT ‘The address ofthe accident, performance, party, detention, place of business, or other factor which qualifies this cease for fling in the above-designed district is: The City of San Bernardino 201 N. "B" Street Building A San Bemardino, CA 92401 —m = TATE mF COOE Ideclare, vader penalty of perjury, that the foregoing is true and correct and that this declaration was executed on March 27, 2024 at Los Angeles : California. “Vistar 2 : ae TAPAS ee CERTIFICATE OF ASSIGNMENT Rew fe 2019SUPERIOR COURT OF CALIFORNIA, ‘COUNTY OF SAN BERNARDINO ‘San Bernardino District 247 West 3rd St San Bernardino CA 92415 ‘www .sb-court.org 909-708-8678 SAN BERNARDINO DEVELOPMENT COMPANY LLC-v- ROBERT FIELD ot al s ‘Case Number NOTICE OF TRIAL SETTING CONFERENCE and NOTICE OF CASE ASSIGNMENT —— eee _civs82405584 ‘Nixon Peabody LLP 300 South Grand Avenue Suite 4100 Los Angeles CA 90071 ‘This case has been assigned to: Stephanie Tanad: Department $33 - SBJC for all purposes. "Notice is hereby given that the above-entitied case has been set for Trial Setting Conference on: Hearing Date: 09/29/2024 at 8:30 AM in Department $33 - SBJC. Date: 3/26/2024 By: 2 _ Kayla Schuebel, Deputy Clerk CERTIFICATE OF SERVICE | am a Deputy Clerk of the Superior Court for the County of San Bernardino atthe above-listed address. | am ‘ot @ party to this action and on the date and place shown below, | served a copy ofthe above-listed notice by: Enclosed in a sealed envelope mailed to the interested parly addressed above for collection and mailing this date, following standard Court practices. C1 Enclosed in a sealed envelope, first class postage prepaid in the U.S. mail atthe location shown above, mailed to the interested party and addressed as shown above or as shown on the attached listing. _ Acopy ofthis notice was given tothe fling party a the counter. D_Acopy ofthis notice was placed in the bin located at this office and identified as the location for the above {aw firm's collection of file-siamped documents. Date of Mailing: 3/26/2024 | declare under penalty of perjury that the forgoing Is rue and correct. Executed on 3/26/2024 at San Bemardino, CA. By — Deputy ClerkHELERRoNE NO: T — EMAL ADDRESS: TRIAL SETTING CONFERENCE OATE: __ ATTORNEY FOR ame: UUnunaen case: | PAK (Opto Luteo Case: ‘SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN BERNARDINO [couRTHOUSEADERESS ST RNARDING DEFERORT INITIAL TRIAL SETTING CONFERENCE STATEMENT OAS NOEES INSTRUCTIONS: All applicable boxes must be checked, and the specified information must be provided. This document served at loast 4 ior to the tri 1 1. Party or panties (answer one}: a. C1] This statements submitted by party (name): b. Ey This statement is submitted jointly by parties (names): 2. Service of Complaint on all parties has [] has not (] been completed. 3. Service of Gross-Complaint on all parties has C] has not C] en completed, 4. Description of case in Complaint 5. Description of case in Cross-Complaint 6. Has all discovery been completed: Yes ] No 1] Date aiscovery anticipated to be completed: 7. Doyou agree to mediation? Yes [] No [1 Please check type agreed to: Private: Court sponsored 8. Related cases, consolidation, and coordination: Please attach a Notice of Related Cask Ci Amotion to 1 consolidate [) Trial dates requested: Yes [] No [J Avaliable date: Time estimat 8. Other issues: Ci The following additional matters are requested to be considered by the Court 10. Moet and Confer: Gr The partes represent that they have met and conferred on all subjects required by California Rules of Court, Rule 3.724 Gi The partes have entered into the folowing stipuiation(s): 11, Total number of pages attached (any): _ | am completely famiar with this case and wil be fully prepared to discuss the status of discovery and alternative dispute resolution, as well as other issues raised by his statement, and will possess tho authority to enter into stipuations on these |ssues atthe ime of the intial Trial Setting Conference, including the waiton authority ofthe party where requited. Date: (TYPE OR PRINT NAME} (SIGNATURE OF PARTY OR ATTORNEY (IYPE OR PRINT NAME} (GIGNATURE OF PARTY OR ATTORNEY = _, 1 - Form # 13.09001-960 INITIAL TRIAL SETTING CONFERENCE STATEMENT Mandatory Form[ | eteptonewo:— } Eat aooRess. ‘TRIAL SETTING CONFERENCE DATE: Ayaan: UnuniTeD case: FIXNO (Ontona LoateD case: | [SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN BERNARDINO | ‘COURTHOUSE ADDRESS: [pcan —— [ perenoawe INITIAL TRIAL SETTING CONFERENCE STATEMENT OS HABER INSTRUCTIONS: All applicable boxes must be checked, and the specified information must bo provided. This document ‘must be filed an least 18 days pri 7 1. Party or parties (answer one): 2. EF This statement is submitted by party (name): '. J This statements submited jolly by parties (names. 2. Service of Complaint on al parties has C] has not [1 been completed. 3. Service of Cross-Complaint on all parties has C] has not [1 been completed. 4. Description of case in Complaint: 5. Description of case in Cross-Complaint: 6. Has all discovery been completed: Yes [] No [1 Date discovery anticipated to be completed: 7. Do you agree to mediation? Yes [] No [1] Please check type agreed to: Private: Court-sponsored: 8. Related cases, consolidation, and coordination: Ploase attach a Notice of Related Case, CO Amotion to [ consolidate] Trial dates requested: Ye Time estimate: No Available datos:__ 8. Other issues: D The fotowing additional matters are requosted to be considered by the Court: 10. Meet and Confer: Cr The partes represent that they have met and conferred on all subjects required by California Rules of Court, Rule 3.724, Ci The parties have entered into the folowing stipulations): 11. Total number of pages attached (ifany): |lam completely familar with this case and wil be fully prepared to discuss the status of discovery and alternative dispute resolution, as well as other issues raised by his statement, and wil possess the authority to enter into stipulations on these issues atthe ime of the Intal Trial Setting Conference, including the witlen authority of the parly where requited. Date: es TYPE OR PRINT NAME} ~ (GIGNATURE OF PARTY OR ATTORNEY (TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR ATTORNEY For 13.09001-280 INITIAL TRIAL SETTING CONFERENCE STATEMENT ‘Mandotery Fam