Flagship West LLC, et al v. Excel Realty Partner, et al

Filing 544

JUDGMENT signed by Judge Oliver W. Wanger on 9/28/2011. (Kusamura, W)

1
2
3

TRAINOR FAIRBROOK
JOHN D. FAIRBROOK (SBN 105115)
980 Fulton Avenue
Sacramento, California 95825
Telephone: [phone]
Facsimile: [phone]

4

kvp:3807001.934520.1

5

LAW OFFICES OF WHITNEY F. WASHBURN
WHITNEY F. WASHBURN (SBN 106461)
1 Natoma Street
Folsom, California 95630
Telephone: [phone]
Facsimile: [phone]

6
7
8
9

Attorneys for Plaintiffs
FLAGSHIP WEST, LLC, MARVIN G. REICHE
and KATHLEEN REICHE

10

UNITED STATES DISTRICT COURT

At t orneys At Law

980 Fulton Avenue
SACRAMENTO, CALIFO RNIA 95825
Telephone: [phone]
Facsimile: (916) 929 -7111

TRAINOR FAIRBROOK

11

EASTERN DISTRICT OF CALIFORNIA (FRESNO)

12
13
14

FLAGSHIP WEST, LLC, a California
limited liability company, MARVIN G.
REICHE, and KATHLEEN REICHE,

15
16
17
18
19
20
21

Case No. CIV. F-02-5200 REC DLB
JUDGMENT

Plaintiffs,
Trial Date:
Action Filed:
Judge:

v.
EXCEL REALTY PARTNERS, L.P., a
Delaware limited partnership, NEW
PLAN EXCEL REALTY TRUST, INC.,
a Maryland corporation, THE MONEY
STORE COMMERCIAL MORTGAGE,
INC., a corporation, FIRST UNION
SMALL BUSINESS CAPITAL, a North
Carolina corporation, and DOES 1
through 50, inclusive,

22

Defendants.

23
24
25
26
27
28
JUDGMENT

November 20, 2003
February 21, 2002
Honorable Oliver W. Wanger

1
2
3
4
5
6
7
8
9
10

At t orneys At Law

980 Fulton Avenue
SACRAMENTO, CALIFO RNIA 95825
Telephone: [phone]
Facsimile: (916) 929 -7111

TRAINOR FAIRBROOK

11

On December 3, 2003, a jury returned verdicts in favor of Plaintiffs, awarding Plaintiffs
$1,480,740 in contract damages. Plaintiffs then elected the remedy of rescission. Following
post-judgment proceedings, judgment was entered on December 14, 2006, and amended June 15,
2007, which judgment was appealed to the United States Court of Appeals for the Ninth Circuit.
On July 2, 2009, the Court of Appeal vacated the June 15, 2007, judgment, after which it
remanded the matter to this court. Following proceedings on remand, this Court issued its
Memorandum Decision and Order Granting Plaintiffs' Motion for Interpretation of Lease and
Denying Defendant's Motion to Strike and/or For Leave to File Sur-Reply Brief, its Memorandum
Decision and Order Re Defendant's Motion to Strike and Plaintiff's Request for Entry of
Judgment of Rescission and for Prejudgment Interest; and its Memorandum of Decision and
Order regarding Defendants' Motion to Reconsider Decision and Order dated July 5, 2011.

12

JUDGMENT IS ENTERED AS FOLLOWS:

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

1.

The Ground Lease ("Lease") entered into between Plaintiffs and Defendant, EXCEL

REALTY PARTNERS L.P., (attached as Exhibit B to Plaintiffs' Second Amended Complaint),
signed by the individual Plaintiffs as guarantors in their individual capacities to pay rent and
perform all covenants, is rescinded from its date of execution, and such Lease shall have no
further force and effect, as if all Plaintiffs and Defendants had not entered into and executed the
Lease;
2.

Plaintiffs FLAGSHIP WEST, LLC, MARVIN G. REICHE, and KATHLEEN

REICHE, and each of them, are awarded $ 2,134,430 for damages in rescission and consequential
damages resulting from Defendants' breach of contract following application of credits due
Defendants, plus pre-judgment interest on $214,350, at the rate of $58.73 per day, from and after
April 27, 2001 through the date of judgment in the amount of $233,716.68, and therefore shall
recover from Defendants EXCEL REALTY PARTNERS, L.P. and NEW PLAN EXCEL
REALTY TRUST, INC., jointly and severally, a total judgment of $2,358,146.68;
3.

Plaintiffs shall recover their costs as allowed by law upon filing of a Cost Bill as

provided in Rule 54-292 of this Court;

28
JUDGMENT

-1-

1
2

4.

Any motion for attorney's fees shall be filed within 28 days of the date of entry of

this judgment as provided in Local Rule 54-293 of this Court.

3
4
5
6
7

IT IS SO ORDERED.
Dated:

8

September 28, 2011

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

DEAC_Signature-END:

9
10

emm0d64h

At t orneys At Law

980 Fulton Avenue
SACRAMENTO, CALIFO RNIA 95825
Telephone: [phone]
Facsimile: (916) 929 -7111

TRAINOR FAIRBROOK

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
JUDGMENT

-2-