AGK Sierra de Montserrat, L.P. v. Comerica Bank

Filing 84

FINAL PRETRIAL ORDER signed by Chief District Judge Kimberly J. Mueller on 1/25/22 SETTING the Bench Trial for 4/26/2022 at 09:00 AM in Courtroom 3 (KJM) before Chief District Judge Kimberly J. Mueller. Trial is anticipated to last three to five days. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AGK Sierra de Montserrat, L.P.,

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Plaintiff,

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No. 2:15-cv-01280-KJM-DB
FINAL PRETRIAL ORDER

v.
Comerica Bank, et al.,

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Defendants.

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On January 20, 2022, the court conducted a final pretrial conference. Timothy J. Gorry

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appeared for plaintiff AGK Sierra de Montserrat. Frank Perrott appeared for defendant Comerica

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Bank. After hearing, and good cause appearing, the court makes the following findings and

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orders:

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JURISDICTION AND VENUE

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This court has subject matter jurisdiction based on 28 U.S.C. § 1331. This district and

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Sacramento in particular is an appropriate venue because the alleged events occurred within this

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district and the geographic area served by the Sacramento courthouse. The parties do not contest

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this court’s jurisdiction or venue

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JURY / NON-JURY

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This matter will be tried as a bench trial.

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UNDISPUTED FACTS

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The court accepts the parties’ stipulation to the following agreed-upon undisputed facts:
1.

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In 2005, Westwood Montserrat, Ltd. ("Westwood") began developing a residential
subdivision located in Loomis, California, commonly known as Sierra de Montserrat.

2.

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As the developer, Westwood recorded a Declaration Of Covenants, Conditions and
Restrictions for Sierra de Montserrat (the "CC&Rs").

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3.

The CC&Rs reserved certain rights for Westwood as the development's "Declarant.”

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4.

To develop the property, Westwood borrowed money from Comerica.

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5.

The loan was secured by a Construction Trust Deed with Assignment of Rents, Security

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Agreement and Fixture Filing (the "Trust Deed").
6.

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The Trust Deed, among other things, assigned to Comerica certain rights in the
Development in the event of Westwood's default.

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7.

Westwood defaulted on its loan obligations to Comerica.

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8.

Just days before the foreclosure sale, Westwood recorded a Supplemental Declaration

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Regarding Construction Obligation and Memorandum of Repurchase Rights (the

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"Supplemental Declaration"), which purportedly granted Westwood additional rights and

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benefits as the Declarant.

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9.

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nonjudicial foreclosure pursuant to the Trust Deed.
10.

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On November 6, 2009, Comerica acquired 51 lots in Sierra de Montserrat following a

On March 19, 2010, Don Murphy, on behalf of Angelo Gordon and Kinetic, made a
written offer to purchase 51 lots in Sierra de Montserrat through a written letter.

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Keith Maruska was the main point of contact for Comerica during the negotiation of a

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Purchase And Sale Agreement And Joint Escrow Instructions, dated May 17, 2010

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(“PSA”).

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12.

During the time period relevant to this lawsuit, Keith Maruska was a manager in

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Comerica’s California ORE Department - Western Market, a part of Comerica’s Special

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Assets Group.

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13.

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In late March or early April 2010, at Keith Maruska’s direction, Comerica’s attorneys
prepared the initial draft of the PSA.

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14.

Don Murphy is a principal of Kinetic.

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Nader Pakfar acted as counsel for AGK, Angelo Gordon, and Kinetic in their negotiations

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with Comerica.
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negotiations with Comerica.
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First American assigned Arah Tresler, an Escrow Specialist, to assist AGK and Comerica
with the transaction.

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Steve Chamberlain acted as Comerica’s real estate agent for the sale of Comerica’s lots in
the Development.

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Francis Ferrer acted as inside counsel for Comerica in its negotiations with AGK, Angelo
Gordon, and Kinetic.

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Alvin Galstian acted as counsel for AGK, Angelo Gordon, and Kinetic in their

After Angelo Gordon and Kinetic submitted the LOI to Comerica, the parties began
negotiating the PSA.

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On May 17, 2010, Angelo Gordon Real Estate, Inc. (“AGRE”), on the one hand, and
Comerica, on the other, entered into the PSA.

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22.

On June 16, 2010, AGRE and Comerica entered into the First Amendment of the PSA.

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On June 18, 2010, AGRE and Comerica entered into the Second Amendment of the PSA.

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On June 25, 2010, AGRE and Comerica entered into the Third Amendment of the PSA.

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Kinetic and Angelo Gordon created a special purpose entity, AGK, to acquire 51 lots in

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the Development from Comerica.

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AGRE assigned its interest in the PSA to AGK.

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On June 30, 2010, Keith Maruska executed a written Assignment of Declarants Rights

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(the “Assignment”).

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First American Title Company recorded the Assignment.

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On April 17, 2015, AGK made written demand to Comerica to indemnify AGK for

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lawsuits Westwood filed against AGK and to pay for the attorneys’ fees and expenses

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AGK incurred in defense of those actions.

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30.

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On or about April 24, 2015, Comerica sent a written response indicating that Comerica
would not indemnify AGK, as AGK had demanded.

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Comerica has not paid any money to AGK, at any time, in response to AGK’s demand

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that Comerica indemnify AGK.

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FACTS RESOLVED BY PLEADINGS

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The following facts are undisputed, and the court accepts the parties’ stipulation that these facts

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are established for the purposes of trial without the need to further elicit such fact through

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testimony or documentary evidence:

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32.

Comerica’s Answer [Docket No. 5], ¶19, admits Comerica “refuses to indemnify AGK

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from and against claims and causes of action asserted by Westwood against AGK in both

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lawsuits brought by Westwood in the Superior Court of the State of California.”

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33.

Comerica’s Answer [Docket No. 5], ¶23, admits “AGK and Comerica entered into a

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written indemnification agreement by and through the Assignment [the Assignment of

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Declarants Rights attached to the Complaint as Exhibit A].” Although Comerica agrees

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that its execution of the Assignment containing an indemnity provision in favor of AGK is

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an established fact, Comerica intends to offer further testimonial and documentary

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evidence of the facts and circumstances surrounding the execution of the Assignment in

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support of its affirmative defenses based on failure of consideration and mistake of fact

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and as extrinsic evidence regarding the meaning of the indemnity provision.

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DISPUTED FACTUAL ISSUES

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The following factual issues are disputed:

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1. The nature, extent, scope, and effect of any communications between Comerica, on the one

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hand, and AGK, Angelo Gordon Real Estate, Inc. and/or Kinetic Homes, on the other hand,

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concerning the Assignment of Declarants Rights.

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2. The nature, extent, scope, and effect of any communications between Comerica, on the one

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hand, and AGK, Angelo Gordon Real Estate, Inc. and/or Kinetic Homes, on the other hand,

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about whether Comerica would agree to indemnify AGK, Angelo Gordon Real Estate, Inc.

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and/or Kinetic Homes from claims brought by Westwood Montserrat, L.P.

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3. The nature, extent, scope, and effect of any communications between Comerica, AGK,

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Angelo Gordon Real Estate, Inc., and/or Kinetic Homes, their attorneys, and other parties

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involved in the purchase and sale of the real property that is the subject of this action,

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including, without limitation, representatives of First American Title Company (the title

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company) and VierraMoore, Inc. (a subdivision consultant).

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4. The nature, basis and scope of the claims and allegations made by Westwood in certain
lawsuits it brought against AGK.
5. The date that AGK first incurred any loss or liability in connection with the claims for which
AGK seeks indemnity in this action.
6. The factual elements underpinning Comerica’s affirmative defense of unilateral mistake of
fact, including whether such mistake was caused by AGK.
SPECIAL FACTUAL INFORMATION FOR ACTION INVOLVING
CONTRACT
The parties have provided the following information as provided by Eastern District Local

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Rule 281(b)(6)(iii), as AGK’s claims are based on a contract between the parties:

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1. The contractual obligations at issue are contained in the Assignment. Comerica’s assignment

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of its declarant’s rights was required by a broader agreement between the parties, the terms of

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which are embodied in the PSA, as amended.

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2. The contract at issue is written.

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3. AGK alleges that Comerica breached the contract by failing and refusing to indemnify AGK

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under the terms of the Assignment Of Declarants Rights in connection with two lawsuits that

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Westwood Montserrat L.P. brought against AGK in which Westwood Montserrat’s claims

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were based, at least in part, on the theory that Westwood Montserrat remained the Declarant

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of the Sierra de Montserrat development and that Comerica was never the Declarant. More
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specifically, AGK alleges that, through the lawsuits, Westwood Montserrat claimed : (a) AGK

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was liable to Westwood Montserrat for Comerica’s attempts to act as Sierra de Montserrat’s

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Declarant by, among other things, rescinding the Supplemental Declaration; (b) AGK was

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liable to Westwood Montserrat for refusing to allow Westwood Montserrat, as the

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development’s Declarant, to repurchase AGK-owned lots in Sierra de Montserrat as provided

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for in the Supplemental Declaration Westwood Montserrat recorded before the foreclosure,

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despite that Comerica’s exercise of its then-held Declarant right to rescind the Supplemental

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Declaration; and (c) AGK is liable for a civil conspiracy with Comerica designed to deprive

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Westwood Montserrat of its Declarant rights based on, among other things, Comerica’s public

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claims that it had acquired Declarant rights for Sierra de Montserrat, Comerica’s recordation

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of the Assignment and Comerica’s rescission of the Supplemental Declaration Westwood

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Montserrat had recorded.

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4. Comerica alleges that it is entitled to partial rescission of the Assignment because its consent

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to the indemnity provision was given by mistake.
5. Comerica alleges that AGK’s breach of contract claims are barred by the statutes of

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limitation, because AGK incurred loss or liability in connection with the claims for which

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AGK seeks indemnity in this action more than four years prior to the filing of its complaint.

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6. Neither party has alleged a claim or defense of estoppel or waiver.

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7. AGK seeks the following relief: (a) monetary damages in an amount of at least $3,231,115;

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and (b) a judicial declaration confirming that Comerica has a contractual obligation pursuant

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to the Assignment to indemnify AGK against any loss, liability, claims, or causes of action

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arising out of Comerica’s position as “Declarant” under the Sierra de Montserrat CC&Rs that

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accrued before the date of the Assignment. AGK believes the declaration is necessary, as at

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least one of Westwood’s lawsuits against AGK is ongoing and Westwood has recently

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threated additional litigation against AGK.

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8. Comerica disputes that AGK is entitled to a judicial declaration regarding the parties’ rights

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and responsibilities with respect to any prospective claims or litigation. Comerica is unaware
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of any “threatened additional litigation against AGK,” and any such ongoing lawsuits or

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litigation have not been the subject of this action or any of the discovery herein.

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9. AGK’s measure of damages stems from the amounts of attorneys’ fees and costs it spent

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defending against claims Westwood Montserrat, L.P. brought against AGK in various actions

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where the claims and allegations arose from Westwood’s assertion that Comerica did not

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obtain the Declarant rights through foreclosure (specifically, Placer County Superior Court

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Case Nos. SCV0029131 and SCV0032447). AGK’s itemization of these amounts is as

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follows: (a) attorneys’ fees and costs incurred in Case No. SCV0029131, in the amount of at

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least $1,000,311; and (b) attorneys’ fees and costs incurred in Case No. SCV0032447, in the

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amount of at least $1,377,346. AGK take the position those damages continue to accrue, as

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litigation is ongoing in Case No. SCV0032447.

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Also, as part of its damages, AGK asserts that it is entitled to recoup the costs of litigating

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against Comerica in this action, which was a necessary consequence of Comerica’s refusal to

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provide indemnification. AGK calculates the amount of those damages as at least $853,458,

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and says this component of AGK’s damages continues to accrue as litigation continues.

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10. Comerica disputes that AGK is entitled to recover the attorneys’ fees and costs it incurred

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prosecuting its indemnity claim against Comerica as damages.
DISPUTED EVIDENTIARY ISSUES
The parties do not anticipate any unique or unusually complex evidentiary issues at this

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time and therefore do not plan to file any motions in limine with one possible exception related to

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bifurcation as noted below.

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RELIEF SOUGHT

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Plaintiff seeks monetary damages in an amount of at least $3,231,115.

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Plaintiff also seeks a judicial declaration confirming that Comerica has a contractual

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obligation pursuant to the Assignment to indemnify AGK against any loss, liability, claims, or

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causes of action arising out of Comerica’s position as “Declarant” under the Sierra de Montserrat

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CC&Rs that accrued before the date of the Assignment.

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Defendant seeks judgment in its favor.
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POINTS OF LAW
The parties have alerted the court to legal disputes in their joint pretrial statement. Trial

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briefs addressing these points more completely shall be filed with this court no later than seven

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days prior to the date of trial in accordance with Local Rule 285.

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ABANDONED ISSUES

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No issues or defenses have been abandoned by parties.
WITNESSES
Plaintiff’s and Defendant’s witnesses are both listed in Joint Exhibit A. Each party may
call any witnesses designated by the other.
A.

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The court will not permit any other witness to testify unless:
(1)

The party offering the witness demonstrates that the witness is for the

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purpose of rebutting evidence that could not be reasonably anticipated at

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the pretrial conference, or

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(2)

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The witness was discovered after the pretrial conference and the proffering
party makes the showing required in “B,” below.

B.

Upon the post pretrial discovery of any witness a party wishes to present at trial,

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the party shall promptly inform the court and opposing parties of the existence of

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the unlisted witnesses so the court may consider whether the witnesses shall be

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permitted to testify at trial. The witnesses will not be permitted unless:

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(1)

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The witness could not reasonably have been discovered prior to the
discovery cutoff;

(2)

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The court and opposing parties were promptly notified upon discovery of
the witness;

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(3)

If time permitted, the party proffered the witness for deposition; and

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(4)

If time did not permit, a reasonable summary of the witness’s testimony

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was provided to opposing parties.

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EXHIBITS, SCHEDULES AND SUMMARIES

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Plaintiff’s and Defendant’s exhibits are listed in Joint Exhibit List B. The parties are

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ordered to provide a supplemental exhibit list within two weeks of the depositions of Louis

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Friedel and Frances Ferrer as allowed below. The parties stipulate that the email

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communications that are separately listed in the parties’ Joint Exhibit List are authentic and were

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transmitted on or about the date and time reflected in the emails. At trial, Joint Exhibits shall be

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identified as JX and listed numerically, e.g., JX-1, JX-2.

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All exhibits must be premarked.

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The parties must prepare exhibit binders for use by the court at trial, with a side tab

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identifying each exhibit in accordance with the specifications above. Each binder shall have an

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identification label on the front and spine.

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The parties must exchange exhibits no later than twenty-eight days before trial. Any
written objections to exhibits are due no later than fourteen days before trial.

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A.

The court will not admit exhibits other than those identified on the exhibit lists

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referenced above unless:

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1.

The party proffering the exhibit demonstrates that the exhibit is for the

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purpose of rebutting evidence that could not have been reasonably

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anticipated, or

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2.

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The exhibit was discovered after the issuance of this order and the
proffering party makes the showing required in Paragraph “B,” below.

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B.

Upon the discovery of exhibits after the discovery cutoff, a party shall promptly

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inform the court and opposing parties of the existence of such exhibits so that the

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court may consider their admissibility at trial. The exhibits will not be received

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unless the proffering party demonstrates:

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1.

The exhibits could not reasonably have been discovered earlier;

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2.

The court and the opposing parties were promptly informed of their

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existence; and
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3.

The proffering party forwarded a copy of the exhibits (if physically

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possible) to the opposing party. If the exhibits may not be copied the

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proffering party must show that it has made the exhibits reasonably

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available for inspection by the opposing parties.

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DISCOVERY DOCUMENTS
The parties expect to offer the following discovery documents at trial:
1. AGK expects to offer Comerica’s responses to AGK’s first set of Requests For Admissions
(served August 14, 2019).

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2. Comerica expects to offer selected portions of the deposition transcripts of Don Murphy and

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Louis Freidel, who were designated as AGK’s persons most knowledgeable regarding a

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variety of subjects.

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FURTHER DISCOVERY OR MOTIONS
The parties have completed discovery, with the exception of the depositions of Louis

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Friedel and Frances Ferrer; the court approves the parties’ agreement to schedule and complete

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these depositions no later than February 17, 2022.

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ADDITIONAL STIPULATIONS

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The parties stipulate, and jointly request that, the court take judicial notice of the

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pleadings, court filings, and other litigation documents listed in their Joint Exhibit List. This

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stipulation and request relates only to the existence of the documents and the fact that the

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statements and allegations contained in them were made by the party who authored the pleading,

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court filing or other litigation document. The parties do not agree, and expressly reserve the right

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to challenge at trial, that statements or allegations contained in those documents are actually true.

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This stipulation and request relates to the following exhibit numbers listed in the parties’ Joint

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Exhibit List: Exhibit Nos. 6, 8, 9, 10, 117, 118, 119, 126, 129, 130, 131, 132, 133, 134, 135, 136,

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137, 138, 139, 140, 141, 142, 143, 144, and 145.

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The court approves this stipulation and takes judicial notice as requested.

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AMENDMENTS AND DISMISSALS
The parties do not anticipate requesting any additional amendments to pleadings,

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dismissals, or additions or substitutions of parties.

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SETTLEMENT

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The parties engaged in a Mandatory Settlement Conference before the Honorable Deborah

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Barnes on August 3, 2021, and were unable to reach a settlement. There have been no further

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settlement discussions between the parties and the court orders no further court-convened

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settlement at this time.

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SEPARATE TRIAL OF ISSUES

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Comerica reserves its right to seek the bifurcation of trial for the purpose of having its

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affirmative defense based on mistake determined prior to the determination of all other issues.

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AGK does not currently believe that bifurcation of trial or any trial issue will make trial more

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efficient or less burdensome.

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The parties are ordered to exhaust meet and confer on this issue and schedule any

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remaining dispute for hearing on a motion in limine at the beginning of trial if necessary.

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IMPARTIAL EXPERTS OR LIMITATIONS OF EXPERTS

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Not applicable.
ATTORNEYS’ FEES
AGK and Comerica include requests for an award of attorneys’ fees, as costs, in the

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prayers for relief in their operative pleadings. The court will address any request for costs after

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trial, following the appropriate post-trial motion. AGK’s requests for attorneys’ fees may be

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subsumed in its indemnity damages, as AGK contends that applicable case law allows AGK to

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seek the attorneys’ fees and costs it expended to prosecute this indemnity action as part of its

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damages.

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TRIAL DATE AND ESTIMATED LENGTH OF TRIAL

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The bench trial is set for Tuesday, April 26, 2022 starting at 9:00 a.m. in Courtroom
Three before the Honorable Kimberly J. Mueller. Trial is anticipated to last three to five days.

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The parties are directed to Judge Mueller’s default trial schedule outlined on her web page on the

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court’s website, with a more detailed schedule to be provided by the courtroom deputy closer to

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trial.

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PROPOSED JURY VOIR DIRE AND PROPOSED JURY INSTRUCTIONS

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Not applicable.
OBJECTIONS TO THIS ORDER AND CONCLUSION

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Each party is granted fourteen days from the date of this order to file objections to the

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same. If no objections are filed, the order will become final without further order of this court.

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DATED: January 25, 2022.

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EXHIBIT A

Exhibit A Joint Witness List
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The parties may call the following witnesses at trial:

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Name

Address

Type

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Don Murphy

Can be reached through AGK’s counsel

Fact Witness

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Louis Friedel

Can be reached through AGK’s counsel

Fact Witness

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Keith Maruska

Can be reached through Comerica’s counsel

Fact Witness

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Francis Ferrer

Can be reached through Comerica’s counsel

Fact Witness

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Nader Pakfar

450 N. Roxbury Dr., Suite 700

Fact Witness

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Beverly Hills, CA 90210
Alvin Galstian

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9595 Wilshire Blvd., Suite 900

Fact Witness

Beverly Hills, CA 90212
Timothy Gorry

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10880 Wilshire Boulevard, 19th Floor, Los

Fact Witness

Angeles, CA 90024

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Jeffrey Lowenthal

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235 Pint Street, 15th Floor, San Francisco,
CA 94111

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Karen Balmer

Can be reached through Comerica’s counsel

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David Lardner

Can be reached through Comerica’s counsel

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Steve Chamberlain

301 University Ave., Suite 100, Sacramento,

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CA 95825
Arah Tresler

Address currently unknown

David Pratt

Address currently unknown

Curtis Westwood

12150 Tributary Point Dr., Suite 160, Gold
River, CA 95670

Tom Trost

3721 Douglas Blvd., Suite 300, Roseville,
CA 95661

Greg Maxim

3721 Douglas Blvd., Suite 300, Roseville,
CA 95661

Fact Witness

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Terri-Sue Sublett

Address currently unknown

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George Moore

2870 Gateway Oaks Dr., Suite 100,

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Sacramento, CA 95833
Jeff Wagner

1331 N. California Blvd., Fifth Floor, Walnut
Creek, CA 94596

EXHIBIT B

B–
EXHIBIT
ID

Exhibit List
BATES NO.

DESCRIPTION

2

Letter, dated August 27, 2010, from Curtis A. Westwood
to Don Murphy

WEST04626 –
WEST04627

4

Letter, dated April 18, 2011, from Timothy Gorry to
Curtis Sproul

WEST04613 WEST04615

5

Letter, dated April 22, 2011, from Gregory Maxim to
Robert C. and Jennielyn B. Kincade

WEST04616 –
WEST04618

6

Complaint For Declaratory Relief; Injunctive Relief; and
Nuisance, filed May 2, 2011, in Placer County Superior
Court Case No. SCV0029131

WEST03732 –
WEST03750

8

Westwood Montserrat, LTD’s Claim For Arbitration,
dated May 6, 2013, in JAMS Arbitration No. 1130005625

WEST03752 –
WEST03765

9

Westwood Montserrat, LTD’s Amended Claim For
Arbitration, dated August 20, 2013, in JAMS Arbitration
No. 1130005625

10

Ruling On Cross Motions For Summary Judgment On
Issue Of Declarant (Phase One), dated October 25, 2013,
in JAMS Arbitration No. 1130005625

15

Letter, dated November 9, 2012, from Gregory Maxim to
Timothy Gorry (with enclosures)

WEST04344 –
WEST04350

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Letter, dated November 21, 2012, from Timothy J. Gorry
to Gregory Maxim (with enclosures)

WEST01703 –
WEST01707

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Letter, dated December 5, 2012, from Gregory Maxim to
Timothy Gorry

WEST04341 –
WEST04343

21

Letter of Intent, dated March 19, 2010, from Don Murphy
to Steve Chamberlain

001342 –
001345

26

Email, dated May 13, 2010, from Keith W. Maruska to
Steve Chamberlain (with attachment)

COM002066 –
COM002112

27

Purchase and Sale Agreement and Joint Escrow
Instructions, dated May 19, 2010, by and between Angelo
Gordon Real Estate, Inc. and Comerica Bank

COM00465 –
COM00506

1

OFFERED

ADMITTED

EXHIBIT
ID

BATES NO.

DESCRIPTION

28

Email, dated May 21, 2010, from Keith W. Maruska to
Nader Pakfar

COM003499 –
COM003502

29

Email, dated May 25, 2010, from Alvin Galstian to Robin
Nieto

AGK000248 –
AGK000249

30

Email, dated May 27, 2010, from Keith W. Maruska to
Alvin Galstian

COM001725 –
COM001731

31

Email, dated May 28, 2010, from Nader Pakfar to Tim
Ward

AGK000404AGK000406

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Email, dated June 1, 2010, from Don Murphy to Keith W.
Maruska

33

Email, dated June 2, 2010, from Steve L. Chamberlain to
Keith W. Maruska

COM003456 –
COM003458

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Email, dated June 8, 2010, from Keith W. Maruska to
Nader Pakfar (with attachments)

COM001687 –
COM001695

37

Supplemental Declaration Regarding Construction
Obligation and Memorandum of Repurchase Right,
recorded October 28, 2009, DOC-2009-0092355

COM002682 –
COM002688

38

Email, dated June 16, 2010, from Keith W. Maruska to
Steve L. Chamberlain

39

Email, dated June 21, 2010, from Don to Keith W.
Maruska

COM000460 –
COM000463

43

Email, dated June 25, 2010, from Keith W. Maruska to
Nader Pakfar (with exhibits)

COM000955 –
COM000972

45

Email, dated June 25, 2010, from Arah Tresler to Nader
Pakfar

COM000929 –
COM000937

46

Email, dated June 25, 2010, from Keith W. Maruska to
Arah Tresler (with attachments)

COM000899 –
COM000910

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Email, dated June 25, 2010, from Nader Pakfar to Keith
Maruska

COM000849 –
COM000854

2

OFFERED

ADMITTED

EXHIBIT
ID

BATES NO.

DESCRIPTION

49

Email, dated June 28, 2010, from Alvin Galstian to Arah
Tresler (with attachments)

COM000282 –
COM000291

51

Assignment of Declarants Rights, recorded June 30, 2010,
DOC-2010-0049607-00

COM000287 –
COM000291

60

Email, dated June 16, 2010, from Keith W. Maruska to
Nader Pakfar (with attachments)

COM001657 –
COM001668

61

Email, dated June 18, 2010, from Keith W. Maruska to
Nader Pakfar (with attachments)

COM001632 –
COM001641

65

Email, dated June 03, 2010, from Cherri Kirchoff to
Nancy D. Kordoban

COM002755 –
COM002760

66

Email, dated June 03, 2010, from Nancy D. Kordoban to
Alvin Luckenbach

COM003267 –
COM003271

70

Email, dated June 28, 2010, from Francis Ferrer to Alvin
Luckenbach

COM000737 –
COM000739

72

Email, dated June 29, 2010, from Arah Tresler to Keith
W. Maruska (with attachments)

73

Email, dated June 30, 2010, from Karen Balmer to Arah
Tresler (with attachments)

COM002543 –
COM002558

100

Assignment And Assumption Of Purchase And Sale
Agreement, dated as of June 28, 2010, by and between
Angelo Gordon Real Estate, Inc. and AGK Sierra De
Montserrat, L.P.

FA0098 - 0149

101

Grant Deed, recorded June 30, 2010, DOC-20100049606-00

AGKCOM0000283 0000285

102

Bill Of Sale, Assignment And Assumption, dated as of
June 30, 2010

FA0090 - 0096

103

Rescission of Declaration of Restrictions, recorded June
30, 2010, DOC-2010-0049605-00

COM002184 002186

104

Letter, dated April 9, 2014, from Gregory L. Maxim to
Anthony R. Eaton

AGKCOM0000267 0000282

3

OFFERED

ADMITTED

EXHIBIT
ID

BATES NO.

DESCRIPTION

105

Letter, dated April 17, 2015, from Timothy Gorry to
Frank Perrott

106

Letter, dated April 24, 2015, from Frank Perrott to
Timothy Gorry

107

Bylaws of Sierra de Montserrat Owners Association

AGKCOM0000286 0000311

108

Eisner Law Firm Invoices from June 2011 to May 2015
for Westwood v. AGK, Placer County Superior Court Case
No. SCV0029131

EI0008497 –
0008635; AGKCOM0000647 0000710

109

Theodora Oringher Invoices from April 2015 to July 2020
for Westwood v. AGK, Placer County Superior Court Case
No. SCV0029131

AGKCOM0018602 0018708

110

Eisner Law Firm Invoices from February 2013 to
February 2015 for Westwood v. AGK, Placer County
Superior Court Case No. SCV0032447

AGKCOM0000833 0000909

111

Theodora Oringher Invoices from April 2015 to July 2020
for Westwood v. AGK, Placer County Superior Court Case
No. SCV0032447

AGKCOM0000711 –
0000832; AGKCOM0018709 0018800

112

Steyer Lowenthal Invoices from July 2013 to March 2020
for Westwood v. AGK, Placer County Superior Court Case
No. SCV0032447

AGKCOM0000910 –
0001014; AGKCOM0018801 0018828

113

Michelman & Robinson Invoices from September 2020
for Westwood v. AGK, Placer County Superior Court Case
No. SCV0032447

AGKCOM0018833 0018835

114

Theodora Oringher Invoices for AGK v. Comerica,
U.S.D.C. Case No. 2:15-cv-01280

AGKCOM0018481 –
0018601

115

Michelman & Robinson Invoices from September 2020
for AGK v. Comerica, U.S.D.C. Case No. 2:15-cv-01280

AGKCOM0018829 0018832

4

OFFERED

ADMITTED

EXHIBIT
ID

DESCRIPTION

116

Defendant Comerica Bank’s Responses To Plaintiff AGK
Sierra De Montserrat, L.P.’s First Set Of Requests For
Admission

117

Complaint filed by Westwood Montserrat, LTD, filed
September 30, 2010, in Placer County Superior Court
Case No. SCV0028027

118

Complaint For Damages And Other Relief, filed January
25, 2013, in Placer County Superior Court Case No.
SCV0032447

WEST04706 –
WEST04815

119

First Amended Complaint For Damages And Other
Relief, filed April 23, 2013, in Placer County Superior
Court Case No. SCV0032447

WEST00059 –
WEST00079

120

Trustee’s Deed Upon Sale, recorded November 6, 2009,
as document number 20090095778

COM01768 –
COM01772

121

Email, dated June 28, 2010, from Nader Pakfar to Arah
Tresler (with attachments)

122

Settlement Agreement and Release, dated November 4,
2011, by and between AGK Sierra De Montserrat, L.P.
and Wildlife Heritage Foundation

123

Letter, dated March 8, 2011, from Louis Friedel to Board
of Directors of the Sierra de Montserrat Owners
Association

WEST08632

124

Sierra de Montserrat Owners’ Association Board Minutes
from Meeting on March 14, 2011

WEST08634 –
WEST08635

125

Request for Resolution, dated March 14, 2011, from
Curtis C. Sproul

WEST04604 –
WEST04615

126

Notice of Motion and Motion By Defendants AGK Sierra WEST05208 –
De Montserrat, L.P., Robert C. Kincade And Jennielyn B. WEST05215
Kincade To Compel Arbitration And Stay Claims Pending
Against Them Pending Arbitration, filed June 16, 2011, in
Placer County Superior Court Case No. SCV0029131

BATES NO.

5

OFFERED

ADMITTED

EXHIBIT
ID

BATES NO.

DESCRIPTION

127

Email, dated August 17, 2012, from Anthony Eaton to
Gregory Maxim (with attachments)

WEST01691 –
WEST01695

128

Letter, dated January 30, 2014, from Gregory Maxim to
Hon. Cecily Bond

WEST05286 –
WEST05288

129

Claimant Westwood Montserrat’s Statement of Phase II
Issues and Damages, dated February 3, 2014, in JAMS
Arbitration No. 1130005625

WEST04906 –
WEST04936

130

Response to Statement of Phase II Issues and Damages,
dated February 10, 2014, in JAMS Arbitration No.
1130005625

WEST04939 –
WEST04952

131

Order Re Westwood Montserrat, Ltd’s Petition To Vacate
Final Arbitration Award, filed September 16, 2015, in
Placer County Superior Court Case No. SCV0029131

WEST04984 –
WEST04985

132

Motion for Relief from Order Staying Action, filed June
18, 2014, in Placer County Superior Court Case No.
SCV0032447

WEST04875 –
WEST04887

133

Defendants AGK Sierra De Montserrat, L.P., Don
Murphy, Angelo Gordon Real Estate, Inc., Kinetic
Homes, And Kinetic Partners, Inc.’s Notice of Motion
And Motion for Summary Judgment, filed March 2, 2017,
in Placer County Superior Court Case No. SCV0032447

WEST06418 –
WEST06425

134

Order Granting Defendants’ Motion To Compel
Arbitration And Stay Claims Pending Against Them
Pending Arbitration, filed October 21, 2011, in Placer
County Superior Court Case No. SCV0029131

WEST05217 –
WEST05218

135

Order After Conference Call, dated June 4, 2013, in
JAMS Arbitration No. 1130005625

WEST05237 –
WEST05238

136

Conference And Scheduling Order Re Phase 2, dated
January 28, 2014, in JAMS Arbitration No. 1130005625

WEST04901 –
WEST04903

137

Order Following Telephonic Conference Re Phase II,
dated February 27, 2014, in JAMS Arbitration No.
1130005625

WEST04955 –
WEST04958

6

OFFERED

ADMITTED

EXHIBIT
ID

BATES NO.

DESCRIPTION

138

Order Following Telephonic Conference, dated June 6,
2014, in JAMS Arbitration No. 1130005625

WEST04961 –
WEST04963

139

Final Award, dated April 2, 2015, in JAMS Arbitration
No. 1130005625

WEST05349 –
WEST05362

140

Ruling On Submitted Matter, filed September 6, 2013, in
Placer County Superior Court Case No. SCV0032447

WEST04889 –
WEST04891

141

Order Re Westwood Montserrat, Ltd’s Motion For Relief
From Order Staying Action, filed September 14, 2015, in
Placer County Superior Court Case No. SCV0032447

WEST03994 –
WEST04002

142

Fourth Amended Complaint For Damages And Other
Relief, filed February 3, 2017, in Placer County Superior
Court Case No. SCV0032447

WEST05021 –
WEST05050

143

Law And Motion Minutes, dated June 6, 2017, in Placer
County Superior Court Case No. SCV0032447

WEST05838 –
WEST05847

144

Tentative Decision Re Bifurcated Issue Of Affirmative
Defenses, filed May 2, 2018, in Placer County Superior
Court Case No. SCV0032447

WEST09420 –
WEST09453

145

Tentative Decision Re Bifurcated Issue Of Affirmative
Defenses, filed June 29, 2018, in Placer County Superior
Court Case No. SCV0032447

WEST09455 –
WEST09463

7

OFFERED

ADMITTED