Meisel et al v. Kaufman et al

Filing 139

ORDER RE HEARING AND SUPPLEMENTAL BRIEFING. Signed by Judge Beeler on 7/29/2011. (lblc1, COURT STAFF) (Filed on 7/29/2011)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

Northern District of California

10

Oakland Division
ANDREW H. MEISEL, et al.,

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

Plaintiffs,
v.

No. C 10-01786 LB
ORDER RE HEARING AND
SUPPLEMENTAL BRIEFING

13
MARK KAUFMAN, et al.,
14
15
16

Defendants.
_____________________________________/
Plaintiffs’ motion to enforce and Defendants’ cross-motion are currently pending with a hearing

17

on the motions scheduled for August 4, 2011. Plaintiffs’ Motion, ECF No. 85; Defendants’ Cross-

18

Motion, ECF No. 98.1 In Defendants’ reply brief, they raise new evidence for the first time, arguing

19

that the entities that own the properties described in paragraph one of the settlement agreement

20

actually are Vanowen Canoga Apartments LLC and Woodman VN Apartments LLC. Defendants’

21

Reply, ECF No. 134 at 5. Plaintiffs requested the opportunity to address this newly-raised evidence.

22

Plaintiffs’ Letter, ECF No. 135 at 2-3. Defendants did not oppose this request but requested that the

23

hearing be continued to a date after August 19, 2011, if it is continued. Defendants’ Letter, ECF No.

24

136 at 1-2. Before the court could respond to Plaintiffs’ request, they filed an objection to the

25

newly-raised evidence, arguing that the court should disregard it because it was raised for the first

26

time in Defendants’ reply, is a sham, is irrelevant, and is excluded by the mediation privilege and

27
28

1

Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page
number at the top of the document, not the pages at the bottom.
C 10-01786 LB
ORDER RE HEARING AND SUPPLEMENTAL BRIEFING

1
2

bar on extrinsic evidence. Plaintiff’s Objection, ECF No. 137 at 3.
The court ORDERS Plaintiffs to file a supplemental brief of no more than five pages addressing

3

the newly-raised evidence by August 4, 2011. The court CONTINUES the hearing on the cross-

4

motions to August 25, 2011.

5
6

Additionally, having reviewed the parties’ papers, the court lays out the issues it intends to
address at the hearing:

7

Preliminary Issues

8

1. Whether either party has made a prima facie showing that there is an
enforceable settlement agreement (i.e., whether the agreement is complete and
both parties agreed to the material terms of the settlement);

9
10

a. Whether the failure to explicitly allocate certain transaction costs and
procedures renders the settlement agreement too indefinite too enforce;

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11
b. Given the newly-raised evidence, whether there is an issue of mutual
mistake that requires recission or modification of the settlement
agreement;

13
14

c. What is the effect of the cancellation of the certificate of formation for
Vanowen Canoga Apartments LLC;

15

Evidentiary Issues

16

2. Assuming there is an enforceable contract, whether extrinsic evidence may be
introduced to show a latent ambiguity;

17
18

a. Assuming that extrinsic evidence may be introduced, whether evidence of
the parties’ correspondence and conduct after April 26, 2011 may be
submitted;

19

22

3. Whether, pursuant to the holding in Callie v. Near, 829 F.2d 888, 890 (9th
Cir. 1987), the court must conduct an evidentiary hearing (i.e., are there any
disputes as to the existence of a settlement agreement or any of its material
terms that requires the court to give the parties an opportunity to present their
evidence and challenge the evidence offered by the other party at an
evidentiary hearing);

23

Settlement Agreement Terms Issues

24

4. Whether Plaintiffs are entitled to acquire 100% member interests in 7410
Woodman Street, LLC, and 20615 Vanowen Street Apartments, LP
(paragraph one);

20
21

25
26

a. If so, whether Defendants may remove any or all assets from the entities
besides title to the properties referenced in the entities’ names;

27
28

b. Specifically, whether Defendants may remove Vanowen LP’s interest in
Midland 256 Rampart LP and Woodman LLC’s interest in Midland 256
Rampart LP and Midland Haynes Palm LP;
C 10-01786 LB
ORDER RE HEARING AND SUPPLEMENTAL BRIEFING

2

1
2

c. Whether the law mandates the transfer of the security deposits regardless
as to which option Plaintiffs choose;

3

d. Whether the deferred maintenance funds must be transferred;

4

5. Whether Defendants must pay the costs associated with increasing Plaintiffs’
share in the Pure Office Tower to a 30% undivided tenancy in common
interest and placing Plaintiffs on title with the lender’s consent (paragraph
eight);

5
6

a. What is the usual local custom as to which party bears the costs required
to secure a lender’s consent to placing a new entity on the title to a
property;

7
8

6. Whether Defendants must pay a proportionate share of the transaction costs
(e.g., escrow fees) associated with the transfers (paragraphs one and seven);

9
10

a. What are the usual local customs with regard to the allocation of the usual
transaction costs associated with the transfer of real property;

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11
7. Whether the parties must use the purchase agreements submitted by Plaintiffs
(paragraph ten);

13

a. What is the usual local custom regarding the form and content of such
purchase agreements;

14
b. What forms have the parties used in other transactions.
15
16

To ensure that the parties and the court are prepared to discuss these issues in an expeditious

17

manner, the court further ORDERS the parties to complete and file the attached chart by 3:00 p.m.

18

on August 15, 2011. A Microsoft Word or WordPerfect copy should be sent to

19

[e-mail] at the same time. The parties’ position statements may not be more than

20

250 words per issue. The position statements need not repeat the legal standards advanced by the

21

parties in their briefs. Instead, the position statements should focus on applying the law to the

22

specific language of the settlement agreement and the other relevant facts. The parties’ lists of

23

evidence and legal authorities supporting their positions are limited to five items per issue.

24

///

25

///

26

///

27

///

28

///

C 10-01786 LB
ORDER RE HEARING AND SUPPLEMENTAL BRIEFING

3

1

Additionally, the court ORDERS the parties and any individuals who submitted declarations in

2

support of the motions to personally attend the hearings and to be prepared to address any factual

3

questions that the court might have.

4
5

IT IS SO ORDERED.
Dated: July 29, 2011
_______________________________
LAUREL BEELER
United States Magistrate Judge

6
7
8
9
10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

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

C 10-01786 LB
ORDER RE HEARING AND SUPPLEMENTAL BRIEFING

4

Pre-Hearing Issues Chart in Meisel, et al. v. Kaufman, et al., C 10-01786 LB
Issue

Short Statement of Party’s Position

Preliminary Issues
Whether the party has made a prima facie
showing that there is an enforceable
settlement agreement (i.e., whether the
agreement is complete and both parties
agreed to the material terms of the
settlement)
Whether the failure to explicitly allocate
certain transaction costs and procedures
renders the settlement agreement too
indefinite too enforce
Given the newly-raised evidence, whether
there is an issue of mutual mistake that
requires recission or modification of the
settlement agreement
What is the effect of the cancellation of the
certificate of formation for Vanowen
Canoga Apartments LLC
Evidentiary Issues
Assuming there is an enforceable contract,
whether extrinsic evidence may be
introduced to show a latent ambiguity
Assuming that extrinsic evidence may be
introduced, whether evidence of the parties'
correspondence and conduct after April 26,
2011 may be submitted

C 10-01786 LB
ORDER RE HEARING AND SUPPLEMENTAL BRIEFING

5

Evidence and Legal Authorities
Supporting Party’s Position

Issue

Short Statement of Party’s Position

Whether, pursuant to the holding in Callie
v. Near, 829 F.2d 888, 890 (9th Cir. 1987),
the court must conduct an evidentiary
hearing (i.e., are there any disputes as to
the existence of a settlement agreement or
any of its material terms that requires the
court to give the parties an opportunity to
present their evidence and challenge the
evidence offered by the other party at an
evidentiary hearing)
Settlement Agreement Terms Issues
Whether Plaintiffs are entitled to acquire
100% member interests in 7410 Woodman
Street, LLC, and 20615 Vanowen Street
Apartments, LP (paragraph one)
If so, whether Defendants may remove any
or all assets from the entities besides title
to the properties referenced in the entities’
names
Specifically, whether Defendants may
remove 20615 Vanowen Street
Apartments, LP’s interest in Midland 256
Rampart LP and 7410 Woodman Street,
LLC’s interest in Midland 256 Rampart LP
and Midland Haynes Palm LP
Whether the law mandates the transfer of
the security deposits regardless as to which
option Plaintiffs choose
Whether the deferred maintenance funds
must be transferred

C 10-01786 LB
ORDER RE HEARING AND SUPPLEMENTAL BRIEFING

6

Evidence and Legal Authorities
Supporting Party’s Position

Issue

Short Statement of Party’s Position

Whether Defendants must pay the costs
associated with increasing Plaintiffs’ share
in the Pure Office Tower to a 30%
undivided tenancy in common interest and
placing Plaintiffs on title with the lender’s
consent (paragraph eight)
What is the usual local custom as to which
party bears the costs required to secure a
lender’s consent to placing a new entity on
the title to a property
Whether Defendants must pay a
proportionate share of the transaction costs
(e.g., escrow fees) associated with the
transfers (paragraphs one and seven)
What are the usual local customs with
regard to the allocation of the usual
transaction costs associated with the
transfer of real property
Whether the parties must use the purchase
agreements submitted by Plaintiffs
(paragraph ten)
What is the usual local custom regarding
the form and content of such purchase
agreements
What forms have the parties used in other
transactions

C 10-01786 LB
ORDER RE HEARING AND SUPPLEMENTAL BRIEFING

7

Evidence and Legal Authorities
Supporting Party’s Position