Preview
1 FARID NOVIAN, ESQ. (SBN 113504)
farid@novianlaw.com
2 ALEXANDER KANDEL, ESQ. (SBN 306176)
alexanderk@novianlaw.com
3 AMBER MILLER, ESQ. (SBN 346793)
amberm@novianlaw.com
4 NOVIAN & NOVIAN, LLP
1801 Century Park East, Suite 1201
5 Los Angeles, California 90067
Telephone: (310) 553-1222
Facsimile: (310) 553-0222
6
Attorneys for Plaintiffs, LITTLE MAD FISH LLC, a California limited
7 liability company, and NIMA MASSOOMI DMD MED MD INC., a California corporation
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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF SAN MATEO
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12 LITTLE MAD FISH LLC, a California limited ) CASE NO: 23-CIV-02464
liability company; NIMA MASSOOMI DMD )
13 MED MD INC., a California corporation, ) Assigned to Hon. V. Raymond Swope; Dept. 23
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14 Plaintiffs, ) NOTICE OF ERRATA RE: PLAINTIFFS
) LITTLE MAD FISH LLC AND NIMA
) MASSOOMI DMD MED MD INC.’S FIRST
15 vs. ) AMENDED COMPLAINT
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16 )
LORTON AVENUE COMMERCIAL )
17 CONDOMINIUMS, a California Nonprofit )
Mutual Benefit Corporation; CARRICK & )
18 ENGLISH ASSOCIATES REAL ESTATE )
INC., a California Corporation; NKW )
19 ASSOCIATES, a California general )
partnership; JOHN S. KRUG, an individual; )
20 CAROL WINTERS, AS TRUSTEE OF THE )
DAN & CAROL WINTERS TRUST, DATED ))
21 APRIL 2, 1997, AS AMENDED AND )
RESTATED NOVEMBER 1, 2021; MARC )
22 POPE, an individual; CUSHMAN & )
WAKEFIELD U.S., Inc., a Missouri )
23 corporation; and DOES 1 through 50, )
inclusive, )
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Defendants. )
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NOTICE OF ERRATA
1 TO THE HONORABLE COURT AND TO ALL PARTIES AND THEIR COUNSEL OF
2 RECORD:
3 PLEASE TAKE NOTICE that as a result of an error, counsel for Plaintiff did not update the
4 caption page of their First Amended Complaint (“FAC”) to add Carol Winters, as Trustee of the Dan &
Carol Winters Trust, dated April 2, 1997, AS AMENDED AND RESTATED November 1, 2021. The
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correct FAC is attached hereto as Exhibit A.
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8 DATED: May 9, 2024 Respectfully submitted,
9 NOVIAN & NOVIAN, LLP
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By: /s/ Farid Novian
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FARID NOVIAN
12 ALEXANDER KANDEL
AMBER MILLER
13 Attorneys for Plaintiffs
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NOTICE OF ERRATA
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EXHIBIT A
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NOTICE OF ERRATA
1 FARID NOVIAN, ESQ. (SBN 113504)
farid@novianlaw.com
2 ALEXANDER KANDEL, ESQ. (SBN 306176)
alexanderk@novianlaw.com
3 AMBER MILLER, ESQ. (SBN 346793)
amberm@novianlaw.com
4 NOVIAN & NOVIAN, LLP
1801 Century Park East, Suite 1201
5 Los Angeles, California 90067
Telephone: (310) 553-1222
6 Facsimile: (310) 553-0222
Attorneys for Plaintiffs, LITTLE MAD FISH LLC, a California limited
7 liability company, and NIMA MASSOOMI DMD MED MD INC., a California corporation
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF SAN MATEO
11
12 LITTLE MAD FISH LLC, a California limited ) CASE NO: 23-CIV-02464
liability company; NIMA MASSOOMI DMD )
13 MED MD INC., a California corporation, ) Assigned to Hon. V. Raymond Swope; Dept. 23
)
14 Plaintiffs, ) FIRST AMENDED COMPLAINT FOR:
) 1. NEGLIGENCE—COUNT I
15 ) 2. NEGLIGENCE—COUNT II
vs. ) (NEGLIGENCE PER SE)
) 3. BREACH OF FIDUCIARY DUTY
16 ) 4. BREACH OF THE DECLARATION
LORTON AVENUE COMMERCIAL ) OF COVENANTS, CONDITIONS,
17 CONDOMINIUMS, a California Nonprofit ) AND RESTRICTIONS
Mutual Benefit Corporation; CARRICK & ) 5. INTENTIONAL INTERFERENCE
18 ENGLISH ASSOCIATES REAL ESTATE ) WITH PROSPECTIVE ECONOMIC
INC., a California Corporation; NKW ) ADVANTAGE
19 ASSOCIATES, a California general ) 6. PRIVATE NUISANCE
partnership; JOHN S. KRUG, an ) 7. BREACH OF CONTRACT
20 individual; Carol Winters, as Trustee of the ) 8. INTENTIONAL
CAROL WINTERS, AS TRUSTEE OF ) MISREPRESENTATION
21 ) 9. NEGLIGENT
THE DAN & CAROL WINTERS TRUST, ) MISREPRESENTATION
DATED APRIL 2, 1997, AS AMENDED ) 10. INTETIONAL NONDISCLOSURE OF
22 AND RESTATED NOVEMBER 1, 2021; ) MATERIAL FACTS
MARC POPE, an individual; CUSHMAN ) 11. NEGLIGENT NONDISCLOSURE OF
23 & WAKEFIELD U.S., Inc., a Missouri ) MATERIAL FACTS
corporation; and DOES 1 through 50, ) 12. FRAUDULENT CONCEALMENT
24 inclusive, ) 13. PROFESSIONAL NEGLIGENCE
) 14. BREACH OF FIDUCIARY DUTY—
25 ) COUNT II
Defendants. ) 15. NEGLIGENCE—COUNT III
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1
FIRST AMENDED COMPLAINT
1 Plaintiffs LITTLE MAD FISH LLC and NIMA MASSOOMI DMD MED MD INC.
2 (collectively, “Plaintiffs”) hereby complains against defendants LORTON AVENUE COMMERCIAL
3 CONDOMINIUMS ASSOCIATION, a California nonprofit mutual benefit association (“Lorton
4 Avenue”); CARRICK & ENGLISH ASSOCIATES REAL ESTATE INC., a California corporation;
5 NKW ASSOCIATES, a California general partnership (“NKW”); JOHN S. KRUG, an individual
6 (“Krug”); Carol Winters, as Trustee of the Dan & Carol Winters Trust, dated April 2, 1997, AS
7 AMENDED AND RESTATED November 1, 2021 (“Trust”); MARC POPE, an individual (“Pope”),
8 an individual; CUSHMAN & WAKEFIELD U.S., Inc., a Missouri corporation; and DOES 1 through
9 50, inclusive, and each of them (collectively “Defendants”), as follows:
10 PARTIES
11 1. Plaintiff Little Mad Fish LLC is, and at all times relevant hereto was, a California
12 limited liability company, with a principal place of business in California. Little Mad Fish LLC is the
13 legal owner of the commercial condominium unit known as 345 Lorton Avenue, Unit 105,
14 Burlingame, California, 94010.
15 2. Plaintiff Nima Massoomi DMD MEd MD Inc. is, and at all times relevant hereto was, a
16 California corporation, with a principal place of business in San Mateo County, California.
17 3. Plaintiffs are informed and believe, and thereon allege, that Defendant Lorton Avenue
18 is, and all times relevant hereto was, a California nonprofit mutual benefit corporation with its
19 principal address located at 345 Lorton Avenue, Burlingame, California 94010 (the “Property”).
20 4. Plaintiffs are informed and believe, and thereon allege, that Defendant Carrick &
21 English Associates Real Estate Inc. is, and all times relevant hereto was, a California corporation with
22 its principal place of business in San Mateo County, California.
23 5. Plaintiffs are informed and believe, and thereon allege, that Defendant NKW is a
24 California general partnership with its principal place of business in San Mateo County, California.
25 Upon information and belief, Defendant Krug and Daniel Winters (“Winters”) were partners of NKW.
26 Winters is deceased.
27 6. Plaintiffs are informed and believe, and thereon allege, that Defendant John S. Krug is
28 an individual doing business in El Dorado County, California.
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FIRST AMENDED COMPLAINT
1 7. Plaintiffs are informed and believe, and thereon alleges, that Winters, prior to his death,
2 was an individual doing business in Santa Clara County, California.
3 8. Plaintiffs are informed and believe, and thereon allege, that the Trust is the successor in
4 interest to Winters, and has assumed his assets and liabilities. The assets include, but are not limited to
5 Winters’ interest in Defendant NKW. These liabilities include, but are not limited to liability for the
6 misconduct of Winters and/or NKW, including but not limited to for the conduct alleged herein.
7 9. Plaintiffs are informed and believe, and thereon allege, that Defendant Marc Pope is,
8 and all times relevant hereto was, an individual residing in Sonoma County, California and conducting
9 business in San Mateo County, California.
10 10. Plaintiffs are informed and believe, and thereon allege, that Defendant Cushman &
11 Wakefield is, and all times relevant hereto was, a Missouri corporation licensed with the State of
12 California Department of Real Estate and conducting business in San Mateo County, California.
13 11. Plaintiffs are unaware of the true names and capacities of the defendants named herein
14 as DOES 1 through 50, inclusive, whether individual, corporate, associates, or otherwise and therefore
15 sue such defendants by fictitious names. Plaintiffs will seek leave of the court to amend the complaint
16 to set forth the true names and capacities of said defendants when the same has been ascertained.
17 Plaintiffs are informed and believe and thereon allege that DOES 1 through 50, inclusive, and each of
18 them, are responsible in some manner for the wrongful acts, occurrences, and/or omissions alleged
19 herein and for the damages caused to Plaintiff.
20 JURISDICTION
21 12. Venue is proper in this judicial district pursuant to California Code of Civil Procedure
22 395(a) as Defendants reside and/or transact business in the County of San Mateo.
23 13. This Court has jurisdiction over Defendants pursuant to California Code of Civil
24 Procedure 410.10 as Defendants reside and/or transact business in California.
25 GENERAL ALLEGATIONS
26 14. On or about July 14, 2021, Nima Massoomi, an individual and the authorized
27 representative of both Plaintiff Little Mad Fish LLC and Plaintiff Nima Massoomi DMD MEd MD
28 Inc., entered into a written Purchase and Sale Agreement (the “PSA”) to purchase the commercial
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FIRST AMENDED COMPLAINT
1 condominium unit located at 345 Lorton Avenue, Unit 105, Burlingame, California 94010 (the
2 “Subject Unit”).
3 15. The PSA was entered into by and between Nima Massoomi and Defendant NKW,
4 wherein Nima Massoomi agreed to purchase, and Defendant NKW agreed to sell, the Subject Unit for
5 approximately $1,054,000.00.
6 16. The PSA provided that Nima Massoomi, the individual buyer of the Subject Unit, could
7 assign the PSA to a limited liability company of which he is a member. Nima Massoomi is the sole
8 member of Plaintiff Little Mad Fish LLC. Since inception, the PSA was always intended to be
9 assigned to Plaintiff Little Mad Fish LLC, and Plaintiff Little Mad Fish LLC was always intended to
10 become the legal title owner. Accordingly, all rights and obligations under the PSA were to be
11 assigned to Plaintiff Little Mad Fish LLC upon the close of escrow.
12 17. Consequently, upon the close of escrow, Plaintiff Little Mad Fish LLC would become
13 the legal title holder of the Subject Unit, and, as a result, a member of the Lorton Avenue Commercial
14 Condominiums Association (the “Association”). Additionally, Little Mad Fish LLC would hold all
15 rights and obligations under the PSA.
16 18. Plaintiff Little Mad Fish LLC acquired the Subject Unit in order to lease it to Plaintiff
17 Nima Massoomi DMD MEd MD Inc.
18 19. Plaintiff Nima Massoomi DMD MEd MD Inc. intended to lease the Subject Unit in
19 order to use it as an office space to practice oral and maxillofacial surgery, and intended to remodel the
20 Subject Unit so that it was fit for such purposes.
21 20. As required by law, Defendant NKW, through its authorized representatives Defendant
22 Krug and Winters, made various “disclosures” and representations required under law as the seller of
23 the Subject Unit. These representations were made through key documents: (1) the Seller’s Mandatory
24 Disclosure Statement; and (2) the Property Information Sheet.
25 21. Specifically, Defendant NKW disclosed that the “[b]uilding has leaked in the past and
26 has had repair work done,” and that “[t]here ha[d] been leaks in the building and repairs have been
27 done with assessments paid by the owners.” Defendant NKW further represented that it had no
28 knowledge of the existence of mold.
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FIRST AMENDED COMPLAINT
1 22. Upon information and belief, Defendant NKW intentionally and strategically stated that
2 the building had leaked and that repairs had been done, so as to make Nima Massoomi (and as a result,
3 Plaintiff Little Mad Fish LLC) believe that any past leaks and water issues had already been fully
4 resolved and that the Subject Unit was in far superior condition than Defendant NKW knew it to be.
5 23. Upon information and belief, Defendant NKW knew that the leaks and water damages
6 were ongoing, and Defendant NKW intentionally misled and deceived Plaintiff Little Mad Fish LLC
7 in order to induce Plaintiff into purchasing the Subject Unit.
8 24. Moreover, in or around late July or early August of 2021, Plaintiff Little Mad Fish LLC,
9 through an authorized representative, asked both an agent of Defendant NKW, as well as the tenant
10 who occupied the Subject Unit, if either were aware of any water damage to the Subject Unit currently
11 or in the past. Specifically, NKW’s agent who, upon information and belief, was the son of one of the
12 owners of the Subject Unit, represented that he was not aware of any issues related to water intrusion
13 or leaks at the Subject Unit. Both NKW’s agent, as well as the former tenant, represented to Plaintiff’s
14 authorized representatives that there were no water intrusion issues or leaks at the Subject Unit.
15 Despite these various representations by different individuals, investigations have demonstrated that
16 the Subject Unit has consistently had water intrusion and leakage issues for years, and still continues
17 to have such problems as of the date of the filing of this Complaint.
18 25. Moreover, professional inspections performed at the Subject Unit have revealed that
19 (faulty) sealant had previously been administered to the drain in the deck above the Subject Unit,
20 where water flows and leaks through into the Subject Unit. The only reason that sealant would have
21 been applied at this location is if someone experienced water intrusion in the Subject Unit, and then
22 notified the Association or the owner of the unit above the Subject Unit to fix it. This further evinces
23 knowledge of the water intrusion, and a concerted effort to conceal these issues.
24 26. Moreover, in the Seller’s Mandatory Disclosure Statement, Defendant NKW, through
25 its authorized representatives, Defendant Krug and Winters, represented that seller “neither know[s]
26 nor has reasonable cause to believe that any release of hazardous substances...has come to be on or
27 located beneath the property.” Defendant NKW, through its authorized representatives, Defendant
28 Krug and Winters, further falsely represented that they had no knowledge of the existence of
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FIRST AMENDED COMPLAINT
1 hazardous levels of mold at the Subject Unit.
2 27. Upon information and belief, Defendants NKW and Krug, as well as Winters, as sellers,
3 knew that mold existed on and throughout the Subject Unit. As is evident, mold growth is the result of
4 moisture, which is caused by water intrusion and leaks in a property. Defendants NKW and Krug, as
5 well as Winters had knowledge of the extent of the water damage issues at the Subject Unit, and
6 therefore, at the very least, had reasonable cause to believe that mold existed.
7 28. Additionally, Plaintiff Little Mad Fish LLC sent Defendant Carrick & English multiple
8 emails requesting that Carrick & English provide the Association’s governing documents, meeting
9 minutes of the Association’s board (the “Board”) meetings, and records of repairs because, as the
10 Association’s property manager, it is Carrick & English’s responsibility to hold, maintain, and procure
11 such records.
12 29. However, despite its duty to do so, Carrick & English refused to disclose or provide the
13 requested materials, despite Plaintiff Little Mad Fish LLC’s repeated requests to Defendant Carrick &
14 English.
15 30. Because of Defendant NKW’s deceit and misrepresentations regarding the Subject Unit,
16 conducted through its authorized representatives, Defendant Krug and Winters, and because of Carrick
17 & English’s inexcusable refusal to disclose any information or provide any documentation regarding
18 the Property, Plaintiff Little Mad Fish LLC, through its authorized representative Dr. Nima Massoomi,
19 moved forward with the purchase, and escrow closed on October 8, 2021.
20 31. Upon the close of escrow, Plaintiff Little Mad Fish LLC became the legal owner of the
21 Subject Unit, and, accordingly, holds all rights under the PSA.
22 32. Following the close of escrow, Plaintiff Little Mad Fish LLC attempted to move
23 forward with its plans for the Subject Unit, in order to turn the Subject Unit into a space that is suitable
24 for an oral and maxillofacial surgery office.
25 33. Plaintiff Little Mad Fish LLC continued to repeatedly attempt to contact the Board and
26 Carrick & English with questions regarding the Property, the Subject Unit, and any scheduled repairs
27 and/or special assessments.
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FIRST AMENDED COMPLAINT
1 34. From the close of escrow on October 8, 2021, to the date of the filing of this Complaint,
2 the Board, its representatives, and Carrick & English have repeatedly and consistently refused to
3 cooperate with Plaintiff Little Mad Fish LLC’s plans to remodel and repair the Subject Unit, or answer
4 its questions relating to previous or future repairs. They have further refused to provide requested
5 pertinent information and documents which Plaintiff Little Mad Fish LLC, as a member of the
6 Association, is entitled to access.
7 35. Although Plaintiff Little Mad Fish LLC was ready and able to begin demolition and
8 buildout of the Subject Unit in order to make the Subject Unit fit for use as a surgical care center, it
9 was not until October 11, 2022, that Little Mad Fish LLC, through its authorized representative, Nima
10 Massoomi, began to discover the existence of severe water leaks and associated problems. This was
11 due to the Board’s continued, ongoing, and unfounded delay of approval of Plaintiff’s construction-
12 related plans. These problems included, inter alia, puddling, soaked carpets, water damage, corrosion
13 to structural elements and beams, as well as high levels of resulting toxic mold. These defects were
14 present throughout the Common Elements that touch the Subject Unit, and were therefore expressly
15 and solely the Board’s responsibility to maintain and repair under the CC&Rs.
16 36. At this time, following the very first rainstorm that had occurred since Plaintiff
17 occupied the Subject Unit, representatives of Plaintiff Little Mad Fish LLC went to the Subject Unit to
18 remove the baseboard and floors. It was then that it became clear to Plaintiff Little Mad Fish LLC that
19 there are ongoing and extensive water intrusion issues affecting the Subject Unit. It also became clear
20 that some of the baseboard has been repaired in order to cover up previous water damage. These issues
21 plague both the interior and the exterior of the Subject Unit.
22 37. Following the discovery of the extensive water intrusion on or about October 11, 2022,
23 Plaintiff Little Mad Fish LLC consistently attempted to work with the Board, its representatives, and
24 Carrick & English to address such water intrusion issues at the Property, and specifically, the Subject
25 Unit.
26 38. In fact, on October 13, 2022, Plaintiff Little Mad Fish LLC, through its authorized
27 representative Nima Massoomi, sent an email to Defendants Lorton Avenue and Carrick & English,
28 stating that the demolition had uncovered mold growth as well as active water intrusion from all walls
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FIRST AMENDED COMPLAINT
1 facing the exterior façade that was previously repaired. Plaintiff further asked Defendants to provide a
2 written response outlining the steps that the Board and Carrick & English planned to take in order to
3 remediate the mold and stop further water intrusion in a timely manner, since Plaintiff would be
4 unable to proceed with any of the planned tenant improvements without such remediation and repair.
5 39. As is evident, Defendants Lorton Avenue and Carrick & English took none of the steps
6 that were requested by Plaintiff, or that were required of Defendants to take as the Association of the
7 Property or the property management company.
8 40. At first, Plaintiff Little Mad Fish LLC mistakenly believed that the Association, the
9 Board, and Defendant Carrick & English would also want to address and resolve the substantial water
10 intrusion issues and defects at the Property and the Subject Unit. However, it quickly became evident
11 that the exact opposite was true: the Association, the Board, and Defendant Carrick & English had no
12 interest in making the necessary repairs. In fact, they had chosen countless times not to make such
13 repairs—repairs that they already knew were needed. The Board has even gone so far as to prevent
14 Plaintiff Little Mad Fish LLC from conducting its own tests and repairs.
15 41. On October 14, 2022, counsel for Little Mad Fish LLC sent a letter to the Association’s
16 counsel, demanding that the Association provide access to such documentation, as is provided for in
17 the Association’s governing documents as well as applicable commercial common interest
18 development law, especially given that Plaintiff had been requesting such documents since July of
19 2021, when Plaintiff was still in the due diligence timeframe provided for by the PSA. Plaintiff also
20 continued to request to review minutes of the meetings of the Board in an attempt to gain insight as to
21 the known issues and defects at the Property. Plaintiff Little Mad Fish LLC was continuously ignored,
22 or, told that such minutes would later be provided. To make matters even worse, Plaintiff was told by
23 the president of the Association, Bill Gekakis, that he forbade people from recording the Association
24 meetings and that he had no interest in taking minutes. As a result, Plaintiff, through its authorized
25 representative Nima Massoomi, rescheduled patient appointment times in order to take meeting
26 minutes himself. Plaintiff Little Mad Fish LLC was not provided with any of the minutes of the
27 meetings of the Board until Plaintiffs’ counsel finally retrieved them in October of 2022.
28 ///
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FIRST AMENDED COMPLAINT
1 42. Moreover, Plaintiff decided to purchase the Subject Unit because Defendant Pope had
2 represented to Plaintiff that Defendant NKW, through its authorized representatives, Defendants Krug
3 and Winters, could not produce the requested documents. Plaintiff also asked Defendants Krug and
4 Winter for the documents, and received nothing.
5 43. On October 14, 2022, after almost a year of the Association refusing to provide
6 Plaintiff Little Mad Fish LLC with the Association’s books and records (which Little Mad Fish is and
7 has always been entitled to as a member of the Association), counsel for Little Mad Fish LLC sent a
8 letter to the Association’s counsel, demanding that the Association provide access to such
9 documentation, as is provided for in the Association’s governing documents as well as applicable
10 commercial common interest development law.
11 44. Pursuant to such governing documents and applicable law, Plaintiff requested access to,
12 inter alia, Lorton Avenue’s: current Bylaws; current Declaration of Covenants, Conditions, and
13 Restrictions; Board Meeting Minutes and Meeting Minutes of the Committees of the Board for the
14 past twenty (20) years; record of members’ names, addresses, and voting rights; accounting books and
15 records, and financial statements.
16 45. At this time, once left with no reasonable means of refusal, Lorton Avenue finally
17 reluctantly agreed to provide Little Mad Fish LLC access to inspect such documents and records at the
18 office of Lorton Avenue’s property management company, Defendant Carrick & English.
19 46. After a review of the documents finally provided by the Board which included, inter
20 alia, some (but notably, not all) of the requested meeting minutes of the Board, previous construction
21 meeting minutes, previously sourced bids for water intrusion repair, and communications between
22 members of the Board, it became abundantly clear that there are and have been ongoing and severe
23 undisclosed water intrusion and related issues throughout the Property, and specifically, at the Subject
24 Unit. These water intrusion and related issues have been present and ongoing for decades.
25 47. Moreover, and more importantly, the provided documents made it abundantly clear that
26 the Association, the Board and its representatives, and Defendant Carrick & English all had full
27 knowledge of such ongoing and extensive water intrusion and related issues at the Property, and
28 specifically, the Subject Unit. The water intrusion and related issues directly affect the Common
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FIRST AMENDED COMPLAINT
1 Elements of the Property, and are therefore expressly and solely the Board’s responsibility to maintain
2 and repair under the CC&Rs.
3 48. The documents also clearly evidence that Association and the Board have continuously
4 failed and refused to address or resolve such issues in the common elements, despite the fact that it is
5 the Association’s duty under its governing documents to maintain and repair the common elements of
6 the Property. The CC&Rs expressly state that the Board is responsible for the maintenance and repair
7 of all Common Elements—not the individual unit owners. In fact, the Association and the Board have
8 instead chosen to willfully ignore such issues.
9 49. The documents and records provided show that the Board has chosen simply not to
10 address many of the issues and defects at the Property that it has been repeatedly advised need
11 substantial repairs. And, to the extent the Association has attempted to address any of the issues, the
12 Board has opted for partial, incomplete repairs over and over again, so as to avoid the costs and
13 inconveniences associated with doing the necessary comprehensive repairs.
14 50. Upon information and belief, the Board has repeatedly chosen to make this decision
15 despite the fact that it has been advised on multiple occasions by architecture and/or construction
16 professionals that comprehensive repairs are needed to fix the ongoing leaking and increasing
17 structural issues. In fact, on or about November 1, 2022, an agent of the Association informed an agent
18 of Plaintiff that, for many years, the Board had declined to follow the advice of such professionals
19 relating to repairs of the Common Elements and, inter alia, the water intrusion issues.
20 51. Since the discovery of the severity of the issues and the Board’s knowledge and
21 intentional concealment of such issues, Plaintiff Little Mad Fish LLC has consulted a professional
22 construction consultant to determine the full extent of the damage caused by the ongoing and
23 unresolved water intrusion.
24 52. The inspections and tests performed by this professional consultant have confirmed the
25 severity of the problems and revealed extensive water and resulting damage to both the interior and
26 exterior of the Subject Unit as a result of the ongoing water intrusion. Specifically, the construction
27 consultant found that there has been substantial building envelope failure, water intrusion as a result of
28 such failure, continuous and ongoing water damage to the building’s assembly, and continuous and
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FIRST AMENDED COMPLAINT
1 ongoing damage that directly affects the Subject Unit.
2 53. Additionally, such inspections and tests have led to the discovery of further problems,
3 including, inter alia, microbial growth and contamination, including high levels of toxic black mold,
4 as well as structural integrity corrosion damages at the Subject Unit. The corrosion present at the
5 Subject Unit affects has damaged steel elements/components, which poses a life safety hazard to
6 occupants of the building, including posing the threat of possible collapse of the building during an
7 earthquake event.
8 54. The professional consultant further informed Plaintiff Little Mad Fish LLC that the
9 ceiling of the Subject Unit had been patched so as to prevent water from leaking—something that
10 would have only logically happened if the person occupying the Subject Unit was aware of water
11 intrusion and took action to prevent it. This was never disclosed in any manner to Plaintiff, and was
12 only discovered once the demolition had been completed.
13 55. In fact, on January 27, 2023, the City of Burlingame Community Development
14 Department sent a hazard notice to Defendant Carrick & English, notifying the property management
15 company, all owners, and all other persons having an interest in the Property, of the hazardous
16 conditions at the Property (the “Hazard Notice”). A true and correct copy of the Hazard Notice is
17 attached hereto as Exhibit A.
18 56. The Hazard Notice lists the severe and dangerous structural issues with the Subject Unit,
19 and demands that the conditions at the Property be given immediate attention by requiring Defendant
20 Carrick & English to obtain the services of a structural engineer to further assess the conditions. If the
21 structural engineer determines that temporary shoring measures are required, the City demands that the
22 work be done immediately.
23 57. Moreover, the City of Burlingame imposed deadlines for the Board to meet with
24 respect to making the necessary repairs. The Board, as well as Defendant Carrick & English, failed to
25 meet the second deadline of March 1, 2023 to apply for permits for both structural repairs as well as
26 water intrusion repairs to the Subject Unit.
27 58. As of the date of filing this Complaint—over a year and a half after the purchase of the
28 Subject Unit—Plaintiff Little Mad Fish LLC and Plaintiff Nima Massoomi DMD MEd MD Inc.
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FIRST AMENDED COMPLAINT
1 remain unable to use or occupy the Subject Unit. Plaintiff Little Mad Fish LLC has not been able to
2 move forward with necessary repairs or remodeling due to the Association and the Board’s
3 stonewalling tactics and refusal to cooperate in any manner.
4 59. As a result, Plaintiff Nima Massoomi DMD MEd MD Inc. has been unable to begin
5 operating its oral surgery office, and will not be able to begin operating such practice for the
6 foreseeable future.
7 60. Additionally, Plaintiffs Little Mad Fish LLC and Nima Massoomi DMD MEd MD Inc.,
8 through their authorized representative Nima Massoomi, took out a federal small business association
9 (“SBA”) loan wherein Plaintiff Little Mad Fish LLC is the Borrower and Plaintiff Nima Massoomi
10 DMD Med MD Inc. is the Operating Company. The interest rate for the SBA loan will not be fixed
11 until Plaintiff Nima Massoomi DMD MEd MD Inc. occupies the Subject Unit. That is, Plaintiff’s
12 private bridge loan remains in place during the entirety of the construction period, which should have
13 been done by now (and thus, Plaintiff’s SBA loan rate should be fixed by now). Moreover, Plaintiff
14 Little Mad Fish LLC’s private bridge loan is tied to the prime rate, which has skyrocketed since
15 Plaintiff first took out the loan. Moreover, Plaintiff Little Mad Fish LLC’s loan was financed by First
16 Republic Bank, which was recently bought by Chase Bank.
17 61. Moreover, Plaintiff Little Mad Fish was relying on the extensions kindly given to it in
18 light of the Board’s subsequent failures, however, on May 22, 2023, the bank called Plaintiff’s
19 construction loans, and Plaintiff is now scrambling to come up with $800,000 in order to pay the bank
20 back.
21 62. As a direct result of Defendants’ action and/or inaction, Plaintiffs Cheese Bear LLC
22 and Nima Massoomi DMD MEd MD Inc. have continued to incur additional, significant, and
23 unnecessary damages, including but not limited to increased rates.
24 63. The conditions associated with the SBA loan include moving forward with construction
25 and remodeling plans according to a set schedule. Due to the Association and the Board’s failure to act
26 and conscious disregard for known water-related issues and defects at the Subject Unit, Plaintiff Little
27 Mad Fish LLC’s plans for remodel have been delayed and Plaintiffs have lost their funding because
28 the banks called the loans.
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FIRST AMENDED COMPLAINT
1 64. In addition to failing to maintain the Property and the Subject Unit in accordance with
2 the Association’s governing documents, including its Declaration of Covenants, Conditions, and
3 Restrictions (“CC&Rs”), the Association has further failed to abide by its own governing documents,
4 including by failing to follow procedures mandated by the Bylaws and/or CC&Rs relating to elections,
5 annual meetings, and notice requirements.
6 65. Plaintiff Little Mad Fish LLC has specifically requested that the Association (whether
7 directly or through its agent Defendant Carrick & English) provide documentation to demonstrate the
8 holding of elections or annual meetings. The Association (whether directly or through its agent
9 Defendant Carrick & English) failed to provide such documentation.
10 66. Upon information and belief, instead of electing Board members through the vote of
11 Unit Owners at the regular annual meeting of the Association, in accordance with the Association’s
12 Bylaws, the Board has invalidly, internally appointed new directors.
13 67. In fact, when the Association finally made its books and records available to Plaintiff,
14 there was zero evidence of elections ever previously being held in the manner prescribed by the
15 Association’s governing documents, and further, little to no evidence of elections ever being held, in
16 any manner.
17 68. Unit Owners were only informed of such change in governance after the fact, through
18 an email sent by Defendant Carrick & English.
19 69. In fact, most recently, the Board has announced two different dates for the upcoming
20 election to fill the current director vacancy. The Association originally announced that the election
21 would be held at the annual holiday party on December 20, 2022. However, the “Call for Candidates”
22 form distributed by the Association in anticipation of the election indicates that the election will be
23 held on January 26, 2023. This is just one of many examples of the Board attempting to prevent
24 Plaintiffs and other Unit Owners from being informed, or from participating in the governance of the
25 Association.
26 70. Eventually, in April of 2023, a meeting was held for election results. The meeting
27 minutes reflect that the only persons in attendance at this meeting were the three current Board
28 members, as they were the only candidates listed on the ballot for this election, and two unit owners.
13
FIRST AMENDED COMPLAINT
1 All three existing Board members were allegedly reelected. And the members of the Association were
2 only advised of this when an update was sent by an agent at Defendant Carrick & English on May 4,
3 2023.
4 71. Additionally, the Board has continuously failed to provide notice of its regular meetings,
5 as provided for in its governing documents. As a result, Unit Owners have not been given the
6 opportunity to attend many of these meetings, despite their right to attend. Moreover, in recent months,
7 the Board has further engaged in tactics to prevent Association members from participating in the
8 Association by scheduling meetings only during normal working hours, and giving very little notice of
9 such meetings. When Plaintiff asked if the Board could hold the meeting simultaneously by Zoom,
10 Plaintiff received no response.
11 72. To make matters even worse, the Board continues to stonewall Plaintiff’s efforts to use
12 and enjoy the Subject Unit by baselessly refusing to approve construction plans concerning coring into
13 slab in the Property. Such coring is absolutely necessary for Plaintiff to operate a surgical dental
14 practice, and Plaintiff has already obtained all required city and state permits related to such
15 construction at the Subject Unit, and has further obtained such permits. Moreover, the Property is
16 specifically zoned for dental practices, which necessarily contemplated such coring.
17 73. Despite the fact that Plaintiff’s initially asked the Association for approval for the
18 necessary coring on December 9, 2022, as of the date of the filing of this Complaint, the Association
19 has arbitrarily and improperly refused to approve such plans.
20 74. These incidents constitute just two of many of the disruptive and abusive tactics
21 implemented by Defendants to interfere with Plaintiffs rights to use and enjoy the Subject Unit, and to
22 meaningfully participate in the Association.
23 FIRST CAUSE OF ACTION
24 (For Negligence-Count I By Plaintiff Little Mad Fish LLC Against Lorton Avenue and DOES 1
25 through 50)
26 75. Plaintiff hereby realleges, and by this reference incorporates herein, each and every
27 allegation in the preceding paragraphs as though fully set forth herein.
28 ///
14
FIRST AMENDED COMPLAINT
1 76. Defendants owed Plaintiff a duty of reasonable care to prevent, maintain, detect and/or
2 correct unreasonably unsafe or hazardous conditions and risks of harm in and around the common area
3 as it affected the Subject Unit.
4 77. Moreover, Defendants, as the owners of the Common Elements, owed Plaintiff a duty
5 to maintain their own property such that it does not harm others’ persons or property.
6 78. Defendants knew, or through the exercise of reasonable care should have known, that
7 their failure to exercise ordinary care with respect to the Common Elements would cause damage to
8 the Subject Unit due to water intrusion and related issues. Moreover, Defendants knew, or through the
9 exercise of reasonable care should have known, the conditions that would occur as a result of such
10 water intrusion or related issues, or the reasonably likelihood of such.
11 79. Defendants breached their duty by failing to use reasonable care in controlling,
12 maintaining, inspecting, repairing, and/or attempting to repair the Common Elements such that
13 damage was caused to the Subject Unit as a result of the ongoing water intrusion and related issues.
14 This damage includes, but is not limited to, water damage to the interior and exterior of the Subject
15 Unit, mold infestation, high levels of toxic black mold, and structural integrity issues.
16 80. Furthermore, Defendants failed to correct or otherwise address these issues, so that as a
17 direct and proximate result thereof, Plaintiff suffered damages in amount to be determined at trial.
18 81. Defendants’ conduct as described herein was done with a conscious disregard for
19 Plaintiffs’ rights, constitutes despicable conduct and was done with the intent to vex, injure and annoy
20 Plaintiff such as to constitute oppression, fraud or malice under Civil Cde section 3294, entitling
21 Plaintiffs to punitive and exemplary damages in an amount appropriate to punish or set an example of
22 Defendants, and each of them.
23 SECOND CAUSE OF ACTION
24 (For Negligence-Count II (Negligence Per Se) By Plaintiff Little Mad Fish LLC Against Lorton
25 Avenue and DOES 1-50)
26 82. Plaintiff hereby realleges, and by this reference incorporates herein, each and every
27 allegation in the preceding paragraphs as though fully set forth herein.
28 83. Pursuant to Civil Code § 6716, Defendants owed Plaintiff a duty to repair, replace, and
15
FIRST AMENDED COMPLAINT
1 maintain the common areas of the Property as it affected the Subject Unit, and to take reasonable steps
2 to prevent damages of this nature, including, but not limited to, water intrusion damage.
3 84. Plaintiff was and is a member of the class intended to be protected by § 6716, and §
4 6716 was intended to prevent damages of this nature.
5 85. Defendants breached the aforementioned statutory duty by failing to repair, replace, and
6 maintain the common areas, including Common Elements such as the foundations, walls, and
7 structural parts of the building, such that damage was caused to the Subject Unit and its contents as a
8 result of the ongoing water intrusion and its aftermath. The damage and threat of damage to the
9 Subject Unit were known by Defendants, or through the exercise of reasonable care should have been
10 known.
11 THIRD CAUSE OF ACTION
12 (For Breach of Fiduciary Duty By Plaintiff Little Mad Fish LLC Against Lorton Avenue and
13 DOES 1-50)
14 86. Plaintiff hereby realleges, and by this reference incorporates herein, each and every
15 allegation in the preceding paragraphs as though fully set forth herein.
16 87. The Association (Defendant Lorton Avenue), by and through the Board, owed a
17 fiduciary duty to perform its duties in good faith, in the best interests of the Association, and with such
18 care as an ordinarily prudent person in a like position would use under the circumstances.
19 88. Defendant Lorton Avenue breached its fiduciary duty by failing to exercise its
20 supervisory and managerial responsibilities in a reasonable manner, and abdicated its responsibilities
21 by engaging in the following conduct including, but not limited to, the following:
22 • Failing to comply with its own governing documents and the California Civil Code by
23 failing to timely maintain, repair, and replace the common area property within the
24 Property;
25 • Failing to devote sufficient attention to Defendant Lorton Avenue’s business, including,
26 but not limited to, the maintenance and repair of the common areas;
27 • Ignoring requests by Plaintiff to make repairs to the common areas;
28 ///
16
FIRST AMENDED COMPLAINT
1 • Taking actions that are arbitrary, capricious, and/or in violation of the restrictions
2 contained in the Association’s governing documents;
3 • Refusing to communicate with Plaintiff; and
4 • Failing to act in the best interest of the Association and its Members.
5 89. As a direct and proximate result of the numerous breaches of fiduciary duty by
6 Defendant, Plaintiff has been harmed and has suffered damages in an amount to be
7 proven at trial.
8 FOURTH CAUSE OF ACTION
9 (For Breach of the Declaration of Covenants, Conditions, and Restrictions By Plaintiff Little Mad
10 Fish LLC Against Lorton Avenue and DOES 1-50)
11 90. Plaintiff hereby realleges, and by this reference incorporates herein, each and every
12 allegation in the preceding paragraphs as though fully set forth herein.
13 91. Defendants owed various obligations to Plaintiff pursuant to the CC&Rs, including the
14 obligation under Section of the CC&Rs 14 to maintain, repair, and replace the common areas as it
15 affects the Subject Unit. A true and correct copy of the CC&Rs is attached hereto as Exhibit B.
16 92. At all times mentioned herein, Plaintiff complied with the CC&Rs.
17 93. Defendants materially breached the terms of the CC&Rs by failing to maintain and/or
18 repair the common areas and/or the damage caused to the Subject Unit, thereby rendering the Subject
19 Unit unfit, unusable, and unsafe for Plaintiff as set forth herein.
20 94. As a direct result of Defendants’ breach of the CC&Rs, Plaintiff has and will continue to
21 incur expenses, including, without limitation, the cost of replacing
Preview
1 FARID NOVIAN, ESQ. (SBN 113504) farid@novianlaw.com 2 ALEXANDER KANDEL, ESQ. (SBN 306176) alexanderk@novianlaw.com 3 AMBER MILLER, ESQ. (SBN 346793) amberm@novianlaw.com 4 NOVIAN & NOVIAN, LLP 1801 Century Park East, Suite 1201 5 Los Angeles, California 90067 Telephone: (310) 553-1222 Facsimile: (310) 553-0222 6 Attorneys for Plaintiffs, LITTLE MAD FISH LLC, a California limited 7 liability company, and NIMA MASSOOMI DMD MED MD INC., a California corporation 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SAN MATEO 11 12 LITTLE MAD FISH LLC, a California limited ) CASE NO: 23-CIV-02464 liability company; NIMA MASSOOMI DMD ) 13 MED MD INC., a California corporation, ) Assigned to Hon. V. Raymond Swope; Dept. 23 ) 14 Plaintiffs, ) NOTICE OF ERRATA RE: PLAINTIFFS ) LITTLE MAD FISH LLC AND NIMA ) MASSOOMI DMD MED MD INC.’S FIRST 15 vs. ) AMENDED COMPLAINT ) 16 ) LORTON AVENUE COMMERCIAL ) 17 CONDOMINIUMS, a California Nonprofit ) Mutual Benefit Corporation; CARRICK & ) 18 ENGLISH ASSOCIATES REAL ESTATE ) INC., a California Corporation; NKW ) 19 ASSOCIATES, a California general ) partnership; JOHN S. KRUG, an individual; ) 20 CAROL WINTERS, AS TRUSTEE OF THE ) DAN & CAROL WINTERS TRUST, DATED )) 21 APRIL 2, 1997, AS AMENDED AND ) RESTATED NOVEMBER 1, 2021; MARC ) 22 POPE, an individual; CUSHMAN & ) WAKEFIELD U.S., Inc., a Missouri ) 23 corporation; and DOES 1 through 50, ) inclusive, ) 24 ) Defendants. ) 25 ) ) 26 ) 27 28 1 NOTICE OF ERRATA 1 TO THE HONORABLE COURT AND TO ALL PARTIES AND THEIR COUNSEL OF 2 RECORD: 3 PLEASE TAKE NOTICE that as a result of an error, counsel for Plaintiff did not update the 4 caption page of their First Amended Complaint (“FAC”) to add Carol Winters, as Trustee of the Dan & Carol Winters Trust, dated April 2, 1997, AS AMENDED AND RESTATED November 1, 2021. The 5 correct FAC is attached hereto as Exhibit A. 6 7 8 DATED: May 9, 2024 Respectfully submitted, 9 NOVIAN & NOVIAN, LLP 10 By: /s/ Farid Novian 11 FARID NOVIAN 12 ALEXANDER KANDEL AMBER MILLER 13 Attorneys for Plaintiffs 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 NOTICE OF ERRATA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 EXHIBIT A 19 20 21 22 23 24 25 26 27 28 3 NOTICE OF ERRATA 1 FARID NOVIAN, ESQ. (SBN 113504) farid@novianlaw.com 2 ALEXANDER KANDEL, ESQ. (SBN 306176) alexanderk@novianlaw.com 3 AMBER MILLER, ESQ. (SBN 346793) amberm@novianlaw.com 4 NOVIAN & NOVIAN, LLP 1801 Century Park East, Suite 1201 5 Los Angeles, California 90067 Telephone: (310) 553-1222 6 Facsimile: (310) 553-0222 Attorneys for Plaintiffs, LITTLE MAD FISH LLC, a California limited 7 liability company, and NIMA MASSOOMI DMD MED MD INC., a California corporation 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SAN MATEO 11 12 LITTLE MAD FISH LLC, a California limited ) CASE NO: 23-CIV-02464 liability company; NIMA MASSOOMI DMD ) 13 MED MD INC., a California corporation, ) Assigned to Hon. V. Raymond Swope; Dept. 23 ) 14 Plaintiffs, ) FIRST AMENDED COMPLAINT FOR: ) 1. NEGLIGENCE—COUNT I 15 ) 2. NEGLIGENCE—COUNT II vs. ) (NEGLIGENCE PER SE) ) 3. BREACH OF FIDUCIARY DUTY 16 ) 4. BREACH OF THE DECLARATION LORTON AVENUE COMMERCIAL ) OF COVENANTS, CONDITIONS, 17 CONDOMINIUMS, a California Nonprofit ) AND RESTRICTIONS Mutual Benefit Corporation; CARRICK & ) 5. INTENTIONAL INTERFERENCE 18 ENGLISH ASSOCIATES REAL ESTATE ) WITH PROSPECTIVE ECONOMIC INC., a California Corporation; NKW ) ADVANTAGE 19 ASSOCIATES, a California general ) 6. PRIVATE NUISANCE partnership; JOHN S. KRUG, an ) 7. BREACH OF CONTRACT 20 individual; Carol Winters, as Trustee of the ) 8. INTENTIONAL CAROL WINTERS, AS TRUSTEE OF ) MISREPRESENTATION 21 ) 9. NEGLIGENT THE DAN & CAROL WINTERS TRUST, ) MISREPRESENTATION DATED APRIL 2, 1997, AS AMENDED ) 10. INTETIONAL NONDISCLOSURE OF 22 AND RESTATED NOVEMBER 1, 2021; ) MATERIAL FACTS MARC POPE, an individual; CUSHMAN ) 11. NEGLIGENT NONDISCLOSURE OF 23 & WAKEFIELD U.S., Inc., a Missouri ) MATERIAL FACTS corporation; and DOES 1 through 50, ) 12. FRAUDULENT CONCEALMENT 24 inclusive, ) 13. PROFESSIONAL NEGLIGENCE ) 14. BREACH OF FIDUCIARY DUTY— 25 ) COUNT II Defendants. ) 15. NEGLIGENCE—COUNT III 26 ) 27 28 1 FIRST AMENDED COMPLAINT 1 Plaintiffs LITTLE MAD FISH LLC and NIMA MASSOOMI DMD MED MD INC. 2 (collectively, “Plaintiffs”) hereby complains against defendants LORTON AVENUE COMMERCIAL 3 CONDOMINIUMS ASSOCIATION, a California nonprofit mutual benefit association (“Lorton 4 Avenue”); CARRICK & ENGLISH ASSOCIATES REAL ESTATE INC., a California corporation; 5 NKW ASSOCIATES, a California general partnership (“NKW”); JOHN S. KRUG, an individual 6 (“Krug”); Carol Winters, as Trustee of the Dan & Carol Winters Trust, dated April 2, 1997, AS 7 AMENDED AND RESTATED November 1, 2021 (“Trust”); MARC POPE, an individual (“Pope”), 8 an individual; CUSHMAN & WAKEFIELD U.S., Inc., a Missouri corporation; and DOES 1 through 9 50, inclusive, and each of them (collectively “Defendants”), as follows: 10 PARTIES 11 1. Plaintiff Little Mad Fish LLC is, and at all times relevant hereto was, a California 12 limited liability company, with a principal place of business in California. Little Mad Fish LLC is the 13 legal owner of the commercial condominium unit known as 345 Lorton Avenue, Unit 105, 14 Burlingame, California, 94010. 15 2. Plaintiff Nima Massoomi DMD MEd MD Inc. is, and at all times relevant hereto was, a 16 California corporation, with a principal place of business in San Mateo County, California. 17 3. Plaintiffs are informed and believe, and thereon allege, that Defendant Lorton Avenue 18 is, and all times relevant hereto was, a California nonprofit mutual benefit corporation with its 19 principal address located at 345 Lorton Avenue, Burlingame, California 94010 (the “Property”). 20 4. Plaintiffs are informed and believe, and thereon allege, that Defendant Carrick & 21 English Associates Real Estate Inc. is, and all times relevant hereto was, a California corporation with 22 its principal place of business in San Mateo County, California. 23 5. Plaintiffs are informed and believe, and thereon allege, that Defendant NKW is a 24 California general partnership with its principal place of business in San Mateo County, California. 25 Upon information and belief, Defendant Krug and Daniel Winters (“Winters”) were partners of NKW. 26 Winters is deceased. 27 6. Plaintiffs are informed and believe, and thereon allege, that Defendant John S. Krug is 28 an individual doing business in El Dorado County, California. 2 FIRST AMENDED COMPLAINT 1 7. Plaintiffs are informed and believe, and thereon alleges, that Winters, prior to his death, 2 was an individual doing business in Santa Clara County, California. 3 8. Plaintiffs are informed and believe, and thereon allege, that the Trust is the successor in 4 interest to Winters, and has assumed his assets and liabilities. The assets include, but are not limited to 5 Winters’ interest in Defendant NKW. These liabilities include, but are not limited to liability for the 6 misconduct of Winters and/or NKW, including but not limited to for the conduct alleged herein. 7 9. Plaintiffs are informed and believe, and thereon allege, that Defendant Marc Pope is, 8 and all times relevant hereto was, an individual residing in Sonoma County, California and conducting 9 business in San Mateo County, California. 10 10. Plaintiffs are informed and believe, and thereon allege, that Defendant Cushman & 11 Wakefield is, and all times relevant hereto was, a Missouri corporation licensed with the State of 12 California Department of Real Estate and conducting business in San Mateo County, California. 13 11. Plaintiffs are unaware of the true names and capacities of the defendants named herein 14 as DOES 1 through 50, inclusive, whether individual, corporate, associates, or otherwise and therefore 15 sue such defendants by fictitious names. Plaintiffs will seek leave of the court to amend the complaint 16 to set forth the true names and capacities of said defendants when the same has been ascertained. 17 Plaintiffs are informed and believe and thereon allege that DOES 1 through 50, inclusive, and each of 18 them, are responsible in some manner for the wrongful acts, occurrences, and/or omissions alleged 19 herein and for the damages caused to Plaintiff. 20 JURISDICTION 21 12. Venue is proper in this judicial district pursuant to California Code of Civil Procedure 22 395(a) as Defendants reside and/or transact business in the County of San Mateo. 23 13. This Court has jurisdiction over Defendants pursuant to California Code of Civil 24 Procedure 410.10 as Defendants reside and/or transact business in California. 25 GENERAL ALLEGATIONS 26 14. On or about July 14, 2021, Nima Massoomi, an individual and the authorized 27 representative of both Plaintiff Little Mad Fish LLC and Plaintiff Nima Massoomi DMD MEd MD 28 Inc., entered into a written Purchase and Sale Agreement (the “PSA”) to purchase the commercial 3 FIRST AMENDED COMPLAINT 1 condominium unit located at 345 Lorton Avenue, Unit 105, Burlingame, California 94010 (the 2 “Subject Unit”). 3 15. The PSA was entered into by and between Nima Massoomi and Defendant NKW, 4 wherein Nima Massoomi agreed to purchase, and Defendant NKW agreed to sell, the Subject Unit for 5 approximately $1,054,000.00. 6 16. The PSA provided that Nima Massoomi, the individual buyer of the Subject Unit, could 7 assign the PSA to a limited liability company of which he is a member. Nima Massoomi is the sole 8 member of Plaintiff Little Mad Fish LLC. Since inception, the PSA was always intended to be 9 assigned to Plaintiff Little Mad Fish LLC, and Plaintiff Little Mad Fish LLC was always intended to 10 become the legal title owner. Accordingly, all rights and obligations under the PSA were to be 11 assigned to Plaintiff Little Mad Fish LLC upon the close of escrow. 12 17. Consequently, upon the close of escrow, Plaintiff Little Mad Fish LLC would become 13 the legal title holder of the Subject Unit, and, as a result, a member of the Lorton Avenue Commercial 14 Condominiums Association (the “Association”). Additionally, Little Mad Fish LLC would hold all 15 rights and obligations under the PSA. 16 18. Plaintiff Little Mad Fish LLC acquired the Subject Unit in order to lease it to Plaintiff 17 Nima Massoomi DMD MEd MD Inc. 18 19. Plaintiff Nima Massoomi DMD MEd MD Inc. intended to lease the Subject Unit in 19 order to use it as an office space to practice oral and maxillofacial surgery, and intended to remodel the 20 Subject Unit so that it was fit for such purposes. 21 20. As required by law, Defendant NKW, through its authorized representatives Defendant 22 Krug and Winters, made various “disclosures” and representations required under law as the seller of 23 the Subject Unit. These representations were made through key documents: (1) the Seller’s Mandatory 24 Disclosure Statement; and (2) the Property Information Sheet. 25 21. Specifically, Defendant NKW disclosed that the “[b]uilding has leaked in the past and 26 has had repair work done,” and that “[t]here ha[d] been leaks in the building and repairs have been 27 done with assessments paid by the owners.” Defendant NKW further represented that it had no 28 knowledge of the existence of mold. 4 FIRST AMENDED COMPLAINT 1 22. Upon information and belief, Defendant NKW intentionally and strategically stated that 2 the building had leaked and that repairs had been done, so as to make Nima Massoomi (and as a result, 3 Plaintiff Little Mad Fish LLC) believe that any past leaks and water issues had already been fully 4 resolved and that the Subject Unit was in far superior condition than Defendant NKW knew it to be. 5 23. Upon information and belief, Defendant NKW knew that the leaks and water damages 6 were ongoing, and Defendant NKW intentionally misled and deceived Plaintiff Little Mad Fish LLC 7 in order to induce Plaintiff into purchasing the Subject Unit. 8 24. Moreover, in or around late July or early August of 2021, Plaintiff Little Mad Fish LLC, 9 through an authorized representative, asked both an agent of Defendant NKW, as well as the tenant 10 who occupied the Subject Unit, if either were aware of any water damage to the Subject Unit currently 11 or in the past. Specifically, NKW’s agent who, upon information and belief, was the son of one of the 12 owners of the Subject Unit, represented that he was not aware of any issues related to water intrusion 13 or leaks at the Subject Unit. Both NKW’s agent, as well as the former tenant, represented to Plaintiff’s 14 authorized representatives that there were no water intrusion issues or leaks at the Subject Unit. 15 Despite these various representations by different individuals, investigations have demonstrated that 16 the Subject Unit has consistently had water intrusion and leakage issues for years, and still continues 17 to have such problems as of the date of the filing of this Complaint. 18 25. Moreover, professional inspections performed at the Subject Unit have revealed that 19 (faulty) sealant had previously been administered to the drain in the deck above the Subject Unit, 20 where water flows and leaks through into the Subject Unit. The only reason that sealant would have 21 been applied at this location is if someone experienced water intrusion in the Subject Unit, and then 22 notified the Association or the owner of the unit above the Subject Unit to fix it. This further evinces 23 knowledge of the water intrusion, and a concerted effort to conceal these issues. 24 26. Moreover, in the Seller’s Mandatory Disclosure Statement, Defendant NKW, through 25 its authorized representatives, Defendant Krug and Winters, represented that seller “neither know[s] 26 nor has reasonable cause to believe that any release of hazardous substances...has come to be on or 27 located beneath the property.” Defendant NKW, through its authorized representatives, Defendant 28 Krug and Winters, further falsely represented that they had no knowledge of the existence of 5 FIRST AMENDED COMPLAINT 1 hazardous levels of mold at the Subject Unit. 2 27. Upon information and belief, Defendants NKW and Krug, as well as Winters, as sellers, 3 knew that mold existed on and throughout the Subject Unit. As is evident, mold growth is the result of 4 moisture, which is caused by water intrusion and leaks in a property. Defendants NKW and Krug, as 5 well as Winters had knowledge of the extent of the water damage issues at the Subject Unit, and 6 therefore, at the very least, had reasonable cause to believe that mold existed. 7 28. Additionally, Plaintiff Little Mad Fish LLC sent Defendant Carrick & English multiple 8 emails requesting that Carrick & English provide the Association’s governing documents, meeting 9 minutes of the Association’s board (the “Board”) meetings, and records of repairs because, as the 10 Association’s property manager, it is Carrick & English’s responsibility to hold, maintain, and procure 11 such records. 12 29. However, despite its duty to do so, Carrick & English refused to disclose or provide the 13 requested materials, despite Plaintiff Little Mad Fish LLC’s repeated requests to Defendant Carrick & 14 English. 15 30. Because of Defendant NKW’s deceit and misrepresentations regarding the Subject Unit, 16 conducted through its authorized representatives, Defendant Krug and Winters, and because of Carrick 17 & English’s inexcusable refusal to disclose any information or provide any documentation regarding 18 the Property, Plaintiff Little Mad Fish LLC, through its authorized representative Dr. Nima Massoomi, 19 moved forward with the purchase, and escrow closed on October 8, 2021. 20 31. Upon the close of escrow, Plaintiff Little Mad Fish LLC became the legal owner of the 21 Subject Unit, and, accordingly, holds all rights under the PSA. 22 32. Following the close of escrow, Plaintiff Little Mad Fish LLC attempted to move 23 forward with its plans for the Subject Unit, in order to turn the Subject Unit into a space that is suitable 24 for an oral and maxillofacial surgery office. 25 33. Plaintiff Little Mad Fish LLC continued to repeatedly attempt to contact the Board and 26 Carrick & English with questions regarding the Property, the Subject Unit, and any scheduled repairs 27 and/or special assessments. 28 /// 6 FIRST AMENDED COMPLAINT 1 34. From the close of escrow on October 8, 2021, to the date of the filing of this Complaint, 2 the Board, its representatives, and Carrick & English have repeatedly and consistently refused to 3 cooperate with Plaintiff Little Mad Fish LLC’s plans to remodel and repair the Subject Unit, or answer 4 its questions relating to previous or future repairs. They have further refused to provide requested 5 pertinent information and documents which Plaintiff Little Mad Fish LLC, as a member of the 6 Association, is entitled to access. 7 35. Although Plaintiff Little Mad Fish LLC was ready and able to begin demolition and 8 buildout of the Subject Unit in order to make the Subject Unit fit for use as a surgical care center, it 9 was not until October 11, 2022, that Little Mad Fish LLC, through its authorized representative, Nima 10 Massoomi, began to discover the existence of severe water leaks and associated problems. This was 11 due to the Board’s continued, ongoing, and unfounded delay of approval of Plaintiff’s construction- 12 related plans. These problems included, inter alia, puddling, soaked carpets, water damage, corrosion 13 to structural elements and beams, as well as high levels of resulting toxic mold. These defects were 14 present throughout the Common Elements that touch the Subject Unit, and were therefore expressly 15 and solely the Board’s responsibility to maintain and repair under the CC&Rs. 16 36. At this time, following the very first rainstorm that had occurred since Plaintiff 17 occupied the Subject Unit, representatives of Plaintiff Little Mad Fish LLC went to the Subject Unit to 18 remove the baseboard and floors. It was then that it became clear to Plaintiff Little Mad Fish LLC that 19 there are ongoing and extensive water intrusion issues affecting the Subject Unit. It also became clear 20 that some of the baseboard has been repaired in order to cover up previous water damage. These issues 21 plague both the interior and the exterior of the Subject Unit. 22 37. Following the discovery of the extensive water intrusion on or about October 11, 2022, 23 Plaintiff Little Mad Fish LLC consistently attempted to work with the Board, its representatives, and 24 Carrick & English to address such water intrusion issues at the Property, and specifically, the Subject 25 Unit. 26 38. In fact, on October 13, 2022, Plaintiff Little Mad Fish LLC, through its authorized 27 representative Nima Massoomi, sent an email to Defendants Lorton Avenue and Carrick & English, 28 stating that the demolition had uncovered mold growth as well as active water intrusion from all walls 7 FIRST AMENDED COMPLAINT 1 facing the exterior façade that was previously repaired. Plaintiff further asked Defendants to provide a 2 written response outlining the steps that the Board and Carrick & English planned to take in order to 3 remediate the mold and stop further water intrusion in a timely manner, since Plaintiff would be 4 unable to proceed with any of the planned tenant improvements without such remediation and repair. 5 39. As is evident, Defendants Lorton Avenue and Carrick & English took none of the steps 6 that were requested by Plaintiff, or that were required of Defendants to take as the Association of the 7 Property or the property management company. 8 40. At first, Plaintiff Little Mad Fish LLC mistakenly believed that the Association, the 9 Board, and Defendant Carrick & English would also want to address and resolve the substantial water 10 intrusion issues and defects at the Property and the Subject Unit. However, it quickly became evident 11 that the exact opposite was true: the Association, the Board, and Defendant Carrick & English had no 12 interest in making the necessary repairs. In fact, they had chosen countless times not to make such 13 repairs—repairs that they already knew were needed. The Board has even gone so far as to prevent 14 Plaintiff Little Mad Fish LLC from conducting its own tests and repairs. 15 41. On October 14, 2022, counsel for Little Mad Fish LLC sent a letter to the Association’s 16 counsel, demanding that the Association provide access to such documentation, as is provided for in 17 the Association’s governing documents as well as applicable commercial common interest 18 development law, especially given that Plaintiff had been requesting such documents since July of 19 2021, when Plaintiff was still in the due diligence timeframe provided for by the PSA. Plaintiff also 20 continued to request to review minutes of the meetings of the Board in an attempt to gain insight as to 21 the known issues and defects at the Property. Plaintiff Little Mad Fish LLC was continuously ignored, 22 or, told that such minutes would later be provided. To make matters even worse, Plaintiff was told by 23 the president of the Association, Bill Gekakis, that he forbade people from recording the Association 24 meetings and that he had no interest in taking minutes. As a result, Plaintiff, through its authorized 25 representative Nima Massoomi, rescheduled patient appointment times in order to take meeting 26 minutes himself. Plaintiff Little Mad Fish LLC was not provided with any of the minutes of the 27 meetings of the Board until Plaintiffs’ counsel finally retrieved them in October of 2022. 28 /// 8 FIRST AMENDED COMPLAINT 1 42. Moreover, Plaintiff decided to purchase the Subject Unit because Defendant Pope had 2 represented to Plaintiff that Defendant NKW, through its authorized representatives, Defendants Krug 3 and Winters, could not produce the requested documents. Plaintiff also asked Defendants Krug and 4 Winter for the documents, and received nothing. 5 43. On October 14, 2022, after almost a year of the Association refusing to provide 6 Plaintiff Little Mad Fish LLC with the Association’s books and records (which Little Mad Fish is and 7 has always been entitled to as a member of the Association), counsel for Little Mad Fish LLC sent a 8 letter to the Association’s counsel, demanding that the Association provide access to such 9 documentation, as is provided for in the Association’s governing documents as well as applicable 10 commercial common interest development law. 11 44. Pursuant to such governing documents and applicable law, Plaintiff requested access to, 12 inter alia, Lorton Avenue’s: current Bylaws; current Declaration of Covenants, Conditions, and 13 Restrictions; Board Meeting Minutes and Meeting Minutes of the Committees of the Board for the 14 past twenty (20) years; record of members’ names, addresses, and voting rights; accounting books and 15 records, and financial statements. 16 45. At this time, once left with no reasonable means of refusal, Lorton Avenue finally 17 reluctantly agreed to provide Little Mad Fish LLC access to inspect such documents and records at the 18 office of Lorton Avenue’s property management company, Defendant Carrick & English. 19 46. After a review of the documents finally provided by the Board which included, inter 20 alia, some (but notably, not all) of the requested meeting minutes of the Board, previous construction 21 meeting minutes, previously sourced bids for water intrusion repair, and communications between 22 members of the Board, it became abundantly clear that there are and have been ongoing and severe 23 undisclosed water intrusion and related issues throughout the Property, and specifically, at the Subject 24 Unit. These water intrusion and related issues have been present and ongoing for decades. 25 47. Moreover, and more importantly, the provided documents made it abundantly clear that 26 the Association, the Board and its representatives, and Defendant Carrick & English all had full 27 knowledge of such ongoing and extensive water intrusion and related issues at the Property, and 28 specifically, the Subject Unit. The water intrusion and related issues directly affect the Common 9 FIRST AMENDED COMPLAINT 1 Elements of the Property, and are therefore expressly and solely the Board’s responsibility to maintain 2 and repair under the CC&Rs. 3 48. The documents also clearly evidence that Association and the Board have continuously 4 failed and refused to address or resolve such issues in the common elements, despite the fact that it is 5 the Association’s duty under its governing documents to maintain and repair the common elements of 6 the Property. The CC&Rs expressly state that the Board is responsible for the maintenance and repair 7 of all Common Elements—not the individual unit owners. In fact, the Association and the Board have 8 instead chosen to willfully ignore such issues. 9 49. The documents and records provided show that the Board has chosen simply not to 10 address many of the issues and defects at the Property that it has been repeatedly advised need 11 substantial repairs. And, to the extent the Association has attempted to address any of the issues, the 12 Board has opted for partial, incomplete repairs over and over again, so as to avoid the costs and 13 inconveniences associated with doing the necessary comprehensive repairs. 14 50. Upon information and belief, the Board has repeatedly chosen to make this decision 15 despite the fact that it has been advised on multiple occasions by architecture and/or construction 16 professionals that comprehensive repairs are needed to fix the ongoing leaking and increasing 17 structural issues. In fact, on or about November 1, 2022, an agent of the Association informed an agent 18 of Plaintiff that, for many years, the Board had declined to follow the advice of such professionals 19 relating to repairs of the Common Elements and, inter alia, the water intrusion issues. 20 51. Since the discovery of the severity of the issues and the Board’s knowledge and 21 intentional concealment of such issues, Plaintiff Little Mad Fish LLC has consulted a professional 22 construction consultant to determine the full extent of the damage caused by the ongoing and 23 unresolved water intrusion. 24 52. The inspections and tests performed by this professional consultant have confirmed the 25 severity of the problems and revealed extensive water and resulting damage to both the interior and 26 exterior of the Subject Unit as a result of the ongoing water intrusion. Specifically, the construction 27 consultant found that there has been substantial building envelope failure, water intrusion as a result of 28 such failure, continuous and ongoing water damage to the building’s assembly, and continuous and 10 FIRST AMENDED COMPLAINT 1 ongoing damage that directly affects the Subject Unit. 2 53. Additionally, such inspections and tests have led to the discovery of further problems, 3 including, inter alia, microbial growth and contamination, including high levels of toxic black mold, 4 as well as structural integrity corrosion damages at the Subject Unit. The corrosion present at the 5 Subject Unit affects has damaged steel elements/components, which poses a life safety hazard to 6 occupants of the building, including posing the threat of possible collapse of the building during an 7 earthquake event. 8 54. The professional consultant further informed Plaintiff Little Mad Fish LLC that the 9 ceiling of the Subject Unit had been patched so as to prevent water from leaking—something that 10 would have only logically happened if the person occupying the Subject Unit was aware of water 11 intrusion and took action to prevent it. This was never disclosed in any manner to Plaintiff, and was 12 only discovered once the demolition had been completed. 13 55. In fact, on January 27, 2023, the City of Burlingame Community Development 14 Department sent a hazard notice to Defendant Carrick & English, notifying the property management 15 company, all owners, and all other persons having an interest in the Property, of the hazardous 16 conditions at the Property (the “Hazard Notice”). A true and correct copy of the Hazard Notice is 17 attached hereto as Exhibit A. 18 56. The Hazard Notice lists the severe and dangerous structural issues with the Subject Unit, 19 and demands that the conditions at the Property be given immediate attention by requiring Defendant 20 Carrick & English to obtain the services of a structural engineer to further assess the conditions. If the 21 structural engineer determines that temporary shoring measures are required, the City demands that the 22 work be done immediately. 23 57. Moreover, the City of Burlingame imposed deadlines for the Board to meet with 24 respect to making the necessary repairs. The Board, as well as Defendant Carrick & English, failed to 25 meet the second deadline of March 1, 2023 to apply for permits for both structural repairs as well as 26 water intrusion repairs to the Subject Unit. 27 58. As of the date of filing this Complaint—over a year and a half after the purchase of the 28 Subject Unit—Plaintiff Little Mad Fish LLC and Plaintiff Nima Massoomi DMD MEd MD Inc. 11 FIRST AMENDED COMPLAINT 1 remain unable to use or occupy the Subject Unit. Plaintiff Little Mad Fish LLC has not been able to 2 move forward with necessary repairs or remodeling due to the Association and the Board’s 3 stonewalling tactics and refusal to cooperate in any manner. 4 59. As a result, Plaintiff Nima Massoomi DMD MEd MD Inc. has been unable to begin 5 operating its oral surgery office, and will not be able to begin operating such practice for the 6 foreseeable future. 7 60. Additionally, Plaintiffs Little Mad Fish LLC and Nima Massoomi DMD MEd MD Inc., 8 through their authorized representative Nima Massoomi, took out a federal small business association 9 (“SBA”) loan wherein Plaintiff Little Mad Fish LLC is the Borrower and Plaintiff Nima Massoomi 10 DMD Med MD Inc. is the Operating Company. The interest rate for the SBA loan will not be fixed 11 until Plaintiff Nima Massoomi DMD MEd MD Inc. occupies the Subject Unit. That is, Plaintiff’s 12 private bridge loan remains in place during the entirety of the construction period, which should have 13 been done by now (and thus, Plaintiff’s SBA loan rate should be fixed by now). Moreover, Plaintiff 14 Little Mad Fish LLC’s private bridge loan is tied to the prime rate, which has skyrocketed since 15 Plaintiff first took out the loan. Moreover, Plaintiff Little Mad Fish LLC’s loan was financed by First 16 Republic Bank, which was recently bought by Chase Bank. 17 61. Moreover, Plaintiff Little Mad Fish was relying on the extensions kindly given to it in 18 light of the Board’s subsequent failures, however, on May 22, 2023, the bank called Plaintiff’s 19 construction loans, and Plaintiff is now scrambling to come up with $800,000 in order to pay the bank 20 back. 21 62. As a direct result of Defendants’ action and/or inaction, Plaintiffs Cheese Bear LLC 22 and Nima Massoomi DMD MEd MD Inc. have continued to incur additional, significant, and 23 unnecessary damages, including but not limited to increased rates. 24 63. The conditions associated with the SBA loan include moving forward with construction 25 and remodeling plans according to a set schedule. Due to the Association and the Board’s failure to act 26 and conscious disregard for known water-related issues and defects at the Subject Unit, Plaintiff Little 27 Mad Fish LLC’s plans for remodel have been delayed and Plaintiffs have lost their funding because 28 the banks called the loans. 12 FIRST AMENDED COMPLAINT 1 64. In addition to failing to maintain the Property and the Subject Unit in accordance with 2 the Association’s governing documents, including its Declaration of Covenants, Conditions, and 3 Restrictions (“CC&Rs”), the Association has further failed to abide by its own governing documents, 4 including by failing to follow procedures mandated by the Bylaws and/or CC&Rs relating to elections, 5 annual meetings, and notice requirements. 6 65. Plaintiff Little Mad Fish LLC has specifically requested that the Association (whether 7 directly or through its agent Defendant Carrick & English) provide documentation to demonstrate the 8 holding of elections or annual meetings. The Association (whether directly or through its agent 9 Defendant Carrick & English) failed to provide such documentation. 10 66. Upon information and belief, instead of electing Board members through the vote of 11 Unit Owners at the regular annual meeting of the Association, in accordance with the Association’s 12 Bylaws, the Board has invalidly, internally appointed new directors. 13 67. In fact, when the Association finally made its books and records available to Plaintiff, 14 there was zero evidence of elections ever previously being held in the manner prescribed by the 15 Association’s governing documents, and further, little to no evidence of elections ever being held, in 16 any manner. 17 68. Unit Owners were only informed of such change in governance after the fact, through 18 an email sent by Defendant Carrick & English. 19 69. In fact, most recently, the Board has announced two different dates for the upcoming 20 election to fill the current director vacancy. The Association originally announced that the election 21 would be held at the annual holiday party on December 20, 2022. However, the “Call for Candidates” 22 form distributed by the Association in anticipation of the election indicates that the election will be 23 held on January 26, 2023. This is just one of many examples of the Board attempting to prevent 24 Plaintiffs and other Unit Owners from being informed, or from participating in the governance of the 25 Association. 26 70. Eventually, in April of 2023, a meeting was held for election results. The meeting 27 minutes reflect that the only persons in attendance at this meeting were the three current Board 28 members, as they were the only candidates listed on the ballot for this election, and two unit owners. 13 FIRST AMENDED COMPLAINT 1 All three existing Board members were allegedly reelected. And the members of the Association were 2 only advised of this when an update was sent by an agent at Defendant Carrick & English on May 4, 3 2023. 4 71. Additionally, the Board has continuously failed to provide notice of its regular meetings, 5 as provided for in its governing documents. As a result, Unit Owners have not been given the 6 opportunity to attend many of these meetings, despite their right to attend. Moreover, in recent months, 7 the Board has further engaged in tactics to prevent Association members from participating in the 8 Association by scheduling meetings only during normal working hours, and giving very little notice of 9 such meetings. When Plaintiff asked if the Board could hold the meeting simultaneously by Zoom, 10 Plaintiff received no response. 11 72. To make matters even worse, the Board continues to stonewall Plaintiff’s efforts to use 12 and enjoy the Subject Unit by baselessly refusing to approve construction plans concerning coring into 13 slab in the Property. Such coring is absolutely necessary for Plaintiff to operate a surgical dental 14 practice, and Plaintiff has already obtained all required city and state permits related to such 15 construction at the Subject Unit, and has further obtained such permits. Moreover, the Property is 16 specifically zoned for dental practices, which necessarily contemplated such coring. 17 73. Despite the fact that Plaintiff’s initially asked the Association for approval for the 18 necessary coring on December 9, 2022, as of the date of the filing of this Complaint, the Association 19 has arbitrarily and improperly refused to approve such plans. 20 74. These incidents constitute just two of many of the disruptive and abusive tactics 21 implemented by Defendants to interfere with Plaintiffs rights to use and enjoy the Subject Unit, and to 22 meaningfully participate in the Association. 23 FIRST CAUSE OF ACTION 24 (For Negligence-Count I By Plaintiff Little Mad Fish LLC Against Lorton Avenue and DOES 1 25 through 50) 26 75. Plaintiff hereby realleges, and by this reference incorporates herein, each and every 27 allegation in the preceding paragraphs as though fully set forth herein. 28 /// 14 FIRST AMENDED COMPLAINT 1 76. Defendants owed Plaintiff a duty of reasonable care to prevent, maintain, detect and/or 2 correct unreasonably unsafe or hazardous conditions and risks of harm in and around the common area 3 as it affected the Subject Unit. 4 77. Moreover, Defendants, as the owners of the Common Elements, owed Plaintiff a duty 5 to maintain their own property such that it does not harm others’ persons or property. 6 78. Defendants knew, or through the exercise of reasonable care should have known, that 7 their failure to exercise ordinary care with respect to the Common Elements would cause damage to 8 the Subject Unit due to water intrusion and related issues. Moreover, Defendants knew, or through the 9 exercise of reasonable care should have known, the conditions that would occur as a result of such 10 water intrusion or related issues, or the reasonably likelihood of such. 11 79. Defendants breached their duty by failing to use reasonable care in controlling, 12 maintaining, inspecting, repairing, and/or attempting to repair the Common Elements such that 13 damage was caused to the Subject Unit as a result of the ongoing water intrusion and related issues. 14 This damage includes, but is not limited to, water damage to the interior and exterior of the Subject 15 Unit, mold infestation, high levels of toxic black mold, and structural integrity issues. 16 80. Furthermore, Defendants failed to correct or otherwise address these issues, so that as a 17 direct and proximate result thereof, Plaintiff suffered damages in amount to be determined at trial. 18 81. Defendants’ conduct as described herein was done with a conscious disregard for 19 Plaintiffs’ rights, constitutes despicable conduct and was done with the intent to vex, injure and annoy 20 Plaintiff such as to constitute oppression, fraud or malice under Civil Cde section 3294, entitling 21 Plaintiffs to punitive and exemplary damages in an amount appropriate to punish or set an example of 22 Defendants, and each of them. 23 SECOND CAUSE OF ACTION 24 (For Negligence-Count II (Negligence Per Se) By Plaintiff Little Mad Fish LLC Against Lorton 25 Avenue and DOES 1-50) 26 82. Plaintiff hereby realleges, and by this reference incorporates herein, each and every 27 allegation in the preceding paragraphs as though fully set forth herein. 28 83. Pursuant to Civil Code § 6716, Defendants owed Plaintiff a duty to repair, replace, and 15 FIRST AMENDED COMPLAINT 1 maintain the common areas of the Property as it affected the Subject Unit, and to take reasonable steps 2 to prevent damages of this nature, including, but not limited to, water intrusion damage. 3 84. Plaintiff was and is a member of the class intended to be protected by § 6716, and § 4 6716 was intended to prevent damages of this nature. 5 85. Defendants breached the aforementioned statutory duty by failing to repair, replace, and 6 maintain the common areas, including Common Elements such as the foundations, walls, and 7 structural parts of the building, such that damage was caused to the Subject Unit and its contents as a 8 result of the ongoing water intrusion and its aftermath. The damage and threat of damage to the 9 Subject Unit were known by Defendants, or through the exercise of reasonable care should have been 10 known. 11 THIRD CAUSE OF ACTION 12 (For Breach of Fiduciary Duty By Plaintiff Little Mad Fish LLC Against Lorton Avenue and 13 DOES 1-50) 14 86. Plaintiff hereby realleges, and by this reference incorporates herein, each and every 15 allegation in the preceding paragraphs as though fully set forth herein. 16 87. The Association (Defendant Lorton Avenue), by and through the Board, owed a 17 fiduciary duty to perform its duties in good faith, in the best interests of the Association, and with such 18 care as an ordinarily prudent person in a like position would use under the circumstances. 19 88. Defendant Lorton Avenue breached its fiduciary duty by failing to exercise its 20 supervisory and managerial responsibilities in a reasonable manner, and abdicated its responsibilities 21 by engaging in the following conduct including, but not limited to, the following: 22 • Failing to comply with its own governing documents and the California Civil Code by 23 failing to timely maintain, repair, and replace the common area property within the 24 Property; 25 • Failing to devote sufficient attention to Defendant Lorton Avenue’s business, including, 26 but not limited to, the maintenance and repair of the common areas; 27 • Ignoring requests by Plaintiff to make repairs to the common areas; 28 /// 16 FIRST AMENDED COMPLAINT 1 • Taking actions that are arbitrary, capricious, and/or in violation of the restrictions 2 contained in the Association’s governing documents; 3 • Refusing to communicate with Plaintiff; and 4 • Failing to act in the best interest of the Association and its Members. 5 89. As a direct and proximate result of the numerous breaches of fiduciary duty by 6 Defendant, Plaintiff has been harmed and has suffered damages in an amount to be 7 proven at trial. 8 FOURTH CAUSE OF ACTION 9 (For Breach of the Declaration of Covenants, Conditions, and Restrictions By Plaintiff Little Mad 10 Fish LLC Against Lorton Avenue and DOES 1-50) 11 90. Plaintiff hereby realleges, and by this reference incorporates herein, each and every 12 allegation in the preceding paragraphs as though fully set forth herein. 13 91. Defendants owed various obligations to Plaintiff pursuant to the CC&Rs, including the 14 obligation under Section of the CC&Rs 14 to maintain, repair, and replace the common areas as it 15 affects the Subject Unit. A true and correct copy of the CC&Rs is attached hereto as Exhibit B. 16 92. At all times mentioned herein, Plaintiff complied with the CC&Rs. 17 93. Defendants materially breached the terms of the CC&Rs by failing to maintain and/or 18 repair the common areas and/or the damage caused to the Subject Unit, thereby rendering the Subject 19 Unit unfit, unusable, and unsafe for Plaintiff as set forth herein. 20 94. As a direct result of Defendants’ breach of the CC&Rs, Plaintiff has and will continue to 21 incur expenses, including, without limitation, the cost of replacing