ARI-MP 35 v. Hirschler Fleischer CA4/3

Filed 6/23/16 ARI-MP 35 v. Hirschler Fleischer CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
ARI-MP 35, LLC,
Plaintiff and Appellant, G050854
v. (Super. Ct. No. 30-2012-00608070)
HIRSCHLER FLEISCHER, ACP et al., OPINION
Defendants and Respondents.
Appeal from a judgment of the Superior Court of Orange County, Gail
Andrea. Andler, Judge. Affirmed.
Catanzarite Law Corporation, Kenneth J. Catanzarite, Nicole M.
Catanzarite-Woodward and Eric V. Anderton for Plaintiff and Appellants.
LINER, Maribeth Annaguey and Kathryn L. McCann for Defendant and
Respondent CBRE, Inc.
Skadden, Arps, Slate, Meagher & Flom, Peter B. Morrison and Kevin J.
Minnick for Defendant and Respondent LaSalle Bank, N.A.
Lester & Cantrell, Mark S. Lester, David Cantrell and Colin A. Northcutt
for Defendant and Respondent Hirschler Fleischer, APC.
* * *
In March 2014, Judge Gail Andler entered rulings on 49 motions made in
eight different superior court cases in a single minute order. She explained all the
motions were filed in “what has become known as the ‘ARI’ group of cases.” Judge
Andler stated, “As with the prior rounds of challenges to the pleadings, since the motions
raise issues and arguments common to all cases, the court will reflect the rulings . . . on a
single [m]inute [o]rder to be placed in each individual case file.”
This appeal arises out of judgments entered in what Judge Andler referred
to as “Case 7,” following the sustaining of three demurrers to the second amended
(operative) complaint (SAC) without leave to amend. Only one entity, a Delaware
limited liability company (LLC) named ARI-MP 35, LLC, appealed the ruling. For
convenience and clarity in this opinion we will refer to the appealing entity as Plaintiff.
We affirm the judgment of dismissal at issue in this appeal based on our conclusion the
applicable statute of limitations bars recovery.
PROCEDURAL HISTORY
The case concerns Plaintiff’s failed multi-million dollar investment in
commercial real estate. In 2006 Plaintiff invested in three office buildings collectively
known as Meridian Plaza located in Carmel, Indiana (the Property). The transaction was
promoted by ARI-Meridian Plaza, LLC (the Company), and its related entities and
1
affiliates, referred to collectively by the parties as the “ARGUS Defendants.”
The purchases were part of an Internal Revenue Code section 1031
exchange, which allowed investors to defer capital gains taxes on the sale of other real
1
The trial court sustained the ARGUS Defendants’ demurrer, however, these
entities are not parties to this appeal.
2
estate assets they owned. However, all did not proceed as planned and the investment
property was foreclosed upon.
In 2012, Plaintiff (as part of a class action complaint) sued over 30
defendants but only three, on the periphery of the transaction, are involved in this appeal
after the court sustained their demurrers and entered judgments of dismissal. The three
defendants are real estate broker CBRE, Inc., LaSalle Bank, N.A. (LaSalle), and the law
firm Hirschler Fleischer (Hirschler). For convenience and the sake of clarity these three
entities will be referred to collectively as Defendants, unless the context requires
otherwise.
Plaintiff amended its complaint several times in response to motion practice
2
by the Defendants. The operative SAC alleges 14 causes of action and groups the
Defendants into three categories. First, there are seven groups titled “Class Defendants”
because they are named by the “Class Plaintiffs.” Second, there are “Non-Class
Defendants” subject to individual claims. Third, there are “Doe Defendants.” This
appeal concerns only three “Class Defendants,” namely, CBRE, LaSalle and Hirschler.
For purposes of this appeal, the causes of action against these Defendants can be boiled
down to the breach of various fiduciary duties, intentional misrepresentation, and fraud
claims. In addition, there is a legal malpractice claim against Hirschler.
The trial court sustained Defendants’ demurrers to the SAC, without leave
to amend, in part, on the basis that all causes of action were barred by the applicable
statute of limitations. In the minute order, Judge Andler commented, “It is an
2
The court sustained demurrers to the original complaint without leave to
amend on Plaintiff’s claims for disgorgement and unfair business practices under
Business and Professions Code section 17200. Because Plaintiff does not appeal from
the court’s dismissal of its accounting and disgorgement claims they are not mentioned in
this opinion. The court granted Plaintiff leave to amend the other causes of action. The
court rejected the first amended complaint (FAC) on procedural grounds, and thereafter,
the Plaintiff filed the SAC which is identical in substance to the FAC.
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understatement to say that much time and effort has been spent by counsel and the court
discussing these pleadings, in some cases for years, in order to determine if a pleading
could be crafted which could survive a challenge. Each version of each complaint
generated demurrers and motions to strike. Although recognizing the valid concerns
expressed by a number of defendants, leave to amend was previously granted in
recognition of the great liberality the law provides for amending pleadings. There were
specific discussions as to what the concerns were, and counsel for Plaintiff had asserted,
at oral argument, that the deficiencies could and would be cured. . . . [P]laintiffs were put
on notice as to the need to plead with greater specificity regarding the roles played by
each of the defendants and their alleged acts or omissions. [¶] The court previously
commented that Plaintiff appear in some of the pleadings to simply sue anyone and
everyone who had anything to do with the transactions, regardless of how remote the
participation of some of the defendants might be.”
The trial court stated that in addition to sustaining the demurrers on statute
of limitations grounds, the court also considered and ruled on causes of action for
alternative grounds alleged by Defendants. For example, the court determined some of
the fraud-based causes of action failed because Plaintiff “still plead[ed] elements of . . .
each cause of action in general terms-identifying the alleged responsible defendant by
group, and failing to plead each element with specific facts. It strains credibility to
believe that none of the plaintiffs have any recall or records on which to rely in
sufficiently pleading these causes of action, given the nature of these transactions and the
amount of money involved.” Judge Andler added the aiding and abetting allegations fail
because Plaintiff failed to allege facts “that said defendants had ‘actual knowledge’ that
the directly liable defendant intended to commit ‘a specific wrongful act’ and that said
defendants gave substantial assistance to the directly liable defendant.” The court
repeated the pleadings were defective because, despite “having been previously
admonished” by the court, Plaintiff “continued to use ‘group pleading’ for apparently
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related entities . . . and the parties must be able to differentiate the specific roles, acts and
omissions alleged as to each defendant ‘lumped together’ in the group allegations.”
(Emphasis omitted.)
Plaintiff challenged this ruling on appeal, maintaining it timely filed the
complaint and adequately complied with the delayed discovery rule. We recognize the
trial court’s ruling was made after it took judicial notice of the parties’ Private Placement
Memorandum (PPM), and for purposes of this appeal, we also granted Hirschler’s motion
for judicial notice of the same applicable PPM.
FACTS
“In conducting our de novo review, we ‘must “give[ ] the complaint a
reasonable interpretation, and treat[ ] the demurrer as admitting all material facts properly
pleaded.” [Citation.] Because only factual allegations are considered on demurrer, we
must disregard any “contentions, deductions or conclusions of fact or law alleged . . . .”’
[Citation.]” (WA Southwest 2, LLC v. First American Title Ins. Co. (2015)
240 Cal. App. 4th 148, 151 (WA Southwest).)
The Allegations of Wrongdoing
The pertinent facts are alleged in Plaintiff’s pleadings and the PPM. In the
SAC, Plaintiff seeks the return of its investment money on the grounds it would not have
invested in the Property had it known the total up-front costs, or “Sales Loads,” actually
exceeded the 15 percent capital gains tax it sought to defer by making the investment.
Specifically, Plaintiff alleges there was an undisclosed $740,000 mark up in the purchase
price.
The PPM disclosed the Company was “formed to acquire” the Property. It
stated the Company would purchase the property from a third party seller for
$37,690,000 using a $27,600,000 loan and up to $5,430,000 in mezzanine financing from
LaSalle. ARI’s affiliate, ARI Commercial Properties, Inc. (ARICP), acted as the real
estate broker (and is listed as one of the ARGUS Defendants).
5
Plaintiff alleged the ARGUS Defendants used a PPM and marketing
materials to offer two types of “‘Securities’” in the “‘Offering.’” Using cash from a prior
sale of real property, investors could purchase either tenancy in common (TIC) interests
or LLC membership interests. The Offering required the help of several interrelated
3
ARGUS Defendants.
The class action included persons who purchased securities as membership
interests in the Company and “Special Purpose Entities” (SPEs) organized by Defendants
under names ARI-MP 1, LLC through ARI-MP 39, LLC, each of which acquired
separate TIC interests. Of the 39 SEPs who purchased TIC interests, only one is
appealing.
In its complaint, Plaintiff stated, “The ARGUS Defendants orchestrated a
scheme whereby the Property was placed under contract by straw-buyer [the Company],
a newly organized company with nominal capital and unable to close the purchase. In a
simultaneous closing [investors] provided virtually all of the down payment funds which
combined with the purchase money bank loan from [LaSalle], allowed the Property
closing to occur. While [investors] provided virtually all of the down payment funds they
ended up with less than all of the TIC [i]nterests ownership while the remainder was held
by [the Company] which had no independent ability to buy anything. The [investors]
acquiring at the Property closing were deceived through the use of double escrows which
made it appear [the Company] was selling them the TIC [i]nterests in the Property when
in fact they were direct purchasers providing virtually of the funds to close the deal.
3
The Company was affiliated with several other ARGUS Defendants. As
previously mentioned, ARICP was a real estate broker and later served as a property
manager of the Property. Argus Realty Investors, L.P. (Managing Member) was the
managing member of the Company. Argus Realty, LLC (Argus Realty) was the general
partner of Managing Member and sponsored ARI’s sale of the TIC and LLC interests.
Also included within the grouping of ARGUS Defendants were several individuals who
managed and ran the various entities (Richard Gee, Maxwell Drever, Timothy Snodgrass,
Harris Totakhail, Joseph Corpal, and David Wong).
6
Thereafter over a roughly seventy-five day period, [the Company] would sell the
remainder of the Property ownership to those members of the Class who would purchase
TIC [i]Interests post-closing of the Property, thereby pocketing those funds as well.”
(Underline omitted.)
Plaintiff alleged the ARGUS Defendants and their counsel, Hirschler,
prepared and distributed the PPM and marketing materials. Plaintiff asserted CBRE
“appeared to act initially only as the seller’s real estate agent in the purchase of the
Property” but CBRE knew the purchase price was illegally marked up and it had a duty to
disclose the scheme to Plaintiff. Plaintiff alleged CBRE also had a duty to disclose
because it agreed, prior to closing, to act as the buyers’ leasing agent post-closing.
Plaintiff asserted the PPM represented the property’s purchase price “was
the same as that which had been negotiated with the unrelated seller who was paying the
commission” to ARICP. Plaintiff stated it was led to believe the “price had been agreed
upon that had the unrelated seller paying the commission to [ARICP] not [Plaintiff].” It
alleged Defendants “participated in marking up the purchase price to hide the true facts
that both [ARICP] and CBRE were receiving commissions described as paid by the
Property seller when the truth was the unknowing [Plaintiff was] paying the buyers’
commission as a hidden ‘Sales Load’ (as described below).”
Plaintiff maintained it and other investors funded the entire down payment
to acquire the Property and then the Company claimed “to have purchased the Property
for the commission-grossed-up price of $37,690,000 (the ‘Purchase Price’) (grossed up
by at least $740,000 commission paid to [ARICP], the ‘Markup’) at ‘Closing.’” Plaintiff
alleged, “The true costs and true purchase price of the Property was concealed through
the use of double blind escrows where the [investors] were falsely led to believe that the
Company had acquired the Property and sold it to them when in fact they provided
virtually all the required funds.”
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The SAC discussed several misrepresentations and non-disclosures.
Plaintiff alleged the Company raised $15,250,000 and represented the “Sales Loads,”
“the amount disclosed as the cost to offer real estate Securities including securities sales
commissions, fees and costs, to be a total of $1,827,000 or 12 [percent] of the Gross
Offering Proceeds of $15,250,000.”
Plaintiff stated that had it known the Sales Loads would be 16.9 percent,
4
which is greater than capital gains taxes, it would not have purchased the Securities. In
addition to the misrepresented Sales Loads, Plaintiff questioned the amount of loan fees,
the need for carrying costs, and complained the PPM falsely promised a suitability review
of all investors. Plaintiff did not allege the loan fees, costs or suitability review were
material to its decision to make the investment.
Information Disclosed at Time of Investment in the PPM
The Company offered TIC and LLC interests in the Property as set forth in
the PPM. It explained, “For the purposes of this investment, the price of an Interest
includes not only a percentage of debt and cash for the purchase price of the Property but
also a percentage of (i) the Selling Commissions and Expenses (as herein defined), (ii) a
real estate brokerage commission of $740,000 payable to [ARICP,] an Affiliate of the
Company, and (iii) a promotional fee of $377,000 payable to the Company.” (Italics
added.)
The PPM contained a section titled, “ESTIMATED USE OF PROCEEDS.”
This section contained a detailed chart setting forth the estimated use of the $15,250,000
investment proceeds raised from investors. The chart did not classify the expenses the
same way. Four categories of expenses (amounting to 12 percent) were subtracted from
4
Plaintiff calculates this figure as follows: $740,000 of the $15,250,000
maximum equity contribution is 4.9 percent. Plaintiff argue PPM disclosed a Sales Load
of 12 percent, but with the additional 4.9 percent, the Sales Load increased to 16.9
percent.
8
the gross offering proceeds of $15,250,000, resulting in a line item labeled “Available for
Investment” of $13,423,000. Thus, in the scenario in which the full amount of equity
was raised as follows:
$1,144,000 (7.5 percent) would be used to pay “Selling Commissions”;
$150,000 (1.0 percent) would be used to pay “Offering and Organization
Expenses”;
$305,000 (2 percent) would be held for a “Marketing Allowance”;
$76,000 (0.5 percent) would be for a “Non-Accountable Due Diligence
Allowance”;
$76,000 (0.5 percent) would be for an “Accountable Due Diligence
Allowance”; and
$76,000 (0.5 percent) would be for a “Placement Fee.” Several of these
itemized expenses have a corresponding footnote containing further explanations, which
we will discuss anon.
After these sums were subtracted from the gross offering proceeds, and
below the line item of money “Available for Investment,” the chart lists the remaining six
accounted for expenses. The first expense, titled, “Down Payment-Purchase of Property”
(80.9 percent) is followed by a list of five sub-categories relating to the down payment.
Footnote 5, inserted next to the “Down Payment” category advised that in addition to the
down payment, the Company “anticipates obtaining” a loan and the Company will
receive a promotional fee of $377,000 “for its role in the Offering.” This helps explain
why directly under the line item “Down Payment” there are five expenses related to
taking out a loan, including loan fees and costs, promotional fees, lender legal fees,
carrying costs, and closing costs. The estimated amounts for these expenses were as
follows:
$12,340,000 (80.9 percent) would be used as a down payment on the
Property;
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$377,000 (2.5 percent) would be used to pay the “Promotional Fee”;
$276,000 (1.8 percent) would be used to pay loan fees and costs;
$150,000 (1 percent) would be used to pay estimated carrying costs;
$230,000 (1.5 percent) would be used to pay the estimated closing costs;
and
$50,000 (0.3 percent) would be used to pay lender legal fees. Several of
these expenses have a corresponding footnote containing further explanations, which we
will discuss anon.
Relevant to this case, the ESTIMATED USE OF PROCEEDS’s chart is on
the same page as, and immediately above, a paragraph describing the buyer’s obligation
to pay a $740,000 real estate brokerage commission (the ARICP Paragraph). Plaintiff
maintains this $740,000 was a hidden fee used to gross up the purchase price. It believed
the PPM promised this fee was the seller’s obligation.
The ARICP Paragraph begins with the statement ARICP “will receive
$740,000 from the [s]eller as a real estate brokerage commission on the purchase of the
Property.” The second sentence clarifies, “Commissions are normally paid by the seller
rather than the buyer. However, the purchase price will generally be adjusted upward to
take into account this obligation of the [s]eller so that in effect the [TICs] as the buyers,
will collectively bear all of this real estate brokerage commission in the purchase price of
the Property. The [TICs] also expect to pay commissions in connection with the sale of
the Property, which will reduce the net proceeds to the [TICs] of any such sale.” (Italics
added.) In short, the TIC investors were warned they would be responsible for paying a
portion of the seller’s broker’s commission ($740,000) in addition to other commissions
earned during the sale of the Property.
The $740,000 commission is not separately listed on the ESTIMATE USE
OF PROCEEDS chart of expenses, however, there was listed an estimated $1,144,000 in
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“Selling Commissions.” It is unclear from the chart whether ARICP’s $740,000
commission is included within this larger sum of “Selling Commissions.”
The PPM contained additional information regarding commissions and
further defined “Selling Commissions and Expenses.” For example, footnote 2, typed
next to “Selling Commissions” explained the nature of the expenses listed below it.
Footnote 2 stated, “The Company, for itself, may accept subscriptions for Interests net of
all or a portion of the Selling Commissions otherwise payable as described under
DISTRIBUTION PLAN.” This sentence is difficult to understand without also reviewing
the DISTRIBUTION PLAN (hereafter the Distribution Plan), found on page 39 of the
PPM.
The Distribution Plan portion of the PPM stated the $15,250,000 Offering
is for “up to 100 [percent] of the Interests in the Property” and the minimum purchase
was for three percent.
The Distribution Plan anticipated “Broker-Dealers (collectively the ‘Selling
Group’)” would offer and sell the units to qualified investors to raise the cash needed for
capitalization. The Managing Broker-Dealer would supervise and coordinate the Selling
Group members, who “will receive Selling Commissions of up to 7.5 [percent] of the
gross proceeds of the Offering.” The Managing Broker-Dealer can also receive a 2
percent “nonaccountable marketing allowance,” a 0.5 percent “nonaccountable due
diligence allowance,” a 0.5 percent “accountable due diligence allowance” and a 0.5
percent “placement fee.” Therefore, the Managing Broker-Dealer and Selling Groups
were owed “Selling Commissions and Expenses” comprised of “Selling Commissions,” a
placement fee, a marketing allowance, and a due diligence allowance totaling (and not to
exceed) 11 percent “of the gross proceeds of the Offering.”
As mentioned earlier, the ESTIMATED USE OF PROCEEDS chart did not
classify all the expenses the same way and listed four expenses (amounting to 12 percent)
that were subtracted first from the gross offering proceeds of 15,250,000, resulting in a
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line item labeled “Available for Investment” of $13,423,000. After reviewing the
footnotes and the Distribution Plan, it becomes apparent these four expenses (totaling 12
percent) are classified differently than the others because it was anticipated the Company
could only be capitalized with net proceeds from the offering (calculated by subtracting
from the gross proceeds the “Selling Commissions,” which included a placement fee, a
marketing allowance, and a due diligence allowance, plus the “Offering and Organization
Expenses.” Thus, 12 percent was subtracted first from the $15,250,000 representing
gross proceeds. The second grouping of expenses (the down payment, loan costs, and
promotional fees) were listed separately.
In summary, the ESTIMATED USE OF PROCEEDS chart, the ARICP
paragraph, and various footnotes revealed a potential “Selling Commission” of
$1,144,000 in the category of expenses used to calculate net proceeds to capitalize the
Company. We recognize it is unclear whether ARICP’s $740,000 brokerage commission
was included as part of this category of expense or was intended to be a separate and
additional obligation. There is no evidence the investors were told one way or the other.
However, what is plainly clear is the PPM disclosed to Plaintiff the obligation to pay a
Selling Commission and ARICP’s commission.
The PPM also warned “The purchase price to be paid by investors for the
Interests exceeds the aggregate appraised value of the Property. The Company intends
to purchase the Property for $37,690,000 . . . plus additional carrying costs, due diligence
expenses, and other fees and expenses incurred in the acquisition and financing of the
Property. . . . The Company intends to acquire proceeds from the sale of all of the
Interests, together with the Loan, equal to $42,850,000. The purchase price for Interests
is determined unilaterally by the Company and likely does not reflect the current market
value of the Property, and is not based on an arm’s length negotiation with the Purchasers
or supported by an appraisal of the Property. In fact, the total purchase price . . . will be
significantly higher than the purchase price to be paid by the Company in its acquisition
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of the Property.” In summary, the PPM revealed the sale price was being marked up to
cover other fees and costs.
And finally, simple arithmetic shows the investment totaled $42,850,000
($15,250,000 equity from investors plus a $27,600,000 bank loan), which far exceeded
the reported purchase price of the property ($37,690,000). Additionally, the PPM
contained multiple risk warnings, in bold italicized print, that the venture was “highly
speculative and involve[d] a high degree of risk.” Investors were advised to consult their
own legal and tax advisors “to ascertain the merits and risks of an investment in the Units
before investing.” The PPM also warned in bold type, “This Memorandum contains
forward-looking statements that involve risks and uncertainties.” (Bold emphasis
omitted.)
DISCUSSION
1. Standard of Review
A demurrer is used to test the sufficiency of the factual allegations of the
complaint to state a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) The facts
pled are assumed to be true and the only issue is whether they are legally sufficient to
state a cause of action. “In reviewing the sufficiency of a complaint against a general
demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all
material facts properly pleaded, but not contentions, deductions or conclusions of fact or
law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.]
Further, we give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context. [Citation.] When a demurrer is sustained, we determine whether
the complaint states facts sufficient to constitute a cause of action. [Citation.] And when
it is sustained without leave to amend, we decide whether there is a reasonable possibility
that the defect can be cured by amendment: if it can be, the trial court has abused its
discretion and we reverse; if not, there has been no abuse of discretion and we affirm.
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[Citations.] The burden of proving such reasonable possibility is squarely on the
plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.)
Moreover, “As a general rule in testing a pleading against a demurrer the
facts alleged in the pleading are deemed to be true, however improbable they may be.
[Citation.] The courts, however, will not close their eyes to situations where a complaint
contains allegations of fact inconsistent with attached documents, or allegations contrary
to facts which are judicially noticed.” (Del E. Webb Corp. v. Structural Materials Co.
(1981) 123 Cal. App. 3d 593, 604.)
2. Applicable Statutes of Limitations & Delayed Discovery Rule
The gravamen of Plaintiff’s complaint is it overpaid for the Property
because the purchase price was bumped up to extract additional fees. Plaintiff claims it
would not have invested if it had known the “Sales Load” (i.e., the fees, expenses, and
commissions paid) exceeded the capital gains tax rate of 15 percent. In their demurrers,
Defendants argued the applicable statute of limitations barred all claims. On appeal, the
parties agree the applicable statute of limitations was three years. (Code Civ. Proc.,
§ 338, subd. (d).) Plaintiff purchased the property in 2006 and the initial complaint was
not filed until 2012.
“Generally speaking, a cause of action accrues at ‘the time when the cause
of action is complete with all of its elements.’ [Citations.] An important exception to the
general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of
action until the plaintiff discovers, or has reason to discover, the cause of action.
[Citations.]” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4th 797, 806-807.) “A
plaintiff has reason to discover a cause of action when he or she ‘has reason at least to
suspect a factual basis for its elements.’ [Citations.] Under the discovery rule, suspicion
of one or more of the elements of a cause of action, coupled with knowledge of any
remaining elements, will generally trigger the statute of limitations period. [Citations.]”
(Id. at p. 807.) “The discovery rule only delays accrual until the plaintiff has, or should
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have, inquiry notice of the cause of action.” (Ibid.) “The discovery rule . . . allows
accrual of the cause of action even if the plaintiff does not have reason to suspect the
defendant’s identity.” (Ibid.)
In its appeal, Plaintiff argues the court should have applied the delayed
discovery rule to toll the statute of limitations in this case. “‘By [its] reliance on the
“discovery rule,” [Plaintiff] concede[s] by implication that, without it, [the] claims are
barred by one or more statutes of limitations.’ [Citation.] Unless the discovery rule
applies, the statute of limitations began running when [Plaintiff] made what [it] now
deem[s] to be unsuitable investments, paid what [it] now deem[s] to be an unreasonable
(and undisclosed) ‘Sales Load,’ and had in [its] possession documents disclosing the
downsides of the investment (e.g., the risks of the investment and the expenses beyond
the acquisition price of the Property).” (WA Southwest, supra, 240 Cal.App.4th
at p. 156.)
“California law recognizes a general, rebuttable presumption, that Plaintiffs
have ‘knowledge of the wrongful cause of an injury.’ [Citation.] In order to rebut that
presumption, ‘“[a] plaintiff whose complaint shows on its face that his claim would be
barred without the benefit of the discovery rule must specifically plead facts to show
(1) the time and manner of discovery and (2) the inability to have made earlier discovery
despite reasonable diligence.” [Citation.] In assessing the sufficiency of the allegations
of delayed discovery, the court places the burden on the plaintiff to “show diligence”;
“conclusory allegations will not withstand demurrer.’ [Citation.]” (Grisham v. Philip
Morris U.S.A., Inc. (2007) 40 Cal. 4th 623, 638.)
In its operative complaint, Plaintiff denied knowledge of facts that would
make it question the reliability of Defendants’ representations regarding the TIC
investments. On appeal, Plaintiff maintains the court erred in finding allegations of time,
manner of discovery, and inability to have made an early discovery, were conclusory.
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Plaintiff asserts it adequately alleged the time and manner of discovery in
the SAC. The complaint alleged the fraud was not discovered by Plaintiff until the TIC
interests were “brought to counsel for consultation following the Medtronics’ relocation
representations” in a different real estate litigation case, referred to as the “Shoreview
Litigation” involving the ARGUS Defendants. Plaintiff alleged, “During counsel’s
investigation of Shoreview Property [the investors] discovered the seller-paid
commission/purchase price mark-up fraud. The investigation led from one transaction to
another until reaching Plaintiff[] here who requested in . . . . 2012 that counsel review the
offering documents in this case.” Plaintiff asserts this allegation clearly states when and
how it discovered the wrongdoing.
Plaintiff also asserts the court erroneously determined it did not allege the
inability to discover the misconduct earlier despite reasonable diligence. In the SAC,
Plaintiff alleged it could not have with diligence discovered the fraud because it
reasonably relied on the ARGUS Defendants’ representations and marketing. Plaintiff
maintains that after the acquisition, the ARGUS Defendants continued to provide services
as a fiduciary to the Plaintiff in the form of property management, leasing, accounting,
and other property-related services.
3. The WA Southwest Case
After briefing was completed in this appeal, a different panel of this court
published the WA Southwest case and we gave the parties an opportunity to submit letter
briefs to discuss its relevance to this appeal. The case is essentially identical to the one
before us now.
Both cases concern failed real estate investments in which investors sought
to defer payment of capital gains taxes by investing in TIC interests in real property
marketed by investment firms. (WA Southwest, supra, 240 Cal.App.4th at pp. 152-153.)
In both cases, the plaintiffs invested after receiving a PPM containing detailed disclosures
and risk warnings. The cases involved deals whereby a company expected to purchase
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property from a third party and then offer investors the opportunity to purchase TIC
interests in the property. (Id. at p. 153.) And, in both cases, the investors lost their
money and (represented by the same law firm) sued seemingly every entity or individual
with any connection whatsoever to the investments, claiming they would not have
invested had they known about hidden fees that increased the Sales Loads above the
capital gains tax rate. (Ibid.) In our case, and in WA Southwest, the trial court sustained
demurrers and entered judgment for certain defendants based on, among other things, the
applicable statutes of limitations. (Id. at p. 150.)
In WA Southwest, the court affirmed the judgment of dismissal, holding that
the plaintiffs were on inquiry notice of their injury at the time of their investments
because of detailed disclosures in the PPM they received prior to investing. (WA
Southwest, supra, 240 Cal.App.4th at pp. 157-158.) The disclosures in WA Southwest
revealed that the negotiated purchase price of the property was $11.6 million, but
$13,170,000 was being raised so that other expenses could also be paid, including a
$505,000 fee payable to an investment organizer/promoter company. (Id. at
pp. 153-154.) The disclosures did not suggest the seller of the property was paying the
$505,000 fee or any of the other expenses making up the difference between the
negotiated purchase price and the total investment cost. (Ibid.) Accordingly, the WA
Southwest court rejected the plaintiffs’ theory they were not on notice the additional fees
created a Sales Load greater than the capital gains tax rate they wanted to avoid.
Similarly, in this case the front page of the PPM plainly disclosed the price
for investment included “not only a percentage of debt and cash for the purchase price”
but also a percentage of three additional costs, namely (1) selling commissions and
expenses, (2) a $740,000 “real estate brokerage commission” paid to ARICP, and (3) a
$377,000 promotional fee paid to the Company. This disclosure did not suggest the seller
was paying the $740,000 commission or the other anticipated additional expenses. The
PPM’s first page plainly stated the investor was expected to pay a percentage of the
17
purchase price plus a large promotional fee, a large brokerage commission, and “Selling
Commissions and Expenses.”
The investor’s obligation to pay these three expenses in addition to the
purchase price is repeated on page 13 of the PPM. As mentioned above, the
ESTIMATED USE OF PROCEEDS chart contains two groupings of expenses (1) the
expenses related to capitalization of the Company, and (2) the down payment expenses.
The $377,000 promotional fee listed on the first page is specifically included as a stand-
alone cost within the chart’s second group of expenses (of down payment costs). The
first page’s reference to “Selling Commissions and Expenses” is one of the categories of
expenses listed as part of the first group of expenses related to capitalization. The third
expense listed on the first page, ARICP’s $740,000 commission, is not specifically
identified on the chart. However, a detailed description of this expense was included in
paragraph directly beneath the chart, i.e., the ARICP Paragraph.
Plaintiff focuses on the first sentence of the ARICP Paragraph that states
ARICP “will receive $740,000 from the [s]eller as a real estate brokerage commission on
the purchase of the Property.” However, the sentence cannot be viewed in a vacuum.
The next sentence explains that the commission, “normally paid by the seller,” will in
fact be paid by the buyers, and the purchase price “will generally be adjusted upward to
take into account this obligation of the [s]eller so that in effect the [TICs] as the buyers,
will collectively bear all of this real estate brokerage commission in the purchase price of
the Property.” (Italics added.) This paragraph confirms the statement made on the first
page of the PPM that the buyers were obligated to pay the $740,000 and further explained
the purchase price would be grossed up to cover this cost. The ARICP paragraph
concludes, “The [TICs] also expect to pay commissions in connection with the sale of the
Property, which will reduce the net proceeds to the [TICs] of any such sale.” This last
sentence suggests the $740,000 would be in addition to the “Selling Commissions and
Expenses” listed in the first group of costs in the ESTIMATED USE OF PROCEEDS
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chart. As mentioned, those selling commissions reduced the net proceeds related to
capitalization of the company, i.e., the expense outlined in the Distribution Plan portion
of the PPM.
In the WA Southwest case, the court rejected the plaintiffs’ argument the
statute of limitations only began running when they consulted tax and accounting
specialists six years after they made their investment, concluding this argument ignores
the disclosures made in the PPM. It stated, “The problem with this position is that the
private placement memorandum provided to plaintiffs prior to their investments clearly
disclosed the fees, expenses, and commissions that would be paid out of their cash
investments, as well as the risky nature of the investments. These were illiquid,
unregistered securities, which were only made available to accredited investors.
Reasonable diligence in such circumstances does not consist of ignoring a private
placement memorandum received prior to making an investment. (See Casualty Ins. Co.
v. Rees Investment Co. (1971) 14 Cal. App. 3d 716, 719-720 [tenant plaintiff failed to
plead reasonable diligence in discovering unfair terms of lease in its possession]; Marlow
v. Gold (S.D.N.Y., June 13, 1991, No. 89 Civ. 8589 (JSM)) U.S.Dist. Lexis 8106, p. *27
[‘plaintiff abrogated his duty of inquiry of reasonable diligence by recklessly failing to
familiarize himself with the prospectus’].) This is not a case in which the plaintiff
‘possessed no factual basis for suspicion.’ (E-Fab, Inc. v. Accountants, Inc. Services
(2007) 153 Cal. App. 4th 1308, 1326.) The information and disclosures in the private
placement memorandum put plaintiffs on notice of the falsity of any communications
they may have received about the sales load, tax advantages, or risk-free nature of the
investments. The delayed discovery rule does not apply.” (WA Southwest, supra, 240
Cal.App.4th at p. 157.)
We agree with the WA Southwest case’s discussion that the existence of
alleged fiduciary relationships does not give Plaintiff in this case a free pass with respect
to the statute of limitations. “‘Where a fiduciary obligation is present, the courts have
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recognized a postponement of the accrual of the cause of action until the beneficiary has
knowledge or notice of the act constituting a breach of fidelity. [Citations.] The
existence of a trust relationship limits the duty of inquiry. “Thus, when a potential
plaintiff is in a fiduciary relationship with another individual, that plaintiff’s burden of
discovery is reduced and he is entitled to rely on the statements and advice provided by
the fiduciary.”’ [Citation.] But, even assuming for the sake of argument that each of the
respondents had a fiduciary duty to plaintiffs, this does not mean that plaintiffs had no
duty of inquiry if they were put on notice of a breach of such duty. [Citation.]” (WA
Southwest, supra, 240 Cal.App.4th at p. 157.) As discussed earlier in this opinion,
Plaintiff relying on the discovery rule must plead “‘“the inability to have made earlier
discovery despite reasonable diligence.”’ [Citation.] Plaintiffs have an obligation to
plead facts [and no conclusory allegations] demonstrating reasonable diligence.
[Citation.]” (Ibid.)
Also applicable to this case is the WA Southwest case’s discussion that a
potentially misleading disclosure in the PPM did not create an issue of fact as to whether
Plaintiff was on notice of the full Sales Loads. (WA Southwest, supra, 240 Cal.App.4th at
p. 158.) In the WA Southwest case, the chart estimating the use of investment proceeds
did not classify a $505,000 acquisition fee “as a cost to investors in the same way as
selling commissions or organization and offering expenses.” (Ibid.) The plaintiffs in that
case argued this separation could be read as increasing the value of the property, even
though elsewhere in the PPM the item was described as an expense not an asset. The
court disagreed, stating, “But it cannot be denied that the entire sales load, including the
$505,000 fee, was disclosed to plaintiffs in the [PPM]. The payment of these fees was
the alleged harm suffered by plaintiffs. One can certainly question, particularly in
retrospect, the value of the services provided by [the entity receiving the acquisition fee]
and the reasonableness of the total sales load. But the only issue here is whether
plaintiffs were on notice of the total sales load and the risks of the investment. They
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were.” (Ibid.) In our case, the $740,000 commission was not specifically classified
anyplace on the ESTIMATED USE OF PROCEEDS chart, which supports Plaintiff’s
theory it was arguably misleading how they should categorize this anticipated expense.
And in hindsight, Plaintiff questions the validity of the commission. But as was the case
in WA Southwest, it cannot be denied that the entire Sales Load, including the $740,000
expense, was disclosed to Plaintiff in the PPM. It was put on notice and cannot toll the
statute of limitations by pleading delayed discovery.
As in the WA Southwest case, the PPM in this case disclosed a long list of
“RISK FACTORS.” One risk disclosed was that the purchase price paid by the investors
exceeds the appraised value of the Property. The PPM explained the Company will
purchase the property for “$37,690,000 . . . plus additional carrying costs, due diligence
expenses, and other fees and expenses incurred in the acquisition and financing of the
Property.” It expressly warned, “The purchase price . . . is determined unilaterally by the
Company and likely does not reflect the current market value of the Property . . . . In fact,
the total purchase price for the Interests will be significantly higher than the purchase
price to be paid by the Company in its acquisition of the Property.” (Italics added) Thus,
the PPM did not hide the fact the purchase price could be grossed up significantly. One
only needed to add up the PPM’s total maximum investment collected from the TIC
investors ($15,250,000) plus the loan ($27,600,000) to see it is obviously much higher
than what the Company paid for the Property.
In conclusion, Plaintiff was told the negotiated purchase price of the
Property would be grossed up so that fees and costs, and an additional $740,000
commission, could be paid to ARICP. The disclosure explained this fee, normally paid
by the seller, would be the buyer’s obligation. The entire Sales Load, including the
$740,000 fee, was disclosed in the PPM. It is the payment of this fee that is the alleged
harm suffered by Plaintiff.
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In the case before us, the SAC does not allege Plaintiff was prohibited from
asking questions about ARICP’s commission or advised not to seek independent legal,
financial, or tax advice. Plaintiff offers no explanation as to why the disclosures in the
PPM failed to put it on inquiry notice before investing millions of dollars in a risky and
highly speculative commercial real estate deal. We conclude that based on the PPM’s
disclosures, Plaintiff in this case was on inquiry notice.
Plaintiff attempts to factually distinguish the WA Southwest case on the
grounds its SAC “does not allege that the investment was [orally] represented as ‘risk
free,’ ‘not risky’ or that [Plaintiff] believed that the investment was free of any risk.” In
other words, Plaintiff believes its case is distinguishable because there were no oral
representations further misleading it or that would have contradicted the documents
describing the investment as being highly risky. It argues sustaining the demurrer would
create a “new rule of law that investors are always on notice of fraud whenever an
investment prospectus utters the word ‘high risk.’” We conclude this factual distinction
hurts not helps Plaintiff because it highlights that unlike the WA Southwest plaintiffs,
Plaintiff in this case did not allege it was mislead by oral representations and as a result
excused from reading the PPM’s disclosures. And, in any event, the WA Southwest’s
court’s holding was not dependent on the existence of oral misrepresentations. To the
contrary, the court’s analysis was not influenced by this fact one way or the other.
The plaintiffs in WA Southwest alleged they received oral
misrepresentations recommending the deal and promising the Sales Load would be less
than 10 percent. (WA Southwest, supra, 240 Cal.App.4th at p. 152.) This fact was
mentioned in the factual summary of the case but was not relevant to the holding of the
case affirming the judgment. The oral misrepresentations were not part of the analysis
because these facts did not change the undisputed evidence those plaintiffs received
actual written notice of the total Sales Load and the risks of the investment because it was
disclosed to them in the PPM. “[The PPM’s disclosures] was sufficient to put Plaintiffs
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on notice that the ‘sales load’ exceeded the capital gains tax rate. This is not akin to a
situation in which a party relies on the statements of a fiduciary about, for instance, the
legality of a complicated transaction. [Citation.] Plaintiffs only needed the private
placement memorandum and a calculator to obtain the information they now deem
essential.” (WA Southwest, supra, 240 Cal.App.4th at p. 158.) The oral
misrepresentations neither excused Plaintiff from its duty of inquiry nor heightened its
duty to investigate. The fact was deemed irrelevant.
In this opinion we are not suggesting investors should be on notice of fraud
whenever a PPM warns the investment is high risk. Rather, we agree with the WA
Southwest case’s holding that “reasonable diligence” does not consist of ignoring a PPM
received prior to an investment that clearly discloses the anticipated fees, expenses, and
commissions that would be paid out of the cash investment.
In its letter brief, Plaintiff asserts the case is materially different from WA
Southwest because the SAC included allegations the PPM promised a suitability review
as to each of the TIC investors “in order to determine whether the investment was
suitable.” Plaintiff fails to explain why this is a factual distinction that makes a
difference. How does this fact make WA Southwest’s holding inapplicable? We
conclude this is a red herring argument.
We acknowledge the SAC alleged ARGUS Defendants used the suitability
review as pretext to collect personal and private financial information from the TIC
investors and “the TIC Interests were sold to anyone who submitted a subscription.” On
appeal, Plaintiff does not explain why this qualifies as a material misrepresentation
sufficient, standing alone, to maintain causes of action against these Defendants. It is not
alleged an unsuitable TIC investor was a contributing cause to the damages caused by the
investment’s failure or, for that matter, the cause of any damages. Nor does Plaintiff
claim it would not have invested in the Property had it known this fact at the time. It
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offers no additional facts that could be pled to create a viable cause of action against
these specific Defendants based on this alleged misrepresentation.
For all the above reasons, we find the WA Southwest case on all fours with
ours. As in the WA Southwest case, Plaintiff failed to meet its burden of alleging the
necessary facts for the delayed discovery rule to apply. It was given the opportunity to
amend and do not argue any way it could amend to survive the statute of limitations
obstacle. The trial court correctly sustained the demurrer.
DISPOSITION
The judgment is affirmed. Respondents shall recover costs incurred on
appeal.
O’LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
MOORE, J.
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