Case Name: Berg, et al. v. Metaview Wholesale Investments, LP, et al.

 

Case No.: 114CV259237

 

Plaintiffs Clyde Berg, Christopher Ellis, Richard Jay, and Dorothy Jay move, pursuant to Corporations Code § 15902.05(a)(1) and (3), for an order compelling Defendants Metaview Wholesale Investments, LLC  (“Metaview LLC”) and Terry Houghton to sign the Form LP-2 Amendment to Certificate of Limited Partnership (Form LP-2).  Plaintiffs also move to recover reasonable expenses incurred in connection with this proceeding pursuant to Corporations Code § 15902.05(b).

 

I.  Requests for Judicial Notice

 

Plaintiffs request judicial notice of the First Amended Complaint. Records of any court of the state may be judicially noticed. Evid. Code, §452(d). Therefore, the First Amended Complaint is judicially noticed.

 

In their memorandum of points and authorities, Defendants state: “To the extent that Plaintiff do not contest that the attached document is in fact the [Partnership] Agreement, this Court may take judicial notice of the Agreement.”  (Opposition Memorandum, at 4:20-22.  The import of this language is not clear, since Defendants have authenticated the Partnership Agreement as Exhibit A to the Houghton Declaration.  To the extent that this reference in the memorandum is intended to be a request for judicial notice, such a request is denied for failure to comply with Rule of Court 3.1113(l) which requires that a request must be set forth in a separate document.

 

II.    Petition

 

Plaintiffs are limited partners of Metaview LP, a California limited partnership. (Complaint, ¶ 15.)  Metaview LLC, managed by Houghton and owned by Houghton, Valerie Houghton, Edic Silva and Lisa Tollner-Silva, was the general partner. (Houghton Decl. ¶ 2-3.)  On April 18, 2014, Plaintiffs filed a complaint seeking, inter alia, the removal of Metaview LLC as general partner and dissolution of Metaview LP.  (Dorsi Decl. Ex. A.)  The next day, Plaintiffs sent a notice of removal of Metaview LLC as general partner.  (Dorsi Decl. Ex. B.)

 

On May 14, 2014, Metaview LLC called a meeting for May 28, 2014, and asserted that the Partnership Agreement did not authorize the actions sought by Plaintiffs.  (Dorsi Decl. Ex. C.)  The next day, Plaintiffs sent notice of a meeting also scheduled for May 28, 2014, to elect a new general partner and to consider whether or not to dissolve Metaview LP. (Dorsi Decl. Ex. D.)  On May 28, Metaview LP met and elected T&T Equities, Inc., a California corporation, as the new general partner.  (Crosby Decl. ¶¶ 10, 15.)  Afterwards, Metaview LP elected to dissolve. (Crosby Decl. ¶¶ 12, 17.)  After those two votes, Plaintiffs’ counsel conveyed the Form LP-2 to Defendants’ counsel, and demanded that Defendants sign over the position of general partner position to T&T Equities. (Dorsi. Decl. ¶ 9.)  Plaintiffs want the Form LP-2 signed so that the new general partner can sell three properties currently owned by Metaview LP. (Crosby Decl. ¶¶ 22-23.)

 

Although Defendants sought a temporary restraining order and a preliminary injunction on the ground, among others, that any delay in the sale of the properties would be detrimental.  Now Defendants are opposing an action which would facilitate those sales.

 

Plaintiffs argue that pursuant to Corp. Code § 15902.02(b)(1) and (2), Metaview LP must promptly deliver to the Secretary of State for filing an amendment to its certificate of limited partnership because of the admission of a new general and the dissociation of a person as general partner.  Plaintiffs also argue that Metaview LP may amend its certificate of limited partnership to state that it is dissolved and wrapping up its affairs, pursuant to Corp. Code § 15908.03(b)(1). Plaintiffs argue that because Defendants have failed to file the Form LP-2, the court should either compel Defendants to sign it or order the Secretary of State to sign it.

 

Defendants assert that the general partner was wrongfully dissociated because Section 10.3 of the Partnership Agreement does not authorize Plaintiffs’ votes.  Defendants argue that Plaintiffs removed the general partner without the consent of the nondefaulting members and elected a new general partner unaffiliated with the present general partner.  (Houghton Decl. Ex. A Section 10.3(1).)  Defendants also argue that dissolution is not allowed because Defendants assert that the general partner was not in default.  (Houghton Decl. Ex. A Section 10.3(2).)  Defendants also argue that this matter should have gone to arbitration because there is a dispute about whether or not the general partner is in default. (Houghton Decl. Ex. A Section 12.2.)

 

Plaintiffs correctly assert that Defendants waived their right to arbitrate by participating in this litigation: seeking a temporary restraining order and a preliminary injunction and filing a motion for a receiver.

 

Plaintiffs also argue that the Partnership Agreement is uncertain as to the remedies of limited partners when there are no “nondefaulting members”, and that therefore the language should be interpreted most strongly against Defendants because they caused the uncertainty to exist.  Plaintiffs also respond that the Partnership Agreement provides for Metaview LLC to permit a new general partner.

 

“Except as otherwise provided in subdivision (b), the partnership agreement governs relations among the partners and between the partners and the partnership.” (Corp. Code, § 15901.10(a).)

 

“If a person required by this chapter to sign a record or deliver a record to the Secretary of State for filing does not do so, any other person that is aggrieved may petition the superior court to order: (1) the person to sign the record; […] or (3) the Secretary of State to file the record unsigned.” (Corp. Code, § 15902.05(a)(1), (3).) “A limited partnership shall promptly deliver to the Secretary of State for filing an amendment to a certificate of limited partnership to reflect: […] (2) the dissociation of a person as a general partner.” (Corp. Code, § 15902.02(b)(2).)

 

There has been a dissociation of the general partner. The motion is granted. Metaview LLC is ordered to sign the amended certificate within seven days. If it fails to do so, the Secretary of State may file the amended certificate unsigned.