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JaW OFFICES
QT(: 1- 11_ 1" 1', PITRF_
C: CARTIIY, LLP
COTCHETT, PITRE & McCARTHY, LLP
PHILIP -L. GREGORY - #95217
CAMILO ARTIGA-PURCELL - #273229
San Francisco Airport Office Center
840 Malcolm Road, Suite 200
Burlingame, CA 94010
Telephone- ( 650) 697- 6000
Facsimile: ( 650) 697- 0577
Email: pgregory@cpmlegal.com
cartigapurcell@cpmlegal. com
Attorneysfor Plaintiff
FILED
SAN MATEO COUNTY
SEP 1 Q 2014
art the w
SIO
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
INTHE COUNTY OF SAN MATEO
VULCAN WARBIRDS INC., a Delaware
corporation
Plaintiff,
V.
THE COLLINGS FOUNDATION, a non-
profit foundation; AUCTIONS AMERICA
BY RM, INC., an Indiana corporation;
RM AUCTIONS, INC., a Delaware
corporation; MILITARY VEHICLE
TECHNOLOGY FOUNDATION, a
California corporation; and DOES 1- 50,
Defendants.
COMPLAINT
Case No.
CW 5 3 o 3 7 4
COMPLAINT FOR:
1) BREACH OF CONTRACT;
2) REPLEVIN;
3) CLAIMAND DELIVERY;
4) DECLARATORY RELIEF AND
SPECIFIC PERFORMANCE; AND
5) VIOLATION OF CALIFORNIA
COMMERCIAL CODE
SECTION 2403( 2)
DEMAND FOR JURY TRIAL
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TABLE OF CONTENTS
I. INTRODUCTION.......................................................................................................................
1
II. PARTIES.....................................................................................................................................
2
A. PLAINTIFF................................................................................................................ 2
B. DEFENDANTS..........................................................................................................
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III. JURISDICTION AND VENUE...............................................................................................
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IV. FACTS.......................................................................................................................................
4
A.
BACKGROUND ON WARBIRDS AND THE FLYING HERITAGE
COLLECTION..........................................................................................................
4
B. BACKGROUND ON THE LITTLEFIELD COLLECTION............................... 4
C. BACKGROUND ON THE COLLINGS FOUNDATION..................................... 5
D.
BACKGROUND ON THE PANZER IV TANK ....................................................
E. THE AUCTION.........................................................................................................
F. THE CONTRACT TO PURCHASE THE PANZER IV TANK .......................... 6
G. FAILURE TO DELIVER THE PANZER IV TANK............................................. 8
H.
AUGUST 20, 2014 TELEPHONE CONVERSATION WITH ROB
COLLINGS................................................................................................................
8
I.
THE COLLINGS FOUNDATION REFUSES TO RELEASE THE PANZER
IVTANK.....................................................................................................................
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J. PANZER IV TANKS ARE EXTREMELY RARE................................................
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V. CAUSES OF ACTION............................................................................................................
10
FIRST CAUSE OF ACTION
Breach of Contract
Against All Defendants).................................................................................................................
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SECOND CAUSE OF ACTION
Replevin
Against All Defendants).................................................................................................................
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COMPLAINT
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THIRD CAUSE OF ACTION
Claim and Delivery
Against All Defendants)................................................................................................................. 12
FOURTH CAUSE OF ACTION
Declaratory Relief and Specific Performance
Against All Defendants)................................................................................................................. 13
FIFTH CAUSE OF ACTION
Violation of California Commercial Code Section 2403
Against All Defendants)................................................................................................................. 13
PRAYER FOR RELIEF.................................................................................................................. 14
DEMAND FOR JURY TRIAL....................................................................................................... 15
COMPLAINT
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Plaintiff VULCAN WARBIRDS INC. (" Warbirds" or " Plaintiff'),
by and through its
attorneys, Cotchett, Pitre &
McCarthy, LLC, complains and alleges against Defendants, and each
of them, as follows:
I. INTRODUCTION
1. This case arises out of the failure of Defendants to deliver to Warbirds an authentic,
I World War II German Panzer IV Tank
2.
Warbirds is a company that acquires rare military vehicles and planes and leases
them to the Flying Heritage Collection, a museum located in Everett, WA In order to give the
public an opportunity to see these military artifacts, the Flying Heritage Collection recently opened
a 26, 000 square foot " tank arena" at Paine Field in Everett, WA. Various World War II tanks form
the centerpiece of the collection that utilizes the tank arena.
3.
Warbirds has been seeking to find a Panzer IV Tank for over five years Panzer IV
Tanks are extremely rare and seldom are available for sale. Once acquired, the Panzer IV Tank will
be on display in the tank arena at the museum. In July of this year, Warbirds thought it had found
the perfect Panzer IV tank, one that had been part of the famous Littlefield Collection of tanks in
Portola Valley, CA
4.
On July 18, 2014, Defendants offered Warbirds the opportunity to purchase this
Panzer IV Tank for $2, 500, 000 On July 24, 2014, Warbirds responded, accepting the " offer for the
price listed",
executing the form bill of sale provided by Defendants, and agreeing to " wire the
funds for all items in accordance with the wire instructions provided." The funds were wired to
Defendants the very next day.
5.
Yet when Warbirds went to pick up the Panzer IV Tank, Defendants refused to turn
over possession. The Panzer IV Tank remains at the Littlefield Collection in Portola Valley, CA
6. Warbirds was forced to file this action because Defendants have breached their
contract with Warbirds and have denied Warbirds the Panzer IV Tank that Warbirds acquired. No
Panzer IV Tank in decent shape has sold for many years It probably will be several more years
before a Panzer IV Tank in a condition such as the one Warbirds bought will be available for sale
COMPLAINT 1
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7. Defendants should be ordered to release the Panzer IV Tank to Warbirds so this rare
military gem can be displayed to allow the public to share a crucial part of our Nation' s history
I II. PARTIES
A. PLAINTIFF
8 Plaintiff Vulcan Warbirds Inc. ("Warbirds") is a Delaware corporation that owns
the military vehicles and planes, which are then leased to and exhibited as part of the Flying
Heritage Collection The Flying Heritage Collection is located in a museum in Everett, WA.
B. DEFENDANTS
9 Defendant The Collings Foundation is a non-profit foundation with its principal
place of business located in Stow, MA. Warbirds is informed and believes that it is the Collings
Foundation that owns the Panzer IV Tank and refuses to release the Panzer IV Tank to Warbirds
10. Defendant RM Auctions, Inc. is a Delaware corporation, with its principal place of
business in Blenheim, Ontario, Canada. RM Auctions is in the business of motor vehicle auctions
11.
Defendant Auctions America By RM, Inc. is an Indiana corporation, a subsidiary
of RM Auctions, Inc, and has its principal place of business located in Auburn, Indiana Auctions
America hosts motor vehicle auctions throughout the country
12.
Defendant The Military Vehicle Technology Foundation is a California
corporation with its principal place of business located in 499 Old Spanish Trail Road, Portola
Valley, CA. The Military Vehicle Technology Foundation controls the Littlefield Collection
Assembled by Jacques Littlefield, the Littlefield Collection was one of the largest private
collections of armored military vehicles in the world, with over 150 vehicles. The reason the
Military Vehicle Technology Foundation is named in this action is that the Panzer IV Tank is
located at its place of business, 499 Old Spanish Trail Road, Portola Valley, CA
13.
The true names and capacities of the defendants named herein as Does 1 through 50, I
I inclusive, whether individual, corporate, associate, or otherwise, are unknown to Plaintiff who
therefore sues such defendants
by
fictitious names under California Code of Civil Procedure 474
Plaintiff is informed and believes that Doe Defendants are California residents, or individuals over
COMPLAINT 2
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whom this Court nevertheless has jurisdiction. Plaintiff will amend this Complaint to show such
true names and capacities when they are determined
14. Plaintiff is also informed and believes, and based on such information and belief,
alleges that defendants sued as Does 1 through 50, and each of them, are liable in whole or part for
the wrongful acts alleged herein.
15.
At all times relevant to this Complaint, Defendants, and each of them, were acting as
the agents, employees, and/ or representatives of each other, and were acting within the course and
scope of their agency and employment with the full knowledge, consent, permission, authorization,
and ratification, either express or implied, of each of the other Defendants in performing the acts
alleged in this Complaint.
16.
Each Defendant acted both individually and in alignment with the other Defendants
with full knowledge of their respective wrongful conduct As such, Defendants conspired together,
building upon each other' s wrongdoing, in order to accomplish the acts outlined in this Complaint.
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Defendants are individually sued as principals, participants, aiders and abettors, and
co- conspirators in the wrongful conduct complained of and the liability of each arises from the fact
that each has engaged in all or part of the improper acts or transactions complained of herein.
II. JURISDICTION AND VENUE
18. This Court has subject matter jurisdiction over this dispute because Plaintiff alleges
breach of contract claim under California law, and a cause of action for Claim and Delivery under
California law, including Civil Code Section 3379 and Sections 511. 010- 516. 050 of the Code of
Civil Procedure. Further, the amount in controversy exceeds the jurisdictional minimum of this
Court. Finally, at all times herein, one or more Defendants were residents of, or were doing
business in, the State of California, County of San Mateo.
19. Venue in this Court is proper pursuant to sections 395 and 395. 5 of the Code of Civil
Procedure in that at all relevant times herein, one or more Defendants conducted substantial
business in the County of San Mateo and contracted to perform the obligation in the County of San
Mateo
COMPLAINT 3
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IV. FACTS
A. BACKGROUND ON WARBIRDS AND THE FLYING HERITAGE
COLLECTION
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Warbirds owns various rare military vehicles and planes, which are then leased to
and exhibited as part of the Flying Heritage Collection. The Flying Heritage Collection is a
museum located at Paine Field in Everett, WA. The Flying Heritage Collection is the atypical
musewn in that, rather than have only static displays, it restores planes to actually fly and military
vehicles to actually run
21.
Friends of Flying Heritage, a Washington non-profit corporation and private
foundation, operates the museum and coordinates tours of the collection to make these valuable
military artifacts available to the public
22
The beneficial owner and founder of the Flying Heritage Collection is Paul Allen
Mr Allen' s passion for aviation and military history and his awareness of the increasing rarity of
original military aircraft and vehicles motivated him to restore these artifacts to the highest standard
of authenticity and share them with the public.
23.
The Flying Heritage Collection recently opened a 26, 000 square foot " tank arena" as
part of its museum. Various World War II tanks form the centerpiece of the collection that utilizes
the tank arena.
24
On behalf of the Flying Heritage Collection, Warbirds has been seeking to find a
Panzer IV Tank for over five years. Panzer IV Tanks are extremely rare and rarely are available for
sale. Once acquired, the Panzer IV Tank will be on display at the museum.
B.
BACKGROUND ON THE LITTLEFIELD COLLECTION
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Assembled by Jacques Littlefield, the Littlefield Collection was one of the largest
private collections of armored military vehicles in the world, with over 150 vehicles. The
Littlefield Collection was located in Portola Valley, CA
26.
Plaintiff is informed and believes that Mr. Littlefield set up the Military Vehicle
Technology Foundation to control his collection. A true and correct copy of the pages from the
web site of the Military Vehicle Technology Foundation are attached hereto as Exhibit I
COMPLAINT V
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C. BACKGROUND ON THE COLLINGS FOUNDATION
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After Jacques Littlefield died, ownership of the Littlefield Collection was transferred
to the Collings Foundation.
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Located in Stow, MA, the Collings Foundation has a similar mission to Warbirds in
supporting living history exhibits, especially from World War II. Historically, the Collings
Foundation has focused on military aviation, including a " Wings of Freedom Tour" of World War
II aircraft
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The Collings Foundation' s facilities in Stow, MA include an aviation museum and a
vintage automobile and racecar collection.
D.
BACKGROUND ON THE PANZER IV TANK
30.
In 2014, a portion of the Littlefield Collection of military vehicles was put up for
sale at auction (the " Littlefield Auction").
The Littlefield Auction was to take place on July 11 and
12, 2014 in Portola Valley, CA Auctions America was conducting the Littlefield Auction. A true
and correct copy of the listing from the Auctions America web site is attached hereto as Exhibit 2.
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One of the items to be auctioned off was a Panzer IV Tank, with a published
estimate of $2. 4 to $2 6 million. The complete name of the Panzer IV Tank is the
Panzerkampfwagen IV Ausf H (Sd Kfz. 161/ 2) ( hereinafter the " Panzer IV Tank") A true and
correct copy of the listing for the Panzer IV Tank from the Auctions America web site is attached
hereto as Exhibit 3.
32
The Panzer IV Tank was originally made in Germany during World War II Panzer
IV tanks were the work horse of the German Army during World War II, seeing service in all
theaters from 1939 through 1945
Panzer IV tanks were the backbone of the German panzer forces
from the Biltzkrieg to Berlin Panzer tank design was upgraded continually during the war and, by
the latter half of World War II, German tank divisions were supposed to have about an equal
number of Panzer IVs and Panthers
33.
This particular Panzer IV Tank was built in 1944 and is complete except for some
hatches and small fittings This Panzer IV Tank was used by the Czechs and then the Syrians after
World War II. The Syrians used this Panzer IV Tank through the Six Days War and it was captured)
COMPLAINT I
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by the Israelis. This specific tank has some post -WWII modifications ( e. g., the commander' s
cupola has been modified to fit a large modern machine gun). This Panzer IV Tank does not run.
34. The Panzer IV Tank is iconic. There are about 38 complete Panzer IV Tanks of all
models currently in existence. Plaintiff is informed and believes that this Panzer IV Tank is one of
five Panzer IV tanks in the United States.
E. THE AUCTION
35
On July 11 and 12, 2014, Deborah Gunn participated via phone for the Littlefield
Auction, bidding on behalf of Warbirds.
36
All of Warbirds' bidding at the Littlefield Auction was conducted through Megan
Boyd, of RM, Inc Defendant RM, Inc is affiliated with Defendant Auctions America.
37
During the course of the Littlefield Auction, Ms Gunn, on behalf of Warbirds, bid
on multiple items She bid through speaking with Ms. Boyd on the phone
38.
On July 12, 2014, when the Panzer IV Tank came up for bid towards the end of the
Littlefield Auction, Ms. Gunn placed the initial bid of $1, 500, 000 for the Panzer IV Tank. On the
phone, Ms. Gunn heard there was a second bid of $1, 750, 000. She did not place any additional bids
on the Panzer IV Tank. The auctioneer then announced that the lot (meaning the Panzer IV Tank)
did not sell
F. THE CONTRACT TO PURCHASE THE PANZER IV TANK
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Shortly after the Littlefield Auction, Ms Gunn on behalf of Warbirds approached
Megan Boyd to see if the consignor, the Collings Foundation, wanted to sell the Panzer IV Tank.
40.
On July 15, 2014, acting on behalf of the Collings Foundation, Ms Boyd sent Ms
Gunn an email
stating: "
offers above $2, 250, 000 ( not inclusive of the buyer' s premium) will be
considered
by
Rob [ Collings] and the trustees [ of the Collings Foundation] on the Panzer " Rob
Collings is the CEO or Executive Director of the Collings Foundation. A true and correct copy of
this July 15, 2014 email is attached hereto as Exhibit 4
41.
In auctions, the buyer' s premium is a percentage additional charge on the winning
bid of an item at the auction that must be paid by the successful bidder to the auctioneer It is
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charged by the auctioneer to cover administrative expenses, is paid by the successful bidder directly
to the auction house, and is, in essence, a commission
42.
At the same time as the July 15, 2014 email, the Auctions America web site listed
the Panzer IV Tank as being for sale.
43.
After various discussions, on July 18, 2014, acting on behalf of the Collings
Foundation, Ms. Boyd sent Ms. Gunn an email offering the Panzer IV Tank to Warbirds for
2, 500, 000 In a subsequent phone conversation, Ms. Boyd told Ms. Guam that the $2, 500, 000
figure was " all -in":
this meant that the auction house would waive the transport costs and buyer' s
premium for Warbirds on this transaction and would instead take a commission of $100, 000 with
the Collings Foundation to receive a net of $2, 400, 000.
44
On July 24, 2014, acting on behalf of Warbirds, Ms. Gunn responded, accepting the
offer for the price listed" and agreed to " wire the funds for all items in accordance with the wire
instructions provided "
As requested in Ms. Boyd' s July 18 email, Ms. Gunn also attached a copy
of the signed Bill of Sale. A true and correct copy of the respective emails and attachments is
attached hereto as Exhibit 5.
45.
One of the email attachments is a " Recap" prepared by Auctions America for the
items "'purchased" by Warbirds both during and after the Littlefield Auction. Note the Panzer IV
Tank is listed as Lot No 5004 for $2, 500, 000
46
One of the items also listed on that " Recap" attachment is a " 17 -Pounder Anti -Tank
Gun."
After the Littlefield Auction Ms. Gunn had discussions with Megan Boyd about acquiring
that Anti -Tank Gun because it had not been sold at the Littlefield Auction. Ms Gunn, acting on
behalf of Warbirds, and Ms. Boyd, acting on behalf of the Collings Foundation, reached agreement
that Warbirds would pay $45, 000 for the Anti -Tank Gun, along with appropriate add- on charges
47
On July 25, 20145 the day after Ms Gunn accepted the offer for the Panzer IV Tank,
Warbirds caused to be wired $4, 236, 143 85 to the bank account for Auctions America, the amount
for each of the purchases at the Littlefield Auction, along with the funds for the Panzer IV Tank and
the Anti -Tank Gun A true and correct copy of Warbirds' July 25, 2014 confirmation email and the
wire transfer payment details report is attached hereto as Exhibit 6.
COMPLAINT 7
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48 Warbirds is informed and believes that all of the funds wired ($4, 236, 143. 85) remain',
in the possession of either Auctions America, RM Auctions, Inc., or the Collings Foundation None
of the funds have been returned to Warbirds.
G. FAILURE TO DELIVER THE PANZER IV TANK
49 After the Julv 25 wire transfer, Warbirds communicated with RM Auctions, Inc and
Auctions America in order to obtain the information about picking up the various items purchased,
including the Panzer IV Tank. Warbirds was informed that the items would be moved from Portola
Valley, CA, where the Littlefield Collection was located, to a marshalling yard in Union City, CA
H. AUGUST 20, 2014 TELEPHONE CONVERSATION WITH ROB
COLLINGS
50. In mid-August 2014, representatives of Warbirds learned the Panzer IV Tank was
not going to be delivered to the marshalling yard.
51.
On August 20. 2014, Adrian Hunt, Executive Director of the Flying Heritage
Collection, spoke with Rob Collings, the CEO and Executive Director of the Collings Foundation,
about the purchase by Warbirds of the Panzer IV Tank Rob Collings said the Collings Foundation
would honor the price paid by Warbirds if the Collings Foundation found a replacement tank. Rob
Collings said that it could take a while (he mentioned a month or so) to get an answer on a
replacement.
52.
Mr Hunt replied that Auctions America, acting on behalf of the Collings
Foundation, had made Warbirds an offer, had received the funds for the Panzer IV Tank, and '`the
check had been cashed."
Mr Hunt also stated that, again acting on behalf of the Collings
Foundation, Auctions America had made legal representations about the sale of the Panzer IV Tank
53 In that phone conversation, Adrian Hunt requested release of the Panzer IV Tank and
Rob Collings refused to release the Panzer IV Tank for delivery
I.
THE COLLINGS FOUNDATION REFUSES TO RELEASE THE PANZER
IV TANK
54 After the August 20, 2014 conversation between Adrian Hunt and Rob Collings, Ms
Gunn immediately emailed Ed Cepuran of Auctions America to try to determine the status of the
COMPLAINT 8
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Panzer IV Tank A true and correct copy of Ms. Gunn' s August 20, 2014 email is attached hereto
as Exhibit 7.
55.
In response to Ms. Gunn' s email, Ed Cepuran phoned her In that phone call, Mr.
Cepuran stated there were issues about Rob Collings trying to find a replacement Panzer IV Tank
for the Collings Foundation and that the Panzer IV Tank purchased by Warbirds could not be
released until Rob Collings had found this replacement tank. At no point did Mr. Cepuran ever say
that Auctions America did not have authority to sell the Panzer IV Tank to Warbirds.
56. On August 21, 2014, Ms. Gunn received an email from Ed Cepuran
stating: "
The
number of 2 5M is acceptable to the Collings Foundation."
Rob Collings of the Collings
Foundation is copied on this email A true and correct copy of the August 21, 2014 email is
attached hereto as Exhibit 8.
57.
However, later on August 22, 2014, Warbirds learned that the marshalling yard was
not authorized to release the Panzer IV Tank That same day Ms. Gunn sent an email to Ed
Cepuran of Auctions America requesting that he " immediately provide the necessary release
required for our shipper to pick-
up
of (sic) the Panzer "
A true and correct copy of Ms. Gunn' s
August 22, 2014 email is attached hereto as Exhibit 9.
58
On August 25, 2014, Ms. Gunn spoke on the phone with Ed Cepuran of Auctions
America, who told her that he would give the marshalling yard the " go- ahead" to release the Panzer
IV Tank that day to Warbirds
59
Unfortunately, the marshalling yard did not have the Panzer IV Tank to release. The
Panzer IV Tank remains where it was originally housed- with the Littlefield Collection in Portola
Valley, CA
60
While Warbirds has paid $2, 500, 000 for the Panzer IV Tank, Defendants refuse to
release the tank to Warbirds
J. PANZER IV TANKS ARE EXTREMELY RARE
61.
For over five years, Warbirds has been conducting a world-wide search for a Panzer
IV tank in appropriate condition for its military vehicles collection. Warbirds has yet to find such a
tank. Panzer IV tanks are extraordinarily rare and seldom are available for sale.
COMPLAINT 2
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62.
The Panzer tanks that have been available for purchase are in extremely rough
ondition, without engines or internal components. Many of these rough tanks are now located in
Eastern Europe ( e g., Bulgaria) and are very expensive to ship
63 The Panzer IV Tank that Warbirds acquired from Defendants as part of the
Littlefield Collection is an unusual opportunity. No Panzer IV Tank in decent shape has sold for
many years. It probably will be several more years before a Panzer IV Tank in a condition such as
the one Warbirds bought will be available for sale.
64
Based on the inconsistent positions taken by Auctions America, RM Auctions, Inc,
and the Collings Foundation, Warbirds is extremely concerned that the Panzer IV Tank will be
moved out of California If the Panzer IV Tank is moved, it is extremely unlikely that Warbirds
would be able to locate a replacement. No Panzer IV Tank in decent shape is currently on the
market. Unless this Court makes sure the Panzer IV Tank is properly retained in California, the
Panzer IV Tank easily could be made unavailable by simply transporting it to the Collings
Foundation' s site in Stow, MA.
CAUSES OF ACTION
FIRST CAUSE OF ACTION
Breach of Contract
Against All Defendants)
65.
Plaintiff hereby realleges and incorporates herein by reference each and every
allegation in the paragraphs above as though fully set forth herein
66.
An agreement to purchase the Panzer IV Tank was formed when, on July 18, 2014,
Defendants offered Warbirds the opportunity to purchase this Panzer IV Tank for $2, 500, 000, and
n July 24, 2014, Warbirds responded, accepting the " offer for the price listed" and agreed to " wire
he funds for all items in accordance with the wire instructions provided," and $2, 500, 000 was
wired to Defendants the next day ( the " Tank Purchase Agreement")
67.
The Tank Purchase Agreement is a valid and binding contract.
68
Plaintiff has performed all conditions, covenants, and promises required on its part
e performed in accordance with the terms and conditions of the Tank Purchase Agreement.
COMPLAINT 10
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69.
As set forth above, by improperly failing to deliver the Panzer IV Tank, Defendants
have unjustifiably and inexcusably breached their obligations under the Tank Purchase Agreement.
70 As a proximate result of Defendants' breach of the Tank Purchase Agreement,
Plaintiff has suffered, and will continue to suffer, general and special damages in an amount to be
proven at trial. Plaintiff seeks compensation for all damages and losses proximately caused by
Defendants' breach
71
Plaintiff has no adequate remedy at law for the injuries currently being suffered or
the additional injuries that are threatened, because it would be difficult to quantify in dollars the
loss sustained pending final adjudication of this matter.
72 Plaintiff is further entitled to injunctive relief to enjoin Defendants, and each of
them, from continuing to refuse to deliver the Panzer IV Tank and retaining and using the Panzer
IV Tank.
WHEREFORE, Plaintiff prays for relief as set forth below
SECOND CAUSE OF ACTION
Replevin
Against All Defendants)
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Plaintiff hereby realleges and incorporates herein by reference each and every
allegation in the paragraphs above as though fully set forth herein.
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By virtue of the Tank Purchase Agreement, Plaintiff owns the Panzer IV Tank.
75. Plaintiff has demanded that Defendants release the Panzer IV Tank to Plaintiff.
Defendants have refused to release the Panzer IV Tank to Plaintiff.
76. To the best of Plaintiffs knowledge, the Panzer IV Tank is located at the site of the
Littlefield Collection, Portola Valley, CA
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The Panzer IV Tank is being improperly held by Defendants and one or more of
Defendants may transfer, conceal, or otherwise hide the Panzer IV Tank
WHEREFORE, Plaintiff prays for relief as set forth below
COMPLAINT 11
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LAV(/ OFFICES
COTCIJETT, PITRE
MCCARTHY, LLP
THIRD CAUSE OF ACTION
Claim and Delivery
Against All Defendants)
78.
Plaintiff hereby realleges and incorporates herein by reference each and every
allegation in the paragraphs above as though fully set forth herein.
79. Plaintiff is, and at all times herein mentioned was, the owner of the Panzer IV Tank
in Defendants' possession, and is thus entitled to the immediate and exclusive possession of the
Panzer IV Tank.
80. Pursuant to the Tank Purchase Agreement, Defendants were obligated to deliver the
I Panzer IV Tank to Plaintiff.
81
Notwithstanding their obligation, Defendants have failed and refuse to deliver the
Panzer IV Tank, thereby interfering with Plaintiffs right of possession, the value of which will be
proven at trial.
82
On August 20, 2014, and on several dates thereafter, Plaintiff demanded that
Defendants deliver the Panzer IV Tank Defendants have refused to deliver the Panzer IV Tank
after Plaintiff s demand, and thus Defendants continue to withhold possession of the Panzer IV
Tank from Plaintiff in violation of Plaintiffs right to immediate and exclusive possession of its
property.
83
During, and as a proximate result of, Defendants' wrongful possession and detention
of the Panzer IV Tank described above, Plaintiff has suffered damages according to proof
84.
In taking, wrongfully possessing, and detaining the Panzer IV Tank as described
above, Defendants' conduct was willfully and maliciously intended to inure Plaintiff, and to further
their own self-interest with conscious disregard for the rights of Plaintiff. Plaintiff is therefore
entitled to an award of exemplary and punitive damages
WHEREFORE, Plaintiff prays for relief as set forth below
COMPLAINT 12
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LAW OFFICES
COTCI-I=, PITRI;
McCt RTi iY, LL13
FOURTH CAUSE OF ACTION
Declaratory Relief and Specific Performance
Against All Defendants)
85.
Plaintiff hereby realleges and incorporates herein by reference each and every
allegation in the paragraphs above as though fully set forth herein.
86.
An actual controversy has arisen and now exists between Plaintiff and Defendants
concerning: ( a) the validity and binding nature of the Tank Purchase Agreement; and ( b) delivery of
the Panzer IV Tank pursuant to the Tank Purchase Agreement. See Code. Civ. Proc. 1060 ("
Any
person interested under a written instrument, ... or under a contract, or who desires a declaration of
his or her rights nor duties with respect to another, ...
may, in cases of actual controversy relating to
the legal rights and duties of the respective parties,
bring
an original action ... in the superior court
for a declaration of his or her rights and duties in the premises, including a determination of any
question of construction or validity arising under the instrument or contract")
87
Ajudicial declaration is necessary and appropriate at this time declaring that, by
offering the Panzer IV Tank to Plaintiff on specific terms, and by Plaintiff's acceptance and full
performance of those specific terms, the Tank Purchase Agreement is a valid and binding obligation
of Defendants, and each of them, such that Defendants are required to deliver the Panzer IV Tank to
Plaintiff.
88.
Further, and in the alternative, a judicial declaration is necessary and appropriate at
this time determining the parameters of the Tank Purchase Agreement, including, but not limited to,
a declaration that the Tank Purchase Agreement created an obligation that Defendants, and each of
them, are required to deliver the Panzer IV Tank to Plaintiff
WHEREFORE, Plaintiff prays for relief as set forth below.
FIFTH CAUSE OF ACTION
Violation of California Commercial Code Section 2403
Against All Defendants)
89.
Plaintiff hereby realleges and incorporates herein by reference each and every
allegation in the paragraphs above as though fully set forth herein.
COMPLAINT 13
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LAWOFFICES
COTCHR71', PITRE
MCCARTI-IY, LLP
90.
Because the Collings Foundation entrusted possession of goods, including but not
limited to the Panzer IV Tank, to Auctions America and RM Auctions, Inc., as merchants who deal
in goods of that kind, the Collings Foundation gave Auctions America the power to transfer all
rights of the Collings Foundation, as the entruster, to Plaintiff, as a buyer in the ordinary course of
business.
91.
Plaintiff, as a buyer in the ordinary course of business, acquired all of Defendants'
title to the Panzer IV Tank under California Commercial Code Section 2403.
92.
During, and as a proximate result of, Defendants' wrongful possession and detention
of the Panzer IV Tank described above, Plaintiff has suffered damages according to proof.
WHEREFORE, Plaintiff prays for relief as set forth below.
PRAYER FOR RELIEF
Plaintiff prays for relief as follows.
1.
For general damages in an amount according to proof;
2.
For compensatory damages in an amount according to proof;
3. For a writ of possession for the Panzer IV Tank;
4. For injunctive relief;
5.
For exemplary and punitive damages against each of the Defendants;
6. For reasonable attorneys' fees and costs, and
7.
For such other and further relief as the Court may deemjust and proper.
Dated: September 9, 2014
COMPLAINT
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By:
PHILI . GR
Attorneysfor Pl
McCARTHY, LLP
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LAW OFFICES
COTCHE' IT, PYRE
McQurn-IY, LLP
DEMAND FOR JURY TRIAL
Plaintiff hereby demands a trial by jury of all issues so triable.
Dated: September 9, 2014
COMPLAINT
a
rGF
for P
McCARTHY, LLP
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