vulcan warbirds vs. collings foundation

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JaW OFFICESQT(: 1- 11_ 1" 1', PITRF_

C: CARTIIY, LLP

COTCHETT, PITRE & McCARTHY, LLPPHILIP -L. GREGORY - #95217CAMILO ARTIGA-PURCELL - #273229San Francisco Airport Office Center840 Malcolm Road, Suite 200Burlingame, CA 94010Telephone- ( 650) 697-6000Facsimile: ( 650) 697-0577Email: [email protected]

cartigapurcell@cpmlegal. com

Attorneysfor Plaintiff

FILEDSAN MATEO COUNTY

SEP 1 Q 2014art the w

SIO

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

IN THE COUNTY OF SAN MATEO

VULCAN WARBIRDS INC., a Delawarecorporation

Plaintiff,

V.

THE COLLINGS FOUNDATION, a non- profit foundation; AUCTIONS AMERICABY RM, INC., an Indiana corporation; RM AUCTIONS, INC., a Delawarecorporation; MILITARY VEHICLETECHNOLOGY FOUNDATION, aCalifornia corporation; and DOES 1- 50,

Defendants.

COMPLAINT

Case No. CW 5 3 o 3 7 4COMPLAINT FOR:

1) BREACH OF CONTRACT;

2) REPLEVIN;

3) CLAIM AND DELIVERY;

4) DECLARATORY RELIEF ANDSPECIFIC PERFORMANCE; AND

5) VIOLATION OF CALIFORNIACOMMERCIAL CODESECTION 2403(2)

DEMAND FOR JURY TRIAL

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LAW OFFICESCO'I'CH=, PITRE

MCQUrMY, LLP

TABLE OF CONTENTS

I. INTRODUCTION.......................................................................................................................1

II. PARTIES.....................................................................................................................................2

A. PLAINTIFF................................................................................................................ 2

B. DEFENDANTS..........................................................................................................2

III. JURISDICTION AND VENUE...............................................................................................3

IV. FACTS.......................................................................................................................................4

A. BACKGROUND ON WARBIRDS AND THE FLYING HERITAGECOLLECTION..........................................................................................................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 ROBCOLLINGS................................................................................................................8

I. THE COLLINGS FOUNDATION REFUSES TO RELEASE THE PANZERIVTANK.....................................................................................................................8

J. PANZER IV TANKS ARE EXTREMELY RARE................................................9

V. CAUSES OF ACTION............................................................................................................10

FIRST CAUSE OF ACTIONBreach of ContractAgainst All Defendants).................................................................................................................10

SECOND CAUSE OF ACTIONReplevinAgainst All Defendants).................................................................................................................11

COMPLAINT

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THIRD CAUSE OF ACTION

Claim and DeliveryAgainst All Defendants).................................................................................................................12

FOURTH CAUSE OF ACTION

Declaratory Relief and Specific PerformanceAgainst All Defendants).................................................................................................................13

FIFTH CAUSE OF ACTIONViolation of California Commercial Code Section 2403Against All Defendants).................................................................................................................13

PRAYER FOR RELIEF..................................................................................................................14

DEMAND FOR JURY TRIAL.......................................................................................................15

COMPLAINT

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LAW OFFICESCOTCHEIT, PITRE

MCCARI'I IY, LLP

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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LAW OFFICESCOMMETT, PITRE

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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 subsidiaryof RM Auctions, Inc, and has its principal place of business located in Auburn, Indiana Auctions

America hosts motor vehicle auctions throughout the country12. 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, CA13. 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 whotherefore 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.

17 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 SanMateo

COMPLAINT 3

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LAW OFFICESCOTCI-II IT, PYIRI

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IV. FACTS

A. BACKGROUND ON WARBIRDS AND THE FLYING HERITAGECOLLECTION

20 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

25 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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LAW OFFICESCO 1' CI-IM-F, PITRE

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C. BACKGROUND ON THE COLLINGS FOUNDATION

27 After Jacques Littlefield died, ownership of the Littlefield Collection was transferred

to the Collings Foundation.

28 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

29 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 forsale 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.

31 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 alltheaters 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, bythe 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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LAW OFFICESCOTCH1371" PITKL

MCCARTHY, LLP

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

39 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 ofthis 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

COMPLAINT 6

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LAW OFFICESCOTC- ETF, P IRL

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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 -TankGun." 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 charges47 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 ROBCOLLINGS

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 PANZERIV 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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LAW OFFICESCo,rcl lr+"r, ', PITItl;

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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 saythat 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 releaserequired 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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LAW OFFICES

COTCHETC, PITREMCCARTI-IY, LLP

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


73 Plaintiff hereby realleges and incorporates herein by reference each and every

allegation in the paragraphs above as though fully set forth herein.

74 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

77 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


COMPLAINT 11

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THIRD CAUSE OF ACTION

Claim and Delivery




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 ofPlaintiffs 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 proof84. 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


COMPLAINT 12

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LAW OFFICESCOTCI-I=, PITRI;

McCt RTi iY, LL13

FOURTH CAUSE OF ACTION

Declaratory Relief and Specific Performance




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 ofhis 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 A judicial 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




COMPLAINT 13

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LAW OFFICESCOTCHR71', 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 ofbusiness.

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 deem just and proper.

Dated: September 9, 2014

COMPLAINT

oo4By: PHILI . GRAttorneys for• Pl

McCARTHY, LLP

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LAW OFFICESCOTCHE'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

rGFfor P

McCARTHY, LLP

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vulcan warbirds vs. collings foundation

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