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INDEX NO. 652408/2010(FILED: NEW YORK COUNTY CLERK 0172672011)NYSCEF DOC. NO. 30-3 RECEIVED NYSCEF: 01/26/2011 m3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK panne ene nee eee eee eee eee nen YEHUDA KELLER, ALEXANDER TY REL Index No. 652408/10 E ROSEAN, YAACOV LIPSKAR, LECHAIM MERCHANT SERVICES CORP., MERCHANT AFFIRMATION DEVELOPMENT GROUP, ZALMAN BLACHMAN, MOSHE WISNEFSKY, Y EKUSIEL CHANIN, and SHELLIE ZUCKERMAN and SUSAN HILLMAN as TRUSTEES OF THE WOODS EXEMPTION TRUST Plaintiffs, -against MERCHANT CAPITAL PORTFOLIOS, LLC, BUSINESS PAY MENT SYSTEMS, LLC, OLEG FIRER, LEON GOLDSTEIN, ANTHONY W. HOLDER, STAR CAPITAL HOLDING CORP., STAR CAPITAL MANAGEMENT, LLC, STAR CAPITAL JV, LLC, PROCESS PINK PAY MENTS, LLC, MERCHANT PROCESSING SERVICES CORP., UNIFIED PAY CORPORATION, MMOA INC. aka. MONEY MOVERS OF AMERICA, INC., NATIONAL PROCESSING COMPANY, RBL CAPITAL GROUP, LLC, THE COMVEST GROUP, COMVEST INVESTMENT PARTNERS, CY NERGY HOLDINGS LLC, CYNERGY DATA, LLC, CYNERGY PROSPERITY PLUS, LLC, and DOES 1 THROUGH 100, Defendants. panne ene n enn nee eee eee eee een Elie C. Poltorak, an attomey duly admitted to practice in the courts of this state, affirms the following under penalties of perjury: 1 1 am the principal of Poltorak PC, attomeys for Plaintiffs. I make this affirmation in support of Plaintiffs’ Order to Show Cause for sanctions and a temporary restraining order. INTRODUCTION 2. I appeared before Your Honor on January 6 for oral arguments on Plaintiffs’ previous Order to Show Cause (the “First OSC”) seeking a preliminary injunction (i) enjoiningDefendants from conveying, assigning, and/or encumbering any assets acquired by Defendant Merchant Capital Portfolios, LLC (“Merchant”) from Defendant Business Payment Systems, LLC (“BPS”); (ii) enjoining Merchant and related Defendants from soliciting, transfering, or causing to be transferred any merchant account—serviced by Defendant National Processing Corp. (“NPC”) and associated with residual payment entitlements acquired by Merchant from BPS—to any other credit card processor or portfolio; (iii) enjoining NPC from disbursing any residual payments to Defendant RBL Capital Group LLC (“RBL”) or any other Defendant herein, without first deducting the sum of $61,338 from each monthly residual payment and holding same in escrow; (iv) enjoining NPC from disbursing any residual payments to RBL or any other Defendant herein, without first deducting the sum of $561,733.35, such sumrepresenting the amount claimed by Plaintiffs in past due residual payments, and holding same in escrow; (v) granting Plaintiffs expedited discovery against Merchant and associated Defendants;and (vi) granting Plaintiffs such other and further relief as may be just, equitable, and proper. Atrue and accurate copy of the First OSC is annexed hereto as Exhibit “A.” 3, On the retum date, the Court heard extensive oral arguments as to Plaintiff's likelihood of success on the merits. Plaintiffs conclusively refuted each and every one of Defendants’ arguments as to the ultimate merits. Specifically, Plaintiffs demonstrated that (i) the Novation Agreement is ambiguous at best; (ii) the Novation Agreement is superseded by the Assignment Agreement, which by its terms “constitutes the final, complete, and exclusivestatement of the agreement of the Parties with respect to the subject matter hereof, andsupersedes any and all other prior and contemporary agreements and understandings, both written and oral, between the Parties,” and expressly assigns BPS’s agent obligations to Merchant; (iii) as BPS’s assignee, Merchant lacks standing to assert noncompliance with the 47928NPC/RBL Agreements and is, in any event, estopped from making any such arguments as the successor standing in the shoes of BPS (e.g., that Plaintiffs’ assignment agreements required Puior approvals from NPC and RBL) (See, e.g., Unique Laundry Corp. v. Hudson Park NY LLC, 55 A.D.3d 382, 383, 865 N.Y.S.2d 203, 204 (1st Dep't 2008) (holding that the sublessor's assignee could not seek to void a sublease on the grounds that it violated the overlease)); (iv)Plaintiff Keller's assignment predates the RBL agreement; and (v) even if arguendo BPS had purported to transfer its residual income stream free and clear of any obligations to downlines,such transfer would be fraudulent and void as a matter of law, because (a) BPS did not receive adequate consideration for a free and clear assignment (DCL § 272, 275), (b) such assignment rendered BPS insolvent and unable to pay downlines (DCL § 273), and (c) assets cannot be intentionally stripped of their built-in liabilities in order to avoid such liabilities (DCL § 276). 4. At the end of along day of argument, the Court ruled from the bench (i) vacating the previously granted TRO, (ii) denying Plaintiffs a preliminary injunction except as to expedited discovery; (iii) ordering Merchant to fumish Plaintiffs raw “NPC data reports” indicating the residuals on each of the accounts associated with Plaintiffs’ residuals on or beforeJanuary 12, 2010; and (iv) ordering the parties to enter into an expedited discovery schedule. There was some discussion as to confidentiality and initially the Court agreed with counsel forBPS that the parties should all enter into the standard Stipulated Protective Order available on the Commercial Division website. A true and accurate copy of a transcript of the final portion of the hearing, containing the Court’s nulings, is annexed hereto as Exhibit “B.” 5, Subsequently, at the suggestion of an individual affiliated with BPS who was present in the courtroom, it became apparent that the reports do not contain confidential information, as they only identify accounts by a “merchant identification number.” 479286. Counsel for Merchant insisted that he would have to confirm this with his client, in response to which the Court stated that if any issue comes up affecting the disclosure, aconference call should be arranged with the Court on the aftemoon of January 11, so that the reports could be produced by the 12th as ordered. MERCHANT'S DISREGARD FOR THE COURT’S ORDER 7, On the moming of January 11, I emailed Michael Bemstein, counsel to Defendants Oleg Firer, Leon Goldstein, Merchant Capital Portfolios, LLC, Capital Holding Corp., Star Capital Management, LLC, Star Capital JV, LLC, Process Pink Payments, LLC, Merchant Processing Services Corp., Unified Pay Corporation, and MMOA, Inc., d/b/a Money Movers of America (the “Merchant Defendants”), requesting that he confirm that his client would produce the date reports the following day. 8. The purpose of the e-mail was to assure that no issue had arisen requiring a conference call with the Court that day. 9, Mr. Bemstein replied at 5:45 pm that he “will e-mail [me] tomorrow regarding your discovery inquiry.” 10. I further requested that Mr. Bemstein make himself available for a telephone callto confer regarding the expedited discovery schedule the Court had ordered the parties to enter. Mr. Bemstein replied that he would be available on the aftemoon of the 13°. 11. On January 12, at 7:22 pm, I emailed Mr. Bemstein to inquire regarding thereports that were due that day. 12. Mr. Bemstein replied the following aftemoon as follows: With all due respect, the Court did not Order we produce them today. The Court was crystal clear that it was requiringa Confidentiality Order, of which no draft has been circulated or entered. In addition, the Court wanted a conference 4 47928call to discuss the parameters of the disclosure and whether it should be viewed by your Clients or agreed thirc: parties. Having said, that, my Clients are ready willing and able to produce all discovery that can be produced pursuant to the requisite confidentiality safeguards. In addition, it is my understanding that several of the Plaintiffs have made settlement demands directly to my Clients which my Clients are seriously considering and I intend, upon substantiation thereof to forward you a proposed Stipulation of Settlement for these parties which may considerably narrow both the issues before this Court as to both litigation and expedited discovery. I hope that we will, in fact, be able to resolve issues realting [sic] to several of the Plaintiffs and I will email you by tomorow to confirm and/or discuss the parametes [sic] and terms. Atrue and accurate copy of the foregoing e-mail exchange is attached hereto as Exhibit “C.” 13. I then called Mr. Bemstein to demand that the Merchant Defendants comply with the discovery ordered by the Court. 14. Mr. Bemstein replied that I should circulate a confidentiality stipulation and thathis clients would produce the reports the following day. Further, Mr. Bemstein represented that it would be premature to enter a discovery schedule as he would be sending a proposed stipulation settling this matter with some of the Plaintiffs herein. In a subsequent telephone conversation, Mr. Bemstein informed me that his clients had decided to accept the settlementdemands of all but one of the Plaintiffs and that he would send me a stipulation to that effect in short order. 15. That very night, my paralegal circulated the standard stipulated protective order available on the Commercial Division website to all counsel of record herein. A copy of such e- mail and proposed order is attached hereto as Exhibit “D.” 16. The sole response I received to said e-mail was a letter from Mr. Bemstein, datedJanuary 19, in which he demands changes to the stipulated protective order and “written 47928discovery demands,” to which Defendants “have the right to object.” A copy of said letter isannexed hereto as Exhibit “E.” 17. Also on January 19, Mr. Bemstein submitted a proposed order to the Court. A copy of said proposed order, along with Mr. Bemstein’s cover letter, is annexed hereto as Exhibit “F.” 18. On January 20, I submitted a letter to the Court setting recounting Mr. Bemstein’sfailure to comply with the Court’s order, as set forth above. A copy of the letter is annexed hereto as Exhibit “G.” 19. Mr. Bemstein replied with a letter to the Court completely ignoring the Court’s order that his client produce the data reports, and justifying his obstructionist conducts with the assertion that “Plaintiffs' cannot circumvent the CPLR.” A true and accurate copy of said letter is annexed hereto as Exhibit “H.” 20. On January 21, the Court held a conference call with Mr. Bemstein and meregarding the issues addressed in our respective letters. 21. Tn the course of said conference call, Mr. Bemstein represented to the Court thathis clients were prepared to produce the data reports immediately upon execution of the confidentially order. The court directed Mr. Bemstein to execute the standard Commercial Division confidentiality orderI had circulated the previous week so as to cover the initial court- ordered production of data reports, without prejudice to his right to seek modifications with respect to future discovery. 22. At Mr. Bemstein’s request, the Court instructed that I reduce to writing the scopeof the data reports sought by Plaintiffs, which the Court had ordered produced by January 12. 23. The Court further instructed that counsel appear for a conference this coming 47928Wednesday, January 26—a date chosen due to the fact that Mr. Bemstein is on vacation Mondayand Tuesday. The Court did not set a time for the hearing pending Mr. Bemstein’s travel arrangements. As the conference call was ending, I asked the Court to confirm that Wednesday’ s hearing was definitely scheduled and the Court did so. 24. Immediately following the conference call, I called Mr. Bemstein and discussed the contents of the written request so as to avoid needless back-and-forth, and I immediatelyfollowed up with a letter setting forth such requests. A true and accurate copy of said letter isannexed hereto as Exhibit “I.” 25. Nevertheless, I only received the stipulated confidentiality order with signatures by Mr. Bemstein, Scott Silberfein, Esq. (counsel to RBL Capital Group, LLC), and Ed Floyd, Esq. (counsel to Defendant National Processing Company) on January 25. (Daniel Faizakoff, Esq,, had previously executed the stipulation on behalf of Defendant Business Payment Systems, LLC.) 26. At the present time, notwithstanding the Court's order on J anuary 6 that the data reports be produced on or before January 12 and notwithstanding the Court’s directive during last week’s conference call that the long-overdue reports be produced immediately, the Merchant Defendants have failed to produce any data reports. 27. Furthermore, the Merchant Defendants have simply ignored the Court’s order thatthe parties enter into an expedited discovery schedule, despite several requests by me that we confer regarding same. 28. The Merchant Defendant's flagrant disregard for discovery orders, while leading Plaintiffs down the primrose path with settlements that failed to materialize, has made a mockery of this Court. Furthermore, Plaintiffs have been severely prejudiced by Merchant's conduct, as 47928the Court specifically scheduled the deadline for producing the reports so as to allow Plaintiffstwo days to bring a new Order to Show Cause to enjoin disbursem*nt of the residual funds to Merchant (Hearing Excerpt Transcript at 15, line 13)—funds Plaintiffs are entitled to and Merchant has now presumably pocketed as a direct result of its flouting of the Court’s order. 29. It is particularly galling that the Merchant Defendants have submitted a proposed. order so-ordering the transcript of the hearing “effective January 6, 2011,” thereby seeking to “upgrade” their conduct from a sanctionable disregard for the Court’s discovery instructions, to adirect violation of a court order, punishable by civil and criminal contempt. 30. The Merchant Defendants and Mr. Bemstein have willfully disregarded this Court’s order and engaged in frivolous conduct intended solely to stonewall and delay the court ordered production, so that said Defendants may continue to embezzle Plaintiffs’ share of theresidual payments. 31. The Merchant Defendants and Mr. Bemstein’s obstructionist and frivolous conduct is richly deserving of sanctions, up to and including entry of a default judgment, monetary sanctions, and Plaintiffs’ attomeys’ fees. 32. Additionally, the Merchant Defendants should be compelled to comply with the Court’s prior order. PLAINTIFFS ARE ENTITLED TO A TRO AND PRELIMINARY INJUNCTION 33. As a preliminary matter, at the lengthy January 6 hearing, the Court did not address the branch of Plaintiff's application seeking to enjoin Merchant and related Defendants from soliciting, transferring, or causing to be transferred any merchant account—serviced by Defendant National Processing Corp. (“NPC”) and associated with residual payment entitlements acquired by Merchant from BPS—to any other credit card processor or portfolio. 479283A. Plaintiffs are indisputably entitled to a temporary restraining order and preliminary injunction to this extent, as any transfer of merchant accounts would clearlyconstitute imeparable harm without adequate remedy at law. 35. The balance of equities tips decidedly in Plaintiffs’ favor as such conduct would violate Merchant’ s agreement with NPC, in addition to interfering with Plaintiffs’ rights. 36. With respect to the branches of the First OSC seeking to escrow funds, the Court found that Plaintiffs were not entitled to the requested NPC Injunction on the basis that Plaintiffs could not show irreparable harm since they primarily seek money damages. 37. Respectfully, however, the Court’s finding is contrary to well-settled case law, which clearly holds that dissipation of funds that are the subject of a lawsuit constitutes irreparable harm and merits preliminary injunctive relief to protect against such dissipation. See, eg., Ma v. Lien, 198 A.D.2d 186, 186, 604 N-Y.S.2d 84, 85 (1st Dep't 1993) (“Contrary to the finding of the IAS court, plaintiff has shown imeparable injury absent the relief sought. Defendant. . . has indicated his intention to share his winnings with his family, and the first installment has already been paid to him. Thus, if the requested relief is not granted, a substantial amount of money may be dissipated or otherwise unavailable for recovery.”); McNeil v. Mohammed, 32 A.D.3d 829, 829-30, 821 N.Y.S.2d 225, 225-26 (2d Dep’ t 2006) (“the plaintiff demonstrated that she would suffer irreparable harm absent preliminary relief” when she moved “for a preliminary injunction restraining the defendant, inter alia, from transferring or otherwise disposing of funds realized from the sale of certain real property”); AOM 1703 Lexington Ave. LLC v. Malik, No. 115718/05, 2006 WL 2726816, at *2 (Sup. Ct. NY. County Aug. 16, 2006) (“T]he insurance proceeds are clearly specific funds which are a subject of this action and, as such, plaintiffs will suffer irreparable ham if they are dissipated by the defendant’). 4792838. While certain cases have held that Plaintiffs seeking only monetary relief are not entitled to a preliminary injunction prohibiting a defendant from transferring or dissipating assets, see, e.g., Credit Agricole Indosuez v. Rossiyskiy Kredit Bank, 94 N.Y .2d 541, 548 (2000); Dinner Club Corp. v. Hamlet on Olde Oyster Bay Homeowners Ass'n, Inc., 21 A.D.3d 777, 778, 801 N-Y.S.2d 25, 26-27 (1st Dep't 2005), these cases “have expressly recognized that a plaintiffmay obtain a preliminary injunction where the assets sought to be restrained are specific fundswhich can righily be regarded as ‘the subject of the action.’”. AOM 1703 Lexington Ave., 2006 WL 2726816, at *2 (emphasis added); see also Dinner Club Corp., 21 A.D.3d at 778, 801 N.Y.S.2d at 26 (“Where the suit involves the plaintiff's claims to a specific fund, that fund is ‘the subject of the action’ and a preliminary injunction is appropriate under the express wording of CPLR 6301”); Ficus Investments, Inc. v. Private Capital Management, LLC, 61 A.D.3d 1, 11-12, 872 NY.S.2d 93, 101 (1st Dep't 2009) (where managing member and part owner of limited liability company that bought, managed and sold non-performing real estate mortgages commenced action against former corporate officers of the company for breach of fiduciary duty based on allegations that they misappropriated millions of dollars in funds and assets, trial courtjustified in granting preliminary injunction directing certain mortgage assets to be placed in escrow because those assets were “the subject of the action”); Ma, 198 A.D.2d at 186, 604 N-Y.S.2d at 85 (although ultimate relief sought was monetary damages, court reversed trial court's ruling, and granted plaintiff's motion for preliminary injunctive relief ordering future lottery payments to be escrowed because action was directed at a specific fund); Parker v. Parker, 196 Misc. 2d 672, 676, 766 N-Y.S.2d 315, 319 (Sup. Ct. Nassau County 2003) (“[I]nactions where the subject matter is a specific fund of money, such as lottery winnings, preliminary injunctive relief may lie upon the requisite showing of the likelihood of success on 10 47928the merits and that the balance of the equities lies in the movant's favor.”); New York State Crime Victims Bd. v. Majid, 193 Misc. 2d.710, 715, 749 N-Y.S.2d 837, 841-42 (Sup. Ct. Albany County 2002) (court granted plaintiff's motion brought under the “Son of Sam” law for preliminary injunctive relief enjoining inmate, who was about to receive a deposit of $15,000 into his prison inmate account, from spending funds in that account notwithstanding the general rule that an injunction is not available in a case seeking monetary damages because the account constituted a special fund which could be regarded as the subject of the action). 39. Here, the residual payments are specific funds which can rightly be regarded asthe subject of this action. 40. Specifically, Plaintiffs allege that they are entitled to portion of these specificfunds by virtue of various agreements between all of the parties in this action. 41. Under these circ*mstances, Plaintiffs have clearly shown ineparable injury and they are consequently entitled to the requested preliminary injunction. 42. Moreover, a preliminary injunction is warranted here for the independent reason. that Plaintiffs assert a cause of action for fraudulent conveyance. 43. Debtor and Creditor Law Section 279 provides (emphasis added): Where a conveyance made or obligation incurred is fraudulent as to a creditor whose claim has not matured he may proceed in a court of competent jurisdiction against any person against whom he could have proceeded had his Claim matured, and the court may, a. Restrain the defendant from disposing of his property. b, Appoint a receiver to take charge of the property, c. Set aside the conveyance or annul the obligation, or d. Make any order which the circ*mstances of the case may require. 4A, Indeed, in the context of fraudulent conveyance actions, courts routinely grant injunctive relief, including asset freeze orders and other remedies designed to prevent improper 11 47928dissipation of property, to ensure that assets and property are still available when the dispute is resolved. See, eg., Winchester Global Trust Co. Ltd. v. Donovan, 58 A.D.3d 833, 834 (2nd Dep't 2009) (affirming preliminary injunction baring dissipation of assets in fraudulent conveyance action where “the uncontrolled sale and disposition by the appellants of their assets would threaten to render ineffectual any judgment which the plaintiff might obtain’); Galleon Syndicate Corp. v. Pan Atlantic Group, Inc., 223, A.D.2d 510, 511-12, 637 N-Y.S.2d 104, 105- 06 (1st Dep't 1996); Mishkinv. Kenney & Branisel, Inc., 609 F.Supp. 1254 (S.D.N-Y. 1985), aff'd, 779 F.2d 35 (2d. Cir.). 45. Notably, courts grant such preliminary injunctions even where plaintiffs would not be entitled to such relief under CPLR § 6301. See, eg., Galleon Syndicate Corp., 223 A.D.2d at 512, 637 N-Y.S.2d at 105-06 (affirming grant of an injunction pursuant to DCL § 279 on a showing only that “there was adequate support in the record that [defendant] had formed.and transferred assets to an offshore affiliate ... that might hinder, delay or defraud either presentor future creditors, to warrant the temporary relief awarded by the trial court”); Trafalgar Power, Inc. v. Aetna Life Ins. Co., 131 F.Supp.2d 341, 350 (N.D.N-Y. 2001) (while a “court has no authority to issue a preliminary injunction freezing a debtor's assets pending adjudication of an action solely at law’ a preliminary injunction is proper where the “request for preliminary injunctive relief is . . rooted in the ultimate equitable relief. . under Debtor and Creditor Law § 279 should [plaintiff] prevail on its section 273 or 276 claims”). 46. Thus, because Plaintiffs assert causes of action for fraudulent conveyance, they are undoubtedly entitled to preliminary injunction preventing Defendants from further dissipating the relevant assets during the pendency of this action. 12 4792847. Finally, there is no question that the balance of equities tips in Plaintiffs’ favor. “Tn balancing the equities, the court must weigh the harm each side would suffer in the absence or face of injunctive relief.” Gerald Modell, Inc. v. Morgenthau, 196 Misc.2d 354, 363, 764 NY.S.2d 779, 786 (Sup. Ct. N-Y. County 2003). “[T]he balancing of the equities usually simplyrequires the court to look to the relative prejudice to each party accruing from a grant or denial of the requested relief.” Ma, 198 A.D.2d at 186-87, 604 N-Y.S.2d at 85 48. Furthermore, the issue of ensuring that other downlines are paid is a red herring, as Plaintiffs have repeatedly indicated that any TRO or preliminary injunction should include a carve-out allowing RBL or NPC to pay other legitimate downlines—i.e., downlines that hadbeen entitled to a share of the residual stream of these accounts prior to the accounts’ assignmentto Merchant. 49. As between Plaintiffs and Merchant Capital, the balance of equities tips clearly in favor of Plaintiffs. Here, Plaintiffs are being deprived of their livelihood thereby causing them severe prejudice. The Merchant Defendants, on the other hand, would suffer no prejudice froman Order enjoining the disbursem*nt of funds that they are indisputably not entitled to. 50. Merchant Capital’s unjustified and repeated refusal to honor the terms of the Downline Agreements, coupled with its repeated representations to Plaintiffs that it would honor these agreements, tips the balance of the equities decidedly in Plaintiffs’ favor. 51. As noted above, absent the requested injunction, there is a substantial probabilitythat the residual payments to which Plaintiffs are entitled will be dissipated, leaving no funds from which Plaintiffs can recover, making any eventual award a hollow victory. 52. In contrast, there is no harm to Defendants in placing these funds in an interest-bearing escrow account until this matter is adjudicated. See Ma, 198 A.D.2d at 187, 604 13 47928N-Y.S.2d at 85 (injunction should have been granted where the plaintiff would suffer irreparable injury absent the relief sought, and there was no great harm to defendants if the disputed monieswere kept in escrow pending resolution of the matter); AOM 1703 Lexington Ave. LLC v. Malik, No. 115718/05, 2006 WL 2726816, at *3 (Sup. Ct. N-Y. County Aug. 16, 2006). 53. As between Plaintiffs and RBL, the balance of equities also clearly tips in favor of Plaintiffs. A. Significantly, Plaintiffs seek a limited preliminary injunction, which would allowRBL to retain all funds necessary to fully service MCP’ s debt owed to it, but merely require RBLto place into an escrow the funds that would otherwise by payable to Merchant Capital. At this point, Plaintiffs no longer seek to enjoin RBL from servicing its debt (without prejudice to theirTight to seek such relief at a future date). Hence, RBL cannot claim any prejudice by reason of the injunction. 55. As RBL would not retain these funds in any event, it could not possibly beprejudiced from being required to place them in an escrow account. 56. Moreover, the fact that RBL is not the primary wrongdoer in this case is irrelevant. As the First Department explained in Ma: 14 47928[T]he IAS court erred when it found that the equities do not favor either side because no wrongdoing had been established. While the existence of some wrongdoing may impel a result for one side, the “balancing of the equities” usually simply requires the court to look to the relative prejudice to each party accruing from a grant or a denial of the requested relief. Here, as noted, the Plaintiff would suffer irreparable injury absent the relief sought. On the other hand, we can perveive no great harm to defendants if the monies disbursed by the State are kept in escrow by their counsel pending resolution of the matter 198 A.D.2d at 186-87, 604 N-Y.S.2d at 85. 57. The Court rightfully found that the numbers submitted by Plaintiffs are not definite and cannot form the basis of a preliminary injunction. 58. The Court stated that Plaintiffs could make a new motion for a preliminary injunction after Defendants fumish the reports as per the Court’s order. 59. Plaintiffs were unable to do so due to the Merchant Defendants’ failure to comply with the Court’s discovery order. 60. The Merchant Defendants should not be rewarded for their dilatory conduct and. flouting of the Court's clear directives. 61. Accordingly, Plaintiffs respectfully request that the Court issue a temporaryrestraining order until Defendants produce the reports, which can then serve as a basis for a preliminary injunction. 15 47928WHEREFORE, it is respectfully requested that Plaintiffs’ Order to Show Cause begranted in all respects and Plaintiffs be awarded allowable costs, disbursem*nts and attomeys’fees herein and such other and further relief as the Court may deem good and proper. Dated: Brooklyn, New York January 26, 2011 —~ Elie C. Poltorak 16 47928EXHIBIT Adle oem perma Ee Padg, thom*ow | eer At anlAS Beitr Part of the Supreme Court of the State of New A York, held in and for the County of New York, at the courthouse located e? at 60 Centre Street, State and City of New York, County of New York on the og ay of December, 2010. PRESENT: on. MARTIN SHULMAN Justice ewe YEHUDA KELLER, ALEXANDER TYREL Index No. PED ¢ Se OS */ ROSEAN, YAACOV LIPSKER, LECHAIM. ‘ MERCHANT SERVICES CORP., MERCHANT ORDER DEVELOPMENT GROUP, ZALMAN TO SHOW CAUSE BLACHMAN, MOSHE WISNEFSKY, YEKUSIEL CHANIN, and SHELLIE ZUCKERMAN and SUSAN HILLMAN as TRUSTEES OF THE WOODS EXEMPTION TRUST, Plaintiffs, -against- MERCHANT CAPITAL PORTFOLIOS, LLC, BUSINESS PAYMENT SYSTEMS, LLC, OLEG FIRER, LEON GOLDSTEIN, ANTHONY W. HOLDER, STAR CAPITAL HOLDING CORP., STAR CAPITAL MANAGEMENT, LLC, STAR CAPITAL JV, LLC, PROCESS PINK PAYMENTS, LLC, MERCHANT PROCESSING SERVICES CORP., UNIFIED PAY CORPORATION, MMOA INC. a.k.a. MONEYoz. 2) MOVERS OF AMERICA, INC., NATIONAL ROCESSING COMPANY, RBL CAPITAL OUP, LLC, THE COMVEST GROUP, MVEST INVESTMENT PARTNERS, ERGY HOLDINGS LLC, CYNERGY DATA, CYNERGY PROSPERITY PLUS, LLC, and * THROUGH 100, Defendants. wane eee eee een ne neeUpon the annexed Emergency Affirmation of Elie C. Poltorak, Affirmation inSupport of Elie C. Poltorak, Affidavit of Yaacov Lipsker, and Affidavit of YehudaKeller, all affirmed to on the OF day of December, 2010, along with the exhibitsannexed thereto, and upon all the prior papers and proceedings in this action, Let Defendants or their counsel, show cause before this Court, at LA.S. PartComme, Room JNO, at the courthouse located at 60 Centre Street, New York, NewYork, on the( say of - , 20 tl , at 9:30 a.m. or as soonthereafter as counsel may be heard, why an Order should not be made and entered: 1 Preliminarily enjoining Defendants from conveying, assigning, and/orencumbering any assets acquired by Defendant Merchant Capital Portfolios, LLC fromDefendant Business Payment Systems, LLC; ii. Preliminarily enjoining Defendants Oleg Firer, Leon Goldstein, AnthonyW. Holder, Star Capital Holding Corp., Star Capita) Management, LLC, Star Capital JV,LLC, Process Pink Payments, LLC, Merchant Processing Services Corp., Unified PayCorporation, and MMOA Ine. a.k.a. Money Movers of America, Inc., along with allpersons acting in concert with the aforesaid and all persons with notice of this Order,from soliciting, transferring, or causing to be transferred any merchant account—servicedby Defendant National Processing Corp. and associated with residual paymentsntitlements acquired by Defendant Merchant Capital Portfolios, LLC from Defendant xiness Payment Systems, LLC—to any other credit card processor or portfolio; iil, Preliminarily enjoining Defendant National Processing Corp. from g any residual payments to RBL Capital Group LLC or any other Defendantherein, without first deducting the sum of $61,338 from each monthly residual payment and holding same in escrow; iv. Preliminarily enjoining Defendant National Processing Corp. from disbursing any residual payments to RBL Capital Group LLC or any other Defendant herein, without first deducting the sum of $561,733.35, such sum representing the amount claimed by Plaintiffs in past due residual payments, and holding same in escrow; v Granting Plaintiffs expedited discovery against Defendants Oleg Firer, Leon Goldstein, Anthony W. Holder, Star Capital Holding Corp., Star Capital Management, LLC, Star Capital JV, LLC, Process Pink Payments, LLC, Merchant Processing Services Corp., Unified Pay Corporation, and MMOA Inc. a.k.a. Money Movers of America, Inc.; and vi. Granting Plaintiffs such other and further relief as may be just, equitable, and proper. ond = 5 Sufficient cause ceases : therefor, pending a hearing of this application, it is 2 i ORDERED, that Defendants are hereby enjoined from conveying, assigning, | and/or encumbering any assets acquired by Defendant Merchant Capital Portfolios, LLC \ from Defendant Business Payment Systems, LLC; and it is furtherSouJ tv ORDERED, that Defendants Oleg Firer, Leon Goldstein, Anthony W. Holder, Star Capital Holding Corp., Star Capital Management, LLC, Star Capital IV, LLC, Process Pink Payments, LLC, Merchant Processing Services Corp., Unified Pav mu Corporation, and MMOA Inc. a.k.a. Money Movers of America, Inc., along persons acting in concert with the aforesaid and persons with notice of (Weg AUS 4 hereby enjoined from soliciting, transferring, or causing to be tran. 3 478account—serviced by Defendant National Processing Corp. and associated with residual /) payment entitlements acquired by Defendant Merchant Capital Portfolios, LLC from ‘t Defendant Business Payment Systems, LLC-—to any other credit card processor or i. and it is further= St > ERED, that Defendant M' erchant Capital Portfe hose LC/shall everpics a top full ac; pr they * are entitled to purguant to their contractsG with oka Bu ces ryment Syster ng Lbesthin seven (7) days“6f receipt of this Order; and it is furth t Sete oaperep that Defendant National Processing Corp. is enjoined from disbursing any residual payments to RBL Capital Group LLC or any other Defendant herein, without first deducting the sum of $61,338 from each monthly residual payment and etding same in escrow; and it is further =a ORDERED. that Defendant National Processing Corp. s enjoined from disbursing any residual payments to RBL Capital Group LLC or any other Defendant herein, without first deducting the sum of $561,733.35, such sum representing the amount plaskehskdates claimed by Plaintiffs in past due residual payments, and ean Ws in ste and it is Lup Cr epick fA bs Bebe kt furth Orders, | cu ue tull LAR A 4 orepetif— 70 & Bory egrole Azs i AEM eee © Te. ORDERED, 1 fen pposition papers to this Tder She se be SL filed in Part Comm. ___ and served upon Plaintiffs’ counsel via overnight deli delives? on or 2y Py ———— coed before OrT; and that Plaintiffs reply papers be tty filed in Part Comm, hd served upon Defendants’ counsel via overnight delivery on or feult OLA ie befor , 2011 and that counsel appear for oral Vi icef Ie ni b arguments on the re tehereof. egao?a ws \ 47815 EXHIBIT A _ ormLet service of a true copy of thiss Order and the papers upon which it is b: sed,together wi Ss SUN Mow > awe Complete OTS ONEupon Defendants via dblivery, -or_theiz counsel wiaEBeF, on or before c- 30 20 1%, be deemed good and sufficient service <7 Oral Argument ENTER Af Directed a JSC / TS 47815At an Ex Parte Motion Tem of the Supreme Court of the State of New CONFORMED COPY York, held in and for the County of New York, at the courthouse located at 60 Centre Street, Stateand City of New York, County of New York on the 29th day of December, 2010.PRESENT: Hon. Martin Shulman, Justicewane nnn enn enn enn ee eee!YEHUDA KELLER, ALEXANDER TY REL Index No. 652408/10 EROSEAN, YAACOV LIPSKER, LECHAIMMERCHANT SERVICES CORP., MERCHANT ORDERDEVELOPMENT GROUP, ZALMAN TO SHOW CAUSEBLACHMAN, MOSHE WISNEFSKY,YEKUSIEL CHANIN, and SHELLIEZUCKERMAN and SUSAN HILLMAN asTRUSTEES OF THE WOODS EXEMPTIONTRUST, Plaintiffs, -against-MERCHANT CAPITAL PORTFOLIOS, LLC,BUSINESS PAY MENT SYSTEMS, LLC, OLEGFIRER, LEON GOLDSTEIN, ANTHONY W.HOLDER, STAR CAPITAL HOLDING CORP.,STAR CAPITAL MANAGEMENT, LLC, STARCAPITALJV, LLC, PROCESS PINKPAYMENTS, LLC, MERCHANT PROCESSINGSERVICES CORP., UNIFIED PAYCORPORATION, MMOA INC. a.k.a. MONEYMOVERS OF AMERICA, INC., NATIONALPROCESSING COMPANY, RBL CAPITALGROUP, LLC, THE COMVEST GROUP,COMVEST INVESTMENT PARTNERS,CYNERGY HOLDINGS LLC, CYNERGY DATA,LLC, CYNERGY PROSPERITY PLUS, LLC, andDOES 1 THROUGH 100, Defendants.a---. ---. aa.
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Ruling
Aug 30, 2024 |23CV-0203159
BELTRAN VS. M.K. & A., LLCCase Number: 23CV-0203159This matter is on calendar for a trial setting conference. The Court notes that Plaintiff filed a Motion for Leave toFile a First Amended Complaint that is calendared for hearing on September 16, 2024. The matter is continuedto Monday, September 16, 2024 at 9:00 a.m. in Department 63 for status of the case. No appearance isnecessary on today’s calendar.
Ruling
MEMBERS 1ST VS. ESTATE OF SMITH, ET AL.
Aug 26, 2024 |CVG21-0000494
MEMBERS 1ST VS. ESTATE OF SMITH, ET AL.Case Number: CVG21-0000494Tentative Ruling: Plaintiff Members 1st Credit Union moves for an award of attorney’s fees in the amount of$23,666.00 pursuant to Civil Code Section 1717. In reviewing the file, the Court previously noted defects withthe pleadings and service which may affect the Court’s jurisdiction and its prior judgment. Accordingly, theCourt requested supplemental briefing on the jurisdictional issue. Plaintiff has submitted Supplemental Briefingwhich has been reviewed by the Court. Both the jurisdictional issue and the motion for attorney’s fees areaddressed below.Jurisdiction: The Complaint in this action was filed on April 14, 2021. It names two separate Defendants, theEstate of Dennis Linwood Smith, and Virginia E. Smith. It does not name the Personal Representative of theEstate of Dennis Linwood Smith as a Defendant. An estate is not a legal entity, it is merely a name to indicatethe sum of assets and liabilities of a decedent. Bright’s Estate v. Western Air Lines (1951) 104 Cal.App.2d 827,828. An estate can neither sue nor be sued. Id. at 829. For these reasons, Plaintiff was required to file suit againstthe Personal Representative of the Estate but did not do so.Additionally, the Estate was purportedly served on May 3, 2021 on Virgina E. Smith as the “Registered Agent”of the Estate. Estates do not have Registered Agents. The Court takes judicial notice of the filing in the Estateof Dennis Linwood Smith (Case No. 30929). Virgina E. Smith was appointed as Personal Representative of theEstate in that proceeding on June 14, 2021, after she was served. Therefore Virgina E. Smith was not the PersonalRepresentative at the time of service and had no authority to act on behalf of the Estate. A fact made clear byVirgina Smith’s answer filed in this action on May 28, 2021, again before her appointment as PersonalRepresentative. The answer was made on behalf of herself as “an individual.” It also pointed out on multipleoccasions that there was a separate Estate proceeding being pursued and that no Personal Representative had yetbeen appointed.Based on the foregoing, the Court had concerns related to whether it obtain personal jurisdiction over Ms. Smithas the Personal Representative of the Estate of Dennis Linwood Smith. If the Court did not have personaljurisdiction, the prior judgment would have been void. See Lee v. An (2008) 168 Cal.App.4th 558 (improperservice of a summons and complaint results in a lack of personal jurisdiction over the defendant, and thus anyensuing default or judgment entered against the defendant is void.). As noted above, the Personal Representativewas never appropriately named in the Complaint and Ms. Smith was never adequately served in her capacity asthe Personal Representative. Ms. Smith did appear at the trial on October 11, 2023 purportedly on her behalf andas the Personal Representative of the Estate. Ms. Smith stipulated to a specific judgment against both herself, asan individual, and as against the Estate. Generally, one who is not named in the complaint is not a properdefendant and not a party to an action. Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114Cal.App.4th 1135, 1145. However, a party may appear in an action even though they are not named in thecomplaint. Id. at 1146. A voluntary appearance is a waiver of any failure to name that party in the complaint.Farmers & Merchants Nat. Bank of Los Angeles v. Peterson (1936) 5 Cal.2d 601, 606. The Court finds that Ms.Smith voluntarily appeared as the Personal Representative at the trial on October 11, 2023, and therefore waivedany defect based on Plaintiff’s failure to properly name the Personal Representative in the Complaint. As for thelack of service, Ms. Smith’s voluntary appearance as Personal Representative on behalf of the estate waived anydefects in service. A general appearance is the equivalent to service of the summons. Dial 800 v. Fesbinder(2004) 118 Cal.App.4th 32, 52. “A general appearance operates as a consent to jurisdiction of the person,dispensing with the requirement of service of process, and curing defects in service.” Id.; citing 2 Witkin, Cal.Procedure (4th ed. 1996) Jurisdiction, § 190, p. 756). “A general appearance occurs when the defendant takespart in the action or in some manner recognizes the authority of the court to proceed.” Dial 800, supra 118Cal.App.4th at 52. “A general appearance occurs where a party, either directly or through counsel, participates inan action in some manner which recognizes the authority of the court to proceed. It does not require any formalor technical act.” Id. Here, Ms. Smith appeared on behalf of the Estate at trial and agreed to the Court’s entry ofa judgment against herself and against the Estate. Ms. Smith undoubtedly recognized the authority of the Courtto proceed and requested affirmative relief in the form of a stipulated judgment. Based on the foregoing, theCourt finds that Ms. Smith appeared as the personal representative and made a general appearance excusing theneed for service. The Court finds that it had personal jurisdiction over Ms. Smith both as an individual and as thePersonal Representative as the Estate. The judgment is valid.Attorney’s Fees: By stipulation of the parties, the Court has already issued a judgment that attorney’s fees arerecoverable by Plaintiff. The attorney’s fees are based on a contract which was executed by the Decedent.Therefore, attorney’s fees will only be awarded against the Estate.Civil Code § 1717 entitles a prevailing party on a contract to “reasonable attorney’s fees” as fixed by the court.Plaintiff bears the burden of establishing the reasonableness of the fees sought. CCP § 1033.5(c)(5). “[T]he feesetting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expendedmultiplied by the reasonable hourly rate.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “A courtassessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the timespent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.’” (Ketchumv. Moses (2001), 24 Cal.4th 1122, 1131-1132.) The lodestar figure may then be adjusted upward or downward bythe court based on a number of factors. (Ibid.) Roe v. Halbig (2018) 29 Cal.App.5th 286, 310. Adjustment factorsthat may be considered in awarding a multiplier include: 1) the novelty and difficulty of the questions involved,2) the skill displayed in presenting them, 3) the extent to which the litigation precluded other employment, 4) thecontingent nature of the fee award. Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324,348. In determining the amount of attorney's fees to which a litigant is entitled, an experienced trial judge is thebest judge of the value of professional services rendered in his or her court. Granberry v. Islay Investments (1995)9 Cal.4th 738, 752.Here, the Declaration of Laurel Adams provides the evidentiary basis for the attorney’s fees. Ms. Adamsidentifies hourly rates in the range of $290 to $300. The Court finds the hourly rates to be reasonable for thiscommunity and will be awarded. The paralegal rates, however, are excessive. Their rates are from $195 to $250an hour. The Court has not awarded such high paralegal rates in any prior action. The Court finds that areasonable paralegal hour rate is $100 per hour. As for the number of hours, no opposition has been filed and areview appears to show that billing descriptions are reasonable and related to the litigation. Accordingly, theCourt finds the number of hours requested to be reasonable.
Ruling
MINGXI ZHU, AN INDIVIDUAL VS SURROGATE FIRST, A CALIFORNIA CORP.,, ET AL.
Aug 27, 2024 |24STCV04836
Case Number: 24STCV04836 Hearing Date: August 27, 2024 Dept: 52 Tentative Ruling: Defendants SurrogateFirst and Lina Lis Demurrer and Motion to Strike Portions of Second Amended Complaint Requests for Judicial Notice Defendants SurrogateFirst and Lina Li request judicial notice of three exhibits: (A) a signed contract between plaintiff Mingxi Zhu and SurrogateFirst, (B) an estimated cost sheet & timeline of deposits, and (C) escrow agreements executed by plaintiff. The documents are ostensibly subject to judicial notice because they are not reasonably subject to dispute, so the court may take judicial notice of their contents and legal effects, but not the truth of statements of fact made therein. (See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265; Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 666, fn. 2.) Plaintiff did not oppose defendants requests for judicial notice. Defendants unopposed requests for judicial notice are granted. Demurrer Defendants SurrogateFirst and Lina Li demur to all six causes of action alleged by plaintiff Mingxi Zhus second amended complaint. Summary of Allegations The second amended complaint alleges, On or about July 16, 2021, Plaintiff had his first conversation with Lina Li, the founder of SurrogateFirst regarding Plaintiffs request to contract with surrogate mothers to birth six (6) babies in the Chinese Year of the Tiger. (SAC, ¶ 11.) He requested that the mothers chosen to have a history of high success rates in birth, including a healthy medical history with no use of drugs and alcohol. Additionally, Plaintiff requested that the babies have German or Jewish descent. Lina Li agreed to these requests on behalf of SurrogateFirst, representing to Plaintiff that these terms would be a part of the contract. (¶ 12.) The second amended complaint continues, On or about July 23, 2021, Lina Li sent Plaintiff a surrogacy contract (the Contract), pressuring him to sign as soon as possible, assuring him that his requests would be met, as well as additional assistance in childcare. & Plaintiff emphasized to Lina that he did not understand the contract that she had sent him. However, Lina Li assured Plaintiff of the orally agreed upon terms of the contract, including the aforementioned requests and the guarantee that if any of the babies were not born, Plaintiff would be refunded the amount he paid for each failed surrogacy. (SAC, ¶ 13.) Based on the misrepresentations from Lina Li, and given the time constraints, the Contract was signed by plaintiff on or about August 31, 2021. (¶ 14.) Plaintiff paid SurrogateFirst $650,000. (SAC, ¶ 14.) Plaintiff alleges the surrogacies resulted in only providing four children instead of six. (SAC, ¶ 26.) He further alleges defendants requested him to pay additional funds several times (¶¶ 15, 18-19) but did not provide an accounting of the bills and receipts for them when requested (¶ 20). Plaintiff also alleges Li ultimately agreed to refund $190,000 but did not do so. (Ibid.) 1st Cause of Action: Breach of Contract Plaintiff does not allege sufficient facts for breach of contract. The elements of breach of contract are: (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendants breach, and (4) the resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) The second amended complaint alleges defendants breached the Contract by only providing four children to Plaintiff, mishandled the birth certificate documentation and related documentation, resulting in the additional unnecessary fees, used the funds for improper purposes, asked for additional funds not reflected in the contract, and failed to reimburse Plaintiff for the many failed surrogacies. (SAC, ¶ 26.) But the contract attached to the second amended complaint, which includes an integration clause (SAC, Ex. 1, ¶ 25), does not include any such terms. If the allegations in the complaint conflict with attached exhibits, [courts] rely on and accept as true the contents and legal effect of the exhibits. (Chisom v. Board of Retirement of Fresno County Employees Retirement Assn. (2013) 218 Cal.App.4th 400, 410.) As for providing four children instead of six, the contract expressly and repeatedly states SurrogateFirst does not guarantee birth of any children and will not refund any payments. It provides, SurrogateFirst is not liable or responsible for the outcome of the transfer/pregnancy. Intended Parents assumes all financial risk that may result from the Surrogate process. (SAC, Ex. 1, ¶ 2.) NO portion of the SurrogateFirst agency fees paid by the Intended Parents is refundable, regardless of whether the Intended Parents ever achieve a pregnancy, child or if Intended Parents decide to terminate relations and/or services rendered by SurrogateFirst. (Id., ¶ 3.) Intended Parents understand that SurrogateFirst CANNOT guarantee any outcome. Intended Parents agree this is a risk that they are assuming by entering into this Agreement. (Id., ¶ 15.) SurrogateFirst does not, will not, and cannot guarantee the results of any given medical procedure, or that any given Surrogate will conceive a child as a result of those medical practices, or that a child(ren), if conceived, will be free of abnormality or defect. (Id., ¶ 20.) As for demanding additional funds, the contract provides, The Intended Parents understand that the estimated cost sheet is only an estimate and is subject to change. (SAC, Ex. 1, ¶ 5.) The contract also refers to [t]he estimated costs sheet (ibid.), lists several costs excluding during pregnancy in amounts described as TBD or various. (RJN, Ex. B, pp. 2-3.) It further states, This is only an estimated fee for one surrogate cycle. Item listed as TBD cannot be determined, and will be due at the time when it occurs. (Id., p. 3.) Finally, for the purported breaches that defendants mishandled the birth certificate documentation and used the funds for improper purposes (SAC, ¶ 21), the second amended complaint does not make factual allegations establishing those constituted breaches of contract. That defendants mishandled documents or that defendants purposes were improper are conclusions, not factual allegations that the court must accept as true on demurrer. Plaintiff does not adequately allege facts showing defendants did something with the birth certificates that violated the contracts terms or used money he paid in a manner that violated the contracts terms. Plaintiffs opposition argues, While Defendants are focused on the written contracts integration clause among its other terms regarding what is and is not guaranteed, Plaintiff makes it clear that the written contract should be null and void as a result of the fraud, thus the oral contract is what remains. (Opp., pp. 4-5.) He contends that the written contract should be voided due to the pressure and inducement enacted by Defendants. (Id., p. 5.) The second amended complaint does not allege that. Plaintiff may not oppose a demurrer based on allegations not included in the pleading. Moreover, even if the second amended complaint included these allegations, they would not make the contract void. [M]isrepresentation does not render the contract void unless the misled party, before making the agreement, lacked a reasonable opportunity to learn its terms. (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 421.) The second amended complaint alleges Li sent plaintiff the contract [o]n or about July 23, 2021 (SAC, ¶ 13), and that he signed it on or about August 31, 2021 (¶ 14). The only reasonable conclusion drawn from these allegations is that those five weeks between receiving and signing the contract constituted a reasonable opportunity to learn the contracts terms. And though plaintiff alleges he told Li that he did not understand the contract (¶ 13), the contract includes a translation (SAC, Ex. 1). Neither the second amended complaint nor the contract identify the translated language, but plaintiffs initial complaint alleged, While Plaintiffs primary language is Mandarin, a separate translation was given to him written in Mandarin on the same contract. (Comp., ¶ 27.) This cause of action also fails as against defendant Lina Li for an independent reason. The contract is between plaintiff and SurrogateFirst. (SAC, Ex. 1, p. 1.) Li is not a party to the contract. 2nd and 3rd Causes of Action: Negligent and Intentional Misrepresentation Plaintiff does not allege sufficient facts for these causes of action. Both require justifiable reliance on the misrepresentation. (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243 (Apollo).) Plaintiff alleges he reasonably relied on six oral misrepresentations that duplicate the purported breaches of contract discussed above. (SAC, ¶¶ 29, 37.) Based on similar allegations, McClure v. Cerati (1948) 86 Cal.App.2d 74 held that a demurrer was properly sustained to a cause of action (equitable estoppel) that required reasonable reliance on a misrepresentation. The court explained, The gist of the alleged misrepresentation is that the defendant assured plaintiff that the written contract contained the oral agreements with respect to his compensation in the event of his discharge. But it affirmatively appears from the pleading that plaintiff could not have been ignorant of the provisions of the written contract because he joined in the preparation of that document and signed it. We must assume that he read and fully understood that contract. Under such circ*mstances he had no right to rely upon statements in direct conflict with the clear provisions of the written contract. (Id. at p. 87.) The same reasoning applies here. As a matter of law, plaintiffs reliance on the alleged oral misrepresentations could not be reasonable because plaintiff signed an integrated written contract that expressly contradicted them. 4th Cause of Action: Constructive Fraud Plaintiff does not allege sufficient facts for this cause of action. Constructive fraud requires a fiduciary relationship. (Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1249.) Plaintiff does not allege facts establishing a fiduciary relationship between him and defendants. A mere contract or a debt does not constitute a trust or create a fiduciary relationship. (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 3334.) [T]he key factor in the existence of a fiduciary relationship lies in control by a person over the property of another. (Apollo, supra, 158 Cal.App.4th at p. 246.) Here, plaintiff alleges only a contractual relationship. He does not allege he entrusted his property to defendant. Though plaintiff may have trusted SurrogateFirsts expertise in surrogacy, that does not create a fiduciary relationship. As the California Supreme Court has noted, It is not at all unusual for a party to enter into a contract for the very purpose of obtaining the superior knowledge or expertise of the other party. Standing alone, that circ*mstance would not necessarily create fiduciary obligations, which generally come into play when one partys vulnerability is so substantial as to give rise to equitable concerns underlying the protection afforded by the law governing fiduciaries. (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 389.) Plaintiff does not allege facts showing he was so vulnerable that defendants owed him fiduciary duties. 5th Cause of Action: Breach of Implied Covenant of Good Faith and Fair Dealing Plaintiffs opposition concedes and states he will dismiss this cause of action. (Opp., p. 6.) 6th Cause of Action: Common Count Money Had and Received Plaintiff does not allege sufficient facts for this cause of action. A common count is not a specific cause of action, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness. & When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable. (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394.) Plaintiffs sixth cause of action alleges the same debt as his other claims: Defendant received money that was intended to be used for the benefit of Plaintiff and the aforementioned Contract for surrogacies (SAC, ¶ 58), but the money was not used for those purposes (¶ 59). This cause of action therefore fails along with the first five. Motion to Strike Defendants SurrogateFirst and Lina Li move to strike several portions of plaintiffs second amended complaint. The court will sustain defendants demurrer to the entire second amended complaint. The motion to strike is therefore moot. Disposition Defendants SurrogateFirst and Lina Lis demurrer to plaintiff Mingxi Zhus second amended complaint is sustained with 20 days leave to amend. Defendants motion to strike is denied as moot.
Ruling
THE PEOPLE OF THE STATE OF INDIANA VS FRAN COHEN, AN INDIVIDUAL, ET AL.
Aug 29, 2024 |24STCV13785
Case Number: 24STCV13785 Hearing Date: August 29, 2024 Dept: 34 State of Indiana v. Cohen, et al. (24STCV13785) Defendants Motion to Dismiss is DENIED without prejudice. Background Plaintiff The People of the State of Indiana (Plaintiff) alleges as follows: Fran and Menashi Cohen (Fran and Menashi) misappropriated property of Plaintiff by illicitly retaining and failing to report money to the State of Indiana that Defendants owed for sales taxes, use taxes, or other taxes. The Defendants misappropriated the Plaintiffs monies by knowingly falsifying information in tax documents, tax returns, Small Business Administration loan documents, and other documents. The Defendants undercalculated and underpaid the amount due and owing to Plaintiff. The Defendants knowingly or intentionally used the ill-gotten gains to acquire personal and real property including the property located at 623 N Beverly Drive, Beverly Hills, CA 90210 (the Beverly Hills Property). Defendants also conducted, supervised, or facilitated transactions involving the proceeds of the ill-gotten gains. Plaintiff is informed and believes, and thereon alleges that the Defendants used their ill-gotten monies that rightfully belong to Plaintiff to purchase, meet their loan obligations, maintain, and repair the Beverly Hills Property. Therefore, Plaintiffs are entitled to the legal and equitable ownership of the Beverly Hills Property. Plaintiff is informed and believes, and thereon alleges that the Defendants resided in the Beverly Hills Property until 2013. In 2016, the Defendant transferred the Beverly Hills Property to Defendant Quarteroak, LLC (Quarteroak and with Fran and Menashi, collectively Defendants), a limited liability company in which Fran is the sole member. On June 3, 2024, Plaintiff filed a complaint, asserting causes of action against Defendants and Does 1-25 for: 1. Intentional Misrepresentation 2. Conversion 3. Unjust Enrichment 4. Violation of California Penal Code § 496(c) Legal Standard "When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a form outside the state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just. (Code Civ. Proc., § 410.30, subd. (a).) The doctrine of forum non conveniens is an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.) A court must first determine whether the alternate forum is a suitable place for trial. (Id., at pp. 751-52.) Second, if it is, the court must consider the private interests of the litigants and the interests of the public in retaining the action for trial in California. (Id.) The private interest factors are those that make trial expeditious and relatively inexpensive, including: (1) ease of access to sources of proof; (2) the cost of obtaining attendance of witnesses; and (3) the availability of compulsory process for attendance of unwilling witnesses. (Id.) The public interest factors include more general concerns related to the local community in which the case will be tried, namely: (1) avoidance of overburdening local courts with congested calendars; (2) protecting the interests of potential jurors; and (3) weighing the competing interests of California and the alternate jurisdiction in the litigation. If the court finds that in the interest of substantial justice an action filed in California should be adjudicated elsewhere, the court may stay or dismiss the action on such conditions as may be just. (Id.) Discussion Defendants seek to dismiss the case pursuant to section 410.30(a). They argue that the alleged liability in both actions is based on alleged wrongful conduct by Menashi involving state tax documents, state tax returns, and undercalculation and underpayment of taxes purportedly due and owing to the State of Indiana. (See Motion to Dismiss, at pp. 2-3.) Defendants further contend that Plaintiff already chose the appropriate forum for the alleged misconduct that exclusively arose within the State of Indiana and the harm, if any, occurred exclusively within the borders of Indiana. (Id., at p. 3.) In fact, a review of the Complaint and the specific causes of action suggest that the underlying conduct, i.e. the misrepresentation to the taxing and governmental authorities, is what provides Plaintiff an ability to seek a monetary judgment against Defendants. The Beverly Hill Property is merely a tool to collect a judgment based on the illegal conduct. Plaintiff contends Defendants have failed to demonstrate that Indiana is a suitable, alternative forum because their claim in their own courts may be barred by a statute of limitations claim. (Opposition, at p. 5 [emphasis added].) In fact, Plaintiff contends, Defendants refused to waive any rights they have to raise a statute of limitations defense in its home court. That, according to Plaintiff, is the reason why Indiana is not a suitable, alternative forum. However, that begs the question why Plaintiff is using a separate court to litigate a matter exclusively in the jurisdiction of its own court. If the statute of limitations is a bar to a potential civil law suit in Indiana, why would it not be one here? Moreover, if its not a bar here yet, then why should Plaintiff be entitled to proceed here when Indiana law could apply?[1] Essentially, this case boils down to Plaintiffs inability to file a lis pendens to preserve the status quo of the Beverly Hills Property. Moreover, it appears that Plaintiff is attempting to file this lawsuit in order to protect an asset that would be used to enforce a potential judgment. (Opposition, at p. 9.) The court does not intend to be used as a place holder for a litigant to collect on its judgment. Nevertheless, the court see a more immediate problem. Plaintiff further contends Defendants have provided no evidence. It is correct! Without proper factual contentions placed before the court by the moving party, the court finds Defendants have not met their burden to have the court exercise its discretionary power to dismiss or, at a minimum, stay the action. The motion is denied. [1] The Declaration of Jeffrey N. Brown, filed after the Opposition but before the Reply, reinforces the courts belief that the Beverly Hills Property is a mere product of the liability but does not form the basis for liability.
Ruling
Dwight Nelson vs. John Doerr
Aug 27, 2024 |23CECG05134
Re: Dwight Nelson v. Denise Brehm Superior Court Case No. 23CECG05134Hearing Date: August 27, 2024 (Dept. 403)Motion(s)(3x): (1) Defendants Clarissa Ball and Investment Exchange Services, Inc.’s demurrer to the complaint (2) Defendants Denise Brehm and Bay Area Escrow Services’ demurrer to the first amended complaint (3) Plaintiff’s demurrer to the answer by Defendants Joseph Jason Doerr and Sullivan McGreggor & DoerrTentative Ruling: To sustain the demurrers by defendants Clarissa Ball and Investment ExchangeServices, Inc., and Denise Brehm and Bay Area Escrow Services. To grant leave to amend.The Second Amended Complaint shall be filed within ten (10) days from the date of thisorder. The new amendments shall be in bold print. To overrule plaintiff’s demurrer to the answer by Defendants Joseph Jason Doerrand Sullivan McGreggor & Doerr.Explanation: Under long-settled rules, a demurrer “admit[s] all material facts properly pleaded,but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5Cal.3d 584, 591.) In other words, “[w]e disregard legal conclusions in a complaint; theyare just a lawyer's arguments.” (Wexler v. California Fair Plan Association (2021) 63Cal.App.5th 55, 70, emphasis added.) A demurrer challenges defects apparent from theface of the complaint and matters subject to judicial notice. (Blank v. Kirwan (1985) 30Cal.3d 311, 318.) A general demurrer is sustained where the pleading is insufficient tostate a cause of action or is incomplete. (Code Civ. Proc., § 430.10, subd. (e)1; Estate ofMoss (2012) 204 Cal.App.4th 521, 535.) Among other things, both sets of demurring defendants contend the subjectcauses of action (three thru six) are factually insufficient. Although alleging at least partof the subject contracts were written (see First Amended Complaint (“FAC”) ¶¶ 40, 65)the complaint does not attach the subject contract(s). Nor does it otherwise describewhether and to what extent the contracts with the entities auspiciously described as“escrow defendants” and “accommodator defendants” were written, oral, or implied –itself a grounds for demurrer. (See § 430.10, subd. (g).)1 Undesignated code sections refer to the Code of Civil Procedure. The absence of the written contract(s) obscures when each set of defendants’involvement in the sequence of events occurred – a sequence which spans six monthsand involves numerous interests, defendants, and unnamed parties. (FAC, ¶¶ 12-29.) Inaddition, the failure to attach the written agreement and/or precisely describe thecontracts prevents a clear allegation of the duties and obligations delimiting the scopeof liability. (See Siegel v. Fidelity Nat. Title Ins. Co. (1996) 46 Cal.App.4th 1181, 1193[uncontroverted testimony of obedience to escrow instructions, though oral, absolvedliability]; Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186 [the defendant’s breachis elemental for a breach of contract claim].) Plaintiff’s oppositions include the sentimentthat attachment of the written complaint is unnecessary, in part, because “[n]ot all theterms of the written agreement are even relevant.” (See Opp. to Dem. by InvestmentProperty Exchange and Clarissa Ball, at p. 3:24 2.) Nevertheless, without the writtenagreements, or at least a more precise description, the complaint is inadequate to“acquaint [the] defendant[s] with the nature, source and extent of [Plaintiff’s] claims.”(Doe v. City of Los Angeles (2007) 42 Cal.App.4th 531, 549-550.) Accordingly, thedefendants’ demurrers are sustained. Considering this is first response to a demurrer,leave to amend is granted. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.) Finally, demurrers to an answer apply the same principles as demurrers to acomplaint (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732), anddefenses amounting to a traverse or denial do not need additional factual allegationsbeyond those alleged in the complaint. (State Farm Mutual Auto, Ins. Co. v. SuperiorCourt (1991) 228 Cal.App.3d 721, 725.) Defendants’ Joseph Doerr and SullivanMcGreggor & Doerr’s answer mirrors the overall generality present in plaintiff’s complaintand is thus sufficient. Therefore, plaintiff’s demurrer is overruled. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: JS on 8/23/2024 . (Judge’s initials) (Date)2See also Plaintiff’s Opposition to the Demurrer by Denise Brehm and Bay Area Escrow Services,at p. 2:11-14, relying on rhetoric that “everyone who has purchased a home or any other realestate in California knows ….”
Ruling
SHANE BUSCH, AN INDIVIDUAL VS MICHAEL DAWSON, AN INDIVIDUAL, ET AL.
Aug 28, 2024 |23STCV16294
Case Number: 23STCV16294 Hearing Date: August 28, 2024 Dept: 57 The Court is denying as moot the motion of Plaintiff Shane Busch for an order deeming admitted the matters set forth in Busch's request for admissions that were served on Defendant Onhaus LLC. The motion is moot because after it was filed, the Court struck Onhaus's answer to Busch's complaint and entered a default against Onhaus. The Court took those steps after Onhaus's counsel was relived from representing Onhaus in this action, which left Onhaus, a corporation, unrepresented.. Corporations may not represent themselves in civil litigation in California. If they become self-represented, the Court is obligated to strike the corporation's answer to the plaintiff's complaint and enter a default against the corporation.
Ruling
BRIGETTE LEE LAFAUCI vs. TOYOTA MOTOR SALES, U.S.A., INC
Aug 28, 2024 |24CV13567
No appearances necessary. Upon review of Defendant’s CMC statement, the matter has settled; however, no Notice of Settlement of Entire Case (CM-200) or Request for Dismissal (CIV-110) has been filed by Plaintiff. Plaintiff is ordered to file either the Notice of Settlement or Request for Dismissal at least 10 days prior to the hearing. The matter is set for the Court's Motion to Dismiss pursuant to CRC 3.1385 on October 22, 2024 at 10:00 a.m. in Department 3.
Ruling
Angel Wang, et al vs Xinrui "Lisa" Li, et al
Aug 30, 2024 |22CV00872
22CV00872WANG v. LI MOTION FOR ATTORNEYS’ FEES (UNOPPOSED) The unopposed motion is granted as discussed below. I. BACKGROUND This complaint was filed on May 2, 2022, against Lisa Li and California SunshineDevelopment, LLC, claiming damages in the amount of $700,000.00 for breach of contract.Plaintiffs obtained a judgment against defendants by way of a motion for summary judgment,granted by this court on November 22, 2022, and amended on March 3, 2023. Below is atimeline of relevant events: - December 15, 2021, plaintiffs and defendants entered into a settlement agreement. The agreement contains a prevailing party attorneys’ fees clause relating to enforcement actions. Defendants failed make payments due as per the agreement. - May 2, 2022, plaintiffs filed this action. - November 22, 2022, the court granted plaintiffs’ motion for summary judgment in the amount of $700,000.00. - February 21 ,2023, the court granted plaintiff’s motion for attorneys’ fees associated with the motion for summary judgment in the amount of $13,200 plus costs. - March 3, 2023, plaintiffs filed a separate complaint (23CV00674): uniform voidable transactions. - July 26, 2023, plaintiffs filed a motion for an order to charge member’s interest in an LLC. - November 3, 2023, the court granted plaintiffs’ charging order in the amount of $757,873.63. II. MOTION Plaintiffs seek $157,029.50 in attorneys’ fees and $3,644.84 in costs, pursuant to Code ofCivil Procedure section 685.040. The motion is made on the basis that legal actions were taken to enforce their judgment,including bringing a separate lawsuit under the Unform Voidable Transactions Act. Plaintiffsassert they were required to initiate various post-judgment strategies to enforce the judgment andthey now seek reimbursem*nt for those fees and costs. Page 4 of 6 Code of Civil Procedure section 685.040 states “[t]he judgment creditor is entitled to thereasonable and necessary costs of enforcing a judgment. Attorney’s fees incurred in enforcinga judgment are not included in costs collectible under this title unless otherwise provided by law.Attorney’s fees incurred in enforcing a judgment are included as costs collectible under this titleif the underlying judgment includes an award of attorney’s fees to the judgment creditor pursuantto subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5.” (Emphasis added.) III. DISCUSSION Plaintiffs, in their motion, have outlined their efforts to enforce and collect on thisjudgment. Plaintiffs assert they are entitled to not only the post-judgment costs in this action butalso in a companion action they filed on March 3, 2023, and which they dismissed in 2024 aftersettlement. Plaintiffs cite G.F. Galaxy Corp. v. Johnson (2024) 100 Cal.App.5th 542 for theproposition that “[a]ttorney fees incurred in one action may be considered necessary litigationcosts in another. Further, because Code Civ. Proc., § 685.040, is not itself a substantive fee-shifting statute. It creates no independent authority for awarding attorney fees.” (G.F. GalaxyCorp., supra,100 Cal.App.5th at p. 544.) Thus, it appears plaintiffs are permitted collectattorneys’ fees based upon the second action they instituted to enforce the judgment. This actionled to a settlement, and eventual dismissal of the related action. The court agrees that fees andcosts can be collected based upon this second action as well as the post-judgment activitieswhich took place in this action. The determination of reasonable amount of attorney fees is within the sound discretion oftrial courts. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.) An experienced trial judge is in a position to assessthe value of the professional services rendered in his or her court. (Wershba v. Apple Computer,Inc. (2001) 91 Cal.App.4th 224, 255, disapproved on other grounds by Hernandez v. RestorationHardware, Inc. (2018) 4 Cal.5th 260, 270. The trial court has the discretion to award less thanthe amount of fees requested. (11382 Beach Partnership v Libaw (1999) 70 Cal.App 4th 212,220.) The court reviewed the motion, the attached declarations, and exhibits. The court notesthat it granted plaintiffs’ motion for attorneys’ fees and costs in connection with their motion forsummary judgment on February 21, 2023, and adopted the tentative ruling, which used the rateof $600/hour. The court will likewise utilize the rate of $600/hour in this motion but has notreduced the hours requested. The court awards the full amount of paralegal fees requested andwell as the work by the librarian. Page 5 of 6 i. Initial Enforcement Efforts 2.2 hours claimed by Mr. Ball @$600/hour = $1320.00. 2.2 hours claimed by Mr. Kecskes @ $600/hour = $1320.00 1.3 hours claimed by librarian Mr. Miller = $383.50 Mr. Dunbar paralegal: $1,642.50 $4,666.00 (reduced from $6,574.50) ii. Obtaining Charging Order 4.9 hours claimed by Mr. Ball @$600/hour = $2940.00 28.2 hours claimed M. Theonugraha @$600/hour = $16,920.00 Mr. Dunbar paralegal $562.50 $20,422.50 (reduced from $30,934.00) iii. Voidable Transaction Complaint 53.7 hours claimed by Mr. Ball @$600/hour = $32,220.00 Mr. Dunbar paralegal $4,680.00 $36,900.00 (reduced from $95,334.50) iv. Fees Motion 17.9 hours claimed @$600/hr by Mr. Ball =$10,740.00 (reduced from $23,001.50) Total fees granted: $72,728.50 v. Costs Costs in the amount of $3,644.84 are granted as requested. “Other costs of enforcing ajudgment to which a judgment creditor is entitled under Code Civ. Proc. § 685.040 may berecovered by noticed motion.” (California Forms of Pleading and Practice (Mathew Bender2024) § 174.253.) The total awarded is $76,373.34.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 6 of 6
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