Complaint,Petition: 1560-1568 DREXEL AVENUE LLC VS JOHANN C. DALTON

On December 21, 2020 a Complaint,Petition was filed involving a dispute between 1560-1568 Drexel Avenue Llc, and Dalton, Johann C., for Other Civil Complaint in the District Court of Miami-Dade County.

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Filing # 118515890 E-Filed 12/21/2020 08:13:49 AM

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA

1560-1568 DREXEL AVENUE, LLC,
Case No.: 2020-________________
Petitioner,
L.T. Case No.: 2020-001895-CC-24
vs.

JOHANN C. DALTON, a/k/a
YOHAN/JOHANN DALTON, APPELLATE DIVISION

Respondent.
________________________________/

PETITION FOR WRIT OF PROHIBITION

Alan Bryce Grossman, ,Esq.
Grossman Law Florida, LLC
Florida Bar No. 782084
20900 N.E. 30th Avenue
8th Floor
Tel.: 786-406-9763
Primary Email: alan@abgrossman.com
Secondary Email: GrossmanLawMiami@gmail.com

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................... iii

PRELIMINARY STATEMENT ....................................... 1

BASIS FOR INVOKING JURISDICTION OF THE COURT ............... 1

NATURE OF RELIEF SOUGHT ..................................... 2

FACTS ON WHICH PETITIONER RELIES ............................. 2

SUMMARY OF ARGUMENT ....................................... 27

ARGUMENT ..................................................... 28

I. STANDARD OF REVIEW .............................. 28

II. THE LOWER COURT COMMITTED REVERSIBLE
ERROR BY DENYING THE PLAINTIFF’S VERIFIED
MOTION FOR DISQUALIFICATION .................... 28

CONCLUSION ................................................... 32

CERTIFICATE OF SERVICE ....................................... 33

CERTIFICATE OF TYPE SIZE AND STYLE .......................... 33

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TABLE OF AUTHORITIES

Cases Page

Am. States Ins. Co. v. Kelley, 446 So.2d 1085 (Fla. 4th DCA 1984) .......... 23

Brown v. St. George Island, Ltd., 561 So. 2d 253 (Fla. 1990) ............... 27

Correll v. State 698 So.2d 522 (Fla. 1997) .............................. 28

Downs v. Moore, 801 So.2d 906 (Fla. 2001) ............................ 28

Gasparini v. Pordomingo, 972 So. 2d 1053 (Fla. 3d DCA 2008) ............ 24

In re Hillsborough Holdings Corp., 166 B.R. 461 (Bankr.M.D.Fla.1994) ..... 23

Letterese v. Brody, 965 So.2d 597 (4th DCA 2008) ....................... 28

Lipsig v. Ramlawi, 760 So.2d 170 (Fla. 3d DCA 2000) .................... 23

Livingston v. State, 441 So.2d 1084 (Fla. 1983) .......................... 28

Lowman v. Racetrac Petroleum, Inc.,
220 So. 3d 1282 (Fla. 1st DCA 2017) ......................... 29, 30

MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990) .... 28

Murphy v. Collins, 45 Fla. L. Weekly D1775 (Fla. 3d DCA July 22, 2020) .... 30

Rollins v. Baker, 683 So.2d 1138 (Fla. 5th DCA 1996) . . . . . . . . . . . . . . . . . . . . . . 1

Samra v. Bedoyan, 299 So. 3d 1138 (Fla. 3d DCA 2020) ............... 28, 30

Seminole Boatyard, Inc. v. Christoph, 715 So.2d 987 (Fla. 4th DCA 1998) .... 23

Shir Law Group, P.A. v. Carnevale,
45 Fla. L. Weekly D1575 (Fla. 3d DCA July 1, 2020) . . . . . . . . . . . . . . . . 27

St. George Island, Ltd. v. Rudd, 547 So. 2d 958 (Fla. 1st DCA 1989) ........ 27

State v. Shaw, 643 So.2d 1163 (Fla. 4th DCA 1994) ........................ 2

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Valdes-Fauli v. Valdes-Fauli, 903 So.2d 214 (Fla. 3rd DCA 2005) ........... 31

Other Authorities

Article V, Section 4(b)(3), Florida Constitution ........................... 2

Canon 3E(1), Florida Code of Judicial Conduct, ......................... 30

Chapter 83, Florida Statutes ......................................... 12

Section 38.10, Florida Statutes .................................... 28, 29

Section 83.60(2), Florida Statutes ..................................... 25

Rule, 2.330(f), Florida Rules of Civil Procedure ................. 2, 28, 29, 32

Rule 9.030(b)(3), Florida Rules of Appellate Procedure .................... 1

PRELIMINARY STATEMENT

The Petitioner here is the Plaintiff below and is hereinafter referred to as

“Plaintiff”. The Respondent is the Defendant below and is referred to herein as the

“Defendant.”

References to the record of the Lower Court shall be designated by reference

to the Appendix, by document exhibit label or page number, as “App. __”.

BASIS FOR INVOKING JURISDICTION OF THE COURT

Following the Lower Court’s denial of the Petitioner’s Motion for

Disqualification, the Petitioner immediately (within two days) filed this Petition.

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This Court has jurisdiction to issue a writ of prohibition under Article V,

Section 4(b)(3), Florida Constitution, and Rule 9.030(b)(3) of the Florida Rules of

Appellate Procedure. Prohibition is the proper remedy to test the validity of the

denial of a motion for disqualification of a judge. Rollins v. Baker, 683 So.2d 1138

(Fla. 5th DCA 1996); State v. Shaw, 643 So.2d 1163 (Fla. 4th DCA 1994).

This Petition for Writ of Prohibition is timely filed.

NATURE OF RELIEF SOUGHT

This is the petition of the Plaintiff for this Court to reverse the Lower Court’s

Order denying the Plaintiff’s Verified Motion to Disqualify, as entered by the Lower

Court on December 16, 2020, for this Court to issue its Writ of Prohibition directing

the Judge of the Lower Court, the Honorable Stephanie Silver, to issue an Order of

Disqualification and transfer the action to another Judge of the County Court pursuant

to Rule 2.330(f), Fla. R. Civ. P.

As a result of the Lower Court’s demonstrated bias, refusal to act as a neutral

arbiter, and failure to apply the essential requirements of the law, the Petitioner faces

irreparable harm, and, therefore, respectfully requests that the Court grant the relief

requested herein.

FACTS ON WHICH PETITIONER RELIES

The action before the Lower Court commenced with the filing by the Plaintiff

as the Landlord of the Complaint (App. 001-025) for eviction for non-payment of

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rent, damages, and possession based on termination of the parties’ lease agreement,

related to the subject residential real property in which the Defendant currently

resides and has resided for the past nine months without paying rent to the Plaintiff

or to the registry of the Lower Court.

This action has been contentious, beginning with the fact that the Defendant

has not paid rent to the Plaintiff since April, 2020. Appendix Page 087. Rent is due

at the rate of $1,500.00 per month. Appendix Page 159. However, the Defendant

claims that he lost his job due to COVID-19. From the time that the Governor issued

his executive Orders preventing eviction actions throughout the State, the Lower

Court has honored those Orders and the Defendant has remained in occupancy of the

subject residential apartment continuously to the present, even with the expiration of

the last of the Governor’s Orders as of September 30, 2020.

The saga of the current matter begins with the interruption of the electrical

service to the subject unit which the parties, along with the Lower Court, ultimately

learned was due to a faulty fuse, which may have been as old as the age of the subject

building: 65 years. App. 266. However, until the electrician who investigated the

electrical outage and performed the repair was able to determine the cause of the

interruption, and then later reported to the Court by testimony at a later hearing,

neither party, and of course not the Lower Court, had any information as to the cause

of the electrical interruption. App. 104; Transcript Page 79, Lines 17-19.

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The lack of any information as to why the electricity to the Defendant’s unit

was interrupted did not stop by the Defendant from filing his Verified Emergency

Motion for Injunctive Relief to Restore and Maintain Electricity to the Unit (App.

167-172; hereinafter, “Motion for Injunction”). While there are other extraneous

matters as discussed in the Motion for Injunction, the essence of that motion was the

Defendant’s contention that electricity to the unit was “shut off,” but without

providing a single statement of fact to support the clear implication that the Plaintiff

“shut off” the electricity.

The Defendant confirmed his unfounded belief, by stating at paragraph 23 of

the Motion for Injunction that the “Plaintiff’s act of shutting off the electricity....”

App. 170. Then in his prayer for relief, in addition to requesting that the Lower Court

require the Plaintiff to restore the electricity, the Plaintiff further requested that the

Lower Court “declare that the Plaintiff has violated” a prior Order of the Lower Court

and enter “substantial sanctions.” That prior Order, entered on August 18, 2020, as

it relates to the subsequent Motion for Injunction and the issue with the electricity,

provides only the single statement by the Lower Court which prohibited the Plaintiff

from “...terminating ... a utility service ... or engaging in any other act prohibit by Fla.

Stat. 83.67” (italics added). App. 173-176. By the prior Order, the Lower Court

prohibited direct acts of the Plaintiff, being, of course, unrelated to mechanical

failures such as the blown fuse.

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The Plaintiff filed its “Verified Response in Opposition to Defendant’s

Emergency Motion for Injunctive Relief to Restore and Maintain Electricity to the

Unit (“Plaintiff’s Response”; App. 177-184). The highlights of the facts submitted

to the Lower Court in the Plaintiff’s Response are:

A. “2. Due to the fact that the Tenant has not paid rent since April, the

Landlord does not have any funds to carry out such work. The

Landlord is working to borrow funds for the cost of investigation

and repair, but as of the time of this Response has not identified

a proper source of funds for this purpose.”

B. “5. Neither the Landlord, nor anyone acting for the Landlord, cut off

the electrical service to the premises, nor in any way caused the

electrical system of the property to be inoperable. At the time of

this writing the Landlord does not know what caused the

electricity to be shut off nor what is needed to repair and restore

the electrical service.”

App. 177-178.

With the parties’ position set in their filed pleadings, the Lower Court then held

an evidentiary hearing on the Motion for Injunction on October 2, 2020. During that

evidentiary hearing, it became abundantly clear that the Defendant had absolutely no

knowledge as to what caused the electricity to be interrupted.

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The hearing proceeded with testimony by the Defendant, followed by testimony

from the representative of the Plaintiff, Raz Ofer (“Mr. Ofer”). A central issue that

was then before the Lower Court was to determine the cause of the electrical

interruption. To that end, the Defendant was clear in his testimony that he had

absolutely no idea as to why the electricity stopped working.

Q: [S]o you don’t know what caused the power to be shut off, right?

A. I know that it wasn’t FPL.

Q. Okay. So you don’t know what it was, what caused the power to go off?

A. I can only assume.

Q. Well, I’m not asking you to assume. I’m asking what you know. You

don’t know what caused the power to go off, right?

A. I mean, I do.

Q. You don’t - - you know.

A. I believe it was Raz Ofer that shut it off.

Q. What you know. Did you see Mr. Ofer - - did you see Robert - -

A. No, I didn’t see Robert do it either. So, like, I have no witnesses - -

nobody that witnessed anybody do it. I don’t know where the box is or

who has access to it.

Transcript, page 28, line 25, through page 29, line 17.

Then later in the hearing, the Plaintiff’s representative provided clear, direct

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testimony that neither he, nor anybody that worked for the Plaintiff had anything to

do with the electricity stopping, supporting the position as presented in the Plaintiff’s

Response.

Q. Mr. Ofer, did you cause the power to be disconnected?

A. Nonsense.

Q. Did you ask anyone to do that?

A. Nonsense.

Q. Did you tell anybody to go out there and disconnect the power?

A. Nonsense.

Q. Did you ask - - did you or anybody that works for you or at your

direction do anything to inhibit the electricity from being passed through

from FPL to the units?

A. Nonsense. This is not the first time that the problems such as this

happens. It requires an electrician to go and fix it. This is an old

building that requires major investment.

Transcript, page 39, line 9 - 24.

There was no further relevant information as provided to the Lower Court as

to the reason that the electricity stopped working. This lack of understanding as to

this basic, important fact was then clearly acknowledged by the Lower Court.

THE COURT: Number one, whoever turned off the power, I’m not sure....

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There’s clearly a problem with power to the this unit. Whether Mr. Ofer turned

it off or not, you’re right, there is no witness that saw him do it.

Transcript, page 66, lines 12-21.

The hearing included, of course, arguments from counsel for the parties, and

lasted 1 hour and 40 minutes, including the oral ruling of the Lower Court (see the

Transcript, page 66, line 12, through page 69, line 4). The essence of the Lower

Court’s ruling stated late on Friday afternoon, October 2, 2020, was stated as “this

Court ... is going to order that the power be restored and that an electrician appear on

the property tonight, by tomorrow. Anything after tomorrow, it will be a one-

thousand-dollar-a-day sanction that will be put into the Court registry.” See the

Transcript, page 68, lines 16-20.

The Lower Court then entered its written Order Granting Defendant’s Second

Motion for Injunctive Relief (“Injunction”) following the hearing, on October 4,

2020. App. 185-191. The Injunction required the Landlord to “have the power

turned on at the residence at issue in this lawsuit by Saturday, October 3, 2020.”

App. 190.

The Injunction also stated that the Landlord is “required to pay sanctions of

$1,000 for each full day of noncompliance. These funds must be posted each day into

the court registry. The funds must be deposited, plus any applicable court registry

fee, via money order, cashier’s check, or cash. If power is restored, the parties are

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directed to notify the Court. If power has not been restored by Monday, October 5,

2020, the Plaintiff is directed to deposit $3,000 plus any fee into the Court Registry

to cover Saturday, October 3, 2020, and Sunday October 4, 2020, and Monday,

October 5, 2020” (underline added). App. 190.

The Lower Court made no finding that the Plaintiff had the ability to properly

repair the electrical service within one day, that being Saturday, nor even what was

required to render the electrical system as operable. No evidence was presented on

these issues.

There was also absolutely no evidence whatsoever as presented to the Lower

Court as to the Plaintiff’s ability to pay even $1,000.000 - a single day’s delay in

restoring the electricity – not to mention an amount that would multiply the single day

sanction should the restoration of the electricity take more time.

As it turned out, it took the total of 11 days for the electricity to be restored.

App. 192-193. By such time duration, the Lower Court confirmed in its Amended

Order, that the amount of the sanction as to be paid by the Plaintiff was in the amount

of $11,000.00 (by the sanction amount of $1,000.00 per day starting on October 4,

2020, instead of October 3, 2020). App. 194-195. This Amended Order was issued

by the Lower Court sua sponte and, as before, made no mention of any finding by the

Lower Court of the Plaintiff’s ability to pay that amount would equate to the Plaintiff.

What did transpire, as to the Lower Court’s determination that the Plaintiff

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would – and could – pay the $11,000.00 sanction amount was the Lower Court’s

continuous and unsubstantiated determination that because the Plaintiff’s managing

member, Mr. Ofer, is a person of substantial financial means, that such financial

ability to pay the Plaintiff’s sanction amount.

This crucial issue as to the Plaintiff’s inability to pay the sanction amount,

including the absence of any finding by the Lower Court that such ability existed,

began during the evidentiary hearing on the Defendant’s Injunction Motion held on

October 2, 2020. Initially, when asked about the electrical interruption, Mr. Ofer

testified as follows:

Q. Did he or did you or someone call an electrician for this?

A. No. The building needs money. [1560] is an independent entity and the

company needs money to call in an electrician. The electrician needs to be

paid.

App. 623-624, Transcript Page 37, Line 22 to Page 38, Line 1.

Then when questioned further regarding the Plaintiff’s general financial status,

Mr. Ofer testified as follows:

Q. How much money does the plaintiff, 1560-1568 Drexel Avenue, how much

money does it have right now?

A. Whenever it needs to pay some bills, I transfer it. I transfer money.

Q. And what is its source of income?

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A. The source of income is land and also tenants in the building. I believe the

building is fully occupied now. But a lot of people in the building, they don’t pay the

rent, and I am happy to subsidize it because I trust them. And I have no problem.

App. 624; Transcript Page 28, Line 14-24.

As to the use of his personal funds to assist the Plaintiff in it’s financial needs,

Mr. Ofer testified, “But no one consults me loaning money to the company. If I want,

I will do it. And if I don't want, I will not do it.” App. 628; Transcript Page 42, Line

21-23.

Then, going directly to the point of the Plaintiff’s lack of funds, the following

occurred.

Q. Does the corporate entity, 1560-1568 Drexel Avenue LLC have any funds

in the bank right now to pay an electrical inspection?

****

A. No, it doesn’t -- it doesn’t have funds.

App. 631; Transcript Page 45, Lines 6-10.

Review of the entire transcript of the hearing on October 2, 2020, will show

that there is no evidence of any kind as presented by the Defendant that disputes the

Plaintiff’s evidence that it has no funds.

The Lower Court ignored the clear testimony of Mr. Ofer that the Plaintiff is

struggling financially to operate it’s business, with no funds. Instead, the Lower

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Court improperly imputed Mr. Ofer’s financial status onto the Plaintiff. At paragraph

16 of the Injunction Order, the Lower Court ruled that “[t]he Plaintiff’s representative

testified that he does not have adequate funds to pay for an electrician to visit the

apartment building. This Court rejects that argument for several reasons.” App. 191.

The “several reasons” relate to Mr. Ofer using some of his own funds to assist the

Plaintiff in installing new air conditioners at the cost of $3,000.00, and other

unspecified testimony of Mr. Ofer. The Lower Court then added a further reason,

stating that “coupled with the attorneys’ fees this corporation is paying for this

litigation.” App. 191. It is highly questionable as to this last point by the Lower

Court as there was the complete absence of any evidence as to whether, or how, the

Plaintiff is paying its attorney for the litigation.

For purposes if this Petition, it is important to note that the above comment of

the Lower Court emphasized the funds of Mr. Ofer, yet saying nothing at all

regarding the Plaintiff’s funds, or lack thereof.

Of course, the previous tale sets the factual background for the current Petition.

The facts then continue to December 8, 2020, the time of the hearing on the

Defendant’s Motion to Dismiss that was filed on October 20, 2020. App. 196-203.

The Motion to Dismiss presented various reasons for the Lower Court to dismiss the

Plaintiff’s claims, related primarily to the above situation regarding the electrical

interruption, the sanction amount imposed on the Plaintiff, and other matters. The

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discussion below is isolated on the sanction amount of $11,000.00 as imposed on the

Plaintiff as described above.

The Plaintiff opposed the Defendant’s Motion to Dismiss with the filing of its

Response in Opposition to Defendant’s Motion to Dismiss Complaint (App. 204-

316), filed on November 20, 2020. The Plaintiff’s arguments opposing the issues

regarding the electrical interruption and the $11,000 sanction amount include a

lengthy discussion of Florida law which should have prevented the Lower Court from

considering, and in fact imputing, the financial ability of Mr. Ofer to the requirement

of the Plaintiff to pay the sanction amount. See App. 221-224.

To back up a bit, shortly prior to the November 30th hearing date, the Plaintiff

filed its Motion to Vacate Order (App. 317-374), which referenced Mr. Ofer’s

Affidavit (App. 335-338). By the Motion to Vacate Order, the Plaintiff explained the

determined cause of the electrical interruption as resulting from the faulty fuse, and

requested that the Lower Court vacate the Injunction Order on the basis that the

Plaintiff did not cause the interruption of the electricity to the unit, and by that proven

fact, did not violate the Court’s prior Order (which prohibited the Plaintiff from

causing the electricity to be terminated). The second basis for the request to vacate

the prior Order related to the inability of the Plaintiff to pay the sanction amount,

including the failure of the Lower Court to properly apply the law when the Lower

Court improperly used Mr. Ofer’s financial status as the basis to impose the fine on

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the Plaintiff. Because the Plaintiff timely filed its Notice of Appeal of the Injunction

Order to this Court (under case number 2020-000202-AP-01) the Lower Court has

not ruled, nor set a hearing, on the Motion to Vacate Order.

The Plaintiff’s electrician testified during the hearing on November 30th that

he investigated the property, including crawling underneath the building, and

determined that the cause of the electricity being interrupted was due to a faulty fuse.

The electrician replaced the fuse, which restored the electricity. App. 107-111.

Following additional testimony as to other unrelated matters, the Court then

addressed the Motion to Require Payment of Rent to Registry (“Rent Motion”; App.

375-393) that had been filed by the Plaintiff on October 22, 2020. Regarding the

Rent Motion, the discussion led by the Lower Court related to the amount of rent that

the Plaintiff contended that was due from the Defendant. From the discussion, the

parties reached agreement that the amount of rent due through November 30, 2020

(the date of the hearing) was $12,000.00. App. 134.

The single ruling as issued from the hearing was the Lower Court’s ruling as

to the application of the CDC Order, “that persons may still be evicted for reasons

other than not paying rent or making a housing payment in conjunction with 83.60.

This court finds that the CDC moratorium does not exist.” App. 164; Transcript Page

136, Lines 19-23. That ruling was later reduced to writing by the Lower Court. “This

Court determined that the Center for Disease Control Moratorium was not applicable

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in this case.” App. 694-695. The Lower Court stated, “I find for the reasons that I

have stated before that the CDC moratorium does not apply” and The Lower Court

also expressly did not rule as to how much, if any amount, that the Defendant would

have to pay to the court registry as requested by the Rent Motion. App. 164;

Transcript Page 136, Lines 5-10. “Now we are not getting into any rent

determination. We are not doing any of that today.... What still needs to be put into

the court

registry if any needs to be determined at a later time.”

With all that transpired during the November 30th hearing, the Lower Court ran

out of time. The continuation of the hearing, including both the Rent Motion and the

Defendant’s Motion to Dismiss, was then set for December 8, 2020.

However, imbedded during the hearing on November 30th, is a pertinent,

crucial event that related to the Lower Court and the Plaintiff. On the Lower Court’s

own volition, and not prompted by either party, the Lower Court asked the Plaintiff’s

counsel if the Plaintiff was a plaintiff in any other action. The following soliloquy

occurred:

THE COURT: So 1860 1560 to 1568 Drexel Avenue is not
a plaintiff in anything else?
MR. GROSSMAN: I don’t know.
THE COURT: Okay. If this court were to look, would you
have any objection, Mr. Grossman?
MR. GROSSMAN: No. If it is there, it is there. I have no

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idea.
THE COURT: Okay. I understand that it’s public record.
I am asking whether you have an objection. Okay all right.
Lets continue on.

App. 072; Transcript Page 44, Lines 9 - 23.

Then what happened at the hearing on December 8th by the Lower Court

demonstrated to the Plaintiff that the Lower Court was biased against the Plaintiff.

This bias had been previously demonstrated by the Lower Court, resulting in two

prior Motions to Disqualify (App. 307-400 and 401-407), both of which were

summarily denied by the Lower Court. However, this third iteration of the blatant

bias or prejudice by the Lower Court as to the Plaintiff cannot be denied by any

objective observer, including this Court, based on the underlying facts as laid out in

detail above, the Lower Court’s unprompted decision to investigate the Plaintiff of

her own volition, and the Lower Court’s conduct during the hearing on December 8th.

The Defendant has never alleged any claim intended to claim that Mr. Ofer is

the alter ego of the Plaintiff. Yet, on her own, the Lower Court made the improper

determination that Mr. Ofer’s personal finances even without any alter ego. In

addition, Mr. Ofer presented his email as an exhibit to the Verified Motion to

Disqualify as directed to the Lower Court (App. 423-429) to state in great detail the

many ways that the Plaintiff perceives that due to the bias and prejudice of the Lower

16
Court that the Plaintiff cannot receive a fair hearing.

Rather than having to re-write the proper basis by the Plaintiff for the Lower

Court to disqualify herself from the action, which is the direct subject of this Petition

for Writ of Prohibition, the contents of the subject Verified Motion to Disqualify,

which is the subject of this Petition, are set out below. App. 405-532.

b. Then at the continuation hearing on the Motion to

Dismiss on December 8, 2020, the Judge reminded the parties of the

foregoing conversation and proceeded to inform the parties that the

Judge had, in fact, searched through the court records and located

another action that involved [the Plaintiff]. That action was identified

by the Judge as the case in Miami-Dade County Circuit Court, titled

Opustone, LLC, Plaintiff, v. Raziel Ofer, 1560/1568 Drexel Avenue,

LLC (the Plaintiff in the instant action), 1434 Collins Avenue, LLC, and

RO1 15R, LLC, Defendants, under case number 2019-009489-CA-01

(said case is hereinafter referred to as the “Opustone Action”). In the

Opustone Action, [the Plaintiff] is a defendant, and not a plaintiff, as

was the specific question posed by the Judge.1 Because the lack of

1
The following is the exact transcript of the above summarized dialog, at page 44, lines
9 - 23, of the Transcript from the hearing on November 30, 2020:
THE COURT: So 1860 1560 to 1568 Drexel Avenue is not a plaintiff in anything else?
MR. GROSSMAN: I don’t know.
THE COURT: Okay. If this court were to look, would you have any objection, Mr. Grossman?
MR. GROSSMAN: No. If it is there, it is there. I have no idea.

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objection by [the Plaintiff] to the Judge searching the court records to

see if [the Plaintiff] was a plaintiff in any other case, the Judge should

not have reviewed any aspect of the Opustone Action where [the

Plaintiff] was a defendant. No such consent was given to review such

cases.

c. The Judge continued to discuss the Opustone Action

during the December 8th hearing by referencing an affidavit that was

filed by the defendants in the Opustone Action. That referenced

affidavit is the “Affidavit of Raz Ofer”, who is [the Plaintiff]’s

representative here, that was filed in the Opustone Action on January 4,

2020, and attached hereto as Exhibit “B” [App. 533-537.]. The

Affidavit of Raz Ofer is an affidavit of Mr. Ofer, individually, as Mr.

Ofer was individually a defendant in the Opustone Action. Mr. Ofer is,

notably, not a party to the instant action.

d. The Judge then specifically referenced paragraph 22

of the Affidavit of Raz Ofer, by which Mr. Ofer personally stated in full

as follows:

“22. As to the bank records, I provided the main

THE COURT: Okay. I understand that it's public record. I am asking whether you have an
objection. Okay all right. Lets continue on.

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funds account for my affairs which are linked to all
my accounts and when issue checks, I transfer funds
from this account to the account the check is issued
from. The balance in this account never fell below
$450,000.00. In addition, I maintain substantial
balances in other accounts at other banks.”

App. 539.

e. The Judge then commented that based on the above

paragraph 22, in essence if not in exact words (the transcript of the

hearing on December 8, 2020, is not available as of this writing), that

the financial status of Mr. Ofer is the same as the financial status of [the

Plaintiff], and that the Court would not further consider [the Plaintiff]’s

contention that [the Plaintiff] did not have the funds to pay for the

imposed fine of $11,000.00.

f. This comment of the Judge relates directly to [the

Plaintiff]’s pending appeal of the prior entered Order Granting

Defendant’s Second Emergency Motion for Injunctive Relief

(“Sanctions Order”; Exhibit “C” hereto), as well as the filed Motion to

Vacate Order, the decision of which is waiting for the results of the

appeal of the Sanctions Order. A copy of the Motion to Vacate Order,

absent exhibits, is attached hereto as Exhibit “D”.

g. The comment of the Judge also follows directly from

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a similar comment regarding Mr. Ofer’s funds as to [the Plaintiff]’s

financial status as made by the Judge during the hearing on November

30, 2020, on the Defendant’s Motion to Dismiss. During the hearing, as

related to [the Plaintiff]’s financial inability to pay the imposed

$11,000.00 fine, the Judge stated the following comment: “I think it

also essentially renders the whole thing that the corporation [[the

Plaintiff]] doesn’t have the money. I think he [Mr. Ofer] renders the

whole motion moot.” Transcript, at page 33, lines 12-15; Exhibit “E”

hereto [App. 031]. Here, the use by the Judge of the word “motion”

means the pending Motion to Vacate Order. The context, while unclear,

is undisputed to relate to [the Plaintiff]’s financial ability to pay the

$11,000.00 fine. This conclusion by the Judge flowed directly from the

argument of the Defendant’s attorney who referenced paragraph 14 of

Case Info

Case No.

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Document Filed Date

December 21, 2020

Case Filing Date

December 21, 2020

County

Parties

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