Motion for Leave to File a Cross-Complaint in QORUM, INC. VS. QAPROSOFT, LLC ET AL| Trellis.Law

On July 29, 2019 a Order was filed involving a dispute between Qaprosoft, Llc, Solvd, Inc., Qorum, Inc., and Does 1 Through 50, Inclusive, Lysenko, Igor, Qaprosoft, Llc, Solvd, Inc., Vayner, Igor, for CONTRACT/WARRANTY in the District Court of San Francisco County.

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1 Wendy M. Thomas (SBN 268695)
Andrew P. Danza (SBN 326084)
2 MARKUN ZUSMAN FRENIERE & COMPTON LLP ELECTRONICALLY
3 17383 Sunset Blvd, Suite A380 F I L E D
Pacific Palisades, CA 90272 Superior Court of California,
County of San Francisco
4 T: (310) 454-5900
F: (310) 454-5970 12/23/2019
5 E: wthomas@mzclaw.com Clerk of the Court
BY: KALENE APOLONIO
E: adanza@mzclaw.com Deputy Clerk
6
Attorneys for Defendants and Cross-Complainants
7 QaProsoft, LLC, and Solvd, Inc., and Defendants
Igor Lysenko and Igor Vayner
8

9 SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 COUNTY OF SAN FRANCISCO

11 Case No. CGC-19-577985
QORUM, INC.,
12
CROSS-COMPLAINANTS QAPROSOFT,
Plaintiff, LLC’S AND SOLVD, INC’S FIRST
13
v. AMENDED CROSS-COMPLAINT FOR:
14 (1) BREACH OF CONTRACT;
QAPROSOFT, LLC; SOLVD, INC.; IGOR (2) OPEN BOOK ACCOUNT;
15 LYSENKO; IGOR VAYNER; and DOES 1
THROUGH 50, INCLULSIVE, (3) ACCOUNT STATED;
(4) QUANTUM MERUIT;
16
Defendants. (5) INVASION OF PRIVACY ACT – CAL.
17 P.C. § 630, ET SEQ.;
(6) FALSE PROMISE;
18 (7) UNFAIR BUSINESS PRACTICES
19 Complaint Filed: July 29, 2019
Trial Date: None Set
20

21 QAPROSOFT, LLC, a California limited liability
company; SOLVD, INC., a Nevada corporation,
22
Cross-Complainants,
23 v.
24 QORUM, INC., a Delaware corporation;
ANDREW PIETRA, an individual; and ROES 1
25 THROUGH 20, INCLUSIVE,
26 Cross-Defendants.
27

1
FIRST AMENDED CROSS-COMPLAINT
1 Cross-Complainants QaProsoft LLC, a California limited liability company, and Solvd, Inc.,
2 a Nevada corporation, complain, allege, and aver as follows:
3 PARTIES
4 1. Cross-Complainant QaProsoft LLC (“QaProsoft”) is a California limited liability company
5 located at 970 Reserve Drive, Suite # 205, Roseville, California, 95678, in the County of Placer.
6 2. Cross-Complainant Solvd, Inc. (“Solvd”) is a Nevada corporation located at 970 Reserve
7 Drive, Suite # 205, Roseville, California, 95678, in the County of Placer. As is set forth in greater
8 detail below at Paragraph 13, Solvd is the successor-in-interest to QaProsoft. Collectively,
9 QaProsoft and Solvd are referred to herein as “Cross-Complainants.”
10 3. Cross-Defendant Qorum, Inc. (“Qorum”) is a corporation incorporated under the laws of
11 Delaware and has its principal place of business at 100 Pine Street, Suite 1250, San Francisco,
12 California, 94111.
13 4. Cross-Defendant Andrew Pietra (“Pietra”) is an individual resident of the State of California
14 and, at all material times hereto, was the Chief Executive Officer of Qorum. (Collectively, Qorum
15 and Pietra are referred to as the “Cross-Defendants.”)
16 5. The true names and capacities, whether individual, corporate, associate or otherwise, of the
17 Cross-Defendants sued herein as Roes 1-20, inclusive, are unknown to Cross-Complainant who
18 therefore sues such Roe Cross-Defendants by fictitious names. Cross-Complainant will amend this
19 Cross-Complaint to allege their true names and capacities when they have been ascertained. Cross-
20 Complainant is informed and believes, and thereon alleges, that each of the fictitiously named Roe
21 Cross-Defendants was responsible in some manner for the occurrences herein alleged and that
22 Cross-Complainant’s damages were proximately caused by each such Roe Cross-Defendant’s
23 conduct. References to “Roe Cross-Defendants” shall mean and include those Roe Cross-
24 Defendants sued herein by such fictitious names.
25 JURISDICTION AND VENUE
26 6. This Court has subject matter jurisdiction pursuant to California Constitution Article VI,
27 section 5 and personal jurisdiction over Cross-Defendant in accordance with Code of Civil
28

1
FIRST AMENDED CROSS-COMPLAINT
1 Procedure section 410.10 on the grounds that a substantial portion of the actions and events giving
2 rise to this complaint occurred in San Francisco, California, and, in addition, the Cross-Defendant’s
3 principal place of business is in the County of San Francisco, State of California. In addition, the
4 Court’s jurisdiction is appropriate because Cross-Defendant filed the instant action in this Court
5 and, by doing so, has consented to the Court’s jurisdiction not only to resolve its own claims, but
6 also to resolve any cross-claims that may be brought against the Cross-Defendant by the Cross-
7 Complainant. Sea Foods Co. Ltd. v. O.M. Foods Co., (2007) 150 Cal.App.4th 769, 786; Macri v.
8 Carson Tahoe Hospital, Inc., (1966) 247 Cal.App.2d 63, 65.
9 7. Venue is proper before this Court insofar as a substantial part of the actions giving rise to
10 the claims alleged herein occurred in San Francisco, California. Venue is also appropriate because
11 Qorum’s principal place of business is in San Francisco, California. Cal. Civ. Proc. § 395.5.
12 Allegations Relevant to All Causes of Action
13 8. On or about February 16, 2017, Cross-Complainant and Cross-Cross-Defendant Qorum
14 entered into a Service Provider Agreement (“Agreement”). A true and correct copy of the
15 Agreement is attached hereto as Exhibit 1.
16 9. Pursuant to the Agreement, QaProsoft agreed to render certain iOS, Android and backend
17 software development services to Qorum. Of note, the Agreement provided as follows:
18
This provision allocates the risks under this Agreement between Service Provider
19 and Client. Service Provider’s pricing reflects the allocation of risk and limitation of
liability specified below. Service Provider’s total liability to Client under this
20 Agreement for damages, costs, and expenses will not exceed the compensation
received by Service Provider under this Agreement. (Exhibit 1, Agreement, ¶ 11)
21
10. The Agreement did not include a fixed budget, nor did it include a specific timetable for
22
completing the work contemplated by the Agreement.
23
11. After entering into the Agreement, QaProsoft commenced providing services to Qorum.
24
Every month, Cross-Complainants generated an invoice to Qorum for its work and each invoice was
25
accompanied by a detailed timesheet. The timesheets were broken down by team member, and for
26
each team member, the timesheets list a description of each and every service provided by each team
27
member, the date(s) on which the services were provided, and the time it took to render each service.
28

2
FIRST AMENDED CROSS-COMPLAINT
1 12. Cross-Complainants performed services to Cross-Defendants for over two years. During that
2 time period, Cross-Defendants requested new matters be added to the scope of work to be performed
3 by Cross-Complainants and Cross-Complainants performed this work. In this regard, it was a time
4 and material (T&M) agreement, pursuant to which the parties agreed to unit rates for the hours of
5 work to be performed by the various categories of specialist/engineer with the full value of the work
6 to be performed not being defined at the time the Agreement is entered. Cross-Defendants approved
7 of and paid at least twenty-two (22) of these monthly invoices (which, as set forth above, were
8 supported by detailed timesheets).
9 13. QaProsoft performed under this time and material agreement until early 2019. In early 2019,
10 QaProsoft went through a restructuring/rebranding process pursuant to which QaProsoft assigned to
11 Solvd its contract with Qorum. However, the same personnel continued to provide services to
12 Qorum after the restructuring as before and there was no interruption in service to Qorum in
13 connection with the restructuring/rebranding. Neither the original Agreement the parties signed, nor
14 any of the subsequent scope of work requests that Cross-Defendants added to the scope of work to
15 be performed, included a provision prohibiting assignment. Further, QaProsoft informed Cross-
16 Defendants of this restructuring/rebranding process and gave Cross-Defendants notice that Solvd
17 would be performing services for Qorum’s from that point forward. Thereafter, Solvd performed on
18 the time and materials contract until July 2019.
19 14. Qorum management fully controlled the scope of work and acknowledged cumulative
20 project costs by approving segments of work to be performed by Cross-Complainants. Cross-
21 Complainants were transparent about the associated cost, particularly to Qorum management,
22 communicating with Cross-Defendants in voice telephone calls, Jira ticket updates, timesheet
23 updates, daily status meeting notes and responding to requests for information. Here is an example
24 of the type of communication Cross-Complainants would sent to Qorum management. On April 4,
25 2018, an agent of of Cross-Complainants wrote to Cross-Defendant Pietra as follows:
26
Hey Andrew,
27 Please note that March invoice is higher due to approved items:
1). Design iOS, android and Admin Panel
28 2). Implementation of Admin Panel

3
FIRST AMENDED CROSS-COMPLAINT
1 Please review QaProSoft March 2018 Invoice. We have 4 outstanding invoices -> Jan,
Feb, Mar. account name, Qaprosoft LLC
2 15. During the two years that Cross-Complainants provided services to Qorum, Cross-
3 Defendants did not complain about (1) which specific engineers were working on the project; (2)
4 the quality of Cross-Complainants’ work being unacceptable; or (3) the amount of money being
5 paid by Cross-Defendants as exceeding the amount set forth in QaProsoft’s initial estimates and
6 therefore as being violative of the parties contract. There was substantial complexity to the work
7 being performed and a variety of facts were totally out of Cross-Complainants’ control. For
8 example, Cross-Complainants were dependent upon third-party integration but Cross-Complainants
9 did not control third-party integration issues. Cross-Defendants did not attempt to terminate the
10 project during those first two years that Cross-Complainants worked on the project. Despite
11 Qorum’s current allegation that itwould not have entered into the Agreement absent the regular
12 involvement of Igor Lysenko, Igor Lysenko did not bill time on any of the twenty-two (22)
13 timesheets that supported Cross-Complainants’ monthly invoices, but Cross-Defendants did not
14 complain that they had expected Igor Lysenko to be working on the project. Cross-Defendants did
15 not ask to replace the backend team members with Igor Lysenko.
16 16. In fact, much of the general feedback that Cross-Defendants provided to QaProsoft was
17 positive. For example, on November 22, 2018, Cross-Defendant Pietra wrote to QaProsoft
18 employees as follows:
19
Thank you all, you’ve been doing an awesome job, and Morgan and I couldn’t be happier with
20 the work you’re doing and the rhythm we’ve developed in the past several months.
It makes me very happy to know we have a dedicated team of people committed to Qorum’s
21 success!
22 Cheers,
Andrew
23
17. On December 6, 2018, Morgan Samson, another Qorum employee, wrote to Cross-
24
Complainants as follows:
25
Honestly, I’ve had such a great time working with your team and want to make sure the hand-
26 off is successful. In fact, I’ve had such a fun time working so closely with Tanya and the QAPro
devs that it reminded me of my personal goals to code and build. I’m focusing on web
27 development first then moving to IoT and hardware!
28

4
FIRST AMENDED CROSS-COMPLAINT
1 18. In fact, Cross-Defendant Pietra offered to reward Cross-Complainants’ employees for their
2 excellent work by giving Cross-Complainants equity in Qorum.
3 19. Qorum, on the other hand, did fall behind in payment. At one point in time during 2018,
4 Qorum fell behind in payment by several months but eventually caught up to its payments.
5 20. Qorum fell behind in its payments again starting in January 2019. However, Cross-
6 Defendants assued Cross-Complainants that Cross-Defendants would pay late invoices once Cross-
7 Defendants obtained additional capital and/or when the application was up and running. For
8 example, on March 20, 2019, Cross-Defendant Pietra wrote to Defendant Igor Vayner as follows:
9 “I have made it tremendously clear that you will get paid when you deliver on the promises you
10 made to have it up and running.”
11 21. Because Qorum had previously fallen behind in payments but then brought its account with
12 Cross-Complainants’ current, combined with the fact that Cross-Defendants assured Cross-
13 Complainants that payment was forthcoming, Cross-Complainants continued to work on the project.
14 22. However, over time, Qorum fell substantially behind in payment, failing to pay invoices in
15 connection with the following months’ work:
16

17 Date Invoice Time Period Covered by Amount of Invoice
18 Issued Invoice
19 February 8, 2019 January 2019 $51,726
20 March 17, 2019 February 2019 $54,917
21 April 1, 2019 March 2019 $62,736
22 May 1, 2019 April 2019 $64,992
23 June 1, 2019 May 2019 $53,803
24 July 1, 2019 June 2019 $41,418
25
July 24, 2019 July 2019 $19,118
26
TOTAL UNPAID INVOICES $348,710
27
23. Naturally, Qorum’s failure to timely pay its invoices caused great concern to Cross-
28

5
FIRST AMENDED CROSS-COMPLAINT
1 Complainants. However, Cross-Defendants’ promised payment in full if Cross-Complainants would
2 perform more work on the project. Cross-Defendants intentionally induced Cross-Complainants to
3 continue work even after Qorum was delinquent on payments, with promises of imminent full
4 payment, and even offers of equity grants in Qorum if Cross-Complainants would continue to work
5 on the project.
6 24. Cross-Complainants reasonably relied on these promises and misrepresentations. After all,
7 in 2018, Qorum had fallen behind in payments and then eventually did make payment in full once
8 it obtained another round of financing. Thus, Cross-Complainants reasonably believed that, just as
9 Qorum had eventually made good on its promises in 2018, it would do the same here. As it turned
10 out, Cross-Defendants’ representations regarding payment being forthcoming were untrue.
11 25. On information and belief, Cross-Defendants were not planning on paying the monies they
12 owed Cross-Complainants. On information and belief, Cross-Defendants were promising to pay
13 Cross-Complainants in order to obtain a completed product from Cross-Complainants, without any
14 intention of ever paying Cross-Complainants for their work.
15 26. On or about May 6, 2019, agents of Qorum surreptitiously recorded a call without the
16 consent of QaProsoft or its employees. The call was between Justin Mahon, a QaProsoft project
17 coordinator located in California, who came onto the project on or about March of 2019, and and
18 Cross-Defendant Andrew Pietra, along with Chuck Miner and Ian Goquingco, who were Qorum
19 employees, at least one of whom was also located in California.
20 27. On or about July 2019, when Cross-Complainants had completed 99% of the work to be
21 performed on the project, Cross-Defendants demanded that Cross-Complainants deliver all of their
22 work to Qorum. Cross-Complainants complied, turning over a very nearly complete version of the
23 product to Qorum, at which point in time Cross-Defendants cut off Cross-Complainants’ access to
24 its system. Qorum has not paid Cross-Complainants for any of the work performed in 2019.
25 ALTER EGO ALLEGATIONS
26 28. Cross-Complainants are informed and believe, and thereon allege, that Qorum is, and at all
27 times since its formation was, the alter ego of Cross-Defendant Pietra. Cross-Complainants are
28

6
FIRST AMENDED CROSS-COMPLAINT
1 informed and believe, and thereon allege, that there is a unity of ownership and interest by and
2 between Cross-Defendants Qorum and Pietra such that any separateness between them has never
3 existed.
4 29. Cross-Complainants are informed and believe, and thereon allege, that Qorum was formed
5 by Pietra, and operated with inadequate capitalization and failed to respect other corporate
6 formalities that would indicate a existence from Pietra.
7 30. Cross-Complainants are informed and believe, and thereon allege, that Pietra has the legal,
8 beneficial, or equitable ownership, directly or indirectly, of more than 50% of all voting equity
9 interests in Qorum.
10 31. Cross-Complainants are informed and believe, and thereon allege, that Pietra commingled
11 and failed to segregate the funds and assets of Qorum from his own and treated the assets and funds
12 nominally belonging to Qorum as his own funds. In support of this claim, Cross-Complainant
13 alleges that, at times, Pietra would pay Qorum’s invoices personally instead of paying invoices from
14 Qorum’s account, which evidences a commingling of assets between Qorum and Pietra. For
15 example, on August 20, 2018, Cross-Defendant Pietra issued a cashier’s check in the amount of
16 $49,722 in order to pay amounts owed to Defendants which was not issued from Qorum’s account.
17 As another example, on September 24, 2018, Cross-Defendant Pietra issued a cashier’s check in
18 the amount of $55,831 in order to pay amounts owed to Defendants which was not issued from
19 Qorum’s account.
20 32. Cross-Complainants are informed and believe, and thereon allege, that Pietra has controlled,
21 dominated, managed and operated Qorum since its incorporation for his benefit.
22 33. Cross-Complainants are informed and believe, and thereon allege, that Qorum is, and at all
23 times mentioned was, a mere shell, instrumentality and conduit through which Pietra carred on his
24 activities.
25 34. Cross-Complainants are informed and believe, and thereon allege, that Pietra exercises and
26 continues to exercise such complete control and dominane of the activities of Qorum that any
27 individuality or separateness of Qorum does not, and at all relevant times did not, exist.
28

7
FIRST AMENDED CROSS-COMPLAINT
1 35. Cross-Complainants are informed and believe, and thereon allege, that Qorum exists solely
2 to ensure that Pietra remains “judgment-proof.”
3 36. Adherence to the fiction of the separate existence of Qorum as an entity distinct from Pietra
4 would permit an abuse of the privileges against liability afforded to companies, and would result in
5 unfairness to Cross-Complainants and an inequitable result. It would promote injustice by allowing
6 Pietra to evade liability or veil assets that should be in equity be used to satisfy the judgment sought
7 by Cross-Complainants in this action.
8 FIRST CAUSE OF ACTION
9 (Breach of Contract Against Cross-Defendant Qorum)
10 37. Cross-Complainants refer to and incorporate by reference each and every allegation
11 contained in Paragraphs 1-36 of this Cross-Complaint as though fully set forth herein.
12 38. Cross-Complainants have performed all obligations required to be performed under the
13 contract, except as to services excused by Qorum’s breach of the parties’ contract.
14 39. Qorum has failed to pay for services rendered by Cross-Complainants to Qorum pursuant to
15 the parties’ contract.
16 40. Qorum’s failure to pay fees pursuant to the parties’ contract is a breach of the contract.
17 41. Attached hereto as Exhibits 2 through 8 are true and correct copies of unpaid invoices from
18 Cross-Complainants to Qorum.
19 42. Qorum owes Cross-Complainants a delinquent balance under the parties’ contract of in
20 excess of three hundred forty-eight thousand seven hundred and ten dollars ($348,710) at the time
21 of the filing of this Complaint, plus interest, costs, late charges, and attorneys fees.
22 SECOND CAUSE OF ACTION
23 (Open Book Account Against All Cross-Defendants)
24 43. Cross-Complainants refer to and incorporate by reference each and every allegation
25 contained in Paragraphs 1-36 of this Cross-Complaint as though fully set forth herein.
26 44. Cross-Complainants engaged in certain transactions and provided services to Cross-
27 Defendants.
28

8
FIRST AMENDED CROSS-COMPLAINT
1 45. Cross-Complainants kept an account of the debits and credits involved in these transactions
2 and services.
3 46. Cross-Defendants owe Cross-Complainants money on the account.
4 47. Neither the whole or any part of the delinquent amount has been paid.
5 48. Cross-Defendants are now indebted to Cross-Complainants on an open book account for
6 money due in the sum of excess of three hundred forty-eight thousand seven hundred and ten dollars
7 ($348,710).
8 THIRD CAUSE OF ACTION
9 (Account Stated Against All Cross-Defendants)
10 49. Cross-Complainants refer to and incorporate by reference each and every allegation
11 contained in Paragraphs 1-36 of this Cross-Complaint as though fully set forth herein.
12 50. Cross-Defendants owe Cross-Complainants money from previous transactions that were
13 set forth in an account stated by Cross-Complainants through their invoices.
14 51. Cross-Complainants and Cross-Defendants, by words or conduct, agreed that the amount
15 stated in Cross-Complainants’ invoices to Qorum was the correct amount owed to Cross-
16 Complainants.
17 52. Cross-Defendants, by words or conduct, promised to pay the amount stated in Cross-
18 Complainants’ invoices to Cross-Defendants.
19 53. Cross-Defendants have not paid Cross-Complainants the amount owed under this account.
20 Neither the whole or any part of the delinquent amount has been paid.
21 54. Cross-Defendants consequently owe Cross-Complainants the amount owed under this
22 account in excess of three hundred forty-eight thousand seven hundred and ten dollars ($348,710).
23 FOURTH CAUSE OF ACTION
24 (Quantum Meruit - Goods and Services Rendered Against All Cross-Defendants)
25 55. Cross-Complainants refer to and incorporate by reference each and every allegation
26 contained in Paragraphs 1-36 of this Cross-Complaint as though fully set forth herein.
27 56. Cross-Defendants, by words or conduct, requested that Cross-Complainants perform
28

9
FIRST AMENDED CROSS-COMPLAINT
1 services for the benefit of Cross-Defendants.
2 57. Cross-Complainants have performed the services as requested.
3 58. Cross-Defendants have not paid for the services which they requested.
4 59. The reasonable value of the goods and services rendered by Cross-Complainants to Cross-
5 Defendants for which they have not been paid are in excess of three hundred forty-eight thousand
6 seven hundred and ten dollars ($348,710) as of the time of filing of the Complaint.
7 FIFTH CAUSE OF ACTION
8 (Violation of The Invasion of Privacy Act – California Penal Code § 630, et seq. – Against All
9 Cross-Defendants)
10 60. Cross-Complainants refer to and incorporate by reference each and every allegation
11 contained in Paragraphs 1-36 of this Cross-Complaint as though fully set forth herein.
12 61. California’s Invasion of Privacy Act prohibits “intentionally and without the consent of all
13 parties to a confidential communication, uses an electronic amplifying or recording device to
14 eavesdrop upon or record the confidential communication, whether the communication is carried
15 on among the parties in the presence of one another or by means of a telegraph, telephone, or other
16 device.” (Cal. Pen. Code § 632)
17 62. The May 6, 2019, call involved a conversation between Justin Mahon, a QaProsoft project
18 coordinator, and Cross-Defendant Andrew Pietra, along with Chuck Miner and Ian Goquingco,
19 who were Qorum employees, constitutes a “confidential communication” under the Act because
20 Mahon had an objectively reasonable expection that the conversation was not overheard or
21 recorded.
22 63. Without the knowledge or consent of Mahon, Cross-Defendants intentionally recorded
23 their communications from the May 6, 2019, meeting by means of an electronic or recording
24 device in violation of the Act.
25 64. As a proximate cause of Cross-Defendants’ violation of the Act, Cross-Complainants
26 actually have been harmed.
27 65. Cross-Defendants’ violation of the Act was a substantial factor in causing Cross-
28

10
FIRST AMENDED CROSS-COMPLAINT
1 Complainants’ harm, and therefore Cross-Complainants are entitled to recover three times the
2 amount of their damages.
3 66. Cross-Complainants are also entitled to recover $10,000 against each Cross-Defendant.
4 67. Cross-Complainants are also entitled to an injunction prohibiting Cross-Defendants from
5 disclosing, publishing or otherwise disseminating the illegally recorded version of the May 6,
6 2019, telephone call.
7 SIXTH CAUSE OF ACTION
8 (False Promise [Promissory Fraud] – Against Cross-Defendant Pietra and Qorum, Inc.)
9 68. Cross-Complainants refer to and incorporate by reference each and every allegation
10 contained in Paragraphs 1-36 of this Cross-Complaint as though fully set forth herein.
11 69. Cross-Defendants made a promise to Cross-Complainants. Specifically, when Cross-
12 Defendants fell behind on Cross-Complainants’ invoices in early 2019, Pietra promised Cross-
13 Complainant (specifically Igor Vayner) that Cross-Defendants would pay Cross-Complainants in
14 full for Cross-Complainants’ work if Cross-Complainants would continue to work on the project
15 despite Cross-Defendants falling behind in these payments.
16 70. Cross-Defendants did not intend to perform on this promise when these promises were
17 made, i.e., at the time that Cross-Defendants promised Cross-Complainants that Cross-Defendants
18 would pay Cross-Complainants’ for all of their work in early 2019, Cross-Defendants had no
19 intention to abide by that promise.
20 71. Cross-Defendants intended that Cross-Complainants would rely on these promises.
21 72. Cross-Complainants reasonably relied on Cross-Defendants’ promises.
22 73. Cross-Defendants did not perform the promised act, i.e., Cross-Defendants did not pay
23 Cross-Complainants for any of Cross-Complainants’ work in 2019.
24 74. Cross-Complainants were harmed.
25 75. Cross-Complainants’ reliance on Cross-Defendants’ promise was a substantial factor in
26 causing their harm.
27 76. Cross-Defendants’ conduct was oppressive, fraudulent and malicious, and Cross-
28

11
FIRST AMENDED CROSS-COMPLAINT
1 Complainants are therefore entitled to recover punitive damages.
2 SEVENTH CAUSE OF ACTION
3 (Unfair Competition – Bus. & Prof. Code § 17200, et seq. – Against All Cross-Defendants)
4 77. Cross-Complainants refer to and incorporate by reference each and every allegation
5 contained in Paragraphs 1-36 of this Cross-Complaint as though fully set forth herein.
6 78. Cross-Defendants’ illegal recording of Cross-Complainants’ confidential communications
7 on May 6, 2019, their fraudulent representations to Cross-Complainants that Cross-Defendants
8 would pay Cross-Complainants’ invoices in full if Cross-Complainants would only continue to
9 work on the project and turn over the final product, and Cross-Defendants’ receipt of the final
10 work product from Cross-Complainants without paying for it, constitutes unlawful, fraudulent,
11 and unfair business practices within the meaning of California Business & Professions Code
12 17200. Such conduct is made unlawful by, among other things, California Penal Code § 630, et
13 seq.
14 79. Cross-Defendants’ unlawful, fraudulent, and unfair business practices have caused Cross-
15 Complainants to suffer an injury, to wit: Cross-Complainants have lost at least three hundred forty-
16 eight thousand seven hundred and ten dollars ($348,710) they were owed on the project, and Cross-
17 Complainants spent innumerable hours of time performing services for which Cross-Complainants
18 have never been compensated.
19 80. Under Business & Professions Code 17203, Cross-Complainants are entitled to an injunction
20 prohibiting Cross-Defendants from disclosing, publishing or otherwise disseminating any illegally
21 recorded telephone calls with Cross-Complainants and returning any work product which Cross-
22 Complainants turned over to Cross-Defendants by virtue of Cross-Defendants’ false promises.
23 81. Cross-Complainants are also entitled to recover their attorney’s fees under California Code
24 of Civil Procedure Section 1021.5.
25 PRAYER FOR RELIEF
26 Wherefore, Cross-Complainants pray for relief and judgment against all Cross-Defendants,
27 as follows:
28 Causes of Action One through Three

12
FIRST AMENDED CROSS-COMPLAINT
1 1. Compensatory damages in an amount according to proof, but in no case less than
2 three hundred forty-eight thousand seven hundred and ten dollars ($348,710);
3 Causes of Action Four

4 1. The reasonable value of Cross-Complainants’ services;

5 Cause of Action Five

6 1. Three times the amount of damages, according to proof at trial;

7 2. $10,000 against each Cross-Defendant;

8 3. An injunction prohibiting Cross-Defendants from disclosing, publishing, or

9 otherwise disseminating any illegally-recorded telephone conversations with Cross-
Complainants;
10
Cause of Action Six
11
1. Compensatory damages, according to proof at trial;
12
2. Exemplary and punitive damages;
13
Cause of Action Seven
14
1. An injunction prohibiting Cross-Defendants from disclosing, publishing, or
15
otherwise disseminating any illegally-recorded telephone conversations with Cross-
16
Complainants and further prohibiting Cross-Defendants from continuing to possess
17
or use any work product that Cross-Complainants turned over to Cross-Defendants
18
and requiring Cross-Defendants to return the illegally-acquired work
19
product/software to Cross-Complainants;
20
2. For restitution of amounts Cross-Complainants are owed;
21
3. For its attorney’s fees and costs of suit under California Code of Civil Procedure
22
Section 1021.5;
23
All Causes of Action
24 1. Costs of suit;
25 2. Pre-judgment and post-judgment interest;
26 3. Such other and further relief as the Court deems just and proper.
27

13
FIRST AMENDED CROSS-COMPLAINT
1 Dated: December 23, 2019 MARKUN ZUSMAN FRENIERE & COMPTON LLP
2

4 By: ______________________________________________
Wendy M. Thomas
5 Attorneys for Defendant and Cross-Complainants
QaProsoft, LLC, and Solvd, Inc., and Defendants Igor
6 Lysenko, and Igor Vayner

14
FIRST AMENDED CROSS-COMPLAINT
EXHIBIT 1
SERVICE PROVIDER AGREEMENT (FEB2017)

This Agreement as of 16 day of February, 2017, between Qorum(“Client”) and QaProsoft LLC ("Service
Provider").
Name: QaProsoft LLC (Service Provider) Name Qorum (Client)
Attn: Igor Vayner (co-founder) Attn: Andrew Pietra

Address 173 Summit Way Address 100 Pine St, Suite 1250
City, State, Zip,San Francisco, CA 94132 USA City, State, Zip San Francisco, CA 94111
(415) 828-4594
igor@QaProsoft.com
Send payments to QaProsoft LLC Send Invoices To Qorum
Attn: Igor Vayner Attn: Andrew Pietra
173 Summit Way
San Francisco, CA 94132 USA 100 Pine St, Suite 1250
San Francisco, CA 94111
1. Background
Service Provider is a Software Development Company, QA, UI/UX Design and test automation company.
Service Provider specializes in testing and development of custom software test applications, specifically, test
automation modules, custom test-related infrastructure programming and, client-server, internet interface, and
mobile software and applications.

2. Scope of Services; Payment. Service Provider agrees to perform for the Client test automation and/or
software development services described in attached exhibit(s)/SOWs hereto and all obligations, duties,
responsibilities and requirements for the successful completion of the services specified, including the
furnishing by Service Provider of all supervision, labor, materials and other supplies in accordance with the
terms and conditions set forth herein (the "Services").
LC agrees to pay Service Provider for the Services:
a. One iOS Software Developer at the rate of $38 (thirty eight USD) per men/hour for services
b. Two Android Software Developers at the rate of $38 (thirty eight USD) per men/hour for
services
c. One Backend Software Developer at the rate of $38 (thirty eight USD) per men/hour for
services
d. Two QA Engineers at the rate of $27 (twenty seven USD) per men/hour for services
e. UI/UX designer at the rate of $30 (thirty USD) per men/hour will be utilized per Client request
f. Payable once a month
g. In addition to the human resources, Client agrees to pay for third-party software licenses and/or
cost of services that will be used in the Client projects. Service provider will provide estimates to
the Client, for the approval, prior to acquiring software and/or services.

3. Delivery terms
As directed by. Will be specified in separate exhibit(s)/SOWs

4. Independent Contractor. In all matters relating to this Agreement, Service Provider shall be acting as an
independent contractor. Neither Service Provider nor its employees shall be the employees of Client under the
meaning or application of any federal or state laws, including but not limited to unemployment insurance or
worker's compensation laws. Service Provider shall assume all liabilities and obligations imposed by any such
laws with respect to its employees. Service Provider shall have no authority to act as the agent of Client and
shall not hold itself out as such.

5. Client Data; Confidential Information. All data, documents and other Client property shall remain the
exclusive property of Client. Service Provider agrees that such Client property shall be used solely for the
purpose of performing the Services. Service Provider shall be responsible for the safekeeping of such property
and, if Client so requests, Service Provider shall sign and deliver a written, itemized receipt therefore. Upon
conclusion of the Services, all such property shall be returned to Client. Any confidential information
concerning Client which is so designated upon disclosure to Service Provider shall be maintained in confidence
by Service Provider.

6. Records. Service Provider shall keep accurate records and books of account showing all charges,
disbursements, and expenses made or incurred by Service Provider in performing the Services. Client may,
upon reasonable notice, examine Service Provider's books and records relating to performance of the Services
from time to time during the term of this Agreement and at any time within one (1) year after its termination.

7. Compliance with Law. Service Provider agrees to comply with all applicable federal, state and local laws
and regulations. Service Provider shall not discriminate on the basis of race, religion, age, sex, color, disability,
sexual orientation, political affiliation, national or ethnic origin, or status as a disabled veteran, veteran of the
Vietnam era or other veteran.

8. Indemnificat

Case Info

Judge

Samuel K. Feng Track Judge’s New Case

Case No.

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Document Filed Date

December 23, 2019

Case Filing Date

July 29, 2019

County

Parties

DOES 1 THROUGH 50, INCLUSIVE Defendant
LYSENKO, IGOR Defendant
MOSKOWITZ, PAUL Attorneys for Plaintiffs
MOSKOWITZ, PAUL Attorney for the Plaintiff
PIETRA, ANDREW Cross Defendant
QAPROSOFT, LLC Cross Complainant
QAPROSOFT, LLC Defendant
QORUM, INC. Cross Defendant
QORUM, INC. Plaintiff
ROES 1 THROUGH 20, INCLUSIVE Cross Defendant
SOLVD, INC. Cross Complainant
SOLVD, INC. Defendant
THOMAS, WENDY M. Attorneys for Defendants
THOMAS, WENDY M. Attorney for the Defendant
VAYNER, IGOR Defendant
WEINER, SETH W Attorneys for Plaintiffs
WEINER, SETH W Attorney for the Plaintiff
Betty Huynh Attorneys for Defendants
David Crane Attorneys for Plaintiffs
Andrew Danza Attorneys for Defendants
Michael Pearlson Attorneys for Plaintiffs
Carol Hanna Attorneys for Defendants
Leonard Grayver Attorneys for Defendants

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Order: QORUM, INC. VS. QAPROSOFT, LLC ET AL

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