Motion for Entry of Judgment in IMMERGE, INC., a Delaware Corporation vs. I M ENTERPRISES, LLC, a State of California Limited Liability Company| Trellis.Law

On October 07, 2019 a Request,Application was filed involving a dispute between Immerge, Inc., A Delaware Corporation, and I M Enterprises, Llc, A State Of California Limited Liability Company, Machado, Irma, for 20 Unlimited - Enforcement of Judgment in the District Court of Fresno County.

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ATTORNEY 0R PARTY WITHOUT ATTORNEY (Name and Address): TELEPHONE N0: FOR COURr USE ONLY
__S_TEVEN R. HRDLICKA #117557 559 485-1453
AT TORNEY AT LAW
122 l VAN NESS , 2ND FLOOR
FRESNO, CA 93721

ArrORNEY FOR(Name): P LA I N T I FF
NAMEOFCOURT: FRESNO COUNTY SUPERIOR COURT E-FILED
STREETADDRESS; B.E‘. SISK COURTHOUSE 10/7/2019 10:58 AM
MAILINGADDRESS; 1130 "O" STREET Superior Court of California
cITYANDZIPCODE: FRESNO, CA 93724 County of Fresno
BRANCHNAME; CIVIL UNLIMITED, CENTRAL DIVISION By: I. Herrera, Deputy
PLA|NTIFF: IMMERGE, INC., a Delaware Corporation

DEFENDANT: I M ENTERPRISES, LLC , a State of California
Limited Liability Company; IRMA MACHADO, an
individual; CASE NUMBER:
APPLICATION FOR ENTRY OF JUDGMENT 0N SISTER-STATE JUDGMENT
E
E AND ISSUANCE OF WRIT OF EXECUTION 0R OTHER ENFORCEMENT
AND ORDER FOR ISSUANCE OF WRIT OR OTHER ENFORCEMENT
19CECG03643

Judgment judgment based upon a
creditor applies for entry of a sister-statejudgment as follows:
1. Judgment creditor(name and address); IMMERGE, INC. , a Delaware Corporation, 5600 S.
QUEBEC ST, STE B300 , GREENWOOD VILLAGE, CO 80111
2. a.Judgmentdebtor(name): I M ENTERPRISES, LLC, a State of California Limited
Liability Company; IRMA MACHADO, an individual;
b. An individual(last known residence address): 584 w. ELLERY AVE, CLOVIS, CA 93612
c.
D A corporation of (specify place of incorporation):

(1)E E
Foreign corporation

E do business
qualified to

not qualiﬁed to
in

do business
California

inCalifornia

d. E A partnership (specify principal place of business):

(1)D Foreign partnership which
has
E
[:1 filed

has not
statement under Corp
filed
C 15700
statement under Corp C 15700

3. a.Sisterstate (name): COLORADO

b.8ister-statecourt (name andlocation): ARAPAHOE COUNTY DISTRICT COURT, 7325 S. POTOMAC,
CENTENNIAL, CO 80112
c‘ Judgment entered state
in sister on (date): 6/1O/2O19

4. An authenticated copy of the sister-state judgment is attached to this application. Include accrued interest on the sister-state
judgment inthe California judgment (item 50).
°
a‘ Annual 18
interest rate allowed by sister state (specify): c\

b, Law PER
of sister state establishing interest rate (specify): COURT ORDER

5‘ a. Amount remaining unpaid on sister-state judgment: ........................ I $ 2 63 ,8 66 . lO
b. Amount of ﬁling fee forthe application: ................. ,
$ 435 . 00
c. Accrued intereston sister—statejudgment: $
,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, 8 ,38 5 . 61

d. Amount ofjudgment tobe entered of 5a,
(total b,and c): $ 272 686 . 71
___________________________________
(Continued on reverse)
Fm Amvm wry? APPLICATION FOR ENTRY 0F JUDGMENT 0N {.egal
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ev’ SISTER-STATE JUDGMENT So uL ns* 1710-20

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Optional Form P us
SHORTTITLE: IMMERGE, INC. VS. I M ENTREPRISES, LLC CASENUMBER:

6.
E Judgment creditor also applies
of entry ofjudgment as follows:
forissuance of a writ ofexecution or enforcement by other means before service of notice

a. C] UnderCCP 1710.45(b).

b. E A coun
creditor
order
if
isrequested under
issuance of the writ or
CCP 1710.45(c). Facts showing that great or irreparable injury
enforcement by other means isdelayed are set forthas follows:
judgment
will result to

E continued inattachment 6b.

7. An action state
in this on the judgment
sister-state is not barred by the statute of limitations.

8. lam informed and believe that no stay of enforcement of the sister-state judgmentisnow in effect in the sister state.

9. No action ispending and no judgment has previously been entered inany proceeding Californiabased upon the sister-state
judgment.

ldeclare under penalty of perjury under the laws of the State of California that the foregoing
is trueand correct except as tothose
matters which are stated to be upon information and belief,and as to those matters |believe em to e rue

Date: 10/4/2019

STEVEN _._R _HRDLI_CK_A #117557 I I '
’
(TYPEOR PRINT NAME) (SIGNATUEFOI- JUDGMENT CREDITOR OR ATTORNEY)

Page 'W°
EJ-105 [Rev. July
1983]
1.
APPLICATION FOR ENTRY OF JUDGMENT ON SISTER-STATE JUDGMENT
COMBINED COURT
STATE OF COLORADO V
cs
”
ARAPAHOE COUNTY.
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CERTlFIED tobe aML {rueandcor-
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DATED AL. Ream 0*
SHANA KLUEK

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Arapahoe County District Court
7325 S. Potomac
Centennial, CO 80112

Plaintiffs: IMMERGE, lnc., a Delaware Corporation

v. Case Number: 2018 CV 32647
Defendants: |M ENTERPRISES LLC, a State of Division: 21
California Limited LiabilityCompany; and IRMA
MACHADO, an individual

ORDER — RE: Plaintiff’s Motion for Entry of Partial Summary Judgment

Having reviewed Plaintiff Immerge, |nc.’s April 4, 2019 “Motion for Entry of Partial
Summary Judgment” (the “Motion”), in the absence of a response from either Defendant | M
Enterprises LLC (“‘IME") or Defendant Irma Machado (“Machado”), and being otherwise fully
advised of the premise of the Motion, the Court makes the following rulings:

A. Factual and Procedural Background.

1. Immerge isa Delaware corporation that “provides sales, brand growth, marketing and
management related consulting services” [Complaint, ﬂ 1].

2. IME is a California limited liabilitycompany [id. atﬂ 2], and Machado “has identified
herself as the chief officer, chief manager, principal partner, registered agent, member,
shareholder and owner of IME" at
[I'd.
1T 3].

3. On October 15, 2018, Immerge and IME entered into two agreements for Immerge’s
consulting services: the “IBO Marketing Services Agreement” (the “IBO Agreement”) and the
Marketing Acceptance Agreement (“MAA Agreement") (collectively, the “Agreements”) [id at
111111-13].

4. “To induce Immerge to enter into the [Agreements], Defendant Machado personally
unconditionally and irrevocably quaranteed and aqreed to perform all duties and obligations
of IME to Immerge and to be personally. iointly and severally liable for IME's liabilities,duties
and obliqations under the Aqreementfs]. See Exhibit 1 at § 17” [id. atﬂ 12 (emphasis added)].

5. ln full,Machado’s “personal guarantee" states:
17. INDIVIDUAL UNDERTAKINGS — PERSONAL GUARRANTY
17.1 By executing this Agreement, and to induce IMG to extend Credit to IBO, via
this Agreement and thus any associated MAA, lBO’s below officer and authorized
signatory and personal guarantor (“PG"), has agreed to unconditionally and irrevocably
guarantee to IMG the prompt performance of all covenants, obligations and conditions
as well as payment when due of allCredit obligations of IBO under this Agreement.
For example, without limitation, if IMG provides IBO paymenﬂfunds in the form of
prepayment of Services Commissions, draws on future Commissions, or use of IMG,
or IMG Client owned, assets or equipment, or waives associated required security
deposits otherwise due (collectively, the “Advances”), PG hereby personally
guarantees repayment of such Advances, with the same monetary liability limit.PG
also personally guarantees, without limitation, the repayment of any unearned
Commission Bonus funds, unearned bonus type funds or MDFS, and any unearned
Compensation (Set-Offs, Chargebacks, etc.). Similarly, if any judgment(s) are
rendered in favor of IMG and against IBO via the dispute resolution
provisions/procedures of this Agreement, PG personally guarantees the payment of
any/all such judgment amounts, plus any ordered interest thereon, costs and
attorneys’ fees.

17.2 PG agrees that this is a guaranty of payment and not of collection and that IMG
can proceed directly against PG without first proceeding against IBO or against the
encumbered assets or equipment, or before enforcing any other remedy available to
IMG before IMG proceeds against PG. PG waives notice of acceptance and of any
other kind of notice or demand to which PG may be entitled. PG waives all defenses,
including those of protest, presentment and demand.

17.3 If IBO defaults under this Aqreement, PG will immediatelv perform all

obliqations of IBO hereunder. includinq but not limited to protectinq qiven assets/
equipment and pavinq all Advances and like Credit amounts due. This is a continuing
guaranty that will not be discharged and will bind PG’s heirs, representatives,
successors and assigns. PG authorizes IMG to obtain credit bureau reports regarding
PG’s personal credit and to make other credit inquiries that IMG determines are
reasonably necessary.

[Compl., Ex. 1 at§ 17 (emphasis added)].

6. On November 14, 2018, Immerge filed its Complaint against IME and Machado
alleging, inter alia, breach of contract claims [Compl., 1m 27-38].

7. On December 24, 2018, pro se Machado filed (1) an Answer to Immerge’s Complaint,
and (2) a Cross—Complaint against Immerge; Machado’s December filings were filed on
behalf of herselfﬂ IME.
8. On January 4, 2019, Immerge filed (1) an Answer to Machado’s Cross-Complaint, and
(2) a Motion to Strike IME’s December 24 Answer and Cross—Complaint (“Immerge’s Motion
to Strike”). Additionally, on January 8, 2019, lmmerge filed a Motion for Default Judgment
against IME.

9. On January 30, 2019, the Court ruled on lmmerge’s Motion to Strike and lmmerge's
Motion for Default Judgment against IME:

[G]iven the amount in controversy in this case, Colo. Rev. Stat. 134-127(2) reguires
that IME must be represented bv an attorney.

The Court will STAY consideration of Plaintiff's Motioné for a period of 35 days from
the date of this Order.

The Court will give Defendant IME 35 davs from the issuance of this Order to obtain
counsel and file itsAnswer to Plaintiff's Complaint and to file Counterclaims, if any.

If Defendant IME does not obtain counsel and ﬁle an Answer to Plaintiff's Complaint
within 35 days of the issuance of this Order, the Court will reconsider Plaintiff‘s 1/4/19
Motion to Strike and its 1/8/19 Motion for Default Judgment.

[1/30/19 Order (emphasis in original)].

10. To date, IME has n_ot retained counsel, nor has itfiled a responsive pleading to
lmmerge's Complaint.1

11. Accordingly, on April 2, 2019, the Court issued the following three Orders:

a. First, the Court granted lmmerge’s Motion to Strike, striking IME‘s December 24
Answer and Cross-Complaint.

b. Second, the Court granted lmmerge’s Motion for Default Judgment against IME
in the amount of $255,182.89 plus post-judgment interest, compounded monthly at the rate of
1.50% per month (i.e.,an annual interest rate of 18%).2

c. Third, the Court issued its InitialCase Management Order, informing the parties
that, after granting lmmerge‘s Motion for Default Judgment against IME, the present case
was “at issue."

1
Pursuant to C.R.S. § 134-127(2). the documents filedon December 24, 2018 by Machado were on
n_ot filed
behalf of IME.

2
The $255,182.89 judgment is comprised of: (1) a principal amount of $250,000; (2) “legal related costs"inthe
amount of $382.89; and (3) reasonable attorneys’ fees in the amount of $4,800.00 [see 4/2/19 Order, 111] 12—15].

3
12. On April 4, 2019, Immerge filed the present Motion. alleging, inter a/ia, thatz3

3. Defendant Machado has materially breached the terms and conditions of the
MSA via her material breach of her Personal Guaranty to Plaintiff Immerge by: (a) not
promptly performing the covenants, obligations and conditions, when due, of
Defendant IME under the MSAW as provided therein; and (b) not providing prompt
payment when due of Defendant IME’s outstanding financial obligations to Plaintiff
Immerge as promised, specifically the $255,182.89 monetary Judgment amount
awarded via the IME Order. See Exhibit1 Personal Guaranty at pg. 13, § 17;
Complaint at pgs. 7 and 8, 111]
33-38.

4. As Defendant IME has failed to tender any payments to Plaintiff Immerge
towards the satisfaction of the $255,182.89 monetary Judgment, to date Plaintiff
Immerge’s is entitled to damages from Defendant Machado of no less than
$255,182.89. See IME Order at 2 and 3, 1m 12-15.

5. Defendant Machado has failed t0 tender any payments to Plaintiff Immerge
towards the satisfaction of the $255,182.89 monetary Judgment.

6. Defendant Machado is jointly and severally liable with Defendant IME for allof
Plaintiff lmmerge's damages. See Exhibit 1, Personal Guaranty at pg. 13, § 17.

7. Defendant Machado is jointly and severally liable with Defendant IME for all of
Plaintiff Immerge’s legal expenses, including attorneys' fees and costs incurred in
connection with the 5 enforcement of the MSA and her Personal Guaranty. See Exhibit
1, Personal Guaranty at pg. 13, § 17.

8. Aside from being jointly and severally liable with Defendant IME for the IME
Order’s $255,182.89 monetary Judgment amount via her Personal Guaranty,
Defendant Machado has admitted, confessed judgment and has agreed that judgment
should enter against her, and in favor of Plaintiff Immerge, on Plaintiff’s Second Claim
for Relief contained in its Complaint (Breach of Contract/Guaranty). A true and correct
copy of Machado’s executed and notarized December 21, 2018, Confession of
Judgment is attached hereto as Exhibit 2.

[Motion at 4-5 (emphasis in original)].

3
Machado has not disputed any of lmmerge’s “Statement of Undisputed Material Facts," as she has not fileda
response to Immerge's Motion [see 11 14, below].

4
The Court believes that Motion,
in its Immerge occasionally and erroneously refers to theMAA Agreement as
the MSA Agreement.
4
13. Immerge’s Motion ”respectfully requests that this Honorable Court enter Summary
Judgment in its favor and against individual Defendant Irma Machado on Plaintiff’s Second
Claim for Relief, Breach of Contract/Guaranty, in the amount of not less than $255,182.89,
plus pre/post-judgment interest, and for such other relief as this Honorable Court deems just
and appropriate" [id.at 8 (emphasis added)]. Immerge also requests “that the Court award
legal costs and reasonable attorney’s [(sic)] fees against Defendant Machado...” [id.at
footnote 1].

14. Pursuant to C.R.S. 121(0), 1-15(1)(b), Machado had 21 days (i.e.,until April 25, 2019)
to filea response to the present Motion. To date, Machado has n_ot ﬁled a response to the
present Motion.5

15. As such, the present Motion is ripe.

B. Legal Standard — C.R.C.P. 56.

16. Summary judgment isappropriate where “the pleadings, depositions, answers to
interrogatories, and admissions on file,together with the affidavits [submitted] .. .show
that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” See C.R.C.P. 56(0); Miller v. Van Newkirk,
628 P.2d 143, 145 (Colo. 1980).

a. The purpose of summary judgment is to avoid the time and expense of trial
when, based upon undisputed facts, one party cannot, as a matter of law, prevail at trial. See
Peterson v. Halstead, 829 P.2d 373, 375 (Colo. 1992); Werkmeister v. Robinson Dairy,
|nc., 669 P.2d 1042, 1044 (Colo. App. 1983).

17. However, summaryjudgment is a drastic remedy, which should only be granted
when there is a clear showing that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. KN Energy, Inc. v. Great
Western Sugar Co., 698 P.2d 769, 776 (Colo. 1985).

a. Summary judgment should not enter unless the moving party has clearly shown
that no genuine issue of material fact exists. Compass Ins. Co. v. City of Littleton, 984
P.2d 606, 613 (Colo. 1999).

18. The party moving for summary judgment bears the initial burden of presenting
the basis for a motion for summary judgment and identifying those portions of the record
which demonstrate the absence of any genuine issues of material fact or any triable

5
While Machado proceeds pro se, and the Court isobligated to provide her with additionai procedural
assistance pursuant to Code of JudicialConduct Rule 2.2,Comment [4], "pro se litigants are bound by the same
rules of procedure as attorneys licensed to practice law
civil Negron
in this state." v. Golder, 111 P.3d 538. 541
(Colo. App. 2004).

5
issues offact. Continental Airlines, Inc. v. Keenan, 731 P.2d 708, 712 (Colo. 1987);
Churchey v. Adolph Coors Co., 759 P.2d 1336, 1340 (Colo. 1988).

19. Once this initial burden has been met, the burden shifts to the nonmovinq party to
establish that there is a triable issue offact. Keenan, 731 P.2d at 712 (emphasis added).

a. The nonmoving party must set forth specific facts through affidavits or other
means to show that there is a genuine issue for trial, and may not rest upon the mere
allegations or denials in the pleadings or simple argument. Burman v. Richmond Homes
Ltd., 821 P.2d 913, 917 (Colo. App. 1991).

20. Ifthe nonmoving party cannot muster sufficient evidence to establish that there is a
triable issue of material fact, the moving party isentitled to summaryjudgment as a matter of
law. Keenan, 731 P.2d at 712.

21. Although neither C.R.C.P. 56 nor 121(0) require a party to respond to an opponent’s
motion for summary judgment, Rule 121(0) §1-15.3 reflects a preference that the nonmoving
party respond. A response promotes efficiency by informing the court of whether the motion is
opposed, providing the court with argument and authorities, and enabling the court to
determine whether oral argument is necessary. See City & County of Denver v. Ameritrust
Co., 832 P.2d 1054 (Colo. App. 1992).

22. However, courts favor the resolution of disputes on their merits. Craig v. Rider,
651 P.2d 397 (Colo. 1982). Accordingly, a court may not deem a motion for summary
judgment to have been confessed by a failure to respond. Murphy v. Dairyland Ins. C0,,
747 P.2d 691 (Colo. App. 1987); see also Koch v. Sadler, 759 P.2d 792 (Colo. App. 1988);
see also Pistora v. Rendon, 765 P.2d 1089 (Colo. App. 1988).

23. To prevail on a motion for summaryjudgment under C.R.C.P. 56, the moving party
must still establish allthe requirements for summary judgment under C.R.C.P. 56. Ginter v.
Palmer & C0,, 585 P.2d 583 (Colo. 1978); see also Seal v. Hart, 755 P.2d 462 (Colo. App.
1998).

C. Legal Analysis.

24. Immerge seeks to prevail on its breach of contract claim against Machado as a matter
of law on summary judgment [Motion at 7-8].

25. lmmerge’s claim against Machado for breach of contract requires proof of each of the
following elements:

It has long been the law in Colorado that a party attempting to recover on a claim for
breach of contract must prove the following elements: (1) the existence of a contract;
(2) performance by the plaintiff or some justification for nonperformance; (3) failure to
perform the contract by the defendant; and (4) resulting damages to the plaintiff.

Western Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992).

26. The Court finds that the following facts are more probably true than not:

a. A contract exists between Immerge and Machado in the form of the
Agreements [Comp|., Ex. 1 atﬂ 17].

b. Immerge provided services to Machado under the Agreements [id.; Mot, Ex. 2
at 1m 1-3].

c. Machado failed to pay Immerge for services rendered under the Agreements
[Mot., Ex. 2 at 1m 1-3].

d. The balance due from Machado to Immerge under the Agreements is

$255,182.89, which is provided via the established default amount Ordered on April 2, 2019,
[see 4/2/19 Default Judgment Order; see also Mot, Ex. 2 at 111]1-3].

27. Therefore, the Court finds that Immerge has proven its cause of action against
Machado for breach of contract, and for the resulting damages inthe amount of $255,182.89.

28. Additionally, interest isdue on the overdue payment for services from April 2, 2019, to
the date of this Order at the rate of 18% per annum, pursuant to the Agreements [Compl., Ex.
1 at § 4.8].

29. Judgment ishereby entered in favor of Immerge, |nc., and against Irma Machado, in
the sum of $255, 182 89, plus accrued interest from April 2, 2019 to the date that this Order is

issued June ‘IO, 2019) at the rate of 18% per annum in the amount of $8 683. 21, for a
jive '2
J1m min, ,,

D. Further Action.

30. Immerge requests “that the Court award legal costs and reasonable attorney’s [(sic)]
fees against Defendant Machado...” [Mot at 1, footnote 1].

a. Counsel for Immerge will submit Billof Costs and an affidavit summarizing the
reasonable attorneys’ fees incurred as a result of pursuing this action against Machado for
review, at his earliest convenience.
31. As stated above in 1] 7,Machado filed a Cross—Complaint against Immerge, which
Immerge answered on January 4, 2019. Therefore, Machado’s Cross-Complaint is also “at
issue” (and has been for nearly 150 However, Machado has
days). not filed any document in
this case since December 24, 2018.

a. Because Machado proceeds pro se, the Court will provide her with 35 days
from the issuance of this Order to ﬁle a brief status update with the Court (per Negron) to
inform the Court whether she intends to proceed with her Cross-Complaint against Immerge.

b. IfMachado fails to filea status update with the Court within 35 days of this
Order (i.e.,before July 4, 2019), the Court will dismiss her Cross-Complaint without prejudice
for failing to prosecute.

By Order of the Court on June 10, 2019.

John L. Wheeler
District Court Judge
Cc: All parties
COMBENED COURT
STATE OF COLORADO

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Plaintiff: IMMERGE, Inc., aDelaware Corporation, ACOURT USE ONLY A
VS.

Defendants: IM Enterprises LLC, a State of Case Number: 20 l8CV32647
California Limited Liability Company, and Irma
Machado, individually. Courtroom/Division: 21

ORDER RE: PLAINTIFF’S VERIFIED RULE 55 MOTION FOR ENTRY OF DEFAULT
AND DEFAULT JUDGMENT

THIS MATTER comes before the Court on PlaintiffIMMERGE Inc.’s Veriﬁed Motion
for Entry 0f Default Judgment against Defendant I M Enterprises LLC. The Court, having
reviewed the ﬁle, considered the Motion and any response ﬁled, being fully advised, and ﬁnding
that good cause exists, Orders as follows:

IT IS HEREBY ORDERED THAT that IMMERGE Inc.’s Veriﬁed Motion for Entry
of Default Judgment is GRANTED, and that Default Judgment is entered pursuant to C.R.C.P.
54, C.R.C.P. 55 and C.R.C.P. 121 §1-14 as follows:

(l) The name ofthe party to whom thejudgment is granted is:

IMMERGE Inc., a State of Delaware Corporation.

(2) The name ofthe party against whom judgment isbeing taken is:

IM Enterprises LLC, a State of California limited liabilitycorporation.

(3) Venue and Jurisdiction have been considered and are proper in this County and Court
pursuant t0 the terms ofthe Agreements between the parties, C.R.C.P. 98(0) and C.R.S.
§13-1-124.

(4) The Court issatisﬁed that service upon Defendant lM Enterprises LLC was properly
effected in accordance with C.R.C.P. 4 on November l9, 2018. Pursuant to C.R.C.P.
12(a), the Defendants had thirty-ﬁve (35) days from the date 0f service within which to
properly respond to Plaintiff’s Complaint.
(5) The Defendant I M Enterprises LL has failed to appear or otherwise defend 0r properly
respond to Plaintiff’s Complaint within thirty-ﬁve (35) days from the date ofservice.

(6) The Defendant in this action is not a minor, incapacitated person, ofﬁcer 0r agent of the
United States or the State of Colorado, nor in the military service.

(7) Default Judgment is properly entered in favor of Plaintiff“lMMERGE Inc.” a State of
Delaware Corporation (“Immerge”), and against Defendant “I M Enterprises LLC” a
State of California limited liability corporation (“1MB”).

(8) On October 15, 201 8, Defendant IME negotiated, executed and delivered an IBO
Marketing Services Agreement, a Marketing Acceptance Agreement and a Code of
Conduct (collectively the “‘Agx‘eelnents”), by and between itselfand lmmerge.

(9) As ofat least November 5, 201 8, Defendant IME has been inmaterial breach ofthe terms
and conditions of‘the Agreements by and between Immerge and IME by unlawfully and
unjustiﬁably: 1.) committing acts offraud, dishonesty, and/or other act(s) ofdeceptive,

negligent, reckless 0r willful misconduct in [allegedly] providing Services t0 Immerge;
2.) failing to commence Services related operations pursuant to the Agreements; 3.)
engaging inunfair, unscrupulous 0r unethical acts or misconduct which Immerge deemed
to be damaging t0 Immerge’s business operations and reputation via IME’s [alleged]
performance ofthe Services; 4.) failing and/Or refusing to actively provide the Services as
promised; 5.) failing or refusing to comply with conveyed System standards; 6.) making
unauthorized use, disclosure or duplication 0f Immerge’s Conﬁdential Information; 7.)
competing with, avoiding, circumventing, or attempting to circumvent [mmerge; 8.)
soliciting Immerge’s past and present employees, contractors, consultants,
representatives, Customers and/or Clients; 9.) defaming, disparaging and maligning
Immerge; and 10.) otherwise failing to perform and act in accordance with the material
terms and conditions of the Agreements.

(10) Immerge has satisﬁed all conditions precedent to enforcing any one or more ofthe
materially breached provisions ofthe Agreements against Defendant IME.

(11) Upon an express determination that there is nojust reason for delay and upon an express
request from Plaintiff Immerge for the entry ofjudgment, this Coun hereby directs the
entry ofﬁnaljudgment in favor ofPlaintiffImmerge and against Defendant IME on
Plaintiff Immerge’s First through Ninth and Twelfth Claims for Relief as alleged within
the Complaint.

(12) Immerge is hereby awarded a monetaryjudgment against the Defendant IME in the
principal amount 0f $250,000.00 representing the minimum value ofthe damages, harm
and injury suffered by Immerge as a result of any combination of Defendant IME’S: l.)
material breaches ofthe Agreements; 2.) improper, unjustiﬁed and intentional and/or
negligent interference with Plaintiff Immerge’s contractual relationships; 3.) improper,
unjustiﬁed and intentional and/or negligent interference with Plaintiff lmmerge’s
prospective business relationships; 4.) fraudulent misrepresentations; 5.) fraudulent
misappropriation and unauthorized disclosure of Immerge’s valuable trade secrets and
other Conﬁdential Information; and 6.) conveyance/publication of defamatory
statement(s) to third-parties.

(13) Pursuant t0 the Agreements postjudgment interest on this monetary award shall bear
interest compounded monthly from the date ofthis Order at the rate of one and one-half
percent (l 50%) per month (annual rate of18%), until ﬁnal payment is made to satisfy
the amount due.

(14) Immerge is hereby awarded its reasonable attorney’s fees as authorized
by the
Agreements between the parties, to be paid by the Defendant [ME in the amount 0f
$4,800.00.

(l5) Immerge ishereby awarded itsreasonable legal costs as authorized by the Agreements
between the parties, t0 be paid by the Defendant [ME inthe amount of $382.89.

SO ORDERED THIS day 0f 2019.

Hon. John L. Wheeler
18th Judicial District Judge

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Rosemary T. McGuire Track Judge’s New Case

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Document Filed Date

October 07, 2019

Case Filing Date

October 07, 2019

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Request,Application: IMMERGE, INC., a Delaware Corporation vs. I M ENTERPRISES, LLC, a State of California Limited Liability Company

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