Preview
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NYSCEF DOC. NO. 93 RECEIVEDINDEX NYSCEF:
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
---------------------------------------x
:
MICHAEL LI, individually and derivatively on behalf :
of FLUSHING ENDOSCOPY CENTER, LLC, :
. Index No. 719600/2019
Plaintiff, :
-against- :
:
KING-CHEN HON, ALAN C. YAO, JACKSON :
KUAN, LANA CHOY, AND FLUSHING :
ENDOSCOPY CENTER, LLC, :
:
Defendants. :
---------------------------------------x
DEFENDANTS' STATEMENT
RESPONSE TO PLAINTIFF'S
OF UNDISPUTED FACTS, AND COUNTER-STATEMENT
OF UNDISPUTED FACTS IN FURTHER OPPOSITION TO
THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Defendants, King-Chen Hon, Alan C. Yao, Jackson Kuan, Lana Choy, and Flushing
Endoscopy Center, LLC (collectively, "Defendants"), submit this Response to Plaintiff's Rule
19-a Statement of dated 2022 ("Plaintiff's and as a Counter-
Facts, January 3, Statement"),
Statement of Undisputed Facts in further opposition to Plaintiff's motion for summary judgment:
GENERAL OBJECTIONS
A. Defendants object to Plaintiff's Statement to the extent itfails to comply with the
concise"
Commercial Division Rule 19-a's requirement of a "short and statement of "material
facts,"
in that its 140 paragraphs result in a statement that is neither short nor concise, and alleges
facts that are not material to this motion.
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B. Defendants object to Plaintiff's Statement, to the extent that itfails to comply
with Rule 19-a by asserting legal arguments rather than facts, including but not limited to legal
arguments concerning the interpretation of the contracts at issue on this motion.
C. Defendants object to Plaintiff's Statement, to the extent that it makes assertions
that are not material to this motion.
D. Defendants object to Plaintiff's Statement, to the extent italleges multiple distinct
facts within a single numbered paragraph.
E. Defendants object to Plaintiff's Statement to the extent it fails to follow each
statement with a citation to evidence that supports the statement asserted.
F. Defendants object to Plaintiff's Statement to the extent that it cites or otherwise
relies upon any evidence that is inadmissible.
RESPONSES AND SPECIFIC OBJECTIONS
STATEMENT NO. 1. Flushing Endoscopy Center, LLC (the "Company")
was formed in 2011 in order to own and operate an ambulatory surgical center
located at 136-02 Roosevelt Avenue, Flushing New York, where itstill operates.
Affidavit of Michael Li, sworn to on December 30, 2021 (the "Li Affidavit") at
paragraph 6.
RESPONSE: Defendants do not dispute this statement.
STATEMENT NO. 2. The Company is a manager managed LLC pursuant
to an operating agreement (as amended, the "Operating Agreement"). Exhibit
"A".
2
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RESPONSE: Defendants do not dispute this statement, and refer the Court to the Operating
parties'
Agreement, attached as Exhibit A, for the true and correct terms of the original
agreement.
STATEMENT NO. 3. The original and founding members and managers
of the Company were Plaintiff, King-Chen Hon ("Hon"), Alan C. Yao ("Yao"),
Jackson Kuan ("Kuan"), Sing Chan ("Chan"), Che-Nan Chuang ("Chuang") and
Frontier Healthcare Associates ("Frontier"), collectively, the "Founding
Members". Exhibit "A", section 2.18. All of the individual members and
managers were medical doctors.
RESPONSE: Defendants do not dispute this statement.
STATEMENT NO. 4. On or about February 27, 2014, the members
executed a First Amendment to the Operating Agreement (the "First
Amendment"). Exhibit "B".
RESPONSE: Defendants do not dispute this statement, and refer the Court to the First
Amendment to the Operating Agreement, attached as Exhibit B, for the true and correct terms of
parties'
the agreement, including the Code of Conduct attached as Exhibit A thereto.
STATEMENT NO. 5. On or about December 19, 2016, the members
executed a Second Amendment to the Operating Agreement (the "Second
Amendment"). Exhibit "C".
RESPONSE: Defendants do not dispute this statement, and refer the Court to the Second
Amendment to the Operating Agreement, attached as Exhibit C, for the true and correct terms of
parties'
the agreement.
STATEMENT NO. 6. On or about June 1, 2017, the members executed a
Third Amendment to the Operating Agreement (the "Third Amendment"). Exhibit
"D".
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RESPONSE: Defendants do not dispute this statement, and refer the Court to the Third
Amendment to the Operating Agreement, attached as Exhibit D, for the true and correct terms of
parties'
the agreement.
STATEMENT NO. 7. Plaintiff originally owned 34% of the membership
interests of the Company ("Plaintiff's Membership Interests") and was the largest
percentage owner of the Company's membership interests. See Summons and
Defendants'
Complaint at paragraph 11 and Amended Answer at paragraph 11.
RESPONSE: For purposes of this motion, Defendants do not dispute this statement.
STATEMENT NO. 8. The Board of Managers of the Company (the
"Board") consisted of the Founding Members. Exhibit "D", section 2.
RESPONSE: For purposes of this motion, Defendants do not dispute this statement.
STATEMENT NO. 9. Pursuant to section 6 of the Operating Agreement,
each member of the Board served as manager until "the earlier of his or her death,
dissolution, liquidation, resignation, or removal in accordance with this
Agreement". Exhibit "D", section 2.
RESPONSE: Defendants refer the Court to the Operating Agreement, as amended, for the true
parties'
and correct terms of the agreement.
STATEMENT NO. 10. The Operating Agreement provided a detailed and
specific means for expelling or terminating members. Specifically, pursuant
Section 7.6 of the Operating Agreement, a member could be expelled only upon
the occurrence of an Expulsion Event. Exhibit "A", section 7.6.
RESPONSE: Defendants refer the Court to the Operating Agreement, as amended, for the true
parties'
and correct terms of the agreement.
STATEMENT NO. 11. Pursuant to the First Amendment to the Operating
Agreement, an Expulsion Event was deemed to include "a Member's violation of
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the Code of Conduct which the Board, in itssole discretion, determines warrants
expulsion of the Member ...". Exhibit "B", section 2.
RESPONSE: Defendants refer the Court to the Operating Agreement, as amended, for the true
parties'
and correct terms of the agreement.
STATEMENT NO. 12. Pursuant to Section 6.2 of the Operating
Agreement, an Extraordinary Decision, which included terminating a member
pursuant to Article 7.6 of the Operating Agreement upon the occurrence of an
Expulsion Event, required approval by a "Supermajority of the Board". Exhibit
"A", section 6.2.
RESPONSE: Defendants refer the Court to the Operating Agreement, as amended, for the true
parties'
and correct terms of the agreement.
STATEMENT NO. 13. The Operating Agreement originally provided that a
Board'
"'Super-majority of the means seventy-one 71% of the members of the
Board of Managers". Exhibit "A", Section 2.30.
RESPONSE: Defendants refer the Court to the Operating Agreement, as amended, for the true
parties'
and correct terms of the agreement.
STATEMENT NO. 14. Pursuant to the Third Amendment to the Operating
Board"
Agreement, a "Supermajority of the was re-defined as "the lessor of (a)
the holders of at least 71% of the issued and outstanding Membership Interests of
the Company (held by Managers), or (b) six (6) out of seven (7) members of the
Board."
Exhibit "D", section 1.
RESPONSE: Defendants refer the Court to the Operating Agreement, as amended, for the true
parties'
and correct terms of the agreement.
STATEMENT NO. 15. In or about April 2019, Elaine Chiu, a nurse
employed by the Company, made a complaint (the "Chiu Complaint"), alleging
that Plaintiff had verbally and physically assaulted her. Defendant Hon retained
Defendants'
Garfunkel Wild, P.C., current attorneys, who conducted an
investigation into the Chiu Complaint. Li Affidavit at paragraph 19.
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RESPONSE: For purposes of this motion, Defendants do not dispute this statement, except state
that Garfunkel Wild, P.C. was retained by Flushing Endoscopy Center, and not by Defendant
Hon individually.
STATEMENT NO. 16. On or about July 10, 2019, the Company provided
Plaintiff, Hon, Yao, Kuan and Chuang with a notice (the "Notice") advising that a
special meeting of the Members of the Company would be held on July 15, 2019
"to discuss the investigation of the alleged claims by Elaine Chiu against Michael
Li, M.D., and to consider whether any actions, such as a written warning or
expulsion, are warranted in accordance with the Company's Operating
Agreement, as amended by the First Amendment". Exhibit "E", Li Affidavit at
paragraph 21.
RESPONSE: For purposes of this motion, Defendants do not dispute this statement, and
"Notice."
refer the Court to the Exhibit E referenced therein for the true and correct terms of the
STATEMENT NO. 17. The Notice did not include Chan and an email from
Defendant's counsel advising of an option for Members of the Company to call-in
to a conference call number to attend the meeting was not sent to Chan. Li
Affidavit at paragraph 22, 26.
RESPONSE: For purposes of this motion, Defendants do not dispute this statement.
However, as explained in the Affidavit of King-Chen Hon.
STATEMENT NO. 18. On July 15, 2019, the Company held the special
meeting (the "Special Meeting") referenced in the Notice. Li Affidavit at
paragraph 23.
RESPONSE: For purposes of this motion, Defendants do not dispute this statement.
STATEMENT NO. 19. Plaintiff, Hon, Yao, Chuang and Frontier attended
the Special Meeting. Chan did not attend or vote. See Li Affidavit at paragraph
24.
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RESPONSE: For purposes of this motion, Defendants do not dispute this statement.
However, as set forth in response to Statement No. 20, Defendant Lana Choy also attended the
Special Meeting, and Defendant Jackson Kuan virtually attended the Special Meeting.
STATEMENT NO. 20. Defendant Lana Choy ("Choy"), who is married to
"attended"
Kuan, attended and Kuan the meeting via Facetime, but did not vote.
Li Affidavit at paragraph 24.
RESPONSE: Defendants object to this statement to the extent that Plaintiff asserts that Dr.
Kuan did not vote. Ms. Choy, who was given a power of attorney by her husband, Dr. Kuan,
was physically present, and voted for Plaintiff's expulsion on Dr. Kuan's behalf.
STATEMENT NO. 21. At the Special Meeting, Plaintiff voted against his
expulsion. Li Affidavit at paragraph 25.
RESPONSE: For purposes of this motion, Defendants do not dispute this statement.
STATEMENT NO. 22. Chan did not vote at the Special Meeting. Li
Affidavit at paragraph 25.
RESPONSE: For purposes of this motion, Defendants do not dispute this statement.
However, Defendants object to the conclusion that Chan was entitled to vote. As set forth in the
Affidavit of King-Chen Hon, by July 2019, Dr. Chan was no longer active as a board member in
the Center's operations, Dr. Chan had withdrawn from the Center, and Dr. Chan's interests had
been redeemed by the Center. Accordingly, because Dr. Chan no longer comported himself as a
member of the Center in any respect, his attendance and vote were not required at the Special
Meeting to expel Plaintiff from the Center. See generally Hon Aff.
STATEMENT NO. 23. Kuan did not vote bimself. Li Affidavit at paragraph
25.
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RESPONSE: See Response to Statement No. 20.
STATEMENT NO. 24. Less than 71% of the issued and outstanding
Membership Interests of the Company (held by Managers), and less than six (6)
out of seven (7) members of the Board voted in favor of Plaintiff's expulsion. Li
Affidavit at paragraph 25.
RESPONSE: Defendants object to the Plaintiff's insinuation that there was no supermajority in
favor of Plaintiff's expulsion. As set forth in the Affidavits of King-Chen Hon and Alan Yao,
two of the original managing members of the Center by July 2019, the Center's Third
Amendment to the Operating Agreement was revised so as to prevent Plaintiff from exercising
unilateral veto power over any extraordinary decisions, including his own expulsion, when all
the other members voted in favor of the extraordinary decision. The six out of seven
requirement simply reflected the reality of the membership at the time of its enactment.
However, ifcircumstances changed so as to reduce or increase the total number of members (X),
then the number of votes needed for a supermajority (X-1) would correspondingly shift to reflect
such changes. Thus, a vote to expel a member under circumstances where there were less than 7
members voting would still comport with the intent of the Third Amendment's supermajority
requirement so long as all members, with the exception of Plaintiff, voted for the same outcome.
Put simply, 5 out of a total of 6 members voting for Plaintiff's expulsion would still be an
enforceable, supermajority determination. See Hon Aff., ¶¶ 32-43; Yao Aff., ¶¶ 5-22.
STATEMENT NO. 25. The Company advised Plaintiff that he was expelled
from the Company. See Exhibit "G".
RESPONSE: For purposes of this motion, Defendants do not dispute this statement, and
refer the Court to the Exhibit G referenced therein for itstrue and correct terms.
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STATEMENT NO. 26. Plaintiff advised the Company that he rejected his
purported expulsion and that there was no basis to expel him under the Operating
Agreement, but the Company refused to rescind his expulsion. Li Affidavit at
paragraph 28.
RESPONSE: Defendants do not dispute that Plaintiff expressed his opinions on his
expulsion to the Defendants, and that the Defendants stood by their expulsion determination.
STATEMENT NO. 27. Chan and the Company entered into Redemption
Agreement dated March 13, 2019, whereby, among other things, the Company
agreed to purchase (redeem) Chan's 11% of membership interests in the
Company ("Chan's Membership Interests") for $381,957.00. Exhibit "K".
RESPONSE: For purposes of this motion, Defendants do not dispute this statement, and
refer the Court to the Exhibit K referenced therein for itstrue and correct terms.
STATEMENT NO. 28. On June 6, 2019, the Company submitted a Transfer
of Ownership Interest Notice (the "Transfer Notice") to New York State advising
of the proposed transfer of Chan's Membership Interests to the Company (along
with a separate transfer of Kuan's membership interests to two new members).
Exhibit "L".
RESPONSE: For purposes of this motion, Defendants do not dispute this statement, and
refer the Court to the Exhibit L referenced therein for itstrue and correct terms. However, as
explained in the accompanying memorandum of law, the formal notice to New York State has no
bearing on Dr. Chan's entitlement to vote at the Special Meeting, as it does not affect the rights
and obligations of the parties as fixed between themselves. See Memorandum of Law in
Opposition, pp. 27-29.
STATEMENT NO. 29. On June 28, 2019, New York State acknowledged
receipt of the Transfer Notice. Exhibit "L".
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RESPONSE: For purposes of this motion, Defendants do not dispute this statement, and
refer the Court to the Exhibit L referenced therein for itstrue and correct terms. However, as
explained in the accompanying memorandum of law, the formal notice to New York State has no
bearing on Dr. Chan's entitlement to vote at the Special Meeting, as it does not affect the rights
and obligations of the parties as fixed between themselves. See Memorandum of Law in
Opposition, pp. 27-29.
STATEMENT NO. 30. On September 18, 2019, New York State approved
the transfer of Chan's Membership Interests to the Company. Exhibit "L".
RESPONSE: For purposes of this motion, Defendants do not dispute this statement, and
refer the Court to the Exhibit L referenced therein for itstrue and correct terms. However, as
explained in the accompanying memorandum of law, the formal notice to New York State has no
bearing on Dr. Chan's relinquished rights to partake in any of the Center's affairs (including the
right to vote at the Special Meeting), as itdoes not affect the rights and obligations of the parties
as fixed between themselves under the March 2019 Redemption Agreement. See Memorandum
of Law in Opposition, pp. 27-29.
STATEMENT NO. 31. On November 23, 2019, the Company transferred
Chan's Membership Interests to the Company. Exhibit "M".
RESPONSE: Defendants dispute this statement. Dr. Chan's Membership Interests were
transferred in March 2019 under the Redemption Agreement. See Exhibit K to Li Aff; see also
Hon Aff., ¶¶ 29-31 and Exhibit 4 thereto.
STATEMENT NO. 32. On May 22, 2017, Yao emailed advising that
"please be advised that this email is to officially inform everyone that I am
cancelling my previous vote on the third amendment. I believe the supermajority
vote should be 65%". Then a week later, on May 31, 2017, Yao advised that
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"since we are all willing to work together again as a group, I am hereby cancelling
my previous objection to the current agreement. I sincerely hope we will all work
future."
together toward a bright and productive See Exhibit "N".
RESPONSE: For purposes of this motion, Defendants do not dispute these statements
stated in Dr. Yao's email, and refer the Court to the Exhibit N referenced therein for itstrue and
correct terms. However, there is further context that must be considered in connection with the
Third Amendment's interpretation, and thus, the Defendants reject any assertion that the Court
cannot override the 6 out of 7 supermajority requirement.
As explained in the Affidavit of Alan Yao, the intent of the Third Amendment was to
prevent Plaintiff from unilaterally exercising complete veto power when allother members voted
in favor of an extraordinary decision, such as Plaintiff's expulsion. Thus, itdid not matter ifthe
actual total number of members was 7, or some other higher or lower number following
additions, withdrawals, expulsions, or other suspensions of members. In other words, because
the total of 7 members only represented the number of members in the group at that time, itwas
never construed as a hard number that would remain the same ifothers joined or left the group.
Accordingly, since there were only 6 voting members at the Special Meeting, a vote of 5 out of 6
would have been sufficient to constitute a supermajority. See generally Yao Aff.
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DEFENDANTS'
COUNTER-STATEMENT OF UNDISPUTED
MATERIAL FACTS IN FURTHER OPPOSITION TO
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
1. The Center's original members executed the original Operating Agreement in 2014, which
members'
set forth the equity ownership in the Center, along with their rights, duties, and
obligations as members. See Hon Aff., ¶ 9, and Exhibit 1 thereto.
2. The Operating Agreement sets forth the origina1 respective interests:
MEMBER PERCENTAGE INTEREST
O RIB I
KING-CHEN HON, M.D. 9% $54,000
ALAN C. YAO, M.D. 12% $72,000
MICHAEL LI, M.D. 34% $204,000
JACKSON KUAN, M.D. 9% $54,000
SING CHAN, M.D. 21% $126,000
CHE-NAN CHUANG, M.D. 10% $60,000
FRONTIER HEALTHCARE 5% $30,000
ASSOCIATES, LLC
See Hon Aff., ¶ 10, and Exhibit 1 thereto.
3. Dr. Chan originally held a 21% membership interest, which was given in exchange for his
initial capital contribution of $126,000. See Hon Aff., ¶ I 1.
4. In mid-2017, Dr. Chan sold 4% of his interestto Dr. Hon, and 6% of his interest to Dr. Yao,
which thereby reduced Dr. Chan's total interest to 11%, and increased Dr. Yao's interests to
18%. See Hon Aff., ¶ 12.
5. Dr. Li held the largest membership interest at 34%. See Hon Aff., ¶ 13.
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FIL
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Ruling
ENCINO NEWCASTLE HOMEOWNERS ASSOCIATION VS DEL SOL PROPERTY MANAGEMENT, INC., ET AL.
Jul 10, 2024 |
21STCV12444
Case Number:
21STCV12444
Hearing Date:
July 10, 2024
Dept:
78
Superior Court of California
¿
County of Los Angeles
¿
Department 78
¿
¿
ENCINO NEWCASTLE HOMEOWNERS ASSOCIATION
,
Plaintiff
(s)
,
vs.
DEL SOL PROPERTY MANAGEMENT, INC.
, et al.,
Defendant
(
s
)
.
Case No.:¿
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Hearing Date:¿
July
10
, 2024
[TENTATIVE]
ORDER
CONTINUING MOTION FOR
OSC RE:
CONTEMPT
On May 15, 2024, defendant/cross-complainant D
el Sol Property Management, Inc.
(
D
el Sol
)
filed the instant motion for an OSC Re: Contempt based on
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HOA Management Professionals, Inc.s
(HMP)
purported failure to produce business records
pursuant
to
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he hearing date
is set
for July 10, 2024.
On May 28, 2024,
HMP
filed a motion to quash the
December 29,
2023
deposition subpoena for production of business records
issued by Del Sol
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Considering the relationship between Del Sols motion for contempt, and HMPs motion to quash its underlying basis, the Court
finds it in the interest of judicial efficiency and economy to continue Del Sols motion to be heard at the same time as HMPs related motion.
Therefore, on its own motion, the Court
CONTINUES
Del Sols
Hearing on Motion for an Order to Show Cause Re: Contempt (CCP 1209)
to
August 13,
2024
at
8
:30
a
.m. in Department 78 of Stanley Mosk Courthouse.
Moving Party is ordered to give notice
.
DATED:
July
9
, 2024
__________________________
Hon.
Michelle C. Kim
Judge of the Superior Court
PLEASE TAKE NOTICE:
"
Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
"
If a party intends to
submit
on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line SUBMIT followed by the case number. The body of the email must include the hearing date and time, counsels contact information, and the identity of the party
submitting
.
"
Unless all parties
submit
by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.
"
If the parties neither
submit
nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.
Ruling
JUSTIN SMITH VS ALLA ZORIKOVA, ET AL.
Jul 12, 2024 |
24STCV04100
Case Number:
24STCV04100
Hearing Date:
July 12, 2024
Dept:
32
JUSTIN SMITH,
Plaintiff,
v.
ALLA ZORIKOVA, et al.,
Defendants.
Case No.:
24STCV04100
Hearing Date:
July 12, 2024
[
TENTATIVE] order RE:
defendant alla zorikovas demurrer to complaint
BACKGROUND
On February 20, 2024, Plaintiff Justin Smith filed this action against Defendants Alla Zorikova, Olivia Jeong, and Joycelyn Yew. The complaint asserts causes of action for (1) violation of the Consumer Legal Remedies Act (CLRA), (2) violation of the Unfair Competition Law (UCL), and (3) fraud.
Plaintiff alleges that Defendants run an illegal dog breeding operation and operate out of Defendant Lews home in Los Angeles. Plaintiff alleges that Defendants falsely advertise their dogs as healthy, trained, and top quality. Plaintiff allegedly purchased a puppy from Defendants that turned out to be sick, dirty, and not properly socialized. Plaintiff allegedly contacted Defendant Zorikova for a refund, and Defendant Zorkova allegedly refused, instead instructing Plaintiff to sell the dog to another buyer himself.
On June 20, 2024, Defendant Zorikova filed the instant demurrer to the complaint. Plaintiff has not filed an opposition.
DISCUSSION
Proof of electronic service shall include
all
of the following:
(1) The electronic service address and the residence or business address of the person making the electronic service.
(2) The date of electronic service.
(3) The name and electronic service address of the person served.
(4) A statement that the document was served electronically.
(Code Civ. Proc., § 1013b(b).)
The proof of service accompanying Defendants demurrer does not include the electronic service address of the person making the electronic service,
i.e.
, Defendant Zorikova. (See Code Civ. Proc., § 1013b(b)(1).) Furthermore, the proof of service is ambiguous as to whether the documents were served by mail or email. The proof attests that the documents were served on counsel for all parties who have appeared in this action as follows, on 06/18/2024 via email, but simultaneously states that documents were SENT VIA U.S. MAIL/EMAIL. If the documents were mailed, it would be improper for Defendant Zorikova to execute the service because she is a party to the action. (See Code Civ. Proc., § 1013a(a) [person executing mail service must be over the age of 18 years and
not a party to the cause
].)
The demurrer is overruled for lack of proper service.
CONCLUSION
Defendant Alla Zorikovas demurrer is OVERRULED.
JUSTIN SMITH,
Plaintiff,
v.
ALLA ZORIKOVA, et al.,
Defendants.
Case No.: 24STCV04100
Hearing Date: July 12, 2024
[
TENTATIVE]
order RE:
defendant alla zorikovas motion to
quash service of summons
BACKGROUND
On February 20, 2024, Plaintiff
Justin Smith filed this action against Defendants Alla Zorikova, Olivia Jeong,
and Joycelyn Yew. The complaint asserts causes of action for (1) violation of
the Consumer Legal Remedies Act (CLRA), (2) violation of the Unfair Competition
Law (UCL), and (3) fraud.
Plaintiff alleges that Defendants
run an illegal dog breeding operation and operate out of Defendant Lews home
in Los Angeles. Plaintiff alleges that Defendants falsely advertise their dogs
as healthy, trained, and top quality. Plaintiff allegedly purchased a puppy
from Defendants that turned out to be sick, dirty, and not properly socialized.
Plaintiff allegedly contacted Defendant Zorikova for a refund, and Defendant
Zorkova allegedly refused, instead instructing Plaintiff to sell the dog to
another buyer himself.
On June 21, 2024, Defendant Zorikova
filed the instant motion to quash based on defective service of the summons and
complaint. Plaintiff has not filed an opposition.
LEGAL STANDARD
[T]he court in which an action is pending
has jurisdiction over a party from the time summons is served on him as
provided by Chapter 4 (commencing with Section 413.10). (Code Civ. Proc, §
410.50(a).) [A] court acquires jurisdiction over a party by proper service of
process or by that party's general appearance. (
In re Jennifer O.
(2010) 184 Cal.App.4th 539, 547.) Actual notice of a lawsuit is not a
substitute for proper service of process. (
Abers v. Rohrs
(2013) 217
Cal.App.4th 1199, 1206.) A defendant may serve and file a notice of motion to
quash service of summons on the ground that the court lacks jurisdiction. (Code
Civ. Proc., § 418.10(a).)
DISCUSSION
Even without proper service, a
defendant who makes a general appearance submits to the jurisdiction of the
court and waives any challenge to personal jurisdiction. (See
In re Jennifer
O., supra,
184 Cal.App.4th at p. 547;
ViaView, Inc. v. Retzlaff
(2016) 1 Cal.App.5th 198, 210.)
Code of Civil Procedure section 1014 lists
the acts which constitute a general appearance. (
Air Machine Com SRL v.
Superior Court
(2010) 186 Cal.App.4th 414, 425;
Humphrey v. Bewley
(2021) 69 Cal.App.5th 571, 580.) Section 1014 provides as follows: A defendant
appears in an action when the defendant answers,
demurs
, files a
notice of motion to strike, files a notice of motion to transfer pursuant to
Section 396b, moves for reclassification pursuant to Section 403.040, gives the
plaintiff written notice of appearance, or when an attorney gives notice of
appearance for the defendant. (Code Civ. Proc., § 1014.)
Defendant Zorikova filed a demurrer
on June 20, 2024, thus making a general appearance and consenting to the
Courts jurisdiction. As a result, the motion to quash is moot.
CONCLUSION
Defendant Alla Zorikovas motion to
quash service of summons is DENIED.
Ruling
Tpine Leasing Capital L.P. vs. Jarnail Multani
Jul 10, 2024 |
23CECG03197
Re: Tpine Leasing Capital L.P. v. Jarnail Multani
Superior Court Case No. 23CECG03197
Hearing Date: July 10, 2024 (Dept. 501)
Motion: by Defendant to Set Aside Default and Default Judgment
Tentative Ruling:
To deny the motion to set aside default and default judgment without prejudice.
(Code Civ. Proc., § 473, subd. (b).)
Explanation:
No Copy of Proposed Pleading
Application for relief from a judgment or court order must be filed timely (within six
months of the judgment or order) and must be accompanied by a copy of the answer
or other proposed pleading to be filed. (Code Civ. Proc., § 473 subd. (b).)
Here, defendant’s default was taken October 19, 2023, and judgment was
entered against him on March 21, 2024. Defendant filed this motion on April 22, 2024.
Defendant’s application was timely. However, defendant did not provide a proposed
responsive pleading pursuant to code.
No Mistake, Inadvertence, Surprise or Excusable Neglect
A judgment may be vacated and so may the entry of default that preceded it.
(Code Civ. Proc., § 473 subd. (b).) The court is empowered to relieve a party “upon any
terms as may be just … from a judgment, dismissal, order, or other proceeding taken
against him or her through his or her mistake, inadvertence, surprise, or excusable
neglect.” (Id.) This decision lies in the discretion of the court, and can only be exercised
if the moving party establishes a proper ground for relief, by the proper procedure, and
within the time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.)
Here, defendant did not demonstrate that his failure to respond was due to
mistake, inadvertence, surprise or excusable neglect. He stated that he learned of the
default entered against him but “was not aware of the nature of any pending litigation.”
(Multani Decl., ¶ 4.) Defendant incorrectly stated that the default should be “set aside
due to his mistake…in not responding to the lawsuit.” (Id.) He described no specific
mistake, inadvertence, surprise or excusable neglect that led to him not responding.
Defendant briefly stated that he was improperly served, however did not establish it as a
valid reason for not responding to the Complaint.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: DTT on 7/9/2024 .
(Judge’s initials) (Date)
Ruling
Richard Bartel vs Chicago Title Insurance Company
Jul 10, 2024 |
16CV02814
16CV02814
BARTEL v. CHICAGO TITLE INSURANCE COMPANY
(UNOPPOSED) PLAINTIFF BARTEL’S MOTION TO TAX COSTS
Given the parties representation that they are finalizing a stipulation, no tentative will be
posted.
Page 3 of 3
Ruling
KAREN BANG, ET AL. VS DILL VETERINARY HOSPITAL, INC., ET AL.
Jul 10, 2024 |
22STCV28025
Case Number:
22STCV28025
Hearing Date:
July 10, 2024
Dept:
53
Superior Court of California
County of Los Angeles Central District
Department 53
karen bang
, et al.;
Plaintiffs,
vs.
dill veterinary hospital, inc.
, et al.;
Defendants
.
Case No.:
22STCV28025
Hearing Date:
July 10, 2024
Time:
10:00 a.m.
[tentative] Order
RE:
plaintiffs motion to continue trial
MOVING PARTIES:
Plaintiffs Karen Bang and Linda Agajanian Otey
RESPONDING PARTIES:
Defendants Dill Veterinary Hospital, Inc., and Amber Oliver
Motion to Continue Trial
The court considered the moving, opposition, and reply papers filed in connection with this motion.
DISCUSSION
Plaintiffs Karen Bang and Linda Agajanian Otey (Plaintiffs) move the court for an order continuing trial in this action, currently scheduled to begin on August 14, 2024, and all related deadlines.
Defendants Dill Veterinary Hospital, Inc., and Amber Oliver (Defendants) have filed an opposition to Plaintiffs motion, stating that, while they do not oppose a brief trial continuance of 30-60 days, they oppose Plaintiffs request to continue all discovery and trial-related deadlines.
The court finds that Plaintiffs have shown good cause to continue the trial and all related deadlines based on (1) the unavailability of Plaintiffs lead counsel on August 14, 2024, (2) Plaintiffs counsels representation that the parties are in the process of scheduling various depositions, and (3) the courts consideration of the factors set forth in California Rules of Court, rule 3.1332, subdivision (d), including that (i) there have not been any prior continuances of trial, (ii) Defendants will not be unduly prejudiced by the continuance of trial and related deadlines, (iii) Plaintiffs lead counsel will be engaged in another multi-week trial, and (iv) the interests of justice favor the continuance.
(Cal. Rules of Ct., rule 3.1332, subds. (c)(3), (c)(6), (d)(2), (d)(5), (d)(8), (d)(10); Lipps Decl., ¶¶ 1, 2-3.)
The court therefore grants Plaintiffs motion and makes the orders set forth below.
ORDER
The court grants plaintiffs Karen Bang and Linda Agajanian Oteys motion to continue trial.
The court orders:
1.
The trial in this action is continued from August 14, 2024, to March 12, 2025, at 11:00 a.m., in Department 53.
2.
The Final Status Conference is continued from August 2, 2024, to February 27, 2025, at 8:30 a.m., in Department 53.
3.
All
discovery cut-off and discovery motion cut-off dates, and deadlines for the exchange of information concerning expert trial witnesses shall be based on the new trial date.¿
4.
The parties and their counsel shall hold a meeting, conference call, or videoconference to discuss and try to settle all issues in the case no later than January 17, 2025.
The court orders plaintiffs Karen Bang and Linda Agajanian Otey to give notice of this ruling.
IT IS SO ORDERED.
DATED:
July 10, 2024
_____________________________
Robert B. Broadbelt III
Judge of the Superior Court
Ruling
CALIFORNIA CREDITS GROUP, LLC, A DELAWARE LIMITED LIABILITY COMPANY VS FOSTER POULTRY FARMS, LLC, ET AL.
Jul 10, 2024 |
23STCV09536
Case Number:
23STCV09536
Hearing Date:
July 10, 2024
Dept:
54
Superior Court of California
County of Los Angeles
California Credits Group, LLC,
Plaintiff,
Case No.:
23STCV09536
vs.
Tentative Ruling
Foster Poultry Farms, LLC f/k/a Foster Poultry Farms, et al.,
Defendants.
Hearing Date: July 10, 2024
Department 54, Judge Maurice Leiter
Motion To Compel Further Responses to Requests for Production of Documents
Moving Party
: Plaintiff California Credits Group, LLC
Responding Party
: Defendant Foster Poultry Farms, LLC
T/R
:
THE MOTION IS GRANTED IN PART.
PLAINTIFF TO GIVE NOTICE.
If the parties wish to submit on the tentative, please email the courtroom at
SMCdept54@lacourt.org
with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing.
The Court considers the moving papers, opposition, and reply.
BACKGROUND
Plaintiff California Credits Group, LLC sued defendants Foster Poultry Farms, LLC and Foster Farms, LLC on April 28, 2023 for breach of contract and breach of the covenant of good faith and fair dealing.
As alleged in its complaint, Plaintiff provides tax credit services with a primary focus on California Enterprise Zone credits. (Compl., ¶ 9.) Defendant Foster Poultry was one of Plaintiffs clients; Defendant Foster Farms acquired Foster Poultry in June 2022. (
Id.
, ¶¶ 11-13.) Under the contract, Plaintiff would locate employees for Foster Poultry who, once employed, would generate tax credits for Foster Poultry based on Enterprise Zone economic incentives. (
Ibid.
) Foster Poultry agreed to pay Plaintiff a portion of the credits generated when the credits were utilized, that is, when they were actually applied to reduce Foster Poultrys tax obligations. (
Id.
, ¶ 14-15, Exhs. A-B [initial 2005 and amended 2007 contracts].)
The Contract anticipated the possibility that Foster Poultry might be acquired, and there may be tax credits that had been
generated
by Plaintiffs recommended hires, but not yet
utilized
. (
Id.
, ¶ 20.) Those credits utility might be cut off by an acquisition. (
Id.
, ¶¶ 21-22.)
In that case, the contract required that all pending credits be deemed utilized, and Plaintiff paid for their use, upon Foster Poultrys acquisition. (
Id.
, ¶ 22.)
The private equity firm Atlas Holdings, Inc. acquired Foster Poultry in June 2022. (
Id.
, ¶¶ 4-5.) The transaction was structured so that Foster Poultrys co-defendant, Foster Farms, acquired Foster Poultry, and Atlas in turn acquired Foster Farms. (
Id.
, ¶ 5.) Plaintiff alleges that when Atlas acquired Foster Poultry, it cut off $70 million in outstanding, unutilized tax credits generated by Plaintiff. (
Id.
, ¶ 30.)
On May 17, 2024, Plaintiff filed the instant motion to compel further responses to its Requests for Production (Set One) propounded on Foster Poultry.
ANALYSIS
Plaintiff moves for further responses to its Requests for Production (RPDs) Nos. 9-11 and 40. Plaintiff frames these as requests for communications relating to the June 2022 reorganizing transactions that suspended the tax credits allocated by [Plaintiff]. (MPA, 4:22-23.) Plaintiff contends these documents must be produced because they are critical to understanding the scope and significance of the June 2022 transactions and determining whether they constitute a Reorganization under the parties Agreements. (
Id.
, 26-28.)
Defendant argues that communications involving the June 2022 transactions are irrelevant to whether the transaction was a Reorganization for purposes of the parties contract. Defendant contends that all Plaintiff needs are the documents governing the transactions namely, the June 2022 Purchase Agreement (2022 Agreement). Defendant already has produced the 2022 Agreement. Defendant also objects that the requests are unduly burdensome, Plaintiff has not properly met and conferred about them, and, to the extent some portion of the materials might be relevant, Plaintiffs Requests should be narrowed after Plaintiff obtains its still-outstanding, more reasonable discovery.
Defendant has produced to Plaintiff excerpts of the 2022 Agreement that Plaintiff contends triggered the reorganization provisions of the Contract. Defendant contends this satisfies Plaintiffs asserted need to evaluate whether Defendants reorganization triggered the Contract.
Defendant cannot unilaterally identify what evidence Plaintiff needs. For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. [Citation.] ... [T]he scope of discovery extends to any information that reasonably might lead to other evidence that would be admissible at trial. Thus, the scope of permissible discovery is one of reason, logic and common sense. (
Lipton v. Superior Court
(1996) 48 Cal.App.4th 1599, 16111612, 56 Cal.Rptr.2d 341.)
Communications surrounding the execution of the 2022 Agreement may lead to admissible evidence about how its execution was expected to impact the terms of the Contract. Plaintiff may explore evidence of how the 2022 Agreement was executed, and whether those facts are relevant to the alleged breach.
Defendants have not shown undue burden.
Some of the phrasing of Plaintiffs requests is overbroad; the Court will sustain Defendants objections in part:
The Court grants Plaintiffs motion and orders Defendant to provide Code-compliant responses to all the disputed requests within thirty (30) days of this ruling, except:
1. Defendant need only produce documents created between June 1, 2021 and the filing of the complaint, and
2. The terms in connection with and in connection with or following are narrowed to as a result of for purposes of this order.
The Court finds Defendant was substantially justified in opposing Plaintiffs motion. The Court awards no sanctions.
Ruling
VALLEY FRESH PRODUCE, INC. vs JOSE BARRAGAN, et al
Jul 10, 2024 |
20CV01416
20CV01416
VALLEY FRESH PRODUCE, INC. v. BARRAGAN
(UNOPPOSED) MOTIONS TO BE RELIEVED AS COUNSEL
The unopposed motions to be relieved as counsel filed by Dianna L. Albini are granted as
they comply with California Rules of Court, Rule, 3.1362. The court will sign the proposed
orders.
Page 1 of 3
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Ruling
AMY A. MAXWELL VS BMW OF NORTH AMERICA, LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL.
Jul 09, 2024 |
24LBCV00120
Case Number:
24LBCV00120
Hearing Date:
July 9, 2024
Dept:
S27 Plaintiff has discovery motions scheduled for 7/09/24, 7/18/24, and 7/23/24.
There is also a status conference re: appointment of a discovery referee scheduled for 7/09/24.
In the interest of efficiency, the Court continues the 7/09/24 and 7/18/24 motions to 7/23/24, to be heard concurrently with the currently scheduled motion to deem RFAs admitted.
The Court takes off calendar the status conference re: appointment of discovery referee.
Upon further review, all pending motions are related motions to compel responses to initial discovery (and deem RFAs admitted), based on the contention that Defendant has not served any timely responses to outstanding discovery.
The Court finds this is not the type of discovery dispute that warrants appointment of a referee.
Plaintiff is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at
gdcdepts27@lacourt.org
indicating intention to submit on the tentative as directed by the instructions provided on the court website at
www.lacourt.org
.
If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar
.
If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative.
If the parties do not submit on the tentative, they should arrange to appear remotely.
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Preview
FILED: QUEENS COUNTY CLERK 09/22/2022 05:28 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 93 RECEIVEDINDEX NYSCEF: NO. 09/22/2022 719600/2019 FILED : ENS COUNTY CLERK : NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 02/25/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ---------------------------------------x : MICHAEL LI, individually and derivatively on behalf : of FLUSHING ENDOSCOPY CENTER, LLC, : . Index No. 719600/2019 Plaintiff, : -against- : : KING-CHEN HON, ALAN C. YAO, JACKSON : KUAN, LANA CHOY, AND FLUSHING : ENDOSCOPY CENTER, LLC, : : Defendants. : ---------------------------------------x DEFENDANTS' STATEMENT RESPONSE TO PLAINTIFF'S OF UNDISPUTED FACTS, AND COUNTER-STATEMENT OF UNDISPUTED FACTS IN FURTHER OPPOSITION TO THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Defendants, King-Chen Hon, Alan C. Yao, Jackson Kuan, Lana Choy, and Flushing Endoscopy Center, LLC (collectively, "Defendants"), submit this Response to Plaintiff's Rule 19-a Statement of dated 2022 ("Plaintiff's and as a Counter- Facts, January 3, Statement"), Statement of Undisputed Facts in further opposition to Plaintiff's motion for summary judgment: GENERAL OBJECTIONS A. Defendants object to Plaintiff's Statement to the extent itfails to comply with the concise" Commercial Division Rule 19-a's requirement of a "short and statement of "material facts," in that its 140 paragraphs result in a statement that is neither short nor concise, and alleges facts that are not material to this motion. 6376296v.2 1 of 17 FILED: QUEENS COUNTY CLERK 09/22/2022 05:28 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 93 RECEIVEDINDEX NYSCEF: NO. 09/22/2022 719600/2019 FILED : UEENS COUNTY CLERK : NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 02/25/2022 B. Defendants object to Plaintiff's Statement, to the extent that itfails to comply with Rule 19-a by asserting legal arguments rather than facts, including but not limited to legal arguments concerning the interpretation of the contracts at issue on this motion. C. Defendants object to Plaintiff's Statement, to the extent that it makes assertions that are not material to this motion. D. Defendants object to Plaintiff's Statement, to the extent italleges multiple distinct facts within a single numbered paragraph. E. Defendants object to Plaintiff's Statement to the extent it fails to follow each statement with a citation to evidence that supports the statement asserted. F. Defendants object to Plaintiff's Statement to the extent that it cites or otherwise relies upon any evidence that is inadmissible. RESPONSES AND SPECIFIC OBJECTIONS STATEMENT NO. 1. Flushing Endoscopy Center, LLC (the "Company") was formed in 2011 in order to own and operate an ambulatory surgical center located at 136-02 Roosevelt Avenue, Flushing New York, where itstill operates. Affidavit of Michael Li, sworn to on December 30, 2021 (the "Li Affidavit") at paragraph 6. RESPONSE: Defendants do not dispute this statement. STATEMENT NO. 2. The Company is a manager managed LLC pursuant to an operating agreement (as amended, the "Operating Agreement"). Exhibit "A". 2 6376296v.2 2 of 17 FILED: QUEENS COUNTY CLERK 09/22/2022 05:28 PM INDEX NO. 719600/2019 NYSCEF DOC.. NO. ENS 93 COWTY CM · 4 4 RECEIVEDINDEX NYSCEF: NO. 09/22/2022 719600/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 02/25/2022 RESPONSE: Defendants do not dispute this statement, and refer the Court to the Operating parties' Agreement, attached as Exhibit A, for the true and correct terms of the original agreement. STATEMENT NO. 3. The original and founding members and managers of the Company were Plaintiff, King-Chen Hon ("Hon"), Alan C. Yao ("Yao"), Jackson Kuan ("Kuan"), Sing Chan ("Chan"), Che-Nan Chuang ("Chuang") and Frontier Healthcare Associates ("Frontier"), collectively, the "Founding Members". Exhibit "A", section 2.18. All of the individual members and managers were medical doctors. RESPONSE: Defendants do not dispute this statement. STATEMENT NO. 4. On or about February 27, 2014, the members executed a First Amendment to the Operating Agreement (the "First Amendment"). Exhibit "B". RESPONSE: Defendants do not dispute this statement, and refer the Court to the First Amendment to the Operating Agreement, attached as Exhibit B, for the true and correct terms of parties' the agreement, including the Code of Conduct attached as Exhibit A thereto. STATEMENT NO. 5. On or about December 19, 2016, the members executed a Second Amendment to the Operating Agreement (the "Second Amendment"). Exhibit "C". RESPONSE: Defendants do not dispute this statement, and refer the Court to the Second Amendment to the Operating Agreement, attached as Exhibit C, for the true and correct terms of parties' the agreement. STATEMENT NO. 6. On or about June 1, 2017, the members executed a Third Amendment to the Operating Agreement (the "Third Amendment"). Exhibit "D". 3 6376296v.2 3 of 17 FILED: QUEENS COUNTY CLERK 09/22/2022 05:28 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 93 RECEIVEDINDEX NYSCEF: NO. 09/22/2022 719600/2019 FILED : ENS COUNTY CLERK : NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 02/25/2022 RESPONSE: Defendants do not dispute this statement, and refer the Court to the Third Amendment to the Operating Agreement, attached as Exhibit D, for the true and correct terms of parties' the agreement. STATEMENT NO. 7. Plaintiff originally owned 34% of the membership interests of the Company ("Plaintiff's Membership Interests") and was the largest percentage owner of the Company's membership interests. See Summons and Defendants' Complaint at paragraph 11 and Amended Answer at paragraph 11. RESPONSE: For purposes of this motion, Defendants do not dispute this statement. STATEMENT NO. 8. The Board of Managers of the Company (the "Board") consisted of the Founding Members. Exhibit "D", section 2. RESPONSE: For purposes of this motion, Defendants do not dispute this statement. STATEMENT NO. 9. Pursuant to section 6 of the Operating Agreement, each member of the Board served as manager until "the earlier of his or her death, dissolution, liquidation, resignation, or removal in accordance with this Agreement". Exhibit "D", section 2. RESPONSE: Defendants refer the Court to the Operating Agreement, as amended, for the true parties' and correct terms of the agreement. STATEMENT NO. 10. The Operating Agreement provided a detailed and specific means for expelling or terminating members. Specifically, pursuant Section 7.6 of the Operating Agreement, a member could be expelled only upon the occurrence of an Expulsion Event. Exhibit "A", section 7.6. RESPONSE: Defendants refer the Court to the Operating Agreement, as amended, for the true parties' and correct terms of the agreement. STATEMENT NO. 11. Pursuant to the First Amendment to the Operating Agreement, an Expulsion Event was deemed to include "a Member's violation of 4 6376296v.2 4 of 17 FILED: QUEENS COUNTY CLERK 09/22/2022 05:28 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 93 RECEIVEDINDEX NYSCEF: NO. 09/22/2022 719600/2019 FILED : UEENS COUNTY CLERK : NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 02/25/2022 the Code of Conduct which the Board, in itssole discretion, determines warrants expulsion of the Member ...". Exhibit "B", section 2. RESPONSE: Defendants refer the Court to the Operating Agreement, as amended, for the true parties' and correct terms of the agreement. STATEMENT NO. 12. Pursuant to Section 6.2 of the Operating Agreement, an Extraordinary Decision, which included terminating a member pursuant to Article 7.6 of the Operating Agreement upon the occurrence of an Expulsion Event, required approval by a "Supermajority of the Board". Exhibit "A", section 6.2. RESPONSE: Defendants refer the Court to the Operating Agreement, as amended, for the true parties' and correct terms of the agreement. STATEMENT NO. 13. The Operating Agreement originally provided that a Board' "'Super-majority of the means seventy-one 71% of the members of the Board of Managers". Exhibit "A", Section 2.30. RESPONSE: Defendants refer the Court to the Operating Agreement, as amended, for the true parties' and correct terms of the agreement. STATEMENT NO. 14. Pursuant to the Third Amendment to the Operating Board" Agreement, a "Supermajority of the was re-defined as "the lessor of (a) the holders of at least 71% of the issued and outstanding Membership Interests of the Company (held by Managers), or (b) six (6) out of seven (7) members of the Board." Exhibit "D", section 1. RESPONSE: Defendants refer the Court to the Operating Agreement, as amended, for the true parties' and correct terms of the agreement. STATEMENT NO. 15. In or about April 2019, Elaine Chiu, a nurse employed by the Company, made a complaint (the "Chiu Complaint"), alleging that Plaintiff had verbally and physically assaulted her. Defendant Hon retained Defendants' Garfunkel Wild, P.C., current attorneys, who conducted an investigation into the Chiu Complaint. Li Affidavit at paragraph 19. 5 6376296v.2 5 of 17 FILED: QUEENS COUNTY CLERK 09/22/2022 05:28 PM INDEX NO. 719600/2019 NYSCEF DOC.. NO. 93 UEENS COW'H CEE . RECEIVEDINDEX NYSCEF: NO. 09/22/2022 719600/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 02/25/2022 RESPONSE: For purposes of this motion, Defendants do not dispute this statement, except state that Garfunkel Wild, P.C. was retained by Flushing Endoscopy Center, and not by Defendant Hon individually. STATEMENT NO. 16. On or about July 10, 2019, the Company provided Plaintiff, Hon, Yao, Kuan and Chuang with a notice (the "Notice") advising that a special meeting of the Members of the Company would be held on July 15, 2019 "to discuss the investigation of the alleged claims by Elaine Chiu against Michael Li, M.D., and to consider whether any actions, such as a written warning or expulsion, are warranted in accordance with the Company's Operating Agreement, as amended by the First Amendment". Exhibit "E", Li Affidavit at paragraph 21. RESPONSE: For purposes of this motion, Defendants do not dispute this statement, and "Notice." refer the Court to the Exhibit E referenced therein for the true and correct terms of the STATEMENT NO. 17. The Notice did not include Chan and an email from Defendant's counsel advising of an option for Members of the Company to call-in to a conference call number to attend the meeting was not sent to Chan. Li Affidavit at paragraph 22, 26. RESPONSE: For purposes of this motion, Defendants do not dispute this statement. However, as explained in the Affidavit of King-Chen Hon. STATEMENT NO. 18. On July 15, 2019, the Company held the special meeting (the "Special Meeting") referenced in the Notice. Li Affidavit at paragraph 23. RESPONSE: For purposes of this motion, Defendants do not dispute this statement. STATEMENT NO. 19. Plaintiff, Hon, Yao, Chuang and Frontier attended the Special Meeting. Chan did not attend or vote. See Li Affidavit at paragraph 24. 6 6376296v.2 6 of 17 FILED: QUEENS COUNTY CLERK 09/22/2022 05:28 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 93 RECEIVEDINDEX NYSCEF: NO. 09/22/2022 719600/2019 FILED: ENS COUNTY CLERK 5 4:44 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 02/25/2022 RESPONSE: For purposes of this motion, Defendants do not dispute this statement. However, as set forth in response to Statement No. 20, Defendant Lana Choy also attended the Special Meeting, and Defendant Jackson Kuan virtually attended the Special Meeting. STATEMENT NO. 20. Defendant Lana Choy ("Choy"), who is married to "attended" Kuan, attended and Kuan the meeting via Facetime, but did not vote. Li Affidavit at paragraph 24. RESPONSE: Defendants object to this statement to the extent that Plaintiff asserts that Dr. Kuan did not vote. Ms. Choy, who was given a power of attorney by her husband, Dr. Kuan, was physically present, and voted for Plaintiff's expulsion on Dr. Kuan's behalf. STATEMENT NO. 21. At the Special Meeting, Plaintiff voted against his expulsion. Li Affidavit at paragraph 25. RESPONSE: For purposes of this motion, Defendants do not dispute this statement. STATEMENT NO. 22. Chan did not vote at the Special Meeting. Li Affidavit at paragraph 25. RESPONSE: For purposes of this motion, Defendants do not dispute this statement. However, Defendants object to the conclusion that Chan was entitled to vote. As set forth in the Affidavit of King-Chen Hon, by July 2019, Dr. Chan was no longer active as a board member in the Center's operations, Dr. Chan had withdrawn from the Center, and Dr. Chan's interests had been redeemed by the Center. Accordingly, because Dr. Chan no longer comported himself as a member of the Center in any respect, his attendance and vote were not required at the Special Meeting to expel Plaintiff from the Center. See generally Hon Aff. STATEMENT NO. 23. Kuan did not vote bimself. Li Affidavit at paragraph 25. 7 6376296v.2 7 of 17 FILED: QUEENS COUNTY CLERK 09/22/2022 05:28 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 93 RECEIVEDINDEX NYSCEF: NO. 09/22/2022 719600/2019 FILED : UEENS COUNTY CLERK 5 2 2 4 : 4 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 02/25/2022 RESPONSE: See Response to Statement No. 20. STATEMENT NO. 24. Less than 71% of the issued and outstanding Membership Interests of the Company (held by Managers), and less than six (6) out of seven (7) members of the Board voted in favor of Plaintiff's expulsion. Li Affidavit at paragraph 25. RESPONSE: Defendants object to the Plaintiff's insinuation that there was no supermajority in favor of Plaintiff's expulsion. As set forth in the Affidavits of King-Chen Hon and Alan Yao, two of the original managing members of the Center by July 2019, the Center's Third Amendment to the Operating Agreement was revised so as to prevent Plaintiff from exercising unilateral veto power over any extraordinary decisions, including his own expulsion, when all the other members voted in favor of the extraordinary decision. The six out of seven requirement simply reflected the reality of the membership at the time of its enactment. However, ifcircumstances changed so as to reduce or increase the total number of members (X), then the number of votes needed for a supermajority (X-1) would correspondingly shift to reflect such changes. Thus, a vote to expel a member under circumstances where there were less than 7 members voting would still comport with the intent of the Third Amendment's supermajority requirement so long as all members, with the exception of Plaintiff, voted for the same outcome. Put simply, 5 out of a total of 6 members voting for Plaintiff's expulsion would still be an enforceable, supermajority determination. See Hon Aff., ¶¶ 32-43; Yao Aff., ¶¶ 5-22. STATEMENT NO. 25. The Company advised Plaintiff that he was expelled from the Company. See Exhibit "G". RESPONSE: For purposes of this motion, Defendants do not dispute this statement, and refer the Court to the Exhibit G referenced therein for itstrue and correct terms. 8 6376296v.2 8 of 17 FILED: QUEENS COUNTY CLERK 09/22/2022 05:28 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 93 RECEIVED INDEX NYSCEF: NO. 09/22/2022 719600/2019 FILED : UEENS COUNTY CLERK : 4 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 02/25/2022 STATEMENT NO. 26. Plaintiff advised the Company that he rejected his purported expulsion and that there was no basis to expel him under the Operating Agreement, but the Company refused to rescind his expulsion. Li Affidavit at paragraph 28. RESPONSE: Defendants do not dispute that Plaintiff expressed his opinions on his expulsion to the Defendants, and that the Defendants stood by their expulsion determination. STATEMENT NO. 27. Chan and the Company entered into Redemption Agreement dated March 13, 2019, whereby, among other things, the Company agreed to purchase (redeem) Chan's 11% of membership interests in the Company ("Chan's Membership Interests") for $381,957.00. Exhibit "K". RESPONSE: For purposes of this motion, Defendants do not dispute this statement, and refer the Court to the Exhibit K referenced therein for itstrue and correct terms. STATEMENT NO. 28. On June 6, 2019, the Company submitted a Transfer of Ownership Interest Notice (the "Transfer Notice") to New York State advising of the proposed transfer of Chan's Membership Interests to the Company (along with a separate transfer of Kuan's membership interests to two new members). Exhibit "L". RESPONSE: For purposes of this motion, Defendants do not dispute this statement, and refer the Court to the Exhibit L referenced therein for itstrue and correct terms. However, as explained in the accompanying memorandum of law, the formal notice to New York State has no bearing on Dr. Chan's entitlement to vote at the Special Meeting, as it does not affect the rights and obligations of the parties as fixed between themselves. See Memorandum of Law in Opposition, pp. 27-29. STATEMENT NO. 29. On June 28, 2019, New York State acknowledged receipt of the Transfer Notice. Exhibit "L". 9 6376296v.2 9 of 17 FILED: QUEENS COUNTY CLERK 09/22/2022 05:28 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 93 RECEIVEDINDEX NYSCEF: NO. 09/22/2022 719600/2019 FILED : UEENS COUNTY CLERK : NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 02/25/2022 RESPONSE: For purposes of this motion, Defendants do not dispute this statement, and refer the Court to the Exhibit L referenced therein for itstrue and correct terms. However, as explained in the accompanying memorandum of law, the formal notice to New York State has no bearing on Dr. Chan's entitlement to vote at the Special Meeting, as it does not affect the rights and obligations of the parties as fixed between themselves. See Memorandum of Law in Opposition, pp. 27-29. STATEMENT NO. 30. On September 18, 2019, New York State approved the transfer of Chan's Membership Interests to the Company. Exhibit "L". RESPONSE: For purposes of this motion, Defendants do not dispute this statement, and refer the Court to the Exhibit L referenced therein for itstrue and correct terms. However, as explained in the accompanying memorandum of law, the formal notice to New York State has no bearing on Dr. Chan's relinquished rights to partake in any of the Center's affairs (including the right to vote at the Special Meeting), as itdoes not affect the rights and obligations of the parties as fixed between themselves under the March 2019 Redemption Agreement. See Memorandum of Law in Opposition, pp. 27-29. STATEMENT NO. 31. On November 23, 2019, the Company transferred Chan's Membership Interests to the Company. Exhibit "M". RESPONSE: Defendants dispute this statement. Dr. Chan's Membership Interests were transferred in March 2019 under the Redemption Agreement. See Exhibit K to Li Aff; see also Hon Aff., ¶¶ 29-31 and Exhibit 4 thereto. STATEMENT NO. 32. On May 22, 2017, Yao emailed advising that "please be advised that this email is to officially inform everyone that I am cancelling my previous vote on the third amendment. I believe the supermajority vote should be 65%". Then a week later, on May 31, 2017, Yao advised that 10 6376296v.2 10 of 17 FILED: QUEENS COUNTY CLERK 09/22/2022 05:28 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 93 RECEIVEDINDEX NYSCEF: NO. 09/22/2022 719600/2019 FILED : NS COUNTY CLERK : NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 02/25/2022 "since we are all willing to work together again as a group, I am hereby cancelling my previous objection to the current agreement. I sincerely hope we will all work future." together toward a bright and productive See Exhibit "N". RESPONSE: For purposes of this motion, Defendants do not dispute these statements stated in Dr. Yao's email, and refer the Court to the Exhibit N referenced therein for itstrue and correct terms. However, there is further context that must be considered in connection with the Third Amendment's interpretation, and thus, the Defendants reject any assertion that the Court cannot override the 6 out of 7 supermajority requirement. As explained in the Affidavit of Alan Yao, the intent of the Third Amendment was to prevent Plaintiff from unilaterally exercising complete veto power when allother members voted in favor of an extraordinary decision, such as Plaintiff's expulsion. Thus, itdid not matter ifthe actual total number of members was 7, or some other higher or lower number following additions, withdrawals, expulsions, or other suspensions of members. In other words, because the total of 7 members only represented the number of members in the group at that time, itwas never construed as a hard number that would remain the same ifothers joined or left the group. Accordingly, since there were only 6 voting members at the Special Meeting, a vote of 5 out of 6 would have been sufficient to constitute a supermajority. See generally Yao Aff. 11 6376296v.2 11 of 17 FILED: QUEENS COUNTY CLERK 09/22/2022 05:28 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/22/2022 yIgn . ENS COUNM CHE . INDEX NO. 71960O/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 02/25/2022 DEFENDANTS' COUNTER-STATEMENT OF UNDISPUTED MATERIAL FACTS IN FURTHER OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 1. The Center's original members executed the original Operating Agreement in 2014, which members' set forth the equity ownership in the Center, along with their rights, duties, and obligations as members. See Hon Aff., ¶ 9, and Exhibit 1 thereto. 2. The Operating Agreement sets forth the origina1 respective interests: MEMBER PERCENTAGE INTEREST O RIB I KING-CHEN HON, M.D. 9% $54,000 ALAN C. YAO, M.D. 12% $72,000 MICHAEL LI, M.D. 34% $204,000 JACKSON KUAN, M.D. 9% $54,000 SING CHAN, M.D. 21% $126,000 CHE-NAN CHUANG, M.D. 10% $60,000 FRONTIER HEALTHCARE 5% $30,000 ASSOCIATES, LLC See Hon Aff., ¶ 10, and Exhibit 1 thereto. 3. Dr. Chan originally held a 21% membership interest, which was given in exchange for his initial capital contribution of $126,000. See Hon Aff., ¶ I 1. 4. In mid-2017, Dr. Chan sold 4% of his interestto Dr. Hon, and 6% of his interest to Dr. Yao, which thereby reduced Dr. Chan's total interest to 11%, and increased Dr. Yao's interests to 18%. See Hon Aff., ¶ 12. 5. Dr. Li held the largest membership interest at 34%. See Hon Aff., ¶ 13. 12 6376296v.2 12 of 17 FILED: QUEENS COUNTY CLERK 09/22/2022 05:28 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 93 RECEIVED INDEX NYSCEF: NO. 09/22/2022 719600/2019 FIL