Preview
FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 06/26/2018
86/29/2887 13: 55 7323216971 EXCALIBUR GROUP LLC :PAGE 01
PHILIPS
OA: 9011206
Line: 50
PO: 8006439 / 10
TURNKEY CONSTRUCTION AGREEMENT
("Agreement" 28*
This Agreement ("Agreement") ismade as ofthe day of June 2007, between Philips
Medical Systems North America Company and Excalibur Gmup, LLC.
PARTIES/DEVINITIONS:
PROJECT: Drs. Rosenbaum Rosenfeld
Gemini 16 Power Renovation Project
CONTRACTOR: Excalibur Group, LLC
77 Orandview Avenue
West Edison, New Jersey08837
OWNER: Philips Medical Systems North America Company
22100 Bothell EverettHwy
Eothell,WA 98021
CUSTOMER: Drs. Rosenbaum/Rosenfeld
5"'
945 Ave.
New York, New York 10021-2661
WORKr Preparation of space atCUSTOMER's sitefor installation
of medical equipment
supplied OWNER documents
in the contract
as set forth - PhilipsOrder No.
("Equipment") by
9011206 / 50 (the "Contract Documents") which in
consist, order of precedence, ofthis
Agreement, CUSTOMER's Purchase Order No.PHERRS-04, dated 12/29/2006, and
CONTRACTOR's proposal #4178, dated 12/14/2006 ("Pmposal").
1. WORK
CONTRACTOR agrees toexecute the WORK in full accordance withthe Contract
Documents.
2, PAYMENT
2.1 (" Price"
OWNER shall pay theCONTRACTOR the sum ("ContractPrice')of One Million,
Two Hundred and Seventy-Four Thousand, Dollars ($1,274,000.00) for the
performance of the WORK. OWNER shallmake (withten percent(10%) retainage)
monthly progress payments forwork completed andaccepted in writingby OWNER's
Turnkey Program Manager or his
designate. The balanceof theContract Priceshallbe
payable upon completion by CONTRACTOR ofallpunch list
items and acceptanceof
the WORK by CUSTOMER.
2,2 CONTRACTOR shallprovidetothe OWNER waivers oflienor otherdocumentation
to verifypayment toallsuppliersof laboror materialfor the WORK as a condition
precedent tofinalpayment or, as to that
partofthe WORK which is inplaceas ofthe
date ofa progresspayment, to anyprogn:ss payment hercunder.
sormRttvrnkey(re/13/I34)
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NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 06/26/2018
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Line: 50
PO: 8006439 / 10
,ment nf an fnc theMT vaine nF the WARY ANTR A TAD
mk-enneracrnre)
. ceptoh¼en nwxmu he‰ Ahtru AÚTOR hepim the WGD
2.4 Payment of CONTRACTORS approved invoiceshallbe made by OWNER within
sixty®
30
days from dateof receipt.
3. SUPPLEMENTARY TERMS
3.1 The provisionsof Articles1, 2, 5,7, Sections3.2-3.4, 4.1,4.2, 4.4-4.7,11.7 and
Paragraphs 3.1.1, 3.1.3, 4.3.1-4.3.3, 12.2, 13.2-13.4 and 13.6 of the General
Conditions of AIA Document A401, 1987 Edition, entitledStandard Form of
Agreement Between Contractor and Subcontractor,("AIA Document A401") are
"Contractor"
incorporatedin thisAgreement by referenceand made a parthereof. in
"Subcontractor,"
AIA Document A401 shall refer
to OWNER. toCONTRACTOR.
Documents,"
"Subcontract to the Contract Documents. All approvalswhich are
"Amhitect"
requiredby the Contract Documents tobe made by shall,
however, be by
OWNER, jointly with any architect or engineer employed for the project.
CUSIDMER shallbe solely responsibleforproviding suitableareas for storageof
CONTRACTOR's materialsand equipment.
The Contract Documents shallgovern, as regardsthe WORK, over any contradictory
provisionsof AIA Document A401
4. SCHEDULE, PERMITS AND COMPLIANCE WITH LEGAL
REQUlREM,ENTS
4.1 Time isof the essence ofthisAgreement. CONTRACTOR agrees to complete the
detailed design of the room preparation WORK as specifiedin the Contract
Documents, obtainall necessaryapprovals and permits and complete the WORK so
thatinstallation
ofthe Equipment by OWNER can begin no later than . however,
If,
OWNBR does not instructCONTRACTOR to proceedwith the WORK immediately
upon deliveryof theexecuted Agreement to CONTRACTOR, the timeforcompletion
of the WORK shallbe adjusted
accordingly. ESTlrnATC) 17..0 D#5
4.2 CONTRACTOR agrees thatany liquidateddamages which may be specifiedtherein
which areincurred by OWNER as a result
of in
deficiencies the WORK ordelays
caused by CONTRACTOR incompleting the WORK shall
be paid or reimbursed to
OWNER by CONTRACTOR as set forthIn paragraph 3.3.1of ALA Document
A401. .
4.3 Either party may terminatethis Agreement without obligation tothe other if,for
CUSTOMER's convenience or as a resultof a change of for
specifications the
Equipment or for any othercause beyond CONTRACTOR's the
control, startofthe
WORK is delayedforany reason formore thanone year afterthe date set
forthinthe
first
paragraph of this
Agreement.
2
Formhtvrnkoy(05/13i04)
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NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 06/26/2018
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OA: 90112D6
Line: 50
PO2 8006439 / 10
4.4 Unless thecontrary isstatedelsewhere in theContractDocuments, CONTRAC'lDR
shall secure and ply for any occupancy
building, or othergovernmental permit,
(a)
fee or inspection
license, thatmay be required
forthe WORK, and (b) giveany notices
requiredby and assurethatthe WORK itself
and CONTRACTOR's performance of
the WORK comply with any ordinances,
statutes, regulations,
rules, building codesor
other governmental requirements applicableto the WORK. The drawings and
specifications
CUSTO R and OWNER have provided toCONTRACTOR as patt
of the Contract Documents are conceptualin nature. CONTRACTOR has overall
for
responsibility the construction
work requiredforsuccessfulinstallation
and operation
of the Equipment and shall,in be
particular, solelyresponsiblefor completing any
necessary or
detailing shop drawings, forassuringthatthe WORK is suf5cient
forthe
site to meet
the Equipment installation
requirements in the Contract
set forth Documents
and for compliance of thefinishedWORK with applicablebuilding codes and other
legal tequirements.
5. AUDIT PROVISION
If theContract Price to be paid under thisAgreement, now or through subsequent
change orders, exceeds ten thousand dollars, CONTRACTOR agrees to make
availableupon writtenrequest,tothe Secretary
of Health and Hutnan Services orupon
requestto theComptroller General of the United
States ofAmerica or any oftheirduly
authorizedrepresentativessuch and
contract(s) books,documents and recordsas are
necessary tocertifythe natureand extentof reimbursable costsunder the Medicare
laws.
6. INSURANCE
6.1 CONTRACTOR shallcarryinsurance in the
as set forth Contract Documents.
6.2 Ifthe Contract Documents do not specifymore extensivecoverage or. higher
limits,
CONTRAC1DR shall,at a minimum, maintainworker'scompensation insuranceinthe
amount requiredby applicablelaw,for all
CONTRACTOR's employees who perform
work under thisAgreement, as wellas policies
ofcommercial general insurance
liability
(including contractual,XCU and completed operations coverage) with a general
aggregateEmit ofnot per year
less than $2,000,000 and ofautomohtle coverage
liability
in an amount of not less than $2,000,000 combined singlelimit. A certificate
of
insuranceevidencing coverage in eachof thesecategoriesfrom carriers to
satisfactory
OWNER shallbe provided to OWNER upon request.
7. LIMITATION
In no event shall OWNER be liableto CONTRACTOR for special,indirector
consequentialdamages ofany kind but
including, not limitedto,lossofbusiness profit,
revenue orgoodwill arisingfrom anyfailureor matter
arisingunder this Agreement,nor
shallany claimor recoveryof any kindbe greaterin amountthan the Contract
Price.
3
Foimaiurnkey ('cs/i3/04)
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NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 06/26/2018
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OA: 9011206
Line: 50
PO: 8006439 / 10
8. CHANGES
THIS TS A FIXED PRICE CONTRACT. CHARGES OVER AND ABOVE THE
CONTRACT PRICE SHALL BE PAID BY OWNER ONLY IF OWNER HAS
AUTHORIZED SUCH CHARGES BY WRITTEN AMENDMENT TO THIS
AGREEMENT.
9. DISPUTES
controversyor claim out
arising ofor relating or the
to this contract, breech thereof,
Any
shallbe settled
by in
arbitration accordance withthe Construction[ndusby Arbitration
Rules of the American Arbitration
Association,and judgment upon the award tendered
theArbitrator(s)
may becateredin artyCourthavingjurisdiction
theteof
by
10. COMPLIANCE WITH LAW
CONTRACTOR representsand warrantsthat itwillconduct allwork relatedto the
subjectmatterof thisAgreement in accordancewithapplicableFederal,stateand local
statutesand regulations and that itis fullylicensedand qualified,as required by
applicablelaw,to undertake and performthe WORK.
AGREED AND ACCEPTED:
CONTRACTOR: OWNER‡
Excalibur Group, LLC. PhilipsMedical Systems North
America Company
Craig M. Gruchacz
.'
r
By:
' A/(
Its 're t ChiefFinance Officerand
H.ereun ly authorized SeniorVice President,Finance
(StefanRottke forCraig Gmehacz)
4
Formshatrllasy(Orn S/04)
FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 06/26/2018
OEAdministrator: C. Lowe j OrderData
OA#
Date OEP Received:
! 01/02/07
%efOrder
- Teresa
Region# / Name Ledfordstatue v! 100% DateBooked I IIIQ/~
Region#/ Name# 2 807- NewYorkMetru
--3oa
JoeLongo v Siebelorder# 14,829
AccountMgr 5t Germain
Laura 100% ! DateListed
AccountMgr#2 , BobMontalbine v
Fitzgerald
Specialist Ken, (NUC) 1PPo/'
f 100°/± _
Specialist#2 Borysiuk
Roman, (CT)
5garlata
ProjectManager& # Tony66099
SynergyDeal Rep& #
Sold To / Ship to
: OtherAgreement
~I
~ ~~ ~ ~~
Name ~ Rosenfield
Rosenbaumand ~ ~ ~ ~ ~~
Account
Corporate/Govt.
~
~ ~
Address~ ~ Avenue
1421Third
City-state- Zipj ~
~~
NewYork.
~ ~~NY10021 ~ ~ TERMS
~~ ~
~ ~~ ~~00 IFSPECIAL:
Bill To: PMC1
~~% 'V DESCRIBE
~ ~
___ Name> Philips MedicalCapital
Address 1111Old Eaateschool Road
City-State- Zip Wayne PA 19087 APPROVEDNETDAYS:
INTERNAL
QUOTE#
Quate # 1-DL63KF bookingquoteis rev# 8 I
REV# 5
PO# PHERRS-04
PODate1 12/29/06
.':'0::'.O1,:4fgv400/90:„';:',I:
>'.';: ':
,':::::::, TotalCustomerNotPrice
—
— $1,410400.0D
""I
PMCLeaseBlind DiscountAmount <= If PMCandno Blind discount - enter
j .001
PMCPOAmount
.PM'CGPt?AI)/?ount
r
-
PremierOption2
.m>er
Waitfor 5from SalesOrg
.. . l
CHSOrder - snw insu
P«C.,y g~ Does the ordercontainacceptancelanguageoutsideof that
O e offeredin an SBA,GPO or othermaster agreementwhere N
- approved
the terms been not by ZFM and Legal?
Z
Is there a right
of return,
exchange,or refundin the order
n
-- that has not been pre-approved
by finance?
g Does the orderincludea technology program?
refresh N
I h Does the ordercontainuptimeguarantees? N
O
Z 2. CONTINGENT LIABIITIES
-U
ITI Is additional
warranty fordelayeddeliveryor other
reasons
a N
includedin the order?
m b Is a performance
bond required? N
c Are bidguaranteesincludedin the order? N
d Are there cash penalties
includedin the order? N
dependent
is the discount upon multipleordersbeing N
booked?
3. PAYMENT TERMS Y/N
a Are standardbilling/payment
termson the order? Y
Completed By: ChristopherLowe Date: 1/4/2007
COMMENTS:
FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 06/26/2018
Return to: C. Lowe OA #
PhilipsMedical Systems North America
iteroii@fii'
ieimer tsK9Ki ~t5'nM
QUOTE # REV
CUSTOMER : Rosenbaum and Rosenfield 1-DL63KF 5
REG MNGR : Ledford - Teresa Statue
ACCT MNGR : St.Germain Laura 61215
ACCT MNGR 2: Bob Montalbine 198610
SPECIALIST : Ken Fitzgerald
SPECIALIST 2: Roman Borysiuk
PROJ MGR :
EQUIPMENT : 100523 Gemin Upgrade/Turnkey
CONTRACT : $1,410,400.00 TERMS
PMC 100 %
MARGIN :
APPROVEDNETDAYS:
Corporate Angount
PR : #DIV/0!
DISCOUNT: #DIV/0!
APPROVAL TO BOOK
(/ /
ZONE SERVICE VP I, 3Ó POS : | YES |
ZONE SALES VP I (I/~7 DAS : ####|
IF YES; HOW& BYWHOM7
#DIV/0!
COMMENTS / ISSUES
Equipment and on separate PMC Order Transmittals,willbe booked as separate orders- rev 5 , the
quote sigr
Turnkey
¹¹¹¹¹
FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 06/26/2018
Rav
25
ORDER SUMMARY WORKSHEET
1-DL63KF Ledford -Teresa
Teresa Statue 100%
Quotation# Internal# Regionno. 8 Name % Of Order
0UW 807 New York Metro- Joe Longo
O/A# Book Date Region no. 8 Name % of Order
St. GermainLaura 61215 100% Ken Fitzgerald 100%
Sales Representative& # % Of Order Specialist Name & # % Of Order
Bob Montalbine 198610 Roman Borysluk
Sales Representative8 # % Of Order Specialist Name& # % Of Order
SynergyRepresentative 8 #
Project Manager8 #
Rosenbaum and Rosenfield PET 100523 Gemin Upgrade/Turnkey
CustomerName ProductLine SystemType
Corporate/Govt.. Account By: C. Lowe
Other : Date: 1/2/2007
Contract Price $1,410,400.00
Additional Charges
SPO69 ( DESCRIPTIONHERE )
SP100 ( DESCRIPTIONHERE )
SP006 Contract Labor
SP104 INTEREST
SP001 Preight
SP003 Installation
SP007 Rigging Charges
SP011 Manuals
SP006 Turn Key $1,410,400.00
Total Additional Charges $1,410,400.00
Trade-ln ( OA or ERCC# )
Srd Party List
Total Order Discount
(incl. Promo's)
List Price Philips # s
$1,410,400.00
t41
cost
Margin
PriceRealization #DIV/01
Extended Warranty Program Serv Quote # 1-DL63KF
Extended Term Warranty Selling Price (WSP) $757,280
Extended Term Warranty List Price (WLP) $946,600
7
FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 06/26/2018
PHILlPS MEDICAL SYSTEMS
ACCOUNT MANAGERS ORDER ENTRY PACKAGE
y
Region# / SalesManagerName emwon
_s07 ~
wongo V 01/02/07
Date
Account / Territory Manager
Laura St Germain Quote# / Rev# 1-OLG3KF/R5booking
Specialist 1 : Ken Fitzgerald Specialist 2 : Robert Montalbine
Project Manager: Anthony Sgarlata ServiceManager: MikeJulian
Acet Mgr :
If this is a Synergy deal: ( CMS/ ADAC/ ATL )
Customer Rosenbaumand Rosenfeld Contract 8 Amount $2,916,000.00
3
Corporate/Govt.Account ( . JU PaymentTerms SP'"L T
OtherAgreement( SBA . IDN# ) Is thIs Pro Plus 70 Yes 0y
H No
Equipment PCR ElevaS Product Line :( PET: 15months
PO# PO Date
Install date: 6/30/2007 RequestedOperationalDate: S/30/06
( Pleaseenter in date Format ) ( Pleaseenter In date Format )
is thls an UPORADE7
0
If yes,MustProvide:
Site# (si
OA # (a)
SystemType(SPECT/PET}
SRN(PET/MIUCT)
EthemetID#(SPECT-Cleveland)
HOST/UNITID#
FSENAME& CELL# (SPECT/PET)
Does this venuIreAnnNcationsTraingna? Yes Pv
H No P
[]
Special InstaAsllon/ WarrantyComIIbnents -
Sp0597
Wyes DeserlbeReason
Additionel Comments
Turnkey Construction
CustomerContact Inforrnation
Name/ Title E4lan AtkIrees Phone # Fax8
Radiology or Dept Admin. Alfred Rosenbaum, MD assitnessues 212-744-6638
Chief Technologist
Radiologist / Doctor
Contact**
Key CustomerContact Alfred Rosenbaum, MD enammesamemm 212-744-5538
Warranty Letter To Alfred Rosenbaum, IM) 212-744-5638
Clinical Support Kit To Alfred Rosenbaum, MD gagltemastes 212-744-5638
*
Personresponsiblefor schedulingdeliveryand authorizingpayment
Last Updated:April20, 2006
R. Lawrence
Owner;R.
Owner;
FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 06/26/2018
Order
a
Package
PH L PS
Account: ROSENBAUM & ROSENFELD MDS SiebelRef #: 14829
Sales Rep: Laura St Germain
Solution: 100532 Gemini16 Power Upgrades
Costs OtherCosts NetBookingAd|ustments
(tal BookingMargIn
SystemCost: $000 InstallCost: $19,300
00 Trade-InFMVValue[•):
$0.00 CustomerListPrice: $1,410.400
00
ThirdPartyCost: $000 WarrantyCost:$45,996
00 ContractFeeCost:$O00 CustomerNetPrice: $1,410.400
00
LooseItemCost: $000 ServiceFMVValue(-):
$000 NetBooking: 00
$1,410,400
$1,410,400
Add'ICharges: 00 BlindDiscountCost(-): $0.00 OrderDIsc%: 0%
TotalCost: $1,410,400
00 ProfitAmount: $000
Margin%: 0%
SystemList: so00 Discount%: 0% LIstPrice: $1.410,430
00 AMDiscountDetail AdminFeePercent
LooseItemList: PromoDIscAmt: SubNetPrice: 00
$1,410,400 0% 0%
ThirdPartyList:
$000 PromoDisc%: 0% AdjustAmt: $000 $000 LockContractPrice?:
Add'IService:$1,410.400
00 Tradein Amount: NetPrice: 00
$1,410,400 BlindDiscount%: Y
Add'ISveDisc: SO00 O'A QuoteContractAmt:
NetalterSPOODisc: $1,410.400.00BilndDiscountAmt:$1.410,400
00
Trade-InFMV:
SO00
ServiceFMV·.
.:,
$000
'
Qty Product . Ust Price Not Price
.m
1 882301 Upgrades GEMINI16 Power ($0.00) ($0.00)
1 NPTA186 Gemini 16 Power
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ADAM AMER VS RITA NORIEGA, ET AL.
Jul 09, 2024 |
23STCV10432
Case Number:
23STCV10432
Hearing Date:
July 9, 2024
Dept:
54
Superior Court of California
County of Los Angeles
Adam Amer,
Plaintiff,
Case No.:
23STCV10432
vs.
Tentative Ruling
Rita Noriega, et al.,
Defendants.
Hearing Date: July 9, 2024
Department 54, Judge Maurice A. Leiter
Motion to Determine Good Faith Settlement
Moving Party
: Defendants On Central Realty Inc. dba Coldwell Banker Hallmark Realty, Sevada Mkrdichian, Redfin Corporation, and Alin Glogovicean
Responding Party
: None
T/R
:
DEFENDANTS MOTION TO FOR APPROVAL OF GOOD FAITH SETTLEMENT IS GRANTED.
DEFENDANTS TO 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 8:00 am on the day of the hearing.
The Court considers the moving papers.
No opposition was filed.
Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors upon giving notice in the manner provided in Code of Civil Procedure, section 1005(b).
(CCP § 877.6(a)(1).)
A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.
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The party contesting the settlement bears the burden of proving that the settlement is in bad faith.
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Defendants On Central Realty Inc. dba Coldwell Banker Hallmark Realty, Sevada Mkrdichian, Redfin Corporation, and Alin Glogovicean apply for approval of their good faith settlement with Plaintiffs. After extensive negotiations Defendants agreed to settle with Plaintiffs for $30,000. Defendants admit no fault, and state the settlement is proportionate to their potential share of liability. Only one cause of action was brought against them. There is no challenge to the settlement, and the non-settling defendants have defaulted. The Court finds that the settlement is in good faith.
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[TENTATIVE] RULING RE:
Plaintiff
Jonathan Neil & Associates, Inc.s Motion to Deem Admissions Admitted and for Monetary Sanctions (Attorney Fees and Costs) Against Defendant Ara Tovmassian in the Amount of $850.00 [Res ID # 0191].
I.
Background
On January 2, 2024, Plaintiff purportedly served Requests for Admission (RFAs), Set One, on Defendant Tovmassian. Responses to RFAs, Set One, were purportedly due on February 6, 2024, 35 days after purported service by mail on January 2, 2024.
Defendant Tovmassian allegedly failed to serve responses to RFAs, Set One, by February 6, 2024.
On March 20, 2024, based on Defendant Tovmassians alleged non-response to RFAs, Set One, Plaintiff filed a motion to deem the truth of RFAs, Set One, admitted as against Defendant Tovmassian. Plaintiffs motion also requests monetary sanctions in the amount of $850 against Defendant Tovmassian. Plaintiff served the motion on Defendant Tovmassian by mail that same day.
Defendant Tovmassian has failed to oppose Plaintiffs motion despite service.
Plaintiffs motion is now before the Court.
II.
Motion to Deem Truth of RFAs Admitted and Request for Sanctions
A.
Motion to Deem Truth of RFAs Admitted
:
GRANTED.
1.
Legal Standard
The discovering party can make a motion to deem as admitted any unanswered requests for admission or any requests answered in a late or unverified response. (See Code Civ. Proc., § 2033.280, subd. (b); Code Civ. Proc., § 2033.240, subd. (a) [RFA responses must be signed by responding party under oath]; see
Appleton v. Superior Court
(1988) 206 Cal.App.3d 632, 636 [unsworn response to RFAs is treated like no response].) These requests are not automatically deemed admitted; the discovery party must make the motion. (See Code Civ. Proc., § 2033.280, subd. (b).)
To establish this ground, a movant must show:
(1) Proper service (see Code Civ. Proc., § 2033.070);
(2) Expiration of the deadline for the initial response 30 days after service or on date agreed to by parties (see Code Civ. Proc., § 2033.250, subds. (a), (b)); and
(3) That (a) the responding party served no response (Code Civ. Proc., § 2033.280, subd. (b)), (b) the propounding party served a late response (Code Civ. Proc., § 2033.280, subd. (b)); or (3) the responding party served an unsworn response (see
Appleton v. Superior Court
,
supra
, 206 Cal.App.3d at p. 636 [unsworn response to RFAs is treated like no response]).
A court must deny a motion to compel initial discovery where the discovery sought is outside the scope of discovery. (See
CBS, Inc. v. Superior Court
(1968) 263 Cal.App.2d 12, 19; see also Code. Civ. Proc., § 2017.010 [scope of discovery].)
2.
Courts Determination
The Court finds in favor of Plaintiff.
The moving papers points and authorities contend that RFAs, Set One, was served on Defendant Tovmassian on January 2, 2024. (Mot., pp. 3 [service], 5 [signature, not sworn].) However, the points and authorities are unsworn and not entitled to evidentiary credence. (
In re Zeth S.
(2003) 31 Cal.4th 396, 413 [the unsworn statements of counsel are not evidence];
South Sutter, LLC v. LJ Sutter Partners, L.P.
(2011) 193 Cal.App.4th 634, 668, fn. 14 [unsworn arguments of counsel in a legal memorandum are not evidence].)
The original Natalia A. Minassian counsel declaration filed on March 20, 2024 did not support service on January 2, 2024, as to RFAs, Set One. However, at the initial hearing on July 2, 2024, the Court pointed out what appeared to
be an inadvertent failure to include substance in that declaration. The Court continued the hearing to July 9, 2024 to allow Plaintiffs counsel to address the error.
On July 3, 2024, Plaintiffs counsel filed a notice of errata and a revised Declaration of Natalia Minassian. It included both averments by counsel as well as attaching the Requests for Admission, along with the Proof of Service, showing service by mail on the Defendant on January 2, 2024. For this reason, the Court finds that service has been shown. Moreover, the evidence supports the fact that the discovery was served on the date alleged in the motion, and thus the Court finds no prejudice from the initial failure to attach the proof of service to the motion.
Second, Defendant has failed to oppose this motion, and did not appear at the initial hearing on July 2, 2024. The evidence in the moving papers sets forth that the Defendant did not respond, and this evidence is thus unrebutted.
Third, the court finds that the 17 RFAs are relevant to the facts involved in this case and are otherwise appropriate, clear and unambiguous.
Given these findings, the Court GRANTS Plaintiffs motion.
B.
Request for Sanctions
:
GRANTED.
1.
Legal Standard
The Court must award sanctions when a partys response is untimely, and the discovering party makes a motion to deem the requests admitted. (Code Civ. Proc., § 2033.280, subd. (c); see
Stover v. Bruntz
(2017) 12 Cal.App.5th 19, 31-32; see e.g.,
Appleton v. Superior Court
,
supra
, 206 Cal.App.3d at pp. 635-636 [sanctions are mandatory].)
The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348, subd. (a).)
2.
Courts Determination
The motion to deem admitted has been denied without prejudice, and Defendant has failed to respond or oppose this motion in any way. The requested sanctions of $850 for legal fees of $790 at an hourly rate of $395 and the $60 filing fee for the motion are eminently reasonable. Accordingly, the Court grants sanctions in the amount of $850.
III.
Conclusion
Plaintiff
Jonathan Neil & Associates, Inc.s Motion to Deem Admissions Admitted and for Monetary Sanctions (Attorney Fees and Costs) Against Defendant Ara Tovmassian in the Amount of $850.00 [Res ID # 0191] is GRANTED.
Sanctions in the amount of $850 are ordered to be paid to Hatkoff & Minassian within 30 days of this Order. Failure to do so could result in further sanctions as ordered by the Court.
Ruling
TALAL ALTAMIMI, ET AL. VS LIEF ORGANICS, LLC
Jul 10, 2024 |
23CHCV02417
Case Number:
23CHCV02417
Hearing Date:
July 10, 2024
Dept:
F47 Dept. F47
Date: 7/10/24
Case #23CHCV02417
MOTION TO STRIKE
Motion filed on 5/28/24.
MOVING PARTY: Defendant Lief Organics, LLC
RESPONDING PARTY: Plaintiff Mankind Essentials, Inc.
NOTICE: ok
RELIEF REQUESTED
: An order
striking the Second Amended Complaint filed by Plaintiff Mankind Essentials, Inc. and for sanctions against Plaintiff and Plaintiffs counsel in the amount of $4,042.50 pursuant to CCP 128.5.
RULING
: The motion is denied.
SUMMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of an agreement entered into by former plaintiffs Talal Altamimi, III (Altamimi) and Plaintiff Mankind Essentials, Inc. (Mankind/Plaintiff) and Defendant Lief Organics, LLC (Defendant) for the manufacture of fertility and dietary products for Mankind.
Based on three orders, Altamimi and Plaintiff paid Defendant deposits totaling $22,787.50.
Plaintiff alleges that Defendant failed to perform under the agreement.
On 8/11/23, Altamimi and Mankind filed this action against Defendant for: (1) Breach of Contract, (2) Fraudulent Deceit, (3) Breach of the Covenant of Good Faith and Fair Dealing, (4) Promissory Fraud and (5) Negligence.
After attempts to meet and confer regarding the issues Defendant had with the complaint were unsuccessful, on 11/20/23, Defendant filed and served a demurrer to the
original complaint.
On 12/28/23, 9 court days before the 1/11/24 hearing date on the demurrer, Plaintiff Mankind Essentials, Inc. (Plaintiff), alone, filed and served a First Amended Complaint which rendered the demurrer moot.
(
See
1/11/24 Minute Order citing CCP 472(a); CCP 1005(b)).
After meet and confer efforts failed to resolve the issues Defendant had with the First Amended Complaint, pursuant to an extension of time to respond to the First Amended Complaint, on 2/9/24, Defendant filed and served a demurrer to the 2
nd
, 4
th
and 5
th
causes of action in the First Amended Complaint.
On 3/7/24, the date a reply was due to be filed and served, Defendant filed and served a Notice of Non-Opposition to the demurrer.
See
CCP 1005(b)
On that same date and without any explanation, Plaintiff filed and served a late opposition to the demurrer.
On 3/8/24, Defendant filed and served a reply to the opposition.
On 3/14/24, the Court sustained the demurrer with 30 days leave to amend making a Second Amended Complaint due on or before 4/15/24.
(
See
3/14/24 Minute Order).
Plaintiff filed and served its Second Amended Complaint on 5/2/24.
Thereafter, Defendant contacted Plaintiff regarding the impropriety of filing the Second Amended Complaint beyond the deadline set by the Court and asked Plaintiffs counsel to withdraw the Second Amended Complaint.
(Bamford Decl. ¶¶6-7, Ex.C).
Plaintiff did not directly respond to the request to withdraw the Second Amended Complaint and has not withdrawn the pleading.
(Bamford Decl. ¶¶6-7).
On 5/28/24, Defendant filed and served the instant motion seeking an order striking the Second Amended Complaint filed by Plaintiff and for sanctions against Plaintiff and Plaintiffs counsel in the amount of $4,042.50 pursuant to CCP 128.5.
At the 5/29/24 Case Management Conference, former plaintiff Talal Altamimi represented that Plaintiff was no longer represented by counsel, although a substitution of attorney had not been filed.
(
See
5/29/24 Minute Order).
On 6/14/24, at the hearing on Defendants Motion to Compel Arbitration, Plaintiffs counsel represented that Plaintiffs counsel had substituted out; however, a substitution of attorney had still not been filed.
(
See
6/14/24 Minute Order).
At the same hearing, defense counsel represented to be in contact with Plaintiff; the parties had entered into a settlement agreement and requested the hearing on the motion be continued.
Id
.
Therefore, the hearing on the motion to compel arbitration was continued to 8/14/24.
Id
.
Despite the foregoing, on 7/2/24, Defendant filed a Notice of Non-Opposition to the instant motion to strike.
Also, on 7/2/24, Plaintiff filed a substitution of attorney indicating that former plaintiff, Talal Altamimi, is substituted in as counsel for Plaintiff.
As noted on the Substitution of Attorney form itself, unless Altamimi is an attorney, Altamimi cannot represent the corporate Plaintiff in court.
ANALYSIS
Defendant seeks to strike the Second Amended Complaint on the ground that it was not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court because it was filed beyond the 30-day deadline set forth in the Courts 3/14/24 order sustaining Defendants demurrer with 30 days leave to amend.
See
CCP 436(b).
Defendant also seeks sanctions against Plaintiff and Plaintiffs (former) counsel on the ground that the filing of the Second Amended Complaint beyond the court ordered deadline constitutes frivolous conduct.
See
CCP 128.5.
While the Second Amended Complaint was filed and served beyond the court-ordered deadline, Defendant has not shown that it has suffered any prejudice as a result of the late filing and service.
Similarly, the Court does not find the late filing and service of the Second Amended Complaint constitutes frivolous conduct which warrants the imposition of sanctions.
CONCLUSION
Based on the foregoing, the motion is denied.
As noted above, unless Talal Altamimi is an attorney, Altamimi cannot represent Plaintiff Mankind Essentials, Inc. in court.
Therefore, Altamimi cannot appear on behalf of Plaintiff at this hearing or any future hearing.
If Altamimi is not an attorney, Plaintiff
must obtain counsel before the next scheduled court hearing or the Court will set an Order to Show Cause as to why the action should not be dismissed.
Ruling
Edwards, et al. vs. General Motors LLC
Jul 10, 2024 |
22CV-0200334
EDWARDS, ET AL. VS. GENERAL MOTORS LLC
Case Number: 22CV-0200334
Tentative Ruling on Motion for Attorney Fees and Costs: Plaintiffs David and Stephanie
Edwards filed this action alleging violation of the Song-Beverly Consumer Warranty Act (“Act”)
against General Motors, LLC (“GM”) and Taylor Motors, Inc. (“TMI”) on August 4, 2022.
Following extensive motion practice, primarily concerning discovery issues, the parties settled the
matter on May 7, 2024. Pursuant to the Act, and the terms of the settlement agreement, Plaintiffs
are the prevailing party entitled to recover reasonable attorney fees and costs. Plaintiffs seek a total
of $319,464.80 in attorney fees and costs. This request consists of $149,773.50 in attorney fees
for 269.3 hours of work litigating this matter from August 5, 2022 to the present, a 2.0 multiplier,
and $19,917.80 in costs.
Objections to Evidence: Plaintiffs have raised 10 Objections to portions of the Declaration of
Cameron Major on the grounds that certain statements and supporting exhibits are improper
argument, lack foundation, are conclusory, and lack personal knowledge. The Objections are
OVERRULED.
Song-Beverly: The Song-Beverly Act contains a cost-shifting provision that specifically allows
prevailing buyers to recover their costs, including attorney’s fees. Civ. C. § 1794(d). The
attorney’s fee award is limited to the amount the court determines was reasonably incurred by the
buyer in commencing and prosecuting the action, based on actual time expended. The prevailing
buyer has the burden of proving the fees were both reasonably necessary to conduct the litigation
and reasonable in amount. Civil Code § 1794(d); Robertson v. Fleetwood Travel Trailers of
California, Inc., (2006) 144 Cal. App. 4th 785. The lodestar method applies to determining
attorney’s fees under the Song-Beverly Act. Id. at 817. When determining a reasonable attorney's
fee award, using the lodestar method, the judge begins by deciding the reasonable hours the
prevailing party's attorney spent on the case and multiplies that number by the prevailing hourly
rate for private attorneys in the community who conduct non-contingent litigation of the same
type. Doppes v Bentley Motors, Inc. (2009) 174 CA4th 967, 998. Plaintiff is entitled to be
compensated at rates that reflect the reasonable market value of their services in the community.
Serrano v. Unruh (1982) 32 Cal.3d 621, 643. In determining the amount of attorney's fees to
which a litigant is entitled, an experienced trial judge is the best judge of the value of professional
services rendered in his or her court. Granberry v. Islay Investments (1995) 9 Cal. 4th 738, 752.
Reasonableness of Hours: The court has discretion to decide which of the hours expended by the
attorneys were reasonably spent on litigation. Hammond v. Agran (2002) 99 Cal.App.4th 115,
133. The predicate of any attorney fee award is the necessity and usefulness of the conduct for
which compensation is sought. Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819,
846. The court’s focus in evaluating the fee request should be to provide a fee award reasonably
designed to completely compensate attorneys for the services provided. The starting point for this
determination is the attorney’s time records. Absent clear indication they are erroneous, verified
time records are entitled to credence. Horsford v. Board of Trustees of Calif. State Univ. (2005)
132 Cal.App.4th 359, 395-397.
Plaintiffs seek a total of $149,773.50 in attorney’s fees associated with 269.3 hours of work
performed by four attorneys and one unknown individual. Plaintiffs have submitted detailed time
records to support their request. Defendant challenges numerous specific entries. (Opposition pp.
8 – 11.) The Court has reviewed the billing records in detail, as well as Defendant’s objections.
Counsel billed a total of 269.3 hours to this litigation, which commenced August 4, 2022. The
parties engaged in extensive law and motion practice over 22 months of litigation. The matter
settled on the eve of trial for the maximum possible recovery under the law. The Court finds the
time spent was reasonably expended, with the following exceptions: 1) time billed by Erika
Kavicky – no information regarding this attorney’s qualifications and experience has been
provided, a total of 0.6 hours will be stricken for Ms. Kavicky’s time, and 2) time billed by Angela
Mason – no information regarding this individual’s position, qualifications or experience has been
provided, a total of 1.7 hours will be stricken for Ms. Mason’s time. The billing records Plaintiffs
provided show the following hours were reasonably expended: 133.9 by Deborah Horowitz, 115.4
by Joseph Kaufman and Associates, and 18.4 for the Kaufman and Kavicky firm. The total hours
reasonably expended on this matter are therefore 267.7.
Reasonableness of Rates: A reasonable hourly rate is determined by the prevailing rate charged
to attorneys of similar skill and experience in the relevant community. See PLCM Group, Inc. v.
Drexler (2000) 22 Cal.4th 1084, 1095. However, the court may also consider the attorney’s skill
and expertise, the nature of the work performed, the relevant area of expertise and the attorney’s
customary billing rates. Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 632.
A plaintiff seeking to recover hourly rates for out-of-town counsel that are higher than the local
rates must show (1) a good faith effort to find local counsel, and (2) demonstrate that hiring local
counsel was impracticable. Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1243.
The Court is the best judge of the value of professional services provided and may use its discretion
to apply rates in line with the market rates for the services provided. Ketchum v. Moses (2001) 24
Cal.4th 1122, 1132. This Court has extensive experience in presiding over Song Beverly actions
including motions for attorney’s fees, costs and expenses under Song Beverly. As such this Court
is aware of the reasonable hourly rates charged in actions of this nature. It is also aware of the
prior hourly rates found to be reasonable. Based on the Court’s extensive knowledge and
experience, it finds that reasonable hourly rates are $400 per hour for the partners, and $350 per
hour for the associate (Isaac Agyeman - 10 years of experience). The Court notes that Plaintiff
Anthony Edwards has submitted a Declaration indicating that he made a good faith effort to find
local counsel but was unable to do so. The Court has reviewed this voluminous case file, which
contains numerous discovery motions supported by attorney declarations regarding fees. It
appears that Plaintiff has not previously submitted a declaration regarding inability to find local
counsel in support of hourly rates above reasonable local rates. The Court has previously,
consistently, found a rate of $400 per hour a reasonable rate for partners in this matter. In the
interest of consistency within this case, and fairness to Defendants who have previously been
ordered to pay sanctions at the rate of $400 per hour, the Court will again find that $400 per hour
is a reasonable rate for partners in this matter. The Court finds that $350 per hour is a reasonable
rate for the associate in this matter. The Court notes that the billing records submitted do not break
out total hours billed by each individual partner and associate. Considering the large number of
billing entries, it is impractical for the Court to recalculate the correct billing at the approved rates.
Plaintiffs are ordered to submit recalculated totals using the Court’s approved rates.
Multiplier: Plaintiffs seek a 2.0 multiplier based on the results obtained and the contingent risks.
Adjustment factors that may be considered in awarding a multiplier include: 1) the novelty and
difficulty of the questions involved, 2) the skill displayed in presenting them, 3) the extent to which
the litigation precluded other employment, 4) the contingent nature of the fee award. Komarova
v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 348. Plaintiff has not
demonstrated a multiplier is warranted in this case. The issues involved in this litigation were
neither novel nor difficult. Counsel have demonstrated they are specialists, who are experienced
and skilled in this area of law, but this case involved routine issues under Song-Beverly. This
litigation precluded other employment to the extent any litigation would. The matter was taken on
a contingent fee basis as is all Song-Beverly litigation. The Court acknowledges Plaintiffs’
Counsel obtained the maximum award for the client. However, simply obtaining a positive result
in a factually and legally standard Song-Beverly case does not warrant a multiplier.
Costs and Expenses: The Song-Beverly Act provides that the court will award a successful
plaintiff a sum equal to the aggregate amount of costs and expenses, which have been determined
to have been reasonably incurred. Civil Code § 1794(d). Plaintiffs have requested an award of
costs and expenses in the amount of $19,917.80. However, the declarations submitted in support
of the moving papers only include itemized costs for a total of $16,247.81. The discrepancy is
addressed only in the Reply materials. (Plaintiffs submitted a Supplemental Declaration of Isaac
Agyeman which attaches a record of costs of $3,730 as Exhibit 6.) GM did not have the
opportunity to review and oppose those costs, as they were raised for the first time in the Reply
brief. Therefore, they will not be awarded. The remaining amount of $16,247.81 appears
reasonably incurred with the following exceptions, which will be stricken: 1) $602.26 for
Plaintiff’s mistakenly filing the Complaint twice, 2) $304.99 for Plaintiff’s “Re-Filing” Motion for
Leave to Amend, as it is a duplicate entry without explanation, 3) $180.16 and $592.73 for
Plaintiff’s Notice of Association of Counsel and Substitution of Attorney, respectively, as they are
business expenses of Counsel, not proper litigation expenses.
As for costs related to Taylor Motors, the Court notes the parties’ settlement agreement is between
and among David Edwards and Stephanie Edwards (“Plaintiffs”) and General Motors LLC and
Taylor Motors, Inc (“Defendants”). The agreement provides “Defendants shall pay Plaintiffs
attorney’s fees, costs, and expenses in an amount determined by the Court, by way of a single
noticed motion…” (Decl. Kaufman Ex. 1.) The Court finds the parties’ agreement contemplates
that Plaintiffs’ costs related to Taylor Motors would be included in the instant motion for fees and
costs. The total costs and expenses reasonably incurred are $14,567.67.
The Motion for Fees and Costs is GRANTED in part, as detailed above. Plaintiff is ordered to
prepare a proposed order consistent with the Court’s ruling. Plaintiff is also ordered to file and
serve a declaration which includes the recalculated totals for attorney fees using the Court-
approved rates detailed above. This matter is set for Monday August 12, 2024, at 8:30 a.m. in
Department 64 for review regarding the supplemental declaration and proposed order. If a
satisfactory supplemental declaration and proposed order are submitted at least five court days
prior to the continued date, the hearing may be vacated.
P.J. MCAULIFFE FAMILY PARTNERSHIP, L.P. VS. THE
TESTATE OR INTESTATE SUCCESSORS OF NORA
Ruling
BILLY SNOW VS DLK CONTRACTING, INC., ET AL.
Jul 09, 2024 |
6/18/2022 |
23SMCV00120
Case Number:
23SMCV00120
Hearing Date:
July 9, 2024
Dept:
I Code of Civil Procedure requires that a party suing a licensed architect for malpractice must obtain a certificate of merit (with certain exceptions not relevant here) before bringing suit.
The moving party, Fenske, contends that cross-complainant does not have such a certificate and brought a motion to dismiss on that basis.
Cross-complainant has filed no opposition, presumably because there is no such certificate.
Accordingly, the motion is GRANTED.
The cross-complaint against Fenske is DISMISSED.
Fenske to recover his costs.
Because Fenske is no longer a party, any motion involving him is MOOT and the stay, having served its purpose, is lifted.
Fenske is to prepare the written order of dismissal and lodge it with the court within 20 days.
Ruling
Miguel Aguilar vs General Motors, LLC.
Jul 10, 2024 |
23CV-03969
23CV-03969 Michael Aguilar v. General Motors, LLC
Demurrer by General Motors, LLC to Plaintiff’s First Amended Complaint’s Fifth Cause of Action
for Fraudulent Inducement (Concealment) because (1) It is barred by the statute of limitations,
(2) Fails to state facts sufficient to establish a cause of action, and (3) Fails to allege a
transactional relationship giving rise to a duty to disclose.
The Demurrer by General Motors, LLC to Plaintiff’s First Amended Complaint’s Fifth
Cause of Action for Fraudulent Inducement (Concealment) because (1) It is barred by the
statute of limitations, (2) Fails to state facts sufficient to establish a cause of action, and
(3) Fails to allege a transactional relationship giving rise to a duty to disclose is
SUSTAINED ON ALL GROUNDS WITH LEAVE TO AMEND to provide Plaintiff with an
opportunity to (1) Plead around the statute of limitations, (2) Plead fraudulent inducement
with specificity, and (3) Establish a relationship giving rise to a duty to disclose. The
Second Amended Complaint will be filed by November 29, 2024, to give Plaintiff sufficient
time to conduct discovery to obtain the facts necessary for Plaintiff to amend.
Motion by Defendant General Motors, LLC too Strike Punitive Damages Claim
The Motion by Defendant General Motors, LLC too Strike Punitive Damages Claim is
SUSTAINED WITH LEAVE TO AMEND to state a cause of action that supports a claim for
punitive damages and to allege the facts necessary to establish a punitive damages
claim. The Second Amended Complaint will be filed by November 29, 2024, to give
Plaintiff sufficient time to conduct discovery to obtain the facts necessary for Plaintiff to
amend.
Ruling
PHILLIP PHARELL MCGOWAN, ET AL. VS FAME GARDENS, LP
Jul 15, 2024 |
23STCV24498
Case Number:
23STCV24498
Hearing Date:
July 15, 2024
Dept:
20
Tentative Ruling
Judge Kevin C. Brazile
Department 20
Hearing Date:
July 15, 2024
Case Name:
McGowan, et al. v. Fame Gardens LP
Case No.:
23STCV24498
Matter:
OSC re: Default Judgment
Ruling:
The Default Judgment Application is denied without prejudice.
Plaintiffs to give notice.
This is a habitability matter. Plaintiffs
Phillip Pharell Mcgowan, Devon Monique Martinez, Joseph Manuel Eddins, and Cereniti Claire Martinez Mcgowan
seek a default judgment against Defendant Fame Gardens LP.
While Plaintiffs request $540,000 in damages, the Complaint fails to make any
specific
request for damages against Defendant.
This is problematic as [t]he relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint . . . . (Code Civ. Proc. § 580.) Further, phrases such as in an amount not less than do not give notice for the purposes of Code Civ. Proc. § 580. (
Electronic Funds Solutions, LLC v. Murphy
(2005) 134 Cal.App.4
th
1161, 1173-1174.) Code Civ. Proc. § 580 applies even when a defendant has defaulted after having filed an answer and having participated in discovery. (See
Greenup v. Rodman
(1986) 42 Cal.3d 822, 828;
Elec. Funds Sols., LLC v. Murphy
(2005) 134 Cal.App.4th 1161, 1175.) That a statement of damages was served is irrelevant as this is not a personal injury or wrongful death action.
Thus, Plaintiffs can either accept the jurisdictional minimum of $25,001
in damages or else amend the Complaints allegations as to damages, which would be a material change opening Defendants default. (
Cole v. Roebling Const. Co.
(1909) 156 Cal. 443;
Leo v. Dunlap
(1968) 260 Cal.App.2d 24, 27-28.)
Accordingly
, the Default Judgment Application is denied without prejudice.
Plaintiffs to give notice.
Preview
FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 06/26/2018 86/29/2887 13: 55 7323216971 EXCALIBUR GROUP LLC :PAGE 01 PHILIPS OA: 9011206 Line: 50 PO: 8006439 / 10 TURNKEY CONSTRUCTION AGREEMENT ("Agreement" 28* This Agreement ("Agreement") ismade as ofthe day of June 2007, between Philips Medical Systems North America Company and Excalibur Gmup, LLC. PARTIES/DEVINITIONS: PROJECT: Drs. Rosenbaum Rosenfeld Gemini 16 Power Renovation Project CONTRACTOR: Excalibur Group, LLC 77 Orandview Avenue West Edison, New Jersey08837 OWNER: Philips Medical Systems North America Company 22100 Bothell EverettHwy Eothell,WA 98021 CUSTOMER: Drs. Rosenbaum/Rosenfeld 5"' 945 Ave. New York, New York 10021-2661 WORKr Preparation of space atCUSTOMER's sitefor installation of medical equipment supplied OWNER documents in the contract as set forth - PhilipsOrder No. ("Equipment") by 9011206 / 50 (the "Contract Documents") which in consist, order of precedence, ofthis Agreement, CUSTOMER's Purchase Order No.PHERRS-04, dated 12/29/2006, and CONTRACTOR's proposal #4178, dated 12/14/2006 ("Pmposal"). 1. WORK CONTRACTOR agrees toexecute the WORK in full accordance withthe Contract Documents. 2, PAYMENT 2.1 (" Price" OWNER shall pay theCONTRACTOR the sum ("ContractPrice')of One Million, Two Hundred and Seventy-Four Thousand, Dollars ($1,274,000.00) for the performance of the WORK. OWNER shallmake (withten percent(10%) retainage) monthly progress payments forwork completed andaccepted in writingby OWNER's Turnkey Program Manager or his designate. The balanceof theContract Priceshallbe payable upon completion by CONTRACTOR ofallpunch list items and acceptanceof the WORK by CUSTOMER. 2,2 CONTRACTOR shallprovidetothe OWNER waivers oflienor otherdocumentation to verifypayment toallsuppliersof laboror materialfor the WORK as a condition precedent tofinalpayment or, as to that partofthe WORK which is inplaceas ofthe date ofa progresspayment, to anyprogn:ss payment hercunder. sormRttvrnkey(re/13/I34) FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 06/26/2018 66/ 29/2007 13: 55 7323216971 EXCALIBUR GROUP LLC PAGE 02 OA: 9011206 Line: 50 PO: 8006439 / 10 ,ment nf an fnc theMT vaine nF the WARY ANTR A TAD mk-enneracrnre) . ceptoh¼en nwxmu he‰ Ahtru AÚTOR hepim the WGD 2.4 Payment of CONTRACTORS approved invoiceshallbe made by OWNER within sixty® 30 days from dateof receipt. 3. SUPPLEMENTARY TERMS 3.1 The provisionsof Articles1, 2, 5,7, Sections3.2-3.4, 4.1,4.2, 4.4-4.7,11.7 and Paragraphs 3.1.1, 3.1.3, 4.3.1-4.3.3, 12.2, 13.2-13.4 and 13.6 of the General Conditions of AIA Document A401, 1987 Edition, entitledStandard Form of Agreement Between Contractor and Subcontractor,("AIA Document A401") are "Contractor" incorporatedin thisAgreement by referenceand made a parthereof. in "Subcontractor," AIA Document A401 shall refer to OWNER. toCONTRACTOR. Documents," "Subcontract to the Contract Documents. All approvalswhich are "Amhitect" requiredby the Contract Documents tobe made by shall, however, be by OWNER, jointly with any architect or engineer employed for the project. CUSIDMER shallbe solely responsibleforproviding suitableareas for storageof CONTRACTOR's materialsand equipment. The Contract Documents shallgovern, as regardsthe WORK, over any contradictory provisionsof AIA Document A401 4. SCHEDULE, PERMITS AND COMPLIANCE WITH LEGAL REQUlREM,ENTS 4.1 Time isof the essence ofthisAgreement. CONTRACTOR agrees to complete the detailed design of the room preparation WORK as specifiedin the Contract Documents, obtainall necessaryapprovals and permits and complete the WORK so thatinstallation ofthe Equipment by OWNER can begin no later than . however, If, OWNBR does not instructCONTRACTOR to proceedwith the WORK immediately upon deliveryof theexecuted Agreement to CONTRACTOR, the timeforcompletion of the WORK shallbe adjusted accordingly. ESTlrnATC) 17..0 D#5 4.2 CONTRACTOR agrees thatany liquidateddamages which may be specifiedtherein which areincurred by OWNER as a result of in deficiencies the WORK ordelays caused by CONTRACTOR incompleting the WORK shall be paid or reimbursed to OWNER by CONTRACTOR as set forthIn paragraph 3.3.1of ALA Document A401. . 4.3 Either party may terminatethis Agreement without obligation tothe other if,for CUSTOMER's convenience or as a resultof a change of for specifications the Equipment or for any othercause beyond CONTRACTOR's the control, startofthe WORK is delayedforany reason formore thanone year afterthe date set forthinthe first paragraph of this Agreement. 2 Formhtvrnkoy(05/13i04) FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 06/26/2018 06/29/2007 13:55 73232169 71 EXCALIBUR GROUP LLu PAGE 03 OA: 90112D6 Line: 50 PO2 8006439 / 10 4.4 Unless thecontrary isstatedelsewhere in theContractDocuments, CONTRAC'lDR shall secure and ply for any occupancy building, or othergovernmental permit, (a) fee or inspection license, thatmay be required forthe WORK, and (b) giveany notices requiredby and assurethatthe WORK itself and CONTRACTOR's performance of the WORK comply with any ordinances, statutes, regulations, rules, building codesor other governmental requirements applicableto the WORK. The drawings and specifications CUSTO R and OWNER have provided toCONTRACTOR as patt of the Contract Documents are conceptualin nature. CONTRACTOR has overall for responsibility the construction work requiredforsuccessfulinstallation and operation of the Equipment and shall,in be particular, solelyresponsiblefor completing any necessary or detailing shop drawings, forassuringthatthe WORK is suf5cient forthe site to meet the Equipment installation requirements in the Contract set forth Documents and for compliance of thefinishedWORK with applicablebuilding codes and other legal tequirements. 5. AUDIT PROVISION If theContract Price to be paid under thisAgreement, now or through subsequent change orders, exceeds ten thousand dollars, CONTRACTOR agrees to make availableupon writtenrequest,tothe Secretary of Health and Hutnan Services orupon requestto theComptroller General of the United States ofAmerica or any oftheirduly authorizedrepresentativessuch and contract(s) books,documents and recordsas are necessary tocertifythe natureand extentof reimbursable costsunder the Medicare laws. 6. INSURANCE 6.1 CONTRACTOR shallcarryinsurance in the as set forth Contract Documents. 6.2 Ifthe Contract Documents do not specifymore extensivecoverage or. higher limits, CONTRAC1DR shall,at a minimum, maintainworker'scompensation insuranceinthe amount requiredby applicablelaw,for all CONTRACTOR's employees who perform work under thisAgreement, as wellas policies ofcommercial general insurance liability (including contractual,XCU and completed operations coverage) with a general aggregateEmit ofnot per year less than $2,000,000 and ofautomohtle coverage liability in an amount of not less than $2,000,000 combined singlelimit. A certificate of insuranceevidencing coverage in eachof thesecategoriesfrom carriers to satisfactory OWNER shallbe provided to OWNER upon request. 7. LIMITATION In no event shall OWNER be liableto CONTRACTOR for special,indirector consequentialdamages ofany kind but including, not limitedto,lossofbusiness profit, revenue orgoodwill arisingfrom anyfailureor matter arisingunder this Agreement,nor shallany claimor recoveryof any kindbe greaterin amountthan the Contract Price. 3 Foimaiurnkey ('cs/i3/04) FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 06/26/2018 13: 55 7323216971 EXCALIBUR GROUP LLC PAGE 04 OA: 9011206 Line: 50 PO: 8006439 / 10 8. CHANGES THIS TS A FIXED PRICE CONTRACT. CHARGES OVER AND ABOVE THE CONTRACT PRICE SHALL BE PAID BY OWNER ONLY IF OWNER HAS AUTHORIZED SUCH CHARGES BY WRITTEN AMENDMENT TO THIS AGREEMENT. 9. DISPUTES controversyor claim out arising ofor relating or the to this contract, breech thereof, Any shallbe settled by in arbitration accordance withthe Construction[ndusby Arbitration Rules of the American Arbitration Association,and judgment upon the award tendered theArbitrator(s) may becateredin artyCourthavingjurisdiction theteof by 10. COMPLIANCE WITH LAW CONTRACTOR representsand warrantsthat itwillconduct allwork relatedto the subjectmatterof thisAgreement in accordancewithapplicableFederal,stateand local statutesand regulations and that itis fullylicensedand qualified,as required by applicablelaw,to undertake and performthe WORK. AGREED AND ACCEPTED: CONTRACTOR: OWNER‡ Excalibur Group, LLC. PhilipsMedical Systems North America Company Craig M. Gruchacz .' r By: ' A/( Its 're t ChiefFinance Officerand H.ereun ly authorized SeniorVice President,Finance (StefanRottke forCraig Gmehacz) 4 Formshatrllasy(Orn S/04) FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 06/26/2018 OEAdministrator: C. Lowe j OrderData OA# Date OEP Received: ! 01/02/07 %efOrder - Teresa Region# / Name Ledfordstatue v! 100% DateBooked I IIIQ/~ Region#/ Name# 2 807- NewYorkMetru --3oa JoeLongo v Siebelorder# 14,829 AccountMgr 5t Germain Laura 100% ! DateListed AccountMgr#2 , BobMontalbine v Fitzgerald Specialist Ken, (NUC) 1PPo/' f 100°/± _ Specialist#2 Borysiuk Roman, (CT) 5garlata ProjectManager& # Tony66099 SynergyDeal Rep& # Sold To / Ship to : OtherAgreement ~I ~ ~~ ~ ~~ Name ~ Rosenfield Rosenbaumand ~ ~ ~ ~ ~~ Account Corporate/Govt. ~ ~ ~ Address~ ~ Avenue 1421Third City-state- Zipj ~ ~~ NewYork. ~ ~~NY10021 ~ ~ TERMS ~~ ~ ~ ~~ ~~00 IFSPECIAL: Bill To: PMC1 ~~% 'V DESCRIBE ~ ~ ___ Name> Philips MedicalCapital Address 1111Old Eaateschool Road City-State- Zip Wayne PA 19087 APPROVEDNETDAYS: INTERNAL QUOTE# Quate # 1-DL63KF bookingquoteis rev# 8 I REV# 5 PO# PHERRS-04 PODate1 12/29/06 .':'0::'.O1,:4fgv400/90:„';:',I: >'.';: ': ,':::::::, TotalCustomerNotPrice — — $1,410400.0D ""I PMCLeaseBlind DiscountAmount <= If PMCandno Blind discount - enter j .001 PMCPOAmount .PM'CGPt?AI)/?ount r - PremierOption2 .m>er Waitfor 5from SalesOrg .. . l CHSOrder - snw insu P«C.,y g~ Does the ordercontainacceptancelanguageoutsideof that O e offeredin an SBA,GPO or othermaster agreementwhere N - approved the terms been not by ZFM and Legal? Z Is there a right of return, exchange,or refundin the order n -- that has not been pre-approved by finance? g Does the orderincludea technology program? refresh N I h Does the ordercontainuptimeguarantees? N O Z 2. CONTINGENT LIABIITIES -U ITI Is additional warranty fordelayeddeliveryor other reasons a N includedin the order? m b Is a performance bond required? N c Are bidguaranteesincludedin the order? N d Are there cash penalties includedin the order? N dependent is the discount upon multipleordersbeing N booked? 3. PAYMENT TERMS Y/N a Are standardbilling/payment termson the order? Y Completed By: ChristopherLowe Date: 1/4/2007 COMMENTS: FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 06/26/2018 Return to: C. Lowe OA # PhilipsMedical Systems North America iteroii@fii' ieimer tsK9Ki ~t5'nM QUOTE # REV CUSTOMER : Rosenbaum and Rosenfield 1-DL63KF 5 REG MNGR : Ledford - Teresa Statue ACCT MNGR : St.Germain Laura 61215 ACCT MNGR 2: Bob Montalbine 198610 SPECIALIST : Ken Fitzgerald SPECIALIST 2: Roman Borysiuk PROJ MGR : EQUIPMENT : 100523 Gemin Upgrade/Turnkey CONTRACT : $1,410,400.00 TERMS PMC 100 % MARGIN : APPROVEDNETDAYS: Corporate Angount PR : #DIV/0! DISCOUNT: #DIV/0! APPROVAL TO BOOK (/ / ZONE SERVICE VP I, 3Ó POS : | YES | ZONE SALES VP I (I/~7 DAS : ####| IF YES; HOW& BYWHOM7 #DIV/0! COMMENTS / ISSUES Equipment and on separate PMC Order Transmittals,willbe booked as separate orders- rev 5 , the quote sigr Turnkey ¹¹¹¹¹ FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 06/26/2018 Rav 25 ORDER SUMMARY WORKSHEET 1-DL63KF Ledford -Teresa Teresa Statue 100% Quotation# Internal# Regionno. 8 Name % Of Order 0UW 807 New York Metro- Joe Longo O/A# Book Date Region no. 8 Name % of Order St. GermainLaura 61215 100% Ken Fitzgerald 100% Sales Representative& # % Of Order Specialist Name & # % Of Order Bob Montalbine 198610 Roman Borysluk Sales Representative8 # % Of Order Specialist Name& # % Of Order SynergyRepresentative 8 # Project Manager8 # Rosenbaum and Rosenfield PET 100523 Gemin Upgrade/Turnkey CustomerName ProductLine SystemType Corporate/Govt.. Account By: C. Lowe Other : Date: 1/2/2007 Contract Price $1,410,400.00 Additional Charges SPO69 ( DESCRIPTIONHERE ) SP100 ( DESCRIPTIONHERE ) SP006 Contract Labor SP104 INTEREST SP001 Preight SP003 Installation SP007 Rigging Charges SP011 Manuals SP006 Turn Key $1,410,400.00 Total Additional Charges $1,410,400.00 Trade-ln ( OA or ERCC# ) Srd Party List Total Order Discount (incl. Promo's) List Price Philips # s $1,410,400.00 t41 cost Margin PriceRealization #DIV/01 Extended Warranty Program Serv Quote # 1-DL63KF Extended Term Warranty Selling Price (WSP) $757,280 Extended Term Warranty List Price (WLP) $946,600 7 FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 06/26/2018 PHILlPS MEDICAL SYSTEMS ACCOUNT MANAGERS ORDER ENTRY PACKAGE y Region# / SalesManagerName emwon _s07 ~ wongo V 01/02/07 Date Account / Territory Manager Laura St Germain Quote# / Rev# 1-OLG3KF/R5booking Specialist 1 : Ken Fitzgerald Specialist 2 : Robert Montalbine Project Manager: Anthony Sgarlata ServiceManager: MikeJulian Acet Mgr : If this is a Synergy deal: ( CMS/ ADAC/ ATL ) Customer Rosenbaumand Rosenfeld Contract 8 Amount $2,916,000.00 3 Corporate/Govt.Account ( . JU PaymentTerms SP'"L T OtherAgreement( SBA . IDN# ) Is thIs Pro Plus 70 Yes 0y H No Equipment PCR ElevaS Product Line :( PET: 15months PO# PO Date Install date: 6/30/2007 RequestedOperationalDate: S/30/06 ( Pleaseenter in date Format ) ( Pleaseenter In date Format ) is thls an UPORADE7 0 If yes,MustProvide: Site# (si OA # (a) SystemType(SPECT/PET} SRN(PET/MIUCT) EthemetID#(SPECT-Cleveland) HOST/UNITID# FSENAME& CELL# (SPECT/PET) Does this venuIreAnnNcationsTraingna? Yes Pv H No P [] Special InstaAsllon/ WarrantyComIIbnents - Sp0597 Wyes DeserlbeReason Additionel Comments Turnkey Construction CustomerContact Inforrnation Name/ Title E4lan AtkIrees Phone # Fax8 Radiology or Dept Admin. Alfred Rosenbaum, MD assitnessues 212-744-6638 Chief Technologist Radiologist / Doctor Contact** Key CustomerContact Alfred Rosenbaum, MD enammesamemm 212-744-5538 Warranty Letter To Alfred Rosenbaum, IM) 212-744-5638 Clinical Support Kit To Alfred Rosenbaum, MD gagltemastes 212-744-5638 * Personresponsiblefor schedulingdeliveryand authorizingpayment Last Updated:April20, 2006 R. Lawrence Owner;R. Owner; FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 06/26/2018 Order a Package PH L PS Account: ROSENBAUM & ROSENFELD MDS SiebelRef #: 14829 Sales Rep: Laura St Germain Solution: 100532 Gemini16 Power Upgrades Costs OtherCosts NetBookingAd|ustments (tal BookingMargIn SystemCost: $000 InstallCost: $19,300 00 Trade-InFMVValue[•): $0.00 CustomerListPrice: $1,410.400 00 ThirdPartyCost: $000 WarrantyCost:$45,996 00 ContractFeeCost:$O00 CustomerNetPrice: $1,410.400 00 LooseItemCost: $000 ServiceFMVValue(-): $000 NetBooking: 00 $1,410,400 $1,410,400 Add'ICharges: 00 BlindDiscountCost(-): $0.00 OrderDIsc%: 0% TotalCost: $1,410,400 00 ProfitAmount: $000 Margin%: 0% SystemList: so00 Discount%: 0% LIstPrice: $1.410,430 00 AMDiscountDetail AdminFeePercent LooseItemList: PromoDIscAmt: SubNetPrice: 00 $1,410,400 0% 0% ThirdPartyList: $000 PromoDisc%: 0% AdjustAmt: $000 $000 LockContractPrice?: Add'IService:$1,410.400 00 Tradein Amount: NetPrice: 00 $1,410,400 BlindDiscount%: Y Add'ISveDisc: SO00 O'A QuoteContractAmt: NetalterSPOODisc: $1,410.400.00BilndDiscountAmt:$1.410,400 00 Trade-InFMV: SO00 ServiceFMV·. .:, $000 ' Qty Product . Ust Price Not Price .m 1 882301 Upgrades GEMINI16 Power ($0.00) ($0.00) 1 NPTA186 Gemini 16 Power