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Gordon J. Finwall, SB#141777
FINWALL LAW OFFICES, APC
1056 Lincoln Avenue
San Jose, CA 95125
(408) 350-4041 (phone)
(408) 350-4042 (fax)
Gordon@Finwalllaw.com
Attorneys for Plaintiffs
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
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11 NIHA MATHUR, et al., NO. 22-CV-403968
12 Plaintiffs, REPLY MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF EX PARTE
13 vs. APPLICATION FOR RIGHT TO ATTACH
ORDER AND ORDER FOR ISSUANCE
14 METALLIC BLUE DEVELOPMENT, OF WRIT OF ATTACHMENT
LLC, et al.,
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Defendants.
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17 Plaintiffs submit the following memorandum of points and authorities in reply to the
18 opposition filed by defendant THE EQUITY CONSULTANTS, LLC:
19 A Great or Irreparable Injury Will Result to Plaintiffs if Issuance of an
Attachment Order Were Delayed until this Matter Could Be Heard on Notice
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21 THE EQUITY CONSULTANTS, LLC argues that there are no “exigent circumstances”
22 (i.e., no great or irreparable injury) that compel issuing an ex parte right to attach order. Defendants are
23 mistaken.
24 Code of Civil Procedure section 485.010(b) provides that ex parte relief may be issued
25 under the several circumstances, including the following, all of which have been established by the
26 plaintiffs’ declarations:
27 qd) Under the circumstances of the case, it may be
28 Reply Memorandum of Points & Authorities in
Support of Ex Parte Application for Right to
Attach Order
inferred that there is a danger that the property sought to be
attached would be concealed, substantially impaired in value,
or otherwise made unavailable to levy if issuance of the
order were delayed until the matter could be heard on notice.
(2) Under the circumstances of the case, it may be
inferred that the defendant has failed to pay the debt
underlying the requested attachment and the defendant is
insolvent in the sense that the defendant is generally not
paying his or her debts as those debts become due, unless the
debts are subject to bona fide dispute. Plaintiff's affidavit
filed in support of the ex parte attachment shall state, in
addition to the requirements of Section 485.530, the known
undisputed debts of the defendant, that the debts are not
subject to bona fide dispute, and the basis for plaintiff's
determination that the defendant’s debts are undisputed.
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(5) Any other circumstances showing that great or
11 irreparable injury would result to the plaintiff if issuance of
the order were delayed until the matter could be heard on
12 notice.
13 With respect to Section 485.010(b)(1), danger that property may be “concealed,
14 substantially impaired in value, or otherwise made unavailable to levy” may be established
by showing
15 “past dishonesty, failure to meet obligations, or concealment of assets.” Western Steel
& Ship Repair, Inc.
16 ¥, - RMI. Inc. (1986) 176 Cal.App.3d 1108, 1114. The plaintiffs’ declarations detail the misrepres
entations
17 THE EQUITY CONSULTANTS, LLC made regarding its assets, including the balance sheet
it provided
18 that lists assets it in fact does not own, the complete lack of transparency, the failure to follow through
19 with promises, the failure to communicate, and the failure to pay its debts, including those
owed to all
20 three plaintiffs.
21 With respect to Section 485.010(b)(2), the plaintiffs’ declarations establish that THE
22 EQUITY CONSULTANTS, LLC “is insolvent in the sense that the defendant is generally
not paying his
23 or her debts as those debts become due” and that the debts are not subject to “bona fide dispute.”
It appears
24 that THE EQUITY CONSULTANTS, LLC is not paying any of its debts, including the six figure debts
25 owed to each of the plaintiffs. THE EQUITY CONSULTANTS, LLC does not appear to dispute the
26 debts; rather it has just expressed it needs time to pay.
27 Unless Plaintiffs are afforded ex parte relief, their investments will remain in grave
28 Reply Memorandum of Points & Authorities in
[Support of Ex Parte Application for Right to
Attach Order
jeopardy. In addition to THE EQUITY CONSULTANTS, LLC not paying its debts, failing to
communicate with its investors, misrepresenting its assets to such an extent that it appears not to hold title
to a single real property, making promises to update its investors and then not following through and
moving out of its corporate offices, a petition for involuntary Chapter 7 bankruptcy was filed earlier this
week against its sister entity defendant METALLIC BLUE DEVELOPMENT, LLC. METALLIC BLUE
DEVELOPMENT, LLC is the managing director of THE EQUITY CONSULTANTS, LLC. Given the
connection between these companies (e.g., Plaintiffs invested with METALLIC BLUE DEVELOPMENT,
LLC but THE EQUITY CONSULTANTS, LLC signed the Unit Redemption Agreements), Plaintiffs’
hopes are recovering their investments are quickly evaporating.
10 B. As THE EQUITY CONSULTANTS, LLC Is an Entity, Plaintiffs Do Not Have
the Burden of Establishing that the Action Arises out of Conduct by the
11 Defendant of a Trade, Business or Profession
12 THE EQUITY CONSULTANTS, LLC argues that Plaintiffs have “not demonstrated that
13 the contract at issue is commercial in nature,” i.e., arises out of defendant’s conduct of a trade, business
14 or profession.” It cites Code of Civil Procedure section 483.010(c).
15 However, Section 483.010(c) only requires claims against a natural person to arise out of
16 the defendant’s conduct of a trade, business or profession. This requirement does not apply to claims
17 against limited liability companies. See, Code of Civil Procedure section 481.170; 1976 Comment to
18 Code of Civil Procedure section 483.010(c).
19 THE EQUITY CONSULTANTS, LLC isa limited liability company, not a natural person.
20 Cc THE EQUITY CONSULTANTS, LLC Breached the Unit Redemption
Agreements
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22 THE EQUITY CONSULTANTS, LLC argues that Plaintiffs have not established uncured
23 defaults. However, each of the plaintiffs’ declarations state that the plaintiffs joined forces in June 2022,
24 hired attorney Gordon J. Finwall to send a demand letter to THE EQUITY CONSULTANTS, LLC and
25 that despite extensive discussions with THE EQUITY CONSULTANTS, LLC’s counsel, the debts remain
26 unpaid. Mr. Finwall’s demand letter is attached to the Reply Declaration of Gordon J. Finwall filed
27 herewith as Exhibit “A.”
28 Reply Memorandum of Points & Authorities in
Support of Ex Parte Application for Right to
Attach Order
D There Is No Requirement to File a Memorandum of Points and Authorities in
Support of an Application for Right to Attach Order
Lastly, THE EQUITY CONSULTANTS, LLC argues, without any authority, that the
application must be denied because it does not include a memorandum of points and authoriti
es.
The obvious flaw with this argument is that a memorandum of points and authorities is not
required. Since the Judicial Council promulgated use of forms for attachment applications (see Code
of
Civil Procedure section 482.030) and the form application for attachment tracks the statutory provisions
of attachment law, there is generally no need to file a separate memorandum of points and authorities.
DATED: December 1, 2022 FINWALL LAW OFFICES, APC
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11 ZFg LLL
i Lag
[re
GO NZ. FR , Attorneys for
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28 Reply Memorandum of Points & Authorities in
Support of Ex Parte Application for Right to
Attach Order
PROOF OF SERVICE
I, the undersigned, say:
That I am now, and at all times mentioned, a citizen of the United States, over the age of
eighteen years, a resident of Santa Clara County, California; Iam not a party to the within action or cause;
that my business address is 1056 Lincoln Avenue, San Jose, California 951 25; that on December 1, 2022,
I served the Reply Memorandum of Points and Authorities in Suppory of Application for Right
to
Attach Order (Ex Parte) and Order for Issuance of Writ of Attachment; Declaration of Gordon J.
Finwall in via email to:
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Richard A. Marcus
11 LAW OFFICES OF RICHARD A. MARCUS
12 28494 Westinghouse Place, Suite 205
Valencia, CA 91355
13 Phone: (661) 257-8877
Email: richard@attorneyrichardmarcus.com
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Client: THE EQUITY CONSULTANTS, LLC
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Courtney Ross-Tait
16 BIEDERMANN HOENIG SEMPREVIVO, APC
8730 Wilshire Blvd., Suite 310
17 Beverly Hills, CA 90211
18 Phone: (310) 279-7893
Email: courtney.ross-tait@lawbhs.com
19 Clients: METALLIC BLUE DEVELOPMENT, LLC; WILLIAM STANLEY HO
20 Matthew Abbasi
21 LAW OFFICES OF ABBASI & ASSOCIATES
ABBASI LAW CORPORATION
we 6320 Canoga Avenue, Suite 220
Woodland Hills, CA 91367
23) Phone: (310) 358-9341
Email: matthew@malawgroup.com
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Clients: GRACIOUS RIDGE, LLC; NEDA AZIZISETAT
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Louis Esbin
LAW OFFICES OF LOUIS J. ESBIN
27451 Tourney Road, Suite 120
Valencia, CA 91355
Phone: (661) 254-5050
Email: Louis@Esbinlaw.com
Client: BRIAN DOZIER
I attached the above-described documents to an email message, and invoked the send
command to transmit the email message to the persons at the email addresses listed above. My email
address is Gordon@finwalllaw.com.
10 I declare under penalty of perjury that the foregoing is true and correct.
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Executed on December 1, 2022 at San Jose, California.
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Preview
Gordon J. Finwall, SB#141777 FINWALL LAW OFFICES, APC 1056 Lincoln Avenue San Jose, CA 95125 (408) 350-4041 (phone) (408) 350-4042 (fax) Gordon@Finwalllaw.com Attorneys for Plaintiffs IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA 10 11 NIHA MATHUR, et al., NO. 22-CV-403968 12 Plaintiffs, REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE 13 vs. APPLICATION FOR RIGHT TO ATTACH ORDER AND ORDER FOR ISSUANCE 14 METALLIC BLUE DEVELOPMENT, OF WRIT OF ATTACHMENT LLC, et al., 15 Defendants. 16 17 Plaintiffs submit the following memorandum of points and authorities in reply to the 18 opposition filed by defendant THE EQUITY CONSULTANTS, LLC: 19 A Great or Irreparable Injury Will Result to Plaintiffs if Issuance of an Attachment Order Were Delayed until this Matter Could Be Heard on Notice 20 21 THE EQUITY CONSULTANTS, LLC argues that there are no “exigent circumstances” 22 (i.e., no great or irreparable injury) that compel issuing an ex parte right to attach order. Defendants are 23 mistaken. 24 Code of Civil Procedure section 485.010(b) provides that ex parte relief may be issued 25 under the several circumstances, including the following, all of which have been established by the 26 plaintiffs’ declarations: 27 qd) Under the circumstances of the case, it may be 28 Reply Memorandum of Points & Authorities in Support of Ex Parte Application for Right to Attach Order inferred that there is a danger that the property sought to be attached would be concealed, substantially impaired in value, or otherwise made unavailable to levy if issuance of the order were delayed until the matter could be heard on notice. (2) Under the circumstances of the case, it may be inferred that the defendant has failed to pay the debt underlying the requested attachment and the defendant is insolvent in the sense that the defendant is generally not paying his or her debts as those debts become due, unless the debts are subject to bona fide dispute. Plaintiff's affidavit filed in support of the ex parte attachment shall state, in addition to the requirements of Section 485.530, the known undisputed debts of the defendant, that the debts are not subject to bona fide dispute, and the basis for plaintiff's determination that the defendant’s debts are undisputed. 10 (5) Any other circumstances showing that great or 11 irreparable injury would result to the plaintiff if issuance of the order were delayed until the matter could be heard on 12 notice. 13 With respect to Section 485.010(b)(1), danger that property may be “concealed, 14 substantially impaired in value, or otherwise made unavailable to levy” may be established by showing 15 “past dishonesty, failure to meet obligations, or concealment of assets.” Western Steel & Ship Repair, Inc. 16 ¥, - RMI. Inc. (1986) 176 Cal.App.3d 1108, 1114. The plaintiffs’ declarations detail the misrepres entations 17 THE EQUITY CONSULTANTS, LLC made regarding its assets, including the balance sheet it provided 18 that lists assets it in fact does not own, the complete lack of transparency, the failure to follow through 19 with promises, the failure to communicate, and the failure to pay its debts, including those owed to all 20 three plaintiffs. 21 With respect to Section 485.010(b)(2), the plaintiffs’ declarations establish that THE 22 EQUITY CONSULTANTS, LLC “is insolvent in the sense that the defendant is generally not paying his 23 or her debts as those debts become due” and that the debts are not subject to “bona fide dispute.” It appears 24 that THE EQUITY CONSULTANTS, LLC is not paying any of its debts, including the six figure debts 25 owed to each of the plaintiffs. THE EQUITY CONSULTANTS, LLC does not appear to dispute the 26 debts; rather it has just expressed it needs time to pay. 27 Unless Plaintiffs are afforded ex parte relief, their investments will remain in grave 28 Reply Memorandum of Points & Authorities in [Support of Ex Parte Application for Right to Attach Order jeopardy. In addition to THE EQUITY CONSULTANTS, LLC not paying its debts, failing to communicate with its investors, misrepresenting its assets to such an extent that it appears not to hold title to a single real property, making promises to update its investors and then not following through and moving out of its corporate offices, a petition for involuntary Chapter 7 bankruptcy was filed earlier this week against its sister entity defendant METALLIC BLUE DEVELOPMENT, LLC. METALLIC BLUE DEVELOPMENT, LLC is the managing director of THE EQUITY CONSULTANTS, LLC. Given the connection between these companies (e.g., Plaintiffs invested with METALLIC BLUE DEVELOPMENT, LLC but THE EQUITY CONSULTANTS, LLC signed the Unit Redemption Agreements), Plaintiffs’ hopes are recovering their investments are quickly evaporating. 10 B. As THE EQUITY CONSULTANTS, LLC Is an Entity, Plaintiffs Do Not Have the Burden of Establishing that the Action Arises out of Conduct by the 11 Defendant of a Trade, Business or Profession 12 THE EQUITY CONSULTANTS, LLC argues that Plaintiffs have “not demonstrated that 13 the contract at issue is commercial in nature,” i.e., arises out of defendant’s conduct of a trade, business 14 or profession.” It cites Code of Civil Procedure section 483.010(c). 15 However, Section 483.010(c) only requires claims against a natural person to arise out of 16 the defendant’s conduct of a trade, business or profession. This requirement does not apply to claims 17 against limited liability companies. See, Code of Civil Procedure section 481.170; 1976 Comment to 18 Code of Civil Procedure section 483.010(c). 19 THE EQUITY CONSULTANTS, LLC isa limited liability company, not a natural person. 20 Cc THE EQUITY CONSULTANTS, LLC Breached the Unit Redemption Agreements 21 22 THE EQUITY CONSULTANTS, LLC argues that Plaintiffs have not established uncured 23 defaults. However, each of the plaintiffs’ declarations state that the plaintiffs joined forces in June 2022, 24 hired attorney Gordon J. Finwall to send a demand letter to THE EQUITY CONSULTANTS, LLC and 25 that despite extensive discussions with THE EQUITY CONSULTANTS, LLC’s counsel, the debts remain 26 unpaid. Mr. Finwall’s demand letter is attached to the Reply Declaration of Gordon J. Finwall filed 27 herewith as Exhibit “A.” 28 Reply Memorandum of Points & Authorities in Support of Ex Parte Application for Right to Attach Order D There Is No Requirement to File a Memorandum of Points and Authorities in Support of an Application for Right to Attach Order Lastly, THE EQUITY CONSULTANTS, LLC argues, without any authority, that the application must be denied because it does not include a memorandum of points and authoriti es. The obvious flaw with this argument is that a memorandum of points and authorities is not required. Since the Judicial Council promulgated use of forms for attachment applications (see Code of Civil Procedure section 482.030) and the form application for attachment tracks the statutory provisions of attachment law, there is generally no need to file a separate memorandum of points and authorities. DATED: December 1, 2022 FINWALL LAW OFFICES, APC 10 11 ZFg LLL i Lag [re GO NZ. FR , Attorneys for 12 Plaintiff; 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reply Memorandum of Points & Authorities in Support of Ex Parte Application for Right to Attach Order PROOF OF SERVICE I, the undersigned, say: That I am now, and at all times mentioned, a citizen of the United States, over the age of eighteen years, a resident of Santa Clara County, California; Iam not a party to the within action or cause; that my business address is 1056 Lincoln Avenue, San Jose, California 951 25; that on December 1, 2022, I served the Reply Memorandum of Points and Authorities in Suppory of Application for Right to Attach Order (Ex Parte) and Order for Issuance of Writ of Attachment; Declaration of Gordon J. Finwall in via email to: 10 Richard A. Marcus 11 LAW OFFICES OF RICHARD A. MARCUS 12 28494 Westinghouse Place, Suite 205 Valencia, CA 91355 13 Phone: (661) 257-8877 Email: richard@attorneyrichardmarcus.com 14 Client: THE EQUITY CONSULTANTS, LLC 15 Courtney Ross-Tait 16 BIEDERMANN HOENIG SEMPREVIVO, APC 8730 Wilshire Blvd., Suite 310 17 Beverly Hills, CA 90211 18 Phone: (310) 279-7893 Email: courtney.ross-tait@lawbhs.com 19 Clients: METALLIC BLUE DEVELOPMENT, LLC; WILLIAM STANLEY HO 20 Matthew Abbasi 21 LAW OFFICES OF ABBASI & ASSOCIATES ABBASI LAW CORPORATION we 6320 Canoga Avenue, Suite 220 Woodland Hills, CA 91367 23) Phone: (310) 358-9341 Email: matthew@malawgroup.com 24 Clients: GRACIOUS RIDGE, LLC; NEDA AZIZISETAT 25 26 27 28 Louis Esbin LAW OFFICES OF LOUIS J. ESBIN 27451 Tourney Road, Suite 120 Valencia, CA 91355 Phone: (661) 254-5050 Email: Louis@Esbinlaw.com Client: BRIAN DOZIER I attached the above-described documents to an email message, and invoked the send command to transmit the email message to the persons at the email addresses listed above. My email address is Gordon@finwalllaw.com. 10 I declare under penalty of perjury that the foregoing is true and correct. 11 Executed on December 1, 2022 at San Jose, California. 12 13 14 15 ORD WALL 16 17 18 19 20 21 22 23 24 25 26 27 28