Motion for Forum Non Conveniens in ARMAND TINKERIAN VS JUAN LUIS JIMENES TORIBIO, ET AL.| Trellis.Law

On November 27, 2019 a Motion,Ex Parte was filed involving a dispute between Tinkerian Armand, and Jimenes Toribio Juan Luis, Localbitcoins, Sonntag Sebastian, Wells Fargo & Company, for Contractual Fraud (Limited Jurisdiction) in the District Court of Los Angeles County.

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Electronically FILED by Superior Court of California, County of Los Angeles on 09/23/2020 12:46 PM Sherri R. Carter, Executive Officer/Clerk of Court, by H. Aldana,Deputy Clerk

The Law Offices of Damian D. Capozzola
1 Damian D. Capozzola (SBN 186412)
2 Timothy R. Laquer (SBN 306917)
633 W. Fifth Street, 26th Floor
3 Los Angeles, California 90071
Phone: (213) 533-4112
4 Facsimile: (213) 223-2014
ddc@ddclaw.com
5 trl@ddclaw.com
6
Counsel for Defendants LocalBitcoins and Sebastian Sonntag
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
9
CENTRAL DISTRICT
10
11 ARMAND TINKERIAN, Case No. 19STLC11000

12 Plaintiff, Assigned to: Hon. Sereno Murillo
Dept. 26
13 v.

14 JUAN LUIS JIMENES TORIBIO; DEFENDANTS LOCALBITCOINS AND
WELLS FARGO & COMPANY; SEBASTIAN SONNTAG’S NOTICE OF
15 LOCALBITCOINS AND DOES 1-100, MOTION AND MOTION FOR FORUM
NON CONVENIENS
16
Defendants.
[Declaration of Sebastian Sonntag, and
17 Proposed Order concurrently filed]
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Hearing Date: April 14, 2021
19 Hearing Time: 10:00 a.m.
Hearing Dept.: 26
20 Reservation ID: 998294051614
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Action Filed: November 27, 2019
22 Trial Date: May 26, 2021
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DEFENDANTS LOCALBITCOINS AND SEBASTIAN SONNTAG’S MOTION FOR FORUM NON
CONVENIENS
1 TO EACH PARTY AND TO THE COUNSEL OF RECORD FOR EACH PARTY:
2 YOU ARE HEREBY NOTIFIED THAT on April 14, 2021 at 10:00 a.m. in Department
3 26 of this Court located at 312 North Spring Street, Los Angeles, California 90012, Cross
4 Defendant LocalBitcoins (“LBC”) and Defendant Sebastian Sonntag (“Sonntag”) (collectively,
5 with LBC, “Defendants”) will appear specially and move the Court for an order dismissing this
6 action or, in the alternative, staying all further proceedings.
7 This Motion is made on the grounds that the parties knowingly and voluntarily agreed to
8 litigate their dispute in the district court of Helsinki, Finland, and California is an inconvenient
9 forum for trial of this action.
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This Motion will be based upon this Notice, the Memorandum in Support, the
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concurrently filed Declaration of Sebastian Sonntag, the files and records in this action, and any
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further evidence and argument that the Court may receive at or before the hearing.
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Dated: September 23, 2020 ________________________________________
16 Damian D. Capozzola
Timothy R. Laquer
17
THE LAW OFFICES OF
18 DAMIAN D. CAPOZZOLA
19 Counsel for Defendants LocalBitcoins
and Sebastian Sonntag
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DEFENDANTS LOCALBITCOINS AND SEBASTIAN SONNTAG’S MOTION FOR FORUM NON
CONVENIENS
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 This action involves two individuals – Plaintiff Armand Tinkerian (“Plaintiff” or
4 “Tinkerian”) and Defendant Juan Luis Jimenes Toribio (“Toribio”) – who purportedly entered
5 into an agreement whereby Plaintiff agreed to sell, and Toribio agreed to buy, one bitcoin for the
6 price of nine thousand dollars ($9,000.00). In the Complaint, Plaintiff alleges that Toribio
7 deposited funds into Plaintiff’s bank account and then Plaintiff transferred the bitcoin to
8 Toribio’s account through Defendant LocalBitcoins’ (“LBC”) platform.
9 LBC’s platform is a person-to-person bitcoin trading site, whereby individuals can post
10 advertisements for buying or selling bitcoins. LBC holds the seller’s bitcoins safe in escrow
11 until payment is complete and the seller releases the bitcoins to the buyer. LBC does not make
12 any representations or warranties for sellers as to the buyer’s non-fraudulent intent, and LBC’s
13 Terms of Service expressly cautions sellers to confirm that they have received payment prior to
14 releasing the trade because it is not possible for LBC to cancel, reverse, dispute, or recover
15 bitcoins once the seller authorizes LBC to transfer the bitcoin.
16 Plaintiff admits that he received the deposit of Toribio’s funds into Plaintiff’s bank
17 account, and further acknowledges that he authorized LBC to transfer the bitcoin to Toribio after
18 Plaintiff received payment. LBC thus acted in accordance with Plaintiff’s authorization in
19 completing the sale. Plaintiff alleges that after he authorized the transfer, Toribio demanded that
20 Plaintiff’s bank return the paid sum, and Plaintiff’s bank did refund Toribio the sum.
21 LBC has engaged in no wrongdoing and there is no factual or legal basis for LBC’s
22 inclusion in this litigation. Each and every of Plaintiff’s causes of action against LBC are fatally
23 defective as set forth in the simultaneously filed Demurrer. Furthermore, Plaintiff filed a Doe
24 Amendment, recklessly identifying Sebastian Sonntag (“Sonntag”) (collectively, with LBC,
25 “Defendants”), LBC’s current Chief Executive Officer, as a Defendant in this matter. Sonntag
26 was not affiliated with LBC when these events occurred, and the Complaint contains no
27 allegations pertaining to Sonntag which give rise to individual liability. Despite a lack of any
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DEFENDANTS LOCALBITCOINS AND SEBASTIAN SONNTAG’S MOTION FOR FORUM NON
CONVENIENS
1 detail as to Sonntag, who is not mentioned once in the Complaint, Plaintiff has brought various
2 causes of action against him, including fraud in direct violation of California’s heightened and

3 specific pleading standards. Defendants identified these various deficiencies to Plaintiff, yet
4 Plaintiff has refused to appropriately withdraw or correct the Complaint. Defendants have thus
5 been compelled to defend against this frivolous action by bringing a Demurrer to the Complaint
6 and a Motion for Sanctions.
7 Furthermore, Plaintiff knowingly and voluntarily agreed to litigate “all disputes, claims
8 and proceedings” in the “district court of Helsinki, Finland” by agreeing to LBC’s TOU and by
9 accessing LBC’s services, and this Court should enforce the forum-selection clause.
10 Accordingly, Defendants respectfully request that this Court grant this Motion.
11 II. FACTUAL AND PROCEDURAL BACKGROUND
12 LBC is a person-to-person bitcoin trading site, whereby individuals can post
13 advertisements for buying or selling bitcoins with exchange rates and payment methods. LBC
14 holds the bitcoins safe in escrow until payment is complete and a seller releases the bitcoins to
15 the buyer. Plaintiff and Toribio registered for LBC’s services and agreed to LBC’s Terms of
16 Service (“TOS”), which is required for all individuals accessing LBC’s services or otherwise
17 using LBC’s services.
18 Plaintiff alleges that on or about December 4, 2018, Plaintiff and Toribio entered into an
19 agreement whereby Plaintiff would sell and Toribio would buy one bitcoin for the price of nine
20 thousand dollars ($9,000.00). Plaintiff alleges that Toribio deposited the payment into Plaintiff’s
21 bank account at Defendant Wells Fargo & Company (“Wells Fargo”) on December 4, and that
22 Plaintiff subsequently transferred the bitcoin to Toribio’s account at LBC on December 5.
23 Plaintiff alleges that on December 8, Toribio demanded and received a refund of the payment
24 from Wells Fargo.
25 On November 27, 2019, Plaintiff filed the present litigation against Toribio, Wells Fargo,
26 LBC, and Does 1-100.
27 On April 21, 2020, Plaintiff filed an Amendment to Complaint (Fictitious/Incorrect
28 Name), designating Doe 1 as Sonntag. As of April 21, 2020, no defendant had filed a responsive
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DEFENDANTS LOCALBITCOINS AND SEBASTIAN SONNTAG’S MOTION FOR FORUM NON
CONVENIENS
1 pleading. Plaintiff thus was entitled to file a First Amended Complaint as a matter of right yet
2 Plaintiff did not file such a First Amended Complaint.

3 Counsel for Defendants attempted to meet and confer with Plaintiff concerning defects
4 with the Complaint. However, despite Defendants’ good faith attempt to meet and confer,
5 Plaintiff failed or refused to substantively meet and confer, and the parties were unable to resolve
6 the objections raised by Defendants.
7 III. LEGAL STANDARDS
8 Code of Civil Procedure section 418.10(a)(1) enables a defendant to bring a motion to
9 stay or dismiss an action on the ground of inconvenient forum. A motion for forum non
10 conveniens may be based upon the parties’ knowing and voluntary agreement to litigate their
11 dispute in a particular state or country, and California courts acknowledge and enforce such
12 forum-selection contracts and clauses. See Berg v. MTC Electronics Technologies Co., Ltd.
13 (1998) 61 Cal. App. 4th 349, 358-359. When a forum-selection clause is mandatory, California
14 courts give effect to the selection regardless of the convenience of the forum, and the only
15 question is whether enforcement is “unfair” or “unreasonable.” Richtek USA, Inc. v. uPI
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Semiconductor Corp. (2015) 242 Cal. App. 4th 651, 661 (“When a case involves a mandatory
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forum selection clause, it will usually be given effect unless it is unfair or unreasonable.”); Cal-
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State Products & Services, Inc. v. Ricoh (1993) 12 Cal. App. 4th 1666, 1683; Furda v. Superior
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Court (1984) 161 Cal. App. 3d 418, 426.
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Even absent a mandatory forum-selection clause, a California court may stay or dismiss
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an action where there is a “suitable” alternative forum available, and where the weight of private
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and public interest favor having the suit held in the alternative forum. See generally Stangvik v.
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Shiley Inc. (1991) 54 Cal. 3d 744, 751. Courts must weigh and balance private interests
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including access to sources of proof, residences of parties, witnesses, and locations of evidence,
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the cost of obtaining attendance of witnesses, and the availability of compulsory process for
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attendance of witnesses, as well as the public interests including California’s interest in the
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transaction or activities, the foreign forum’s interests, and protecting jurors to not have them
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DEFENDANTS LOCALBITCOINS AND SEBASTIAN SONNTAG’S MOTION FOR FORUM NON
CONVENIENS
1 called to decide cases in which the local community has little concern. See, e.g., Stangvik, 54
2 Cal. 3d at 751; Morris v. AGFA Corp. (2006) 144 Cal. App. 4th 1452, 1463-1464.
3 IV. PLAINTIFF’S COMPLAINT IS IN AN IMPROPER FORUM AS PLAINTIFF
4 AGREED TO LITIGATE ALL DISPUTES IN THE DISTRICT COURT OF
5 HELSINKI, FINLAND AND CALIFORNIA IS AN INCONVENIENT FORUM
6 Even if Defendants were subject to jurisdiction of a California court (which Defendants
7 contend they are not, see Defendants’ simultaneously filed Motion to Quash Service of
8 Summons), California is an inconvenient forum as Plaintiff knowingly and voluntarily agreed to
9 litigate “all disputes, claims and proceedings” in the “district court of Helsinki, Finland” by
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agreeing to LBC’s TOU and by accessing LBC’s services. See Decl. of Sonntag, ¶¶ 8-10, Ex. A.
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Such forum-selection clauses are regularly enforced by California courts. See Berg v. MTC
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Electronics Technologies Co., Ltd. (1998) 61 Cal. App. 4th 349, 358-359. This clause, to which
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Plaintiff agreed, is mandatory: disputes “shall be resolved” in Helsinki, Finland. Plaintiff thus
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contracted away his right to choose his home forum, and this Court need not analyze any
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“convenience” factors in enforcing the mandatory contractual forum selection clause. See Cal-
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State Products & Services, Inc. v. Ricoh (1993) 12 Cal. App. 4th 1666, 1683. Defendants
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contend that it would be neither unfair nor unreasonable for this Court to enforce the forum
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selection clause and to require Plaintiff and Defendants to litigate this dispute in Helsinki,
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Finland.
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Nevertheless, even if this Court did analyze the “convenience” factors, it is clear that
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California is not a convenient forum. The district court of Helsinki, Finland is a suitable
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alternative forum (and one to which Plaintiff and Defendants have already agreed to proceed
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before). Defendant LBC is a Finnish limited liability company with its registered office and
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principal place of business located in Helsinki, Finland. See Decl. of Sonntag, ¶ 3, Ex. A, at p.1.
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Similarly, Defendant Sonntag is a Finnish citizen who resides in Finland. See Decl. of Sonntag,
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¶ 2. Plaintiff may obtain a valid judgment against Defendants there, as Defendants are subject to
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personal jurisdiction in that forum. See, e.g., Stangvik v. Shiley Inc. (1991) 54 Cal. 3d 744, 751.
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DEFENDANTS LOCALBITCOINS AND SEBASTIAN SONNTAG’S MOTION FOR FORUM NON
CONVENIENS
1 Defendants, as a Finnish company and individual, have not engaged in business within
2 the California, have not “qualified” to do business in California, and have not “purposefully
3 availed” themselves of any benefits from or with the California. See Decl. of Sonntag, ¶¶ 5-7.
4 Defendant LBC’s website operates worldwide, facilitating sales between private third-parties
5 regardless of location, and this thus includes almost every state in the United States of America,
6 with the sole exceptions being New York and Washington. See Decl. of Sonntag, ¶ 5.
7 Defendant Sonntag and Defendant LBC’s officers, directors, and employees, along with any
8 physical evidence in Defendant Sonntag and/or LBC’s possession, are thus located in Finland,
9 and any compulsory process for attendance of these witnesses will be challenging, if even
10 possible at all. Similarly, costs for obtaining attendance of witnesses will be significant given
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that these witnesses reside outside California and outside of the United States.
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While Plaintiff purports to be a California resident, the primary individual with
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responsibility and liability in Defendants’ view is Defendant Juan Luis Jimenes Toribio, who
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Plaintiff has alleged is a resident of the State of Alabama. Defendants recognize that California
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does have an interest in regulating activities and transactions which occur within its borders, but
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this particular activity and transaction transcends California’s borders as it occurred through
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Defendant LBC’s platform which operates worldwide and facilitates sales between private third-
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parties regardless of location. See Decl. of Sonntag, ¶ 5. Accordingly, California bears minimal
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interest in these particular events, and California jurors would thus be called to determine a case
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in which California has little concern, as there is no unique or special impact that this interstate
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and international website has upon California. Defendants thus contend that the balance of
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private and public interests confirm that this litigation is proper to proceed as against Defendants
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LBC and Sonntag in Finland, even if Plaintiff had not agreed to the mandatory forum-selection
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clause which requires dispute resolution in Finland.1
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Beyond Defendants’ contention that resolution of this dispute is proper in Finland, Defendants
27 maintain that any resolution on the merits will be favorable to Defendants, regardless of the
forum. LBC’s Terms of Service expressly cautions sellers to confirm that they have received
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DEFENDANTS LOCALBITCOINS AND SEBASTIAN SONNTAG’S MOTION FOR FORUM NON
CONVENIENS
1 V. CONCLUSION
2 For all the reasons set forth above, Defendants LocalBitcoins and Sebastian Sonntag
3 respectfully request that this Court grant this Motion for Forum Non Conveniens.
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6 Dated: September 23, 2020 ________________________________________
Damian D. Capozzola
7
Timothy R. Laquer
8
THE LAW OFFICES OF
9 DAMIAN D. CAPOZZOLA

10 Counsel for Defendants LocalBitcoins
and Sebastian Sonntag
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25 payment prior to releasing the trade because it is not possible for LBC to cancel, reverse, dispute,
or recover bitcoins once the seller authorizes LBC to transfer the bitcoin. Plaintiff expressly
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authorized LBC to transfer Plaintiff’s bitcoin to Toribio after Plaintiff received payment, and
27 LBC acted pursuant to Plaintiff’s authorization. Defendants LBC and Sonntag engaged in no
wrongdoing and there is no factual or legal basis for liability.
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DEFENDANTS LOCALBITCOINS AND SEBASTIAN SONNTAG’S MOTION FOR FORUM NON
CONVENIENS
PROOF OF SERVICE
1
STATE OF CALIFORNIA )
2
)
3 COUNTY OF LOS ANGELES )

4
I am employed in the County of Los Angeles, State of California, I am over the age of 18 years
5 and not a party to the within action; my business address is 633 W. Fifth St., 26th Floor, Los
6 Angeles, CA 90071.

7 On this date, I served this Proof of Service and the foregoing document(s) described as:

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DEFENDANTS LOCALBITCOINS AND SEBASTIAN SONNTAG’S NOTICE OF
9 MOTION AND MOTION FOR FORUM NON CONVENIENS

10 Said document was served on the interested party or parties in this action by placing into the United
11 States mail a true copy thereof, enclosed in a sealed envelope, postage paid and addressed as noted
below.
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X (By Mail) I deposited such envelope in the mail at Lake Forest, California. The envelope
13 was mailed with postage thereon fully prepaid.
14 (By Overnight Mail) I deposited such envelope in the overnight mail at Lake Forest,
15 California. The envelope was mailed with postage thereon fully prepaid.

16 X (By Electronic Transmittal) I successfully sent or caused to be sent this document via email
to the email address as listed on the attached mailing list.
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(By Personal Service) I caused such materials to be delivered by hand to the below
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recipient(s).
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Executed on September 23, 2020 at Lake Forest, California.
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21 I declare under penalty of perjury under the laws of the State of California that the above is true
and correct.
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25 ________________________________________

26 Timothy R. Laquer

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DEFENDANTS LOCALBITCOINS AND SEBASTIAN SONNTAG’S MOTION FOR FORUM NON
CONVENIENS
RECIPIENT LIST
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Case Name : Tinkerian v. Toribio, et al.
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Court : LOS ANGELES - CENTRAL DISTRICT
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4 Case Number : 19STLC11000

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6 Armand Tinkerian
135 South State College Blvd., Suite 200
7
Brea, California 92821
8 trialsandappeals@yahoo.com
Plaintiff, In Pro Per
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DEFENDANTS LOCALBITCOINS AND SEBASTIAN SONNTAG’S MOTION FOR FORUM NON
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Court Reservation Receipt | Journal Technologies Court Portal https://portal-lasc.journaltech.com/public-portal/?q=calendar/receipt...

Journal Technologies Court Portal

Court Reservation Receipt
Reservation
Reservation ID: Status:
998294051614 RESERVED
Reservation Type: Number of Motions:
Motion for Forum Non Conveniens 1
Case Title:
Case Number: ARMAND TINKERIAN vs JUAN LUIS JIMENES
19STLC11000 TORIBIO, et al.
Filing Party: Location:
LocalBitcoins (Defendant) Spring Street Courthouse - Department 26
Date/Time: Confirmation Code:
April 14th 2021, 10:00AM CR-SYU5AURFXEBDY2HKN

Fees
D
Deessccrriippttiioonn FFeeee Q
Qttyy A
Ammoouunntt

Motion for Forum Non Conveniens 60.00 1 60.00

Credit Card Percentage Fee (2.75%) 1.65 1 1.65

TOTAL $$6611..6655

Payment
Amount: Type:
$61.65 Visa
Account Number: Authorization:
XXXX4304 01330D

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September 23, 2020

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November 27, 2019

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Motion,Ex Parte: ARMAND TINKERIAN VS JUAN LUIS JIMENES TORIBIO, ET AL.

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