Preview
iD: NA AU OUN PK JS DM INDEX NO. 613308/2023
NYSCEF BOC. NO. 2 RECEIVED NYSCEF: 08/18/2023
EXHIBIT A
INDEX NO. 613308/2023
NYSCEF DOC. NO. 2 mi 1 eo RECEIVED NYSCEF: 08/18/2023
I
BYZPF PING J—
im NM
REVENUE PURCHASE AGREEMENT
This Revenue Purchase Agreement and Security Agreement and Guaranty of Performance (“Agreement”) dated 04/19/2023 between Byzfunder NY LLC DBA
Byzfunder located at 530 7th Ave Suite 505, New York, NY 10018 (“PURCHASER”) the Merchant(s) listed below (“Merchant”) and the Individual(s) listed below
(each a “Guarantor”
MERCH. INFORMATION
Merchant’s Legal Nam: Fiji Outdoors LLC
DBI: Fiji Outdoors
State of Incorporation / Organization: DE Type of Entity: Limited Liability Company
Physical Address: 3227 Atlantic Boulevard City: Jacksonville State: FL Zi 32207 Business Phone:
Guarantor(s) Name: Trevor James Rosendahl Cellphone Number: Email Address: trevor@trevorbiz.com
Mailing Address: 3227 Atlantic Boulevard City: Jacksonville State: FL Zip: 32207
Purchase Price: $50,000.00 Purchased Percentage: 12.00% Purchased Amount: $73,500.00
Remittance Frequency: Daily Initial Remittance: $565.3:
Origination Fee: $1,500.00 Processing Fee: $275.01
(Deducted from Purchase Price) (Deducted from Purchase Price)
Net Amount Funded to Merchant: $48,225.01
In consideration of payment by PURCHASER to Merchant of the Purchase Price set forth above, Merchant hereby sells, assigns and transfers to PURCHASER (making PURCHASER the
absolute owner) the Purchased Percentage of all of Merchant’s payments, receipts, settlements and funds paid to or received by or for the account of Merchant from time to time on and after the
date hereof in payment or settlement of Merchant's existing and future accounts, payment intangibles, credit, debit and/or stored value card transactions, contract rights and other entitlements
arising from or relating to the payment of monies from Merchant’s customers’ and/or other payors or obligors (the “Future Receipts” defined as all payments made by cash, check, clearinghouse
settlement, electronic transfer or other form of monetary payment), for the payments to Merchant as a result of Merchant's sale of goods and/or services until the Purchased Amount has been
delivered by or on behalf of Merchant to PURCHASER.
Merchant is ling a portion of a future revenue stream to PURCHASER at a discount, and is not borrowing money from PURCHASER, therefore there is no interest rate or
payment schedule and no time period during which the Purchased Amount must be collected by PURCHASER. The Initial Remittance is a good faith estimate of PURCHASER’s
share of the future revenue stream. Merchant going bankrupt or going out of business, or experiencing a slowdown in business, or a delay in collecting its receivables does not
constitute a breach of this Agreement. PURCHASER is entering this Agreement knowing the risks that Merchant's business may not perform as expected or fail, and PURCHASER assumes
these risks based on Merchant’s representations, warranties and covenants in this Agreement, which are designed to give PURCHASER a reasonable and fair opportunity to receive the bent of
its bargain, PURCHASER acknowledges that it may never rec the Purchased Amount in the event that the Merchant does not generate sufficient revenue. Merchant and Guarantor(s) are only
guaranteeing their performance of the terms of this Revenue Purchase Agreement, and are not guaranteeing the payment of the Purchased Amount. The Initial Remittance shall be as described
above and is subject to adjustment as set forth in Section 1.3.
PURCHASER will debit the Remittance each business day from only one depositing bank account, which account must be acceptable to, and pre-approved by, PURCHASER (the “Account”)
into which Merchant and Merchant’s customers shall remit the Receipts from each transaction, Merchant hereby authorizes PURCHASER to ACH debit the agreed Remittance from the Account
on the agreed upon Remittance Frequency; a daily basis means any business day that is not a United States banking holiday.
PURCHASER’S payment of the Purchase Price shall be deemed the acceptance and performance by PURCHASER of this Agreement. A list of all fees applicable under this Agreement is
contained in Appendix A.
THE “MERCHANT AGREEMENT TERMS AND CONDITIONS”, AND THE “SECURITY AGREEMENT AND PERFORMANCE GUARANTY”, ARE ALL HEREBY
INCORPORATED IN AND MADE A PART OF THIS AGREEME!
‘Trevor James Rosendahl, Member
FOR THE MERCHANT (#1) By: Leevr RoveudhE
(Print Name and Title) (Signature)
Jason Thomas Babin, Member
FOR THE MERCHANT (#2) By: D
(Print Name and Title) eink” c 7
‘Trevor James Rosendahl, Member
BY GUARANTOR(S) (#1) By: Lever Resende
(Print Name and Title) (Signature)
BY GUARANTOR(S) (#2) By:
Jason Thomas Babin, Member
Gh, of
(Print Name and Title) (Signdtdre} C Ey y
Initial(s): _ 2 ¢_ TF cL
ry nc
BYZE ED
wor Merchant T Guanintor#1 C7 Gltarantor #2
1
INDEX NO. 613308/2023
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/18/2023
MERCHANT AGREEMENT TERMS AND CONDITIONS
1 TERMS OF ENROLLMENT IN PROGRAM
11 Merchant Deposit Agreement and Processor. Merchant shall (A) if applicable, execute an agreement acceptable to PURCHASER with a Bank acceptable to
PURCHASER to obtain electronic fund transfer services for the Account, and (B) if applicable, execute an agreement acceptable to PURCHASER with a credit and debit
card processor (the “Processor”) instructing the Processor to deposit all Receipts into the Account. Merchant shall provide PURCHASER and/or its authorized agent(s)
with all of the information and authorizations necessary for verifying Merchant’s receivables, receipts, deposits and withdrawals into and from the Account. Merchant
hereby authorizes PURCHASER and/or its agent(s) to withdraw from the Account via ACH debit the amounts owed to PURCHASER for the receipts as specified herein
and to deliver such amounts to PURCHASER. These authorizations apply not only to the approved Account but also to any subsequent or alternate account used by the
Merchant for these deposits.
1.2 No Fixed Term of Agreement. The term of this Agreement is indefinite and shall continue the entire Purchased Amount and any other amounts due are received by
PURCHASER as per the terms of this Agreement, or earlier if terminated pursuant to any provision of this Agreement.
1.3 Reconciliation and Changes to the Remittance Amount. The Initial Remittance amount is intended to represent the Purchased Percentage of Merchant’s daily
Future Receipts. At any time, Merchant or PURCHASER may request a reconciliation to the Remittance amount to more closely reflect the Merchant’s actual Future
Receipts times the Purchased Percentage. Any reconciliation request by Merchant must be: (A) in writing; (B) include a copy of Merchant’s most recent month’s bank
statement and Merchant’s month-to date banking information (the “Reconciliation Documentation”); and (C) be sent to PURCHASER by e-mail at:
reconciliations@byzfunder.com. Within four days of PURCHASER’s reasonable verification of the Reconciliation Documentation, PURCHASER shall adjust the
Remittance amount on a going-forward basis. The adjusted Remittance amount will be based on Merchant's actual Future Receipts times the Purchased Percentage.
Following this adjustment, the Remittance amount will be in the same amount until a subsequent adjustment. If PURCHASER requests a reconciliation, Merchant shall
provide Reconciliation Documentation within seven calendar days of PURCHASER’S request. If Merchant fails to provide requested Reconciliation Documentation
within seven calendar days, PURCHASER may adjust the Remittance amount to the Initial Remittance amount.
14 ‘Transactional History. Merchant authorizes all of its banks, brokers and processor to provide PURCHASER with Merchant’s banking, brokerage and/or
processing history to determine qualification in this program and for collections purposes, if necessary. Merchant shall provide PURCHASER with copies of any
documents reasonably related to Merchant’s card processing activity or Future Receipts within five (5) business days after a request from PURCHASER.
15 Sale of Receipts. Merchant and PURCHASER agree that the Purchase Price under this Agreement is in exchange for the Purchased Amount, and that
such Purchase Price is not intended to be, nor shall it be construed as a loan from PURCHASER to Merchant. Merchant agrees that the Purchase Price is in
exchange for the Receipts pursuant to this Agreement, and that it equals the f market value of such Receipts. PURCHASER has purchased and shall own all
the Receipts described in this Agreement up to the full Purchased Amount as the Receipts are created. Merchant acknowledges that PURCHASER?’ share of Receipts
collected are being held by Merchant in trust and are the sole property of PURCHASER until they are remitted to PURCHASER. Payments made to PURCHASER in
respect to the full amount of the Receipts shall be conditioned upon Merchant’s sale of products and services, and the payment by Merchant’s customers. By this
Agreement, Merchant transfers to PURCHASER full and complete ownership of the Purchased Amount and Merchant retains no legal or equitable interest therein.
PURCHASER hereby appoints Merchant, and Merchant accepts appointment, as servicer for and on behalf of PURCHASER for the purpose of collecting and
delivering Receipts to PURCHASER as required by this Agreement. Merchant agrees that it will treat the amounts received and the Purchased Receipts delivered to
PURCHASER under this Agreement in a manner consistent with a sale in its accounting records and tax returns.
1.6 Credit Report and Other Authorizations. Merchant and each of the Guarantors authorize PURCHASER, its agents and representatives and any credit reporting
agency engaged by PURCHASER, to (i) investigate any references given or any other statements or data obtained from or about Merchant or any of the Guarantors for
the purpose of this Agreement; (ii) obtain consumer and business credit reports on the Merchant and any Guarantors; and (iii) to contact personal and business
references provided by Merchant in any application, at any time now or for so long as Merchant and/or Guarantors continue to have any obligations to PURCHASER
as a consequence of this Agreement or for PURCHASER’S ability to determine Merchant's eligibility to enter into any future agreement with PURCHASER.
2 REPRESENTATIONS, WARRANTIES AND COVENANTS
Merchant represents warrants and covenants that, as of this date and, unless otherwise stated, during the course of this Agreement:
21 Financial Condition and Financial Information. Merchant's bank and financial statements, copies of which have been furnished to PURCHASER, and future
statements which will be furnished hereafter at the request of PURCHASER, fairly represent the financial condition of Merchant at such dates. PURCHASER may
request bank statements and month-to-date bank activity information at any time during the performance of this Agreement and Merchant shall provide them to
PURCHASER within five (5) business days after request from PURCHASER. Merchant's failure to do so is a material breach of this Agreement.
2.2 Governmental Approvals. Merchant is in compliance and shall comply with all laws and has valid permits, authorizations and licenses to own, operate and lease
its properties and to conduct the business in which it is presently engaged and/or will engage in hereafter.
2.3. Authorization. Merchant, and the person(s) signing this Agreement on behalf of Merchant, have full power and authority to incur and perform the obligations under
this Agreement, all of which have been duly authorized.
2.4 Use of Funds. Merchant agrees that it shall use the Purchase Price for business purposes and not for personal, family, or household purposes.
25 No Diversion of Future Receipts. Merchant will deposit all Future Receipts in the Account and will not revoke authorization for PURCHSER to debit the Account,
change the Processor, add processing terminals, change its financial institution or bank account(s), without PURCHASER’s prior written consent. Any such changes shall
be a material breach of this Agreement.
2.6 Change of Name or Location. Merchant will not conduct Merchant’s businesses under any name other than as disclosed to the Processor and PURCHASER, nor
shall Merchant change any of its places of business without prior written consent by PURCHASER.
27 Daily Batch Out. Merchant will batch out receipts with the Processor on a daily basis if applicable.
28 Estoppel Certificate. Merchant will at every and all times, and from time to time, upon at least one (1) day’s prior notice from PURCHASER to Merchant, execute,
acknowledge and deliver to PURCHASER and/or to any other person, firm or corporation specified by PURCHASER, a statement certifying that this Agreement is
unmodified and in full force and effect (or, if there have been modifications, that the same is in full force and effect as modified and stating the modifications) and stating
D ¢ —_— _>
Initial(s):. IP
Soe nc
BYZE
syYZr UV N Vor
ED 7 ‘Merchant Guarantor #1 (Guarantor #2
2
INDEX NO. 613308/2023
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/18/2023
the dates which the Purchased Amount or any portion thereof has been delivered.
2.9 Bankruptcy, As of the date of this Agreement, Merchant does not contemplate filing for bankruptcy in the next six months and has not consulted with a bankruptcy
attorney or filed any petition for bankruptcy protection pursuant to the United States Bankruptcy Code and there has been no involuntary petition brought or pending
against Merchant. Merchant further warrants that, as of the date of this Agreement, it does not anticipate filing any such bankruptcy petition and it does not anticipate that
an involuntary petition will be filed against it.
2.10 Unencumbered Receipts. Merchant has good, complete, unencumbered and marketable title to all Receipts and all collateral in which PURCHASER has been.
granted a security interest under the Security Agreement, free and clear of any and all liabilities, liens, claims, charges, restrictions, conditions, options, rights, mortgages,
security interests, equities, pledges and encumbrances of any kind or nature whatsoever other than in favor of PURCHASER or any other rights or interests that may be
inconsistent with the transactions contemplated with, or adverse to the interests of PURCHASER, other than any for which PURCHASER has actual or constructive
knowledge of as of the date of this Agreement. Merchant shall not enter into any other agreement for the sale of Future Receipts and/or cash advance agreement or
financing or factoring agreement absent PURCHASER’s advance written consent.
2.11 Business Purpose, Merchant is a valid business in good standing under the laws of the jurisdictions in which it is organized and/or operates, and Merchant is
entering into this Agreement for business purposes and not as a consumer for personal, family or household purposes.
2.12 Change of Name or Location or Sale or Closing of Business. Merchant will not conduct Merchant's businesses under any name other than as disclosed to
PURCHASER or change any of its places of business without prior written consent of PURCHASER. Merchant will not voluntarily sell, dispose, transfer or otherwise
voluntarily convey all or substantially all of its business or assets without (i) the express prior written consent of PURCHASER; and (ii) the written agreement of any
purchaser or transferee assuming all of Merchant’s obligations under this Agreement pursuant to documentation satisfactory to PURCHASER. Except as disclosed to
PURCHASER in writing, as of the date of this Agreement, Merchant has no current plans to close its business either temporarily, whether for renovations, repairs or any
other purpose, or permanently. PURCHASER will not voluntarily close its business on a temporary basis for renovations, repairs, or any other purposes without consent
from PURCHASER. This provision, however, does not prohibit Merchant from closing its business temporarily if such closing is required to conduct renovations or
repairs that are required by local ordinance or other legal order, such as from a health or fire inspector, or if otherwise forced to do so by circumstances outside of the
control of Merchant. Prior to any such closure, Merchant will provide PURCHASER ten business days’ notice to the extent practicable.
2.13 Accurate and Complete Information. Merchant represents, warrants, and agrees that all information provided to PURCHASER and all statements made to
PURCHASER relating to this transaction in any way have been truthful, accurate, and complete. Merchant further agrees that Merchant will be truthful in all future
statements to PURCHASER, and will provide PURCHASER with accurate and complete information regarding Merchant’s business as required by this Agreement.
2.14 Merchant to Pay Taxes Promptly. Merchant will promptly pay all necessary taxes, including but not limited to employment and sales and use taxes.
2.15 Good Faith. Merchant and Guarantor(s) hereby affirm that Merchant is receiving the Purchase Price and selling PURCHASER the Purchased Amount in good faith
and wil use the Purchase Price funds to maintain and grow Merchant’s business.
3 EVENTS OF DEFAULT AND REMEDIES
3.1 Events of Default. The occurrence of any of the following events shall constitute an “Event of Default” hereunder:
(a) Merchant violates any term or covenant in this Agreement;
(b) ‘Any representation or warranty by Merchant in this Agreement shall prove to have been incorrect, false or misleading in any material respect when made; and
© Merchant fails to provide its bank statements, and/or month to date banking activity within five (5) business days after a request by PURCHASER.
3.2 Remedies. Upon the occurrence of an Event of Default, PURCHASER may proceed to protect and enforce its rights or remedies by suit in equity or by action at law,
or both, whether for the specific performance of any covenant, agreement or other provision contained herein, or to enforce the discharge of Merchant's obligations
hereunder (including the Guaranty) or any other legal or equitable right or remedy, including but not limited to filing an action, and enforcing the Security Agreement
contained herein. Upon the occurrence of an Event of Default, the Purchased Percentage shall equal 100% and the full undelivered Purchased Amount plus all fees and
charges (including legal fees) assessed under this Agreement will become due and payable in full immediately. Subject to arbitration in Section 5, all rights, powers and
remedies of PURCHASER in connection with this Agreement may be exercised at any time by PURCHASER after the occurrence of an Event of Default, are cumulative
and not exclusive, and shall be in addition to any other rights, powers or remedies provided by law or equity.
3.3 Attorney’s Fees. Upon the occurrence of an Event of Default, if Purchaser retains an attorney or law firm to enforce this Agreement, Merchant and Guarantor(s)
agree that Merchant shall pay PURCHASER’s reasonable attorney’s fees in the amount of 30% of Purchased Amount that is undelivered as of the date of the Event of
Default.
3.4 Costs, Merchant shall pay to PURCHASER all reasonable costs associated with (a) an Event or Default, (b) breach by Merchant of the Covenants in this Agreement
and the enforcement thereof, and(c) the enforcement of PURCHASER’s remedies set forth in this Agreement, including but not limited to collection costs, court costs and
reasonable attorneys’ fees.
4 MISCELLANEOUS
41 Modifications; Agreements. No modification, amendment, waiver or consent of any provision of this Agreement shall be effective unless the same shall be in
writing and signed by PURCHASER.
42 Assignment. PURCHASER may assign, transfer or sell its rights to receive the Purchased Amount or delegate its duties hereunder, either in whole or in part.
4.3 Notices, Except for Reconciliation requests under Section 1.3 of this Agreement, all notices, requests, consents, demands and other communications hereunder shall be
delivered by certified mail, return receipt requested, to the respective parties to this Agreement at the addresses set forth in this Agreement. Notices to PURCHASER shall
become effective only upon receipt by PURCHASER. Notices to Merchant shall become effective three days after mailing.
44 D/B/As. Merchant hereby acknowledges and agrees that PURCHASER may be using “doing business as” or “d/b/a” names in connection with various matters
relating to the transaction between PURCHASER and Merchant, including the filing of UCC-1 financing statements and other notices or filings.
45 Waiver Remedies. No failure on the part of PURCHASER to exercise, and no delay in exercising any right under this Agreement shall operate as a waiver thereof,
nor shall any single or partial exercise of any right under this Agreement preclude any other or further exercise thereof or the exercise of any other right. Subject to
arbitration in Section 5, the remedies provided hereunder are cumulative and not exclusive of any remedies provided by law or equity.
46 Binding Effect; Governing Law, Venue and Jurisdiction. This Agreement, Security Agreement and Guaranty of Performance, and any and all addendums
attachments, exhibits, and other documents relating to this Agreement in any way, shall be binding upon and inure to the benefit of Merchant and Guarantor(s) on the one
hand, and PURCHASER and their respective successors and assigns, except that Merchant and Guarantor(s) shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of PURCHASER which consent may be withheld in PURCHASER’s sole discretion. PURCHASER reserves the rights to
D ¢— _>
Initial(s):. IP
Soe nc
BYZE
syYZr UV N Vor ED 7 ‘Merchant Guarantor #1 (Guarantor #2
3
INDEX NO. 613308/2023
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/18/2023
assign this Agreement with or without prior written notice to Merchant. This Agreement, Security Agreement and Guaranty of Performance, and any and all addendums,
attachments, exhibits, and other documents relating to this Agreement in any way, shall be governed by and construed in accordance with the laws of the state of New
York and the federal Arbitration Act, without regard to any applicable principals of conflicts of law. Any suit, action or proceeding arising hereunder, or the interpretation,
performance or breach hereof, shall, if PURCHASER so elects, be instituted in any New York State Supreme Court sitting in the State of New York, (the “Acceptable
Forums”). All Parties and signatories to this Agreement, including but not limited to, the Merchant and Guarantor(s) agree that the Acceptable Forums are convenient to
it, and submit to the jurisdiction of the Acceptable Forums and waive any and all objections to jurisdiction or venue. Should such proceeding be initiated in any other
forum, Merchant and Guarantor(s) waives any right to oppose any motion or application made by PURCHASER to transfer such proceeding to an Acceptable Forum.
Merchant and Guarantor(s) hereby agree that the mailing of any Summons and Complaint in any proceeding commenced by PURCHASER by certified or
registered mail, return receipt requested to the Mailing Address listed on this Agreement (or any other addresses provided in writing to PURCHASER), will
constitute valid and lawful service of process against them without the necessity for service by any other means provided by statute or rule of court, and such
service shall be deemed complete five (5) days after dispatch.
47 Survival of Representation. All representations, warranties and covenants herein shall survive the execution and delivery of this Agreement and shall continue in
full force until all obligations under this Agreement shall have been satisfied in full and this Agreement shall have terminated.
48 Interpretation, All Parties hereto have had the opportunity to review this Agreement with attorney of their own choosing and have relied only on their own
attorneys’ guidance and advice. No construction determinations shall be made against either Party hereto as drafter.
49 Severability. In case any of the provisions in this Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability
of any other provision contained herein shall not in any way be affected or impaired.
4.10 Entire Agreement, Any provision hereof prohibited by law shall be ineffective only to the extent of such prohibition without invalidating the remaining provisions
hereof. This Agreement and the Security Agreement and Guaranty of Performance hereto embody the entire agreement between Merchant, Guarantor(s) and Corporate
Guarantor(s) and PURCHASER and supersede all prior agreements and understandings relating to the subject matter hereof.
4.11 Eacsimile & Digital Acceptance. Facsimile signatures and digital signatures hereon shall be deemed acceptable for all purposes.
4.12 JURY TRIAL WAIVER. THE PARTIES HERETO WAIVE TRIAL BY JURY IN ANY COURT IN ANY SUIT, ACTION OR PROCEEDING ON ANY
MATTER ARISING IN CONNECTION WITH OR IN ANY WAY RELATED TO THE TRANSACTIONS OR THE ENFORCEMENT HEREOF. THE PARTIES
HERETO ACKNOWLEDGE THAT EACH MAKES THIS WAIVER KNOWINGLY, WILLINGLY AND VOLUNTARILY AND WITHOUT DURESS, AND ONLY
THE OPPORTUNITY TO CONSIDER THE RAMIFICATIONS OF THIS WAIVER WITH THEIR ATTORNEYS.
4.13 CLASS ACTION WAIVER. THE PARTIES HERETO WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A
REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW AS
AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR
REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES HEREBY AGREE THAT: (1) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO
RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY
OTHER PROVISION IN THIS AGREEMENT); AND (2) THE PARTY WHO INITIATES OR PARTICIPATES AS AMEMBER OF THE CLASS WILL
NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
5. ARBITRATION
IF PURCHASER, MERCHANT OR ANY GUARANTOR REQUESTS, THE OTHER PARTIES AGREE TO ARBITRATE ALL DISPUTES AND CLAIMS
ARISING OUT OF OR RELATING TO THIS AGREEMENT. IF PURCHASER, MERCHANT OR ANY GUARANTOR SEEKS TO HAVE A DISPUTE
SETTLED BY ARBITRATION, THAT PARTY MUST FIRST SEND TO ALL OTHER PARTIES, BY CERTIFIED MAIL, A WRITTEN NOTICE OF
INTENT TO ARBITRATE. IF PURCHASER, MERCHANT OR ANY GUARANTOR DO NOT REACH AN AGREEMENT TO RESOLVE THE CLAIM
WITHIN 30 CALENDAR DAYS AFTER THE NOTICE IS RECEIVED, PURCHASER, MERCHANT OR ANY GUARANTOR MAY COMMENCE AN
ARBITRATION PROCEEDING WITH THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) OR THE FORUM. PURCHASER WILL PROMPTLY
REIMBURSE MERCHANT OR THE GUARANTOR FOR ANY ARBITRATION FILING FEE, HOWEVER, IN THE EVENT THAT BOTH MERCHANT
AND THE GUARANTOR MUST PAY FILING FEES, PURCHASER WILL ONLY REIMBURSE MERCHANT’S ARBITRATION FILING FEE AND,
EXCEPT AS PROVIDED IN THE NEXT SENTENCE, PURCHASER WILL PAY ALL ADMINISTRATION AND ARBITRATOR FEES. IF THE
ARBITRATOR FINDS THAT EITHER THE SUBSTANCE OF THE CLAIM RAISED BY MERCHANT OR THE GUARANTOR OR THE RELIEF
SOUGHT BY MERCHANT OR THE GUARANTOR IS IMPROPER OR NOT WARRANTED, AS MEASURED BY THE STANDARDS SET FORTH IN
FEDERAL RULE OF PROCEDURE 11(B), THEN PURCHASER WILL PAY THESE FEES ONLY IF REQUIRED BY THE AAA OR FORUM RULES.
MERCHANT AND THE GUARANTOR AGREE THAT, BY ENTERING INTO THIS AGREEMENT, THEY ARE WAIVING THE RIGHT TO TRIAL BY
JURY. PURCHASER, MERCHANT OR ANY GUARANTOR MAY BRING CLAIMS AGAINST ANY OTHER PARTY ONLY IN THEIR INDIVIDUAL
CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER,
PURCHASER, MERCHANT AND ANY GUARANTOR AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS FOR MORE
THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING,
AND THAT IF THIS SPECIFIC PROVISION DEALING WITH THE PROHIBITION ON CONSOLIDATED, CLASS OR AGGREGATED CLAIMS IS
FOUND UNENFORCEABLE, THEN THE ENTIRETY OF THIS ARBITRATION CLAUSE SHALL BE NULL AND VOID. THIS AGREEMENT TO
ARBITRATE IS GOVERNED BY THE FEDERAL ARBITRATION ACT AND NOT BY ANY STATE LAW REGULATING THE ARBITRATION OF
DISPUTES. THIS AGREEMENT IS FINAL AND BINDING EXCEPT TO THE EXTENT THAT AN APPEAL MAY BE MADE UNDER THE FAA. ANY
ARBITRATION DECISION RENDERED PURSUANT TO THIS ARBITRATION AGREEMENT MAY BE ENFORCED IN ANY COURT WITH
JURISDICTION. THE TERMS “DISPUTES” AND “CLAIMS” SHALL HAVE THE BROADEST POSSIBLE MEANING.
RIGHT TO OPT OUT OF ARBITRATION: MERCHANT AND GUARANTOR(S) MAY OPT OUT OF THE ARBITRATION CLAUSE ABOVE. TO OPT
OUT OF THIS ARBITRATION CLAUSE, MERCHANT AND EACH GUARANTOR MUST SEND PURCHASER A NOTICE THAT THE MERCHANT
AND EACH GUARANTOR DOES NOT WANT THIS CLAUSE TO APPLY TO THIS AGREEMENT. FOR ANY OPT OUT TO BE EFFECTIVE,
MERCHANT AND EACH GUARANTOR MUST SEND AN OPT OUT NOTICE TO THE FOLLOWING ADDRESS BY REGISTERED MAIL, WITHIN 14
CALENDAR DAYS AFTER THE DATE OF THIS AGREEMENT: BYZFUNDER, LLC HEAD OF OPERATIONS, ARBITRATION OPT OUT, 530 7th Ave
Suite 505, New York, NY 10018.
_— —_ ~
Initial(s):. > LD
no
BYZE
syYZr ED
Vor 7 Merchant Guarantor #1 7 Gkarantor #2
4
INDEX NO. 613308/2023
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/18/2023
SECURITY AGREEMENT AND GUARANTY OF PERFORMANCE
THE TERMS, DEFINITIONS, CONDITIONS AND INFORMATION SET FORTH IN THE “REVENUE PURCHASE AGREEMENT”, INCLUDING THE
“MERCHANT AGREEMENT TERMS AND CONDITIONS”, ARE HEREBY INCORPORATED IN AND MADE A PART OF THIS SECURITY AGREEMENT AND
GUARANTY OF PEFORMANCE. CAPITALIZED TERMS NOT DEFINED IN THIS SECURITY AGREEMENT AND GUARANTY SHALL HAVE THE MEANING
SET FORTH IN THE REVENUE PURCHASE AGREEMENT, INCLUDING THE MERCHANT AGREEMENT TERMS AND CONDITIONS.
Merchant’s Legal Name: Fiji Outdoors LLC
DIB/A: Fiji Outdoors Federal 1Dt: >
Physical Address: 3227 Atlantic Boulevard City: Jacksonville State: FL Zip: 32207
ACKNOWLEDGMENT OF SECURITY INTEREST AND SECURITY AGREEMENT. The Future Receipts sold by Merchant to Purchaser pursuant to the
Revenue Purchase Agreement shall constitute and shall be construed and treated for all purposes as a true and complete sale, conveying good title to the Future Receipts
free and clear of any liens and encumbrances, from Merchant to Purchaser. To the extent the Future Receipts are “accounts” or “payment intangibles” as those terms are
defined in the Uniform Commercial Code as in effect in the state in which the Merchant is located (“UCC”) then: (i) the sale of the Future Receipts creates a security
interest as defined in the UCC; (ii) this Security Agreement constitutes a “security agreement” under the UCC; and (iii) Purchaser has all the rights of a secured party
under the UCC with respect to such Future Receipts. Merchant further agrees that, with or without an Event of Default, Purchaser may notify account debtors, or other
persons obligated on the Future Receipts, or holding the Future Receipts, of Merchant’s sale of the Future Receipts and may instruct them to make payment or otherwise
render performance to or for the benefit of Purchaser.
Negative Pledge. Merchant and Guarantor(s) each agrees not to create, incur, assume, or permit to exist, directly or indirectly, any lien on or with respect to the Future
Receipts.
GUARANTY OF PERFORMANCE
Each Guarantor is an owner of Merchant and is involved in the day-to-day business operations of Merchant. Each Guarantor agrees to irrevocably, absolutely and
unconditionally guarantee to Purchaser prompt and complete performance of the following obligations of Merchant (the “Guaranteed Obligations”):
1 Merchant’s obligation provide its bank statements, and/or month to date banking activity within five (5) business days after a request by Purchaser,
2. Merchant’s obligation to not enter into any other agreement for the sale of Future Receipts and/or cash advance agreement or financing or factoring agreement
absent Purchaser’s advance written consent.
Merchant’s obligation to deposit all Future Receipts in the Account and to not revoke authorization for Purchaser to debit the Account or change the Processor,
add processing terminals, change its financial institution or bank account(s), without Purchaser’s prior written consent.
Merchant’s obligation to not conduct Merchant’s businesses under any name other than as disclosed to the Processor and Purchaser, or change any of its places
of business without prior written consent by Purchaser.
Merchant’s obligation to provide truthful, accurate, and complete information.
Guarantor(s) Waivers. Purchaser does not have to notify Guarantor of any of the following events and Guarantor will not be released from its obligations under the
Revenue Purchase Agreement and this Personal Guaranty of Performance if it is not notified of: (i) Merchant’s failure to timely perform any obligation under the Revenue
Purchase Agreement; (ii) any adverse change in Merchant's financial condition or business; (iii) Purchaser’s acceptance of the Revenue Purchase Agreement; and (iv) any
renewal, extension or other modification of the Revenue Purchase Agreement or Merchant’s other obligations to Purchaser. In addition, Purchaser may take any of the
following actions without releasing Guarantor from any of its obligations under the Revenue Purchase Agreement and this Guaranty of Performance, (i) renew, extend or
otherwise modify the Revenue Purchase Agreement or Merchant’s other obligations to Purchaser; and (ii) release Merchant from its obligations to Purchaser. Guarantor
shall not seek reimbursement from Merchant or any other guarantor for any amounts paid by it under the Revenue Purchase Agreement or this Personal Guaranty of
Performance. Guarantor permanently waives and shalll not seek to exercise any of the following rights that it may have against Merchant, or any other guarantor, for any
amounts paid by it, or acts performed by it, under the Revenue Purchase Agreement or this Personal Guaranty of Performance: (i) subrogation; (ii) reimbursement; (iii)
performance; (iv) indemnification; or (v) contribution.
This Security Agreement and Guaranty of Performance shall be governed by and construed in accordance with the laws of the state of New York, without regards to any
applicable principals of conflicts of law. Any suit, action or proceeding arising hereunder, or the interpretation, performance or breach hereof, shall, if Purchaser so elects,
be instituted in any state Supreme Court sitting in the State of New York, (the “Acceptable Forums”). Merchant and Guarantor(s) agree that the Acceptable Forums are
convenient to it, and submits to the jurisdiction of the Acceptable Forums and waives any and all objections to jurisdiction or venue. Merchant and Guarantor(s) agree that
the Acceptable Forums are convenient to it, and submit to the jurisdiction of the Acceptable Forums and waives any and all objections to jurisdiction or venue. Should such
proceeding be initiated in any other forum, Merchant and Guarantor waive any right to oppose any motion or application made by Purchaser to transfer such proceeding to
an Acceptable Forum.
‘The Merchant and Guarantor(s) acknowledge that they have read Section 4.6 of the Revenue Purchase Agreement in its entirety and understand that they are waiving their
right to Service of Process by traditional manners and will accept process of any Summons and Complaint or other legal process by certified mail return receipt requested
to the Mailing Address on Page 1 of this Agreement (or any other addresses provided in writing to PURCHASER) and that service shall be deemed completed five (5)
days after dispatch.
Guarantor(s) Acknowledgement and Agreement to Class Action Waiver and Arbitration. Guarantor(s) acknowledges that: (i) He/She is bound by the Class
Action Waiver and Arbitration provisions in the Revenue Purchase Agreement; (ii) He/She understands the seriousness of the Class Action Waiver and Arbitration
provisions; i) He/She has had a full opportunity to consult with counsel of hi her choice; and (iv) He/She has consulted with counsel of its choice or has decided
not to avail imself/herself of that opportuni
D ¢— _~
Initial(s):. IP
Soe aes
BYZE
syYZr UV N Vor
ED 7 Merchant Guarantor #1 (Guarantor #2
5
INDEX NO. 613308/2023
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/18/2023
FOR ALL MERCHANT(S) (#1) By:
Trevor James Rosendahl, Member
Lrevor sepelf
(Print Name and Title) (Signature)
ssi aD
Jason Thomas Babin, Member
FOR ALL MERCHANT(S) (#2) By: ~ D
(Print Name and Title) ame
Trevor James Rosendahl, Member DD
GUARANTOR(S) (#1) By: LEUOL Koen ae
(Print Name and Title) (Signature)
Jason Thomas Babin, Member
GUARANTOR(S) (#2) By:
(Print Name and Title) Goat ;
sv D>
_. _ _~
Initial(s):. > LP
no
BYZFEU
YL ED
Vor 7 Merchant Guarantor #1 C7 Gibatantor #2 an
6
INDEX NO. 613308/2023
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/18/2023
APPENDIX A - THE FEE STRUCTURE:
Origination Fee - $1,500.00 to be deducted from the Purchase Price prior to funding.
Processing Fee - $275.00 for the setup and maintenance of the account to be deducted from the Purchase Price prior to funding.
NSF Fee (Standard) - $50.00 (each)
Default Fee - $2,500.00
Bank Change Fee - $50.00 When Merchant requires a change of Bank Account to be debited, requiring us to adjust our system.
FOR THE MERCHANT(S) (#1) By:
Trevor James Rosendahl, Member
Lr Rowena tO”
(Print Name and Title) (Signature)
Jason Thomas Babin, Member
FOR THE MERCHANT(S) (#2) By: D 7
(Print Name and Title) (Signétarey ©
_— _ _~
Initial(s):. > LP
no
BYZFEU
syYZr ED
Vor 7 Merchant Guarantor #1 7 Gkarantor #2 an
7
INDEX NO. 613308/2023
NYSCEF DOC. NO. 2 RECEIVED NYSCEF 08/18/2023
AUTHORIZATION AGREEMENT FOR DIRECT DEPOSIT (ACH CREDIT) AND DIRECT PAYMENTS (ACH DEBITS)
Trevor James Rosendahl
Merchant:
(Merchant’s Legal Name)
Merchant Agreement: Merchant Agreement between Purchaser and Merchant, dated as of 04/19/2023
Designated Checking Account:
Bank Name: SYNOVUS BANK Branch:
Tax ID: aa=D>
ABA: Routing:
GD bpA: Account:
Capitalized terms used in this Authorization Agreement without definition shall have the meanings set forth in the Merchant Agreement.
By signing below, Merchant attests that the Designated Checking Account was established for business purposes and not primarily for personal, family or household
purposes. This Authorization Agreement for Direct Deposit (ACH Credit) and Direct Payments (ACH Debits) is part of (and incorporated by reference into)
the Merchant Agreement. Merchant should keep a copy of this important legal document for Merchant’s records.
DISBURSEMENT OF ADVANCE PROCEEDS. By signing below, Merchant authorizes Purchaser to disburse the Advance proceeds less the amount of any applicable
fees upon Advance approval by initiat
Related Content
in Nassau County
Ruling
Saulus, Marijati vs. American Honda Motor Company Inc.
Jul 22, 2024 |
S-CV-0052424
S-CV-0052424 Saulus, Marijati vs. American Honda Motor Company
** NOTE: telephonic appearances are strongly encouraged
NOTE: Defendant has not paid advance jury fees pursuant to CCP § 631.
Trial Date & Length: 11/17/25 6 day Non Jury Trial
(Please contact Master Calendar (916) 408-6061 on the business day
prior to the scheduled trial date to find courtroom availability.)
Civil Trial Conference: 11/07/25
(heard at 8:30 am in Dept. 3)
Mandatory Settlement Conference: 10/31/25
(heard at 8:30am; report to Jury Services)
NO APPEARANCE REQUIRED UNLESS REQUESTED BY PARTY BY 3PM ON
THE THURSDAY PRIOR TO HEARING DATE. REQUESTS FOR
APPEARANCE MUST BE FAXED TO THE CIVIL DEPARTMENT, ATTN: CMC
CLERK AT (916) 408-6275, AND TO ALL OPPOSING ATTORNEYS AND
PARTIES WITHOUT ATTORNEYS BY 3:00 PM THE THURSDAY PRIOR TO
THE CASE MANAGEMENT DATE. SEE LOCAL RULE 20.1.7.
Ruling
MIRALESTE CANYON ESTATES, A CALIFORNIA NON-PROFIT MUTUAL BENEFIT CORPORATION VS ROBERT BELIVEAU
Jul 11, 2024 |
23LBCV02290
Case Number:
23LBCV02290
Hearing Date:
July 11, 2024
Dept:
S27
1.
Complaint
Plaintiff, Miraleste Canyon Estates filed this action against Defendant, Robert Beliveau for breach of CC&Rs, breach of contract, nuisance, and declaratory relief.
Plaintiff filed its complaint on 12/01/23.
Plaintiff filed proof of service of the summons and complaint on Defendant on 4/05/24.
Defendant responded to the complaint by filing a special motion to strike on 5/31/24.
2.
Motion to Strike
a.
Procedural History of Motion
Defendant filed this special motion to strike on 5/31/24, setting it for hearing on 7/11/24.
Plaintiff filed timely opposition papers on 6/27/24.
On the same day, Defense Counsel substituted out of the action and Defendant commenced representing himself in these proceedings.
Defendant has not, to date, filed a reply to Plaintiffs opposition.
Defendant did, however, file additional declarations relating to the motion on 7/05/24, 7/08/24, and 7/09/24.
b.
Law Governing Anti-SLAPP Motions
Pursuant to Navellier v. Sletten, (2002) 29 Cal. 4th 82, 88 89, Section 425.16 posits instead a two-step process for determining whether an action is a SLAPP.
First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e) (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043). If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (§ 425.16, subd. (b)(1); see generally Quilon, supra, 29 Cal. 4th at p. 67.)"
Pursuant to Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn., (2006) 136 Cal. App. 4th 464, 476, In order to establish a probability of prevailing on the claim (§ 425.16, subd. (b)(1)), a plaintiff responding to an anti SLAPP motion must state[] and substantiate[] a legally sufficient claim. (Briggs v. Eden Council for Hope & Opportunity[, supra,] 19 Cal.4th 1106, 1123, quoting Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 412.) Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.
c.
First Prong of Analysis
Defendant has the moving burden to establish the first prong of the analysis, which is that the complaint arises out of protected activity under the statute.
Defendant contends the complaint arises out of his protected free speech and petitioning activity, including emailing public agencies to inform them of Plaintiffs embezzlement, defamation, assault, and extortion.
Plaintiff, in opposition to the motion, contends the free speech and petitioning activity is merely incidental to the complaint, which is primarily based on Defendants verbal and physical intimidation and harassment of Plaintiff.
The Court need not determine, in connection with this motion, whether Defendant established the first prong of the test.
This is so because, as will be discussed below, the Court finds Plaintiff met its burden of showing a probability of success on the merits, and therefore the threshold issue of whether the statute applies need not be determined.
d.
Second Prong, Probability of Success on the Merits
i.
Law re: Second Prong
The probability of prevailing is tested by the same standard governing a motion for summary judgment, nonsuit or directed verdict. I.e., in opposing an anti-SLAPP motion, it is plaintiff's burden to make a prima facie showing of facts that would support a judgment in plaintiff's favor.
Taus v. Loftus (2007) 40 Cal.4th 683, 714.
The court does not weigh credibility or the comparative strength of the evidence. The court considers defendant's evidence only to determine if it defeats plaintiff's showing as a matter of law. Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.
ii.
Plaintiffs Burden of Proof
With respect to its nuisance cause of action, Plaintiff provides evidence that Defendant uses profanity-laced verbal assaults at HOA meetings, up-ended a table during a meeting, and has engaged in violent and conflictive behavior with neighbors, including throwing their childrens toys and intentionally over-watering and leaving puddles in front of units.
Plaintiff also provides evidence that Defendant has sent hundreds of emails to the Association using derogatory and defamatory attacks toward the Board and other Owners, referencing their sexual orientation.
With respect to the breach of CC&Rs and breach of contract causes of action, Plaintiff provides evidence that the parties entered into a 2017 stay away agreement, which Defendant breached through the foregoing conduct.
Plaintiff provides evidence that the CC&Rs prevent nuisances, which Defendants conduct, detailed above, would violate.
Finally, Plaintiff shows that the claim for declaratory relief can succeed on its merits, as it rises and falls with the other claims.
Defendant, in his reply declarations, disputes each of Plaintiffs showings.
This serves, however, to show that there are triable issues of material fact concerning Plaintiffs claims.
As discussed above, the Court does not weigh the evidence at this stage of the proceedings, and decides the matter using a summary judgment standard.
The motion is therefore denied.
e.
Attorneys Fees
Plaintiff seeks to recover its attorneys fees and costs in the amount of $5076.65.
CCP §425.16(c)(1) permits a plaintiff who prevails on an anti-slapp motion to recover fees if and only if the Court finds the motion was frivolous or solely intended to cause unnecessary delay.
Because the action does involve Defendants rights to petition and speak, the Court finds the motion was neither frivolous nor solely intended to cause delay.
The request for fees is denied.
3.
Motion for Sanctions
On 6/12/24, the Court held an OSC re: sanctions for failure to prosecute.
The Court noted Plaintiff had filed a brief in opposition to the OSC, and set the matter for hearing as a motion on 7/11/24.
The Court has read Plaintiffs attorneys 6/11/24 declaration and discharges the OSC re: sanctions, finding Plaintiff has taken steps to prosecute the case such that imposition of sanctions is not appropriate.
Plaintiff is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at
gdcdepts27@lacourt.org
indicating intention to submit on the tentative as directed by the instructions provided on the court website at
www.lacourt.org
.
If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar
.
If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative.
If the parties do not submit on the tentative, they should arrange to appear remotely.
Ruling
CREEKSIDE LOGGING VS. APPLIED UNDERWRITERS
Jul 11, 2024 |
CVCV16-0185312
CREEKSIDE LOGGING VS. APPLIED UNDERWRITERS
Case Number: CVCV16-0185312
This matter is on calendar for review regarding status of the case. No status report has been filed. An appearance
is necessary on today’s calendar to provide the Court with an update regarding the status of the injunction
against litigation.
Ruling
GARY R. BELZ, AN INDIVIDUAL, AS REPRESENTATIVE FOR THE BENEFIT OF HIMSELF AND GARY BELZ FAMILY LP, A LIMITED PARTNERSHIP VS CYBER 1 LLC, A LIMITED LIABILITY CORPORATION, ET AL.
Jul 11, 2024 |
23STCV09558
Case Number:
23STCV09558
Hearing Date:
July 11, 2024
Dept:
58
Judge Bruce Iwasaki
Department 58
Hearing Date:
July 11, 2024
Case Name:
Gary R. Belz, et al. v. Cyber 1 LLC, et al.
Case No.:
23STCV09558
Motion:
Motion for Summary Judgment, or in the alternative, Summary Adjudication
Moving Party:
Plaintiff Gary R. Belz, et al.
Responding Party:
Defendants Cyber 1, LLC, Norman Kravetz and Douglas Jacobsen
Tentative Ruling:
Plaintiffs Motion for Summary Judgment is granted.
Based on the undisputed facts, (1) Defendants defaulted on their obligations under the Note and personal guarantees; and (2)there is currently an outstanding balance of $4,883,666.77.
Based on the undisputed facts, Plaintiff is also the owner of the collateral pledged as security for the personal guarantees executed by Defendants Kravetz and Jacobsen.
No triable issues of fact remain as to any of the causes of action alleged in the complaint.
I.
Background
Plaintiff Gary R. Belz, as representative for the benefit of himself and Gary Belz Family LP (collectively, Lender) provided a single credit facility of $4,550,000 evidenced by a Promissory Note (the Note) executed by Defendant Cyber 1 LLC (Cyber 1).
The Note was personally guaranteed by Defendants Norman Kravetz and Douglas Jacobsen.
It is undisputed that Cyber 1 failed to make a principal payment amount on February 1, 2023 in the amount of $450,000.
Cyber 1 has also failed to pay three months of interest on the Note.
Under the Note, Lender is entitled to the entirety of the remaining principal balance, plus interest and attorneys fees.
On April 26, 2023, Lender filed a complaint against Defendants Cyber 1, Kravetz and Jacobsen alleging (1) breach of contract Note; (2) breach of contract Personal Guarantees; and (3) declaratory relief.
II.
Evidentiary Objections
Defendants Objection to paragraph 4 of the Gurvitz Declaration is overruled. (Evid. Code, §§1221 and 1222.)
III.
Defendants Request for Judicial Notice
Defendants RJN of the White House announcement passing HR Bill 2617 on December 29, 2022 and HR Bill 2882 on March 23, 2024 is granted pursuant to Evidence Code section 452, subdivision (c)(official acts of the&executive&departments of the United States&).
IV.
Discussion
A.
Legal Standard
A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Code Civ. Proc., §437c, subd. (p)(1).)
A party is entitled to summary judgment only if it meets its initial burden of showing there are no triable issues of fact and the moving party is entitled to judgment as a matter of law. This is true even if the opposing party fails to file any opposition.
The court's assessment of whether the moving party has carried its burdenand therefore caused a shiftoccurs before the court's evaluation of the opposing party's papers.
Therefore, the burden on the motion does not initially shift as a result of what is, or is not, contained in the opposing papers.
(
Mosley v. Pacific Specialty Insurance Company
(2020) 49 Cal.App.5th 417, 434435 (landlords failure to address issue of whether they were aware of their tenants marijuana growing operation was not grounds to grant summary judgment where moving party failed to satisfy its initial burden as to the issue);
Thatcher v. Lucky Stores, Inc.
(2000) 79 Cal.App.4th 1081, 1086-1087 (court cannot grant summary judgment based merely on lack of opposition; court must first determine if the moving party has satisfied its burden).
In addition, the evidence and affidavits of the moving party are construed strictly, while those of the opponent are liberally read.
(
Government Employees Ins. Co. v. Sup. Ct.
(2000) 79 Cal.App.4th 95, 100.)
All doubts as to the propriety of granting the motion (whether there is any issue of material fact [Code of Civil Procedure] § 437c) are to be resolved in favor of the party opposing the motion (i.e., a denial of summary judgment).
(
Hamburg v. Wal-Mart Stores, Inc.
(2004) 116 Cal.App.4th 497, 502.)
B.
No triable issues of fact remain as to the 1
st
cause of action for breach of contract and 2
nd
cause of action for breach of personal guarantees
Lender moves for summary judgment of its entire complaint.
Lender alleges three causes of action for breach of contract based on three separate agreements:
(1) the Note with Cyber 1; (2) the personal guaranty of the Note executed by Kravetz; and (3) the personal guaranty of the Note executed by Belz.
To prevail on Lenders claims for breach of the Note against Cyber 1 Lender must establish:
(1) existence of the contract; (2) Lender's performance; (3) Cyber 1s breach; and (4) damages.
(
First Commercial Mortgage Co. v. Recce
(2001) 89 Cal.App.4th 731, 745.)
To prevail on Lenders claims for breach of Kravetzs and Jacobsens personal guarantees, Lender need only establish that (1) Kravetz and Jacobsen executed an agreement assuming liability for Cyber 1s debt under the Note; (2) Cyber 1, the principal debtor, defaulted on its underlying obligations; and (3) Kravetz and Jacobsen breached their obligation to pay upon default of the Cyber 1.
(Civ. Code, §2807;
R.P. Richards, Inc. v. Chartered Const. Corp.
(2000) 83 Cal.App.4th 146, 154.)
Lender establishes that Cyber 1 executed a Promissory Note on February 15, 2022 whereby Cyber 1 borrowed $4,550,000 from Lender subject to certain explicit repayment obligations.
(Plaintiffs SSUMF No.1; Belz Dec., ¶2, Ex. 1.)
Lender provided the credit facility as reflected in the Note.
(Belz Dec., ¶2.)
Lender establishes that under the Note, Cyber 1 was required to pay the principal balance of $4,550,000 in four annual installments:
(1) $450,000 on February 1, 2023; (2) $600,000 on February 1, 2024; (3) $1,000,000 on February 1, 2025; and (4) the remaining principal balance on February 1, 2026.
(Plaintiffs SSUMF No. 2; Belz Dec., Ex. 1, ¶1.)
On February 15, 2022, Kravetz and Jacobsen also executed separate personal guarantees guaranteeing the Note.
(Plaintiffs SSUMF Nos. 9 and 10; Belz Dec., Exs. 2 and 3.)
Under their guarantees, Kravetz and Jacobsen promised to pay all principal and interest whenever it became due, including any accelerated balance, upon Cyber 1s failure to pay.
(Plaintiffs SSUMF No. 12; Bezl Dec., Exs. 2-3, Section 1.)
In addition, Kravetz and Jacobsen pledged 7.5% each of their outstanding membership interests in Equity Orchestration LLC as collateral for the guarantees.
(Plaintiffs SSUMF No. 14, Ex. 4, Section 1.)
Cyber 1 failed to make the first payment due under the Note in the amount of $450,000 on or before February 1, 2023.
(Plaintiffs SSUMF No. 16; Belz Dec., ¶4.)
Cyber 1 failed to tender any interest payments from February 2023 to the present.
(Plaintiffs SSUMF No. 18.; Belz Dec., ¶¶6, 9.)
On March 21, 2023, Lender sent notice to Defendants of Cyber 1s breach of its obligation to pay the first installment by February 1, 2023 in the amount of $450,000.
(Plaintiffs SSUMF No. 21, Gurvitz Dec., Ex. 5 (Lenders March 21, 2023 Written Notice).)
On April 3, 2023, Defendants informed Lender that they could not make the required payments and cure their breach.
(Plaintiffs SSUMF No. 22; Gurvitz Dec., ¶4.)
Kravetz and Jacobsen have also refused to tender the collateral as required by the Pledge Agreement in support of their personal guarantees.
(Plaintiffs SSUMF No. 23; Belz Dec., ¶10.)
Plaintiff submits evidence that the full amount of the Note ($4,550,000) is due.
Plaintiff also submits evidence that there is currently $333,666.77 due in interest.
(Plaintiffs SSUMF No. 19; Belz Dec., ¶¶6-9.)
Lender therefore establishes (1) the existence of the Note with Cyber 1 and the personal guarantees with Kravetz and Jacobsen; (2) Lender performance of its obligations by providing Cyber 1 with the $4,550,000 credit facility; (3) Defendants breach of the Note and the personal guarantees based on their failure to make the first payment due on February 1, 2023 and the failure to pay interest within 10 days of receiving notice of their default; and (4) the damages suffered as a result of the breach ($4,550,000 + $333,666.77 = $4,883,66.77).
The burden therefore shifts to Defendants to raise a triable issue of material fact as to the first and second causes of action for breach of contract.
(CCP §437c(p)(1).)
Defendants fail to do so.
Defendants fail to raise a triable issue of fact or establish an affirmative defense to the causes of action.
i.
Defendants defenses based on course of conduct and commercial impracticability fail to raise a triable issue of fact as to the breach element of Plaintiffs first and second causes of action for breach of the Note and breach of the personal guarantees
Defendants concede that they failed to make the first principal payment due under the Note and the personal guarantees or interest payments from February 1, 2023 onward.
(Defendants Responses to SSUMF Nos. 16-23.)
However, they claim they are not in breach due to the parties course of dealing and commercial impracticability.
Course of dealing
.
According to Defendants, in prior dealings involving short term obligations, Plaintiff adjusted these obligations to avoid default.
(Defendants Additional Material Fact (AMF) No. 28, Kravetz Dec., ¶11, Ex. C.)
Defendants contend they made monthly interest payments until January 2023 on the Note and the personal guarantees, which was consistent with the parties prior course of conduct.
(Defendants AMF No. 32; Kravetz Dec., ¶¶38-43; Jacobsen Dec., ¶¶10-15.)
Defendants testify that Lenders current actions of putting them in default and filing this lawsuit contradicts Lenders prior course of conduct.
(Defendants AMF No. 34; Belz Depo., Ex. M, pp. 44, 49-50; Kravetz Dec., ¶¶2-43; Jacobsen Dec., ¶¶2-15.)
Defendants fail to establish that the Note or the personal guarantees were uncertain or indefinite, such that the Court must resort to the parties course of dealing to interpret the contract and determine the obligations thereunder.
Defendants rely on
California Lettuce Growers v. Union Sugar Co.
(1955) 45 Cal.2d 474 as authority for the proposition that they are not in breach of the Note or personal guarantees based on the parties course of dealing in connection with prior transactions that are entirely unrelated to the Note.
California Lettuce Growers
is inapposite.
In
California Lettuce Growers
, the defendant argued it was not obligated under the parties agreement to purchase beets delivered to it by plaintiff, because the parties agreement did not specify a price, time and place of delivery and was therefore unenforceable as illusory and void. (
California Lettuce Growers
,
supra
, 45 Cal.2d at 481.
Here, Defendants do not argue that the Note or the personal guarantees are illusory and void.
The court in
California Lettuce Growers
resorted to the parties and the industrys course of dealing to fill in the unstated terms of price, time and place of delivery.
(
Id.
at 483.)
Defendants provide no authority for their attempt to use course of dealing to amend clear and definite obligations in an agreement.
Commercial impracticability
.
[W]here performance remains possible, the doctrine of impossibility or impracticability excuses performance of a contractual obligation when performance is impossible or extremely impracticable.
A thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can only be done at an excessive and unreasonable cost.
Circumstances that may make performance more difficult or costly than contemplated when the agreement was executed do not constitute impossibility.
A party cannot avoid performance simply because it is more costly than anticipated or results in a loss.
(
KB Salt Lake III, LLC v. Fitness Intern., LLC
(2023) 95 Cal.App.5
th
1032, 1058-1059 (affirming summary judgment of landlords unlawful detainer action for nonpayment of rent; defendant failed to present any evidence that cost of paying rent as obligated under the lease could only have been done at an excessive and unreasonable cost due to COVID shutdown).)
Defendants submit evidence that they suffered a number of financial setbacks due to the COVID shutdown.
(Kravetz Dec., ¶35.)
Such arguments have been rejected.
(
KB Salt Lake III, LLC, supra,
95 Cal.App.5
th
at 1058-1059;
SVAP III Poway Crossings, LLC v. Fitness International, LLC
(2023) 87 Cal.App.5
th
882, 895-896 (impracticability did not apply to excuse lessee from lease payments on health club even though COVID shutdown prevented it from operating the health club, which it maintained was the purpose of the lease).)
Defendants fail to establish based on the evidence presented that repaying the Note in accordance with the schedule could only have been done at excessive and unreasonable cost.
Defendants do not present evidence as to what they would have had to do to satisfy the payments under the Note.
They only state that they suffered severe financial setbacks due to COVID policy.
Defendants fail to establish that they were discharged from their obligations under the Note and the personal guarantees due to impracticability.
ii.
Defendants fail to raise a triable issue as to damages based on offset
Defendants argue there are triable issues of fact as to damages, because they are entitled to an offset for the collateral pledged as security for the Pledge Agreement.
However, Defendants present no evidence as to the value of the collaterala 15% membership interest in Equity Orchestration LLCnor may the Court assume that the value of such an interest is greater than zero.
Defendants therefore fail to raise a triable issue of fact as to the first and second causes of action for breach of contract based on offset.
C.
No triable issues of fact remain as to Plaintiffs declaratory relief claim and summary adjudication is properly granted as to the third cause of action for declaratory relief
In Lenders third cause of action for declaratory relief, Lender seeks an order declaring that Defendants Kravetz and Jacobsen have no right to the Equity Orchestration membership interests and that these interests are the sole and exclusive property of the Lender.
(Complaint, ¶40.)
Lender contends that, upon Defendants default, right to ownership of the Equity Orchestration LLC membership interests transferred to Lender based on Section 5 of the Pledge Agreement.
(Complaint, ¶38.)
Lender does not seek a declaratory order regarding the value of the 15% interest in Equity Ownership pledged as collateral for the personal guarantees.
Lender establishes that Kravetz and Jacobsen pledged their respective 7.5% membership interests in Equity Orchestration LLC in the Pledge Agreement executed in connection with the personal guarantees on February 15, 2022.
(Plaintiffs Separate Statement, Issue No. 3, SSUMF No. 14,. Belz Dec., Ex. 4, Section 1.)
As discussed above, Defendants failed to make the first principal payment due under the Note, nor did they pay any interest due from February 1, 2023 onward.
(Plaintiffs SSUMF Nos. 17-18; Belz Dec., ¶¶6-9, Ex. 2-3, Section 1.)
Lender provided notice of the default to Defendants on March 21, 2023 and Defendants confirmed on April 3, 2023 that they were unable to make the payments.
(Plaintiffs SSUMF Nos. 21-22, Gurvitz Dec., ¶4; Ex. 5 (Lenders March 21, 2023 Written Notice).)
Kravetz and Jacobsen have also refused to tender their interests as required under the Pledge Agreements.
(Plaintiffs SSUMF NO. 23.)
However, section 5 of the Pledge Agreement does not automatically grant Lender rights in the membership interests upon Default, nor does it create any obligation on Defendants to voluntarily transfer the membership interests to Lender.
(Belz Dec., Ex. 4, Section 5.)
Instead, section 5 states as follows:
If a Pledgor shall default in payment of any Obligations or be in violation of any provision hereunder or under any promissory note or other document, instrument or agreement evidencing or relating to the Obligations, in each case, after giving effect to any applicable cure period (any such default, a Default), the Pledgee
will have all rights and remedies of a secured party after default under the UCC and other applicable law
.
(
Id.
)
Based on the Pledge Agreement, Defendants were not obligated to voluntarily sign over their interests.
As Defendants point out in their response to SSUMF No. 24, Lender was entitled to all rights and remedies of a secured party after default under the UCC and other applicable law.
Lender filed this action and sought a declaratory order declaring its ownership of the collateral, which it was entitled to do under Section 5.
Defendants acknowledge that Lenders action for declaratory relief is a proper exercise of its rights to file an action for judicial foreclosure.
(Defendants SSUMF No. 24.)
As discussed above, there are no triable issues of fact remaining as to the issue of breach.
The undisputed facts establish that (1) Defendants are in default under the Note and the personal guarantees and (2) Lender has exercised its rights under the law to ownership of the collateral based on Defendants default per section 5 of the Pledge Agreement.
As such, based on the undisputed facts, Lender is entitled to an order declaring it the owner of the collateral pledge under the Pledge Agreement, a total 15% interest in Equity Ownership LLC.
Conclusion
Plaintiffs Motion for Summary Judgment is granted.
Based on the undisputed facts, (1) Defendants defaulted on their obligations under the Note and the personal guarantees; and (2) there is currently an outstanding balance of $4,883,666.77.
Based on the undisputed facts, Plaintiff is also the owner of the collateral pledged as security for the personal guarantees executed by Defendants Kravetz and Jacobsena 15% membership interest in Equity Orchestration LLC.
No triable issues of fact remain as to any of the causes of action alleged in the complaint.
Ruling
LEI CUI VS HICKSLANDER LLC, ET AL.
Jul 11, 2024 |
23STCV13260
Case Number:
23STCV13260
Hearing Date:
July 11, 2024
Dept:
47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE:
July 11, 2024
TRIAL DATE:
NOT SET
CASE:
Le Cui v. HicksLander LLC, et al.
CASE NO.:
23STCV13260
MOTION TO TRANSFER VENUE
MOVING PARTY
: Defendant Michael Perry.
RESPONDING PARTY(S)
: Plaintiff Lei Cui
CASE HISTORY
:
·
06/09/23: Complaint filed.
·
05/06/24: First Amended Complaint filed.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an action for breach of contract concerning Defendants failure to repay and guarantee a loan agreement codified in two promissory notes dated March 5, 2020 and June 7, 2020.
Defendant Michael Perry moves to transfer this action to the Superior Court of California, County of San Bernardino.
TENTATIVE RULING:
Defendant Michael Perrys Motion to Transfer Venue to the Superior Court of California, County of San Bernardino is GRANTED.
DISCUSSION:
Defendant Michael Perry moves to transfer this action to the Superior Court of California, County of San Bernardino on the basis that venue is not proper in the County of Los Angeles.
//
Legal Standard for Mandatory Transfer of Venue
Code of Civil Procedure section 396b(a) provides:
(a)¿Except as otherwise provided in Section 396a, if an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof,
other than the court designated as the proper court for the trial thereof, under this title
, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of those papers. Upon the hearing of the motion the court
shall, if it appears that the action or proceeding was not commenced in the proper court, order the action or proceeding transferred to the proper court
.
(Code Civ. Proc. § 396b(a), bold emphasis and underlining added.) Thus, transfer is mandatory under section 396b(a) if the action was not filed in the proper court. On determining the proper court in which to file an action, Code of Civil Procedure section 395(a) provides:
(a)
¿Except as otherwise provided by law
and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county
where the defendants or some of them reside at the commencement of the action
is the proper court for the trial of the action. If the action is for injury to person or personal property or for death from wrongful act or negligence, the
superior court in either the county where the injury occurs
or the injury causing death occurs or the county where the defendants, or some of them reside at the commencement of the action, is a proper court for the trial of the action. . . . Subject to subdivision (b), if a defendant has contracted to perform an obligation in a particular county, the superior court in the county where the obligation is to be performed, where the contract in fact was entered into, or where the defendant or any defendant resides at the commencement of the action is a proper court for the trial of an action founded on that obligation, and the county where the obligation is incurred is the county where it is to be performed, unless there is a special contract in writing to the contrary. . . .
(Code Civ. Proc. § 395(a) (bold emphasis added).) An action against a corporate defendant may be brought where its principal place of business is located. (Code Civ. Proc. § 395.5.) The burden is on the moving party to establish that the plaintiffs venue selection is not proper under any statutory grounds. (
Fontaine v. Superior Court. (Cashcall, Inc.)
(2009) 175 Cal.App.4
th
, 830, 836.)
Whether Venue is Proper in Los Angeles
Defendant Perry contends that venue is not proper in the County of Los Angeles. The First Amended Complaint alleges that Defendants Perry and Mao are residents of San Bernardino County (FAC ¶¶ 3-4), that Defendant Chao is a resident of Orange County (¶ 5), and that Defendant HicksLanders, LLC has its principal place of business located in Chino, CA, which is in San Bernardino County. (¶ 2.) The First Amended Complaint alleges that venue is proper in the County of Los Angeles because the contracts at issue in the pleadings were entered into and were to be performed in Los Angeles. (FAC ¶ 10.) However, Defendant contends that the claims in the First Amended Complaint are transitory, with particular reference to Plaintiffs second cause of action for fraud and third cause of action for negligent misrepresentation. Defendant relies on
Nelson v. Crocker National Bank
, a 1975 appellate opinion that addressed,
inter alia
, the nature of an action to cancel a promissory note and deed of trust for fraud for purposes of venue. Citing Code of Civil Procedure section 395, the Court of Appeal reasoned that an action to cancel or reform a promissory note secured by a deed of trust is a transitory action and must follow the person of the defendant. (
Nelson v. Crocker National Bank
(1975) 51 Cal.App.3d 536, 541.) Thus, Defendant argues that venue on the claims asserted in the second cause of action for fraud, third cause of action for negligent misrepresentation, and fifth cause of action for recission for fraudulent inducement must follow the Defendants to San Bernardino County or to Orange County.
Plaintiff does not address this argument in opposition, instead contending that the motion was not timely brought because Defendant Perry failed to timely respond to the original Complaint. Plaintiffs sole authority for this proposition is
Story v. Christin
, a 1934 appellate opinion relying on statutes which have since been repealed and replaced. (See generally
Story v. Christin
(1934) 137 Cal.App. 484.) Moreover, even if that opinion remained good law, the Court of Appeal expressly stated that the then-operative statute required a motion to transfer to be brought at the time the defendant appears and answers or demurs. (
Story v. Christin, supra,
137 Cal.App. at 486.) As Defendant Perry was defaulted on September 5, 2023, he did not appear as a matter of law before the First Amended Complaint was filed on May 6, 2024. As this motion was filed and served on June 3, 2024, less than 30 days later, the motion was made within the time to respond to the amended complaint. (See Code Civ. Proc. § 471.5(a).)
Because Plaintiff does not contest Defendants argument that Plaintiffs claims sounding in fraud are transitory and follow the person of the Defendants, the Court finds Defendant has demonstrated that venue is not proper in Los Angeles as to those claims. Under well-settled precedent, when a defendant is entitled to a change of venue as to one cause of action, that Defendant is entitled to transfer of the entire action. (
Ah Fong v. Sternes
(1889) 79 Cal. 30, 33;
Jhirmack Enterprises, Inc. v. Superior Court
(1979) 96 Cal.App.3d 715, 720-21;
Johnson v. Superior Court
(1965) 232 Cal.App.3d 212, 217.)
Defendant Perry has demonstrated that Los Angeles County is not the proper venue for this action as a matter of law, and that he is entitled to transfer of the entire action. Because the First Amended Complaint establishes by its allegations that venue is proper in either the County of Orange or the County of San Bernardino, Defendants request to transfer the action to the County of San Bernardino must be granted.
CONCLUSION
:
Accordingly, Defendant Michael Perrys Motion to Transfer Venue to the Superior Court of California, County of San Bernardino is GRANTED.
Moving
Party
to give notice.
IT IS SO ORDERED.
Dated: July 11, 2024 ___________________________________
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at
Smcdept47@lacourt.org
by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
Ruling
IRTH COMMUNICATIONS, LLC, A NEVADA LIMITED LIABILITY COMPANY VS BIOTRICITY, INC., A NEVADA CORPORATION
Jul 12, 2024 |
23STCV28057
Case Number:
23STCV28057
Hearing Date:
July 12, 2024
Dept:
50
Superior Court of California
County of Los Angeles
Department 50
IRTH COMMUNICATIONS, LLC
,
Plaintiff,
vs.
BIOTRICITY, INC.
,
et al.
,
Defendants.
Case No.:
23STCV28057
Hearing Date:
July 12, 2024
Hearing Time:
10:00 a.m.
[TENTATIVE] ORDER RE:
PLAINTIFFS REQUESTS FOR DEFAULT JUDGMENT
Plaintiff Irth Communications, LLC (Plaintiff) requests entry of default judgment against Defendant Biotricity, Inc. Plaintiff seeks judgment in the total amount of $109,293.45, comprising $97,431.23 in damages, $9,177.22 in interest, $2,100.00 in attorneys fees, and $585.00 in costs.
The Court notes that Plaintiff has corrected the defects identified in the Courts May 17, 2024 Order on Plaintiffs prior request for default judgment.
However, the Court notes that the Declaration of Andrew William Haag in support of the request indicates,
inter alia
, that [t]he interest rate calculation is based on the rate of 1.5% per month
(or 18% per year)
. (Haag Decl., ¶ 33, emphasis added.)
Pursuant to LA¿SC rule 3.206¿, [i]f interest is requested in excess of the usury limitations of ¿California Constitution Article XV, Section 1¿, proof must be presented of plaintiffs exemption from the usury limitations unless an exemption has been pleaded in the complaint and admitted by the entry of default. The Complaint does not appear to plead any exemption from the usury limitations and Plaintiff has not provided an explanation for its entitlement to any exemption.¿¿
In addition, Plaintiff seeks interest for the period of November 13, 2023 to May 21, 2024. (Haag Decl., ¶ 33.) Plaintiff states that there are 191 days between these dates. (
Ibid
.) However, it appears that there are 190 days between November 13, 2023 and May 21, 2024.
Based on the foregoing, the Court denies Plaintiffs request for default judgment without prejudice. The Court will discuss with Plaintiff a schedule for resubmission of the default judgment package.
DATED:
July 12, 2024
________________________________
Hon. Teresa A. Beaudet
Judge, Los Angeles Superior Court
Ruling
LESLIE A. SMITH, TRUSTEE OF THE LESLIE A. SMITH TRUST DATED JULY 11, 2002 VS ANCHOR SEAPORT ESCROW
Jul 16, 2024 |
23LBCV02516
Case Number:
23LBCV02516
Hearing Date:
July 16, 2024
Dept:
S27
1.
Background Facts
Plaintiff, Leslie A. Smith, Trustee of the Leslie A. Smith Trust Dated July 11, 2022 filed this action against Defendant, Anchor Seaport Escrow on 12/29/23.
Plaintiffs complaint contains causes of action for breach of contract, breach of fiduciary duty, and negligence.
2.
Demurrer
On 5/15/24, Defendant filed a demurrer to the negligence cause of action.
Defendants demurrer is accompanied by a meet and confer declaration establishing Defense Counsel attempted to email and call Plaintiffs attorney, but received no response.
On 7/03/24, Plaintiff filed a response to the demurrer, wherein she indicates negligence is listed in the caption of the complaint, but there is no negligence cause of action pled in the body of the complaint, and she does not intend to pursue a claim for negligence.
She indicates she does not object to a ruling striking the reference to negligence in the caption of her complaint.
This proceeding demonstrates the importance of participating in meet and confer conversations.
The reference to negligence is stricken without leave to amend.
Plaintiffs attorney is admonished to fully participate in all meet and confer conversations in the future in connection with this and other actions to avoid unnecessary consumption of judicial and attorney resources.
Defendant is ordered to file an answer to the complaint, with the reference to negligence deemed stricken, within ten days.
3.
Notice
Plaintiffs opposition to the demurrer indicates the hearing date is 6/16/24.
It is 7/16/24.
Additionally, on 6/04/24, Plaintiff was ordered to give notice that the Court set a CMC and OSC for 7/16/24.
Plaintiff did not serve the notice until a month later, on 7/03/24, and noticed the CMC and OSC for 6/16/24, not 7/16/24.
The Court admonishes Plaintiffs attorney to give notice promptly in the future in connection with this and other actions, and also admonishes Plaintiffs attorney to ensure dates are correct on all notices.
4.
CMC and OSC
The parties are reminded that there is a CMC and OSC on calendar concurrently with the hearing on the demurrer.
The Court asks Counsel to make arrangements to appear remotely at the CMC, OSC, and hearing on the demurrer.
Ruling
EVAN KROW VS. ACCESS MARIN, INC. ET AL
Jul 10, 2024 |
CGC23604737
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 6. DEFENDANT ROBERT ELAM's Motion For Relief From Default. Continued to July 26, 2024, to be heard by Judge East. =(302/RBU)
Document
State Farm Indemnity Company v. Teudy Leonardo Perez Matos, Sair Harvey Chara Garcia, Jason Pereyra, 7945 Chiropractic P.C., Akiva Ortho Supply Llc, Goal Physical Therapy P.C., Hn Dme Ortho Supply, Inc., Jisu Physical Therapy P.C., Jordon Fersel M.D.P.C., Prompt Medical Group Inc., Van Loon Dme Usa Inc
Feb 05, 2019 |
Lisa A. Cairo |
Other Matters - Contract - Other |
Other Matters - Contract - Other |
611426/2023