Preview
FILED: NEW YORK COUNTY CLERK 10/26/2023 10:48 AM INDEX NO. 452564/2022
NYSCEF DOC. NO. 1599 RECEIVED NYSCEF: 10/26/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
PEOPLE OF THE STATE OF NEW Index No. 452564/2022
YORK, by LETITIA JAMES, Attorney
General of the State of New York, Mot. Seq. 034
Hon. Arthur Engoron
Plaintiff,
-against-
Donald J. Trump, et al.,
Defendants.
PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO
IVANKA TRUMP’S MOTION TO QUASH
LETITIA JAMES
Attorney General of the State of New York
28 Liberty Street
New York, NY 10005
Andrew Amer
Colleen K. Faherty
Alex Finkelstein
Sherief Gaber
Wil Handley
Eric R. Haren
Mark Ladov
Louis M. Solomon
Stephanie Torre
Kevin C. Wallace
Of Counsel
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PRELIMINARY STATEMENT
The Office of the New York State Attorney General (“OAG”) submits this memorandum
of law in opposition to Ivanka Trump’s Motion to Quash Subpoenas Ad Testificandum issued by
OAG to compel her testimony at trial in this action.
Ms. Trump was served properly at the New York addresses and actual place of business
of multiple entities that are under her control; she should be compelled to testify in this
proceeding. While no longer a Defendant in this action, she indisputably has personal knowledge
of facts relevant to the claims against the remaining individual and entity Defendants. 1 But even
beyond that, Ms. Trump remains financially and professionally intertwined with the Trump
Organization and other Defendants and can be called as a person still under their control. Finally,
Ms. Trump has been and remains a litigant in the OAG’s concurrent, still active, special
proceeding, and appeared in and litigated this action without contesting personal jurisdiction.
These are sufficient, ample bases to compel Ms. Trump’s testimony.
ARGUMENT
1. Ivanka Trump was Properly Served with Subpoenas
A subpoena “shall be served in the same manner as a summons” under CPLR 2303. OAG has
served subpoenas on Ms. Trump through several available means to ensure that she had adequate
notice of the Subpoenas and to ensure that this Court could exercise its jurisdiction over Ms.
Trump appropriately. New York courts “have not been hesitant in extending the reach of a
subpoena to persons outside the State if they have a presence in the State and service is effected
1
Although the Appellate Division dismissed claims against Ms. Trump on statute of limitations
grounds, this Court has repeatedly noted that the statute of limitations applies against claims and
not evidence, and therefore has no bearing on the enforcement of this trial subpoena.
2
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in the State.” Coutts Bank Ltd. v. Anatian, 275 A.D.2d 609, 611 (1st Dep’t 2000) (noting that the
Judiciary Law “is concerned not with where the witness is located, but, rather, where service is
made”). See also Roach v. Tozzo, 2004 WL 6010961 (Sup. Ct. Queens Cty. 2004) (defendant still
“found in the state” where they still owned property out of which their former business had
operated)
As an initial matter, Ms. Trump tries to draw a distinction between whether the subpoena had
been served on her individually or as an officer of the entities addressed beneath her name in the
subpoena. All roads here lead to Rome; regardless of how the subpoenas are parsed, 2 sufficient
service was effected to compel Ms. Trump’s testimony, whether individually or as an officer or
agent of the corporate entities. The factual knowledge in her possession and its relevance to this
action does not change whether she is appearing, for example, as officer of Ivanka OPO, LLC or
as Ivanka Trump who negotiated the OPO loan and other transactions at issue in this case.
First, service may be effected in the State on a natural person by personal delivery to the
individual at their “actual place of business,” defined broadly as “any location that the [subpoena
recipient], through regular solicitation or advertisement, has held out as its place of business.”
CPLR 308(6). In Xiao Hong Wang v Chi Kei Li, 169 A.D.3d 593 (1st Dept 2019), the First
Department held that service was appropriately effectuated at an address where business tax bills
See Deutsche Bank AG v Vik, 2015 N.Y. Misc. LEXIS 291 *34 (Sup. Ct. N.Y. Cty., 2015) (“Where one defendant is
2
subject to personal jurisdiction and service of process, its alter egos are subject to personal jurisdiction and may be
served by serving it”) (quoting Glory Wealth Shipping Pte Ltd v Industrial Carriers, Inc., 590 F. Supp. 2d 562, 564
(S.D.N.Y. 2008)). Indeed, Ms. Trump herself cites Stanley Agency v. Behind the Bench (National Basketball Wives
Association), 23 Misc. 3d 1107(A) (Sup. Ct. Kings Cty. 2009), which stated that “the Appellate Division, Second
Department has held that service of a single summons on an officer of a corporation, who is also an individual
defendant, constitutes proper service on both the corporation and the individual defendant” (emphasis added)
Ms. Trump breaks up this quote to suggest it only applies to a defendant, but that language merely reflects the
context there of service of a summons. Where a subpoena is to be served the same way on a third party, there is no
question that the manner of service is applicable.
3
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were mailed to an individual, noting that, given service at such an address, the individual “may
not now reasonably claim that he was not properly served.” Id. at 593. Similarly, in Gibson Dunn
& Crutcher LLP v. Global Nuclear Services and Supply, Ltd., 280 A.D.2d 360, 361 (1st Dep’t
2001), the First Department held that an individual who had “effectively held out” an address as
his place of business could be served at that address. In particular, in the course of that ruling, the
First Department noted, among other facts, that the individual was “executive vice president and
a significant shareholder of at least one company operating at that location.” Id. See also, e.g.,
Day v. Davis, 47 A.D.3d 750 (2d Dep’t 2008) (attorney who held out location as address could be
served at that address).
These standards are easily satisfied here. Ms. Trump has been properly served personally at
her actual place of business, namely the address of Trump Tower, 725 5th Avenue, New York,
NY, consistently used by Ms. Trump for transacting business through three separate entities that
are under Ms. Trump’s partial or total control, TTT Consulting LLC, Ivanka OPO LLC and 502
Park Project LLC. OAG attempted personal delivery to Ms. Trump at that address and, following
rejection of service, OAG undertook substituted service by mailing the subpoena and emailing a
copy to Ms. Trump’s New York counsel of record.
Second, service upon the three entities is sufficient to require those entities to produce Ms.
Trump for testimony at trial. Standard Fruit & S. S. Co. v. Waterfront Commission, 43 N.Y.2d 11
(1977), establishes that entities doing business in New York may be required to produce their
out-of-state personnel in judicial proceedings in this State. As the Court of Appeals explained,
“[w]e hold that a corporation doing business in New York may be subpoenaed to testify as a
witness about a corporate transaction through its officers and employees who have knowledge of
the transaction.” Id. at 9. “It is no excuse that the officers and employees who participated in the
4
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corporate transaction involved are not within the jurisdiction or that they refuse to appear or
testify in New York.” Id.
Here, Ms. Trump, as an officer or owner of the entities named in the subpoenas, TTT
Consulting LLC and 502 Park Project, LLC, can be compelled to appear in for testimony in New
York, where those entities are found. For example, the entity Ivanka OPO LLC was the vehicle
through which Ms. Trump exercised her ownership interest in the Old Post Office property. As
set forth in its Operating Agreement, the “Principal Office” of Ivanka OPO LLC are the offices
of the Trump Organization on Fifth Avenue in Manhattan, where the subpoena was ultimately
served. See Gaber Aff, ¶9, Exhibit 3 3
Through Ivanka OPO, LLC, Ms. Trump undertook a host of commercial activities relevant to
this case, guaranteeing, in connection with her ownership interest, a portion of Trump Old Post
Office LLC’s loan from Deutsche Bank. Gaber Aff, Exh. 2 When the Trump Organization finally
sold the OPO property in May of 2022, Eric Trump sent a congratulatory “all hands” email “[o]n
behalf of my father, Ivanka, Don and our entire family.” Gaber Aff., Exh. 17. Ms. Trump and
3
Ms. Trump has averred that Ivanka OPO, LLC is a Delaware LLC without authorization to do
business in New York. The entity’s failure to obtain proper authorization is not a defense to being
found in New York, merely an admission of its transacting business without required
authorization.
5
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Ivanka OPO LLC remained involved in the transaction, which as of the date of this proceeding
had certain financial terms outstanding.
There cannot be dispute that Ms. Trump, individually, through corporate entities she owns,
controls or holds an interest in, or through her ongoing relationship with the Trump Organization
is clearly doing business in New York and should be amenable to testify before its courts,
regardless of her domicile. Standard Fruit & S. S. Co., 43 NY2d at 15 (1977)(“a corporation
doing business in New York may be subpoenaed to testify as a witness about a corporate
transaction through its officers and employees who have knowledge of the transaction”) In re
Grand Jury Subpoenas, 70 NY2d 700 (1987)(corporate officers “doing business” in New York
were within the state for jurisdictional purposes) See, also, e.g., Wallace v. Bacon, 143 A.D. 211,
215 (1st Dept 1911) (“the isolated fact that the party sought to be examined is a nonresident of
this state, and that fact does not prevent a party to the action from examining such nonresident
before trial if he can be found within this state and served with the order requiring his
examination.”)
2. This Court has Personal Jurisdiction over Ivanka Trump
First, the plain fact of the matter is that service on Ms. Trump personally, at the actual place
of business she has used with multiple corporate alter egos, as described above is sufficient under
CPLR 308(2) to establish personal jurisdiction over a natural person. The cases cited by Ms.
Trump are all inapposite: Amelius v. Grand Imperial LLC, 64 N.Y.S.3d 855, 865–66 (Sup. Ct.
N.Y. Cty. 2017) dealt with the issue of general jurisdiction over an out of state corporate
defendant and whether New York’s long-arm statute could be used to obtain general jurisdiction
over and subpoena a foreign corporation. In re Three Arrows Cap. Ltd., 649 B.R. 143 (Bankr.
S.D.N.Y. 2023) is a bankruptcy case interpreting federal civil procedure on service of foreign
6
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parties that ultimately did not reach a decision on personal jurisdiction. Genger v Genger, 50
Misc 3d 361 (Sup. Ct. N.Y. Cty. 2015) deals with a privilege from further suit of nondomiciliary
witnesses travelling to New York to give testimony. 4
Second, having served the subpoenas “within the state” as described above, there is no need
to consider long-arm jurisdiction. To the extent general or specific jurisdiction over Ms. Trump
or any of her corporate entities is concerned, there is an ample record showing that Ms. Trump’s
corporate entities are all at home in New York and subject to this court’s general jurisdiction. In
the case of Ivanka OPO, LLC, that entity would be subject to general jurisdiction by virtue of the
fact that its operating agreement and nearly all available transaction documents show it to be “at
home” in New York City, notwithstanding its lack of legal authority to do business in the state.
Aybar v. Aybar 37 N.Y.3d 274 (2021). TTT Consulting LLC likewise appears to have its principal
place of business in New York, and 502 Park Project LLC is a New York entity.
Third, even if the Court should not want to reach the issue of general jurisdiction, Ms. Trump
and the other entities through which she has been subpoenaed have extensive contacts with the
State, concerning the facts at issue, more than sufficient to justify specific jurisdiction and her
being called to testify.
4
The final paragraph in Coutts Bank 275 AD2d at 613 is an instructive analogy here: “Finally,
we note that the judgment-debtor's arguments in support of the proposition that long-arm
jurisdiction does not apply to the service of a subpoena ignore the fact that jurisdiction is here
asserted on the basis of service of the subpoena "in the state" through his attorneys. The record
also discloses that, at the time of such service, the judgment-debtor owned a home in the State,
appeared in the United States Bankruptcy Court for the Southern District of New York to
prosecute personal claims against one of his former companies and was designated manager of
seven LLCs, all of which were listed as "active" in New York. All of these factors are relevant to
a designation for substituted service under CPLR 308 (5).)”
7
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Fourth, the fact that Ms. Trump has submitted to this Court’s jurisdiction supports the
Court’s compulsion of her testimony at trial. Judiciary Law § 2-b(1) authorizes a trial subpoena’s
issuance to anyone who is “found in the State,” and additionally authorizes the Court to issue any
order “necessary to carry into effect the powers and jurisdiction possessed by it.” Ms. Trump, in
the ongoing special proceeding (No. 451685/2020), remains subject to this Court’s jurisdiction.
Furthermore, when she was a party to this action, Ms. Trump did not contest personal jurisdiction
despite ample litigation and opportunity to do so. Therefore, that defense should be deemed
waived, as notwithstanding her dismissal as a party and recall as a witness, the facts surrounding
this court’s jurisdiction over her in this action have not changed. Gaber Aff., ¶5
Accordingly, this Court may exercise jurisdiction over her and compel her testimony
here. The First Department’s decision in Coutts Bank (Switzerland) Ltd. v. Anatian, 275 A.D.2d
609 (1st Dep’t 2000), is instructive. There, the court found an individual judgment debtor was
subject to subpoena under Judiciary Law § 2-b(1) by virtue of their litigation of “a related federal
action” in this State. Id. at 609; see also id. at 609 (Sullivan, P.J., concurring). Here, Ms. Trump
is similarly situated to the judgment debtor in Anatian: not only does she remain a party to
related litigation, but she voluntarily initiated a substantial portion of that litigation to challenge
the Attorney General’s investigative subpoena issued to her. The proceeding in which her
challenge was rejected remains ongoing, so Ms. Trump remains subject to the jurisdiction of the
Court and her testimony may be compelled here.
Finally, Ms. Trump remains under the control of the Trump Organization, including
through her ongoing and substantial business ties to the organization. Ms. Trump reappointed
herself to a participating member of several Trump Organization entities following her departure
from government. Gaber Aff., ¶¶17, 18, Exh. 4. Moreover she does not seem to be averse to her
8
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involvement in the family business when it comes to owning and collecting proceeds from the
OPO sale, the Trump Organization purchasing insurance for her and her companies, managing
her household staff and credit card bills, renting her apartment or even paying her legal fees in
this action. 5 It is only when she is tasked with answering for that involvement that she disclaims
any connection. But her attempt now to distance herself from her family’s business carries no
legal weight.
3. Ms. Trump Cannot Designate Someone Else to Testify in Her Place
Ms. Trump conflates rules for noticing the deposition of a corporate entity by designating
an individual to testify on behalf of the corporation, 22 NYCRR § 202.20-d, with the rules
governing a trial subpoena seeking testimony from a corporate officer or agent with personal
knowledge of the relevant facts. Rule 202.20-d governs deposition testimony about “information
known or reasonably available to the entity” to be given during the pretrial phase, and is meant to
streamline discovery and information gathering from an entity. New York law is clear, however,
about the distinction between witness’ personal knowledge and hearsay information they learn
from corporate records. Matter of New York City Asbestos Litig., 27 N.Y.3d 765, 804 (2016)
(witness who only knew about transactions at issue from familiarizing himself with corporate
documents correctly precluded). See also Evans v. 3M Co., 2017 N.Y. Misc. LEXIS 1152, *6
(Sup. Ct. N.Y. Cty. 2017) (“Defendant cannot circumvent the requirement that a witness have
personal knowledge merely because that witness testifies for a corporation”)
5
See Gaber Aff ¶30
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The Corporation’s obligation under Standard Fruit (43 N.Y.2d at 11), similarly, is to
produce the required witness with personal knowledge, not a mere representative. Other
Defendants cannot testify as to Ms. Trump’s personal knowledge, and they are no substitute for
her appearance as a trial witness.
4. There is No Basis to Limit Ms. Trump’s Testimony at Trial.
Lastly, assuming Ms. Trump is required to appear, there is no basis to limit the substance of
her testimony. She was a key participant in many of the events at issue, as the Court is aware.
Moreover, the Court has broad discretion concerning the scope of any direct, cross, and re-direct
examination. See, e.g., Ingebretsen v. Manha, 218 A.D.2d 784, 784 (2d Dep’t 1995) (citing
Feldsberg v. Nitschke, 49 N.Y.2d 636 (1980)).
Ms. Trump cites only to a single case in support of her position, Mestel & Co. v. Smythe
Masterson & Judd, Inc., 215 A.D.2d 329, which involves a subpoena duces tecum not a
testimonial subpoena. The more apposite case is elsewhere in Ms. Trump’s brief, 23/23
Communs. Corp. v. GMC, 172 Misc. 2d 821, 824 (Sup Ct NY County 1997), which states “[t]he
traditional rule is that ‘[s]ince the court should not anticipate potential lines of questioning, the
power to issue a subpoena ad testificandum is absolute and unlimited. The court should not
impose a pretestimonial hearing on the ‘absolute and unlimited’ right of a party to issue a trial
subpoena.” (Internal citations and quotations omitted). See also Ocean-Clear, Inc. v Continental
Cas. Co., 94 A.D.2d 717, 719 (2d Dep’t 1983); Matter of Dwyer v Wilcox, 92 A.D.2d 646 (3d
Dep’t 1983); Matter of Hirshfeld v Craig, 239 N.Y. 98, 117 (1924).
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CONCLUSION
For the foregoing reasons, this court should deny Ms. Trump’s motion to quash the
testimonial subpoenas and direct her to appear and provide testimony at trial.
Dated: New York, New York
October 25, 2023
Respectfully submitted,
LETITIA JAMES
Attorney General of the State of New York
By: _________________________
Sherief Gaber
Andrew Amer
Colleen K. Faherty
Alex Finkelstein
Wil Handley
Eric R. Haren
Mark Ladov
Louis M. Solomon
Stephanie Torre
Kevin C. Wallace
Office of the New York State Attorney
General
28 Liberty Street
New York, NY 10005
Phone: (212) 416-6403
Sherief.gaber@ag.ny.gov
Attorney for the People of the State of New
York
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CERTIFICATION OF COMPLIANCE
WITH UNIFORM CIVIL RULE 202.8-b
I certify that the foregoing document, excluding the caption, table of contents, table of
authorities, and signature block, contains 2765 words. I further certify that I relied on the word
count of the word-processing system used to prepare the document.
____________________________________
SHERIEF GABER
12
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ProCare is
ordered to appear for deposition and produce documents within 30 days of this ruling.
Plaintiff-Relators Allstate Insurance Companys (Allstate) (Plaintiff) moves to
compel the deposition of Non-party ProCare Funding LLC (ProCare) to appear for deposition to produce business records issued on November 29, 2023.
(Notice of Motion, pg. 2
; C.C.P. §2025.480(a).)
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(Notice of Motion, pg. 2.)
Meet and Confer
A motion to compel a deposition must be accompanied by a declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.
(C.C.P. §§
2016.040
,
2025.480
(b).)
Plaintiffs counsel declares that on March 19, 2024, she sent Defendants counsel Reed a detailed meet and confer letter explaining the deficiencies in ProCares purported objections to the subpoena.
(Decl. of Stassi ¶6, Exh. D.)
Plaintiffs counsels declaration substantially complies with the requirements of C.C.P. §2016.040.
Background
On December 1, 2023, Plaintiff served a notice for the deposition for production of business records to ProCare set for December 19, 2023.
(Decl. of
Stassi
¶3, Exh. A.)
On January 19, 2024, ProCares counsel set forth ProCares purported objections to the subpoena in a letter.
(Decl. of
Stassi
¶5, Exh. C.)
Plaintiff filed the instant motion on March 22, 2024.
ProCare filed its opposition on July 3, 2024.
Plaintiff filed its reply on July 8, 2024.
Discussion
Where a deponent fails to produce any document, the subpoenaing party may move the court for an order compelling the production of documents, upon a showing of good cause.
(C.C.P. §
2025.480
(a);
see also Thai v. Richmond City Ctr., L.P.
(2022) 86 Cal.App.5th 282, 289.)
Good cause may be established where the request is made in good faith and that the documents sought are relevant to the subject matter and material to the issues in the litigation.
(
Associated Brewers Distributing Co. v. Superior Court
(1967)
65 Cal.2d 583, 58
6-587.)
Documents are discoverable from third parties where they are reasonably likely to lead to the discoverable information or aid in evaluation of the claims. In the context of discovery, evidence is relevant if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement.
(
Moore v. Mercer
(2016) 4 Cal. App. 5th 424, 447.)
The broad scope of permissible discovery is equally applicable to discovery of information from a nonparty as it is to parties in the pending suit.
(
Johnson v. Superior Court
(2000) 80 Cal.App.4th 1050, 1062.)
At this stage, relevance is construed broadly and [a]dmissibility is not the test, information unless privileged, is discoverable if it might reasonably lead to admissible evidence.
(
Stewart v. Colonial W. Agency, Inc
. (2001) 87 Cal.App. 1006, 1013.)
Here, good cause exists to compel compliance with Plaintiffs deposition subpoena.
The only documents Plaintiff has requested from ProCare are related to the transactions that form the fraudulent scheme alleged in the operative pleading.
(SAC ¶¶75-92.)
Plaintiff has pursued party discovery, including written interrogatories and requests for production of documents served on New Hope, which has revealed that ProCares arrangement with New Hope is similar to the arrangement New Hope has with Healthcare Financial Solutions, LLC (HFS).
(Decl. of Stassi ¶8.)
Specifically, like HFS, ProCare agreed to (and did) purchase patient accounts from New Hope prior to any patient services (MRIs) having been rendered and paid New Hope up front for the accounts, as set forth in the Accounts Receivable Purchase Agreement Between ProCare Funding, LLC (Buyer) and Adam Avelardo Perez d/b/a New Hope Imaging Services (Seller) dated March 10, 2021 that Defendants produced in discovery.
(Decl. of Stassi ¶8.)
The agreement was subsequently amended in 2019, and Defendants produced the amendment and a bill of sale from 2021 relating to ProCares purchase of New Hope patient accounts.
New Hopes bank account records that Plaintiff subpoenaed from the banks show that ProCare paid New Hope at least $65,710.00 pursuant to this arrangement.
(Decl. of Stassi ¶8; Supp-Decl. of Stassi ¶4, Exh. G.)
Plaintiffs deposition subpoena does not seek documents that would disclose patient information, and to the extent that some patient information may be identified in responsive documents, HIPAA allows such disclosure under an appropriate protective order such as the one that exists in the instant matter.
ProCare claims it need not comply with the subpoena because it requires production of confidential and sensitive business information.
ProCare fails to meet its burden to demonstrate exactly what confidential and sensitive information it would be forced to produce and why the protective order does not provide sufficient protection for that material.
If an objection is based on a claim of privilege or a claim that the information sought is protected . . . the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log. (C.C.P. §2031.240(c)(1);
see also HLC Properties, Limited v. Superior Court
(2005) 35 Cal.4th 54, 59 [The objecting party has the burden to file evidence of the preliminary facts establishing a privilege exists.].)
Here, ProCare has not demonstrated that any such privilege or protection it claims in its objections applies.
ProCares objections do not describe any of these purportedly confidential and sensitive documents with particularity, nor has it produced any privilege log.
Further, any concern ProCare may have is outweighed by Plaintiffs need for the documents and the protections available under the existing protective order.
(
See
Supp.-Decl. of Stassi ¶3, Exh. F.)
ProCares objections that the subpoena is overly broad and oppressive are unavailing because it fails to make a showing of undue burden.
(C.C.P. §2020.220(e) [subpoenaed person bears the burden of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense];
Vasquez v. California School of Culinary Arts, Inc.
(2014) 230 Cal.App.4th 35, 42 [stating subpoenaed entity may only oppose production of electronically stored information on the basis that the information is from a source that is not reasonably accessible because of undue burden or expense].)
ProCares conclusory statements do not satisfy its burden to demonstrate undue burden and expense.
The Court grants Plaintiffs motion pursuant to C.C.P. §2025.480 and orders ProCare to
appear for deposition and produce documents and things within thirty (30) days of this Courts ruling
.
Accordingly, Plaintiffs motion is granted.
Conclusion
Plaintiffs motion to compel ProCares compliance with Plaintiffs deposition subpoena for production of business records is granted.
ProCare to appear for deposition and produce the requested documents with 30 days of this ruling.
Moving Party is to give notice of this ruling.
Dated:
July _____, 2024
Hon. Daniel M. Crowley
Judge of the Superior Court
Ruling
KATHRYN BURDGE vs AIRSTREAM, INC.
Jul 18, 2024 |
24CV00800
24CV00800
BURDGE v. AIRSTREAM INC.
AIRSTREAM’S MOTION TO STAY
The motion to stay is denied.
I. BACKGROUND
Kathryn Burdge’s (“Burdge’) amended complaint, filed on March 26, 2024, alleges a
violation of the Song-Beverly Consumer Warranty Act in relation to her purchase of a 2023
Airstream Atlas RV. She purchased the Airstream in Temecula, California and she resided in
Page 6 of 9
Santa Cruz County at the time of the purchase. Burdge asserts various deficiencies/defects with
the RV.
In connection with the purchase of the Airstream, Burdge signed a Limited Warranty
which stated, in part, the following: “LEGAL REMEDIES: EXCLUSIVE JURISDICTION FOR
DECIDING LEGAL DISPUTES RELATING TO THE ALLEGED BREACH OF EXPRESS
WARRANTY AND BREACH OF THE IMPLIED WARRANTIES ARISING BY
OPERATION OF LAW AS WELL AS THOSE RELATING TO REPRESENTATIONS OF
ANY NATURE RESTS IN THE COURTS WITHIN THE STATE OF MANUFACTURE,
WHICH IS OHIO.” (Ex. B to Dec. of March.)
This language is found on the second page of the Limited Warranty and is the second
paragraph before the signature line for the purchaser. The sales contract is 6 pages long and
signatures were required on each page and, on some pages, multiple signatures on each page.
II. MOTION
Airstream seeks to stay this action to allow Burdge to re-file the case in Ohio, the forum
selection state. Airstream bases its motion on the above-referenced forum selection clause
contained in the signed limited warranty. Airstream contends a motion to enforce a forum
selection clause is a motion to stay (or dismiss) the action to allow a plaintiff to file in the proper
court.
Airstream argues the forum selection provision is mandatory and reasonable. Further,
Airstream acknowledges Burdge cannot be compelled to waive her rights under Song-Beverly,
and thus, it will stipulate to have the Ohio courts apply Song-Beverly in this case. Airstream
contends a stay would allow for time to determine if the Ohio courts would apply Song-Beverly.
If they will not, then Burdge could bring the case back to Santa Cruz.
Burdge opposes the stay. She argues Airstream failed to provide evidence demonstrating
she freely and voluntarily agreed to the forum selection clause. Even though Burdge signed the
limited warranty “she had to sign the document even if she did not understand the importance of
the forum selection clause.” (Opp at pg. 3.) That is, Burdge was required to sign the
acknowledgment of document and that does not prove she waived her rights under Song-Beverly
freely and voluntarily.
Burdge asserts Airstream failed to provide evidence that the designated forum will not
diminish her rights afforded under California law. Specifically, she argues, even if the court finds
she freely and voluntarily agreed to the forum selection clause, Airstream cannot show that Ohio
law will not diminish her substantive rights. Burdge contends Airstream’s offer to stipulate to
have the Song-Beverly apply in Ohio is insufficient because the choice of law in the Limited
Page 7 of 9
Warranty states that Ohio law will govern procedural issues and how the express warranty is
construed and interpreted.
III. DISCUSSION
“Trial courts generally have the inherent power to stay proceedings in the interests of
justice and to promote judicial efficiency.” (Freiberg v. City of Mission Viejo (1995) 33
Cal.App.4th 1484, 1489; see also Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1376-79;
CCP § 128(a)(3) [“Every court shall have the power to do all of the following: To provide for the
orderly conduct of proceedings before it, or its officers.”].)
"The procedure for enforcing a forum selection clause is a motion to stay or dismiss for
forum non conveniens." (Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1294.)
“California law is ‘in accord with the modern trend which favors enforceability of such
[mandatory] forum selection clauses. [Citations.] No satisfying reason of public policy has been
suggested why enforcement should be denied a forum selection clause appearing in a contract
entered into freely and voluntarily by parties who have negotiated at arm's length. For the
foregoing reasons, we conclude that forum selection clauses are valid and may be given effect, in
the court's discretion and in the absence of a showing that enforcement of such a clause would be
unreasonable.’ [Citation.]” (Quanta Computer Inc. v. Japan Communications Inc. (2018) 21
Cal.App.5th 438, 444-445.)
“‘California courts will refuse to defer to the selected forum if to do so would
substantially diminish the rights of California residents in a way that violates our state's public
policy.’ [Citation.]” (Verdugo v. Alliantgroup, L.P. (2015) 237 Cal.App.4th 141, 147.) “The party
opposing enforcement of a forum selection clause ordinarily ‘bears the substantial burden of
proving why it should not be enforced.’ [Citations.] That burden, however, is reversed when the
claims at issue are based on unwaivable rights created by California statutes. In that situation,
the party seeking to enforce the forum selection clause bears the burden to show litigating
the claims in the contractually designated forum ‘will not diminish in any way the
substantive rights afforded … under California law.’ [Citations.]” (Id.) (Emphasis added.)
In this case, while she did sign the limited warranty, the court agrees with Burdge that the
warranty was not signed knowingly as to the forum selection clause and that application of the
clause would be unreasonable and/or unfair. The clause is buried in the second to the last
paragraph and is written in legalese such that a reasonable consumer could not be expected to
understand they were acquiescing to file a lawsuit in Ohio. The exclusive jurisdiction section
does not adequately inform the consumer that they would need to file suit in Ohio for warranty
issues, especially given that Burdge lives in California and purchased the Airstream in
Page 8 of 9
California. The court also notes the length of the sales contract and number of signatures
required as factors which balance in Burdge’s favor.
The court does not find Airstream has carried its burden in demonstrating that Burdge’s
substantive rights will not be diminished in any way if the case is brought in Ohio. Despite the
offer of Airstream’s counsel to stipulate to apply California law in Ohio, there is no guarantee
the Ohio courts will agree to this arrangement; that is, what is the effect of the stipulation in the
Ohio courts? Second, Airstream’s proposal would create two pending actions, which does not
promote judicial economy. Third, having California courts apply California law simply makes
more sense in terms of protecting Burdge’s rights under the Song-Beverly Act and for efficient
case management.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Page 9 of 9
Ruling
CLEMENTS, BOBBY vs ODAY, JEFF
Jul 19, 2024 |
CV-21-002417
CV-21-002417 – CLEMENTS, BOBBY vs ODAY, JEFF – Defendants’ Motion for Terminating and Monetary Sanctions and in the Alternative Evidentiary Sanctions – GRANTED, in part, Denied in part, unopposed.
The Court finds that Plaintiff’s failure to comply with the Court’s order of February 16, 2023, compelling Plaintiff’s responses to Defendant’s properly propounded discovery within fourteen (14) days, as well as Plaintiff’s failure to comply with the Court’s verbal admonishment in that regard at the Case Management Conference of October 30, 2023, constitutes a willful failure to comply with the Court’s orders that warrant the imposition of terminating sanctions against Plaintiff. (Code of Civil Procedure §§2023.010 and 2023.030; Department of Forestry & Fire Protection v. Howell (2017) 226 Cal.Rptr.3d 727, rehearing denied, review denied; Parker v. Wolters Kluwer United States, Inc. (2007), 149 Cal.App.4th 285; Miranda v. 21st Century Ins. Co. (2004), 117 Cal.App.4th 913; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 6050.
Monetary Sanctions of attorney’s fees and costs in the sum of $1560.00 are hereby awarded against Plaintiff payable to Defendant’s Counsel, Aleshia M. White within thirty (30) days of service of this order on Plaintiff.
Ruling
Verdin vs. Nissan North America, Inc.
Jul 16, 2024 |
23CV-0202892
VERDIN VS. NISSAN NORTH AMERICA, INC.
Case Number: 23CV-0202892
This matter is on calendar for review regarding status of mediation. No status report has been filed.
An appearance is necessary on today’s calendar.
Ruling
OREN BEN ELISHA, ET AL. VS CHRISTINA YING DONG, ET AL.
Jul 18, 2024 |
24STCV08602
Case Number:
24STCV08602
Hearing Date:
July 18, 2024
Dept:
72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE RULING
OREN BEN ELISHA, et al.,
Plaintiffs,
v.
CHRISTINA YING DONG, et al.,
Defendants.
Case No:
24STCV08602
Hearing Date:
July 18, 2024
Calendar Number:
5
Defendants Christina Ying Dong (Dong) and Sylmar Calvert LLC (Sylmar) (collectively, Defendants) move to expunge the notice of lis pendens currently recorded on the property located at 14401 Calvert Street, Van Nuys, California 91311 (the Property). Defendants additionally move for an award of attorneys fees.
The Court GRANTS Defendants motion and ORDERS the expungement of Plaintiffs lis pendens on the Property.
Background
This case relates to failed negotiations between Plaintiffs Oren Ben Elisha and Yosef Ben Elisha (Plaintiffs) and Defendant Dong to purchase real property located at 14401 Calvert Street, Van Nuys, California 91311 (the Property) through Defendant Sylmar.
On July 27, 2023, Dong entered into a purchase agreement to purchase the Property and opened escrow. (Dong Decl. ¶ 5.)
In August of 2023, Dong offered Plaintiffs an opportunity to invest in an entity that would take title to the Property. (Dong Decl. 6.) On August 9, 2023, Dong filed the Articles of Organization for Sylmar for this purpose. (Dong Decl. ¶ 7, Ex. A.) The parties were scheduled to close escrow by February 28, 2024. (Dong Decl. ¶ 8.)
Plaintiffs filed this action on April 5, 2024, raising claims for (1) resulting trust; (2) constructive trust; (3) specific performance; (4) quiet title; (5) accounting; (6) breach of contract; (7) breach of fiduciary duty; and (8) dissolution of partnership.
Request for Judicial Notice
The Court takes judicial notice of Exhibits 1 and 3 to Plaintiffs opposition as public records. The Court does not take notice of the truth of their contents.
Evidentiary Objections
The Court overrules Plaintiffs evidentiary objections.
Legal Standard
A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged. The notice may be recorded in the office of the recorder of each county in which all or part of the real property is situated. The notice shall contain the names of all parties to the action and a description of the property affected by the action. (Code Civ. Proc., § 405.20.)
Except in actions subject to Section 405.6, the claimant shall, prior to recordation of the notice, cause a copy of the notice to be mailed, by registered or certified mail, return receipt requested, to all known addresses of the parties to whom the real property claim is adverse and to all owners of record of the real property affected by the real property claim as shown by the latest county assessment roll. &. Immediately following recordation, a copy of the notice shall also be filed with the court in which the action is pending. Service shall also be made immediately and in the same manner upon each adverse party later joined in the action. (Code Civ. Proc., § 405.22.)
At any time after a notice of pendency of action has been recorded, any party. . . with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice. (Code Civ. Proc., §405.30.)
A lis pendens may be expunged either (1) if the pleadings do not contain a real property claim, or (2) if the court finds that the party claiming the lis pendens has not established by a preponderance of the evidence the probable validity of the real property claim. (Code Civ. Proc., §§ 405.31, 405.32.)
The party asserting the lis pendens has the burden of proof under Section 405.31 and Section 405.32.¿(Code Civ. Proc., § 405.30) The burden is to demonstrate that their pleadings contain a real property claim and that the probable validity of their real property claim can be established by a preponderance of the evidence. (Code Civ. Proc., §405.31; see also McKnight v. Superior Court (1985) 170 Cal. App. 3d 291, 298 [the burden is upon the recording party to demonstrate by a preponderance of the evidence that the action was commenced and prosecuted for a proper purpose and in good faith] .) Probable validity exists when it is more likely than not that the claimant will obtain a judgment on the claim. (Code Civ. Proc., § 405.3.)¿
Any time after a notice of pendency of action has been recorded the court may also upon motion by any person with an interest in the property, require the claimant to give the moving party an undertaking as a condition of maintain the notice in the record title. (Code Civ. Proc., § 405.34)
Discussion
Procedural Defects
Any notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner and a proof of service in the form and content specified in Section 1013a has been recorded with the notice of pendency of action. (Code Civ. Proc., § 405.23.)
Defendants contend that the lis pendens is subject to expungement under Code of Civil Procedure, section 405.23 because Plaintiffs did not immediately serve the notice on Defendants or file it with the Court. (Dong Decl., ¶¶ 20-21.)
On July 9, following Defendants filing of this motion, Plaintiffs filed a notice of lis pendens with this Court and served the notice on Plaintiffs counsel.
The notice requirement is intended to assure that property owners receive prompt notice of the recording of a lis pendens. (
Biddle v. Superior Court
(1985) 170 Cal.App.3d 135, 137.) However, where a plaintiff substantially complies with the notice statute and promptly conveys actual notice to the affected party, the purpose of the statute is satisfied. (
Ibid
.) In
Biddle
, the plaintiff filed a notice of lis pendens and mailed a copy to the defendant simultaneously, sent it to the wrong location and did not request a return receipt as required. (
Id
. at pp. 136-137.) The court found that the plaintiff had substantially complied with the notice statute. (
Id
. at p. 137.)
Here, the delay was longer. Plaintiffs served the notice roughly three months after filing it. However, Defendants had actual notice, and the method of Plaintiffs eventual service was otherwise proper. The Court therefore finds that Plaintiffs substantially complied with the notice statute.
Substantive Defects
A lis pendens may be expunged either (1) if the pleadings do not contain a real property claim, or (2) if the court finds that the party claiming the lis pendens has not established by a preponderance of the evidence the probable validity of the real property claim. (Code Civ. Proc., §§ 405.31, 405.32.)
Defendants contend that Plaintiffs claims for breach of contract, breach of fiduciary duty, accounting, and dissolution of partnership are not real property claims. Plaintiffs do not contest this. Plaintiffs rather contend that their claims for resulting trust, constructive trust, specific performance, and quiet title are real property claims that satisfy the test of probable validity.
The Court first notes that Plaintiffs Complaint is exceedingly short, with the factual allegations comprising slightly over one page. The factual allegations themselves only contain general statements that the parties had worked together on real estate opportunities as partners in the past, and that Dong owed Plaintiffs fiduciary duties as a result; that Dong and Plaintiffs agreed to form a partnership to purchase the Property; that Plaintiffs were involved in the negotiation and diligence process; and that Dong then purchased the Property herself under Sylmars name. The Complaint alleges that this purchase breached the parties agreement, as well as Dongs alleged fiduciary duties to Plaintiffs. The Complaint does not expand on the terms of the parties agreement, what performance was obligated of each party, or whether it was oral or in writing. Further, the Complaint does not contain any allegations specific to each of the eight causes of action. Nor have Plaintiffs amended the Complaint in the three months since it was filed to fill out these allegations.
Plaintiffs attempt to expand on the allegations of the Complaint in their opposition brief, stating that the reason the Complaint is so threadbare is because Plaintiffs were in a rush to file the lis pendens and thereby prevent Defendants from selling the Property. (Opposition at p. 12:10-12.) While that may be so, Plaintiffs are certainly not still in a rush three months later.
Specific Performance
To state a cause of action for breach of contract, a plaintiff must be able to establish (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendants breach, and (4) the resulting damages to the plaintiff. (
Oasis West Realty, LLC v. Goldman
(2011) 51 Cal.4th 811, 821.)
If a breach of contract claim is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference. (
Harris v. Rudin, Richman & Appel
(1999) 74 Cal.App.4th 299, 307.) In some circumstances, a plaintiff may also plead the legal effect of the contract rather than its precise language. (
Construction Protective Services, Inc. v. TIG Specialty Ins. Co.
(2002) 29 Cal.4th 189, 198-199.)
To obtain specific performance after a breach of contract, a plaintiff must generally show: (1) the inadequacy of his legal remedy; (2) an underlying contract that is both reasonable and supported by adequate consideration; (3) the existence of a mutuality of remedies; (4) contractual terms which are sufficiently definite to enable the court to know what it is to enforce; and (5) a substantial similarity of the requested performance to that promised in the contract. (
Real Estate Analytics, LLC v. Vallas
(2008) 160 Cal.App.4th 463, 472 [citation and quotation marks omitted].)
Defendants argue that Plaintiffs cannot satisfy the statute of frauds with respect to the alleged contract.
A contract coming within the statute of frauds is invalid unless it is memorialized by a writing subscribed by the party to be charged or by the party's agent. (
Secrest v. Security National Mortgage Loan Trust 2002-2
(2008) 167 Cal.App.4th 544, 552, citing Civ. Code, § 1624.) An agreement for the sale of real property or an interest in real property comes within the statute of frauds. (
Ibid
, citing Civ. Code, § 1624, subd. (a)(3).)
Although the parties dispute whether the alleged agreement was for the purchase of land, the Court assumes for the sake of the statute of frauds analysis that it is because the alternative would render Plaintiffs contract claims inappropriate for a lis pendens in any event.
Here, Plaintiffs have not provided evidence of a writing memorializing the contract. Plaintiffs contend that a series of text messages sent between Dong and Yosef Ben Elisha memorialize the contract. Yosef Ben Elisha declares that the text messages state as follows:
Dong:
Hi Yossi, hope all is well. I made an appointment with Armin today to go to his office at 2pm. Thank you for introducing him and his firm. If you are still interested in the project. You are welcome to join me.
Plaintiff Yosef Ben Elisha:
Good morning Christina,
I can follow up with you around 12pm to try to show up. I do have meeting that I will need to schedule to make it happen. I will let you know around 12pm.
Dong:
Thanks so much Yossi. Sorry for the late notice. Just decided to meet with him for final DD before closing :)
Plaintiff Yosef Ben Elisha:
Yes
I will be there 2pm
(Decl. Yosef Ben Elish ¶ 29 [emphasis in original].)
There are two problems with Plaintiffs argument. First, these text messages hardly set forth the key terms of an agreement to purchase the Property. Second, [a]n electronic message of an ephemeral nature that is not designed to be retained or to create a permanent record, including, but not limited to,
a text message
or instant message format communication, is insufficient under this title to constitute a contract to convey real property, in the absence of a written confirmation& (Civ. Code, § 1624, subd. (d) [emphasis added].) The Court therefore concludes that the text messages that Plaintiff provides do not satisfy the statute of frauds.
[F]ull performance takes a contract out of the statute of frauds has been limited to the situation where performance consisted of conveying property, rendering personal services, or doing something other than payment of money. (
Secrest
,
supra
, 167 Cal.App.4th at p. 556.)
Plaintiffs argue that the contract does not fall under the statute of frauds because they substantially performed. (Opposition at p. 14:5-10.) Plaintiffs contend that this substantial performance consisted of completing due diligence, meeting and communicating with the prior agent of the Property, communicating with the Propertys prior owner, communicating with the contamination specialist, communicating with prospective investors, retaining an architect, putting together cost estimates, and putting together a timeline of development. The problem with Plaintiffs argument is that
full
performance, not
substantial
performance, is required. Plaintiffs do not provide any allegations in the Complaint or arguments in their brief indicating what performance was actually required of them. The Court is not prepared to jump to the conclusion that the list of actions Plaintiffs provide constituted the full performance of Plaintiffs obligations under the alleged contract.
The Court therefore finds that the statute of frauds is not satisfied. As a result, there Plaintiffs have not shown the probable validity of their claims for specific performance or breach of contract.
Resulting Trust
There are two problems with Plaintiffs resulting trust claim.
First, [a] resulting trust does not arise from any oral agreement between the parties, but only as a result of the advancement of at least part of the consideration by the one claiming to be the beneficiary. (
Laing v. Laubach
(1965) 233 Cal.App.2d 511, 517.) Plaintiffs have failed to allege or provide a written agreement.
Second, [a] resulting trust cannot be enforced in favor of a person who has paid part of the consideration for the transfer of property unless it is possible to clearly establish the amount of money contributed by him [or her] or the proportion of his [or her] contribution to the whole purchase price &. One who claims a resulting trust in land must establish clearly, convincingly and unambiguously, the precise amount or proportion of the consideration furnished by him [or her] &. If the claimant does not, then the presumption of ownership arising from the legal title is not overcome and a resulting trust will not be declared. (
Lloyds Bank California v. Wells Fargo Bank
(1986) 187 Cal.App.3d 1038, 10441045 [citations and quotation marks omitted].) Here, Plaintiffs do not allege that they paid any of the consideration for the Property, let alone part of it.
For both of these reasons, Plaintiffs have not shown the probable validity of their claim for resulting trust.
Constructive Trust
[A] constructive trust may only be imposed where the following three conditions are satisfied: (1) the existence of a res (property or some interest in property); (2) the right of a complaining party to that res; and (3) some wrongful acquisition or detention of the res by another party who is not entitled to it. (
Communist Party v. 522 Valencia, Inc.
(1995) 35 Cal.App.4th 980, 990.)
As discussed above, Plaintiffs have not provided evidence of a contract giving them a right to the Property. Plaintiffs have not pled or argued a different basis for such a right, either. As a result, Plaintiffs have not shown that they can satisfy the second element, and therefore have not shown the probable validity of this claim.
Quiet Title
Code of Civil Procedure, section 761.020 sets forth the requirements for an action for quiet title:
The complaint shall be verified and shall include all of the following:
(a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any.
(b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession.
(c) The adverse claims to the title of the plaintiff against which a determination is sought.
(d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought.
(e) A prayer for the determination of the title of the plaintiff against the adverse claims.
(Code Civ. Proc., § 761.020.)
There are several problems. First, the Complaint is not verified. Second, at its most generous reading, the Complaint alleges that the parties formed a contract to purchase the Property together but as discussed above, Plaintiffs have not satisfied the statute of frauds with respect to this contract, and therefore cannot show the basis for their title to the Property. For both of these reasons, the Court finds that Plaintiffs have not established the probable validity of their quiet title claim.
Conclusion
Plaintiffs have failed to show the probable validity of any of their claims sounding in real property. The Court therefore grants Defendants motion and orders the expungement of Plaintiffs lis pendens on the Property.
Preview
FILED: NEW YORK COUNTY CLERK 10/26/2023 10:48 AM INDEX NO. 452564/2022 NYSCEF DOC. NO. 1599 RECEIVED NYSCEF: 10/26/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PEOPLE OF THE STATE OF NEW Index No. 452564/2022 YORK, by LETITIA JAMES, Attorney General of the State of New York, Mot. Seq. 034 Hon. Arthur Engoron Plaintiff, -against- Donald J. Trump, et al., Defendants. PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO IVANKA TRUMP’S MOTION TO QUASH LETITIA JAMES Attorney General of the State of New York 28 Liberty Street New York, NY 10005 Andrew Amer Colleen K. Faherty Alex Finkelstein Sherief Gaber Wil Handley Eric R. Haren Mark Ladov Louis M. Solomon Stephanie Torre Kevin C. Wallace Of Counsel 1 of 12 FILED: NEW YORK COUNTY CLERK 10/26/2023 10:48 AM INDEX NO. 452564/2022 NYSCEF DOC. NO. 1599 RECEIVED NYSCEF: 10/26/2023 PRELIMINARY STATEMENT The Office of the New York State Attorney General (“OAG”) submits this memorandum of law in opposition to Ivanka Trump’s Motion to Quash Subpoenas Ad Testificandum issued by OAG to compel her testimony at trial in this action. Ms. Trump was served properly at the New York addresses and actual place of business of multiple entities that are under her control; she should be compelled to testify in this proceeding. While no longer a Defendant in this action, she indisputably has personal knowledge of facts relevant to the claims against the remaining individual and entity Defendants. 1 But even beyond that, Ms. Trump remains financially and professionally intertwined with the Trump Organization and other Defendants and can be called as a person still under their control. Finally, Ms. Trump has been and remains a litigant in the OAG’s concurrent, still active, special proceeding, and appeared in and litigated this action without contesting personal jurisdiction. These are sufficient, ample bases to compel Ms. Trump’s testimony. ARGUMENT 1. Ivanka Trump was Properly Served with Subpoenas A subpoena “shall be served in the same manner as a summons” under CPLR 2303. OAG has served subpoenas on Ms. Trump through several available means to ensure that she had adequate notice of the Subpoenas and to ensure that this Court could exercise its jurisdiction over Ms. Trump appropriately. New York courts “have not been hesitant in extending the reach of a subpoena to persons outside the State if they have a presence in the State and service is effected 1 Although the Appellate Division dismissed claims against Ms. Trump on statute of limitations grounds, this Court has repeatedly noted that the statute of limitations applies against claims and not evidence, and therefore has no bearing on the enforcement of this trial subpoena. 2 2 of 12 FILED: NEW YORK COUNTY CLERK 10/26/2023 10:48 AM INDEX NO. 452564/2022 NYSCEF DOC. NO. 1599 RECEIVED NYSCEF: 10/26/2023 in the State.” Coutts Bank Ltd. v. Anatian, 275 A.D.2d 609, 611 (1st Dep’t 2000) (noting that the Judiciary Law “is concerned not with where the witness is located, but, rather, where service is made”). See also Roach v. Tozzo, 2004 WL 6010961 (Sup. Ct. Queens Cty. 2004) (defendant still “found in the state” where they still owned property out of which their former business had operated) As an initial matter, Ms. Trump tries to draw a distinction between whether the subpoena had been served on her individually or as an officer of the entities addressed beneath her name in the subpoena. All roads here lead to Rome; regardless of how the subpoenas are parsed, 2 sufficient service was effected to compel Ms. Trump’s testimony, whether individually or as an officer or agent of the corporate entities. The factual knowledge in her possession and its relevance to this action does not change whether she is appearing, for example, as officer of Ivanka OPO, LLC or as Ivanka Trump who negotiated the OPO loan and other transactions at issue in this case. First, service may be effected in the State on a natural person by personal delivery to the individual at their “actual place of business,” defined broadly as “any location that the [subpoena recipient], through regular solicitation or advertisement, has held out as its place of business.” CPLR 308(6). In Xiao Hong Wang v Chi Kei Li, 169 A.D.3d 593 (1st Dept 2019), the First Department held that service was appropriately effectuated at an address where business tax bills See Deutsche Bank AG v Vik, 2015 N.Y. Misc. LEXIS 291 *34 (Sup. Ct. N.Y. Cty., 2015) (“Where one defendant is 2 subject to personal jurisdiction and service of process, its alter egos are subject to personal jurisdiction and may be served by serving it”) (quoting Glory Wealth Shipping Pte Ltd v Industrial Carriers, Inc., 590 F. Supp. 2d 562, 564 (S.D.N.Y. 2008)). Indeed, Ms. Trump herself cites Stanley Agency v. Behind the Bench (National Basketball Wives Association), 23 Misc. 3d 1107(A) (Sup. Ct. Kings Cty. 2009), which stated that “the Appellate Division, Second Department has held that service of a single summons on an officer of a corporation, who is also an individual defendant, constitutes proper service on both the corporation and the individual defendant” (emphasis added) Ms. Trump breaks up this quote to suggest it only applies to a defendant, but that language merely reflects the context there of service of a summons. Where a subpoena is to be served the same way on a third party, there is no question that the manner of service is applicable. 3 3 of 12 FILED: NEW YORK COUNTY CLERK 10/26/2023 10:48 AM INDEX NO. 452564/2022 NYSCEF DOC. NO. 1599 RECEIVED NYSCEF: 10/26/2023 were mailed to an individual, noting that, given service at such an address, the individual “may not now reasonably claim that he was not properly served.” Id. at 593. Similarly, in Gibson Dunn & Crutcher LLP v. Global Nuclear Services and Supply, Ltd., 280 A.D.2d 360, 361 (1st Dep’t 2001), the First Department held that an individual who had “effectively held out” an address as his place of business could be served at that address. In particular, in the course of that ruling, the First Department noted, among other facts, that the individual was “executive vice president and a significant shareholder of at least one company operating at that location.” Id. See also, e.g., Day v. Davis, 47 A.D.3d 750 (2d Dep’t 2008) (attorney who held out location as address could be served at that address). These standards are easily satisfied here. Ms. Trump has been properly served personally at her actual place of business, namely the address of Trump Tower, 725 5th Avenue, New York, NY, consistently used by Ms. Trump for transacting business through three separate entities that are under Ms. Trump’s partial or total control, TTT Consulting LLC, Ivanka OPO LLC and 502 Park Project LLC. OAG attempted personal delivery to Ms. Trump at that address and, following rejection of service, OAG undertook substituted service by mailing the subpoena and emailing a copy to Ms. Trump’s New York counsel of record. Second, service upon the three entities is sufficient to require those entities to produce Ms. Trump for testimony at trial. Standard Fruit & S. S. Co. v. Waterfront Commission, 43 N.Y.2d 11 (1977), establishes that entities doing business in New York may be required to produce their out-of-state personnel in judicial proceedings in this State. As the Court of Appeals explained, “[w]e hold that a corporation doing business in New York may be subpoenaed to testify as a witness about a corporate transaction through its officers and employees who have knowledge of the transaction.” Id. at 9. “It is no excuse that the officers and employees who participated in the 4 4 of 12 FILED: NEW YORK COUNTY CLERK 10/26/2023 10:48 AM INDEX NO. 452564/2022 NYSCEF DOC. NO. 1599 RECEIVED NYSCEF: 10/26/2023 corporate transaction involved are not within the jurisdiction or that they refuse to appear or testify in New York.” Id. Here, Ms. Trump, as an officer or owner of the entities named in the subpoenas, TTT Consulting LLC and 502 Park Project, LLC, can be compelled to appear in for testimony in New York, where those entities are found. For example, the entity Ivanka OPO LLC was the vehicle through which Ms. Trump exercised her ownership interest in the Old Post Office property. As set forth in its Operating Agreement, the “Principal Office” of Ivanka OPO LLC are the offices of the Trump Organization on Fifth Avenue in Manhattan, where the subpoena was ultimately served. See Gaber Aff, ¶9, Exhibit 3 3 Through Ivanka OPO, LLC, Ms. Trump undertook a host of commercial activities relevant to this case, guaranteeing, in connection with her ownership interest, a portion of Trump Old Post Office LLC’s loan from Deutsche Bank. Gaber Aff, Exh. 2 When the Trump Organization finally sold the OPO property in May of 2022, Eric Trump sent a congratulatory “all hands” email “[o]n behalf of my father, Ivanka, Don and our entire family.” Gaber Aff., Exh. 17. Ms. Trump and 3 Ms. Trump has averred that Ivanka OPO, LLC is a Delaware LLC without authorization to do business in New York. The entity’s failure to obtain proper authorization is not a defense to being found in New York, merely an admission of its transacting business without required authorization. 5 5 of 12 FILED: NEW YORK COUNTY CLERK 10/26/2023 10:48 AM INDEX NO. 452564/2022 NYSCEF DOC. NO. 1599 RECEIVED NYSCEF: 10/26/2023 Ivanka OPO LLC remained involved in the transaction, which as of the date of this proceeding had certain financial terms outstanding. There cannot be dispute that Ms. Trump, individually, through corporate entities she owns, controls or holds an interest in, or through her ongoing relationship with the Trump Organization is clearly doing business in New York and should be amenable to testify before its courts, regardless of her domicile. Standard Fruit & S. S. Co., 43 NY2d at 15 (1977)(“a corporation doing business in New York may be subpoenaed to testify as a witness about a corporate transaction through its officers and employees who have knowledge of the transaction”) In re Grand Jury Subpoenas, 70 NY2d 700 (1987)(corporate officers “doing business” in New York were within the state for jurisdictional purposes) See, also, e.g., Wallace v. Bacon, 143 A.D. 211, 215 (1st Dept 1911) (“the isolated fact that the party sought to be examined is a nonresident of this state, and that fact does not prevent a party to the action from examining such nonresident before trial if he can be found within this state and served with the order requiring his examination.”) 2. This Court has Personal Jurisdiction over Ivanka Trump First, the plain fact of the matter is that service on Ms. Trump personally, at the actual place of business she has used with multiple corporate alter egos, as described above is sufficient under CPLR 308(2) to establish personal jurisdiction over a natural person. The cases cited by Ms. Trump are all inapposite: Amelius v. Grand Imperial LLC, 64 N.Y.S.3d 855, 865–66 (Sup. Ct. N.Y. Cty. 2017) dealt with the issue of general jurisdiction over an out of state corporate defendant and whether New York’s long-arm statute could be used to obtain general jurisdiction over and subpoena a foreign corporation. In re Three Arrows Cap. Ltd., 649 B.R. 143 (Bankr. S.D.N.Y. 2023) is a bankruptcy case interpreting federal civil procedure on service of foreign 6 6 of 12 FILED: NEW YORK COUNTY CLERK 10/26/2023 10:48 AM INDEX NO. 452564/2022 NYSCEF DOC. NO. 1599 RECEIVED NYSCEF: 10/26/2023 parties that ultimately did not reach a decision on personal jurisdiction. Genger v Genger, 50 Misc 3d 361 (Sup. Ct. N.Y. Cty. 2015) deals with a privilege from further suit of nondomiciliary witnesses travelling to New York to give testimony. 4 Second, having served the subpoenas “within the state” as described above, there is no need to consider long-arm jurisdiction. To the extent general or specific jurisdiction over Ms. Trump or any of her corporate entities is concerned, there is an ample record showing that Ms. Trump’s corporate entities are all at home in New York and subject to this court’s general jurisdiction. In the case of Ivanka OPO, LLC, that entity would be subject to general jurisdiction by virtue of the fact that its operating agreement and nearly all available transaction documents show it to be “at home” in New York City, notwithstanding its lack of legal authority to do business in the state. Aybar v. Aybar 37 N.Y.3d 274 (2021). TTT Consulting LLC likewise appears to have its principal place of business in New York, and 502 Park Project LLC is a New York entity. Third, even if the Court should not want to reach the issue of general jurisdiction, Ms. Trump and the other entities through which she has been subpoenaed have extensive contacts with the State, concerning the facts at issue, more than sufficient to justify specific jurisdiction and her being called to testify. 4 The final paragraph in Coutts Bank 275 AD2d at 613 is an instructive analogy here: “Finally, we note that the judgment-debtor's arguments in support of the proposition that long-arm jurisdiction does not apply to the service of a subpoena ignore the fact that jurisdiction is here asserted on the basis of service of the subpoena "in the state" through his attorneys. The record also discloses that, at the time of such service, the judgment-debtor owned a home in the State, appeared in the United States Bankruptcy Court for the Southern District of New York to prosecute personal claims against one of his former companies and was designated manager of seven LLCs, all of which were listed as "active" in New York. All of these factors are relevant to a designation for substituted service under CPLR 308 (5).)” 7 7 of 12 FILED: NEW YORK COUNTY CLERK 10/26/2023 10:48 AM INDEX NO. 452564/2022 NYSCEF DOC. NO. 1599 RECEIVED NYSCEF: 10/26/2023 Fourth, the fact that Ms. Trump has submitted to this Court’s jurisdiction supports the Court’s compulsion of her testimony at trial. Judiciary Law § 2-b(1) authorizes a trial subpoena’s issuance to anyone who is “found in the State,” and additionally authorizes the Court to issue any order “necessary to carry into effect the powers and jurisdiction possessed by it.” Ms. Trump, in the ongoing special proceeding (No. 451685/2020), remains subject to this Court’s jurisdiction. Furthermore, when she was a party to this action, Ms. Trump did not contest personal jurisdiction despite ample litigation and opportunity to do so. Therefore, that defense should be deemed waived, as notwithstanding her dismissal as a party and recall as a witness, the facts surrounding this court’s jurisdiction over her in this action have not changed. Gaber Aff., ¶5 Accordingly, this Court may exercise jurisdiction over her and compel her testimony here. The First Department’s decision in Coutts Bank (Switzerland) Ltd. v. Anatian, 275 A.D.2d 609 (1st Dep’t 2000), is instructive. There, the court found an individual judgment debtor was subject to subpoena under Judiciary Law § 2-b(1) by virtue of their litigation of “a related federal action” in this State. Id. at 609; see also id. at 609 (Sullivan, P.J., concurring). Here, Ms. Trump is similarly situated to the judgment debtor in Anatian: not only does she remain a party to related litigation, but she voluntarily initiated a substantial portion of that litigation to challenge the Attorney General’s investigative subpoena issued to her. The proceeding in which her challenge was rejected remains ongoing, so Ms. Trump remains subject to the jurisdiction of the Court and her testimony may be compelled here. Finally, Ms. Trump remains under the control of the Trump Organization, including through her ongoing and substantial business ties to the organization. Ms. Trump reappointed herself to a participating member of several Trump Organization entities following her departure from government. Gaber Aff., ¶¶17, 18, Exh. 4. Moreover she does not seem to be averse to her 8 8 of 12 FILED: NEW YORK COUNTY CLERK 10/26/2023 10:48 AM INDEX NO. 452564/2022 NYSCEF DOC. NO. 1599 RECEIVED NYSCEF: 10/26/2023 involvement in the family business when it comes to owning and collecting proceeds from the OPO sale, the Trump Organization purchasing insurance for her and her companies, managing her household staff and credit card bills, renting her apartment or even paying her legal fees in this action. 5 It is only when she is tasked with answering for that involvement that she disclaims any connection. But her attempt now to distance herself from her family’s business carries no legal weight. 3. Ms. Trump Cannot Designate Someone Else to Testify in Her Place Ms. Trump conflates rules for noticing the deposition of a corporate entity by designating an individual to testify on behalf of the corporation, 22 NYCRR § 202.20-d, with the rules governing a trial subpoena seeking testimony from a corporate officer or agent with personal knowledge of the relevant facts. Rule 202.20-d governs deposition testimony about “information known or reasonably available to the entity” to be given during the pretrial phase, and is meant to streamline discovery and information gathering from an entity. New York law is clear, however, about the distinction between witness’ personal knowledge and hearsay information they learn from corporate records. Matter of New York City Asbestos Litig., 27 N.Y.3d 765, 804 (2016) (witness who only knew about transactions at issue from familiarizing himself with corporate documents correctly precluded). See also Evans v. 3M Co., 2017 N.Y. Misc. LEXIS 1152, *6 (Sup. Ct. N.Y. Cty. 2017) (“Defendant cannot circumvent the requirement that a witness have personal knowledge merely because that witness testifies for a corporation”) 5 See Gaber Aff ¶30 9 9 of 12 FILED: NEW YORK COUNTY CLERK 10/26/2023 10:48 AM INDEX NO. 452564/2022 NYSCEF DOC. NO. 1599 RECEIVED NYSCEF: 10/26/2023 The Corporation’s obligation under Standard Fruit (43 N.Y.2d at 11), similarly, is to produce the required witness with personal knowledge, not a mere representative. Other Defendants cannot testify as to Ms. Trump’s personal knowledge, and they are no substitute for her appearance as a trial witness. 4. There is No Basis to Limit Ms. Trump’s Testimony at Trial. Lastly, assuming Ms. Trump is required to appear, there is no basis to limit the substance of her testimony. She was a key participant in many of the events at issue, as the Court is aware. Moreover, the Court has broad discretion concerning the scope of any direct, cross, and re-direct examination. See, e.g., Ingebretsen v. Manha, 218 A.D.2d 784, 784 (2d Dep’t 1995) (citing Feldsberg v. Nitschke, 49 N.Y.2d 636 (1980)). Ms. Trump cites only to a single case in support of her position, Mestel & Co. v. Smythe Masterson & Judd, Inc., 215 A.D.2d 329, which involves a subpoena duces tecum not a testimonial subpoena. The more apposite case is elsewhere in Ms. Trump’s brief, 23/23 Communs. Corp. v. GMC, 172 Misc. 2d 821, 824 (Sup Ct NY County 1997), which states “[t]he traditional rule is that ‘[s]ince the court should not anticipate potential lines of questioning, the power to issue a subpoena ad testificandum is absolute and unlimited. The court should not impose a pretestimonial hearing on the ‘absolute and unlimited’ right of a party to issue a trial subpoena.” (Internal citations and quotations omitted). See also Ocean-Clear, Inc. v Continental Cas. Co., 94 A.D.2d 717, 719 (2d Dep’t 1983); Matter of Dwyer v Wilcox, 92 A.D.2d 646 (3d Dep’t 1983); Matter of Hirshfeld v Craig, 239 N.Y. 98, 117 (1924). 10 10 of 12 FILED: NEW YORK COUNTY CLERK 10/26/2023 10:48 AM INDEX NO. 452564/2022 NYSCEF DOC. NO. 1599 RECEIVED NYSCEF: 10/26/2023 CONCLUSION For the foregoing reasons, this court should deny Ms. Trump’s motion to quash the testimonial subpoenas and direct her to appear and provide testimony at trial. Dated: New York, New York October 25, 2023 Respectfully submitted, LETITIA JAMES Attorney General of the State of New York By: _________________________ Sherief Gaber Andrew Amer Colleen K. Faherty Alex Finkelstein Wil Handley Eric R. Haren Mark Ladov Louis M. Solomon Stephanie Torre Kevin C. Wallace Office of the New York State Attorney General 28 Liberty Street New York, NY 10005 Phone: (212) 416-6403 Sherief.gaber@ag.ny.gov Attorney for the People of the State of New York 11 11 of 12 FILED: NEW YORK COUNTY CLERK 10/26/2023 10:48 AM INDEX NO. 452564/2022 NYSCEF DOC. NO. 1599 RECEIVED NYSCEF: 10/26/2023 CERTIFICATION OF COMPLIANCE WITH UNIFORM CIVIL RULE 202.8-b I certify that the foregoing document, excluding the caption, table of contents, table of authorities, and signature block, contains 2765 words. I further certify that I relied on the word count of the word-processing system used to prepare the document. ____________________________________ SHERIEF GABER 12 12 of 12