Preview
1 MALCOLM S. MCNEIL (SBN 109601)
malcolm.mcneil@afslaw.com
2 LYNN R. FIORENTINO (SBN 226691)
lynn.fiorentino@afslaw.com
3 JEFF LEUNG (SBN 310960)
jeff.leung@afslaw.com
4 ARENTFOX SCHIFF LLP
555 West Fifth Street, 48th Floor
5 Los Angeles, CA 90013
Telephone: 213.629.7400
6 Facsimile: 213.629.7401
7 Attorneys for Defendant and Cross-Complainant
TANIS FOOD TEC B.V.
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SONOMA
11
12 SMASHMALLOW, LLC, a Delaware limited Case No. SCV-268477
liability company,
13 DEFENDANT AND CROSS-
Plaintiff, COMPLAINANT TANIS FOOD TEC
14 B.V.’S NOTICE OF MOTION AND
v. MOTION TO STRIKE PLAINTIFF
15 SMAHSMALLOW, LLC’S
TANIS FOOD TEC B.V., a Netherlands AFFIDAVIT OF UNDERTAKING
16 limited liability company; JOHN DOES 1-50, AND RESPONSE TO TANIS’
inclusive, OBJECTIONS THERETO
17
Defendant.
18 [Filed Concurrently with Declaration of
Lynn R. Fiorentino and [PROPOSED]
19 Order.]
TANIS FOOD TEC B.V.,
20 Date:
Cross-Complainant, Time:
21 Dept:
v.
22 Judge: The Hon. Christopher
SMASHMALLOW, LLC, ROES 1-50, M. Honigsberg
inclusive, Department: 18
23
Cross-Defendant. Complaint Filed: May 26, 2021
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Trial Date: September 8, 2023
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A RE NT F OX S C HIFF LLP -1-
ATTO RNEY S AT LAW
L OS A NGE L E S
DEFENDANT AND CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S MOTION TO STRIKE
1 NOTICE OF MOTION AND MOTION TO STRIKE
2 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD:
3 PLEASE TAKE NOTICE that on ___________ at ____ p.m., or as soon thereafter as the
4 matter may be heard, before the Honorable Christopher Honigsberg in Department 18 of the
5 Sonoma County Superior Court, located at 3055 Cleveland Ave, Santa Rosa, CA 95403, Defendant
6 and Cross-Complainant Tanis Food Tec B.V. (“Tanis”) will and hereby does move this Court for
7 an order to strike Plaintiff and Cross-Defendant Smashmallow, LLC’s (“Smashmallow”) Affidavit
8 of Undertaking and Response to Tanis’ Objections to Smashmallow’s Affidavit of Undertaking
9 (the “Affidavit”) Under Code of Civil Procedure Section 529 filed on November 20, 2023.
10 This motion is made pursuant to Code of Civil Procedure section 529 and the Bonds and
11 Undertaking Law under Code of Civil Procedure Sections 995.010 to 997 on the grounds that the
12 Affidavit is procedurally and substantively defective as the bond, the sureties, and the form and
13 content of the undertaking are insufficient. On these grounds, Tanis requests that the Court strike
14 the Affidavit from the record as it is procedurally and substantively insufficient.
15 This motion is based upon this Notice, the attached Memorandum of Points and Authorities,
16 the Declaration of Lynn R. Fiorentino in support thereof, all other papers and records on file with
17 this Court, and such other evidence and oral argument as may be presented at the hearing on this
18 Motion.
19
Dated: December 11, 2023 ARENTFOX SCHIFF LLP
20
21
By:
22 MALCOLM S. MCNEIL
LYNN R. FIORENTINO
23 JEFF LEUNG
Attorneys for Cross-Complainant
24 TANIS FOOD TEC B.V.
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A RE NT F OX S C HIFF LLP
ATTO RNEY S AT LAW DEFENDANT AND CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S MOTION TO STRIKE PLAINTIFF
L OS A NGE LE S
SMASHMALLOW, LLC’S AFFIDAVIT OF UNDERTAKING
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiff Smashmallow, LLC’s (“Smashmallow”) Affidavit of Undertaking and Response
4 to Tanis’ Objections to Smashmallow’s Affidavit of Undertaking (the “Affidavit”) Under Code of
5 Civil Procedure Section 529 are procedurally and substantively improper. Plaintiff ignores that an
6 undertaking is merely a form of a bond, and the Affidavit circumvents the requirement of posting
7 a security with the Court. To date, Plaintiff has not posted the required bond and has failed to
8 comply with the substantive and procedural requirements for an undertaking set forth in the Bonds
9 and Undertaking Law under Code of Civil Procedure sections 995.010 to 997. Accordingly, this
10 Court should strike the Affidavit from the record and require Plaintiff to post a bond in the amount
11 of $250,000.
12 II. RELEVANT PROCEDURAL AND FACTUAL BACKGROUND
13 On November 17, 2023, the Court issued an Order on Submitted Matter Re: Plaintiff’s
14 Motion for Post-Judgment Discovery and Plaintiff’s Motion for Preliminary Injunction (the
15 “Order”) granting Plaintiff’s Preliminary Injunction “conditioned on Plaintiffs posting an
16 undertaking of $250,000.” (Declaration of Lynn Fiorentino (“Fiorentino Decl.”) ¶ 2, Ex. A.)
17 In response, on November 22, 2023, Plaintiff filed a three-paragraph affidavit signed by a
18 “representative of Smashmallow, LLC,” Caitlyn McDuffee, and did not post a bond of any kind or
19 make any monetary deposit with the Court. (Fiorentino Decl. ¶ 3, Ex. B.) McDuffee’s relationship
20 to Smashmallow, LLC and any indication of her ability to pay $250,000.00 on its behalf is absent
21 from the Affidavit. (Id.)
22 On November 22, 2023, Tanis filed Objections to the Affidavit. (Fiorentino Decl. ¶ 4, Ex.
23 C.) On December 1, 2023, Plaintiff responded to Tanis’s Objections claiming that an undertaking
24 does not require that a bond be posted with the Court for a preliminary injunction. (Fiorentino Decl.
25 ¶ 5, Ex. D.) To date, Plaintiff has made no indication that it intends to post the required bond.
26 (Fiorentino Decl. ¶ 6.)
27 Based on the financial representations of Plaintiff during trial, Smashmallow has little to no
28 assets. (Fiorentino Decl. ¶ 7, Ex. E.) Specifically, on October 10, 2023, during direct examination,
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A RE NT F OX S C HIFF LLP
ATTO RNEY S AT LAW DEFENDANT AND CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S MOTION TO STRIKE PLAINTIFF
L OS A NGE LE S
SMASHMALLOW, LLC’S AFFIDAVIT OF UNDERTAKING
1 Shahir Amin, board member and fiduciary for Sonoma Brands, the majority investor in
2 Smashmnallow, stated that Smashmallow has no assets today:
3 Q. Today, does Smashmallow have any assets?
4 A.· Very – very minimal.
5 Q.· Does Smashmallow make any marshmallows?
6 A.· It does not.
7 Q.· Does it make any products whatsoever?
8 A.· It does not.
9 Q.· Did it have any revenue in 2023?
10 A.· It did not.
11 Q.· Does it have any employees?
12 A.· It does not.
13 (Id.)
14 III. ARGUMENT
15 A. An Undertaking is Required for a Preliminary Injunction.
16 An undertaking is required if a preliminary injunction is granted. “On granting an
17 injunction, the court or judge must require an undertaking on the part of the applicant to the effect
18 that the applicant will pay to the party enjoined any damages, not exceeding an amount to be
19 specified, the party may sustain by reason of the injunction, if the court finally decides that the
20 applicant was not entitled to the injunction.” (Civ. Proc. Code § 529(a) (emphasis added).) This
21 requirement of posting a security with the Court serves to protect the non-moving party. It is well-
22 established that “…the purpose of requiring security is to afford compensation to the party wrongly
23 enjoined or restrained.” City of South San Francisco c. Cypress Lawn Cemetery Cnty. (1964) 229
24 Cal. App. 2d 672, 687 (“[w]ithout [a] bond a preliminary injunction is a nullity.”) Therefore, as
25 Plaintiff has sought and this Court has awarded a Preliminary Injunction, Plaintiff is required to
26 post an undertaking.
27 B. An Undertaking is a Type of Bond.
28 While Plaintiff’s response to Tanis’ Objections to the Affidavit make much of this Court
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A RE NT F OX S C HIFF LLP
ATTO RNEY S AT LAW DEFENDANT AND CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S MOTION TO STRIKE PLAINTIFF
L OS A NGE LE S
SMASHMALLOW, LLC’S AFFIDAVIT OF UNDERTAKING
1 ordering Plaintiffs to post an undertaking versus a bond, an undertaking is simply a form of a bond.
2 (Law Revision Commission Comments, 1982 Addition, Civ. Proc. Code § 995.190; 997.140.) “The
3 only difference between a bond and undertaking is that an undertaking is executed by the sureties
4 and not the principal. See Section 995.140 (‘bond’ defined). The two instruments are
5 interchangeable if given pursuant to statute. See Section 995.210 (bonds and undertakings
6 interchangeable). For drafting purposes, ‘undertaking’ is included in the term ‘bond.’ ” Id.
7 Accordingly, Plaintiff’s is required to post a bond, or an acceptable alternative monetary deposit
8 with the Court, per the Order.
9 C. Plaintiff’s Purported Undertaking Amounts to No Undertaking at All
10 “An undertaking may be filed which is so defective as not to constitute any obligation upon
11 the sureties therein, and which is in reality no undertaking at all.” (Jarman v. Rea (1990) 129 Cal.
12 157, 158.) That is precisely the case here as the Affidavit makes no effort to comply with the
13 requirements of an undertaking set forth in Code of Civil Procedure Section 529 and the Bonds and
14 Undertaking Law under Code of Civil Procedure Sections 995.010 to 997.
15 Most glaringly, the Affidavit is defective because Plaintiff has made no effort to post the
16 bond required under Section 529, and therefore has not complied with this Court’s order to post an
17 undertaking. In addition to failing to comply with the threshold requirement of posting a bond,
18 Plaintiff failed to comply with several requirements under the Bonds and Undertaking Law under
19 Code of Civil Procedure sections 995.010 to 997. These deficiencies include, but are not limited to,
20 failing to deposit money with the Court in lieu of posting a bond (995.710, et seq.); failing to comply
21 with the substantive requirements for the undertaking (Civ. Proc. Code § 995.320); and failing to
22 include adequate sureties (Civ. Proc. Code § 995.185 (defining “surety”); § 995.310 (stating that
23 “a bond shall be executed by two or more sufficient personal sureties or by one sufficient admitted
24 surety insurer…”); §§ 995.510, 995.520 (specifying requirements for personal sureties, including
25 the accompanying “affidavit of qualifications”)). Plaintiff’s Affidavit does not even attempt to
26 satisfy these requirements and therefore must be stricken.
27 Neither the Affidavit, nor Plaintiff’s response to Tanis’ Objections thereto cure the fact that
28 Plaintiff has provided no assurances that Tanis will be afforded compensation in the event that the
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A RE NT F OX S C HIFF LLP
ATTO RNEY S AT LAW DEFENDANT AND CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S MOTION TO STRIKE PLAINTIFF
L OS A NGE LE S
SMASHMALLOW, LLC’S AFFIDAVIT OF UNDERTAKING
1 preliminary injunction was wrongly issued. Based on the financial representations of Plaintiff
2 during trial, Smashmallow has little to no assets. Plaintiff’s Affidavit is merely signed by a
3 “representative of Smashmallow, LLC,” Caitlyn McDuffee, but McDuffee’s relationship to
4 Smashmallow, LLC and any indication of her ability to pay $250,000.00 on its behalf is absent.
5 Accordingly, based on the Court’s Order, Code of Civil Procedure section 529(a), and the
6 Bonds and Undertaking Law set forth in Code of Civil Procedure sections 995.010 to 997 this Court
7 should strike the Affidavit from the record as it is procedurally and substantively deficient and
8 contain misstatements of the law.
9 IV. CONCLUSION
10 For each of the foregoing reasons, Tanis respectfully requests that the Court grant its Motion
11 to Strike the Affidavit.
12
Dated: December 11, 2023 ARENTFOX SCHIFF LLP
13
14
By:
15 MALCOLM S. MCNEIL
LYNN R. FIORENTINO
16 JEFF LEUNG
Attorneys for Cross-Complainant
17 TANIS FOOD TEC B.V.
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A RE NT F OX S C HIFF LLP
ATTO RNEY S AT LAW DEFENDANT AND CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S MOTION TO STRIKE PLAINTIFF
L OS A NGE LE S
SMASHMALLOW, LLC’S AFFIDAVIT OF UNDERTAKING
1 Smashmallow, LLC v. Tanis Food Tec B.V.
Sonoma County Superior County Case No.: SCV-268477
2
PROOF OF SERVICE
3
I am a citizen of the United States. My business address is ArentFox Schiff LLP,
4 44 Montgomery Street, 38th Floor, San Francisco, California 94104. I am employed in the County
of San Francisco where this service occurs. I am over the age of 18 years, and not a party to the
5 within cause.
6 On the date set forth below, according to ordinary business practice, I served the foregoing
document(s) described as:
7
DEFENDANT AND CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S NOTICE
8
OF MOTION AND MOTION TO STRIKE
9 (BY FAX) I transmitted via facsimile, from facsimile number 415-757-5500, the
document(s) to the person(s) on the attached service list at the fax number(s) set
10 forth therein, on this date before 5:00 p.m. A statement that this transmission was
reported as complete and properly issued by the sending fax machine without
11 error is attached to this Proof of Service.
12 (BY E-MAIL) On this date, I personally transmitted the foregoing document(s)
via my electronic service address (Natalie.Moore@afslaw.com) to the e-mail
13 address(es) of the person(s) on the attached service list.
14 (BY MAIL) I am readily familiar with my employer’s business practice for
collection and processing of correspondence for mailing with the U.S. Postal
15 Service, and that practice is that correspondence is deposited with the U.S. Postal
Service the same day as the day of collection in the ordinary course of business.
16 On this date, I placed the document(s) in envelopes addressed to the person(s) on
the attached service list and sealed and placed the envelopes for collection and
17 mailing following ordinary business practices.
18
(BY PERSONAL SERVICE) On this date, I caused the document(s) to be
19
personally delivered to the persons(s) on the attached service list.
(BY OVERNIGHT DELIVERY) On this date, I placed the documents in
20 envelope(s) addressed to the person(s) on the attached service list, and caused
21 those envelopes to be delivered to an overnight delivery carrier, with delivery
fees provided for, for next-business-day delivery to whom it is to be served.
22
(State) I declare under penalty of perjury under the laws of the State of
23
California that the foregoing is true and correct.
24 Executed on December 11, 2023, at San Francisco, California.
25
26
Natalie Moore
27
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A RE NT F OX S C HIFF LLP -7-
ATTO RNEY S AT LAW
L OS A NGE L E S
DEFENDANT AND CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S MOTION TO STRIKE
1 Smashmallow, LLC v. Tanis Food Tec B.V.
Sonoma County Superior County Case No.: SCV-268477
2
3 SERVICE LIST
4
J. Noah Hagey, Esq. Attorneys for Plaintiff
5 David Kwasniewski, Esq. SMASHMALLOW, LLC
Robert T. Petraglia, Esq.
6 Shirley Chan, Esq.
Ellen Leonida, Esq.
7
BRAUNHAGEY & BORDEN LLP
8 351 California Street, 10th Floor
San Francisco, CA 94104
9
Tel.: 415.599.0210
10 Fax: 415.599.0210
11 hagey@braunhagey.com
kwasniewski@braunhagey.com
12 petraglia@braunhagey.com
chan@braunhagey.com
13 leonida@braunhagey.com
yan@braunhagey.com
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ATTO RNEY S AT LAW
L OS A NGE L E S
DEFENDANT AND CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S MOTION TO STRIKE
Preview
1 MALCOLM S. MCNEIL (SBN 109601) malcolm.mcneil@afslaw.com 2 LYNN R. FIORENTINO (SBN 226691) lynn.fiorentino@afslaw.com 3 JEFF LEUNG (SBN 310960) jeff.leung@afslaw.com 4 ARENTFOX SCHIFF LLP 555 West Fifth Street, 48th Floor 5 Los Angeles, CA 90013 Telephone: 213.629.7400 6 Facsimile: 213.629.7401 7 Attorneys for Defendant and Cross-Complainant TANIS FOOD TEC B.V. 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SONOMA 11 12 SMASHMALLOW, LLC, a Delaware limited Case No. SCV-268477 liability company, 13 DEFENDANT AND CROSS- Plaintiff, COMPLAINANT TANIS FOOD TEC 14 B.V.’S NOTICE OF MOTION AND v. MOTION TO STRIKE PLAINTIFF 15 SMAHSMALLOW, LLC’S TANIS FOOD TEC B.V., a Netherlands AFFIDAVIT OF UNDERTAKING 16 limited liability company; JOHN DOES 1-50, AND RESPONSE TO TANIS’ inclusive, OBJECTIONS THERETO 17 Defendant. 18 [Filed Concurrently with Declaration of Lynn R. Fiorentino and [PROPOSED] 19 Order.] TANIS FOOD TEC B.V., 20 Date: Cross-Complainant, Time: 21 Dept: v. 22 Judge: The Hon. Christopher SMASHMALLOW, LLC, ROES 1-50, M. Honigsberg inclusive, Department: 18 23 Cross-Defendant. Complaint Filed: May 26, 2021 24 Trial Date: September 8, 2023 25 26 27 28 A RE NT F OX S C HIFF LLP -1- ATTO RNEY S AT LAW L OS A NGE L E S DEFENDANT AND CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S MOTION TO STRIKE 1 NOTICE OF MOTION AND MOTION TO STRIKE 2 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: 3 PLEASE TAKE NOTICE that on ___________ at ____ p.m., or as soon thereafter as the 4 matter may be heard, before the Honorable Christopher Honigsberg in Department 18 of the 5 Sonoma County Superior Court, located at 3055 Cleveland Ave, Santa Rosa, CA 95403, Defendant 6 and Cross-Complainant Tanis Food Tec B.V. (“Tanis”) will and hereby does move this Court for 7 an order to strike Plaintiff and Cross-Defendant Smashmallow, LLC’s (“Smashmallow”) Affidavit 8 of Undertaking and Response to Tanis’ Objections to Smashmallow’s Affidavit of Undertaking 9 (the “Affidavit”) Under Code of Civil Procedure Section 529 filed on November 20, 2023. 10 This motion is made pursuant to Code of Civil Procedure section 529 and the Bonds and 11 Undertaking Law under Code of Civil Procedure Sections 995.010 to 997 on the grounds that the 12 Affidavit is procedurally and substantively defective as the bond, the sureties, and the form and 13 content of the undertaking are insufficient. On these grounds, Tanis requests that the Court strike 14 the Affidavit from the record as it is procedurally and substantively insufficient. 15 This motion is based upon this Notice, the attached Memorandum of Points and Authorities, 16 the Declaration of Lynn R. Fiorentino in support thereof, all other papers and records on file with 17 this Court, and such other evidence and oral argument as may be presented at the hearing on this 18 Motion. 19 Dated: December 11, 2023 ARENTFOX SCHIFF LLP 20 21 By: 22 MALCOLM S. MCNEIL LYNN R. FIORENTINO 23 JEFF LEUNG Attorneys for Cross-Complainant 24 TANIS FOOD TEC B.V. 25 26 27 28 -2- A RE NT F OX S C HIFF LLP ATTO RNEY S AT LAW DEFENDANT AND CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S MOTION TO STRIKE PLAINTIFF L OS A NGE LE S SMASHMALLOW, LLC’S AFFIDAVIT OF UNDERTAKING 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Plaintiff Smashmallow, LLC’s (“Smashmallow”) Affidavit of Undertaking and Response 4 to Tanis’ Objections to Smashmallow’s Affidavit of Undertaking (the “Affidavit”) Under Code of 5 Civil Procedure Section 529 are procedurally and substantively improper. Plaintiff ignores that an 6 undertaking is merely a form of a bond, and the Affidavit circumvents the requirement of posting 7 a security with the Court. To date, Plaintiff has not posted the required bond and has failed to 8 comply with the substantive and procedural requirements for an undertaking set forth in the Bonds 9 and Undertaking Law under Code of Civil Procedure sections 995.010 to 997. Accordingly, this 10 Court should strike the Affidavit from the record and require Plaintiff to post a bond in the amount 11 of $250,000. 12 II. RELEVANT PROCEDURAL AND FACTUAL BACKGROUND 13 On November 17, 2023, the Court issued an Order on Submitted Matter Re: Plaintiff’s 14 Motion for Post-Judgment Discovery and Plaintiff’s Motion for Preliminary Injunction (the 15 “Order”) granting Plaintiff’s Preliminary Injunction “conditioned on Plaintiffs posting an 16 undertaking of $250,000.” (Declaration of Lynn Fiorentino (“Fiorentino Decl.”) ¶ 2, Ex. A.) 17 In response, on November 22, 2023, Plaintiff filed a three-paragraph affidavit signed by a 18 “representative of Smashmallow, LLC,” Caitlyn McDuffee, and did not post a bond of any kind or 19 make any monetary deposit with the Court. (Fiorentino Decl. ¶ 3, Ex. B.) McDuffee’s relationship 20 to Smashmallow, LLC and any indication of her ability to pay $250,000.00 on its behalf is absent 21 from the Affidavit. (Id.) 22 On November 22, 2023, Tanis filed Objections to the Affidavit. (Fiorentino Decl. ¶ 4, Ex. 23 C.) On December 1, 2023, Plaintiff responded to Tanis’s Objections claiming that an undertaking 24 does not require that a bond be posted with the Court for a preliminary injunction. (Fiorentino Decl. 25 ¶ 5, Ex. D.) To date, Plaintiff has made no indication that it intends to post the required bond. 26 (Fiorentino Decl. ¶ 6.) 27 Based on the financial representations of Plaintiff during trial, Smashmallow has little to no 28 assets. (Fiorentino Decl. ¶ 7, Ex. E.) Specifically, on October 10, 2023, during direct examination, -3- A RE NT F OX S C HIFF LLP ATTO RNEY S AT LAW DEFENDANT AND CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S MOTION TO STRIKE PLAINTIFF L OS A NGE LE S SMASHMALLOW, LLC’S AFFIDAVIT OF UNDERTAKING 1 Shahir Amin, board member and fiduciary for Sonoma Brands, the majority investor in 2 Smashmnallow, stated that Smashmallow has no assets today: 3 Q. Today, does Smashmallow have any assets? 4 A.· Very – very minimal. 5 Q.· Does Smashmallow make any marshmallows? 6 A.· It does not. 7 Q.· Does it make any products whatsoever? 8 A.· It does not. 9 Q.· Did it have any revenue in 2023? 10 A.· It did not. 11 Q.· Does it have any employees? 12 A.· It does not. 13 (Id.) 14 III. ARGUMENT 15 A. An Undertaking is Required for a Preliminary Injunction. 16 An undertaking is required if a preliminary injunction is granted. “On granting an 17 injunction, the court or judge must require an undertaking on the part of the applicant to the effect 18 that the applicant will pay to the party enjoined any damages, not exceeding an amount to be 19 specified, the party may sustain by reason of the injunction, if the court finally decides that the 20 applicant was not entitled to the injunction.” (Civ. Proc. Code § 529(a) (emphasis added).) This 21 requirement of posting a security with the Court serves to protect the non-moving party. It is well- 22 established that “…the purpose of requiring security is to afford compensation to the party wrongly 23 enjoined or restrained.” City of South San Francisco c. Cypress Lawn Cemetery Cnty. (1964) 229 24 Cal. App. 2d 672, 687 (“[w]ithout [a] bond a preliminary injunction is a nullity.”) Therefore, as 25 Plaintiff has sought and this Court has awarded a Preliminary Injunction, Plaintiff is required to 26 post an undertaking. 27 B. An Undertaking is a Type of Bond. 28 While Plaintiff’s response to Tanis’ Objections to the Affidavit make much of this Court -4- A RE NT F OX S C HIFF LLP ATTO RNEY S AT LAW DEFENDANT AND CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S MOTION TO STRIKE PLAINTIFF L OS A NGE LE S SMASHMALLOW, LLC’S AFFIDAVIT OF UNDERTAKING 1 ordering Plaintiffs to post an undertaking versus a bond, an undertaking is simply a form of a bond. 2 (Law Revision Commission Comments, 1982 Addition, Civ. Proc. Code § 995.190; 997.140.) “The 3 only difference between a bond and undertaking is that an undertaking is executed by the sureties 4 and not the principal. See Section 995.140 (‘bond’ defined). The two instruments are 5 interchangeable if given pursuant to statute. See Section 995.210 (bonds and undertakings 6 interchangeable). For drafting purposes, ‘undertaking’ is included in the term ‘bond.’ ” Id. 7 Accordingly, Plaintiff’s is required to post a bond, or an acceptable alternative monetary deposit 8 with the Court, per the Order. 9 C. Plaintiff’s Purported Undertaking Amounts to No Undertaking at All 10 “An undertaking may be filed which is so defective as not to constitute any obligation upon 11 the sureties therein, and which is in reality no undertaking at all.” (Jarman v. Rea (1990) 129 Cal. 12 157, 158.) That is precisely the case here as the Affidavit makes no effort to comply with the 13 requirements of an undertaking set forth in Code of Civil Procedure Section 529 and the Bonds and 14 Undertaking Law under Code of Civil Procedure Sections 995.010 to 997. 15 Most glaringly, the Affidavit is defective because Plaintiff has made no effort to post the 16 bond required under Section 529, and therefore has not complied with this Court’s order to post an 17 undertaking. In addition to failing to comply with the threshold requirement of posting a bond, 18 Plaintiff failed to comply with several requirements under the Bonds and Undertaking Law under 19 Code of Civil Procedure sections 995.010 to 997. These deficiencies include, but are not limited to, 20 failing to deposit money with the Court in lieu of posting a bond (995.710, et seq.); failing to comply 21 with the substantive requirements for the undertaking (Civ. Proc. Code § 995.320); and failing to 22 include adequate sureties (Civ. Proc. Code § 995.185 (defining “surety”); § 995.310 (stating that 23 “a bond shall be executed by two or more sufficient personal sureties or by one sufficient admitted 24 surety insurer…”); §§ 995.510, 995.520 (specifying requirements for personal sureties, including 25 the accompanying “affidavit of qualifications”)). Plaintiff’s Affidavit does not even attempt to 26 satisfy these requirements and therefore must be stricken. 27 Neither the Affidavit, nor Plaintiff’s response to Tanis’ Objections thereto cure the fact that 28 Plaintiff has provided no assurances that Tanis will be afforded compensation in the event that the -5- A RE NT F OX S C HIFF LLP ATTO RNEY S AT LAW DEFENDANT AND CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S MOTION TO STRIKE PLAINTIFF L OS A NGE LE S SMASHMALLOW, LLC’S AFFIDAVIT OF UNDERTAKING 1 preliminary injunction was wrongly issued. Based on the financial representations of Plaintiff 2 during trial, Smashmallow has little to no assets. Plaintiff’s Affidavit is merely signed by a 3 “representative of Smashmallow, LLC,” Caitlyn McDuffee, but McDuffee’s relationship to 4 Smashmallow, LLC and any indication of her ability to pay $250,000.00 on its behalf is absent. 5 Accordingly, based on the Court’s Order, Code of Civil Procedure section 529(a), and the 6 Bonds and Undertaking Law set forth in Code of Civil Procedure sections 995.010 to 997 this Court 7 should strike the Affidavit from the record as it is procedurally and substantively deficient and 8 contain misstatements of the law. 9 IV. CONCLUSION 10 For each of the foregoing reasons, Tanis respectfully requests that the Court grant its Motion 11 to Strike the Affidavit. 12 Dated: December 11, 2023 ARENTFOX SCHIFF LLP 13 14 By: 15 MALCOLM S. MCNEIL LYNN R. FIORENTINO 16 JEFF LEUNG Attorneys for Cross-Complainant 17 TANIS FOOD TEC B.V. 18 19 20 21 22 23 24 25 26 27 28 -6- A RE NT F OX S C HIFF LLP ATTO RNEY S AT LAW DEFENDANT AND CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S MOTION TO STRIKE PLAINTIFF L OS A NGE LE S SMASHMALLOW, LLC’S AFFIDAVIT OF UNDERTAKING 1 Smashmallow, LLC v. Tanis Food Tec B.V. Sonoma County Superior County Case No.: SCV-268477 2 PROOF OF SERVICE 3 I am a citizen of the United States. My business address is ArentFox Schiff LLP, 4 44 Montgomery Street, 38th Floor, San Francisco, California 94104. I am employed in the County of San Francisco where this service occurs. I am over the age of 18 years, and not a party to the 5 within cause. 6 On the date set forth below, according to ordinary business practice, I served the foregoing document(s) described as: 7 DEFENDANT AND CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S NOTICE 8 OF MOTION AND MOTION TO STRIKE 9 (BY FAX) I transmitted via facsimile, from facsimile number 415-757-5500, the document(s) to the person(s) on the attached service list at the fax number(s) set 10 forth therein, on this date before 5:00 p.m. A statement that this transmission was reported as complete and properly issued by the sending fax machine without 11 error is attached to this Proof of Service. 12 (BY E-MAIL) On this date, I personally transmitted the foregoing document(s) via my electronic service address (Natalie.Moore@afslaw.com) to the e-mail 13 address(es) of the person(s) on the attached service list. 14 (BY MAIL) I am readily familiar with my employer’s business practice for collection and processing of correspondence for mailing with the U.S. Postal 15 Service, and that practice is that correspondence is deposited with the U.S. Postal Service the same day as the day of collection in the ordinary course of business. 16 On this date, I placed the document(s) in envelopes addressed to the person(s) on the attached service list and sealed and placed the envelopes for collection and 17 mailing following ordinary business practices. 18 (BY PERSONAL SERVICE) On this date, I caused the document(s) to be 19 personally delivered to the persons(s) on the attached service list. (BY OVERNIGHT DELIVERY) On this date, I placed the documents in 20 envelope(s) addressed to the person(s) on the attached service list, and caused 21 those envelopes to be delivered to an overnight delivery carrier, with delivery fees provided for, for next-business-day delivery to whom it is to be served. 22 (State) I declare under penalty of perjury under the laws of the State of 23 California that the foregoing is true and correct. 24 Executed on December 11, 2023, at San Francisco, California. 25 26 Natalie Moore 27 28 A RE NT F OX S C HIFF LLP -7- ATTO RNEY S AT LAW L OS A NGE L E S DEFENDANT AND CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S MOTION TO STRIKE 1 Smashmallow, LLC v. Tanis Food Tec B.V. Sonoma County Superior County Case No.: SCV-268477 2 3 SERVICE LIST 4 J. Noah Hagey, Esq. Attorneys for Plaintiff 5 David Kwasniewski, Esq. SMASHMALLOW, LLC Robert T. Petraglia, Esq. 6 Shirley Chan, Esq. Ellen Leonida, Esq. 7 BRAUNHAGEY & BORDEN LLP 8 351 California Street, 10th Floor San Francisco, CA 94104 9 Tel.: 415.599.0210 10 Fax: 415.599.0210 11 hagey@braunhagey.com kwasniewski@braunhagey.com 12 petraglia@braunhagey.com chan@braunhagey.com 13 leonida@braunhagey.com yan@braunhagey.com 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A RE NT F OX S C HIFF LLP -8- ATTO RNEY S AT LAW L OS A NGE L E S DEFENDANT AND CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S MOTION TO STRIKE