Preview
MALCOLM S. MCNEIL (SBN 109601)
malcolm.mceneil@afslaw.com
LYNN R. FIORENTINO (SBN 226691)
lynn.fiorentino@afslaw.com
JEFF LEUNG (SBN 310960)
jeff.leung@afslaw.com
ARENTFOX SCHIFF LLP
555 West Fifth Street, 48th Floor
Los Angeles, CA 90013
Telephone: 213.629.7400
Facsimile: 213.629.7401
Attorneys for Defendant and Cross-Complainant
TANIS FOOD TEC B.V.
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 DECLARATION OF LYNN R.
Plaintiff, FIORENTINO IN SUPPORT OF
14 DEFENDANT AND CROSS-
Vv, COMPLAINANT TANIS FOOD TEC
15 B.V.’S NOTICE OF MOTION AND
TANIS FOOD TEC B.V., a Netherlands MOTION OBJECTING TO AND
16 limited liability company; JOHN DOES 1-50, MOVING TO STRIKE PLAINTIFF
inclusive, SMASHMALLOW, LLC’S
17 AFFIDAVITS OF BOND UNDER
Defendant. C.C.P. SECTION 995.010 ET SEQ.
18
19 [Filed concurrently with Notice of Motion
TANIS FOOD TEC B.V., and Motion to Strike and [Proposed]
20 Order]
Cross-Complainant,
21 Trial Court and Department: Dept. 18
Vv, Trial Judge: Judge Christopher Honigsberg
22
SMASHMALLOW, LLC, ROES 1-50, Date:
23 inclusive, Time:
Dept: 18
24 Cross-Defendant. Judge: Hon. Christopher Honigsberg
25 Complaint Filed: May 26, 2021
Trial Date: September 8, 2023
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ARENTFOX SCHIFF LLP
ATTORNEYS ATLAW
LOS ANGELES DECLARATION OF LYNN R. FIORENTINO IN SUPPORT OF TANIS’ NOTICE OF MOTION AND
MOTION OBJECTING TO AND MOVING TO STRIKE PLAINTIFF’S AFFIDAVITS OF BOND
DECLARATION OF LYNN R. FIORENTINO
I, Lynn R. Fiorentino, declare and state as follows:
1 Tam an attorney duly licensed to practice law in the State of California and am a
partner in the law firm of ArentFox Schiff LLP, counsel of record for Defendant and Cross-
Complainant Tanis Food Tec B.V. (“Tanis”). I am familiar with the pleadings, discovery and
depositions in this case. I attended each day of the trial in this matter on behalf of Tanis. This
Declaration is made upon my personal knowledge, and if called upon as a witness I could and
would competently testify to the facts set forth herein. This declaration is submitted in support of
Defendant and Cross-Complainant Tanis Food Tec B.V.’s Motion to Strike Plaintiff Smashmallow,
10 LLC’s Affidavits of Bond Under C.C.P. Section 995.010 et seq.
11 2. On November 22, 2023, Plaintiff filed an insufficient Affidavit of Undertaking
12 signed by a “representative of Smashmallow, LLC” (the “November 22 Undertaking Affidavit”).
13 3 Tanis objected to the November 22nd Undertaking Affidavit, and ultimately filed a
14 Motion to Strike it from the record, including on the basis that testimony at trial established that
15 Smashmallow has little to no assets.
16 4 On December 20, 2023, this Court granted Tanis’ motion on the basis that testimony
17 at trial indicated that Plaintiff is devoid of assets. The Court ordered Plaintiff to file a bond in the
18 amount of $250,000 no later than 5:00 p.m. December 26, 2023. The Court further ordered that the
19 November 22nd Undertaking Affidavit would be stricken as of December 26, 2023 at 5:00 p.m.
20 5 On December 26, 2023, Plaintiff filed two “Affidavit[s] of Bond Under C.C.P.
21 Section 995.010 et seg.” One was signed by Shahir Amin on behalf of both Sonoma Brands and
22 Smashmallow, and the other was signed by Jon Sebastiani in his individual capacity and by Shahir
23 Amin on behalf of Smashmallow. On December 26, 2023, Defendant filed Objections to these
24 original affidavits. True and correct copies of these filings are attached hereto as Exhibits A
25 through C, respectively.
26 6. On December 28, 2023, Plaintiff filed an Amended Affidavit of Bond signed by Jon
27 Sebastiani only and correcting the original’s failure to include Mr. Sebastiani’s residence address.
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ARENTFOX SCHIFF LLP
ATTORNEYS ATLAW
LOS ANGELES DECLARATION OF LYNN R. FIORENTINO IN SUPPORT OF TANIS’ NOTICE OF MOTION AND
MOTION OBJECTING TO AND MOVING TO STRIKE PLAINTIFF’S AFFIDAVITS OF BOND
The Affidavit of Bond signed by Shahir Amin on behalf of Sonoma Brands and Smashmallow and
the Amended Affidavit of Bond signed by Jon Sebastiani only will be referred to collectively as
the “Bond Affidavits.” Plaintiff also filed a Response to Tanis’ Objections to the Bond Affidavits.
True and correct copies of these filings are attached hereto as Exhibits D and E.
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Based on the financial representations of Plaintiff during trial, Smashmallow has
little to no assets. Specifically, on October 10, 2023, during direct examination, Shahir Amin, board
member and fiduciary for Sonoma Brands, the majority investor in Smashmallow, stated that
Smashmallow has “very minimal” assets. A true and correct copy of this direct examination from
the Transcript of Proceedings, vol. 13, p. 2250, lines 12-23 is attached hereto as Exhibit F.
10 8 Jon Sebastiani and Shahir Amin served as key witnesses for Plaintiff at trial and
11 presented evidence that they, along with Sonoma Brands Capital, played significant roles in the
12 events underlying the claims and defenses in this action.
13 I declare under penalty of perjury under the laws of the State of California and that the
14 foregoing is true and correct.
15 Executed on January 9, 2023, at San Francisco, California.
16
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17 a ata Ye h ‘i af in Lg
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- Lynn R. Fiorentino
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ARENTFOX SCHIFF LLP
ATTORNEYS ATLAW
LOS ANGELES DECLARATION OF LYNN R. FIORENTINO IN SUPPORT OF TANIS’ NOTICE OF MOTION AND
MOTION OBJECTING TO AND MOVING TO STRIKE PLAINTIFF’S AFFIDAVITS OF BOND
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EXHIBITC
MALCOLM S. MCNEIL (SBN 109601) ELECTRONICALLY FILED
malcolm.mceneil@afslaw.com Superior Court of California
LYNN R. FIORENTINO (SBN 226691) County of Sonoma
lynn.fiorentino@afslaw.com 12/26/2023 8:56 PM
JEFF LEUNG (SBN 310960) By: Alex Fleckenstein, Deputy Clerk
jeff.leung@afslaw.com
ARENTFOX SCHIFF LLP
555 West Fifth Street, 48th Floor
Los Angeles, CA 90013
Telephone: 213.629.7400
Facsimile: 213.629.7401
Attorneys for Defendant and Cross-Complainant
TANIS FOOD TEC B.V.
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/ CROSS-
Plaintiff, COMPLAINANT TANIS FOOD TEC
14 B.V.’S OBEJCTIONS TO
Vv, PLAINTIFF/CROSS-DEFENDANT
15 SMASHMALLOW, LLC’S
TANIS FOOD TEC B.V., a Netherlands AFFIDAVITS OF BOND UNDER C.C.P.
16 limited liability company; JOHN DOES 1-50, SECTION 995.010 ET SEQ.
inclusive,
17
Defendant.
18 Judge: The Hon. Christopher
M. Honigsberg
19 Department: 18
TANIS FOOD TEC B.V.,
20 Complaint Filed: May 26, 2021
Cross-Complainant,
Trial Date: September 8, 2023
21 Vv,
22 SMASHMALLOW, LLC, ROES 1-50,
inclusive,
23
Cross-Defendant.
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ARENTFOX SCHIFF LLP
ATTORNEYSAT Law DEFENDANT/ CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S OBEJCTIONS TO SMASHMALLOW,
LOS ANGELES LLC’S AFFIDAVITS OF BOND
TO THE HONORABLE COURT, PLAINITFF AND ITS ATTORNEYS OF
RECORD:
PLEASE TAKE NOTICE that Defendant Tanis Food Tec, B.V. (“Tanis”) hereby objects
to the two purported Affidavits of Bond Under C.C.P. Section 995.010 et seq. signed by (1) Jon
Sebastiani in his individual capacity and by Shahir Amin on behalf of Smashmallow, LLC
(“Smashmallow” or “Plaintiff’) and (2) by Shahir Amin on behalf of Sonoma Brands Capital
(“Sonoma Brands”) and Smashmallow (the “Bond Affidavits”) and filed and served by Plaintiff
on December 26, 2023 on the following grounds:
1 The Bond Affidavits are procedurally deficient. On November 17, 2023, the Court
10 issued an Order on Submitted Matter Re: Plaintiff's Motion for Post-Judgment Discovery and
11 Plaintiff's Motion for Preliminary Injunction (the “Preliminary Injunction Order”) granting the
12 Preliminary Injunction “in part, conditioned on Plaintiffs posting an undertaking of
13 $250,000.” (Order, p. 5:16-16)(emphasis added). It is well-established that “... the purpose of
14 requiring security is to afford compensation to the party wrongly enjoined or restrained.” City of
15 South San Francisco v. Cypress Lawn Cemetery Assn. (1992) 11 Cal. App. 4th 916, 922. See also
16 Oksner v. Superior Ct. In & For Los Angeles Cnty. (1964) 229 Cal. App. 2d 672, 687 (“[w]ithout
17 [a] bond a preliminary injunction is a nullity.”)
18 2. On November 22, 2023, Plaintiff filed an insufficient Affidavit of Undertaking
19 signed by a “representative of Smashmallow, LLC.” (the “November 22 Undertaking Affidavit”).
20 3 Tanis objected to the November 22 Undertaking Affidavit, and ultimately filed a
21 Motion to Strike it from the record, including on the basis that testimony at trial established that
22 Smashmallow has little to no assets.
23 4 On December 20, 2023, this Court granted Tanis’ motion on the basis that testimony
24 at trial indicated that Plaintiffis devoid of assets. The Court ordered Plaintiff to file a bond in the
25 amount of $250,000 no later than 5:00 p.m. December 26, 2023 (the “December 20, 2023 Order”).
26 5 On December 26, 2023, Plaintiff filed two “Affidavit[s] of Bond Under C.C.P.
27 Section 995.010 et seq.” One is signed by Shahir Amin on behalf of both Sonoma Brands and
28 Smashmallow, and the other is signed by Jon Sepastiani in his individual capacity and by Shahir
ARENTFOX SCHIFF LLP
ATTORNEYSAT Law DEFENDANT/ CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S OBEJCTIONS TO SMASHMALLOW,
LOS ANGELES LLC'S AFFIDAVITS OF BOND
Amin on behalf of Smashmallow. These affidavits will be referred to collectively as the “Bond
Affidavits.” The Court further ordered the Court ordered that the November 22 Undertaking
Affidavit would be stricken as of December 26, 2023 at 5:00 p.m.
6. The Bond Affidavits are also substantively defective as they fail to comply with the
requirements of the Bond and Undertaking Law, C.C.P. Section 995.010 et seq. Specifically, (1)
the Affidavit signed by Mr. Sebastiani and Mr. Amin does not include Mr. Sebastiani’s residence
address as required by C.C.P. section 995.220(b); (2) neither Affidavit includes the information
required under C.C.P. section 995.520(c) as the bond exceeds five thousand dollars; (3) rather than
filing a bond accompanied by affidavits of qualifications for each surety, as contemplated by C.C.P.
10 section 995.520, Plaintiff filed only the Affidavits; (4) the Affidavits are all signed by Plaintiff in
11 violation of C.C.P. section 995.190; and (5) the Affidavits are executed by the principal as both
12 Mr. Sebastiani and Sonoma Brands are alter egos of Smashmallow, when an undertaking is to be
13 executed by the sureties alone under C.C.P. sections 995.190, 995.510, and 995.170.
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14 Plaintiff failed to post a bond, as required under Code of Civil Procedure section
15 529(a) and the Bond and Undertaking Law, Code of Civil Procedure sections 995.010 et seq.
16 Based on the Court’s Preliminary Injunction Order, the Court’s Undertaking Order, Code
17 of Civil Procedure section 529(a), the Bond and Undertaking Law under Code of Civil Procedure
18 sections 995.010 et seqg., and the foregoing objections, the Preliminary Injunction is no longer in
19 effect.
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Dated: December 26, 2023 ARENTFOX SCHIFF LLP
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By:
A,7 é Ate
23 MALCOLM Ss. MCNEIL
LYNN R. FIORENTINO
24 JEFF LEUNG
Attorneys for Cross-Complainant
25 TANIS FOOD TEC B.V.
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ARENTFOX SCHIFF LLP
ATTORNEYSAT Law DEFENDANT/ CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S OBEJCTIONS TO SMASHMALLOW,
LOS ANGELES LLC'S AFFIDAVITS OF BOND
Smashmallow, LLC v. Tanis Food Tec B.V.
Sonoma County Superior County Case No.: SCV-268477
PROOF OF SERVICE
I am a citizen of the United States. My business address is ArentFox Schiff LLP,
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
within cause.
On the date set forth below, according to ordinary business practice, I served the foregoing
document(s) described as:
DEFENDANT/ CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S
OBEJCTIONS TO SMASHMALLOW, LLC’S AFFIDAVITS OF BOND UNDER
C.C.P. SECTION 995.010 ET SEQ.
10 O (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
forth therein, on this date before 5:00 p.m. A statement that this transmission was
11 reported as complete and properly issued by the sending fax machine without
error is attached to this Proof of Service.
12
(BY E-MAIL) On this date, I personally transmitted the foregoing document(s)
13
via my electronic service address (Natalie. Moore@afslaw.com) to the e-mail
address(es) of the person(s) on the attached service list.
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15 (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
16 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.
17 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
18 mailing following ordinary business practices.
19 (BY PERSONAL SERVICE) On this date, I caused the document(s) to be
personally delivered to the persons(s) on the attached service list.
20
(BY OVERNIGHT DELIVERY) On this date, I placed the documents in
21 envelope(s) addressed to the person(s) on the attached service list, and caused
those envelopes to be delivered to an overnight delivery carrier, with delivery
22 fees provided for, for next-business-day delivery to whom it is to be served.
23 (State) I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
24
Executed on December 26, 2023, at San Francisco, California. 4
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27 Natall ¢Moore
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ARENTFOX SCHIFF LLP
ATTORNEYSAT Law DEFENDANT/ CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S OBEJCTIONS TO SMASHMALLOW,
LOS ANGELES LLC’S AFFIDAVITS OF BOND
Smashmallow, LLC v. Tanis Food Tec B.V.
Sonoma County Superior County Case No.: SCV-268477
SERVICE LIST
J. Noah Hagey, Esq. Attorneys for Plaintiff
David Kwasniewski, Esq. SMASHMALLOW, LLC
Robert T. Petraglia, Esq.
Shirley Chan, Esq.
Ellen Leonida, Esq.
BRAUNHAGEY & BORDEN LLP
351 California Street, 10th Floor
San Francisco, CA 94104
Tel.: 415.599.0210
10 Fax: 415.599.0210
hagey@braunhagey.com
11
kwasniewski@braunhagey.com
12 petraglia@braunhagey.com
chan@braunhagey.com
13 leonida@braunhagey.com
yan@braunhagey.com
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ARENTFOX SCHIFF LLP
ATTORNEYSAT Law DEFENDANT/ CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S OBEJCTIONS TO SMASHMALLOW,
LOS ANGELES LLC’S AFFIDAVITS OF BOND
EXHIBIT D
1 J. Noah Hagey, Esq. (SBN: 262331)
hagey@bi raunhagey.com
ey.
Ellen V. Leonida, Esq. (SBN: 184194)
leonida@braunhagey.com
Davi . Kwasnlewskl, sq. (SBN: 281985)
vasniewski@braunhagey-com
kwasniewski Jbraunhagey.com
Robert T. Petraglia, Esq. (S 1 264849)
etraglia@braunhagey.com
BRAUNHAGEY & BORDEN LLP
351 California Street, 10th Floor
San Francisco, CA 94104
Telephone: (415) 599-0210
Facsimile: (415) 276-1808
Shirley M. Chan, Esq. (pro hac vice)
sn@braunhagey-com
chan@braunhagey.com
BRAUNHAGEY & BORDEN LLP
118 W 22nd Street, 12th Floor
10 New York, NY 10011
Telephone: (646) 829-9403
11 Facsimile: (646) 403-4089
12 Attorneys for Plaintiff/Cross-Defendant
SMASHMALLOW, LLC
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14 SUPERIOR COURT OF THE STATE OF CALIFORNIA
15 COUNTY OF SONOMA
16 Case No. SCV-268477
SMASHMALLOW, LLC, a Delaware limited
17 liability company, and DOES 1-10, inclusive, AMENDED AFFIDAVIT OF BOND
UNDER C.C.P. SECTION 995.010 ET SEQ.
18 Plaintiff,
19 Vv.
20 TANIS FOOD TEC B.V., a Netherlands
limited liability company; JOHN DOES 1-50,
21 inclusive,
22 Defendants.
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Case No. SCV-268477
AMENDED AFFIDAVIT OF BOND UNDER C.C.P. SECTION 995.010 ET SEQ.
1 TANIS FOOD TEC B.V.,
2 Cross-Complainant,
3 Vv.
4] SMASHMALLOW, LLC; DOES 1-10,
inclusive.
Cross-Defendant.
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Case No. SCV-268477
AMENDED AFFIDAVIT OF BOND UNDER C-C-P. SECTION 995.010 ET SEQ.
WHEREAS, the above-named SMASHMALLOW, LLC desires to give a bond of
$250,000 for Preliminary Injunction as provided in California Civil Procedure section 995.010 et
seq.
WHEREAS, J, Jon Sebastiani, the undersigned, residing at 3948 Lovall Valley Loop Road,
Sonoma, CA 95476, whose occupation is Founder and Managing Partner of Sonoma Brands
Capital, and whose business address is 117 W. Napa St., Suite C, Sonoma, CA 95476, and whose
name is subscribed as a surety of the above bond, being severally duly sworn, state:
1 I am a resident in and an owner of real property in the State of California.
2 I am worth the sum specified in the above bond, $250,000, in real or personal
10 property, or both, in this state over and above all debts and liabilities, exclusive of property exempt
ll from enforcement of a money judgment.
12 3 I am the owner of real and personal property in California which includes $250,000
13 in cash unencumbered by any lien or other impediment.
14 NOW, THEREFORE, the undersigned surety, does hereby obligate himself, jointly and
15 severally, to TANIS FOOD TEC B.V. under said statyto: ligations, in the sum of $ 250,000.
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AMENDED AFFIDAVIT OF BOND UNDER C.C.P. SECTION 995.010 ET SEQ.
ACKNOWLEDGMENT
ite
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Placen
_)
On 12 | 2S La D> 2 __ before me, Stacey M. Estrada, Notary Public
(insert name and title of the officer)
personally appeared Ton Sehkashan/ ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/sheAkey executed the same in
his/heritseir authorized capacity(ies), and that by his/hertheir signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
| certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
Cea
WITNESS my hand and official seal. ne STACEY M, ESTRADA,
ate a COMM. # 2461232
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F NOTARY PUBLIC -CAJFORNNA
oa SIERRA COUNTY
sont SE (Seal SPD
EXHIBIT E
1 J. Noah Hagey, Esq. (SBN: 262331)
hagey@braunhagey.com
Ellen V. Leonida, Esq. (SBN: 184194)
leonida@braunhagey.com
David H. Kwasniewski, Esq. (SBN: 281985)
kwasniewski@braunhagey.com
Robert T. Petraglia, Esq. (SBN: 264849)
petraglia@braunhagey.com
BRAUNHAGEY & BORDEN LLP
351 California Street, 10th Floor
San Francisco, CA 94104
Telephone: (415) 599-0210
Facsimile: (415) 276-1808
Shirley M. Chan, Esq. (pro hac vice)
chan@pbraunhagey.com
BRAUNHAGEY & BORDEN LLP
118 W 22nd Street, 12th Floor
10 New York, NY 10011
Telephone: (646) 829-9403
11 Facsimile: (646) 403-4089
12 Attorneys for Plaintiff/Cross-Defendant
SMASHMALLOW, LLC
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14 SUPERIOR COURT OF THE STATE OF CALIFORNIA
15 COUNTY OF SONOMA
16 Case No. SCV-268477
SMASHMALLOW, LLC, a Delaware limited
17 liability company, and DOES 1-10, inclusive, RESPONSE TO DEFENDANT/CROSS-
COMPLAINANT TANIS FOOD TEC
18 Plaintiff, B.V.’S OBJECTION TO
SMASHMALLOW, LLC’S AFFIDAVITS
19 Vv. OF BOND UNDER C.C.P. SECTION
995.010 ET SEQ.
20 TANIS FOOD TEC B.V., a Netherlands
limited liability company; JOHN DOES 1-50, Judge: Hon. Christopher M.
21 inclusive, Honigsberg
Courtroom:
22 Defendants.
Complaint Filed: May 26, 2021
23 Trial: September 8, 2023
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Case No. SCV-268477
RESPONSE TO DEFENDANT’S OBJECTION TO AFFIDAVITS OF BOND
1 TANIS FOOD TEC B.V.,
2 Cross-Complainant,
3 Vv.
4 SMASHMALLOW, LLC; DOES 1-10,
inclusive.
Cross-Defendant.
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Case No. SCV-268477
RESPONSE TO DEFENDANT’S OBJECTION TO AFFIDAVITS OF BOND
Plaintiff Smashmallow, LLC (“Smashmallow’) respectfully submits this response to
Defendant’s objection to Smashmallow’s affidavits of bond under Code of Civil Procedure Section
995.010 et seq.
Defendant’s assertion (Obj. § 6) that the affidavits are substantively defective lack merit.
Pursuant to the Court’s order at the December 20, 2023 hearing and Code of Civil Procedure
section 995.010 et seq., Smashmallow filed two affidavits in support of its bond on December 26,
2023. The bonds were executed by Smashmallow and sureties Jon Sebastiani and Sonoma Brands
Capital. On December 28, 2023, Smashmallow also filed an amended affidavit of bond, executed
by Mr. Sebastiani, to include Mr. Sebastiani’s residence address pursuant to section 995.520(b).
10 Together, the bond affidavits comply with section 995.520(c) because both sureties confirmed that
11 they are the owner of real and personal property in California, including $250,000 in cash
12 unencumbered by any “lien” or “other impediment.” Civ. Proc. Code § 995.520(c). The bond
13 affidavits also contain language compliant with sections 995.320 and 995.330 (regarding contents
14 and form of bond) in addition to section 995.520 (regarding contents of surety’s affidavit of
15 qualifications). Further, Defendant claims that the bond affidavits are signed by the principal
16 (Smashmallow) in violation of section 995.190. But as Defendant admits, that statute applies to
17 undertakings, not bonds which are executed by both the principal and surety. Civ. Proc. Code
18 § 995.140(a)(1) (a bond is “executed by both the principal and sureties”).
19 Defendant’s claim that “the Preliminary Injunction is no longer in effect” (Obj. at 3) is
20 incorrect. Smashmallow’s bond affidavits are compliant with the Court’s order that Smashmallow
21 file a bond in the amount of $250,000, and are sufficient for the Court’s issuance ofa preliminary
22 injunction prohibiting Defendant from making any transfers of assets outside the normal course of
23 business.
24 //
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1 Case No. SCV-268477
RESPONSE TO DEFENDANT’S OBJECTION TO AFFIDAVITS OF BOND
1 || Dated: December 28, 2023 Respectfully submitted,
2 BRAUNHAGEY & BORDEN LLP
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A8
By:
David Ski
Attorneys for Plaintiff/Cross-Defendant
Smashmallow, LLC
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RESPONSE TO DEFENDANT’S OBJECTION TO AFFIDAVITS OF BOND
EXHIBIT F
TRANSCRIPTOF PROCEEDINGS Vol. 13 October
10, 2023
SMASHMALLOW vs TANIS FOOD TEC B.V. 2215
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SONOMA
BEFORE THE HONORABLE CHRISTOPHER HONIGSBERG
DEPARTMENT 18
SMASHMALLOW, LLC, a Delaware
limited liability company, and
DOES 1-10, inclusive,
Plaintiff,
vs. Case No.: SCV-268477
TANIS FOOD TEC B.V., a Pages: 2215 - 2413
10 Netherlands limited liability Volume: 13
company; JOHN DOES 1-50,
11 inclusive,
12 Defendants.
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ee ee ee ee
13 AND RELATED CROSS-ACTION.
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ee ee ee ee
14
15 Stenographic Reporter's Transcript of Proceedings
16 Tuesday, October 10, 2023
17
18
19
20
21 Stenographically reported by:
LORRIE L. MARCHANT, RMR, CRR, CCRR, CRC
22 California CSR No. 10523
Washington CSR No. 3318
23 Oregon CSR No. 19-0458
Texas CSR No. 11318
24
Job No.: 310380295
25 California Firm Registration No.: 29
ZESQ UIRE
DEPOSITION SOLUTIONS
800.211.DEPO (3376)
EsquireS olutions.com
TRANSCRIPT OF PROCEEDINGS Vol. 13 October
10, 2023
SMASHMALLOW vs TANIS FOOD TEC B.V. 2250
THE COURT: Okay. Just a minute.
Okay. Go ahead.
BY MR. KWASNIEWSKI:
Q Do you recognize the people in this
photograph, Mr. Amin?
A I do.
Q Who are they?
A This was the Smash team at its best and
brightest.
10 Q Any of them work for Smashmallow now?
11 A Unfortunately, no.
24 Q So, Mr. Amin, why not just write
25 Smashmallow off as a loss?
Z ESQUIRE DEPOSITION SOLUTIONS
800.211.DEPO (3376)
EsquireS olutions.com
TRANSCRIPTOF PROCEEDINGS Vol. 13 October
10, 2023
SMASHMALLOW vs TANIS FOOD TEC B.V. 2413
State of California )
County of Sonoma )
I, Lorrie L. Marchant, Court Reporter at the
Superior Court of California, County of Sonoma, do
hereby certify:
That I was present at the time of the above
proceedings;
That I took down in machine shorthand notes, to
the best of my ability, all proceedings had and
10 testimony given;
11 That I thereafter transcribed said shorthand notes
12 with the aid of a computer;
13 That the above and foregoing is a full, true and
14 substantially accurate record of said shorthand notes,
15 and a full, true and correct transcript of all
16 proceedings had and testimony taken;
17 That I am not a part to the action or related to a
18 party or counsel;
19 That I have no financial or other interest in the
20 outcome of the action.
21 Dated: October 31, 2023.
22
Por] Waschawte
23
24
Lorrie CL. Marchant, CSR No. 10523
25
ZESQ UIRE
DEPOSITION SOLUTIONS
800.211.DEPO (3376)
EsquireS olutions.com
Smashmallow, LLC v. Tanis Food Tec B.V.
Sonoma County Superior County Case No.: SCV-268477
PROOF OF SERVICE
I am a citizen of the United States. My business address is ArentFox Schiff LLP,
44 Montgomery Street, 38th Floor, San Francisco, California 94104. Iam 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
within cause.
On the date set forth below, according to ordinary business practice, I served the foregoing
document(s) described as:
DECLARATION OF LYNN R. FIORENTINO IN SUPPORT OF DEFENDANT AND
CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S NOTICE OF MOTION AND
MOTION OBJECTING TO AND MOVING TO STRIKE PLAINTIFF
SMAHSMALLOW, LLC’S AFFIDAVITS OF BOND UNDER C.C.P.
SECTION 995.010 ET SEQ.
10 (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
11 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
12 error is attached to this Proof of Service.
13
(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
14
address(es) of the person(s) on the attached service list.
15
(BY MAIL) I am readily familiar with my employer’s business practice for
16 collection and processing of correspondence for mailing with the U.S. Postal
Service, and that practice is that correspondence is deposited with the U.S. Postal
17 Service the same day as the day of collection in the ordinary course of business.
On this date, I placed the document(s) in envelopes addressed to the person(s) on
18 the attached service list and sealed and placed the envelopes for collection and
mailing following ordinary business practices.
19
(BY PERSONAL SERVICE) On this date, I caused the document(s) to be
20 personally delivered to the persons(s) on the attached service list.
21 (BY OVERNIGHT DELIVERY) On this date, I placed the documents in
envelope(s) addressed to the person(s) on the attached service list, and caused
22 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.
23
(State) I declare under penalty of perjury under the laws of the State of
24 California that the foregoing is true and correct.
25 Executed on January 9, 2024, at San Francisco, California,
/ }
26
27
Natalie Moore
28
ARENTFOX SCHIFF LLP
ATTORNEYS
AT LAW DECLARATION OF LYNN R. FIORENTINO IN SUPPORT OF TANIS’ NOTICE OF MOTION AND
LOS ANGELES
MOTION OBJECTING TO AND MOVING TO STRIKE PLAINTIFF’S AFFIDAVITS OF BOND
Smashmallow, LLC v. Tanis Food Tec B.V.
Sonoma County Superior County Case No.: SCV-268477
SERVICE LIST
J. Noah Hagey, Esq. Attorneys for Plaintiff
David Kwasniewski, Esq. SMASHMALLOW, LLC
Robert T. Petraglia, Esq.
Shirley Chan, Esq.
Ellen Leonida, Esq.
BRAUNHAGEY & BORDEN LLP
351 California Street, 10th Floor
San Francisco, CA 94104
Tel.: 415.599.0210
10 Fax: 415.599.0210
hagey@braunhagey.com
11
Preview
MALCOLM S. MCNEIL (SBN 109601) malcolm.mceneil@afslaw.com LYNN R. FIORENTINO (SBN 226691) lynn.fiorentino@afslaw.com JEFF LEUNG (SBN 310960) jeff.leung@afslaw.com ARENTFOX SCHIFF LLP 555 West Fifth Street, 48th Floor Los Angeles, CA 90013 Telephone: 213.629.7400 Facsimile: 213.629.7401 Attorneys for Defendant and Cross-Complainant TANIS FOOD TEC B.V. 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 DECLARATION OF LYNN R. Plaintiff, FIORENTINO IN SUPPORT OF 14 DEFENDANT AND CROSS- Vv, COMPLAINANT TANIS FOOD TEC 15 B.V.’S NOTICE OF MOTION AND TANIS FOOD TEC B.V., a Netherlands MOTION OBJECTING TO AND 16 limited liability company; JOHN DOES 1-50, MOVING TO STRIKE PLAINTIFF inclusive, SMASHMALLOW, LLC’S 17 AFFIDAVITS OF BOND UNDER Defendant. C.C.P. SECTION 995.010 ET SEQ. 18 19 [Filed concurrently with Notice of Motion TANIS FOOD TEC B.V., and Motion to Strike and [Proposed] 20 Order] Cross-Complainant, 21 Trial Court and Department: Dept. 18 Vv, Trial Judge: Judge Christopher Honigsberg 22 SMASHMALLOW, LLC, ROES 1-50, Date: 23 inclusive, Time: Dept: 18 24 Cross-Defendant. Judge: Hon. Christopher Honigsberg 25 Complaint Filed: May 26, 2021 Trial Date: September 8, 2023 26 27 28 ARENTFOX SCHIFF LLP ATTORNEYS ATLAW LOS ANGELES DECLARATION OF LYNN R. FIORENTINO IN SUPPORT OF TANIS’ NOTICE OF MOTION AND MOTION OBJECTING TO AND MOVING TO STRIKE PLAINTIFF’S AFFIDAVITS OF BOND DECLARATION OF LYNN R. FIORENTINO I, Lynn R. Fiorentino, declare and state as follows: 1 Tam an attorney duly licensed to practice law in the State of California and am a partner in the law firm of ArentFox Schiff LLP, counsel of record for Defendant and Cross- Complainant Tanis Food Tec B.V. (“Tanis”). I am familiar with the pleadings, discovery and depositions in this case. I attended each day of the trial in this matter on behalf of Tanis. This Declaration is made upon my personal knowledge, and if called upon as a witness I could and would competently testify to the facts set forth herein. This declaration is submitted in support of Defendant and Cross-Complainant Tanis Food Tec B.V.’s Motion to Strike Plaintiff Smashmallow, 10 LLC’s Affidavits of Bond Under C.C.P. Section 995.010 et seq. 11 2. On November 22, 2023, Plaintiff filed an insufficient Affidavit of Undertaking 12 signed by a “representative of Smashmallow, LLC” (the “November 22 Undertaking Affidavit”). 13 3 Tanis objected to the November 22nd Undertaking Affidavit, and ultimately filed a 14 Motion to Strike it from the record, including on the basis that testimony at trial established that 15 Smashmallow has little to no assets. 16 4 On December 20, 2023, this Court granted Tanis’ motion on the basis that testimony 17 at trial indicated that Plaintiff is devoid of assets. The Court ordered Plaintiff to file a bond in the 18 amount of $250,000 no later than 5:00 p.m. December 26, 2023. The Court further ordered that the 19 November 22nd Undertaking Affidavit would be stricken as of December 26, 2023 at 5:00 p.m. 20 5 On December 26, 2023, Plaintiff filed two “Affidavit[s] of Bond Under C.C.P. 21 Section 995.010 et seg.” One was signed by Shahir Amin on behalf of both Sonoma Brands and 22 Smashmallow, and the other was signed by Jon Sebastiani in his individual capacity and by Shahir 23 Amin on behalf of Smashmallow. On December 26, 2023, Defendant filed Objections to these 24 original affidavits. True and correct copies of these filings are attached hereto as Exhibits A 25 through C, respectively. 26 6. On December 28, 2023, Plaintiff filed an Amended Affidavit of Bond signed by Jon 27 Sebastiani only and correcting the original’s failure to include Mr. Sebastiani’s residence address. 28 -2- ARENTFOX SCHIFF LLP ATTORNEYS ATLAW LOS ANGELES DECLARATION OF LYNN R. FIORENTINO IN SUPPORT OF TANIS’ NOTICE OF MOTION AND MOTION OBJECTING TO AND MOVING TO STRIKE PLAINTIFF’S AFFIDAVITS OF BOND The Affidavit of Bond signed by Shahir Amin on behalf of Sonoma Brands and Smashmallow and the Amended Affidavit of Bond signed by Jon Sebastiani only will be referred to collectively as the “Bond Affidavits.” Plaintiff also filed a Response to Tanis’ Objections to the Bond Affidavits. True and correct copies of these filings are attached hereto as Exhibits D and E. 7 Based on the financial representations of Plaintiff during trial, Smashmallow has little to no assets. Specifically, on October 10, 2023, during direct examination, Shahir Amin, board member and fiduciary for Sonoma Brands, the majority investor in Smashmallow, stated that Smashmallow has “very minimal” assets. A true and correct copy of this direct examination from the Transcript of Proceedings, vol. 13, p. 2250, lines 12-23 is attached hereto as Exhibit F. 10 8 Jon Sebastiani and Shahir Amin served as key witnesses for Plaintiff at trial and 11 presented evidence that they, along with Sonoma Brands Capital, played significant roles in the 12 events underlying the claims and defenses in this action. 13 I declare under penalty of perjury under the laws of the State of California and that the 14 foregoing is true and correct. 15 Executed on January 9, 2023, at San Francisco, California. 16 é a 17 a ata Ye h ‘i af in Lg at Le - Lynn R. Fiorentino 18 19 20 21 22 23 24 25 26 27 28 -3- ARENTFOX SCHIFF LLP ATTORNEYS ATLAW LOS ANGELES DECLARATION OF LYNN R. FIORENTINO IN SUPPORT OF TANIS’ NOTICE OF MOTION AND MOTION OBJECTING TO AND MOVING TO STRIKE PLAINTIFF’S AFFIDAVITS OF BOND EXHIBITA @ gy @. gy pg @ gy gy pubes = r Ear TT Te ps SSeS wut aS —— ee Ri a ed eae EXHIBIT B @ £ Vv —@G_8y_ Hee Sees eT ee oth ee Bere eeen F A aot Sr _ Berl a rater TSE : Ser —_ a } (ce herd ey oe 2 AArm 1 wee ican Sad EXHIBITC MALCOLM S. MCNEIL (SBN 109601) ELECTRONICALLY FILED malcolm.mceneil@afslaw.com Superior Court of California LYNN R. FIORENTINO (SBN 226691) County of Sonoma lynn.fiorentino@afslaw.com 12/26/2023 8:56 PM JEFF LEUNG (SBN 310960) By: Alex Fleckenstein, Deputy Clerk jeff.leung@afslaw.com ARENTFOX SCHIFF LLP 555 West Fifth Street, 48th Floor Los Angeles, CA 90013 Telephone: 213.629.7400 Facsimile: 213.629.7401 Attorneys for Defendant and Cross-Complainant TANIS FOOD TEC B.V. 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/ CROSS- Plaintiff, COMPLAINANT TANIS FOOD TEC 14 B.V.’S OBEJCTIONS TO Vv, PLAINTIFF/CROSS-DEFENDANT 15 SMASHMALLOW, LLC’S TANIS FOOD TEC B.V., a Netherlands AFFIDAVITS OF BOND UNDER C.C.P. 16 limited liability company; JOHN DOES 1-50, SECTION 995.010 ET SEQ. inclusive, 17 Defendant. 18 Judge: The Hon. Christopher M. Honigsberg 19 Department: 18 TANIS FOOD TEC B.V., 20 Complaint Filed: May 26, 2021 Cross-Complainant, Trial Date: September 8, 2023 21 Vv, 22 SMASHMALLOW, LLC, ROES 1-50, inclusive, 23 Cross-Defendant. 24 25 26 27 28 -1- ARENTFOX SCHIFF LLP ATTORNEYSAT Law DEFENDANT/ CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S OBEJCTIONS TO SMASHMALLOW, LOS ANGELES LLC’S AFFIDAVITS OF BOND TO THE HONORABLE COURT, PLAINITFF AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Defendant Tanis Food Tec, B.V. (“Tanis”) hereby objects to the two purported Affidavits of Bond Under C.C.P. Section 995.010 et seq. signed by (1) Jon Sebastiani in his individual capacity and by Shahir Amin on behalf of Smashmallow, LLC (“Smashmallow” or “Plaintiff’) and (2) by Shahir Amin on behalf of Sonoma Brands Capital (“Sonoma Brands”) and Smashmallow (the “Bond Affidavits”) and filed and served by Plaintiff on December 26, 2023 on the following grounds: 1 The Bond Affidavits are procedurally deficient. On November 17, 2023, the Court 10 issued an Order on Submitted Matter Re: Plaintiff's Motion for Post-Judgment Discovery and 11 Plaintiff's Motion for Preliminary Injunction (the “Preliminary Injunction Order”) granting the 12 Preliminary Injunction “in part, conditioned on Plaintiffs posting an undertaking of 13 $250,000.” (Order, p. 5:16-16)(emphasis added). It is well-established that “... the purpose of 14 requiring security is to afford compensation to the party wrongly enjoined or restrained.” City of 15 South San Francisco v. Cypress Lawn Cemetery Assn. (1992) 11 Cal. App. 4th 916, 922. See also 16 Oksner v. Superior Ct. In & For Los Angeles Cnty. (1964) 229 Cal. App. 2d 672, 687 (“[w]ithout 17 [a] bond a preliminary injunction is a nullity.”) 18 2. On November 22, 2023, Plaintiff filed an insufficient Affidavit of Undertaking 19 signed by a “representative of Smashmallow, LLC.” (the “November 22 Undertaking Affidavit”). 20 3 Tanis objected to the November 22 Undertaking Affidavit, and ultimately filed a 21 Motion to Strike it from the record, including on the basis that testimony at trial established that 22 Smashmallow has little to no assets. 23 4 On December 20, 2023, this Court granted Tanis’ motion on the basis that testimony 24 at trial indicated that Plaintiffis devoid of assets. The Court ordered Plaintiff to file a bond in the 25 amount of $250,000 no later than 5:00 p.m. December 26, 2023 (the “December 20, 2023 Order”). 26 5 On December 26, 2023, Plaintiff filed two “Affidavit[s] of Bond Under C.C.P. 27 Section 995.010 et seq.” One is signed by Shahir Amin on behalf of both Sonoma Brands and 28 Smashmallow, and the other is signed by Jon Sepastiani in his individual capacity and by Shahir ARENTFOX SCHIFF LLP ATTORNEYSAT Law DEFENDANT/ CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S OBEJCTIONS TO SMASHMALLOW, LOS ANGELES LLC'S AFFIDAVITS OF BOND Amin on behalf of Smashmallow. These affidavits will be referred to collectively as the “Bond Affidavits.” The Court further ordered the Court ordered that the November 22 Undertaking Affidavit would be stricken as of December 26, 2023 at 5:00 p.m. 6. The Bond Affidavits are also substantively defective as they fail to comply with the requirements of the Bond and Undertaking Law, C.C.P. Section 995.010 et seq. Specifically, (1) the Affidavit signed by Mr. Sebastiani and Mr. Amin does not include Mr. Sebastiani’s residence address as required by C.C.P. section 995.220(b); (2) neither Affidavit includes the information required under C.C.P. section 995.520(c) as the bond exceeds five thousand dollars; (3) rather than filing a bond accompanied by affidavits of qualifications for each surety, as contemplated by C.C.P. 10 section 995.520, Plaintiff filed only the Affidavits; (4) the Affidavits are all signed by Plaintiff in 11 violation of C.C.P. section 995.190; and (5) the Affidavits are executed by the principal as both 12 Mr. Sebastiani and Sonoma Brands are alter egos of Smashmallow, when an undertaking is to be 13 executed by the sureties alone under C.C.P. sections 995.190, 995.510, and 995.170. 7 14 Plaintiff failed to post a bond, as required under Code of Civil Procedure section 15 529(a) and the Bond and Undertaking Law, Code of Civil Procedure sections 995.010 et seq. 16 Based on the Court’s Preliminary Injunction Order, the Court’s Undertaking Order, Code 17 of Civil Procedure section 529(a), the Bond and Undertaking Law under Code of Civil Procedure 18 sections 995.010 et seqg., and the foregoing objections, the Preliminary Injunction is no longer in 19 effect. 20 Dated: December 26, 2023 ARENTFOX SCHIFF LLP 2 22 £ By: A,7 é Ate 23 MALCOLM Ss. MCNEIL LYNN R. FIORENTINO 24 JEFF LEUNG Attorneys for Cross-Complainant 25 TANIS FOOD TEC B.V. 26 27 28 -3- ARENTFOX SCHIFF LLP ATTORNEYSAT Law DEFENDANT/ CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S OBEJCTIONS TO SMASHMALLOW, LOS ANGELES LLC'S AFFIDAVITS OF BOND Smashmallow, LLC v. Tanis Food Tec B.V. Sonoma County Superior County Case No.: SCV-268477 PROOF OF SERVICE I am a citizen of the United States. My business address is ArentFox Schiff LLP, 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 within cause. On the date set forth below, according to ordinary business practice, I served the foregoing document(s) described as: DEFENDANT/ CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S OBEJCTIONS TO SMASHMALLOW, LLC’S AFFIDAVITS OF BOND UNDER C.C.P. SECTION 995.010 ET SEQ. 10 O (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 forth therein, on this date before 5:00 p.m. A statement that this transmission was 11 reported as complete and properly issued by the sending fax machine without error is attached to this Proof of Service. 12 (BY E-MAIL) On this date, I personally transmitted the foregoing document(s) 13 via my electronic service address (Natalie. Moore@afslaw.com) to the e-mail address(es) of the person(s) on the attached service list. 14 15 (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 16 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. 17 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 18 mailing following ordinary business practices. 19 (BY PERSONAL SERVICE) On this date, I caused the document(s) to be personally delivered to the persons(s) on the attached service list. 20 (BY OVERNIGHT DELIVERY) On this date, I placed the documents in 21 envelope(s) addressed to the person(s) on the attached service list, and caused those envelopes to be delivered to an overnight delivery carrier, with delivery 22 fees provided for, for next-business-day delivery to whom it is to be served. 23 (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 24 Executed on December 26, 2023, at San Francisco, California. 4 25 {| 7 26 WAAR AA-7 \ 27 Natall ¢Moore 28 -4- ARENTFOX SCHIFF LLP ATTORNEYSAT Law DEFENDANT/ CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S OBEJCTIONS TO SMASHMALLOW, LOS ANGELES LLC’S AFFIDAVITS OF BOND Smashmallow, LLC v. Tanis Food Tec B.V. Sonoma County Superior County Case No.: SCV-268477 SERVICE LIST J. Noah Hagey, Esq. Attorneys for Plaintiff David Kwasniewski, Esq. SMASHMALLOW, LLC Robert T. Petraglia, Esq. Shirley Chan, Esq. Ellen Leonida, Esq. BRAUNHAGEY & BORDEN LLP 351 California Street, 10th Floor San Francisco, CA 94104 Tel.: 415.599.0210 10 Fax: 415.599.0210 hagey@braunhagey.com 11 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 -5- ARENTFOX SCHIFF LLP ATTORNEYSAT Law DEFENDANT/ CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S OBEJCTIONS TO SMASHMALLOW, LOS ANGELES LLC’S AFFIDAVITS OF BOND EXHIBIT D 1 J. Noah Hagey, Esq. (SBN: 262331) hagey@bi raunhagey.com ey. Ellen V. Leonida, Esq. (SBN: 184194) leonida@braunhagey.com Davi . Kwasnlewskl, sq. (SBN: 281985) vasniewski@braunhagey-com kwasniewski Jbraunhagey.com Robert T. Petraglia, Esq. (S 1 264849) etraglia@braunhagey.com BRAUNHAGEY & BORDEN LLP 351 California Street, 10th Floor San Francisco, CA 94104 Telephone: (415) 599-0210 Facsimile: (415) 276-1808 Shirley M. Chan, Esq. (pro hac vice) sn@braunhagey-com chan@braunhagey.com BRAUNHAGEY & BORDEN LLP 118 W 22nd Street, 12th Floor 10 New York, NY 10011 Telephone: (646) 829-9403 11 Facsimile: (646) 403-4089 12 Attorneys for Plaintiff/Cross-Defendant SMASHMALLOW, LLC 13 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 COUNTY OF SONOMA 16 Case No. SCV-268477 SMASHMALLOW, LLC, a Delaware limited 17 liability company, and DOES 1-10, inclusive, AMENDED AFFIDAVIT OF BOND UNDER C.C.P. SECTION 995.010 ET SEQ. 18 Plaintiff, 19 Vv. 20 TANIS FOOD TEC B.V., a Netherlands limited liability company; JOHN DOES 1-50, 21 inclusive, 22 Defendants. 23 24 25 26 27 28 Case No. SCV-268477 AMENDED AFFIDAVIT OF BOND UNDER C.C.P. SECTION 995.010 ET SEQ. 1 TANIS FOOD TEC B.V., 2 Cross-Complainant, 3 Vv. 4] SMASHMALLOW, LLC; DOES 1-10, inclusive. Cross-Defendant. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. SCV-268477 AMENDED AFFIDAVIT OF BOND UNDER C-C-P. SECTION 995.010 ET SEQ. WHEREAS, the above-named SMASHMALLOW, LLC desires to give a bond of $250,000 for Preliminary Injunction as provided in California Civil Procedure section 995.010 et seq. WHEREAS, J, Jon Sebastiani, the undersigned, residing at 3948 Lovall Valley Loop Road, Sonoma, CA 95476, whose occupation is Founder and Managing Partner of Sonoma Brands Capital, and whose business address is 117 W. Napa St., Suite C, Sonoma, CA 95476, and whose name is subscribed as a surety of the above bond, being severally duly sworn, state: 1 I am a resident in and an owner of real property in the State of California. 2 I am worth the sum specified in the above bond, $250,000, in real or personal 10 property, or both, in this state over and above all debts and liabilities, exclusive of property exempt ll from enforcement of a money judgment. 12 3 I am the owner of real and personal property in California which includes $250,000 13 in cash unencumbered by any lien or other impediment. 14 NOW, THEREFORE, the undersigned surety, does hereby obligate himself, jointly and 15 severally, to TANIS FOOD TEC B.V. under said statyto: ligations, in the sum of $ 250,000. 16 17 18 Jo: or Dat 19 20 21 22 23 24 25 26 27 28 1 Case No. SCV-268477 AMENDED AFFIDAVIT OF BOND UNDER C.C.P. SECTION 995.010 ET SEQ. ACKNOWLEDGMENT ite A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Placen _) On 12 | 2S La D> 2 __ before me, Stacey M. Estrada, Notary Public (insert name and title of the officer) personally appeared Ton Sehkashan/ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/sheAkey executed the same in his/heritseir authorized capacity(ies), and that by his/hertheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. | certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Cea WITNESS my hand and official seal. ne STACEY M, ESTRADA, ate a COMM. # 2461232 - F NOTARY PUBLIC -CAJFORNNA oa SIERRA COUNTY sont SE (Seal SPD EXHIBIT E 1 J. Noah Hagey, Esq. (SBN: 262331) hagey@braunhagey.com Ellen V. Leonida, Esq. (SBN: 184194) leonida@braunhagey.com David H. Kwasniewski, Esq. (SBN: 281985) kwasniewski@braunhagey.com Robert T. Petraglia, Esq. (SBN: 264849) petraglia@braunhagey.com BRAUNHAGEY & BORDEN LLP 351 California Street, 10th Floor San Francisco, CA 94104 Telephone: (415) 599-0210 Facsimile: (415) 276-1808 Shirley M. Chan, Esq. (pro hac vice) chan@pbraunhagey.com BRAUNHAGEY & BORDEN LLP 118 W 22nd Street, 12th Floor 10 New York, NY 10011 Telephone: (646) 829-9403 11 Facsimile: (646) 403-4089 12 Attorneys for Plaintiff/Cross-Defendant SMASHMALLOW, LLC 13 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 COUNTY OF SONOMA 16 Case No. SCV-268477 SMASHMALLOW, LLC, a Delaware limited 17 liability company, and DOES 1-10, inclusive, RESPONSE TO DEFENDANT/CROSS- COMPLAINANT TANIS FOOD TEC 18 Plaintiff, B.V.’S OBJECTION TO SMASHMALLOW, LLC’S AFFIDAVITS 19 Vv. OF BOND UNDER C.C.P. SECTION 995.010 ET SEQ. 20 TANIS FOOD TEC B.V., a Netherlands limited liability company; JOHN DOES 1-50, Judge: Hon. Christopher M. 21 inclusive, Honigsberg Courtroom: 22 Defendants. Complaint Filed: May 26, 2021 23 Trial: September 8, 2023 24 25 26 27 28 Case No. SCV-268477 RESPONSE TO DEFENDANT’S OBJECTION TO AFFIDAVITS OF BOND 1 TANIS FOOD TEC B.V., 2 Cross-Complainant, 3 Vv. 4 SMASHMALLOW, LLC; DOES 1-10, inclusive. Cross-Defendant. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. SCV-268477 RESPONSE TO DEFENDANT’S OBJECTION TO AFFIDAVITS OF BOND Plaintiff Smashmallow, LLC (“Smashmallow’) respectfully submits this response to Defendant’s objection to Smashmallow’s affidavits of bond under Code of Civil Procedure Section 995.010 et seq. Defendant’s assertion (Obj. § 6) that the affidavits are substantively defective lack merit. Pursuant to the Court’s order at the December 20, 2023 hearing and Code of Civil Procedure section 995.010 et seq., Smashmallow filed two affidavits in support of its bond on December 26, 2023. The bonds were executed by Smashmallow and sureties Jon Sebastiani and Sonoma Brands Capital. On December 28, 2023, Smashmallow also filed an amended affidavit of bond, executed by Mr. Sebastiani, to include Mr. Sebastiani’s residence address pursuant to section 995.520(b). 10 Together, the bond affidavits comply with section 995.520(c) because both sureties confirmed that 11 they are the owner of real and personal property in California, including $250,000 in cash 12 unencumbered by any “lien” or “other impediment.” Civ. Proc. Code § 995.520(c). The bond 13 affidavits also contain language compliant with sections 995.320 and 995.330 (regarding contents 14 and form of bond) in addition to section 995.520 (regarding contents of surety’s affidavit of 15 qualifications). Further, Defendant claims that the bond affidavits are signed by the principal 16 (Smashmallow) in violation of section 995.190. But as Defendant admits, that statute applies to 17 undertakings, not bonds which are executed by both the principal and surety. Civ. Proc. Code 18 § 995.140(a)(1) (a bond is “executed by both the principal and sureties”). 19 Defendant’s claim that “the Preliminary Injunction is no longer in effect” (Obj. at 3) is 20 incorrect. Smashmallow’s bond affidavits are compliant with the Court’s order that Smashmallow 21 file a bond in the amount of $250,000, and are sufficient for the Court’s issuance ofa preliminary 22 injunction prohibiting Defendant from making any transfers of assets outside the normal course of 23 business. 24 // 25 // 26 // 27 // 28 // 1 Case No. SCV-268477 RESPONSE TO DEFENDANT’S OBJECTION TO AFFIDAVITS OF BOND 1 || Dated: December 28, 2023 Respectfully submitted, 2 BRAUNHAGEY & BORDEN LLP 3 } A8 By: David Ski Attorneys for Plaintiff/Cross-Defendant Smashmallow, LLC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case No. SCV-268477 RESPONSE TO DEFENDANT’S OBJECTION TO AFFIDAVITS OF BOND EXHIBIT F TRANSCRIPTOF PROCEEDINGS Vol. 13 October 10, 2023 SMASHMALLOW vs TANIS FOOD TEC B.V. 2215 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SONOMA BEFORE THE HONORABLE CHRISTOPHER HONIGSBERG DEPARTMENT 18 SMASHMALLOW, LLC, a Delaware limited liability company, and DOES 1-10, inclusive, Plaintiff, vs. Case No.: SCV-268477 TANIS FOOD TEC B.V., a Pages: 2215 - 2413 10 Netherlands limited liability Volume: 13 company; JOHN DOES 1-50, 11 inclusive, 12 Defendants. ----------- ee ee ee ee 13 AND RELATED CROSS-ACTION. ----------- ee ee ee ee 14 15 Stenographic Reporter's Transcript of Proceedings 16 Tuesday, October 10, 2023 17 18 19 20 21 Stenographically reported by: LORRIE L. MARCHANT, RMR, CRR, CCRR, CRC 22 California CSR No. 10523 Washington CSR No. 3318 23 Oregon CSR No. 19-0458 Texas CSR No. 11318 24 Job No.: 310380295 25 California Firm Registration No.: 29 ZESQ UIRE DEPOSITION SOLUTIONS 800.211.DEPO (3376) EsquireS olutions.com TRANSCRIPT OF PROCEEDINGS Vol. 13 October 10, 2023 SMASHMALLOW vs TANIS FOOD TEC B.V. 2250 THE COURT: Okay. Just a minute. Okay. Go ahead. BY MR. KWASNIEWSKI: Q Do you recognize the people in this photograph, Mr. Amin? A I do. Q Who are they? A This was the Smash team at its best and brightest. 10 Q Any of them work for Smashmallow now? 11 A Unfortunately, no. 24 Q So, Mr. Amin, why not just write 25 Smashmallow off as a loss? Z ESQUIRE DEPOSITION SOLUTIONS 800.211.DEPO (3376) EsquireS olutions.com TRANSCRIPTOF PROCEEDINGS Vol. 13 October 10, 2023 SMASHMALLOW vs TANIS FOOD TEC B.V. 2413 State of California ) County of Sonoma ) I, Lorrie L. Marchant, Court Reporter at the Superior Court of California, County of Sonoma, do hereby certify: That I was present at the time of the above proceedings; That I took down in machine shorthand notes, to the best of my ability, all proceedings had and 10 testimony given; 11 That I thereafter transcribed said shorthand notes 12 with the aid of a computer; 13 That the above and foregoing is a full, true and 14 substantially accurate record of said shorthand notes, 15 and a full, true and correct transcript of all 16 proceedings had and testimony taken; 17 That I am not a part to the action or related to a 18 party or counsel; 19 That I have no financial or other interest in the 20 outcome of the action. 21 Dated: October 31, 2023. 22 Por] Waschawte 23 24 Lorrie CL. Marchant, CSR No. 10523 25 ZESQ UIRE DEPOSITION SOLUTIONS 800.211.DEPO (3376) EsquireS olutions.com Smashmallow, LLC v. Tanis Food Tec B.V. Sonoma County Superior County Case No.: SCV-268477 PROOF OF SERVICE I am a citizen of the United States. My business address is ArentFox Schiff LLP, 44 Montgomery Street, 38th Floor, San Francisco, California 94104. Iam 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 within cause. On the date set forth below, according to ordinary business practice, I served the foregoing document(s) described as: DECLARATION OF LYNN R. FIORENTINO IN SUPPORT OF DEFENDANT AND CROSS-COMPLAINANT TANIS FOOD TEC B.V.’S NOTICE OF MOTION AND MOTION OBJECTING TO AND MOVING TO STRIKE PLAINTIFF SMAHSMALLOW, LLC’S AFFIDAVITS OF BOND UNDER C.C.P. SECTION 995.010 ET SEQ. 10 (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 11 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 12 error is attached to this Proof of Service. 13 (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 14 address(es) of the person(s) on the attached service list. 15 (BY MAIL) I am readily familiar with my employer’s business practice for 16 collection and processing of correspondence for mailing with the U.S. Postal Service, and that practice is that correspondence is deposited with the U.S. Postal 17 Service the same day as the day of collection in the ordinary course of business. On this date, I placed the document(s) in envelopes addressed to the person(s) on 18 the attached service list and sealed and placed the envelopes for collection and mailing following ordinary business practices. 19 (BY PERSONAL SERVICE) On this date, I caused the document(s) to be 20 personally delivered to the persons(s) on the attached service list. 21 (BY OVERNIGHT DELIVERY) On this date, I placed the documents in envelope(s) addressed to the person(s) on the attached service list, and caused 22 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. 23 (State) I declare under penalty of perjury under the laws of the State of 24 California that the foregoing is true and correct. 25 Executed on January 9, 2024, at San Francisco, California, / } 26 27 Natalie Moore 28 ARENTFOX SCHIFF LLP ATTORNEYS AT LAW DECLARATION OF LYNN R. FIORENTINO IN SUPPORT OF TANIS’ NOTICE OF MOTION AND LOS ANGELES MOTION OBJECTING TO AND MOVING TO STRIKE PLAINTIFF’S AFFIDAVITS OF BOND Smashmallow, LLC v. Tanis Food Tec B.V. Sonoma County Superior County Case No.: SCV-268477 SERVICE LIST J. Noah Hagey, Esq. Attorneys for Plaintiff David Kwasniewski, Esq. SMASHMALLOW, LLC Robert T. Petraglia, Esq. Shirley Chan, Esq. Ellen Leonida, Esq. BRAUNHAGEY & BORDEN LLP 351 California Street, 10th Floor San Francisco, CA 94104 Tel.: 415.599.0210 10 Fax: 415.599.0210 hagey@braunhagey.com 11