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SANDRA I. TIBERI, ESQ/BAR #192816 Electronically FILED by
HEMAR, ROUSSO & HEALD, LLP Superior Court of California,
15910 Ventura Boulevard County of Los An: geles
12th Floor 7/01/2024 9:00 Al
David W. Slayton,
Encino, CA 91436 Executive Officer/Clerk of Court,
Telephone: (818) 501-3800 By P. Diaz, Deputy Clerk
Facsimile: (818) 501-2985
E-mail: sandra@hrhlaw.com
Attorneys for Plaintiff
FUND-EX SOLUTIONS GROUP, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
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(Van Nuys Courthouse East - Unlimited)
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12 FUND-EX SOLUTIONS GROUP, LLC, CaseNo: 24yVECwO3130
£213 COMPLAINT FOR:
as Plaintiff,
sos 14 Breach of Written Agreement
os
Se Vv. Breach of Personal Guaranty
sz 15 Foreclosure of Security Agreement
MAK HOME STAGING LLC, a California Money Lent
16 limited liability company; MAYA MAKDESI, Account Stated
an individual;
17 DOES 1-100, inclusive,
[Demand Exceeds $589,633.09]
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Defendants.
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22 Plaintiff alleges as follows:
23 1 At all times mentioned herein, FUND-EX SOLUTIONS GROUP, LLC (hereinafter
24 referred to as “Plaintiff’) was, and now is, a duly organized limited liability company existing under
25 and by virtue of the laws of the State of Florida and at all times herein mentioned was and is duly
26 licensed to conduct business in the State of California.
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COMPLAINT
2. The true names and capacities of Defendants, DOES 1-100, inclusive, are unknown to
Plaintiff at this time, who therefore sues said Defendants by such fictitious names. Plaintiff is
informed and believes, and thereon alleges, that each Defendant named in this Complaint, including
DOES, was at all times herein mentioned, and now is, the agent, servant, subsidiary, partner, member,
associate, representative or employee of each of the other Defendants, including DOES, and all of the
things alleged to have been done by the Defendants were done in the course and scope of agency,
employment, service, subsidiary relationship, partnership, membership, association, or representative
relationship, with knowledge and consent of their respective principals, employers, masters, parent
corporations, partners, members, associates or representatives. Plaintiff is informed and believes, and
10 thereon alleges, that each defendant named as a DOE is responsible for each and every obligation
11 hereinafter set forth.
12 3 Plaintiff alleges that the Defendants, or some of them, reside in the above-cited Judicial
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District. The obligation sued upon is commercial in nature and is not subject to the provisions of Cal.
sos 14 Civ. Code § 2984.4, nor Cal. Civ. Code § 1812.10.
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sz 15 FIRST CAUSE OF ACTION
16 (Breach of Written Agreement Against MAK HOME STAGING LLC,
17 a California limited liability company; DOES 1-10, inclusive)
18 4 Plaintiff refers to paragraphs | through 3, inclusive and by this reference incorporates
19 the same herein as though fully set forth.
20 5 On or about October 27, 2022, MAK HOME STAGING LLC, a California limited
21 liability company (hereinafter referred to as “Defendant”) executed and delivered to Plaintiff a Loan
22 Agreement and U.S. Small Business Administration Note (collectively the “Agreement”’) wherein and
23 whereby Defendant received a business loan from Plaintiff in the principal amount of $639,000.00,
24 together with interest at the rate of Prime plus 2.75% per annum. Defendant agreed to comply with
25 the terms and conditions stated therein. As set forth under the terms and conditions of Agreement,
26 Defendant agreed to pay Plaintiff principal and interest payments of $8,094.58 per month until the
27 maturity date of October 27, 2032. A true and correct copy of the Loan Agreement is attached hereto
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COMPLAINT
as Exhibit “1" and is incorporated herein as though set forth in full. A true and correct copy of the
U.S. Small Business Administration Note is attached hereto as Exhibit “2” and is incorporated herein
as though set forth in full. A true and correct copy of the Limited Liability Company Resolution to
Borrow/Grant Collateral is attached hereto as Exhibit “3” and is incorporated herein as though set
forth in full.
6 Theretofore and thereafter, Plaintiff duly performed or was excused from performing
all terms and conditions of the Agreement on its part to be performed.
7 Thereafter, on or about March 15, 2024, Defendants, and each of them, subsequently
defaulted under the terms and conditions of the Agreement in that it failed and refused to make the
10 payments due thereunder.
11 8 As a result thereof, Plaintiff has, pursuant to the terms of the Agreement, declared the
12 whole sum of principal, together with interest due and payable. The principal due and payable from
2313 Defendants to Plaintiffis the sum of $589,633.09, plus accrued interest at the rate of Prime plus 2.75%
os 14 through June 20, 2024 in the amount of $19,264.04 and continuing thereafter in an amount to be
gs
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Z 15 proven at time of trial.
16 9. In addition, Defendant is liable to Plaintiff for late charges if a minimum payment is
17 received 10 days after the due date in an amount up to 5% of the unpaid portion of the regularly
18 scheduled payment. As of June 20, 2024, late charges are due in the amount of $1,349.22 and
19 continuing in an amount to be proven at time of trial.
20 10. In addition, Defendant is liable to Plaintiff for miscellaneous collection fees in the
21 amount of $2,739.32.
22 ll. Although demand therefore has been made, no part of said sum has been paid, and the
23 sum of $589,633.09, plus accrued interest through June 20, 2024 in the amount of $19,264.04, plus
24 interest continuing thereafter at Prime plus 2.75%, plus late charges through June 20, 2024 in the
25 amount of $1,349.22 and continuing in an amount to be proven at time of trial, plus miscellaneous
26 collection fees in the amount of $2,739.32 are due, owing and unpaid.
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COMPLAINT
12. The Agreement provides for the payment of reasonable attorney's fees in the event suit
is instituted to enforce the provisions thereof. Plaintiff
has retained the Law Offices of HEMAR,
ROUSSO & HEALD, LLP for the purpose of instituting this action and Plaintiffis therefore entitled
to reasonable attorney's fees.
SECOND CAUSE OF ACTION
(Breach of Personal Guaranty against MAYA MAKDESI, an individual)
13. Plaintiff refers to the First Cause of Action, and incorporates the same herein as though
set forth in full.
14. To induce Plaintiffto furnish the above-referenced line of credit and monies to
10 Defendant, MAYA MAKDESI, an individual (hereinafter “Guarantor Defendant” or “Defendant”,
11 executed in writing an Unconditional Guarantee to the Agreement. A true and correct copy of the
12 Unconditional Guaranty is attached hereto as Exhibit “4" and is incorporated herein by reference
2313 (hereinafter “Personal Guaranty”).
os 14 15. Thereafter, on or about March 15, 2024, Guarantor Defendant subsequently defaulted
gs
oe
Z 15 under the terms and conditions of the Agreement in that it has failed and refused and continues to fail
16 and refuse to make the payments due thereunder.
17 16. By virtue of the above, Plaintiff has, pursuant to the terms of the Agreement, declared
18 the whole sum of principal, together with interest due and payable. Therefore, Guarantor Defendant is
19 indebted to Plaintiff in the sum of $589,633.09, plus accrued interest through June 20, 2024 in the
20 amount of $19,264.04, plus interest at the rate of Prime plus 2.75% continuing thereafter, plus late
21 charges through June 20, 2024 in the amount of $1,349.22 and continuing in an amount to be proven
22 at time of trial, plus miscellaneous collection fees in the amount of $2,739.32, are due, owing and
23 unpaid.
24 17. Said Personal Guaranty also provides for the payment of reasonable attorney's fees
25 should legal action be instituted to enforce the payment thereof. Plaintiff has retained the Law Offices
26 of HEMAR, ROUSSO & HEALD for the purpose of this action and is therefore entitled to reasonable
27 attorney's fees.
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COMPLAINT
THIRD CAUSE OF ACTION
(Foreclosure of Security Agreement MAK HOME STAGING LLC,
a California limited liability company; DOES 11-20, inclusive)
18. Plaintiff refers to the First Cause of Action, and by this reference incorporates the same
herein as though fully set forth.
19. To secure payment of the obligation set forth in the Agreement, Defendant executed a
Security Agreement — Commercial wherein Defendant Mak Home Staging LLC agreed to grant
Plaintiff a security interest in property defined as Collateral therein (hereinafter “Security
Agreement”). A true and correct copy of the Commercial Security Agreement is attached hereto as
10 Exhibit “5” and incorporated herein as though fully set forth.
11 20. On or about October 25, 2022, Plaintiff filed a UCC Financing Statement perfecting its
12 security interest. A true and correct copy of the UCC Financing Statement is attached hereto as Exhibit
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“6” and incorporated herein as though fully set forth.
sos 14 21. Plaintiff has duly performed or has been excused from performing all of its obligations
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sz 15 to be performed under the Security Agreement.
16 22. Said Security Agreement provides that upon a default by Defendant, Plaintiff is entitled
17 to take possession and dispose of the Collateral.
18 23. By virtue of Defendant’s default in payment of the Security Agreement, Plaintiff is
19 entitled to immediate possession of Collateral.
20 24. Plaintiff
has not yet repossessed the Collateral nor is this Complaint based upon any
21 claimed deficiency balance. In the event that Plaintiff recovers the collateral either by way of judicial
22 process or otherwise, and liquidates said Collateral, then Plaintiff shall credit Defendant with the net
23 proceeds of any sale.
24 25. Plaintiff is informed and believes that to the extent any Collateral exists, it is now in
25 possession ofthe Defendant and that Plaintiff is entitled to immediate possession of the Collateral.
26 26. Said Security Agreement provides for the payment of reasonable attorney's fees in the
27 event suit is instituted to enforce the provisions thereof. Plaintiff has retained the Law Offices of
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COMPLAINT
Hemar, Rousso & Heald, LLP for the purpose of instituting this action and Plaintiff is therefore
entitled to reasonable attorney's fees.
FOURTH CAUSE OF ACTION
(Money Lent Against All Defendants)
27. Plaintiff refers to paragraphs | through 26, inclusive, and by this reference incorporates
the same herein as though fully set forth.
28. Within four years last past, Defendants, and each of them, became indebted to Plaintiff
in the principal sum of $589,633.09 for monies paid, lent and expended for Defendants, and each of
them, at their instance and request.
10 29. No part of said sum has been paid, although demand therefore has been made, and there
11 is now due, owing and unpaid to Plaintiff, the principal sum of $589,633.09, together with interest
12 thereon at the rate of ten percent (10%) per annum according to proofat the time of trial.
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FIFTH CAUSE OF ACTION
sos 14 (Account Stated Against All Defendants)
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sz 15 30. Plaintiff refers to paragraphs | through 29, inclusive, and by this reference incorporates
16 the same herein as though fully set forth.
17 31. Within four years last past, an account was stated by and between Plaintiff and
18 Defendants, wherein it was agreed that said Defendants, and each of them, were indebted to Plaintiff
19 in the principal sum of $589,633.09.
20 32. No part of said sum has been paid, although demand therefor has been made and there
21 is now due, owing and unpaid from Defendants, and each of them, to Plaintiff
the principal sum of
22 $589,633.09, together with interest thereon at the rate of ten percent (10%) per annum according to
23 proof at the time of trial.
24 WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as
25 follows:
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COMPLAINT
AS TO THE FIRST AND SECOND CAUSES OF ACTION
For the principal sum of $589,633.09;
For accrued interest through June 20, 2024 in the amount of $19,264.04 :3
For interest continuing thereafter at Prime plus 2.75%.;
For late charges through June 20, 2024 in the amount of $1,349.22, and
continuing thereafter in an amount to be proven at time of trial;
5 For miscellaneous collection fees in the amount of $2,739.32;
6 For reasonable attorney’s fees;
AS TO THE THIRD CAUSE OF ACTION
10 7 For judgment that the Security Agreement referred to be foreclosed;
11 8 For reasonable attorney’s fees;
12 AS TO THE FOURTH AND FIFTH CAUSES OF ACTION
£213
as
9. For the principal sum of $589,633.09;
sos 14 10. For interest thereon at the rate of ten percent (10%) per annum from date of
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sz 15 default;
16 AS TO ALL CAUSES OF ACTION
17 ll. For costs of suit incurred herein;
18 12. For such other and further reliefas the Court may deem just and proper.
19 DATED: July 1, 2024 HEMAR, ROUSSO & HEALD, LLP
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* SANDRA I. TIBERI
22 Attorneys for Plaintiff
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COMPLAINT
EXHIBIT 1
DocuSign Envelope ID: 24C26591-B788-4835-9A7F-85A7B3ABEA02
LOAN AGREEMENT
DATED AS OF
OCTOBER 27, 2022
BY AND AMONG
FUND-EX SOLUTIONS GROUP, LLC, AS LENDER
AND
MAK HOME STAGING LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AS
BORROWER
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DocuSign Envelope ID: 24C26591-B788-4835-9A7F-85A7B3ABEA02
AN AGREEME)
THIS LOAN AGREEMENT is made as of October 27, 2022, by and among MAK HOME STAGING
LLC, a California limited liability company, whose address is 60 Industrial Way, Brisbane, CA 94005
(“Borrower”), and Fund-Ex Solutions Group, LLC, whose address is 201 Solar Street, Syracuse, NY 13204
(together with its successors and assigns, “Lender”).
In consideration of the premises and of the mutual covenants contained in this Agreement and intending to
be legally bound, the parties agree as follows:
ARTICLE I. Definitions
il Defin ns. As used in this Agreement, unless otherwise specified, the following terms shall
have the following respective meanings:
“Affiliate” means any Person who now or hereafter has Control of, or is now or hereafter under
common Control with, Borrower or any Subsidiary or over whom or over which Borrower or any Subsidiary now or
hereafter has Control.
“Agreement” means this agreement, including any Schedule hereto, as the same may be amended,
supplemented, restated or otherwise modified from time to time.
“Anti-Terrorism Laws” means any laws relating to terrorism or money laundering, including,
without limitation, Executive Order No. 13224, the USA Patriot Act, the laws comprising or implementing the Bank
Secrecy Act, and the laws administered by the United States Treasury Department’s Office of Foreign Asset Control
(as any of the forgoing laws may from time to time be amended, renewed, extended or replaced).
“Authorization” means the SBA Loan Authorization dated October 25, 2022, SBA Loan # PLP
44280291-00.
“Business Day” means a day of the year which is neither a Saturday or Sunday nor a legal holiday
on which banks are required or authorized by law to close in the State of California.
“Closing” or “Closing Date” means the closing of the transactions provided for in this
Agreement, or such other date upon which the parties may agree.
“Collateral” means all of Borrower's and/or Guarantor’s assets, howsoever arising, wherever
located and whether now owned or existing or hereafter existing or acquired, as more fully described in the
Collateral Documents.
“Collateral Documents” means collectively, any security agreement, UCC-1 financing statement,
mortgage, deed of trust, and any and all other documents at any time executed and delivered in connection therewith
or with this Agreement securing the Lenders interest in Collateral, and any and all amendments, restatements,
renewals or replacements thereof. :
“Constituent Documents” means the applicable formation documents (articles of incorporation,
articles of organization, partnership agreement, trust agreement, as applicable) and governance documents (by-laws,
operating agreement, partnership agreement, trust agreement, as applicable) of any Obligor, as applicable.
“Control” means (a) the power to vote at least 50% of (i) the outstanding shares of any class of
stock of a corporation or (ii) of any equity, membership or ownership interest in any partnership, limited partnership,
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limited liability company or other business entity or (b) the beneficial ownership of at least 20% of (i) the
outstanding shares of any class of stock of a corporation or (ii) of any outstanding equity, membership or ownership
interest in any partnership, limited partnership, limited liability company or other business entity.
“Environment” means any water including, but not limited to, surface water and ground water or
water vapor; any land including land surface or subsurface; stream sediments; air; fish; wildlife; plants; and all other
natural resources or environmental media.
“Environmental Indemnity Agreement” means that certain Environmental Indemnity
Agreement of even date herewith, executed and delivered by Borrower and any Guarantor to Lender, as amended,
modified or supplemented from time to time, if any.
“Environmental Laws” means all foreign, federal, state, county, provincial and local
environmental, land use, zoning, health, chemical use, safety and sanitation laws, statutes, ordinances, regulations,
codes and rules relating to the protection of the Environment and/or governing the use, storage, treatment,
generation, transportation, processing, handling, production or disposal of Hazardous Substances and the policies,
guidelines, procedures, interpretations, decisions, orders and directives of any governmental authority with respect
thereto.
“Environmental Permits” means all licenses, permits, approvals, authorizations, consents or
registrations required by any applicable Environmental Laws and all applicable judicial and administrative orders in
connection with ownership, lease, purchase, transfer, closure, use and/or operation of Borrower's property,
inclu 1g, without limitation, as may be required for the storage, treatment, generation, transportation, processing,
handling, production or disposal of Hazardous Substances.
“ERISA Affiliate” means any Person who is under common control with a Borrower within the
meaning of Section 414(b) of the Internal Revenue Code of 1986, as amended, including, but not limited to, a Subsidiary
of a Borrower.
“Executive Order No. 13224” means Executive Order No. 13224 on Terrorist Financing,
effective September 24, 2001, as the same has been, or shall hereafter be, amended, renewed, extended or replaced.
“Guarantor” or “Guarantors” means, jointly and severally, each Person or entity who
guarantees payment of any Loan governed by this Agreement.
“Guaranty” or “Guaranties” means any guaranty agreement given by Guarantor to Lender, as it
may be amended, restated, supplemented or otherwise modified from time to time.
“Hazardous Substances” means without limitation, any flammable explosives, radon, radioactive
materials, asbestos, asbestos containing materials, urea formaldehyde foam insulation, lead based paints,
polychlorinated biphenyls, petroleum and petroleum products, methane, hazardous materials, hazardous wastes,
hazardous or toxic substances, pollutant, contaminant, regulated substance, residual waste or related materials as
defined in or subject to any Environmental Law, including, without limitation, the following federal statutes and any
comparable state or county Environmental Laws: the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.), the Hazardous Materials Transportation Act,
as amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act, as amended (42
U.S.C. Sections 6901, et seq.), The Clean Water Act, as amended (33 U.S.C. Sections 1251, et seq.), The Safe
Drinking Water Act (42 U.S.C. Sections 300f, et seq.), The Clean Air Act (42 U.S.C. Sections 7401, et seq.), and/or
regulations adopted pursuant to any such Environmental Law.
“Indebtedness” of a Person at a particular date means all liabilities and obligations of such
Person, including without limitation, those which in accordance with sound accounting principles would be
classified upon a balance sheet as liabilities and all other indebtedness, debt and other similar monetary obligations
of such Person whether direct or guaranteed, contingent or liquidated, matured or unmatured and all premiums, if
any, due at the required prepayment dates of such any indebtedness, and all indebtedness secured by a lien on assets
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DocuSign Envelope ID: 24C26591-B788-4835-9A7F-85A7B3ABEA02
owned by such Person, whether or not such indebtedness actually shall have been created, assumed or incurred by
such Person. Any indebtedness of such Person resulting from the acquisition by such Person of any assets subject to
any lien shall be deemed, for the purposes hereof, to be the equivalent of the creation, assumption and incurring of
the indebtedness secured thereby, whether or not actually so created, assumed or incurred.
“Leased Property” means that certain real property located at 60 Industrial Way, Brisbane,
California, leased by Borrower from Michael K. Yates.
“Lender Affiliate” means any bank or non-bank subsidiary (other than Lender) of Lender.
“Loan” and collectively, “Loans” has the meaning set forth in Section 2.1 of this Agreement.
“Loan Document” and collectively, “Loan Documents” means the Collateral Documents, the
Notes, the Guaranties, and any other documents, instruments or agreements executed in connection with the Loan,
as may be amended, modified or supplemented from time to time.
“Loan Maturity Date” means the date set forth in the applicable Note issued pursuant to this
Agreement on which a Loan is scheduled to be paid in full, unless such date is otherwise accelerated in accordance
with the terms of this Agreement.
“Margin Stock” has the meaning set forth in Regulation U of the Board of Governors of the
Federal Reserve System, as amended from time to time.
“Material Adverse Effect” means a material adverse effect on: (a) the property, assets, financial
condition, business or operations of an Borrower ; (b) the ability of Borrower to perform any of its payment or other
obligations under this Agreement, any Note, any Collateral Document or other Loan Document to which it is a
party; (c) the legality, validity or enforceability of the obligations of Borrower under this Agreement, any Note, any
Collateral Document or other Loan Document to which it is a party; or (d) the ability of Lender to exercise its rights
and remedies with respect to, or otherwise realize upon, any of the collateral or any of the security for the
obligations of Borrower or Guarantor to Lender or any Lender Affiliate under this Agreement, any Note, any
Collateral Document or other Loan Document.
“Note” or “Notes” has the meaning set forth in Section 2.2 of this Agreement.
“Obligor” means any Borrower, Guarantor or any other Person providing collateral support for
Borrower’s obligations hereunder.
“Pension Plan” means any pension plan as defined in Section 3(2) of the Employee Retirement
Income Security Act of 1974 as amended (“ERISA”) with respect to which Borrower or any Subsidiary has incurred
or may incur liability, including contingent liability, under Title IV of ERISA, to such plan or to the Pension Benefit
Guaranty Corporation. For purposes of this definition and for purposes of Section 7.1(i), “Borrower” shall include
any trade or business (whether or not incorporated) which, together with Borrower or a Subsidiary, is deemed to be a
“single employer” within the meaning of Section 4001(b)(1) of ERISA.
“Permitted Distribution” means any distributions to Borrower’s members (i) in an amount equal
to the amount of tax liability required to be paid by such members as a result of Borrower’s taxable income passing
through and being taxable to such members, or (ii) pursuant to the terms of the Borrower’s Operating Agreement,
provided, such payment shall not result in a Material Adverse Effect.
“Permitted Encumbrances” means any liens on collateral listed on Schedule 5.2 attached hereto.
“Permitted Indebtedness” means any debt incurred by Borrower listed on Schedule 5.1 attached
hereto.
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DocuSign Envelope ID; 24C26591-B788-4835-9A7F-B5A7B3ABEA02
“Person” means any individual, corporation, limited liability company, partnership, joint venture,
trust, unincorporated association, government or political subdivision or other entity, body, organization or group.
“Reportable Event” means any event with regard to a Pension Plan described in Section 4043(b)
of ERISA, or in Regulations issued thereunder.
“SBA” means the United States Small Business Administration.
“Schedule” means any Schedule that may be attached to this Agreement and made a part hereof.
“Subsidiary” means any corporation of which at least 25% of the voting stock is owned by
Borrower directly, or indirectly through one or more Subsidiaries.
“UCC” means the Uniform Commercial Code as in effect in the State of California.
“USA Patriot Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as the same has been, or shal!
hereafter be, renewed, extended, amended or replaced.
12 Accounting Terms, All accounting terms not otherwise defined herein shall have the meaning
assigned to them in accordance with sound accounting principles.
13 u Definitions, Unless otherwise defined in this Agreement, capitalized words shall have the
meanings set forth in the Uniform Commercial Code as in effect in the State of California.
ARTICLE II. The Financing
21 Loans, Lender agrees, based on the terms and conditions and relying upon the representations and
warranties set forth in this Agreement, to lend to Borrower, and Borrower agrees to borrow from Lender, one or
more loans to be more fully described in the Notes and payable according to the terms of the respective Notes (each
a “Loan” and collectively the “Loans”). As a condition to the making of any Loan, Borrower shall execute and
deliver to Lender a Note or Notes evidencing the terms of repayment of such Loan.
2.2 ‘The Notes. The Loan subject to this Agreement shall be evidenced in part by, and payable as
provided in, a note (other than any demand note) (as amended, restated or otherwise modified from time to time
each a “Note” and collectively the “Notes”) executed by Borrower.
2.3 Interest and Late Charges.
(a) Interest and Late Charges on the Loan, The Loan shall bear interest at a per annum rate
equal to the interest rate set forth in the applicable Note evidencing such Loan until maturity (whether by
acceleration or otherwise) and thereafter until paid in full on the unpaid principal amount thereof. If any payment of
principal of or interest on any Note is not paid when due, Borrower shall pay to Lender any late charge set forth in
the applicable Note.
(b) Computation of Interest and Payment. Accrued interest on the Loan shall be paid on the
dates set forth in the Note, and on the date the Loan is paid in full. Interest on the Loan shall be calculated on the
basis set forth in the Note. Principal payments shall be made as set forth in the Note.
2.4 Use_of Proceeds. Proceeds of the Loan shall be used for the purposes set forth in the
Authorization.
2.5 Conditions Precedent, Lender shall not be obligated to advance any Loan if (a) any Event of
Default shall occur or be continuing or (b) Borrower fails to meet any other conditions set forth in the Loan
Documents.
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2.6 Advances. Borrower acknowledges and agrees that the Loan may not be fully disbursed on the
date hereof. For all disbursements of Loan funds made, or to be made, after the date hereof, to Borrower, or on
Borrower’s behalf, in either a lump sum or on a multiple advance basis under the terms and conditions of the
Authorization and this Agreement (each an “Advance”), Borrower agrees as follows:
(a) Application for Advances. Each application shall be stated on a standard Lender request
for payment form or other form approved by Lender, executed by Borrower, and supported by such evidence as
Lender shall reasonably require. Each application for an Advance shall be deemed a certification of Borrower that
as of the date of such application, all representations and warranties contained in the Authorization, this Agreement
and all of the other Loan Documents are true and correct, and that Borrower is in compliance with all of the
provisions of the Loan Documents.
(b) Payments. At the sole option of Lender, Advances may be paid in the name of Borrower
and/or party as designated by Borrower. This power shall be deemed coupled with an interest, shall be irrevocable,
and shall survive an Event of Default under the Loan Documents.
27 Charge to Account, On the date that any principal of, or interest on, the Loan, or of any fees,
expenses or charges payable are due, Borrower authorizes Lender to debit its account maintained with Lender on
such due date in an amount equal to such unpaid principal, interest, fee, expense or charge, as applicable; provided
that Lender shall be under no obligation to so debit any such deposit account.
ARTICLE III. Representations and Warranties
Borrower makes the following representations and warranties, which shall be deemed to be continuing
representations and warranties so long as any indebtedness of Borrower to Lender or any Lender Affiliate, including
indebtedness for fees and expenses, remains unpaid:
3.1 Good Standing and Authority. If Borrower is not an individual, Borrower is an entity, duly
organized, and validly existing, and in good standing under the laws of the state of its formation or organization; has
all necessary power and authority to transact the business in which it is engaged; is duly licensed or qualified and in
good standing in each other jurisdiction in which the conduct of such business requires such licensing or such
qualification, except where the failure to be so licensed or qualified would not have a Material Adverse Effect.
Borrower has all necessary power and authority to enter this Agreement and to execute, deliver and perform this
Agreement and all other Loan Documents executed in connection with this Agreement, all of which have been duly
authorized by all proper and necessary action by Borrower and the owners of Borrower.
3.2 Valid_and Binding Obligation, This Agreement and all other Loan Documents executed in
connection herewith constitute the legal, valid and binding obligations of Borrower, enforceable in accordance with
their respective terms except as enforceability may be limited by applicable bankruptcy and insolvency laws and
laws affecting creditor’s rights generally.
3.3 Good Title. Borrower has good and marketable title to all of its assets, none of which is subject to
any mortgage, indenture, pledge, lien, conditional sale contract, security interest, encumbrance, claim, trust or
charge except for Permitted Encumbrances.
3.4 No Pending Litigation, There are not any actions, suits, proceedings (whether or not on behalfof
Borrower) or investigations pending or, to the best of Borrower’s knowledge, threatened against Borrower which, if
adversely determined, would, in any case or in the aggregate, have a Material Adverse Effect, or which question the
validity of this Agreement and the other Loan Documents required by this Agreement, or any action taken or to be
taken pursuant to any of the foregoing.
3.5 No _Consent_or_ Filing, No consent, license, approval or authorization of, or registration,
declaration or filing with, any court, governmental body or authority or other Person, which has not been obtained or
made, is required in connection with the valid execution, delivery or performance of this Agreement and the other
{04099755;v1 }
DocuSign Envelope ID: 24C26591-8788-4835-9A7F-85A7B3ABEA02
Loan Documents required by this Agreement or in connection with any of the transactions contemplated thereby,
other than filings and recordings in connection with the Collateral Documents.
3.6 No Violations. Borrower is not in violation of any term of its Constituent Documents, or of any
mortgage, borrowing agreement or other instrument or agreement pertaining to indebtedness for borrowed money.
Borrower is not in violation of any term of any other indenture, instrument, or agreement to which it is a party or by
which it may be bound, resulting, or which might reasonably be expected to result, in a Material Adverse Effect.
Borrower is not in violation of any order, writ, judgment, injunction or decree of any court of competent jurisdiction.
To Borrower’s best knowledge, Borrower is not in violation of any statute, rule or regulation of any competent
governmental authority, the violation of which could have a Material Adverse Effect. The execution and delivery of
the Loan Documents required by this Agreement and the performance of all of the same is and will be in compliance
with the foregoing and will not result in any violation or result in the creation of any mortgage, lien, security
interest, charge or encumbrance upon any properties or assets except in favor of Lender, There exists no fact or
circumstance not disclosed in this Agreement or in the documents furnished in connection herewith (other than
general economic conditions) which does, or in the future could, have a Material Adverse Effect.
3.7 Financial Statements. Borrower has furnished to Lender financial statements, satisfactory to
Lender in Lender’s sole discretion, showing Borrower’s financial condition as of the end of Borrower’s most
recently completed fiscal year which statements represent fairly the results of its operations and transactions as of
the dates and for the period referred to and have been prepared in accordance with sound accounting principles.
From the date of such financial statements to the date of the execution of this Agreement, there has not been any
Material Adverse Effect or any fire, explosion, accident, flood, drought, storm, earthquake, condemnation, statutory
or regulatory change, act of God, or act of public enemy or other casualty, whether or not insured, which would
cause a Material Adverse Effect.
3.8 Tax Returns, Borrower has duly filed all federal and other tax returns required to be filed and has
paid all taxes required by such returns through its latest fiscal year end, and has not received any assessments by the
Internal Revenue Service or other taxing authority for additional unpaid taxes.
39 ERISA Matters. Except in compliance with all applicable laws and regulations, no Pension Plan
has been terminated or partially terminated or is insolvent or in reorganization, nor have any proceedings been
instituted to terminate or reorganize any Pension Plan; neither Borrower nor any Subsidiary has withdrawn from any
Pension Plan, nor has a condition occurred which if continued would result in a complete or partial withdrawal;
neither Borrower nor any Subsidiary has incurred any withdrawal liability to any Pension Plan; neither Borrower nor
any Subsidiary has incurred any liability to the Pension Benefit Guaranty Corporation other than for required
insurance premiums which have been paid when due; no Reportable Event has occurred; and no Pension Plan or
other “employee pension benefit plan” as defined in Section 3 of ERISA to which Borrower or any Subsidiary is a
party has an “accumulated funding deficiency.” Each Pension Plan and each other “employee benefit plan” as
defined in Section 3(2) of ERISA to which Borrower or any Subsidiary is a party is in substantial compliance with
ERISA, and no such plan, or any administrator, trustee or fiduciary thereof has engaged in a prohibited transaction
described in Section 406 of ERISA or in Section 4975 of the Internal Revenue Code.
3.10 Solvency. Borrower is not insolvent as defined in any applicable state or federal statute, nor will
Borrower be rendered insolvent by the execution and delivery of this Agreement and the other Loan Documents to
Lender. After the making of each Loan hereunder, Borrower reasonably expects to (a) be able to pay its debts as
they become due, (b) have funds and capital sufficient to carry on its business and all businesses in whic! it is about
to engage, and (c) own property having a value at both fair valuation and at fair salable value in the ordinary course
of Borrower’s business greater than the amount required to pay its debts as they become due.
3.11 Federal Reserve Regulations. Borrower is not engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No part of
the proceeds of the Loans will be used, directly or indirectly, for a purpose which violates any law, rule or regulation
of any governmental body, including without limitation the provisions of Regulations U or X of the Board of
Governors of the Federal Reserve System, as amended. No part of the proceeds of the Loans will be used, directly
or indirectly, to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or
carrying any Margin Stock,
{04099755;v1 }
DocuSign Envelope ID: 24C26591-B788-4835-9A7F-85A7B3ABEA02
3.12 Enyironmental Matters, To the knowledge of Borrower: (a) No above ground or underground
storage tanks containing Hazardous Substances are or have been located on any property owned, leased or operated
by Borrower and each Subsidiary; (b) No property owned, leased or operated by Borrower or any Subsidiary is or
has been used for the unpermitted or unauthorized treatment, storage or disposal of Hazardous Substances; (c) No
material Release of a Hazardous Substance has occurred or is threatened on, at, from or, near any property owned,
leased or operated by Borrower or any Subsidiary that will now or in the future (based on Environmental Laws
currently in effect) require (i) remedial or corrective action, removal, monitoring or closure pursuant to any
Environmental Law currently in effect or (ii) Borrower or any Subsidiary to incur costs pursuant to the terms or
conditions of any lease; (d) Neither Borrower nor, any Subsidiary is subject to any existing, pending or threatened
suit, claim, notice of violation or request for information under any material Environmental Law; and (e) Borrower
and each Subsidiary is in compliance in all material respects with, and have obtained all Environmental Permits
required by all Environmental Laws.
3.13 Prohibited Person Compliance. Borrower warrants, represents and covenants that neither
Borrower nor any Guarantor nor any of their respective Affiliates is or will be a Person (a) that is listed in the Anne
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805 WOOSTER, LLC., A CALIFORNIA LIMITED LIABILITY COMPANY VS BRETT HYMAN, AN INDIVIDUAL
Jul 26, 2024 |
23STCV27912
Case Number:
23STCV27912
Hearing Date:
July 26, 2024
Dept:
50
Superior Court of California
County of Los Angeles
Department 50
805 WOOSTER, LLC
,
Plaintiff,
vs.
BRETT HYMAN
,
et al
.,
Defendants.
Case No.:
23STCV27912
Hearing Date:
July 26, 2024
Hearing Time:
10:00 a.m.
[TENTATIVE] ORDER RE:
MOTION TO BE RELIEVED AS COUNSEL
Carlos A. LLoreda, Jr. of The Law Office of Carlos A. LLoreda, Jr.
(Counsel) moves to be relieved as counsel of record for Defendant
Brett Hyman.
While Counsel has provided sufficient reason for withdrawal, Items 5, 6, and 7 of the proposed order
(Form MC-053)
are blank.
If Counsel provides the Court with a revised order prior to the hearing, the Court will grant the motion.¿
Counsel is ordered to give notice of this order.¿
DATED:
July 26, 2024
________________________________
Hon. Teresa A. Beaudet
Judge, Los Angeles Superior Court
Ruling
MARTIN HUTTO VS CITY OF TORRANCE, A MUNICIPAL CORPORATION, ET AL.
Jul 26, 2024 |
23TRCV01212
Case Number:
23TRCV01212
Hearing Date:
July 26, 2024
Dept:
B
Superior Court of
California
County
of Los Angeles
Southwest District
Torrance Dept. B
MARTIN HUTTO,
Plaintiff,
Case No.:
23TRCV01212
vs.
[TENTATIVE] RULING
CITY OF TORRANCE,
Defendant.
Hearing Date:
July 26, 2024
Moving Parties:
Defendant City of Torrance
Responding Party:
Plaintiff Martin Hutto
(1)
Motion to Compel Further Responses to Special Interrogatories, Set One
(2)
Motion to Compel Further Responses to Requests for Production of Documents, Set One
The Court considered the moving, opposition, and reply papers.
RULING
The motions are GRANTED.
Plaintiff Martin Hutto is ordered to serve further responses to defendants Special Interrogatories, Set One, Nos. 47, 49, 54, 56, 58, 60, 62, 64, 67, 73, 84, 86, and 90 and to defendants Request for Production of Documents, Nos. 1-2, 5-7, 14-25, 27-37, 39-40, 42-43, 45-49, 51-53, 58, and 60 within twenty days.
BACKGROUND
On April 19, 2023, plaintiff Martin Hutto filed a complaint against City of Torrance and Torrance Police Department for (1) violation of POBRA, (2) declaratory relief, and (3) Labor Code §1102.5.
On April 25, 2023, the court (Judge Frank) issued a TRO on April 25, 2023.
On September 15, 2023, the court issued a preliminary injunction.
LEGAL AUTHORITY
45-Day Rule
:
This motion must be served within 45 days after service of the response in question (extended if served by mail, overnight delivery, or fax; see CCP §1013); otherwise, the demanding party waives the right to compel any further response to the CCP §2031.010 demand.
CCP §§2031.310(c), 2016.050; see
Sperber v. Robinson
(1994) 26 Cal. App. 4th 736, 745.
The 45-day time limit is mandatory and jurisdictional.
Sexton v. Superior Court
(1997) 58 Cal. App. 4th 1403, 1410.
The parties, however, can also agree in writing on a specific later date by which to file the motion to compel.
CCP §2031.310(c).
Meet-and-Confer Requirement
:
The motion to compel further responses must be accompanied by a declaration showing a reasonable and good faith attempt to resolve the issues outside of court (so-called meet and confer).
CCP §§2016.040, 2031.310(b)(2).
Separate Statement
:
Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement.
This includes a motion to compel further responses to demand for inspection of documents or tangible things.
CRC Rule 3.1020(a)(3).
Interrogatories
CCP §2030.300 states:
(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:
(1) An answer to a particular interrogatory is evasive or incomplete. . . . (3) An objection to an interrogatory is without merit or too general.
(b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories. . . .
CCP §2030.220 states:
(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.
(b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.
(c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.
CCP §2030.230 states:
If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. . . .
CCP §2030.010(b) provides:
An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based.
An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on
information obtained or legal theories developed in anticipation of litigation or in preparation for
trial.
Request for Production of Documents
On receipt of a response to an inspection demand, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that any of the following apply:
(1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general.
CCP § 2031.310(a).
A statement of compliance shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.
CCP § 2031.220.
A representation of inability to comply with [a] particular demand for inspection . . . shall affirm that a diligent search and reasonable inquiry has been made in an effort to comply with that demand.
This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.
This statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.
CCP § 2031.230.
A motion to compel further response to requests for production shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.
CCP § 2031.310(b)(1).
To establish good cause, the burden is on the moving party to show both:
[1]
Relevance to the subject matter
(e.g., how the information in the documents would tend to prove or disprove some issue in the case);
and
[2]
Specific facts justifying discovery
(e.g., why such information is necessary for trial preparation or to prevent surprise at trial).
The fact that there is
no alternative source
for the information sought is an important factor in establishing good cause for inspection.
But it is
not
essential in every case.
Weil & Brown,
Civil Procedure Before Trial
, 8:1495.6 (citations omitted).
Declarations are generally used to show the requisite good cause for an order to compel inspection.
The declarations must contain specific facts rather than mere conclusions.
Id.
at 8:1495.7 (citation omitted).
The declarations may be on information and belief, if necessary.
However, in such cases, the specific facts supporting such information and belief (the sources of the information) must also be alleged.
Id.
at 8:1495.8 (citation omitted).
Most declarations are made by the attorney for the moving party, who is usually more familiar with the relevancy and specific facts constituting good cause for inspection.
Id.
at 8:1495.9.
If good cause is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure (the same as on motions to compel answers to interrogatories or deposition questions. . . ).
Id.
at 8:1496 (citation omitted).
DISCUSSION
Defendant City of Torrance requests that the Court compel plaintiff to respond further to Special Interrogatories, Set One, Nos. 47, 49, 54, 56, 58, 60, 62, 64, 67, 73, 84, 86, and 90 and Request for Production of Documents, Set One, Nos. 1-2, 5-7, 14-25, 27-37, 39-40, 42-43, 45-49, 51-53, 58, and 60.
The Court notes only the requests that remain at issue based on the reply.
In the reply, the City withdrew its motion as to Special Interrogatories, Nos. 1-46, 48, 50-53, 55, 57, 59-59, 61, 63, 65-66, 68-72, 74, 83, 85, 87-89, and 91-102 and Requests for Production of Documents, Nos. 3-4, 8-13, 26, 38, 41, 44, 50, and 54-57 based on plaintiff providing supplemental responses.
On December 19, 2023, defendant served its discovery requests.
On February 12, 2024, plaintiff served responses and objections.
On July 1, 2024, pursuant to joint stipulation and order, the hearing on the motions was continued to allow the parties to reach a stipulation regarding the discovery and use in the litigation of plaintiffs confidential police officer personnel records and information, and protective order, without the need for a noticed Pitchess motion.
The complaint alleges that that plaintiff was investigated and given educational reminders in connection with two arrests he made.
Plaintiff apprehended suspects in a catalytic converter theft on May 17, 2021 and commented to one of the arrestees, Welcome to Torrance.
Plaintiff was investigated for the comment and invoked his rights under the Public Safety Officers Procedural Bill of Rights Act (POBRA) and/or the Meyers-Milias Brown Act, including use of a representative of his choice.
Defendants ultimately concluded the investigation and gave plaintiff an educational reminder for misconduct based on the Welcome to Torrance comment.
Plaintiff arrested a suspect who was disturbing the peace on March 4, 2022.
During the arrest,
plaintiff used force against the suspect, who ultimately stabbed plaintiffs partner in the clavicle
area with a pen and struck plaintiff in the head.
Plaintiff was administratively investigated for his use of force during the arrest.
Defendant ultimately concluded that plaintiff should be given an educational reminder to be more thorough in his reports of use of force.
Plaintiff filed a personnel complaint against Chief Hart for inappropriate comments and social media posts on November 2, 2022.
Plaintiff alleges Torrance Police Department revived the Internal Affairs investigation against him after his complaint.
Plaintiff alleges defendants violated his rights under POBRA, including by failing to provide proper notice of the nature of the investigations, subjecting plaintiff to punitive action and/or threatening him with punitive action for exercising his rights under POBRA and placing comments adverse to his interest in his personnel file. Plaintiff also alleges that defendants committed whistleblower retaliation in response to his complaints about Chief Harts inappropriate comments and social media posts.
Special interrogatories
Defendant contends that Special Interrogatories, Nos. 47, 49, 54, 56, 58, 60, 62, 64, 67, 73, 84, 86, and 90 remain at issue because they do not implicate confidential peace officer personnel information and that plaintiffs Pitchess objections are without merit.
Defendant also argues that plaintiffs response to Nos. 60, 62, 64, 73, 84, 86, and 90 directing defendant to other documents is improper under CCP §2030.230 because the interrogatories do not necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from.
In the opposition, plaintiff contends that the discovery requests were improperly served because they were sent via email although the parties had not stipulated to email service.
Plaintiff also argues that the motion was filed untimely on April 2, 2024.
In reply, defendant contends that its discovery requests were properly electronically served pursuant to CRC Rule 2.251(c).
Moreover, defendant argues, the motion was timely filed on April 2, 2024 because April 1 was a court holiday.
The Court finds that the request was properly served and that the motion was timely filed. The Court also finds that plaintiffs objections lack merit, including based on Pitchess.
The remaining special interrogatories at issue do not implicate Pitchess for the reasons argued by defendant.
Further, plaintiffs responses under CCP §2030.230 are improper.
The motion is thus GRANTED.
Requests for production of documents
Defendant asserts that Request for Production of Documents, Set One, Nos. 1-2, 5-7, 14-25, 27-37, 39-40, 42-43, 45-49, 51-53, 58, and 60 remain at issue.
Defendant argues that as to the remaining requests, plaintiff has failed to state whether plaintiff possesses additional documents that do not constitute protected police officer personnel records and information and has failed to produce any such non-Pitchess record documents, in compliance with CCP §2031.240.
Under CCP §2031.240, (a) If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.
Defendant argues that even if Pitchess applies to any responsive peace officer personnel records, plaintiff still has the ability to either identify and produce any non-personnel records and information, or state he cannot comply because he has no records.
Further, defendant asserts, the City is entitled to obtain documents within plaintiffs possession, custody, or control, irrespective of whether the City may already possess or have access to them, citing to CCP §2031.010.
Defendant further argues that plaintiffs objections that certain defined terms (communication, relate, and refer) are overly broad and ambiguous are without merit because none of the Citys requests utilize the defined term communication and only Request Nos. 54-60 include refer or relate, and such requests are limited in scope.
In opposition, plaintiff argues that a Pitchess motion was and is required as the requests seek personnel files.
Plaintiff also argues that the requests were improperly served via email and that the motion was untimely filed.
The Court finds that the requests were properly served, and the motion was timely filed.
The Court also finds that plaintiffs responses do not comply with CCP §2031.240 and that plaintiffs objections lack merit as to non-Pitchess documents.
The motion is GRANTED.
Sanctions
Under CCP § 2023.030(a), [t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
Under CCP § 2023.010, an example of the misuse of the discovery process is (d) Failing to respond or to submit to an authorized method of discovery.
Sanctions are mandatory in connection with motions to compel further responses against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
CCP § §2030.300(d), 2031.310(h).
Cal. Rules of Court, Rule 3.1348(a) states:
The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.
The Court denies each partys request for sanctions.
ORDER
The motions are GRANTED.
Plaintiff Martin Hutto is ordered to serve further responses to defendants Special Interrogatories, Set One, Nos. 47, 49, 54, 56, 58, 60, 62, 64, 67, 73, 84, 86, and 90 and to defendants Request for Production of Documents, Nos. 1-2, 5-7, 14-25, 27-37, 39-40, 42-43, 45-49, 51-53, 58, and 60 within twenty days.
Defendant is ordered to give notice of ruling.
Ruling
DAVIS TIVAS, ET AL. VS FRANK RODRIGUEZ GARCIA
Case Number:
21STCV05696
Hearing Date:
July 29, 2024
Dept:
29
Motions to Compel the Deposition of Plaintiffs filed by Defendant Frank Rodriguez Garcia.
Tentative
The motions are denied without prejudice.
Background
On February 16, 2021, Davis Tivas and Santos Tivas (collectively Plaintiffs) filed a complaint against Frank Rodriguez Garcia (Defendant) for negligence arising out of an automobile accident occurring on February 15, 2019.
On March 29, 2023, Defendant filed his answer.
On June 26, 2024, Defendant filed these motions to compel the deposition of Plaintiffs. Defendant also seeks sanctions.
No opposition has been filed.
Legal Standard
Any party may obtain discovery & by taking in California the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) Code of Civil Procedure sections 2025.210 through 2025.280 provide the requirements for (among other things) what must be included in a deposition notice, when and where depositions may be taken, and how and when the notice must be served.
The service of a deposition notice & is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying. (
Id.
, § 2025.280, subd. (a).)
Section 2025.410, subdivision (a), requires any party to serve a written objection at least three days before the deposition if the party contends that a deposition notice does not comply with the provisions of sections 2025.210 through 2025.280.
Section 2025.450, subdivision (a), provides:
If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for¿inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponents attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.
Any such motion to compel must show good cause for the production of documents and, when a deponent has failed to appear, the motion must be accompanied by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (
Id.
, subd. (b).)
When a motion to compel is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (
Id.
, § 2025.450, subd. (g)(1).)
Discussion
Defendant served Plaintiffs with notices of their depositions, with both scheduled for June 18, 2024. (Holly Decls., ¶ 3 & Exhs. A.)
Defendant reached out prior to the deposition to confirm, but Plaintiff did not serve any objection and did not appear. (Id., ¶¶ 4-6.)
Defendant now moves for an order compelling Plaintiffs to attend their depositions. Defendant is certainly entitled to take Plaintiffs deposition under the Civil Discovery act, but to obtain a court order compelling the depositions, Defendant must comply with all statutory requirements. Here, Defendant has not done so. Specifically, Defendant presents no evidence that, following the nonappearances, he reached out to Plaintiff to inquire about the nonappearance. (Code Civ. Proc., § 2025.450, subd. (b).)
Accordingly, the motion is denied without prejudice.
Conclusion
The Court DENIES Defendants motion to compel the deposition of Plaintiffs without prejudice.
Moving party to give notice.
Ruling
WILLIAM FARMER, ET AL. VS LISA THELMA LONG
Jul 26, 2024 |
19BBCV00384
Case Number:
19BBCV00384
Hearing Date:
July 26, 2024
Dept:
NCB
Superior Court of California
County of Los Angeles
North Central
District
Department B
william farmer
,
et al.
,
Plaintiffs,
v.
lisa thelma long,
Defendant.
Case No.:
19BBCV00384
Hearing Date:
July 26, 2024
[
TENTATIVE] order RE:
motion for an order assigning defendants interest in earnings
BACKGROUND
A.
Allegations
Plaintiffs William Farmer and Jennifer Farmer (Plaintiffs) allege that on April 4, 2018, they entered into a written Promissory Note agreement with Defendant Lisa Thelma Long (Defendant).
Plaintiffs allege that on April 20, 2018, Defendant failed to repay the loan.
Plaintiffs allege that they suffered $50,000 plus interest at the legal rate of $10% since April 4, 2018.
The complaint, filed May 9, 2019, alleges causes of action for: (1) breach of contract; (2) common counts; and (3) fraud.
B.
Relevant Background
On September 10, 2019, the default of Defendant was entered.
On August 11, 2020, default judgment was entered against Defendant in the amount of $109,073.00.
On August 13, 2020, Plaintiffs filed a writ of execution (money judgment) for the amount of $109,157.76, which was returned and filed on August 14, 2020.
On January 7, 2021, Plaintiffs filed a writ of execution (money judgment) for the amount of $113,008.64.
On March 30, 2021, Plaintiffs filed an Abstract of Judgment.
On June 4, 2024, Plaintiffs filed a writ of execution (money judgment) for the amount of $150,267.46.
C.
Motion on Calendar
On June 21, 2024, Plaintiff filed a motion for an order assigning Defendants interest in earnings.
The Court is not in receipt of an opposition brief.
LEGAL STANDARD
CCP § 695.010(a) states:
Except as otherwise provided by law, all property of the judgment debtor is subject to enforcement of a money judgment.
CCP § 708.510 provides in relevant part:
(a) Except as otherwise provided by law, upon application of the judgment creditor on noticed motion, the court may order the
judgment debtor to assign to the judgment creditor
or to a receiver appointed pursuant to Article 7 (commencing with Section 708.610) all or part of a right to payment due or to become due, whether or not the right is conditioned on future developments, including but not limited to the following types of payments:
(1) Wages due from the federal government that are not subject to withholding under an earnings withholding order.
(2) Rents.
(3) Commissions.
(4) Royalties.
(5) Payments due from a patent or copyright.
(6) Insurance policy loan value.
(b) The
notice
of the motion shall be served on the judgment debtor. Service shall be made personally or by mail.
(c) Subject to subdivisions (d), (e), and (f), in determining whether to order an assignment or the amount of an assignment pursuant to subdivision (a), the court may take into consideratio
n all relevant factors
, including the following:
(1) The reasonable requirements of a judgment debtor who is a natural person and of persons supported in whole or in part by the judgment debtor.
(2) Payments the judgment debtor is required to make or that are deducted in satisfaction of other judgments and wage assignments
, including earnings assignment orders for support
.
(3) The amount remaining due on the money judgment.
(4) The amount being or to be received in satisfaction of the right to payment that may be assigned.
(d) A right to payment may be assigned pursuant to this article
only to the extent necessary to satisfy the money judgment.
(CCP § 708.510(a)-(d).)
When an application is made pursuant to Section 708.510 or thereafter, the judgment creditor may apply to the court for an order restraining the judgment debtor from assigning or otherwise disposing of the right to payment that is sought to be assigned. The application shall be made on noticed motion if the court so directs or a court rule so requires. Otherwise, it may be made ex parte.
(CCP § 708.520(a).)
The court may issue an order pursuant to this section upon a showing of need for the order. The court, in its discretion, may require the judgment creditor to provide an undertaking.
(CCP § 708.520(b).)
The court may modify or vacate the order at any time with or without a hearing on such terms as are just.
(CCP § 708.520(c).)
DISCUSSION
Plaintiffs/Judgment Creditors move for an assignment order against Defendant, assigning
Defendants interest in any earnings for acting and/or directing in any performance, whether television, movies, commercials, plays, or other forms of media and all payment thereunder, to Plaintiffs to the extent necessary to pay the judgment in full, including interest thereon.
Plaintiffs also seek an order restraining Defendant, any agent, employee, or attorney of Defendant, whether alone or in concert, from encumbering, assigning, disposing or spending her interest in the right to be assigned listed above.
In support of the motion, Plaintiffs provide the declaration of counsel Derek L. Tabone. Mr. Tabone states that nothing has been collected on the default judgment entered on August 14, 2020.
(Tabone Decl., ¶¶4-5.)
He states that the most recent writ of execution issued on June 4, 2024 is for the amount
of $150,267.46.
(
Id.
, ¶6.)
Counsel states that Defendant is, among other things, an actress who does work in commercials, movies, and television shows and her IMDB website shows that she has worked in multiple movies or television shows every year, as well as doing voice overs in over 170 commercials.
(
Id.
, ¶¶7-8, Ex. C.)
The website states that Defendant has 3 theatrical agents: Stewart Talent, Elev8, and Taylor Talent Services.
(
Id.
, ¶9.)
Plaintiffs seek an order assigning all of Defendants right to payment for her movie, television, and commercial work until Defendants judgment has been paid.
(
Id.
, ¶10.)
The Court considers the factors under CCP § 708.510(c).
First, Defendant is a natural person.
There is no information on whether she is supporting any other persons. As the motion is unopposed, Defendant has not provided any statements that she is supporting any other persons.
Second, it does not appear that Defendant has made any effort to make payments towards the judgment.
According to Mr. Tabone (Plaintiffs counsel), the judgment is still unpaid.
Plaintiffs have not indicated whether there are any other assignment orders or wage assignments, etc. and Defendant has not filed an opposition to provide such information.
Third, Plaintiffs argue that Defendant owes $150,267.46, based on the June 4, 2024 writ of execution.
Fourth, Plaintiffs seek an assignment of Defendants right to payment for her movie, television, and commercial work until Defendants judgment has been paid.
The approximate amount of how much Defendant is paid for her acting work is not provided.
Since the judgment has not been satisfied and the motion is not opposed, there are grounds to issue an assignment order pursuant to CCP § 708.510.
The Court hereby grants Plaintiffs request for assignment orders.
CONCLUSION AND ORDER
Plaintiffs William Farmer and Jennifer Farmers
motion for an order assigning
Defendant Lisa Thelma Longs interest in her earnings from her
movie, television, and commercial work is granted.
Defendant, as well as
any agent, employee, or attorney of Defendant, whether alone or in concert, shall be restrained from encumbering, assigning, disposing or spending her interest in the aforementioned earnings.
Plaintiffs shall give notice of this order.
DATED: July 26, 2024
___________________________
John Kralik
Judge of the Superior Court
Ruling
DAVID ODAY, ET AL. VS 118 WADSWORTH AVENUE HOMEOWNERS ASSOCIATION, ET AL.
Jul 29, 2024 |
23STCV24766
Case Number:
23STCV24766
Hearing Date:
July 29, 2024
Dept:
47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE:
July 29, 2024
TRIAL DATE:
NOT SET
CASE:
David Oday, et al. v. 118 Wadsworth Avenue Homeowners Association, et al.
CASE NO.:
23STCV24766
MOTION TO DISSOLVE PRELIMINARY INJUNCTION
MOVING PARTY
: Defendant 118 Wadsworth Avenue Homeowners Association
RESPONDING PARTY(S)
: Plaintiffs David Oday and Lakota Patrick Ford
CASE HISTORY
:
·
10/11/23: Complaint filed.
·
01/10/24: First Amended Complaint filed.
·
03/01/24: Cross-Complaint filed.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is a breach of contract and habitability defect action. Plaintiffs allege that Defendants refused to replace the roof of Plaintiffs condominium, causing extensive water damage and mold throughout the unit. Plaintiffs allege that Defendants improperly issued special assessments in violation of the operative covenants, conditions, and restrictions on the property, and retaliated against Plaintiffs for raising these issues.
Defendant 118 Wadsworth Avenue Homeowners Association moves to dissolve the preliminary injunction entered on February 22, 2024 because of Plaintiffs failure to post the bond required.
TENTATIVE RULING:
Defendants Motion to Dissolve Preliminary Injunction is DENIED, as Plaintiff David Oday has served and filed an agreement authorizing the deposit to be applied to enforce the liability of the principal, pursuant to Code of Civil Procedure section 995.710(c).
DISCUSSION:
Defendant 118 Wadsworth Avenue Homeowners Association moves to dissolve the preliminary injunction entered on February 22, 2024 because of Plaintiffs failure to post the bond required.
Legal Standard
Code of Civil Procedure section 533 states:
In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.
(Code Civ. Proc. § 533.) Modification of a preliminary injunction rests in the sound discretion of the trial court upon a consideration of all the particular circumstances of each individual case. (
Union Interchange, Inc. v. Savage
(1959) 52 Cal.2d 601, 606.) The party seeking modification has the burden of proving that the request is justified. (See
Loeffler v. Medina
(2009) 174 Cal.App.4th 1495, 1504.)
Analysis
Defendant 118 Wadsworth Avenue Homeowners Association moves to dissolve the preliminary injunction entered on February 22, 2024 on the grounds that Plaintiffs failed to post the undertaking of $70,416.09 ordered by the Court. (See February 22, 2024 Minute Order.)
Plaintiffs, in opposition, state that payment in the amount specified by the Courts order was deposited with the Court on June 26, 2024, with notice given to Defendant the next day. (Declaration of Scott J. Kalter ISO Opp. Exhs. 1-2.) In reply, Defendant contends that Plaintiffs deposit of the funds to the Court is effective as a posting of a bond under Code of Civil Procedure section 995.710, but only if the deposit is accompanied by an agreement executed by the principal authorizing the officer to collect, sell, or otherwise apply the deposit to enforce the liability of the principal on the deposit. (Code Civ. Proc. § 995.710(c).) Defendant contends that Plaintiffs have not executed such an agreement, and, therefore, that the injunction should be dissolved.
The Court concurs with Defendant that an authorization to dispose of the funds to satisfy liability is required for Plaintiffs deposit to be considered posting of the bond under section 995.710. In response to the Courts prior tentative ruling, Plaintiff David Patrick Oday has submitted an agreement authorizing the deposit to be applied to enforce the liability of the principal, pursuant to Code of Civil Procedure section 995.710(c). Accordingly, the Court will deny the motion to dissolve the preliminary injunction.
CONCLUSION
:
Accordingly, Defendants Motion to Dissolve Preliminary Injunction is DENIED given that Plaintiff David Patrick Oday has served and filed an agreement authorizing the deposit to be applied to enforce the liability of the principal, pursuant to Code of Civil Procedure section 995.710(c).
Moving party to give notice.
IT IS SO ORDERED.
Dated: July 29, 2024 ___________________________________
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at
Smcdept47@lacourt.org
by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
Ruling
SIRANUSH AKLYAN, ET AL. VS STATE OF CALIFORNIA, ET AL.
Jul 26, 2024 |
23BBCV01986
Case Number:
23BBCV01986
Hearing Date:
July 26, 2024
Dept:
NCB
Superior Court of California
County of Los Angeles
North Central
District
Department B
siranush aklyan
,
et al.
,
Plaintiffs,
v.
state of california,
et al.
,
Defendants.
Case No.:
23BBCV01986
Hearing Date:
July 26, 2024
[
TENTATIVE] order RE:
motion to strike
BACKGROUND
A.
Allegations
Plaintiffs Siranush Aklyan, Aper G. Agakhanian, Grigor Choginyan, and Lena Ananyan (Plaintiffs) allege that on February 25, 2023 at approximately 1:30 a.m., Siranush Aklyan was operating her vehicle in the number 1 of 5 lanes on the I-5 northbound freeway.
Aper G. Agakhanian, Grigor Choginyan, and Lena Ananyan were passengers int the vehicle.
Plaintiffs allege that they became trapped underwater following a heavy rainfall on the Golden State I-5 freeway.
Plaintiffs allege that a vehicle
maneuvering the number two (2) lane initiated the passage adjacent to their vehicle, precipitating the generation of a wave, thereby inducing a hydrodynamic disturbance. This perturbation induced an unintended rotational motion of the Plaintiffs' vehicle in a counter-directional manner, leading to its eventual submersion. In a bid to evacuate the vehicle, the Plaintiffs made several unsuccessful attempts to unlatch the doors due to the exerted hydrostatic pressure, rendering them inoperable. Subsequently, the Plaintiffs successfully extricated themselves from the vehicle by manipulating one of the windows and effecting their exit through said window.
(Compl., ¶7.)
Plaintiffs allege that the roadway was dangerous for drivers as the surface had insufficient traction and friction, had improper grooving and treatment of the pavement, used improper materials in the design/construction/maintenance/repair of the roadway, etc.
Plaintiffs allege that Defendants State of California and Caltrans District 7 owned, occupied, leased, used, regulated, controlled, managed, maintained, operated, supervised, repaired, and possessed the portion of the freeway at issue.
The complaint, filed August 25, 2023, alleges causes of action for: (1) statutory liability/dangerous condition of public property; and (2) negligence.
B.
Motion on Calendar
On June 14, 2024, Defendant the People of the State of California, acting by and through the Department of Transportation (Defendant) (erroneously named as State of California and Caltrans District 7) filed a motion to strike portions of the complaint.
On July 15, 2024, Plaintiffs filed an opposition brief.
On July 24, 2024, Defendant filed a reply brief.
DISCUSSION
Defendant moves to strike portions of the complaint at paragraph 24 (page 9, line 5).
The specific language includes references to Government Code, §§ 815.2(a), 820(a), and 840.2.
They argue that they do not dispute that Plaintiffs properly plead a cause of action for dangerous condition of public property, but that the allegations for vicarious liability and negligence by referencing the aforementioned sections is improper.
(Reply at p.5.)
First, Defendant argues that sections 815.2(a) and 820(a) regarding vicarious liability are improper.
Government Code, § 815.2(a) states:
A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.
Government Code, § 820(a) states:
Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.
Defendant argues that Plaintiffs have not specifically identified any employee of Defendant for which Defendant could be vicariously liable and that, even if Plaintiffs were able to identify employees, its employees are immune such that Defendant cannot be vicariously liable.
Defendant cites to
Yee v. Superior Court
(2019) 31 Cal.App.5th 26, 40:
A public entity cannot be held vicariously liable for actions of its employees that are actually acts of the entity itself, albeit performed by necessity by employees or agents. Vicarious liability depends on the employee being independently liable for the act, the entity becoming liable because the employee's act was taken within the scope of his or her employment.
(
Yee
, supra, 31 Cal.App.5th at 40.)
Defendant argues that a claim for dangerous condition of public property can only lie pursuant to Government Code, §§ 830 to 835.4.
Second,
Defendant argues that section 840.2 for direct employee liability does not govern dangerous conditions of public property actions.
Government Code, § 840.2 states:
An employee of a public entity is liable for injury caused by a dangerous condition of public property if the plaintiff establishes that the property of the public entity was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
(a) The dangerous condition was directly attributable wholly or in substantial part to a negligent or wrongful act of the employee and the employee had the authority and the funds and other means immediately available to take alternative action which would not have created the dangerous condition; or
(b) The employee had the authority and it was his responsibility to take adequate measures to protect against the dangerous condition at the expense of the public entity and the funds and other means for doing so were immediately available to him, and he had actual or constructive notice of the dangerous condition under Section 840.4 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
(Govt Code, § 840.2.)
Again, Defendant argues that Plaintiffs have not identified any specific individual against whom a section 840.2 claim could be brought.
Plaintiffs argue that they are not required to plead the name of the specific individuals prior to undergoing discovery.
Plaintiffs rely on
C.A. v. William S. Hart Union High School Dist.
(2012) 53 Cal.4th 861, 872, wherein
the California Supreme Court stated:
The complaint, it is true, does not identify by name or position the District's employees, administrators and/or agents who allegedly failed to properly hire, train and supervise Hubbell. But the District cites no statute or decision requiring a plaintiff to specify
at the pleading stage
which of the defendant's employees committed the negligent acts or omissions for which a public entity is allegedly liable under section 815.2. To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged. [Citation.]
(
C.A.
, supra, 53 Cal.4th at 872; see
Perez v. City of Huntington Park
(1992) 7 Cal.App.4th 817, 820821 [
The plaintiff may be unable to identify which employee committed the wrongful act, but this is not fatal to the employer's liability, if the evidence establishes that some employee in the scope of employment committed the wrongful act.].)
Although the complaint does not name specific individuals who were employed by Defendant, the complaint alleges that Defendant and Does 1-100 knew of the dangerous and defective conditions of the roadway, knew that the plan or design of the roadway had become dangerous due to the change in the conditions of the roadway, failed to warn drivers or take other actions, etc.
(Compl., ¶¶14-19.)
Plaintiffs allege that the dangerous conditions and acts/omissions of Defendant and Does 1-100 and their management, administrators, designers, planners, engineers, maintenance personnel, inspectors, and/or other employees, staff, agents, or contractors were done within the course and scope of their duties.
(
Id.
, ¶21.)
At this time, the Court will not preemptively strike references to section 815.2(a) and 820 for vicarious liability as there may be a basis for independent liability against Defendants employee(s) and their actions that were undertaken during the scope of their employment.
The Court finds that the allegations are sufficiently particular for the cause of action to go forward.
Similarly, section 840.2 is for direct liability against an employee of a public entity for a dangerous condition of public property.
Whether Plaintiff is able to discover the names of such employees later, amend the Doe designations, and prove this will have to be determined beyond the pleading stage.
As currently alleged, Plaintiffs have alleged sufficient facts against Defendant and specifically alleged the code sections that are at issue in this action; the identity of the particular individuals employed by Defendant is better left to be determined during the discovery process.
Finally, Defendant argues that public employees are immune from discretionary acts under Government Code, § 820.2, such that it cannot be vicariously liable for the actions or inactions of its employees.
Section 820.2 states:
Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.
While such an exception may exist, at this time, the Court will not prematurely determine if the exception applies to the facts of this case based on the pleadings alone.
Again, this is better addressed upon the consideration of evidence at the motion for summary judgment or trial stage.
The motion to strike is overruled.
CONCLUSION AND ORDER
Defendant the People of the State of California, acting by and through the Department of Transportations motion to strike is overruled.
Defendant is ordered to answer.
Defendant shall give notice of this order.
DATED: July 26, 2024
___________________________
John Kralik
Judge of the Superior Court
Ruling
24SMCP00171
Jul 25, 2024 |
24SMCP00171
Case Number:
24SMCP00171
Hearing Date:
July 25, 2024
Dept:
207 TENTATIVE RULING
DEPARTMENT
207
HEARING DATE
June 13, 2024, continued to July 25, 2024
CASE NUMBER
24SMCP00171
MOTION
Motion to Compel Arbitration
MOVING
PARTY
Petitioner Wasser, Cooper & Mandles P.C.
OPPOSING PARTY
(none)
BACKGROUND
Petitioner Wasser, Cooperman & Mandles P.C. (Petitioner) moves to compel Respondent Shazeen Shah (Respondent) to arbitration regarding a dispute over legal fees incurred in connection with Petitioners provision of legal services to Respondent in the matter, Marriage of Shah/Aschinger.
(Verified Petition at ¶ 1; Ex. A.)
The petition is unopposed.
MOTION TO COMPEL ARBITRATION LEGAL STANDARDS
[T]he advantages of arbitration include a presumptively less costly, more expeditious manner of resolving disputes.
It follows a party to a valid arbitration agreement has a contractual right to have its dispute with another party to the contract resolved quickly and inexpensively.
(
Henry v. Alcove Investment, Inc
. (1991) 233 Cal.App.3d 94, 99100 [cleaned up].)
Thus, on petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists.
(Code Civ. Proc., § 1281.2; see also
EFund Capital Partners v. Pless
(2007) 150 Cal.App.4th 1311, 1320 [the language in section 1281.2 compelling arbitration is mandatory].)
The right to compel arbitration exists unless the court finds that the right has been waived by a partys conduct, other grounds exist for revocation of the agreement, or where a pending court action arising out of the same transaction creates the possibility of conflicting rulings on a common issue of law or fact.
(Code Civ. Proc., § 1281.2, subds. (a)-(c).)
On a petition to compel arbitration, the trial court must first determine whether an agreement to arbitrate the controversy exists.
Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.
The party seeking arbitration can meet its initial burden by attaching to the petition a copy of the arbitration agreement purporting to bear the respondent's signature.
(
Bannister v. Marinidence Opco, LLC
(2021) 64 Cal.App.5th 541, 543-544 [cleaned up].)
The party seeking to compel arbitration must also plead and prove a prior demand for arbitration and a refusal to arbitrate under the agreement.
(
Mansouri v. Superior Court
(2010) 181 Cal.App.4th 633, 640-641.)
And while the moving party on a motion to compel arbitration bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, [a] party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination.
(
Ruiz v. Moss Bros. Auto Group, Inc.
(2014) 232 Cal.App.4th 836, 842 [cleaned up]; see also
Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC
(2012) 55 Cal.4th 223, 236 [The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability].)
ANALYSIS
As a threshold matter, [a] petition to compel arbitration is in essence a suit in equity to compel specific performance of a contract.
(
Frog Creek Partners, LLC v. Vance Brown, Inc.
(2012) 206 Cal.App.4th 515, 532.)
As such, a courts personal jurisdiction over the respondent requires compliance with the same service rules that apply for service of a summons and complaint in any other lawsuit.
(
Frey & Hogan Corp. v. Superior Court in and for City and County of San Francisco
(1936) 5 Cal.2d. 401, 403-404.)
Moreover, due process requires that a respondent be given written notice of the moving and supporting papers at least sixteen court days before the hearing.
(Code Civ. Proc., § 1005, subd. (b).)
Here, there is no proof of service indicating that the original Petition to Compel arbitration was ever served on Respondent in a manner that would give the Court personal jurisdiction to hear the matter.
Further, there is no proof of service indicating that the notice of the hearing was ever served on Respondent.
The Court continued the hearing to allow Petitioner to file a proof of service, but no proof of service has yet been filed.
The Court acknowledges that a Notice of Continuance was filed on June 14, 2024, but no proof of service attached to that notice.
CONCLUSION AND ORDER
Because the Court finds no proof of service demonstrating that Respondent was notified about this lawsuit or was given proper notice of the hearing, the Court denies without prejudice the Petition to Compel Arbitration.
Further, the Court continues that Case Management Conference to January 23, 2025 at 8:30 A.M. in Department 207.
Petitioner shall provide notice of the Courts order and file the notice with a proof of service forthwith.
DATED:
July 25, 2024
___________________________
Michael E. Whitaker
Judge of the Superior Court
Ruling
JERRY JAMGOTCHIAN, ET AL. VS COASTAL LAUNDROMAT, INC., ET AL.
Aug 01, 2024 |
23STCV31285
Case Number:
23STCV31285
Hearing Date:
August 1, 2024
Dept:
20
Tentative Ruling
Judge Kevin C. Brazile
Department 20
Hearing Date:
August 1, 2024
Case Name:
Jamgotchian, et al. v. Coastal Laundromat, Inc., et al.
Case No.:
23STCV31285
Matter:
Anti-SLAPP Motion
Moving Party:
Defendants Coastal, Bruce Nye, and Sonja Nye
Responding Party:
Unopposed
Notice:
OK
Ruling:
The Anti-SLAPP Motion is granted.
Coastal to give notice.
If counsel do not submit on the tentative, they are strongly
encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
In case no. BC674357, on February 7, 2023, a jury entered verdicts in favor of Plaintiffs DONE! Ventures, LLC (Done!) and Coastal Laundromat, Inc. (Coastal), and against Defendants Jerry Jamgotchian, El Segundo Plaza Associates L.P. (ESPA), and Theta Holding IV, Inc. (Theta) for Plaintiffs claims for interference with contract, negligent interference with prospective economic advantage, and breach of contract.
On May 8, 2023, the Court entered a judgment on the verdict.
On July 12, 2023, the Court ruled on a motion for new trial/JNOV, stating that the amount of punitive damages awarded by the jury was improper and that Coastal was either to stipulate to $525,000 or else the Court would grant a new trial only as to the amount of punitive damages. Coastal stipulated to taking less punitive damages.
On September 5, 2023, the Court ruled on Coastals motion for attorneys fees and prejudgment interest. Prejudgment interest was rejected, but the Court awarded
$357,673 in fees.
On February 6, 2024, the Court entered a final ruling denying Defendants motion to tax costs with respect to Done!. That ruling also rejected prejudgment interest for Done!.
On February 27, 2024, the Court entered an amended judgment, which reduced the amount of punitive damages to be obtained by Done! and indicated the amount of fees, costs, and prejudgment interest to be awarded as discussed above.
On March 27, 2024, the Court denied Defendants request to amend the February 27, 2024, judgment as follows: (1) amend title of the Courts February 27, 2024, judgment to read Final Judgment and not its current incorrect and misleading title, Amended Judgment, (2) Amend the date of the Courts award of post-judgment interest from May 8, 2023 (date of the Courts interim, non-final jury verdict judgment) to the date of final judgment, or February 27, 2024 (the date the Court signed final judgment in this case, erroneously entitled Amended Judgment, as above), as the May 8, 2023 interim judgment is void and no longer has any force and effect by operation of law. The Court also denied Defendants request to quash all outstanding levies issued under the Courts interim - and now void and unenforceable - May 8, 2023 jury verdict judgment.
On December 12, 2023, Jamgotchian, ESPA, and Theta filed the instant case, case no. 23STCV31285, against Coastal, Bruce Nye, and Sonja Nye for (1) slander of title, (2) quiet title, (3) defamation, (4) libel per se, (5) intentional interference with contractual relations, and (6) negligent interference with contractual relations. Essentially, Jamgotchian and his entities have now elevated their contentions about a premature judgment to separate lawsuits. The basis for all of their claims is that the judgment lien from BC674357 was invalid and premature, which has been rejected by the Court multiple times.
On February 27, 2024, Jamgotchian, ESPA, and Theta filed case no. 24STCV05004 against Done! for (1) slander of title, (2) quiet title, (3) defamation, (4) libel per se, (5) intentional interference with contractual relations, and (6) negligent interference with contractual relations.
On June 14, 2024, the Court related case nos. BC674357, 23STCV31285, and 24STCV05004.
Coastal and the Nyes now assert an Anti-SLAPP Motion or Special Motion to Strike the entirety of the Complaint pursuant to Code Civ. Proc. § 425.16.
Jamgotchian and his entities did not file an opposition.
Code of Civil Procedure section 425.16 sets forth the procedure governing anti-SLAPP motions. In pertinent part, the statute states, A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. (Code Civ. Proc. § 425.16(b)(1).) The purpose of the statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigants constitutional right of petition or free speech. (Code Civ. Proc. § 425.16(a);
Sylmar Air Conditioning v. Pueblo Contracting Services, Inc.
(2004) 122 Cal.App.4th 1049, 1055-1056.)
Courts employ a two-step process to evaluate anti-SLAPP motions. (
Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 61.) To invoke the protections of the statute, the defendant must first show that the challenged lawsuit arises from protected activity, such as an act in furtherance of the right of petition or free speech. (
Ibid
.) From this fact, courts presume the purpose of the action was to chill the defendants exercise of First Amendment rights. It is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits. (
Ibid
.) In determining whether the plaintiff has carried this burden, the trial court considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Code Civ. Proc. § 425.16(b)(2); see
Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260, 291 (
Soukup
).)
Protected Activity
To meet their burden for the first prong of the anti-SLAPP analysis, Defendants must demonstrate that the Complaints causes of action arise from protected activity. That is, it must be that defendants conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . the act underlying the plaintiffs cause or the at which forms the basis for the plaintiffs cause of action must itself have been an act in furtherance of the right of petition or free speech. (
Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 63 (internal citations omitted).)
An act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. (Code Civ. Proc. § 425.16(e).)
Here, all causes of action are premised on the enforcement proceedings in BC674357. Indeed, the Complaint states: Defendants actions in failing and refusing to withdraw, vacate and/or remove their premature and void Judgment Lien and Abstract(s) of Judgment are, were and continue to be made in bad faith and with specific malicious intention to harm and injure Plaintiffs, as they are knowingly made and maintained without any basis in law and in knowing violation of the Courts September 8, 2023 Minute Order. To date, Defendants have failed and refused to remove their premature and void Judgment Lien and/or Abstract(s) of Judgment and therefore is/are baseless, wrongful and financially damaging to Plaintiffs, and each of them. (Compl. ¶¶ 21-22.)
The actions taken to enforce the judgment in BC674357, particularly the filing of abstracts of judgment, are protected activity within the meaning of Code Civ. Proc. § 425.16(e)(1)-(2). (See, e.g.,
O'Neil-Rosales v. Citibank (S. Dakota) N.A.
(2017) 11 Cal.App.5th Supp. 1, 6. [
privileged or not, defendants acts of obtaining an abstract of judgment and recording it as a real property lien fell within the categories of section 425.16, subdivision (e).
Rusheen v. Cohen
,
supra
, 37 Cal.4th at p. 1056, 39 Cal.Rptr.3d 516, 128 P.3d 713 [ Any act includes communicative conduct such as the filing, funding, and prosecution of a civil action].)].)
Furthermore, the equitable claims at issue essentially challenge the force and effect of the judgment in BC674357, and this undoubtedly relates to protected petitioning activity. (See, e.g.,
Weeden v. Hoffman
(2021) 70 Cal.App.5th 269, 28687 [paragraphs 33, 38, and 45 set forth what Hoffman is alleged to have done that gives rise to the quiet title, cancellation of instrument, and slander of title causes of action; each of those paragraphs complains about Hoffman's recording of the 2018 Abstract of Judgment . . . . Hoffman has demonstrated that the conduct about which the Weedens complain . . . is Hoffman's conduct in obtaining and recording the 2018 Abstract of Judgment, which the Weedens concede is protected activity under Code of Civil Procedure section 425.16, subdivision (e)(2).].)
The Court concludes that Defendants have carried their burden to show that the Complaint arises from protected activity under CCP § 425.16(e)(1)-(2).
Minimal Merit
On the second component of the analysis, courts employ a summary-judgment-like procedure, accepting as true the evidence favorable to the plaintiff and evaluating the defendants evidence only to determine whether the defendant has defeated the plaintiffs evidence as a matter of law. (
Gerbosi v. Gaims, Weil, West & Epstein, LLP
(2011) 193 Cal.App.4th 435, 444.) In other words, the Court does not assess credibility, and the plaintiff is not required to meet the preponderance of the evidence standard. The Court accepts as true the evidence favorable to the plaintiff, who need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP. (
Soukup
, supra, 39 Cal.4th at p. 291.)
Here, the subject causes of action are premised on the assertion that the judgment lien arising from BC674357 was invalid because it was based on a premature judgment. This has been rejected at least a half-dozen times in BC674357. Jamgotchian and his entities are well aware of this Courts reasoning and can refer to the rulings in BC674357, all of which are incorporated herein by reference. Based on these rulings, the Court concludes that there is no possibility of Jamgotchian and his entities prevailing herein and that there are no triable issues of fact.
Thus, the Anti-SLAPP Motion is granted. The entirety of the Complaint is stricken.
The Request for Judicial Notice is granted.
Coastal to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Document
VALARIE ZAYAS VS CITY OF LOS ANGELES, ET AL.
Feb 03, 2023 |
Kerry R. Bensinger
|
Premise Liability (e.g., dangerous conditions of property, slip/trip and fall, dog attack, etc.) (General Jurisdiction) |
Premise Liability (e.g., dangerous conditions of property, slip/trip and fall, dog attack, etc.) (General Jurisdiction) |
23STCV02454
Preview
SANDRA I. TIBERI, ESQ/BAR #192816 Electronically FILED by HEMAR, ROUSSO & HEALD, LLP Superior Court of California, 15910 Ventura Boulevard County of Los An: geles 12th Floor 7/01/2024 9:00 Al David W. Slayton, Encino, CA 91436 Executive Officer/Clerk of Court, Telephone: (818) 501-3800 By P. Diaz, Deputy Clerk Facsimile: (818) 501-2985 E-mail: sandra@hrhlaw.com Attorneys for Plaintiff FUND-EX SOLUTIONS GROUP, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES 10 (Van Nuys Courthouse East - Unlimited) 11 12 FUND-EX SOLUTIONS GROUP, LLC, CaseNo: 24yVECwO3130 £213 COMPLAINT FOR: as Plaintiff, sos 14 Breach of Written Agreement os Se Vv. Breach of Personal Guaranty sz 15 Foreclosure of Security Agreement MAK HOME STAGING LLC, a California Money Lent 16 limited liability company; MAYA MAKDESI, Account Stated an individual; 17 DOES 1-100, inclusive, [Demand Exceeds $589,633.09] 18 Defendants. 19 20 21 22 Plaintiff alleges as follows: 23 1 At all times mentioned herein, FUND-EX SOLUTIONS GROUP, LLC (hereinafter 24 referred to as “Plaintiff’) was, and now is, a duly organized limited liability company existing under 25 and by virtue of the laws of the State of Florida and at all times herein mentioned was and is duly 26 licensed to conduct business in the State of California. 27 28 1 COMPLAINT 2. The true names and capacities of Defendants, DOES 1-100, inclusive, are unknown to Plaintiff at this time, who therefore sues said Defendants by such fictitious names. Plaintiff is informed and believes, and thereon alleges, that each Defendant named in this Complaint, including DOES, was at all times herein mentioned, and now is, the agent, servant, subsidiary, partner, member, associate, representative or employee of each of the other Defendants, including DOES, and all of the things alleged to have been done by the Defendants were done in the course and scope of agency, employment, service, subsidiary relationship, partnership, membership, association, or representative relationship, with knowledge and consent of their respective principals, employers, masters, parent corporations, partners, members, associates or representatives. Plaintiff is informed and believes, and 10 thereon alleges, that each defendant named as a DOE is responsible for each and every obligation 11 hereinafter set forth. 12 3 Plaintiff alleges that the Defendants, or some of them, reside in the above-cited Judicial 2313 58 District. The obligation sued upon is commercial in nature and is not subject to the provisions of Cal. sos 14 Civ. Code § 2984.4, nor Cal. Civ. Code § 1812.10. os B22 oe sz 15 FIRST CAUSE OF ACTION 16 (Breach of Written Agreement Against MAK HOME STAGING LLC, 17 a California limited liability company; DOES 1-10, inclusive) 18 4 Plaintiff refers to paragraphs | through 3, inclusive and by this reference incorporates 19 the same herein as though fully set forth. 20 5 On or about October 27, 2022, MAK HOME STAGING LLC, a California limited 21 liability company (hereinafter referred to as “Defendant”) executed and delivered to Plaintiff a Loan 22 Agreement and U.S. Small Business Administration Note (collectively the “Agreement”’) wherein and 23 whereby Defendant received a business loan from Plaintiff in the principal amount of $639,000.00, 24 together with interest at the rate of Prime plus 2.75% per annum. Defendant agreed to comply with 25 the terms and conditions stated therein. As set forth under the terms and conditions of Agreement, 26 Defendant agreed to pay Plaintiff principal and interest payments of $8,094.58 per month until the 27 maturity date of October 27, 2032. A true and correct copy of the Loan Agreement is attached hereto 28 2 COMPLAINT as Exhibit “1" and is incorporated herein as though set forth in full. A true and correct copy of the U.S. Small Business Administration Note is attached hereto as Exhibit “2” and is incorporated herein as though set forth in full. A true and correct copy of the Limited Liability Company Resolution to Borrow/Grant Collateral is attached hereto as Exhibit “3” and is incorporated herein as though set forth in full. 6 Theretofore and thereafter, Plaintiff duly performed or was excused from performing all terms and conditions of the Agreement on its part to be performed. 7 Thereafter, on or about March 15, 2024, Defendants, and each of them, subsequently defaulted under the terms and conditions of the Agreement in that it failed and refused to make the 10 payments due thereunder. 11 8 As a result thereof, Plaintiff has, pursuant to the terms of the Agreement, declared the 12 whole sum of principal, together with interest due and payable. The principal due and payable from 2313 Defendants to Plaintiffis the sum of $589,633.09, plus accrued interest at the rate of Prime plus 2.75% os 14 through June 20, 2024 in the amount of $19,264.04 and continuing thereafter in an amount to be gs oe Z 15 proven at time of trial. 16 9. In addition, Defendant is liable to Plaintiff for late charges if a minimum payment is 17 received 10 days after the due date in an amount up to 5% of the unpaid portion of the regularly 18 scheduled payment. As of June 20, 2024, late charges are due in the amount of $1,349.22 and 19 continuing in an amount to be proven at time of trial. 20 10. In addition, Defendant is liable to Plaintiff for miscellaneous collection fees in the 21 amount of $2,739.32. 22 ll. Although demand therefore has been made, no part of said sum has been paid, and the 23 sum of $589,633.09, plus accrued interest through June 20, 2024 in the amount of $19,264.04, plus 24 interest continuing thereafter at Prime plus 2.75%, plus late charges through June 20, 2024 in the 25 amount of $1,349.22 and continuing in an amount to be proven at time of trial, plus miscellaneous 26 collection fees in the amount of $2,739.32 are due, owing and unpaid. 27 28 3 COMPLAINT 12. The Agreement provides for the payment of reasonable attorney's fees in the event suit is instituted to enforce the provisions thereof. Plaintiff has retained the Law Offices of HEMAR, ROUSSO & HEALD, LLP for the purpose of instituting this action and Plaintiffis therefore entitled to reasonable attorney's fees. SECOND CAUSE OF ACTION (Breach of Personal Guaranty against MAYA MAKDESI, an individual) 13. Plaintiff refers to the First Cause of Action, and incorporates the same herein as though set forth in full. 14. To induce Plaintiffto furnish the above-referenced line of credit and monies to 10 Defendant, MAYA MAKDESI, an individual (hereinafter “Guarantor Defendant” or “Defendant”, 11 executed in writing an Unconditional Guarantee to the Agreement. A true and correct copy of the 12 Unconditional Guaranty is attached hereto as Exhibit “4" and is incorporated herein by reference 2313 (hereinafter “Personal Guaranty”). os 14 15. Thereafter, on or about March 15, 2024, Guarantor Defendant subsequently defaulted gs oe Z 15 under the terms and conditions of the Agreement in that it has failed and refused and continues to fail 16 and refuse to make the payments due thereunder. 17 16. By virtue of the above, Plaintiff has, pursuant to the terms of the Agreement, declared 18 the whole sum of principal, together with interest due and payable. Therefore, Guarantor Defendant is 19 indebted to Plaintiff in the sum of $589,633.09, plus accrued interest through June 20, 2024 in the 20 amount of $19,264.04, plus interest at the rate of Prime plus 2.75% continuing thereafter, plus late 21 charges through June 20, 2024 in the amount of $1,349.22 and continuing in an amount to be proven 22 at time of trial, plus miscellaneous collection fees in the amount of $2,739.32, are due, owing and 23 unpaid. 24 17. Said Personal Guaranty also provides for the payment of reasonable attorney's fees 25 should legal action be instituted to enforce the payment thereof. Plaintiff has retained the Law Offices 26 of HEMAR, ROUSSO & HEALD for the purpose of this action and is therefore entitled to reasonable 27 attorney's fees. 28 4 COMPLAINT THIRD CAUSE OF ACTION (Foreclosure of Security Agreement MAK HOME STAGING LLC, a California limited liability company; DOES 11-20, inclusive) 18. Plaintiff refers to the First Cause of Action, and by this reference incorporates the same herein as though fully set forth. 19. To secure payment of the obligation set forth in the Agreement, Defendant executed a Security Agreement — Commercial wherein Defendant Mak Home Staging LLC agreed to grant Plaintiff a security interest in property defined as Collateral therein (hereinafter “Security Agreement”). A true and correct copy of the Commercial Security Agreement is attached hereto as 10 Exhibit “5” and incorporated herein as though fully set forth. 11 20. On or about October 25, 2022, Plaintiff filed a UCC Financing Statement perfecting its 12 security interest. A true and correct copy of the UCC Financing Statement is attached hereto as Exhibit 2313 58 “6” and incorporated herein as though fully set forth. sos 14 21. Plaintiff has duly performed or has been excused from performing all of its obligations os B22 sz 15 to be performed under the Security Agreement. 16 22. Said Security Agreement provides that upon a default by Defendant, Plaintiff is entitled 17 to take possession and dispose of the Collateral. 18 23. By virtue of Defendant’s default in payment of the Security Agreement, Plaintiff is 19 entitled to immediate possession of Collateral. 20 24. Plaintiff has not yet repossessed the Collateral nor is this Complaint based upon any 21 claimed deficiency balance. In the event that Plaintiff recovers the collateral either by way of judicial 22 process or otherwise, and liquidates said Collateral, then Plaintiff shall credit Defendant with the net 23 proceeds of any sale. 24 25. Plaintiff is informed and believes that to the extent any Collateral exists, it is now in 25 possession ofthe Defendant and that Plaintiff is entitled to immediate possession of the Collateral. 26 26. Said Security Agreement provides for the payment of reasonable attorney's fees in the 27 event suit is instituted to enforce the provisions thereof. Plaintiff has retained the Law Offices of 28 5 COMPLAINT Hemar, Rousso & Heald, LLP for the purpose of instituting this action and Plaintiff is therefore entitled to reasonable attorney's fees. FOURTH CAUSE OF ACTION (Money Lent Against All Defendants) 27. Plaintiff refers to paragraphs | through 26, inclusive, and by this reference incorporates the same herein as though fully set forth. 28. Within four years last past, Defendants, and each of them, became indebted to Plaintiff in the principal sum of $589,633.09 for monies paid, lent and expended for Defendants, and each of them, at their instance and request. 10 29. No part of said sum has been paid, although demand therefore has been made, and there 11 is now due, owing and unpaid to Plaintiff, the principal sum of $589,633.09, together with interest 12 thereon at the rate of ten percent (10%) per annum according to proofat the time of trial. 2313 58 FIFTH CAUSE OF ACTION sos 14 (Account Stated Against All Defendants) os B22 sz 15 30. Plaintiff refers to paragraphs | through 29, inclusive, and by this reference incorporates 16 the same herein as though fully set forth. 17 31. Within four years last past, an account was stated by and between Plaintiff and 18 Defendants, wherein it was agreed that said Defendants, and each of them, were indebted to Plaintiff 19 in the principal sum of $589,633.09. 20 32. No part of said sum has been paid, although demand therefor has been made and there 21 is now due, owing and unpaid from Defendants, and each of them, to Plaintiff the principal sum of 22 $589,633.09, together with interest thereon at the rate of ten percent (10%) per annum according to 23 proof at the time of trial. 24 WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as 25 follows: 26 27 28 6 COMPLAINT AS TO THE FIRST AND SECOND CAUSES OF ACTION For the principal sum of $589,633.09; For accrued interest through June 20, 2024 in the amount of $19,264.04 :3 For interest continuing thereafter at Prime plus 2.75%.; For late charges through June 20, 2024 in the amount of $1,349.22, and continuing thereafter in an amount to be proven at time of trial; 5 For miscellaneous collection fees in the amount of $2,739.32; 6 For reasonable attorney’s fees; AS TO THE THIRD CAUSE OF ACTION 10 7 For judgment that the Security Agreement referred to be foreclosed; 11 8 For reasonable attorney’s fees; 12 AS TO THE FOURTH AND FIFTH CAUSES OF ACTION £213 as 9. For the principal sum of $589,633.09; sos 14 10. For interest thereon at the rate of ten percent (10%) per annum from date of os Se sz 15 default; 16 AS TO ALL CAUSES OF ACTION 17 ll. For costs of suit incurred herein; 18 12. For such other and further reliefas the Court may deem just and proper. 19 DATED: July 1, 2024 HEMAR, ROUSSO & HEALD, LLP 20 21 B * SANDRA I. TIBERI 22 Attorneys for Plaintiff 23 24 25 26 27 28 7 COMPLAINT EXHIBIT 1 DocuSign Envelope ID: 24C26591-B788-4835-9A7F-85A7B3ABEA02 LOAN AGREEMENT DATED AS OF OCTOBER 27, 2022 BY AND AMONG FUND-EX SOLUTIONS GROUP, LLC, AS LENDER AND MAK HOME STAGING LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AS BORROWER {04099755,v1 } DocuSign Envelope ID: 24C26591-B788-4835-9A7F-85A7B3ABEA02 AN AGREEME) THIS LOAN AGREEMENT is made as of October 27, 2022, by and among MAK HOME STAGING LLC, a California limited liability company, whose address is 60 Industrial Way, Brisbane, CA 94005 (“Borrower”), and Fund-Ex Solutions Group, LLC, whose address is 201 Solar Street, Syracuse, NY 13204 (together with its successors and assigns, “Lender”). In consideration of the premises and of the mutual covenants contained in this Agreement and intending to be legally bound, the parties agree as follows: ARTICLE I. Definitions il Defin ns. As used in this Agreement, unless otherwise specified, the following terms shall have the following respective meanings: “Affiliate” means any Person who now or hereafter has Control of, or is now or hereafter under common Control with, Borrower or any Subsidiary or over whom or over which Borrower or any Subsidiary now or hereafter has Control. “Agreement” means this agreement, including any Schedule hereto, as the same may be amended, supplemented, restated or otherwise modified from time to time. “Anti-Terrorism Laws” means any laws relating to terrorism or money laundering, including, without limitation, Executive Order No. 13224, the USA Patriot Act, the laws comprising or implementing the Bank Secrecy Act, and the laws administered by the United States Treasury Department’s Office of Foreign Asset Control (as any of the forgoing laws may from time to time be amended, renewed, extended or replaced). “Authorization” means the SBA Loan Authorization dated October 25, 2022, SBA Loan # PLP 44280291-00. “Business Day” means a day of the year which is neither a Saturday or Sunday nor a legal holiday on which banks are required or authorized by law to close in the State of California. “Closing” or “Closing Date” means the closing of the transactions provided for in this Agreement, or such other date upon which the parties may agree. “Collateral” means all of Borrower's and/or Guarantor’s assets, howsoever arising, wherever located and whether now owned or existing or hereafter existing or acquired, as more fully described in the Collateral Documents. “Collateral Documents” means collectively, any security agreement, UCC-1 financing statement, mortgage, deed of trust, and any and all other documents at any time executed and delivered in connection therewith or with this Agreement securing the Lenders interest in Collateral, and any and all amendments, restatements, renewals or replacements thereof. : “Constituent Documents” means the applicable formation documents (articles of incorporation, articles of organization, partnership agreement, trust agreement, as applicable) and governance documents (by-laws, operating agreement, partnership agreement, trust agreement, as applicable) of any Obligor, as applicable. “Control” means (a) the power to vote at least 50% of (i) the outstanding shares of any class of stock of a corporation or (ii) of any equity, membership or ownership interest in any partnership, limited partnership, {04099755,v1 } DocuSign Envelope ID: 24C26591-B788-4835-9A7F-85A7B3ABEA02 limited liability company or other business entity or (b) the beneficial ownership of at least 20% of (i) the outstanding shares of any class of stock of a corporation or (ii) of any outstanding equity, membership or ownership interest in any partnership, limited partnership, limited liability company or other business entity. “Environment” means any water including, but not limited to, surface water and ground water or water vapor; any land including land surface or subsurface; stream sediments; air; fish; wildlife; plants; and all other natural resources or environmental media. “Environmental Indemnity Agreement” means that certain Environmental Indemnity Agreement of even date herewith, executed and delivered by Borrower and any Guarantor to Lender, as amended, modified or supplemented from time to time, if any. “Environmental Laws” means all foreign, federal, state, county, provincial and local environmental, land use, zoning, health, chemical use, safety and sanitation laws, statutes, ordinances, regulations, codes and rules relating to the protection of the Environment and/or governing the use, storage, treatment, generation, transportation, processing, handling, production or disposal of Hazardous Substances and the policies, guidelines, procedures, interpretations, decisions, orders and directives of any governmental authority with respect thereto. “Environmental Permits” means all licenses, permits, approvals, authorizations, consents or registrations required by any applicable Environmental Laws and all applicable judicial and administrative orders in connection with ownership, lease, purchase, transfer, closure, use and/or operation of Borrower's property, inclu 1g, without limitation, as may be required for the storage, treatment, generation, transportation, processing, handling, production or disposal of Hazardous Substances. “ERISA Affiliate” means any Person who is under common control with a Borrower within the meaning of Section 414(b) of the Internal Revenue Code of 1986, as amended, including, but not limited to, a Subsidiary of a Borrower. “Executive Order No. 13224” means Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, as the same has been, or shall hereafter be, amended, renewed, extended or replaced. “Guarantor” or “Guarantors” means, jointly and severally, each Person or entity who guarantees payment of any Loan governed by this Agreement. “Guaranty” or “Guaranties” means any guaranty agreement given by Guarantor to Lender, as it may be amended, restated, supplemented or otherwise modified from time to time. “Hazardous Substances” means without limitation, any flammable explosives, radon, radioactive materials, asbestos, asbestos containing materials, urea formaldehyde foam insulation, lead based paints, polychlorinated biphenyls, petroleum and petroleum products, methane, hazardous materials, hazardous wastes, hazardous or toxic substances, pollutant, contaminant, regulated substance, residual waste or related materials as defined in or subject to any Environmental Law, including, without limitation, the following federal statutes and any comparable state or county Environmental Laws: the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C. Sections 6901, et seq.), The Clean Water Act, as amended (33 U.S.C. Sections 1251, et seq.), The Safe Drinking Water Act (42 U.S.C. Sections 300f, et seq.), The Clean Air Act (42 U.S.C. Sections 7401, et seq.), and/or regulations adopted pursuant to any such Environmental Law. “Indebtedness” of a Person at a particular date means all liabilities and obligations of such Person, including without limitation, those which in accordance with sound accounting principles would be classified upon a balance sheet as liabilities and all other indebtedness, debt and other similar monetary obligations of such Person whether direct or guaranteed, contingent or liquidated, matured or unmatured and all premiums, if any, due at the required prepayment dates of such any indebtedness, and all indebtedness secured by a lien on assets {04099755;v1 } DocuSign Envelope ID: 24C26591-B788-4835-9A7F-85A7B3ABEA02 owned by such Person, whether or not such indebtedness actually shall have been created, assumed or incurred by such Person. Any indebtedness of such Person resulting from the acquisition by such Person of any assets subject to any lien shall be deemed, for the purposes hereof, to be the equivalent of the creation, assumption and incurring of the indebtedness secured thereby, whether or not actually so created, assumed or incurred. “Leased Property” means that certain real property located at 60 Industrial Way, Brisbane, California, leased by Borrower from Michael K. Yates. “Lender Affiliate” means any bank or non-bank subsidiary (other than Lender) of Lender. “Loan” and collectively, “Loans” has the meaning set forth in Section 2.1 of this Agreement. “Loan Document” and collectively, “Loan Documents” means the Collateral Documents, the Notes, the Guaranties, and any other documents, instruments or agreements executed in connection with the Loan, as may be amended, modified or supplemented from time to time. “Loan Maturity Date” means the date set forth in the applicable Note issued pursuant to this Agreement on which a Loan is scheduled to be paid in full, unless such date is otherwise accelerated in accordance with the terms of this Agreement. “Margin Stock” has the meaning set forth in Regulation U of the Board of Governors of the Federal Reserve System, as amended from time to time. “Material Adverse Effect” means a material adverse effect on: (a) the property, assets, financial condition, business or operations of an Borrower ; (b) the ability of Borrower to perform any of its payment or other obligations under this Agreement, any Note, any Collateral Document or other Loan Document to which it is a party; (c) the legality, validity or enforceability of the obligations of Borrower under this Agreement, any Note, any Collateral Document or other Loan Document to which it is a party; or (d) the ability of Lender to exercise its rights and remedies with respect to, or otherwise realize upon, any of the collateral or any of the security for the obligations of Borrower or Guarantor to Lender or any Lender Affiliate under this Agreement, any Note, any Collateral Document or other Loan Document. “Note” or “Notes” has the meaning set forth in Section 2.2 of this Agreement. “Obligor” means any Borrower, Guarantor or any other Person providing collateral support for Borrower’s obligations hereunder. “Pension Plan” means any pension plan as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974 as amended (“ERISA”) with respect to which Borrower or any Subsidiary has incurred or may incur liability, including contingent liability, under Title IV of ERISA, to such plan or to the Pension Benefit Guaranty Corporation. For purposes of this definition and for purposes of Section 7.1(i), “Borrower” shall include any trade or business (whether or not incorporated) which, together with Borrower or a Subsidiary, is deemed to be a “single employer” within the meaning of Section 4001(b)(1) of ERISA. “Permitted Distribution” means any distributions to Borrower’s members (i) in an amount equal to the amount of tax liability required to be paid by such members as a result of Borrower’s taxable income passing through and being taxable to such members, or (ii) pursuant to the terms of the Borrower’s Operating Agreement, provided, such payment shall not result in a Material Adverse Effect. “Permitted Encumbrances” means any liens on collateral listed on Schedule 5.2 attached hereto. “Permitted Indebtedness” means any debt incurred by Borrower listed on Schedule 5.1 attached hereto. {04099755;v1 } DocuSign Envelope ID; 24C26591-B788-4835-9A7F-B5A7B3ABEA02 “Person” means any individual, corporation, limited liability company, partnership, joint venture, trust, unincorporated association, government or political subdivision or other entity, body, organization or group. “Reportable Event” means any event with regard to a Pension Plan described in Section 4043(b) of ERISA, or in Regulations issued thereunder. “SBA” means the United States Small Business Administration. “Schedule” means any Schedule that may be attached to this Agreement and made a part hereof. “Subsidiary” means any corporation of which at least 25% of the voting stock is owned by Borrower directly, or indirectly through one or more Subsidiaries. “UCC” means the Uniform Commercial Code as in effect in the State of California. “USA Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as the same has been, or shal! hereafter be, renewed, extended, amended or replaced. 12 Accounting Terms, All accounting terms not otherwise defined herein shall have the meaning assigned to them in accordance with sound accounting principles. 13 u Definitions, Unless otherwise defined in this Agreement, capitalized words shall have the meanings set forth in the Uniform Commercial Code as in effect in the State of California. ARTICLE II. The Financing 21 Loans, Lender agrees, based on the terms and conditions and relying upon the representations and warranties set forth in this Agreement, to lend to Borrower, and Borrower agrees to borrow from Lender, one or more loans to be more fully described in the Notes and payable according to the terms of the respective Notes (each a “Loan” and collectively the “Loans”). As a condition to the making of any Loan, Borrower shall execute and deliver to Lender a Note or Notes evidencing the terms of repayment of such Loan. 2.2 ‘The Notes. The Loan subject to this Agreement shall be evidenced in part by, and payable as provided in, a note (other than any demand note) (as amended, restated or otherwise modified from time to time each a “Note” and collectively the “Notes”) executed by Borrower. 2.3 Interest and Late Charges. (a) Interest and Late Charges on the Loan, The Loan shall bear interest at a per annum rate equal to the interest rate set forth in the applicable Note evidencing such Loan until maturity (whether by acceleration or otherwise) and thereafter until paid in full on the unpaid principal amount thereof. If any payment of principal of or interest on any Note is not paid when due, Borrower shall pay to Lender any late charge set forth in the applicable Note. (b) Computation of Interest and Payment. Accrued interest on the Loan shall be paid on the dates set forth in the Note, and on the date the Loan is paid in full. Interest on the Loan shall be calculated on the basis set forth in the Note. Principal payments shall be made as set forth in the Note. 2.4 Use_of Proceeds. Proceeds of the Loan shall be used for the purposes set forth in the Authorization. 2.5 Conditions Precedent, Lender shall not be obligated to advance any Loan if (a) any Event of Default shall occur or be continuing or (b) Borrower fails to meet any other conditions set forth in the Loan Documents. {04099755;v1 } DocuSign Envelope ID: 24C26591-B788-4835-9A7F-85A7B3ABEA02 2.6 Advances. Borrower acknowledges and agrees that the Loan may not be fully disbursed on the date hereof. For all disbursements of Loan funds made, or to be made, after the date hereof, to Borrower, or on Borrower’s behalf, in either a lump sum or on a multiple advance basis under the terms and conditions of the Authorization and this Agreement (each an “Advance”), Borrower agrees as follows: (a) Application for Advances. Each application shall be stated on a standard Lender request for payment form or other form approved by Lender, executed by Borrower, and supported by such evidence as Lender shall reasonably require. Each application for an Advance shall be deemed a certification of Borrower that as of the date of such application, all representations and warranties contained in the Authorization, this Agreement and all of the other Loan Documents are true and correct, and that Borrower is in compliance with all of the provisions of the Loan Documents. (b) Payments. At the sole option of Lender, Advances may be paid in the name of Borrower and/or party as designated by Borrower. This power shall be deemed coupled with an interest, shall be irrevocable, and shall survive an Event of Default under the Loan Documents. 27 Charge to Account, On the date that any principal of, or interest on, the Loan, or of any fees, expenses or charges payable are due, Borrower authorizes Lender to debit its account maintained with Lender on such due date in an amount equal to such unpaid principal, interest, fee, expense or charge, as applicable; provided that Lender shall be under no obligation to so debit any such deposit account. ARTICLE III. Representations and Warranties Borrower makes the following representations and warranties, which shall be deemed to be continuing representations and warranties so long as any indebtedness of Borrower to Lender or any Lender Affiliate, including indebtedness for fees and expenses, remains unpaid: 3.1 Good Standing and Authority. If Borrower is not an individual, Borrower is an entity, duly organized, and validly existing, and in good standing under the laws of the state of its formation or organization; has all necessary power and authority to transact the business in which it is engaged; is duly licensed or qualified and in good standing in each other jurisdiction in which the conduct of such business requires such licensing or such qualification, except where the failure to be so licensed or qualified would not have a Material Adverse Effect. Borrower has all necessary power and authority to enter this Agreement and to execute, deliver and perform this Agreement and all other Loan Documents executed in connection with this Agreement, all of which have been duly authorized by all proper and necessary action by Borrower and the owners of Borrower. 3.2 Valid_and Binding Obligation, This Agreement and all other Loan Documents executed in connection herewith constitute the legal, valid and binding obligations of Borrower, enforceable in accordance with their respective terms except as enforceability may be limited by applicable bankruptcy and insolvency laws and laws affecting creditor’s rights generally. 3.3 Good Title. Borrower has good and marketable title to all of its assets, none of which is subject to any mortgage, indenture, pledge, lien, conditional sale contract, security interest, encumbrance, claim, trust or charge except for Permitted Encumbrances. 3.4 No Pending Litigation, There are not any actions, suits, proceedings (whether or not on behalfof Borrower) or investigations pending or, to the best of Borrower’s knowledge, threatened against Borrower which, if adversely determined, would, in any case or in the aggregate, have a Material Adverse Effect, or which question the validity of this Agreement and the other Loan Documents required by this Agreement, or any action taken or to be taken pursuant to any of the foregoing. 3.5 No _Consent_or_ Filing, No consent, license, approval or authorization of, or registration, declaration or filing with, any court, governmental body or authority or other Person, which has not been obtained or made, is required in connection with the valid execution, delivery or performance of this Agreement and the other {04099755;v1 } DocuSign Envelope ID: 24C26591-8788-4835-9A7F-85A7B3ABEA02 Loan Documents required by this Agreement or in connection with any of the transactions contemplated thereby, other than filings and recordings in connection with the Collateral Documents. 3.6 No Violations. Borrower is not in violation of any term of its Constituent Documents, or of any mortgage, borrowing agreement or other instrument or agreement pertaining to indebtedness for borrowed money. Borrower is not in violation of any term of any other indenture, instrument, or agreement to which it is a party or by which it may be bound, resulting, or which might reasonably be expected to result, in a Material Adverse Effect. Borrower is not in violation of any order, writ, judgment, injunction or decree of any court of competent jurisdiction. To Borrower’s best knowledge, Borrower is not in violation of any statute, rule or regulation of any competent governmental authority, the violation of which could have a Material Adverse Effect. The execution and delivery of the Loan Documents required by this Agreement and the performance of all of the same is and will be in compliance with the foregoing and will not result in any violation or result in the creation of any mortgage, lien, security interest, charge or encumbrance upon any properties or assets except in favor of Lender, There exists no fact or circumstance not disclosed in this Agreement or in the documents furnished in connection herewith (other than general economic conditions) which does, or in the future could, have a Material Adverse Effect. 3.7 Financial Statements. Borrower has furnished to Lender financial statements, satisfactory to Lender in Lender’s sole discretion, showing Borrower’s financial condition as of the end of Borrower’s most recently completed fiscal year which statements represent fairly the results of its operations and transactions as of the dates and for the period referred to and have been prepared in accordance with sound accounting principles. From the date of such financial statements to the date of the execution of this Agreement, there has not been any Material Adverse Effect or any fire, explosion, accident, flood, drought, storm, earthquake, condemnation, statutory or regulatory change, act of God, or act of public enemy or other casualty, whether or not insured, which would cause a Material Adverse Effect. 3.8 Tax Returns, Borrower has duly filed all federal and other tax returns required to be filed and has paid all taxes required by such returns through its latest fiscal year end, and has not received any assessments by the Internal Revenue Service or other taxing authority for additional unpaid taxes. 39 ERISA Matters. Except in compliance with all applicable laws and regulations, no Pension Plan has been terminated or partially terminated or is insolvent or in reorganization, nor have any proceedings been instituted to terminate or reorganize any Pension Plan; neither Borrower nor any Subsidiary has withdrawn from any Pension Plan, nor has a condition occurred which if continued would result in a complete or partial withdrawal; neither Borrower nor any Subsidiary has incurred any withdrawal liability to any Pension Plan; neither Borrower nor any Subsidiary has incurred any liability to the Pension Benefit Guaranty Corporation other than for required insurance premiums which have been paid when due; no Reportable Event has occurred; and no Pension Plan or other “employee pension benefit plan” as defined in Section 3 of ERISA to which Borrower or any Subsidiary is a party has an “accumulated funding deficiency.” Each Pension Plan and each other “employee benefit plan” as defined in Section 3(2) of ERISA to which Borrower or any Subsidiary is a party is in substantial compliance with ERISA, and no such plan, or any administrator, trustee or fiduciary thereof has engaged in a prohibited transaction described in Section 406 of ERISA or in Section 4975 of the Internal Revenue Code. 3.10 Solvency. Borrower is not insolvent as defined in any applicable state or federal statute, nor will Borrower be rendered insolvent by the execution and delivery of this Agreement and the other Loan Documents to Lender. After the making of each Loan hereunder, Borrower reasonably expects to (a) be able to pay its debts as they become due, (b) have funds and capital sufficient to carry on its business and all businesses in whic! it is about to engage, and (c) own property having a value at both fair valuation and at fair salable value in the ordinary course of Borrower’s business greater than the amount required to pay its debts as they become due. 3.11 Federal Reserve Regulations. Borrower is not engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No part of the proceeds of the Loans will be used, directly or indirectly, for a purpose which violates any law, rule or regulation of any governmental body, including without limitation the provisions of Regulations U or X of the Board of Governors of the Federal Reserve System, as amended. No part of the proceeds of the Loans will be used, directly or indirectly, to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock, {04099755;v1 } DocuSign Envelope ID: 24C26591-B788-4835-9A7F-85A7B3ABEA02 3.12 Enyironmental Matters, To the knowledge of Borrower: (a) No above ground or underground storage tanks containing Hazardous Substances are or have been located on any property owned, leased or operated by Borrower and each Subsidiary; (b) No property owned, leased or operated by Borrower or any Subsidiary is or has been used for the unpermitted or unauthorized treatment, storage or disposal of Hazardous Substances; (c) No material Release of a Hazardous Substance has occurred or is threatened on, at, from or, near any property owned, leased or operated by Borrower or any Subsidiary that will now or in the future (based on Environmental Laws currently in effect) require (i) remedial or corrective action, removal, monitoring or closure pursuant to any Environmental Law currently in effect or (ii) Borrower or any Subsidiary to incur costs pursuant to the terms or conditions of any lease; (d) Neither Borrower nor, any Subsidiary is subject to any existing, pending or threatened suit, claim, notice of violation or request for information under any material Environmental Law; and (e) Borrower and each Subsidiary is in compliance in all material respects with, and have obtained all Environmental Permits required by all Environmental Laws. 3.13 Prohibited Person Compliance. Borrower warrants, represents and covenants that neither Borrower nor any Guarantor nor any of their respective Affiliates is or will be a Person (a) that is listed in the Anne