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1 CHRISTOPHER D. SULLIVAN (148083)
csullivan@diamondmccarthy.com
2 DIAMOND MCCARTHY LLP ELECTRONICALLY
3 150 California Street, Suite 2200 F I L E D
San Francisco, California 94111 Superior Court of California,
County of San Francisco
4 Telephone: (415) 692-5200
Facsimile: (415) 263-9200 02/14/2020
Clerk of the Court
5 BY: SANDRA SCHIRO
Deputy Clerk
Attorneys for Plaintiff, LEGALIST, INC., a
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Delaware corporation
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO
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12 LEGALIST, INC., a Delaware corporation, Case No. CGC-20-582932
13 Plaintiff, Reservation No. 02140317-02
14 DECLARATION OF CURTIS SMOLAR
V.
IN SUPPORT OF MOTION OF
15 PLAINTIFF LEGALIST, INC. FOR A
RUSSEL MYRICK, an individual; RDM STAY OF PROCEEDINGS PURSUANT
16 LEGAL GROUP, a California sole TO CALIFORNIA CODE OF CIVIL
proprietorship, PROCEDURE SECTION 1281.S(d)
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Defendants. Date: March 17, 2020
18 9:30 a.m.
Time:
19 Dept.: 302
Judge: Hon. Ethan P. Schulman
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22 I, CURTIS SMOLAR, declare as follows :
23 1. I am an attorney at law licensed to practice law in the State of California.
24 2. I make this Declaration in support of the motion of PlaintiffLEGALIST, INC., a
25 Delaware corporation ("Legalist") pursuant to California Code of Civil Procedure section
26 128L8(d) for stay of all proceedings in this action under Legalist's February 12, 2020 Complaint
27 other than Legalist's application for a right to attach order, a temporary protective order, and a writ
28 of attachment ("Motion").
-1-
DECLARATION OF CURTIS SMOLAR IN SUPPORT OF PLAINTIFF'S MOTION FOR A STAY OF
PROCEEDINGS PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1281.S(d)
I 3. I have personal knowledge of all facts set forth in this Declaration, and, if called as a
2 witness, could and would testify to the accuracy thereof.
3 4. I am the General Counsel of Legalist and make this Declaration in that capacity.
4 5. On February 12, 2020, Legalist filed a Complaint for Breach of Contract against
5 Defendants RUSSEL MYRICK, an individual ("Myrick") and RDM LEGAL GROUP, a California
6 sole proprietorship ("RDM") (together, "Defendants").
7 6. A true and correct copy of Legalist' s Complaint is attached hereto as Exhibit 1.
8 7. Legalist's Complaint concerns Defendants' breach of a Litigation Funding
9 Agreement made and entered into as of December 6, 2018 between Legalist and Defendants
1O ("LFA").
11 8. The LF A contains a dispute resolution provision requiring that any dispute, claim, or
12 controversy arising out of or relating to the LF A or the breach, termination, enforcement,
13 interpretation, or validity of the LF A be determined by arbitration in San Francisco, California. See
14 Exhibit 1 (Complaint), Attachment BC-1, ,r 21. Legalist' s Complaint contains a cause of action for
15 breach of contract against Defendants that is within the scope of the arbitration provision in the
16 LFA.
9. Contemporaneously with the filing of this Motion, Legalist is filing its application
17
for a right to attach order, a temporary protective order, and a writ of attachment against Myrick in
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accordance with California Code of Civil Procedure section 1281.8(b) on the ground that the
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arbitration award to which Legalist may be entitled may be rendered ineffectual without such
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provisional relief ("Attachment Application").
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10. As part of its Attachment Application, Legalist is reserving its right to arbitration
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under the LF A.
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11. In accordance with California Code of Civil Procedure section 1281.8(d), concurrent
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with the filing of its Attachment Application Legalist is filing this Motion for an order staying all
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other proceedings in this action under Legalist's Complaint against Defendants other than
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Legalist's Attachment Application pending arbitration.
27
II
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-2-
DECLARATION OF CURTIS SMOLAR IN SUPPORT OF PLAINTIFF'S MOTION FOR A STAY OF
PROCEEDINGS PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1281.8(d)
1 12. By filing its Attachment Application and this Motion, Legalist is not waiving and
2 does not waive its right to arbitration under the LF A.
3 13. Accordingly, I respectfully request that the Court issue an order staying all
4 proceedings under Legalist' s Complaint against Defendants other than Legalist' s Attachment
5 Application pending arbitration.
6 I declare under penalty of perjury under the laws of the State of California that the
7 foregoing is true and correct.
8 Executed this 12 day of February 2020, at San Francisco, California.
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-~- M_O_L_AR _ _ __
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DECLARATION OF CURTIS SMOLAR IN SUPPORT OF PLAINTIFF'S MOTION FOR A STAY OF
PROCEEDINGS PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1281 .8( d)
Exhibit I
PLD-C-001
ATTORNEY OR PARTY WlTHOUT.ATTORNEY.iNsms, Slate Bar n~mber, and address); FOR COURT USE 0/jL. Y
Christopher b: Sullivan, SBN 148083
b!AMOND MCCARTHY LLP
iSO California Street, Suite 2200
San. Francisco, CA .94111
TELEPHQNENO: 415-692-.5200 415°262-9200
ffV(NO. (OptlonaQ:
,csu!livan@diamondmccarthy.com
E-MAIL ADDRESS (Op/ionaQ:
PlllintiffLEGALIS.T, INC;, a Dciaware corpora~ion
ATTORNEY FOR (Name):
SUPERIOR COURT OF C.ALIFORNIA, COUNTY OF
STREET ADDRESS:400 McAllister Street
MAIL.ING ADDRESS:
SAN FRANCISCO
~UP.cir cL off;ornp
ounty of San Frnncisco
CITYANDZIPCODE:San Francis~, CA 94102
BRANCH NAME:Civic Center Courthouse FEB 13 2020
LEGALIST; INC., a Delaware corporation
PLAll'JTIFF;
DEFENDANT: RUSSEL MYR1CK, an indiviqmU; RDM; LEO AL GROUP, a California sole
. propri(,torship
D DOES1 TO _ _ _ __
CONTRACT
pcoMPLAINT D AMENDED COMPLAINT (Number):
0 CROSS-COMPLAINT CJ AMENDED CROSS-COMPLAINT (Number):
jurisdiction (check all that apply):
CASE NUMBER:
CJ ACTION IS A LIMITED CIVIL CASE
Amount demanded .0 does not exceed $10,000
. D e.xceeds $10,000 but does not exceed $25,000
f::Z:]
ACTION 1.S AN UNLIMITED CIVIL CA$E (exceeds $25,000)
0 ACTION IS RECLASSIFIED by this amended complaint ot cross-complaint CGC -20-58293 ,
O from limited to unlimited
D from unlimited t o limited
1. Plaintiff" (nam,e pr 11ames):
LEGALIST, INC., a Delaware corporation
alleges causes of action against defe ndant* (name or names):
RUSSEL MYRICK, an individual; RDM LEGAL GROUP, a California sole proprietorship
2. This pleading, including attachments and exhibits, consists of the following number of pages:
6
3. a. l:cach,plaintiffnamed above is a competent aqult
[Z] exceptplaintiff (name): LEGALIST, INC., a Oelaware corporation
(1) [Z]a corporation qualified to do business in Califomia
(2)CJan unincorporated entity (describfJ):
(3) C ] other (specify):
b.D Pl~intiff (name) :
a. W has complied with the fictitious business name laws and is doing business under the fictitious name (specify):
b.D has complied with all licensjng requirements as a licensed (specify):
c, D Information about additional plaintiffs who ate not qompetent aduJts is shown in Attachment 3c.
4. a. Eacti defencfant riamed above is a ·natural person
[2J except defendant (name): RDM Legal Group Oexcep,t defendant (nart1e):
(1) Oa business organiz:ation, form unknown (1)D a business oraanization, form unknown
(2),0 a corporation (2)D a corporation
(3)0 an unincorporated entity (describe): (3) D an unincorporated entity (describe):
(4)D a public entity (de.scribe): (4) D a put;,lic entity (de.scribe).'
(5) [2] other (specify):
CA sole ,proprietorship (5) O_other (specify):
·• Jrlhls form Is used as a cross~compleint, plaintirr·means cross •complainanl end defenda('lt me·Ms cross-defen~nl
Page 1 of 2
form Approved for Option.• ! Use
Judicial Council of Calilomla, COMP LAI NT-Contract
PLD-c-QOl [Rev. January 1,,2007)
PLD-C-001
. SHORT TITLE: .cASE NUMBER:
LEGALIST, lNC. v. MYRICK, et al..
4. (Continued)
b. The true names of defendants sued as Does are unknown to plaintiff.
( 1) D Doe defendants (specify Doe numbers): ---~----___,_ _ _ were the agents or employees of the miri'led
defendant1; and actecl within the scope of that agency or employment. ·
(2)D Doe ,defendants (specify Doe numbers): _ _ _ __ _ _ _ __ are persons whose capacities are 1.kikhown to
plaintiff.
c.D Information aboutaddit\onal defendants who are not natural persons is contained in Attachment 4c.
d.D Defendants who are joined under Code of Civil Procedure section 382 are (names):
5;D Plaintiff is required to comply with a claims statute, _
and
· a. D has complied with applicable claims statutes, or
b. [j is excused from con,plying b·ecause (specify):
6. D This action is subject to
D·civil Code section 1812.10 CJ Civil Coel!'l section 2984.4.
7. This court is the proper court·because
a. D ·a defendant entered into the contract here.
b. Q a defendant Jived here when the .contract was entered into.
c. D a defendant lives here now.
d. 0 the contract was to be performed here.
e. -â–¡ a defendant is a corporation or unincorporated association and its principal place of business is here.
f. D real property that is the subject o'f this action is located here.
g. D other (specify):
8. The following cause_s of action a~ attached and the statements above apply to each (each complaint must have one or
more causes of action attached):
W Bre.ach of Contract.
D Common Counts
D Other (specify):
9. c:=l Other allegations:
10. Plaintiff prays for judgrnent for costs of suit; for such refief;;is is fair, just, arid equitaole; and fot
a. [l] damages of: $ 573,287.96
.b.[LJ interest on .the damages
D
· (1) according to proof
(2),W 4
at the rate of (specify): December 5, 2019
percent per year from (date):
c. 11] attorney's fees
(1)0 of:$
(2) [Z] according to proof.
d. [ZJ other (specify):
Additional damages of $342.47 per day after date of fiUng (2/12/20).
11 .D The paragraphs ofthis pleading alleged on information and belief are as follows.(specify paragraph numl)ers):
Date: February 12, 2020
â–º
Christopher D. Sullivan
(lYPE O~ PR!NT NAME)
(If you ,wish to verify this pleading_, affix a verification.)
Plf'l.c-001 (R$v. january 1, 2007] COMPLAINT-Contract Pagli 2 of 2
PLD-C-001 (1)
SHORT TITLE: CASE NUMBER:
LEGALIST, INC. v. MYRlCK, etal.
FIRST CAUSE OF ACTI.O N-Breach of Contract
ATTACHMENT TO W Complaint â–¡,. Cross - Complaint
(Use a separate cause of action form for each cause of action-)
BC-1. LEGALIST, INC., a Delaware corporation
Plaintiff (name) ;
December 6, 2018
alleges that on or about (date):
a ill. written c::J. oral q other ($pecify):
agreement was mc;Jde between (name parties to agreement):
LEGALIST, INC. and{a) RUSSEL MYRICK and (b) RDM LEGAL GROUP
D A copy of the agreement is attached as Exhibit.A, or
· [Z] The essential terms of the agreemeni:[l] are stated in Attachment BC-1D are as follows (specify):
BC-2. on or aboui (dates):
December 5, 2019
defendant breached the agreement by D [ZJ
the acts specified in A1tacliment BC-2 the following acts
(specify):
Failing to (a) direct defendant in the matter entitled Blanchette v. Competitor Group, Inc., et al.
("Competitor Group") to pay Legalist, Inc. directly all amounts due to Legalist, Inc. pursuant to
the parties' agreement; (b) hold all payments Defendants received from Comp~titor Group in a
jointly-controlled escrow account pursu
Preview
1 CHRISTOPHER D. SULLIVAN (148083) csullivan@diamondmccarthy.com 2 DIAMOND MCCARTHY LLP ELECTRONICALLY 3 150 California Street, Suite 2200 F I L E D San Francisco, California 94111 Superior Court of California, County of San Francisco 4 Telephone: (415) 692-5200 Facsimile: (415) 263-9200 02/14/2020 Clerk of the Court 5 BY: SANDRA SCHIRO Deputy Clerk Attorneys for Plaintiff, LEGALIST, INC., a 6 Delaware corporation 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 12 LEGALIST, INC., a Delaware corporation, Case No. CGC-20-582932 13 Plaintiff, Reservation No. 02140317-02 14 DECLARATION OF CURTIS SMOLAR V. IN SUPPORT OF MOTION OF 15 PLAINTIFF LEGALIST, INC. FOR A RUSSEL MYRICK, an individual; RDM STAY OF PROCEEDINGS PURSUANT 16 LEGAL GROUP, a California sole TO CALIFORNIA CODE OF CIVIL proprietorship, PROCEDURE SECTION 1281.S(d) 17 Defendants. Date: March 17, 2020 18 9:30 a.m. Time: 19 Dept.: 302 Judge: Hon. Ethan P. Schulman 20 21 22 I, CURTIS SMOLAR, declare as follows : 23 1. I am an attorney at law licensed to practice law in the State of California. 24 2. I make this Declaration in support of the motion of PlaintiffLEGALIST, INC., a 25 Delaware corporation ("Legalist") pursuant to California Code of Civil Procedure section 26 128L8(d) for stay of all proceedings in this action under Legalist's February 12, 2020 Complaint 27 other than Legalist's application for a right to attach order, a temporary protective order, and a writ 28 of attachment ("Motion"). -1- DECLARATION OF CURTIS SMOLAR IN SUPPORT OF PLAINTIFF'S MOTION FOR A STAY OF PROCEEDINGS PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1281.S(d) I 3. I have personal knowledge of all facts set forth in this Declaration, and, if called as a 2 witness, could and would testify to the accuracy thereof. 3 4. I am the General Counsel of Legalist and make this Declaration in that capacity. 4 5. On February 12, 2020, Legalist filed a Complaint for Breach of Contract against 5 Defendants RUSSEL MYRICK, an individual ("Myrick") and RDM LEGAL GROUP, a California 6 sole proprietorship ("RDM") (together, "Defendants"). 7 6. A true and correct copy of Legalist' s Complaint is attached hereto as Exhibit 1. 8 7. Legalist's Complaint concerns Defendants' breach of a Litigation Funding 9 Agreement made and entered into as of December 6, 2018 between Legalist and Defendants 1O ("LFA"). 11 8. The LF A contains a dispute resolution provision requiring that any dispute, claim, or 12 controversy arising out of or relating to the LF A or the breach, termination, enforcement, 13 interpretation, or validity of the LF A be determined by arbitration in San Francisco, California. See 14 Exhibit 1 (Complaint), Attachment BC-1, ,r 21. Legalist' s Complaint contains a cause of action for 15 breach of contract against Defendants that is within the scope of the arbitration provision in the 16 LFA. 9. Contemporaneously with the filing of this Motion, Legalist is filing its application 17 for a right to attach order, a temporary protective order, and a writ of attachment against Myrick in 18 accordance with California Code of Civil Procedure section 1281.8(b) on the ground that the 19 arbitration award to which Legalist may be entitled may be rendered ineffectual without such 20 provisional relief ("Attachment Application"). 21 10. As part of its Attachment Application, Legalist is reserving its right to arbitration 22 under the LF A. 23 11. In accordance with California Code of Civil Procedure section 1281.8(d), concurrent 24 with the filing of its Attachment Application Legalist is filing this Motion for an order staying all 25 other proceedings in this action under Legalist's Complaint against Defendants other than 26 Legalist's Attachment Application pending arbitration. 27 II 28 -2- DECLARATION OF CURTIS SMOLAR IN SUPPORT OF PLAINTIFF'S MOTION FOR A STAY OF PROCEEDINGS PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1281.8(d) 1 12. By filing its Attachment Application and this Motion, Legalist is not waiving and 2 does not waive its right to arbitration under the LF A. 3 13. Accordingly, I respectfully request that the Court issue an order staying all 4 proceedings under Legalist' s Complaint against Defendants other than Legalist' s Attachment 5 Application pending arbitration. 6 I declare under penalty of perjury under the laws of the State of California that the 7 foregoing is true and correct. 8 Executed this 12 day of February 2020, at San Francisco, California. 9 -~- M_O_L_AR _ _ __ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- DECLARATION OF CURTIS SMOLAR IN SUPPORT OF PLAINTIFF'S MOTION FOR A STAY OF PROCEEDINGS PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1281 .8( d) Exhibit I PLD-C-001 ATTORNEY OR PARTY WlTHOUT.ATTORNEY.iNsms, Slate Bar n~mber, and address); FOR COURT USE 0/jL. Y Christopher b: Sullivan, SBN 148083 b!AMOND MCCARTHY LLP iSO California Street, Suite 2200 San. Francisco, CA .94111 TELEPHQNENO: 415-692-.5200 415°262-9200 ffV(NO. (OptlonaQ: ,csu!livan@diamondmccarthy.com E-MAIL ADDRESS (Op/ionaQ: PlllintiffLEGALIS.T, INC;, a Dciaware corpora~ion ATTORNEY FOR (Name): SUPERIOR COURT OF C.ALIFORNIA, COUNTY OF STREET ADDRESS:400 McAllister Street MAIL.ING ADDRESS: SAN FRANCISCO ~UP.cir cL off;ornp ounty of San Frnncisco CITYANDZIPCODE:San Francis~, CA 94102 BRANCH NAME:Civic Center Courthouse FEB 13 2020 LEGALIST; INC., a Delaware corporation PLAll'JTIFF; DEFENDANT: RUSSEL MYR1CK, an indiviqmU; RDM; LEO AL GROUP, a California sole . propri(,torship D DOES1 TO _ _ _ __ CONTRACT pcoMPLAINT D AMENDED COMPLAINT (Number): 0 CROSS-COMPLAINT CJ AMENDED CROSS-COMPLAINT (Number): jurisdiction (check all that apply): CASE NUMBER: CJ ACTION IS A LIMITED CIVIL CASE Amount demanded .0 does not exceed $10,000 . D e.xceeds $10,000 but does not exceed $25,000 f::Z:] ACTION 1.S AN UNLIMITED CIVIL CA$E (exceeds $25,000) 0 ACTION IS RECLASSIFIED by this amended complaint ot cross-complaint CGC -20-58293 , O from limited to unlimited D from unlimited t o limited 1. Plaintiff" (nam,e pr 11ames): LEGALIST, INC., a Delaware corporation alleges causes of action against defe ndant* (name or names): RUSSEL MYRICK, an individual; RDM LEGAL GROUP, a California sole proprietorship 2. This pleading, including attachments and exhibits, consists of the following number of pages: 6 3. a. l:cach,plaintiffnamed above is a competent aqult [Z] exceptplaintiff (name): LEGALIST, INC., a Oelaware corporation (1) [Z]a corporation qualified to do business in Califomia (2)CJan unincorporated entity (describfJ): (3) C ] other (specify): b.D Pl~intiff (name) : a. W has complied with the fictitious business name laws and is doing business under the fictitious name (specify): b.D has complied with all licensjng requirements as a licensed (specify): c, D Information about additional plaintiffs who ate not qompetent aduJts is shown in Attachment 3c. 4. a. Eacti defencfant riamed above is a ·natural person [2J except defendant (name): RDM Legal Group Oexcep,t defendant (nart1e): (1) Oa business organiz:ation, form unknown (1)D a business oraanization, form unknown (2),0 a corporation (2)D a corporation (3)0 an unincorporated entity (describe): (3) D an unincorporated entity (describe): (4)D a public entity (de.scribe): (4) D a put;,lic entity (de.scribe).' (5) [2] other (specify): CA sole ,proprietorship (5) O_other (specify): ·• Jrlhls form Is used as a cross~compleint, plaintirr·means cross •complainanl end defenda('lt me·Ms cross-defen~nl Page 1 of 2 form Approved for Option.• ! Use Judicial Council of Calilomla, COMP LAI NT-Contract PLD-c-QOl [Rev. January 1,,2007) PLD-C-001 . SHORT TITLE: .cASE NUMBER: LEGALIST, lNC. v. MYRICK, et al.. 4. (Continued) b. The true names of defendants sued as Does are unknown to plaintiff. ( 1) D Doe defendants (specify Doe numbers): ---~----___,_ _ _ were the agents or employees of the miri'led defendant1; and actecl within the scope of that agency or employment. · (2)D Doe ,defendants (specify Doe numbers): _ _ _ __ _ _ _ __ are persons whose capacities are 1.kikhown to plaintiff. c.D Information aboutaddit\onal defendants who are not natural persons is contained in Attachment 4c. d.D Defendants who are joined under Code of Civil Procedure section 382 are (names): 5;D Plaintiff is required to comply with a claims statute, _ and · a. D has complied with applicable claims statutes, or b. [j is excused from con,plying b·ecause (specify): 6. D This action is subject to D·civil Code section 1812.10 CJ Civil Coel!'l section 2984.4. 7. This court is the proper court·because a. D ·a defendant entered into the contract here. b. Q a defendant Jived here when the .contract was entered into. c. D a defendant lives here now. d. 0 the contract was to be performed here. e. -□ a defendant is a corporation or unincorporated association and its principal place of business is here. f. D real property that is the subject o'f this action is located here. g. D other (specify): 8. The following cause_s of action a~ attached and the statements above apply to each (each complaint must have one or more causes of action attached): W Bre.ach of Contract. D Common Counts D Other (specify): 9. c:=l Other allegations: 10. Plaintiff prays for judgrnent for costs of suit; for such refief;;is is fair, just, arid equitaole; and fot a. [l] damages of: $ 573,287.96 .b.[LJ interest on .the damages D · (1) according to proof (2),W 4 at the rate of (specify): December 5, 2019 percent per year from (date): c. 11] attorney's fees (1)0 of:$ (2) [Z] according to proof. d. [ZJ other (specify): Additional damages of $342.47 per day after date of fiUng (2/12/20). 11 .D The paragraphs ofthis pleading alleged on information and belief are as follows.(specify paragraph numl)ers): Date: February 12, 2020 ► Christopher D. Sullivan (lYPE O~ PR!NT NAME) (If you ,wish to verify this pleading_, affix a verification.) Plf'l.c-001 (R$v. january 1, 2007] COMPLAINT-Contract Pagli 2 of 2 PLD-C-001 (1) SHORT TITLE: CASE NUMBER: LEGALIST, INC. v. MYRlCK, etal. FIRST CAUSE OF ACTI.O N-Breach of Contract ATTACHMENT TO W Complaint □,. Cross - Complaint (Use a separate cause of action form for each cause of action-) BC-1. LEGALIST, INC., a Delaware corporation Plaintiff (name) ; December 6, 2018 alleges that on or about (date): a ill. written c::J. oral q other ($pecify): agreement was mc;Jde between (name parties to agreement): LEGALIST, INC. and{a) RUSSEL MYRICK and (b) RDM LEGAL GROUP D A copy of the agreement is attached as Exhibit.A, or · [Z] The essential terms of the agreemeni:[l] are stated in Attachment BC-1D are as follows (specify): BC-2. on or aboui (dates): December 5, 2019 defendant breached the agreement by D [ZJ the acts specified in A1tacliment BC-2 the following acts (specify): Failing to (a) direct defendant in the matter entitled Blanchette v. Competitor Group, Inc., et al. ("Competitor Group") to pay Legalist, Inc. directly all amounts due to Legalist, Inc. pursuant to the parties' agreement; (b) hold all payments Defendants received from Comp~titor Group in a jointly-controlled escrow account pursu