Preview
INDEX NO. 150373/2014
FILED: NEW YORK COUNTY CLERK 0371372014
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 03/17/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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MATEO EXPRESS, INC.,
Index No.: 150373/14
Plaintiff,
-against- NOTICE OF MOTION
JOHN PAUL MULTISERVICES, INC. and FE M.
LAVANDIER,
Defendants.
mete nn nnn ene ene ene n ene nen en en ne nnene
PLEASE TAKE NOTICE that upon the affidavit of Andrew R. Peck, Esq., sworn to on
the 14" day of March 2014 and attached hereto as Exhibit 1, and upon the summons and verified
complaint heretofore served herein, with proof of service thereof, plaintiff Mateo Express, Inc.
(“Mateo”) will move this court (in room 130) pursuant to N.Y. C.P.L.R. 3215(a) at the
courthouse, located at 60 Centre Street, New York, County of New York, State of New York, on
the 7” day of April 2014 at 9:30 o’clock in the forenoon of that day, or as soon thereafter as
counsel can be heard, for an order directing the entry of judgment in favor of the Plaintiff and
against the defendants John Paul Multiservices, Inc. (“JPM”) and Fe M. Lavandier (“Lavandier’’)
for the relief demanded in the verified complaint, upon the ground that the defendants JPM and
Lavandier have failed to appear or otherwise respond to the verified complaint, and for such
other and further relief as may be just, proper, and equitable. The above-entitled action is for a
breach of contract, breach of a guarantee, conversion and punitive damages.
Pursuant to N.Y. C.P.L.R. 2214(b), answering affidavits, if any, are required to be served
upon the undersigned at least seven days before the return date of this motion.
Dated: March 13, 2014 MERLE, BROWN & NAKAMURA, P.C
New York, New York
By pdbierle
Andrew Peck
Stephen Nakamura
Attorneys for Plaintiff
90 Broad Street, Suite 2201
New York, New York 10004
Tel. (212) 471-2990
Fax (212) 471-2997
E-mail: a.peck@mbnpc.com
To: John Paul Multiservices, Inc.
1180 Stratford Ave.
Bronx, NY 10472
Fe M. Lavandier
110 Seaman Ave., Apt. 6H
New York, NY 10034
EXHIBIT 1
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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MATEO EXPRESS, INC.,
Index No.: 150373/14
Plaintiff,
-against- AFFIRMATION AS TO
DEFAULT
JOHN PAUL MULTISERVICES, INC. and FE M.
LAVANDIER,
Defendants.
meee eee eee een eee nen en nen en ene ncnee,
ANDREW R. PECK, ESQ., an attorney duly admitted to practice law in the courts of the
State of New York does hereby affirm that the following is true under penalties of perjury:
1. I am an associate of the law firm Merle, Brown & Nakamura, P.C., the attorney for the
plaintiff in the above-captioned action, Mateo Express, Inc.
2. The above-entitled action was commenced by the personal service of a summons and
verified complaint, a copy of which is annexed hereto as Exhibit A, upon the defendant Fe M.
Lavandier on the 16th day of January 2014. On the 16" day of January 2014, the defendant John
Paul Multiservices, Inc. was served with the summons and verified complaint pursuant to
Section 306(b) of the Business Corporation Law. Affidavits of service on the defendants Fe M.
Lavandier and John Paul Multiservices, Inc. are attached hereto as Exhibit B.
3. The time for the defendants to answer or move with respect to the verified complaint
has expired, and the defendants have not answered or moved with respect to the verified
complaint.
4. The defendants’ time to plead has not been extended, and they are now in default in
pleading.
5. The notices required by N.Y. C.P.L.R. 3215(g) were duly mailed on the 30" day of
January 2014. A copy of the affidavits of mailing on the defendants Fe M. Lavandier and John
Paul Multiservices, Inc., with proof of mailing, are attached hereto as Exhibit C.
6. Attached hereto as Exhibit D is an Affidavit of Non-Military Service for the Defendant
Fe M. Lavandier.
7. As set forth in the Verified Complaint, plaintiff Mateo Express, Inc. (“Mateo”) is in the
business of transmitting money abroad and is licensed to do so by the New York State Banking
Department. The New York State Banking Law authorizes licensed money transmitters, such as
Mateo, to appoint an agent or series of agents to accept cash funds from the public for further
transmission overseas.
On or around December 13, 2009, Mateo and defendant John Paul Multiservices, Inc.
(“JPM”) entered into an agency agreement, pursuant to which Mateo appointed JPM as its agent
(the “Agency Agreement”). Contemporaneously therewith, defendant Fe M. Lavandier
(“Lavandier”), the owner of JPM, executed a personal guaranty (the “Guaranty”). The Guaranty
provided that in the event JPM became indebted to Mateo, Lavandier would be personally liable
for the debts of JPM. Further, the Guaranty authorized Mateo to proceed directly against
Lavandier in the event of JPM’s indebtedness to Mateo, without having to attempt to collect
from JPM first.
When an individual desires to send money abroad via Mateo’s money transmission
services, the customer visits an agent location, such as JPM’s storefront. The customer entrusts
the funds to the agent and provides the agent with written payment instructions and details
regarding the sender and the overseas beneficiary. The agent then notifies Mateo of the details
of the transaction via Mateo’s computer software, provided by Mateo to the agent at the time of
entering into an agency agreement, which is communicated to Mateo in real-time. Mateo then
notifies its foreign correspondent, as designated by Mateo, in the country to which the funds are
to be transmitted. The foreign correspondent then begins delivering the funds to the ultimate
beneficiary. At that point, Mateo becomes indebted to the foreign correspondent. Stateside,
Mateo then collects the funds from the agent, less the agent’s commission, and deposits the funds
into Mateo’s account. Mateo then pays the foreign correspondent and retains a portion of the
funds as Mateo’s commission for the transaction.
The Agency Agreement requires JPM, as an agent of Mateo, to deliver any such funds
due and owing to Mateo as a result of any money transmission transactions by 12:00 noon on the
day after the transmission(s) occurred. Mateo and JPM had a successful agency relationship
until December, 2013, at which time JPM had accumulated a significant unpaid balance due and
owing to Mateo.
On or around December 30, 2013, JPM owed Mateo $54,044.57. On December 30,
2013, Lavandier advised a Mateo employee that the funds would be available for pick-up the
following day, pursuant to the terms of the Agency Agreement. However, on December 31,
2013, Lavandier stated to the same Mateo employee that due to the large amount of the funds,
Lavandier had taken the funds to her home for safekeeping and that she would personally deposit
the funds at another Mateo agency location the following day. Lavandier failed to deliver the
funds as promised.
On January 3, 2014, Lavandier admitted to Mr. Frank Ortiz (“Ortiz”), Mateo’s Director
of Credit and Collections, that she had taken the funds to her home for her own personal use.
Lavandier further admitted that she took the funds to pay off her personal creditors and that this
had been her plan.
Thus, there is a verified amount due and owing of $54,044.57, plus pre- and post-
judgment interest. In addition, Mateo is seeking punitive damages as a result of Lavandier’s
malicious actions and admitted theft.
8. Plaintiffs form order is attached hereto as Exhibit E.
WHEREFORE, given the foregoing and for the reasons and facts set forth in the
Verified Complaint, plaintiff Mateo Express, Inc. respectfully requests:
1 On Plaintiff's First Cause of Action, that the Court enter judgment on the
issue of liability in favor of Mateo Express, Inc. and against the defendant
John Paul Multiservices, Inc. for breach of contract;
Il On Plaintiff's Second Cause of Action, that the Court enter judgment on
the issue of liability in favor of Mateo Express, Inc. and against the
defendant Fe M. Lavandier for breach of a guaranty;
iii. On Plaintiff's First and Second Causes of Action, that the Court award
damages in favor of Mateo Express, Inc. and against the defendants John
Paul Multiservices, Inc. and Fe M. Lavandier, jointly and severally, in the
amount of $54,044.57, together with statutory pre- and post-judgment
interest, and costs of collection;
Iv. On Plaintiff's Third Cause of Action, that the Court enter judgment on the
issue of liability in favor of Mateo Express, Inc. and against the defendant
Fe M. Lavandier and that the Court schedule an inquest to assess punitive
damages to be awarded to Mateo Express, Inc. as a result of Fe M.
Lavandier’s admitted pre-meditated conversion; and
Vv. Such other and further relief as the Court may deem just, proper and
equitable under the circumstances.
Dated: March 13, 2014 MERLE, BROWN & NAKAMURA, P.C.
New York, New York
By: Ade» L-
Andrew Peck
Stephen Nakamura
Attorneys for Plaintiff
90 Broad Street, Suite 2201
New York, New York 10004
Tel. (212) 471-2990
Fax (212) 471-2997
E-mail: a.peck@mbnpc.com
To: John Paul Multiservices, Inc.
1180 Stratford Ave.
Bronx, NY 10472
Fe M. Lavandier
110 Seaman Ave., Apt. 6H
New York, NY 10034
EXHIBIT A
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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MATEO EXPRESS INC.,
Index No.:
Plaintiff,
-against- SUMMONS
JOHN PAUL MULTISERVICES, INC. and FE M.
LAVANDIER,
Defendants.
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TO THE ABOVE NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED and required to serve upon Plaintiff's attommey an
answer to the complaint in this action within twenty (20) days after the service of this summons,
exclusive of the day of service, or within thirty (30) days after service is complete if this
summons is not personally delivered to you within the State of New York. In case of your
failure to answer, judgment will be taken against you by default for the relief demanded in the
complaint.
The basis of venue designated by plaintiff
is the residence of plaintiff. The address of
plaintiffis 350 West 31" Street, New York, New York 10001.
Dated: January 15, 2014
New York, New York . Pe & NAKAMURA, P.C.
Stephen Nakamura
Andrew Peck
Merle, Brown & Nakamura, P.C.
Attorneys for Plaintiff
90 Broad Street, Suite 2201
New York, New York 10004
Tel. (212) 471-2990
Fax (212) 471-2997
E-mail: s.nakamura@mbnpec.com
To: John Paul Multiservices
1180 Stratford Ave.
Bronx, NY 10472
Fe M. Lavandier
110 Seaman Ave., Apt. 6H
New York, NY 10034
SUPREME COURT OF THE STATE OF NEW YORK.
COUNTY OF NEW YORK
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MATEO EXPRESS, INC.,
Index No.:
Plaintiff,
~against- VERIFIED COMPLAINT
JOHN PAUL MULTISERVICES, INC. and FE M.
LAVANDIER,
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ge neennrenne arses,
Plaintiff Mateo Express, Inc., by its attomeys, Merle, Brown & Nakamura, P.C., by way
of complaint against defendants John Paul Multiservices, Inc. and Fe M. Lavandier, alleges and
says as follows:
ONS C: NI
1 Mateo Express, Inc. (“Plaintiff’ or “Mateo”) is a corporation organized under the
laws of the State of New York, with its principal place of business located at 350 West 31"
Street, New York, New York 10001.
2 Mateo is engaged in the business of transmitting money abroad and is licensed
to
do so by the New York State Banking Department.
3. Upon information and belief, defendant John Paul Multiservices, Inc. (“JPM”) is a
New York corporation with its principal place of business located at 1180 Stratford Avenue,
Bronx, New York 10472,
4 Upon information and belief, JPM is owned by defendant Fe M. Lavandier
(‘Lavandier”), who upon information and belief is an individual who resides at 110 Seaman
Avenue, Apt. 6H, New York, New York 10034.
5 As set forth in paragraph
two (2) above, Plaintiff Mateo is engaged
in the business
of transmitting money abroad and is licensed to do so by the New York State Banking
Department, pursuant to Article XIII of the New York State Banking Law (“Article XIII”).
6. Article XIII authorizes Mateo, as a licensed transmitter of money, to appoint
agents within the State of New York to accept cash funds from the public for further
transmission to beneficiaries overseas.
7.
The transmission of funds abroad by Mateo, through its agents, proceeds as
follows:
&. Customers desiring to transmit funds abroad visit agent locations, entrust
funds to Mateo’s agents, and provide the agents with written payment instructions and detailed
information concerming both the sender and beneficiary af the funds;
b Upon receiving the funds from customers, the agents then notify Mateo of
the details of each transaction;
c. Upon receiving this information from the agents, end in order to effectuate
the payment of funds to beneficiuries overseas, Mateo then delivers the payment instructions to
foreign correspondents which Mateo has appointed in each of the countries to which Matco’s
customers send funds;
4. The foreign sorrespondeni immediately begin delivering funds to
beneficiaries as directed by customers, and Mateo is thereupon immediately indebted to the
foreign correspondents for each delivery made;
a Mateo collects the funds entrusted to the agents by the customers, less the
agents’ commissions, and deposits such funds into Mateo’s bank account;
f. Mateo pays the foreign correspondent for all deliveries made plus a
commission or fee owed to the correspondent for each delivery made; and
&. Matec retains a portion of the fee paid by the customer for each
tansmnission as Mateos fee for completing the transmission as requested.
8 On or around December 13, 2009, Mateo and JPM entered into a Mateo Express
Agency Agreement (the “Agreement”) with respectto JPM’s business located at 1180 Stratford
Avenue, Bronx, New York 10472, pursuant to which JPM was appointed as Mareo’s agent for
the purpose of receiving funds from the public for further transmission abroad by Mateo. A copy
of the Agreement is attached hereto as ExhibitA.
9 In addition, also on December 13, 2009, defendant Lavandier executed a Personal
Indemnity and Guaranty (the Guaranty”), pursuantto which Lavandier personally agreed to:
“[TJhe prompt payment in full by AGENT [JPM] (as defined in the
Agreement) of all sums and amounts payable under such Agreement and
the prompt and complete performance by AGENT of all other obligations
thereunder.”
and further agreed that
“[Wlithout PRINCIPAL [Mateo] fitst having to proceed against AGENT,
to pay on demand all sums due to become due to PRINCIPAL under this
Agreement and all damages, losses, costs, attorney’s fees and expenses
which PRINCIPAL may suffer by reason of AGENT"s or any of [my]
failure[] to pay or perform any obligation under the Agreement. This
guatanty is an absolute, unconditional and continuing guaranty of
Payment.”
A copy of the Guaranty is attached hereto as Exhibit B.
10. Upon entering into the Agreement, JPM and Lavandier, by virtue of her Guaranty,
agreed to “accept and hold all monies collected for transmission in trust and as fiduciary for”
Mateo, See Agreement (Exhibit A) at IV(A).
11, JPM and Lavandier further agreed to pay Mateo the total amount of funds
received by each agent location for transmission abroad, plus all commission due to Mateo, by
12:00 noon the day following the defendants’ receipt of funds for transmission. See Agreement
(ExhibitA) at{ IV(D).
12. As an agent of Mateo, JPM collected, on behalf of Mateo, funds from the public
for further transmission to beneficiaries overseas plus fees paid by each customer thereon
without incident. However, as of December 30, 2013, JPM had a significant unpaid balance
owed to Mateo,
13. Despite the fact that the intended beneficiaries were paid, and despite the fact that
Mateo paid its foreign correspondents, the defendants had failed to deliver funds to Mateo as
Tequired by the Agreement.
14, Anytime that Mateo executes an agency agreement with a new agent, Mateo
equips that new agent with Mateo’s computer software (the “Mateo Software”). The Mateo
Software is a computer program that is downloaded and installed on the computers located at
each agency’s premises.
15. When a Mateo customer desires to transmit money, the agent enters the following
information into the Mateo Software program: i) the amount received by the agent from the
customer; if) the agent’s respective commission; and iii) the remaining amount that is to be
delivered to Mateo. When entered, this information becomes immediately available to Mateo on
Mateo’s computers at its headquarters,
16. Thus, every transaction that occurs on a given day is transmitted to Mateo’s
intemal accounting system via the Mateo Software program.
17, Therefore, the information entered into Mateo’s Software program, which appears
on Mateo’s computer systems and internal accounting system, is based entirely on information
entered by the agent.
18. JPM, like all of Mateo’s other agents, had the Mateo Software installed on IPM’s
computers,
19. Attached hereto as ExhibitC is a print out from Mateo’s internal accounting
system which demonstrates that as of December 31, 2013, JPM (based on the information
entered into the Mateo Software by JPM) owed Mateo $54,044.57.
20. On or around December 30, 2013, Lavandier advised Mr. Jorge Jimenez
(‘Simenez"), an employee of Mateo , that the past-due funds would be promptly made available
for pick up by Mateo.
21. On December 31, 2013, Lavandier indicated that due to the large amount of the
funds, she had taken these funds to her home. Lavandier then stated to Mr. Jimenez and another
Mateo employee (in two separate phone conversations) that she was going to deposit the funds
(totaling $54,044.57) at a Mateo agency located at 170 Dyckman Street in Manhattan, Lavandier
failed to deliver the funds to Mateo as promised.
22 As such, JPM is indebted to Mateo in the total amount of $54,044.57,
representing the funds that JPM collected from the public and was required to deliver to Mateo.
23, On Jennary 3, 2014, Lavandier admitted to Mr. Frank Ortiz (“Ortiz”), Plaintiff's
Director of Credit and Collections, that she personally took the arnounts due and owing to
Mateo, totaling $54,044.57, for her own benefit for the purpose of paying other creditors and that
this had been her plan.
24, Despite due demand, JPM and Lavandier have failed and refused to make the
required payment to Mateo. The amount presently due and owing to Mateo by JPM and
Lavandier totals $54,044.57.
(Fo ent)
23. Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1
through 24 as though set forth fully and at length herein.
26. JPM?’s failure to remit funds to Mateo as required by the Agreement constitutes a
breach of the Agreement.
27. As a result of JPM’s breach of the Agreement, Mateo has been damaged in the
amount of $54,044.57, plus statutory pre- and post-judgment interest.
(or
Layandier’s
Breach of the Guaranty)
28. Plaintiff repeats and realleges each and every allegation set forth in paragraphs |
through 27 as though set forth fully and at length herein.
29. JPM is indebted to Plaintiff in the amount of $54,044.57, together with statutory
pre- and post-judgment interest.
30. Defendant Lavandier, by executing the Guaranty attached to the Agreement
between JPM and Plaintiff, personally guaranteed all of JPM’s obligations under its Agreement
with Plaintiff, and further agreed to be responsible for all sttorneys” fees incurred by Plaintiff as
a result of JPM's failure to perform its obligations under the Agreement, See Guaranty (Exhibit
B)
31. By virtue of the Defendant Lavandier’s unconditional guaranty, Lavandier owes
Plaintiff the sum of $54,044.57, plus statutory pre- and post-judgment interest thereon,
reasonable attorneys’ fees as provided for by the Guaranty, and costs of collection.
UNT.
1 jf ’s Fu
32. Plaintiff repeats and realleges each and every allegation set forth in paragraphs |
through 31 as though set forth fully and at length herein.
33. Defendant Lavandier admitted to Mr. Ortiz that: i) she had lied to Mr. Jiminez;
and ii) that it had been her plan to take the $54,044.57 (the “Converted Funds”) and use it to pay
off creditors.
34, As the lawful owner of the Converted Funds currently in the Defendant
Lavandier’s possession, Plaintiff has an ownership and possessory right to the funds superior to
all others.
35, As the lawful owner of the Converted Funds with a right of ownership and
possession superior to ail others, Plaintiff had the authority to request delivery and possession of
the Converted Funds from Lavandier.
36. Although JPM was preliminarily the lawful recipient of the Converted Funds,
Lavandier never even became an authorized custodian of the Converted Funds. Moreover, she
became an unauthorized custodian of the Converted Funds the day she took them to her home.
37, Lavandier’s exercise of dominion and control over the Converted Funds was to
the exclusion and detriment of Plaintiff's rights of possession, control and ownership of the
Converted Funds.
38. Accordingly, when Lavandier refused Plaintiffs awful demands for delivery of
the Converted Funds, Lavandier became @ converter of the Converted Funds, funds that duly
belong to Mateo.
39, The money that Lavandier took is money that JPM collected from the public for
further transmission to beneficiaries overseas.
40. The efficacy, safety and security of money transmission services are an extremely
important aspect of the non-banking financial institution system in New York.
41. To this end, the fact that Lavandier converted money for her own personal benefit
disrupts the integrity of the New York non-bank financial institution system.
42, Further, Lavandier’s conduct, which was admittedly premeditated, mandates not
only that she be liable for $54,044.57 for the conversion of Mateo’s funds, but that the Court
make an example of Lavandier’s egregious misconduct by awarding punitive damages to Mateo
in the amount of $500,000.00.
WHEREFORE, plaintiff Mateo Express, Inc. demands judgment in its favor and against
the defendants as follows:
L On Plaintiff's First Cause of Action, judgment in favor of Mateo Express, Inc. and
against John Paul Multiservices, Inc. in the amount of $54,044.57, together with
pre- and post-judgment interest, and costs of collection;
i On Plaintif’s Second Cause of Action, judgment in favor of Mateo Express, Inc.
and against Fe M. Lavandier in the amount of $54,044.57, together with pre- and
post-judgment interest, attomeys’ fees as provided for by the Guaranty, and costs
of collection; and
iii. On Plaintiff's Third Cause of Action, judgment in favor of Mateo Express, Inc.
and against Fe M. Lavandier in the amount of $54,044.57, together with pre- and
post-judgment interest, and costs of collection;
Iv. Punitive damages in the amount of $500,000.00 for the willful and premeditated
conversion of Mateo’s funds; and
Such other and further relief as the Court may deem just, proper and equitable
under the circumstances.
Dated: January 15, 2014 MERLE, BROWN & NAKAMURA, P.C.
New York, New York
By: V2 <—
Stephen Nakamura
Andrew Peck
Attorneys for plaintiff
90 Broad Street, Suite 2201
New York, New York 10004
Tel. (212) 471-2990
Fax (212) 471-2997
E-mail: s.nakamura@mbnpe.com
VERIFICATION
STATE OF NEW YORK ?
) ss:
COUNTY OF NEW YORK )
CARLOS RIVERA being duly sworn, deposes and says:
I am the President of the Plaintiff, Mateo Express Inc. I have read the foregoing
COMPLAINT, know the contents thereof, and the same arg true to my knowledge, exccpt those
matters therein which are stated to be alleged on information and belief, and as to those matters I
believe them to be true.
I farther state that the source of my information and the grounds of my belief are derived
from: i) my knowledge of Mateo Express, Inc. as President; ii) a review of Mateo Express, Inc.’s
regularly-kept business records; and iii) interviews of and conversations with Mateo Express,
Inc. employees.
Cra
CARLOS RIVERA
President
Mateo Express, Inc.
to before
me this
of January, 2014
so eK Notary ate tate oF ew Yor:
tary Public ua oa iythugs Soeinty
Center 1% i stity
ion Saas C6 12514
19
ICATIO!
STATE OF NEW YORK )
) 88:
COUNTY OF NEW YORK )
FRANK GRTIZ being duly sworn, deposes and says:
Tain the Director of Credit and Collections of the Plaintiff, Mateo Express Inc. I have
read the annexed COMPLAINT, know the contents thereof, and with respect to paragraphs
twenty-three (23) and thirty-three (33) of the COMPLAINT, the same are true to my
knowledge. With respect to those matters therein which are stated to be alleged on information
and belief, as to those matters I believe them to be true,
, Credit and Collections
Mateo Express, Inc.
Sworn to before me this
‘day of January, 2014
Public Notary Put StaiteOf New York
CINDSIaag5
Qualltieg in Cour
Gettiied onin Ea
New rk Cow
nmi ission res OB Baela.
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EXHIBIT A
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ny Ines, miaune, thant, bingiery, forge ney or thar crit, Ses Seve rosie
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PRINCIPAL, The ddly Wantucilen report must
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und the undtelgned AGENT, and Te aubject tb tha approval of ‘The stove Information shpl| be trenemitted by’ tax of Sompul te PRINCIPAL by 5:00) _
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hereby sppolnis AGENT a¢ He AGENT for the transmistlon of mony a3 set toth herein PRINSIPAL ‘ea sat forh on. seyanslaresby wre
and AGENT ancepts such opp PRINCIPAL'S wccount must be avaiable a¢ goad fundsIn PRINCIPAL'S atcount am
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condition, PRINCIPAL wil nally AGENT waa 80 days e ears nancial‘meal ie AGENT sai PRINCIPAL, un 9(pantiy tosis, ba a master schedite
‘unsecaptetie,‘and this Agreemardwal hersupon term arolng ab raneactons canduejed thal raanth which api shal be setverad 1
DB) AGENT pertonns.ihe services haaunder ta the cate Of News York than Senadota M coieh a, TC ibn 8 anh hh a
A and B shall apply. given, in ation, a canned of wach frarigpationsnd
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ate nates F)__ PRINCIPAL haa developed ong Samponer sorry fs, srxpare Ices
dequlalicnsof he INGIFAL, al as amended from time fo wma, nd dally end monthly eeporis, ioanipnnd AGENT so ec prone! wth
F} AGENT chou, a1 {16 own cast and extnae, ds ante PRINCIPAL sohware0 opesa{é sume: PRINCIPAL,
(om office prendaes farm ntl fo sacl As Gusines.
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Ruling
Y.P. VS. WELLS FARGO & COMPANY, ET AL
Jul 10, 2024 |
CGC24613065
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 12. DEFENDANT EARL IGNACIO AND WELLS FARGO BANK, N.A.'s Motion To Compel Arbitration. Defendants Wells Fargo Bank, N.A. and Earl Ignacio's motion to compel arbitration and stay is denied. (The Court's complete tentative ruling has been emailed to the parties.) For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
ADAM AMER VS RITA NORIEGA, ET AL.
Jul 09, 2024 |
23STCV10432
Case Number:
23STCV10432
Hearing Date:
July 9, 2024
Dept:
54
Superior Court of California
County of Los Angeles
Adam Amer,
Plaintiff,
Case No.:
23STCV10432
vs.
Tentative Ruling
Rita Noriega, et al.,
Defendants.
Hearing Date: July 9, 2024
Department 54, Judge Maurice A. Leiter
Motion to Determine Good Faith Settlement
Moving Party
: Defendants On Central Realty Inc. dba Coldwell Banker Hallmark Realty, Sevada Mkrdichian, Redfin Corporation, and Alin Glogovicean
Responding Party
: None
T/R
:
DEFENDANTS MOTION TO FOR APPROVAL OF GOOD FAITH SETTLEMENT IS GRANTED.
DEFENDANTS TO NOTICE.
If the parties wish to submit on the tentative, please email the courtroom at¿
SMCdept54@lacourt.org
¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.
The Court considers the moving papers.
No opposition was filed.
Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors upon giving notice in the manner provided in Code of Civil Procedure, section 1005(b).
(CCP § 877.6(a)(1).)
A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.
(CCP § 877.6 (c).)
The party contesting the settlement bears the burden of proving that the settlement is in bad faith.
(CCP § 877.6 (d).)
Defendants On Central Realty Inc. dba Coldwell Banker Hallmark Realty, Sevada Mkrdichian, Redfin Corporation, and Alin Glogovicean apply for approval of their good faith settlement with Plaintiffs. After extensive negotiations Defendants agreed to settle with Plaintiffs for $30,000. Defendants admit no fault, and state the settlement is proportionate to their potential share of liability. Only one cause of action was brought against them. There is no challenge to the settlement, and the non-settling defendants have defaulted. The Court finds that the settlement is in good faith.
The application is GRANTED.
Ruling
JONATHAN NEIL & ASSOCIATES, INC. VS HEALING HANDS CARE, INC., A CALIFORNIA CORPORATION, ET AL.
Jul 09, 2024 |
23STCV20520
Case Number:
23STCV20520
Hearing Date:
July 9, 2024
Dept:
40
Superior Court of California
County of Los Angeles
Department 40
Jonathan Neil & Associates, Inc.,
Plaintiff,
v.
Healing Hands Care, Inc., a California Corporation; Ara Tovmassian aka Ara Mesrop Tovmassian and DOES 1 through 50, inclusive,
Defendants.
Case No.:
23STCV20520
Hearing Date:
7/9/24
Trial Date:
12/6/24
[TENTATIVE] RULING RE:
Plaintiff
Jonathan Neil & Associates, Inc.s Motion to Deem Admissions Admitted and for Monetary Sanctions (Attorney Fees and Costs) Against Defendant Ara Tovmassian in the Amount of $850.00 [Res ID # 0191].
I.
Background
On January 2, 2024, Plaintiff purportedly served Requests for Admission (RFAs), Set One, on Defendant Tovmassian. Responses to RFAs, Set One, were purportedly due on February 6, 2024, 35 days after purported service by mail on January 2, 2024.
Defendant Tovmassian allegedly failed to serve responses to RFAs, Set One, by February 6, 2024.
On March 20, 2024, based on Defendant Tovmassians alleged non-response to RFAs, Set One, Plaintiff filed a motion to deem the truth of RFAs, Set One, admitted as against Defendant Tovmassian. Plaintiffs motion also requests monetary sanctions in the amount of $850 against Defendant Tovmassian. Plaintiff served the motion on Defendant Tovmassian by mail that same day.
Defendant Tovmassian has failed to oppose Plaintiffs motion despite service.
Plaintiffs motion is now before the Court.
II.
Motion to Deem Truth of RFAs Admitted and Request for Sanctions
A.
Motion to Deem Truth of RFAs Admitted
:
GRANTED.
1.
Legal Standard
The discovering party can make a motion to deem as admitted any unanswered requests for admission or any requests answered in a late or unverified response. (See Code Civ. Proc., § 2033.280, subd. (b); Code Civ. Proc., § 2033.240, subd. (a) [RFA responses must be signed by responding party under oath]; see
Appleton v. Superior Court
(1988) 206 Cal.App.3d 632, 636 [unsworn response to RFAs is treated like no response].) These requests are not automatically deemed admitted; the discovery party must make the motion. (See Code Civ. Proc., § 2033.280, subd. (b).)
To establish this ground, a movant must show:
(1) Proper service (see Code Civ. Proc., § 2033.070);
(2) Expiration of the deadline for the initial response 30 days after service or on date agreed to by parties (see Code Civ. Proc., § 2033.250, subds. (a), (b)); and
(3) That (a) the responding party served no response (Code Civ. Proc., § 2033.280, subd. (b)), (b) the propounding party served a late response (Code Civ. Proc., § 2033.280, subd. (b)); or (3) the responding party served an unsworn response (see
Appleton v. Superior Court
,
supra
, 206 Cal.App.3d at p. 636 [unsworn response to RFAs is treated like no response]).
A court must deny a motion to compel initial discovery where the discovery sought is outside the scope of discovery. (See
CBS, Inc. v. Superior Court
(1968) 263 Cal.App.2d 12, 19; see also Code. Civ. Proc., § 2017.010 [scope of discovery].)
2.
Courts Determination
The Court finds in favor of Plaintiff.
The moving papers points and authorities contend that RFAs, Set One, was served on Defendant Tovmassian on January 2, 2024. (Mot., pp. 3 [service], 5 [signature, not sworn].) However, the points and authorities are unsworn and not entitled to evidentiary credence. (
In re Zeth S.
(2003) 31 Cal.4th 396, 413 [the unsworn statements of counsel are not evidence];
South Sutter, LLC v. LJ Sutter Partners, L.P.
(2011) 193 Cal.App.4th 634, 668, fn. 14 [unsworn arguments of counsel in a legal memorandum are not evidence].)
The original Natalia A. Minassian counsel declaration filed on March 20, 2024 did not support service on January 2, 2024, as to RFAs, Set One. However, at the initial hearing on July 2, 2024, the Court pointed out what appeared to
be an inadvertent failure to include substance in that declaration. The Court continued the hearing to July 9, 2024 to allow Plaintiffs counsel to address the error.
On July 3, 2024, Plaintiffs counsel filed a notice of errata and a revised Declaration of Natalia Minassian. It included both averments by counsel as well as attaching the Requests for Admission, along with the Proof of Service, showing service by mail on the Defendant on January 2, 2024. For this reason, the Court finds that service has been shown. Moreover, the evidence supports the fact that the discovery was served on the date alleged in the motion, and thus the Court finds no prejudice from the initial failure to attach the proof of service to the motion.
Second, Defendant has failed to oppose this motion, and did not appear at the initial hearing on July 2, 2024. The evidence in the moving papers sets forth that the Defendant did not respond, and this evidence is thus unrebutted.
Third, the court finds that the 17 RFAs are relevant to the facts involved in this case and are otherwise appropriate, clear and unambiguous.
Given these findings, the Court GRANTS Plaintiffs motion.
B.
Request for Sanctions
:
GRANTED.
1.
Legal Standard
The Court must award sanctions when a partys response is untimely, and the discovering party makes a motion to deem the requests admitted. (Code Civ. Proc., § 2033.280, subd. (c); see
Stover v. Bruntz
(2017) 12 Cal.App.5th 19, 31-32; see e.g.,
Appleton v. Superior Court
,
supra
, 206 Cal.App.3d at pp. 635-636 [sanctions are mandatory].)
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. (Cal. Rules of Court, rule 3.1348, subd. (a).)
2.
Courts Determination
The motion to deem admitted has been denied without prejudice, and Defendant has failed to respond or oppose this motion in any way. The requested sanctions of $850 for legal fees of $790 at an hourly rate of $395 and the $60 filing fee for the motion are eminently reasonable. Accordingly, the Court grants sanctions in the amount of $850.
III.
Conclusion
Plaintiff
Jonathan Neil & Associates, Inc.s Motion to Deem Admissions Admitted and for Monetary Sanctions (Attorney Fees and Costs) Against Defendant Ara Tovmassian in the Amount of $850.00 [Res ID # 0191] is GRANTED.
Sanctions in the amount of $850 are ordered to be paid to Hatkoff & Minassian within 30 days of this Order. Failure to do so could result in further sanctions as ordered by the Court.
Ruling
TALAL ALTAMIMI, ET AL. VS LIEF ORGANICS, LLC
Jul 10, 2024 |
23CHCV02417
Case Number:
23CHCV02417
Hearing Date:
July 10, 2024
Dept:
F47 Dept. F47
Date: 7/10/24
Case #23CHCV02417
MOTION TO STRIKE
Motion filed on 5/28/24.
MOVING PARTY: Defendant Lief Organics, LLC
RESPONDING PARTY: Plaintiff Mankind Essentials, Inc.
NOTICE: ok
RELIEF REQUESTED
: An order
striking the Second Amended Complaint filed by Plaintiff Mankind Essentials, Inc. and for sanctions against Plaintiff and Plaintiffs counsel in the amount of $4,042.50 pursuant to CCP 128.5.
RULING
: The motion is denied.
SUMMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of an agreement entered into by former plaintiffs Talal Altamimi, III (Altamimi) and Plaintiff Mankind Essentials, Inc. (Mankind/Plaintiff) and Defendant Lief Organics, LLC (Defendant) for the manufacture of fertility and dietary products for Mankind.
Based on three orders, Altamimi and Plaintiff paid Defendant deposits totaling $22,787.50.
Plaintiff alleges that Defendant failed to perform under the agreement.
On 8/11/23, Altamimi and Mankind filed this action against Defendant for: (1) Breach of Contract, (2) Fraudulent Deceit, (3) Breach of the Covenant of Good Faith and Fair Dealing, (4) Promissory Fraud and (5) Negligence.
After attempts to meet and confer regarding the issues Defendant had with the complaint were unsuccessful, on 11/20/23, Defendant filed and served a demurrer to the
original complaint.
On 12/28/23, 9 court days before the 1/11/24 hearing date on the demurrer, Plaintiff Mankind Essentials, Inc. (Plaintiff), alone, filed and served a First Amended Complaint which rendered the demurrer moot.
(
See
1/11/24 Minute Order citing CCP 472(a); CCP 1005(b)).
After meet and confer efforts failed to resolve the issues Defendant had with the First Amended Complaint, pursuant to an extension of time to respond to the First Amended Complaint, on 2/9/24, Defendant filed and served a demurrer to the 2
nd
, 4
th
and 5
th
causes of action in the First Amended Complaint.
On 3/7/24, the date a reply was due to be filed and served, Defendant filed and served a Notice of Non-Opposition to the demurrer.
See
CCP 1005(b)
On that same date and without any explanation, Plaintiff filed and served a late opposition to the demurrer.
On 3/8/24, Defendant filed and served a reply to the opposition.
On 3/14/24, the Court sustained the demurrer with 30 days leave to amend making a Second Amended Complaint due on or before 4/15/24.
(
See
3/14/24 Minute Order).
Plaintiff filed and served its Second Amended Complaint on 5/2/24.
Thereafter, Defendant contacted Plaintiff regarding the impropriety of filing the Second Amended Complaint beyond the deadline set by the Court and asked Plaintiffs counsel to withdraw the Second Amended Complaint.
(Bamford Decl. ¶¶6-7, Ex.C).
Plaintiff did not directly respond to the request to withdraw the Second Amended Complaint and has not withdrawn the pleading.
(Bamford Decl. ¶¶6-7).
On 5/28/24, Defendant filed and served the instant motion seeking an order striking the Second Amended Complaint filed by Plaintiff and for sanctions against Plaintiff and Plaintiffs counsel in the amount of $4,042.50 pursuant to CCP 128.5.
At the 5/29/24 Case Management Conference, former plaintiff Talal Altamimi represented that Plaintiff was no longer represented by counsel, although a substitution of attorney had not been filed.
(
See
5/29/24 Minute Order).
On 6/14/24, at the hearing on Defendants Motion to Compel Arbitration, Plaintiffs counsel represented that Plaintiffs counsel had substituted out; however, a substitution of attorney had still not been filed.
(
See
6/14/24 Minute Order).
At the same hearing, defense counsel represented to be in contact with Plaintiff; the parties had entered into a settlement agreement and requested the hearing on the motion be continued.
Id
.
Therefore, the hearing on the motion to compel arbitration was continued to 8/14/24.
Id
.
Despite the foregoing, on 7/2/24, Defendant filed a Notice of Non-Opposition to the instant motion to strike.
Also, on 7/2/24, Plaintiff filed a substitution of attorney indicating that former plaintiff, Talal Altamimi, is substituted in as counsel for Plaintiff.
As noted on the Substitution of Attorney form itself, unless Altamimi is an attorney, Altamimi cannot represent the corporate Plaintiff in court.
ANALYSIS
Defendant seeks to strike the Second Amended Complaint on the ground that it was not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court because it was filed beyond the 30-day deadline set forth in the Courts 3/14/24 order sustaining Defendants demurrer with 30 days leave to amend.
See
CCP 436(b).
Defendant also seeks sanctions against Plaintiff and Plaintiffs (former) counsel on the ground that the filing of the Second Amended Complaint beyond the court ordered deadline constitutes frivolous conduct.
See
CCP 128.5.
While the Second Amended Complaint was filed and served beyond the court-ordered deadline, Defendant has not shown that it has suffered any prejudice as a result of the late filing and service.
Similarly, the Court does not find the late filing and service of the Second Amended Complaint constitutes frivolous conduct which warrants the imposition of sanctions.
CONCLUSION
Based on the foregoing, the motion is denied.
As noted above, unless Talal Altamimi is an attorney, Altamimi cannot represent Plaintiff Mankind Essentials, Inc. in court.
Therefore, Altamimi cannot appear on behalf of Plaintiff at this hearing or any future hearing.
If Altamimi is not an attorney, Plaintiff
must obtain counsel before the next scheduled court hearing or the Court will set an Order to Show Cause as to why the action should not be dismissed.
Ruling
Edwards, et al. vs. General Motors LLC
Jul 10, 2024 |
22CV-0200334
EDWARDS, ET AL. VS. GENERAL MOTORS LLC
Case Number: 22CV-0200334
Tentative Ruling on Motion for Attorney Fees and Costs: Plaintiffs David and Stephanie
Edwards filed this action alleging violation of the Song-Beverly Consumer Warranty Act (“Act”)
against General Motors, LLC (“GM”) and Taylor Motors, Inc. (“TMI”) on August 4, 2022.
Following extensive motion practice, primarily concerning discovery issues, the parties settled the
matter on May 7, 2024. Pursuant to the Act, and the terms of the settlement agreement, Plaintiffs
are the prevailing party entitled to recover reasonable attorney fees and costs. Plaintiffs seek a total
of $319,464.80 in attorney fees and costs. This request consists of $149,773.50 in attorney fees
for 269.3 hours of work litigating this matter from August 5, 2022 to the present, a 2.0 multiplier,
and $19,917.80 in costs.
Objections to Evidence: Plaintiffs have raised 10 Objections to portions of the Declaration of
Cameron Major on the grounds that certain statements and supporting exhibits are improper
argument, lack foundation, are conclusory, and lack personal knowledge. The Objections are
OVERRULED.
Song-Beverly: The Song-Beverly Act contains a cost-shifting provision that specifically allows
prevailing buyers to recover their costs, including attorney’s fees. Civ. C. § 1794(d). The
attorney’s fee award is limited to the amount the court determines was reasonably incurred by the
buyer in commencing and prosecuting the action, based on actual time expended. The prevailing
buyer has the burden of proving the fees were both reasonably necessary to conduct the litigation
and reasonable in amount. Civil Code § 1794(d); Robertson v. Fleetwood Travel Trailers of
California, Inc., (2006) 144 Cal. App. 4th 785. The lodestar method applies to determining
attorney’s fees under the Song-Beverly Act. Id. at 817. When determining a reasonable attorney's
fee award, using the lodestar method, the judge begins by deciding the reasonable hours the
prevailing party's attorney spent on the case and multiplies that number by the prevailing hourly
rate for private attorneys in the community who conduct non-contingent litigation of the same
type. Doppes v Bentley Motors, Inc. (2009) 174 CA4th 967, 998. Plaintiff is entitled to be
compensated at rates that reflect the reasonable market value of their services in the community.
Serrano v. Unruh (1982) 32 Cal.3d 621, 643. In determining the amount of attorney's fees to
which a litigant is entitled, an experienced trial judge is the best judge of the value of professional
services rendered in his or her court. Granberry v. Islay Investments (1995) 9 Cal. 4th 738, 752.
Reasonableness of Hours: The court has discretion to decide which of the hours expended by the
attorneys were reasonably spent on litigation. Hammond v. Agran (2002) 99 Cal.App.4th 115,
133. The predicate of any attorney fee award is the necessity and usefulness of the conduct for
which compensation is sought. Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819,
846. The court’s focus in evaluating the fee request should be to provide a fee award reasonably
designed to completely compensate attorneys for the services provided. The starting point for this
determination is the attorney’s time records. Absent clear indication they are erroneous, verified
time records are entitled to credence. Horsford v. Board of Trustees of Calif. State Univ. (2005)
132 Cal.App.4th 359, 395-397.
Plaintiffs seek a total of $149,773.50 in attorney’s fees associated with 269.3 hours of work
performed by four attorneys and one unknown individual. Plaintiffs have submitted detailed time
records to support their request. Defendant challenges numerous specific entries. (Opposition pp.
8 – 11.) The Court has reviewed the billing records in detail, as well as Defendant’s objections.
Counsel billed a total of 269.3 hours to this litigation, which commenced August 4, 2022. The
parties engaged in extensive law and motion practice over 22 months of litigation. The matter
settled on the eve of trial for the maximum possible recovery under the law. The Court finds the
time spent was reasonably expended, with the following exceptions: 1) time billed by Erika
Kavicky – no information regarding this attorney’s qualifications and experience has been
provided, a total of 0.6 hours will be stricken for Ms. Kavicky’s time, and 2) time billed by Angela
Mason – no information regarding this individual’s position, qualifications or experience has been
provided, a total of 1.7 hours will be stricken for Ms. Mason’s time. The billing records Plaintiffs
provided show the following hours were reasonably expended: 133.9 by Deborah Horowitz, 115.4
by Joseph Kaufman and Associates, and 18.4 for the Kaufman and Kavicky firm. The total hours
reasonably expended on this matter are therefore 267.7.
Reasonableness of Rates: A reasonable hourly rate is determined by the prevailing rate charged
to attorneys of similar skill and experience in the relevant community. See PLCM Group, Inc. v.
Drexler (2000) 22 Cal.4th 1084, 1095. However, the court may also consider the attorney’s skill
and expertise, the nature of the work performed, the relevant area of expertise and the attorney’s
customary billing rates. Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 632.
A plaintiff seeking to recover hourly rates for out-of-town counsel that are higher than the local
rates must show (1) a good faith effort to find local counsel, and (2) demonstrate that hiring local
counsel was impracticable. Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1243.
The Court is the best judge of the value of professional services provided and may use its discretion
to apply rates in line with the market rates for the services provided. Ketchum v. Moses (2001) 24
Cal.4th 1122, 1132. This Court has extensive experience in presiding over Song Beverly actions
including motions for attorney’s fees, costs and expenses under Song Beverly. As such this Court
is aware of the reasonable hourly rates charged in actions of this nature. It is also aware of the
prior hourly rates found to be reasonable. Based on the Court’s extensive knowledge and
experience, it finds that reasonable hourly rates are $400 per hour for the partners, and $350 per
hour for the associate (Isaac Agyeman - 10 years of experience). The Court notes that Plaintiff
Anthony Edwards has submitted a Declaration indicating that he made a good faith effort to find
local counsel but was unable to do so. The Court has reviewed this voluminous case file, which
contains numerous discovery motions supported by attorney declarations regarding fees. It
appears that Plaintiff has not previously submitted a declaration regarding inability to find local
counsel in support of hourly rates above reasonable local rates. The Court has previously,
consistently, found a rate of $400 per hour a reasonable rate for partners in this matter. In the
interest of consistency within this case, and fairness to Defendants who have previously been
ordered to pay sanctions at the rate of $400 per hour, the Court will again find that $400 per hour
is a reasonable rate for partners in this matter. The Court finds that $350 per hour is a reasonable
rate for the associate in this matter. The Court notes that the billing records submitted do not break
out total hours billed by each individual partner and associate. Considering the large number of
billing entries, it is impractical for the Court to recalculate the correct billing at the approved rates.
Plaintiffs are ordered to submit recalculated totals using the Court’s approved rates.
Multiplier: Plaintiffs seek a 2.0 multiplier based on the results obtained and the contingent risks.
Adjustment factors that may be considered in awarding a multiplier include: 1) the novelty and
difficulty of the questions involved, 2) the skill displayed in presenting them, 3) the extent to which
the litigation precluded other employment, 4) the contingent nature of the fee award. Komarova
v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 348. Plaintiff has not
demonstrated a multiplier is warranted in this case. The issues involved in this litigation were
neither novel nor difficult. Counsel have demonstrated they are specialists, who are experienced
and skilled in this area of law, but this case involved routine issues under Song-Beverly. This
litigation precluded other employment to the extent any litigation would. The matter was taken on
a contingent fee basis as is all Song-Beverly litigation. The Court acknowledges Plaintiffs’
Counsel obtained the maximum award for the client. However, simply obtaining a positive result
in a factually and legally standard Song-Beverly case does not warrant a multiplier.
Costs and Expenses: The Song-Beverly Act provides that the court will award a successful
plaintiff a sum equal to the aggregate amount of costs and expenses, which have been determined
to have been reasonably incurred. Civil Code § 1794(d). Plaintiffs have requested an award of
costs and expenses in the amount of $19,917.80. However, the declarations submitted in support
of the moving papers only include itemized costs for a total of $16,247.81. The discrepancy is
addressed only in the Reply materials. (Plaintiffs submitted a Supplemental Declaration of Isaac
Agyeman which attaches a record of costs of $3,730 as Exhibit 6.) GM did not have the
opportunity to review and oppose those costs, as they were raised for the first time in the Reply
brief. Therefore, they will not be awarded. The remaining amount of $16,247.81 appears
reasonably incurred with the following exceptions, which will be stricken: 1) $602.26 for
Plaintiff’s mistakenly filing the Complaint twice, 2) $304.99 for Plaintiff’s “Re-Filing” Motion for
Leave to Amend, as it is a duplicate entry without explanation, 3) $180.16 and $592.73 for
Plaintiff’s Notice of Association of Counsel and Substitution of Attorney, respectively, as they are
business expenses of Counsel, not proper litigation expenses.
As for costs related to Taylor Motors, the Court notes the parties’ settlement agreement is between
and among David Edwards and Stephanie Edwards (“Plaintiffs”) and General Motors LLC and
Taylor Motors, Inc (“Defendants”). The agreement provides “Defendants shall pay Plaintiffs
attorney’s fees, costs, and expenses in an amount determined by the Court, by way of a single
noticed motion…” (Decl. Kaufman Ex. 1.) The Court finds the parties’ agreement contemplates
that Plaintiffs’ costs related to Taylor Motors would be included in the instant motion for fees and
costs. The total costs and expenses reasonably incurred are $14,567.67.
The Motion for Fees and Costs is GRANTED in part, as detailed above. Plaintiff is ordered to
prepare a proposed order consistent with the Court’s ruling. Plaintiff is also ordered to file and
serve a declaration which includes the recalculated totals for attorney fees using the Court-
approved rates detailed above. This matter is set for Monday August 12, 2024, at 8:30 a.m. in
Department 64 for review regarding the supplemental declaration and proposed order. If a
satisfactory supplemental declaration and proposed order are submitted at least five court days
prior to the continued date, the hearing may be vacated.
P.J. MCAULIFFE FAMILY PARTNERSHIP, L.P. VS. THE
TESTATE OR INTESTATE SUCCESSORS OF NORA
Ruling
BILLY SNOW VS DLK CONTRACTING, INC., ET AL.
Jul 09, 2024 |
6/18/2022 |
23SMCV00120
Case Number:
23SMCV00120
Hearing Date:
July 9, 2024
Dept:
I Code of Civil Procedure requires that a party suing a licensed architect for malpractice must obtain a certificate of merit (with certain exceptions not relevant here) before bringing suit.
The moving party, Fenske, contends that cross-complainant does not have such a certificate and brought a motion to dismiss on that basis.
Cross-complainant has filed no opposition, presumably because there is no such certificate.
Accordingly, the motion is GRANTED.
The cross-complaint against Fenske is DISMISSED.
Fenske to recover his costs.
Because Fenske is no longer a party, any motion involving him is MOOT and the stay, having served its purpose, is lifted.
Fenske is to prepare the written order of dismissal and lodge it with the court within 20 days.
Ruling
Miguel Aguilar vs General Motors, LLC.
Jul 10, 2024 |
23CV-03969
23CV-03969 Michael Aguilar v. General Motors, LLC
Demurrer by General Motors, LLC to Plaintiff’s First Amended Complaint’s Fifth Cause of Action
for Fraudulent Inducement (Concealment) because (1) It is barred by the statute of limitations,
(2) Fails to state facts sufficient to establish a cause of action, and (3) Fails to allege a
transactional relationship giving rise to a duty to disclose.
The Demurrer by General Motors, LLC to Plaintiff’s First Amended Complaint’s Fifth
Cause of Action for Fraudulent Inducement (Concealment) because (1) It is barred by the
statute of limitations, (2) Fails to state facts sufficient to establish a cause of action, and
(3) Fails to allege a transactional relationship giving rise to a duty to disclose is
SUSTAINED ON ALL GROUNDS WITH LEAVE TO AMEND to provide Plaintiff with an
opportunity to (1) Plead around the statute of limitations, (2) Plead fraudulent inducement
with specificity, and (3) Establish a relationship giving rise to a duty to disclose. The
Second Amended Complaint will be filed by November 29, 2024, to give Plaintiff sufficient
time to conduct discovery to obtain the facts necessary for Plaintiff to amend.
Motion by Defendant General Motors, LLC too Strike Punitive Damages Claim
The Motion by Defendant General Motors, LLC too Strike Punitive Damages Claim is
SUSTAINED WITH LEAVE TO AMEND to state a cause of action that supports a claim for
punitive damages and to allege the facts necessary to establish a punitive damages
claim. The Second Amended Complaint will be filed by November 29, 2024, to give
Plaintiff sufficient time to conduct discovery to obtain the facts necessary for Plaintiff to
amend.
Ruling
PHILLIP PHARELL MCGOWAN, ET AL. VS FAME GARDENS, LP
Jul 15, 2024 |
23STCV24498
Case Number:
23STCV24498
Hearing Date:
July 15, 2024
Dept:
20
Tentative Ruling
Judge Kevin C. Brazile
Department 20
Hearing Date:
July 15, 2024
Case Name:
McGowan, et al. v. Fame Gardens LP
Case No.:
23STCV24498
Matter:
OSC re: Default Judgment
Ruling:
The Default Judgment Application is denied without prejudice.
Plaintiffs to give notice.
This is a habitability matter. Plaintiffs
Phillip Pharell Mcgowan, Devon Monique Martinez, Joseph Manuel Eddins, and Cereniti Claire Martinez Mcgowan
seek a default judgment against Defendant Fame Gardens LP.
While Plaintiffs request $540,000 in damages, the Complaint fails to make any
specific
request for damages against Defendant.
This is problematic as [t]he relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint . . . . (Code Civ. Proc. § 580.) Further, phrases such as in an amount not less than do not give notice for the purposes of Code Civ. Proc. § 580. (
Electronic Funds Solutions, LLC v. Murphy
(2005) 134 Cal.App.4
th
1161, 1173-1174.) Code Civ. Proc. § 580 applies even when a defendant has defaulted after having filed an answer and having participated in discovery. (See
Greenup v. Rodman
(1986) 42 Cal.3d 822, 828;
Elec. Funds Sols., LLC v. Murphy
(2005) 134 Cal.App.4th 1161, 1175.) That a statement of damages was served is irrelevant as this is not a personal injury or wrongful death action.
Thus, Plaintiffs can either accept the jurisdictional minimum of $25,001
in damages or else amend the Complaints allegations as to damages, which would be a material change opening Defendants default. (
Cole v. Roebling Const. Co.
(1909) 156 Cal. 443;
Leo v. Dunlap
(1968) 260 Cal.App.2d 24, 27-28.)
Accordingly
, the Default Judgment Application is denied without prejudice.
Plaintiffs to give notice.
Preview
INDEX NO. 150373/2014 FILED: NEW YORK COUNTY CLERK 0371372014 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 03/17/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK wenn tence nnn nn nnn nnn ene nn nee eK MATEO EXPRESS, INC., Index No.: 150373/14 Plaintiff, -against- NOTICE OF MOTION JOHN PAUL MULTISERVICES, INC. and FE M. LAVANDIER, Defendants. mete nn nnn ene ene ene n ene nen en en ne nnene PLEASE TAKE NOTICE that upon the affidavit of Andrew R. Peck, Esq., sworn to on the 14" day of March 2014 and attached hereto as Exhibit 1, and upon the summons and verified complaint heretofore served herein, with proof of service thereof, plaintiff Mateo Express, Inc. (“Mateo”) will move this court (in room 130) pursuant to N.Y. C.P.L.R. 3215(a) at the courthouse, located at 60 Centre Street, New York, County of New York, State of New York, on the 7” day of April 2014 at 9:30 o’clock in the forenoon of that day, or as soon thereafter as counsel can be heard, for an order directing the entry of judgment in favor of the Plaintiff and against the defendants John Paul Multiservices, Inc. (“JPM”) and Fe M. Lavandier (“Lavandier’’) for the relief demanded in the verified complaint, upon the ground that the defendants JPM and Lavandier have failed to appear or otherwise respond to the verified complaint, and for such other and further relief as may be just, proper, and equitable. The above-entitled action is for a breach of contract, breach of a guarantee, conversion and punitive damages. Pursuant to N.Y. C.P.L.R. 2214(b), answering affidavits, if any, are required to be served upon the undersigned at least seven days before the return date of this motion. Dated: March 13, 2014 MERLE, BROWN & NAKAMURA, P.C New York, New York By pdbierle Andrew Peck Stephen Nakamura Attorneys for Plaintiff 90 Broad Street, Suite 2201 New York, New York 10004 Tel. (212) 471-2990 Fax (212) 471-2997 E-mail: a.peck@mbnpc.com To: John Paul Multiservices, Inc. 1180 Stratford Ave. Bronx, NY 10472 Fe M. Lavandier 110 Seaman Ave., Apt. 6H New York, NY 10034 EXHIBIT 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK mone nee ee ene en ee ne ee en MATEO EXPRESS, INC., Index No.: 150373/14 Plaintiff, -against- AFFIRMATION AS TO DEFAULT JOHN PAUL MULTISERVICES, INC. and FE M. LAVANDIER, Defendants. meee eee eee een eee nen en nen en ene ncnee, ANDREW R. PECK, ESQ., an attorney duly admitted to practice law in the courts of the State of New York does hereby affirm that the following is true under penalties of perjury: 1. I am an associate of the law firm Merle, Brown & Nakamura, P.C., the attorney for the plaintiff in the above-captioned action, Mateo Express, Inc. 2. The above-entitled action was commenced by the personal service of a summons and verified complaint, a copy of which is annexed hereto as Exhibit A, upon the defendant Fe M. Lavandier on the 16th day of January 2014. On the 16" day of January 2014, the defendant John Paul Multiservices, Inc. was served with the summons and verified complaint pursuant to Section 306(b) of the Business Corporation Law. Affidavits of service on the defendants Fe M. Lavandier and John Paul Multiservices, Inc. are attached hereto as Exhibit B. 3. The time for the defendants to answer or move with respect to the verified complaint has expired, and the defendants have not answered or moved with respect to the verified complaint. 4. The defendants’ time to plead has not been extended, and they are now in default in pleading. 5. The notices required by N.Y. C.P.L.R. 3215(g) were duly mailed on the 30" day of January 2014. A copy of the affidavits of mailing on the defendants Fe M. Lavandier and John Paul Multiservices, Inc., with proof of mailing, are attached hereto as Exhibit C. 6. Attached hereto as Exhibit D is an Affidavit of Non-Military Service for the Defendant Fe M. Lavandier. 7. As set forth in the Verified Complaint, plaintiff Mateo Express, Inc. (“Mateo”) is in the business of transmitting money abroad and is licensed to do so by the New York State Banking Department. The New York State Banking Law authorizes licensed money transmitters, such as Mateo, to appoint an agent or series of agents to accept cash funds from the public for further transmission overseas. On or around December 13, 2009, Mateo and defendant John Paul Multiservices, Inc. (“JPM”) entered into an agency agreement, pursuant to which Mateo appointed JPM as its agent (the “Agency Agreement”). Contemporaneously therewith, defendant Fe M. Lavandier (“Lavandier”), the owner of JPM, executed a personal guaranty (the “Guaranty”). The Guaranty provided that in the event JPM became indebted to Mateo, Lavandier would be personally liable for the debts of JPM. Further, the Guaranty authorized Mateo to proceed directly against Lavandier in the event of JPM’s indebtedness to Mateo, without having to attempt to collect from JPM first. When an individual desires to send money abroad via Mateo’s money transmission services, the customer visits an agent location, such as JPM’s storefront. The customer entrusts the funds to the agent and provides the agent with written payment instructions and details regarding the sender and the overseas beneficiary. The agent then notifies Mateo of the details of the transaction via Mateo’s computer software, provided by Mateo to the agent at the time of entering into an agency agreement, which is communicated to Mateo in real-time. Mateo then notifies its foreign correspondent, as designated by Mateo, in the country to which the funds are to be transmitted. The foreign correspondent then begins delivering the funds to the ultimate beneficiary. At that point, Mateo becomes indebted to the foreign correspondent. Stateside, Mateo then collects the funds from the agent, less the agent’s commission, and deposits the funds into Mateo’s account. Mateo then pays the foreign correspondent and retains a portion of the funds as Mateo’s commission for the transaction. The Agency Agreement requires JPM, as an agent of Mateo, to deliver any such funds due and owing to Mateo as a result of any money transmission transactions by 12:00 noon on the day after the transmission(s) occurred. Mateo and JPM had a successful agency relationship until December, 2013, at which time JPM had accumulated a significant unpaid balance due and owing to Mateo. On or around December 30, 2013, JPM owed Mateo $54,044.57. On December 30, 2013, Lavandier advised a Mateo employee that the funds would be available for pick-up the following day, pursuant to the terms of the Agency Agreement. However, on December 31, 2013, Lavandier stated to the same Mateo employee that due to the large amount of the funds, Lavandier had taken the funds to her home for safekeeping and that she would personally deposit the funds at another Mateo agency location the following day. Lavandier failed to deliver the funds as promised. On January 3, 2014, Lavandier admitted to Mr. Frank Ortiz (“Ortiz”), Mateo’s Director of Credit and Collections, that she had taken the funds to her home for her own personal use. Lavandier further admitted that she took the funds to pay off her personal creditors and that this had been her plan. Thus, there is a verified amount due and owing of $54,044.57, plus pre- and post- judgment interest. In addition, Mateo is seeking punitive damages as a result of Lavandier’s malicious actions and admitted theft. 8. Plaintiffs form order is attached hereto as Exhibit E. WHEREFORE, given the foregoing and for the reasons and facts set forth in the Verified Complaint, plaintiff Mateo Express, Inc. respectfully requests: 1 On Plaintiff's First Cause of Action, that the Court enter judgment on the issue of liability in favor of Mateo Express, Inc. and against the defendant John Paul Multiservices, Inc. for breach of contract; Il On Plaintiff's Second Cause of Action, that the Court enter judgment on the issue of liability in favor of Mateo Express, Inc. and against the defendant Fe M. Lavandier for breach of a guaranty; iii. On Plaintiff's First and Second Causes of Action, that the Court award damages in favor of Mateo Express, Inc. and against the defendants John Paul Multiservices, Inc. and Fe M. Lavandier, jointly and severally, in the amount of $54,044.57, together with statutory pre- and post-judgment interest, and costs of collection; Iv. On Plaintiff's Third Cause of Action, that the Court enter judgment on the issue of liability in favor of Mateo Express, Inc. and against the defendant Fe M. Lavandier and that the Court schedule an inquest to assess punitive damages to be awarded to Mateo Express, Inc. as a result of Fe M. Lavandier’s admitted pre-meditated conversion; and Vv. Such other and further relief as the Court may deem just, proper and equitable under the circumstances. Dated: March 13, 2014 MERLE, BROWN & NAKAMURA, P.C. New York, New York By: Ade» L- Andrew Peck Stephen Nakamura Attorneys for Plaintiff 90 Broad Street, Suite 2201 New York, New York 10004 Tel. (212) 471-2990 Fax (212) 471-2997 E-mail: a.peck@mbnpc.com To: John Paul Multiservices, Inc. 1180 Stratford Ave. Bronx, NY 10472 Fe M. Lavandier 110 Seaman Ave., Apt. 6H New York, NY 10034 EXHIBIT A SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK weeneeenecenceceneneeeeeeeeenmeeeeeeeneeeneneen enenennneenenenn xX MATEO EXPRESS INC., Index No.: Plaintiff, -against- SUMMONS JOHN PAUL MULTISERVICES, INC. and FE M. LAVANDIER, Defendants. wee nee ne eee en ene enneme nn nnnt nanan) X TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED and required to serve upon Plaintiff's attommey an answer to the complaint in this action within twenty (20) days after the service of this summons, exclusive of the day of service, or within thirty (30) days after service is complete if this summons is not personally delivered to you within the State of New York. In case of your failure to answer, judgment will be taken against you by default for the relief demanded in the complaint. The basis of venue designated by plaintiff is the residence of plaintiff. The address of plaintiffis 350 West 31" Street, New York, New York 10001. Dated: January 15, 2014 New York, New York . Pe & NAKAMURA, P.C. Stephen Nakamura Andrew Peck Merle, Brown & Nakamura, P.C. Attorneys for Plaintiff 90 Broad Street, Suite 2201 New York, New York 10004 Tel. (212) 471-2990 Fax (212) 471-2997 E-mail: s.nakamura@mbnpec.com To: John Paul Multiservices 1180 Stratford Ave. Bronx, NY 10472 Fe M. Lavandier 110 Seaman Ave., Apt. 6H New York, NY 10034 SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF NEW YORK re see se eneneteeeeeneenennon onesie anne enone X MATEO EXPRESS, INC., Index No.: Plaintiff, ~against- VERIFIED COMPLAINT JOHN PAUL MULTISERVICES, INC. and FE M. LAVANDIER, mec eert renee nnn a renee nneenenemenaein ge neennrenne arses, Plaintiff Mateo Express, Inc., by its attomeys, Merle, Brown & Nakamura, P.C., by way of complaint against defendants John Paul Multiservices, Inc. and Fe M. Lavandier, alleges and says as follows: ONS C: NI 1 Mateo Express, Inc. (“Plaintiff’ or “Mateo”) is a corporation organized under the laws of the State of New York, with its principal place of business located at 350 West 31" Street, New York, New York 10001. 2 Mateo is engaged in the business of transmitting money abroad and is licensed to do so by the New York State Banking Department. 3. Upon information and belief, defendant John Paul Multiservices, Inc. (“JPM”) is a New York corporation with its principal place of business located at 1180 Stratford Avenue, Bronx, New York 10472, 4 Upon information and belief, JPM is owned by defendant Fe M. Lavandier (‘Lavandier”), who upon information and belief is an individual who resides at 110 Seaman Avenue, Apt. 6H, New York, New York 10034. 5 As set forth in paragraph two (2) above, Plaintiff Mateo is engaged in the business of transmitting money abroad and is licensed to do so by the New York State Banking Department, pursuant to Article XIII of the New York State Banking Law (“Article XIII”). 6. Article XIII authorizes Mateo, as a licensed transmitter of money, to appoint agents within the State of New York to accept cash funds from the public for further transmission to beneficiaries overseas. 7. The transmission of funds abroad by Mateo, through its agents, proceeds as follows: &. Customers desiring to transmit funds abroad visit agent locations, entrust funds to Mateo’s agents, and provide the agents with written payment instructions and detailed information concerming both the sender and beneficiary af the funds; b Upon receiving the funds from customers, the agents then notify Mateo of the details of each transaction; c. Upon receiving this information from the agents, end in order to effectuate the payment of funds to beneficiuries overseas, Mateo then delivers the payment instructions to foreign correspondents which Mateo has appointed in each of the countries to which Matco’s customers send funds; 4. The foreign sorrespondeni immediately begin delivering funds to beneficiaries as directed by customers, and Mateo is thereupon immediately indebted to the foreign correspondents for each delivery made; a Mateo collects the funds entrusted to the agents by the customers, less the agents’ commissions, and deposits such funds into Mateo’s bank account; f. Mateo pays the foreign correspondent for all deliveries made plus a commission or fee owed to the correspondent for each delivery made; and &. Matec retains a portion of the fee paid by the customer for each tansmnission as Mateos fee for completing the transmission as requested. 8 On or around December 13, 2009, Mateo and JPM entered into a Mateo Express Agency Agreement (the “Agreement”) with respectto JPM’s business located at 1180 Stratford Avenue, Bronx, New York 10472, pursuant to which JPM was appointed as Mareo’s agent for the purpose of receiving funds from the public for further transmission abroad by Mateo. A copy of the Agreement is attached hereto as ExhibitA. 9 In addition, also on December 13, 2009, defendant Lavandier executed a Personal Indemnity and Guaranty (the Guaranty”), pursuantto which Lavandier personally agreed to: “[TJhe prompt payment in full by AGENT [JPM] (as defined in the Agreement) of all sums and amounts payable under such Agreement and the prompt and complete performance by AGENT of all other obligations thereunder.” and further agreed that “[Wlithout PRINCIPAL [Mateo] fitst having to proceed against AGENT, to pay on demand all sums due to become due to PRINCIPAL under this Agreement and all damages, losses, costs, attorney’s fees and expenses which PRINCIPAL may suffer by reason of AGENT"s or any of [my] failure[] to pay or perform any obligation under the Agreement. This guatanty is an absolute, unconditional and continuing guaranty of Payment.” A copy of the Guaranty is attached hereto as Exhibit B. 10. Upon entering into the Agreement, JPM and Lavandier, by virtue of her Guaranty, agreed to “accept and hold all monies collected for transmission in trust and as fiduciary for” Mateo, See Agreement (Exhibit A) at IV(A). 11, JPM and Lavandier further agreed to pay Mateo the total amount of funds received by each agent location for transmission abroad, plus all commission due to Mateo, by 12:00 noon the day following the defendants’ receipt of funds for transmission. See Agreement (ExhibitA) at{ IV(D). 12. As an agent of Mateo, JPM collected, on behalf of Mateo, funds from the public for further transmission to beneficiaries overseas plus fees paid by each customer thereon without incident. However, as of December 30, 2013, JPM had a significant unpaid balance owed to Mateo, 13. Despite the fact that the intended beneficiaries were paid, and despite the fact that Mateo paid its foreign correspondents, the defendants had failed to deliver funds to Mateo as Tequired by the Agreement. 14, Anytime that Mateo executes an agency agreement with a new agent, Mateo equips that new agent with Mateo’s computer software (the “Mateo Software”). The Mateo Software is a computer program that is downloaded and installed on the computers located at each agency’s premises. 15. When a Mateo customer desires to transmit money, the agent enters the following information into the Mateo Software program: i) the amount received by the agent from the customer; if) the agent’s respective commission; and iii) the remaining amount that is to be delivered to Mateo. When entered, this information becomes immediately available to Mateo on Mateo’s computers at its headquarters, 16. Thus, every transaction that occurs on a given day is transmitted to Mateo’s intemal accounting system via the Mateo Software program. 17, Therefore, the information entered into Mateo’s Software program, which appears on Mateo’s computer systems and internal accounting system, is based entirely on information entered by the agent. 18. JPM, like all of Mateo’s other agents, had the Mateo Software installed on IPM’s computers, 19. Attached hereto as ExhibitC is a print out from Mateo’s internal accounting system which demonstrates that as of December 31, 2013, JPM (based on the information entered into the Mateo Software by JPM) owed Mateo $54,044.57. 20. On or around December 30, 2013, Lavandier advised Mr. Jorge Jimenez (‘Simenez"), an employee of Mateo , that the past-due funds would be promptly made available for pick up by Mateo. 21. On December 31, 2013, Lavandier indicated that due to the large amount of the funds, she had taken these funds to her home. Lavandier then stated to Mr. Jimenez and another Mateo employee (in two separate phone conversations) that she was going to deposit the funds (totaling $54,044.57) at a Mateo agency located at 170 Dyckman Street in Manhattan, Lavandier failed to deliver the funds to Mateo as promised. 22 As such, JPM is indebted to Mateo in the total amount of $54,044.57, representing the funds that JPM collected from the public and was required to deliver to Mateo. 23, On Jennary 3, 2014, Lavandier admitted to Mr. Frank Ortiz (“Ortiz”), Plaintiff's Director of Credit and Collections, that she personally took the arnounts due and owing to Mateo, totaling $54,044.57, for her own benefit for the purpose of paying other creditors and that this had been her plan. 24, Despite due demand, JPM and Lavandier have failed and refused to make the required payment to Mateo. The amount presently due and owing to Mateo by JPM and Lavandier totals $54,044.57. (Fo ent) 23. Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1 through 24 as though set forth fully and at length herein. 26. JPM?’s failure to remit funds to Mateo as required by the Agreement constitutes a breach of the Agreement. 27. As a result of JPM’s breach of the Agreement, Mateo has been damaged in the amount of $54,044.57, plus statutory pre- and post-judgment interest. (or Layandier’s Breach of the Guaranty) 28. Plaintiff repeats and realleges each and every allegation set forth in paragraphs | through 27 as though set forth fully and at length herein. 29. JPM is indebted to Plaintiff in the amount of $54,044.57, together with statutory pre- and post-judgment interest. 30. Defendant Lavandier, by executing the Guaranty attached to the Agreement between JPM and Plaintiff, personally guaranteed all of JPM’s obligations under its Agreement with Plaintiff, and further agreed to be responsible for all sttorneys” fees incurred by Plaintiff as a result of JPM's failure to perform its obligations under the Agreement, See Guaranty (Exhibit B) 31. By virtue of the Defendant Lavandier’s unconditional guaranty, Lavandier owes Plaintiff the sum of $54,044.57, plus statutory pre- and post-judgment interest thereon, reasonable attorneys’ fees as provided for by the Guaranty, and costs of collection. UNT. 1 jf ’s Fu 32. Plaintiff repeats and realleges each and every allegation set forth in paragraphs | through 31 as though set forth fully and at length herein. 33. Defendant Lavandier admitted to Mr. Ortiz that: i) she had lied to Mr. Jiminez; and ii) that it had been her plan to take the $54,044.57 (the “Converted Funds”) and use it to pay off creditors. 34, As the lawful owner of the Converted Funds currently in the Defendant Lavandier’s possession, Plaintiff has an ownership and possessory right to the funds superior to all others. 35, As the lawful owner of the Converted Funds with a right of ownership and possession superior to ail others, Plaintiff had the authority to request delivery and possession of the Converted Funds from Lavandier. 36. Although JPM was preliminarily the lawful recipient of the Converted Funds, Lavandier never even became an authorized custodian of the Converted Funds. Moreover, she became an unauthorized custodian of the Converted Funds the day she took them to her home. 37, Lavandier’s exercise of dominion and control over the Converted Funds was to the exclusion and detriment of Plaintiff's rights of possession, control and ownership of the Converted Funds. 38. Accordingly, when Lavandier refused Plaintiffs awful demands for delivery of the Converted Funds, Lavandier became @ converter of the Converted Funds, funds that duly belong to Mateo. 39, The money that Lavandier took is money that JPM collected from the public for further transmission to beneficiaries overseas. 40. The efficacy, safety and security of money transmission services are an extremely important aspect of the non-banking financial institution system in New York. 41. To this end, the fact that Lavandier converted money for her own personal benefit disrupts the integrity of the New York non-bank financial institution system. 42, Further, Lavandier’s conduct, which was admittedly premeditated, mandates not only that she be liable for $54,044.57 for the conversion of Mateo’s funds, but that the Court make an example of Lavandier’s egregious misconduct by awarding punitive damages to Mateo in the amount of $500,000.00. WHEREFORE, plaintiff Mateo Express, Inc. demands judgment in its favor and against the defendants as follows: L On Plaintiff's First Cause of Action, judgment in favor of Mateo Express, Inc. and against John Paul Multiservices, Inc. in the amount of $54,044.57, together with pre- and post-judgment interest, and costs of collection; i On Plaintif’s Second Cause of Action, judgment in favor of Mateo Express, Inc. and against Fe M. Lavandier in the amount of $54,044.57, together with pre- and post-judgment interest, attomeys’ fees as provided for by the Guaranty, and costs of collection; and iii. On Plaintiff's Third Cause of Action, judgment in favor of Mateo Express, Inc. and against Fe M. Lavandier in the amount of $54,044.57, together with pre- and post-judgment interest, and costs of collection; Iv. Punitive damages in the amount of $500,000.00 for the willful and premeditated conversion of Mateo’s funds; and Such other and further relief as the Court may deem just, proper and equitable under the circumstances. Dated: January 15, 2014 MERLE, BROWN & NAKAMURA, P.C. New York, New York By: V2 <— Stephen Nakamura Andrew Peck Attorneys for plaintiff 90 Broad Street, Suite 2201 New York, New York 10004 Tel. (212) 471-2990 Fax (212) 471-2997 E-mail: s.nakamura@mbnpe.com VERIFICATION STATE OF NEW YORK ? ) ss: COUNTY OF NEW YORK ) CARLOS RIVERA being duly sworn, deposes and says: I am the President of the Plaintiff, Mateo Express Inc. I have read the foregoing COMPLAINT, know the contents thereof, and the same arg true to my knowledge, exccpt those matters therein which are stated to be alleged on information and belief, and as to those matters I believe them to be true. I farther state that the source of my information and the grounds of my belief are derived from: i) my knowledge of Mateo Express, Inc. as President; ii) a review of Mateo Express, Inc.’s regularly-kept business records; and iii) interviews of and conversations with Mateo Express, Inc. employees. Cra CARLOS RIVERA President Mateo Express, Inc. to before me this of January, 2014 so eK Notary ate tate oF ew Yor: tary Public ua oa iythugs Soeinty Center 1% i stity ion Saas C6 12514 19 ICATIO! STATE OF NEW YORK ) ) 88: COUNTY OF NEW YORK ) FRANK GRTIZ being duly sworn, deposes and says: Tain the Director of Credit and Collections of the Plaintiff, Mateo Express Inc. I have read the annexed COMPLAINT, know the contents thereof, and with respect to paragraphs twenty-three (23) and thirty-three (33) of the COMPLAINT, the same are true to my knowledge. With respect to those matters therein which are stated to be alleged on information and belief, as to those matters I believe them to be true, , Credit and Collections Mateo Express, Inc. Sworn to before me this ‘day of January, 2014 Public Notary Put StaiteOf New York CINDSIaag5 Qualltieg in Cour Gettiied onin Ea New rk Cow nmi ission res OB Baela. il EXHIBIT A haminss fram any cis, tassee, darnapas, Cables or expen dutt or arin ou $f ny Ines, miaune, thant, bingiery, forge ney or thar crit, Ses Seve rosie oe ib exact en thereto and: il Mateo foe any Bue seme AGENT shall dally batls with @ schedule ref Shona of even rancedscon maney tad ak day end ae papas io be atc PRINCIPAL, The ddly Wantucilen report must Uululla ef wach, that day and el) payment to be efecna by 4, ‘Nome af reminer, 2 ‘Name, cadeess and talaphome number af neneticlary; a Beneleiary pi information (eg, Baik @roount or ninar payment institu 4 Pave Yelus of exch Uarater, 9nd AGENCY AGREEMENT 5 The commission dun to PRINCIPALS pecvided in the fea Tit agreed Dy and batwaen few York et ANGE race 359 Wen ot guee, 3° ha Bon New York und the undtelgned AGENT, and Te aubject tb tha approval of ‘The stove Information shpl| be trenemitted by’ tax of Sompul te PRINCIPAL by 5:00) _ ‘of tha Busines day In whilch the money way Col) ine fi a unease Ie daly Weaguction wept to PRINCIPAL sh be Incaded in theretanyo pe APPOINTMENT Q bebe prvi patraHECay.noonthe dy fallowing a cecalp of Iwas for Wansminon, AGENT at pe fon duesack | eee ot seas me te siepostig te wal:‘snot a 2h consideration of tha payenent of fees vet furth tn this Agreed, PRINGIPS no by (adel tune hereby sppolnis AGENT a¢ He AGENT for the transmistlon of mony a3 set toth herein PRINSIPAL ‘ea sat forh on. seyanslaresby wre and AGENT ancepts such opp PRINCIPAL'S wccount must be avaiable a¢ goad fundsIn PRINCIPAL'S atcount am By ‘AGENT Sal enn pert 45 certian ovate neaiah PRUCIEAL of transter10 paymem Bt used [n perevaph D, The loiet deposit whet! 7» ndertace and agree thal tis Agrmemaal is baie eceied ‘aya Bo tnt UB Daly ant raponted to PRINCIPAL on(it daly waaaction eepon for ‘ito wane te PRINCIPALS review and approval Roprensoe. a én pategeaph C above. condition, PRINCIPAL wil nally AGENT waa 80 days e ears nancial‘meal ie AGENT sai PRINCIPAL, un 9(pantiy tosis, ba a master schedite ‘unsecaptetie,‘and this Agreemardwal hersupon term arolng ab raneactons canduejed thal raanth which api shal be setverad 1 DB) AGENT pertonns.ihe services haaunder ta the cate Of News York than Senadota M coieh a, TC ibn 8 anh hh a A and B shall apply. given, in ation, a canned of wach frarigpationsnd e) tm péforming heteunder, AGENT shed abide by the tems und condilonsef he ‘yaceres ¢reaplen Wet Pana to ‘upen. IPAL's Requent, ate nates F)__ PRINCIPAL haa developed ong Samponer sorry fs, srxpare Ices dequlalicnsof he INGIFAL, al as amended from time fo wma, nd dally end monthly eeporis, ioanipnnd AGENT so ec prone! wth F} AGENT chou, a1 {16 own cast and extnae, ds ante PRINCIPAL sohware0 opesa{é sume: PRINCIPAL, (om office prendaes farm ntl fo sacl As Gusines. to tha hese. AGENT wil perform Ke dues oe AGENT vane fete fer mulmiatningtis pal shall sh meebe ae “ REPORTS AND RECORDS CONFIDENTIAL INFORMATION, dng aisuh edetona tora at ag be rey arene aon Wy Pane Tri, wen 19 fe be ase to us ba caspanabe fr pamper a eg yareckctica | age undaretards that one ofthe funéamenial chectven «Dis of Agrasment aiand Shetermcrmenal physical rumants tn @XCEoe of PRINCIPAL'S 10fa) Tan suse wed GORD Dette ($10 20000. Ra gapects shall Se Wansidaslan sendcur in te Dis located tra ater eno aL the tow of he Varsuction acd fited wehin tm time per ‘required by appiicabla ber, develop PRINICIPAL'S‘ecapelon | levthe Inde sede shall meivlain at 3 premdaae’ Copies of Sf (RS forms 4763 and 4790 | of fe an wail fuinlsh PRINCIPAL With cophus Of al auch reports prepared and feed a EXCLUSIVITY tha dy following venvaction, ea ae apa ogo ek ey he fat ta aceest any end gia anoeter ol ony, ix vm } mas monies cnoalved and 1a Ie 2 PRINCIPAL. » sold, bie name al kash proper bod ana sone {ub Wnlorfnation relating tn ly yanemiasfon of maney, Wachedlng of reminers, the memes oF ‘and the terms of each Wacsmission, and altH ote Goats cand reconls ax appticabie haw seth Coonan or net, fe wre ai ‘of PRINGIPAL. hall Require or 99 reasonably shall be etiod batween the date allie Ageeden net Uf) year abertre nor \L. All records20 tera tent he ora peat a Can tra fous Aeatanlnd to the_don 30 meoe a regulation, pres OF the request of ‘ae sarminetion, the, Furnes 9fen mer, 2am at boskcenin ‘ayaiern manjatned by the sees that Tured drecy 8 int ec dteder, ffoat, tryees para, eRINGIPAL venture,be lary weer ‘ekhokier, propreicr,OF cp PANG sol are fccesn AGENT agirds ta debevnina eeenpllance: wily shen banal of tua, or wy ah eraor sigutiatlan ee en, eogage ta, ihe lamne. is Agaement and wah applcably toi and soquetons canoeing jot money, operation fon ent oy Tineees wierespec toSarinfoyer orale mowney Iranster ‘or moneyba ores whera ‘during the teamot ww RECEIPTS, INVOICES, SIGHS AND ADVERTISING iis Agreement, sian 10g mie Teer na esTe AGEN’ ‘AGENT wis Terie AGENT oF for ches, sole er shempt le he Tues or yavonabe ‘any other parton, il nen, rests, sonkmratinny, and ote such trates used in the ‘orgerization or other ently for the aurpooe of al products, buxiness of wervice i shal state se tha AGENT's nome "as AGENT for Maleo one exoaped PAL ov ¢elatingto I ‘businaes, AGENT ess es Al anarpission inyiryinents used by AGENTS PRINCIPAL’: remedies at 10 will nol be agpquate, aK vil beer anieAr The eoutof wa reels, PRINCIPAL Wate end fo specie calet. specific pertotnanca, Including epprepridte | eae AGENT willbe tiled 10 AGENT by’ ‘al PRINCIPAL'S cost, 5) Ais the intentionof the pases that AGENT be permed to use and conduct is ove rants a tha AGENT must ksdioate tat Iie an AGENT m1. COMPENSATION of the PRINGIPAL, ‘The PRINGIPAR chal si dees he warding of allslgns, tademorks ond suvice marks used and partelning to te ager and an te a) In conden is uppohtrett sx AGENT, AGENT ayrees to tm sevens anal 9 sign ss advert copy weed fn comection the servicus hereunciet bo unt ud without (he tele eppracal ang canara ofiba PRI ‘the commizslan and ‘28 cet forth Wa Ahn fe pagent ng event hed ‘eormenon ry oa or vche tty, Gall carmnlorons and it bee based ext the face valut of alt sume meee FRACIPAL vwtihaut the PRINCIPAL'S pie wrt otha reveled by AGENT: ron i evslonary fe weracdralon ugh vahie, reapeciis te deer.fens 23 used hérein, hall mur Cal ean gf be ance ot omy oe weg a2 tant re eovessing copy Peering reetne ta Be mance FavtmidbyPhnce At snc bt eet ‘The panies hava aah loca in ina Blac oye ray Sy charges ete toe | va RESPONGIBILITIES OF PRINCIPAL, ‘aye rotica le AGENT. My REMITTANCE OF FUNDS AND FEEG TO PRINCIPAL a. Wineut nla the PRINCIPAL’: segatanton neon far ainmanraouna ( ete of tha | yee ratannet oy Bact AGENT shai Tp bor eee af a nin, mn int on + cantar Gy eter Yarn a yi a9 ba af fqulies anit chnmuseatont and wantigallan concerning nd comps ft acy,‘of emtunery ond a Sent ae G}_ PRINCIPAL wit reculve f