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CUMMING & ASSOCIATES, APLC
William R. Cumming State Bar No. 200966
cumming@ cummingandassociateslaw.com
3080 Bristol Street, Sixth Floor, Suite 630
Costa Mesa, CA 92626
Telephone: (714) 432 6494
Facsimile: (714) 3162
LAW OFFICES OF NANCY M. BATTEL
Nancy M. Battel (State Bar No. 126548)
nancy@ battelaw.com
1101 Westwood Drive, Suite B
San Jose, CA 95125
Telephone: 408 2946
Facsimile: 408
Attomeys for Defendants Worldwide Ground Transportation Solutions, Inc. and James Brown
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
PHILIP RESTIVO, Case No. 17CV 308469
Plaintiff, Judge Mary E. Arand
Department 09
REPLY TO OPPOSITION TO MOTION
WORLDWIDE GROUND FOR ATTORNEYS’ FEES
TRANSPORTATION SOLUTIONS, INC.;
JAMES BROWN, an individual; and DOES 1 Action Filed: April 12, 2017
ough 5, inclusive, Trial Date: March 11, 2019
Defendant
REPLY TO OPPOSITION TO MOTION FOR ATTORNEYS’ FEES
James Brown (“Brown”) submits the following reply to Philip Restivo’s (“Restivo”)
opposition to Brown’s motion for attomey fees.
After reviewing all the evidence in support of and in opposition to the motion for summary
judgment as to whether Brown was a party to the Mediated Settlement A greement, Judge Arand
stated in the order (1) there “was no basis” for concluding Brown signed the Mediated Settlement
Agreement in his individual capacity, (2) Restivo failed to present any reasoned explanation for his
position, and (3) his rather his theory rested entirely on conjecture and speculation. No doubt,
Judge Arand’s order was harsh and put Restivo against the ropes to justify why Brown was
considered a party to the Mediated Settlement A greement.
10 Restivo’s opposition does little to overcome the court’s finding that the lack of any
11 evidence supports the court granting the motion and awarding Brown attorney fees.
12 To properly respond to Restivo’s opposition, it will be helpful to step back in time and
13 evaluate the facts leading up to the court granting the motion for summary judgment dismissing
14 Brown from the case.
15 In 2014, Worldwide purchased the assets of Le Grande Affaire. After Worldwide paid for
16 the assets in full, Worldwide’s only remaining obligation was to provide Restivo with discount
17 limousine services, and Restivo in turn had an obligation to pay Worldwide for the services. The
18 specific agreement in Paragraph 4 of the Addendum to Offer & Agreement to Buy states:
19 “4, Discount Limousine Service: For the duration of the Covenant Not to
20 Compete, Phillip Restivo may use vehicles of the Buyer for a price equal to the cost
21 of the chauffeur and fuel subject to reasonable amount of use as agreed between
22 Buyer and Mr. Restivo, to service Mr. Restivo’s personal use, friends, trades and
23 family useage.”
24 After a period of time, a dispute arose between Worldwide and Restivo regarding discount
25 limousine services. So, Worldwide and Restivo decided to participate in mediation. There is no
26 dispute the terms in the Mediated Settlement A greement were the following and that Brown and
27 Restivo signed the Mediated Settlement A greement.
28
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REPLY TO OPPOSITION TO MOTION FOR ATTORNEYS’ FEES
“Vehicle trade use is good for any day or any time with the exception of Saturdays
when 8 passenger or smaller is okay but anything over 8 passenger must be booked
within 24 hours or less notification. 9
2 “The value of trade will be no more than $5,000 per month to include all classes of
usage. The $5,000 is accumulated and carried over monthly but disregarded every
four months, no more than $60,000 of value per year.”
These terms were supposed to be incorporated into the Offer and Buy Agreement
dated 5/8/14
9 The complaint filed on April 12, 2017, alleges both Brown and Worldwide were parties to
10 || the Mediated Settlement A greement and both breached the Mediated Settlement A greement.
11 Paragraph 7 of the complaint alleges:
12 “Under the terms of the mediated settlement agreement, James Brown, the
13 principal of Defendant, Worldwide Ground Transportation Solutions, Inc.,
14 agreed that Phil Restivo was to receive discount limousine services pursuant to the
15 aforementioned Addendum to Offer and A greement to Buy for a value of no more
16 than $5,000.00 per month, which $5,000.00 per month was to be accumulated and
17 carried over on a month to month basis. Thereafter, Plaintiff made repeated requests
18 for discount limousine services, all of which were declined by Defendants stating
19 either that they were too busy or that they did not have a driver. Defendants have
20 breached the aforementioned mediated settlement agreement by refusing and
21 failing to provide discount limousine services a promised under the original
22 addendum to Offer and Agreement to Buy and the mediated settlement
23 agreement.”
24 (Complaint, 7, Ex. 1.)
25 Alleging Brown was a party to the Mediated Settlement A greement and breached the
26 Mediated Settlement
A greement was a stretch. The reasons were because (1) Brown as an
27 individual had no obligation to provide discount limousine services; (2) Brown had no right to
28 receive money from Restivo for the discount limousine services provided; and (3) the Mediated
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REPLY TO OPPOSITION TO MOTION FOR ATTORNEYS’ FEES
Settlement A greement states the underline purchase documents with W orldwide were supposed to
incorporate the terms of the Mediated Settlement Agreement. Knowing these facts, and borrowing
from Judge Arand’s ruling granting the motion for summary judgment, there was no basis to
conclude Brown was a party to the Mediated Settlement A greement with obligations owed to
Restivo.
In response, Brown filed a demurrer to the complaint. One of the arguments raised in the
demurrer was Brown should be dismissed because he was not a party to the Mediated Settlement
Agreement.
In ruling on the demurrer, the court was required to assume the allegations were true and
10 that Brown was a party to the Mediated Settlement Agreement. Given this assumption, the court
11 concluded: “the demurrer would not dispose of the entire cause of action since Brown appears to
12 be a party to the Settlement Agreement.” (Order re Demurrer, p. 5:27-6:2, Ex. B Restivo’s Request
13 for Judicial Notice) (emphasis added.)
14 During oral argument on the demurrer, the court stated on the record that another motion,
15 suggesting a motion for summary judgment, could be filed later to address the issue of whether
16 Brown was a party to the Mediated Settlement A greement.
17 On November 26, 2017, Restivo responded with denials of requests for admissions when
18 asked to (1) admit James Brown, as an individual, was not a party to the mediated settlement
19 agreement; (2) admit James Brown signed the mediated settlement agreement as a representative
20 of Worldwide; and (3) admit Restivo improperly named James Brown as a party in the case by
21 claiming he was a party to the mediated settlement agreement.
22 The fact that Restivo denied Brown was not a party of the Mediated Settlement A greement
23 in response to a request for admission and later lost on this issue opens the door for an award of
24 attorney fees.
25 Section 2033.420 states the court “shall” order the payment of such fees and costs unless it
26 finds the reasons for the denial was one of the following: (1) that an objection to the request was
27 sustained or a response to the request was waived; (2) the admission sought was of no substantial
28 importance; (3) the party failing to make the admission had reasonable ground to believe that the
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REPLY TO OPPOSITION TO MOTION FOR ATTORNEYS’ FEES
would prevail on the matter; or (4) there was other good reason for the failure to admit the
request. (Code Civ. Proc., § 2033.420, subd. (b).)
Restivo relies exclusively on the defense of having “reasonable grounds” for believing that
Brown would be considered a party in his individual capacity to the Mediated Settlement
Agreement at trial. To avoid having to pay attorney fees and costs, Restivo must show that at the
time of denial (i.e., November 26, 2017), he held a reasonably entertained and (i.e., based on
admissible evidence) good faith belief that he would prevail on the issue at trial. (Laabs v. City
of Victorville (2008) 163 Cal.A pp.4th 1242,1276.) The admissible evidence Restivo references in
the opposition falls short of this standard.
10 First, Restivo did not prepare a declaration in support of the opposition explaining his good
11 faith belief that he would prevail on the issue at trial. Rather, Restivo’s attorney stepped into
12 Restivo’s shoes by stating: “Plaintiff had a good faith belief that he would prevail at trial given the
13 trial court's ruling on the demurrer and the words and signatures on the contract would prevail at
14 trial.” (Opp. 5:18-19.) The statute requires evidence of Restivo’s good faith belief and not what
15 his attorney believed. The fact that Restivo failed to provide a declaration to support his good faith
16 belief justifies granting the motion.
17 Second, Restivo’s reference to his declaration in support of the opposition to the motion for
18 summary judgment is irrelevant. The declaration states: “I had explained at the mediation thatI
19 wanted Mr. Brown to personally guarantee the settlement we made that day because I felt he and
20 the company had not lived up to the deal we had previously made.” (Opp. 3:13-15.) Restivo’s
21 subjective belief does not help him overcome the problems in front of him.
22 First, the question is not what Restivo reasonably believed whether Brown was a personal
23 guarantor of the Mediated Settlement Agreement, but rather whether he reasonably believed he
24 would prevail at trial on the issue of Brown being a party to the Mediated Settlement A greement.
25 (Grace v. Mansourian (2015) 240 Cal.A pp.4th 523, 530 [“In light of all of this evidence,
26 defendant's belief, however firmly held, was not reasonable. The question is not whether the
27 defendant reasonably believed he did not run the red light but whether he reasonably believed he
28 would prevail on that issue at trial.”]
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REPLY TO OPPOSITION TO MOTION FOR ATTORNEYS’ FEES
Second, the alleged conversation with the mediator was never alleged in the complaint, the
responses to the requests for admission, and was only between Restivo and the mediator. Thus, the
alleged conversation and Restivo’s belief is not relevant.
In conclusion, Brown is entitled to recover attomey’s fees based upon Restivo’s responses
to the request for admissions. Restivo simply failed to produce sufficient evidence to support
denying the motion.
Restivo contends the attorney fees being requested are excessive. The request for attorney
fees started after Restivo served his responses to the request for admissions and stopped after the
court issued the order granting the motion for summary judgment. So, the beginning and end dates
10 are correct. It is difficult to separate the billable time associated with the issue of whether James
11 Brown was a party to the Mediated Settlement A greement because the issues are so intertwined. A
12 reasonable discount of the attorney fees would seem to be 15% of the amount requested.
13 Brown argues in the motion that if Restivo is entitled to recover attomey fees based upon
14 the attorney’s fees provision in the Offer and A greement to Buy, the court should also award
15 Brown attomney’s fees as the prevailing party. The reason is that the complaint alleges both Brown
16 and Restivo were parties to the Mediated Settlement Agreement. If the Mediated Settlement
17 Agreement was breached and Restivo is entitled to recover attomey’s fees, Brown should also be
18 entitled to recover attorney’s fees because he had to prove he was not a party to the agreement and
19 did not breach the agreement. (Hsuv. Abbara (1995) 9 Cal.4th 863, 870-871.)
20 In conclusion, the court should grant the motion and award Brown attorney fees.
21
22 Dated: June 7, 2019 CUMMING & ASSOCIATES, APLC
23
24 By: /s/ William R. Cumming
William R. Cummins
25 Attomeys for Defendants
Worldwide Ground Transportation Solutions, Inc. and
26 James Brown
27
28
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REPLY TO OPPOSITION TO MOTION FOR ATTORNEYS’ FEES
EXHIBIT 1
SUMMUNS SUM-100
(CITACION JUDICIAL) (SOLG PARA USO.DE LA CORTE) &
NOTICE TO DEFENDANT: WORLDWIDE GROUND TRANSPORTATION
(AVISO AL DEMANDADO): SOLUTIONS, INC.; JAMES BROWN, an
=7
atat go
5 Ese iw G “o
individual; and DOES 1 through 5, inclusive.0
27 APR 12 P27
ar
BY,
m
NG YER tY
YOU ARE BEING SUED BY PLAINTIFF: PHILIP RESTIVO
{LO ESTA DEMANDANDO EL DEMANDANTE):
NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information
below.
You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and fave & copy
served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your
case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts
Online Self-Help Center (wvw.courtinfo.ca.gov/seifhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask
the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property
may be taken without further warning from the court.
There are other les gal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney
referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate
these nonprofit groups at the California Legal Services Web site (www./awhelpcalifomia.org), the California Courts Ontine Self-Help Center
(www. courtinfo.ca.gov/selfhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and
Costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case.
iAVISO! Lo han demandado. Sino responde dentro de 30 dias, fa corte puede decidir en su contra sin escuchar su version, Lea fa informacion a
continuacién
Tiene 30 DIAS DE CALENDARIO después de que le entreguen esta citacién ¥ papeles legales para presentar una respuesta por escrito en esta
corte y hacer que se entregue una cop! fa al demandante. Una carta o una llamada telefénica no lo protegen. Su respuesta por escrito tiene que estar
en formato legal correcta si desea que procesen su caso en la corte. Es posible que haya un formulario que usted pueda usar para su respuesta.
Puede encontrar estos formularios de la corte y mds informacién en ef Centro de Ayuda de las Cortes de Califor a (www.sucorte.ca.gov), en la
biblioteca de leyes de su condado 0 en ja corte que le quede mas cerca. Sino puede pagar /a cuota de presenta cién, pida al secretario de Ia corte
que le dé un formulario de exencién da pago de cuotas. Sino presenta su respuesta a tiempo, puede perder el caso por incumplimiento y le corte le
podré quitar su sueldo, dinero y bienes sin més advertencia.
Hay otros requisitos legaies. Es recomendable que llame a un abot gado inmediatamente. Si no conoce a un abogado, puede Hamara un servicio de
remision a abogados. Si no puede pagar a un abogado, es posible que cumpla con los requisitos para obtener servicios legales gratuitos de un
rama de servicios legates sin fines de lucro. Puede encontrar estos grupos sin fines de lucro en el sitio web de California Legal Services,
(www. lawhelpcalifornia.org), en ef Centro de Ayuda de fas Cortes de Cal lifornia, (weew.sucorte.ca.gov) o poniéndose én contacto con la corte o ef
colegio de abogados locales. AVISO;: Por Ie: ¥y, la corte tiene derecho a reclamar las cuotas y los costos exentos por imponer un gravamen sobre
cualquier recuperacién de $10,000 6 mas de valor recibide mediante un acuerdo o una conces: in de arbitraje en un caso de derecho civil, Tiene que
pagar el gravamen de fa corte antes de que fa corte pueda desechar ef caso.
he name and address of the court Is:
(El nombre y direccién de fa corte es):
SANTA CLARA COUNTY SUPERIOR COURT
CASE NUME
|(Némera
det F% CV3 08469
191 N. First Street
San Jose, CA 95113
The name, address, and telephone number of plaintiff's attorney, or plaintiff without an attorney, is:
(El nombre, la direccion y el ntimero de teléfono del ab jogado del demandante, o del demandante que no tiene abogado, es):
Michael G. Ackerman (64997) 408-261-5800 408~261-5900
Law Offices of Michael G. Ackerman
2391 The Alameda, Suite 100
Santa Clara, CA 95050
DATE:
(APR 1 2 2017 Clerk, by GUYEN , Deputy
(Fecha) (Secretaria) (Adjunto)
(For proof of service of this summons, use Proof of Service of Summons (form POS-07 0).,
(Para prueba de entrega de esta citatin use el formulario Proof of Service of Summons, (POS-010)).
NOTICE TO THE PERSON SERVED: You are served
[SEA] 1. (__] as an individual defendant.
ie AS 2. [__] as the person sued under the fictitious name of (specify):
BOA RES. 3.L on behalf of (specify):
fs;fai iS I
eZ
re 7 under: [“] CCP 416.10 (corporation) [_] CCP 416.60 (minor)
XG NY, {__] CCP 416.20 (defunct corporation) (__] CCP 416.70 (conservatee)
om {__] CCP 416.40 (association or partnership) [_] CCP 416.90 (authorized person)
{[_] other (specify):
4. [__] by personal delivery on (date): Paga tof 1
Form Adopted for Mandatory Use Code of Civil Procedure §§ 412.20, 485
Judicial Council of California SUMMONS
‘SUM-100 [Rev, July 1, 2009) Satigns
INSTRUCTIC. . ON HOW TO COMPLETE THE COVER __,EET CM-010
To Plaintiffs and Others Filing First Papers. If you are filing a first paper (for example, a complaint) in a civil case, you must
complete and file, along with your first paper, the Civi! Case Cover Sheet contained on page 1. This information will be used to compile
statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet. In item 1, you must check
one box for the case type that best describes the case. /f the case fits both a general and a more specific type of case listed in item 1,
check the more specific one. !f the case has multiple causes of action, check the box that best indicates the primary cause of action.
To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover
sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party, its
counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court.
To Parties in Rule 3.740 Collections Cases. A "collections case" under rule 3.740 is defined as an action for recovery of money owed
in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in which
property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort
damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of attachment.
The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general time-for-service
requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections case will be subject
to the requirements for service and obtaining a judgment in rule 3.740,
To Parties in Complex Cases. in complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the
case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by
completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the
complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the
Plaintiff's designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that
the case is complex. GASE TYPES AND EXAMPLES
Auto Tort Contract Provisionally Complex Civil Litigation (Cal.
Auto (22)—Personal Injury/Property Breach of Contract/Warranty (06) Rules of Court Rules 3.400-3.403)
Damage/Wrongful Death Breach of Rental/Lease Antitrust/Trade Regulation (03)
Uninsured Motorist (46) (if the Contract (not unlawful detainer Construction Defect (10)
case involves an uninsured or wrongful eviction)
Contract/Warranty Breach—Seller Claims Involving Mass Tort (40)
motorist ciaim subject to
Plaintiff (not fraud or negligence) Securities Litigation (28)
arbitration, check this item EnvironmentalToxic Tort (30)
instead of Auto) Negligent Breach of Contract/
Warranty Insurance Coverage Claims
‘Other PI/PDAWD (Personal Injury! Other Breach of Contract/Warranty {arising from provisionally complex
Property Damage/Wrongful Death} Collections (e.g., money owed, open case type listed above) (41)
Tort book accounts) (08)
Asbestos (04) Enforcement of Judgment
Collection Case—Seller Plaintiff
Asbestos Property Damage Enforcement of Judgment (20)
Other Promissory Note/Collections
Asbestos Personal Injury/ Case Abstract of Judgment (Out of
Wrongful Death Insurance Coverage (not provisionally County)
Product Liability (not ashestos or complex) (18) Confession of Judgment (non-
toxic/environmental) (24) Auto Subrogation domestic reiations)
Medical Malpractice (45) Other Coverage Sister State Judgment
Medical Malpractice— Other Contract (37) Administrative Agency Award
Physicians & Surgeons Contractual Fraud (not unpaid taxes)
Other Professional Health Care Other Contract Dispute Petition/Certification of Entry of
Malpractice Real Property Judgment on Unpaid Taxes
Other P/PDIWD (23) Eminent Domain/Inverse ‘Other Enforcement of Judgment
Premises Liability (e.g., slip Condemnation (14) Case
and fall Wrongful Eviction (33) Miscellaneous Civil Compiaint
Intentional Bodily lajury/PDAWD- Other Real Property (6.g., quiet title) (26) RICO (27)
(@.g., assault, vandalism) Writ of Possession of Real Property Other Complaint (not specified
Mortgage Foreclosure above) (42)
Intentional Infliction of Quiet Title
Emotional Distress Other Real Property (not eminent
Declaratory Relief Only
Negligent Infliction of domain, landlord/tenant, or
Injunctive Relief Only (non
Emotional Distress harassment)
foreclosure)
Other PYPDAWD- Unlawful Detainer Mechanics Lien
Non-Pi/PD/WD (Other) Tort Commercial (31) Other Commercial Complaint
Business Tort/Unfair Business Residential (32) Case (non-fortnon-complex)
Practice (07) Other Civil Complaint
Drugs (38) (if the case invoives illegal
Givil Rights (e.9., discrimination, (non-tarnon-camplex)
drugs, check this item; otherwise,
false arrest) (not civil Miscellaneous Civil Petition
report as Commercial or Residential)
harassment) (08) Partnership and Corporate
Judicial Review
Defamation (e.g., slander, libel) Asset Forfeiture (05) Governance (21)
(43) Petition Re: Arbitration Award (11) Other Petition (not specified
Fraud (16) ‘Writ of Mandate (02) above) (43)
Intellectual Property (19) Writ-Administrative Mandamus Civi! Harassment
Professional Negligence (25) Writ-Mandamus on Limited Court Workplace Violence
Case Matter Elder/Dependent Adult
Legal Malpractice
Abuse
Other Professional Malpractice Writ-Other Limited Court Case
Review Election Contest
{not medical or legal)
Petition for Name Change
Other Non-P/PDIWD Tort (38) Other Judicial Review (39)
Employment Review of Health Officer Order Petition for Relief from Late
Claim
Wrongful Termination (36) Notice of Appeal-Labor
Other Employment (15) Commissioner Appeals Other Civil Petition
CM-010 TRev. July 1, 2007) CIVIL CASE COVER SHEET Page
2 of 2
£2,
olIS
Michael G. Ackerman, Esq. (SBN 64997)
Fl f
LAW OFFICES OF MICHAEL G. ACKERMAN
2391 The Alameda, Suite 100 20H) APR ie Poi 27
Santa Clara, CA 95050 n
Telephone: (408) 261-5800
Facsimile: (408) 261-5900 GoUaTY
Email: mga@mgackermanlaw.com
UVEN
Attorneys for Plaintiff,
PHIL RESTIVO
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
10 COUNTY OF SANTA CLARA
i
PHILIP RESTIVO, CaseNo: 17% CV3 08469
12
Plaintiff, COMPLAINT FOR BREACH OF
13 CONTRACT (SETTLEMENT
VS. AGREEMENT)
14
WORLDWIDE GROUND
15 TRANSPORTATION SOLUTIONS, INC.; UNLIMITED JURISDICTION OVER
JAMES BROWN, an individual; and DOES $25,000.00
16 1 through 5, inclusive.
17 Defendants. JURY TRIAL DEMANDED
18
19 COMES now Plaintiff, Philip Restivo, and alleges as follows against Defendants, Worldwide
Ground Transportation Solutions, Inc. and James Brown and DOES 1-5, inclusive as follows:
21 FIRST CAUSE OF ACTION
22 (reach of Settlement Agreement )
23 I Plaintiff Philip Restivo is, and at all times herein mentioned was, an individual residing
within the County of Santa Clara, State of California.
25 2 Defendants, Worldwide Ground Transportation Solutions, Inc., is a corporation organized
26 in the State of California and doing business within the County of Santa Clara, State of California.
27 3 Defendant, James Brown is, and at all times herein mentioned was, an individual residing
28 within the County of Santa Clara, State of California. ‘This action involves contracts which were entered
-1-
COMPLAINT FOR BREACH OF CONTRACT (SETTLEMENT AGREEMENT)
into and to be performed within the County of Santa Clara.
4 Plaintiff is ignorant of the truc names and capacities of the Defendants sued herein as
DOES 1 through 5, inclusive, and therefore sues these Defendants by such fictitious names. Plaintiff will
amend his complaint to allege their true names and capacities when ascertained. Plaintiffis informed and
believes and thereon alleges that each of the fictitiously named Defendants is responsible in some manner
for the occurrences hereon alleged, and that Plaintiff's damages as herein alleged were proximately
caused by their conduct.
5 Plaintiff is informed and believe and thereon alleges that each of the Defendants named
herein by such fictitious names were and are parties to the contract herein alleged, and engaged in the
10 conduct hereinafter alleged in breach of said contract. On this basis, said Defendants are parties to the
il agreement and liable thereon for breach thereof.
12 6 On or about May 8, 2014, Restivo Enterprises, Inc. entered into an agreement to sell assets
13 which were to be described in an exhibit attached to the agreements. The Offer and Agreement to Buy
14 as well as the Addendum to said agreements are attached hereto as Exhibit “A”. Pursuant to the terms
15 of the Offer and Agreement to Buy and Addendums, Phil Restivo individually was a beneficiary of the
16 aforementioned agreements in that he was to provide consulting services to the buyer for a period of 18
17 months (paragraph 4) and was to personally receive discount limousine service for the duration of the
18 covenant not to compete (paragraph 5). In addition, the parties entered into a covenant not to compete
19 attached hereto as Exhibit “B”.
20 7 Thereafter, a dispute arose between the parties resulting in the parties participating in a
21 mediation pursuant to paragraph 16 of the Offer and Agreement to Buy. The mediation took place on
22 or about September 17, 2015 before a neutral mediator, Carlos J. Alarcon. The parties signed a mediated
23 settlement agreement a true and correct copy of which is attached hereto as Exhibit “C”. Under the terms
24 of the mediated settlement agreement, James Brown, the principal of Defendant, Worldwide Ground
25 Transportation Solutions, Inc., agreed that Phil Restivo was to receive discount limousine services
26 pursuant to the aforementioned Addendum to Offer and Agreement to Buy for a value of no more than
27 $5,000.00 per month, which $5,000.00 per month was to be accumulated and carried over on a month
28 to month basis. Thereafter, Plaintiff made repeated requests for discount limousine services, all of which
os
COMPLAINT FOR BREACH OF CONTRACT (SETTLEMENT AGREEMENT)
were declined by Defendants stating either that they were too busy or that they did not have a driver.
Defendants have breached the aforementioned mediated settlement agreement by refusing and failing to
provide discount limousine services a promised under the original addendum to Offer and Agreement to
Buy and the mediated settlement agreement.
8 Plaintiff has been damaged in the sum of $5,000.00 per month from and after September
17, 2015 until the present and will continue to be damaged in the future in the same amount until June
15, 2021 the term of the covenant not to compete. Pursuant to the covenant not to compete attached as
Exhibit “B”, the covenant is of no force or effect if there is a breach of the obligation to provide
limousine services.
10 PRAYER FOR RELIEF
11 WHEREFORE, Plaintiff prays for judgment against Defendants and each of them as follows:
12 I For damages in the sum of $5,000.00 per month commencing September 17, 2015 and
13 continuing through the date of trial and for future damages in the sum of $5,000.00 per
14 month from and after the date of trial through June 15, 2021;
15 For a declaration from the Court that the covenant not to compete is now terminated
16 and of no further force and effect;
17 For costs of suit incurred herein; and
18 For such other and further relief as the Court may deem just and proper under the
19 premises.
2
DATED: April _/7,, 2017 LAW OFFICES OF
21 MICHAEL G.
22
23
24 By: Ch U lp
CHAEL G
25 ttorneys fot laintiff, PHIL RESTIVO
26
CA\MyDoos\Restivo\BrownJames\Complaint.wpd
27
28
sas
COMPLAINT FOR BREACH OF CONTRACT (SETTLEMENT AGREEMENT)
i
Br ~~" MATCHING BUYERS & SELLERS SINCE 1981
BusinessTeam
OFFER AND AGREEMENT TO BUY
1. The Buyer, Worldwide Ground Transportation Solutions Inc.
; Offers and agrees to buy from its owner, the Seller,
Restivo Enterprises, Inc. the business identified, including equipment, fixtures, goodwill, intellectual property,
inventory, accounts receivable, trademarks, websites, url's, names, phone numbers, fax numbers, transfer rab p licenses, franchises,
lease rights and improvements (but not unless otherwise specified, bank accounts, cash deposits, or SEC -
Business Name and Location:_Le Grande-A ffaire: Limousine Service; 2590-Lafayette
St, Santa Clara-CA'95050°
2. The purchase price shall be $ 300.000.00 payable as follows:
@s 200,000.00 as a deposit by check payable to William H. Dunn, Esq. , escrow holder,
which shall be cashed when this offer is accepted. Deposit to be part of the down payment.
(b)$ 0.00
additional deposit to be paid upon the signing of escrow instructions.
{c) $ 100,000.00 the balance of the down payment to be deposited in escrow Ly fen 10)
TT ten ¢{ days or [7] 15 days
before the scheduled closing date.
@s$ 300,000.06 total down payment (at+b+c)
€)S 0.00 new loan by institutional lender. Buyer's obligations under this Agreement are conditional upon
Buyer, at Buyer's expense, obtaining a written loan commitment from an institutional lender in
the principal amount indicated, In the event that Buyer is unable to obtain the loan commitment
or does not waive this condition in writing within ) _____ days after the mutual execution of this
Agreement, either party may terminate this Agreement. Buyer shall act diligently.and in good faith
to obtain all necessary financing for the purchase of the business. For loans referred to
above requiring an application, Buyer shall submit to 0 lender(s) a
completed written application with all supporting financial information required by Jender(s)
within five (5) days after the mutual execution of this Agreement.
S$ 0.00 assumption of a note balance payable. If the actual amount varies from this amount [?] note to
Seller or ["] down payment shall be adjusted up or down.
(g)§ 0.00 the balance in the form of a promissory note, payable to Seller, secured by business assets at
0% payable at $0.00 _for 0 __ months with no prepayment penalty. (Note to be
assumable with note holder's consent, which may not be unreasonably withheld and may be
subordinate to institutional lender's note [2 (e) above]).
(h)$ 300,000.00 total price.
3. Escrow: Escrow instructions will be signedbysl 13/14 . Escrow shall close on or before 9/15/14 . Escrow fees
and closing costs shall be shared equally between Buyer and Seller. Possession shall change as soon as escrow closes. Escrow Holder
is authorized to immediately commence bulk sale compliance and pay costs incurred from deposit. Broker is a party to the escrow as
to the payment of the Broker's fee.
4. Inventory/Accounts Receivable/Accounts Payable/Work in Process: The total price shall include approximately a) $. 0.00
inventory (at seller's cost), b) $0. accounts receivable (seller warrants that accounts receivable are collectible),
c)$ 0.00 - work in process, less accounts payable, d) $.0.00 _ for a total, a) + b) +c) -d), $0.00 (Total).
If the Total varies from this amount then the purchase price shall be adjusted accordingly and the [note to the Seller or [7] down
payment shall be also adjusted. Total shall not exceed $0.00 or be less than $0.00 Total shall be calculated by
Buyer and Seller just prior to close of escrow.
5. Verification of Business Performance: Buyer shall request within 1 days of mutual execution of this Agreement and Seller
agrees to provide, within days of such request all information reasonably necessary to verify that business performance is,
was, and remains consistent with information previously provided by Seller. Buyer shall have days after receipt to
examine and approve such information. If Buyer does not approve business performance in writing within the specified time period
either, party may terminate this Agreement. _ .w <
6. Examination of Business: By signing this Agreement, Buyer acknowledges that he is relying solely on his own inspection of
the business and the representations of the Seller, not the Broker, with regard to the prior operating history of the business,
the value of the assets being purchased and all other material facts in making the offer. Buyer acknowledges that Broker has
not verified and will not verify the representations of the Seller, and should any representation be untme, Buyer agrees to
look solely t ¢ Seller for relief and to hold Broker harmless in connection with any damages caused to
(Bayer init )
Buyer initial: saan) Broker initials _—_——_
~ “) Page I of 2
7. Un/under reported revenue and expenses: Business Team can not and will not, a) verify the aceuracy of any such
information, b) relay such information to Buyer and, c) any reliance.-by Buyer.upon:such information will-be- based solely.on
Buyer's examination of business. Buyer and Seller agree to indemnify and hold B ess Team harmless in the event of a
dispute between Buyer and Seller regarding both reported AND un/under repor enue and expenses.
Buyer initi KA ) Geller initials Cm
8. Competition: The Seller shall, at close of escrow, deliver to buyer an agreement nff to col pete against buyer for
years from the close of escrow within a hife radius.
9. Training: The Seller will train the Buyer for_4 weeks at_10 hours per week after close of escrow
atno charge to the Buy
Preview
CUMMING & ASSOCIATES, APLC William R. Cumming State Bar No. 200966 cumming@ cummingandassociateslaw.com 3080 Bristol Street, Sixth Floor, Suite 630 Costa Mesa, CA 92626 Telephone: (714) 432 6494 Facsimile: (714) 3162 LAW OFFICES OF NANCY M. BATTEL Nancy M. Battel (State Bar No. 126548) nancy@ battelaw.com 1101 Westwood Drive, Suite B San Jose, CA 95125 Telephone: 408 2946 Facsimile: 408 Attomeys for Defendants Worldwide Ground Transportation Solutions, Inc. and James Brown SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA PHILIP RESTIVO, Case No. 17CV 308469 Plaintiff, Judge Mary E. Arand Department 09 REPLY TO OPPOSITION TO MOTION WORLDWIDE GROUND FOR ATTORNEYS’ FEES TRANSPORTATION SOLUTIONS, INC.; JAMES BROWN, an individual; and DOES 1 Action Filed: April 12, 2017 ough 5, inclusive, Trial Date: March 11, 2019 Defendant REPLY TO OPPOSITION TO MOTION FOR ATTORNEYS’ FEES James Brown (“Brown”) submits the following reply to Philip Restivo’s (“Restivo”) opposition to Brown’s motion for attomey fees. After reviewing all the evidence in support of and in opposition to the motion for summary judgment as to whether Brown was a party to the Mediated Settlement A greement, Judge Arand stated in the order (1) there “was no basis” for concluding Brown signed the Mediated Settlement Agreement in his individual capacity, (2) Restivo failed to present any reasoned explanation for his position, and (3) his rather his theory rested entirely on conjecture and speculation. No doubt, Judge Arand’s order was harsh and put Restivo against the ropes to justify why Brown was considered a party to the Mediated Settlement A greement. 10 Restivo’s opposition does little to overcome the court’s finding that the lack of any 11 evidence supports the court granting the motion and awarding Brown attorney fees. 12 To properly respond to Restivo’s opposition, it will be helpful to step back in time and 13 evaluate the facts leading up to the court granting the motion for summary judgment dismissing 14 Brown from the case. 15 In 2014, Worldwide purchased the assets of Le Grande Affaire. After Worldwide paid for 16 the assets in full, Worldwide’s only remaining obligation was to provide Restivo with discount 17 limousine services, and Restivo in turn had an obligation to pay Worldwide for the services. The 18 specific agreement in Paragraph 4 of the Addendum to Offer & Agreement to Buy states: 19 “4, Discount Limousine Service: For the duration of the Covenant Not to 20 Compete, Phillip Restivo may use vehicles of the Buyer for a price equal to the cost 21 of the chauffeur and fuel subject to reasonable amount of use as agreed between 22 Buyer and Mr. Restivo, to service Mr. Restivo’s personal use, friends, trades and 23 family useage.” 24 After a period of time, a dispute arose between Worldwide and Restivo regarding discount 25 limousine services. So, Worldwide and Restivo decided to participate in mediation. There is no 26 dispute the terms in the Mediated Settlement A greement were the following and that Brown and 27 Restivo signed the Mediated Settlement A greement. 28 ae REPLY TO OPPOSITION TO MOTION FOR ATTORNEYS’ FEES “Vehicle trade use is good for any day or any time with the exception of Saturdays when 8 passenger or smaller is okay but anything over 8 passenger must be booked within 24 hours or less notification. 9 2 “The value of trade will be no more than $5,000 per month to include all classes of usage. The $5,000 is accumulated and carried over monthly but disregarded every four months, no more than $60,000 of value per year.” These terms were supposed to be incorporated into the Offer and Buy Agreement dated 5/8/14 9 The complaint filed on April 12, 2017, alleges both Brown and Worldwide were parties to 10 || the Mediated Settlement A greement and both breached the Mediated Settlement A greement. 11 Paragraph 7 of the complaint alleges: 12 “Under the terms of the mediated settlement agreement, James Brown, the 13 principal of Defendant, Worldwide Ground Transportation Solutions, Inc., 14 agreed that Phil Restivo was to receive discount limousine services pursuant to the 15 aforementioned Addendum to Offer and A greement to Buy for a value of no more 16 than $5,000.00 per month, which $5,000.00 per month was to be accumulated and 17 carried over on a month to month basis. Thereafter, Plaintiff made repeated requests 18 for discount limousine services, all of which were declined by Defendants stating 19 either that they were too busy or that they did not have a driver. Defendants have 20 breached the aforementioned mediated settlement agreement by refusing and 21 failing to provide discount limousine services a promised under the original 22 addendum to Offer and Agreement to Buy and the mediated settlement 23 agreement.” 24 (Complaint, 7, Ex. 1.) 25 Alleging Brown was a party to the Mediated Settlement A greement and breached the 26 Mediated Settlement A greement was a stretch. The reasons were because (1) Brown as an 27 individual had no obligation to provide discount limousine services; (2) Brown had no right to 28 receive money from Restivo for the discount limousine services provided; and (3) the Mediated ae REPLY TO OPPOSITION TO MOTION FOR ATTORNEYS’ FEES Settlement A greement states the underline purchase documents with W orldwide were supposed to incorporate the terms of the Mediated Settlement Agreement. Knowing these facts, and borrowing from Judge Arand’s ruling granting the motion for summary judgment, there was no basis to conclude Brown was a party to the Mediated Settlement A greement with obligations owed to Restivo. In response, Brown filed a demurrer to the complaint. One of the arguments raised in the demurrer was Brown should be dismissed because he was not a party to the Mediated Settlement Agreement. In ruling on the demurrer, the court was required to assume the allegations were true and 10 that Brown was a party to the Mediated Settlement Agreement. Given this assumption, the court 11 concluded: “the demurrer would not dispose of the entire cause of action since Brown appears to 12 be a party to the Settlement Agreement.” (Order re Demurrer, p. 5:27-6:2, Ex. B Restivo’s Request 13 for Judicial Notice) (emphasis added.) 14 During oral argument on the demurrer, the court stated on the record that another motion, 15 suggesting a motion for summary judgment, could be filed later to address the issue of whether 16 Brown was a party to the Mediated Settlement A greement. 17 On November 26, 2017, Restivo responded with denials of requests for admissions when 18 asked to (1) admit James Brown, as an individual, was not a party to the mediated settlement 19 agreement; (2) admit James Brown signed the mediated settlement agreement as a representative 20 of Worldwide; and (3) admit Restivo improperly named James Brown as a party in the case by 21 claiming he was a party to the mediated settlement agreement. 22 The fact that Restivo denied Brown was not a party of the Mediated Settlement A greement 23 in response to a request for admission and later lost on this issue opens the door for an award of 24 attorney fees. 25 Section 2033.420 states the court “shall” order the payment of such fees and costs unless it 26 finds the reasons for the denial was one of the following: (1) that an objection to the request was 27 sustained or a response to the request was waived; (2) the admission sought was of no substantial 28 importance; (3) the party failing to make the admission had reasonable ground to believe that the ae REPLY TO OPPOSITION TO MOTION FOR ATTORNEYS’ FEES would prevail on the matter; or (4) there was other good reason for the failure to admit the request. (Code Civ. Proc., § 2033.420, subd. (b).) Restivo relies exclusively on the defense of having “reasonable grounds” for believing that Brown would be considered a party in his individual capacity to the Mediated Settlement Agreement at trial. To avoid having to pay attorney fees and costs, Restivo must show that at the time of denial (i.e., November 26, 2017), he held a reasonably entertained and (i.e., based on admissible evidence) good faith belief that he would prevail on the issue at trial. (Laabs v. City of Victorville (2008) 163 Cal.A pp.4th 1242,1276.) The admissible evidence Restivo references in the opposition falls short of this standard. 10 First, Restivo did not prepare a declaration in support of the opposition explaining his good 11 faith belief that he would prevail on the issue at trial. Rather, Restivo’s attorney stepped into 12 Restivo’s shoes by stating: “Plaintiff had a good faith belief that he would prevail at trial given the 13 trial court's ruling on the demurrer and the words and signatures on the contract would prevail at 14 trial.” (Opp. 5:18-19.) The statute requires evidence of Restivo’s good faith belief and not what 15 his attorney believed. The fact that Restivo failed to provide a declaration to support his good faith 16 belief justifies granting the motion. 17 Second, Restivo’s reference to his declaration in support of the opposition to the motion for 18 summary judgment is irrelevant. The declaration states: “I had explained at the mediation thatI 19 wanted Mr. Brown to personally guarantee the settlement we made that day because I felt he and 20 the company had not lived up to the deal we had previously made.” (Opp. 3:13-15.) Restivo’s 21 subjective belief does not help him overcome the problems in front of him. 22 First, the question is not what Restivo reasonably believed whether Brown was a personal 23 guarantor of the Mediated Settlement Agreement, but rather whether he reasonably believed he 24 would prevail at trial on the issue of Brown being a party to the Mediated Settlement A greement. 25 (Grace v. Mansourian (2015) 240 Cal.A pp.4th 523, 530 [“In light of all of this evidence, 26 defendant's belief, however firmly held, was not reasonable. The question is not whether the 27 defendant reasonably believed he did not run the red light but whether he reasonably believed he 28 would prevail on that issue at trial.”] ae REPLY TO OPPOSITION TO MOTION FOR ATTORNEYS’ FEES Second, the alleged conversation with the mediator was never alleged in the complaint, the responses to the requests for admission, and was only between Restivo and the mediator. Thus, the alleged conversation and Restivo’s belief is not relevant. In conclusion, Brown is entitled to recover attomey’s fees based upon Restivo’s responses to the request for admissions. Restivo simply failed to produce sufficient evidence to support denying the motion. Restivo contends the attorney fees being requested are excessive. The request for attorney fees started after Restivo served his responses to the request for admissions and stopped after the court issued the order granting the motion for summary judgment. So, the beginning and end dates 10 are correct. It is difficult to separate the billable time associated with the issue of whether James 11 Brown was a party to the Mediated Settlement A greement because the issues are so intertwined. A 12 reasonable discount of the attorney fees would seem to be 15% of the amount requested. 13 Brown argues in the motion that if Restivo is entitled to recover attomey fees based upon 14 the attorney’s fees provision in the Offer and A greement to Buy, the court should also award 15 Brown attomney’s fees as the prevailing party. The reason is that the complaint alleges both Brown 16 and Restivo were parties to the Mediated Settlement Agreement. If the Mediated Settlement 17 Agreement was breached and Restivo is entitled to recover attomey’s fees, Brown should also be 18 entitled to recover attorney’s fees because he had to prove he was not a party to the agreement and 19 did not breach the agreement. (Hsuv. Abbara (1995) 9 Cal.4th 863, 870-871.) 20 In conclusion, the court should grant the motion and award Brown attorney fees. 21 22 Dated: June 7, 2019 CUMMING & ASSOCIATES, APLC 23 24 By: /s/ William R. Cumming William R. Cummins 25 Attomeys for Defendants Worldwide Ground Transportation Solutions, Inc. and 26 James Brown 27 28 ae REPLY TO OPPOSITION TO MOTION FOR ATTORNEYS’ FEES EXHIBIT 1 SUMMUNS SUM-100 (CITACION JUDICIAL) (SOLG PARA USO.DE LA CORTE) & NOTICE TO DEFENDANT: WORLDWIDE GROUND TRANSPORTATION (AVISO AL DEMANDADO): SOLUTIONS, INC.; JAMES BROWN, an =7 atat go 5 Ese iw G “o individual; and DOES 1 through 5, inclusive.0 27 APR 12 P27 ar BY, m NG YER tY YOU ARE BEING SUED BY PLAINTIFF: PHILIP RESTIVO {LO ESTA DEMANDANDO EL DEMANDANTE): NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below. You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and fave & copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-Help Center (wvw.courtinfo.ca.gov/seifhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court. There are other les gal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (www./awhelpcalifomia.org), the California Courts Ontine Self-Help Center (www. courtinfo.ca.gov/selfhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and Costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case. iAVISO! Lo han demandado. Sino responde dentro de 30 dias, fa corte puede decidir en su contra sin escuchar su version, Lea fa informacion a continuacién Tiene 30 DIAS DE CALENDARIO después de que le entreguen esta citacién ¥ papeles legales para presentar una respuesta por escrito en esta corte y hacer que se entregue una cop! fa al demandante. Una carta o una llamada telefénica no lo protegen. Su respuesta por escrito tiene que estar en formato legal correcta si desea que procesen su caso en la corte. Es posible que haya un formulario que usted pueda usar para su respuesta. Puede encontrar estos formularios de la corte y mds informacién en ef Centro de Ayuda de las Cortes de Califor a (www.sucorte.ca.gov), en la biblioteca de leyes de su condado 0 en ja corte que le quede mas cerca. Sino puede pagar /a cuota de presenta cién, pida al secretario de Ia corte que le dé un formulario de exencién da pago de cuotas. Sino presenta su respuesta a tiempo, puede perder el caso por incumplimiento y le corte le podré quitar su sueldo, dinero y bienes sin més advertencia. Hay otros requisitos legaies. Es recomendable que llame a un abot gado inmediatamente. Si no conoce a un abogado, puede Hamara un servicio de remision a abogados. Si no puede pagar a un abogado, es posible que cumpla con los requisitos para obtener servicios legales gratuitos de un rama de servicios legates sin fines de lucro. Puede encontrar estos grupos sin fines de lucro en el sitio web de California Legal Services, (www. lawhelpcalifornia.org), en ef Centro de Ayuda de fas Cortes de Cal lifornia, (weew.sucorte.ca.gov) o poniéndose én contacto con la corte o ef colegio de abogados locales. AVISO;: Por Ie: ¥y, la corte tiene derecho a reclamar las cuotas y los costos exentos por imponer un gravamen sobre cualquier recuperacién de $10,000 6 mas de valor recibide mediante un acuerdo o una conces: in de arbitraje en un caso de derecho civil, Tiene que pagar el gravamen de fa corte antes de que fa corte pueda desechar ef caso. he name and address of the court Is: (El nombre y direccién de fa corte es): SANTA CLARA COUNTY SUPERIOR COURT CASE NUME |(Némera det F% CV3 08469 191 N. First Street San Jose, CA 95113 The name, address, and telephone number of plaintiff's attorney, or plaintiff without an attorney, is: (El nombre, la direccion y el ntimero de teléfono del ab jogado del demandante, o del demandante que no tiene abogado, es): Michael G. Ackerman (64997) 408-261-5800 408~261-5900 Law Offices of Michael G. Ackerman 2391 The Alameda, Suite 100 Santa Clara, CA 95050 DATE: (APR 1 2 2017 Clerk, by GUYEN , Deputy (Fecha) (Secretaria) (Adjunto) (For proof of service of this summons, use Proof of Service of Summons (form POS-07 0)., (Para prueba de entrega de esta citatin use el formulario Proof of Service of Summons, (POS-010)). NOTICE TO THE PERSON SERVED: You are served [SEA] 1. (__] as an individual defendant. ie AS 2. [__] as the person sued under the fictitious name of (specify): BOA RES. 3.L on behalf of (specify): fs;fai iS I eZ re 7 under: [“] CCP 416.10 (corporation) [_] CCP 416.60 (minor) XG NY, {__] CCP 416.20 (defunct corporation) (__] CCP 416.70 (conservatee) om {__] CCP 416.40 (association or partnership) [_] CCP 416.90 (authorized person) {[_] other (specify): 4. [__] by personal delivery on (date): Paga tof 1 Form Adopted for Mandatory Use Code of Civil Procedure §§ 412.20, 485 Judicial Council of California SUMMONS ‘SUM-100 [Rev, July 1, 2009) Satigns INSTRUCTIC. . ON HOW TO COMPLETE THE COVER __,EET CM-010 To Plaintiffs and Others Filing First Papers. If you are filing a first paper (for example, a complaint) in a civil case, you must complete and file, along with your first paper, the Civi! Case Cover Sheet contained on page 1. This information will be used to compile statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet. In item 1, you must check one box for the case type that best describes the case. /f the case fits both a general and a more specific type of case listed in item 1, check the more specific one. !f the case has multiple causes of action, check the box that best indicates the primary cause of action. To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party, its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court. To Parties in Rule 3.740 Collections Cases. A "collections case" under rule 3.740 is defined as an action for recovery of money owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in which property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general time-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections case will be subject to the requirements for service and obtaining a judgment in rule 3.740, To Parties in Complex Cases. in complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the Plaintiff's designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that the case is complex. GASE TYPES AND EXAMPLES Auto Tort Contract Provisionally Complex Civil Litigation (Cal. Auto (22)—Personal Injury/Property Breach of Contract/Warranty (06) Rules of Court Rules 3.400-3.403) Damage/Wrongful Death Breach of Rental/Lease Antitrust/Trade Regulation (03) Uninsured Motorist (46) (if the Contract (not unlawful detainer Construction Defect (10) case involves an uninsured or wrongful eviction) Contract/Warranty Breach—Seller Claims Involving Mass Tort (40) motorist ciaim subject to Plaintiff (not fraud or negligence) Securities Litigation (28) arbitration, check this item EnvironmentalToxic Tort (30) instead of Auto) Negligent Breach of Contract/ Warranty Insurance Coverage Claims ‘Other PI/PDAWD (Personal Injury! Other Breach of Contract/Warranty {arising from provisionally complex Property Damage/Wrongful Death} Collections (e.g., money owed, open case type listed above) (41) Tort book accounts) (08) Asbestos (04) Enforcement of Judgment Collection Case—Seller Plaintiff Asbestos Property Damage Enforcement of Judgment (20) Other Promissory Note/Collections Asbestos Personal Injury/ Case Abstract of Judgment (Out of Wrongful Death Insurance Coverage (not provisionally County) Product Liability (not ashestos or complex) (18) Confession of Judgment (non- toxic/environmental) (24) Auto Subrogation domestic reiations) Medical Malpractice (45) Other Coverage Sister State Judgment Medical Malpractice— Other Contract (37) Administrative Agency Award Physicians & Surgeons Contractual Fraud (not unpaid taxes) Other Professional Health Care Other Contract Dispute Petition/Certification of Entry of Malpractice Real Property Judgment on Unpaid Taxes Other P/PDIWD (23) Eminent Domain/Inverse ‘Other Enforcement of Judgment Premises Liability (e.g., slip Condemnation (14) Case and fall Wrongful Eviction (33) Miscellaneous Civil Compiaint Intentional Bodily lajury/PDAWD- Other Real Property (6.g., quiet title) (26) RICO (27) (@.g., assault, vandalism) Writ of Possession of Real Property Other Complaint (not specified Mortgage Foreclosure above) (42) Intentional Infliction of Quiet Title Emotional Distress Other Real Property (not eminent Declaratory Relief Only Negligent Infliction of domain, landlord/tenant, or Injunctive Relief Only (non Emotional Distress harassment) foreclosure) Other PYPDAWD- Unlawful Detainer Mechanics Lien Non-Pi/PD/WD (Other) Tort Commercial (31) Other Commercial Complaint Business Tort/Unfair Business Residential (32) Case (non-fortnon-complex) Practice (07) Other Civil Complaint Drugs (38) (if the case invoives illegal Givil Rights (e.9., discrimination, (non-tarnon-camplex) drugs, check this item; otherwise, false arrest) (not civil Miscellaneous Civil Petition report as Commercial or Residential) harassment) (08) Partnership and Corporate Judicial Review Defamation (e.g., slander, libel) Asset Forfeiture (05) Governance (21) (43) Petition Re: Arbitration Award (11) Other Petition (not specified Fraud (16) ‘Writ of Mandate (02) above) (43) Intellectual Property (19) Writ-Administrative Mandamus Civi! Harassment Professional Negligence (25) Writ-Mandamus on Limited Court Workplace Violence Case Matter Elder/Dependent Adult Legal Malpractice Abuse Other Professional Malpractice Writ-Other Limited Court Case Review Election Contest {not medical or legal) Petition for Name Change Other Non-P/PDIWD Tort (38) Other Judicial Review (39) Employment Review of Health Officer Order Petition for Relief from Late Claim Wrongful Termination (36) Notice of Appeal-Labor Other Employment (15) Commissioner Appeals Other Civil Petition CM-010 TRev. July 1, 2007) CIVIL CASE COVER SHEET Page 2 of 2 £2, olIS Michael G. Ackerman, Esq. (SBN 64997) Fl f LAW OFFICES OF MICHAEL G. ACKERMAN 2391 The Alameda, Suite 100 20H) APR ie Poi 27 Santa Clara, CA 95050 n Telephone: (408) 261-5800 Facsimile: (408) 261-5900 GoUaTY Email: mga@mgackermanlaw.com UVEN Attorneys for Plaintiff, PHIL RESTIVO SUPERIOR COURT FOR THE STATE OF CALIFORNIA 10 COUNTY OF SANTA CLARA i PHILIP RESTIVO, CaseNo: 17% CV3 08469 12 Plaintiff, COMPLAINT FOR BREACH OF 13 CONTRACT (SETTLEMENT VS. AGREEMENT) 14 WORLDWIDE GROUND 15 TRANSPORTATION SOLUTIONS, INC.; UNLIMITED JURISDICTION OVER JAMES BROWN, an individual; and DOES $25,000.00 16 1 through 5, inclusive. 17 Defendants. JURY TRIAL DEMANDED 18 19 COMES now Plaintiff, Philip Restivo, and alleges as follows against Defendants, Worldwide Ground Transportation Solutions, Inc. and James Brown and DOES 1-5, inclusive as follows: 21 FIRST CAUSE OF ACTION 22 (reach of Settlement Agreement ) 23 I Plaintiff Philip Restivo is, and at all times herein mentioned was, an individual residing within the County of Santa Clara, State of California. 25 2 Defendants, Worldwide Ground Transportation Solutions, Inc., is a corporation organized 26 in the State of California and doing business within the County of Santa Clara, State of California. 27 3 Defendant, James Brown is, and at all times herein mentioned was, an individual residing 28 within the County of Santa Clara, State of California. ‘This action involves contracts which were entered -1- COMPLAINT FOR BREACH OF CONTRACT (SETTLEMENT AGREEMENT) into and to be performed within the County of Santa Clara. 4 Plaintiff is ignorant of the truc names and capacities of the Defendants sued herein as DOES 1 through 5, inclusive, and therefore sues these Defendants by such fictitious names. Plaintiff will amend his complaint to allege their true names and capacities when ascertained. Plaintiffis informed and believes and thereon alleges that each of the fictitiously named Defendants is responsible in some manner for the occurrences hereon alleged, and that Plaintiff's damages as herein alleged were proximately caused by their conduct. 5 Plaintiff is informed and believe and thereon alleges that each of the Defendants named herein by such fictitious names were and are parties to the contract herein alleged, and engaged in the 10 conduct hereinafter alleged in breach of said contract. On this basis, said Defendants are parties to the il agreement and liable thereon for breach thereof. 12 6 On or about May 8, 2014, Restivo Enterprises, Inc. entered into an agreement to sell assets 13 which were to be described in an exhibit attached to the agreements. The Offer and Agreement to Buy 14 as well as the Addendum to said agreements are attached hereto as Exhibit “A”. Pursuant to the terms 15 of the Offer and Agreement to Buy and Addendums, Phil Restivo individually was a beneficiary of the 16 aforementioned agreements in that he was to provide consulting services to the buyer for a period of 18 17 months (paragraph 4) and was to personally receive discount limousine service for the duration of the 18 covenant not to compete (paragraph 5). In addition, the parties entered into a covenant not to compete 19 attached hereto as Exhibit “B”. 20 7 Thereafter, a dispute arose between the parties resulting in the parties participating in a 21 mediation pursuant to paragraph 16 of the Offer and Agreement to Buy. The mediation took place on 22 or about September 17, 2015 before a neutral mediator, Carlos J. Alarcon. The parties signed a mediated 23 settlement agreement a true and correct copy of which is attached hereto as Exhibit “C”. Under the terms 24 of the mediated settlement agreement, James Brown, the principal of Defendant, Worldwide Ground 25 Transportation Solutions, Inc., agreed that Phil Restivo was to receive discount limousine services 26 pursuant to the aforementioned Addendum to Offer and Agreement to Buy for a value of no more than 27 $5,000.00 per month, which $5,000.00 per month was to be accumulated and carried over on a month 28 to month basis. Thereafter, Plaintiff made repeated requests for discount limousine services, all of which os COMPLAINT FOR BREACH OF CONTRACT (SETTLEMENT AGREEMENT) were declined by Defendants stating either that they were too busy or that they did not have a driver. Defendants have breached the aforementioned mediated settlement agreement by refusing and failing to provide discount limousine services a promised under the original addendum to Offer and Agreement to Buy and the mediated settlement agreement. 8 Plaintiff has been damaged in the sum of $5,000.00 per month from and after September 17, 2015 until the present and will continue to be damaged in the future in the same amount until June 15, 2021 the term of the covenant not to compete. Pursuant to the covenant not to compete attached as Exhibit “B”, the covenant is of no force or effect if there is a breach of the obligation to provide limousine services. 10 PRAYER FOR RELIEF 11 WHEREFORE, Plaintiff prays for judgment against Defendants and each of them as follows: 12 I For damages in the sum of $5,000.00 per month commencing September 17, 2015 and 13 continuing through the date of trial and for future damages in the sum of $5,000.00 per 14 month from and after the date of trial through June 15, 2021; 15 For a declaration from the Court that the covenant not to compete is now terminated 16 and of no further force and effect; 17 For costs of suit incurred herein; and 18 For such other and further relief as the Court may deem just and proper under the 19 premises. 2 DATED: April _/7,, 2017 LAW OFFICES OF 21 MICHAEL G. 22 23 24 By: Ch U lp CHAEL G 25 ttorneys fot laintiff, PHIL RESTIVO 26 CA\MyDoos\Restivo\BrownJames\Complaint.wpd 27 28 sas COMPLAINT FOR BREACH OF CONTRACT (SETTLEMENT AGREEMENT) i Br ~~" MATCHING BUYERS & SELLERS SINCE 1981 BusinessTeam OFFER AND AGREEMENT TO BUY 1. The Buyer, Worldwide Ground Transportation Solutions Inc. ; Offers and agrees to buy from its owner, the Seller, Restivo Enterprises, Inc. the business identified, including equipment, fixtures, goodwill, intellectual property, inventory, accounts receivable, trademarks, websites, url's, names, phone numbers, fax numbers, transfer rab p licenses, franchises, lease rights and improvements (but not unless otherwise specified, bank accounts, cash deposits, or SEC - Business Name and Location:_Le Grande-A ffaire: Limousine Service; 2590-Lafayette St, Santa Clara-CA'95050° 2. The purchase price shall be $ 300.000.00 payable as follows: @s 200,000.00 as a deposit by check payable to William H. Dunn, Esq. , escrow holder, which shall be cashed when this offer is accepted. Deposit to be part of the down payment. (b)$ 0.00 additional deposit to be paid upon the signing of escrow instructions. {c) $ 100,000.00 the balance of the down payment to be deposited in escrow Ly fen 10) TT ten ¢{ days or [7] 15 days before the scheduled closing date. @s$ 300,000.06 total down payment (at+b+c) €)S 0.00 new loan by institutional lender. Buyer's obligations under this Agreement are conditional upon Buyer, at Buyer's expense, obtaining a written loan commitment from an institutional lender in the principal amount indicated, In the event that Buyer is unable to obtain the loan commitment or does not waive this condition in writing within ) _____ days after the mutual execution of this Agreement, either party may terminate this Agreement. Buyer shall act diligently.and in good faith to obtain all necessary financing for the purchase of the business. For loans referred to above requiring an application, Buyer shall submit to 0 lender(s) a completed written application with all supporting financial information required by Jender(s) within five (5) days after the mutual execution of this Agreement. S$ 0.00 assumption of a note balance payable. If the actual amount varies from this amount [?] note to Seller or ["] down payment shall be adjusted up or down. (g)§ 0.00 the balance in the form of a promissory note, payable to Seller, secured by business assets at 0% payable at $0.00 _for 0 __ months with no prepayment penalty. (Note to be assumable with note holder's consent, which may not be unreasonably withheld and may be subordinate to institutional lender's note [2 (e) above]). (h)$ 300,000.00 total price. 3. Escrow: Escrow instructions will be signedbysl 13/14 . Escrow shall close on or before 9/15/14 . Escrow fees and closing costs shall be shared equally between Buyer and Seller. Possession shall change as soon as escrow closes. Escrow Holder is authorized to immediately commence bulk sale compliance and pay costs incurred from deposit. Broker is a party to the escrow as to the payment of the Broker's fee. 4. Inventory/Accounts Receivable/Accounts Payable/Work in Process: The total price shall include approximately a) $. 0.00 inventory (at seller's cost), b) $0. accounts receivable (seller warrants that accounts receivable are collectible), c)$ 0.00 - work in process, less accounts payable, d) $.0.00 _ for a total, a) + b) +c) -d), $0.00 (Total). If the Total varies from this amount then the purchase price shall be adjusted accordingly and the [note to the Seller or [7] down payment shall be also adjusted. Total shall not exceed $0.00 or be less than $0.00 Total shall be calculated by Buyer and Seller just prior to close of escrow. 5. Verification of Business Performance: Buyer shall request within 1 days of mutual execution of this Agreement and Seller agrees to provide, within days of such request all information reasonably necessary to verify that business performance is, was, and remains consistent with information previously provided by Seller. Buyer shall have days after receipt to examine and approve such information. If Buyer does not approve business performance in writing within the specified time period either, party may terminate this Agreement. _ .w < 6. Examination of Business: By signing this Agreement, Buyer acknowledges that he is relying solely on his own inspection of the business and the representations of the Seller, not the Broker, with regard to the prior operating history of the business, the value of the assets being purchased and all other material facts in making the offer. Buyer acknowledges that Broker has not verified and will not verify the representations of the Seller, and should any representation be untme, Buyer agrees to look solely t ¢ Seller for relief and to hold Broker harmless in connection with any damages caused to (Bayer init ) Buyer initial: saan) Broker initials _—_——_ ~ “) Page I of 2 7. Un/under reported revenue and expenses: Business Team can not and will not, a) verify the aceuracy of any such information, b) relay such information to Buyer and, c) any reliance.-by Buyer.upon:such information will-be- based solely.on Buyer's examination of business. Buyer and Seller agree to indemnify and hold B ess Team harmless in the event of a dispute between Buyer and Seller regarding both reported AND un/under repor enue and expenses. Buyer initi KA ) Geller initials Cm 8. Competition: The Seller shall, at close of escrow, deliver to buyer an agreement nff to col pete against buyer for years from the close of escrow within a hife radius. 9. Training: The Seller will train the Buyer for_4 weeks at_10 hours per week after close of escrow atno charge to the Buy