Motion for Judicial Notice in Philip Restivo vs Worldwide Ground Transportation Solutions, Inc. at el| Trellis.Law

On April 12, 2017 a Request,Application was filed involving a dispute between and James Brown, for Breach of Contract/Warranty Unlimited(06) in the District Court of Santa Clara County.

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Michael G. Ackerman, Esq. (SBN 64997)
LAW OFFICES OF MICHAEL G. ACKERMAN
2391 The Alameda, Suite 100
Santa Clara, CA 95050
Telephone: (408) 261-5800
Facsimile: (408) 261-5900
Email: mga@mgackermanlaw.com

Attorneys for Plaintiff,
PHIL RESTIVO

SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
10

11 PHILIP RESTIVO, Case No.: 17CV308469

12 Plaintiff,
REQUEST FOR JUDICIAL NOTICE
13 VS.
Date: February 5, 2019
14 WORLDWIDE GROUND Time: 9:00 a.m
TRANSPORTATION SOLUTIONS, INC.; ) Dept.: 9
15 JAMES BROWN, an individual; and DOES ) Judge: Hon. Mary E. Arand
1 through 5, inclusive.
16 )
Defendants. )
17 )
18 TO ALL PARTIES AND THEIR ATTORNEYS’ OF RECORD:

19 Plaintiff , Phil Restivo, requests that the Court take Judicial notice of the following documents:

20
Exhibit 1: ORDER ON MOTION TO DISQUALIFY THE LAW OFFICES OF
21 MICHAEL G. ACKERMAN AS ATTORNEY OF RECORD FOR
PHILIP RESTIVO, filed June 4, 2018;
22
Exhibit 2: ORDER RE: DEMURRER, filed August 10, 2017.
23
AUTHORITY
24
Evidence Code §453 specifies that a trial court shall take judicial notice of any matter specified
25
in Evidence Code §452 if the party requests it and:
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"(a) Gives each adverse party sufficient notice of the request, through the pleadings or
27
otherwise, to enable such adverse party to prepare to meet the request; and
(b) Furnishes the court with sufficient information to enable it to take judicial notice of

ae
REQUEST FOR JUDICIAL NOTICE Case No.: 17CV308469
the matter."

Evidence Code §452 provides that judicial notice may be taken of records of any court of this

State or any court of the record of the United States or any state of the United States, as well as statutory

law. (Evidence Code §§452(a)(6)(d)(1) and (d)(2)). The above documents are clearly within those

matters which may be judicially noticed.

Based on the foregoing, Defendant requests that this Court to take judicial notice of the above

documents as well as the underlying facts in this matter.

10 DATED: December 27, 2018 LAW OFFICES OF
MICHAEL ACKERMAN
11

2B
By CMe lf
13 ICHA sat . KCKERMAN, ESQ.
ttorneys for Plaintiff, PHILIP RESTIVO
14

24
25

“ae
REQUEST FOR JUDICIAL NOTICE Case No.: 17CV308469
Michael G. Ackerman, Esq. (SBN 64997)
LAW OFFICES OF MICHAEL G. ACKERMAN
2391 The Alameda, Suite 100
Santa Clara, CA 95050
Telephone: (408) 261-5800
FP JUN 04 2018
e
Facsimile: (408) 261-5900
Email: mga@magackermanlaw.com Cler| of t he Court
Superior Cour of CA,
County of Santa Ciara
DEPUTY

Attorneys for Plaintiff,
PHIL RESTIVO

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

COUNTY OF SANTA CLARA
10
PHILIP RESTIVO, Case No.: 17CV308469
ad
Plaintiff,
12 ORDER ON MOTION TO DISQUALIFY
vs.
THE LAW OFFICES OF MICHAEL G.
13 ACKERMAN AS ATTORNEY OF
RECORD FOR PLAINTIFF PHILIP
14 WORLDWIDE GROUND RESTIVO
TRANSPORTATION SOLUTIONS, INC.;
15 JAMES BROWN, an individual; and
DOES 1 through 5, inclusive.
16
Defendants.
17
18 Defendants Worldwide Ground Transportation Solutions, Inc. and James Brown's
19
motion to disqualify the Law Offices of Michael G. Ackerman as attorney of record for
20
Plaintiff Philip Restivo came on for hearing in Department 9 of the above-entitled court
21
before the honorable Mary E. Arand, Judge of the Santa Clara County Superior Court, on
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December 8, 2017 at 10:00 a.m. Michael G. Ackerman appeared in person. William R.
23
24 Cumming and Kathryn Anderson appeared by CourtCall. The matter was not reported by

25 a court reporter. The court, having considered the memoranda and declarations filed in

26 support of and in opposition to said motion, makes the following order:
27
4
28
ORDER ON MOTION TO DISQUALIFY THE LAW OFFICES
OF MICHAEL G. ACKERMAN AS ATTORNEY OF RECORD “
FOR PLAINTIFF PHILIP RESTIVO "4 Case No. 17CV308469

weer RCTS
Defendants’ motion is DENIED. The court finds the defendants retained Michael

Ackerman in 2009 for a limited purpose that resulted in a letter being sent but no litigation.

The amount of time billed was .8 hours. There is a factual dispute in the declarations filed

between the parties. The statement by Mr. Brown that Mr. Ackerman allegedly was to

provide advice to Mr. Restivo and Mr. Brown regarding the asset purchase agreement in

2014 is not credible. The declarations of Greg Carpenter, Philip Restivo and Michael G.

Ackerman directly refute Mr. Brown's statement. The court finds the declarations in

Ackerman more credible and therefore the court finds there was no
support of Mr.

10 substantial relationship between the 2009 engagement and this lawsuit that would support

11 the court granting the motion to disqualify.
12
Mary E. Arand
13
DATED: _ ghc hye
14 THE HONORABLE MARY E. ARAND
Judge of the Superior Court
15
APPROVED AS TO FORM:
16

17 CUMMING & ASSOCIATES, APLC
DATED: January 11, 2018
18
19

20
21
\ uy
WILLIAM R. CUMMING,
22 Attorneys for Defendants ENE aioe
GROUND TRANSPORTATION
23 SOLUTIONS, INC., and JAMES BROWN

24
C:\MyDocs\S.E.G\CrossComplaint.wpd
25
26
27
2
aR ORDER ON MOTION TO DISQUALIFY THE LAW OFFICES
RD
OF MICHAEL G. ACKERMAN AS ATTORNEY OF RECO Case No. 17CV308469
FOR PLAINTIFF PHILIP REST IVO
Wirt

i
IBY NDORSED)
L
AUG 1 0 2017
Clerk of the Court
Superior Court of CA County of Santa Clat ry
—renry Keniston

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA
10
11

12 PHILIP RESTIVO, Case No.: 17-CV-308469
13 Plaintiff,
ORDER RE: DEMURRER
14 VS.

1S
WORLDWIDE GROUND TRANSPORTATION
16 SOLUTIONS, INC., et al.,
17
Defendants.
18
19
20
21 The demurrer filed by defendants Worldwide Ground Transportation Solutions, Inc. and

22 James Brown came on for hearing before the Honorable Mary E. Arand on August 8, 2017, at

9:00 a.m. in Department 9. The matter having been submitted, the Court orders as follows:

24 This is a breach of contract action initiated by plaintiff Philip Restivo (“Plaintiff”) against

25 defendants Worldwide Ground Transportation Solutions, Inc. (“Worldwide”) and James Brown

26 (“Brown”), the principal of Worldwide.

BT According to the allegations of the complaint (“Complaint”), on May 8, 2014, Restivo

28 Enterprises, Inc. (“Restivo Enterprises”) entered into an agreement to sell assets (“Offer and

“ 2
li

ORDER RE: DEMURRER
Agreement to Buy”) and a covenant not to compete (“Non
-Compete Agreement ”). (Complaint,
16.) The parties also executed an addendum to the Offer and Agree
ment to Buy (“Addendum”),
which states Plaintiff, individually, was a beneficiary of the agreem
ents because he was to
provide consulting services to the buyer for a period of 18 months and
personally receive
discount limousine services for the duration of the Non-Compete Agreem
ent. (Ibid.)
A dispute subsequently arose between the parties resulting in them partici
pating in a
mediation on September 17, 2015. (Complaint, 47.) The parties signed
a mediated settlement
agreement (“Settlement Agreement”), by which Brown agreed that Plainti
ff was to receive
discount limousine services pursuant to the Addendum for a value
of no more than $5,000.00 per|
10 month, which sum was to be accumulated and carried over on a month-
to-month basis. (bid.)
11 Thereafter, Plaintiff made repeated requests for discount limousine services
, all of which were
12 declined. (Jbid.) Plaintiff asserts a single cause of action for breach of contract
of the
13 Addendum and Settlement Agreement.!
14 Worldwide and Brown (collectively “Defendants”) presently demur to the
cause of action|
15 for breach of contract on the grounds of uncertainty and failure to state sufficie
nt facts to
16 constitute a cause of action.
17 As to the demurrer on the ground of uncertainty, Defendants contend the claim
is
18 uncertain because Plaintiff fails to specifically allege the identities of the parties
to the four
19 agreements alleged in the Complaint. For instance, Defendants state that
although Plaintiff does
20 indicate Restivo Enterprises entered into the Offer and Agreement to Buy and
the “parties”
21 entered into the Non-Compete Agreement, he fails to explicitly allege with whom
any
22 agreements were entered into.
23 This argument is not well-taken. Uncertainty is a disfavored ground for demurre
r and is
24 typically sustained only where the pleading is so unintelligible and uncertai
n the responding
25 party cannot reasonably respond or recognize the claims against it. (See Khoury
v. Maly’s of
26
27 "In the Complaint, Plaintiff explicitly states the contract at issue is the Settlement Agreemen
t. It appears from the
allegations in the Complaint that the Addendum is at issue as well, and both parties advance
arguments relative to
28 the Addendum in their papers. It is not necess: ary for the Court to determine whether
the Addendum is actually a
subject contract because the arguments advanced b y Defendants as to that agreemen
t are not meritorious in the first
instance.

2
ORDER RE: DEMURRER
Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) The law is settled that “[a] special demurre
r for
uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading
but
is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira
(1950) 100 Cal.App.2d 143, 145-146.)
The fact Plaintiff does not allege the identities of the parties to the four agreements in the
body of the Complaint does not render the pleading unintelligible. As aptly argued by Plaintiff,
he attaches each agreement as an exhibit to the Complaint, all of which clearly state the parties
thereto. As the identities of the parties are stated in the exhibits attached to the pleading, they are
incorporated into the Complaint. (See Del Mar Beach Club Owners Assn. v. Imperial
10 Contracting Co. (1981) 123 Cal.App.3d 898, 908 [stating exhibits incorporated by reference into
1] complaint become part of the allegations].) Consequently, the failure to allege the name of the
12 parties to the four agreements does not make the pleading susceptible to a demurrer for
13 uncertainty.
14 Defendants additionally argue the claim is uncertain because Plaintiff refers to each
15 defendant jointly and does not make clear each defendant’s individual obligations under the
16 terms of the Addendum and Settlement Agreement. In support, Defendants point to the
17 allegation they both failed to provide the discounted limousine services. This argument is not
18 well-taken. There are two Defendants in this action and the Complaint clearly states both are
19 liable for the alleged breach. Further, Plaintiff attaches a copy of the Addendum and Settlement
20 Agreement, both of which clearly reflect each defendant is a party thereto. Therefore,
21 collectively referring to “Defendants” does not render the pleading uncertain.
22 Turning to the demurrer on the ground of failure to state sufficient facts to constitute a
23 cause of action, Defendants argue that Plaintiff cannot bring a claim for breach of contract
24 because he is not a party to or third party beneficiary of the Settlement Agreement or Addendum.

25 Generally a plaintiff must be a signatory to a contract or a third party beneficiary in order
26 to state a claim for breach of contract. (Berclain America Latina v. Baan Co. (1999) 74
27 Cal.App.4th 401, 405.) Though neither party addresses this point, the Settlement Agreement

28 explicitly states Plaintiff is a party thereto and he signed it in his individual capacity. There is no

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3

ORDER RE: DEMURRER
mention of Restivo Enterprises anywhere in that agreement. As to the Addendum, Plaintiff
adequately alleges he is a third party beneficiary thereto.
Pursuant to Civil Code section 1559, “[a] contract, made expressly for the benefit of a
third person, may be enforced by him at any time before the parties thereto rescind it.” A third
party’s ability to enforce a contract is “predicated upon the contracting parties’ intent to benefit”
him or her. (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 524.) “Ascertaining this intent is a
question of ordinary contract interpretation. Thus, ‘[t]he circumstance that a literal contract
interpretation would result in a benefit to the third party is not enough to entitle that party to
demand enforcement.’” (Jbid., citations omitted.) “Because third party beneficiary status is a
10 matter of contract interpretation, a person seeking to enforce a contract as a third party
11 beneficiary ‘must plead a contract which was made expressly for his [or her] benefit and one in
12 which it clearly appears that he [or she] was a beneficiary.” [{] ‘Expressly,” [as used in the
13 Statute and case law,] means ‘in an express manner; in direct or unmistakable terms; explicitly;
14 definitely; directly.”” (Schauer v. Mandarin Gems of Calif, Inc. (2005) 125 Cal.App.4th 949,

15 957-958 (“Schauer”), internal citations omitted, italics added.) “The test for determining
16 whether a contract was made for the benefit of a third person is whether an intent to benefit a
7 third person appears from the terms of the contract. If the terms of the contract necessarily
18 require the promisor to confer a benefit on a third person, then the contract, and hence the parties
19 thereto, contemplate a benefit to the third person.”” (Prouty v. Gores Tech. Group (2004) 121
20 Cal.App.4th 1225, 1232, internal citation omitted.)
21 First, Defendants assert Plaintiff is merely an incidental beneficiary and not a third party
22 beneficiary to the Addendum because it is apparent its “primary purpose” was the sale of assets.
It is not immediately apparent that the primary purpose of the Addendum is the sale of assets.
24 For example, the Addendum addresses in large part Plaintiff's consulting services and
25 entitlement to limousine services. Even assuming the primary purpose were the sale of assets,

26 Defendants provide no legal authority stating the primary purpose of an agreement must be to
27 benefit the purported third party in order for that third party to be a beneficiary. In fact, “[a]
28 person need not be the sole or even the primary beneficiary to be a third party beneficiary.”

ORDER RE: DEMURRER
(Service Employees Inter. Union, Local 99 v, Options--A Child Care and Human Services
Agency (2011) 200 Cal.App.4th 869, 878.) Thus, this argument is unsubstantiated.
Defendants also contend the Addendum does not reflect Plaintiff is an intended
beneficiary because he is merely identified as a recipient of limousine services. The Court
disagrees. As aptly argued by Plaintiff, the Addendum clearly reflects a benefit conferred on
him. The Addendum provides Plaintiff was to be paid $5,868.50 each month for 17 months
regardless of the hours of consulting actually provided. (Complaint, Exh. A.) Thus, Plaintiff
was to receive a monthly payment even if he did not consult at all, which would undoubtedly
benefit him. In addition, the Addendum states Worldwide’s vehicles were available for

10 Plaintiff's use. The use of vehicles is an express benefit conferred on Plaintiff and is clearly

a directed to him individually. Plaintiff therefore alleges facts reflecting he is an intended third
12 party beneficiary of the Addendum.
13 Next, Defendants argue that even assuming Plaintiff can enforce the Settlement
14 Agreement or Addendum, the claim fails against Brown individually because he is not a party to
15 them. “Under California law, only a signatory to a contract may be liable for any breach.”
16 (Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 452.) Defendants insist
17 Brown is not a signatory of the Offer and Agreement to Buy, the Addendum, Non-Compete

18 Agreement, or the Settlement Agreement, and all agreements entered into between the parties
19 were meant to be expressly between Worldwide and Restivo Enterprises.
20 In opposition, Plaintiff correctly states Brown is a party to the Settlement Agreement.
21 The Settlement Agreement, attached as Exhibit C to the Complaint, clearly provides “James
22 Brown” is a “party” thereto. The document is also initialed by Brown next to his name.
23 Worldwide is not mentioned anywhere in the Settlement Agreement. Thus, the pleading clearly
24 reflects Brown, individually, is a party and signatory to the Settlement Agreement. (See Del Mar]
25 Beach Club Owners Assn. v. Imperial Contracting Co., supra, 123 Cal.App.3d at p. 908.) As to

26 the Addendum, the contract reflects the “Buyer” is Worldwide and Brown does not appear
27 anywhere therein as an individual party. As such, the pleading does not reflect he is a party to

28 that agreement. With that said, the demurrer would not dispose of the entire cause of action

5
ORDER RE: DEMURRER
since Brown appears to be a party to the Settlement Agreement. A demurrer does not lie to only
a portion of a cause of action. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680,
1682.) Therefore, the demurrer is not sustainable.

Accordingly, the demurrer to the first cause of action on the grounds of failure to state
sufficient facts to constitute a cause of action and uncertainty is OVERRULED.

Mary E. Arand
10 Date: AUG 0 8 2017 Mary E. Arand
11 Judge of the Superior Court
12

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ORDER RE: DEMURRER
ELE TS
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
DOWNTOWN COURTHOUSE
191 NORTH First STREET
San JOSE, CALIFORNIA 95113
aus CIVIL DIVISION

August 10, 2017

Michael G. Ackerman
2391 The Alameda Ste 100
Santa Clara CA 95050

RE: Philip Restivo vs Worldwide Ground Transportaion Solutions, inc. et al
Case Number: 17CV308469

PROOF OF SERVICE
ORDER RE: DEMURRER was delivered to the parties listed below the above entitled case as set forth in the
sworn declaration below.

If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the American with
Disabilities Act, please contact the Court Administrator's office at (408) 882-2700, or use the Court's TDD line (408) 882-2690 or the
Voice/TDD California Relay Service (800) 735-2922.

DECLARATION OF SERVICE BY MAIL: | declare that | served this notice by enclosing a true copy in a sealed envelope, addressed to
each person whose name is shown below, and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose,
CA on August 10, 2017. CLERK OF THE COURT, by Henry Keniston, Deputy.

ce: William Reid Cumming 3080 Bristol St Ste 630 Costa Mesa CA 92626

CW-9027 REV 12/08/16 PROOF OF SERVICE

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Sunil R. Kulkarni Track Judge’s New Case

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Document Filed Date

December 21, 2018

Case Filing Date

April 12, 2017

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Request,Application: Philip Restivo vs Worldwide Ground Transportation Solutions, Inc. at el

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