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1 DAVID P. NEMECEK, JR. (State Bar No. 194402)
david@fortress-law.com
2 THE FORTRESS LAW FIRM, INC.
50 California Street, Suite 1500
3 San Francisco, CA 94111 8/28/2020
Telephone: (415) 277-5400
4 Facsimile: (415) 723-7370
Attorneys for Plaintiffs BOOTUP VENTURES, LLC
5 and BOOSTCARE dba BOOTUP WORLD and Cross-
Defendants MARCO TEN VAANHOLT and MUKUL
6 AGARWAL
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF SAN MATEO
9 UNLIMITED JURISDICTION
10
11 BOOTUP VENTURES, LLC and Case No. 18CIV06232
BOOSTCARE dba BOOTUP WORLD,
12 MEMORANDUM OF POINTS AND
Plaintiffs, AUTHORITIES IN SUPPORT OF MOTION
13 FOR SUMMARY JUDGMENT OR, IN THE
v. ALTERNATIVE, SUMMARY
14 ADJUDICATION BY CROSS-DEFENDANTS
TARUN GAUR, TRINGAPPS INC., BOOSTCARE DBA BOOTUP WORLD,
15 JINIGRAM, LLC, DIAL2BUY.COM, LLC, MARCO TEN VAANHOLT AND MUKUL
RAVI KUMAR aka SHAWN KUMAR and AGARWAL AND MOTION FOR SUMMARY
16 DOES 1-20, ADJUDICATION BY BOOTUP VENTURES,
LLC AS TO CROSS-COMPLAINT FILED BY
17 Defendants. TARUN GAUR, JINIGRAM, LLC AND
DIAL2BUY.COM LLC
18
Date: November 13, 2020
19 Time: 1:30 p.m.
Dept.: Law and Motion
20
Action Filed: November 19, 2018
21 Trial Date: December 14, 2020
22 AND RELATED CROSS-COMPLAINT.
23
24 I. INTRODUCTION
25 This case is a straightforward action to enforce a contract for services in exchange for a
26 grant of equity in two limited liability companies. After the Defendants failed to comply with the
27 terms of that contract and litigation ensued, they retaliated by filing what can best be described as
28 a “defensive cross-complaint” in which they make the fantastical claims that they suffered over
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT
1
$1 million in damages as a result of the breach of that agreement and alleged fraud committed by
2
the Cross-Defendants.
3
Plaintiff and Cross-Defendant BootUp Ventures, LLC served comprehensive discovery
4
upon the Cross-Complainants on April 29, 2020 consisting of requests for production, contention
5
interrogatories, requests for admission and form interrogatories. Cross-Complainants served
6
nothing but objections and did not produce any documents in response to those discovery
7
requests. Cross-Complainants served supplemental responses to the form interrogatories
8
propounded by BootUp Ventures a day ago, but those responses are devoid of any facts
9
concerning the issues presented by this motion.
10
The failure by Cross-Complainants to respond to the comprehensive discovery
11
propounded by BootUp Ventures makes it clear that they have no evidence to support the claims
12
alleged in the Cross-Complaint. They have no evidence to show that they suffered any damages
13
as a result of any acts that were allegedly committed by the Cross-Defendants. And they have no
14
evidence to support their claim that BootUp World, Marco ten Vaanholt and Mukul Agarwal are
15
the alter egos of BootUp Ventures.
16
The Court should grant summary judgment and dismiss all of the claims alleged in the
17
Cross-Complaint against BootUp World, Marco ten Vaanholt and Mukul Agarwal. The Court
18
should also summarily adjudicate all of the claims for breach of contract and fraud that are
19
alleged against BootUp Ventures. Cross-Complainants have no evidence to support those claims.
20
II. FACTUAL AND PROCEDURAL BACKGROUND
21
Plaintiff and Cross-Defendant BootUp Ventures, LLC (“BootUp Ventures”) served as a
22
fund, co-working space and accelerator for startups and early stage technology companies. (U.F.,
23
No. 1.1) BootUp Ventures provided its clients with office space as well as access to its network
24
of entrepreneurs, investors and innovators and mentoring in order to promote growth and
25
innovation by its clients. (U.F., No. 2.) Plaintiff and Cross-Defendant Boostcare dba BootUp
26
1
For purposes of this Memorandum, “U.F.” refers to the uncontested facts listed in Cross-Defendants’ Separate
27 Statement of Undisputed Facts in Support of this Motion.
28
2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT
1
World (“BootUp World”) is an affiliate of BootUp Ventures and serves as the lessor of office
2
space in the commercial office building that serves as the headquarters of BootUp Ventures in
3
Menlo Park, California. (U.F., No. 3.)
4
On or about November 1, 2016, BootUp Ventures and Defendant and Cross-Complainant
5
Tarun Gaur entered into a Memorandum of Understanding (MOU). (U.F., No. 4.) Pursuant to
6
paragraph 4.1 of the MOU, BootUp Ventures agreed to act as an advisor on the board of directors
7
for certain startup companies that are owned and controlled by Gaur – namely, Jinigram and
8
Dial2Buy.com. (U.F., No. 5.)
9
BootUp Ventures agreed to provide advisory services, assist with fundraising and provide
10
discounted office space for Jinigram and Dial2Buy.com pursuant to paragraph 4.1 of the MOU.
11
(U.F., No. 6.) Pursuant to paragraphs 4.2 and 4.3 of the MOU, Gaur agreed to cause Jinigram and
12
Dial2Buy.com to issue warrants with an expiration date of ten years from the date they were
13
issued granting BootUp Ventures the right to purchase equity representing twenty percent of the
14
fully-diluted capitalization of each of those companies immediately upon the execution of the
15
MOU in exchange for the services to be rendered by BootUp Ventures that are described above.
16
(U.F., No. 7.) Jinigram and Dial2Buy.com did not issue the warrants to BootUp Ventures that are
17
described in paragraphs 4.2 and 4.3 of the MOU. (U.F., No. 8.)
18
Paragraph 4.4 of the MOU provides that Gaur shall cause Jinigram and Dial2Buy.com to
19
issue equity to BootUp Ventures representing twenty percent of the fully-diluted capitalization of
20
those companies that would vest in equal installments every month for twenty-four months
21
beginning on the effective date of the MOU. (U.F., No. 9.) Jinigram and Dial2Buy.com have not
22
issued any equity to BootUp Ventures pursuant to paragraph 4.4 of the MOU. (U.F., No. 10.)
23
Plaintiffs BootUp Ventures and BootUp World filed the Complaint in this matter on
24
November 13, 2018 against Gaur, Jinigram and Dial2buy.com. Plaintiffs were granted leave to
25
amend to file a First Amended Complaint, which they filed on November 7, 2019. The First
26
Amended Complaint includes causes of action for Breach of Fiduciary Duty by BootUp Ventures
27
against Gaur, Account Stated, Open Book Account, Unjust Enrichment and for Specific
28
3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT
1
Performance to compel the transfer of the warrants and equity owed by Jinigram and
2
Dial2buy.com to BootUp Ventures.
3
B. THE ALLEGATIONS OF THE CROSS-COMPLAINT
4
On March 7, 2019, Cross-Complainants filed a Cross-Complaint in this matter against
5
BootUp Ventures, BootUp World, Marco ten Vaanholt, Mukul Agarwal and Andreas Birnik.
6
(U.F., No. 11.) The Cross-Complaint alleges that each of the Cross-Defendants are the alter egos
7
of one another. (U.F., No. 12.)
8
The Cross-Complaint alleges that Gaur “was looking for start up capital and know how”
9
for Jinigram and Dial2buy.com from a startup accelerator and was introduced to BootUp
10
Ventures for that purpose. (U.F., No. 13.) The Cross-Complaint further alleges that Gaur was
11
“specifically directed” to the website and Facebook page for BootUp Ventures “as proof of [the]
12
credentials” of Agarwal and ten Vaanholt. (U.F., No 14.) The Cross-Complaint alleges that the
13
website for BootUp Ventures states that it has “accelerated 120+ startups,” “obtained
14
$400,000,000 for those startups” and that the startups “are currently valued at $4 billion. (U.F.,
15
No. 15.) The Cross-Complaint also alleges that the claims referenced directly above on the
16
website for BootUp Ventures were false. (U.F., No. 16.)
17
The Cross-Complaint alleges that Birnik “falsely claimed BootUp’s worldwide reach in
18
Europe, Singapore, and East Asia, and that BootUp had talent and resources throughout the world
19
that would accelerate Gaur’s startups’ growth.” (U.F., No. 17.) The Cross-Complaint alleges that
20
Gaur was persuaded by the Cross-Defendants “that they could provide the business savvy, ready
21
personnel at all levels (sales, support administration), and startup accelerator expertise that Gaur
22
lacked.” (U.F., No. 18.) The Cross-Complaint alleges that Gaur “did not know … that Agarwal
23
and ten Vannholt saw that they could use Gaur as the Cross-defendants’ tool and entrée into
24
bigger things that they had conceived for themselves.” (U.F., No. 19.)
25
The Cross-Complaint alleges that Agarwal and ten Vaanholt “claimed that Bootup has an
26
in-house counsel Capital Procurement are called Bootup Capital,” which was also false. (U.F.,
27
No. 20.) The Cross-Complaint further alleges that BootUp Ventures did not perform any of the
28
4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT
1
services it promised to perform pursuant to paragraph 4.1 of the MOU, including serving as
2
advisors on the board of directors of Jinigram and Dial2buy.com, assisting in developing a
3
product and engineering strategy, assisting with the cultivation of business, market or industry
4
trend information, providing “counsel,” making introductions to eCommerce experts, building
5
product roadmaps, making introductions to venture capitalists, building “governance framework,”
6
developing cost structures, assisting Gaur with finding funding, helping with “team building” or
7
providing office space. (U.F., No. 21.)
8
The first cause of action for Rescission that is alleged in the Cross-Complaint alleges that
9
Cross-Complainants are entitled to rescind the MOU because of the “fraud and deceit” committed
10
by the Cross-Defendants. (U.F., No. 22.) Cross-Complainants allege in their first cause of action
11
for Rescission that they suffered damages exceeding $1,000,000 “as a direct, proximate and
12
foreseeable consequence of Cross-defendants’ misrepresentations.” (U.F., No. 23)
13
Cross-Complainants’ second cause of action for Declaratory Relief in the Cross-
14
Complaint seeks a declaration that: (1) the MOU “should be rescinded”; (2) the parties never
15
created a Bootup IOT Accelerator pursuant to section 5.1 of the MOU; and (3) that “the parties
16
never created any Bootup branded co-working spaces in India” or in any other parts of the world
17
pursuant to section 6.1 of the MOU. (U.F., No. 24.)
18
Cross-Complainants’ third cause of action for Fraud in the Inducement alleges that Cross-
19
Complainants suffered damages exceeding $1,000,000 as a result of the allegedly fraudulent
20
misrepresentations made by Cross-Defendants. (U.F., No. 25.) Cross-Complainants’ fourth
21
cause of action for Promissory Fraud alleges that they suffered damages exceeding $1,000,000 as
22
a result of their reliance upon promises made by Cross-Defendants that they had no intention of
23
keeping. (U.F., No. 26.)
24
Cross-Complainants’ fifth cause of action for breach of contract alleges that Cross-
25
Complainants suffered damages exceeding $1,000,000 as a result of Cross-Defendants’ breach of
26
section 4.1 of the MOU. (U.F., No. 27.) Cross-Complainants’ sixth cause of action for breach of
27
contract alleges that Cross-Complainants suffered damages exceeding $1,000,000 as a result of
28
5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT
1
Cross-Defendants’ breach of section 5.1 of the MOU. (U.F., No. 28.) Cross-Complainants’
2
seventh cause of action for breach of contract alleges that Cross-Complainants suffered damages
3
exceeding $1,000,000 as a result of Cross-Defendants’ breach of section 6 of the MOU. (U.F.,
4
No. 29.)
5
C. PROCEDURAL HISTORY
6
On May 13, 2019, Cross-Defendants filed a Motion to Strike certain provisions of the
7
Cross-Complaint. On July 24, 2019, this Court granted that motion in part and struck the prayer
8
9 for relief for restitution in paragraph one of the prayer for relief in the Cross-Complaint on the
10 grounds that the Cross-Complaint fails to allege that Cross-Complainants paid any money to
11 Cross-Defendants and fails to identify any “thing” or “benefit” that Cross-Complainants bestowed
12
upon Cross-Defendants that could conceivably be returned to them, and are therefore not entitled
13
to restitution.
14
On January 29, 2020, Cross-Complainants filed a request for dismissal of Andreas Birnik
15
16 without prejudice.
17 D. CROSS-COMPLAINANTS REFUSE TO RESPOND TO
COMPREHENSIVE DISCOVERY REQUESTS SERVED BY CROSS-
18 DEFENDANTS
19 On April 29, 2020, BootUp Ventures propounded comprehensive discovery requests
20
consisting of Requests for Production, Special Interrogatories, Form Interrogatories and Requests
21
for Admission upon each Cross-Complainant. (U.F., No. 30.) The Requests for Production
22
propounded by BootUp Ventures request all documents that support Cross-Complainants’ claims
23
24 for the damages they allegedly suffered. (U.F., No. 31.) The Requests for Production
25 propounded by BootUp Ventures also request all documents that support each cause of action that
26 is alleged in the Cross-Complainant. (U.F., No. 32.) Cross-Complainants served nothing but
27
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT
1 objections and did not produce any documents in response to the Requests for Production
2 propounded by BootUp Ventures. (U.F., No. 33.)
3
The Special Interrogatories propounded by BootUp Ventures request that the Cross-
4
Complainants state all facts that support their claims that each of the Cross-Defendants is the alter
5
ego of the other, identify all documents that support those claims and identify all persons with
6
7 knowledge that support those claims. (U.F., No. 34.) The Special Interrogatories propounded by
8 BootUp Ventures also request that the Cross-Complainants provide a detailed calculation of the
9 damages they claim to have suffered that are described in their Cross-Complaint on their third,
10
fourth, fifth, sixth and seventh causes of action and identify all documents and persons with
11
knowledge that support those calculations. (U.F., No. 35.) Cross-Complainants served nothing
12
but objections in response to the Special Interrogatories propounded by BootUp Ventures. (U.F.,
13
No. 36.)
14
15 The Requests for Admission propounded by BootUp Ventures request that the Cross-
16 Complainants admit that they suffered no damages as a result of any acts committed by each
17 Cross-Defendant that are alleged in the Cross-Complaint. (U.F., No. 37.) The Requests for
18
Admission propounded by BootUp Ventures request that the Cross-Complainants admit that each
19
of the Cross-Defendants did not cause any of the damages they claim to have suffered that are
20
alleged in the Cross-Complaint. (U.F., No. 38.) The Requests for Admission propounded by
21
22 BootUp Ventures request that the Cross-Complainants admit that each of the Cross-Defendants is
23 not the alter ego of the other Cross-Defendants. (U.F., No. 39.) Cross-Complainants served
24 nothing but objections in response to the Requests for Admission propounded by BootUp
25 Ventures. (U.F., No. 40.)
26
BootUp Ventures propounded Form Interrogatory 17.1 upon each Cross-Complainant.
27
(U.F., No. 41.) Cross-Complainants initially served nothing but objections in response to the
28
7
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT
1 Form Interrogatories propounded by BootUp Ventures. (U.F., No. 42.) On August 27, 2020,
2 Cross-Complainants served supplemental responses to the Form Interrogatories propounded by
3
BootUp Ventures. Cross-Complainants refused to respond to Form Interrogatory No. 17.1 in the
4
supplemental responses they served. (U.F., No. 43.)
5
III. THE UNDISPUTED FACTS SHOW THAT BOOTUP WORLD, MARCO TEN
6 VAANHOLT AND MUKUL AGARWAL ARE ENTITLED TO SUMMARY
7 JUDGMENT ON ALL OF THE CLAIMS ALLEGED AGAINST THEM IN THE
CROSS-COMPLAINT AND THE COURT SHOULD GRANT THIS MOTION
8
“The purpose of the law of summary judgment is to provide courts with a mechanism to
9
cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is
10
in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 855
11
(2001). A motion for summary judgment is properly granted where the “affidavits, declarations,
12
admissions, answers to interrogatories, depositions and matters of which judicial notice … may
13
be taken” in support of an in opposition to the motion “show that there is no triable issue as to any
14
material fact and that the moving party is entitled to a judgment as a matter of law.” Code Civ.
15
Proc. § 437c, subds. (b) and (c).
16
A “moving defendant may rely on factually devoid discovery responses to shift the burden
17
of proof pursuant to Code of Civil Procedure section 437c, subdivision (o)(2).” Union Bank v.
18
Superior Court (1995) 31 Cal.App.4th 573, 590; see also Andrews v. Foster Wheeler (2006) 138
19
Cal.App.4th 96, 101 (“[c]ircumstantial evidence supporting a defendant’s motion for summary
20
judgment can consist of factually devoid discovery responses from which an absence of evidence
21
can be inferred.”). The moving party also may produce direct or substantial evidence showing
22
that the plaintiff does not have, and cannot reasonably obtain, evidence to support a prima facie
23
case.” Aguilar, 25 Cal.4th at 854. In Union Bank, the court held that the plaintiff’s responses to
24
form interrogatory no. 17.1 were factually devoid, which shifted the burden of proof in
25
connection with summary judgment. Union Bank, 31 Cal.App.4th at 581. If the plaintiff fails to
26
make that showing, summary judgment “shall be granted.” Code Civ. Proc. § 437c(c).
27
Once the defendant meets its burden, the burden shifts to the plaintiff to show that a
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT
1
triable issue of fact remains. Aguilar, 25 Cal.4th 826, 844. “There is a genuine issue of material
2
fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact
3
in favor of the party opposing the motion in accordance with the applicable standard of proof.”
4
Id. at 845. “If the plaintiff fails to set forth specific facts showing a triable issue of material fact
5
as to that cause of action or defense, summary judgment must be granted.” Wagner v. Glendale
6
Adventist Med. Ctr. 216 Cal.App.3d 1379, 1385 (1989).
7
“The plaintiff … may not rely upon mere allegations or denials of its pleadings to show
8
that a triable issue of material fact exists, but, instead, shall set forth the specific facts showing the
9
triable issue of material fact exists as to that cause of action or a defense thereto.” Code Civ.
10
Proc. § 437c(p)(2); see also Aguilar, 25 Cal.4th at 849. “It is not enough to produce just some
11
evidence. The evidence must be of sufficient quality to allow the trier of fact to find the
12
underlying fact in favor of the party opposing the motion for summary judgment.” Andrews v.
13
Foster Wheeler LLC, 138 Cal.App.4th 96, 108 (2006).
14
“When discovery, properly used, makes it ‘perfectly plain that there is no substantial issue
15
to be tried’ … section 437c, Code of Civil Procedure, is available for prompt disposition of the
16
case.” D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.
17
Code of Civil Procedure section 437c(f)(1) permits a party to move for summary
18
adjudication as to a single cause of action. A motion for summary adjudication “shall proceed in
19
all procedural respects as a motion for summary judgment.” Code Civ. Proc. § 437c(f)(2).
20
A. THE COURT SHOULD SUMMARILY ADJUDICATE CROSS-
21 COMPLAINANTS’ CLAIM FOR RESCISSION AGAINST BOOTUP
22 WORLD, MARCO TEN VAANHOLT AND MUKUL AGARWAL
A claim for rescission of a contract is governed by Civil Code section 1692. A party to a
23
contract seeking rescission may only allege that claim against any other party to the contract.
24
Civ. Code § 1692.
25
The only contract at issue in this case is the MOU, and the only parties to the MOU are
26
BootUp Ventures and Tarun Gaur. BootUp World, Marco ten Vaanholt and Mukul Agarwal are
27
not parties to that contract. Cross-Complainants cannot bring a claim against BootUp World, ten
28
9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT
1
Vaanholt and Agarwal for rescission of the MOU as a result. In addition, Jinigram and
2
Dial2buy.com lack standing to bring claims for rescission of the MOU because they are not
3
parties to that contract.
4
Counsel for Cross-Defendants has not located a single case in which the alter ego of a
5
party to a contact was held liable on a claim for rescission. In any event, Cross-Complainants
6
have no evidence to support the allegations in the Cross-Complaint that BootUp World, ten
7
Vaanholt and Agarwal are the alter egos of BootUp Ventures.
8
Finally, while it is true that an aggrieved party may recover damages on a claim for
9
rescission, Cross-Complainants have no evidence to support any of their claims for damages in
10
this matter. The Court should grant this motion and dismiss the claim for Rescission that is
11
alleged in the Cross-Complainant against BootUp World, ten Vaanholt and Agarwal.
12
B. THE COURT SHOULD SUMMARILY ADJUDICATE ALL OF CROSS-
13 COMPLAINANTS’ CLAIMS FOR BREACH OF CONTRACT
14 The elements of a claim for breach of contract are: (1) the existence of a valid contract; (2)
15 the performance of the contract or excuse for nonperformance; (3) the defendant’s breach; and (4)
16 damages proximately caused by the breach. Troyk v. Farmers Group, Inc. (2009) 171
17 Cal.App.4th 1305, 1352. The undisputed facts show that Cross-Complainants have no evidence to
18 show that they suffered any damages as a result of any acts allegedly taken by any of the Cross-
19 Defendants that are alleged in the Cross-Complaint. Cross-Complainants therefore cannot prove
20 an essential element of their claims for breach of contract.
21 In addition – and as discussed above – the only Cross-Defendant that is a party to the only
22 contract at issue in this matter is BootUp Ventures. BootUp World, Marco ten Vaanholt and
23 Mukul Agarwal are not parties to that contract and Cross-Complainants have no evidence to show
24 that they are the alter ego of BootUp Ventures.
25 The Court should summarily adjudicate all of the claims for breach of contract that are
26 alleged in the Cross-Complaint and dismiss those claims in their entirety.
27
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT
1 C. THE COURT SHOULD SUMMARILY ADJUDICATE ALL OF CROSS-
COMPLAINANTS’ CLAIMS FOR FRAUD
2
The elements of a claim for fraud are: (1) a knowingly false statement by the defendant;
3
(2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4)
4
resulting damages. Service by Medallion, Inc. v. Clorox (1996) 44 Cal.App.4th 1807, 1816. The
5
elements of a claim for promissory fraud are: (1) a representation by the defendant of the intent to
6
perform some future action; (2) the falsity of the promise by the defendant to perform; (3)
7
damage caused to the plaintiff as a result of taking some detrimental action in reliance upon the
8
defendant’s promise. Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1062.
9
As discussed above, Cross-Complainants have no evidence to support any claim for
10
damages in this matter and they have no evidence to show that any of the Cross-Defendants
11
caused them to suffer the harm they complain of. The Court should therefore summarily
12
adjudicate all of their claims for fraud.
13
14 D. THE COURT SHOULD SUMMARILY ADJUDICATE CROSS-
COMPLAINANTS’ CLAIM FOR DECLARATORY RELIEF AGAINST
15 BOOTUP WORLD, MARCO TEN VAANHOLT AND MUKUL AGARWAL
16 In order for a plaintiff to be entitled to declaratory relief, there must be a real dispute
17 between the parties involving justiciable questions relating to their rights and obligations.
18 Taxpayers for Improving Safety v. Schwarzenegger (2009) 172 Cal.App.4th 749. A claim for
19 declaratory relief is defective if the complaint fails to allege the existence of an actual or present
20 controversy between the parties. Code Civ. Proc. § 1060; Lee v. Silvera (2016) 6 Cal.App.4th
21 527. The court may also dismiss a claim for declaratory relief if it determines that a judicial
22 declaration is not “necessary or proper at the time under all the circumstances.” Gilb v. Chiang
23 (2010) 186 Cal.App.4th 444, 458; DeLaura v. Beckett (2006) 137 Cal.App.4th 542, 545.
24 In addition, declaratory relief operates prospectively rather than to address past wrongs.
25 Gafcon v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1403. For instance, a party may
26 obtain a declaration of its rights under an agreement in order to avoid breaching the terms of the
27 agreement in the future. See Tolle v. Struve (1932) 124 Cal.App. 263.
28 Cross-Complainants’ claim for declaratory relief seeks a declaration from this Court that:
11
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT
1
(1) the MOU “should be rescinded”; (2) the parties never created a Bootup IOT Accelerator
2
pursuant to section 5.1 of the MOU; and (3) that “the parties never created any Bootup branded
3
co-working spaces in India” or in any other parts of the world pursuant to section 6.1 of the
4
MOU. Cross-Complainants’ claim for Declaratory Relief is alleged against all Cross-Defendants,
5
but there is no actual and present controversy between Cross-Complainants and BootUp World,
6
ten Vaanholt and Agarwal concerning any of the three issues that form the basis for the claim for
7
Declaratory Relief for the reasons set forth above.
8
Specifically, there is no actual and present controversy between Cross-Complainants and
9
BootUp World, ten Vaanholt and Agarwal concerning any issues relating to the MOU because
10
they are not parties to that agreement, they are not the alter egos of BootUp Ventures and Cross-
11
Complainants did not suffer any damages relating to any actions they allegedly took concerning
12
the MOU.
13
Finally, the declaratory relief Cross-Complainants seek concerns alleged past wrongs and
14
is therefore improper. The first prong of Cross-Complainants’ request for declaratory relief is
15
duplicative of their claim for rescission. The second and third prongs concern events that
16
occurred in the past and are duplicative of two of their claims for breach of contract. Cross-
17
Complainants’ request for declaratory relief is therefore improper.
18
The Court should therefore summarily adjudicate the Cross-Complainants’ claim for
19
declaratory relief and enter judgment in favor of BootUp World, ten Vaanholt and Agarwal.
20
IV. CONCLUSION
21
None of the claims alleged in the Cross-Complaint against BootUp World, Marco ten
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT
1 Dated: August 28, 2020 THE FORTRESS LAW FIRM, INC.
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5 DAVID P. NEMECEK, JR.
Attorneys for Plaintiffs and Cross-Defendants BOOTUP
6 VENTURES, LLC and BOOSTCARE dba BOOTUP
WORLD and Cross-Defendants MARCO TEN
7 VAANHOLT and MUKUL AGARWAL
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT
Preview
1 DAVID P. NEMECEK, JR. (State Bar No. 194402) david@fortress-law.com 2 THE FORTRESS LAW FIRM, INC. 50 California Street, Suite 1500 3 San Francisco, CA 94111 8/28/2020 Telephone: (415) 277-5400 4 Facsimile: (415) 723-7370 Attorneys for Plaintiffs BOOTUP VENTURES, LLC 5 and BOOSTCARE dba BOOTUP WORLD and Cross- Defendants MARCO TEN VAANHOLT and MUKUL 6 AGARWAL 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF SAN MATEO 9 UNLIMITED JURISDICTION 10 11 BOOTUP VENTURES, LLC and Case No. 18CIV06232 BOOSTCARE dba BOOTUP WORLD, 12 MEMORANDUM OF POINTS AND Plaintiffs, AUTHORITIES IN SUPPORT OF MOTION 13 FOR SUMMARY JUDGMENT OR, IN THE v. ALTERNATIVE, SUMMARY 14 ADJUDICATION BY CROSS-DEFENDANTS TARUN GAUR, TRINGAPPS INC., BOOSTCARE DBA BOOTUP WORLD, 15 JINIGRAM, LLC, DIAL2BUY.COM, LLC, MARCO TEN VAANHOLT AND MUKUL RAVI KUMAR aka SHAWN KUMAR and AGARWAL AND MOTION FOR SUMMARY 16 DOES 1-20, ADJUDICATION BY BOOTUP VENTURES, LLC AS TO CROSS-COMPLAINT FILED BY 17 Defendants. TARUN GAUR, JINIGRAM, LLC AND DIAL2BUY.COM LLC 18 Date: November 13, 2020 19 Time: 1:30 p.m. Dept.: Law and Motion 20 Action Filed: November 19, 2018 21 Trial Date: December 14, 2020 22 AND RELATED CROSS-COMPLAINT. 23 24 I. INTRODUCTION 25 This case is a straightforward action to enforce a contract for services in exchange for a 26 grant of equity in two limited liability companies. After the Defendants failed to comply with the 27 terms of that contract and litigation ensued, they retaliated by filing what can best be described as 28 a “defensive cross-complaint” in which they make the fantastical claims that they suffered over MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT 1 $1 million in damages as a result of the breach of that agreement and alleged fraud committed by 2 the Cross-Defendants. 3 Plaintiff and Cross-Defendant BootUp Ventures, LLC served comprehensive discovery 4 upon the Cross-Complainants on April 29, 2020 consisting of requests for production, contention 5 interrogatories, requests for admission and form interrogatories. Cross-Complainants served 6 nothing but objections and did not produce any documents in response to those discovery 7 requests. Cross-Complainants served supplemental responses to the form interrogatories 8 propounded by BootUp Ventures a day ago, but those responses are devoid of any facts 9 concerning the issues presented by this motion. 10 The failure by Cross-Complainants to respond to the comprehensive discovery 11 propounded by BootUp Ventures makes it clear that they have no evidence to support the claims 12 alleged in the Cross-Complaint. They have no evidence to show that they suffered any damages 13 as a result of any acts that were allegedly committed by the Cross-Defendants. And they have no 14 evidence to support their claim that BootUp World, Marco ten Vaanholt and Mukul Agarwal are 15 the alter egos of BootUp Ventures. 16 The Court should grant summary judgment and dismiss all of the claims alleged in the 17 Cross-Complaint against BootUp World, Marco ten Vaanholt and Mukul Agarwal. The Court 18 should also summarily adjudicate all of the claims for breach of contract and fraud that are 19 alleged against BootUp Ventures. Cross-Complainants have no evidence to support those claims. 20 II. FACTUAL AND PROCEDURAL BACKGROUND 21 Plaintiff and Cross-Defendant BootUp Ventures, LLC (“BootUp Ventures”) served as a 22 fund, co-working space and accelerator for startups and early stage technology companies. (U.F., 23 No. 1.1) BootUp Ventures provided its clients with office space as well as access to its network 24 of entrepreneurs, investors and innovators and mentoring in order to promote growth and 25 innovation by its clients. (U.F., No. 2.) Plaintiff and Cross-Defendant Boostcare dba BootUp 26 1 For purposes of this Memorandum, “U.F.” refers to the uncontested facts listed in Cross-Defendants’ Separate 27 Statement of Undisputed Facts in Support of this Motion. 28 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT 1 World (“BootUp World”) is an affiliate of BootUp Ventures and serves as the lessor of office 2 space in the commercial office building that serves as the headquarters of BootUp Ventures in 3 Menlo Park, California. (U.F., No. 3.) 4 On or about November 1, 2016, BootUp Ventures and Defendant and Cross-Complainant 5 Tarun Gaur entered into a Memorandum of Understanding (MOU). (U.F., No. 4.) Pursuant to 6 paragraph 4.1 of the MOU, BootUp Ventures agreed to act as an advisor on the board of directors 7 for certain startup companies that are owned and controlled by Gaur – namely, Jinigram and 8 Dial2Buy.com. (U.F., No. 5.) 9 BootUp Ventures agreed to provide advisory services, assist with fundraising and provide 10 discounted office space for Jinigram and Dial2Buy.com pursuant to paragraph 4.1 of the MOU. 11 (U.F., No. 6.) Pursuant to paragraphs 4.2 and 4.3 of the MOU, Gaur agreed to cause Jinigram and 12 Dial2Buy.com to issue warrants with an expiration date of ten years from the date they were 13 issued granting BootUp Ventures the right to purchase equity representing twenty percent of the 14 fully-diluted capitalization of each of those companies immediately upon the execution of the 15 MOU in exchange for the services to be rendered by BootUp Ventures that are described above. 16 (U.F., No. 7.) Jinigram and Dial2Buy.com did not issue the warrants to BootUp Ventures that are 17 described in paragraphs 4.2 and 4.3 of the MOU. (U.F., No. 8.) 18 Paragraph 4.4 of the MOU provides that Gaur shall cause Jinigram and Dial2Buy.com to 19 issue equity to BootUp Ventures representing twenty percent of the fully-diluted capitalization of 20 those companies that would vest in equal installments every month for twenty-four months 21 beginning on the effective date of the MOU. (U.F., No. 9.) Jinigram and Dial2Buy.com have not 22 issued any equity to BootUp Ventures pursuant to paragraph 4.4 of the MOU. (U.F., No. 10.) 23 Plaintiffs BootUp Ventures and BootUp World filed the Complaint in this matter on 24 November 13, 2018 against Gaur, Jinigram and Dial2buy.com. Plaintiffs were granted leave to 25 amend to file a First Amended Complaint, which they filed on November 7, 2019. The First 26 Amended Complaint includes causes of action for Breach of Fiduciary Duty by BootUp Ventures 27 against Gaur, Account Stated, Open Book Account, Unjust Enrichment and for Specific 28 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT 1 Performance to compel the transfer of the warrants and equity owed by Jinigram and 2 Dial2buy.com to BootUp Ventures. 3 B. THE ALLEGATIONS OF THE CROSS-COMPLAINT 4 On March 7, 2019, Cross-Complainants filed a Cross-Complaint in this matter against 5 BootUp Ventures, BootUp World, Marco ten Vaanholt, Mukul Agarwal and Andreas Birnik. 6 (U.F., No. 11.) The Cross-Complaint alleges that each of the Cross-Defendants are the alter egos 7 of one another. (U.F., No. 12.) 8 The Cross-Complaint alleges that Gaur “was looking for start up capital and know how” 9 for Jinigram and Dial2buy.com from a startup accelerator and was introduced to BootUp 10 Ventures for that purpose. (U.F., No. 13.) The Cross-Complaint further alleges that Gaur was 11 “specifically directed” to the website and Facebook page for BootUp Ventures “as proof of [the] 12 credentials” of Agarwal and ten Vaanholt. (U.F., No 14.) The Cross-Complaint alleges that the 13 website for BootUp Ventures states that it has “accelerated 120+ startups,” “obtained 14 $400,000,000 for those startups” and that the startups “are currently valued at $4 billion. (U.F., 15 No. 15.) The Cross-Complaint also alleges that the claims referenced directly above on the 16 website for BootUp Ventures were false. (U.F., No. 16.) 17 The Cross-Complaint alleges that Birnik “falsely claimed BootUp’s worldwide reach in 18 Europe, Singapore, and East Asia, and that BootUp had talent and resources throughout the world 19 that would accelerate Gaur’s startups’ growth.” (U.F., No. 17.) The Cross-Complaint alleges that 20 Gaur was persuaded by the Cross-Defendants “that they could provide the business savvy, ready 21 personnel at all levels (sales, support administration), and startup accelerator expertise that Gaur 22 lacked.” (U.F., No. 18.) The Cross-Complaint alleges that Gaur “did not know … that Agarwal 23 and ten Vannholt saw that they could use Gaur as the Cross-defendants’ tool and entrée into 24 bigger things that they had conceived for themselves.” (U.F., No. 19.) 25 The Cross-Complaint alleges that Agarwal and ten Vaanholt “claimed that Bootup has an 26 in-house counsel Capital Procurement are called Bootup Capital,” which was also false. (U.F., 27 No. 20.) The Cross-Complaint further alleges that BootUp Ventures did not perform any of the 28 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT 1 services it promised to perform pursuant to paragraph 4.1 of the MOU, including serving as 2 advisors on the board of directors of Jinigram and Dial2buy.com, assisting in developing a 3 product and engineering strategy, assisting with the cultivation of business, market or industry 4 trend information, providing “counsel,” making introductions to eCommerce experts, building 5 product roadmaps, making introductions to venture capitalists, building “governance framework,” 6 developing cost structures, assisting Gaur with finding funding, helping with “team building” or 7 providing office space. (U.F., No. 21.) 8 The first cause of action for Rescission that is alleged in the Cross-Complaint alleges that 9 Cross-Complainants are entitled to rescind the MOU because of the “fraud and deceit” committed 10 by the Cross-Defendants. (U.F., No. 22.) Cross-Complainants allege in their first cause of action 11 for Rescission that they suffered damages exceeding $1,000,000 “as a direct, proximate and 12 foreseeable consequence of Cross-defendants’ misrepresentations.” (U.F., No. 23) 13 Cross-Complainants’ second cause of action for Declaratory Relief in the Cross- 14 Complaint seeks a declaration that: (1) the MOU “should be rescinded”; (2) the parties never 15 created a Bootup IOT Accelerator pursuant to section 5.1 of the MOU; and (3) that “the parties 16 never created any Bootup branded co-working spaces in India” or in any other parts of the world 17 pursuant to section 6.1 of the MOU. (U.F., No. 24.) 18 Cross-Complainants’ third cause of action for Fraud in the Inducement alleges that Cross- 19 Complainants suffered damages exceeding $1,000,000 as a result of the allegedly fraudulent 20 misrepresentations made by Cross-Defendants. (U.F., No. 25.) Cross-Complainants’ fourth 21 cause of action for Promissory Fraud alleges that they suffered damages exceeding $1,000,000 as 22 a result of their reliance upon promises made by Cross-Defendants that they had no intention of 23 keeping. (U.F., No. 26.) 24 Cross-Complainants’ fifth cause of action for breach of contract alleges that Cross- 25 Complainants suffered damages exceeding $1,000,000 as a result of Cross-Defendants’ breach of 26 section 4.1 of the MOU. (U.F., No. 27.) Cross-Complainants’ sixth cause of action for breach of 27 contract alleges that Cross-Complainants suffered damages exceeding $1,000,000 as a result of 28 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT 1 Cross-Defendants’ breach of section 5.1 of the MOU. (U.F., No. 28.) Cross-Complainants’ 2 seventh cause of action for breach of contract alleges that Cross-Complainants suffered damages 3 exceeding $1,000,000 as a result of Cross-Defendants’ breach of section 6 of the MOU. (U.F., 4 No. 29.) 5 C. PROCEDURAL HISTORY 6 On May 13, 2019, Cross-Defendants filed a Motion to Strike certain provisions of the 7 Cross-Complaint. On July 24, 2019, this Court granted that motion in part and struck the prayer 8 9 for relief for restitution in paragraph one of the prayer for relief in the Cross-Complaint on the 10 grounds that the Cross-Complaint fails to allege that Cross-Complainants paid any money to 11 Cross-Defendants and fails to identify any “thing” or “benefit” that Cross-Complainants bestowed 12 upon Cross-Defendants that could conceivably be returned to them, and are therefore not entitled 13 to restitution. 14 On January 29, 2020, Cross-Complainants filed a request for dismissal of Andreas Birnik 15 16 without prejudice. 17 D. CROSS-COMPLAINANTS REFUSE TO RESPOND TO COMPREHENSIVE DISCOVERY REQUESTS SERVED BY CROSS- 18 DEFENDANTS 19 On April 29, 2020, BootUp Ventures propounded comprehensive discovery requests 20 consisting of Requests for Production, Special Interrogatories, Form Interrogatories and Requests 21 for Admission upon each Cross-Complainant. (U.F., No. 30.) The Requests for Production 22 propounded by BootUp Ventures request all documents that support Cross-Complainants’ claims 23 24 for the damages they allegedly suffered. (U.F., No. 31.) The Requests for Production 25 propounded by BootUp Ventures also request all documents that support each cause of action that 26 is alleged in the Cross-Complainant. (U.F., No. 32.) Cross-Complainants served nothing but 27 28 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT 1 objections and did not produce any documents in response to the Requests for Production 2 propounded by BootUp Ventures. (U.F., No. 33.) 3 The Special Interrogatories propounded by BootUp Ventures request that the Cross- 4 Complainants state all facts that support their claims that each of the Cross-Defendants is the alter 5 ego of the other, identify all documents that support those claims and identify all persons with 6 7 knowledge that support those claims. (U.F., No. 34.) The Special Interrogatories propounded by 8 BootUp Ventures also request that the Cross-Complainants provide a detailed calculation of the 9 damages they claim to have suffered that are described in their Cross-Complaint on their third, 10 fourth, fifth, sixth and seventh causes of action and identify all documents and persons with 11 knowledge that support those calculations. (U.F., No. 35.) Cross-Complainants served nothing 12 but objections in response to the Special Interrogatories propounded by BootUp Ventures. (U.F., 13 No. 36.) 14 15 The Requests for Admission propounded by BootUp Ventures request that the Cross- 16 Complainants admit that they suffered no damages as a result of any acts committed by each 17 Cross-Defendant that are alleged in the Cross-Complaint. (U.F., No. 37.) The Requests for 18 Admission propounded by BootUp Ventures request that the Cross-Complainants admit that each 19 of the Cross-Defendants did not cause any of the damages they claim to have suffered that are 20 alleged in the Cross-Complaint. (U.F., No. 38.) The Requests for Admission propounded by 21 22 BootUp Ventures request that the Cross-Complainants admit that each of the Cross-Defendants is 23 not the alter ego of the other Cross-Defendants. (U.F., No. 39.) Cross-Complainants served 24 nothing but objections in response to the Requests for Admission propounded by BootUp 25 Ventures. (U.F., No. 40.) 26 BootUp Ventures propounded Form Interrogatory 17.1 upon each Cross-Complainant. 27 (U.F., No. 41.) Cross-Complainants initially served nothing but objections in response to the 28 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT 1 Form Interrogatories propounded by BootUp Ventures. (U.F., No. 42.) On August 27, 2020, 2 Cross-Complainants served supplemental responses to the Form Interrogatories propounded by 3 BootUp Ventures. Cross-Complainants refused to respond to Form Interrogatory No. 17.1 in the 4 supplemental responses they served. (U.F., No. 43.) 5 III. THE UNDISPUTED FACTS SHOW THAT BOOTUP WORLD, MARCO TEN 6 VAANHOLT AND MUKUL AGARWAL ARE ENTITLED TO SUMMARY 7 JUDGMENT ON ALL OF THE CLAIMS ALLEGED AGAINST THEM IN THE CROSS-COMPLAINT AND THE COURT SHOULD GRANT THIS MOTION 8 “The purpose of the law of summary judgment is to provide courts with a mechanism to 9 cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is 10 in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 855 11 (2001). A motion for summary judgment is properly granted where the “affidavits, declarations, 12 admissions, answers to interrogatories, depositions and matters of which judicial notice … may 13 be taken” in support of an in opposition to the motion “show that there is no triable issue as to any 14 material fact and that the moving party is entitled to a judgment as a matter of law.” Code Civ. 15 Proc. § 437c, subds. (b) and (c). 16 A “moving defendant may rely on factually devoid discovery responses to shift the burden 17 of proof pursuant to Code of Civil Procedure section 437c, subdivision (o)(2).” Union Bank v. 18 Superior Court (1995) 31 Cal.App.4th 573, 590; see also Andrews v. Foster Wheeler (2006) 138 19 Cal.App.4th 96, 101 (“[c]ircumstantial evidence supporting a defendant’s motion for summary 20 judgment can consist of factually devoid discovery responses from which an absence of evidence 21 can be inferred.”). The moving party also may produce direct or substantial evidence showing 22 that the plaintiff does not have, and cannot reasonably obtain, evidence to support a prima facie 23 case.” Aguilar, 25 Cal.4th at 854. In Union Bank, the court held that the plaintiff’s responses to 24 form interrogatory no. 17.1 were factually devoid, which shifted the burden of proof in 25 connection with summary judgment. Union Bank, 31 Cal.App.4th at 581. If the plaintiff fails to 26 make that showing, summary judgment “shall be granted.” Code Civ. Proc. § 437c(c). 27 Once the defendant meets its burden, the burden shifts to the plaintiff to show that a 28 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT 1 triable issue of fact remains. Aguilar, 25 Cal.4th 826, 844. “There is a genuine issue of material 2 fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact 3 in favor of the party opposing the motion in accordance with the applicable standard of proof.” 4 Id. at 845. “If the plaintiff fails to set forth specific facts showing a triable issue of material fact 5 as to that cause of action or defense, summary judgment must be granted.” Wagner v. Glendale 6 Adventist Med. Ctr. 216 Cal.App.3d 1379, 1385 (1989). 7 “The plaintiff … may not rely upon mere allegations or denials of its pleadings to show 8 that a triable issue of material fact exists, but, instead, shall set forth the specific facts showing the 9 triable issue of material fact exists as to that cause of action or a defense thereto.” Code Civ. 10 Proc. § 437c(p)(2); see also Aguilar, 25 Cal.4th at 849. “It is not enough to produce just some 11 evidence. The evidence must be of sufficient quality to allow the trier of fact to find the 12 underlying fact in favor of the party opposing the motion for summary judgment.” Andrews v. 13 Foster Wheeler LLC, 138 Cal.App.4th 96, 108 (2006). 14 “When discovery, properly used, makes it ‘perfectly plain that there is no substantial issue 15 to be tried’ … section 437c, Code of Civil Procedure, is available for prompt disposition of the 16 case.” D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21. 17 Code of Civil Procedure section 437c(f)(1) permits a party to move for summary 18 adjudication as to a single cause of action. A motion for summary adjudication “shall proceed in 19 all procedural respects as a motion for summary judgment.” Code Civ. Proc. § 437c(f)(2). 20 A. THE COURT SHOULD SUMMARILY ADJUDICATE CROSS- 21 COMPLAINANTS’ CLAIM FOR RESCISSION AGAINST BOOTUP 22 WORLD, MARCO TEN VAANHOLT AND MUKUL AGARWAL A claim for rescission of a contract is governed by Civil Code section 1692. A party to a 23 contract seeking rescission may only allege that claim against any other party to the contract. 24 Civ. Code § 1692. 25 The only contract at issue in this case is the MOU, and the only parties to the MOU are 26 BootUp Ventures and Tarun Gaur. BootUp World, Marco ten Vaanholt and Mukul Agarwal are 27 not parties to that contract. Cross-Complainants cannot bring a claim against BootUp World, ten 28 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT 1 Vaanholt and Agarwal for rescission of the MOU as a result. In addition, Jinigram and 2 Dial2buy.com lack standing to bring claims for rescission of the MOU because they are not 3 parties to that contract. 4 Counsel for Cross-Defendants has not located a single case in which the alter ego of a 5 party to a contact was held liable on a claim for rescission. In any event, Cross-Complainants 6 have no evidence to support the allegations in the Cross-Complaint that BootUp World, ten 7 Vaanholt and Agarwal are the alter egos of BootUp Ventures. 8 Finally, while it is true that an aggrieved party may recover damages on a claim for 9 rescission, Cross-Complainants have no evidence to support any of their claims for damages in 10 this matter. The Court should grant this motion and dismiss the claim for Rescission that is 11 alleged in the Cross-Complainant against BootUp World, ten Vaanholt and Agarwal. 12 B. THE COURT SHOULD SUMMARILY ADJUDICATE ALL OF CROSS- 13 COMPLAINANTS’ CLAIMS FOR BREACH OF CONTRACT 14 The elements of a claim for breach of contract are: (1) the existence of a valid contract; (2) 15 the performance of the contract or excuse for nonperformance; (3) the defendant’s breach; and (4) 16 damages proximately caused by the breach. Troyk v. Farmers Group, Inc. (2009) 171 17 Cal.App.4th 1305, 1352. The undisputed facts show that Cross-Complainants have no evidence to 18 show that they suffered any damages as a result of any acts allegedly taken by any of the Cross- 19 Defendants that are alleged in the Cross-Complaint. Cross-Complainants therefore cannot prove 20 an essential element of their claims for breach of contract. 21 In addition – and as discussed above – the only Cross-Defendant that is a party to the only 22 contract at issue in this matter is BootUp Ventures. BootUp World, Marco ten Vaanholt and 23 Mukul Agarwal are not parties to that contract and Cross-Complainants have no evidence to show 24 that they are the alter ego of BootUp Ventures. 25 The Court should summarily adjudicate all of the claims for breach of contract that are 26 alleged in the Cross-Complaint and dismiss those claims in their entirety. 27 28 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT 1 C. THE COURT SHOULD SUMMARILY ADJUDICATE ALL OF CROSS- COMPLAINANTS’ CLAIMS FOR FRAUD 2 The elements of a claim for fraud are: (1) a knowingly false statement by the defendant; 3 (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) 4 resulting damages. Service by Medallion, Inc. v. Clorox (1996) 44 Cal.App.4th 1807, 1816. The 5 elements of a claim for promissory fraud are: (1) a representation by the defendant of the intent to 6 perform some future action; (2) the falsity of the promise by the defendant to perform; (3) 7 damage caused to the plaintiff as a result of taking some detrimental action in reliance upon the 8 defendant’s promise. Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1062. 9 As discussed above, Cross-Complainants have no evidence to support any claim for 10 damages in this matter and they have no evidence to show that any of the Cross-Defendants 11 caused them to suffer the harm they complain of. The Court should therefore summarily 12 adjudicate all of their claims for fraud. 13 14 D. THE COURT SHOULD SUMMARILY ADJUDICATE CROSS- COMPLAINANTS’ CLAIM FOR DECLARATORY RELIEF AGAINST 15 BOOTUP WORLD, MARCO TEN VAANHOLT AND MUKUL AGARWAL 16 In order for a plaintiff to be entitled to declaratory relief, there must be a real dispute 17 between the parties involving justiciable questions relating to their rights and obligations. 18 Taxpayers for Improving Safety v. Schwarzenegger (2009) 172 Cal.App.4th 749. A claim for 19 declaratory relief is defective if the complaint fails to allege the existence of an actual or present 20 controversy between the parties. Code Civ. Proc. § 1060; Lee v. Silvera (2016) 6 Cal.App.4th 21 527. The court may also dismiss a claim for declaratory relief if it determines that a judicial 22 declaration is not “necessary or proper at the time under all the circumstances.” Gilb v. Chiang 23 (2010) 186 Cal.App.4th 444, 458; DeLaura v. Beckett (2006) 137 Cal.App.4th 542, 545. 24 In addition, declaratory relief operates prospectively rather than to address past wrongs. 25 Gafcon v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1403. For instance, a party may 26 obtain a declaration of its rights under an agreement in order to avoid breaching the terms of the 27 agreement in the future. See Tolle v. Struve (1932) 124 Cal.App. 263. 28 Cross-Complainants’ claim for declaratory relief seeks a declaration from this Court that: 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT 1 (1) the MOU “should be rescinded”; (2) the parties never created a Bootup IOT Accelerator 2 pursuant to section 5.1 of the MOU; and (3) that “the parties never created any Bootup branded 3 co-working spaces in India” or in any other parts of the world pursuant to section 6.1 of the 4 MOU. Cross-Complainants’ claim for Declaratory Relief is alleged against all Cross-Defendants, 5 but there is no actual and present controversy between Cross-Complainants and BootUp World, 6 ten Vaanholt and Agarwal concerning any of the three issues that form the basis for the claim for 7 Declaratory Relief for the reasons set forth above. 8 Specifically, there is no actual and present controversy between Cross-Complainants and 9 BootUp World, ten Vaanholt and Agarwal concerning any issues relating to the MOU because 10 they are not parties to that agreement, they are not the alter egos of BootUp Ventures and Cross- 11 Complainants did not suffer any damages relating to any actions they allegedly took concerning 12 the MOU. 13 Finally, the declaratory relief Cross-Complainants seek concerns alleged past wrongs and 14 is therefore improper. The first prong of Cross-Complainants’ request for declaratory relief is 15 duplicative of their claim for rescission. The second and third prongs concern events that 16 occurred in the past and are duplicative of two of their claims for breach of contract. Cross- 17 Complainants’ request for declaratory relief is therefore improper. 18 The Court should therefore summarily adjudicate the Cross-Complainants’ claim for 19 declaratory relief and enter judgment in favor of BootUp World, ten Vaanholt and Agarwal. 20 IV. CONCLUSION 21 None of the claims alleged in the Cross-Complaint against BootUp World, Marco ten 22 Vaanholt and Mukul Agarwal are viable. The Court should grant their Motion for Summary 23 Judgment, dismiss them from this action and enter judgment in their favor. In addition, the Court 24 25 should summarily adjudicate all of the claims for breach of contract and fraud that are alleged in 26 the Cross-Complaint against BootUp Ventures. 27 28 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT 1 Dated: August 28, 2020 THE FORTRESS LAW FIRM, INC. 2 3 4 By: 5 DAVID P. NEMECEK, JR. Attorneys for Plaintiffs and Cross-Defendants BOOTUP 6 VENTURES, LLC and BOOSTCARE dba BOOTUP WORLD and Cross-Defendants MARCO TEN 7 VAANHOLT and MUKUL AGARWAL 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND MOTIONS FOR SUMMARY ADJUDICATION AS TO CROSS-COMPLAINT