Preview
ANNE MARIE MURPHY (SBN 202540)
amurphy@cpmlegal.com
N DONALD J. MAGILLIGAN (SBN 257714)
dmagilligan@’cpmlegal.com
COTCHETT, PITRE & MCCARTHY, LLP
San Francisco Airport Office Center
_
F ED
COUNTY
SAN MATEO
840 Malcolm Road
Burlingame, CA 94010 om 1:3 2018
Telephone: (650) 697-6000
Facsimile:
\OOOQONUIAUJ
(650) 697-0577
'
Attorneysfor Plaintiffs and Cross-Defendants
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
'11 IN AND FOR THE COUNTY OF SAN MATEO
12
CHERIF MEDAWAR, an individual; ‘
CASE NO. 16CIV02941
13 MIGSIF, LLC a California Limited
Liability Company; MIGSIF 2, LLC, a PLAINTiFFs’ MOTION FOR DIRECTED
14
California Limited Liability Company; VERDICT (C.C.P. § 630(A))
15
ORIGINAL RESOURCES, INC., a Puerto
Rican Corporation, 4
16 Date: October 18, 201 8
Plaintiffs, Time: 9:00 a.m.
17'
Dept. 25
v.
18
19 NYLE MAMEESH, an individual, NEC
HOLDINGS, a California Limited Liability
20 Company, RAVI ANAND, an individual,
and ANAND & ASSOCIATES, a California
21 Corporation,
22
Defendants.
23
AND ALL RELATED CROSS-ACTIONS
2‘4
25
26
27
28
9 PLAINTIFFS’ MOTION FOR DIRECTED VERDICT (C.C.P. § 630(A)); CASE NO.
LAW OFFICES 16CIV02941
COTCHETT, PITRE 8:
MCCARTHY, LLP
Cherif Medawar; MIGSIF, LLC; MIGSIF 2, LLC; and Original Resources, Inc.
(collectively, “Cross—Defendants”) hereby bring a motion for directed vefdict pursuant to Section
630 o'f the Code of Civil Procedure. Fdr the following reasons, Cross-Defendants respectfully
.pr
ask this court to gram their motion for directed on the following claims:
U1 -
Usury, because ofthe doctrine of equitable estoppel (Evid. Code § 623);
'
-
2470 Broadway, because of the statute of frauds;
-
The Consulting Agreement, because of the statute of‘ limitations;
\OOOQON
-
Negligence, for insufficiefit evidence of the standard of care; and
-
Fraud, for insufficient evidence of intent to deceive.
10
11 I. POINTS AND AUTHORITIES-
12 After all parties have completed their presentation of evidence, any party may move for
13 ah order directing of a verdict in
_ent1fy itsfavor. (Code Civ. Proc. § 63 0(a).) The ruling may be
14 granted as to some, but not all, of the issues invglved in the action. (Id. at subd. (b).) The court
15 has discretion to hear‘the motion at any time before the case is submitted to the jury. (Gibson v.
13-7
l6 Southern Pac. C0. (1955) CA2d 337, 346.)
17 A directed verdict for the plaintiff is proper where “the cause of action alleged in the
18 complaint issupported afid no substantial support is given to the defensé alleged by the “
19 defendant.” (Newing Cheatham (1975) 15'
v. Cal.3d 351, 358—59.)
20 A direéted verdict for. the defense is.
proper only when, “disregarding ‘conflicting evidence
21 and indulging every legitimate inference that may be dram from the evidenCe in plaintiff‘s
22 favor, the trial judge finds no evidence of sufficient subétantiality to sufiport a verdict in favor of
23 the plaintiff.” (Rutter Group, Civil Trials & Evidence, Ch. 12(C)(7)(b)(4), citing-Estate 0f
24 Lances (1932) 216 Cal; 397.)
25 A. Usury Claim
26 Under Evidence Code section 623, ‘fWhenever a party has, by his own statement or
27 conduct, intentionally and deliberately led another to beli/eve a particular thihg true and to act
28
8 PLAINTIFFS’ MOTION FOR DIRECTED VERDICT (C.C.P. § 630(A)); CASE No.
LAW OFFICES
&
COTCI-E'IT, PITRE
160N02941
MCCARTHY, LLP
upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to
-in
contradict it.” “[U]nder proper facts, the defefise of estoppel is applicable to a charge O_fusury
this state.” (Janisse v. Winston Inv. Co. (1957) 154 Ca1.App.2d 580, 587, citing Lindsey v.
Campbell, 132 Ca1.App.2d 746; Martin v. Ajax Construction C0., 124 Ca1.App.2d 425; Marlyn v.
Leslie,
QQUI-b
137 Ca1.App.2d 41; Stock v. Meek, 35 Cal.2d 809.)
Heré, Mr. Mameesh should be estopped from claiming usury because he wrote the
contracts that included the 15% interest rate, he lent his own money t0 the projects at the 15%
interest rate, and there is no evidence that Mr. Medawar intended to violate the prescription on
9 usurious interest rates.
10 B. Broadway Claim is Barred by the Statute of Frauds
11 The undisputed testimony was that there waé no signed agreement regarding the
12 development of 2470 Broadway.
13
The following contracts are invalid, unless they, or some note or memorandum
thereof, are in writing and subscribed by the party to be charged or by the party's
14
agent: [1H (3) An agreement for the leasing for a longer period than one year, or
15 for the sale of real property, or of an interest therein; such an agreement, if made
by an agent of the party sought to be charged, is invalid, unless the authority of
16 the agent is in writing, subscribed by the party sought to be charged.
17
(Cal. Civil Code § 1624(a)(3).)
18
A directed verdict is appropriate for Mr. Mameesh’s claims regarding Broadway
19
for lack of a written agreement.
20
21 C. Causes of action 6 & 7: Consulting Agreement and Profit Sharing Agreement
22 Mr. Mameesh filed his cross-complaint on February 2, 2017. The statute o'f limitations
23 on a breach of contract claim isfour years. (Code Civ. Proc. 337.) Cross-Defendants move for
§
24 a directed verdict as to any claims prior t0 February 2, 2013.
25 D. Cause of action 3: Negligence
26 Mr. Mameesh alleges that Mr. Medawar was negligent. To prove his claim, Mr.
27 Mameesh must prove that Mr. Medawar did something that a reasonably careful person would
28
8 PLAINTIFFS’ MOTION FOR DIRECTED VERDICT (C.C.P. § 630(A)); CASE N0.
LAw OFFICES 16CIV02941
&
COTCHE'IT, PITRE
MCCARTHY, LLP
not do in the same situation or that he failed to do something that Ireasonably careful person
would do. (CACI 401 .) There has been nO‘evidence regarding any negligent conduct by Mr.
Medawar, and there has been to evidence of the applicable standard of care. For those reasons, a
directed verdict is appropriate.
E. Causes of action 1 and 8: Fraud
Mr. Mameesh claims that Mr. Medawar committed fraud. For concealment, Mr.
Mameesh must prove that Mr. Medawar intended to deceive Mr. Mameesh by concealing facts.
Mr. Mameesh must
\OOOQQ
(CACI 1901 .) also prove that he was harmed by the concealment. (Id.)
Both elements are lacking, so a directed verdict is appropriate.
10
11
12 II. CONCLUSION
13 For the foregoing reasons, Plaintiffs respectfully'request this Court to grant their motion
14 for directed verdict.
MA
15
Dated: October lg 201 8 COTCHETT, PITRE & McCARTHY, LLP
16
17
By: I[A \
ANNE M E HY
18 DONAL .M IGAN
19 Attorneysfor Plaintififv and Cross-Defendants
20
21
22
23
24
25
26
27
28
6 PLAINTIFFS’ MOTION FOR DIRECTED VERDICT (C.c.1>. § 630(A)); CASE No.
LAw OFFICES 160N02941
&
COTCHE'IT, PITRE
MCCARTHY, LLP
Preview
ANNE MARIE MURPHY (SBN 202540) amurphy@cpmlegal.com N DONALD J. MAGILLIGAN (SBN 257714) dmagilligan@’cpmlegal.com COTCHETT, PITRE & MCCARTHY, LLP San Francisco Airport Office Center _ F ED COUNTY SAN MATEO 840 Malcolm Road Burlingame, CA 94010 om 1:3 2018 Telephone: (650) 697-6000 Facsimile: \OOOQONUIAUJ (650) 697-0577 ' Attorneysfor Plaintiffs and Cross-Defendants SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 '11 IN AND FOR THE COUNTY OF SAN MATEO 12 CHERIF MEDAWAR, an individual; ‘ CASE NO. 16CIV02941 13 MIGSIF, LLC a California Limited Liability Company; MIGSIF 2, LLC, a PLAINTiFFs’ MOTION FOR DIRECTED 14 California Limited Liability Company; VERDICT (C.C.P. § 630(A)) 15 ORIGINAL RESOURCES, INC., a Puerto Rican Corporation, 4 16 Date: October 18, 201 8 Plaintiffs, Time: 9:00 a.m. 17' Dept. 25 v. 18 19 NYLE MAMEESH, an individual, NEC HOLDINGS, a California Limited Liability 20 Company, RAVI ANAND, an individual, and ANAND & ASSOCIATES, a California 21 Corporation, 22 Defendants. 23 AND ALL RELATED CROSS-ACTIONS 2‘4 25 26 27 28 9 PLAINTIFFS’ MOTION FOR DIRECTED VERDICT (C.C.P. § 630(A)); CASE NO. LAW OFFICES 16CIV02941 COTCHETT, PITRE 8: MCCARTHY, LLP Cherif Medawar; MIGSIF, LLC; MIGSIF 2, LLC; and Original Resources, Inc. (collectively, “Cross—Defendants”) hereby bring a motion for directed vefdict pursuant to Section 630 o'f the Code of Civil Procedure. Fdr the following reasons, Cross-Defendants respectfully .pr ask this court to gram their motion for directed on the following claims: U1 - Usury, because ofthe doctrine of equitable estoppel (Evid. Code § 623); ' - 2470 Broadway, because of the statute of frauds; - The Consulting Agreement, because of the statute of‘ limitations; \OOOQON - Negligence, for insufficiefit evidence of the standard of care; and - Fraud, for insufficient evidence of intent to deceive. 10 11 I. POINTS AND AUTHORITIES- 12 After all parties have completed their presentation of evidence, any party may move for 13 ah order directing of a verdict in _ent1fy itsfavor. (Code Civ. Proc. § 63 0(a).) The ruling may be 14 granted as to some, but not all, of the issues invglved in the action. (Id. at subd. (b).) The court 15 has discretion to hear‘the motion at any time before the case is submitted to the jury. (Gibson v. 13-7 l6 Southern Pac. C0. (1955) CA2d 337, 346.) 17 A directed verdict for the plaintiff is proper where “the cause of action alleged in the 18 complaint issupported afid no substantial support is given to the defensé alleged by the “ 19 defendant.” (Newing Cheatham (1975) 15' v. Cal.3d 351, 358—59.) 20 A direéted verdict for. the defense is. proper only when, “disregarding ‘conflicting evidence 21 and indulging every legitimate inference that may be dram from the evidenCe in plaintiff‘s 22 favor, the trial judge finds no evidence of sufficient subétantiality to sufiport a verdict in favor of 23 the plaintiff.” (Rutter Group, Civil Trials & Evidence, Ch. 12(C)(7)(b)(4), citing-Estate 0f 24 Lances (1932) 216 Cal; 397.) 25 A. Usury Claim 26 Under Evidence Code section 623, ‘fWhenever a party has, by his own statement or 27 conduct, intentionally and deliberately led another to beli/eve a particular thihg true and to act 28 8 PLAINTIFFS’ MOTION FOR DIRECTED VERDICT (C.C.P. § 630(A)); CASE No. LAW OFFICES & COTCI-E'IT, PITRE 160N02941 MCCARTHY, LLP upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to -in contradict it.” “[U]nder proper facts, the defefise of estoppel is applicable to a charge O_fusury this state.” (Janisse v. Winston Inv. Co. (1957) 154 Ca1.App.2d 580, 587, citing Lindsey v. Campbell, 132 Ca1.App.2d 746; Martin v. Ajax Construction C0., 124 Ca1.App.2d 425; Marlyn v. Leslie, QQUI-b 137 Ca1.App.2d 41; Stock v. Meek, 35 Cal.2d 809.) Heré, Mr. Mameesh should be estopped from claiming usury because he wrote the contracts that included the 15% interest rate, he lent his own money t0 the projects at the 15% interest rate, and there is no evidence that Mr. Medawar intended to violate the prescription on 9 usurious interest rates. 10 B. Broadway Claim is Barred by the Statute of Frauds 11 The undisputed testimony was that there waé no signed agreement regarding the 12 development of 2470 Broadway. 13 The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's 14 agent: [1H (3) An agreement for the leasing for a longer period than one year, or 15 for the sale of real property, or of an interest therein; such an agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of 16 the agent is in writing, subscribed by the party sought to be charged. 17 (Cal. Civil Code § 1624(a)(3).) 18 A directed verdict is appropriate for Mr. Mameesh’s claims regarding Broadway 19 for lack of a written agreement. 20 21 C. Causes of action 6 & 7: Consulting Agreement and Profit Sharing Agreement 22 Mr. Mameesh filed his cross-complaint on February 2, 2017. The statute o'f limitations 23 on a breach of contract claim isfour years. (Code Civ. Proc. 337.) Cross-Defendants move for § 24 a directed verdict as to any claims prior t0 February 2, 2013. 25 D. Cause of action 3: Negligence 26 Mr. Mameesh alleges that Mr. Medawar was negligent. To prove his claim, Mr. 27 Mameesh must prove that Mr. Medawar did something that a reasonably careful person would 28 8 PLAINTIFFS’ MOTION FOR DIRECTED VERDICT (C.C.P. § 630(A)); CASE N0. LAw OFFICES 16CIV02941 & COTCHE'IT, PITRE MCCARTHY, LLP not do in the same situation or that he failed to do something that Ireasonably careful person would do. (CACI 401 .) There has been nO‘evidence regarding any negligent conduct by Mr. Medawar, and there has been to evidence of the applicable standard of care. For those reasons, a directed verdict is appropriate. E. Causes of action 1 and 8: Fraud Mr. Mameesh claims that Mr. Medawar committed fraud. For concealment, Mr. Mameesh must prove that Mr. Medawar intended to deceive Mr. Mameesh by concealing facts. Mr. Mameesh must \OOOQQ (CACI 1901 .) also prove that he was harmed by the concealment. (Id.) Both elements are lacking, so a directed verdict is appropriate. 10 11 12 II. CONCLUSION 13 For the foregoing reasons, Plaintiffs respectfully'request this Court to grant their motion 14 for directed verdict. MA 15 Dated: October lg 201 8 COTCHETT, PITRE & McCARTHY, LLP 16 17 By: I[A \ ANNE M E HY 18 DONAL .M IGAN 19 Attorneysfor Plaintififv and Cross-Defendants 20 21 22 23 24 25 26 27 28 6 PLAINTIFFS’ MOTION FOR DIRECTED VERDICT (C.c.1>. § 630(A)); CASE No. LAw OFFICES 160N02941 & COTCHE'IT, PITRE MCCARTHY, LLP