Preview
(SPACE BELOW FOR FILING STAMP ONLY)
ELECTRONICALLY FILED
Superior Court of California
1 FRIEDMAN County of Santa Barbara
FRIEDMAN&
Darrel E. Parker, Executive Officer
LAWYERS
2
9454 WILSHIRE BOULEVARD. SUITE 313 5/21/2018 12:45 PM
BEVERLY HILLS CALIFORNIA 90212-2904 By: Penny Wooff, Deputy
3 TELEPHONE 310.273 flOO
FACSIMILE 310.273.3642
4
5 ATTORNEYS FOR Defendants Catherine Ann Cora, an individual and Cat Cora, Inc.
6 ATTORNEY Qvid Friedman
STATE BAR# 4u4442
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA BARBARA - ANACAPA DIVISION
10
11 JACQUELINE MISHO dba MISHO LAW ) CASE NO. 18CVO1749
GROUP,
12 ) DEFENDANT CATHERINE CORA’S
Plaintiff, ) NOTICE OF MOTION AND MOTION
13 ) TO STRIKE; MEMORANDUM OF
vs. ) POINTS AND AUTHORITIES IN
14 ) SUPPORT
CATHERINE ANN (“CAT’) CORA, CAT
15 CORA INC., and Does 1 Through 25, ) Date: June 20, 2018
Dept.: 6
16 Defendants. ) Time: 9:30 a.m.
Judge: Hon. Pauline Maxwell
17
18
19 TO PLAINTIFF JACQUELINE MISHO dba MISHO LAW GROUP:
20 PLEASE TAKE NOTICE, that on June 20, 2018, at 9:30 am., or as soon as
21 thereafter as the matter may be heard, in Department 6, of the Santa Barbara Superior
22 Court, Anacapa Division, defendant CATHERINE ANN CORA, will move this Court for an
23 order striking specified portions of the pleadings herein.
24 This Motion is brought pursuant to Code of Civil Procedure §436 (a) and (b);
25 Portal Instant Press Inc. vs. Kaswa (2008) 162 Cal. App.4th 1510; and California Rules
26 of Professional Conduct, Rule 3-310(f).
27
I
28
In re the Matter of: SANTA BARBARA SUPERIOR COURT
Plaintiffs: JACQUELINE MISHO, etc. CASE NO. 18CVO1749
vs. Defendant Catherine Ann Cora’s
Defendants: CATHERINE ANN CORA, et al. Motion to Strike
1 The within Motion will be based on this Notice of Motion, Motion to Strike,
2 Memorandum of Points and Authorities, the fileherein, and such other oral and
documentary evidence as may be presented on to this Court.
DATED: May 21, 2018 FRIEDMAN & FRIEDMAN
By
7 DAVID H. FRIEDMAN, Attorneys for
Defendant CATHERINE ANN CORA
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In re the Matter of: SANTA BARBARA SUPERIOR COURT
Plaintiffs: JACQUELINE MISHO, etc. CASE NO. 18CV01749
vs. Defendant Catherine Ann Cora’s
Defendants: CATHERINE ANN CORA, et al. Motion to Strike
1 MOTION TO STRIKE
2
Defendant, Catherine Ann Cora (hereafter referred to as “Cora”), requests this
3
Court to strike paragraph three (3) of the Complaint in its entirety since reverse alter ego
4
is not a recognized theory in California law for this type of action. Additionally, Cora
5
requests that this Court strike paragraph 20 of the Complaint in itsentirety, as the
6
allegations are irrelevant and improper because reverse alter ego theory is not
recognized in California in this type of action.
8
DATED: May21, 2018 FRIEDMAN & FRIEDMAN
By
DAVID H. FRIEDMAN, Attorneys for
12 Defendant CATHERINE ANN CORA
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In re the Matter of: SANTA BARBARA SUPERIOR COURT
Plaintiffs: JACQUELINE MISHO, etc. CASE NO. 18CVO1749
vs. Defendant Catherine Ann cora’s
Defendants: CATHERINE ANN CORA, et al. Motion to Strike
I MEMORANDUM OF POINTS AND AUTHORITIES IN
2 SUPPORT OF MOTION TO STRIKE
The instant mailer is a simple and straightforward attorney and client fee dispute;
however, plaintiff JACQUELINE MISHO (“Misho”) has tried to make an improper
allegation of reverse alter ego which is contrary to California law. Additionally, such a
6
claim runs afoul of California Rules of Professional Conduct, Rule 3-301(f) because
Misho needs written consent from defendant Catherine Ann Cora (“Cora”) in order to
8
have a third party pay Cora’s legal fees.
9
1.
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THE CAUSE OF ACTION FOR BREACH OF CONTRACT CONTAINS ALLEGATIONS
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OF REVERSE ALTER EGO WHICH ARE CONTRARY TO CALIFORNIA LAW
; 12
The Complaint in this matter alleges that Cat Cora Inc. is the alter ego of Cora
13
H! 14
base on the following: Cora is the sole owner of the corporation; Cora dominates and
controls itsoperations; the company is undercapitalized and Cora uses it to pay her
15
personal expenses; and Cora uses the company to conceal her assets from creditors.
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16
17 This allegation of reverse alter ego, whereby a creditor attempts to pierce the corporate
18 veil to reach corporate assets to answer for the debts of a shareholder, has been
jg expressly rejected by California courts.
20 In Postal Instant Press, Inc. v. kaswa Corporation (2008) 162 Cal. App.4th 1510,
21 the Court of Appeal stated, ‘The reasoning of the cases adopting outside reverse
22 piercing of the corporate veil isflawed, and we join other courts in declining to accept it.”
23 (Postallnstant Express v. Kaswa, supra at 1512). The Court in Postal Instant Press,
24 supra, went on to state, “In other words, outside reverse piercing seeks to protect the
25 judgment creditor from the shareholders fraudulent transfer of assets to the corporation.
26 But, as explained in Cascade Energy and Floyd, conversion and fraudulent conveyance
27
4
28
In re the Matter of: SANTA BARBARA SUPERIOR COURT
Plaintiffs: JACQUELINE MISHO, etc. CASE NO. 18CV01749
vs. Defendant catherine Ann Cora’s
Defendants: CATHERINE ANN CORA, et al. Motion to Strike
already afford judgment creditors protection in that situation.” (Postal Instant Express v.
2 Kaswa, supra at 1522).
z
CALIFORNIA RULES OF PROFESSIONAL CONDUCT
PROHIBIT ATTORNEY FROM ACCEPTING COMPENSATION
6
FROM THIRD PARTY WITHOUT CLIENT’S CONSENT
7
California Rules of Professional Conduct, Rule 3-301 (0(3) provides that an
8
attorney shall not accept compensation for representing a client from one other than the
9
client, unless the attorney obtains the client’s informed, written consent. Misho is
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seeking an end-run around her ethical obligations by trying to have a third party held
liable for Cora’s legal fees. If Misho wanted Core’s company, or any other person or
; 12
entity, to be liable for Cora’s legal fees, then Misho needed to secure Cora’s written
13
consentfor such compensation.
14
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16 CONCLUSION
17 Based on the above, Cora hereby requests that this Court strike paragraph three
18 (3) of the Complaint in itsentirety pursuant to Code of Civil Procedure §436 (b) as this
19 part of the Complaint is not drawn in conformity with California law. Additionally, Cora
20 hereby requests that this Court strike paragraph 20 in its entirety as the allegations
21 contained therein are irrelevant and improper pursuant to Code of Civil Procedure §436
22 (a).
23 DATED: May 21, 2018 FRIEDMAN & FRIEDMAN
24
25 By ciJ Z_
26 DAVID H. FRIEDMAN, Attorneys for
Defendant CATHERINE ANN CORA
27
5
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In re the Matter of: SANTA BARBARA SUPERIOR COURT
Plaintiffs: JACQUELINE MISHO, etc. CASE NO. 18CV01749
vs. Defendant Catherine Ann cora’s
Defendants: CATHERINE ANN CORA, et al. Motion to Strike
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA
)ss.
3 COUNTY OF LOS ANGELES
4 I am employed in the County of Los Angeles, State of California. Iam over the age
5 of eighteen (18) and not a party to the within action. My business address is 9454 Wilshire
6 Boulevard, Suite 313, Beverly Hills, California 90212.
7 On May 21, 2018, Iserved the foregoing document described as: DEFENDANT
8 CATHERINE CORA’S NOTICE OF MOTION AND MOTION TO STRIKE; MEMORANDUM
9 OF POINTS AND AUTHORITIES IN SUPPORT on interested parties in this action by
10 placing for collection a true copy thereof enclosed in a sealed envelope at Beverly Hills,
11 California addressed as follows:
12 RICHARD I.WIDEMAN, ESO
13 JONATHAN D. WIDEMAN, ESQ.
Qz.
Frederik’s Court #232 & VIA EMAIL
14 485 Alisal Road
<00 riwIaw(ãgmaiI.com
15 Solvang, CA 93463 jonathanwidemangmaiI.com
16
17 I am readily familiar with the firm’s practice of collection and processing
18 correspondence for mailing. Under the practice the envelope would be deposited with U.S.
19 Postal Service on that same day with postage thereon fully prepaid at Los Angeles,
20 California in the ordinary course of business. Iam aware that on motion of the party served,
21 service is presumed invalid if postal cancellation date or postage meter date ismore than
22 one day after date of deposit for mailing in affidavit.
23 I declare under penalty of perjury under the laws of the State of California that the
24 foregoing istrue and correct.
25 Executed on May 21, 2018
26 Th
27 PATRICIA MURPHY
6
28
In re the Matter of: SANTA BARBARA SUPERIOR COURT
Plaintiffs: JACQUELINE MISHO, etc. CASE NO. 18CV01749
vs. Defendant Catherine Ann Cora’s
Defendants: CATHERINE ANN CORA, et al. Motion to Strike
Preview
(SPACE BELOW FOR FILING STAMP ONLY) ELECTRONICALLY FILED Superior Court of California 1 FRIEDMAN County of Santa Barbara FRIEDMAN& Darrel E. Parker, Executive Officer LAWYERS 2 9454 WILSHIRE BOULEVARD. SUITE 313 5/21/2018 12:45 PM BEVERLY HILLS CALIFORNIA 90212-2904 By: Penny Wooff, Deputy 3 TELEPHONE 310.273 flOO FACSIMILE 310.273.3642 4 5 ATTORNEYS FOR Defendants Catherine Ann Cora, an individual and Cat Cora, Inc. 6 ATTORNEY Qvid Friedman STATE BAR# 4u4442 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA BARBARA - ANACAPA DIVISION 10 11 JACQUELINE MISHO dba MISHO LAW ) CASE NO. 18CVO1749 GROUP, 12 ) DEFENDANT CATHERINE CORA’S Plaintiff, ) NOTICE OF MOTION AND MOTION 13 ) TO STRIKE; MEMORANDUM OF vs. ) POINTS AND AUTHORITIES IN 14 ) SUPPORT CATHERINE ANN (“CAT’) CORA, CAT 15 CORA INC., and Does 1 Through 25, ) Date: June 20, 2018 Dept.: 6 16 Defendants. ) Time: 9:30 a.m. Judge: Hon. Pauline Maxwell 17 18 19 TO PLAINTIFF JACQUELINE MISHO dba MISHO LAW GROUP: 20 PLEASE TAKE NOTICE, that on June 20, 2018, at 9:30 am., or as soon as 21 thereafter as the matter may be heard, in Department 6, of the Santa Barbara Superior 22 Court, Anacapa Division, defendant CATHERINE ANN CORA, will move this Court for an 23 order striking specified portions of the pleadings herein. 24 This Motion is brought pursuant to Code of Civil Procedure §436 (a) and (b); 25 Portal Instant Press Inc. vs. Kaswa (2008) 162 Cal. App.4th 1510; and California Rules 26 of Professional Conduct, Rule 3-310(f). 27 I 28 In re the Matter of: SANTA BARBARA SUPERIOR COURT Plaintiffs: JACQUELINE MISHO, etc. CASE NO. 18CVO1749 vs. Defendant Catherine Ann Cora’s Defendants: CATHERINE ANN CORA, et al. Motion to Strike 1 The within Motion will be based on this Notice of Motion, Motion to Strike, 2 Memorandum of Points and Authorities, the fileherein, and such other oral and documentary evidence as may be presented on to this Court. DATED: May 21, 2018 FRIEDMAN & FRIEDMAN By 7 DAVID H. FRIEDMAN, Attorneys for Defendant CATHERINE ANN CORA 8 9 10 11 :12 -cc 13 14 oc, 15 zz 16 xx WU4 - a = F- 18 19 20 21 22 23 24 25 26 27 2 28 In re the Matter of: SANTA BARBARA SUPERIOR COURT Plaintiffs: JACQUELINE MISHO, etc. CASE NO. 18CV01749 vs. Defendant Catherine Ann Cora’s Defendants: CATHERINE ANN CORA, et al. Motion to Strike 1 MOTION TO STRIKE 2 Defendant, Catherine Ann Cora (hereafter referred to as “Cora”), requests this 3 Court to strike paragraph three (3) of the Complaint in its entirety since reverse alter ego 4 is not a recognized theory in California law for this type of action. Additionally, Cora 5 requests that this Court strike paragraph 20 of the Complaint in itsentirety, as the 6 allegations are irrelevant and improper because reverse alter ego theory is not recognized in California in this type of action. 8 DATED: May21, 2018 FRIEDMAN & FRIEDMAN By DAVID H. FRIEDMAN, Attorneys for 12 Defendant CATHERINE ANN CORA c0 13 14 >o U”..,. cu, u -c Ui — zz :16 S 17 -J E 18 19 20 21 22 23 24 25 26 27 3 28 In re the Matter of: SANTA BARBARA SUPERIOR COURT Plaintiffs: JACQUELINE MISHO, etc. CASE NO. 18CVO1749 vs. Defendant Catherine Ann cora’s Defendants: CATHERINE ANN CORA, et al. Motion to Strike I MEMORANDUM OF POINTS AND AUTHORITIES IN 2 SUPPORT OF MOTION TO STRIKE The instant mailer is a simple and straightforward attorney and client fee dispute; however, plaintiff JACQUELINE MISHO (“Misho”) has tried to make an improper allegation of reverse alter ego which is contrary to California law. Additionally, such a 6 claim runs afoul of California Rules of Professional Conduct, Rule 3-301(f) because Misho needs written consent from defendant Catherine Ann Cora (“Cora”) in order to 8 have a third party pay Cora’s legal fees. 9 1. 10 THE CAUSE OF ACTION FOR BREACH OF CONTRACT CONTAINS ALLEGATIONS Eli OF REVERSE ALTER EGO WHICH ARE CONTRARY TO CALIFORNIA LAW ; 12 The Complaint in this matter alleges that Cat Cora Inc. is the alter ego of Cora 13 H! 14 base on the following: Cora is the sole owner of the corporation; Cora dominates and controls itsoperations; the company is undercapitalized and Cora uses it to pay her 15 personal expenses; and Cora uses the company to conceal her assets from creditors. z 16 17 This allegation of reverse alter ego, whereby a creditor attempts to pierce the corporate 18 veil to reach corporate assets to answer for the debts of a shareholder, has been jg expressly rejected by California courts. 20 In Postal Instant Press, Inc. v. kaswa Corporation (2008) 162 Cal. App.4th 1510, 21 the Court of Appeal stated, ‘The reasoning of the cases adopting outside reverse 22 piercing of the corporate veil isflawed, and we join other courts in declining to accept it.” 23 (Postallnstant Express v. Kaswa, supra at 1512). The Court in Postal Instant Press, 24 supra, went on to state, “In other words, outside reverse piercing seeks to protect the 25 judgment creditor from the shareholders fraudulent transfer of assets to the corporation. 26 But, as explained in Cascade Energy and Floyd, conversion and fraudulent conveyance 27 4 28 In re the Matter of: SANTA BARBARA SUPERIOR COURT Plaintiffs: JACQUELINE MISHO, etc. CASE NO. 18CV01749 vs. Defendant catherine Ann Cora’s Defendants: CATHERINE ANN CORA, et al. Motion to Strike already afford judgment creditors protection in that situation.” (Postal Instant Express v. 2 Kaswa, supra at 1522). z CALIFORNIA RULES OF PROFESSIONAL CONDUCT PROHIBIT ATTORNEY FROM ACCEPTING COMPENSATION 6 FROM THIRD PARTY WITHOUT CLIENT’S CONSENT 7 California Rules of Professional Conduct, Rule 3-301 (0(3) provides that an 8 attorney shall not accept compensation for representing a client from one other than the 9 client, unless the attorney obtains the client’s informed, written consent. Misho is 10 seeking an end-run around her ethical obligations by trying to have a third party held liable for Cora’s legal fees. If Misho wanted Core’s company, or any other person or ; 12 entity, to be liable for Cora’s legal fees, then Misho needed to secure Cora’s written 13 consentfor such compensation. 14 >Q ou, 16 CONCLUSION 17 Based on the above, Cora hereby requests that this Court strike paragraph three 18 (3) of the Complaint in itsentirety pursuant to Code of Civil Procedure §436 (b) as this 19 part of the Complaint is not drawn in conformity with California law. Additionally, Cora 20 hereby requests that this Court strike paragraph 20 in its entirety as the allegations 21 contained therein are irrelevant and improper pursuant to Code of Civil Procedure §436 22 (a). 23 DATED: May 21, 2018 FRIEDMAN & FRIEDMAN 24 25 By ciJ Z_ 26 DAVID H. FRIEDMAN, Attorneys for Defendant CATHERINE ANN CORA 27 5 28 In re the Matter of: SANTA BARBARA SUPERIOR COURT Plaintiffs: JACQUELINE MISHO, etc. CASE NO. 18CV01749 vs. Defendant Catherine Ann cora’s Defendants: CATHERINE ANN CORA, et al. Motion to Strike 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA )ss. 3 COUNTY OF LOS ANGELES 4 I am employed in the County of Los Angeles, State of California. Iam over the age 5 of eighteen (18) and not a party to the within action. My business address is 9454 Wilshire 6 Boulevard, Suite 313, Beverly Hills, California 90212. 7 On May 21, 2018, Iserved the foregoing document described as: DEFENDANT 8 CATHERINE CORA’S NOTICE OF MOTION AND MOTION TO STRIKE; MEMORANDUM 9 OF POINTS AND AUTHORITIES IN SUPPORT on interested parties in this action by 10 placing for collection a true copy thereof enclosed in a sealed envelope at Beverly Hills, 11 California addressed as follows: 12 RICHARD I.WIDEMAN, ESO 13 JONATHAN D. WIDEMAN, ESQ. Qz. Frederik’s Court #232 & VIA EMAIL 14 485 Alisal Road <00 riwIaw(ãgmaiI.com 15 Solvang, CA 93463 jonathanwidemangmaiI.com 16 17 I am readily familiar with the firm’s practice of collection and processing 18 correspondence for mailing. Under the practice the envelope would be deposited with U.S. 19 Postal Service on that same day with postage thereon fully prepaid at Los Angeles, 20 California in the ordinary course of business. Iam aware that on motion of the party served, 21 service is presumed invalid if postal cancellation date or postage meter date ismore than 22 one day after date of deposit for mailing in affidavit. 23 I declare under penalty of perjury under the laws of the State of California that the 24 foregoing istrue and correct. 25 Executed on May 21, 2018 26 Th 27 PATRICIA MURPHY 6 28 In re the Matter of: SANTA BARBARA SUPERIOR COURT Plaintiffs: JACQUELINE MISHO, etc. CASE NO. 18CV01749 vs. Defendant Catherine Ann Cora’s Defendants: CATHERINE ANN CORA, et al. Motion to Strike