Maksoud v. Hopkins et al

RESPONSE re MOTION for Summary Judgment, or in the alternative, Partial Summary Judgment

S.D. Cal.September 5, 2018

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 1 – RESPONSE TO DEFENDANT GUELTON’S STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT WILSON KEADJIAN BROWNDORF LLP MARC Y. LAZO (SBN 215998) BENJAMIN M. CUTCHSHAW (SBN 263483) TYLER R. TRAIN (SBN 318998) 1900 Main Street, Suite 600 Irvine, California 92614 Telephone: (888) 690-5557 mlazo@wkbllp.com bcutchshaw@wkbllp.com ttrain@wkbllp.com Attorneys for Plaintiff DR. CHARBEL MAKSOUD UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA DR. CHARBEL MAKSOUD, an individual, Plaintiff, vs. PHILIPPE GUELTON, an individual; TIRRELL PAYTON, an individual; SUSAN PAYTON, an individual; BT SOFTWARE AND RESEARCH, INC., a Delaware corporation; SHEKNOWS MEDIA, a New York corporation; MOMENTUM MARKETING, a Canadian entity of unknown form; and DOES 1–100 inclusive; Defendants. Case No.: 17-cv-362-H-WVG PLAINTIFF’S RESPONSE TO DEFENDANT GUELTON’S STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF DEFENDANT GUELTON’S MOTION FOR SUMMARY JUDGMENT Hearing Date: September 17, 2018 Hearing Time: 10:30 a.m. Case 3:17-cv-00362-H-WVG Document 108 Filed 09/05/18 PageID.1443 Page 1 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 — 2 — RESPONSE TO DEFENDANT GUELTON’S STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff Dr. Charbel Maksoud (“Plaintiff”) responds to Defendant Philippe Guelton’s (“Defendant” or “Guelton”) Separate Statement of Uncontroverted Facts in support of Defendant’s Motion for Summary Judgment as follows: I. DEFENDANT’S ALLEGED UNDISPUTED FACTS Defendant’s Alleged Undisputed Fact Plaintiff’s Response 1. Plaintiff entered into a Class A Common Stock Purchase Agreement with BT Software and Research, Inc. on May 10, 2014. Not disputed. 2. Pursuant to the Class A Common Stock Purchase Agreement, Plaintiff purchased 273,582 shares of common stock in BT for a price of $249,999.23. Not disputed. 3. Plaintiff did not meet or speak to, or otherwise communicate with Guelton prior to investing in BT. Disputed. Plaintiff’s RFA and Interrogatory responses only confirm that Plaintiff did not meet with Guelton face-to-face or exchange written communication prior to investing in BT. Plaintiff spoke with Guelton via telephone on multiple occasions prior to investing in BT. Declaration of Charbel Maksoud (“Maksoud Decl.”) ¶¶ 4–11. 4. Prior to Plaintiff’s investment in BT, Guelton did not make any representations to Plaintiff regarding his industry knowledge. Disputed. Plaintiff’s RFA responses only confirm that Plaintiff did not meet with Guelton face-to-face or exchange written communication prior to investing in BT. Plaintiff spoke with Guelton via telephone on multiple occasions prior to investing in BT and Guelton made representations to Plaintiff regarding his industry knowledge. Maksoud Decl. ¶¶ 4–11. 5. Prior to Plaintiff’s investment in BT, Guelton did not make any representations to Plaintiff regarding his media contacts. Disputed. Plaintiff’s RFA responses only confirm that Plaintiff did not meet with Guelton face-to-face or exchange written communication prior to investing in BT. Plaintiff spoke with Guelton via telephone on multiple occasions prior to investing in BT and Guelton made representations to Plaintiff regarding his media contacts. Maksoud Decl. ¶¶ 4–11. Case 3:17-cv-00362-H-WVG Document 108 Filed 09/05/18 PageID.1444 Page 2 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 — 3 — RESPONSE TO DEFENDANT GUELTON’S STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant’s Alleged Undisputed Fact Plaintiff’s Response 6. On or about May 1, 2014, Bruce Hopkins emailed Guelton, informing him that he was wrapping up a deal with a potential investor. Not disputed. 7. Other than the May 1, 2014 email exchange with Hopkins, Guelton had no communications with anyone else, including Plaintiff, regarding Plaintiff’s potential investment. Disputed. Plaintiff spoke with Guelton via telephone on multiple occasions prior to investing in BT regarding Plaintiff’s potential investment. Maksoud Decl. ¶¶ 4–11. 8. Guelton had no specific knowledge of what was told to Plaintiff prior to his investment, or of the terms of Plaintiff’s investment, other than the general terms included in the Unanimous Written Consent of the Board of Directors and the Stockholders of BT Software and Research, Inc. Disputed. Plaintiff spoke with Guelton via telephone on multiple occasions prior to investing in BT regarding Plaintiff’s potential investment. The discussions included the terms of Plaintiff’s potential investment. Maksoud Decl. ¶¶ 4–11. 9. In or around November 2011 Guelton became an “advisor” of BT. Not disputed. 10. Guelton’s duties as “advisor” were (1) meet periodically with management for strategy sessions; (2) introduce BT to prospective strategic partners; (3) be reasonably available to BT via phone and email; (4) allow BT to use his name when and where appropriate; and (5) meet with prospective strategic partners. Not disputed. 11. In exchange for his services as an “advisor,” Guelton was to receive warrants for 10,000 shares of BT per month, so long as the agreement was in force. Not disputed. 12. In or around July 2013, Bruce Hopkins and Tirrell Payton invited Guelton to join BT’s board of directors. Not disputed. 13. Guelton’s duties as “director” were identical to his duties as “advisor,” but instead of 10,000 shares per month, he was to receive 5% of all outstanding shares, subject to immediate vesting. Disputed. As a director, Defendant owed fiduciary duties to shareholders and prospective shareholders. Guelton also made affirmative representations of fact to Plaintiff both prior and subsequent to his investment, which representations were materially false. Guelton had the duty to ensure the representations were factually truthful when he undertook the role of director. Maksoud Decl. ¶¶ 4–11. Case 3:17-cv-00362-H-WVG Document 108 Filed 09/05/18 PageID.1445 Page 3 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 — 4 — RESPONSE TO DEFENDANT GUELTON’S STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant’s Alleged Undisputed Fact Plaintiff’s Response 14. Although he was referred to as a “stockholder,” Guelton never received any warrants for the 10,000 shares per month, nor any documentation for the 5% of outstanding shares. Not disputed. 15. On or about May 11, 2014, Plaintiff signed his own Advisor Agreement with BT. Not disputed. 16. Plaintiff’s duties pursuant to his Advisor Agreement were identical to Guelton’s duties pursuant to his Director Agreement (i.e. (1) meet periodically with management for strategy sessions; (2) introduce BT to prospective strategic partners; (3) be reasonably available to BT via phone and email; (4) allow BT to use his name when and where appropriate; and (5) meet with prospective strategic partners). Disputed. As a director, Defendant owed fiduciary duties to shareholders and prospective shareholders. Guelton also made affirmative representations of fact to Plaintiff both prior and subsequent to his investment, which representations were materially false. Guelton had the duty to ensure the representations were factually truthful when he undertook the role of director. Maksoud Decl. ¶¶ 4–11. 17. On May 14, 2014, Bruce Hopkins sent an email to the individuals involved with BT, introducing Plaintiff. Not disputed. 18. The May 14, 2014 email from Bruce Hopkins indicated that Guelton was a “board member” of BT. Not disputed. 19. At no point did Guelton’s duties as an advisor or director include issuing stock certificates, shares, or other documentation of ownership in BT. Partially disputed to the extent Defendant’s evidence enumerates certain duties but does not purport to represent an exhaustive list. 20. At no point did Guelton’s duties as an advisor or director include handling day-to- day and/or managerial issues. Disputed. As a director, Defendant owed fiduciary duties to shareholders and prospective shareholders. Guelton also made affirmative representations of fact to Plaintiff both prior and subsequent to his investment, which representations were materially false. Guelton had the duty to ensure the representations were factually truthful when he undertook the role of director. Maksoud Decl. ¶¶ 4–11. 21. At no point did Guelton have access to BT’s financial account(s) or BT’s books. Partially disputed to the extent Defendant’s documentary evidence does not support the fact alleged. 22. At no point did Guelton have access to BT’s financial accounts or have authorization to view those accounts. Partially disputed to the extent Defendant’s documentary evidence does not support the fact alleged. Case 3:17-cv-00362-H-WVG Document 108 Filed 09/05/18 PageID.1446 Page 4 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 — 5 — RESPONSE TO DEFENDANT GUELTON’S STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant’s Alleged Undisputed Fact Plaintiff’s Response 23. Guelton did not ever speak to Plaintiff about Plaintiff’s investment in BT, including how it would be used and/or what Plaintiff would receive in exchange for his investment. Disputed. Plaintiff spoke with Guelton via telephone on multiple occasions prior to investing in BT regarding Plaintiff’s potential investment. The discussions included the terms of Plaintiff’s potential investment and what Plaintiff would receive in return. Maksoud Decl. ¶¶ 4–11. 24. Guelton did not ever speak to Plaintiff about BT’s other investors or financial backing Disputed. Plaintiff spoke with Guelton via telephone on multiple occasions prior to and after investing in BT regarding BT’s other investors, both actual and prospective. Maksoud Decl. ¶¶ 4–12. 25. Guelton did not receive a salary from BT for his work as an “advisor” or as a “director.” Plaintiff is unable to respond without completing discovery including taking Defendant’s deposition. 26. Guelton never received or handled any part of Plaintiff’s investment, nor was he informed on precisely how those funds were used. Plaintiff is unable to respond without completing discovery including taking Defendant’s deposition. 27. Guelton never used any of BT’s funds for personal expenses. Plaintiff is unable to respond without completing discovery including taking Defendant’s deposition. 28. Guelton never received anything of monetary value from BT. Plaintiff is unable to respond without completing discovery including taking Defendant’s deposition. 29. At no point did Guelton discuss Onsay with either Plaintiff or his brother-in-law, Nadeem Baaklini. Plaintiff is unable to respond without completing discovery including taking Defendant’s deposition. 30. At no point did Plaintiff inform Guelton of any investment opportunities he forewent by investing in BT. Not disputed. 31. On November 8, 2015, Plaintiff sent an email to Bruce Hopkins entitled “Dude!!!” regarding Plaintiff’s inability to get in touch with Hopkins. Not disputed. 32. On November 8, 2015 Plaintiff sent an email to Guelton entitled “Re: Hello” asking whether Guelton had spoken to Bruce recently. Guelton responded, stating that he and Hopkins had a call scheduled, but he had not heard from Hopkins. Not disputed. Case 3:17-cv-00362-H-WVG Document 108 Filed 09/05/18 PageID.1447 Page 5 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 — 6 — RESPONSE TO DEFENDANT GUELTON’S STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant’s Alleged Undisputed Fact Plaintiff’s Response 33. On November 9, 2015, Guelton emailed Hopkins, asking if he will be available for their call, and letting Hopkins know that Plaintiff was worried about his lack of contact. Not disputed. 34. On November 10, 2015, Guelton emailed Tirrell Payton asking if he had heard from Hopkins. Payton responded that he had not. Guelton let Payton know that Hopkins did not show up for the monthly call that morning. Not disputed. 35. On November 11, 2015, Plaintiff emailed Guelton asking for news about Hopkins. Guelton responded, stating that neither he nor Payton had heard from Hopkins and that Payton is following up. Not disputed. 36. On November 16, 2015, Payton emailed Plaintiff and other individuals involved in BT, letting everyone know he cannot reach Hopkins or Hopkins’ family. Not disputed. 37. On November 19, 2015, Payton sent an email to the BT group, stating that he had just gotten off the phone with the Spanish consulate, who suggested filing a missing person’s report. Plaintiff responded asking if he could help, and Payton sent Plaintiff various personal information regarding Hopkins, including his banking information. Not disputed. 38. On November 30, 2015, after unsuccessful attempts by others to file a missing person’s report in San Diego, Guelton sent on email offering to try to file a missing persons report in New York. In the same email, Guelton asked Payton how business is being handled while Bruce is missing and whether BT needs his help. Not disputed. 39. On December 14, 2015, Payton emailed the BT group stating that Hopkins initiated a wire transfer from the business account. Not disputed. Case 3:17-cv-00362-H-WVG Document 108 Filed 09/05/18 PageID.1448 Page 6 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 — 7 — RESPONSE TO DEFENDANT GUELTON’S STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant’s Alleged Undisputed Fact Plaintiff’s Response 40. On December 19, 2015, Plaintiff sent Hopkins an email, stating he hopes Hopkins has not defrauded the company and that he will seek legal action if Hopkins does not respond. Not disputed. 41. On December 21, 2015, Payton sent Plaintiff an email updating him on the business’ status and stating that he started the process of dissolving the corporation. Not disputed. 42. On January 6, 2016, Payton sent the BT group an email with links to news stories regarding Hopkins and his legal troubles in Spain regarding the death of his son. Not disputed. 43. In the linked articles was information stating Hopkins’ youngest son had passed away and the family had failed to report the body and left it in their apartment for over a month. Not disputed. 44. On January 20, 2016, Guelton emailed Payton asking if he had been able to get into contact with Hopkins. Not disputed. 45. On February 23, 2017, Plaintiff initiated the current action. Much of the allegations in the original Complaint focused on the wrongdoings of Bruce Hopkins, who was named as a Defendant in the original Complaint. Partially disputed to the extent the original Complaint speaks for itself and whether the allegations contained therein as to Bruce Hopkins constitute “much” of the allegations. 46. On April 7, 2017, two Defendants named in the original Complaint filed a motion to dismiss, arguing, among other things, that Hopkins’ inclusion as a Defendant in the case destroyed the Court’s diversity jurisdiction. Not disputed. 47. On April 12, 2017, Plaintiff filed a Notice of Dismissal as to Bruce Hopkins. Plaintiff then filed a First Amended Complaint focusing his allegations on the remaining Defendants, stating that he had engaged in “informal discovery” efforts which revealed that Hopkins did not appear to have culpability. Partially disputed to the extent the First Amended Complaint speaks for itself. Case 3:17-cv-00362-H-WVG Document 108 Filed 09/05/18 PageID.1449 Page 7 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 — 8 — RESPONSE TO DEFENDANT GUELTON’S STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant’s Alleged Undisputed Fact Plaintiff’s Response 48. Plaintiff’s “informal discovery” was comprised of reviewing news articles, one published January 4, 2018 (after Hopkins already had been dismissed as a Defendant), and one published January 7, 2016 (before Plaintiff had filed his original Complaint). Disputed. Defendant’s evidence does not support the alleged fact. 49. At some point after the disappearance of Hopkins, BT was forfeited. Guelton was not involved in any way in the forfeiture process, nor is he aware of the precise date of forfeiture. Partially disputed to the extent it is not known when Hopkins disappeared. Further disputed to the extent Plaintiff is unable to respond without completing discovery including taking Defendant’s deposition. 50. Guelton has had no involvement with Kaliki or Onsay since January 2016. Plaintiff is unable to respond without completing discovery including taking Defendant’s deposition. 51. On or about December 30, 2014, Guelton received an email from Bruce Hopkins, stating BT was now the owner of the trademark “NavAds.” Guelton received no other information regarding the intellectual property relating to Kaliki or Onsay. Plaintiff is unable to respond without completing discovery including taking Defendant’s deposition. 52. Guelton is not the current holder of any patents or other intellectual property rights pertaining to Kaliki or Onsay. Plaintiff is unable to respond without completing discovery including taking Defendant’s deposition. II. PLAINTIFF’S ADDITIONAL FACTS PRECLUDING SUMMARY JUDGMENT Plaintiff’s Alleged Undisputed Fact Supporting Evidence 53. Defendant Guelton represented to Plaintiff that (1) other strategic investors had invested and would be investing money into BT; (2) that BT had secured contracts with major automobile manufactures and was in the process of negotiating more; (3) that BT (through Defendant Guelton’s industry contacts) had consummated strategic relationships with media conglomerates like the New York Times; (4) that he (Guelton) was personally invested in the company and had significant monetary raises in the bag from which Dr. Maksoud would substantially benefit as long as he consummated his investment immediately; and (5) that a major marketing company (AdLarge) was a strategic investor and partner in BT. Maksoud Decl. ¶¶ 4–11 54. Defendant Guelton’s false statements continued even after Plaintiff’s investment. Maksoud Decl. ¶ 12 Case 3:17-cv-00362-H-WVG Document 108 Filed 09/05/18 PageID.1450 Page 8 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 — 9 — RESPONSE TO DEFENDANT GUELTON’S STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 55. Defendant Guelton’s false statements to Plaintiff are consistent with Guelton’s false statements made to other third parties. Declaration of Marc Y. Lazo (“Lazo Decl.”) ¶ 9, Ex. D. 56. Defendant Guelton made numerous representations to Plaintiff regarding executed agreements with major automobile manufactures and media companies prior to and after Plaintiff’s investment. Maksoud Decl. ¶¶ 4–11. 57. Defendant Guelton admits that he had no knowledge of executed agreements with major automobile manufacturers and media companies. Lazo Decl. ¶ 10, Ex. E. 58. Plaintiff would not have invested any money in BT had it not been for Defendant Guelton’s statements made to Plaintiff’s investment. Maksoud Decl. ¶ 11. 59. Plaintiff trusted Defendant Guelton – who was director of the company and one of the largest media marketing moguls in the country – and who was also espoused and praised by Plaintiff’s longtime friend and next-door neighbor, Bruce Hopkins. Maksoud Decl. ¶¶ 4–11. 60. Plaintiff expended hundreds of hours contacting media companies in Europe as directed by Defendant Guelton and the other Defendants. Maksoud Decl. ¶ 12. 61. But for Guelton’s false statements, Plaintiff would have taken immediate action to recoup his investment prior to the company’s forfeiture (and prior to his investment funds being squandered) and would not have wasted countless hours promoting a company based on agreements and partnerships that did not exist. Maksoud Decl. ¶ 11. 62. Guelton was informed of Hopkins’ false representation to Plaintiff regarding the company’s $10 million valuation prior to Plaintiff’s investment and yet did nothing. In fact, Guelton encouraged Hopkins to make the false representation. Lazo Decl. ¶ 11, Ex. F 63. Defendant Guelton admits he had no basis to believe Hopkins’ $10 million valuation was accurate. Lazo Decl. ¶ 12, Ex. G. DATED: September 4, 2018 WILSON KEADJIAN BROWNDORF LLP By: Marc Y. Lazo Attorneys for Plaintiff Case 3:17-cv-00362-H-WVG Document 108 Filed 09/05/18 PageID.1451 Page 9 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 PROOF OF SERVICE CERTIFICATE OF SERVICE FORM FOR ELECTRONIC FILINGS I hereby certify that on September 5, 2018, 2018, I electronically filed PLAINTIFF’S RESPONSE TO DEFENDANT GUELTON’S STATEMENT OF UNCONTROVERED FACTS IN SUPPORT OF DEFENDANT GUELTON’S MOTION FOR SUMMARY JUDGMENT with the Southern District of California by using the CM/ECF system. Dated: September 5, 2018 WILSON KEADJIAN BROWNDORF, LLP By: _________________________________ MARC Y. LAZO Attorney for Plaintiff Case 3:17-cv-00362-H-WVG Document 108 Filed 09/05/18 PageID.1452 Page 10 of 10