Eng vs. Brown

Motion in Limine

Cal. Super. - 4th Dist.December 8, 2011

F I S C H B A C H & FI SC HB AC H, A L A W C O R P O R A T I O N 82 00 W I L S H I R E BL VD . SU IT E 42 4 B E V E R L Y HI LL S, C A L I F O R N I A 90 21 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOSEPH S. FISCHBACH (SBN 70830) jsf2@fischbachlaw.com IAN KASOFF (SBN 296515) ikasoff@fischbachlaw.com Fischbach & Fischbach A Law Corporation 8200 Wilshire Blvd. Suite 424 Beverly Hills, California 90211 Telephone: (310) 278-4015 Facsimile: (310) 278-2894 Attorneys for Plaintiff ELECTRONICALLY FILED Superior Court of California, County of San Diego 1110/2016 at 05:00:00 Ad Clerk of the Superior Court By Candace Schaeffer, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO Franklin Eng, Plaintiff, Vs. Michael Patrick Brown, Jerry Levy, B.L E. Fish Inc. d/b/a Tin Fish Gas Lamp. and DOES 1-100 Inclusive, Defendants. ) Case No.: 37-2011-00102213 ) ) NOTICE OF MOTION AND MOTION IN ) LIMINE NUMBER SIX FOR AN ORDER ) SEVERING ISSUES AND SETTING A ) HEARING ) 1. TO DETERMINE THE EXISTENCE OF A ) PARTNERSHIP-JOINT VENTURE FROM ) THE OUTSET AS A MATTER OF LAW ) BASED ON UNDISPUTED FACTS; ) 2. SEVERANCE OF THE ANSWER’S ) AFFIRMATIVE DEFENSES FOR SEPARATE ) HEARING CCP §1048, E.C.§ 402; ) MEMORANDUM OF POINTS AND ) AUTHORITIES; SUPPORTING ) DECLARATION [Alternate to Motion in ) Limine Number Two in part] ) ) Date: November 18, 2016 ) Time: 8:40 a.m. ) Department: 69 ) ) Trial Date: November 28, 2016 TO EACH PARTY AND THEIR ATTORNEY OF RECORD: PLEASE TAKE NOTICE that on November 18, 2016 8:40 a.m. in Department 69 of the above-entitled court, or as soon thereafter as the matter may be heard, Plaintiffs will move in limine, denominated as Motion in Limine Number Six. This motion is being brought as an OMOTION IN LIMINE NUMBER SIX AND PROPOSED ORDER THEREON J, J. F I S C H B A C H & F I S C E B A C H , A L A W C O R P O R A T I O N 82 00 W I L S H I R E BL VD . SU IT E 42 4 B E V E R L Y HI LL S, C A L I F O R N I A 90 21 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 alternative in the event that the court elects not to determine whether or not a partnership was legally formed as a matter of law under Corp. Code § 16202 in connection with a motion in limine. If the Court does not so find as a matter of law, then request is made that that issue be severed from the Answer and tried to the Court under Evidence Code § 402 in order to determine the relevance of any evidence to support the argument of the defense that there is no partnership under the Second Cause of Action but only a corporation under the Fifth Cause of Action. This stance is maintained by Defendant Brown in his declaration in support of his motion for summary judgment, wherein he states “There is no joint venture or partnership to dissolve and there never has been....” (Exhibit 4, {10). This position was recently repeated in the defendants” Motion for Judgment on the Pleadings which specifically says on page 3, line 11: “Defendants have denied that any joint venture or partnership ever existed among these parties.” Thus, the defendants are judicially estopped from arguing that the corporation superseded the partnership since they deny that they ever formed a partnership. If the affirmative defense that the subsequently formed corporation superseded the partnership has not been waived, then request is made for an ORDER determining that a partnership/joint venture was formed from the outset of the business relationship as a matter of law and that therefore the defense is relegated to proving. Based upon motion in limine number two, if the court agrees that a partnership was formed as a matter of law and that the “issue” of whether the Corporation superseded the partnership is and affirmative defense that has been waived by failure to plead, then this request is moot. Additionally, Plaintiff will seek an ORDER to sever and try before the Court prior to impaneling the jury the affirmative defenses of the Corporation's Answer filed January 4, 2016. (Code of Civil Procedure § 1048; Evid.Code. § 402 et seq.) The Corporation contradicts sworn testimony and all of the evidence in this case by alleging the Plaintiff lacks standing to bring a shareholder derivative action. This Affirmative Defense was made up and designed to allow the Corporation to participate. In summary, the argument of the Defense is that since OMOTION IN LIMINE NUMBER SIX AND PROPOSED ORDER THEREON ite F I S C H B A C H & F I S C H B A C H , A L A W C O R P O R A T I O N 82 00 W I L S H I R E BL VD . SU IT E 42 4 BE VE RL Y HI LL S, CA LI FO RN IA 90 21 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Plaintiff is arguing that the Corporation is a vehicle for the operation of the partnership, therefore a separate legal entity called a partnership owns all of the stock in the Corporation and thus only that partnership has standing to bring this action. This position is also the subject of a motion in limine because it is legally incorrect. If it is not resolved by the court, then this request is made. In addition to Evidence Code § 402, this motion will be based upon Code Civ. Proc. § 128(a)(3), (8), which states that every court has the power to provide for the orderly conduct of proceedings before it, and to amend and control its process and orders to make them conform to law and justice, Code of Civil Procedure § 1048 and Corporations Code §§16101 and 16202. The motion will further be based on the records, papers and files of the within matter, together with such other and further evidence both oral and documentary as may be presented at the time of the hearing on the Motion. DATED: November 9, 2016 FISCHBACH & FISCHBACH JETER ACH Attorneyp for Plaintiffs OMOTION IN LIMINE NUMBER SIX AND PROPOSED ORDER THEREON -iii- TF IS CH BA CH & FI SC HB AC H, A L A W C O R P O R A T I O N 82 00 W I L S H I R E BL VD . SU IT E 42 4 B E V E R L Y HI LL S, C A L I F O R N I A 90 21 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. Statement of Facts As noted in Motion In Limine Number One, the instant matter is a dispute among three partners. As stated by defendant Levy in his Declaration in Support of his Motion for Summary Adjudication, “the three of us [Brown, Levy and Eng] purchased this restaurant business...” (Exhibit 1) This Motion is brought as an alternate to Motions In Limine Two and Three in case the court prefers formal severance and trial. The facts surrounding each request are, however, undisputed as a matter of law. The bottom line is that Brown and Levy were the exclusive managers of the restaurant business conducted in a corporate form for tax and liability reasons, known as BLE Fish Inc, doing business as the Tin Fish Gaslamp Restaurant and Bar. It is undisputed that Brown and Levy, for nearly four years of operation, distributed the net profits in accordance with the respective percentages of the partners, 56.666% to Brown, 33.33% to Levy and 10% to Plaintiff (Attached hereto and marked as Exhibit 2 is B.L.E.”s production of Bates-stamp BLE 000001 entitled BLE Fish Stockholder Settlement.) Plaintiff rounded off in the Complaint to 57%, 33% and 10%, but to be precise, Mr. Eng gave up 20.333% of his original one-third partnership interest to Mr. Brown and that is why it is 56.666%. As the court file will reflect, the original complaint in this matter was filed in 2011. A First Amended Complaint, attached hereto and incorporated by this reference as Exhibit 3, was later filed and in Paragraph 5 an oral Joint Venture Agreement to acquire and operate the Tin Fish Restaurant was alleged. It was further alleged that the joint venture would carry on the business through a Subchapter S Corporation. A Verified Answer to the First Amended Complaint was filed by the Defendants and in connection with Paragraph 5 it states: “Answering the allegations of paragraph 5, defendants admit plaintiff and the individual defendants agreed to acquire ownership of the Tin Fish restaurant in San Diego, that Brown and Levy would receive a management fee based upon gross sales, that OMOTION IN LIMINE NUMBER SIX AND PROPOSED ORDER THEREON «la FI SC HB AC H & FI SC HB AC H, A LA W CO RP OR AT IO N 82 00 WI LS HI RE BL VD . SU IT E 42 4 B E V E R L Y Hi LL S, C A L I F O R N I A 90 21 1 10 11 12 13 14 15 16 1% 18 19 20 21 22 23 24 25 26 27 28 Brown would own 57 percent, Levy would own 33 percent and plaintiff would own 10 percent ownership interest in the restaurant ...” On June 27, 2014, the Defense served a Motion for Summary Judgment and in connection therewith served and filed the declaration of the individual Defendant Jerry Levy. In his Declaration, Mr. Levy states as follows: “The three of us purchased this restaurant business for $1.6 million. Plaintiff Eng invested $41,023.20 for his 10% interest which has been repaid to him many times over in dividend distributions.” (Declaration of Levy, Exhibit 1, 2:57). Secondly, on January 4, 2016, several months after the Court of Appeal confirmed this Court's order striking the Corporation answer and indicating that the Corporation was only allowed to defend on the basis of lack of standing to bring a shareholder suit, the Corporation filed a frivolous Answer which is a hybrid purporting to deny substantive allegations as well as asserting a lack of standing to bring a derivative suit. This Answer was filed without leave of court and is the subject of request in limine that it be stricken. If it is not stricken in in limine, then request is made that the affirmative defense of lack of standing, which contradicts sworn testimony and all of the evidence in this case, be severed and tried before the Court prior to impaneling the jury. II. ~The Court Has The Inherent Power To Sever Issues And Determine Preliminary Facts Under Evidence Code § 402. The instant matter has become increasingly confused because of the insistence of the Defense that despite the clear admission of the formation of a partnership, this is a shareholder derivative action. Boiled down to its essence, Mr. Brown contends that all the Plaintiff did was purchase an interest in a corporation, and therefore Plaintiff as a minority shareholder must sue in the name of the corporation and any monies which are recovered will belong to the Corporation. Courts have inherent power, separate from any statutory authority, to control the litigation before them and to adopt any suitable method of practice, even if the method is not OMOTION IN LIMINE NUMBER SIX AND PROPOSED ORDER THEREON -7- F I S C H B A C H & F I S C H B A C H , A L A W C O R P O R A T I O N 82 00 W I L S H I R E BL VD . SU IT E 42 4 B E V E R L Y HI LL S, C A L I F O R N I A 90 21 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 specified by statute or by the Rules of Court. Amtower v. Photon Dynamics, Inc. (2008), 158 Cal. App. 4th 1582, 1595. Section 1048 of the Code of Civil Procedure provides for the consolidation or severance of actions “in the discretion of the court whenever it can be done without prejudice to a substantial right.” The discretion granted to the court must necessarily be broad and will not be interfered with on appeal, except for an abuse thereof. Nat'l Elec. Supply Co. v. Mt. Diablo Unified Sch. Dist. (1960), 187 Cal. App. 2d 418, 421. Moreover, it is well-established that a trial court may, on its own motion, make an order setting the precedence of issues for trial at any time. Evidence Code § 320 provides that “le]xcept as otherwise provided by law, the court in its discretion shall regulate the order of proof.” Similarly, Code of Civil Procedure § 1048, subdivision (b) states that a trial court, “in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action ... or of any separate issue or of any number of causes of action or issues...” Under these provisions, trial courts have broad discretion to determine the order of proof in the interests of judicial economy. [Citation] Grappo v. Coventry Fin. Corp., (1991) 235 Cal. App. 3d 496, 503-04. II. As A Matter Of Law, A Partnership Was Formed Regardless Of The Intent Of The Parties The Defense argument that no partnership was formed expressly flies in the face of statutory law and case holdings. It is submitted to the Court that a partnership was formed as admitted in both the Verified Answer to the First Amended Complaint as well as the supporting Declaration of Jerry Levy for his Motion for Summary Judgment, both of which are attached and highlighted as Exhibits 3 and 1. Based thereupon, Plaintiff believes that the provisions of the Corporations Code have been triggered and that as a matter of law a joint venture/partnership was formed for the purchase of the business and the only argument left for the Defense is whether or not the Corporation is a vehicle for the operation of the business or superseded the partnership in some fashion. The Defense does not agree. OMOTION IN LIMINE NUMBER SIX AND PROPOSED ORDER THEREON ie F i S C H B A C H & F I S C H B A C H , A L A W C O R P O R A T I O N 82 00 W I L S H I R E BL VD . SU IT E 42 4 B E V E R L Y HI LL S, C A L I F O R N I A 90 21 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By this application to sever, Plaintiff requests a hearing in the nature of an Evidence Code § 402 preliminary fact determination. Plaintiff seeks to have this court interpret, as a matter of law based upon the undisputed facts, that a partnership was formed to buy the business. That thereafter if the court has not already precluded an argument by failure to pleaded as an affirmative defense, the defense would have the burden of proof to show that the Corporation superseded the partnership, a question for the trier of fact. “Partnership” means an association of two or more persons to carry on as co- owners a business for profit ...) “Partnership agreement” means the agreement, whether written, oral, or implied, among the partners concerning the partnership, including amendments to the partnership agreement. Corp. Code, § 16101. “A joint venture ... is an undertaking by two or more persons jointly to carry out a single business enterprise for profit. (Hansen v. Burford, 212 Cal. 100, 108-9 [297 P. 908]; Irer v. Gawn, 99 Cal.App. 17 [277 P. 1053]; Keyes v. Nims, 43 Cal. App. 1, 9 [184 P. 695].) (4) Such a venture or undertaking may be formed by parol agreement (Sly v. Abbott, 89 Cal. App. 209, 216 [264 P. 507]), or it may be assumed as a reasonable deduction from the acts and declarations of the parties (Swanson v. Siem, 124 Cal. App. 519, 524 [12 P.2d 1053].) Nelson v. Abraham (1947) 29 Cal.2d 745, 749-50 [177 P.2d 931]. Although a partnership generally contemplates an equal sharing of profits and losses in the prosecution of a common purpose, the division may be left to agreement of the parties. (Constans v. Ross, 106 Cal. App.2d 381 [235 P.2d 113]. Singleton v. Fuller (1953), 118 Cal. App.2d 733, 740-41.” The single most important factor, however, is Corporations Code § 16202 which provides that a partnership is formed as a matter of law without regard to the intent of the parties: a) Except as otherwise provided in subdivision (b), the association of two or more persons to carry on as co-owners a business for profit forms a partnership, whether or not the persons intend to form a partnership. (c) In determining whether a partnership is formed, the following rules apply... (3) A person who receives a share of the profits of a business is presumed to be a partner in the business, unless the profits were received for any of the following reasons:(A) In payment of a debt by installments or otherwise. (B) ... [none applicable] Corp. Code, § 16202. Accordingly, the applicable rules mandate finding that the business was purchased as a joint venture/partnership and the payment of the dividends confirm that it was merely partnership profit distribution. [A declaration is sufficient proof to support a finding of fact.] OMOTION IN LIMINE NUMBER SIX AND PROPOSED ORDER THEREON i. F I S C H B A C H & F I S C H B A C H , A L A W C O R P O R A T I O N 82 00 WI LS HI RE BL VD . SU IT E 42 4 B E V E R L Y HI LL S, C A L I F O R N I A 90 21 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Ladas v. California State Auto. Assn. supra, 19 Cal.App.4th 761, at p. 776), Thon v. Thompson (1994), 29 Cal. App.4th 1546, 1549. Insofar as the Court rules that the affirmative defenses are necessary, with respect to the derivative action, by law all that the nominal defendant can assert is a lack of “standing.” As the court knows, the Corporate answer was stricken and the Corporation was advised that it need not file an answer. The Corporation did not until well after the Court of Appeal opinion confirming the Trial Court Order which in part dismissed the Corporate Answer. Without leave of court the Corporation created a frivolous argument that because the Plaintiff is maintaining that the Corporation was a vehicle for the operation of the partnership business, then a nonexistent separate legal entity owns the Corporation. The Corporation is an S DAC election and Corporate counsel has literally pled the requisite argument for the IRS to revoke the S election because an S corporation is treated as a partnership owned by individuals. The argument, is therefore not only legally irrelevant, it is a per se breach of fiduciary duty to the minority. It was designed solely and only to allow corporate counsel to participate in this litigation and help the majority partners. This is a sham based upon the position of the Plaintiff and not based upon the facts or the law. The Corporation is a mere vehicle and there is no dispute whatsoever that as a matter of law this is a Corporation owned by 3 individuals as they keep stating under penalty of perjury. As such, Corporate Defendant should have to prove that in fact the Plaintiff was not a shareholder and lacks standing and request is made that that issue be tried to the court before the jury is empaneled. Wherefore, it is respectfully requested that the motion be granted and that the issues specified be severed and tried before the Court before impaneling a jury. DATED: November 9, 2016 FIS CH & FISCHBACH ORPORATION By: JOSEPH SYFISCHBACH Attorney% for Plaintiff OMOTION IN LIMINE NUMBER SIX AND PROPOSED ORDER THEREON -A- F I S C H B A C H & F I S C H B A C H , A L A W C O R P O R A T I O N 82 00 WI LS HI RE BL VD . SU IT E 42 4 B E V E R L Y HI LL S, C A L I F O R N I A 90 21 1 10 iL 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JOSEPH S. FISCHBACH I, Joseph S. Fischbach, say and declare as follows: 1. That I am one of the attorneys for plaintiffs herein and as such make this Declaration from facts within my personal knowledge and if called upon to testify could sq competently testify thereto. 2. Attached hereto and incorporated by this reference marked as Exhibit 1 is a true and correct copy of the Declaration of Jerry Levy in support of his Motion for Summary Judgment heard on September 19, 2014, which is it attached solely and only for purposes of paragraph 2 and the sentence “the three of us purchased this restaurant business for $1.4 million.” 3. Attached hereto and incorporated by this reference and marked as Exhibit 2 is a true and correct copy of the Stockholder Settlement of BLE Fish provided by the defense and Bates-stamped BLE 000001 reflecting the percentage ownership in the venture. 4. Attached hereto and incorporated by this reference marked as Exhibit 3 is a trud and correct copy of the Verified Answer to the First Amended Complaint with appropriate highlighting of the response to paragraph 5. 5. My attempts to meet and confer on this were unsuccessful as both defendants are “sticking to their guns.” I declare under penalty of perjury pursuant to the laws of the State of California that thd foregoing is true and correct to the best of my knowledge. Executed this 9 of November 2016, at Beverly Hills, California. 0 eph S. Fischbach DECLARATION OF JOSEPH S. FISCHBACH ol EXHIBIT 1 10 11 12 13 14 15 16 17 2t 22 23 24 25 26 Edwin Paul (Bar No. 43608) Margie L. Jesswein (Bar No. 102748) Law Offices of Edwin Paul 232 W. Main Street, Suite 105 Tustin, California 92780 Telephone (714) 838-9211 Attorneys For Defendants Michael Patrick Brown and Jerry Levy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO Franklin Eng Plaintiff, Vs. Michael Patrick Brown, Jerry Levy, and Does 1-100 inclusive Defendants ar t he ? rt rt a d N r we v d n d Na S a t Se h t rt n d Sa Wa ae Se we me er Se d Ne A N r W r e r I, Jerry Levy, declare and say: Case No. 37-2011-00102213-CU-MC-CTL DECLARATION OF JERRY LEVY IN SUPPORT OF DEFENDANTS BROWN AND LEVY MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION IMAGED FILE Suit Filed: December 11,2011 Judge HONORABLE KATHERINE BACAL Dept: C-69 Date: September 19, 2014 Time: 1:30 p.m. I. 1 am a stockholder of B.L.E. Fish, Inc., owning 33.333% of Declaration of Jerry Levy In Support of Motion For Summary Judgment Or Alternatively For Summary Adjudication of the ’ First, Second and Fifth Causes of Action Of the First Amended Complaint -1- 10 11 12 13 14 15 16 18 19 20 21 26 27 28 the outstanding and issued stock. Defendant Michael Brown owns 56.667% of the stock of that corporation and plaintiff Eng owns 10%, all as more particularly shown on the Stock Transfer Ledger a copy of which is attached hereto as Exhibit A Z. The three of us purchased this restaurant business for $1,600,000.00. Plaintiff Eng invested $41,023.20 for his 10% interest, which has been repaid to him many times over in dividend distributions. 3. On the issue of whether the business is a joint venture partnership or a corporation, attached hereto as Exhibit B are Form 2553, Election by Small Business Corporation in which Frank Eng, myself Jerry Levy, and Michael Brown swore under oath (see highlighted area) that "we consent to the election of the above-named corporation to be an S corporation - - -: The business is a corporation and not a joint venture. 4. In order to finance the purchase Michael Brown and I had to borrow money from a bank. The bank required that the loan be personally guaranteed by Mike Brown and myself. A true and correct copy of the Unconditional Limited Guarantee which I and my wife signed is attached hereto as Exhibit C. The bank also required that security be provided for the loan in the form of a deed of trust on our home. A true and correct copy of the deed of trust given to American Continental Bank (lender), which I and my wife signed, is attached hereto as Exhibit D. 4. Plaintiff Eng did not participate in this loan, in any way. Mr. Eng also did not participate in the guarantee of payment of the carry-back note taken by the seller, a copy of which is attached hereto as Exhibit E. Plaintiff Eng therefore did not share in potential losses. He only shares in profits in the form of dividends distributed to shareholders. All dividends have been distributed in accordance with the percentage interest each of the individuals own of the stock of Declaration of Jerry Levy In Support of Motion For Summary Judgment Or Alternatively For Summary Adjudication of the First, Second and Fifth Causes of Action Of the First Amended Complaint “2. 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 the corporation, defendant Brown 57%, defendant Levy 33%, and plaintiff Eng 10%. D>. Recently, I went to my safe deposit box, and found an agreement signed by Mike Brown, Franklin Eng, and myself in which we all agreed that Mike Brown and myself would have exclusive authority to oversee the restaurant business and all daily operations of Tin Fish Gaslamp, and that we are stockholders and corporate officers. A true copy is attached hereto as Exhibit F I declare under the penalty of perjury that the foregoing is true of my own personal knowledge and that I have signed this declaration at San Diego, Calif. on June 27, 2014 \ AWA 3 Declaration of Jerry Levy In Support of Mation For Summary Judgment Or Alternatively For Summary Adjudication of the First, Second and Fifth Causes of Action Of the First Amended Complaint -3- B.L.E. Fish Stockholders Settlement Down Payment Epenses initial Investment Stock Equity Credit Due -- Mike 56.666% $ 20,000.00 ' Cw tow : $ 49,000.00 $ 100,000.00 . $ 102.10600 $ 4,985.00 § 271,106.00 $ 276,064.00 . 232462.07 $43,607.93 "Jerry. 33.333% § 60,000.00 © $ 8820000 $ 887.00 $ 148,200.00 $ 149,087.00 136742.83 $12,344.37 Frank 10% © § 50,000.00 $ 50,000.00 410232 $ 8,976.80 Liabilites/Costs ~~ Cash - $ 480,000.00 Misc.Expenses § - 887.00 ’ CT §% 7 4,985.00 Closing Cost ‘$9,675.00 [hventory $ 15,666.00 Le -. Total $. 511,21200 $ 511,212.00 "Contract Credits Credit $40,000.00 Comission Credit | § 60,000.00 "Bank Credit © $ 980.00 = ; © $ 100,980.00 $ (100,880.00) Total Stockhider Investment $ 41023200 Share Cost Ja La '$ 410232 BLE 000001 EXHIBIT 3 20 21 22 23 24 26 27 28 Edwin Paul (Bar No. 43608) Margie L. Jesswein (Bar No. 102748) Law Offices of Edwin Paul 232 W. Main Street, Suite 105 Tustin, California 92780 Telephone (714) 838-9211 Attorneys For Defendants Michael Patrick Brown and Jerry Levy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO Franklin Eng Case No. 37-2011-00102213-CU-MC-CTL Plaintiff, VS. ANSWER TO FIRST AMENDED COMPLAINT Michael Patrick Brown, Jerry Levy, B.L.E. Fish Inc. dba Tin Fish Gas Lamp and Does 1-100 inclusive Suit Filed: December 11, 20011 Judge HONORABLE WILLIAM S. DATO Dept: C-67 Date: February 15, 2013 Time: 1:30 pm ) ) ) ) ) ) ) ) ) ) ) ) ) Defendants ) ) ) ) ) } ) ) } } ) Comes now defendants Michael Patrick Brown and Jerry Levy and in answering the allegations of the First Amended Complaint, admits, denies and alleges as follows. 1. Defendants deny there is or ever was ever a joint venture as alleged in paragraph 2, but admit the individually named defendants are residents of Answer To First Amended Complaint _ a wn 16 19 20 21 22 24 25 26 27 28 the County of San Diego and that the corporate defendant has a principal place of business in the City of San Diego. 2. Defendants lack sufficient information, knowledge or belief to enable them to answer the allegations contained in paragraphs 3 and 4, and therefore deny said allegations. 3. Answering the allegations of paragraph 5, defendants admit plaintiff 4. Answering the allegations of paragraph 6, defendants admit the bulk of dividend distributions are made from April to October, and admit defendant Brown wrote a letter to plaintiff indicating that the last quarter of 2010's dividend distribution would be made in 2011. Except as expressly admitted above, defendants deny each and every allegation contained in paragraph 6 and the whole thereof. 5. Defendants deny the allegations of paragraph 7 and 8. ANSWER TO FIRST CAUSE OF ACTION 6. Answering the allegations of paragraph 9, defendants refer to their answer to the allegations contained in paragraphs 1 through 8 above, and by this reference incorporates the same herein as though fully set forth at this point. 7. Defendants deny all of the allegations contained in paragraphs 10 through 13. Also deny plaintiff has been damaged in any amount whatsoever. Il Answer To First Amended Complaint ara 10 11 12 13 14 13 16 17 19 20 21 22 23 24 23 26 27 28 ANSWER TO SECOND CAUSE OF ACTION 8. Answering the allegations of paragraph 14, defendants refer to their answer to the allegations contained in paragraphs 1 through 8 above, and by this reference incorporates the same herein as though fully set forth at this point. 9. Defendants deny all of the allegations contained in paragraphs 15 through 18, except defendants admit they refused to allow plaintiff's daughter to obtain free food and beverages from the restaurant for herself and her friends. Also deny plaintiff has been damaged in any amount whatsoever. RESPONSE TO THIRD CAUSE OF ACTION 10. Defendants demurrer to the third cause of action was sustained without leave to amend, and therefore there are no allegations to which a response is required. RESPONSE TO THE FOURTH CAUSE OF ACTION 11. Plaintiff dismissed the fourth cause of action with prejudice and therefore there are no allegations to which a response is required. ANSWER TO THE FIFTH CAUSE OF ACTION 12. Answering the allegations of paragraph 24, defendants refer to their answer to the allegations contained in paragraphs 1 through 8 above, and paragraphs 11, 12 and 20, and by this reference incorporates the same herein as though fully set forth at this point. 13. Answering the allegations of paragraph 25, defendants deny they engaged in any wrongful conduct, deny there is or ever was a joint venture among the individual parties. 14. Defendants deny the allegations contained in paragraphs 26, 27 and 28, and deny that plaintiff has been damaged in any amount whatsoever. FIRST AFFIRMATIVE DEFENSE TO THE FIRST, SECOND AND FIFTH CAUSE OF ACTION 15. That defendants in operating the business of the Tin Fish restaurant Answer To First Amended Complaint -3. 10 11 13 14 15 16 i7 18 acted at all times in keeping with the customs and practices of the restaurant business and exercised business judgment in good faith. PRAYER REGARDING THE FIRST, SECOND AND FIFTH CAUSES OF ACTION 1. That plaintiff recover nothing from the defendants or any of them; Z That defendants recover their costs of suit; 3. That no orders appointing a receiver or for an accounting which are sought in the prayer of the first amended complaint be made; 4. For such other and further relief which the Court determines is proper. Dated: February 27,2013 Law Office of Edwin Paul <= {1 ( By _ \ [Xl oy Edwin Paul * Answer To First Amended Complaint «4s Feb.28.2013 13:31 The Tin Fish 6192384560 PAGE. 1/ 20 21 22 23 24 25 26 27 VERIFICATION STATE OF CALIFORNIA, COUNTY OF SAN DIEGO I have read the foregoing ANSWER TO FIRST AMENDED COMPLAINT and know its contents. Tam JERRY LEVY, a party to this action, and I declare under the penalty of perjury under the laws of the State of California that the matters stated in tha foregoing document are true. Executed on February 28, 2013 at San Diego, California. 0 I & Answer To First Amended Complaint “dv 15 16 17 18 19 20 PROOF OF SERVICE BY MAIL STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. Tam over the age of 18 and not a party to the within action; my business address is 232 W. Main Street, Suite 105, Tustin, Ca. 92780. On February 28, 2013 I served the foregoing document ANSWER TO FIRST AMENDED COMPLAINT on the interested patties in this action by placing true copies thereof enclosed in sealed envelopes addressed as follows: Attorney For Plaintiff Franklin Eng Zacharia Moura, Esq, Fischbach and Fishbach, A Law Corporation 8200 Wilshire Blvd., Suite 424 Beverly Hills, California 90211 Attorneys For Defendant B.1..E. Fish, Inc. Thomas L. Gotfredson Blanchard, Krasner & French 800 Silverado Street, Second Floor La Jolla, Calif. 92037 I placed such envelope with first class postage thereon fully prepaid in the United States Mail at Tustin, California 1 declare under the penalty of perjury, under the laws of the State of California that the foregoing is true and correct. Executed on February 28, 2013 at Tustin, California Za Edwin Paul Proof of Service Form PROPOSED ORDER F I S C H B A C H & F I S C H B A C H , A L A W C O R P O R A T I O N 82 00 W I L S H I R E BL VD . SU IT E 42 4 B E V E R L Y Hi LL S, C A L I F O R N I A 90 21 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2b 26 27 28 ORDER ON MOTION IN LIMINE NUMBER SIX Plaintiff's Motion in Limine Number Six came on regularly for hearing before this court, and the Court having reviewed the papers and heard the oral argument of counsel, now makes the following Order: FOR GOOD CAUSE, IT IS HEREBY ORDERED that the motion is Granted, The Court finds that the issue of whether or not an oral partnership/joint venture was formed to purchase and acquire the Fish Gaslamp Restaurant, and the affirmative defenses of the Corporation Answer filed on January 4, 2016 are matters of law not fact and thus are severed and shall be tried before the Court prior to the impaneling of the jury in this matter. IT IS SO ORDERED. Dated: November , 2016 Hon. Katherine Bacal Judge of the Superior Court ORDER TO MOTION IN LIMINE NUMBER SIX _1- F I S C H B A C H & F I S C H B A C H , A L A W C O R P O R A T I O N 82 00 W I L S H I R E BL VD . SU IT E 42 4 B E V E R L Y HI LL S, C A L I F O R N I A 90 21 1 10 i | 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the county of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 8200 Wilshire Boulevard Suite 424, Beverly Hills, California 90211 On November 9, 2016, I served the following document(s) described as MOTION IN LIMINE NUMBER SIX WITH PROPOSED ORDER THEREON on the interested party(ies) in this action by placing true copies thereof enclosed in sealed envelopes and/or packages addressed as follows: Attorney for Michael Brown and Attorney for B.L.E. Fish, Inc. Gerald Levy Thomas L. Gotfredson Edwin Paul Blanchard, Krasner & French Law Offices of Edwin Paul 800 Silverado Street, 2" FI. 232 W. Main St., Suite 105 La Jolla, CA 92037 Tustin, CA 92780 tgotfredson@bkflaw.com EdwinPaulLaw@msn.com BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused the documents to be sent to the persons at the electronic notification addresses listed above. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on November 9, 2016, at San Diego, California. Lr Bs Jennifer Estrada -1- PROOF OF SERVICE