Cantech Industries vs Jimmy ash

Reply to Opposition Other

Cal. Super. - 4th Dist.October 11, 2018

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Perry Roshan-Zamir, CSB#161656 2530 Wilshire Blvd., Third Floor Santa Monica, CA 90403 ELECTRONICALLY FILED Telephone: (310) 582-1993 out of San Diego Facsimile: (310) 82-1094 01AT/2049 at 10:04:00 A mail: perry@perry.law Clerk of the Superior Court By E- Filing, Deputy Clerk Attorney for Defendant, IMMYASH, LLC SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO — NORTH COUNTY VISTA COURTHOUSE CANTECH INDUSTRIES, LLC Case No. 37-2018-00051493-CU-BC-NC PLAINTIFF REPLY TO PLAINTIFE’S OPPOSITION TO MOTION TO VS. CHANGE VENUE AND REQUEST FOR ATTORNEY FEES OF $7,495; JIMMYASH, LLC; DECLARATION OF JAMSHID ASHOURIAN DEFENDANTS DATE: JANUARY 25, 2019 TIME: 1:30 PM DEPT: N-27 REPLY I. INTRODUCTION First, it is important to note that the Plaintiff does not oppose nor dispute that JimmyAsh, LLC resides in Los Angeles County. The Plaintiff’s only argument is that the contract was entered into in San Diego county and was to be performed there. On both grounds, the Plaintiff misstates both the law and the facts. / // 1 CANTECH INDUSTRIES v. JIMMY ASH REPLY TO OPPOSITION TO MOTION TO CHANGE VENUE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. THE PLAINTIFF MISSTATES THE LAW AS TO WHERE THE CONTRACT WAS ENTERED INTO. THE CONTRACT WAS ENTERED INTO IN LOS ANGELES, CALFORNIA AS THAT IS WHERE THE LAST ACT OF FORMATION OCCURRED. The law in California is clear that for the purposes of a motion for change of venue, the last act necessary to the validity of a contract (usually acceptance) is the determining factor for setting the location where the contract was entered into. Under Jhirmack Enterprises, Inc. v. Super. Ct. (1979) 96 Cal.App.3d 715, 723, “[t]he last act necessary to the validity of a contract, usually the act constituting acceptance, is the place of making.” In Jhirmack, the Court concluded that the “last act necessary” was the final party executing the contract. Thus, Jhirmack found that the contract was made in the county where the final party executed it. Here, Plaintiff’s admit that that CanTech’s signature on the contract was not the last act that formed the contract. Paragraph 5 of Mr. Ahmadi’s declaration clearly states that he signed the contract on behalf of CanTech and emailed it to JimmyAsh. He then states that JimmyAsh counter-signed the agreement and returned it to him. Therefore, the last act that formed the contract would have been the signing of the contract by JimmyAsh in Los Angeles. Additionally, Mr. Ahmadi is not being truthful when he says “No version of the Agreement was ever signed and delivered by CanTech to JimmyAsh in Bakersfield.” The best proof of the fact that Mr. Ahmadi delivered the signed agreement to Bakersfield is the VISITOR LOG/SIGN IN SHEET he personally signed on January 10, 2017 at 1:30 pm when he visited the Bakerfield factory, a true and correct copy of which is attached as “Exhibit A.” As the court will note, Mr. Ahmadi visited the Bakersfield facility and signed-in on both January 10, 2017 and January 30, 2017. CANTECH INDUSTRIES v. JIMMYASH REPLY TO OPPOSITION TO MOTION TO CHANGE VENUE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The last act of formation of the contract was in Los Angeles and the contract was therefore entered into in Los Angeles, California. This motion should therefore be granted. III. THE CONTRACT WAS TO BE PERFORMED IN BAKERSFIELD Paragraph 1 and 2 of the contract attached to the complaint on its face shows that all of the obligations of the parties were to be performed in Kern County where JIMMY ASH is located. Paragraph 1 provides: c¢ a. Assist with trouble shooting and synchronizing of proprietary dryer systems and their related ancillary equipment. Assist with improving the existing and/or developing and inventing new processes, methods, equipment and know-how. Trouble shoot the production lines, find solutions and make recommendations for addressing any deficiencies, and implement or assist with implementing the approved recommendations. Function as an equipment supplier and develop and/or build tools, equipment or improvements and enhancements to existing JimmyAsh tools and equipment ...” Each of these obligations by necessity have to be performed in Bakersfield, Kern County since JIMMY ASH’s operations and factory is located there. The invoice attached to Mr. Ahmadi’s declaration as Exhibit 6 verifies that almost all of the acts above were to be done in Bakersfield. For example, the first and second line of the invoice state: “Gathered the geometry dimensions and CAD drawings of the JimmyAsh potato chips and created the 3D CAD Air Parasolid Model of this existing dryer (principal Engineer).” CANTECH INDUSTRIES v. JIMMYASH REPLY TO OPPOSITION TO MOTION TO CHANGE VENUE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Clearly, the only place where such dimensions could be gathered would be at the JimmyAsh facilities in Bakersfield, California. Also, the last three lines of the invoice show the January 30%, 2017 visit to the Bakersfield facility where CanTech claims to have discussed his findings and delivered the deliverables to JimmyAsh. It is undisputed that the contract was to be performed in Bakersfield, California. IV. THE ALLEGED LIABILITY DID NOT ARISE IN SAN DIEGO AND PLAINTIFF'S RELIANCE ON ANAHEIM V. SUPERIOR COURT IS MISPLACED. Plaintiff in citing Anaheim Extrusion Co. v. Superior Court (1985) 170 Cal. App. 1201, claims that the “when a corporation’s breach is the failure to pay for services, the place of performance is the place where payment was due.” The Anaheim case does not have such a holding that applies to this case. The court in the Anaheim case stated the following: “Anaheim asserts Orange County is "where the contract [was] to be performed" because that is where payments were to be made. Classic argues performance was to be made in Los Angeles because that is where the goods were delivered. In Hale v. Bohannon (1952) 38 Cal. 2d 458 [241 P.2d 4] the Supreme Court addressed this issue. That case involved a contract which did not provide where payments were to be made. The Supreme Court held: "This being the obligation the breach of which is pleaded as the cause of action, ... the place where it was to be performed is the decisive factor insofar as venue is concerned. [Citations.]" (Id, at p. 466, italics added.) In this case the performance allegedly breached was the payment for, not the delivery of, goods. Therefore, the place where payment was to be made is the place "where the contract [was] to be performed" under section 395.5. There still remains the factual question of where the parties intended payment to be made. This is quickly disposed of. The contract is silent, and the only evidence in the record indicates payments had always been received at Anaheim's offices in Orange County in the past. Classic presented no evidence on the issue, and therefore did not carry its burden of showing [170 Cal. App. 3d 1204] venue was improper on all section 395.5 grounds.” CANTECH INDUSTRIES v. JIMMYASH REPLY TO OPPOSITION TO MOTION TO CHANGE VENUE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As is clear from the above, the court in the Anaheim only resolved the factual question of where the parties intended payments to be made by looking at where they had historically made payments. That is inapplicable here since no payment has ever been made to CanTech. Additionally, there is nothing in either the Consulting Agreement (Exhibit 2 to Ahmadi Decl), CanTech Proposal (Exhibit 4 to Ahmadi Decl), nor the Invoice (Exhibit 6 to Ahmadi Decl) that states that the payments were to be made to an address in San Diego. The Invoice (Exhibit 6) only states “Please make checks payable to CanTech Energy, LLC”, an entity that does not exist. It is also noteworthy that Mr. Ahmadi (principal of CanTech) signed a VISITOR’S ACKNOWLEDGMENT on March 31, 2017 that he has attached to his declaration as last page of Exhibit 2. This agreement signed by Plaintiff establishes that CanTech intended to have all work performed in Bakersfield. The proper venue under can only be Los Angeles or Kern County and not San Diego County. V. THE COURT SHOULD ORDER PAYMENT OF ATTORNEY FEES AND COSTS SINCE PLAINTIFF DID NOT ACT IN GOOD FAITH The plaintiff did not act in good faith in filing this action in San Diego and in failing to respond to Defendnat’s counsel until 10:48 pm on the night before the opposition to this motion was due. Mr. Golub acknowledges in paragraph 7 of this declaration that he received Mr. Roshan-Zamir’s email of November 13, 2018. He then states “I have since provided this information to Mr. Roshan-Zamir.” Mr. Golub fails to state that his emails were sent the day before the opposition was due. He also intentionally fails to attach the exchange of emails on January 10" and 11% that show the exchange. 1 have attached them hereto as “Exhibit B.” CANTECH INDUSTRIES v. JIMMYASH REPLY TO OPPOSITION TO MOTION TO CHANGE VENUE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, not only was an offer to stipulate to change venue reasonably made and rejected, but the Plaintiffs knew or should have known, when selecting venue, they should have chosen Kern County. Plaintiff’s counsel never responded to the request for change of venue and instead ignored emails and at least four (4) telephone messages left for him. See Decl. of Perry Roshan-Zamir. Based on all these facts, the motion for an order transferring action to the proper court should be granted and monetary sanctions should be ordered against Plaintiff and in Defendant’s favor as the prevailing party in the amount of $7,495.00. Dated: January 16", 2018 2% yi 5 Perr} oshan-Zamir Attorney for Defendant CANTECH INDUSTRIES v. JIMMYASH REPLY TO OPPOSITION TO MOTION TO CHANGE VENUE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JAMSHID ASHOURIAN I, JAMSHID ASHOURIAN, DECLARES AS FOLLOWS: 1. 1am the Chief Executive Officer of Defendant JIMMY ASH, LLC. (“JIMMYASH”), and make this declaration on behalf of defendant hereof. I know the following facts of my own personal knowledge and would and could testify competently thereto is called as a witness. JIMMYASH’s principal place of business is in the City of Bakersfield, Kern County. The brain center of IMMYASH is located in Los Angeles County. JIMMY ASH has no operation in San Diego. [ do not live in Beverly Hills, but live in Santa Monica, California. 4. The document labeled VISITOR LOG/SIGN IN SHEET is the true and correct copy of the visitor log of JimmyAsh’s facilites in Bakersfield. 9 w o Individuals entering the facility must sign the sign in sheet before entering. The log shows that Mr. Ahmadi personally visited the facility in Kern County on January 10, 2017 and January 30, 2017. w n Therefore, defendant respectfully requests that the court order the case transferred from San Diego County to Los Angeles County or alternatively to Kern County. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and would and could testify competently thereto if called as a witness. Executed this day the 16th of January , 2019, in Los A G@zgles, California. ST EN Jamshid Ashourian CANTECH INDUSTRIES v. IMMYASH REPLY TO OPPOSITION TO MOTION TO CHANGE VENUE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF PERRY ROSHAN-ZAMIR PERRY ROSHAN-ZAMIR DECLARES AS FOLLOWS: I. I am an attorney at law duly admitted to practice law in the State of California. I am counsel for IMMYASH, LLC (“JIMMY ASH”), in the above entitled action. 2. I know the following facts of my own personal knowledge and would and could testify competently thereto if called as a witness. 3. On or about January 10%, 2019 at about 10:48pm, I received the email attached as Exhibit “B” from Mr. Golub. Iresponded to the same on January 11, 2019 at 8:43 am. Mr. Golub did not attach either email to his opposition. 4. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed this day the 16th of January, 2018 in Santa Monica, PoriR 5s PerryR oshan- Zamir California. CANTECH INDUSTRIES v. JIMMYASH REPLY TO OPPOSITION TO MOTION TO CHANGE VENUE EXHIBIT A 220010 L "234 | Pape 346 | Tom H sli] 191k hia \ cae Vy i/ a Bane i BEmige peg VE ; wi Wlaus 01 KS L=1547 Land Te | 45.4 rn [oo Sl jr] |g ee 1-17-17 | Qubrel rash) hia 1g ls. a 1-2e13 | UR ea \-23-0F | DAE Yue 1-23-17 | (dps Klaseat [ [2317 | Mplur | lo VEY UVicde ce WIS [17 |G Li 2 £3 Ro psy!) : -Z & = 3 { 2. 7p 30-I | Fon nuit, 1235-17 | ARRMANLS (XE [Ze 12 0NNIZD Alina VISTOR LOG/ SIGN IN S . i Covers, EE MAM ecligp/cap Karate clyascel fai Fiaeton] Cal Roller CETe. CANTCLHE 4 — KAMAN —T=C | SmcC LSE Cer Ji T Caveat pn SELF SUNG AQ. Eva on oF PAA (~ ALNET | et HEET 1 [IME IN | TIMI i ! 2100 l4ro0 | ¢: fio | ed Cc N a2 LO D HO |W10 | Scott oe oo 3:00. | “afm | opr] 320A | 850 G25 | 100s” \‘Yo Zh, Soo & g boa ot er Fe the ienz.e Hue \C 4:05 9520 | Pri HebonB3i€ - 3 pre 1B 1480 da Ye [Cele l; 00 Are (Lett 21% “J AMS HD 257 f 0 Il-30AM | Zo 1 qro0 | Gis. ETT: 170. /0:00 eek _— F520 10:60 | Peye A. frenz« [2'wo f [luo | lauy [ete EXHIBIT B Wednesday, January 16, 2019 at 4:59:22 PM Pacific Standard Time Subject: Re: CanTech v JimmyAsh - Request to Change Venue Date: Friday, January 11, 2019 at 8:43:01 AM Pacific Standard Time From: Perry Roshan-Zamir To: Mitch Golub CC: LOGA Admin BCC: Priority: High Mitch, | can only assume that you have sent this email last night, approximately TWO MONTHS after my meet and confer attempt, so that you would have something to attach to your opposition to the motion to change venue due today. Please make sure you attach this response to your email to your opposition for completeness. The purpose of meeting and conferring with you was not to create fabricated record, but to try to resolve the issues in the motion. You elected not to respond to me until after | filed my motion and when your opposition is due. This is not in good faith. As stated in my motion with authority, a contract is entered into where the last act that forms the contract is done. In this case both contracts where counter-signed by my client in Santa Monica, California. It doesn’t matter where your client signed them, since my client would have to have counter-signed them to form a contract and it is that last act that forms one. The work was to be performed in Bakersfied as evidenced by the contract and even your client’s invoice. The invoice clearly shows that all of the meetings were to be in Bakersfield. The email from Mr. McKenzie is clear that it requires a PO Agreement to be signed before the work is approved. Neither your client nor my client signed a PO agreement and no work was therefore authorized. Finally, as to the case you have cited in your email (Anaheim Extrusion Co. V Superior Court (1985) 170 Cal. App 1201), it is completely inapplicable to the facts of this case. In that case, the court noted that there were payments made by the defendant to plaintiff and the court used that fact as evidence of where the payments were supposed to be made. The court stated: “There still remains the factual question of where the parties intended payment to be made. This is quickly disposed of. The contract is silent, and the only evidence in the record indicates payments had always been received at Anaheim's offices in Orange County in the past.” Here, the contract is silent on where the payments were supposed to be made and there were no payments actually made to indicate otherwise. This case does not help your cause one bit since there is no evidence that the payments were supposed to be made in Vista. My client believes that the payments (if any where ever due) were to be made in Bakersfield. | trust you will add this to your opposition so as not to embarrass yourself when | bring it up to the court’s attention in my reply. Perry Roshan-Zamir perry@perry.law 2530 Wilshire Blvd., Third Floor Page 1 of 4 Santa Monica, CA 90403 Tel (310) 582-1993 Cel (310) 420-4000 Fax (310) 582-1994 From: Mitch Golub Date: Thursday, January 10, 2019 at 10:48 PM To: Perry Roshan-Zamir Cc: LOGA Admin Subject: RE: CanTech v JimmyAsh - Request to Change Venue Perry Thank you for your email. Unfortunately, there are numerous inaccuracies contained within your email regarding the transaction between our clients. | assume this is due to the persons who were involved on behalf of JimmyAsh, Pete McKenzie, the Director of Operations, and Gaby Beasley, the plant manager, no longer working for the company. Venue is proper in San Diego because the relevant contract was made here, the contract was performed in Vista, CA, and the breach occurred in Vista/San Diego. On January 9, 2017, Pete McKenzie, the former Director of Operations for JimmyAsh, sent a Consulting NDA Agreement to Majid Ahmadi of CanTech at his office in Vista, CA. Mr. Ahmadi signed this Consulting NDA Agreement, personally, and on behalf of CanTech, at his desk in Vista, and emailed it back to Mr. McKenzie. On January 17, 2017 Mr. McKenzie emailed to CanTech, in Vista, the fully executed version of the Consulting NDA Agreement. Due to a drafting error by JimmyAsh the Consulting NDA Agreement had to be resigned. The revised version of the Consulting NDA Agreement was emailed to CanTech at its Vista office on February 14,2017. CanTech signed the revised document in Vista and emailed its signature on March 13, 2017. On May 2, 2017, JimmyAsh emailed to CanTech in Vista, the fully executed Agreement. No version of the Agreement was ever signed and delivered by Mr. Ahmadi to JimmyAsh in Bakersfield. As you are aware, Paragraph 2 of the Consulting NDA Agreement required “mutually agreed upon proposals” for any payment. On January 18, 2017, CanTech emailed to Pete McKenzie of JimmyAsh its proposal to provide Computational Fluid Dynamic Simulation of hot air flow inside of existing Potato Chips Dryer of JimmyAsh. The work in this proposal was anticipated to be done, and, in fact, was done, on CanTech’ s computers at their offices in Vista, CA. On January 23, 2017, Mr. McKenzie sent an email to CanTech in Vista, CA, accepting the proposal. Itis the agreement on this proposal, and JimmyAsh’ s failure to pay for the work performed under this proposal that is the basis for this litigation. Finally, as set forth in Anaheim Extrusion Co. V Superior Court (1985) 170 Cal. App 1201, the contract is to be performed where the payments are to be received. The payments were to be received by CanTech at its Vista, CA office. The failure to make the payments due under the accepted proposal constitutes the breach. This also occurred in Vista, CA. Page 2 of 4 Let me know if you would like to discuss this further. Mitch Mitchell S. Golub, Esq. LAW OFFICES OF GOLUB & ASSOCIATES, PLC 12707 High Bluff Drive, Suite 200 San Diego, California 92130 858-457-0300 Voice 858-457-0301 Facsimile mitch@golublawfirm.com This email message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. From: Perry Roshan-Zamir Sent: Tuesday, November 13,2018 11:10 AM To: Mitch Golub Cc: LOGA Admin Subject: Re: CanTech v JimmyAsh - Request to Change Venue Mitch, The purpose of this letter is to request that your client stipulate to change of venue from San Diego to Los Angeles or Bakersfield where the proper venue lies for this case. As we briefly discussed in our conversation, in California there are five potential counties of proper venue for contract actions against a corporation: (1) where the contract is made; (2) where the contract is to be performed; (3) where the obligation or liability arises; (4) where the breach occurs; (5) where the principal place of business of such corporation is situated. (Cal. Const., art. XII, § 16; 1 Chadbourn, Grossman, Van Alstyne, Cal. Pleading, § 334.) San Diego is not the basis for venue under any of the above potential counties. 1. where the contract is made — The parties entered into the contract in Bakersfield, California where they met for the purpose of entering into the contract. 2. where the contract is to be performed — The contract that you have attached to the complaint makes it clear that all of the products and services to be performed were to be done at the JimmyAsh factory in Bakersfield, California 3. where the obligation or liability arises — Likewise, the obligation and liability, if any arose in Bakersfield. There is no basis for San Diego. 4. where the breach occurs — Our client alleges there is no breach, but even if there was one, it would have had to occur either is Los Angeles County or Bakersfield 5. where the principal place of business of such corporation is situated — JimmyAsh’s factory is located in Bakersfield and its ‘brain center’ in Los Angeles. Under this category, venue would be proper either in Los Angeles or Bakersfield, but not San Diego. Additionally, pursuant to CCP 396b, the court may change venue for the convenience of witnesses. All non- party witnesses in this case are in Bakersfield and that is the only venue where it would be convenient to witnesses. | therefore, request that you stipulate to changing the venue to either Los Angeles or Bakersfield. | prefer Los Angeles but will stipulate to either. Page 3 of 4 | ask that you advise me of your decision no later than close of business Thursday, November 15, 2018. We reserve all rights. Perry Roshan-Zamir perry@perry.law 2530 Wilshire Blvd., Third Floor Santa Monica, CA 90403 Tel (310) 582-1993 Cel (310) 420-4000 Fax (310) 582-1994 Page 4 of 4 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 2530 Wilshire Blvd., 3rd Floor, Santa Monica, California 90403. On January 17, 2018, I served the foregoing document described as REPLY TO MOTION TO CHANGE VENUE on the interested parties in this action by placing [ | the original [X] a true copy thereof enclosed in sealed envelopes addressed as follows: Mitchell S. Golub Law Offices of Mitchell S. Golub & Associates 12707 High Bluff Dr. #200 San Diego, CA 92130 DX] (OFFICE MAIL) I am readily familiar with my firm's or other business’ practice for the collection and processing of correspondence for mailing with the United States Postal Service. In the ordinary course of business, correspondence would be deposited with the United States Postal Service that same day. I placed true copies of the above-entitled document in envelopes addressed as shown above and sealed and placed them for collection and mailing on the date stated below, following ordinary business practices. (C.C.P. §1013a(3)) [1(BY E-MAIL) by email to the attorney of record [1 (BY CERTIFIED MAIL) I caused such envelope with postage thereon fully prepaid, via certified mail -- return receipt requested, to be placed in the United States mail at Santa Monica, California. Executed on January 17, 2018, at Santa Monica, California. IX] (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Goal 5 ~—— Signatiwé =