Apex Compounding Pharmacy Llc v. Efax Corporate et al

NOTICE OF MOTION AND MOTION to Dismiss Complaint Pursuant to FRCP 12

C.D. Cal.August 16, 2016

N E M E C E K & C O L E A P R O F E S S IO N A L C O R P O R A T IO N 15 26 0 V E N T U R A B O U LE V A R D , S U IT E 9 20 , S H E R M A N O A K S , C A LI F O R N IA 9 14 03 -5 34 4 T E LE P H O N E ( 81 8) 7 88 -9 50 0 F A C S IM IL E ( 81 8) 5 01 -0 32 8 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 JONATHAN B. COLE (SBN 70460) jcole@nemecek-cole.com MICHAEL W. FEENBERG (SBN 185450) mfeenberg@nemecek-cole.com VIKRAM SOHAL (SBN 240251) vsohal@nemecek-cole.com NEMECEK & COLE A Professional Corporation 15260 Ventura Boulevard, Suite 920 Sherman Oaks, California 91403-5399 (818) 788-9500 Telephone (818) 501-0328 Facsimile Attorneys for Defendants eFAX CORPORATE; j2 CLOUD SERVICES, INC.; and j2 GLOBAL, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION APEX COMPOUNDING PHARMACY, LLC, Plaintiff, v. eFAX CORPORATE; j2 CLOUD SERVICES, INC.;and j2 GLOBAL, INC., Defendants. _______________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CV16-05165 JAK (JPRx) NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) [Filed concurrently with the Memorandum of Points and Authorities; Declaration of Vikram Sohal; and [Proposed] Order] Date: November 7, 2016 Time: 8:30 A.M. Judge: Hon. John A. Kronstadt Crtrm.: 750 1 2700001P.09 Notice.wpd NOTICE OF MOTION Case 2:16-cv-05165-JAK-JPR Document 20 Filed 08/16/16 Page 1 of 3 Page ID #:239 N E M E C E K & C O L E A P R O F E S S IO N A L C O R P O R A T IO N 15 26 0 V E N T U R A B O U LE V A R D , S U IT E 9 20 , S H E R M A N O A K S , C A LI F O R N IA 9 14 03 -5 34 4 T E LE P H O N E ( 81 8) 7 88 -9 50 0 F A C S IM IL E ( 81 8) 5 01 -0 32 8 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 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that, on November 7, 2016, at 8:30 a.m., or as soon thereafter as the matter may be heard in Courtroom 750 of the above-captioned Court located at 255 East Temple Street, Los Angeles, California 90012-3332, Defendants eFAX CORPORATE; j2 CLOUD SERVICES, INC.; and j2 GLOBAL, INC. (collectively, “j2") will move to dismiss the Compliant of Plaintiff APEX COMPOUNDING PHARMACY, LLC (“Apex”) with prejudice. This motion is made pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and is based on the grounds that the Complaint fails to state a claim upon which relief can be granted. Specifically, Apex’s fraudulent misrepresentation cause of action is barred by the “economic-loss doctrine.” Further, even if a tort the claim was proper, it is not, Apex failed to plead fraud with the required particularity. Finally, the second cause of action for breach of contract fails because Apex did not plead it with the required specificity. Among other things, the Complaint does not identify the alleged contract as being written, oral, or implied. As detailed in the attached Declaration of Vikram Sohal, notwithstanding j2 counsel’s good faith efforts, the parties did not engage in the conference of counsel as required by Local Rule 7-3. This motion is based on this Notice of Motion and Motion; the accompanying Memorandum of Points and Authorities and Declaration of Vikram Sohal; and the records and pleadings on file herein, and any other evidence and argument as may be presented. NEMECEK & Cole Dated: August 16, 2016 By: /s/Vikram Sohal VIKRAM SOHAL, ESQ. Attorneys for Defendants eFax Corporate; j2 Cloud Services, Inc. And j2 Global, Inc. 2 2700001P.09 Notice.wpd NOTICE OF MOTION Case 2:16-cv-05165-JAK-JPR Document 20 Filed 08/16/16 Page 2 of 3 Page ID #:240 N E M E C E K & C O L E A P R O F E S S IO N A L C O R P O R A T IO N 15 26 0 V E N T U R A B O U LE V A R D , S U IT E 9 20 , S H E R M A N O A K S , C A LI F O R N IA 9 14 03 -5 34 4 T E LE P H O N E ( 81 8) 7 88 -9 50 0 F A C S IM IL E ( 81 8) 5 01 -0 32 8 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 CERTIFICATE OF SERVICE The undersigned, counsel for Defendants eFax Corporate; j2 Cloud Services, Inc., and j2 Global, Inc. , hereby certifies that a true and correct copy of the foregoing document was made available for viewing and downloading through the Court’s CM-ECF system to all counsel of record who are registered to receive a Notice of Electronic Filing for this case. I declare under the penalty of perjury of the laws of the United States that the foregoing is true and correct. Executed on this 16th day of August 2016 at Sherman Oaks, California. /S/Vikram Sohal . Vikram Sohal 3 2700001P.09 Notice.wpd NOTICE OF MOTION Case 2:16-cv-05165-JAK-JPR Document 20 Filed 08/16/16 Page 3 of 3 Page ID #:241 N E M E C E K & C O L E A P R O F E S S IO N A L C O R P O R A T IO N 15 26 0 V E N T U R A B O U LE V A R D , S U IT E 9 20 , S H E R M A N O A K S , C A LI F O R N IA 9 14 03 -5 34 4 T E LE P H O N E ( 81 8) 7 88 -9 50 0 F A C S IM IL E ( 81 8) 5 01 -0 32 8 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 JONATHAN B. COLE (SBN 70460) jcole@nemecek-cole.com MICHAEL W. FEENBERG (SBN 185450) mfeenberg@nemecek-cole.com VIKRAM SOHAL (SBN 240251) vsohal@nemecek-cole.com NEMECEK & COLE A Professional Corporation 15260 Ventura Boulevard, Suite 920 Sherman Oaks, California 91403-5399 (818) 788-9500 Telephone (818) 501-0328 Facsimile Attorneys for Defendants eFAX CORPORATE; j2 CLOUD SERVICES, INC.; and j2 GLOBAL, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION APEX COMPOUNDING PHARMACY, LLC, Plaintiff, v. eFAX CORPORATE; j2 CLOUD SERVICES, INC.;and j2 GLOBAL, INC., Defendants. _______________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CV16-05165 JAK (JPRx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS Date: November 7, 2016 Time: 8:30 A.M. Judge: Hon. John A. Kronstadt Crtrm.: 750 1 2700001P.08 Memo.wpd MEMORANDUM Case 2:16-cv-05165-JAK-JPR Document 20-1 Filed 08/16/16 Page 1 of 9 Page ID #:242 N E M E C E K & C O L E A P R O F E S S IO N A L C O R P O R A T IO N 15 26 0 V E N T U R A B O U LE V A R D , S U IT E 9 20 , S H E R M A N O A K S , C A LI F O R N IA 9 14 03 -5 34 4 T E LE P H O N E ( 81 8) 7 88 -9 50 0 F A C S IM IL E ( 81 8) 5 01 -0 32 8 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 MEMORA NDUM OF POINTS AND AUTHORITIES Defendants eFAX CORPORATE; j2 CLOUD SERVICES, INC.; and j2 GLOBAL, INC. (collectively, “j2") respectfully submit this Memorandum of Points and Authorities in support of their Motion to Dismiss the First and Second Causes of Action asserted in the Complaint filed by Plaintiff APEX COMPOUNDING PHARMACY, LLC (“Apex”). I. INTRODUCTION This case arises out of an arm’s-length contract between sophisticated entities - namely, Apex and j2 - whereby the latter agreed to provide electronic facsimile services to the former in exchange for a monthly fee. Apex contends that it agreed to switch from its prior efax service provider to j2 based on the agreement by j2 to provide “better service for a reasonable rate.” Apex alleges that j2 did not fulfill that promise and it “did not provide services at or near its promised performance.” In its Compliant, through the use of colorful and evocative (if legally irrelevant) allegations, Apex seeks to turn an ordinary contract dispute into a tort claim for “fraudulent misrepresentation.” It does so in a thinly-veiled attempt to heighten the stakes and to seek recovery of amounts not available in the contract realm. Apex is not an alchemist, however, and its blatantly overreaching tort cause of action is legally defective. Specifically, the first cause of action for fraudulent misrepresentation fails because Apex did not - and cannot - allege facts sufficient to support the element of legal duty. Even if a tort claim was proper (it is not), Apex failed to plead fraud with the required particularity. The second cause of action for breach of contract also fails because it is not plead with the required specificity. Among other things, Apex failed to allege whether the contract it accuses j2 of breaching was written, oral, or implied. j2 respectfully requests the Court to grant this motion and dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. // // 2 2700001P.08 Memo.wpd MEMORANDUM Case 2:16-cv-05165-JAK-JPR Document 20-1 Filed 08/16/16 Page 2 of 9 Page ID #:243 N E M E C E K & C O L E A P R O F E S S IO N A L C O R P O R A T IO N 15 26 0 V E N T U R A B O U LE V A R D , S U IT E 9 20 , S H E R M A N O A K S , C A LI F O R N IA 9 14 03 -5 34 4 T E LE P H O N E ( 81 8) 7 88 -9 50 0 F A C S IM IL E ( 81 8) 5 01 -0 32 8 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 II. SUMMARY OF ALLEGATIONS1 In its Complaint, Apex contends that it is a “pharmaceutical compounding company specializing in providing custom pharmaceutical compounds through utilization of highest quality ingredients and latest technology.” (Complaint, at ¶ 12.) Apex claims that many of its customer orders are submitted via fax. (Complaint, at ¶¶ 19-20.) Apex alleges that it switched over to j2’s eFax Service after it was assured “better service for a reasonable rate.” (Complaint, at ¶ 23.) Apex contends that the eFax Service experienced “dropped, unanswered, disconnected, or failed fax transmissions” that “resulted in lost sale[s] for Apex.” (Complaint, at ¶¶ 26-28.) Based on the foregoing allegations, the Complaint asserts two causes of action for fraudulent misrepresentation and breach of contract against j2 and seeks over $1,500,000 in “damages.” (Complaint, at ¶¶ 29-34, 35-42.) III. STANDARD GOVERNING A RULE 12(b)(6) MOTION “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). The factual matter “must be enough to raise a right to relief above the speculative level . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Under this “plausibility” standard, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” are insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court considering a motion to dismiss need not accept a plaintiff’s legal conclusions as true, id., nor must a court presume the accuracy of legal conclusions that are couched as factual allegations. See Twombly, 550 U.S. at 555. 1This introduction and summary of the Complaint is for the convenience of the Court in ruling on the Motion to Dismiss. The “facts” stated in the introduction and summary are based on Apex’s allegations in the Complaint. Their recitation herein is not intended - and should not be construed - as reflecting j2's view of the actual facts, or as a binding statement or admission by j2 of any of the “facts” stated herein or alleged by Apex in the Complaint. 3 2700001P.08 Memo.wpd MEMORANDUM Case 2:16-cv-05165-JAK-JPR Document 20-1 Filed 08/16/16 Page 3 of 9 Page ID #:244 N E M E C E K & C O L E A P R O F E S S IO N A L C O R P O R A T IO N 15 26 0 V E N T U R A B O U LE V A R D , S U IT E 9 20 , S H E R M A N O A K S , C A LI F O R N IA 9 14 03 -5 34 4 T E LE P H O N E ( 81 8) 7 88 -9 50 0 F A C S IM IL E ( 81 8) 5 01 -0 32 8 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 IV. LEGAL ARGUMENT AND AUTHORITY A. Choice Of Law This is a diversity action. (Complaint, at ¶¶ 9-11.) The Complaint does not contain allegations of any forum selection clause in the purported contract alleged therein. Thus, the laws of the forum state (California) control the substantive issues surrounding Apex’s fraudulent misrepresentation and breach of contract causes of action. See Caesar Elecs. Inc. v. Andrews, 906 F.2d 287, 290 n.3 (9th Cir. 1990). B. The First Cause Of Action For Fraudulent Misrepresentation Fails As A Matter of Law (1) An Alleged Breach Of Contract Cannot Form The Basis Of Apex’s Tort Claim It is settled law in California that, where the parties’ relationship arises out of a contract, the duty that gives rise to liability in tort must be independent of that contract. See Erlich v. Menezes, 21 Cal. 4th 543, 550-51 (1999); Aas v. Superior Court,24 Cal. 4th 627, 643 (2000). “Conduct amounting to a breach of contract becomes tortious only when it also violates an independent duty arising from the principles of tort law.” Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal.4th 503, 515 (1994) (emphasis added). The law generally draws no distinction between good and bad motives for breaching a contract. Id. at 516. Without the required additional breach of a trot law duty, a bad faith breach of contract, regardless of the nature of the bad faith breach, does not constitute a tort. See Freeman & Mills, Inc. v. Blecher Oil Co., 11 Cal. 4th 85, 102-03 (1995). Indeed, even if the breach of contract is willful or fraudulent, a plaintiff is still not permitted to recover tort damages, including punitive damages, for such breach. See, e.g., Dryden v. Tri-Valley Growers, 65 Cal. App. 3d 990, 999; Arntz Contracting Co. v. St. Paul Fire and Marine Ins. Co., 47 Cal. App. 4th 464, 477. The foregoing principles are captured by the “economic loss doctrine” which is well-accepted by the California courts. See, e.g., United Guaranty Mortgage Indem. v. 4 2700001P.08 Memo.wpd MEMORANDUM Case 2:16-cv-05165-JAK-JPR Document 20-1 Filed 08/16/16 Page 4 of 9 Page ID #:245 N E M E C E K & C O L E A P R O F E S S IO N A L C O R P O R A T IO N 15 26 0 V E N T U R A B O U LE V A R D , S U IT E 9 20 , S H E R M A N O A K S , C A LI F O R N IA 9 14 03 -5 34 4 T E LE P H O N E ( 81 8) 7 88 -9 50 0 F A C S IM IL E ( 81 8) 5 01 -0 32 8 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 Countrywide Fin. Corp., 660 F.Supp.2d 1163, 1179-1186 (C.D. Cal. 2009) (providing an in-depth discussion of California’s economic loss doctrine). California, indeed, is considered to be the birthplace of the economic loss doctrine. See Seeley v. White Motor Co., 63 Cal. 2d 9 (1965).2 In the Complaint, Apex contends that it entered into a contract with j2 whereby the latter “agreed to provide consistent, and reasonable uninterrupted electronic fax services.” (Complaint, at ¶ 38.) Apex alleges that j2 breached that agreement “by failing to provide adequate and reasonably uninterrupted electronic fax services.” (Complaint, at ¶ 40.) In its purported tort cause of action for fraudulent misrepresentation, all Apex has done is to take j2's alleged breach of contract and added motive and intent allegations. Apex contends that j2 “misrepresented its ability to provide fax services to Apex at an acceptable and reasonable minimum of dropped, unanswered, disconnected, or failed fax transmissions.” (Complaint, at ¶ 29.) It further contends that “j2 knew, at the time it made the representations, or at least in reckless disregard of their truth or falsity, that it could not provide the service level it promised to Apex.” (Complaint, at ¶ 31.) Apex concludes that it “reasonably relied” upon j2's “false” and “fraudulent” misrepresentations that it would provide fax services at acceptable levels and was thereby harmed by j2's “fraudulent misrepresentations.” (Complaint, at ¶¶ 32-34.) However, despite these added allegations as to j2's purported motive and intent, Apex’s tort claim only restates a claim based on contract. The dispute alleged in the Complaint is centrally and inextricably tied to the interpretation and performed of the alleged contract. Under such circumstances, Apex has not alleged (and cannot allege) the required breach of an independent tort duty. 2 California courts recognize one general exception to this rule: the breach of insurance policies. See Cates Constr., Inc. v. Talbot Partners, 221 Cal. 4th 28, 43 (1999). This exception is recognized, because insurance policies, unlike most other contracts, are “characterized by elements of adhesion, public interest and fiduciary responsibility.” Id. at 44. Outside the insurance policy context, courts should exercise great care in extending this exception to other types of contracts. Id. at 46. In the commercial context present here, Apex has not alleged (and cannot allege) any justification for expanding this very narrow exception. 5 2700001P.08 Memo.wpd MEMORANDUM Case 2:16-cv-05165-JAK-JPR Document 20-1 Filed 08/16/16 Page 5 of 9 Page ID #:246 N E M E C E K & C O L E A P R O F E S S IO N A L C O R P O R A T IO N 15 26 0 V E N T U R A B O U LE V A R D , S U IT E 9 20 , S H E R M A N O A K S , C A LI F O R N IA 9 14 03 -5 34 4 T E LE P H O N E ( 81 8) 7 88 -9 50 0 F A C S IM IL E ( 81 8) 5 01 -0 32 8 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 Motive and intent being categorically irrelevant, and since no legally sufficient tort cause of action has been or could be stated, j2 respectfully requests that the Court grant its Motion to Dismiss as to the first cause of action for “fraudulent misrepresentation” with prejudice. (2) Even If The Fraud Cause Of Action Was Proper (It Is Not), Apex Failed To Plead It With The Required Particularity Rule 9 of the Federal Rules of Civil Procedure requires that a fraud cause of action must “state with particularity the circumstances constituting fraud . . .” Fed. R. Civ. Proc. 9(b). This requires a plaintiff to plead, with particularity, the time, place, and specific content of the false representations or omissions in question, as well as the identity of the persons making them. Schweiber Distrib. v. Serv. Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986); Wool v. Tandem, Inc., 818 F.2d 1433, 1439 (9th Cir. 1987). Here, the Complaint fails to meet the foregoing requirements. Apex did not provide any details regarding the substance of the alleged fraudulent misrepresentations, the identity of person or persons who made the alleged misrepresentations, the identity of person or persons to whom the alleged misrepresentations were made, the date(s) when the alleged misrepresentations were made, etc. Without the foregoing information, Apex’s fraud cause of action fails. B. Apex’s Breach Of Contract Cause Of Action Is Not Plead With The Required Specificity Under Rule 8(a) of the Federal Rules of Civil Procedure, the complaint must statement a claim with sufficient details to “give the defendant fair notice of what the . . . claim is and the ground upon which it rests.” ExxonMobil Oil Corp. v. Gasprom, Inc., 462 F. App’x 737, 738 (9th Cir. 2011). To allege a breach of contract claim, the complaint must indicate on its face whether the contract is written, oral, or implied by conduct. Castro v. JPMorgan Chase Bank, N.A., 14-CV-01539, 2014 U.S. Dist. LEXIS 89862, at *6 (N.D. Cal. June 30, 2014). Further, a contract should be pleaded verbatim or according to its legal intent and effect. 6 2700001P.08 Memo.wpd MEMORANDUM Case 2:16-cv-05165-JAK-JPR Document 20-1 Filed 08/16/16 Page 6 of 9 Page ID #:247 N E M E C E K & C O L E A P R O F E S S IO N A L C O R P O R A T IO N 15 26 0 V E N T U R A B O U LE V A R D , S U IT E 9 20 , S H E R M A N O A K S , C A LI F O R N IA 9 14 03 -5 34 4 T E LE P H O N E ( 81 8) 7 88 -9 50 0 F A C S IM IL E ( 81 8) 5 01 -0 32 8 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 Id. at *7. Here, the Complaint does not state whether the alleged contact that forms the basis of Apex’s breach of contract cause of action is written, oral, or implied. (See Complaint, at ¶¶ 35-42.) Further, other than mere conclusory allegations, the Complaint does not provide any details whatsoever regarding the terms of the alleged contract. Apex’s conspicuous refusal to identify the contract alleged in the Complaint was explained in j2's Reply Brief in support of its Motion to Transfer Venue as follows: Apex next seeks to turn back the clock on electronic commerce: it suggests that because j2 did not produce a copy of the contract executed by Apex, it cannot prove that Apex ever agreed to the Customer Agreement . . . As an initial matter, if Apex believes (incorrectly) that it physically signed a paper copy of an agreement with j2, it could have attached that agreement to the Complaint and its opposition. Both times, Apex did not do so. If the Customer Agreement is not the controlling agreement at issue, then what is? (Docket Entry No. 10-1 at pg. 6.) To date, Apex has not identified the contract alleged in its Complaint, while continuing to challenge the Customer Agreement as being the contract at issue between the parties. If the Customer Agreement is not the contract at issue in the Complaint, then the Complaint leaves it a mystery as to what the actual contract is and whether said “contract” is written, oral, or implied. Apex’s breach of contract cause of action also fails and should be dismissed pursuant to Rule 12(b)(6). V. CONCLUSION Based on the well-accepted “economic loss doctrine,” j2 respectfully requests that the Court dismiss Apex’s first cause of action for fraudulent misrepresentation with prejudice. Also, since Apex has failed to identify the contract at issue in the Complaint that it filed over a year ago, j2 respectfully requests that the second cause of action should 7 2700001P.08 Memo.wpd MEMORANDUM Case 2:16-cv-05165-JAK-JPR Document 20-1 Filed 08/16/16 Page 7 of 9 Page ID #:248 N E M E C E K & C O L E A P R O F E S S IO N A L C O R P O R A T IO N 15 26 0 V E N T U R A B O U LE V A R D , S U IT E 9 20 , S H E R M A N O A K S , C A LI F O R N IA 9 14 03 -5 34 4 T E LE P H O N E ( 81 8) 7 88 -9 50 0 F A C S IM IL E ( 81 8) 5 01 -0 32 8 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 also be dismissed with prejudice. NEMECEK & Cole Dated: August 16, 2016 By: /s/Vikram Sohal VIKRAM SOHAL, ESQ. Attorneys for Defendants eFax Corporate; j2 Cloud Services, Inc. And j2 Global, Inc. 8 2700001P.08 Memo.wpd MEMORANDUM Case 2:16-cv-05165-JAK-JPR Document 20-1 Filed 08/16/16 Page 8 of 9 Page ID #:249 N E M E C E K & C O L E A P R O F E S S IO N A L C O R P O R A T IO N 15 26 0 V E N T U R A B O U LE V A R D , S U IT E 9 20 , S H E R M A N O A K S , C A LI F O R N IA 9 14 03 -5 34 4 T E LE P H O N E ( 81 8) 7 88 -9 50 0 F A C S IM IL E ( 81 8) 5 01 -0 32 8 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 CERTIFICATE OF SERVICE The undersigned, counsel for Defendants eFax Corporate; j2 Cloud Services, Inc., and j2 Global, Inc. , hereby certifies that a true and correct copy of the foregoing document was made available for viewing and downloading through the Court’s CM-ECF system to all counsel of record who are registered to receive a Notice of Electronic Filing for this case. I declare under the penalty of perjury of the laws of the United States that the foregoing is true and correct. Executed on this 16th day of August 2016 at Sherman Oaks, California. /S/Vikram Sohal . Vikram Sohal 9 2700001P.08 Memo.wpd MEMORANDUM Case 2:16-cv-05165-JAK-JPR Document 20-1 Filed 08/16/16 Page 9 of 9 Page ID #:250 N E M E C E K & C O L E A P R O F E S S IO N A L C O R P O R A T IO N 15 26 0 V E N T U R A B O U LE V A R D , S U IT E 9 20 , S H E R M A N O A K S , C A LI F O R N IA 9 14 03 -5 34 4 T E LE P H O N E ( 81 8) 7 88 -9 50 0 F A C S IM IL E ( 81 8) 5 01 -0 32 8 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 JONATHAN B. COLE (SBN 70460) jcole@nemecek-cole.com MICHAEL W. FEENBERG (SBN 185450) mfeenberg@nemecek-cole.com VIKRAM SOHAL (SBN 240251) vsohal@nemecek-cole.com NEMECEK & COLE A Professional Corporation 15260 Ventura Boulevard, Suite 920 Sherman Oaks, California 91403-5399 (818) 788-9500 Telephone (818) 501-0328 Facsimile Attorneys for Defendants eFAX CORPORATE; j2 CLOUD SERVICES, INC.; and j2 GLOBAL, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION APEX COMPOUNDING PHARMACY, LLC, Plaintiff, v. eFAX CORPORATE; j2 CLOUD SERVICES, INC.;and j2 GLOBAL, INC., Defendants. _______________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CV16-05165 JAK (JPRx) DECLARATION OF VIKRAM SOHAL IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS Date: November 7, 2016 Time: 8:30 A.M. Judge: Hon. John A. Kronstadt Crtrm.: 750 1 2700001P.10 Declaration.wpd DECLARATION OF VIKRAM SOHAL Case 2:16-cv-05165-JAK-JPR Document 20-2 Filed 08/16/16 Page 1 of 5 Page ID #:251 N E M E C E K & C O L E A P R O F E S S IO N A L C O R P O R A T IO N 15 26 0 V E N T U R A B O U LE V A R D , S U IT E 9 20 , S H E R M A N O A K S , C A LI F O R N IA 9 14 03 -5 34 4 T E LE P H O N E ( 81 8) 7 88 -9 50 0 F A C S IM IL E ( 81 8) 5 01 -0 32 8 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 I, VIKRAM SOHAL, declare as follows: 1. I am an attorney at law licensed to practice law in the State of California and before this Court. I am a member of Nemecek & Cole, the attorney of record for Defendants eFAX CORPORATE; j2 CLOUD SERVICES, INC.; and j2 GLOBAL INC. (collectively, “j2"). 2. This case was transferred to the Court on or about July 14, 2016. 3. On July 21, 2016, I called Plaintiff APEX COMPOUNDING PHARMACY’s (“Apex”) counsel, John R. Terpstra, to discuss, among other things, j2's response the Complaint. I was informed by the receptionist that Mr. Terpstra was unavailable and, accordingly, I left a voice message requesting that Mr. Terpstra return my call. I also sent a follow-up email to Mr. Terpstra on the same day, a true and correct copy of which is attached hereto as Exhibit A. 4. I did not receive any response from Mr. Terpstra. 5. On August 4, 2015, I again called Mr. Terpstra and was again informed by the receptionist that he was unavailable. I against left a voice message in which I requested that Mr. Terpstra return my call so that counsel could engage in the required meet and confer for Defendants’ motion to dismiss. I also informed Mr. Terpstra that I was going to wait for 7 days as required under Local Rule 7-3 and if he did not return my call, I was going to move ahead with the filing of Defendants’ motion to dismiss. 6. As of the date of this declaration, I have not received any response from Mr. Terpstra. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 16th day of August 2016 at Sherman Oaks, California. /s/Vikram Sohal Vikram Sohal 2 2700001P.10 Declaration.wpd DECLARATION OF VIKRAM SOHAL Case 2:16-cv-05165-JAK-JPR Document 20-2 Filed 08/16/16 Page 2 of 5 Page ID #:252 EXHIBIT A Case 2:16-cv-05165-JAK-JPR Document 20-2 Filed 08/16/16 Page 3 of 5 Page ID #:253 1 Vikram Sohal From: Vikram Sohal Sent: Thursday, July 21, 2016 9:16 AM To: jterpstra@hinshawlaw.com Cc: Michael Feenberg Subject: Apex Compunding Pharmacy v. j2, et al. John, This is a follow-up to my VM. As I explained, there is no clear authority regarding the timing for a response following a transfer of venue. The leading guide on this subject recommends that counsel make an agreement so as to avoid any confusion/misunderstanding. I propose that we agree to 21 days response deadline (the general time for response following service provided under FRCP 4). The case was transferred to CDC on July 14, which makes August 4, 2016 the response dealine under my proposal. Let me know if you agree to the foregoing. Thanks, Vik Case 2:16-cv-05165-JAK-JPR Document 20-2 Filed 08/16/16 Page 4 of 5 Page ID #:254 N E M E C E K & C O L E A P R O F E S S IO N A L C O R P O R A T IO N 15 26 0 V E N T U R A B O U LE V A R D , S U IT E 9 20 , S H E R M A N O A K S , C A LI F O R N IA 9 14 03 -5 34 4 T E LE P H O N E ( 81 8) 7 88 -9 50 0 F A C S IM IL E ( 81 8) 5 01 -0 32 8 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 CERTIFICATE OF SERVICE The undersigned, counsel for Defendants eFax Corporate; j2 Cloud Services, Inc., and j2 Global, Inc. , hereby certifies that a true and correct copy of the foregoing document was made available for viewing and downloading through the Court’s CM-ECF system to all counsel of record who are registered to receive a Notice of Electronic Filing for this case. I declare under the penalty of perjury of the laws of the United States that the foregoing is true and correct. Executed on this 16th day of August 2016 at Sherman Oaks, California. /S/Vikram Sohal . Vikram Sohal 3 2700001P.10 Declaration.wpd DECLARATION OF VIKRAM SOHAL Case 2:16-cv-05165-JAK-JPR Document 20-2 Filed 08/16/16 Page 5 of 5 Page ID #:255 N E M E C E K & C O L E A P R O F E S S IO N A L C O R P O R A T IO N 15 26 0 V E N T U R A B O U LE V A R D , S U IT E 9 20 , S H E R M A N O A K S , C A LI F O R N IA 9 14 03 -5 34 4 T E LE P H O N E ( 81 8) 7 88 -9 50 0 F A C S IM IL E ( 81 8) 5 01 -0 32 8 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 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION APEX COMPOUNDING PHARMACY, LLC, Plaintiff, v. eFAX CORPORATE; j2 CLOUD SERVICES, INC.;and j2 GLOBAL, INC., Defendants. _______________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CV16-05165 JAK (JPRx) [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Date: November 7, 2016 Time: 8:30 A.M. Judge: Hon. John A. Kronstadt Crtrm.: 750 1 2700001P.11 Order.wpd [PROPOSED] ORDER Case 2:16-cv-05165-JAK-JPR Document 20-3 Filed 08/16/16 Page 1 of 3 Page ID #:256 N E M E C E K & C O L E A P R O F E S S IO N A L C O R P O R A T IO N 15 26 0 V E N T U R A B O U LE V A R D , S U IT E 9 20 , S H E R M A N O A K S , C A LI F O R N IA 9 14 03 -5 34 4 T E LE P H O N E ( 81 8) 7 88 -9 50 0 F A C S IM IL E ( 81 8) 5 01 -0 32 8 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 On _______________________________________, 2016, Defendants eFAX CORPORATE; j2 CLOUD SERVICES, INC.; and j2 GLOBAL, INC.’s (collectively, “Defendants") Motion to Dismiss the Compliant of Plaintiff APEX COMPOUNDING PHARMACY, LLC (“Plaintiff”) came on for hearing in Courtroom 750 of the above- captioned Court, the Honorable John A. Kronstadt presiding. After full consideration of the moving, opposing and reply papers, all related documents thereto, arguments of counsel, and all other matters presented to the Court, the Court finds that: 1. Plaintiff’s First Cause of Action for Fraudulent Misrepresentation is barred by California’s economic-loss doctrine; 2. Even if the First Cause of Action was not so barred, Plaintiff failed to plead fraud with the required particularity; and 3. Plaintiff failed to plead the Second Cause of Action with the required specificity. Accordingly, IT IS HEREBY ORDERED that Defendants’ motion is GRANTED as follows: 1. The First Cause of Action for Fraudulent Misrepresentation is dismissed [with/without] prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6); and 2. The Second Cause of Action for Breach of Contract is dismissed [with/without] prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). IT IS SO ORDERED. Date: _____________________________________ Hon. John A. Kronstadt United States District Judge 2 2700001P.11 Order.wpd [PROPOSED] ORDER Case 2:16-cv-05165-JAK-JPR Document 20-3 Filed 08/16/16 Page 2 of 3 Page ID #:257 N E M E C E K & C O L E A P R O F E S S IO N A L C O R P O R A T IO N 15 26 0 V E N T U R A B O U LE V A R D , S U IT E 9 20 , S H E R M A N O A K S , C A LI F O R N IA 9 14 03 -5 34 4 T E LE P H O N E ( 81 8) 7 88 -9 50 0 F A C S IM IL E ( 81 8) 5 01 -0 32 8 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 CERTIFICATE OF SERVICE The undersigned, counsel for Defendants eFax Corporate; j2 Cloud Services, Inc., and j2 Global, Inc. , hereby certifies that a true and correct copy of the foregoing document was made available for viewing and downloading through the Court’s CM-ECF system to all counsel of record who are registered to receive a Notice of Electronic Filing for this case. I declare under the penalty of perjury of the laws of the United States that the foregoing is true and correct. Executed on this 16th day of August 2016 at Sherman Oaks, California. /S/Vikram Sohal . Vikram Sohal 3 2700001P.11 Order.wpd [PROPOSED] ORDER Case 2:16-cv-05165-JAK-JPR Document 20-3 Filed 08/16/16 Page 3 of 3 Page ID #:258