Reply__to_opposition_to_motion_to_post_bondReplyCal. Super. - 2nd Dist.June 21, 2017Electronically FILED by Superior Court of California, County of Los Angeles on 12/27/2018 02:52 PM Sherri R. Carter, Executive Officer/Clerk of Court, by | . Lara,Deputy Clerk OO 0 J O N nn hk L N = N O N RN RN N N N N N m m m m e m e m e d e d p m GC NN hh A W N R E C Y E N Y R W N = , oO DILIP VITHLANI, SB NO. 199474 LAW OFFICES OF DILIP VITHLANI, A PC, 18000 STUDEBAKER ROAD, SUITE 700 CERRITOS, CA 90703 PHONE: (562) 867-6622 FAX: (562) 867-6624 : Email: dvithlani@icloud.com Attorneys for Defendant Central Ametican Relief Foundation Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT GUILLERMO GOMEZ PICASSO Case No. BC 665813 Plaintiff REPLY OF CENTRAL AMERICAN RELIEF FOUNDATION INC., TO v PLAINTIFFS OPPOSITION TO REQUIRE PLAINTIFF TO POST CENTRAL AMERICAN RELIEF BOND AND TO STAY PENDING FOUNDATION et al. POSTING OF BOND; DECLARATION OF DILIP VITHLANI AND EXHIBITS IN SUPPORT THEREOF Defendants, Complaint filed: June 21, 2017 Assigned to Dept.: 57 Date: Jan 7, 2018 Time: 8:30 am Dept.: 57 Reservation ID: 181024359695 Filed concurrently with Evidenti Objections to Declarations of Plaintiff and Mr. Philip Dapeet, Esq. TO THE HONORABLE COURT, PLAINTIFF AND HIS ATTORNEYS OF RECORD: Defendant Central American Relief Foundation Inc., (‘CARF”) respectfully submits the following as it Reply to Plaintiff's Opposition to motion of CARF to require Plaintiff Guillermo Gomez Picasso (“Plaintff” or “Picasso:) to post bond in the amount of $50,000.00. REPLY OF CENTRAL AMERICAN RELIEF FOUNDATION INC, TO PLAINTIFF'S OPPOSITION TO REQUIRE PLAINTIEF TO POST BOND 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. PLAINTIFF'S OPPOSITION By his Opposition, Plaintiff makes the following arguments: That he has been a director and an officer of Defendant CARF and has valid grounds to bring the 3+¢ cause of action against the corporation for alleged misappropriations by Defendant Mr. Hugo Merida (“Merida”) because the claim will benefit the corporation. To support his allegations of misapproptiations he relies on documents that are not only hearsay, but double hearsay, as discussed in the concurrently filed Evidentiary Objections to Plaintiff’s Declaration. He dismisses the uncontroverted evidence submitted with the moving papers that he is an admitted thief and his conduct to date has caused severe harm to the corporation rather than benefit the corporation economically or otherwise. He also dismisses the fact that the corporation invited him to attend the election of board of directors (twice) with proper notice through his attorney of record, but he refused to attend the election. He also disavows his admission/ testimony that he voluntatily ceased participating in the corporation as of eatly January of 2016. He provided such testimony before a judicial officer (Hon. William Fahey, Department 69), duting the trial of his predecessor Mt. Jeannel, who was seeking the exact same relief here, and was represented by Mt. Dapeet, who is counsel for Plaintiff. Next, he argues that the arguments made in the moving papets ate irrelevant because they do not apply to Corporations Code § 5710. He is wrong; the ptimaty issue is whether his actions will benefit the corporation, economically or otherwise. He also disregards the fact that he caused Zs pendens to be recorded against the cotporate properties without just cause and cost CARF time, effort and money to remove the Zs pendens. Next, he argues that he has renewed his discovery efforts (after this Court granted motion of the cotporation for a protective ordet preventing such discovery) and that such D- REPLY OF CENTRAL AMERICAN RELIEF FOUNDATION INC., TO PLAINTIFF'S OPPOSITION TO REQUIRE PLAINTIFF TO POST BOND 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discovery will support his claims. What he does not tell the Court that his counsel Mr. Philip Dapeer Esq., (“Mrt. Dapeer”) has stipulated to postpone such discovery until Jan 29, 2019. See Exhibit A to Declaration of Dilip Vithlani. Next, he argues that the motion to post bond should be limited to the 3% cause of action and only to fees incurred after the Second Amended Complaint was filed. What he omits from the argument is that the corporation has been a patty to the action since January 4, 2018, when Plaintiff filed his First Amended Complaint and named CARF as a Defendant. He does not explain why the corporation has been a party for almost a year. He then argues that CARF has failed to provide any accounting of fees incurred, despite a detailed account by the undersigned in his declaration. He then argues that he is suing under Corporations Code § 5223, however, as discussed below, and as demonstrated in the moving papers, he voluntatily ceased participating in affairs of CARF as of Januaty of 2016 and thus lacks standing to bring any claims against CARF. He then argues that a Special Meeting held in Feb of 2018 is invalid, just because Defendants did not follow the By-Laws (as discussed below, he was represented by counsel, notice was given through counsel, see Exhibit B to Vithlani Decl.) but fails to explain why he refused to attend the Special Meeting. He relies on the By-Laws to suppott his position, but has also objected to the same By-Laws. He also objects to the June 2018 Board Meeting where elections were held pursuant to the By-Laws, and his excuse is that there ate no details about the meeting. He has made objections to declarations of the undersigned and Mr. Merida when the testimony provided by both is based on personal knowledge. CARF discusses those objections separately. The discussion below reveals that Plaintiff is wrong and he should be required to post ‘bond in the amount of $50,000.00. and if he does not, his claims should be dismissed. 8- REPLY OF CENTRAL AMERICAN RELIEF FOUNDATION INC., TO PLAINTIFF'S OPPOSITION TO REQUIRE PLAINTIFF TO POST BOND 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. ARGUMENT A. THERE IS NO POSSIBILITY THAT PROSECUTION OF THE DERIVATIVE ACTION WILL BENEFIT CARF, ECONOMICALLY OR OTHERWISE First and foremost, by his SAC Plaintiff admits that this is a derivative action, at least as it relates to CARF. Next, as is evident from Exhibit A to the moving papets, shottly after filing the Complaint, Plaintiff created his own company called Calthousing Foundation Inc. Following the creation of Calhousing Foundation, on October 13, 2017, Plaintiff filed a Statement of Information with the Secretary of State, changing the address of CARF to that if his corporation Calhousing. See Exhibit B to the moving papers. Less than 2-weeks later, on October 25, 2017, Plaintiff transferred title to the remaining CARF property at 815 New Hampshire to his corporation Calhousing Foundation. See Exhibit C to the moving papers. This caused CARF to prepare an emergency ex parte application for Temporary Restraining Order. Vithlani Decl. at § 10 and only after the application was filed did Plaintiff return the title back to CARF. Exhibit D to the moving papets. In his Operative Second Amended Complaint, Plaintiff admits that an ex parte application for a temporary restraining order was prepared and filed but did not go forward. See SAC at 8. This judicial admission is binding upon him. “The admission of fact in a pleading is a judicial admission. A judicial admission in a pleading is not metely evidence of a fact; it is a conclusive concession of the truth of the matter. [Citation.] * * * The trial court may not ignore a judicial admission in a pleading, but must conclusively deem it true as against the pleader.” Bucur v. Ahmad (Bucur), 244 Cal. App. 4th 175, 187, 198 Cal. Rptt. 3d 127,136 (2016), rehearing denied (Feb. 17, 2016), review denied (Apr. 13, 2016), internal quote marks and citations omitted. That effort cost CARF in excess of $2,500.00 in fees and $60.00 in costs. Vithlani Decl. at § 11. Counsel for Plaintiff also made a promise that his client would not interfere 4- REPLY OF CENTRAL AMERICAN RELIEF FOUNDATION INC., TO PLAINTIFF'S OPPOSITION TO REQUIRE PLAINTIFF TO POST BOND 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 with CARF properties and later executed an affidavit that Plaintiff was not seeking any interest in CARF owned properties. See Exhibit E to the moving papets. These events and conduct show unequivocally that Plaintiff’s complaint has not benefitted and will not benefit CARF; rather it has caused and continues to cause harm to CARF1 Overall, Plaintiff has done nothing but cause harm to CARF, and this derivative action continues to cause more harm to CARF. B. THERE WAS NO REASONABLE POSSIBILITY THAT PLAINTIFF WILL PREVAIL ON HIS COMPLAINT. Plaintiff's argument that he is suing under Corporations Code § 5223 is misplaced because the plain language of section 5223 permits suit by a current director of the corporation or twice the number of members authorized under section 5036 or 20 membets, whichever is less. He has repeatedly asserted that he has been removed as a director and thus lacks standing to sue under § 5223. Second, as discussed in the moving papers, Plata cannot prevail against CARF for declaratory relief because he has demonstrated by his own conduct that he has unclean hands and because his conduct will not and does not benefit CARF. C. CORPORATE FORMALITIES; BOARD MEETINGS AND ELECTIONS As is evident from Section 4 of the By-Laws (page 2), the By Laws expressly state that the term for directors is one year, Next, as demonstrated in the moving papers, Plaintiff admitted under oath, that he has not participated in CARF matters as of Januaty of 2016. As such, he could not be a directot, as the By-Laws call for a 1-year term. " It bears repeating that when Plaintiff recorded /is pendens on CART properties and later when he stole the property from CARF, CARF was not even a defendant in the matter, but had to incur fees and costs to prevent Plaintiff from harming CARF. =§= REPLY OF CENTRAL AMERICAN RELIEF FOUNDATION INC, TO PLAINTIFF'S OPPOSITION TO REQUIRE PLAINTIFF TO POST BOND 10 11 12 13 14 15 16 17 18. 19 20 21 22 23 24 25 26 27 28 Furthermore, Plaintiff has not explained why he did not attend the February 2018 or the June 2018 meeting; he cannot and pursuant to the very By-Laws he relies on, his contention that he is a director fails. Plaintiff’s argument that the Special Election in February of 2018 and the regular Election in June of 2018 are invalid because such meetings were not held at the principal place of business fails as well. As can be seen from the By-Laws at Section 7 (page 2), meetings can he held telephonically as well as in person. (Place of Meetings: Any meeting, regular or special, may be held by conference telephone or similar communicating equipment, so long as all Directors participating in such meeting can heard (5) one another.) Furthermore, Section 9 of the By-Laws (page 3-4) states as follows: Special meetings of the Board of Directors may be called at any time and for any purpose. These meetings may be called by either the president or the board of directors or upon request of 25% percent of the Directors of the corporation. * * * * Here, there is no dispute that Plaintiff, through his counsel was given Notice and he refused to participate. See Exhibit B to Vithlani Decl. D. AMOUNT OF BOND. By its plain language, section 5710, subdivision (d) permits a trial court to consider evidence related to the ground upon which the motion is brought or the probable reasonable expenses at the hearing on the motion, which necessarily occurs after the initial moving papets, any opposition and any reply have been filed. Here, has been demonstrated in the moving papers and this reply, CARF continues to incur fees and costs and in the event this matter goes to trial, its trial fees alone will exceed $30,000.00. Plaintiff argues that CARF has not provided any accounting on the amount of fees. As discussed in the moving papers, from the inception of this litigation, Plaintiff has caused CAREF to incur fees and costs because he continued to attack CARF, by first recording Zs 6- REPLY OF CENTRAL AMERICAN RELIEF FOUNDATION INC., TO PLAINTIFF'S OPPOSITION TO REQUIRE PLAINTIFF TO POST BOND 10 11 12 13 14 15 16 17 18 19 20 9 929 23 24 25 26 27 28 pendens against CARF properties and then he attempted to steal one of the properties for himself. Finally, as attested to in Vithlani Decl. at {Y] 16, before this motion was filed, CARF has already incurred in excess of $35,000.00 and it is anticipated that CARF will incur additional $30,000.00 in fees to defend this action. Id. at 9 18. As such, the amount of bond is appropriate at $50,000.00 III. CONCLUSION As detailed in the moving papers and above, Plaintiff has engaged in conduct that is contraty to the interests of CARF by recording the 4s pendens (thus delaying the sale of properties), and then, by misappropriating CARF property for his own benefit as a gift. Defendant CARF requests the Court grants this motion and requites Plaintiff to post bond in the amount of $50,000.00 and if he fails to do, dismiss the entire action. Respectfully submitted DATED: Dec 27, 2018 LAW OFFICES OF DILIP VITHLANI, A PC Dip Viti tte mney Defendant Central Ametican Relief Foun -7- REPLY OF CENTRAL AMERICAN RELIEF FOUNDATION INC., TO PLAINTIFF'S OPPOSITION TO REQUIRE PLAINTIFF TO POST BOND 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Declaration of Dilip Vithlani I, Dilip Vithlani declare as follows: fla That I am af attorney licensed to practice law befote this court and am the attorney of record for Defendants Hugo Merida and Central American Relief Foundation Inc, (CARF.) I know of the facts in this declaration of my personal knowledge and if called upon to testify, I can and will competently testify thereto. 2. That attached hereto as Exhibit A and incorporated by reference is a true and cotrect copy of Stipulation amongst Plaintiff and Defendants to postpone production of third-party records until January 29, 2019 and to allow CARF to setve objections and/or to seek judicial intervention. I prepared the Stipulation with the assistance of Mr. Dapeer and it 1s executed by both counsels. a. Attached hereto as Exhibit B and incorporated by reference is a true and correct copy of my Jan 26, 2018 email to Mr. Dapeer reminding him of the upcoming Special Meeting of CARF to elect a new Board and inviting him and his client to attend. I declare under the penalty of perjury undet the laws offthe State of California that J the foregoing is true and cottect. Executed on Dec 27, 2018 at Cerritos, Californi -8- REPLY OF CENTRAL AMERICAN RELIEF FOUNDATION INC, TO PLAINTIFF'S OPPOSITION TO REQUIRE PLAINTIFF TO POST BOND 10 11 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 eighteen years and not a party the within action; my business address is noted below. 18000 Studebaker Road, Suite 700 Cerritos, CA 90703 On the date below, I caused to be served the following document(s): NOTICE OF MOTION AND MOTION OF CENTRAL AMERICAN RELIEF FOUNDATION INC., TO REQUIRE PLAINTIFF TO POST BOND; DECLARATION OF DILIP VITHLANI AND EXHIBITS IN SUPPORT THEREOF On the interested patty or parties in this action by placing [| an original [X] true copy thereof, enclosed in a sealed envelope, and addressed as noted below. Counsel for Plaintiff PHILLIP D. DAPPER, ESQ. 2625 TOWNSGATE RD., STE 330 WESTLAKE VILLAGE, CA 91361 Phone: (323) 954-9144 Fax: (323) 954-0457 [x] By US Mail: I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is mote than one working day after the date of deposit for mailing in this declaration. Courtesy copy via Email to Counsel for Plaintiff BY HAND DELIVERY: I caused the above listed document(s) to be hand delivered to the parties named above. AS INDICATED (STATE) I declare under penalty of perjury under the lgtvs of the State of California that the above is true and correct. ; Executed on Dec 27, AE Califorgi / REPLY OF CENTRAL AMERICAN RELIEF FOUNDATION INC., TO PLAINTIFF'S OPPOSITION TO REQUIRE PLAINTIFF TO POST BOND EXHIBIT A OW O e N h t h bh W N BN O R O N O N N 9 a 0 2 D E B E R B E E O F B E E B E B E E BRB DILIP VITHLANI, ESQ., SB NO. 199474 LAW OFFICES OF D VITHLANI, A PC, 18000 STUDEBAKER ROAD, SUITE 700 CERRITOS, CA 90703 PHONE: (562) 867-6622 FAX: (562) 867-6624 Email: dvithlani@icloud com Attorneys for Defendants SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT GUILLERMO GOMEZ PICASSO Case No. BC 665813 Plaintiff STIPULATION TO POSTPONE : THIRD-PARTY DISCOVERY - v PROPOUNDED ON WELLS FARGO AND MY BEST ESCROW HUGO W. MERIDA, SANDRA PELAEZ, EDWIN JACINTO, AROLDO RAMIREZ, CARLOS CALDERON, Complaint filed: June 21, 201 EDWIN ARANGO, and DOES 1-20 Assigned to Dept.: 57 : inclusive Hon. Steven J. Kliefield Defendants, COMES NOW, DEFENDANTS SANDRA PELAEZ, , EDWIN JACINTO, ARNOLDO RAMIREZ, CARLOS CALDERON, DALLA MARTINEZ, AURA CRUZ, JORGE MARROQUIN, TERRY MARTINEZ, AND MERLI ALBIZUREZ (collectively, Defendants), AND PLAINTIFE GUILLERMO GOMEZ PICASSO (Plaintiff), by 2nd through counsel, stipulate as follows: WHEREAS, on November 27, 2018, Plaintiff has propounded third-party discovery on Wells Fargo and My Best Escrow seeking financial records of Dipfecdans Central American Foundation Inc.; and STIPULATION TO POSTPONE THIRD-PARTY DISCOVERY PROPOUNDED ON WELLS FARGO AND MY BEST ESCROW “ s s = w o o o N h nn A B N = . i 8 I R R R U Y R B R B E g E zs 5 2 3 8 2 8 2 3 WHEREAS the document production date is cutrently set for December 21, 2018; and WHEREAS patties, by and through counsel, have agreed to await the outcome of a hearing that is currently scheduled for January 7, 201% in Los Angeles Superior Court in the above entitled action before the documents ate to be produced by Wells Fargo and My Best Escrow; WHEREAS parties will seek an order from the Coutt to continue the trial date in this matter and parties further stipulate that the discovesy cut-off date will track the new trial date, and in the cee that the court does not continue the trial date, Defendants hereby waive the discoversiiate specifically as it relates to the third-party subpoenas that ate the subject of this stipulation. THEREFORE, PARTIES, BY AND THROUGH COUNSEL STIPULATE AS FOLLOWS: Plaintiff agrees to postpone the production of documents from both Wells Fargo and My Best Escrow up to 4nd including January 28, 2019 (21 days aftet January 7, 2019) 50 5 allow Defendants to seek judicial intetvention if necessary; and A copy of this stipulation, fully executed by counsel for Plaintiff and Defendants, shall serve as notice to both Wells Fargo and My Best Escrow that parties have agreed to postpone the production of documents to January 28, 2019 unless both Wells Fargo and My Best Escrow receive a file stamped motion and/or other pleading prevestiog them from producing the requested documents, IT IS SO STIPULATED DATED: Dec 10, 2018 LAW OFFICES oF DI 2- STIPULATION TQ POSTPONE THIRD-PARTY DISCOVERY PROPOUNDED ON WELLS FARGO AND MY BEST ESCROW WwW oo N a n A e e N O N OW » nN 2 4 R B 2 BE B R E S g s s s B 2 2 g e e = DATED: Dec 10, 2018 PHILTP D. DAPEER, A Law Cozpotation UA 000 p D. Dapeer, hi. Bt Sat He STRPULATION TO POSTPONE THIRD-PARTY DISCOVERY PROPOUNDED ON WELLS FARGO AND MY BRST ESCROW EXHIBIT B Dilip Vithlani From: Dilip Vithlani Sent: Friday, January 26, 2018 10:43 AM To: ‘Philip Dapeer' Subject: CARF Special Election to elect Board of Directors Counsel: Just a reminder and as discussed in my Jan 7, 2018 email, the Board will be holding a Special Election to elect board members on February-3, 2018 at 4:00 pm at the Guatemala Restaurant, 743 So. Union Ave. Los Angeles, CA 90017; corner of Union and 8. Street. Based on our discussions and email exchanges, the election is being held to accommodate your client and in an attempt to resolve the pending litigation and allow Mr. Picasso a fair opportunity to participate in the election. Dilip Vithlani - Law Offices of Dilip Vithlani, APC 18000 Studebaker Road, Ste 700 Cerritos, CA 90703 Phone: {562) 867-6622 Fax: (562) 867-6624
