Julius R Nasso v. Integrated Administration, Inc. et al

NOTICE OF MOTION AND MOTION to Dismiss Second Amended Complaint; Memorandum of Points and Authorities

C.D. Cal.April 10, 2017

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 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 PATRICIA L. GLASER - State Bar No. 55668 pglaser@glaserweil.com G. JILL BASINGER - State Bar No. 195739 jbasinger@glaserweil.com RICHARD W. BUCKNER - State Bar No. 102545 rbuckner@glaserweil.com CAMILLA Y. CHAN - State Bar No. 241674 cchan@glaserweil.com GLASER WEIL FINK HOWARD AVCHEN & SHAPIRO LLP 10250 Constellation Boulevard, 19th Floor Los Angeles, California 90067 Telephone: (310) 553-3000 Facsimile: (310) 556-2920 Attorneys for Defendants David Bergstein and Eugene Scher UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION JULIUS R. NASSO, an individual, Plaintiff, V. INTEGRATED ADMINISTRATION, INC, an entity of unknown origin, ET AL., Defendants. Case No. 15-CV-08534-DMG (GJSx) Hon. Dolly M. Gee DEFENDANTS BERGSTEIN AND SCHER’S NOTICE OF MOTION AND MOTION TO DISMISS SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES [FED. R. CIV. P. RULE 12(b)(6)] DATE: May 12, 2017 TIME: 9:30 a.m. COURTROOM: 8C Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 1 of 22 Page ID #:494 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on May 12, 2017 at 9:30 a.m., or as soon thereafter as the matter may be heard by the Honorable Dolly M. Gee, in Courtroom 8C, of the above-entitled Court located at 350 West 1st Street, Los Angeles, CA, 90012, Defendants David Bergstein (“Bergstein”) and Eugene Scher (“Scher”) will and hereby do move the Court to dismiss Plaintiff Julius R. Nasso’s (“Plaintiff”) Second Amended Complaint (“SAC”) against Scher and the Fourth and Fifth claims of the SAC against Bergstein. This Motion is made pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and is based on the following grounds: 1. Plaintiff fails to plead claims for fraudulent misrepresentation and negligent misrepresentation against Scher because the SAC fails to allege that Scher made any statements to induce Plaintiff to act. 2. Plaintiff fails to plead claims for fraud against Scher because Scher had no duty to disclose any facts to Plaintiff; the allegations in the SAC are insufficient to show that Scher intended to deceive Plaintiff; and Plaintiff was not damaged by Scher’s alleged failure to disclose the existence of other liens on the Picture. 3. Plaintiff fails to plead a claim for breach of contract/promissory note against Bergstein and Scher because neither Bergstein nor Scher are parties to the promissory note and Plaintiff fails to allege that ADF, LLC is a party or otherwise related to the note. 4. Plaintiff fails to plead a claim for breach of guaranty against Bergstein and Scher because neither Bergstein nor Scher are parties to the Guaranty contract. This Motion is based upon this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, the pleadings and other matters on file in this action, and such other and further matters as may come before the Court. Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 2 of 22 Page ID #:495 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 This Motion is made following the conference of counsel pursuant to L.R. 7-3, which took place on April 5, 2017. DATED: April 10, 2017 GLASER WEIL FINK HOWARD AVCHEN & SHAPIRO LLP By: /s/ Richard W. Buckner PATRICIA L. GLASER G.JILL BASINGER RICHARD W. BUCKNER CAMILLA Y. CHAN Attorneys for Defendants David Bergstein and Eugene Scher Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 3 of 22 Page ID #:496 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 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 TABLE OF CONTENTS Page I. INTRODUCTION ........................................................................................... 1 II. STATEMENT OF FACTS .............................................................................. 3 A. Plaintiff’s Loan to “Integrated Administration, Inc.” ........................... 3 B. Defendant Integrated Administration Is the Issuer of the Promissory Note and the Borrower ....................................................... 6 III. ARGUMENT .................................................................................................. 7 A. Legal Standard ...................................................................................... 7 B. Plaintiff Still Fails to State Claims for Fraudulent Misrepresentation and Negligent Misrepresentation Against Defendant Scher .................................................................................... 7 C. Plaintiff Fails to State a Claim for Fraudulent Concealment Against Defendant Scher ...................................................................... 9 D. Plaintiff Still Fails to State Claims for Breach of Contract and Breach of Guaranty Against Defendants Bergstein and Scher ........... 12 1. Defendant Bergstein Cannot Be Liable for Breach of Contract ..................................................................................... 12 2. Defendant Scher Also Cannot Be Liable for Breach of Contract ..................................................................................... 12 3. Plaintiff May Not Take a Scrivener’s Error and Manufacture a Partnership Out of It ............................................................... 14 IV. CONCLUSION ............................................................................................. 15 Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 4 of 22 Page ID #:497 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 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 TABLE OF AUTHORITIES Page FEDERAL CASES Davis v. Metro Prods., Inc., 885 F.2d 515 (9th Cir. 1989) ................................................................................... 14 In re Hydroxycut Mktg. & Sales Practices Litig., 299 F.R.D. 648 (S.D. Cal. 2014). ............................................................................ 11 Jacobelli v. State Farm Fire & Cas. Co., 120 F.3d 171 (9th Cir. 1997) ..................................................................................... 7 NuCal Foods, Inc. v. Quality Egg LLC, 887 F. Supp. 2d 977 (E.D. Cal. 2012) ..................................................................... 13 Synagogue v. United States, 482 F.3d 1058 (9th Cir. 2007) ................................................................................... 7 United Computer Sys., Inc. v. AT&T Corp., 298 F.3d 756 (9th Cir. 2002) ................................................................................... 12 United States v. S. California Edison Co., 300 F. Supp. 2d 964 (E.D. Cal. 2004) ..................................................................... 15 Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658 (9th Cir. 1998) ................................................................................... 15 STATE CASES Barrett v. Hammer Builders, Inc., 195 Cal. App. 2d 305 (1961) ............................................................................. 13, 14 Boschma v. Home Loan Ctr., Inc., 198 Cal. App. 4th 230 (2011) .................................................................................... 9 Cansino v. Bank of Am., 224 Cal. App. 4th 1462 (2014) ................................................................................ 15 Carlesimo v. Schwebel, 87 Cal. App. 2d 482 (1948) ..................................................................................... 14 Engalla v. Permanente Med. Grp., Inc., 15 Cal. 4th 951 (1997) ............................................................................................... 7 Gold v. Gibbons, 178 Cal. App. 2d 517 (1960) ................................................................................... 12 Howell v. Courtesy Chevrolet, Inc., 16 Cal. App. 3d 391 (1971) ....................................................................................... 9 Knox v. Dean, 205 Cal. App. 4th 417 (2012) .................................................................................... 8 Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 5 of 22 Page ID #:498 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 iii DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 Ragland v. U.S. Bank Nat’l Ass’n, 209 Cal. App. 4th 182 (2012) .................................................................................... 7 SCC Acquisitions, Inc. v. Cent. Pac. Bank, 207 Cal. App. 4th 859 (2012) .................................................................................. 10 Serv. by Medallion, Inc. v. Clorox Co., 44 Cal. App. 4th 1807 (1996). .................................................................................... 7 Warner Constr. Corp. v. City of Los Angeles, 2 Cal. 3d 285 (1970) ................................................................................................ 10 STATE STATUTES Cal. Civ. Code §2299 ..................................................................................................... 8 FEDERAL RULES Fed. R. Civ. P. § 9(b) ..................................................................................................... 9 Fed. R. Civ. Proc.§ 2(b)(6) ............................................................................................ 2 Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 6 of 22 Page ID #:499 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In a third attempt to salvage his patently baseless claims against Defendants David Bergstein (“Bergstein”) and Eugene Scher (“Scher”), Plaintiff Julius Nasso (“Plaintiff”) continues to rely on a manufactured fictitious “partnership” in which Bergstein, Scher, and Defendant Kia Jam (“Jam”) are partners. Turning an apparent scrivener’s error on its head, Plaintiff attempts to create a “partnership” out of a misnamed company in order to attach personal liability to Defendants Bergstein and Scher. Other than the mischaracterization of the company as a Delaware corporation rather than a California corporation and the mistaken addition of the word “Inc.” in the title of the company, Plaintiff can point to no facts to support the existence of a partnership or the inclusion of Defendants Bergstein and Scher as partners in the fictitious partnership. Put simply, Plaintiff cannot invent a “partnership” in order to attach liability where none exists.1 For the first time, and in a last-ditch effort to link Scher to the Secured Promissory Note (the “Note”), Plaintiff alleges that Scher stood behind the loan because of the existence of “ADF, LLC,” and Scher’s alleged initials on the bottom corner of each page of the Note. Plaintiff establishes no causal link between Scher and ADF, LLC or ADF, LLC and Integrated except for his bare bones allegation that ADF, LLC is the alter ago of Scher. Rather than pursuing his claims against the entity that issued the Note agreeing to repay the $600,000 loan and the entity that guaranteed the loan, Plaintiff has taken a shotgun approach to liability, bringing in numerous individuals including Bergstein, whose only contact with Plaintiff was a 1 Plaintiff has sued three separate entities all entitled “Integrated Administration,” including one, “Integrated Administration, a California corporation and erroneously sued as Integrated Administration, Inc., a California corporation.” This gives rise to the inference that Plaintiff is aware that Integrated Administration is all one in the same. Here, Plaintiff characterizes Integrated Administration as a partnership to get around the liability protections afforded by forming a corporation. Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 7 of 22 Page ID #:500 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 single telephone call, and Scher, who executed the guaranty agreement as an agent of the contracting company. Many of Plaintiff’s allegations have not changed, and the basis for dismissal of the entire SAC against Scher and the Fourth and Fifth claims against Bergstein is largely the same as the Court’s reasoning in its prior Orders. Plaintiff builds off of the same insufficient facts as in the FAC in a desperate attempt to hold Bergstein and Scher liable. Defendants Bergstein and Scher have already been forced to file two motions to dismiss (See Dckt. Nos. 23 & 52) on these same allegations and the Court previously granted both motions (See Dckt. Nos. 46 & 60). Given that the defects the Court has already acknowledged remain the same, the Court should not give Plaintiff yet another chance to fix fundamental facts regarding Plaintiff’s transaction that cannot be changed. Plaintiff cannot state claims for fraudulent misrepresentation and negligent misrepresentation against Scher. The only statements allegedly made by Scher were made after Plaintiff had already transferred the $600,000 loan; therefore, Plaintiff could not have reasonably relied upon any statements by Scher. Moreover, the alleged statements by Scher - expressing his gratitude for Plaintiff’s loan - do not constitute statements of fact upon which Plaintiff could have reasonably relied. There is also no factual basis for Plaintiff’s fraudulent concealment claim based on Scher’s execution of the Copyright Mortgage and Assignment (“Copyright Assignment”) for the purpose of granting a security interest to Plaintiff. First, Scher had no duty to disclose any facts to Plaintiff. Scher’s execution of the Copyright Assignment, granting a security interest to Plaintiff, does not constitute the “sale of securities.” Nor does Scher make any factual representations that would require him to disclose the existence of other liens on the copyright. Second, Plaintiff fails to allege any facts to show that Scher intended to deceive Plaintiff. Third, Plaintiff was not damaged by Scher’s alleged failure to disclose the existence of other liens on the Picture. Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 8 of 22 Page ID #:501 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 Despite his third amendment, Plaintiff still cannot state claims against Bergstein and Scher for breach of contract or breach of guaranty. Neither Bergstein nor Scher are parties to either agreement, and Scher only signed the Continuing Corporate Guaranty Agreement (the “Guaranty Agreement”) as manager of Nailed Loan and not in his personal capacity. Plaintiff cannot impose liability for breach of contract on two non-parties by imagining them to be “partners” in a fictitious “partnership” that he created out of whole cloth. Consistent with Plaintiff’s scattershot approach to attach liability where none exists, the SAC now alleges, for the first time, that Scher is personally liable for the debts of Integrated because he is the alter ego of an unknown and non-existent entity, ADF, LLC. Even if the initials for ADF, LLC alone were sufficient to establish that that Scher is an alter ego of the non-existent entity, the allegations are not sufficient to establish that ADF, LLC is liable for the debts of Integrated. Indeed, there are no allegations tying ADF, LLC to Integrated and other than the initials, there is nothing in the Note to suggest that ADF, LLC agreed to take on the obligations of the Note. Because Plaintiff still cannot state any claim against Scher, the SAC should be dismissed with prejudice in its entirety against Scher. Plaintiff also fails to plead claims for breach of contract and breach of the Guaranty Agreement against Bergstein. Bergstein did not execute either the promissory note or the Guaranty Agreement, which form the basis of Plaintiff’s Fourth and Fifth Claims. Because Bergstein is not a signatory to the contracts at issue, he cannot be liable for any alleged breach of the contract. Accordingly, Bergstein respectfully requests that the Court dismiss the Fourth and Fifth Claims of the SAC with prejudice. II. STATEMENT OF FACTS A. Plaintiff’s Loan to “Integrated Administration, Inc.” According to the SAC, Jeff Kranzdorf (“Kranzdorf”), acting on behalf of Bergstein and the other Defendants, telephoned Plaintiff to determine whether Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 9 of 22 Page ID #:502 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 Plaintiff would invest in the production of a full length theatrical motion picture entitled “Nailed,” a/k/a Accidental Love (the “Picture”). Subsequently, Plaintiff met with Kranzdorf and Jam regarding his proposed investment in the Picture, and Jam allegedly made false representations to Plaintiff regarding the Picture and Plaintiff’s potential investment therein. SAC, ¶¶ 21-23. Following Plaintiff’s meeting with Jam and Kranzdorf, Bergstein allegedly telephoned Plaintiff to encourage and “induce[]” Plaintiff to invest in the Picture. Bergstein allegedly reiterated statements that Plaintiff had previously been told regarding the Picture and Plaintiff’s potential investment therein. See SAC, ¶ 25. Bergstein also allegedly stated that Plaintiff’s investment would be adequately secured by the copyright in the Picture, that Plaintiff would receive the first monies earned from the Picture, and that there would be a theatrical release of the Picture by Defendants. See SAC, ¶ 26. In reliance on the alleged statements by Jam and Bergstein, Plaintiff transferred $600,000 to invest in the Picture. SAC, ¶ 27. Plaintiff’s alleged “investment” was secured by a Note by which “Integrated Administration, Inc.” agreed to pay the sums set forth in the Note. SAC, ¶ 27 and Exh. 1. The Note was executed by Jam, who was identified as President of “Integrated Administration, Inc.” SAC, Exh. 1. The Note makes no explicit reference to Scher or Bergstein and does not identify them as officers, directors, employees, or representatives of “Integrated Administration, Inc.” SAC, Exh. 1. Plaintiff tries to pin liability on Scher by alleging that the Note was initialed at the bottom of each page by Scher with “ADF G.S.” on behalf of an unknown and non-existent entity ADF, LLC, without alleging any facts support his conclusion that Scher is the alter ego of ADF, LLC. SAC, ¶ 27. Plaintiff alleges that Scher’s “initials” on this Note “constituted a positive assertion” that there existed Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 10 of 22 Page ID #:503 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 another party that was standing behind the Note. SAC, ¶ 27. Plaintiff has not, however, alleged any facts to tie ADF, LLC to Integrated.2 In addition, Plaintiff’s investment was secured by a written Copyright Mortgage and Assignment, which was executed by Scher, as Manager of Nailed Loan. SAC, ¶ 27 and Exh. 2. Plaintiff also entered into a Guaranty Agreement with Nailed Loan. SAC, ¶ 27 and Exh. 3. The Guaranty Agreement was executed by Scher, as Manager of Nailed Loan, and approved as to form and content by Jam, as an authorized signer for “Integrated Administration, Inc.” SAC, Exh. 3. In each instance where Scher executed the written agreements, he did so solely in his capacity as Manager for Nailed Loan. Bergstein did not execute any of the written agreements. After Plaintiff transferred $600,000 on November 5, 2012, which represented his investment in the Picture, Plaintiff met with Scher and Kranzdorf on or about November 9, 2012. During that meeting, Scher “expressed his thanks to [Plaintiff] for ‘saving the film,’” and told Plaintiff, “we couldn’t have done it without you.” SAC ¶¶ 35-37. Plaintiff allegedly was never repaid his $600,000 loan, despite making a demand for payment. SAC, ¶¶ 34, 38, 42. Plaintiff also alleges that Kranzdorf, as Bergstein’s representative, made assurances to Plaintiff that he would be repaid. SAC, ¶¶ 40-41. The SAC does not allege that Bergstein himself made any such statements. These alleged subsequent statements by Kranzdorf did not induce Plaintiff to take any action or to forbear from taking any action. 2 Indeed, other than the reference at the bottom of the Note, there are no allegations that ADF, LLC or “ADF G.S.” has any relationship with the transaction or that Plaintiff was even aware of ADF, LLC prior to the filing of the SAC. See generally SAC. Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 11 of 22 Page ID #:504 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 B. Defendant Integrated Administration Is the Issuer of the Promissory Note and the Borrower The Note, which documents Plaintiff’s $600,000 loan for the completion of the Picture, identifies “Integrated Administration, Inc., a Delaware corporation” as the maker of the Note. SAC, Exh. 1. Further, other than identifying Jam as the President of “Integrated Administration, Inc.,” the Note does not identify any other officers, directors, investors, employees, or any other representatives of “Integrated Administration, Inc.” SAC, Exh. 1. There is also no reference in the Note to ADF, LLC other than at the bottom left corner of each page. Indeed, neither Bergstein nor Scher’s full names appear on the Note at all. Plaintiff tries to characterize the appearance of ADF, LLC and Scher’s alleged initials on the Note to mean that Scher stood behind the Note. Not so. Further, Plaintiff has not properly alleged alter ego liability and even if ADF, LLC is the alter ego Scher, that does not link ADF, LLC to the Note because Plaintiff does not allege that ADF, LLC is the alter ego of Integrated. Therefore, Plaintiff’s conclusory allegations regarding ADF, LLC and Scher’s alleged initials do not sufficiently link Scher nor ADF, LLC to the Note. Similarly, the Guaranty Agreement identifies “Integrated Administration, Inc.” as the borrower in connection with the Note. Again, Bergstein’s name does not appear on the Guaranty Agreement at all; Scher executed the Guaranty Agreement in his capacity as Manager of Nailed Loan, but there is no mention of Scher in connection with “Integrated Administration, Inc.” SAC, Exh. 3. There is no entity registered with the Delaware Secretary of State named “Integrated Administration, Inc.” or variations thereof. Request for Judicial Notice (“RJN”), Exh. A (Del. Secretary of State search). However, there is a corporation named “Integrated Administration” registered with the California Secretary of State and which identifies Kiarash Jam as its agent for service of process. RJN, Exh. B (CA Secretary of State Certificate) and Exh. C (CA Secretary of State Search). Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 12 of 22 Page ID #:505 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 Recognizing that there may have been a typographical error in the Note and the Guaranty Agreement, Plaintiff alleged in his initial Complaint that Defendant “Integrated Administration, Inc.” is either an entity that was incorporated in the State of Delaware or a corporation organized under the laws of California. Complaint, ¶ 8. Plaintiff also defined both companies as “Integrated.” Complaint, ¶ 8. III. ARGUMENT A. Legal Standard A district court may dismiss a complaint if it is clear that “no relief can be granted under any set of facts that could be proved consistent with the allegations.” Synagogue v. United States, 482 F.3d 1058, 1060 (9th Cir. 2007). “All allegations of material fact are taken as true and construed in the light most favorable to the moving party.” Jacobelli v. State Farm Fire & Cas. Co., 120 F.3d 171, 172 (9th Cir. 1997). B. Plaintiff Still Fails to State Claims for Fraudulent Misrepresentation and Negligent Misrepresentation Against Defendant Scher In order to plead fraud under California law, a plaintiff must allege “(1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.” Serv. by Medallion, Inc. v. Clorox Co., 44 Cal. App. 4th 1807, 1816 (1996). In order to plead a claim for negligent misrepresentation, a plaintiff must allege “(1) a misrepresentation of a past or existing material fact, (2) made without reasonable ground for believing it to be true, (3) made with the intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.” Ragland v. U.S. Bank Nat’l Ass’n, 209 Cal. App. 4th 182, 196 (2012). “Actual reliance occurs when a misrepresentation is ‘an immediate cause of [a plaintiff’s] conduct, which alters his legal relations,’ and when, absent such representation, ‘he would not, in all reasonable probability, have entered into the contract or transaction.’” Engalla v. Permanente Med. Grp., Inc., 15 Cal. 4th 951, 976 (1997) (internal citations omitted). Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 13 of 22 Page ID #:506 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 As in the original Complaint and FAC, Plaintiff still concedes that he met with Scher only after the time he transferred funds for his investment in the Picture. SAC, ¶¶ 35-37. As a result, nothing Scher said could have induced Plaintiff to invest in, or make a loan to, the Picture. Furthermore, the only statements by Scher - thanking Plaintiff for “saving the film” which they “couldn’t have done [] without [Plaintiff],” SAC, ¶¶ 35-37, do not constitute misrepresentations of fact that would give rise to a claim for fraudulent misrepresentation. Even if the statements by Scher could be construed as factual representations, Plaintiff does not identify any other actions that he took, or refrained from taking, in reliance on the statements by Scher. See, e.g., Knox v. Dean, 205 Cal. App. 4th 417, 434 (2012) (holding that summary adjudication on constructive fraud claim was appropriate where plaintiff failed to identify any act taken in reliance on defendant’s action). As the Court found in its February 17, 2017, Order (the “Order”), “Nasso could not have relied upon any alleged misrepresentations by Scher in deciding to invest in the Picture because Nasso did not meet with Scher until after having invested in the picture.” Order, p. 3. The Court has already ruled that Plaintiff’s allegations regarding Scher’s supposed fraudulent and negligent misrepresentation are insufficient. Nothing in the SAC remedies the fundamental fact that Plaintiff did not meet with Scher until after he made his investment. Therefore, because Plaintiff did not rely on any representation by Scher, Plaintiff has not, and cannot, state a cause of action for fraudulent misrepresentation or negligent misrepresentation against Scher. Without stating any factual basis for his conclusion, Plaintiff alleges that Kranzdorf acted as an “agent” for Bergstein and other Defendants and was “involved in the business affairs” of Defendants. SAC, ¶¶ 17-18. To the extent that Plaintiff seeks to impose liability on Scher for statements made by Kranzdorf, Plaintiff has alleged no facts to show that Kranzdorf was either an actual or ostensible agent of Scher. “An agency is actual when the agent is really employed by the principal.” Cal. Civ. Code §2299. “[I]n order to establish ostensible agency, the principal must Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 14 of 22 Page ID #:507 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 intentionally communicate this relationship to the third party, or negligently cause the third party to believe that there is an agency relationship.” Howell v. Courtesy Chevrolet, Inc., 16 Cal. App. 3d 391, 401 (1971) (emphasis added). Here, Plaintiff has not alleged that Kranzdorf was an employee of Scher, and as a result, Plaintiff has not alleged that Kranzdorf was Scher’s actual agent.3 Nor has Plaintiff alleged any new facts to support an ostensible agency between Kranzdorf and Scher. As Plaintiff acknowledges in the SAC, he did not meet with or speak to Scher until after he had already made the $600,000 loan. Indeed, Plaintiff does not allege that Scher ever communicated that Kranzdorf was Scher’s agent. Thus, Scher did not intentionally or negligently cause Plaintiff to believe that Kranzdorf acted as his agent in connection with the $600,000 loan. C. Plaintiff Fails to State a Claim for Fraudulent Concealment Against Defendant Scher The elements of an action for fraudulent concealment under California law are: “(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” Boschma v. Home Loan Ctr., Inc., 198 Cal. App. 4th 230, 248 (2011). Moreover, these elements cannot be pleaded generally or in a conclusory manner: the fraud must be pleaded with particularity. Fed. R. Civ. P. 9(b). “In transactions which do not involve fiduciary or confidential relations, a cause of action 3 Plaintiff now alleges that each of the Defendants were “aware of the fact that Kranzdorf had represented Nasso as a lawyer in the past, held Kranzdorf in high esteem, and believed Kranzdorf was his lawyer at all material times.” SAC, ¶ 18. As with the FAC, the SAC does not allege any facts beyond conclusory and vague statements that do not support any agency relationship between Kranzdorf and Scher. Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 15 of 22 Page ID #:508 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 10 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 for non-disclosure of material facts may arise in at least three instances: (1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; (3) the defendant actively conceals discovery from the plaintiff.” Warner Constr. Corp. v. City of Los Angeles, 2 Cal. 3d 285, 294 (1970). In the SAC, Plaintiff alleges that no Defendant disclosed the existence of any encumbrances on the Picture and that Scher concealed from Plaintiff the fact that the copyright in the Picture had been previously encumbered to secure prior loans when he executed the Copyright Assignment in his capacity as Manager of Nailed Loan. SAC, ¶ 27. As with Plaintiff’s fraudulent and negligent misrepresentation claims, the Court has already found that Plaintiff’s allegations do not give rise to a claim for fraudulent concealment. As the Court previously articulated in its Order, without sufficient allegations that Scher was an alter ego of Nailed Loan, he cannot be held personally liable for fraudulent actions he may have taken on behalf of the company in his managerial capacity. See Order, p. 5. Despite having three chances to do so, Plaintiff has failed to alleviate the defects from the prior iterations of his Complaint. First, Scher had no duty to disclose any facts to Plaintiff. Under California law, a duty to speak may arise in one of four ways: “it may be directly imposed by statute or other prescriptive law; it may be voluntarily assumed by contractual undertaking; it may arise as an incident of a relationship between the defendant and the plaintiff; and it may arise as a result of other conduct by the defendant that makes it wrongful for him to remain silent.” SCC Acquisitions, Inc. v. Cent. Pac. Bank, 207 Cal. App. 4th 859, 864 (2012). Plaintiff attempts to create a duty, imposed by California securities law, by arguing that Scher sold securities to him, but that is not true. Scher did not sell or offer to sell to Plaintiff a security interest in the Picture. Rather, Scher executed two documents - the Copyright Assignment and the Guaranty Agreement - Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 16 of 22 Page ID #:509 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 11 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 in connection with Plaintiff’s loan. SAC, ¶ 27. This conduct does not constitute the sale of securities and does not implicate California’s securities laws. Furthermore, merely executing the Copyright Assignment, which had the effect of granting a security interest in the Picture, does not constitute a disclosure that gives rise to an obligation to disclose facts regarding other encumbrances on the copyright for the Picture. The Copyright Assignment, which makes no reference to other liens on the copyright of the Picture, does not contain any “half-truths” that would give rise to an obligation to provide Plaintiff with the “whole truth.” Plaintiff had an obligation to determine the nature of Nailed Loan’s interest in the first place before accepting the security interest.4 The documents themselves were executed solely for the purpose of granting Plaintiff a security interest for his loan. Scher’s execution of those documents did not constitute a statement of fact regarding the nature, value, or worth of the security interest, and it did not give rise to an obligation to disclose facts relating to other encumbrances for the copyright of the Picture. Second, the allegations in the SAC are insufficient to show that Scher intended to deceive Plaintiff. “A plaintiff must allege sufficient facts to support an inference or render plausible that the defendant acted with the requisite intent.” In re Hydroxycut Mktg. & Sales Practices Litig., 299 F.R.D. 648, 659 (S.D. Cal. 2014). Here, Plaintiff alleges that Scher’s liability arises because, as manager of Nailed Loan, he signed the Copyright Assignment, which did not disclose the existence of prior liens on the Picture. The omission of statements in a document, which Scher executed in his capacity as manager of Nailed Loan for the purpose of granting the security interest to Plaintiff and not for the purpose of making any disclosure to Plaintiff, does not support a reasonable inference that Scher was acting with the intent to deceive Plaintiff. 4 Plaintiff could have discovered that there were prior secured liens on the copyright for the Picture by searching the public records. See, e.g., RJN, Exhs. D & E (UCC Financing Statements filed and recorded with the Delaware Secretary of State). Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 17 of 22 Page ID #:510 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 12 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 Third, Plaintiff was not damaged by Scher’s alleged failure to disclose the existence of other liens on the Picture. Plaintiff has not alleged that he attempted to foreclose on his security interest in the Picture. Nor has he alleged any facts to show that prior liens in any way affected his ability to collect on his loan. Accordingly, Scher’s alleged concealment of prior security liens on the Picture did not cause any of the damage that Plaintiff seeks to recover. As a result, Plaintiff’s claim for fraudulent concealment should be dismissed with prejudice. D. Plaintiff Still Fails to State Claims for Breach of Contract and Breach of Guaranty Against Defendants Bergstein and Scher 1. Defendant Bergstein Cannot Be Liable for Breach of Contract “Under California law, ‘only a signatory to a contract may be liable for any breach.” United Computer Sys., Inc. v. AT&T Corp., 298 F.3d 756, 761 (9th Cir. 2002); see also Gold v. Gibbons, 178 Cal. App. 2d 517, 519 (1960) (“Breach of contract cannot be made the basis of an action for damages against defendants who did not execute it and who did nothing to assume its obligations.”). This is consistent with the Court’s Order wherein the Court found that because Bergstein is not a signatory to the contracts at issue, he cannot be liable for any alleged breach of the contracts. See Order, p. 7. As stated in Defendants’ Motion to Dismiss the FAC, Bergstein did not execute either the Note or the Guaranty Agreement, which form the basis of Plaintiff’s Fourth and Fifth Claims for breach of contract and breach of guaranty. See SAC, Exh. 1. Therefore, Bergstein cannot be held liable for breach of contract. 2. Defendant Scher Also Cannot Be Liable for Breach of Contract Although Plaintiff attempts to pin liability on Scher for the Note by alleging that Scher signed on behalf of a non-existent entity ADF, LLC, like Bergstein, Scher did not sign the Note on behalf of Integrated. Instead, Jam signed the Note on behalf Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 18 of 22 Page ID #:511 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 13 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 of Integrated. Plaintiff’s allegations that Scher signed the Note on behalf of ADF, LLC, are meaningless because Plaintiff claims no connection between ADF, LLC and Integrated. Accordingly, Scher cannot be liable for breach of the Note based on Integrated’s alleged failure to repay funds to Plaintiff. United Computer Sys., 298 F.3d at 762. Further, Plaintiff makes bare bones allegations of alter ego liability based upon information and belief that “[n]on-existent company ADF, LLC, which Plaintiff is informed and believes is the alter ego of Scher, and the other individual defendants, because it didn’t exist and never existed, also, signed the Note . . .” and that “. . . there was such a unity of interest and ownership and disregard for the separateness of the entity.” SAC, ¶¶ 9-10. Plaintiff offers no factual support for his conclusory allegations. To impose liability based upon an alter ego theory, “the plaintiff must make allegations of fact from which it appears that recognition of the corporate entity would sanction a fraud or promote injustice.” NuCal Foods, Inc. v. Quality Egg LLC, 887 F. Supp. 2d 977, 992 (E.D. Cal. 2012) “Mere ‘[c]onclusory allegations of alter- ego status are not sufficient.’” Id. at 993. Plaintiff’s unfounded assertion fails to account that there is nothing in the Note tying ADF, LLC or Scher to it. Here, even if Plaintiff could establish alter ego liability between ADF, LLC and Scher, such a showing would have no bearing on Scher’s liability because Plaintiff has not alleged any facts to suggest that ADF, LLC is the alter ego of Integrated, the “maker” of the Note. Even though Scher signed the Guaranty Agreement, he did so in his capacity as Manager of Nailed Loan. In doing so, Scher was contracting on behalf of Nailed Loan and not in his personal capacity. See Barrett v. Hammer Builders, Inc., 195 Cal. App. 2d 305, 317 (1961) (holding that where on the face of the contract it is clear that an individual was signing an agreement as an agent for the company, the individual “was contracting on behalf of [the company] and not for himself”). Here, it is clear that Scher signed the Guaranty Agreement in his capacity as Manager of Nailed Loan, and not in his individual capacity. Not only does the Guaranty Agreement identify Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 19 of 22 Page ID #:512 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 14 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 the contracting parties as “Nailed Loan Acquisition Company” and Plaintiff, but in the signature block, Scher signed as “Manager” of Nailed Loan. Id. (holding that where it appears on the face of an agreement that an individual is signing the agreement as a representative of the company, “the corporation is liable and the agent is not”); see also Carlesimo v. Schwebel, 87 Cal. App. 2d 482, 486 (1948) (holding that where the signature of contracting party included the name of the company, the contract discloses that the contracting party is the company). As the Court articulated in its prior Order, it is clear that the contracting defendant is Nailed Loan, and Scher cannot be liable personally for any alleged breach of the Guaranty Agreement. See Order, p. 6. Here, the SAC does not sufficiently allege that Scher signed the documents as an alter ego of Nailed Loan or in a manner other than in his capacity as manager of an LLC. Accordingly, there is no basis for imposing liability for breach of contract or breach of guaranty upon Bergstein or Scher personally. 3. Plaintiff May Not Take a Scrivener’s Error and Manufacture a Partnership Out of It Plaintiff contends that an apparent typographical error gives rise to a theory of liability based on an unincorporated partnership. Plaintiff pleads no facts to show that the “Integrated Administration, Inc.” constitutes a de facto unincorporated partnership based upon Defendants’ failure to incorporate the corporation in Delaware. Even if such a “partnership” exists, the judicially noticeable facts establish that a corporation named “Integrated Administration” also exists. As such, the members of that corporation intended for the corporation to assume liability and to protect its members from liability. See Davis v. Metro Prods., Inc., 885 F.2d 515, 520 (9th Cir. 1989) (holding that the corporate form serves as a shield for the individuals involved for purposes of liability). The only fact that Plaintiff has alleged to support his claim of the existence of an unincorporated partnership is that the Note erroneously identified “Integrated Administration, Inc., a Delaware corporation” as the maker of the Note, Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 20 of 22 Page ID #:513 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 15 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 when, in fact, the proper name of the entity should have been “Integrated Administration, a California corporation.” RJN, Exhs. B & C. As a matter of law, in deciding motions to dismiss, the Court will assume the truth of all material facts properly pleaded in the complaint. See, e.g., Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 663 (9th Cir. 1998). However, California law is clear that “[t]he court need not accept as true, allegations that contradict facts which may be judicially noticed.” United States v. S. California Edison Co., 300 F. Supp. 2d 964, 970 (E.D. Cal. 2004); see also Cansino v. Bank of Am., 224 Cal. App. 4th 1462, 1474 (2014) (rejecting allegation contradicted by judicially noticed facts). Even if Plaintiff’s scant allegations are sufficient to plead the existence of an unincorporated partnership, the judicially noticeable facts establish that a corporation exists and therefore, Plaintiff cannot invent a “partnership” to attach liability where none exists. The judicially noticeable facts demonstrate that there is a real “Integrated Administration,” and that entity has not moved to dismiss on the grounds that it was not the proper entity in this lawsuit. Accordingly, Plaintiff may not take a scrivener’s error to create a partnership out of thin air as an attempt to pin liability on innocent parties where none exists. Therefore, Plaintiff has not sufficiently pled a basis for imposing liability for breach of contract or breach of guaranty upon Bergstein or Scher personally. IV. CONCLUSION For the foregoing reasons, Defendant Scher respectfully requests that the Court dismiss with prejudice the SAC against him in its entirety, and Defendant Bergstein respectfully requests that the Court dismiss with prejudice the Fourth and Fifth claims of the SAC against Defendant Bergstein. Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 21 of 22 Page ID #:514 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 16 DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1318635 DATED: April 10, 2017 GLASER WEIL FINK HOWARD AVCHEN & SHAPIRO LLP By: /s/ Richard W. Buckner PATRICIA L. GLASER G.JILL BASINGER RICHARD W. BUCKNER CAMILLA Y. CHAN Attorneys for Defendants David Bergstein and Eugene Scher Case 2:15-cv-08534-DMG-GJS Document 68 Filed 04/10/17 Page 22 of 22 Page ID #:515 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 1318748 PATRICIA L. GLASER - State Bar No. 55668 pglaser@glaserweil.com G.JILL BASINGER - State Bar No. 195739 jbasinger@glaserweil.com CAMILLA Y. CHAN - State Bar No. 241674 cchan@glaserweil.com GLASER WEIL FINK HOWARD AVCHEN & SHAPIRO LLP 10250 Constellation Boulevard, 19th Floor Los Angeles, California 90067 Telephone: (310) 553-3000 Facsimile: (310) 556-2920 Attorneys for Defendants David Bergstein and Eugene Scher UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION JULIUS R. NASSO, an individual, Plaintiff, v. INTEGRATED ADMINISTRATION, INC, an entity of unknown origin, ET AL., Defendants. CASE NO.: 15-CV-08534-DMG (GJSx) Hon. Dolly M. Gee [PROPOSED] ORDER GRANTING DEFENDANTS BERGSTEIN AND SCHER’S MOTION TO DISMISS SECOND AMENDED COMPLAINT PURSUANT TO F.R.C.P. 12(b)(6) DATE: May 12, 2017 TIME: 9:30 a.m. COURTROOM: 8C Case 2:15-cv-08534-DMG-GJS Document 68-1 Filed 04/10/17 Page 1 of 2 Page ID #:516 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 1318748 Defendants David Bergstein and Eugene Scher’s (collectively “Defendants”) Motion to Dismiss the Second Amended Complaint (“Motion to Dismiss”) of Plaintiff Julius R. Nasso came on for hearing before the Honorable Dolly M. Gee on May 12, 2017 at 9:30 a.m. Having read and considered the Motion to Dismiss, all arguments and evidence in support of and in opposition to the Motion to Dismiss, the argument of the parties presented at the hearing, and the pleadings and other matters on file in this action, the Court finds that Plaintiff (a) failed to state any claim upon which relief can be granted against Defendant Eugene Scher; and (b) failed to state a claim upon which relief can be granted against Defendant David Bergstein with respect to the Fourth and Fifth claims of the Second Amended Complaint. Therefore, good cause exists to dismiss the Second Amended Complaint in its entirety against Defendant Scher and to dismiss the Fourth and Fifth claims of the Second Amended Complaint against Defendant Bergstein. IT IS HEREBY ORDERED that the Motion to Dismiss is GRANTED WITHOUT LEAVE TO AMEND as follows: (a) the Second Amended Complaint is dismissed in its entirety as to Defendant Scher; (b) the Fourth and Fifth claims of the Second Amended Complaint are dismissed as to Defendant Bergstein. IT IS SO ORDERED. DATED: By: Honorable Dolly M. Gee U.S. District Court Judge Case 2:15-cv-08534-DMG-GJS Document 68-1 Filed 04/10/17 Page 2 of 2 Page ID #:517 1 PATRICIAL. GLASER- State Bar No. 55668 }Jglaser@glaserweil.com 2 CT.JILL 'gASINGER- State Bar No. 195739 j basil}ger(a),glaserwe il. com 3 RICHARU W. BUCKNER - State Bar No. 102545 rbuckner@,glaserweil.com 4 CAMILLA-Y. CHAN - State Bar No. 241674 cchan@glaserweil.com 5 GLAS'ER WEIL FINK HOW ARD A VCHEN & SHAPIRO LLP 6 10250 Constellation Boulevard, 19th Floor Los Angeles, California 90067 7 Telephone: (310) 553-3000 Facsimile: (310) 556-2920 8 Attorrn~ys for Defendants 9 David Bergstein and Eugene Scher 10 11 12 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 13 JULIUS R. NASSO, an individual, 14 Plaintiff, 15 v. 16 INTEGRATED ADMINISTRATION, INC, an entity of unknown origin, ET 17 AL., 18 Defendants. 19 20 21 22 23 24 25 26 27 28 Case No. 15-CV-08534-DMG (GJSx) Hon. Dolly M. Gee DEFENDANTS BERGSTEIN AND SCHER'S REQUEST FOR JUDICIAL NO'rICE IN SUPPORT OF THEIR MOTION TO DISMISS SECOND AMENDED COMPLAINT DATE: May 12, 2017 TIME: 9:30 a.m. COURTROOM: 8C REQUEST FOR JUDICIAL NOTICE 1318746 Case 2:15-cv-08534-DMG-GJS Document 68-2 Filed 04/10/17 Page 1 of 18 Page ID #:518 -·- ~ "-Q) \I) tO -\.!) TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 2 Defendants David Bergstein and Eugene Scher (collectively, "Defendants") 3 hereby request, pursuant to Rule 201 of the Federal Rules of Evidence, that the Court 4 take judicial notice of the following documents: 5 1. The fact that there is no corporate entity named "Integrated 6 Administration, Inc." registered with Delaware Secretary of State. The fact that no 7 such corporate entity is registered with the Delaware Secretary of State is evidenced 8 by conducting an online search through the Delaware Secretary of State website, and 9 a true and correct copy of the results of that search is attached hereto as Exhibit A. 10 11 12 13 14 15 16 17 18 2. The fact that "Integrated Administration" is a California corporation, which is registered with the California Secretary of State. A true and correct copy the Certificate of Status, dated August 16, 2016, issued by the California Secretary of State evidencing Integrated Administration as an active California corporation in good standing is attached hereto as Exhibit B. 3. The fact that Kiarash Jam is the agent for service of process for Integrated Administration, which is evidenced by conducting an online search through the California Secretary of State website. A true and correct copy of the Business Entity Detail, dated as of August 23, 2016, found through search is attached 19 hereto as Exhibit C. 20 4. The UCC Financing Statement, file number 2008 1779519, regarding 21 Comerica Bank's lien on the copyright for the film entitled "Nailed," which was filed 22 and recorded with the Delaware Secretary of State. A true and correct copy of the 23 UCC Financing Statement is attached hereto as Exhibit D. 24 5. The UCC Financing Statement Amendment, file number 2010 2473282, 25 regarding Comerica Bank's lien on the copyright for the film entitled "Nailed," which 26 was filed and recorded with the Delaware Secretary of State. A true and correct copy 27 of the UCC Financing Statement Amendment is attached hereto as Exhibit E. 28 Pursuant to Rule 201(b)(2) of the Federal Rules of Evidence, "[t]he court may 1 REQUEST FOR JUDICIAL NOTICE 1318746 Case 2:15-cv-08534-DMG-GJS Document 68-2 Filed 04/10/17 Page 2 of 18 Page ID #:519 -·- ~ a.- Q) \I) ns -C> 1 take judicial notice of a fact that is not subject to reasonable dispute because it ... can 2 be accurately and readily determined from sources whose accuracy cannot reasonably 3 be questioned." 4 Exhibits A and C are the result of public records searches, which are available 5 through the California Secretary of State website and which can be determined by 6 readily accessible resources whose accuracy cannot reasonably be questioned. See 7 L 'Garde, Inc. v. Raytheon Space & Airborne Sys., 805 F. Supp. 2d 932, 937 (C.D. 8 Cal. 2011) (taking judicial notice of search results from California Secretary of State 9 website for names of California corporations); Pension Plan for Pension Trust Fund 10 11 12 13 14 15 16 17 or Operating Eng'rs v. Weldway Constr., Inc., 920 F. Supp. 2d 1034 (N.D. Cal. 2013) (taking judicial notice of date stamped printouts from California Secretary of State website). Exhibit B is a public record issued by the California Secretary of State and is judicially noticeable. Exhibits D and E are public records, which have been recorded with the Delaware Secretary of State, and are properly judicially noticeable. See, e.g., Grant v. Aurora Loan Servs., Inc., 736 F. Supp. 2d 1257, 1264 (C.D. Cal. 2010) (taking judicial notice of deed of sale, which was recorded by the Los Angeles County Recorder's office, and a reference number for the document demonstrated that 18 it was in fact recorded). 19 20 DATED: April 10, 2017 21 22 23 24 25 26 27 28 1318746 GLASER WEIL FINK HOWARD A VCHEN & SHAPIRO LLP By: /s/ Richard W. Buckner PATRICIA L. GLASER G.IlLL BASINGER RICHARD W. BUCKNER CAMILLA Y. CHAN Attorneys for Defendants David BerRstein and EuRene Scher 2 REQUEST FOR JUDICIAL NOTICE Case 2:15-cv-08534-DMG-GJS Document 68-2 Filed 04/10/17 Page 3 of 18 Page ID #:520 EXHIBIT A Case 2:15-cv-08534-DMG-GJS Document 68-2 Filed 04/10/17 Page 4 of 18 Page ID #:521 Delaware.gov Department of State: Division of Corporations HOME About Agency Secretary's Letter Newsroom Frequent Questions Related Links Contact.Us Office Location SERVICES Pay Taxes File UCC's Delaware La\\IS Online Name Reservation EntitySMrch Status Validate Certificate customer Service Survey INFORMATION Corporate Forms Corporate Fees UCC Forms and Fees Taxes Expedited Services Service of Process Registered Agents GetCorporale Status Submitting a Request How to Form a New Business Entity Certi1ications, Apostilles & Authentication of Documents Governor i General .Li.ssembly l Courts ! E.lecied Officials I Stats Agencies · Frequently Asked Quest;ons To retrieve information on a Delaware entity, Key in the name of the entity you are sea'Ching. The search results will return both active and inactive entities from our database. This is not -·an indication of the current status of an sntity. The information provic!ecl in this application is ·real time and reflects the information on our database as of the date of the search. When the . list of names is returned click the name and the information page will be returned. . The entity information providec! on this website, free of cr.arge, consists of the entity name, file numbar, incorporation/formation date, registerad agent name, address. phone number and residency. However, additional imormation can be obtained for a fee. If you would like to order a Certificate oi Status, Certified Copy of a filed document or a Plain . Copy of same, please contact a Delaware online agent. Please~- For mora information please read the Freouent!y Asked Questions page. · * Required Field ' * Entity Name: : integrated administration ' or [This fiek:I is not case sensitive.] General lnfonnation Name Search *File Number. No Record found ENTITY NAME 'Search :To ensura everyone using the Division of Corporations search tools hes the best experience ; possible, the Division strongly discourages the use oi automated tools to search or mine 'data We also discourage excessive and repeated searches that may have a negative impact 'on our systems and customer experience. Failure to use these tools in a responsible manner : may result in the suspension of your access to utilize this service. All bl Characters For help on a particular field click on the Field Tag to take you to the help araa. s!te map 1 privacy I abo~t this sits contact us I translate Case 2:15-cv-08534-DMG-GJS Document 68-2 Filed 04/10/17 Page 5 of 18 Page ID #:522 EXHIBITB Case 2:15-cv-08534-DMG-GJS Document 68-2 Filed 04/10/17 Page 6 of 18 Page ID #:523 ENTITY NAME: State of California Secretary of State CERTIFICATE OF STATUS INTEGRATED ADMINISTRATION FILE NUMBER: FORMATION DATE: TYPE: JURISDICTION: STATUS: C3399641 08/09/2011 DOMESTIC CORPORATION CALIFORNIA ACTIVE (GOOD STANDING) I, ALEX PADILLA, Secretary of State of the State of California, hereby certify: The records of this office indicate the entity is authorized to exercise all of its powers, rights and privileges in the State of California. No information is available from this office regarding the financial condition, business activities or practices of the entity. IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the State of California this day of August 16, 2016. NP-25 (REV 0112015) ALEX PAD ILLA Secretary of State RKS Case 2:15-cv-08534-DMG-GJS Document 68-2 Filed 04/10/17 Page 7 of 18 Page ID #:524 EXHIBITC Case 2:15-cv-08534-DMG-GJS Document 68-2 Filed 04/10/17 Page 8 of 18 Page ID #:525 -: "'."-, ~:- --_ --~ --~=- ~ - :~~:~-T __ :;;. ''< -· <'-;~: ·, ~~f~:~ ~~J~-~~rnall 13. SEND ACKNOWLEDGMENT TO: (Namo and Address) lchristopher Spicer, Esq. Akin Gump Strauss Hauer & Feld LLP 2029 Century Park East Suite 2400 Los Angeles, CA 90067 L _J DEL..~~ DEP1'-'i:'?.T1.1El!.'T OF ST&"'E U. C. C. FTL'ING SECTION FILED 07: 12 PM 05/22/2008 INli.'11'.L FILING # 2008 17i9519 SK"v: 080593293 THE ABOVE SPACE IS FOR FILING OFFtCE USE ONLY 1. DEBTOR'S o:ACT FUU. LEGAL NAME· ln.,..1or•ly111a doblor nnmu !la or lbl - do no1 abbrovlo1n or combine"""""' ta. oRGllNIZATION"S NAME ·--·--- DANDELION HOLDINGS, LLG OR lb. INDIVIDU.'J. "S LAST N E FIRST NAME 10 MAILING >.DD RESS CITY MIDDLE NAME SUFFIX STATE l'OSTALCODe COUNTRY 10100 Santa Monica Boulevard, Suite 1250 Los Angeles CA 90067 USA ~1d.,...,,.TllX"°'""D~#~:~S~S~N~O~R~E~IN--.~AO=~=L~l~NFr.O~R~e~1~ •• ~TY~P~eOF="'o~R~O~/\N~l2A...,...,TO=N,.,.....--1·~tt~.J~UA~IS~D~~~T~IO~N:OF~ORGA'==~N~IZ~A~Tl~ON,,_--~,A.OAGAMZATIONi\Lio1.~·~--'--- ~~~Z/ITION Limited LlabllHy Company Delaware 4502613 NONE: 2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME· ln•1tn only J1JU1 doelOr namo (2• ar 2~)· do nol •btvm.1.110., mmblnn n•n10n 211. ORGllNIZATION"S NAME -----· . ---·----- OR l!b, INDMDUAL"S U\ST NAME 2o, !MR.IN 0 llDDAESS 26. Tr.¥. ID f: SSN OR EIN /\DD"L INPO RE 2u. TYPE OF OAGANIZA TION ORG/\NIZATION DEBTOR FIRST NAME 21. JURISDICTION OF ORGllNIZATION 3. SECURED PARTY'S NAME (or NAME ..c TOTAL ASSIGNEE o1 ASSIGNOR SIPJ ·Inion only lmll "'"'""'" llB•lyn•ma (Jn..- 3hl 3o. ORGANIZ/\TION"S NAME COMERICA BANK OR 3b. INDIVDUAL "S LllST NAME :ic. MM.ING AOORESS Attn.: Todd Stainer 75 East Trimble Road 4. This FINANclNG STATEMENT COllllTI Ito followlna collelarat FIRST NAME C/'lY San Jose MIDDl.E NAME SUFFIX STATE POSTAL oooe COUNTRY ,.Q, ORGllNIZAnON/\L 10 #. hnv NONE MIDDLE NAME SUFFIX STATE POST.'J. CODE COUNTRY CA 95131 USA This Financing Statemen1 cavers the collateral set forth on Schedule A attached hereto and incorporated herein by this reference. DEBTOR: DANDELION HOLDINGS, LLC ("Nailed") FILtNG OFFICE COPY-NATIONAi. UCO FINANCING STATEMENT (FORM UCC1) (REV. 07129198) . - -··· ··- _____________________ __. Case 2:15-cv-08534-DMG-GJS Document 68-2 Filed 04/10/17 Page 11 of 18 Page ID #:528 Debtor: Secured Party: Item 4: SCHEDULE A UCC-l FINANCING STATEMENT (DELAWARE) DANDELION HOLDINGS, LLC COMERJCA BANK All of the Debtor's right, title and interest in and to any and all accounts, deposit accounts (including the Collection Account and the Production Bank Accounts), equipment, general intangibles, contract rights, inventory, investment property, letter of credit rights, negotiable instruments, copyrights, trademarks, patenls, documenls, fixtures, chaUel paper, supporting obligations, and all other personal pl'Operty of the Debtor and any proceeds and products of the foregoing, including insurance proceeds, whether now owned or hereafter acquired from time to time or arising and regardless of where located but excluding in all cases the Excluded Collateral (as defined herein) (collectively referred to as the "Collateral''), including, but not limited to: (a) All rights of every kind and nature (including, without limitation, copyrights) in and 1.o the screenplay entitled Nailed, US Copyright Office registration number [PENDING], wrilien by Kristin Gore (including any and all drafts, versions and variations of such screenplay) and any other literary, musical, dramatic or other literary material of any kind or nature upon which, in whole or in part, the motion picture tentatively entitled Nailed (by whatever title such motion picture is now or may hereafter become known, the "Pilm") is or may be based, or from which it is or may be adapted or inspired or which may be or has been used or included in the Film including, without limitation, all scripts, scenarios, screenplays, bibles, stories, treatments, novels, outlines, books, titles, concepts, manuscripts or other properties or materials of any kind or nature in whatever state of completion and all drafts, versions and variations thereof (all of the foregoing is collectively referred to herein as the "Literary Property"); (b) All physical properties of every kind or nature of or relating to the Film and all versions thereof, including, without limitation, all physical properties relating to the development, production, completion, delivery, exhibition, distribution or other exploitation of the Film, and all versions thereof or any part thereof, including, without limitation, the Literary Property, and all Preprint Materials (as defined in Subsection (c) below) (all of the foregoing is collectively referred to herein as the "Physical Properties"), and any and all rights of access to removal and transfer of, and duplication and reproduction of, the Physical Properties; (c) All physical elements of the Film, including all negatives, duplicate negatives, fine grain prints, soundtracks, positive prints (cut-outs and trims excepted), and sound, all video formats (including PAL/NTSC), and other physical properties in connection with the Film and the trailer for the Film, exposed film, developed film, positives, negatives, prints, answer prints, special effects, pre-print materials (including interpositives, negatives, duplicate negatives, 120693.0001 WEST 6232594 v2 2 I Case 2:15-cv-08534-DMG-GJS Document 68-2 Filed 04/10/17 Page 12 of 18 Page ID #:529 internegatives, color reversals, intermediates, lavenders, fine grain master pl"ints and matrices and all other forms of pre-print elements which may be necessary or useful to produce prints or other copies or additional pre-print elements, whether now known or hereafter devised) soundtracks, recordings, audio and video tapes and discs of all types and gauges, cut-outs, trims, non-analog recordings and tapes, including without limitation, any video digital recordings and HDTV format recordings, and any and all other physical properties of every kind and nature relating to the Film in whatever state of completion, and all duplicates, drafts, versions, variations and copies of each thereof (all of the foregoing is collectively referred to herein as the "Preprint Matarials"}; (d) All rights of every kind or nature in and to any a11d all music and musical compositions created for, used in or lo be used in connection with the Film including, without limitation, all copyrights therein and all rights to ):lerform, copy, record, re-record, p1·oduce, publish, reproduce or synchronize any or all of said music and musical compositions as well as all other rights to exploit such music including record, soundtrack recording, and music publishing rights; (e) All collateral, allied, ancillary, subsidiary, publishing and merchandising rights of every kind and nature, without limitation, derived from, appurtenant lo or related to the film or the Literary Property or any part thereof, including. without limitation, all production, exploitation, reissue, remake, sequel, serial or series production rights by use of film, tape or any other recording devices now known or hereafter devised, whether based upon, derived from or inspired by the Film, the Literary Property or any part thereof; all rights to use, exploit and license others to use or exploit any and a!I novelization, publishing, commercial tie-ups and merchandising rights of every kind and nature, including, without limitation, all novelization, publishing, merchandising rights and commercial tie-ups arising out of or connected with or inspired by the Film or the Literary Property, the title or titles of the Film, the characters appearing in the Film or said Literary Property and/or the names or characteristics of said characters, and including further, without limitation, any and all commercial exploitation in connection with or related to the Film, all remakes or sequels thereof and/or said Literary Property; (f) To the extent necessary or desirable to complete the Film, all rights of every kind or nature, present and future, in and to all agreeme11ts relating to the development, production, completion, delivery and exploitation of the Film, including; without limitation, all agreements for personal services, including the services of writers, directors, cast, producers, special effects personnel, personnel, animators, cameramen and other creative, artistic and technical sta.IT and agreements for the use of studio space, Equipment, facilities, locations, animation services, special effects services and laboratory contracts; (g) All insurance and insurance policies heretofore or hereafter placed upon the Film or the insurable properties thereof and/or any Person or Persons engaged in the development, production, completion, delivery or exploitation of the Film and the proceeds thereof; (h) All copyrights, rights in copyrights, interests in copyrights and renewals and extensions of copy1·ights, domestic and foreign, common law and statutory, heretofore or 120693.0001 WEST 6232594112 3 Case 2:15-cv-08534-DMG-GJS Document 68-2 Filed 04/10/17 Page 13 of 18 Page ID #:530 hereafter obtained upon the Film or the Literary Property or any part thereof, and the right (but not the obligation) to make publication thereof for copyright purposes, to register a claim under copyright, and the right (but not the obligation) to renew and extend such copyrights, and the right (but not the obligation) to sue in the name of Debtor or in the name of the Secllred Party for past, present and future infringements of copyright; (i) All rights lo produce, acquire, release, sell, distribute, subdistribute, lease, sublease, market, license, sublicense, eKhibit, broadcast, transmit, reproduce, publicize or otherwise exploit the Film, the Literary Property and any and all rights therein (including, without limitation, the rights referred to in Subsection (d) above) in perpetuity, withou.t limitation, in any manner and in any media whatsoever throughout the universe, including, without lirnitat.ion, by projection, radio, all forms of television (including, without limitation, free, pay, toll, cable, sustaining subscription, sponsored and direct satellite broadcast), in theaters, non-theatrically, on cassettes, cartridges and discs and by any and all other scientific, mechanical or electronic means, methods, processes or devices now known or hereafter conceived, devised or created; · U) All rights of the Debtor of any kind or nature, direct or indirecl, lo acquire, produce, develop, reacquire, finance, release, sell, distribute, subdistribute, lease, suhleasc, market. license, sublicense, exhibit, broadcast, transmit, reproduce, publicize, or olherwise exploit the Pllm, or any rights in the Film, including, without limitation, pursuant to agreements between Debtor and any Affiliate of Debtor which relate to the ownership, production or financing of the Film; (k) All contract rights and general intangibles which may arise in connection with the creation, production, completion, delivery, financing, ownership, possession or exploitation of the Film or which grant to any Person any right to acquire, produce, develop, reacquire, finance, release, sell, distiibute, subdistribute, lease, sublease, market. license, sublicense, exhibit, broadcast. transmit, reproduce, publicize, or otherwise exploit the Film or any rights in the Film and all collateral, allied, ancillary, subsidiary and merchandising rights therein, and all prope1ties and things of value pertaining thereto and all products and proceeds thereof whether now in existence or hereafter made, acquired or produced and the rights and property set forth in Subsections (a) through (n) herein, including, without limitation, all such rights pursuant to agreements between Debtor and any Affiliate of Debtor which relate to the ownership, production or financing of the Film; (I) All rent, revenues, income, compensation, products, increases, proceeds (including the proceeds of letters of credit) and profits or other property obtained or to be obtained from the production, release, sale, distribution, subdistribution, lease, sublease, marketing, licensfng, sublicensing, exhibition, broadcast, transmission, reproduction, publication, ownership, exploitation or other uses or disposition of the Film and the Literary Property (or any rights therein or part thereof), in any and a II media. without limitation, the properties thereof and of any collateral, allied, ancillary, merchandising and subsidiary rights therein and thereto, and amounts recovered as damages by reason of unfair competition, the infringement of copyright, breach of any contract or infringement of any rights, or derived therefrom in any manner whatsoever; 120893.0001 WEST 6232.594 v2 4 I Case 2:15-cv-08534-DMG-GJS Document 68-2 Filed 04/10/17 Page 14 of 18 Page ID #:531 (m) Any and all documents, receipts or books and records, including, without limitation, documents or receipts of any kind or nature issued by any pledgeholder, · warehouseman or bailee with respect to the Film and any element thereof; (n) Afl accounts, accounts receivable, contract rights, and general intangibles (as such terms are defined in the UCC) in connection with or relating to the Film and to the Physical Properties, including all rights to receive the payment of money under present or future contracts or agreements (whether or not earned by performance) from the sale, distribution, exhibition, disposition, leasing, subleasing, licensing, sub licensing and other exploitation of the Film or the Literary Property or any part thereof or any rights therein in any medium, whether now known or hereafter developed, by any means, method, process or device in any market; (o) All of Debtor's right, title and interest in, to and under the Distribution Agreemenls, the Licensing Intermediary License Agreements and the Sales Agency Agreements, including Debtor's rights to receive payments thereunder, and all other rights to receive film rentals, license fees, distribution fees, producer's shares, royalties and other amounts of every description including, without limitation, from (1) theatrical exhibitors, non-theatrical exhibitors, television networks and stations and airlines, cable· television systems, pay television operators, whether on a subscription, per program charge basis or otherwise, and other exhibitors, (2) distributors (including without limitation, the Sales Agent and the Distributors), subdistributors, lessees, sublessees, licensees and sublicensees (including any Affiliate of Debtor) and (3) any other Person that distributes, exhibits or exploits the"Film or the Literary Property or elements or components of the Film or the Literary Property or rights relating thereto; (p) All funds in or to be credited to the Production Bank Accol111ts or any production bank account maintained wi1h respect to the Film; (q) A II machinery, electrical and electronic components, equipment, fixtures, furniture, office machinery, vehicles, trailers, implements and other tangible personal property of every kind and description used or useful in connection with the Film (including, without limitation, all wardrobe, props, mikes, scenery, sound stages, movable, permanent or vehicular dressing rooms, sets, lighting equipment; cameras and other photographic, sound recording and editing equipment, projectors, film developing equipment and machinery) and all goods of like kind or type hereafter acquired by Debtor in substitution or replacement thereof, and all additions and accessions thereto, wherever any of the foregoing is located (all of the foregoing is collectively referred to herein as the "BQuipment''); (r) All title or titles of the Film and all of Debtor's rights to the exclusive use thereof including rights protected pursuant to trademark, service mark, unfair competition and/or other Jaws, rules or principles of law or equity; (s) A II cash and cash equivalents of Debtor and all drafts, checks, certificates of deposit, notes, bills of exchange and other writings or negotiable instruments which evidence a right to the payment of money and are not themselves security agreements or leases and are of a 12069J.0001 WEST 6232594 v2 5 Case 2:15-cv-08534-DMG-GJS Document 68-2 Filed 04/10/17 Page 15 of 18 Page ID #:532 type which is in the ordinary course of business transferred by delivery with any necessary endorsement or necessary assignment whether now owned or hereafter acquired (t) All inventions, processes, formulae, licenses, patents, patent rights, trademarks, trademark rights, service marks, service mark rights, trade names, trade name rights, logos, indicia, corporate and Debtor names, business source or business identifiers and renewals and extensions thereof, domestic and foreign, whether now owned or hereafter acquired, and the accompanying good will and other like business property rights relating to the Film, and the right (but not the obligation) to register claims under trademark or patent and to renew and extend such trademarks or patents and the right (but not the obligation) to sue in the name of Debtor or in the name of the Secured Party for past, present or future infringement of trademark or patent; (u) All Pre-Delivery Deposits and any other property of any kind of the Debtor in the possession or under the control of the Secured Party or a bailee of the Secured Party or any of the Secured Party's Affiliates; (v) The Collection Account, the Production Bank Account(s) and all funds deposited in or to be credited to such accounts; and (w) All accessions to, substitution for, and replacements, products and proceeds of any of the foregoing, including, without limitation, proceeds of any insurance policies, claims against third Persons, with respect to the foregoing. The respective rights of Debtor and Secured Party with respect to the Col lateral are subject to Loan and Security Agreement among Nailed Productions, LLC, a Delaware limited liability company, the Debtor, and Secured Party (as such agreement may be amended, modified, supplemented, renewed or replaced, the "Loan Agreement"). Capitalized terms used herein without definition shall have the respective meanings ascribed to such terms in such Loan Agreement. "Excluded Collateral" means any and all tax credits or rebates payable by the State of South Carolina, or any city therein, or any governmental agency thereof with respect to the Film. 120898.0001 WEST 6232594 V2 6 I Case 2:15-cv-08534-DMG-GJS Document 68-2 Filed 04/10/17 Page 16 of 18 Page ID #:533 EXHIBITE Case 2:15-cv-08534-DMG-GJS Document 68-2 Filed 04/10/17 Page 17 of 18 Page ID #:534 UCC f:J.N~NC_IN-G STA.T~aN.tAME~D.MENT A. NAME & PHONE OF CONTACT AT FILER [optional] A!l'TN: Bi>¥ J. Re\res, Esg~·~~~~~~~~~~~~~3~1~0~2~8~67~2~0'-"'IO B. SEND ACKNOWLEDGMENT TO: (Name and Address) I NAIIED !DAN AO;!O':!Srnoli COMl?ANY, LLC 1100 GIZ:l>lDON AV.l!:NOE 19m FLOOR l_::>s ANGl!:LES CA 90024 1a INITIAL FINANCING STATEMENT FILE# 2008 1779519 _J DELAWARE DEPARTMENT OF STATE U.C.C. FILING SECTION FILED 07:03 PM 07/15/2010 INITIAL FILING # 2008 1779519 AMENDMENT # 2010 2473282 SRV: 100746270 1 1b. This FINANCING STATEMENT AMENDMENT is n lo be filed [for record] [or recorded) in the REAL ESTATE RECORDS. 2.1 J TERMINATION: Eflec:tiveness of lhe Financing Statement id~ified above is terminated with respec;t to ~urlty inlerest(s) of the Secured Party auJhorizing this Termination Statement. 3. LJ CONTINUATION: Effectiveness of the F"111ancing Slatamem identified above with respect to securily interest(s) of the Secured Party authorizing this Continuation Statement is continued for the additional period provided by applicable law. 4. # ASSIGNMENT {fuD or partial): Gil'!! name of assignee in Item 7a or 7b and address of assignee in ttem 7c; and also give name of assignor in Item 9. 5. AMENDMENT (PARTY INFORMATION): This Amendment affects Secured Party ot record. Check only .Q!lll of lhese two boxes. Also check l!!m of the following 111ree· boxes ii!ll! provide appropriate information in items 6 andlor 7. CHANGE name and/or address: Give current record name in ttem 6a or Sb; also give new name ff name chan e in item 7a or 7b and/or new address rt address in item 7c. 6. CURRENT RECORD INFORMATION: Sa. ORGANIZATION'S NAME COMl!:IUCA BANK OR 6b. INDIVIDUAL'S LAST NAME FIRST NAME 7. CHANGED (NEW) OR ADDED INFORMATION: 7a. ORGANIZATION'S NAME NlUI.l!:D IDAbT ~SI':rION CDMeANY, LI.C OR 7b. INDIVIDUAL'S LAST NAME FIRST NAME 7c. MAILING ADDRESS CITY. DB.ETE name: Give record name to be deleted in ~em Sa or Sb. 1100 GLENDObT AVENCIE 19m FIOOR IDS ANGl!:IES ---- 17e, TYPE OF ORGANIZATION 7l. JURISDICTION OF ORGANIZATION I I 8. AMENDMENT (COU.ATERAL CHANGE}: check only Qll!!box. Describe collateral Odeleled ~r Oadded, or give entireOrestated collateral description, or describe collateral lJassigned. ADD name: Complete ttem 7a or 7b, and also item 7c· also com Jete items 7rJ.7 if 1cable. MIDDLE NAME SUFFIX MIDDlf NAME SUFFIX STATE I POSTAL CODE COUNTRY CA 90024 us Full assignment of the collateral as set forth in Schedule A of Delware u.c.c. Financing Statement 2008 1779519 filed May 22, 2008. 9. NAME of SECURED PARTY of RECORD AUIHORIZING THIS AMENDMENT Came.rica BaDlc 10. OPTIONAL FILER REFERENCE DATA Case 2:15-cv-08534-DMG-GJS Document 68-2 Filed 04/10/17 Page 18 of 18 Page ID #:535