cirgadyne incorporated v wiseman park llc - cross complaint

• •

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

LOS ANGELES CENTRAL DISTRICT

LAWRENCE M. ADELMAN, ESQ. SBN 59058 r ( . ...Jf t:t"l J.nULAW OFFICES OF LAWRENCE M. ADELMAN '0,,1,) ;\'~6hLL~ Sl)V1'RIU)t c'OURT

5850 CANOGA AVENUE, SUITE, 400 MA~' 0 n //!P!WOODLAND HILLS, CA 9136706554 .. ! ... " iff",

Phone: 818-992-8005 ,ICHN A.clAP!'E,'" .Fax: 818-71003844 /i ." / ,~.l,Lfdil<

Attorney for Defendant and Cross-Complainant Wiseman Park, fl2~~e~~~tabilitycompany, doing business as Kung Pao Kitty

CIRGADYNE, INCORPORATED, aCalifornia corporation, doing business asLIQUOR LICENSE SPECIALISTS and LLS;ROES I through 30, inclusive,

WISEMAN PARK, LLC, a California limitedliability company, individually and doingbusiness as Kung Pao Kitty, and DOES Ithrough 10, inclusive,

Honorable Marlene KristovichDepartment 80

CASE NO. 07K04873

CROSSoCOMPLAINT BY DEFENDANTWISEMAN PARK, LLC, DOING BUSINESSAS KUNG PAO KITTY, AGAINSTPLAINTIFF CIRGADAYNE,INCORPORATED, DOING BUSINESS ASLIQUOR LICENSE SPECIALISTS AND LLS,FOR:

1. DELCARATORY RELIEF;2. CONSTRUCTIVE FRAUD BY

FIDUCIARY;3. FRAUD BASED ON INTENTIONAL

MISREPRESENTATION AND/ORCONCEALMENT;

4. FRAUD BASED ON NEGLIGENTMISREPRESENTATION;

5. FRAUD BASED ON PROMISEMADE WITHOUT INTENT OFPERFORMANCE: AND

6. RESCISSION, .

, :.'.. \-\.r\'U\' ~

Limited Civil Action with Demand inCross-Complaint over $10,000.00

Cross-Complainant,

Cross-Defendants.

vs.

vs.

CIRGADYNE, INCORPORATED, a California)corporation, individually and doing business as )Liquor License Specialists and LLS, l

Plaintiff, l)

})

l))

Defendants. ))-------=:..:::.:==----WISEMAN PARK, LLC, a California limited )liability company, doing business as KUNG )PAOKITTY, l

~l))))))))))

------------)

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CROSS-COMPLAINT BY DEFENDANT WISEMAN PARK, LLC

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COMES NOW, defendant and cross-complainant WISEMAN PARK, LLC, a Californi

limited liability company, doing business as KUNG PAO KITTY (hereinafter referred to a

"Cross-Complainant"), who alleges as follows:

I

GENERAL ALLEGATIONS

1. Cross-Complainant is now and at all times relevant hereto was a California limite

liability company in good standing, doing business as Kung Pao Kitty, with its principal place 0

business located at 6445 Hollywood Boulevard, within the City and County of Los Angeles, Stat

of California, Postal Code Zip 90028 and the jurisdiction of the Los Angeles Superior Court. Pau

Oberman ("Oberman") was at all times relevant hereto a member and manager of Cross

Complainant and all actions taken by Oberman specified in this cross-complaint were taken withi

the course and scope of his authority in the foregoing positions for and on behalf of Cross

Complainant, at its direction or with its knowledge, approval, ratification and/or consent.

2. Cross-Complainant is informed and believes and on such basis alleges that at all

times relevant hereto cross-defendant Cirgadyne, Incorporated, doing business as Liquor Licens

Specialists and LLS (hereinafter referred to as "Cross-Defendant Cirgadyne") was a Califomi

corporation in good standing with its principal place of business located at 17383 Sunse

Boulevard, #A310, within the Pacific Palisades postal district, the City and County of Lo

Angeles, State of California, Postal Zip Code 90272 and the jurisdiction of the Los Angele

Superior Court.

3. The true names and capacities of cross-defendants Roes 1 through 30, inclusive, ar

presently unknown to Cross-Complainant who therefore sues said cross-defendants by such

fictitious names. Cross-Complainant will amend this cross-complaint to include said Roe cross

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defendants' true names and capacities when the same have been ascertained. Cross-Complainant i

informed and believes, and on such basis alleges, that each of the Roe cross-defendants i

responsible in some manner for the occurrences herein alleged and that Cross-Complainant'

injuries and damages hereinafter alleged were proximately caused by said Roe cross-defendants'

actions andlor failure to act.

4. At all times relevant hereto, Cross-Defendant Cirgadyne and cross-defendants Roe

1 through 30, inclusive, were the principals, agents, officers, directors, shareholders, employees,

joint venturers, partners, members, managers, andlor servants of each of their codefendants, and i

doing andlor in failing to do the things herein mentioned were acting within the course and scop

of their authority as such principals, agents, officers, directors, shareholders, employees, join

venturers, partners, members, managers, andlor servants, with the permission, consent

knowledge, at the direction of, andlor with ratification and approval by, their codefendants.

5. All of the transactlons herein specified and the execution of the writte

Acknowledgment dated November 15, 2006 (the "Acknowledgment") attached as Exhibit A t

Cross-Defendant Cirgadyne's unverified complaint on file in this action (the" Complaint"

occurred within the City and County of Los Angeles, State of California, and within jurisdictio

and venue of the Central District of the Los Angeles Superior Court. The contents of th

Acknowledgment are incorporated herein by reference.

II

FIRST CAUSE OF ACTION FOR DECLARATORY RELIEF AGAINST

CROSS-DEFENDANT CIRGADYNE

6. Cross-Complainant refers to and incorporates herein by reference paragraphs 1

through 5, inclusive, above.

7. On or about November 1, 2006, Oberman contacted Cross-Defendant Cirgadyn

for the purpose of acquiring a Type 47, On-Sale General, Alcoholic Beverage License (

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"License") for Cross-Complainant's restaurant, Kung PilO Kitty located at 6445 Hollywoo

Boulevard, Los Angeles, California 90028 (the "Restaurant"). Oberman spoke with Craig Bloc

("Block"). Cross-Complainant is informed and believes, and on such basis alleges, Block is th

president, a director and a shareholder of Cross-Defendant Cirgadyne, and that all actions taken b

Block were within the course and scope of his authority in the foregoing positions for and a

behalf of Cross-Defendant Cirgadyne, at its direction or with its knowledge, approval, ratificatio

andlor consent. Oberman inquired of Block as to the availability of a License for the Restaurant.

Block advised Oberman he had two such licenses available. Oberman advised Block he wa

willing to pay $80,000.00 for a License. Block advised Oberman a License would probably cos

more than $80,000.00 but to make an offer of $80,000.00 for a License and to submit a deposit a

$8,000.00 (the "Deposit") to Block at Cross-Defendant Cirgadyne as security for the offer. Bloc

further advised Oberman to make the Deposit by way of a check made payable to Cross

Defendant Cirgadyne. Prior to Obennan's submission of an offer and the Deposit to Block a

Cross-Defendant Cirgadyne Oberman inquired of Block if the Deposit would be refundable if th

seller did not accept the $80,000.00 purchase offer for a License. Block represented, warranted

and promised Oberman the Deposit would be fully refundable if the seller rejected Cross

Complainant's purchase offer. At no time prior to Cross-Complainant's submission of it

$80,000.00 purchase offer and the Deposit to Block at Cross-Defendant Cirgadyne did Block 0

anyone else at Cross-Defendant Cirgadyne advise Oberman Cross-Complainant would have t

execute the Acknowledgment or a similar document as a condition to receiving a full refund of th

Deposit if Cross-Complainant's $80,000.00 purchase offer was not accepted.

8. In reliance on Block's foregoing representation, warranty and promise concernin

the full and unconditional refundability of the Deposit Oberman requested Block to forward him

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written purchase offer for a License for Oberman's signature on behalf of Cross-Complainant.

Block confirmed he would forward a written purchase offer form to Oberman for $80,000.00 fO!

the purchase of a License and instructed Oberman to sign the offer form and return it to Block a

Cross-Defendant Cirgadyne together with Cross-Complainant's check in the amount of th

Deposit made payable to Defendant Cirgadyne. The written $80,000.00 purchase offer forwarde

to Oberman by Cross-Defendant Cirgadyne, signed by Oberman and returned to Block at Cross

Defendant Cirgadyne confirmed, among other things, the Deposit would be "100% refundabl

until such time as the Seller has accepted your offer". On or about November 8, 2006 Oberma

signed and returned to Block a written purchase offer for a License in the amount of $80,000.00.

Rather than by check, Cross-Complainant -remitted the Deposit to Cross-Defendant Cirgadyne b

way of an electronic bank transfer facilitated by Oberman.

9. On or about November 13, 2006 Block informed Oberman one of the sellers of

License made a counter offer of $88,000.00, plus expenses. Block requested authorization t

proceed on the foregoing counter-offer on behalf of Cross-Complainant. At this time, Bloc

futiher confirmed to Oberman the Deposit was fully refundable. Oberman never gave Block sue

authority and Cross-Complainant's original purchase offer of $80,000.00 was never accepted b

any seller of a License. On the same date, Oberman and Block discussed the status of Cross

Complainant's unaccepted $80,000.00 purchase offer and discussed whether Cross-Complainan

desired to make a counter-offer. Oberman asserted he only made the original $80,000.00 purchas

offer and submitted the Deposit to Cross-Defendant Cirgadyne because Block told Oberman bot

of the sellers of a License had assured Block they were willing to sell their license for $80,000.00.

Block disagreed and Oberman advised Block he did not wish to make a counter-offer. On or abou

November 14, 2006 Oberman advised Block Cross-Complainant had made arrangements wit!

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another seller whose identity had not been disclosed to' Oberman to purchase a License an

requested, through Block, that Cross-Defendant Cirgadyne return the Deposit to Cross

Complainant. Oberman advised Block he would come by on November 15, 2006 to pick up th

Deposit. Block advised Oberman Block would be waiting for Oberman at Cross-Defendan

Cirgadyne on November 15, 2006.

10. On November 15, 2006 prior to arriving at the business offices of Cross-Defendan

Cirgadyne Oberman received correspondence from Jon Menaster ("Menaster") at Cross

Defendant Cirgadyne informing Oberman before Cross-Defendant Cirgadyne released a chec

refunding the Deposit to Cross-Complainant, Cross-Complainant must sign the Acknowledgmen

and return it to Cross-Defendant Cirgadyne. The Acknowledgment accompanied Menaster'

cOlTespondence. Cross-Complainant is informed and believes, and on such basis alleges>

Menaster, at all times relevant to this cross-complaint, was an authorized agent or employee 0

Cross-Defendant Cirgadyne and all actions taken by Menaster were within the course and scope 0

his authority in the foregoing positions for and on behalf of Cross-Defendant Cirgadyne, at it

direction or with its knowledge, approval, ratification and/or consent. On November 14, 200

Obennan received notice the escrow with the unidentified seller of the License Cross-Complainan

was purchasing through another finder would be opening the following day. At no time prio

Oberman's actual receipt of the Menaster correspondence and the Acknowledgment on Novembel

15, 2006 did Oberman or anyone else at Cross-Complainant know the identifies of the two seller

of a License with whom Block and Cross-Defendant Cirgadyne had purportedly been dealing 0

behalf of Cross-Complainant and whose identifies were first revealed to Oberman by Cross

Defendant Cirgadyne in the Acknowledgment. More specifically, on November 14, 2006 whe

Oberman agreed to open escrow with the unidentified seller from whom Cross-Complainan

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ultimately purchased a License through another finder and which unidentified seller had agreed t

sell a License to Cross-Complainant for $85,000.00, neither Oberman nor anyone else at Cross

Complainant knew Block had presented Cross-Complainant's original $80,000.00 purchase offe

to either or both of the sellers specified in the Acknowledgment. Prior to November 15, 200

neither Block nor anyone else at Cross-Defendant Cirgadyne had disclosed the identities of an

seller to whom Block or anyone else at Cross-Defendant Cirgadyne had presented Cross

Complainant's $80,000.00 purchase offer.

11. When Oberman received the Acknowledgment from Menaster on November 15,

2006 this was the first instance when Oberman and Cross-Complainant were made aware of th

fact Block and Cross-Defendant Cirgadyne were asserting they had presented Cross

Complainant's original $80,000.00 purchase offer to the sellers specified in the Acknowledgment.

One of the sellers, "MacPhearson-Sidel", was the seller from whom Cross-Complainant ultimatel

purchased a License for $85,000.00 through another finder who had been contacted by Oberma

on November 13, 2006 for the purpose of purchasing a License. At the time Oberman made th

latter contact neither Oberman nor anyone else at Cross-Complainant knew the identity of an

seller to whom Block and Cross-Defendant Cirgadyne had presented Cross-Complainant'

$80,000.00 purchase offer for a License. At the time Oberman agreed to proceed with anothe

seller and purchase a License for $85,000.00 through another finder, neither Oberman nor anyon

else at Cross-Complainant knew the identity of the seller who had accepted Oberman's $85,000.0

purchase offer, later disclosed to Oberman to be "MacPhearson-Sidel".

12. On November 15,2006, after Oberman had already agreed to purchase a Licens

from "MacPhearson-Sidel" for $85,000.00, as specified above, Oberman signed and returned th

Acknowledgment to Block at Cross-Defendant Cirgadyne because Cross-Defendant Cirgadyn

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made it clear to Oberman the Deposit would not be returned to Cross-Complainant unless an

until the Acknowledgment was signed and returned to Cross-Defendant Cirgadyne. At the tim

Oberman signed the Acknowledgment Cross-Complainant was in the midst of purchasing

License for $85,000.00 and was in the process of remodeling and refurbishing the Restaurant.

Cross-Complainant needed the Deposit and Oberman had been given no choice by Block,

Menaster and Cross-Defendant Cirgadyne but to sign and return the Acknowledgment if Cross

Complainant wanted a refund of the Deposit. At the time Block, Menaster and Cross-Defendan

Cirgadyne asserted Oberman must sign and return the Acknowledgment to receive a refund ofth

Deposit, Cross-Defendant Cirgadyne, through Block and/or Menaster, knew, or should hav

known through reasonable care and investigation, Block had previously represented, warrante

and promised Oberman the Deposit would be fully refundable in the event Cross-Complainant'

$80,000.00 purchase offer was not accepted by a seller of a License, that neither Block nor an

other person at Cross-Defendant Cirgadyne had previously informed Oberman th

Acknowledgment or a similar document would have to be signed by Cross-Complainant as

condition to Cross-Complainant's receiving a refund of the Deposit, and that Oberman had relie

on the foregoing representation, warranty and promise by Block that the Deposit would be full

refundable to Cross-Complainant without any stated condition when Oberman submitted Cross

Complainant's written $80,000.00 purchase offer and the Deposit to Block at Cross-Defendan

Cirgadyne for presentation to a seller of a License.

13. An actual controversy has arisen and now exists between Cross-Complainant an

Cross-Defendant Cirgadyne concerning their respective rights and duties under th

Acknowledgment in that Cross-Complainant asserts the Acknowledgment is unenforceable agains

Cross-Complainant because, for the reasons specified above, it lacks consideration, and/or becaus

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it was entered into by Cross-Complainant as a result of the 'wrongful and unlawful conduct agains

Cross-Complainant by Block and/or Menaster on behalf of Cross-Defendant Cirgadyne in th

form of breaches of the fiduciary duties of loyalty, honesty, fair dealing and full disclosure, b

intentional or negligent false misrepresentations, warranties and/or promises, and/or promise

made without any intent of being performed, and for the sole purpose of causing Cross

Complainant. to make the $80,000.00 purchase offer for a License through Cross-Defendan

Cirgadyne and remit possession and control of the Deposit to Cross-Defendant Cirgadyne for th

commercial and financial benefit and advantage of Cross-Defendant Cirgadyne. Cross-Defendan

Cirgadyne asserts the Acknowledgment is enforceable against Cross-Complainant because it i

supported by adequate consideration and because Oberman's signature on the Acknowledgmen

on behalf of Cross-Complainant was voluntarily affixed to the Acknowledgment, without an

breach of fiduciary duty, fraud, in the fOlm of intentional or negligence false misrepresentations,

warranties and promises, and/or without a promise made without the intent of performance, b

Cross-Defendant Cirgadyne through Block and/or Menaster, thereby making the Acknowledgmen

fully enforceable against Cross-Complainant in the amount of $8,000.00, plus Cross-Defendan

Cirgadyne's attorney's fees and court costs in the above-pending action, because Cross

Complainant purchased a License from "Mac Phearson-Sidel" for $85,000.00 within ninety (90

days of November IS, 2006, as specified in the Acknowledgment

14. Cross-Complainant desires a judicial determination of the respective rights an

duties of the parties under the Acknowledgment concerning which of the parties' interpretations 0

the Acknowledgment is correct. A judicial determination of the respective rights and duties of th

parties under the Acknowledgment is necessary and appropriate at this time under th

circumstances specified above so that the parties can determine their respective rights and duties t

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III

SECOND CAUSE OF ACTION FOR CONSTRUCTIVE FRAUD BY FINDER AGAINST

the other under the Acknowledgment. Because Cross-Defendant Cirgadyne, by way of th

Complaint, is attempting to enforce the Acknowledgment against Cross-Complainant fot

$8,000.00, plus attorney's fees and court costs, Cross-Defendant Cirgadyne will be unjustl

enriched and Cross-Complainant will be irreparably damaged unless the court renders

determination now of the respective rights and obligations of the parties under th

Acknowledgment. In the absence of such a determination Cross-Defendant Cirgadyne will gai

payment of $8,000.00 from Cross-Complainant, will request the payment of its attorney's fees an

court costs from Cross-Complainant, and Cross-Complainant will be forced to pay same, withou

Cross-Defendant Cirgadyne having the legal or equitable right, for the reasons specified above, t

enforce the Acknowledgment against Cross-Complainant and collect $8,000.00, its attorney's fee

and/or court costs from Cross-Complainant.

15. Cross-Complainant has incurred damages to date, and is continuing to incur suc

damages, in the form of attorney's fees and court costs, in having to defend against the legall

unjustified claims and causes of action specified above asserted against Cross-Complainant b

Cross-Defendant Cirgadyne in the Complaint for the purpose of enforcing the Acknowledgmen

against Cross-Complainant and obtaining the payment of $8,000.00 and Cross-Defendan

Cirgadyne's attorney's fees and court costs, and in having to file and prosecute this cross

complaint against Cross-Defendant Cirgadyne in order to prevent Cross-Defendant Cirgadyn

from unjustly enriching itself to the financial damage of Cross-Complainant, as specified herein.

The specific amount of Cross-Complainant's damages will be established according to proof at th

time of trial, but currently do not exceed the limited jurisdictional threshold of the superior court.

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CROSS-DEFENDANT CIRGADYNE AND ROES 1 THROUGH 30, INCLUSIVE

16. Cross-Complainant refers to and incorporates herein by reference paragraphs

through 15, inclusive, above.

17. At all times relevant hereto Oberman hired, retained, relied upon and placed trus

and confidence in Cross-Defendant Cirgadyne and/or Roes 1 through 30, inclusive, who at al

times relevant hereto held themselves out to Oberman as being experienced, qualified

knowledgeable, honest and trustworthy finders for persons and entities who want to sell 0

purchase a License. In the foregoing regard, and not by way of limitation or exclusion, Cross

Defendant Cirgadyne and/or Roes 1 through 30, inclusive, actually or impliedly represented to

Oberman Cross-Defendant Cirgadyne and/or Roes 1 through 30, inclusive, were experts in th

purchase, sale, listing, valuation and related contract and escrow transactions associated with th

sale, purchase and transfer of a License. At all times relevant hereto Cross-Complainant Cirgadyn

and/or Roes 1 through 30, inclusive, knew or in the exercise of reasonable care should hav

known, Oberman was not knowledgeable and experienced in the foregoing matters relating to th

purchase, sale and transfer of a License, and/or otherwise had limited knowledge and experienc

in such matters, and was relying on knowledge, experience, skill, training and honesty of Cross

Defendant Cirgadyne and/or of Roes 1 through 30, inclusive, in such matters when Oberma

retained Cross-Defendant Cirgadyne for the purpose of making the above-specified $80,000.0

purchase offer for a License, signed a written offer in such regard, and remitted the Deposit t

Block at Cross-Defendant Cirgadyne. Further and specifically with respect to Oberman'

authorization to Block to present the $80,000.00 purchase offer for a License, and with respect t

Oberman's remittance of the Deposit to Block at Cross-Defendant Cirgadyne, the foregoin

defendants knew, or through the exercise of reasonable care should have known, Oberman wa

relying on the above-stated representations, warranties and promises of Block that in the event th

foregoing purchase offer was rejected, Cross-Complainant would be entitled to the immediate an

unconditional return of the Deposit. At no time prior to November 15, 2006, as specified above.

did Cross-Defendant Cirgadyne, Block, Menaster and/or Roes 1 through 30, inclusive, ever advis

or warn Oberman the Deposit would only be refundable to Cross-Complainant if th

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Acknowledgment or a similar document was first signed by Cross-Complainant and returned t

2 Cross-Defendant Cirgadyne.

3 18. Cross-Defendant Cirgadyne and/or Roes I through 30, inclusive, knew or throug

4 the exercise of reasonable care should have known, that at all times relevant to this cross

5 complaint, Cross-Defendant Cirgadyne had no exclusive right to sell any License for which Cross

6 Complainant made a purchase offer, Cross-Defendant Cirgadyne would not earn or otherwise b

7 entitled to a finder's fee for the sale of a License to Cross-Complainant unless and until the selle

8 of a License accepted Cross-Complainant's purchase offer, and that absent such acceptance,

9 Cross-Complainant would be entitled to the immediate and unconditional return of the Deposit, a

10 represented, warranted and promised to Oberman by Cross-Defendant Cirgadyne through Block.

11 Further, Cross-Defendant Cirgadyne and/or Roes 1 through 30, inclusive, knew, or in the exercis

12 ofreasonable care should have known, that upon the rejection of Cross-Complainant's $80,000.0

13 purchase offer for a License, Cross-Complainant was entitled to the immediate return of th

14 Deposit without having to first sign the Acknowledgment or a similar document, and tha

15 requiring Oberman to sign the Acknowledgement as a condition to the return of the Deposit wa

16 unlawful, improper and breach of the fiduciary duty owed to Cross-Complainant by said cross

17 defendants to act in good faith, with honesty, to deal fairly with and to make full disclosures to,

18 Cross-Complainant and Oberman, and to place the financial and business interests of Cross

19 Complainant before those of Cross-Defendant Cirgadyne, to fully, truthfully and accuratel

20 disclose to Oberman that Cross-Complainant was not required to sign the Acknowledgment as

21 condition to receiving a refund of the Deposit, and that interposing the signing of th

22 Acknowledgment as a condition to the refund of the Deposit was done for the sale and selfis

23 purpose of advancing and promoting the financial and business interests of Cross-Defendan

24 Cirgadyne and/or of Roes 1 through 30, inclusive, before and to the damage and detriment of th

25 financial and business interests of Cross-Complainant, and/or for the purpose of obtaining

26 position of exclusivity with respect to the sale and purchase of a License involving Cross

27 Complainant that Cross-Defendant Cirgadyne did not otherwise enjoy. Cross-Defendan

28 Cirgadyne and/or Roes 1 through 30, inclusive, due to their fiduciary relationship with Cross

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Complainant were under a duty to disclose all of the foregoing matters to Oberman bu

2 intentionally and/or negligently failed to do so prior to the time Oberman signed and returned th

3 Acknowledgment to Block and/or Monaster at Cross-Defendant Cirgadyne.

4 19. The above-specified conduct by said cross-defendants constituted a breach of theit

5 fiduciary duty to Cross-Complainant under the above circumstances, which fiduciary duty wa

6 imposed on said defendants by virtue of their acting as finders for a License on behalf of Cross

7 Complainant, as Cross-Complaint's agent for the purpose of presenting its $80,000.00 purchas

8 offer for a License, and in assuming possession of and control over the Deposit for the purpose 0

9 securing the foregoing purchase offer and for no other purpose.

10 20. The foregoing breach of fiduciary duty by Cross-Defendant Cirgadyne and/or b

11 Roes 1 through 30, inclusive, was a substantial factor in causing Cross-Complainant to execute th

12 Acknowledgment and assume the duties and obligations specified therein, and in causing Cross

13 Complainant to take all other actions more specifically mentioned above in connection wit

14 making the $80,000.00 purchase offer for a License and in remitting the Deposit to Block a

15 Cross-Defendant Cirgadyne. Further, such breach of fiduciary duty was a substantial factor i

16 causing Cross-Complainant to suffer and incur the various financial injuries, damages and losse

17 mentioned above and to be more specifically established according to proof at the time of trial, bu

18 which damages do not cUlTently exceed the limited jurisdictional threshold of the superior court.

19 IV

20 THIRD CAUSE OF ACTION FOR FRAUD BASED ON INTENTIONAL

21 MISREPRESENTATION AND/OR CONCEALMENT OF MATERIAL FACTS AGAINST

22 CROSS-DEFENDANT CIRGADYNE AND ROES 1 THROUGH 30, INCLUSIVE

23 21. Cross-Complainant hereby refers to and incorporates herein by referenc

24 paragraphs 1 through 20, inclusive, above.

25 22. Cross-Complainant is informed and believes, and on such basis, alleges, all of th

26 actions or inactions of Cross-Defendant Cirgadyne and/or of Roes 1 through 30, inclusive.

27 specified above, were taken with the intention of falsely representing, warranting and promising to

28 Oberman the material facts that Cross-Defendant Cirgadyne would immediately an

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1 unconditionally refund the Deposit to Cross-Complainant in the event its $80,000.00 purchas

2 offer was not accepted, and Cross-Defendant wanted to gain possession and control of the Deposi

3 solely to secure Cross-Complainant's $80,000.00 purchase offer for a License. The foregoin

4 representations were in fact false. The truth was Cross-Defendant Cirgadyne and/or Roes 1

5 through 30, inclusive, never intended to immediately and unconditionally refund the Deposit t

6 Cross-Complainant if its $80,000.00 purchase offer for a License was not accepted and alway

7 intended to gain possession and control of the Deposit for the sole commercial and financia

8 benefit and advancement of Cross-Defendant Cirgadyne, including, but not limited to, obtainin

9 the exclusive right to sell a License for "MacPhearson-Sidel" that Cross-Defendant Cirgadyne di

10 not previously enjoy. Alternatively, Cross-Defendant Cirgadyne intentionally concealed fro

11 Oberman the material facts that Cross-Defendant Cirgadyne always intended to require Cross

12 Complainant to sign the Acknowledgment or a similar document as a condition to making a refun

13 of the Deposit to Cross-Complainant, and that Cross-Complainant was not legally required to sig

14 the Acknowledgment or a similar document as a condition to obtaining the return of the Deposi

15 from Cross-Defendant Cirgadyne. When Cross-Defendant Cirgadyne and/or Roes] through 30,

]6 inclusive, made the foregoing representations, warranties and promises of material facts they kne

]7 they were false, or had no reasonable ground for believing the representations, warranties an

18 promises were true. Alternatively, when Cross-Defendant Cirgadyne and/or Roes 1 through 30

19 inclusive, concealed the foregoing material facts they did so by telling Oberman the other above

20 stated material facts to mislead Oberman and Cross-Complainant and prevent them fro

21 discovering the above concealed facts.

22 23. Cross-Defendant Cirgadyne and/or Roes 1 through 30, inclusive, made the abov

23 representations, warranties and promises with the intent to defraud and induce Oberman to act a

24 specified above. At the time Oberman so acted he did not know the representations, warranties an

25 promises were false and believed they were true. Oberman reasonably and justifiably relied on th

26 truth of the above representations, warranties and promises of Cross-Defendant Cirgadyne and/o

27 Roes] through 30, inclusive, in making the $80,000.00 purchase offer for a license and rcmittin

28 to Block at Cross-Defendant Cirgadyne the Deposit as security for the foregoing offer.

]4


Alternatively, at the time Oberman acted as specified above, Oberman was unaware of th

2 concealed material facts specified above and would not have taken such actions if Oberman ha

3 know the true facts. At the time Oberman so acted Oberman did not know or have reason to kno

4 of the above-specified true intent and design of Cross-Defendant Cirgadyne and/or of Roes 1

5 through 30, inclusive, which were intentionally misrepresented and/or hidden and not disclosed b

6 said cross-defendants for the sale purpose of forcing Cross-Complainant to make its $80,000.0

7 purchase offer for a License and remit possession and control of the Deposit to Cross-Defendan

8 Cirgadyne for the latter's sale commercial and financial benefit and advantage, as herein specified.

9 24. As a proximate result of the intentional and wrongful misrepresentations

10 warranties and promises, and/or concealment of material facts, by Cross-Defendant Cirgadyn

I I and/or by Roes 1 through 30's, inclusive, as specified above, Cross-Complainant has bee

12 damaged in the amount and to the extent specified above, the specific amount which damage will

13 be established according to proof at the time of trial, but which damage does not currently excee

14 the limited jurisdictional threshold of the superior court.

15 25. Cross-complainant is informed and believes, and on such basis alleges, the above

16 specified conduct of Cross-Defendant Cirgadyne and/or of Roes 1 through 30, inclusive, was th

17 result of fraud, malice and/or oppression by said cross-defendants within the meaning and scope 0

18 Civil Code § 3294 entitling Cross-Complainant to the recovery of punitive and exemplar

19 damages from each and/or all of said cross-defendants in an amount according to proof at the tim

20 of trial, in addition to compensatory damages, for the purpose of punishing each and/or all of said

21 cross-defendants for their above-specified conduct against Cross-Complainant.

22 V

23 FOURTH CAUSE OF.ACTION FOR FRAUD BASED ON NEGLIGENT

24 MISREPRESENTATION OF MATERlAL FACTS AGAINST CROSS-DEFENDANT

25 CIRGADYNE AND ROES 1 THROUGH 30, INCLUSIVE

26 26. Cross-Complainant refers to and incorporates herein by reference paragraphs 1

27 through 24, inclusive, above.

28 27. Alternatively, Cross-Complainant asselis that all of the above-specified action

IS


1 and/or inactions of Cross-Defendant Cirgadyne and/or of Roes 1 through 30, inclusive, were don

2 at a time when none of said cross-defendants knew or had reason to know of the truth of th

3 representations, warranties and promises made to Oberman by Cross-Defendant Cirgadyne and/o

4 by Roes 1 through 30, inclusive. Notwithstanding, the foregoing cross-defendants were aware, 0

5 through the exercise of reasonable care and investigation should have been aware, that without

6 reasonable basis for doing so, said cross-defendants could not reasonably and accurately make th

7 subject representations, warranties and promises to Oberman herein alleged. At all times relevan

8 hereto said cross-defendants concealed from Oberman their foregoing lack of information an

9 basis, and their resulting inability, to accurately make the foregoing representations, wan-antie

10 and promises to Oberman.

11 28. Said cross-defendants' foregoing representations, warranties and promIses

12 made to Oberman by Cross-Defendant Cirgadyne and/or by Roes 1 through 30, inclusive, with th

13 intent to induce Oberman to take the actions on behalf of Cross-Complainant herein specified.

14 29. Oberman and Cross-Complainant, at the time the above cross-defendants made th

15 above-mentioned representations, warranties and promises, and at the time that Oberman took th

16 actions herein mentioned, were ignorant of the falsity of said representations, warranties

17 promises, and believed them to be true. In reliance on said representations, warranties an

18 promises Obennan was induced to and did perform the various actions more specificall

19 mentioned above in connection with the presentation of the $80,000.00 purchase offer for

20 License and the remittance of the Deposit to Cross-Defendant Cirgadyne at the direction, advic

21 and insistence of Block.

22 30. For all of the reasons more specifically mentioned above, the foregoing reliance b

23 Oberman and Cross-Complainant was reasonable and justified.

24 31. As a proximate result of the specified cross-defendants' above-mentione

25 fraudulent conduct Cross-Complainant suffered and incurred the economic injuries, damages an

26 losses more specifically mentioned above, the specific amount of which will be establishe

27 according to proof at the time of trial, but which currently are in an amount less than the limite

28 jurisdictional threshold of the superior CGUli.

]6


1 VI

2 FIFTH CAUSE OF ACTION FOR FRAUD BASED ON A PROMISE MADE WITHOUT

3 THE INTENT TO PERFORM AGAINST CROSS-DEFENDANTS CIRGADYNE AND

4 ROES 1 THROUGH 30, INCLUSIVE



7 33. The above-mentioned representations, warranties and promises made to Oberma

8 by Cross-Defendant Cirgadyne and/or by Roes 1 through 30, inclusive, in connection with Cross

9 Complainant's making of the $80,000.00 purchase offer for a License, the remittance of th

10 Deposit to Cross-Defendant Cirgadyne, and indicating to Oberman the Deposit would be fully an

II unconditionally refundable to Cross-Complainant if the foregoing purchase offer was no

12 accepted, were made by said cross-defendants without any intention of performing sai

13 representations, warranties and promises.

14 34. Said representations, warranties and promises were made by said cross-defendant

15 with the intent to induce Cross-Complainant to rely thereon and to take the actions mor

16 specifically mentioned above. At the time the subject representation, warranties and promises wer

17 made, and at the time Cross-Complainant took the foregoing actions in reliance thereon, Oberma

18 was ignorant of the cross-defendants' undisclosed intention not to perform said representations

19 warranties and promises. For all of the reasons previously mentioned above, Oberman reasonabl

20 and justifiably relied on said representations, warranties and promises, and based on such relianc

21 took and performed the various actions more specifically mentioned above in connection with th

22 making of its $80,000.00 purchase offer for a License and its remitting of the Deposit to Block a

23 Cross-Defendant Cirgadyne.

M VII

25 SIXTH CAUSE OF ACTION FOR RESCISSION AND RESTITUTION AGAINST

26 CROSS-DEFENDANT CIRGADYNE AND ROES 1 THROUGH 50, INCLUSIVE



17


1 36. Cross-Complainant, by· servIce of' this cross-complaint on Cross

2 Defendant Cirgadyne and/or on Roes 1 through 30,' inclusive, hereby offers to, and does, retur

3 and/or tender to said cross-defendants everything of value, if anything, Cross-Complainant rna

4 have received from said cross-defendants under or in connection with the Acknowledgment

5 and/or hereby asserts Cross-Complainant did not receive anything of value from said cross

6 defendants in connection with the execution and delivery of the Acknowledgment and/or i

7 connection with any services Cross-Defendant Cirgadyne and/or Roes 1 through 30, inclusive,

8 may have rendered to Cross-Complainant as a finder for a License. In the foregoing regard, Cross

9 Complainant is informed and believes, and on such basis alleges, for all of the reasons specifie

10 above, when said cross-defendants obtained Cross-Complainant's promise under th

11 Acknowledgment to pay to Cross-Defendant Cirgadyne the sum of $8,000.00, plus attorney's fee

12 and court costs, if Cross-Complainant purchased a License from "Mac Phearson-Sidel" withi

13 ninety (90) days of November 15, 2006, said promise lacked, and still lacks, adequate an

14 sufficient consideration. Cross-Complainant further intends for service of this cross-complain

15 upon Cross-Defendant Cirgadyne and Roes 1 through 30, inclusive, to serve as notice to sai

16 cross-defendants of Cross-Complainant's intent to rescind the Acknowledgment and to obtain th

17 recovery from said cross-defendants of all sums and damages incurred by Cross-Complainant as

18 proximate result of said cross-defendants' above-specified unlawful and wrongful conduct i

19 connection with the presentation and execution of the Acknowledgment, which sums and damage

20 will be established according to proof at the time of trial, but which do not currently exceed th

21 limited jurisdictional threshold of the superior court.

22 37. Notwithstanding the foregoing, Cross-Complainant stands ready to return to Cross

23 Defendant Cirgadyne and/or to Roes 1 through 30, inclusive, and Cross-Complainant hereb

24 tenders, any and all consideration, if any, found by this honorable court to have been received b

25 Cross-Complainant from any and/or all of said cross-defendants and found be due and owing t

26 said cross-defendants, and/or to any of them, by Cross-Complainant, provided that Cross

27 Defendant Cirgadyne and/or or Roes 1 through 30, inclusive, if found by the court to be liable t

28 Cross-Complainant, arelis ordered: (i) to pay to Cross-Complainant the economic injuries,

18


1 damages and losses incurred by Cross-Complainant mote specifically mentioned above as

2 proximate result of the actions of Cross-Defendant Cirgadyne and/or of Roes 1 through 30,

3 inclusive; (ii) to indemnify Cross-Complainant and Oberman against any and all further and othe

4 liability, cost and expense, whatsoever, under the Acknowledgment; (iii) to indemnify and defen

5 Cross-Complainant and Oberman from and against any and all liability to Block and/or Menaste

6 under the Acknowledgment or otherwise in connection with this action and/or the purchase of

7 License for the Restaurant; and (iv) to pay to Cross-Complainant the full amount of the attorney'

8 fees and court costs paid and incurred by Cross-Complainant in this litigation and as a proximat

9 result of the above-stated actions of Cross-Defendant Cirgadyne and/or of Roes 1 through 30.

10 inclusive; all in an amount to be more specifically established according to proof at the time 0

11 trial, but in no event in an amount in excess of the limited jurisdictional threshold of the superio

12 court.

13 38. Cross-Complainant will suffer irreparable and substantial harm if th

14 Acknowledgment is not rescinded and Cross-Complainant is not given the monetary and othe

15 legal and/or equitable relief herein requested, with interest on said monetary relief from Novembet

16 15, 2006 at the rate of ten percent (10%) per annum to the date of judgment, because (i) Cross

17 Complainant will have assumed the obligations under the Acknowledgment to pay Cross

18 Defendant Cirgadyne the sum of $8,000.00, plus attorney's fees and court costs, for the purchas

19 by Cross-Complainant of a License from "MacPhearson-Sidel" within ninety (90) days 0

20 November 15, 2006, when such assumption of obligation was obtained as the result of a breach 0

21 fiduciary duty, intentional or negligent fraud, and/or without support by adequate consideration

22 which assumption of obligation would not have occurred had Cross-Defendant Cirgadyne and/o

23 Roes 1 through 30, inclusive, not engaged in the conduct more specifically mentioned above an

24 caused Cross-Complainant to enter into the Acknowledgment; and (ii) if Cross-Complainan

25 Cirgadyne and/or Roes 1 through 30, inclusive, are not ordered to indemnify Cross-Complainan

26 and Oberman under and in connection with the Acknowledgment, Cross-Complainant an

27 Oberman will continue to incur financial and legal liability and responsibility thereunder to Cross

28 Defendant Cirgadyne and/or to Roes 1 through 30, inclusive, which financial and legal liabilit

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would not have ansen or existed if Cf'Oss-Defendant Cirgadyne and/or Roes 1 through 30,

inclusive, had not engaged in the conduct more specifically mentioned above and caused Oberma

to make the $80,000.00 purchase offer for a License through Cross-Defendant Cirgadyne, to remi

possession and control of the Deposit to Block at Cross-Defendant Cirgadyne, and to sign an

deliver the Acknowledgment to Cross-Defendant Cirgadyne as a condition to the refund of th

Deposit to Cross-Complainant.

VIII

PRAYER FOR RELIEF

WHEREFORE, Cross-Complainant prays judgment against Cross-Defendant Cirgadyn

and/or against Roes 1 through 30, inclusive, as follows:

A. First Cause of Action:

1. For a declaration of the rights and obligations of Cross-Complainant and 0

Cross-Defendant Cirgadyne under the Acknowledgment.

2. For compensatory damages in an amount not to exceed the limited

jurisdictional threshold of the superior court and in an amount to be established according to proo

at the time of trial.

3. For interest on the foregoing sums at the rate of ten percent (10%) pe

annum from November 15, 2006 to the date of judgment.

B. Second Cause of Action:

1. For compensatory damages in an amount not to exceed the limite



2. For interest on the foregoing sums at the rate of ten percent (10%) pel

annum from November 15,2006 to the date of judgment.

C. Third Cause of Action:

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1. For compensatory' damages in an' amount not to exceed the limited





3. For exemplary and punitive damages under Civil Code § 3294 in an amoun

to be established according to proof at the time of trial.

D. Fourth Cause of Action:

I. For compensatory damages in an amount not to exceed the limite




annum from November 15,2006 to the date ofjudgment.

E. Fifth Cause of Action:

1. For compensatory damages in an amount not to exceed the limite


at the time oftrial.



3. For exemplary and punitive damages under Civil Code § 3294 in an amoun

to be established according to proof at the time of trial.

F. Sixth Cause of Action:

1. For rescission of the Acknowledgment.

21


• •2. For an order of the court ordering Cross-Defendant Cirgadyne and/or Roe

through 30, inclusive, to restore, return and refund to Cross-Complainant all things of valu

Complainant or Oberman under or in connection with the Acknowledgment.

given to Cross-Defendant Cirgadyne and/or to Roes I through 30, inclusive, by Cross

arising under or concerning the Acknowledgment.

For an order of the court ordering Cross-Defendant Cirgadyne and/or Roe

For interest on the foregoing sums at the rate of ten percent (10%) pe

3.

4.

I through 30, inclusive, to indemnify Cross-Complainant and Oberman from and against any all

cost, liability and expense, whatsoever, to Roes I through 30, inclusive, Block and/or Menaste

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12 annum from November 15,2006 to the date of judgment.

//

applicable statute, including, but not limited to under Civil Code § 1717.

Cross-Complainant hereby remits to the limited jurisdictional threshold of the superio

All Causes of Action:

IV

Lawrence M. Adelman, Attorney for Defendantand Cross-Complainant Wiseman Park, LLC, aCalifornia limited liability company, doingbusiness as Kung Pao Kitty

REMITTITUR

For Cross-Complainant's reasonable attorney's fees under contract 0

For such other and further relief as the court deems just and proper.

u-For Cross-Complainant's court costs.

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court all sums recovered by Cross-Complainant in excess of such limited jurisdictional threshold.

L wrence . Adelman, Attorney for Defendantand Cross-Complainant Wiseman Park, LLC, aCalifornia limited liability company, doingbusiness as Kung Pao Kitty

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CROSS-COMI>LAINT BY DEFENDANT WISEMAN PARK, LLC

•

I am a citizen of the United States and a resident of Los Angeles County, California. I an

I declare under penalty of perjury under the laws of the State of California that th

Lawrence M. Adelman

foregoing is true and correct.

Executed on this~day of May, 2007, at Los Angeles, California.

~~

Canoga Avenue, Suite 400, Woodland Hills, California 91367-6554.

On May~, 2007, I served the within document(s) entitled CROSS-COMPLAINT B

DEFENDANT WISEMAN PARK, LLC, ETC., AGAINST PLAINTIFF CIRGADYNE,

I am readily familiar with the practice of this office for collecting and

correspondence for mailing. Under that practice, the above-described document(s) would b

deposited with the U.S. Postal Service on the same day as the document(s) were enclosed in thei

envelope(s). I am aware that on motion of the party served, service is presumed invalid if th

postal collection date or postage meter date is more than one day after the date of mailing set f01t

in this declaration.

INCORPORATED, ETC., on the interested parties in this action, by placing a true copy thereo

enclosed in a sealed envelope, with postage thereon fully prepaid, addressed as follows:

Steven H. Gardner, Esq.Law Offices of Steven H. Gardner9595 Wilshire Boulevard, Suite 610Beverly Hills, CA 90212

PROOF OF SERVICE BY MAIL (CCP §§ 405.22, 405.23, 1013 (a), 2015.5)

STATE OF CALIFORNIA )

COUNTY OF LOS ANGELES)

over the age of eighteen years and I am not a party to this action. My business address is 585

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cirgadyne incorporated v wiseman park llc - cross complaint

Documents

law offices of lawrence

crosscomplainant wiseman

canoga avenue

woodland hills

nuslv1riut court

kung pao kitty r