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LLC v. Calamos

United States District Court, C.D. California

January 5, 2015

Palmdale 3D, LLC
v.
John P Calamos, Sr., et al.

CIVIL MINUTES - GENERAL

MICHAEL W. FITZGERALD, District Judge.

Proceedings (In Chambers): ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS

This matter is before the Court on four related motions, two filed by Defendants John P. Calamos, Sr. and Calim Private Equity LLC ("CALIM"), and two filed by Patrick Imeson. (Docket Nos. 26-29). The Calamos Defendants and Imeson both filed a motion to strike and a motion to dismiss. Plaintiff Palmdale 3D, LLC ("Palmdale") filed a Consolidated Opposition to Defendants' Motion To Strike "SLAPP" Action Under Code of Civil Procedure §425.16; and Dismiss Second Amended Complaint Pursuant to Rule 12(B)(6) (the "Opposition") on December 15, 2014. (Docket No. 31). Defendants CALIM and Calamos filed a Reply Memorandum on December 22, 2014. (Docket No. 36). Imeson filed his own Reply Memorandum on December 22, 2014. (Docket No. 37).

The Court held a hearing on the matter on January 5, 2015. For the reasons set forth below, the Court GRANTS in part and DENIES in part the Motions. The Court GRANTS Defendants' Motions to Dismiss as to Palmdale's first claim for fraud and Palmdale's claims for conversion, common counts, and alter ego liability. The Court DENIES the Anti-SLAAP Motions. The Court DENIES Defendants' Motions as to Palmdale's fraudulent conveyance claim.

Background

This action arises out of a dispute over a guaranty for a loan issued in 2007 and Palmdale's attempts to collect on that loan.

In 2007, Black Diamond Financing, LLC, entered into a loan agreement with Apex Investment Fund, Ltd. Global VR was also a party to the loan agreement. The loan agreement was guaranteed by Defendant CALIM as well as by Calim Bridge Partners I, LLC, Calim Bridge Partners II, LLC, Calim Venture Partners I, LLC, and Calim Venture Partners II, LLC. Apex then assigned the loan agreement to Palmdale.

On April 1, 2009, Palmdale filed an action in Los Angeles Superior Court, Case No. SC102413 (the "State Court Action"), against the aforementioned entities to collect on the loan agreement. CALIM, however, was dismissed from the action when it signed a new guaranty (the "New Guaranty"), executed on June 26, 2009. (Second Amended Complaint, Ex. A, Docket No. 20-3). A Stipulation for Entry of Judgment upon Default was executed and filed for the remaining defendants on July 10, 2009 (the "Stipulation"); the Stipulation provided for entry of judgment if the non-CALIM defendants defaulted on their obligation to pay Palmdale $1, 331, 936 plus interest as agreed to in the Stipulation. (Second Amended Complaint, Ex. B, Docket 20-2).

The New Guaranty provided that CALIM would be responsible for the underlying debt and judgment in the State Court Action if the following conditions occurred:

a) An event of default under the Agreement occurs... and the Default continues and remains unpaid for a period of fourteen calendar days after written notice by [Palmdale]...
b) The Default continues and remains uncured for an additional period of seven calendar days after written notice by [Palmdale] to CALIM... and
c) [Palmdale] files the Stipulation for Entry of Judgment against the Obligors and undertakes reasonable collection efforts against the Obligors, including, without limitation, obtaining court orders relating to the collection thereof, prior to seeking to enforce this Guaranty.

(Guaranty ¶ 14).

The defendants (other than CALIM) in the State Court Action defaulted under the Stipulation; judgment was therefore entered against them on February 2, 2010. Palmdale's efforts to enforce the judgment proved futile and Palmdale obtained an uncontested judgment against CALIM pursuant to the New Guaranty on November 25, 2011, in the amount of $1, 692, 581.54 (the "CALIM Judgment"). (SAC ¶ 9; Ex. C, (Docket No. 20-3)). Defendants do not dispute these facts.

In its SAC, Palmdale alleges that Imeson, as co-owner with Calamos of CALIM, made oral promises that CALIM would pay what was owed in full both before and after the entry of the CALIM Judgment. (SAC ¶ 9). As alleged by Palmdale, Calamos is the sole voting member of CALIM. (SAC ¶ 11). Calamos installed Ajax, LLC, an entity he owns and which is managed by a long-time employee of his, as managing member of CALIM. (SAC ¶ 10).

Palmdale further alleges that CALIM has never been able to satisfy the original guaranty, the New Guaranty or any portion of the judgment, but that this information was deliberately and fraudulently kept from Palmdale. Palmdale has learnt that CALIM's only source of income was profits derived from Global VR, one of the parties to the loan agreement and since 2007, Global VR has failed to make any profit and has never been able to independently satisfy the State Court Action judgment or provide funds to CALIM to satisfy the New Guaranty. Palmdale, also alleges, however, that between January 2011 and December 2013, CALIM distributed to Imeson and Calamos a total of $1, 442, 486. (SAC ¶ 11).

Palmdale filed the present action on September 26, 2014, and the operative complaint, the SAC, on October 28, 2014. In the SAC, Palmdale asserts five claims for relief: 1) fraud; 2) fraudulent conveyance; 3) conversion and construction trust; 4) Common Counts (Account Stated and Money Had and Received); and 5) alter ego or amendment and enforcement of judgment against Calamos and Imeson.

The essence of Palmdale's suit is that Calamos and Imeson misled Palmdale as to the financial position of both CALIM, as guarantor, and the defendants subject to the Stipulation. Specifically, Calamos and Imeson misled Palmdale as to Global VR and the other State Court Action Defendants' ability to satisfy the judgment as well as CALIM's ability to satisfy the terms of the New Guaranty; Palmdale was misled when Calamos promised to satisfy the New Guarantee should CALIM not be able to do so; and having made these misrepresentation Calamos and Imeson delayed collection on the Loan Agreement and looted CALIM of all its assets, depriving Palmdale of any remedy.

Calamos and CALIM, together, and Imeson individually, filed motions to dismiss for failure to state a claim under Rule 12(b)(6) as well as anti-SLAPP motions under California Code of Civil Procedure section 425.16.

Discussion

Fraud Claim

In their motions Defendants argue that the Court should strike the fraud claim under California's anti-SLAPP statute and that Palmdale fails to adequately state a fraud claim. In light of the serious deficiencies in Palmdale's pleadings, the Court determines that it is most appropriate to DISMISS without leave to amend Palmdale's fraud claim. Therefore, it does not address the propriety of using California's anti-SLAPP procedure which requires a more involved two-step analysis addressing whether conduct falls within the statute's scope and whether there is a likelihood of success. Hilton v. Hallmark Cards, 599 ...


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