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This case was last updated from Los Angeles County Superior Courts on 01/20/2021 at 14:46:13 (UTC).

ADKERNEL LLC VS KUBIENT, INC.

Case Summary

On 11/25/2019 ADKERNEL LLC filed a Contract - Other Contract lawsuit against KUBIENT, INC. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0891

  • Filing Date:

    11/25/2019

  • Case Status:

    Other

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

ADKERNEL LLC

Defendant

KUBIENT INC.

Attorney/Law Firm Details

Plaintiff Attorney

DILLON TIMOTHY

Defendant Attorneys

MCOSKER JOHN E

GINTER BRIAN S.

 

Court Documents

Declaration (name extension) - Declaration Declaration of Brian S. Ginter

6/11/2020: Declaration (name extension) - Declaration Declaration of Brian S. Ginter

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

6/11/2020: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Memorandum of Points & Authorities - Memorandum of Points & Authorities

7/14/2020: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Motion for Sanctions - Motion for Sanctions

7/30/2020: Motion for Sanctions - Motion for Sanctions

Memorandum of Points & Authorities - Memorandum of Points & Authorities

7/30/2020: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Minute Order - Minute Order (Court Order)

8/25/2020: Minute Order - Minute Order (Court Order)

Certificate of Mailing for - Certificate of Mailing for (Court Order) of 08/25/2020

8/25/2020: Certificate of Mailing for - Certificate of Mailing for (Court Order) of 08/25/2020

Notice (name extension) - Notice OF HEARING ON DEFENDANTS MOTION FOR RELIEF TO HEAR DEFENDANTS MOTION TO DISMISS

8/26/2020: Notice (name extension) - Notice OF HEARING ON DEFENDANTS MOTION FOR RELIEF TO HEAR DEFENDANTS MOTION TO DISMISS

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

9/22/2020: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Opposition (name extension) - Opposition To Defendant's Motion to Grant Relief to Hear Motion to Dismiss and Motion to Dismiss

9/22/2020: Opposition (name extension) - Opposition To Defendant's Motion to Grant Relief to Hear Motion to Dismiss and Motion to Dismiss

Declaration (name extension) - Declaration Of T. Dillon In Support of Opposition to Motion to Dismiss

9/22/2020: Declaration (name extension) - Declaration Of T. Dillon In Support of Opposition to Motion to Dismiss

Reply (name extension) - Reply IN SUPPORT OF ITS MOTION FOR RELIEF TO HEAR ITS MOTION TO DISMISS

9/28/2020: Reply (name extension) - Reply IN SUPPORT OF ITS MOTION FOR RELIEF TO HEAR ITS MOTION TO DISMISS

Reply (name extension) - Reply IN SUPPORT OF ITS MOTION TO DISMISS BASED ON CONTRACTUAL FORUM SELECTION CLAUSE

9/28/2020: Reply (name extension) - Reply IN SUPPORT OF ITS MOTION TO DISMISS BASED ON CONTRACTUAL FORUM SELECTION CLAUSE

Minute Order - Minute Order (Hearing on Motion - Other to Grant Relief to Hear Motion to ...)

10/19/2020: Minute Order - Minute Order (Hearing on Motion - Other to Grant Relief to Hear Motion to ...)

Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion - Other to Grant Relief to Hear Motion to ...) of 10/19/2020

10/19/2020: Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion - Other to Grant Relief to Hear Motion to ...) of 10/19/2020

Request for Dismissal - Request for Dismissal

11/30/2020: Request for Dismissal - Request for Dismissal

Summons - Summons on Complaint

11/25/2019: Summons - Summons on Complaint

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

11/25/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

27 More Documents Available

 

Docket Entries

  • 12/04/2020
  • DocketHearing on Motion for Sanctions scheduled for 01/19/2021 at 10:00 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 12/04/2020

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  • 12/04/2020
  • DocketNon-Jury Trial scheduled for 05/24/2021 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 12/04/2020

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  • 12/04/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 11/28/2022 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 12/04/2020

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  • 11/30/2020
  • DocketOn the Complaint filed by AdKernel LLC on 11/25/2019, entered Request for Dismissal with prejudice filed by AdKernel LLC as to the entire action

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  • 11/30/2020
  • DocketAddress for Timothy Dillon (Attorney) null

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  • 10/19/2020
  • DocketMinute Order (Hearing on Motion - Other to Grant Relief to Hear Motion to ...)

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  • 10/19/2020
  • DocketCertificate of Mailing for (Hearing on Motion - Other to Grant Relief to Hear Motion to ...) of 10/19/2020; Filed by: Clerk

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  • 10/19/2020
  • DocketHearing on Motion - Other to Grant Relief to Hear Motion to Dismiss scheduled for 10/19/2020 at 10:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 10/19/2020; Result Type to Held - Motion Denied

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  • 10/19/2020
  • DocketHearing on Motion to Dismiss scheduled for 10/19/2020 at 10:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 10/19/2020; Result Type to Held - Motion Denied

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  • 10/02/2020
  • DocketObjection to Defendant's Reply Brief; Filed by: AdKernel LLC (Plaintiff)

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35 More Docket Entries
  • 05/28/2020
  • DocketDeclaration Declaration of Brian S. Ginter; Filed by: Kubient, Inc. (Defendant)

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  • 01/17/2020
  • DocketAnswer; Filed by: Kubient, Inc. (Defendant); As to: AdKernel LLC (Plaintiff)

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  • 11/26/2019
  • DocketNon-Jury Trial scheduled for 05/24/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 11/26/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 11/28/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 11/26/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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  • 11/25/2019
  • DocketComplaint; Filed by: AdKernel LLC (Plaintiff); As to: Kubient, Inc. (Defendant)

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  • 11/25/2019
  • DocketSummons on Complaint; Issued and Filed by: AdKernel LLC (Plaintiff); As to: Kubient, Inc. (Defendant)

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  • 11/25/2019
  • DocketCivil Case Cover Sheet; Filed by: AdKernel LLC (Plaintiff); As to: Kubient, Inc. (Defendant)

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  • 11/25/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 11/25/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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Tentative Rulings

Case Number: 19STLC10891    Hearing Date: October 19, 2020    Dept: 25

CASE NAME: Adkernel, LLC v. Kubient, Inc. COMPL. FILED: 11-25-19

CASE NUMBER: 19STLC10891 DISC. C/O: 04-24-21

NOTICE: OK DISC. MOT. C/O: 05-09-21

TRIAL DATE: 05-24-21

PROCEEDINGS: (1) MOTION TO DISMISS BASED ON CONTRACTUAL FORUM SELECTION CLAUSE

(2) MOTION TO GRANT RELIEF TO HEAR DEFENDANT’S MOTION TO DISMISS

MOVING PARTY: Defendant Kubient, Inc.

RESP. PARTY: Plaintiff AdKernel, LLC

MOTION TO DISMISS

(CCP § 430.10)

TENTATIVE RULING:

Defendant’s motions to dismiss the action are DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

Motion to Dismiss

OPPOSITION: Filed on September 22, 2020 [ ] Late [ ] None

REPLY: Filed on September 28, 2020 [ ] Late [ ] None

Motion to Grant Relief to Hear Motion to Dismiss

OPPOSITION: Filed on September 22, 2020 [ ] Late [ ] None

REPLY: Filed on September 28, 2020 [ ] Late [ ] None

ANALYSIS:

  1. Background

On May 24, 2020, Plaintiff AdKernel, LLC (“Plaintiff”) filed an action for breach of contract and common counts against Kubient, Inc. (“Defendant”). Defendant filed an Answer on January 17, 2020.

On May 28, 2020, Defendant filed the instant Motion to Dismiss Based on Contractual Forum Selection Clause. On June 11, 2020, Defendant filed a Motion to Grant Relief to Hear Defendant’s Motion to Dismiss (collectively, the “Motions”). Plaintiff filed an Opposition to each Motion and Objection to Evidence on September 22, 2020. Defendant filed Replies on September 28, 2020. On October 2, 2020, Plaintiff filed an Objection to New Evidence, Argument, and/or Authorities Presented in Defendant’s Reply briefs.

  1. Plaintiff’s Evidentiary Objections

Plaintiff submits three objections to Defendant’s evidence. Plaintiff’s objections are OVERRULED.

  1. Legal Standard

Code of Civil Procedure section 410.30 states, in pertinent part:

“When a court upon motion of a party or its own motion finds that in the interest of substantial justice, an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.”

Section 410.30 is a “codification of the doctrine of forum non conveniens [citation], but the principles governing enforcement of a forum selection clause are not the same as those applicable to motions based on forum non conveniens.” (Trident Labs, Inc. v. Merril Lynch Commercial Finance Corp. (2011) 200 Cal.App.4th 147, 153.) “In California, ‘forum selection clauses are valid and may be given effect, in the Court’s discretion and in the absence of showing that the enforcement of such clause would be unreasonable.” (Id.)

“Although California has a policy of favoring access to its courts by its resident plaintiffs, our Supreme Court has concluded that policy is satisfied where a plaintiff freely and voluntarily negotiates his or her right to a California forum. [Citations.]” (CQL Original Products, Inc. v. National Hockey League Players’ Assn. (1995) 39 Cal.App.4th 1347, 1353.)

  1. Legal Standard Discussion

As an initial matter, the Court notes that Defendant’s separate Motions appear to be two parts of one whole. Thus, the Court considers them as such. Defendant seeks to dismiss this action based on a contractual forum selection clause.

  1. Timeliness of Motion

First, Plaintiff argues that Defendant’s Motions are untimely. Section 410.30 does not include a time limit and thus, “a reasonableness standard is necessarily inferred.” (Trident Labs, Inc. v. Merril Lynch Commercial Finance Corp. (2011) 200 Cal.App.4th 147, 155.) In Trident Labs, the Court declined to enforce a forum selection clause. The Court concluded that granting a defendant’s motion to stay or dismiss based on a forum selection clause would be unreasonable as a matter of law because the defendant extensively litigated in California by filing a cross-complaint, conducting extensive discovery, and filing motions seeking relief from the Court. (Id. at pp. 155, 157.) In addition, the defendant did not provide any justification for waiting 19 months before filing the motion to stay or dismiss. (Id.)

Here, the Complaint was filed in November of 2019 and these Motions were filed six months later, in May 2020. The parties did not heavily engage in law and motion practice during that time. In addition, only Plaintiff, the non-moving party, has propounded written discovery on Defendant. (Oppo., Dillon Decl., ¶ 6.) Furthermore, Defendant states that these Motions were not filed earlier because the parties were engaged in settlement talks through April 2020 and because, around the same time, Defendant located a second agreement, the Master Services Agreement (the “MSA”) it believes governs the parties’ relationship. (Reply for Mot. to Dismiss, p. 5:3-19.)

Based on the above, the Court finds that the Motions were brought within a reasonable time.

  1. Waiver of Improper Forum Objection

Plaintiff also argues that because Defendant’s answer fails to list improper forum or jurisdiction as one of its affirmative defenses, it has forfeited its right to seek a dismissal on the basis of improper forum. (Oppo., p. 2:6-9.)

“An answer may contain a ‘general…denial of the material allegations of the complaint controverted by the defendant. [Citations]. The effect of the general denial is to ‘put in issue the material allegations of the complaint.’ [Citation.]” (Advantec Group, Inc. v. Edwin’s Plumbing Co., (2007) 153 Cal.App.4th 621, 627.) “A material allegation in a pleading is one essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to the claim or defense.” (Code Civ. Proc., § 431.10, subd. (a).) However, where “matters are not responsive to the essential allegations of the complaint, they must be raised in the answer as ‘new matter,’” in other words, as an affirmative defense. (Department of Finance v. City of Merced (2019) 33 Cal.App.5th 286, 294 (citing Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812-13.)) (Italics added.) “‘A party who fails to plead affirmative defenses waives them.’” (Id.)

Here, Defendant’s Answer includes a general denial. (Answer, ¶ 1.) As noted above, Plaintiff alleges breach of contract and common counts causes of action. The general denial serves to controvert the material allegations of a breach of contract and common counts cause of action. (Advantec Group, Inc. v. Edwin’s Plumbing Co., supra, 153 Cal.App.4th at p. 627.) The elements of a breach of contract cause of action are “(1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.) In addition, “‘[a] common count is not a specific cause of action . . .; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness . . . .’ [Citation.]” (Professional Collection Consultants v. Lujan (2018) 23 Cal.App.5th 685, 690.)

Proper forum or the existence of a contractual forum selection clause are not material allegations to either of Plaintiff’s claims. Thus, Defendant should have included an affirmative defense based on improper forum in its Answer. Because it did not do so, it has waived the defense and cannot assert it now.

Accordingly, the Motions are DENIED.

  1. Conclusion & Order

For the foregoing reasons, Defendant’s motions to dismiss the action are DENIED.

Moving party is ordered to give notice.

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