This case was last updated from Los Angeles County Superior Courts on 01/11/2023 at 04:16:10 (UTC).

ICURE PHARMACEUTICAL, INC. VS S RAM AND M RAM RESOURCES BERHAD

Case Summary

On 05/12/2022 ICURE PHARMACEUTICAL, INC filed a Property - Other Property Fraud lawsuit against S RAM AND M RAM RESOURCES BERHAD. This case was filed in Los Angeles County Superior Courts, Compton Courthouse located in Los Angeles, California. The Judges overseeing this case are THOMAS D. LONG and MICHAEL SHULTZ. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0130

  • Filing Date:

    05/12/2022

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Property Fraud

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

THOMAS D. LONG

MICHAEL SHULTZ

 

Party Details

Plaintiff

ICURE PHARMACEUTICAL INC.

Defendants

S RAM AND M RAM RESOURCES BERHAD

SRAM & MRAM GROUP

SRAM AND MRAM TECHNOLOGIES & RESOURCES INC.

TG MEDICAL USA INC.

Attorney/Law Firm Details

Plaintiff Attorneys

KIM JINHEE

YOO TIMOTHY BAHK

Defendant Attorney

ROSE BRADLEY MICHAEL

 

Court Documents

Minute Order - MINUTE ORDER (HEARING ON MOTION TO BE RELIEVED AS COUNSEL; HEARING ON MOTIO...)

1/5/2023: Minute Order - MINUTE ORDER (HEARING ON MOTION TO BE RELIEVED AS COUNSEL; HEARING ON MOTIO...)

Proof of Service (not Summons and Complaint)

12/6/2022: Proof of Service (not Summons and Complaint)

Declaration - DECLARATION DECLARATION IN SUPPORT OF ATTORNEYS MOTION TO BE RELIEVED AS COUNSEL

12/6/2022: Declaration - DECLARATION DECLARATION IN SUPPORT OF ATTORNEYS MOTION TO BE RELIEVED AS COUNSEL

Motion to Be Relieved as Counsel

12/6/2022: Motion to Be Relieved as Counsel

Motion to Be Relieved as Counsel

12/6/2022: Motion to Be Relieved as Counsel

Declaration - DECLARATION DECLARATION IN SUPPORT OF ATTORNEYS MOTION TO BE RELIEVED AS COUNSEL

12/6/2022: Declaration - DECLARATION DECLARATION IN SUPPORT OF ATTORNEYS MOTION TO BE RELIEVED AS COUNSEL

Proof of Service (not Summons and Complaint)

12/6/2022: Proof of Service (not Summons and Complaint)

RETURNED MAIL

11/28/2022: RETURNED MAIL

RETURNED MAIL

11/28/2022: RETURNED MAIL

RETURNED MAIL

10/19/2022: RETURNED MAIL

Correspondence - ORDER REGARDING THIRD PARTY DEPOSITIONS OF IVEK RODRIGO AND TENNYSON FERNANDO

10/17/2022: Correspondence - ORDER REGARDING THIRD PARTY DEPOSITIONS OF IVEK RODRIGO AND TENNYSON FERNANDO

Stipulation and Order - STIPULATION AND ORDER STAY

10/14/2022: Stipulation and Order - STIPULATION AND ORDER STAY

Proof of Service (not Summons and Complaint)

10/11/2022: Proof of Service (not Summons and Complaint)

Proof of Service (not Summons and Complaint)

9/29/2022: Proof of Service (not Summons and Complaint)

Proof of Service (not Summons and Complaint)

9/29/2022: Proof of Service (not Summons and Complaint)

Request for Dismissal

9/29/2022: Request for Dismissal

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW: CASE MANAGEMENT CONFERENCE/ ORDER...) OF 09/28/2022

9/28/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW: CASE MANAGEMENT CONFERENCE/ ORDER...) OF 09/28/2022

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW: CASE MANAGEMENT CONFERENCE/ ORDER...)

9/28/2022: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW: CASE MANAGEMENT CONFERENCE/ ORDER...)

105 More Documents Available

 

Docket Entries

  • 03/30/2023
  • Hearing03/30/2023 at 08:30 AM in Department A at 200 West Compton Blvd., Compton, CA 90220; Hearing - Other Joint Status Report Regarding Arbitration

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  • 01/05/2023
  • DocketUpdated -- Motion to Be Relieved as Counsel: Filed By: S RAM and M RAM Resources Berhad (Defendant); Result: Granted ; Result Date: 01/05/2023

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  • 01/05/2023
  • DocketMinute Order (Hearing on Motion to be Relieved as Counsel; Hearing on Motio...)

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  • 01/05/2023
  • DocketHearing on Motion to be Relieved as Counsel scheduled for 01/05/2023 at 08:30 AM in Compton Courthouse at Department A updated: Result Date to 01/05/2023; Result Type to Held

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  • 01/05/2023
  • DocketHearing on Motion to be Relieved as Counsel scheduled for 01/05/2023 at 08:30 AM in Compton Courthouse at Department A updated: Result Date to 01/05/2023; Result Type to Held

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  • 12/06/2022
  • DocketMotion to Be Relieved as Counsel; Filed by: Attorney; As to: S RAM and M RAM Resources Berhad (Defendant)

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  • 12/06/2022
  • DocketProof of Service (not Summons and Complaint); Filed by: S RAM and M RAM Resources Berhad (Defendant); As to: S RAM and M RAM Resources Berhad (Defendant)

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  • 12/06/2022
  • DocketDeclaration Declaration in Support of Attorneys Motion to be Relieved as Counsel; Filed by: S RAM and M RAM Resources Berhad (Defendant)

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  • 12/06/2022
  • DocketMotion to Be Relieved as Counsel; Filed by: Attorney; As to: S RAM and M RAM Resources Berhad (Defendant)

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  • 12/06/2022
  • DocketProof of Service (not Summons and Complaint); Filed by: S RAM and M RAM Resources Berhad (Defendant); As to: S RAM and M RAM Resources Berhad (Defendant)

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174 More Docket Entries
  • 05/17/2022
  • DocketUpdated -- PLAINTIFF'S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE: Name Extension: blank; Exact Name: PLAINTIFF'S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE; As To Parties changed from S RAM and M RAM Resources Berhad (Defendant) to S RAM and M RAM Resources Berhad (Defendant)

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  • 05/12/2022
  • DocketCase Management Conference scheduled for 11/09/2022 at 08:30 AM in Compton Courthouse at Department A

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  • 05/12/2022
  • DocketNotice of Case Management Conference; Filed by: Clerk

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  • 05/12/2022
  • DocketNotice of Case Management Conference; Filed by: Clerk

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  • 05/12/2022
  • DocketComplaint; Filed by: ICURE Pharmaceutical, Inc. (Plaintiff); As to: S RAM and M RAM Resources Berhad (Defendant)

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  • 05/12/2022
  • DocketCivil Case Cover Sheet; Filed by: ICURE Pharmaceutical, Inc. (Plaintiff); As to: S RAM and M RAM Resources Berhad (Defendant)

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  • 05/12/2022
  • DocketCivil Case Cover Sheet; Filed by: ICURE Pharmaceutical, Inc. (Plaintiff); As to: S RAM and M RAM Resources Berhad (Defendant)

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  • 05/12/2022
  • DocketSummons on Complaint; Issued and Filed by: ICURE Pharmaceutical, Inc. (Plaintiff); As to: S RAM and M RAM Resources Berhad (Defendant)

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  • 05/12/2022
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by: Clerk

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  • 05/12/2022
  • DocketCase assigned to Hon. Thomas D. Long in Department A Compton Courthouse

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Tentative Rulings

Case Number: *******0130 Hearing Date: January 5, 2023 Dept: A

*******0130 ICURE Pharmaceutical, Inc. v. SRAM and MRAM Resources Berhad, et al.

Thursday, January 5, 2023 at 8:30 a.m.

[TENTATIVE] ORDER GRANTING TWO MOTIONS TO BE RELIEVED AS COUNSEL FOR DEFENDANT, SRAM & MRAM RESOURCES BERHAD, BY COUNSEL, CHALOS & CO, P.C. AND KAYE, ROSE & PARTNERS, LLP

The First Amended Complaint alleges that on September 18, 2020, Plaintiff purchased medical grade, FDA approved, patient examination gloves (“Wnavi gloves”) from the SRAM Entities who are alleged to be suppliers and importers of medical gloves. The gloves did not conform to Plaintiff’s specifications as they were food grade. Plaintiff alleges claims for fraud, civil conspiracy, conversion (arising from the alleged non-conformity of the gloves), and for fraud, breach of contract, and unjust enrichment (arising from the warehouse storage costs paid by Plaintiff).

Kay, Rose & Partners, LLP; Bradley M. Rose; and Frank C. Brucculeri, filed this motion on December 6, 2022, for an order to be relieved as counsel for Defendant, SRAM and MRAM Resources Berhad. Chalos & Co, People’s Choice; Michael G. Chalos; and Briton P. Sparkman, as counsel pro hac vice for Defendant, SRAM and MRAM Resources Berhad file a separate motion for the same relief for the clien t’s failure to substantially fulfull its obligations regarding counsel’s services. The client no longer communicates with counsel.

All counsel served the motions on the client by mail at addresses confirmed by telephone and by the client’s website within the last 30 days. Counsel has also lodged a proposed order and served notice on all parties including the client.

Counsel has complied with the requirements of California Rules of Court, Rule 3.1362. Accordingly, the motion is GRANTED. All counsel are ordered to provide a proposed order forthwith, which shall not be effective until the filing of the proof of service of the signed order upon the client.



Case Number: *******0130 Hearing Date: September 28, 2022 Dept: A

*******0130 Icure Pharmaceutical, Inc. v. S Ram and M Ram Resources, et al.

Wednesday, September 28, 2022, at 8:30 a.m.

[TENTATIVE] ORDER GRANTING MOTION TO DISMISS AMENDED COMPLAINT AND COMPEL ARBITRATION BY DEFENDANT, SRAM & MRAM RESOURCES BERHAD

I. BACKGROUND

The First Amended Complaint alleges that on September 18, 2020, Plaintiff purchased patient examination gloves (“WNAVI gloves”) from the SRAM Entities. The parties entered into a second contract on September 27, 2020, for the purchase of Gods Navi gloves (“GODS gloves”) pursuant to a contract for samples (“Sample Contract”). Defendants could not fulfill the order under the Sample Contract and proposed to replace it with WNAVI gloves. Defendants represented that the WNAVI gloves met FDA regulations for medical-grade gloves. Therefore, Plaintiff entered into the Main Contract for purchase of WNAVI gloves. However, Plaintiff alleges that the gloves were non-conforming because they were food-contact gloves.

The WNAVI gloves were later transported to non-party D.B. Warehouse (“the Warehouse”) in Carson. Plaintiff paid for the cost of storage pursuant to allegedly forged invoices created on the Warehouse’s stationery. According to Plaintiff, Defendants generated, altered, or manipulated the invoices before sending them to Plaintiff. The storage was purportedly for Plaintiff’s gloves; however, Plaintiff was unwittingly paying for Defendants’ storage of Emerald gloves stored at the same warehouse. Defendants have been unjustly enriched as it has obtained free storage of its goods at Plaintiff’s expense. Plaintiff alleges claims for fraud, civil conspiracy, conversion (arising from the alleged non-conformity of the gloves), and for fraud, breach of contract, and unjust enrichment (arising from the warehouse storage costs paid by Plaintiff).

II. ARGUMENTSA. Moving papers filed August 9, 2022

Defendant, S RAM & M RAM Resources Berhad (“SRAM Berhad”) seeks an order to dismiss this action and compel arbitration since the Sales Contracts at issue include a provision requiring mandatory arbitration of all disputes arising out of the Sales Contracts. Although SRAM Berhad is not a signatory to the Sales Contracts, Defendant contends that Plaintiff is equitably estopped from proceeding with this civil action since Plaintiff’s claims against SRAM Berhad are intertwined with the underlying contractual obligations.

Alternatively, Defendant requests an order staying the action pending resolution of an arbitration proceeding before the International Court of Arbitration of the International Chamber of Commerce (“ICC Court”) which Plaintiff has already commenced. Plaintiff expressly waived the right to commence any action in another court.B. Opposition filed September 15, 2022

Plaintiff does not oppose arbitrating the contract claims in the interest of judicial economy, although SRAM is not a signatory to the contracts. The fraud claims, however, are not intertwined with the contract claims and are not subject to arbitration. These claims are based on conduct that occurred in California and do not relate to the parties’ performance under the Sales Contracts. There is a separate agreement for storage of Plaintiff’s goods which does not have an arbitration provision.C. Reply filed June 22, 2022

The causes of action alleged in the complaint arise out of the Sales Contracts at issue and fall within the broad scope of the arbitration provision. The ICC arbitration is ongoing. Plaintiff has requested joinder of SRAM (moving party) and other defendants. SRAM will request that the ICC court accept Plaintiff’s request for joinder unlimited to the contract claims. The alleged improper invoicing and storage charges arise out of the Sales Contracts. Whether these claims are arbitrable is for the arbitrator to decide.

III. LEGAL STANDARDS

The issue is whether, SRAM Berhad, a non-signatory can compel Plaintiff to arbitration of any claims asserted against SRAM Berhad.

The court “shall” compel arbitration if it determines that an agreement to arbitrate the controversy exists, unless the right to arbitration has been waived, grounds exist for rescission of the agreement, a party to the arbitration agreement is also a party to a pending court action and there is a possibility of conflicting rulings of fact or law, or the petitioner is a state or federally chartered depository. Code Civ. Proc., 1281.2. The FAC alleges that Plaintiff contracted with SRAM UK for the purchase of the gloves at issue. FAC, 25-26, 31. There is no dispute that both the Sample Contract and the Main Contract contained a provision requiring mandatory arbitration of “any dispute, controversy, or claim rising [sic] out of or in connection with this Agreement, including without limitation, any dispute regarding the enforceability of any provision, which cannot be resolved through good faith negotiations … .” Declaration of Hemalata Arumugam, ISO Motion, Ex. 1, 11.

Defendant has demonstrated that the determination of whether the claims against SRAM Berhad’s claims are subject to arbitration is for the ICC to decide. The ICC Rules state:

“ … if any party raises one or more pleas concerning the existence, validity or scope of the arbitration agreement or concerning whether all of the claims made in the arbitration may be determined together in a single arbitration, the arbitration shall proceed and any question of jurisdiction or of whether the claims may be determined together in that arbitration shall be decided directly by the arbitral tribunal, unless the Secretary General refers to the matter to the [ICC] Court for its decision pursuant to Article 6(4).” Declaration of Briton P. Sparkman ISO Motion, Ex. 1, Art. 6, 3.

“Any decision as to the jurisdiction of the arbitral tribunal, except as to parties or claims with respect to which the [ICC] court decides that the arbitration cannot proceed, shall then be taken by the arbitral tribunal itself.”” Id., 5.

The arbitrator’s exclusive jurisdiction to decide the issue of arbitrability of claims in the first instance is supported by case authority cited in Defendant’s reply holding that “where the existence of an arbitration contract is admitted or found, it is for arbitrators and not the courts to resolve any doubts as to its meaning and extent.” Berman v. Renart Sportswear Corp. (1963) 222 Cal.App.2d 385, 388. Where an agreement has “clearly and unmistakably delegated the question of arbitrability to the arbitrator under all circumstances,” the enforceability of the arbitration agreement should be adjudicated in the first instance by an arbitrator and not in court. Mohamed v. Uber Technologies, Inc. (9th Cir. 2016) 848 F.3d 1201, 1208. Moreover, such “clear and unmistakable evidence … might include a course of conduct demonstrating assent or an express agreement to do so.” Id.

The arbitration provision is broadly stated to include “any dispute, controversy, or claim” arising out of or in connection with Sales Contracts Agreement, “including without limitation, any dispute regarding the enforceability of any provision.” Arumugam, ISO Motion, Ex. 1, 11. Plaintiff acknowledges that it has submitted its “Request for Joinder of non-party SRAM & MRAM Technologies and Resources Limited, (“SRAM CA”), and SRAM Group, defined in the FAC to include both SRAM Berhad (moving party) and SRAM CA. FAC, 1:24-28; 15, Declaration of Jinhee Kim, Ex. D. Plaintiff contends it has requested joinder of claims regarding the contracts and non-conformity of the gloves only, as encompassed by the Contracts. Id. 15. However, this request raises with the arbitrator the arbitrability of claims alleged against SRAM UK as well as non-signatories.

Where a party has signed an arbitration agreement but attempts to avoid arbitration by suing nonsignatory defendants for claims based on the “same facts” that are “inherently inseparable from arbitrable claims against signatory defendants,” that party will be equitably estopped from repudiating the arbitration clause. Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, 1713. The court considers the relationships of the parties, the claims made, and the issues presented. Specifically, whether the claims that the nonsignatory sought to arbitrate were “intimately founded in and intertwined with the underlying contract obligations." Metalclad Corp. at 1713

Plaintiff’s claims against SRAM UK are “intertwined” with its claims against SRAM Berhad. The entire transaction for the purchase of the gloves began with the sales contracts with SRAM UK, who referred Plaintiff to SRAM Berhad, the exporter of the gloves; Plaintiff later issued a letter of credit to SRAM Berhad for $1,010,010 for an order of gloves. FAC 33.

Plaintiff issued a second letter of credit of $9.4 million pursuant to the Main Contract to SRAM Berhad. Plaintiff alleges SRAM Berhad “was responsible for overseeing the manufacturing process and exporting the Goods from Malaysia to California.” FAC 35. All bills of lading for the shipments were allegedly issued by SRAM Berhad. FAC 36. With respect to warehousing the goods, Plaintiff agreed with SRAM to move the goods to D.B. Warehouse, with whom SRAM had a relationship. FAC 38. “SRAM” refers to all Defendants as a collective, including SRAM Berhad.

The court “shall,” upon motion of a party, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” Code Civ. Proc., 1281.4

IV. CONCLUSION

Based on the foregoing, Defendant’s Motion to Compel Arbitration is GRANTED. The court grants Defendant’s alternative request to stay this matter until the completion of arbitration. The court sets an OSC re: Completion of Arbitration for , at 8:30 a.m. in Department A of the Compton Courthouse.



Case Number: *******0130 Hearing Date: June 24, 2022 Dept: A

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

ICURE PHARMACEUTICAL, INC.,

Plaintiff(s),

vs.

S RAM AND M RAM RESOURCES BERHAD,

Defendant(s).

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CASE NO: *******0130

[TENTATIVE] ORDER DENYING AMENDED MOTION FOR PRELIMINARY INJUNCTION

Dept. A

DATE: June 24, 2022

TIME: 8:30 A.M.

COMPLAINT FILED: May 12, 2022

TRIAL DATE: Not set

I. BACKGROUND

The complaint alleges that Plaintiff purchased patient examination gloves (“Wnavi gloves”) from Defendant pursuant to a contract for samples (“Sample Contract”). Plaintiff contracted for Gods Navi gloves, but Defendant could not fulfill the order under the Sample Contract and proposed to replace it with WNavi gloves. Defendant represented that the WNavi gloves met FDA regulations for medical-grade gloves which Plaintiff intended to resell. Therefore, Plaintiff entered into the Main Contract for purchase of WNavi gloves. However, Plaintiff alleges that the gloves were non-conforming because they were food-contact gloves.

The WNavi gloves were later transported to D.B. Warehouse (“the Warehouse”) in Carson. Plaintiff paid for the cost of storage pursuant to allegedly forged invoices created on the Warehouse’s stationery that Defendant allegedly generated, altered, or manipulated before sending them to Plaintiff. The storage was purportedly for Plaintiff’s gloves; however, Plaintiff was unwittingly paying for Defendant’s storage of Emerald gloves stored at the same warehouse. Defendant has been unjustly enriched as it has obtained free storage of its goods at Plaintiff’s expense. Plaintiff alleges claims for fraud, civil conspiracy, conversion (arising from the alleged non-conformity of the gloves), and for fraud, breach of contract, and unjust enrichment (arising from the warehouse storage costs paid for by Plaintiff).

On May 20, 2022, the court granted Plaintiff’s ex parte application for a temporary restraining order and set this hearing for the issuance of a preliminary injunction. The court enjoined Defendant from moving or transferring both Plaintiff’s WNavi gloves and Defendant’s Emerald gloves stored at the Warehouse.

The court heard this motion initially on June 3, 2022 and continued the hearing to permit additional briefing.

II. AMENDED MOTION FOR PRELIMINARY INJUNCTION

A. Motion filed June 6, 2022

Plaintiff asks for a preliminary injunction to prevent Defendant from disposing of its only identifiable assets consisting of the Emerald and Santol gloves (“the SRAM Assets”) stored at the Warehouse and to issue a right to attach order over those assets.

Plaintiff argues that it is likely to succeed on the merits of the claims based on additional evidence since obtained that Defendant has been forging the storage invoices sent to Plaintiff. There is sufficient evidence to prove Defendant’s fraud since the Emerald gloves that belong to Defendant bears the same labeling as Plaintiff’s WNavi gloves. There is sufficient evidence of conversion since Defendant is withholding the Plaintiff’s gloves from Plaintiff.

Plaintiff will suffer irreparable harm if the preliminary injunction does not issue because Plaintiff needs to re-sell the gloves valued at $10 million. Although they are not the grade that Plaintiff agreed to buy, Plaintiff needs to make itself whole. Since the gloves are non-conforming, the court should also prevent Defendant from selling the Plaintiff’s gloves as well as Defendant’s Emerald and Santol gloves. Otherwise, Defendant will dispose of these assets before Plaintiff can obtain judgment. Plaintiff will post an undertaking.

Plaintiff argues it has met all four requirements for a right to attach order since Plaintiff has established a probable validity of obtaining judgment against Defendant. Plaintiff is prepared to submit an undertaking bond of $10,000, the statutory amount.

B. Opposition filed June 15, 2022

Defendant argues that Plaintiff has not established irreparable harm. Plaintiff owns the WNavi gloves being stored at the warehouse. There is no good faith belief that Defendant will sell or dispose of the gloves. There is no need for the court’s intervention.

Plaintiff cannot establish a probability of prevailing on the merits of the claim for fraudulent misrepresentation, civil conspiracy, and conversion. Defendant substituted the WNavi gloves for the Gods Navi Gloves requested by Plaintiff. The WNavi gloves are conforming; they are medical grade gloves. The branding on the WNavi boxes showing “Food Contact Labeling” represents that this is an additional feature of the fully compliant, medical-grade gloves. It does not make the gloves food-service gloves.

The Emerald gloves purchased by Defendant and stored at the Warehouse are an entirely different model of medical grade gloves that were never part of the goods sold to Plaintiff. Plaintiff has no right, title, or interest in the Emerald gloves. Instead, Defendant sold the Emerald gloves to a third-party buyer who is not a party in this action.

Plaintiff cannot establish a probability of prevailing on the remaining claims for fraud, breach of contract, and unjust enrichment, which arise from the alleged fraudulent storage invoices paid by Plaintiff. Defendant does not have a storage agreement with Plaintiff. Defendant suggested D.B. Warehouse for storage of Plaintiff’s gloves since Defendant also stores goods at the Warehouse. However, the storage agreement is between Plaintiff and the Warehouse. Therefore, Defendant passed along to Plaintiff the invoices for the storage costs for which Plaintiff alone is responsible.

Plaintiff cannot establish the claim for conversion because Defendant is not wrongfully withholding Plaintiff’s gloves. D.B. Warehouse restricted access until Plaintiff paid for its storage costs. Defendant merely passed along the information from the Warehouse.

Nor does Defendant have an attachable ownership interest in any of the property located at the warehouse. A prejudgment attachment may only issue in an action based on contract. No contract exists between Plaintiff and Defendant. Moreover, Plaintiff has not identified any goods belonging to Defendant which is subject to attachment.

An injunction is no longer necessary since Plaintiff resolved the warehouse storage charges owed to D.B. Warehouse. Plaintiff’s cargo is no longer at risk of sale or removal because of unpaid storage charges.

There is an ongoing arbitration on the same contractual matter between SRAM UK (not a party to this action) with respect to the first three causes of action arising out of the alleged non-conformity of the gloves. The arbitration warrants an order to stay these proceedings pending the outcome of arbitration.

C. Reply filed June 22, 2022

Plaintiff argues that the evidence is irrefutable that Defendant forged warehouse invoices with instructions to use Plaintiff’s money for Defendant’s warehouse charges. Defendant exported the gloves labeled for food contact, registered them as patient examination gloves, arranged for Plaintiff’s gloves to be stored at the same warehouse used by Defendant, and has been sending forged storage invoices to Plaintiff. Defendant instructed Distriologik personnel to restrict access to Plaintiff’s goods until April of this year.

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III. LEGAL STANDARDS

A preliminary injunction is appropriate in cases including where “it appears that an act during the litigation will produce waste, or great or irreparable injury, to a party to the action;’ when a party threatens to act in a manner which will “tend to render the judgment ineffectual” or where “pecuniary compensation will not afford relief. The purpose of a preliminary injunction is to preserve the status quo pending a decision on the merits. Major v. Miraverde Homeowners Ass’n. (1992) 7 Cal.App.4th 618, 623. A cause of action must exist before injunctive relief may be granted. Id. If a complaint fails to state a cause of action, an order granting a preliminary injunction must be reversed. Id.

In determining whether or not to grant a preliminary injunction, the court looks to two factors, including “(1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.” White v. Davis (2003) 30 Cal.4th 528, 554. The factors are interrelated; “the greater the … showing on one, the less must be shown on the other to support an injunction.” Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.

As the moving party, Plaintiff must demonstrate at least a reasonable probability of success on the merits. IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 73-74. The second factor to be established is the occurrence of irreparable harm before a final judgment could be entered, and that the balance of harm weighs in favor of issuing an injunction. Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1571.) Irreparable harm may exist if the plaintiff can show that “pecuniary compensation would not afford adequate relief.” Code Civ. Proc., 526 (a)(4).

IV. DISCUSSION

A. Plaintiff has not demonstrated irreparable harm.

As a preliminary matter, the requested injunction involves only the threatened disposal of Defendant’s assets, namely the Emerald and Santol gloves. Plaintiff acknowledges in its reply that in April of 2022, Defendant is no longer instructing the Warehouse to restrict Plaintiff’s access to its WNavi gloves. Reply, 1:19-22. Plaintiff also admits that in order to prevent its goods from being sold, Plaintiff paid the storage invoice on April 26, 2022. Declaration of Gibum You, 35. Accordingly, there is no evidence of immediate or irreparable harm to Plaintiff’s gloves. if Plaintiff’s access to its gloves were restricted for a time, Plaintiff’s remedy is one for damages.

Plaintiff seeks an order enjoining Defendant from disposing of its own assets in order to secure Plaintiff’s recovery against Defendant for Plaintiff’s underlying claims, which is the basis for the right to attach order. Motion, 15:14-15. Plaintiff argues there is no other purpose for the injunction other than recovering on its claim for damages. Motion, 16:10-13.

In its Reply, Plaintiff also acknowledges that Defendant has already sold all of its assets stored at the Warehouse. Defendant submitted as evidence a Power of Attorney dated April 25, 2022, wherein Plaintiff gave a third party “TG Medical USA” power of attorney over 32 containers of goods stored at the Warehouse. Declaration of Hemalata Arumugam, Opp., Ex. 15. Plaintiff argues that this proves why a preliminary injunction is necessary.

Plaintiff argues in its reply that the sale to TG Medical USA is a fraudulent transfer and is voidable. Therefore, Plaintiff is entitled to freeze Defendant’s assets. However, Plaintiff did not allege a claim for fraudulent transfer.

B. Plaintiff has not established a basis for issuance of a right to attach order.

Plaintiff must show that it would be entitled to a judgment on the claim on which the attachment is based, (2) plaintiff would suffer great or irreparable injury (within the meaning of Section 485.010) if issuance of the order were delayed until the matter could be heard on notice; (3) The property sought to be attached is not exempt from attachment. Code Civ. Proc., 485.210.

Given the admitted sale of Defendant’s gloves held at the Warehouse, there are no assets for the court to attach.

V. CONCLUSION

As Plaintiff has not met its burden of establishing why a preliminary injunction should issue, the motion is DENIED.

Dated: June 23, 2022

Hon. Thomas D. Long

Judge of the Superior Court



Case Number: *******0130 Hearing Date: June 3, 2022 Dept: A

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

ICURE PHARMACEUTICAL, INC.,

Plaintiff(s),

vs.

S RAM AND M RAM RESOURCES BERHAD,

Defendant(s).

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CASE NO: *******0130

[TENTATIVE] ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

Dept. A

DATE: June 3, 2022

TIME: 8:30 A.M.

COMPLAINT FILED: May 12, 2022

TRIAL DATE: Not set

I. BACKGROUND

The complaint alleges that Plaintiff purchased patient examination gloves from Defendant pursuant to two separate contracts. Defendant represented that the gloves shipped to Plaintiff met FDA regulations for medical-grade gloves which Plaintiff intended to resell. However, Plaintiff alleges that the gloves were non-conforming because they were food-contact gloves.

The gloves were later transported to D.B. Warehouse in Carson. Plaintiff paid for the costs of storage pursuant to allegedly forged invoices sent to Plaintiff by Defendant. The storage was purportedly for Plaintiff’s gloves; however, Plaintiff was unwittingly paying for Defendant’s storage costs for Defendant’s own goods. Defendant has been unjustly enriched as it has obtained free storage at Plaintiff’s expense. Plaintiff alleges claims for fraud, civil conspiracy conversion, fraud, breach of contract, and unjust enrichment.

On May 20, 2022, the court granted Plaintiff’s ex parte application for a temporary restraining order and set this hearing for the preliminary injunction. The court enjoined Defendant from moving or transferring the gloves at issue.

II. MOTION FOR PRELIMINARY INJUNCTION FILED ON MAY 27, 2022.

Plaintiff asks for an order to prevent Defendant from taking any action to sell, transfer, move, replace or dispose of the gloves belonging to Plaintiff which are, WNAVI and Emerald gloves (“Plaintiff’s gloves”). Plaintiff also asks that the court include in the injunction assets belonging to Defendant consisting of Santol and Emerald gloves (“SRAM assets”) held at the same warehouse, and for which Plaintiff has been paying storage costs.

Plaintiff argues that it is likely to succeed on the merits of the claims based on additional evidence since obtained that Defendant has been forging the storage invoices sent to Plaintiff. There is sufficient evidence to prove Defendant’s fraud since the gloves alone are identified as food-grade contrary to Defendant’s representation that they were medical-grade. There is sufficient evidence of conversion since Defendant is withholding the Plaintiff’s gloves from Plaintiff.

Plaintiff will suffer irreparable harm if the preliminary injunction does not issue because Plaintiff needs to re-sell the gloves valued at $10 million. Although they are not the grade that Plaintiff agreed to buy, Plaintiff needs to make itself whole. Since the gloves are non-conforming, the court should also prevent Defendant from selling the both Plaintiff’s assets and the SRAM assets. Otherwise, Defendant will dispose of these assets before Plaintiff can obtain judgment. Plaintiff will post an undertaking.

The court’s file does not reflect that Defendant filed an opposition by May 31, 2022, as ordered by the court.

III. LEGAL STANDARDS

The purpose of a preliminary injunction is to preserve the status quo pending a decision on the merits. Major v. Miraverde Homeowners Ass’n. (1992) 7 Cal.App.4th 618, 623. A cause of action must exist before injunctive relief may be granted. Id. If a complaint fails to state a cause of action, an order granting a preliminary injunction must be reversed. Id.

In determining whether or not to grant a preliminary injunction, the court looks to two factors, including “(1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.” White v. Davis (2003) 30 Cal.4th 528, 554. The factors are interrelated; “the greater the … showing on one, the less must be shown on the other to support an injunction.” Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.

As the moving party, Plaintiff must demonstrate at least a reasonable probability of success on the merits. IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 73-74. The second factor to be established is the occurrence of irreparable harm before a final judgment could be entered. Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1571.) Irreparable harm may exist if the plaintiff can show that “pecuniary compensation would not afford adequate relief.” Code Civ. Proc., 526 (a)(4).

IV. DISCUSSION

A. Plaintiff has demonstrated a probability of prevailing on the fraud claim, which is well pleaded.

A claim for fraud requires facts to support the following elements: (1) a misrepresentation, (2) made with knowledge of its falsity, (3) Defendant intended to defraud Plaintiff, i.e., induce Plaintiff’s reliance, (4) Plaintiff justifiably relied on the misrepresentation, (5) causing damage. Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268. Fraud claims are subject to strict requirements of particularity in pleading. Id. The particularity requirements necessitate pleading facts showing “how, when, where, to whom, and by what means the representations were tendered." Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.

Plaintiff alleges that it communicated with Vee Rao on behalf of Defendant primarily by email in or around September 27, 2020 when Plaintiff first negotiated the first contract to purchase “GODS NAVI” gloves. Complaint, 11. Ms. Rao and Mr. Gurudatta, as executive director for SRAM, could not fulfill Plaintiff’s order but represented it could deliver WNAVI gloves which met the same standards. Complaint 14. The specification sheets falsely represented that the gloves complied with federal regulations. Complaint 14.

Plaintiff alleges it relied on Defendant’s representations and agreed to switch to the WNAVI gloves pursuant to a contract dated December 1, 2020. Complaint 17. Plaintiff also alleges that beginning in August 2021, Defendant sent invoices for the storage of the goods. Complaint 26. Plaintiff communicated with Thomas Mathew, Defendant’s Director, on January 6, 2022, who represented the terms for storage which Plaintiff alleges were forged. Complaint 20, 26.

Plaintiff alleges that it raised the issue that the gloves were non-conforming, but Ms. Rao continued to represent in March 18, 2022, that the gloves were medical grade. Complaint, 34-36. Plaintiff alleges that Defendant deliberately misrepresented the quality of the gloves to induce Plaintiff to enter into a contract for the substituted gloves. Complaint, 48. Plaintiff alleges detrimental reliance and damage of over $10 million, the value of the gloves. Complaint, 47-50.

Plaintiff provides the written communications made with Ms. Rao and Plaintiff’s Associate Manager, Gibum You, with respect to the alleged misrepresentations. You has personal knowledge of the parties’ business dealings. Declaration of You 6, Exhibit C (representation that the goods met federal regulations), Exhibits C and D (the specification sheets sent by Ms. Rao, Exhibit E (screen shots of the goods sent by Ms. Rao to prove that the gloves were medical grade).

The emails documenting the storage charges were sent by Ms. Rao on October 11, 2021. You Declaration 21-28, Ex Q-S.

B. Plaintiff has demonstrated a probability of prevailing on the conversion claim which is well pleaded.

A claim for conversion must establish an ownership interest or a right to possession of property at the time of conversion; Defendant’s wrongful act or dispossession of Plaintiff’s property and resulting damages. Moore v. Regents of the University of California (1990) 51 Cal.3d 120, 136.

Plaintiff alleges that it is the rightful owner of the goods pursuant to its contracts with Defendant, and its payment for storage of the goods. Complaint 61. Defendant transferred title to Plaintiff on September 2021 and notified the storage warehouse that the good were only to be released to plaintiff. Id. Defendant wrongfully exerted control over the goods by preventing Plaintiff from accessing the goods and threatening to sell the goods.

The transfer of title of the goods to Plaintiff is supported by an email sent by Thomas Mathew, Managing Director. You declaration, Ex. K. Ms. Rao refused Plaintiff’s access to the goods on April 19, 2022 and threatened sale of the goods unless the warehouse fees were paid. You declaration, 34, Ex. X.

C. Plaintiff has not established that the injunction should include Defendant’s assets to which Plaintiff is not entitled.

Plaintiff contends that intermingled with its stored goods are assets belonging to Defendants. Motion, 14:20-26. An injunction cannot be used to attach a defendant’s assets or prohibit a defendant generally from transferring his assets so as to render himself judgment-proof. Doyka v. Superior Court, (1991) 233 Cal.App.3d 1134, 1136-37.

D. Plaintiff has not established a basis for a right to attach order.

Attachment is a prejudgment remedy providing for the seizure of one or more of the defendant’s assets to aid in the collection of a money demand pending the outcome of the trial of the action. See Whitehouse v. Six Corporation, (1995) 40 Cal.App.4th 527, 533. Pursuant to the statutory scheme, a writ of attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500). Code Civ. Proc., 483.010(a).

To support the application, Plaintiff must state that the attachment is sought to secure the recovery on a claim upon which an attachment may be issued, the amount to be secured by the attachment, that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based, that the applicant has no information or belief that the claim is discharged in a bankruptcy proceeding or that there is a bankruptcy stay, a description of the property to be attached and a statement that the plaintiff is informed and believes that such property is subject to attachment. Code Civ. Proc., 484.020

Where the defendant is a corporation, a statement that “all corporate property which is subject to attachment pursuant to subdivision (a) of Code of Civil Procedure Section 487.010” satisfies the requirements of this subdivision. Id.

None of the declarations submitted by Plaintiff include these essential statements.

E. Plaintiff proposes to post a bond of $10,000.

Upon granting an injunction, the judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages sustained by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction. Code Civ. Proc., 529.

The purpose of a bond is to cover the defendant’s damages from an improvidently issued injunction. CCP 529(a). In setting the bond, the court must assume that the preliminary injunction was wrongly issued. Abba Rubber Co. v. Seaquist, )1991) 235 Cal.App.3d 1, 15. The damages include any lost profits resulting from the injunction. See Allen v. Pitchess, (1973) 36 Cal.App.3d 321, 327-28. The attorney’s fees necessary to successfully procure a final decision dissolving the injunction also are damages that should be included in setting the bond. Abba, supra, 235 Cal.App.3d at 15-16.

Plaintiff has not provided any basis for damages that Defendant may sustain in the event the preliminary injunction is improperly granted. However, the court will set bond at $50,000 subject to change if the court determines that the undertaking is insufficient. Code Civ. Proc., 529.

V. CONCLUSION

As Plaintiff has met its burden of establishing why a preliminary injunction should issue, the motion is GRANTED. Plaintiff is ordered to post an undertaking in the amount of $50,000.

Dated: June 3, 2022

Hon. Thomas D. Long

Judge of the Superior Court



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