Free Motion for TRO - District Court of California - California

Case 3:08-cv-01042-JAH-JMA

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LAW OFFICE OF ERIC I. MICHELMAN Eric I. Michelman, Bar No. 145017 2 2301 Dupont Drive, Suite 530 Irvine, CA 92612 3 Telephone: (949) 553-1800 Facsimile: (949) 553-1880 4 email: [email protected]
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Attorney for Plaintiff A WALL STREET FUND I, LTD., 6 a Florida limited partnership
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IN THE UNITED STATES DISTRICT COURT
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FOR THE SOUTHERN DISTRICT OF CALIFORNIA
10 11 12 13 Plaintiff, 14 15 16 17 18 19 20 Defendants. 21 22 23 24 25 26 vs.
NEW WORLD CAPITAL CURRENCY FUND, L.P., a Delaware limited partnership, NEW WORLD CAPITAL EQUITY FUND, L.P., a Delaware limited partnership, NEW WORLD CAPITAL MANAGEMENT, LLC, a Delaware limited liability company, GREGORY DURAN, an individual; and DOES 1-10;

A WALL STREET FUND I, LTD., a Florida limited partnership

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 08 CV 1042 JAH (JMA)

EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION;
[SUBMITTED HEREWITH: MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF THOMAS G. BUCKLEY, JR. AND ERIC I. MICHELMAN; REQUEST FOR JUDICIAL NOTICE; [PROPOSED] TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION]

Judge: Hon. John A. Houston Courtroom: 11 Date:

Plaintiff A WALL STREET FUND I, LTD. hereby applies Ex Parte for a Temporary
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Restraining Order pending the hearing and determination of an Order To Show Cause Re:
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EX PARTE APPLICATION FOR T.R.O. AND OSC RE: PRELIM. INJUNCTION
Case No. 08CV 1042 JAH (JMA)

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Preliminary Injunction enjoining and restraining the Defendants and each of them, and their agents, partners, managers, employees, assignees, successors, representatives, attorneys and all persons and entities acting under, or in concert with, or on behalf of any of them, or subject to the direct or indirect control of all or any of them, from engaging in or performing directly or indirectly any and all of the following acts:

(i) investing or trading any funds and investments including, but not limited to, cash, securities, bonds, notes, commodities, derivatives, exchange traded funds, real estate and currency, except for selling such investments solely for U.S. Dollars; and (ii) employing or contracting with Gregory Duran, or making any payments to, or on behalf of, (a) Gregory Duran, or (b) any relative Gregory Duran, or (c) any entity which is directly or indirectly controlled by, Gregory Duran.

This Ex Parte Application will be made on the grounds that unless the Defendants are immediately enjoined from committing the above-referenced acts, Plaintiffs will suffer irreparable harm before the matter can be heard on notice. This Ex Parte Application is made on the further grounds that hedge fund Defendants claim they are "insolvent" and are otherwise engaging in oppressive and unfair practices and refuse to return funds to Plaintiff which belong to Plaintiff. The continuation of such practices will result in great and irreparable injury to Plaintiff unless a Temporary Restraining Order is issued and an Order To Show Cause Re: Preliminary Injunction is granted. Furthermore, Defendants claim of "insolvency" creates a significant threat of irreparable injury since a money judgment would be ineffective and therefore an indequate remedy, and thus requires the parties to maintain the status quo. This Ex Parte Application will be based on this Application, on the attached Declarations of (i) Thomas G. Buckley, Jr. and (ii) Eric I. Michelman, the Complaint 2
EX PARTE APPLICATION FOR T.R.O. AND OSC RE: PRELIM. INJUNCTION
Case No. 08CV 1042 JAH (JMA)

Case 3:08-cv-01042-JAH-JMA

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previously filed in this action, the Memorandum of Points and Authorities filed herewith, and the Request For Judicial Notice filed herewith, the records and files herein, and on such evidence as may be presented in connection with this Application.

Dated: July 2, 2008

LAW OFFICES OF ERIC I. MICHELMAN s/Eric I. Michelman Eric I. Michelman Attorney for Plaintiff A WALL STREET FUND I, LTD.

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EX PARTE APPLICATION FOR T.R.O. AND OSC RE: PRELIM. INJUNCTION
Case No. 08CV 1042 JAH (JMA)

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LAW OFFICE OF ERIC I. MICHELMAN Eric I. Michelman, Bar No. 145017 2 2301 Dupont Drive, Suite 530 Irvine, CA 92612 3 Telephone: (949) 553-1800 Facsimile: (949) 553-1880 4 email: [email protected]
1

Attorney for Plaintiff A WALL STREET FUND I, LTD., 6 a Florida limited partnership
5 7 8 9 10 11 12 13 14 vs. 15 16 17 18 19 20 21 22 23 24 25 26 27 28
NEW WORLD CAPITAL CURRENCY FUND, L.P., a Delaware limited partnership, NEW WORLD CAPITAL EQUITY FUND, L.P., a Delaware limited partnership, NEW WORLD CAPITAL MANAGEMENT, LLC, a Delaware limited liability company, GREGORY DURAN, an individual; and DOES 1-10;

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

A WALL STREET FUND I, LTD., a Florida limited partnership Plaintiff,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 08 CV 1042 JAH (JMA)

MEMORANDUM OF POINTS AND AUTHORITIES;
[FILED IN SUPPORT OF APPLICATION FOR TEMPORARY RESTRAINING ORDER AND OSC RE: PRELIMINARY INJUNCTION]

Judge: Hon. John A. Houston Courtroom: 11 Date:

Plaintiff, A WALL STREET FUND I, LTD., invested $750,000 in two "hedge funds"on November 30, 2007. The money is now missing without a trace. Plaintiff's ex parte application for a Temporary Restraining Order pending the hearing and determination of an Order to Show Cause Re: Preliminary Injunction seeks to enjoin and restrain the Defendants and each of them, and their agents, partners, managers, employees,
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR T.R.O.
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assignees, successors, representatives, attorneys and all persons and entities acting under, or in concert with, or on behalf of any of them, or subject to the direct or indirect control of all or any of them, from engaging in, or performing directly or indirectly, or consummating any and all of the following acts: (i) investing or trading any funds and investments including, but not limited to, cash, securities, bonds, notes, commodities, derivatives, exchange traded funds, real estate and currency, except for selling such investments solely for U.S. Dollars, and (ii) employing or contracting with Gregory Duran, or making any payments to or on behalf of (a) Gregory Duran, or (b) any relative Gregory Duran, or (c) any entity which is directly or indirectly controlled by, Gregory Duran.

I.

THE COURT HAS THE AUTHORITY TO ISSUE THE REQUESTED INJUNCTIVE RELIEF A. The Legal Standard For Issuance of a Temporary Restraining Order and a Preliminary Injunction.

The party seeking a Temporary Restraining Order must show either (i) a combination of probable success on the merits and the possibility of irreparable injury, in that the relief sought in the underlying lawsuit depends, in whole or in part, on restraining the commission or continuance of an act which would cause waste or irreparable injury, or (ii) that serious questions are raised and the

balance of hardships tips sharply in favor of the moving party. Stuhlbarg Int'l Sales Co., Inc. v
John D. Brush & Co., Inc., 240 F3d 832, 839-40 (9th. Cir. 2001). Irreparable injury exists when

compensatory monetary damages is the remedy sought by plaintiff but the money judgment may be uncollectible due to the defendant's insolvency and where the plaintiff seeks to preserve a fund in which plaintiff has a claim, Decker v. Independence Shares Corp, 311 US 282, 290 , 61 S. Ct. 229, 234 (1940), Hendricks v. Bank of America, N.A. 408 F.3d 1127, 1141 (9th Cir. 2005) [defendant was shown to be insolvent], and to preserve equitable remedies Walczak v. EPL Prolong, Inc., 198 F3d.725, 732 (9th Cir. 1999) [ injunction against liquidating corporate assets in suit for breach of fiduciary duty]. A Temporary Restraining
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR T.R.O.
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Order is granted to maintain the status quo pending a decision on a Preliminary Injunction. Granny Goose Foods, Inc. v Brotherhood of Teamsters & Auto Truck Drivers, 4115 U.S. 423, 439 (1974).

B.

Plaintiffs Is Likely To Prevail On The Merits Since the Defendants Misled Plaintiff Into Making the Investments By Use of False Information and the Defendants Never Provided Any Accounting or Reports Regarding the Status of Plaintiff's Funds, and the Invested Funds are Now Missing Without a Trace.

The facts of the case are simple, and are specifically set forth in the Declaration of Thomas G. Buckley, Jr. filed herewith. On the last day of November, 2007, Plaintiff invested an aggregate of $750,000 in two "hedge funds" and all funds are now missing without a trace. (Buckley Decl. at ¶13, 15-17, 27, 28). The two "hedge fund" defendants were "managed" by defendant Duran through his limited liability company, New World Capital Management, LLC, also a defendant ("Capital Management"). In April, 2008, Capital Management claimed the "hedge funds" became "insolvent" (the "Insolvency Letter") (Buckley Decl. at ¶25). Plaintiff's decision to invest was made based upon false and misleading information posted by the defendants on the www.hedgefund.net website. (Buckley Decl. at ¶3 through ¶8). The false information included a five year and three year performance track record for the "hedge fund" defendants, which under no circumstance could be true in light of the recent learning that the "hedge fund" defendants were, in fact, only organized, a mere 2 and 5 months, respectively, prior to Plaintiff's November, 2007 investment. (Buckley Decl. at ¶30; Request For Judicial Notice ¶¶1, 2 & 3). In February, 2008, Plaintiff exercised its redemption rights with respect to its investment in the New World Capital Equity Fund, L.P., which was acknowledged and agreed to by the defendants, but was subsequently delayed by defendants' "excuse" of waiting to the end of the fiscal quarter (Buckley Decl. at ¶¶ 21, 22, 23). Thereafter, Plaintiff received the Insolvency Letter. (Buckley Decl. at ¶25 and Exhibit "A" attached thereto). Plaintiff never received a return of any of its investment. (Buckley Decl. at ¶24). At no time has any of the defendants provided Plaintiff with an accounting or
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR T.R.O.
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report as to the use or whereabouts of Plaintiff's investment proceeds. (Buckley Decl.at ¶¶16, 17, 27, and 28). Given the repeated deceptions by the Defendants with respect to inducing Plaintiff to invest, and the delaying tactics not to return Plaintiff's investment, it is highly likely that Plaintiff will prevail on the merits in this case. Plaintiff will suffer irreparable injury in this case without an order for temporary restraining order in that Plaintiff is seeking to (i) preserve a fund in which Plaintiff has a claim in light of the fact that the hedge fund defendants claim to be insolvent (Buckley Decl at ¶25), and to (ii) preserve equitable remedies including but not limited to rescission of Plaintiff's investment, and constructive trust of assets held by the defendants.

C.

Balancing The Equities, The Court Should Issue Immediate Injunctive Relief To Preserve The Status Quo and Avoid Irreparable Harm; Defendants Will Suffer No Adverse Effect.

The circumstances show that injunctive relief is absolutely required to protect Plaintiff. Analyzing the benefits and burdens of the Plaintiff and Defendants in the event a TRO is granted clearly weighs in favor of the Plaintiff. If, as the Defendants claim, the "hedge funds" are insolvent, and there are no funds remaining, then the TRO will not burden the Defendants because the TRO will, in effect, be restraining no conduct, and will be no burden on the Defendants. If however, the Defendants have, once again, misled the Plaintiff, and there are assets remaining, then given the Defendants' deceptions perpetrated upon the Plaintiff with respect to the inducement to invest and the current "insolvent" status of the "hedge funds", and the Defendants' failure to return the Plaintiff's funds, and the likelihood that the Plaintiff will prevail in this case, then the Defendants will have suffered no burden, since it is, and has always been, Defendants' obligation to hold and return Plaintiff's funds to the Plaintiff. Failure to grant the injunctive relief herein sought would serve to impair the Plaintiff's ability to preserve a fund in which plaintiff has a claim, and to preserve its equitable remedies, and thus would cause irreparable injury.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR T.R.O.
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III.

CONCLUSION Defendants have acted deceptively and unlawfully in taking Plaintiff's funds without a

trace. Plaintiff, now in pursuit of the recovery of such funds, is now confronted with irreparable harm from the Defendants' attempted, if not completed alleged misappropriation. Plaintiff seeks to preserve the status quo of the "hedge fund" activities and its manager and to preserve its rights to equitable remedies (e.g. rescission, constructive trust). Defendants will not be harmed by the granting of the Temporary Restraining Order which prevents them from further investing or trading any funds and investments pending a hearing on Preliminary Injunction. For these, and all of the foregoing reasons, this Court should immediately grant a Temporary Restraining Order and Order To Show Cause Re: Preliminary Injunction.

Dated: July 2, 2008

LAW OFFICES OF ERIC I. MICHELMAN

s/Eric I. Michelman Eric I. Michelman Attorney for Plaintiff A WALL STREET FUND I, LTD.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR T.R.O.
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April 11, 2008

Dear Investors, Trading losses have rendered New World Capital Currency Fund L.P. and New World Capital Equity Fund LP. insolvent. No apology is adequate but we want you to know how profoundly sorry and deeply pained we are about this result. You entrusted your money to our investment strategy and it failed. Also, we want to apologize for not speaking with you directly and ask that you forgive the fact that our first communication is this letter. As you can imagine, recent events required our undivided attention. The losses in the funds resulted from market conditions in certain currency pairs. Our investment strategy and strong belief in market direction collided with the volatility of the world economy and currency markets, leading to the funds' collapse. Managing the risks of such extraordinary events is always challenging. In hindsight, our investment strategy like the strategies of many other funds - was insufficient. Once again, let us tell you that there is no way to express how sorry we are for our lack of success for you. We are continuing our evaluation of the trading losses and intend to provide you with further information. Sincerely, New World Capital Management LLC

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LAW OFFICE OF ERIC I. MICHELMAN Eric I. Michelman, Bar No. 145017 2 2301 Dupont Drive, Suite 530 Irvine, CA 92612 3 Telephone: (949) 553-1800 Facsimile: (949) 553-1880 4 email: [email protected]
1

Attorney for Plaintiff A WALL STREET FUND I, LTD., 6 a Florida limited partnership
5 7 8

IN THE UNITED STATES DISTRICT COURT
9

FOR THE SOUTHERN DISTRICT OF CALIFORNIA
10 11 12 13 Plaintiff, 14 15 16 17 18 19 20 Defendants. 21 22 23 24 25 26 27 28 vs.
NEW WORLD CAPITAL CURRENCY FUND, L.P., a Delaware limited partnership, NEW WORLD CAPITAL EQUITY FUND, L.P., a Delaware limited partnership, NEW WORLD CAPITAL MANAGEMENT, LLC, a Delaware limited liability company, GREGORY DURAN, an individual; and DOES 1-10;

A WALL STREET FUND I, LTD., a Florida limited partnership

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 08 CV 1042 JAH (JMA)

REQUEST FOR JUDICIAL NOTICE
[FILED IN SUPPORT OF PLAINTIFF'S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND OSC RE: PRELIMINARY INJUNCTION]

Judge: Hon. John A. Houston Courtroom: 11 Date:

Plaintiff, A Wall Street Fund I, L.P., hereby requests that, with respect to its Ex Parte Application for Temporary Restraing Order and OSC Re: Preliminary Injunction, this Court take judicial notice of: 1. Delaware Department of State: Division of Corporations - Entity Details (website 1
REQUEST FOR JUDICIAL NOTICE
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page posted at https://sos-res.state.de.us/tin/GINameSearch.jsp) for NEW WORLD CAPITAL CURRENCY FUND, L.P., a Delaware limited partnership, (website page posted at https://sos-res.state.de.us/tin/GINameSearch.jsp), a true and correct copy of which is attached hereto as Exhibit "A"; 2. Delaware Department of State: Division of Corporations - Entity Details for

NEW WORLD CAPITAL EQUITY FUND, L.P., a Delaware limited partnership, (website page posted at https://sos-res.state.de.us/tin/GINameSearch.jsp), a true and correct copy of which is attached hereto as Exhibit "B"; 3. Delaware Department of State: Division of Corporations - Entity Details for

NEW WORLD CAPITAL MANAGEMENT, LLC, a Delaware limited liability company, (website page posted at https://sos-res.state.de.us/tin/GINameSearch.jsp), a true and correct copy of which is attached hereto as Exhibit "C"; This request is based upon this Request For Judicial Notice, the above referenced documents, and on such further documents, memoranda and arguments as may be presented or filed at or before the hearing on the Plaintiff's Ex Parte Motion For Temporary Restraining Order and OSC re: Preliminary Injunction. The Court is authorized to take judicial notice of these papers pursuant to Federal Rules of Evidence Code Section 201(b)(2) as these are from the records of the Delaware Department of State.

DATED: July 2, 2008

Respectfully submitted, LAW OFFICE OF ERIC I. MICHELMAN

s/Eric I. Michelman Eric I. Michelman Attorney for Plaintiff A WALL STREET FUND I, LTD.

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REQUEST FOR JUDICIAL NOTICE
Case No. 08CV 1042 JAH (JMA)

Division of Corporations - Online Services Case 3:08-cv-01042-JAH-JMA

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Visit the Governor | General Assembly | Courts | Other Elected Officials | Federal, State & Local Sites
State Directory | Help | Search Delaware :
Department of State: Division of Corporations

Citizen Services | Business Services | Visitor Info.

HOME About Agency Secretary's Letter Newsroom Frequent Questions Related Links Contact Us Office Location SERVICES Pay Taxes File UCC's Delaware Laws Online Name Reservation General Information Status Validate Certificate INFORMATION Corporate Forms Corporate Fees UCC Forms and Fees UCC Searches Taxes Expedited Services Service of Process Registered Agents Get Corporate Status Submitting a Request

Frequently Asked Questions View Search Results

Entity Details

THIS IS NOT A STATEMENT OF GOOD STANDING File Number: Entity Name: Entity Kind: Residency: 4425539 Incorporation Date / Formation Date: 09/19/2007 (mm/dd/yyyy)

NEW WORLD CAPITAL CURRENCY FUND, LP LIMITED PARTNERSHIP (LP) DOMESTIC Entity Type: State: GENERAL DE

REGISTERED AGENT INFORMATION Name: Address: City: State: Phone: CORPORATION SERVICE COMPANY 2711 CENTERVILLE ROAD SUITE 400 WILMINGTON DE (302)636-5401 County: Postal Code: NEW CASTLE 19808

Additional Information is available for a fee. You can retrieve Status for a fee of $10.00 or more detailed information including current franchise tax assessment, current filing history and more for a fee of $20.00. Would you like Status Status,Tax & History Information Submit

Back to Entity Search
To contact a Delaware Online Agent click here.

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delaware.gov

https://sos-res.state.de.us/tin/controller

07/02/08

Division of Corporations - Online Services Case 3:08-cv-01042-JAH-JMA

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Visit the Governor | General Assembly | Courts | Other Elected Officials | Federal, State & Local Sites
State Directory | Help | Search Delaware :
Department of State: Division of Corporations

Citizen Services | Business Services | Visitor Info.

HOME About Agency Secretary's Letter Newsroom Frequent Questions Related Links Contact Us Office Location SERVICES Pay Taxes File UCC's Delaware Laws Online Name Reservation General Information Status Validate Certificate INFORMATION Corporate Forms Corporate Fees UCC Forms and Fees UCC Searches Taxes Expedited Services Service of Process Registered Agents Get Corporate Status Submitting a Request

Frequently Asked Questions View Search Results

Entity Details

THIS IS NOT A STATEMENT OF GOOD STANDING File Number: Entity Name: Entity Kind: Residency: 4386575 Incorporation Date / Formation Date: 07/10/2007 (mm/dd/yyyy)

NEW WORLD CAPITAL EQUITY FUND, L.P. LIMITED PARTNERSHIP (LP) DOMESTIC Entity Type: State: GENERAL DE

REGISTERED AGENT INFORMATION Name: Address: City: State: Phone: CORPORATION SERVICE COMPANY 2711 CENTERVILLE ROAD SUITE 400 WILMINGTON DE (302)636-5401 County: Postal Code: NEW CASTLE 19808

Additional Information is available for a fee. You can retrieve Status for a fee of $10.00 or more detailed information including current franchise tax assessment, current filing history and more for a fee of $20.00. Would you like Status Status,Tax & History Information Submit

Back to Entity Search
To contact a Delaware Online Agent click here.

site map |

about this site |

contact us | translate |

delaware.gov

https://sos-res.state.de.us/tin/controller

07/02/08

Division of Corporations - Online Services Case 3:08-cv-01042-JAH-JMA

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Visit the Governor | General Assembly | Courts | Other Elected Officials | Federal, State & Local Sites
State Directory | Help | Search Delaware :
Department of State: Division of Corporations

Citizen Services | Business Services | Visitor Info.

HOME About Agency Secretary's Letter Newsroom Frequent Questions Related Links Contact Us Office Location SERVICES Pay Taxes File UCC's Delaware Laws Online Name Reservation General Information Status Validate Certificate INFORMATION Corporate Forms Corporate Fees UCC Forms and Fees UCC Searches Taxes Expedited Services Service of Process Registered Agents Get Corporate Status Submitting a Request

Frequently Asked Questions View Search Results

Entity Details

THIS IS NOT A STATEMENT OF GOOD STANDING File Number: Entity Name: 4399430 Incorporation Date / Formation Date: 07/31/2007 (mm/dd/yyyy)

NEW WORLD CAPITAL MANAGEMENT, LLC LIMITED LIABILITY COMPANY (LLC) DOMESTIC

Entity Kind:

Entity Type:

GENERAL

Residency:

State:

DE

REGISTERED AGENT INFORMATION Name: Address: City: State: Phone: CORPORATION SERVICE COMPANY 2711 CENTERVILLE ROAD SUITE 400 WILMINGTON DE (302)636-5401 County: Postal Code: NEW CASTLE 19808

Additional Information is available for a fee. You can retrieve Status for a fee of $10.00 or more detailed information including current franchise tax assessment, current filing history and more for a fee of $20.00. Would you like Status Status,Tax & History Information Submit

Back to Entity Search
To contact a Delaware Online Agent click here.

site map |

about this site |

contact us | translate |

delaware.gov

https://sos-res.state.de.us/tin/controller

07/02/08

Case 3:08-cv-01042-JAH-JMA

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LAW OFFICE OF ERIC I. MICHELMAN Eric I. Michelman, Bar No. 145017 2 2301 Dupont Drive, Suite 530 Irvine, CA 92612 3 Telephone: (949) 553-1800 Facsimile: (949) 553-1880 4 email: [email protected]
1

Attorney for Plaintiff A WALL STREET FUND I, LTD., 6 a Florida limited partnership
5 7 8

IN THE UNITED STATES DISTRICT COURT
9

FOR THE SOUTHERN DISTRICT OF CALIFORNIA
10 11 12 13 Plaintiff, 14 15 16 17 18 19 20 Defendants. 21 22 23 24 25 26 27 28 vs.
NEW WORLD CAPITAL CURRENCY FUND, L.P., a Delaware limited partnership, NEW WORLD CAPITAL EQUITY FUND, L.P., a Delaware limited partnership, NEW WORLD CAPITAL MANAGEMENT, LLC, a Delaware limited liability company, GREGORY DURAN, an individual; and DOES 1-10;

A WALL STREET FUND I, LTD., a Florida limited partnership

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 08 CV 1042 JAH (JMA)

DECLARATION OF ERIC I. MICHELMAN PURSUANT TO CivLR 83.3.h.2
[FILED IN SUPPORT OF PLAINTIFF'S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND OSC RE: PRELIMINARY INJUNCTION]

Judge: Hon. John A. Houston Courtroom: 11 Date:

I, Eric I. Michelman, hereby declare that: 1. I am the attorney of record for the Plaintiff in this action, and execute and file this

Declaration pursuant to CivLR Section 83.3.h.2. in support of Plaintiff's Ex Parte Application For Temporary Restraining Order and OSC Re: Preliminary Injunction. If called 1
DECLARATION OF ERIC I. MICHELMAN ­ EX PARTE APPLICATION: TRO
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as a witness in this matter, I can competently and completely testify to the facts stated herein. 2. Opposing Parties have not been notified of Plaintiff's Ex Parte Application for

Temporary Restraining Order and OSC Re: Preliminary Injunction, for two reasons: (i) the defendants have only recently been served (June 17, 2008 and June 19, 2008, respectively) and have not yet appeared in this action; and (ii) Plaintiff should not be required to inform the defendants of the relief sought given that the reason the Plaintiff seeks to obtain a Temporary Restraining Order at this early stage of the litigation is that it is believed that the cause of Plaintiff's loss of over $750,000 in this case was the result of a fraud perpetrated upon the Plaintiff by the defendants all of whom appear to be under the control of defendant Gregory Duran, who, if noticed, will have the opportunity and incentive pending the outcome of the Application to continue to perpetrate fraud and deception upon the Plaintiff.
This Declaration is executed in Irvine, California on July 2, 2008, under the penalties of perjury.

s/ Eric I. Michelman Eric I. Michelman Attorney for Plaintiff

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DECLARATION OF ERIC I. MICHELMAN ­ EX PARTE APPLICATION: TRO
Case No. 08CV 1042 JAH (JMA)