203 KHATSKO vs. OVCHAROV

(1) The claim upon which the attachment is based is one upon which an attachment may be issued. (2) The plaintiff has established the probable validity of the claim upon which the attachment is based. (3) The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based. (4) The amount to be secured by the attachment is greater than zero.”

Plaintiff argues he has shown a probable validity of prevailing on his causes of action for breach of written and oral contract against Ovcharov because Ovcharov’s Telegram messages requesting and confirming each advance, the Alibaba.com order confirmations, and Ovcharov’s later written acknowledgements of the debt constitute a written contract between himself and Ovcharov.

The Telegram messages upon which Plaintiff relies are submitted in a foreign language with no translation. California Rules of Court, rule 3.1110(g) provides: “Exhibits written in a foreign language must be accompanied by an English translation, certified under oath by a qualified interpreter.” Because the Telegram messages are not accompanied by an English translation by a qualified interpreter, they are inadmissible.

The Alibaba.com order confirmations are emails from Alibaba Customer Service to Plaintiff regarding various payments and orders. Nothing in those emails evidences the existence of any contract between Plaintiff and Ovcharov.

Exhibit 12 is a May 4, 2026 email from an attorney, Pavel Kolmogorov, on behalf of Zorka Impex in response to Plaintiff’s May 1 letter. In that letter, Mr. Kolmogorov asserts that “the obligation at issue” is that of Zorka Impex and not Ovcharov individually and that Zorka Impex “confirms that it has an outstanding financial obligation to Mr. Vitali Khatsko arising from payments made by him in January-February 2023 that were used to fund inventory purchases for Zorka Impex, Inc.’s business operations.” Mr. Kolmogorov proposed that Zorka Impex and Plaintiff enter into a formal written loan agreement to resolve the matter and avoid litigation. This letter does not establish the existence of any contract between Plaintiff and Ovcharov.

Because Plaintiff has failed to demonstrate the existence of any express or implied contract with Ovcharov, the application as to Ovcharov is DENIED.

The Court finds that the May 4 letter does, however, demonstrate that Zorka Impex at least impliedly promised to repay the alleged debt in the principal balance of $42,948.08

alleged in the Complaint, which can support a right to attachment. In Klein v. Benaron (1967) 247 Cal.App.2d 607, the Court of Appeal held that an attachment was proper despite the nonexistence of any express or implied in fact contract where the facts revealed that the plaintiff had delivered $50,500 due to the defendant’s misrepresentations and broken promises. (Id. at p. 610 [“the first cause of action is one in fraud . . . but its facts . . . presents [sic] a case where the law implies a promise on defendant’s part to repay it.”].) Further, Plaintiff’s cause of action for unjust enrichment can support an attachment. (See Santa Clara Waste Water Co. v. Allied World Nat. Assurance Co. (2017) 18 Cal.App.5th 881, 886 [affirming attachment based on unjust enrichment claim].)

Here, the May 4 letter demonstrates that Plaintiff conferred a benefit on Zorka Impex and that Zorka Impex has acknowledged the indebtedness and it would be inequitable to allow Zorka Impex to retain the benefit. Thus, the Court finds that Plaintiff has established the probable validity of its unjust enrichment claim against Zorka Impex and that claim is one upon which attachment may be issued. Further, the amount to be secured by the attachment is greater than zero and the Court finds that the attachment is not sought for any purpose other than recovery on Plaintiff’s claim.

In light of the above, Plaintiff’s Application for Right to Attach Order and Order for Issue of Writ of Attachment as to Zorka Impex is GRANTED in the amount of $42,948.08.

Plaintiff shall file an undertaking of $10,000. (Code Civ. Proc., § 489.220(a).)

Moving party to give notice. 204 Geraci Legal Corporation vs. BriteCity, LLC, 25-01523031 Demurrer Defendants Britecity, LLC, Chad Gniffke, and Scott Senerchia (“Defendants”) demur to all twelve causes of action asserted in Plaintiffs Geraci Legal Corporation and Geraci LLP’s Complaint.

Initially, Defendants assert that Plaintiffs are barred from pursuing this action based on the sham pleading doctrine. Per Defendants, Plaintiffs pled inconsistent facts in a prior action, Anthony Geraci v. Geraci LLP et al. Orange County Superior Court Case No. 25-01500841 (“First Geraci Action”). Specifically, Defendants contend that the complaint in the First Geraci Action involved the same www.geracillp.com domain name that Plaintiffs contend Defendants herein converted; yet, the complaint in the First Geraci Action effectively pled that Plaintiffs do not own the domain name. (Dem. at 1:15-2:2.)

Under the sham pleading doctrine, if a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations. (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 447.)

The doctrine can also be invoked as against a party’s prior pleading in other cases. As set forth in Cantu v. Resolution Trust Corporation:

“Both trial and appellate courts may properly take judicial notice of a party’s earlier pleadings and positions as well as established facts from both the same case and other cases. The complaint should be read as containing the judicially noticeable facts, even when the pleading contains an express allegation to the contrary. A plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false. Likewise, the plaintiff may not plead facts that contradict the facts or positions that the plaintiff pleaded in earlier actions or suppress facts that prove the pleaded facts false.

“The principle is that of truthful pleading. When the plaintiff pleads inconsistently in separate actions, the plaintiff’s complaint is nothing more than a sham that seeks to avoid the effect of a demurrer. Under such circumstances, the court will disregard the falsely pleaded facts and affirm the demurrer.”

(Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877–878 (internal citations omitted) (emphasis in original).)

Here, the complaint in the First Geraci Action does not specifically identify the domain names that were in dispute. Paragraphs 30 and 56 only reference the “website” or the “GERACI LLP website” without identifying the domain. (Defts. RJN, Exh. A, ¶¶ 30, 32, 56.) Further, the Geraci LLP involved in the first Geraci lawsuit was a California limited liability partnership, whereas the Geraci LLP involved in this case is an Arizona limited liability partnership. (Compare, Compl. ¶2 to Defts. RJN, Exh. A, ¶4.) Thus, they are not the same entities. There is thus no basis for the Court to conclude that the domain names at issue in both actions are the same.

Additionally, as Geraci LLP was only a defendant (not a plaintiff) in the First Geraci Action, even if it were the same entity, the sham pleading doctrine could not be invoked against it based on allegations that it did not plead in the prior complaint.