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7 BY J. TOR~S, Dpfji:~),
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA ~ "\
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9 FOR THE COUNTY OF LOS ANGELES
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Plaintiffs ABC Escrow, Inc., and Alcohol Enterprises, Inc., hereby make this Ex Parte
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Application for Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction
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against their former employee, Defendant Michael Steinhauer, who, in retaliation for the lawful
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ternlination of his at-will employment with Plaintiffs on March 5, 2004, has subsequently
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intentionally interfered with Plaintiffs' prospective economic advantage with one of the~ Ij,)hg'-
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st~ding clients and. unless restrained by this Court, Plaintiffs are informed f~ ~el~w,~h~t; ~
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D~ndant will continue his tortious course of conduct, to Plaintiffs' irreparable~Yn~ry.S ~ ,r;; ,".' ~~
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flf Accordingly, Plaintiffs seek to enjoin Defendant Michael Steinhauer from communiclliiii:g~ :~
aw;:;,~ ~;
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wi, calling on, soliciting, taking away, or attempting to communicate, call on. solicit ori:ke
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either for Defendant, or for any other person, firm, corporation or entity, any of Plaintiffs' c1ieryts,"
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customers and employees.
Pa e \
EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND osc RE: PRELIMINARY INJUN
'RIGINAL
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This Ex Part", Application is based on the upon the instant Application, the Memorandum
2 of Points and Authorities and the Declarations of Craig Block and Robert P. Wargo (Re: Notice of
3 Hearing), and any and all records and pleadings on liIe with this Court in connection with the above-
4 referenced matter.
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6 Dated: March 29, 2004 NALD JASON PALMIERI
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8 Robert P. Wargo
Attorneys for Plaintiffs
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EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND O$C RE: PRELIM1NARY INJUNCTION
MEMORANDUM OF POINTS AND AUTHORITIES
2 I
3 STATEMENT OF FACTS
4 The facts ofthis case are relatively straightforward and compel the granting ofthe Temporary
5 Restraining Order and Order to Show Cause requested by Plainti tTs herein against Defendant
6 Michael Steinhauer.
7 As set forth in the attached Declaration ofCraig Block, an officer ofboth corporate Plaintiffs,
8 Plaintiffs ABC Escrow, Inc., and Alcohol Enterprises, Inc., are related California corporations
9 qualified to transact business in this state, and are engaged in the business of acting as a third party
10 tinder and providing consulting and escrow services in connection with the sale, purchase and
II transfer of alcoholic beverage licenses in California and throughout the United States. On or about
12 August 20, 200 I, Plaintiffs and Defendant Steinhauer entered into a written Employment Agreement
14 Sales/Customer Service Representative, on the terms and conditions set forth in the Agreement, a
16 Paragraph 10.4 of the Employment Agreement states that "during his ... employment and
17 for a period of two (2) years following the discharge, resignation or termination of [Defendant] or
18 the termination ofthis Agreement, [Defendant] shall not directly or indirectly use any [of Plaintiffs']
19 Confidential Information to call on, solicit, take away, or attempt to call on, solicit or take away,
20 either for [Defendant] or for any other person, firm, corporation or entity the company's clients,
22 Employment Agreement to include: (I) the name, address or telephone number of clients or
23 cq~omers; (2) infornJation obtained trom customers or clients; (3) costs incurred by the Company
24 in~'qui ring licenses; (4) fees charged clients or customers for services; and (5) procedures utilized
25 b' e Company in acquiring licenses on behalf of clients.
"
26 i Paragraph 10.5 of the Employment Agreement states that "no adequate remedy at law may
27 exit for any violation of Sections 10.1-10.4 of this Agreement and that in the case of any breach,
28 a restraining order or injunction may be issued in addition to any other rights or remedies, including
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EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND osc RE: PRELIMINARY INJUNCTION
damages, which may be appropriate." Paragraph 11.9 ofthe Employment Agreement states that "in
2 the event of any litigation between or among the parties hereto respecting or arising out of this
3 Agreement, the prevailing party or parties shall be entitled to recover reasonable attorneys' fees and
6 reorganization. As ofthat date, Defendant Steinhauer knew that Plaintiffs had recently brokered the
7 sale of a liquor license to Safeway, one of Plaintiffs' longtime clients, for the sum of $200,000.
8 Plaintiffs are informed and believe, and thereupon allege, that Defendant Steinhauer also knew that
9 Plaintiffs were then in the midst ofnegotiations with Safeway for the potential sale ofanother liquor
10 license for the sum 01'$210,000, which Plainti ffs would acquire from a potential seller for $120,000.
II On March 11,2004, Defendant Steinhauer twice telephoned Jan Martin, a vice president of
12 Safeway, who was Plaintiffs' principal contact with the company. During the first conversation,
13 Steinhauer identified himself only as "Mike" to Ms. Martin and stated to her that he had a liquor
15 Ms. Martin thereafter contacted Craig Block, an officer of both Plaintiffs, and infonned that
16 she had been contacted by someone named "Mike" calling from the 323 area code and offering her
17 the liquor license. Mr. Block suspected that "Mike" was Plaintiffs' recently terminated employee,
18 Defendant Steinhauer, and that the license he was attempting to sell her was a license he was
19 negotiating for from the potent ial seller when he was terminated from his employment by Plaintiffs.
20 Mr. Block requested that Ms. Martin contact "Mike" to make further inquiry regarding his identity
22 Ms. Martin subsequently spoke with "Mike" and he confirmed to her that he was, in fact,
23 DI/kndant Steinhauer. He thereafter advised Ms. Martin that the reason that he was calling her was
24 so'at Safeway could avoid being "gouged" with respect to this transaction because Plaintiffs always
25 g4ed their clients. This statement was false. and known by Defendant to be false, and had a
26 te~ncy to injure Plaintiffs with respect to their trade or business because the statement imputes
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EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND OSC RE: PRELIMINARY INJUNCTION
would have the seller of the license contact Ms. Martin directly. The potential seller contacted Ms.
2 Martin directly, and Safeway and the seller tentatively have entered into an agreement whereby
3 Safeway has agreed to purchase the liquor license directly from the seller for approximately
4 $180,000.00, or approximately $30,000 less than the amount which Safeway tentatively had agreed
6 Had Defendant Steinhauernot utilized Plaintiffs' confidential infomlation and interfered with
7 Plaintiffs' potential brokering of the sale of this liquor license to Safeway, Plaintifls would have
8 earned approximately $90,000 from the sale. Defendant's wrongful conduct, as set forth above,
9 constituted a breach of his employment contract in that he agreed not "to call on, solicit, take away,
10 or attempt to call on, solicit or take away, either for [Defendant] or for any other person, firm,
12 Defendant's wrongful conduct, as set forth hereinabove, has caused Plaintiffs to suffer
13 damages in the amount of $90,000.00, and unless and until enjoined by Order of this Court,
14 Defendant's conduct shall continue to cause irreparable injury to Plaintiffs, including, but not limited
15 to lost profits and damage to its customer goodwill. Plaintiffs are further informed and believe, and
16 thereon allege, that Defendant intends to continue his course ofwrongful conduct by contacting other
17 of Plaintifts' clients and customers, in retaliation for Plaintifts' lawful termination of Defendant
19 economic advantage by depriving them of the profits they would have earned from successfully
21 Plaintiffs have no adequate remedy at law inasmuch as monetary damages cannot compensate
22 for damage to its customer goodwill and damages for loss of profits may not be quantifiable. Based
uJWl the foregoing, Plaintiffs are entitled to a Temporary Restraining Order, OSC Re Preliminary
24 Tinction, Preliminary Injunction and Permanent Injunction as prayed for herein restraining
25 Dtndant Steinhauer from the following: Communicating with, calling on, soliciting, taking away,
26 or~ltempting to communicate, call on, solicit or take away, either for Defendant, or for any other
27 pe~on, firm, corporation or entity, any of Plaintiffs' clients, customers and employees.
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EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND osc RE: PRELIMINARY INJUNCTION
n.
2 THE COURT HAS THE RIGHT TO STOP THE
UNLAWFUL CONDUCT IN ITS ENTIRETY BY INJUNCTIVE RELIEF
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California Code of Civil Procedure 526 provides, inter alia, as follows:
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An Injunction may be granted in the following cases:
5 I. When it appears by the Complaint that the Plaintiff is entitled to the
relief demanded. and such relief. or any part thereot: consists in restraining the
6 commission or continuance of the act complained of. either for a limited period or
pemetually;
7 *******
3. When it appears, during the litigation, that a party to the action is
8 doing. or threatens or is about to do. or is procuring or suffering to be done, some at
in violations of the rights of another party to the action respecting the subject of the
9 action. and tending to render the judgment ineffectual;
4. When pecunia!)' compensation would not afford adequate relief;
10 5. Where it would be extremely difficult to ascertain the amount of
compensation which would afford adequate reliet; .. , (Emphasis added).
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Furthermore, Code of Civil Procedure 527 provides that an Injunction and/or Temporary
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Restraining Order may be granted at any time before judgment where it appears that great or
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irreparable injury will result before the matter can be heard on notice. Finally, the Employment
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Agreement between Plaintiffs and Defendant also specifically authorizes injunctive relief for
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violations thereof.
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A. Plaintiffs Meet The Initial Two Part Test Justifyine Injunctive Relief
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"[T]rial courts should evaluate two interrelated factors when deciding whetherornotto issue
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a preliminary injunction. The first is the likelihood that the plaintiffwill prevail on the merits at trial.
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The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as
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compared to the harm that the defendant is likely to suffer ifthe preliminary injunction were issued."
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Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 624-625. The facts in the instant
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case cry out to equity to issue the limited restraint Plaintiffs seek.
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~ The facts set forth in the Declaration of Craig Block demonstrate that Plaintiffs are likely to
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pretail on the merits at trial. Defendant Steinhauer can demonstrate no justification for his unlawful
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uS~l)f PlaintilTs' confidential information and intentional interference with prospective economic
ad~ntage. His actions clearly were motivated by malice against his former employers, upon whom
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intended to inflict, and has actually inflicted, substantial monetary injury.
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EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND osc RE' PRELIMINARY INJUNCTiON
Furthennore, Plaintiffs shall suffer great and irreparable damage ifDefendant is not enjoined
2 from continuing to unlawfully solicit Plaintiffs' clients and customers and/or interfere with existing
3 business transactions, as Plaintiffs will lose substantial business and customer goodwill. In contrast,
4 Defendant Steinhauer shall suffer no injury if is he enjoined from communicating with Plaintiffs'
5 clients and customers. Thus, there is more than a reasonable probability that PlaintitTs will prevail
6 on the merits in this action and balancing the equities ofthe respective parties, equity mandates that
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EX PARTE APPLICATION FOR TEMPORARY RESTRAINING QRDERAND osc RE: PRELIMINARY INJUNCTION
V.
2 THE TRO AND PRELIMINARY INJUNCTION SHOULD BE ISSUED WITHOUT THE
REOUIREMENTS OF AN UNDERTAKING
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Case authority is clear that upon issuance ofa Temporary Restraining Order. as opposed to
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a Preliminary Injunction. no undertaking is required by Code of Civil Procedure 529; Wallace vs.
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Miller (1983) 140 Cal.App.3d 562; Allen vs. Pitchess (1973) 36 Cal.App.3d 321.
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Given the Court's inherent equitable power of provisional relief, Plaintiffs respectfully
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request that the limited Temporary Restraining Order sought herein be issued without the
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requirement of an undertaking due to the fact that no haml can result to Defendant Steinhauer in
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enjoining him from contacting PlaintitTs' customers and clients.
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VI.
II
CONCLUSION
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For the foregoing reasons, Plaintiffs request that this Court issue the Temporary Restraining
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Order enjoining Defendant Michael Steinhauer from communicating with, calling on. soliciting,
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taking away, or attempting to communicate, calion. solicit or take away, either for Defendant, or for
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any other person, firm, corporation or entity, any ofPlaintiffs ' clients, customers and employees, and
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issue an and an Order to Show Cause re: Preliminary Injunction with respect thereto.
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Dated: March 29, 2004 Respectfully submitted.
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EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND osc RE, PRELIMINARY INJllNCTION
DECLARATION OF ROBERT P. WARGO
2 L Robert P. Wargo, declare as follows:
3 I. r am an attorney duly licensed to practice law before all of the Courts of the state of
4 California, and am an associate of the Law Offices of Ronald Jason Palmieri, attorney for
5 Plaintiffs herein.
6 2. The facts set forth in this Declaration are true of my own knowledge and if called upon to
9 PM. On said date and time, I personally called Michael Steinhauer at his home telephone,
10 323/850-5414, and left a message on his answering machine infornling him that Plaintiffs
11 would be filing this Ex Parte Application at 8:30 AM, in Department 46 of this Court,
12 located at III North Hill Street, Los Angeles, CA, on Monday, March 29, 2004.
13 r declare the foregoing to be true and correct and under penalty ofperjury under the laws of
14 the State ofCalifomia. Executed on March 25, 2004, at Los Angeles, CA.
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EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND OSC RE: PRELIMINARY INJUNCTION
DECLARATION OF CRAIG BLOCK
2 I, Craig Block, declare as follows:
4 2. The facts set forth in this Declaration are true of my own knowledge and if called upon to
6 3. Plaintiff ABC Escrow, Inc., is a California corporation qualified to transact business in this
9 in this state. with its principal place of business in Pacific Palisades, CA.
10 5. Plaintiffs are related companies engaged in the business of acting as a third party finder and
II providing consulting and escrow services in connection with the sale, purchase and transfer
13 6. On or abollt August 20, 200 L Plaintiffs and Defendant Steinhauer entered into a written
16 conditions set forth in the Agreement, a copy of which is attached hereto as Exhibit "A."
17 7. Paragraph 10.4 of the Employment Agreement states that "during his ... employment and
18 for a period of two (2) years following the discharge, resignation or termination of
19 [Defendant] orthe termination ofth is Agreement, [Defendant] shall not directly or indirectly
20 use any [of Plaintiffs'] Confidential Information to call on, solicit, take away, or attempt to
21 call on, solicit or take away, either for [Defendant] or for any other person, firm, corporation
24 include: (I) the name, address or telephone number of clients or customers; (2) information
25 obtained from customers or clients; (3) costs incurred by the Company in acquiring licenses;
26 (4) fees charged clients or customers for services; and (5) procedures utilized by the
28 9. Paragraph 10.5 of the Employment Agreement states that "no adequate remedy at law may
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EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND OSC RE: PRELIMINARY INJUNCTION
exist for any violation of Sections 10.1-10.4 of this Agreement and that in the case of any
1 breach, a restraining order or injunction may be issued in addition to any other rights or
4 10. Paragraph 11.9 of the Employment Agreement states that "in the event of any litigation
5 between or among the parties hereto respecting or arising out of this Agreement, the
6 prevailing party or parties shall be entitled to recover reasonable attorneys' fees and costs,
9 reorganization.
10 12. As of that date, Defendant Steinhauer knew that Plaintitfs had recently brokered the sale of
II a liquor license to Safeway, one of Plaintilfs' longtime clients, for the sum of $200,000,
12 because Defendant Steinhauer had worked on the transaction during the course of his
14 13. I am infonned and believe, and thereupon allege, that during the course of his employment
15 with Plaintiffs, Defendant Steinhauer learned that Plaintiffs were then in the midst of
16 negotiations with Safeway for the potential sale of another liquor license for the sum of
17 $210,000.00, which Plaintiffs would acquire from a potential seller for $120,000.
18 14. I was infornled by Jan Martin, a vice president of Safeway, who is Plaintiffs' principal
19 contact with the company, that on March 11,2004, Defendant Steinhauer twice telephoned
20 Ms. Martin.
21 15. Ms. Martin informed me that during the first conversation, Steinhauer identitied himselfonly
22 as "Mike" to Ms. Martin and stated to her that he had a liquor license available for sale to
24 Ms. Martin thereafter infornled me that she had been contacted by someone named "Mike"
25 calling from the 323 area code and offering her the liquor license.
26 r suspected that "Mike" was our recently tenuinated employee, Defendant Steinhauer, and
27 that the license he was attempting to sell her was a license he was negotiating for from the
28 potential seller when he was temlinated from his employment by Plaintiffs. I requested that
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EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND OSC RE: PRELIMINARY INJUNCTION
Ms. Martin contact "Mike" to make further inquiry regarding his identity and the potential
seller.
3 18. Ms. Martin infonned me that she subsequently spoke with "Mike" and he confinned to her
4 that he was, in fac.t, Defendant Steinhauer. He thereafter advised Ms. Martin that the reason
5 that he was calling her was so that Safeway could avoid being "gouged" with respect to this
6 transaction because Plaintitfs always gouged their clients. This statement was false, and
7 known by Defendant to be false, and had a tendency to injure Plaintiffs with respect to their
8 trade or business because the statement imputes dishonesty or a lack of ethics to Plaintiffs.
9 19. Steinhauer also stated that he would not be making any money from the transaction and that
10 would have the seller of the license contact Ms. Martin directly.
II 20. Ms. Martin infornled methat the potential seller contacted her directly, and Safeway and the
12 seller tentatively have entered into an agreement whereby Safeway has agreed to purchase
13 the liquor license directly from the seller for approximately $180,000.00, or approximately
14 $30,000 less than the amount which Safeway tentatively had agreed to pay to Plainti ffs for
16 21. Had Defendant Steinhauer not utilized Plaintiffs' confidential infonnation and interfered
17 with Plaintiffs' potential brokering of the sale of this liquor license to Safeway, Plaintiffs
19 22. Defendant's wrongful conduct, as set forth above, constituted a breach of his employment
20 contract in that he agreed not "to call on, solicit, take away, or attempt to call on, solicit or
21 take away, either for [Defendant] or for any other person, t"inn, corporation or entity the
23~, Defendant's wrongful conduct, as set forth hereinabove, has caused Plaintiffs to suffer
24 damages in the amount of$90,OOO.00, and unless and until enjoined by Order ofthis Court,
25 Defendant's conduct shall continue to cause irreparable injury to Plaintiffs, including, but
27 Plaintiffs are further infonned and believe, and thereon allege, that Defendant intends to
28 continue his course of wrongful conduct by contacting other of Plaintiffs' clients and
Page 12
EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND OSC RE: PRELIMINARY INJUNCTION
,03/25/2004 THU 15:09 FAX 3~9 3688 ABC ESCROW \ LLS
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3 economic advantage by depriving them of the profi~ they would have earned from
5 25. Plaintiffs have no adequate remedy at law inaslUUch as monetary damages cannot
6 compensate for damage to its customer goodwill and damages for loss ofprofits may not be
7 quantifiable.
8 26. Based upon the foregoing, Plaintiffs are entitled to a Temporary Restraining Order, ose Re
10 restraining Defendant Steinhauer from the following: Communicating with, calling on,
11 soliciting, taking away, or attempting to communicate, call on, solicit orta!re away, either
12 for Defendant, or for any other pernon, finn, corporation or entity, any ofPlaintiffs' cli~,
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EX PAR're Al'pur.ATION POR TEMPORARY RESTltAlNlNG ORDEilAND OSC RE: PRELIMINARY INJUNCTION
~~~
EXHlBIT"A"
. 03/~1/2004 THU 16:09 FAX _459 3688 ABC ESCROW \ LLS
~002/014
EMPLOYMENT AGREEMENT
,
This Employment Agreement {"Agreement"} is made and entered into on
g-2.0 , 200.1.. by and between ABC Escrow, Inc" Alcohol
EnterPrisesj.;~/ba Alcohol Licensed Properties (the 'Company") and
..M.iJe. ~'N 6~ , an individual ("Employee"), as follows:
1. EMPLOYMENT
1.1 Commencement Date and Title. Beginning B,Ur-WOf '
200..L E/TIQloyee Sha~1 ".~ ~. . '..
. .sAI6=i ~aa. .:s9(VI<.t:'. for the
Company, sUbject to eiermsand conditions of this Agreement and the Company's
policies, rules, regulations and procedures as contained in its Employee Manual1'lnd as
dictated by management. The terms and conditions of this Agreement cannot be
changed, modified or altered. The Company, however, may amend its policies, TtIles,
regUlations, procedures and handbooks from time to time, and at any time, without
notice. Employee hereby accepts the employment and agrees to render and perform all
services loyally, conscientiously and to the best of Employee's ability and experience,
:l
, 'the discharge, termination or resignation of Employee or any other event which ends
t~.
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this Agreement. Employee shall return to the Company all Company property.
. . 0~/1.1/2004 THU 16: 10 F.U 1459 3688 ABC ESCROW \ LLS
~003/014
4.3 Conflicts and Interferences. Employee shall not without the prior written
consent of the Company render services of a business, commercial, or professional
nature to any other person or organization that might create a conflict of interest or
otherwise interfere in any way with Employee's obligations under this Agreement.
SPecifically, while employed with the Company, Employee shall not, directly or
indirectly, whether as partner, employee, creditor, sh~holder, or otherwise, promote,
participate, or engage in any activity or other business competitive with the Company's
business.
'
"l, 5.3 Closina of Company. In the event the Company is closed due to an
,earthquake, flooding, riol, or any other natural or man-made disaster pr unsafe
i
. condition, the Company, in its discretion, will determine whether it will pay to Employee
: . the amount that would have been paid to Employee had Employee worked the closed
I 'day(s), .
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03/11/2004 THU 16:10 FAX ~459 3688 ABC ESCROW \ LLS
@004/014
6. HOLIDAYS
6.1 Paid Holidays. Following the initial three (3)-month probationary period,
if employed with the Company on the following holidays, then Employee shall be paid
for the following holidays:
Memorial Day
Independence Day
Labor Day
Thanksgiving.Oay
Christmas Day
7. VACATION TIME
7.1 Vacation lime Allotted. If employed following one full year on a full-time
basis..Employee shall receive paid vacation time in accordance with the following
schedule:
(a)
~
. -
.........
Second ThroughFjflh Year of Employment. During Employee's
second through fifth year of employment with the Company, Employee shall receive "five
(5) days paid vacation, per calendar year (January 1 to December 31). Five (5) days is
equal to fOrty (40) hours. '
(b) , . After Fjfth Year of Employment. Following the completion of five
(5) years of amployment wi~Jt'le Company, Employee shall receive ten (10) days of
paid vacation per calendar year (January 1 to December 31). Ten (10) days is eqlJal to
eighty (80) hotJrs.
i 8. SICK LEAVE
8.1 Paid Sick leave. If employed following one year of full-time
. i\!employment with the Company. Employee may use, if needed, up to six (6) paid non-
~orking days per calendar year (January 1 to December 31) if unable to work because
3
UJ/IWUU4 ItlU 16: 11 FAll459 3688 ABC ESCROW \ LLS
~005/014
of his or her own illness, the need to care for a sick child, bereavement, or to resolve
personal emergencies.
10. CONFIDENTIALITY
lA
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, 03/1112004 THU 16: 11 FAX .59 3688 ABC ESCROW \ LLS
~006/014
(a) Publish or in any way disclose to any third person or entity the
whole or any part of the Confidential Information;
'" (c) Permit the use of the Confidential Information by any employer
other than the Company, or by any friend, relative, employee, agent, independent
contractor or affiliate of Employee for any purpose contrary to the tenns of this
Agreement; or
~",
" ;Company's ConfidentiallnformatJon to compete with the Company In the counties of
. Los Angeles, San Bernardino, Ventura, Kern, Orange, San Diego, Riverside, San
5
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U3I1lfZUUq m 16: 12 FAX 459 3688 ABC ESCROW \ LLS
~007 /014
11.2 Waivers. A w.ai~r by !'loy party of any of the terms and conditions of
this Agreement in anyone instance shall not be deemed or construed to be !'l waiver of
such term or condition for the future, or of any subsequent breach thereof, nor shall it be
.
deemed a waiver of performance of any other obligation hereunder.
i
negotiation and preparation of this Agreement. The parties each agree that they enter
into this Agreement freely, without coercion, and relying on each one's own jUdgment,
. not on any representations or promises made by the other party, except those
contained herein..
.!: 11.5 Governing Law.. This Agreement shall be govemecl by and construed in
1l. accordance with the laws of the State of California, and the parties hereby submit
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031ll/Z004 THU 16: 12 FAX 1459 3688 ABC ESCROW \ LLS
~008/014
themselves to the courts of the County of Los Angeles for the purpose of enforcing the
Agreement. .
11.7 Section and Subsection Headings. The titles of the sections of this
Agreement are for convenience only and shall not in any Wfl)/ affect the interpretation of
any provision or condition of this Agreement.
11.8 Thircj Psrties. Except as may be elCPressty set forth herein, the parties
hereto do not intend to confer any rights or remedies upon any person other than the
parties hereto.
11.9 Legal Action. In the event of any litigation between or among the parties
hereto respecting or arising out of this Agreement, the prevailing party or parties shall
be entitled to recover reasonable attorneys' fees and costs, whether or not such
litigation proceeds to final judgment or determination.
Notwithstanding the above paragraph, Employee does not waive his or her
>Ii, right to litigate claims for workers' compens'ation, unemployment insurance and any
~l wage and hour matter within the Jurisdiction of the California Labor Commissioner.
",' Employee also reserves the right to litigate claims under Title VII of the Civil Righls Act
~: of 1964 or the Fair Employment and Housing ht (FEHA) to the extent that the right to
l~litigate such claims is not wBivable under applicable law.
~ If Employee and the Company are unable to agree on a neutral arbitrator
'~.knOWledgeable in employment issues, the Company will obtain a list of arbitrators
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U3/1l12U04 THlI16:13 FAX _459 3688 ABC ESCROW \ LLS
~009/014
The arbitrator shall have jurisdiction over pre-hearing discovery matters. The
arbitrator shall allow an adequate amount of.discovery reasonably necessary to
arbitrate the daims at issue.
Employee and the Company agree that arbitration shall be the exdusive forum
for resolving all disputes arising out of or involving fh;s Agreement and Employee's
employment with the Company or the termination of that employment (with the
exception of claims for workers' compensation, unemployment insurance and any wage
and hour matter within the jurisdiction of the Califomia Labor Commissioner); provided,
however, that either party may file a request with a court of competent'jurisdlction for
equitable relief, including but,not limited to injunctive relief, pending resolution of any
dispute through the arbi1ration procedure set forth herein. If lhe Company does not
receive a written request for a-bitralion from Employee within one (1) year from the date
of Employee's termination, emJ:liQyee agrees that he or she will have waived any right to
raise any claim, in any forum, arising out of the breach or alleged breach of any
provision in this Agreement or termination of Employee's employment.
~ Employee and the Company hereby agree that nothing contained herein shall
ipredude either party from obtaining injunctive Qr other equitable relief to restrain
~wiolations of this agreement or applicable law or to pres!!IVe the status quo pending the
, arbitration of any disputes subject to this section. Nothing contained herein shalt be
reemed to alter or modify the Company's policy of at-will employment. Employment
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~ 010/014
With the Company is at-will and can be tenninated by either Employee or the Company
at any time, with or without cause or notice.
Employee and the Company hereby agree that this arbitration agreement shall
survive the termination elf Employee's employment and that this Agreement is a contract
binding on Employee and the Company.
13. ACKNOWLEDGEMENT
Employer.
i,'
Employee:
Date: 3: iu Zf!o (
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03/11/2004 THU 16:14 FAX ~59 3688 ABC ESCROW \ LLS
~ 012/014
5. COMPENSATION (per the original employee agreement dated august 20, 200])
5. I Salary. As compensation for his or her services, Employee shall receive (an
annual salary of $34,000.00, payable bi-weekly during the period of employment.
Employee understands and accepts that there will be no other increase in the salary
compensation through the telID of employment.
".
ACKNOWLEDGEMENT
By signing this agreement, employee acknowledges that he /she has read, understands
and agrees to be bound by the terms of this Addendum! Agreement, including
specifically but not limited to, the At-Will Employment, Confidentiality, and the
Agreement to Arbitrate provisions. Employee also acknowledges that he or she has
received a c this Addendum! Agreement.