Response to Motion Berenson

by | Dec 7, 2021 | Samples legal papers

Plaintiff’s Response to Defendant’s Motion For Leave to Amend Answer and Counterclaim and Plaintiff’s Cross Motion For Leave to Amend Complaint.

 

Introduction & Counter Statement of Facts

  1. During the first week of April 2021, Plaintiff Charlie Ezuma (“Ezuma”), the owner of XTS Cloud LLC (“XTS”), discovered that Defendant Jason Berenson (“Berenson”) had been, among other things, embezzling money from the XTS Bank of America business checking account. Berenson is not and has never been an authorized signer on the account. 
  2. Berenson has provided no evidence that he is an owner of XTS. His recent February 20, 2021 bankruptcy filings show that he did not disclose any ownership interest in XTS or any other business entity in his financial disclosure before the San Francisco bankruptcy court. 
  3. On April 9, 2021, Ezuma filed a civil complaint against Berenson for breach of fiduciary duty relating to Berenson’s embezzlement, in addition to his theft of XTS company assets, which were moved without authorization to an uninsured, non-commercially zoned, storage unit at Berenson’s personal residence (evidence). 
  4. On around April 14, 2021, Ezuma filed a criminal complaint against Berenson with Las Vegas Metropolitan Police Department (“LVMPD”) relating to the embezzlement of funds from the XTS Bank of America business checking account. Ezuma provided LVMPD with copies of checks that Berenson had made out to himself, signed, and cashed into his personal checking account (Exhibit A). 
  5. Immediately after being served with the civil complaint, Berenson continued to make unauthorized charges on the XTS Bank of America business credit card (evidence), which he had stolen from the XTS office, located at 5550 Painted Mirage Rd, Las Vegas, 89149. Evidence of those unauthorized transactions were provided to LVMPD on April 27, 2021 at 12.53pm via. Email (evidence)
  6. Berenson is a full-time employee and lead network administrator of United Layer LLC (“UL”), a web hosting company based out of San Francisco (Exhibit). 
  7. In November of 2020 Berenson, acting as an agent of UL, offered to sell Ezuma web hosting services in UL’s San Francisco data center. Ezuma agreed, and paid Berenson $1,800 to host a virtual machine in UL’s data center, in addition to managing Ezuma’s Microsoft 365 account for his other business. The virtual machine was to be used to store Ezuma’s sensitive 2017 – 2018 client IRS files. 
  8. Berenson insisted that Ezuma pay with cash, since Berenson was going through a chapter 7 bankruptcy proceeding, and he did not want to complicate matters for his employer UL. 
  9. Ezuma paid Berenson $1,800 cash, and a contractual relationship between Ezuma and UL was formed. The contractual relationship was formed between Ezuma and UL, and not Berenson, as Berenson was merely an employee acting on behalf of UL.  
  10. Ezuma’s virtual machine was hosted at UL’s San Francisco data center, located at 200 Paul Ave Suite 106, San Francisco, CA 94124. 
  11. The virtual machine had an IP address of: 207.7.131.85 
  12. The IP address 207.7.131.85 is registered to United Layer LLC (Evidence). 
  13. Berenson and UL maintained Ezuma’s virtual machine for several months (evidence).
  14. On April 15, 2021, Berenson or UL revoked access to Ezuma’s virtual machine without explanation or notice, which contained sensitive client IRS files. This was in violation of the service agreement between Ezuma and UL. 
  15. In a telephone call on April 15, 2021, Berenson told Ezuma that if he did not drop the lawsuit against Berenson, then Berenson would not give Ezuma back his IRS client files, the virtual machine, or domain names belonging to Ezuma’s accounting practice.  
  16. In a telephone call on April 15th, 2021, Berenson informed Ezuma that if Ezuma did not drop the criminal complaint against Berenson, then Berenson would sell Ezuma’s clients’ social security numbers, bank account numbers, and IRS tax files on the internet. 
  17. On April 19, 2021 at 1.03pm PST, Ezuma sent an email to Berenson’s attorney’s, requesting that Berenson return Ezuma’s IRS client files (Evidence). The request was ignored by Berenson and his attorneys. 
  18. On April 30, 2021 at 9.42am PST, Ezuma sent an email to UL kindly requesting that the stolen virtual machine, IRS client files, and other stolen IT assets be returned (Evidence). This is the only communication between Ezuma and UL subsequent to the filing of the original Complaint. 
  19. On April 30, 2021 at 3.10pm PST, Ezuma received an email from Berenson’s attorney, providing the administrative passwords to the stolen Microsoft Office 365 accounts that were being withheld by Berenson and UL. In the same email, Berenson’s attorney Kevin Hejmanowski stated that “The domains have not been transferred anywhere and Jason can transfer them to you if you would like” (Evidence). This was in reference to Berenson and UL still being in possession of Ezuma’s IT assets, and their desire to return said assets. 
  20. In a second email, on April 30, 2021 at 3.11pm PST, Berenson’s attorney, Kevin Hejmanowski, stated that “Additionally, Jason is in the process of backing up the VM onto a USB drive and that will be mailed to you” (Evidence). This was in reference to Berenson and UL still being in possession of Ezuma’s virtual machine, and IRS client files, and their desire to return said assets. 
  21. The domain names and virtual machine data that Mr. Berenson’s attorney stated would be mailed back to Ezuma, was never returned. As of the date of this filing, Berenson and UL have still not returned Ezuma’s IRS client files, virtual machine, and two domain names belonging to Ezuma’s accounting practice.  
  22. On May 3, 2021 at 4.07pm, Ezuma received an email from Berenson’s attorney, Leah Martin, stating that Berenson would return Ezuma’s stolen IRS files, virtual machine, domains, and administrative passwords if Ezuma agreed to drop the lawsuit and criminal complaint against Berenson (Exhibit).
  23. In the same email on May 3, 2021 at 4.07pm, Berenson’s attorney acknowledged that, in addition to being in possession of IT assets stolen from Ezuma’s accounting practice, that Berenson is indeed in possession of assets that had been stolen from XTS (Exhibit).
  24. To date, neither Berenson, UL, or his attorney’s have provided any explanation for the continued withholding of Ezuma’s IT assets, or the XTS assets, beyond using them as a tool for leverage in negotiating a settlement. 
  25. Berenson has acknowledged that he is keeping XTS’s company assets in a residential storage facility at his personal residence. The assets are not covered by insurance since they are not being properly stored in a commercial facility. Berenson’s actions show a reckless disregard and demonstrate breach of fiduciary duty.
  26. On the evening of April 10, 2021, Berenson appeared at Ezuma’s personal residence intoxicated and made threats against Ezuma, stating that if Ezuma did not drop the lawsuit, then he would ‘have serious problems’. Berenson waited outside Ezuma’s door for over 15 minutes making threats and being generally belligerent and unruly. Berenson also claimed that he only took the XTS money and assets because he has over $50,000 in IRS tax debts that were not discharged in bankruptcy, and that if Ezuma was his ‘real friend’ he would help him pay it off. This was witnessed by two of Ezuma’s guests. 
  27.  Since being served with the initial Complaint, Berenson has made multiple telephone calls to members of Ezuma’s family, making threats of violence against Ezuma, and demanding that Ezuma withdraw his valid criminal and civil complaints. 
  28. On April 12, 2021, two days after being served with Ezuma’s Complaint, Berenson deleted evidence relating to this case, including all XTS emails, company files, and financial records (Exhibit). Berenson did this to conceal his illegal activities and to destroy evidence. 
  29. This is not the first time that Berenson has perpetrated fraud against Ezuma. On October 20, 2020, Berenson stated in a sworn affidavit, that on or around April 16, 2020, Berenson stole Ezuma’s identity, including drivers license copy, and social security number, and used it to obtain a lease for equipment from Geneva Capital LLC, a leasing company located in Douglas County Minnesota. In the affidavit, Berenson admitted to forging Ezuma’s signature in order to obtain approval for a commercial lease application (Exhibit). 
  30. In the abovementioned case, Berenson was found guilty and ordered to pay an almost $20,000 civil judgement to Geneva Capital LLC (Exhibit) including replevin for the stolen machine that Berenson initially refused to return to Geneva Capital. 
  31. The case against Berenson, which was initiated by Geneva Capital LLC, in 2020, is almost identical to this current case, whereby; Berenson has attempted to illegally withhold business assets that do not belong to him. There is a clear pattern of behavior here. 
  32. After the Plaintiff in the aforementioned case, Geneva Capital LLC, discovered Berenson’s fraud, they dismissed their complaint against Ezuma with prejudice and apologized from wrongfully brining suit against Ezuma (Evidence).
  33. Berenson has shown a systematic pattern of malicious behavior against Ezuma, which includes fraud, identity theft, theft of personal assets, theft of business assets, threats, and intimidation. 
  34. In Berenson’s Answer to Complaint (reference), he claims that he is indeed a part owner of XTS since he formed the LLC with Ezuma in May of 2017. However, in the financial disclosure of Berenson’s recent chapter 7 bankruptcy proceedings during November 2020 – February 2021, (Exhibit), Berenson failed to disclose to the bankruptcy court that he had any financial interest in XTS or any other business interests. Berenson’s concealment of assets from the San Francisco bankruptcy court further demonstrates Berenson’s willingness to lie under oath, and to provide false and misleading statements to the court when it suits him. 
  35. In prior court proceedings during 2020, Berenson claimed that he was a resident of Nevada. In Berenson’s answer to Ezuma’s Complaint, Berenson once again claimed that he was a resident of Nevada. In Berenson’s recent February 20, 2021 chapter 7 bankruptcy filing, which took place in San Francisco, Berenson claimed he was a resident of California in order to take advantage of San Francisco’s higher income limits, so that he could more easily obtain a chapter 7 discharge. This again shows Berenson’s willingness to lie under oath and commit fraud when it suits him, in addition to venue shopping.
  36. In Berenson’s Answer to Ezuma’s Complaint, Berenson denies using a stolen XTS check book to write and cash checks to himself. Ezuma has shown through evidence (Exhibit) that Berenson did indeed write and cash checks to himself using a stolen XTS check book, and that both the civil and criminal complaints are warranted. 
  37. Ezuma has also shown that Berenson continued to make personal charges using the XTS business credit card after he was served with the initial Complaint (evidence).
  38. Any and all statements made by Ezuma regarding Berenson, are accurate and based on admissible evidence. 

 

Legal Argument

(Provide legal argument for denying the motion to amend answer. Possible reasons include, the motion was filed in bad faith, and it is futile due to the overwhelming evidence against Berenson. Cite case law). Defendant has failed to substantiate any of the allegations made in their motion or provide any evidence whatsoever beyond Berenson’s affidavit. Bernson has also shown a pattern of perjury, and lying in court filings, which Ezuma has substantiated with evidence. Berenson has failed to show that any statements made by Ezuma were false, or that any damages have been incurred. All statements by Ezuma have been substantiated with tangible evidence. Ezuma has a contractual relationship with United Layer LLC and is entitled to communicate with United Layer in regard to services which were purchased by Ezuma. Ezuma denies making any threats. Berenson has failed to demonstrate how Ezuma’s actions constitute harassment or provide any evidence thereof. 

 

Cross Motion For Leave to Amend Complaint

Also, please file cross motion for leave to amend the original complaint. Please add to the original complaint, replevin, or Nevada equivalent (return of Ezuma’s virtual machine, domain names, XTS cloud assets, and XTS cloud credit cards or check books in Berenson’s possession).

 

Additionally, please add to the cross motion an amendment to enjoin a new party, United Layer, LLC as a defendant. 

 

Additionally, please add to the cross motion an amendment for a temporary restraining order, preventing Berenson from accessing XTS Cloud’s office location, Ezuma’s office location, Ezuma’s personal residence, or making contact with Ezuma, his family or friends. 

 

Thanks!

 

 

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