Complaint – Charlie Orlando Ezuma v Jason Berenson

by | Dec 5, 2021 | Samples legal papers

EIGHTH JUDICIAL DISTRICT COURT

IN AND FOR CLARK COUNTY, STATE OF NEVADA

 

CHARLIE ORLANDO EZUMA     §

Plaintiff,     §

  1.     § Case No. A-21-832654-C Dept. No. 29

JASON BERENSON; and UNITED     §

LAYER, LLC     §

Defendant.     §

 

PLAINTIFF’S AMENDED COMPLAINT

NOW COMES Charlie Orlando Ezuma, Plaintiff, complaining of Defendants, Jason Berenson and United Layer, LLC, and for cause would show this Honorable Court as follows:

  • PARTIES
  1. Plaintiff is a male adult of sound mind and a resident of 9745 Grand Teton Dr. Unit 2104, Las Vegas, NV 89166-1007.
  2. Defendant Jason Berenson is a male adult of sound mind and a resident of 7350 W Centennial Pkwy Unit 3091, Las Vegas, NV 89131-1683.
  3. Defendant United Layer, LLC is a company doing the business of web hosting and registered in Insert Address.

  • 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).

  1. 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).
  2. 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.
  3. 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.
  4. 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.
  5. Ezuma’s virtual machine was hosted at UL’s San Francisco data center, located at 200 Paul Ave Suite 106, San Francisco, CA 94124.
  6. The virtual machine had an IP address of: 207.7.131.85
  7. The IP address 207.7.131.85 is registered to United Layer LLC (Evidence).
  8. Berenson and UL maintained Ezuma’s virtual machine for several months (evidence).
  9. 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.

  1. 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.
  2. In a telephone call on April 15 th , 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. The domain names and virtual machine data that Mr. Berenson’s attorney stated would be mailed back to Ezuma were 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.
  8. 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).
  9. 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).
  10. To date, neither Berenson, UL, or his attorneys 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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 driver’s 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).
  6. 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.
  7. 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.
  8. After the Plaintiff in the aforementioned case, Geneva Capital LLC, discovered Berenson’s fraud, they dismissed their complaint against Ezuma with prejudice and apologized for wrongfully bringing the suit against Ezuma (Evidence).
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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).

  • BREACH OF FIDUCIARY DUTY
  1. Plaintiff incorporates the facts in Paragraph 4-40 of this Complaint.
  2. The burden of proof lies on Plaintiff to prove breach of fiduciary duty by Defendant Berenson.
  3. The elements of breach of fiduciary duty were outlined in Klein v. Freedom Strategic Partners, LLC, 595 F. Supp. 2d 1152, 1162 (D. Nev. 2009) as being existence of a fiduciary duty, breach of the duty, and consequential damage as a result of the breach.
  4. By being a member of XTS Cloud, LLC, Defendant Berenson owed fiduciary duty to the Company.
  5. A fiduciary relationship is deemed to exist when one party is bound to act for the benefit of the other party. Such a relationship imposes a duty of utmost good faith. Hoopes v. Hammargen, 725 P. 2d 238 (Nev. 1986).
  6. As a member of XTS Cloud, LLC, Defendant Berenson was bound to act for the benefit of XTS Cloud, LLC and act in good faith in the course of business.
  7. Defendant Berenson breached fiduciary duty by poaching Techcomm Solutions from XTS Cloud, LLC and working for Techcomm while pocketing all the revenue. 
  8. Defendant Berenson’s acts were not for the benefit of XTS Cloud, LLC and in total breach of Defendant’s duty of utmost good faith.
  9. As a result of Defendant Berenson’s breach of fiduciary duty, XTS Cloud, LLC makes a loss of $1,500 per month, and will continue to do so until the company’s lease expires in December. 
  10. Plaintiff has been forced to pay the lease for XTS Cloud, LLC using his own money until December.

  • SELF-DEALING
  1. Plaintiff incorporates the facts in Paragraph 4-40 of this Complaint.
  2. Self-dealing is engagement in a transaction that is intended to primarily benefit one’s self or the narrow interests of a few rather than those to whom one owes a duty by virtue of one’s position.
  3. 26 CFR § 53.4941(d)-2(e) provides that the payment of compensation (or payment or reimbursement of expenses) by a private foundation to a disqualified person shall constitute an act of self-dealing.
  4. Defendant Berenson was a disqualified person because he was a member of XTS Cloud, LLC. He should have conducted business in a manner that would benefit the interests of XTS Cloud, LLC, not his own.
  5. By poaching Techcomm Solutions from XTS Cloud and working for Techcomm on his own, LLC, Defendant Berenson engaged in a transaction that was intended to primarily benefit him instead of XTS Cloud, LLC to which he is a member and owes fiduciary duty.
  6. As a result of Defendant’s acts of self-dealing, XTS Cloud, LLC makes a loss of $1,500 per month, and will continue to do so until the company’s lease expires in December. 
  7. Plaintiff has been forced to pay the lease for XTS Cloud, LLC using his own money until December.

  • CONVERSION
  1. Plaintiff incorporates the facts in Paragraph 4-40 of this Complaint.
  2. The court in Wantz v. Redfield, 74 Nev. 196, 198, 326 P.2d 413, 414 (1958), defined conversion as “a distinct act of dominion wrongfully exerted over another’s personal property in denial of, or inconsistent with his title or rights therein or in derogation, exclusion, or defiance of such title of rights.”
  3. The definition in Wantz establishes the following elements of conversion: the plaintiff owned or had possession of the property or entitlement to possession, the defendant unlawfully and without authorization assumed and exercised dominion or control over the property to the exclusion of plaintiff’s rights as an owner, the plaintiff demanded return of the property, and defendant refused to return the property.
  4. On April 15, 2021, Berenson or UL revoked access to Ezuma’s virtual machine without

explanation or notice, which contained sensitive client IRS files.

  1. The terms of the contract were that Plaintiff would still have unrestricted access to his virtual machine. By denying Plaintiff access to his virtual machine, Defendants assumed and exercised dominion and control over Plaintiff’s virtual machine to the exclusion of Plaintiff’s rights as the owner of the virtual machine.
  2. 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.
  3. 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).
  4. 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.
  5. The domain names and virtual machine data that Mr. Berenson’s attorney stated would be mailed back to Ezuma were 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.
  6. 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).
  7. 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).
  8. To date, neither Berenson, UL, or his attorneys 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.

  1. Plaintiff demanded the return of full, unrestricted access to his virtual machine by Defendants but Defendants have shown no intent of doing so. Plaintiff has full ownership rights of the virtual machine. Defendants ought to return it to Plaintiff unconditionally.

  • APPLICATION FOR TEMPORARY RESTRAINING ORDER
  1. Plaintiff incorporates the facts in Paragraph 4-40 of this Complaint.
  2. 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.
  3. 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.
  4. Plaintiff seeks a temporary restraining order prohibiting Defendant Berenson from harassing Plaintiff, making threats against Plaintiff, stealing Plaintiff’s property, interfering with Plaintiff’s business (Centennial CPA) and barring Defendant Berenson from visiting Plaintiff’s home, office, or interfering with Plaintiff’s clients.
  5. It is probable that Plaintiff will prevail against Defendant because Defendant’s actions constitute trespass, invasion of privacy and are detrimental to Plaintiff’s welfare and mental health.
  6. If Plaintiff is not granted the temporary restraining order, harm is imminent because Defendant will continue to threaten Plaintiff, cause trouble at Plaintiff’s home and harass Plaintiff’s clients.

  • REQUEST FOR TEMPORARY INJUNCTION
  1. Plaintiff requests this Honorable Court to set his Application for Temporary Restraining Order for hearing, and after hearing the application, issue a temporary injunction against Defendant Berenson.

  • REQUEST FOR PERMANENT INJUNCTION
  1. Plaintiff requests this Honorable Court to set his Application for Temporary Restraining Order and Request for Temporary Injunction for hearing for a full trial on the issues in Plaintiff’s Amended Complaint, and after the hearing, issue a permanent injunction against Defendant Berenson.

  • REQUEST FOR REPLEVIN
  1. Nevada Revised Statutes § 17.120(1) states as follows: “In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession or the value thereof, in case a delivery cannot be had, and damages for the detention or the value of the use thereof. If the property has been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property or the value thereof, in case a return cannot be had, and damages for taking and withholding the same or the value of the use thereof.”
  2. Plaintiff has proved the conversion of his personal property by Defendants.
  3. Plaintiff hereby requests this Court to grant him an Order of Replevin for return of the following items: 

  • PRAYER FOR RELIEF

REASONS WHEREFORE, Plaintiff respectfully requests this Honorable Court to grant him the following reliefs:

  1. Award Plaintiff $36,000 in damages for revenue lost by XTS Cloud, LLC;
  2. Award Plaintiff damages for breach of fiduciary duty, self-dealing and conversion;
  3. Award Plaintiff punitive damages;
  4. Award Plaintiff pre and post judgment interests, costs of this suit and attorney fees as allowed by law;
  5. Grant Plaintiff a Temporary Restraining Order against Defendant Berenson;
  6. Grant Plaintiff a Temporary Injunction against Defendant Berenson;
  7. Grant Plaintiff a Permanent Injunction against Defendant Berenson;
  8. Grant Plaintiff an Order of Replevin against Defendants for return of the following items:
  9. Award Plaintiff such equitable relief as may be appropriate under the circumstances; and
  10. Award Plaintiff such further relief as this Honorable Court deems necessary and proper.

 

Dated:

 

Respectfully Submitted,

______________________________

Charlie Orlando Ezuma

9745 Grand Teton Dr. Unit 2104

Las Vegas, NV 89166-1007

Insert Phone Number

Insert Email

VERIFICATION

I, Charlie Orlando Ezuma, being duly sworn depose and say that I am the Plaintiff in the above entitled action, that I have read the foregoing Complaint and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.

_________________________________

(Sign in the presence of a Notary Public)

Sworn to and subscribed before me this the _____ day of ____________________, 2021.

______________________________

Notary Public

________________________________________

(Printed name of Notary Public)

My Commission Expires: ____________________

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was sent on the (Date) day of (Month) (Year) by regular U.S. mail, by facsimile, or certified mail, return receipt requested, to the following parties or attorneys of record:

Leah Martin, Esq., Attorney at Law

Nevada Bar No. 7982

Kevin Hejmanowski, Esq.

Nevada Bar No. 10612

LEAH MARTIN LAW

3100 W Sahara Ave. #202

Las Vegas, Nevada 89102

Telephone: (702) 420-2733

Facsimile: (702) 330-3235

lmartin@leahmartinlv.com

khejmanowski@leahmartinlv.com

 

Dated:

 

Respectfully Submitted,

______________________________

Charlie O. Ezuma

9745 Grand Teton Drive, 2104

Las Vegas, Nevada 89166

Insert Phone Number

Insert Email

At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, we will be able to prepare the legal document within the shortest time possible.