Omni Health Inc (OMHE)

[mattsinvestmentclub]

the jist of the case "detailed from court records directly"
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA

CASE NO.: 2019-013828-CA-01

GEORGIA NOTES 18 LLC, a Florida Limited
Liability Company,
Plaintiff,
vs.
MALECON PHARMACY, INC., a Florida
Profit Corporation; MIAMI EXECUTIVE
PHARMACY INC., a Florida Profit Corporation;
CELEBRITY BRANDS, LLC a/k/a/
CELEBRIRY BRANDS, LLC, a Florida Limited
Liability Company; OMNI HEALTH, INC.,
a Foreign Corporation; ANDREY SOLOVIEV,
an individual; STAR EQUITIES, LLC, a Florida Limited
Liability Company; and OLEG FIRER, an individual;
Defendants.
____________________________________/
PLAINTIFF’S RESPONSE AND MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANTS’, MALECON’S, MEP’S, AND CELEBRITY’S, MOTION TO DISMISS

SECOND AMENDED COMPLAINT

Plaintiff, GEORGIA NOTES 18, LLC, (“GEORGIA NOTES”), by and through
undersigned counsel and pursuant to Fla. R. Civ. P. 1.140, as well as the additional legal authorities
cited herein, respectfully files this Response, as further styled above, and in support so states:

RELIEF REQUESTED

1. GEORGIA NOTES respectfully requests that the Court enter an Order which
denies Defendants’ motion to dismiss for failure to state a cause of action (“MTD”) or in the
alternative, orders that GEORGIA NOTES has leave to amend its pleading.
STANDARD OF REVIEW

2. The purpose of a motion to dismiss is to test the legal sufficiency of the complaint,
not to determine factual issues. See Rolle v. Cold Stone Creamery, Inc., 212 So. 3d 1073 (Fla. 3d

Filing # 120277261 E-Filed 01/26/2021 04:10:01 PM

Georgia Notes 18, LLC v. Malecon Pharmacy, Inc., et al.
Case No.: 2019-013828-CA-01
Plaintiff’s Response to Defendants’
MALECON’S, MEP’S, and CELEBRITY’s,
Motion To Dismiss 2d Amended Complaint
Page 2 of 9

DCA 2017). All allegations must be taken as true and any reasonable inferences drawn therefrom
must be construed in favor of the non-moving party, (GEORGIA NOTES). Id. at 1076. Unlike a
motion for summary judgment, when ruling on a motion to dismiss, the Court may not go beyond
the four corners of the complaint, and any exhibits attached thereto, in its consideration of the legal
sufficiency of the pleading. A motion to dismiss cannot be based upon an affirmative defense
unless the defense appears upon the face of the pleading. Id. at 1076; Pacific Ins. Co., Lt. v.
Botelho, 891 So. 2d 587 (Fla. D DCA 2004).

THE SECOND AMENDED COMPLAINT (“SAC”)

3. GEORGIA NOTES sues the defendants seeking to recover all sums due and
owing, including interest and attorney’s fees in regard to two loans that GEORGIA NOTES
delivered to the subject defendants as evidenced by the two loan agreements attached to the Second
Amended Complaint.
4. In particular, paragraphs 1-26 of the SAC provide the following general allegations
setting forth the background facts, all of which must be taken as true:
1. This is a lawsuit for damages, which exceeds Thirty Thousand Dollars
($30,000.00), exclusive of interest, attorneys’ fees and costs and, therefore,
the cause of action is within the subject matter jurisdiction of this Court.
2. At all times material, GEORGIA NOTES was a Florida Limited Liability
Company, with a principal place of business located at 17555 Collins Ave.,
#3702, Sunny Isles Beach, FL 33160.
3. At all times material, MALECON was a Florida Profit Corporation with a
principal place of business located at 5966 W. 16th Avenue, Hialeah, FL
33012.
4. At all times material, SOLOVIEV was the CEO of Malecon.
5. At all times material, MEP was a Florida Profit Corporation with a principal
place of business located at 8950 SW 74 CT, 101, Miami, FL 33156.
6. At all times material, SOLOVIEV was the President of MEP.
7. At all times material, CELEBRITY was a foreign corporation.

Georgia Notes 18, LLC v. Malecon Pharmacy, Inc., et al.
Case No.: 2019-013828-CA-01
Plaintiff’s Response to Defendants’
MALECON’S, MEP’S, and CELEBRITY’s,
Motion To Dismiss 2d Amended Complaint
Page 3 of 9

8. At all times material, OMNI was a Foreign Corporation with a principal
place of business located at 5966 W 16th Avenue, Hialeah, FL 33012.
9. At all times material, SOLOVIEV was acting on behalf of OMNI.
10. At all times material, STAR has a principal place of business located at 3265
NE 167 Street, North Miami Beach, FL 33160.
11. At all times material, OLEG FIRER was the Manager of STAR.
12. Venue is proper in Miami-Dade County, Florida because all the acts or
omissions which give rise to this litigation occurred in Miami-Dade County,
Florida.
13. On June 24, 2016, GEORGIA NOTES entered into a Loan and Security
Agreement with MALECON, whereby GEORGIA NOTES agreed to loan
MALECON the principal sum of $500,000.00. The Agreement is attached
hereto as Exhibit “A” (hereinafter referred to as the “First Loan
Agreement”).
14. At all times material, MALECON materially breached the First Loan
Agreement by failing to repay GEORGIA NOTES the principal loan
amount of $500,000.00 and interest pursuant to the terms of the First Loan
Agreement.
15. On September 20, 2016, GEORGIA NOTES entered into a second Loan
and Security Agreement with MALECON, MEP, and CELEBRITY,
whereby GEORGIA NOTES agreed to loan MALECON, MEP and
CELEBRITY collectively the principal sum of $500,000.00 (hereinafter
referred to as the “Second Loan Agreement”). An unsigned copy of the
entire Second Loan Agreement is attached hereto as Exhibit “B”. A signed
copy of a portion of the Second Loan Agreement is attached hereto as
Exhibit B-1. Upon information and belief, Defendants have a complete copy
of the signed Second Loan Agreement in their possession.
16. At all times material, MALECON, MEP, and CELEBRITY materially
breached the Second Loan Agreement by failing to repay GEORGIA
NOTES the principal loan amount of $500,000.00 and interest pursuant to
the terms of the Second Loan Agreement.
17. At all times material, all notices and/or other communications from
MALECON, MEP and CELEBRITY required and/or permitted under the
First and Second Loan Agreements were to be delivered to FIRER.
18. At all times material, GEORGIA NOTES, FIRER, and STAR share a
relationship whereby GEORGIA NOTES reposes trust and confidence in
FIRER and STAR to facilitate transactions on GEORGIA NOTES’s behalf.
19. At all times material, FIRER and STAR, undertook such trust and assumed
a duty to advise, counsel and protect GEORGIA NOTES.
20. At all times material, FIRER and STAR, breached their duties to GEORGIA
NOTES by withholding monies and failing to disburse the entire loan

Georgia Notes 18, LLC v. Malecon Pharmacy, Inc., et al.
Case No.: 2019-013828-CA-01
Plaintiff’s Response to Defendants’
MALECON’S, MEP’S, and CELEBRITY’s,
Motion To Dismiss 2d Amended Complaint
Page 4 of 9

amounts to MALECON, MEP, and CELEBRITY pursuant to the First and
Second Loan Agreements.
21. At all times material, FIRER and STAR’s breach caused MALECON, MEP
and CELEBRITY to be unable to repay the debt owed, and as such,
GEORGIA NOTES did not receive the debt owed pursuant to the First and
Second Loan Agreements.
22. At all times material, FIRER and STAR misrepresented to MALECON and
OMNI that GEORGIA NOTES would sign and did in fact sign the Debt
Conversion Agreement attached hereto as Exhibit “C”.
23. At all times material, FIRER and STAR, knew that GEORGIA NOTES
would not sign the Debt Conversion Agreement and that Anzheliqua Zalkin
did not in fact sign the Debt Conversion Agreement.
24. At all times material, FIRER and STAR intended to induce MALECON and
OMNI to rely and act on the terms of the Debt Conversion Agreement.
25. Upon information and belief, MALECON and OMNI, relied on the Debt
Conversion Agreement to GEORGIA NOTES’s detriment as GEORGIA
NOTES did not receive the debt owed.
26. All conditions precedent to the filing of this lawsuit have been performed,
have been waived, or are otherwise excused.
See SAC

5. Based upon the foregoing general allegations, in Counts I and II, respectively,
GEORGIA NOTES sues MALECON PHARMACY, INC., (“MALECON”), for breach of the first
and second loan agreement in Counts I and II, respectively; MIAMI EXECUTIVE PHARMACY,
INC., (“MEP”), for breach of the second loan agreement in Count III; and CELEBRITY for breach
of the second loan agreement in Count IV. GEORGIA NOTES also brings alternative claims
against these defendants in respective counts, (Counts V, VI, VII, and VIII), for unjust enrichment.
See SAC. The remainder of the SAC alleges other claims against the other defendants. See SAC.
THE MTD BY DEFENDANTS MALECON, MEP, AND CELEBRITY
6. In particular, the defendants state: “Significantly, the allegations underpinning
Counts I-VIII are internally inconsistent rendering them a nullity and the Second Amended
Complaint should be dismissed with prejudice.” See MTD, ¶8.

Georgia Notes 18, LLC v. Malecon Pharmacy, Inc., et al.
Case No.: 2019-013828-CA-01
Plaintiff’s Response to Defendants’
MALECON’S, MEP’S, and CELEBRITY’s,
Motion To Dismiss 2d Amended Complaint
Page 5 of 9

7. The basis for such a harsh statement is that, as set forth in the general allegations
of the SAC and in an inadvertent error, realleged and incorporated all of the general allegations,
rather than omitting a selection thereof, into Counts I-VIII. As a result, GEORGIA NOTES
unintentionally alleges facts establishing the misdeeds, betrayals, torts, and/or fraudulent conduct
of some of the other defendants, including, but limited to FIRER and STAR, who were supposed
to be acting for and on behalf of GEORGIA NOTES, but tortuously/fraudulently were not, and in
so doing, allegedly failed to deliver all of the loan proceeds to MALECON, MEP, and
CELEBRITY, and that these acts of misdeeds, betrayals, torts and/or fraudulent conduct by FIRER
and STAR caused MALECON, MEP, and CELBRITY to be unable to repay the full amounts
owed under the loan agreements to GEORGIA NOTES.
MEMORANDUM OF LAW

8. First, whether through clerical error, unintentional oversight and/or
inadvertent/inartful drafting of the SAC, ¶ 17- 25, inclusive, should not be and were not intended
to be realleged and incorporated into Counts I-VIII alleged against MALECON, MEP, and
CELEBRITY but, at all times material were intended to be and should be alleged solely in regard
to the remaining counts alleged against some of the other defendants, including but limited to the
counts alleged against FIRER and STAR. While the evidence underlying the allegations of ¶17-
25, inclusive, may or may not, at some point “down the road”, support, in whole and/or in part,
defenses to full repayment of all amounts alleged due and owing in COUNTS I-VIII, Paragraphs
17-25 clearly are not intended to be a part of the causes of action set forth in COUNTS I-VIII.

Georgia Notes 18, LLC v. Malecon Pharmacy, Inc., et al.
Case No.: 2019-013828-CA-01
Plaintiff’s Response to Defendants’
MALECON’S, MEP’S, and CELEBRITY’s,
Motion To Dismiss 2d Amended Complaint
Page 6 of 9

9. Accordingly, when ¶17-25, inclusive, are omitted from incorporation into Counts
I-VIII, thereby amending Counts I-VIII, these first eight (8) counts state a cause of action for
breach of the respective loan agreements for failure to pay all amounts due and owing thereunder
or, the alternative counts for unjust enrichment. In order to state a cause of action for breach of
contract, the plaintiff must allege a valid contract, a material breach of the contract and damages
proximately caused by that breach, all of which GEAORGIA NOTES has alleged with ultimate
facts. See Deauville Hotel Management, LLC v. Ward, 219 So. 3d 949 (Fla. 3rd DCA 2017);
Murciano v. Garcia, 958 So. 2d 423 (Fla. 3d DCA 2007). As a matter of law, a plaintiff may
simultaneously allege the existence of an express contract and alternatively plead a claim for unjust
enrichment. Real Estate Value Co., Inc. v. Carnival Corp., 92 So. 3d 2012 (Fla. 3d DCA 2012);
Duty Free World, Inc. v. Miami Perfume Junction, Inc., 253 So. 3d 689 (Fla. 3d DCA 2018)
[holding that elements of a cause of action for unjust enrichment are: (1) plaintiff has conferred a
benefit on the defendant, who has knowledge thereof; (2) defendant voluntarily accepts and retains
the benefit conferred; and (3) the circumstances are such that it would be inequitable for the
defendant to retain the benefit without first paying the value thereof to the plaintiff].
10. Furthermore, the subject defendants have been unjustly enriched in regard to
whatever loan amount each actually did receive and failed to repay to GEORGIA NOTES.
MALECON, MEP, and CELEBRITY do not raise any additional arguments in order to support a
motion to dismiss Counts I-VIII alleged against them.
11. However, defendants MALECON, MEP and CELEBRITY improperly challenge
the Counts against some of the other remaining defendants notwithstanding the fact, the

Georgia Notes 18, LLC v. Malecon Pharmacy, Inc., et al.
Case No.: 2019-013828-CA-01
Plaintiff’s Response to Defendants’
MALECON’S, MEP’S, and CELEBRITY’s,
Motion To Dismiss 2d Amended Complaint
Page 7 of 9

MALECON, MEP and CELEBRITY have no standing to do so—they are not sued in the other
counts alleged against the other defendants and therefore, their arguments seeking to dismiss the
counts against the other defendants cannot be considered by the Trial Court in its consideration of
the MTD brought by MALECON, MEP and CELEBRITY. Those other remaining Defendants
have brought their own motion to dismiss.
12. Nevertheless, in this regard, MALECON, MEP, and CELEBRITY challenge the
counts alleged against other defendants, namely, the count for fraud (Count XXVI), the two counts
for conspiracy to commit fraud (Count XXXI and XXXII) alleged against OMNI HEALTH, INC.,
(“OMNI”), as well as the two other conspiracy to commit fraud counts alleged against ANDREY
SOLOVIEV, (“SOLOVIEV”), in his capacity as principal of the corporate defendants.
13. As alleged, the basis of the fraud counts and the conspiracy to commit fraud counts,
is that the original debts owed were converted through a false, forged, fraudulent Debt Conversion
Agreement (“DCA”), into shares of MALECON and MEP, and that GEORGIA NOTES’ alleged
agents who deceptively turned counter-agents, defendants FIRER and STAR, misled OMNI and
MALECON, thereby inducing them to enter into the fraudulent DCA. MALECON, MEP, and
CELEBRITY, therefore, argue that if FIRER and STAR were acting as agents of GEORGIA
NOTES in inducing the others to enter into the fraudulent DCA, then GEORGIA NOTES, itself,
was part of the alleged fraud and conspiracy to commit fraud and therefore, GEORGIA NOTES’
fraud claims are a nullity, that it is estopped from pursuing those claims.
14. However, when the respective fraud counts are read as a whole, together with the
general allegations, it is evident that, although, FIRER and STAR initially were retained to act as

Georgia Notes 18, LLC v. Malecon Pharmacy, Inc., et al.
Case No.: 2019-013828-CA-01
Plaintiff’s Response to Defendants’
MALECON’S, MEP’S, and CELEBRITY’s,
Motion To Dismiss 2d Amended Complaint
Page 8 of 9

agents for GEORGIA NOTES, they breached their own agreement with GEORGIA NOTES, acted
deceptively and adversely to the best interests of GEORGIA NOTES. FIRER and STAR therefore,
were not acting in the capacity that GEORGIA NOTES had originally retained their services for,
as authorized agents for and on behalf of GEORGIA NOTES, but were working against
GEORGIA NOTES, outside the scope of their alleged agency, in their own best interests.
Accordingly, at the time GEORGIA NOTES had no knowledge of FIRER’s and STAR’s
subterfuge, and therefore, GEORGIA NOTES was not a party to the fraud and/or conspiracy to
commit fraud.
15. Georgia NOTES’ claim for fraud and conspiracy allege legally sufficient ultimate
facts to state respective causes of action.
16. Again, as noted, MALECON, MEP, and CELEBRITY do not have standing to
challenge the legal sufficiency of the claims alleged against other defendants, but even so,
GEORGIA NOTES can amend the SAC to plead these claims more clearly, should the Trial Court
be so inclined to consider these challenges to the other claims alleged against the other defendants.
17. As a matter of law, pursuant to Fla. R. Civ. P. 1.190, if a trial court believes that a
complaint fails to state a cause of action, dismissal with prejudice, rather than granting leave to
amend, is not justified on that basis; rather, the plaintiff should be given leave to amend the
complaint, unless the trial court further finds that the privilege to amend has been clearly abused
or the complaint is clearly not amendable. Bouldin v. Okaloosa County, 580 So. 2d 205 (Fla. 1st
DCA 1991). Where a party may be able to allege additional facts to support its cause of action or
to support another cause of action based upon a different legal theory, dismissal with prejudice is

Georgia Notes 18, LLC v. Malecon Pharmacy, Inc., et al.
Case No.: 2019-013828-CA-01
Plaintiff’s Response to Defendants’
MALECON’S, MEP’S, and CELEBRITY’s,
Motion To Dismiss 2d Amended Complaint
Page 9 of 9

an abuse of discretion. Vorbeck v. Betancourt, 107 So. 3d 1142 (Fla. 3d DCA 2012).
18. Based upon the foregoing, GEORGIA NOTES should be given leave to amend its
pleading because the privilege has not been abused, the pleading is amendable, and there is no
prejudice to the subject defendants.
WHEREFORE, Plaintiff GEORGIA NOTES 18, LLC respectfully requests that the Trial
Court enter an Order which denies the MTD or in the alternative, grants GEORGIA NOTES leave
to amend the pleading.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was filed using Florida
Courts Efiling Portal and sent via email to William E. Calnan, Esq., Manny M. Tarich, Esq.,
[e-mail]; [e-mail]; [e-mail];
[e-mail], Lisa N. Balkin Gang, Esq., [e-mail] and Kai E. Jacobs, Esq.,
[e-mail]; [e-mail], this _26th _ day of January, 2021.

DERREVERE STEVENS BLACK & COZAD
2005 Vista Parkway, Suite 210
West Palm Beach, FL 33411
Telephone: [phone] / Fax: [phone]
/s/ Michael B. Stevens
BY: _________________________________
MICHAEL B. STEVENS, ESQUIRE
Florida Bar No.: 0057466
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