Electronically FILED by Superior Court of California, County of Los Angeles on 01/09/2020 11:56 AM Sherri R.

Carter, Executive Officer/Clerk of Court, by D. Ramos,Deputy Clerk

1 GIRARDI | KEESE
JOHN A. GIRARDI, State Bar No. 54917
2 [email protected]
1126 Wilshire Boulevard
3 Los Angeles, California 90017
Telephone: (213) 977-0211
4 Facsimile: (213) 481-1554
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5 Attorneys for Plaintiff, ZACHARY

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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF LOS ANGELES
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ZACHARY MARTINSEK individually, Case No. 19STCV42195
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Plaintiff, FIRST AMENDED COMPLAINT FOR
12 DAMAGES
v.
13 1. Breach of Contract
DAVE, INC., a corporation; JASON WILK, as 2. Breach of Fiduciary Duty
14 an individual and officer of DAVE; and DOES 3. Conversion
1 through 10, inclusive, 4. Breach of Implied Covenant of Good Faith
15 and Fair Dealing
Defendants. 5. Declaratory Relief i
16 6. Violation of Penal Code §496

17 __J DEMAND FOR JURY TRIAL \

18 COMES NOW Plaintiff ZACHARY MARTINSEK, individually, for causes of action against

19 Defendants DAVE, INC, (formerly known as LENDING LABS, INC.), a corporation, JASON WILK,

20 an individual and officer of DAVE, and DOES 1 through 10, inclusive (hereinafter collectively

21 referred to as "DEFENDANTS"), and complains and alleges as follows:

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FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 L

2 THE PARTIES

3 1. Plaintiff ZACHARY MARTINSEK ("Plaintiff) is an individual currently residing in

4 Dublin, in the State of Ohio.

5 2. Defendant DAVE, INC. ("DAVE") is, and at all times mentioned herein was, a

6 corporation organized and existing under the laws of the State of Delaware. Plaintiffs are informed and

7 based thereon allege, that at all times herein concerned, Defendant DAVE, maintained its corporate

8 headquarters at 1265 South Cochran Avenue in Los Angeles, California, is licensed to do business in

9 California, and was at all relevant times doing business in Los Angeles County, California.

10 3. Defendant JASON WILK ("WILK") is, and at all relevant times mentioned herein was, a

11 shareholder, officer, and director of DAVE.

12 4. The true names and/or capacities, whether individual, corporate, associate or otherwise, of

13 Defendants DOES 1 through 10, inclusive, and each of them, are unknown to Plaintiff, who therefore

14 sue said Defendants by such fictitious names. Plaintiff is informed and believes, and upon such

15 information and belief alleges, that each of the Defendants fictitiously named herein as a DOE is

16 legally responsible, negligently or in some other actionable manner, for the events and happenings

17 hereinafter referred to, and proximately caused the injuries and damages to Plaintiff hereinafter

18 alleged. Plaintiff will seek leave of Court to amend this Complaint to assert the true names and/or

19 capacities of such fictitiously named Defendants when the same have been ascertained.

20 5. Plaintiff is informed and believes, and based thereupon alleges, that at all times

21 mentioned herein, DEFENDANTS, and each of them, including DOES 1 through 10, were the agents,

22 servants, employees and/or joint venturers of their co-DEFENDANTS, and were, at all times, acting

23 within the course, scope and authority of said agency, employment, contract, ownership and/or joint

24 venture with the authority, consent, approval, control, influence, and ratification of each remaining

25 defendant sued herein,

26 6. Plaintiff is informed and believe, and based thereupon alleges, that if any of

27 DEFENDANTS are corporations, such corporations were in mere form only, having no separate

2 8 existence and that there exists, and at all times alleged herein existed, a unity of interest and ownership

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FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 between all DEFENDANTS such that any individuality and separateness between Defendant and

2 DEFENDANTS have ceased and all DEFENDANTS are the alter ego of each Defendant. Adherence

3 to the fiction of the separate existence of Defendant as an entity distinct from all Defendants would

4 permit an abuse of the corporate privilege and would permit injustice in that they would succeed in

5 avoiding legally incurred liabilities while maintaining the benefits of the corporation.

6 11.

7 JURISDICTION AND VENUE

8 7. This Court has jurisdiction over this matter because the damages to Plaintiff were caused

9 by the wrongful acts and omissions of DEFENDANTS, all of which occurred within the County of Los

10 Angeles, State of California. Further, DEFENDANTS principal place of business is, and at all times

11 mentioned herein was, in Los Angeles County, California.

12 8. At all times mentioned herein, DEFENDANTS were authorized to do business within the

13 State of California and did in fact contract with Plaintiff within the City and County of Los Angeles in the

14 State of California.

15 9. Venue is proper in the County of Los Angeles because the damages to Plaintiff were

16 caused by the wrongful acts and omissions by DEFENDANTS, all of which occurred within the City

17 of Los Angeles and County of Los Angeles, State of California. Further, venue is proper where

18 DEFENDANTS or some of them reside, in Los Angeles County, California.

19 III.

20 GENERAL ALLEGATIONS

21 10. Plaintiff hereby incorporates by reference each and every allegation set forth in the

22 foregoing paragraphs as though fully set forth hereinafter.

23 11. Plaintiff ZACFIARY MARTINSEK is a software engineering manager. From May of

24 2015 until October of 2016, Plaintiff worked remotely from Dayton, Ohio, with Defendant WILK to

25 develop the business model, fmancials, and initial software infrastructure for Lending Labs, Inc., later

26 renamed as DAVE, INC. During this time period and prior to signing a written contract, Plaintiff gave

27 up his business and worked for the support and benefit of DEFENDANTS.

28 12. Defendant DAVE is a financial technology company that provides its users with non-

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FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 recourse advances and loan services.

2 13. On September 28,2016, Plaintiff officially accepted employment at DAVE's corporate

3 headquarters in Los Angeles, California, as Director of Technology and Compliance, In October of 2016,

4 Plaintiff relocated to Los Angeles, California, to commence his employment on October 24, 2016.

5 14. On November 1,2016, Plaintiff entered into a Stock Option Agreement with DAVE. The

6 Agreement gave Plaintiff the option to purchase a total of One Million Seven Hundred Ten Thousand

7 (1,710,000) shares of Common Stock of the company, at a purchase price of $0.0001 per share. Twenty-

8 five percent (25%) of the shares vested upon signing, with l/36th of the shares vesting at the end of each

9 calendar month thereafter. At the time Plaintiff entered into the Stock Option Agreement, Defendnat Wilk

10 conveyed to Plaintiff that Plaintiffs option was worth 15% of the Company pre-diluted shares.

11 15. Plaintiff exercised the purchase option under the terms of the Stock Option Agreement,

12 and delivered to DEFENDANTS the full Purchase Price by check payment in the amount of One

13 Thousand Seven Hundred Dollars ($1,700), which DEFENDANTS tendered upon receipt.

14 16. Plaintiff continued to serve and support DAVE as Director of Technology and

15 Compliance until his termination by DEFENDANTS on June 22,2017.

16 17. As of his termination, Plaintiff held Six Hundred Seventy-Six Thousand Eight Hundred

17 Seventy-Four (676,874) vested shares of Common Stock under the terms of the Agreement.

18 18. On December 13,2017, DEFENDANTS unilaterally rescinded Plaintiffs vested shares.

19 DEFENDANTS' action constituted repudiation, and breach, of the Stock Option Agreement exercised by

20 Plaintiff. Moreover, DEFENDANTS never fully exercised their right to repurchase the unvested shares

21 under the terms of the Stock Option Agreement, withholding the monies paid by Plaintiff.

22 19. Plaintiff additionally alleges that the bookkeeping records of DAVE will likely reveal that

23 DEFENDANTS misappropriated Plaintiffs vested stock for their own personal benefit, failing to disclose

24 Plaintiffs purchased shares to directors, investors, shareholders, and others having financial interest.

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FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 IV.

2 FIRST CAUSE OF ACTION

3 BREACH OF CONTRACT

4 (Against All DEFENDANTS)

5 20. Plaintiff hereby incorporates by reference each and every allegation set forth in the

6 foregoing paragraphs as though fully set forth hereinafter.

7 21. At all times relevant herein, there existed a contract between Plaintiff and

8 DEFENDANTS. Such contract was oral, implied, and written.

9 22. Plaintiff has performed fully each and all of the conditions, covenants, and obligations

10 imposed under the respective agreements.

11 23. DEFENDANTS, and each of them, has materially and willfully breached the

12 agreements by: (a) failing and refusing to account properly and accurately the amount of Plaintiffs

13 vested shares; (b) misappropriating Plaintiffs business assets and/or profits for DEFENDANTS' own

14 personal use without consent of Plaintiff; (c) otherwise failing to perform the actions and duties

15 DEFENDANTS promised to perform pursuant to the terms agreed upon under the agreements.

16 24. As a direct and proximate result of the foregoing material breaches by DEFENDANTS,

17 Plaintiff has suffered monetary damages, with interest, and continues to sustain such damages, in an

18 amount in excess of the jurisdictional minimum of this court, and to be proven at the time of trial.

19 SECOND CAUSE OF ACTION

20 BREACH OF FIDUCIARY DUTY

21 (Against All DEFENDANTS)

22 25. Plaintiff hereby incorporates by reference each and every allegation set forth in the

23 foregoing paragraphs as though fully set forth hereinafter.

24 26. DEFENDANTS, as corporate officers, agents, partners, and directors, had duties to

25 Plaintiff.

26 21. DEFENDANTS, and each of them, breached their fiduciary duties and obligations by:

27 (a) failing and refusing to account properly and accurately the amount of Plaintiff s vested shares; (b)

28 misappropriating Plaintiffs business assets and/or profits for DEFENDANTS' own personal use

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FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 without consent of Plaintiff; (c) otherwise failing to perform the actions and duties DEFENDANTS

2 promised to perform pursuant to the terms agreed upon under each agreement.

3 28. As a direct, proximate, and reasonably foreseeable result of DEFENDANTS' breaches

4 of their fiduciary duties to Plaintiff, and other wrongful conduct, Plaintiff has suffered monetary

5 damages, with interest, in an amount to be proven at trial.

6 29. The aforementioned alleged acts of DEFENDANTS were willful, wanton, malicious,

7 oppressive, and undertaken with intent to defraud, in conscious disregard of the rights of Plaintiff, thus

8 justifying Plaintiff being awarded exemplary and punitive damages.

9 THIRD CAUSE OF ACTION

10 CONVERSION

11 (Against All DEFENDANTS)

12 30. Plaintiff hereby incorporates by reference each and every allegation set forth in the

13 foregoing paragraphs as though fully set forth hereinafter.

14 31. Plaintiff is, and at all times relevant herein was, the owner of or entitled to possession of

15 personal property in the form of Common Stock under the terms of the Stock Option Agreement.

16 32. DEFENDANTS, and each of them, has intentionally and substantially interfered with

17 Plaintiffs Common Stock, and refused to return Plaintiffs Common Stock after Plaintiff demanded its

18 return.

19 33. As a result of DEFENDANTS' acts of conversion, which were a substantial factor in

20 causing Plaintiffs harm, Plaintiff has been damaged in a sum to be proven at trial, including all

21 compensatory damages. Alternatively, Plaintiff is entitled to damages and repossession of the converted

22 property and will seek election of remedies at trial.

23 34. Between the time of DEFENDANTS' conversion of the above-mentioned property for

24 DEFENDANTS' own personal consumption and the time of filing this action, Plaintiff expended time

25 and money in pursuit of the converted property, all to further the damage incurred by Plaintiff in a sum to

26 be proven at trial. Plaintiff is therefore further entitled to compensation for the time and money expended

27 in pursuit of the converted property, the amount of which will be determined at trial.

28 35. As a proximate result of DEFENDANTS' conversion, Plaintiff suffered damages which

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FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 are the natural, reasonable, and proximate result of the conversion. The value of the converted property

2 from the year 2017 to the present, with interest from that time, will be determined according to proof at

3 trial.

4 36. The aforementioned alleged acts of DEFENDANTS were willful, wanton, malicious,

5 oppressive, and undertaken with intent to defraud, in conscious disregard of the rights of Plaintiff, thus

6 justifying Plaintiff being awarded exemplary and punitive damages.

7 FOURTH CAUSE OF ACTION

8 BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

9 (Against All DEFENDANTS)

10 37. Plaintiff hereby incorporates by reference each and every allegation set forth in the

11 foregoing paragraphs as though fully set forth hereinafter.

12 38. A covenant of good faith and fair dealing was implied into the parties' Employment

13 Agreement and Stock Option Agreement.

14 39. DEFENDANTS had a duty not to take, or refuse to take, any action that would deprive

15 the Plaintiff of the benefits of his bargain under the Employment and Stock Option Agreements.

16 40. In failing and refusing to take the acts discussed herein, DEFENDANTS breached the

17 implied covenant of good faith and fair dealing, causing Plaintiff damages and irreparable harm.

18 FIFTH CAUSE OF ACTION

19 DECLARATORY RELIEF

20 (Against All DEFENDANTS)

21 41. Plaintiff hereby incorporates by reference each and every allegation set forth in the

22 foregoing paragraphs as though fully set forth hereinafter.

23 42. There exists an actual controversy between Plaintiff and DEFENDANTS regarding the

24 legal relationship between Plaintiff and DEFENDANTS.

25 43. Upon information and belief, DEFENDANTS contend they are the owners of or entitled

26 to possession of personal property in the form of Common Stock that Plaintiff both paid for and vested

27 under the terms of the Stock Option Agreement.

28 44. Plaintiff contends that DEFENDANTS are not the rightful shareholders of the above-

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FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 mentioned Common Stock.

2 45. Plaintiff seeks a judicial determination that (i) Plaintiff is, and at all times relevant herein

3 was, the owner of or entitled to possession of personal property in the form of Common Stock under the

4 terms of the Stock Option Agreement; and (ii) DEFENDANTS are wrongfully withholding their

5 obligations to Plaintiffs by failing to deliver Plaintiffs vested shares of Common Stock under the terms

6 of the Stock Option Agreement.

7 SIXTH CAUSE OF ACTION

8 VIOLATION OF PENAL CODE § 496

9 (Against All DEFENDANTS)

10 46. Plaintiff hereby incorporates by reference each and every allegation set forth in the

11 foregoing paragraphs as though fully set forth hereinafter.

12 47. Plaintiff contends that DEFENDANTS obtained and withheld Plaintiffs Common Stock

13 in a manner constituting theft under Penal Code § 484 by fraudulently appropriating Plaintiffs property

14 under false pretense, knowing the property to be stolen, obtained, concealed or withheld from Plaintiff.

15 Moreover, in falsely reporting Plaintiffs Common Stock as their own property, DEFENDANTS have

16 defrauded investors, creditors, and others owed a fiduciary duty.

17 48. Penal Code §496(c) provides for a civil remedy for any person who has been injured by

18 violation of the statute, allowing such injured party to bring a civil action for three times the amount of

19 the actual damages sustained, costs of suit, and reasonable attorney's fees.

20 49. Plaintiff alleges that he has been injured by DEFENDANTS in a manner within the scope

21 of Penal Code §§496(a)-(b), and heretofore seeks, as against DEFENDANTS, three times the amount of

22 the actual damages sustained by Plaintiff, costs of suit, and reasonable attorney's fees.

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FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
1 V.

2 PRAYER FOR RELIEF

3 WHEREFORE, Plaintiff prays for judgment against the DEFENDANTS, and each of them, as
'f
4 follows:
5 1. For general damages according to proof at trial;

6 2. For compensatory damages, according to proof at trial;

7 3. For the value of the property converted, according to proof at trial;

8 4. For an order that Plaintiff is the owner of Dave Common Stock;

9 5. For an order that DEFENDANTS are wrongfully withholding delivery of Plaintiffs vested

10 shares of Common Stock;

11 6. For an award of treble damages pursuant to Penal Code §496.

12 7. For punitive and exemplary damages, according to proof at trial;

13 8. For an award of attorney's fees;

14 9. For costs of suit incurred herein; and

15 10. For such other and further relief as the court may deem just.

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17 VI.

18 JURY DEMAND

19 Plaintiff hereby demand a trial by jury on all claims so triable.

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21 DATED: December 20, 2019 GIRARDI | KEESE

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By:
24 JOHN A. GIRARDI
Attorneys for Plaintiff, ZACHARY MARTINSEK
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FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL