Civil Case (Tel Aviv) 12050-12-17 Nirolin Life Sciences Ltd. v. Dr. Manana Dan – Center for Aesthetic Medicine Ltd. - part 24

ILS 133,247 for cancellation of checks that customers gave to the plaintiff and which the plaintiff gave for deduction with credit providers.

ILS 462,283 for expenses incurred in order to manage the crisis, which included employee wages, rent and maintenance, attorney's expenses, vehicle expenses and public relations.

ILS 4,487 in respect of the balance of the defendants' debt to the plaintiff.

157. According to the opinion, the indirect damage caused to the plaintiff is ILS 226,421, which consists of:

ILS 132,275 overseas travel financing.

ILS 94,146 excess expenses for the clinic in Rishon LeZion.

158. According to the opinion, the damage to the value of the company is ILS 1,734,156, which is the difference between the value of the company as of December 31, 2016 (ILS 1,115,489) and its value on the date of the opinion, July 10, 2018 (ILS 618,667).
159. The total damages together therefore amount, as stated, to ILS 3,989,743.
160. According to the statement of claim (paragraph 123), the sums mentioned above are being claimed due to the defendants' conduct as detailed in the claim.
161. The acts of the defendants described in the lawsuit can be divided into two parts, one part is the defendants' alleged breach of the agreements with the plaintiffs and the damage that was allegedly caused as a result, and the second part is the defendants' publications and defamation of the plaintiffs vis-à-vis customers, employees, clearing companies and the manufacturer, and the damage that was allegedly caused as a result.
162. With regard to the first part, the defendants' alleged breach of the agreements with the plaintiffs, in view of the findings in the judgment in the banknote suit, which, as stated, require that the defendants' alleged debt for goods was not proven, the cancellation of the agreements by the plaintiffs on the grounds of a debt for goods, he himself therefore constituted a breach of the agreements on the part of the plaintiffs and the party violating the transaction is the plaintiffs and not the defendants.
163. Since the plaintiffs breached the agreements, it is clear that they cannot base the damages mentioned in CPA Caretta's opinion on an alleged breach by the defendants of the agreement, a breach that did not occur, so that if such damages were caused as a result of the plaintiffs canceling the transaction with the defendants, then they have no choice but to blame themselves, and one way or another the defendants are not responsible for these damages in any case.
164. On the other hand, with regard to the second part, the defendant's defamatory publications to employees, the manufacturer's customers and the clearing company, given that I determined in the chapter dealing with the cause of defamation that the defendants did not prove the defense of truth in the publication in relation to some of the publications, then on a principled level, the plaintiffs can base the damages mentioned in the opinion on the defamatory publications, but a condition for awarding the amounts claimed is proof of the causal connection between the defamatory publications and the damages alleged in the opinion. However, the plaintiffs failed to do so, as will be detailed.
165. In order to prove the aforementioned causal connection, the plaintiffs were required to bring appropriate evidence, and given that the heart of the matter is the claim that the defendant's defamatory publications are and only they are the ones that caused other customers to cancel transactions and not to renew transactions or execute transactions, the plaintiffs were obligated to bring to testify the other customers who allegedly canceled transactions with the plaintiff, so that we could hear from them. that they did so only because of the defendant's publications and not, for example, for reasons relating to their engagement with the plaintiff.
166. The problem is that such clients were not brought, not even a single shred of actual evidence, according to which other customers canceled transactions with the plaintiff or did not renew transactions solely because of the defendant's publications, was not brought.
167. The plaintiffs made do with the vague and general argument that it was the defendant's publications that caused the termination of engagements by other customers, a claim that is in fact hearsay testimony, since the other customers were not brought to testify, in order to say firsthand the reason for the termination of the engagements with the plaintiff. The plaintiffs also sufficed with the claim that the timing correspondence between the defendant's actions and the dramatic decline in the alleged revenues.  Apart from this, no other concrete evidence of weight was presented, if at all.
168. The plaintiffs' vague and general statement is clear that it is not enough. With all due respect, it is also not possible to settle for the claimed time compliance.  In the same way, the compatibility of the times could have stemmed from the fact that due to the plaintiff's own conduct vis-à-vis other clients, what happened to her happened to her, at the same time vis-à-vis all of her clients, with the rumor about the problems of each client vis-à-vis the plaintiffs spreading like wildfire, but from here to the imposition of liability on the defendant for actions performed by other clients vis-à-vis the plaintiffs, the distance is enormous.
169. The fact that in the relationship between the plaintiffs and the defendants the plaintiffs failed to prove the alleged debt in respect of the goods, certainly does not contribute to proving the claim that the defendant is to blame for all of the plaintiff's financial deterioration, i.e., also her deterioration vis-à-vis other customers, perhaps even the opposite.
170. The accountant Caretta Basaglim brought data from financial statements and bookkeeping. By means of his opinion, the plaintiffs cannot, therefore, prove the alleged causal connection, which is not the knowledge of the accountant.
171. The plaintiffs also did not publish, as part of their evidence, a detailed description of their sources of income in 2016 by customers, as well as the status of their engagements and income per customer in 2017, in order to shed an accurate light on the plaintiff's activity, beyond the opinion of Carta, including its appendices, which gave an overview and did not include these details, and in order to be able to understand exactly how the revenues allegedly decreased so dramatically from 2016 to 2017 and what exactly happened in the relationship between the plaintiff and the rest of its clients.
172. Moreover, it is precisely from an examination of the evidence that the plaintiffs attached, that supports the opinion that the problems with the plaintiff's other clients did not stem from the defendant's conduct, but rather from the plaintiff's relationship with those customers.
173. Thus, it appears that the person who founded the WhatsApp group called "Nirolin Fraud and Fraud" was not the defendant, but Iris Gal and see the appendix of the correspondence in the WhatsApp group that was attached to the plaintiffs' affidavits, where Iris writes "If you know girls I didn't add to the group then now is the time", which indicates that Iris is the manager of the group and she is the one who started it, since only the manager can add people to the group. The defendant herself testified in this way, and her testimony is reliable to me and is supported, as stated, by Iris's words.
174. If Iris opened a WhatsApp group called "Nirolin Fraud and Fraud" and added another cosmetologist of the plaintiff to the plaintiff's name, it seems clear that other customers of the plaintiff had claims against the plaintiffs and not only the defendant.
175. Plaintiff No. 4's conversation with Michal, a representative of one of the clearing companies, also indicates that another cosmetologist named Keren Alfasi complained that the plaintiff "disappeared with the products," e., took checks and did not deliver the goods, just as the defendant claims.
176. This is not a situation, therefore, whereby only the defendant made an "alihum" on the plaintiffs, and as a result, and only as a result of this, other cosmetologists canceled transactions and did not renew transactions with the plaintiffs.
177. In this context, I will add that the line of logic also does not sit well with a situation in which dozens of satisfied customers of a company decide to stop working with it, just because one single customer is not happy and defames the company, even if with severe slander of fraud.
178. This does not mean that the line of logic cannot contain a situation in which other customers may be affected by the claims of a certain customer against a supplier who also works with them, but not in the way the plaintiffs depict, according to which only because of the defendant's defamatory publications, dozens of customers decided to stop working with the plaintiffs. It is possible that the defendant's conduct was a "wake-up call" or a catalyst for the other customers to take a good look at what was happening in their commercial relations with the plaintiff, but from here until the defendant was held responsible for the independent actions of other customers vis-à-vis the plaintiffs, the distance is great.
179. As stated, if the plaintiff's business relations with the other cosmetologists had been normal, it is reasonable to assume that the defendant's publications would not have succeeded in carrying out such a sweep as the plaintiffs claim occurred.
180. The plaintiffs' work method, which was proven in the relationship with the defendant and which was likely to have been practiced with the other clients as well, also indicates problematic or at least unconventional conduct, to say the least, which likely contributed to crises with other clients as well.
181. Let us start with the fact that it was proven that the plaintiff, through the plaintiffs, executed a complex engagement with the defendant worth millions of shekels, on the basis of summaries in a criminal appeal only, without a written contract, not even a handwritten note regarding the main obligations that each party undertook.
182. This fact already casts a shadow over the plaintiff's conduct and raises the likelihood that her engagements with her clients will become complicated and ultimately lead to a deterioration in her business and financial situation.
183. But the main thing is that it was proven that in the framework of the relationship between the plaintiff and the defendants, the plaintiffs took into their own hands checkbooks of one of the defendants, in order to write checks in favor of the plaintiff in respect of the goods. Even if the defendant agreed to this, and indeed this is what was proven in the framework of the promissory note, it goes without saying that this is a completely unconventional conduct, to say the least, which creates a high chance of disputes and disagreements from the outset.
184. Finally, it was also proven that the defendant's checks, including those of other customers, were transferred by the plaintiff on an ongoing and serial basis for discounting with non-bank entities, and this fact also says that the plaintiff's cash flow financial situation is at least.
185. Apart from the fact that the claim for the heads of damage mentioned in CPA Carta's opinion should be rejected, since the causal connection between the defendant's actions and the alleged damages has not been proven, there are also problems of one kind or another at the level of the alleged damage.
186. Thus, for example, the plaintiffs include damages in the amount of ILS 133,247 for the cancellation of checks that customers gave to the plaintiff and which the plaintiff gave for deduction with credit providers, but if indeed the plaintiffs' claims are true and the only reason for the other customers' conduct vis-à-vis it was only the defendant's publications, then it is clear that the cancellation of the said checks was done unlawfully and the plaintiff could easily have sued its customers for the aforementioned checks. We heard nothing about it.
187. Moreover, the plaintiff petitions to charge the defendants in the amount of ILS 462,283 for expenses that she defined as expenses for the benefit of managing the crisis, but an examination of the details of the expenses reveals that most of them are general expenses that were required for the plaintiff's continued operation in general, such as employee wages, rent and maintenance, vehicle expenses and public relations.
188. Only a negligible sum of ILS 2,500 in respect of attorney's fees can perhaps be attributed to the overall alleged crisis that has arisen in the company, for which it has not been proven that the defendant is responsible.
189. Even the two sums mentioned in the Caretta opinion for financing trips abroad, in the sum of ILS 132,275 and excess expenses on the clinic in Rishon Lezion in the amount of ILS 94,146, the plaintiffs are not entitled to receive.
190. Let's start with the first reason, and in addition to the one that will come more about the two sums mentioned above, which relates to the excess expenses claimed at the clinic in Rishon LeZion. This component should be rejected, if only because the plaintiffs themselves claim in the statement of claim (para.  78) that it was agreed upon by Manana to waive her salary for the time she worked in the clinic in Rishon LeZion, since Nirolin remained in a deficit in relation to her investments, and the latter would also demand nothing more in this regard.
191. And with regard to the two sums mentioned above, in their petition, the plaintiffs take the two sums from an overall accounting between the parties and isolate them, without bringing the overall accounting map, which alone can prove who remains indebted to whom and how much.
192. Therefore, in order to receive the aforementioned two sums, which are, as aforesaid, part of the overall accounting, the plaintiffs should have asked CPA Carta to submit an opinion relating to the period of the engagement between the parties and which maps and details all the sums that each party undertook to pay to the other, detailing their nature, what was actually paid by each party to the other party, taking into account in this context that the transaction was canceled and thus conducting a comprehensive and detailed accounting as required.
193. CPA Carta's opinion does not include such a calculation.
194. By the way, in the framework of this calculation, given that what was determined in the promissory note claim was determined, the necessary starting point regarding the merchandise debt that was claimed in the promissory note claim and which was also claimed here should have been that neither party owes the other party anything in this matter (neither money nor goods), so that even the negligible balance of the plaintiff's debt that CPA Carta claims exists in the sum of ILS 4,487 is not due to the plaintiff insofar as it is a debt for goods. Moreover, CPA Carta does not explain in his opinion what the balance of the aforementioned debt is, but suffices with the general and vague claim that the aforementioned sum is "according to the company's books" without referring to that place in the company's books where the aforementioned figure and/or its calculation can be found.
195. Although CPA Carta did not refer to this in his opinion, it is mentioned in the statement of claim in the context of the description of the current head of damage, and therefore I say in this regard that the plaintiffs are not entitled to any compensation for the claim of loss of goodwill or damage to reputation, when no such loss or damage has been proven since no explanation or detail of calculation has been given in relation to the sum claimed in this matter in a casual and general manner in the sum of ILS 1,500,000.
196. It should be mentioned that the current head of damage was filed for ILS 2,500,000 for loss of sales in 2017 and ILS 1,500,000 for damage to goodwill; ILS 10,000,000 for loss of sales for the years 2018-2022 inclusive; Approximately ILS 10,000,000 decrease in the value of the plaintiff (it should be noted that it is not clear from the claim whether the aforementioned three sums are claimed cumulatively or alternatively).
197. As detailed in detail above, the defendant is not liable for the losses of sales and/or for the damage to the value of the company to the extent that it existed and the amount claimed for damage to reputation has not been proven.

Conclusion

198. Therefore, out of a total sum of ILS 1,000,000 for the purposes of a fee, the plaintiffs should be awarded ILS 40,000 for defamatory publications.  Defendant 3 will pay the plaintiffs ILS 40,000 within 30 days from today.
199. Given the outcome, each party will bear its own expenses.

Granted today, December 24, 2024.