Alleged Discrimination Case

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[attorney info redacted] [redacted] [redacted] [redacted] [redacted] [redacted] Attorneys for Defendants PQRS Corporation, Tom Adams and Kenny Adams, and for self, in pro per The FAC contained 11 causes of action against which I wrote 23 demurrers, which are stated below, with the judge’s rulings inserted in red. 19 demurrers were sustained (one of these was sustained with NO leave to amend, thereby eliminating the seventh cause of action for BPC § 17200). Four demurrers were overruled, but two of these were as to causes of action against which other demurrers were sustained. Only two causes of action survived intact (the tenth and eleventh), and I had advised the attorney
that those two were the well pleaded and likely to survive our demurrers and motion to strike.

SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES CENTRAL DISTRICT
JOHN SMITH, Plaintiff vs. PQRS CORPORATION, a California Corporation dba PQRS APPAREL; TOM ADAMS, an individual; KENNY ADAMS, an individual; PAUL ROBERTS, an individual; and DOEs 1 to 20, inclusive, Defendants Case Number: Assigned to: [redacted] [redacted]

DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Filed concurrently with Request for Judicial Notice and Motion to Strike. Complaint filed: [redacted] Hearing Date: Hearing Time: Hearing Dept.: ________ ________ [redacted]

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DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

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TO THE COURT, ALL INTERESTED PARTIES HEREIN, AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT a hearing will be held on ______________ at ________, or as soon thereafter as the matter can be heard, in Department [redacted of the above-entitled Court, located at 111 North Hill Street, Los Angeles, California 90012, on the within Demurrer of Defendants PQRS Corporation (hereinafter the “PQRS CORP”), Tom Adams (hereinafter “TOM”), Kenny Adams (hereinafter “KENNY”) and Paul Roberts (hereinafter “ROBERTS”) to the First Amended Complaint (hereinafter “FAC”) filed by Plaintiff John Smith. ROBERTS is the attorney for PQRS CORP, TOM, and KENNY and is also appearing in his own behalf, in pro per. Hereinafter “ADAMS DEFENDANTS” refers collectively to Defendants TOM and KENNY. Hereinafter “INDIVIDUAL DEFENDANTS” refers collectively to Defendants TOM, KENNY and ROBERTS. Hereinafter “DEMURRING DEFENDANTS” refers collectively to Defendants PQRS CORP, TOM, KENNY and ROBERTS. Hereinafter “CCP” refers to the Code of Civil Procedure. The Demurrer will be based on this Notice of Hearing, the accompanying Demurrer and Memorandum of Points and Authorities, the Request for Judicial Notice filed concurrently herewith, the proposed order lodged herewith, and all pleadings and papers on file in the above-captioned action.

Dated: _________________ [redacted]

By: [redacted], Attorneys for Defendants [redacted]

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Demurrers
The definitions set forth ante in the Notice of Hearing are incorporated herein to avoid repetition. DEMURRING DEFENDANTS, for themselves and for no other Defendant, hereby demur the FAC on the following grounds: 1. The entire FAC, and all the causes of action therein, are uncertain, ambiguous and unintelligible because the distinction between partnership and corporation is blurred. CCP § 430.10(f). Sustained with 30 days leave to amend. 2. The FAC fails to state facts sufficient to constitute a cause of action against PQRS CORP because none of the eleven causes of action is alleged against PQRS CORP. CCP § 430.10(e). Sustained with 30 days leave to amend. 3. The First Cause of Action for Conversion fails to state facts sufficient to constitute a cause of action for conversion against the ADAMS DEFENDANTS because it fails to allege Plaintiff’s ownership or right to possession of any allegedly converted property. Code of Civil Procedure CCP § 430.10(e). Sustained with 30 days leave to amend. 4. The First Cause of Action for Conversion is uncertain, ambiguous and unintelligible because it makes allegations that indicate diametrically inconsistent business results for PQRS CORP. CCP § 430.10(f). Overruled. 5. The Second Cause of Action for Fraud and Deceit (Intentional Misrepresentation) fails to state facts sufficient to constitute a cause of action for fraud or deceit or intentional misrepresentation against the ADAMS DEFENDANTS because its allegation of damages is conclusory, is wholly unsupported by any factual allegations of damages, and contradicts other allegations in the FAC. CCP § 430.10(e). Sustained with 30 days leave to amend. 6. The Second Cause of Action for Fraud and Deceit (Intentional Misrepresentation) fails to state facts sufficient to constitute a cause of action for fraud or deceit or intentional misrepresentation against the ADAMS DEFENDANTS because the alleged causal connection between the ADAMS DEFENDANTS’S alleged intentional

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misrepresentation and Plaintiff’s alleged damages makes no reasonable sense on its face. CCP § 430.10(e). Sustained with 30 days leave to amend. 7. The Second Cause of Action for Fraud and Deceit (Intentional Misrepresentation) fails to state facts sufficient to constitute a cause of action for fraud or deceit or intentional misrepresentation against the ADAMS DEFENDANTS because Plaintiff’s reliance on the alleged misrepresentation was not justifiable because the alleged contract induced thereby would have been void for lack of consideration from Plaintiff. CCP § 430.10(e). Sustained with 30 days leave to amend. 8. The Third Cause of Action for Fraud and Deceit (Fraudulent Concealment) is uncertain, ambiguous and unintelligible because FAC ¶ 46 is rambling and incomprehensible. CCP § 430.10(f). Overruled. 9. The Third Cause of Action for Fraud and Deceit (Fraudulent Concealment) fails to state facts sufficient to constitute a cause of action for fraud or deceit or fraudulent concealment against the ADAMS DEFENDANTS because its allegation of damages is conclusory, is wholly unsupported by any factual allegations of damages, and contradicts other allegations in the FAC. CCP § 430.10(e). Sustained with 30 days leave to amend. 10. The Third Cause of Action for Fraud and Deceit (Fraudulent Concealment) fails to state facts sufficient to constitute a cause of action for fraud or deceit or fraudulent concealment against the ADAMS DEFENDANTS because justifiable reliance is not alleged. CCP § 430.10(e). Sustained with 30 days leave to amend. 11. The Fourth Cause of Action for Breach of Fiduciary Duty fails to state facts sufficient to constitute a cause of action for breach of fiduciary duty against the ADAMS DEFENDANTS because its allegation of damages is conclusory, is wholly unsupported by any factual allegations of damages, and contradicts other allegations in the FAC. CCP § 430.10(e). Sustained with 30 days leave to amend. 12. The Fourth Cause of Action for Breach of Fiduciary Duty fails to state facts sufficient to constitute a cause of action for breach of fiduciary duty against the ADAMS DEFENDANTS because proximate cause is not alleged. CCP § 430.10(e). Sustained with 30 days leave to amend. 13. The Fifth Cause of Action for Breach of Contract fails to state facts sufficient 4
DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

to constitute a cause of action for breach of contract against the ADAMS DEFENDANTS

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because the “contract” alleged cannot exist as a matter of law. CCP § 430.10(e). Sustained with 30 days leave to amend. 14. The Fifth Cause of Action for Breach of Contract fails to state facts sufficient to constitute a cause of action for breach of contract against the ADAMS DEFENDANTS because its allegation of damages is conclusory, is wholly unsupported by any factual allegations of damages, and contradicts other allegations in the FAC. CCP § 430.10(e). Sustained with 30 days leave to amend. 15. The Sixth Cause of Action for Declaratory Relief (Dissolution and Liquidation of Corporation) is uncertain, ambiguous and unintelligible because it is uncertain whether it is referring to a corporation or to a partnership. CCP § 430.10(f). Sustained with 30 days leave to amend. 16. The Sixth Cause of Action for Declaratory Relief (Dissolution and Liquidation of Corporation) fails to state facts sufficient to constitute a cause of action for declaratory relief or dissolution of corporation or liquidation of corporation against the ADAMS DEFENDANTS. CCP § 430.10(e). Sustained with 30 days leave to amend. 17. The Seventh Cause of Action for Unfair Business Practice (CA Business Code § 17200) fails to state facts sufficient to constitute a cause of action for unfair business practice against the ADAMS DEFENDANTS. CCP § 430.10(e). Sustained with NO leave to amend. 18. The Eighth Cause of Action for Common Counts (Money Had and Received) fails to state facts sufficient to constitute a cause of action for common counts against the ADAMS DEFENDANTS because it fails to allege any statement of indebtedness in a certain sum. CCP § 430.10(e). Sustained with 30 days leave to amend. 19. The Eighth Cause of Action for Common Counts (Money Had and Received) fails to state facts sufficient to constitute a cause of action for common counts against the ADAMS DEFENDANTS because it fails to allege nonpayment. CCP § 430.10(e). Sustained with 30 days leave to amend. 20. to amend. 5
DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

The Eighth Cause of Action for Common Counts (Money Had and Received)

is uncertain, ambiguous and unintelligible. CCP § 430.10(f). Sustained with 30 days leave

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21.

The Ninth Cause of Action for Constructive Trust fails to state facts sufficient

to constitute a cause of action for constructive trust against the ADAMS DEFENDANTS because it fails to adequately allege that anything owned by plaintiff was wrongfully detained. CCP § 430.10(e). Sustained with 30 days leave to amend. 22. The Tenth Cause of Action for Assault and Battery fails to state facts sufficient to constitute a cause of action for assault or battery against the INDIVIDUAL DEFENDANTS. CCP § 430.10(e). Overruled. 23. The Eleventh Cause of Action for Intentional Infliction of Emotional Distress fails to state facts sufficient to constitute a cause of action for intentional infliction of emotional distress against the INDIVIDUAL DEFENDANTS. CCP § 430.10(e). Overruled. WHEREFORE, the DEMURRING DEFENDANTS pray judgment as follows: A. That the Demurrer to the Complaint be sustained in its entirety, and/or as to each of the ten causes of action therein, without leave to amend; B. That the Plaintiff take nothing by his Complaint; C. For reasonable attorney fees and costs incurred herein; and D. For such other relief that this Court deems necessary and proper. Dated: _________________ [redacted]

By: [redacted], Attorneys for Defendants [redacted]

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DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

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Table of Contents
1. Factual Summary .................................................................................................................12 2. Objections to Pleading May Be Taken by Demurrer, Which May Rely on Matters Judicially Noticed, Including PQRS CORP’S Articles of Incorporation. ...................13 3. The Court Should Sustain Each of the Demurrers Because (a) the FAC Fails to State Facts Sufficient to Constitute a Cause of Action against Demurring Defendants on Which Relief Can Be Granted, and (b) the FAC Is Uncertain, Ambiguous and Unintelligible. .......................................................................................................14 3.1 The Entire FAC Is Uncertain, Ambiguous and Unintelligible Because It Blurs the Distinction Between Partnership and Corporation. ...............................................14 3.2. The FAC Fails to a Cause of Action Against PQRS CORP Because None of the Eleven Causes of Action Is Alleged Against PQRS CORP. .................................15 3.3. The First Cause of Action Fails to State a Cause of Action for Conversion Because It Fails to Allege Plaintiff’s Ownership or Right to Possession of Any Allegedly Converted Property. ......................................................................16 3.4. The First Cause of Action Is Uncertain, Ambiguous and Unintelligible Because It Makes Allegations Indicating Inconsistent Business Results for PQRS CORP. ....................................................................................................................16 3.5. The Second Cause of Action for Fraud and Deceit (intentional Misrepresentation) Fails to State Facts Sufficient to Constitute a Cause of Action Against the ADAMS DEFENDANTS for Fraud or Deceit or Intentional Misrepresentation. ...............................................................................17 3.5.1. The Allegation of Damages Is Conclusory, Is Wholly Unsupported by Any Factual Allegations of Damages, and Contradicts Other Allegations in the FAC............................................................................................................17 3.5.2. The Alleged Causal Connection Between the Intentional Misrepresentation and Plaintiff’s Alleged Damages Makes No Reasonable Sense on Its Face. .................................................................................................................17

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3.5.3.
Plaintiff’s Reliance on the Alleged Misrepresentation Was Not Justifiable Because the Alleged Contract Induced Thereby Would Have Been Void for Lack of Consideration from Plaintiff. ........................................................18 3.6. The Third Cause of Action for Fraud and Deceit (Fraudulent Concealment) Is Uncertain, Ambiguous and Unintelligible because FAC ¶ 46 Is Rambling and Incomprehensible. ...........................................................................................18 3.7. The Third Cause of Action Fails to State a Cause of Action for Fraudulent Concealment Against the ADAMS DEFENDANTS ............................................19 3.7.1. The Allegation of Damages Is Conclusory, Is Wholly Unsupported by Any Factual Allegations of Damages, and Contradicts Other Allegations in the FAC............................................................................................................19 3.7.2. Justifiable Reliance Is Not Alleged........................................................................19 3.8. The Fourth Cause of Action Fails to State a Cause of Action for Breach of Fiduciary Duty Against the ADAMS DEFENDANTS. ........................................19 3.8.1. The Allegation of Damages Is Conclusory, Is Wholly Unsupported by Any Factual Allegations of Damages, and Contradicts Other Allegations in the FAC............................................................................................................19 3.8.2.
Proximate Cause Is Not Alleged............................................................................19 3.9. The Fifth Cause of Action Fails to State a Cause of Action for Breach of Contract Against the ADAMS DEFENDANTS....................................................20 3.9.1. The “Contract” Alleged Cannot Exist As a Matter of Law. ..................................20 3.9.2. The Allegation of Damages Is Conclusory, Is Wholly Unsupported by Any Factual Allegations of Damages, and Contradicts Other Allegations in the FAC............................................................................................................20 3.10. The Sixth Cause of Action for Declaratory Relief (Dissolution and Liquidation of Corporation) Is Uncertain, Ambiguous and Unintelligible Because It Is Uncertain Whether It Is Referring to a Corporation or to a Partnership................20 3.11. The Sixth Cause of Action for Declaratory Relief (Dissolution and Liquidation of Corporation) Fails to State Facts Sufficient to Constitute a Cause of Action for Declaratory Relief or Dissolution of Corporation or Liquidation of Corporation........................................................................................................21 8
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3.11.1. PQRS CORP Cannot Be Declared Dissolved or Liquidated Because It Is Not Named as a Defendant to This Cause of Action. ......................................21 3.11.2. Irreconcilable Differences and Dispute Between Shareholders Is Not Lawful Grounds for Dissolution or Liquidation of a Corporation...................21 3.12. The Seventh Cause of Action Fails to State Facts Sufficient to Constitute a Cause of Action for Unfair Business Practice (CA Business Code § 17200) Against the ADAMS DEFENDANTS...................................................................22 3.13. The Eighth Cause of Action Fails to State a Cause of Action for Common Counts Against the ADAMS DEFENDANTS. .....................................................22 3.13.1. No Statement of Indebtedness in a Certain Sum Is Alleged. ...............................23 3.13.1. Nonpayment Is Not Alleged. ...............................................................................23 3.14. The Eighth Cause of Action for Common Counts (Money Had and Received) Is Uncertain, Ambiguous and Unintelligible. ........................................................23 3.15. The Ninth Cause of Action Fails to State a Cause of Action for Constructive Trust Against the ADAMS DEFENDANTS Because It Fails to Adequately Allege That Anything Owned By Plaintiff Was Wrongfully Detained.................23 3.16. The Tenth Cause of Action Fails to State a Cause of Action for Assault and Battery Against the INDIVIDUAL DEFENDANTS. ...........................................24 3.16.1. Assault Is Not Adequately Alleged......................................................................25 3.16.1. Battery Is Not Adequately Alleged......................................................................25 3.17. The Eleventh Cause of Action Fails to State a Cause of Action for Intentional Infliction of Emotional Distress Against the INDIVIDUAL DEFENDANTS. ....................................................................................................26 5. Conclusion. ..........................................................................Error! Bookmark not defined.

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Table of Authorities
Cases: Amtower v. Photon Dynamics, Inc. (6th Dist., 2008) 158 Cal.App.4th 1582................... 19 Bauer v. Bauer (1996) 46 Cal.App.4th 1106 ..................................................................... 21 Berkley v. Dowds (2nd Dist., 2007) 152 Cal.App.4th 518................................................ 26 Burlesci v. Petersen (1998) 68 Cal. App. 4th 1062 ........................................................... 16 Cody F. v. Falletti (1 Dist.,2001) 92 Cal.App.4th 1232 .................................................... 14 Commonwealth Mortgage Assurance Co. v. Superior Court (2nd Dist., 1989) 211 Cal.App.3d 508 .............................................................................................................. 17 Communist Party v. 522 Valencia, Inc. (1st Dist.,1995) 35 Cal.App.4th 980 .................. 24 Frickstad v. Medcraft (App. 1 Dist. 1929) 100 Cal.App. 188 ........................................... 24 Khoury v. Maly 's of Calif., Inc. (1993) 14 Cal.App.4th 612............................................. 22 Lortz v. Connell (1.Dist, 1969) 273 Cal.App.2d 286 ........................................................ 20 Masters v. San Bernardino County Employees Retirement Assn. (4 Dist.,1995) 32

17 18 19 20 21 22 23 24 25 26 27 28

Cal.App.4th 30............................................................................................................... 18 Miles, Inc. v. Scripps Clinic & Research Found (S.D.Cal.1993) 810 F.Supp.1091.......... 15 Oakdale Village Group v. Fong (1996) 43 Cal. App. 4th 539........................................... 16 Panoutsopoulos v. Chambliss (1 Dist.,2007) 157 Cal.App.4th 297 .................................. 17 Persson v. Smart Inventions, Inc. (2005) 125 CA4th 1141 ............................................... 14 Piedra v. Dugan (4th Dist., 2004) 123 Cal.App.4th 1483.................................................. 25 Schultz v. Harney (2.Dist, 1994) 27 Cal.App.4th 1611..................................................... 22 Stuparich v. Harbor Furniture Mfg., Inc. (2000) 83 Cal.App.4th 1268............................. 21

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Statutes: CCP §430.10 ................................................................................................................ 13, 15 CCP §430.30 ...................................................................................................................... 14 Civil Code § 1550 .............................................................................................................. 18 Civil Code § 2223 .............................................................................................................. 23 Treatises: Witkin Cal. Procedure (3d ed. 1985) Pleading § 508 ........................................................ 22 Jury Instructions: Judicial Council of California Civil Jury Instruction 1300................................................ 25 Judicial Council of California Civil Jury Instruction 1301................................................ 24

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Memorandum of Points and Authorities
The definitions set forth ante in the Notice of Hearing and Demurrers are incorporated herein to avoid repetition. State Bar members are required to pass a tough Bar Exam as well as an investigation into their moral character. But sometimes the system fails, and unworthy individuals become attorneys. Such appears to be the case with Plaintiff’s counsel. The FAC is extremely poorly written. So was the original Complaint. Indeed, the FAC was filed in response to a prior demurrer that pointed out numerous problems with the original Complaint. Plaintiff’s counsel failed to grasp, much less fix, those problems, and the Defendants must therefore now repeat most of the content of the prior demurrer. Rather than heeding the guidance in the prior demurrer, Plaintiff’s counsel has instead added Defendants’ counsel ROBERTS as a defendant with an outrageous, unethical, and blatantly false allegation that ROBERTS assaulted and battered Plaintiff. The FAC purports to state a case against the DEMURRING DEFENDANTS when no such case exists. Therefore, the Court should sustain the Demurrer and dismiss the FAC without leave to amend.

1. Factual Summary
Plaintiff, TOM and KENNY launched a garment business, incorporating as PQRS CORP.
They agreed to the shareholder percentages and investment amounts stated in FAC ¶¶ 16-17, which gave Plaintiff a 35% shareholder interest and required him to invest $245,000 (hereinafter the “STOCK AGREEMENT”). However, Plaintiff only invested $100,000 of that into PQRS CORP, and, pursuant to a loan to Plaintiff from TOM, TOM paid the remaining $145,000 into PQRS CORP (FAC ¶ 16(2)(C)). TOM and KENNY each invested the full amounts required into PQRS CORP: $385,000 and $70,000, respectively. The total capital investment was $700,000. There was talk about substantial additional investment by TOM, but such additional investment would be contingent upon a showing of progress and also upon the issuance of additional stock to TOM (which would dilute the stock held by the others). TOM and KENNY entrusted Plaintiff with the day-to-day management of PQRS CORP. Their trust was misplaced. After a period of time, it became clear that Plaintiff did
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not really know what he was doing. Plaintiff expended an inordinate amount of time and corporate funds with extremely disappointing results. Deadlines passed and were delayed. Plaintiff caused PQRS CORP to incur debts. Plaintiff hired employees but mismanaged them. The business descended into mayhem. In February 2008, TOM and KENNY caused a CPA to audit PQRS CORP’S financial records to determine what was going on. They learned that the mismanagement was far more serious than they had previously imagined. On March 13, 2008 a board of directors meeting was held and was attended by Plaintiff, TOM, KENNY and ROBERTS. Pursuant to a resolution of the directors thereat, Plaintiff was fired both as Secretary of PQRS CORP and as an employee of PQRS CORP. Plaintiff became extremely angry and belligerent. TOM, KENNY and ROBERTS became concerned about security and the possibility of retaliatory acts by Plaintiff against the business. Consequently, they changed the locks on the PQRS CORP premises. The next day, March 14, 2008, Plaintiff returned to the premises and began harassing customers and employees. He was asked to leave, but refused. Consequently, TOM called the police, who removed Plaintiff from the premises. Personal videos taken, as well as security camera tapes, show that there was no assault, battery or other violence at any of these incidents, except for the fact that (as shown in the tapes) Plaintiff initially refused to comply with the police officers, whereupon the officers had to become more assertive. TOM and KENNY are now faced with repairing the damage done to the business by Plaintiff. If they succeed at turning things around and making the business profitable, then Plaintiff will benefit to the extent of his 35% shareholder interest.

2. Objections to Pleading May Be Taken by Demurrer, Which May Rely on Matters Judicially Noticed, Including PQRS CORP’S Articles of Incorporation.
Objections to a pleading may be taken by demurrer. CCP §430.10 states: “The party against whom a complaint ... has been filed may object, by demurrer ... to the pleading on any one or more of the following grounds: ... 13
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(e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.” A demurrer may rely on matters judicially noticed. CCP §430.30(a) states: 430.30. (a) When any ground for objection to a complaint, crosscomplaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading. In their Request for Judicial Notice filed concurrently herewith, the DEMURRING DEFENDANTS have requested that the Court take judicial notice of the PQRS CORP’S Articles of Incorporation (hereinafter the “ARTICLES”). “[D]ocuments that were relied on... were properly the subject of judicial notice in the trial court include recorded grant deeds, articles of incorporation of the RTA filed with the secretary of state,...” Cody F. v. Falletti (1 Dist.,2001) 92 Cal.App.4th 1232 @ 1236.

3. The Court Should Sustain Each of the Demurrers Because (a) the FAC Fails to State Facts Sufficient to Constitute a Cause of Action against Demurring Defendants on Which Relief Can Be Granted, and (b) the FAC Is Uncertain, Ambiguous and Unintelligible.
3.1 The Entire FAC Is Uncertain, Ambiguous and Unintelligible Because It Blurs the Distinction Between Partnership and Corporation. It is hornbook law that partnerships and corporations are fundamentally distinct types of legal entities. In its caption, the FAC names PQRS CORP as a “California Corporation,” and in ¶ 6 the FAC alleges that PQRS CORP is a “California Corporation.” The ARTICLES state that PQRS CORP was incorporated on May 3, 2007. Therefore, as a matter of law, PQRS CORP is not a partnership. Yet, in its caption on page 1, the FAC states that its 6th cause of action is for “Dissolution of Partnership.” Incorporation of a partnership extinguishes a pre-existing partnership. “Upon the incorporation of a partnership and its merger in the corporate entity, the partners cease to be such, and have only the rights, duties and obligations of shareholders. There no longer exist any rights or obligations which the partners as such can enforce, the one against the other.” 14
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Persson v. Smart Inventions, Inc. (2005) 125 CA4th 1141 @ 1156–1159. The same is true of a “joint venture” which is, in essence, a form of partnership. “[T]he fact that the entity created by Miles and Scripps was a corporation, not a joint venture, precludes liability for breach of fiduciary duty. By selecting the corporate form as a manner of achieving their goals, Miles and Scripps, both sophisticated parties, elected the benefits granted under that form and rejected the option and the benefits of continuing with a joint venture.” Miles, Inc. v. Scripps Clinic & Research Found (S.D.Cal.1993) 810 F.Supp.1091 @ 1099. The FAC alleges in ¶¶ 11-13 that the parties entered a partnership, and twice references a “Partnership Agreement” in ¶¶ 12-13. But then in ¶¶ 14-18 the FAC alleges that the partnership was incorporated. As a matter of law, whatever partnership and/or “partnership agreement” might have initially existed was extinguished on May 3, 2007, the date of incorporation. Yet, the FAC alleges in ¶¶ 14-18 that the “Partnership Agreement” evolved into an “Amended Agreement” that somehow governs the corporate business. FAC ¶ 40 alleges that Plaintiff agreed to an “amendment of the agreement” because TOM allegedly promised to invest an additional one million dollars—pursuant to the STOCK AGREEMENT as alleged in FAC ¶ 16(1)(C)—but then FAC ¶ 40 goes on to refer to that same STOCK AGREEMENT as a “partnership agreement.” FAC ¶ 41 again refers to the STOCK AGREEMENT as a “partnership agreement.” FAC ¶ 59 alleges that the corporation’s assets should be distributed to the “partners.” This chaotic form of pleading—blurring the distinction between partnership and corporation—renders the entire FAC and all of its causes of action as uncertain, ambiguous and unintelligible. Therefore, the Demurrer should be sustained in its entirety pursuant to CCP § 430.10(f). 3.2. The FAC Fails to a Cause of Action Against PQRS CORP Because None of the Eleven Causes of Action Is Alleged Against PQRS CORP. The First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Causes of Action are expressly alleged against the ADAMS DEFENDANTS and Does 1 through 20, inclusive, and not against PQRS CORP. The Tenth and Eleventh Causes of Action are expressly alleged against INDIVIDUAL DEFENDANTS and Does 1 through 20, inclusive, 15
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and not against PQRS CORP. Therefore The FAC Fails to a Cause of Action Against PQRS CORP. 3.3. The First Cause of Action Fails to State a Cause of Action for Conversion Because It Fails to Allege Plaintiff’s Ownership or Right to Possession of Any Allegedly Converted Property. To plead a cause of action for conversion, three elements are required: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages resulting from the conversion. Burlesci v. Petersen (1998) 68 Cal. App. 4th 1062 @ 1065; Oakdale Village Group v. Fong (1996) 43 Cal. App. 4th 539 @543-545. Here, the FAC fails to plead the first element. What property of Plaintiff’s was converted or stolen by the ADAMS DEFENDANTS? Plaintiff agreed to invest $245,000 in PQRS CORP (FAC ¶ 16), of which $145,000 was paid by TOM (FAC ¶ 17). In exchange therefore, Plaintiff received 35% of the stock in PQRS CORP (FAC ¶¶ 1, 16(2)(A), 17), which is his property that he still owns today. The FAC nowhere alleges that any of the Defendants have converted or stolen Plaintiff’s stock in PQRS CORP. 3.4. The First Cause of Action Is Uncertain, Ambiguous and Unintelligible Because It Makes Allegations Indicating Inconsistent Business Results for PQRS CORP. On the one hand, the FAC alleges (a) that PQRS CORP’S total capital investment was $700,000 (FAC ¶¶ 16-17), and (b) that in less than one year after the start of its business, $1,027,498.851 was converted from the PQRS CORP (FAC ¶ 32), which amount exceeds the $700,000 total capital investment by $327,498.85 and comprises approximately 147% of the total capital investment. Such a conversion within the first year of operation would be disastrous for any new business, including PQRS CORP. On the other hand, the FAC alleges that in that same first year of operation PQRS CORP not only became profitable (FAC ¶ 20), but developed a net worth of at least $2.4 million as of March 13, 2008 (FAC ¶ 59), which amounts to approximately 342% of the $700,000 invested capital. Such an astoundingly excellent first-year result for any new business and, as a matter of law, is diametrically inconsistent with the alleged massive conversion of PQRS CORP’S assets.
1

This it the sum of the $179,744.85, $40,527.00, $7,227.00, and $800,000.00 allegedly converted (FAC ¶ 32).

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FAC ¶ 17 alleges that Plaintiff’s total investment was $245,000, of which FAC ¶ 16(2)(C) alleges $145,000 was loaned to Plaintiff by TOM, which means Plaintiff’s cash outlay was the difference of $100,000.
2

3.5. The Second Cause of Action for Fraud and Deceit (Intentional Misrepresentation) Fails to State Facts Sufficient to Constitute a Cause of Action Against the ADAMS DEFENDANTS for Fraud or Deceit or Intentional Misrepresentation. “[A]ctions for damage for fraud and deceit involves three distinct elements: (1) actual reliance, (2) damage resulting from such reliance, and (3) right to rely or justifiable reliance.” Panoutsopoulos v. Chambliss (1 Dist.,2007) 157 Cal.App.4th 297 @ 308. 3.5.1. The Allegation of Damages Is Conclusory, Is Wholly Unsupported by Any Factual Allegations of Damages, and Contradicts Other Allegations in the FAC. Here, Plaintiff alleges damages exceeding $2 million (FAC ¶ 42), but this is nothing more than a legal conclusion. Such damages are wholly unsupported by the facts alleged in the FAC. On the contrary, the FAC alleges that Plaintiff acquired 35% of PQRS CORP’S stock in exchange for a cash investment by Plaintiff of $100,0002, and that in its first year of operation PQRS CORP not only became profitable ( FAC ¶ 20), but developed a net worth of at least $2.4 million as of March 13, 2008 (FAC ¶ 59), which means Plaintiff’s stock is worth at least $840,000 (35% of $2.4 million)—more than an eightfold multiple of his cash outlay—and which contradicts the allegation of damages exceeding $2 million. Thus, as a matter of law, the FAC fails to plead the required element of damages. 3.5.2. The Alleged Causal Connection Between the Intentional Misrepresentation and Plaintiff’s Alleged Damages Makes No Reasonable Sense on Its Face. Even if damages exist, “[i]n fraud, the pleading must show a cause and effect relationship between the fraud and damages sought; otherwise no cause of action is stated. General pleading of the legal conclusion of fraud is insufficient; the facts constituting the fraud must be alleged, and the policy of liberal construction of pleadings will not ordinarily be invoked to sustain a pleading defective in any material respect. The pleading should be sufficient to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” Commonwealth Mortgage

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Assurance Co. v. Superior Court (2nd Dist., 1989) 211 Cal.App.3d 508 @ 518, citations omitted, emphasis added. Here, the FAC alleges, in effect, that TOM’S failure to invest an “unlimited capital asset” of at least $2 million (FAC ¶ 38), plus an additional $1 million (FAC ¶ 40), proximately resulted in damages to plaintiff exceeding $2 million (FAC ¶ 42). How can that be? Plaintiff only invested $100,000 and was paid a salary of $10,000 per month for many months! This alleged “causal connection” makes no reasonable sense on its face. Indeed, as discussed above, the FAC alleges that PQRS CORP is profitable today and worth over $2.4 million. If that is the case, then what is the compelling reason that additional investments exceeding $3 million were (or are) urgently needed? Certainly, if a profitable business wishes to expand, additional investment might be needed, but that is no basis for pleading fraud or deceit. 3.5.3. Plaintiff’s Reliance on the Alleged Misrepresentation Was Not Justifiable Because the Alleged Contract Induced Thereby Would Have Been Void for Lack of Consideration from Plaintiff. The FAC alleges Plaintiff was induced to enter a “Partnership Agreement” wherein TOM agreed to invest “unlimited capital assets” (potentially billions of dollars) but alleges no corresponding “unlimited” consideration by the Plaintiff (whose investment was limited to a mere $100,000). Such a “contract” would be void for lack of consideration under Civil Code § 1550(4). 3.6. The Third Cause of Action for Fraud and Deceit (Fraudulent Concealment) Is Uncertain, Ambiguous and Unintelligible because FAC ¶ 46 Is Rambling and Incomprehensible. FAC ¶ 46 is rambling and incomprehensible. It appears to allege something or other about the Defendants having knowledge about something, failing to disclose something, and misappropriating corporate money. However, its single run-on sentence is so poorly written that the Defendants cannot comprehend what it is alleging with sufficient certainty to answer the charge. The allegations in FAC ¶¶ 47-49 appear to be somehow related to those in ¶ 46 but cannot be comprehended due to the uncertainty of ¶ 46.

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3.7. The Third Cause of Action Fails to State a Cause of Action for Fraudulent Concealment Against the ADAMS DEFENDANTS “The elements of ordinary causes of action for [fraudulent concealment are] (1) a false representation, concealment or nondisclosure, (2) knowledge of its falsity, (3) intent to induce reliance, (4) justifiable reliance, and (5) damage...” Masters v. San Bernardino County Employees Retirement Assn. (4 Dist.,1995) 32 Cal.App.4th 30 @ 40, emphasis added. 3.7.1. The Allegation of Damages Is Conclusory, Is Wholly Unsupported by Any Factual Allegations of Damages, and Contradicts Other Allegations in the FAC. As discussed above, Plaintiffs allegation of “damages” exceeding $2 million (FAC ¶ 48) is merely a legal conclusion, is wholly unsupported by any factual allegations of damages, and contradicts other allegations in the FAC. 3.7.2. Justifiable Reliance Is Not Alleged. Even if damages exist, the FAC fails to allege any justifiable reliance by Plaintiff on anything that, had the ADAMS DEFENDANTS not concealed anything, would have caused Plaintiff to act differently. What decision did Plaintiff make to his detriment that he would not have made if he had known all the facts? This is simply not alleged. 3.8. The Fourth Cause of Action Fails to State a Cause of Action for Breach of Fiduciary Duty Against the ADAMS DEFENDANTS. “The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach.” Amtower v. Photon Dynamics, Inc. (6th Dist., 2008) 158 Cal.App.4th 1582 @ 1599, emphasis added. 3.8.1. The Allegation of Damages Is Conclusory, Is Wholly Unsupported by Any Factual Allegations of Damages, and Contradicts Other Allegations in the FAC. As discussed above, Plaintiffs allegation of “damages” exceeding $2 million (FAC ¶ 54) is merely a legal conclusion, is wholly unsupported by any factual allegations of damages, and contradicts other allegations in the FAC. 3.8.2. Proximate Cause Is Not Alleged. Even if damages exist, the FAC fails to allege that any breach of fiduciary duty by the ADAMS DEFENDANTS proximately caused such damages. Even if the ADAMS 19
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DEFENDANTS “breached their duties by failing to disclose ... information and documents, and by misappropriating the corporate assets” as alleged in FAC ¶ 53, what harm did it cause to Plaintiff? On the contrary, the FAC alleges that PQRS CORP is profitable today and worth over $2.4 million and that Plaintiff holds a 35% shareholder interest therein. 3.9. The Fifth Cause of Action Fails to State a Cause of Action for Breach of Contract Against the ADAMS DEFENDANTS. “[T]he essential elements to be pleaded in an action for breach of contract are: (1) the contract; (2) plaintiff 's performance of the contract or excuse for nonperformance; (3) defendants ' breach; and (4) the resulting damage to plaintiff. Lortz v. Connell (1.Dist, 1969) 273 Cal.App.2d 286 @ 290. 3.9.1. The “Contract” Alleged Cannot Exist As a Matter of Law. FAC ¶ 56 alleges the “defendants breached the agreement with Plaintiff...” (emphasis added). As discussed above, only “agreement” alleged anywhere in the FAC is a “partnership agreement.” Indeed the same ¶ 56 refers to “sharing the profits” which is partnership terminology (the appropriate corporate terminology would be the distribution of dividends). However, as discussed above, no partnership exists. Therefore, no “partnership agreement” exists and no contract is alleged as a matter of law. Without any contract, the Fifth Cause of Action for breach of contract must fail. 3.9.2. The Allegation of Damages Is Conclusory, Is Wholly Unsupported by Any Factual Allegations of Damages, and Contradicts Other Allegations in the FAC. As discussed above, Plaintiffs allegation of “damages” exceeding $2 million (FAC ¶ 57) is merely a legal conclusion, is wholly unsupported by any factual allegations of damages, and contradicts other allegations in the FAC. (Paradoxically, FAC ¶ 56 alleges that the defendants failed to invest $100,000, which is twenty-fold less than the $2 million FAC ¶ 38 alleges the defendants failed to invest.) Without any damages, the Fifth Cause of Action for breach of contract must fail. / / / / / / / / / / / / / / / / 20
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3.10. The Sixth Cause of Action for Declaratory Relief (Dissolution and Liquidation of Corporation) Is Uncertain, Ambiguous and Unintelligible Because It Is Uncertain Whether It Is Referring to a Corporation or to a Partnership. FAC ¶ 59 refers on the one hand to a corporation, the dissolution of the corporation and the distribution of the assets of the corporation. On the other hand, it refers to a partnership, alleging an “irreconcilable difference and dispute” between the parties, which is grounds for dissolving a partnership but not a corporation, and to the “pro-rata share of the partners.” Thus, the Sixth Cause of Action is uncertain because it is uncertain whether it is referring to a corporation or to a partnership. 3.11. The Sixth Cause of Action for Declaratory Relief (Dissolution and Liquidation of Corporation) Fails to State Facts Sufficient to Constitute a Cause of Action for Declaratory Relief or Dissolution of Corporation or Liquidation of Corporation. 3.11.1. PQRS CORP Cannot Be Declared Dissolved or Liquidated Because It Is Not Named as a Defendant to This Cause of Action. The Sixth Cause of Action is alleged “Against TOM ADAMS and KENNY ADAMS and Does 1 to 20, inclusive” (FAC p. 13, line 9). PQRS CORP is not named as a defendant to this cause of action (or to any other cause of action in the FAC). It is elementary that a corporation cannot be declared dissolved or liquidated unless it is named as a defendant. 3.11.2. Irreconcilable Differences and Dispute Between Shareholders Is Not Lawful Grounds for Dissolution or Liquidation of a Corporation. Plaintiff demands in FAC ¶ 59 the dissolution and liquidation of PQRS CORP on the basis of “irreconcilable differences and dispute between shareholders” and distribution to him of “no less than $875,000.” As explained above, if Plaintiff’s shares are worth that much after less than a year or operations, then the corporation has been very well managed and its board of directors should be commended. The fact that Plaintiff, who is not only a shareholder but also a director, disagrees with the other shareholders and directors about how the corporation should be managed is no grounds for dissolution or liquidation. The controlling shareholders ' failure to meet the minority shareholders ' reasonable expectations in managing the company is not grounds for involuntary dissolution. Bauer v. Bauer (1996) 46 Cal.App.4th 1106 @ 1113-1115. Involuntary liquidation is a drastic remedy and will not be 21
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ordered on the grounds of shareholder disagreements over business judgments or even extreme hostility among the shareholders ... especially where the complaining shareholders are represented on the board. Stuparich v. Harbor Furniture Mfg., Inc. (2000) 83 Cal.App.4th 1268 @ 1277–1280. 3.12. The Seventh Cause of Action Fails to State Facts Sufficient to Constitute a Cause of Action for Unfair Business Practice (CA Business Code § 17200) Against the ADAMS DEFENDANTS. FAC ¶ 63 makes the sweeping statement that the “conduct of the Defendants described above herein... constitutes unlawful, unfair and/or fraudulent business practices in violation of Section 17200...” This is a legal conclusion that is wholly unsupported by any factual allegations in the FAC. As discussed above, Plaintiff has no factual basis to support his allegations of a “secret transaction” and “misappropriation” of corporate funds. Furthermore, as discussed above, Plaintiff has not been damaged—except for his ego. He got fired as corporate Secretary for his mismanagement of the corporation, and now seeks to retaliate by means of his frivolous and very badly written FAC. Plaintiff still owns 35% of the stock in PQRS CORP that he alleges has a net worth of at least $2.4 million, which was attained in less than a year after he invested just $100,000 and got paid $10,000 per month for his services! What is unfair, unlawful or fraudulent about that? Nothing. In Khoury v. Maly 's of Calif., Inc. (1993) 14 Cal.App.4th 612, the Court of Appeal upheld the sustaining of a demurrer to an unfair business practice cause of action because the Plaintiff failed to articulate why the defendant’s conduct was unlawful. Here, the FAC descends into hopeless ambiguity, confusing corporation law with partnership law, failing as a matter of law to allege damages, and failing to allege any specific act by the defendants that constituted unfair business practice. This cause of action must therefore be dismissed. 3.13. The Eighth Cause of Action Fails to State a Cause of Action for Common Counts Against the ADAMS DEFENDANTS. The essential allegations of a common count are “(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.” 4 Witkin Cal. Procedure (3d ed. 1985) Pleading § 508, p. 543, emphasis added. “A cause of 22
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action is stated for money had and received if the defendant is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff” Schultz v. Harney (2.Dist, 1994) 27 Cal.App.4th 1611 @ 1623. 3.13.1. No Statement of Indebtedness in a Certain Sum Is Alleged. The FAC alleges that Plaintiff invested his funds in PQRS CORP stock, which stock he still owns (FAC ¶ 16(2)(A)). The FAC nowhere alleges that Plaintiff invested in any note, loan, bond, debenture or other form of indebtedness. In ¶¶ 66-68 the FAC makes allegations of various transfers of funds in the amounts of $179,744.85, $40,527.00, $7,227.00, and $800,000.00, but it fails to allege that any of these amounts comprises a debt payable to Plaintiff. Indeed, if such funds were improperly transferred from PQRS CORP (which they were not) then they would be owed to PQRS CORP, not to Plaintiff. The FAC makes no allegation of any “statement of indebtedness in a certain sum”—at least not in favor of Plaintiff. Astonishingly, the FAC makes allegations that would support a cause of action for common counts against Plaintiff—specifically, the FAC alleges that Plaintiff owes TOM $145,000 that was loaned to Plaintiff for the purchase of his stock (FAC ¶ 16(2)(C)). 3.13.1. Nonpayment Is Not Alleged. Even if a debt exists in favor of Plaintiff, the FAC makes no allegation that the ADAMS DEFENDANTS failed to repay it. Instead, the FAC alleges that TOM paid $145,000 on Plaintiff’s behalf (FAC ¶ 16(2)(C)) and that Plaintiff was paid $10,000 per month (FAC ¶ 16(2)(B)). 3.14. The Eighth Cause of Action for Common Counts (Money Had and Received) Is Uncertain, Ambiguous and Unintelligible. On its face, The Eighth Cause of Action (FAC ¶¶ 65-69) rambles about various things, but it is uncertain how any of this rambling is describing any common counts payable from the ADAMS DEFENDANTS to Plaintiff. / / / / / / / / / / / /

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3.15. The Ninth Cause of Action Fails to State a Cause of Action for Constructive Trust Against the ADAMS DEFENDANTS Because It Fails to Adequately Allege That Anything Owned By Plaintiff Was Wrongfully Detained. Constructive trust is governed by Civil Code § 22233, which provides, “One who wrongfully detains a thing is an involuntary trustee thereof, for the benefit of the owner.” Throughout the FAC, numerous allegations are made that the ADAMS DEFENDANTS misappropriated and/or secreted funds from PQRS CORP. Then, in the Ninth Cause of Action, Plaintiff changes his tune and instead nebulously alleges that the they “illegally transferred and converted the funds from Plaintiff” (FAC ¶ 71) and that “funds [were] converted, diverted and stolen from Plaintiff” (FAC ¶72) and that “money and assets [were] converted, looted and diverted from Plaintiff” (FAC ¶ 72). What funds? What money and assets? No specific allegations are made as to anything owned by Plaintiff that was wrongfully detained by the ADAMS DEFENDANTS. Title to those assets was clearly owned by PQRS CORP, thereby precluding constructive trust action by Plaintiff. Communist Party v. 522 Valencia, Inc. (1st Dist.,1995) 35 Cal.App.4th 980 @ 993). The only relevant asset owned by Plaintiff is his stock in PQRS CORP, and the FAC contains no allegation that Plaintiff’s stock was wrongfully detained. Therefore, no constructive trust exists, and this cause of action must therefore be dismissed. 3.16. The Tenth Cause of Action Fails to State a Cause of Action for Assault and Battery Against the INDIVIDUAL DEFENDANTS. It is clear from the face of the FAC that the incidents alleged to have occurred on March 13 and 14, 2008 comprised attempts by the INDIVIDUAL DEFENDANTS to compel Plaintiff to vacate the premises of PQRS CORP. FAC ¶ 16(2)(B) alleges that Plaintiff worked full time as Secretary of PQRS CORP. FAC ¶ 17 alleges that the ADAMS DEFENDANTS hold a controlling interest in PQRS CORP’S stock, and, as a matter of law, they therefore occupy a majority of the seats on its board of directors and hold the power to fire Plaintiff as Secretary. When a corporation fires a corporate officer under adverse circumstances, it is common business practice to escort out and lock out the former officer out to prevent him or her from retaliating by taking action that damages the business. FAC ¶¶ 26, 27 and 78 alleges just that—that the INDIVIDUAL DEFENDANTS changed the 24
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locks, locked Plaintiff out of PQRS CORP’S premises, and called the police who forcibly removed Plaintiff from the premises. Such acts are not only lawful, they are proper. Indeed, “One may use necessary force to prevent injury to his property.” Frickstad v. Medcraft (App. 1 Dist. 1929) 100 Cal.App. 188 @ 193. 3.16.1. Assault Is Not Adequately Alleged. The civil definition of assault is given by Restatement (Second) of Torts § 21 (1965), cited by Judicial Council of California Civil Jury Instruction 1301, which provides: An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension. FAC ¶ 86 alleges on information and belief in that the acts to remove Plaintiff from the premises were done “with intent to cause injury to Plaintiff.” But nothing is alleged that remotely supports that absurd allegation. On the contrary, the FAC clearly alleges that the ADAMS DEFENDANTS (acting with their attorney ROBERTS) had the power to fire Plaintiff and cause him to be removed from the premises. Thus, it is clear from the face of the FAC that the only reasonable “intent” of the INDIVIDUAL DEFENDANTS was to protect the business from retaliatory acts by Plaintiff. Therefore, as a matter of law, the first element of assault (acting with intent to cause harmful or offensive contact...) has not been alleged. This cause of action must therefore be dismissed. 3.16.1. Battery Is Not Adequately Alleged. The elements of a civil battery are: “1. Defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiff 's person; [¶] 2. Plaintiff did not consent to the contact; [and][¶] 3. The harmful or offensive contact caused injury, damage, loss or harm to the plaintiff.” Piedra v. Dugan (4th Dist., 2004) 123 Cal.App.4th 1483 @ 1495. Contact can be either “harmful” or “offensive.” Regarding “harmful” contact, FAC ¶ 84 makes the conclusory allegation that Plaintiff “suffered severe and serious injury to their [sic[] person” but offers no supporting details. What injury? Clearly his ego was injured, but that will not suffice for alleging battery. 25
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And if the alleged contact is merely “offensive” (but not “harmful”), then it must be unreasonable. Restatement (Second) of Torts § 19 provides: “A bodily contact is offensive if it offends a reasonable sense of personal dignity” (cited by Judicial Council of California Civil Jury Instruction 1300. No reasonable person would conclude that the INDIVIDUAL DEFENDANTS taking action to protect PQRS CORP’S business property by “pushing” or “pulling” Plaintiff away from the business premises is unreasonable. Furthermore, as alleged in FAC ¶ 27, the police came and removed Plaintiff from the premises. Therefore, as a matter of law, the first element of battery (harmful or offensive contact) has not been alleged. This cause of action must therefore be dismissed. 3.17. The Eleventh Cause of Action Fails to State a Cause of Action for Intentional Infliction of Emotional Distress Against the INDIVIDUAL DEFENDANTS. “The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff 's injuries were actually and proximately caused by the defendant 's outrageous conduct.” Berkley v. Dowds (2nd Dist., 2007) 152 Cal.App.4th 518 @ 533. The first element is missing from the FAC. Aside from its conclusory statements, the FAC alleges no extreme or outrageous conduct by the INDIVIDUAL DEFENDANTS with the intention of causing, or reckless disregard of the probability of causing, emotional distress to the Plaintiff. The INDIVIDUAL DEFENDANTS took action to protect PQRS CORP’S business property from Plaintiff. His emotional distress was caused by the damage to his ego from being fired. Firing a corporate officer is a normal and lawful act for any board of directors and certainly does not rise to the level of “extreme” or “outrageous” or “reckless” or “intending” to cause emotional distress. This cause of action must therefore be dismissed. Dated: _________________ Roberts & Associates [redacted] By: [redacted], Attorneys for Defendants 26
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Proof of Service
I, the undersigned, declare: I am a citizen of the United States of America, am over the age of eighteen (18) years, and am not a party to the within action. My address is [redacted]. On ___________, I caused to be served the following document(s): DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT, on the parties involved, enclosed in one or more envelopes addressed as follows: [redacted] [redacted] [redacted] [redacted] __XX__ BY MAIL: I caused each envelope, with postage fully prepaid, to be placed in the United States mail at Los Angeles, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on _____________, at Los Angeles, California,

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[attorney info redacted] [redacted] [redacted] [redacted] [redacted] [redacted] Attorneys for Defendants PQRS Corporation, Tom Adams and Kenny Adams, and for self, in pro per

SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES CENTRAL DISTRICT
JOHN SMITH, Plaintiff vs. PQRS CORPORATION, a California Corporation dba PQRS APPAREL; TOM ADAMS, an individual; KENNY ADAMS, an individual; PAUL ROBERTS, an individual; and DOEs 1 to 20, inclusive, Defendants The Demurrer by Defendants PQRS Corporation, Tom Adams, Kenny Adams and Paul Roberts to Plaintiff John Smith’s First Amended Complaint, came on regularly for noticed hearing on _______________ in Department ____ of this Court. Said Defendants appeared by counsel Paul Roberts, who also appeared in his own behalf in pro per. Plaintiff John Smith not appear. / / / / / / / / / / / / 1
ORDER SUSTAINING DEMURRER

Case Number: Assigned to:

[redacted] [redacted]

[PROPOSED] ORDER SUSTAINING DEMURRER Complaint filed: [redacted] Hearing Date: Hearing Time: Hearing Dept.: ________ ________ [redacted]

appeared in pro per

appeared by counsel _____________________

did

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On proof made to the satisfaction of the Court that the demurrer ought to be sustained, IT IS ORDERED that the demurrer is SUSTAINED in its entirety without leave to amend. IT IS SO ORDERED. Dated: _________________ Judge of the Superior Court with

2
ORDER SUSTAINING DEMURRER

California Forms of Pleading and Practice--Annotated Copyright 2012, Matthew Bender & Company, Inc., a member of the LexisNexis Group. Volume 17: Defaults and Default Judgements thru Duress, Menace, Fraud, Undue Influence, and Mistake-Chs. 205-219 Chapter 206 DEMURRERS AND MOTIONS FOR JUDGMENT ON THE PLEADINGS PART V. FORMS A. Demurrers 17-206 California Forms of Pleading and Practice--Annotated § 206.125 § 206.125 Special Demurrer to Complaint or Cross Complaint [Code Civ. Proc. §§ 430.30(a), 430.40(a)]--Another Action Pending [Code Civ. Proc. § 430.10(c)]

[1] FORM Special Demurrer to Complaint or Cross Complaint [Code Civ. Proc. §§ 430.30(a), 430.40(a)]--Another Action Pending [Code Civ. Proc. § 430.10(c)] ___________________ [Defendant or Cross defendant ___________________ (name)] demurs to the [___________________ (First or other) Cause of Action set forth in the] ___________________ [complaint or cross complaint of ___________________ (name), cross complainant,] herein on the ground that there is another action pending between the same parties on the same cause of action, to wit, an action entitled ___________________, Plaintiff, vs. ___________________, Defendant, No. ____________________, now pending in the ___________________ Court of ___________________, and in which summons was served on ___________________ [date]. [This court is hereby requested to take judicial notice of this other pending action, and, for that purpose, certified copies of the (records and) files in that action are attached to the separate Request for Judicial Notice that is filed with this demurrer.] [2] Use of Form The form in [1], above, is for insertion in § 206.120[1] as the body of the demurrer when it appears on the face of the challenged pleading or from judicially noticed matter [Code Civ. Proc. § 430.30(a)] that there is another action pending between the same parties on the same cause of action [Code Civ. Proc. § 430.10(c)]. For further discussion, see § 206.14[4], above. Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with Cal. Rules of Ct., Rule 3.1306(c) [Cal. Rules of Ct., Rule 3.1113(j)]. Cal. Rules of Ct., Rule 3.1306(c) requires a party requesting judicial notice of material under Evid. Code §§ 452 or 453 to provide the court and each party with copy of the material; and if the material is part of a file in the court in which the matter is being heard, the party must specify in writing the part of the court file sought to be judicially noticed, and the party must make arrangements with the clerk to have the file in the courtroom at the time of the hearing. For analysis and forms of judicial notice, see Ch. 321, Judicial Notice . Special demurrers are generally not allowed in limited civil cases [see Code Civ. Proc. §§ 91(a), (d), 92(c)]. [3] Cross References

For an alternative form of demurrer on the ground of another action pending, a form of affirmative defense on this ground, and a form of interlocutory judgment staying action, see Ch. 3, Abatement of Actions

1 2 3 4 5 Attorneys for Defendants, 6 7 8 9 10 11 12 13 Plaintiff, 14 vs. 15 16 17 18 19 . 20 21 22 Action Filed: May 1, 2012 Trial Date: None Defendants. DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [Filed Concurrently With Motion To Strike] DATE: June 26, 2012 TIME: 8:30 a.m. DEPT.: NE-P CASE NO. Assigned for all purposes: JUDGE: Hon. JAN A. PLUIM DEPT.: NE-P SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, NORTHEAST DISTRICT

23 TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: 24 PLEASE TAKE NOTICE that on June 26, 2012, at 8:30 a.m., or as soon thereafter as the

25 matter may be heard in Department “NE-P” of the above-entitled court located at 300 East Walnut 26 St, Pasadena, CA 91101, Defendants 27 28 , pursuant to California Code of Civil Procedure sections 430.10 and 1
DEFENDANTS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINT

1 430.30, California Rules of Court Rule 3.1320, and on the grounds set forth below, will Demur to 2 Plaintiffs’ Complaint. 3 This Demurrer is based upon this Notice, the attached Memorandum of Points and

4 Authorities, the concurrently filed Notice of Motion and Motion to Strike, the pleadings, papers, 5 and records on file herein, and upon such further oral and documentary evidence as may be 6 presented at the time of the hearing of the Demurrer. 7 8 9 10 11 12 hereby demur to Plaintiffs’ Complaint on the following grounds: FIRST CAUSE OF ACTION Plaintiffs’ First Cause of Action for Elder Abuse pursuant to Welfare and Institutions Code Defendants DEMURRER

13 section 15600 et seq. fails to state facts sufficient to constitute a cause of action. Cal. Civ. Proc. § 14 430.10 (e). 15 16 THIRD CAUSE OF ACTION Plaintiffs’ Third Cause of Action for Willful Misconduct fails to state facts sufficient to

17 constitute a cause of action. Cal. Civ. Proc. § 430.10 (e). 18 19 FOURTH CAUSE OF ACTION Plaintiffs’ Fourth Cause of Action for Wrongful Death fails to state facts sufficient to

20 constitute a cause of action. Cal. Civ. Proc. § 430.10 (e). 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 2
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DEFENDANTS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINT

1 2

FIFTH CAUSE OF ACTION Plaintiffs’ Fifth Cause of Action for Violation of Patient’s Rights (Health & Safety Code

3 section 1430) fails to state facts sufficient to constitute a cause of action. Cal. Civ. Proc. § 430.10 4 (e). 5 6 DATED: May______, 2012 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
DEFENDANTS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINT

By:

Attorneys for Defendants,

1 2 3 4

MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION On May 1, 2012, , (referred herein

5 collectively as “Plaintiffs”) filed a Complaint against 6 7 (referred herein collectively as “Defendants”). Plaintiffs

8 alleged causes of action for (1) Elder Abuse; (2) Negligence; (3) Willful Misconduct; (4) 9 Wrongful Death; and (5) Violation of Health & Safety Code section 1430(b). 10 The Complaint is severely defective. No facts are alleged to show that Defendants (“ ” or Decedent”). No facts are alleged

11 recklessly abused or neglected

12 connecting Decedent’s causes of death to the alleged injuries she sustained during her residency at 13 Defendants’ Skilled Nursing Facility, 14 Plaintiffs do not sufficiently allege that (“ ”). In short,

recklessly denied Decedent medical care. Instead, . Such

15 Plaintiffs complain about the negligent medical treatment Decedent received from 16 complaints are governed by principles of negligence, not elder abuse. 17

Accordingly, Defendants’ Demurrer should be sustained as to these causes of action

18 without leave to amend. 19 20 LEGAL STANDARD A demurrer tests the legal sufficiency of factual allegations in a complaint. Schmidt v.

21 Found. Health, 42 Cal.Rptr.2d 172, 175 (Ct. App. 1995). In reviewing the sufficiency of a 22 complaint, a demurrer admits all material facts properly pleaded, but not contentions, deductions, 23 or conclusions of fact or law. Gruenberg v. Aetna Ins. Co., 510 P.2d 1032, 1036 (Cal. 1973). A 24 party whom against a complaint has been filed may object by demurrer to the pleading on the 25 grounds that the complaint is uncertain, ambiguous, and unintelligible, or fails to state facts 26 sufficient to constitute a cause of action. Cal. Civ. Proc. § 430.10(e), (f). A demurrer “may be 27 taken to the whole complaint . . . or to any causes of action stated therein.” Cal. Civ. Proc. § 28 430.50(a). 4
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DEFENDANTS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINT

1 2 I. 3 4

ARGUMENT PLAINTIFFS’ FIRST CAUSE OF ACTION FAILS TO STATE A CLAIM FOR ELDER ABUSE The Elder and Dependent Adult Abuse Act established enhanced remedies under specific

5 circumstances contained within the Welfare & Institutions Code section 15600, et seq. As the 6 California Supreme Court explained, the Act’s goal was to provide heightened remedies for “acts 7 of egregious abuse against elder and dependent adults, while allowing acts of negligence in the 8 rendition of medical services to elder and dependent adults to be governed by laws specifically 9 applicable to such negligence.” Delaney v. Baker, 971 P.2d 986, 991 (Cal. 1999). Thus, to 10 recover these heightened remedies, a plaintiff must prove -- by clear and convincing evidence -11 that a defendant committed physical abuse or neglect of an elder or dependent adult with 12 “recklessness, oppression, fraud, or malice” Welf. & Inst. § 15657; Delaney, 971 P.2d at 991. 13 A plaintiff must also show that an employer “had advance knowledge of the unfitness of the

14 employee and employed him or her with a conscious disregard of their rights for safety of others 15 or authorized or ratified the wrongful conduct for which the damages are awarded or was 16 personally guilty of oppression, fraud, or malice.” Cal. Civ. Code. § 3294(b). If the defendant is a 17 corporate employer, “the advance knowledge and conscious disregard, authorization, ratification 18 or act of oppression, fraud, or malice must be on the part of the officer, director, or managing 19 agent of the corporation. Welf. & Inst. Code §15657(c); Cal. Civ. Code. § 3294(b). 20 Accordingly, based upon the provisions of Welfare and Institutions Code section 15657 and

21 its incorporation of Civil Code section 3294(b), the elements of plaintiff 's right to recovery 22 pursuant to the Elder and Dependent Adult Abuse Act include: 23 24 25 26 27 28 (4) where each defendant is an employer, each defendant had advance knowledge of the unfitness of the employee and employed him or her with 5
DEFENDANTS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINT

(1) that plaintiff is an elder or dependent adult as defined by the act; (2) that each defendant is liable for physical abuse, neglect, or fiduciary abuse; (3) that each defendant has been guilty of recklessness, oppression, fraud or malice in the commission of the abuse;

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

a conscious disregard of the rights for safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud or malice; and (5) damage suffered by the Plaintiff as a result of the abuse or neglect. Welf. & Inst. Code §15657(c); Cal. Civ. Code. § 3294(b); Delaney, 971 P.2d at 991; see also Covenant Care, Inc. v. Sup. Ct. (2004) 32 Cal.4th 771. A. Plaintiffs Fail to Plead Facts Sufficient Amounting to Egregious Abuse or Neglect The statutory definition of neglect is set forth at section 15610.57, which states, in pertinent part, that “neglect” is the “negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” Welf. & Inst. Code § 15610.57, subd. (a)(1).) Section 15610.57 then lists several examples that would constitute neglect, including: (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter; (2) Failure to provide medical care for physical and mental health needs; (3) Failure to protect from health and safety hazards; and (4) Failure to prevent malnutrition or dehydration. Id. at § 15610.57, subd. (b)(2)&(3).) As the California Supreme Court instructed, neglect under the Elder Abuse Act “refers not to the substandard performance of medical services but, rather, to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” Covenant Care, supra, 32 Cal.4th at 783, 789 (“In order to obtain the Act 's heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.”) (emphasis added). As such, the Court explained that “neglect speaks not of the undertaking of medical services, but of the failure to provide medical care.” Id. (emphasis added). Recently, the California Court of Appeal outlined several factors that must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act. Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-07. The court explained that a plaintiff must show that the defendant: (1) had responsibility for meeting the basic needs of the

6
DEFENDANTS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINT

1 elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew of 2 conditions that made the elder or dependent adult unable to provide for his or her own basic needs; 3 (3) denied or withheld goods or services necessary to meet the elder or dependent adult’s basic 4 needs, either with knowledge that injury was substantially certain to befall the elder or dependent 5 adult, or with conscious disregard of the high probability of such injury; and (4) the neglect caused 6 the elder or dependent adult to suffer physical harm, pain, or mental suffering. Id. 7 Here, Plaintiffs’ sole allegations against Defendant concern alleged negligent care and provided to Decedent . There are no factual allegations pertaining to the

8 treatment

9 reckless withholding or denial of medical care, which is a requirement to sustain a cause of 10 action for Elder Abuse. For instance, Plaintiffs allege that during residency at ,

11 she developed a MRSA infection, Stage IV pressure ulcer, and sepsis, which escalated to the point 12 of causing her death on April 12, 2012. (Pltfs.’Compl. ¶¶ 14, 42). However, no other facts are 13 alleged. No facts are alleged that Defendants did not provide medical treatment to Decedent’s 14 infection or pressure ulcer. No facts are alleged that medical care was denied, let alone when and 15 by whom. As such, it appears that Plaintiffs are complaining about the manner in which medical 16 care and treatment ACH provided to Decedent / Decedent received by ACH. These complaints 17 are governed by negligence, not elder abuse. 18 Accordingly, the circumstances of this case – alleged negligent medical care – does not

19 amount to egregious conduct necessary to support a cause of action for Elder Abuse. Delaney, 20 971 P.2d 986, 993 (explaining that “the Elder Abuse Act’s goal was to provide heightened 21 remedies for . . . acts of egregious abuse against elder and dependent adults”). Plaintiffs’ attempt 22 to elevate a professional negligence claim into an elder abuse claim by peppering the Complaint 23 with conclusory allegations that Defendants acts were willful and reckless must fail. 24 25 26 B. Plaintiffs Fail to Plead Facts Sufficient to Show Recklessness, Oppression, Fraud, or Malice Even if Defendants “neglected” Decedent , which they did not as explained above,

27 Plaintiffs have not established with sufficient facts that Defendants did so “recklessly.” 28 In Delaney, the court explained that “recklessness” requires “culpability greater than 7
DEFENDANTS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINT

1 simple negligence.” 971 P.2d at 991. Specifically, the court described recklessness as a 2 “deliberate disregard of the high degree of probability that an injury will occur.” Id. As such, 3 “recklessness, unlike negligence, involves more than inadvertence, incompetence, unskillfulness, 4 or a failure to take precautions but rather rises to the level of a conscious choice of a course of 5 action . . . with knowledge of the serious danger to others involved in it.” Id. 6 As the court in Carter further illustrated, conduct amounting to reckless neglect must be

7 egregious, such as: 8 9 10 11 12 13 14 15 16 17 18 Id. at 405-06. The circumstances of this case do not amount to “egregious” conduct as Carter illustrated. • Failing to assist a 90-year-old, blind and demented woman with eating, using physical and chemical restraints to punish the elder and prevent her from obtaining help, and physically and emotionally abusing the elder by bruising her, withholding food and water, screaming at her, and threatening her. • Frequently leaving an 88-year-old woman with a broken ankle lying in finally, to a nursing home ombudsman. • Abusing, beating, unlawfully restraining, and denying medical treatment to a 78-year-old man admitted to a skilled nursing facility. • Failing to provide an elderly man suffering from Parkinson 's disease with sufficient food and water and necessary medication, leaving him unattended and unassisted for long periods of time and in his own excrement so that ulcers exposing muscle and bone became infected.

19 Plaintiffs fail to provide any facts to demonstrate that Defendants “willfully and recklessly” 20 caused Decedent 21 denied any medical care. 22 Accordingly, Plaintiffs’ Complaint does not state facts sufficient to show that Defendants to develop infections and a pressure ulcer. As such, Decedent was not

23 acted with a “deliberate disregard of the high degree of probability that an injury will occur.” See 24 Delaney, supra, 971 P.2d at 991. A 72 year old “in need of skilled nursing care” who developed a 25 common infection and pressure ulcer is a far cry from reckless egregious abuse. (Pltfs.’Compl. ¶¶ 26 12, 14). Therefore, as it stands now, Plaintiffs cannot establish that Defendants are guilty of any 27 wrongdoing. And even if Plaintiffs could establish some wrongdoing, which they cannot, at best 28 they can establish “incompetence, unskillfulness or inadvertence,” which is insufficient to show 8
DEFENDANTS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINT

1 recklessness since such conduct merely gives rise to negligence. See Delaney, 971 P.2d at 991. 2 There are no facts alleged to show with “clear and convincing evidence,” that Defendants acted 3 with “intentional, willful,” or of a “despicable or injurious nature.” Delaney, 971 P.2d at 991. 4 Again -- at most -- these alleged acts or omissions or alleged give rise to professional negligence. 5 Plaintiffs’ attempt to elevate a professional negligence claim into one for Elder Abuse must

6 therefore fail. As such, when, as here, the Complaint gives rise to only negligence conduct, it is 7 insufficient to support an Elder Abuse cause of action. 8 9 10 C. A Claim for Elder Abuse Must State Facts that Show Involvement by an Officer, Director, or Managing Agent of a Corporate Defendant To state an Elder Abuse claim, Plaintiff must also allege facts showing that an officer, was involved in the abuse, authorized the abuse, ratified the

11 director, or managing agent of

12 abuse, or hired the person who did the abuse with advance knowledge of the persons unfitness and 13 hired him or her with a conscious disregard of the rights and safety of others. Welf. & Inst. Code 14 § 15657(c), Cal. Civ. § 3294(b). 15 Plaintiffs have not met this requirement. Although Plaintiffs, in a conclusory fashion,

16 allege that an officer, director, or managing agent ratified any alleged abuse, no specific facts are 17 given. 18 Accordingly, Defendants’ Demurrer as to this cause of action should be sustained without

19 leave to amend. 20 II. 21 22 23 PLAINTIFFS’ THIRD CAUSE OF ACTION FAILS TO STATE A CLAIM FOR WILLFUL MISCONDUCT AND IS DUPLICATIVE. A. Plaintiffs Fail to State a Cause of Action for Willful Misconduct

The concept of willful misconduct is well-defined in California law. “Willful or wanton

24 misconduct is intentional wrongful conduct, done either with a knowledge that serious injury to 25 another will probably result, or with a wanton and reckless disregard of the possible results.” 26 Nazar v. Rodeffer, 229 Cal.Rptr. 209, 212 (Ct. App. 1996). The following elements must be 27 established to raise a negligent act to the level of willful misconduct: (1) Actual or constructive 28 knowledge of the peril to be apprehended; (2) Actual or constructive knowledge injury is a 9
DEFENDANTS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINT

1 probable, as opposed to possible, result of the dangers; and (3) Conscious failure to act to avoid 2 the peril. Id. 3 Accordingly, by definition, willful misconduct means something different from and more

4 than negligence, however gross. Colich & Sons v. Pacific Bell, 244 Cal.Rptr. 714, 723 (Ct. App. 5 1988). When a plaintiff pleads willful misconduct, he must state acts more fully than in ordinary 6 or gross negligence. Id. For that reason, willful misconduct is not marked by a mere absence of 7 care, but rather involves a positive intent actually to harm another or to do an act with an active 8 and absolute disregard for the consequences Calvillo-Silva v. Home Grocer, 968 P.2d 65, 76 9 (Cal. 1999) (superseded by statute on separate grounds). A mere intent to do an act which 10 constitutes negligence therefore does not establish willful misconduct. Id. at 76-77. 11 Here, as noted above, Plaintiffs have failed to state any facts which support the proposition

12 that MCH conduct was reckless, oppressive, fraudulent, or malicious. Instead, as noted above, 13 Plaintiffs set forth conclusory allegations without any basis in fact. Mere contentions, deductions, 14 or conclusions of fact or law are insufficient. See Gruenberg, 510 P.2d 1032, 1036. As with the 15 Elder Abuse Cause of Action, Plaintiffs again merely provides a “laundry list” of legal 16 conclusions. 17 18 B. Plaintiffs’ Willful Misconduct Cause of Action is Duplicative

Plaintiffs’ cause of action for willful misconduct fails because it is redundant and

19 duplicative. Since Plaintiffs’ allegations, as noted above, give rise to mere professional 20 negligence, she is barred from pleading general negligence under a willful misconduct cause of 21 action. See Flowers v. Torrance Memorial Hosp. Med. Center, (1994) 8 Cal. 4th. 992, 1001 22 (explaining that causes of action for general negligence and professional negligence comprise 23 essentially one form of action that cannot be pled separately.) Plaintiffs’ Willful Misconduct 24 Cause of Action therefore adds nothing to the complaint by way of fact or theory of recovery is 25 improper and subject to demurrer. See, e.g., Rodriguez v. Campbell Indus., 151 Cal.Rptr. 90, 94 26 (Ct. App. 1978). 27 / / / 28 / / / 10
DEFENDANTS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINT

1 III. 2 3

PLAINTIFFS HAVE FAILED TO ALLEGE FACTS SUFFICIENT TO STATE A CAUSE OF ACTION FOR WRONGFUL DEATH BY DEFENDANTS Wrongful death is a statutory cause of action that may be asserted when another’s wrongful

4 act or neglect causes the decedent’s death. Barrett v. Sup. Ct. (1990) 222 Cal.App.3d 1176, 11855 86. This cause of action belongs to certain surviving heirs or the decedent’s personal 6 representative. Code of Civil Procedure § 377.60. To support a cause of action for wrongful 7 death, Plaintiffs must establish (1) a wrongful act or neglect on the part of one or more persons 8 that (2) causes (3) the death of another person. See Code Civ. Proc. § 377.60; Barrett v. Sup. Ct. 9 (1990) 222 Cal.App.3d 1176, 1185-86. 10 11 A. Defendants Did Not Cause Decedent’s Death

Even if Plaintiffs can establish a wrongful act or neglect on the part of Defendant, which

12 they cannot, Plaintiffs cannot establish that such conduct caused Decedent’s death. 13 To support a cause of action for wrongful death, a Plaintiff must not only prove that a

14 defendant was negligent, but that the negligence was the legal cause of any alleged injuries. A 15 Plaintiff in a medical negligence and wrongful death action must prove causation “within a 16 reasonable medical probability based upon competent expert testimony.” Jones v. Ortho 17 Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402. A “mere possibility” that a defendant 's 18 negligence caused a plaintiff 's injury is not sufficient. Morgenroth v. Pacific Medical Center, Inc. 19 (1976) 54 Cal.App.3d 521, 533. Reasonable medical probability is defined as something more 20 than a 50/50 possibility. Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1504. Reasonable medical 21 probability in a wrongful death claim requires the plaintiff to show that the decedent would have 22 had a greater than 50 percent chance of survival had the defendant complied with the standard of 23 care. Id. 24 Moreover, Health & Safety Code section 103550 provides a presumption regarding the

25 cause of death where there is a death certificate: 26 27 Any ...death ...record that was registered within a period of one year from the date of the event under the provisions of this part . . . is prima facie evidence in all courts and places of the facts stated therein.

28 (Emphasis added.) 11
DEFENDANTS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINT

1

Here, Decedent’s death certificate indicates the immediate cause of death as

2 “Cardiorespiratory arrest,” with underlying causes of “Cardiac Arrhythmia,” “Pneumonia,” and 3 “Arteriosclerotic Heart Disease.” However, the Complaint makes no attempt to connect the listed 4 causes of death to any act or omission of 5 under the care of or the alleged injuries Decedent sustained while

. (See Pltfs.’Compl. ¶¶ 61-65). Not one fact is alleged to sufficiently show

6 the alleged injuries – Sepsis and pressure ulcer – caused Decedent’s death. Plaintiffs failure in this 7 regard is not surprising since the immediate and underlying causes of death listed in death 8 certificate cannot be attributed to a sepsis and a pressure ulcer. 9 Despite this, Plaintiffs’ allege that “[t]he pressure ulcer developed and suffered

10 from during her stay at [

} was a cause of her death on April 12, 2012.” (Pltfs.’Compl. ¶ 42).

11 However, the attached death certificate, as noted above, does not list the pressure ulcer as a cause 12 of death. In addition, Plaintiffs allege that the alleged injuries, “especially her Stage IV pressure 13 ulcer and resulting sepsis, escalated to a point where they caused her death.” (Pltfs.’Compl. ¶ 14). 14 Again, Plaintiffs are wrong. The death certificate does not list “sepsis” as a cause of death; 15 instead, it lists “sepsis” as a “significant condition contributing to death but not resulting in the 16 underlying cause given in 107 [cause of death section].” 17 Accordingly, Defendants’ Demurrer as to this cause of action should be sustained without

18 leave to amend as no amendment can cure the defects. 19 IV. 20 21 22 PLAINTIFFS’ FIFTH CAUSE OF ACTION FOR VIOLATION OF PATIENTS ' RIGHTS PURSUANT TO SECTION 1430(b) OF THE HEALTH AND SAFETY CODE FAILS TO STATE A CAUSE OF ACTION Plaintiffs’ claim for Violation of Patients’ Right is improper because such a cause of action

23 may lie only where the state department has taken action and the action has not been corrected to 24 complaining person’s satisfaction. See Health & Safety Code, § 1430. For the state department to 25 take action, an individual must file a request for inspection pursuant to Health and Safety Code 26 section 1419. Upon receipt of a complaint, the state department assigns an inspector to make a 27 preliminary review of the complaint and thereafter will notify the complainant of the name of the 28 inspector. See Health and Safety Code § 1420. If a violation exists, the facility is given a time 12
DEFENDANTS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINT

1 period to correct said violations. See Health and Safety Code § 1424. If and only in the event 2 where the state department has taken action and the violations have not been corrected to its 3 satisfaction can a person bring a suit for injunction or civil damages. See Health and Safety Code, 4 § 1430. 5 In the present case, Plaintiffs allege that Defendants violated the Decedent’s rights within

6 various state and federal regulations. This statement, in itself, fails to comply with the 7 requirements set forth by law in bringing forth a cause of action for Violation of Patients’ Rights. 8 Plaintiffs fail to state any facts to substantiate their allegations that the treatment Defendants 9 provided her violated her resident rights. Plaintiffs’ general allegations are insufficient to support 10 a cause of action for statutory violations. 11 Based on the foregoing, this Court should sustain Defendants’ Demurrer to the cause of

12 action for Violation of Patients’ Rights pursuant to Health and Safety Code section 1430(b) 13 without leave to amend. 14 15 CONCLUSION Based on the foregoing reasons, Defendants respectfully request that this Court sustain its

16 Demurrer to the Complaint as set forth in the notice or as this Court deems appropriate. 17 DATED: May _____, 2012 18 19 20 21 22 23 24 25 26 27 28 13
DEFENDANTS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINT

BY:

Attorneys for Defendants,

1 2 3 4 5 6

CALIFORNIA STATE COURT PROOF OF SERVICE

Case No.

- File No.:

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to the action. My business address is 221 North Figueroa Street, Suite 1200, Los Angeles, CA 90012. On May 10, 2012, I served the following document(s):

7 8 9 I served the documents on the following persons at the following addresses (including fax 10 numbers and e-mail addresses, if applicable): 11 12 13 14 15 16 17 18  19 The documents were served by the following means: (BY U.S. MAIL) I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses listed above and (specify one): Attorneys for Plaintiffs Attorneys for Plaintiffs DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

 Deposited the sealed envelope or package with the U.S. Postal Service, with the 20 postage fully prepaid.

 Placed the envelope or package for collection and mailing, following our ordinary business practices. I am readily familiar with the firm’s practice for collection and processing 22 correspondence for mailing. Under that practice, on the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the U.S. Postal 23 Service, in a sealed envelope of package with the postage fully prepaid.
21 24 25 Executed on May 10, 2012, at Los Angeles, California. 26 27 28 i
DEFENDANTS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINT

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

1 2 3 4 5 6 7 A. 8 9 10 C. 11 12 13 A. 14 B. 15 III. 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. II. B.

TABLE OF CONTENTS Page INTRODUCTION ........................................................................................................................... 4 LEGAL STANDARD...................................................................................................................... 4 ARGUMENT................................................................................................................................... 5 I. PLAINTIFFS’ FIRST CAUSE OF ACTION FAILS TO STATE A CLAIM FOR ELDER ABUSE .................................................................................................................... 5 Plaintiffs Fail to Plead Facts Sufficient Amounting to Egregious Abuse or Neglect ...................................................................................................................... 6 Plaintiffs Fail to Plead Facts Sufficient to Show Recklessness, Oppression, Fraud, or Malice ........................................................................................................ 7 A Claim for Elder Abuse Must State Facts that Show Involvement by an Officer, Director, or Managing Agent of a Corporate Defendant ............................. 9

PLAINTIFFS’ THIRD CAUSE OF ACTION FAILS TO STATE A CLAIM FOR WILLFUL MISCONDUCT AND IS DUPLICATIVE. ....................................................... 9 Plaintiffs Fail to State a Cause of Action for Willful Misconduct ............................ 9 Plaintiffs’ Willful Misconduct Cause of Action is Duplicative .............................. 10

PLAINTIFFS HAVE FAILED TO ALLEGE FACTS SUFFICIENT TO STATE A CAUSE OF ACTION FOR WRONGFUL DEATH BY DEFENDANTS........................ 11 A. Defendants Did Not Cause Decedent’s Death ....................................................... 11

PLAINTIFFS’ FIFTH CAUSE OF ACTION FOR VIOLATION OF PATIENTS ' RIGHTS PURSUANT TO SECTION 1430(b) OF THE HEALTH AND SAFETY CODE FAILS TO STATE A CAUSE OF ACTION.......................................................... 12

CONCLUSION.............................................................................................................................. 13

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1 TABLE OF AUTHORITIES 2 3 4 CASES 5 6 Barrett v. Sup. Ct. (1990) 222 Cal.App.3d 1176............................................................................. 11 7 Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1504 ...................................................................... 11 8 Calvillo-Silva v. Home Grocer, 968 P.2d 65, 76 (Cal. 1999) ........................................................ 10 9 Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-07.............. 6, 8 10 Colich & Sons v. Pacific Bell, 244 Cal.Rptr. 714, 723 (Ct. App. 1988)......................................... 10 11 Covenant Care, Inc. v. Sup. Ct. (2004) 32 Cal.4th 771..................................................................... 6 12 Delaney v. Baker, 971 P.2d 986, 991 (Cal. 1999).......................................................................... 5-9 13 Flowers v. Torrance Memorial Hosp. Med. Center, (1994) 8 Cal. 4th. 992, 1001 ......................... 10 14 Gruenberg v. Aetna Ins. Co., 510 P.2d 1032, 1036 (Cal. 1973) ................................................ 4, 10 15 Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402......................................... 11 16 Morgenroth v. Pacific Medical Center, Inc. (1976) 54 Cal.App.3d 521, 533................................. 11 17 Nazar v. Rodeffer, 229 Cal.Rptr. 209, 212 (Ct. App. 1996) ............................................................ 9 18 Rodriguez v. Campbell Indus., 151 Cal.Rptr. 90, 94 (Ct. App. 1978)............................................ 10 19 Schmidt v. Found. Health, 42 Cal.Rptr.2d 172, 175 (Ct. App. 1995)............................................... 4 20 STATUTES 21 Cal. Civ. Code. § 3294(b) ......................................................................................................... 5, 6, 9 22 Cal. Code Civ. Proc. § 377.60......................................................................................................... 11 23 Cal. Code Civ. Proc. § 430.10(e), (f) ................................................................................................ 4 24 Cal. Code Civ. Proc. § 430.50(a) ...................................................................................................... 4 25 Cal. Health & Saf. Code § 1419...................................................................................................... 12 26 Cal. Health & Saf. Code § 1420...................................................................................................... 12 27 28 ii
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STATUTES (Cont.)

3 Cal. Health & Saf. Code § 1424...................................................................................................... 13 4 Cal. Health & Saf. Code § 1430................................................................................................ 12, 13 5 Cal. Health & Saf. Code § 1430(b) ....................................................................................... 4, 12, 13 6 Cal. Welf. & Inst. Code § 15600, et seq............................................................................................ 5 7 Cal. Welf. & Inst. Code § 15610.57.................................................................................................. 6 8 Cal. Welf. & Inst. Code § 15610.57, subd. (a)(1). ............................................................................ 6 9 Cal. Welf. & Inst. Code § 15610.57, subd. (b)(2)&(3). .................................................................... 6 10 Cal. Welf. & Inst. Code § 15657....................................................................................................... 5 11 Cal. Welf. & Inst. Code § 15657(c) .......................................................................................... 5, 6, 9 12 Cal. Health & Saf. Code § 103550.................................................................................................. 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii
DEFENDANTS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINT

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JOSEPH Z. SAMO (SBN: 208836) LAW OFFICES OF JOSEPH SAMO 124 WEST MAIN STREET, SUITE 230 EL CAJON, CALIFORNIA 92020 TEL: [phone] FAX: [phone] Attorney for Defendant Matthew W. Rose

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ALEJANDRO RODRIGUEZ and EMMA RODRIGUEZ ) ) ) ) Plaintiffs, ) ) vs. ) ) MATTHEW W. ROSE, ROLAND E. ) BOWMAN, CARTER REESE & ) ASSOCIATES, form of entity unknown, and ) DOES 1 through 20 inclusive, ) ) Defendants. ) ) ) ) ) Case No.: GIC 863721 DEFENDANT MATTHEW W. ROSE’S DEMURRER TO PLAINTIFFS’ COMPLAINT Hearing Date: December 22, 2006 Time: 1:30 p.m. Department: 74 SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO, CENTRAL DIVISION
*Please note: Joseph Samo submitted the substance of this document to the California Superior Court. Out of courtesy, the names of some parties have been changed.

Before the Honorable LINDA B. QUINN, Judge

TO ALL PARTIES AND ATTORNEYS OF RECORD:
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______________________________________________________________________________________ DEFENDANT ROSE’S DEMURRER -1-

Defendant Matthew W. Rose (“Mr. Rose”) hereby files a Demurrer. Please take notice that a hearing will be held before the Honorable Linda B. Quinn in Department 74 of the above-mentioned Court. The Demurrer is based on the following Memorandum of Points and Authorities and any other legal arguments provided in open court.

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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Plaintiffs Alejandro Rodriguez and Emma Rodriguez (“Plaintiffs”) allege in their Complaint that in 1986 Defendant Mr. Rose sold a house to Gerardo Rodriguez, Jr. and Gloria Rodriguez (“Rodriguez Family”) without disclosing whether the fence was built on the proper property boundaries. Plaintiffs then purchased the property in 1993 from the Rodriquez Family. Plaintiffs now file an action against Mr. Rose for failing to disclose the fence was not built on the proper boundaries. Plaintiffs’ compliant fails to state facts sufficient to constitute a cause of action against Mr. Rose because (1) the Plaintiffs were not legal purchasers of the property in 1986 and (2) the Plaintiffs’ action against Mr. Rose violates the Statute of Limitations.

LEGAL STANDARD FOR FILING A DEMURRER California Code of Civil Procedure section 431.10(e) permits a defendant to object by demurrer to a pleading on the ground that the “pleading does not state facts sufficient to constitute a cause of action. For purposes of testing the sufficiency of the causes of action within a compliant, the demurrer admits the truth of all material facts, but not legal conclusions. Serrano v. Priest, 5 Cal. 3d 584, 591 (1971). This purpose of this Demurrer is to show the Court that even if the facts of the Complaint are true, Plaintiffs would nonetheless have no valid legal case against Defendant Mr. Rose.

SUMMARY OF FACTS, AS ALLEGED IN THE COMPLAINT Defendant Mr. Rose sold a house on 7136 Lisbon Street, San Diego, CA (“House” or “Subject Property”) to Rodriguez Family in October 1986. The Rodriguez Family purchased the property but intended to convey ownership to Plaintiffs. According to the Complaint, “…Rose (was) aware that Plaintiffs could not obtain the necessary credit for the purchase of subject property…. (thus) for the benefit of Plaintiff(s), (the Rodriguez
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Family) agreed that they would obtain the necessary loans for the purchase of subject property. It was agreed that although the Rodriguez’s obtained the credit, Plaintiffs would pay the monthly mortgage payments, property taxes, and all other costs with regard to purchase and ownership of subject property…” [Page 3, lines 5-11]. In August 1993, the Rodriguez Family sold the House to Plaintiffs. In December 2005, the Plaintiffs got in a dispute with a neighbor regarding the proper placement of the fence that was erected sometime prior to the 1986 sale of the House. Mr. Rose did not disclose whether the fence was built on the neighbor’s property.

LEGAL ANALYSIS A. Pursuant to the Statute of Frauds, Mr. Rose did not have a contractual relationship with Plaintiffs California law states parties cannot obtain an ownership interest in real property without a written contract. California Code of Civil Procedure section 1624 (Statute of Frauds) states in pertinent part: (a) The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged…: (3) … for the sale of real property, or of an interest therein…. Turning to Plaintiff’s allegations, Mr. Rose sold the property to the Rodriguez Family in 1986. Plaintiffs allege, however, in the Complaint that “Plaintiffs would be in fact the ‘true’ owner of subject property” (emphasis in the Complaint, page 3, line 14). In August 1993, Plaintiffs indeed purchased the property, in writing, from the Rodriguez family. Plaintiffs do their best to circumvent the Statute of Frauds by alleging an unwritten agreement existed between the parties as to the intent of what the plaintiffs call the “true” owner. In 1986, Mr. Rose sold the property to the Rodriguez Family, not the Plaintiffs (who coincidently have the same last name, but not to be confused with the party that entered into the written agreement). Thus, the Rodriguez Family bought the House in
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1986 and the Plaintiffs did not have an ownership interest until the 1993 written agreement with the Rodriguez family. Since Mr. Rose did not have a legal relationship with the Plaintiffs in the 1986 sale of the House, his alleged failure to disclose the proper property line of the fence’s location does not equate to a proper cause of action for the Plaintiffs. B. The Two-Year Statute of Limitations bars Plaintiffs’ request for relief for a failure to disclose during a 1986 sale of property California Code of Civil Procedure section 339(1) allows a party two years to file an action relating to the “guaranty of title of real property.” The statute of limitations

begins to run when plaintiffs know or should know about the facts relating to the cause of action. In Shamsian v. Atlantic Richfield Co., 107 Cal. App. 4th 967, the court ruled the statute of limitations begins once the plaintiff is in possession of knowledge that gives right to a legal cause of action. Id. at 980. In a dispute relating to property nuisance, the court ruled a “plaintiff is charged with ‘presumptive knowledge so as to commence the running of the statute once he or she has ‘notice or information of circumstances to put a reason person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation…’. (emphasis by the court) Id.. The law gives potential plaintiffs an extension of the statute of limitations if the facts are not known, but the law does not give an extension to plaintiffs who have the facts in their possession but not aware of their legal rights. Plaintiffs may argue the two-year statute of limitations does not begin to run until December 2005, which is when their neighbor informed them the fence was on her property. However, Plaintiffs started living in the House in 1986, and legally purchased the House in 1993. When the Plaintiffs purchased the House in 1993, they were afforded the opportunity to inspect the House and were given documents relating to the legal description of the Subject Property. Giving the Plaintiffs the benefit of the doubt, they may have had no reason to know the fence was not built on the correct property while they were not the legal owners of the property during the period of 1986 - 1993. But in
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1993, they had all the facts in front of them when they purchased the home; they knew where the fence was built and they had the legal description of the land. Plaintiffs cannot argue that the statute of limitations should begin when the neighbor informed them of the legal significance of the property dispute. California law is clear, as evidenced in the court’s ruling in Shamsian v. Atlantic Richfield Co., that the statute begins once a party knows the facts that lead to a legal cause of action. The Plaintiffs’ ignorance of the legal significance of the legal descriptions of the Subject Property and the location of the fence does not toll the statute of limitations. If Plaintiffs’ theory were correct, they could have filed a lawsuit indefinitely into the future depending on the happenstance of when a neighbor would have alerted them about the legal significance of the placement of the fence facts and legal descriptions of the property – all of which was available to Plaintiffs by 1993. California’s two-year statute of limitations does not want claims to be stale indefinitely when parties are aware of the facts; thus, this case should be dismissed as it pertains to Defendant Mr. Rose.

CONCLUSION Based on the above argument, Mr. Rose should be dismissed from this action.

Dated:

LAW OFFICES OF JOSEPH Z. SAMO By: Joseph Z. Samo

______________________________________________________________________________________ DEFENDANT ROSE’S DEMURRER -5-

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LAW OFFICES OF RICHARD D. FARKAS RICHARD D. FARKAS, ESQ. (State Bar No. 89157) 15300 Ventura Boulevard Suite 504 Sherman Oaks, California 91403 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs ALAN HOLLANDER and CARDIO-HEALTH CONCEPTS, LLC

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES (WEST DISTRICT)

ALAN HOLLANDER, an individual, CARDIO-HEALTH CONCEPTS, LLC, a California Limited Liability Company,

) ) ) ) ) Plaintiffs, ) ) vs. ) ) ) PREVENTION CONCEPTS, INC., a ) California Corporation; JACQUES D. ) BARTH, an individual; MAUD M. ZONJEE, ) an individual; and DOES 1 through 100, ) inclusive, ) ) ) Defendants. ) ) ) )

Case No. SC 091469 OPPOSITION OF PLAINTIFFS ALAN HOLLANDER AND CARDIO-HEALTH CONCEPTS, LLC TO DEMURRER AND MOTION TO STRIKE OF DEFENDANTS TO FIRST AMENDED COMPLAINT DATE: August 8, 2007 (noticed for 8/23/07) TIME: 8:30 a.m. DEPARTMENT: N Hon. Judge James A. Bascue Trial Date: January 22, 2007

Plaintiffs ALAN HOLLANDER and CARDIO-HEALTH CONCEPTS, LLC oppose the Demurrer and Motion to Strike of Defendants PREVENTION CONCEPTS, INC., a California Corporation; JACQUES D. BARTH, an individual; and MAUD M. ZONJEE, an individual; as

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Richard Farkas
15300 Ventura Blvd. #504 Sherman Oaks, CA 91403 Phone [phone] Fax [phone]

follows:
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1 OPPOSITION OF PLAINTIFFS TO DEMURRER AND MOTION TO STRIKE FIRST AMENDED COMPLAINT

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1 2 3 4 demurring Defendants have attempted to plead and prove their case. In so doing, they do not 5 6 7 8 9 10 11 12 for Breach of Contract, Anticipatory Breach of Contract, Breach of the Covenant of Good Faith and 13 14 15 16 17 18 19 20 was sustained have been deleted from the First Amended Complaint. All demurrable aspects of the 21 22 23 24 25 26 27 28
Richard Farkas
15300 Ventura Blvd. #504 Sherman Oaks, CA 91403 Phone [phone] Fax [phone]

I. INTRODUCTION. Rather than properly address the sufficiency of the Plaintiffs’ first amended complaint,

dispute the plaintiffs’ factual contentions, but rather attempt to argue that some of the causes of action are defective as uncertain and ambiguous, and on the completely erroneous basis that “there is another action pending between the same parties on the same cause of action.” Defendants’ arguments are completely without merit, factually and legally. II. FACTUAL BACKGROUND OF PLAINTIFFS’ CLAIMS. The original complaint in this case was filed on October 19, 2006. It alleged causes of action

Fair Dealing, Violation of Section 17200 of the California Business and Professions Code, Fraud, Conversion, Declaration of Constructive Trust, Negligent Misrepresentation, Conspiracy, an Accounting, Preliminary Injunction, Preliminary and Permanent Restraining Orders, and Declaratory Relief. Defendants have demurred to each of the causes of action. A demurrer to the original complaint was sustained on the basis that it omitted the holder of the subject promissory notes, CARDIO-HEALTH CONCEPTS, LLC, as a plaintiff. Other causes of action to which the demurrer

original complaint have been cured by the First Amended Complaint, and the demurrer to the First Amended Complaint is without merit. Factual Allegations.1 Plaintiff, ALAN HOLLANDER, (hereafter occasionally referred to as “HOLLANDER” or “Plaintiff”) is an individual, residing in the County of Los

1 Plaintiff acknowledges that the demurrer and its opposition must address the sufficiency of the complaint. This section is intended solely to give the Court some background of the dispute between Plaintiff and Defendants, to make the
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Angeles, State of California. HOLLANDER is the founder and sole member of Plaintiff CARDIOHEALTH CONCEPTS, LLC. Defendant PREVENTION CONCEPTS, INC. (hereafter occasionally referred to as “PREVENTION CONCEPTS”) is a California Corporation, doing business in the County of Los Angeles, State of California. Defendant JACQUES D. BARTH (“BARTH”) is an

5 6 7 8 9 10 11 12 PREVENTION CONCEPTS, INC. in California, as a corporation seeking to develop and 13 14 15 16 17 18 19 20 percentage ownership in the proceeds from the commercial exploitation of the technology of 21 22 23 24 25 26 27 28
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individual, residing in the County of Los Angeles, State of California. BARTH, along with his wife, Defendant MAUD M. ZONJEE, were the founders of PREVENTION CONCEPTS, INC. [Complaint ¶s 1-3 First Amended Complaint ¶s 4-8.] Plaintiff’s initial role with respect to the defendants was generally described in paragraph 11 through 13 of the complaint: “[I]n or about February, 1997, Defendants BARTH and ZONJEE incorporated

commercially exploit ultrasound technology to assess cardiovascular risk. As detailed herein, Defendants BARTH, ZONJEE, and PREVENTION CONCEPTS secured the services of Plaintiff HOLLANDER to assist Defendants in their efforts to expand and finance their business efforts. As a part of the business transactions with the Defendants, Plaintiff HOLLANDER was to receive, among other things, a monthly salary, a designated percentage interest in PREVENTION CONCEPTS CORP., a percentage of the funds he was responsible for raising from third party investors, a

PREVENTION CONCEPTS, and several other benefits and components of compensation.” [Complaint ¶s 11-13.] Introductory paragraph 14 further explains the basis of the Plaintiff’s complaint: “As detailed herein, the Defendants, and each of them, have sought to terminate Plaintiff HOLLANDER

otherwise sparse demurrer more understandable. Plaintiff is not relying upon the facts in this introduction to support his opposition to the demurrer to the complaint.

Richard Farkas
15300 Ventura Blvd. #504 Sherman Oaks, CA 91403 Phone [phone] Fax [phone]

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from all aspects of their business activities, and have wrongfully and unlawfully withheld compensation from Plaintiff, have failed and refused to pay Plaintiff sums to which he is entitled, and have wrongfully failed and refused to repay Plaintiff for money he advanced to the Defendants as loans induced by the false representations of the Defendants. As such, Defendants have breached

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Plaintiff need only allege facts “in ordinary and concise language”. California Code of Civil 24 25 26 27 28
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their contractual obligations to Plaintiff, are anticipated to breach other agreements, and have committed a variety of tortuous acts, entitling Plaintiff to the relief sought herein.” [Complaint ¶14.] A very detailed explanation of the dealings between Plaintiffs and Defendants is now found in paragraphs 15 through 32 of the First Amended Complaint, which describe the various agreements between the parties, the unpaid promissory notes, and the breaches of the defendants.

ARGUMENT III. APPLICABLE STANDARDS.
A. The Standard for Ruling on a Demurrer is Liberal Construction. Code of Civil Procedure, Section 452 sets forth the legal standard for ruling on a demurrer— liberal construction with a view to substantial justice between the parties. (See Stevens v. Sup. Ct. (API Auto Ins. Services) (1999) 75 Cal.App.4th 594, 601.) As stated in Gressley v. Williams (1961) 193 Cal.App.2d 636, 639, “The court must, in every stage of an action, disregard any defect in the pleadings which does not affect the substantial rights of the parties. . . . All that is necessary as against a general demurrer is to plead facts entitling the plaintiff to some relief.” B. Defendants Bear A Heavy Burden On A General Demurrer. In California, the Court is required to accept the allegations of a Complaint as true when ruling on a demurrer. Witkin, Summary of California Procedure (2d Ed.) Pleading, §800, p. 2413.

Procedure §425.10. A complaint states facts sufficient to constitute a cause of action if it appears the plaintiff is entitled to any relief. [Addiego v. Hill, 238 Cal.App.2d 842 (1965).] It has also been held that, in the context of a demurrer, complaints must be liberally construed. [Buss v. J.O. Martin

Richard Farkas
15300 Ventura Blvd. #504 Sherman Oaks, CA 91403 Phone [phone] Fax [phone]

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Co., 241 Cal.App.2d 123, 133-34, (1st Dist. 1966)]. It has been held that “a Plaintiff need not plead facts with specificity where the facts are within the knowledge and control of the defendant and are unknown to Plaintiff.” [Credit Managers Association of Southern California v. Superior Court, 51 Cal.App.3d 352, 361 (1975) citations omitted.]

5 6 7 8 9 10 11 12 irrelevant to ruling upon the demurrer. [Stevens v. Superior Court, 180 Cal. App. 3d 605, 609-10 13 14 15 16 17 18 19 20 standards. 21 22 23 24 25 26 27 28
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A demurrer can be used only to challenge defects that appear on the face of a complaint. For the purpose of testing the sufficiency of the pleading on demurrer, the court must accept as true all material facts properly pleaded. [Blatty v. New York Times Co., 42 Cal. 3d 1033, 1040 (1986) (citation omitted); Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 17 Cal. 4th 553, 558 (1998).] All facts are to be construed in the light least favorable to defendant. [Perdue v. Crocker Natl. Bank, 38 Cal. 3d 913, 922 (1985).] Whether the plaintiff will be able to prove the pleaded facts is

(1986).] It is error to sustain a demurrer if it appears that the plaintiff is entitled to any relief under the circumstances pleaded. [Dubins v. Regents of Univ. Of Cal., 25 Cal. App. 4th 77, 82 (1994); Jack Heskett Lincoln-Mercury, Inc. v. Metcalf, 158 Cal. App. 3d 38, 41 (1984).] If there is a reasonable possibility that a pleading defect can be cured, leave to amend must be granted. [Platt v. Coldwell Banker Residential Real Estate Servs., 217 Cal. App. 3d 1439, 1444 (1990); Blank v. Kirwan, 39 Cal. 3d 311, 318 (1985).] Defendant’s demurrer cannot be granted under these

IV. PLAINTIFFS HAVE ALLEGED ALL OF THE ELEMENTS OF BREACHES OF CONTRACTS, INCLUDING THEIR OWN PERFORMANCE. Defendants’ original “boilerplate” demur stated that the causes of action for breach of contract, anticipatory breach of contract and breach of the covenant of good faith and fair dealing fail to state whether the alleged contract is written oral [sic], or implied by conduct.” [Demurrer, page 2, lines 16-18.] Defendants claimed that “No copy of a written contract between the plaintiff Alan 5 OPPOSITION OF PLAINTIFFS TO DEMURRER AND MOTION TO STRIKE FIRST AMENDED COMPLAINT

Richard Farkas
15300 Ventura Blvd. #504 Sherman Oaks, CA 91403 Phone [phone] Fax [phone]

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Hollander and any of the defendants is attached to the complaint….” [Demurrer, page 2, lines 1820.] This was despite the opening sentence of the demurrer, which states “Attached as exhibits A and B to the complaint of plaintiff Alan Hollander filed on October 19, 2006, are two promissory notes.” [Demurrer, page 1, lines 19-20.] In any event, this has been addressed in the First Amended

5 6 7 8 9 10 11 12 defendants’ breaches. Paragraph 30 of the original complaint (paragraph 35 of the First Amended 13 14 15 16 17 18 19 20 and practices." 21 22 23 24 25 26 27 28
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Complaint, which attaches and incorporates the subject promissory notes, and the demurrer to the First Amended Complaint no longer addresses this cause of action. The contracts between Plaintiff and the Defendants are clear and adequately alleged, throughout introductory paragraphs 15 through 27, as well as in paragraphs 29 through 35. In addition to attaching and incorporating two written promissory notes (it is of no consequence that the designated payee is Plaintiff’s company), the plaintiff details the additional agreements and

Complaint), for example, alleges that “Defendants breached their contracts with Plaintiff HOLLANDER by, among other things: i. ii. iii. iv. Refusing to give Plaintiff the opportunity to succeed at his agreed efforts; Failing to treat Plaintiff in accordance with Defendants’ stated policies; Terminating Plaintiff in breach of the promises made to him; Terminating Plaintiff without following the benefits of Defendants’ policies

In addition, former paragraph 31 (now paragraph 36 of the First Amended Complaint) alleges: Mr. HOLLANDER has not been fully compensated by the company for his agreed efforts; The company has failed and refused to repay Plaintiff for money he advanced on behalf of the Defendants and for the benefit of the Defendants; 6 OPPOSITION OF PLAINTIFFS TO DEMURRER AND MOTION TO STRIKE FIRST AMENDED COMPLAINT

Richard Farkas
15300 Ventura Blvd. #504 Sherman Oaks, CA 91403 Phone [phone] Fax [phone]

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Mr. HOLLANDER has not been fully compensated for his efforts and monetary advances on behalf of the Defendants; Mr. HOLLANDER has been denied his percentage interest in the Company; Mr. HOLLANDER has not been repaid for the loans he made to the Company, which

5 6 7 8 9 10 11 12 FRAUD 13 14 15 16 17 18 19 20 Joanaco Projects v. Nixon & Tierney Constr. Co., 248 Cal.App.2d 821, 831 (1967) (emphasis in 21 22 23 24 25 26 27 28
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loans were made solely because of the false representations of the Defendants that Plaintiff would be joining the Company as an officer and director, and that he would continue to be involved in bringing in the funds to capitalize the business . Defendants no longer demurrer to these contractually-based causes of action, but seek to eliminate other causes of action already accepted by this Court. V. THIS COURT ALREADY HELD THAT PLAINTIFF HAS ALLEGED THE BASIS FOR AND NEGLIGENT MISREPRESENTATION WITH THE REQUISITE

PARTICULARITY. Actual fraud occurs when a party to the contract intends to deceive another party to the contract or to induce another party to enter into the contract on the basis of a promise made without any intention of performing it or any other deceitful act. Benson v. Hamilton, 126 Cal.App. 331, 334 (1932). “A promise to do something necessarily implies the intention to perform, and where such an intention is absent, there is an implied misrepresentation of fact, which is actionable fraud.”

original). Accordingly, a defendant’s promise that it is capable of performing its obligations, or one which induces a plaintiff to contract with a defendant, is a “duty that gives rise to tort liability completely independent of the contract.” [Erlich v. Menezes, 21 Cal.4th 543, 552 (1999)

(acknowledging the blurred distinctions between tort and contract claims).] In any event, much of what Defendants point to as lacking particularity is the question of Defendants’ intent, information exclusively within their control which subsequently lessens the 7 OPPOSITION OF PLAINTIFFS TO DEMURRER AND MOTION TO STRIKE FIRST AMENDED COMPLAINT

Richard Farkas
15300 Ventura Blvd. #504 Sherman Oaks, CA 91403 Phone [phone] Fax [phone]

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particularity pleading requirement for fraud. [Committee on Children’s Television, Inc. v. General Foods Corps., 35 Cal.3d 197, 217 (1983).] Contrary to the defendants’ claim that Plaintiffs failed to plead fraud with particularity, Plaintiffs’ Complaint alleges, among other things, that “Plaintiff HOLLANDER was solicited by the

5 6 7 8 9 10 11 12 and trust in Defendants, Plaintiff agreed to seek to secure funding for the Defendants, to arrange for 13 14 15 16 17 18 19 20 CONCEPTS, and benefited from the misrepresentations and omissions set forth herein. 21 22 23 24 25 26 27 28
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Defendants, through written communications and telephonic and face-to-face meetings with Defendants to continue his efforts, to act in the best interests of the Company, to arrange for loans of money to the Defendants (including the loans repayable to Plaintiff CARDIO-HEALTH, evidenced by Exhibits A and B), and otherwise act as alleged herein. In reliance on the above representations, Plaintiff HOLLANDER agreed to assist the Defendants with their efforts to expand and obtain outside financing for PREVENTION CONCEPTS. In furtherance of Plaintiff HOLLANDER’s faith

loans of money to PREVENTION CONCEPTS to benefit the individual Defendants, and to take an active role in the activities of PREVENTION CONCEPTS and to otherwise act in the best interests in the Defendants.” [Complaint ¶s 46-48; First Amended Complaint ¶s 50-52.] It continues: “At the time of the misrepresentations and omissions referenced herein, Defendants were aware that such misrepresentations and omissions were taking place, and allowed them to take place because they were co-founders, directors, and officers of PREVENTION

[Complaint ¶ 49; First Amended Complaint ¶ 53.] After detailing the wrongful activities of the defendants, and each of them, the complaint alleges that “Defendants’ conduct evidenced a conscious disregard of the Plaintiff’s rights, and exhibited a particularly malicious intent in light of the Defendants’ knowledge of Plaintiff’s financial status, activities, and efforts.” [Complaint ¶ 51; First Amended Complaint ¶ 55.] The fraud cause of action, in light of the totality of the

allegations, is also sufficiently pleaded. 8 OPPOSITION OF PLAINTIFFS TO DEMURRER AND MOTION TO STRIKE FIRST AMENDED COMPLAINT

Richard Farkas
15300 Ventura Blvd. #504 Sherman Oaks, CA 91403 Phone [phone] Fax [phone]

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VI. PLAINTIFF HAS ADEQUATELY ALLEGED A CONSPIRACY BASED ON AN INDEPENDENT CIVIL WRONG. CONVERSION, ACCOUNTING AND

DECLARATORY RELIEF ARE ALSO WELL PLED, AND INJUNCTIVE RELIEF IS APPROPRIATE.

5 6 7 8 9 10 11 12 responsible as a joint tortfeasor for all damages ensuing from the wrong, irrespective of whether or 13 14 15 16 17 18 19 20 and specific “independent civil wrongs” set forth in those paragraphs, the Plaintiffs further alleged, 21 22 23 24 25 26 27 28
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Defendants previously challenged the Plaintiffs’ cause of action for conspiracy, on the sole basis that “this complaint fails to adequately plead any cause of action that could would [sic] constitute a wrongful act.” [Demurrer, page 8, lines 8, 9.] “The elements of an action for civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of the common design. . . . In such an action the major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act

not he was a direct actor and regardless of the degree of his activity.”‘ [Doctors’ Co. v. Superior Court (1989) 49 Cal.3d 44, citing Mox Incorporated v. Woods (1927) 202 Cal. 675, 677-678 (262 P. 302); accord Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784 (157 Cal.Rptr. 392, 598 P.2d 45).] The ninth cause of action (conspiracy) is specifically “Against All Defendants,” and incorporates paragraphs 1 through 67, inclusive. [Complaint ¶ 68.] In addition to the numerous

in paragraph 69, that the defendants “falsely and fraudulently represented to Plaintiff, among other things, that if Plaintiff became affiliated with them and contributed his time, expertise, experience, efforts and resources, then Plaintiff would be fully compensated in accordance with the agreements set forth herein.” The complaint further alleges that “the Defendants, and each of them, willingly and willfully conspired and agreed among themselves to perform the wrongful acts and schemes set forth in this Complaint. Said conspiracy included, but is not limited to, the methods employed by 9 OPPOSITION OF PLAINTIFFS TO DEMURRER AND MOTION TO STRIKE FIRST AMENDED COMPLAINT

Richard Farkas
15300 Ventura Blvd. #504 Sherman Oaks, CA 91403 Phone [phone] Fax [phone]

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the Defendants, and each of them, to misappropriate the Plaintiff’s money, efforts, and experience, and to conceal their wrongful actions.” [Complaint ¶ 72.] The demurrer to the First Amended Complaint no longer addresses this cause of action. Defendants now conclude, despite the allegations of the complaint, that Plaintiff fails to

5 6 7 8 9 10 11 12 Complaint ¶ 21.] An action for an accounting, which usually invokes the equity powers of the 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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state facts giving rise to a fiduciary relationship to support an accounting. Disregarding all of the other allwegations of the First Amended Complaint, Defendants wrongfully maintain only that “plaintiff [sic] is alleging the right to recover a sum of money as stated in a promissory note.” [Demurrer, page 5, lines 27-28.] Plaintiffs repeatedly alleges how HOLLANDER was assured that he would become an integral part of the company, as an officer and co-owner. [See, e.g. Complaint ¶ 17; First Amended

court, is a proceeding for the purpose of obtaining a judicial settlement of the accounts of the parties. [Verdier vs. Superior Court, 88 Cal.App. 2d 527, 199 P.2d 325, app. dsmd. 336 US 957, 93 L. Ed. 1110, 69 S.Ct. 893.] Accounting may also be an auxiliary remedy in actions other than those brought for an accounting as such. [Hillman vs. Stults, 263 Cal.App.2d 848, 70 Cal.Rptr 295.]2

Courts of law and equity are possessed of concurrent jurisdiction in matters of accounting, though an action for an accounting ordinarily invokes the equity power of the court. [Smith vs. Blodget, 187 C. 235, 201 P. 594; Kritzer vs. Lancaster, 96 Cal.App. 2d 1, 214 P.2d 407; Hillman vs. Stults, 263 Cal.App.2d 848, 70 Cal.Rptr 295.] Where, as here, the allegations of a complaint show that the plaintiff is entitled to some remedy from a court of general jurisdiction, and that it is necessary to have an accounting to determine his rights, the accounting may be had in that court, regardless of whether the facts would have given jurisdiction to a court of equity. [Coward vs. Clanton, 122 C. 451, 55 P. 147; Arbuckle vs. Reid (Clifford F.), Inc. 118 Cal.App;. 272, 4 P.2nd 978; Remme vs. Herzog, 222 Cal.App. 2d 863, 35 Cal. Rptr. 586.] Moreover, a court may also assume jurisdiction and order an accounting where other grounds for invoking equity are present, such as fraud, as is alleged by Plaintiff in this action. [Smith vs. Blodget, 187 Cal. 235, 201 P. 584; Holmes vs. Hatch, 11 Cal.2d 376, 80 P.2d 70.] In an action where either party alleges facts showing an accounting to be necessary, an accounting may be had. [Jones vs. Gardner, 57 C. 641.] Moreover, the pleader in an action for an accounting is not required specifically to state facts that a peculiarly within the knowledge of his opponent. [Brea vs. McGlashan, 3 Cal.App.2d 454, 39 P.2d 877; Hillman vs. Stults, 263 Cal.App.2d 848, 70 Cal.Rptr. 295.]

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Richard Farkas
15300 Ventura Blvd. #504 Sherman Oaks, CA 91403 Phone [phone] Fax [phone]

10 OPPOSITION OF PLAINTIFFS TO DEMURRER AND MOTION TO STRIKE FIRST AMENDED COMPLAINT

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The declaratory relief cause of action properly alleges that “an actual controversy has arisen and now exists between the Plaintiff and the Defendants concerning their respective rights in and concerning the structure of PREVENTION CONCEPTS which is the subject of this lawsuit, as well elements of compensation and Plaintiff’s entitlement of immediate repayment of loans

5 6 7 8 9 10 11 12 can be obtained. [Tolle v Struve (1932) 124 Cal App 263, 12 P2d 61 (discussing history and 13 14 15 16 17 18 19 20 declaratory relief is therefore not a special proceeding and is generally treated like other civil 21 22 23 24 25 26 27 28
Richard Farkas
15300 Ventura Blvd. #504 Sherman Oaks, CA 91403 Phone [phone] Fax [phone]

induced by the false representations of the Defendants, and each of them.” [Complaint ¶ 85.] The purpose of declaratory relief is to determine and declare rights before the rights have been invaded. [Babb v Superior Court of Sonoma County (1971) 3 Cal 3d 841, 92 Cal Rptr 179, 479 P2d 379; Witkin, 5 Cal. Proc. 3d, Pleading, §800] The declaratory relief action allows a party to shape his or her conduct so as to avoid a violation of either his or her own or another party’s rights, and saves the party from having to risk such a violation before an adjudication of differences

purpose of declaratory relief); see Witkin, 5 Cal. Proc. 3d, Pleading, §800] The statute specifically authorizes a party to obtain a declaration before there has been a breach of the obligation with respect to which the declaration is sought. [CCP §1060] . Actions for declaratory relief are included in the statutory definition of civil actions. [CCP §§22, 30; see Maguire v Hibernia Sav. & Loan Soc. (1944) 23 Cal 2d 719, 146 P2d 673, 151 ALR 1062 (discussing procedural nature of civil action and citing CCP §§22, 30)] An action for

actions. [See Witkin, 5 Cal. Proc. 3d, Pleading, §800]3

Declaratory relief is a cumulative remedy, which should not be construed as restricting any remedy provided by law for the benefit of any party to an action seeking declaratory judgment. Moreover, a declaratory judgment does not preclude any party from obtaining additional relief based on the same facts. [CCP §1062] Thus, the court may not dismiss a correctly pleaded action for declaratory relief merely because the plaintiff filed or could have filed an action for another type of relief. [Olson v Cory (1983) 35 Cal 3d 390, 197 Cal Rptr 843, 673 P2d 720 (complaints for declaratory and coercive relief may be made in the same action); Californians for Native Salmon etc. Assn. v Department of Forestry (1990, 1st Dist) 221 Cal App 3d 1419, 271 Cal Rptr 270, review den (Cal) 1990 Cal LEXIS 4380 (that plaintiff could have filed another form of action did not permit trial court to dismiss properly pleaded declaratory relief complaint)]
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In this case, Plaintiffs alleges that “A judicial determination is necessary and appropriate at this time under the circumstances in order that Plaintiff HOLLANDER and the Defendants may establish their rights and pursue their business interests. Because of the relative instability of the Defendants’ business, and the fact that Plaintiff may have no other adequate remedy at law, this

5 6 7 8 9 10 11 12 consideration owed to Plaintiff, as described in this Complaint, including but not limited to an 13 14 15 16 17 18 19 20 tip in the balance of hardships in plaintiff’s favor (i.e., the risk or irreparable injury to plaintiff if 21 22 23 24 25 26 27 28
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relief is necessary and appropriate.” [Complaint ¶ 86; First Amended Complaint ¶ 87.] With respect to the conversion cause of action, Plaintiffs allege converted property over and above the admittedly-unpaid amounts evidenced by the Promissory notes: “The funds held by the Defendants on behalf of the Plaintiffs included those funds owed to Plaintiff CARDIO-HEALTH CONCEPTS, LLC as money loaned to the Company, as described herein in Exhibits A and B (specifically, the Notes in the principal amounts of $25,000.00 and $6,500.00), and other valuable

additional $7,500.00 provided by Plaintiffs to attorneys on behalf of the Defendants, and each of them.” [First Amended Complaint ¶ 57 (emphasis added).] In order to obtain a preliminary injunction or other form of injunctive relief, an applicant is required to show a significant threat of irreparable injury and that legal remedies are inadequate. The “traditional test” focuses on whether the plaintiff has demonstrated the following factors: 1) a fair chance of success on the merits; 2) significant threat of irreparable injury; 3) at least a minimal

the injunction is denied must exceed the foreseeable hardship to defendant if it is granted); and 4)

The court may combine declaratory relief with other remedies, such as injunctions or damages. [Hollenbeck Lodge (486) I.O.O.F. v Wilshire Boulevard Temple (1959, 2nd Dist) 175 Cal App 2d 469, 346 P2d 422 (injunctive and declaratory relief may be granted in the same action); Lortz v Connell (1969, 1st Dist) 273 Cal App 2d 286, 78 Cal Rptr 6 (court could have assessed damages in action for declaratory relief where right to damages had accrued).] “The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject.” (5 Witkin, op. cit. supra, § 811, p. 254, emphasis omitted.)

Richard Farkas
15300 Ventura Blvd. #504 Sherman Oaks, CA 91403 Phone [phone] Fax [phone]

12 OPPOSITION OF PLAINTIFFS TO DEMURRER AND MOTION TO STRIKE FIRST AMENDED COMPLAINT

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whether any public interest favors granting the injunction. See California Practice Guide, Civil Procedure Before Trial, Chapter 13, 13:43-13:44, p. 13-14; Atari Games Corp. v. Nintendo of America, Inc. 897 F.2d 1572, 1575 (Fed.Cir. 1990); American Motorcyclist Ass’n v. Watt 714 F.2d 962, 965 (9th Cir. 1983).

5 6 7 8 9 10 11 12 an adequate remedy at law.” The demurrer to this cause of action should also be denied. 13 14 15 16 17 18 19 20 the First Amended Complaint is based solely on the breaches of contract alleged. The First 21 22 23 24 25 26 27 28
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Paragraph 86 of the First Amended Complaint alleges that “Defendants have undertaken steps to disavow Plaintiff HOLLANDER’s role as an officer and director of PREVENTION CONCEPTS, and have failed to honor their agreements to have Plaintiff HOLLANDER act as an officer and director of PREVENTION CONCEPTS….” The following paragraph further provides that “Plaintiff HOLLANDER will suffer a great and irreparable injury, in that the Plaintiff HOLLANDER will be completely prevented from protecting his interests, leaving Plaintiff without

VII. THE MOTION TO STRIKE SHOULD BE DENIED. The sole basis of the Motion to Strike is to strike the portion of Plaintiffs’ Prayer for Relief for Attorneys’ fees because the attached promissory notes do not contain an attorneys’ fee provision. The Motion should be denied, so that this matter may proceed on the merits. First of all, the relief sought in a prayer for relief is not to be considered as an allegation of the complaint. Moreover, the Motion to Strike appears to be based on the mistaken assertion that

Amended Complaint also contains all of the elements necessary to support its causes of action for breaches of the covenant of good faith and fair dealing, conspiracy to defraud, fraud, and other intentional torts. The ultimate facts will be proven at trial, and it is then when it will be determined whether an award of attorneys’ fees is appropriate—not through a premature motion to strike. VIII. CONCLUSION.

Richard Farkas
15300 Ventura Blvd. #504 Sherman Oaks, CA 91403 Phone [phone] Fax [phone]

13 OPPOSITION OF PLAINTIFFS TO DEMURRER AND MOTION TO STRIKE FIRST AMENDED COMPLAINT

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The Plaintiffs have, with great specificity, alleged all of the necessary elements to set forth the causes of action contained in their first amended complaint. At this stage of pleading, the allegations must be taken as true, and the complaint is to be construed liberally. All of the facts are sufficient to state the associated causes of action, and the allegations of the Plaintiffs’ first

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complaint are ripe for adjudication at this time. For the reasons stated herein, plaintiffs respectfully request that the demurrer and motion to strike the First Amended Complaint be denied. DATED: August 1, 2007 LAW OFFICES OF RICHARD D. FARKAS

By ________________________________ RICHARD D. FARKAS Attorneys for Plaintiffs, ALAN HOLLANDER and CARDIO-HEALTH CONCEPTS, LLC

Richard Farkas
15300 Ventura Blvd. #504 Sherman Oaks, CA 91403 Phone [phone] Fax [phone]

14 OPPOSITION OF PLAINTIFFS TO DEMURRER AND MOTION TO STRIKE FIRST AMENDED COMPLAINT

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Alan Hollander vs. Prevention Concepts, Inc., Barth, Zonjee Los Angeles Superior Court of California Case No. SC 091469

PROOF OF SERVICE I am a resident of the State of California, I am over the age of 18 years, and I am not a party to this lawsuit. My business address is Law Offices of Richard D. Farkas, 15300 Ventura Boulevard, Suite 504, Sherman Oaks, California 91403. On the date listed below, I served the following document(s): PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER AND MOTION TO STRIKE FIRST AMENDED COMPLAINT.
_ by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5 p.m. Our facsimile machine reported the "send" as successful.

XX by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Los Angeles, California, addressed as set forth below. I am readily familiar with the firm 's practice of collecting and processing correspondence for mailing. According to that practice, items are deposited with the United States mail on that same day with postage thereon fully prepaid. I am aware that, on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing stated in the affidavit.

_ by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, deposited with Federal Express Corporation on the same date set out below in the ordinary course of business; that on the date set below, I caused to be served a true copy of the attached document(s).

_

by causing personal delivery of the document(s) listed above ________ at the address set forth below.

_

by personally delivering the document(s) listed above to the person at the address set forth below.

Christine S. Upton, Esq. Kehr, Schiff & Crane, LLP 12400 Wilshire Blvd. Suite 1300 Los Angeles, CA 90025 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Dated: ______________, 2007

____________________________________ KERRI CONAWAY

Richard Farkas
15300 Ventura Blvd. #504 Sherman Oaks, CA 91403 Phone [phone] Fax [phone]

15 OPPOSITION OF PLAINTIFFS TO DEMURRER AND MOTION TO STRIKE FIRST AMENDED COMPLAINT

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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFFS’ COMPLAINT

[attorney info redacted] [attorney info redacted] [attorney info redacted] [attorney info redacted] Attorney for Plaintiffs

SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES
CENTRAL DISTRICT DISTRICT, STANLEY MOSK COURTHOUSE — UNLIMITED
[redacted], Plaintiffs vs. [redacted], and DOEs 1 to 10, inclusive, Defendants Case Number: Dept.: Judge: Trial Date: [redacted] [redacted] [redacted] [redacted]

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFFS’ COMPLAINT Hearing Date: _________ Hearing Time: _________

The Court should overrule the demurrer because: 1. Plaintiffs have filed a verified First Amended Complaint (“FAC”) changing “fiduciary relationship” to “confidential relationship,” which did exist between Plaintiffs and Defendants, and which does impose a fiduciary duty on the defendants, and the First Cause of Action in the FAC is both certain and

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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFFS’ COMPLAINT

adequately alleges facts sufficient to constitute a cause of action against the demurring defendants; and 2. Civil conspiracy is a recognized cause of action in California, and the Tenth Cause of Action (in both the original Complaint and in the FAC) is both certain and adequately alleges facts sufficient to constitute a cause of action against the demurring defendants. Dated: _________________

[redacted], Attorney for Plaintiffs

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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFFS’ COMPLAINT

Memorandum of Points and Authorities
Plaintiffs note that the Demurrer refers on page 2, line 3, to “the plaintiff’s First Amended Complaint” but Plaintiffs have only filed an original Complaint. Plaintiffs note that the Demurrer refers on page 5, line 14, and also on page 6, line 24, to the “Fourth Cause of Action” which is, as alleged in the Complaint, for “CANCELLATION OF VOID DEED OBTAINED BY FRAUD” (Complaint, page 8, line 12). However, the demurrer offers no argument remotely connected to such cause of action.

1. Defendants did owe Plaintiffs a fiduciary duty.
Plaintiffs have filed a First Amended Complaint (“FAC”) that changes “fiduciary relationship” in both ¶ 15 and ¶ 23 of the original Complaint to “confidential relationship” in the same paragraphs of the FAC. Either way, a fiduciary duty was owned and was breached.

The demurrer insists that more is required to establish a fiduciary duty than the repose of confidence and trust of one person in the another, and the other accepting such confidence and trust. Case law differs as to whether a “fiduciary relationship” and a “confidential relationship” are identical. Without question, however, both create a fiduciary duty. The following case holds they are identical: Suffice it to say that the evidence clearly establishes that decedent reposed trust and confidence in the integrity and fidelity of both appellants. These are the elements of a confidential or fiduciary relationship, which in law are synonymous... Rieger v. Rich (1958) 163 Cal.App.2d 651@664 [329 P.2d 770]. In contrast, the following case holds they differ, but that a “confidential relationship” still imposes a fiduciary duty: 3

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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFFS’ COMPLAINT

We review first the basic principles of fiduciary and confidential relations. The two terms are often said to be synonymous, but there are “significant differences.” Both relationships give rise to a fiduciary duty, that is, a duty “to act with the utmost good faith for the benefit of the other party.” ... “ ‘Technically, a fiduciary relationship is a recognized legal relationship such as guardian and ward, trustee and beneficiary, principal and agent, or attorney and client ··· whereas a “confidential relationship” may be founded on a moral, social, domestic, or merely personal relationship as well as on a legal relationship.’ ” ... A confidential relation may exist where there is no fiduciary relation. ... FN8 “Because confidential relations do not fall into well-defined categories of law and depend heavily on the circumstances, they are more difficult to identify than fiduciary relations.” ... The existence of a confidential relationship is a question of fact, and “ ‘the question is only whether the plaintiff actually reposed such trust and confidence in the other, and whether the other “accepted the relationship.” ’ ” ... A “relationship” must exist over a period of time. FN8. “The prerequisite of a confidential relationship is the reposing of trust and confidence by one person in another who is cognizant of this fact. The key factor in the existence of a fiduciary relationship lies in control by a person over the property of another. It is evident that while these two relationships may exist simultaneously, they do not necessarily do so.” ” Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141@1160 [23 Cal.Rptr.3d 335], citations omitted. Without question, both the original Complaint and the FAC allege all the elements of a “confidential relationship” among the parties, in which the defendants held a position of power and influence over the plaintiffs. The FAC pinpoints the relationship as

“confidential.” Hence the defendants owed a fiduciary duty to the plaintiffs, which the defendants breached.

2. Civil conspiracy is a recognized cause of action in California.
The FAC does not change the Tenth Cause of Action. The following argument applies to the demurrer and also to any contemplated demurrer as to the FAC. 4

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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFFS’ COMPLAINT

Tort law and criminal law treat conspiracy in a fundamentally different manner. To begin with, the object contemplated by a criminal conspiracy is a crime, and that of a civil conspiracy is a tort. In criminal law, the act of conspiring is a crime unto itself, regardless of whether the object of the conspiracy is actually effectuated. See Penal Code § 182, which includes no requirement of carrying out such object crime. In contrast, under tort law, conspiracy is only actionable when its object is effectuated—and damages the plaintiff. Absent commission of the underlying tort, civil conspiracy is not a cause of action. The demurrer quotes the California Supreme Court out of context in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503@510-511 [28 Cal.Rptr.2d 475] in an attempt to assert that civil conspiracy is, quite simply, never a cause of action. This is not so. Just beyond the passage quoted in the demurrer, the Supreme Court states: Standing alone, a conspiracy does no harm and engenders no tort liability. It must be activated by the commission of an actual tort. “‘A civil conspiracy, however atrocious, does not per se give rise to a cause of action unless a civil wrong has been committed resulting in damage.’ ... We have summarized the elements and significance of a civil conspiracy: “‘ 'The elements of an action for civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of the common design...’” Id. @511. Thus, the Supreme Court was pointing out that civil conspiracy cannot be a cause of action unless the underlying tort actually takes place and damages the plaintiff. It was not saying the cause of action never exists. Plaintiffs have pleaded the elements of civil conspiracy, and in fact, in preparing the Complaint, relied upon (without quoting) Applied Equipment Corp. v. Litton Saudi Arabia

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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFFS’ COMPLAINT

Ltd., supra, as their authority for its elements, which are two: (a) “the formation and operation of the conspiracy,” and (b) “damage resulting to plaintiff from an act or acts done in furtherance of the common design.” Complaint ¶ 66 alleges the first: that the defendants conspired to defraud the plaintiffs, and Complaint ¶ 66 alleges the second: that the defendants carried out the object of the conspiracy thereby damaging the plaintiffs.

Conclusion
For all the foregoing reasons, the Court should OVERRULE the Demurrer. Dated: _________________

[redacted], Attorney for Plaintiffs:

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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFFS’ COMPLAINT

PROOF OF SERVICE
I, the undersigned, declare: I am a citizen of the United States of America, am over the age of eighteen (18) years, and am not a party to the within action. My business address is [redacted]. On ___________, 2006, I caused to be served the following document(s): PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFFS’ COMPLAINT, on the parties involved addressed as follows: [redacted]

_XX_ BY MAIL: I placed each document in a sealed envelope, with postage fully prepaid, and caused it to be placed in the United States mail at Los Angeles, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on ___________, 2006, at ______________, California,

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