DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS - PDF document

DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 [attorney info redacted] [redacted] [redacted] [redacted] [redacted] [redacted] Tom Adams and Kenny Adams, and for self, st which I wrote 23 demurrers, which arestated below, with the judge’s rulings inserted in red. 19 demurrers were sustained(one of these was sustained with NO leave cause of action for BPC § 17200). Four demurrers were overruled, but two of thesewere as to causes of action against which other demurrers were sustained. Only twothat those two were the well pleaded and likely to survive our demurrers and motion to SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES CENTRAL DISTRICT JOHN SMITH, Plaintiff PQRS CORPORATION, a California TOM ADAMS, an individual; KENNY ADAMS, an individual; PAUL ROBERTS, an individual; and DOEs 1 to 20, inclusive, Defendants Case Number: [redacted] Assigned to:[redacted] DEFENDANTS PQRS CORPORATION,DEMURRER TO PLAINTIFF’S FIRST Filed concurrently with Request for JudicialNotice and Motion to Strike. Complaint filed: [redacted] Hearing Date: ________ Hearing Time: ________ Hearing Dept.:[redacted] DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 TO THE COURT, ALL INTERESTED PARTIES HEREIN, AND THEIR ATTORNEYSOF RECORD: PLEASE TAKE NOTICE THAT ________, or as soon thereafter as the matter can be heard, in Department [redacted of thewithin Demurrer of Defendants PQRSAdams (hereinafter “”), Kenny Adams (hereinafter “ROBERTS”) to the First Amended Complaint (hereinafter “Plaintiff John Smith. ROBERTS Hereinafter “ADAMS DEFENDANTS” refers collectively to Defendants TOM and Hereinafter “INDIVIDUAL DEFENDANTSTOM, KENNY and ROBERTS. Hereinafter “DEMURRING DEFENDANTSPQRS CORP, TOM, KENNY and ROBERTS. Hereinafter “ The Demurrer will be based on this Notice of Hearing, the accompanying Demurrerand Memorandum of Points and Authorities, the Request for Judicial Notice filed Dated: _________________ [redacted] By: [redacted], Attorneys for Defendants DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 The definitions set forth in the Notice of Hearing are incorporated herein to DEMURRING DEFENDANTS, for themselvesdemur the FAC on the following grounds: 1.The entire FAC, and all the causes of action therein, are uncertain, ambiguousand unintelligible because the distinction between partnership and corporation is blurred.Sustained with 30 days leave to amend. 2.The FAC fails to state facts sufficient to constitute a causePQRS CORP because none of the eleven causes of action is alleged against PQRS CORP.Sustained with 30 days leave to amend. 3.The First Cause of Action for ConversSustained with 30 days leave to 4.The First Cause of Action for Conversion is uncertain, ambiguous andunintelligible because it makes allegations that indicate diametrically inconsistent business 5.The Second Cause of Action for Fraud and Deceit (IntentionalMisrepresentation) fails to state facts sufficient to constitute a cause of action for fraud ordeceit or intentional misrallegation of damages is conclusory, is wdamages, and contradicts other allegaSustained with 30 6.The Second Cause of Action for Fraud and Deceit (IntentionalMisrepresentation) fails to state facts sufficient to constitute a cause of action for fraud ordeceit or intentional misrADAMS DEFENDANTS’S alleged intentional DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 misrepresentation and Plaintiff’s alleged damages makes no reasonable sense on its face.Sustained with 30 days leave to amend. 7.The Second Cause of Action for Fraud and Deceit (IntentionalMisrepresentation) fails to state facts sufficient to constitute a cause of action for fraud ordeceit or intentional misrPlaintiff’s reliance on the alleged misrepresentve been void for lack of consideration from Plaintiff. CCPSustained with 30 days leave to amend. 8.The Third Cause of Action for Fraud and Deceit (Fraudulent Concealment) isuncertain, ambiguous and unintelligible because FAC ¶ 46 is rambling andincomprehensible. CCP § 430.10(f). 9.The Third Cause of Action for Fraud and Deceit (Fraudulent Concealment)fails to state facts sufficient to constitute a concealment against the ADAMS DEFENDANTS because its allegation of damages isl allegations of damages, and contradictsSustained with 30 days leave to amend. 10.The Third Cause of Action for Fraud and Deceit (Fraudulent Concealment)concealment against the ADAMS DEFENDANTS becauSustained with 30 days leave to amend. 11.The Fourth Cause of Action for Breach DEFENDANTS because its allegation of damages is conclusory, is wholly unsupported byany factual allegations of damages, and contraSustained with 30 days leave to amend. 12.The Fourth Cause of Action for Breach DEFENDANTS because proximate cause is not alleged. CCP § 430.10(e). Sustained with 13.The Fifth Cause of Action for Breach of Contract fails to state facts sufficienth of contract against the ADAMS DEFENDANTS DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 because the “contract” alleged cannot exist as a matter of law. CCP § 430.10(e). with 30 days leave to amend. 14.The Fifth Cause of Action for Breach of Contract fails to state facts sufficienth of contract against the ADAMS DEFENDANTSbecause its allegation of damages is conclusory, is wholly unsupported by any factualallegations of damages, and contradicts otSustained with 30 days leave to amend. 15.The Sixth Cause of Action for Declaratory Relief (Dissolution anduncertain, ambiguous and unintelliSustained with 16.The Sixth Cause of Action for Declaratory Relief (Dissolution andto state facts sufficient to constitute a cause of action forADAMS 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 businessSustained with NO leave to amend. 18.The Eighth Cause of Action for Common Counts (Money Had and Received)a cause of action for common counts against theto allege any statement ofsum. CCP § 430.10(e). Sustained with 30 days leave to amend. 19.The Eighth Cause of Action for Common Counts (Money Had and Received)a cause of action for common counts against theallege nonpayment. CCP § 430.10(e).Sustained with 30 days leave to amend. 20.The Eighth Cause of Action for Common Counts (Money Had and Received)is uncertain, ambiguous and unintSustained with 30 days leave DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 21.The Ninth Cause of Action for Constructive Trust fails to state facts sufficientt the ADAMS DEFENDANTSbecause it fails to adequately allege that anything owned by plaintiff was wrongfullySustained with 30 days leave to amend. 22.The Tenth Cause of Action for Assault and Battery fails to state facts 23.The Eleventh Cause of Action for Intentional Infliction of Emotional Distressfails to state facts sufficient to constitute a cause of action for intentional infliction ofemotional distress against the INDIVIDUAL DEFENDANTS. CCP § 430.10(e). ANTS pray judgment as follows: A. That the Demurrer to the Complaint be sustained in its entirety, and/or as to eacherein, without leave to amend; B. That the Plaintiff take nothing by his Complaint; C. For reasonable attorney fees and costs incurred herein; and Court deems necessary and proper. Dated: _________________ [redacted] By: [redacted], Attorneys for Defendants DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 Table of Contents 1. Factual Summary............................................................................................................. by Demurrer, Which May Rely on MattersCORP’S Articles of Incorporation....................13 3. The Court Should Sustain Each of the Demurrers Because (a) the FAC Fails to Stateof Action against Demurring Defendantson Which Relief Can Be Granted, and (b) the FAC Is Uncertain, Ambiguousand Unintelligible........................................................................................................14 3.1 The Entire FAC Is Uncertain, Ambiguous and Unintelligible Because It Blurs theDistinction Between Partnership and Corporation................................................14 3.2. The FAC Fails to a Cause of Action Against PQRS CORP Because None of theEleven Causes of Action Is Alleged Against PQRS CORP..................................15 s Ownership or Right to Possession ofAny Allegedly Converted Property.......................................................................16 3.4. The First Cause of Action Is Uncertain, Ambiguous and Unintelligible BecauseCORP.....................................................................................................................16 s Sufficient to Constitute a Cause ofIntentional Misrepresentation................................................................................17 3.5.1. The Allegation of Damages Is Conclusory, Is Wholly Unsupported by AnyFactual Allegations of Damages, athe FAC............................................................................................................17 and Plaintiff’s Alleged Damages Face..................................................................................................................17 DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 srepresentation Was Not JustifiableBecause the Alleged Contract Induced Thereby Would Have Been Voidfor Lack of Consideration from Plaintiff.........................................................18 3.6. The Third Cause of Action for Fraud and Deceit (Fraudulent Concealment) IsUncertain, Ambiguous and Unintelligible because FAC ¶ 46 Is Ramblingand Incomprehensible............................................................................................18 Concealment Against the ADAMS DEFENDANTS............................................19 3.7.1. The Allegation of Damages Is Conclusory, Is Wholly Unsupported by AnyFactual Allegations of Damages, athe FAC............................................................................................................19 3.7.2. Justifiable Reliance Is Not Alleged........................................................................19 Fiduciary Duty Against the ADAMS DEFENDANTS.........................................19 3.8.1. The Allegation of Damages Is Conclusory, Is Wholly Unsupported by AnyFactual Allegations of Damages, athe FAC............................................................................................................19 3.8.2. Proximate Cause Is Not Alleged............................................................................19 Contract Against the ADAMS DEFENDANTS....................................................20 Exist As a Matter of Law...................................20 3.9.2. The Allegation of Damages Is Conclusory, Is Wholly Unsupported by AnyFactual Allegations of Damages, athe FAC............................................................................................................20 of Corporation) Is Uncertain, AmbiguousUncertain Whether It Is Referring to a Corporation or to a Partnership................20 State Facts Sufficient to Constitute a Cause oflution of Corporation or Liquidationof Corporation........................................................................................................21 DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 ssolved or Liquidated Because It IsNot Named as a Defendant to This Cause of Action.......................................21 ute Between Shareholders Is NotLiquidation of a Corporation...................21 State Facts Sufficient to Constitute aAgainst the ADAMS DEFENDANTS...................................................................22 State a Cause of Action for CommonCounts 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 Staintiff Was Wrongfully Detained.................23 3.16. The Tenth Cause of Action Fails to State a Cause of Action for Assault andBattery Against the INDIVIDUAL DEFENDANTS............................................24 3.16.1. Assault Is Not Adequately Alleged......................................................................25 3.16.1. Battery Is Not Adequately Alleged......................................................................25 Infliction of Emotional DistDEFENDANTS.....................................................................................................26 5. Conclusion........................................................................... DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 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 (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 Cal.App.4th 30...............................................................................................................18 search 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 DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 CCP §430.10................................................................................................................13, CCP §430.30......................................................................................................................14 Civil Code § 1550.............................................................................................................. Civil Code § 2223.............................................................................................................. Witkin Cal. Procedure (3d ed. 1985) Pleading § 508........................................................22 Jury Instructions: Civil Jury Instruction 1300................................................25 Civil Jury Instruction 1301................................................24 DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 Memorandum of Points and Authorities The definitions set forth in the Notice of Hearing and Demurrers are State Bar members are required to pass a tough Bar Exam as well as an investigationinto their moral character. But sometimes the system fails, and unworthy individuals become The FAC is extremely poorly written. So was the original Complaint. Indeed, theFAC was filed in response to a prior demurrer that pointed out numerous problems with theoriginal Complaint. Plaintiff’s counsel failed to grasp, much less fix, those problems, and theDefendants must therefore now repeat most of the content of the prior demurrer. Rather thanr demurrer, Plaintiff’s counselallegation that ROBERTS assaulte The FAC purports to state a case against the DEMURRING DEFENDANTS when noDemurrer and dismiss the FACwithout leave to amend. 1. Factual Summary Plaintiff, TOM and KENNY launched a garmcentages and investment amounts stated in FACder interest and required him to invest a loan to Plaintiff from TOM, TOM paidthe remaining $145,000 into PQRS CORP (FAC ¶ 16(2)(C)). TOM and KENNY eachinvested the full amounts required intoThe total capital investment was $700,000. l investment by TOM, but such additionalinvestment would be contingent upon a show the day-to-day management of PQRSCORP. Their trust was misplaced. After a period of time, it became clear that Plaintiff did DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 amount of time andcorporate funds with extremely disappointing re Plaintiff hired employees but mismanagedthem. The business descended into mayhem. records to determine what was going on. They learned that the mismanagement was far moreserious than they had previously imagined. On March 13, 2008 a board of directors meetingwas held and was attended by Plaintiff, TOresolution of the directors thereat, Plaintiff as an employee of PQRS CORP. Plaintiff became extremely angry and belligerent. TOM,KENNY and ROBERTS became concerned about security and the possibiequently, they changed the locks on the PQRSCORP premises. to the premises and began harassingcustomers and employees. He was asked to lthe police, who removed Plaintiff from the premises. camera tapes, show that there was nocomply with the police officers, whereupon theofficers had to become more assertive. ing the damage done to the business byPlaintiff. If they succeed at turning things around and making the business profitable, thenPlaintiff will benefit to the extent of his 35% shareholder interest. 2. Objections to Pleading May Be Taken by Demurrer, Which May Relyon Matters Judicially Noticed, Incl Objections to a pleading may be taken by demurrer. CCP §430.10 states: “The party against whom a complaint ... has been filed may object, bydemurrer ... to the pleading on any one or more of the following DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 (e) The pleading does not state facts sufficient to constitute a cause As used in this subdivision,‘uncertain’ includes ambi A demurrer may rely on matters judicially noticed. CCP §430.30(a) states: 430.30. (a) When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matteror may take judicial notice, theobjection on that ground may be taken by a demurrer to the pleading. Articles of Incorporation (hereinafter the “”). “[D]ocuments that were relied Falletti (1 Dist.,2001) 92 Cal.App.4th 1232 @ 1236. 3. The Court Should Sustain Each of the Demurrers Because (a) theFAC Fails to State Facts Sufficient to Constitute a Cause of Actionagainst Demurring Defendants on Which Relief Can Be Granted, and(b) the FAC Is Uncertain, Ambiguous and Unintelligible. the Distinction Between Partnership and Corporation. porations are fundamenttion, the FAC names PQRS CORP is a “California Corporation.” The ARTICLESMay 3, 2007. Therefore, as a matter of law, 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 can enforce, the one against the other.” DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 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 fact that the entitycreated by Miles and Scripps was a corporation, not a joint venture, precludes liability forbreach of fiduciary duty. By selecting the corporate form as a manner of achieving theirophisticated parties, elected thform and rejected the option and the benefits of v. Scripps Clinic & Research Found (S.D.Cal.1993) 810 F.Supp.1091 @ 1099. rties entered a partreferences a “Partnership Agreement” in ¶¶ 12the partnership was incorporated. As a ma“partnership agreement” might “Partnership Agreement” evolved into an“Amended Agreement” that somehow governs the corporate business. FAC ¶ 40 alleges thatPlaintiff agreed to an “amendment of the agreement” because TOM allegedly promised toinvest an additional one million dollars—pursuto refer to that same STOCK AGREEMENTas a “partnership agreement.” FAC ¶ 41 again refers to the STOCK AGREEMENT as a“partnership agreement.” FAC ¶ 59 alleges that to the “partners.” This chaotic form of pleading—blurring thof its causes of action as uncertain, ambiguousand unintelligible. Therefore, the Demurrer s 3.2. The FAC Fails to a Cause of Action Against PQRS CORP Because None of theEleven Causes of Action Is Alleged Against PQRS CORP. xth, Seventh, Eighth and Ninth Causes ofe ADAMS DEFENDANTS and Does 1 through 20, expressly alleged against INDIVIDUAL DEFE DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 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 ConversionOwnership or Right to Possession of AnyAllegedly Converted Property. on, three elements are required: (1) thea wrongful act or disposition of property rights; and (3) damages resulting from the 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 wasconverted or stolen by the ADAMS DEFENDANTS? Plaintiff agreed to invest $245,000 intherefore, Plaintiff received 35% of the st Defendants have converted or stolen Plaintiff’s stock in PQRS CORP. 3.4. The First Cause of Action Is Uncertain, Ambiguous and Unintelligible BecauseIt Makes Allegations Indicating Inconsistent Business Results for PQRS CORP. PQRS CORP’S total capital investment 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 thetotal capital investment. Such a conversion that in that same first year of operation PQRS CORP not only became amounts to approximately 342% of the $700,000 iexcellent first-year result for new business and, as a matter of law, is diametricallyinconsistent with the alleged massive 1 This it the sum of the $179,744.85, $40,527.00, $7,227.00, and $800,000.00 allegedly converted (FAC ¶ 32). DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 Against the ADAMS DEFENDANTS for Fr “[A]ctions for damage for fraud and deceit involves three distinct elements: (1) actualreliance, (2) damage resulting from such reliance,or justifiable reliance.” Panoutsopoulos v. Chambliss (1 Dist.,2007) 157 Cal.App.4th 297 @ 308. lusory, Is Wholly Unsupported by Any Here, Plaintiff alleges damages exceeding $2 million (FAC ¶ 42), but this is nothingmore than a legal conclusion. Such damageinvestment by Plaintiff of $100,000operation PQRS CORP not only became h means Plaintiff’s stock is worthat least $840,000 (35% of $2.4 million)—llegation of damages exceeding $2 million. Thus, as amatter of law, the FAC fails to plead the required element of damages. tween the Intentional Misrepresentation Even if damages exist, “[i]n fraud, the pleading must show a cause and effect relationship between the fraud and damages s aud is insufficient; the facts constituting thefraud must be alleged, and the policy of liberal construction of pleadings will not ordinarilyany 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 2 FAC ¶ 17 alleges that Plaintiff’s total investment was $245,000, of which FAC ¶ 16(2)(C) alleges $145,000was loaned to Plaintiff by TOM, which means Plaintiff’s cash outlay was the difference of $100,000. DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 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 capitalasset” 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 thatbe? Plaintiff only invested $100,000 and was paid a salary of $10,000 per month for manymonths! 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 profitablebusiness wishes to expand, additional investment might be needed, but reby Would Have Been Void for Lack of enter a “Partnership Agreement” whereinTOM agreed to invest “unlimited capital assets” (potentially bino corresponding “unlimited” consideration by the Plaintiff (whose investment was limitedto a mere $100,000). Such a “contract” would be Uncertain, Ambiguous and Unintelligible because FAC ¶ 46 Is Rambling and FAC ¶ 46 is rambling and incomprehensible. It appears to allege something or otherabout the Defendants having knowledge about something, failing to disclose something, andmisappropriating corporate money. However, itsthat the Defendants cannot comprehend what it isear to be somehow related to those in ¶ 46but cannot be comprehended due to the uncertainty of ¶ 46. DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 3.7. The Third Cause of Action Fails to State a Cause of Action for FraudulentConcealment Against the ADAMS DEFENDANTS “The elements of ordinary causes of action for [fraudulent concealment are] (1) afalse representation, concealment or nondisclosureinduce 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. lusory, Is Wholly Unsupported by Any As discussed above, Plaintiffs allegation of “damages” exceeding $2 million (FAC ¶48) is merely a legal conclusion, is whodamages, and contradicts othe 3.7.2. Justifiable Reliance Is Not Alleged. Even if damages exist, the FAC fails to alPlaintiff to act differently. What decision did Plaintiff make to his detriment that he wouldnot have made if he had known all the facts? This is simply not alleged. Fiduciary Duty Against the ADAMS DEFENDANTS. “The elements of a cause of action for breache the existence of afiduciary 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. lusory, Is Wholly Unsupported by Any As discussed above, Plaintiffs allegation of “damages” exceeding $2 million (FAC ¶54) is merely a legal conclusion, is whodamages, and contradicts othe 3.8.2. Proximate Cause Is Not Alleged. Even if damages exist, the FAC fails to allege that any breach of fiduciary duty by theADAMS DEFENDANTS proximately caused such damages. Even if the ADAMS DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 to disclose ... information and documents,and by misappropriating the corporate assets” as alleged in FAC ¶ 53, what harm did it causeto Plaintiff? On the contrary, the FAC alle worth over $2.4 million and that Plaintiff holds a 35% shareholder interest therein. Contract Against the ADAMS DEFENDANTS. “[T]he essential elements to be pleaded in an action for breach of contract are: (1) thecontract; (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. e agreement with Plaintiff...” (emphasis “partnership agreement.” Indeed the same ¶ 56 refers to “sharing the profits” which ispartnership terminology (the appropriate corporate terminology 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, theFifth Cause of Action for breach of contract must fail. lusory, Is Wholly Unsupported by Any As discussed above, Plaintiffs allegation of “damages” exceeding $2 million (FAC ¶57) is merely a legal conclusion, is whodamages, and contradicts other allegations in the defendants failed to invest $100,000, which is twenty-fold less than the $2 million FAC ¶to invest.) Without any damafor breach of contract must fail. / / / / / / / / / / / / / / / / DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 aratory Relief (Dissolution and LiquidationWhether It Is Referring to a Co FAC ¶ 59 refers on the one hand to a corporation, the dissolution of the corporation “irreconcilable difference and dispute” between the parties, which is partners.” Thus, the Sixth Cause of Action is uncertain because it is uncertain whether it is referring to a corporation or to a partnership. aratory Relief (Dissolution and Liquidationient to Constitute a Cause of Action for 3.11.1. PQRS CORP Cannot Be Declared Dissolved or Liquidated Because It Is NotNamed as a Defendant to This Cause of Action. 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 aC). It is elementary that aliquidated unless it is named as a defendant. pute Between Shareholders Is Not Lawful pute between shareholdehim of “no less than $875,000.” As explained amuch after less than a year or operations, theneen very well managedand its board of directors should be commended. the corporation should be managed is no grcontrolling shareholders' failure to meet the minority shareholders' reasmanaging the company is not grounds for invol Cal.App.4th 1106 @ 1113-1115. Involuntary liquidation is a drastic remedy and will not be DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 greements over business judgments or evenextreme hostility among the shareholders ... especially where the complaining shareholders Cal.App.4th 1268 @ 1277–1280. actice (CA Business Code § 17200) Againstthe ADAMS DEFENDANTS. FAC ¶ 63 makes the sweeping statement d above, Plaintiff has no factual basis to supportand “misappropriation” of corporate funds.Furthermore, as discussed above, Plaintiff has not been damaged— fired as corporate Secretary for his mismanagement of the corporation, and now seeks toretaliate 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 ofat least $2.4 million, which was attained in less than a year after he invested just $100,000and got paid $10,000 per month for his services! What is unfair, unlawful or fraudulentabout that? Nothing. In Khoury v. Maly's of Calif., Inc. ( upheld the sustaining of a demurrer to an unfaidescends into hopeless ambiguity, confusing cora matter of law to allege damages, and failing ice. This cause of action must therefore be dismissed. 3.13. The Eighth Cause of Action Fails to State a Cause of Action for CommonCounts 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 DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 action is stated for money had and received if thto the plaintiff in acertain 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 ofamounts comprises a debt payable to Plaintiff. Indeed, if such funds were improperlytransferred from PQRS CORP (which they, not to Plaintiff. The FAC makes no allegation of any “statement of indebtedness in a certain sum”—. Astonishingly, the FAC makes allegations action for common counts against Plaintiff—specifically, the was loaned to Plaintiff for the purchase of his stock (FAC ¶ 16(2)(C)). 3.13.1. Nonpayment Is Not Alleged. ADAMS DEFENDANTS failed to re Common Counts (Money Had and Received) On its face, The Eighth Cause of Action (FAC ¶¶ 65-69) rambles about variousrambling is describing any common counts payablefrom the ADAMS DEFENDANTS to Plaintiff. / / / / / / / / / / / / DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 Trust Against the ADAMS DEFENDANTS Because It Fails to Adequately AllegeThat Anything Owned By Plaintiff Was Wrongfully Detained. Throughout the FAC, numerous allegations are made that the ADAMS DEFENDANTSmisappropriated and/or secreted funds from Action, Plaintiff changes his tune and instead nebulously alleges that the they “illegallytransferred and converted the funds from Pl 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 uctive trust action by Plaintiff. Communist Party v. 522 Valencia, Inc. (1st Dist.,1995) 35 Cal.App.4th 980 @ 993). The only relevant cause of action must therefore be dismissed. State a Cause of Action for Assault andBattery Against the INDIVIDUAL DEFENDANTS. It is clear from the face of the FAC that the incidents alleged to have occurred onMarch 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 ADAMSPQRS CORP’S stock, and, as a matter of law,they therefore occupy a majority of the seats fire Plaintiff as Secretary. When a corporcircumstances, e INDIVIDUAL DEFENDANTS changed the DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 premises, and called the police who forciblyremoved Plaintiff from the premises. Such acts “One may use necessary force to prevent injury 1 Dist. 1929) 100 Cal.App. 188 @ 193. 3.16.1. Assault Is Not Adequately Alleged. by Restatement (Second) of Torts § 21 (1965), vil Jury Instruction 1301, which provides: An actor is subject to liabil ird person, or an imminent 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 inremotely supports that absurd ADAMS DEFENDANTS (acting with their attoPlaintiff and cause him to be removed from the premises. Thus, it is clear from the face oft” 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 ofalleged. This cause of action must therefore be dismissed. 3.16.1. Battery Is Not Adequately Alleged. The elements of a civil battery are: “1. resulted in a harmful or offensive contact with the plaintiff's person; [¶] 2. Plaintiff did notconsent to the contact; [and][¶] 3. The harmful or offensive contact caused injury, damage,loss or harm to the plaintiff.” Piedra 1495. Contact can be either “harmful” or “offensive.” Regarding “harmful” contact, FAC ¶ 84 makes the conclusory allega What injury? Clearly his ego was injured, but that will not suffice for alleging battery. DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 And if the alleged contact is merely “offensive” (but not “harmful”), then it must be. Restatement (Second) of Torts § 19 pr 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 “pulling” Plaintiff away from the business premises is unreasonable. Furthermore, as allegedin 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 of action must therefore be dismissed. 3.17. The Eleventh Cause of Action Fails to State a Cause of Action for IntentionalInfliction 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 deemotional distress; (2) severe or extreme emotional distress; and (3) the plaintiff's injuries were actually andproximately caused by the defendant's outrage The first element is missing from the FAC. Aside from its conclusory statements, theFAC alleges no extreme or outrageous bility of causing, emotionalCORP’S business property from Plaintiff. His emotional distress was caused by the damageto his ego from being fired. Firing a corporate officer is a normal and lawful act for any “extreme” or “outrageous” or“reckless” or “intending” to cause emotional distress. This cause of action must therefore bedismissed. Dated: _________________ Roberts & Associates [redacted] By: [redacted], Attorneys for Defendants DEFENDANTS PQRS CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’S NOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1256910141519202425 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, andam not a party to the within act On ___________, I caused to be served the following document(s): CORPORATION, TOM ADAMS, KENNY ADAMS AND PAUL ROBERTS’SNOTICE OF HEARING AND DEMURRER TO PLAINTIFF’S FIRST AMENDEDone or more envelopes addressed asfollows: [redacted] [redacted] [redacted] [redacted] United States mail at Los Angeles, California. I declare under penalty of perjury under the laws of the State of California that the foregoingis true and correct. Executed on _____________, at Los Angeles, California, ORDER SUSTAINING DEMURRER 1256910141519202425 [attorney info redacted] [redacted] [redacted] [redacted] [redacted] [redacted] Tom Adams and Kenny Adams, and for self, SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES CENTRAL DISTRICT JOHN SMITH, Plaintiff PQRS CORPORATION, a California TOM ADAMS, an individual; KENNY ADAMS, an individual; PAUL ROBERTS, an individual; and DOEs 1 to 20, inclusive, Defendants Case Number: [redacted] Assigned to:[redacted] [PROPOSED] ORDER SUSTAININGDEMURRER Complaint filed: [redacted] Hearing Date: ________ Hearing Time: ________ Hearing Dept.:[redacted] The Demurrer by Defendants PQRS Corporation, Tom Adams, Kenny Adams andPaul Roberts to Plaintiff John Smith’s First Amended Complaint, came on regularly fornoticed hearing on _______________ in Department ____ of this Court. Said DefendantsJohn Smith / / / / / / / / / / / / ORDER SUSTAINING DEMURRER 1256910141519202425 On proof made to the satisfaction of the Court that the demurrer ought to besustained, 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