demurrer to complaint - wordpress.com · defendant’s motion to strike) date: ... defendants...

Back to previous page: http://legalrequest.net/2013/05/30/draft-pleadings-criminal-or-civil/

Defendants Notice of and Demurrer to Plaintiff Jack D.'s Complaint

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

LAW OFFICES OF ATTORNEY

123 Main St. Suite 1

City, CA 912345

Telephone: (949) 123-4567

Facsimile: (949) 123-4567

Email: [email protected]

Attorney for DEFENDANTS, DAVE G. AND

XYZ INVESTMENTS, LLC (erroneously sued as XYZ Investment LLC)

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF ORANGE-CENTRAL JUSTICE CENTER

JACK D., an individual & minority

shareholder of XYZ INVESTMENT, LLC, a

limited liability company

Plaintiff,

v.

DAVE G., JIM G., PAUL C., California licensed

attorneys; XYZ INVESTMENT, LLC., a limited

liability company; CORP XYZ, an unknown

entity; Company Y, INC., an unknown entity;

KEN G., an individual; & Does 1-25.

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case # 0012345

NOTICE OF AND DEMURRER

OF DEFENDANT DAVE G. AND

XYZ INVESTMENTS, LLC TO

COMPLAINT OF JACK D.;

MEMORANDUM OF POINTS

AND AUTHORITIES IN

SUPPORT THEREOF

(Served concurrently with

Defendant’s Motion to Strike)

Date:

Time:

Judge Gregory Munoz

Dept.: C-13



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

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............................................................... ii

NOTICE ............................................................................................... 2

DEMURRER ........................................................................................ 2

MEMORANDUM OF POINTS AND AUTHORITIES ..................... 5

INTRODUCTION .......................................................................... 5

THE COURT SHOULD SUSTAIN THE SPECIAL DEMURRER

TO THE COMPLAINT BECAUSE THE COMPLAINT IS

UNCERTAIN, AMBIGUOUS AND UNINTELLIGIBLE.

(Code of Civil Procedure 430.10(f)) .............................................. 9

THE COURT SHOULD SUSTAIN THE GENERAL DEMURRER

TO THE SECOND THROUGH EIGHTH CAUSES OF ACTION BECAUSE THEY

FAIL TO STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF

ACTION.

(Code of Civil Procedure 430.10(e)) ............................................. 15

CONCLUSION .................................................................................... 21

i



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

TABLE OF AUTHORITIES

CASES Page(s)

Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal. App. 3d 531 .... 10

Applied Equip. Corp. V. Litton Saudi Arabia, Ltd. (1994) 7 Cal.4th 503 ... 16

Budd v. Nixen (1971) 6 Cal.3d 195 ............................................................. 18

Carlton v. Quint (2000) 77 Cal.App.4th 690 .............................................. 18

Christensen v. Superior Court (1991) 54 Cal.3d 868 ................................. 20

Cicone v. URS Corp. (1986) 183 Cal. App. 3d 194 .................................... 19

Conrad v. Bank of America (1996) 45 Cal. App. 4th

133. ........................... 19

Demetris v. Demetris (1954) 125 Cal. App.2d 440 ..................................... 17

Gaillard v. Natomas Co. (1989) 208 Cal.App 3d 1250 .............................. 17

Hughes v. Pair (2009) 46 Cal.4th 1035, ..................................................... 20

Khory v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612 ................. 10

Lange v. TIG Ins. Co. (1998) 68 Cal.App.4th 1179 .................................... 15

Lee v. Interinsurance Exchange (1996) 50 Cal.App.4th 694 ...................... 18

Maglica v. Maglica (1998) 66 Cal.App.4th 442 ......................................... 16

Metzenbaum v. Metzenbaum (1948) 86 Cal.App.2d 750 ............................ 10

Mosier v. Southern California Physicians Insurance Exchange (1998)

63 Cal.App.4th 1022 ............................................................................... 17

Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782 .................. 16

Oppenheimer v. General Cable Corp. (1956) 143 Cal.App.3d 293 ........... 10

Porten v. University of San Francisco (1976) 64 Cal.App.3d 825 ............. 15

Roddenberry v. Roddenberry (1996) 44 Cal. App. 4th

634 ......................... 19

Small v. Fritz Co., Inc. (2003) 30 C4th 167 ................................................ 19

Toscano v. Greene Music (2004) 124 Cal. App. 4th

685 ............................. 15

Wise v. Southern Pacific Co. (1963) 223 Cal.App.2d 50 ............................ 16

Yari v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172 ..... 15

ii



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

STATUTES

Cal. Civ. Code

Section 3294(c)(3) ....................................................................................... 18

Cal. Civ. Proc. Code

Section 430.30(e) ............................................................................ 2, 3, 4, 15

Section 430.30(f) ....................................................................................... 2, 9

Section 425.10(a)(1) .................................................................................... 15

Cal. Corp. Code

Section 16801(1)-(5) .................................................................................... 5

COURT RULES

California Rules of Court Rule 2.112(4) ..................................................... 10

OTHER AUTHORITIES

CACI No. 1600 ............................................................................................ 19

CACI No. 1620 ............................................................................................ 20

CACI No. 4106 ............................................................................................ 17

1 Witkin, Summary of California Law (10th ed. 2005) § 847 .................... 16

iii



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

TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on ________, 2010 at _____ a.m. or as soon thereafter

as may be heard in Department C-13 of the above entitled court, located at 700 Civic Center

Drive West, Santa Ana, CA, Defendants, DAVE G. AND XYZ INVESTMENTS, LLC

(erroneously sued herein as XYZ Investment LLC), jointly and severally, will and hereby do,

demur to the Complaint of Plaintiff JACK D. filed in this court on or about February 3, 2010.

Defendants, DAVE G. AND XYZ INVESTMENT, LLC demurrer to the entire Complaint

and, in the alternative, to each cause of action as stated herein.

This demurrer is based on this notice, the accompanying demurrer and

memorandum of points and authorities, all matters of which this Court may take judicial

notice, the pleadings and other papers on file in this action, and such further evidence and

arguments as may be presented at or before the hearing on this demurrer.

DEMURRER

Pursuant to the California Civil Procedure Code § 430.30(e) and (f), Defendants Dave

G. and XYZ Investments LLC, jointly and severally, hereby generally and specifically demur

the Complaint filed by Jack D. as follows:

SPECIAL DEMURRER TO THE COMPLAINT IN ITS ENTIRETY

The entire Complaint is ambiguous and unintelligible. (Cal. Civ. Proc. Code §

430.10(f)).

GENERAL DEMURRER TO THE SECOND CAUSE OF ACTION

(Promissory Estoppel)

Plaintiff’s second cause of action for Promissory Estoppel is subject to general

demurrer because it does not state facts sufficient to constitute a cause of action. (Cal. Civ.

Proc. Code § 430.10(e).)

///



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

GENERAL DEMURRER TO THE THIRD CAUSE OF ACTION

(Quantum Meruit)

Plaintiff’s third cause of action for Quantum Meruit is subject to general demurrer

because it does not state facts sufficient to constitute a cause of action. (Cal. Civ. Proc. Code

§ 430.10(e).)

GENERAL DEMURRER TO THE FOURTH CAUSE OF ACTION

(Breach of Fiduciary Duty)

Plaintiff’s fourth cause of action for Promissory Estoppel is subject to general

demurrer because it does not state facts sufficient to constitute a cause of action. (Cal. Civ.

Proc. Code § 430.10(e).)

GENERAL DEMURRER TO THE FIFTH CAUSE OF ACTION

(Professional Negligence/Legal Malpractice)

Plaintiff’s fifth cause of action for Professional Negligence/Legal Malpractice is

subject to general demurrer because it does not state facts sufficient to constitute a cause of

action. (Cal. Civ. Proc. Code § 430.10(e).)

GENERAL DEMURRER TO THE SIXTH CAUSE OF ACTION

(FRAUD)

Plaintiff’s sixth cause of action for Fraud is subject to general demurrer because it

does not state facts sufficient to constitute a cause of action. (Cal. Civ. Proc. Code §

430.10(e).)

GENERAL DEMURRER TO THE SEVENTH CAUSE OF ACTION

(Intentional Infliction of Emotional Distress)

Plaintiff’s seventh cause of action for Intentional Infliction of Emotional Distress is



///

///

///

GENERAL DEMURRER TO THE EIGHTH CAUSE OF ACTION

3



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

(Negligent Infliction of Emotional Distress)

Plaintiff’s eighth cause of action for Negligent Infliction of Emotional Distress is



WHEREFORE, Defendants Dave G. and XYZ Investments LLC pray that this

demurrer be sustained without leave to amend.

Dated: _________________ _________________________________

Attorney

Attorney for Defendants

Dave G. and XYZ Investments LLC

4



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

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

This demurrer is to Plaintiff’s initial complaint filed on February 3, 2010. The Complaint

– a rambling document of contentions, accusations, deductions and conclusions of fact

and law – is confusing, vague and lacks coherence. There are few statements of material

fact and many of the allegations have no understandable connection to Plaintiff’s claims

against the defendants. It is difficult to make sense of the Complaint but the defendants

offer their best efforts at summarizing the allegations of the plaintiff as follows:

First Cause of Action for Dissolution of Oral Partnership/Limited Liability

Company/Corporation: Plaintiff seeks dissolution of an alleged oral partnership on

grounds pursuant to California Corporations Code section 150321 et seq. (sic) (¶38) and

by judicial decree pursuant to California Corporations Code section 16801(1)-(5) et seq.

(sic) (¶40).

Plaintiff claims that an oral partnership was formed between Plaintiff and

Defendants known as XYZ Investments. (¶14) Plaintiff further claims that a limited

liability company was formed known as XYZ Investments LLC. (¶14) Plaintiff fails to

allege whether formation of the LLC was oral or written. Plaintiff does not state whether

the terms of the oral agreement forming the XYZ Investments partnership were the same

as the terms of the agreement forming the LLC nor does he allege that Defendant Dave

G. was a party to the formation of the LLC.

Plaintiff states that the “partnership profits and member shares” were divided as

“fee” received from “clients” wherein Plaintiff “contributed” $60,000 for which he “was

to receive” a 40% member share interest in the LLC and Dave G. and Paul C.

1 No such code exists.

5



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

(“C.”) “paid” $50,000 for which Dave G. “was to receive” a 40% member share interest

in the LLC and C. “was to receive” a 20% member share interest in the LLC. (¶15)

Plaintiff further alleges that the primary asset of the LLC was an “oral partnership

interest” which was to be reduced to writing in Corp XYZ.2 (¶17) Plaintiff also alleges

that $60,000 from Plaintiff and $50,000 from both Dave G. and C. were used to pay rents

on Corp XYZ. (¶18)

Plaintiff claims that he was to receive a salary of $5,000 per month to act as Chief

Operating Officer and General Manager of the LLC and Corp XYZ. (¶15) The complaint

does not state whether this was pursuant to an agreement and if so, whether such an

agreement was written or oral and with whom the agreement was made. Plaintiff further

claims that he did act as Chief Operating Officer and General Manager from March 2009

until he was removed from the premises3 (¶20, ¶21, ¶26). Plaintiff alleges that his actions

as Chief Operating Officer and General Manager resulted in bringing Corp XYZ to

profitability. (¶20) Plaintiff claims that he never received any salary. (¶22)

Plaintiff also claims he received an occasional repayment of funds he advanced4

and no “member share benefits.” (¶22) He further claims that he has been locked out of

shareholder, director and officer meetings and, although he has made repeated requests,

he has not received any accounting of the LLC or minutes of any meetings. ( ¶25, ¶26)

Plaintiff alleges that when he tried to attend a meeting5, C. said to Plaintiff in

front of all participants, “What is this felon6 doing in this meeting? Get out of here or

2 Plaintiff alleges that Ten Waterfront is a dinner club. (¶8)

3 Plaintiff claims that he was locked out of the Ten Waterfront and the LLC on July 5, 2009.(¶26)

4 Not identified until later in the Complaint.

5 The type and nature of the meeting was not identified.

6 In June 2009, in an action unrelated to the action herein, Plaintiff was arrested on one count of

fraud. (¶24) 6



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

I will personally see that you are arrested.” (¶27) He also alleges that C. and Dave G. have

threatened to have Plaintiff’s bail revoked and have him incarcerated. (¶ 29)

To this action, Plaintiff claims he was damaged in the amount of his initial

investment of $60,000, $5,000 per month from March to the date of the Complaint and

dividends and/or net income earned from Corp XYZ and the LLC. (¶30)

Second Cause of Action for Alleged Complaint for Promissory Estoppel: To this

cause of action, the plaintiff merely repeats the allegations in the first cause of action

verbatim. He further alleges that Dave G. and Paul C. made what he terms “excuses” for

not providing a monthly accounting to Plaintiff and that these excuses were used to “get

[Plaintiff] to continue without a draw for between March 2009 to present at a loss of

promised salary of $5,000 per month.” (¶73) He alleges the same damages as set forth in

the first cause of action. (¶60)

Third Cause of Action for Alleged Quantum Meruit: Plaintiff alleges that he

provided his particular experience, skills and expertise to Corp XYZ and that he should

be paid a reasonable value for his services rendered. (¶78, ¶79) He also alleges under this

cause of action that he advanced $20,000 of his own personal funds in order to open and

maintain Corp XYZ. (¶79) He alleges without any material representations of fact that

Dave G. and C. were unjustly enriched in that, although not directly stated but inferred

from the wording of the Complaint, they received income from the business. (¶79)

Fourth Cause of Action – Alleged Breach of Fiduciary Duty: Plaintiff alleges an

attorney-client relationship with Defendant Dave G. and simultaneously alleges that Jim

G. was to serve as Plaintiff’s attorney in matters related to Corp XYZ and the LLC. (¶

82(A) and (D)) The Complaint makes general allegations that Dave G. is the plaintiff’s

7



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

personal attorney and that he promised he “could” look out for the best interests of

Plaintiff. (¶ 82(C), ¶ 85) Plaintiff claims that Dave G. owed him a continuous fiduciary

duty by virtue of this alleged attorney-client relationship. (¶ 84) Plaintiff alleges that

through various acts as listed in paragraph 86 i-xiv, this duty was breached.

Plaintiff seeks damages in an amount no less than $100,000 and punitive and

exemplary damages of no less than $1,000,000.

Fifth Cause of Action for Alleged Professional Negligence/Legal Malpractice:

In a rambling and unintelligible paragraph (90), the plaintiff alleges that Dave G.

failed to exercise reasonable care and skill in undertaking legal services. Presumably, by

the allegations previously made, the plaintiff alleges that he had an attorney-client

relationship with Dave G. in matters related to the business of Corp XYZ and the LLC

without alleging any material facts that would establish that relationship.

To this action, Plaintiff seeks damages in an amount no less than $100,000 and

punitive and exemplary damages of no less than $1,000,000.

Sixth Cause of Action for Alleged Fraud: Paragraph 100 claims that the

defendants “abused the trust and confidence of Plaintiff by suppressing and concealing

the following:” and then lists at paragraph 101 the very same allegations made under the

fifth cause of action. These allegations contain no material facts of suppression and

concealment at all but are rather contentions and conclusions of fact and law.

To this action, Plaintiff again seeks damages in an amount no less than $100,000

and punitive and exemplary damages of no less than $1,000,000. (¶108)

Seventh Cause of Action for Alleged Intentional Infliction of Emotional Distress:

Plaintiff claims that all acts alleged in the Complaint were calculated to cause

intentional emotional harm to the plaintiff. (¶118) He offers no material facts in support

8



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

of this conclusion. He further alleges various physical and psychological damages as a

proximate result and claims damages of loss of earning capacity in an amount of no less

than $1,000,000. (¶ 119)

Eighth Cause of Action for Alleged Negligent Infliction of Emotional Distress:

Plaintiff claims that the acts alleged “were done in reckless disregard of the

consequences and results inflicted upon Plaintiff.” (¶ 121) He fails to plead any material

facts in support. He again alleges various physical and psychological damages as a

proximate result and claims damages of loss of earning capacity in an amount of no less

than $1,000,000. (¶ 123)

Ninth Cause of Action for Accounting: Plaintiff claims he is “entitled to

Dissolution of Partnership/Limited Liability Company/Corporation by judicial decree”

(¶ 124) and that defendants are in possession of the business assets and records of Corp

XYZ and XYZ Investments LLC (¶ 125) and have refused share the business information

with Plaintiff . (¶ 127; ¶ 132)

Tenth Cause of Action for Preliminary Injunction, Permanent Injunction and

Temporary Restraining Order. Plaintiff claims for all allegations set forth in the

Complaint, a Temporary Restraining Order and Preliminary Injunction should be issued

to preserve the status of the business entities that are the subject of this Complaint. (¶137)

I. THE COURT SHOULD SUSTAIN THE SPECIAL DEMURRER TO THE

COMPLAINT BECAUSE THE COMPLAINT IS UNCERTAIN,

AMBIGUOUS AND UNINTELLIGIBLE. (Code of Civil Procedure 430.10(f))

The entire Complaint is unintelligible; most of it is simply legal gibberish making

it an impossible task for the defendants to reasonably respond. A complaint is subject to

demurrer if it is uncertain. (Cal. Civ. Proc. Code §430.30(f).) Uncertainty includes

ambiguous and unintelligible pleadings. (Id.) A demurrer for uncertainty will be

9



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

sustained where the complaint is so bad that the defendant cannot reasonably respond;

i.e., the defendant cannot reasonably determine what issues must be admitted or denied,

or what counts or claims are directed against the defendant. (Khory v. Maly’s of

California, Inc. (1993) 14 Cal.App.4th 612, 616.) The Complaint also fails to identify the

parties against who each claim is asserted as required pursuant to California Rules of

Court Rule 2.112(4) making it even more difficult for Defendants to identify the claims

against them.

“It is settled law that a pleading must allege facts and not conclusions, and that

material facts must be alleged directly and not by way of recital. [Citation.] Also, in

pleading, the essential facts upon which a determination of the controversy depends

should be stated with clearness and precision so that nothing is left to surmise.

[Citation.]” (Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal. App. 3d 531, 537.)

A complaint must plead the essential facts with “reasonable precision and

sufficient clarity and particularity” so that a defendant is informed as to “the nature,

source and extent of his cause of action.” (Metzenbaum v. Metzenbaum (1948) 86

Cal.App.2d 750, 753, internal citations omitted.) Most of the allegations in the Complaint

are not ones of ultimate fact but rather contentions and conclusions without any clear

basis for making the claims against the defendants. “It is settled law that a pleading must

allege facts and not conclusions, and that material facts must be alleged directly and not

by way of recital. [Citation.]

In order to prepare a defense, the defendant is entitled to know the basis upon

which the plaintiff alleges he has been damaged. (Oppenheimer v. General Cable Corp.

(1956) 143 Cal. App. 3d 293, 298.) Here it is nigh impossible to discern what claims

Plaintiff is making against Defendants Dave G. and XYZ Investments LLC. The Plaintiff



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

alleges the formation of some sort of agreement between himself and the defendants but

the nature and terms of that agreement are ambiguous and uncertain.

///

///

///

The first cause of action is for dissolution of “oral partnership limited liability

company/corporation.” (First Cause of Action found between paragraphs 12 and 13.7) Is

the action for the dissolution of an oral partnership, a limited liability company or a

corporation? The complaint is entirely unclear as to which entity he seeks to dissolve by

this action. Plaintiff alleges that an oral partnership, XYZ Investments, was formed

between plaintiff, Dave G. and C.. (¶ 14). Plaintiff alleges that a California limited

liability company, XYZ Investments LLC (“LLC”), was formed. (¶ 14) Are the

partnership and LLC formed for the same purpose? Was the oral partnership agreement

reduced to a written agreement forming the LLC? The Complaint never alleges the

formation of a corporation. What corporation is Plaintiff seeking to dissolve?

Paragraph 15 refers to “the division of partnership profits” but fails to describe

any such division. Paragraph 15 also refers to “fees received from clients.” Fees for

what? Are Plaintiff, Dave G. and C. the “clients?” Paragraph 15(A) alleges that Plaintiff

“contributed” $60,000. Contributed to what? Was the “contribution” to the partnership,

the LLC? Paragraph 15(B) alleges that Dave G. and C. “paid” $50,000. Paid to what?

Was the “payment” to the partnership, to the LLC? Or were these payments to Steven

James and James Boys Inc. for rent on Corp XYZ8 as alleged in paragraph 18?

7 As the pages of the Complaint are not numbered, all references to the complaint will be by

paragraph.

8 Ten Waterfront is described as a dinner club in the Complaint. (¶4)



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

The ambiguity continues in paragraph 17 where the Complaint alleges that” the

primary asset of XYZ Investments LLC was an oral partnership interest” in Corp XYZ.

Was this oral partnership the same oral partnership referenced in paragraph 14 or another

oral partnership? Was it reduced to writing as allegedly promised?

Plaintiff alleges that he was to receive a salary of $5,000 per month to act as Chief

Operating Officer and General Manager of XYZ Investments LLC and Corp XYZ. (¶

15(C)) Plaintiff fails to identify whether this was an agreement or terms of the

partnership, the LLC, or Corp XYZ. Plaintiff fails to identify which entity was to pay him

this salary and he does not state whether this was pursuant to an agreement and if so,

whether such an agreement was written or oral and with whom the agreement was made.

Plaintiff alleges in paragraph 27 that he attended a meeting. He fails to identify the

purpose of that meeting and how it relates to the cause of action. Plaintiff alleges that he

has not been provided with access or inspection of the merchant account or checkbook.

(¶ 32) He fails to identify what accounts or checkbooks he seeks to inspect. Plaintiff

seeks “The Plan.” (¶ 35) It is uncertain what Plaintiff means when he refers to the “The

Plan.”

Typical of the legal gibberish found throughout this Complaint, the first sentence

of paragraph 36 states verbatim: “Because of the excuses set forth supra and refusal to

abide by the Oral Partnership Agreement/Limited Liability Company/Corporation

coupled with the major benefit including the legal, moral and fiduciary obligations to the

clients, it is requested that a forensic accountant be ordered.” It is unclear as to what

“excuses” he refers, as there are no excuses stated “supra.” Who does the plaintiff allege

refused to abide and how? Is the action against an oral partnership, a limited liability

company, or a corporation? What legal moral and fiduciary obligations to the clients?



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

Plaintiff alleged no material facts in this cause of action proving such obligations. And to

what “clients” does he refer? The entire sentence makes no sense in the context of the

pleading and it is impossible for defendant to respond to these allegations.

The plaintiff repeats the allegations exactly as found in paragraphs 14 through 42

under the first cause of action in paragraphs 44-72 in the second cause of action for

promissory estoppel. Defendants demurrer to the paragraphs in second cause of action for

uncertainty for the same reasons as set forth above. Paragraph 73 again refers to what he

claims are “excuses” and alleges that because of these excuses, Plaintiff “continued

without a draw . . . at a loss of promised salary. . . .” He fails to describe those excuses,

what he continued, who promised to pay the salary and who was to pay the salary. In the

next paragraph (¶ 74), the plaintiff refers to “excuses” made by Dave G. and C. for not

providing a monthly accounting to Plaintiff. He does not allege that these particular

excuses are the reason he continued without a draw at a loss of a promised salary nor is

there any apparent nexus between these “excuses” and his claim.

As to the third cause of action for quantum meruit, it is unclear as to whom

Plaintiff alleges owes him for the claimed services rendered (¶78) – the oral partnership,

the LLC or the unidentified corporation. Further, it is unclear why a claim for funds

allegedly advanced by Plaintiff (¶79 (D)) would be cognizable under a claim for quantum

meruit.

The fourth cause of action for breach of fiduciary duty is a four-page hodgepodge

of assorted contentions without any clear allegations to which the defendant could

reasonably respond. The plaintiff seems to make the conclusory allegation that the

fiduciary duty owed to the plaintiff by Defendant Dave G. was by virtue of an attorney-

client relationship. (¶ 82) It is entirely unclear how the plaintiff makes the claim of



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

attorney-client relationship other than to claim that Dave G. is an attorney and he has

represented the plaintiff in another matter unrelated to the business entities that are the

subject of this Complaint. (¶ 85(A))

As to the fifth cause of action for professional negligence/legal malpractice, the

plaintiff again alleges an attorney-client relationship for which he fails to offer any

material facts in support. He repeats the long-winded hodgepodge of contentions made in

the previous cause of action. Plaintiff never alleges that Dave G. was representing him as

his attorney in the matter of the business entities that are the subject of this Complaint. It

is impossible for the defendant to reasonably respond.

In the sixth cause of action for fraud, Plaintiff alleges that the defendants “abused

the trust and confidence of Plaintiff by suppressing and concealing from Plaintiff the

following:” (¶ 100) and then proceeds to list over a page of contentions (¶ 101), none of

which is a fact that was concealed or suppressed. Plaintiff follows with legal conclusions

without any basis for those conclusions. This cause of action rambles on incoherently and

without any direction. It is unclear by a plain reading of the Complaint how, when,

where, to whom, and by what means the fraud was achieved; it is even uncertain as to

what the fraud was that allegedly occurred.

The seventh and eighth causes of action for intentional and negligent infliction of

emotional distress make legal conclusions without any material facts thereon. The

defendant cannot respond to such allegations without knowing what acts he has done to

bring about the allegations.

The ninth cause of action for accounting rests on Plaintiff’s cause of action for

dissolution of oral partnership limited liability company/corporation. To the extent that

his claim for dissolution is entirely unclear as to which entity he seeks to dissolve by this

action, the accounting claim, too, is ambiguous. Defendant is uncertain as to what



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

business records Plaintiff believes he is entitled to an accounting of as he alleges

partnership, limited liability company and corporation books.

The tenth cause of action for a temporary restraining order and injunction is

improperly pled and subject to a motion to strike filed concurrently with this demurrer.

II. THE COURT SHOULD SUSTAIN THE GENERAL DEMURRER TO THE

SECOND THROUGH EIGHTH CAUSES OF ACTION BECAUSE THEY

FAIL TO STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF

ACTION. (Code of Civil Procedure 430.10(e))

General Demurrer to Plaintiff’s Second Cause of Action for Promissory Estoppel

“Promissory estoppel applies whenever a ‘promise which the promissor should

reasonably expect to induce action or forbearance on the part of the promisee or a third

person and which does induce such action or forbearance’ would result in an ‘injustice’ if

the promise were not enforced.” (Lange v. TIG Ins. Co. (1998) 68 Cal.App.4th 1179,

1185.) An essential element of promissory estoppel requires that there be a promise made

by the promissor to the promissee. (Id.) The Complaint simply fails to allege what

promise the defendants made to the Plaintiff.

A cause of action for promissory estoppel is fundamentally the same as that in contract

actions but missing the consideration element. (Yari v. Producers Guild of America, Inc.

(2008) 161 Cal.App.4th 172, 182.) "'Conceptually, promissory estoppel is distinct from

contract in that the promisee's justifiable and detrimental reliance on the promise is

regarded as a substitute for consideration required as an element of an enforceable

contract. . . .'" (Toscano v. Greene Music (2004) 124 Cal. App. 4th

685, 692-693.) A

complaint must contain “[a] statement of the facts constituting the cause of action, in

ordinary and concise language. (Cal. Civ. Proc. Code §425.10(a)(1).) However, even if

Plaintiff mistakenly labels his cause of action, if the complaint states a cause of action on



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

any theory, the Plaintiff is entitled to introduce evidence on that theory and the complaint

cannot be defeated simply because he misnamed the theory upon which he proceeds.

(Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 833.)

Even if the plaintiff meant to allege a breach of contract rather than promissory

estoppel, the plaintiff fails to plead facts sufficient to satisfy that the defendants have

breached any contract. “[T]he unjustified or unexcused failure to perform a contract is a

breach. Where the nonperformance is legally justified, or excused, there may be a failure

of consideration, but not a breach.” (1Witkin, Summary of California Law (10th ed.

2005) § 847, internal citations omitted.) While the plaintiff need not allege evidentiary

facts in the Complaint, he must allege sufficient facts to apprise defendants of the specific

conduct that violates the contract. (Wise v. Southern Pacific Co.(1963) 223 Cal.App.2d

50, 62, disapproved on other grounds, Applied Equip. Corp. V. Litton Saudi Arabia, Ltd.

(1994) 7 Cal. 4th 503, 510.) The Complaint fails to allege any specific conduct by the

defendants that informs defendants of the nature of the contract, their failure to perform

or that any alleged failure to perform was unjustified or unexcused.

General Demurrer to Third Cause of Action for Quantum Meruit

“To recover on a claim for the reasonable value of services under a quantum

meruit theory, a plaintiff must establish both that he or she was acting pursuant to either

an express or implied request for services from the defendant and that the services

rendered were intended to and did benefit the defendant.” (Ochs v. PacifiCare of

California (2004) 115 Cal.App.4th 782, 794, internal citation omitted.) “The idea that

one must be benefited by the goods and services bestowed is thus integral to recovery in

quantum meruit; hence courts have always required that the plaintiff have bestowed some

benefit on the defendant as a prerequisite to recovery. [Citation.]" (Maglica v.

Maglica (1998) 66 Cal.App.4th 442, 449-450.) The plaintiff fails to allege that the



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

defendants made any express or implied request for his services and he further fails to

establish what benefit was bestowed upon the defendants by virtue of his services.

Plaintiff does make the conclusory allegation that the defendants were “unjustly

enriched” from the “income from the business.” While Plaintiff alleges that under his

brief management Corp XYZ became profitable, he fails to plead any material fact that

any profits were, in fact, recorded under his tenure. He therefore fails to sufficiently plead

the necessary elements to a cause of action for Quantum Meruit.

General Demurrer to Fourth Cause of Action for Breach of Duty

"The elements of a cause of action for breach of fiduciary duty are: (1) existence

of a fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by

that breach. [Citation.]" (Mosier v. Southern California Physicians Insurance Exchange

(1998) 63 Cal.App.4th 1022, 1044.) The allegation that Dave G. breached his fiduciary

duty to Plaintiff by virtue of an attorney-client relationship conflates Dave G.’s personal

legal representation of Plaintiff on matters wholly separate from any alleged business

partnership with an alleged legal representation as a business partner. Plaintiff fails to

establish that Dave G. was his legal representative as it related to the business matters of

Corp XYZ and XYZ Investments LLC. Without such a relationship, Dave G. had no

fiduciary duty as an attorney to Plaintiff in the matters related the action herein.

Furthermore, Plaintiff fails to establish that he was harmed by any alleged breach of Dave

G.’s fiduciary duty to Plaintiff as his attorney or that Dave G.’s alleged conduct in his

capacity as an attorney was a substantial factor in causing the P harm. (CACI No. 4106.)

The breach of duty must have led to an advantage gained by the breaching party.

(Demetris v. Demetris (1954) 125 Cal. App.2d 440, 444.) If Plaintiff alleges other

breaches of fiduciary duty that are not entirely clear as alleged. He must plead essential

facts that show that any of the alleged breaches were done on Defendant’s own behalf



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

and not in the best interests of XYZ Investments LLC. (See Gaillard v. Natomas Co.

(1989) 208 Cal.App 3d 1250, 1263) The Complaint does not fulfill this requirement.

Plaintiff failed to include specific facts tending to show that actions taken by Defendant

which Plaintiff allege as breaches of duty were contrary to the interests of the LLC, such

that Defendant had a fiduciary duty to act differently than he did. (See Lee

v. Interinsurance Exchange (1996) 50 Cal.App.4th 694, 714-715.)

General Demurrer to Fifth Cause of Action for Professional Negligence/Legal Malpractice

The elements of a cause of action in tort for professional negligence are “(1) the

duty of the professional to use such skill, prudence, and diligence as other members of his

profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate

causal connection between the negligent conduct and the resulting injury; and (4) actual

loss or damage resulting from the professional’s negligence.” (Budd v. Nixen (1971) 6

Cal.3d 195, 200; Carlton v. Quint (2000) 77 Cal.App.4th 690,.) This cause of action

completely fails to establish any of the necessary elements. The Complaint is ambiguous

as to what professional duty Dave G. had to Plaintiff in the context of his business

partnership, is unclear as to what is meant by the allegation that Defendant “negligently

advised Plaintiff of the proper procedures in order” which is the only alleged duty

apparently breached under this cause of action and fails to establish what damage was

caused by this nebulous breach.

As to the allegation of legal malpractice also incorporated under this cause of

action, presumably this was meant to describe Dave G.’s professional negligence since a

complaint for legal malpractice normally assumes negligently performed legal services

on an underlying claim or other legal matter. Plaintiff makes no such allegation here.

///

///



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

General Demurrer to Sixth Cause of Action for Fraud

Civil Code section 3294(c)(3) provides: “ ‘Fraud’ means an intentional

misrepresentation, deceit, or concealment of a material fact known to the defendant with

the intention on the part of the defendant of thereby depriving a person of property or

legal rights or otherwise causing injury.” In order to claim fraud the facts must allege that

the defendants made a misrepresentation of a material fact (Roddenberry v. Roddenberry

(1996) 44 Cal. App. 4th

634, 665), knowing the material fact to be false (Cicone v. URS

Corp. (1986) 183 Cal. App. 3d 194) with the intent to induce the plaintiff to alter his

position to his injury or risk (Civil Code Section 1709) and that the plaintiff did in fact

rely on the defendant’s misrepresentation (Conrad v. Bank of America (1996) 45 Cal.

App. 4th

133, 157) which was the proximate cause of damage to the plaintiff. The

Complaint fails to plead any misrepresentation, deceit, or concealment of material fact

but rather list a series of allegations completely irrelevant to the complaint of fraud.

(paragraphs 101-108) All further elements follow from the misrepresentation, deceit, or

concealment of material fact and there can be no cause of action for fraud without this

element.

Moreover, “‘[i]n California, fraud must be pled specifically; general and

conclusory allegations do not suffice. [Citations.] 'Thus " 'the policy of liberal

construction of the pleadings ... will not ordinarily be invoked to sustain a pleading

defective in any material respect.' “[Citation.] This particularity requirement necessitates

pleading facts which "show how, when, where, to whom, and by what means the

representations were tendered." ‘“‘[Citation omitted.].” (Small v. Fritz Co., Inc. (2003) 30

C4th 167, 184.) The Complaint does not.

General Demurrer to Seventh Cause of Action for Intentional Infliction of Emotional Distress

To make a claim for intentional infliction of emotional distress, the plaintiff must

show that the defendant’s conduct was outrageous and that the defendant intended to

18



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

cause emotional distress or that the defendant acted with reckless disregard of the

probability that the plaintiff would suffer emotional distress, knowing that the plaintiff

was present when the conduct occurred and that the plaintiff did suffer severe emotional

distress and the defendant’s conduct was a substantial factor in causing that distress.

(CACI No. 1600.)

“[T]he defendant’s conduct must be ‘intended to inflict injury or engaged in with

the realization that injury will result.’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–

1051.) “It is not enough that the conduct be intentional and outrageous. It must be

conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the

defendant is aware.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903–904.)

“‘The law limits claims of intentional infliction of emotional distress to egregious

conduct toward plaintiff proximately caused by defendant.’ [Citation.] “(Christensen, 54

Cal.3d at pp. 905–906, internal citations omitted.)

There are no factual allegations made in the Complaint that Defendant Dave G.

either by his conduct intended to inflict emotional distress upon the Plaintiff or actually

caused emotional distress to the Plaintiff by outrageous conduct in the presence of

Plaintiff. On either theory of intentional infliction of emotional distress, the Complaint

fails to plead the elements necessary to sustain the claim.

General Demurrer to Eighth Cause of Action for Negligent Infliction of Emotional Distress

To establish this claim the plaintiff must prove that the Defendant’s negligence

was a substantial factor in causing Plaintiff serious emotional distress. (CACI No. 1620)

Plaintiff simply makes the conclusory statement that the acts alleged in paragraphs 101-

108 were done in reckless disregard of the consequences and results inflicted upon

Plaintiff. The acts alleged in paragraphs 101-108 fail to state any acts of negligence.



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

Without sufficient facts, the claim of negligent infliction of emotional distress cannot

withstand the demurrer.

Conclusion

For all the foregoing reasons, Defendants Dave G. and XYZ Investments

LLC respectfully requests that the Court sustain these demurrers in their entirety, without

leave to amend.

Dated: _________ _____________________________

Attorney

Attorney for Defendants

Dave G. and XYZ Investments LLC

21

demurrer to complaint - wordpress.com · defendant’s motion to strike) date: ... defendants...

Documents