Request Judicial Notice

Cal. Super. - 6th Dist.September 21, 2016

PILLSBURY WINTHROP SHAW PITTMAN LLP ANDREW D. LANPHERE 191479 2 WILLlAM T. PALMER 312923 Four Embarcadero Center, 22nd Floor 3 San Francisco, CA 941 1 1-5998 Telephone: 415 .983. I 000 4 Facsimile: 415.983.1200 5 Attorneys for Defendants THE BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY 6 (sued as Leland Stanford Junior University) and WILLIAM J. PERRY 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA 10 11 MICHAEL HANNEKEN, 12 Plaintiff, 13 vs. 14 LELAND STANFORD JUNIOR UN1VERSITY, WILLIAM J. PERRY, DOES 15 1-50, 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants. --------------------' Case No. l 6-CV-300285 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS' MOTION TO SEVER EQUITABLE AND LEGAL ISSUES FOR TRIAL AND TRY EQUITABLE ISSUES FIRST Date: May 15, 20 18 Time: 9:00 a.m. Dept.: 19 Judge: Hon. Peter H. Kirwan Complaint Filed: September 21 , 2016 Trial Date: None set. REQUEST FOR JUDICIAL NOTICE IN SUPP. OF DEFENDANTS' MOTION TO BIFURCATE Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/26/2018 1:27 PM Reviewed By: A. Hwang Case #16CV300285 Envelope: 1348638 16CV300285 Santa Clara - Civil A. Hwang l To Plaintiff and his attorneys of record: 2 PLEASE TAKE NOTICE that, pursuant to subdivision (d) of Evidence Code 3 section 452, defendants The Board of Trustees of the Leland Stanford Junior University 4 ("Stanford") (sued as Leland Stanford Junior University) and William J. Perry ("Secretary 5 Perry") (collectively, "Defendants") hereby request that, in connection with its ruling on the 6 Defendants' motion to bifurcate and sever, the Court take judicial notice of the following 7 records on file in this action, true and correct copies of which are attached hereto as 8 indicated below: 9 10 11 12 13 14 15 16 Exhibit A B C Description Plaintiff Michael Hanneken's First Amended Complaint ("FAC"), filed in Michael Hanneken v. Leland Sta11ford Junior University, William J. Perry, Does 1-50, Case. No. 16-CV-300285 on January 20, 2017. Order Granting in Part and Denying in Part Defendants' Demurrer to the F AC, issued in Michael Hanneken v. Leland Stanford Junior University, William J. Perry, Does 1-50, Case. No. 16-CV-300285 on April 20, 2017. Defendants ' Answer to the FAC, filed May 9, 2017. 17 Under Evidence Code section 452(d), this Court may properly take judicial notice of 18 pleadings filed in California courts. (See e.g., In re A.B. (2008) 164 Cal.App.4th 832, 839 19 [ observing that under section 452( d), judicial notice may be taken "of a record of any court 20 in this state"].) Exhibit A is the operative complaint, the FAC fi led by Plaintiff Michael 21 Hanneken. Exhibit B is the Court's Order granting in part and denying in part Defendants' 22 demurrer to the FAC. Exhibit C is Defendants ' Answer to the FAC. The exhibits were 23 filed in this case, and accordingly are properly subject to judicial notice pursuant to 24 Evidence Code section 452(d). 25 Ill 26 Ill 27 Ill 28 Ill 2 REQUEST FOR JUDICIAL NOTICE IN SUPP. or DEFENDANTS' MOTION TO BlfURCATE 2 3 4 5 6 7 8 9 10 l 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: March 26, 20 18 3 Attorneys for Defendants THE BOARD OF TRUSTEES OF THE LELAND STANFORD JUNlOR UNIVERSITY (sued as Leland Stanford Junior University) and WILLIAM J. PERRY REQUEST FOR JUDICIAL NOTICE IN SUPP. OF DEFENDANTS' MOTION TO BIFURCATE EXHIBIT A 1 JAMES McMANIS (40958) TYLER ATKINSON (257997) 2 JAMES GIACCHETTI (307117) McMANIS FAULKNER 3 a Professional Corporation 50 West San Fernando Street, 10th Floor 4 San Jose, California 95113 Telephone: ( 408) 279-8700 5 Facsimile: ( 408) 279-3244 . Email: jgiacchetti@mcmanislaw.com 6 Attorneys for Plaintiff, 7 MICHAEL HANNEKEN 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 10 FOR THE COUNTY OF SANTA CLARA 11 MICHAEL HANNEKEN, Case No.: 16-CV-300285 12 13 VS. Plaintiff, FIRST AMENDED COMPLAINT FOR: (1) BREACH OF CONTRACT 14 LELAND STANFORD JUNIOR (2) PROMISSORY ESTOPPEL UNIVERSITY, WILLIAM J. PERRY, DOES 15 1-50, (3) NEGLIGENT MISREPRESENTATION 16 17 18 ·19 20 1. Defendants. DEMAND FOR JURY TRIAL INTRODUCTION Lieutenant Colonel Michael Hanneken (''Colonel Hanneken," or "plaintiff') is a 21 veteran of the War in Afghanistan, a lifelong member of the United States Army Reserves, a 22 husband, and a father. He holds Bachelor's and Master's degrees from Monmouth College and 23 Washington University in St. Louis. Additionally, Colonel Hanneken has completed the 24 Advanced Management Development Program in Real Estate at Harvard University. 25 2. Colonel Haimeken is an entrepreneur. After many years of success working for 26 Bay Area professional services firms, in 2003, Colonel Hanneken founded Real Estate Strategies 27 and Solutions ("RESS.") RESS advises executives of prominent public and private sector capital 28 projects. RESS is a highly successful advisory firm that implements and supports commercial 1 FIRST AMENDED COMPLAINT FOR BREACH OF CONTRACT PROMISSORY ESTOPPEL AND NEGLIGENT MISREPRESENTATION, Case No.: 16-CV-300285 1 2 3 4 5 6 and large infrastructure projects. For example, RESS is a key advisor on the $70 billion-dollar high speed rail project in California. Colonel Hanneken is the owner and manager of the firm. 3. Despite his business success, Colonel Hanneken decided to return to graduate school in his mid-forties to begin a doctoral program at Stanford University ("Leland Stanford Junior University," or ''Stanford University," or "Stanford") with the particular goals of enhancing his military and professional career. His decision was based on statements by 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Stanford personnel assuring him that Stanford could support his military career priorities. 4. For Stanford, he was a desirable doctoral student applicant: a trained architect, and field grade officer in the U.S. Army Reserves, with recent combat-zone experience, including assisting with USAID and the State Department on economic development projects in southern Afghanistan, and the proprietor of a highly successful advisory firm operating in California. Colonel Hanneken is assigned to the Special Operations Command which, among other missions, plans and oversees complex projects in wru·-tom countries. His credentials and experience present uncommon multidisciplinary research capabilities that could contribute to the influence of Stanford on U.S. security and international policy more broadly. Stanford desires and accepts students possessing these and similar qualities. 5. As a result of numerous conversations with Stanford personnel, Colonel Hanneken enrolled in a Stanford doctoral program under the reasonable belief that Stanford, and in particular former Secretary of Defense William Perry ("Secretary Peny") would provide valuable career support by submitting, among other considerations, a letter of recommendation supporting Colonel Hanneken's request to the U.S. Military for Professional Military Education Constructive Credit ("constructive credit"). During a personal meeting, which occurred in the second month of classes during Colonel Hanneken's first year at Stanford, Secretary Perry promised to provide Colonel Hanneken a letter of recommendation supporting his application for constructive credit, in exchange for taking specific courses and performing security-based doctoral research not otherwise required of Colonel Hanneken. Ill 2 FIRST AMENDED COMPLAINT FOR BREACH OF CONTRACT PROMISSORY ESTOPPEL AND NEGLIGENT MISREPRESENTATION, Case No.: 16-CV-300285 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 6. Colonel Ham1eken remained enrolled at Stanford, and took specific courses and engaged in security-based doctoral research in reliance on Secretary Perry's promise, sacrificing prime economic growth years of business prospects. Had Secretary Perry not made specific representations and promises to Colonel Hanneken, Colonel Hanneken would not have continued at Stanford, and he would not have taken specific courses or engaged in specific research, in reliance thereon. Colonel Hanneken reasonably believed Secretary Perry would keep his word and follow through on his commitments, and further reasonably believed that Secretary Perry spoke for Stanford. As an elite political and governmental leader, and a Stanford faculty member with significant decision-making authority and experience, Secretary Perry's word carries significant weight. 7. Colonel Hanneken sought Secretary Perry's letter of recommendation supporting his application with the military on several occasions. Colonel Hanneken waited patiently; he reasonably believed that, as an elite professor, Secretary Perry was occupied with personal and academic matters. E-mails went unanswered, phone calls unreturned, with no explanation by either Stanford or Secretary Perry. Eventually it became known that, despite Colonel Hanneken's considerable sacrifices and full completion of his promises, Secretary Perry would not honor his commitments. Chief among the broken promises, Secretary Perry did not tender the letter of support for Colonel Hanneken. Colonel Hanneken's reliance on Secretary Perry's promise increased his time at Stanford by years. Colonel Hanneken reasonably took Secretary Perry and Stanford at their word. He passed up substantial opportunities as a result. PARTIES 8. Plaintiff, Michael Hanneken is a Ph.D. student at Stanford University, as well as a resident of the County of Contra Costa, California. 9. Defendant, Leland Stanford,Junior University, is and at all relevant times was, a California business entity formed on February 14, 1901, and operates as a private, co-educational university under the laws of the State of California, located in the Stanford neighborhood of the County of Santa Clara, California. 3 FIRST AMENDED COMPLAINT FOR BREACH OF CONTRACT PROMISSORY ESTOPPEL AND NEGLIGENT MISREPRESENTATION, Case No.: 16-CV-300285 1 2 3 4 5 6 7 8 9 10 10. Defendant, William J. Perry, is and at all relevant times was, a Professor Emeritus at Stanford University, a senior fellow at the Freeman Spogli Institute for International Studies, the director of the Preventive Defense Project at the Center for International Security and Cooperation, and a resident of the County of Santa Clara. 11. Colonel Hanneken sues fictitious defendants DOES 1 through 50, inclusive, pursuant to Code of Civil Procedure section 474. Colonel Hanneken does not know their true names or capacities, but upon ascertainment, will amend this complaint with such names and capacities. Colonel Hanneken is informed and believes and on that basis alleges that each of said fictitiously named defendants is responsible in some manner for the occurrences herein alleged, and that Colonel Hanneken's damages were proximately caused by their conduct. 11 12 13 14 15 JURISDICTION AND VENUE 12. Jurisdiction is proper under Code of Civil Procedure section 410.10. Stanford is incorporated under the laws of California, and engages in business in California. Stanford has substantial and continuous contacts with California, and its principal place of business is located in the County of Santa Clara. Colonel Hanneken is a resident of California, and entered into an 16 agreement with Secretary Perry in the County of Santa Clara. Colonel Hanneken performed his 17 18 19 20 21 obligations under the agreement in the County of Santa Clara. Secretary Perry is an active professor Emeritus at Stanford, entered into an agreement in his capacity as a Stanford professor in the County of Santa Clara, and is a resident of the County of Santa Clara. Secretary Perry failed to honor his agreement in the County of Santa Clara. Colonel Hanneken was harmed in Santa Clara County by Secretary Perry's failure to honor his agreement. On information and 22 23 24 25 26 27 28 belief, DOES 1-50 are agents of Stanford University, and their actions occurred, and were later ratified, in the County of Santa Clara by Secretary Perry and Stanford University. Venue is proper in the County of Santa Clara because Stanford is located, and the subject of the claims occurred, in the County of Santa Clara. Ill I II 4 FIRST AMENDED COMPLAINT FOR BREACH OF CONTRACT PROMISSORY ESTOPPEL AND NEGLIGENT MISREPRESENTATION, Case No.: !6-CV-300285 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 ALLEGATIONS 13. Colonel Hanneken.is aLieutenant Colonel in the United States Military. He served recently in the War in Afghanistan from 2011 through 2012. While in Afghanistan, Colonel Hanneken served both as an infantry officer and advised the U.S. State Department on reconstruction projects. Among other commendations for his service, Colonel Hanneken was awarded the USAID Meritorious Honor Award in 2012, the Combat Infantry Badge, and Army Commendation medals. Colonel Hanneken is currently assigned to the U.S. Special Operations Command. 14. Before relocating to the Bay Area for the express purpose of attending Stanford, Colonel Hanneken completed a military assignment at the U.S. State Department facility in Taipei. Additionally, as the owner of RESS, Colonel Hanneken was networking with a prime federal contractor on multimiHion-dollar real estate development contracts while residing with his family in Taiwan. 15. Colonel Hanneken chose to attend Stanford University, as opposed to other universities which provide educational and research opportunities for U.S. military officers and military personnel, because of statements made to him by Stanford University personnel, Tracy Hill, Dmitry Soustin, Dr. Zegart and Debra Gordon at Stanford's Center for International Security and Cooperation ("CISAC") prior to completing Stanford University's application process and relocating from Taiwan. A military "think tank," CISAC is devoted to research on security and international cooperation. CISAC is a multidisciplinary community dedicated to bringing together scholars, policymakers, area specialists, business people, and other experts to focus on current security issues. Before enrolling at Stanford, Colonel Hanneken engaged in purposeful discussions with CISAC personnel regarding his intent to seek constructive credit. Constructive credit allows a service member to apply educational credit earned while taking university courses with military application towards courses offered at the U.S. Army War 26 27 28 College. Among other benefits, obtaining constructive credit approval would excuse Colonel Ill 5 FIRST AMENDED COMPLAINT FOR BREACH OF CONTRACT PROMISSORY ESTOPPEL AND NEGLIGENT MISREPRESENTATION, Case No.: 16-CV-300285 1 2 3 4 5 6 Hanneken from spending a year at the U.S. Army War College by applying the time he spent studying at Stanford to U.S. Army War College requirements. 16. During those pre-enrollment discussions, Colonel Hanneken specifically inquired whether Secretary Perry, as the director of the War College program at Stanford University, could provide him a letter of recommendation supporting a request for constructive credit. Secretary Perry - a Professor Emeritus at Stanford and director of the Preventive Defense Project 7 for CI SAC - communicate's directly with heads of the defense department. Secretary Perry 8 9 10 11 12 13 14 15 16 17 oversees Military Fellows at Stanford University who receive military credit for their academic studies at Stanford. As such, a letter from Secretary Perry, a former cabinet member, supporting Colonel Hanneken's request for constructive credit would be a compelling recommendation, Further, Secretary Perry's status as a director of the War College Fellows at Stanford University, among other distinctions, reasonably lead Colonel Hanneken to believe that Secretary Perry possessed authority as a Stanford University professor to send a letter supporting Colonel Hanneken's request. Stanford War College Fellows are active duty military personnel assigned to study at CISAC by auditing classes and participating in security~based academic research. Military service members are eligible for, and routinely request, constructive credit for the time spent studying at institutions such as Stanford. Colonel Hanneken accepted Stanford's offer of 18 19 20 21 22 23 24 25 26 27 28 admissions only after receiving strong indication that Colonel Hanneken's military and academic priorities, including his pursuit of constructive credit, would be supported by Stanford. 17. Colonel Hanneken remained at Stanford only after receiving assurance that Colonel Hanneken's priorities would be supported by Stanford. Immediately after starting at Stanford, and in preparation for his anticipated meeting with Secretary Perry, Colonel Hanneken met in person with several more CISAC related faculty, to include Steve Stedman, Amy Zegart, Karl Eikenberry and Tom Fingar, who were all encouraging of his military and academic objectives. In response to Colonel Hanneken's direct inquiries concerning constructive credit, Stanford representatives stated that Stanford would consider Colonel Hanneken's military and professional priorities, and expressed no concern that Secretary Perry would not consider 6 FIRST AMENDED COMPLAINT FOR BREACH OF CONTRACT PROMISSORY ESTOPPEL AND NEGLIGENT MISREPRESENTATION, Case No.: !6-CV-300285 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 supporting his request for a letter. The co-director of CISAC, Dr. Amy Zegart, made it clear that there may be creative ways to support and engage Colonel Hanneken for the purposes of obtaining constructive credit, because Secretary Perry, a director at CISAC, is the sole person to consider whether to support a request for constructive credit. CISAC personnel arranged a meeting between Colonel Hanneken and Secretary Perry to discuss constructive credit. Dr. Zegart put Colonel Hanneken in contact with CISAC employee, Debra Gordon ("Ms. Gordon"), who facilitated the meeting between Colonel Hanneken and Secretary Perry. 18. As a result of Colonel Hanneken' s favorable discussions with Stanford personnel, during which he expressed the central role obtaining support from Secretary Perry played in his decision to attend Stanford, on November, 21, 2013, Colonel Hanneken met privately with Secretary Perry. Before his meeting, Secretary Perry had been apprised of Colonel Hanneken's professional and military background, facts surrounding Colonel Hanneken's decision to attend Stanford, and that a material reason for his attending Stanford was to obtain Secretary Perry's support. Also before meeting in person with Secretary Perry, Colonel Hanneken submitted to Secretary Perry a multiple page research proposal summary of research interests to pursue at CISAC, and explained his military career plans in writing. Also before the meeting, both Stanford and Secretary Perry were aware of the substantial financial sacrifices Colonel Hanneken would be making by continuing his enrollment at Stanford and by pursing an extended period of study and research. 19. During their private meeting, Colonel Hanneken and Secretary Perry entered into an agreement. Colonel Hanneken offered to take security-based courses and perform security- based doctoral research involving CISAC and incorporating interdisciplinary fields of engineering and project finance, in exchange for Secretary Perry's promise to sign and send a letter of recommendation to the U.S. Military supporting Colonel Hanneken's request for constructive credit. Secretary Perry's letter would recommend that Colonel Hanneken be granted constructive credit for the courses he completed at Stanford University because of their relevance and similarity to classes taught at the U.S. War College, and further, because of 7 FIRST AMENDED COMPLAINT FOR BREACH OF CONTRACT PROMISSORY ESTOPPEL AND NEGLIGENT MISREPRESENTATION, Case No.: 16-CV-300285 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 Colonel Hanneken's program similarities with active-duty officers attending CISAC's Military Fellowship at Stanford. Colonel Hanneken was not obligated to take security-based courses, or perform security-based research, to successfully complete his academic program at Stanford. If Colonel Hanneken failed to take courses and perform research as promised, Secretary Perry would not have been obligated to provide a letter of recommendation supporting Colonel Hanneken's request for constructive credit. 20. Upon hearing Colonel Hanneken's proposed research topic and military aspirations, Secretary Perry agreed to Colonel Hanneken's proposal. Secretary Perry enthusiastically agreed to provide Colonel Hanneken a letter of reconunendation in support of his request for constructive credit, and personally call the general officer with the authority to approve the request on Colonel Hanneken's behalf to ensure his request would be properly considered in accordance with existing army regulations. Colonel Hanneken's proposal benefited Secretary Perry and Stanford in many ways. Secretary Perry was willing to agree to provide the letter because Colonel Hanneken's courses and research were similar to those taken by the Stanford War College Fellows Secretary Perry oversees, and who receive, by default, War College credit. Additionally, as a professor of engineering and director at CISAC, Secretary Perry was eager to support a student who possessed interdisciplinary research skills highly useful to CISAC. The applicability of Colonel Hanneken' s research to timely military operations differentiated Colonel Hanneken from many other students. Such original research is highly valued, and contributes to CISAC research. Furthermore, Colonel Hanneken's work with current operations at Special Operations Command, and the publication of Colonel Hanneken's research, advance CISAC's interests in being associated with research on U.S. security policy. This agreement was made immediately known to Secretary Perry's assistant and colleague, Ms. Gordon. Secretary Perry's agreement confirmed what Colonel Hanneken had been told by Stanford personnel before he enrolled at Stanford. 21. Relying on his agreement with Secretary Perry, Colonel Hanneken took specific courses, engaged in specific research, and developed a dissertation topic integrating fields of 8 FIRST AMENDED COMPLAINT FOR BREACH OF CONTRACT PROMISSORY ESTOPPEL AND NEGLIGENT MISREPRESENTATION, Case No.: 16~CV-300285 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 engineering, military policy/security, and project finance to study economic stabilization due to reconstruction of essential services, focusing on the governance of critical infrastructure in conflict-effected economies. Colonel Hanneken's unique security-based doctoral research required that he emoll, attend, and perform well in academic courses otherwise not required of an engineering doctoral student, and in which he otherwise would not have enrolled. In accordance with the agreement, Colonel Hanneken took courses and engaged in research similar to Stanford War College Fellows, and reasonably related to courses offered at the U.S. Army War College. As agreed, this ensured that Secretary Perry's letter of recommendation supporting Colonel Hanneken's constructive credit request for such courses would be substantially justified. 22. Stanford University knew that a primary purpose in attending Stanford was for Colonel Hanneken to obtain support for his constructive credit request. Colonel Hanneken had numerous conversations with Stanford personnel about constructive credit before emolling. Only after Stanford personnel made it certain that Secretary Perry would consider providing Colonel Hanneken a letter supporting his reque~t for constructive credit did Colonel Hanneken commit to attend Stanford University. Stanford knew that if CISAC personnel had not assured Colonel Hanneken that Secretary Perry would consider providing a letter of support for constructive credit, Colonel Hanneken would not have emolled at Stanford. Secretary Perry, knowing the facts and circumstances surrounding Colonel Hanneken's decision to attend Stanford, knew that a material reason Colonel Hanneken's remained enrolled at Stanford was his agreement with Secretary Perry. Both Secretary Perry and Stanford knew that if Secretary Perry had not promised to sign and send a letter in support of Colonel Hanneken's request for constructive credit, or alternatively, had stated there would be institutional impediments to such a letter, or, stated that he would not provide a letter, Colonel Hanneken would not have taken specific courses, pursued security-based doctoral research, or continued at Stanford. Further, Stanford knew that, but-for attending Stanford, Colonel Hanneken would have continued managing his business, RESS, as a full-time and highly profitable endeavor. II I 9 FIRST AMENDED COMPLAINT FOR BREACH OF CONTRACT PROMISSORY ESTOPPEL AND NEGLIGENT MISREPRESENTATION, Case No.: 16-CV-300285 2 3 4 5 6 23. After reaching the agreement, Colonel Hanneken took specific courses, and engaged in security-based doctoral research. On February 18, 2014, Colonel Hanneken offered Secretary Perry a draft of a memorandum stating Secretary Perry's support for Colonel Hanneken's request for constructive credit. Secretary Perry was capable of completing his part of the agreement at that time by, among other things, signing and submitting the letter. Secretary Perry was able review, edit, and mail the letter and its contents would have been accurate, 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . because Colonel Hanneken was taking courses and engaging in research, as promised. 24. Colonel Hanneken continued taking courses and engaging in research in reliance on his agreement with Secretary Perry. On March 1.8, 2014, Colonel Hanneken presented his research to two CISAC personnel. Both expressed satisfaction with Colonel Hanneken's course performance and research progress. Colonel Hanneken performed as he had promised Secretary Perry he would, and his security-based doctoral research was progressing well. Colonel Hanneken continued reasonably to believe Secretary Perry would provide the letter and other valuable support. Secretary Perry knew or should have known that Colonel Hanneken was taking courses and conducing security-based doctoral research in reliance on Secretary Perry's promise. 25. Ms. Gordon, the executive director of the Preventive Defense Project at Stanford University, co-directed by Secretary Perry, made introductions on Colonel Haimeken's behalf to other Stanford and CISAC personneL Based on that conduct, Colonel Hanneken believed his agreement with Secretary Perry remained in effect, although he had not heard from Secretary Perry. Several times thereafter, Colonel Hanneken sought to contact Secretary Perry about the agreement to provide the letter. Ms. Gordon repeatedly stated that Secretary Perry was "unavailable" because he was recovering from surgeries. Colonel Hanneken believed Secretary Perry was recovering from surgeries, and that Secretary Perry's time on campus was limited. He believed Secretary Perry was not avoiding him. Further, because requests for constructive credit may be submitted to the military on a rolling· basis, Colonel Hanneken was not concerned that he would miss a hard deadline. Colonel Hanneken reasonably believed that, as a matter of common I II 10 FIRST AMENDED COMPLAINT FOR BREACH OF CONTRACT PROMISSORY ESTOPPEL AND NEGLIGENT MISREPRESENTATION, Case No.: l 6-CV-300285 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 courtesy and professionalism, if Secretary Perry intended not to honor the agreement, he, or Ms. Gordon, would have notified Colonel Hanneken of that decision. 26. By the start of classes in the Fall Term ofthe 2014-2015 academic year, Ms. Gordon stopped returning Colonel Hanneken's calls and failed to respond to requests to meet. Colonel Hanneken spoke with Secretary Perry about the draft memorandum previously submitted to Ms. Gordon; Secretary Perry told Colonel Hanneken to speak with Ms. Gordon about the matter. In accordance with Secretary Perry's instruction, on December 8, 2014, Colonel Hanneken met with Ms. Gordon and her assistant. During the meeting, Colonel Hanneken asked Ms. Gordon to arrange for Secretary Perry to provide the letter of support as agreed. Ms. Gordon stated that "it cannot be done," notifying Colonel Hanneken for the first time that Secretary Perry would not provide the letter, as promised. 27. Only after Colonel Hanneken had completed nearly a year and a half of studies did Ms. Gordon inform him the agreement would not be honored. During that time, Colonel Hanneken had taken over 20 credit hours of classes solely for security studies/research. Colonel Hanneken chose to remain enrolled at Stanford University to obtain a doctorate, even after learning that Secretary Perry would not honor his agreement, as a means of mitigating the harm caused after dedicating years to obtain an advanced degree while neglecting millions of dollars of business opportunities at RESS. Colonel Hanneken decided not to apply to other War College schools after investing a year and a half in the professors and colleagues at Stanford, and not wanting to uproot his family again. 28. As a result of the additional coursework taken and research performed in reliance on his agreement with Secretary Perry, Colonel Hanneken's academic career at Stanford was extended by three years. In July of 2016, Colonel Hanneken asked Secretary Perry to provide a letter supp?rting his application, without response. Thereafter, he began the process of submitting a request for constructive credit without the support of Secretary Perry. I II Ill 11 FIRST AMENDED COMPLAINT FOR BREACH OF CONTRACT PROMISSORY ESTOPPEL AND NEGLIGENT MISREPRESENTATION, Case No.: 16-CV-300285 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 FIRST CAUSE OF ACTION [Breach of Contract - Against All Defendants] 29. Plaintiff hereby incorporates by reference the allegations of paragraphs 1 through 28, above. 30. On or about November 21, 2013, plaintiff and defendants entered into an oral agreement. 31. Plaintiff has performed all conditions, covenants, and promises required on his part to be performed in accordance with the terms and conditions of the contract. 32. On or about February 18, 2014, plaintiff requested that defendants perform their obligations under the contract. 33. On or about December 8, 2014, plaintiff discovered that defendants refused to honor the agreement, and breached the contract. 34. As a proximate result of defendants' breach of contract, Colonel Hanneken was harmed and damaged in an amount according to proof at trial. SECOND CAUSE OF ACTION [Promissory Estoppel - Against All Defendants] 35. Plaintiff hereby incorporates by reference the allegations of paragraphs i through 28, above. 36. Further or in the alternative, on or about November 21, 2013, Secretary Perry confirmed the above described promises and representations that Stanford University personnel made to Colonel Hanneken before enrolling in security-based courses at Stanford. 37. On or about November 21, 2013, Secretary Perry promised to provide Colonel Hanneken support, including a letter ofrecommendation supporting Colonel Hanneken's application for constructive credit. 38. In so doing, Secretary Perry knew or should have known that Colonel Hanneken would be reasonably induced to rely on Secretary Perry's promises and representations. 39. Defendants h_ave not performed any part of their promises or representations. 12 . FIRST AMENDED COMPLAINT FOR BREACH OF CONTRACT PROMISSORY ESTOPPEL AND NEGLIGENT MISREPRESENTATION, Case No.: 16-CV-300285 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 40. As a proximate result of defendants' failure to perform, plaintiff was harmed and damaged in an amount according to proof at trial. 41. Injustice may be avoided only by enforcing defendants' promises and representations. THIRD CAUSE OF ACTION [Negligent Misrepresentation -Against All Defendants] 42. Plaintiff hereby incorporates by reference the allegations of paragraphs 1 through 28, above. 43. Further or in the alternative, on or about November 21, 2013, Secretary Perry confirmed the representations of Stanford University personnel and made additional representations to Colonel Hanneken. 44. On or about November, 21, 2013, Secretary Pe1Ty stated that he would provide Colonel Hanneken support, including a letter of recommendation supporting Colonel Hanneken's request for constructive credit. Secretary Perry also did not inf01m Colonel Hanneken of any supposed impediments to providing this support, which would have been a material omission. 45. The representations of defendants were in fact false. 46. When defendants made these representations, they had f).O reasonable ground for believing them to be true. 47. Defendants made these representations with the intention of inducing plaintiff to act in reliance on these representations in the manner alleged, or with the expectation that plaintiff would so act. 48. Plaintiff reasonably relied on these representations, and was harmed. 49. Plaintiffs reliance on defendants' representations was a substantial factor in causing his harm. 50. As a proximate result of defendants' representations, Colonel Hanneken was harmed and damaged in an amount according to proof at trial. 13 FIRST AMENDED COMPLAINT FOR BREACH OF CONTRACT PROMISSORY ESTOPPEL AND NEGLIGENT MISREPRESENTATION, Case No.: 16-CV-300285 1 2 PRAYER FOR RELIEF WHEREFORE, plaintiff prays for judgment against defendants for damages according to 3 proof at trial, an order enforcing defendants' promises, and any such other relief as to which 4 plaintiff may be entitled. 5 DATED: January 20, 2017 6 7 8 9 McMANIS FAULKNER JAMES MCMANIS TYLER ATKINSON JAMES GIACCHETTI Attorneys for Plaintiff, MICHAEL HANNEKEN DEMAND FOR JURY 10 11 12 13 Pursuant to Article 1 section 16 of the California Constitution, and all statutory authority 14 enacted pursuant thereto, plaintiff hereby requests a jury trial on any and all issues so triable. 15 16 DATED: January 20, 2017 McMANIS FAULKNER 17 18 19 20 21 22 23 24 25 26 27 28 14 JAMES MCMANIS TYLER ATKINSON JAMES GIACCHETTI Attorneys for Plaintiff, MICHAEL HANNEKEN FIRST AMENDED COMPLAINT FOR BREACH OF CONTRACT PROMISSORY ESTOPPEL AND NEGLIGENT MISREPRESENTATION, Case No.: 16-CV-300285 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF SANTA CLARA 3 I am employed in the County of Santa Clara, State of California. I am over the age of 18 4 and not a party to the within action; my business address is 50 West San Fernando Street, 10 th Floor, San Jose, California 95113. My email address is: eschneider@mcmanislaw.com. 5 6 7 On January 20, 2017, I served the foregoing document described as: (1). FIRST AMENDED COMPLAINT. on the parties in this action by placing a true copy(ies) or the original(s) thereof enclosed 8 in a sealed envelope(s) addressed as follows: 9 10 11 12 Andrew D. Lanphere Pillsbury Winthl'op Shaw Pittman,LLP Four Embarcadero Center, 22nd Floor San Francisco, CA 94111~5998 Attorneys for Defendants The Board of Trustees of the Leland Stanford Junior University (sued as Leland Stanford Junior University) and William J. Perry ~ (BY PERSONAL DELIVERY) I caused the documents to be served by leaving it in an 13 envelope or package clearly labeled to the person at the below with a receptionist or with a 14 person having charge thereof. 15 1v1 161 (STATE) I declare under penalty of pe1jury under the laws of the State of California that 16 the foregoing is true and correct. 17 Dated: January 20, 2017 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE, CASE NO. !6CV300285 Elena K. Schneider EXHIBIT B \OOOQQUi-PWNr-t NNNNNNNNNHr-‘HHHHr-Ar-Ap-AH mflamgmNHoomflom-pwwb‘o ENDQ V‘FingED zan APR 20 A u: 22' SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MICHAEL HANNEKEN, ' Case No.2 16-CV-300285 Plaintiff» ORDER RE: DEMURRER To FAC VS. LELAND STANFORD JUNIOR UNIVERSITY, et 211., Defendants. The demurrer t0 the first amended complaint filed by defendants Leland Stanford Junior University and William J. Perry came on for hearing before the Honorable Maureen A. Folan on April 20, 2017, at 9:00 am. in Department 8. The matter having been submitted, the Court orders as follows: This is a breach of contract and fraud action initiated by plaintiff Michael Hanneken (“P1aintiff’) against defendants Leland Stanford Junior University (“Stanford”) and William J. Perry (“Secretary Perry”) (collectively “Defendants”). According t0 the allegations 0f the operative first amended complaint (“PAC”), Plaintiff is a military veteran and lifelong member 0f the United States Army Reserves. (FAC, 1] 1.) In addition to being a veteran, Plaintiff is also an entrepreneur who created a successful 1 ORDER RE: DEMURRER [\) ©OOQOUI-PDJ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 professiong‘IIES-évlixékijces firm (Idrrellt 112.) Despite his success as a businessman, Plaintiff decided t0 return t0 graduate school with the goal 0f enhancing his military career. (Id at 1] 3 ) Plaintiff enrolled at Stanford 1n order to achieve those goals after having numerous conversations With Stanford persOnnel, including Secretary Perry. (FAC, 1] 5.) Plaintiff enrolled under the belief Stanford would help his military career. (Ibid) Prior t0 enrolling, Plaintiff asked staff and faculty at Stanford whether he would be able t0 receive constructive credit as a student at Stanford. (Ibid) Constructive credit allows a service member to apply educational credit towards courses offered at the United States Army War College. (Id. at fl 15.) Staff and faculty responded that they believed he would be able to obtain constructive credit and Secretary Perry was solely in charge 0f recommending a student receive it. (Id. at 11 17.) Two months after Classes began, Plaintiff obtained. a meeting with Secretary Perry. (Id. at 1] 5.) During the meeting, Secretary Perry promised t0 provide Plaintiff With a letter of recommendation supporting his request for constmctive credit in exchange for Plaintiff enrolling in specific courses and perfgrming security-based doctoral research not otherwise required. (Ibid) Plaintiff subsequently enrolled in those courses and engaged in security-based doctoral research in reliance 0n Secretary Perry’s promise. (Id. at 1] 6.) After several requests for the letter of recommendation, Plaintiff was told Secretary Perry would not provide one. (Id. at ‘fi 7.) The PAC does not allege Whether Plaintiff received constructive credit. The PAC asserts causes 0f action for breach 0f oral contract, promissory estoppel, and negligent misrepresentation. Currently before the Court is Defendants’ demurrer to each cause 0f action on the ground 0f failure to state facts sufficient t0 constitute a cause 0f action. I. Request for Judicial Notice In support of the demurrer, Defendants request judicial notice of the following documents filed in this action: (1) the FAC; (2) the original complaint; and (3) defendants’ demurrer to the original complaint. These court documents are proper subjects for judicial notice pursuant to Evidence Code section 452, subdivision (d), Which allows courts to take judicial notice of court records. Additionally, the documents are relevant t0 issues under review in the demurrer. 2 ORDER RE: DEMURRER N QOOQQM-PUJ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Silverado Modjeska Recreation and Park Dist. v. County ofOrange (201 1) 197 Ca1.App.4th 282, 307 [A precondition t0 judicial notice is that the matter t0 be noticed be relevant t0 a material issue before the court].) Accordingly, the request for judicial notice is GRANTED. II. Meet and Confer Defendants’ attorney filed a declaration in support of the demurrer stating'he met and conferred With Plaintiff s counsel prior to filing the demurrer. (Lamphere Decl., 1H] 2, 3.) In opposition, Plaintiff’s attorney filed a declaration in Which he states Defendants’ attorney “did 77 4‘ not offer a compromise to demurrer, summarized an abbreviated version 0f the table 0f contents” during their discussion, “mentioned additional arguments,” and “provided a few case citations.” (Giacchetti Decl., fl 4.) Plaintiff’s attorney further attests counsel for Defendants misrepresented the depth 0f the issues discussed during their telephone call. (Id. at 1] 6.) While Plaintiff does not affirmatively state the meet and confer was inadequate, he suggests this by his comments. ‘ Pursuant t0 Code of Civil Procedure section 430.41, subdivision (a), prior t0 filing a demurrer, the moving party shall meet and confer With the party Who filed the pleading to determine whether an agreement can be reached that would resolve the objections raised by the demurrer. During the meet and confer process, “the demurring party shall identify all 0f the specific causes 0f action that it believes are subject to demurrer and identify with legal support the basis 0f the deficiencies.” (Code CiV. Proc., § 430.41, subd. (20(1)) The party Who filed the pleading shall, in turn, provide legal support for his or her position that it is legally sufficient. (Ibid) Here, counsel for both parties discussed the merit 0f the arguments raised in the demurrer 0n the telephone 0n February 10, 2017. (Lamphere Decl., fl 2.) After this discussion, the parties exchanged e-mafls addressing their conversation and summarizing their conversation. Plaihtiff’s counsel states they discussed all three causes 0f action. (Giacchetti Decl., Exhibit A.) Counsel for Defendants replied to the e-mafl and emphasized that the demurrer to the FAC would be 3 ORDER RE: DEMURRER OKOOOflQUI-PUJNr-A NNNNNNNNNr-Ar-Ar-‘HAHHy-AHy-ty-n substantially similar to the demurrer filed t0 the original complaint.1 (Id. at Exhibit B.) Plaintiff’s attorney was in possession of the demurrer t0 the original complaint and able t0 consult it in order to View specific legal authority. (Ibid) Based on the above facts, Defendants adequately met and conferred With Plaintiff prior t0 filing this demurrer. Defendants identified each cause 0f action at issue in the demurrer and legal support addressing their arguments. To the extent Plaintiff asserts Defendants inadequately met and conferred because they did not offer to compromise, there is n0 legal authority requiring a party to offer t0 compromise. The fact that two parties could not come to an agreement does not render the meet and confer process inadequate. Therefore, Defendants sufficiently met and conferred with Plaintiff. III. Merits 0f the Demurrer A. First Cause of Action - Breach 0f Oral Contract Defendants argue Plaintiff fails t0 plead an enforceable contract, the elemenf 0f causation, and the authority for Secretary Perry to contract 0n Stanford’s behalf. Defendants additionally argue the étatute 0f frauds bars the claim. 1. Enforceability of the Contract Defendants assert 'the terms 0f the contract are so vague the contract is void. Specifically, Defendants contend Plaintiff does not specify the contents of the recommendation letter, and the contract is therefore too vague t0 enforce. In addition, Defendants argue the promise Plaintiff made to take secun'ty-based research classes and perform security-based doctoral research is ambiguousk ' “Where a contract is so uncertain and indefinite that the intention 0f the parties in material particulars cannot be ascertained, the contract is void and unenforceable.” (Ladas v. California State Auto. Assn. (1993) 19 Ca1.App.4th 761, 770, citations omitted.) For example, the promise t0 consider changing policies t0 achieve pay parity is indefinite because the promise to “consider” 1's amorphous. (Ibid) 1 The demurrer was not heard by the Court because Plaintiff filed the PAC prior t0 the hearing, rendering the demurrer moot. 4 ORDER RE: DEMURRER \OOOQONU‘l-DUJNH NNNNNNNNNr-Ab-AHHr-xv-AHr-ap-AH OOQQLh-PWNr-‘OOOOQO‘xm-DWNr-‘O Here, the terms of the contract are sufficiently definite. As persuasively argued by Plaintiff, the allegations Clearly reflect the promises each party allegedly made. Plaintiff adequately pleads Secretary Perry promised to write a letter of recommendation to strengthen his application for constructive credit, and in return, Plaintiff promised t0 enroll in certain COUrses. Further, Plaintiff alleges key factual details supporting the existence 0fthe alleged promises. For example, Plaintiff alleges that prior to the meeting With Secretary Perry, he provided a letter detailing What courses he would take and the focus of the research. (PAC, 1m 18-21 .) The Court finds the allegations 0f the existence 0f the contract to be sufficiently definite. Accordingly, the demurrer on the basis the contract is not enforceable is not sustainable. 2. Causation Defendants identify the alleged damages as the receipt of constructive credit and argue this injury could not have been caused by the failure to provide a letter 0f recommendation because Plaintiff do es not allege his request for constructive credit has been denied. In opposition, Plaintiff states Defendants improperly limit the scope 0f alleged damages. T0 state a claim for breach 0f contract, the plaintiffmust plead his 0r her damages were proximately caused by the defendant’s actions. (US Ecology, Inc. v. State (2005) 129 Ca1.App.4th 887, 909.) While Plaintiff acknowledges the non-receipt of constructive credit is an alleged injury, he also points to other alleged injuries that were caused by reliance 0n Defendants’ promises. Plaintiff pleads that due t0 his extra time at Stanford, he sacrificed substantial economic opportunities with his successful business company and spent three years longer than necessary at Stanford. (PAC, W 6-7, 27, 28.) Plaintiff further allegeshe only enrolled in these courses and invested his time into the doctoral research because of Defendants’ promise t0 provide him With a recommendation. Thus, Defendants’ identification 0f Plaintiff’s alieged damages only focuses 0n the receipt of constructive credit and ignores the other alleged damages. AS a result, Defendants’ argument does not fully address Plaintiffs’ alleged injury. Therefore, the demurrer is not sustainable 0n the basis Plaintiff fails t0 plead the element of causation: 5 ORDER RE: DEMURRER OOOQONU‘t-PUJNH NNNNNNNNNHr-AHHHp-Ap-Ap-AHH OONONUl-PWNP-‘ODOOQQUI-PWNHO 3. Authority to Enter into Contract Defendants contend Plaintiff fails t0 allege Secretary Perry had authority t0 contract on Stanford’s behalf because he does not allege any acts by Stanford suggesting Secretary Perry had ostensible authority t0 enter it into contracts. It appears Defendants intend to argue that as a result of the lack of ostensible authority, Stanford did not cohsent to the contract. Consent is an essential element to the existence of a contract. (Civ. Code, § 1550.) An agent may be authorized t0 carry-out any ordinary business transaction 0n behalf 0f the principal, including entering into contracts. (Wittaker v. Otto (1961) 188 Cal.App.2d 619, 623; see also CiV. Code, §§ 2304-2309.) There are two types of such authority: actual and ostensible. (Tomerlin v. Canadian Indem. C0. (1964) 61 Ca1.2d 638, 643.) - Neither party advances any argument that Secretary Perry had actual authority t0 bind Stanford t0 a contract; the only form of authority at issue is ostensible authority. “[O]stensible authority arises as a result of conduct of the principal Which cause the third party reasonably t0 believe that the agent possesses the authority t0 act on the principal’s behalf.” (Tomerlin v. Canadian Indem. Ca, supra, 61 Ca1.2d at p. 643.) "‘Ostensible agency cannot be established by the representations 0r conduct 0f the purported agent; the statements or acts 0f the principal must be such as t0 cause the belief the agency exists.” (1L. v. Children’s Institute, Inc. (2009) 177 Ca1.App.4th 388, 404.) An agent’s authority may be implied from the circumstances ofa particular case. (Kelley v. RF. Jones C0. (1969) 272 Ca1.App.2d 113, 120.) The principal’s consent t0 the agency need not be express. (Tomerlin v. Canadian Indem. C0,, supra, 61 Cal.2d at p. 644) Here, Plaintiff alleges Secretary Perry is the director 0f the War College at Stanford University, director 0f the Preventative Defense Project for Center for International Security and Cooperation (“CISAC”), and a professor emeritus. (FAC, 1T 16.) Plaintiff additionally pleads Secretary Perry oversees Military Fellows at Stanford Who receive military credit for academic stfidies ~ the same transaction at issue here With respect t0 the constructive credits Plaintiff sought. (Ibid) Secretary Perry is allegedly the sole person at Stanford t0 decide whether to support a request for constructive credit. (Id. at 1] 18.) Further, other Stanford personnel 6 ORDER RE: DEMURRER \OOOQQUI-D 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 represented Secretary Peny would consider Plaintiff’s request for constructive credit should he choose to attend Stanford. (Id. at W 3, 5, 15, 22.) The Court finds these allegations sufficiently reflect that Stanford held Secretary Perry out as someone who could provide a letter of recommendation for Plaintiff t0 receive constructive credit, particularly as he is allegedly the only individual at Stanford Who may grant such requests. Accordingly, the demurrer is not sustainable 0n the basis Plaintiff failed t0 plead Secretary Perry had authority t0 enter into a contract. 4. Statute 0f Frauds Defendants assert the breach 0f contract cause 0f action is barred by the statute 0f frauds because the promise t0 perform certain coursework took Plaintiff years to fulfill. Therefore, according t0 Defendants, “[t]hese allegations establish that the coursework Plaintiff alleges was part ofhis side bargain could not have been performed Within one year.” (Mem. Ps. & As., p. 8: Iis. 23-26.) The statute 0f frauds is codified in Civil Code section 1624, which in relevant part provides that an oral contract is unenforceable ifby its terms it Will not be performed Within one year 0r during the lifetime 0f the promisor. “T0 fall within the words of this provision . . ., the agreement must be one 0f Which it can truly be said at the very moment it is made, ‘[t]his agreement is not to be performed Within one year[.]”” (White Lighting C0. v. Wolfion (1968) 68 Ca1.2d .336, 343, fn. 2, citations omitted.) “A general demurrer may be interposed When the complaint shows 0n its face that the agreement sued 0n is Within the statute of frauds and does not comply with its requirements.” (Parker v. Solomon (1959) 171 Ca1.App.2d 125, 136.) Here, the contract does not clearly fall Within the statute 0f frauds because the alleged terms of the contract d0 not expressly preclude performance Within one year. Defendants’ entire argument is predicated 0n the fact Plaintiff alleges it took three years t0 complete certain coursework. However, that fact alone does not preclude the possibility of completing the coursework in less than one year. There are no facts alleged in the FAC suggesting it was impossible for Plaintiff t0 complete the agreed-upon coursework Within one year, and it is 7 ORDER RE: DEMU'RRER QOOQOUI-PUJNH [\J [\3 [\J [\3 N [\D [\D N [\J r-t r-a r-A p-a H r-a r-a r-s y-A p-a OO fl O\ U1 -P U) N *-‘ O KO 00 fl O\ -U‘I h U) [\J H O otherwise conceivable that the coursework could have been completed Within one year. Therefore, the demurrer is not sustainable 0n the basis it is barred by the statute of frauds. 5. Conclusion In sum, Defendants fail t0 advance any successful argument that could serve as a basis for sustaining the demurrer t0 the breach 0f contract claim. Accordingly, the demurrer t0 the first cause 0f action on the ground of failure t0 state sufficient facts t0 constitute a cause 0f action is OVERRULED. B. Second Cause 0f Action - Promissory Estoppel Defendants assert Plaintiff fails to plead a claim for promissory estoppel because he does not adequately allege a clear and, unambiguous promise, the element of reliance, and. the element 0f injury. Defendants additionally contend the claim is barred by the statute of frauds. 1. Promise Defendants advance the same argument here that the promise is ambiguous as it does With respect t0 the breach of contract claim. Once again, Defendants contend the promise to write a recommendation letter is vague because Plaintiff does not plead the exact contents 0f the letter. One element of a claim for promissory estoppel is “a promise Clear and unambiguous in its terms[.]” (Laks v. Coast Fed. Sav. & Loan Assn. (1976) 6O Ca1.App.3d 885, 890.) A promise has been held not t0 be clear and ambiguous when the promise was not intended to be final and there Will undoubtedly be further negotiations. (Ibid) Such is not the case here. For the reasons stated abovei the Court finds this promise t0 be sufficiently definite. Thé fact that Plaintiff does not plead the exact contents 0f the letter is not determinative as the promise contains key provisions as to what must be written in fhe letter, 1.6. support for receiving constructive credit. The alleged facts d0 not suggest any additional negotiation was required 0r that the parties did not decide a term 0f the promise. Accordingly, the demurrer is not sustainable on the basié the promise is not clear and ambiguous. 8 ORDER RE: DEMURRER \OOOQO‘NUI-bUJNH NNNNNMNNHr-Ay-Ar-ar-As-lp-Ar-An-Ap-A SJOQO‘th-thfi-‘OQOOQQUIAWNP-‘O 2. Reliance Defendants insist Plaintiff fails t0 adequately plead the element 0f reliance because reliance was not reasonably foreseeable. Defendants additionally argue Plaintiff fails t0 plead the element of reliance because he alleges the existence 0f consideration in connection with a breach 0f contract Claim, Le. a promise that was “bargained for.” Therefore, it appears Defendants intend to argue Plaintiff may not plead inconsistent claims. Reliance is an element 0f a claim for promissory estoppel, and. such reliancé must be reasonably foreseeable. (Laks v. Coast Fed. Sav. & Loan Assn, supra, 6O Ca1.App.3d at p. 890.) In‘other words, a plaintiff must allege “[a] promise Which the promisor should reasona‘bly expect to induce action or forebearance 0f a definite and substantial Character 0n the part 0f the promise[,]” (Diede Const, Inc. v. Monterey Mechanical C0. (2004) 125 Ca1.App.4th 380, 385.) Defendants assert Plaintiff does'not plead he reasonably relied on Secretary Perry’s promiée because he does not plead any facts supporting the conclusion that such reliance was reasonably foreseeable: In support, Defendants point t0 a lack 0f any allegations suggesting Plaintiff told anyone at Stanford he was relying 0n Secretary Perry’s promise. This contention lacks merit. A review of the pleading reveals Plaintiff adequately pleads the element of reasonably foreseeable reliance. Prior to enrolling at Stanford, Plaintiff asked multiple employees about the possibility of receiving constructive credit. (PAC, W 15, 36.) As a part 0f these discussions, Plaintiff alleges he specifically inquired about Whether he would be able t0 receive a letter of recommendation from Secretary Perry and described the “central role” Secretary Perry and Obtaining constructive credit played in his choice to attend Stanford. (Id. at 1W 16, 18.) Plaintiff additionally allegeé after enrolling at Stanford, he continued t0 inquire With other members 0f the faculty if he would be able to receive constructive credit and receive a letter ofrecommendation. (Id. at fl 17.) The staffreplied that they believed so because Secretary Perry “is the sole person t0 consider Whether t0 support a request for constructive credit.” (Ibid) The co-director 0f CISAC even allegedly advised Plaintiff on how t0 obtain Secretary Perry’s support. (Id. at 1] 17.) After these conversations; a meeting was arranged between Plaintiff and Secretary Perry so that he could inquire about receiving constructive credit. (Ibid) After 9 ORDER RE: DEMURRER \OOOQO‘xUIuDUJNy-n NNNNNNNNNHk-Ar-AHr-Ar-Ip-IHHp-x OOQONUl-PUJNP-‘OKOOOQOUI-DUJNHO Plaintiff s discussions with Secretary Perry and other faculty, Plaintiff relied on the promise to provide a letter 0f recommendation by enrolling in certain courses and perfOrming do ctoral research that he would not have otherWise undertaken. (Id. at 1m 23-24, 27.) Basad on the above, it is reasonably foreseeable that Plaintiff would rely on the numerous representations from staff members and other faculty that Secretary Perry would provide him ‘With a letter 0f recommendation. Turning to whether Plaintiff may ialead both a claim for breach of contract and promissory estoppel, a claim for promissory estoppel is distinct from a claim so-unding in contractubecause the element of detrimental reliance is regarded as a substitute for consideration. (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Ca1.App.4th 230, 242.) Thus, “Where the promisee’s reliance was bargained for, the law of consideration applies; and it is only Where the reliance was unbargained for that there is room for application of the doctrine of promissory estoppel.” (Id. at pp. 243-44, citations omitted.) Therefore, Defendants’ general statement 0f law that a promise in. a claim for promissory estoppel may not be bargained for is correct. However, that is not the end of the inquiry. Plaintiff argues that at the pleading stage he may plead alternative counts, and thus is not precluded from asserting a promissory estoppel Claim in addition t0 a claim for breach 0f contract. This argument is well-taken. “[T]he modern practice allows that party to plead in the alternative and make inconsistent allegations.” (Mendoza v. Continental Sales C0. (2006) 140 Ca1.App.4th 1395, 1402; see also Crowley v. Karleman (1994) 8 Ca1.4th 666, 691 [stating pleading alternative factual 0r legal theories is appropriate “When the pleading is in doubt as t0 Which theory most accurately reflects the events and can be established by the evidence”].) Courts have specifically allowed a plaintiff to plead both promissory estoppel and breach 0f c'ontract based 0n the same facts, even though the causes 0f action have conflicting elements. (Fleet v. Bank ofAmerz’ca NA. (2014) 229 Ca1.App.4th 1403, 1413.) Therefore, Plaintiff could allege “facts that could support a cause of action for promissory estoppel . . . in the event that [he] cannot establish a cause of action for breach of contract.” (Ibid) 10 ORDER RE: DEMURRER OOOQQML 10 11 12 13 14 15 16 17 18 19 20 21 22' 23 24 25 26 27 28 In light of the above, the fact that Plaintiff also alléges a breach of contract is not a basis for sustaining the demurrer. 3. Injury Defendants argue Plaintiff fails to adequately plead the element 0f injury because the military has not yet determined Whether he Will obtain constructive credit. The party asserting the estoppel must plead he or she was injured by reliance on the promise. (US Ecology, Inc. v. State, supra, 129 Ca1.App.4th at p. 901.) As discussed moré thoroughly above, Plaintiff’s alleged injury is that he spent three years taking unnecessary coursework and sacrificed growing his successful company While he was enrolled at Stanford. (PAC, W 7, 25, 27, 28.) Plaintiff specifically alleges that Without Secretary Perry’s promise, he would not have taken these security-based classes and would have left Stanford. Therefore, Plaintiff adequately pleads the element of injury. 4. Statute 0f Frauds Defendants advance the same argument here With respect t0 the statute 0f frauds as they did relative to the first cause 0f action. Defendants assert the claim for promissory estoppel is barred by the statute 0f frauds because Plaintiff alleges it took him three years t0 complete the necessary coursework. For the reasons previously stated, the claim is not barred by the statute 0f frauds because the allegations do not Clearly reflect that the necessary coursework could not have been completed in a less than a year. Therefore, the cause of action for promissory estoppel does not appear t0 be barred by the statute of frauds. 5. Conclusion Based 0n the foregoing, Defendants fail t0 present any persuasive argument as t0 Why the demurrer to the second cause of action should be sustained. Accordingly, the demurrer t0 the second cause 0f action 0n the ground 0f failure t0 state sufficient facts t0 constitute a cause of action is OVERRULED. 11 ORDER RE: DEMURRER OOONOm-DUJNr-x NNNNNNNNNHHer-lr-np-AHHH OOQO‘xUI-b-UJNi-‘OKOOOQQUm-DUJNHO C. Third Cause 0f Action - Negligent Misrepresentation Defendants argue Plaintiff fails t0 plead a misrepresentation 0f prior 0r existing fact, the element of injury, and Secretary Perry’s authority t0 speak for Stanford. 1. Misrepres entation Defendants assert Plaintiff fails t0 plead the element of misrepresentation because the alleged promise was a representation regarding future events 0r actions. One element of a claim for negligent misrepresentation is “the misrepresentation of a past 0r existing material fact[.]” (Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158 Ca1.App.4th 226, 243.) A false promise to perform in the future cannot support a claim for negligent misrepresentation. (Tarmann v. State Farm Mut. Ins. C0. (1991) 2 Ca1.App.4th 153, 158- 1 59.) Defendants’ position that the promise concerns future events or actions is well-taken. Plaintiffs claim is predicated 0n Defendants’ promise t0 provide a letter 0f recommendation to help him obtain constructive credit for courses taken at Stanford. Plaintiff s arguments in opposition are unavailing. Plaintiff simply asserts he pleads Defendants made representations 0f fact because Stanford said it “would support his military career” and never “expressed. . . . concern that Secretary Perry would not consider supporting his request.” (Opp, p. 13: lis. 8-10, emphasis added.) These statements do not qualify as representations 0f fact. Rather, the statement that‘Stanford would support Plaintiff’s military career is more akin t0 a statement that someone “would pay for . . . repairs” in the future, which is not a representation 0f present fact. (Tarmann v. State Farm Mut. Ins. Ca, supra, 2 Ca1.App.4th at p. 158, emphasis in original.) While Plaintiff provides a litany 0f law illustrating exceptions to the requirement of a representation 0f maférial fact, he does not advance any arguments showing how any such examples relate to the present circumstances. Accordingly, Plaintiff fails to plead the element of misrepresentation and the demurrer 1's thus sustainable. 12 ORDER RE: DEMURRER \OOOQQU‘I-b 1o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Injury Defendants once again argue Plaintiff fails t0 allege he was injured as a result of their actions. An element of a claim for negligent misrepresentation is that the plaintiff suffered resulting damages, i.e. injury. (Hot Rods, LLC v. Northrop Grumman Systems Corporation (2015) 242 Ca1.App.4th 1166, 1185.) As discussed with respect t0 the first and second causes of action, Plaintiff adequately alleges he was injured due t0 Defendants’ répresentations that if he took extra security-based coursework, he would receive a letter of recommendation for constructive credit. As a result 0f this representation, Plaintiff allegedly invested more time in school t0 the detn'ment of his independent business. Accordingly, the demurrer is not sustainable on the basis he fails t0 plead the element 0f injury. 3. Authority Defendants assert Plaintiff fails t0 plead Secretary Perry had authority to make promises 0n Stanford’s behalf. Defendants advance the same exact argument With respect'to the third cause of action as t0 the first cause 0f action._ The Cour“: is unaware 0f any legal authority supporting Defendants’ contention that Plaintiff must allege facts establishing Secretary Perry’s ostensible authority to make promises on Stanford’s behalf t0 support a negligent misrepresentation claim. Defendants only cite to cases concerning the heightened particularity requirement in fraud Claims, which requires a I plaintiff to plead facts showing an individual’s authority t0 speak 0n behalf 0f a corporation. (West v. JPMorgan Chase Bank, NA. (2013) 214 Ca1.App.4th 780, 793.) The purpose 0f the heightened pleading standard is “t0 give the defendant notice 0f definite charges Which can be intelligently met, and to permit the court to determine whether, 0n the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 240, citations and quotations omitted.) ' Defendants essentially argue authority must be pleaded in order t0 establish liability for a negligent misrepresentation claim, similar to the requirement to plead an agent’s authority to enter into a contract 0n a principal’s behalf. The argument is misguided as the requirement t0 13 ORDER RE: DEMURRER \DOOQQUI-bww 10 11 12 13 14 15 16 17 18 19 20 '21 22 23 24 25 26, 27 28 plead authority in fraud cases exists to give nofice t0 defendants, Whereas here, Defendants address the issue of authority in the context of legally binding Stanford t0 Secretary Perry’s statements. Therefore, Defendants fail to substantiate their position that no cause of action has been stated due to the absence 0f allegations of authority. Even assuming Defendants’ argument is correct, for the reasons stated above, Plaintiff sufficiently alleges Secretary Perry’s authority t0 enter into contracts 0n behalf of Stanford. Plaintiff alleges ample facts suggesting Stanford held Secretary Perry out as one who could provide a letter 0f recommendation. Notably, Secretary Perry is allegedly the only individual Who approves requests for constructive credit. (FAC, fl 17.) Secretary Perry’s ostensible authority is additionally strengthened by his title as Director 0f CISAC and director 0f the War College Fellows program at Stanford, which allows students at the War College t0 audit classes at Stanford for constructive credit. (Id. at fl 16.) Therefore, Plaintiff pleads facts suggesting Secretary P6113! had ostensible authority to act on Stanford’s behalf With respect t0 writing recommendations for constructive credit. 4. Conclusion For the reasons stated above, Defendants persuasively argue Plaintiff fails t0 plead the element of misrepresentation. Accordingly, the demurrer to the third cause 0f action on the ground of failure t0 State facts sufficient t0 constitute a cause of action is SUSTAINED With 10 days’ leave to amend. #92047 WM /Z% Mauree A. Folan Judge f the Superior Court 14 ORDER RE: DEMURRER EXHIBIT C 10 11 12 13 14 15 17 18 1,9 21 22 23 24 25 26 27 28 PILLSBURY WIN'I‘HROP SHAW PI”.1"'I‘M/\N LLP ANDREW D. {JAN‘PPIERIE 191479 ‘= g, gm WILLIAM T. PALIVIER312923 ' ‘ ‘- 7 ‘ f Four Embarcadero Center, 22nd Floor San Francispo,CA 94111~5998 gm? Egg! wq gm g): y Telephone: 415.983.1000 ‘“ Facsimile: 41 5 .983‘ 1 200 Attorneys for Defendants iI‘HE BOARD 0F TRUSTEES 0F THE ' ”ii" LELAND STANFORD JUNIOR UNIVERSITY (sued as Leland Stanford Junior Universiw) and WILLIAM J. PERRY SUPERICR COURT 0.1"“ "I‘I-IE S'I‘ATE OF CALIFORNIA COUNTY OF SANTA CLARA MICHAEL HANNEKEN, Case N0. 16«CV-300285 Plaintiff, DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT VS. . LELAND S'I‘ANIF‘ORD JUNIOR v Dept; 8 UNIVERSITY, WILLIAM J. PERRY, DOES Judge: Hon Maureen A. Folan 1 «5 O, Complaint IIS4‘iledz September 21, 20 '16 Defr‘endants. 'I‘rial Date: None Set ANSWER TO FIRST AMI‘IENDBD COMPLAINT mhww \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants The Board of Trustees of The Leland Stanford Junior University (sued as Leland Stanford Junior University) and William J. Perry (collectively, “Defendants”) answer the unverified First Amended Complaint (the “Complaint”) filed herein by plaintiff Michael Hanneken (“Plaintiff”) as follows: GENERAL DENIAL Pursuant to sections 43 1 .30(b)(1) and 43 1 .30(d) of the Code of Civil Procedure, Defendants generally deny each and every allegation of the Complaint and specifically deny that Plaintiff sustained any injury in fact or that Plaintiff was damaged in any amount or at all by Virtue of any alleged act 0r omission by Defendants. NEW MATTERS CONSTITUTING DEFENSES Pursuant t0 Code of Civil Procedure section 43 1.30(b)(2), Defendants further allege the following new matters constituting defenses t0 the Complaint: FIRST DEFENSE I (Failure T0 State Claim) The Complaint and each purported cause of action alleged therein do not state facts sufficient to constitute a cause of action against Defendants. SECOND DEFENSE (Lack of Consideration) The agreement and/or promise alleged in the Complaint is unenforceable against Defendants due t0 the lack and/or inadequacy of consideration provided by Plaintiff and/or Defendants. -2- ANSWER TO FIRST AMENDED COMPLAINT \OOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRD DEFENSE (Statute of Frauds) Each purported cause of action alleged in the Complaint is barred by the statute 0f frauds, Civil Code section 1624, as the agreement and/or promise alleged in the Complaint was not in writing and could not be performed within a year of its making. FOURTH DEFENSE (Estoppel) Defendants are informed and believe and on that basis allege that at all times relevant to the matters alleged in the Complaint, Plaintiff was fully informed 0f the alleged actions or omissions of Defendants he now asserts give rise to the rights alleged in the Complaint, yet through his acts and omissions has acted in a manner inconsistent with the assertion of those rights. Specifically, and without limitation, Defendants are informed and believe that Plaintiff continued to engage in activity that Plaintiff alleges constituted detrimental reliance after learning of Defendants’ alleged failure to perform the agreement and/or promise alleged in the Complaint, including but not limited t0 Plaintiff not dropping out of Stanford, Plaintiff continuing to take “security-based” courses and conduct “security-based research,” Plaintiff electing not to pursue alleged business opportunities, and Plaintiff delaying until in or after July 2016 before beginning the process of submitting a request for constructive credit to the military. Plaintiff accordingly is estopped from obtaining any relief based on the causes of action alleged in the Complaint. FIFTH DEFENSE (Waiver) Defendants are informed and believe and 0n that basis allege that at all times relevant to the matters alleged in the Complaint, Plaintiff was fully informed of the alleged actions or omissions of Defendants he now asserts give rise to the rights alleged in the Complaint, yet through his acts and omissions has acted in a manner inconsistent with the assertion of those rights. Specifically; and without limitation, Defendants are informed and believe that Plaintiff -3- ANSWER TO FIRST AMENDED COMPLAINT KOOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 continued to engage in activity that Plaintiff alleges constituted detrimental reliance after learning of Defendants’ alleged failure to perform the agreement and/or promise alleged in the Complaint, including but not limited to Plaintiff not dropping out of Stanford, Plaintiff continuing to take “security-based” courses and conduct “security-based research,” Plaintiff electing not to pursue alleged business opportunities, and Plaintiff delaying until in 0r after July 2016 before beginning the process of submitting a request for constructive credit t0 the military. Plaintiff accordingly waived any right t0 obtain any relief based on the causes of action alleged in the Complaint. SIXTH DEFENSE (Laches) Plaintiffs’ action on the Complaint is barred, in whole or in part, because each and every purported cause 0f action alleged therein is barred by the equitable doctrine 0f laches. Specifically, and without limitation Defendants are informed and believe that Plaintiff delayed taking remedial action, and instead continued to engage in activity that Plaintiff alleges constituted detrimental reliance after learning of Defendants’ alleged failure to perform the agreement and/or promise alleged in the Complaint, including but not limited t0 Plaintiff not dropping out of Stanford, Plaintiff continuing t0 take “security-based” courses and conduct “security-based research,” Plaintiff electing not t0 pursue alleged business opportunities, and Plaintiff delaying until in 0r after July 2016 before beginning the process 0f submitting a request for constructive credit to the military. SEVENTH DEFENSE (Statute of Limitations) Plaintiff’s action 0n the Complaint is barred, in whole 0r in part, because the claims for breach 0f oral contract and for promissory estoppel are subj ect t0 and barred by the applicable statutes 0f limitations, including the two-year limitations period prescribed in section 339(1) of the Code 0f Civil Procedure for actions founded “upon a contract, obligation, 0r liability that is not founded upon an instrument 0f writing.” -4- ANSWER TO FIRST AMENDED COMPLAINT KOOOQON 10 11 12 13 14 15 16 17 18 19 20 I 21 22 23 24 25 26 27 28 EIGHTH DEFENSE (Prematurity) Insofar as Plaintiff is seeking to recover damages arising out of his allegedly not receiving “constructive credit” as that phrase is used in the Complaint, Defendants are informed and believe that Plaintiff’s application t0 the military t0 receive “constructive credit” is pending, has not been denied, and may be granted. This action accordingly is premature, and should be abated. NINTH DEFENSE (Failure To Mitigate Damages) Defendants are informed and believe and on that basis allege that by the exercise of ‘ reasonable effort, Plaintiff could have mitigated the amount of damages, if any, that he suffered, but that Plaintiff failed and refused, and continues to fail and refuse, t0 exercise a reasonable effort to mitigate said damages, if any there were. Specifically, Defendants are informed and believe that Plaintiff continued to engage in. activity that Plaintiff alleges constituted detrimental reliance after learning 0f Defendants’ alleged failure to perform the agreement and/or promise alleged in the Complaint, including but not limited to Plaintiff not dropping out of Stanford, Plaintiff continuing to take “security-based” courses and conduct “security-based research,” and Plaintiff electing not to pursue alleged business opportunities. Further, Defendants are informed and believe that Plaintiff delayed until in or after July 2016 before submitting an application with the military for “constructive credit,” as that term is described in the Complaint. TENTH DEFENSE (Election of Remedies/Promissory Estoppel Claim Based on Bargained-For Reliance) The Complaint’s cause of action for promissory estoppel is barred and precluded under the doctrine of election of remedies and under the holding ofHealy v. Brewster (1963) 59 Ca1.2d 455 and subsequent cases, because the Complaint seeks mutually inconsistent remedies for the same facts through its breach of contract and promissory estoppel causes of action, and Plaintiff‘s alleged detrimental reliance was bargained for in return for Defendants’ alleged promise. -5- ANSWER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELEVENTH DEFENSE (Unclean Hands) By reason of the conduct 0f Plaintiff and Plaintiff s agents in relation t0 the matters alleged in the Complaint, Plaintiff was and is guilty of unclean hands, and therefore the requested relief may not be granted. Defendants are informed and believe that actions that give rise to Plaintiff’s unclean hands include, but are not limited to, Plaintiff acting in an unprofessional and threatening manner in his interactions and discussions with Stanford personnel regarding the matters alleged in the Complaint. TWELFTH DEFENSE (Civil Code Section 3390(1)) Insofar as the Complaint’s prayer for “an order enforcing defendants’ promises” represents a prayer for specific performance of the agreement and/or promise alleged in the Complaint, such a claim for specific performance is barred because the alleged agreement and/or promise is one for personal services, which cannot be specifically enforced as a matter 0f law under section 3390(1) 0f the Civil Code. THIRTEENTH DEFENSE (Superseding and Intervening Causes) Any and all injuries 0r damages allegedly sustained by Plaintiff were caused, in whole or in part, by the superseding and intervening acts and omissions of persons 0r entities for whose conduct Defendants are not responsible. Specifically, and without limitation, insofar as Plaintiff is seeking t0 recover damages arising out of his allegedly not receiving “constructive credit” as that phrase is used in the Complaint, the decision whether 0r not Plaintiff receives “constructive credit” is entirely within the discretion of the military, and not within the control of Defendants. /// /// -6- ANSWER TO FIRST AMENDED COMPLAINT 1 W h e r e f o r e, Defendants pray that judgment be entered in their favor and against 2 Plaintiff as follows: 3 (a) That Plaintiff take nothing by the Complaint and that the same be 4 dismissed with prejudice; 5 (b) That judgment on the Complaint be entered in favor of Defendants and 6 against Plaintiff; 7 (c) That Defendants recover their costs of suit herein incurred; and 8 (d) For such other and further relief as the Court may deem just and proper. 9 10 Dated: May 9, 2017 PILLSBURY W T R SHAW PITTMAN LLP V A‘ndfew D. Lanphere 12 Attorneys for Defendants 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- ANSWER TO FIRST AMENDED COMPLAINT OONON O\O 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Docket N0. 16CV300285 PROOF OF SERVICE BY MAIL I, Deirdre Campino, the undersigned, hereby declare as follows: 1. I am over the age of 18 years and am not a party t0 the within cause. I am employed by Pillsbury Winthrop Shaw Pittman LLP in the City of San Francisco, California. 2. My business address is Four Embarcadero Center, 22nd Floor, San Francisco, CA 941 1 1-5998. 3. My mailing address is P.O. BOX 2824, San Francisco, CA 94126-2824. 4. I am familiar with Pillsbury Winthrop Shaw Pittman LLP’s practice for collection and processing 0f correspondence for mailing With the United States Postal Service. In the ordinary course of business, correspondence placed in interoffice mail is deposited with the United States Postal Service With first class postage thereon fully prepaid on the same day it is placed for collection and mailing. 5. On May 9, 2017, at Four Embarcadero Center, 22nd Floor, San Francisco, CA 941 1 1-5998, I served a true copy 0f the attached document(s) titled exactly DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT by placing it/them in an addressed, sealed envelope clearly labeled t0 identify the person being served at the address Shown below, and placed in interoffice' mail for collection and deposit in the United States Postal Service on that date following ordinary business practices: [See Attached Service List] I declare Under penalty of perjury that the foregoing is true and correct. Executed this 9th day of May, 2017, at San Francisco, California. Deirdre Calfipino 4824-2299-1 422.v1 1‘0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Service List James McManis Tyler Atkinson James Giacchetti McManis Faulkner, APC _ 50 West San Fernando Street, 10”] Floor San Jose, CA 951 13 Tel: (408) 279-8700 4824-2299- I 422.v1