DemurrerCal. Super. - 6th Dist.December 13, 201810 ll 12 l3 l4 15 16 l7 18 19 20 21 22 23 24 25 SYED NAZIZ ALI PRO PER OCT ls gm 65 Washington St. Suite #225 Cf Santa Clara, CA 95050 sufigfiifi‘rgf-‘nnggggum Tel; 408-372-1 150 ?Q’ouuyyfigggficjgg 9F CA Email: Alex@vaerlaw101.Com J KEWH WIVES?Z SUPERIOR COURT 0F CALIFORNIA COUNTY 0F SANTA CLARA SYED NAZIM ALI, ) Case No.: 18cv339366 PLAINTIFF ) ) PLAINTIFF’S DEMURRER T0 ) DEFENDANT’S FIRST AMENDED vs. ) CROSS COMPLAINT FOR g CONTRACTUAL INDEMNITY VENTRUM, LLC, ) ) MEMORANDUM 0F POINT AND x DEFENDANT ) AUTHORITIES SUPPORTING THE ) PLAINTIFF DEMURRER ) HERING DATE: 3//7/2 O 7’9V VENTRUM, LLC TIME: 9:00AM CRoss-COMPLAINANT DEPT: 9 JUDGE HON. MARY E. ARAND VS. SYED NAZIM ALI CYBERSECURITY ASSOCIATES, INC CROSS-DEFENDANTS I. INTRODUCTION Plaintiff SYED NAZIM ALI and on behalf of Cybersecurity Associates, Inc as sole and only officer submits this Plaintiff’s Demurrer to the Defendant’s First Amended Cross Complaint 1 PLAINTIFF’S DEMURRER TO DBFENDANT’S FIRST AMENDED CROSS CLAIM 10 ll 12 13 l4 15 16 17 18 19 20 21 22 23 24 25 for Contract Indemnity of Defendant, VENTRUM, LLC. The Plaintiff has demurred t0 the first cause 0f action for the Defendant’s First Amended Cross Complaint. Plaintiff would respectfully ask the court to grant the Plaintiff Demurrer t0 the Defendant’ First Amended Cross Complaint. For the reasons set forth below, The Plaintiff‘s Demurrer should be granted. II. STATEMENT OF FACTS The Defendant Ventrum CEO/Director Rohita Joshi operates and run two IT Staffing and Recruiting Company, and acts as a Chief Executive Officer (CEO) in both companies. Ventrum LLC and Deligente Technologies, LLC, and Rohita Joshi, used entities t0 entice and market material fraud (false information) t0 Mr. Ali ( a highly qualified cybersecurity consultant and auditor) about offering a work for a 12 months’ work and 6 month plus work . (See Exhibit A). On and about April 28, 201 8, the Ventrum and its employee and Rohita Joshi, presented a known false material fraud fact to Mr. Ali presenting a six month plus contact work. (See Exhibit B). The plaintiff trusted in total detrimental reliance as professional and certified IT Auditor and believed in the material facts presented to Mr. Ali. On and about April 27, 20 1 7, The Defendant Ventrum, Rohita Joshi and its employee were well informed that Mr. Ali is looking a long-term work and has other opportunities including the SalesForce final Interview. Rohita Joshi (See Exhibit C). On April 28, 201 8, The Ventrum LLC, its CEO Rohita Joshi and its employees all presented a material fact in fraud and known fraud in professional negligence 0n Ventrum presented work contract showing six-month contract start date 5/01/201 7 and end date 11/3 0/2017, six months. (See Exhibit D). Mr. Ali in good faith and detrimental reliance 0n the false material presented, have trusted, agreed and executed the contract. Plaintiff Civil Discovery 0n Request for Production revealed that on an about April 28, 2 PLAINTIFF’S DEMURRER TO DEFENDANT’S FIRST AMENDED CROSS CLAIM 10 ll 12 13 l4 15 l6 l7 18 19 2O 21 22 23 24 25 201 7. The Ventrum LLC, and its CEO Rohita Joshi, has executed a written contract for Mr. Ali for start date 5/1/2017 and end date 8/1/2617, (3 months, nothing more) with the end-client. (See Exhibit E). The Defendant Ventrum, LLC and its CEO Rohita Joshi, presented material facts in intentional fiaud, professional negligence, and promissory estoppel which were well known to Ventrum LLC and its CEO, Rohita Joshi and all employee, but intentionally and recklessly not disclosed to Mr. Ali which has severely caused undue financial harm to MI. Ali by not taking other project where he would have made $ 1 92K yearly earning and be employed with long term engagement. Defendant has purposely concealed the material facts and has not released “true length of the contract” for their financial benefit otherwise Mr. Ali will not take the Ventrum, LLC short term (3 months) contract over other 12 months contract which were there other opportunities including SalesForce. Plaintiff filed suit against the Defendant regarding an employment contract which made on material fraud which known to Rohita Joshi, CEO of Ventrum. The employment contract offer were made to Mr. Ali as an individual person with the Defendant Ventrum. The Defendant was in a quest t0 fill a position with one 0f its vendors. In an elaborate attempt t0 lie and manipulate the facts, the Defendant enticed the Plaintiff t0 work for him in his individual capacity. The Defendant clearly knew that the Plaintiff was only interested in long term employment. The Plaintiff had other job opportunities that he had but turned them down due t0 the Defendants representation. (See Exhibit C, SalesForce for the final interview b/w 12-1PM) Defendant had acted and presented facts known Intentional fraud in Misrepresentation, Professional Negligence, and Promissory Estoppel about enticing the Plaintiff. The contract Was only for a 3-month contract which has been presented t0 last six month and renewable to additional 12 month. Plaintiffs Complaint states that on 0r about May 1, 2017, the Plaintiffwas hired as a 3 PLAINTIFF’S DEMURRER TO DEFENDANT’S FIRST AMENDED CROSS CLAIM 10 ll 12 l3 l4 15 l6 17 18 19 20 21 22 23 24 25 Senior Security Consultant to provide Cybersecurity Professional Consulting Services to Ventrum end-client Synaptic, Inc. On and about April 26, 201, Rohita Joshj, Ventrum LLC CEO and President had contacted Ali over the phone and assured him that the job would be for six months and renewable to 12 months to entice and overcome about Mr. Ali not t0 accept a potential offer from Salesforce. Ali had made it known to the Defendant that he has other opportunities such as Sales Force. The Defendant reassured him as to the time pen‘od for the job. Defendant acted recklessly t0 present material facts before Mr. Ali (as Individual Person) before any written contract between Mr. Ali entity Cybersecurity Associates, Inc) and Ventrum, LLC could be formed. The Plaintiff in total false reliance, deceptive Ventrum Email and Phone Solicitations the Defendant has a scheme to retain highly qualified skilled worker for purpose 0f servicing their end-client for them of intentional fraud, professional negligence. On 0r about April 28, 2017, the Plaintiff and Defendant entered into a wn'tten contract whereby Plaintiff was t0 start working at Synaptic, Inc. (See Exhibit D)- A copy 0f contract between entities which Mr. Ali has signed in good faith and reliance). The first day 0f employment with Ventrum was May 1, 20 1 7 for the Plaintiff. On 0r about May 25, 2017, the client disclosed t0 the Plaintiffthat the job was for three months. This information was clearly stated to Ventrum. The last day 0f employment for the Plaintiff was August 1, 2017. The Plaintiff filed a Complaint on December 13, 201 8. The Defendant filed their Demurrer on January 25, 201 9. Defendant has lost on Demurrer and has left no option t0 further harass, abuse of financial power and abuse 0f legal power against the Plaintiff by filing a Cross- Complaint 0n a “Contract” which was made 0n “material fraud” and which must be treated as “null 0r voided” due to reckless and intentional fraud presented by Ventrum CEO, Rohita Joshi, purposely with evil intention to harm the Plaintiff. Now, The Defendants filed a Counterclaim on May 28, 201 8. The Defendant files Motion 4 PLAINTIFF’S DEMURRER TO DEFENDANT’S FIRST AMENDED CROSS CLAIM 10 ll 12 l3 14 15 l6 l7 18 l9 20 21 22 23 24 25 for Leave t0 File an Amended Counter- Claim. The Plaintiff filedVan Opposition. The Defendant filed an the Defendant’s First Amended Cross Complaint for Contract Indemnity. The Plaintiff is presenting this Demurrer t0 the Defendant’s First Amended Cross Complaint for Contract Indemnity. III. LEGAL STANDARD Objection to a complaint via demurrer is sustainable if “[t]he pleading does not state facts sufficient t0 constitute a cause of action.” Code Civ. Proc. § 430.10(e). A demurrer can be made to an entire complaint 0r individual causes of action therein. (S 430.50 (a).) A cause of action is subject to demurrer for failure to state a claim if'the complaint discloses an affirmative defense on its face, and the plaintiff has not “pleaded around” that defense. See Gentry v. eBay, Ina, 99 Cal. 22 App. 4th 816, 824-25 (2002) “[A] trial court does not err in sustaining a demurrer without leave t0 amend where the complaint discloses on its face that the action is “Where wn'tten documents are the foundation of an action and are attached to the 4 complaint and incorporated therein by reference, they become a part 0f the complaint and may be considered on demurrer. " Qualcomm, Inc. v. Certain Underwriters at Lloyd’s, London, 161 Cal. 6 App. 4th 184, 191 (2008) (citation omitted) (internal quotation marks omitted). A&ditionally, “When a dispute arises over the meaning of contract language, the first question to be decided is whether the language is ‘reasonably susceptible’ to the interpretation urged by the party. If it is not, the case is over. ” S. Cal. Edison C0. v. Super. C1,, 37 Cal. App. 4th 839, 847-48 (1995). Under the doctrine 0ftruthful pleading, the courts ‘will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached ldocuments, or allegations contrary to facts that are judicially noticed.’ ‘False allegations 0f fact, inconsistent with annexed documentary exhibits or contrary t0 facts 5 PLAINTIFF’S DEMURRER TO DEFENDANT’S FIRST AMENDED CROSS CLAIM 10 11 12 13 l4 15 16 l7 18 l9 20 21 22 23 24 25 judicially noticed [citation], may be disregarded....’ Trinity Park; LP. v. City oszmnyvale, 193 Cal. App. 4th 1014, 1027 (201 1) IV. ARGUMENTS I. DEFENDANTS ARE NOT ENTITLED T0 CONTRACT INDEMINTY The Defendants are not entitled t0 contract Indemnity as alleged in this First Amended Cross Complaint for Contractual Indemnity. The Defendant is alleging their rights under their First Amended Cross Complaint that in Paragraph 16 which states; “Section 12 0f the Preferred Vendor Agreement (Exhibit A) requires that the Defendant Cybersecurity Associates, Inc. “defend, indemnify, and hold Ventrum LLC from claims or liabilities asserted against Ventrum and/or Ventrum’s client(s) by Vendor’s employees.” The first reason the court should grant the demurrer is that this is a cause 0f breach of contract based on fraudulent inducement. The Defendants were in such a big hurry to hire the Plaintiff to fulfill their requirement for the vendor. The Defendant intentionally and knowingly lied to the Plaintiffin order to get him to work for their end client. "The elements 0f fraud, which give rise t0 the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge 0f falsity (0r ‘scienter'); (c) intent t0 defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage." (5 Watkin, Summary of Cal. Law (9th ed. 1988) Torts, § 676, p. 778; see also Civ. Code, § 170. The Plaintiff has clearly laid out all the elements of Fraud and Deceit in his original complaint. The contract ihdemnificatibn does not apply in this case. The Plaintiff‘s Motion to Demurrer should be granted against the Defendant. An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff t0 enter into a contract. ( Chelz'm' v. Nieri (1948) 32 Cal.2d 480, 487 [ 196 P.2d 915] ["tort ofdeceit" adequately pled where plaintiff alleges "defendant intended t0 and did 6 PLAINTIFF’S DEMURRER TO DEFENDANTS FIRST AMENDED CROSS CLAIM 10 ll 12 13 l4 15 16 l7 18 19 20 21 22 23 24 25 induce plaintiff to employ him by making promises . . . he did not intend t0 (since he knew he could not) perform" (fn. omitted)]; Kuchta v. Allied Builders Corp. (1971) 21 Cal.App.3d 541, 549 [ 98 CaLRptr. 588], citing Horn v. Guaranty Chevrolet Motors (1969) 270 Ca1.App.2d 477, 484 [75 CaI.Rptr. 871]; Squires Dept. Store, Inc. v. Dudum (1953) 115 Cal.App.2d 320, 323 [‘252 P.2d 418].) The Defendants have engaged in fraud, there are not entitled t0 rely upon indemnification in order t0 avoid liability. The Plaintiff’s Dcmurrer on Defendant cause of action 0n contract indemnification should be granted. The court in Lazar v. Superior court stated that a misrepresentation not aimed at effecting termination of employment, but instead designed t0 induce the employee t0 alter detrimentally his 0r her position in some other respect, might form a basis for a valid fraud claim even in the context 0f a wrongful termination." Lazar v. Superior Court, 12 Ca1.4th 631 (Cal. 1996. The court in Lazar held that at claim for fraudulent inducement t0 accept employment was actionable where "[employer's] misrepresentations were made before the employment relationship was formed, when [employer] had n0 coercive power over [prospective employee] and [prospective employee] was free to decline the offered position" In Lazarus, the court held, as t0 his fraud claim Lazar may properly seek damages for the costs of uprooting his family, expenses incurred in relocation, and the loss of security and income associated with his former employment in New York. Like Lazarus, the Plaintiff had t0 deal with a lot 0f expenses because ofthe deception that was inflicted by the Defendant. The court should grant the Plaintiff’s demurrer 0n the Defendant First Amended Counter Claim. Tellingly, the Defendant should be precluded from trying to use the indemnification clause of the contract because of their fraudulent act. In a similar case where the contract indemnity was precluded was in , Ranchwood Communities Limited Partnership v. Jim Beat Construction C0. (1996) 49 Cal.App .4th 1397. There the contractual indemnity claim was held to be precluded because it arose out 0f an illegal contract. The Defendant should be precluded from the use of the indemnity clause when they are in fact responsible for the fraudulent acts that were inflicted upon the Plaintiff. Thus, the Demurrer by the Plaintiff 7 PLAINTIFF’S DEMURRER TO DEFENDANT’S FIRST AMENDED CROSS CLAIM 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 should be granted. II. DEFENDANT’S COUNTER CLAIM 0N CONTRACT FAILS BECAUSE IT IMPROPERTLY RELIES 0N UNREASONABLE INTERPREATION OF THE CONTRACT The Defendant Contract claims fails because it improperly relies on unreasonable interpretation of the contract. In pursuing a valid fraud action, a plaintiff advances the public interést in punishing intentional misrepresentations and in deterring such misrepresentations in the future. (Cf. Foley, supra, 47 CalA3d at p. 683 [recognizing tort law is designed t0 vindicate social policy].) Because of the extra measure of blameworthiness inhering in fraud, and because in fraud cases we are not concerned about the need for "predictability about the cost of contractual relationships" (ibid.) Th plaintiff‘s burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must "allege the names of the persons who made the allegedly fraudulent representations, their authority t0 speak, to whom they spoke, what they said 0r wrote, and when it was said 0r written." (Tarmann v. State Farm Mut. Auto. Ins. C0. (1991) 2 Cal.App.4th 153, 157 [2 Cal.Rptr.2d 861].) In this case, the Plaintiff’s complaint is clear as t0 the who, what when and where. The issue is the contract indemnification which is a moot issue because based 0n the facts of the case, it is not relevant. The court should grant the Plaintiff’s demurrer. For example, it has long been the rule that where a contract is secured by fraudulent representations, the injured party may elect t0 affirm the contract and sue for the fraud. (Campbell v. Birch (1942) 19 Ca1.2d 778, 791 [ 122 P.2d 902]; see generally, 5 Watkin, Summary 0f Cal. Law, supra, Torts, § 726, pp. 825-826.) If a “contract is not reasonably susceptible to the meaning alleged in the complaint, it is proper to sustain a demurrer without leave t0 amend.” See , 8 PLAINTIFF’S DEMURRER TO DEFENDANT’S FIRST AMENDED CROSS CLAIM 10 ll 12 l3 l4 15 l6 l7 18 19 20 21 22 23 24 25 George v. Auto. Club OfS. Cal, Case 8 N0. B229287, 2011 WL 6144927, at (Cal. App. Dec. 12, 201 1). There is no doubt the Defendant wants t0 claim indemnification. In fact, they are not entitled t0 indemnification according to the law of California. This Court should sustain the Plaintiff ‘s demurrer as t0 Defendant cause of action on contract indemnification. III. THE PLAINTIFF ‘S DEMURRER SHOULD BE GRANTED In determining whether or not to sustain a demurrer for failure t0 state facts sufficient t0 constitute a cause 0f action, all 0f the material facts must be regarded as true. Serrano v. Priest, 5 Cal.3d 584, 591 (1971); Hilltop Properties, Inc. v. State, 233 Cal.App.2d 249, 353 10 (1965). “All that is necessary against a general demurrer is that, upon a consideration 0f all the facts stated, it appears that the plaintiffs entitled t0 any relief at the hands of the court against the defendant, notwithstanding the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause 0f action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.” Serrano, 5 Cal.3d at 591. California courts must construe complaints “liberally with a view t0 substantial justice between the parties.” Cal. Code CiV. Proc. § 452. The Defendant is alleging that the Plaintiff did not sign in his individual capacity. In fact, the Plaintiff did sign in his individual capacity. Regardless 0fwhat capacity the Plaintiff signed in, the fraud has been committed. They are not entitled t0 hide behind the contract indemnification. It is the Plaintiff’s position that the Defendant’s Contractual Indemnity Cause 0f Action must fail because: (1) the Complaint fails to state that there has been any third-party claim against Plaintiff, (2) the Complaint fails t0 state that Plaintiff and Defendant are jointly liable t0 any third party, (3) there can be no indemnity if there has been no cost calculated 0r money paid by the Defendant. Defendant’s arguments are either inapposite or misleading. Contractual indemnity is defined simply as “a contract by which one engages to save another from a legal consequence of the 9 PLAINTIFF’S DEMURRER TO DEFENDANT’S FIRST AMENDED CROSS CLAIM 10 ll 12 13 l4 15 16 17 18 19 20 21 22 23 24 25 conduct of one of the parties, or of some other person.” Cal. Civ. Code § 26 2772. Civil Code § 2778. The Defendant does not specify that in all cases, the indemnitee must first pay 0n a third- party claim before seeking indemnification. Rather, Civil Code § 2778 28 states, and Defendant conveniently fails to reveal, that “[I]n the interpretation of a contract 0f indemnity, the following rules are t0 be applied, unless a contrary intention appears. Accordingly, here is no reason to believe, based upon the allegations in the Complaint taken as true, that the indemnity provision does not apply in this case. The Defendant has properly alleged its contractual indemnity claim and the court must deny this cause 0f action by granting the Plaintiff s demurrer. It is well-established rule of law and legal theory that “A misrepresentation 0f fact that induces assent provides a basis for avoidance 0f a contract. A misrepresentation is defined as a statement that is not in accord with the facts. Affirmative conduct that is "intended 0r known likely t0 prevent another fiom learning a fact is equivalent t0 an assertion that the fact does not exist" and constitutes a misrepresentation” Here the Defendant Ventrum LLC and its CEO, Rohita Joshi, presented and induced a known material fraud t0 Mr. Ali (Exhibit D, it is a six month contract) which were known to her not true (Exhibit E, it is a 3 month work contact). Therefore, should not permitted the Defendant a cross- complaint basis t0 refer a contract ‘Indemnification” which is “Null 0r Voided” and presented in total and reckless material fraud. It is welI-established law in Criminal Material. fraud cases that criminal elements that includes: 1) Misrepresentation 0f a material fact 2) Knowledge on the part of the accused that they were misrepresenting the fact 3) The misrepresentation was made purposefully, with the intent 0f fooling the victim 4) The victim believed the misrepresentation and relied upon it and 5) The victim suffered damages as a result 0f the misrepresentation. 10 PLAINTIFF’S DEMURRER TO DEFENDANT’S FIRST AMENDED CROSS CLAIM 10 ll 12 l3 l4 15 l6 17 18 19 20 21 22 23 24 25 _ Here Rohita Joshi, CEO of the Ventrum, LLC has committed a material fraud which is subj ect t0 criminal prosecution which has caused undue financial earning losses t0 Mr. Ali to lose other work opportunities where he would have made $1 92K year and after year should the Sale Force and other opportunities secured which were missed due t0 the Ventrum LLC and its CEO, Rohita Joshi, material fraud. IV. CONCLUSION The Defendant should be allowed t0 continue and take advantage of the Plaintiff. The Plaintiff has endured a great deal in reference to this fraudulent contractual relationship. The Defendants should not be allowed indemnification as a way t0 avoid liability. The equitable approach in this case is to sustain Plaintiffs demurrer without leave to amend for the Defendant. g SYED NAZIM ALI, PRO SE Date: October 14, 2019 11 PLAINTIFF’S DEMURRER T0 DEFENDANT’S FIRST AMENDED CROSS CLAIM