oe 0 N N U t A W N NN N N N N N N N N m m em em pm p m em e d R N RAR W N S N N N T R W DN = O William R. Cumming (State Bar No. 200966) cumming @cummingandassociateslaw.com ELECTRONICALLY FILED CUMMING & ASSOCIATES, APLC Superior Court of California, 3080 Bristol Street, Sixth Floor, Suite 630 County of Orange Costa Mesa, CA 92626 0BM0201T at 10:35:00 A Telephone: (714) 432-6494 Clerk of the Superior Court Facsimile: (714) 202-3162 By Danielle Jurado, Deputy Clerk Attorneys for Defendants Gold Coast X-Treme Soccer Club dba California Soccer Academy, a California Non-Profit Corporation and Richard Bauer, an individual SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE SOUTHERN CALIFORNIA IMPACT y Case No. 30-2016-00850511-CU-BC-CJC SOCCER CLUB, INC., dba FC IMPACT, A CALIFORNIA NOM-PROFIT ) Assigned For All Purposes To: CORPORATION, ) Hon. Walter Schwarm Dept.: C19 Plaintiff, ) ) DEFENDANTS GOLD COAST X-TREME V. ) SOCCER CLUB DBA CALIFORNIA SOCCER ) ACADEMY AND RICHARD BAUER’S GOLD COAST X-TREME SOCCER CLUB, ) NOTICE OF DEMURRER AND DEMURRER dba CALIFORNIA SOCCER ACADEMY, A) TO PLAINTIFEF’S SECOND AMENDED CALIFORNIA MOM-PROFIT ) COMPLAINT; MEMORANDUM OF POINTS CORPORATION, AND RICHARD BAUER, ~) AND AUTHORITIES IN SUPPORT; AN INDIVIDUAL, A ND DOES 1-100, ) DECLARATION OF KATHRYN T. INCLUSIVE, ANDERSON, ESQ. PURSUANT TO C.C.P. § ) 430.41 Defendants. ) RESERVATION NO. 72637749 ) Date: September 19, 2017 ) Time: 1:30 p.m. ) Dept.: C19 Action Filed: May 5, 2016 ) Trial Date: None 1 DEFENDANTS’ DEMURRER TO SECOND AMENDED COMPLAINT oe 0 N N U t A W N NN N N N N N N N N m m em em pm p m em e d R N RAR W N S N N N T R W DN = O TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on September 19, 2017 at 1:30 p.m., or as soon thereafter as the matter may be heard in the above-entitled court located at 700 Civic Center Drive West, Santa Ana, California 92701, Defendants Gold Coast X-Treme Soccer Club dba California Soccer Academy (“CSA”) and Richard Bauer (“Bauer,” collectively with CSA, “Defendants”) will and hereby do demur to Plaintiff Southern California Impact Soccer Club, Inc., dba FC Impact’s (“FC Impact”) Second Amended Complaint on the following grounds: Demurrer to Fifth Cause of Action 1. The Fifth Cause of Action for Violations of California Business and Professions Code, § 17200 does not state facts sufficient to constitute a cause of action against Defendants. (Cal. Code Civ. Proc. § 430.10(e).) Demurrer to Sixth Cause of Action 2. The Sixth Cause of Action for Fraud does not state facts sufficient to constitute a cause of action against Defendants. (Cal. Code Civ. Proc. § 430.10(e).) Demurrer to Seventh Cause of Action 3: The Seventh Cause of Action for Conversion does not state facts sufficient to constitute a cause of action against Defendants. (Cal. Code Civ. Proc. § 430.10(e).) 4. The Seventh Cause of Action for Conversion fails for uncertainty. (Cal. Code Civ. Proc. § 430.10(f).) This Demurrer is based upon this Notice and Demurrer; the attached Memorandum of Points and Authorities and Declaration of Kathryn T. Anderson; the records, pleadings and files herein; and any and all such evidence and arguments as this court may deem just and proper. Dated: August 10, 2017 CUMMING & ASSOCIATES, APLC By: /s/ William R. Cum ing William R. Cumming Attorneys for Defendants Gold Coast X-Treme Soccer Club dba California Soccer Academy and Richard Bauer 2 DEFENDANTS’ DEMURRER TO SECOND AMENDED COMPLAINT oe 0 N N U t A W N NN N N N N N N N N m m em em pm p m em e d R N RAR W N S N N N T R W DN = O MEMORANDUM OF POINTS AND AUTHORITIES 1. INTRODUCTION This action involves a dispute arising out of a failed merger between two soccer clubs, Southern California Impact Soccer Club, Inc., dba FC Impact (“FC Impact”) and Gold Coast X- Treme Soccer Club, dba California Soccer Academy (“CSA”). FC Impact alleges defendants CSA and its President, Richard Bauer (“Bauer,” collectively with CSA, “Defendants”) promised to effectuate CSA’s merger with FC Impact, but failed to do so consistent with the parties’ written agreements. Like FC Impact’s Amended Complaint, FC Impact’s Second Amended Complaint improperly attempts to boot strap tort-based claims onto its standard breach of contract claims. Accordingly, each of FC Impact claims for Violations of California Business & Professions Code § 17200, Fraud, and Conversion fails to state facts sufficient to state a claim against Defendants. In addition, FC Impact’s claim for conversion fails to make clear which defendant allegedly converted FC Impact’s funds and therefore is fatally uncertain. For the reasons set forth in detail below, Defendants’ Demurrer to each of FC Impact’s Fifth, Sixth, and Seventh Causes of Action in FC Impact’s Second Amended Complaint should be sustained. 2. PROCEDURAL BACKGROUND On May 5, 2016, FC Impact filed a complaint against CSA and Richard Bauer for (1) Breach of Contract - CSA (2) Breach of Contract - Bauer (3) Breach of Fiduciary Duty (4) Breach of Implied Covenant of Good Faith and Fair Dealing (5) Violations of California Business & Professions Code § 17200 (6) Fraud/Intentional Misrepresentation (7) Conversion (8) Specific Performance and (9) Tortious Interference of Contract (the “Complaint”). Counsel for Defendants thereafter met and conferred with FC Impact’s counsel regarding the deficiencies in FC Impact’s pleading, including FC Impact’s failure to attach the alleged agreements to the Complaint. On March 9, 2017, FC Impact filed a Notice of Errata and Amendment to Complaint, amending its Complaint to incorporate copies of the alleged contracts as exhibits (the “Amended Complaint”). 1 DEFENDANTS’ DEMURRER TO SECOND AMENDED COMPLAINT oe 0 N N U t A W N NN N N N N N N N N m m em em pm p m em e d R N RAR W N S N N N T R W DN = O On April 10, 2017, Defendants filed a demurrer to FC Impact’s Amended Complaint, on the grounds its claims for violations of California Business & Professions Code § 17200, fraud/intentional misrepresentation, conversion, and tortious interference of contract, failed to state sufficient facts to state claims against Defendants and were fatally uncertain. FC Impact thereafter agreed to amend its complaint a second time, and on July 12, 2017, FC Impact filed the operative Second Amended Complaint for (1) Breach of Contract - CSA (2) Breach of Contract - Bauer (3) Breach of Fiduciary Duty (4) Breach of Implied Covenant of Good Faith and Fair Dealing (5) Violations of California Business & Professions Code § 17200 (6) Fraud (7) Conversion and (8) Specific Performance (the “SAC”). Like the Amended Complaint, the Second Amended Complaint alleges that FC Impact entered into a written merger agreement with CSA, pursuant to which CSA would be integrated into FC Impact. (SAC, 9-10.) FC Impact further alleges that it entered into an employment contract with Bauer pursuant to which FC Impact employed Bauer to assist in FC Impact’s acquisition of CSA. (SAC, {q 14-15.) FC Impact alleges that CSA and Bauer breached the agreements with FC Impact and as a result, the merger was not completed. (SAC, |{44, 67.) Like FC Impact’s Amended Complaint, FC Impact’s Second Amended Complaint alleges that CSA and Bauer’s failures to complete the merger constitute violations of California Business & Professions Code § 17200, fraud, and conversion. As set forth below, FC Impact’s tort claims still fail to allege sufficient facts to state claims against CSA and Bauer, and are without merit. In addition, FC Impact’s conversion claim remains fatally uncertain. 3. STANDARD OF REVIEW WHEN RULING ON DEMURRER A demurrer tests the sufficiency of a pleading by raising questions of law. (Buford v. State (1980) 104 Cal.App.3d 811, 818.) Code of Civil Procedure section 430.10 provides that a party may file a demurrer to the complaint where the pleading “does not state facts sufficient to constitute a cause of action,” or is uncertain, ambiguous and unintelligible. (Cal. Code Civ. Proc., § 430.10(e), ®.) In ruling on a demurrer, the court must assume the truth of all properly pled material allegations of fact. (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 635.) However, while a demurrer 2 DEFENDANTS’ DEMURRER TO SECOND AMENDED COMPLAINT oe 0 N N U t A W N NN N N N N N N N N m m em em pm p m em e d R N RAR W N S N N N T R W DN = O admits all material facts that were properly pled, a demurrer does not assume the truth of contentions, deductions, or conclusions of facts or law. (Leyva v. Nielsen (2000) 83 Cal.App.4th 1061, 1063; Freeman v. San Diego Ass'n of Realtors (1999) 77 Cal.App.4th 171, 189.) When a demurrer is sustained, the plaintiff bears the burden of showing how the defect can be cured by amendment. (Blatty v. N'Y. Times Co. (1986) 42 Cal.3d 1033, 1040-41; Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Where the plaintiff fails to do so, or if it is clear that the defect cannot be cured, the demurrer is properly sustained without leave to amend. (Hendy v. Losse (1991) 54 Cal.3d 723, 742-43; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 4. ARGUMENT A. FC Impact’s Fifth Cause of Action for Violations of California Business & Professions Code section 17200 Fails to State a Claim FC Impact’s Fifth Cause of Action for Violations of California Business & Professions Code section 17200 fails to state a claim because FC Impact fails to allege any unlawful, unfair, or fraudulent conduct within the meaning of the statute. To state a valid claim for violations of California Business & Professions Code sections 17200 ef seq., referred to as the Unfair Competition Law (the “UCL”), a plaintiff must allege that the defendant engaged in an “unlawful, unfair or fraudulent business act or practice.” (Cal. Bus. & Prof. Code § 17200.) “[P]Jurely conclusionary” allegations of UCL violations are “insufficient to withstand demurrer.” (People v. McKale (1979) 25 Cal.3d 626, 635.) In its UCL claim, FC Impact broadly alleges that “Defendants committed unlawful, unfair, and/or fraudulent business practices.” (SAC, at 89.) FC Impact goes on to allege that Bauer engaged in unfair and fraudulent conduct, as follows: 90. BAUER individually engaged in unfair and fraudulent conduct when he represented to FC IMPACT that he was working on their behalf while knowing that he was simultaneously acting against FC IMPACT’S interest. His actions include, but are not limited to, promising FC IMPACT that he would reserve fields and promote a tournament for them, while he actively reserved the fields in his own name and refused to involve FC IMPACT in the tournament. 91. BAUER individually promised to provide all the necessary accounting, vendor information, team data, website and online data, legal requirements, permits, and other documentation and 3 DEFENDANTS’ DEMURRER TO SECOND AMENDED COMPLAINT oe 0 N N U t A W N NN N N N N N N N N m m em em pm p m em e d R N RAR W N S N N N T R W DN = O information necessary to merge the clubs, but he intentionally withheld much if not all of this information seeking to unfairly frustrate the agreement.” (SAC, at 190-91.) 2 FC Impact alleges “BAUER, as president of CSA, engaged in unfair and fraudulent conduct, as follows: 92. BAUER, as president of CSA, engaged in unfair and fraudulent conduct when he represented to FC IMPACT that it was working on their behalf while knowing that it was simultaneously acting against FC IMPACT’S interest. Its actions include, but are not limited to, promising FC IMPACT that it would reserve fields and promote a tournament for them, while it actively reserved the fields in BAUER’s name and refused to involve FC IMPACT in the tournament. 93. BAUER, as president of CSA, promised to provide all the necessary accounting, vendor information, team data, website and online data, legal requirements, permits, and other documentation and information necessary to merge the clubs, but it intentionally withheld much if not all of this information seeking to unfairly frustrate the agreement. (SAC, at 92-93.) FC Impact’s allegations fail to state specific facts establishing unfair, unlawful, or fraudulent conduct on behalf of CSA and Bauer. To establish a claim based on “unlawful” conduct, FC Impact must allege violation of a law. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544 [A “violation of another law is a predicate for stating a cause of action under the UCL’s unlawful prong.”’]; Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1505 [“In effect, the UCL borrows violations of other laws...and makes those unlawful practices actionable under the UCL.”].) A demurrer is properly sustained under the “unlawful” prong if the complaint “identifies no particular section of the statutory scheme which was violated or fails to describe with any reasonable particularity the facts supporting violation.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.) FC Impact’s SAC does not allege the violation of a statutory scheme or other law supporting a UCL claim based on “unlawful” activity." " Indeed, FC Impact’s counsel conceded during counsel’s meet and confer discussion that FC Impact is not seeking relief under the “unlawful” prong of the UCL. 4 DEFENDANTS’ DEMURRER TO SECOND AMENDED COMPLAINT oe 0 N N U t A W N NN N N N N N N N N m m em em pm p m em e d R N RAR W N S N N N T R W DN = O FC Impact similarly fails to allege any “unfair” conduct within the meaning of the UCL. “[Alny finding of unfairness to competitors under section 17200 must be tethered to some legislatively declared policy or proof of some actual or threatened impact on competition.” (Cel- Tech Communications v. Los Angeles Cellular Tel. Co. (1999) 20 Cal.4th 163, 186-87.) “When a plaintiff who claims to have suffered injury from a direct competitor’s “unfair” act or practice invokes section 17200, the word ‘unfair’ in that section means conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition.” (Id. at 187; Gregory v. Albertson’s (2002) 104 Cal. App.4th 845, 854 [where claim of unfair act or practice is predicated on public policy, Cel-Tech requires that policy must be tethered to specific constitutional, statutory, or regulatory provision].) “A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.) FC Impact’s SAC does not allege any conduct violating a specific law or policy or otherwise threaten competition, and therefore fails to allege facts supporting a UCL claim based on “unfair business practices.” FC Impact nevertheless alleges that Defendants’ failures to take the actions they promised to take under the merger and employment agreements constitute “unfair business practices.” However, a mere breach of contract cannot be a predicate for UCL liability. (Puentes v. Wells Fargo Home Mortg., Inc. (2008) 160 Cal. App.4th 638; see also Textron Fin’l Corp. v. National Union Fire Ins. Co. of Pittsburgh (2004) 118 Cal.App.4th 1061, 1072 [“[G]iven the Supreme Court’s disapproval of State Farm’s ‘amorphous’ definition of ‘unfair’ practices and its focus on legislatively declared public policy, reliance on general common law principles to support a cause of action for unfair competition is unavailing.”]; Shroyer v. New Cingular Wireless Services, Inc. (9th Cir. 2010) 622 F.3d 1035, 1044 [“a common law violation such as breach of contract is insufficient” to state a claim of unfair conduct].) In this case, the “unfair business practices” FC Impact alleges in its UCL claim mirror the breaches FC Impact alleged in its breach of contract claims. (SAC, at |] 45, 59-60 [failure to reserve 3 DEFENDANTS’ DEMURRER TO SECOND AMENDED COMPLAINT oe 0 N N U t A W N NN N N N N N N N N m m em em pm p m em e d R N RAR W N S N N N T R W DN = O fields]; qq 41, 65 [failure to provide accounting].) FC Impact fails to allege any unfair or unlawful conduct beyond Defendants’ alleged breaches of their agreements. Accordingly, FC Impact cannot establish a UCL claim based on unfair business practices. FC Impact’s allegations also are insufficient to establish “fraudulent business practices.” To establish a UCL claim based on fraud, plaintiff must allege “facts which ‘show how, when, where, to whom, and by what means” the allegedly fraudulent conduct occurred. (Lazar ,12 Cal.4th at 645.) FC Impact has wholly failed to allege a particular fraudulent business practice, let alone how, when, where, to whom, and by what means the fraudulent conduct occurred. FC Impact’s allegations in its separately pled fraud claim also are insufficient to support a UCL claim because FC Impact’s fraud claim is not sufficiently pled. (Glenn K. Jackson Inc. v. Roe (9th Cir. 2001) 273 F.3d 1192, 1203 [dismissing Section 17200 claim where underlying negligence and fraud claims were insufficient as a matter of law]; Demurrer, IV(B).) FC Impact’s claim for violation of Bus. & Prof. Code section 17200, ef seq. therefore fails to state a claim, and Defendants’ Demurrer to the Fifth Cause of Action should be sustained. B. FC Impact’s Sixth Cause of Action for Fraud Fails to State a Claim FC Impact’s Sixth Cause for Fraud also fails to state a claim. “The elements of promissory fraud ... are (1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promise was made; (3) intent to deceive or induce the promisee to enter into a transaction; (4) reasonable reliance by the promisee; (5) nonperformance by the party making the promise; and (6) resulting damage to the promise[e].” (Rossberg v. Bank of America, N.A. (2013) 219 Cal. App.4th 1481, 1498.) “As with any other form of fraud, each element of a promissory fraud claim must be alleged with particularity.” (Ibid.) In this case, FC Impact fails to allege the requisite elements of its false promise claim.” In its Second Amended Complaint, FC Impact alleges that Bauer “promised to work for FC IMPACT to >In its previously filed Amended Complaint, FC Impact pled its fraud claim against Defendants as an intentional misrepresentation claim. FC Impact alleged that Bauer and CSA committed fraud by promising to work for FC Impact and to take reasonable steps to merge the companies, and then failing to do so. Defendants demurred to the claim on the grounds FC Impact failed to (footnote continued) 6 DEFENDANTS’ DEMURRER TO SECOND AMENDED COMPLAINT oe 0 N N U t A W N NN N N N N N N N N m m em em pm p m em e d R N RAR W N S N N N T R W DN = O promote the merger of the companies,” and that CSA “promised to take reasonable steps to merge the companies.” (SAC, at 97, 102.) FC Impact further alleges that “BAUER, an individual, knew before he signed the contract that he would not perform,” and “BAUER, as president of CSA, knew before execution of THE AGREEMENT, that CSA would not merge with FC IMPACT.” (SAC, at 998, 103.) FC Impact further alleges that Bauer and CSA failed to perform under the agreements by failing to reserve fields, failing to maintain team information, smearing FC Impact’s name, taking money from vendors without a profit, and failing to turn over profits to FC Impact. (SAC, at ]99, 100, 103, 104, 105, 106, 107, 108.) FC Impact, however, fails to allege the required element that Defendants made the alleged false promises with the intent to deceive or induce FC Impact to enter into the alleged merger and employment agreements. (Rossberg, supra, 219 Cal. App.4th at 1498.) FC Impact also fails to allege with any specificity FC Impact’s reasonable reliance on Defendants’ alleged promises. (See, SAC, at 101 [“FC IMPACT relied upon BAUER ’s personal promises to work for them and promote their tournament.”], § 111 [“Plaintiff relied upon such promises to his detriment.”].) Accordingly, FC Impact’s Sixth Cause of Action fails to state a claim for Fraud and Defendants’ Demurrer should be sustained. C. FC Impact’s Seventh Cause of Action for Conversion Fails to State a Claim FC Impact’s conversion claim also is without merit. Conversion is the wrongful exercise of dominion over the property of another. (Plummer v. Day/Eisenberg, LLC (2010) 184 Cal. App.4th 38, 45.) The elements of a conversion claim are: (1) the ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages. (Id.) allege any actual misrepresentations, and, because the purportedly wrongful conduct occurred after the parties entered into the alleged agreements, FC Impact could not and did not allege it justifiably relied on Defendants’ alleged “misrepresentations.” During counsels’ meet and confer discussion, counsel for FC Impact stated that the fraud claim in the SAC is a false promise claim. 7 DEFENDANTS’ DEMURRER TO SECOND AMENDED COMPLAINT oe 0 N N U t A W N NN N N N N N N N N m m em em pm p m em e d R N RAR W N S N N N T R W DN = O “Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment.” (PCO, Inc. v. Christiansen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395-96 [“[A]ctions for the conversion of money have not been permitted when the amount of money involved is not a definite sum.”]; Vu v. California Commerce Club, Inc. (1997) 58 Cal.App.4th 229, 231-32, 235 [allegations regarding “approximate” amount converted insufficient to state cause of action]; Software Design & Application, Ltd. v. Hoefer & Arnett, Inc. (1996) 49 Cal.App.4th 472, 485 [no conversion where money was allegedly misappropriated “over time, in various sums without any indication that it was held in trust for” plaintiff].) As one court explains: The tort of conversion is derived from the common law action of trover. The gravamen of the tort is the defendant’s hostile act of dominion or control over a specific chattel to which the plaintiff has the right of immediate possession. (See generally, Rest.2d Torts, § 222A, com. a, p. 431; 1 Dobbs, The Law of Torts (2001), § 59, pp. 121-122.) That is why money can only be treated as specific property subject to being converted when it is “identified as a specific thing.” (PCO, Inc., 150 Cal.App.4th at 395.) Therefore, “[a] cause of action for conversion of money can be stated only where a defendant interferes with the plaintiff’s possessory interest in a specific, identifiable sum, such as when a trustee or agent misappropriates the money entrusted to him.” (Kim v. Westmoore Partners, Inc. (2012) 201 Cal.App.4th 267, 284.) A “generalized claim for money [is] not actionable as conversion.” (PCO, Inc., 150 Cal. App.4th at 395, quoting Vu, 58 Cal. App.4th at 235.) FC Impact’s conversion claim is fatally defective because it does not allege an identifiable or definite sum of money that Defendants allegedly converted. To the contrary, FC Impact broadly alleges that Defendants have withheld profits from it in breach of the parties’ alleged merger agreement. (SAC at {114 [“As a fiduciary, BAUER was to give Plaintiff money collected from the 2015 and 2016 tournaments according to his written agreement. He collected the money, but has and continues to refuse to give Plaintiff its money.”]; 4 117 [“The amount is identified as ’ of the profits from the 2015 Tournament and 66.66% of the profits from the 2016 Tournament.”].) Because FC 8 DEFENDANTS’ DEMURRER TO SECOND AMENDED COMPLAINT oe 0 N N U t A W N NN N N N N N N N N m m em em pm p m em e d R N RAR W N S N N N T R W DN = O Impact cannot identify a definite sum of money converted by either CSA or Bauer, the conversion allegations fail to state a cause of action. (PCO, Inc., 150 Cal.App.4th at 395-96 [conversion claim failed because plaintiff could only estimate the amount of money allegedly converted); Vu, 58 Cal.App.4th at 231; Software Design, 49 Cal. App.4th at 485.) Even assuming FC Impact alleges a sufficiently identifiable sum of money, FC Impact’s conversion claim fails to allege a possessory interest in the funds - i.e., that it is entitled to a specific sum of money earmarked for its use. FC Impact does not cite to any provision in the alleged agreements entitling FC Impact to profits during the Integration Period. To the contrary, under the plain terms of the agreement attached to the SAC as Exhibit 1, CSA is to have transferred its assets to FC Impact upon the termination of the Integration Period, which was to end December 31, 2015. (SAC, at § 51 [“BAUER was to provide such services from March 28, 2014 through December 31, 2015. On this date, it was the intention of the parties to have fully merged the clubs into FC IMPACT.”]; SAC, Ex. 1, {{ 1.1, 2.1, 3.1.) The Integration Period is defined as the period during which the two soccer clubs are merged. (/d.) However, according to FC Impact’s SAC, the merger was never completed. (SAC, at 44, 67.) FC Impact alleges that it “has a right to its equitable share of profits derived from all business transactions as performed by CSA after the date of execution of THE AGREEMENT.” (SAC at f 116 [emphasis added].) However, FC Impact’s allegation of a general entitlement to the funds is insufficient to state a conversion claim. (PCO, Inc., 150 Cal.App.4th 384.) Because FC Impact fails to identify a legal basis for its having a possessory interest in a definite sum of money, the conversion allegations fail to state a cause of action. Finally, FC Impact’s conversion claim is fatally uncertain because FC Impact fails to identify which of the named defendants allegedly converted funds. FC Impact’s conversion claim alleges that “All DEFENDANTS intentionally and substantially interfered with PLAINTIFF’S personal property by: Taking possession of an amount of money to be proven at trial; Preventing Plaintiff from procuring additional profits; Preventing PLAINTIFF from the use and benefits of the monies; Refusing to account for the money; and Refusing to return the money to Plaintiff after Plaintiff demanded its return.” (SAC, at J 118 [emphasis added].) FC Impact further alleges that 9 DEFENDANTS’ DEMURRER TO SECOND AMENDED COMPLAINT oe 0 N N U t A W N NN N N N N N N N N m m em em pm p m em e d R N RAR W N S N N N T R W DN = O “Defendants collected the profits from these tournaments and know the exact amount, but have refused to provide this information to Plaintiff.” (SAC, at J 117 [emphasis added].) FC Impact further alleges that “[t]he assets include money that has been collected by BAUER, as an individual and/or on behalf of CSA,” and that “BAUER, as an individual and as president of CSA, intentionally withheld, obscured, and took monies owed to Plaintiff, with the intent to permanently deprive Plaintiff of same.” (SAC, at 116, 117 [emphasis added].) FC Impact’s allegations thus fail to distinguish between the Defendants, one of whom is an individual and one of which is a business entity. Moreover, FC Impact’s conversion claim is uncertain and inconsistent because it allegedly arises out of rights owed to FC Impact under the merger agreement with CSA, but is brought against both CSA and Bauer in his individual capacity, and alleges Bauer “and/or” CSA converted funds. Because FC Impact’s claims fail to provide CSA and Bauer with sufficient information to determine which allegations are made against which defendants, Defendants are unable to discern the claims against them. FC Impact’s conversion claim therefore is fatally uncertain. Accordingly, Defendants’ Demurrer to the Seventh Cause of Action for Conversion should be sustained. 3S. CONCLUSION Based on the foregoing, defendants CSA and Bauer respectfully request that the Court sustain their Demurrer to each of Plaintiff’s Fifth, Sixth, and Seventh Causes of Action. Dated: August 10, 2017 CUMMING & ASSOCIATES, APLC By: /s/ William R. Cumming William R. Cumming Attorneys for Defendants Gold Coast X-Treme Soccer Club dba California Soccer Academy and Richard Bauer 10 DEFENDANTS’ DEMURRER TO SECOND AMENDED COMPLAINT oe 0 N N U t A W N NN N N N N N N N N m m em em pm p m em e d R N RAR W N S N N N T R W DN = O DECLARATION OF KATHRYN T. ANDERSON I. I am an attorney at law licensed to practice before all courts in the State of California. I am an attorney at the law firm of Cumming & Associates, APLC since approximately April 2013. Cumming & Associates, APLC serves as attorney of record for defendants Gold Coast X-Treme Soccer Club dba California Soccer Academy and Richard Bauer (“Defendants”) in this action. The facts set forth in this declaration are based upon my personal knowledge. I could and would competently testify as to all the matters set forth herein if called upon to do so. 2 The purpose of this declaration is to describe my efforts to comply with Code of Civil Procedure § 430.41 before filing the demurrer. 3 Section 430.41 states that before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. 4. On August 2, 2017, Marc Ellis, Esq., counsel for Plaintiff Southern California Impact Soccer Club, Inc., dba FC Impact’s (“FC Impact”), and I discussed the Fifth, Sixth, and Seventh Causes of Action alleged in FC Impact’s Second Amended Complaint, and why I believe they are subject to demurrer. x Despite our efforts, we did not reach an agreement resolving the objections raised in the demurrer. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this 10" day of August 2017 at Costa Mesa, California. /s/ Kathryn T. Anderson Kathryn T. Anderson 11 DEFENDANTS’ DEMURRER TO SECOND AMENDED COMPLAINT O O 00 J O N Wn kA W N = N N N N N N N N ND m m e m e m e m e m e m p m e m 0 NN O N Wn BR A W O N = O 0 0 N N N RE W N = O PROOF OF SERVICE Southern California Impact Soccer Club, etc. v. Gold Coast X-Treme Soccer Club, etc. Case No. 30-2016-00805011-CU-BC-CJC I am employed in the City of Costa Mesa, County of Orange, State of California. I am over the age of 18 years and not a party to the within action. My business address is 3080 Bristol Street, Suite 630, Costa Mesa, California 92926. On August 10, 2017, I served the following documents on the parties identified in the attached service list: DEFENDANTS GOLD COAST X-TREME SOCCER CLUB DBA CALIFORNIA SOCCER ACADEMY AND RICHARD BAUER’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF KATHRYN T. ANDERSON, ESQ. PURSUANT TO C.C.P. § 430.41 [ 1] (BY MAIL) I caused each such envelope, with postage thereon fully prepaid, to be placed in the United States mail at Costa Mesa, California. I am readily familiar with the practice of collection and processing of correspondence for mailing, said practice being that in the ordinary course of business, mail is deposited in the United States Postal Service the same day as it is placed for collection. [ 1] (BY PERSONAL SERVICE) I personally handed to the parties identified in the attached service list. [1] (BY GOLDEN STATE OVERNIGHT) I am readily familiar with the practice of collection and processing of correspondence for overnight delivery and know that the document(s) described herein will be deposited in a box or other facility regularly maintained for overnight delivery. [1] (BY FACSIMILE) I caused to be sent via facsimile the document(s) described herein and listed on the attached service list. [ X] (BY EMAIL) I caused to be electronically transmitted the document(s) described herein and listed on the attached service list. My electronic service address is stclaire @ cummingandassociateslaw.com. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on August 10, 2017 at Costa Mesa, California. /s/ Laurie St. Claire Laurie St. Claire 1 PROOF OF SERVICE O O 00 J O N Wn kA W N = ND N N N N N N ND N D mm mm e m e m e m e m e m e m C O NN O N Wn BA W N D = OO VO 0 0 N D B R A W N = Oo SERVICE LIST Southern California Impact Soccer Club, etc. v. Gold Coast X-Treme Soccer Club, etc. Case No. 30-2016-00805011-CU-BC-CJC Marc JD Ellis Law Offices of Marc JD Ellis, APLC 20042 Beach Blvd., Ste. 100 Huntington Beach, CA 92648 Telephone: 714-848-9532 Facsimile: 714-625-8918 E-mail: mellis@bclawoffices.com Attorneys for Plaintiff Southern California Impact Soccer club, Inc. dba FC Impact, a California Non-Profit Corporation 2 PROOF OF SERVICE