Demurrer To Amended ComplaintDemurrerCal. Super. - 4th Dist.September 29, 2017© o o J S N wn Br W N N O N N N N N N N N e e e e e s E e e e e ow ~~ O N W h RA W O N = O O e y n n E W N = O RUTAN & TUCKER, LLP Stephen A. Ellis (State Bar No. 119704) sellis@rutan.com Steven J. Goon (State Bar No. 171993) sgoon(@rutan.com Samantha L. Goates (State Bar No. 310610) sgoates(@rutan.com 611 Anton Boulevard, Suite 1400 Costa Mesa, California 92626-1931 Telephone: 714-641-5100 Facsimile: 714-546-9035 ELECTRONICALLY FILED Superior Court of California, County of Orange 11/30/2018 at 02:13:00 FM Clerk of the Superior Court By Jeannette Dowling, Deputy Clerk Attorneys for Defendants Kevin Coleman and Robert Lorenzetti and Defendant/Cross-Complainant Net Development Company SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER BRUCE ORR, an individual, Plaintiff, VS. KEVIN COLEMAN, an individual; ROBERT LORENZETTI, an individual; NET DEVELOPMENT COMPANY, a California corporation; and DOES 1 through 20, Defendants. NET DEVELOPMENT COMPANY, a California corporation Cross-Complainant, Vs. BRUCE ORR, an individual, and ROES 1 through 10, inclusive, Cross-Defendants. Case No. 30-2017-00947178-CU-CO-CIC Assigned to Hon. Frederick P. Horn Dept. C64 DEFENDANTS KEVIN COLEMAN, ROBERT LORENZETTI, AND NET DEVELOPMENT COMPANY'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF SAMANTHA L. GOATES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 430.41(a)(3) IN SUPPORT [[Proposed] Order sustaining Demurrer filed herewith] Date: Time: Dept.: January 16, 2019 1:30 p.m. Co64 Date Action Filed: Trial Date: September 29, 2017 June 3, 2019 -1- 2686/017604-0072 13114609.2 a11/30/18 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT OO oo ~ 3 O N Wn hb WwW N = N O R R N D N N N N D R e e e s E e = e s e e 0 -~ O N hh RAR W N = S O N Y RE W N m o O TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on January 16, 2019 at 1:30 p.m., or as soon thereafter as the matter may be heard, in Department 64 of the above-entitled court, defendants Kevin Coleman, Robert Lorenzetti, and Net Development Company (collectively, “Defendants”) will and hereby demur to the fourth, fifth, sixth, seventh, eighth, ninth, tenth, and eleventh causes of action in the First Amended Complaint (“FAC”) filed by plaintiff Bruce Orr. | This Demurrer is based on the grounds that the fourth, fifth, sixth, seventh, eighth, ninth, tenth, and eleventh causes of action in the FAC do not state facts sufficient to constitute a cause of action against Defendants pursuant to Code of Civil Procedure § 430.10(e). This Demurrer is based on this Notice of Demurrer, the attached Memorandum, the Declaration of Samantha L. Goates, the pleadings and records on file in this case, those matters of which the court may take judicial notice, and upon such additional argument and papers as may be presented at the hearing in support of the Demurrer. Dated: November 30, 2018 RUTAN & TUCKER, LLP STEPHEN A. ELLIS STEVEN J. GOON ; SAMANTHA L. COATRS - \ - Y FAN L \O oo ~ AN Wn EE N wo ro p- << B. Lorenzetti Received No Benefit From Plaintiff And Thus Could Not Be Unjustly Enriched. Even if unjust enrichment were a valid cause of action, Plaintiff’s fourth cause of action still fails to allege a claim against Lorenzetti. At best, Plaintiffs allegations demonstrate that the purported benefits Plaintiff provided for which he seeks to recover were provided pursuant to a contract with (and as a result of representations made by) Coleman and Net Development - not Lorenzetti. (See, FAC, 7 25, 27, 28, 57.) Thus, Lorenzetti has not been unjustly enriched. (Maglica v. Maglica (1998) 66 Cal. App.4th 442, 450 [“The idea that one must be benefited by the goods and services is thus integral to recovery in quantum meruit; hence courts have always required that the plaintiff have bestowed some benefit on the defendant as a prerequisite to recovery.”].) At a minimum, the fourth cause of action should be dismissed as to Lorenzetti. V. PLAINTIFF FAILS TO PLEAD HIS FIFTH, SIXTH, AND SEVENTH CAUSES OF ACTION WITH THE REQUISITE SPECIFICITY. Plaintiff's fifth, sixth, and seventh causes of action for fraud, constructive fraud, and negligent misrepresentation - which are solely brought against Coleman and Net Development - fail because Plaintiff has not pleaded facts with the requisite specificity. A. Fraud, Constructive Fraud, And Negligent Misrepresentation Must Be Pleaded With Specificity. The elements of a fraud cause of action are: (1) a misrepresentation, (2) knowledge of the falsity of the misrepresentation, (3) intent to induce reliance on the misrepresentation, (4) justifiable reliance, and (5) resulting damages. (Cadlo v. Owens- Illinois, Inc. (2004) 125 Cal. App.4th 513, 519.) “The elements of a claim for negligent misrepresentation are nearly identical.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal. App.4th 1150, 1166 [“Only the second element is different, requiring the absence of reasonable grounds for believing the misrepresentation to be true instead of knowledge of its falsity.”].) Likewise, the elements of constructive fraud are: “(1) a fiduciary or confidential relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive; =] 1= 2686/017604-0072 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO 13114609.2 al1/30/18 PLAINTIFF'S FIRST AMENDED COMPLAINT © 0 2 O N Wn B A L NY T N No B o No No No r o [N S] N o p t -_ - - -_ -_ po -_ - - o o ~] AN w n + w b o -_ Oo \O o o EN | aN wn += Ww No po nt << and (4) reliance and resulting injury (causation).” (Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 516 fn. 14.) “[TThe facts constituting every element of the fraud must be alleged with particularity . . ..” (Goldrichv. Natural Y Surgical Specialties, Inc. (1994) 25 Cal. App.4th 772, 782; accord Cooper v. Equity Gen. Ins. (1990) 219 Cal.App.3d 1252, 1262 [“in California, every element of a cause of action for fraud must be alleged both factually and specifically”].) The same pleading requirement applies to negligent misrepresentation and constructive fraud. (See, Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 [negligent misrep.]; see also Daniels, supra, 125 Cal. App.4th at 1166 [negligent misrep.]; Knox v. Dean (2012) 205 Cal. App.4th 417, 434 [constructive fraud]; Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal. App.4th 949, 961 [constructive fraud].) The purpose of this heightened pleading standard is twofold. First, “fairness to the defendant demands that he should receive the fullest possible details of the charge in order to prepare his defense” because allegations of fraud involve a very serious attack on character. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) Second, the heightened pleading standard promotes principals of judicial economy by permitting trial courts to “weed out nonmeritorious actions on the basis of the pleadings.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216-17.) Notably, the California Supreme Court has reiterated its expectation that trial courts enforce these heightened pleading requirements: [1]n California, fraud must be pled specifically; general and conclusory allegations do not suffice. Thus, the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect. This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. We trust the trial courts of this state to enforce this pleading requirement. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993 [emphasis added].) For these reasons, a general pleading of the legal conclusion of fraud is insufficient; rather, the facts underlying the alleged misrepresentations must be alleged specifically in 12 2686/017604-0072 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO 131146092 al1/30/18 PLAINTIFF'S FIRST AMENDED COMPLAINT OO © 13 O N wn B A W ND ND ND N N N N N N N m e e e e e e m e m e e e l 0 ~~ O N wn BRA W D R O D N N Y N R E W I N D = O the complaint. (Children’s Television, supra, 35 Cal.3d at 216.) Thus, when asserting a fraud claim, the plaintiff must plead specific facts which “show how, when, where, to whom, and by what means representations were tendered.” (Stansfield, 220 Cal. App.3d at 73; see also, Tarmann v. State Farm. Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157 [“Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.”].) B. Plaintiff Fails To Allege His Fraud Causes Of Action With The Requisite Specificity. In support of his fraud-based causes of action, Plaintiff fails to plead sufficient facts underlying the misrepresentations allegedly made by Coleman and Net Development. Specifically, the FAC fails to include the required “when, where, . . . and by what means the representations were tendered.” (Robinson Helicopter, supra, 34 Cal.4th at 993.) When. The FAC fails to explain when Coleman and Net Development made the misrepresentations. In fact, in Paragraph 63 - the only paragraph that links the alleged misrepresentations with any date - merely states “Defendants later repeated such promises many times though [sic] and including at least the year 2016.” That general allegation does not provide the level of detail required by California law. Plaintiff is required to provide a reference for the date(s) on which the representations were made. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal. App.4th 743, 766.) The bare allegation of “[m]any times” is hopelessly vague. Where. The FAC also completely fails to explain where Coleman and Net Development made the alleged misrepresentations. Nowhere does Plaintiff explain whether the representations were made in an office, on the sidewalk, in a car, out at lunch, at a Christmas party, or at any other place. By What Means. Finally, the FAC completely fails to explain zow Coleman and Net Development tendered the misrepresentations. Defendants are left guessing at -13- 2686/017604-0072 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO 13114609.2 a11/30/18 PLAINTIFF'S FIRST AMENDED COMPLAINT \O oo ~~ [@ ) wn + Ww [\ ] - N O N N N N N N N N D R m m e e e s e R e e e s e s e s oo ~] aN wn aN Ww ro po t le ms ) Oo oo ~~ ] aN wn ~ w No - whether Plaintiff asserts claims based on representations made over the phone, in person, in an email, by carrier pigeon, or by some other means. Because the facts constituting the required elements of fraud are not alleged with particularity, Plaintiff's fraud claims fail, and this Demurrer should be sustained. VI. PLAINTIFE’S EIGHTH, NINTH, TENTH, AND ELEVENTH CAUSES OF ACTION AGAINST LORENZETTI FAIL AS A MATTER OF LAW. Plaintiff's eighth cause of action for inducing breach of contract, ninth cause of action for intentional interference with contractual relations, tenth cause of action for intentional interference with prospective advantage, and eleventh cause of action for negligent interference with prospective advantage fail to assert claims against Lorenzetti. First, as an alleged agent/employee of the actual contracting parties (i.e., Coleman and Net Development) according to Paragraph 7 of the FAC, Lorenzetti cannot be liable for interference as a matter of law. (Kasparian v. County of Los Angeles (1995) 38 Cal. App.4th 242, 262-66 [party to prospective economic relationship cannot be held liable for tort of interference with that relationship]; Asahi Kasei Pharma Corp. v. Actelion Ltd. (2013) 222 Cal. App.4th 945, 963-64 [corporate agents and employees acting for and on behalf of their principal cannot be liable for interference with prospective advantage].) Second, even if a claim for interference could be alleged in this context, Plaintiff fails to allege any act of interference by Lorenzetti that was independently wrongful beyond the supposed interference itself, a required element of Plaintiff’s tenth and eleventh causes of action for interference with prospective economic advantage. (Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393.) Thus, Plaintiff’s interference claims fail. A. Lorenzetti, As An Employee/Agent Of A Contracting Party, Cannot Be Held Liable For Interference With His Employer/Principals’ Economic Relations. Plaintiff’s FAC alleges that at all times, Lorenzetti was Coleman and Net Development's agent/employee, and “was at all times acting within the course and scope of -14- 656/017604.0072 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO 131146092 al 1/30/18 PLAINTIFF'S FIRST AMENDED COMPLAINT © o o 3 O N wn Re W N NN B o b o [N e] rN N o r o No r o -_ rt -_ f t - -_- - - -_- - o o J aN wm PB Ww ro - {a nt \ O o o J aN wn E N Ww N o - oS such relationship with committing the acts alleged in this complaint.” (FAC, §7.) Itis well established that ‘corporate agents and employees acting for and on behalf of a 290 corporation cannot be held liable for inducing a breach of the corporations contract. (Asahi Kasei, supra, 222 Cal. App.4th at 963-64 [quoting Mintz v. Blue Cross of California (2009) 172 Cal. App.4th 1594, 1604].) Indeed, employees and agents “cannot be held liable for interfering with its principal’s contract.” (Mintz, supra, 172 Cal. App.4th at 1604- 06.) The rationale is clear - interference with a contractual or economic expectancy cannot be converted into a tort claim merely by styling the claim as one for tortious interference: A Party to an Economic Relationship Cannot, as a Matter of Law, Commit or Conspire To Commit a Tortious Interference Therewith. There is an important limitation to the use of this tort as a remedy for the disruption of contractual relationships. It can only be asserted against a stranger to the relationship. “Consistent with its underlying policy of protecting the expectations of contracting parties against frustration by outsiders who have no legitimate social or economic interest in the contractual relationship, the tort cause of action for interference with a contract does not lie against a party to the contract. [Citations.] “It is obvious that if an action is brought for interference with contractual relationship by one party to a contract against another who is also a party to that same contract, the grievance of the plaintiff is, in essence, breach of contract; and, in such case, plaintiff is entitled to recover all damages flowing from the breach. In such an instance to allow the plaintiff to sue under the tort theory of wrongful interference with contractual rights would not only be superfluous, but also would enable him to recover tort damages (e.g., punitive damages, damages for mental suffering) to which he is not entitled under California law.” [Citations.] * * * The logic of this reasoning should, in our view, have a fortiori application where there is no contractual but only a prospective relationship. If a party has no liability in tort for refusing to perform an existing contract, no matter what the reason, he certainly should not have to bear a burden in tort for refusing to enter into a contract where has no obligation to do so. (Kasparian, supra, 38 Cal. App.4th at 262-66.) This rule barring tort liability for interference claims extends not only to parties to prospective economic relationships and/or contractual relationships, but also extends to that party’s agents and employees where they are acting within the course and scope of that agency/employment relationship: / 1 -15- 2686/017604-0072 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO 13114609.2 al1/30/18 PLAINTIFF'S FIRST AMENDED COMPLAINT © 0 3 O N Wn Bs W N N N N N N N N N N e e e e = e s e s e e © 1d O N nh A W O N = O Ov N Y n n B R A W N = O We agree with the Woods court that “[a] stranger,” as used in Applied Equipment, means on who is not a party to the contract or an agent of a party to the contract. (Woods, supra, 129 Cal. App.4th at p. 353, ...; accord, Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1604, . . . . [settled that ‘corporate agents and employees acting for an on behalf of a corporation cannot be held liable for inducing a breach of the corporation’s contract’”].) (Asahi Kasei Pharma, supra, 222 Cal.App.4th at 963-64.) Put simply, Lorenzetti cannot be held liable for inducing breach of contract, interfering with contractual relations, or interfering with prospective economic advantage. B. The FAC Fails To Allege Lorenzetti Interfered In A Wrongful Manner, A Required Element Of Plaintiff’s Claims For Interference With Prospective Economic Advantage. “[A] plaintiff seeking to recover for an alleged interference with prospective contractual or economic relations must plead and prove as part of its case-in-chief that the defendant not only knowingly interfered with the plaintiff’s expectancy, but engaged in conduct that was wrongful by some legal measure other than the fact of interference itself.” (Della Penna, supra, 11 Cal.4th at 393.) “[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1159.) Plaintiff's FAC does not make this requisite allegation. The FAC’s only allegations as to any alleged “wrongful” conduct by Lorenzetti is found in Paragraphs 100 and 110, where it is claimed in conclusory fashion that Lorenzetti “acted wrongfully in utilizing Plaintiff's work product, including financial documents Plaintiff prepared using information methods and models that were proprietary and owned exclusively by Plaintiff.” Aside from this bare conclusion however, the FAC fails to explain how Lorenzetti’s conduct was actually “wrongful.” There is no reference to any “constitutional, statutory, regulatory, [or] common law” Lorenzetti supposedly violated, and earlier allegations of the FAC reveal this alleged conduct was not wrongful at all, but was at least in part facilitated and cooperated in by Plaintiff himself. -16- 2686/017604-0072 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO 13114609.2 a11/30/18 PLAINTIFFE’S FIRST AMENDED COMPLAINT © 00 3 O N Wn bk W N R D N N N N N N N N = e e e e e m e e e e e s e e Co - d O N hh B R A W N = D YO N Y Y n l E W N m e Oo Specifically, Paragraph 23 of the FAC alleges that when Lorenzetti was hired by Coleman as an additional consultant for the Project, Lorenzetti was “given all of the analyses and projections that Plaintiff had developed for The Azusa Property and Plaintiff assisted him with the preparation of presentations to be made to potential investors.” (Emphasis added.) How then is Lorenzetti’s use of Plaintiff’s materials “wrongful?” Plaintiff cannot make it wrongful by simply later changing his mind and insisting Lorenzetti not use his supposed “work product.” Similarly, the FAC completely fails to explain how Lorenzetti’s alleged actions in utilizing “Plaintiffs work product” (assuming for this Demurrer the truth of that allegation) interfered in any way with Plaintiff's relationship with Coleman and Net Development. In fact, the FAC alleges the exact opposite. Paragraph 25 of the FAC states as follows: 25. From the beginning and throughout the process, including after hiring Defendant Lorenzeiti, Defendant Coleman represented to Plaintiff and others that Plaintiff was a partner in the project, essential to its success and would be compensated as a partner upon completion of development of The Azusa Property. In fact, Defendant Coleman assured Plaintiff, individually and in the presence of others, that Plaintiff was more important to the project at The Azusa Property than anyone else, including the architects, engineers, contractors and even Defendant Lorenzetti. (See, also, FAC, 933.) If what Plaintiff alleges in Paragraphs 25 and 33 is true, Lorenzetti’s actions clearly did not “interfere” with Plaintiff’s relationship with Coleman and Net Development, because according to Plaintiff, he was still the cat’s meow in Coleman’s eyes. In fact, Paragraph 34 of the FAC makes clear that Plaintiff's contractual relationship (if any) with Coleman and Net Development was disrupted suddenly and unexpectedly by Coleman, not Lorenzetti. (FAC, § 34.) Plaintiff is pleading out of both sides of his mouth, and, put simply, the FAC fails to connect any “wrongful” actions taken by Lorenzetti with any interference with Plaintiff’s prospective economic relations. To the contrary, Plaintiff’s allegations suggest Lorenzetti was at most Plaintiffs competitor, as both were working in tandem to locate investors for the development of the Azusa Project. (FAC, 923.) As such, Plaintiff's causes of action for intentional and -17- 2686/017604-0072 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO 13114609.2 a11/30/18 PLAINTIFF'S FIRST AMENDED COMPLAINT © © 3 O N wn BA WwW N = N O N N N N N N N ND m m e s e e e R e R e e e e e R 00 ~~ O N Wn RA W N = D vO N Y nn R W - OO negligent interference with prospective advantage are barred by California’s well- established “privilege of free competition.” (PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal. App.4th 579, 603 [disapproved of on other grounds by Korea Supply, supra, 29 Cal.4th at 1159, fn. 11] [“Under the privilege of free competition, a competitor is free to divert business to himself as long as he uses fair and reasonable means.”].) Lorenzetti was apparently able to attract investors to the Project, while Plaintiff clearly was not. The allegations of the FAC reveal Plaintiff has simply taken defeat poorly. Given Plaintiffs failure to allege Lorenzetti engaged in any “independently wrongful” conduct, Plaintiffs interference claims against Lorenzetti fail as a matter of law. VII. CONCLUSION. For the foregoing reasons, Defendants” Demurrer should be sustained in its entirety. Defendants request that the fourth, fifth, sixth, seventh, eighth, ninth, tenth and eleventh causes of action in Plaintiff's FAC be dismissed, and that Lorenzetti be dismissed from this Action. Dated: November 30, 2018 RUTAN & TUCKER, LLP By: AJ) JN) (A NJ SAMANTHA L. GOATES Attorneys for Defendants Kevin Coleman and Robert Lorenzetti and Defendant/Cross-Complainant Net Development Company -18- 2686/017604-0072 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO 13114609.2 a11/30/18 PLAINTIFFS FIRST AMENDED COMPLAINT © © 3 S N hn BA WwW N = R O D ND D N D N N N N = e m e e e s e e = 0 0 ~ ~ O N t h PBR W O N ee O V W N Y B W L D Oo DECLARATION OF SAMANTHA L. GOATES I, Samantha L. Goates, declare as follows: 1. I am an associate attorney at the law firm of Rutan & Tucker, LLP (“Rutan”). I am a member in good standing of the State Bar of California. I make this Declaration in support of Defendants Kevin Coleman, Net Development Company, and Robert Lorenzetti’s (collectively, Defendants) Demurrer to Plaintiff Bruce Orr’s (“Plaintiff”) First Amended Complaint. I have personal knowledge of the facts set forth in this Declaration and, if called as a witness, could and would testify competently to such facts under oath. 2. I am one of the primary attorneys representing Defendants in this action. I am also one of the attorneys handling the day-to-day administration of this matter, including but not limited to reviewing and preparing pleadings and discovery. Accordingly, I am familiar with all aspects of this file, including the status of this action. 3. On November 16, 2018, I e-mailed Charles Hokanson, counsel for Plaintiff, requesting a conference call to meet and confer regarding this Demurrer. Mr. Hokanson responded to my e-mail, stating his unavailability during the week of November 19-23, 2018. On November 23, 2018, I e-mailed Mr. Hokanson again, outlining the reasons justifying the demurrer, offering to discuss any of the points raised in the e-mail, and requesting his position on opposing the Demurrer. A true and correct copy of the e-mail chain between myself and Mr. Hokanson is attached hereto as Exhibit A. 4. To date, I have not received a response from Mr. Hokanson regarding my November 23, 2018 e-mail. Executed on the 30th of November 2018, at Costa Mesa, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 5 3 5 } i BOON - J - J AN ~ \ Ee ~~ Samantha L. Goates -19- 2686/017604-0072 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO 13114609.2 al1/30/18 PLAINTIFF’S FIRST AMENDED COMPLAINT EXHIBIT A Goates, Samantha From: : Goates, Samantha Sent: Friday, November 23, 2018 8:52 AM To: cwhokanson@towerlawcenter.com Cc: Goon, Steve; Ellis, Steve Subject: RE: Orr v. Coleman et al.,, Case No. 30-2017-00947178 Attachments: Defendant Lorenzetti_s Reply ISO Motion for Judgment on the Pleadings.PDF Charlie - In light of our inability to conduct a conference call this week, please find below and attached the grounds that Defendants plan to demurrer to Plaintiff's First Amended Complaint (“FAC”). After your review, please let us know whether you would like to discuss anything further and whether you plan to oppose the demurrer. Defendant Lorenzetti The FAC alleges the fourth cause of action (unjust enrichment), eighth cause of action (inducing breach of contract), ninth cause of action (intentional interference with contractual relations), tenth cause of action (intentional interference with prospective advantage), and eleventh cause of action (negligent interference with prospective advantage) against Defendant Lorenzetti. These claims all fail as a matter of law and fact (and thus are subject to demurrer) for the detailed reasons set forth in Defendant Lorenzetti’s Reply in support of the Motion for Judgment on the Pleadings. For your convenience, a copy of that Reply is attached hereto. Defendants Coleman and Net Development The FAC also alleges the fourth cause of action (unjust enrichment), fifth cause of action (fraud), sixth cause of action (constructive fraud), and seventh cause of action (negligent misrepresentation) against Defendants Coleman and Net Development. These claims also all fail as a matter of law and fact. As for the fourth cause of action, unjust enrichment is not a legally recognized cause of action. (Melchior v. New Line Prods., Inc. (2003) 106 Cal.App.4th 779.) As for the fifth, sixth, and seventh causes of action, the FAC fails to plead the underlying fraud with the requisite specificity. (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772 [“the facts constituting every element of the fraud must be alleged with particularity . . ..]; Small v. Fritz Cos., Inc. (2003) 30 Cal.4th 167 [same pleading requirements apply to negligent misrepresentation]; Knox v. Dean (2012) 205 Cal.App.4th 417 [same pleading requirements apply to constructive fraud].) General pleading of the legal conclusion of fraud is insufficient; rather, the facts underlying the alleged misrepresentations must be alleged specifically in the FAC. Thus, when asserting a fraud claim, the plaintiff must plead specific facts which “show how, when, where, to whom, and by what means the representations were tendered.” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59.) The FAC does not meet these standards. The FAC is completely devoid of the following specifics: when Defendant Coleman (individually and on behalf of Net Development) made the alleged misrepresentations, where Defendant Coleman made the alleged misrepresentations (in the office, out at lunch, at a Christmas party?), and by what means the representations were tendered (in person? Over the phone? In an email?). We look forward to hearing your position. Thank you, Samantha Goates Rutan & Tucker, LLP 611 Anton Boulevard, 14th Floor Costa Mesa, CA 92626 (714) 338-1809 (direct) SGoates@rutan.com www. rutan.com RUTAN Privileged And Confidential Communication. This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (18 USC §§ 2510-2521), (b) may contain confidential and/or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited. From: cwhokanson@towerlawcenter.com [mailto:cwhokanson@towerlawcenter.com] Sent: Monday, November 19, 2018 7:23 AM To: Goates, Samantha 4 Subject: RE: Orr v. Coleman et al., Case No. 30-2017-00947178 | am out of the office today through Friday. | can be available in the afternoon next Monday or Tuesday. From: Goates, Samantha Sent: Friday, November 16, 2018 8:47 AM To: cwhokanson@towerlawcenter.com Cc: Goon, Steve ; Ellis, Steve Subject: Orr v. Coleman et al., Case No. 30-2017-00947178 Charlie - We would like to discuss a demurrer we plan to file as to the First Amended Complaint. To that end, would you please let us know your availability to meet and confer Monday, November 19, 2018, or Wednesday, November 21, 2018? Thank you, Samantha Goates Rutan & Tucker, LLP 611 Anton Boulevard, 14th Floor Costa Mesa, CA 92626 (714) 338-1809 (direct) SGoates@rutan.com www. rutan.com RUTAN Privileged And Confidential Communication. This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (18 USC §§ 2510-2521), (b) may contain confidential and/or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the 2 electronic message. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited. © 3 O h OO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 RUTAN & TUCKER, LLP Stephen A. Ellis (State Bar No. 119704) sellis@rutan.com ELECTRONICALLY FILED Steven J. Goon (State Bar No. 171993) Superior Court of California, sgoon@rutan.com . County of Drange Samantha L. Goates (State Bar No. 310610) 10/24/2018 at 02:17:00 PH sgoates(@rutan.com Clerk of the Superior Court 611 Anton Boulevard, Suite 1400 By e Clerk Deputy Clerk Costa Mesa, California 92626-1931 Telephone: 714-641-5100 Facsimile: 714-546-9035 Attorneys for Defendants Kevin Coleman and Robert Lorenzetti and Defendant/Cross-Complainant Net Development Company SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER BRUCE ORR, an individual, Case No. 30-2017-00947178-CU-CO-CIC Plaintiff, Assigned to Hon. Frederick P. Horn Dept. C64 Vs. KEVIN COLEMAN, an individual, DEFENDANT ROBERT ROBERT LORENZETTI, an individual; LORENZETTI’S REPLY IN SUPPORT NET DEVELOPMENT COMPANY, a OF HIS MOTION FOR JUDGMENT California corporation; and DOES 1 ON THE PLEADINGS; through 20, DECLARATION OF STEVEN J. GOON IN SUPPORT THEREOF Defendants. NET DEVELOPMENT COMPANY, a Date: October 31, 2018 California corporation Time: 1:30 p.m. Dept.: C64 Cross-Complainant, VS. Date Action Filed: September 29, 2017 Trial Date: January 28, 2019 BRUCE ORR, an individual, and ROES 1 through 10, inclusive, Cross-Defendants. 2686/017604-0072 12991125.1 10/24/18 -1- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION. Defendant Robert Lorenzetti (“Lorenzetti”) files this Reply in support of his Motion for Judgment on the Pleadings (“Motion”), seeking the dismissal of the fourth cause of action (unjust enrichment), fifth cause of action (fraud), sixth cause of action (constructive fraud), seventh cause of action (negligent misrepresentation), eighth cause of action (intentional interference with | prospective advantage), ninth cause of action (negligent interference with prospective advantage), and tenth cause of action (negligence) in Plaintiff Bruce Orr’s (“Plaintiff”) Complaint. Each of those claims fails to state facts sufficient to constitute a cause of action against Lorenzetti. Plaintiff filed no Opposition in response to the Motion. Instead, Plaintiff served - without first requesting leave of court - Lorenzetti with a First Amended Complaint (“FAC”) and a Notice of Election to File First Amended Complaint in Response to Defendant Lorenzetti’s Motion for Judgment on the Pleadings (“Notice of Election to File FAC”), purporting to take the Motions hearing off calendar pursuant to California Code of Civil Procedure section 472. This is procedurally improper. Plaintiff's FAC does not fall under the purview of section 472 because Lorenzetti filed his Answer to Plaintiff's Complaint nearly a year ago. (Code Civ. Proc. § 472(a) [“A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed . . ..”].) Thus, Plaintiff’s Notice of Election to File FAC is an insufficient response to the Motion, and the Motion is therefore unopposed. As such, and for the reasons set forth in Lorenzetti’s Motion, this Court should dismiss Plaintiff's claims against Lorenzetti and enter a Judgement of Dismissal in his favor. Moreover, even if Plaintiffs Notice of Election to File FAC can be construed as a request under Code of Civil Procedure section 473 to file an amended pleading (it should not be), the Court should deny Plaintiff's request. Requests to amend pleadings should be denied where (like here) the new amendments would prove futile, (see, e.g., Tucker v. Pac Bell Mobile Servs. (2012) 208 Cal. App.4th 201, 211), and Plaintiff, who holds the burden of proof, cannot demonstrate otherwise. (Foundation for Taxpayer & Consumer Rights v. Nextel Communications, Inc. (2006) 143 Cal. App.4th 131, 135 [“[TThe plaintiff has the burden of demonstrating that ‘there is a reasonable possibility the plaintiff could cure the defect with amendment.””].) As explained in full 2686/017604-0072 12991125.1 a10/24/18 -2- 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 below, Plaintiff's purported FAC fails to fix the pleading deficiencies outlined in the Motion. Therefore, Lorenzetti respectfully requests the Court grant the Motion in its entirety and deny Plaintiff’s purported request to file an amended pleading. 11. PLAINTIFF'S FAILURE TO OPPOSE THE MOTION JUSTIFIES DISMISSING THE COMPLAINT’S CAUSES OF ACTION AGAINST LORENZETTI. Plaintiff failed to timely file an Opposition to the Motion. (Declaration of Steven J. Goon [“Goon Decl.”], § 4.) As such, and for the reasons set forth in Lorenzetti’s Motion, this Court should dismiss Lorenzetti from this action because (1) Plaintiff’s causes of action against Lorenzetti (i.e., the Complaint’s fourth, fifth, sixth, seventh, eighth, ninth, and tenth claims) are insufficiently pled, and/or (2) Plaintiffs causes of action against Lorenzetti fail to state valid claims against Lorenzetti. III. PLAINTIFF CANNOT FILE AN AMENDED COMPLAINT AS A MATTER OF RIGHT. Instead of filing an Opposition to the Motion, Plaintiff served Lorenzetti with the proposed FAC and Notice of Election to File FAC, purporting to take this Motion off calendar under the guise of California Code of Civil Procedure section 472. (Goon Decl, { 5, Exs. B, C, D.) This is procedurally improper. Code of Civil Procedure section 472(a) states: A party may amend its pleading once without leave of the court af any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. (Code Civ. Proc. § 472(a) [emphasis added].) This brief window to file an amended complaint without leave of court has long since passed in this case. Indeed, Lorenzetti’s Answer to the Complaint was filed on December 20, 2017. (Goon Decl, 3, Ex. A.) In fact, this Motion HES filed pursuant to Code of Civil Procedure section 438(c)(3)(B)(ii) 2686/017604-0072 ] 12991125.1 a10/24/18 -3- No 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and common law as a motion for judgment on the pleadings. Plaintiff cites to no case law-and Lorenzetti could find none-that permits Plaintiff to file an amended complaint as a matter of right and without leave of court in response to Lorenzetti’s Motion. (See, Code Civ. Proc. § 438(h)(1) [“The motion provided for in this section may be granted with or without leave to file an amended complaint. .,.”].) IV. PLAINTIFF FAILS TO JUSTIFY HIS REQUEST TO AMEND HIS COMPLAINT. To the extent Plaintiff's Notice of Election to File FAC can be construed as a request under Code of Civil Procedure section 473 to file an amended pleading (it should not be), the Court | should deny the request. Section 473 states in pertinent part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading . ...” (Code Civ. Proc. § 473(a)(1).) While California courts typically follow a general rule of liberality in allowing amendments, (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939), this liberality does not apply where the new amendments are futile. (See, e.g., Tucker v. Pac Bell Mobile Servs. (2012) 208 Cal App 4th 201, 211 [“Leave to amend should not be granted where amendment would be futile.”].) Indeed, where a “proposed amendment fails to state a cause of action, it is proper to deny leave to amend.” (Foxborough v. Van Atta (1994) 26 Cal. App.4th 217, 230 [citing Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 1125, p.541]; see, also, Cal. Cas. Gen. Ins. Co. v. Superior Court (1985) 173 Cal. App.3d 274, 280-81 [disapproved on other grounds in Kransco v. Am. Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390, 407].) Plaintiff alone bears the burden of demonstrating that amending his Complaint would cure the pleading defects. (Foundation for Taxpayer & Consumer Rights v. Nextel Communications, Inc. (2006) 143 Cal. App.4th 131, 135 [“[ The plaintiff has the burden of demonstrating that ‘there is a reasonable possibility the plaintiff could cure the defect with amendment.””]; see, also, Blank v. Kirwan (1985) 39 Cal.3d 31 1, 318 [“The burden of proving such reasonable possibility is squarely on the plaintiff.”].) In response to the Motion, Plaintiff s proposed FAC (1) removed Lorenzetti from Plaintiff's causes of action for fraud, constructive fraud, negligent misrepresentation, and negligence; (2) kept causes of action for unjust enrichment, intentional interference with 2686/017604-0072 12991125.1 al0/24/18 -4- 10 11 12 13 14 15 16 17 18 19 20 21 v3. 23 24 25 26 21 28 prospective advantage, and negligent interference against Lorenzetti; and (3) added new causes of action for inducing breach of contract and intentional interference with contractual relations against Lorenzetti. Because Plaintiff's proposed FAC fails to fix the numerous pleading deficiencies outlined in the Motion, and because Plaintiffs new causes of action against Lorenzetti also fail as a matter of law, Plaintiffs request (if any) to file the FAC should be denied. A. Unjust Enrichment. Plaintiffs proposed FAC does not even begin to fix the issues with his unjust enrichment claim. As fully set forth in the Motion, Plaintiff’s unjust enrichment claim fails as a matter of law because it is not a legally recognized cause of action, (Melchior v. New Line Productions, Inc. (2003) 106 Cal. App.4th 779, 794), and even if it were, Plaintiff's allegations demonstrate (at best) that the purported benefits he provided for which he seeks to recover were provided pursuant to the contract with (and as a result of representations made by) the developer defendants (Kevin Coleman and Net Development Company)’ - not Lorenzetti. (See, Complaint, 9925, 27,28, 57.) Plaintiff's proposed FAC does nothing to fix these deficiencies. (See, Proposed FAC, 1925, 27, 28, 57.)* Indeed, Plaintiff continues to fail to allege what benefit (if any) he provided to Lorenzetti. (Maglica v. Maglica (1998) 66 Cal. App.4th 442, 450 [“The idea that one must be benefited by the goods and services is thus integral to recovery in quantum meruit; hence courts have always required that the plaintiff have bestowed some benefit on the defendant as a prerequisite to recovery.”].) Permitting the proposed amendment to Plaintiff’s unjust enrichment claim would thus prove futile. | B. Intentional And Negligent Interference With Prospective Advantage. Plaintiff likewise fails to properly allege causes of action for intentional and negligent interference with prospective advantage in the proposed FAC. As explained fully in the Motion, Lorenzetti, as an alleged agent/employee of the other defendants (i.e., Coleman and Net Development), cannot be liable for interference as a matter of law. (Kasparian v. County of Los 1 ) Hereinafter referred to as “Coleman” and “Net Development.” For the Court's convenience, a redlined copy of the FAC is attached to the Declaration of Steven J. Goon, demonstrating all of the purported changes Plaintiff wishes to make to the Complaint. (Goon Decl., § 6, Ex. E.) 2686/017604-0072 12991125.1 10/24/18 © -5- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 28 Angeles (1995) 38 Cal. App.4th 242, 262-66 [party to prospective economic relationship cannot be liable for tort of interference with that relationship]; Asahi Kasei Pharma Corp. v. Actelion Lid. (2013) 222 Cal. App.4th 945, 963-64 [corporate agents and employees acting for and on behalf of their principal cannot be liable for interference with prospective economic advantage].) Moreover, even if a claim for interference could be alleged - contrary to law - Plaintiff must allege Lorenzetti’s “acts of interference” were independently wrongful beyond the fact of the interference itself, a required element of a claim for interference with prospective economic advantage. (Della Penna v. Toyota Motor Sales, U.S. A., Inc. (1995) 11 Cal.4th 376, 393.) Plaintiffs FAC fails to include any new allegations that fix these pleading obstacles. Indeed, the FAC still alleges that Lorenzetti was a “principal, agent, servant, [and] employee” of Coleman and Net Development, and still alleges that Lorenzetti interfered with Plaintiff’s relationship with Coleman and Net Development. (FAC, 17, 97, 108.) For that reason alone, Plaintiff's claims for intentional and negligent interference with prospective advantage still fail as a matter of law. (See, supra, Asahi Kasei, 222 Cal. App.4th at 963-64.) Additionally, Plaintiff s FAC fails to include any allegations demonstrating Lorenzetti’s alleged “act of interference” was independently wrongful beyond the act of interference itself. (See, supra, Della Penna, 11 Cal 4th at 393.) While the FAC includes new allegations that Lorenzetti “acted wrongfully in utilizing Plaintiffs work product, including financial documents Plaintiff prepared using information methods and models that were proprietary and owned exclusively by Plaintiff,” (FAC, 9 100, 110), the FAC fails to explain how these acts (even if they did happen) interfered with Plaintiff's relationship with Coleman and Net Development. In fact, the FAC makes clear that Plaintiff's contractual relationship (if any) with Coleman and Net Development was disrupted by Coleman alone.’ (FAC, 34.) In sum, allowing Plaintiff to amend his causes of action for intentional and negligent 3 Plaintiff also curiously seeks to both (1) recover monetary damages for the time, effort, and “work product, including financial documents Plaintiff prepared” under the theory that he was contractually obligated to provide these things in exchange for monetary reimbursement; and (2) recover unjust enrichment for the defendants’ unfair use of Plaintiff’s work product. But Plaintiff cannot have it both ways-he was either contractually obligated to provide his time, effort, and work product (in which case the defendants had the right to use Plaintiff’s work product) or he was not. 2686/017604-0072 12991125.1 10/24/18 -6- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 interference with prospective advantage would prove futile. C. Inducing Breach Of Contract And Intentional Interference With Contractual Relations. Plaintiffs new causes of action alleged in the FAC for inducing breach of contract and ce intentional interference with contractual relations fair no better.* It is well-settled that “corporate agents and employees acting for and on behalf of a corporation cannot be held liable for inducing a breach of the corporation’s contract.”” (Asahi Kasei, supra, 222 Cal. App.4th at 967 [quoting Mintz v. Blue Cross of California (2009) 172 Cal. App.4th 1594, 1604].) Indeed, employees and agents “cannot be held liable for interfering with its principal’s contract.” (Mintz, supra, 172 Cal. App.4th at 1604-06.) Plaintiff, however, continues to allege that Lorenzetti was a “principal, agent, servant, [and] employee” of Coleman and Net Development, and continues to allege that Lorenzetti interfered with Plaintiff's relationship with Coleman and Net Development. (FAC, 997, 82,90.) Thus, the FAC’s inclusion of the new causes of action for inducing breach of contract and intentional interference with contractual relationship would prove futile. V. CONCLUSION. For the foregoing reasons, Lorenzetti’s Motion should be granted in its entirety and Plaintiff should be precluded from filing the FAC. 4 “The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1129.) 2686/017604-0072 . 12991125.1 a10/24/18 -7- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Dated: October 24, 2018 2686/017604-0072 12991125.1 10/24/18 RUTAN & TUCKER, LLP STEPHEN A. ELLIS STEVEN J. GOON IAL. - GOATHEN AN a GOON___J Attorneys for Defendants Kevin Coleman and Robert Lorenzetti and Defendant/Cross-Complainant Net Development 10 LE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF STEVEN J. GOON I, Steven J. Goon, declare as follows: 1. I am a partner with the law firm of Rutan & Tucker, LLP, counsel of record for defendants Kevin Coleman and Robert Lorenzetti and Defendant/Cross-Complainant Net Development in this action. I make this declaration in support of defendant Robert Lorenzetti’s (“Mr. Lorenzetti”) Reply in support of the Motion for Judgment on the Pleadings (“Motion”). I am a member in good standing of the State Bar of California. Ihave personal knowledge of the facts set forth in this Declaration and, if called as a witness, could and would testify competently to such facts under oath. 2. I am one of the primary attorneys representing Mr. Lorenzetti in this action. Tam also one of the attorneys handling the day-to-day administration of this matter, including but not limited to reviewing and preparing pleadings and discovery. Accordingly, I am familiar with all aspects of this file, including the status of this action. 3. On December 20, 2017, my office filed Mr. Lorenzetti’s Answer to Plaintiff Bruce Orr’s (“Plaintiff”) Complaint. A true and correct copy of Mr. Lorenzetti’s Answer is attached hereto as Exhibit A. 4. On September 18, 2018, my office filed the Motion on behalf of Mr. Lorenzetti. To date, my office has not received any opposition to the Motion from Plaintiff. 3. On October 18, 2018, I received an email from Plaintiff's counsel, Charles Hokanson, with two attachments entitled: (1) Plaintiffs Notice of Election to File First Amended Complaint in Response to Defendant Lorenzetti’s Motion for Judgment on the Pleadings (“Notice of Election to File FAC”); and (2) Plaintiffs First Amended Complaint (“FAC”). True and correct copies of Mr. Hokanson’s October 18, 2018 email, the Notice of Election to File FAC, and the FAC are attached hereto as Exhibit B, Exhibit C, and Exhibit D, respectively. I 111 111 11 2686/017604-0072 12991125.1 210/24/18 -9- 10 11 12 13 14 15 16 17 18 192 20 21 22 23 24 25 26 27 28 6. Attached as Exhibit E is a true and correct copy of a word document prepared by my office, which redlines the differences between Plaintiff’s original Complaint and the FAC (Exhibit D). I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 24, 2018, at Costa Mesa, Califo / AS Steven J. Goon--- 2686/017604-0072 12991125.1 21072418 -10- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed by the law office of Rutan & Tucker, LLP in the County of Orange, State of California. Iam over the age of 18 and not a party to the within action. My business address is 611 Anton Boulevard, Suite 1400, Costa Mesa, California 92626-1931. My electronic notification address is jmullins@rutan.com. On November 30, 2018, I served on the interested parties in said action the within: DEFENDANTS KEVIN COLEMAN, ROBERT LORENZETTI, AND NET DEVELOPMENT COMPANY’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF SAMANTHA L. GOATES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 430.41(A)(3) IN SUPPORT as stated below: Charles W. Hokanson Charles W. Hokanson Law Offices of Charles Hokanson Law Offices of Charles Hokanson 140 Linden Ave., Suite 283 4401 Atlantic Ave., Suite 200 Long Beach, CA 90802 Long Beach, CA 90807 Facsimile No.: 562-318-3696 Facsimile No.: 562-318-3696 E-Mail: cwhokanson@towerlawcenter.com E-Mail: cwhokanson@towerlawcenter.com (BY MAIL) by placing a true copy thereof in sealed envelope(s) addressed as shown above. In the course of my employment with Rutan & Tucker, LLP, I have, through first-hand personal observation, become readily familiar with Rutan & Tucker, LLP’s practice of collection and processing correspondence for mailing with the United States Postal Service. Under that practice, I deposited such envelope(s) in an out-box for collection by other personnel of Rutan & Tucker, LLP, and for ultimate posting and placement with the U.S. Postal Service on that same day in the ordinary course of business. If the customary business practices of Rutan & Tucker, LLP with regard to collection and processing of correspondence and mailing were followed, and I am confident that they were, such envelope(s) were posted and placed in the United States mail at Costa Mesa, California, that same date. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. (BY ELECTRONIC SERVICE through One Legal, LLC) by electronically delivering the document(s) listed below via eService through One-legal Service (www.onelegal.com) system which sends an email notification of the filing to the parties and counsel of record listed above. (BY E-MAIL) by transmitting a true copy of the foregoing document(s) to the e-mail addresses set forth above. Executed on November 30, 2018, at Costa Mesa, California. 2808/017604-0072 12998088.1 a11/30/18 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. i §4 11 LALA Ne Janice Mullins LAAMIAA (Type or print name) J - (Signature) j 2808/017604-0072 12998088.1 a11/30/18
