Demurrer To Amended Complaint

Demurrer

Cal. Super. - 4th Dist.May 31, 2018

O © 0 0 ~ N O o U 1 B A W w W N D R N D N N N N N N N M N F P FP F FP F FP F F P F P F P F P R c o N N o o u l A W w W N N F P O V U 0 0 N N o Y U U B s W w N N + P o O o BURKHALTER KESSLER CLEMENT & GEORGE LLP Daniel J. Kessler, Esq., Bar No. 173710 Ros M. Lockwood, Esq., Bar No. 194718 Jonathan R. Stilz, Esq., Bar No. 308681 2020 Main Street, Suite 600 Irvine, California 92614 Telephone: (949) 975-7500 Facsimile: (949) 975-7501 Attorneys for Defendants, David Kim and Independent Clinical Trials Consulting, LLC dba Physician Alliance Research Center SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE RICHARD C.KEECH,M.D., CASE NO. 30-2018-00996140-CU-C0O-C)C Plaintiff, Assigned For All Purposes: Judge Melissa R. McCormick V. Department C13 DAVID KIM an individual; INDEPENDENT CLINICAL TRIALS CONSULTING, LLC, a DEFENDANTS’ NOTICE OF DEMURRER California Limited Liability Company, dba AND DEMURRER TO FIRST AMENDED PHYSICIAN ALLIANCE RESEARCH CENTER COMPLAINT; MEMORANDUM OF aka PARC; and DOES 1 to 50, POINTS AND AUTHORITIES Defendants. [Declaration of Jonathan R. Stilz, Esq. in Support and (Proposed) Order Filed and Served Concurrently Herewith] RESERVATION NO.: 72941134 Date: March 7, 2019 Time: 1:30 p.m. Dept: C13 Complaint Filed: May 31, 2018 Trial Date: None DEMURRER TO FIRST AMENDED COMPLAINT O © 0 0 ~ N O o U 1 B A W w W N D R N O N N N N N D N D N D N N F P FP F FP F F P FP F F P F P FR E R = c o N N O O U 1 A W N F P O O V U 0 0 N N o O U l B A W N N H O TO ALL PARTIESAND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that, on March 7, 2019 at 1:30 p.m., or as soon thereafter as the matter may be heard, in Department C13 of the above-captioned Court, located at 700 Civic Center Drive West, Santa Ana, California 92701, Defendants, David Kim and Independent Clinical Trials Consulting, LLC dba Physician Alliance Research Center will and herby do generally and specially demurto the first cause of action through the fourth cause of action in Plaintiff Dr. Richard C. Keech’s First Amended Complaint. Defendants generally demur to causes of action one through fourof the First Amended Complaint because it fails to state sufficient facts to constitute causes of action. Defendants further specially demurto causes of action one through four of the First Amended Complaint because it is uncertain and fails to state whether the contract it is founded upon is oral, written, or implied by conduct. This Demurrer will be based upon this Notice of Demurer, the M emorandum of Points and Authorities, the Declaration of Jonathan R. Stilz, Esq., any reply memorandum that may be filed, any matter on which the Court may or must take judicial notice, all pleadings, records, and files in this action, and on such evidentiary matters and oral argument as may be presented at or before the hearing on this Motion. DATED: November5, 2018 BURKHALTER KESSLER CLEMENT & GEORGE LLP By: /s/JonathanR. Stilz Daniel J. Kessler, Esq. Ros M. Lockwood, Esq. Jonathan R. Stilz, Esq. Attorneys for Defendants, David Kim and Independent Clinical Trials Consulting, LLC dba Physician Alliance R esearch Center 2 DEMURRER TO FIRST AMENDED COMPLAINT O © 0 0 ~ N O o U 1 B A W w W N D R N O N N N N N D N D N D N N F P FP F FP F F P FP F F P F P FR E R = c o N N O O U 1 A W N F P O O V U 0 0 N N o O U l B A W N N H O DEMURRER Defendants generally and specially demur to the first cause of action through the fourth cause of action in the First Amended Complaint on the following grounds: DEMURRER TO FIRST CAUSE OF ACTION 1. Defendants generally demur to the first cause of action for Breach of Contract because it fails to state sufficient facts to constitute a cause of action. Code Civ. P. § 430.10(e). Defendants specially demur to the first cause of action for Breach of Contract because it is uncertain. Code Civ. P. § 430.10(f). Defendants specially demurto the first cause of action for Breach of Contract because it fails to state whether the contract it is founded upon is oral, written, or implied by conduct. Code Civ. P. § 430.10(g). DEMURRER TO SECOND CAUSE OF ACTION 2. Defendants generally demur to the second cause of action for Interference with Economic Relations because it fails to state sufficient facts to constitute a cause of action. Code Civ. P. § 430.10(e). Defendants specially demur to the second cause of action for Interference with Economic Relations because it is uncertain. Code Civ. P. § 430.10(f). Defendants specially demur to the second cause of action for Interference with Economic Relations because it fails to state whether the contract it is founded upon is oral, written, or implied by conduct. Code Civ. P. § 430.10(qg). DEMURRER TO THIRD CAUSE OF ACTION 3. Defendants generally demur to the third cause of action for Breach of the Implied Covenant of Good Faith and Fair Dealing because it fails to state sufficient facts to constitute a cause of action. Code Civ. P.§ 430.10(e). Defendants specially demur to the third cause of action for Breach of the Implied Covenant of Good Faith and Fair Dealing because it fails to state whether the contract itis founded upon is oral, written, or implied by conduct. Code Civ. P. § 430.10(g). 3 DEMURRER TO FIRST AMENDED COMPLAINT O © 0 0 ~ N O o U 1 B A W w W N D R N O N N N N N D N D N D N N F P FP F FP F F P FP F F P F P FR E R = c o N N O O U 1 A W N F P O O V U 0 0 N N o O U l B A W N N H O DEMURRER TO FOURTH CAUSE OF ACTION 4, Defendants generally demur to the fourth cause of action for an Accounting because it fails to state sufficient facts to constitute a cause of action. Code Civ. P. § 430.10(e). Defendants specially demur to the fourth cause of action for an Accounting because it fails to state whetherthe contract itis founded upon is oral, written, or implied by conduct. Code Civ. P.§ 430.10(g). DATED: December 5, 2018 BURKHALTER KESSLER CLEMENT & GEORGE LLP By: /s/JonathanR. Stilz Daniel J. Kessler, Esq. Ros M. Lockwood, Esq. Jonathan R. Stilz, Esq. Attorneys for Defendants, David Kim and Independent Clinical Trials Consulting, LLC dba Physician Alliance R esearch Center 4 DEMURRER TO FIRST AMENDED COMPLAINT O © 0 0 ~ N O o U 1 B A W w W N D R N O N N N N N D N D N D N N F P FP F FP F F P FP F F P F P FR E R = c o N N O O U 1 A W N F P O O V U 0 0 N N o O U l B A W N N H O MEMORANDUM OF POINTS AND AUTHORITIES) l. INTRODUCTION Defendants David Kim (“Kim”) and Independent Clinical Trials Consulting, LLC dba Physician Alliance Research Center (“PARC”) have been forced to demur a second time to Plaintiff Richard C. Keech, M.D.’s First Amended Complaint in order to resolve its continuing fatal pleading deficiencies. After Defendants prevailed on their demurrer to Plaintiffs initial Complaint and made multiple attempts to meet and confer with Plaintiff’s counsel, Plaintiff failed to take heed of the pleading defects noted by both the Court and Defendantsfiling a near identical First Amended Complaint (“FAC”) thus necessitating this additional demurrer. [Declaration of Jonathan R. Stilz, Esq. “Stilz Decl.” 49 3-7]. This matter arises out of an agreement between PARC and Plaintiff whereby Plaintiff was to provide services for PARC’s clinical medicaltrials and serve as an investigator in the trials. Plaintiff was not an employee of Kim or PARC. In fact, Plaintiffs relationship with PARC was that of an independent contractor. After resigning from his role as investigator of PARC’s clinicaltrials, Plaintiff brought this instant litigation in an attempt to assert rights he never had while performing services for PARC as an independent contractor. Plaintiff brings claims against both PARC and Kim for breach of contract, interference with economic relations, breach of the implied covenant of good faith and fair dealing, and a demand for an accounting. However, in Plaintiff’s FAC, he fails to state facts sufficient to constitute any cause of action against Kim as an individual, aside from identifying Kim as PARC’s principal and making conclusory alter ego allegations with no facts to support the same. [FAC 99 2-3]. Plaintiff further fails to state facts sufficient to constitute a cause of action for Breach of Contract or Interference with Economic Relations against both PARC and Kim. Additionally, Plaintiff’s causes of action for Breach of Contract and Interference with Economic Relations are uncertain as plead. Plaintiff additionally fails to state facts sufficient to determine whether the contract all four causes of action are founded upon is oral, written, or implied by conduct. For all the reasons set forth below, the Court should sustain the demurrerto each cause of action in the FAC as to all Defendants and dismiss the entire case with prejudice. 5 DEMURRER TO FIRST AMENDED COMPLAINT O © 0 0 ~ N O o U 1 B A W w W N D R N O N N N N N D N D N D N N F P FP F FP F F P FP F F P F P FR E R = c o N N O O U 1 A W N F P O O V U 0 0 N N o O U l B A W N N H O Il. FACTUAL ALLEGATIONS Plaintiff brings causes of action against Kim and PARC for: 1) Breach of Contract; 2) Interference with Economic Relations; 3) Breach of the Implied Covenant of Good Faith and Fair Dealing; and 4) an Accounting. [/d. 191-35]. Plaintiff’s liability theory with respect to Kim is founded upon a cursory, boilerplate assertion that “at substantially all relevant times herein alleged, Defendant David Kim controlled the actions and occurrences of the other named Defendants, as they were his alter ego.” [Id. 12]. Plaintiff alleges no facts to support his conclusion that Kim should be liable for the actions ofPARC because Kim is PARC’s alter ego. Plaintiff goes on to allege that PARC, Kim, and himself formed an “agreement” whereby Plaintiff would perform services as an “investigator” in PARC’s clinical medical trials. [/d. 4]. However, Plaintiff does not plead facts sufficient to determine whether this “agreement” was an enforceable contract, and further, whetherthis contract was oral, written, or implied by conduct. Facts sufficient to determine what type of contract was formed, if any, are an indispensable part of a properly pled complaint where (as in this case) all three causes of action are founded upon an alleged contract. Plaintiffmerely asserts that the clinical trials were “conducted pursuant to written agreements” but alleges no facts to support that a written agreement was ever validly entered into by the parties. [/d.]. Plaintiff further pleads existence of a joint venture, but similarly alleges no facts to indicate the terms or intent of the joint venture, or which parties allegedly entered into the joint venture agreement. [/d.]. As demonstrated herein, Plaintiff’s claim of tortious interference also fails. Plaintiff’s FAC does not allege any facts to support that a contract was formed between himself and the “Sponsors” that are responsible for paying PARC to conduct the clinical trials. [/d. 191-26]. Further, Plaintiff does not allege facts sufficient to show that there was to be a future contract formed between the Sponsors and himself for his services during the clinical trials. [/d.]. The FAC also alleges harm caused by PARC and Kim because: they ceased to have Plaintiff as investigator for the ongoing clinicaltrials, are refusing to allow him into PARC’s facility, are not providing him with a facility in which to conducttrials, and are failing to offer him future clinical trials from the Sponsors so that he may conduct work as an investigator. [/d. 113-15]. Plaintiff alleges 6 DEMURRER TO FIRST AMENDED COMPLAINT O © 0 0 ~ N O o U 1 B A W w W N D R N O N N N N N D N D N D N N F P FP F FP F F P FP F F P F P FR E R = c o N N O O U 1 A W N F P O O V U 0 0 N N o O U l B A W N N H O that these actions by Defendants have harmed his professional reputation, and are causing ongoing monetary damages. [/d. 915]. However, Plaintiff’s FAC completely fails to allege any facts to show that any of the alleged actions conducted by Defendants were carried out by Kim the individual. For the reasons set forth in this demurrer, the deficiencies to Plaintiff’s FAC are fatal and the Court should sustain the demurrer to each cause of action as to all Defendants. Il. LEGAL STANDARD W hen any ground for objection to a complaint appears on the face of the complaint, the party responding to the complaint may object to it by demurrer. Code Civ. Proc. § 430.30(a). A party may demur to a complaint because the complaint does not state facts sufficient to constitute a cause of action. Id. § 430.10(e). A party may also demur to a complaint because the complaint does notstate facts sufficient to determine whether the contract a cause of action is founded upon is oral, written, or implied by conduct. Id. § 430.10(g). In determining whether a complaint states facts sufficient to constitute a cause of action or determine the type of contract a cause of action is founded upon, the trial court may consider all material facts pleaded in the complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions, or conclusions of fact or law. Young v. Gannon (2002) 97 Cal.A pp.4th 209, 220; Adelman v. Associated Intern. Ins. Co. (2001) 90 Cal.A pp.4th 352, 359. Vv. LEGAL ARGUMENT A. Plaintiff Fails to State Facts Sufficient to Constitute Any Cause of Action Against David Kim. Plaintiffs FAC fails for the second time to properly allege any cause of action against Kim and the manner in which all causes of action are alleged against Kim continues to be fatally defective. More specifically, paragraphs two and three of Plaintiff’s FAC do not properly assert a theory of alter ego necessary for Kim to be liable for the alleged actions of PARC. The alter ego allegations in these paragraphs are uncertain and void of any substantive facts. The FAC simply concludes that Kim is liable for PARC’s conduct because Kim is its alter ego and vice versa. Given that the alter ego doctrine applies to prevent abuse of a legal entity’s limited liability and is an extreme and sparingly used remedy, 7 DEMURRER TO FIRST AMENDED COMPLAINT O © 0 0 ~ N O o U 1 B A W w W N D R N O N N N N N D N D N D N N F P FP F FP F F P FP F F P F P FR E R = c o N N O O U 1 A W N F P O O V U 0 0 N N o O U l B A W N N H O Plaintiff’s continued failure to plead these allegations with certainty and specificity is fatal to the attempted alter ego theory. In California, two conditions must be met before the alter ego doctrine will be invoked. First, there must be such a unity of interest and ownership between the corporation and its equitable owner such that the separate personalities of the corporation and the shareholder do not in reality exist. Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538. Second, in order to invoke the alter ego doctrine there must be a showing that an inequitable outcome would result if the acts in question are treated as those of the entity alone. Id. (holding that plaintiff failed to allege facts sufficient to show an injustice would result if the alter ego doctrine was not applied). A's to the first condition, the FAC fails to plead facts sufficient to support the application of the alter ego doctrine with respect to Kim. A limited liability company is legally distinct from its owners such that the owners are not responsible for the LLC’s liabilities and obligations, unless there is a unity ofinterest between the LLC and its equitable owners such that they are each other’s alter ego. People v. Pacific Landmark (2005) 129 Cal.App.4th 1203, 1212 (noting the alter ego doctrine and factors are applicable to LLCs). In that rare occasion, a court may “pierce the veil” of an LLC’s limited liability shield and hold its owners individually liable for LLC actions and obligations, but onlyif: 1) there has been a comingling of funds and assets; 2) a holding out by one entity that it is liable for the debts of the other; 3) identical equitable ownership in the two entities; 4) use of the same offices and employees; and, 5) the use of one of the entities as the shell of the other. Sonora, 83 Cal.App.4th at 538-539. Plaintiff's FAC fails to allege any facts whatsoever addressing these required factors. Similarly, the FAC on its face fails to allege facts showing an inequitable outcome would result if the acts in question are treated as those of the entity alone. In the instant matter, similar to the plaintiff in Sonora, Plaintiff’s FAC alleges facts to support this second essential requirement. In fact, the FAC fails to allege any wrongful acts by Kim that, if alleged solely to PARC, would result in an inequitable outcome. For these reasons, the FAC fails for a second time to properly allege any of its causes of action against Kim individually. The Court should therefore sustain the demurrer without leave to amend to all four causes of action in Plaintiffs FAC as to Kim. 8 DEMURRER TO FIRST AMENDED COMPLAINT O © 0 0 ~ N O o U 1 B A W w W N D R N O N N N N N D N D N D N N F P FP F FP F F P FP F F P F P FR E R = c o N N O O U 1 A W N F P O O V U 0 0 N N o O U l B A W N N H O B. The First Cause of Action For Breach of Contract Fails as it is Uncertain W hich Contract, If Any, Plaintiff is Pursuing. The first cause of action for Breach of Contract is uncertain and defective as plead. Namely, Plaintiff wholly fails identify what contracts, if any, were allegedly breached. The fourth paragraph of the FAC makes reference to a joint venture which is ambiguous on its face as the facts plead do not state whether the joint venture is oral or written, or what parties were to be bound by the alleged joint venture agreement. To properly plead a cause of action for breach of contract, a plaintiff must plead: 1) the contract; 2) plaintiff’s performance of the contract or excuse for nonperformance; 3) defendant’s breach of the contract; and 4) plaintiff's resulting damages. Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458. Further, a plaintiff must identify on the face of the complaint whether the contract is oral, written, or implied by conduct; and if the contract is written, “the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” Id. at 458-59. Not only does Plaintiff fail to clearly indicate in the FAC whether the alleged contract was oral, written, or implied by conduct, but he also completely fails to plead any of the terms of the contract not only verbatim, but in any capacity. Plaintiff further fails to incorporate any contracts into his FAC by reference. The FAC allegesthat the clinicaltrials were “conducted pursuant to written agreements,” however, such a written contract does not appear to exist. Paragraph 13 of the FAC makes reference to the written contracts contained in Exhibit 1 and 2 of the FAC, however, these are not contracts at all, but merely lists apparently compiled by Plaintiff of the various clinical trials that were conducted. Further, the exact same Exhibits were attached to the original Complaint, which did not plead the existence of any written contract at all. Thus, itis apparent that Exhibits 1 and 2 cannot be the written agreements alleged in the FAC. As such, Plaintiff’s first cause of action is woefully deficient as plead insofar as it is ambiguous and unintelligible which contracts, if any, were allegedly breached by Defendants and to what terms, if any, Defendants were allegedly bound. Therefore, the Court should sustain the demurrer to the first cause of action in Plaintiff’s FAC dueto its fatal uncertainty. 9 DEMURRER TO FIRST AMENDED COMPLAINT O © 0 0 ~ N O o U 1 BH A W w W N D R N O N N N N N N D N D N N F P FP F FP F FP F FP F F P F P F R P P c o ~ N o o u i A W w W N N F P O O V U 0 0 N N o o U l B A W w N N + H O o C. T he Second Cause of Action For “Interference with E conomic Relations” Fails as it is Uncertain W hich Interference Tort Plaintiff is Pursuing and Plaintiff Fails to Allege Sufficient Facts to Support Either Tort. The second cause of action for “Interference with Economic Relations” is almost identical to the same defectively pled claim at issue in Defendants’ prior demurrer. It is, therefore, uncertain and ambiguous on its face and defectively pled against both Kim and PARC (in addition to the deficiencies set forth above with respect to purported alter ego liability). When pled correctly, a plaintiff may assert a cause of action either for interference with prospective economic advantage, or interference with contractual relations. However, it is unclear which of these two claims Plaintiff is pursuing and his FAC does not allege facts sufficient to constitute either one of them against PARC or Kim. 1. Plaintiff F ails to State a Cause of Action for Interference with Prospective E conomic Advantage. A cause of action for interference with prospective economic advantage requires the following: 1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; 2) the defendant's knowledge of the relationship; 3) intentional acts on the part of the defendant designed to disrupt the relationship; 4) actual disruption of the relationship; and 5) economic harm to the plaintiff proximately caused by the acts of the defendant. Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153. Additionally, the third element not only requires an intentional act by plaintiff, but that intentional act must also be wrongful by some legal measure independent of the alleged interference. Id. Plaintiffs FAC entirely fails to address this critical element making no factual allegations of an independently wrongful act by PARC (or Kim) with the intention of interfering with a prospective economic advantage of Plaintiff. Additionally, Plaintiffs FAC does not allege facts sufficient to show that Plaintiff had the probability of a future economic benefit from a third party. The FAC only alleges facts to show that Plaintiff received an economic benefit for performing services for PARC as an independent contractor, but it does not allege facts sufficient to show that there was a relationship 10 DEMURRER TO FIRST AMENDED COMPLAINT O © 0 0 ~ N O o U 1 BH A W w W N D R N O N N N N N N D N D N N F P FP F FP F FP F FP F F P F P F R P P c o ~ N o o u i A W w W N N F P O O V U 0 0 N N o o U l B A W w N N + H O o between Plaintiff and the Sponsors responsible for funding the clinical trials. The FAC attempts to allege written agreements created a joint venture between PARC, the Sponsors, and Plaintiff, however, the FA C alleges no facts to support such an agreement between the parties. Therefore, even if Plaintiff’s tortious interference claim was not fatally uncertain (and it is), the FAC fails to allege facts sufficient to constitute a cause of action for interference with prospective economic advantage. 2. Plaintiff F ails to State a Cause of Action for Interference with Contractual Relations. Alternatively, a plaintiff may also plead a cause of action for interference with contractual relations. However, unlike a cause of action for interference with prospective economic advantage, a cause of action for interference with contractual relations requires a legally binding contract between plaintiff and the third party. Id at 1157; Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126. In the instant matter, Plaintiff’s FAC fails to plead facts to support the existence of a valid contract between Plaintiff and the Sponsors who funded the clinical trials and contracted with PARC to conduct them. Without the existence of such a contract, Plaintiff has not sufficiently plead a cause of action for interference with contractual relations. Plaintiff’s FAC attempts to allege the clinical trials were “conducted pursuant to written agreements” between PARC, the Sponsors, and Plaintiff, giving rise to a joint venture agreement. However, the FAC wholly fails to allege any facts sufficient to show that any joint venture agreement was ever formed, and also fails to allege facts sufficient to show any valid contract between Plaintiff and the Sponsors. Therefore, Plaintiff’s FAC fails to allege facts sufficient to constitute a cause of action for interference with contractual relations. For the foregoing reasons, Plaintiff’s second cause of action not only is uncertain on its face, but it also fails to plead sufficient facts to constitute a valid cause of action. The Court should therefore sustain the demurrer to the second cause of action in Plaintiff’s FAC as against Kim and PARC. 11 DEMURRER TO FIRST AMENDED COMPLAINT O © 0 0 ~ N O o U 1 B A W w W N D R N O N N N N N D N D N D N N F P FP F FP F F P FP F F P F P FR E R = c o N N O O U 1 A W N F P O O V U 0 0 N N o O U l B A W N N H O D. Plaintiff Fails to State W hether the “Agreement” All Four Causes of Action Are Allegedly Founded Upon is Oral, Written, or Implied by Conduct. As set forth above, when an action is founded upon a contract (such as in the instant case), the complaint is subject to demurrer if it cannot be ascertained from the pleading whether the contract is oral, written, or implied by conduct. Maxwell v. Dolezal (2014) 231 Cal.A pp.4th 93, 98; See also, Otworth 166 Cal.App.3d at 458-59. In Maxwell, the court held that despite the fact that the allegations within the claim did not specify whether the contract was oral, written, or implied by conduct, that determination could be made once the complaint was read as a whole (in a separate section plaintiff alleged they entered into a written contract). This is not the case with Plaintiff’s FAC. Further, as with a breach of written contract claim, when any claim is founded upon a written contract, the complaint must either state the terms of the contract verbatim, or a copy of the contract must be attached to the complaint and incorporated by reference. Id. As discussed in Section IV (B) above, Plaintiff fails entirely to satisfy either of these requirements. When read in its entirety, Plaintiff’s FAC fails to allege facts sufficient to determine whether the contract all three causes of action are founded upon is oral, written, or implied by conduct. As a result, it cannot be determined from the face of the pleading whether the alleged contract, if enforceable at all, was oral, written, or implied; and as such is subject to demurrer. Plaintiff’s causes of action for: 1) Breach of Contract; 2) Interference with Economic Relations; 3) Breach of the Implied Covenant of Good Faith and Fair Dealing; and, 4) an Accounting are all causes of action that are inherently founded upon a contract. Plaintiff references that the clinical trials were “conducted pursuant to written agreements,” later goes on to allege that “as such, it was ajoint venture,” and also alleges that Defendants “breached said written and oral contracts.” However, in Plaintiff’s FAC it is entirely uncertain which alleged contract, if any, each cause of action applies to. Further, Plaintiff wholly fails in his FAC to allege any facts whatsoever to support the formation of a valid joint venture or written agreement between Plaintiff and Defendants. Plaintiff also fails to identify any terms of any contract alleged in his Complaint and also fails to attach any contract to his Complaint, as required to properly plead a cause of action founded upon a written contract. 12 DEMURRER TO FIRST AMENDED COMPLAINT O © 0 0 ~ N O o U 1 B A W w W N D R N O N N N N N D N D N D N N F P FP F FP F F P FP F F P F P FR E R = c o N N O O U 1 A W N F P O O V U 0 0 N N o O U l B A W N N H O As aresult, all four causes of action as to Kim and PARC fail to state facts sufficient to determine whether the contract they are founded upon is oral, written, or implied by conduct. The Court should therefore sustain the instant demurrer to all four causes of action as to all Defendants. E. Plaintiff Cannot Cure the Defects Plaguing His First Amended Complaint And Therefore the Action Should be Dismissed With Prejudice. Plaintiff failed to respond in any capacity to Defendants’ meet and confer efforts regarding the fatal deficiencies to Plaintiff’s original Complaint. Defendants then filed their demurrer to Plaintiff’s Complaint, which Plaintiff both failed to file an opposition to, as well as failed to appear for at the hearing. Then without any attempt to communicate with Defendants to avoid further pleading issues, Plaintiff waits until the filing deadline (October 29) and files the operative FAC, which wholly fails to cure any ofthe deficiencies raised by Defendants’ first demurrer, as well as this Court’s order regarding the same. Plaintiff has now, again, failed entirely to respond to Defendants’ efforts to meet and confer on the fatal deficiencies plaguing Plaintiff’s FAC (the very same deficiencies upon which the Court sustained Defendants’ demurrer to the Complaint). Plaintiff’s utter lack of any response or participation in the pleading stage of this litigation highlights Plaintiff’s inability to cure the fatal deficiencies to his FAC. If there is a reasonable possibility that a defect in a complaint can be cured by amendment the court must allow plaintiff leave to amend, however, the burden is on the plaintiff to demonstrate this reasonable possibility and the manner in which the complaint may be amended and how that amendment will change the legal effect of the pleading. Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.A pp.4th 298, 302; See also, Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 44. In Plaintiff’s FAC, no reasonable possibility exists. Plaintiff has failed in any capacity to demonstrate that the deficiencies in his Complaint and FAC can be cured by amendment. Itis evident by Plaintiff’s actions that no such amendmentexists which has the reasonable possibility to cure all of the FAC’s defects identified by Defendants and the Court in Defendants’ previous demurrer, and identified again in this instant demurrer. Thus, the Court should sustain Defendants’ demurrer to Plaintiff’s FAC without leave to amend. 13 DEMURRER TO FIRST AMENDED COMPLAINT O © 0 0 ~ N O o U 1 B A W w W N D R N O N N N N N D N D N D N N F P FP F FP F F P FP F F P F P FR E R = c o N N O O U 1 A W N F P O O V U 0 0 N N o O U l B A W N N H O V. CONCLUSION In Plaintiffs FAC, he has wholly failed a second time to assert any facts sufficient to support an alter ego theory as to Kim, and thus has consequently failed to plead facts sufficient to constitute any cause of action against Kim individually. A's such, the Court should sustain the demurrer to all four causes of action against Kim without leave to amend. Additionally, the FAC’s first and second causes of action are fatally deficient due to uncertainty, as well as its failure to plead facts sufficient to constitute any cause of action against any Defendant. Finally, Plaintiff’s FA C fails to plead facts sufficient to determine whether the contract all four causes of action are founded upon is oral, written, or implied by conduct as against all D efendants. Plaintiff has also failed entirely to demonstrate that any of these deficiencies can be cured by amendment. For these reasons, the Court should sustain the demurrer to each of the four causes of action alleged by Plaintiff in the FAC as against all Defendants without leave to amend. DATED: December 5, 2018 BURKHALTER KESSLER CLEMENT & GEORGE LLP By: /s/JonathanR. Stilz Daniel J. Kessler, Esq. Ros M. Lockwood, Esq. Jonathan R. Stilz, Esq. Attorneys for Defendants, David Kim and Independent Clinical Trials Consulting, LLC dba Physician Alliance R esearch Center 14 DEMURRER TO FIRST AMENDED COMPLAINT O © 0 0 ~ N O o U 1 B A W w W N D R N O N N N N N D N D N D N N F P FP F FP F F P FP F F P F P FR E R = c o N N O O U 1 A W N F P O O V U 0 0 N N o O U l B A W N N H O PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE | am employed in the County of Orange, State of California. | am over the age of 18 years and fot a party to the within action; my business address is 2020 Main Street, Suite 600, Irvine, alifornia 14. On December 5, 2018, | caused the foregoing document described as DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES to be served on the interested parties in this action [X] by placing [ ] the original [X] a true copy enclosed in a sealed envelope addressed as stated on the attached service list. [X] BYELECTRONIC TRANSMISSION [X] | sent via electronic transmission on this date a copy of the above-referenced document to the addressee stated on the attached Service List. [X] BY MAIL [ 11 deposited such envelopes in the mail at Irvine, California. The envelopes were mailed via Certified M ail - Return Receipt Requested with postage this on fully prepaid. [ X 11am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. It is deposited with U.S. postal service on that same day in the ordinary course of business. | am aware that, on motion of the 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. [X] (State) | declare under penalty of perjury under the laws of the State of California that the above is true and correct. [ 1 (Federal) | declare that | am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on December 5, 2018, at Irvine, California. /s/ Leslie Crystal Well LESLIE CRYSTAL WELL 15 PROOF OF SERVICE O © 0 0 ~ N O o U 1 BH A W w W N D R N O N N N N N N D N D N N F P FP F FP F FP F FP F F P F P F R P P c o ~ N o o u i A W w W N N F P O O V U 0 0 N N o o U l B A W w N N + H O o SERVICE LIST Maurice Edward Franklin, Esq. MAURICE EDWARD FRANKLIN LAW OFFICES Century City PO. Box 67676 Los Angeles, CA 90067 mef.law@ att.net Phone (310) 553—3351 Attorney for Plaintiff Richard C. Keech, M.D. 16 PROOF OF SERVICE