Eric H. Winston vs. Palnnet Consulting, LLC

Demurrer to Complaint

Cal. Super. - 4th Dist.September 18, 2018

© O 0 0 d N o o u r B A W w W N D R N O N N N D N D N D N N N M N N F P F P FP F FP F F P F P F P F P P = c o ~ N o o O u A W N F P O U W 0 0 N N o O U l B A W N N -M , O o ABDULLA LAW GROUP Mohammed Abdulla, SBN: 216225 600 N. Tustin Ave., Ste 130 Santa Ana, CA 92705 T:(714)544-4209 mohammed@ abdullalaw.com Attorney for D efendants SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER ERIC H. WINSTON, an individual, doing businessas E.H. WINSTON & ASSOCIATES, Plaintiff, VS. PLANNET CONSULTING, LLC, a California limited liability company; STEPHEN MIANO, an individual; and DOES 1 through 20, inclusive Defendants. Case No.: 30-2018-01019293-CU-BC-CJC Assigned to: Hon. Derek Hunt Dept.: C-23 NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES AND [PROPOSED] ORDER SUBMITTED HEREWITH [FILED AND SERVED CONCURRENTLY WITH MOTION TO STRIKE] RESERVATION NO. 72928854 Complaint Filed: September 19, 2018 Trial Date: TBD Hearing D ate: Hearing Time: Department: January 4, 2019 9:00 a.m. C-23 TO THE ABOVE-ENTITLED COURT, PLAINTIFF, AND HIS ATTORNEY OF RECORD: PLEASE TAKE NOTICE that on January 4, 2019, at 9:00 a.m., or as soon thereafter as the matter may be heard before the Honorable Derek Hunt in Department C-23 of the above 1 DEFENDANTS’ DEMURRER TO PLAINTIFF'S COMPLAINT N O 0 N N O N w n B s W N N N N N N N N N N = e m e m e m e e e e e d e e 0 N O N U n A W N N D = O o 0 N N N R E L Y - - © captioned court located at 700 Civic Center Drive West, Santa Ana, California 92701, Defendants PLANNET CONSULTING, LLC (“PlanNet™) and STEPHEN MIANO (*Miano™) (collectively, “Defendants™), will, and hereby do. demur to the Complaint filed September 19, 2018 (“Complaint™) of Plaintiff ERIC H. WINSTON (“Plaintiff” or “Winston™) pursuant to section 430.30 et seq. of the California Code of Civil Procedure (“*Demurrer”) on the following grounds: 1. Plaintiff's First Cause of Action for “Breach of Contract” fails to state facts sufficient to constitute a cause of action. 2. Plaintiff's Second Cause of Action for “Anticipatory Breach of Contract” fails to state facts sufficient to constitute a cause of action. 3. Plaintiff's Third Cause of Action for “Alter Ego Liability” fails to state facts sufficient to constitute a cause of action. This Demurrer is based on this Notice of Demurrer and Demurrer, the accompanying Memorandum of Points and Authorities. all pleadings. papers, records and documentary materials on file or deemed to be on file, any other matters of which the Court may take judicial notice, and all further evidence and arguments that may be presented in Reply to any Opposition on this Demurrer or at the Demurrer hearing. DATED: November 13, 2018 ABDULLA LAW GROUP g ss ALC Mohammed I. Abdulla Attorneyfor Defendants 5 DEFENDANTS’ DEMURRER TO PLAINTIFF'S COMPLAINT © © NN A Wn BE W N - r o r o r o r o r o r o r o r o r o - _ - - -_ - -_ - -_ - - p t Ja h - o x ~ (= ) w n + = w o r o - _ o O 0 o o ~ J a N w n EE N w o r o -_ - o O DEMURRER DEMURRER TO COMPLAINT Defendants PLANNET CONSULTING, LLC (*PlanNet”) and STEPHEN MIANO (“Miano™) hereby demur to the First, Second. and Third Causes of Action of Plaintiff's Complaint (the *Complaint™) based on the following grounds: DEMURRER TO THE FIRST CAUSE OF ACTION The First Cause of Action for Breach of Contract fails to state facts sufficient to constitute a cause of action and is incurable. (Code Civ. Proc. section 430.10(e).) Thus. Defendants’ demurrer to the first cause of action should be sustained without leave to amend. DEMURRER TO THE SECOND CAUSE OF ACTION The Second Cause of Action for Anticipatory Breach of Contract fails to state facts sufficient to constitute a cause of action and is incurable. (Code Civ. Proc. section 430.10(¢).) Thus, Defendants” demurrer to the second cause of action should be sustained without leave to amend. DEMURRER TO THE THIRD CAUSE OF ACTION The Third Cause of Action for Alter Ego Liability duty fails to state facts sufficient to constitute a cause of action and is incurable. (Code Civ. Proc. section 430.10(e).) Thus. Defendants’ demurrer to the third cause of action should be sustained without leave to amend. WHEREFORE, Defendants pray that this demurrer be sustained without leave to amend, that Plaintiff takes nothing by the Complaint and that this court enter judgment for Defendants. Dated: November 13.2018 ABDULLA LAW GROUP 0 7/74 By: / ( L C Mohammed I. Abdulla Attorneyfor Defendants ~ 3 DEFENDANTS’ DEMURRER TO PLAINTIFF'S COMPLAINT - _ - O O 0 N N O N W n B B W N r o | ] r o r o | ) r o r o r o r o - p - - p - p t p - po sh p - - f b 0 ~ A N w n A U 2 r o - o O \ O o o ~ a N w n + 2 r o - o MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff's Complaint contains three causes of action against both Defendants for claims that arise out of an illegal and unenforceable written Consulting Services Agreement (the “Alleged Agreement”), inclusive ofits two purported amendments (the “Amendments™), and is otherwise insufficiently pled as a matter of law. Even more fundamentally, Plaintiff - who brings his complaint (the “Complaint™) as “ERIC H. WINSTON, an individual doing business as E.H. WINSTON & ASSOCIATES”- is not even a party to the written contract upon which his Complaint is based. In this regard, the Alleged Agreement,inclusive of each of the two purported Amendments, was entered into and executed by the entity “E.H. Winston & Associates,” by and through its president Eric H. Winston. As set forth below. E.H. Winston & Associates is not even licensed in any capacity that would allow it to collect thefees Plaintiff believes he is owed. In fact. Plaintiff himself also is not licensed in any such capacity. and it is a criminal act for him to even attempt to collect such fees. Additionally, Plaintiff wrongfully brings suit against defendant Miano, purportedly based on the “alter ego liability” cause of action, which is not a recognized cause of action in California, and is entirely without merit even when the alleged facts are deemed true. For these reasons. which are more fully explained below. Defendants’ Demurrer to the Complaint should be sustained in its entirety. without leave to amend. II. ARGUMENT A. LEGAL STANDARD The function of a demurer is to test the sufficiency of the allegations of the complaint. (Code Civ. Proc.. § 589: Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) A demurrer is appropriate where the complaint “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (¢).) A court is to “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal.3d 311. 318.) A demurrer can be utilized where the complaintitself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. 4 DEFENDANTS DEMURRER TO PLAINTIFF'S COMPLAINT O O 0 9 O N W n B s W O N = - _ - - O o ~ a N w n L o r o - S O o o ~ N D w h A L o r o r o o o Superior Court (2001) 94 Cal.App.4th 963. 971-72. A court mayconsider, as grounds for demurrer, any matter which is judicially noticeable under Evidence Code §§ 451 or 452. (Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1750.) Importantly here. while a demurrer admits all material facts properly pleaded. it does not admit contentions, deductions or conclusions of law. (4dmid v. Hawthorne Community Medical Group, Inc. (1989) 212 Cal.App.3d 1383, 1387.) Indeed. the requirements to plead sufficient and specific facts cannot be met by pleading conclusions of law. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) Despite the often invoked liberal pleading standard, a plaintiff must plead “the essential facts of his case with reasonable precision and with sufficient clarity and particularity, so that the defendants may be appraised of the nature, source and extent of the cause of action.” (Metzenbaum v. Metzenbaum(1948) 86 Cal.App.2d. 750.753.) As such, leave to amend should only be granted where plaintiff demonstrates how the complaint can be amended to change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d. 335. 349.) For the reasons set forth below, this Demurrer must be sustained without leave, and Plaintiff's complaint must be dismissed with prejudice. B. PLAINTIFF'S FIRST AND SECOND CAUSES OF ACTION FOR BREACH AND ANTICIPATORY BREACH OF CONTRACT FAIL BECAUSE THE ALLEGED AGREEMENT IS ILLEGAL, AND PLAINTIFF IS NOT EVEN A PARTY TO THE ALLEGED AGREEMENT 1. The Alleged Agreement Contains an Illegal Purpose Because Plaintiff Was Not Properly Licensed to Enter Into or Perform any Professional Services Under the Alleged Agreement a. Plaintiff Does Not Hold a Real Estate Broker’s License California Business and Professions Code (“BPC™) Section 10130 provides, “[i]t is unlawful for any person to engage in the business of, act in the capacity of, advertise as, or assume to act as a real estate broker or a real estate salesperson within this state without first obtaining a real estate license from the department . . . .” Section 10131 of the BPC defines a “real estate broker” as one who, among other things, “[s]olicits borrowers or lenders for or negotiates loans or collects 5 DEFENDANTS’ DEMURRER TO PLAINTIFF'S COMPLAINT _ - O O 0 N N O N W n B E W N M Y M N N N N N N D D = e m e m p e e e e e e e e e e e 0 0 N N O O W n A W N = S O N O N N E W N D - = O o payments or performs services for borrowers or lenders or note owners in connection with loans secured directly or collaterally by liens on real property or on a business opportunity.” (Bus. & Prof. Code § 10131 er seq.) Section 10136 further provides, “[n]o person engaged in the business or acting in the capacity of a real estate broker . . . within this state shall bring or maintain any action in the courts of this state for the collection of compensation for the performance of any of the acts mentioned in this article without alleging and proving that he or she was a dulylicensed real estate broker . . . at the time the alleged cause of action arose.” (Bus. & Prof. Code § 10136: Shaffer v. Beinhorn (1923) 190 Cal 569: Haas v. Greenwald (1925) 196 Cal 236 (affirmed in Haas v. Greenwald (1927) 275 US 490, in which the constitutionality ofthe statute involved was upheld). In GreenLake Capital, LLC v. Bingo Investments, LLC (2010) 185 Cal.App.4th. 733, 739, the court held that if an agreement contracts an unlicensed individual or entity for services of a real estate broker, the contract necessarily has as its “central purpose” the provision of illegal services, which violates Section 10130 of the BPC, and thus bars any recovery offees for services for which a real estate license is required. (Bus. & Prof. Code § 10130.) Here. Article 1.2 of the Alleged Agreementcalls for Plaintiff's “introduction of a Prospective Lender” for the purpose of negotiating a commercial loan agreement providing a central purpose of real estate broker services. (Complaint, Ex. A at 1.) Plaintiff cannot reasonably contend that he did not “negotiate loans™ or “perform services” for PlanNet in connection with procuring secured loans for PlanNet. In fact, this entire lawsuit seeks recovery for these purported services. [Complaint, para. 10-12, 18-20.] “The business of a mortgage loan brokeris to solicit borrowers and lenders for loans secured directly or collaterally by liens on real property. Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773.782. This is precisely what Plaintiff purports to have done. On demurrer, courts rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits. (George v. Automobile Club of Southern Calif. (2011) 201 Cal.App.4th 1112, 1130.) Here, Article 1.1 of Exhibit A to the Complaint provides: “For.. compensation. .., Consultant agrees to use its best efforts to provide financial restructuring support to Company resulting in the identification of an Initial Introduction (The “Introduction(s)”) of prospective institutional lenders... who may agree and contract in writing with the Company to 1) 6 DEFENDANTS' DEMURRER TO PLAINTIFF'S COMPLAINT O O 0 N N O N n n B s W N P o p e t _ - O O r o r o 9 r o r o 3 ] 1 r o r o -_ - - -_ - - -_ - - - - o o ~ A N w n E S w o r o p t o S O o o o ~ R N w n + w o r o the establishment of a new banking relationship with a “full service commercial bank” or commercial lender, 2) the establishment of a new “operating line of credit” to support the current Company growth and 3) the payoff and terming out of Company’s existing operating line of credit and bank debt or portion thereof...” (Complaint, Ex. A, emphasis added.) Additionally, Plaintiff in his own declaration filed in support of his Ex Parte Application for Pre- Judgment Writ of Attachment confirms his unlicensed and illegal actions. To wit: “I was engaged by Miano and PlanNet to source a new banking relationship for the Companythat could provide a term loan for paying off the monies owed Opus Bank along with a new operating line ofcredit and whatever other financial commitment a prospective institutional lender would offer.” (RIN, Ex. 2,9.) ok ok “For the next three plus weeks. I contacted bankers on behalf of PlanNet while sharing the Financial Package and answering requests for information and questions form those Prospective Lenders that had an interest in the credit opportunity and the proposed relationship with PlanNet.” (RIN, Ex. 2,99.) * kk “All were part of my Prospective Lenders group and were contacted on my part to try to source a new banking and credit relationship for PlanNet...” (RIN, Ex. 2.910.) wok “Since Miano’s execution of the Second Amendment to the Consulting Agreement on June 19, 2018, I had been speaking with the Special Assets Department at Opus Bank on a daily basis to secure a Loan Modification Agreement that would go into effect on August 1, 2018. Through daily efforts including multiple conversations each day, I was finally able to secure the Opus Bank Loan Modification Agreement that was executed by the parties on - DEFENDANTS’ DEMURRER TO PLAINTIFF'S COMPLAINT O O 0 N N O N W n B E W N I Y M N M N N N 0 M N P N = m m e m e m e e e e e e e e ee d e e 0 N N O N w n E s W N = O O C N Y n N E W N N - = O O July 30, 2018.” (RIN, Ex. 2,913.) * kK “On August 23, 2018, as the “spokesman” for PlanNet. I obtained a Pay-Off Demand from Opus Bank that was presented first to Harrod and then upon his direction presented to Pacific Mercantile Bank.” (RIN, Ex. 2,914.) Similar statements were made by Plaintiff again in another declaration filed in support ofhis Ex Parte Application for Additional Writ of Attachment. (See, RIN, Ex. 3.) Plain and simple, because Plaintiff has never been a licensed real estate broker, his purported services violate section 10130 of the BPC. (RIN, Ex. 1.) Plaintiff's characterization of the fees he purports to be owed as “consulting” fees - even iftrue - is irrelevant pursuant to Greenlake Capital because the Alleged Agreement here clearly has a “central purpose™ for the provision of illegal brokering services. (Complaint, Ex. 1 at 1: Greenlake Capital, supra, 185 Cal.App.4th 733, 739.) As such, Plaintiff's attempt to bring any action in the courts ofthis state for compensation for the performance of any acts as a real estate broker pursuant to the Alleged Agreementis barred by section 10136 of the BPC. It is in fact a crime for Plaintiff to even attempt to collect any such fees through this lawsuit. (Bus. & Prof. Code § 10130.) As such, Plaintiff's purported services cannot be compensated. Accordingly. Plaintiff cannot maintain his claims for breach and anticipatory breach of contract against Defendants because the Alleged Agreementis unenforceable. Thus, Plaintiff's first and second causes of action fail and must be dismissed without leave to amend. b. Neither Does Plaintiff Hold a California Finance Lenders License The California Finance Lenders (“CFL™) Law, provided for in California Finance Code Sections 22000-780, governs lenders and brokers engaged in the business of making or negotiating consumer or commercial loans. A commercial loan is “a loan of a principal amount of five thousand dollars ($5.000) or more, . . . which [is] intended by the borrower for use primarily for other than personal, family. or household purposes.” (Fin. Code, § 22502.) CFL Law defines a “broker” as “any 8 DEFENDANTS' DEMURRER TO PLAINTIFF'S COMPLAINT L C 0 0 N N S N U n B B W O N r o 9 r o r o r o r o r o r o r o - - _ - -_ - -_ - p t p t p - - p - o o ~ J a N w n + w o r o - _ o O O o o o ~ J a N w n = w w r o -_ - o o person who is engaged in the business of negotiating or performing any act as broker in connection with loans made by a finance lender.” (Fin. Code, § 22004.) Further, CFL prohibits any person from “engag[ing] in the business of a finance lender or broker in California without obtaining a [CFL] license from the [California Commissioner of Business Oversight].” (Fin. Code, § 22100.) Accordingly, “[a] contract whose object is a violation of law is itself against the policy of the law and renders the bargain unenforceable” (Baccouche v. Blankenship (2007) 154 Cal.App.4th. 1551, 1558.) Here, because Articles 1.1 and 1.2 of the Alleged Agreementstates the services provided for therein involve Plaintiff's “introduction of a Prospective Lender” for the purposes of negotiating a commercial loan agreement in exchange for fees (Complaint, Ex. A), Plaintiff has violated Section 22100 ofthe statute for contracting to engage in the business of a broker for compensation without obtaining a proper CFL license. (See Fin. Code, § 22100 (“No person shall engage in the business of a finance lender or broker without obtaining a license from the commissioner.”): see also Brack v. Omni Loan Co., Ltd. (2008) 164 Cal.App.4th 1312, 1327 (“[T]he Legislature . . . in voiding contracts made in violation ofthe Finance Lenders Law and in creating a licensing scheme through which it directly regulates the finance lenders market. has made it clear that the Finance Lenders Law is a matter of significant importance to the state . . ..”), italics and bold added.) (See also, RIN, Ex. 2 and 3.) This makes the Alleged Agreement entirely unenforceable. (Baccouche, supra, 154 Cal.App.4th. 1551, 1558.) In fact, CFL Lawaside. any contract with an illegal purpose is not recognized in California. (Ibid.) Therefore, because the Alleged Agreement is unenforceable, Plaintiff's first and second causes of action fail on the most fundamental element, to wit, the existence of a valid contract. 2; Plaintiff Lacks Standing to Sue for Breach of the Alleged Agreement Because Plaintiff is not a Party to the Alleged Agreement It is well settled that every complaint must be brought in the name of the real party in interest. (See General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 590.) Particularly 9 DEFENDANTS® DEMURRER TO PLAINTIFF'S COMPLAINT O O 0 N N O N w n R B W N P O N N N N N Y R N N D m = e m e e e e e e e e e e e e e e 0 0 N N O N w n B A W N N = O o V O N N N E W N D = O in contract-based complaints, only the contracting parties have standing to sue on anyclaim arising out ofthe contract. (See Christensen v. Superior Court (1991) 54 Cal.3d 868.) Here, “E.H Winston & Associates,” by and through its president Eric H. Winston, entered into the Alleged Agreement with Defendants. (Complaint, Ex. A at 1, 5.) Conversely, the Plaintiff herein is Eric H. Winston, an individual, who purports to bring this action on his own behalf under his own fictitious business name. (Complaint at 1; see also Pinkerton’s, Inc. v. Superior Court (1996) 49 Cal.App. 1342. 1348 (“Use ofa fictitious business name does not create a separate legal entity.”).) Thus, the contract which forms the basis of Plaintiff's entire Complaint was entered into by an entity that is not even a party to this action. (/bid.) Accordingly and even more fundamentally than the illegality of the subject contract, Plaintiff does not have standing to prosecute this action or bring this Complaint. For this reason alone. the entire Complaintfails, and it necessarily follows that this Demurrer be sustained asto the first and second causes of action without leave to amend. C. PLAINTIFF'S THIRD CAUSE OF ACTION FOR “ALTER EGO LIABILITY” IS NOT EVEN RECOGNIZED IN CALIFORNIA, AND PLAINTIFF HAS OTHERWISE FAILED TO SUFFICIENTLY ALLEGE FACTS FOR SUCH A CLAIM, WARRANTING MIANO’S DISMISSAL It is well settled in California that a cause of action for “alter ego liability” does not exist: “A claim against a defendant, based on the alter ego theory, is not itself a claim for substantive relief, e.g., breach of contract ..., but rather, procedural,i.e., to disregard the corporate entityas a distinct defendant and to hold the alter ego individuals liable on the obligations of the corporation where the corporate form is being used by the individuals to escape personalliability, sanction a fraud, or promote injustice.” Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 516: Hennessey's Tavern, Inc. v. American Air Filter Co. (1988) 204 Cal.App.3d 1351, 1359; see Katzir's Floor and Home Design v. M- MLS.com (2004) 394 F.3d 1143. 1150 [proposed judgment debtor not added pursuant to section 187, in part because he was not a named party in underlying suit]. The only conceivable basis upon which 10 DEFENDANTS® DEMURRER TO PLAINTIFF'S COMPLAINT - O O 0 N N O N W n B s W N [= ] r o r o r o r o r o r o r o r o - -_ - - - - J E p - - - f b o o ~ a w n + w l r o -_ - o O O o o o ~ a N w n = [9 %] r o -_ - o S Plaintiff purports to bring suit against Miano is not recognizable in California. Accordingly, Miano must be dismissed without further inquiry. In addition, Plaintiff alleges without substantiation, “Defendant Miano by reason of his alleged actions or omissions to act as to the operation. governance and business of PCLLC is, and at all relevant times was. the alter ego of Defendants PCLLC.” (Complaint at 15:20-21.) To establish alter ego liability in California. a plaintiff must allege the following conditions: (1) such a unity of interest and ownership between the corporation and the equitable owner that no separation actually exists, and (2) an inequitable result if the acts in question are treated as those of the corporations alone.” (Leek v. Cooper (2011) 194 Cal.App.4th 399, 417.) The allegation that a corporation is the alter ego of an individual is “insufficient to justify the court in disregarding the corporate entity in the absence of allegations of facts from which it appears that justice cannot otherwise be accomplished.” (Norins Realty Co. v. Consolidated Abstract & Title Guaranty Co. (1947) 80 Cal.App.2d 879, 883: Automotriz etc. De California v. Resnick (1957) 47 Cal.2d 792, 796: Hennessey's Tavern, Inc. v. American Air Filter Co. (1988) 204 Cal.App.3d 1351, 1358: Alberto v. Diversified Group, Inc. (1995) 55 F.3d 201, 205: Calvert v. Huckins (1995), 875 F.Supp. 674, 678.) Moreover, “alter ego will not be applied absent evidence that an injustice would result from the recognition of separate corporate identities, and °[d]ifficulty in enforcing a judgment or collecting a debt does not satisfy this standard.” ™ VirtualMagic Asia, Inc. v. Fil-Cartoons, Inc. (2009) 99 Cal.App.4th 228. 245, quoting Sonora Diamond Corp., 83 Cal.App.4th at 539); Mid- Century Ins. Co. v. Gardner (1992) 9 Cal.App.4th 1205, 1213 (** “Certainly,it is not sufficient to merely showthat a creditor will remain unsatisfied if the corporate veil is not pierced.” and thus set up such an unhappy circumstance as proof of an ‘inequitable result.” In almost every instance where a plaintiff has attempted to invoke the doctrine he is an unsatisfied creditor,” quoting Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825. 842). Here, even if Plaintiff could allege a cause of action for “alter ego liability,” the Complaints conclusory, boilerplate statements do not suffice to provide any factual support to sustain such a claim. (See Complaint, § 6.) Moreover, pursuant to the foregoing authority, any purported concerns regarding collectability of an ultimate judgment (which would be wholly improper) against PlanNet 11 DEFENDANTS’ DEMURRER TO PLAINTIFF'S COMPLAINT O O 0 N N O N n n B s W N N O N N N N D N N N N m m e s e m e m e m e e e e e e e e 0 N O U n A W N = O O V v N N N E W N ~ ~ O O are not justification for a finding of alter ego liability, much less reason to allow such a cause of action to proceed.! As such, Plaintiff's allegations under the third cause of action - even if they could be brought under California law - fail to even begin to state a sufficient claim for alter ego liability. Thus. the Court must sustain Defendants’ Demurrer as to the third cause of action without leave to amend. D. CONCLUSION For the foregoing reasons, Defendant respectfully requests that the Court sustain its Demurrer to the Complaint’s First, Second, and Third Causes ofAction, without leave to amend. DATED: November 13. 2018 ABDULLA LAW GROUP By: /.U’ (L~£ Mohammed 1. Abdulla Attorneyfor Defendants I This is particularly true in this case since, Plaintiff currently has an attachment order over a specifically earmarked bank account that this Court has ruled is sufficient to protect any potential recovery he hopesto obtain in this action. 12 DEFENDANTS’ DEMURRER TO PLAINTIFF'S COMPLAINT O O 0 N N O N n n R A W N P Y m = e e e e e t e d e d e d e d e d S S O O 0 N N O N U n E W N = C O r o r o r o r o r o 3% ) r o ~ a N w n + = W J r o p t 9 = ] the within action. My business address is 600 N. Tustin Ave., Suite 130, Santa Ana, CA 92705. On PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to November 13, 2018, I served the following document(s) by the method indicated below: [DEFENDANTS’ DEMURRER TO PLAINTIFF'S COMPLAINT; DECLARATION OF MOHAMMED ABDULLA, ESQ.] by transmitting via facsimile on this date the document(s) listed aboveto the fax number(s) set forth below. The transmission was completed before 5:00 p.m. and was reported complete and without error. Service by fax was ordered by the Court. The transmitting fax machine complies with Cal.R.Ct 2.301(3). by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Irvine, California addressed as set forth below. I am readily familiar with the firm's practice of collection and processing of correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. by placing the document(s) listed above in a sealed envelope(s) and by causing personal delivery of the envelope(s) to the person(s) at the address(es) set forth below. by having the document(s) listed above hand-delivered to the person(s) at the address(es) set forth below. by placing the document(s) listed above in a sealed envelope(s) and consigning it to an express mail service for guaranteed delivery on the next business to the address(es) set forth below. X by emailing the document(s) listed above to the person(s) at the address(es) set forthbelow. Robert J. Feldhake, Esq. [SBN 107380] [RFeldhake@far-law.com] Joseph K. Jeffrey, Esq. [SBN 294147] [JJeffrey@far-law.com] THE FELDHAKE LAW FIRM, apc 650 Town Center Drive, Suite 1590 Costa Mesa, California 92696 Telephone No. (714) 352-8230 Facsimile No. (714) 352-8270 I declare under penalty of perjury under the laws of the State of California that the above istrue and correct. Executed on November 13. 2018. at Irvine, California. oai” -Mohammed Abdulla 1 PROOF OF SERVICE