Demurrer To Amended ComplaintDemurrerCal. Super. - 4th Dist.September 18, 2018OO 0 NN O N wn Es W D P Y B D = e e e d e t e d ee p d e e -_ O O OO 0 0 NN O N wn E W N N --= O O 22 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 Defendants ELECTROMICALLY FILED Superior Court of California, County of Orange 01/23/2019 at 08:01:00 FM Clerk of the Superior Court By Jeannette Dowling. Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER ERIC H. WINSTON, an individual, doing business as 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 PLAINTIFF'S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES AND [PROPOSED] ORDER SUBMITTED HEREWITH [FILED AND SERVED CONCURRENTLY WITH MOTION TO STRIKE AND REQUEST FOR JUDICIAL NOTICE] Complaint Filed: September 18,2018 Trial Date: TBD RESERVATION #72971188 Hearing Date: March 1, 2019 Hearing Time: ~~ 9:00 a.m. Department: C-23 TO THE ABOVE-ENTITLED COURT, PLAINTIFF, AND HIS ATTORNEY OF RECORD: 1 DEFENDANTS' DEMURRER TO PLAINTIFF'S FAC ro © 0 NN O N wn Bs Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLEASE TAKE NOTICE that at 9:00 a.m., on March 1, 2019, or as soon thereafter as the matter may be heard before the Honorable Derek Hunt in Department C-23 of the above 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 First Amended Complaint filed December 19, 2018, (“FAC”) 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: L, 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 “Unjust Enrichment Based on Estoppel™ fails to state facts sufficient to constitute a cause of action. 3. Plaintiff's Third Cause of Action for “Quantum Meruit™ fails to state facts sufficient to constitute a cause of action. 4. Plaintiff's Fourth Cause of Action for “Declaratory Relief” 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: January 23. 2019 ABDULLA LAW GROUP fo Ua Mohammed I. Abdulla Attorney for Defendants DEFENDANTS DEMURRER TO PLAINTIFF'S FAC OO 0 NN O&O wn Es W Y = oo N O N Wn = Ww bb S O o o ~N wn = Ww W r o -- Oo DEMURRER DEMURRER TO FIRST AMENDED COMPLAINT Defendants PLANNET CONSULTING, LLC (*PlanNet”) and STEPHEN MIANO (*Miano™) hereby demur to the First, Second. Third and Fourth Causes of Action of Plaintiff's First Amended Complaint (the “FAC™) 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 Unjust Enrichment Based on Estoppel 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 second cause of action should be sustained without leave to amend. DEMURRER TO THE THIRD CAUSE OF ACTION The Third Cause of Action for Quantum Meruit 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. DEMURRER TO THE FOURTH CAUSE OF ACTION The Third Cause of Action for Declaratory Relief 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 FAC and that this court enter judgment for Defendants. Dated: January 23, 2019 ABDULLA LAW GROUP By: \ U | LL nN’ Mohammed I. Abdulla Attorney for Defendants ~ 3 DEFENDANTS® DEMURRER TO PLAINTIFF'S FAC OO 00 N N O N Wn B A W ND r o r o ro r o r o r o r o r o N D - - - - - f d - [o u g h a oo ~ aN wn 4 wo r o _ Oo Oo o o ~ aN wn + wl No - o MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On or about September 19, 2018, Plaintiff filed a Complaint against Defendants alleging three causes of action for claims that arise out of an illegal and unenforceable written Consulting Services Agreement (the “Alleged Agreement”). inclusive of its two purported amendments (the “*Amendments™). On or about November 15, 2018, Defendants filed a Demurrer in response. On or about November 1, 2018, the date Plaintiff's opposition brief was due, Plaintiff apparently agreed with Defendants” arguments that the Complaint failed to state facts sufficient to constitute causes of action and instead filed an amended Complaint (the “FAC™). Plaintiff's FAC now contains four causes of action against both Defendants for claims that arise out of the same illegal and unenforceable Alleged Agreement. as amended. and remains otherwise insufficiently pled as a matter of law. Notably missing from Plaintiff’s amended allegations is any assertion that Plaintiff was licensed in any capacity to perform the services he performed under the Alleged Agreement. Even more fundamentally, Plaintiff - who brings his First Amended 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 FAC 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 licensed in any capacity that would allow it to collect the fees 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” theory 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 FAC should be sustained in its entirety, without leave to amend. 4 DEFENDANTS’ DEMURRER TO PLAINTIFF'S FAC N O N N N N D N N N N N D = p p e m e d e l e d e m e m 0 NN O O Wn BE W N = © VO ® N O N n e W N = O II. ARGUMENT A. LEGAL STANDARD The function of a demurer is to test the sufficiency of the allegations of the FAC. (Code Civ. Proc., § 589: Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) A demurrer is appropriate where the FAC “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 FAC itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72. A court may consider, 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. (4mid 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 FAC 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 FAC must be dismissed with prejudice. 5 DEFENDANTS® DEMURRER TO PLAINTIFF'S FAC wm A W N Oo 00 NN 10 11 12 13 14 15 16 17 18 19 20 22 23 24 25 26 27 28 B. PLAINTIFF'S FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT FAILS 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 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 ef 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 duly licensed 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 of the 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 of fees for services for which a real estate license is required. (Bus. & Prof. Code § 10130.) Here, Article 1.2 of the Alleged Agreement calls for Plaintiff's “introduction of a Prospective Lender” for the purpose of negotiating a commercial loan agreement providing a central purpose of 6 DEFENDANTS’ DEMURRER TO PLAINTIFF'S FAC NO 0 NN O N Wn B W L D r o r o 9 r o r o r o r o r o ro - -_- - - - - p- =n p- p- o o ~ [o )) wn + “2 r o - oO \O c e ~ aN wn A wo r o - o real estate broker services. (FAC, 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. [FAC, para. 9-12, 18-20.] “The business of a mortgage loan broker is 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 yet nowhere in the FAC does Plaintiff contend he was licensed to perform such services. 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 FAC 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) 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...” (FAC, 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: “] was engaged by Miano and PlanNet to source a new banking relationship for the Company that could provide a term loan for paying off the monies owed Opus Bank along with a new operating line of credit and whatever other financial commitment a prospective institutional lender would offer.” (RIN, Ex. 2,9.) A ok Kk “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 7 DEFENDANTS DEMURRER TO PLAINTIFF'S FAC - OO 0 NN O N Un Bs W N N N N N N N N N N e e e e e e e m e e e e e s 0 N O Wn B A W N N D = © OV N N N E W N = OO opportunity and the proposed relationship with PlanNet.” (RIN, Ex. 2,99.) % % %k “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.) *okk “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. | was finally able to secure the Opus Bank Loan Modification Agreement that was executed by the parties on July 30, 2018.” (RIN, Ex. 2,713.) kx “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.) Plain and simple, because Plaintiff has never been a licensed real estate broker, and because the FAC is devoid of any allegations in this regard, 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 if true - is irrelevant pursuant to Greenlake Capital because the Alleged Agreement here clearly has a “central purpose” for the provision of illegal brokering services. (FAC, 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 of this state for compensation for the performance of any acts as a real estate broker pursuant to the Alleged Agreement is barred by 8 DEFENDANTS® DEMURRER TO PLAINTIFF'S FAC O 0 ~ N O&O Wn bs W N N O N E N D B N N s = EE ge e s E s E s e e ® -- O A th AE WL W N = © WV N O Wn Bs W N = O 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.) Thus, Plaintiff's purported services cannot be compensated. Accordingly, Plaintiff cannot maintain his claims for breach of contract against Defendants because the Alleged Agreement is unenforceable. Thus, Plaintiff's first claim fails 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 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 Agreement states 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 (FAC, Ex. A), and because the FAC is devoid of any allegations that Plaintiff held a CFL license, Plaintiff has violated Section 22100 of the 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., Lid. (2008) 164 Cal. App.4th 1312, 1327 (“[T]he Legislature . . . in voiding contracts made in violation of the Finance Lenders Law and in creating a licensing scheme through which it directly regulates 9 DEFENDANTS' DEMURRER TO PLAINTIFF'S FAC OO 00 NN O N wn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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.) This makes the Alleged Agreement entirely unenforceable. (Baccouche, supra, 154 Cal. App.4th. 1551, 1558.) In fact, CFL Law aside, any contract with an illegal purpose is not recognized in California. (Ibid.) Therefore. because the Alleged Agreement is unenforceable, Plaintiff's first cause of action fails 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 FAC 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 in contract-based FACs, only the contracting parties have standing to sue on any claim arising out of the 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. (FAC, 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. (FAC at 1: see also Pinkerton’s, Inc. v. Superior Court (1996) 49 Cal. App. 1342, 1348 (“Use of a fictitious business name does not create a separate legal entity.”).) Thus, the contract which forms the basis of Plaintiff's entire FAC 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 FAC. For this reason alone, the entire FAC fails, and it necessarily follows that this Demurrer be sustained as to the first cause of action without leave to amend. C. PLAINTIFF'S SECOND CAUSE OF ACTION FOR “UNJUST ENRICHMENT BASED ON ESTOPPEL” IS NOT EVEN RECOGNIZED IN CALIFORNIA, AND PLAINTIFF HAS OTHERWISE FAILED TO SUFFICIENTLY ALLEGE FACTS FOR SUCH A CLAIM, WARRANTING DISMISSAL 10 DEFENDANTS® DEMURRER TO PLAINTIFF'S FAC OO 0 JN O N Wn BH W N = N O N N N N N N D ND D N D N = e m e m e s e e e e e s e e e e 0 ~ N O O Wn A W N = O Vv N n E W N = OO “In California, unjust enrichment is ‘not a cause of action ... or even a remedy, but rather a general principle. underlying various legal doctrines and remedies. It is synonymous with restitution.” McBride v. Boughton, 123 Cal.App.4th 379, 387, 20 Cal.Rptr.3d 115 (2004). Thus, a claim for unjust enrichment/restitution is properly pled as a claim for a contract implied-in-law. It “does not lie when an enforceable, binding agreement exists defining the rights of the parties.’ Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 96 F.3d 1151, 1167 (9th Cir.1996). California does, however, recognize an exception to the rule that unjust enrichment exists only when an enforceable contract does not: ‘Restitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but it was procured by fraud or is unenforceable or ineffective for some reason.” McBride, 123 Cal.App.4th at 388. 20 Cal.Rptr.3d 115.” Parino v. Bidrack, Inc. (2011) 838 F.Supp.2d 900, 908. Here. in order to sustain its unjust enrichment claim, Plaintiff must allege that an express contract between the parties was unenforceable or ineffective for some reason. The FAC is devoid of any such allegations. Instead. the FAC purports to allege only that a written contract exists. (FAC 9, 32) In such cases, a separate cause of action for unjust enrichment cannot lie. McBride, 123 Cal.App.4th at 387; Paracor Fin. Inc. 96 F.3d at 1167. Accordingly, Plaintiff’s second claim for unjust enrichment fails and this Demurrer must be sustained as to the second cause of action without leave to amend. D. PLAINTIFF'S THIRD CAUSE OF ACTION FOR “QUANTUM MERUIT” IS NOT AVAILABLE WHEN THE RIGHTS PURPORT TO ARISE OUT OF AN ILLEGAL CONTRACT “When services are rendered under a contract that is unenforceable as against public policy, but the subject services are not themselves prohibited. quantum meruit may be allowed. (Huskinson & Brown v. Wolf (2004) 32 Cal.4th 453, 463, 9 Cal.Rptr.3d 693, 84 P.3d 379: see also Lawn v. Camino Heights, Inc. (1971) 15 Cal. App.3d 973, 980-983, 93 Cal.Rptr. 621: Trumbo v. Bank of Berkeley (1947) 77 Cal.App.2d 704. 708-711, 176 P2d 376.) Selten V. Hyon (2007) 152 Cal. App.4th 463, 472. When the contract is against the express prohibition of the law, “courts will 11 DEFENDANTS" DEMURRER TO PLAINTIFF'S FAC - OO © NN O N nm Bs W N N O N N N ND ND NN N N = e m e s e e e e e e e e 0 uN O O Wn BA W N = O O VV © N n Bs WwW N = OO not entertain any rights growing out of [an illegal contract] or permit a recovery upon quantum meruit or quantum valebat.” Finnegan v. Schrader (2001) 91 Cal. App. 4th 572, 583. As has been made abundantly clear herein, the subject services are themselves prohibited by law. Plaintiff negotiated loans and performed services for PlanNet in connection with procuring loans secured directly or collaterally by liens on real property or on a business opportunity without obtaining a brokers license and now seeks compensation for such illegal activity in violation of Bus. & Prof. Code §10130. Plaintiff also introduced prospective lenders for the purposes of negotiating a commercial loan agreement in exchange for fees with obtaining a loan broker's license and now seeks compensation for such illegal activity in violation of Fin. Code §22100. The central purpose of the Alleged Agreement is the provision of illegal services and is unenforceable as a matter of public policy and law. Greenlake Capital, supra, 185 Cal.App.4th 733. 739: Baccouche, supra, 154 Cal. App.4th. 1551, 1558. Under these circumstances, Plaintiff cannot seek an equitable recovery upon quantum meruit for its unlawful activity. Finnegan, 91 Cal.App.4th, 583. Thus, the Court must sustain Defendants’ Demurrer as to the third cause of action without leave to amend. E. PLAINTIFF'S FOURTH CAUSE OF ACTION FOR “DECLARATORY RELIEF” IS SUPERFLUOUS AND MUST ALSO BE DISMISSED The declaratory relief claim is deficient because it duplicates the other causes of action. When issues involved in a declaratory relief claim are already “fully engaged by other causes of action.” declaratory relief is “unnecessary and superfluous.” Hood v. Superior Court (1995) 33 Cal.App.4th 319, 324 (summary judgment improper on declaratory relief cause of action which was duplicative of other causes of action). “The declaratory relief statute should not be used for the purpose of anticipating and determining an issue which can be determined in the main action. The object of the statute is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues.” /d. Here. Plaintiff's declaratory relief claim on its face is nothing more than a duplication of claims which are the subject of the first, second and third causes of action in his operative complaint. In this regard, several new paragraphs are added to the First Amended Complaint to attempt to expand Plaintiff's compensation claim to include the loan to Redhill Partners, which then serve as 12 DEFENDANTS® DEMURRER TO PLAINTIFF'S FAC OO 0 NN NN n n BE W N 1 O N B O N N N KE N K N == e s e s m b pe a f s : e d E l = 0 ~N O O Wn BA W N = O O V V ® N O Wn RAE W N = OO the basis for the relief requested in each of the first, second and third causes of action. (See FAC 20-25.) As such, Plaintiff is manufacturing a cause of action that has no independent significance outside of the other causes of action. There is simply no legal basis for Plaintiff to bring such a claim, and his attempt to do so is a transparent effort to feign some basis of legal viability to an otherwise unsustainable case. He should not be given a chance to maintain this case at Defendants’ expense through alternative pleading allegations that state absolutely nothing different from what has already been alleged in the prior claims. F. LEAVE TO AMEND SHOULD NOT BE GRANTED Plaintiff has attempted now twice to bring forth a viable complaint. As demonstrated above, Plaintiff has failed now twice to do so. The defects on the face of the FAC are apparent and cannot be cured. Accordingly, Plaintiff should not be afforded any further opportunity to amend. III. CONCLUSION For the foregoing reasons, Defendant respectfully requests that the Court sustain its Demurrer to the FAC's First. Second. Third and Fourth Causes of Action, without leave to amend. DATED: January 23, 2019 ABDULLA LAW GROUP 5% A GUA Mohammed I. Abdulla Attorney for Defendants 13 DEFENDANTS DEMURRER TO PLAINTIFF'S FAC OO 0 NN O N wn HA W N = O N N N N N N N N e e e e e e e m e e e s e e e e 00 ~N O N Wn bE W N = © V0 N N Wn E W NN ~~ OO PROOF OF SERVICE [ am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is 600 N. Tustin Ave., Suite 130, Santa Ana, CA 92705. On January 23, 2019, I served the following document(s) by the method indicated below: DEFENDANTS’ DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT; DECLARATION OF MOHAMMED ABDULLA, ESQ. by transmitting via facsimile on this date the document(s) listed above to 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). X 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 forth below. Robert J. Feldhake, Esq. [SBN 107380] [RFeldhake/a@ far-law.com] Joseph K. Jeffrey, Esq. [SBN 294147] [Jleffrey@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 is true and correct. Executed on January 23, 2019, at Irvine, California. pf LA Ne 1 PROOF OF SERVICE