Eric H. Winston vs. Palnnet Consulting, LLC

Motion to Strike

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

O O 0 N N O N W n s s WL W N D = r o r o r o r o r o r o r o r o r o - - - - p t p t - p t p o p d o o ~ A N w n + w a r o -_ - o O O o [= ] ~ a N w n + w o r 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 Attorneyfor Defendants 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.: 30-3018-01019293-CU-BC-CIJC Assigned to: Hon. Derek Hunt Dept.: C-23 NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFF'S COMPLAINT, OR CERTAIN PORTIONS THEREOF; MEMORANDUM OF POINTS AND AUTHORITIES [FILED AND SERVED CONCURRENTLY WITH NOTICE OF DEMURRER AND DEMURRER] RESERVATION NO. 72928855 Complaint Filed: September 19, 2018 Trial Date: TBD Hearing Date: 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 NOTICEthat on January4, 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 captioned court located at 700 Civic Center Drive West, Santa Ana, California 92701, Defendants PLANNET CONSULTING, LLC (“PlanNet™) and STEPHEN MIANO (*Miano”) (collectively, NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT © O O N Y n n B A W N = P Y = e e e e e e e d e d e e d e d e e S S O O X X N N N N n n B W N D “Defendants™), will, and hereby do, move pursuant to Code of Civil Procedure Sections 435437 for an order striking the entire Complaint (“Complaint”) filed by Plaintiff Eric H Winston's (“Plaintiff” or “Winston™) or in the alternative, striking from Plaintiff's Complaint the following paragraphs: Page 14, Paragraph 33, Lines1-4: “As a further direct, proximate and legal result of the material breaches of the Consulting Agreement by Defendant PCLLC. Plaintiff Winston has and will continue to incur attorney's fees and costs to collect on the August 31, 2018 Completion Invoice issued to Defendant which he is entitled to recover under Section 4.3 of the Consulting Agreement.” Page 15, Paragraph 38, Lines 7-11: “As a further direct, proximate and legal result of the material breaches of the Consulting Agreement by Defendant PCLLC, and the anticipatory breach and wrongful repudiation of the further Completion Fee due under the refinancing facility, Plaintiff has and will continue to incur attorney’s fees and costs to collect on the further Completion Fee from the Defendant which he is entitled to recover under Section 4.3 of the Consulting Agreement.” Page 16, Paragraph 3, Lines 16-17: “For attorneys’ fees and costs incurred in collecting on Plaintiff Winston's Completion Invoice pursuant to Section 4.3 of the Consulting Agreement” Page 17, Paragraph 7, Lines 1-3: “For attorneys’ fees and costs incurred in collecting on Plaintiff Winston's further and additional Completion Invoice for the refinancing pursuant to Section 4.3 of the Consulting Agreement” Page 9, Paragraph 21, Lines 26-28: “The third was 75% Loan to Value commitment on a refinanced business property appraised at $1.75 million.” Page 10, Paragraph 21, Lines 1-3: “On September 20. 2018. the refinance on the business property will be completed for an estimated further sum of $1,312,531.25 for which Plaintiffis entitled to a further Completion Fee 2 ~ NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT © OV O 0 N N A n n A W D a 0 N N O N w n E s W N of $127,969.14” Page 11, Paragraph 26, Lines 26-28: “...and one still pending for invoicing later on the closing of the property refinancing facility which would involve a further Completion Fee of $127,969.14 due Plaintiff” Page 12, Paragraph 28, Lines 25-26: *...and Defendant PCLLC’s operating line of credit totaling approximately $1,945,955 at Pacific Mercantile Bank™ Plaintiff's entire Second Cause of Action for “Anticipatory Breach of Consulting Agreement” appearing as Paragraphs 34 through 38 in the Complaint. Plaintiffs entire Third Cause of Action for “Alter Ego Liability,” appearing as Paragraphs 39 and 40 in the Complaint. Asalso set forth in Defendants” pending Demurrer, Plaintiff's Complaintis based on an illegal contract and should be stricken in its entirety. Additionally, Plaintiff seeks recovery of fees allegedly owed in connection with a loan made to an entity that is not even a party to Plaintiff's lawsuit. As well, Plaintiff improperly seeks recovery ofattorney's fees, which are not recoverable absent a specific statute or clear contractual provision, which does not exist as to the “Consulting Agreement” upon which Plaintiff’s entire lawsuitis based. Finally, Plaintiff's entire third cause ofaction for “alter ego liability” is impermissible as a matter of law. This Motion to Strike is based on this Notice of Motion. 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 ofwhich the Court may take judicial notice, and all further evidence and arguments that may be presented in Reply to any Opposition on this Motion to Strike or at the hearing. DATED: November 13, 2018 ABDULLA LAW GROUP ) vy, ( A \ \ [~ Mohammed I. Abdulla Attorneyfor Defendants By: 3 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT S S O O 0 N N n n e A W N = r o r o N o r o r o r o r o r o r o - Y o n i k f t f t - f t - - _ - p t 0 ~ a N w n + L o r o - o O O o o o ~ J A N w n + W w r o - MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION Defendants request that this court issue an order striking Plaintiff's entire Complaint, or in the alternative, (1) Plaintiff's requests for attorney's fees in paragraphs 33 and 38 of the Complaint, and paragraphs 3 and 7 of the Prayer for Relief: (2) Plaintiff's requests for recovery in paragraphs 21, 26 and 28 of the Complaint, as well as Plaintiff's entire cause of action for “Anticipatory Breach of Consulting Agreement” and (3) Plaintiff's entire third cause of action for “alter ego liability.” This Motion is based on Code of Civil Procedure Sections 435 through 437 and is made on the grounds that the “consulting agreement” (i.e., the “Alleged Agreement”) between the parties - upon which Plaintiff's entire complaintis based - is illegal and unenforceable. and even if it was legal or enforceable, does not adequately allege a valid attorney's fees provision. Moreover, Plaintiff's entire second cause of action for “anticipatory breach™ and the allegations related thereto are improper as against Defendant as that claim is against an entity that is not even a party to this lawsuit. Finally, Plaintiff's entire third cause of action for “alter ego liabilityis not recognized in California and otherwise inadequately pled. Asset forth below. the entire complaint must be stricken, or at minimum,the attorney’s fees allegations and entire third cause of action must be stricken without leave to amend. IL ARGUMENT A. THE COURT HAS THE AUTHORITY TO STRIKE AN ENTIRE COMPLAINT AS WELLAS IMPROPER MATTERS ALLEGED THEREIN Code of Civil Procedure Section 436 provides that "[t]he court may, upon a motion made pursuant to Section 435; or at anytime in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading: (b) Strike out all or any part of any pleading not drawn orfiled in conformity with the laws ofthis state, a court rule, or an order of the court." Code of Civil Procedure Section 431.10 providesas follows: 1 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT S O O 0 N N Q n B E W N r o r o r o r o r o r o r o r o r o - J d P i po t - p b f t f d p t f t 0 ~ a N w n 4 + w o r o - _ o O O o o ~ a N w n ES N w o r o - (a) A material allegation in a pleading is one essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to that claim or defense. (b) An immaterial allegation in a pleading is any ofthe following: (1) An allegation that is not essential to the statement ofa claim or defense. (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense. (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint. (c) An. 'immaterial allegation" means "irrelevant matter" as that term is used in Section 436. An improper prayer for damages or remediesis subject to a motion to strike. Newman v. Emerson Radio Corp., 48 Cal. 3d 973, 991-92 (1989). Here,as set forth below,this legal authority provides ample justification for the granting of this motion in full. 1. The Alleged Agreement Upon Which Plaintiff's Claim for Attorney’s Fees is Based is Invalid as a Matter of Law In the Complaint, Plaintiff asserts that he is entitled to attorney's fees under Article 4.3 of the Consulting Services Agreement (“Alleged Agreement”). (Complaint at 17:1-3.) Pursuant to Civil Code section 1717, courts will only warrant an award of attorney's fees “[i]fthere is a written agreement between the parties signed by the person to be charged . . .” (Civ. Code, § 1717.) Here. Plaintiff is not entitled to any fees arising from the Alleged Agreement or any meritless breach of contract claims that he asserts because the Alleged Agreement contains an illegal purpose and Plaintiff is not a partyto 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 4 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 ong 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 2 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT S S O C 0 N N n n E s W N b t p d p t f b p d e d pe d pe d pe d 0 0 N N O N W n E s W N 19 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 anyaction in the courts ofthis 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 ofthe Alleged Agreement calls for Plaintiff's “introduction of a Prospective Lender” for the purpose of negotiating a commercial loan agreement providing a central purpose off 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 loang 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 ofthe exhibits. (George v. Automobile Club ofSouthern 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 Companyj 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” on commercial lender, 2) the establishment of a new “operating line of credit” to support the 3 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT O O 0 0 N N O Y W n A W O N o o ~ a N w n 4 a r o b t o O 0 ~ A N w n + L o r o - o O 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 Company that could provide a term loan for paying offthe 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.) sok “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.) Hk “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...” (RJN,Ex. 2, 910.) kk “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 July 30, 2018.” (RIN, Ex. 2, 713.) 4 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT O O 0 N N Q O n m s e W N r o r o r o r o r o r o r o r o r o - - _ - _ - -_ - - - I - - o o ~ a N w n + w o M N - _ = o O o o ~ ~ A N w n ES N w o r o - _ S * %k “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, 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 ofillegal 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 of this 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 Agreement is unenforceable. Thus, Plaintiffs 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 person who is engaged in the business of negotiating or performing anyact 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.) 5 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT - _ - S S o O 0 N N N Y n n E W N N o r o r o r o r o -_ - - - -_ - -_ - _ - f t - - -_ - E e 2 r o i t o O O o o o ~ D N W n - w o r o - 25 Accordingly, “[a] contract whose objectis 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 if 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.) 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. (/bid.) 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. Even if the Alleged Agreement is Legal and Enforceable, Plaintiff Cannot Establish That He Is Entitled to Attorney’s Fees The attorneys’ fees provision contained in Article 4.3 of the Alleged Agreement (in addition to being placed under the heading “REPRESENTATIONS WARRANTIES AND INDEMNIFICATIONS™) provides, “[s]hould Company at any time not be in a position to pay or reimburse Consultant for amounts due to Consultant, Company agrees to reimburse Consultantfor costs incurred including lawyer's fees, expenses and related court costs associated with the collection of fees and/or expenses owed Consultant under this Agreement.” (Complaint, Ex. 1 at 4.) Such a clause does not in any way amountto a right to collect reasonable attorney’s fees should Plaintiff be deemed the prevailing party in this (wholly frivolous) action. (Santisas v. Goodin (1998) 17 Cal.4th 599 (“To answer this question [whether the fee agreement covers the 6 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT p t S S N O X X N N O O W n k s W N P Y P Y P Y M Y m = e m e m e e e t b e d e d e d e e d p e A W N = © 0 X X N N N n n E B W N 25 dispute], we apply the ordinary rules of contract interpretation” and “*[t]he clear and explicit’ meaning of these provisions . . . controls judicial interpretation.”).) In fact, a reasonable interpretation ofthe clause - which California law adoptsas a tenet of construction (Civ. Code § 1643) - wholly prevents Plaintiff from recovering any fees he incurs in this action. In this regard, Plaintiff never alleges that Defendants are not in a “position to pay or reimburse” by reason of financial wherewithal or any other reason. (See Complaint, generally.) In fact, by virtue of the fact that Defendants have satisfied this Court's Attachment Order to secure any purported recovery to which Plaintiff believes he is entitled, Defendants have demonstrated that they are financially capable of paying any judgment to which Plaintiff is ultimately deemed to be entitled. As such. the equivocal “attorney's fees provision” upon which Plaintiff relies is not applicable. prohibiting any purported entitlement to such even ifthe Alleged Agreementis viable, which it is not. This becomes especially profound in light of the fact that Plaintiff, as the drafter, must live by his own words. (Civ. Code, § 1654 (*[T]he language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.”).) Moreover, the provision is in an Indemnification section and comesat the end of the Article that describes the indemnification procedure. The language in the Alleged Agreement that states, “not in a position to pay or reimburse consultant.” is in reference to an indemnification process, not a prevailing party provision that is common in contracts. This is the only reference to attorney fees. As such, the language should be interpreted as relating to an indemnification, not as fees relating to a breach of contract case or dispute related to the Alleged Agreement. Accordingly. Plaintiff is unable to establish the amount of damages to which he contends he is entitled, further cementing that the Motion to Strike be granted. III. PLAINTIFF'S SECOND CAUSE OF ACTION FOR “ANTICIPATORY BREACH OF CONSULTING AGREEMENT” IS IMPROPER AS AGAINST - NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT O O 0 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 - f t I t - p k - m a d P t P t - ~ J a N w n + w o r o - o S o O o ] ~ A N w n + = w l r o -_ - o O r o o e DEFENDANTS AS THE CLAIM IS AGAINST AN ENTITY THAT IS NOT EVEN A PARTY TO THIS LAWSUIT Anticipatory breach occurs when one ofthe parties to a bilateral contract repudiates the contract. Taylor v. Johnston (1975) 15 Cal.3d 130, 137. Needless to say, a valid agreement is a prerequisite for the assertion of such a claim. See, e.g. Roddenberry v. Roddenberry (1996) 44 Cal.App.4" 634, 654-655 [plaintiff seeking contract recovery must plead and prove contract formation and breach. ] There can be no contract formation with an entity that was not even a party to the contract. Here, for the reasons set forth above, the illegal and unenforceable Alleged Agreement entirely bars Plaintiff’ second cause of action. Moreover, the Alleged Agreement provides for Plaintiff's Completion Fee as a “financial Commitment with Company” and defines the Company as “PlanNet Consulting, LLC.” (Complaint, Ex. A, preamble.) Plaintiff's second cause of action and the allegations in paragraph 21. 26 and 28 arise out ofa financial commitment to Redhill Partners. GP (“Redhill”) rather than the company, PlanNet. (Complaint, 99 21, 26, 28, 34-40.) Indisputably. Redhill is not a party to the Alleged Agreement and Plaintiff therefore has no claim to the alleged fees arising therefrom. Accordingly,there is no contract upon which to base any alleged right to recover any monies from any transaction concerning Redhill to which Plaintiff purports to be entitled. rendering the second cause ofaction incurablyfatal. IV. 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 ofcontract ..., but rather, procedural, i.e., to disregard the corporate entity as a distinct defendant and to hold the alter ego individuals liable on the obligations of the corporation where the corporate formis being used bythe individuals to escape personal liability, sanction a fraud, or promote injustice.” 8 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT O O 0 0 N N O O w n A W N c o A N W n B s o O O o o C ~ A W n 4 w o M N - o Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486. 516; Hennessey's Tavern, Inc. v. American Ain 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 Prin 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 hig alleged actions or omissions to act as to the operation, governance and business of PCLLC is, and af 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 ofallegations 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 judgmentor 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 show that a creditor will remain unsatisfied if the corporate veilis 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). 9 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT O o 0 N N Y n B e W N P R B Y D D m = e m e m e b e m e d e d e d e d p e N = O O 0 N N N N R W N D - = O O 23 Here, even if Plaintiff could allege a cause of action for “alter ego liability,” the Complaint’ conclusory, boilerplate statements do notsuffice to provide any factual support to sustain such a claim, (See Complaint, § 6.) Moreover, pursuant to the foregoing authority, any purported concern regarding collectability of an ultimate judgment (which would be wholly improper) against PlanNet are not justification for a finding of alter ego liability, much less reason to allow such a cause ofaction to proceed.’ As such, Plaintiff's allegations under the third cause ofaction - 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” Motion to Strike as to the third cause ofaction without leave to amend. Ve CONCLUSION For the foregoing reasons, Defendants respectfully request that the court grant the Motion to Strike the Complaintin its entirety, or in the alternative, to Strike the Complaints requests for attorneys’ fees. the entire second cause of action and entire third cause of action as described herein. DATED: November 13, 2018 ABDULLA LAW GROUP By: _/ [ Mohammed I. Abdulla Attorneyfor Defendants ! This is particularlytrue in this case since, Plaintiff currently has an attachment order over a specifically earmarked bank accountthat this Court has ruled is sufficient to protect any potential recovery he hopes to obtain in this action. 10 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT f k S S O O 0 N N 4 w n B E W N B N O N N N N N N N N r m m m e m p d b d b d e d p d e d p e 0 N N O N n n k B W N = O O O O X N N N E R W N PROOF OF SERVICE I am a resident ofthe 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 November 13, 2018, I served the following document(s) by the method indicated below: NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFF'S COMPLAINT, OR CERTAIN PORTIONS THEREOF; MEMORANDUM OF POINTS AND AUTHORITIES 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 ordinarycourse 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@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 is true and correct. Executed on November 13, 2018, at Irvine, California. Tae / C tA (/ __ Mohammed Abdulla 11 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT