Richard G. Page vs. Ali Ossaily

Demurrer to Amended Complaint

Cal. Super. - 4th Dist.October 12, 2018

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Khanjan Nosratabadi Attorneys at Law Reza Khanjan, Esq. (SBN 223404) 20162 SW Birch Street, Suite 375 Newport Beach, CA 92660 Phone (949) 250-8770 Email: reza@kndefense.com Attorneys for Defendants Bel Air Machining and Ali Ossaily SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - NORTH JUSTICE CENTER RICHARD G. PAGE, an individual; AND X-MACHINE, INC., a California corporation, Plaintiff, VS. HRL ENGINEERING AND MANUFACTURING, DBA BEL AIR MACHINING, a California corporation; ALI OSSAILY, an individual; AND DOES 1-160, inclusive, Defendants. TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that the hearing on the general and special demurrers of Defendants, Bel Air Machining, and Ali Ossaily, hereinafter referred to collectively as “Defendants” will take place on May 20, 2019 at 2:00 p.m., or as soon there after as the matter can be heard in Department N17 of the above entitled Court, located af] 1275 N. Berkeley Avenue, Fullerton, CA. 92832. Defendants will and hereby do move the Court for an order sustaining general and special demurrers to Plaintiff’s Amended Complaint. The moving party has complied with NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 1 ELECTROMICALLY FILED Superior Court of California, County of Orange 02/22/2019 at 03:30:00 FM Clerk of the Superior Court By Jeannette Dowling. Deputy Clerk Case No.: 30-2018-01025179-CU-CO-NJC NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT Judge: Honorable Craig Griffin Hearing Date: May 20, 2019 Time: 2:00 p.m. Dept.: N17 Reservation number: 72990671 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the meet and confer requirements of the California Code of Civil Procedure §430.41 as shown by the attached declaration. This motion is made pursuant to section 430.10(d) of the California Code of Civil Procedure, onthe grounds that Plaintiff’s Amended Complaint has a defect or misjoinder of parties; pursuant to Cal. Civ. Proc. § 430.10(f) on the grounds that Plaintiff’s Amended Complaint is ambiguous, uncertain or unintelligible; and pursuant to Cal. Civ. Proc. § 430.10 (e) on the grounds that the first, second, third, fourth, fifth, sixth and seventh causes of action do not state facts sufficient to constitute a cause of action. Defendants generally and specifically demurrer to Plaintiffs Richard Page and X-Machine Inc (“Plaintiffs”) Amended Complaint based on this Notice, the attached Memorandum of Points and Authorities, the Appendix of Authority, the attached declaration of Reza Khanjan regarding compliance with the meet and confer requirements of Cal. Civ. Proc. § 430.41, and all papers and records on file herein, any supplemental pleadings or exhibits submitted in support of said demurrers, and such evidence, both oral and documentary, as may be presented at the hearing on this Demurrer. THE DEMURRERS Pursuant to §430.10 of the California Code of Civil Procedure, Defendants hereby generally and specially demurrer to Plaintiff’s Amended Complaint as follows: ALL CAUSES OF ACTION Defendants specially demur to All Causes of Action in Plaintiff's Amended Complaint on the grounds that parties are misjoined and/or joined defectively. Cal. Civ. Proc. § 430.10 (d). Further, the Amended Complaint is uncertain, ambiguous and/or unintelligible. Cal. Civ. Proc. § 430.10 (f). FIRST CAUSE OF ACTION Defendants generally and specially demur to the First Cause of Action for Breach of Contract on the grounds that it fails to state facts sufficient to constitute a cause of action for Breach of Contract as an entire copy ofthe alleged contract has not been attached. Cal. Civ. Proc. §430.10 (e),(g). NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECOND CAUSE OF ACTION Defendants generally demur to the Second Cause of Action for Fraud on the grounds that it fails to state facts sufficient to constitute a cause of action for Fraud as Fraud must be pled with specificity and this cause of actionis based on the same exact set of circumstances pled in the First Cause of Action for breach of contract. Cal. Civ. Proc. §430.10 (e). THIRD CAUSE OF ACTION Defendants generally demur to the Third Cause of Action for Injunctive Relief and Accounting on the grounds that it fails to state facts sufficient to constitute a cause of action for Injunctive Relief and Accounting as thiscause of action is based on the same exact set of circumstances pled in the First Cause of Action for breach ofcontract. Cal. Civ. Proc. §430.10 (e). FOURTH CAUSE OF ACTION Defendants generally demur to the Fourth Cause of Action for Breach of Implied Covenants on the grounds that it fails to state facts sufficient to constitute a cause of action for Breach of Implied Covenants as this cause ofaction is based on the same exact set of circumstances pled in the First Cause of Action for breach of contract. Cal. Civ. Proc. §430.10 (e). FIFTH CAUSE OF ACTION Defendants generally demur to the Fifth Cause of Action for Unfair Business Practices on the grounds that it fails to state facts sufficient to constitute a cause of action for Unfair Business Practices as Unfair Business Practices must be pled with specificity. Cal. Civ. Proc. §430.10 (e). SIXTH CAUSE OF ACTION Defendants generally demur to the Sixth Cause of Action for Intentional Interference with Contract on the grounds that it fails to state facts sufficient to constitute a cause of action for Intentional Interference with Contract as an entire copy of the alleged contract has not been attached. Cal. Civ. Proc. §430.10 (e),(g). SEVENTH CAUSE OF ACTION Defendants generally demur to the Seventh Cause of Action for Intentional Interference with Prospective Economic Advantage on the grounds that it fails to state facts sufficient to constitute a cause of action for Intentional NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Interference with Economic Advantage as Intentional Interference with Economic Advantage must be pled with specificity. Cal. Civ. Proc. §430.10 (e). - rs Dated this 22" day of February 2019, J= = - Reza Khanjan NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS TABLE OF AUTHORITIES :oooonsomoommsssamsosomss coms vai eossosmmio c s iios S s Sasi sms arms q MEMORANDUM OF POINTS AND AUTHORITIES ........oooiiiiiee eects eee essere eee een 8 IL INTRODUCTION, iossusvvonvamsassssmvoronsess sess mass m es oss so n es ss s a 8 11. STATEMENT OF BACTS. ious mass osname se s sesso sess soning 8 111. BE 1 RT 8 As Le8al BASIS sovnovnavmsessusmmomsossmsssmssnmsssssssmss sesso ses says snes us some 1s foe eros ay oe Be Dee s es es 8 B. The Demurrer to All Causes of Action Must Be Sustained Because Plaintiffs Cannot Properly Join Al O88aily a8 a PATLY ......coovemimsmmmesmmmumimesssiras ssmsssssmssis ists sessrsssas sos 1( C. The Demurrer to All Causes of Action Must Be Sustained Because the Complaint is Uncertain, Ambiguous, and Unintelligible..................ccocooiiiiiniiiiiinniiee cece, 10 D. The Demurrer to the First Cause of Action Must Be Sustained Because It Lacks the SPeCiCIty REGUEFCH ..csooomrosssismsmssmmvimsumsssesvnmsssrass ssms sess miss y eess Fa e 0850 TEs 04508 SEF THE FREE EFS 1] E. The Demurrer to the Second Cause of Action Must Be Sustained Because It Lacks the ReEQUITed SPECHIICIEY :uvecvvesveussssumsusvossvmsssssiss svessrass somes sess yass sissy eess Fa e 08 50TH SS U08 SEF THE EBE EFS 1] F. The Demurrer to the Third Cause of Action Must Be Sustained Because It Fails to State a CHARI ....oooiii cece eects eee eee eee eet tebe ae ee ee eeetas beta ee ee eeetaare be ee ee eeetaeae ae aeee enn 12 i. Plaintiffs’ Cause of Action For Accounting Fails to State A Claim ........................... 12 ii. Plaintiffs’ Cause of Action For Injunctive Relief Fails to State A Claim.................. 13 G. The Demurrer to the Fourth Cause of Action Must Be Sustained Because It Fails to State a Claim and is Duplicative of the First Claim...................ccccconiiiiiiinniii eee 13 i. Plaintiffs’ Cause of Action For Breach of the Implied Covenant Fails to State A CHAI ......ooviiiiiee cece eee eee eee ee eee e ease east ae eae ee ee este re ease ee eranae es 13 ii. Plaintiffs’ Cause of Action For Breach of the Implied Covenant Alleges Nothing More Than a Breach of Contract and Therefore Fails to State A Claim................... 14 H. The Demurrer to the Fifth Cause of Action Must Be Sustained Because It Fails to State a Claim and Lacks the Required Specificity ...........cccccoooiiiiiiiiiiiiiiiii cee 15 I. The Demurrer to the Sixth Cause of Action Must Be Sustained Because It Fails to State a Claim and is Duplicative of the First Claim (interference) ..............cccccooviiiiinniininnieennennn, 16 J. The Demurrer to the Seventh Cause of Action Must be Sustained Because it Fails to State a Claim on Which Relief May be Granted..................ccoouiiiiiiniiiiiiiniie cece sees 14 Iv. COMCIUSION........oooiiiiiiiiiie ieee eee eee ee eee eee eee eet eae ae ee ee eeebae ae ae ease eeetarae ae se ee eeetaraeaeees 17 NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CALIFORNIA STATUTES Cal. Code Civ: Proc. § 425. 1002) sussssssmsssssmmssmsvssmssssissssnsesssssvsssisssss s si ies s a mses s ss save ins 9,11] Cal, CodeiCiv: Procy $430.10, BO urmemmmmmnrmsmssassimmmes i mss ses s s s s es ss esses He Ere naan 10, 12 CT I RT A To A --- 11 Cal: Bis; & Prof COE § 17200 GF SEG cusunsusussussusmsunsississussussinns ssuissss sssssn shissss sssssns she ss ss ssssss sresssssssas ans sresssa sosss 16,17 CI eT Ll A --- 17 CALIFORNIA CASES Estateof Archer (1987) 193 CALAPP.3. 238 cnissusmmsmssusssosmsonsrsessosmssssrssoissrssm vaso s s r s s sR sh as Sp ESRB) 9 Mogrew, Conliffe(1994): T'CalAth 034 «.cuuvvvsssosssmmrinsesimsmsesermsssssssiy sss sons vay rsa ss sr a s RSE i 50a 1( Lesperance v. North American Aviation, Inc. (1963) 217 Cal.APP.2d. 336 .....ccueeierieeiecieeeeeeeeee 10 Tarmann v. State Farm Mut. Ins. Co. (1991) 2 Cal. App.4th 153... since sineeese sane esis eset esse ses 10 Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.APP.3d 531 woveoeieiiiiiieeieeee eres eee 10 Otworth v. Southern Pacific Transp. Co. (1985) 166 Cal. APP.3d 452 ....oovvieiiieieece c ce ee 10,12 Twaite v. Allstate Ins. Co. (1989) 216 Cal. APP.3d 239 ....c.coiriiiiiniiiieciiiert eects seers ee seen 14 Wise v. Southern Pacific Co. (1963) 223 Cal. APP.2d 50......oooiiiiiiieeieeee eects steers estes ee seae eras 10 Droz v. Pacific National Insurance Co. (1982) 138 Cal.APP.3d 181 ..ccuiiiieiieieeie cece 10 Hirsa v. Superior Court (1981) 118 Cal.APDP.3A 487 «eerie eee eee ste sttestteseeeeeeeeeeeeeeneenae seas en es 11] Bernstein v. Piller (1950) 98 CalAPD. 2A 441 o.oo cece eases seers sree erases ne eens 11, 12 A. Teichert & Son, Inc. v. California (1965) 238 Cal.LAPP.2d 7306 ...eecveereeeieieeeieeieeee ee ee e ee 12 Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197 ....oocvvviveiicieececie eee, 13 Hall v. Department of Adoptions (1975) 47 CalLAPP.3d 898 ......eioiieiee cece eee eee seas 13 Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104 .....c.oovirieiieieeeeeee eerie 13 Lavine v. Jessup (1958) 161 Cal.APP.2A 59 ...eveeiieeeie cies eee steers ste se tease eee eee aate esse ense snes sanes 13 Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal. App.4th 772, 782 ..cceevveeviiieieeeeeeeee 13 Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal. App.4th 1807 .......eeveevriiriieiieeieeeeeee e r s ss 13 Teselle v. McLaughin (2009) 173 CalLAPDP.Ath 156 .......ccuoiiiiieeiiiiieeieeet eters eee ense erases 14 NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 City of South Pasadena v. Dept. of Transportation (1994) 29 Cal. App.4th 1280 ........ccevecvirreiieiieieeie ci s 14 Shell Oil v. Richier(1942) 52 Cal. APP2d, 168 cusssnsmussssmmenssmsrssssssrsssmms mosses ssvs ssss sss yom as 14 Smith v. San Francisco (1990) 225 Cal. APD:3A 38 wuvisuwuviwmssnvmmsssmssmmsrssmssssssissnsessssssismosssssssssss si sies sss esm mmms 15 Waller v. Truck Insurance Exchange (1995) 11 Cal. 4th 1........ccoviiiiiiioiiiicice cesses sees eee se n 15 Love v. Fire Insurance Exchange (1990) 221 Cal.APP.3d 1136 ..ocuiiiiiieiieeie ieee cesses ee sess 15 Careau & Co. v. Security Pacific Business Credit (1990) 222 Cal. App.3d 1371 ccooviveiiiieiieeee e e 15,16 Guz v. Bechtel Nat'l, Ine. (2000).24 Cal. Mh B11 Tcssmmmvessssmsssmssmssmssmsyrssssmsssmsssors ess mss ss moor sas ssssmams 14 Bionghi v. Metro Water Dist. of S. California (1999) 70 Cal. App. 4th 1358 ..ceeoiiiieiieieeeee eerie 16 Award Metals, Inc. v. Superior Court (1991) 228 Cal.APP.3d 1128 ....eooiiiiiiiieeeee eerste s s 16 Rodrigues v. Campbell Industries (1978) 87 Cal.LAPDP.3A 49%... eee 16 Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal. 4th 163 ........ccccvvvvervrennennne. 16 Saunders vi, Stuiperior Court (1994) 27 Cal. APP:Ath 832...ovmumenmmromusmssssrmssssims msi ein sas 17 Khoury v, Maly 's of Calif; Iie, (1993) 14CALAPP:AHE 612 «oosvvmmsmsmmsmmmumrvmsssmsmimssmss esis omes 17 People ex rel. Renne v. Servantes (2001) 86 Cal. App.4th 1081 .....c.oouieiiiieeieciecere eee eee ees 17 Textron Financial Corp. v. National Union Fire Insurance Co. of Pittsburgh (2004) 118 Cal. App.4th 1061 ............ 17 South Bay Chevrolet v. GMAC (1999) 72 Cal. APP.Ath 861 ....ovvoeiiiieeeee cece esses ste r r eee e e 18 Asahi Kasei Pharma Corp. v. Actelion Ltd. (2013) 222 Cal. App.4th 945 .....ocoiiiiiiieeeee eee 18 Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal. 4th 1134......ccoviiiiiniiiinecieecie reeset 19 Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal. 4th 376.......c.ccceeieiierieieieeeeeeeee e 19 Gemini Aluminum Corp. v. California Custom Shapes, Inc. (2002) 95 Cal. App.4th 1249 ........ccovvvvevveienieiiee, 19 Reeves v. Hanlon (2004) 33 Cal. 4th 1140 .....cuiiiiiie ieee eee eee stte etter sree ss eens eee e ene ese esse anse esse ense sees snnes 19 FEDERAL CASES Bell Atlantic Corp. v. Twombly (2007) 550 U.S. 544 ....oceooiiietee cece steers sree tease anes ante ente este snne ns 9,10 Marin Tug & Barge, Inc. v. Westport Petroleum, Inc. (9th Cir. 2001) 271 F.3d 825..c..cociiiiiiiiiniiiinciccienec 19 TREATISES 4. Witkin. California Procedure, § 339... cu iiss eters sates tt ee stae sate eeebae sate eesabe sane ee eras eaneeas 9 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 574 .....c.ooovieiiiieieie cece sees eee essen seas 13 NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Witkin, California Procedure (4th ed. 1997) Pleading, §779......ccvccieiieiieiieiie cineca sees 14 NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Memorandum of Points and Authorities I. Introduction Plaintiffs, Richard Page and X-Machine, Inc. (“Plaintiffs”), filed their amended complaint against Defendants, Bel Air Machining and Ali Ossaily (“Defendants”). The amended complaint has nine causes of action: (1) Breach of Contract; (2) Fraud and Deceit; (3) Injunctive Relief and Accounting; (4) Breach of the Implied Covenant of Good Faith and Fair Dealing; (5) Unfair Business Practices; (6) Intentional Interference with Contract; (7) Intentional Interference with Prospective Economic Advantage; (8) Claim and Delivery; (9) Conversion. This action arises out of a claim by Plaintiffs that Defendants wrongfully frustrated and breached the distributorship contract between Plaintiffs and U.S. Ordnance-Defense Systems and Manufacturing (“USO”) wherein: USO would place orders for parts and supply raw materials to Plaintiffs; Plaintiffs would pass orders and materials to Defendants; Defendants would produce parts to USO specifications with USO materials and return the finished parts to Plaintiffs; and Plaintiffs would return the completed works to USO. II. Statement of Facts This action arises from the business dealings between Plaintiffs and Defendant Bel-Air Machining, wherein Plaintiffs would obtain and award contracts exclusively for Defendant Bel-Air Machining. (Pl. Exhibit 1.) Plaintiffs would solicit work orders from end-level customers, primarily USO, award that order and material to Defendant Bel-Air Machining who would return the completed orders to Plaintiffs. (Pl. Exhibit 1.) Plaintiffs would then invoice the end-level customer and receive/distribute payment to Defendant Bel-Air Machining. (Pl. Exhibit 1.) Almost immediately, the relationship between Plaintiffs and Defendant Bel-Air Machining began deteriorating due to delays in Plaintiffs distributing funds to Defendant Bel-Air Machining. III. Argument A. Legal Basis for Demurrer It is well settled that a complaint must set forth a “statement of the facts constituting the cause of action, in ordinary and concise language.” Cal. Code Civ. Proc. § 425.10(a). While California pleading requirements are liberal, a complaint must at a minimum “apprise the adversary of the factual basis of the claim.” 4 Witkin, California Procedure, § 339, p. 438 (4th ed. 1997); see also Estate of Archer (1987) 193 Cal. App. 3d 238, 245; Bell NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 9 10 11 12 13 14 19 16 17 18 19 20 21 22 23 24 25 26 27 28 Atlantic Corp. v. Twombly (2007) 550 U.S. 544 (“Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”). For purposes of a demurrer, all allegations of the complaint are deemed to be true. Moore v. Conliffe (1994) 7 Cal.4th 634, 638. Nevertheless, these allegations must be of fact and not legal conclusions. Pleading mere legal conclusions is insufficient. Lesperance v. North American Aviation, Inc. (1963) 217 Cal. App. 2d 336, 343 (“Itis elementary that a pleading must allege facts and not conclusions . . .”) (quotation omitted); Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal. App. 4th 153, 156 (1991) (a demurrer assumes the truth of the material factual allegations in the complaint, but not the contentions, deductions, or conclusions of fact or law alleged therein). Pursuant to California Code of Civil Procedure § 430.10: “The party against whom a complaint or cross- complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: . . . (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; (g) In an action founded upon a contract, it cannot beascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” Mere “recitals, references to, or allegations of material facts, which are left to surmise are subject to special Demurrer for uncertainty.” Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531, 537. Further, actions in contract require the terms ofthe alleged contract to be set forth either in the complaint or attached and incorporated by reference. Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal. App.3d 452, 459. The failure to identify the material terms ofa contract renders the cause of action fatally defective. Twaite v. Allstate Ins. Co. (1989) 216 Cal. App. 3d 239,252- 253; Wise v. Southern Pacific Co. (1963) 223 Cal. App. 2d 50, 59. A demurrer should be sustained without leave to amend if the conduct complained of is not actionable as a matter of law. See, e.g., Droz v. Pacific National Insurance Co. (1982) 138 Cal.App.3d 181, 187 (affirming grant of demurrer without leave to amend where “the allegations of the complaint impose no liability under substantive law”). Here, the demurrers to the Amended Complaint and to the first seven causes of action alleged against Defendants must be sustained because they are improperly pled, are fatally uncertain, and/or fail to state a cause of action. NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 10 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Furthermore, leave to amend is granted once as a matter of course at any time before the hearing on ademurrer or motion to strike. California Code of Civil Procedure § 472. While the court’s policy on further leave to amend is generous, amendments should not be used to harass the opposing party or delay proceedings. Hirsa v. Superior Court (1981) 118 Cal. App. 3d 487. In the present case, the original and amended complaints are almost identical but for the splitting of one cause of action into two, still improperly pleaded, causes of action. Plaintiff has madeno substantive alterations to its complaint despite ample opportunity to do so. Such behavior indicates that the deficiencies in the pleading cannot be amended; thus, Defendants ask that the court sustain its demurrers without leave to amend. B. The Demurrer to All Causes of Action Must be Sustained Because Plaintiffs Cannot Properly Join Ali Ossaily as a Party Defendants do not deny the existence of Bel Air Machining as a California Corporation. However, all contact Plaintiffs had with Ali Ossaily in regards to this complaint were in his role as an agent for the Corporation. Plaintiffs state that “at all time relevant, Defendant Ossaily was an officer, director, and/or agent of Defendant Bel Air.” [Complaint 426] In no instance is Mr. Ossaily identified as a personal guarantor for any transaction named in the complaint. To name Mr. Ossaily would require Plaintiffs to breach Bel Air’s corporate veil. As such, the appropriate defendant in this case is Bel Air Machining and not Ali Ossaily, as listed. Thus, the Complaint is improperly pled and this Demurrer must be sustained. Plaintiffs have had the opportunity to correct this deficiency and failed to do so. Defendants must assume that such a correction is impossible, and ask that leave to amend not be granted. C. The Demurrer to All Causes of Action Must be Sustained Because the Complaint is Uncertain, Ambiguous, and Unintelligible The Complaint should additionally be dismissed because each of the allegations are fatally uncertain. Inits Complaint, Plaintiffs were required to state “the essential facts upon which a determination of the controversy depends” with “clearness and precision so that nothing is left to surmise.” Bernstein v. Piller (1950) 98 Cal. App. 2d 441, 443. “Mere recital, references to or allegations of material facts which are left to surmise are subject to a special NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 11 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 demurrer for uncertainty.” Id. at 443-444. Here, Plaintiffs have failed to attach the Agreements or provide verbatim their material terms (See D, infra). Moreover, the Complaint continuously alternates between naming Bel Air and Ossaily as the offending parties, treating them both interchangeably and as separate entities. Plaintiffs create further confusion by introducing both a Richard Page and a Robert Page, only to refer later to a single “Mr. Page” or “RP” later in the Complaint. [Complaint 92, 9-14, 17-19, 22, 23, 25, 28-30, 32, 34, 35, 40, 42-44, 46, 48-51, 54, 55, 57, 60, 62-64, 67, 68. 70, 73, 75-77, 80, 81, 83, 86-88, 90, 92-95, 98-102, 104-107] As both of these create the potential for misidentification, the Complaint is insufficiently specific with respect to the identity of persons who made the alleged misrepresentations, their authority to speak and bind Defendants, to whom the alleged misrepresentations were made, and the manner in which such alleged misrepresentations were made. Plaintiffs have had the opportunity to correct these deficiencies and failed to do so. Defendants must assume that such corrections are impossible, and ask that leave to amend not be granted. D. The Demurrer To The First Cause Of Action Must Be Sustained Because It Lacks The Specificity Required When there is an allegation that a contract is written, “the terms of a contract must be set forth verbatim inthe body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” Otworth, 166 Cal.App.3d at 459; see also A. Teichert & Son, Inc. v. California (1965) 238 Cal.App.2d 736, 748, disapproved on other grounds, 65 Cal. 2d 787, 792 (“[i]f writings form a necessary link in a cause of action, they should be quoted in the complaint, set out in haec verba or incorporated by reference”). Failure to do so is ground for aspecial demurrer. Cal. Civ. Proc. Code § 430.10(g). Nowhere in the Complaint do Plaintiffs attach a full copy of the alleged contract or set forth its terms verbatim. While Plaintiffs attach and incorporate the initial contract instrument. [Complaint, Exhibit A], the contract in fact contains several renegotiations, including but not limited to the renegotiation alleged by Plaintiffs of Plaintiffs’ commission from 10% to 5%. [Complaint, §17] While this change in terms is mentioned in the Complaint, no writing is incorporated, nor are the terms of this renegotiation included verbatim. Thus, the first cause of action for Breach of Contract is improperly pled and this Demurrer should be sustained. NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 12 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs have had the opportunity to correct this deficiency and failed to do so. Defendants must assume that such a correction is impossible, and ask that leave to amend not be granted. E. The Demurrer to The Second Cause of Action Must be Sustained Because it Lacks the Required Specificity Fraud must be specifically pleaded. “The effect of this rule is twofold: (a) General pleading of the legal conclusion of 'fraud' is insufficient and the facts constituting the fraud must be alleged; (b) Every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect.” Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216, superseded on other grounds, (citing 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 574; see Hall v. Department of Adoptions (1975) 47 Cal.App.3d 898, 904; Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 109; Lavine v. Jessup (1958) 161 Cal.App.2d 59, 69.) Thus, a plaintiff alleging fraud must state what was said, by whom, in what manner (i.e., oral or in writing), when, and, in the case of a corporate defendant, under what authority to bind the corporation. See Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal. App.4th 772, 782. “A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. Every element must be specifically pleaded.” Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816. Here, Plaintiffs’ fraud claim lacks the required specificity on most if not all of these grounds. For example, Plaintiffs allege that “Ossaily and Bel Air’s knowing, direct and intentional interference with the contractual relationship between Mr. Page, XMI and USO was done with the motive of financial gain and accomplished with malice, oppression and fraud against Mr. Page and XMI.” [Complaint, §9 49, 52]. Any intent on the part of the Defendants is conclusively presumed by the Plaintiffs without factual basis. Further, Plaintiffs allege damages inthe amount of at least $1,000,000.00 [Complaint §51] without identifying a calculus for this sum or a factual scenario NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 13 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 which would fault Defendants. Truthfully, Plaintiffs’ claims rest on the exact same circumstances as those inthe first cause of action for breach of contract; no distinct injury is alleged. Plaintiffs have had the opportunity to correct this deficiency and failed to do so. Defendants must assume that such a correction is impossible, and ask that leave to amend not be granted. F. The Demurrer to The Third Cause of Action Must be Sustained Because it Fails to State a Claim i. Plaintiffs’ Cause of Action for Accounting Fails to State a Claim The third cause of action seeks an accounting against Defendants. [Complaint § 57] A cause of action foran accounting requires a showing that (1) a relationship exists between Plaintiffs and Defendants that requires an accounting, and (2) that some balance is due Plaintiffs that can only be ascertained by an accounting. Tesellev. McLaughin (2009) 173 Cal. App. 4th 156, 179. Plaintiffs allege in this cause of action that they are owed “for Damages Merchandise Returns inthe amount of $8,069.06” from Defendants, and that additionally, they overpaid Defendants “the sun of $4,382.20 on certain invoices.” [Complaint 55]. These sums total $12,451.26 (twelve thousand, four hundred fifty-one dollars and twenty six cents) as determined through simple addition. Nowhere do Plaintiffs allege that additional sums might be owed to them or that an examination of Defendants’ books might be required. By stating the amount owed, Plaintiffs have eliminated the need for an accounting. Thus, the Third Cause of Action for Accounting is improperly pled and should be demurred. Plaintiffs have had the opportunity to correct this deficiency and failed to do so. Defendants must assume that such a correction is impossible, and ask that leave to amend not be granted. ii. Plaintiffs’ Cause of Action for Injunctive Relief Fails to State a Claim “Injunctive relief is a remedy, not a cause of action.” City of South Pasadena v. Dept. of Transportation (1994) 29 Cal. App.4th 1280, 1293. “To qualify for a permanent injunction, the plaintiff must prove (1) the elements ofa cause of action involving the wrongful act sought to be enjoined and (2) the grounds for equitable relief, suchas, inadequacy of the remedy at law.” Id. at p. 1293; see also 5 Witkin, California Procedure (4th ed. 1997) Pleading, §779, p. 236; see also Shell Oil v. Richter (1942) 52 Cal. App.2d 164, 168 (“Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be granted.”) NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 14 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff may feel free to pray for injunctive relief, but it is improper as a cause of action and should be demurred without leave to amend. Further, Plaintiffs have had the opportunity to correct this deficiency and failed to do so. Defendants must assume that such a correction is impossible, and again ask that leave to amend not be granted. G. The Demurrer to The Fourth Cause of Action Must be Sustained Because it Fails to State a Claim and is Duplicative of the First Claim i. Plaintiffs’ Cause of Action for Breach of the Implied Covenant Fails to State a Claim It is well established that without a viable contractual relationship, a claim for breach of the implied covenant cannot be stated. See Smith v. San Francisco (1990) 225 Cal.App.3d 38, 49 (“[t]he prerequisite for any action for breach of the implied covenant . . . is the existence of a contractual relationship between the parties, since the covenant is an implied term of the contract”); Waller v. Truck Insurance Exchange (1995) 11 Cal. 4th 1, 36 (the covenant is implied as a supplement to express contract terms and “[a]bsent that contractual right . . . the implied covenant has nothing upon which to act as supplement”). This limitation on claims for breach of the implied covenant is axiomatic because the implied covenant of good faith and fair dealing does not exist until a contract comes into existence; there is no independent cause of action for breach of the implied covenant of good faithand fair dealing. Love v. Fire Insurance Exchange (1990) 221 Cal. App.3d 1136, 1153 (“[w]ithout a contractual relationship, [a party] cannot state a cause of action for breach of the implied covenant”). At present, Plaintiffshave not yet stated a proper or viable contract action against Defendants. As such, Plaintiff have failed to state a claim for Breach of the Implied Covenant. ii. Plaintiffs’ Cause of Action for Breach of the Implied Covenant Alleges Nothing More Than a Breach of Contract and Therefore Fails to State a Claim Under California law, the implied covenant of good faith and fair dealing requires that neither party to a contract do anything that will frustrate the rights of the other party to receive the benefits of the contract. Waller, supra, 11 Cal. 4th at 36; Love, supra, 221 Cal. App.3d at 1153. A breach of the implied covenant of good faith and fair dealing involves something beyond the breach of the contractual duty itself. Careau & Co. v. Security Pacific Business Credit (1990) 222 Cal. App.3d 1371, 1394. “If the allegations do not go beyond the statement of a mere NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 15 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim isactually stated.” Id. at 1395, see also Guz v. Bechtel Nat'l, Inc. (2000) 24 Cal. 4th 317, 327, 352-53 (“[WThere breach ofan actual term is alleged, a separate implied covenant claim, based on the same breach, is superfluous.”); Bionghiv. Metro Water Dist. of S. California (1999) 70 Cal. App. 4th 1358, 1370 (because the “claim of breach of the implied covenant relies on the same acts, and seeks the same damages, as its claim for breach of contract[,]” the cause of action for breach of the implied covenant was superfluous and was properly disregarded.). In the instant action, Plaintiffs’ allegations regarding the purported breach of contract are virtually identical to those in the claim for breach of the implied covenant of good faith and fair dealing. [Complaint 99 1-26, 28-40,42- 52, 54-57, 59-71]. Further, Plaintiffs’ never actually allege Defendant’s commission of this breach, only that Plaintiff has suffered damages because of it. [Complaint §65, 67]. Because the fourth cause of action for Breach of Implied Covenant alleges nothing more than a breach of contract, it fails to state a claim for breach of covenant. ! Plaintiffs have had the opportunity to correct this deficiency and failed to do so. Defendants must assume that such a correction is impossible, and ask that leave to amend not be granted. H. The Demurrer to The Fifth Cause of Action Must be Sustained Because it Fails to State a Claim and Lacks the Required Specificity The main purpose of California Business and Professions Code § 17200 ef seq. (“Unfair Competition Law” or “UCL”) is the “preservation of fair business competition.” Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal. 4th 163, 180. The UCL authorizes civil suits for “unfair competition” which it defines, in relevant part, to “include any unlawful, unfair or fraudulent business act or practice.” Bus. & Prof. Code, §17200. 'A demurrer should be sustained to a duplicative cause of action where it merely repeats similar allegations adding nothing by way of fact or theory. Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135. Merely attaching a different label to an allegation does not save a duplicative cause of action. /d. It is proper to sustain a demurrer to a duplicative cause of action without leave to amend. Careau & Co. v. Security Pacific Business Credit, Inc., supra; see also Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501. NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 16 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff’s cause of action for unfair competition fails for a number of reasons. First, the cause of action fails to allege any purportedly “unlawful” business practices with the required specificity. The “unlawful” practices prohibited by the UCL are “any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory or court-made.” Saunders v. Superior Court (1994) 27 Cal. App.4th 832, 838-9. If abusiness practice is alleged to be “unlawful” under the unfair competition law, the plaintiff must allege the specific law that was purportedly violated. Khoury v. Maly’s of Calif, Inc. (1993) 14 Cal. App.4th 612, 616 (sustaining demurrer to Section 17200 claim without leave to amend because plaintiff did not identify which section of the law had been violated and merely alleged that “defendants breached [Section 17200] by refusing to sell [the products]to plaintiff for the purpose of ruining and interfering with his beauty supply business, with the effect of misleading plaintiff’s customers.”). Here, Plaintiffs fail to identify which law - whether, civil or criminal, federal, state, or municipal, statutory, regulatory or court-made - was violated by the Defendants. While Plaintiffs identify California Civil Code § 3294, this is improper for two reasons. First, because it is not a law violable of itself, but rather arule on when exemplary damages may be granted; second, because the particular code section applies only to actionsnot arising out of breach of contract. As this is an action in breach of contract, the code section does notapply. Second, the cause of action fails to allege any purportedly “unfair” business practices with the required specificity. “Unfair” practices prohibited by the UCL have been interpreted broadly (see, e.g., People ex rel. Renne v. Servantes (2001) 86 Cal. App.4th 1081, 1095), but cannot be based upon general common law principles. Textron Financial Corp. v. National Union Fire Insurance Co. of Pittsburgh (2004) 118 Cal.App.4th 1061, 1072 (“reliance on general common law principles to support a cause of action for unfair competition is unavailing”). Plaintiffs merely restate prior allegations [Complaint, §73-84], none of which specify the “unfair competition” upon which the claim is based. Plaintiffs failure to plead the particular unfair competition underlying the cause of action is particularly inadequate in this case, because if the basis for the Plaintiff’s unfair competition claim is a cause of actionthat cannot be maintained (because it is either improperly pled or pre-empted, etc.), the unfair competition claim cannot be maintained either. Khoury, 14 Cal.App.4th at 619 (finding that dismissal of the claim upon which an unfair competition claim is based results in dismissal of unfair competition claim as well). NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 17 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Third, the cause of action fails to allege any purportedly “fraudulent” business practices with the required specificity. The “fraudulent” practices prohibited by the UCL do not refer to the common law tort of fraud. Rather, this prong of the statute requires a showing that members of the public are likely to be deceived by the practices. South Bay Chevrolet v. GMAC(1999) 72 Cal.App.4th 861, 888. None of Defendants’ alleged conduct is likely to deceive the public, and, indeed, no allegation of likely public deceit are made. Plaintiffs have had the opportunity to correct this deficiency and failed to do so. Defendants must assume that such a correction is impossible, and ask that leave to amend not be granted. I. The Demurrer to The Sixth Cause of Action Must be Sustained Because it Fails to State a Claim, Lacks the Required Specificity and is Duplicative of the First Claim The basis of any intentional interference in contract claim is the underlying contract. In the present case, Plaintiffs have failed to attach a copy of the full and complete contract, nor do they state the terms of it verbatim. Without a copy of the contract, only Plaintiff’s word serves to bolster its position that it has been wronged. Furthermore, “/A] contracting party cannot be held liable in tort for conspiracy to interfere with its own contract.” Asahi Kasei Pharma Corp. v. Actelion Ltd. (2013) 222 Cal.App.4th 945, 961 (original italics). As the exclusive third-party beneficiary of the contract between XMI and USO, Defendants were a party to the contract inquestion and therefore cannot be held liable for this cause of action. In addition, intentional interference requires a different set of facts than simple breach. Here, Plaintiffs set out the same essential set of facts in this cause of action as in the first cause of action for breach, making it duplicative (see footnote 1, supra). The sixth cause of action fails to state a claim for intentional interference with contract, and the demurrer on this claim should be sustained. Plaintiffs have had the opportunity to correct this deficiency and failed to do so. Defendants must assume that such a correction is impossible, and ask that leave to amend not be granted. J. The Demurrer to The Seventh Cause of Action Must be Sustained Because it Fails to State a Claim on Which Relief May be Granted NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 18 10 11 12 13 14 19 16 17 18 19 20 21 22 23 24 25 26 27 28 The elements of an intentional interference claim with prospective economic or business advantage are as follows: (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. The California Supreme Court has stated that while intentionally interfering with an existing contract isa wrong in and of itself, intentionally interfering with a plaintiff's prospective economic advantage is not. Toestablish a claim for interference with prospective economic advantage, therefore, a plaintiff must plead that the defendant engaged in an independently wrongful act. Korea Supply Co., 29 Cal. 4th at 1158; see also Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal. 4th 376, 393); Gemini Aluminum Corp. v. California Custom Shapes, Inc. (2002) 95 Cal.App.4th 1249, 116; Reeves v. Hanlon (2004) 33 Cal. 4th 1140. This is because “[t]he tort of intentional interference with prospective economic advantage is not intended to punish individuals or commercial entities for their choice of commercial relationships or their pursuit of commercial objectives, unless their interference amounts to independently actionable conduct.” Id. at 1159 (citing Marin Tug & Barge, Inc. v. Westport Petroleum, Inc. (9th Cir. 2001) 271 F.3d 825, 832.) The California Supreme Court went on to define an “independently wrongful act” as one that is “unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” Korea Supply Co., 29 Cal. 4th at 1159. Here, Plaintiff has failed to plead that Defendants engaged in any independently wrongful acts under this claim, as none of its incorporated allegations refer to independently wrongful (i.e. unlawful) acts. For example, Plaintiff alleges that Defendants, “in violation of the Agreement began contacting USO directly in an attemptto subvert the Agreement and steal Mr. Page’s business.” [Complaint 492] However, none of this alleged conductrises to the required level of an independently wrongful act as defined by the California Supreme Court in Korea Supply Co., 29 Cal. 4th at 1159. The seventh cause of action fails to state a claim for intentional interference with prospective economic advantage and the demurrer on this claim should be sustained. Plaintiffs have had the opportunity to correct this NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 19 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 deficiency and failed to do so. Defendants must assume that such a correction is impossible, and ask that leaveto amend not be granted. IV. Conclusion For the foregoing reasons, Defendants respectfully request that the Court grant its Demurrers as to the Plaintiffs’ Amended Complaint. NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 20 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA ORANGE COUNTY I am employed in the County of San Diego, State of California. I am over the age of 18 and not a party to the within action. My business address is 380 S. Melrose Drive Suite 362, Vista Ca. 92081. My email is: Yibrahim@fdaughertyatlaw.com. DEFENDANTS’ REPLY MEMORANDUM OF POINTS AND AUTHORITIES INSUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT The Guerin Law Firm Regis A. Guerin (SBN 215170) 4667 MacArthurr Boulevard, #300 Newport Beach, CA 92660 regis@querinlawyers.com [ 1 By placing a true copy thereof enclosed in a sealed envelope addressed as follows. [ ] Deposited such envelope in the mail at Vista, California. The envelope was mailed with postage thereon fully prepaid. [ ] Tam “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with U.S. Postal service on that same day with postage thereon fully prepaid at Vista, California, in theordinary course of business. I am aware that 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 deposited for mailing in affidavit. [X] (BY ELECTRONIC TRANSMISSION) By transmitting a true and correct copy electronically to the attorney(s) of record for at the email address referenced in the service list. The transmission was completed without error. I declare, under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Executed on the 22 of February, 2019, at Vista, California LK 4 < Yasser Ibrahim NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF DEFENDANTS BEL AIR MACHINING AND ALI OSSAILY TO PLAINTIFF RICHARD PAGE AND X-MACHINE INC.’S FIRST AMENDED COMPLAINT - 21