Demurrer To Complaint Regarding Roa2DemurrerCal. Super. - 4th Dist.March 10, 202030-2020-01 AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Electronically Filed by Superior Court of California, County of Orange, 07/02/2020 04:17:00 PM. 137857-CU-BC-CJ C - ROA #17 - DAVID H. YAMASAKI, Clerk of the Court By Karla Macias, Deputy Clerk. DE CASTRO LAW GROUP, P.C. José-Manuel A. de Castro (State Bar No. 213769) Jjmdecastro@decastrolawgroup.com Telephone: (310) 270-9877 David G. Larmore (State Bar No. 216041) dlarmore @decastrolawgroup.com Telephone: (310) 270-9826 Lori V. Minassian (State Bar No. 223542) Iminassian@decastrolawgroup.com Telephone: (310) 270-9879 7590 N. Glenoaks Blvd., Suite 201 Los Angeles, California 91504 Attorneys for Defendants G&R Precision Grindings, Inc., Ronald Graves, and Terry Graves SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE JORGE RODRIGUEZ; Case No: 30-2020-01137857-CU-BC-CIC Plaintiff, DEFENDANTS G&R PRECISION GRINDING, INC., RONALD GRAVES, AND TERRY VS. GRAVES’S NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; G&R PRECISION GRINDING, INC, a MEMORANDUM OF POINTS & AUTHORITIES California Corporation; RONALD IN SUPPORT OF DEMURRER; AND GRAVES. an individual: TERRY DECLARATION OF JOSE-MANUEL A. DE GRAVES, an individual; IRA SERVICES CASTRO REGARDING FRE-FILING: CONFERENCE TRUST COMPANY, CFBO; and DOES 1 through 10, inclusive, Date: August 20,20 Defendants. Time: 1:30 p.m. Judge: Honorable Glenn Salter Dept.: C22 Reservation ID: 73331317 Complaint Filed: March 10, 2020 PLEASE TAKE NOTICE that on August 20,2020 at 1:30 p.m., or as soon thereafter as counsel may be heard in Department C22 of this Court, located at 700 Civic Center Drive West, Santa Ana, CA 92701, Defendants G&R Precision Grinding, Inc., Ronald Graves, and Terry Graves (collectively, 1 DEFENDANTS’ DEMURRER TO COMPLAINT; MEMORANDUM; AND DECLARATION Case No.: 30-2020-01137857-CU-BC-CIC AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 “Defendants”), will and hereby do demur generally and specifically to Plaintiff Jorge Rodriguez’s Complaint, and to each of the Causes of Action therein asserted against Defendants. Defendants so demur on the ground that said causes of action therein, fail to state facts sufficient to constitute a cause of action on which the Court may grant relief against Defendants, and/or each of them, and is therefore subject to demurrer under Code of Civil Procedure Section 430.10(d) and (e). Defendants also demur on the ground that said causes of action are uncertain and therefore subject to demurrer under Code of Civil Procedure Section 430.10(f). Defendants’ Demurrer is based upon this is based upon this Notice of Demurrer, the attached Demurrer to Plaintiff’s Complaint, the attached Memorandum of Points and Authorities, the attached Declaration of José-Manuel A. de Castro, and the records and pleadings on file herein, and upon such oral and documentary evidence as may be presented at the time of hearing thereon. Dated: July 2, 2020 DE CASTRO LAW GROUP, P.C. By: /s/José-Manuel A. de Castro José-Manuel A. de Castro Attorneys for Defendants G&R Precision Grindings, Inc., Ronald Graves, and Terry Graves 2 DEFENDANTS’ DEMURRER TO COMPLAINT; MEMORANDUM; AND DECLARATION Case No.: 30-2020-01137857-CU-BC-CIC AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 DEMURRER G&R Precision Grinding, Inc., Ronald Graves, and Terry Graves (collectively, “Defendants”), demur to the Complaint on the following grounds: DEMURRER TO FIRST CAUSE OF ACTION 1. G&R Precision Grinding, Inc. demurs to the First Cause of Action for Breach of Settlement Agreement (i.e. Contract) on the ground that the pleading does not state facts sufficient to constitute a cause of action. Cal. Civ. Proc. Code § 430.10(e). 2. Ronald Graves demurs to the First Cause of Action for Breach of Settlement Agreement on the ground that the pleading does not state facts sufficient to constitute a cause of action. Cal. Civ. Proc. Code § 430.10(e). 3. Terry Graves demurs to the First Cause of Action for Breach of Settlement Agreement on the ground that the pleading does not state facts sufficient to constitute a cause of action. Cal. Civ. Proc. Code § 430.10(e). 4. G&R Precision Grinding, Inc. demurs to the First Cause of Action for Breach of Settlement Agreement on the ground that it is uncertain and therefore subject to demurrer under Code of Civil Procedure Section 430.10(f). 5. Ronald Graves demurs to the First Cause of Action for Breach of Settlement Agreement on the ground that it is uncertain and therefore subject to demurrer under Code of Civil Procedure Section 430.10(f). 6. Terry Graves demurs to the First Cause of Action for Breach of Settlement Agreement on the ground that it is uncertain and therefore subject to demurrer under Code of Civil Procedure Section 430.10(f). DEMURRER TO SECOND CAUSE OF ACTION 7. G&R Precision Grinding, Inc. demurs to the Second Cause of Action for Intentional Misrepresentation on the ground that the pleading does not state facts sufficient to constitute a cause of action. Cal. Civ. Proc. Code § 430.10(e). 8. Ronald Graves demurs to the Second Cause of Action for Intentional Misrepresentation on the ground that the pleading does not state facts sufficient to constitute a cause of action. Cal. Civ. 3 DEFENDANTS’ DEMURRER TO COMPLAINT; MEMORANDUM; AND DECLARATION Case No.: 30-2020-01137857-CU-BC-CIC AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Proc. Code § 430.10(e). 9. Terry Graves demurs to the Second Cause of Action for Intentional Misrepresentation on the ground that the pleading does not state facts sufficient to constitute a cause of action. Cal. Civ. Proc. Code § 430.10(e). 10. G&R Precision Grinding, Inc. demurs to the Second Cause of Action for Intentional Misrepresentation on the ground that it is uncertain and therefore subject to demurrer under Code of Civil Procedure Section 430.10(f). 11. Ronald Graves demurs to the Second Cause of Action for Intentional Misrepresentation on the ground that it is uncertain and therefore subject to demurrer under Code of Civil Procedure Section 430.10(f). 12. Terry Graves demurs to the Second Cause of Action for Intentional Misrepresentation on the ground that it is uncertain and therefore subject to demurrer under Code of Civil Procedure Section 430.10(f). DEMURRER TO THIRD CAUSE OF ACTION 13. G&R Precision Grinding, Inc. demurs to the Third Cause of Action for Negligent Misrepresentation on the ground that the pleading does not state facts sufficient to constitute a cause of action. Cal. Civ. Proc. Code § 430.10(e). 14. Ronald Graves demurs to the Third Cause of Action for Negligent Misrepresentation on the ground that the pleading does not state facts sufficient to constitute a cause of action. Cal. Civ. Proc. Code § 430.10(e). LS. Terry Graves demurs to the Third Cause of Action for Negligent Misrepresentation on the ground that the pleading does not state facts sufficient to constitute a cause of action. Cal. Civ. Proc. Code § 430.10(e). 16. G&R Precision Grinding, Inc. demurs to the Third Cause of Action for Negligent Misrepresentation on the ground that it is uncertain and therefore subject to demurrer under Code of Civil Procedure Section 430.10(f). 17. Ronald Graves demurs to the Third Cause of Action for Negligent Misrepresentation on the ground that it is uncertain and therefore subject to demurrer under Code of Civil Procedure 4 DEFENDANTS’ DEMURRER TO COMPLAINT; MEMORANDUM; AND DECLARATION Case No.: 30-2020-01137857-CU-BC-CIC AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Section 430.10(f). 18. Terry Graves demurs to the Third Cause of Action for Negligent Misrepresentation on the ground that it is uncertain and therefore subject to demurrer under Code of Civil Procedure Section 430.10(f). DEMURRER TO SIXTH CAUSE OF ACTION 19. G&R Precision Grinding, Inc. demurs to the Sixth Cause of Action for Declaratory Relief on the ground that the pleading does not state facts sufficient to constitute a cause of action. Cal. Civ. Proc. Code § 430.10(e). 20. Ronald Graves demurs to the Sixth Cause of Action for Declaratory Relief on the ground that the pleading does not state facts sufficient to constitute a cause of action. Cal. Civ. Proc. Code § 430.10(e). 21. Terry Graves demurs to the Sixth Cause of Action for Declaratory Relief on the ground that the pleading does not state facts sufficient to constitute a cause of action. Cal. Civ. Proc. Code § 430.10(e). 22. G&R Precision Grinding, Inc. demurs to the Sixth Cause of Action for Declaratory Relief on the ground that it is uncertain and therefore subject to demurrer under Code of Civil Procedure Section 430.10(f). 23. Ronald Graves demurs to the Sixth Cause of Action for Declaratory Relief on the ground that it is uncertain and therefore subject to demurrer under Code of Civil Procedure Section 430.10(f). 24. Terry Graves demurs to the Sixth Cause of Action for Declaratory Relief on the ground that it is uncertain and therefore subject to demurrer under Code of Civil Procedure Section 430.10(f). DEMURRER TO SEVENTH CAUSE OF ACTION 25. G&R Precision Grinding, Inc. demurs to the Seventh Cause of Action for Express Contractual Indemnity on the ground that the pleading does not state facts sufficient to constitute a cause of action. Cal. Civ. Proc. Code § 430.10(e). 26. Ronald Graves demurs to the Seventh Cause of Action for Express Contractual Indemnity on the ground that the pleading does not state facts sufficient to constitute a cause of action. 5 DEFENDANTS’ DEMURRER TO COMPLAINT; MEMORANDUM; AND DECLARATION Case No.: 30-2020-01137857-CU-BC-CIC AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Cal. Civ. Proc. Code § 430.10(e). 27. G&R Precision Grinding, Inc. demurs to the Seventh Cause of Action for Express Contractual Indemnity on the ground that it is uncertain and therefore subject to demurrer under Code of Civil Procedure Section 430.10(f). 28. Ronald Graves demurs to the Seventh Cause of Action for Express Contractual Indemnity on the ground that it is uncertain and therefore subject to demurrer under Code of Civil Procedure Section 430.10(f). Dated: July 2, 2020 DE CASTRO LAW GROUP, P.C. By: /s/José-Manuel A. de Castro José-Manuel A. de Castro Attorneys for Defendants G&R Precision Grindings, Inc., Ronald Graves, and Terry Graves 6 DEFENDANTS’ DEMURRER TO COMPLAINT; MEMORANDUM; AND DECLARATION Case No.: 30-2020-01137857-CU-BC-CIC AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff’s complaint is a largely unintelligible act of futility. Although few things about the complaint are readily discernible, one of the few things that is clear is that Plaintiff concedes that he has not performed an obligation that he freely agreed, with the advice of counsel, would be a condition precedent the core contractual obligation he seeks to enforce. He also has alleged no legal basis to excuse him from that express condition precedent. And, even if he had performed or been excused from performing the condition precedent to the payment obligation he seeks to enforce, two of the three demurring defendants, Ronald Graves and Terry Graves, are simply not parties to that payment obligation. Defendants’ demurrer should, therefore, be sustained. II. STATEMENT OF PERTINENT FACTS Plaintiff used to work with Defendants Ronald Graves and Terry Graves in a company called G&R Precision Grinding, Inc. (“G&R”). The business was originally owned solely by Ronald Graves. In December 2014 Plaintiff was given the opportunity to purchase a minority ownership interest in the business to invest in it, and did so by way of a purchase of 16,666 shares of common stock for $125,000. Terry Graves has never had any ownership interest in the business. Plaintiff requested and caused the shares of G&R Precision Grinding, Inc. that he purchased to be issued for his benefit in the name of Defendant IRA Services Trust Company. In 2017, a dispute arose concerning the management of G&R and Plaintiff sued Defendants G&R Precision Grinding, Inc., Ronald Graves, and Terry Graves (collectively, “Defendants™), for return of his investment in G&R as well as other alleged damages. In October 2018, Plaintiff and Defendants entered into a very simple and straightforward settlement agreement resolving all claims between them. Under the terms of this settlement agreement, G&R agreed to pay Plaintiff a total of $165,000, over time, to repurchase the shares of its stock Plaintiff had originally purchased. This financial commitment to Plaintiff was expressly conditioned on Plaintiff’s return of the certificate evidencing his beneficial ownership of 16,666 shares of stock in G&Rfor cancellation. Given the third-party nominal issuance on which Plaintiff had insisted when he purchased the shares, this condition was critical to G&R Precision Grinding, Inc.’s assurances that by the settlement agreement 7 DEFENDANTS’ DEMURRER TO COMPLAINT; MEMORANDUM; AND DECLARATION Case No.: 30-2020-01137857-CU-BC-CIC AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 it actually re-acquired the shares and eliminated an obvious basis for a third-party claim to the contrary. Defendants Ronald Graves and Terry Graves did not assume any financial obligations to Plaintiff under the settlement agreement. Their rights and obligations under the settlement agreement were limited to releasing all claims against Plaintiff and being released from all claims by Plaintiff. The financial and all other executory obligations under the settlement agreement are only between Plaintiff and G&R Precision Grinding, Inc. Plaintiff has not returned the share certificate to G&R Precision Grinding, Inc., but by this action seeks to recover the $165,000 G&R committed to pay him in exchange for that share certificate anyway. Moreover, he seeks that money not only from G&R, but also from Ronald Graves and Terry Graves individually, neither of whom agreed in the settlement agreement to pay him any amount under any conditions. He also claims that Ronald Graves and Terry Grave somehow defrauded him into entering into the settlement agreement, although he does not allege any false or misleading statement made by either of them as a basis for any fraud claim. III. ARGUMENT A complaint must contain “a statement of the facts constituting the cause of action in ordinary and concise language.” Cal. Civ. Proc. Code § 425.10 (emphasis added). A complaint, or any cause of action, that fails to plead sufficient facts to constitute a cause of action, or is uncertain, is subject to demurrer. Cal. Civ. Proc. Code §§ 430.10(e), 430.10(f), 430.30(a), and 430.50; Fiol v. Doellstedt (1996) 50 Cal. App.4th 1318, 1323. Indeed, the purpose of a demurrer is to test the legal sufficiency of a pleading. Owen v. Kings Supermarket (1988) 198 Cal. App.3d 379, 383. Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show the complaint alleges facts sufficient to establish every element of each cause of action. Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39. In testing the legal sufficiency of a complaint’s allegations, the Court may properly consider the contents of exhibits attached to the complaint and disregard allegations that are contradicted by such exhibits. Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 (“we 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 8 DEFENDANTS’ DEMURRER TO COMPLAINT; MEMORANDUM; AND DECLARATION Case No.: 30-2020-01137857-CU-BC-CIC AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Club of Southern Calif. (2011) 201 Cal.App.4th 1112, 1130 (for demurrer purposes, it is proper to disregard conclusory allegations about a contract that are belied by the contract itself attached to the complaint.). A. Plaintiff’s Breach of Contract Claim Fails The basic elements of a breach of contract claim hardly merit mention. To state a claim, a Plaintiff must plead the existence of a contract with a given defendant, said defendant’s breach of one or more provisions of that contract, the plaintiff's performance of all obligations and conditions to the defendant’s performance under the contract, or a basis for excuse there from, and damages resulting from the defendant’s breach. Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186. Plaintiff has not, and cannot plead these elements against Ronald Graves and Terry Graves because under the express terms of the settlement agreement they simply are not parties to the financial obligation Plaintiff seeks to enforce. The Settlement Agreement provides, in no uncertain terms, that provided certain conditions are met, “G&R shall pay a settlement amount . . . to or for the benefit of Rodriguez.” (Complaint, Exh. C, p. 1, sec. 2(a) (emphasis added).) Ronald Graves and Terry Graves, although parties to the Settlement Agreement, did not agree to pay Plaintiff anything themselves, under any circumstances. Plaintiff likewise has not pleaded and cannot plead a breach of contract claim against G&R Precision Grinding, Inc. because he has not performed an express condition to the right he seeks to enforce or alleged any factual basis for any valid excuse from that right. It is axiomatic that a party’s failure to perform a condition precedent to another’s performance precludes an action for breach of contract. Alki Partners, LP v. DB Fund Servs., LLP (2016) 4 Cal.App.5th 574, 592; Richman v. Hartley (2014) 224 Cal. App.4th 1182, 1192. A contracting party has no obligation to perform, and thus cannot be in breach of such a performance obligation, until conditions precedent to that performance have been satisfied. At its core, the settlement agreement represented a contract for the repurchase of shares of stock evidenced by a share certificate. It thus provides, “Notwithstanding any provision in this Agreement to the contrary, none of the installment payments [towards the Settlement Amount] described in section 2(a)(ii) above shall be due and payable prior to Rodriguez’s fulfillment of his 9 DEFENDANTS’ DEMURRER TO COMPLAINT; MEMORANDUM; AND DECLARATION Case No.: 30-2020-01137857-CU-BC-CIC AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 obligations under this section 5 [requiring Rodriguez to return the certificate of the purchased shares to G&R Precision Grinding Inc.]” (Complaint, Exhibit C at p. 3, sec. 5.) By this action, Plaintiff is seeking payment of the agreed-upon purchase price for the subject asset-the previously issued shares-without tendering the physical evidence of ownership of asset being sold and exchanged for that purchase price-i.e. the share certificate. Thus, he seeks to have G&R Precision Grinding, Inc. pay him $165,000 to purchase stock without being assured in exchange that another party, or perhaps even Plaintiff himself, could not claim to still own that stock as evidenced by an outstanding and un- cancelled share certificate. Plaintiff vaguely alleges in conclusory fashion that he has somehow been excused from the obligation to return the certificate evidencing the shares he seeks to sell, but he has alleged no factual basis for any such excuse. The closest he has come to alleging any such factual basis is his allegation that “G&R refused to place a ‘stop transfer’ on the shares and reissue them.” (Complaint, 432.) Aside from being wholly untrue (which is a matter for another day), Plaintiff has not alleged any source of any alleged legal obligation on the part of G&R Precision Grinding, Inc. to “place a ‘stop transfer’ on the shares and reissue them.” Nor has he alleged how doing so would facilitate Plaintiff’s performance of his contractual obligations or facilitate G&R Precision Grinding, Inc.’s realization of the benefit of such performance by Plaintiff, namely that elimination of a documentary basis for a cloud on G&R Precision Grinding, Inc.’s title to the shares of stock it agreed to re-purchase from Plaintiff under the Settlement Agreement. Thus, despite including the word “excused” in his Complaint, Plaintiff has not alleged a minimally-sufficient basis to find that he was excused from anything. B. Plaintiff’s Misrepresentation Claims Fail To sustain a claim for or fraud, Plaintiff must plead, and eventually prove, seven basic elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) 10 DEFENDANTS’ DEMURRER TO COMPLAINT; MEMORANDUM; AND DECLARATION Case No.: 30-2020-01137857-CU-BC-CIC AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiffs reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff. Manderville v. PCG & S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498 (emphasis omitted). These elements must be pleaded with heightened specificity as to facts concerning the “how, when, where, to whom, and by what means” allegedly fraudulent misrepresentations were made. Citizens of Humanity, LLC v. Costco Wholesale Corp. (2009) 171 Cal.App.4th 1, 20; Accord Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. This is particularly the case when a plaintiff asserts a fraud claim against a corporate defendant, as in such circumstances, the plaintiff must also clearly allege the identity of the specific maker of the alleged misrepresentation and the authority of that person to speak on behalf of the corporate defendant. Lazar, 12 Cal.4th at 645. Statements of prediction about future events generally cannot form the basis of a misrepresentation claim, because such statements cannot, by definition, be said to be “false,” much less knowingly “false,” when made. Neu-Visions Sports, Inc. v. Soren/McAdam/Bartells (2000) 86 Cal.App.4th 303, 308; Padgett v. Phariss (1997) 54 Cal. App.4th 1270, 1284; Pacesetter Homes, Inc. v. Brodkin (1970) 5 Cal.App.3d 206, 210-212; Daniels v. Oldenburg (1950) 100 Cal.App.2d 724, 727. The limited exception to this general rule, for claims of promissory fraud, requires specific allegations, and eventual proof, regarding specific knowledge on the part of the maker of the promise of the maker’s undisclosed inability to honor the promise, as well as reliance on the false promise of performance itself rather that the failure ultimately to perform. Lazar, 12 Cal.4th at 638, 649. Plaintiff’s misrepresentation claims are almost entirely unintelligible but one thing is certain, he has made no such allegations. Plaintiff alleges that, in order to induce him to enter into the settlement agreement, “Defendant” somehow falsely “represented” that “they” would pay Plaintiff $165,000, over time, if and when Plaintiff returned the certificate of the G&R Precision Grinding, Inc. stock he beneficially owned. Read in the most generous light, Plaintiff appears to be suggesting that by entering into the agreement Defendants falsely promised they would perform their obligations under that agreement if Plaintiff performed his obligations. He does not allege, nor can he allege, that G&R Precision Grinding, Inc. 11 DEFENDANTS’ DEMURRER TO COMPLAINT; MEMORANDUM; AND DECLARATION Case No.: 30-2020-01137857-CU-BC-CIC AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 harbored an inability to pay Plaintiff the agreed upon amount, nor that Plaintiff relied on the promise of his contractual payment in any way other than performance of (certain of) his obligations under the Settlement Agreement, including the dismissal of his prior lawsuit. The putative false promise theory suggested by both of Plaintiff's misrepresentation claims is nothing more than a recasting of Plaintiff’s contract claim rather than a separate misrepresentation claim. Moreover, just as with the breach of contract claim, Plaintiff cannot contend that Defendants- or more specifically, Defendant G&R Precision Grinding, Inc.-falsely committed to honor contractual obligations that have not yet even become executory because Plaintiff has not satisfied an express contractual condition precedent to those obligations; and his allegation that Defendants Ronald Graves and Terry Graves falsely represented some financial commitment on their own part to pay him anything is belied by the express language of the Settlement Agreement under which they assume no financial commitment. C. Plaintiff’s Declaratory Relief Claim Fail The purpose of a declaratory judgment is to settle actual controversies before they have caused damages. Rimington v. General Acc. Group of Ins. Companies (1962) 205 Cal.App.2d 394. Code of Civil Procedure Section 1061 affords the Court broad discretion in determining whether to exercise its ability to grant declaratory relief. Cal. Code Civ. Proc. § 1061; Wieber v. Worton (1951) 105 Cal.App.2d 626; Pacific Elec. Ry. Co. v. Dewey (1950) 95 Cal. App.2d 69; Hannula v. Hacienda Homes (1949) 34 Cal. 2d 442; Communist Party of U.S. of America v. Peek (1942) 127 P.2d 889, 20 Cal.2d 536; Sunset Scavenger Corp. v. Oddou (1936) 11 Cal. App.2d 92. But, courts generally decline to exercise such authority when the alleged controversy is not ripe or other non-declaratory remedies are available to the parties. Citizens’ Committee for Old Age Pensions v. Board of Sup’rs of Los Angeles County (1949) 91 Cal. App.2d 658; Girard v. Miller (1963) 214 Cal.App.2d 266; Claremont Imp. Club v. Buckingham (1948) 89 Cal.App.2d 32 (An action for a declaratory judgment does not lie where declaratory relief would serve no useful purpose.). Courts have also declined to exercise the power to grant declaratory relief where the complaint showed that there was no possible cause of action on the facts alleged. Jackson v. Teachers Ins. Co. (1973) 30 Cal.App.3d 341. Plaintiff seeks declaratory relief “concerning . . . Defendants’ G&R and Ronald and terry 12 DEFENDANTS’ DEMURRER TO COMPLAINT; MEMORANDUM; AND DECLARATION Case No.: 30-2020-01137857-CU-BC-CIC AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Graves lack of compliance with G&R’s governing corporate documents and applicable corporate law.” (Complaint, q 10.) But, nowhere in the Complaint does Plaintiff identify either the supposed “governing corporate documents” or their provisions, or the supposedly “applicable corporate law.” And, if any of the moving Defendants had actually breached any obligation owed to Plaintiff under any governing documents or corporate law, which they categorically deny, any remedy for such breach would be framed and determined by those documents or laws themselves. Plaintiff clearly hopes against hope that there is some source of authority for the notion that he is entitled to the benefit of the Settlement Agreement into which he freely entered, without tendering the consideration he agreed to provide in exchange. There is not, and he has not alleged any basis for the Court to declare otherwise. B. Plaintiffs Contractual Indemnity Claim Fails Plaintiffs final cause of action against the demurring Defendants is yet another unintelligible head-scratcher. Under Plaintiffs original agreement to purchase shares of stock in G&R, which he has fortunately attached to the complaint, G&R Precision Grinding, Inc. warranted “to defend the sale of [the shares] to [Plaintiff].” (Complaint, Exh. A at a. In other words, G&R Precision Grinding, Inc. committed to defend its claim to ownership of the shares being sold against any claim that it did not own the shares being sold or that it did not have the right to sell the shares, thereby guaranteeing that Plaintiff actually received the bargained-for consideration for his $125,000 equity investment. Plaintiff has not alleged that anyone has asserted a claim that G&R did not own the shares it sold to Plaintiff in 2014 or that it did not have the right to sell those shares to Plaintiff in 2014. Plaintiff’s contractual indemnity claim is perhaps creative, but nevertheless squarely ill-conceived, non sequitur. 1" 1" 1" 1" 1" 1" 13 DEFENDANTS’ DEMURRER TO COMPLAINT; MEMORANDUM; AND DECLARATION Case No.: 30-2020-01137857-CU-BC-CIC AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 IV. CONCLUSION Plaintiff’s complaint is an ill-conceived, fundamentally-flawed act of desperation. He made a deal and is apparently having trouble figuring out how to keep up his end of the bargain. So, he is looking to anyone other than himself to bail him out. His claims against G&R Precision Grinding, Inc., Ronald Graves, and Terry Graves all fail as a matter of law. The instant demurrer should, therefore, be granted. Respectfully submitted, Dated: July 2, 2020 DE CASTRO LAW GROUP, P.C. By: /s/José-Manuel A. de Castro José-Manuel A. de Castro Attorneys for Defendants G&R Precision Grindings, Inc., Ronald Graves, and Terry Graves 14 DEFENDANTS’ DEMURRER TO COMPLAINT; MEMORANDUM; AND DECLARATION Case No.: 30-2020-01137857-CU-BC-CIC AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 DECLARATION OF J OSE-MANUEL A. DE CASTRO José-Manuel A. de Castro hereby declares, 1. I am an attorney admitted to practice before the Courts of the State of California and affiliated with the firm of DE CASTRO LAW GROUP, P.C., counsel for Defendants G&R Precision Grinding, Inc., Ronald Graves, and Terry Graves in connection with this action. 2. I have discussed the substance of this demurrer and the myriad of defects in the complaint described therein by telephone with Plaintiff’s counsel, Stanley Bowman, on numerous occasions. 3. Most recently, on June 23, 2020, I sent an e-mail message to Mr. Bowman further elaborating on some of the fundamental flaws underlying Plaintiff’s claims and theories of relief. In that email, I invited and requested an opportunity to meet and confer further with Mr. Bowman about all of the defects in the complaint and my clients’ intent to demur to the complaint. I have not received any response from Mr. Bowman to my June 23, 2020, e-mail message to him. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 2, 2020, in the County of Los Angeles, California. /s/ José-Manuel A. de Castro José-Manuel A. de Castro 15 DEFENDANTS’ DEMURRER TO COMPLAINT; MEMORANDUM; AND DECLARATION Case No.: 30-2020-01137857-CU-BC-CIC AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 PROOF OF SERVICE I declare that I am over the age of eighteen (18) and not a party to this action. My business address is 7590 N. Glenoaks Boulevard, Suite 201, Los Angeles, California 91504. On July 2, 2020, I served the following document(s): DEFENDANTS G&R PRECISION GRINDING, INC., RONALD GRAVES, AND TERRY GRAVES’S NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER; AND DECLARATION OF JOSE-MANUEL A. DE CASTRO REGARDING PRE-FILING CONFERENCE on the interested parties in this action by transmitting a true and correct copy of such document, addressed as follows: Stanley D. Bowman 700 N. Pacific Coast Hwy., Suite 202A Redondo Beach, California 90277 Telephone: (310) 937-4529 Facsimile: (310) 937-4440 Email: sb@stanleybowman.com BY E-MAIL: In accordance with precautions being taken regarding COVID-19, I transmitted a true copy of the document(s), in .pdf format, by electronic mail to the electronic mail address listed above for each addressee. CO BY REGULAR MAIL: I deposited such envelope in the mail at 7590 N. Glenoaks Boulevard, Suite 201, Los Angeles, California 91504. The envelope was mailed with postage thereon fully prepaid. I am “readily familiar” with my office’s practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one (1) day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed: July 2, 2020 at Los Angeles, California /s/ Yasi Karimi Yasi Karimi ykarimi@decastrolawgroup.com PROOF OF SERVICE Case No.: 30-2020-01137857-CU-BC-CIC From: donotreply@occourts.org Sent: Thursday, July 2, 2020 9:54 AM To: jmdecastro@decastrolawgroup.com Subject: Superior Court of Orange County - Motion Reservation Request - CONFIRMATION Superior Court of California, County of Orange RESERVE A MOTION DATE Your reservation request has been CONFIRMED by the Superior Court. The hearing date and time below has been reserved. You will be asked to provide your reservation number to the court at a later date. MOVING PAPERS MUST BE E-FILED WITHIN 24 HOURS AFTER COMPLETING THE ON-LINE RESERVATION. Failure to submit your moving papers within 24 hours will result in the automatic CANCELLATION of the reservation. NOTE: To EXPEDITE your MOTION filing place the appropriate Court Reservation number (e.g. 7XXXXXXX) on each Motion being submitted. Please do not reply to this email. Reservation Number: 73331317 Hearing Date: July 30, 2020 Hearing Time: 1:30 PM Department: C22 Motion Type: Demurrer to Complaint Case Number: 30-2020-01137857-CU-BC-CIC Case Title: Rodriguez vs. G&R Precision Grinding, Inc. Judicial Officer: Hon. Glenn Salter Email: jmdecastro@decastrolawgroup.com Requestor Name: Jose-Manuel A. de Castro Requestor Phone: 310-270-9877 Filing Party: Defendants - G&R PRECISION GRINDING, INC., RONALD GRAVES, TERRY GRAVES Date of Request: July 2, 2020 Time of Request: 9:41 AM Transaction Number: 1000089293 Superior Court of California » County of Orange
