Lesicko vs Valenti

Demurrer

Cal. Super. - 4th Dist.March 22, 2018

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 THE JON CORN LAW FIRM ELECTRONICALLY FILED 160 CHESTERFIELD DRIVE, SUITE 201 Superior Court of California, CARDIFF-BY-THE-SEA, CALIFORNIA 92007 County of San Diego IELERHONE (760)2:44-2005 06/15/2018 at 03:35:00 PM FACSIMILE (760) 454-1886 Clerk of the Superior Court By “weronica Navarro, Deputy Clerk Jonathan C. Corn/156983 Email: joncorn@joncornlaw.com Arie L. Spangler/229603 Email: arie@joncornlaw.com Attorneys for Defendant JOSEPH VALENTI, an individual, erroneously sued as JOSEPH VALENTI, an individual dba BLACKJACK PIZZA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO, NORTH COUNTY DIVISION DAWN LESICKO, an individual, CASE NO.: 37-2018-00014346-CU-BC-NC Plaintiff, DEFENDANT’S DEMURRER TO Vs. COMPLAINT FOR DAMAGES JOSEPH VALENT]I, an individual dba Judge: Ronald F. Frazier BLACKJACK PIZZA, and DOES 1 to 5, Department: N-29 inclusive, Date: August 24, 2018 Time: 10:30 a.m. Defendants. Trial date: None set Pursuant to Code of Civil Procedure, § 430.10(e), Defendant Joseph Valenti demurs to Plaintiff Dawn Lesicko’s Complaint for Damages for failure state facts sufficient to constitute a cause of action. The grounds for Mr. Valenti’s demurrer are as follows: I. Mr. Valenti does not have any personal obligation to make payments to Ms. Lesicko. The May 9, 2009 contract sued upon provides that payments will be made by Blackjack Pizza, not Mr. Valenti personally. Ms. Lesicko does not allege any factual basis to support a finding that Blackjack Pizza is an alter ego of Mr. Valenti or the “dba” of some sole proprietorship. Documents of which this Court may take judicial notice establish that Blackjack Pizza is run through a properly organized legal entity, Valenti Brothers LLC, which has not been sued. DEFENDANT’S DEMURRER TO COMPLAINT FOR DAMAGES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 2. Ms. Lesicko is the ex-wife of Mr. Valenti. All property matters between these parties were settled in connection with their divorce, and the settlement was incorporated into a judgment of dissolution. Thus, assuming Ms. Lesicko had an otherwise valid claim against Mr. Valenti personally, that claim is barred under the doctrine of res judicata as a consequence of the judgment. 3 Ms. Lesicko’s claim is superseded by the parties’ property settlement, incorporated into the judgment of dissolution, which provides that payments to Lesicko, if any, will come through her ownership interest in Valenti Brothers LLC. 4. The one-sided contract under which Ms. Lesicko sues is invalid under the fairness doctrine governing contracts between spouses. Assuming Ms. Lesicko’s interpretation of the contract is correct, it imposes an onerous payment obligation upon Mr. Valenti and provides no consideration in return. The contract does not even meet the ordinary threshold for consideration, let alone provide “fair” consideration to Mr. Valenti. 3; Ms. Lesicko’s alleged rights under the May 9, 2009 contract did not survive the termination of her marriage with Mr. Valenti because the contract was not incorporated into the divorce decree. The above points are addressed in greater detail in the accompanying memorandum of points and authorities. DATED this fifteenth day of June, 2018. THE JON CORN LAW FIRM By: /s/ Arie L. Spangler Jonathan C. Corn Arie L. Spangler Attorneys for Defendant JOSEPH VALENTI, an individual, erroneously sued as JOSEPH VALENTI, an individual dba BLACKJACK PIZZA 2 DEFENDANT’S DEMURRER TO COMPLAINT FOR DAMAGES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 DECLARATION Pursuant to Section 430.41(a)(3) of the California Code of Civil Procedure, I, Arie L. Spangler, declare as follows: I. I am an attorney licensed to practice law in the State of California and am counsel for Defendant Joseph Valenti in this matter. 2. On May 11, 2018, I sent a letter Plaintiff Dawn Lesicko’s counsel, Danielle K. Wakefield, explaining in detail the legal deficiencies of the breach of contract claim alleged in the Complaint for Damages on file in this matter. I concluded my letter by requesting that she withdraw the claim voluntarily or, alternatively, discuss a possible demurrer to the complaint. 3 Ms. Wakefield responded by email on May 15, 2018, stating her general disagreement with the points set forth in my letter. She further stated that she would talk with Ms. Lesicko and would “be in touch by the end of the week.” 4. Ms. Wakefield wrote me later the same day stating that she had spoken with Ms. Lesicko and was confident that the complaint would withstand a demurrer. 5. I sent Ms. Wakefield another email on June 12, 2018, again inviting a discussion regarding the deficiencies of the complaint. Ms. Wakefield declined the invitation. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. DATED this fifteenth day of June, 2018. /s/ Arie L. Spangler Arie L. Spangler 3 DEFENDANT’S DEMURRER TO COMPLAINT FOR DAMAGES