Reply__to_opposition_to_demurrer_to_first_amended_crosscomplaint

Reply

Cal. Super. - 2nd Dist.August 10, 2018

Electronically FILED by Superior Court of California, County of Los Angeles on 03/11/2019 02:35 PM Sherri R. Carter, Executive Officer/Clerk of Court, by E. Galicia,Deputy Clerk B O W |9 ,] 6 7 8 9 Scott W. Wellman, SBN: 82897 Anabella Q. Bonfa, SBN: 175738 Chris Wellman, SBN: 304700 WELLMAN & WARREN LLP 24411 Ridge Route, Suite 200 Laguna Hills, CA 92653 Tel: (949) 580-3737 Fax: (949) 580-3738 Attorneys for Plaintiff/Cross-Defendant, LYA Group, Inc., and Cross-Defendants Engineer Manufacturing Group, LLC and Augustin Ramirez SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES LY A Group, Inc., a California Corporation Company, Plaintiff, VS. Gonzalo Posada, an individual, Zoraida Davila, an individual, UNITED FINISHING, the business format of which is presently unknown, and DOES 1 through 20, inclusive, Defendants. AND RELATED CROSS-ACTION Case No.: BC717716 Judge: Richard E. Rico Dept: Dept: 17 PLAINTIFF/CROSS-DEFENDANT LYA GROUP, INC. AND CROSS-DEFENDANTS AUGUSTIN RAMIREZ AND ENGINEER MANUFACTURING GROUP, LLC’S REPLY TO GONZALO POSADA’S OPPOSITION TO DEMURRER TO FIRST AMENDED CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: March 18, 2019 Time: 8:30 a.m. Dept.:17 Complaint filed 8/10/18 REPLY TO OPPOSITION TO DEMURRER TO FIRST AMENDED CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES W N Ln 6 7 8 9 MEMORANDUM OF POINTS AND AUTHORITIES ARGUMENT A. Posada Has Still Not Alleged Damage with Respect to his UCL Claim. In his Demurrer, Augustine Ramirez (“Ramirez”) argued that Gonzalo Posada (“Posada”) failed to assert damage with respect to his UCL cause of action. In response, Posada contends that he has sustained damage as a result of Ramirez’s intimidation because his third-party vendor has been unable to “retain employees,” which has “increased costs that are passed along to Posada . . .” (Opposition at 2:17 -18). However, this new allegation of “increased costs” has never been asserted in the First Amended Cross-Complaint, and therefore is improper. For this reason, the Court should grant the Demurrer as to this issue. B. Posada Has Not Alleged Unfair Conduct for his UCL Claim. Ramirez also argues that Posada has not alleged “unfair” conduct as defined under the UCL. In response, Posada contends that he has met his burden by alleging the following items: 1. That Ramirez sent “spies into Posada’s business and . . . harassed [employees] by visibly photographing cars and license plates.” (Opposition at 2:13 — 15). 2. That “Leobardo Ramirez has . . . threatened to sue anyone that supports Posada.” (Opposition at 2:15 — 16). 3. That Ramirez sent fake employees into Posada’s Mexico facilities to spy on Posada’s operations. Despite these allegations, the Court should still find that Posada has not adequately pled his UCL claim. For instance, the allegation that Leobardo Ramirez threatened to sue anyone who works for Posada does not give rise to liability against Augustine Ramirez. Thus, the allegation has no weight to the determination of this Demurrer with respect to the claims being asserted against Augustine Ramirez. Moreover, and as already stated in the Demurrer, the mere fact that Ramirez may have sent individuals to take photos of cars is neither unfair, fraudulent, or unlawful. 2 REPLY TO OPPOSITION TO DEMURRER TO FIRST AMENDED CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES L D N Oo RX 1 O y Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Zid Lastly, while Posada claims to have alleged that Ramirez violated the UCL by sending fake employees into a Mexico facility, this allegation is nowhere to be found in the cause of action itself. To reiterate, the only thing that posada alleges for purposes of his UCL claim is that Ramirez “engaged in unfair competition . . . by harassing Posada’s employees in Mexico.” The alleged harassment stems from the assertion that Ramirez took photos of cars and license plates. That is, the harassment has nothing to do with sending fake employees into the Mexico facility. For this reason, whether Ramirez sent fake employees into the Mexico facility has no bearing on this Demurrer since it is not alleged in the UCL claim. C. There is No Jurisdiction Regarding Posada’s UCL Claim. Lastly, Ramirez argued that there is no jurisdiction over Posada’s UCL claim because the alleged activity giving rise to that claim took place in Mexico. Posada has responded by stating that Ramirez was “targeting” Posada by “attacking his activities” in Mexico. Yet, there are no allegations in the First Amended Cross-Complaint that Ramirez, himself, directed anything in Mexico from California. Because these allegations are absent, the Demurrer should be granted. CONCLUSION Based on the foregoing, the Court should grant the Demurrer. Dated: March 11, 2019 WELLMAN & WARREN LLP = Scott W. Wellman Anabella Q. Bonfa Chris Wellman Attorneys for Plaintiff/Cross-Defendant, LYA Group, Inc., and Cross-Defendants Engineer Manufacturing Group, LLC and Augustin Ramirez 3 REPLY TO OPPOSITION TO DEMURRER TO FIRST AMENDED CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Oo 0 1 O N nn BR W N N N D N D N N N N N H m m em em e d p m p m pe ~N A N l L = O D N N R W ND = o PROOF OF SERVICE (California Code of Civil Procedure 1013(A) STATE OF CALIFORNIA) I am over the age of 18 and I am not a party to the within action. I am employed by law firm of WELLMAN & WARREN LLP Attorneys at Law, 24411 Ridge Route, Suite 200, Laguna Hills, California 92653. On March 11, 2019, I served the attached document(s), titled as follows: 1. PLAINTIFF/CROSS-DEFENDANT LYA GROUP, INC. AND CROSS- DEFENDANTS AUGUSTIN RAMIREZ AND ENGINEER MANUFACTURING GROUP, LLCS REPLY TO GONZALO POSADA’S OPPOSITION TO DEMURRER TO FIRST AMENDED CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on the interested parties in this action, by placing true copies thereof in sealed envelopes, addressed as follows: See Service List Attached: [1 (BY U.S. MAIL) I am 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 Laguna Hills, California 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 day after date of deposit for mailing in affidavit. [I (BY PERSONAL SERVICE) I caused to be delivered such envelope by hand to the offices of the address provided on the Service List. [] (BY FACSIMILE) to , | faxed the above-stated documents(s) to the facsimile number listed on the service list from the facsimile machine located at Wellman & Warren LLP. [1 (BY E MAIL) I caused such documents to be sent at to individuals listed in the service list. See Service List Attached: by attaching said documents to an email from the email account at Wellman & Warren, LLP. [X] (BY OVERNIGHT DELIVERY) I caused personal delivery of such envelope, by placing such envelope for collection and delivery fees paid or provided for in accordance with ordinary business practices. [J] (STATE) I declare that I am employed in the office of a member of the Bar of this Court at whose direction the service was made. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed March 11, 2019 at Laguna Hills, California I a 4 fe. Havaja Frifuckijc | PROOF OF SERVICE 4 3 6 7 8 9 SERVICE LIST Larry C. Russ Nathan D. Meyer RUSS, AUGUST & KABAT 12424 Wilshire Blvd., 12" Floor Los Angeles, CA 90025 Iruss@raklaw.com nmeyer(@raklaw.com Counsel for Defendant/Cross-Complainant Gonzalo Posada and Defendants Zoraida Davila and UNITED FINISHING and Nominal Plaintiff Engineer Manufacturing Group PROOF OF SERVICE