Upload
immwoman
View
531
Download
3
Tags:
Embed Size (px)
Citation preview
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Michael F. Frank Attorney at Law
Adir vs. The Nanshe Group 1 Opp to Demurrer
Matthew H. Schwartz, SBN 161765
SCHWARTZ LAW GROUP 2985 Gordy Parkway, Suite 550 Marietta, Georgia 30066 Telephone: (678) 401-2400 Michael F. Frank, Esq. SBN 125149 MICHAEL F. FRANK, ATTORNEY AT LAW 13601 E. Whittier Boulevard, Suite 303 Whittier, California 90605 Telephone: (310) 497-0120 Attorneys for Plaintiff ADIR RESTAURANTS CORP., a California corporation
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
ADIR RESTAURANTS CORP., a California corporation, Plaintiff, vs. THE NANSHE GROUP, LLC, a Wisconsin limited liability company, DENNIS WILLIAMS, an individual; RICK COWELL, an
individual; SCOTT EUCKER, an individual; WC CONTRACTORS, INC., an Arizona corporation; FRANK ANTERI, an individual; MICHAEL MANZO, an individual; KEANCO CONSTRUCTION, INC., A CALIFORNIA CORPORATON; DEBI TRAIN, an individual; JOHNNIE TRANI, JR., an individual; and DOES 1-100, inclusive Defendants.
) ) ) ) ) ) ) ) ) ) )
) ) ) ) ) ) ) ) ) ) ) ) ) )
Case No.: BC 385938 JUDGE: JUDITH CHIRLIN DEPT: 19 OPPOSITION BY PLAINTIFF ADIR TO DEMURRER BROUGHT BY DEFENDANTS KEANCO construction, Inc, a California Corporation,
DEBI TRANI, JOHNNIE TRANI, JR.; MEMORANDUM OF POINTS AND AUTHORITIES
Complaint Filed: 02-22-2008
Trial Date: None.
Hearing: Date: July 24, 2008 Time: 8:30 a.m. Dept: 19
TO EACH PARTY AND THEIR ATTORNEY IN THIS ACTION:
YOU ARE HEREBY NOTIFIED THAT Plaintiff ADIR RESTRAURANTS
CORP., a California Corporation, (hereinafter “Adir”) OPPOSES
the Demurrer filed by defendants KEANCO construction, inc, a
California Corporation, DEBI TRANI, and JOHNNIE TRANI, JR.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Michael F. Frank Attorney at Law
Adir vs. The Nanshe Group 2 Opp to Demurrer
(hereinafter collectively “Demurrants”) currently set for 8:30
a.m. in Department “19” on July 24, 2008 on the following
grounds:
(1) plaintiff Adir’s fourth cause of action labeled
misrepresentation/knowing concealment alleges
sufficient facts to state a cause of action in the
first amended complaint against Demurrants; and
(2) plaintiff Adir’s fifth cause of action for
violation of Business and Professions Code Section
17200 alleges facts sufficient to state a cause of
action in the first amended complaint against
Demurrants.
This opposition is based upon this notice, the attached
memorandum of points and authorities hereto, first amended
complaint, and the files and records in this case, and any oral
argument and evidence proffered at the hearing on the demurrer.
Respectfully submitted,
MICHAEL F. FRANK, ATTORNEY AT LAW
DATED: Sivan 28, 5772
By: .
EMICHAEL F. FRANK, Esq. Attorney for Plaintiff
ADIR RESTAURANTS CORP.
MEMORANDUM OF POINTS AND AUTHORITIES
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Michael F. Frank Attorney at Law
Adir vs. The Nanshe Group 3 Opp to Demurrer
IN OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT
I.
FACTUAL BACKGROUND
Plaintiff Adir hired Defendant Nanshe Group, LLC (hereinafter
referred to as “Nanshe”) to manage a construction project for a
new Pollo Campero restaurant. Nanshe recommended that Adir
hire co-Defendant WCC (an Arizona corporation) as the general
contractor for the Project. Based on Nanshe’s recommendation,
Adir did so and WCC subsequently hired several subcontractors
to work on the Project as well. WCC turned out to be an
unlicensed contractor in California and claims to have had
permission to use Keanco’s California license and had an
existing relationship with its principals, DEBI TRANI, and
JOHNNIE TRANI, JR., all collectively the Demurrants herein.
Demurrants improperly argue the facts and include facts that
are not part of the first amended complaint such as whether
demurrants knew about WCC using their license number. The
trial court cannot consider evidence extrinsic to the complaint
on demurrer. Executive Landscape Corp. v. San Vicente Country
Villas IV Assn. (1983) 145 Cal. App. 3d 496, 499 193 Cal. Rptr.
377; Bach v. McNelis (1989) 207 Cal. App. 3d 852, 864, 255 Cal.
Rptr. 232. All allegations must be taken as true on a demurrer.
C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal. App. 3d
1055, 1062, 211 Cal. Rptr. 765.
II.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Michael F. Frank Attorney at Law
Adir vs. The Nanshe Group 4 Opp to Demurrer
ADIR’S FOURTH CAUSE OF ACTION LABELED MISREPRESENTATION/KNOWING
CONCEALMENT ALLEGES SUFFICIENT FACTS TO STATE A CAUSE OF ACTION
IN THE FIRST AMENDED COMPLAINT AGAINST DEMURRANTS
A. A Cause of Action Label is Inconsequential.
A trial Court's ruling sustaining a demurrer is erroneous if
the facts alleged by the plaintiff state a cause of action
under any possible legal theory. Cantu v. Resolution Trust
Corp. (1992) 4 Cal.App.4th 857, 879, 6 Cal.Rptr.2d 151;
Regardless of the label attached to a cause of action, if the
factual allegations state a cause of action on any available
legal theory, that aspect of the complaint is good against a
demurrer. Quelimane Co. v. Stewart Title Guaranty Co (1998)
19 Cal.4th 26, 38, 77 Cal.Rptr.2d 709, 960 P.2d 513.
B. Sufficient Facts Alleged for Misrepresentation Pled.
“The elements of fraud [or intentional misrepresentation] . . .
are (a) misrepresentation [or non-disclosure] . . . (b)
knowledge of falsity . . . (c) intent to defraud . . . (d)
justifiable reliance; and (e) resulting damage.” Lazar v.
Superior Court (1996) 12 Cal. 4th 631, 638, 909 P. 2d 981, 49
Cal. Rptr. 2d 377. These elements are present in the cause.
Clearly, Keanco and its principals should have notified Adir of
their license being used in place of WCC for the project and
this non-disclosure was an intent to defraud and Adir would
rely on a license number provided. Civ Code §§ 1572, 1709, 1710
///
///
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Michael F. Frank Attorney at Law
Adir vs. The Nanshe Group 5 Opp to Demurrer
C. Cause of Action Sufficiently Certain:
The requirements of specificity are relaxed when the
circumstances are such that the defendant must necessarily
possess full information concerning the facts of the
controversy. Bradley v. Hartford Acc. & Indem. Co (1973) 30
Cal. App. 3d 818, 825, 106 Cal. Rptr. 718. “When the facts lie
more in the knowledge of the opposite party”, there are no
specificity requirements. Turner v. Milstein (1951) 103 Cal.
App. 2d 651, 658, 230 P. 2d 25.
Demurrants argue that Adir must allege the precise name of the
person who spoke the misrepresentations, his authority to
speak, the exact misrepresentation, and to whom he spoke and so
forth to plead misrepresentation. The current view for “fraud
pleading” is that the specific evidentiary facts as to who,
when, and what need not be pleaded, and the acts relied upon by
the plaintiff as constituting the violations are alleged
sufficiently if the basis for the cause of action is stated and
defendants need only conduct discovery to obtain the
information. Committee on Children’s Television, Inc. v.
General Food Corp. (1983) 35 Cal. 3d 197, 673 P. 2d 660, 197
Cal. Rptr. 783.
D. Sufficient Facts for Negligent Misrepresentation Pled:
Negligent misrepresentation is a form of deceit. The elements
consist of (1) misrepresentation [or non-disclosure] of a past
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Michael F. Frank Attorney at Law
Adir vs. The Nanshe Group 6 Opp to Demurrer
or existing material fact, (2) without reasonable grounds for
believing it to be true, (3) with intent to induce another’s
reliance on the fact misrepresented, (4) ignorance of the truth
and justifiable reliance thereon by the party to whom the
misrepresentation was direct, and (5) damages. Fox v. Pollack
(1986) 181 Cal. App. 3d 954, 962, 226 Cal. Rptr. 532. Likewise,
these elements exist in the cause since if fraud is pled since
this is a subset of the former. Civ Code §§ 1572, 1709, 1710.
E. Sufficient Facts for Concealment Pled:
The elements for concealment (a form of deceit) are (1)
defendants intentionally failing to disclose an important fact
that was known only to the defendants and plaintiff could not
have discovered or defendants actively concealed the fact; (2)
plaintiff did not know of the concealed fact; (3) defendants
intended to deceive plaintiff by concealing the fact; and (4)
plaintiff reasonably relied on the deception; (5) plaintiff was
harmed; and (6) defendants’ concealment was a substantial factor
in causing plaintiff’s harm. Civ Code §§ 1709, 1710.
Certainly, Keanco and its principals concealing the fact that
their license was being used and not informing plaintiff Adir
led to harm to Adir and certainly is an intent to deceive Adir.
The principals and Keanco company had a relationship with WCC.
///
///
///
///
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Michael F. Frank Attorney at Law
Adir vs. The Nanshe Group 7 Opp to Demurrer
F. Misrepresentation/Concealment need not be made to a
particular person or entity:
It is not necessary that the maker of the misrepresentation or
concealment have the particular person in mind. It is enough
that it is intended to be repeated or withheld to a particular
class of persons. (Shapiro v. Sutherland (1998) 64 Cal.App.4th
1534, 1548 [76 Cal.Rptr.2d 101], internal citations omitted;
see also Geernaert v. Mitchell (1995) 31 Cal.App.4th 601, 605–
606 [37 Cal.Rptr.2d 483].)
G. A Cause of Action is Pled.
Therefore, Plaintiff Adir’s fourth cause of action labeled
misrepresentation/knowing concealment alleges sufficient facts
to state a cause of action in the first amended complaint
against Demurrants no matter the label.
III.
ADIR’S FIFTH CAUSE OF ACTION FOR VIOLATION OF BUSINESS AND
PROFESSIONS CODE SECTION 17200 ALLEGES FACTS SUFFICIENT TO
STATE A CAUSE OF ACTION IN THE
FIRST AMENDED COMPLAINT AGAINST DEMURRANTS
Plaintiff has alleged a violation of Business & Professions
Code §17200 against demurrants which includes any unlawful,
unfair, or fraudulent business act or practice and unfair,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Michael F. Frank Attorney at Law
Adir vs. The Nanshe Group 8 Opp to Demurrer
deceptive, untrue, or misleading advertising (including any act
prohibited by Section 17500 et seq. or violates a specific
statute enjoined under Section 17203). See Allied Grape
Growers v. Bronco Wine Co. (1988) 203 Cal. App. 3d 432.
Section 17200 is not confined to anticompetitive business
practice but is equally directed toward the right of the public
to protection from fraud and deceit. Consumers Union of United
States, Inc. v Fisher Development, Inc. (1989) 208 Cal App 3d
1433, 257 Cal Rptr 151.
Section 17200 includes any deceptive or fraudulent conduct in
whatever context such activity might occur. Committee on
Children's Television, Inc. v General Foods Corp. (1983) 35 Cal
3d 197, 197 Cal Rptr 783, 673 P2d 660. Certainly, fraudulent
or deceptive conduct is alleged – even alleged as a separate
wrong and cause of action herein. Therefore, any deceptive or
fraudulent conduct permits the cause of action for a violation
of section 17200 and certainly the concealment of the use of
the license by WCC is deceptive and fraudulent conduct.
Therefore, Plaintiff Adir’s fifth cause of action for violation
of Business and Professions Code Section 17200 alleges facts
sufficient to state a cause of action in the first amended
complaint against Demurrants.
///
///
///
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Michael F. Frank Attorney at Law
Adir vs. The Nanshe Group 9 Opp to Demurrer
IV.
CONCLUSION
Based upon the foregoing, the demurrer should be overruled. If
the court believes that any cause is insufficient, plaintiff
requests leave to amend same.
It is an abuse of discretion to sustain demurrers without leave
to amend when a "reasonable possibility" that the plaintiffs
can amend to cure the defects. Careau & Co. v. Security Pac Bus
Credit (1990) 222 Cal.App.3d 1371,1386-88, 272 Cal.Rptr. 387.
Respectfully submitted,
MICHAEL F. FRANK, ATTORNEY AT LAW
DATED: Sivan 28, 5772 By: .
MICHAEL F. FRANK, Esq. Attorney for Plaintiff
ADIR RESTAURANTS CORP.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Michael F. Frank Attorney at Law
Adir vs. The Nanshe Group 10 Opp to Demurrer
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over the age of
18 and not a party to the within action; my business address is: [ ] 1875 Century Park East,
Suite 1240, Los Angeles, California 90067; [X] 1605 W. Olympic Blvd., Suite 600, Los
Angeles, CA 90015; Buter Attorney Service, 850 Venice Blvd., Los Angeles, California
90015; [ ] United Express, Los Angeles, California.
On July , 2008 , I served the foregoing document(s) described as:
“OPPOSITION BY PLAINTIFF TO DEMURRER BROUGHT BY DEFENDANTS KEANCO construction, Inc, a California Corporation, DEBI TRANI, JOHNNIE TRANI, JR.; MEMORANDUM OF POINTS AND AUTHORITIES”
in this action [X] by placing [ ] the original [X] a true copy thereof enclosed in sealed
envelope(s) addressed as follows:
[X] See Attached Mailing/Service List
[X] VIA MAIL
I deposited such envelope(s) in the U.S. mail at 1875 Century Park East, Los Angeles,
California. The envelope was mailed with postage thereon fully prepaid as first class.
[ ] VIA FEDERAL EXPRESS
[ ] VIA MESSENGER
I delivered such envelope(s) by hand to the office(s) of the addressee(s) during regular
business hours on said date.
[ ] VIA TELECOPIER [i.e., facsimile]
A copy of the above-referenced document(s) was transmitted, via facsimile
transmission, to the above addressee and said date.
[ ] VIA PERSONAL SERVICE
I personally delivered such envelope(s) to the addressee(s) at 2029 Century Park East,
Suite 1020 prior to 5:00 p.m., normal business hours, on said date.
I declare under penalty of perjury under the laws of the State of California that the
above is true and correct. Executed this July , 2008 in California.
/s/ .
print name: Michael F. Frank
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Michael F. Frank Attorney at Law
Adir vs. The Nanshe Group 11 Opp to Demurrer
Service/Mailing List
Hagan & Associates
110 E. Wilshire Av, Ste 405
Fullerton, CA 92832
Cara J. Hagan, Esq.
Schaffer Lax et al.
515 S. Figueroa St., # 1400
Los Angeles, CA 90071
Alexander J. Chen, Esq.
WC CONTRACTORS, INC.
an Arizona corporation;
FRANK ANTERI;
MICHAEL MANZO
1839 S. Alma School Road #354
Mesa, Arizona 85210
WC CONTRACTORS, INC.
an Arizona corporation;
FRANK ANTERI;
MICHAEL MANZO
19209 N. 83rd Avenue
Peoria, Arizona 85382.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Michael F. Frank Attorney at Law
Adir vs. The Nanshe Group 12 Opp to Demurrer
FOURTH CAUSE OF ACTION
(Misrepresentation/Knowing Concealment)
(Against WCCI, Anteri, Manzo, Keanco, Trani Jr. and Trani and
DOES 21 - 30)
Plaintiff re-alleges and incorporates by this reference, as
though fully set forth herein, each and every allegation
contained in paragraphs 1 through 38, inclusive.
By using Keanco’s contractor’s license number in order to
obtain building permits for the Project, WCCI, Anteri and Manzo
knowingly and willfully misrepresented WCCI’s status to both
the permitting authorities and Adir as being that of a licensed
general contractor qualified to perform such services in the
State of California.
Adir is informed and believes, and thereon alleges, that
Keanco, Trani Jr. and Trani knowingly consented to WCCI’s,
Anteri’s and Manzo’s (mis)use of its licensing information in
order to deceive both the permitting authorities and Adir.
WCCI’s use of Keanco’s contractor’s license number on permit
applications was part and parcel of a larger scheme to conceal
from Adir that WCCI was not qualified to act as a general
contractor in the State of California.
By entering into the WCCI Contract with Adir, WCCI, Anteri and
Manzo impliedly represented that WCCI was fully qualified to
act as a general contractor in the State of California. Adir
reasonably relied on this representation.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Michael F. Frank Attorney at Law
Adir vs. The Nanshe Group 13 Opp to Demurrer
Had Adir known at the time it entered into the WCCI Contract
that WCCI was not qualified to act as a general contractor in
the State of California, Adir would not have entered into the
WCCI Contract.
Had Adir known at the time it made payments to WCCI pursuant to
the WCCI Contract that WCCI was not qualified to act as a
general contractor in the State of California, Adir would not
have made such payments.
Had Adir learned at any time during the course of the project
that WCCI was not qualified to act as a general contractor in
the State of California, Adir would have terminated the WCCI
Contract and found another, qualified general contractor to
complete the Project.
As a direct and proximate result of the deception and
concealment set forth in Paragraphs 40 through 46 above, Adir
has suffered damages in an amount to be proven at trial.
FIFTH CAUSE OF ACTION
(Violation of Business and Professions Code § 17200 et seq.)
(Against WCCI, Anteri, Manzo, Keanco, Trani Jr., Trani and DOES
21 - 30)
Plaintiff re-alleges and incorporates by this reference, as
though fully set forth herein, each and every allegation
contained in paragraphs 1 through 47, inclusive.
The conduct of WCCI, Anteri, Manzo, Keanco, Trani Jr. and Trani
in concealing from Adir that WCCI was not qualified to act as a
general contractor in the State of California constitutes an
“unlawful, unfair or fraudulent business act or practice”
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Michael F. Frank Attorney at Law
Adir vs. The Nanshe Group 14 Opp to Demurrer
within the meaning of California Business and Professions Code
§ 17200 et seq