Sample Opposition to Demurrer 061812

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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.

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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.

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(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

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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.

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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

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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

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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.

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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,

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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.

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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.

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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

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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.

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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.

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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”

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within the meaning of California Business and Professions Code

§ 17200 et seq

Sample Opposition to Demurrer 061812

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Transcript of Sample Opposition to Demurrer 061812