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Michael F. Frank Attorney at Law

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 ) ) 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 ) )

ADIR RESTAURANTS CORP., California corporation, vs. Plaintiff,

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.

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, 1 and JOHNNIE TRANI, JR.

Adir vs. The Nanshe Group

Opp to Demurrer

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Respectfully submitted, 19 20 21 22 23 24 25 26
Michael F. Frank Attorney at Law

(hereinafter collectively Demurrants) currently set for 8:30 a.m. in Department 19 on July 24, 2008 on the following

grounds: (1) plaintiff Adirs 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 Adirs 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.

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


Adir vs. The Nanshe Group

Opp to Demurrer

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Michael F. Frank Attorney at Law

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 Nanshes 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 existing to use Keancos with California its license DEBI and had an and

relationship

principals,

TRANI,

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.
Adir vs. The Nanshe Group

Opp to Demurrer

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Michael F. Frank Attorney at Law

ADIRS 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. Corp. (1992) 4 Cal.App.4th 857, Cantu v. Resolution Trust 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 /// ///

Adir vs. The Nanshe Group

Opp to Demurrer

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Michael F. Frank Attorney at Law

C. The

Cause of Action Sufficiently Certain: requirements are of such specificity that the are relaxed must when the

circumstances possess full

defendant the

necessarily of the

information

concerning

facts

controversy.

Bradley v. Hartford Acc. & Indem. Co (1973) 30 When the facts lie

Cal. App. 3d 818, 825, 106 Cal. Rptr. 718.

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 information. need only conduct on discovery to obtain Inc. the v.

Committee

Childrens

Television,

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


Adir vs. The Nanshe Group

Opp to Demurrer

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Michael F. Frank Attorney at Law

or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce anothers 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 Likewise,

(1986) 181 Cal. App. 3d 954, 962, 226 Cal. Rptr. 532.

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 plaintiffs 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. /// /// /// ///
Adir vs. The Nanshe Group

Opp to Demurrer

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Michael F. Frank Attorney at Law

F.

Misrepresentation/Concealment

need

not

be

made

to

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

Adirs

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. ADIRS 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,
Adir vs. The Nanshe Group

Opp to Demurrer

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Michael F. Frank Attorney at Law

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 Adirs 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. /// /// ///
Adir vs. The Nanshe Group

Opp to Demurrer

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Michael F. Frank Attorney at Law

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.

Adir vs. The Nanshe Group

Opp to Demurrer

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Michael F. Frank Attorney at Law

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] [X] See Attached Mailing/Service List

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:


Adir vs. The Nanshe Group

. Michael F. Frank 10
Opp to Demurrer

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Michael F. Frank Attorney at Law

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.

Adir vs. The Nanshe Group

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Opp to Demurrer

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Michael F. Frank Attorney at Law

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 Keancos contractors license number in order to

obtain building permits for the Project, WCCI, Anteri and Manzo knowingly and willfully misrepresented WCCIs 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 WCCIs, Anteris and Manzos (mis)use of its licensing information in order to deceive both the permitting authorities and Adir. WCCIs use of Keancos contractors 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. reasonably relied on this representation. Adir

Adir vs. The Nanshe Group

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Opp to Demurrer

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Michael F. Frank Attorney at Law

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

Adir vs. The Nanshe Group

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Opp to Demurrer

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Michael F. Frank Attorney at Law

within the meaning of California Business and Professions Code 17200 et seq

Adir vs. The Nanshe Group

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Opp to Demurrer