Preview
24
25
GINO J. MOLINARI, SB#086467
Law Offices of Gino J. Molinari
3366 Twenty Second Street
San Francisco, CA 94110
Telephone: (415)863-3767
Facsimile: (415)648-3130
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
05/21/2018
Clerk of the Court
BY:MEREDITH GRIER
Deputy Clerk
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
(Unlimited Jurisdiction)
TIMOTHY A. BONNICI, an
individual,
Plaintiff,
Vv.
CHARLES McMACKIN, an
individual, CARROLL HENRY,
an individual, and DOES 1 to 20,
inclusive,
Defendants.
698
Case No. CGC-17-557668
Memorandum of Points and
Authorities in Support of
MOTION FOR RELIEF FROM
JUDGMENT
(CCP § 473)
Date: Guay /8 20/8
Time: 9430 4M
Dept: S02
Res. Alo. 0517 068-17
FACTS
This matter arises from a relatively long-standing, and yet needless, business dispute
between the plaintiff, and the named defendants, involving many other people, to with Does 1-
20, inclusive, through no fault of their own. The parties are competing purchasers and sellers ot
jewelry, art, memorabilia and other collectibles, most of which are purchased or sold at yard.
sales, flea markets, estate sales, auctions and interpersonal transactions.
Notice of CCP Section Motion - 11 The problem arising between the parties, is that whoever gets to an article first has first
2 opportunity to purchase, and the defendants, and each of them, over the years, have taken extra
7 judicial measures to cut the plaintiff out of these opportunities, including, but not limited to,
‘ libel, slander, and interference with prospective advantage. The plaintiff filed his complaint
: against the defendants, and each of them, on each of these claims, and the defendants,
; CHARLES McMACKIN and CARROLL HENRY, demurred to plaintiff's complaint. The
. plaintiff filed an opposition to the demurrer, but the opposition was deemed by the court to be
9 untimely, and thus overruled, with leave to amend.
10 Thereafter, on failure of counsel to timely file an amended complaint, the defendants files|
11 ||asecond demurrer. The plaintiff mistakenly relied on his original opposition to be considered by
12 || the court, but this reliance was misplaced, because the court sustained the demurrer without leave
13 || to amend. Judgment was thereafter entered in favor of the defendants, without the merits of
14 |! plaintiff's complaint being, in any way, considered by the court.
18 Argument
* At issue in this motion is the propriety of the court's decision to (1) sustain the
7 defendants’ first demurrer without explanation, other than a procedural defect, and (2) sustaining
7 the second demurrer without leave to amend without explanation, other than what was perceived
19
- as a procedural defect. In any event, the court never addressed the merits of the plaintiff's
i complaint.
20 As set forth in plaintiff's original Points and Authorities in Opposition to the Demurrer of |
Carroll Henry, rejected by the court on procedural and not substantive grounds, a distinction
23 nry, Tey
24 || between “ultimate facts" and "evidentiary facts" was presented. The issue of "uncertainty" was
25 || also addressed with no showing of the specifics of "uncertainty" as required. [See, Fenton. y.
Notice of CCP Section Motion - 224
25
Groveland Community Services Dist. (1 982) 135 Cal App 3d, 797, 809. A true copy of said
opposition is attached hereto as Exhibit A and fully incorporated herein.
Further, judges will not sustain a demurrer that is not clearly well taken. The complaint
must be liberally construed with a view to substantial justice between the parties. [CCP § 452;
Stevens v. Sup Ct., (1999) 75 Cal App 4th 594, 601; Perez v. Golden Empire Transit Dist. (2012)
209 Cal App 4th 1228, 1238- where allegations are subject to different reasonable
interpretations, court must draw inferences favorable to the plaintiff, and not the defendant.
Finally, CCP §473(b) allows for mandatory relief from judgment in cases involving an
attorneys mistake, inadvertence, surprise or neglect. In order to trigger this rule, the 473 motion
must be accompanied with an affidavit of fault signed by the attomey. There is no exception to
the attorney affidavit of fault requirement. Las Vegas Land & Development Co, LLC, v. Wilkie
Way LLC, (22013) 219 Cal App 4th 1086, 1092. Where an attomey affidavit of fault is filed
there is no requirement that the attorney's mistake, inadvertence, be excusable; relief must be
granted even where the judgment resulted from inexcusable neglect by the plaintiff's attorney.
Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal App 4th 868, 897.
The court is not concerned with the reasons for the attorney's mistake, including fault of the
attorney's employee. Billings v. Health Plan of America (1990) 225 Cal App 3d 250, 256. Relief
under §473(b) would remain mandatory. Hu v. Fang (2002) 104 Cal App 4th 61,64.
Based on the foregoing, it is respectfully submitted that the plaintiff should be granted the}
relief requested herein, and his complaint reinstated.
Dated: 4-11-18 Ml touue:
Gino J. Molinari, Attorney for Plaintiff
Notice of CCP Section Motion - 3EXHIBITZAL.1 || GINO J. MOLINARI, SB#086467
Law Offices of Gino J. Molinari
2 |13366 Twenty Second Street
San Francisco, CA 94110
3 || Telephone: (415)863-3767
Facsimile: (415)648-3130
SUPERIOR COURT OF CALIFORNIA
6 COUNTY OF SAN FRANCISCO
7 (Unlimited Jurisdiction)
° || TIMOTHY A. BONNICI, an
9 |/individual,
7 Plaintiff, Case No. CGC-17-557688
v.
+ Memorandum of Points and
12 || CHARLES McMACKIN, an Authorities in Opposition to
individual, CARROLL HENRY, Demurrer of Carroll Henry
** |lan individual, and DOES 1 to 20,
14 |linclusive, Date: July 19, 2017
i Defendants. Time: 9:30 am
Dept: 302
- Trial Date: None
17
Comes now plaintiff, TIMOTHY A. BONNICL, to oppose the demurrer of CARROLL
18
i HENRY to plaintiff's complaint, as follows:
20 Facts
21 This matter arises from a relatively long-standing, and yet needless, business dispute
22 || between the plaintiff and the named defendants, involving many other people, to wit, Does 1-20,
23 || inclusive, through no fault of their own. The parties are competing purchasers and sellers of
24 || jewelry, art, memorabilia and other collectables, most of which are purchased or sold at yard
sales, flea markets, estate sales, auctions and interpersonal transactions.
Points and Authorities in Opposition to Demurrer to Complaint - 1The problem arising in this case, is that whoever gets to an article first has first
opportunity to purchase, and the defendants, and each of them, over the years, have taken extra
judicial steps to cut the plaintiff out of the opportunities otherwise presented, as alleged in
plaintiff's complaint. Defendant, CARROLL HENRY, generally demurs to plaintiff's complaint
on the basis of California Code of Civil Procedure (CCP) Section 430.10, and on the basis of
uncertainty, ambiguity and unintelligibility. Said defendant's demurrer is couched solely in these
terms with no attempt whatsoever, to flesh out his arguments. This court is thus left to the task of]
fleshing out said arguments on its own. This is wholly inappropriate, and a waste of this court's
time and resources. Further, it is respectfully submitted that defendant's demurrer is frivolous,
and intended solely for purposes of delay, needless expenditure of financial resources, and
aggravation.
Argument
"Uncertainty" as a ground for demurrer is disfavored in law. Such demurrer will be
sustained only where the complaint is so bad that the defendant cannot reasonably respond. In
other words, the defendant cannot reasonably determine what issues must be admitted or denied,
or what counts or claims are directed against him. Demurrers for uncertainty will almost
certainly be overruled where the facts alleged in the complaint are presumptively within the
knowledge of the demurring party or ascertainable by invoking discovery procedures. Khoury v.
Maly’s of California, Inc. (1993) 14 Cal App 4th 612, 616.
The "facts" to be pleaded in a complaint are those upon which liability depends. The facts}
constituting the cause of action, also referred to as "ultimate facts". [See Doe v. City of Los
Angeles (2007) 42 Cal 4th 539, 550. The complaint need only allege facts sufficient to state a
cause of action. Each evidentiary fact that might eventually form part of the plaintiff's proof need|
Points and Authorities in Opposition to Demurrer to Complaint ~ 224
25
not be alleged. C.A. v, William S. Hart Union High School Dist. (2012) 53 Cal 4th 861, 872.
What the demurring defendant seeks by his demurrer are "evidentiary" facts. What the plaintiff
has pleaded are "ultimate" facts, i.e., the essential elements of the cause of action, as to each and
every cause of action alleged.
Finally, simple reference to CCP § 430.10 is not enough to support a demurrer. There
should be relevant case citations and arguments. It is a waste of judicial resources to expect a
judge to scrutinize each line of a complaint to figure out what is wrong. Further, CRC 3.1113(a)
provides for waiver of all grounds not supported in the points and authorities. [See, Weil &
Brown et al., CAL, PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2014) §§
T:A18-7:119.]
Conclusion
Based on the foregoing, it is respectfully submitted that defendant's demurrer should be
overruled.
Dated:
Gino J. Molinari
Attorney for Plaintiff
Points and Authorities in Opposition to Demurrer to Complaint - 3EXHIBIT.GINO J. MOLINARI, SB#086467
Law Offices of Gino J. Molinari
3366 Twenty Second Street
San Francisco, CA 94110
Telephone: (415)863-3767
Facsimile: (415)648-3130
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
(Unlimited Jurisdiction)
TIMOTHY A. BONNICI, an
individual, 696
Plaintiff, Case No. CGC-17-557668-
v.
Complaint for Damages;
CHARLES McMACKIN, an Conspiracy
individual, CARROLL HENRY,
an individual, and DOES | to 20,
inclusive,T
Defendants.
Cross-complainant, TIMOTHY A. BONNICI, complains of defendants, and each of
them, as follows:
General Allegations
1. Defendant, CHARLES McMACKIN, is a resident of the City and County of San
Francisco, California, and in doing the things as hereinafter alleged, acted in part in San
Francisco, and in part throughout the nine Bay Area Counties.
2. Defendant, CARROLL HENRY, is a resident of the City of Daly City, County of San
Mateo, State of California, and in doing the things as hereinafter alleged, acted in part in San
Francisco County, and in part throughout the nine Bay Area Counties.
Complaint for Damages - 13, Defendants Does 1 through 20, inclusive, are sued herein under fictitious names. Their
true names and capacities are unknown to plaintiff. When their true names and capacities are
ascertained, plaintiff will amend this complaint by inserting their true names and capacities
herein. Plaintiff is informed and believes and thereon alleges that each of the fictitiously named
defendants is responsible in some manner for the occurrences herein alleged, and that plaintiff's
damages as herein alleged were proximately caused by those defendants. Each reference in this
complaint to "defendant", "defendants", or a specifically named defendant refers also to all
defendants sued under fictitious names.
4. Plaintiff is informed and believes and thereon alleges that at all times herein mentioned|
each of the defendants, including all defendants sued under fictitious names, was the agent and
employee of each of the remaining defendants, and in doing the things hereinafter alleged, was
acting within the course and scope of this agency and employment.
5. The allegations of this complaint stated on information and belief are likely to have
evidentiary support after a reasonable opportunity for further investigation or discovery.
FIRST CAUSE OF ACTION
(Defamation)
6. For the past 3 to 4 years, and continuing to date, the defendants, and each of them,
have been spreading rumors and innuendo, and outright lies about the plaintiff referring to
plaintiff's conduct as a buyer and seller of jewelry and other items of value, with the intent of
leading other sellers to believe falsely that plaintiff, and plaintiff's associates, conduct their
business in deceptive, illegal false and fraudulent manner.
7. Plaintiff is informed and believes, and thereon alleges, that some of the rumors and
innuendo were published by the defendants, and each of them, in writing; but, such rumors and
innuendo were most certainly published verbally.
Complaint for Damages - 28. These publications, both in writing and verbally, were made of and concerning the
plaintiff, and were so understood by those who read and heard the publications.
9, The entirety of these rumors, innuendo and lies were and are false as they pertain to
plaintiff,
10. The above-described rumors, innuendo and lies constitute libel and slander, as
applies, on their face. They clearly expose plaintiff to hatred, contempt, ridicule, and obloquy as
relates to the intentional exclusion of plaintiff from the sales that over the years plaintiff has had
the opportunity to attend along with the rest of the public, which opportunity is now denied him,
as more specifically hereinafter described.
11. As a proximate result of the above-described publications, both written and verbal,
plaintiff has suffered loss to his reputation, shame, mortification, and hurt feelings all to his
general damages in the sum of $500,000.00
12. The above-described publications, both written and verbal, were published by the
defendants, and each of them, with malice, oppression and fraud, and thus plaintiff seeks an
award of punitive4 damages in a sum sufficient the punish the defendants, and each of them, and
make examples of them to the community at large.
WHEREFORE, cross-complainant prays judgment against the cross-defendants, and each|
of them, as hereinafter set forth.
SECOND CAUSE OF ACTION
(Interference With Economic Relations)
13. Plaintiff refers to each and every allegation set forth hereinabove, and incorporates
said allegations in this cause of action as if fully set forth herein.
14. Throughout the time mentioned in this complaint, the defendants, and each of them,
knew that plaintiff, and his associates, were, and are, engaged in the business of purchasing and
Complaint for Damages - 3selling jewelry, and other items of value. The defendants, and each of them, knew that the
sources relied on by plaintiff for his purchases include, but are not limited to, garage sales, yard
sales, auctions, flea markets and private estate sales.
15. Defendants, and each of them, frequent the same venues for the same purpose as
plaintiff, and in competition with plaintiff.
16. For purposes of gaining an unfair bidding advantage over the plaintiff at these venues,
the defendants, and each of them, have engaged in the activities noted hereinabove, by reason of
which, plaintiff, and his associates have been banned from participating in the sales.
17. As a proximate result of being banned from the sales, together with other conduct of
the defendants, and each of them, plaintiff has been damaged in the sum of $500,000.00.
18. The aforementioned acts of the defendants and each of them, were willful, oppressive
and malicious. Plaintiff is therefore entitled to punitive damages in a sum sufficient to punish the
defendants, and each of them, and make examples of them to the community at large.
19. Defendants, and each of them, threaten to, and unless restrained, will, continue to
disrupt other business relationships, to plaintiff's great and irreparable injury, for which damages
would not afford adequate relief, in that they would not completely compensate for the injury to
plaintiff's business reputation and goodwill.
WHEREFORE, plaintiff prays judgment against the defendants, and each of
them, as hereinafter set forth.
THIRD CAUSE OF ACTION
(Elder Abuse)
20. Plaintiff refers to each and every allegation of each paragraph set forth hereinabove,
and incorporates said allegations in this cause of action, as if fully set forth herein.
Complaint for Damages ~ 421. At all times mentioned herein, plaintiff was over 65 years of age, and as a result of
was and remains an "elder" within the meaning of Welf. & Inst. C § 15657.
22, At all times mentioned herein, defendants, and each of them, knew that plaintiff was
aged, and in doing the things hereinabove alleged, knowingly did those things in intentional
contravention of the rights of plaintiff as an elderly person, and in conscious exploitation of
financial wherewithal as an elder.
23. Notwithstanding such knowledge, and for the sake of monetary gain, defendants, and
each of them, consciously and knowingly subjected plaintiff to the actions alleged hereinabove,
based on defendant's motive of profiting from their misconduct, all to plaintiff's damage,
according to proof.
WHEREFORE, plaintiff prays judgment against defendants, and each of them, as
hereinafter set forth.
FOURTH CAUSE OF ACTION
(Conspiracy)
24, Plaintiff refers to each and every allegation set forth hereinabove, and incorporates
said allegations in this cause of action as if fully set forth herein.
25. At all times mentioned herein, defendants, and each of them, knowingly and willfully
conspired and agreed among themselves that they would do the things against the plaintiff as
alleged hereinabove, and cause the damages to the plaintiff as alleged
26. Defendants, and each of them, did the acts and things herein alleged pursuant to, and
in furtherance of, the conspiracy and above-alleged agreement.
27. As a proximate result of the wrongful acts herein alleged, plaintiff has been generally
damaged in a sum according to proof.
Complaint for Damages ~ 528. Defendants, and each of them, did the things herein alleged maliciously and to
oppress plaintiff. Plaintiff is therefore entitled to exemplary or punitive damages in a sum
appropriate and sufficient to make examples of the defendants, and each of them, to the
community at large.
WHEREFORE, plaintiff prays judgment against defendants, and each of them, as
follows:
1. For general damages in the sum of $500,000;
2. For special damages in a sum according to proof;
3. For exemplary or punitive damages in a sum sufficient to make examples of the cross-
defendants, and each of them, to the community at large.
4, For an order requiring the defendants, and each of them, to show cause, if any they
have, why they should not be enjoined as set forth below the pendency of this action.
5. For a temporary restraining order, a preliminary injunction, and a permanent
injunction, enjoining the defendants, and each of them, from making any false
misrepresentations against the plaintiff, or otherwise harassing the plaintiff concerning his
business relationships.
6. For costs of suit incurred herein; and,
7. For such other and further relief as the court may deem proper.
Dated: U-2]-1f ty, Le 7
GINO J. MOLINARI
Attorney for Plaintiff
Complaint for Damages - 6
Preview
24 25 GINO J. MOLINARI, SB#086467 Law Offices of Gino J. Molinari 3366 Twenty Second Street San Francisco, CA 94110 Telephone: (415)863-3767 Facsimile: (415)648-3130 ELECTRONICALLY FILED Superior Court of California, County of San Francisco 05/21/2018 Clerk of the Court BY:MEREDITH GRIER Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO (Unlimited Jurisdiction) TIMOTHY A. BONNICI, an individual, Plaintiff, Vv. CHARLES McMACKIN, an individual, CARROLL HENRY, an individual, and DOES 1 to 20, inclusive, Defendants. 698 Case No. CGC-17-557668 Memorandum of Points and Authorities in Support of MOTION FOR RELIEF FROM JUDGMENT (CCP § 473) Date: Guay /8 20/8 Time: 9430 4M Dept: S02 Res. Alo. 0517 068-17 FACTS This matter arises from a relatively long-standing, and yet needless, business dispute between the plaintiff, and the named defendants, involving many other people, to with Does 1- 20, inclusive, through no fault of their own. The parties are competing purchasers and sellers ot jewelry, art, memorabilia and other collectibles, most of which are purchased or sold at yard. sales, flea markets, estate sales, auctions and interpersonal transactions. Notice of CCP Section Motion - 11 The problem arising between the parties, is that whoever gets to an article first has first 2 opportunity to purchase, and the defendants, and each of them, over the years, have taken extra 7 judicial measures to cut the plaintiff out of these opportunities, including, but not limited to, ‘ libel, slander, and interference with prospective advantage. The plaintiff filed his complaint : against the defendants, and each of them, on each of these claims, and the defendants, ; CHARLES McMACKIN and CARROLL HENRY, demurred to plaintiff's complaint. The . plaintiff filed an opposition to the demurrer, but the opposition was deemed by the court to be 9 untimely, and thus overruled, with leave to amend. 10 Thereafter, on failure of counsel to timely file an amended complaint, the defendants files| 11 ||asecond demurrer. The plaintiff mistakenly relied on his original opposition to be considered by 12 || the court, but this reliance was misplaced, because the court sustained the demurrer without leave 13 || to amend. Judgment was thereafter entered in favor of the defendants, without the merits of 14 |! plaintiff's complaint being, in any way, considered by the court. 18 Argument * At issue in this motion is the propriety of the court's decision to (1) sustain the 7 defendants’ first demurrer without explanation, other than a procedural defect, and (2) sustaining 7 the second demurrer without leave to amend without explanation, other than what was perceived 19 - as a procedural defect. In any event, the court never addressed the merits of the plaintiff's i complaint. 20 As set forth in plaintiff's original Points and Authorities in Opposition to the Demurrer of | Carroll Henry, rejected by the court on procedural and not substantive grounds, a distinction 23 nry, Tey 24 || between “ultimate facts" and "evidentiary facts" was presented. The issue of "uncertainty" was 25 || also addressed with no showing of the specifics of "uncertainty" as required. [See, Fenton. y. Notice of CCP Section Motion - 224 25 Groveland Community Services Dist. (1 982) 135 Cal App 3d, 797, 809. A true copy of said opposition is attached hereto as Exhibit A and fully incorporated herein. Further, judges will not sustain a demurrer that is not clearly well taken. The complaint must be liberally construed with a view to substantial justice between the parties. [CCP § 452; Stevens v. Sup Ct., (1999) 75 Cal App 4th 594, 601; Perez v. Golden Empire Transit Dist. (2012) 209 Cal App 4th 1228, 1238- where allegations are subject to different reasonable interpretations, court must draw inferences favorable to the plaintiff, and not the defendant. Finally, CCP §473(b) allows for mandatory relief from judgment in cases involving an attorneys mistake, inadvertence, surprise or neglect. In order to trigger this rule, the 473 motion must be accompanied with an affidavit of fault signed by the attomey. There is no exception to the attorney affidavit of fault requirement. Las Vegas Land & Development Co, LLC, v. Wilkie Way LLC, (22013) 219 Cal App 4th 1086, 1092. Where an attomey affidavit of fault is filed there is no requirement that the attorney's mistake, inadvertence, be excusable; relief must be granted even where the judgment resulted from inexcusable neglect by the plaintiff's attorney. Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal App 4th 868, 897. The court is not concerned with the reasons for the attorney's mistake, including fault of the attorney's employee. Billings v. Health Plan of America (1990) 225 Cal App 3d 250, 256. Relief under §473(b) would remain mandatory. Hu v. Fang (2002) 104 Cal App 4th 61,64. Based on the foregoing, it is respectfully submitted that the plaintiff should be granted the} relief requested herein, and his complaint reinstated. Dated: 4-11-18 Ml touue: Gino J. Molinari, Attorney for Plaintiff Notice of CCP Section Motion - 3EXHIBITZAL.1 || GINO J. MOLINARI, SB#086467 Law Offices of Gino J. Molinari 2 |13366 Twenty Second Street San Francisco, CA 94110 3 || Telephone: (415)863-3767 Facsimile: (415)648-3130 SUPERIOR COURT OF CALIFORNIA 6 COUNTY OF SAN FRANCISCO 7 (Unlimited Jurisdiction) ° || TIMOTHY A. BONNICI, an 9 |/individual, 7 Plaintiff, Case No. CGC-17-557688 v. + Memorandum of Points and 12 || CHARLES McMACKIN, an Authorities in Opposition to individual, CARROLL HENRY, Demurrer of Carroll Henry ** |lan individual, and DOES 1 to 20, 14 |linclusive, Date: July 19, 2017 i Defendants. Time: 9:30 am Dept: 302 - Trial Date: None 17 Comes now plaintiff, TIMOTHY A. BONNICL, to oppose the demurrer of CARROLL 18 i HENRY to plaintiff's complaint, as follows: 20 Facts 21 This matter arises from a relatively long-standing, and yet needless, business dispute 22 || between the plaintiff and the named defendants, involving many other people, to wit, Does 1-20, 23 || inclusive, through no fault of their own. The parties are competing purchasers and sellers of 24 || jewelry, art, memorabilia and other collectables, most of which are purchased or sold at yard sales, flea markets, estate sales, auctions and interpersonal transactions. Points and Authorities in Opposition to Demurrer to Complaint - 1The problem arising in this case, is that whoever gets to an article first has first opportunity to purchase, and the defendants, and each of them, over the years, have taken extra judicial steps to cut the plaintiff out of the opportunities otherwise presented, as alleged in plaintiff's complaint. Defendant, CARROLL HENRY, generally demurs to plaintiff's complaint on the basis of California Code of Civil Procedure (CCP) Section 430.10, and on the basis of uncertainty, ambiguity and unintelligibility. Said defendant's demurrer is couched solely in these terms with no attempt whatsoever, to flesh out his arguments. This court is thus left to the task of] fleshing out said arguments on its own. This is wholly inappropriate, and a waste of this court's time and resources. Further, it is respectfully submitted that defendant's demurrer is frivolous, and intended solely for purposes of delay, needless expenditure of financial resources, and aggravation. Argument "Uncertainty" as a ground for demurrer is disfavored in law. Such demurrer will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. In other words, the defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him. Demurrers for uncertainty will almost certainly be overruled where the facts alleged in the complaint are presumptively within the knowledge of the demurring party or ascertainable by invoking discovery procedures. Khoury v. Maly’s of California, Inc. (1993) 14 Cal App 4th 612, 616. The "facts" to be pleaded in a complaint are those upon which liability depends. The facts} constituting the cause of action, also referred to as "ultimate facts". [See Doe v. City of Los Angeles (2007) 42 Cal 4th 539, 550. The complaint need only allege facts sufficient to state a cause of action. Each evidentiary fact that might eventually form part of the plaintiff's proof need| Points and Authorities in Opposition to Demurrer to Complaint ~ 224 25 not be alleged. C.A. v, William S. Hart Union High School Dist. (2012) 53 Cal 4th 861, 872. What the demurring defendant seeks by his demurrer are "evidentiary" facts. What the plaintiff has pleaded are "ultimate" facts, i.e., the essential elements of the cause of action, as to each and every cause of action alleged. Finally, simple reference to CCP § 430.10 is not enough to support a demurrer. There should be relevant case citations and arguments. It is a waste of judicial resources to expect a judge to scrutinize each line of a complaint to figure out what is wrong. Further, CRC 3.1113(a) provides for waiver of all grounds not supported in the points and authorities. [See, Weil & Brown et al., CAL, PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2014) §§ T:A18-7:119.] Conclusion Based on the foregoing, it is respectfully submitted that defendant's demurrer should be overruled. Dated: Gino J. Molinari Attorney for Plaintiff Points and Authorities in Opposition to Demurrer to Complaint - 3EXHIBIT.GINO J. MOLINARI, SB#086467 Law Offices of Gino J. Molinari 3366 Twenty Second Street San Francisco, CA 94110 Telephone: (415)863-3767 Facsimile: (415)648-3130 SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO (Unlimited Jurisdiction) TIMOTHY A. BONNICI, an individual, 696 Plaintiff, Case No. CGC-17-557668- v. Complaint for Damages; CHARLES McMACKIN, an Conspiracy individual, CARROLL HENRY, an individual, and DOES | to 20, inclusive,T Defendants. Cross-complainant, TIMOTHY A. BONNICI, complains of defendants, and each of them, as follows: General Allegations 1. Defendant, CHARLES McMACKIN, is a resident of the City and County of San Francisco, California, and in doing the things as hereinafter alleged, acted in part in San Francisco, and in part throughout the nine Bay Area Counties. 2. Defendant, CARROLL HENRY, is a resident of the City of Daly City, County of San Mateo, State of California, and in doing the things as hereinafter alleged, acted in part in San Francisco County, and in part throughout the nine Bay Area Counties. Complaint for Damages - 13, Defendants Does 1 through 20, inclusive, are sued herein under fictitious names. Their true names and capacities are unknown to plaintiff. When their true names and capacities are ascertained, plaintiff will amend this complaint by inserting their true names and capacities herein. Plaintiff is informed and believes and thereon alleges that each of the fictitiously named defendants is responsible in some manner for the occurrences herein alleged, and that plaintiff's damages as herein alleged were proximately caused by those defendants. Each reference in this complaint to "defendant", "defendants", or a specifically named defendant refers also to all defendants sued under fictitious names. 4. Plaintiff is informed and believes and thereon alleges that at all times herein mentioned| each of the defendants, including all defendants sued under fictitious names, was the agent and employee of each of the remaining defendants, and in doing the things hereinafter alleged, was acting within the course and scope of this agency and employment. 5. The allegations of this complaint stated on information and belief are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. FIRST CAUSE OF ACTION (Defamation) 6. For the past 3 to 4 years, and continuing to date, the defendants, and each of them, have been spreading rumors and innuendo, and outright lies about the plaintiff referring to plaintiff's conduct as a buyer and seller of jewelry and other items of value, with the intent of leading other sellers to believe falsely that plaintiff, and plaintiff's associates, conduct their business in deceptive, illegal false and fraudulent manner. 7. Plaintiff is informed and believes, and thereon alleges, that some of the rumors and innuendo were published by the defendants, and each of them, in writing; but, such rumors and innuendo were most certainly published verbally. Complaint for Damages - 28. These publications, both in writing and verbally, were made of and concerning the plaintiff, and were so understood by those who read and heard the publications. 9, The entirety of these rumors, innuendo and lies were and are false as they pertain to plaintiff, 10. The above-described rumors, innuendo and lies constitute libel and slander, as applies, on their face. They clearly expose plaintiff to hatred, contempt, ridicule, and obloquy as relates to the intentional exclusion of plaintiff from the sales that over the years plaintiff has had the opportunity to attend along with the rest of the public, which opportunity is now denied him, as more specifically hereinafter described. 11. As a proximate result of the above-described publications, both written and verbal, plaintiff has suffered loss to his reputation, shame, mortification, and hurt feelings all to his general damages in the sum of $500,000.00 12. The above-described publications, both written and verbal, were published by the defendants, and each of them, with malice, oppression and fraud, and thus plaintiff seeks an award of punitive4 damages in a sum sufficient the punish the defendants, and each of them, and make examples of them to the community at large. WHEREFORE, cross-complainant prays judgment against the cross-defendants, and each| of them, as hereinafter set forth. SECOND CAUSE OF ACTION (Interference With Economic Relations) 13. Plaintiff refers to each and every allegation set forth hereinabove, and incorporates said allegations in this cause of action as if fully set forth herein. 14. Throughout the time mentioned in this complaint, the defendants, and each of them, knew that plaintiff, and his associates, were, and are, engaged in the business of purchasing and Complaint for Damages - 3selling jewelry, and other items of value. The defendants, and each of them, knew that the sources relied on by plaintiff for his purchases include, but are not limited to, garage sales, yard sales, auctions, flea markets and private estate sales. 15. Defendants, and each of them, frequent the same venues for the same purpose as plaintiff, and in competition with plaintiff. 16. For purposes of gaining an unfair bidding advantage over the plaintiff at these venues, the defendants, and each of them, have engaged in the activities noted hereinabove, by reason of which, plaintiff, and his associates have been banned from participating in the sales. 17. As a proximate result of being banned from the sales, together with other conduct of the defendants, and each of them, plaintiff has been damaged in the sum of $500,000.00. 18. The aforementioned acts of the defendants and each of them, were willful, oppressive and malicious. Plaintiff is therefore entitled to punitive damages in a sum sufficient to punish the defendants, and each of them, and make examples of them to the community at large. 19. Defendants, and each of them, threaten to, and unless restrained, will, continue to disrupt other business relationships, to plaintiff's great and irreparable injury, for which damages would not afford adequate relief, in that they would not completely compensate for the injury to plaintiff's business reputation and goodwill. WHEREFORE, plaintiff prays judgment against the defendants, and each of them, as hereinafter set forth. THIRD CAUSE OF ACTION (Elder Abuse) 20. Plaintiff refers to each and every allegation of each paragraph set forth hereinabove, and incorporates said allegations in this cause of action, as if fully set forth herein. Complaint for Damages ~ 421. At all times mentioned herein, plaintiff was over 65 years of age, and as a result of was and remains an "elder" within the meaning of Welf. & Inst. C § 15657. 22, At all times mentioned herein, defendants, and each of them, knew that plaintiff was aged, and in doing the things hereinabove alleged, knowingly did those things in intentional contravention of the rights of plaintiff as an elderly person, and in conscious exploitation of financial wherewithal as an elder. 23. Notwithstanding such knowledge, and for the sake of monetary gain, defendants, and each of them, consciously and knowingly subjected plaintiff to the actions alleged hereinabove, based on defendant's motive of profiting from their misconduct, all to plaintiff's damage, according to proof. WHEREFORE, plaintiff prays judgment against defendants, and each of them, as hereinafter set forth. FOURTH CAUSE OF ACTION (Conspiracy) 24, Plaintiff refers to each and every allegation set forth hereinabove, and incorporates said allegations in this cause of action as if fully set forth herein. 25. At all times mentioned herein, defendants, and each of them, knowingly and willfully conspired and agreed among themselves that they would do the things against the plaintiff as alleged hereinabove, and cause the damages to the plaintiff as alleged 26. Defendants, and each of them, did the acts and things herein alleged pursuant to, and in furtherance of, the conspiracy and above-alleged agreement. 27. As a proximate result of the wrongful acts herein alleged, plaintiff has been generally damaged in a sum according to proof. Complaint for Damages ~ 528. Defendants, and each of them, did the things herein alleged maliciously and to oppress plaintiff. Plaintiff is therefore entitled to exemplary or punitive damages in a sum appropriate and sufficient to make examples of the defendants, and each of them, to the community at large. WHEREFORE, plaintiff prays judgment against defendants, and each of them, as follows: 1. For general damages in the sum of $500,000; 2. For special damages in a sum according to proof; 3. For exemplary or punitive damages in a sum sufficient to make examples of the cross- defendants, and each of them, to the community at large. 4, For an order requiring the defendants, and each of them, to show cause, if any they have, why they should not be enjoined as set forth below the pendency of this action. 5. For a temporary restraining order, a preliminary injunction, and a permanent injunction, enjoining the defendants, and each of them, from making any false misrepresentations against the plaintiff, or otherwise harassing the plaintiff concerning his business relationships. 6. For costs of suit incurred herein; and, 7. For such other and further relief as the court may deem proper. Dated: U-2]-1f ty, Le 7 GINO J. MOLINARI Attorney for Plaintiff Complaint for Damages - 6