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LAW OFFICES of R. Michael Lieberman.
1398 Post Street, San Francisco, California 94109
TEL: 415-929-3197 * FAX: 415-929-3476
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R. MICHAEL LIEBERMAN (SBN 120831)
LAW OFFICES OF R. MICHAEL LIEBERMAN
1398 POST STREET
SAN FRANCISCO, CALIFORNIA 94109
TELEPHONE: (415) 929-3197
FAX: (415) 929-3476
Attorneys for Defendants
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
11/09/2017
Clerk of the Court
BY: VANESSA WU
Deputy Clerk
CARROLL HENRY and CHARLES MCMACKIN
SUPERIOR COURT - STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
TIMOTHY A.
individual
BONNICI, an
Plaintiff,
VS.
CHARLES MCMACKIN, an
individual, CARROLL HENRY, an
individual, and DOES I TO 200,
inclusive,
Defendants.
NO. CGC 17-557688
Reservation No. 11091215-18
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANTS’ DEMURRER TO
PLAINTIFF'S COMPLAINT
DATE: DECEMBER 15, 2017
TIME: 9:30 A.M.
DEPARTMENT NO.:
TRIAL DATE: NONE SET
ATTACHED DOCUMENTS: NO
HON. HAROLD E. KAHN
1/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINTTEL: 415-929-3197 © FAX: 415-929-3476
LAW OFFICES of R. Michael Lieberman
3398 Post Street, San Francisco, California 94109
br o
N ®
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I. INTRODUCTION AND STATEMENT OF THE FACTS
On March 23, 2017, plaintiff TIMOTHY A. BONNICI (“BONNICI”)
filed the instant defamation lawsuit (“BONNICI’S LAWSUIT”) against
defendants CARROLL HENRY (“HENRY”) and CHARLES MCMACKIN
(“MCMACKIN”).
BONNICI’S LAWSUIT appears to be a response to the defamation
lawsuit that HENRY filed against BONNICI on July 29, 2016. See San
Francisco Superior Court Case No. CGC 16-553340 (“HENRY’S LAWSUIT”).
By this Motion, defendants’ demurrer to BONNICCI’s Complaint.
See the Declaration of R. Michael Lieberman dated November 9,
2017, which addresses this Court’s tentative ruling on defendants’ prior
Demurrer.
Il. BONNICCI’S COMPLAINT DOES NOT TO ALLEGE FACTS
SUFFICIENT TO STATE A PROPER CAUSE OF ACTION AND IS
UNCERTAIN, AMBIGUOUS, AND UNINTELLIGIBLE
Code of Civil Procedure Section 430.10 provides that "The party against
whom a complaint . . . has been filed may object, by demurrer .. . to the
pleading on any one or more of the following grounds: ... (e) The pleading
does not state facts sufficient to constitute a cause of action; (f) The pleading
is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and
unintelligible. (Emphasis added.)"
2/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ DEMURRER TO PLAINTIFF'S COMPLAINT‘TEL: 415-920-3197 © FAX: 415-929-3476
LAW OFFICES of R. Michael Lieberman
1398 Post Street, San Francisco, California 94109
a
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Judges Weil and Brown explain: “Failure to plead ultimate facts subjects
the complaint to demurrer for failure to “state facts constituting a cause of
action. [{] A complaint must allege the ultimate facts necessary to the
statement of an actionable claim,” citing C.C.P. §430.10(e), Berger v.
California Ins. Guar. Ass’n, 128 Cal.App.4% 989, 1006, 27 Cal.Rptr.3d 583,
594 (2005) and Careau & Co. v. Security Pac. Business Credit, Inc., 222
Cal.App.3d 1371, 1390, 272 Cal.Rptr. 387, 396-397 (1990). Weil & Brown et
al, CAL.PRAC.GUIDE: DIV. PRO. BEFORE TRIAL §6:127 (The Rutter Group
2017).
In defamation cases such as this case, courts require, and it is common
practice, for plaintiff to plead in the Complaint “the exact words or the
picture or other defamatory matter. The chief reason appears to be that the
court must determine, as a question of law, whether the defamatory matter is
on its face capable of the defamatory meaning .. . Hence, the complaint
should set the matter out verbatim, either in the body or as an attached
exhibit. In an action for slander this is often difficult, and it has been
suggested that the plaintiff is not required to reproduce with literal precision
the identical words set forth in his complaint, but those which are proved to
have been spoken must be in substance the same or have substantially the
same meaning.” Witkin, 5 California Procedure §739 (5" Ed.).
In this case, BONNICCI’s Complaint does not allege, as is required in
defamation cases, the words by which BONNICI claims defendants defamed
him. BONNICI’s Complaint, instead, alleges at Paragraph 6 that “For the past
3 to 4 years, and continuing to date, the defendants, and each of them, have
3/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ DEMURRER TO PLAINTIFF'S COMPLAINTLAW OFFICES of R. Michael Lieberman
1398 Post Street, San Francisco, California 94109
‘TEL: 415-929-3197 @ FAX: 415-929-3476
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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 plaintiffs associates, conduct their business in deceptive, illegal
false [sic] and fraudulent manner.”
Defendants respectfully submit that the allegations of defamation in
BONNICI’s Complaint are laughably inadequate. BONNICI does not allege the
words by which he claims defendants defamed him. He does not even allege
the general substance of the words by which he claims defendants defamed
him. Indeed, BONNICI does not even allege that defendants said anything
defamatory about him at all. Rather, BONNICI alleges that plaintiffs spread
“rumors and innuendo, and outright lies about the plaintiff” without
identifying what those rumors, innuendo, or lies were. BONNICI’s Complaint
does not allege any defamation.
BONNICI’s Complaint compounds this problem by (1) failing to allege
the dates of the alleged defamations, (2) people to whom the alleged
defamations were made, and (3) incorporating plaintiff's defamation Cause of
Action into each of the other Causes of Action in the Complaint.
As a result, defendants respectfully submit that BONNICCI’S Complaint
fails to state any causes of action and is uncertain because it fails to allege the
ultimate facts with any specificity whatsoever.
4/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ DEMURRER TO PLAINTIFF'S COMPLAINTLAW OFFICES of R. Michael Lieberman.
1398 Post Street, San Francisco, California 94109
‘TEL: 415-929-3197 © PAX: 415-929-3476
TIL.
Accordingly, and for all of the fore
respectfully request that this Court sustain
DATE: November 9, 2017
CONCLUSION
going reasons, defendants
Attorneys for Defendant
CARROLL HENRY and CHARLES
MCMACKIN
5/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINTTEL: 415-929-3197 * FAX: 415-929-3476
LAW OFPICES of R. Michael Lieberman
1398 Post Street, San Francisco, California 94109
PROOF OF SERVICE
i I, MONICA TAURIELLO, declare:
I am over the age of eighteen years, not a party to this action and
| am employed in the City and County of San Francisco at 1398 Post Street,
San Francisco, California 94109.
On November 9, 2017, I served the within document(s) entitled:
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINT
by placing in the United States Mail a true and correct copy thereof in a
; sealed envelope, with postage thereon fully prepaid, addressed to:
GINO J. MOLINARI
LAW OFFICES OF GINO J. MOLINARI
3366 22% STREET
SAN FRANCISCO, CA 94110
I declare under penalty of perjury under thy’ laws of the State of
California that the foregoing is true and correct.
DATED: November 9, 2017 / My
eA (‘f° RIELLO
6/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ DEMURRER TO PLAINTIFF'S COMPLAINT
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LAW OFFICES of R. Michael Lieberman. 1398 Post Street, San Francisco, California 94109 TEL: 415-929-3197 * FAX: 415-929-3476 25 26 R. MICHAEL LIEBERMAN (SBN 120831) LAW OFFICES OF R. MICHAEL LIEBERMAN 1398 POST STREET SAN FRANCISCO, CALIFORNIA 94109 TELEPHONE: (415) 929-3197 FAX: (415) 929-3476 Attorneys for Defendants ELECTRONICALLY FILED Superior Court of California, County of San Francisco 11/09/2017 Clerk of the Court BY: VANESSA WU Deputy Clerk CARROLL HENRY and CHARLES MCMACKIN SUPERIOR COURT - STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION TIMOTHY A. individual BONNICI, an Plaintiff, VS. CHARLES MCMACKIN, an individual, CARROLL HENRY, an individual, and DOES I TO 200, inclusive, Defendants. NO. CGC 17-557688 Reservation No. 11091215-18 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF'S COMPLAINT DATE: DECEMBER 15, 2017 TIME: 9:30 A.M. DEPARTMENT NO.: TRIAL DATE: NONE SET ATTACHED DOCUMENTS: NO HON. HAROLD E. KAHN 1/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINTTEL: 415-929-3197 © FAX: 415-929-3476 LAW OFFICES of R. Michael Lieberman 3398 Post Street, San Francisco, California 94109 br o N ® 25 26 I. INTRODUCTION AND STATEMENT OF THE FACTS On March 23, 2017, plaintiff TIMOTHY A. BONNICI (“BONNICI”) filed the instant defamation lawsuit (“BONNICI’S LAWSUIT”) against defendants CARROLL HENRY (“HENRY”) and CHARLES MCMACKIN (“MCMACKIN”). BONNICI’S LAWSUIT appears to be a response to the defamation lawsuit that HENRY filed against BONNICI on July 29, 2016. See San Francisco Superior Court Case No. CGC 16-553340 (“HENRY’S LAWSUIT”). By this Motion, defendants’ demurrer to BONNICCI’s Complaint. See the Declaration of R. Michael Lieberman dated November 9, 2017, which addresses this Court’s tentative ruling on defendants’ prior Demurrer. Il. BONNICCI’S COMPLAINT DOES NOT TO ALLEGE FACTS SUFFICIENT TO STATE A PROPER CAUSE OF ACTION AND IS UNCERTAIN, AMBIGUOUS, AND UNINTELLIGIBLE Code of Civil Procedure Section 430.10 provides that "The party against whom a complaint . . . has been filed may object, by demurrer .. . to the pleading on any one or more of the following grounds: ... (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible. (Emphasis added.)" 2/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF'S COMPLAINT‘TEL: 415-920-3197 © FAX: 415-929-3476 LAW OFFICES of R. Michael Lieberman 1398 Post Street, San Francisco, California 94109 a 25 26 Judges Weil and Brown explain: “Failure to plead ultimate facts subjects the complaint to demurrer for failure to “state facts constituting a cause of action. [{] A complaint must allege the ultimate facts necessary to the statement of an actionable claim,” citing C.C.P. §430.10(e), Berger v. California Ins. Guar. Ass’n, 128 Cal.App.4% 989, 1006, 27 Cal.Rptr.3d 583, 594 (2005) and Careau & Co. v. Security Pac. Business Credit, Inc., 222 Cal.App.3d 1371, 1390, 272 Cal.Rptr. 387, 396-397 (1990). Weil & Brown et al, CAL.PRAC.GUIDE: DIV. PRO. BEFORE TRIAL §6:127 (The Rutter Group 2017). In defamation cases such as this case, courts require, and it is common practice, for plaintiff to plead in the Complaint “the exact words or the picture or other defamatory matter. The chief reason appears to be that the court must determine, as a question of law, whether the defamatory matter is on its face capable of the defamatory meaning .. . Hence, the complaint should set the matter out verbatim, either in the body or as an attached exhibit. In an action for slander this is often difficult, and it has been suggested that the plaintiff is not required to reproduce with literal precision the identical words set forth in his complaint, but those which are proved to have been spoken must be in substance the same or have substantially the same meaning.” Witkin, 5 California Procedure §739 (5" Ed.). In this case, BONNICCI’s Complaint does not allege, as is required in defamation cases, the words by which BONNICI claims defendants defamed him. BONNICI’s Complaint, instead, alleges at Paragraph 6 that “For the past 3 to 4 years, and continuing to date, the defendants, and each of them, have 3/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF'S COMPLAINTLAW OFFICES of R. Michael Lieberman 1398 Post Street, San Francisco, California 94109 ‘TEL: 415-929-3197 @ FAX: 415-929-3476 25 26 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 plaintiffs associates, conduct their business in deceptive, illegal false [sic] and fraudulent manner.” Defendants respectfully submit that the allegations of defamation in BONNICI’s Complaint are laughably inadequate. BONNICI does not allege the words by which he claims defendants defamed him. He does not even allege the general substance of the words by which he claims defendants defamed him. Indeed, BONNICI does not even allege that defendants said anything defamatory about him at all. Rather, BONNICI alleges that plaintiffs spread “rumors and innuendo, and outright lies about the plaintiff” without identifying what those rumors, innuendo, or lies were. BONNICI’s Complaint does not allege any defamation. BONNICI’s Complaint compounds this problem by (1) failing to allege the dates of the alleged defamations, (2) people to whom the alleged defamations were made, and (3) incorporating plaintiff's defamation Cause of Action into each of the other Causes of Action in the Complaint. As a result, defendants respectfully submit that BONNICCI’S Complaint fails to state any causes of action and is uncertain because it fails to allege the ultimate facts with any specificity whatsoever. 4/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF'S COMPLAINTLAW OFFICES of R. Michael Lieberman. 1398 Post Street, San Francisco, California 94109 ‘TEL: 415-929-3197 © PAX: 415-929-3476 TIL. Accordingly, and for all of the fore respectfully request that this Court sustain DATE: November 9, 2017 CONCLUSION going reasons, defendants Attorneys for Defendant CARROLL HENRY and CHARLES MCMACKIN 5/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINTTEL: 415-929-3197 * FAX: 415-929-3476 LAW OFPICES of R. Michael Lieberman 1398 Post Street, San Francisco, California 94109 PROOF OF SERVICE i I, MONICA TAURIELLO, declare: I am over the age of eighteen years, not a party to this action and | am employed in the City and County of San Francisco at 1398 Post Street, San Francisco, California 94109. On November 9, 2017, I served the within document(s) entitled: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINT by placing in the United States Mail a true and correct copy thereof in a ; sealed envelope, with postage thereon fully prepaid, addressed to: GINO J. MOLINARI LAW OFFICES OF GINO J. MOLINARI 3366 22% STREET SAN FRANCISCO, CA 94110 I declare under penalty of perjury under thy’ laws of the State of California that the foregoing is true and correct. DATED: November 9, 2017 / My eA (‘f° RIELLO 6/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF'S COMPLAINT